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1
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iffl
A DIGEST
I
OF
THE REPORTED CASES
DETERMINED IN THE
arts of fcmon f ato an^ (f pt
B
IN THE NOW
PROVINCE OF ONTARIO,
loM THE COMMENCEMENT OF THE REPORTS IN TRINITY TERM, 1823,.
44 QUEPLV'S BENCH.
30 COMMON PLEAS,
TO AND INCLUDING VOLUMES
2G CHANCERY, 7 PRACTICE REPORTS
4 APPEAL REPORTS, 15 LAW JOURNAL N s'
SUPREME COURT REPORTS
2 SUPREME COURT REPORTS,
WITH SOME DECISIONS FROM COUNTY COURTS, AND REFERENCES TO STATUTSS.
BY
CHRISTOPHER ROBINSON, Esq.,
ONE OF HER majesty's COUNSEL,
AND
F. J. JOSEPH, Esq.,
OF OSGOODE HALL, BARRISTER- AT-LAW.
%xi %m mx\xm%,
VOL. 1.
CONTAINING THE TITLES
ABANDONMENT to NEWSPAPERS,
I
TORONTO :
ROWSELL AND HUTCHISON.
1880.
■IMPI
i;.,„ f , tho Act of tlie l>arliamciit of Canada, in the year of our Lord
John J osevh, in the Office of the Minister of Agriculture.
R0WSEI.L k HuTCiiiBOH, PmsTins, Toronto.
ir Lord
Frank
THE HONOURABLE
JOHN HAWKINS HAGARTY,
CHIEF JUSTICE OF HER MAJESTY'S COURT OF QUEEN'S BENCH
FOR THE PROVINCE OF ONTARIO,
IS INSCRIBED
IN RECOGNITION OF MUOH PERSONAL KINDNESS,
AND AS A TRIBUTE OF RESPECT
FOR HIS
HIGH JUDICIAL CHARACTER AND LEGAL ATTAINMENTS.
PREFACE.
This Digest, with the Addenda, embraces all the reported cases
in the Superior Courts of the present Province of Ontario from the
commencement of the Reports, in 1822, to the present time— or to
the end of the Volumes mentioned in the title page, with some cases
taken from the numbers of the subsequent current Volumes.
When the prospectus of the Work issued in 1874, it was designed
to publish a digest up to that time only; but as it was to be issued
in numbers, and would take some ..ime in going through the press,
the plan was enlarged, and it was decided to include in each number
all the cases reported up to the time of its issue, and by means of
a Supplement to bring up the whole Work to the time of completing
the last number. As the result, the size of the book has been
materially increased, and it contains the decisions of six years more
than was at first contemplated. Advantage has also been taken of
the change of plan to include in. the Supplement some additional
cross references which it was thought might be useful, and to correct
such errors as have been discovered in the progress of the work.
It now includes about 125 Volumes, exclusive of the Law Journal,
more than treble the matter contained in the two previous Digests •
and to effect the compression thus rendered necessary the head notes
have been to a large extent shortened and re-arranged.
It was at first intended to omit all obsolete law, but upon
l^consideration this was abandoned, and it was thought better to include
every case, so that in the one Digest all decisions might be found.
In many instances, however, where the law has been so changed as
to make the decisions useless even as bearing by analogy on any
yI preface.
questions likely to arise now, a reference to the names of the cases
only has been given, as, for exauij)le, in the cases with reyard to
negative pn-'gnant and colour in pleading, and to the exclusion of
witnesses by reason of interest.
The an-angenient adopted has been that of Mr. Fisher, which,
founded upon that of Mr. Harrison, has become familiar to tlie
Profession, and is believed to be the most generally approved.
The Editors are nmch indebted to Mr. T. W. Taylor, Q.C, the
Master in Chancery, who has been kind enough to peruse the subjects
with which his experience had made him more especially familiar,
such as Mortgage, and Pleading and Practice in Equity ; to Mr.
HusoN W. M. Murray, and Mr. H. J. Scott, who have read most
of the proof sheets ; and to Mr. Trevelyan Ridout, who, with the
late Mr. Wethey, has rendered valuable assistance in the passage of
the work through the Press.
Toronto,
December, 1880.
(Slhkf lusticts anil Jutiges
OF TUB
SUPREME O'Oirr of the dominion of CANADA,
AND or
THE SUPERIOR COURTS
OF THE
PROVINCE OF ONTARIO. FORMERLY UPPER CANADA,
From thb Constitution of the Province under 31 Geo. III., c. 31 (17»0-1),
TO the I'ltESENT TlMK.
■ ««» ■■
SUPREME COURT AND EXCHEQUER COURT.
CHIEF JUSTICES.
Hon. Sir William Buell Richards,
■fr-
„ ^^J Appointed Stli of October, 1875.
Hon. William JoHxsTONE Ritchie . . « 11th of January, 1879.
JUDGES.
Hon. William Johnstone Ritchie ., Appointed 8th of October, 1876
Hon. Samuel Henry Strong « gth of October, 1875.'
Hon. Jean Thomas Taschereau. ..... « gth of October, 1875.
Hon. Telksphore Fournier .. gth of October, 1875.
Hon. William Alexander Henry. . . « stn of October, 1875
Hon. Henri Elzear Taschereau .... - 7th of October, 1878".
Hon. John Wellington Gwynne .... •< uth of January, 1879
COURT OF ERROR AND APPEAL.
PRESIDING JUDGES AND CHIEF JUSTICES.
Hon. Sir John Beverley Robinson,
Bart., C.B Appointed 18th of March, 186^.
Hon. Archibald McLean « 22ud of J uly, 1863.
Hon. William Hbnry Draper, C.B . . « 20th of October, 1868.
Hon. Thomas Moss . 30,,^ ^, ^^^^J
viii CHIEF JirSTICKS AND .MUMJKS OF
JUIXIKS.
Hon. Sib James Hurn \nan Maoaulay,
Knt r Appoiiitwl 23nl of July, lfl57.
Hon. Wilmam Hpmk Bf.akk " iL'tli of Mnrcli, 1H(J4.
Hon. Samitki. Henry Sthono " 27tli of May, 1874.
Hon. Geouoe William Burton " .'lOtli of May, 1874.
Hon. CiiBisToriiER Salmon Patterson •' Otli of Juno, 1874.
Hon. Thomas Moss " 8tli of Octohoi', 187;>.
Hon. Joseph Curran Morrison .... " 3UtIi of Novoiuber. 1877.
NoTP. ny 34 (ten. III. c. 2, and 7 Will. IV. c. 2, .appeals were allownd from tho Court of
King's liciich ami Cliancery, to thu (fovernor and ('oiincil, who composud a Court of Appeal.
By 12 Viot. c. f).3, a new appellate Court was t'KtiiMiKliod, called the "Court of Krror and
.\ppoal," composed of the.ludgcs of tho Courts of Queen's Henoh, Common Pleas, and Chancery.
By 20 Vict. c. !>, the (lovernor miuht appoint any retired .Fudge of those Courts as an
additional .Tudge in Appeal. (.See Consol Stat. U. C. c. IS. See also 24 V. c. .Id, 25 V. c. 18.)
Tho present (>ourt of Appeal was established by the 37 Vict. c. 7, O., now II. S. O. c. 38.
By 39 Vict. c. 7, s. 22, the style of the Court was changed to " The Crmrt of Appeal."
The presiding .luilge, by 32 Vict. o. 24, s. 1, ()., was styled "Chief Justice of Appeal"
until the death of Chief .Instico Harrmon, Ist of November, 1878, since which date ho is styled
"Chief .lustice of Ontario." (R. S. U. c. .18, s. 5.)
COURT OF KING'S (NOW QUEEN'S) BENCH.
CHIEF JUSTICES.*
Hon. William Osooode Appointed 29th of July, 1792.
Hon. John Elmsley " 2l8t of November, 1796.
Hon. Henry Aloock " 7tli of Octolier, 1802.
Hon. Thomas Scott " 6tli of Augn.st, 1806.
Hon. William Dummer Po^VELL .... " Lst of October, 1816.
Hon. Sir William Campbell, Knt. . . " 8th of December, 1825.
Hon. Sir John Beverley Robinson,
Bart., C.B '• 13th of July, 1829.
Hon. Archibald McLean " 18th of March, i862.
Hon. William Henry Draper, C.B.. " 22nd of July, 186.3.
Hon. William Buell Richards .... " 12th of November. 1868.
Hon. Robert Alexander Harbison.. " 8th of October, 1875.
Hon. John Hawkins Hag arty " 13th of November, 1878.
JUDGES.
Hon. William Dummer Powell .... Appointed 9th of July, 1794.
Hon. Henry Alcock " 30th of November, 1798.t
Hon. Thomas Cochrane " 25th of June, 1803.
* The Chief Justice of this Court, until 1878, was styled "Chief Justice of Upper Canada"
or "of Ontario."
t The Hon. Peter Rtjssell, Administrator of the Govei nment, received several commissions
between the 15th of July, 1796, and the 17th of March, 1798, to act in the absence of other
Judges. • . ■ .
TIIK rUOVINCK OF ONTAIIK).
Hon. UoiiKitT Tiioiii'K A|i|K)iiitf<l 2ltli of July, IHOr),
MkN. VViIJ.IAM CAMlMlKLf " IStll of NoVl'mlxT, IHl 1.
Hon. D'Aucy Boi-lton " I'Jtli of FolMimry, 1818.
H()\. Lrviih I'ktkiih SmkiiwooD " I'tli of October, ISlT).
Hoy. Joiiv Wai,I'oi,k Wii.i.ih " 'JCith of HoptcmlMT, 1827.
Hon. -Jamks Miiciianav Maoaulay (n) " i;Uli of July, 18'Jl).
Ilo.v. AiiciiiBAM) McLkan " 'j;5nl of Miircli, 18;J7.
Hon. Jonah Jonkh " L'.'Jnl of March, 18;J7.
Hon. Cmrihtoi'iikk Ai.k.x. IIa(ikk.man (/>) " ir)tii of F»!ltruary. 1840.
Hon. Wii.mam IIknhy Duai-ku " IlHIi of Jiiin*, 1847.
Hon. Roiikut IUluwin Sui.mvan .... " IStli of Soptombor, 1848.
Hon. RonKiiT Kaston BiruNS " 21.st of Jammry, 18.')0.
IToN. AiicHiiiAM) AIcLkan " ■')tli of Febniaiy, 18r)().
Hon. John IFawkins IIaoarty " 19th of March, 1 8G2.
Hon. Skkfpinoton Connor " Slst of Jfumary, 1803.
Hon. Joseph fuiiiiAN Morrison " '24th of Aii>,'ubt, 1803.
Hon. Auam Wilson " 12th of Noveuiber, 1808.
Hon. John Douolas Armoi'R " '^'^fh of November, 1877.
Hon, Mattiikw Crooks Cameron .... •' 1; i of Novembor, 1878.
IX
COURT OF COMMON PLEAS.
CHIEF JUSTICES.
Hon. Jame.9 Buchanan Macaulay. . . . Appoitited loth of December, li^4l>.
Hon. William Henry Draper, C.B.. " 5th (T February, 1856.
Hon. William Buell Richards .... " 22ii(l of July, 186.3.
Hon. John Hawkins Haoarty " 12th of November, 1868.
Hon. Adam Wilson " 13th of November, 1878.
JUDGES.
Hon. Archibald McLean Appointed lOtli of January, 1850.
Hon. Robert Baldwin Sullivan .... " 21st of January, 1850.
Hon. William Buell Richards .... " 22ud of June, 1853.
Hon. John Hawkins Hagarty " 5th of February, 1856.
Hon. Joseph Curran Morrison .... " 19th of March, 1862.
Hon. John Wilson " 22nd of July, 1863.
Hon. Adam Wilson " 24th of August. 1863.
Hon. John Wellington Gwynne .... " 12th of November, 1868.
Hon. Thomas Galt " 7th of June, 1869.
Hon. Featherston Osler " 5th of March, 1879.
(a) The Hon. J. B. Macaulav was on the 3rd of July, 1827, temporarily appointed a
Judge of the Court of King's Bench, in the room of the Hon. D'Arcy Boulton.
(A) The Hon. C. A. Haoerman wa« on the 26th of June, 1828, temporarily appointed a
■fudge of the Court of King's Bench, in the room of the Hon. J. W. Willis.
I
X CHANCELLORS, VICE-CHANCELLORS, ETC.
CLERK OF THE CROWN AND PLEAS OF THE COURT OF QUEEN'S BENCH.
(R. S. 0. c. 39, s. 29.)
Robert Gladstone Daltox, Q.C Appointed by R. G. T. T. 1870, (•29'
Q. B. 623,) 21st of February, 1870.
COURT OF CHANCERY.
CHANCELLORS.
Hon. William Hume Blake Appointed 29th of September, 1849.
Hon. Philip M. M. S. VanKoughnet. . •« 19th of March, 1862.
Hon. John Godfrey Spragge " 27th of December, 1869.
VICE-CHANCELLORS.
Hon. Robert Sympson Jameson Appointed 23rd of March, 1837.
Hon. James C. P. Esten " 29th of September, 1849.
Hon. John Godfrey Spkagge " 27th of December, 1850.
Hon. Oliver Mowat " 14th of November, 1864,
Hon. Samuel Henry Strong " 27tli of December, 1869.
Hon. Samuel Hume Blake " 2nd of December, 1872.
Hon. William Pkoudfoot " 30th of May, 1874.
M. ASTERS, REFEREES, AND SECRETARY.
John Godfrey Spragge Appointed Master 20th of June, 1837.
Andrew Norton Buell " Master 27th of December, 1850.
Thomas Wardlaw Taylor, Q.C Apjwinted Secretary 5th of September,
1866 ; Appointed Referee 21 at of
February, 1871 ; Appointed Master
16th of December, 1872.
John Alexander Boyd Appointed Master 31st of October, 1870.
George Smith Holmested " Referee 16thof December, 1872.
Richard Porter Stephens " Referee 1st of April, 1876.
Note.— By 7 Will. IV. ch. 2, a Court of Chancery was established for the Province of
Upper Canada, of which the Governor of the Provincb was Chancellor, and the Judicial power
whereof were exercised by a Judge, known as the Vico-Chancellor of Upper Canada. By 12
Vict. ch. 64 (C. S. U. C. ch. 12), the appointment of a Chancellor and two Vice-Chancellors
was^authorized.
MARITIME COURT.
(Established by 40 Vicx. c. 21, C.)
JUDGE. . r. ,
Kenneth Mackenzie, Esq., Q.C Appointed 12th of July, 1877.
gtinv^Uxs of Justia nnb Siiioxm^s-iBvAmt
OF THE
DOMINION OF CANADA
AND
^itoxnzj}Q-^tnzxnl mxi ^olidtoxs-(%cntxnl
FOR THE
PROVINCE OF ONTARIO, FORMERLY UPPER CANADA,
From the Conhtitution of the Province under 31 Geo. III. c. 31,
TO THE Present Time.
» «•» ■
DOMINION OF CANADA.
MINISTERS OP JUSTICE AND ATTORNEYS-GENERAL.
Et. Hon. Sir John Alexandeu Mac-
DONALD, K.C.B Appointed Ist of July, 1867.
Hon. Antoine Aimk Dohion .• 7th of November. 1S73.
Hon. Telesphore Fournier « gth of July, 1874
Hon. Edward Blake « 19^1, ,f ^^ jg^^
Hon. Rodolphe Laflamme « gth of June, 1877
Hon. James McDonald « j 7^], of October, 1878
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hov.
PROVINCE OF UPPER CANADA.
ATTORNEYS-GENERAL.
John White Appointed 29th of July, 1792
Thomah Scott <> ism
William Fikth .' .' .' .' ." ." .' . 3,.^ ,^ November, 'l 807.
John Macdonell . 28th of September, 1811
John Beverley Robinson «. 194,, of November, 1812.
.p.,. Acting Attorncy-Generah
D Arc. Boulton .. 31,^ „^ j),,,^^,,^ \^i^
John Beverlev Robinson «< j uh of February, 1818
Henry John Boulton .. 13^^ of J„iy, I8:i9
Robert Sympson Jameson " sist of June, 1833.'
Christopher Alex. Hagerman . . - 23rd of March, 1 837
r^
XII
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
ATTORNEYS AND SOLICITORS GENERAL.
William Henry Duaper Appointed 14th of February, 1840.
Robert Baldwin " 16th of September, 1842.
William Henry Draper " 2ncl of September, 1844.
Henry Sherwood " 29th of May, 1847.
Robert Baldwin " 11th of March, 1848.
William Buell Richards .... " 28th of Octobei-, 1851.
John Ross " 22nd of June, ] 853.
John Alex. Macdonald " 11th of September, 1854.
John Sandfield Macdonald . . " 2nd of August, 1858.
John Alex. Macdonald " 7th of August, 1858.
John Sandfield Macdonald . . " 24tb of May, 18G2.
John Alex. Macdonald " 30th of March, 1864.
SOLICITORS-GENERAL.
Robert Isaac Dey Gray Appointed 21st of March, 1797.
D'Arcy Boulton " 6th of November, 1805.
John Be 'erley Robinson " 6th of February, 1815.
Henry John Boulton " llth of March, 1818. Acting
Solicitor-General.
Henry John Boulton " 26th of July, 1820.
Christopher Alex. Hagerman. . " 13th of July, 1829.
William Henry Draper " 23rd of Man^i, 1837.
Robert Baldwin " 14th of February, 1840.
Henry Sherwood " 23rd of July, 1842.
James E. Small " 26th of September, 1842.
Henry Sherwood " 7th of October, 1844.
John Hill yard Cameron " 27th of June, 1846.
William Hume Blake " 22nd of Aiu-il, 1848.
John Sandfield Macdonald . . " 14th of December, 1849.
John Ross " 12th of November, 1841.
Joseph C. Morrison " 22nd of June, 1853.
Henry Smith " llth of September, 1854.
Skeffington Connor " 2nd of August, 1858.
Joseph C. Morrison " 22nd of February, 1860.
James Patton " 27th of March, 1862.
Adam Wilson " 24th of May, 1862.
Lewis Wallbridoe " 16th of May, 1863.
Albert Norton Richards .... " 26th of December, 1863.
James Cockburn " 30th of March, 1864.
PROVINCE OF ONTARIO.
ATTORNEYS-GENERAL.
Hon. John Sandfield Macdonald
Hon. Adam Crooks
Hon. Oliver Mowat
Appointed 16th of July, 1867.
" 20th of December, 1871.
" 31st of October, 1872.
OF THE
SUPREME COURT OF THE DOMINION OF CANADA,
AND OF
THE SUPERIOR COURTS
OF THE
PROVINCE OF ONTARIO, FORMERLY UPPER CANADA,
From the First Appointment under 4 Geo. iv c. 3, to the Present Time
WITH THE Volumes published by Each. '
» <»» ■
EDITOR OF THE ONTARIO REPORTS.
Christopher Robinsox, Q. C Appoir.ted 30th May, 1872,
33 Q. B. to present time ; 22 0. P. to
pi-esent time; 19 Chy. to present
time ; 7 P. R. to present time.
— ♦ »«> ■ _
REPORTERS.
SUPREME COURT.
(See 38 Vict. c. 11, ss. 71, 73, D.)
Robert Cassels, Jr. a • ^ 1 t. •
' ; Appointed Registrar 8th of October, 1875
George Duval . . ^"'f'/ f^.^^r ^^ *° 1"'^'""' *""^-
Appointed 19th January, 1876.
Vols. 1 Sup. Ct. R. to present time.
t
COURT OF APPEAL.
Alexander Grant Appointed 14th of February, 1S61.
James Stewart Tupper . . Appointed 27tli of November, 1876. (a).
^oJ»- 1 App. R. to present time.
xiv REPORTERS TO THE SUPERIOR COURTS.
COURT OF KING'S (NOW QUEEN'S) BENCH.
Thomas Taylor Appointed E. T. 4 Geo IV,, 1823.
Taylors Reports, 1 Vol., from Trinity
Term, 4 Geo. IV., 1823, to Trinity
Term, 8 Geo. IV., 1827. inclusive.
Simon E. Washburn Api)ointed 4th of May, 1829.
No Reports.
William Henry Draper Appointed 12th of November, 1829.
Draper's Reports, 1 Vol., from Michael-
mas Term, 10 Geo. IV., 1829, to
Easter Term, 1 Will. IV., 1831, in-
clusive.
Henry Sherwood Appointed 1837.
MSS. Re[)orts, Vols. 2 to 6, from Trin-
ity Term, 1 & 2 Will. IV., to Hilary
Term, 7 Will. IV.*
John Hillyard Cameron Appointed 7th of November, 1840.
MSS. Reports, 2 Vols., and Vols. I
jind 2 Q, B
James Lukin Robinson Appointed 6th of August, 1846.
Vols. 2 to 5 O. S. inclusive ; Vols. 3 to
13 Q. B., inclusive.
Christopher Robinson, Q.C Appointed 29th of November, 1856.
Vols. 6 O. S. and Vols, 14 to 32 Q. B.,
inclusive.
Henry C. W. Wethey Appointed 30th May, 1872.
Vols. 33 to 42 Q. B. inclusive.
Salter J. VanKoughnet Appointed 25th of June, 1878.
Vol. 43 Q. B. to the present time.
COURT OF COMMON PLEAS.
Edward C. Jones Appointed 5th of September, 1850.
Vols. 1 to 14 C. P. inclusive.
Salter J. VanKoughnet Appointed 27th of August, 1864.
Vols. 15 to 21 C. P. inclusive, and part
of Vol. 22 C. P.
George Frederick Harman Appointed 7th of December, 1872.
Part of Vol. 22 C. P. to the present time
COURT OF CHANCERY.
Alexander Grant Appointed 19th of June, 1845.
Cases reported in 1 O. S. (2 U. C. Jurist).
Vols. 1 Chy. to the jn-e-sent time.
* Moat of these MSS. Reporti are to be found in Vols. 2 to 6, O. S., and 1 Q. B.
REPORTERS TO THE SUPERIOR COURTS. ^
COMMON LAW CHAMBERS.
Henry O'Brien ... a • x i n , „
Ai)i)ointed 8th of September, 18G6.
TO ^ Vols. 4 to G P. R.
Jamks Stewart Tupppb *,,«-.
"^^^ App. nited 27tb of June, 1876
^<''- " P- R-
William Jigertov Ppkhitp a • , ,
PERDUE Appointed 1st of March, 1879.
Vol. 8 P. R. to the present time.
Court of Queen's Be„cl^the 4 beS then rrti:'""'f p"' """ ^^'^^^ ^^-« Reporters to the
Common Law Chambers. ^ authorized Keporter to the Practice O^urt or
CHANCERY CHAMBERS.
Charles W. Cooper . . a • . , , ^ ,
Appointed 12th of February. 1867.
Hexry O'Brien . ^''''- ^ ^'^ ^ ^'^y- ^''»'^»'^- i"el»sive.
Appointed l4th of February, 1873
T o Vol. 6 P. R.
James Stewart Tuppfr *
^^^^^ Appointed 27th of June, 1876.
Vol 7 P R
Thomas Taylor Rolph a -"^ j i " . ,
• • Appointed 1st of March, 1879.
Vol. 8 P. R. to prenent time.
iff
ABBREVIATIONS.
A. J. Act Administiation of Justice Act.
App. R Api)eal Reports.
f'. C County Court.
C. C. & P Clerk of the Crown and Pleas.
C. L. C'hamb Common Law Chambers — Common Law Chambers Reports.-
C. L. P. Act Common Law Procedure Act.
C. P Common Pleas — Common Pleas Reports.
C. S. C Consolidated Statutes of Canada.
C. S. U. C Consolidated Statutes of U[)per Canada.
Chy Court of Chancery — Chancery Re])orts, (Grant).
Chy. Chamb Chancery Chambers — Chancery Chambers Reports. v
D Dominion Statutes.
D. C Division Court.
Dra Dra|)er's Reports. i
K ifc A Error and Appeal Reports.
E. C Contested Election Court.
L. J Upper Canada Law Journal.
L. J. N. S Upper Canada Law Journal, New Series.
M. C Maritime Court.
M. O Master's Office.
Ont Ontario Statutes.
0. S *01d Series of King's and Queen's Bench Reports.
P. R Practice Reports.
Q. B Queen's Bench — Queen's Bench Reports (generally quoted
U. C. R.)
Q, S Quarter Sessions.
K. & H. Dig Robinson & Harrison's Digest.
R. G Rules of Court.
R. S, O Revised Statutes of Ontario.
S. C Same Case.
Sup. Ct. R Supreme Court Reports.
Tay Taylor's Rej)orts.
• Cases referred to merely as of the Term in which they were decided, e. <j. " Totten v.
Fletclmr, T. T. 2 & 3 Vict.," p. 3, have never been published.
Vol. I O. S. embraces Vols. 1 and 2 Upper Canada Jurist, which contain decisions of the
Court of Chancery. Vols. 2 to 6 0. S. contain cases decided in the King's (now Queen's) Bench,
and Practice Court.
AN
ANALYTICAL DIGLST
III- iiir.
COMMON LAW AND EQUITY REPORTS
OI' TllK
PROVINCE OF ONTARIO.
T.
II
III,
IV
AI!AM)()XMEXT.
Ov f'o.NTIiACT— *'f Co.N-ntAlT.
Of Exkcutiox— ,Sw Executiox.
Of Sinps on f'Amio— ,sVc Ixsukanck.
LAPWEt) 01! AnANlK)NEl) llVLZfi—Src Vn \.r.
THE AT Law.
Of r(;i!cnA«x; of Land-.S'.c Sale of
Land.
I(,
III.
I v.
11.
III.
IV.
V.
VI.
VII.
ABATEMENT.
Of Ur.sT Sir Las i)i,on\) a.vd Tenant.
Of .Xri.sANCES— ,SVr T.VJl-NlTIOX — Nll.s-
ANCE.
Of SriTs -,s', c Action an d Surr-Pit vnui'
IN EyiMTV.
I'I.EAS IN — ,SVr I'|.EAI.|N(; AT Law.
Or Pi-J!ci[A.sE Mo.Njov OX Sale of Lino—
iSiC 8l'EtIFIC I'EUFOKMANt'E.
ABSCOXDIXO DEBTOll.
AlTACiniENT.
1. (iciiirii////, 2.
2. A£hl,trilJ\,r, 3.
3. Sirrkc. of, 3.
SriiETiEs, 4.
I'KOCEEDINO.S AFTKI! A ITAI IIME.ST, 1.
I'liloIUTV AS IWTWEEN AtTAcHIXII CliElil-
Idli.S ANII OTIIKK.S, ().
SeTOXO ASIUE Ari-ACIIMEXT, 8.
I'Koi'EEnixfi.s AOAix.sT Deutou of All-
«'ONl)lN(! DeUTOJ!, 8.
Ml.SCELLANEOUS CaSES, 9.
>SVr AiiREST,
Pl.EA()|Nfi IX
Vlir. PitocEEDixoH IX Arrest-
IX. .'-Jekvice of Hii.i S(r
E(il'lTV.
X, Oin-AtxiNo Decree ani> Orkers i-ro
CONFESSO A(fAlX.ST— .SVt PltACTICE JX
Eiifrrv.
I. Attachment.
1. OciKni//'/.
\Tlii orh/liKi/ Ar/.s, ..' 117//. /r. <•//. .7, „ii,/,5 l['i/t.
IV. •■h. .',, (ii-r amiiiiliil mill, roiiKolhlalcd liif C. S,
r. ('. <■/, 2r>, ir/i!rh mi^ f„rm<rl!i I'arl of the C,
L. I . Art, IH.iil. The cimiitjis tlun made, are
sliitri/ In //m-risoii'.f iiotot to that Stutntv.]
Vonn (if attacliinent; undur 2 Will. IV. oh. 5
I Mihjhun V. /'iii(/rr, 2 < >. S. 2'J2.
[ The ucmit will only gnmt an attachment for
Hiini.s curtani, and where such an allidavit could ho
made a.s would enable a iilaintifl without a
judge's order to sue out l)ailal)le process. Cluck
V. J //(VA/, ,-)(). S. 504.
The ])iTii»erty of a person usually residing in
the r lilted States, hut who employs persons
here and comes frei[ucntly to superintend their
work, may lie attached under 2 Will. IV c 5
Furdv. Lii.'<h(r, HO. H. 4:'2S. '
Where a person usually residing in Scotland,
while here, to settle some all'airs, referred some
disputes concerning them, and an award was
made against liiin, not payable until nearly two
years alter he had returned to Scotland : -Held,
that he did not conic within the Act. Taiilor y
yirholf, 1 (J. I!. 4 Hi. J ■
Seiiible, that a debtor whose family resided in
the L lilted States, but wlio for several months
was in this Province purchasing horses for tlio
U. S. army, and contraetin','aebt3 therefor, with
-m
PI
ABSCONDlNc; JJEBTOK.
the (leLhvRMl iiittiiticiii nf iiuivinj^ permftuciitly
into Ciiii.-ula, wan sutKt'iL'iitl.N :i loidt'iitof F|)]H'r
<'iiiiaila tip lie witliiii tlif Aft. Unjii'msw Jlrm/i/,
10 L .). '-'(kS. ('. L. Cliamli. A. Wilson.
SfMil.l.;, that nn.Ur stt'. .Il of ('. S. l'. ('., f.
'J"), a jnil>,'iiieiit tin; (.xccutioii iiiion wiiicli lias
l)ecn .set asiilu a.s frauilnlcnt, iindLr .soo. '2'2, may
be nsoil as a t'ounilation for a writ of attachment,
ami thus share ratably with the other creditors.
II7((7- V. Lor,/, i;i('. 'r. ■J8!».
A wi'it of attachment is jiropcrly issued by
the clerk of the process. ]\'iih\ll: hi v, Urid'c, .')
1'. \{. 77. - <'li am)). -<!wvnnc.
'J. Ajfii/iiril for.
:ut was refused where 4inly
wore to tht
A IK III. 2(). S.
An attaehmeut was reluseil wliere only one
purson busiiles the creditor swore to the alwcond
H|.»
(h'btor,
• belief.
S. 37:i
iiig or concealment.
Allidavils shnidd follow as nearly as possible
the common alhilax its of dclit. lli.
Wiicre diqionents reside far from the
they should state the grounds of thci
liit'iik of I'jijK r ('lunula V. Sjiaj/'ord, 2 O.
An attac'hnicnt was set aside, the alVKhivit
being for money lent, and not stating' liy whom.
McKiiiJi: \. A'/Vs.s7 //, -.i O. S. -MS.
A ccrtilicd eojiy of an aliidavit tiled in the
ofliceof the clerk of the crown : — Held, sullicicnt
to moveuiion. Jli.
"Has left the Province, or is concealed within
the same" :— Held sullieient. Tutleii v. FUlcher,
T. T. 2 & 3 A'ict.
The iiflidavit must on the face of it shew that
the debtor is or was a resident of Upper Canada.
Hil'ibisv. /iradi/, 10 I.. J. 268.- -C. L. Chamb.
—A. AVilson.
It is not sufficient to describe the debtor as
"lately doin" business" in Upper Canada ; nor
to describe him iis having "departed from
Canada," &e. ///.
Held, that an afHdavit c<including that " Patrick
Brady liath departed from Upper Canada, and
hath gone to the United States, with intent to
defraud (iDiiitt'iinj 'me') of my just debts, or to
avoid being arrested or served with process, " so
far as the conclusion was concerned, w.as sulli-
cicnt — the Act as well as the alKdavit lieing in
the ivlternative, and the latter alternative alone
being suiKcient. lli.
The jilaintilV need not swear that the debtor
was residing within Upper Canada, if that fact is
sworn to by others. Wuhjirlil v. linur, 5 V. l\.
"u. — Chamb. — C wyune.
It is sufticient to shew that the debtor in-
tends to defraud the plaintirts, without shewing
an intention to defraud creditors generally. Ih.
The affidavits arc not \itiated by being
intituled before the issue of the writ. //'.
The promissory notes, or tlic cause of
action, being set out fully, the indebtedness of
defendant is alleged with sufficient certainty. Jb.
3. Si'rrirc (if,
7 Vict., c. 10, s. 54, — Held binding on the
courts in Upper Canada as well as upon the
courts in Lower Canad.i. Mi-I'li, imdi v. .l/c-
Milliiii, 3 (,». H. 31.
Service of .in iittaeliincnt on (he wife of the
ilebtor will bi! allowed as good, U|iiiii affidavit
that after diligent cnipiiiy plaint itl ii unable to
ancertain the ch'litor's \\ in icibont.-i. MrDniiiinll
T. tri/r/,ri.^t, 3 I,. .1. 2S. ('. I.. ( 'hamb. Murns.
An afiidavit for the ;dlnwanco of service of
attachment should, among other things, state
what efforts h.ive lieeii made to ell'cet personal
service. S/i/i/i.ii v. />• run , '.i \.. .1. (i!!. C. I..
Chanili. - Hichnrds.
11. Srrtr.iir.s.
The sureties required from the plaintiff before
sale under 2 \\'ill. I\'. c. ,"), rejected because not
inhabitants of this Province. /irin/linn/ v.
Liiirni, ;i ( ». S. .1311.
The afiidavit of jnstilli'ation liy the tiuretics
reipiired liefore excciitiou, unist be made by
themselves. Minrnt \. l'\ii:diir, \\. T. 2 \'ict.
III. Pi;oti;i;i>iN<;.s aiti;!; AnAiii.Mt-,NT.
A plaintifr cannot take a step in a cause
founded on the attachment until the three months
allowed for the dcleudaut to jiut in bail have
exjiircd. Baiiki r v. tlnfjiii, 3 (). S. i()3.
Qiuvrc : When an attaching creditor pur-
chases at sherifl "s sale, and sues for trespass to
the property purchased, should he prove a debt
to support his attachment ? Iloydoii v. Crav:-
ford, 3 0. S. 583.
After an attachment has issued, a ride will be
granted against any fine in possession of the
(iebtor's property, to deliver it up to the sheriff
to whom the attachment is directed. Miilkiis
V. Armstrowj, M. T. 2 Vict.
In trespass against shcrifT ffir seizing goods
of the plaintiff' under an attachment issued
against the goods of a third party by whom they
had been sold to the jilaintiif before the attach-
ment, the defence was that tlie sale was fraudu-
lent and void as against creditors under 13 Kliz.
c. 5, but the sheriff' did not prove any debt from
the absconding debtor to the attachment credi-
tor : -Held, that without this his justilication
was incomplete. (Intn! v. MrLniii,'^ (). S. 443.
See also, Poirrrs v. Hiit/im, 4 (). S. 58.
The court will not ordir an attorney to pay
over nutney which has been attached in his
hands as tlie proiierty of an alisconding debtor.
Clarl- V. S/,ir<i; T. 'I'. 3 & 4 \u-t.
When real estate is attached, the sheriff must
enter and keep possession, to give operation to
the attachment against strangers. Doc d. Cri n-
V. C/iirb, M. T. 4 Vict.
A <lcbtor returning after trial and before judg-
ment': — Held entitled to a new trial, under 2
Will.' IV., c. .5. /tolicrt.s.iii V. Hiid; 5 (>. S. 75.
Proof of delit<ir's signature to a note, without
proof of plaintiffs being the jiayces, considered
sufficient jiroof of the debt. A/ijilthiii v. Dinfi r,
4 q. K 247.
Omission to put up in the crown office a copy
of the process inider 2 Will. IV., c. 5, s, (i, and
file the afiidavit required by 5 Will. IV., c, 5 s. 7,
ABSCONDINGIDEBTOK.
lii'forc taking; o'ltexocutidii :— Iluhl, invgiiliiritiuH
iiiily, not iiKikinp; voiil whivt wivh dniiu uiulor tliu
(.MiiitiiiM. />'"■ il. Ilonlliiii V, /''iniiisMdii, 't (^.
u. r.i.-..
|,(^:iv(' j^'ftiitfil to serve a)isc(iiicliiij{ (lofondant
with writ of huiiiiiioiis liy iiiailiiii; it to his ail-
ilii's^. /.//'""" V. Siiiilli, ."> L. .1. 107. t '. \i.
Cliainl'. I'.uniH.
When an attai'hineiit iiait lieeii Herveil iijhiii
the wife of a tlul)tor, who \\nn Heil to jiaits where
iiiisiilial service eaiinot lie ell'eeted, tlie ]ihiiiititl"H
(l-iiiiiiMes may lie aseertaiiie(l l)y the ejerk nf the
eiiurt, iiiick'r si!e. Ilil ('. L. I'. Aet, ISrtti. <'liti/)-
iiiKii V. I)i hiifiiii', "> L. .1. l.'tS, ( '. L. Chaiiil).
lluriis.
The )ihuiitiir had sued out an attaehniont
au'aiiist ilefendaiit, and wont down to the County
(Niiii't to [irove his ehiim, \\\w\\ a record sliewing
iiiti iliicutoi'y juili,'inent signed for want of u lilca.
hcfiiiilant aiijilied to ]dead never iiidel)ted, on
tiie iTound that such jilea liad l)uen tiled before
si"niiig the judgment : -Held, that the aj)j)Iiea-
tiiiu was rightly refused, for defendant should
have moved against the judgment if irregular,
;iii(l ciiuld not plead until he had put in special
l«ii!. ';//''.'/ V. <>.ir<Hh -'<> <.»• 15. '.WX
Held, also -Draper, ('. .!., doubting -that al-
tli(mi,'h defendant had not put in special bail, his
fdunsel should have been alloweil to cross-
examine the plaintitl's witness, and give evidence
ill mitigation of damages. III.
A judge at nisi prius nuvy allow the counsel
fur another creditor to cross-examine the plain-
titl's witnesses and to address the jury against
the plaintiff. Larlrt \. JJakcv, 13 C. V. oOt).
In an action under the Alwconding Debtors'
Act, upon a motion by an attaching creditor,
1111011 affidavits which shewed fraud and collu-
siiiii between the plaintiff and defendant to the
piejudice of the other creditors of the defend-
;iiit, a new trial was granted. //*.
One M., an attaching creditor of defendant,
aiiplied for a new- trial of this cause, which was
granted on payment of costs. The rule was
taken out but never served, and subsequently M.
gave plaintiff' notice that he had abandoned same.
On application by plaintili', on notice to M., to
!>iiew cause why said rule should not be dis-
iliarged with costs to be paid by M. : Held, that
the application by M. was in the nature of a
Liillateral proceeding, and though lie might,
wlicii vulnutarily seeking the aid of the court,
luive been ordered to pay the costs of opposing
tile rule which he had obtained, lie could not
iKiw lie ordered to pay the same when brought
liufore the court by compulsion, and not biiiig a
li;iitv to the record. Laris v. Huh; r, 14 (,'. 1'.
issue between claimant
l)iii/li v. l.w^hir, 1(! C
IViriu of interiileader
and attaching creditor.
1'. '_'(;;t.
The fact that a simple contract creditor has
sued out an attachment, does not atl'ord any
ground for coming to the Court of Chancery to
liave a conveyance alleged to be fraudulent
against the creditors of the debtor aet aside. The
creditor must first establish his right to recover
at law. Wliitiiii/ V. Lnirrd'xjn, 7 Chy. G03.
IV. I'ldoiurv AS nKTWF.KN Arr.vciirxd CrtKOi-
rolls AND III'llKliS,
A cognovit given by an absconding debtor to
defeat claims of criMlitors was si;t aside on appli-
cation of bona tide creditors, anil the money
made on execution under it ordered to be di-
vided. Jlinjiii V. J'iiiiltn; ,'{<>. S. r>74.
The 2 \Vill. IV. c. .'», gave priority to the
creditor suing out the lirst attaehineiit under
which the sheriff seized, to have his debt satis-
lied out of the goods in pnifereiice to other
attaelinient creditors who might obtain judg-
ment and execution before him, where there
were no laches on his part in the proceeding to
judgment. (lUnilil'' v. Jiirrin, .TO. S. 27-.
Where a debtor assigiu'd to a creditor pro-
perty, which was seized Iiy the sheriH' on several
executions received on the same day, and these
writs were subsequently satistied by the sale of
other property of the debtor, but before they
were satistied, .and a fortnight after the assign-
ment, an attachment against the debtor's pro-
perty came also into the hands of the sheritF ; —
Held, that the proiierty assigned was secured to
the assignee against the attachment, although it
liiul been liable to the preceding executions.
Jfuokrr V. JarrU, G O. S. 439.
Where a party serves process on the debtor
personally before attachments issue, and obtains
judgment before the attaching creditor, his exe-
cution has priority. Jiaiik nf lintisli Xorth
Anwr'ica v. Jarna, 1 Q. B. 182.
Semble, per Robinson, C ,T, , that a writ of
attachment has relation to the time of its being
issued, or perhaps to the teste. Per Macaulay,
0. J. C. P., Burns, J., Esten, V. C, Spragge,
V. C, that it only takes effect from the time
of seizure. Kiinjumillv. W'arrenei; 13 Q. B. 18.
The placing of a writ of attachment in the
sheriff's hands does not of itself bind the goods ;
the writ must be levied on. Potter v. Carroll, 9
C. P. 442.
Where the creditor at whose suit the property
is first attached fails in his action, or is satistied
his debt, and the goods are restored to the
debtor's possession, who disposes of them : -
Semble, that a second attachment will not de-
feat such disposition. Ilowtll v. McFurldiie, 10
Q. B. 4«».
The plaintiff obtained execution against A.,
whose goods were then under seizure upon an
attachment. The sheriff, under C. L 1'. Act,
lS.")ti, s. 53, having sued and obtained payment
of a yum due by one of A's debtor.s :- -Held, that
such money was not liable to the jilaintiff "s exe-
cution, but went to the attaching eri'ditors.
Caiiii V. Thomas, 17 Q. B. 9.
A. sued out a wr
SCI Hiding debtor as
tion, served the writ on him in New York on
the same tlay that an attachment issued against
him here, and obtained judgment and execution
before the lirst attaching creditor :— Held, that
to entitle him to priority, he must also shew
that his writ was served before the attachment
issued, and no evidence being given to shew at
what time of the daj' either event took place,
that the attaching creditor's claim must prevail.
Qurere, whether a service out of the jurisdiction
would be sufficient, even if made before the
it of summons against an ab-
vesidiug out of the juriadic-
I
^
7
ABSCONOrNO DEBTOR.
f :.
attachment issued. DniiUlv, Flf-.dl, \~ (). I?.
All attac'iiiii'iit \v:w issiUMl a^'.iiiiHt ik-'fi'iidaiit on
th« Otii .Inly, ami i»ii tlio n;iiia' day ;i mim-
liiuiia was K.'/vcil uimiii liiiii aliinad, at tln! suit
of (iiiu II. Within six iiniiitlwi tli>< jilaiiitill's
sued out aiiiitlu'i' attai'iiiiicut it <lid not ap-
pear wlic^tliiT tiu^ iilainlills in tlir liivit attai'li-
ineiit li:vd iilitaincd jnd^'nicnt, or wlu'tlirr that
writ was is:«U'd or (J.'s .Miiinuions served lir;;t,
|jut(t. tir^t ol)tained cxeeution ; Held, tiiat so
far as ajujearod, (!. was entitled to the lienelltot
his ti. ta. as ayainst the.ie plaiutill's. Ciird v.
/',7c(//, •_' 1'. I!. •-•IVJ. I'iianil). I'.nni.-i.
IFeld, also, that the niiTo fact that defendant
withdruw his plea, and .allowed <1. to j^et jndg-
iiieiit by default, was no ground for iMipiilin^'
collusiuli in obtaiiung sueh judgment. //'.
Where goods liave heen attaehed, a I'reditor
o))taining a eoiifession of judgment from the
debtor without serviee of proeess, .and exeeutiou
upon it before the attaehing ereditors, does not
obtain priority. /Jin/ v. /•'</;/./■, 17 i). I'>. ">.'tl>.
lIoUl, that on the allidavits liled no ease was
made out for setting aMi<lo the judgment i^o ol)-
taiued for fraud oi eollusion. //'.
To entitle an execution ereditm- tii priority
over an attachment, he must not only obtain
execution before the attaehing ei'cditor, but his
action nuist have lieen conimeneed by proeess
served before the attachment issued. 'i'Jieri'fore,
where the execution issued upon a e<infession
given before tlie debtor absconded, witiiout pro-
cess served ; -Held that the attachment must
prevail. 'I'/ir llniik of I'ji/nr ('niinihi v. <i/<i.-<.i,
21 Q. P.. ;«».
On application by an attaeiiing creditor under
C. S. U. C, c. •_'.">, 's. •2-2, to set 'aside the judg-
ment and execution of the plaiutitf for fraud and
collusion : ,Scnil)le, that the plaintill's claim
need not Ijc unfounded or fraudulent ; a lioiia
(ide debt may lie sued f(jr, and the action bi'ought
in collusion, &e. II7«;a v. Lu;/, i:i('. I'. •is!l.
See also Iliriiii v. H'/kc/, I IC. I'. .")l ; J>ir/.:-uiii
V. MrM„/,„„, //>. r.-JI.
v., a sherilf, between the Ttli of May and the
4th of August, received se\eral 11. fas. against
the goods of deft'Uiiant. (tnthe Kltii of August
he received one Ulion wiiieli this action w.is
founded. I'.etween tile Itli .•md Itith of August,
two attachments were placed in his h.inds, and
after the IGtIi several more. 'The shcrill' treati'd
the plaintiti"s ti. fa. as sub.-icijuent to the attach-
ments, and returned it nulla bona, upon which
this action was brought for a false return : Meld,
that the writ of the Kith of August having
come into the defendant's hamls while the goods
of phiintiir were in eustodia h'gis, it attached
prior to the attachments, and (Uiglit to liav(,'
been paid llrst. I'ot/ir \. Cirrull, <M !. I'. 1 !•.>.
See also, Curnill v. /'(/.'/,,-, !'.»(,>. 1!. ;i IC.
Held, allirming the a1)o\e judgment of the
C. P. that an execution against an abscimding
debtor, issued upon a judgment entered up prior
to his absc(Uiding, was intitled to priority over
attachments placed in the sheiill "s hands liefore
such execution ; notwithstanding the juilgnient
was entereil up mion a cognovit in a cause in
which no process had been served or executed
before the attachments issueil. Itobinson, U. .).,
McLean, J., and Spragge, V. C, diiis. Cdrrnl/
V. Potter, 1 J:. & A. 341 ; 7 h. J. 4:.'.
When it is necessary, in order to settle the
priority of iucund)raiicers, to enouire whetlun- i
(larty sued was an ab.scomling debtor « ithin the
Act, this court will do so ; and th.at, loo, altho\igli
ilcfendant in the action may not have takiii any
steps to set aside the attaclnnent at l:iu. I'mil:
ii/ Moi,/r,ii/ y. /liiLi ,;'.) CUy. '.)'.
Held, on rehe.iriug, allirming the decree, th.it
the bona tides of proccediug.i taken against an
aliseonding debtor to obtain priority, could bi^
(piestioned in this court at the suit of a creditoi'
(u- third p irty. //<. '2'.)S.
V. ."^r.rriNu asidi; ArT.vcirMF.vr.
The court refused to set aside the attachment
upon the ground that thi! del)tor had been |>re-
viously iield to bail for tin; same cause of action,
and the bail had been dischargisl by a n^fereue:;
to arbitration. Moiii r v. McCiiii, 111). S. 77.
Where a plaintilF proceeded after more than
a year from i-ssuing his attachment, the proceed-
ings were set aside and a su[)crHcdeas lu'dered.
is<iiiki<j' r. <'. V. S/xifwii, :\ (). s. 7s.
A ilebtor having returned, and given the bond
rc(piired by •_' Will. IX. e. .">, anil put in special
bail, a supersedeas was onlered. ' '/(//•/■ el "/. v.
MiilliTH, :i 0. S. ir)7.
Motion to set aside attachment and subse.pient
proceedings, under '2 Will. i\'. c. .'"), because
plaintill's were not inhabitants of the Province,
refused for delay in nuiving and insufliciency ot
atli<lavit. - rUnr <l iil. v. Jlra,-/,, 4 O. S. 118.
Houds tool)tainsui)crscdeas under 2 Will. I\'.
c. "), and 5 Will. IV. c. .'{. Amount of penalty.
Ilnithr V. Il'<///<(.v, 4(». S. !:il.
A person seeking to set aside an attachment
against him, on the ground that he never lived
I nor was in this country so as to make him conn-
under the Absconding Debtors' Ac^t, should
i make those facts appear clearly ; and the court
; iliseharged the rule where those facts were not
I distinctly niaile out, and the jiarty had not <le-
i scribed himself in his allidavit as the defendant
in the suit. Sniil/i v. '/'/h A'/'";/i//vf lliirliiiiir dml
l),)i'h- Co., t; l». S. ">.").■).
I'roceedings had in suits .against an ab.scoml-
] ing debtor, contrary to the statutes, may be wet
asidi^ at the instance of other creditiu's. Hnnl:
i;/' Mmitriitl V. Hiirn/iiiiii, 1 Q. I*>. KM.
An attachment issued by the order of a judge
in I'handK'rs may be set .aside by another judge.
Iloirliiiiil V. liiiir,', •_',-, Q. Ii. 4(J7.
VI. I'lMHT.DDrMfiS A(!.\rN'ST DKIvrol! OK An-
SCO.NDINd DkI'.TOI!.
Proceedings under 2 Will. IV., e. 5 by the
creditor of an absconding debtor. Averments
ne(;essary in the declaration. Amount recover-
able, '/'/luiii/isoii V. /''(in; (J (),. H. ,'tS7.
In an action by a sheritl", under the abscond-
ing debtors' act, U)r rent due on a lease to tlie
delitor, the evidence shewed an assignment (it
the reversion by the debtor, and receipt of :ill
and half a year's more rent than was due
thereon, and the jury found that the transui-
tion was bona tide as between the debtor ami
his ai
Ifel
ttould
.lii't t
till' nil
notjiju
iellilall
.Ippl'MI*
..rdere,
I
ABSTRACT OF TITLE.
10
hit as»i"iio('. Upiiii iiiutidii fur ;i lu'w tri:il :
HcM," tli:it iillliiiiiyli (inliiiaiily the cntirt
wciiiM ivi|iiiii' ii Ktriiiij,'!'!- I'lisi' .•iL;!iiii:<t tlio vcr-
.lilt tli:iii «ii:' iii.iilt' cut lii'i'i', yt't, tlic jihiiii-
tiir siiiiii; ill iij,'lit 111' lii.s dlliii', iiiid kiioNNiiiij;
imtliiii'.; I'l' till' liMiisai-tiiiliM liitwi'cii tlic <li.'-
ii iiil.iiit ;iMil till' ili'litor, ami tin' firi'iiiimtaiii.'ts
,i|i|ic:uiii,L! niiiiuwiiat simiiiridus, a new trial waH
(iiili Ti'iliMi |iayiiii'ut iil'cii.stM. Ill jiiinlil.-i V, I'l iirri ,
lie. I'. :wx
Mil. I, lliat till.' Ilr.st count of the (U'claratioii,
uliirli "a:i li.v a i>liLrill' against a iiartncr ot tlu'
ali-riiiiiliii',' ilflitor, fur fiiiniM'tiiig tin.' joint lu'ii-
]nrt\, v.a-i liail ; I. l''or not statin;:,' that tlic
iilaii.till 'iiu'il iinili'i' that Att, a.'i ii'i)iiirLil liy ;icc.
•Jl'i, tlii'ii'^li it il ill stall.' that hi.' hail nmlcr hl'c.
o'l iilitaiiii'il till' oi'ilfi' of a jiiitgo to hriiiL? the
;i.'tiiiii; anil, -. l''oi' not hhuwing that notiti.' of
till' attaihiut'iit hail huuii sciviJil on (h'finilant,
ur that fill' /^iioils hail liciu attaoheil hy thu
li.naiT kIii'iIiV iliirin^' whose ti'iuirc of olHcu the
attai'limeiit hail issueil, or liy the iilaintill", his
sUL'cis.siir, the averment lieing merely that ilefeiiil-
ant havinj,' i)ro|)erty in his jHissfession (whieh
the slii'iill' might have sei/eil, lint diil not seize,
whil.-'t till' property was liahle to seizure), con-
M'rti'il it to his own UUL'. /'(ii/lurs. /Jriiicn, 17
( '. I'. :iS7.
SemliK', that the limitation iimler the statute
of the ilufeiiee to matters available against the
ilulitor at tlie date of the attaehnient, refers to
the pni.-ieeiition of elainis arising before the issue
of the writ : Hut llelil, that the count was not
liail for not stating that the attaeliiiig creditor
had pniveil his debt before judgment, or liled
an allidavit of the sum justly due before the
i.-isue of execution, for that the maxim omnia rite
eyse acta, &c., applied. ///.
Jleld, also, not neeessai'V to allege that the
property attached was insutiicient to satisfy the
execution, or what return the sheritl' had made,
fill' the suit having been brought by order of a
judge, it must be \)re,-:umeil tiiat he was satis-
lied a.-i to this. ///.
Si nihil', that it was unneicssary to allege more
than till' fact of conversion, leaving it to to be
bIk'UII that there was such a destruction of the
joint in'opi'i'ty us would make it bctucen eo-
jp.irtners a conversion. ///.
Held, also, that it mu.st be assumed, if there
I VMS any slicrill' having the execution of the wiit
I in tlii- i:ue;i', lliat it ua.-i the ]ilaintitr. / li.
\'ll. MiM i-,i,i..\Ni;iir.i ('.\sf;s.
The \iayec of two jiroinissory notes for l.''J,')
leach, having idiseonded, is not thereby disabled
Ifriim suing the maker upon them on his return,
Ibccausi' ill his absence an attachment has been
jtaki'ii out against him by A., a creditor, for
Ifl'l. Sliiti' i-ji V. 'I'linici/, 7 'i'. I>. i^.S.
'I'lie iilaiiitiir coiitiacted to build a mill dain
Ifei' defendants. II. and I'. Xi'cre his sureties.
|\\ lull' cai'iyiiigoii the woi-l;, he assigned totlieiii
tile cmitiMet, and he aftcrv.ard.-i abseomh'd, and
ai aU.ieliMieiit was issued agaiii.;t him. 'The
E- i;;iieis c'anied out the contr.u't, and then laicd
lii.i name fur the' money due. After action
briiiiclit this attaehnient was withdrawn, and
iefeudants released by the attaching ereditors
toiii any claim by them to the money that might
be recovered in this action. Within six niontliH
another attachment was placed in the slu'riH".s
hands, of w hich defendants w I're duly iiotilit^d ; —
Held, that the assignees weri' entitled to recover
as Well for the work done l>y the (ilaintitl' before
as since his departure ; and that the defendants
Jiaying would not be liable to the creditors of the
plaintill'. C/dd: v. I'riiin/fiuf , / ul.,UQ. l\. '2'M.
A security taken for a bona tide loan of money
to enable the borrower to lea\t! the eountrv in
order to escape his creditors, is not fiaudillcnt
and void. //</// v. KU^wH; II Q. ]!. >J.
('., one of the obligors in a bond of indemnity
to the sheriir for seizing under .'in attachment,
obtained a linal order for protection from process.
.Judi'inent was obtained in an action against the
shcrill' subscoucntly to the tiling of the petition
and the bond, but was not referred to in (J. 's
! .schedule thereto: Held, thatunder l!t&20Viet.
! e. itH, (.'. was not discharged by such tiiial order.
j Held, also, that the obligees were not entitled to
I set oil' against the sheritl' » claim money whieh the
' shcriir had applied from the sale under the
attachment to pay executions prior to such attach-
ment. Miiiiilji V. Hull ft (I I., 7 < '. 1'. 1").
Semble, the "J.S Vict., e. '2'i, exeniptini' certain
articles from seizure, does not apply where the
debtor has absconded leaving the goods with hia
family. J'njiiiu v. Jhtiuil.-nni, '1\ {}. 15. 41.
If <lefend;int be held to bail in too large a sum,
this can be ameluled. W'ubjii Id v. Ilriicr, 5 I*.
I!. 77. — ('hanib.-(l Wynne.
ABSENT DKFENDAXTS.
F. .AnscoNDiNi: Dr.irroi! — .SVc AescoN'DTS'o
DkutoI!.
II. Si;i!Vi('i': iiK Wnir os—S'if l';,ii:( "I'mkni'. —
I'K.vcrn'i; .\r l.vw.
III. Siiitvici: oi' liii.i- ON, .\.M> (>'nii:i: I'iohi:!-.!)-
ISIJS .MJAl.NSI'.
I. Jii Fticii'lth-iiirr Sii'il.'i -Sit' Moi!'rii.\(;K.
•1. In Olllir ('(fscs — Sri-'. I'l.K.VKINd IS
I'X'L'irv— l'u.\i'ru'i; i.s J';(a ns.
For the practice in proceeding against absent
di'I'eiidaiits, under 14 & lo \'iet. eh. 10, repealed
by the V. L. I'. Act : See /////// v. Fori/, L' C. L
c'hamb. "JO'i ; ('((iiiiijli- v. Tdi/lor, '2 Chy. {JI7 ;
Duriiiiiis V. Kiiiiiiilii, "J (.'hy. 057 ; /."/i/c v. Il'i'/;-
■s/iiiili!/, ;! Chy. IO(i.'
AHSTUAC'T UF TITLE.
1. iJl rnw .\MI llAllII.I'riES ol' ItF.lilSTIi.^R:; —
.S'm' RKcisrKV Laws.
II. Os Sai.k ok Land— .S'cc Sai.k ok Lash.
I'^ll'eet of registrar's abstract a.s evidence of
title. A'.eo' V. j;,ii,l.-s, IOC. I'. •J0'_>.
Uefore an abstract was asked for the purchaser
had sold small portions of the land, and he and his
vendee had cut down some of the wood thereon ;
but the vendor notwithstanding promised after-
wards to give an abstract as demaiuled, anil de-
livered an abstract accordingly : — Held, that
the plaintifl' was entitled to have this abstract
veriHed, (lordoii v. //(inidrn, 18 Chj'. '2.SI.
II
ACCORD ANf) SATrSPACTION.
On rooc'iviiig an iilmtractof titlu iiimn aMiilo of
Innil liy nnlt'i' nf tliu Cniirt tliu imirIiiinci'
ll.'lM MI'VCII llayH within Wllicll Icl lllljcct til till'
I'oinpli'ti'iu'HM III' till' uliHti'iu^t, mill iil'ti'i' liny i|iii'n-
tiiill III its riini|ilitrni'«M i.H ili«|iiiMril iil', iinil till'
alistnirt niailr iiri'lot in tin: NcnHc nl li<'in;{ i'iimi-
pli'ti', Hi'Vcn ihiys til iiliji'it to till' title. Il, linw-
rviT, 111' takes his iilijcitiiiliH tii tlie title in tlu!
lii'st inst.uii'i', the MiiMti r will nut ^n into the
i|lleNtiiill iif the |iei'leetne.sM iil' the itliHtraet, lillt
will I'linline the |illl'ehasel' tn the iilijeeliiins he
has niaile tn the title. N'li iilijeetiniis iither th.'ill
thiise H|ieeilieally tilLrn \\\\\ \h- eiiteltaineil liy
tile .Masti'l'. 'I'lie iniliiiseil I'eeeipt.s Inr eiilisiilel'ii-
tiiiii nmney hIiuuIiI a|ijie;U' in :i |iei'l'eet alistniet,
at all events as tn ileeils e\eeiiteil lielnie the late
lej^'istry iii't. .l/''.t/i(///(s V. /,(V///, ;i('h\. ('Iianili.
i;. •..'t;:t". I'.nvii, .iz-z'/m'.
ACCHIT.WCK.
I. OK Hii.i.s iiK i'lxriiANiii: Sii Hii.i.s uk
KMIIANiiK AMI J'llOMISSiinV NilTKS.
11. 1>K OKI II i; Sri .Mink iPAi, CiiKi'iiiiAiiiiNs.
III. ( »K ( liiiiiis ,SVr .Sai.i; UK (ilinllS.
1\'. <»K 'rMi.i; -S>'> Sai.k iik I, ami Sam; ok
Lanii ii\ OuiiKit i)K iiii; C'liinr.
.\(.'CIl)EN"r.
1. LlAIUl.lTN UK CaKIIIKUS— .SV( ( 'aIIIUKII.S —
IJaII.WAVS ami liVll.WW CoMI'VSIKS -
Sill p.
TI. FltuM FiliK .S'o |''|l;i:.
III. FiiiiM Ni;i;i.ii;kn(K .Vk XKKi.KiF.NcK,.
IV. Fitiiji Di:kk(TI\ K ItoADs -,s'.'. \\'\\.
Death liy "aeeiilent eau-sed hy intnxioatinn" —
meaning of. See lUihhr v. ('/((,//, "JT ^i. \'>. 4;i8.
— « —
ArcuMriJci':.
Sir CiiiMi.NAi. Law.
A('( OIU) AND S.VnSFACTIOX.
I. Xi.w OK SinsirnrKD A(iiu;i'..Mi;Ni', 11.
II. \',\ lill.l.S UK I'ACIlANUi: AMI l'i;uMIS:-ul(\'
NllTKS, 14.
III. 15v A SniANci-i;, ID.
IV. I'i.kauim;, II).
\. Misi r.i.LANKiiLs C'askm, '2\.
\'l. lU ('m:i,iii'. --.SVc I'avmknt.
\'ll. SAI'ISFArllllN UK UllWKU -Sri DllWKH.
Vill. l'.\ 1'a\ MKNT-.V" I'avmknt.
1. \k\V ul! SrUsTiTLTKU AllIiKEMK.NT.
Senilile, that a idaintitl' may, aftur breach (if a
Bimiile contract, legally agree to take a new
n^reeinent to iltiliver ){imhIh, iVe., in lull i4.'\ti)<rii('-
tinn nf the Inrnier |irninise, allil III the ilanill^es
aeiruin^ Irnm Hir lin.u h. T/iuiinn \, Miillnni,
tl V' !''• •'•-I'
llelil, that the ileeil a.s set iillt ill the jiieailin^H
in this ease sheweil elearly iui intention nn tiie
liart III the li.'ink tn lake it as enllaleial seelll'ity,
ami nut as an assi;^'nnient in Hatisl'aetinn nl the
nntes Hiieil un. litiid' "l' liiUUli Xmi/i ,\ im rii'H
V. Slirnriiiii/, li (.}. It. .'".■VJ.
Del'enilants ailniitti'il the |ilaintiH "s ilenianil,
lint Hi't np as a ileleiiee itn a^^reeiiient alter
aetioll lietween thi'lll ailil thi'il' elcililol'S, the
|ilainlill lieinLfone, liy w lliell tlie ereilitnr.sa^'leeil
to tike eirtain |iiii|iei'ty nl ilel'enil.ints, whiili
was to lie inanaj;eil liy assi;,'neeM aiipointeil liy
t\n' eieilitors ; ami that tiiey were re.'uly ami
willing to make sinh aNsigninent, Imt that Hiilli-
ciunt time hail not yet lieeli allowiil to eomjilete
the Hunie. The |ilaintiir nplieil, that he anil
the other ereilitors iliil not agiee to take the
asHigmnent, ite, , in satistaetinn nl' their respee-
tive ilelits, iinr that the plaintill' was not to
proceed against ilet'emlants lor liisilelits : llelil,
that a enniposition where lamis are not cnn-
ecrnerneil, or an as.signment of gomls, whieli
woiilil not fall within the Statute of Framls, is
valid liy paiol : that it was no ohjection that the
satisfaction had not liceii given at the time of
the plea : that an agreement as an accord was
good liy parol, though acceptance was iint.sliewn,
there lieing nodefault on the part of tliedelitors ;
and that the plea after verdict must lie held
good, because it was in the nature of the circum-
stances that the mutual [iromises were (provi-
sionally) a .satisfaction for tiie debt. /IrniiAill
V. Milral/it III., -JC. 1'. 4:{1.
Action un the common counts. I'iea, that
after the promises, and before this suit, it was
agreed that defendant should yell to plain-
tills, and plaintitt's then and there bought of
defendants, twenty shares of certain stock, which
defendant should hold for plaintitl's' use, and
transfer to them when rciiuired ; and that the
plaintitl's sliouhl then and there accept defend-
ant's said agreement, and the said shares so to
be transferred, in full satisfaction of the said
promises : that in ]>ursuance of, and ever since
such agrceinciit, defendant had held, and still
hukl.s, such share's fur the plaintill's, and hath
been and is ready tu transfer them when rc-
iiuired : Held, plea bad, because it was not
shewn w hither the alleged agreement was before
or after the breach of the promise sued on. Ji'o:i
et III. V. J J iron, lU y. B. 407.
ras(>, fur injury to plaintiH"s reversionary
interest in land leased by him to defendant.
I'lea, that it was agreed between them that if
defendant would agree to pay him i'ti'i 15s.
fur the use of certain premises of his for one
year, the plaintill' would accept such agreement
m full satisfaction of the grievances eomplaineil
of ; that in pursuance of such agreement defen-
dant agreed to pay, and plaintitt' then accepted
the said agreement in such satisfaction as afore-
said : — Held, a good plea of accord and satisfac-
tion. Ckir/c V. A';//;/, i;{ ii. B. 18,5.
Covenant on a mortgage. Plea, that defen
daiit conveyed to the plaintiti' his equity of
redemption in the land mortgaged, which the
plaintill' acccjite I in satisfaction of the claim.
It appeared that when the plaintitt' commenced
12
13
AC'COUl) AND SATISKACTION,
14
II tii<'
mils,
,1 III''
/i< i-'ii'ii
\\\\\w\,
iiltit
•s, tlif
■iHi'''""'
Nvlliill
UmI I'.V
ly mill
X Hiilli-
iiiii'li't>'
\ii' unil
:iki' tlie
IKit to
llfUl.
lint coll-
1, whicli
•;lU(ln, i«
tliat tlu;
u tiiui' of
i.tshi'wn,
(li'l>ti>i-»;
(t liu held
ic circiiiu-
re (provi-
Hiiiii-ikiii
IVka, that
it was
plain -
(ought of
k, wliicli
use, anil
. that the
pt ilcfeiul-
vrus so to
thu sail I
vcr si""^"
;ui(l still
iiiil hath
whuu ve-
it was not
was IjL't'ove
(I (111. /iVff
;viTdiouaiy
(Icl'emlaut.
,i;iu that it
I Jl(>-2 li'w.
Ilia for one
iiurueiueiit
jomvlaiiiL'il
loiit ilefeii-
111 accepted
In as afore-
lud satisfac-
Ithat aeteii
. equity lit
which the
the claim.
I commenced
to
tllJH llitioll, (Icfrinlilllt ntli It'll to I iilivry till' IiiimI
ill full Hiiti»fi»itiiiii of till' "li'lit, liiit the |iliiiiitiir
ili'i'liiu'il. l'liiiiititr'n;ittoriiry ,ift( rwjinl.s.lirmini;
timt oiH' ''• would liiiy till' liiiiil mill p,iy tin'
uiortj<iWt', tolil till' pliiiiitill', who H.iiil it wmi nil
till' 11,11111' to liiiii from wliiiiii till' iiioiicy I'.itiii',
,'iiiil at <i.''< wi^li till' ilci'il w;n iimilc l>y ili •
fciiil.'iiit to tilt' |ilaiiitill' iiiHti'iul of to (I., mill
left «itli thf iittoriiry. Afti'rw.iiil.i, howt vcr,
it ,'i|i|ii''ii'i'il that < I. Iiiiil iifi'rrril to nnotlur lot
owiii'il hy ilffi'iiilaiit, mill III' ri'fiisi'il, tlurffnrf,
toi'iirrvo'it tilt' aKrt't'Uii'iit ; llfM, tli.ittln' yhn
wii:i not |iiiivtil. Il'iiif v. Ilnil'ii, |H(,». 15. mi.
'I'll nil ai'Hiiii on the I'oninion rotints liy iilniii-
till's nr* I'M't'iitorsili'lenilmit pit'.iileil, on njuitnlili'
priiiiiiil'i, tliat ilcfi mlmil mul trstatnr were p.ut-
\wv* in flic |iui'i'liaHi' of I'crtiin Limls in the
I'uiteil States of Anurii'a, mid also in mnu'
(liari'H ill a certain railway conipany for wliicli
tlicv were to pay in eoiial prii)iiirtions juul were
t.)Hliaieei|ually in tilt' prolits and Iomscs, nnd that
lieiii" so iiitcicsted, it was after the death of the
testator aKi'ccil lictweeii plaiiitilV and defendant
that if defemlant would assiiine and pay the
e ills on the railway sliaren, take the stock as his
own, and relieve the plnintilV from all liahility
tlieieoii, MO claim should ho made mion him
lor tlie lialaiieo due on the lands, hut that
plaiiitills should liay the sani" ami the payments
Ml made should heeonio (is list charge upon
tile lands. The plea then :. rred |)crfonnance
III the agrcoment on the deicndant's part :
Held, on (Icmiirrer, n good pica hotli as a legal
and ci|uital)le defence, and that if it was neces-
s'lrv to the validity of the agreement that there
sliiiild have heen a writing it mnst he assumed
oil demurrer that there was one. L'Inrh d al. v,
l\,n-nll, 17 <'. l". .");i8.
Til an action liy husliand and wife on a note
for .SdOtt made to the wife heforo marriage, do-
fi iidant pleaded that the wife was formerly the
willow of one ('., to whom defendant had heen
inilehlcd in .'<400, that she sulisei|iicntly took out
letters of administration to his personal estate,
and that afterwards the defendant hoeame iii-
ililitcd to her ill S>-00; that the note declared on
was for these two sums ; and that after its ma-
turity, with the knowledge and assent of her
liii.shand and co-jilaintitl', she agreed with defeii-
iliint to accejit from him a conveyance in fee of
certain lands in full satisfaction and discharge of
licr I'laim on said note ; that ilefendant accord-
ingly ixecutcd a projier tleed of said lands to
lici', duly registered, anil tendered the same to
lier liefnre action, and that she never expressed
any dissent from said agreement until after said
tender; Held, on demurrer, a had plea; 1.
as not averring that there was no marriage
settleincnt, so as to hring the case under the
liriivisioiis of ('. S. V. i\ e. 7.'1. -. Because
the ac'iird and satisfaction attempted to he set
11)1 lieiiig, as to two thirds of the amount, in res-
sju'ct of a sum due to the wife in her rejirc-
^ fentative character, was not pleaded ;i8 having
heen made with her hushand. .'t. neeause
I what was pleaded was the agreement to aeee] it
la deed in satisfaction, hut the acceptance in
Uatisfaetion was not only not idcadeil, hut was
Ishewii hy the plea not to have taken place.
|if"/.M(w ("/ III., V. JMiiiiswi, 1!) ('. r. •2{".l
Sei. fa. upon a judgment for ^'iOOO against
Idefeiiilant as administrator of M. on a homl in
Ithat sum, conditioned for the payment of $1200
liy iiiht.iliiitnt-, w ith a sii;;gestiiin that two iiistal-
mi'iits \M're due and iiniiaid. I'lca, mi ei|nitahli'
gioiiiiih, that lii'fore tlie mi. fa. issued it was
agri'cd lietwecn the plaintitr and ilefenilanl,
with several others the heirs at l.tw of M., that
they should convey to the plainlill lln ir interest
in certain laud of which as sinli luirs ll ^y were
seized in fee, that the ciiiisidcialioii tV''<'f"r
shoidil he .■¥'J(KM>, and their intcicst slmu; M.e
treated as so inucli in cash, which shoiild^v
.'iiililicd as a |iaynicnt hy Hie estate of M. to tic
iilaiiitill ; that the defendant and otliein accorii |
iiigly eoiiveycd (heir inlcii':.t in the land to tin;
plainlill', and the plaintill' aceeplcd such coii-
\eyaiicc as representing .^'JCMM*, and elediteil the
estate of M. with that sum ; that the only deht
then due hy the estate to the plaintill' was the
said Judgment, mi \sliieli the total aiiimint then
lint! and .accruing due was less than ?*V.'(KM>, wlierc-
liy said judgment was satistied ; and such ereilit
was the only consiih ration fur the cmiveyance :
Held, on ileiiiiiirer, that the plea shewed a
good defence. W'/ii/d'anl v. Mi- 1. mil, "JS (^>. !>.
The plaintill sold to defcndaiii, hy dcid the
right to nianiifaetiin^ and sell their patent right,
for "Kinney's Metallic Waggon Seat," for the
time in the patent mentioned. Defendant cove-
nanted to tnaniifaetiire at least twenty per day,
and as many more as theilemand should rei|nire,
paying each of the plaiiitills one-half of a royaltv
of twenty-tive cents on i^acli seat, and fiirtln i,
to supply .MeK. i^ Co. with at least '-'00 seats per
month at \Kh\. each, pursuant to an agreement
hetween them and the plaiiitills, paying on these
a royalty of "JOc. to the iilaintill's. There were
other covenants hy ilefendant to manufacture in
a workman-liko manner, &e., and to make use of
.all nuians to introduce the seats and make them
known. The dcelar.ation set out the decil and
.issigned hreaclu^s of all the covenants. The
third plea was, that after hreach it was agreed
hetween the |)laintill's and defendant that they
should release each other from the )ierformanco
of their rcsiiective covenants, and all rights of
action in respect thereof, and in consitleration
thereof defendant agreed to manufacture thenco-
fnrtli only so many seats as wmild uiqiply the
demand, ami the idaintitl's acceiiteil such agrcc-
iiieiit in satisfaction of the cause of action
declaretl on : Held had, as ])leadeil to the whole
cause of action, whereas it could only he an
answer to the hreaches of the covenant and not
to the covenant itself, for it sheweil no release,
hut only an agreement for one, and no satisfac-
tion hy deed ; and hecause the satisfaction was
insntlieient, the new agreement heing merely to
manufacture a less numher of the same article ir
the .same way, and on the same terms. MvUiri'nii
it III. y. Tiiniliiill, :t2 Q. R 407.
I Seduction Vlea, in efTeet, that it was agreed
I hetween plaintill' and defendant, tliat if defenil-
i ant wouhl agree to take and support the child,
the jilaintifl' would accept the same in satisfac-
I tioii : that defendant did so agree, and plaintill'
accepted s;ud agreement in full satisfaction : - -
llehl, plea gooil, without shewing jierformanco
I of the agreement. Mclliiijli v (Inar, 18 (". V. 488.
111. I'i\ Ull.l.S OK Kxi'llAMiK .\M> I'iiOJllStiOKY
NoTK.s.
Where an action is for tort, and the di'mages
in the discretion of the jury : - Scnible, that a
15
ACCORD AND SATISFACTION.
16
I
l^-
i«
promissiiry uutt- luiiy lin taken in satisfaction ;
the principle that a leys sum (if money cannot be
taken in satisfaction of a greater not applying.
Lam V. Khiij.<)iiill, (> y. H. oT!*.
The note of one of twr. joint ilelitor.-i is no
fjatisfaction of the debt i- lielil, jilea liad on that
ground, and an attempting to nhew lialiililify to
a third party, an indorsee, when the note as
iiloadeil was evidently not negotiable. Lkidhi'/
V. Afc/><<,:ii, HI 15. ':«.
.\ssiinipsit on a- note for L'T."). I'lea, as to
£.')(), another note taken on aeconnt, endor.';ed
by plaintitl's ami outstanding. Ileplieation held
liad in form, on special demurrer, '/'/iniii/i-niii <l
II r. V. HV/«)((, 1 ( '. P. ■")".
Assumpsit for goods soM and di'livcivd, and
on account stated. I'lea, that before suit de-
fendant made an<l delivered three negotiable
notes to the )ilaintifl's, '• who then acceiited and
received the same in full satisfaction and dis-
charge of the sum of money and cau.ses of ac-
tion in the saiil tlcclaration mentioned." I!ep-
lieation, that the notes were dishonoured at
maturity, and .still remain in plaintiIVs' hands
ni laid. Held, bad, for the plaintifl's having
accepted the notes in full satisfaction and dis-
charge of the oiiginal ean.ses of action, had lost
their remedy upon the latter. I.imiiii r it ill. v.
.U,irt-<, 11 i). 15. Hi.
'Die delivery and acceptance of the negotia-
ble pr>imiss(U\y notes of a third person in satis-
faction, though for a less s\im in amount, is a
"ood satisfaction. Iliiii.'H'iiiiihi v. Miu-iliiitiilil,
4('. P. 1!)0.
Defendant leased to I"., from whnui lie took a
note 111 payincnt of arrears of rent. I'", let the
jilaintill' into possession of the premises, and the
plaintilV made certain payments to ilefendant
on account of rent, for which defendant gave
receipts as Utr premises leased to I'". On plea
(if rim III iirrhrr from F. : -Held, that the
plaintifl' could not insist upon the taking of
the note as a discharge of the rent due from K.
Ml- Li oil V. ihiirii 7 c. r. ;5.j.
A ])lea to an action on an agreement alleged
that defendant entered into a new agreement
with the plaintiff, that tlefendant woidd pay
a certain sum, and .seenre the same by his en-
dorsed note, and that the plaintid' accepted
same njion certain terms, and alleged a ten-
der of such noti.' by defendant, and a refusal
by plaintilV : Held, bad, on the ground that
the delivery of the note was an essential jiart
of the consideration; that the plaintitl' was not
bfmnd by the agreement nntil he had acee])ted
tlie note ; and thenifore iiu had rctracteil before
he became bound. Slm-iir/ w llitii:si)ii,7V. V. 1(J8.
I'laintifT holding defendant's note (not nego-
gotiablc) payable on demaiul, for i'.")00, in tran-
sactions witli one Jteed (a partner of defendant),
gave it to liccd, taking in return his note f<u'
CIOOO, for this and other transactions. In dis-
solving partnershi]), it was agreed that this t! 1000,
or note of Reed's, should be p;iid by defendant.
l!ecd being subse((ucntly calleil upon for jt.iy-
incnt, obtained defendant's eluMiuc for C'tOi),
and returned defendant's original note f(u- LTiOO
to plaintilV in payment of the note foi' £1000.
Upmi an action brought for the amount of the
note of 1'500, the defendant ])lcaile;l satisfac-
tion thereof by taking Heed's note for .CIOOO : —
Held, that the facts did not amount to a pay-
ment, and that defendant wa.'i liable. Bootli
V. RhNii/, SC. I'. 41)4.
I'lea, satisfaction and di.;eliarge, "by deliver-
ing to the |il,iintitV, according to agreement, a
certain ])romi.ssory note, " Scr. :- Held, bail, for
not averring that the plaintilV accepted the note
in satisfaction. Jiron-ii v. Join.^, 17 Q. H. i)0.
To an action against two p.irtners for wharf-
age and warelionse-room of good;;, defendant;">
]ileadcd the delivery and acceptance of the
jiromissory note of one of them in satisfaction.
.Vt the trial the plaintilVs' book-keeper said
that he iircseiiteil the account, and took the ■
note made by one defendant in settlement,
writing at the foot of the aecoinit, "received
])aynu'ut by note." 'i'he learned judge thei'c-
u|iou directed a vcnlict for dci'eiidants : Held,
that the ]ilca was good, but that it should have
been left to tlie jury to lind whetlii'r the note
was accejitcd by the plaintill's in .'■■atisfaction.
/''//•/ J>itiiliiiiliiii lliirliiinr (,'ii. V. Si/iioir i/ nl.,
IS (,». I!. oAil
Action on a. policy of insnranee, alleging a
total loss by lire, and that defendants had by
resolution admitte<l the claim at l.'r)0O, ]iro-
mised to ji.iy it. I'lea, that after the accruing
of the cause of action declared upon, it was
agreed between defendants and the plaintilV,
that the plaintilV shonld draw npon one ('., re-
<juiring him to pay to tlie pliiintilV's order i'r)00
at the Bank of Upper Canada, at Niagara, and
that the plaintilV would accept and receive ('.";;
acceptance of said bill in full satisfaction and
discharge of the said cause of action : that the
plaintilV accordingly drew and V. accepted such
bill ; and the plaintifl' then received the same
from defendants in full satisfaction of said cause
of action, and afterwards endorsed the same to
the said bank, who then held the same. The
plaintifl re]ilieil tl-.at neither def.iulants nor ('.
paid the bill, and that the bank before this suit
dclivcrccl tlie same to the plaintilV, who still
held it : - HcM, on demurrer, ])l<:a good, for il;
alleged a sim[ile contract given in satisfaction,
not of an undertaking under seal bcf(U'e breach,
but of the "cause of action," or damages ai-
erueil after, which did not arise from the decil
only, bnt from the fire and eom])liance with tln
conditions of the imlicy : Held, also, replii'a-
tion ide.arly bail. Ilrmrii v. 7'/ir Kr'n mn/ (/«■
liirin I iisitriiiifi' Co.^ '1\ i). \>. 4'J.").
I'irst <'ount, for goods sold and deliwrcd, &r.,
second count, on a promissory note made by I!.
i*t S. ])ayable to ilefendant or order, and by di •
fendant endorsed and delivered to plaintill'.
I'lea, tiiat before action defendant "dclivcrci
the note in second count mentioned to lli'
plaintitl's iu full satisf.-ietion and discharge of lli..
causes of action in the .said lirst count nun-
tioned, and the jdaintifVs then acceiited ami
received the said note in full satisfaction ami
discharge of the said money, and the causes nl
action in respect thereof in the lirst count nun-
tioned. " Demnrrer, because the note in i|Mi' •
tion was payable to the order of dcfcnd.ud, airl
the jilea does i it avi'r that he endorsed it t"
plaintilVs ; Held, plea good, as the delivery anl
acce)itanee by plaintilVs of the note in ((Ucstinn,
though not endorsed, was, under the authority
of Hanseombe r. M;vcdonald, 4 ('. 1'. I'.IO, a g 1
answer to the action. Jic-'jiir.i it a/. \. Bint'j,
13 C. 1'. 3:27.
i;
ACCORD AND SATISFACTION.
18
Dttlaiiition by I'.'f? adniinistratiir on a iiotu
m:iile liy <lcfemlaiit, payaVilo top. Dufcndaiit
iilcadcil, l>y way oi' acuord and Hatisfaction, a
certain proiposition made to tlic ])IaintitV and l>.
as curators of I', "s estate in Montreal, wliicli was,
in effect, that one It. wonld endorse defendant's
notca for 17s. <>d. in tlie f, payalilc at certain
dates, on 1,'cttin;,' a full discliar^'e ; .'oid the
defendant averred that the plainiitl' and 1). as
such creditors " agreed to and a(i'e|)ted the
terms of the said iiroposition," and defcndaid
made and 1!. endorsed his notes aceordinf,dy, and
delivered the same to the aj,'ent of the said
curators in full satisfaction and discharj^e, and
as a coni|ioHitioii of the causes of action sued
fur: llelil, jilea had, f(U' not averring either
tiiat tiic notes or the agreement were accepted
in satisfaction or discharge. Miirfdr/niii v. /'i/tiii,
•2i (,». r.. 474.
declaration, that on an accounting between
tlicni defendant's indelitcdness to ^ilaintill' was
tlxcd at a certain sum, to b(^ paid oil' as stipula-
ted, one of which payments defendant under-
tonk to make to A. & Co., to whom plaintiff >\ as
liable, it being also agreed that plaintiff' should
towards that liability provide an additional
sum by a day named, to be re]iaid by defen-
dant to him ; anil further, that any error in
Haid accounting should be corrected, and plain-
till' should give up to ilefendant all notes and
securities belonging to defendant, which jilain-
tiff before and at the time of the acecmnting
held, cx-cept, &c. Breach, that although a
reasonable time had elapsed, &c., defendant
had not paid A. & Co. I'lca -after alleging
error in the said accounting, (specifying it) and
that the sum agreed to be paid to A. & Co. was
comiiosed of variou.s notes made by defendant
tn plaintiff' that after said accounting, an 1
before action, plaintiff' endorsed said notes to
A. & Co., in settlement ot their claim, of which
i A. k Co. had given defendant notice: — Held,
I plea b:id, as not .shewing that the note.s, which
[had been endorsed away, had been given fori
I the cause of action declared on. Juikh v. CVon
[«ro», ICC. r. 271.
Declaration by administratrix of A. 'on a note
I for .SltO, made l)y defendant, i)ayablc to A. or!
ibearer. I'lca, that at the nuiking of the note, '
[defendant owed A. S\i\0, and said note was by I
jmihtake made for .S140 : that to correct the I
[error, defendant innnediately made a second |
Inote for .^U'lO at A.'s rei|\iest, who ' jceiveil it in j
Ihdl satisfactioi\ of the note sued on, which was
linadvertently left with A., and after bis d(^Tth '
Icinue into the ]ilaintiff "s hands ; that the plain- '
also got the note for S\'>0, which she trans- i
pcrrcil to one F., who sued defendant on it, in I
■ Uivisiiin Court, which is st'U ]icnding : j
lii, on demurrer, a good plea, notwithstand- i
;it the Sj.'iO note was not averred to be nigoti-
»blc. .!/-•//. »/■// V. Cr;/s,/(ilr, i.'. (}. 1\. 4(i0.
To an action for goods sold and delivered,
cfiuilant i>leadcd, in effect, th.at upon an ao-
luutiug !*()() and no more was found duo on
Iich accounts ; and it was then agreeil that de-
endar.t should, and he did deliver to plaintiff,
(rlio then accepted ami rei-eived from defendant
certain )u)te for ■'*l)0, in full satisfaction and
sell irgc i,f the severid causes of action, anil of
tlic iilaintill's costs of suit; -Held, a good
■a ill accord ami satisfaction. Fixaiian v.
fcC'rIlii/, I'JC. r. 'J'J'J.
.Vction for good,-, sold. It appeared that
defendant, on a|p|(lication for ))ayment, sent to
tile plaintill his own note, with two endorsers ;
the plaintiff wrote acknowledging that it was
received, and " ])laced to your credit, with
thanks ; the indorscrs arc not known t'l us,
but on your staling that each one i.! good for
the amount, we .■ueeiit the note in .settlement
of your account to date." .\t tile maturity
of the note, ilefendant wrote exi)res.sing regret
at his inability to meet it, and rc(|uestin"
plaintiff to draw upon him, and that ho eouul
hold the note until |iaynu'nt of the draft : he
subseipiently telegra]ilicd him that he would
remit in a few days : Held, a ipiestion, on the
evidence, for a judge or jury, whether plaintiff
had aecejited the note in satisfaction or dis-
charge, or not, and it having been found tliat he
had not, the court refused to interfere, (•'rem-
iro'H/ V. /'(//r,//, '_'•_' C. 1". :{")•_'.
Declaration .ag.ainst It. & II. for gmids sold.
I'lca liy defendant II., on eiiuit.ible grounds, in
substance, that ho and It. ]iurclia8ed the goods
while in ])artnership : that afterwards he retired,
\y. taking his ]ilaee, and It. & W. assuuiing the
debts of the old linn, including this claim ; and
that the plaintiff', being aware of this arrange-
ment, took the note of the new lirm, 11. & \\'.,
for his debt : Held, a good plea. IViiNs v.
iMAiisoii '/ III., ;$•_• t). 15. :m.
The third plea alleged that the ]ilaintiir had
noticri of the arrangement, as in the former plea ;
and that, in consideration that W. would assume
the liability of H. for this debt, the plaintiff
accepted It. & W. in place of defendants, and
took their note, and relinfiuishcd his elaira
against H. : - Held, good. //».
The fourth plea averred satisfaction of the
plaintiff's claim by the delivery and acceptance
of the note of It. &'\V. :— Held, clearly good. Jh.
Declaration on a special contract under seal,
by which plaintiff' was to ilo all the work on an
extension of defendants' railway, alleging non-
payment for work done, &■'. I'lea, as toS15,0(K),
parcel, ite., that before action, at plaintiff's
reijuest, defemhints delivered to plaintiff their
acceptance of his bill of exchange for said sum,
« hich l)dl was current at the conimencement of
this suit, and was afterwards paid : — Held, on
demurrer, plea good, following Henry r. Earl,
SM.Ot \V. i2i;S, and Homer c. Denham, 12 Q.
I'.. Si;(, note. S/Hiiih/y. Thr Mhllnml li. \V. Cu.,
W?, (). H. ()01.
.\ mortgage was made for i'llOd, payable by
instalments. The third instalment was paid.
For the lirst and second instalment the mort-
gagor gave two promissory notes, bearing even
date with the mortgage, and took the following
recciiit from tin; nuirtgagee : " Received from It.
I!. W. his notes for t'2tH) at four months, and
C20() at eight months from the first of .tunc last,
in full for the same amounts dne on a mortgage
made by him to me, maturing at same date."
And the following endorsement was iiiftdc oi\
the mortgage : " lieceived from 1\. B. W. two
notes of hand, endorsed by L., for L"200 each, to
com|ilct(! tlie two lirat payments on the within
mortgage." The notes were not paid at matu-
rity, and in a suit by the assignee of the mort-
gagee to foseclosc in default of jiayment of the
lirst aiul socimd instalments: — Held, that the
light ti' TLJ^'ver upoi! the mortgage was only
%
19
ACCORD AND SATISFACTION.
20
i';i
suspended, and not discharged, by the taking of
the notes, (lihh v. Warren, 7 Chy. 4%.
in. By a SritAN(iKii.
To ail action against r.ttorneys for negligence
in not registering a mortgage from I), for ,t'7"iO
to plaintifl's within a reasonable time, and so
permitting a sulweijuent mortgage to be regis-
tered before it, tlie defendant pleaded that after
breach the plaintiff' accepted another mortgage
from D. on other land of I), for t'T.W in fnll
satisfaction and discharge of defendants' jironiisc
and all damages accrued to the plaintiff from
the breach thereof : Held, a good plea, it being
no objection that the accord was by a third
person, a stranger to the action. I.i/jirli v.
Wilson, 22 Q. B. 22().
IV. ri.r.AiiiS(i.
Accord witli .satisfaction. Held to l)e a good
plea in covenant. Baijnnl <i nl. v. I'ur/r'K/i/r,
Tay. 558.
Accord and satisfaction cannot be pleaded to
a deed liefore l)reacli. UiJiinan v. Fhnii<ion, 22
Q. B. 417.
In tres|)ass (|. cl. fr. defendant plea<led a refer-
ence after action, and payment and acceptance
of 5s. in lairsuance of the award, in full satisfac-
tion of the damages and costs ■.- Hehl, a good
plea of accord and satisfaction, all alwut the
reference being surplusage. //(/// v. Wnriur, 2
Q. B. 3!)2.
Declaration on common counts, claiming under
one promi.se £500, and laying the damages at
£200. Plea, ])ayment of £250 in full satisfac-
tion of the said promise, and also of all damages
by reason r.f the non-performance thereof : —
Held, bad. Thom/i,sunv. ArniKtrouri, 3Q. B. 15.3.
Declaration on common counts, laying the
damages at £200. Plea, accord and satisfaction
by payment of .£3 : — Held bad. O'lirinie v.
Goiriii, 5 Q. B. 582.
Plea of payment and accejjtance of a le.sa in
satisfaction of a larger sum held bad : — Qua're,
whether a plea that the demand was unliqui-
date<l and disputed, and that it was agreed that
plaintiflf should receive a less sum in satisfac-
tion of his alleged cause of action, could be sup-
ported. Holmes v. McDonell, 12 Q. i$. 469.
The plaintiff declares in debt for £1000 upon
three counts, £500 work done, £100 money paid,
and £400 account stated. I'le.a, that the plain-
tiff' agreed imder seal to ))uild a house for
defendants according to specifications : that any
extra work should be done under, and valued
by their architect : that certain extra work was
done an<l valued liy him, as jjrovided, at £355 ;
tliat " such extra work is the lause of action in
the declaration alleged, .and for whicli th's action
was brought ;" and tli.it before action they paid
to the plaintiff the said sum of .t'.3.")5 "in full
satisfaction and discharge of the said extra work,
.and of all dam.ages .ind demands in respect
thereof, being the said causes of action in the
decliiration mentioned :" — Held, jilea b.ad, as
amounting to a less sum being pleaded in satis-
faction of a greater. JCdchci/ v, Tlir Bank of
Montreal, 4 Q. B. 222.
A loan of money cannot be pleaded in satisfac-
tion and ilischarge of a i)ond and cimdition.
Prlnille v. McCan, 4 Q. B. 228.
In .an action on the connnon count.s, defendant,
A., pleads tiiat it was .agreed lietween tlie pl.ain-
tif}', B. , and the defendant, A., and a tliird party,
C, that ('. should sell /o I!, ail tlie claim, title
.and riglit of piecmption whicii ( '. had to cert.ain
land, and that ( '. should execute a clced at B.'s
re(|uest to D. in satisfaction of H.'a claim, and
then avers that ( '. did by tlie |in)curcmcnt of
.'\., at B.'s rciiucst, execute a clced to D. of all the
title ( '. had to the laiul : Held, |)lcn, bad, in not
averring that A. bad a certain right and in-
terest in the land, ami of a certain value, an<l
th.at the conveyance to D. was accepted in satis-
faction, /■'riilirk' V. LiiiJ'trlii, 3 i). B. I.")!t.
Covenant -Plea, that on, &c., defemlant m.aile
to the infant son of the pl.aintiff a good and
sullicient deed in fee of certain land, which the
plaintiff accepted in full satisfaction, &c. :
Semble, th.at it shouhl have been averred th.at
defendant h.ad some interest in the land con-
veyed in s.atisfaction. I'liilun v. Fni.iir, II
Q. B. 94.
After breach of tlie condition of a lease, the
acceptance of some collateral thing in satisfac-
tion cannot be pleailcd in bar of the .action on
the le.a.se. Mrlnliin v. T/ic t'i/i/ nf' Khuis/dii, 4
Q. B. 471.
Covenant for non-p.ayment of L'.300 by iiust.al-
ments. Pleas, as to £50, parcel, &c., jiayment
and acceptance of £.50 in full satisfaction thereof ;
Held, good. Friilti-k v. lluffiniui, 5 Q. B. 562.
Plea held bad, on special dcnmrrcr, for in-
consistency of d.atcH, in averring s.atisfaction in
1851, of a demand .alleged to be due in 1S.')2,
.and this though the dates were .allegcil under a
scilicet, anil tlie s.atisfaction averred to have been
after brcaeli. I'hi'/ini v. Fnifif r, 1 1 (J. B. 94.
The pleas set up an account stated between
pLaintiti .and defendant, .and an acceptance ly
plaintiff of defendant's agreement to jiay the .sum
found due : Held, that the iilaintill', iii liis
replications, might traverse lioth the accounting
.and the .acceptance by plaintiff in satisfaction,
j Lii/li/ V. Wuoil'<t(}rk mill Liiki' Er'n' Rd'ihrmi ,i-
Il'iirhour Co.,\^(i. B. 201. Sec Hiuh^i-nmh \.
Miialimiihl, 4C. P. 190.
Action on defeiulants' covenant to make ,i
sufficient crossing on plaintiff's land. Defcn-
d.ant pleaded a former .action on the same cove-
nant, .alleging that after issue joined therein
it w.as agrcMl that defendants should p.ay ainl
the plaintiff accept £125, in full satisfaction of
the cause of .action, and that the £125 was
thereupon paid and .accepted, &c. ; to wliidi
the plaintiff replied, traversing thi' p.aynioiit
and acceiitance m s.atisfaction, &c. The plain-
tiff wished to shew that besides paying the CIlVi,
defend.ants were to make the ditch to the lake ;
Held, that under the rejilicNation the only (|ii(?-
tion in issue was the p.ayment of the fl25, nnt
the .agreenii'ut to acce])t it in satisf.action. I'll't
v. a not 'ViiiUrn li. W. dt., 17 <,>. B. .392.
Qua're, whether a surreiiihr. besides ncoev
sarily discharging all undue rents, may not alsi'
be pleaded ctiuitably by way of .acconl and siit-
isfjiction of rents over due. lintdjiilil v. //wyi-
kins, 16 C. P. 298.
! •'
21
ACCOUNT.
22
iatist'action.
same ciivo-
V. Mi.scELi.ANEor.s Cases.
Where .a testator had bound hiiusulf by bond
t(i m\ to his luothei' Cl'2 10s. aiimuiUy, and:
(livi.^ed iiait of his hinds to his brothers on eon- ,
thtion that they shoidd jiay to liis inotlier t'12 I
lOs. per aununi, and jiay all Ins just debts, and
made them his exeeutors : - Held, that at law the
If'aey eould not be eonsideved as a satisfaetion
lit the annuity in tiic bond, and that the mother
was entitled to both. Coir v. Co//, 5 O. S. 744.
Defendant jiurehased jiersonal iiropei'ty from
the iilaintill, and gave him liaek a mortgage on !
it to secure the inirehase nioiu'v, and agreed that I
in default he would give >ip the property, and I
Iilaintill' should sell it to pay himself, anil give i
tiie overiihis, if any, to defendant, and at the
same time defendant gave the plaintill' his notes
fur tiie purchase money, whieli were not to be
acted «u if the ju-operty were given up. On
default the property was given up and sold
by plaintill' for less than the mortgage money,
and an action was then brought on one of the
notes to recover the dillerence : — Held, that it
would not lie, the notes Laving been satisfied
bv the surrender of the property, according to
the aLireement. Sinilh v. JitiiMii, 4 0. S. 134.
(ioods agreed to be accepted in satisfaction,
must be actually delivered ; readiness to deliver
will not do. Thomas v. Ma/lori/, (J (^. B. 021.
S. conveys lands to 11. with full covenants.
Iv. conveys by a similar deed to plaintiff. S.
dies leaving a wife, who demands her dower.
R. jiays plaintitl' a certain sum in accord and
satisfaction :— Held, that payment in accord and
satisfaction by 1!., and acceptance, discharged
plaintill 's claim against defendant, executor of
S. Cnlhlnrt V. .S7(v*/, !.»C. P. 11"..
A. iiaviug taken a likeness for B. agrees to
lake in payment S'-'O in cash, and a cognovit for
870, payable at a future date. After receipt of
the !i'26 and tender of the cognovit, defendant
refused to ileliver the picture. The plaintiff
hidught replevin : -Held, that the agreement
for payment was a waiver of the right of lien,
hut did luit amcuint to an accord ami satisfaction.
Ihnipsiil V. f'o/'.vi,/), II t'. V. 4()'-'.
It is tiie duty of a i>arty setting up that a
settlement of a claim for injuiies has heeu ob-
tained by misrepresentation, to establish not
only that the settlenu-nt has been so obtained,
Ijiit, also, that the anumnt paid is inadecpiate ;
and where there was an entire failure of evi-
dence on this latter point, a new trial was grant-
ed, cm paymeutof costs. Hmrr v. (Irnnil 'J'niiil:
i;,i;hn,,/<'u.. inc. \: rm.
heclaratiou in seduction, by the fathi'r. I'lea,
in ell'ei't, that after the seduction it was agreeil
hetwceii Iilaintill' .md defendant tluit if defen-
dant woidd agree to support the child at his own
costs, Ac, plaintill' wnnld accept the same in full
safisl'actiiiu and discharge ; and that defendant
did agree so to ilo, and plaintill .accepted said
aereement in full satisfac^tion, ite. : -Held, on
deimniei'. ]ilea good, as setting out an agreement
(ill defendant's part, for which a suHieient eon-
f ideralion ajipeai'iMl in his undertaking a liability
which he was not bouiul ti assume, and that
defendant was not obliged to j.liew that he had
actually performed his agreement, as this was
umiecessaiy to supjwirt the accord set up by the
liha. Mr'Hiiul, V. di-rdr, 18 C. R 4S8.
Agreement to purcliase land leased — Construc-
tion of. .Satisfaction of rent by payment of
purchase money. Furijiw liiijuohlit, 18 C. 1'. 110.
M. executed a mortgage in Y.'s favour for
€50, over lot No. 11, he then also holding a
lease renewable in perpetuity of lot A. at a
rental of €4 per annum. The rent being in arrear,
judgment was obtained, and execution issued by
the lessor against M. therefor ; V. then agreed
with M. to pay this execution, M. to assign to
him the lease of lot A. ; and further, it was
.agreed that if the lessors "'will give to the party
of the lirst part (V.) a deed in fee simple, or a
lease perpetually renewable at the present rent,
he, the party of the lirst part, will discharge
and release a mortgage, " &e. . being that above
mentioned. V. afterwards obtained a convey-
ance from the les.sors of lot A., but it did not
appear that such was made for the sum contem-
plated at the time of the agreement between Y.
and M. V. aftei'wards pressi;d for payment of
the mortgage debt, when M. made excuses for
delay, and did not rely on the agreement as a
bar to Y.'s claim. Y. having commenced an
action of ejectment on his mortgage, M 's bill
to stay it and to have the agreement and subse-
quent purchase by Y. construed into a satis-
faction of the mortgage debt, was dismissed
with costs. McKenziev. Yicldiwj, 11 Chy. 400.
A man l)y an informal instrument assigned to
a trustee all bis estate and efl'ects, on condi-
tion of the trustee paying to each of the chil-
dren of tlie assignor !iii400. Subsecjuently the
grantor conveyed to one of his sons a house and
premises valued at $200 : — Held, that the trus-
tee could not set this up as a part satisfaction of
the .§400, mentioned in the first deed, and that
declarations of the father made subsequently to
the assignment in trust, and the conveyance to,
and in the absence of, the son, were inadmissible
to shew that the conveyance was made and
intended to be in part satisfaction of the sum so
secured to the son. MnllioHduil v. Mirriam,
20 Chy. IM.
ACCOUNT.
AiTiiPN- m.' Account, 22.
Bll.l, KOK AN AccoiNT, 2,3.
Misc i.LANEoi's Cases, 2:{.
In Administhation Suits— .SVc Ad.min'-
i.sTRATioN Surr.
liEh'r.KiuNii MArri'.Hs of -.SVr Akbitra-
riON AMI .\WAKI>.
JuKisDicTioN oE Division Couut— .SVc
Division Couhi'.
( 'oMi'UTATioN OK Interest --.s'<( Intere.st.
.Account Si'ateu — .SVcMonev Cou.vt.i.
Takinii Accounts — Sit Mortoacie —
I'ARTNERsmr Practice in Equity.
Al'l'liOI'HIATIoN 111- I'AVMENTri — .SVc PAY-
MENT.
I. Action of Account.
Tlie exception in the Statute of Limitations
extends only to actions of nrroiint, not to actions
1.
II.
HI.
IV.
V.
VI.
Vll.
VIII.
23
ACQUIESCENCE.
24
II'
•J
Mr
it:!
1st
as
>io
of assumpsit on opr'n rirrmni/.-: J,'iis-^i // v. Hnln
.■!Oii, 1 Q. B. 2;\'t.
Will not lie !it Cdiiiiiuiii l:nv Ixtwccii ti'ii:ii
at cdianiou or joint tenants, nnU'ss tlicic
been iin aiipointnu'iit of one liy tlic otluT
bailitl'. Oriijiirij v. (.'iniiinllii, 7 (). 1'. oOO.
Hut under ') Anne, e. ](!, it will lie a,L,'aii
one tenant in eomnion, or joint tenant
bailitl', whenever he has entered and taken nii
than his just share of the jirolit.-, wiiethi'i'
iipijointnient of liis eo-teiiant or not. Hi.
Semble, eoiiareeiiers eaiinot ;uie ea h other
an action of aeeount. ///.
II. r.ii.L von .\s" AnoiNT.
Ordinarily, a bill for an aeeount will not lie
by an agent against a priiieipal. Jtinim v, Smirr,
luC'liy. '-"29.
A bill for an account was held to lie at the
suit of a municipal corporation against tluir
treasurer and his sureties. ( 'nrjidrathni of (hi'
Toiviiship of Ea.ll Ziyn-a v. Domjla-'', 17 C'hy. 4(J2.
The bill in this case alleged that under a
yearly engagement the plaintill' agreed to dis-
charge the tluties of deputy sheritl' for the
defendant, for which he was to be compensated
by a proportion of the fees payaljle on certain
services performed by the shcrilf ; that shortly
before the expiration of the second year the
defendant discharged the plaiiitill', and, as
alleged, refused to account to the plaintili' for
his portion of the fees— whereupon the plaintitt'
tiled his bill, claiming that he was entitled to
share in the fees for three yeavi^i, that the items
upon which he was entitled to a share of the
fees numbered over one thousand, and that he
had no means of shewing the amount due him
except by a discover}- from the defendant, and
praying an account aiul relief cousoi]uent there-
on. A demurrer thereto for want of e(piity was
overruled ; althougli hail the plaiiititJ' seen tit to
institute luoceedings at law to enforce payment
of his demand, this court would imt have with-
drawn it from that jurisilictioii liy granting an
injunction to stay proceediiiLS. lull-: v. I'un-dl,
L'O (-'iiy. AM.
The rendering an account by plaintiffs' attor-
. iiey inthis I'rovinee (the plaintill's residingabroail)
I is not biniling on the ])laintiirs as to tiie mode of
ealciiLition, and even when the plaintill's them-
selves in the lirst instance ineoi'rectly state an
account, tliey may have it legally adjusted at
any time before a linal settlement. MrOmior
<■/ a/. V. Uiiiiliii, I Q. 11. ;i7S.
Where the defendant is Making payments to
the plaintili' on account of a loan, the plaintiff'
may insist, in the absence of any agreement to
the contrary, that his paymi'iits l)e apiilied in
the lirst place, to keeping down the interest. ///.
The proper mode of calculating interest on an
account explained. ///.
A sale of books of account by sheriff, under
an execution, tloes not pass the property in the
debts or accounts therein charged : — Semble,
that books of account and open accounts can-
' not be seized by the sherill', under 20 \'ict., c. 57,
s. '2'2 ; at least they cannot be sold or transferred,
I but if seizable at all, must be held by the sheriff
i in security for the judgment debtor, and collected
as such in his own name. Mi-Xai«jhlou v. V.'iU-
stvf, L. J. 17. — C. L. ( 'hainb. Drajjcr.
It is the -luty of a trustee to use reasonable
! diligence to have the accouuts of the trust ready,
and to render them within a reasonable time
' after they are asked for on behalf of the cestuis
\ (pie trustent ; and where a trustee wholly
neglected this duty, though he offered his books
' for inspection by the parties interested, he was
chargetl with the costs of suit up to the hearing.
linndall \-. Btirroin-.'i, 11 C'hy. 3(14.
When the defendant, by his answer, sets up
a stated account, the plaintiff' does not admit
the defence by bringing >n the cause by way of
] motion for decree, and the proper decree in such
! a case is a reference as to such alleged account.
.V,-('/v. Xiil, Id C'hy. 110.
Accounts were delivered in 1862 and 1805, by
a trustee and agent to his principal, and the con-
j ridential relationship existed for upwards of two
1 years after the latter account had been rendered :
; —Held, under the circumstances, that these ac-
I counts were not binding on the principal as
stated accounts. Snii/li v. ItnlforJ, I'IChy. 'J74.
III. MiscELLANror.^ Ca:;es.
A plaintiff" is not bound by credits given by
him in account in the mere statement of the
defendant, but may reject such credits unless
the defendant can shew that they ought to be
allowed. (.'«/•(/.« v. Fiil/i r, 5 (). S. 57(i.
Where the plaintili' and defendant have had
open accounts for a h'lig iierioil, and have taken
no pains to come to an uiiderstaiiiling in regard |
to the terms of their dealing, or t>> preseive the
means of proving the neeessaiy facts, and the
jury lind more or less upon eniijicture what the !
court may think excessive damages I'orthe plain- !
tiff, the court w ill very ranly indeed, on tliat !
ground, assist the defendant liy granting a new i iii
trial. Conn r v. MrKiiiiioii, 4 (). li. .'{."lO. j
Qua're : When can an account be considered '
an open unsettled aeeount, so as to defeat the
Statute of Limitations liy the later items draw-
ing the others with them. /Idniilloii v. .)f(if-
thcw^, 5Q. R. 148.
11.
ACCOUNT STATi: D.
•S'. I- Money Coint-..
-— ♦ —
ACCRETION.
,Vct W.VTEK .VM) WaTEI! C'oLUSES.
ACKNOWij;iX!MHNT.
Ok MaISIUI'I) \\'nMEN .S'(( HisHAM) ANIi
WlKK.
()i- I)i;i',i'.-i iii{ Oi'.MAMis ru iiAit Statlte
Sir LlMlTAlloN HE .Vr'l'IO.NS AND SLlr:!.
Ok Trri.E lo hAND-.S'ir LiMrr^rioN i.v
Ari'KiN:! AND Sl.MT.S.
— •
ACQUIESCENCE.
Sec Estoppel.
24
attor-
l)i'oail)
loiln <it'
tlu'iii-
;:iti' an
tutl at
(,')•(■;/«'/•
lunta to
ilaiutitf •
iiiuut to
,(litMl ill
wt. 1 1:
at on an
iT, lUnU-r
;y in tlu)
-Seuiljl*')
lutd can-
i;t.. c. 57,
nsfcrred,
ho sherilV
coUcctfd
»v. VM'-
ev.
•easonablc
List ready,
able tiniu
he cestuis
•e wholly
[ his b(joka
id, he was
lu heaving.
•or, acta up
uot aibnit
p by way of
;ivc in such
jcl account.
1805, by
ml the con-
•ds of two
rendered :
at these at-
•incipal :i3
•. '274.
1'5
ACTION AND SUIT.
26
I 'hy.
us EH.
•S1IAM> ■^^''
I Statute
Nil Slii"..
lulATIoN If
ACT ttF rAULIAMKNT.
S'i'r STATI'I'KH.
ACTION AND .SUIT.
1. FollM OK.
I. A,iiiniii)vt, Drill, and <'in\ nant, L!<i.
•J. ('((.•.«• iiiul TroxiMM, 20.
II liv AM> AdUN-vr Whom Main ivinaule,
•r,.
1. Jll(l(Ji:t,
(a) <>/ Cull nil/ Cfiiii-t — Sc CorxTY
"Couur.
(b) Of' Diriii'iii Court — Sic Division
"CoLltT.
(c) IiWoril<i:< — .S'.'i 11 e( •( ) li i) i;it'.s Cou ivv.
•2. JiiMia.< of fill' J'liiirSi-i ,Ji'STIcF.-< OF
THE I'EACK,
r,, ( '!i i-I-- ii'iil BiiUill^-: iij Dii'Uluii Coiirtnanil
Siii-rt'ii'-i S'n' Division Colht.
4. /)'// .{■•ixhltu'c <if Chiuc ill Arllii:) — .SVc
Chose in Action.
,"). Bii ami aiialiisl olhi-i- Per-t'iii-'—Si-'f the
s, v-ERAL Titles.
III. For wrtAT Maintainable.
1. Sii.^penyiiiH uf Aftlou in fVr^^'." of Fi'lon//,
28.
2. In Aroiihtnre of Cirnii/ii, 20.
;!, Ollii-r Cil.'i'.-', 29.
4. Anufhtf Suit ili-jicnilinij — .SV^ Pleadinc
AT Law.
.'). Furmrr Iiirorcri/—Si:c Bills of Ex-
CllANliE AND VKOMISSOKV NoTT.S —
Ej EcTiiENT — Former K ecover v.
G. in olliir raii-.fSri- the skveral Titles.
IV. XuricE ok Action.
1. J\iriii and rvijiiiaiti-s of.
(a) Xami and riyiidi/iri- if Phiintijl'iind
At lor mil, 30,
(b) Slaltnicnl of Caii.ii' if Action, 150.
(c) Slalcincnt of Tiini: and Plan, .'il.
(d) Tiniv of Serria; ;12.
(..) OlhirCasi^, :\-2.
2. Proof of :i:?.
I!. To Miinicliial Cor/ioratioiis; .'1,1.
4, ToJil-ttiri-.-ioftlii' Pi arc, Xl.
it. To Hailijl'^ and tin ir Siiri liri, ."M.
0. To Con-'itidilr.t, 'A').
7. To iilhi r Pri'-ioni', 30.
5. Olio r cif ,(.',■, 37.
\'. 1'a1{Tii;s.
1. I'hiiilifs 3S.
•1. Ihfriidailll, 3!t.
3. Ill Ailinlni.sf ration Sail.-: Sir Ah.MIN-
ISITIATION Sni's.
•1. In Snil-i on Morlijaijr.t— Sii MoKHiAdE.
."). In Kji-rtnirnl -Srr K.IECl'MENr.
(). In Parlilion Snitx ~Srr I'aiitition.
7. In SiTitK for Siicrijir Paformanci —Sn-
!Sl>E(IKIC I'ERKORMANcr.
8. Pliiidinij — Sfr PLEADTNfi at Law —
I'i.EAUINfl IN EgiTTV.
i(. .SV/vc((/ ilifrmlant^ in '/'rit/iax.i — ,SVc
TUESI-ASS.
10. Aiiondnirnt of Partirn -Si-r AmKNI)-
MENT .VI' Law. I'l.KMPlNll IN
Etiiiiv.
VI. Abatement ok Action, ;19.
1. /;( Srdnrlioii — Sri- SeDICTIoN.
'2. In ]i<inilifSrrV\\.\CT\vv. in I'lgciTV.
3. Plrai ill Ahiiti mini Sn- TlkmiINO at
Law.
4. Eillrrimj Jndtlim nl, niiiir /iro titiir —
Sre JlUC.MENT.
VII. Limitation of Action.s anu .Suits— .SV-*-
LlMIT.VnoN OF AcTION.'l anij .Suit.s.
VIII. CoNSOI.iliATloN ok Aci'loNS AND SciTS —
,SV( Fraciici: at La\,' - I'ractk k in
Eyrrrv.
IX. Penal AiTions — SVc Penal Actions.
X. CoMPorNDiNfj Penal Actions— .SVv Cri.m-
iNAL Law.
XL Restraixini! rv lN.jrx('TioN — Sen In'-
.JUNCTION.
I. Form ok.
1. ^i .<.<)/ ;«/M/7, Dilil, and Cori-natit.
A. having a claim on the government for cer-
tain wild lands, gave a bond to B. to procure a
patent for the same in B. 's name, for a certain
sum. A. did so, and informed B. of it, who
refused payment : — Held, that A. could main-
tain assumpsit for the value of the land sold,
and for services rendered in procuring the letters
patent to B Macaulay, J., diss. Kilborn v
Forc.fter, Dra. 332.
Where A. and B. entered into an agreement
under seal for the sale and purchase of land, and
B. paid £33, but afterwards refused to complete
the purchase, as the title could not be made good,
and rerpiested A. to pay back the inoney ad-
vanccil, which ho then promised, but afterwards
refused to do, and B. brought an action of as-
sumpsit against him in a district court and re-
covered judgment : — Held, on error from the
district court, that t)ie action would not lie, the
remedy being on t!ie scaled instrument. Clarb-
V. Andrr-soii, E. T. , 3 Vict.
Indebitatus assumpsit will lie for chattels, if
their value be set forth in the declaration. Lis-
ti r v. iVarrrn, G U. S. '250.
For the non-payment of money awarded in
accordance with a deed, the plaintiff should sue
in covenant, not assumpsit. Tail v. Alkiii.foti, 3
Q. B. 152.
Under 1 1 Vict, e. 14, the Conaumera' Gas Co.
of Toronto may sue in assumpsit for calls, not
in debt only. ('iin.'<iiinrr-< (!a-< Co. v. \iroli-i,
7 Q. B. 91. ■
'2, Cu.tr and Trft^jianf.
Case, not trespass, lies against a sheriff for
selling goods within the eight ilays. Muori; v.
Mnkolin, Tay. 273.
I ,
27
ACTION AND SUIT.
S8
;i :
V'\
m
Trespass, not case, lies for malicious prosecu-
tion, wlua-e tlic magistrate, wlio was put in mo-
tion liy defendant, aete<l wiiolly witluiut juris-
(lietiiui. I/iiii/ V. Mr Art /ill,; 1.'4 i). I'.. IT)!.
Though !i capias bo set aside for irregidarity,
ease will lie against the parties suing out tlie
«anie maliciously, liut against the party making
the arrest it sliould l)e trespass, ('iiiiiirun v.
rhijllirit III., Itg. P.. l.'iS.
An ohjection, that trespass and not case
should have been brought, because defenilant's
act was wholly illegal ; — Held, not tenable.
Jliij.-iiiii V. 'J'lioiiiji.'ioti, ii(i. it. 'id I.
Amendment to ccivort an action of case into
one of trespass refused. Eiiirirl: v. Siil/irmi, '2')
y. I',. 10.').
Case held maintainable against a bailill' of a
court of recjuests for falsely swearing to the
service of a sunnnons, whereby judgment was
given against the plaintill ; and this remeily is
not taken away by the action given on defen-
dant's covenant, under the Court of lie luests
Act. Clitie V. McDonald, E. T. L» Vict.
The plaintill" declared in case for an injury
done to his horse by falling into a hole made
in a public highway, by the water overflowing
a mill dam of the defendants, and tearing up
the road, alleging that it was the duty of the de-
fendants to fill up the hole, or fence it around,
so as to prevent accideiits. The declaration was
held insulhcient, as it ought to have been framed
for the malfeazance in erecting or continuing the
dam, &c., and not for the nonfeazance com-
plained of, in not tilling up or fencing around the
hole. XillU V. ir;//v.s ,'( a/., 1 {). H. 4(i.
Case will lie for collusively obt.aining from
defendant's debtor a confession for more than is
due to him, under wliich the debtor's property
has been sold in execution ; and it may be main-
tained by any creditor injured by these collu-
sive proceedings. J,i i/ v. Miii/i//, 1 i). B. 'AH.
A lessee assigns his interest, and the assignee
of the assignee; neglecting to pay rent and repair,
the lessor sues the lessee, who sues the assignee :
— Held, that case would lie for the rent .and
d.am.ages the iilaintiif had been obliged to pay
the lessor. Aslifwd v. Il<i<h; (i (i- 15. ■'lU.
Case, not covenant on an agreement between
the parties : Meld, the ]iro])er form of action
for pemiing back water. Kiislirnntl v. Jli lliin /I,
4 ( >. .'>;. as.
11. I'.V AND AIIAISST WHOM M AINTAINAItI.E.
By jiolice magistrate, against town council for
p.al.ary : I- Vict., c. SI. H'lV/vw v. Tin Tmr/i
CiiinirH <>/ llriiiil/vril, .'J C. I'. 470.
By mortgagee of goods, ag.ainst iienions selling
or seizing them. MrLmil v. Min-ii;\>V I'.
li»7 ; lhn<rif V. ihtlUiii, Mi y. B. -JOT.
By mortgagor of eliattclM against mortgagee,
foi' :;ei/,iire before default. MrAiilm/ v. Allni,
20 C I". 417.
1')) li usurer as obligee of bond directed by
statute to be taken to munieiiiality. Tuilil v.
P>rr;/, 20 Q. B. (i4l».
Action by municipal corporati(ui against one
of its memliers, or against another municipal
I corporation — when it will lie. ('iir/iordliiiii of
■till' Tiiini of ('liiitliiiiii v. //oiii/iiii, 21 i). |{. r>.")0 ;
] .^/iiiiiri/iiilili/ of /III 'J'liirii.s/ii/i of h'li.-it A'/™<)((/(
j v. /lor.iiiiiini, id Q. B. ,')."i() ; /liimii Oislricl
< 'nimrll V. I.oinliiii Di.^/rir/ ( 'uiiiiril, 4 <i. B. .'iO-.
.Action liy executors under ('. S. C. cap. 78,
against an innkeeper, under the Temperance
[ Act of 18(14, for furnishing liipior to thinl party,
I who became intoxicated and killed intestate,
\MH'iu-il!i \. Sirifi, 17 C. I'. I'2(i.
j The owner of a horse hired out to another may
sue for injury to it, ciused l>y negligence of an
innkeeper employed by the person hirini; it.
i Wiilbr V. Sliiiriii; ;u g. B. :tio.
i
\ Action will lie by county .attorney .against
county council, for breach of duty imposed by
statute to provide him w ith ollice accommoda-
tion. Aces' V. '/'Ill' Cur/ioriitioii III' tin- t'niiii/i/ if
: Carlloii, M.'i Q. Ji. 40it.
III. Foi! What M.u.NTAiNAr.LE.
1. Sii.ijiiii.'iioil of Art toil ill Cii.ii's of Fi'lunif.
The plaintiff's horse had been stolen, and sold
at public auction, but tin- tliirf inis iinkiioir,,.
The jilaintitl' afterwards seeing the horse took
possession of it, and the purchaser retook it from
him:— Held, that the plaintitl' might maintain
trespass against the purchaser, without shewing
a prosecution to conviction, /joirnmii v. Yii-lil-
iiiij, M. T. .'} Vict.
In an action for money had and received : —
Held, that an exemplification of an indictment
upon which tlefenilant had been convicted
of embezzlement, but aetpiitted on a charge of
larceny, was admissible to shew that defendant
had been ac(piitted of the felony, so that the
civil actiiju would lie. Mnrilonnld v. Kitvliam,
7 C. P. 484.
In an action against a carrier for the non-
delivery of a package of money, where the evi-
dence sullicicntly shewed a felony a nonsuit was
ordered. Hagarty, J., dissenting, as to thesulli-
ciency of the evidence. J/iriiiijitoiii- v. Mituxiij,
'23 Q. B. 15(i. f.Sec, however, W'llUw Abnilium-i,
L. K. 7 Q. B. o54, as to the propriety of umii-
suiting in such a ca.se.]
The rule which prevents a civil remedy being
taken whilst the prosecution for the felony which
is the foundation of the action is not concludeil
does not apply where the crown and not a pri-
vate i)er.son is the jilaintitf. liiii'iiiu v. Jii-iil'm-
■!lr!,i, ;-) v. I{. 17."). -(.Miami), (la'lt.
Under the Temperance Act of ISM, where the
deceasud hail been assaulted and killed by a
person who became intoxicated by drinking to
excess in defendant's inn, it was held that tilt
legal representative might maintain an autiuii
under C. S. C. , c. 78, before prosecution for felony.
McCiirdil v- I'^irifl, 17 C. 1'. 12().
As to the right of action for seduction whuii I
the evidence proves a rape : see Hiii/lr v, Hiiiik j
:iO. S. 2Q'>; Vinrmts: Spraijiie, S'Q. B. L'83;|
lirowii v. Dnlhi/, 7 Q. B. 100 ; WaM v. A'a^/cd*
19 C. P. 453 ■; Willinim v. Jfohimoti, 20 C. P.
25,5.
29
ACTION AND SUIT.
30
'2. Ill nniiilmifi' of Cimii/i/.
It is not necessary to plead a special plea of
(•ircuity ff action ; « ' i^never this appears l)y the
reooril'it is an answt I to the action. A'o.-^r v.
flohliii, 17 C. r. 050. See (Vrnvj// V. Rohi rfmii,
l.-,('hy. 173.
Action for not accepting a conveyance of land
or paying •?! 000 as agreed, claiming iJ3(X)€a.s liipii-
datcii damages under the contract. Defendant,
after two trials of the case, jileaded that the
rilaintift' had not at the time of the alleged
iircach, or at any time before this suit, a good
title to the land, and was not able to convey the
same as agreed, and the i.ssue on this was found
for defendant : Held, that .as ]ilaintitl' had not
pued till after the time for jiaymeiit by defendant,
anil had not title, he was as nnich in default at the
conmicnccment of the suit as defendant, and as
the clamages would be the same against both
parties, the defence WiW a good answer, in avoid-
aiKT of <'ircuity of .action. Kostir v. Ilulilni, 17
V. \\ t'-'iO.
;i. ()tll<r <J<lxi:s.
Not maintainable .against Well.and C.'an.al Co.,
fur ovorllowing pLaintitT's land by letting surjdus
water out to preserve the canal, as .authorized
by their ch.arter. (Iriffithx v. Willawl ('n)i(tl
I '•). , .") ( t. S. (ISO.
r]Min a contract to do certain work within a
.s)H'cificd time, with a penalty of £4 per week in
case of default as rent of the premises ;- Held,
that an action would lie at the suit of the plain-
tifr to recover this sum from defend.ant, though
liy the agreement it wa.s to be deducted from
tlie lust pnvment. liichards, .!., diss. (I'lid-in v.
\\'(ii,K, !!('. r. .SI 4.
Qn.TVo : Can the (ias Ccmipany of Toronto,
under their act and their lease from the city,
carry on their work without liability for inii-
satii'cs injurious to priv.atc rights, which they
could, ))y due e.are, have avoided ? Watnoii v.
G(if< Conipmiij, 5 Q. B. 202.
Action will lie for injury to a right, though no
ap]ireciahle damiigc. Mitchell v. Burn/, '2H (}.
B. 416 ; Pliinih v. McGannun, 32 (). B. 8. Wnr-
rvn V. /)r.'<lii,pr:-<, 33 Q. B. .")9.
Action for obstructing or not maintaining pub-
lic highw.ays. Proof of injury peculiar to ]>lain-
tiir. ^cv ilnniilton and Bruch lioad Co. y.O'. IT.
J{. Co., 17 Q. B. r)()7 ; J'lcwci v. J fall, 29 <^. H.
472; IMrdy. Wil.son, 22 C. P. 491.
As to when a right given by statute may be
j enffirccil by .action, and when a particular remedy
J given by the statute excludes the right to sue.
Li/Ill V. Incc, 3 C. P. 528 ; Tin- Cor/ionilion of
[the Ciimtlfi of Frontcnar v. The Corjiorntion of
1 (/-■ ( ■U;i of kimj'ilon, 30 (^ B. 584 ; S. C. 20 C.
\V. 49; .yidiiri/iiil ('niiiicil of W'llHiiijIoii \. Mnii'i-
'icipiiltfn of WHitiol, I7Q. B. 82; Mi'irroi/v. Dair-
«"/), 17 <'. P. 588; Prcx'iildit, Ac, if t'/i< Bronte
\Hil,-hnm-\. White, 2\\V. p. 104.
Where the ])irty before the time stipulated
[for performing his contr.act, declares that ho will
[Dot iierftirm it, the other party may treat this
(as a breach and sue. Dulka v. Tinjlor, 34 Q.
IB. 12. J ^ i
IV. Xoi'K K ojf Action.
1. Fortii mill lii ijiii.iitt ,-t if
(a) S'lnm tiinl lii'-iiili iiei if I'luiiitif innl .-Iftor-
tii I/.
It is sutticient if notice of .action under the
Division f'ourts' Act, 4 i^ 5 X'ict., c. .'I, s. (il, be
signed by the attorney of the jiarty comjilain-
ing. Ki iiilili V. Mrtliirr;!, O. S. ,">70.
It niu.st declare tlie ]ilace of residence of the
attorney. The subseriiition therefore of the
attorney at the bottom of thi; notice, "A. B.,
attorney for the said ('. D., Sinicoc, Talbot Dis-
trict," was held insullicient. ^^'/<.^■ v. IIV/.vA, !>
(I 15. 498.
Held, that in the notice set out in this ease,
the residence of jilaintill's attorney was snlfi-
ciently stated. (,'ilh.-i/ie v. H'c/f/A/'M Q. B. ,52.
The name and place of residence of tlic ]ilain-
tiir's attorney were not endorsed on the notice,
but added inside at the foot of it : Held, sutli-
cient ; and that, at .all events, such objection, not
h.avinjj been taken at the trial, could not be
ni.ade in banc. /iro,s.i y. Ilnlier, 15 (^>. B. (i-i.").
A notice of action given to a .). I', as fol-
lows : "To .John (i. Iiowes, of the city of
Toronto, Ksiiuire, I, Annie Armstrong of" the
city of Toronto, in the Province of Canada,
spinster, residing with my lather, .lames .Vrni-
strong, .at Xo. 148 Duches.s street, in the .saiil
city of Toronto," &c., signed by the jilaintifV,
and endor.sed "C. P. Armstrong v. P.owes, -
Notice of Annie Armstrong to .lolin(i. P.owes.
- The within named Amiic Arnisti g resides
at Xo. 14S Ditchess street, in the city ofToronto.
Cameron k McMicli.acl, for tlie ]il,aintill":
Hehl, in.sutlicieiLt, not having the jilaee of abode,
or business, of the attorney endor.-;ed, nor the
court in which the action was to be brought stated.
Ariimtronii y. Botn.'i, 12 C. P. 5.39.
A notice describing pl.aintiff's pl.ace of .alxide as
"of the towashi]) of (iar.afr.axa, in the county
of Wellington, laborer," without giving the
lot and concession ; -Held, sullicient. Xeil.l v.
MeMillini, 25 Q. B. 485 ; followed n\ M.-DoiuM
V. Siwkeii, 31 <v>. B. 577.
(b) Stiiteiii'iit ofCiiiisc of Aiiiiiiu
In the notice for an aet done under the Petty
Trcs]).ass Act, it is necessary to specify the form
of action intended. ]\'iiilsir,,rlh v. Meirhiirii,
if action : —
O. S. 432.
Held, that the fidhiwing noti..
"And also for th.at you, (m,"&c., ".at," &e.,
did cause the horse upon which the said .1. U.
w.as then riding to be seized, taken, and leil aw.ay,
anil the said .1. U. to be obliged to dismount,
■and give up the said horse, and converted and
disposed of the said horse to your own use ; and
also, for that you caused the saddle and bridle
and halter then on the said lior.se to be seized,
taken and carried away, and to be convcrtetl
and disposed of to your own use, anil other
wrongs to the said .1. U. then and there did,"
&e., was sullicient to enable the plaintifl to
recover the value of the horse .as being his pro-
perty. Robinson, C. , I., diss. Cii/iery.McFar-
land d at., 5 Q. B. 101.
81
ACTION AND SUIT.
33
Tresjiass ii;^'i»iint iniigititratt's for falKo iiii-
])risoniiic'iit. TIii^ iidtii'c Kft nut in the iviso lu'lil
iiiiftit'it'iit iifi t" fiiiiii of action to ho hnni^lit.
CiiiiiidIIii \. Ailiiiim/ ii/., 11 l^>. H. ;(27.
" I'or that you (tlicclcf'tulant) on," i*ti'., "at,"
i^;t'., "r.i'i/LMl ami took auay <liv{'i'.4 gooils ami
chattel" of till' iplaiiiliir,"«taliii;; till' value, "ami
I'onvcrtnl ami <lis|)n.s('(l tlicrcof to yoin' own
Ufu', ami other wrong's to the wiid (the iilaintifi)
dill, to hii-i gieat ilania;;e of t',"iO, ;inil a;^ainst the
}ieace of our ladv the l,ineen": Held, nullleient.
(,'i//,.-<jiit V. U'ri'jl'l, 1 K,>. I!. .VJ.
(f) .'■•/(III III' lit III' '/'hill mill I'lii'i.
Xoliee of aetion must eonlain a i.tatenient of
the jilacu wlure the tresjiass or injury was eoni-
niitted. Ki iiil'li v. Midiimj, (i ( >. S. ,")70.
A notiee of aetion against a magistrate nnist
distinetly sjieeify the jilaei^ where thi^ aetion
eoniplained of was done. Mm/i/iii v. S/ii tn r, '2
Q. 15. 115.
The |)laec w liere the idaintilF was imprisoned
nnist lie eorreetly stated ; the faet that the in-
jury took jilaee in the same distriet, thnuidi not
at the exact jilaee named in the writ, will not
make the variance less fatal, ('rimkliili v. Sum-
iiurrilli, ;?Q. B. I--".).
The notice of action in this ease against magis-
trates for false imprisonment was held suftieient
as to statement of place where injury committed.
Cunniillij V. Ailinns it iil., 11 Q. B.3'27.
Semblc, a notice to a magistrate is had if it
omit the time and place of alleged trepass.
Frii'lx. Fcnjiifioii, K") ('. P. oS4.
The notice stated a trespa.sR on the ISth of
October, and on divers other days. The goods
were seized on that day, hut returned, and
seized on the 18th Novcmher and sold : — Held,
notioo sulKcient. Oliphaiit v. Lixlii, 24 Q.B. 398.
In an action against a .1. P. tlie notiee st.ated
that defendant assaulted plaintiff, imjirisoned
him for four days, and caused him to he illegally
arrested, and gave him into the custody of a
constable, and illegally committed and sent him
in such custody to the goal at the town of Lind-
say, and caused him there to he confined for a
long time; -Held, insutheient, as omitting to
state Avhere and when the assault took place,
and the evidence not l)eing contincd to the im-
prisonment at 1>imlsav. Pnr/ci/ii v. S/a/ilrx, 10
C. P. 240.
Notice of action held insutiicient instating no
time when the grievance eomjilained of was com-
mitted. S/iriiJKj v. And); 23 C. P. I.')2.
The first <'ount and the notice alleged that
defendant, on the 30th Aiiril, 1872, assaulted
and imprisoned the plaintiff. The plaintiff's
eviden''e, on which he obtained a verdict,
shewed that about the 2r)th April he was
brought liefore defemlant, a .1. P., on defend-
ant's warrant, rci|uiring his appearance and
ordered to find sureties for the ]ioace, and that
on the 30th he was again arrested an<l conlincil
in gaol, itiider defendant's warrant issued on
that d.ay for disobedience of the previous order :
— Held, that (or the eanse of aetion proved the
notice w.as clearly insutiicient; hut Semhle, that
the plaintiff might have met the objection by
contining his evidem-u ami claim to the impri-
sonnu'iit on the .'lOtli. Hi.
A notice of action in trer.)iarn nndir the
l)ivi..i<.n Courts' Act, ( '. S. V. ('. c. 1!», .'■.. 103 :
Held, in.nillicicnt for not stating the time and
]ilacc of till' alleged lre.s|p;ts:H. There is no liub-
stanlial dilVcrcnce in Ihis re.qiect lictwecn the
form of notice rei|uircd under that Act, and
under ( '. S. {'. ( '. c. 12(1. Mmn'i v. titilln/,
32 (,». I!. 2.'!;;.
(d) Tiiiii III' S( rrii: .
The notice rei|uin'd uiidir 4 & .i ^'ict. c. 2r),
r.. 40, "one calciular moidti, at least," bcfon*
j action, nu'aiis a clear mouth's notice, exclusive
of the (irst ami last div. /)■ m/ni i/ v. Dninili-
irlii, 7 <i». 15. 313.
Notice of action served on Ihc 2.Slli March,
and writ sued out on 20lh April : Held, suOi-
eicnt, as 1 eiug at least (pue calendar month's
notice. Mrliihi.-hw Vaii.iln iilivnjli, H (i. P.. 218.
(e) llthn- ('iixi.-<.
It is no objection that the plaintilf declares by
a different attorney from the one by whom the
notice was given ami jiroecss issued. Mi-Kin:.ii
v. Miirhiim, () (). S. 48().
In a notice of Aetion to a .). P. under 24 (leo.
II., e. 44, the date of the warrant iis statcil
in the notiee varied from the date as proved ; —
Held, not fatal. Iliifsm v. W'anI, 8 Q. B. 502.
In the notice the warrant was stated to have
been directed to William TluMupson, whereas
it was really directed to A\'illiam H. Thomp-
son : — Hehl, not a fatal variance. //'.
The warrant directed Thomjison to levy
£1 \\i. (i(/., together with the charges of dis-
tress and sale. The notice of aetion dcscribnil
the warrant as one directing Thompson to levy
a certain largo sum of money, to wit, the sum
of £4 : — Held, no variance. ///.
A notiee that the suit will bo brought in
the Court of Q. B. or C. P. is insufficient ; the
particular court intended must be specilicd.
Where this objection had not been taken .at the
first trial, and a new trial was granted on other
grounds : — Held, that defendant could urge it ,it
the second trial. lh-i>!<>i v. Hiilni; IS <,). 15. 2S'J.
Xinll V. Till Cur/iuraliim of y.'-w.s 22 C. P. 4S7.
Such a defect could not be ameiide<l under the
Administration of .Iiistice .\ct, 187.'^. MvVviiu'
V. /•'«/-(/, 10 I,. J. N. .S. 10."). C. L. Chamb.-
Dalton, i: ('. A- I'.
A notice to a I )ivision Court h:iiliff under ( '. .\
V. ('., c. 10, s. 103, stated that th.\ writ woul.l
be sued out of the County Court of Brant, Imt
it was issued from the County Court of Went-
worth : -Held, notice insutiicient. Buck v.
Jlviihr, 20 y. 15. 43().
A defendant, after accciitiiig scrvicj of an
informal notice .added, "and .agree to accept tin
same as a sufiicient notice of action to ine uiuler j
the statute :" Hehl, th;it ho could not after-
wards rely on a defect in the notice. IJoimlil-
.■<ii)i V. //<//«,'/, 13 C. P. 87.
Xo jiarticular addition or description of tiir
magistrate need be given in the notiee. /luadi
V. Aih'iih^uii, 14 C. 1'. 201.
33
ACTION AND SUIT.
34
•2. J'ninj of.
Ill tresiKVaa ugaiiiat a mivKistrate for fiilse iiii-
iiri.-ionmeut nntl seizing aim selling gooils and
uhattfls, where he aiiil'ers jutlgiuent by default,
it is uuuecossary for the plaintiff to prove that
lie I'avj notice of action or coinineiiced his suit
witiiin six months. Mills v. Coiiijcr, 4 O. S. 383.
It is suHicient if it appear by the nisi prius
recoiil that a month had elapsed between the
service of notice and tiling of the declaration,
and if the writ were really sued out too soon, it
must be shewn by defendant. Ilnhiht v. Bal-
Ian/, ■-' Q. li. 2'J-
Held :— That the following evidence of a bail-
iff, as to the service of the notice— "He and
two others held the respective papers while they
were read and compared, but having allowed
plaintiff 'a attorney to keep in the meantime the
orii'inal, with which the copies were thus com-
ijaied, and not having marked it, he could not
siwear with certainty that the papers served
were copies of that document," — was sufficient
to go to tlie jury. Hi/rih's v. Wild, 7 Q. B. 104.
Si'f also (Inriliii r v. Biinrell, Tay. ')l.
,"5. To Munirijuil Corporatioun.
Helii Richards, C. J., Wilson, J., and
Mowat, \ . C, dissenting— that municipal cor-
porations are not within C. S. U. C, c. 12G,
and therefore not entitled to notice of action.
Hdihjiii.i V. Tlif Corporation of tlic United Coiin-
titt! of Huron and tirtuc, 3 E. & A. 169.
The courts of Q. B. and C. V. had previously
differed as to the right of municipal corpo-
rations to notice of action ; the Q. B. holding
that they were not, the C. P. that they were,
entitled to notice. See in Q. B, Brown v. Muni-
dpid Council of Sarnia, 11 Q. B. 215; Snook
V. The Town 'Council of Brantford, 13 Q. B.
G'21 ; Marirath v. Municipality of Brock, lb.
G'J9; Perdue v. Corporation of Chinguacousy, 25
Q. B. 61. See in C. P. Croft v. Town Council
of Pderhorouijh, 5 C. P. 141 ; Reid v. Corpora-
'iion of Hamilton, lb. 269 ; Barclay v. Muni-
dpalily of Darlington, lb. 432; Allen v. City of
Toro)ito,'iiC. P. 334. See, also, Prouse v. Oknny,
13 C. P. 560; Harroldx. Corporation of Simcoe,
16 C. P. 43.
4. Jiii<tice.i of the Peacf.
If it be doubtful whether defendant was act-
ing in the execution of his duty, it should be left
to the jury to say whether they believed he was
acting aa a magistrate or not ; and if they find
in his favor on that point notice must be proved.
Car.-iurll v. Hufnian, 1 Q. B. 381.
Where the plaintiff 's evidence shew's that the
defendant siie<l in trespass was acting bonfl fide as
a justice of the peace, and the jury so find, the
■ plaintiff" must [n-ove notice of action ; and this
though defendant has pleaded only the general
issue, without adding "by statute," in the mar-
:gin. .Varsh v. Boulton, 4 Q. B. 354.
Held, that in this case the evidence fully war-
ranted a finding that defendants were not acting
or intending to act aa magistrates or peace officers,
but as interested parties ; and that this was a
question properly left to the jury to deter-
mine. CusicK v. Mcliae el al. , 1 1 Q. B. 509.
A magistrate is entitled to notice, though he
has acted without jurisdiction. Where it was
clear that defendant had acted as a justice, and
there was no evidence of malice except the want
of jurisdiction : — Held, not necessary, to entitle
him to notice, to leave it to the jury to say
whether he acted in good faith. Broun v. Iluher,
18 Q. B. 282.
Where a magistrate acts clearly in excess of
or without jurisdiction, he is nevertheless enti-
tled to notice, unless the bona tides of his con-
duct be disproved ; but the plaintiff may require
that question to be left to the jury, and if they
find that he did not honestly believe he was act-
ing as a magistrate, he has no claim to notice.
Neill V. McMillan, 25 Q. B. 485.
The magistrate having acted in direct contra-
vention of the statute, in issuing a warrant
without the proper information, or even a verbal
charge against the plaintiff', and there being no
evidence of bona H<les on bis part, the court
held that he was not entitled to notice. Priel
V. Ferguson, 15 C. P. 584.
Semble, that the fac^t of a magistrate issuing
a warrant without the limits of the county for
which he acts, does not necessarily disentitle
him to notice. Ih.
In an action for wrongful arrest, though the
conviction made by defendant is void, he is en-
titled to notice of action if he was acting in his
official capacity as a magistrate, and had ;; iris-
diction over the plaintiff in the subject matter.
Haacke v. Adanmn, 14 C. P. 201.
In an action for a penalty for acting as a jus-
tice of the peace without qualification, *''
defendant is not entitled to notice. Crabb q.
t. V. Longivorth, 4 C. P. 283. •
Nor in an action for not returning a convic-
tion. Grant q. t. v. McFadden, 11 C. P. 122.
5. Bailiffs and their Sureties.
Want of notice to a bailiff of a Division Court,
acting under 4 & 5 Vict. c. 3, must be pleaded
specially. But where a bailiff, seizing goods
under an execution, is entitled to notice, the
plaintiff in the execution is not, as he is not a
"person acting in the execution of the act."
Timon V. Stubbs, 1 Q. B. 347 ; Fowke v. Robert-
son, 6 0. S. 572.
The plaintiff declares in trespass for breaking
and entering his close in the Xiagara District
&c. Defendant pleads that, being bailiff of a
Division Court in the District of Brock, he
committed the alleged trespass in discharge of
his duty as such, and that no notice was given
to him of the action one month before it was
brought. Demurrer to the plea, on the ground
that it is not shewn by what authority the de-
fendant, through a bailiff' in the District of
Brock, acted in the District of Niagara, where
the trespass is laid : — Held, plea bad. Davis v.
Moore, 4 Q. B. 209.
The statement of a bailiff, that "he believed
the cattle to be the plaintiff's," but that he
was indemnified and had to sell when he seized
dH
ACTfON AND SUIT.
30
; 1
them ill execution against tlie jjitsou in ijcis-
HfBsion, iliiLS iii)t iiiak(! a imticu 1111110. 'UHHiiry.
.loUL'H, .)., lliss. V((//(/i (■.-■■i</( v. I 'nil 11(011, 4 i).
B. II!).
'rill! biiiliil' of !i Uivisiiiii Court, actiiij,' in tlio
(liscliiirj^i! of liis tluty as such, is eiititk'il to
notice ; ami ths't olijcction is oijcn to him uiuU-t
the plea of not Ljiiiltv hv titatute. /htir v. ('not,
4('. V. 4(;0.
A haililV of a liivision Court was licM not
elititleil to notice, under i:t & 14 \'ict. e. ">.'{,
s. 107, of an action to recover the excess of
money levied under an e\eciitioii. /lull V. Cdiil,
(j c. i*. 544.
Bailill's of a Division Court arc entitled to
notice of action for sei/inj,' goods, although
acting under a warrant without seal. Am/irsiui
V. ^V(/(r, 17 1^>. I!. !ti;.
A hailiir is entitled to notice of an action
upon the statutory covenant, for execution,
Bcizure, and sacrilice of plaintitl's goods. Such
action must he hrought within six months;
and tlio defence may he raised under the gene-
ral issue liy statute. /''«/-s',» v. Hiillmi il iil.,
I.J C. I'. 7!t".
(^Uierc - 1. Are the sureties of a Division Court
hailill', in a joint action against principal and
sureties, entitled to notice of action to theni-
selves ? •-'. ( !;iii they plead the want of notice
to the hailiir in their own protection ? 3. Can
they, in an action against tliriiiii'lri'.t, take
ailvantage of the vant of notice to the fxnUjf',
or of any other defence that would have been
open to the latter '! Ihit : -Held, in this ca.se,
as the recovery must he against all or none,
that t)ie discharge of the luincipal involved that
of the sureties. ///.
A Division Court hailill' is entitled, under C.
S. U. C. c. 1!(, s. I'Xi, to notice of action for
seizure and sale of goods un<ler execution, al-
though he is indcmnilied and directed to sell by
the execution creditor. Liiiiijli v. ('ulinnui, "iif
Q. H. 307. See also Mit'niiff v. lidliniiiii, 12
C. I'. 4G!).
(>. To Cundahliii.
A warrant to arrest the plaintifl" was directed
to one S. and all other peace ollicers of the
county. Defendant was sworn in as a special
coiist'ble to assist S., and he went alone, not
having the warrant with him, and made the
arrest, (tn action brought, the jury found that
defendant believed he was acting in the execu-
tion of liis duty:- Held, that under 14 & 15
Vict. e. 54, he was entitled to luilice. Sivje v.
Diqtii, 1 1 Q. B. .SO.
Where the de'eiidant, a constable, had had
no notice of action, it was left to the jury to say
whether a coiistalile who liad arrested a man
without a warrant aeteil uiuler a lair and rea-
sonable suiiposition that he was performing a
public duty : Held, a proper direction, and a
verdict for plaintill' was sustained. Cottnll v.
HiU'stoii, 7 C. P. •J77.
The Imperial Statute 21 Jac. I. c. 12, does not
entitle constables to notice, or limit the period
within which they may bo sued. Bdch v. A rnott,
9 C. P. ()8.
7. (filler Pcrno}}!*,
Notice of action to surveyor of streets, uiidei-
24 (Jeo. II. e, 44; — Held, not necessary. Mr-
FiivliiiK- V. Mi-Doiiijiill, ,*{ t». S. 7:1.
A party who, acting as a revenue otllecr, or
eoneeiving that he has authority so to act, seizes
g(jodH, is entitled to notice without the iieci ssity
of proving his enininissiiui or appointment.
Witihirniih \. Miir/,/iil, I t^ I'.. IIH).
Where the seizure was by a per.-.on not then
authorized, but whose act was subsequently
adopted and sanctioned by the collector, he wai
held entitled to notice under the eustoins .\ctj.
IVaihirurlli v. Min-jihii, 2 (}. H. 120,
A iiarty arresting another while engaged in
the act of stealing his propitrty, is entitled to
notice under 4 & .'"> N'ict. e. 25, s. (i7. .Ur/hninlil
V. (Jiniii'i-dii, 2 (,». B. 401i.
Where an action was commenced after 14 Ik
15 Vict. e. 54, for a trespass committed before,
against an ollieer protected by this Act but not
previously: Held, that the statute would iiol
ai)ply, and that the defendant was therefore
not entitled to notice. Drajicr, .1., diss. Wliih
V. Clark I'll i-MI I \. Clurl,; II (}. B. i:i7. See,
also, Whilr V. Cliirk, 10 (,>. 15. 4!»0.
1() Vict. c. ISO : Held, not retrospective, so.'i-i
to make the notice of action re(piired by it ap-
plicable to causes of action accrued befoie the
Act, or to compel the jiarty injured to sue in
civse and not in trespass. Cntirl: v. Mr I'm, II
Q. H. 509.
Case for maliciously suing out an attachnieiit
in a Division Court : Held, that defendant «as
not entitled to notice, for the statute was in-
tended to protect persons acting under it in the
discharge of some duty, not for their own benelit,
I'nII v. Ki'iuu-n, 1 1 Q, B. .'{50.
A sherifl' is not entitled to notice of an acticm
against him arising out of his execution of a ti,
fa. in a private suit. Mr \V h'lrti r v. ( 'urhrlt, 4 ('.
P. 203.
The defendant being path-master, and assum-
ing to act as such, moved the plaintiff's feiicus,
the effect of which was to take otF land from the
plaintiff's lot and add it to defendant's. No
notice having been given, it was left to the jiiri
to say whether defendant acted bon.l lide in tlit
execution of his duty, and they having fouiul
that lu! did, the court refnseil to disturb t\u
verdict, Jhlllinll v, Tai/lur, lU l^. n. 279.
Notice of action for acts done unc.er a by-law.
Carmiclwrlx. Skiirr, 9 C. P. 423.
Notice of action to registrar for negligent omit.
sioii in eertilieate : — Held, unnecessary. Han'.-
.son V. nreija, 20 Q. B. 324.
Held, ill deference to former decisions of this
court, that a school trustee sued for any act
done in his corporate capacity, is entitled tu
notice ; and this notwithstanding he may h.w
signed a warrant individually instead of in his
corporate capacity, if he was acting in the dis-
charge of his duty as tru:itee. Spry v. Miimlij,
1 1 C. P. 285.
A collector of school taxes, who eommitteJ a
trespass while acting under a warrant issued by
the trustees' authority, was held entitled to|
notice of action. lb.
3G
37
ACTION AND SUIT.
38
rt, uniUn-
tlicer, or
L't, Sf i/fS
iiuL'isaity
iul.ineut.
not thfii
lequeiitly
1-, he w;ii
)lll:l Auti.
igagctl ill
utitleil til
MrDoiKihl
.ftur 14 &
L'll befoiii,
ut but nut
woulil not
tliurefoif
ss. W'liil'
i:!7. S.»',
ctivu, sons
(I by it all-
befoiv till'
I to HllO ill
Mr I!"', II
iittachnitiit
'entlant w as
ute was ill-
ev it in the
)wn benulit.
)f an action
itiou of a li.
'urMt, -4 1 .
.vnd assuiii- ;>l
tl''a fciiCLt.
lid from till'
[ant's. N'l
to the jiin
iiJe ill tlu-
viiig foiiiul
disturb tliu'
};. -JTy.
lt a by-law.
lligent oiiiii
■y-
//((/•;■
lions of this |
|for any ait
entitled tu
may have
tid of in liis
; in the dis-
I'v. Minnlii,
DminitteJ a I
|it issued by I
entitled to
Hold, that a plaintiff in a Division f'ourt
guit who, on an execution against the coods of
A., indemnified the bailiflF for seizing and selling
the goods of B., was not entitled to notice, or to
the protection as to venue. DnHeri/ v. Whn/ei/,
12 C. V. lori,
Held, followinc Kinnedy r. Burgesn, !,"> Q.
B. 487, tliat arbitrators lietwcen school trus-
tees anil a teacher, under the Common School
Act, acting within their jurisdiction, are entitled
ti) protection under f. ,S. V. C. c. 12(), as per-
sons fullUling a public duty, fliirj/ir.i v. I'ab
f/rT/.,25Q. B. n.").
A pound-keeper, acting ns siicli, i.s entitled to
notice of action under t . S. IT, C, c. 12f), and
it must be averred in the declaration that in
discharging his duty he acted maliciously and
without reasonable ami probable cause. Darin
V. Willmim, )3('. P. .%.").
Pefendant was sued as mayor of a town for
refusing to sign an order to cnalilc plaintifi' to
(ibtain a saloon license. The notice of action
wa"! signed by plaintiff', with the name of plain-
tiff's attiirney endorsed thereon :--Held, 1. That
(IS it must lie presumed defendant, in refusing to
sign the order, intended to act in the discharge
(it his otiicial duty, he was entitled to notice.
•J. That the notice was insultieient, not being
rmlorsed with the name and place of abode of the
)ilaiptill' and of liis attorney or agent who served
it. ',i. That the ipicstion fif the bona fides of
defendant in refusing to sign the order, not
Inving lieen raised at the trial, could not be
raised in term. Moran v. Pulmrr, l.S C. P. rj28.
Seinblc, that notice to a Division Court clerk
i< siitticiciit if it complies with C S. U. (A c.
lit, ss. l!l.'!, I!t4, tliougu it may not contain all
that is rcijiiircd by c. 12t>, for the latter act
dors not overrule the former, but they establish
rules f'lr distinct cases. MrPhaUir v, Lcxiic, 23
(.>. r>. "iX
Til muiiitipal councillors, in action for defraud-
ing tlic coriioratioii : -Held, not necessary. Cor-
• jiiirdl'diii (if III! Tuu'n iif ('htitluuii \. Ifuustoii, '2~
li. B. .-..■iO.'
An iilHiial a-ssignee in iiis(dvcncy sued fortres-
1 pass ill taking and .selling goods, is not entitled
I tu notice, An-hViudl \. Ilalihtn, TO Q. 30.
Ill an action against a justice of the peace a
|l)laiiititl' need not prove every tresinvss described
m iiis iKitice ; lie may prove what he can, and
rcciivcr fur what he proves, provided it be an
[ill jiirv stated in the notice. Bynn'ii v. Wild, 7
11." 104.
Ndtire of acliiiii is not necessary in rcple"',n.
'uhln- v. Mhiloii, 10 (l B. 423; KviuinUi v.
"", 7 (', 1', 218 ; A/ipliiinrth v. (Imliam, 7 C
171 ; y,'»;.s v. Tiulr, 32 Q. 1$. 108.
'\\v objection that no notice of action was
I ■<saiy iiiit having been taken at the trial : —
liM, that it could not be raised in term.
iw.^ii-uiiij V. liotnx, 12 (,'. V. 53!). See, also,
'irmi V. I'dhiici; supra.
.Vdtiie is uiiiiecessary where the action is for
1 nmi.ssioii, not an act done. Jhin-isouv. liirijii,
) I,'. I>. 324; llarrold v. Voriiomtiun of Simcoc,
6 ('. r. 43.
y. Parti Rs.
1. Plnilitifi.
Where an agreement under seal, for the com-
pletion of certain work, had been entered into
ny one of two plaintiff's, and the other, who wan
not mentioned in it, .'igncd and sealed it also,
and afterwards assisted in the work, and wai
recfignized and paid by delendant, for whose
benefit the work was done, as a joint contractor
with the plaintiff' mentioned in the instrument ;
-Held, that aHsiinipsit was maintainable by
both for the value of the work, an implied parol
agreement having been siilistitiited lor the in.
strunient under seal. /i'i/<.>./^ «/. v. Tnif, H. T.
7 Will. IN'.
Two of three plaintiff's contiai'ted under .seal to
do certain work, which was done by three, but
not according to the agreement. The three
having sued were nonsuited on production of
the contract. Tlu^ nonsuit was upheld, and an
amendment by striking out the name of the
third plaintitl', in order to save the Statute of
Limitations, was refused, A'/v'/v /• it al. v. Anrcll,
23 (J. I!, 481.
Where a tenant leased premises at one entire
rent, and his landloi-d dieil, having devised the
premises among several persons : — Held, that
those persons might bring sepiarate actions
against the tenant for such part of the rent as
each would be entitled to according to his respec-
tive share, without any other apportionment than
tliat V. hich a jury might inalvc in each suit.
Hon V. I'roiid/tiof, O. S. 017.
A. leases goods to \i., which the sheriff' seizes
under .an execution against H., but docs not
sell or remove them .-Meld, that if any trespass
was committed by the seizure, H. should sue,
and not .\. //< md r.inii v. Mnado , 3 (). B. 348,
Defendant signed a written retainer of D. &
K. as his attorneys, to pioseeuto one M. While
the suit was iiending their partnership w.a.'«
dissolved, and Iv retired, assigning to D. all his
rights. I>. alone apjiearcd as plaintiff's attor-
ney on the record:- Hehl, that D. might sue
alone for the costs. Duiii/idl v. Orb i-imiii, 9 Q.
B. ;{.')4.
An agi'ecniciit was made lietwecn defendant
and the idaintiff', described as " President of the
Port linrwell Harbour Coiniiany, on behalf of
tlic said President, Directors, and Company of
Port Burwell Harbour," and under the seals of
defendant and jilaiiititl' : -Held, that the pl.ain-
tiff' could sue in his own name. Soxtou v.
Itidhu, 13 (l B. 522.
Agreement with two plaintill's ; separate ac-
tions by each :— Held, not maintainable. I'rir
V. Iiii[l'(d(t (Hid JA(b- II II ran It. IT. Co,, 17 i}.
B. 282.
A. agrees to become surety to IJ. for all such
advances as 15. may make to C. during a limited
period. B. makes no individual advances to C.
at all, but during the period, I>. , with D., a
stninger to A., make advances to C. : — Held,
that W individually cannot recover from A. the
amount of the advances so made. S>ririi.-<on v.
Mrl.iiiH, nV.V. 208.
Defendants, by a policy dateil 2,')th August,
1870, insured the life of ".). C. for $1000, to be
paid at his death to the jdaiutiff' and two others,
children of said J. ('., and to his wife, if living,
^i
.'19
ADMINISTHATION OF JUSTICE ACT, 1«7.1.
40
to the rpprfucntfttivrH nnil iKtuijjiirfgof
mill cliiMrrn : lIcM, iiniliT '.'(» Vii-t.
othrrwiNo t
■aid wife Hill
r. 17, l>., (iii.l .'i:t Vi<t. c. •Jl. (t., that the |ilain
tiff, oil till- ilriith of •!. <'., iiiiKht Hiit> for hin, tho
iilaiiilill'H, iiiii't'imith nlmrr HciMirntfly, without
jniniiiK till' otlicrH iiittTOHtoil in tlio policy.
Ciim/ilirll V. Till Silliitmil /!>'■■ iHHIIIOIIf' Co. nf
iiic (',iit'i/sf,if,M, -Ml). M. .n.y
I'artii'H w III' fur iiuiiiy ycarx hiul the chief line
of a raiuil, iiml li.'nl alwayM rcHiBtcil |iftyinriit of
tollH ilnnaiiilril liy the Ichhci', were hclil to linvc
RiK'h nil intrirKt aH cntitlcil thcni to iiiniiitain a
liiii (Id whiih tlic Attonif- (iciuTal waH a
rlcft'iiilant) to have tin- lt'i...f dn'lnrtil voiil.
llim-khij w (lll,l,r.-<l'>r>, llM'liy. -.M'.'.
AltDINC I'AKTIKS.
I. In l'()KF.ri.nm'Rr St'iTM Sn MoRTdAfir..
II. In oriiK.H f'Asrs ,SV( AMFNtiMK.ST at Law
I'lKAtHNi; IN I'X'IITV.
AMDITION.
In Akkiiiavits Sn An
|i \\ ITS.
'2, I )ij'i nihility
«j,'i(i iiiriit wan fiitirt'il
All «^;i(i iiii'iit wan fiitirt'il into uniU'r seal
hitwicii .\., n., ami ('., for the aihance of
(crtaiii iiiiiinyH l>y A. to H. anil C, who were
imrtncrs in a mill luiMini'MH, ami who, from the
a.sHfts jirisinx fi'oiii the tnisiiicsst, were to repay
siirli ail. amis. I*. afti'i^ariU hecanit' a iiart-
ncr with |5. ami ( '. : lli'lil, that A. eoulii not
maintain an .irtinii of afsiinipKit a^'ainst B. , ('. ,
ami 1)., jointly for the rerovrry of tho balance
of Hiii'li aih limes. Mitllilunjii- il nf. v. Mirritt
it III., 1 1^. H. ;i;«t.
On a joint contract liy three, all must lie sued,
if wiiliin tilt! jiirisiliction. If one is without, the
other two must lie sued. Hue alone cannot be
sued if there are two remaining within the juris-
diction, becaiisi' all three cannot be sued. Cnrhett
V. r,ili-i,i, 4(,l. H. |-j;t.
Scnible, per hrapcr, ( '. .1., that when the tori
alleged is the non-pcrfonnanee of a joint ''.uty,
e. g., to repair a bridge, if the joint duty b»' not
proved, the plaintiff must fail in toto, and can-
not reco\-or against tho defeiidnnton whom alone
the duty is imiiosed. Wiimls v. The Mmiic'i-
[mlilji i;/' Will tin I rill, (j ('. I'. 101.
Misjoinder of defendants in a joint action of
assumpsit cannot be cured either by a nolle pro-
seqiii or by a nonsuit as to some of the defend-
ants. A nonsuit as to some is a nonsuit as to
all, and a verdict returned for some of the
defendants is null and void. Cnmmcrcinl Bank
V. //(/r//n.< ./ III., 4(). R 1()7.
The crown may have sci. fa. against <ine or
against all of the joint and several obligors of a
bond, but the jiroceeding must be against nil or
(iirliiiiii. liiijiiiii V. MfPlii i:<fni, !,")('. P. 17.
\'l. AriATKMF.NT OK AcTION.
riaintifl', a ]pas,«eiigcr in defendant's steamer,
sued defeiiilaiit for not safely carrying him,
whereby he was seriously injured, &c. There
was a second count, charging neglect of defend-
ant's duty in not stopping ;it a wharf and not pro-
viding safe and proper gangways, inconsequence
of which plaiiitill', in landing at .said wharf, was
thrown down and injured, Ac. .Xftcr the com-
mencement fif the action defendant died, .ind
plaintitV entered a suggestion on the record, but
- Held, that tho action died with defendant,
and could not be revived against the executor.
Caiiiinm v. MiUon, 22 C. T. .SSI.
Bankruptcy of sole plaintifl" causes an abate-
ment of a suit. Cameron v. Eaiji'r, 9 L. J. N, S.
363. — Chy. (Jhamb. — Holmestcd, Referee.
Held, iimler !l \'ict., c, ,'1|, that icgi.-.try in
accordance with the .\it was imperative ; and a
deed registered upon a memorial in which tin;
addition of the witness to the dec-d wasoniitteil,
was held fraudulent and void as against a sub-
scfpient mortgagee. Holimm v. Wmlilill, •.'■1
Q. B. :uA.
I See now .'{() Vict. c. 17, (». |
AIiMINISTH.ATluN RoND.
Sie KXF.( TTOBS AMI .VipMIMSTBATOR.S.
APMINISTRATION, I.KTTKRS OF.
•SVp KXECI tors ANI» .\li.MINI,STRAT0R.1.
ADMINISTRATION Ol'.U STMK ACT, 1S7.1.
Held, that under sees. M and (i4 of this Act,
there shoulil be no Couuty Court sitting in
May, 1873. Dabi v. aoMiuji, !» L. .1. N. S. 1<)H.
-V. L. Chamb. -Dalton, ('. C. <l' Z'.— Hichanls,
The word "section" does not necessarily mean
n '. if the divisions of an Act numbered as such,
but may refer, if the context requires it, to any
distinct enactment, of whii ii there may be several
included under one numbering. Consideration
of conflicting clauses in same Act. Application
of the maxim, " expressio unius est exclusin
alteriu.i." //>.
The chief engineer held an ollieer of defeuil-
ants' company under sec. 24. (hdlii/v. Torniih)
Greifand liriice R. W. Co., 10 L. .T. N. S. 4(). -^
Dal'ton, C. C. .(• P.
An aftidavit ffir an order to examine defen Innt
under sec. 29, made by the paitner of iilaiiitift's
attornej Held, sufficient. IJoiiilv. ihnili r^nn,
10 L. J. N S 46. -Kaltoii, C 'c. .(■ P.
8o also Wiwn made by the managing clerk.
Mami/i'r -;. The Creat Wi'-ilirn P. 11'. r,;., Ill
L. .7. N. i. 46— Dalton, C. C. ,c /'.
The words, "action at law," in sec. 21, incliiilc
an interpleader proceeding. Canaila Pi rmmimi
/iuililiini ami Sarimis Sorieli/ v. Forent, 10 L. .1.
N. S. 78. -Dalton, 'C. C. d'P.
VlaintifT sued on a promissory note. Hcfon-
dant was examined under tho Administration "i
Justice Act, and .admitted that his plea of p.\v-
mcnt was false. The plea was struck out, umlcr i
.'{4 Vict. c. 12, 8. 8. (.)., and leave given to sign
linal judgment. MrMaxUr v. ISiatt'u', 10 L. ■!
N. .S. 103.— C. L. Charab. — Dalton, C. C. .0 /'.
In this case the affidavit for an order to a-
•amine under the Administration of .Justice Att |
was mads by the managing clerk of the attorney,
il
ADMINIKTHATION SUIT.
42
nml statc'il, " I '"n f'lmiliar witliiill tlir |iiimimmI
in^!R in tliia miit ;" MrM, that altliniij.'li a
miinaK'"K '''''•''<''* "Hiilavit im niidirii'iit iitiilcr the
utaMitf, "till it' liiiiHt. Mtafi' that hr haM Hotiir
iwirtiiiilar rhar^t' "f thr Hiiit. F,hti-l' n v. ''"•<
;,,->-•., 10 I.. .1. N. S. lOA.-C. I.. Cliaiiili.
Daltnii, ''. ''■ <l' I'-
III a penal ai'tinii ii>;aiiiNt a inaKiNtrati' the
until"' rniiiiri'd t.y < '. S. T, ( '. c I'.'ti, Ktatnl
that till' |ilaintiir iiiti'inlccl lirinxiiin IiIm artioii in
,1111' nl' till' su|M'i'i()r ('(lurts, uliili' the writ \\.\^
issiiril III till' nthiT. Oil all amtlii'atiim to aiiii'iul
iinilir till' . \i I iniiiisi ration of .liiMtii'i' Act: llt'iil,
tliat iimhr thi' Ntatnti' tlii'^<i' I'nnns coiilil not !"■
ihiiartrd I'rniii, ami that il iiPiihl not lie ainciulcil
as if niiTily I'ornial. MiCinni v. Fuliii, l(t I.. •!.
N. S. I0.\- ('. I.. <'liiinil>. Kalton, ' '. f '. a- /'.
Ill this casi' till' fact nf the relator licin^' a
c'Uiiliilatc, or a voter who hail voted or temlered
his Mite, a« it'i|ilired liy see. 1,'tl of .'tli \'ict. c.
(H, «aH oiiiittcd in the relation, Imt \\:\h con-
tuMiil III one of the atlidavitH filed : Held, that
fill' fill! Iieinx idready Kefoie the court, the rela-
lieii I'Hiild lie anieiidi'il iiiidertlu' AdininiMtratioii
(it .Instill' Ai't- A'"/'"" '■'■ '■''. i>'l''>ll>i V. <'/i'nl
/„„, II) !,. .1. N.' S. IO."i. ('. I,. Clianil),
|»;iitiill, ''. ''. .(■ /'.
Till' Ailniiiii.''tration of .Instice Act l.'lli \'iet.
!■. H, (>.,)maylM! contiidered an a Lei^'islative
reciij^iiitiiin of tlu' |irinei|ile which has always
lircvailid ill tlii-i court, that the titnesM of forum
i.H the tCMt iijioii the i|uestiiiii, whethor a suit
liniiiylit ill this court kIioiiIiI lie retained and
ailindiiatid upon here, or transferred to a court
of law. r<illi V. /'i'lrrll, -JO Chy. 4r.t.
AD.Ml.MSTl! ATIt UN SU IT.
I. Al'Pl.KATIO.N KOR.
I. U'Ikii (Iriiiilfil (If Rij'iisfil, -U.
'.'. % BUI Of Or,l, r, ill
X III Coneti of Small hlMntt-t or (.'laiiii.^, 4M.
II. Prai riCE AND ri.EAPINOS.
1. Ptirtint, 44.
'1. I Hill r CdMi-.i, 45.
HI. KVIPKNI K.
1. Proof of Drfi iiiliiiit hfiiiij Ailniiii'itiirn-
lor, 47.
Z OthrCiisi.s, 48.
I\. Costs.
1. To E,i:iciitttr.< anil Trii'^tiC'<, 48.
'1. Ollur Ciisr.s, 50.
\. AliMIMSTKATIflN AD l,ITKM, 51.
VI. jMlSCELI.ANKOtTS C'ASES, 51.
A'll. CuKniTou's .Suit— .SVc Creditor's Srrr.
I. AriM.IIATIoN FOI!.
I. IIVf^H (Irinitiil or RifiLsnl.
The personal representative may lile a bill an
V rrnlilorsimjili/ upon the testator's estate against
a devisee of lands under the will, after the per-
Biiiial estate is exhausted, and obtain a deeree (va
nil ordinary creditor. Tlffanij v. Tiffany, 9
C'hy. 158.
Where the plaintitl had, at the rripip.st of the
inolher and natural guardian of infant lieirH,
advanced money to pay debts of their ancestor
to save the coNtH of Niiits therefor: Meld, that
lie was entitluil to HiiMtain a suit for administra-
tion ax a creditor, (lliiMW Miiii.^iii, I'-MTiy. 77.
Trustees and executors stand in a dill'erent
|>ositioii from creditorN or ceMtiii ijiie truHtent as
to the rij;ht to have the estate adiniiiistereil in
this court, and c'linot, without experiencing
some dilliciilty ill carrying out the trusts or ad-
miiiisteriii^' the estate, lile a liill for that purpose.
foil V. <llonr, Hi Chy. .WJ. See also Mill ill v.
' niir/in , 17 t 'hy. '-7 1.
Where one of the legatees w.i.s absent friini the
iiirisdiction, and the execntor.'i had been unable
to discover him, this w.i.s held asnllicieiitKronnd
for the executors olitaiiiiiig an administration of
theestite. Inn iVmli, /><• v. H'l'i/' , 18 Chy.
48.-..
Allhongh the court cm protect the estate of a
testator by charging the executor with the eost«
of a suit for ailininistratioii iiniit ssarily brought
I iiy him, it will refuse an application foradminia-
I tration made by the executor if no siillieient
ground exist.s for it. linrri/w Hurrii, I!) Chy. 458.
!
i .An application for an administration order waa
! made within a year from the death of the testa-
j tor, by a legatee who claimed to be also a creditor
of the estate, but whose claim, a.s such, had
alw.'iys been disjiiited by the executor.^ and was
only supported by the uncorroborated atlidavit
of the claimant. T'.ie ( 'oiirf, under the cin.'uni-
stances, refused the application with coKts.
Viniiii v. \\; ^il 1,1-1 ,uk; , r.M 'hy. 4t'>l.
All administration oriier applied for against a
person named as executor in the will, but who
had not taken out letters probate, was refused,
there being no duly apjiointed pers'.inal represen-
tative before the court. (See Rowsell r. Morris,
L. \i. 17 Kcj.) : Omraiii v. Wijrkhoft; 10 L. .1. N.
S. 135.- Holmested, Nif ree.
The fact of there being a deficiency of assets
ill an intestate's estate, by which all creditors
become entitled to share pari passu, i.s sufticient
to justify an application by an administrator for
an administration order, notwithstanding that
the estate consists solely of personalty. Swrt-
I iitiiii V. Sin /nam, 10 L. .1. N. S. i;i5.— Chy.
( 'hanib. Strong.
Where, on a motion for an administration
order, it ajipeared that the application was by a
party claiining for the support and maintenance
of the wife and children of the deceased, and the
questions raised were (jubstantially the same as
would be raised had a suit been bronght by the
wife for alimony, the court refused the order,
and directed a bill for the purpose to be filed,
an<l made the costs of the application costs in
the cause, /ii rr FoK'fr and driffith v. Palffrnoii,
20 ('hy. 34.5. See also, Feiiirirkv. FvnwirL; lli.
381 ; li'ooilfclloir V. liannie, lb. 425.
Where a partj', in addition to a declaration of
the true constrnction of a will, is entitled to iisk
as consequential relief the administrucion of the
estate, the case is within general order 538, and
the court will make a decree declaring the proper
construction of the will, without directing the
administration of the estate. Murphy v. Murphy,
20 Chy. 575.
ij
i
i
43
ADMINISTRATION SUIT.
U
2. Bji BUI or Ordn:
AVhere tlie executors are chargeil with miscon-
duct, a bill must be Hlerl ; an order for adminis-
tration cannot he obtained on summary applica-
tion, li'- B.thcofl:'.^ E.^tnfe, S Chy. 400.
The order (1.")) providing for the admini.stra-
tion of the estates without bill, applic.i to simple
case."? onlv a. id undei it i :e C'jurt will not grant
an ordt>" r-cnrnini-'icr special directions to enquire
as to what should 1ic allowed to the applicant
(the widow and a<lniiiiistnitrix) for improvements
made on the property, and for the niainteniince
of infant children. Burri/ v. HrnrJII, 1 Chy.
f'hamb. 248.— .Spnigge.
AVherc a married woman ii|iplieil, as devisee
and legatee, for an ndminisfration order, by mo-
tion, without bill, and it appeared that an award
had been made, professing to determine all mat-
ters between the executur and the legatees, and
it was said that thi' husband and wife had been
parties to the reference, the wife acting therein
through her hii.sband as her agent, wliich they
denied: - Held, that the validity of the awanl
could not bo tried on the motion, and that a bill
must be tiled ; moic es])ecially as other legatees,
not parties to the motion, were interested in
maintaining tlu^ award. XinUd v. EHhitt, 1
Chy. Chanil). .'{■_'().- Mowat.
An adininif^tration order was I'cfiisrd where the
ground.s on which it was claimed were properly
the subject f(n' a bill, ('unii mn v. Munltiniilil,
III i-i Miifiloiiiilil, 2 Cliy. Cliamli. ■_",>.- Spragge. -
The control of the court ci'ascs with the death
of the lunatic, ,i;iil an order for the distribution ,
of a lunatic's est.ite will not be made under pro-
ceedings in lunacy. I'lider such rircuinstances ;
the coinniittcc of a hniatic tonk, under autiiority ;
of the court, ]iinccc(liiigs fur the adniinistration '
of the estate of a deceased buiatic, by applying
for an adniiiii.-tration (irdcr, \\hich was granted ; ■
the proceedings licing directed to be :>s inexpen-
sive as iiossible. A'c Bnll'iinii r, ;> Cliv.' Clianib. '
1290. --Taylor, y,V/''-/''< .
.S. /// llli Cll.lr ij' .Slllllll K.-'ltltls.
The facts, that an estate is small, that no im-
putation is made against the executors, and that
it is nuailvisable to incur legal expenses, are no
answer to a motion by a legatee against the ex-
ecutors, ftir the usual adniinistration order. In
rr Fiilfiiiii r, 1 Chy. Cliainb. '2~^x ^'auKoughnet.
In tlie ease of small estates an administration
suit can only be justilicd where every possible
means of avoidiug the suit liad been exliausted
befoi'c suit lirniight. .\lfAti</ri ir v". I. n /■'/(! iinm;
I'JChy. ]m.
Wherea next friend had tiled a bill for a minor
without having oliserveil this rule, and the suit
did not ajijjcar to have been necessary in tlie
interests of the minor, the next friend was
cliarged with all the costs. ///.
When line of the executors swore that the per-
sonal estate had not I'xceedi'il !;"iO, the cnurt,
before it wotiM make an adniini. tratioii order,
recpiiicd the a)i|plicant tn lile an allidavit stating |
that he liad r.'ascpii to believe, ami did believe, ,
that the proee(!ilings \\(iuld shew a substantial
balance of persdiial estate to lie ilividcd among i
the legatees. Fo.--trr v. I'usi, r, 10 Chy. lO;]. '
The court refused to make a decree for the
administration of an estate, at the instance of a
legatee, whose claim, including interest, amounted
to only S28 ; and that although it was alleged
there were other legacies remaining unpaid,
amounting in the aggregate to a considerable
sum. B<i/iiiMm\: Cjipin, 19 Chy. t)27.
II. Pr.Ai Tier. ANM ri.F.Ar)r.,-o.
1. Pnrfii:<.
In a irditors bill against the devisee.? of a
debtor, it is not indispensable that the heir-at-
law should be a party. />»;/'/ v. PrUMmnn, I
Chy. 1.3.T
The personal representative may tile a bill na
(I cirilitor .slmp.'i/ upon the testator's estate
against a devisee of lands under the will, after
tlie personal estate i.i exhausted, and obtain a
decree as an ordinary creditor. TH)'<nii/ v.
Tifaiii/, !) Chy. ITiS.
In a suit to administer the estate of a testator,
the heir-at-law ought to be a party. Ih.
Rut when the personal representative hied
such a bill against the devisee, alleging that no
lands had descended, as to which the answer was
silent, and the objection was not raised at the
hearing, the ccnirt, under the circumstances,
made a decree in the absence of the heir. //).
The other ereditiMs need not bo made }iartic3
to such a bill, but the heirs-at-law must. Ih.
AVlierc a trustee commits a breach of trust the
person jiarticipating is not a necessary party tn
a suit for the general administration of thotmst
estate. 7V//io(// v. Tlmnijifuni, 'J Chy. 244.
( hie devisee of a trustee again.st whose estate
a suit is brought suliieiently, reprcsentu those
interested in the estate. Hi.
Where the usual decree is ulitaiued by ciue el
ail intestate's next of km fin- adniinistration, tlnj
master is not to make the other next of kin
parties in his otKce, but is to see that all liavu
been served witli an otlicc copj' of the deereu
under the (jtli general order of June, IS'iS, beforu
the reports, ami generally speaking, before liu
proceeds ■with the refereiu'c. h'lti/lix/i v. Liuilkh,
2 Chy. 441.
In such a case the court may dispcnst; with
service of the decree on any of tlie next of kin
who are out of the Province ; and the applici-
tioii for this purpose may be made ex parte. Uk
So, when the decree is for the admini.stratiim
of real estate, all the heirs must be served witli
an otiice cojiy of the decree, Imt are not to lie
made parties or served with the jiroceedings in
the master's othce, though any of them m,iy hv
notice reijuire to bo so served, if they desia
it. Ih.
'I'lie rule is the same wlien some of the next "I
kill or heirs are infants. I h.
On apiilication by a creditor in an administni-
tiiiu suit, for the sale of real estate of the testatnr,
the executors, to mIioiii part of the real estiiti
was devised, were held suliieiently to represent
the parties inten^stiid in the real estate, for t'
purposes of tjie motion ; and the order asked fur |
was granted, with a direction that an ollice ciijiy
of the decree should lie served on each of tk I
44
for the
ice of a
lounted
alleged
unpaid,
iderable
40
ADMTNTSTRAliON SUIT
the
4C
ees of a
! heir-at-
.<(wnn, 1
a lull I"
•'r estate
ill, after
oVjtaiii a
'!//'<"'.'/ ^■•
L tcstatnv,
/).
itivo lileil
ng that no
nswer was
ised at the
imstanccs,
3ir. /''.
adc partica
ist. Ih.
if trust the
ry party tn
if the trust
•244.
[•lidse estate
,eiit;i those
\t\ oin' I 'I
•iitiim, till
i\t of kill
lat all havf
ho dciTfi'
■>')',i, bctoru
bofon; lie
V. hiKjIUh,
pcnse \\itli
next of kill
he applu'^-
parte. /'■•
ninistnitimi
iorved with
re not to In'
cceilings in
loni lu.vy liy
they ilesiiL
the next nl
ailniiuistiii
tlie testatov,
real estiit'
Itt) represent
Itate, for tli.'
Icr a.slu'il fi>r
\\ oiliee edi'V
;ach of the
mrties intei'csted in the real estate uiulei
M-ill. Slii'-in-/ V. Iliiiilii; 14 t'liy. ]'.\-2.
l.iL'i'teis are not necessary paitius difendant
ill an administration .suit. Ilin-n<i,ii w Slmir, •_' ,
Cliy. Ciianili. 44. Mowat,
'I'lif Attorney-denura! is a nceissary dofLiidant
t I a liill ''!'''' *•" adininistir an tstate, and duclaru ;
1. 1.1,111/ \. '
legal y tor ivligioiis jmriKLsi's voul.
'iliiiiil'l'. -Chy. <'lianil). ST. I'IsIlm.
Willie a di'\ isi'o of land suhjeit to a eliaige
uioityagtd the devi.sed [iloperty, the mortgagees
Meielield to lie proper laities to a suit for the
leali/atioii of the eiiarge. (Iiilil:iiiilli v. dulil-
.mitii, 17 Chy. '-'l.'t.
ttn an applieatioii under nrder l.'i uf .June '_'nd,
1851!; Held, that the notiee of iiiotioli must
t:hevv that an allida\ it has lieeii lilid. l,'i llmiiil-
ti.,i. •-' I.. •!. N. ^- 4S. Mowat.
•2. Ollirr ro.sv.v.
riiou a L'l'editor's hill, a receiver of the rents
and piolits of the testator's real estate will uot
he uialited, where the plaintill' ilocs not allege in
his hill, mid clearly iirove tlu' iiisiiliieieiiey of the
iifisoiial estate to pay debts, and does not pray
fur the a|ii)lieation of the realty oi' the rents and
piohts thereof to that object. Snin/ir.i v.
chi-iMh, I (.'liy. i:!7.
Where an order for administration of an estate
is <;raiited upon application of a party interested
in the estate .adverse to the executor, the tlecree
will not direct an enquiry as to wilful neglect
and default. Ildi-n.tnii v. .)[r(!lii'<h(iii, ~ Chy. XU.
But where an executor or administrator applies
; for such order, the account will he directed to be
[taken of what he luus received, or but foi'his wil-
ful default he might have received, /.a/iii rinmd
[v. I.'ilij' rii-ddil, 7 Chy. 584. ^
A testator, after .appointing executors, and ex-
Ipressiiig full contidencu in them, provided "that
[ui case any of the legatees offer obstructions to
Ithe proceedings of uiy said executors in the ful-
Ifilmeiit of the powers hereby conferred," then
Ithat such persons should suffer the penalty of
]•' being debarred of all claims to any part or por-
tion of my estate, under any pretence whatsoever,
1 the same manner as if he, she, or they, hatl
etually pn.'deceased me without issue ; andsu. h
' all he, and are hereby declared to be delf red
eiifrom acciirdingly, any law or pract\-e !>
be contrary notwithstanding" : — Held, iu . i
liiiiihstration suit liy a leg.atee against the
ixecuturd, oil the application of other legatees,
Bade parties in the master's ollice, that an cn-
aii y might pro[ierly be directed, whether any
the legatees had forfeited his or her share
der the above provision. The uriginal decree
t containing such a clause of emjuiry, was
Blinded ill that respect on '.-!otioii, after the inas-
m-'.-- report. J/i'/A /■ v. Mi-Xiuiiihlnn, 9 Chy. 546.
.Where in a suit ag.ainst executors adi "ree was
adc referring it to the master to adniii, liter the
e, the master was Hot reipiired to take any
Count of such portions of the estate as were
*': to trustees to be adi.iiniatered. Cluiiattr v.
tUait, 10 Chy. oTli.
Iiough proceedings in thfc master's otHce
fcy under the geuend order be taken e:; i;;;i U;
against a clefend.ant who h.as .allowed a bill to be
taken jiro coiifesso against him, that mode of
prin^eediiig is irregular when an administration
order has been obtained upon notice tiled with-
out bill. .hirh.-iiiii v. MiiU/irirn, In ri I'llltl-iiDI,
I-.' Chy. 47.
In a .'iuit for the administration of a debtor's
estate uiiih-r an assignment for the benetit of
creditors, creditois wlio conu! in under a decree
may rehear the cause, ami this is the proper
course where tli
effected in that
Mii'/iiJ/iiiii/ V. Iliniiilliiii
■ alteration is such as might be
\\ay by a iiatt^ ..o the caune.
I'JChy. 4i;{.
In IS.V) a motion was made, upon notice, for
an administration order, under the orders of
l.S.'i;}, and no steji since taken. An application
now made in IS.'ii), in ehanil)ers for a direction
that the registrar should draw up the order, was
refused. After such a lapse of time all parties
must be served with notice. //) /•«' Fi>rrivlfi;
Mcmii'ki' v. Fnncntri; I Chy. Chamb. 20. —
Spragge.
A bill was liled praying a declar.ation of the
true construction of a will, and for an adminis-
tration of the estate. The bill was taken yivti
confesso against some of the defendants. At the
hearing, the plaintill' wished to abandon the
prayer for an administration, but one defendant,
who was a legatee, objected, contending he was
entitled to a decree [:ir administration as prayed :
Held, that he was .so entitled. 'i'lim/nii/i v.
/.niiiiii, IT) Chy. 14.").
It is not proper, in a report iu an administra-
tion suit, to append to the report a copy of the
will. MrCiinjtir \\ MrKiinmn, l.'i Chy. .{01.
On application for an adininistratioii order an
amundnient was allowed, where an unimportant
niistako had been made in the name of the intes-
tate, which had misled no one, and the right
person li.ad been served ; and ; ii enlargement to
answer the iiroceedings when amended was
refused. Ji'r Frii'n r {■'r(i'<( r \. Fni.'K /; '2 Chy.
Chamb. 407.— Taylor, Kicrdttrii.
Held, that a suit against an administrator by
a person entitled to a legacy or distributive
share of the estate, cannot he brought before the
expiry of ,'v year after the death of the intestate.
-SAiii'v. I'l'. I'. ;! Chy. Chaiob. 1. -.Spragge.
I'lide ail adininistratioii decree a creditor
ciainied by virtue of a partnership with the to^-
*.or. It was objected that the establishnv it
cr h'l claims involved taking the partnei'ship
iiceo' nts, and they could not he gone in '•• . •
ill'; decree. The master held that the ^'...lui
. ')ul I be entertained, and directed that o thiril
lartuer, who was a otraiiger to the suit, should
')e served with an ollice ciijiy decree, and not.itied
of the procee liny:! to take the partnership
aeeounts. A'/uic v. Klun-, .'! Chv. Chamb. 137.
—Boyd, M<is>. , .
Where an order fvr a.'.ii'iiiiutrn'iou ban been
grantc.l to a devisee v ho ',a: alio a ^.K.i.ior of
the estate to a .;;v>^o , 1111.111111, hi.t did. not atate
that fact will 11 applyiiiii; joi adii.ini jtr..*'on. his
silence as to it w.is i- ,iind< el ;> jj.iiuiid for aus-
taiuiug an order t..,.isferiiiig 'lie C' induct of the
proceedings under tht lofe •. nee to '.iiother party
in<-'j''cstod under tir. 'ii Pen • 1 v. Pvrriii, 3
Chy. Chamb. 4r).'.— Spja^^,"
47
ADMINISTRATION SUIT,
48
■I
No one has a special right to the conduct of
proceedings in the master's office upon a refer-
ence under an administration order, but ceteris
paribus it will be committed to those who have
the greatest interest in conducting thcin pro-
perly and economically. II).
In a suit by a creditor for the administration
of his deceased debtor's estate, any party bene-
licially interested in the estate may apply to stay
proceedings on payment of the creditor's claim
and costs. The right to do so is not confined
to the personal representative. Fittcii v. Dair-
son, 3 Chy. Chamb. 4(jl. — Spragge.
Under the ordinary administration decree in
respect of a testator's real and personal estate
the master may take an account of timber cut
with which the defendants are chargeable.
atewart v. Fletcher, 18 Chy. 21.
A decree, as ilrawn up in an administration
suit, directed the administrator to be charged
with an occupation rent, "and that he should be
allowed the various claims and allowances set up
•and asked for by his answer," the result of
which was the allowance to liim of several sums
which, as against creditors, seemed to be impro-
per, and the assets proved insufficient for pay-
ment of creditors in full. The court at the
hearing on further directions gave liberty to the
creditors who complained of such allowance, to
rehear the cause, in order that the decree might
be varied so as to give them an opportunity of
disputing the chiim, so set up l)y the adminis-
trator, in the uia-stor'n odice. WiUU v. Willis,
I'O Chy. a9(;.
III. Kvii)EN<E.
1. Proof I if Dffniihiiit ln-iiiij Ailiiiiiii-itrator.
Notice of motion for an order to administer
the estate of M., a deceased intestate, having
been served on his widow as administratrix, the
application was refused, there being no evidence
that letters of administration had been gi'anted
to her. //( yv Marahall — Fovhr v. Mar.^finl/,
1 Chy. Chamb. ■_".>. —Spragge.
On an application by a creditor for an admin-
istration order, under order 15, only a certified
copy of the will, shewing the defendant to be
executor, was produced : — Held, that although
strict proof of the claim as required in the
master's otKco is not necessary, prima facie evi-
dence of the applicant having a right to admin-
istration of the estate must be furnished ; and
tlie motion was refused with costs. //( re t'larki,
2 Chy. Chamb. 57.— Taylor, Secreturi/.
In moving for an administration f)rder the
letters of administration should be produceti. He
Israel, 2 Chy. Chamb. 392. — Taylor, Serreliiri/.
But where tlie fact of the defendant being
administrator is not disputed, and the plaintid'
has tiled an affidavit that he is administrator, it
is not necessary to give further evidence of the
fact, or to produce the letters of administration,
or a copy thereof. Rr Bdl—IMI v. HfU, 3 Chy.
Chamb. 307. — Mowat.
Where a bill is tiled against the estate of an
intestate, alleging that letters of administration
have been granted to the defendant, such allcMa-
tion is suthciently established by shewing that
at the hearing of tho case the defendant has
obtained letters of administration, although the
grant thereof may have been made subsequently
to tlie tiling of the bill and the putting in of the
answer, and although the defendant has taken
the objection by way of defence in answer. Tin
Eiliiihiiri/li Lit'f Aiiiironce Co. v. Allen, 19 Chy.
593.
2. (Jlher Ca.i.i.^.
If in an administration suit fraud is charged
in the pleadings, it may be proper for defendants
to examine the plaintiff thereupon in order U
disprove the charge, even though they succeed
in the objection, that a proceeding by bill was
not necessary. McMillan v. McMillan, 8 L. .J.
N. S. 285. --Boyd, Referee.
After notice of motion served for an order to
administer the estate, a commission may be ob-
tained for the examination of witnesses, with a
view of establishing the fact that the party
applying for the order is one of the next of kin
of the intestate. Farrell v. Cruikxhanl-, 1 Chy.
Chamb. 12. -Spragge.
IV. CosT.^.
1. To Exictitor.s and Triisleea.
An executor oi' trustee will sometimes b« |
entitled to his costs in a suit for administration,
notwithstanding lie may have committed a
breach of trust, if no loss is sustained by the
estate by reason of such breach. Wianl v
Oahlr, S Chy. 4.58.
Where the plaintitf charged iniproi. er conduct
against the administratrix, which wa' not sus I
tained in evidence, he was ordered to pay allj
costs otlier than of an ordinary administration j
suit. Ilmliiins v. MrXvil, 9 Cby. 305.
Th(; report in an administration suit, fouiiii!
£1403 chargeable against an e 'cecutor. Of tliiij
sum £1247 was for the price of land, claimed |
and received by the executor, t le testator's son, |
as heir, and his claim to t'.'s had long beeij
acquiesced in by the other parties interested, t
held otherwise in this suit, A'he.^ *his purcha&l
money was declareil to pass under i'i» tfist.itoril
will to the claimant and others as legatees,
sum of t'133, the value of the testati/s chattti
property, left by this executor in the hands oj
the testator's widow, and finally lost, Ic Urf
estate, made up the remainder of the sum cliargecl
to this executor, except a balance of about i'M
Under the circumstances the executor was ail
lowed his costs, as of an administration suit, uui
of the estate ; and was not charged with interefl
on the balance in his hands, which he was rel
quired to i>ay into court within a month, aftdl
deducting therefrom his share of the e.state tl
legatee, lilmii v. Terri/berri/, 12 Chy. 221.
A cretlitor recovered judgment against Li
debtor, who having afterwards dieil intestate, ti
creditor had himself appointed administrator
his estate, and thereupon, without suing i
execution against lands, tiled a bill agaiiist tl
real rejiresentatives of the intestate for rtlf'
under 13 Kliz. : — Held, that the peculiarit
his position iis both creditor and person ul rcpi
sentativo did not entitle him to reli' »' in tl
4'J
oiiiirt, ^
judc,'nic:
\v;iii';iMt
made, 1
incMiivi
tion urdi
their ^•ll^
V. (irii/i(
When
will had
estate, w
alliiued 1
of ;in a(
])aity del'
Ji.-id iiccd
Chy. Chu
^\')lorc
fc '.10 IV
lUh MIIOII
reason \vx
ciiiirt, and
olijcct in
I exucwtor t
I Cd.sts. Sj,,
An excel
Diinistratic
entitled to
;"'•■ 'dstrat
-laini
.'1 < ' ':avi
if fa L-d to
a sn. 1 lia
BJipc; red, j
boiili.> of iu
sJionld |,-;y
SiiUiiuiii, 1()
Wlicic ;i 1
tnislr<' t'n|-;i(
on tln' uroi
wi'rassud, ,1,
jini^ iv
lldtTV.lilli.',
mninnifati
<-' "ill, anci
i'lf ji.iynjcn
line indj\i
I'fiiiiistanci
'«tni (|ni'
til NO ni(i(
ai'iiij; .'IS w;
nvceivcr.
Wli.iv (li,.
I'liiii.-^tr.itii,
'■'• I'l.iini
ni.ilic ,,,
liiili 111. Ii
plillsl liis ,
POIV l||n;i -x
•y "11 dii, I
ei'f fliai-i;, ,|
i( lirnii,.|,|
|7<'ln. •.;7I.
Willi,. III,. ,
ival rst:it,_
I I here \v;i;.
»}■ <li'-' del.t.'
--""iiiislrati,,,,
lar
48
ulant has
hough the
>sequently
J in of tliu
'has taken
wer. Till
I, 19 Chy.
is charged
defenclauta
in order tn
luy succeed
by hill was
Ran, 8 L. J.
an order to
may be ob-
jssea, with a
t the party
> next of kin
hank, 1 Chy.
aiees.
lometimes be |
LUnmistration,
committed a
tained by the j
h. Wkinl V,
iYO\ er conduct
i \va" not sus 1
?ef\ to pay all|
.dministratiou I
305.
ion suit, fouiiJi
lutor. Of tin-'
land, claimM|
testator's 8011, ;
.ad long beet I
interested, tittj
his purchasfi
■^iip t.pstatoni
as ligateea. -iL
i3tatti-'8 chattfll
n the hands f -'
lly losi l-' i"!
;he sum chargetl
of about iS^j
Lecutor was ai|
tration suit, *'l
— ed with iuterti|
lich he waarri
a month, aiti|
• the estatt»i
2 Chy. -^21
jnt against
ed intestate, tl'
administrator
;hout suing
bill against tl
estate for re
le peculiarit,
persoru'i rep'
VJ
ADMINISTRATION SUIT.
50
I'ourt, without lirst suing out execution on his
iuil"n)cut. Hut tlio plca(liiig3 being sutticientto
warrant it. the dceree for adniinistnition was
niailc, with such ^'osts as would have been
inL'ni'rt-'il on taking out the ordinary administra-
tion (inkr, the phuntill' paying to the defendants
their costs of answer ;ind of the hearing. J^njl}/
Y. (li-iiliiuii, IT) Chy. .">17.
Where an executor and trustee named in a
will had (ii-ti'd as such to the advantage of the
estate, w ithont having ]ii'oved the will, he was
alliiwed his costs, as lictwecn jwrty and party,
of an aihninistratiiin suit to which he wa.s a
party defendant, excepting some costs which he
hailneedlessly incurred. Siiii/ri/ v. MrCfin-, '2
C'liv. (hand). •231.-- VanKoughnet.
Where an executor olitaincd the usual order
fi,' ' ,ij. administration of his testator's estate,
aui upon the hearing on further directions no
reason was shewn for invoking the aid of the
I c<iurt, and the guardian for the infants did not
object in any way to the course taken by the
executor the couit refused both parties their
1 costs. Sjiniiijrf v. Chu-hc, 15 Chy. (!()4.
I An executor who olitaius an order for tlie ad-
I ministration of his testator's estate, is not always
{entitled to the costs. An executor to(di out an
|yil" ■listration order for the purjiosc of cstablish-
L-laiin which he made against the estate,
■ .d ( '' ':aving it paid by sale of the realty ; but
he fa ed to prove his chum, and, on the contrary
[a sii, 1 balance was found against him. It
la])pei.red, also, that lie bad not kept proper
[bookn of account as executor: -Held, that he
IBlumld ^,.r," the costs id' the suit. Sul/iniii v.
ISulliridi, I'd Chy. 111.
Wlieri.' a bill was lilc<l against an executor .and
Itnistee foradi linistration, ami prayinga receiver.
Ion the i^rouiid of the executor becoming em-
Ibarrasseil, .and having lately sold a valual)lc farm
eloiigiiig to thi^ estate to his own son at an
Uiiibrvaiii;', without ailvcrtising the same, or
piiiiiiniiiieating with the cestui (jue trust undei'
Itlie will, and of his having taken a inortL'aL'e f
Ithe payment of the (lurchas
uniie individually untl n
birilMnstailces jlistilii-d .d;
'stni (|iie trnst, ll.^
»itli so inueh cd' the ■■ i.st.i
[leariiig as was oc 'onei
k rceeiver. Bill' .. .' ■'., ,.
reference as was incurred in the master's ofTic3
in establishing chiirges which tliey disputed.
S/rir„r/v. Fh'trh, r, 18 Chy. L'l.
nioiR'V 111
age lor
is own
•t. as trust''e and tlie
I '1 on the part of the
c i ,ir was charged
of .iic >iuit iij) to the
oy tile suit being for
1)11, 17 * '.ly. I.">4.
Where the on!\ im|» ' ditlicnlties in the
uliidnistiatioii of aiie.'av, \' eii created by a
lai'iie claim id' the exccotors wiii' h they failed
iii.ike good, and a cl.'.im of their father's
liieli he had made liy their persuasion and
aiiist his own wish, 'uwl the executors hail
y in their ha'ads t lan was reipiired to
ag.'iinst the estate, they
costs of an administratioii
moil
dl ither cliiins
eliai'iied « ith tln;
puri
i»y
►en
nil lii'oiiijjt
|7i'liy. r,\.
U liere the e
ill leal estate
I tliele was
l'.\
a ci
Itm-. Mi-il'ill V. I'oiiiiict
lo rel
list m^^
rrel^gM^/
irit^ ^H^
.; repi^Hl
veciilor had power iindera will to
for \iayui''!!l,,,l' iluldsand legaiic.s,
111 .J chap ncuigh in money to
ly tlie debts, ti '> e.>v.,i, eo i M,), viiig a suit for
buiiist ration iinni .c.isi.ry, rw'iiicd the executor
.inil his c immis:ii(Ui. (I'lalnini v.
i/'-"«, 17 >'i«v. :\\>*
II an administration suit, the executors were
,i:ed with so much of the exiieuses of tbe
4
•J. Ot/iir C(/.*',s-.
Ill ail administration suit it appeared that the
stepfather of one of the children of the deceased,
and who had the care of such, h.ail been sued for
the child's board while at sclioid, his mother
being a creditor of the estate, and neither she
nor her husband having any funds to pay for
such board while there were funds .applicable
thereto : - Hebl, that the steiifather shoulil l)e
allowed the costs of such suit. Mnr.iisv. J'ii/ln/,
•2 Chy. .544.
In jin administration suit the widow of the
testatm' had made a claim for dower, which had
been allowed, and upon an appeal fnmi that
decision the Court of Appeal reversed the judg-
ment of the c(mrt liebiw, in so far as it hail
aUowed the chiim for dower, but gave no direc-
tions as to the piiynieiit of the costs of apjie.al.
The apiiellaiits having paid their own costs of the
appeal, this court upheld the linding of the
master in allowing them such costs. out of the
estate. / /'.
Where uiiiieccssary parties were made to an
administration suit, the court refused to burden
the estate with any of the extra costs thereby
occasioned, liniliji r.t v. Itmliiirx, 13 Chy. 4.')7.
A bill had been ilismisscd, with costs to be
paid to the plaintilt'. Two of the defendants
were administrators, and as such had funds in
their hands to which the ]daiiititF was entitled
as one of the heirs and next of kin of the intes-
tate. The defendants had been un.able to obtain
the costs by li. fa., and tiled a petition asking to
be allowed to retain the funds in the hands of
the administrators :- Held, that the court had
no control over the funds, and tint petition was
dismissed with costs. Il/iirk v. liliifh, I Chy.
Chamb. 3ti0. — Spragge.
Where a idaintill" tiles a bill for an adiniiiistra-
tion decree in a case in which the decree would
have ticeii made on notice, without a bill, he is
not eiititleil to the increased costs thereby
occasioned, .s'l,,-. niijn v. SDri-rciijii, 13 Chy. 559.
Where creditors whose claims in the aggregate
were under §2(M) olitaincd the usual administra-
tion order, .and it was shewn that ' lie value of the
estate including lands was uiuier §800, and
although the real estate which it w.as necessary
to sell to satisfy such claims was encumbered by
moitgagu to an anionnt which together with
these claims exceeded §'200, it was held that the
jdaintitt's ciuild not reckon the mortgage debt for
the pui'iHiscs of this suit, and therefiue th.it the
case was within the jurisdiction of the County
Court and the phiintitFs were refused their costs.
/// ri' Scotl~-llillii.'ri)iijtiin v. S/ii-fii.-t, 15 Chy. GS3.
The next friend of infants tiled a bill, .against
the mother of the infants their guardian ap-
pointed by the .Surrogate Court — and her hus-
band, alleging certain acts of misconduct, which
were not eslablished in evidence ; .and the
accounts t.aken under the decree resuUed in
shewing a balance of .about ?"2'2 in the h.ands of
defendants. The court being of opinion thtit the
suit had been instituted recklessly and without
jiropcr ini|uiry, ordered the next friend of the
51
ADMINISTRATION SUIT.
52
ulrJiitifT!! to pay the costs of the ilefcinlants as
tdtween party and partj'. J/iilrlilnsdii v. Sur-
tjciit, !7 Chy. 8.
Ill a suit liy a ivsidaary legatee for the aihiiin-
iatratiou of an estate tlie jdaintill' represents all
the residuary legatees ; and the otlier resiiluary
legatees are not entitled, as of eonrse, to eiiarge
the general estate witli tlie eosts of appearing l»y
anotlier solieitor in tlie master's ollice. To
entitle them to sneli costs some sullicient reason
must be shewn for tlieir lieing reinvseiited liy a
separate solieitor. ilorlinin v. (lurlium, 17 C'liy.
38(j.
In case a creditor brings an adiniiiistratiou
suit after being informed that there are no assets
applicable to the payment of his elaiiii, if the
iufonnation apjiear to have been substantially
correct, he may have to jiay the costs of thesuit.
The Vitji Bank v. Snilr/im'/, IS Ciiy. IS").
The f.ict that a creditor of an estate has pro-
ceeded at law after a decree for administration
has been obtained, is not sutlieieiit to deprive
him of his costs, eitlier at law o, ' a motion in
this court to restrain his action. '.V Ldini/ni,
ischy. r),m
V. AD.MiMs'nt.vTioN .VI) Lrn;.\;
Where in a creditor's suit, to whose cstati.'
administration ail litem had been taken, the bill
alleged that there were no personal assets, and
the parties interesteil in the real istate had suf-
fered the bill to )m^ tiilviii against them pro con-
fesso, and did not ajjpear at the liuaring, the
court made the usual decice, withnut reciuiring
a general administration to be lirst obtained.
Jjfi/ V. JJti/, 'JChy. I4!>.
The court will not apiioint iin administrator
ad litem of a <leecased party to the suit where
the deceased had a substantial interest in the
suit. The suit must l)e revived. T/h liitiil: nf
Montnolw Wa/larr, K'hy. Chanib. 'Jill. A'aii-
Koughnet.
All order had been made for administration
and accounts taken umler it, ami the master had
made his report, but l)efiire it was liled or con-
liruied the administratrix died. No one could
be found who was w illiiig to administer to the
estate, which was insnlvent. The cdurt theri'fore,
under order itii, a])pointed as administrator ad
litem the person w lio had been guai<lian of the
infant heirs of the intestate, on the applieatiim
for the ailministration (iiiler, he having also l)i'en
solicitor for the administraliix in her lifetime.
AV Tubh,~('„„h V. '/'../.;», I'. It. 10; !»l,. ,1. N.
S. H»I. Klake.
VI. Misii-.i.i.Asr.ors Casts.
In an administration suit the testator's wiih)w
agreed that the real estate sliduid be .sold fiee
from her dower, and tlu! master, iiy his .'eport,
approved of this, but the sale was delayed at the
instance of the creditms in oriiei' fo olitain a
better price ; the widow, thereforii, petitioned fi)r
payment for a small sum tDwards the allowance
that might be made to her in lieu of iKiwer ; the
creditors were too numerous to be all served
with the petition, but many of them, including
the plaintifl', having consented thereto, and there
being no o])position, the court granted what was
prayed. In re T/iowpson — l]!()(i(ir v. J)irkti>ii, I
Chy. Chanib. .'VJ.'I. ,Mowat.
Where a suit for the administration of an
estate is pending in this Court, it is improper for
the Surrogate Judge to interfere by ordering the
allowanceof acommission to trustees orexecutors.
('iiiiiiriiii v. lidltiiin, 15 Chy. -ISlJ.
An administration suit by a person interesteil
to an amount less than .'S'JOO in an estate whicli
considerably exceeded .ii!SOO, and against which
a debt proveil (and the only debt proved) ex-
ceeded that sum, it was : — llehl, not to be wltli-
in the ei|uity jurisdiction of the County Court.
(,' Ji/swil/i v. Oj,Uiiiitli, 17 Chy. LM.3.
Where a testator dies in a foreign country
leaving assets in this province, the court, at the
instance of a legatee, will restrain the withdrawal
of the assets from the jurisdiction, iiotwithstaiul-
ing that there may be creditors of the testator
resident where the testator was domiciled at the
time of his death, anil that tliere are no creditors
resident in this province. Sluwir v. O'nii/, IS
Chy. 41!).
Where a debtor dieit, leaving insullicient per-
sonal assets to pay his liabilities, and his executor
notwithstanding allowed a creditor to recovers
judgment ajainst him by default : — Held, that
the executor, on o))tainiiig an administration
order, was not entitled to an injunction against j
proceeding on the judgment. JJoik r v. A'lws, 111 i
Chy. MM.
The doctrine against double proof applies oulv
when both estates are l)eing administered in
insolvency. A creilitor w ho lias j)roved in iiisil
veiiey upon a promissory note made liy an iiisdl
vent linn, can prove as a creditor in an aduiiiiis-
tration suit against one of the parties deeeasnl
w ho has sej)aratcly endorsed tlie note. J{i- Baku
^B, -I I !/'.■< fliiliii, H Chy. Cham)). 4!M». I'mv,l,|
MiiK/,',:
Infant ehililreii of an intestate olitaineil ai.
administration order against their mother, tik
administratrix, and the master found as iiro|.iti S
to lie allowed for their maintenance a sum t.
meet which tiie personal estate was inadei|iiati
and on further directions a sale was asked ul' tin I
realty to satisfy the sum so allowed. Tlie eniii'i
refused to .Hanetion such a sale, being satislipi
that the suit had been instituted for that |iiir I
po.sc merely, and was an indirect wry of ilipiii.j
what ought to l)c doiK! uiiiler the provisieiiM:
l'2 X'ictoria, and the order of tliis court iiiaJ
to carry that Act into elleet : and .as the ii
furnished only a small part of the inforiiiati>:|
which would neecs.saiily l)e laiil before the iniirj
under tlic Ai^t and Order referri.'d to. F'iiii;\
V. Friiiric/.; •JOChy. :tSI.
Where the court is satislied that the (jutsti^':
of maintenance arises incidentally in a suit, aii
that it was properly instituted in order tn ttj
administration of an estate, and not as an iiiJ:
I'ect nioile of doing what ought to be doiieiiiiili
the provisions of l"2 \'ictoria, and the ordeiv^
this court made to carry out the saiin',
i|Ucstion of maintenance, i)ast as well as fiiti;::|
can pro})erly 1ki dealt witli, inasmuch as a giu
deal of the information reijuired by the hVmM
niid orilers referred to can be evolved in takii
the accounts in such suit ; but where suclia!-!
was instituted by a party asking for niainteiiatJ
out of the corpus of the estate, the court aif
.13
ADVOCATE.
H
I'lieck iipoii sui-'li suits refused to make any
direction as to maintenance. G nod fellow v.
R(inni<\ 20 Cliv. 425. See also [v rr Fo.ilrr rt nl.
V. Pdt'krMii, }l>. 34").
AD.MINI.STKATOR.
Sii' Admini.'^tration Suit— ExKcnoii.^ and
AnMrNISTRATOKS.
ADMIXISTKATOII AD IdTKM.
Src. AUMIMSTltATION SriT.
AI)MII!AI,TV.
I Held, that the great inland lakes of Canada
I arc within tlic admiralty jurisdiction, and ofTonuea
Icoiiinitted on thcni are as though committed on
I the high sca.s ; and therefore any magistrate of
[this jinivince has authority to en(|uirc into
lofTeneos committed on said lakes although in
lAmcrican waters. Nc'/lna v. Sluirin , o 1'. K.
1135. -ChamV).— Wilson.
ADMISSIONS.
'. In CiiiMiNAi, ('asks— .S'(< C'ln.MiNAL Law.
11. In KvinicNri; -,SVc Evidknci;.
111. liv ri,i;AiiiN(:s--.SVc Kvidkxck.
— • —
ADMIT, XOTICK TO.
rRfiirc a party can tax the costs of olitaining
eMMiiiiliUcation of judgment, he must serve
liu iitiici' siiln with a notice to admit under the
bIc I if court, 28 K. T. 1842. The master,
vevcr, thougli he cannot allow such costs
ithimt imtico, &c., may allow the costs of pro-
liirint;aci>]>y of the roll. Cumjir v. MrKirhiih',
C. i,. Ciianil). -J-JO. -Uurns. '
On a notice to admit, no summons can he
I'll nut until tlie ex[iiration of forty-eight
lis fhiin the t'nie siiccilied in the notice for
iiisjicctiou of t!ic documents. Vnni v. Cum-
rl'iu,/, 1 1'. 1!. llO-Chand).— Buras.
war, a minor, jiurchased lauds and huilt thereon,
and paid for tiio i)roporty out of moneys pro-
iluccd hy tilt; joint lalior of himself, his wife,
and the ilaughtcrs ; tiie deed for the property
was taken in the name of the wife, upon the
understanding that sin; should hold the same
for the ))etRlit of herself and husband dur-
ing their lives, and after their decea.se that it
shoidd go to the claugliters. I'>y his will the
hiisliancl declared that lie had no real estate, Imt
desired the wife to direct her executorB to sell
the jiroperty so purchased, and divide the pro-
ceeds het'Aceii his two daughters and a daughter
of his wife liy a former hushand ; — Held, on
appeal, allirniing the decree helow, that the
purchase cimhl not he treated as an .advancement
to the wife ; th.at there was a resulting trust in
favourof the testator; and th.at the trusts in favour
of the daughters, if declared, having Iven so by
jiarol only, were within the Statute of Fr.ands,
and tlierefore void, (iwynu'-, .J,, diss. Ovxii
v. K< ninili/ ( /ii Ajijnn/J, 20('hy. 1()3,
AnULTKHV.
I. I'diii i;rn hi: or DuWKi; ,S<i Dowr.i;.
ill. CriiM. Con. Actions— .SVr lItsnAM> and
WllE.
|III. Ivr.l.lDK I'KOM At.IMDNV .Sii HlSHANI) AM)
WlKK.
ADV.ANCEMIvNT.
To Iniants Sii' Inkant.
|A man hy arrangement with his wife and two
Bglitcrs hy a former marriage, — one of whom
Ai)\"i:i;sK I'o.s.sKssiox.
■Vtf. ClIAMrKUTV AM) MaINTICN ANCK — EjECTMEST
— Li.MiTxiniN OK Actions and Snr.s,
ADVEKTISEMENT.
1. Si;i!vi(K r.v ON AiisENT Dekendants.
1. //( /o/Vc/iw»)V Sililii- Sec Mortoaoe,
2. I Hill r Crf.sv.v— I'l.EADiNu in Equity—
rUACTICE IN EyuiTV.
II. Ok Sale ok Land — Sw Assessment and
Taxes -Execution-— Sale ok Land by
ounEit OK Tin: (.'orur.
Misreidi'.'^eatation in a<lvcrtiscmciit of hand to
be sold, ellcct of. See O.shiinir v. Fnrim r.s anil
Miiliiuiii-n' IhiiliHiiij Siiriili/, ,j Chy. 32(i ; Tlir
('iiiiinlii I'l niiiuii III liii'ililhiij mill tS'iirhnj-'i Sociili/
V. Yuniiij, IS Chy. ."><)(!.
To ell'ect a sale by trustees under the Act
res|iectiiig tla: property of religimis institutions
ill I'pper Canada, it is e.s.sential th.at all the
reiiuiienients of the statute should be complied
with, .and therefore that ttie public notice should
state the terms of the intended sale. In re tlir
Siriiiiit CiDiijriijiitiiiiiiil Vliiircli jiiv/iiiii/ Toronto,
I (.'hy. Chanib. .St!). Mowat ; lii Ihv Bai>tiM
Cliinrli iini/iirlii of SlruiJ'oi-il, 2 Chy. Chainb. 388.
Taylor. SKntnrij.
Where ilefciidant li.ad been served by adver-
tisement, which by an oversight h.ad been
inserted only three times in.ste.a(l of four, on an
application for an order pro eonfesso, it was
ordered that defeiulant be re-advertised tha
proper number of times. I'atrkk v. livtsii, 2 Chy,
Chamb. 4."ia
ADVOCATE.
Sii BaUIU.STEII.
A.FFIDA" IT.
56
I
II.
III.
IV.
V.
AFFIDAVIT.
ArriioRiTV to T.akf,.
I, ('iiiillllU.thiliri::.
(a) K'fii'l of ;>ii'i>rii'h)ii 'if (' mini i <•■■<, ."),").
(I)) A//orii'!/-^ ill llir I'miAi', or tlirir
/^arliii iv, 5(i.
(c) Affiilnvlts sworn Ahronil,'y\\.
(i\) Other Cases, ."iT.
Form of.
1. Iiitiniliihj, ,")7.
"2. X(Uin- of Dnpothvi', ."0.
3. Aili/i/ion, T)!).
4. Contents, CO.
■5. Interlinral'ioiis, 02.
6. J lira I.
(a) Srirral Di'poiienfs, 02.
(b) 0//(./' Ciisis, 02.
((■) /» Affiiltirils In lli)!'l to Bii',1 - Stc
Arrkst.
OkIK r. ('ilPIF.S, 0,"?.
MisrF-.i,i,\N'Eor,-i C.vin;-, Ok
Is P.Miiri II.AI! < 'ask,;.
1. ror All'if/iiii' III - S>
T)nnroR - ArrAiini'
imosiiiNii
Kr.mx.
2. S .'linn ii'i'l'' <''i't Sliii/iifj Proi-iii/iiiiis
on Aifiiril- S I' AiuiiriMTioN ani>
Aw ARK.
.'!. Fi'li' /'rodr'/illijs -Sir .iiUtUSI -J)AII..
4. Com mission to lii/,r I'Jriilrnre—Sei ('om-
MISSIDN TO KXAMINK WiTMXSKS.
o. On Hills «;/■ Sdlr nnd Chnlti'l Mortiio'iis
-Sir lill.T.S OF S.\LE AND ClIATTFI,
MoRT liAliF.S.
0. Of Loss iinilir Pnliri/ — ,SV( Insirancf,.
7. (^>iiitihin;l lhi-lairs--Si< MrNicil'Al, CoR-
PORATF.'NS.
8. //( ()//(';• r'-rs'S -.S' • TllK .Sf.VKRAI,
TiTI.F.s,
I. ArnioiiiTV To I'AHi:.
1. Coniiiiis.iioii'rs.
{a) Elpct if si'jiaruthm of Cuiintirs.
A coinniisHion Avas granted for the Midland
district, -wliichtlu'n included the present county
of Prince I'Idward and tlie united counties of
Frnntenac, Lemiox, and Addington. I'rince
l']dward was afterwards set aside as a scjiaratc
district, the commissioner then heing resi(lentin
the united counties of F., L., and A. : — Held,
that his authority in such united c((unties would
contiiHie. MiAVhirlir v. Corhii/, 4 (,'. I'. 20;{.
A commission to take recognizances of hail,
&c., witliiu the <iore district: — Held not valitl
since 12 Viet., e. 78, in the county of Brant after
its separation from that district. Carlir v.
SuUimu, 4 O. I'. 208.
K. held a commission for taking aflidavits in
the district of Wellington, issued in 1848: —
Held, that lie might act uiid-r it in the county
of Waterloo, where he was living, being part of
the old ili.=!trict, and a junior county disunited
from the union of WCllingtun, Waterloo, and
firey. GUi-k v. I>,iriil.<nn, ir> (,>. B. U'^\.
Held, alliriniugabnvocaso, and dissentiug frnin
Ciirtirx. Siilliniii, 4 ( '. I*. 2'.I.S, tiiut a connnis-
sioner aii|iiiiiited in 1810, for tlic district of (lorn
and Wellington, niiglit alter 12 \'iet., c. 78, and
I I & 1.5 \'ict., c. 5, continue to take allidavita in
(t.alt, formerly witliin tiie (lure di.itrict. I'lnninii
V. McXiinijhhn, 10 Q. R. 11(4.
(b) Aliorui ij: ill III'' r<u'i, iir lin:r I'luincrs,
An atlidavit sworn before tin partner of the
attorney of the party on whose behalf the alK-
davit is made, nannot lie read. Ilmlli y v. //riirns,
I Q. B. 40.".; Whili'v. Pilr/i, (; Q. R 13. See
also, Hulet.f Court, 111, T. T. bSr.O.
Semble, that tiie attorney of tiie rel.itor in a
contested munici[);d election m:iy take the recog-
nizance and allidavit. Ji'i ■liiui i .r ri I. li'iii.<<h II v.
Uorhislir, 12 Q. li. O.'IO.
Allidavits sworn before an attorney who is a
partner of counsel engaged in the cause, but not
otherwise connected tlicrcwitli, may be read.
Wil.h V. Cruii; IOC. 1". 40il.
.\n ailidavit for an attichuhiit in insiilvciiey,
made before the jilaiutill'.s atlnrncy prii.secutiii;^
the attachment . Held, wullicieiit, iiiidor see.
2.") of tlie Insolvent Act of ISIi.'i. IlilHi'ini v.
Mills, ,-) L. .1. N. S. 41. C. C. Hughes.
.'\., 15., and ( '. were jiartriers in Cliancerv,
A., r>., ami I), were paitners at eomnmn law.
An ailidavit tendered by ( '. on an application
intnianeerv, was rejected, it having been swnrn
before!). i)inin v. Mrl.nni, h. ,1. ^'. S. 212.-
ChyChamb. Taylor, Itifrn.
(c) Ajli'/iirils sirorii Alirmul.
[Si r lioiiK.'.'f ]'irl., r. 1.'/, O., ii'liir/i /iroriil'sfir
till' tuL'iii'j if njli'tai'ils nhroiiil for iisr in Onliirin.]
An ailidavit of execution of a cliattid ninrt-
gage, sworn befiu'c the miyoi' of a lurcign town,
is useless. I) Fornsl v. linnnill, lo (^>. !'>. ,")70.
(^niere, wliethcr allidavits sworn before a lirit-
ish consul in the U. S. can be reail in au-i\vt.r
toarule. Binl \. t'oLjir, 17 (^ U. TtlJi;.
Allidavits sworn bcfure the mayor of a city nr
town in the United Kingdem received (ni
motion for a new trial. '/'■ /A y v. k'noirlsun, •.'
I\ U. 27.'). Q. 15.
An ailidavit pur[i:)rting tn bj sworn befcirothi
mayor of a city in Fngland is iii uluiissilile iii
this court, without proof of liis signature aii^i
authority to administer o:iths ; but where tli?
ailidavit is sworn out of haigland it is rcceivaMi.
as evidence here, under the lun)erial Statiitu ill
& 15 Vict., c. !)!(. (I'riiliinn v. MuciiIh rsmi, I
(Jhy. C'hamb. 8o. -Spragge.
Where no commissioner tuider statute for till-
ing allidavits to be used in l'|iper Caiiiuii,
resided nearer than 210 miles from a plaio iiij
Lower Canada, where an atlidavit of service w.i^
to be made, the aliid;ivit was ordered tii k
sworn before one of the ordinary connnissifuicn
for taking allidavits in L. (!. d'oidd v. lliikhin-.
son, 1 Chy. Chamb. 18S. — X'auKougluiet.
nc,
AFFIDAVIT.
.58
ilisunitcd
rldo, jinrl
»l.
itiiig fnmi
;i coiniuis-
ct ol' ( liini
c. 7H, iiii'l
iitlavits ill
iicr (if tliL'
If the alii-
V. Ilinnin,
\. \:\. See
relator in a
3 tlio rc'Cii;;-
l!liiis.h II V.
y who is a
130, hut not
y ho rcail,
iiisolvunoy,
|ii'ii.sL'ciiting
tniMer see.
IlilUmni V.
ghcs.
1 ( 'lianccrv.
oniinon I'lw.
appHcation
liet'n sworn
iN. S. -2^2.--
iroriili .<i\ir
in Oiilario.]
ltd mnrt-
I'i^n town,
(,». li. 370.
ore a IJrit-
iu answer
:5i).
if a city I'r
•ivcil I'll
K iiiiirlsiiil, '1
1 liel'oiv til'.
liiiissiMtj ii,
nature ;iiil
t whiTe til'
.s recL'ivaM'
il Stattit'j Hi
II'dIk f"'-'!!, 1
tute for t.il;-
ler Canaii'i. j
ui a placo ii'
service w.i-
lereil tn 1«
)Uiniissiiim'n|
I V. llitlA'.
liuet.
Atliilavit-s .'^woni lieforc a notary puhlio in the
I'nited States, and " certitieil under his hami
and ntticial neal," can he used under I'fi Vict., e.^
41, on a motion in this Court. Thr Mrirfiiiiitt'
Ku-pir.^i Co. V. Morlov, 15 ('hy. 'J74 ; S. ('. i'
Chy. Chanih. ;?10. -Spraggc.
Sworn hefore a commis.Moncr for taking allid-
davita iu the English Court of (.'iiaueery at
(ilasgow :— Held insufficient. McL'inni v. BdiiI-
If,,), [Why. Chamh. 63. — Taylor— .SVcrr At c//.
(.1) Of/in- ('(!.<■•.<.
Tlie crrtilicatc of a eoniniisaioner for aihnini.s-
tering the oatii of allegiance ifl evidence (after
hi.s death and that of the party taking the oath)
that such oath was aclniinistered. Dm d.
Mi'Firrlaiir v. IAwImiii, l)r;v. V2\^.
Hefcndant.! had gone before one A., who wa.'i
bona tide sniiposed to lie a eonniii.ssioner for the
Coiuity of I'., iiU'l aeknowleilged a recogni-
zance : Held, tiiat they were not estopped
from di.iputing A.'s authority as eoniniissioner.
1/.rr/V(W.f»'' V. All<ni, (i ( '. I'. 4!)(; ; see, also,
JIh'iI v. MrArlhin; 'JKJ. 1'.. LWl.
It K no ohjeetion to the alhdax it of hoiia tide:;
of an assignment of goods that the commissioner
prcipuvd the assignment. A'o' /' v. /'(//, 7 I/. -1.
3:21.'. ('. !-. Chiml), Mraper.
Itennrks as to the practice of UMgistritc! or
( conimi.ssioncrs taking unauthori/cd alliclavits.
J,td-o,i V. A'.'^.-' /. , '.'I! <i. 15. 311. See also Mr/lru:/
V. //<'", •.':> (>'. II. ."03.
'I'lie provision of LVi \"ict., c. '.!, s. 'JS, theCrown
Lands .\ct, that all alliilavits reipiired there-
1 under may he taken hefore "any justice of the
j peace,' only emjiowers a justice to adniinist( r
1 the o.atli ill a place whoro he can act as such
j justice. Iicijiii". V. Alkln.-ioii, 17('. I'. '2',K>.
The siiMc interi)i'et.ition of Ihis .\ct ajiplics to
I coinniissioncrs for taking atlidivits nienlioiied
I therein. Hi.
One of the wilncpses swore to the allidavit
I proving tlie cvccuition of the memorial tif a deed
I before the other witness : -Meld, no ohjeetion.
\J(d>(v. WMhhnKi, 10 Chy. 'M(!.
II. Fou.M <ii',
1. liilUnJiii'j.
(Ill amotion for leave to lili; a criminal infor-
mation ag'iiiist a .1. 1*. the allidavits should not
be intituled as of a suit pending. In re liiiihinl
V. S.-/„.ii,l,/, .( (>. S. 11.
Where a defendant moved for a rule, on an
aliidivit incorrectly intituled as to the cause,
and the plaintill', in sliewiiig cause hy his attor-
ney, intituled his allidavits as didVnidant had
intituled his, stating the proper stylo of the
cause, and shewing that ho was not attorney for
the jilaintiir iu the cause in which the allidavits
Were intituled, defendant s rule was discharged,
there heiiig a fatal variauco if there was oidy
one c.uise, and if there wore two no service
Ibciug proved. It was, however, discharged
"ithoiit costs, as defendant's alHdavits were
tituled iu the same way as the plaintiffs,
licreas they should have been intituled iu the
right cau.=!e, denying the existence of the other.
Tn-r;/ v. M„tlhn,-^, 'W 'I". 3& 4 \'ict. -P. C —
Macaulay.
AVhere all the allidavits in a ciuae, after ver-
<lict, were intituled with an initi.d letter between
the Christian and suruanie of defendant :-
' Held, iKi ohjeetion to an allidavit inadc by
defendant, that the second name was not .5ctout
at length, as the initial might bo nothing more
than a di.^tiiietive letter. K< ndn m y. Allni. T.
T. 4 & 5 Viet.
Qua?ro, whether allidavits to be inado in I'^ng-
laii'l for proof fif debts siieil for in this jirovinec,
ni ido before a suit is eommeneed, can bo read at
; a trial siihseoueiitly had, or if .such allidavit
' must be intituled in tiio cause, tuinlonw FnU<r,
!.-.(>. S. 174..
Tlie addition iiif "plaintill" and "defend uit"
must bo inserted. Urinrn v. Siimnnnd <, I <,>. V>.
[■->S0. r/,.,/; v. /'.'/•/■, -2il 15. OS.
I 'Vii allid nil iiitit;iled ('. D. (tin.' ih.'fen.luit.;) at
riiit of, or, and .\. I'>. (the plaiiitill') is bad.
j Willi, r V. .!/;..■./• ii ill., 10 (,». W. 110: ll'/v';///'
\. ./i nililii/;-, 7 C. i'. I'd; /.I iri.-t v. /!tlir/:ir<i(iif,
'3 I,. .1. 131. C. I., ''h.imli. Kichards.
It is no olijection to an allid i\ it of execution
(if ;i coiiimissioii to Like e\ idencj abroad, th.it
i til' (tontiMctioiH /'///! and Dif/. were u.sed in the
I intituling of it. Friinl: \. Cur.-nn, loi'. 1'. IS').
' Xor til it sii'di .■itlid ivit Wiis intituled i;i the
! C. I'. in-;t,ead of the (,'. Ii. f 'o,,, ,/.»•,'.■ v. Hnr-
rmr. ., |;{ (,>. I!. i;!'.l.
' AVhere in the styh^ of the cause tin' jihiintilT
was eilled "l)avids Ca-:s," but iu the title of
j allidavits ill support of a rule (((./' in the same
: e ISC, "l>avis II. Cass" and "l»avis ll.iwley
Cass": Held, a f tal v.iriance. Hi irir.'iifiiin v.
Co.-., 1 1'. I!. •.",»!. I'. C. Itiehard.s.
.Mlidivits Uli'ler 13 it 14 \'ict. c. ,'i3, s. S."), to
remove, a cause from the I'ivisidii ('oiirt, must
1)0 intituled in the court in ^\]licll the motion is
made, not in tlu^ Mivision ( 'onrt. Snn/l/i v.
yiriii>l/:<, 1 1'. It. ;!."i.">. Clianib. IJobinson.
Qiuere : Wlu'thcr the allidavits were ]iropei'ly
intituled. 'I'/ir <^>iu; n (plaintill') v. Unhni /■'nr/i;/
(defeiiihiiit), on an apiilieation to ipiasli an iinpii-
sition returned to a writ of n rlinniri, Ri ii'nia v.
I'ui-lrii, L'4 (,>. H. 3H4.
Allidavits in (|ui tain actions must show the
character in which [ilaintill' sues. Iluli, rlxon
(j. t. V. Orrliiiril, 4 I'. It. '-•:!. Clianib. A.
Wilson.
.\n ;iliiilavit in KUp)iort of a motion to ijuash a
by-law, not intituled in ;iny court, but sworn
before a eommissioner styling himself "A (Jom-
niissioiier in l>. 1!. and C. 1'. .ice. '\- Held, sulli-
oient. K'lnijhnrn mnl tli<' ('ovpurnfion of tlw Cili/
of Khi'jsliin, '2{\ {). 15. 130. Soo also Fnr.cr itmf
Till .Miinirijinl Cminri! nf tli" Unilril ('onnlhn of
Sliiriiion/, .(■(•., 10 <>. 1>. L'SC.
Piut where there was nothing to shew that it
was sworn before an oHic(r of any court, the
eoniniissioner merely styling himself "A eoni-
niissioner," i^c. : llehl, iiisullieient. //ironn
iiiiil llii- .Miin'irijinl t'oiini-il itj' Ainhir<l'iiiriili, W
(}. I!. 4,"'kS.
Whoro the commissionor designates himself,
"A eommiasioucr iu 13. !{.," &e., it is no objcc-
is'il
m
^ ^ i
il
59
AFFIDAVIT.
fiO
tion that the jiliiitiivit is not intituled in any
Court. Kllnhii v. \\',ill„ii, '2 P. R. 147 <>>. B. '-
See also, M„lln,i v. Shmr, n P. R. 2.">0. Clianil).
Richards; /tuiinr v. liiKhij, lilnck v. Wi'j/i', ")
P. R. 35h'.-('hanil). (luynno.
Aflidavit.-i for an attaL'linicnt a|;.iinHt an ali-
ncondin;.; drlitor are not vitiatcil liy lieing
intitidod hcfoi'o tiie issue of attaehnieril. W'ab ■
Jiilif V Hiiiri, a I*. i{. 77. <'hanil). (Iwynne.
The adidavit of the servici^ of a snl>)iiena ad
reH|iondendiini, diieeted to defendant in an infor-
mation of intrusion, is ])roi)erly intituled in
stylint; the Attorney (ieneral "Informant."
Al/iinir;/ (liiiirnl V. McLiifhIhi, 5 I'. R. (IH. I'.
(:. -A. Wilson.
The iii[)ers and aliidavits u.sed on a motion to
set aside a Ixmd for .soeurity for eosts of appeal
from the Court of Chancery, shoulil be intituled
in that Court. Diiii.ioii v. hiiiifoni, 4 L. .1.
N. S. 45. -Chy. Chamb. -Taylor, Sicntanj.
.Mlidavits need not in their intitnlinL' di.stin-
guiah the i)arties by original and amended bill.
It is sutlieient to describe them as the now parties
to the suit. SdiiurrUlc v. Kn-r, 2 Chy. (!hamb.
154. — VanKoughnct.
.•Mlidavits styled in short form ".\., 15., and
others, jilain tills," and "C., 1)., and otliers, de-
fendants," were heldsnflieient. J)ick(ii v. l/iruii,
2Chy. Chandt. 4!)0. A'anKoughnet. See C/7k//-.<
V. C/'(io/<, 1 ( 'hy. 57.
'2. Xcilf (if l)l jIDIII III.
An allidavit maile for a ea. sa. by a plaintill
who lias two ( 'hristian names, need not state the
second, where his identity suliieiently apjiears
by the atlidavit describing him as the above
plaintill'. I'lrkiiix v. Coiinnl/i/, 4 O. S. "2,
An allidavit of execution of cognovit, made
by "William 1). Haby," signc.l " W. I>. liaby":
-Held, sutheient. Fuliji r v. MfCulltiiii, 1 P.
R. 352. - t!hamb. -Robinson.
It is no objection that tlie second Christian
name of a deponent to an allidavit of the execu-
tion of a chattel mortgage is not written in full,
but tiie initial only given. J)i fornxl v. Khiiik II,
15(>». |{. 370.
II
allidavit on production nude by W. I!.,
not stating any description or additimi, orother-
wi.se showing that he w.ia a Jiarty to the suit,
was ordereil to b ' ' ..■.■.■• . .
3. AddU'wii,
Send)le, under our rule 2 "Will. 1\'., an allidavit
of either jilaintill' or defendant need not state
the deponent's degree, ccrtaiidy not where the
affidavit is sworn in a foreign country. Kirhin
v. Lorkliiirt, 3 <v>. R. 248. See also, 'Li/iikiii v.
n)rlhron,2('. L. Chamb. 108. Draper] Rule
of Court 100, T. T. 1851).
The want of ileponent's addition is no objec-
tion to an atlidavit made for registry of a chattel
mortgage. Brod'ic v. lluttau, Hi i^. W. 207.
" Secretary of the Board of Arts and Manu-
factures ;" — Held, a sufficient ad<lition. yocll
v. I'dl, 7 L. J. 322 ('. L. Chamb. Draper.
The addition of a dejmnent isonly descri]itive,
not an altegatiiru of a fact. I food \. Cruiikrili,
4 I'. R. 27'.>.('iiamb. Draper.
An allidavit should contain the description or
addition of the deponent ; or, if made byajilain-
tiff or defendant, should shew that he is such.
lioiji rs V. ('niiik.<liiiiik, 4 L. .1. N. S. 45. -Chy.
( 'hamb. --Taylor, .SV(-(v Im-ii
\n . , .
ig any description
"lat he w I _, .
)e taken oil' the lile.'i ; but a.i the
omission was a mere slip, the order was mailo
without costs, and leave granted to re-lile thfi
allidavit. //>.
■I. <'iintiiil--i.
.\n allidavit verifying the copy of a [iiper, "tint
it is a true copy as the deponent is infornu^d,
and verily believes," issiillicient. SIkij'iv. J'urr,
2 *). P.. '.is.
Kxtracts from a letter embodied inan allidavit
cannot be noticed ; either tiie whole letter or a
copy shoulil be licfore tlie court, or at Itiast it
slnudd lie sworn that the letter contains notiiing
more relating to the a'tiou. Vini'i/iiiii v. //•(<-,,
8 q. B. 50li.
.An affidavit is not insullicient for not mention-
ingthe papers annexed separately, nor ]iositively
stating to what they are annexed. MrKai/ v.
Ihaniiiil, 2 C. li. Chand). 1. Draper.
A copy of the by-law moved against wa.s
described as iiiiin.riil, but wai not annexed, to
applicant's allidavit : - Meld, no objection. Hi .«> i/
V. Mmi'iciiiiil Viiiniril iif (Inuilliiiiii, II i^. H. 1,")(I.
The answers of a prisoner to interrogatories,
being styled in the cause, and iutitided in the
proper court, were headed, " The answers upn',
oath of," &c., and proceeded thus: "To fm
lirst interrogatory, he saith," &c. 2. "To the
second interrogatory, " itc, not adiling, In- ■■ni'itli.
To the lifteenth interrogatory only the ligures 15
were jirclixed. The jurat stated that dcjionciit
was sworn, ifcc, "and made oath that thi^ fore-
going answers were true, on the 8lh day nf
March, 1851 :" -Held, that the form of tjiu
.uiswers and the jurat \\ere defective ; and ii
sunnnons olitained upon them was dischargnl,
but without prejudice to another ai>iilieatioii.
Add II \: Briiiis,', 1 P. K. 231. - Chandi. -
Richards.
An allidavit for tiie allow.ince of service of an
attachment sluudd state what cllbrts have been
nuide to ellect j>er.sonal service. Sli /ilmi v.
Dciini'', 3 L. J. (i9. -C. I., ('hand.. Richards.
Costs for sujierlluous or irrclev.int matter in
affidavits will not be allowed, and in cxtreniL
eases the judge will disallow costs for tlie wlmlu
alliilavit. ('urti;/ v. /{olillii, 5 h. .1. 225.- ('. L.
Chand). Itichards.
The ])laintiir having Hied many u.^dcss alliili-
vits, containing many repetitions as well as iijli
statements on information and liclicf, a directiim
was given to the master that they should not lio
allowed to the plaintill's on taxation, altlioni;|i
the sunnnons was discharged with eosts. //'»//» r
V. liKrlri/, 1 L. J. N. S. 273. -('. L. Chamb. -
Draper.
It is not necessary, under the 1 12th Rule 'I'. T.
20 Vict., that an alli<lavit to hold to l)ail slmnlil
bo divided into j)aragraphs and iiund)ereil.
m,i-li>j\: Walliin, 2 P. R. 1-17. k'- B.
Attention calleil to Rule of Court 1 12, recpiiring
affidavits to be divided into paragraph?. In it
Park and Park, 24 Q. B, 450.
Gl
AFFIDAVIT.
03
have hceu
■miniiii'n'
AHiil:vvits impeaching the oliavactiT for vcra-
lity 111' a (I'l'iiiit'iit wliuhic allidavit iiad l)ui'ii tiled
iiii'iiiipviiina rule, were rejected. rhiH: r. C/u/,-
n,,lii, '-'t! !.»• I'- l'^^-
\ joint allidavit made by the defoiulaiit and
iiii|, I ) stated ' " " " I'lach fur himself inaketli
uitli and Miiith tliat, itc. ; and tiiat he, tiiisdepo-
ni nt, i^ ni't aware of any adverse claim to, nr
II vuIiitioM 111' -^aid lot." The defendant lia\ inj;
been convicted of (lerjury on this latter alle-
iration ; Meld, that there was neither amliignity
iior diuilit in what eaeli defeiuLvut said, bnt that
cicli in :<id«tance stated that he was not aware
of any adverse claim to or oceupation of said
lot. "/i'.;/i'/'i' V. All-iii.i,iii, 17 C. 1'. •-'!»■").
An aliirmution hy a Quaker as follows: "I,
W. I). 1I-, ef &c., do solemnly, sincerely, ami
truly, declare and aliirm, that I am one of the
>iiciet\ called (^Inakers," and then proceeding
with tiie suhjcct matter of tiie atiidavit, without
any fuitlur alliriiiation ; -llehl, not in compli-
anci' witli the V. S. U. V. e. S'J, s. I. llillhuni
V. .1/;//.. .'i L. .). N. S. -U.— C, t'.— Hughes.
Itcniaiksasto improper and irrelevant exprcs-
siuua in allidavits, and the same censured. Fislicr
V. (//•««, 2 L. .J. N. S. 14. -(.'. I.. Chamb.-J.
\\'}hoii ; JJ(irhl.wii v. dniu'ir, ."> 1'. It. •_'.")8.—
Cluvnib.-- Morrison.
Tlie plaintiff's attorney having stated imper-
timnt anil nrelevant mutter in his aliidavit, ^vas
onlcrcil to pay the costs of tlie application.
Aniinjiiiiutis, 41'. I!. ■_'4'_'. Chamb. Morrison.
See also Ciii-liii v. Holil'iii, "> L. .1. I'L'.'). ('. L.
t'liand). -IlichariLs.
Where the allidavit, on wiiich a motion to
review taxation was groundeii, contained allega-
I tioMS of nii.seoudiiet on the )iart of the solicitor,
j alt(ii,'ctlier unconnected with the dealings be-
I twecntlicsnlicit.iraiul the client, such allegations
I Vere lieM to be scandalous, and were ordered to
ibe struck out of the atiidavits. In /i Filch,
2 Ciiy. rliauib. 'JSS. Spragge.
Alliilavitsilisiiigenuouslydrawn up, « ith a view
I of presenting iuferences and giving colour to
Itlii' transaitiims to wliich they refer, inconsistent
jwith the wlioK' truth, evi'U thougii true so far as
Itliey go, sliiiuld be read with suspicion, and carry
jbiit htllc weight. J!iyiiii( \. Alhn, .') I'. It.
1 4,"!,';. Cliainb. Morrison.
.MiMonduct of magistrate in draw ing up an alll-
Idavit in a case of seduction, inserting tl'o words
Xcr'uiuiii'l connection, insteail of ctiniuf connee-
Itiiiu, stronuly censured : Mclli-'HI v. //((//, '25 ().
IB. :;o;{.
ic court, ma pricier ease, may relax the rule
Irtiiuiring a tli pouent to state his nieans of infor-
Imatiiin ; and wlieie depoiu'iit swore that such a
Idis. Insure Would tend to defeat the cnd.s of jus-
Itiir, tint court dispensed with it. Tin Mii-flnniln
\Utihiii K.iiii-i.<'' Cii. V. Muiliiit, lo Chy. "JTI \ S.
|C'. '.! Cliy. t'lcmib. .'!l!(. Spragge.
An allidavit iiy plaintill's agent, stating that
Be had tile nianagcmeiit of all the plaintill's
biisiiicHs ill this country: Jleld, siillieient to
lluu his source of iniorni;itioii. The expres-
liiiii "owner in fee" hehl to mean the be cticial
viicr. M,'En;i( v. Jiondnii, '2 Chy. C'hamD. :W.
-'rayliir, Sirn htrj.
"). /iitirliiiialloiin.
An interlineation not noted by the commis-
sioner does not necessarily avoid an allidavit.
Lci'inhKj v. Marnhall, T) V. \{. 'iTli. — C'hainb. —
Uultoni C. ('. ,{■ /'. ,■ l,i/.^l,r v. lioiiltoii, .') (.».
11 iV.Vl.
Hut in this court all erasures and interlinea-
tions in allidavits nuist be initialed by the eom-
missioner before whom it is sworn, otherwise
they cannot be re:id. Cri/jjM:ii v. (hiiUuu, '1 Chy.
Chamb. HOt ; McMaithi v. Darl'iifll, •_' Chy.
Chamli. ^1'2. Taylor, Sirri'luri/.
(J. Jurat.
(a) Sirtral Dejioneiilfi.
An allidavit by two persons, not stating dis-
tinctly in the jurat that both were sworn, cannot
bo read. Sicholsdii d. S/jajI'uril v. J{io, ,'J U. ,S.
8.5. See Rule of Court, No. 110.
Hut an amendment will be allowed by the
insertion of their nanicj. Fi^lnr v. Thuijir, 5
(). S. 513.
A jurat stating that two deponents (naming
them) were sworn, is suHicient. Kif/ir v. Ilair-
Ui/. 1 P. K. 1.— P. C. -McLean.
The words "sworn and aHirmed," without
saying whicli of the two deponents swore, and
which atlirnied, and omitting tiie word "seve-
rally," in the atiidavit to a chattel mortgage : —
Held, suttieient. Moi/ir v. Dar'nlsini, 7 C. P.
521.
Semble, that a similar jurat to tin allidavit of
loss reijuired by a tire policy, would be sutlicient.
Mdiiii v. Till' U'i'slirii A.i.iitrinii'i Co., 17 Q. B.
MtO. See also Rii/hui v. Atk-iii.'<u>i, 17 V. P. 295.
It is not necessary in allidavits sworn under a
statute to conform to the teehniealities I'eipiired
by rules of court. .Moi/irw l)iir'ii/.iiiii,~ V. P. 521.
(b) Ollnr C(i.ii:<.
(hnission of the place of taking: — Held, not
fatal. Mi-Lian v. Viuiimiini, Tay. 184.
"Sworn before me at Belleville," (not saying
in irliid ilUt rirt) : - \iv\A suttieient. IliiUiij v.
Wilk'itii, 1 (_!. L. Chamb. 211. -^laeaulay.
rorontu," wit out giving the name
HeKl, sutlicient. Yiutnoti v.
1{. 4(!t>.— Chamb.— Dalton, ('. ('.
.Sworn "at
of a county
Strliirt; 5 P.
,l' I'.
The jurat to an alliihivit on a chattel mortgage
! was as follows : "Sworn before me at the Brant-
ford of in the county of Brantford,
this i:Uh day of October, A. 1>. 18i55 : lieorge
W. Malloeh, a commissioner for taking atiidavits
in the Queen's Heiich, in and for the said county
of Hrant": Held, sullicient. I h For nut v. liuii-
iirll, 15 Q. I'.. ;t70.
To sust:iin a conviction for perjury in an atii-
davit, it is not necessary that the jurat should
contain the place at which the atiidavit is sworn,
for the perjury is committed by the taking of
the oath, and the jurat, so far as that is con-
cerned, is not material, luifinci v. Atkinsou, 17
C. P. 2115.
There was no statement in the allidavit as to
where it had been sworn, either in the jurat or
68
AFFIDAVIT.
04
I i i
elsewhere, exrept the marginal venue, " Canada,
County of Crey, to wit;" 1)Ut the eontents
biioweil tliat it related to laiiilx in that county,
and it was proved tiiat defendant suli.serilied tlie
allidavit: that tlie party i)efori' wlioni it purported
to have lieen nwoiii wa.s a .). I', for tiiat eounty,
aiul had riHided there for some years : tiiat tiie
alHdavit liad l)een leeeived tliroiigii tlie post
otiiee, liy tlie agent of the Crown lands there,
liy wlioMi it was forwarded to the Coniniissioner
of ( 'row II hands ; and that Hulisei|ilently a Jiatelit
issued to tlie party on whose liehalf the alllilavit
had lieeii made: Held, evidence from which
the jury niigiit infer that the allidavit was suorii
in the County of Crey. ///.
When sudrii hy an illiterate person, the oiiiis-
Mion in tlie jurat ot the statement that the
deponent appeared to understand it is fatal.
Miinri' v. ,/iniit:<, Dra. '_'!!.'{. See lliile of Court
11 ;i, 'l\ '['. KS.")(!.
An allidavit of loss under a lire policy « liieh
had no jurat, and was not in the form of an
allidavit : Meld, iiisuliicient. S/iair v. ,S7.
LiiuTiKCc Ciiiiulii Miitiiiil hisiii'iiiiri' Co., II C^).
I'. 7.'t. See also Minni v. 'I'lii Withrn Ai'siiriiin'i'
(■<:, 17 (,l. 15. I!t0.
The jurat may he referred to, to explain the
date of a fact deliosed to in the allidavit.
/>'/■- //,
1(111,
•_' C. L. Ch.inil). lOS.
Ll/IIKUl v.
Draper.
The ailditioii of the words, " a coniniissioner,
&e.," or "a coniniissioner," or "acomr." to
tlu' coiiiiiiissionei-'s signature is suHicieiit ; anil
bciiililc, no addition is necessarv. lliinlirMi)! v.
Jhirjiii; '2Q. H. <.I7 ; l!r<,irii v. /'<//■/•, 2 i). \i. '.18;
J/iir/ilii/ V. liiiiiliiiii, .'t (,». 15. 177; /'(iii'.fiiii v.
//'•■//, 11'. 1!. '-".11. Chauil.. Draper; /In/t v.
.Smith, I I'. I!. :!0!». Chamh. Uicliar.ls.
Rut, Held that the mere sigii.itiire wasiiisiitli-
eient. Hiihrurt v, .\/ iiiiiri/nil ('diiiifi/ n/' liiilfm'il,
8 c. 1'. wr,.
In the auHWiis, on oatii, of a prisoner to inter
rogatories, the jurat stated that the cicpniicnt
was sworn, i*tc., "and made oath that tlu' fore-
going answers iri /v ti iw on this ,SLli dayof March,
18.-.4": Held, had. Aihhi v. l:,;,:i.<r, I I'. I!.
'2:14.- Chamh. itichard.-i.
The jurat of an allidavit :^tatcd tluit it was
.sworn on a day which had not then arrived:
Held, that the alliiL'ivit was a nullity. /// r,
Uohu-huii, r. I', i;. !.•!•_'. I'. C. -Morrison.
"Sworn licfdie at, iVc, omitting the word
)/('•.• Held, siiliiciclit. .\hiiihi V. .UrClidrl.-, '2'>
Q. B. •_'7!l.
Ill allidaxits of cxcculioii of lionds, itc, pro
diiccd for the approval of the Court of < 'iianeery,
it is siiUicieiit to use the form of a jurat gene-
rally u;;cd. /;, Aiisihronk, 4 Chy. lOV.
'i'lie omiMiiiiii, in the jurat, of the name of the
ilepoiiijiit, vitiates the allidavit. J>ii-!.ri/v. I/rriui,
I Chy. <'liaml.. 'JlCi.
Spragge.
HI. Oi'iii'i: CoPiEj.
If oliice cojiies of allidavit:' are demanded, the
liartics tiling tlie attidavits must furnish them ;
and the costs of any dehiy oeeaijioned by hi.s
not doing so falls on the Jiarty in def:iult.
Hurruifi V. Haiiiri/, '2 Chy. Chamh. 18(J. — Van-
Koughnet.
In an action for malicious arrest, i"i examineil
copy of the allidavit on which tlie ai'rest w.is
made, coming from the hands ol the propci
olliccr, and slicu ii to have liecii used m tlie
cause, is sullii'ient to prove tiiat it w:is made hy
defendant. .S'/kc/o/v/ v. Jliir/idmiii, ltd. S, ',W\ •
Fll-.<ir,;i/i/ V. \\;''W,,; T. T. •_• ^; ;! \'ict. ; ll'-Vw.,,,
V. r/,„r/ir, IS (,». !;. 44,'!.
I\". Mlsri;i.i,AM;ois C.v.sks.
Ami ndmeiit of Christian names of plailitill' in
;illid:i,vits. /Awr v. ('(ml,; | (,», II, ."> ; (Irnul \
Ttiiiliii\ '2 {.}. Ii. 407; /liiiiir/iiiiii/) V. Cos.;, I 1',
|{. '•J!)I, -I'. C. -Itiehards.
The I'oiirt will not try matters of f.ict upnn
atlidavits. Where, theivfort', defcnd:ii.t niovnl
to set aside a verdict, hecauHc the notice of tri.il
had not heeii served in tinii', ami the plain
tilt's attoiiu'v swore that ilefciidant's attorn. ',
agreed to take short notice of tiial, which lli,
jilaiiititi "s attorney denied : Held, tliat the v, i
diet must he set aside. Smilli v. A.ih, ,"> (,). 1!, 4!I7,
A ,lndge in Chamhcrs will not //'//the merit
of a ease on allidavits, hut he may juopeiK
receive and consider explanatory allidavits til.,1
in reply, so as to he ahle to exei'eise a discivtimi
on all the matters properly liefore him, ami giim:
relief, if he think the facts hefore him warniiu
it. '/'/«■ /Still/: III' Miiiili-Kil v. Iliirrl<iiii, 4 I'. II
11,'il. -Chamh. Draper.
In an action for goods .sold, the ijuestiou \\,i
the authority of one McA. to hind iltjfeiulaiit
as their agent : Held, that an allidavit made K,
.Me.\,, deserihing the nature of his agency, an
tiled liy defendants on a motion foi' a new tii
in another suit, hrought hy this plaintitl' again
them, \vas clearly adiiiissilile against defeinlaiii
Tliiii/rr v. Slmf, li.'l <.). 15. IS!».
.Mlidavits of the t'xei:iitioii of a clnittid iiini:
gage will not he treated with tiie same ]mlii .
larity as allidavits used in proceedings hcfoiitL
court. J>i Fiirn-il v, Hiuiin/I, ['> {}. I'., .'i;(i
.Miiiin- V. />iirhls,„i, 7 (.'. 1'. r.-_M.
An allidavit of notice to iinuliice is not :i(liiii-
sihie under C. I,. 1'. .Act, IS.'iti, s. I(;7, uiilc-
made hy the plaintili's attorney, or lii:i cKii
/'((/// /-.sj/i v. Miin-Unn, \~ i). 15. KiO.
In ap)ilicalioiin of strict right the I;i\\ will in:
aiiiiinie tli:it :in atfiihivit, m:ide hy " the agtiil |
of a pcrsiJii, is the jirolVssional Toronto agent,
such person, and tlnit such person is ii practi.-:iii.|
attorney. A, ./;- v. /'r-/,//, 4 I'. 1!. •24(!. — 1\ C
.Morrison.
Allichn its cannot he rc:id on a motion wlu-rl
the intention to read atlidavits thereon is
mentioned in the notice of motion. - -/■'«/vj
v. .Mtiilijii, I (;iiy. ;)00. Iviteii.
.■V p:irty cannot use atlidavits not used Ijim!
the Secret:iry, or make a new ease, on ap[ieiil 1p:|
Secretary's order. Bank of Muntnal \. Hi/: f
'J Chy. Chsunh. 1 17. - -VanKoughnet.
Allidavits are admissihle, for some piirpusni
on ail investigation of title between venilor aif
vendee. Where, however, an allidavit
offered to prove tlie loss of a will which li>j
been pro\-ed in a .Snirogate Court in New Yorii
hut h;ul never been registered or proved J
(Jutario, and there was some reason for apiir"
hending that there existed no legal means j
fxainiin;il
iri'i'st «Ms
lie \tYi<\>'\
ImI hi tllr
) m:uli' liy
(). S. :il>l;
I, ; \y<u.„
^>l:iliiliU' ill
; (Irani V.
Clt.-:, 1 !'.
1' I'.iit i\\'"n
ilai.t iiiiivtil
itici^ of trial
thi! l>liiiii
it's iittiiriiiy
1, wliicli tlic
thill tlu' viv
, r)t.>. r.. ■»'.i7.
7/ tho iiiciit,
lay \iiinn'ily
tliilavits lili'il
J a ilincvotiiiii
im, ami grant
liiiii wanuia
,•;.,„/-, 1 1', i:.
Hilustidii Wa-
ll ikfeliilauts
lavit iiiatlo 1')
s agency, an !
for a new tri;ii
aiiitilV again-!
Ht (lutViidaiil .
cliaitt'l iiiiut
same iiaititu
llliM IlL'tlll'l' till
-, t>. I'.. :i;o
i:f 111 it ailuii
1()7, mill
nr lii^i tUil
law will U"'
"tliij agdit 1
I into a,L;i--nt>:J
H a iii'ai.'tisiii.j
motion wlirt.j
thereuu is i
lotion. - /''<!'' ■ I
lot USU'l l)*i|
onapiiuallp:
r,'iil y. H'i!"'
met.
some \m\v^'
cell veniloi- ai|
attklavit v
will wUioli I
t in New Vt
or proved :
ason for aiff
legal means j
I,
II.
111.
IV.
V.
iVI.
ni.
riii.
IX.
AGliEEMEXT.
( I KN KKAI.I.V -.SVc CoNTK.'Vr'r.
(.'oNSilii;i!.\TION FOR— «SVf CONTHACT.
Li'CAi.irv OK - Si-i- CoNrHAcT.
I'AIIOI, KXIM.ANATION OK .SVc KviuF.Nci;.
To AUSIIT E\ IDENCK— .SVf KviDENCi:.
Relatino to Sale oFliooDH— .SVp Sale of
<!ooi)s.
Uelatixo TO Sale ok Lands— .Vec Sale
OK Lands.
To Le.\se— .SVe Landlord and Tenant.
SpECIFU: PERroRMANCE OK, ON Sale of
Lands or Chattels — .SV? Specific
I'kkkor.mance.
Within the Statute of Fhai;us— .See
(.Contract— (iuARANTiE and Indem-
nity Landlord and Tenant — Sale
ok(!()ous Sale of Land.s.
AIR.
I It is a jilaiii eoiiinion law right to have the
" 3 use of the air in its natural unpolluted state,
I an aciiuie.Hcence in its being polluted for any
iml short of twenty years will not bar that
ght. To bar the right within a stated period,
lere imiMt be such encouragement or other act
f the party aitcrwards complaining as to make
T fraud in him to object. Hailnihiir^t v. Voate,
3iy. I3!t.
party had carried on the business of a soap
I candle manufacturer for several years with-
1 any steiis being taken to restrain him, after
(i.)
proof of tl'.o will by th>' purehager, should he be
coiiipi'llel to accept the title, the atliilavit was
liilil ill^,lltlicil■nt evidciict'. /trm/i/ v. IIk/Zs 17
Cliy. •>!"•••
Ill !i pro.icciitioii lor perjury on an allidavit 1
Hwoiii before a justici' of the peace : Held, that
the swearing before tiic justice of the |,eaee, and
tin: taking the oath by dcfcmlant, were made
out '^y proof "f their signatures. linihiii v,
Alkh»nn, 17 (-'. I'. ■.'!!.-..
I The rule in force in lOugland (DaiL I'r. 810)
that a party who has made an atliilavit must
submit to cross-examination upiui it, if reipiired,
Oil notice to his solicitor, before taking any fur-
ther steps in the cause, being founded on a spe-
cial Hiiglisli oriler, has no application in this
I Province, (li'iinl v. Wiiirlii'stci; P. H. 44.
I— t'hy. t'hamb. Hidmested, l{(j'<i-ci;
AFFIRMATION.
.S'e*' Affidavit.
AGENT.
I. riENF.RAI.T.V — See PRINCIPAL AND AoENT.
II. Ok .AiTORNEV— .See AlTORNEV AND SoLI-
( rroR.
aldp:rman.
()()
which a bill was tiled fni' that purpose, on the
griiunil iif nuisance and inconvenience to the
l>arty i umplaining. The court, nndei- the eii'-
cnmstances, nd'usid a nuitiim for an interlocu-
tory injnnctinii, but icsiiveil tile ipiestion of
costs to the healing. //'.
Every one has a right to the airmi his jiiiinises
nncoiitaminated by the iiciiip.ints of other pro-
perty, though those who li\f in a city cannot
insist on tiie complete inimiinity from all inter-
ference whii h they might have in the country.
Hut the oicupaiit of city property eaniiut justify
throwing into the air in ami armind his neigh-
bor's house any impurity which there are known
means of guarding against, i'ln-lirrhihl v. (inn/,
iL'Chy. .S!»!l.
T'he defendant erecteil in the city of Kingston
a planing machine and a circular saw driven by
steam, and was in the habit of burning the pine
shavings and other refuse ; he took no means to
consume or prevent the smoke, and it being
carried to plaintill's premises in snllicient
iiuantities to be a nuisance, the defendant was
decreed to desist from using bis steam engine in
8n(;h a manner as to occasion ilamage or annoy-
ance to the plaintitt from the smoke, /h.
ALBION, TOWNSHIP OF.
Tolls can only be collected under '.) Vict, c. 88,
s. [i'A, on the Vanghaii branch of the AII)ion
Plank Road when the road is maile. I'lii'ina v.
J/iiysl,'Uil, 7 <i. 15. 1».
In this township the lots were (U'iginally sur-
veyed in double fronts ; but the Adjal.a road,
which forms the northern boundary of the town-
ship, cuts lots ;W and III, in the 7tb concession,
diagonally, leaving the eastern halves of these
lots broken, and not corresiioniling with the
front or western halves ; jiiid no po.sts or monu-
ments were placed to mark the angles of the
east halves : Held, in ajipeal, tiiat the side or
division road between lots ;{() and .'fl should not
run direct from one front to the Adjala road in a
direct line, but that the side ro.ad should be
run from each front to the centre of the lots.
Maeaulay, C'.J.('. P., Esten, V.C, S]iragge, V.C,
and Rieharils, .1., diss. Mfl.nclilin v. Dixon,
4 0. P. 307 ; //.. 7L
ALI>ERMAN.
I. .Ii'sthe of the Peace -.S'ee Ju.stices or
THE Peace.
11. Other Matteus KEi.ATiNii to — .S'ee Mu-
nicipal ( 'oRl'ORATIONS.
Held, under the Municipal Act of IStih', as
amended by 31 Vict., e. 30, (•., that an alder-
man is not ex oHicio authorized to act as a justice
of the peace until he has taken the oath of
iiualiticatiou as such, liiii'mn v. Hci/lf, 4 P. R.
25G. -Chamb. Morrison.
A warrant of eouimitinent under 31 Vict., e.
1(>, signed by one qualilied justice of the peace,
and by an alderman who has not taken the
necessary oath, is invaliil to uphold the deten-
tion of a ])risoner confined under it, though it
67
AMKX.
08
I I!
ill
iiiiKlit Im II jii'lili<"iliciii I" .'v I" r«"ii :iitiii'; miiliT
it, ill nil iutiiiii ;i;,',iiii><l liiiii. /''.
(^iiii'ir, li.ivi' tin; iil.li niMii ipf ;i lily, as fX
olliiici jdstiici i«r till! |iiMri', Uliy jlll l; ilictinli
In yi.iiil the citv limit''- A'"/'"" <•'■ ''' '• /•'/<(■■'/'//
V. i;.irl„ h ,; :'[.. .1. H»-'.
ALIAS WJtlTS.
Vm Iai'ii ikin.
AMKN.
1. h'icin III' \iiKss AMI rMi;ii! l>i; < km>-
AM'-> ill l!i:\i. l!-r vii:, (IT.
I I. I.'II.MT III Mill., 71.
III. Ml rr.i.i.Asciii ■ Ca-ks, 71.
IV. Ai;i!i;si- UK, wi i;s Dnr.r Cum iiArrr.n
Ai:i;iiAii .s'l' Ai;i;i>;t.
X . |!|i:lir 111' \\'l|iii\\ '. I.I llnWI.i; Sir
Itiiu i:i,'.
\l. AriliiN UN l''(il:i;ii:-. .1 1 hi: Mi'.S'l' -Sir
,1 1 |ii;Mi:s I'.
I. niiMir 111' Al.n'.N>i AVI) I'lll'll: IH'sri'NIiANI's
111 i;i;u, K-^iATi'.
I'.y l'_' \'ir(., !•. I!I7, .'-. I-. iiliiiiM ail' imw
I'liiilili'il til liiilil rial rstati' in tins l'rii\ iiiii- as
tiilly ami ill'i'itiially as iiatiir.il Imiii :-iilijt'i,'t.s.
Mil mill V. Jliiiiii, 7 thy. 177.
.\ii cstati' li'^ally viMlnt ImI'ihi' I'J N'irt., o.
II»7, will nut 111' takrii away liy it irniii tin.' jms-
si'ssiir, so as |u I'lititln tln' luii'-at-law, thniiyli
an alii'ii. /'•" il. "7',,„„,,,- v. M,i/,,ii< i/, !l (,•. 'l!.
lViI.
A ciMiMyaiiii' til an aliiii is nut vuiil, Imt ho
liiilils I'lir till.' ( 'riiwii, anil it is imt siilliriiiit fur
a iilaiiitill in cii'itiMint lu |ii'ii\i' that ili'lrinlant
rl.iiiiis thruiiy.h an alirii, ami a titli' in hiiiL-ii'lf
w hiili wiiiilil iia\r iiri'ii ^^iiiiil liiit lor ili'lVml.'int's
titlr. /'." il. /rir/,,iril<n,i ". /lirhuii, •_'(>. .S. L'HL'.
A ]irl'siill hiiili ill the I'liiiril Slati'S lii'l'uri' the
n\iiliitiiiii, ami rr--iilriit tlnri' siiirr, is an alii'ii,
ami caiimit in.iintain rji rtniint. />'» <i. I'li/li r-
.■:iiii v. I'liri.i /h„ il. I'lilh i:--iiii V. Jhir'itl, ,"» ().
S. -lltl.
'rhi'ili-l'i'iii r alii'iiat;r I'aiiiiut lii'srt iqiliy tin-
[.'raiitiir .•ii.'ainst tlni ;;i'aiitri' ul' tin- alii'ii, nur
a;;:iinst III!' alii'ii hiiiiMll'. Siii-li a iIi'IViiit must
tir rli'arly iiniviil. h'" il. Mun/nnii/it \. Clin-
liiiiil, (III. S. 117. .Mai aiihiy, •!., iliss.
'I'lic sun uf a wiiiiiMii w hii was a llritisli suli-
joot, Imt wliii was marriiil tu an jilioii nut uf
till.' King's alli';.'iani'r at the tiiiic uf lii'r suii'.s
liirlh, is nut iiililliil iimli'r tlm I'ruvimial
■ talntf '.Mliu. I\'. ill. 21, tu iiiliilit l;iml whirli
li;iil lii'iii !,'raiitril tu his imilliir in this rruvinri'.
/*.» il. Ilnli'iiixiiii V. Cliu-hi, I (,». I'.. :{7.
Aliiii fiiinils irsiiliiii,' in tlii'ir jirujicr iMniiitry
raniiut, miuii a snniniaiy a]i|ilii'atiuii tu tin.' cutirt,
lio ili'iniviil, iimli.r ."> (Im. II., r. ~, uf tin' light tu
an fNi'Littiiiii ayaiiist thr l.uulsuf tln'irik'litur : —
Seuibk', till' alifiiagi' sliuiild lii' ph^aiU'd in bar uf
execiitiim. Wuoil \. ('uiii/ih./l, -.U). 15. •_'(;•».
Si'Vi'ii yi-arM* ri'Miilt'iici.' uf a jiarcnt (ufurfiKiiui)
ill this |ii'uviiii'(> IfiKhtiif smi tn iiiliurit '.Mini.
IN'., c. '-'I, 'I & .1 \ iit. I'. 7, 7 N'ict. o. -VA Ih), il.
rill, Hill, I- V. ■/',.,■.;,•, (I (,). li. '.'Mi.
Ili'lil, niiihr till' i.'iri'iiiiiKt.'im'1'.s statril in thi-,
case, that .luhii Hay, \n liu was liuiii at I'ctiiiit
ill 171!'.', liiiin; a natural limii siiliji'ct, rmilil ii>>t
iusi- his liuhts liy ri'si.liiif,' in a furi'inii I'liiiiitry,
or liy liiililing ulliii' thiii. ; that lif was iiut
aH'i'rtiil liy till' SI riiml rlaiisi- uf till' ti'L'iity ni
I7!M, (i.iiliiniuiil.\ lallril Jay's tnaty,) fur tlmt
I'L'latrs only tu tlmso prisiiiis ivsiiliiig within tin;
jiirisiliiiiiiii uf till' [lusts rili'rri.'il tu in tin.' treaty
at till' tiiiii' >'i tliiir t'vaiilatiuii in I7'.t(i : that lli>
plaintill, his muu, as thr sun uf a natural liuin
Mulijrct, was within I (iiu. II., c. 'Jl, whii.li
applies as will tu l!uinaii ( 'atlmlii's as tu I'luti'..).
taiitij ; ami that In' was Iht'iffiii'i: tiititliil tu
rijcuvL'i'. /'." il. Ihiii \. Ihiiil, 1 1 i,>. II. .•t(;7.
Wlii'i'i' a party uwniiii.; ii'al istali' in iiKin
I'liuntii's than mil', \iilnntarily lift Ipiiir Caiiaila
in liSlL', tu iisiih' in a I'liiiign lunntiy ; IKIil,
that iimlir ."il ( u'u. III., o. ',(, it was nut mrev
Mary tu appuiiit a I'liiiimissiuii tu ('ni|iiii'(j intu tlu:
facts in iiiuri' than uni' lunnts ; ami siith ruiii.
iiiissiiiii liav iii;{ lii'i'ii issiii'il, ami nut traviirsnl
within thr tiimr alluwnl liy law, ami wliiili {
tli'i'lari'il till' jiaity, into wlmsi; mIiiIhh it wa,
issmil tu I'miiiiii', tu 111' an alirii iiiiili'r tlif trrui, ■
uf till' statiiti', all lamis in Ijipi'i' Canatla lii'raiiii
thrrrliy lurlrilril : llilij, also, that the ami .^Inr t
uf tilt' plaintiir, tliriiii;^h wlmni hi' rlaiiiiiil liv ,
di'visi', lii'iii;,', iimli'r tln' I'irriinistani'i's aliuvr- J
nK'iitiiini.'il, ilrrlanil an alien, he was iinalili' l>
liulil laml within the I'luvinee, ami emilil imtj
thiiefure ilevise the same, aiiil that his laiul- !
iipuii ullieo fuiiml lieeaine M'steil in the ('iii«ii,
ir.(//((i'i V. Ailiiw«i,i, IOC. I'. SM.
The ."4 1 leu. III., eh '.I, emu ts that all jh i-,ui..
seiseil uf laml in this I'ruviiiee, w liu hail wilii
drawn intu the I'liiteil .States sinee tlii' 1st :!
■Inly, ISI'.', withiiiit lieense, ur shall ilu sii iliirin.
the war, .shall lie eiiii.>iili'reil aliens Imrn, aiiu
imap.'ilile uf hiildiiiL; land within the i'rmiiM.
The luivermir, iVe., is tu aiithuri/e personal
tlie several distriets uf the l'ru\ inee tu eiii|iiii
and return liy imiiiisitiuii tu the I'uiirt uf Km.
Iie'.ieh the ll.ilues uf smh persuii.", seised uf l:ii;,
in the respee(i\ e distriets, and after .smh IIihIiil
it is eiiaetiil that tlie lands fuiiml tu have l«r;
theirs shall vest in Mis .Majesty : I'riAideil, Ilu
mithin;^ therein shall prevent peisuns iiiteii>ti
j friiin travei'siii;^ the impiisitiuii within uin' Vi.'
I after the limlini;, ur after peaee shuiild lii'i.slairl
i lished. I'.y ."liiCeu. III., eh. I".', estates tk|
: fulind are vested in Cummissiuiiers ; |iruvisiiiiit
' made fur pnlilishing the lands returned, ami i<
I settlement uf all eiaims therelu ; the ( 'uliiliil'l
sinners are direefed tu Sell them; and it.
I enaeti'd that all laml iiii w liieli mi elaiiii shall >.
iiiaile ]iursiiant tu the aet, shall lie taken aLiaiii-j
{ ,'1,11 |ii'rsuns, and tu all intents and piirpuses, ti
J Vested ill the ( 'uiiiiiiissiiiiiers. Tin.' plaiiit.:|
elaimed the laml ill i|Ue.stiiili as devi.see vi •
I \\'., his father, w liu reeeived a Jiatelit fur it -|j
I7'.IS, and died in IS'.','}, in the United .Statr
haviiii; left Niagara, where he had been liviiJ
ill ISI,'!. The deleiiilaiit elaimed thl'ullgli au.f
\i'yaiiee fruin the Cuininissiuiiei'S, and put in j
ciiinmissiun issued in ISIT), under the :>l ''i
III., e. !•. appointing certain persons naiiitii
Cfiiiiiiiissiimers for the Niagara District, ail
ifiviiix t
liad h'liiii
if Nil, tl
pnivi'd I
eoiniiii<:.
mill u.ii
tilU'll uf
nliiili w
iiiis.siiinei
ili'fendaii
.'^nm III I
intiire, a
had not I
lirfiil'e tl
Cie. III.
iiijed fn
..ml that I
the faet I
and evteii
wlliell he
tri't tn wl
as an aliei
Wa:< iliseiiN
in till' stat
ilir'i/ri'ili I,
was liy it
y/i »',//, L'o
N,, a eiti:
I'riiviiire ai
died ill IS.'l
one liiini in
I the other t
Ciiiiveycd tl
I meat : Me
V I'liineyai
'ieii heir t
"lli'i; iiiiti
.id till' plai
I deed. Iiii-i
fiO
ALIKN.
.I'll in tills
;il Uftloit
, Clllllll llllt
■11 oiiuiilry,
O NVIW lli't
• Iriiaty oi
;,) lor "lliilt
Vsitllill till!
II tin; tivaty
ll'i : that tlie
,;illirill liulll
•J I, Willi ll
iH III I'riln-
(Utillill lii
1. II. :{»i7.
tuti' ill ll'"!'
iiiifi- t 'aiiiiili
it'y. IM.I,
in nut iiiM'i-
|uirii iiit'i 111'
III siu'li I'i'i"-
lilt traviTsi'i
, ami wlilrl.
■ihihii it \v:i
llcV till' llTlll
aiiaila lirr;iiii'
t llif ami 't-i
f ciaiimil I')
t:im'i'S aliiAi-
ivas uiiaMi' 1
mil viiiilil li''.
.hat lil« l^iii'l
ill till' CinWl;
f;
iviiw Hi'i" l"iwt'i- til cmniiiv w ln'tlur »aiil \V. ■ ii,ui:il mtlj . |ii< iiiJirl," aii<l |iiii,\ inn [<<v a liu'd-
1 KOMI' iiviT to tlic cnciiiy ilmint,' tlu' war, ami : ti I' "till arrr.i inkIi. 'I'Iic I'mlMSM'nicnt.H
Rii tlit'ii what laml-t hi' w.ih miMiil nf. Iji' i hIiuWiiI lliit it was it'i'i'iviil nii thr I.Mh May,
iliiivi'il alsii an iiii|iiisitiiiii in |im>mania> nf thi.-i j IT'.'T, ami arrant ii'iiMiii^i'mlril mi tlii' Inllnw in«
loiiiinit'liiii. timlin;,' that W. hail ni>\w iivi'r, i ilay. .laiiu'i ri'niaimi! in tin' |iiii\ iiii i' niilll hn
iinil wai Ht'l-ii'il "f rirtaiii lami t<|irrilliil in tim ! ihatli in l.si;t, liavin;.; Imiliin tlir I'linl ini|in.i-
tiiwii "if Nia^'ira, anil nl tli'' laii'l in i|iii'.-itiiin, (imi nim r I.SOI. .Iniiatliaii, in l.sdl. ri'i'iiMil
wlili'li wan ill till' lliiini' Histrlit. 'I'hi' Cmn-
niisiliim'i'n rniiviw''! ill l'**-l t" ""'' ''■• ■""' t'"'
ili'fi'ii'luit rlaiinin^ iimltT him wint into iihh-ii's-
,,i,iii ill I'S'.".'. till' lami iMin;^ thin in a Mtatr nl
intiiri', ami ha'l hcM rvir ninri'. 'I'lii' |«laiiillll
hail mi't Im'l'Ii in thin I'mvimi' fur Iwriity yrars
hcfori' the actiiin: lli'M, I. That l.y the oil
Ci'd, III., f. I-. tl"' I'l'iintlir was I'lraily |>ii'-
. ,|i'il friiin riiiilrstini! the ( 'nniinissiunrrs' titlr,
,,iiil that 111' Ihin'f'ii'i nhl mil ri'invi'r. '_'. 'riiiit
till' furt iif \N'' lii'ln.i; an alli'n waswrll fmiml,
Hiiil I'vtcmlril in its cMi'it to all v.nant lami of
■tthlili hr was si'iscil, thoii^'h imt within tlm ills-
I ;,'ranl of lami In this |ii'ii\ iiici', whlili, ainon;^
oHn'i' lhln;;s, |iiii\ iiiiii that any onu roniiii^
into jiossi ssioii of till' laiiil iilionlil wilhin (wrlvi'
niiiiilhs take tin' oath ol allr^lami' ; lull in I'Sdi
111' wint to live in tin' SI iti' of .New Nork,
wliri'c h" I'liitlniiril till his ilcalli In ISIil. .Inlin
ri'inaini'il in Ihr |irii\ii , ami illi'ii here in
I.St'.'; Ili'lil, I. 'I'hat till' |iilllion w,is ailuiis-
silili' as i'\ iilfiiri', wllhoiit any |iriiiif oi tlii'
si;,'natiiri's. •_'. 'I'hi' ruiiil ln'iii;,' cniiiiiwiTi il to
ilr.iw iiifi'i'i'iii'i's as a jury, that it iiil;,'lit |iro-
|ii'rly liiMiilVri'i'il that thr thri'i' 'nollnrs h.'nl
laki'ii the o.ith of alh ''iaiii'i' ln'f ilu .sonio one
ic o;iili 111 al
tli. f In whii'h till' roniini.ssion issnt'il. Wlu'thcr : iiro|Hrly antlnirl/ril. .'1. 'I'h.it as to .lanu'S, liiii
lis an iilli'ii till' 'h'visc niaih' liy him w.is voiil, ri'inainliii,' In thr riiit.;ii Stalfs so loni^ afti r
was ilini'iisst'il I'litnot ilrriili'il :' Ihil, llrhl, that j I7.S,'! woiiM show his ilcti'i'inlnatioii to ln'i'oni"
lis till' statiilr iliH'lari"! him to lir an alien, ((//i/ 1 an .Anu'ricain'iti/i'ii, in wliieh ease, withmit rel'cr-
lii.'.i/ri'ili III' liiililiiiij liiiiil.i irilliiii till I'l'iiriiiri
wa< liv it ilis'ilileil from ilevisiiif,'. ir«i//i/i'' v.
Jlnnl'l, •-'IM.I. li. H7.
[Si'''.M \'irl.. c. -H, sinre (lassi'il. I
S., a I'iti/en of the Tniteil St.'iti'S, ralne to Ihls
I'riivliii'i' anil lioii^ht tin- I iml in i|mstiiin. He
(linl ill I'H:U, li'.niii;,' four sons, three lioi'iialkns,
(iiir liiiiii in tills I'nivinec. Two of these three,
the iitlier two having ilieil iiiiniarrieil in ISIi.'l,
; convey 111 to the |ilanitiir, who liroii^ht ejeet-
niciit : llelil, that thonf,'h an alien may t'lke
'iV <'nli\i'yanee, lie eannot |iass liy ilesecnt to an
iiL'n heir the lami so taken : that as a eonse-
"ni'e iiothiii;,' p.'issuil from .S. to his two sons ;
.111 the |ilalnlill' therefore took nothiii'^ hv their
|(iciMl. //■"•;» V. Mi-Iiriili (t <il. -SM). 11. .'.'to.
A., .111 .iliouhoniin the United Status, ri'teiveil
iftliitiiit for lami here in I8'2(!, ami in the same
I ye.ir went hai'k to the States, when; he ilu'il in
1 18."..".,
he em.'e to oiir statutes, he. as an alii'n, eoiiM not
transmit the estate ellhrr lo .lohn, tliroM;j
whoni the |il;ilntlll's el.ilniril, or to .lonalhaii ;
Imt til it Miiiler !l ( leo. |\'., I', •_'!. havlii;,' taken
the oath of alle;,M.uire, his ilis.'ililllty w.is reliiovi.'il.
l. That as lo .lonath'Ui, In the .•iliseiiee of any-
thliij.; showing! a |ii'evions intention to lieeoineaii
.Vnierie.'vn eitl/.eii, his eonilni,' to this eountry,
takln;.' 11)1 l.iml, ami takliiL; I Ills oath, .shew eil a
elear ek.'tlon on his part lo lieeome a I'.iltl.sli
sniijeet, anil his retnrn t" the I'liiteil .States
eouM not make hlin the Ir-s one. It w.is held,
thi'refore, that the iilalntill's ease failed, .lima-
than lieln;,' entitled to inherit. Miiii'ij'iiin rii it
III, V. (ii'iiliii III i> III., "\ i), l>. ."i7.
Ill ejei'timnt it .■i|i)M':!reil th.'vt the lil.llntlll's'
aiieestors were allriis ; hul ; II' M, no liar to the
rreovery, I'J N'iet., e. I'.'7, s. !'_', Iiaviiij,' lieuii
iiasNi'd liefnre the aiieestors' death. Ilninrill it
I'l. V
//- ml:
rmm 1 1 III., '2'2 ( '
.Siiiiie of his ehildren were liorii in the i I'ljci'tmeiil.
jStati'.i, siiiiu' here; Imt they all lived there, and
(they all lirimjjht ejeetmeiit: (.hia're, whether
Itlliise will) were aliens eniild reeover under ('.
IS. t'. e. 8, «. !) ; Semlde, that they eoiild,
Ifor that elausu i.s not eonlined to aliens reslih'iit
Ihtie : (,>ii,i'i'e, wliethi!!-, under !Mieo. I\'. e. '21,
[A., Iiaviii;,' olit.'iimd a ]i.itent from the emwii,
jwiiulil he entitled to the heiielit ol that aet,
111 I'S'Ji,
I'SO.
, with Ills son
(who aflerwanls
eanie from the
Sainuel, ,-inil his daiiijliter II.,
marriid M., .a lliitlsli snlijietl
I'lilted States, ;iiid seltli'd ill Canada, all lieing
aliens, (In the 'JOth M.ir.h, IS'JI, the ( 'rowii
granted the land in i|iiestloii to .1. S. Neither
•I. S. nor his ehildren e\er took the oath of allo-
giaiiee. .1. S. died on the 17th May, l.S'.'S, and
Samuel ;ilioilt the litli Noxemlier, KSl'J: Held.
witliimt priiof [hat he had taken the oath ol that under the .Mien , Vet of I fS'.'.S, assented to on
all^'Uiice. I.iiitliiriiiiiii It III. V. Troir, \r,('. I'. ! nm, yi-jy^ ix-js, ,). S. was a I'.rltish siilijeet, for
«''''''• I It niiiiht lie iiri'suiiied that he took the oath
111 ejeetinent holh ji.artles elaliiied through one when he got the |iateiit ; and if not, having died
allies Siiiitli. Tin; defendants claimed umler ! hefore 1st .laiin.iry, liS,")(), the iierlod limited liy
(Hialli.iii, Ills elder lirotlier ; the iilaintill's elaiiii- : tin; .\et for taking such o.illi, he was liy see, I.'!,
'I tliiiiiigh .lohn, his younger lirothcr, eonteiid- , eui[iowereil to take and hold real estate : Held,
jing lliat .Iniiatlian, lieln;; an alien, eonld not i as to Saniiul, that not having t.ikeii the oath
Inilt. .lames, .lonathan, and .lohn, were all umler the Acts of IS'J.S or ISII, hi' was an
111 ill the iiriivlncc of New \'ork, hefore the alien: Held, aho, as to Hannah, that li;iving
I'.ilv of liiilenemlcnce in 178,'{, , lames aliout ! heeii a resident of the I'roviiiee on the 1st .March,
1771', •liiii.itliau two years after, their father lieing i I.S'JS, for seven years, she
I'.rlti
il.
klirillslisiihjeit. .lames and .lonath.an came to I jeet under see. •_', of the ;\et of IS'J.S, .iml als
Ilia in I7'.l'.', ami .lohn in \~\H. A eojiy of a
cliHiiiito the .'Vdministrator of the govennneiit
bf r|i|U'r Canada was ]iroduceil, cortilied liy the
plerk nf tin; l'',.\eeutivc Council, inirporting to lie
■igiii'il hy the three, one lieing a niarksinan,
pfcitlng that they h.ad come into the rrovinec
ibimt four years before, and "bad taken the
ly intermarriage with a llritish suliji;et, under
1-2 Niet. e. I '.17
10; and as eomiiig within
that
•!■ fi, it \'ict., c. 7 ; Seinlile, ]ier Wilson
Samuel, if an alien, would have had tlu; same
|iower to de\ ise as be had to convey liy deed : —
Semlile, also, [ler Wilson, .1., that the alienage
(if J. ,S. could not have been objected to in his
#1
71
ALLLTVION.
T2
ijr
lifetiiiio, i'xi'ci>t l).v till! ( 'niwu, so as to iiffect liis
title, anil not l>.v llio ("mwn unless deceived as
to his status : l^Uii'ie, wlietlicr 12 Vict. c. 197,
s. !'.», Iia-i any ivliv«inii to titles previously
aeiiuired. /I<r\: h:iUult, 32 Q. B. 434.
A deed of land in trust for an alien, (executed
before 12 Vict., c. I!t7,) and mortgages subse-
fjuently created liy the alien : Held, good in
Chancery. Miint'ni v. //< imi, 1 Chy. 177.
II. Ill
ro Vote.
A jior.'^on born in New Vork in 1S30, whose
father, a I'.riti.sh subject, iiad emigrated from
Ireland a short time jireviou.s, and who a year
or two after liis liirth came to this province
when lie was only about two years old, and had
ever since lived liere, is himself a British subject
within the meaning of section 7.") of the Munici-
])il Act, <'. S. V. ('. c. ri4. h'tn'mn rr re/ Mr-
i'((in v. (/riilnnii, 7 L. •!. 12."). - Robinson.
Where alienage is taken a.>4aii objection in pro-
ceedings on a contested municipal election, it
nuist besliewiLi)articiilarly how the parties eom-
jilained of are aliens ; a general aliidavit of the
fact is insullicient. VA ;//;.'/ './■ r</. Carnill. v.
Bi'fk-ifilhildl., I P. \\. 27.S. -Chamb. Robiiisoi,.
An alien ciiiniot be a relator in a (|uo warranto
proceedin;.^ under the Municipal Act. Ifujiiin
fj: Vf'l. Colciiiini V. <>' llnvn -/{I'niiifi i:r ;v/. Pmlirell
V. Stewart, IV. \\. IS, 21. Chamb. Burns.
Where the voter was born in the I'nited States,
both his ]iarcnts lieing British Ihuii sulijects, his
fatiier and grandfather i)eing U. VI. Loyalists,
and the voter hail resided nearly all his life in
Canada: -Held, entitled to vote at an election
for the Legislative Assendily of Ontario. .SVo;--
imnil bifrli.w, Pl'iir-:, ]'<,/r,' 7 L. .1. N. S. 21.3.
— Kichards.
III. .Ml.S(KI,i,..VNE0f.S Ca.^es.
On an application to prevent certificates i)f
naturalization l)eing i.ssued by the Court of
Ceneral Sessions of the Peace, to C. W., ,T. V.,
and B. K., under 31 Viet. c. (id, P., the grounds
of opposition were, I. 'I'hat the time of residence
was not stated in the alHdavit of residence ;
2. That the certificate of the justices of the
peace, read on the first day of the court, did not
siiew that tlie requisite oaths of allegiance had
been taken by tiie applicants. 3. That initial
letters oidy were used in the heading of the aHi-
davits, and not the full names of the applicants.
These objections were overruled, /ii rr W'ett.f'rr
H III., 7 i- J. N. S. 3!).-(i. S.- Anlagh, Co. J.
Held, in interpleader, that the claimant, a
resilient of the I'nited States, having placed t!ic
goods here, would have been personally liable
to the jurisdiction of this court in any (|ueation
concerning them, even if he had not employed
an attorney and made an aliidavit to support his
claim. Ihiffiilo nnd Lah- lliirou It. IT. Co., v.
Hr'uviiiKjiftn/, 22 Q. B. r>t)2.
The prisoner was convicted upon an indict-
ment under C. S. U. C. c. 98, containing three
counts, each charging him as a citizen of the
Unite(i States. He was cliargcd with levying
war, and being in arms against Her Majesty.
The crown rested on the prisoner's statement,
that he w.is born in Ireland, and was a citizen of
the IJniteil States. It was objected that the
duty of allegiance attaching from his birth con-
tinued, and he therefore was not shewn to l>e a
citizen of the I'nited States, but :- Held, tliat
though his rluty as a subject remained, he might
become liable as a citizen of the United States
by being naturalized, of which his own declara-
tion was evidence. Ri'iiiia v. McMahdii, 2t! (,•.
B. I9r).
In this case, the charge being tlie same as the
last, it was shewn that the prisoner had declarcil
himself to be an American citizen since his
arrest, but a witness was called on his behalf
who proved that he was born within the Queen's
allegiance : -Held, that the crown might waive
the right of allegiance and try him as an Ameri-
can citizen, which he claimed to be. The fact
of the invaders coming from the United States
would be prima facie evidence of tiieir being
citizens or subjects thereof. Itnihio, v. Liiin-li,
2(> y. B. 208.
The prisoner being indicted under C. S. U. C,
c. 98, iind charged as a citizen of the Unitoil
States, was acipiitted on provhig himself to hu
a British subject. He was then indicted ,a.s a
subject of Her Majesty, and pleaiied autrefois
acijuit .• — Held, tli it the plea was not proved, fur
that by the L^tatute the oU'ence in the case of a
foreigner and a sul)ject is substantially different,
the evidence, irrespective of national status,
which would convict a foreigner being insufti-
cient as against a subject ; and the prisoner,
therefore, was not in legal peril on the first
indictment. Rrf/iKu v. jlrninilli, 2(! Q. B. ,3.S5.
Qurore, is a foreigner lialile to the insolvent
laws, being neither resident nor doniiciled in
Canada.' Mrl/on v. Mrliull.-i, 27 Q. B. 11)7.
The right at common law of an alien friend in
respect to trade marks stands on the .siinie
ground as that of a subject. Jkirk v. Kciimdii,
13 Chy. f)23.
A foreign administrator cannot efl'ectuiilly
release a mortgage on land in this province.
Payment to him and a release by the heirs are
not sutticient to entitle the owner to a certiticatp
of title free from encumbrances under the .V't
for fjuieting titles. In rr T/iorjir, 1,5 Chy. 76.
Where a person resident in a foreign country
dies pos.sessod of mortgages on land situate in
the province, the Surrogate Court of the county
within which the land lies has juri.sdiction ti
grant administration where the Surrogate Court
of no other county has jurisdiction. Jb.
ALIMONY.
See Husband and AVifr.
ALLEGIANCE.
Sec Alien.
ALLUVION.
See Water and Water Courses.
(3
AMENDMENT AT LAW.
74
ALTERATION.
1, Of Affidavits— ,SVc Affidavit.
H. Of AwARr>--.SV(' Arbitration AS n Awarh.
HI. Ok Bim.s and Notf..s— .S( f Bills of l^x-
( HANOE AND PrOMI.S.'50RV NoTKS.
IV. Of Deed.s— .Vc" Deed.
V. Of Toll Book.s-.SVc MrNHH-Ai, Corpo-
H AT IONS.
VI. Of Record— .SVc Trial.
VIF. Of Will— .SVr Will.
fire
AMENDMENT AT LAW.
I. Of Writs and Retirn.s.
\. Capias, 74.
2. Capiiia ml Rf-ipiwtliuihnn, 74.
3. Capias ail Safisjaririnliini, 74.
4. Wril.tof Siniininiis, 7').
,'). Extcut'ians, 7r>.
(!. Riliiriis III Writs nf E.ririiliim
Sheriff.
II. Addinii or Striking ovt Parties.
1. Plaintiffs, 7(5.
2. IhJ'iitlants, 77.
III. Of Pleadino.s.
1. Cnifrallj/, 78.
2. Varinnrr hetveen Erirhnre nnfl Alkpa-
lions.
(a) /)( Xamcs, 70.
(b) In Statement n/mi/x and yntfs, 80.
(c) hi Statement nf Contrails, 80.
(d) In Statement of Bomh, 82.
(e) In Records and Judrpnents, 82.
(f) Other Cases, 83.
(g) In Artin)is of Defamation — See
Defamation.
3. Adilinij Counts and Pkns, 84.
4. After Jiidf/ment on Demvrrer, 87.
5. OlhfrCasex, 89.
X. Miscellaneous Cases, 07"
.XL Partu tlar Actions.
L Ejirfinent — .SV'' Ejectment.
XII. Sek also the Several Title.--.
[.SV( t/ie Administration if Jnstiro Art of y.S',".?,
s, .'lO, and, C. L. P. Art, s. ,.',.V, irhirh now ijire
ahnn.il iinl'aiitiil /loirirofamindnn nj in ad riisi'.i.]
I. WlUTS and HeTIRN:.
1 . ( 'iipiiis.
A v.ariaiice lietweuu a writ anil cojiy in the
names of the plaintiffs was correutcil hy ameiid-
ing tiie former so as to conform to the latter.
Damer v. Hiislaj-^Blai-k v. Wi'jii, .") P. H. 35(;.—
Chanil). <i Wynne.
Hciil, I. That a C'ljiy of a ea])ias after aetion
should, like the original writ, shew the natnre
of the eanse of actiftn. 2. That in the note at
the foot of the writ, the wonl "calenilar"shonlil
precede the word "months," ami the words,
"including tlie day of such date " should follow
the Words, "from the date hereof." 3. That
such ilefects hoth in the writ and cojiy served,
when produced liy defendant, may be amended
on piymcnt of costs. Ihdihard v. Mihir, 1 L. .1.
N. S."l4. -C. L. Chamb.- J. Wilson.
2. Capias ad lifspondriiihnn.
Amendment allowed in the address, cause of
action, and teste of c.a. re. Mi/rrs v. liathlairn,
Tay. 127.
Refused in a bailable c^. re. Cainphell v.
Iliphiirn. Dra. ,'}.
( In application to set aside an arrest, the
plaintiff was allowed, on payment of costs, to
amend the date of teste in copy served. (I'(7.soh
V. Store;/, 2 P. It. 304; 3 L. J. r>0.— Chamb.—
Hagarty.
3. Ciiitiai lid Satisfaciendum.
^Vhere the emlorsement dircetcil the sheriff
6. Claniijiug Venue — Sie Pleading at | to lake bail for too large a sum, the court
Law.
7. Demiirrers—Sie Pleadinc; at Law.
8. l.enre tnamenrl nn i/rantini/ \cii; Trial
— See New Trial.
[IV. IssfE Books, 90.
V. Nisi Prius Records, 90.
1. In Kji'ctmcnt —Sec Ejectment.
|VI. .IinriMENTS AND Jl'DOMENT ROLLS, 91.
J\\. Verdict AND PosTEA, 93.
III. Incidental Proceeding.s.
1. Affidiirits, 94.
2. Uides, tirili r.i, and Summonses, 94.
3. <tlliir Matter.", 94.
4. Jtefinuce and Awards — Sec Arihtra-
tion and Award.
IX. Pk.vctice,
1. Ti rms un (dlowinij amendment, 95.
2. Otlur Vims, 9C.
allowed it to be ainendeiron payment of costs.
Grantham v. Peters, E. T. 3 A'lct.
Refused where one defendant's Christian mine
was wrong. Allison v. Waijstaff, M. T. 7 Vict.
A ca. sa. omitting to state any sum for which
judgment has been recovered is void, and can-
not be amended after executioiL JJillini/s v.
Rapelje, •: v. I!. 194. P. C. -.lones. 1 1,.' '200.
— 1*. C. -McLean ; Henderson v. Pern/, 3 Cj.
B. '252.
Where defendant was arrestcil on a writ issued
and tested on 3rd January, 1852, and directed
to the sheritr of the united counties of Went-
worth and Ifalton, there being no such oHicer
since 1st .lamiary : Hehl, that though the writ
might l)c amended the copy coulil not. Lyman
V. lirethorn, 2 C. L. Chamb. 108. Draper.
Where a ca. sa. in debt lias been issued on ii
judgment in a-ssumpsit, and not endorsed a«
required by the rule of court, it may be ameiulcd.
Keeftr V. Ilawkij, 1 P. R. 1.
75
AMENDMEN r AT LAW.
Held, under the facts of this case, tliat the plain-
ttft'a had violated the si)ii'itof the law in charging'
defendant in ixeentinn on a ea. Ka. whilst cndea- [
vnuriny to enfmro a renu'dy aj^ainst his lands
thr(inj;Ti an exei'nti<in i.<;;ued siince the oa. sia., 1
and sinee a li. fa. !_' l-i returned iinlla linna. i
An ai)iilieatiiin tn aineml the ea. sa. was there- 1
fore refn.sed : Senilile, tlie irregularities niiyht
on torni.s have lieen amended under ordinary j
cireinnstanee?. ('<in-ii v. 'I'i'i-iki; S L. .1. •_'!)(!. I
A ea. Ha. tested in the name of a retired Chief \
.lustiee i.-; an irre,!,'ularity only, and may lie I
anicndeil. A'l '..o» v. A'"//, .'i I'. It. •_'•_'(). |
-I. H'/v'i' .■ (;/' Si'iinihin :
A writ of suuimons was is-;uid in the eonnnon
form, for a defendant residing' within the juris-
dietion, and persDnaliy served in a forei^'u
country ou the defendant, a liritish sulijeet. On
an aindii'alion to set aside the writ, it a|>|iearin,:;
that th(! time alloweil for a|i|iearan<'e vas a
reasonalile time, an aniendmenl was allowed
without costs, l)^y the suI)stitution of the form of
a sunnu'ins for a defendant without tlie jurisdii'-
tion, in lien of tin; form used. dra'/ v. O'A'.//,
7 1,. .1. IS.S. ('. I,. Ciiandi. Kohinson.
Where a plaintill' olitains an order to aiiiend
his writ of suiinnon--. the defendant is entitled
to notice of the aniendnu'Mt liavini; iieen made,
anil jirolialiiy to a copy of tlie amended ]>roeeed-
inys, before he can lie n'i|nired to aiip'/ar ; and
the |plaiiitiir is not hound to amend, hut may i
abandon his order, ('itni/i'n // y, I'lllil, '1 I,. .1.
X. S. -Jll. ('. I,. Ciiaml.. A. Wilson.
A writ of summons may, afti'r its issue, am!
before service, be amended on jira'cipi^ by sub-
stituting a new iilainlilV, witiioutan orih'r, and
on such amendment there is no necessity for
resealin,^', nor need it a[i]iear on the cojiy servi d
that any aniendmenl has liecnmadc. \\'iiiiliin;i-
lon V. 'Ufiiil/dii, (i I'. It. <i8. ('. I,. Cliuub. '
Dalton, ('. C. .I' /'., Morri.son.
."). E.I- riiliii:i <, 1
,\ li. fa. ui ly be amended so as t i r.'late t:i the j
day of entering the judgment. Ain/rim v. I
Original li. fa. amended by nulviii; il, a tes-
tatum, and new original allowed to be sued j
out. Fi^/in- y. Ilru<,h, -Mt.S. WX i
Ki. f.i. lands annmded after sah^ under it. ,
I'll iiiiii'i y. h'nriilnr.i II/' H'/Wv'/kd/;, T. 'V. I &. '2
Viet.
To snp|i'irt a sale of l.mils under a li. fa., tlu^
writ nnist corrcsponil with tiie judgment ; but
the amendment thereof, even after sale, will
euro the defect. Ililm.y. I'mashi, 17 ('. i'. I."i(i.
On a jud'.;mcnt in assumjisil ;i li. fa, was issued
in delit and afterwards annndeil by rule of
court. I'lefore tiie amendment the slierill' had
sold the land and given a (bed, nmler whieji the
jilaintiir elainu^d. It was olijeeticl that the sale
was void, having been made under an eri'oncous
writ, but: Held, llu' olijection eoidd not be
entert.aini'il. /A» d. h'liii-dii/ v. .)trh'i ir.ii , '.) I).
11. :m",».
A li. fa. directed to no omj i.i void, and cannot
1)0 amended. H'oor/ v. Ciiiiijiln /I, 'A (.}. U. •J(i!).
An exoeution against the goods of a, dejiuty
shcritt' may bo directed to the shorilf of the
cfiunty in which the deputy resides, and ought
mit to be directed to a enroner of that county.
in Ruch a car,e plaintilt was allowed to with-
draw hi.j writ of execution, and amend by
directing it to the .slierill' and not to the coronor.
(Ini-'lnii V. Il'iiiirr, (I L. .1. IfJ. ('. L. Chamb. -
McLean.
The .st.ilenu'ut in a li. fa. landfi of the tnir-
anitnnit of del)t and co.st.s wa."! ameiuled (ni
plaintill's" a]iplicalion on p.aynient of co.^t.s, and a
similar anicndnnnt was allowed in a ven. ex.
lands and II. fa. residue. W'lills v. l/illlr- Wn'ii
V. I, nil, 11 {\ I,. ,1. -IX]. -V. li. (llianib. -Hobin.iiii.
I'i. fa. amended, together with judgment nijl,
bv making; it to levy of delendant'sgood.s innteiil
of testitnr'.s. I'unlh- v. Wiihmii, :t P. I!. iV.
<'. I'.
One of the defendants, Kliiiniiil M., correcth-
styled ill the iiuinuMins, was by mistake naiii"'!
ill the judgment roll and execution as A'/km,-,/
M. : lli'lil, amendable. MrKi ir.ii \ ' Xini.jl.
tun, ,'! P. It. ,'{."i. ('hamb. Pobinso,
.\iiiendincnt of an alias li. fa. lands isoncil \
without autiiority, refusi'd, it apjiearing that lii'-
fort' arijiinu'lit the original writ hail been retiinieil
and tiled, and that nothing had boon made tlieri;- j
under, iicM- any levy made. SiiiUli w Siu'ilh, \\
P. I'. .'i."»l. ( 'Ii;inili. (Iwyniie.
Tlie Veil. ex. reeited a .seizure of goods uiiiltrl
a li. fa. Ian<ls, and commanded tho shcrill' to sill
lands: Held, clearly amendable. C/ianili' i:i\
/>ni/„r, :>.'.) t). ]). iV.I'J.
••^er, als,., Xicholls v. Xicholls, .•} P. i;. 20!. j
p. :i:!.
li. AiUHNil (il; .STKIKINil (llT P.VKTli; .
1. I'fiiiiilijik
Where in assumpsit the wife of tlie pl;iiiit::|
was iniproperly joined i-lfold, (before tliii
L. P. .Vet,) that the jmlge at the trial couM n
strike out her name. ItUrhiiiiillrr v. l.'li<iiiii'i
10<,>. P.. til'-'.
Held, that the ( '. I,. P. .Vet, IS.")!!, (hicsiK]
authorize the striking out all the ))lainti(1's' iiiiii-:
ill a siimiiKms in ejectment, and siibstitutiii.
new set therefor, after the entry of the ri ir
for trial, /inhiiis-ui y. lii II — Viitlhlnili r v. I'y'.
!)t'. P. -Jl.
Plaintill' caused di'fcndant to be arrcsteij !■■;
tlii^ alleged sc<liictioii of his steii-ilaugliter, ;
at the time of tlu^ allegeil .seduction not lieiii.';|
his service. Afterwards ]h\ jiiiplied to inn"
his declaration by joining his wife, striking' i
the atlegjition tli:it the girl seduced wasi:!
d.mghter of the plaintill', and snbstitiitiii:!;
stateMii'iit that she was the daiigliLer of tliiin'!
The application w.is refused. I.mi-snii v. .lA/i |
limit, !l !,. ,1. •!."». ('. L. Ch.unb. l»iM|i(r.
Of « rit of summon, by substituting uew|
till'. \\'nrl/lil,;llnll V. /lii((l/(ill, (I P. II. (iS.
('hamb. Maltoii, C < '. .(■ /'., .Morri.son,
Two of the pl.iintill's contracted under m
do certain work, which was done by tin: tb
but not accoriling to tin- agreement. Tlio tt'j
having sued wore nonsuitod on produetinun
1^
AMElsfoMRNT AT LAW.
contract. The nonsuit was uiihclil, ami an
lunendment i'y striking out tlie name of tile '
tliinl iilaintill', in onler to wave tlic Statute ot\
I imitations, was refused. Ilr'iib r < / al. v.
.i /„v //,-'.•( g. li. -isi. ;
Held, on the authority of Blake c. Done, 7 If. j
& N. -tti"'. that a judge at nisi jirius has ))o^^er
under see. '_'-- < '• ''• •'• Aet, toaniend by adding
parties, wliere sueli ainendineiit is necessary for
li.e iiuriHise of lU'terndning tiie re.il (|uestion in .
cniitriiversy : Held, also, that tlie guanlian of
an infant, aiiliointed under ( '. S. l'. ( '. 7 t, eau
inuler ><. "> consent to thi^ nanu.' of the iid'ant
liiini: so added as jihiintitl' in an action of eject-
nient wiiieli seems to be for tlie lattcM-'s liein-lit.
Name <if jjenson inijuojierly maih' a jdaintili'
by a solicitor struck out, ami solicitor ordered
I to pay the costs. Ml//' r v. /////, 4 1-. ,1. X. S. 7S.
1 v. was added as a ])laintiir at tin; trial in ejeit-
I jiH-nt, ilefendant objecting that this could mit be .
I done in I''. 's absence, and without his consent in
I ^vritinj;, but I'', was afterwards examined as a
1 witness and no (|Uestions askeil as to hisi'onsent :
I- Uclil, that tlu! objection could not be enti'r-
It.iined in term. Ilrni/rr.-<iiii it a/, v. 117//'.'., L','! j
Ic. I'. 7H. :
I Where the idaintills kiu'<1 in their individual
Inanies, describing theniseltes as trustees of the
iMetliodist Wesleyan ( 'hureh, I'rnssels, an aniend-
Inu'nt was allowed at the trial by striking out the ;
Iniiiiiert, and allowing them to sue as a eoriiora- 1
Itioii, incorjiorated umler ('. S. I'. ('., e. (i!) ; !
Illeiil, that the anu'mlnu'jit was authori/ed. ,
\TI(f Tnixl" ■■<<'/ l/ii' Aiii/ri/ri//f ('iiiKiri ijiiliiui nf l/ic \
'\y,slii!iiil Mil/iiii/i"! <'/iiirrli ill CdiKI'/ti \- . ( I ri ir, i; \
'3,0 t'. 1'., not yet rejiorted.
78
'1. i)i'j'i-iii/iiiii,<.
WJKi'e the iilaintifl" had declared against
eviiul defendants, and only one had been
erved, the others were allowed to be struck out
the declaration. Xnri/-. v. Ilniinr, M. T. 1
The plaintiir obtained a vi'rdiet against two
Liidants as partners, which «as set asiile
eeaiwe partnership was nut )>i'oved. 'I'lie jdain-
dfl' tlicn aiiplied to strikti out the nauH' of one
' the (hfciiilants : Held, that the anuiidnient
ttif-'iit he made, « itli e<ists to the defendant
niik nut, as ujion a nolle prosequi.' Held,
that the defemlant might plead de novo,
ithoiit swearing to his defence, within two
tys lifter the amendment and payment of costs.
't)Hv/(//i/ V. KiiMirmi,/ il !(/., I ('. I,. ( 'liandi. (!,'{.
imaulay.
All action on contract having been refeired at
si piiiis, and the arbitrator liiving found that
ifihilants were not eo-partinrs, the court re-
Btii to strike out the name of one defendant.
ll/AW, V. IIV//.S-,/ .(/.,«('. I'. ;{!H,
I The statute, ( '. L. 1'. Act, IH.".!!, was int.'nde.l
iiiict the ease of a defendant erroneously
auii, nut a ease where lie has been joined inteii-
Hiully, to try and llx him with liability. ///.
Ill a.i«iinipsit against joint contractors it
jltill necessary to prove a joint eontraet by all
M 'letciidants. Hocliiir. v. S/nur it ((/., 8 V.
The plaintids sued defendants TI., M., k S., as
joint makers of a note. IF. and M. did not
aiijiear, and judgment was signed by mistaku
against all, but set aside as against S., who
pleailecl : Held, tiiat an application to strike (Uit
the names of H. k M. from the reeonl, so that
they might be called as witnesses for S., was
|iro|iei'ly refused. Ki rr 1 1 ii/. \. Ili ri I'uri/ it a/.,
17 •.». I';, i.'is.
'Two ilelindants sued on the eomniou counts
joined in a plea of never indelited. After the
record had been entered for trial, their attorney
tidd the attoiiK-'y for till! jdaintilt' that the defen-
dants were not jointly lialde, but that one was,
ami the plaintitl "s attorney thereupon entered a
nolle prosei|ui on the record as to one, but omit-
ted to (lie it. He then took a verdict against
the otliei', upon a written .agreement, signed by
the attorney after such entry, to admit his lia-
bility in a .sum named. After the verdict this
defendant was arrested, and he then nuived to
set asidi' the lu'occedings : Held, that the plain-
till, instead of entering a iiidle prosequi, should
have moved to strike out the defendant's name,
but undei the circumstances this was allowed to
lie done after the verdict, and the rule was dis-
charged without eo.-ts. I'll run n/ it n/. v. J/c-
I'liihnii, -1 v. II. ;?i:i. -t,). I',.
In an action on an aci'iptanee by a lirm, one
defendant, who it appeaii'd was not a partner,
was struck out at the trial, and the amendment
was held to have been pro[)cr. ('ninni v. Mi'In-
/i/rc <t .'/., I!) Q. |{. (107.
'To an action brought lUi an indenture of appren-
ti(!esliip, inirporting to have been made! by two
defendants, an amendment by striking' out the
name of one defendant who had not signed was
refused, on the ground that the other would not
then have been liable, as it was intended that
both should execute ; Held, that he would have
been liable, notwithstanding such intention, and
that the reason for the refusal was therefore in-
sntlieieiit. .///</;/. v. Tinuusnii it ii/.,-l\)[l \',. W>\).
At the trial, on objection by ilefendant's coun-
sel, that (Uie dcl'cndant had been impripiierly
joined, the judge, on jilaintitl's ap[ilieatioii,
struck his name out of the record ; and upon
defendant's eouiisel claiming the right to plead
in abatement the non-joinder of another party,
the name of such party was w itli his consent
added to the I'lcord as a defiiidant : Held, that
the tirst aiuendniciit had been properly made, but
not the second. Mi-Kn v. Jn/i I'l n/., V.'0 ( '.
I'. -.Id.
I'llder ('. I,, f. .Act., s, (l-i
defemlant improperly joineil in
tract m.'iy be struck out at the trial without his
consent, and even against his objection. I.idr
Siijii rinr Xiirifiiiliiiii i 'n. v. Iliiilliiit ii/., Jil Ij. H.
•-'01. See Iliir'ritl V. fliiiin/tninl <//., 17 (^). )!. U:].
III. Or I'l.i-.Ai.isc;.
I. ( II III ml/ 1/.
The court will not allow an amendment tho
ell'eet of M liich would \h- eontrary to the justice
of the cause, ('nr/ii/v. ('ullmi, [\ \,. ,1. ."lO. - C. L.
< 'hamb. |{obin.'ioii. >?ee also .l/.-/\'i ////-/i v. Van
S;i-k/r>; 17 (I I!. •J-Jil.
.\n amendment should not be allowed, where
the etleet of it is to make the pleading deuiur-
the name of a
III aetion on eon-
* »r
•41
79
AMENDMENT AT LAW.
80
»S
rable. Banl- of rp)>pr Coiimln v,
Q. B. 451.
Uu.ler the C. L. 1'. Act, s. '222, all aiueiid-
mcitts necessary to (luteruiiiie tlie real (juestion
in contntversy are imperative, without reference
to the character of tlie action or defence. Tlie
only point for the court or a judge to determine
is, whether they are so necessary, /inn/.- <>/' Mmi-
trnil V. I{,!/,w/<l.-<, 24 Q. B. 3S1."
litilldu, I'l I the declaration ; he cm\ only compel the plaintif]
I to amend tiie misnomer in the declaration, under
the new rules, ilmv Hunk v. ('iinf, 1 C. L.
Ciianili. 18.").- Macaulay.
The warrant to levy was stated in the notice
of action to liavc lieen directed to Willioiii
Thompson, when it really was directed t(j
WillUiiii II. Thom])son : — Held, not fatal. Ilhi-
xim V. Ward, 8 (^. B. .")02.
1.
VarUincc hi'lic'i'ii Eridi'iirc and AUi'ijathn^.
(a) Xame>i.
riaiutiDF sued as executrix on a bond made to
her in her own right ; — Helil, that she cmild not
recover, and nonsuit entered. Ilaii- v. Muni-
iiomen/, T. T. .3 & 4 \kt.
The plaintiff, having sued as administratrix, I
was allowed at the trial to amend by claiming in '
her own name, and the court held the amend- :
mei.t properly granted. C/iandii'iiain v. Smith,
•21 Q. B. 10.S. !
The several members of a firm being sued as |
indorsers of a note, one by mistake was called j
Cliarks Jones, his Christian name being H'lY-
Ikun : — Held, that the variance could occasion !
no diliiculty on the trial, the only question being !
as to the identity of the party ; and that defen- !
dants, if they desired to object, should have moved j
uniler 7 ^Vill. IV'., c. 3, to compel plaintilF to
amend liis declaration. Kflclnnii v. Joma, T> Q.
B. 4(J0.
Where defendant set up a deed as made be-
tween A. B, of the one part, and the Bank of B.
N. A. of tlie other, and when produced at the
trial it turned out to be a deed made between
A. B. and Thomas Paton, who was after-
wards stated in the body of the instrument to
be inspector of the bank : — llelil, a fatal va-
riance, and not amendable. Bank of British
Xi. rt 'i A nwrica v. Shi^rwuud, (j Q. B. 5.52.
To an action on the common counts defendant
pleaded a prior suit between the same parties for
the s.ame cause, and prayed an inspection of the
record, and it appeared that the plaintiti's name
in tlie former suit was Janie-i H'. Whyte, and in
the second, James M. Wliyte : — Held, a fatal
variance. Whijte v. Cameron, 7 Q. B. .'178.
Quicre, how far tlie declarations in tiie fwi'
suits varying as to the number and nature of the
common counts and the amount claimed, would
be fatal. lb.
The plaintiffs, by the name of the "Council of
the District of Brock," declared on a bond, which
when prtxluced at the trial, was found to be
given to "the Municipal Council of the Brock
District. " The bond was not set out on oyer: —
Held, variance not fatal. Brock District Coun-
cil v. Bon-en, 7 Q. B. 471.
So where a bond was sued upon in the name of
the "Trent and Frankford Road Company," and
upon Ixjing produced was in the name of the
"President and Directors of the Trent and
Frankford Road Company." Trent ami Frank-
ford Road Comijunii v. Marshall, 10 C. P. 329.
Where defendant appears in a different name
from that in which he is sued in the writ,
and the plaintiff' declares against defendant by
the name in the writ, defendant cannot set aside
(b) //( S.'afement of Bills ami Azotes.
Wliere on an assessment of damages on a note
stated in the declaration to be for £40, a note
for t'42 was proved, an amendment was refused,
l)ut a \erdict allowed for the note as set out.
Bank if I'/i/ier Canada v. Crauford, 4 O. S. 301.
Wliere a foreign bill had been so declared ujion
as not to shew it to have been a foreign bill :—
Held, not a variance upon which a nonsuit could
be granted, liotie.-. v. Joseph, 7 Q. B. .505.
Plaintiff declared against defendant as maker
of a note, anil produced at the trial a bill of
exchange drawn by defendant, and endorsed to
rlaintiff :— Held, not amendable under 7 Will
v., c. 3. Vizard v. Gilchrist, 13 Q. B. 605.
To an action on a note against two defendants,
usury was set up, the plea being that plaintitl
lent defendants £200, payable in a year, and that
the note (for £250) was given therefor. The j
evidence shewed tliat the loan was to one de^
fendant only, and that the other signed the note :
j merely as his surety, and was no party to tlie '
j usurious contract : — Held, a fatal variaiJie
i Farley v. Oilhert et a/., 14 Q. B. 147.
After motion to arrest judgment on a note,
j which as dcclareil on was not negotiable, there |
! having been no defence at the trial, the plaiutilfl
I was allowed tt) amend cm payment of costi |
Martin v. WilOer, 9 C. P. 75.
Declaration on a note payable to G. or order i
Plea, non fecit. Tlie note when produced wail
payable to <;. or order, " for the use of M:"-|
Hell!, no variance, for it was declared on accorj' I
ing to its legal effect. Miinro - Co.t, 30 Q. B |
3G3.
(c) /// Statement of Contracts.
Wliere in replevin the landlord avowed foil
two and a-quarter years' rent, but proved il
tenancy for only one year, although the teniunl
continued in possession for three years, haWiigf
however, paitl no rent, nor made any acknoit
ledginent during the last two years : — Held, i
fatal variance on the plea of non -tenuit. ThonA
son V. Forsijth, E. T. 2 Vict.
After refusal at nisi prius, allowed in bantl
Lawrence \. Tindall, M. T. 5 Vict.
Debt on an annuity deed. Pleas of usuiyl
amended as to the sum and dates. Wrhjk vl
Marralls, 8 Q. B. 511.
In a qui tam action for usury, any vuriauJ
between the statement of the time of forbearawl
laid in the declaration and the true period il
fatal. Fruser q. t. v. Thompson, 1 Q. B. 314.
In a penal fiction for usury, after verdict iij
plaintiif and new trial granted for a vnriai
well in 1jm;1
81
AMENDMENT AT LAW.
83
bi'twocn tlio stati^mcnt of tlio loan ami forlioar-
' ^.^, .,^ |;ii,l ami that iii-ovcil, thu I'duit ivfusL-d
' aiiK'Hil tliii (k'l'laratiim tiy making it txirios-
witii till.' L'viduiii-'c. Friiy-i-ii. t. y. 'J'litun/i-
;•>■>
to
pom
,„„, 1 Q. li-
ill an actiiiii (Hi notes, tlie (IftV'iicu act upheing
j,^,„.y . JHeld, that variances in the unumnt
' as intLMuloil to In; lo;ini!il, anil in thu sum
Ucclaratiou on special agrecmont, aincndeil by
avuiiing excuse from pcrfonuance, insti^ad of
l)crforniaiice, of Contract. ''/,o7.'.v. .l/'7v'(((/, '.i'2
g. I!. .")8;{.
(d) /;/ Sditcincnt of Uniiils.
AVliere tlio plaintilF declared upon a penal bill,
and proved a bond witii a condition : -Held, not
a.sullicient variance to set ayide the verdict. Jh
It'irh fi- V. (Iraiif, Tay. tT.'f.
Tlie plaintill's, who had taken fr.jm defendants
a bond for the due performance of a collector's
duty, witli a condition in it prescribed by certain
was bound by the C. 1^. V. Act, h. •-'■J2, to j municipal l)yda\vs, declareil uiiou it as upon
The auicndnient v,-as therefore ordered, a conimoii money bond, withdut setting out
and a new trial gr.inted. Iliiil; of Muntrrtil v. the condition; the defendant plea<lcd non est
ii", ///("/(/s '.M <^ 11. liSI. ' factum ; —Held, not a fatal variance. It would
Viriance between a recogui/.anee of bail, | '''^^:'-" '^'^"'' '"i";^''' l'"";y.v^''\ ':"■ .tl'y plaintills
»„t,.v d into in a foreign country, as st.atod i„ ' to Ikuc set out the c..nd.tion niti.eir declaration
eiitoi<.(ini[ooi.i ^ „ ^ rr.ri 1 f.,i..i w.; , ami assigned breaches. l!r',r!: I>,.:!rh-I Cuiihrd
at itod" as the excess beyond legal interest, were
I nnlcrial. '1"'"-' learned judge at the trial refused
Itu aim^'i"' '" ^'"-■'*^' ''''*'l'^^''"'' ili-'siring the ojiinion
[of tiie court :-llehl, that being an amendini'iit
[necessary for the purpose (-f determining tlie
I red iiuestiou in controversy between tlic parties
t . '
(allow it.
Itiie declaration, ami proved : Held, fatal. Shurt
Khih<nuii, 7 <,». 1''. 3.m
The plaiutitT chargol defendant on a guar-
itee for certain rent; to wit, t'J per month.
The evidence shewed an agreement to pay only
El •—Held, a fatal variance, notwithstandinj,'
. aiuouiit was laid under a \
(\,rtir,i)Q. B. 470.
/i.
Diri II I
«.).
471.
L.'lieet.
The plaintili's Bueil defendants II. >fc I), as hav-
ing jointly executed a bond ti) secure paj'inent
of rent by H., which being set out in tiie plea it
apjieared that T. was also named in it as obligor,
O' \V/7/ '"'*' ^''"' ""*' i-'-'^i^^'i'ted. It appeared that at the
j execution of the bond T. was not present, and
i defendant U. told the plaintilT that he could
Hie dtvlanation stated an agreement to pay to ; „„t, conveniently attend, but wouM sign it at
any time. T., however, afterwards, on being
applied to l>y the plaintill's, refuscil to execute,
and no objection had been in.aile by I)., although
aware of the refusal : Held, that the non-exe-
cution by T. was nil defence iindcM' a [ilea of iiou
est factum by II., as shewing a variance between
the bond declared on and that set out. S'liliiiij
lidllll < 'mil 11(1111/ V. l/il/llir.-i il (>/., \{') i). li. '2(iS.
ISut see ^'o/7;(/C((//<,// <;/' lliii-nii V. Ann <lr(ii)<i, '27
Ihree persons, and tlie agreement was to pay half
ami half to the two others : -Semble, per
Jraiier, J., no variance. ISiiim v. Sforir, 12 Q.
Tiie plaiutifl's declared as upon a guarantee to
bay for "iiods furnished to I), between the Ijiith
&ctohcrrbS4.S, and 1st .April, IS.VJ. The evi-
ieiico siicweil one guarantee to tiic 1st April,
fsSO, and attached to it an agreement that] the
le sill mid continue until the 1st Ajiril, KS.")'2 :
■Held, no variance, /,'us.; r/ iil. v. Ciiiinrdii, 4
W nil!.
Of declaration in covenant, by allowing iilain-
f to claim as assignee of the reversion, instead
proving a covenant \\itli iilaintill', refused.
'niiiinii V. Wlt'illiij, 15 ii. I!. L'77.
The iilaintiti' was allowed to amend his declara-
lon on ail insurance policy, so as to shew that
lioliuy was to be subject to such eonditions
' as were contained in the juinteil ajudiea-
,s for iusuran.e, cm which it was granted,
igh the court intimated that such amend-
t would lie of no avail. Jiiro!t-: v. Tin /■J'/iii-
: lii-iiinuir,' Co., 18 (,». B. 14.
Plaintiff aned on an agreement, and at the
,1 liis witnesses failed to prove a jiart of it,
cli was etruck out of the declaration. 'J'he
ntitf was then called for the defend
the aurceineiit as at lirst set out
Q. 15. .Vi;!.
The bond procluii'd acknowledged defendants
to be indebted to the holder thereof, and pro-
mised to pay the same to such holder at the
agency of tiie Dank of .Mnntreal at Ottawa, on,
&e., on the suriindir of this bond, with interest,
&c., payable, ic, upon presentation of the
several warrants or coupons hereunto annexed,
at said agency : -Held, that there was no variance
between the bonds declared on and those pro-
duced, in the former being stated to be pajable
to holders generally, while the latter were pay-
aide only (Ui snrrenderwind at a jiarticnlar place.
r,i/i,ii
V. OUairii G'd-f t'oiiijniiiii, Ii) V. P. 174.
//. /,',
■ (■./■l ililil J lliliJiUfllt<.
In an aition for malicious prosecution, the
leelaration stated a trial before the Hon. L. F.
•i"d , .Sherwood, and .\. .Macdonell, assigned l)y His
His i Majesty's letters patent to them and others
enii allowed tlie declai'ation to be restored to
J original form, and refused a new trial. /'■ IrU-
[3'.o.«(i/o7/, •_'•_' <^>. I'.. (i08.
sclilid not amend .again, and the jury found ' named' therein tlir'ected, and the record put m
the iilaintilV, adding that they believed the j evidence was of a tri.d before the Hon. h. 1'.
.•itiiick out to be ill the contract. The court ! Sherwood and others his feUow justices, assigned
by letters jiatent directed to him and others, and
any two of them, of whom he was to be one ;
Held, no variane..'. /'nnln;' v. Ildmi'h.n, -2 ().
S. 114.
In tresiiass for niesiiu prolits brought by hna
band and wife, alleging a juiiit recovery, thu
recovery in ejectment was proved to have been
the ilemise of the wife alone :- Held, a fatal
v.irianec. A^Jittm cl iix. v. KecMi; 5 (). S. Jj'J.^.
an action by a tenant against his landlord
wrongful distress and sale of his goods, the
of the action is the wrong complained of,
theiofore a variance between the contract
out in the declaration and that proved is
laterial. Ifo'iiii^oit v. Sliic'ih, 1.5 t'. T. ;!St>.
}-"
:'S
if
'A
....It-
83
a:\iendment at law.
Si
i!lii
11 1^
[4
rjlii:
On a trial )>y V'^cnrd, a variance between tlie
pleaclinj,' on wliii'li tlie issue was raised and the
recdrd iirodiKcd was amended, altlnmyli a trial
had lieen had on iither issues. LairrfWc v.
Jfiinlii!/, T. T. 3 & 4 A'iet.
Defendant iileaded a set-off of a judgment re-
eovered in debt on bond for t''2'-'.S l.")S. 3d., being
.i'JOO debt, Is. damages, and f2.3 14. 3., costs.
Tiie jilaintiil' reidied nul tiel record, and the
judgment ajipeared to be for the recovery of the
debt, damages, and costs, and also i'l.j I'ta. for
damages assessed on account of breaches of the
bond : —Held, no variance. Ijiiinrniiiii v. Uroini,
•2 g. li. 40'.).
In trcsjias.s for mesne jimlits, the variances
set out in tiie case, between the judgment in
ejectment pli'adcd and tin; on(,' produced, were
held fatal. (liirrhm v. \\'oo</nif, 8 Q. B. ,328.
The declaration sit out a writ of ven. ex.,
reciting that the shcritl' ha<l been connnanded to
maice of lands, iVc. ; his return, that he had
taken lands wliicii ri'mainc<l unsold, itc, and
connnanding that he sliould sell the said lands,
&c. I'lca. nul tid rccoi'd. The exemplification
produccil correctly set out the writ, reciting the
idierill's return, that he had taken goods,
MJiicii saiil goo(ls remained unsold, and com-
nuindiug him to sell the lands ; Held, not
amendable, the error bi'iiig in a material j)ai't of
the writ itself, not in tlie declaration, lirairii
v. Ciffnll, !H.,). I!. 314.
In debt U]poM a rccogni/an<:c of bail against
defendants as bail ui i\, the declaration alleged
that tiu' di'fi'udants entered into a recognizance,
and thereby became bail loi' said ( '. to the
limits of, &(■. i'iia, nul tiel record. On the
recogni/anci' mil being jirodiu'ed it appeared that
tile debtor ( '. had also joined in the ri!eogni/anee
witli clel'endants, which was objected to as a
\aii,ini.e : Meld, that the (dijeition, if any,
slionid havi' been taken by idea in alntement.
.)/,•/•',(, 7,/,/, v. .(//.;/, (I C. I'. II'!.
(f) Olhu- <\l ■<!>■■.
In an action on an award, the submission, as
declared on, nientioneil tluve defemlants, and
the award in reciting the submission oidy noticed
two, but referred to the rule by which the sub-
mission was made as annexed to the award, in
which ride the three weij|( named : Jield, that
the variance lietween the submission declared
on and that recited in tl.j aw.ird was immaterial,
as the :-iiliniis:'ion itself a;;reed with the declara-
tion. Iliih V. Mull,:, nil", l»ra. (i!!.
In tresjiass fur t diing good-', defendant justi-
lied as sliei'itl's baililf, under a warrant to make
of clefendant's goods a sum ivcovered tor costs
in case, ami the warr.mt iiroduced was for
damages and costs in assumpsit : Held, a fatal
variance. JJni/l, v. <l,ifi„r T, T. \\ Ik 4 N'ii't.
.'Mias ca. re. averred in the declaration and a
ca. re produced at the trial : Held, an innna-
terial variance. \\',i,„l \. Slur in mi I, 4 O. .S. I'JS.
In trespass ipi. el. fi'. the description of the
locus in c|iio in the declai.ition may be ainen<led
at nisi prius; but a description of a house as
being on the corner of .i lot : Held, not sup-
ported by shewing that it was near the corner,
out that there were two or three other liouses
1.1
between it and the corner, .^frni/on v. Wnxli'rii
1 Q. U. 30.
Where tlie declaration is in debt, and the pro-
cess in case, the declaration will be set aside.
Ki'lchiiiii V. Iltiji,!},-, 1 ('. L. Chamb. \Tyl.~-
Kobinuon.
Where there have been two leases between
plaintiti' and defendant in replevin, and de-
fendant avows under the wrong one, the court
will allow liim to amend at the trial, if it
cannot be shewn to prejudice the plaintiti.
Eilirarili v. ll,iliii,-.<, 4 (^. H. 04.
An alias test. ca. sa. is still a ca. sa. ; and there-
fore, when defendant justified under the alixs,
anil the plaintiti" replied that the saiil writ liaii
been set aside, and then proved a rule of court
discharging the arrest nnder a ca. sa. : — Helil,
no variance, /{nhi rlMiii v. Mii/f-r-i, 7 Q. 15. 4'2',i.
The warrant directed T. to levy £1 lis. ty.,
together with the cliarges of distress and salf.
The notice of action described the warrant as
one directing T. to levy a certain large sum i.f
unmey, to wit, fl : — Held, no variance. //ii/,„„
V. }i'(t,;/, 8 t^ B. 002.
Variance between iiulictment and proof, in
description of land. It,ii'iiiii v. linlni, 12 Q. ];
34(i.
The plaintiti' at the trial claimed a.s owner di ;
goods insured, and the ju<lge ruling against liim,
he applied and w;is allowed to prove his interest as
mortgagee : Held, that it was in the discritiun ^
of the judge to permit this, and the defendant,- 5
not shewing tliemselves damnitied l)y the exti-
cise of this iliscretion, a nonsuit was refiiacil,
S,;ilcliir<l V. K'jii'ilithl,' l-'ir,- lii.oiriiiir,' Cu., H (
P. 4ir..
In an ai'tion on a jjoliey defendants pleadcij a|
connnunication opened between the buildin.
where the goods insured Were and the buililiii^
adjoining, without notice to them, contraiv t j
one of the ciuiditions of the policy. At tlie trial j
it appeared that they had misdescribed tlitj
alteration on which tliey intended to rely, imtl
it was also sliewn that l.ucIi alteration hail njil
in any way caused or contributeil to the tiiv : j
Held, that under these circumstances an aiiaiM
ment of the plea w.is properly refused. .lA
Kfini' V. \'mi<ii-l-l,-< I't III., 17 Q. B. 22i!. Bii;|
aae Bun/: of Moiitniil y. Hfi/nuhh, 21 y. H, SSI
The declaration charged the diversion nt tl:-j
water complained of to be the direct act ot tlrl
defendant, whereas it was caused ))y a freslitll
forcing a new channel through a ditch wruji.'l
fully cut by him : -Held, that an aniundiiient.i.)
necessary, would have been allowed. M(l."t\
v. ('i;„n,„i, 33 g. R 443.
3. Aili/iii;/ ('.jiinti (iml PL-j-,.
AililiiKj ^'.i«;(/-i.]— The plaintiti' recovsrol
verdict at nisi prius, which was set aside in tuml
He then moved to amend hi.i declaratiiui i
adding two new counts; and leave was grant J
on payment of the costs of the former pleuilitJ
and of the application. Kiini-'iiiill v. Ham.'i
O. S. old.
In tresi).a:i3 (ju. cl. fr. , after judgment againsl
the plaintiti' on demurrer to his replication, til
court refused leave ti> add a count for .ossadil
Hendermn v. Uiirpei; 1 Q. B. 528.
8.'5
AMENDMENT AT LAW.
M
A iipw count was added to meet defciiilaiit'ti
BPt-ott' .lefendant having leave to j.lead de novo.
Hom'y I'^'H, I »'. I^- <^hainl.. !t(i. -Macauliiy.
Under S Vict., c. 13, a ( 'ouiity ( 'ourt jiid^rr,
in a case sent down liy writ of tri.il, allowed
til'iintili' to aild a count excu.sin« tlie noii|iay-
i inent of a note to the maker, llie declaration
bavin" averrol its lire.sontment: llehl, nnanllio-
In an action for money hud ami received a
count for ne^^linence wan aflded at the trial :
I Held amendment ini|iriii)er, not licin;; necessary
I to determine the real i|ue.stion in eontrover.'^y in
I the fnit, lint the .snlwtitntioii of a new cause
I of action. //"»"'"""/ v. Ilnrun/, '-'O (,». P.. .'ill.
Held under the circum.stances Htated in thin
|ca-e that in an action for sei/inj^ two horse.s the
liudJe was jUKtitied in allowin.; a wa;,'i,'on and set
lof harness to he in.sertcd also in the declaration
lat the trial, defendanf.s counsel (d>jeetiny, Imt
liwlniittin" that he was not taken l.y surprise.
I' c'Miveved land to dcfenilant, " snhject to a
nort-ace," and witli a covenant for (|uiet enjuy-
nicnt''free ftom iucnni))raiices. I>efendant then
Semised the I Old to I . and wife for their respec'-
ftive lives, and I'. assi;,'neil to jilaintill' all his
interest tlieniii, to hold during the life of I'.
Ihc in"rt;,'a^'e( s, or tlieir assignee, hrought eject-
nent aganist liotli plaintitV ami I'., when the
blaintiil paid the amount due under the inort-
hl'c, and sued defendant for money paid to hi.s
ii8e :' Held, that he could not recover in this
lorni of action : ami the court refnned to allow
blaintitlto amend, hy adding a i'ounta.i as;-.'.;j'iH-e
bf the ciivenant to pay the -.norl-age coi.tained
tjie deeil from 1'. to deh'ndant. Snji/i r y.
^;.V./'r, •-'JC. r. 3(11.
Aihini;! /Vm(..] -The court will not allow an
^Linhuent liy adding a plea, when the eU'ect
Could he contrary to the justice ;>f the cause.
poW'// V. Ciitfiiii,' ^ L. .r. .")0. -('. !.. ('hand). ^
oliinson.
The en\n-t refu:;ed to ridieve a sherifi",s
.urety, who had snIVered judgment to go by
lef.nilt, after damages had been assessed against
Ti, liy allowing him to plead that he had already
Bill tlic anionut of hi.s covenant umler the
atiitc. Sn,ii V. MrDonoM, (i (». >S. 'J.-JS.
Where in an action against an cxccntr>ron the
Olid of his testator, non est fat.'tum oidy
J8S iileiidod, and the plaiiitifl" had a verdict, the
pint refaseil to grant a new triid and allow a
||ea of ]ik'ne adndidstravit, on the allidavit of
he executor that he. had adnunistered .all the
Bcts lirfore action there being no satisfaetiiry
KiWiT given why the])leahad not bci^n pleaded
(fore. Milhiii'ifdy. /),Ti(i/li; (i (>. S. .'W,').
|i\li]ilic;ition to add a plea of u.sury refused,
>r several applications to add other jileas
licen already refused. Pc / v. KuiijfiniH^ I
],. Ciinndi.. '_•■_'."). - Ihirns.
ll>( finilant agreed ti> jiurcliasc from plaintilV
"» liarrels of Hour, to be delivered at a goo<l
ft on |„ake Ontario in all Jaiir iic.ii, by giving
I Imyer one week's imticc at Toronto. I'lain-
' sued for non-aci(pt<ance, averring an ofler to
Kvcr the Hour at > "^iwcgo, and that defendant
refu.->ed to aceejit. Ilefemlant |ileaded that the
plaintiH' gave oiu; week '.i notice cif dtdivery to
Inm at Oswe;io on the 1st of .June : that he wa.^
ready to acccjit tin' Ijiinr there on i^aid 1st .Inne,
mil/ J'lir II riiiitiiitihtr linn IIh n nj'li r, but that
the (dainliir had not the Hour (ni that day,
imr III iilijl linn irilliiii ii n n^iniiihli linn lln ri nfli r.
It appealed that the plaiulill' had ijivcii notice of
deliveiy on 1st .liiin', Iml aft'i'W.mls, mi the.'ij.st
May, linding that tlir^ l.-^t .luiic wdiild fall on
Siiiiihiy, he iKitilied dcrciid.iiil iiol, to attend tlieii,
but on the I I til iii.stcad, Mini tiiat he liad attended
bdlh on tlie "Jiid and llth, and wa.i ready to
di'liver, but thfcnd nil was nut there to accept.
.\t tlu' trial tile t'liief .Justice refii.sed to allow
defendant to aild a ple.i, setting up as a del'cnce
lliat by departing from tlie lirst notice the plain-
tiH' li-ul put .■111 end to the I'olitraet. /Jrnii J.ill
V. Miii,\ !."><,>. I'.. •.'!,■!.
In an .iction im a policy nf in air.ince, de-
fcnd.ants by tiieir plea deiiicil the lo;s in Die usual
form, and under it desired to shew tiiat the
building had liei'U designcilly set lire In : Held,
that this evidcuci' w.is rightly rejected, .-md that
an application to add siieh a pje.i at tin' trial was
pro|pcrlv refiise(|. Mniiii \\ Tin \\'< y!i rii ,|.;;»-
/•./»-■, (':,., 17 <,». i;. i!i(».
Ill an aetinii on a Inuid given to one T., the
jilaiiitill', de.icriliiiig him as treasurer of the
municipality of l''ergn.-i, for tiie pi/rforni nice by
del'eiiilant I', of his iliities ,as cciliecdir : Held,
I. 'I'hat the iiegle"t of the eleik to deliver to
I', t'l" r dl before the 1st < >ct(dier, as directed
j by Iti \iel., c. IS-J, s. .",!l, fMiined no defence fur
j the sureties. '_'. 'That they were not relieved by
i an extensiun of time for the cidleetion of the
' rates allowed by the coniieil to I'. .'!. .\tliniiiiig
I .liidd /■. It. ad, ('; ('. I'. :{!;•_', tliat the, action might
, be maintained by the plaintill' a; treasurer,
I thongli the statute clireels tiiat tin' bcnid shall
be taken to the miiniiipabty. 'I'lie ease wa.5
refj'rred at nisi prius with tiie same ]Mi\\ir to
i the arbitrator a.* the judge had, to aineiul the
j jdeadiiigs, and under this he allowed ]deas
j to be added, raising the lirst ami second ipies-
tioiis .above nicntioiied, which he referred to
I the court witii the last. Per .McLean,.!. The
j last objection should not have been allowed by
j the arbitrator. Tmlil w I'l rrn, 'KXl W. (i-l!). "
Where a jilaintiir apidied to amend his decla-
', ration, tile defeiidaut was also allowed to adil
new ideas, but not, as a matter of course.
i /i'o;/-/-.s V. Ih.il.s, ■_• I", i;. i;;(i. C. I,. Chamb. -
I Ibibinson.
The judge of the County Court e,vii add \deaij
< in eases sent down from superior courts to be
: tried by him. Kimj y. (Hnxs/nril, II C. I'. .|!»0.
When an arbiliMtor, h,i\ ing |i(iwcr to .amend
the i)leadiiigs, allowed a plea to be added, and
the ]parties aU'ected, iiistisul of aip|dyiiig to have
tin; reference reyoki^l, ])rocied<'d w itii it iiotw itli-
standing the anieiidnicnt, which they contended
I wa.s improper and unjust, relief against the
award on tliis ground was refused, altiimigh the
court thouoht, on the m.iterial betore it, if the
same was before the .arbitr.ator, the aiiieiidment
ought not to have been .alhiwi'd. Smni v.
Coxi/riiri, '2 I,, d. X. S. II. I'. ('.- -\Vil.son.
The defendants, after an appeal in this country,
ami to the judicial eoinmittee of the I'rivy Coun-
cil, and after a new trial ordered, ajiidied to .add
{■^
87
AMKNDMKNT AT LAW.
Sj;
Ml!
! I'l i,i
w
1 "'':
to tlicir |il<'.i III iii>\ii- iiiililitril a )ili','i 111' {liiy-
meiit aiiil a M|»'cial plea : Hi'ld, tliat t'nr tln'
jiiir|inaf.s (if the a|i|ili(atiiiii tlio caso imi:it he
coiixiilcroil .iM tliiiiiu'li awaiti?!",' trial fur flic tirot
time: tint tin' jilrii nf |),iyiiii'iit iiiii,'lit clearly
to 1)0 alliiWL'il, lint tliat ttic sjiccial jilea was cal-
culatfil til I'tiili irr.i:;:i tiic |ilaiiititTs iiiiiUHcsfi.irily,
and, if a il'fi'iii'c at all. vva.i i-overeil liy tlic jilua
of never imlelitiil. V'/ii. < 'iitiiiiurrin! Ilitiih (if
<'illl(1i/ii V. T/ii <</'fi> III ■./'/•» li'dihr'iil Cii., •_' h.
.1. X. S. Kl.'j. ('. I,. Chanili. A. Wil.s.m.
Where a jmlu'eat ni.a priiis, in ailefemled ea-'.e,
in wliieli, liuwevcr. im one aii|ie,ired for defend-
ant, Ind anienileii the record ex |iaite liy insert-
ing an omitted iilci and rciilieition : Held, that
the amindnient w.is |irii|ierlv made. I 'inii/ilnl/
V. A'i//i/', KiC. 1'. --'U.
The jilaintitl' h;iil sued out .m attachment
ngain:'t defeinhifit as ;in ali:;cii;idi:i;^' delitor, and
went down to tint '(Hiiity ( 'onrt to prove his claim,
upon a rei-ord shew iiiy interlocntory jud;iinent
.'iigncd for want of a |ile,i. JH fenilant.i]i]ilied to
havoaple;vof never indclitcd put on the record,
<in the cidiind that siieh plea iiad lieen tiled hofore
signing the jiidgmeiit. 'I'lie application was
refused, for defcMilant should have moved against
the judgment if i'irc;;nlar, and he had no right
to jilcul until he li id put in .'ipeeial liail. <>ll'"l/
V. ('jl'(i;i, -(!t^>. li. :!(;,'!.
On an a|iplicatiiin to eumpcl a r.ulw.iy eoui-
|iiny to arliitr.iti', the i(Uestiiin whether the
plaintill's land w,is injuiiously atl'eeted, under
the admitted facts, was raised liy return to the
mandamus, and foiiually decided in the plain-
titl's favor. .An arliitr'ation then tonk )ilace, an
award was m.ade, on which the plaintilV Kued,
and one trial was had, resulting in a verdict for
defendants, which was set aside after having
gone to the ( 'ourt of .\|ipeal. Mefendants then
ap|ilied to add ;i jilea that the l.ind wa.s not
injuriously allected ; hut the court refused the
a|iplic.ition. ]\'i</fli r \. Tlti Hull'dln uml l^uLi
Ihn-ni, /,'. n: r,,., •_".»(.». I!. I.M. '
In an action on a mutual insnr.incc policy,
defeudant pleaded non-p;iyment of an assess-
ment. The judge ruled that ;in insurer is not
li.able for ;issessmcnt made before his insurance
was etrected or jiremiuni note given, and refused
to allow defendant to plead ;i suliseiiuent as.sess-
ment made after tlic policy. TIk; court would
not grant a new trial on the ground of such
refusal, no allidavit of such asscfisment being
filed. (I'mii V. I'/ii ISiiiri r ini'l Toi'imto M iilnnl
Fin. Iiitufiiiiri Cii., ;! I {}. !'.. 7'S.
■1. Afh r Ji"/'jiii' lit nil Diiiiiirrii:
After verdict for jil.iintill' and contingent
damages as.scssed, judgment was given for de-
fendant on deunirrei' to the replication. The
court refuseil to allow plaintili'to amend. I'liiUqix
V. SmUh, Dra. -IW.
r.ut such .■imenduient will be .illowcd where
justice re(|uires it, and the ]ilaintill' would be
linnllv concluded. Ilrmh iirii/iji \. Kim/, 4 ( ).
S. '2'.)1. Mii.nnll V. llinisiiiii, \\l li. 28]'.
.\ftcr judgment on demurrer in favour of plain-
tiff, the court will sometimes allow defendant to
amend on an allidavit of merits, oven though
the plaintilV has lo.st a triid. .l/cC'/v" v. ll<iiitil-
Ion, ^I. T. 5 Viut
When there w( re sevcr.d counts in .-i decl;u;i-
tion, varying the smue cause of ac^tion, to whiili
defendaid ple.ided di.liui't plc;e., ;nid tiu^ JiImh
till' having demurred to some and replied {,,
othcr.'i, aftei' judLineuL a;Mini.t him on demurrer,
recovered a verdict on the other |ileas, ik,
defence li iviiig been niide id thetriid, the court-
Held, thit upon th(> |iK'adin^:s the pliintilf *
recovery wa.i barred, but, under the eircum.
stances, they giMutrd a new trial with leave t,-,
amend. Hk/.m,// v. IhtniiHiDi, (iO. .S. ;ipJ.
Where In trespass there were ."Several i.-siicr. in
law and in fact arising du sever.d Hpeeial ]il.n
going to the whole c ur-cof actinu, and the plaiii-
tirt', before the aieumeut of the deiinirrers, wput
to tri.il and as.iessed hi.i damage.) at X,\~ 1(1;,
having [iroved only one act rif tnspass, and tli
demurrers were aftcrw.iid.-- admitted to beagiiins'
him, the <'ourt refu ed to allow liim to f,et nsiil,--
his verdict, anu-nd his pleadings, and go tu i |
new trial. /'///■;•.' v. .V//- c.:, CO. S. A?,',i
Ainenduieiit uill not be allowed nnles,^ tlie I
circnmstiincc; ,ire \-ery special, and the ni'ifiin
[irompt. i'niiiil,r\. ilnniiltuii, I (,». Ji. ti.
.\fteran unsaicce.i.^ful dennirrer, the court will
siunetinies refuse to .dlow a party to amend ,iii,l
plead to the action. /lurnn v. Mt/!i'iii it nl .) j
(.>. i;. i<»i.
.An anieudiiicnt of defendant';; jileailing.i wisj
allowed after judgment on dennirrer against tliej
rejoinder, //•nni/'i^'i v. htirU, I <,». F-!~ WIW.
Wliere a defendant after judgment on deimirl
rer was .illowcd to amend on payment of ce-t .
which were not piid, the rule w.is ni.idc ali.uiliit
to I'uter the judgment for plaintill'. iS'//,.(,
V. All'Hi., v.. T. ," \'iet.
In tre; p.iss ipi. el. fr., after judgunnt ay,iiiit|
the ]ilaintiir on demurrer to his replication, tlie
court refused leave to add a count for a?isaiilt
//iih/i r.-ioii V. Ihn-jui; 1 (,>. l;. ,"i-J.S.
( hi the argument of a second demurrer In si
declaration it was suggested to the pliiiutilfil
eonns(d to amend, but he ilid not, and iiltr
judgment a'.;ainst hiiu, In^ was refused le.ivc- 1 1
amend, .'ihlrn'j) v. .l/.'/u /r./- , 'J Q. H. -10^.
Leave to amend pleadings allowed .after ji;ii.-|
nient on <leuuM'rer, and aftci' ten days thcrefn
then" being ,i doubt as to whether defcnd.nit v-i|
to amend in ten or fourteen days. I'lrr^r:
Iluins, \ C. L. Chamli. KfJ. .Ma.anlay.
Aftei' contingent damages assessed on ilciiii.rj
rer to plea, and judgment for del'eiidant eii tlJ
demurrer, the eoiirt refused leave to n;[ily ilJ
novo, no distinct allidavit of merits bcini; likJ
Ml-Lrllilll v. A'oi/rr.v, |-_'(^». li. (i.-.l.
DcfiMidant being sued on a lease for not ri'|i;i;:
iiig, pleaded in elieet that the injury was caiiM
by the ]ilaintiir, and in !•'. T;, KS(il>, ti::!
plea was held bad on demurrer. In the full'i
ing term he aiiplicd to amend by pleading It
same defence in an eipiitable form, in onlirll
]irevent the necessity for a cross actimi mI
damages, which he believed the plaintill' wniJ]
ne unable to satisfy. It appeared that tlio
complained of by defendant were eomuiittiil, il
at all, about three years ago, but they we;
positively denied by the phiintill', and defomk
h.id never sued for them. The .aiiplicatiuii m
refused. Kdli) v. Mouhls, 3 1'. K. 'JOT.- (}■ 4
S8
II tlc'clillM-
, ti) wlii'h
tlio (ll llll
iv)ilii'ii t.i
iliimirrcr,
|lll'ilS, 11"
the ('(im-t'
■ |ilaiiitili's
u: cirriiin-
\\.\ l.-S\lt':; 111
HM'inl Jilrn
il till' I'laiii-
irrei->, went
t Cn l(l:\
LISS, mill til
:,(> liL' iigiiins'
to Eii't n?v\'
HI. I (.y tu 1 I
1 iiiili-'s.i the I
tin' niotiin I
r.. ti.
Ill- I'liurt v.i!!
1 aint-'iiil aii'l
<.(;) '' "'., ■!]
ileiuliiiy;; w.is
r iit;aiii^t tliej
•lit I'll ili'imir-|
iiciit of eii't.-,
m.nlc iilc'ilut:!
itilV. S!:im,i\
• nn lit iigiiiiitj
•|ilii.'iitiiiii, tliij
it I'm- assault. I
li'iimrr.T t" i|
klu', \llililltllt;
|iot, ami a!t-tj
}. v.. 101.
I'll al't^'i- .i\;i''.|
[iv.-< tlicrfl'ii>;i:,
]iul'finl;int v'A
Is. /'i/'/V'iv.|
laiilay.
.(1 on ikiiiuj
I'liilaiit oil ti.-i
to reply 'J
Its lifiny fe|
Ifiii-iiiitniir
|ry was i."iu>'
l!Si;:i, tl;:
n tlio full"* I
pli;ailiii,i;li.|
11, ill m-iUrll
liss actiini v:f
llaiiitilV W"»lj
that tho iv^
Jooiiiiuilti-'il, ■
lit tlioy MB
luiil ik'fciiilcl
IpUcatitiii ir^l
207.- Q.I
m
AxMENDiMENT AT LAW.
DO
O/h
her ( '(i.<c<
liy aitiliii.,; that lie tliorcliy " l>eeaini'
A Wi
Aftir i.^suf ji'iiic' "" ""
1 till
il.
Ill il iieniiaiieiitly iiijiircil :" — Hrlil, that thfi
[triiil. the e.mrt i
Ihi'.
t iieiuiitteil tlie |i!aiiitiir tn a;iii
, ! aiueiiiliiieiit wan jiinjier.
(II, ,
V. o'di-iiiiii, \'i
(lee
aratiiiii,
Chiirrli V. linnih.irl, !»ra. •ICJ
I )t avow
|e. t. ?, ^■i«■t•
riv in replevin. TIihiiiiwik v. /Vir/////,
Tlic teriii--
ifaileniifle in an :'.vii\viy in r
»'. I
:;i;i
A pte.x h r. in;; hecii lieM hail mi ilr
fo
iniiy
leil at nisi jin
I.., I.I.
(ill Vlll
Siiiltli,
want iif an alie^jatiuii "f nntiee, iii> n'lj.'-liitii vol
nil^iil (III liili.r ::iil. : Flchl, that a;; it wa.-. iim-
Il Q. B. 'Ml.
If (leolar.ition fur inalieioii.; imi.HNiiti
ha
lile th';. )il.iintitl' hail hail notiee, i
Icfenitant
(
ititenie
l.ur V.
11 alliilavit t" that cH'eet slinuld ho.
itiiil, witliout jiaying eostii of tho
nt I if tiie (Mwt.-j of tho
on lilin;
allo\\eil
ari,iini( lit, Imt on |iayint
nt of court where inilietnieiit tiiul. I'l^'y of the trial «liieli hail )ire\ionsly taken
P,;,ll.lfi:i<>,
K. T. a A'iet.
plae;
Til.
iiii/i-.m V.
/,' ■('•/(,
('. 1'. III.
Of
of los.^ of
ilcelaratioM, hy incertinj; a speeial aveniunt
III ai
1 ai'lion for llowin^ li.icl: w.it
tor, on an
honil, after the faet of lo.is foimil hv : olijeetioii liy ilefcnilant as to the right,
riliet. Kililiiii" v. li'i.i.l;/, T. T. ',\ k -1 Niit. i iileailiii;;, to recover cxeept f
till
lacking
Of iilfi.i I
i-totr
iV elaiiiiiiv.
bain
Of ci|i
Jlcgiiig _
Bade hy I'l'i'i'
Tiiii'ii ' '
it ihle ]
il iif tl.ilt, 17 (^ B. L'.V.I.
lea, to ae
il with
.Sir
II
rtaiii lejiresciitatioiis 'to have been
titV
, I ■.,11 III ir 'I II III'"" v
a^eii
A
t. Tlir <
nil i/riiiiij, '21
ii'li,,ftil;,i)l iif
water as fo interfere \\ ith the working of jilaili-
titl V, mill, the iiiilgi' iilloweil an aiiieinlnifciit of
the ilei'laration, .so a.i to tent (ho right of defeii-
ilaiit t
o overllow
an\-
poili
if the land.
•J7 (>». B
Bv r.tn!;i"iy
lilt count in Coiintv Court suit,
me
nt ohieetion as to jnrif;ilietiim.
/•V/-.S
.1/7/1/'//',
\inoih: V.
JwyiiiH".
.reimler in ileninr
P. li. ii;». ch
ri'r allowed to lie iiddcd at
n iini! ;
I',., nil, ,11 V
Fit.
!"■
• Ill, I (,t. B. '»7<i.
Wlicrcilefenilant l>y mistake demurred to the
ilication to his lir.st plea instead of his second,
that upon the sccoml plea no issue was |iiineil,
t.'etai-ide the verdict and allowed an
jllllKllt. /
tl
( /'/■-/ V.
(.'
II iliiwcr
le ileinani
I hef,
(i>. 1'.. ItiS.
re action was dire
to the lenanl a.'i tenant of lot .", (the right
iMfcndant did not olijeet that thin v.a.i no'., tie
re.il ipartioii in eontrover ■y, Imt merely ir.si.-t'd
he could not then proceed with the trial, which
was tin n upon ]iosti)oneil. Hal: o a[i|ieai'cd that
there had lieeii several trials many years before
between plaiiilid' and other parti's, in which
ilaiiia'.;es wtw claimed for (lowing \>:vk on the
land
as on till
denied by defeinlant that the ipicstii
previous trial of thir; ^alit was the ri.uli
il it wa.'i not
the
aiit was the riijlit to ovcr-
ow
the land at all.
at th"
appliei
there
that the objeetii
niailo
Hid trial, when the ainendmeiit wa.i
lor, had nevi
bef
ore raiseil
thoiigl
I been three cnlries of the rieord fr
trial and (wo lefcrcnees to arbitration between
tlie (ir.-l (rial and thela!-t entry of the record : —
llel'l, that the ;inii'iiiliiicnt had been properly
lot) Imt in it, and in the declaration on the r
Ihe |)renii.«es were i
ma
lescribed as lot '
'cciinl
a ilc.scri(>-
,011 wa.s ho-.vcvcr, given in
both bv inctcs and
iil^, which shewed plainly what lot
Btillilt'il.
If B;ii.t lot -J.
nei
ilea lie
d till
husliainl s seism
The tenant at the trial, though
le nii|ioseil an aineiidmeiit, admitted that he had
lot lii'CU miKlei
1 by tl
tak
Held, that
heaiiitMiilment was properly allowed. Mnlln
\i,iii,«-ii, I :!(,». I'.. ;i."ii.
The jiiilgiiient was or
f'.iir, till
nth, ill
I.'.
Wiilllirhl,,,, 18('. I'. IS(».
In plenling the' general is.aie by stitute, any
st.itnt'- relied upon (or the defence iiin.'t be
a; well as that by
I'liit where a statute
re I err
•'1 t'l
I'l
tl
le iiiar;'iii,
wlinli . iieii piei is allow
been omitted in the ('oniity ( 'oiirt, thid
court, on appe.il, directed the court below to
liiend by inscrtin;; it. \'iiii XnU, r v. Tli' /iiijl'ulit
.[■ I.iik. Ill
lered to be arrested,
laintilV was allowed within o
chambers, to add the nc
lie
cessarv silg-
BStiniiis to the declaration under the •J17tli
ectioii of the ('. I,. I'. Act. Such amendment
/,'. ir,
IV. Issci; I
(A B. .'.81.
>(IOK:-
Issur
.f a lb
neiiiled, by inscrtin;,' a Migge ,tion
eision on ilcniurrcr,
Wil.-liw (>n.
•J!) (,i. 1!. 171.
it allowed unless the iilaintill', on alliilavit,
hews reasonable ground for believing
Inal ikcision of the suggestion will be in his
pnniir. Kiirlilinlj'i r V. /I'o.w, II (". 1'. -11)7.
: AVlii re ejeetnicnt brought under the old ])rac-
iii bSkS had been stayed for security for
(its, ami the demise Icid exiiired nine years
I'c, the court refused an amendment by eiilar-
ng tlui term, which would have deprived
tfiiiilaiit of a title aciiuired under the Statute
' Liiiiitatioiis. Ihii' d. Dull \. lii-iuull, '2\ i).
■m.
[The jiiilge at the trial would not amend by
yivi'itiiig ;ui action of case for injui'y to a
crsieii into one of tresjiass, and the court
ifusoil to interfere. Emrivk v .Siillirnii, '2'i ^i.
10.1
ll(
in a case iiroiie
■r to be b
;lit down to
that the i tlie ('iiiinly Court by the l,aw Itcforin Act of
IStiS, where the entry under form A. was omitted
111! the issue
book.
but notice of trial had
been given for the ( 'oimty ( 'onrt, that the omis-
sion was not a ground for setting asMe the
issue book and notice of trial, biiL the jilain-
tiir would be allowed to aincnil on paynicut of
uost.s. .!/.• A /•///"// V. /■Jllioll, !l I.. .1. N. S. 259.
— C. I.. Chamb. .Morrison.
\. \isi I'llMs l!r.rol;i)S.
A ri'cord w.as auiended in matter of form, after
an a\ipe,al to the King in council. Hvirl.iinl v.
Tiili r, 5 O. S. 500.
'"■'■ Nisi prius record .'illowed to be withdrawn , ami
111 ail action for a.ssault and battery pliiintifl' | .scaled before jury sworn.
wta allowed at the trial to amend his declaration, I T. T. 5 & G Viet.
Mrljian v. Xvrmii,
I ^ 'j'fl
H
AMENDMENT AT LAW.
92
i! !
I ^Mi
Ameuilmeut in jurata of nisi prius recorrl.
fJoe (I Corhi/t v. Sjiroiilr, K O. S. 431 : Dor il.
CrooH'ti V. CnnKtiiiiii-!, | t^. R '_'.">() ; Smith v.
S/(,(rn; iH). B. -'().'
Of rccnnl iit nisi priua, liy tiliinj; up thi^ ]pni|i('r
flay iif nisi (ninn, cannot Ito niailu after jnry
called, tlioii-li not n\vorn. />ii' d. /Iniiitr v.
Bun/, S (.>. K it.
The court rcfnscil to net asicle a rcioril iHiiuisc
the venire had not liiiii in fact anicnilcd, when
it aj)|icarod that an oi'dcr for amendment liad
been j;rantf'd .mil phu'ed in (he mar^'iii of the
reconl, ami that the defendant had attended at
the trial and j;one into his defence. Aniohl v.
/fi'l'lhi.', I I". K. -'Hi. I'.C. Snllivan.
Where a ,inil;,'e at iii;;i |prin-i, in a defended
carsc, in wliich, however, no uric a|i|ic,ired fur
defendant, hid amendeil the record ex parte, liy
inserting an omitted jilea.'ind rejilication : Melil,
that the amendment was properly made, ('"iii/i-
-V//v. Kniip, KM'. I'. '_'M.
I'laintifl' \\:i"< ordered after verdict to amend
tlie nini print record l>y adding in,sne.-i in law
which had lieen omitted, (/nnit v. I'tihif i\ '> W
1\. 301. r. ('. I. Wilson.
The Law Iteform .Vet of lS(kS, ». IS, iinh-H. .'!,
enactii that it nhall lie comiietent for the parties
at a tri;d to con.sent that tlie notice^ for a jnry
fchall lie w.iived, and the ca.se tried liy the judge,
"and to endcir.se a meniorandiim of sncli consent
on the record ; and thereiiiion" the jnclge fli.dl
try, &e. 'J'he plaintitl' had given notice for a
jnry, hnt at the trial the counsel on lioth fide;;
waived it, and recpicstecl tlie jndge to ti-y the
case, which he clid, and found for the }ilaintitl',
but no memorandum w.is cndcir.secl. On cilijec-
tion by the plaintitl' tn the judge '.s autiiiirity to
try : — Held, that the record might be amended by
the judge's notes, which wt ited the waiver and
consent, and the endoi-.semcnt of the meinciran-
dum macle nunc pro tunc. U'l/rut/ v. Ckih/iIx II,
31 Q. r3. .-i84.
been pleaded, without notieiug several other
special ploan of the Statute of Frauds, /foi-hlm,,
en pi
Bciali
Hi'lirJI, o O. S. 3I!».
Where in delit the plaintitl had a.-sc-^fied mnrt-
damages than the declaraticm warranted, ami
had entered judgment for that amount, a.i it m
assumpsit, and issued execution.s sonu' in debtaiiil
sonic in assmnpsit, an ann'mlnient wa.i allowci]
by reducing the daniage.s, cm payment ot cilsIa
.Irn-lll V. /•i„r,ll. M. T. •_> \ht.
In clctit on licind, Ih'' plaintitl' entered hi., vi i
diet ;is if in clebt on .simple contract, ancl enti rtil
jucjgnu'nt in .i.ssuiniisit, and i.^sued a ea. an. n,
debt, on which defendant wa.s arretted. Tli,.
court set aside the c,i. sa. with co.''.t.'>, and allowcil
plaintitl' to amend on payment of co.'.t ;. /v//,.)/,
v. Iluiiii.hwi, M. T. 3 Vict.
.'\w.ird of venire amended. WliUi lum \. l)i,r'„i.
■■oil, !• (,t. K .•i34.
.Iuil;;ni''iit roll anu'ncled by inJierting the ijiit
of it! entry, the amount of taxecl costs in th
eau.ie, aticl the; aggregate amount of delit anl
costs rccovcrccl in the cau.se. IVa/l.-i v. I.llll,
li'iiir, V. Liiii',/, (i I,. .1. L'3;?. ('. I,. Chinilj, '
liiiliiniiiii.
VI. .JniiiMKsr.s a;.I) .lim:
.r i;.
the
A judgment roll was amended by addin
costs. Wii'jht V. Liniilill, Tay. .'{04.
In a judgment on a sci. fa. .again.st an .idmin-
istrator, the name of the intestate was .iniencled
so as to correspond with the original judgment
against him. H'illnril v. Waolnitl, l>r;i. L'OI.
To delit on bond setting out the condition and
as.signing breaches, defendant craved oyer ,ind
demurred, and the plaintitl', having succeeded
on the demurrer, entered judgment for the
amount <if the ]ienalty in the bond and issue<l
execution. Uofenclant then moved to set .aside
the procteclings, but the plaintitl' li.ad leave
to amend, by substituting an interlocutory for
the linal judgment, and entering an award nf
venire to assess damages, and incpiiro of further
lireachcs, although three years had elaii.sed from
the entry of judgment. Ihnciht.-in v. I'oirill, 2
O. S. S7.
The court will ami:nd a ]iost.;a by the judge's
notes, and amend a judgment by the postea, after
an appi^al allowed and rea.sons of a])peal assigned,
the verdict having been taken generally for the
plaintifl's on points reserved, and the postea
being framed as if the general is.stie only had
Held, tliMt a judgment deliberately taken liy
the jilaintirt' against the defendants, as adiiiiii-
i.itratiini, in Septenilier, I.S.'i.S, for assets quaiiili.
a<'ciclerint, with a re|ilication of lands, shnuir
not be (ipcnecl u[i on the ground that certain
assets had since become available for plaintitis
judgment, where defendants had changed tlior \
position bv making iiayments, &,e. Jfililik v
i\'urf/ihi;/>',i, ,>„/., 7 r,. .). -208.— P.C.— Hichank
One of (he defendants, hJilniinnl M. eornctlv
ctyled in the wummons, was by nii.stakc iiamtil
in the judgment roll and executions EihranlM
Held, aniendalde. M<Kiinir \. McXiiii'jIiinv \
<t<tl., S L. ,1. ;{2;). ('. L Chamb. - Robinsnn. '
On ajipeal from a County Court, the (>, I;
macle absolute a rulj to enter a verdict for di. ftc- 1
dant. Six terms afterwards the plaintiff' uiovtl
,to amend the judgment by granting a new (ria!,
on attidavits that no leave was re.served below ti
enter such a verdict ; but the court retn.sed (,,
interfere, /tnhiiisnii v. Ii'nni'ii , "JO (}. B. l.'70.
rpon an action on a bill of exchange iig.iiii;:
(h(> drawers ancl acceptcirs, the phintitl's mi tli:|
I'Jth of .lanuary, IS.VS, entered a joint judgimiit
ag.'iinst all the defendants. Suli.secpnntly
was arrested on a c.v. sa. ancl discdiarged, ami tli' I
plaintiH's, upon an action afterwards briuii.lit
against one of the other defendants, to avoiilanv
dilhcidty that ndght arise by reason of tb I
joint judgment, aiiplied to amend the juclginentl
roll by making it a several judgment again.st tk I
defendants : Held, that the application, wliifli
rested entirely upon the discretion of the ccuiil, I
not on any powers of amendment eonferrccl l.vl
the('. L. I'. .Act, was too late. l/iuiiiltnn \
/folronili, 1-2 C. I'. L''J!).
.ludgment in an action against executors, w!i
pleaded only iiaynient, having been by niL-itakr
entered and (execution issued against defencLiiiti
as executors to be levied of the goods of testat'?
in their hands, et si non dc lionis, propriis, (litl
judgment ancl execution was, under the ciroiiii-
stances, amended on ])ayment of costs, and tlif
li. fa. lands set aside, leaving the plaiutill's to
02
t>ral otlipr
liorlilnvi
>sRe(l mnn-
intuil, iiml
it, a.i il 111
II (Irl)tanil
[ir\ iillfiwtil
t lit Clint 1.
rit lii.i vir-
iiiil entiidl
II ca. Mil. il:
r.tf.l. Til,
mil allmviil
t.;. EilUmi
,ny. lJ,<n.l.
W^ til'-' illlt-
■oata ill till-
{ (kt.t aivl
7.S V. IMlli.
,, ('li:inili. -
ly taki'ii liy
I, as admin-
iHcts qiianili.
Willis, iiliouH
that certain I
(ir plaiiititti
liangfd tlif.ii I
. Ritrhh
'.— Hichaid
M. corri'ctly
stake ii.'imtil
H Ell nil nl M
MrXiill[lli>"ii,
Hnliiubnii.
|t, the (,t. li
ict for (Icl'iii-
liiiititi' iiKivfl
r il iif.'\v tri;i!,
■veil lidinv ti
t ri'tuscil t '
>. B. -JTO.
liingo iij^,uii.!|
liiitiiVs nil tli:|
|ut ,juil;;iiitii!
Huciitly I*
i-f^cil, ami til'
[irilj liriiiijilit
ti) avniilaiiv
lllHOU 111 tll-
hc juil^inHi;
I aj^aiii.'t th; |
|[itii>n, wlii'ii
)f tlic I'liiirt,
■Diifcrn-il I'V I
\lliniiilliiii *
RCUtorn, Mil'
l\ hy iiiistaktl
It (Icfouiliinl.'l
lis of tcstllt"!
llHoiiriii', til!
tlic circmnl
bsts, and tilt
Iplaiiitilfs tf'l
93
AMENDMENT AT LAW.
94
hy rt'iuiciiis;
\. witii intiivst ami slicrill'M
■take out a new writ against tluffinlauts' lands.
iPm-ii;,' y. H'lil"!'!! '' "'•. •'< •'• !«• -•'<•
■ 'I'lie iilaiiititt' liaving declared against defuudaut
latt txcciitrix, and o'ltaincd jiidgincnt hy default,
Ibv mistake entered it and issueil execution an
laLMiiist lier in her own rikdit, and on discovering
Itlii' error iihtaiiied an order to amend tlie judg-
Imeut roll and ti. fa. no as to eorresiioml with tiie
lileelai.it inn. tlnimition to set aside this order
at tlie iii-'taiice of other judgment creditors of
Llefeiiilaiit a^ executri.x : -Held, any fraud or
icolhwiii" hetweeli the plaiiitill' and defendant in
Ithe !4iiit heiiig denied, that the apijlicant.-i had
, ijirlit to prevent or interfere with such amond-
■uieiit? and tiiat the fact of their judgments being
luiikiinwn to the judge when he made the order
n-^ imiuaterial. MrliKi'l.i v. Xirlmlh, .1 1'. I{.
01. (^1. li. .See also .Ui'iii v. S/,i,rf, I 1 ( '. 1'. 4;)0.
\'|l. \'KKIt[( T AM) I'usrKA.
A verdict taken for the penalty of a bail boiul
ended by the judge's note.«,
it to the sum endorsed on the ca.
fees. Cil/iii/liir
y. Slrii'inilH', I'l-a. l.'iS.
Where there is a general verdict for idainliU'
hu .several counts, one of whicii is bad, but it
kppears tlie plaintill elected to proceed on a good
UHiit at the trial, tlie court will allow the ver-
liet til he amended after motion in arrest of
Uih'liR'iit, without co.jty. (loiili/rlrli v. .l/i'-
5(,«;;ii'/, •-'»>• •^- -'I-'-
,S() where the evidence was appliealile to a
ciiimt only. Bntitlii v. Ihu-liini, '1 (t. S.
|14 ; Cliiiilinrk v. Mi-P/iir.^on, •_> (). H. ;{7!).
So if the evidence at the trial apply e(|ually to
be giiiiil and had counts, the amendment may
made. liiililiriii ip t. v. Hi iiilir<,iii, 4 Q.
3lil.
But where, in ca.se for waste, the lirst two
ounts were for voluntary waste, and the fourth
1 truver, the third being for permissive waate
ly a tenant at will, an application to anieiul the
ostea hy entering the verdict on the first,
oml, and fourth counts alone, was refused,
idence having been given on the third count.
^riiiiiiiioiiil V. Cirtliin:, T. T. 3 & 4 Vk-t.
Where the notes shew that the verdict has
en erroneously entered for the plaintiti' on
oth ciiunts, instead of for defendant on one, this
ay lie amended by the judge's notes, ('iti/
aid: V. /i,v/r-, 5 Q. B. (i3;i.
I Where a verdict has been erroneously entered
I line eiiuut, the record may, at any time after-
tan's, by leave of the judge who tried the cause,
) altered, and the entry niaile on another count.
J/,„„vr, Biiijil, 15 1'! P. :^\'i.
I The court will amend a pnstea by the judge's
ptes, and a judgment by the postea, after
pial allowed, and reasons of appeal assigned,
be vcidiit being general for the plaintiti' on
ttiits reserved, and the postea franiud as if the
Beral issue only had been pleaded, without
tiling several other special pleas. Hochh-au
.llul,i:ll, 2 O. S. 31<t.
[Where a verdict has been given in a district
Urt for a .sum beyond its jurisdiction, the pluiu-
miy cure the defect by entering on the
record a remittitur for the excess. Thowax v,
J/iliiii-i; 4 (,). B. '>-21 ; Jonlnii v. ''«//;•, 4t^ B. 5.1.
Where a verdict wan taken by mistake (or
t'lOO too little, and levied umler execution, the
court refused to interfere, tlie defendant opjios-
ing the application. '/'In- limil nf I'lijnr ('niiiiiln
V. Curhrlt, •.'! (^. 15. (!.").
Where by mistake a verdict for a certain
amount is entered on the record, and the foreman
of the jury, before the jury separate or leave the
box, points out the erroi, the judge is right in
correctiiii,' il. Mum-'- v. limiil, l.'t (_'. \'. ol.'J.
\lll. Imikkn TAi. l'HO(i;r.i)iN(is.
1. Ajlhliirll-i.
Amendment allowed by insertion of names ill
jurat of two persons sworn to same allidavit.
/■'i.i/ii-r V. Tliiiiiir, ."> (I. S. ."il3.
In Christian names of ]ihkintill's in aiiidavits.
lii,M- V. CiiiiL-, 1 (»». I'., ."i ; Uriml v. '/'iii/l,ji; '_> if.
H. 407 ; /liiiiirliiii,,/, V. r,(.v, | f. |{. '2\n. l\ ('.
; - Richards.
2. /liil..< Oi'i/,-
iiiiil S'lDinihiii.^i
Ihile for costs incorrectly intituled, amended.
liiiZ/y. Ati-Knr.li, T. T. TVict. P. ( '. Macau-
lay.
In intituling of rule nisi in the cause. Uull v.
Miiri-iirJi; I Q. B. 4I'_'; Hililinl v. Ju/ui^full, I
y. B. 40;{ ; (n-iiiil V. Tiii/lor, •_' (). B. i07.
Where a [larty takes out a foiirday rule im
the Wednesday before the end of the term, and
neglects to serve it till Friday, the court will
not allow him to amend his rule so as to make it
returnable on Saturday. II nut, r v. Tliitrt/'lf, 4
il li. 170.
The court can amend a nLsi prius order of
reference after it has been made a rule of court.
/.((//(•/V V. Riiy.i>-ll, I l*. H. (ir..
Where a suninioii.: to pay over was argued
on one day, and jiulyinent deferred till the next
day, when the ^-ummons was made absolute (the
garnishee having died during the interim) on aii
application to set aside the order, on the ground
that it was nude after the ju'oceedings had
aliated, by reason of the death of the garnishee,
leave was given to the judgment creditor to
amend his order nunc pro tiiiic, without costs,
the delay being the delay of the judge and not
of the party. Wki-iI v.' I'miro, it L. J, 244; .3
P. H. 210. --C. L. fliamb.— A. Wilson.
Of summons and rule, in the reference made to
papers tiled. Ji,' Umioit, 4 V. P. 2:i". -Ohanib.
-A. Wilson ; /// /-.- Alh-n, 31 (^>. B. 458.
3. (>fli:-r M.ifter.'i.
Defendants had gone before one Allan, who
was bona tide sujipojed to lie a cominissiontr for
the county of Lennox, ;ind acknowledged a recog-
nizance : -Held, there wa.s no cstojipel ti i prevent
the defendants from ili.-piiting the authority of
Allan as con«nis:-ioner, and that the court would
not favor an amendment for the purpose of shut-
ting out evidence, and by estoppel preventing the
truth being known. Miict'drhim: v. A lluii et al
a C. p. 49(5.
I: »
Vh
i 1
r
•l^'kiJ
00
amknd:\ii-:nt at law.
'jc,
m
A bail )>ii'<'(< ill M'hii'li tlio iibiiitiir oi'ili-fi'iulaiit ^
is iiiciiriri'ily ii:iiiit'il iirty I*.' :iiiU'iiik'il willi tin'
riiiiMriit (p| U'lf liaii. I>,i',ihll w .hnn- ■^, '^ W \\.
I'.l,"). I'. ('. .I..1US.
It tliiiMlj;li lili«t:liii' nil ;itt(ii !H V lie iliii\ iliil
an I'l'i'iiiicciiiM liill, liu may liy H|K'>'iiil a|i|ilit'atii>ii,
nllc« ilij; iliMlly linw till' liliMt.ll.L' ll:is alifU'll, lie
alliiui'il til aiiiriiii it III' lUlivi'i' aimtlu r ; liilt lint
of liis own null' mot inn. /// Hi l>iirii, I l„ .1.
\. S. 'Ji:t. ' '. !.. Cliaiiili. li'ii'lianlM.
A iiiitii'i' 111 acliiiii til a jiutii I' III till' luai'i',
inlitnli'il in lliu wioii^' t'oiirl ; llilil, imt aiiunil-
ulile uiiiliT lilt' Ailniiiii.ttiatiiiii ol' .liistii'u Act,
I87.'». M.'Cnin, V. r<,lrii, 10 l„ ,1. N. s. lo:.,
('. I,. Cliaiiili. halt.Mi, r. r. ,i /'. j
'I'Ik' I'i'latiiiii, in a riiiiti'stt'il iuuiiiri|ial I'll! limi
I'asi', oinittril til state tiiat tlii' li lutm' wa-t a i an-
ilidiiti' or Mitcr. lint tlu' tai't was statnl in mii'
of till' alliilavits liU'il : llclil. aiiirliilalili' illnli'l'
till' AilniiniMtiatinii iif .Instil'!' Ait, IS7;!. Hut'iim
.r /•-/. <n!<Uhi V. Chiirllui,, 10 L. .). N. S. 10,'..
('. I,. Clianili.' haJtiiM, ' '. r. ,c /'. ,
of lli^ ii.iyiii;; till' t'ii>'t,< of tlio trial, till' rulf t.,
mt aniili- tlio \viilii't, ami tlic a|i|ilii'.iliiin i,,i
li'a\rtii anu'iiil llUfii'im \, '/'/ir t'lu/ntriiliiiii „
III,' I 'if, I,,,- r.ii'uiila, o'i,. ,1. 4\. C. I,. Cliamli,
iMaiH'i',
Wlii'l'i' till' |ilaiiitill .'.liiilii'il to alni'iiil Ills il,.,
I'lai'.tlioii, till' ilifi'iiilaiit wart alttu ullowoil to ai|i|
iiL'W [lira:!, Imt not as ainatti :'of ihiii'h.' A'k;/,,', i
\. /'i.i/.s-l', II. I.'I.I. I liauiLi. Koljimiiiii. '
Wlii'i'.' ail iir.':',nlaritv whh trillinj,', hiu'Ii a.s ai.
(iniis«iiiii to lill ill till' ilati' of tlio I'litry of jn,!
nii'iit fur ilrfanlt, an ami'iiilnii'nt was alluui i
witlmilt i'int'<. J);inli V. iJillllI, I I,. ■]. N.
•j;i!>. ('. I„ Clianili. Ilii'lianlx,
l.\. I'nM rni:.
I. '/'i rill ' nil il/luir'iiii/ .\ III' hi/llh III,
II a lU'i'laiatiiiii Ih' iliawii up in a .'liivciily ami
ciirt'los.'i Ktyli', till' I'otirf, altiinni;!! r\|ii'i'ssiii;; an
o|iiniiin ill fasiiiii' of tlii' |ilainlitl un il. iiinri'ri', will
fii'i|iniitly iliii'i't liini to anii'inl .lillmnt I'o.st:).
Miir/ilii/ V. Hiinili'iiii, •_' (.). \'>. '.'lil.
III ti'oviT for a waj,'L{on lliu iilaintill' olitaiinil
li'avo to aini'iiil his ili'ilaration at iii.si jiiiiis, liy
limiting,' Ill's artioii to two of its v. IhiIs, Imt liiil
not ami'iiil, ami );iit a viTilirt. Tlii' (oiiit, mi
^'I'aiitinj; a nrw trial w Itlioiit I'osl ^, against w liiili
no lansi' was slii'wn : llulil, tli it tin' aiiu'inl-
uit'Ut slioiilil lia\t' liiTii inaili' oiilv on iiayiniiit
of fosts. ,i/i/i/;// V. cii'ih-i i-s, i; g.' i'.. •jiiii. "
Wlii'i't' aftiT a I asL' lias liii'ii iiiaili' a iiiiiain I,
ili'fi'iiilant lias juil^inriit agaiiiit liiin on liiiniir-
M-r, anil li'avi' is uianti'il to aiiirml, lie sLmilil
pay only tin' to.'-ls of tlu' (linniiiir, not of tlio
ll:
.l/.'Ai,
V. ».';■',,„,,
( >. l;. wii.
day.
I'laintili' .'iiiiil iiiioii a liuiul to pay inniiiy liy
instalini'iit.-), alleging iionpaynu'iit of an Instal-
nicnt ilui; on 1st August, IS.'iS. It.fi'mlaiit
pleaileil. 'I'lie cause was twict' trieil. On tlio
tirst in'oasimi a \erillL't was l.iki'ii for plaintili' in
the absi'iic'i' of ili'fiinlants, fioin wliiih plaintili
was ii'lii'Vi'il (111 payiiunt of i.'iist:i. • In tlif sii'imil
OL'i'asion a viTilict was also ii'iiili nil for plaiiititt'.
'I'liat viTilii't was aftLTWanl.i iiit asiilo, on the
groiiiiil that the instalinent due on the l:-t
August. KSfiS, was proviil to have been sati;'titil.
I'lanitill' afterwards apjilied to amend his deela-
ratioii liy alleging iiiiii-payiiK'iit of the instalment
wliieli fell due on 1-t Kehruary, I.S,">!(. This
was granted, Imt only on payment of the costs
of the last trial, the rule setting aside the viidict,
luid the costs of the application, raynieiit of the
costs of the tirst trial wa.s not reiiuired, imwrnnch
lis the verdict then passed against defeiiilants
solely by reason of their own default. J/imb r
V. aliiiMi; !» L. .1. 44. ('. I.. Chanib. -Draper.
Where plaintili' obtained a verdict on evidence
which did not sustain his decliiratiuu us framed,
and that verdict was set aside, he was allow'ed
to amend his declaration, but only on the ternis
•J. O.'llPV f'll.lf.i.
\'i 111 ir a •Icfeiidaiit, after iudgiiii'iit on di'iiiui,
I'l'i', was allowed to aiiieiid uii payment of costv
whii'll \>ele lint paid, the llllc was lil.ldi' abfiiliit
to enter the iiidgnient fill' [ilaiiitill'. Shiiiihi'\
Aiiiiii., !•;. T. ;i Viel.
Where, after a rule tocoimolidate, the plaiutiii ;
had leave to anieiiil his declaration by iiicieasin.
his damages: Held, that it was not iiece.i.sai,
to serve the aiiHiided declaration nor a ii. i
deinaiid of [ilea. h'l Irliiiiii v. Iliiiiiillnii, [■'„ \
•:. \'iet.
Where the pliiiitill', after notice of trial in an |
action of debt, had leave to aiiiend one of tl
coiints, and not having Hcrved the ameiuli
ilerlar.itioii iinr any new demand of plea, sign,
interloeiitory jiidgnieiit, and afterwards eiitiii.;!
lilial jiiilgliiL'iit and issued e.M'elition, the jir..
eeeilings Were set a.iiile. I'ltiiililll ij. t. v
Tifj'j'iii, 1 ( ). ^. •_'.
Seliible, where a ileel.ii.itioii is amended in ll.,|
name of the pl.iiiitill', it i.-i siilheieiit toaineinltlr
deelaiatiiiii liled, w itiioiit li ling all amended m
//'(,'/ V. /.'-i;//. , (». ••-;. III.S.
.\fLir argiiiiieiit mi di'iniiricr to the deiliril
tioii, the plaintili had leave to amend on pav
iiieiit of costs ; but before any aiiieiiiliiifii:|
defendant iibtaiiied a rule staying proceediiijjSi
the laiise on pay ineiit of the costs of the caukl
Defendant allerwards, and without paying.;]
Ia\iiig those eiists, nioved to disi.'hurge the plaiil
tills rule to aiiieiiil, lii'c.iiise the aiiiendnieiith);|
not been made, nor costs of dcinuircr paill
The court discharged his rule w itii codts. //.■'
\. K.ilh. •_' o. [',. idO.
.•\fti r all aiiK'ndliii'lit defend.ilit had two clei'l
dav"' to plead to the aiiiciided dei laratiuli, lil
tin" •_M..t rule of il. T., ISoO. After two ilavsf
if defendant had not aincndcl the \<\i\\ 'H'li
take any '■tep which the then stai
will warrant, and such step >
defendant's right to amend ; I ..J ttti]
defendant might at any time anii Hufi-
Kliiii; 1 I'. U. !tl. F.' C. -Drapei ' ea uti
V. I,, v. Act, s. 117.
When defendant obtains an order to ma
the dei'laratioii by inserting his right name, d
plaiiititi' must see the amendment made both;
the copy tiled and served, and the time to jJi
will begin from such auienihucnt ; but it ist]
necessary to serve a fresh copy :- -Seuible,
ever, that a new demand of plea is requiffij
DiiKjiinui V. Ktet/aii, 1 P. 1{. 135.— Chiiffitf
Burns. See nowC. L. P. Act, a. 117.
%
lie nilf t.i
ILMlioll l.il
iitn'tttiun ',1
CIlUllili.
•nil liU lie- 1
wuil to IliU
ubiumni.
, HUi'li :w ai.
;ry of jiiil;
,'11!* illloUl'^l
L. .1. N. ^
il on il(;uiiir.
rllt of (.'nst.,
i.uli! iil)Milm.
SL'iiiiii I- V
, tlio \il;iiiiii;; .
l)y iiicrtMsiii.
Hit lujui'sdarj i
nor :i in-w |
iiiilliiii, I''. 1
iif trial ill :iii|
(I OIU! of tllf
till' iiineiiil"!
• lllull, .sigUn;
variU I'liti Ti ,
,ion, till- III"
'nil «!. t. 1
nu'iuU'il iiiti.
t to:lllU'lllllll:|
iiiii'niU'il I
1 tilt' ilt'daril
|iieii(l oil pii
iiiueiKliikii;!
kiroL't'i-Mliiigs.l
(if the cuustf
Hit laying'.
|;irve the iiUilI
iii'ii(liiieiitli).l
tiiiiirrer ijaiif
li .'(idts. Ikl
li;ul two cleiil
lei'hinitioii, k|
Iftei' two lian
jplai 'irt'n
a tM
(lur to auki^
ht uaiiK', I
riiiailo Ixithil
I time to (ill
, but it is 1
f-Semble, ti'
lea is rcquiiisi
15.— Chan'.!'
1117.
liii),'
itii.
197
\fti'i' four tiTiiis have claimed itinco tiio laHt
BriK'''<'il'"K> "" i"'!'''"'""'"' <aiiiiot 111' luadi! in n
RetUiiitioii without 11 ti'iin'H iiotir.'. /h,, ,\.
Wlii'if a eaiiKi' hail lieiMi takiii ilowii to trial
nil «itliilii>«l', anil in the I'liMiiiii^' til'lii ti rule
lor imlt'iiieiit an in la.-ii' of .i nonsuit was (lis-
Bhuriji'il "1"'" ^'"' l"'''enii>toiy nnihTtakin^; ami
iviiiiiit of ciiMtj*, anil the pi lintill' afteiwiiiilM
Ibtaiiieila jiiil.!,'e'H miler to anieinl his ileelaration
In iiavniiiit of eosts, uihI witliout iiayini; the
Lwts 111 lii'tli eases serveil ilefemlant w itli his
Beliiliil ileilaratioli, the eouit set asiile the
iif tile aiiiemleil ileelaration with eosts.
M,i,hlnd' y. Corl.r/.iQ. n. •-'.".
On a varianeo between iiroof and deed deelured
n eiiiiiisel II. list ileterniine at the trial whether
liev «iil aiiieiiil under the st.itiite ; leave eaniiot
reseiveil to aiiiulid the reeord afterwards.
fch'iti-l'iiii V. Itiuwii, 5 CJ. 15. 471.
Till' siiiiiu'oiis to aiiK'inl a ileelaration need not
Bcil'y till' aiiieiulnient. It is siillieient to nien-
on it ill the iiiitiee of the intended a|i]ilieatioii.
D(('/i V. P'l'Hii, I ('. L. ('liaiiib. I7.">. Maeaii
I A li.irty iiiiviiij,' leave to amend his replication
mint lile a !<(iecial ileniurrer in lien thereof.
won html V. ' 7i</.<« , 7 y. H. -•")4.
I Servile of aiiieiided dcelaration withont pay-
Mit or tender of costs as orilered by rule
mtiiig aiiieiidiiieiit, set aside with costs.
Dimw (•'oiiiliri',\>V. L. (-'hanib. l.')8. - IJunis.
IWiiere the true state of facts waa not laid
Ifuie till' judge who made an order for leave to
_eiiil pleadings, he rescinded his order. li'ar-
tk\: I'olhr, H L. J. 47.— C. L. Cluunb— Draper.
iTlie phiiiitilf having obtained an order in
Hubert for the aincndniunt, and not having
aili'd himself thereof, because the cunditiun of
niieiit of Costs was annexed thereto ; upon
dicatioii to amend at the trial, the .judtfe in
i discretion refused it. Iloob r v. (iamble, 13
I P. 4U2.
^hire an application is made to amend a writ
[other proceiiliiig by reason of anything con-
ned tliereiii oi omitted therefrom, .such writer
er procceiling, or a copy of it, must be brought
Ifore the court. Attorney-Geiieru! v. McLach-
,5 P. K. U3.-P. C— A. Wilson.
Hieii an order is made giving leave to plead
1 demur to the declaration, with permission to
I plaiutitl' to amend within a certain time, but
"hoiit any express stay of proceedings, a plea
irinr r hlcM and served before the expira-
time irc irregular, and will be set
at TiiijLr V Unmd Trunk J{. W. Co., G P.
|»iid 10 I. J, N. y., not yet reported.— C. L.
I 'on, r. C. d' /-".
X. Ml>;CELLANEOUS CasES,
kiceedings taken contrary to rule of court,
Bot be supported by a subsequent amendment.
Id. Bunihuw v. .biwwo '-. 7 Q. B. 598.
ueiidnifut of convictiuu. Jferjiiia v. J{oss,
3 Viet. In re Watts anil In re Emery, 5
•Jti7.— Chamb.— < iwynue.
[ coroner's warrant on habeas corpus. In re
mkkiel, 10 I.. J. :«.-.. -C. L. Chamb—
btr.
AMKNDMKNT IN EQUITY.
08
In partition proceedings, hi c Kiiinrli.i unit
/'o-,/, •2Hi. H. 311.
Of inilictnient. I'nriiiriill w h'l'ilnn, 'XM). It.
lOli; /i'lyiiniw ./•k-Lioii. I!M'. I'. -JnO.
Senilile, that if material evidence be given
before a magistrate, hut unintentionally omitted
from n return to a certiorari, an nnnmdmeiit may
be allowed to supply it, but only with the eon-
eiirrenee of the parties and of the witness by
whom the deposition was signed in the correct-
ness of the ailditioliN ; but it cannot be snpiilied
by allidavit. I'li/nin v. MrXniiri/, ,"> I'. H, 4M8.
-Chamb. -A. WiLson.
(tf information before a Magistrate, //i re
; Voiiklin, :U y. M. I (10.
I
Of election petition. In rf Kli-fl'ittii fur ('mint i/
ojMimrk, 3'-M,J. M. 147.
II.
III.
IV.
V
VI,
AMKND.MENT IN K(H'ITY.
Ok Bills.
I. After AnMWfr, 98.
'2. After Heplieution, 99.
3. At and nftfr the lifiuiiii/, 99.
4. After Dect , lO'J.
5. ('o.^<l.^, 102.
<;. Practice, 103.
7. Without itrejmHre In /iijiiiieliun, 104.
8. Other Cane.'i, lO.'i.
9. By addinij and xtrikinij out jxirlien.
(a) In Foreclosure Sails See MoKTtiAUE,
(h) Other Caaei — .SVc Pi.eaijimi is
KyiriTV.
10. Supiili mental. Bilii- See Pleadinu in
EQUITY.
Sri'ILEMKNTAL AnsWKR—.SVc PlEADINU IN
Eyunv.
Ok Decree, 100.
1. In Foreclonure—See. Mortuaoe.
Ok Master's Report, 107.
MiSt'ELLANEOUS CaSES, 107.
I.N Particular Actions.
1. Interpleader— See Interpleader.
2. Foreclosure~f>ee Mortgaoe.
VII
VIII. See also the Several Titles.
Rectifyi.nu and Varyino Deeds— ,S«(r
Deed.
I. Of Bills.
1. After Answer.
A motion to amend is no answer to a motion to
dismiss for want of prosecution. A plaintiff
moving to amend after the time limited by the
ninth order of the Court must shew that the
order could not be complied with, even with
due diligence. Mc\ab y. Gwynne, 1 Chy. 127.
Where the plaintiff's solicitor absconded
before the time to amend the bill as of course
had expired, and his departure was not known
to the plaintiff till afterwards, and due diligence
appeared to have been used by the plaintiff, the
il
-
99
AMENDMENT IN EQUITY.
100
ri
I '
court granted leave to amend on payment of
costs, ('(iriici/ V. Hiiulliiii, I C'liy. A'l'X
Where tlie state of facts maile by an original
bill does not exist »vileu tlie defendant an.swor.s
the plaintiff cannot amend, so as to l)nng in
other facts to keep the bill alive, but must tilo a
new bill. Vltji Jinn,': v. Aiii.->,!iii, 7 L. .). '-".W.
A bill was filed against three defendants, A.,
B., and C, one of whom, C, was tiien out of
the Province. An order was obtained for leave
to serve C. by substitutional service on A. aiul
B., for the purpose of amotion for injunction.
A. and B. answered tlie bill, but (.'. did not; the
bill was then amended, ami notice of motion for
injunction served on A. and |{. for themselves
and, together with the bill, on tlirm fori!, under
the order for service. After the motion was
disposed of, the plaintiff took out an order dis-
missing the bill against A. and 11, and on the
same day an order to amend, under which a re-
engrossment of the bill w.is liled, and served
personally on C. This order to amend was
styled in the original suit, and worded to amend
the " office copies" of the "defendants :" — Held,
that it was a second order to amind after
answer, within the meaning of order '.), of June,
1853, 8. 12, and it was, on the ai)pliL'atiou of C,
discharged with costs as irregular. A'l///// v.
Junes, 1 Chy. Chaml). 37-1. — Spragge.
A plaintiff will be allowed to amend even after
twenty-eight days from filing the answer, where
he has been delayed by defendants not obeying
the order to produce within proper time. Airlii-
bald V. JIuiit'i; '2 (Jiiy. I'liinib. 1277. 'i'aylor,
Secrelari/.
After answer, liberal add'Aiun to the bill by
amendment, retaining the original allegations,
is proper, even thougli rendering a new defence
jiecessary, and the costs of such amendment are
proper coats in the suit. JhO'i.'/irnn/ v. Mi-i'un-
key, G R «. rjG-rhy. Chainb. -Blub;.
•2. Afl^r R iAl:ai:un.
An amendment of a bill after replication, and
long after bill liled, for the purpose of stating a
case of gross fraud, wdl not be alloweil unless it
clearly appear that the plaintiff or hij iiolicltor
did not know, and could not re:eionably have
discovered, before tiling the bill, the fai'ts upon
which t!ie fraud is grounded. W inn I -t "el: v.
yiwjuia, 1 C'liy. C'liamb. UifJ. lOuten.
The court may, at any tinu'. under jimpfr
circumstances, permit an auK iKlincnt of the bill
in furtherance of justice, and upon «ueh terms
us it may think lit to impose ; but to obtain
such indulgence, tin' plaintiH' must satisfy the
court by affidavit of the cause nf the <lelay, and
that due diligence has been usnl in the prose-
cution of the suit. Kerr v. FiiiliUHnii, W Clij".
Chamb. 407 . Taylor, li<J\r, i .
3. At and tij'lir lite hiar'ni'j.
In what cases allowed under the order of May
1850. Street V. Jloiiel.uoiii, 3 Chy. I'_'8.
The court, though it 1 1 fii.-t;(l to set aside a
purchase on the ground of fraud in the vendor,
gave leave to amend the bill alleging over value
us a ground for relief. J'" v v. Hiltrorl:, t» < 'liy.
418.
The provisions of l.'l & 14 Vict., c. Gil,
apply only to judgment creditors whose judg-
ments have been entered up since the 1st (pf
January, 1S51. Where, therefore, a credit(]r
whoso judgnnent was entered up in the year
1830, and registered in 18.j-t, tiled a ])ill in I8.")(;
to set aside a deed executed by their debtor tn
his son in the year 18.3."), as having been done t,
defraud creditors, or as being voluntary, aiul
therefore void as against purchasers for value,
the court refused this relief, but gave the plain-
tills liberty to amend by making the bill a bill
on behalf of all creditors, and praying for an
ailministration of the debtor'.i est:'.te. (/<//; /-iV v.
Viiiit'j(jmiindt, I) Chy. 53.3.
An application to .imeud at a late stage of the I
cause cannot be graiite<l if it incur any risk oi i
injustice, notwitlist:iiidiiig the pr.actice eatil
I lished by order !(, section It, ot the order.^j h\ ,
1.1853. Aitelii<t,i V. r,;„;///,x, (i Chy. (i-1.3.
The puivha.s. r of land having tiled a bill for:
a specitic performance of a parol contract, tiu- ■
court refused relief, the i)arol contract liaviii.
j been merged in a written contract, but otti.ioi
j the plaintiff, at the risk of costs, permissimi i,
I amend by alleging the written contr.ict. .1/.
('riiiiiiii V. ('nur/iird, l) Chy. 337.
In a suit instituted by an administrator wiii I
the will annexed uiion a mortgage, the defeuilai!
produced a release for the mortgage inoutvl
given by the testator in hi.j lifetime, thereui»jiij
the plaintiff sought to be allowed to pioauj
against the tlefeiidant as a creditor of theeat:itt,
but as this would inv(dve such an aineiulmeutajj
would create an entirely diU'erelit record, tliJ
court refused such permission, and disniisscLltttl
bill with cost i. JJiirnll y. (.'ro.<tliiiMite, '.Ul\\
4-.'2.
Where in a suit for redemption the defeiuhiiJ
sets up an absolute conveyance by wayulaiif
swer, to which the plaintiff simply liles a repLI
cation, without amending his bill to iuiijeicil
the conveyance, he cannot do so in evideuoti
But the court, under the circumstances, gau
the plaintiff, who had purcluned from the allcirj
mortgagor, liberty ti^ amend. J'iitli('/sun:\
MiilhirJ, 10 Chy. "l30.
Will re a l>ill was liled to !;et aside a ci.iiivi!;|
ance as ha\ ing been made to hinder eredituiil
on giounil.j vUueh the plaintiff failed to uubataij
tiate, but the e\iden(,e of the grantee hiiii
shewed tiiat on other grouiuls tlie plaiiitilf »i
entitled to relief, at the hearing leave wa3j;nii
him to amend setting forth such grouiulj, uuiJ
decree was ma'.le in his favour, but, uirIci' tltl
circumstances, without c.jsts. ll'd/.-io// c. .1/' f
till/, 10 Chy. 41 (J.
The court, under the pei uliar circuiiiataM
of this ease, lefused a ilecree in the existing .sluj-
of the bill, but gave leave to amend, witlic
costs. Cuiiiiiiiijhiiiii \. ('iiiiniiK/ldiiii, 10Cliy.-l.!J
Amendments may be made at the lieariiij;
causes under tiie new practice as at i.i.i [i
I'raser v. itinlmii, 1 1 Chy. 4"_'0.
I', being in insolvent circumstances, ami i
to obtain in his own name a lease of certain rr.|
estate which he had previously had a lease
procured one S. to apjily for and obtaiiiwl IrJ
the owner of the i»rcperty a leas(^ to him, 'I
under an agreement that I', should coiitiiiiiff
100
t., c. GH,
lose judg-
thu 1st i.i
I ci'cditdi
the year
ill ill 18M
ilebtiir to
cu iloui; t.i
iitivry, aii.l
for valuf.
J thi^ plain-
, bill a l,ill
/iiig for ail
stage of tlie I
any risk ui j
utiuc obtalj-
le (inleiij 111 I
tl a bill fur j
■oiitract, tilt \
tract liaviiij ^
, but oti'erol ;
lenuissiuii t^i
iitract. .!/■
islrator \viiii|
the dcfeialaii!
tgage uitiiitv I
ue, tho^ria^«J
il to \)ioi.'w.;
■ of the fstatt.
LviueiiilmLiitaiJ
it rooorJ, tl]<|
I dismisseiltlKJ
liir.iiti; il('iiv|
tho tlefeluUn;!
by way ui ail
y lilua a ix'pLl
11 to impcul
iu cvideu*!
latauct-'ri, ga'.<
nil tlio allcitl
Filll'lp:''
.■iiilc a coiivei I
liilur ('redituiJ
llcil to ^iuliitail
■antoi; liim
L" jjlaiutill"*
javu' waajjiiiil
^rouuilj, aii'l^r
Lilt, iiiiiltr tL.|
It.io.i r. M '
(.■iri.'UUwtiiK'ill
I existing sli'li
lliell.l, «ltli-|
|i, ioi'Iism:!
the lieariud
at i.i.i V"'"!
ues, anil ""■■■'
J of ciTtuiii r
lad a li^:'**
1 obtaiiiwl IH
to him,'
Id coiitimif'-i
101
AMEND.AIENT IN EQUITY.
102
i work the same as a nursery, and from the jirohts
reimburse S. certain advances and also jiay a dclit
due by I'- to him, and tliat I', should retain any
balance for his own benefit. ( »ii a bill lilcd by a
creditor of P. .seeking to have S. declared a|
trustee for 1'., and to have liis interest sold :
I jjpid that althtmgh there wa.s no resulting triu<t,
I nor any trust manifested in writing, ftill that
IP had sucli an interest under tho lease as could
Ibe rca-;hed in this court by an c(|uitable e.xccu-
Ition on a proper ease being made for such relief :
land to enable the plaintiH' to make sneli a case
lleave was granted to liim to amend, witli liberty
Ito the defendants to s))oak to the cause after tlie
neudnients made. Toiii-i v. /'<<■/•. I'J Chy. ;U.">.
Defendant, by his answer, set up a coinpro-
Imise of the claim, and prfivod it ; whereupon
Ithe plaintitf asked leave to amcml i-i order to
Imptach this settlement. The court grani"d
Hhe leave on payment of costs, but witluuit the'
icht to use again the evidence which had been
Itaken. .l/c/"'.'/'"'' ^'- ('''nici'ini, 13 t'hy. 47r<.
V bill to restrain certain of the dcfendant.s
Iroin clo.oing windows looking acroFs a lane of
which ]>laintifl' claimci' to bo the owner, wa,s
nended at the hearing by striking outtlint part
blaiming title to the lane. /jV,'/;/"c v. A /'mi, lo
Chy. 3.fs.
Where the jilcidings and evidence were not
ueforc the court in a satisfactory .';!iapc, and,
Kideiicc on both .sides having lieen rejected
Il immaterial, the result was not salisfaclory,
leave was given to amend on payment of Ihe
Kstsof the hearing. I'oitl'ntx. E'lita; 10 Chy.
(1. i
The plaintilV h.ad purchased eert.iiii mill pre- i
lisos frmu ('..and afterwards sold tho same;
he hill alleged that on the sale ( '. had .Tgrocd
J arof|)t the sub-purchaser as his debtor for the
npaid purcha.se money, and to disrhargc the
Taintifl. At the hearing the ]>laint ill' failed to!
—tahli.sh this agreement, but there were rtibso- ;
loent tran.sactions by me.ans of which also the !
jaintifl' claimed at the hearing to have been j
lischargcd. This crounil of relief not having i
icn stated in the bill, tlic plaintiff h,ad liberty
I amend on payment of tho costs of the day.
ilhn V. Xaniiait, 16 Chy. 607. I
After a bill hacl been tiled by a judgment !
tditnr, iiiipcaching certain dealings between
'sdelitorand a vendee of tho debtor, the plain-
Tallowed the writ against lands to run out fori
HP time, hut sul>Rei|ueiitly renewed it before
hearing :- Meld, not necessary to ameml
•tiiiL; this fact, and that it.s oxistinee was no
bjcitinn to the jdaintill' obtaining relief at Ihe
uring. Mi-I)ii}i<il</ V. MrLuiii, l(J Chy. (Km.
1 Li-avo to .;inrnd is, at tho hearing, granted in
irtiiTanie <if justice, i 'un/: v. Jinui, 17 Chy.
lli.l.-llit fur speejlie |perr<il'lll.-|lice, tile e\ idrlic"
tvniu' iKaily estaldislied the liargain a.s alhgcd
' till plaiiitili', thoiigli Ills bill omitted to state
: Il rill" and mode of payment as agreed ii]ion,
"'lit enered him tiic .lUcniative of taking a
ti |n|- s|ieeilic perfoiniancc, witli payment of
lii-i' nnuiey in hand, or to atnciul his bill
■tlliii; up tlie o.v.act ternui of hi;< buigain.
W/i".,i/v. 1(7.(7., 18 Chy. 1.
[Till defence of the Statute of l.imitatioii.s
ill alldwed at the hearing to be put in by
supplemental answer : Held, on rehearing, that
the plaintiff .should have an opportunity of con-
troverting this ilefencc. Mrhihiir v. The Can-
mill Vuiii/iinii/, IS Chy. H()7.
At the hearing of a cause the plaintiff was
held entitled to a decree on the ])leading8 as
they stood ; the defendant had omitted to set
u|i a defence of the registry law ; anil tho plain-
till' had for th.it and other reasons not attempted
to luiive notice : under these circumstances, the
defendant was aflerwarils allowed to set up the
new defence, on terms of jiaying the costs of the
form, r hearing. /'o.';<-v. c v. ('innjilicll, 19 (Jhy.
1!:5.
In a suit for jdiiiioiiy the particular act of
violence by the hiisb.ind was stated in the bill
to have oecuried on tlie liOtli of August, and the
evidence shewed that it ha.l been committed on
the ."Ist of that month ; - Held, that this waf? not
such a vari.ance as v ouhl disentitle the plaintiff
to )irovo the .let alleged ; and if necessary an
amendment wnuhl be allowed so as to state the
date correctly, as it could not be considered that
the defenilant ha.l been misled by tho mistake
in the date. Ui'ilwun v. l!ii,hmu>, 20 Chy. 428.
A plaintiff ^\ ill not be permitted to convert a
bill liy amendment into a new bill for different
relief. If in making such amendments as, sub-
ject to this re.">trictiop, he is justified in making,
a phiinlilV si rib ■< an/ allegations so as to render
tho answer to them useless, an application may
br •'■ ■■'' by the defendant answering forhiscosts
thu^ uimeces.snrily incurred. Such application
should bu made at the hearing. McGillivray v.
McCuiikc'j, 6 P. I\. SO— Chy. (Jhumb.— Spragge.
•1. Afi-r Do'irc.
'I'hi' iciiuL will not amend a bill after decree.
Uiinrit \. (•'iiyiliii); I Chy. Cliamb. ,144; Law-
)Y<.;o)i V. liii-L-!, )i, 2 Chy. Chamb. 331. -Van-
Kougl'.net.
(,!u ere : Whetlicr a bill e, in be amended .ifter
decree. It c.uiuot on an application ex parte.
JLlduk- tij Moiilrrri'. V. I'uvir, 2( hy. Chamb, 47.—
Taylor, Sccrdur;/.
i). (■<,.-<l.^.
\\']u:vv in (i|uilyan error o. ems in dr.iwingnp
a priper in a e.iiise, tho party applying to rectify
it must pay the costs of the motion. Emmom
V. I ■iniik.-', i ( 'by. .^."8.
^\'itll respect to the costs of motions to amend
under tho I3tli order of May, IS.'iQ, each ease
must ilepeiid ii|inii its partii:ular circumstances.
.\l',i!i ijiiiih V. Hub,-, 2 Chy. 42S.
If a plaintitr .nmeiid bis bill by striking out
]iortioiis so as to render Iho answer to them
iiseles.i, an a)iplieation may bo made l>y the
defrinliiit ;iii>wering for the costs thus unneccs-
s.iiily ill! iinril, and such an apidieation should
be made iit the iieaiiiiu'. .\fter answer liberal
addition to the bill by aniendment, retainiiif;
tin; ori;;iiial .dleg.itioiis, is proper even tbongii
rendering a new defeiiei' neees.sary, ami tlic costs
of siiili ameiidiii.iit are proper costs in the suit.
.\li-i;illirmil v. MrCnibil, \) \,. .1. N. S. 161. -
iChy. Chamb. hlake.
I .V plaintilV amending bin I dl after service of a
dLiiiurrer, and before it has been set dowii for
103
AMENDMENT IN EQUITY.
lOl
ii:
190.— Taylor, Referee.
An order to amend taken out pending a
demurrer, without providing for the costs of the
demurrer, was held irregular. Lmie. v. Cnwp-
be!', 3 C'hy. f 'hamti. 07. -Taylor, Secretary,
(5. Prncticf.
Where Ity the order allowing a demurrer leave
is given to amend the bill, and the plaintiff
neglects to amend, the proper course is to move
that the plaintiff do amend within a given time,
or that the orrler be discharged and the demurrer
allowed. Xrhoii v. Rahertnon, 1 Chy. 530.
A plaintiff submitted to a demurrer and
obt.iined an order to amend, by which he was
required to make the amendments within four-
teen days. This he failed to do, but took out
ex parte and served an order of revivor, the
demurring defendant having died after the expi-
ration of the fourteen days : — Held, that by his
failure to amend within the time limited, the
plaintiff's right to amend was gone, unless by
a special application he obtained an order
enlarging the time : that the bill was not, by
such failure to amend, out of court, without a
further order, but it was open to the defendant
to move to dismiss : that the plaintiff was not
w.irranted, without notice to the defendant, in
tiking any farther step in the caiisc before
m,".king tht .amendments, for which, in the first
place, the bill w.is preserved, and he could not,
therefore, issue an ex parte order of revivor.
Carr v. Moffnt, I,. .1. N. S. ,^2.— C'liy. Chamb.
—Blake.
After the expiry of the term limited by an
order to amend, the right of the plaintiff to
amend under such order is strictly gone, but the
defendant's right to object to amendments made
after the period limited may be waived. Walrr-
oiM v. Fiirrnn, 6 P. R. 31 -Chy. Chamb. —
Spragge.
Where a tnntion i.s ni.adc to amend the bill,
under tlie llUh order of Ma\', IS.'iO, a draft of
the proposed amendment must be laid before
the court upon tlio aj)plication, but it need not
be set out in tlio notice of motion. Aji/ileiiartl'
V. n,ikrr, 2 ( 'liy. 428.
The plaintitl', u|iun nmving, niu.st slicw, lirst, '
tiie tnitli of tin; ]iroposed amendment ; and,
secondly, its propriety and exi)ediency, with a
view to the ends of justice. //(.
An orilcr to .amend having been rdttained .and
served after service of a notice of motion to dis-
miss, was deemed a sufficient answer to such
motion. Ilill V. /////, 2 Cliy. (i!)2.
When it becomes necessary to revive by vv.iy
of amendment against infant defendants, tiie I
jiropur course is to amend simply in the first '
instance by making the infants parties. After i
that is done, if the infants fail to have a guardian {
appointed, the plaintiff may apply under the IStli
order to have a solicitor appointed guardian, and
in either case the plaintiff will be in a position to
move that the suit do stand revived. Kirkpatrkk
V. Fvwiudli; 4 Chy. 540.
A party by amending his l)ill iloes not pn.^t-
pone hia liability to be examined until after thf
time for answering the amendment? expirrs
Fowkr V. Boiilloii, 12 Chy. 4.S7.
The time appointed by the court for vacatior,
at Christma.':, is not excepted in the computation |
of the time for amending the bill. Order ,) i,
1853, refers to the long vacation only, f'oinioli
V. Montgomeri/, 1 C!iiy. (""hamb. 20. — TerSprayn^
after consulting with the other member;; of tlif
court.
Apart from any general onlern, thi.i court i r
permit an amendment of its own recordr, ;
that, though the order of 6th .lune, 18()2, may iint
provide, in some exceptional cases, for the iiiti
auction into a suit of matter arising sub-secjucn* '
to its institution, such matter may be introihictil
upon motion for leave to amend the bill. Bn'w'
V. White, 1 Chy. Chamb. 275. — VanKouglmet,
Where an order to amend has been taken mu
but, through inadvertence, not without preju(1i •
to an order pro confe.sso previously obtain..;
the court will grant such an order nunc pro tiiiii',
so as thereby to revive the order pro confi-^si,
Rattan V. Smith, 1 Chy. Chamb. 296.— Mdwa;
Order 79 applies only to copies order to anicn!, i
not to office copies of bill. Ti/roii v. Penr^,-]!
Chy. Chamb. 470.— Taylor, Secretary.
An order to amend obtained before serving tbl
bill, does not require service. Bol.iter v. ri„i|
rane, 2 Chy. Chamb. .327. - Mowat.
Where a bill had been amended, anil tk'l
affidavit was of service of " the bill," the r.mr.l
presumed the bill served was the bill as it str».l
at the time of service, /h.
Under an order to amen<l obtained on pr.K if,|
a change in the venue laid in the bill cannot t«|
made. A cause set down for hearing nt tin
county town named in the amendment, \ril
ordered to lie struck out of the list. Fr'nt.^rh \
Winkhr, 3 Chy. Chamb. 100.- Taylor, .Vmc,/»,
7 Wilhuiit jirijiiilifi III hijiiiirtitiii.
After service of an injunction the iil.iiiitr'j
amended his bill and .added a new delVnilanir
who Wiis a mere trustee for tlie ))Iaintitl', with"-
howevcr altering the frame of the l)ill ur ]ir;i\ i
Subse(|ucntly to the amendment tiie d< lVnilii:|
committed a breach of tiic injunction, aii'l:
plaintiff moved to commit the defeiid.iiit,-:
Held, tiiat the anicndiiu'iit was not a waivir
the injunction. MrDnin// v. MrKmi, 12(1
414.
Where after luitice of iiiotioii fur iiijiiiiitM
.and before the motion, the jilaintifl' aiiKii'ls!
bill, such .amendment is an answer to the iiiii|iii|
Mrlh)ii<ll\: SI reel, 13 Chy. UIS.
Tiic plaintiffs hail obtaineil a judgment :it hi|
•again.st P., oiieof the defendants, u])oii coiitVs,-kl
and, as judgment creditors uii<ler tliat jiiiIj;iii(e:I
had filed their bill to set aside a jirior jnil;.'iiM|
of other defendants, and iiail olitiined .iii iiijiim|
tion to restr.ain a sale of the goods of I', iiii*
such jtrior judgment. .\fter tlie injiiiirt>i|
granteil, the plaintiffs obtaineil another jmlgifc:
ag.ainst P., not upon eonfession, but by i1i.'Im!|
Under these circumstances, a motion for li.'.w
amend the bill, by alleging the recovery uf I
101
s not post-
il after th
;s expires.
nr v.'icatinr,
ninputiitiot; !
Order .'i i.i
f'oiitinJhj j
'er Spragci", j
ibers of tlit '
li.i iTinrl Ciit I
rcoordr. ;
W2, may m ■
or the iiitrfi
; subaciiucm \
ic introduciil
bill. B'm
inKougluiet. \
m taken om, !
out prejurti "
sly obtaiiK'l
Line pro tunc, j
pro confessfi.
!96.— Mowall
dor to amenil. 1
m V. /V,7rs;|
iry.
re serving tbl
ots/cc V. ('(iA\
t.
ded, and tli(I
lill," the foiirJ
hill as it stwii[
lecl on pr,Mi[-,
V)ill cannntl<|
jiearing at tt
lendment, vrv|
t. Fi-ht.A r.
lor, Sf'-rdm-,
Il the phimtl
lew defrnilar,'!
lintitV, wither
[bill (.r iiiay.il
Iietion, M\'\t\
dofeiidaiits
lint a, waivir I
l/w'.V, I'-i'l
or iiijiin't,''!
lilV aliK'ivl-'
Itu tluir.'it;
|105
AMENDMENT IN EQUITY.
106
Idjiiiicnt at l|
lllU'illlU-'i'?'
Ihat iM'lL.tm:'
Trior .iu.lji..'.|
lis of I'. "I*
Ihe injnii't'l
[therjiid^nii-!
Imt by '1' ■'''
Ion for 1' ■!> ■
L'covery ui 1
Lecnnd judgment, was granted. MmUreal Rovk
Iv r/c ' Annum Errhnnac Bank, 1 Thy. fhanib.
Where the time for amending tho bill ar, of
Loiirse haa not elap.sed, an order to amend, with-
out iirejiulice to an injunction, is a.T of oourse,
ml obtainable on prrecipe. Ei'on.'i v. Root, 1
Dhy. fhamb. ;tr)7.-Spragge.
Material amendments will not bo allowed
rithmit prejudiee to a pending motion for in-
Innctioii. Dnrij v. Danj, 2 fhy. f'liamb. SI.
A motion to amend without prejudice to an
Injnnetion will not be granted ex parte. If the
nomlnicnts are such as could be made without
r.necial application the order can be obtained
En piwi-npe ; "f not. notice mu.st be given to the
barties affected. McGregor v. Mam/, 2 Chy.
thamb. 3S7. -Taylor, Serrelari/.
S. Otlirr ('nxr,^.
Tlie eoiut refu.seil special leave to amend by
ntrnilucing new matter, where the matter of
he proposed amen<lment could be proved under
he pleading?' without it. Wilmott v. Boiilton,
fby. 479.
AVhere the time Ins el.ijised for obtaining the
Isnil order of course to amend, the court will not
Taut an order to amend n.s Iho ji/ainlii)' ma;/ hi
ii'f.sf'. as an indulgence, on the ground that the
llaintiff hid intended to take out the usual
[der within the proper time, but had not done
I thnm^'h a niistako of a clerk of his solicitor.
So>i'iii ^'- Tunirr, I (.'hy. f'handi. 2()S. \'an-
toiij.'hnct.
A hill "IS tiled by a surviving jiartner against
he representatives of the deceased partner,
nying an account of certain partnership deal-
to whicii a demurrer for want of equity
as i\!linved, on the grounil that the relief sought
liuirtl by the lapse of more than six years
etHP'^M the teath of the deceased partner and
he tiling of the bill. (lOave was given to amend
hth a I lew of shewing that certain land held by
]>c iloicased jiartner, and which had dcscendctl
I his iirira'law, had been purchasc<l with part-
ership assets, anil that therefore there was a
snltiu',' trust in favour of the )ilaintill'. MrFml-
!)( V. Shimyt, 1 1 ( 'hy. 272.
[The ciinrt will not grant leave to amend a bill
Ihcrc tiie propose<l amendment would render
1)111 of a dill'eriint nature, ('rtnrfnnl v.
trii'l'nii'ii, I Chy. ( 'hanib. 280. Mraillirtir;/ v.
ffCimh II, (! r. I*. "tH — (.'hy. t'hamb. — Spraggc.
ITIk' iiiaintitl's tiled their bill to impeach a con-
jjyani f lands in X. to the wife of a defendant.
ilisiriliing the lamls by metes and bounds, by
Btake only a portion of the lands in N. were
cluileil, which portion was afterwards lost to
|i.utii's by being S(dd under a power in a
Oit:.'im'. .\ motion for leave to amend the
liy liL-ertinu tlie projierty in N. not included
I the t'orni'T descri]ition, was granted. Will-
«( V. /■'/(■(/, I Chy. Chandi. 2S7. Spraggc.
jAMve refused when the proposed ainendnient
an allegation, that a mortgage was made
kilst tlie mortgagor was insolvent. <'inii.i\.
.'Chy. Chand). 184. Spragge.
[A I'liintitr having failed to amend his bill till
! '.iiiit within which he could do so had expired,
owing to a pending motion by defendants to dis-
miss : —Held, not sufficient excuse for the delay,
but that the plaintiflf might under the circum-
stuices file an additional affidavit, the former
being insufficient, and renew the motion. Mr-
Dom'Uv. MrKn;,, 2 Chy. Chamb. 243.--Mowat.
Where an amendment has been allowed with-
out limiting the time, it should be made within
fourteen days from the order. Where circum-
stances prevented this being done, and no order
dismissing the bill if it were not done wa.s
embodied in the order granting leave to amend,
the referee held that the court could grant
further time for amending, even on an applica-
tion after the fourteen days. MrMurraii v.
Orovd Trunk Rolhrny Co., .3 Chy. Chamb. 30(5.
Taylor, Secretary.
III. Ok Decree.
The court, on further directions, supplied as
far as possible the defects of the decree, without
a re-hearing. Hohrrtann v. Moijrr.i, 1 Chy. 500.
An a])plication to correct a clerical error in a
decree or order must, as a rule, be made on
notice, liailinhurat v. Rii/iiofth, II Chy. 521.
Where a decree taken out by the plaintifiFs in an
administration suit, erroneously made ])rovision
for certain payments in priority to the provision
by the will for the widow, the court upon her
])etition directed the decree to be amended, but
refused costs to tloher ])artv. Kmlhw MrEweii,
14 (hy. 404.
.\ decree can oidy be amended on an applica-
tion in chambers when it is not drawn in
accordance with the judgment, or S(une necessary
eonseiiuential direction has been omitted. Wnf-
.so/i V. Ilimli rsim, 2 Chy. Chand). ,'}70. Taylor,
Sicriliir;!.
The secretary in idiandicrs will only allow an
amenilment of a clerical error, or to make the
decree conform with the judgment. Where the
decree omitted to direct that I'osts should be
paid forthwith, an api)lication t) amend was
refused. H'i/.so/; v. I\i>1h rl.<iiii, II ( 'hy. ( 'hamb.
100. Taylor, .Sicrifiiri/.
.\ motion to amend, when l\w pleadings and
c\ iiU'nce or anything beyond the judgment and
decree have to be looked at, nuist be presented
in court, not in chandlers. La/iji v. Ln/ip, ',\
Chy. Chamb. 2.S4. -Taylor, Jfr/rm'.
Where, on a petition to amend a decree, the
petitioner asked in the alternative for a rehear-
ing, ami that the referee Mould adjourn that
jiart of the ai)])lication to be heard before a judge,
the referee held it to be beyond his jurisdicticm,
anil dismissed the jietition with costs, //i.
The referee's jurisdiction with regard to
amending decrees, considered in l^ip)( r. Lajip,
.'H'hy. Chamb. 2;?4, atfinned. Ixjave to rehear
refused, after considerable delay by the i>arty
seeking to rehear, .and wiiere the grounds for
rehearing was an alleged error in the decree,
which w;is not an obvious error, and cau.sed no
niiscirri.agu of justice. /,<»/</> v. Lup/i, 4 Chy.
( 'hand). .3. -Spragge.
A consent decree may be .amended on petition,
if it contain terms not consented to. Mtrefiaiifn'
liiiiik v. (irnnf, 3 Chy. Chamb. G4
il
ill
(l
107
ANNUITY.
lo^;
liianioit;;aL'C'SiiitllK' |plaintitr liii\ inj,' olitaincd
a decree which could not projierly lio issued on
pnecipe, the ])laintilT's solicitor asked, if tiie
referee considered the decree erroneous, to
ameml l)y inserting a ilircction for the master to
enquire as to an alleged tender: Held, that such
an amendment could not he midc, the decree
being one which could not lie issued on priecipe,
and that a decree so issued could contain no
special <lireetions or provisions. A'li.-v v. Vmli r,
•,\ (:;hy. Chamli. •rM\. 'I'nylor, H-f<r<r.
A petition to ameinl a decree, under tlie.'Wlith
consolidated order, after the time within which
there could he a rehearing without leave, may
he i)resentcd, without a ju'ior a]iplication for
leave ; hut such a c:vic must he shewn on the
petition as would entitle the jietitioncr to leave,
if such an apjdication were in'.dc. i >' Dowhifn-
v, ffniihrof, l!)('hy. <).-).
come to light on eroBS-examination, there bein/
strong reasons for apprehending that the awirl
was not a fair award, /ii n I.nir.vii v. I/iiirl,;,..
■■<»ii, I'jChy. 81.
AX( ll-.NT DOCU.MEXT.
S'l' EVIDKNCK.
IV. (>i .Masti:i;'- i;i;roi;T.
In taking an account of mortgage money and
interest, the master computeil interest \\[> to the
19th of March, hut hy some error in his report
the money wa=i appointed to he paid on the litth
of January. Upon plaintilV's application ex
parte, this v.-.ts corrected. H7(7i v. ('(ii'rliii';i, 1
L'liy. Clianih. 11. — Spragge.
After advertisement for sale it v,-,\> disunvereil
that the report had omitted to include tv.o items
of interest: — HeM. there was no necessity for
apiminting a now day for iiaj'nient, and it was
referred to the mast'^r to take a tre,-.h account of
plaintiff's claim, and to amend hi.^ r^p^.t, and
leave wiis given to lix a new upset price and to
postpone the s ile if necessary. y^cs-.M y v. Uniham,
9 L. J. S'2.~('liy. Chimh,— Estcn. '
I.
H.
Ill,
IV.
V.
VI.
1 VII.
ANIMALS.
I'kMIM; .\(;,VINST— .V<r Fe.VCE;>,
Disrit.viM.Nc —Sk Drsriiius.
Horses— .Ve(; Horse.
HonsE liACK— .SVr fl.VMINc;.
I.MPOINDINCJ— .SV'' MUNKlr.VI.
TIONS- rofND-KEEPEI!.
ISMlltV TO— .Vc H.VII.WAVS AM) KaII.Wavj
COMI'A.NIES.
TiiEsi'Ass FOK Sei/,i.v(;--.SV( Tresiwks,
( UnriiRA. I
A clerical error in .i ma-
.amended. Wni.-nr v. Mn i
'2t)6. — VanKoughnet.
A motion to correct cucli
notice, unlen.i on consent.
2f'hy. Chamb. 12. Mow.-.t.
npo;-
Chv.
will he
Ch.imh.
error . I
'.'111 I I'j on
v. (I'Inir:!, 1
I'ower of corporation of the city of Tornn!'
to pass hy-laws for the destruction of dogs fdunr;
running at large. MiKinuc v. Cainnhidl, 10'
B. 241. '
Held, that upon a count m case, for inj:'.
rics done hy defendant's hull, alleging dclcmil
ant'.-< knowledge of the hull's vicious propensitvl
the fact tiiat he had once admitted that his liii!
had done the injury, and offered the plaintifl
.^10, was properly submitted to the jury as cv!?
deni« of such knowledge, with a caution, hnTl
ever, Mfi to its weight, as in Thomas v. ^Inrgacl
2 Cr. M. & R. 49H. Mamn v. Mornun, 21 1'f
n. ;52S. '
Tre.-pas3 is maintainable ,agaiii.st the owner''
a Vmll which has broken into the plaintiffJ
cIo.".e, and there killed his mare, defend.iiit n;,
hcin^^ present or aware of the act. //).
\'. Mir( r.il.ANTo; .; Ca-i: .
A\ here an information had been amended by
merely adding a party l>y the diicellon of the
court, a motion to take the amended information
off the tiles because not signed hy tiie attorney
general, was refused. Allonn;/ tiiiifrn/ v.
Turoiiln Strct f,'. 11'. Cn., 2 ( 'hy. Chamb. ,'t2l.
— Taylor, Si '•»•< lur;/.
An amrndment w,i, allov\ed «liere ;in unim-
portant mistake had lieeii ni:idc in a n.ime, which
had misled no one, and t!ic right person had
lK;en served ; and an ( nlarg''inent on aeeonnt of
Ruch amendment w.is refu;:cd. /•'/■((« /■ v. fiii-^i i;
2Chy. Cliamb. 4:.7. Taylor, S.nr/or;/.
Wh'.re tliere is a nil.-joindcr of petitioner.* in a
))etition for stay of proceedings, tlie cnin't has
jurisdiction at the hcnrnigof the petition loallov.
the same to be anicndi'd by striking out a name.
(iillirr/ V. Jarrit, Hi Chy. I".)!.
On a motion to set aside an award, t!ic court
allowed tlie party iirejudii'cd to serve a sn|)ple-
mentary notice emiiodying olijeetiona as to the
course of the iimpir^; and arbitrator, which h.ad
ANNUITY.
I. Bv WlM.-.S-" \\ILL.
' Where a testator had bound himself by
to pay to bis mother £12 lOs. annually, ai|
devised )iart of his lands to his brothers <in .
dition that they should ])ay to his moth>r
lOs. ])er annum, and pay all his just debt.~, Ml
niaile them his executors :- -Held, that .at lul
the legacy could not be considered as a sstisiif
tion of tlie anmiity in the bond, and that t;-J
mother was entitled to both. Culr. v. Co/', jij
,'^. 744.
.All annuity |i,iy,ilile annually during tlii-amre'
t.int's life is nfit aiijiortionahle, so lliat Ll
administrator can recover nothing if the .iiikI
taut die within tlie year. AtimiKtn v. .l/(."i'i
iiiiiy, ."• C. I'. ."Vil. See now ."{7 Vict. c. 10, H
(,Mi,ere, wlielhcr th" llnglish annuily K[si\
in force here ; hut if so, a liill to eiifiU''
anmiity dei'd need not allege the enroliiunt"J
memorial as rcipiired by those nets ; ami ,i"|
fcndant cannot at the hearing take an i(l>i('ii;|
for want of sucli enrolment, unless he ha'
up Hueli defence hv his answer. Eiiiiii'.i't
Crwjks. 1 Chv. l.VJ.'
100
APPEAL.
VI.
V testator having bequeathed £500 per annum,
Davvlile out of tlio rents of liis real and personal
bst lie iiiiliscriminately, for the support of his y 1 1
d.iow and family, (tiie widow having become'^-,,,
jj, L.xi.ciitrix,) her separate ereditoi-s wiire held
Entitled to have her share of the annuity severed
id attaciied to satisfy their debts, subject,
„.,.',,.i' to tlie prior elaiius of the estate
Isaiiist liii' !'>* exeeutrix, to lie recouped tor
lireai he:) of tnut ami tlie lil<e ; and - Scinblc,
Iha't " liii'-' there is no (iroecss wliereby sucli a
and i;iii he leached, tliin cnurt lias power iiiidcr
, ^j^.j I.. ^:>, s. 'JS8, to apply a ii'iiudy ; a.i in
lis I'iiae l>y t-i|iiitable attachment. Iia,ih nf
:./! \4j1il1 -I"'' '•''•" V. Mulllifir.-u S " iiy. 'ISti.
M.ATTER';— .SVr
l.\.
Tl
Is CUIMINAI
L.\w.
I'i:oM Masi'i:i! .Vf
I'lioM OKDKKS -.SVi
riiAincK AT Law.
.'^l.i'OMi Al'I'l.K'A'I'loN
I'KAc-nci:
I'KAcrrcK
110
CniMINAT,
IN KyuiTV.
IN Kyi'iTV
.S'-v I'li.vCI'li'K AT
the
the
Tilt' (luiur of property niortg.'iged it, and then
lieil having devised one half of the property to
ae soli, and tlie other half to another, chargiiii;
ch hulf with an annuity to the testator's
idow "lie of the sons afterwartis died intes-
kte and his widow paid oil" the mortgage and
ok an assignment to herself : Held, tiiat if
be was willing to make the annuity a tirst
arte on the property, the testator's wiilow
aid not insist on redeeming the mortgage.
lowj V. /."»;/, k; Chy. '.'.SO ; .V. C 17 C'hy. :.'.-.l.
I JJo iiiteieat is allowable in respect of arrears
[an annuity, (lold-iniil/i v. Oolihiifilh, 17 Chy.
13. ■
ANSWER.
1'lE.UiIKO (tENEBALLV— .?"'■ PlF-AUING IN
EyciTV.
III. f.'ErAK.iTF. Answf.k OF Maukiku Woman -
,'5'(V HrsUANll AND WiFK.
ANTE NUPTIAL SETTLEMENT.
In Liri' OF Dower— .%'(■ Dower.
]y, Frai'd of Creditors— .S'w Fkavdv-
LENT Conveyances.
APOLOGY.
Vee Defamation.
— ■• —
APPEAL.
1. Ehrou— .SVc Error anu Appeal.
Ill, From A'<.-'.es,!MEnt— .S'tv Assessment and
Taxes.
Is In.solvencv— .SVf UanivRI'I'tcv and
i.nsolvescv.
Kemoval of Cause;! — .Vc Certiorari.
KruJI CoLRT.-i.
I. From Cuiiiiti/ Coini — S'n- CoL'NTV
Court,
v. Fi-um Prartirf Cuiiii — .SVc I'ltAiTicE
Court.
II. Fr^iii Sitpniur Cuini.i
4. Fr
.SVc Error AND
Appeal.
M(iijiitnitiK—'*:see SE.SSIONS.
le geiieial rule in matters of appeal is, that
JLidgiiieiit appealed against stands, unless
ippellate cuurt can say that is clearly wrong,
Krnin V. (li/,i,(i, l(i C. 1''. -l.Ti.
While a power resides in any court or judge to
j commit for cuiiteinpt, it is tin? power or privilege
! of such court iir judge to determine on the facts,
i and it does not behnig to any higher tribunal to
1 examine into the truth of the ca:ie. in )v Clurk/'
I iini/ Nnrmany, 7 Q. I''. -"J;!.
I A judge when apjilicd to in vacation, under 4
j Will. IN'., c. 10, s. 1, for the commitment of a
( ilebtor on the limits to close custody, disposes of
I the case without the power of appeal by decliu-
'■ iiig to interfere. SIkiii: v. .V/c/vc-.k; — Oille^jAi' v.
! Sid;:rM,„, 7 0. B- o^l-
1 No nev.' evidence will be received by the court
on the examination of a deeiaion of a judge iu
ehambers as to a contested election. licii'niu ej:
I ret. Clurk v. Mr Mull, 11, 9 Q. B. 407.
Semble, that whether the court or a judge be-
fore whom the i-elator brings his case, will go
further than dc^clarc the election of the defend-
ant Void, or will proceed as well to seat the
relator, is a matter of discretion not to be inter-
fered with on appeal, lb. — Eobiuaon.
An appeal will lie from an interpleader issue.
Wilson V. Kirr, 18 (}. B. 470.
Where an action in the Division Court by a
school teacher against the trustees was referred
by order of the judge, with the consent of
parties : — Held, that the arbitrator's decision
could not be appealed from under IG Viet., c.
185. 8. lil. Vhiff Hup. rlntcndrnl of Hchuuh, Ap-
pftlaitt. III rr Miliiraiid .'^ylvrsler, 18 Q. B. 538.
Action for malicious prosecution, alleging a
deteriuination of the proceedings. Plea, that
an appeal from such decision is still pending :
—Held, good. Urljith v. Ward, '20 y. B. ;il.
Defendant was convicted at the Recorder's
Court, on contradictory evidence, for obstruct-
ing a highway, the result ol the verdict being to
show that he and several others whose houses
and greenhouses had been standing for sixty
years were eiieruacliing upon the street. Anew
trial having been relused, 011 appeal only the
evidence was returned to the Court of Queen's
Bench, with a copy of the rule nisi. The court
under these ciicuinstaiices, considering the im-
portance of the ca3>.', and thai thr •jruaiidi nf l/ir
judijiiiiitl lirlow ir,r'- imt ijirtii to l/iciii, directed
a new trial, contrary to the usual rule, which
was atlinned, that such appeals w ill not be enter-
tained upon (piestions of evidence. Jt'ii/iiia v.
McLnin, •_'2 Q. B. 41.S.
Remarks as to the iiicouveiiience, if not
danger, of making the writ of habeas corpus a
mere method of appealing from other tribunals
on points more ot practie.,' than allecting the
merits. In rr Miinn, 'Jo C'. H. -1. See, a,\-M,
Htinriinan v. Arnritnnii/, '_' I,. J. N. S, 105. —
C. L. (/hauib. A. Wilion.
8 '!
l<
Ill
APPRENTICE.
Costs where judgment of court below is : appearance by
reversed, but no directions given as to the costs | nullity. //"//
of appeal, .y/finii's v. Ift'il/ei/, 2 t'hy. 544. '
Interim injunction granted to stay proceed-
ings at law pending the decision of the t'ourt of
Appeal. Citllim v Cor/ji/, 7 Ohy. 'A).
Pending an apjieal from the ("'ourt of Chan-
cery, an injunction was granted restraining a
mortgagee fronj ju-ocecding to tlie sale of the
mortgage premises under a i)ower of sale con-
tained ni a deed. Commi'rrMl lUnik v. ISmih nf
Viqu'r Cdudila, I Cliy. Cliand). (i4.
Paying money out of court pending appeal.
//(7/v. Riithn-fiml, 1 Chy. Chamb. PJI.
for defendant, is
rii<;niil, I'S (}. H.
112
therefore a
.SiK).
APPOINTMENT.
PoWKK iiK Svf Wll.l..
The proper mode of appealing from the master's i^T*^'' ""» '^ '»•'"« «' agesiea on arnaay.t th;
certificate of taxation is by motion, not by peti- ^ * 7 '*'"'^' ""1^' """','^'' /''^ exercise cfum,
tion. In ir Pouhm, 15 Chy. 355. influence on the part of tl>e liusband furtli,
•' en(iuiry was directed, tciitun \. (mxs, i V\\y.-A
An appeal from the decision of the referee,
under the Act for quieting titles, may be to a
single judge. Arniotir \. Smith, Iti Chy. 380.
As to the practice on appeal under this Act.
See Ri' Hoirliiml, 4 Chy. Chanil). 58; S. C. Ih. iK).
There is no appeal from a decision on a (pies-
tion which is by the practice purely within the
discretion of the judge. Cham v. Mei/i'r.-i, 3 Chy.
Chainb. 120. — Taylor, Sccnlari/.
An appeal bond is properly intituled in the
cause in the court below. Ciim/ihef/ v. The lioi/al
CanmUan Bank, (i P. H. 43. Chy. Chamb.-
Holmested, lieferi)'.
Decree directing accounts to be taken varied
on appeal. Construction of decree in appeal and
duty of Master under it. llillnit v. •/<irri.-<, '20
Cliy. 478.
Pidperfy .stood limited in trust for such pur- |
poses or i)ersons a.s tiie wife should appoint ; aijii
in default of appointment, in trust for tlie wii,
and licr lieirs. The wife appointed part of li,r j
estate to iier iiiisliand in fee, and the other pan
in trust for lierself and children : — Held, tliat
these appointments were authorized by tin-
power, but it l)eing suggested on affidavit tliat I
Ui I
II I
iM.i
The donee of a power of appointment madr I
a will, not referring to the power, disposiii" u;
" the moneys now or at my death invested it .
mortgages, or otherwise." The settled estattl
was iiiveste<l in mortgages, and the donee liajT
no (ither mortgages : — Held, that the intentioij
of testatri.K to appoint the settled estate suit j
ciently aiipeared. /)ri-i/r.i v. l/nihoiii, Ui Chy. 1(1"
1.
11.
111.
IV.
APPt)RTI()NMENT.
Ov Anm'itv — .SV^' AxxriTV.
Ok Costs — .Vfc Co.sts.
Oi- Rent- ,sVc L.^nulohd and Tenam.
Or Taxks .SV<- Asse.ssmest and '{'am:!
I.
II.
APPEARANCE.
To Writ of Ejectment — Sff Ejectment.
FHAl'Dl'I.ENT
Judo.ment fok want of— .S'
Judgment— J cdoment.
III. To Writ of Summons— .SVc Phai tick at
Law.
IV. Bv Attorney without Author itv —.Ve<
Attorney and Solicitor — Practice
at Law.
Putting an appearance under the door of the
oHice of the deputy clerk of the crown during
olKce hours, or handing it to him in the street, is
not a due entry of the appearance. Such a
practice is not to be encouraged. Orey v. Stacei/,
10 L. J. 245.— C. L. Chamb.— Draper.
Where an appearance properly intituled was
tiled in the otiice of the deputy clerk of the
crown, but was incorrectly entered in the ap-
pearancB book by defendant's attorney, and
plaintiff's attorney not having searched th« tiles
was led to believe that no appearance had been
entered, the judgment was set aside, but without
costs, as both parties had contributed to the mis-
take. Moore v. Simonn, 1 L. J. N. S. 183. — C.
L. Chamb. — J. Wilson.
The proceedings in replevin as regards appear-
ance are regulated by the Replevin Act, not
by the C. L. P. Act ; and an interlocutory judg-
ment signed as for want of a plea, without any
APPRENTICE.
Articled Clerks -.SVc
Solicitor.
Attorney asI
II. Servants .SVc Mastkh and Servant.
An indenture of apprenticeship is not voiil
but voidable, when contrary to 5 Eliz. c. 4 : aBJ
that statute is not in force in this provinMl
Finh V. Doi/li-, Dra. 328 ; Dilliiviham v. ir;/<-
e O. S. 85.
The 5 Eliz. c. 4, is not in force in U. C,
the 20 Geo. 11. c. 19 is; and under sectiomJ
I & 4 jurisdiction is given to two or more justical
I and cannot Ije exercised by one ; and the part
cannot be arrested on the complaint— he m
be summoned. Shea v Choat, 2 Q. B. 21 1
Contracts of apprenticeship for less than kvi
years, entered into before 14 & 15 Vict. o.
are not void, but voidable. Wtbster v. J/ciiral
5 C. P. 109.
Where a father and his son, a miiiur, eimnj
into articles, and the son by nis father's oniaj
refused to complete his apprenticeship :— Hd
that covenant against the father on the articlt'
and not case for enticing away, was the prf
remedy. DUl'uujham v. Wilson, C 0. S. 8J.
The plaintiff, in covenant against the fati
alleged as a breach that the apprentice uiili4
fully absented himself on a certun d«},
113
ARBITRATION AND AWARD.
114
Iroiii thtiK'i' hitherto continucil iibsunt from the
er\ icf cf tilt: i)hiiiitiff. Plea, as tci tlie absenting,
Ihit tiic aimienticje did depart nnd abaent hini-
eit i>V pliiiiiti'l '••< leavu anil license ;— Held suHi-
lieut without pleading a licnise to continue
Ibsei'it as the plea only professed to answer the
Ibseiit'iii" : Held, also, that the plea need not
lew tliat tilt; license was \>y deed or in writing.
SIn'vit.'ioii, .'< y. U- 'IJO-
Bv (leod between A. 15. and C. IJ., father and
Ml" ul' tlie one part, and K, F. and G. H ,
[irtiars, (.oacli budders, of the other part, the
hn with the consent of his father, bound him-
blf' apiirontice to the coacli builders. The in-
ruii'ieiit contained this clause : "And lastly, for
he true and faithful performance, &c., the said
ji., C. 1'., iiii^l K. I. and U. H., do bind
henisclves unto cuch other in the sum of, &c. :—
leld, iu debt by the father alone, against E. F.
te surviving partner. 1. That all defendant's
hveuauts w ere with tlie son and not the plain-
Iff •!. That the words; " unto each other " did
k u'wui separately and individually, but that
\eli jxirlii resuectively, i.e., E. V. and G. H.
foitlytoA. B.'and C. D. jointly, became jointly
mud to the other ; and that there wa» therefore
nou-joimler of plaintifl's. Qurere : the suffi-
incy of the (leclara;,ion as given in tlie report.
nk V. Oim>, 3 C. P. 249.
A surviviiu' partner is bound by the covenant
hiuiiselt and his deceased partner to teach an
ipreutice, until the end of the term for which he
JM apprenticed. Connelly. Owen, 4 C. P. 113.
JThe ikfeiulant, a J. P., convicted an appren-
if having absented himself without leave,
id adjudged that he should give sutticient
urity to make satisfaction to his master,
..rding to 14 & 15 Vict. c. II, and in default
be imprisoned for two months. The convic-
was (plashed : I, because the articles of
■euticesliip were not within the act, the
■entice being a minor, and the articles not
uted by any one on his behalf ; and 2,
use it could not be sustained under the
1 clause of the act for two months' imprison-
it, or under the seventh, because the satis-
011 to be given was not ascertained. //( re
H'< V. HohrLiun, II Q. B. 621.
: jilaintifr declared against the heir of W.,
\V.'s covenant to teach and board and
tlie plaintitl' a specified period, and that in
if W.'s death her heirs, executors, and
iiistiators should perform the covenant :■-
bad, for I. Hy the form of the covenant
jheir was not bound ; and — 2. Upon such a
act, lieiiig one of ajipronticeship, he could not
ailo liable. AV.c./v. (IV/V/i/, KiQ. B. 514.
ctiiin for (hiniages liy roaaon of defendant's
^tlii' lilaintill's' apprentice, absenting liimself.
that before lireach the plaintifl's dissolved
nnship : Hehl, bad, for not shewing anap-
^tii.esliip to pluiiititfs as partners, and that a
olutiun Would render the service impossible.
H'inl ,1 „l. V. M,i</uire, 12 C. P. 407.
II an application under 29-30 Vict. c. 45,
'liseharge of a prisoner committed under
|Aii|iieiiticeH and Minors Act for disobedience
masters, on the ground, inter alia, that
Jeiituie of apprenticeship was not a bind-
^eonlract, it having been executed by one
T of the employers, in the name of the firm :
S
— Held, that it was binding at all events upon
the apprentice and the partner who had signed
it, and there was nothing to shew that his co-
partners had not been present and assented to
the execution. Reijina v. McSaney, 5 P. K.
438;7 L J. N. 8. 325.— C. L. Chanib.— A. Wilson.
In covenant against two defendants the inden-
ture sued upon was produced from the custody
of defendants', with whom the apprentice ha*l
served until his dismissal. It had four seals, and
was signed by the plaintitl', his son the apprentice,
and one of the defendants ; — Held, that there
was evidence of e.\ecution by both defendants.
Juilije V. T/iuiiisoii el ((/., 2<jy. B. 523.
APPROPRIATION OF PAYMENTS.
Sec As.SE.SSMEXT AND TaXES — Pa'.'MENT— PkIN-
eiPAL AND SiuErv.
ARBITRATION AND AWAF.D.
I. Submission or Reference.
1. What may be referred, 115.
2. By and to whom, 116.
.3. Compulsory Reference, 118.
I 4. Makimj submmiona Rideof Court, Wd.
I 5. Construction and effect of, 120.
I (). Revocation of Submisnion, 122.
7. Submission becominij aliortive, 123.
I II. AiJREEMENTS TO REFER.
j 1. Staying Proceediu'i-i umlf'r C. L. P.
; Act, 123.
j 2. i)lher Cases, 124.
III. Attendance of Witnesses and Produc
TioN of Evidence, 124.
IV. Arbitrator.
1. Proceedings before, 125.
2. Powers and duty of.
(a) Generally, 125.
(b) Emdence and Witnesses, 125.
(c) To amend the Pleadings, 126.
(d) Ex 2)arle Proceedings, 126.
(e) Delegating Authority, 126.
(f) Stating caseforopinionof Court, 126.
(g) When Verdict taken, 127.
(h) Disjiutes between Partners, 127.
(i) Directing manner of Payment, 128.
(j) In jtarticular Cases, 129.
(k) Costs, 1,34.
(1) Altering Awanl, 135.
3. Fees and Remuneration, 136.
V. Umpire oh Third Arbitrator, 136.
VI. Award.
1. Time of making, 137.
2. Who should draw up, 139.
3. Form of, 139.
4. Executing, 140.
5. Construction of, 141.
I
i; ;4,'i' ; J
:1
11*)
ARBITHATION AND AWARD.
11',
I!;:;!
(i. I'JjI'k'I .;/', 1 4:1.
7. Cfiiiiiiili/ anil luiutlilii.
(a) Ihiiit/iiiij Id Jim/ nil llir /.■i.tin .■!, l-W,
(I)) OlIlillilKJ Id (IllJHIKId/ Sll'll, \4i>.
(c) Miilli i:< riliifiiiij III Liiiiil, 117.
(.1) Dllin- (V.sv.v, l,"il.
8. /'aiiliil nilidH;/, \Kl.
W. tfi'/i'l'ilH'c liiirh; l.'i.'i.
VII. SKiTiNd AsiDi; AMI SrvMMi l'i!(K'i;i:ii-
INdS (IN AwAlil).
I. Fur iiii.<ci>iiiliirl ii/iii'liili'iil'iff ur /Kirli"'.
(il) /// UlhilliJ nr rrjifllllij ICl'lil'llcr, I.IS.
(li) Ollitr lii-<ilill(li'il'n'.<, IGO.
1. Fur Mi.^lnh or /'i /iii'iiitiiirii, ItU.
;i. On llir .1/. /vVv, li',.'!.
4. Priicth-i .
(11) Thill fur Miiriiii/, I(i4.
(li) AjUiliiril.i mill Fnirll,',, llill.
((■) Fnriii of lliib , lt;7.
i'l. t)llii r I'ti.^i.-:, 1(17.
Vlll. JlNFidit iNi; AWAKIl.
I. Miikiii;! Aininl II lliil, of Court. WX
'J. I'lj Alltir/iiiii III mill drill r.
(ill /'riirllci', IG'.I.
(b) Olhir r.isr.v. 171.
.'I. Bji I nil riiiij Jiiiliiiiii III, 17-.
•1. liif A ft inn.
(a) I'll, iili nil, 17;i.
(b) Frlilrnn; 17«.
(.) n/liir r,(.sv.s I SI.
i"). Z^// Sjiirln'r /'i rl'uriiiiinri; IS'J.
IX. (,'OMS.
I. A'/';//,/ /./ ,/'(/// r.,.f; Ih'J.
:'. I'nili r linli of C nrl. IS!!.
;{. Villi r Cusi.i, lS-1.
.\. MU'( l;i.LAM;uL-i t'ASK ■, ISj.
XI. In Fartuilau Ca: 1:^3.
I. L'lukr Dviiiularii Liiu Connnimunc).'.'
Ai:l--!iti: bul.>bAli\ I, INK (.'u.MMiS-
:uoNtr..'..
•.'. Bii Finrr I « (iv /•; .Vii' Fk.nie \ u;\\ Kh.s.
;{. I'luitr Munkifjal Inxtitutluns Art — Sa-
Mu.MDJ-AL CoKPori.VllOSS.
4. i'lnhr Pnhlir Srh «,/ ArU- Sir I'l ulic
5. Hi) J'uilicai/.i. — Sir ItAll.W AVS AMI
I'.AILWAV Co.Ml'AMF.S.
G. l'ni./ir 'Furonlo EnplciiHlili Art Sri-
'I'uKON'lO Ksl'LA.NAllK.
7. /i''<('(As- mill Ur'ntiji 1 Sir W av.
I. SriiMissHi.N till i;i;ii;ni:.N( 1;.
1. l\ lull 111111/ lir nftrml.
A i)iusiiutiiiii I'lir .Selling wliiskfy without a
licL'iisu cauiKit bo toiiijiiuiiiisiil witliout leavu of
tlie court, ami tliiivloro t:iiiiiot bu rclurrt'il.
Wlitiv, ultlioiigli thu oirciux' wuH not Kubniitteil,
it waa trifil liy the arljitrator, in oidi;!- toik'ter-
iiiinc thu liability ol the jiartie.s aa to costs, bo
I muuli of tho award was act osidu. /n rr Fm-,
I mill Fxriiii, I I,. J. N. S. 324. ~ P. ('.- A. Wilsoi,
'2. liji anil to irliiiin.
One of two |>artnerH cannot execute an ailni
tration bond in the |iui'tnei-shi|> name Hou.tt«|
l)ind the other partner, linlni v. /hirrniinil •I
Q. H. 54.
In an action on a sealed agrueinent to abi.U
by an award, it is no objection in arrest of iii.l.
nient that Uiv. sulnnission is not stated tn ii
mutual. A declaration that defendant agrw.l
with the plaintitl's to refer : Held, not supjinrtci
by an agreement by one plaintiU' only on lnjiaj
of himself and the others, being his jiartini. f
Frrnr/i rt. ul. v. Il'r/y, 17 g. R 'IA'k
A bond of submission signed by the win. nj
ifv// ri.s the husband, is valid, Mrtlill \. FrmA
foot, 4 Q. H. 40.
A. being interested in a lea.'ie, IS. heouunl
security for his performance of the covenant!
IJ. and A. refer disputes comiected with tl,.
lease : Held, no objection on the part of h ;
thu bond of submission, that it. is not a jmu 'm
thereto. ///. ij
A subuiissi<in liy the<iovernor in ( 'ouncii iiiiiir ;
!) Viet., c. ;t7, and 10 & II \ict., c. '.'I,,,
in etl'ect, a submission by the Coniniissiinioh
Public NVorhs. ('iinnnixiioiirrci ol' I'nhlir H',, ,
V. iJulii, G y. I!. .T).
An action cannot, under (.'. L. i'. Act, Isil
be referred to the judge of any other i;um\
than that in which the venue is laid, unli'»
consent. MrEitirnnl v. MrEiliniril, ,'t L. J.
C L Chandj. Itobinson.
Quaere, whether the resolution in this ch.'mwiI
binding upon the municipal council as a takM
ence to determine the amount to be paid tu
plaintitt' for damage to crtips, &c., on iandtaktii
/loflii.iun V. Miinici/jiililii ol' tin tuirniliii,
Whkliij, 17 (i- 15. '2'M.
riaintifl' leased to M. for '-'1 year.-i, reiitHilij
upon certain terms. The lease was assij;iii;J
Al. to ilefendant as trustee for one F. At l
expiration of the lirst term arbitration lii
were entered into by F. and the pluintitt. 14
fendant appeared anJ acted for F. at the arte[
tiou, anil tliu arbitrators directed a rene\v.il
at an ailvanced rent, or that the lessor iliu^
pay a certain sum foi' improvements. The In
elected to renew, and iiotihed the Icssie. v
refused to accept at the new rent, anil in-
brought ejectment :— Held, that the del'dii
was not bounil by the award, the suljiui»
being only by his cestui tiue trust. Mrlhif
liuutiun, 17 y. li. M.
Thu rulu fur a rufurenue, granted on mm
thu eonscnt tu refer euilurscil uii the rucuNf
nisi ju'ius, stated that any question ut' laif
the re(|ucst of either party shuuKl be refi'iu^l
the court, uosts of cause, reference and auul
tu abide the event. The order of refLriunf
made a rule of court dill'ered from tiii>:|
By directing that costs, &c., should be in J
discretion ut the arbitrator ; 2. That he >lit(|
not be reiiuired to reserve any legal iiucstu
Messrs. \\ . &. is. auteil throughout as agiiiUl
defendants' attorney, and all the papers fJ
served upon thiiii ; and W. was cuinuel full
lb;
-A. NViljtiiii
,itu ail uiIm j
iiiu HI) ;u u
cut to :il>i'l-f
TL'St III' jii.l^ '
sliitt'il to I
mlaut iigrct.;^
lot supjiiirtc'
Illy oil lieliiJ
lUB lKll'tllt>rJ
').
y the will'
nil V. /'/in 1 1
, 1$. l)Ci.'i)llln!
le tuvouauts 1
;teil with tli'S
imi't of I) ; I
ifi not :i \i:M;\
( 'ouiit'il muLJ
iut., t;. 'Jl, .
iiiiiiiM>iiom.'r!.:
■ /•,//,/;!• ir..',
. I'. Act, hil
■ other ciiuurl
luiil, uiiUbs I
„ni, :i 1. J.:
ill this iMsiwJ
iicil as a reiij
be iiuiil til till
I, on laiiil talidi
luini'lii^'
leai'.S, l-i-'llcWllij
l\ a:i assigned :|
lone 1''. At I
Ibitratiuii U
plaiiitilt. L>|
ut the arljitj|
a reae\v.il I
le lessiJl' ilii'iJ
[llts. 'I'llB In
,he IfSbie, »l|
|it, ami lit W
tlic ik-ldiiii^
the sllWisil
lilted oil itaii;
la tlie iuciimI
Istion of la»j
Id be relurM
Tiiee aiiil wl
lof referiual
Iroiii tills;)
liould be 111 3
1 Tliat lie »li4
lle-jal .lutjtk
lut as ageiitil
I coiuiael full
ARBITRATION AND AWAKP.
118
'enflantn both at nisi pri'is 'in'l the arbitration.
[t was proved that on an nndertaking of W., as
oiinsel for defendants, not to raise any quostion
if law, tho terms of the reference were altered
.iho've by consent of W., and of counsel for
ilftintifffl- *^ii motion to set aside the award :—
leld that W. had authority cither as counsel
ir as agent for defendants' attorney to bind the
Jefendants ; and the award was upheld. WUmn
The Coi'pnmlion of Ihc. United Couiitici of \
Umiawl Bruce. 11 C. P. 518. I
An executor or administrator m vy by a sub- \
jiissinn to arbitration preclude himself from 1
Headiuf plcno administravit, and thus ren<ler
iimself'iiersonally liable ; but — Held, on demur-
er to the declaration set out in tho report of
Ills case, that an executor or administrator may,
Ruch, refer to arbitration causes of action
fhich arise in the lifetime of the testator or in-
state, so as to bind tho estate, and without
haking himself personally responsible ; and,
Wcforc, the declaration lieiiif; for a breach of
tbinission to perform the award madn in pur-
iance of such a reference, and also on the com-
[ion counts admittedly against the defendant in
rrepreaentiitive character : — Held, th:vt there
8 nn misjoinder of causes of action. R/'d v.
ad, 16 C. P. •-'17.
I One of seviii-d executors boinr; indobfiMl to
he estate, the mittor was left by himself and
■■ co-oxeciitors to arbitration, and the arbitra-
Its .iwarded a larjjo sum asainst him :— HeM,
at though the award mi^ht not be bindinj,' on
le persons bcnclicially interested in thf estate,
[was binding on the executor, as be hid cho.ien
] (ulimit the matter ; and in a Huit by thn cxe-
Itors ho wx"* decreed to pay the amount. A'o' lln
\MeKnnh, l.-)Chy. 331.
IHehl, nn (li'Murrer to a plea settinj,' u)i the
eni'o of ■! corporate seal, that a jiarol aj^rec-
nt rntcicd into by "the duly authorized
[its" of an incorporated in.suranoo company
[refer to arliitration the question of the legal
ability of said company to bear any portion of
ex|ienses of raising and repairing a vessel
knred by them, and sub.scquently lost, w.as not
ding on the company, as not being a contract
Iting to the )iiirpo,sp» for which the company
I incdniiirateil. Ciih-iii v. The /'rorliieinf. In-
jiir. fV, 20<'. 1'. 2(;7.
laviiig devised certain real estato, in
arite parcels, to li. and ('., afterward.s in-
ilioreil these land.i. R was a feme covert,
i|iiestiiins having arisen between B. an<l ('.
[to the amount of the incumbrance to be liornn
[earli, they by mutual Iwinds, in which H.
htr husband joined, agreed to refer sudi
etinMs; and an award was made between
«o inrt'es : Held, that B. lieiiig a feme
erf eiMild not enter into such an agreement to
ftr ; tieit the statutes as to conveyances liy
r! women of tlicir real estates, did not
ily til such agreements : ind that therefore
agreement and awanl were not binding on
Hmili'ii \-. Iliimiihrie.t, \\ ('by. 118. See
)'.,,.-/ W,Mn-ii If. W. Co. V. liahi/, 1-2 Q. a I0().
application was mailc on behalf of the
ntiiV for an order referring it to the Master
DC court to ascertain whether a submission
Arbitration would be for the benefit of an
nt (lefend-int. The order was granted, on
the ground that tho eat ibliMlud prai.tice in Eng-
land was in its favour. The efl'ect of the order
would bo of course to liind the infant by tlie
award, and this is the only way in which an
infant can be bound by a submission without the
aid of an Act of Parliament. Allan v. O'Xeill,
"2 Chv. Cliainb. '22. -Spraggc. See S'cord v,
Co.ilillo, 17 Chy. 328.
3. (.'oinpii'-inri/ I'lj'erence.
Where in an action on the common counts for
goods sold, interlocutory judgment having been
signed, tho plaintifl' desires a rcfcreneo to the
Master under C. I,. P. Act, 1S,")(), s. 143, it must
be .shown that no dispute is likely to arise either
as to c|iiality or pric '. Hn'rhU-m v. Srle-^iwiiji,
14 Q. B. 47-2.
Assumpsit for work upon a railway. The
plaintifl' contended that the written contract was
determined by c:jrtain changes made in the
work, anil that he could recover upon a r|uantum
meruit, while defend ints insisted that the agree-
ment was binding, and all the work in quostion
done under it, it being admitted that if so plain-
tiff" had been fully paid. It appeared to the
learned judge at tho trial that the case would
involve the investigation of long accounts, and
he ordered a icfcreiicc under section !')() of the
('. L. P. A., IS,")!), directing that the court should
! determine, upon the report of the arbitrator?,
liiiw r,;r tlic contract was in force : — Held,
that the oi'ilcr must be set aside, for by the
I statute all the issues joined must be disposed of,
j either by refcreneo or verdict, and the judge
' cannot direct a reference making tho award sub-
1 ject to the opinion of the court. — Semble, that
I as the necessity for going into accounts was
dependent upon the existence of the contract,
j the more cmivenient (course would have been,
first, to take tho ncri >sarv evidence for deter-
inining whetbcr the jilaintifT wa!t bound by it,
and the verdict of the jury Ujion that point,
after applying the law to the facts proved, and
then, if they found in plaintill's favor, to refer
the amount.' U'<lh v. ^'-.o/'v/v, |4 Q. B. .V)3.
It is for the judge In ilclciiniiie whether the
cast' will involv(^ the invcstig.itiun of "long
accounts, " within the statute, subject to be
reviewed by tin; cmirt only when it can be said
that he plainly did not cxi'i'cise any discretion
' on this point, but apjilicd the act where it was
altogctlier iiiajiplicalilc ; and Meld, that this
w.xs not such a case. /Ii.
No rcfefcnec will lie made under ( '. I,. P. Act,
ISoti, s. ,S4, if it a|ipc.ir that ilefenecsare intcntled
upon which the opininii of ,1 jury is desirable.
Hriiiis V. .laek'tDn, 3 I.. .1. .S,s. I '. L. ( 'liamb. —
liobinson.
Action upon a policy of insiir.incc on goods :
Pleas, denying the iiolicy ; setting up that the
goods were not destroyed ; that the ])laintitr
gavi' no notice of the loss ,as required ; inisrejire-
sentation as to the value of the goods and mode
of heating the ])rciiiises ; iiicreasi! of risk by
alteration. .Vfti'r the exaniination of one witness
the judge at nisi prlus ordered a compulsory
reference : Scniblc, that the compulsory refer-
ence wiis authorized; but llehl, that the
defendants having attended at the arbitration
without protest, were iirecludcd from this objec-
. 4
^ 15^
"'1
Vi
i IS
119
ARBITRATION AND AWARD.
12f.
tion. Xewmaii v. Tlii' Xinoani DUtriH Mutual
Fire Insurance Co., 25 Q. B. 435.
On 7th April an order of reference was mode
in chamhera, and servod the same day on defen-
dant's attorney. The arbitrator made an appoint-
ment for Kith May following, when the plaintiflF
attended with four witnesses to prove his account.
An enlarjji'ment, applied for by defendant's
attorney, until the 'J'-'nd, was opposed by plain-
tiflF, but was afterwards consented to and allowed
on the terms, that, in case of ai\ award made in
plaintifl's favour on or before the 24th, defen-
dant was to have up to the 2(5th inclusive to
move against it, but if no award made on the
24th, defendant was not to be bound by the con-
sent. On the 21st defendant moved to set aside
the order of reference. . No notice was given to
plaintitV of this intctiilr<l motion, or that the
rnlargemcnt souj^ht fur was to be without pre-
judice : Held, that defendant had waived his
right to move against the order, fiar/nn v.
ffuhfirtiis, 1«('. P. 4-W.
Woodcock /•. Kilby, 4 Dowl. I'r. 730, referred
to, as indicating the course defendant should
have taken to enable him to move ; and
Semi lie, tliat if defendant had applied to the
same, or some other judge, for a rescission of
the order, and in case of failure had given notice
of his intention to move the court as soon as it
should sit, and renewed such notice when served
with the arbitrator's ai>pointment, protesting, in
case he was forced on, against the proceedings,
and if both plaintilV and arbitrator had been
clearly informed of this, — he would have been
in a position to make the motion, if the ju<lge
ought not to have made the reference, fh.
At ni.si prius a certain (|uestion of fact in a
cause was left to the jury, a verdict was taken
for Is., and theother (juestions involving matters
of account, it was ordered that "the plaintiff's
claim in this cause, and all matters in difference
between the parties in this cause, except the
question decided by the jury, be referred to
P. L., with power to increase the verdict or
order a verdict to be entered for defendant,"
who had pleiided a set-off. On motion against
the award, it was objected that this was a refer-
ence of all m.atters in dispute between the par-
ties, and therefore unauthorized : — Semble, that
it referred only the matters in dispute in the
cause ; but it was clear that nothing more was
intended or had been considered by tht arbi-
trator, and no objection had been made to the
order; .and Hehl, therefore, that if necessary
the order would be amended. Hlmirhrtrd v.
Sniihr, 28 Q. B. 210.
Under s. 158 of the ('. I.,. P. .Act a country
cause may bo referred to the arbitnation of an
officer of the projter court .at Toronto, as well as
to the couiitv judge. Jii'iilnii- v. Ckvenlon, (i
P. K. 3.~C'.I,. C'h.amb. -'Ualton, C. C. <l- P.
See VII. 2, p. 161.
4. M(tk'inij Stihinlfninn a Jink of' Court.
An .agreement to m.akc the submission a rule
of court, introduced afterwards ; -Held, invfilid.
In re Thirktil, 2 Q. B. 17.3.— P. C— Jones.
The absence of a rule making the order of
Nisi Prius a rule of court, w-lien objected to,
must be shewn by something more than mere
inference from the afllduvits tiled. //<»((•/■
Duggan, 5 Q. B. 0,30. P. ('. - Draper.
An award having been made, and defend, inti
bond of submission having been given to him hv
mistake, the court ordered him to bring it in,
and that it shoulil be made a rule of cnun
Hnmilloxx. Al/nnI, I P. H. i:t. P. C, -Drapn
The court can amend the nisi prius order nfl
reference after it has been m.ade a rule of court
LnurUy. Kui.i.ir, 1 P. IMI.V- P. ('.— Mcleui ;
Where the siibmiHsioii as to some of tli>|
(luestions expressly states that the majiirit;[
may award, this power, though not rernatf [
throughout, extends to all miller.^ referred i\[..r|
which the arbitrators cannoi agree. Thirblh
S/rnrhan, 4 Q. B. ISO.
Where after proceedings have coiiiMioiniil ,i
a replevin bond, the parties to the replevin j-l
to arbitratiim, without the consent of the sureti T
all further jiroceedings against the surety will
be stayed ; alitor where the reference t<i art]
tration takes place with his assent. //«//, |
(lilklanil, llullw K<Uh, I (^>. |{. ."■.40. //»,;,
aiora; 21 (,>. H. 2l»4.
An offer by clefemlant to refer a case to ar
tration cannot be considered as a waiver •■
irregularity in service of the notice of truil
7'/(c Grand liinr Xar'uintion Cn. v. M ';//(■. •■, si
B. 249.
Debt on award made by arbitrators apiHiiiiifl
to value the plaintiff's property, throiigli win I
defendants had by their by-law directed a ni,|
to be made : — Held, that defendants having ;'fii.l
to jirbitriition, were estopped from olpjii'tii,l
that the by-law was not averred in the dfilar,!
tion to have been under seal. WiLsmi v. J\
Municipal Counri/ 11/' Port //(./«■, 10 Q. 11 40.i
Declaration a joint bond l>y defendants M .'|
(4. to perform an award concerning all ditlVrrn^
between plaintiff and defendants, averring;!
award that M., one of flic difniflan/i.
indebted to the plaintiff in a sum nanitil. ati
directing him to pay it by a certain da.\ . !'!•
by the other aefendant, (i., that hvinn- •
execution of the bond the plaintiff li.nl •:;
defendants on a contr.act, which (i. denied l«:
a party to : that to settle said action tlii> l.tl
w.as entered into, which recited the suit, aif
the matters referred were the said action ,iii.l
differences between the plaintiff .and dftViuk
jointly, not either defendant singly : tli.it tiJ
only matters brought before the arliitiatm-s, •'
upon which they awarded, were the said ,iilti
and the matters in (juestion therein, andtli,it;:|
award was as follows : (setting it out in s\lll^t,^l
as stated in the declaration.) : Held, ondtid
rer, plea bad — Robinson, ('. .1., dissentiiij; .ii|
holdine that the bond, under the circtmistanfti
might l)e taken distributively, and each lie id
bound to do what sliould be awarded :vm
himself. Oerrin v. McDunfllH a I., IHQ. H. HJ
The plaintiff sued defendant on a iinml, i^nq
tioned not to commence business a.s ;ui li"i
keeper within three years in a certain tnwiiAl
At the Assizes the case and all mattei's in iMif
encc in connection with it were refeiri'il
verdict was taken for the penalty subject t"
award, and a memorandum of reference eudc
ii. ■■ J
ARBITKATION AND AWARD.
122
, tiif reconl, nigiifc'l ''Y tlie iittc.inojs. By tins
unite iHittti- waa given to tho iirliitrivtor to
I mint- the parties and their witneMscs, cprtify
Jnr'nwt^ iniil "infnil the iilpailiiig-t ; lint it loii
1 ,.il nil ayroemeiit not tii bring errnr, iiinl no
I taxi
\ii iiwanl
Inilf I'f ri'lVii'""' ha.l lietn drawn n|i
Iv villi! '"'*'" '"''*'''''" ti*^'*""' "f tlir plaintitl', d^'-
IjV' ].,j,tiiiiiv."l (oarrcMt .jndgnit'iit, on the gripuiid
llvi t th'- 1'""'''*'"" "''*■'' ^'"'''' l"'i'>K in rt'Ktraiiit of
Thr
|i|ilicat
I'fuscd,
nil Ih)'
■c.niiil!' 'hilt till' arliitralor niiglil fur all that
'' l),i\r ill ridi'd tile |Hiiiil now raisi'd, as
W'l
HO''.
6. Rfi'ocrttion qf liuhnmiioii,
[SeeC. L. P. Act. e. 179.]
A reference hy order of nisi ]>riiii< might bo
revoked liv either party licforc awanl made.
Hiiinll v.'.Milh, •_'(). S. 'iO!l.
W'hi'rr a railw.iy comjiany took po.s.-icasion of
lands withonl innsent of the owin r, and helil
tli"iii fur some time, and an arliitratinn was
agrt'id on, liy wliii'h it seemed jirolialile that the
prii'c would ^>e fixed at a snm very mneh larger
than the i ninpany would lie willing to |iay ;
1 Held, that the i'oni]iany could not, on tlii,^
j ground, levnke the Hiiliniissiiiii. inml Wi •/' rn
I A', ir. r„. V. Mill'i; I2 (,>. h. (i.VI.
' heehiiation on a liond of Hiilnnis.sinii, alleging
a ri'viieation of the siilniiis.siciii, and imn-iier
forinaiice of the award. I'l(>a, that defendant
liefore the awiird revoked the Hiilimi:4Hion (not
saying l>y an instrnnieiit under .•.^i.tl). Ilejili
eation, th;it the liond was exeeiiled after thti
( '. I,. 1'. Aet, IS.'iCi, and eontaiiied nothing
to slie-,v an intention that it HhoiiM not lie
made a rule of eourt : that the revoeation in
the deel.tratioii and plea mentioned is the same ;
wherefore, and liy force of the statute, the arVii-
, . , 1 ^" j trators were eiiipowured to and did iiroeeed not-
that a demurrer alterwanls set down ^-ithstanding, although defendant did not attend.
, ' I 'i,| niiwtl' to do, or the award might lia\e
, ,|.„,|| Hniiic other matter connected with
thi inntiiiil ; Held, no rule of reference having
Ibi'iii "ini"" "I'l "'''''' "^ ciiiild not lie assiiiiied
Ithit ilcfpiid.iiit had referred on the ordinary
Icimaitiiiii i"'< '" '"''"K •''•'""': 'li'l''- "'«". ♦'>'■*'
lif till' niiitiiiii had lieon after verdict, without a
Ire fill iii'i'. liefeiidaiit must have succeeded, for
thi '•Hiitinct liciiig in restraint of trade, it Mas
npccss.irv til shew
,,„.;,r,.ii ill the ilei
>){>. II. i:(»t.
Wluic ii ''■iii.'*e and all iiiattirs in dilVereiice
[,,1 lii'i'ii ii'fcrred, and an award made : Held,
fchiit I'll (|iH'stions of law as well as fact were
kniiiiiitto
for
a considi'ratioii, and none
aration. />(//;v.s v. Wilkin-
nniiiH'i . "•'•■ ■■ - ■ — - ■ • ■-• •• I wunstaiiiiing, aitnongn oeiennancuni not attcno.
r ,ir;'iiiiient must therefore lie struck out o |{,.j„i,„i,.r, that neither the Imml nor condition
,, i,,i|ier: ami that o ijcctions t.. the award | „.,^^ ,^^ j,,,, ,.,„„„„.,K.,.nieiit of this suit, nor at
l,.„l ,|,„„i Its lace eoidd m.t lie rawed as giving ^,,^, jj,,,^, „,■ j,„. ,.,.,.,„.ation, a rule of eourt, or in
M.rlit tliii." to Iiroeeed with the action. .!/'•- I „„,. .,.,,. .,v...„..f...I tv,..., ♦!... nHV„.t ..( d,., „,;.]
iruhttliiis to proceed with the action
r„Vi(/« V. M'-miiiiiiii, •J'i (,,•. II. I7">.
Wlitii' plaintitl' sued an attorney for the
piimiit lit an account, and defendant set ofl'
everiil hill'* of cost.s, including three in the
oiiiitv Cniirt, several in the hivision ( 'oiirt, and
tiiiii' till' iii^iilveiicy and eonvcyaneing, and the
disc was I'cl'erred ; and after the reference,
liiiiitiir. an unprofessional man, signed a memo-
Hiilniii as fellows : " I admit the within account,
Blijivt til „i.\atioii of all items that are properly
ixiilili' liy \V. Niirtlirnp : and I agree and eoii-
tni tlial the arbitrators in the within cause
liiw tilt within aicount in the arliitratinn, suli-
I't tu ti\.itii>ii of all items, jiroperly taxable as
tt'firi'siiil, charged for costs in suits:
hat niit iiiily were the costs in the ( 'ouiity ( 'onrt ',
aits tiixaliie. lint the costs in the Division
Viurts. insiilvency fees, &c. , were also taxable.
■,ll,n. Iln„hr.s!„i. ] L. .1. N'. S. I.T.». ('. I,.
haiiih, Hagarty.
any w.iy excmiited from the eH'ect of the said
revocation ; Held, jilea and rejoinder both bad.
Mo.«/ V. Clo.^lrr, Ui(). 15. 4!l().
Seinble, that the restraint uiioii revocation
without leave of the court or a pidge, provided
by 7 Will. IV. c. :i, s. ■»), is extended by the C.
L. I'. .Act, IS.'iii, s. !I7, to all sulimissioiis without
words pur]iorting that they are not to be made
a rule of court. ///.
On an ap]ilication to be allmMil to revoke a
sulimissiiiii, the discretiiui of the court ought to
be exercised in the most sjiaring and cautious
manner. In this case revocation was allowed.
/ii IV W'riijh' mill till < 'iir/iiiriiHiiii uf (Im ('nuiiti/
Heli'iy I <;/■ '•''•'.'/, H I'. •'. 104. I'. ('. Huiiis.
Held, that under the declaration in this case,
which was on the lominon counts, the plaintitl'
clearly coiild not recover for damages of any
kind ; and the plaintitl's counsel having admit-
ted this on theapjilication for leave to revoke, the
I'lKliiasiiliniissiiin •'todcterminewhicliof tho I court would not revoke the .submission on the
everal items of claim the estate of Mrs. B. is
Ciiiiil as matter of law to pay" : Held, that the
(tliitratnrwas aiitliori/ed to consider the liability
jor interest, although he could not correctly tind
|h( aiiiiiiiiit line. AriiLitriDiij y. Cniili)/, '2 ( 'hy.
lliimli. I'JS. Mowat.
Sonilile, that a reference
ground, amongst others, that such a claim wan
being entertained by the arbitrators. Jin.w v.
Till Ciir/iiiriitiiiii iij liriii-i , i\ ('. I'. 41.
The arbitrator appointed by one of the parties
having refused to aet, he apjMiiiited a new arbi-
trator, who formerly acted as his attorney, but
if " the iilaintitl "s ' not in this suit; Held, that the submission
niiii in this cause, and all matters in dillcrence ' must be revoked.
.1. N. .s. -n-t
W (
Tiillji v. (' /hi mill rill ill, 1) L.
NIorrison.
(twueii the parties in this cause," refers only |
ke matters ill dispute in the cause. Wiin.-liiir.l . ,-j,,„, .^ reference to determine the damage
■'""'"'• -'^ ^'- "• ■-"'■ I sustained by plaintitl' by reason of the tak-
l.Vtttniliiue before arbitrators and going into I ing and detention by defendant of a certain
ifc hy eiiiiM'iit ell'ect of as a ]iarol submission. I schooner, the arbitrators awarded §2,200 tim;. ;
■Hi'Uv. Minn/, 4 (>. .S, ',V!r>; h'lillin n v. /'imMlii, ' and, among other items, §40 for travelling and
jf'liy. UTO: Mi-('nlliieli y. While, ,T< i^. B. JiSl. law expenses. Upon a motion to set aside the
award, the court, without iMlniitting the legality
of the charge, refused to interfere, it being the
duty of the party objecting to apply to the jndge
upon affidavit to revoke the subiuission, and not
|Sw'0'/i,ii7/„,'/,/v. Fnlirill, 1 1 Q. B. 6.'), p. 130.
jsco V. p. i;tii; VI. I, 4, pp. 137, 140, and
X 3, p. kS4.
\
i-i
IS.T
ARIMTi'iATlON AND AWAKD.
121
i
tfMdiitiiil hiiiiMlf Mitli iiidfly n)pjc(.'ting to tliu
allowaiHiMif (111 itriii liv tlir; .u liitr.itiir. I'urri/h
V. FnrfKii', l-J ('. r. ."><)».
Where tin: tiino for in ikiiix n\\ .iw.inl iiii U'V
11 »nl)iiii.'<Miiiii niidi' im onlcr nt court li.w .\\-
])iruil, mill till' ii.irtii'i iittcrvvanlH nu'L't liy co.i-
sent, Miirli iiiiMtiii>.'H ip|)(Tati' iis ;i iiuto jiiii'ol
Rul)ini«nioii, wliirl; \* ii'voi mIiIo ; ami if revoked,
the time for iiiakiiig an award iiMimt afterwards
l>c eidarycil liy the court ; and (he )iirty ni ikinj,'
the revocation will not lie restrained from merely
prodceulin;,' his nuit fmni the |iiiint at whicii it
was arrested l>v the reference /'>if/irii y,
l{u/>.^iii, H ( 'hy. .'ITO.
7. S'lhiiiUKliii liicoiiiiiiij Aliir!''''-.
Where a verdict his hocn t iken liy consent
for jilaintill', fnlijecf to a refcronee, the court
will not, on acconnt of the f.iilnre to nnke im
award, allow indiiiiicnt to lie entered for the
verdict, tlionuh runh failure lie iiii|inted to ilefeii-
d.a' t. U'<ii.^,iii V, Fiillin-'jiU, .")(•. S, l.Ti,
\ 'hero a vordiit hid lieen t ikon in iHtiO, siili-
ject to ii reference, which was never proeccdnil
with, and a second \ erdiet was taken in 18(13 :
-Held tint the second verdict was irregular
while the lii's^t, rennined, and nii'.st In' set aside
with costs. Ju'h, V. II,u,ln:-uf,, W P. I!. I!»S.
!',{'. -Draper,
Cause referred .U ni-i |iiiii.-, .md widi' t t ikni
lir the plaint ill', hiilijert to a reference, award
to he inidc liy a ciM'tain d ly, \\\{.\\ jiowir (o the
nrhitrators to enlirge the time : they diil I'liliriic
it once, lint no award «as inidc, and after th it
day was jiissnl tli(> dcfi nd mt'.'i allorney \\.\.i
asked liy the pi lintid s atloiney to cuusent to ;v
further ciiliigemi lit, and declined ; n'i,i|iplic:ition
li.id licf-n III idc to the ailiitraloifi. Tlie court
held they could do noiliin;; more III in set aside
the loiiditioli.d verdict. Miittl..iii> \. h'l/n , .'»
(,>. B. 171).
Ac;iu<-c«.i, reierriila! ni i priu ., ihcaw.ird
to tie made liy the hit of .liil, , willi Ic ive to (he
arliitr.itor to eiilart,'e, hut. no micIicI w.i* liken.
He eiilar;^! d the time unlil the -.lud of Augiisl,
anil after he iriiii,' the e\ idi iicc ,iiljournc 1 till the
4tli to enaMe dcfiMdants to procure their wit-
nes'-.en. Neither (larty attended a'..; liii, nor took
any Rtcji.i to procnri' .i further en! u';,'cmcnt, ;ind
the plaint ill' gave notice of trial for the autumn
assize^:. I'efcud.ints notilicd him th.it I hey would
move again.;t the pro( ccdings, as the order of
reference w.is yet in force, liut the iilaintilV
went on and took ;i verdii't, defendants not
a|ipeariiig: Held, that di'fendants, if llicy
desired tie" reference to continue, should liavi'
applied for .in cnl.ircement liefore the verdict,
and that liy omitting to do so they had waived
their right ; Imt under the cir iim.stanees the
verdict w.i.s net ••iside without cost.'<, upon an
allida\it of merits. ,!/;//.,■ v. //..;/;/, •_' P. 11. •-".>!•.
•"^ee, al-o, Unlln: n v. I'n.. in. ,S ( 'liy. ,'170, :aipr,i ;
Molt y. /,oi(,'/v. T. 'I'. I .t •-' Vi.t. p. I7-*; <'"ii/.l
V. />'.///.'■., :; t,>. r.. •J7(>, i7-
1 1. \'n:i;r.-.ii:N i . lo i;i:i'i;i;.
1. SliljUi;! ri'iirii'lhl^r. niiit.r ('. L. I'. A.I.
Hy a condition endoivcd on a policy of insur-
ance, the conipany re '.crvcd to itnclf the power
I fif having the, lojia or d.ini ige .ailiniitted to tli.
' jmlgnicnt of arliitiators. .\n action having hern
! Iiroiight on the polic\, and an application mail'
Inndert'. \,. I'. .\ct, m. I(i7, tost.iy proceeclings
Held I. Tint the arhitralion intended hy tli'
t londition was not iik rely a valuation. L'. Th.v
the agrci ment hctween the jiarties was not Vci;,|
^ for w.mt of mutii ilitv, '""I tli''t the eaao earn'
1 within the seone of tlie statute. .'!. I'or iJalton
>'. I'. .!■ /'. , tliat the iilaintill' was a "party
within tlie inoiniiigof tliat seetion. I'roeefidin'i.
Were accordingly staved. Mi-lniui v. Wi^tr,-
/l..<^//vn/fv (■„., ,-) I». K. '.U-J. - t;. L. Ch.imli.
I Halton, I'. I'. .1 /'., and (iwynne. Allinncil i
j 30 (.). 1!. ."iSO.
Where parties hid agreed to refer any fiitiir I
ditl'erences that might arise under a p.irtner.slni
lictween them to arliitration, and one liled a lii!
for anaccimnt, iiijiinelioii, and receiver, pim i,':,.i.
ing» Were stayed under the ( '. L. ['. Act, tliiiii;i.|
an answer had lieeii tiled in tiic auit, and the lulif
eontiined .lUcgilioiH of fraud. U7/i/c v. Kh
- (hy. Ch mill. U I. Taylor, .Si iTildri/.
2. mil' r Can..
L'pon .1 coven lilt ill a lea.so that in ciuso of lirtl
a fair diMliiction .should lie made in the rent, tiT
lie ascertained liy arliitration as jirfivided, wiicrJ
icilher had .ippointed an arliitrator : Held, tluT
the t< naiit w.is not pri'cliided from niakingii iiml
the inediuin liy wliii h a d(!ilnction was tn '.|
made. <iln ore, if the Liiiillord had oH'troil
arliitiMic, iLiid the tenant h.ul refu.sed, couM tl:'|
reduction then lie referred to a jury. Mif!lil\
l'r.,ifl/„u\ I (,». I!. 33.
(•cfendant liired plaintill' to mike I'er ii-
cerl liii inaehine.'i and superintend their ii^ :
hi.'* Ill iiiUl.actory I'm' live years, iinlesn liiiirj
terminated a.s therein.iftcr )irovided ; ,ini| \\
ea.-ic of f.iilnre of pl.iintill' to perform fiillv irJ
agreement, it might lie terminated at (
d iiit'.i ojition liy written notice, and the pliimil
.-lioiild lie re.ipoiisilile to defeiid.'int in ii,iiiia;<
I for .such failure ; and in ease any dispute .tlviiilJ
arise ;i.s to the .siiHieieiii'v of tin; machine; J
j jdaintitl 's )ierlorm;inei! of the agreeinrnt, i)sj
I H.vine shiuild he referred to three arhitiil'ir'!
chosen in the niinner stated, their dei isi'>n ;
; lie linal. In an action for wrongful disiiii.i.ijli
I the pl.'iiiitiir : Held, that the agreeimnt ton
: lieiiig ( ollitcial, and not ;i condition pir.nl
1 to the plaiiililV's right to ;aie, I'fiiild Hot liiii:!
I action. f. '/;;/;/ ^ \. liilliii'jliiii, -21 i}. Ii. .'i'."!).
A 1 I r.
. |i\Sc|; OK Wl'I'NKSSI-.s \Mi
rioN Kf I'A [HK.MK.
I-IIHI'
|Sec :!(1 Vict. e. Il
O.
I'll ,111 application under 7 Will. 1 \'., i
30, for an order on witnes.ses to prodini'
mcnis liefore an arliitrator, it mint hey
tll.lt they ;ire such a.s witnesses would i"''''l|
pclled to prodni'e at a trial. Ctirrn'l v. /i'",
I,. .1. I-.'. ('. I-. riiaml).- Hraper.
.\ii order comiiclling atteiidanee of wilii'
under tint section will he granted on aiiivi*
.ipplic.ition, upon allidavit that the eiiiisi 1
liecn duly referred : that the. arliitr.itor k
a]i]iointid a day for iiroeeeding; .ami lil
eortam parlies (giving tiuir re^ipeetive [ila.'pj
12.>
ARBITUATrON AND AWATlD.
120
• |,,||,,.) lilt' iii'i'inHiii V ami iiiiiti'iiiil w itiit'SBiH
r'p'lhr ipiiitv iiplilyiiiK- '-'"/'"'" V. (';l/„„, ;j I,.
I, ,7 f. I,, rimiiil' M^'Iauii. r„n;>ll v.
r«„//' .'I I' I '-• *'• !'• *'i>""i'' iMiiiHT.
I I'piiii :i hiiliiiiiMriii'ii to urliitnitiiiii lu'liig iiiiulu
I ;.,|,.i- ,,l' .•..iirt, u unit is piiiiliiiL! witliiii the
|„„.i.>im-l '••■'*• ''■•'■.• ■•'.»■ •'• >"' a^'t.Miml.lr
Itl . iMiili"'' I "'"'t'* *" ""'"•' I'riiii'Hs til rip|ii|ii>l till'
latii iiiliii" '■ "' « 'tl"''^'<''^' ri'«iili'lil mil III tliiir
I'l , ill't'""- /'■"'"" ^ .','""/''''///. I vw;/('i())i, r,,,,
II ;|(t, I 'liy. < 'li:iliilp. S|p|;i>'vi',
I \ . Ai.i:ri i: \ ini:.
I, /•;■.,.•!., /;»;/,■.• I,j\,,:.
^■|n.|',. 'V illtlUC' llHii lircll li'fi'l li il, lliilii I' 111 till'
•(, III,, ,,f till' Hlliitintnrs liillMt, 111' riMIl (ii till'
»tl..rii'> 111 1 1'"' '■•'""'• ""' ''"' l'iil>- M'<iii \.
'Krcin'.'IXV' •'•'•"'■
I Wlitri' I'itlii r I'iiit.v U> an ai liili'.itioii ulijiiti
:iii im'jli'l:"'',v '" I'liiiiliiitiiiK <li>' ailii-
latiiiii iiM, liir iiiMtaiiri', In a I'lrtaiii |nr.siiii
uliLiiiii:il'i'iiio ^'"' """' '" ""' "'tiii''*<''i ami
.i,.j Iii4 1'iiaii'i' III till' awaiil, In' i aiiiiut altfi-
«f,ii| uii till' :<ani'' ).^r'>iinil, ini|ir;nli tin' iiwanl.
fc,„/\. l/./'.i"/""". '"I <.'. li- I^H. !'■ «'■
IcUaii.
I'lie (Hint ;;»'t .i:iiili' all a\uiiil inaili- iimlii' l(!
But. I'. I^li '^' ■'•'• ■'•'' *•" ""' 'laiiiagin to In' |iaiil
:i luiilv tliriiUi;li w Inwi' html tin' niiinici|)ulity
ill i.ijiiiiil a iiiail, wlicri' il ajipi aiiil tlial iin
jDlki' liiiil lii'i'ii K'^'^'" t" till' liiiiiiiii|)ality 111' till'
Cct.tluK<il till' arliitratiii'M, ami that im uni' Inul
jtciiiltil nil tlifir lu'liair. Ill n ,lii/iiisoii inul /In
li,,;.;,.!!!'!! "!' <•'■""■'<'■'■' i-'".>. I'- i.'t'"'-
'J. I'liii'i i'< mill ilii/i/ III'.
(a) <!i III mill/.
' StiiiljU'. tliat niiiiii a gi'iicial iifi'i'i'iict' at Nisi
kwi, tla^ ai'liiti'aUu'M iiiiiy, as tn tlu; uiiiiiiint iil'
be vti'diet, lie gnvt'iuoil liy niattiTs in favuiii' uf
ifiiulaiit which c'onld nut liuve lu'tii lirmight
1 iiiu'stinii at the trial. Alsii, that \s lifii; llio
lircliLt Is iiiteiiilud 111 In; a tliiul ■sitlli'inLiil bi;-
teeii tilt' ii:irtifis, tln/y may niii'iiilor inattein
Bt uiiibiuct'il within the teehnii.al stateimnt of
Be causes ul' action on the lecunl, w hen ailvanceil
I till.' pit ut the jdaintiir. W'li/yuii v, 'I'lirniiln
('„., :, Q. n. .")■_•;!. See iii'ju ir,7/;.(;,(s- v.
J,«nV. 10 ()■ It. •-•■».
[All UL'tiun aj;ain>.t a railway eumiiaiij I'ur iieiiii-
b.iok water, ami than preventing the U'le of
Hiutill's mills, having been referred, the arbi-
Itiir. awanleil £'Mi) damages : --Held, that it
nut be assumed from the fact that the
Uiiuil rental of the plaintili't) mills was only
, lliiit the damages had bei'ii given for more
Ui iix luouths before the suit, and Senible,
It iiibitraturs, when not restrained by the
iiiissiiiii, arc not bound as jiniges are ill a
U'Ini V. annul Tnnil /.', 11
(li't III law.
.;i77.--P. c
Co.
-Burns.
Ill an ailiitratiiiii under ( '. S. I'. ('., e. .'il,
the arbitrators did not take or liie any oral
or doriimintary i\ idi'iire iiiidir s. It.'tS, Hiibs.
Ml, but ri'lli'd 11111111 the Uniiw li'il);!' which two
of them bad nf the |io.->iti 'f the miiiiiei|ialities
towaiils each other with relation to llionev
matters, and iibtuinid the s|iei'ilic sums on which
their award was baied from the bunUs of the
county triatiiier. These sums were shewn to
the W iirileii at the last meeting of the arbitrators,
and (heir correelness was not ilis|Mlteil : Held,
Millicient. Ill /'I '/'/(' ('ur/iiirii>i'iii III' llii I iiitnl
t'liiiHliiri III' Siiiiliiiiiilii rliiiiil mill Ihiiliiiiii, mul
Till I'lii-fiiiriilinii o/ r,il.,„i,y, -Ji)*). li. •JIK,
Sie \ II, I (:i) |i, l.'.S.
(c) '/'il III, II III/ /II. li, 'lililli/!.
\\> acli M a bond bir the |i<'rfiirmalieu by
dell nilanl I', uf bis ibities as collector, Wan
I reb'rrcd :il nisi piins, with the s;ime (lower to
!the iirbitralor as the iiid;',e had to aineiul the
I |ilcailings, and iiiiiler this he .'dlnued pleas to bu
j added, one of \\liirb raised the del'ence that the
I sureties Wile iilicMil li\ all extension of time
j given bir the colleelion, w iiich i|Uestion he referred
I to the court, with others. I'er McLean, ,1.,
I the nbic'liiin Mhniild Hot have been allowed by
the arbitrator. I'm/i/ v. /V, ,//, -.'O l^ B. till).
Sei' .V, c. ,',/ V, »■„•,/,.(-',, -J I,., I. .N.S. II, pKU.
(d) h'y /iiiii.' I'i;,i;iiriiiu<-
llelil, that upon the facts In the case, the ar-
bitrator wa.H iiistilieil ill proceiiiiiii' e\ parte.
I',;,i-/ni- \. .Iiii-r'i:, l.'it^l. I'.. |,S7.
Bcfiiii' an arbitrator proceeds e.\ parte, liu
Mhoiild satisfy himself by [iioper e\ idence that
necessary notice of the appointment has been
served, .>;o as to t nabh' the party notilied to ap-
])eai', ami it should clearly be shewn that the
absence of the party notilied is w ilful ; nor
should he proceed ev |iaite, unless the nutioo
conveys the inforiiiit ion that ex parte proeeetl-
inga will be taken if the party served iloes not
attend, nor if a r.a.ionable excuse is given for
such non-attemlance 'I'lie party pioaecutiag
the arbitration mi'^lit to take care that all proper
iiotiees are served mi the' opposite party, and
should be aide t isliew, if he desire to proceed
ex parte, that the other party ha.i been properly
notilied, and that he wdfuliy absents himself.
A party, thereloie, w Im bad not fullilled his duty
in this respect, was ordered to pay costs, and the
ease was refeircd luck. /// ;t /\>//ir v. hini/i/i,
,'. I'. I!. I!)7. I", i;. CuMiiic.
(i,') Dilijut'iuii Ait/hijr'dii.
Award held bad for dele^'atioii to third par-
ties, ill awarding a di\isioii of property by per-
son.'j to bo selectL' I l>v plaintill' and defendant.
JIm-r'iiiii/ III V. L'I'kuu, 'll t,l. li. Ilk
(b) Erkhiii'i mid ]\"diir.-<!i('S,
liu .iward will be set aside if arbitrators ox-
Biie one of the jiarties upon oath when not
|lioii/i;(l to do so liy the submission. SdnViiui
■ ••b, Tay. 49--'.
(i) H/a'.'iiiij i-a i' for u/ iniun of Court.
Whore the referem u wa-', " with power to the
arbitrator, if either party reipiires it," to submit
questions of law to tin.' court :- Held, enabling
only, not eompulsory. I\i.t/iriii v. /.looili-rlmiii,
•JO t^. B. .".00. Sec :■! o this ea;e. pp. I5i;, 157.
• lit
I'i
-.1 ,^n
I.
12:
ARBITRATION AND AWARD.
128
f. Miii!
u
The reference was expressed to be "subject
to such points of law aa will properly arise on
the pleadings and evidence :" — Held, that this
rendered it inipfrative on the arbitrators to state
for the court any legal point raised, and to dis-
tinguish, if reiiuired, the subject for which they
awarded in plaintitl's favour, if any legal ((ues-
tion was raised applicable thereto, /'iw" v. I'm
fionttiuii i)f liraet; "21 C 1*. 41.
The arbitrators having neglected their iluty
in this respect, the court refused to refer the
matter back to them, and set aside the award.
Huxs v. Corpontliun (;/' Briicf, L'l C H. 548.
See, also, Miirphi/ v. Cul/uii, 14 (J. li. 4'J(i.
See U'el/.i v. azuwdi, Hi y. li. 4l», p. l.JO : i
Vvot/i iJiiiiii v. Di'iilmlm, IS Q. B. 'J14, p. ISli.
ages to the partner losing by such cancellatioh
(•nnixv v. I'lirkc, (i «,>. B. :{(i2.
On a submission between A. and defendant,
described as executor of B., of all matters in tin
ference between the said parties in referencu i,
the buaiues.s carried on by said A. and B. in (lart
'ursliip, with liberty to the arbitrators to oiiln
and determine what they should think lit to l>.
done by eiliier of the parties respecting the uut
ters relerred : Held, that the arbitrators coiil.'
ortler a sum to be paid by defenilant absolutfly
not merely as e.\ecutor. Miill'i inn v. Wrlflil, \(
tj. B. 40S.
Sec MrL,,,,: V. A'< :((;•, .'l C. V. 444, p. l.j.'j.
(g) Whf)i Vinlirl tiibii.
Where a verdict was taken, subject to be
reduced, the costs to abide the event, an award
for defendant was set aside as beyond the
submission, the arbitrators having power only
to reduce the verdict, and the condition as to
costs givhig no authority by inference to deprive
the luaintiff of them altogether, but applying
only to the amount of costs to l)c ta.\ed. Shoir
v. Tiirtou, 4 (). .S. 100.
Where a verdict Wius taken for Is. damages,
subject to an award, ami the award did not in
any manner dispo.se of the verdict or cause :
Held, not tinal, and bad. liintlii v. Mr/iitiii-li, 4
Q. B. •_'.".!». See, also. A',,,/-/// v. 7.>.^7.,•, 14 (). B.
•.'r)9.
.■\ verdict was taken for plaintill', subject to
lie reduced, increased, oi' set aside, and a verdict
or non-suit to be entered for defendant, under
the provisions of laeC. L. 1*. Act. The award
directed t!iat the plaintiH"s verdict should be
set aside and a verdict entered bu' defendant ;
and it further awarded a sum of money as due
.lUil osving from ](laintitl' to defendant on a set-
oH' :- Held, that the award did not in terms
direct a venlict for defendant for any sum of
money, but even that if it diil sucli an award
would be jiroper under tile reference. Mnrli/n v.
l)H:i„ii. •_• L. .1. .\. S. L'Olt. r. ('. A. Wilson.
.■Vction on tlir common counts. I'lea.s, never
indebted, iiayineiit, and set-oil'. A verdict was
taken subject to be increa.sed, reduced, oi' a
verdict entered for defendant by the award of an
arbitrator, who directed a verdict in defendant's
favour for .*7."iO, under the plea of .set-otl' : Helil,
that he had power to dn sn. .Inhiiilnii \. Aiiiiliii,
•Jit (.1. B. ;t7--'.
Sec ir<7/<'i/i»- V. S.jiiinr, 10 (,». B.
Se.'. \|. 7, p III.
M.
I,VJ
(h) h'lujiiili .t In hi:,, 11 I'ltrhi, i\<.
Where arbitrators were authorized to dissolve a
partnership ; Held, tluU they might, in order
to adjust the terms of the dissolutiun, award
upon disputes arisin;^ as to the partneislijp sub-
seiiUent to the submission. 'I'hivkill \ . Sliiii-liini
4y. B. l,H(i.
As to the power of arbitrators, under a very
general subniiLsion, to cancel an existing part-
nership agreement, and award prospective dain-
I (i) Diri-rliiKi Manner of Poi/ininl.
Arbitrators may order that notes be given in]
! satisfaction of the sum awarded. '/'/lirbll \
\ S/rii,-l,un, 4 (,». li. \'M\.
Defendants gave plaintitl' and her husbaiii.L
lioml in iTilX), conditumed that if plaintiBshuuli,
survive her husliand, they would maintain heiic I
her house during her life, &c. An action broujili
' on this contract was referred. The arbitral';,
awarded that defendants should pay plaint;:
t.TOO, on or bebire the "JOth November, IS.'iL', i:.[
full of the causes of action in the suit, and ut aJ
matters in dispute referred ; and further, tlml
'■ the iilaintitl' should not enforce payment of saiJ
j tTitH), provi<led defendants should respectivehl
I give the plaintitl' gooil security on real estate iiiri
the payment to her of the following sums, thati
is t<i say, setting out certain mortgages tn \A
' given by each detendant on or before 1st iJuanl
lier, 1S.")'_'. I'laintitl' declared on this in del)t, ,15 01)1
awai'd "that the defendants should paytutkf
plaintill' foOO, on or before the iJOth of Nnvoifrl
I ber, IS.").'!. ' Defemlants ilenied the award lil
stated ; and in another plea set it out aiul alltge>il
that it was void, as beyond the authority of thtr
I arbitrators : Held, that there was no absdlKt
claim to the money on the "-'Oth of NoveiiilM.L
as stated in the declaration, but the right vl
1 action was suspended until the 1st of DeceniWrl
j and would then <lepeiid on the execution ut ttij
I mortgages as directed;- Helil, also, that thtl
award was void, as the arbitrators hail excecitel
tiieir power in giving damages not recover.iUcsl
: the cause, and in ini|iosing conditions IjcvmlI
■' their authoiitv. //'// v. //,//, I I y. li. •.'(;•/
i .An awai'd directing that tun defemlants HJiMuiij
'give to plaintill' a gootl endorsed negot lablc [M
inissory note for the sum bmnd due: llrl
unauthori/ed. (,'i<.;-;/» \. Smilli, 4 ( '. I'. -!M.
Such an awai'd means that they shall ^ni
their own note, negotiable, with an ellllll^rIl
a note made by one [layable to and eiiddi'^il If
the other, will not siiilice. /I:
Where a reference is general, as of a (uiitn
and all matters relating to it, arbilraturs i
name a day for paying the pioney ; liiit itl
dili'eruiit vvheie only a cause is to be deciiluil uf*^
Aililimn \. Cnrh,!/', II (.). B. I'M.
H<j|d, that a dii'iicti(>n to pay money t<i F.,1
stranger to th« refercnue, could not be uphtl
/» >'f (',im,,l>,ll ami firown, '2 P. R. 291. P R^
Richards.
12S
llatiui,.
iiiilaul.
I in ill!
UllCf li
ill \un
to oil lei
tit t.l Ik
the iiiul
irs L'lml.l I
solulul\.
rljlil. i'
15:5.
nt.
given 11'. I
■hirhll
I-':'
ARBITRATION AND AWARD.
130
husliainU
itiff slioul'.
itaiu litv It
on brougk
arbitratiir:
iy plaimii
er, IS'vJ, K
;, autl 111 al:
Lirthtr, tlisi
iient of sau
vespti-tivil;.
Ill estate \i'.
^ sums, thi
,gages til U
i 1st iJfCtUl
u (lel)t, as IE
I pay to tk
h (if Niivoii
le awaril ii
iinl allegei'
iKirity iif tt<
U(i alisiilKt
>^oveinl«,
tlie nj^lU':
f 1 )ei.'t'll!ln:t
utitiii lit tit
so, tliat thi
iiail i'Xoocil«
ooveralileul
ir.lis VieV'i:
V,. •-'(«■
l.laiitssliiiuJ
iiotiaUeV^I
Hue: IWi|
\'. '.'ill.
Viliitiatiiin on ereitimi of town into city.
Jlaiiiiij.' awaril letrosiieetive anil giving time for
^iviiiiiit : llelil, aiitliorizeil. Limiting tlie eon-
Itiiiuaiui' iif the awaril, ami authori/.ing a ratable
ivis'iiiii iif expenses insteail of settling a sum to
iiaiil : Helil, not anthori/.eil. /ii iv Tin
iiiii''(i"il ' '"'iifil "J ''" ' '"""'// <;/ Molillisf.!- iitiil
,1 \liiii,,r III' till ('itji iif Limdiiii, 14 (^. H. .'J.'U.
lleM. ill all aetioii between seliool trustees anil
i'lclier, that the arbitratoi's exeeeileil their
Her." ill avariliiig pavment within thirty ilays.
,„„/,„■./- V. Hull, l!M\t. 15. i-m.
I'lie >iiiM awalileil was ilireeteil to be paiil
'oitliwitl'- whereas the statute miller wliieh the
ifeieiue was iiiaile allnweil a year from the
iwii'l, 111' fi'oi" ''I'.V I'l'^' "f I'liui't onlering pay-
iit ; Helil, that this part of the awaril, wliieh
s clearly bail, might be sepaniteil from the
t III n rill ('iir/iiiiiifinii iif'tliiCiti/ 11/' '/'iiriiiihi
(i. recovered a jinlgment against M. undC,
).m a iiiitemaile by them. One.], was also saiil
' ,ave been interested with them, and liable
ir tile ilebt it represented, though not ai^tually
(iitv til it. It wa.s also said that he was in
til partner with (!. in the transaution. M.
c iarjie (layments on the judgment, but C.
id nothiiy. L'pon a referenee of certain mat-
's in ilispiite Ix-'tween .1. and M., it was left to
arliitiatiir, amongst other things, to deter-
,iu- wliL'tlier ornot M. or .1., or which of them,
iahle, or to what e.\tent, in respect of the
ninciit or the promi.ssory note wliereoii the
iiiK'iit was recovered, and to make any orders
iiiii the arbitrators should think proper to set-
the liabilities [of the said parties in respect
reui. The arbitrators awarded, that J., as
men liim and M. , was liable to pay all the
aiii'u il nioiieys still unpaid upon the judgment,
tliat J. should pay and satisfy the same with-
(lUc ealeiidar month, aiul should cause the said
iiiKUt and writs of execution to be satistied
Jiscii.'irgeil, and satisfaction to be entered on
roll iif the said judgment :~Held, that the
•r [lart of the award (which was objected
»:i.s authorized. In rr McLviiii v. Jmici
i. S. :<. '.W.— P. C.-A. Wilson.
shall HI"
■ n I iiiliii>ri
lelliliiri'
\4
li^tStiinii-' y. Wihulii; L'OQ. B. 4t)<t, p. 150;
-i,/ V. Jliiiiil, l.j (.'. I'. (J13, p. 155 ; y>i(//(i/i v.
hS'rl:!; ol'hy. 501, p. 155.
(j) (/< Paiticiiliir
irllllilllj III /.(/(«'. 1 -
C«SCJ».
Award of urbitra-
Lf a I iiii™
lilraliiv^ '
ly ; Imt it«
lieciileil M
(ley t.l 1'..
l)e iipW
IH. VRJ
lii(/t;'*
, under .1 bjiecial submission, to determine
^title tu laud in dispute and cuncurning certain
-Held, authori/ed. L'lkntt v. Wliiti-Uinl,
H '.'iil.-l'. C.-Jont'S.
Uuire:— Have arbitrators the power, under
fict . e. .'IT, and 10 & 11 Vict., c. 'J4, to award
Hi'mii'iitial damages. ('KKo/ii'^yioiif/v o/' Publii
|ri.< V "«'/,'/, t> Q. B. 33.
^tld.pereiir, .McLe.r.i, J. ,dubitaiite, that under
Igentral words of the submi.ssion in this case,
lority wa^ given to arbitrate aa to the fee
Bltui land in dispute, if a mutter in differeiice,
Ichmlut be presumed, litncdul v Piirh, 1
'~3T0.
jiaiiuift iield from defendant a lease of a farm
It rm unexpired. Flaintiff and defendant,
y
with 1). and M., became bound to each other
by bond, with a condition reciting that the
parties had agreed to separate, and cancel all
arrangements theretofore made, and h'ave all
controversies between them to the arbitration
of T. and P., and slumld they not agree,
to choose an umpire whose decision should
be final. The umpire awarded that defendant
should release and give iiji to the plaintitl,
"the term of years, as agreed to in the
submission, and also deliver up the stock
of farming utensils in proiier order, and without
further delay, and that the lease then held by
both parties of said farm be immediately can-
celled :"- Held, that the bond was not in itself
a surrender of the term ; that even if so intended
the term would not be surrendered, for the
bond could not be held to be such a deed as is
reiiuired iiy 14 & 15 Vict., c. 7, s. 4 ; tiiat the
award would not amount to a dei i of surrender
by the defendant ; and theiefori vi.at the plaiii-
titi' could not eject the defendant. < i' Oiiirjlii rti/
V. Frdinll, 1 1 t^. H. (i5.
In this case the arbitrators awarded a certain
sum for the defendant's inteicst in the lands as
lessee, ' a;:d for the lumber taken by the said
company now piled upon that part of the wharf
taken by the said company" : - Held, that the
arbitrators had no power to award coinpensatioii
for the lumber. (I'na/ \\'i<lif' A'. IT. Co. v.
Hum, 12 y. B. l'_M.
The awards h\ these cases, making special
provision with regard to the rupairinu and keep-
ing up a mill-dam, &c., were held bad as beyond
the submission and power of the arbitrators.
/m )v /lalei/ V. Knii! I P.R. 17,S.-P. C— Mc-
Udii. Ahhiilt V. Skiiimi; 7 I-. .1. l.^S.—C, ('.—
Mackenzie.
T'lie submissioii after recititing that the com-
pany had located tiieir line, so as to run ai:ross a
portion of the land of the other party, and that
disputes existed as of the value of the land
required and also the damage the said party
might sustain thereby, referred "all disputes
and ditlereiices which exist Ix'tween the said
parties." 'I'hc arbitrators included damages for
slasbii'j Jo. * on either side of the line taken by
the co'upany : — Held, within their authority.
(h-ei-t U'liUni I{. ir. Co. V. Vliaiiiun, 1 P. K.
•'■'^H. -P. '.'.- Draper
Til.; parties to this suit referred the uiattei'S
in diti'orcnce between them, st.'iting in the sub-
mission in the alternative what the arbitrators
were to direct— either that det'eudants should
deliver up the premises, or that :i lease should
be executed, eirbodying certain stipulations in
the submissioii set forth. T'hey awarded that
a lease should be executed, and that, should
it be deemed necessary for the mutual benelit
of the paities that during the term certain
work shouhl be done, defendants should pay
one-fifth of the exntiise thereof : — Held, that the
arbitrators exceeded their power in ordering
defendants to pay, &c ; they should, according
to the submission, have ilircctcd a lease to be
executed, containing such a stiiml.itioii. Aljboft
V. Sk-ininr, 1 1 C. P. 30-J
Under a special reference of disputes between
the Northern K. \V. (.'o. and the town of Barrie
as to the construction of a braiu h line iiit^i the
town; it was— Held, that the directions as to
the conveyance of certain lands by the company,
131
ARBITRATION AND AWARD.
ami ;i itlcittii; III' tilt ir cliiiius as to otlicr laiul,
were autliorizc.l, ami tliu latter not olijectionable
fur (jiiiittiiitr tip state tn wliuiii it was to be laaile;
and tiiat, as to tlie aiiiuuiit awanlcil, if, as eoii-
teiuleil, the eorporation eouUl elaiiii no ilaniayca
beyond what tliey li.id expeiuled in procuring
the land, &c., it should be assumed i;o more was
given. Jii I'l' <'i)i'iiiiriilhiii «/" /di/vi nf lln rr'if iniil
Xurthn-u l{. W. Ca.-J'JQ. 1$. '.T).
Held, on a reference of disputes rcsijecting the
title to certain land, that the arbitrators were
not authorized to make a bargain between the
f)arties as to the terms on which the land should
)e soM by one to the cUier ; and even if they
were, they had no right to direct th it a portion
of the money which was to l)e paid to defendant
for it, should be appropriated to his wife without
iiis consent. Uoial v. Bond, lij('. 1'. (il3.
Defendant sold land to one L, and took a
mortgage for part of the purchase, money, L.
conveyed to th.e plaintitr, subject to this mort-
gage. Defendant still owned tlie adjoining land,
and disiiutes as to the Ixiundary having arisen,
the plaintiir brought trespass, wliieh, with all
matters in diU'crenco, was referred. The arbi-
trator awarded for the i)laintitl', and directed that
the defendant should discharge tliis mortgage : —
Held, beyoiul his ar.tiiority, the mortgage nn*
being mentiom'd i;j^- ■ !c:\:^:*ifc , ..■*'l llie award
V- ■>*».. <^iae. Sl'innl v. Ihuirii, •_> I'. H. loS.
— I'. ( ' " L'lurns.
An action against a r.\ii>''v company fi^r pen-
ning back water, and tlius preventing tlie use of
plaintiff's mills liaving been re. erred, the arbitra-
tors aw:iriiril t'.'17'> daniai'.'s : Held, that it
could Mot 111' assunieil from the fact tliat the
annual rental of tiie plaintiil's mills \Nas only
i.''_'50, that till' damages had been gi\en for more
than si.x montiis before tiie suit. 'Ilm v. Grund
I'nuik It II'. <■•>., •_' I'. |{. :t77. I'. ('. Burns.
Where tiu' < lowu l.amU L'tp.41 iiiieut, in dccid-
iiik! to allow one of tvio .ijiplicants to ]iurch:ise
land, directed that tiie amount properly payable
by him to the other :>liould !»' ascertained by
arbitration ; and the arbitnitoni found a certain
sum due, but directed, in the event of the payee
failing to di-hvcr up pojscs.iion to the other in
two month--, that *-H)0 should bi' dc'ducted from
this amount : -Held, beyond lluii' authority;
theii duty being simply to find the amount
jiayable. JiariH^y. lioo,,. ,•, 10 Chy. ri32.
Oilur r,(>r,.. ] Where a tul.mission recited
that A. agreed to L'i'^e up his stock in trade to
15., and to assign him all claims and debts due
ui resjjcet thereof, on payment of such sums as
arbitrators should decree ; .and they awarded
that B. should pay a certain sum, and assume
the paynicnt ami re-*pon.Hibility of debts due by
A. on account of said J^tock : HeM, tliat the
award was warranted by the submission, /'■ic/v |
v. /,;-7./-, K r. !! \i.t". I
llebt on a sulimis^iiiu bond of all matters in
diH'erence. I'lea, no a«aril. The plaintiH' re- I
plied, settini; out an award oa one ni^'tler, for
the payment by defendant of .i certani Muni to
plaintiir, and a\i'ned that the parties had agreed
to withdraw all but that niattri fimn the arbi-
trator.'', ;ind to settli' the iitlnr matters them-
selves ; but if they iniilil not, tluli to refer them
back to the arliitrators, who, within the time i'or
awarding undi-r the submiiiinti, .iv.- irded on the
: other matters in favour of the plaintiff ; and tlui, i
I set out as a breach the non-payment of tlje monev
, under the aw.irds. On demurrer : — Helil, tliji
! the first award was clearly good : and— ^eniUf
the second was good also, liidii/ v. />riri'ii/„.r
I 2 Q. B. ()5.
I In nroceedings under l(i \"iet. e. 190, to a.^tvr
tain the amount to be paid fur materials f(jr ti,
construction of a roatl, the arbitrators caim ,:
confer u^ion the company a prospective right 1 .
awarding an amount as a compensation for in: t
rials to be taken at a future time, a'dlui,,
Cli'ijhoni, 7 Chy. 8.*].
The arbitrators aw.irded damages for materia!.
taken generally, not for the purpose of the rui.|
only :— Held, ultr.i vires. ///.
I Hehl, under the special circumstances of th'.l
I case, on demurrer on various grounds, that 'h.l
1 declaration and award were good : tiiat the uthtH
I defendant was liable for n<in|)ayinent ot the .•*,")(i
1 though it was a matter in diH'erence between ti.i
plaintiH' S. and defendant M. only .SVoj.^.,,, ■,
.Murlinilul., 22 Q. B. lo4.
I When a case has been referred after iiiti;;! I
j cutory judgment signed, and all matters arc. »ii
j mitteil to the arijitrator, he is not compelloil i.-,
I such judgment to award for the plaintitl'. /'v.
IV. Jnn-U, I 1'. H. 81. P. C McLean.
i
j Award on a submission of ditl'ereiices in twj
I suits, set aside for excess of authority in i\\\m.
i ing payment by certain lessees to W. oi ut:|
j sum whatever, there being no claim by h.
I against them embraced in either of th(^ :u.tii,
referred. Ii> r. \\'l,<,l.r v. Muri.hii, 2 I'. I;,;;
I 1'. C. McLean.
j ( '. hail sued B. on a contrart by which he ario
' to build for B. a dam, B. to tiiid certain iiial'l
rials. On a refert'iu'e of all dill'erences relat:t.l
to this contract : Held, that the aibitiatcfll
might consider claiiiis by B. ag.'iinat V. iw'nwM
. out of the contr.ict ; but that .a dirtvtioii tu inil
money to K., a ^itringer to the reference, cualil
not be upheld. In ;v < 'niii/il'tll v. /(/..
P. R. 2'tl. P. ('. Rich.irds.
The suliiiiiatiiou refened the caUiie aii<l
matters in ditlcrence to .A., f. , and (1,. m atti
two of them. < '. and <;. made an award lol
ing the verdii.t taken, and directed tli.u titl
plaintitl mi icijuest should i xecnte a bouil lail
certain jicnalt;! conditioneil to imleinnify ikiiti
ant against two suits specilied : -Held, tlmt ii.t|
award of indemnity wa.i authorized. /
A iidtnon v. Cotton , 2 P. H. 1 ()». P. C. - - Hajailv j
A. leased a right of way oxer a railway, irisl
B., at a rental to Ije lUtermined by arbitral R.l
and covenanted to run " at least one train |rf|
day, with leave to run nmre, the maxiniiiiiiiiatr
ber of trains to be fixed by saitl arbitrator-
All award fi.xing a rental for en.-<uring fiaii trjufl
a day instead of one : -Meld bad, and hIiIthI
back. Fiiiilti- v. I'or/ lli'/i' l.did-inioiolll'
i:f II. w. ('.... li L. .1. i:i. I'. I., t I1.I1J
Hagarty .
Hehl, that under the eircuui.-..tani.ta ui t
case the arbitrator was justilied in allowin. •
set-ott the judgment of defenilaiit a^alu-i ;
pinintitraiid another, a-, awainst any claim '.ti.
plaintitl had again-jt defendant. Lidta v.
hndiif, 7 L. .1, 207. -P. C. Jiichards.
Wlioro a refereii
f.iiiJHred lip to .'ll,--
bwinl went far beyt
IM
ARBITRATION AND AWARD.
134
_ rjiiin a refprence of all matters in tUnVrcnre
lb?Hvceii the yiartiea : Held, tliat an awanl di-
Ireiting the delivery of a certain iironiissory note
Iw, under the H|)ecial eircninstanceM, not an
|(X,e.-.iof antliority. I.iiikI \\ SmUli, IOC I'. WX
Wlicre a reCcrcnce was speeilic, of aiiniints
l(,iiilereil lip to .'Ust Derenilicr, IStil, and the
Lvinl went far lieyond tlii:<, the eourt, u|)on the
|i|ilir,itioii of th(! iier.siiii aji,'ainKt whom the
yw.iiil was made, denyin;; any liindinj; authority
tlni^ extend the refereiue, and his oath lieing
hnnn^wcred, set aside the award. In v h'oln rt,s
,:„//,mW/»m-, -Jl,. .1. N.S. II. P.C. Hagarty.
.,,also, Slur,,,-/ V. ir./K/rc, -20 (». R. Kl't. !
In an .ution on an award it ajipeared that the I
iiiitiH' in A]iril ^ive in a stiitcmtnt nf his
kiviii) with intcre.'st up to that time, at twelve i
► I'lit., tiie usual rate allowed in the ilealings
k,!«Ytn tlie parties. Time was allowed defen- |
jiiit til prove his defence; and in making i
iriiuaril on the (ith of Oetolier, the arhitrators
1 ■! interest at the same rate up to the h;t of I
|i|il' I'lli' r, on the raiin elnimed in Aiiril fur prin-
1 ,md iiitere.-t : Meld, that lliey had ]iower
i.il(.|lns, and 1o award interest on tli'' amount
i,tili>.iid. S/,ir<,rf\: ll'.'.^/. c, 'J0(,». H. HiO.
I.. it'L'iivtrcd a jmlgment ai^a'M.it, M. and ('.,
«ii ;i note made liy them. One .1. was also said j
have l)een interested with tlieni, and lialile [
rtlicdeht it rcjircsented, though not actually
1 ]i,irly to it. It was also said that he was in
' 'd -i p.irtner with (J. in the tran.saetion. M.
ill- large payment.' ,i i he jmlgment ImtC
Kl'l l\iitliin''. I'pr. it T.;fereiict; nf certain
cr^ in dispute bctv.ct.a .1. and M., it was
Bt t'l til" arliitrator.s, amongst other things, to |
jetrniiiit w III ther or not M. or .'., or whii h of i
Km, «a, lialile, or to what extent, in re:>pcct ■
Ith' ju'lginent or the promissory note w hereon i
' jii'lgment was recovered, and to make any !
|fi> wlif- h the arbitrators .shoulil think proper
I ,«ettlc the li.aliilities of the said parties in
fspfct thereof. The arliitrators awarded that
liftween him and M., w,as liable to pay all ,
, talaiice fif moneys still unpaid upon the
(kiiunt, and that .1. slioiiM sliould jiay and
Itisiv till' same within one calendar nmntli, and
iwilil cruise the K;»id judgment ami writs of
.tciiitimi to be sati.stied and ilischnrged, and
lisfaotioii t(i be entered (in the roll of the said
pk'UKiit ; Held, that the latter part of the
Infl (that which was olijected to) was not an
< iif arliitratorK authority, /ii n Mrl^mu
t./ , i I,. .). N. S. -JOG.- 1'. f. .A. Wilson.
llU aurrcnieiit between the plaintitVs and de-
111!, Ihc plaiiilids agreed to draw and deliver
tun liij^'s im the ice for deftiiilant, on or be-
I tlu''.'Ol!i of .March then ne.xt, for which the
[inilantH covenantcil to pay no much per log.
m\^ ;iniviiled that, should the (deighing not
1 ^•iml tor fiiur weeks thereafter, the plaintitt's
111! lie hiiuiid only to draw such proriortion i
he lugs iiM the time of sleighing should bear
lio I'liiir wcekK. liy a Kiibinission under seal,
titiii'.' tills agreement and that dirterences ex-
lliircspc't tlieia of, ani' if the advances made
In III liy ilefeiidaiit to nlaintillH, all such ditfer-
ps wiTi' ret'erred t arliitration The arbitra-
lawanlcd tiiat there was due from defendant
jilaiiitills, in resj^ifct of said agreement, ?S(!(i. \
■iiia.tinii on t : s award, defohitanta pleaded
^'"ai'l ; and one of the urbitratois, as a wit-
nens for the defence, said the evidence satislied
them that, o.^ing tn the ,aiow, the plaintifl's
could nut |iroiced with the uurk and so notified
the dcfcrnlaMt, wliii told tliem to go on and they
.'iliiiuld lii.M' nothing; and tliat mi this under-
standing the arliitratiiis piurccdcd, iiid awarded
til the pl.iiiitills the costs of drawing the logs,
thinking tliey h 111 a right to do so under the la.'it
diiuse of till- agreement. No objei tioil wai
made by defciid.illt or Ills counsel to tllO rece]i-
tioii of the evidenee of such loidertaking, or that
it was a matter not covered by the reference : -
Held, tli.it the arliil r.itors had exceeded their
jurisdiction in awanlio;; Mioiiey to the plaintiff
for work done undcf I lie verbal .lu'rccmcnt, which
was not within the ladiiMi. -ion ; tli.it tin. ■.amount
not being sepirible from the rc;-.t, the award
could not be Mipportdl : and that such exces.'^ of
aiithoiii V .iHorili d a eood defence to the action.
■/V//// v.'r/„ni,l;rl'iii>, ;!1 <,». K, "J!*!).
Where ,i submission was m.ide toan arbitrator
" to determine which of the ■xi'\i\ sever.d itenii
iif I'laiin the est. ite of Mrs. II. is liound as matter
of law to Jiay :" Held, th.lt this contined tlic
autliorily to de. idiii',' the' ipiestion of legal lia-
bility, and did not aiithnrii'.e the .arliitrator to tiinl
sums pay.ibic, .[nii.-li-'iii'j v. ''ni/li;!, '.' •'hy.
• 'iKunb. I-JS, !(;;{. Mmv.U. \ .inKoiighnet.
f-e' 1 , ."i, II. I 'JO.
(k) <■;■'<.
Wh'-ie the costs of tin cause, reference and
aw.iid Were to abide the event of the cause, and
the arbitrator.; asse.-ist d the coats of itrawing up
the aw.iid ,ind tie ir fees ,'it a certain rami :
Held, til it merely as-iessing the amount was no
ground for .-etting aside the award, /io///' v.
s-iessing I
^ ^ .iside the ., . ,
//'///i/./i ,■,//.., I ]'.]{. 187. I'. ('. .McLean'.
Where the co.sts of the cause and reference
w( re to abide the event, and the ,iward Hxed the
costs of the reference and award : Held award
hail as to tliat ]iarl. ./.•(/■ i v. I,''ii/, I I'. II "JIT.
r. ('. Itiinis.
Held, in an .;i lnti'.ilion bctwrtn cliool trn,^-
tecs and teaeln r, that the arliitratora exceeded
their )iowers in awarding costs. Vinifhinti v.
Hull, \\)<). I'.. {V:,X
l>\ a submission tlic costs of I lie "relcrenco
and award " were to be in the discretion of the
arbitrators, and they directed th.at defendant.^
should pay tlie costs of the "sulimissioii and
aw.'iid" :" Held, that the award w.as linal,
for that the costs of the submission included
the co-its of reference. The submission and
award biing set out in full in the declaration,
(puerc, whether this objection could be raised
by plea, or whether defendant should not have"
deniurrcd. Kl'iruml \. 'I' III ('iniii'riiHiiii i;/" lln
Cuiiiity III' Mii/illiHi.i, \'M). II. io.
.\t nisi prius, in an action for niilii|uidatcd
damages, a verdict was taken for tf.'ilK), subject
to a reference, with power to the referee to cer-
tify for costs as a judge at nisi jirin.s. The
referee reduced the dam.iges to .'r^.'W. ")(), and iiindo
his award without certifying; Held, that ho
had no power to certify afterwards : (^mere,
w hetlier lie had power to certify for the costs of
the coniitv or internu'diate court. Smith v.
/'//•'".-, 8 i,. J. 7'J. ('. ].. Chamli. -Hrapcr,
!f
t;ii
135
ARBITRATION AND AWARD.
i
I
Held— 1. That a certificate for full costs,
signeil by arbitrators after they had made their
award, and had finally separateil, and when not
all together, could not entitle plaintiff to full
costs of suit. 2. That the words "costs of
suit," as used in an award, have no reference to
any particular scale of taxation, and so cannot
per se entitle plaintiff to full costs. 3. That
after entry of judgment by plaintiff it is too late
to move to refer back to enable an arbitrator to
certify for costs. K'fp\. fiiniimniuf, L. .1. 1.57.
— ('. L. C'hanilt. Draper.
A cause was referred at nisi prius, and a
verdict taken .subject to the award. Costs of
the cause were to abide the event, and the arbi-
trators had power to certify for costs as the
judge at tho trial could have done. The award
redneed the verdict to .St>8, and directed that the
defendant .should pay the plaintiff's costs accord-
iug to the si'ale to bo certitieil by the Court of
Q. B. : - Held, tliat the arbitrators having express
jiow':rR to certify, and having oniitteil to do so,
a judge in Chambers could not order full costs.
C('t/drr V. (lilhrr/, :< P. n. 127. C L. Chamb.
—Wilson.
See JvrUnn v. Amhlev, 8 I/. .1. N. S. 67, p. 185.
Sue I.K. p. 182.
(I) Al/<riii'j Aic'int.
.\\\ arbitr.itiir's autliority ceases after he has
exf'i'uted an aw.inl, and he has no power to alter
or amend such aw.inl. /A/y)i v. Rohlin, dC.
V. .52.
Action against a municip.il corpor.^i,',)n upon
an award in favour of the plaintiff" for If nd taken
from him for a road. It appeared that the plain-
tiff named one arbitrator, H., and the reeve an-
other, S. ; and they being unable to agree upon
a third, the county judge apjiointed one B. B.
and H. on the .30th .lune signed the award sued
on, giving £40 to the plaintiff. Afterwards the
council called .inothcr meeting of the arbitrators,
when all three attended, and B. and .S. after-
wards executed anotlicr instrument as their
award, by which the jilaintift' w.is to have only
£3 10s. :-H(!ld, that the first award was good,
and the plaintiff entitled to recover upon it : that
under tho Hi Viet. e. 181, s. .'W, it w.assutliciently
published when it was signed by the arbitrators :
that defendants having ajipointed .an arbitrator,
it was unnecessary to prove any by-law for
(ipnning the road ; that an .iction was clearly
maintainable upon sueli an award ; and that it
•\\i\R no objection to the declaration tliat it was
upon a suliuiissioii to tlirec ar))itraior8 while two
only executed tht^ auard, for tho statute autlior-
ize.s two to act. /l(ir/ii/\. Thf Miiiiirijui/ili/ (if
/III Tiiinishij, III' /'(jrl>iiiiil, 17 (»>. B. 4."),5.
Held, under the facta of this case, that arbi-
tr.ators acting under ti>e Sc hool Ait, hail no imwer
to resume roiisideration of the matter, and issue
a warrant to lew, after having nnec made the
award. V<iuliiii<„ v. Hull, 11) (^. B. (i.Tl.
.ArbitratorH under the School Act exwmtetl an
award, tho description of the lot not being fully
inserted, but a blank buing left therefor, which
was afterwards filled in, and the word "lot,"
.altered into "gore ;" -Held, that the award was
b.ad. Jfi/liiiiil \. Kiinj, 12 c. r. \m.
The arbitrators having discovered a mistake
in the amount awarded, destroyed their award
and executed another,
award aside. Boimii
C. — .Jones.
The court .=;et the :;eLon'i
■. Lore, 1 Q. B. 398. ^r
.1. Ft> ^ iiiiil Ji' iiiiaii rri/iitii.
(.See 29 Vict. c. 32.]
The School Act, C. S. U. C, c. 04, does n"
provide foi- the p.iyment of arbitrators, or of th
costs of a reference thereunder. fVntivrv. HhI'
10 C. P. 3(50.
Arbitrators' fees m.iy be referred to the nii.;ter|
for taxation. Sroft v. Grand Trinik R. 11'. (
3 P. R. 27 fJ. -C. L. Chamb.— Richards.
Whether n.amed in award or not. /,"'(/;,
Russell, I P. R. 6.5. -P. C. -McLean.
Where the Master refused to tax an ail.itn I
tor's fee upon proof only that a note had lie's I
given to the arbitrator for the amount, a juili;e|
in chambers refused to interfere '/''//•'•■"
ir«rf/, 8 L. J. 21.— C. L. Ch.amb.— Drai)er.
Arbitrivtors h.ave no power to fix the aiiK^mtl
of their own fees. McCiil'och v. ]Vfiiti\ ;t3 Q B I
331. See also B«i//<' v. Ifnmphni/, 1 P. R. i^;[
—P. C— McLean.
A County Court judge, on a reference to iiml
under sec. 138 of the C. L. P. Act, is not entitkil
to any fees as arbitrator. On a reference to jiiel
at the trial under sec. 160, merely addiii" to tJ
n.ame the designation of ( 'ounty Court juai;e, huT
not referring the matter to him as such judge, li(|
will bo entitled to his fee.s. Wnotl v. /■'(x^c, (ipf
R., not yet reported. —C. L Chamb. — (ialt.
V. UMriRF OR Third AnniTHATor,
After the arbitrators .and umpire Irul liciril
the plaintiff's witnesses, the defendants rctn!«|
to give their evidence, and thei r arbitrator \ '■nil
not concur in the award. The umpire, in c^tl
sequence, gave notice to defendants to prodiitl
their witnesses, but the time which he gave tml
too short, and he awarded on tho cviikneil
■already he.ard. The court set the awai-il ,x«i4|
Proud/oot V. Ti-olto; (' O. S. 1(1.1
Where arbitrators dit'grce on some itciiw, aw|
ca'! in .an umpire to give his opinion tlurKl
and adopt it as their own, he nei'd not sliintJ
a\.ard. In iv Cui/li ;/ mid MrMallni, ,'{(,•. li l:'l|
— P. ('.--Hagerman.
( Construction of submission lioiid, as tn « li. •
the umpire therein named liad the ]io\m r-m
ti- report npfili the state if certain pniiii.-i
further than this, to estir.i.ite their \.iliii j
make an award thereupon, .\li-<!ill \. I'l"
fool, 4 11 B. 40.
Api)ointment of um[tire need not U in wriiinJ
if the reference does not in terms rei|\iiii
Rni/ V. Jiiinind, 1 C. L. < 'h.imb. 27, I' '
Macaulay.
An award of umiiini^-v is valid, tlien^li mi*1J
before the time limited for the awii.lnlllf
arbitrators, if they disagree and do ri .t iiiak'
award afterwards, /h.
Unilcr a submission by four )iei.-<oM> t !
arbitrators, "and should they not a^-rn,
choose an umiiire ;" Held, th.at tli'i uiui*
should have been appointed by the paitii.-,
by the arbitrators. U'Dotajhcrty v. l-'riUni\\
U. 11, 65.
AKBITRATION AND AWARD.
138
A submission was to K. and M., and such
[person as they should appoint. The affidavits
I were contradictory as to the fact of a verbal ap-
Inmntment of C, and there was no appointment
I in writing proved ; hut it was sworn that he was
lohosen hy defendant, as one of two proposed l»y
Iplaintiff, and that he sat with the others and
Ivnted in defendant's presence without objection.
Ilhe court refused to interfere against an award
IbvK. &f'- 0.<ihornfv. Wrhjht, 1'2 Q. B. (i.').
Where a rase is referred to the award of two
■persons, and in case of disagreement to the
Ideoision of a third, either as an umpire or
is 1 thiril arbitrator, the ])artie.s have the right
.1 insist that such third person shall have before
iim the evidence and witnesses produced before
the two arbitrators, as well as the right to ap-
ifar and state their case to such third arbitrator
|pr umpire, before a binding award can he made.
[/„ ,v Sniilf.'i v. .1A))V,)», 4 r. R. 210. - I', r. -
Wln-re unde.' a Kul>niission it was proviiled
fcat arbitrators should appoint an umpire in case
ilisagreement, their appointing such an um-
Jiire was held, on motion to make the award a
ale nf court, sufficient evidence of their having
iis.igrt*ed, without any allegation of that fact on
affidavit. Whilt: v. A'/(%, 2 ( 'hy. Chanib. 452.
-Taylor, Secrctnnj.
The reference was to two arbitrators, with
»wer for them to appoint an umpire, who was
make an award if the two disagreed ; an
npirew.is accordingly appointed ; and, flicarbi-
Mtnrs (litl'eriug, tiie umpire made an award : —
hel'i, th it each party was entitled to the free
liilgnient of the two arbitrators on the matters
liH'ereiice, as a condition precedent to the
Bipirc's authority coming into force, as well us
|kf-ir free judgment in the appointment of the
iipirc J and that one of the arbitrators holding
rivate conferences with one of the parties was
"cient to avoid the award of the umpii-e. In
Inimtn v. Ifiitr/iiii.ton, 1!) ('hy. 84. See
!>,/./;/ V. /...v^c, 14 Q. a 259.
Where arliilrators disagree in some items, and
■rinv the investigation call in an umpire to
his opinion thereon, and adoi)t it as their
Itn, he need not sign tiie award. /» ir f Vr»//> y
'}lrMiil/,t,, a Q. B. 124.- r. C. Hagcrman'.
\'l. .V\v.viti>.
1. /'illl' ItJ Illllh'ilHI.
jiiiliiiii.Hsinn iiy bond. On the day limited the
litrators were prcp.ircd to award, but .ill
ttii's iK'licving the time would not expire until
Jt ilav. di'foirc(l the ]iublication tlicn at
jfniiiaiit's ni|uest, and heard further cviilcnce
' l"itii sides lu'Xt day, and tlicn nuide tluir
8n! IMil, that tlii' extension of time w.ts
jMpil s^bnlis^ion, and tliat assumii.sit was
liitaiiiaiilc th.-eou for ' i, performing the
iril, altlioiij;ii no action world lie on the bon«l.
JI'v. Ahvtuj, 4 0. S. 375.
1 aprcruu'ut eidarging the time need notcon-
a oin.scnt that it may l)c mad(( a rule of
jrt, as Well .-vH the submission. ( 'luinks v. ( 'li'ix-
?'. 4 0. S, 121.
Miiri the subuiission is, that tiie ;iHard shall
liWivia'il l)y a I'crtaiu day, if it lie ready for
delivery by that day, it is sutticient. (jalhralth
V. Woilrr, E. T. 2 Vict.
Where a verdict was taken subject to a refer-
ence, and before the time limited for the award
expired it was enlarged by rule, and afterwards
by consent again enlarged :— Held, that the award
was good under the last submission, although it
would have been invalid if made under the rule,
and the enlargement by consent might have been
made a rule of court, as being part of the origi-
nal reference. C'hnrle-i v. ffiiTsnn, T. T. ,1 &, 4
Vict.
The enlargement must be made a rule of court
as well as the original submission. Mnxrcnr v.
Chnmhn-x, 4 Q. B. 171.
Though no power has been given Iw the refer-
ence, the court, notwithstaniling, under 7 Will.
I\'. c. ,S, s. 20, have power to enlarge in their
discretion. Joiu-s v Rnoa^ll. ."> O R .•JO.?.
A rule issued an of Easter Term generally, to
enlarge until the last day of the tenn :- Held,
to relate back to the first day of term, and to
iperate as an admission that the time had not
i ,; 1 ij. ;.. .. #4.. ~ r\ Ti ..n..
Hnwb v. Diigi/an, 5 Q. B. (),3(>.
then expired.
Where the rule of reference and an enlarge-
ment were m.ide rules of court, the court refused
to attach for non-performance of the award, as
the enlargement was not shewn to have been
assented to l)y both parties. liutlirni v. /{ii/h
r,',,, 5 Q. B. 273.
A rule making an enlargement ordered iiy the
arbitrators, a rule of court was set aside, ,vw/,7i
enlargement not having been consented to by
both parties ; luit the award was upheld, the
parties having verlally assented to enlargement.
Kiilln-ni V. L'lillim,, 5'Q. B. 27li.
.\n award m.iy be made before the time to
which the arbitrators have enlarged. Tniti-ij
V. IIu.hj<-it, 7 Q. B. 5. -p. C. -Draper.
After expiration of the time limited, arbitra-
tors cannot, without (even if they can with)
the concurrence of both parties to the submis-
sion, make a binding awanl. Riithn u v. liuth-
vrtt, 8 Q. B. 12.
lU.claration, lirst count, that dcfcnilant, by
bond, agreed that one (.'. should abid(> )iy an
awanl respecting ditl'ercnces between ('. ana the
plaintiff, if m.ade lieforc the (Jth of .liine : that
the arbitrators, with the consent of ('., of the
defendant, and of the plaintitl', enlarged the
time to the 1st of .hily, ami m.adc their award
on the 12th of .Tune, alleging non-i>erfornianco
of sucii award. Second count. -That defendant
rei|uestcd plaintiH' to extenil the time, and plain-
'i(V, on such rcqueHt, and in consideration that
tlic defendant promised him to continue bound,
anil that ( '. or the defendant would perfonn the
award, agreed, for tlu; coiivenicnceof said defen-
dant ai:d ('., that, the time should be extended ;
setting out the !'...ai(i, 'cc, as in the lirst count :
Ilclil, on den iirrer, both counts bail, as shew
ing no valid enlargement ."SijIoh v. Woo'l", 15
Q. B. 585.
Held, that a verbal consent to an ciilargemcnt
of the time for making an award is Hiitlicicnt
miller*'. \.. V. Act, s. 171. Joxtx v. I'l-iiilifc,'!
L. J. N. S. 205. !'. ('. A. Wilson.
The declaration for iioii I'crformancc of an
award set out in full a deed of submifrsion to
■\
13!)
AKIUTRATION AND AWARD.
II
m
1 ; r
arbitration In twecii |il.iiiilitr .iml (Icfciiilant,
which doiil imiviilril tli.it tlu' iiwaid .slioiild lie
made on or licl'orc Iho l.st ol •'iily thin iii'\t, or
Mich liirthir tiino as thi' arl)ilrator.< liy uritin;,',
endorsed on Ihr suliinis.sion, iiii;!,dit I'loni tinic to
time appoiiil. It wan then axcircd, tlntiil'tor thi'
arhitrators h:id ciitcriil n)ion the nfcunci', the
jilaiiitill' .iiid di iViidaut, l>y writing' under their
lianch!, enlarged the time tor making' the award
to the \»t of Deeemliri-, and tlie award was
made on the ,"Olh of NoMinlier. Kourth jdea:
that the eid.irgeimnt nirntioned \\ is not innh: till
after the 1st of Inlv, and when the arlii-
tratois' antliority hail leased. |{e|ilieation, set-
ting out tlie endorsement enlarj^iiij; the referenee,
and averring,' iliat lli'' pai lii's, with a fnll Iniow-
lodge of till' fai'ts, ii|i|peared i nlisi i|iientl,\ liefoie
the arhitrators, and |iroeeeiU'd w itlmiit olijeetion
to the enlargement, and afterwards the aw.ird
v.?" mnde as in tlo' diilaralion mentioned:
Hchl, )i])on demnnir, r"S'!,iit 'h" aetion, if
founded niinn lli<' dud, must fail, the enlarge
ment not henig in ai eordanee witli the deed ;
Imt, '.'. 'I'hat setting out tliedeid in (hedeelara
tioii did not neeessarily maki it the hasi.^ of the
aetiiin, for it might lie (leafi'd as indueement ;
and the deed and tlo' riiiinn^lanres follow ingil,
read together, ;;liewed a \,ilid award on a |parol
rmbniission by the (lartii.., ami atf'oided a good
cause of action. The diilaration w,is tln'nfore
held good, .i.'i re.Mrded the eiilargiiiient, and the
frmrtli phabad: Meld, al.'i, th.itthe re|ilieation
was not a dejiaifiii'' ; but that iis the di'elar.ition
fihewed a le w snbnii-i-ion by the parlie , the faits
in the leplieation as to the atteinlaiue of the
partii ' after the rnlargrnieiit were immateri,Tl,
and tht rcfiliiation thrirfove bel. M,Citll,-,h v.
Whu>, 'SMI B. ;;;!i.
An arbitrator ha\ ing f.iiled, ov.in.; to tie' lof.i
of the papers in the eau"e, to niaKi' hi/, award
within the tiuii' limited, a .jiidf'.^ extended the
time under*'. I.. \\ Aet, e. i'J, :.. Ml. .Itilmlw
\\ Aiiij/tii, .■> 1'. i;. li'J. < 'h.inib. .\|orri.>:iin.
\Vhere tin time for making ,ui .lUMrd under :i
PubmisMon made an ord( r of i mirt has exjiired,
and the parties afterwaids nieel, by eon.sent,
.siieh meetings operate as .i mere jiarol siibii.io
F.ion, whiel) is rcvoealjle ; and if revoked, the
the time for making an award cannot afterwards
be enlarged by the court; and the party revoking
will not be restrained from merely jnosecutiiig
the suit from the point at which it was arrested
by the referenee Hitlhrin v. Rumui, SC'hy. UTO.
On applying, for an order to enlarge thu time,
fheorigin.il submission should be prodm'ed, or
if in the custody of the opposite p.irty, it inil.st
lie shewn that he refuses to give it u|) ; it is not
sullicii'Ut that the party apiilying swears merely
that ho < aniiot jirociire it. ./(iJiiii w Far'.', I
Chy. t'hamb. •JGO. - N'anlvouglinet.
■_'. Wli'i f^lioiilil ilniii' nil.
It is not desiralile that the .attorney of eitlur
party should draw ii|i the a\\.'ud. .Mtmli 7 v. An-
da-sun, '2 I', It. ;!."il. I'. < '. Kieiiard.s. '
15. Fiiriii !•'.
All matt ^ ill dilbieine Ik tween the plain-
tifl's and dclcn '.iiiL huiie: b(..,n referred, the
, aw.ird w.'is that the defendant .should .stand fii||.,
, .icipi^lteil and diseh.Trged of and from all ;ii, 1,
j matters : Held, certain, final, and cnnelii.~iv.
\ /,'ilini >i lit. v. /'iiiiiriii/, I I'. I!. r.K. P. C
I \lel,eaii.
■An award (hit (lie plaiiitiU's li.i\e no e.m .
jaition ag.iinst del'iiidant : Held, .<aillirii, nl,
, meaning that at the time of submission they li,||
^ no eau.se of action. //».
I'lidcr .1 submission giving no power to ,i,v>.
.1 verdict, the award was, " I am of opininii th '
the defendants are entitled to the Mrdirt in tl|.
c.'vii.se, jind, by the antliority vested in mr ,
arbitrator, conlirin tlii.s opinion, and dei idi' t'
case neeordingly ;" Held, that the awiird ini-r
. be upheld as ,111 iiiformal expression of opihi..;
in favour of defend, iiits, there being no e\pri
I direction to eiitera \erdiet. ('n ii/litnn y. /;,,,„
\'f ill., I I'. 1;. ;i;;i. C. I,. Chaml.; Kiehul .
■\ nietnor.Hidnm in wilting, signed by arl.i I
trators, as inslrie non., 1-. .: : ••b.'itor to drnv
.award : Meld, not to be a binding iiward. .s7m.-|
v. .Mill h ,11, 1:1 ('. IV Jl'.'!.
l>„,
.Url.'ir
1 1 ( ' !•;. I I .',
•I. I\..ii'iilil>;l.
Whire the siibinis.'.ion as to noino nf tl-l
(|ue- tions e.xpres^lv et.ilus tint the majority nuTl
aw.ird, thi.i iio.ver, though not repeated tliroii);li I
out, exli nd. to ;dl mritterr, referred iipwl
which the irliitrators cannot agree, rimi
V. .sini'li.iii. ■( <,t. 15. i:{(;.
.Vrbitrators having r.igned a memoraniliun i
their jud,:^ient at the s.ame time and place, m;:
c.\cciile tjic more formal award se])aratt]y an;
at ditiereiit times, but within the time aiiowt;
William-i \. S.,ii,ilr, 10 (,». H. 'Jt.
Ser.ible that an olijeetion th.it two of (||. n;
trators in.ide the award without iiotiec to trl
tliii'd, cj'.n be taken advantage of in an .iuh
on the award. Sniiih v. (Inwiji , 12 (,». 15. ?,]v
•leld, under tlie lircumataneos of this .
not a fatal olijeetion that the award Iiiul I
signed at ilillerent times, and when the ;ui
tors were not all present together. ./")/'
A',;./, 1 1'. w.-ni. I'. V. r.urns.
Where a Kubniission is to two, and surh tliiRl
person as Ihcy shall choose before piiiiocilw:!
an award by the twd only, the third imt li.ivr.l
acted, is liail. Slmiii v. //alihii, U (,1. \',. m
An award executed by two of three aihitriit'nl
at diircrciit times and places, and after tlio tintl
exiiired, cannot be supported, i/i// ^ v. /I'/.i
tJ C. V. .VJ.
The reference w.as to two, with pu«';
appoint a third, the award to be iii.i.l'
any two. The arbitrators met, ami t«
them determined to award in a p;irti.ii:.l
way. They were afterwards told that it '
out of their jiower so to award ; and they th'^
at a subsei)uent meeting, altered their ili '■
The third arbitrator was not present at tli'
meeting, ;inil it apjieared that he had heeii '
lied of the intention to meet ag.iin, biitiinir
iiotiee had been given to him of the tiiu'
jilace of meeting, nor of the intended aitni
in the iiwanl ;— llcld, that the award iiiii>!
141
lii'tns lo : that b
|arbitn.'orof thai
Itwo ma. ing the ;
Innt eciiisi.'er his
Igiiil then .ore he
|t«i'ii .' .e him to
Ipriity of the proi
|ri ilcDiiiiiilil iiihI
The three arbil
net .iiid distus.si
■■larated, unable
biiijent aa liiial. 1
lor one |>irty wn
jiKiiiiits foiiud 01
oii'iit appear on tl
Ihey might he abk
loui.. stating that
^i.'s ciilkMgue.s as
i;it tile iliiinaiit
Iwaie iif it. r. ai
Jicatioii, and deter
Ifttiee was I'iven te
(lays afterwai
U'tlitrcoiisultiiigli
|., .uid Morriaou,
tlitr tun arhitrato]
nd i>i their intcnti
ff.ird. Per Drap
loiiiiil to do ao, for
nd finally umlerstn
pe letter disclosed
le award was there
fraper, ( '. J., dis.s.
tl'iUl (if Tm-untii (,
lllii.l, under the e
, tiiat tile notic
tiiiuttiiig to niak
but. Aiiiln-s III V
llkifart)-.
Il'iiiler a suhmiasioi
any two, where
jough to he exeeu)
Wilted by two only
[all three fur sett
til to the one who
jfs .ifter ; -HeM, ii
R.370, -P. C.
IWhere an award
llitiators, and afte
Ited, ami the other
In- letter, pub
t'd upon, it was
Id havj met for
deuce in such a cas
|di9seiitinc arbitr;
ilind. ,/,f„//v, 11
Ml ^cardfuracert.!
i-e entered fnr th
11 filed f,,r the
. T. r. m, \
riifieaii award fix
-i'l'i't' "•" it, is III
t. II III/, I, y, II
hlKieiices having
"fj I'll the nlaintiff'L
Nikli clefeiulant h
Sti I tci p,iy plainti
ui
ARBITRATION AND AWARD.
U3
lict ai> I'i • lliiit 'jy **'-'"'^'"*3 uotiie to tlie thirl
larbitn.'^or of their intention to meet again, tin;
Ilwii ma. iiiK the award had ahe«n that they did
|ni>[ iiiiisi.'er ids ilechiration of dissent as liiial,
laiiil then inre he shouUl liave liad pr(>i)er notiee
lt() til ■'•>■' ''•'" ^" eonfer witli tlieni on tlie ]iro-
Diiity of the proposed ehanye in the award. ///
Ir, ,\[i-Doiiiilil (iik/ I'nsiinl, l(!C,>. IJ. 8-1.
I'lie three arbitrator.-!, ("., I)., and .M., having
ct and diseiissed all the matters referred,
tiiaiated, unable to agree, -M. expressing his
lissent as linal. On the ne.xt day the attorney
(or one pirty wrote to D., ro(juesting that the
niiiuiits fiAiid on the dift'ereiit heads of elaini
ni'lit appear on the face of the award, so that
hev' nii"ht l)e able to obtain the opinion of t!ie
mt- stilting that tlie letter was intended fur
colleagues as well as himself, and desiring
hut the il.iiinant's attorney slioiild be made
Ivtaie of it. f. and D. considered this cominu-
licatioii, and determined to disregard it, but no
If,*;, I' was I'iven to M., and an :iwiii) ''•■,.. ,.,o.I,.
, ,l:iv8 afterwards by (". and I)., without
mtliiii^'oiisulting him in any way. I'er llagarty,
.Liid .Morrison, J. — It was the duty of the
jiir two arbitrators to notify M. of th's letter,
nd (ii their intention to settle and execute the
»-,iril. IVr Draper, C. .1, — 'I'hey were not
loiiiiil to do so, for their dis.agreement was fully
nd filially understood when they separated, and
lie letter disclosed no new facts or evidence,
he .ward was therefore set aside on this ground,
Irape
I., diss. In ri' Tin' <'<ti'/)()ritliiiii nf
iper, I . •!•. oiss. In n- i in' foi'/jontiin
|IKM, uiicUr the ciivuuiritaiii'es stated in this
, tli.1t till' notice to the third arbitrator of
up the aw.inl v.as sntli-
.//«;/, •.' I'. I!. lOii. r. ('.
! iiactiiig to make
jliit. .1/"/' ''■< "' V. (
|.ll,iL;art\-.
IViiilcr a submission to three, tlu'aw.ird to be
imy two, where the ..ward was drawn up as
1U2I1 to be executeil bv the three, I ml was
iiteJ by two only, and no final meeting had
all three fur settling the same, m.r notice
11 tu the one who did not sign it, until some
8 after : -Held, invalid. AJuirtiiiw Kn'iiuii,
R. 370. ~P. C— Burmi.
ft'lare an award waj agreeil upon bttwetn
(itiatuic-, and afterwards one of them dis-
jlteil, and the others, after discus'iinn; his new
ijy letter, published tho award as firat
.1 upon, it was set asiile, because they
M liavj met for the discussion : a corres-
iilii ',■ ill such a case being msutiicieut, though
i-Miitnic arbitrator did not object tr. that
*i:^,l J.f;lll:-. W,,,!,, 8 f'hy. SU.').
f). Cunilriirtii 11 vt'.
Ill ' ;ml for a certain sum, and that a \eidiit
i i I. iiiteredfcr the said sum, naming a large
i'.iuil fi,r the smaller one. < fmrh- v.
['. r. 'MU, Vict. i*. ('. Macaulay.
11 an award lixei! no day for ]iaymeht, a
iiiiij/DU it, ii not, a:! of iiiiht. ei'ititle.l to
list. B.iill.iiv. ||V,y, 4i). H. 'M.
eieiices having arisen aliout deftndaBt'a
on the plaintiff's lainl to embank a :tream
fliicli ilelendaut had a mill, defendant was
fM to pay plaintiff i'lO a year, so long as
he should hold for his own use the premises on
which he had such occasion to go, and which
the plaiiitill' was directed to convey to him: —
Held that the payment was to be every year, as
long as ilefendant's interest continued, although
he might not have occasion to go on the plain-
tiff's land. Pi</dr V. Pen-ill, 1 Q. K. .'587.
.\n awaril made nndei- Vict. e. .'17, and 10
& 1 1 Vict. !•. 'J4, awarded a certain sum to A.
"for the damage iloiie to his property in the
village of Milles Itoelies, liy the construction of
the (,'ornwall Canal.", .stating no further particu-
lars of damage. .Vllldavits however were liled
to shew that the sum awarded must have been
given, from its amount, for consequential, and
not direct damage. But : -Held, that such
allowance not being stated in jiositivu terms ;
and the award being silent on the subject, as it
miglit be, the court lould not assume the fact to
be so, and upon that ground (if a vali<l one) set
aside the award. i.'tiiiiiiiUiiiimr uf Publli: Workx
v /).'/'/, (I (,). li. ;);!. .Sue aiiu V. Uniml Tnink
11. W. Co., -J i'. 1{. :J77 ; /« rr Town of li<irn<-
and thv Xorthrn It. W. Co., 'J2 Q. B. 'ij.
Tile iiicaning of arbitratorK, when an award is
made, m not ro be gathered from affidavits, or
from any tpther source than the award itself.
Kfip V. t/diitiiimii/, L. .1. l.")7 ; Stnil/i v. Forhen,
S L. .1. 7-'.— C. L. Chamb.- Draper.
Held, under the special terms of the award in
this case, that defendants were bound to pay
III iittlihi for the expense; of a new wheel in a mill,
in the same maiiiier aa for the other repairs : that
the plaiiititi' had tlie right t<j judge of the neces
sity theiefor ; and tl;at in declaring upon the
award it was sufficient to aver that it was deemed
necessary, a. ' that the plaintiff' proceeded to
liut it in, an by the award in- might do. Ahhiilt
V. Skiiiiin; ;!0Q. n. lit. SeeX. C. ~ I.. ,1. l.-)8.
('. ( '. Slacken/if.
.\il award found that on l.t .September, 1800,
defendant was indebted to plaintiff' in i'3249,
and <prdeied him to pay it accordingly, with
interest half-yearly until jmid. Qua-re, ad to
the intention and ell'i 1 t if this direction, .'iteir-
iii-t V. ir./. /« /•, '.!0 (.», I!. W.).
l-'laintitt's deelaied i.n a bjiid, coniiitimied that
W., their treaaurci, should pay over all moneys
received since the It of .luiiua'-y, I8GI), averring
^ that on that day he had in hia hands a large
I sum, and received further sums up to the (jtli of
April, 18(iS, when he was dismissed ; and that
he accounted b^r all moneys received before that
[ day, but not for ;i large sum received since.
I'lea. alleging payment of all moneys since that
day ; and issue thereon. The case being referred,
the arbitrator found that \V. admitted .*-3,031 to
j be due by him on the l:t of January, ISCiU :
! that he had ai.^ountcd for all moneys received
j .since ; and that of all money .s received up to
his disniijaal, includin.L; the .';;!,0;{|, the balancu
i was .*''l,80ti : -Held, that aa the breach was only
in les'pect of nii.iiey .s received luce the 1st of
'.lanuary, 18tiil, the plaintiff up.iii this lindiiig
, eoultl recover uothiuv. I'ln Cui'iiin'ilmn nf lli-/
\ Toirn h'litof Huirilou \. \\a,-il, t>V (}. B. CUU.
I'\nce vienei.; .iwardi d that difeiulaiil lIiouI.!
open a ditch finm the Uiu' fehie lA-tweei) himself
:iiiil ilefeiidaut, thiuUfdi the i.laiiitiff's farm, of
sullieient depth to cairy off the water then in
the diteh opened by defendant, about twenty
■ ;■■ y
1^:
!•;[:
143
ARBITRATION AND AWARD.
)li
■■!
Il 'I
'iil
i'
rods in leiigtii, nnd that tlu; plaintiff jhonldiiKike |
iind kt'ej) ojifu tiii» Hiune portion of ditcli, com- ;
niuncing at the line funce, Ac. ; Hiiid dituli to he
made before tiic Ist Oetolter, ISti'i : Seinhle, tliut
tlie award was not had, as decided in Murray v. j
Dawson, 17 <'• I', MH, for oniittinj,' to specify i
tiiu tiiuf within which eacii party was to perform i
liis share of the work, for tliat the time men- :
ioiied apphc<l to lioth. /imrioii v. Miirrm/, -!• >
g. 15. 4(i4.
Sec VI. ;», p. i;<!i.
(!. Kfrcf of. I
Wiiere arliitrator.s, to whom disputes ari.sinj^
from the overHowinj,' of tliree acres of the idain-
titi's land hy water thrown Imck oy defen-
dant's mill, were referred, awarded damages to
the plaiiitill' for the injury, and that defen-
dants should have a full fall of nine feet, and no
more, for their mill-dam, provided that tiie water '.
on the plaintilF's land was not raised there))y ;
and the defendants raiseil their dam to nine feet,
and overflowed live acres more of tiie plaintiff's
land ; — Held, that the award did not prevent his !
recovery of compensation for sucii further injury.
C'anlef v. Runsuin it iil., 5 O. S. olU.
A plaintiff in ejectment who, before action,
lias submitted tlie (juestion of tlie po.ssession of I
the premises to arbitration, is estopped by an
awilrd in favour of ilefendant. Dm il, (ln/lirnilh I
V. ira//(-/', K, T. '.' ^■ict. j
An award upon a question respecting real j
property, expressly referred, is binding upon the ;
parties, so far as respects tlie rights of either to I
bring or defend an ejectment against the otlicr. ;
JJo,' d. MvDunahl v. Luiuj, 4 Q. H. 14(i. j
An award made pending a cause does not stay
proceedings. If the plaintiff" proceed defendant |
must pleail the awanl puis darrein continuance.
Fklo V. Wuoil, K. T. 2 Vict.
A verdict or award for dam.aues against one of
two joint trespassers, is in itself a bar, whether
paid or not, and has the same effect as a satisfac-
tion by him in precluding any action against his
co-trespasser, liut in pleading an awaril to an
action of debt, in which two are jointly bound,
tiierc, unless payment Ije averred, it is no bai-.
Ailamf v. Ihtiu, Ti y. B. 'il)'.'.
An award made after the time has elapsed,
cannot be taken as evidoice of an account stated.
Ihitlu-tn v. Ifulliaii, 8 Q. B. 1'.'.
Action by indorsee against executors on an
note for §860, made by testator, averring a pro
mise by defendants as executrix and executor to
pay. Plras, 2. That ilefendant did not promise ;
3 and 4. Want of consideration ; 5 and (i. Fraud.
Replication to all the pleas, by way of estoppel :
an aroitratiou and awanl as to the liability of
defendants as executors, &c., to pay the note,
&c., (letting out the terms of the submission and
award). — Held, on demurrer, replication bad,
us the matter of it did not estop defendants as
to the second plea, and because it did not appear
on the face of the submission or of the awaril,
that the plaintiff at the time of the reference,
and of the making of the award, was the holder
of the note. Ckal v. Elliott, I C. P. 252.
Covenant against the executors of a lessor for
not rebuilding after loss bj' tire. The third
plea set up an award as to the damages smigli;
to be recovered between the jilaintiff and (in,
<J. .M., who, it was averred, was assigiiei' of th,
iirennscs under tlic will of the plaintiff's lf»,,|
for a term in the said will mentioned; liiitii|
was not averred that tiie plaintiff had obtiiin-,
satisfaction through tiiis award : Held, i,||{
<lemurrei-, thinl plea bad, as shewing no dt-fi-ii,',
/'r,„i,//uf,l v. Tn.ltri; ]•> if. M. 22li.
In an action a^'ainst the makers of a joint ivy,
several note payalde to I', or bearer, one Avkn |
dant sutVered juilgmcnt l(y default, and thcotii,,
pleaileil, that after the note fell (lue, and uhil,!
it was in K.'s liamis, disputes arose betwcin |; F
and this defcud.aut res[iectiiig it, among iitlnr
nuitters, which weie referred : that the arl-.
trators awarded that ilefendant should iia,]
It. a sum named, and that he and H. nIhh
execute mutual ixdeases ; and that the pliiiiitijl
toidt the note after it fell due, with unijcu.
the facts. .\t tlie trial the submission and awat I
were proved, and that the plaintiff' was presti,;
at the arbitration : that the note was disallnwnl
to K. , because this defendant, being a HtirnJ
only for the other nuiker, had been diseliurkvl
liy giviTig time ; and that the plaintiff thtJ
stated that he had no claim upon the n(jte:-I
Held, that the note Ijcing several, the plc.i Mil
good, though the action was against twe, aii.f
the award related to one only : that it uj,|
unnecessary to aver performance of the awani
and that defendant was entitled to a vertli,'.|
Fuliri'll v. Iljidi' iiiul Coxlur, 20 Q. B. 505.
The linding of an arbitrator, when iiiuiil
peached, is treated as res judicata between
parties to the submission. //(// v. .l/i7A/,
Chy. ;JS5.
An administratrix was sued by her l)iutlii!|
for a debt alleged to have been due by tJ
husbanil, the intestate, and judgment was ril
covered ; subseiiuently a reference was made:!
respect of other moneys come to her haiulji.T
the benelit of her children, and by her deposiirJ
with her brothei', and this judgment and tsf
amount due thereon were, at the arbitratiiil
mixed up w ith ({Uestions as to thcbe trust mouenl
and the award was in respect of all. TlieiM,!
ties all acted as if these trust moneys, and !
debts of the estate, were to be considereil
dealt with together, but the infants were i J
representeil hefore tlio arbitrators: — Held, lu
the infants were not bound by the vnmt
Sioml V. Vo-itillo, 17 t'hy. 32S.
>ie*iO'Dou(ihcrtii \. Fidwdl, II y. li. fell
130; Canijjlj'i'lly.'/Jowtainl, I'J Q. B. \-J,[i\i\
Siillirciit V. Kiim, 24 I.,!. B. Mil, p. IBO.
7. Co'taiiiti/ uiul Finalitij.
(a) Oiiiittiiuj to find on the Instien.
Assumpsit. Pleas, general issue, aiiil xU
A verdict was taken for the plaintiff, suM
to a reference ; ami the arbitrators ana
' ' that at the time of the commencement oi i
action, or at any time afterwards, the pte
had not any c.iuse of action whatever against li
defendant," and directed a verdict for deia|
dant for £20 lOs. Id. :— Held, that both I
issues were sufficiently disposed of. Toirim
V. Morton, 2 Q. B. 100. -P. C— Jones.
14J
ARBITRATION AND AWARD.
UC
Where 11 cause, with Koveral issues joined, is
rcffrn''!. with costs to a))iile tiie event, and the
jrliitnitiirs award a certain sum to the ]daintit)',
mitliiiut saying anything aliout the issues, w)i.ieh
[•re licit iiccessiarily from tlieir nature detern. .ned
tlie award in favour of the phiintiiF, the
ovarii is l>;id. Ili-riiiinlv. Striirliitii,'2(i. B. 123.
Wlioro ill tresp.ass to personal jirojierty, and
Viral plwis pleaded, a verdict was taken, sub-
Jct to a reference, and the award determined
e cause in favour of the plaintitf, and reduced
fViTilict to i"7 lOs., tile court refused to set
Jide the juilyiuciit oil the award, on the ground
ihat the award was void for not disposing of the
lies. Wuud v. Muuilir, 3 Q. B. 71).
Where a cause was referred at nisi prius, under
rule (if reference providing, "that the costs
the said cause shall be disposed of as follows :
.e costs on demurrer to be subject to the judg-
icnt of tiie court on the issues in law, upon
hiih tl'c ailiitrators ai'e to as8ea.s the damages
istuiiiL'tl liy the plaintilf, and the costs on the
Ms ill fartaiid the costs on the said reference
all he ill the discretion of the said arbitrators,"
ami the award said notliing respecting the
(iiis ill law, and no damages were assessed
hcrtiiiwii : - Held, good. Masenir v. Vhamhers,
IQ. B. 18U. — 1'. C— McLean.
I Dalar.ition on the common counts. Pleas,
Oiiassuinpsit, payment, and set-ofl'. A verdict
taken for plaintitl', subject to tlie award
W. 11. "upon all matters in difference be-
irci'n thi'iii, as well in this suit as all other
litters up to the eonimencement of this suit :"
•tj to al)ide the event. The arbitrator awarded
«t the plaiiititl had good cause of action
^iiist the defendant in tlie said cause, and on
lie iiiattei's so Hubniitted, and w.is entitled to a
rtlict tlaTiin ; and assessed the damages to be
lid liy (letViidaiit to the plaintiff in said cause
i ii!4;t 8s. : Held, that the award w.is good ;
lit it ilisjKised by necessary inference of all the
ncs in the cause, and wa.s not uncertain.
IHm/.iv. i\t,ruU, 11 y. R 357.
ITlie iluolaration and pleas lii'ing the same as
Ithe la.st ease, all differences in the suit were
ieircil; ousts of the suit, reference and award,
Ithiile the evoiit of the awan'. The arbitrators,
ptinf,'in their award that they bad heard the
Kits ri.Kii /•)'/»;/ '/" /)itiiil>iiM, awarded linn-
■iiiio nihiij iIk siiiiif, that all proceedings
I till' lausi- slioulil cease, and that defendant
will |>aytn the plaintiff L'.'U I'Js. Id., in full
|all iloinaiiils in the cause : Meld, that there
a sullit'ii'iit di'tcrniination of the cause, and
inHiiiahlo nilVrinci' of a linding on each insue.
y/uM, .l/i.,/;», I I'. |{. I'll. I'. C. Draper.
siiluiiisKiiin direeteil a specilio tinding on
•rtuuhir issue, and the arbitrator gave only
ieinial awaiil lor defendants. A summons to
iisiiU' llio award on this ground Was dis-
iTgiil, mi ciiiidition that defendants should
I the I cists of this issue to be taxed to the
Will. ' V, ;,,/,/„» V. /)',„»•», I i>. I!. ;i;ji. c. i,.
nil. Uii'li.'ti'ds.
Vliiiv the ict'ertiiee was of all matters ill dif-
uiul aciiiius l>etweeii the parties, costs of
-ntciciicv and award and of said actions
, in thv; iliseretion of the arbitratoi-s, ;uid
Jtr was (.(ivoii to the arbitrators to order anil
'tiuiiie what they shunld think fit to bo done
lU
by cither of the parties respecting the matters
referred ; and the referees ordereii, among other
I things, tliat a certain sum should be paid and
accepted "in full satisfaction and discharge of
all the said actions and matters in difference;"
also directing that no further proceedings should
betaken in the suits :- Held, good, for it put
an end to the actions, so that it was unnecessary
to award upon the several issues, or lind siiecili-
cally upon the subject of costs, //i n linnvn
iiml Oi'crhi.ll, 2 1'. K. 0.
•See IV. (g) p. 127.
(b) OmittiiKj to dU/toHP of Suit.
Whore certain matters between A. and IJ.
were referred, and also all costs of suits by
either party, civil or criminal, and the award
wan that B. should pay a large sum to A,, and
also all costs of suits : —Held, sulliciently liiial,
without stating that the suits should cease ; ami
the award was upheld, though the court were
strongly impressed against the justice of it.
Ducat v. (Iri-eii, 4 O. S. 1 10.
Where a verdict was taken for Is. damages,
subject to an award, and the award did not in
any manner dispose of the verdict or cause : —
Held, not fwial, and bad. linutlij v. Mc/ntunh,
4g. B. 259.— r. C— Jones.
Award held bad for failing to give any direc-
tions about the action, or the costs of it. IMdij
V. Li'Htn; 14 (l B. 259.
Under the sjiecial circumstances of this case :
j Held, that the award was bad: I. For want
of a linality xs to Chancery suit referred ; for
by dismissing the bill .as to \V. only, the suit
was left still undisposed of as to costs and other-
wise as between the plaintiffs and the other
defendants. 2. Because, as the sureties were
directed to pay a large proportion of a grilss
sum, including accounts not arising under the
lease, it was not clear that they were not de-
clared liable for claims for which they could not
Iwj held responsiide. In rr Wlmli r v. Miirjiliij,
2 v. K. 32. I'. ('. McLean.
('. had sued B. on a contract, by which he
agreed to build for B. a dam B. to lind certain
materials, &c. .Afterwards they entered into an
agreement, reciting that dilVi'i-eiices had arisen
between them in reference to this contract, and
referring the same : Held, that the siibniission
authorized the arbitrators to consider claims by
B. against V. arising out of the agreement; that
the omission to dispose of the suit by the award
was no objection, as it was not mentioned in the
reference nor shewn to have boi^n brought before
the arbitrators ; and that the award was good,
except as to a iliret'tion to pay money to Iv, a
stranger to the reference. In n CiiiiijiIhII v.
nroini, 2 l*. K. 2!tl. l',C'.~ Kicliai.U.
Held, upon the .award set out in this case, that
the replevin suit was clearly and linally disposeil
of. Stiii.idii V. Mditiii, 22 (^t. B. I.Vt. "
riaintirt" declared <in H bond of submission,
alleging that the arbitratiu's heard the 'natters in
difference, amongst others, the costs of an action
in the (". 1*. between the parties, and .awarded
that defendant should convey certain specitied
land to the plaintiff in fee, and shouhl pay
,1'
WM
147
AliniTRATION AND AWARD.
U<!
him all tin; in^ts of llic rctfrfiu'i' ami of tlu'
Hititl action, iiiiil tliivt tlicy rtliould rxci'iitiMiiutiUkl
rok'iisoii. I)1l:ic'Ii, iiou-iiayiiii'iit of tin' costtM.
huffiiiliiiit i>li'iiil''il, I. .N< st fai'tuiii ; '_'. 'I'lmt
tliu iiriiiti'iitiii's iliil not nnki- any huiIi uu'iinl.
Tliu award im'iiticpiii'(l no suit, Imt awardeil tlio
costs of icfcivnic, " and al!4o all corttH tlint may
have been imiified liy any legal proccMM through
wliich the m.'ttter relatiu;^' to tluH arliitration
may have (Kissed i>fevions to this award." The
Ijlaintill's attorn' y in the suit in < '. I', pro-
duced the liill of costs in that suit : Held,
that the auanl was sutliiiently certain anil final,
if the existenci^ anil sulistance of the suit and
its connection with the niitters referred had
heen uroiierly set out in the declaration and
proved ; i)Ut (hat, on these pleadings, the suit
and the fact of its reference might he taken to
he admitted ; and a verdict for the plaintill' was
therefore upheld. Ilihln rt v. S.u/t, -.M <.>. H. .'81.
See /'inill:,,, r v. S,iiilf, ,; I \\ I!. -IS.
.•«;ee IV. (g) 1.. I-J7.
(c) M,lll,,\ rJiifiiiiJ lu l.nii.l.
Where the arhitr.itors had powi'r to award
upon convi'yanccH to he made hetween the
partie.s, the amount of rent to he paid, and the
security to he taken tlKHlor : lleld, that un
award directing "all nccessaiy deeds for grant-
ing," &c., ".ind for .-ifcuring payment of the rent
to he executed,' withoul s.iyingwhat kind of
conveyances, was li.id. Ilinlhi v. .Ur/ntni/i, 4
y. B. '2yj. v. «'. .lone.s.
|)e1)t on hond. Defendant set out the •.ondi-
tiou on oyer, which w;uh for the iicrfornianee of
the aw.irdof arhitr.itors, to whom it was referred
by the plaintill' and defendant to arbitrate,
&c., "uiion and concerning the possession" of a
certain lot of land, ajid also of and coueerning
all, &c. , and all manner of actions, eonti'oversies,
and demands wiiatsoevcr, between tlie saitl
partieti, from tiie begiiming of the world to
the date of the sail bond, and ]deaded "no
uwartl maile. " The [tlainlill 'nidied, siiewingan
award made by the arbitrators at the proper
time, and with tiie jiroper formalities, "that the
plaintitl's should p.iy to the representatives of
one .'^., deceased, within one month, the amount
line on certain notes of hand given by pluintit}'
to said S. in paynicnt of the land, and that the
defendant biiouhl gi\e to the plaintit)' on such
payment a sullicieiit deid in fee .simple for said
land, and tiiit defendant should not transfer
the said notc:i within tlic- ;;:iid month ; and that
the bond for a deid given I'V the saiil .S. to the
plaintitt' should be delivered by defendant to
plaiutitl'. The plaintill then averred notice to
defendant of (lie award, and assigned two
breaches, I. That the plaintitl' tendered to
tlefendant, the holilcr of tiie .iiid notes, and to
the deforidant's wife, the e\ei.iilrix of S., the
full amount of the notes, and i.lemandeil a deed,
but that they refinetl to ai i.'ept the money, and
defendant refused to give the deed, although a
reasonable time had elapsed ; '_'. That after the
tender and refus.d in tlie lirit breach mentioned,
and before suit, to wit, &..•., the plaintill' rei|Uested
dtfeiulant to deliver to plaintill' the bond for
a deed ; and although a reasonable time h.ld
elapsed, defendant would not deliver the said
bond. The defendant rejoined, yetting out the
award verbatim, and then demurred He|)ar,itt;
to each breach: Held, (McLean, J., duhit.u'4
on the tlrst point), I. That under the geiiir,!
Words of the HubmisHion authority wan gjv..,
to arbitrate as to the fee simple of the Lm,'
if it were a nuitter in iliH'eroncu between tvl
parties, which must be ]>resumed ; '_'. n^I
the award was void for not deciding upmi t:,l
matter expressly submitted to the arbitr;it,J
respecting the iiossession : Hehl, also, that t'J
defendant could not, by thus setting nut li.f
award in his rejoinder by suggestion, maki' ,:
part of the plaintiff's replication, as in iln,,.
of a deed [ileaded with profert ; and that ;,
defendant's demurrer should have lieeii tu :
replication, and not to the several breadii'. .,
signed in the replication. Itut upon the uli
record, judgment was given the defendant
the demurrer, because the award as set mit
the plaintitl' himself in his re])lication w.is \m
HniiiUrl V. /'arti, I C. 1'. :<70.
An award after directing a certain suiii t..
paid to defendant for his interest in land, ail>k|
" Wo have taken it for granted in making ti/
award, and the saidC. H. shall have the ri~|
to cross the railway track from one part
jiroperty to another:" Held, not sulliii.iit.|
delinite or certain. T/ir (!ri<il t\'f.-ifrni /,'
To. v. /liiii/, \-2 ^). 15. I-.'I.
When an award betwein tin: (!. W. Hi
and a person through whose lands tlir i
p:is.ses awards a sum for dam.ages, and im |,jj
ment for the l:md t:tken tlirects a coiim 'j!..
the awaril will imt bi' set aside for not >it;,.
out thi^ land to be conveyed by niettn ;
bounds: Seiidile, that a conveyance is imt !;.■
sary. Ilnul )ViMlirii I!. If. I'n. v. A'r,/,,;
I*. '\{. r.O. I'. ('. Ihirns.
.\rbitrat(Us aiipointed to determine tlnitJ
of land rei|uireil for the railway, and tlieiiJ
ages the owner might sustain thereby, avLihiJ
that the cciinpany should jKiy .t'.'>() per :i.rt:|
the land, CI I .'is. for damages to the sai.l
and fl.'l l.'is. foi- other d:iniages. It wa-'a^icl
ted that damages to other land were cl;iiii,c,
the arbitration : Held, that the ;iward \v,,;it
not being linil on the matters submittei
(linil \\,<l,iii It. ir. ('<'. v. Iii,l,,;mh,\\
\\. lM;!. I'. C. Sullivan.
An iiwai'il respecting dillerenees betunujiii
tilt' and defendants as to the diversion of a »:v{
course by defendant 1, directedthat the iLf.
should turn the stream ao that the plaiiitill-ii',
have the .-lame use of the water a-i he iV'niit.'i
had for the perioil of live years from tlii' ;i«i-|
and that the plaintill' should pay defeihl
a year during that jieriod : — Held, luinrtiil
and not lin:d or conclusive, limi: n \.
'1 W W. Ti;. C. I,. Chamb. liurns.
The submi.ssiou recited an action by |il.iii
against defendant, and referred all iiiattirii
differences for daUKiges between the [(irtiel
directing that "they were to go by tlu- M
W'hich will be produceil, and also to t ike a
consideration the wheat on the groiiinl.
award gave plaintill a sum for d.image.s, ' i (
jiaid out of the amount awarded on tlif is^
Hereinafter mentioned," and directid that]
plaintiff should pay defendants " for a ccii^
amount of wheat now in the grounds uf iotsl
and 14, '2nd concesBion uaat, in the toniiihifl
Toronto, to be paid as follows : viz., lorq
U''
ARBITriATlON AND AWAIJD.
l.)0
Ibcftt that now ifi growing in ttiiniuKT fallow, to
k paid f<'r f*' ''"'• '"'*'■'' "^ ^'* "^- P""" **^''''' •*'"'
tr wheat that is now growinu in barli^y an<l iica
tabble, to 1)C paid for at thn rate of i'.'l pnr
re." It appeared that the land had licon leaned
r the plaintitl' to defendantn for six years from
,^ 1st of April, 1830:— Held, that the award
■fliciently disposed of the matters referred, and
lat it was unnecessary to specify the number
' acres of wheat, the quantity not apjioarin^ to
JVC been the matter in dispute, but the price,
I rf Moiii'iomrri/ ami Momr, '_' P. |{. !I8. -I". ('.
-Ilftgarty.
An action against a railway company tor pen-
jiu bac|( water, and thus nreventing the uae of
je plaiiitilV's mills, was referred, with power to
be arbitrators to determine the damages already
Jtaineil, and to direct how the ohaiinel should
I fnrmeil by the defendants, or fix a sum to be
lid in lie\i thereof at defendants' option, and a
jif within which to chooH«\ They awarded
j;,") for such dam:«pes, and directed that within
months from the 1st of .Inly, J.S.VS, dcfcii-
ni:; Hlumld construct a channel of spcciticd
or u) lien thereof shoiiM pay the ])laintin
on or before the 1st of August, IS.'iS :
till 1. Ilia' i' could not bi- asxiiinc(l from the
; tli.it the .niiiM.il rriital of the plaintiU's inilhi
only l''.'.V), tli;it the damages had bcm givon
r more than six inonths before the coiumciicc-
nl of the suit ; and, Spinblc, that tliiM couM
I no objection, for that arbitrators, win n not
<raini'il by the siibmisnion, arc not bound a;<
Off. lire in a I'oiirt of law. 'J. That the award
iither respects wa.s snllicicntlv certain .ind
ll (Ihn V. (Inniil Tniiik /{. ' W. (•«., '_' I'.
, .'(77. I'. * '. Hums.
Irnil'^ra Hubnii.sHionof all diirurenccs betucen
lintitf anil defendant, (not spec-ifying any siili-
of ilis|Mite), with jtower to determine what
sy -liould see lit to be done by either, the arbi-
Moi!' by their award - after reciting that one
by a writing endorsed on the submission,
l,i(;rpeil to submit to them a charge of f'.'tX)
ranniini, made by defendant for the niana>{e-
nt of curtain i>ropcrty in Herlin, in which «!.
Itlio )ilaintiir were jointly interested found
»t oil the 1st of September, IHtiO, defeiiilant
inulebtedto the plailitilV in t.T-M!) 17s. 8d.,
they ordered him to pay ai:cordingly,
|tb interest half-yearly until paid. 2. As to
iiliu proiterty, that ;is reganled the rights
^d liiiliilities of th(^ plaintitl and defenilant
en to, they did not lind that any ditl'ereiico
lari.Htn calling for their arbitrament, (further
Ui iii< niigiit regard the said amount claimed for
nii;,'ciiieiit.) and they therefore made no adjn-
alioiioii such rights or liabilities. .'{. .As to
tiiiii 1 lopcity in (iuelph, lomprised in a deed
ule by ilefeiidant to plaintitl', they adjudged
; tlie plaintitl' sholihl hold the same in fee by
iuc of Mtieh deetl, but that if he, or his heirs
I »ssi>;iiH, shmild sell the same, or any part
reol', iiml should reali/e from such sale a larger
tliiiii L'lKI"), he or they should aeeonnt for
-urphis to the defendant, his executors, &e.
an aetioii on this award, defendant, after
liiiL'itout at length, pleaded; 1. That the
itnibirs awarded ni>on matters not submitted,
Iwliieli accrued after the submission, and upon
iDunts lietwecn the parties to a ])criod long
■l-tliesnbmission. '2. That the award was not
, in this, that the said matters relating to tlio
Berlin proprrty were matters in ditFcrrnee, And
were subniiltril to the arbitrators, but that thfly
did not award thereon; auil in this, that they
ilid not rl|Hpo.sc of the ditVerenee rc'pcetmg the
value of the tiinlph property, but left the same
unsettled and dcpt inbiit upon the sale thereof by
the plaintitl', when only till' amount to be ae-
counted for to defenilant cniild be detei mined :--- •
Held, on deniMirer, both [(leas good ; and as to
the Hecoiid plea, that the avi-rment as to thn
licrlin pro|K.rty was a siitlieient defence, and
the idea theriforc sullii ient, although the award
as to the (iiulpli land was not wanting in final-
ity : -Held, al^-o, that iipniitUe evidence, set nut
in the ca.se, the lii.^t plia was not proved ;
Qil.ire, iis to the iiiteiiuon and elbi't of the direc-
tion in the awaul to p.iy the LTI.'.MO, and interc.it
iialf-vearly until p.ivniiiit. si^ ii;i,-l v. WiU<l<r,
•.•0(/ 15. ill!*.
The pl.iintill atol ib li loi.oil, on iip\ iii^ adjoin-
ill;; lots, bavin;; eli-piiteil a.-> to the draiiiaj;e of
surface water, referred tiie i|iiesliiin to fence
viewers, who awanbil th.il drl'einlaiit .ilioiild
open a ditrli from tin Ijni fern i bet ween himself
.iiid defeiiil.int, lliroiiu'h the plaintiU's farm, of
sullieient lb ptli to e.irry oil' the water then in
the iliteb opeiieil by di I'liiilant, about twenty
rods in b n;:j:tli, and that the plaintitl' slioiild
iii.ike and kei p oikh tin:, siine portion of dit<'h,
eoiiiiiien'iin,' at the liic fence, and of sullieient
leii;,'lh, width and fall, to carry oil' the water;
to lie t«'i "lid ah ilf lc( t deep at the line fenee ;
said dilcb to be m.ade before the l.st October,
I.S(!."> : Held, IuIIiiwIhl; Murray c. |)awHon, 17
( '. I'. "iSS, lliat till' aw.inl was liad, fur not snUi-
cieiitly lb linin;; tin- pnint of ivimuienci'inent and
course .and poMtimi of the diteli. /}iiir.i(iii. v.
yfiirnii/, 'jii i.t. r.. itn.
.\ dis|iute aio.ie bctWien tile Noltlleril Kail-
wayt'o., and the < 'orpor.itioii of harrie, aa to
the constnii tion of a br.ineh Imc into the town,
;iiii| it WM.S iioiccd by both p.iilics tli.it a bill re-
, l.itin.L; tliereto, wliicb was before the lioii.se of
p.irli.inieiit then in .sis^ioii, : lionbl be w ilbdrawn,
i and .all dillerelices <'oll1li etcd with the claimof
the town aj;.iiiist liie cuiiip.uiy be n I' rred to one
; H. The .irbit r.itni- .iwanbd that there was in
I |.S.">,'!, a valid a;^ici iiuiit by the .oiiipany with
the town to cMii-,tiiii t tliis liiir, |uo\iileil that
' suitable land .'lioiild be procured by ti.e town ;
' that such land was mi prociind, init that the lino
I h.id not Ik'cii eonstnicted ; that tin- claim of thn
I town to have such a;;re< iiiciit perfoiined still
subsisted, "and if not perbirnicd tiieir ri^^ht to
eoinpens atii'ii in li' u tie rcof oii^nt to be awar-
ded. " lie tile II .iw. allied as eoiiipeiis;ition for the
: non-pcrfoiiaaiice, and in full satisfaction of
! said claim, that the eoni|iaiiy should piy to the
; corporation at a day and place nanieil C'ljOOi),
; and should, w In n iti|nestcil by tint town, con-
vey to tlicin in fee ,ill the lands iiicntioiied in a
ceitain iiideiitiiic iiiade by mie II. to the com-
pany ; and should iiiither, when so rci|iiested,
release .ill claims in rcspeet of the land and right
of w.iy conveyid to ibcin by the several parties
over wlio.se lands the s.iid branch line was to
pass. On motiiiii to set .aside tbisawanl for de-
fects apparent on the I'aceof it : Held, that it waft
not uncertain as to wlicther the agreement had
been carried out, and whether the comjmny had
an option to pay the l'j,(HH) or lonstruet the
branch line, but sullieicntly shewed that it had
not been performed, and tli.it no such opticni was
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23 WiST MAIN STREET
WEBSTER, N.y 14SS0
(716) 872-4S0J
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151
ARBITRATION AND AWARD.
152
m '.
I
1
I' 1 1
inteiideil ; that tlic directions as to the convey-
ance and release were authorized, and the latter
not objectionable for omitting to state to whom
it wiis to be made ; and that as to the amount,
if, as contended, the corporation could claim no
damages beyond what they had expended in
procuring the lanrl, &c., it should be assumed no
more was given. Jii re Cnrporntion of the Town
of/iarne v. Northn-n R. W. Co., 22 Q. B. 25.
On a rc/erence of disputes as to the title to a
lot of land : — 8emble, that an award of $400,
"in full consideration and discharge of all plain-
tifif's claims to and ugain.st the land," shewed
that the arbitrators had decided that plaintifiF
had no further title to the land, and that it
.jelonged to defendant. Bond v. Bond, 1 5 C. P.
613. See also En-rM v. Whitcford, 4Q. B. 2(51.
See VI. .-), f), pp. 141, 143.
(d) Other Ca^en.
Declaration and award as to payment of money
by instalments : — Held, sufficiently certain.
Watson. V. Siithrland, 1 Q. B. 229.
Where several parties by jointly submit their
claims, the award is final, though it does not
distinguish the sum each one is to receive.
Meam V. Pnmdfoot, 4 Q. B. 40.
Tlie plaintiff sued defendants in case for certain
injuries, specifically set forth in the declaration.
The cause was referred, and a verdict taken for
£1000, subject to the award. By the reference,
the .arbitrators had power "to take into consid-
eration the various offers made by defendants,
anil finally to settle .and dispose of all the matters
in difference, awarding if they should think fit,
the payment of an entire sum in full satisfaction
of all past and future demands," &c. Upon
this the arbitrators ''-iclared, that having taken
into consideration the matters and things which
they were empowered by the submission to con-
sider, they incrcTsed the verdict to £1287 10s.,
with co.sts to £4f! 10s. , and they concluded the
awan' thus : "And the said sums so to be paid
as aforesaid, &c., we do award, &c., be, and the
same are for all purposes to be taken in full
satisfaction of all past and future demands of the
plaintiff against the said defendants, for or in
respect of the subject matter or subject matters
of the said cause, and all and every part thereof."
The defendants moved to set aside the award,
objecting — 1. That the arbitrators, after hearing
evidence (as stated in affidavits filed) of other
injuries than those mcnt'oncd in the declaration,
did not make their award "of all matters in
difference, " as submitted by the reference, but
confined it to the subject matter issuing out of
the cause of action in this suit. 2. Because they
did not distinguish in their award the sum al-
lowed in the cause, from the sum allowed for
the other matters in difference : — Held, award
good under the submission. Watmn v. Toronto
Gas Lvjht, and Water Co., 5 Q. B. 523.
Action for injury to a water-course and mill-
privilege. At the trial the cause and all matters
m difference between the parties were referred,
and tlie arbitrators were especially authorized to
determine the value of the property alleged to
be injured, as well as to award damages. A
verdict was taken for £1000 ; which it was
agreed should stand as soourity for such value,
as well as for any damages awarded, and
should be reduced or increased according to tlie
award. The arbitrators awarded that the plain-
tiff was entitled to a verdict, and assessed the
damages in the cause at £500, and ordered tliu
verdict to be reduced to that sum : — Held, that
under the terms of the reference the verdict
might stand as security for any damages in the
power of the arbitrators to awanl, and there fcirc
for those given, though the arbitrators took into
consideration injuries caused before the first day
laid in the declaration, and which pcrliaps,
strictly, could not have been recovered for in
the cause. (The award itself was clearly nut
bad on this ground) : — Semble, that in the
absence of any express agreement in the suh-
mission, it would be unnecessaiy to distin-
guish how much was awarded in respect of
matters in difference in the cause, and hnw
much for other matters. Willianix v. /^ijimir
10 Q. B. 24.
All differences concerning the renting of a
farm by defendant to plaintiff, and all other
matters in dispute were referred to arbitrators,
who awarded a division of certain crop.s ami
stock specified ; and in order that an ecpial divi-
sion should be made, they ordered that the
defendant and plaintiff should select two disin-
terested persons from the neighbouring farmera,
whose decision should be final : — Held, that tlie
award was bad for the delegation to third parties,
and for uncertainty. Harrbiijlon v. Eilimii, 11
Q. B. 114.
All matters in difference in this cause, and on
the building agreement between plaintiff and
defendant, were referred, costs of the cause
and of the reference to abide the event. Tlic
award, after di posing of the different issues in
the plaintiff's favour, assessed his damages on
"account of the non-performance by the defen-
dant of the promises in the said declaration
mentioned, and on account of the matters in
difference on the building agreement between
the parties, over and above the plaintiff's costs
and charges, to the sum of £52 Ifis. 7-Jd:"-
Held, 1. No objection to the award that a gross
sum was given, without saying how much for
non-performance of the promises declared on,
and how much for the diflference on the biiililing
agreement ; 2. That it was unnecessary to deter-
mine what dfvmages the defendant w.as cntitleil
to on the building agreement, or the amount of
extra work. Jones v. Reid, 1 P. R, 247. -P. R
— Burns.
.Semble, that the award pleaded in this cise
was void for not disposing of all the points snb- |
mittcd in relation to the note sued on. Chi |
V. Elliott, 1 C. P. 252.
Upon a generiil reference to arbitrators nf all
matters in dispute between two parties ; -Hclil,
not necessary that the award should distinguish I
between the matters in dispute in the cause,
upon which the reference is made, and general |
matters between the parties referring. /.«;/'/ v.
Smith, 10 C. P. 443.
Where all matters in difference were rofernil
to three arbitrators, the award to bo m.Kle in I
writing by them, or any two of tliem, and it |
afterwards appeared that one of the three dis
sented from an award made by the other tvm, i
and that they had made no decision regarding a I
promissory note in difference, which had becoj
l-W
hrnught under their
aside. Kemp v. /fen
The plaintiff and de
matters touching and
demands whatsoever ^
in respect of the estat
as to a specific devise),
and demands whatsoe\
the plaintiff, and defen
or otherwise howsoevei
that §4,485 was due fn
nf T. P. and otherwise
of the matters referred'
to 1)6 paid, and that wl
full satisfaction of al
against defendant as si
wise in respect to all
Hehl, no objection to tl
(ind separately the ai
defendant as executor,
Pfirinv. Perrin, 32 Q.'
Two partners (plaintif
dissolved, referred all d
named. The award dir
he paid by defendant to J
that the same was "to b
security as may be rerri
plaintiff harmless":— H
Held, also, that the awar
dant should pay all debts
was sufficiently certain
I tLe amount. McLean \!
Held, upon a reference c
between two parties, thi
tlie delivery of a certain r
w,is not m dispute in this
"PI"'."' the Q. B.,) and
nnlermg releases between
l).v, as was contended, leav
[ was not void. Lmul v. .V
Held, upon the award
that the replevin suit and
[session of the goods in ay
I the other goods, were clean
Inf. Stmson v. Martin, 2:
Remarks upon then. -on
Isioned l)y the neglect of
Ihnsl y of the matters refer
Iv. Hnemn, o L. J. N. S.
lA. Wilson.
1
^Uereit is essential to
Ipartnership was an ordinary
IH clearly deciding it i., ;
|Wy<v. Wade, 8 Chy. 3(J3
Sec Ryau el al. v. Pomro;
8. Partial I't
Where costs ,vere awardc
""I could not be scpara
Rl*hc award was set
f'"«', 6 0. S. 105.
All differences conccrnin
H ^y. 'lefcndant to plai
Mtcrsmdwpnte, werercf(
ffto awan ed a division of
m specified ; and in „r
l^ion Bhould Ik, ma,Ie Z
lob ant and plaintiff ;i,„,
ptedpcHions from the nei
153
ARBITRATION AND AWARD.
154
brought under their notice, the award was set
aside. Kemp v. HemhrHnn, 10 C'hy. 54.
The plaintiff and defen<lant agreed to refer all
matters touching and concerning all claims and
demands whatsoever of the plaintiff against f>r
in respect of the estate of the late T. 1'. (except
as to a specific devise), and all accounts, claims,
and demands whatsoever then existing between
the plaintiff, and defendant as executor of T. V. ,
or otherwise howsoever. The arbitrator awarded
that .?4,485 was due from defendant as executor
(if T. P. and otherwise, to the plaintiff in respect
lit the matters referred, which sum he directed
to he paid, and that when paid it shotdd be in
full satisfaction of all demands by plaintiff
against defendant as such executor, and other-
wise in respect to all the matters referred : —
Held, no objection to the award, that it did not
foil separately tlie amount awarded against
defendant as executor, and in his own right.
rmin V. Pd-rln, 32 Q. B. (iOO.
Two partners (plaintiff and defendant) having
dissolved, referred .all <lisputes to three persons
named. The .award directed a certain sum to
he paid by ilefendant to plaintiff, .and then added
that the s.amc wtvs " to be secured by such good
security iis may be requisite to save the said
plaintiff harmless" : — Held, sufficiently final :
Held, also, that the .award directing that dcfen-
ilant should p.ay all debts clue by the partnership
was sufficiently certain, without determining
the .-imount. Mr Lean v. Kczur, .3 C. P. 444.
Held, upon a reference of all matters in dispute
between two parties, th.at an award directing
the delivery of a certain promissory note, (which
was not in dispute in this action, but w.as sued
upiin in the Q. B.,) and upon such delivery
nrdering releases between the parties, and there-
i liy, as w.as contended, leaving the note unsettled,
: was not void. Lund v. Smith, 10 C. P. 44.3.
Held, upon the award set out in this case,
I that the replevin suit and the right to the pos-
1 session of the goods in question therein, and of
I the other goods, were clearly and fin,ally disposed
[of. fiiimon v. Mnrthi, 22 Q. B. 154.
Remarks upon the ii;'^onvenience. and loss occ.a-
Isioned l)y the neglect of .arbitrjitors to dispose
ilinally of the matters referred to them. Jones
h.Hmon, 2 L. J. N. S. 107.— 0. L. Ch.amb.—
I A. Wilson.
Where it is csscnti.al to determine whether a
Ipartnerahip was an ordinary one or not, an award
Infit clearly deciding it is void for uncertainty.
\itbjn V. Wade, 8 Chy. 3G3.
See Rijan el al. v. Pomroy, 1 P. Pi. 59, p. 140.
8. Partlnl VaUilily.
Where costs ,vcre awarded without authority,
ml conld not be scparjvtcd from the sum
^warded, the award was set aside. Wvbutcr v.
^M, 6 0. S. 105.
.^11 differences concerning the renting of a
lami by defendant to plaintiff, and all other
btters in dispute, were referred to arbitrators,
klw awarded a division of certain crops and
pock spccitied ; and in order that an equal
livision should be inatlc, they ordered that the
Icfcmlant and plaintiff should select two disin-
lercsted persons from tho neighbouring farmers,
whose decision should be final. And they
further awarded £150, to be paid to the plaintiff
by defendant : — Held, that the .".ward was bad
for the delegation to third parties, and for
uneert.ainty ; and that the plaintiff could not
recover the €1.50, that part of the award not
being neparable from the rest, //arrhiriton v.
Edi-<on, 1 1 Q. B. 1 14.
When after action matters in dispute have
been referred generally, without any thing as to
costs, and the arbitrators award a sum to the
plaintiff, and direct that the costs of defence and
of the award are to be deducted therefrom,
the court will not set the award aside because of
such deduction. Senible, th<at when arbitrators
aw.ard the costs of the arbitration without au-
tliority to do so, if they are separable, the award
is only b<ad .as to that part. Faulkner v. Saulter,
1 P. R. 48.— P. C- Burns.
t.'osts awarded without power are separable,
and the award is only bad as to th.at jtart. Ih. ;
Jnne.-< v. /{eld, 1 P. R. 247. -P. C. -Burns ;
J{«d,/!f V. Lcfler, 14 Q. B. 259.
Where differences between the p.arties to a
building contract .as to extra work were referred,
and the arbitrators awarded on matters in regard
to the original contr.act not relating to extra
work, and the b.ad part of the award could not
be separated, the awanl w.as set .aside, //t re
Knowkfii V. /h.v/;.s 7 L. J. 124.— P. C— McLean.
Per Dr.aper, G. J. — On a reference under 1(5
Vict. c. 219, and 20 Vict. c. 80, the Toronto
pjSplanatle Acts, the sum awarded wivs directed
to be p.aid forthwith, whereas the statute allows
a year from the award or from any rule of
court ordering payment ; but : — Held, th.at this
part of the award, which w.as clearly bad, might
be separated from the rest. //( re C'orporntion
of the Cifi/of Toronto v. John Leak; 23 Q. B. 223.
A s\ibmission, after reciting that differences
had arisen between plaintiff and defendant
respecting, .among other matters, the title to a
lot of land, referred the m<atters in dispute to
certain parties named. The arbitrators .awarded
th<at " as to the right and interest of the parties
respectively " in the land, &c., defendant should
pay to plaintiff $400 in fidl compensation for
improvements m.ade by plaintiff, and in full con-
sideration and for the discharge of all his claims
to and against the said land, the said $400 to be
paid to defendant in three equal instalments,
fixing the periods for payment and directing how
the second and third instjilments should be
secured ; and that so soon as the $400 had l)een
fully p.aid, or secured as aforesaid, the plaintiff
should give up possession of the land to defendant.
The .aw.ard then proceeded to provide, th.at if
defendant should not pay the first instalment on
the 15th January, 1865, or secure the second
and third inst.alments, he (defendant) should, on
said 15th of .lanuary, convey to plaintiff in fee
all his right to said land, and that the plaintiff
should, in consideration, p.ay two several annui-
ties — one of $80 to defendant for life, and another
of $20 to defend.ant's wife, during coverture, for
her separate use, with certain directions as to
increasing his or her annuity, according as tho
one survived the other, and as to the occupying
a house on the Land free of rent, &e. :— Held,
that the alternative direction in the award in
the event of defendant not paying was in excess
■rV
I !
t ■ ■ J
i.^-\
li m SI
155
ARBITRA-TION AND AWARD.
150
157
UiU.
I 1
nt '.
1
of the arbitrators' powers, as they were not
authorized to make a bargain between the parties
as to the terms on which the land should be sold
by one to the other ; and even if they were,
they had no right to direct that a portion of the
money, which was to be paid to defendant for
it, should bo appropriaterl to his wife without
his consent : but— Held, that the other alterna-
tive, being an express direction to pay by a
certain time and in a certain way, and being
separable from the rest, might be upheld and
enforced. liond v. Bond, 15 C. P. 613.
By agreement between the plaintifl's and defen-
dant, the plaintilFs agreed to draw and deliver
certain logs on the ice for defendant on or before
the 20th March then next, for which the defen-
dants covenanted to pay so much per log. It
was provided that, should the sleighing not hold
good for four weeks thereafter, the plaintifl'a
should be bound only to draw such proportion
of the logs as the time of sleighing should 1)o:ir
to the four weeks. By a submis.sion under seal,
reciting this agreement and that dilTcrcncca
existed in respect thereof and of the advancers
made thereon by' defendant to plaintiftVi, all such
diflferencea were referred to arbitration. The
arbitrators awarde<l that there was due from
defendant to plaintiff.s, in respect of said agree-
ment, $8()(!. To an action on this award, defen-
dants pleaded no award ; and one of the ar))i-
trator.s, as a witness for the defence, said the
evidence satisfied them that, owing to the snow,
the plaintiffs could not proceed with the work,
and so notified the defendant, who told them to
go on and they should lose nothing ; and that
on this understanding the arbitrators i)roceeded,
and awarded to the plaintiflTs the cost of drawing
the logs, thinking they had a right to do so
under the last clause of the agreement. No
objection was made Ity defendant or his counsel
to the reception of the evidence of .<?uch under-
taking, or that it was a matter imt covered liy
the reference ;— Held, that the arbitrator^ had
exceeded tlieir jurisdiction in awarding money
to the plaintifl' for work done under the verbal
agreement, which %vas not within tlie wul)mis-
sion : that this amount not being separable froni
the rest, the award could not be fjiip|)orted ; anil
that such excess of authority ali'oriled a good
defence to tiic action. Tnllij d nK v. ('/miii'irr-
lain, III Q. B. 29!).
Althougli the general princi]ile is, lliat an
award may be good in jiart and bad in part ;
still where arbitrators found a sum due to a
creditor, and directed the delitor to ]iay and the
creditor to receive it in a certain specified
manner, the ireditor was not allowed to adopt
the award in so far as it found the sum due, and
reject that portion of it directing the mode of
payment, Dalfon v. McXidrr, 5 Ciiy. r>0\.
0. I'rfi'iriifc lull l.
The arbitrators met and two agreed upon an
amount, and told the third (who dissented) that
they intended to award this amount, and after-
wards, in the ab.scnco of the third, and without
notice to him, they increased tlie .award ; the
objection being that the same two arbitrators
took evidence secretly and without notice to the
third, by going to see a mill at the urgent request
of defendant, but during hi:i abrjancc : — Held,
suflioient ground to refer the ease back, Imt
defendant not wishing that :— Held, not aufii.
cient to set aside the award. Hall v. Wilson, 7
C. P. 272.
Under a submission giving power to the court
to refer back upon any application to set aside
the award : — Held, that the power might he
exercised repeatedly. The arbitrators, on a
reference back, having taken the evidence ni
professional witnesses without notice to the dc
fendants : — Held, that such notice was ind
pensable ; but as the arbitrators seemed tn
have acted under mistake, and not from a settleil
intention to do injustice, the matter should lio
referred back a second time. In re Mankij v.
Anderson, 2 P. R. 35k — P. C. — Richards.
Agreement by the parties to withdraw i.;i
but one matter from consideration, and try to
settle tlio other matters themselves and if thry
could not do so then to refer them back to the
arbitrators. Reference bade accordingly. V,i|.
idity of second award. Bahij v. Davrpnurl ■"•
Q. B. Go.
Where an award is good on its face, the cumt
will not refer the matters bick that the arhi-
ti-ators may state the grounds of their decision,
.and thus cn,al)le a motion to be made against it
if illegal. IIV.Vs' v. (.'T.oir.ski, IB Q. B. 42.
Where a reference contains a power to the
court to refer back, it will be exercised only
wiicn it a[)pe,irs that the award is egregionslv
wrong, or not sanctioned by the evidence ; and,
Held, that no sullicicnt ground appeared in thi»
case. //(, (v liruini and Ovcrholt, 2 P. R. t) -
P. ('.- .McLean.
Objections not appearing on the face of the j
award (Munot be raised against an application
for attachment. But where, on such application,
it ajipeared that defendant had not attended the i
jirbitnation through some misapprehension, the
matters were referred back Blwrkcrv. f.nuiill
2 1'. B. 14. -P. C.-Burns.
Where cro.ss rules had been obtained, fur, i
atlaclunent for non-performance of an aw.url, |
and to set tlie award aside, and the affidavits
were conllicting as to whether a particular (iiiev j
tion had been decided by the arbitrator.^, and as)
to alleged mistake in calculation, the court, |
under sec. SSof the<'. li. P. Act, 1 85G, referred |
b.ack the m.atter.s in dispute, discharging the nilf;
for attachment without costs. In ri- .S>i'//v.|
h'annr;/, 2 P. R. 82. P. C. -."SIcLcan.
Matters will not be referred back upnnty
same grounds, as to the <liscovery of new evi-i
deuce, &c. , as would support an ap])li(\atinn iVirl
a new trial. McC'laiii v. Maitland, 2 P. K, 2;5,f
— P. C — Burns.
On a compulsory reference a motion to rofeJ
back tlie award may be made within the lirsl
six days of the term following its piililio.^tionj
KctUrcn V. OooiUrlnim, 20 Q. B. 500.
The award, in an action on a buihliii;' mnl
tract, wiis in favcmr of tlie plaintiffs, and oiu'
the arbitrators, in compliance witii the ilefenil
ants' request, certified, without submittingara
question, that the building contract was bindini
and the engineer's certificate conclusive, an
that the award had been based on that assunij
tion. The plaintiffs moved to refer back ill
award with a direc
not bind, or to ref
amendment, by staf
that as tlie arbitratoi
any point for ducisii
do so, tlio court couh
Tiie effect of the C
tlie court to refer I,
.liter tlie arbitrator's jj
uourt tiierefore refiusi
objecti.ni, not appareli
that in eonsidurin.;
olauned foi- tlie arbitra
the engineer's certidca
Imnnl the plaintiff.
,i44.
Au award will „„lv
Mine grounds that wiiu
Its being set aside. 'J']
lack on the grouiiil ,
iviileiice. /,(,//fi y, ;/
f'. C'-^KieJiard.s.
After the entry of ju,
t.w late to ask to jjc
i|'<iginent and have tlie
the arbitrators to enable
custs in proper form, as.s
tosocertifyisag,.„,„„,
^'•'•p V. llininiioiid <) r
-Draper. ' ' "■'
An applieation to refei
mistake in charging tlie
«im twice M-as refused, th
oil .ilhdavit, tliough the a
'»1"3 opinion the case she
« not sure this ,vas ,u
Wtillbrulije, a p. ({ ,_-- "
, Held, that under tJie eii
:'iihi8 cause it eould not'
tator had fully consider^
)»dgme„t on the questio
Mtters were referred bad
Ifflw/, 3P. R. lov-p
An arbitrator, as anneai
Jgn on the arbitral'
■ianiig misconceived certa
Ije^tood some alleged a 1
ii award was referred bac^
a to the particular item afl'
•^tl> special directions as
p"%5P. R. 108. -P. c.
JVhere a rule is asked for
C '^,ff«!«lant deducting
H«ly intending that el
f»own costs, the rule wij.
Hout costs, the costs 01
ti '^/''^ arbitrator
^<:m Jordan y. And,!.
•••—(-•alt.
[An award, bv mistake, ^
rl''^P^'"ntifi- should pay
Want s costs of the referenc
J/eeudant should pay
C the plaintiff was di,..
CLT'^^^^^^'^thMa;
K I /T"»*«' for.
F-^to defendant obtai„;c
157
ARBITRATION AND AWARD.
158
■ed
award with a tlirection that the contract tlid 1
not bnul, or to refer back the certificate for i
aniemlment, by stating the facts : but — Hehl,
that as the arbitrators liad not chosen tf) submit
•my point for decision, and were not bound to
do so, the court could not interfere. Ih.
The cfiectof the C L. P. Act, s. I(i4, enabling
the court to refer back, is not in any way to
alter the arbitrator's power or authority ; and the
court therefore refused to refer ))ack upon an
(ibiecti'in, not apparent on the face of the award,
that in considering the nature of the work
I'laimed for the arbitrator had not confonneil to
tlie engineer's certificate, which it was contended
iKiund the plaintill'. Itxul v. ]V,h; "20 Q. H.
:d4.
All award will oidy be referred back on the
same grounds that wouM formerly have justified
its being set aside. The court refused to refer
hack on the ground of the discovery of new
iviilencc. Lalta v. Walllti-iihii', ~ f,. .). "JOT.
R C.— Kichards.
After the entry of judgment by plaintifl", it is
till) late to ask to be allowed to set aside the
iiulginent and have the cause rcfen'ed back to
the arbitrators to enable them to certify for full
ousts in proper form, assuming tliat the omission
to so certify is a ground, but as to which, (juaire.
A>;) V. llohiwo'tKl, it L. J. 157. "C. L. Ciiand).
-Draper.
,\u application to refer back on ac(!ount of a
mistake in charging the plaintiff with the same
iimi twice was refused, the mistake being denied
oil affidavit, though the arbitratoi" certified that
in his opinion the case shouhl be reopened, as lie
was not sure this was not the case. Latin v.
WMhi-Uliie, 3 P. H. loT. -P. 0.--Hicliards.
Held, that under the circumstances appearing
iu this cause it could not be .said that the arbi-
Itrator had fully considered or really pronf)iiiKed
I judgment on the questions jubmitted, and tlie
jmattera were referred back, hi re Ingrtvull anil
\Ehml, 3 P. R. 162.— P. C. -Richards.
ki\ arbitrator, as appeared from his minutes
Itaiien on the arbitration and other evidence,
Ikriug misconceived certain facts and misun-
Ideratood some alleged admissions by counsel,
pe award was referred back for reconsideration
I to the particular item afl'ect^l by this mistake,
rith special directions as to costs. C'lanci/ v.
Imy, 5 P. R. 108.— P. C— Gwynne.
Where a rule is asked for to refer a case back
laii arbitrator to allow him to certify to pro-
bnt defendant deducting costs, the arbitrator
idently intending that each party should pay
lovm costs, the rule will be made absolute
rithout costs, the costs of taking the award
lia before the arbitrator to be borne by the
plicant. Jortlai' v. A iiihhr, 8 Tj. J. N. S. 67.
C.-Galt.
I All award, by mistake, instead of directing
lit the plaintiff should pay his own anil the de-
Hdaiit's costs of the reference, except $12 which
'(defendant should pay, directed th.at the de-
nt should pay such costs e.xcept the %\'2,
kich the plaintiff was directed to pay. The
towas made on 17th May, 1873, the Saturday
pote Easter Term, but nothing was done, which
l»y was not accounted for, until 2nd Septem-
', when defendant obtained a certificate from
the arbitrator as to the mistake made, and on
the 1 1th September obtained a summons in
chaniV)ers to enlarge the time for making the
award till the 1st October, and to remit the
award back to the arbitrator for reconsideration.
The summons Ir ving been enlarged till Michael-
mas Term, and heard before the full court : —
Held, that the application was not too late, and
tlie rule was made tdjsolute. ('niiiiorr. Mr-
Coniiar/:, 23('. P. 271.
Sec /{of-i V. ('iir/i(irii/i(i}i u/' liriifc, 21 ('. P.
.■)48, p. lOl.
\'II. SiviriNi; A.-iiii: AND Stavini; PnocKr.inxaH
ON Award.
1. Fdv Mlciiiuhirt nf Arliiiratarx or Parties.
(a) III takiiifj or rcjertiiiij Eriiknci'.
Where tlie plaintiff '.s attorney had attended a
meeting of arbitrators, the court refused to set
aside the award, Ijccauso the plaintiff' hail not
attended to give his evidence according to the
provision in the rule of reference, from the mis-
carriage of a notice sent to him by his attorney,
and although the a«ard iirocceded principally
upon the evidence of (K-findant. MrDowjuU v.
('(iiii/i, Tay. 87.
An award set ,a.-iidc for unfair conduct of the
arbitrators in the manner of hearing the evi-
I deuce, //niiiillnii v. I\"il.-:tiii, 4 (>. S. l(j.
I .\n aw.ird .set Uhidc for irregularity of the ar-
bitrators, sucli a.s tlie examination of witnesses
in tlie absence of the parties, will be set aside
without co.sts. Caiii/ihi l/v. lioiil/oii, 1 Q. B. 407.
— P. C, — Jones.
Where after the arbitrators had commenced
their investigation, both plaintifi' and his attor-
ney re(piested delay, and iinderstooil that it had
been granted, but the arbitrators awarded in
favour of defendant without giving further time,
and without hearing all the tesi imoiiy that the
plaintiff might have offered — the a« ard was set
aside without costs. Gri^dalf v. Boulton, I
Q. B. 407.— P. f. -Jonej.
Where the arbitrators refused to examine wit-
nesses, the aivard was set aside, although before
the submission \vas signed the arbitrators in-
formed the parties that tliey would not allow
either of them, or their attorneys or agents, to be
present at their investigatiou.s. /?; ?-e McMiiUen
and Taijlaj, 'HI P.. 173. -P. L'.— Jones.
When arbitrator.! without consent e.xamined
an interested witness), and afterwards awarded
in favour of the party calling him, the award
was set a:iidi.'. Durii'x. BinUill, 2 Q. B. 19'J.
Arbitrator:j rcfuiing to give time to produce
testimony cannot hiupport their a\\ ard by shew-
ing that such tostiniony could have been of no
service. Jn ,:■ Itidt v. t'.ulL (J (,». 15. 3c'7. — P. C.
- McLean.
Held, no objection to an award by three arbi-
tratois, but which niigiit hivi' been made by any
two, that one arliitr.itor aluiie examined a wit-
ness without iiulice to the opposite party, it
being sworn tli.it tlie other two arbitr.iturs were
totally ignorant of such evidence when they
made the awai'd. lioykx. Jfiiniphni/, 1 P. R. 137.
P. C— McLean.
159
ARBITRATION AND AWARD.
ICO
Wliere counsel hotl agreed to submit their
views on a le^al point in the case to the arbi-
trators in writing, and the arbitrators decided
without waiting to hear from them, the award
was set aside. Pe.rletx. PerkI, 15 Q. H. lOo.
Where, after an arbitration was closed, the
agent of one party sent letters to two of the
arbitrators, containing statements and arguments
in favour of his principal, which the other party
did not see, the award was set aside. Williams
V. Roblin, 2 P. R. 234.— P. C— Richards.
Where a witness was examined in the absence
of defendant the award was set aside. McXulti/
V. Jobson, Johson v. MrNiilty, 2 P. R. 119.—
P. C— Burns.
Though the arbitrator stated that the evidence
thus given had in no way influenced Jiis decision.
WcUersv. Daly, 2 P. R. 202.— P. C. —Burns.
Where the umpire chosen upon a reference to
arbitration had allowed an affidavit to be used
in evidence ; but remarked, when it was read,
that he would not attach any weight to it, and
swore that in adjudicating upon the matters in
diflFerence he did not take such affidavit as evi-
dence, or attach any weight whatever thereto,
the award, notwithstanding, was set aside, but,
under the circumstances, without costs. Mr-
Edward v. Gordon, 12 Chy. 333.
Where an order of reference by consent pro-
vided that the arbitrator ' ' shall have power to
examine the parties and their witnesses iv m
oath or affirmation " it was held that he had no
discretion to reject the evidence of one of the
parties on his own behalf. Littler v. Ham, 1
L. J. N. S. 298.— P. C— A. Wilson.
The decision of an arbitrator being binding on
the parties in matters of law as well as in fact,
an awiird will not be set aside because letters
ore put in as evidence by one of the parties
which are not legal evidence, if the circum-
stances and the conduct of the arbitrators are
consistent with the supposition that they only
read the letters for the purpose of judging of
their admissibility aa evidence, and it does not
appear that they actually received them as evi-
dence. HotchkisH v. Hall, 5 P. R. 423. -P. C.
— Gwynne.
Where a witness for one party is examined
in the absence of and without notice to the
other party, the award will be set aside. Hirk-
■maii V. Lawson, 8 Chy. 38C.
Where two arbitrators took the evidence of
B. in the absence of the plaintiff and of the
other arbitrator, by which evidence it appeared
the two were influenced in their award : — Held,
that the award was invalid. Jh.
Wiere at the commencement of a reference,
k. , the arbitrator for one side conferred privately
with the parties who nominated him on the mat-
ters in question, and on the evidence to be offer-
ed, and continued this course to the end : —
Held, that the impropriety was not cured
by shewing that after the reference had made
•ome progress, the other arbitrator acted with
similar irregubrity on the other side. The
reference was to two, with power to thorn to
appoint an umpire, who was to award if they
disagreed. An umpire was appointed, and made
an award :— Held, that the irregularity of L's
course in holding private conferences with one
of the parties was suflicient to avoid the award
of the umpire. After the two arbitrators had
Hnally differed, the umpire had a private conver-
sation on the subject of the reference witli tin
arbitrator L. , in the absence of the other arbitra-
tor and of the parties : — Held, that as L. had
acted as the agent for one side, private conversii-
tion with him was as injurious and objectionable
as private conversation with the principals
would have been. lie Lawion and IIufchiiiHon
19 Chy. 84.
The court allowed the party prejudiced, to
serve a suplemeutary notice embodying the ob-
jections as to the course of the umpire and arbi-
trator L. , the same having come to light on cross-
examination, and tliere being strong reason for
apprehending that the award was not a fair
award. Ih.
HeeStockimj v. Crooks, Tay. 492, p. 125 ; ,S7(i((-
v. McEathrun, 3 Q. B. 184, p. 125 ; Hall v
WiUon, 7 C. P. 272, p. 150 ; L Manlf,/ ,,«,;
Anderson, 2 P. U. 354, p. 15C.
(b) Other Irreyularities.
Where, on a reference by A. and B., A.'
agent attended, and after B. had given evidence I
to the amount of £200, retired, understanding
from the arbitrators that the case was closed ;
and B. , in his absence, induced two of the |
arbitrators to award him £1000, the third refus-
ing to consent — the award was set aside on pay-
ment of costs. VanEqmond v. Jones, 4 0. S.
119.
Action on an award of compensation to plain \
tiff under the Railway Act, for injuriousl)
affecting his land. Plea, that the award ivas
procured by fraud and misrepresentation.. Tliel
land in question was situate upon a naviga-
ble river, running down to high water mark,!
and defendants' railway was built upon cribs in
the river, cutting him off from access to tlie|
water, which was tiie injury complained of.j
The jury were directed, that ii the plaintiff con-,
tended before the arbitrators that by law anill
under his deed he had such an exclusive righlj
to the water in front of his land as would entitlel
him to damages, when he had not, this wA
evidence of fraud under the plea : — Held, il
misdirection, for no argument used by the plain-j
tiff to enhance his claim or place his case in th«
best light, could \>q a fraud. Widder v. m
Buffalo and Huron ]i. W. Co., 24 Q. B, 520i
in appeal, 27 Q. B. 425.
On applications to set aside awards for ni'sl
conduct of an arbitrator, the facts relied upo^
to establish charges of partiality and unfai ^
ness on his part must be clearly averred. Qua;r«
as to t.<e right on such application to
cause on the last day of term. In re llutdSi
and Hall, 7 L. J. N. S, 320. -P. C. (!wynne.|
A charge of corruption and partiality against al
arbitrator must be sustained by specific, not I
general affidavits. liurr v. iktmbk, 4 (Jliy. (J'2l
Where the defendant made a reuresentatia
to the arbitrators which Wiis to influence tlief
conduct, but suppressed a material fact, t|
court set aside the award. Hickman v. Laicfo
8 Chy. 38G.
On a submission to arbitration of a cause i
all matters in difference therein, subject I
such points of law n
the pleadings and evi
to the sufficiency to 1
certain evidence tend(
work done outside of
into between the pa
instead of reserving t
court, themselves (feci
quite suflicient, merulj
objections were. Tht
observations on the fl
plain duty under the
refer the matter back
.simply set aside their
found by them in favo
V. The Corporation of 1
Murphy v. Cotton, J4 Q
)V1iere the legal riglit
award disregards them
uiequahty and partiali
Chy. 363. ^
Tlie reference was tc
power to them to appoin
make an award if the tw
Uas accordingly appointf
ditfermg the umpire m-
that each party was ent
ment of the two arbitral
I difference as a condition p
authority coming into fori
jatoent in the appoint
J and that one of the arbit
I conferences with one of th
Ito avoid the award of th(
JMV. Hutchinson, 19 Chy
A mistake in the calcu
teld no objection. Pr;,>
ray. 451. '^"
,«;here a plaintiff, having
ne;n a representative char;
tisown right, referred botJ
wre to award by a certaii
Jnpirem writing, and the;
le.to agree appointed, bu
Jipire, who made an awj
-stors adopted and publishe
rie tune limited for'^makS
Ksnd awarded thereby
l^e plaintiff m his repress
i^l''^ °» «ffiJavits of th
totiffin his own right, ref
■«on-paymentofthesuma
Jds on motion, set the awa
Jemistake, and because^
.ow own award. Dennk
r '^' ^ — -Hagerman.
BeW, that a mistake in the i
■"^r/^f the parties is ^
^rd for a certain sun,,,
W be entered for the sa
J'«um,isgoodforthesm^
f*„«,T. T. 3&4Vict-
P^«feall mattera in diffe,
"7 have been referred
;tef,eeofit.ltiu'
'""glitmayseem that the
IGI
ARBITRATION AND AWARD.
162
such points of law as should properly arise on
the pleadings and evidence, a question arose as
to the sufficiency to bind one of the parties of
certain evidence tendered respecting some extra
work done outside of the sealed contract entered
into between the parties, and the arbitrators,
instead of reserving tliis for the opinion of the
court, themselves decided that the evidence was
(luite'sufficient, merely reporting what the legal
objections were. The court, with very strong
observations on the flagrant disregard of their
ulain duty under the submission, refused to
refer the matter back to tlie arbitrators, but
simply set aside their award and the verdict
fuund by them in favour of the plaintiff. R088
V The Corporation of Bruce, 21 U. P. 548. .See
iluriihy v. Cotton, 14 Q. B. 42G.
Wliere the legal rights are rot hai'sli, but the
award disregards them entirely, it is void for
inequality and partiality. Jekyll v. Wade, 8
Chy. 363.
The reference was to two arbitrators with
power to them to appoint an umpire, who was to
make an award if the two disagreed ; an umpire
was accordingly appointed ; and the arbitrators
1 differing the umpire made an award : — Held,
that each party was entitled to the free judg-
ment of the two arbitrators on the matters in
difference as a condition precedent to the umpires
authority coming into force, as well as their free
judgment in the appointment of the umpire ;
and that one of the arbitrators holding private
I conferences with one of the parties was sufficient
Ito avoid the award of the umpire. In re Law-
\m\. Hutchinson, 19 Chy. 84.
2. For Mistake or Repugnancy.
k mistake in the calculation of interest was
leld no objection. Priestman v. McDougal.
Tay. 451.
Where a plaintiff, having two actions pending,
lone in a representative character and the other ni
sown right, referred both to arbitrators, who
jirete to award by a certain day, or appoint an
ipire in writing, and the arbitrators not being
kble to agree appointed, but not by writing, an
mpire, who made an award, which the arbi-
rttors adopted and published as their own before
Jhe time limited for making the award had ex-
tored, and awarded thereby a sum of money to
The plaintiff in his representative character —
pe court, on affidavits of the umpire and of the
ubitrators, that the money was intended for the
' stiff in his own right, refused an attachment
kmon-payment of the sum awarded ; and after-
B on m6tion, set the award aside on account
f the mistake, and because it was not the arbi-
ittow' own award. Dennison v. Sandford, 3
IS. 379 ; See /« re Caykyd: McMullen, 3 Q. B.
|2l-P. C— Hagerman.
, that a mistake in the initial letters of the
me of one of the parties is not fatal ; and that
> award for a certain sum, and that a verdict
Wd be entered for the said sum, naming a
peum, is good for the smaller one. Charles
khon, T. T. 3& 4 Vict. —P. C— Macaulay.
I Where all matters in difference in law and
»ity have been referred, and the award is
il on the face of it, it will not be set aside,
kugh it may seem that the arbitrators have
U
mistaken the law, and the amount awarded is
large. Hall v. Ferguson, 4 0. S. 392.
An award will not be set aside for a mistake
in law on the part of the arbitrators, not appar-
ent upon the face of the award. The Municioal
Corporation of Kingston v. Day, 1 P. 11. 142. —
P. C— Bums.
The rules aa to setting aside awards are the
same with respect to compulsoi-y references as to
others. The court, therefore, refused to interfere
on affidavits tending to shew th.-vt the arbitrator
was mis^'aken as to the law and fact. Sadler v.
Carruthfs, 20 Q. B. 560.
The alleged mistake in law and fact must
appear on tne face of the award, or be disclosed
by some contemporaneous writing. McDonald
v. McDonald, 7 L J. 297.— P. C— Hagarty.
In this respect there is no difference between
awards made on compulsory reference under the
C. L. P. Act and other awards. lb.
An award that defendant should pay the
plaintiff a certain sum, including the costs of the
reference, and afterwards directing that each
party should pay half the same costs, is bad for
repugnancy. Shaver v. Scott, 5 O. S. 575.
Where a verdict was taken for the plaintiff,
subject to a reference, and the arbitrator awarded
for defendant, but every\*'here styled the plain-
tiff "John," instead of "Patrick,"— the court
set the award aside and granted a new trial.
McManmon McEUerry, H. T. 6 Vict.
Declaration on a joint bond by defendants,
M. & 6.. to perform an award concerning all
differences between the plaintiff and defendants,
averring an award that M., one of the defen-
dants, was indebted to the plaintiff in a sum
named, and directing him to pay it by a certain
day. Plea, on equitable grounds, in substance,
that the only matter in dispute in the action,
besides the amount due by M. , was whether G.
was liable with him, and it was distinctly agreed
that in case the arbitrators should award for G.,
suca award should release him from all liability
on the bond : that instructions were given to
prepare an instrument to carry out said agree-
ment, but by mutual mistake it was not so
worded, and was executed without the error
being discovered ; and that upon the reference
the plaintiff abandoned all claim upon G., and
the arbitrators thereupon awarded as they did :
— Held, on demurrer, plea good. Oerrie v.
McDmell, 18 Q. B. 146.
The rules as to setting aside awards are un-
changed by the C. L. P. Act, and are the same
with respect to compulsory references as to others.
The court therefore refused to interfere on affida-
vits tending to shew that the arbitrator was mis-
taken as to the law and fact. Sautter v. Car-
ruthers, 20 Q. B. 560.
Held, that an award (in an action of replevin for
a promissory note) that declared the defendant
to have detained the note illegally, and at the
same time awarded that it should be delivered
up, upon payment of a certain sum, (which
amount was due thereon,) was not void for
inconsistency, as it effected substantial justice
between the parties. Lund v. Smith, 10 C. P.
443.
On a motion to set aside or refer back, it was
alleged that $122 had been twice charged against
;■, !. S"
: 1 ' ; I ■ • ii
103
ARBITRATION AND AWARD.
the plaiiitilV, being idontioal witli a juilgmoiit
also allow'od agaiimt him, and tlu- arbitrator
eertilioil that u< liiH opinion tliu nuittor shouhl bo
reopened, as he was not sure this was not the
case. It was objected also tliat the judgment
was improperly nllowed, having been recovered
against the plain "ifl" anil another, and therefore
not admissible as a set-off. In answer tliu mis-
take was denie(', and it was shewn that the iden-
tity of the two sums had been express^ •« dis-
pute before the arbitrator, and that the judgment
had been recovered on a note made by the plain-
tiff, and endorsed by another defendant in a suit
upon it for his accr)mmodation. It was sworn
also that the plaintitl' was insolvent. The appli-
cation was refused. Qua're, •whether under the
circumstances the judgment was not properly
allowed as a set-off. Liilla v. Wdlllirii/i/c, 3
r. 11. 157.— r. C'.~ Uichards.
An award, by mistake, instead of directing
that the plaintiff should pay his own and the
defendant's costs of the reference, except $12,
which the defendant should pay, directed that
the defendant should pay such costs, except the
S12, which the plaintiff was directed to pay.
The award was made on the 17th May, 1873,
the Saturday before Easter Term, but nothing
was done — which delay was not accounted for —
until 2nd September, when defendant obtained
a certificate from the arbitrator as to the mistake
made, and on tlie 1 1th September obtained a sum-
mons in Chambers to enlarge the time for mak-
ing the award till the 1st October, and to remit
the award back to the arbitrators for reconsider-
ation. The summons having been enlarged till
Michaelmas Term, and heard before the full
court : — Held, that the application was not too
late, and the rule was made absolute. Connor
V. McCornmck; 23 C. P. 271.
The court will relieve against an award made
between partners in ignorance, on the part of the
arbitrators, and of the remaining partners, that
important transactions had not been entered by
the other, the managing partner, in the books
of the lirm, in consequence of which omission
the award had been to a corresponding amount
too favourable to such managing partner. An
injunction to restrain proceedings on a judgment
recovered at law upon an award alleged to have
been made under tliese circumstances was con-
tinued to the hearing, in a case in which the
ultimate success of the plaintiffs at the hearing
was not considered as wholly free from question,
the amount of the judgment being orilered into
court. Wihon v. Jiichanhu)}, 2 Chy. 448.
See VI. 9, p. 155.
u-^
3. On the Alerlls.
Although the court are bound not to set aside
an award on the merits, yet they will interfere
when they see that either party has not had an
opportunity of explaining or examining into the
whole matter submitted. ^}iiall v. Jioqerd, H.
T. 4 Vict.
The court will not enquire into the grounds
on which an award is made even although it be
sugge^.ted that the arbitrators have opened a final
judgment of a competent court under a submis-
sion in the common fonu, if it doesTiot clearly
appear that they have reversed the judgment or
gone into its merits. McLevv v. Vandecar, 6
O. 8 481.
The court will not set aside an award iipo],
afiidavits setting forth a party's just claim to tin.
allowance of large sums of money, upon griminl,
which the arbitrators lia<l rejected. .)/(•.)/;//„„
V. McLean, 4 < ). S. 5.
The court will not sot aside an award ui>im an
affidavit of merits, except upon manifestly cluar
and stvong groun<ls. Srohe/I v. (Ulnioiir, 5 Q, U. 4^
Xor will they intend matter ; such niatUr
must be shewn atUrmatively. Trueei/ y, ii„i
(jext, 7 Q. B. 5. -P. C— Draper.
An award cannot be impugned for oxi;i.s.i]\,.
damages, on the affidavit of one of tlie aii.i
trators, giving no data or basis for calcidatioii t„
support his opinion against the majority. I,, ,■.
Great, Wentern It. n. Co. mid ( /imirin, I p
R. 288.— P. C — Draper.
Where parties to a protracted reference th(iU"li;
their case so strong that it would be impossiUt I
for the arbitrator to find against them, and ili,i |
not do all that it was in their power to <|(i t„
repel the ease of their ojjponent, relief against I
an adverse award was refused on the gi'numl ui
surprise and discovery of new evidence. .V, ivv,
v. t'ongrnre, 2 L. J. N. S. 11.- -P. C. -A. Wilsw,,
Wliere the arbitrator, having power to ameiiii I
the pleadings allowed a plea to be added, ami tk
parties affected, instead of applying to ha\ e tlii
reference revoked, proceeded with it notwitli-
standing the amendment, which they coi.tenilt,!
was improper and unjust, and applied for ivlitil
against the award on this ground, it was refustil. |
although the court thouglit on the materials
before it, if the same were before thf arbitratur. j
that the amendment ought not to have Ijeecl
allowed. So where the ariiitrator, having \tu\K I
to allow or disallow a claim set up by one uf the I
parties to the reference, in the 'ixercise ufiisl
judgment decided to allow iv, ond his motivt-
were unassailed, the court, though differing fruDi I
him as to the propriety of allowing tlio claim I
referred to, would not set aside the awaiilnal
the merits. ///.
An action upon a policy of insui-ance (jii gy,»l
was ordered to be referred, and the award was in |
favour of the plaintiff. The evidence and protveJ-i
ings, with the exhibits, were annexed, with ;
certificate signed by the arbitrator, dateil lltil
May, stating that he certified tlie same to eiif
able the defendants to move against his avanlf
if so advised. The main objection was tbtl
the arbitrator had found due notice and accoiiDtl
of the loss given, whereas it was dibproveiil
by the plaintiff's own evidence :— Held, tliitf
the objection being to the arbitrator's finding c
the evidence, was untenable unless miscoii.luct
could be inferred. Newman v. The Ninijm\
Mutual Fire Insurance Co., 25 Q. B. 435.
4. Practice.
(a) Time for Movinj.
Too late after four terms from the publicatioiij
and an attachment granted for non-perfornnaci
C'rookn V. Chisholm, 4. 0. S. 121.
Where a verdict has been taken, subject to j
reference, the aw-ard, unless under very peculiij
circumstances, must be moved against nithi
the first four days of the term after it wasmadij
Campbell v. Cameron, 1 Q. B. 29.
iTlie time for moving run<
Ifcmlant is notified of the
Vje, not from the makui-
adeiimlerarulcofreferenc
tnnd shewn, will not alw
[the strict rule of movin
r^' Oexterv. Fi/z(,ib/>on,
lamb.-Robmson.
Ia judge in chambers will r
■oceedings on an award, in
iy be made in term to set
P sworn to are conflictin
P" the award may be i
■chmibers be made within f,
•".Umaniotioninbancii
V^»iiili,i)l. .J. 212.— 0. L. C
pereacause an<l aU mat
|rereferred:-Heldthat ju
[entered until after the first
f^ following the award, and
J^^ant woul,r have the who"e
Vm, V. McPherson, 2 P
■lis. > - i.
fcthVH''^'",* was take,
[enthehrst jayof term.
P'tnatamotiononthelast
„; ,11*:
16 r
^^1
165
ARBITRATION AND AWARD.
Held, that an application to set aside a judg-
ent on an award, after a lapse of two years,
Wood V. Moorlie, 3 Q. B. 79.
I ment
1 was too late
The time given to move under 9 Vict. c. 37
I and 10 & 1 1 Vict, c, 24— viz. , one year — extends
to Upper Canada as well as Lower Canada. Com-
I wmoner of Puhlk WorH v. Dahj, 6 Q. B. 33.
An application was made during Easter Term
to set aside an award of the 9th December pre-
ceding, a term having elapsed after the making
of the award :— Held, too late. In re Matthews
land Webster, 1 P. R. 75.— P. C— McLean.
An award, under submission by bond, wa.i
Inade on the 31st of January, and a notice mailed
Ito the plaintiflF on that day, which was received
Ion the 2nd of February, the first day of Hilary
iTerm: — Held, that au .application in Easter
ITerm was too late. In re Gumming ami Oraham,
ll P. R. 122.— P. C— McLean.
An action of covenant was referred at nisi
prius, and on certain breaches asaicned a ver-
Jiot taken for specified sums, the damages on
lotjior breaches being reserved ; and as to two
b( the breaches particularly, a verdict was entered
lor £12.5, subject to the award. Tho rule of
[efcrencc required that the arbitrators should
leport ill or with their award the evidence and
jncts on which they should find the damages
Uvanlcd (if any) on either or both of these
freiches, so as to enable the court to determine
fhether such evidence and facts would in law
irarrant the damages. The arbitrators awarded
jages on each of these breaches, but omitted
J return the evidence or facts. A copy of the
{fidence only was found in court, not signed, or
pnexed to the award, or referred to in it ; and
ic facts did not otherwise appear :— Held, that
liiler the circumstances of the case and terms
[tho submission, the award might be moved
ijinst although the first term after it was made
' 1 expired. Murphy v. Cotton, 14 Q. B. 426.
Ilhc time for moving runs from tho time the
fefcmlant is notified of the award having been
jade, not from the making. And when it is
(le under a rule of reference, the court, on good
ic'jml shewn, will not always hold the party
I the strict rule of moving within the next
Dexter v. Fitzcjibbon, 4 L. J. 43.— C. L.
bamh.— Robinson.
Ia judge in chambers will not interfere to stay
xeedings on an award, in order that a motion
ky lie made in term to set it aside, when the
|ts sworn to are conflicting, and for all that
Mrs the award may be in accordance with
i facts proved. Qusere, should not such motion
Ichambers be made within four days after the
laril, as in a motion in banc in term ? Mc Lean/
mail, 5 h. J. 212.— C. L. Chamb.— Richards.
pviierc a cause and all matters in difference
i referred : — Held that judgment couhl not
H entered until after the first four days of the
m following the award, and, Semble, the de-
idant would have the whole term to move in.
piim V. McPherson, 2 P. R. 49.— P. C —
'lards.
Ifherc a verdict was taken, and an award
peon the first day of term, which defendant
me aware of on the following Monday ; —
, that a motion on the last day of term was
166
-P. C.
too late. Pn-hijv. Lofl.r, 2 P. R. 10').-
— Richards.
Held, that the undertaking set out in this
case, given on the last day of term, was a waiver
of any objection aa to time, so that tho motion
might be made in the following term. McXuIti)
V. Jnbmn—JohioH v. MrXult;/, 1 P. R. 119.— P.
C— Bu'-n3.
It would seem that a motion to set aside an
award in this court, must be made within the
common law term following the publication of
the award. Re. Tirjlor nnd BoMwkk, 1 Chy.
Chamb. .53.— Esten
(b) Affidaril.i and Pra-'tke.
Where there is no provi.iion in an order of
reference at nisi priua to mike it a rule of
court, the court will not set a.';ide the award.
Cumminij v. Alien, Tny. 205.
The court will refer to papora delivered by the
arbitrators simultaneously with the award, and
intended to 1)0 explanatory of it, as a part of
the award itself. Hall v. 'feri/uwn, 4 O. S. 392.
Where it was aworn that tho original was
in the possession of plaintifT's attorney, who
refused to give it n\>, a rule nisi was granted,
which was afterwards made absolute, on the
production and verification of copy of the award
served. Steen v. (I'his.-i, M. T. 1 Vict.
Fiict^ relied on to sot aside an award must be
diijtinutly sworn to, and if <lenied the denial is
conclusive. .Skie/c v. McKa'hron, 3 Q. B. 181. —
p, C— McLean.
.Semble, tint an ol)jecti(iii that two of the
arbitrators made the award without notice to the
third can be taken advant.ago of in an .action
on the award. The .application to set .aside an
award un<ler such circumstances should be made
to the court in which the action is pending.
Smith v. aeor<i<; 12 Q. B. 370.
Where the time for making an awanl expired
on the 1st of September, and the affidavit of
execution of the award was sworn on the 7th of
August, it w.as held sufficient, without st.ating
on what day the .award was executed. McPher-
xon V. Walker, 1 P. R. 30.
Held, that a copy of the affidavit need not be
served together with the award. lb.
The party on whose motion an order of refer-
ence li.as been m.ade a rule of court cannot, in
opposing au application to set aside the award,
object tliat the cause is improperly styled in
such rule. Creiijhton v. Brenrn, 1 P. R. 331.—
C. L. Ch.amb. — Richards.
When a rule nisi is obtained before the last
day of the term in which .au .award must be
moved against, the court m.ay allow additional
.affid.avits to be filed .after that d.ay. /n re Wheeler
and Murphy., 2 P. R. .32. -P. C. -McLean.
«»\s a general nde, each deponent should state
in his own atfida\'it the facts to which he swears,
not by reference to the st.atements in other afti-
davits filed, fn re Campbell and Brown, 2 P.
R. 29L— P. C— Richards.
An action upon a policy of insurance on goods,
w.as referred by a compulsoiy reference. On
motion to set .aside the .award, the evidence and
t'
^-i
'6 ■■•
,!i r^i"
.1 ll
■i' >,^
;:ii:
107
ARBITRATION AND AWARD.
108
169
11
It; i '
procecdingB, witli tlio exhibits, were annexed,
with ft cortiticate HiKnoil by the arbitrator,
dated llth May, ntating that he certified the
Hame to <mable the defendantn to move against
hid award if go adviHod :- -Semblo, that the cer-
tificate coulil not Ik5 looked at, as it was writ-
ten after the award. A'pinman v. The Siaijnra
DiMriel Mutnnl Fire Inmranct Co. , 25 Q. B. 433.
On application to set aside awards for miscon-
duct of arbitrators, the facts which are relied
upon to establish charges of partiality and un-
fairness on the part of an arbitrator must be
clearly averred. In ir UolrhkMn v. Hall, 5 P.
R. 423. -P. (".- Gwynnc.
Qufere, as to the right on such application to
show cauHC on the last day of term. Ih.
(c) Form of Hnk.
The rulo must be drawn up on "reading the
award;" and the alleged defects in the award
must be sufficiently pointed out. Grand Rimr
Navigation Co. v. McDongall, 1 Q. B. 255 ;
Wilklns V. Peck, 4 Q. B. 263.
A rule nisi, not drawn up "on reading the
award," is sufficient if among "the affidavits
and papers filed," on reading which the rule
was drawn up, there is a copy of the award
verified by ivflidavit. Trnrey v. ffodgenf, 7 Q.
B. 5.
A nde nisi was discharged with costs, because
not drawn up on reading the award or copy, nor
the submission, nor the rule making it a rule of
court. Jacobs v. RtUtan, 2 0, L, Chamb, 138.
— Sullivan.
,5. Other Cases.
The court refused to set aside an award on the
ground that the arbitrators had desired it not to
be delivered until the costs for making it were
paid. Oee v. Attioood, Tay. 119.
Where either party to an arbitration objects
to an irregularity in conducting it — as, for in-
stance, against a certain person administering
the oath to the witnesses — and takes his chance
of the award, he cannot afterwards, on the same
ground, impeach the award. Slack v. McEathron,
3 Q. B. 184.— P. C— McLean.
Where an action on the award is pending, an
application to set aside the award will be refused
if the grounds ciuld be urged as a defence under
the pleas. Smith v. George, 12 Q. B. 370.
All matters in difference in a cause and on a
building agreement between plaintiff and defend-
ant were referred, costs of the cause and of the
reference to abide the event. The award, after
disposing of the different issues in the plaintiff's
favour, assessed his damages, over and above his
costs and charges, at £52, and fixed the costs of
the reference and award at £20. The costs of
the suit were afterwards taxed without notiot
to defendant, and a demand made of the amount
awarded, the costs of the award as jixed by the
arbitrators, and the taxed costs : — Held, that
the want of notice of taxation was not a ground
for setting aside the award, but for withholding
the attachment until the costs could be revised.
Jones V. Reid, I P. R. 247.— P. 0.— Bums.
An award will not he set aside because the ntyle
of the cause in which it is intituled is not set mit
correctly and at length, provided it can be mitti-
ciently identified by reference to the body nf tht
awanl as being in the cause referred. Cri'Hihi,,,,
V. Brown, I I'. R. .331. Chanil). Richards.'
Awards uniler 9 Vict., c. 81, ss. 20 ami j;,
are final, and not subject to be set aside by the
court. In re Great We.ntt'rn If. H'. Co. v. Lhili\
-McLean.
B. has no authority to set
fence viewers made iiinlfr |
/« )v Ctiwemii and K'l
not I
Hall V,
1 P. R. 378. -P. ('.
The T'ourt of Q.
aside an award of
C. S. U. v., V. .')7.
25 Q. B. 633.
No appeal lies from the decision of the judgt
in Practice Court on an application to set aai'e
an award. Brown v. OnerhoU, 14 Q. B. 64.
Award held invalid for want of a proper
return of the evidence and facts as required hy
the rule of reference. Murphij v. Cotton, UQ
B. 426. Ross V. Corporation of Bruee, 2! ('
P. 548.
What objections are available aBain.<it an nwarii |
declared by stfvtute to be final. Krnnethi v
Burness, 15 Q. B. 473.
The fact of one of the arbitrators being i
creditor of one of the parties to the suit is not
sufficient to make an award invalid.
WlUon, 7 C. P. 272.
Under the special circumstances of thi.sc,i«e:
— Held, that although the suit at law referH I
was against the sureties only, it was compettntl
for the principals to move against the award iol
respect of it. In re Wheeler v. Muriihu H nl.
2 P. E, 32. —P. C— McLean.
Discovery of fresh evidence is no ground, unleal
it bo shewn satisfactorily why it was not beforel
obtained. Dean v. Peterborough and Cobomt
R. W. Co., 2 P. E. 79.— P. C— Burns.
The court refused either to set aside or refer
back for the discovery of new evidence. Lmt
V. Wallbrldge, 7 L. J. 207.— P. C— Rfchaniil
See Severn v. Cosgrave, 2 L. S. N. S. 11 ; .l/c|
Clain v. Maltland, 2 P. R. 279.
Held, that on the facta set out in this c.v
nothing appeared to support the award asto^
matter allesed to have been verbally submittw
but not included in the written reference. ^l/(ir|
tin V. Kergan, 2 P. R. 370.— P. C— Burns.
Upon a reference to determine the damaj
sustained by plaintiff by reason of th" takiL
and detention by defendant of a certain schoonea
the arbitrators awarded $2200.05, and mm
other items $40 for travelling and law eg
penses. Upon a motion to set aside the awarJ
the court, without admitting the legahty of t'
charge, refused to interfere, as the defendai
should have applied to revoke the submissioij
Carveth v. Fortune, 12 C. P. 504.
The inability of a company awarded againj
under their charter to expend their funds
paying the award, would be no ground
setting it aside. In re Corporation of the. Tc
Barrle v. Northern R. W. Co., 22 Q. B. 25.
Where a reference was specific of accounts r
dered up to Slst December, 1864, and the awij
went far beyond this, the court, upon the apJ
cation of the person against whom the award r
m«(.e. denying any bii
fend the reference, f
Kwercd, set aside the
Lnrinifr, 2 I,. ,/. ,\. S.
It in no (d)jecti()n to
award, that the award
of court. In rr / ,n
Chy. 84.
^■f^. TiNRn
I. .\hik-iil;i .4,r„,
Where a case has be
made, such award must
order of the court befoi
cause can lie inarle II
' ,1 Cliy. 290.
An award niado in i
I hy the court will l,o t
I and made an order of t
I course. It is not necess
I term before inovinc to m
\ Allan V. O'Nea/, § (?J,7
iSicrtlari/,
An application to make
lean properly be made ir
I nie V. Kcrbi/, 2 Chy.
IStmlari/.
2. Bi/ Altachmcn
(a) Prat
. The rule will not be
■utance, although the n
looiinsel. Stetoart v. Craiv
I To obtain an attachmen
^ «ward, the affidavit si
Jerson making the demand
tl J^'^ purpose, am
P™/''^ flemancf was ma.
pw//v. McMartin, Dra.
To bring a party into con
Mney awar(fed, the origi
•F« should be shewn %
!TOl. Kent V. Sumner, T,
It must appe.xr distinctly
ledemand was not made tr
(tifarlm, E. T. 6 W^ll T
hrlin, 5 0. S. 143.
JVhere the award is maue
Mt be shewn how he was
pointment must be in wri
Underhp, E. T. 3 Vict.
l«Tierethcre was nothing to
^except the umpire actin
^watfcwhmentwasdischarfi
scourt refused to reserve le
: renew the application ne
^ever, whether he would
■lA-P, C— Draper.
Jeaffidavit must deny pa>
l^e um^lemanded^ 4'
"• 1- <-•— Macaula
|«ienuant, as it is an affid
I'tt^chment has been orden
169
ARBITRATION AND AWARD.
170
m«i.e, denying nny l>inilinu; ftiith»>ritv to thus ex-
tenil the reference, and liis nath lH'inj» unnn-
swercd, set aside the award. In n Unix rln v.
Immn, 2 L .). N. S. II.- P. ('. •Hft;,'arty.
It in no objection to a motion to Net iv«ido an
award, that the award has been made an order
of court. In rr Liiirn(iii ond ffulrhiimtii, 19
Chy. 84.
NIII. KSKORCINO AWARP.
I. MiiH-iiiij Aii'iinl a liiih of Cinirt.
Where a case has been referred and an award j
made, such award must in all cases be made an I
(ircler of the court before any other order in the I
I (mue can be made. Wiiiliimrfh v. McI)ou<i<iU, j
i,^ Chy. 290. j
An award made in pursuance of a reference
I hv the court will be treated as a judicial act, i
and made an order of this court as a matter of
1 course. It is not necessary to wait until after a
I terra before moving to make it an older of court.
h/fefl V. O'Neal, § Chy. Chamb. 452. —Taylor,
An application to make an award a rule of court
lean properly be made in chambers on notice.
J mie V. Kcrbij, 2 Chy. Chamb. 452. —Taylor,
I. Dij Attachment and Order.
(a) Practiee.
The rule will not be absolute in the first
Instance, although the party consents by his
[counsel. Stewart v. Crawford, Tay. 409.
To obtain an attachment for nonpayment of
1 award, the affidavit should shew that the
lenon making the demand has a power of attor-
iey for that purpose, and that the party on
jrhom the demand was made was apprised of it.
V. McMartin, Dra. 169.
i To bring a party into contempt for not paying
ioney awarded, the original rule and other
should be shewn when the copies arc
fcfved. Kent v. Sumner, T. T. 11 Geo. IV.
lltmMst appe.xr distinctly by the affidavit that
ke demand was not made too soon. Baines v.
IfcJfartin, E. T. 6 Will. IV. ; Barnes v. Mc-
fcrtiii, 5 0. S. 143.
I flTiere the award is made by an umpire, it
1st be shewn how he was appointed, and his
bpointment must be in writing. Cai-pentcr v.
kuderlip, E. T. 3 Vict.
rVhere there was nothing to shew such appoint-
Wexcept the umpire acting as such, a rule nisi
ranattachmentwas discharged, with costs; and
e court refused to reserve leave to the plaintiflfs
j renew the application next term. Quaere,
pever, whether he would be prevented from
'i application. Reynohh v. Burkhart, 1 P.
J213.-P. C— Draper.
iThe affidavit must deny payment of any part
I the sura demanded. Masecar v. Chambers,
I.R171.-P. C— Macaulay.
An affidavit denying service of an award must
j intituled in the cause, and not "The Queen
iDefeudant," as it is an affidavit made before
1 attachment has been ordered. If the affida-
vit, however, contain a good answer upon the
merits, the party will have leave to swear to an
amended afndavit. llentlirr* v. Wanlmnii, 4 Q.
B. 173. V. ('.Macaulay.
The affidavit of execution of tlio award must
Hhew tliat it wa.s cxecuteil within the time
liinite<l by the Hu)miiH8i(m. Hi.
The allocatur in this case was held not ob-
jectionable as improperly embracing a mniety of
the costs of reference. //>.
In an application for an att.ichment for the
nonpayment of money awarded, the submission
being by bond, the rule nisi was intituled "in
the matter of A. r. B." The atlidavit of service
was intituled in the same way. The rule mak-
ing the submission by boml a rule of this court,
was intituled in this court, "A. r. B. " The affi-
davit of the execution of thcawanl was intituled
in this court only :— Hehl, that the intituling
of the rule nisi and the affidavit of service thereof
was correct : — Held, also, that there was no
material variance between the intituling of the
rule nisi and the other previous papers, /n re
Berk-ett v. Cotton, 5Q. B. 271. -P. C.— Macaulay.
The original award must be brought into
court, and the rule for attachment drawn up
upon reading it : — .Semble, that such rule may
be granted on shewing service of a copy of the
award, with the demand of performance ; the
original having before been shewn to defendant.
McLean w. Kemr, 1 P. R. 125. -P C. -Burns.
The rule for an attachment for non-payment
of an award, is properly a four not a six day
rule. Jonesv.Beu/, IP. R. 247.— P. C.--Bum8.
All matters in difference in a cause and on a
building agreement between plaintiff and defen-
dant, were referred, costs of the cause and of
the reference to abide the event. The award,
after disposing of the different issues in plain-
tiff's favour, assessed his damages over and
above his costs and charges at £52, and fixed the
costs of the reference and award at £20. The
costs of the suit were afterwards taxed without
notice to defendant, and a demand made of the
amount awarded, the costs of the award as fixed
by the arbitrators, and the taxed costs : — Held,
that the want of notice of taxation was not a
ground for setting aside the award, but for with-
holding the attachment until the costs could be
revised : that the demand upon which the attach-
ment was moved for, though too large, in includ-
ing the costs of the award, was good as to the
rest, each sum having been separately demanded.
The rule for attachment was therefore mode ab JO-
lute, but the writ was ordered to lie in the office a
month, to enable the defendant to get the costs
of the suit and award taxed, and make pay-
ment, lb.
A rule nisi for attachment, drawn up "upon
reading the rule of court, award, allocatur, and
papers filed in this cause " is insufficient ; the
affidavits filed, and necessary to bring the party
into contempt, should be specifically referred to.
Dickey v. Mulholland, 2 P. R. 169.— P. C —
Hagarty.
When a rule nisi on the face of it refers to
papers and affidavits filed, this is sufficient in
ordinary cases ; but in applications touching
awards, and in proceedings to bring a person
I'nt
liMMr^
■ , i.
■A
^■p
171
ARBITRATION AND AWARD.
17:'
\'
I
'«!
i
■
i:
i ■ :
i * ■,■
H:
into oontempt, thu paiticiilar inateriala moved
upon RhoiiM lie speciHcil. /ffukvUi v. Wnnl, 17
('. I'. (>ti7.
A power of .ittonuy I'lom oiif nf (liiee dcfeii-
flants to (kmaiiil th(! cnnU is millioicnt, payment
to one being paynn'nt to all. S/iipnuni v. Ship-
mo,,, 2 P. K. .'J!)3. -I'. *'. -McLean.
Semlile, that the court, when nnphcil to luuler
('. S. U. (!. c. '2i, H. 19, for a nilc to p.iy over
money awanleil, will exorcise the Hamo discretion
(iH formerly on motion for attachment, for which
this remedy is now sulistitutcd. Watson v.
Gnrrell, .1 P. R. 70.-0. [,. nhamb. -Richard?!.
To olitain execution iiiiltr that nection it
is not fturticient to make the mtljmiH.sion a
rule of court. The defaulter must be called
upon to iihew cause why he Hhoulil not pay,
!ipecifyinj{ the sum, ami a rule absolute f>b-
tainc(l. lie Tlio„i(is (mil l>,-iiiiki\ W P. It. 78 ;
yimim-ii nnii Drh-nit li'wi ,:■< //. IT. ('<<. v. liiick-
ii'df, .1 P. R. 82. - P. ('. Ilich.'uds.
The award directed payntont of a .-lum by
monthly insitaliucnt«, with a pniviKo that im
default in any of them th(' wliole .should fall
due. Qua>re, whether the court would order
payment of the whole sunt, utdes.H it wero tihewn
that defendant had notice of the award before
default. Xtiiii(i,-ii <i,ii/ l>it,-uit Hii'i ,-H /'. ir. Ca.
V. Uucku-i'll, ;{■ I'. 15. 82. P. C. liichard^.
To enforce performance of an award, the proper
mode is to servo an order that the jiarty do
within a time therein to bo limited perform the
award ; which order must be endorsed with the
notice required by the 4(!th of the orders of
1853. An attachment is.sued for non-pcrforni-
anee of an award, when no such order had )»ccn
served, was set aside with costs ; although an
order making the award an order of <'ourt with
f,ueh notice <'ndorsed, had been duly served.
Wilson V. Switv:,; 1 Chy. ( 'liamb. 44, — Ksten.
(b) Other Cii. ■«.■!.
'Wlierc executors submitted to aibitration,
%vith a proviso that it should not bo taken as an
admission of assets, and the arliitrator.s awarded
that they slumld pay a certain sum, without
stating that they had assets, a rule for anattaeh-
mcnt against them for non-payment was refused.
(lilkrt V. Simpson, M. T. 7 Vict. — Jones.
An attachment will be ordered against a i)arty
who Hies a bill in e(juity, contrary to his under-
taking in a rule of refereiK-e, and in disregard of
a rule of court made thereon. .)f(tnn('rs v. Clarke,
1 Q. R. 101.
The court will enforce pcrforuianue of an
award by attachment, though it extends to the
delivery of possession of land. McPhc'son v.
Walkvr, 1 P. R. 30. ^P. C— Draper.
An attachment will not be granted where a
new arrangement has 1)een made between the
parties, subsequent to the award ; but the suc-
cessful party will bu left to his action on the
award. Thompson v. Marklcn, 1 I'. R. 293. —
P. C. — Draper.
A party intending to attach, should j)roceed
with reasonable dilligence. JJcj-tar o. Fifztjibbon,
4 L. J. 43.— C. L. CTiamb.— Robinson.
Where an award iti vague, and defendants
nwear that it is imposaibk to comply with it,
owing to thf! uncertainty, an attachment will h^
refused. /„ ir Mnnhi/ v. Anderson, 2 P H. I()i;
-P. ('. -McLean.
The execution by defeiulant of an a.H.iigniiii>ii>
in trust for his creditors, by whii^h the plaintiff
is to l)c tirst paid, and the acceptance of ru'Ii
assignment by plaintiff, is no answer to an appji.
cation for attachment on an award previonalv
made for the same debt. MrKi'ndcv. .\fi-l\iii,^
2 P. R. 157. -P. C- Burns.
Where the costs of the cause were to alml-
the event, but no authority was given to direct
a verdict, and the award was silent as to cnats :
—Hold, that attachment was the proper rcnicily
for their recovery. Shipjnnnv. Shipmi,,,, 2 I', |;
39.T -P. ('. -.McLean.
The award in this case ordered certain Kciiiri.
ties to be assigned to a trustee, who was to rlii.
pose of them, and out of the proceed.^ pny j
certain sum to the applicant : — Semtile, imt an
award on which an order to jiay wouM he
f ranted. lie Thomas n,iil Jii'oukr, 2 P. 1!. "8. -
'. (,'.— Richardn.
This court has jiiri.siliction to carry out tli»
terms of an award which directs the paynifiit
of money, although the reference contained tv, \
submission to p.ay, where the reference has Imn
made an order of the court, and will in .sncli a j
case ordei' .'i reference to the master, and nn
oblige the jarty to sue at law. Ar,nsli'iiiiii\\
Ciii/tii/, 2 (-'liy. Chamb. 163. — Vanlvoughnot,
3. Knttrin;/ Jiitli/mcif.
WIk^ic a cause was referred on a vc'rdict takn |
by t'onsent, and the award made in vacition,
linal judgment entered before the next ttm I
was held to be irregular. Vlnrmt v. MfLmi,
Dra. 108.
A plaintirt' who takes a \erdict subject (diI
reference, but does not proceed to an arbitratii'c, [
owing partly to the fault of the arbitratun', I
partly to the delay of the defomlant, (Miiiuij
enter judgment on the verdict witlidut liwl
applying to the court. Afott v. Limrhi, T. T, f
1 & 2 Vict.
And the court will not allow such jii(l)^iiiinll
to be entered, (tould v. Fri'cman, 3 i.^. I>. 21(1 1
Where on a reference at nisiprius, a venlii'tiii
taken subject to the award, and thu cause ciiilvb
referred, and an award made, judgment may It j
entered after the first four days of the .succectlf
ing term. But when matters not inchulcil in|
the cause arc referred, judgment cannot Wl
entered until after the next succeeding term f
Itaivke, V. Dtir/gan, 5 Q. B. 636.— P. C— T)ra]icrl
Where a cause "and all matters in difleroiicc"!
were referred : — Held, that judgment coulil initj
be entered until after the first four days of IheJ
term following the award : and Semble, tkel
defendant would have the whole term to iimvC
in. Williams v. McPherson, 2 P. R. 49.-1'. CI
— Richards.
A verdict was taken at the autumn iw^izwl
subject to an award, which was made in MjJ
following, and the plaintitt', without waiting
until after the fourtn day of the next ter
17.1
iinini'diatelv entored
llilil, rcgiifiir. l.,i„i-\
I'. ('. ihini.'..
WUvto a verdict in
iiiadi' until after the
in'i'il nut «;iit to enter
llic liiHt four day.s nC
I .iHai'ii. Itlmiiliiiril v.
'^(■iiiMe, tli;it iiiiijei' t!
I Mil jui' leiit could I
a».iiileil, without aiii
.l/iii-y//// V. ( '(ill,,,,, I f (J
UJRiv a plaintili; in
lis ilit'M alter tli(. 11 wan I
I till' .-■nit does not aliati
|(Nti'i<il under the 17 ('
Itiiin, liinveyer, can is.siie i
lixtrutDr without reviving
. /I'/v/'v, I,', {). U. |,s7.
Willie a verdiet was
lliiaik' (111 tlio first day oi
Iwhiili jiidginent was on
Itnii ; Held, imt too hu
An application U, t^,
Ifi'iimlod on a vonliot wh
lliLmitilt' subject to arofert
Mi;ilj,TOeiit having been
|ex|)iratioii of four days
nikiiit; the award, was
lli-i,l,l,/(,ri/, 2 L, ,)
Hiigarty. '
■(iiilgineiit may be ontd
pit' on a reference at nisi
ukiry clauses of tlio C. h
linlit't has been U,\ m, v^•i
Tiriiiwly roipiii'ud in tli'o c(
Ir iioniiayiiient of the am
fikr for leave to enter sii
fccessary. JfcXeil v. /,„„./,,
K. LCIiamb.— A. Wiisoi
U ('ounty Court and a ]
IJ all disputes were refer
joney awarded, to be i>aiii
Ijs' notice of the award
Vveil mwn the attorney wl
I the arbitration, but wlio d
BitiHise to represent him
m, that the ser\-ice ^vas
li*v. Puller, 4P. K. (jj -^
4. Hi/ Acfiu)
(a) Pleadbui
NMtioi, of husband and
*«ttle the allowance in lieu
Ponon submission bond ■
f*il^'.>iteijman, Tay. 498.
£? °" ''^^'''•J that defej
Wtfl£149onadaymentioi
■nffshoulddeliverupaho
I on the same day i—HeU
Knt acts, and that the p
Nmess to perform hia part
k it ia sufficient to aver rea
r^w, and where to a plea
u^
17.T
ARBITRATION AND AWARD.
174
,i,i,),.(lintc'lv riiti'icMl u]) juilgiiu'iit tliiToon :-
iv>,ni(iir. /.(iiirii v. l!ii!Hill, I I'. I{. .'III.
Illll'l>:<.
I'. «'.
Wlivi'u II vi'i'ilict in tiikt'ii aixl tlui awunl imt
iii'iilo until iifttT tlio iiixt tt'iiii, till! iplniutitr
H 111 lint «!lit tcl I'lltcr IliM jllllt,'llU'llt until llt'tt'l'
the lii'nt four (liiyM lit' tliu tui'lii IcilliiNviiig tlic
;,„,uvl. ni'iiirliiiril V. Si,!,ln; 'JH l.i. 15. '.'10.
Siiiilili', tli;it iiiiilir t!i(' Hiiliiiiissiiiii in tliis imsu
1 ii'iit iiiiiiil 111,' I'liliTi'd ii|i fur tlio Huni
to till'
iiirt.
i« inl'''li without iii)]ilic;itioii
';,'„•/,/,;/ V. Cn/t,,,,, I4(.>. It. fjd.
Wliri'o ii idaiiitill, ill wIiomo favour :iii iiwiinl
,. ilii's after tin? iiward, l(ut liofoiv jiulgiiit'iit,
\\\k Miit ilocs not aliatc, lint judginciit may lie
,i,t,iiil uiKk'r tlic 17 <'ar. II. c. H. No oxi.'i'ii-
Itii'ii, liiiwivfi', can iHsuu in tliu iiaiiif of iplaiiilill's
l.Aivutor without reviving till' juil^'iiii'iit. Pmrlur
\,..l,urh, ir><^ 15. I ST.
Willie a venliet wan taken, ainl an award
iiiNiile (111 till! lirst day of the term following, on
Iwliicli jiulgnielit wa.s entered soon after that
ItiHii: ^''•''''' ""^ *"" >*"""■ /''•
All iipiilieatioii to set aside a judgment,
lli.iimleil on u verdict wliieh was taken for the
IliUiii''" ""''.i'-''^'' to a reference to arbitration, the
niiilLnneiit having been entered up before the
Liiiratiou of four day.s
xiiiratiou oi loiir iia^.i HUceeudiiig the day of
mkiiiL' the award, was refused. ViiiiXoriiKtn
Hagarty.
Jiiili,niieiit may bo eiitei i^ 'fiou an award
fcailu mi a reference at nisi jirius under the ci m-
ilMiry uhui.ses of tl'<' C. L. 1'. Act, although no
liiliLt lias been ta'. .i, without the formalities
IriiiLi'ly rciiuired in the case of an attaehment
br miiipuyiuent of the amount awarded. An
del' for leave to enter such judgment is not
:essary. McXeil v. Liiirlex.^,'^ F.. J. N, S. 1!)0.
k'. L. Chivinb. —A. Wilson.
I. \ County Court and a Division Court suit,
i all disputes were referred, and a sum of
iouey awarded, to be pain j A. to B. after ten
lya' notice of the award. The notice was
Cveil uiwu the attorney who had acted for A.
1 tlio arbitration, but who disclaimed any right
ffitrwise to represent him on application for
|ve to enter judgment for nonpayment ;—
¥1(1, that the service was insultieient. //( ir
Vv\: Poller, 4 P. U. CI.— P. C. -Hagarty.
4.- By Action.
(a) Pkadinij.
leiiaratiou of husband and M'ifo. Reference
nettle the allowance in lieu of alimony. L)ecla-
Bonon submission bond. Special demurrer.
pti; V. Hteijman, Tay. 498.
ulebt on award that defendant should pay
IntiS' £149 on a day mentioned, and that the
latiff should deliver up a house to the defend-
I on the same day : — Held, that these were
mmnt acts, and that the plaintiff must aver
ailiiiess to perform his part. Bal:er v. Booth,
tat it is sufficient to aver readiuess to deliver
ili(j premises without actual delivery, and
reraA ; and where to a plea that the defend-
ant demanded the award from the arbitrator on
the Titli of Fcbriiivry, the iilaintitV re|ilied u
publication and luitico of the awiinl on the (ith,
(the day when tlie award was to be made), the
replieatioii w;is licM i,'iio(l. Itiiki r v. Ilnnf/i, 'J
o. ,s. :{7:t.
declaration in dilil on a Hubiiiissidii bond,
averring that the awaid was made on the day
appointed. I'lea "no award." Ileidication —
an award w itliin the tinie to w it, on a day and
year diU'eii'iit from the year stated in the declar-
ation, lieplicatioli held siillicieiit on general
ileiiiurrer. ./loA/i' v. .Iinhii, ,">(>. S. (lO'J.
Nonpayment nf the inoiicy awarded is a sulli-
I'ieiit breach, williiiut averriimiiotiee of an award.
I'll fill r \. Alii'iiii, ."><>, S. ■!.").
When the submission does not limit any tiiiii'
for the award, plaiiititl' need not aver that it was
made within a ii^asonable time, iioi' allege notice
of. the nward. Ai/umi v. J/mii, ■'> i.). U. '29'2.
.Money awarded was held under the circum-
stances, not recoverable on the eoiiimoii counts.
Ilnlilili V. MrCiirt/in, .")(). S. <M>.
Ill debt on bond to perform aii ,i . ird, u plea
setting forth mere legal groni'ds > objection
and concluding to the country, is 1 nl ; and if
there be two separate parts in i.ie award, an
answer to one part eaiinot In ileaded i i bar of
both; and if two breaches assigneil in Hiu
replication, it will be sullieient o' !.;t;neral
demurrer if one only be .<upiiorli"l, lim/il v.
Diinuii/, .'■•O. S. 1 •_>•_».
In debt on an a'nird in favnvrof tlie King.ston
JJaiik Comiuissioiier.s, under 10 Ceo. IV. c. 7.
the declaration set out an award that ^defeii-
diuit shouhl jiay i'OOO in bills or notes of the
bank, or bank certificatcH, or orders for stock,
by a certain day ; and assigned as a breiich non-
payment in the terms of the award, but did not
negative payment in money: - Held bad, on gen-
eral demurrer. Kiinis/nn Hunk ('miiiiii-i^iniii'rK v.
Dalloii, K. T. .3 \'ict.
I'lea of no award by arTiitrators, or by umpire,
(lull/ appointed : Held, bad on special demurrer.
Criihi-r V. Ilinjijiiii, (JO. S. ."OS.
declaration in debt for UIOOO, allegiiip- a refer-
ence between plaintill' and defendant, by bonds
with a penalty of t'lOOO, and setting out the
award thereon, assiijiiing breaches for non-
performance, and concluding "whereby an action
had accrued to recover the sum of £1000 above
demanded :" — Hehl bad on special demurrer, as
an informal declaration on the bond of submis-
sion. ShnpsDH V. Minli; (! O. S. Till.
A set-olF of a sum certain 1j a good plea in
debt on a aubmi.iuiou bund, asjigning as a breach
the non-payment of a iium certain awarded.
Liiulfonl v. Miisji-ofr, O. S. G4'J.
Award to be made in writing. Pica, that the
arbitrators did not award in writing under their
hands : — Held, bad. Hahi/ v. Daorniiort, (j U.
S. 643.
The effect of a ropuguancy in a replication,
setting out an award, to the submission set out
on oyer, as regards the name of tlie arbitrator.
Teicskij V. Dunlop, 1 Q. B. 1.33.
Where plaintiil' and defendant refer all causes
of action, and after an award given plaintiff sues
■J-T
175
ARBITRATION AND AWARD.
m
v\ '
^it!i
defendant for a causo of action not brought
l>ofore the arbitrators, on the ground that lit) thvn
liad no linowlodgu of it, nn iasmt tuiulercd as to
Buch knowledge in material. /.iiMi/ v. Win-
Volkrnhuriih, 1 Q. B. '-'14.
riuintiif declares in debt on bond for tiio ju'r-
fonniuiee of an award. Defendant pleads no
award upon the preinises. !'; intitt' replies set-
ting out the award. Defendant rejoins matter
oxtrinsiu of the awiu'd, and relies upon it for
shewing the award void. The rejoinder is bud,
08 being a departure from the plea. Mn.iiivll v.
h'anmm, 1 Q. K. 219.
Plea of performance, replication denying it
only by inference — Held, bud on special dennu'-
rer. Lijmhurner v. Xorloii, I (J. IJ. 485.
A variance in the names of arbitrators - Held
no ground of nonsuit. Uentify v. }l'<'nl, 4 Q. B. 98.
Defendant set out tlie condition on oyei-, which
was for the performance of the award of arbitra-
tors, and pleaded " no award made. " Thoplain-
titf replied, showing an award made ut the
proper tin:e and with the proper formiUities, and
setting it out ; and then averred notice by de-
fendant of the award, and assigned two breaches.
The defendant rejoined, setting out the award
verbatim, and then demurred separately to each
breach : — Held, that the defendant could not by
thus setting out the award in his rejoinder by
suggestion, make it a part of the pluintiif's
replication, as in the Civse of a deed pleaded with
profort ; and that the defendants dennirrer should
have been to the replication, and not to the
several breaches assigned in the replication.
But upon the whole record judgment was given
for the defendant on the demurrer, because the
awiU'd as set out by the plaintiff himself in his
replication was void. Benedict v. Parh, 1
C. P. 370.
Plea in assumpsit on an award, held bad on
special demurrer for not identifying the matters
referred with the cause of action, ('(tlvin v.
McFhenou, 4 C. P. 150.
Debt on submission bond. Seven pleas object-
ing to v;didity of award, all held bad on ile-
murrer. Finkle v. Arnold, G Q. B. IGS.
Declaration on a bond of submission to J . and
Ii., of an action brought by plaintiti' against
defendant, with other matters, with liberty,
either before said arbitration (U* pending said
reference, to appoint an umpire. '1 he coiulition
was, to abide by the award of the arbitrators, if
made on or before the KJth of June, 1855, or if
they should not make their award by that time,
then by the award of the umpire, if made on or
before the name day. Plea, no award by arbi-
trators or umpire, on or before the 16th of June.
Replication, tliat the arbitrators before entering
on the arbitration appointed an umpire, who
with the said arbitrators, within the time limited
for making the award by the umpire, to wit, on
the 1 6th June, 1855, awarded that there was
due from defendant to plaintiff £55 ICs. Id.,
upon balance of accounts, and also £5, costs of
the arbitration, which sums they awarded de
fendant to pay to the plaintiff, &c. : — Held, on
demurrer, replication bad, for, 1 . H the award
could be supported at all, it could only be as the
award of the two arbitrators, and should have
been so set out, to make it in accordance with
the submission. Roddy v, Lester, 14 Q. B. 259.
Proceeding by attachment on an award ia im |
bar to Hubse(|uent action on the same award,
thiiugh tlie court may stay tlie action sotliiUtlic |
defendant be roleuscd from the uttuchiiiviit
/)e.rter\. Fif^nihlnni, 4 L. J. 4.1. -C. L. t'luii,,!,.
Itubiiison.
Ill a declaration on an awanl that defciidant |
Hliould make, execute, and deliver to the plan
titfagood and sullicicnt conveyance in fee sim.
]>lt<, with tiic usual covenants, of certain l.iiiill
H|)ecilicd. Breach that defendant never had am f
title, find so could not perform the awjirl f
Plea - that defendant did, in pursuance of tlinl
award, execute and tender to tlie plaintiti' 8iidi|
deed as in tiie declaration mentioned: -lli'li|,|
on demurrer, plea good. Andermm v. I'm
Biixevk; 18 (l B. 172.
All action on an award, to which the defen.
dant pleaded perfoi'inance only. At tliu triil
a verdict was entered for defendant, with \mt
reserved, if he was not so entitled, to ent«ri
verdict for the ])laintitf for £2G 9s. and interest:
—Held, under tlie special circumstances set om
in the case -I. That defendant was not eiititleil
to a verdict in his favour, for though tiic awanl]
was unauthorized, yet ho had not objected to it,
but pleaded performance, which he had dcarljl
failed to prove. 2. That a verdict must go fi
the plaintilf for the £26 9s,, as it had tKienit|
agreed at the trial, although under tiic dfm-
stances the plaintiff was not necessarily entitldj
to that sum, the defendant having oifered to ilt
all that be had a just claim to call upon himk
lb.
The submission and award being set out ^
full in the declaration ; qux're, whether an objiC]
tioii that the award was not final, could '
raised by plea, or whether defendant should
have demurred. Ellwowl v. The Corpomt'm 4
the County of Middleneu.; 19 Q. B. 25,
To an acti(ni on an awartl defendant, afi
setting it out ut length, pleaded, I. That tl
arbitrators awardeil upon matters not subraitti
and which accrued after the subniissiou,
upon accounts between the parties to a jitni
long after the submission ; 2. That the awi
was not tinal, in this, that tiio sniJ mat
relating to the Berlin property were matters
difference, and were submitted to tlic arbit
tors, but that they did not award tliereon ,
in this, that they did not dispose of tlie differei
respecting the value of the (iuelph property, '
left the same unsettled and dependent upon tl
sale thereof by the plaintiff, when only the anioi
to be accounted for to defendant coukt be
termined : — Held, on demurrer, both pleasgi
and as to the second plea, that the avenuent
to the Berlin property was a sufKcient defem
and the plea therefore sufficient, although
award as to the Guelph land was not wantinj
finality :— Held, also, that upon the evidence-
out in the case, the first plea was not pmvi
Stewart v. W'eb.tter, 20 Q. B. 469.
In assumpsit on an awaril the plea of nunrt
indebitatus puts in issue the submisaion, |
onlarcement of the time, and the making of I
award according to the submission. AIMl
Skinner, 7 L. J. 158. --C, C— Mackenzie.
In debt on a submission bond a plea of i
quam indebitatus puts the submission in i
Abbott v. Skinner. 11 C. P. 309.
1177
Defendants hpnii]oH i
Ition ploade<l, setting o
Idedaratiiiii and .'lijugj,
jfaee of it, for lutt i\
laforrt'd, for want of (
jmithority : Hold, pj,..,
luiatter of law alrojuly
Iniurrer. .SV/«v')// v. J/
Aetidii on bond. |
[conditioned to perfoini j
jniaJe. I'laintiir must i
the condition, ormttiiig
ilig a liicjich ; ho caiiiiol
'Wlille.aL. J. |;jj. (,!.
Tbo(Ifclan,:i()ii, nhur
ireiiccs litid ari.sen bctwe
tatator of defendant, aiii
(ntered into an arbitratii
ilfto refer said dilTvfu
rere set out; and tlui
Wblished their award in
if testator, and had awa
'wuld p-iy plaintiff by ,
len averred nonpayniunt
it:-Held, on demurrer
Reaction appearing to bu
lithe bond, it was not m
award, but only so \
ie plaintiff's case. Prop
bond conditioned to uei'
IcMiim V. McKinmm, h
The second count averrei
IRadway Company, by tl'i
H alleged that the plai
compensation ; and {
rarded him 810.000; wli
the statute, defendants 1
B the costs of the arbit
>y:~Held, on tho author
ay to V. Blake, G If. &
*;r1«i'*»'*g"'jdplca tt
^'"''^"ffalo and Lake Hu
The eleventh pica to tin
in count for money awa
jrd mentioned and the t
pd in the first count 'a s
m], were the same .~ii\
Arbitrators having award
e plaintiff for injiioul
an action on the award dot
mtable grounds, that the
fcesjively and fraudulently
'affl was made by the frai
~tion of the plaintiff
™git;-Held, ondemun
a be
er
eeri
Ntiff declared on . .
ing that the arbitrators
flerence, amongst oth
:'"/''«C P.Vweer,
taltbt defendant shoul
oi the reference and of i
J^nt pleaded non est fL
'ktheniatterrelatinJtoth
X'«lprevioust"tiB''a'!
•«"orney,„ the suit i„*j
177
ARBITRATION AND AWARD.
im
Dcfcnila»ts boHidoH (iRinnrring to tho doclara-
Itioii pleatlod, settiiiu; out tlio wholo award in tho
Ideclaratiou and ,'iUugiiig that it was void on the
I face of it, for not iteoiding all tho niattorn
Iroforrod, for want of linality and for oxcoss of
Luthiirity : Hold, i>h'iv had, iw putting in iHHUo
lumlttT of law alroady hroiight up hy tho do-
limurer. Sltii""!! v. Murtiii, 'J'2 Q. H. IM.
Action on bond. I'lca, that tho hond w:u:
Icuiulitionuil to i)orforni an award, and no award
Imade. I'laintill" niUHt ruply Hpociully, ilenying
■the uouditiou, or Hitting out an award and allog-
liiiii H breach ; ho cannot tako iusuo. t'omin v.
Ill/il/f, !> !'• J- 131. — C. L, (Jhanil). - Drapor.
The dculari, ion, aftor rociting that cortain dif-
ireiices iia<l arisen hutwoen tho plaintill' and the
jstator of dufomlant, and that .said tostator had
intvred hitu an arbitration bond with tho plaiu-
iff t() refur said dilForoncoB, sovoral of which
ere set out ; and that tho arbitrators had
luilishud thuir award in writing in tho lifotiniu
if testator, and had awarded that said testator
loulil pay plaintiff by a certain day £100;
.en averred nonpayinout by testatoi' or defund-
it :— Held, on demurrer, declaration good ; for
.e action appearing to bo on tho award, and not
the bonci, it was not nceeyaary to set out tho
(hole award, but only so much as would support
leplaintifif's case. Proper form of declaration
bond conditioned to perform an award stated.
kCallum v. McKinnon, 15 C. I*. flGl.
j The second count averred that the defendants,
I Railway Company, by their notice of arbitra-
|on, alleged that tlie plaintiff was entitled to
compensation ; and that the arbitrators
prjrded him $10,000; whereby, and by force
I the statute, defendants became liable to pay
1 the costs of tho arbitration, but did not
Jiy : -Held, on tho authority of VVelland Rail-
lay Co. i\ Blake, G H. & N. 410, that never
Idebted was a good plea to this count. Wklder
. fk Buffalo (iiid Lakf Huron II. W. Co., 24 Q.
I The eleventh plea to the third count (acorn-
ton count for money awarded), was that the
■raid mentioned and the money claimed there
nd in the first count (a special count on the
Vard), were the same : — Hold, no defence. lb.
[Arbitrators having awarded compensation to
le pkintiff for injuriously affecting iiia land,
tan action on tiie award defendants pleaded, on
liitable grounds, that the sum awarded was
TceMJvely and fraudulently exorbitant, and the
jrard was made by the fraud, covin, and mis-
Ipresentation of tho plaintiff and the arbitrators
'ling it ;— Held, on demurrer, a good dofence.
IPUintiff declared on a bond of submission,
peimj that the arbitrators heard the matters
uifierence, amongst others the costs of an
jtion in the C. P.. between the parties, and
Itfded that defendant should pay him «!! the
Its of the reforence and of the said action, &c.
Vendant pleaded non est factum, and that the
KtntoR did not make any such award. The
' i mentioned no suit, but awarded the costs
Iteference, " and also all costs that may have
p incurred by any legal process through
ph the matter relating to this arbitration may
h passed previous to this a ■ ird. " The plain-
T» attorney in the suit in C. P. produced the
bill of costs in that suit :— Hold, that on these
pleadings, the suit and tho fact of its reforence
might be taken to bo admitted. Ilihhcrt v. SrotI,
U4 Q. H. r.8l.
Held, that sec. 171 of tho<!. L. I'. Act, did not
in any way alter the ]>leading8 in tho case of
awards ; but that, tho declaration showing tho
submission on n certain day and the award within
a few days thereafter, the court would intend it to
have boon within tho stipulated time, and that
it was certainly within a reasonable period, and
within throe months from tho appointment of
tho arbitrator : — Held, also, not necessary to
aver a demand to comply with tho award, or
that a reasonable time had elapsed before action.
IMd V. Udd (AdminktratruJ, 1(5 C. P. 247.
'J'ho court had decided that one portion of an
award was bad, but the other portion good.
I'laintiff sued for non-compliunce with the latter,
but omitted to set out the former part : — Held,
that the omission was immaterial ; out that even
tho omission of a material part could not bo
objected to under a denial of tho award in the de-
claration mentioned, liondv.liond, IGC. P. 327.
See Oerrie v. McDonrtdl, 18 Q. B. 140. p. 120.
(b) Evidence.
In an action upon a submission bond, pica,
non est factum, and subsequent suggestion of
breaches by the plaintiff, it ia sutlicient to prove
the bond and suumission set out upon tho record,
aiul an award tallying with it. Losxlnrj v.
Horned, Tay. 219.
Ill an action on an award, with the common
counts, the hulnnissiou to arbitration as set out
in tho declaration mentioned three defendants,
and the award in reciting the submission only
noticed two, but referred to tho rule by which
the submission was made as annexed to tho
award, in which rule the three defendants were
named : — Held, that the variance between the
submission set out in the declaration and that
recited in the award was immaterial, as the sub-
mission itself agreed with tho declaration. JIak
V. Matthvaon, Dra. C3.
In debt on an award under bonds of submis-
sion, it is necessary to shew a mutual submission,
and to prove the bonds executed by all the
parties ; but where the defendant at the trial
accepted a credit without objection for money
paid on the award, he was held precluded from
objecting that the plaintiff had not proved his
own execution of the boml. Skinner v. Ilolcoinh,
G O. S. 33G.
In debt on award the declaration recited a
submission by bond, averring that under it the
arbitrators had made an award upon one of the
matters in difference, the other matters having
been by consent withdrawn, and that afterwards
the other matters having been again submitted,
the arbitrators made an award in favour of the
plaint'fFs. Defendant pleaded no such sub-
mission, and never indebted. At the trial the
plaintiff' proved the parol submission, but not
tho bond, and a point was reserved for the de-
fendant to move upon that objection. The court
on motion for a new trial (the verdict being in
accordance with the justice of the case) refused
to interfere. Hdhi/ y. Duvenjiorf, 3 Q. B. 13.
I;
t\\
2
'< i
179
ARBITRATION AND AWARD.
180
I I
Held, that an award made after the time had
elapsed could not be taken as evidence of an
account stated. RutJtven v. Ruthven, 8 Q. B. 12.
Semble, that the award was not admitted by
the pleadings in this case ; but — Held, that it
was sufficiently proved by shewing that the
defendants paid a portion of the sum awarded,
and that their officers had stated in writing the
particulars of the award, and the sum remain-
ing due on it. Hughes v. Mutual Fire Ins. Co.
of District of Newcastle, 9 Q. B. 387.
The plainti£f and defendant having a dispute
referred it to M. to determine ; and M. having
heard their statements, awarded that defen-
dant should pay to the plaintiff £25. Subse-
quently, at the request ot the plaintiff's attor-
ney, he made a written award to the same effect,
and delivered it to the parties. The plaintiff
having sued as upon a verbal submission : — Held,
not necessary to produce the written award, as
it appeared from the testimony of the arbitrator
that the verbal decision was in fact his award and
so intended. Davis v. McGivern, 11 Q. B. 112.
Where a plaintiff proves such an award as
stated in his declaration, its legal effect or val-
idity is not involved under a plea of mil tiel
award. Hartley v. Huntley, 4 C. P. 276.
Plaintiff need not shew that the award was
executed by the arbitrators at the same time.
That is assumed in the first instance, but defen-
dant may shew the contrary under a plea deny-
ing the award. Sullimn v. Kinij, 24 Q. B. 161.
See Smith v. Geonje, 12 Q. B. 370.
In an action founded upon a bond conditioned
for the performance of an award : — Held, that
under a plea of nul tiel agard evidence is admis-
sible to shew that the arbitrators took into their
consideration and decided upon matters not refer-
red to them. C'arn'th v. Fortune, 12 C. P. 360.
In an action on an award it is sufficient to
produce tlie submission bond executed by defen-
dant, without that executed by the plaintiff.
Towsky V. Wythes, 10 Q. B. 139.
A municipality by by-law opened a road across
plaintiff's property, and arbitrators were ap-
pointed under 16 Vict., c. 181, to detennine what
compensation should be paid to him. Afterwards
a resolution was passed by the council that the
arbitrators so chosen should be instructed to
take into consideration tlie damages to tlie plain-
tiff's crops and fenoca, so that all differences
might be settled ; and they awarded separate sums
for opening tlio road and for damages, respec-
tively. The plaintill' liaving brought debt on
tliis award, defendants pUjadeil no award:— Held,
that under this plea they could not dispute the
arbitrators' authority to award tlie latter sum ;
but should have moved to set aside the award,
or might have pleaded nun(iuam indebitati to
that sum, wliich would have l)ronght the sub-
mission in issue. f/inti/Min v. Municipaiitii of
Whithy, 17 Q. B. 230.
To an action on an award defendant pleaded
a set-off for costs of defence in certain suits due
to him by the same award. The award recited
a submission of an action in the C. P, by plain-
tiff against defendant, and also of "all other
matters of difference, action and actions, suits,
and controversies whatsoever," and awarded
that defendant should pay all coats of said suit,
"and all other law costa occasioned by any suit
or suits, action or actions, either at law or
equity, had about and regarding the premiscj,
and brought before the execution of said bondj
of aubmisaion to arbitration ; and we also order
and direct that no further proceedings shall be
had in any or either of said actions :" — Helj
that the defendant could not under his plej
recover for costa of suits in which judgment had
been given before the reference, for they were
not included in the submission or award :-
Held, also, that the evidence of the arbitraton
was rightly received, to shew that such costs
'vere not intended to be allowed. Campbell y
Howland, 19 Q. B. 18.
The declaration on a submission bond alleged 1
an award that defendant should pay the plaintiff |
$540, and each pay their own costs of the sub
mission, and that $60, other costs, should be paid I
by them equally. Pleas, denying the submisaioD
and award. The plaintiff' proved the execution
of defendant's bond, and gave secondary evi-
dence of having executed a similar bond himself,
which was given to defendant, and of the I
appointment of third arbitrator endorsed on it,
having served a notice to produce on defendaut's
attorney, at 11 a. m. , on the day previous, the
commission day, defendant living seventeen I
miles off, at a place to which there was a dailv
mail : — Held, 1. That the execution of plaintifi's I
bond being put in issue, it might be presumeil I
to be in possession of defendant's attorney ; anil j
if it were not, that the notice under the cireuni- 1
stances was sufficient; 3. That the plaintiff I
having paid the $60, was not entitled to recover I
half of it from the defendant. Sulliron v. Khhi l
24Q. B. 161.
To an action brought upon an award of cunipen' I
sation to the plaintiff under the Railway Act fori
injuriously affecting his land, defendants pleadeilf
that the sum awarded was excessively and fraudu I
lently exorbitant, and that the award was oh I
tained by the fraud, covin, and misrepresentation 1
of the plaintiff and the arbitrators. At the trial,!
to support this plea, defendants called several witl
nesses to prove that the sum was grossly exceif
sive. None of these witnesses, however, had beeil
brought forward at the arbitration, altliough del
fendants could have called them then a.s well ail
at the trial ; the award was clearly snstainedl
by the only evidence before the arbitrators ; uif
attempt was made to impeach the credit of any d
the witnesses who gave it ; no iniscouduct wii
proved on the part either of the plaintiff uro
the arbitrators ; and the arbitrators, being s\vurn,|
denied any improper moti\ e : — Held, that uiidej
these circumstances the evidence as to value (
witnesses not before the arbitrators was iiiadl
missible in support of the plea. Quaere, wliethel
anything short of actual fraud could suppoi^
siich a plea. Widder v. 7^ lie Buffalo kwI /.«'
Huron R. If. Co., 24 Q. B. 520.
Upon appeal from the above uecisioii ;— Heli|j
Per Richards, C. J., Adam Wilson, J., iMorr
son, J., and John Wilson, J., such evideuci
could not be wholly rejected. Per Drapej
C. J., Mowat, V. C, and Spragge, V. C,
was not admissible. iVitlder v. I'hc Buffalo fl
Lake Huron R. IV. Co., 27 Q. B. 425. See.alM
Daly v. The Buffalo and Lake Huron R. II'. fflj
16 Q. B. 238.
can be prove
I Semble, tliat an objeci
made the award withe
could bo taken advanta^
[jward. Smith v. George
. In an action on a bond
|cf authority in giving coi
McM no objection to tl
[were not sued for. Roddt
Defendant became b(
penalty to abide by an ai
parded $400 to be paid
II in three instalments
leeured by defendant upo
#Me at a future day. I
|he first instalment, nor si
Jhird in the manner direct
^^^ was entitled to assess
ale three instalments
327.
, First count of declaration
it 8400. 2nd. For $85.
loanded on a submission, l
fence, whether partner
jbitration. Pleas, 1. Pa;i
lommon counts. On motioi
[or plaintiff, on the grouii
Irators exceeded their auth
fward, 2. That since the)
■noney had been received b-
"Its use :-Held, that as :
e upto the award at the
aken to set aside the a\
Ml not now set up sue]
Honeys had been received b
jfflts use, as alleged by d
[ward, defendant could on
»ewn the same at the trial.
fm< 14 C, P. 97.
behool trustees cannot be 1
Kc,4!)8. 9, for wilfully
Igtocomplywith an award,
:il
^i' ' I Ti'
1 i'
181
ARBITRATION AND AWARD.
182
The ftttesting witness to an award may be
compelled to attend and prove the award. Tay-
l„rv. Bostwick, 1 Chy. Cnamb. 23. — Spragge.
(c) Other Ciises.,
For non-pa jonent of money awarded in accord-
ance with a deed, the plaintiff should sue in
covenant. Tait v. Atkinson, 3 Q. B. 152.
Upon a motion against a verdict on an award,
the court will not go into the merits of the
^•award. Tliirkell v. Slmvhan, 4 Q. B. 13(!.
When an award directs two to pay each a
i certain sum, and one is obliged to pay the whole
because the other refuses to pay his share, the
t party 80 Paying <''''" compel contribution l)y
suing the othe# in covenant for non-performance
[of the award. Allen v. Coi/, 7 Q. B. 419.
Where the plaintiff liad been awarded a certain
i BUin in accordance with the terms of an iustru-
mtiit under seal ; for the non-payment of such
Ln award the plaintiff should sue in covenant:
he cannot sue in assumpsit unless some new
1 consideration, apart from the written instrument,
lean be proved, Tait v. Atkinson, 3 Q. B. 152.
SemWc, tliat iin objection that two arbitrators
Imade the award without notice to the third,
IcouW bo taken advantage of in an action on the
[award. Smith v. Georfje, 12 Q. B. 370.
In an action on a bond of submission, an excess
tot authority in giving costs of the reference was
|.-HeUl no objection to the award, as those costs
l^ere not sued for. Roddy v. Lester, 14 Q. B. 259.
Defendant became bound to plaintiff in a
icnalty to abide by an award. The arbitrators
liwarded $400 to be paid by defendant to plain-
jtiffin three instalments, tlie two last to be
pecurcd by defendant upon real estate, and pay-
able at a future day. Defendant neither paid
|iie first instalment, nor secured the second and
lliird in the manner directed : — Held, that plain-
' was entitled to assess his damages for the
"i three instalments. Bond v. Bond, 16 C.
,327.
First count of declaration on a promissory note
fcf $400. 2nd. For $85.18, under an award
Bounded on a submission, leaving all matters in
[liffercnce, whether partnership or otherwise, to
(ibitration. Pleas, 1. Payment ; 2. Set-off on
tommon counts. On motion to set aside a verdict
lor plaintiff, on the grounds, 1. That the arbi-
^tors exceeded their authority in making their
kward. 2. That since the making of said award
poney had been received by plaintiff to defend
ut's use :— Held, that as no defence had been
iet up to the award at the trial, and no action
jaken to set aside the award, the defendant
loulil not now set up such a defence ; and if
poneys had been received by plaintiff to defcnd-
int's use, as alleged by defendant, since the
Iwatd, defendant could on the pleadings have
pwn the same at the trial. McKenzie v. Sotn-
htr., 14 C. P. 97.
I Suing on an award will estop a party from
lenjing the authority of the arbitrators. Black
\ Allan, 17 C. P. 240.
I School trustees cannot be held liable under 23
lict, c. 49, 8. 9, for wilfully nefjlecting or refus-
bg to comply with an award, without being first
afforded an opportunity of explaining or justify-
ing such non-compliance, (iraham v. Hunger-
ford, 29 Q. B. 239. See also, VnnBnren v. Bull
19 Q. B. fi.S3.
.5. By Siierijtr Pirforiimnce.
This court, when the relief given by the award
is of a nature proper to be specitically performed,
will decree tliat relief ; and that, too, although
the court cannot specitically perform some part
of the award, which is for the benefit of the
plaintiff, but which portion the plaintiff consents
to forego. Bell v. Miller, 9 Chy. 385.
Tlie plaintiff and defendant owned adjoining
lots, through which a stream flowed freely in its
course untd defendant threw logs and refuse
wood into it, wliich had tlie effect of damming
back the water on the plaintilF's land, where -
npon the plaintifl' instituted "proceedings at law,
which action, with all matters in difference
between the parties, was referred to arbitration,
when the ar))itrators decided that defendant
should remove all tlic timber across the creek,
ai\(-( paj' r>ne-half the costs of the action at law.
The defendant iiaviwg refoscd to obey the award,
the plaintiff filed a bill for the purpose of com-
pelling obedience thereto. The court, under the
circumstances, made the decree as asked, and
ordered the defendant to pay the costs of tho
suit. Ilodder v. Turvey, 20 Chy. 63.
IX. Co.STS.
1. Biijhttu Full Costs.
A\'licre an action is commenced in the King's
Bench, and arbitrators upon a reference jvward
damages under the jurisdiction of tho District
Court, the plaintiff if not deprived of costs.
Lumj v. Ifnll, Tay. 215.
Where a verdict was taken sul)ject to a refer-
ence, and the arbitrators awarded £10, reducing
only the price and not the items of the account
sued for, a suggestion to deprive the plaintiff of
costs, under the Court of Requests Act, was
refused, litratj'ord v. Sherwood, 5 O. S. 169.
Where a cause has been referred by nisi prius
order, an application for costs of special jury
stnick and called, must be to the judge by whom
the reference was made. Commercial Bank v.
Prinijle, 3 L. J. 28.— C. L. Chamb.— Draper.
All matters in difference in this cause, and in
a building agreement between plaintiff and de-
fendant were referred, costs of the cause and
reference to abide the event. The award after
disposing of the issues in plaintiff's favour,
assessed his damages on account of the non-per-
formance by defendant of tho promises alleged
in the declaration, and of the matters in dif-
ference on the building agreement, and also the
plaintiff's costs and charges, at .€52 IGs. 7d.
The costs of the reference and award were then
fixed by the award at £20. The costs of the
suit were afterwards taxed without notice to
defendant :— Held, that as no verdict had been
taken the plaintiff was entitled to full costs.
Jones v. Reid, 1 P. R. 247.— P. C— Burns.
Held, that tho words, "costs of the suit," as
used in an award, have no reference to any par-
:m
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'i ,! i»
'■^\ hi.
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r
ii .
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183
ARBITRATION AND AWARD.
M
ticular scale of taxation, and so cannot, per se,
be relied upon as entitling plaintiff to full costs
of suit in a case where the amount awarded is
within the jurisdiction of an inferior court.
Keep V. Hammond, 9 L. J. 157. — C. L. Chamb.
Draper.
Where the transactions amounted to about
$1,100 on one side, and about $800 on the other,
and defendant paid into court $176, and plaintiff
recovered $102.30 by the award : — Held, that
full costs should be allowed to the plaintiff.
Joiies V. Hfwson, 2 L. J. N. S. 107.— C. L.
Chamb. — A. Wilson.
Where a cause is referred, costs to abide the
event, the plaintiff is not entitled to full costs if
he is awarded anything, but to such costs only
as he could have claimed if he had recovered the
same amount. Watson v. Garrett, 3 P. R. 70.
— Chamb. —Richards.
Where a cause was referred, costs of the cause
to abide the event, and costs of the reference in
the discretion of the arbitrator, and £4 was
awarded to plaintiff, the taxing ofHcer refused
to tax only Division Court costs subsequent to
the award, and his decision was upheld. Fleur-
ynck V. Clifton, 3 P. R. 216. — Chamb. — Bums.
2. Under Rule of Court
WTiere a cause is referred by order of nisi
prius, and a sum awarded within the District
Courts— the court or a judge may srant an order
for full costs under the nmth rule of E. T. 11
Geo. IV. Elmore v. Caiman, 4 0. S. 321.
A cause having been referred by order at nisi
prius, and a sum awarded within the County
Court iurisdiction, the coUrt, on affidavit, granted
an order for full costs, under the 9th rule of
E. T. 11 Geo. IV. Morse v. Teelzel, 1 P. R. 375.
—P. C— Richards.
Where final judgment is obtained without a
trial a judge in chambers has power to make an
order for full costs. Quaere — Should the order
be ex parte ? Where a cause is decided by an
award, the cause is one proper for an application
of the kind. The order may be made unless it
appear that the cause was one in which the
plaintiff was bound to sue in an inferior court.
A plaintiff, in order to bring his cause within
the jurisdiction of an inferior tribunal, is not
bound to give credits. It is his privilege to do
80, but there is no legal obligation upon him to
do so. Geroux v. Yager, 8 L. J. 19.— C. P.
Two actions for false imprisonment were re-
ferred at the assizes, no verdict being taken,
costs to abide the event. In one the arbitrator
found £20, in the other £ 10. The plaintiff having
proceeded by attachment on the award : — Held,
that he was entitled to full costs without a
certificate. Such a case is not within the I55th
rule of court, for the plaintiff cannot be con-
sidered as proceeding upon the final judgment.
Cochrane v. Scott, Cochrane v. Cross, 3 P. R, 32.
— C. L. Chamb. — Burns. Moved against in full
Court of C. P., but rule dischargee!.
A cause was referred, before trial, by judge's
order, costs to abide the event, and the arbi-
trator awarded £9 38. 9d., the claim being origi-
nally of the jurisdiction of the County Court,
dan reduced by set-off. The plaintiff applied for
full costs, on affidavit shewing that he iuteniie<l I
to enforce his award by rule of court, aiul fxt [
cution under C. S. U. C, c. 24, s. 1!). ii^j
application was refused for — Held, that he mus; I
be considered as obtaining final judgment v\\\. I
out trial, and the case came within the rule o! I
court No. 155. Watson v. Garrett, 3 P. E. ;('
— Chamb. — Richards.
Semble, that the rule of T. T. 24 Vict, applij.
in the case of a compulsory reference U, t\,A
whole costs in the action, including the coats ojl
the reference and award and proceedings subsf.l
quent thereto, and is not restricted to what mat I
strictly be called the costs of the action :— HeKI
that under any circumstances such was tktl
proper construction of this order of reference, }A
which "the cause and all matters in dispuhl
therein were referred to arbitraMon, with powe.1
to the arbitrator to certify for costs in the sacul
manner as a judge at nisi prius, and that tliJ
costs of the cause, award, order and reference,!
subject to such certificate, should abide t||t|
event." Johnson v. Morkij, 3 P. E. 211-
Chamb. — A. Wilson.
3. Otlier Cases.
Where a cause was referred, costs toahidetliil
event, and the arbitrators having made no awarjl
the parties agreed to refer the cause toMtl
judge of the District Court who should first couil
to Perth, and such judge awarded that titl
plaintiff had no cause of action, and that ju(ij.|
ment should be entered for the defendant:-!
Held, that the award was good, and tluil
defendant might maintain assumpsit for thl
taxed costs of the cause, and was not obliged J
enter judgment. Hale v. McMhison, 3 0. S. "
Where, owing to the misconduct of a partr,!
arbitrators do not award, but an umpire do^l
costs will not be granted to the other partjj
under a clause in the reference, "that if eitlul
party shall by affected delay or otherwise rij
fully prevent the arbitrators or umpire froji
making their award, he shall pay such coats t
the other as the court shall think reasonable anil
just." Proudfoot V. Trotter, 1 Q. B. 398.-
C. — Jones.
When the costs of the reference arc in the d
cretion of the arbitrators, it is the usual i
most proper practice to fix a specified sui
Laurie v. Russell, 1 P. R. 65.— P. C. -McLean
An agreement that all coats shall be in t
power of the arbitrators, &c. , inserted after ItJ
condition of the bond, must be read as part of it
Extravagance in the amount of costs alloweJ
under such a submission must be objected to lij|
motion. Toiosleyv. Wythes, 16 Q. B. 139.
WTierc the costs of the reference arc in til
discretion of arbitrators, and the award sajj
nothing about them, each party pays his oi|
costs ot reference, and the costs of the awardii
to be borrn equally. Gkn v. Grand Trmi I
W. Co., 2 P. R. 377.— P. C— Burns.
Where the costs of the cause were !» abiii|
the event, but no authority was given to din
a verdict, and the award was silent as to co!ti|
— Held, that attachment was the proper rcnie(l
for their recovery. A power of attorucyfnii
See IV. 2, (k) p. 134;
pight of defendant arreste
I reference to arbitration
il ^' ???-^- C.-Hage:
IH5Q. B. 279.— P. C..
185
ARBITRATION AND- AWARD.
186
I one of three defendants to demand the costs is
linfficient. Shipman v. Shipnian et rd., 2 P. R,
|m3 _-P. C. — McLean.
It having been aci-eed on the trial that if
[certain facts left to the jury should Ije found for
■" the matters of account were to be
IJeferred, no mention having been made as to
Icosts, the jury found for plaintiff : — Held, that
Ithe costs of reference were costs of the cause.
lEultnn V. Bon lion, 10 C. P. 417.
The costs of shewing cause against a rule for
letting aside an award, are costs in the cause,
-ilthough no mention of them is made in the rule.
tC'orporation of Essex v. Parke, 12 C. P. 159.
The phrase "costs in the cause" generally
means tne costs only of the party who is success-
iil in the cause. But where the phrase was used
an award, as follows : "We also order and
(ivard that plaintiff and defendants shall each
jay haU the costs of the cause, and that the
Befendants shall pay all the costs of the reference
jid award, our costs of which reference and
■ward as arbitrators we assess at the sum of
01.50," it was — Held that "costs in the cause"
Ceant the whole costs of both plaintiff and
Befendants. ScoU v. Grand Trunk R. W. Co.,
|0 L. J. 72.— C. L. Chamb.— Richards.
Costs of the award ordered to abide the event
Unnot be divided between the parties. Martyn
\Dkbon, 2 L. J. N. S. 209.— P. C— A. Wilson.
feWhen a rule is asked for to refer a case back
ran arbitrator to certify to prevent defendant
rincting costs, the arbitrator evidently intend-
athat each party should pay his own costs,
K rule will be made absolute without costs,
L costs of taking the award again before the
ibitrator to be borne by the applicant. Jordan
\AMtr, 8 L. J. N. S. 67.— P. C— Gait.
i By the reference the costs of the cause and
%(ik! were to abide the event : — Held, that
(citic directions given as to the costs in the
ird were unobjectionable, as in effect they
fected only what would have been the result
Ithout them. Johnston v Angl'm, 29 Q. B. 372.
|A taxation by a deputy clerk of the Crown of
iets under an award, on a reference to arbitra-
|n of two causes in different courts, together
|th all matters in difference, is not a nullity,
jbeing beyond his jurisdiction, and probably
teven an irregularity. In re Ilotchkiss and
b(/, 5 P. R. 423.- P. C.—G Wynne.
! Cam}Ml V. Hoiclaml, 19 Q. B. 18, p. 180 ;
%\m\. King, 24Q. B. 161, p. 180; Connor
\UtComack, IS C. P. 271, p. 158.
See IV. 2, (k) p. 134; VI. 8, p. 153.
.\. Miscellaneous C.\.s) s.
L Ilka, stating that defendants, executors as
Iresaid, submitted to arbitration, docs not
|)ly that they submitted in their character as
iciite. Bkekcr v. Meyers, Tay. 285.
Right of defendant arrested to be disclmrged
I reference to arbitration. Barry v. Eccks,
B. 3S3.— P. C— Hagerman. Ruthven v.
"«, r)Q. B. 279.— P. C.-#facaiilay.
\. sheriff is liable to an action for the escape
|i party attached for contempt in not perform-
ing an award, and it is not necessary that the
party should he brought up on the return of the
writ of attachment, and fonnally committed by
the court. In such an action the sheriff will not
be allowed to deny the submission or the award,
or to set up any defence which might have been
taken in the proceedings upon the award. He
cannot go behind the order authoiizing the at-
tachment. Huntley v. Smith, 4 Q. B. 181.
To an action of trespass defendant pleaded,
1. Not guilty ; 2. Close not plaintiff 's ; 3. Plain-
tiff not possessed: — Held, that an award as to
the boundary between the parties could not be
given in evidence by the defendant under any
of these pleas. Lake v. Briley, 5 Q. B. 136.
In dealing with awards made under 9 Vict. c.
37, and 10 & 1 1 Vict. c. 24, the court will bo
governed by the ordinary rules of law as appli-
cable to awards between party and party. Com-
mlssioner of Puhlin IVorks v. Daly, 6 Q. B. 33.
Debt on submission bond, The plaintiff in-
sured his property with defendants ; upon a firo
a dispute arose, which was referred. Before
the award, the plaintiff assigned the bond, the
policy, ami the money due thereon, to H. : —
Held, that defendant's assent to this was not
necessary : — Held, also, that the assignment of
the bond did not, by vesting the interest in the
assignee, affect the legality of the award made
under it. Hughes v. Mtttnal Insurance Company
of NewcaMk, 9 Q. B, 387.
Upon a special case stated by an arbitrator,
in an action for converting the machinery, &c.,
of plaintiff's foundry, the court refused to stay
proceedings on condition of defendant restoring
the machinery, &c., taken by him, and held to
be fixtures ; 1. Because they considered it not to
be a case in which they could properly take that
course ; and, 2. Being submitted merely to ob-
tain their opinion on certain legal questions, they
had no power to make such an order. Gooder-
ham v. Denholm, 18 Q. B. 203, 214.
The changing of a contract by «n award, even
though for the surety's benefit, without his
consent, would release him from liability thereon.
Titus V Durkee, 12 C. P. 367.
Held, by the arbitrators appointed under B. N.
A. Act, 1867, sec. 142, that as the British North
America Act, 1867, confers powers on the arbi-
trators appointed thereunder of a public nature,
such powers may be exercised by the majority,
and a joint award is therefore unnecessary. In
re The Provinces of Ontario and Quebec in the
Dominion of Canada, 6 L. J. N. S. 212.
A copy of a fence viewers award, sworn to by
the township clerk, was admitted in evidenco
under C. S. IJ. C. c. 32, s, 6. IVarren v. Des-
llppes, 33 Q. B. 59.
Where a married woman applied as devisee
and legatee for an administration order by
motion without bill, and it appeared that an
award had been made professing to determine
all matters between the executors and the lega-
tees interested in the estate, and it was said that
the husband and wife had been parties to the
reference, the wife acting therein through her
husband as her agent, which they denied : —
Held, that the validity of the award could not
be tried on the motion, and that a bill must be
filed, more especially as other legatees not
i i M 1
^^n
r- r
r-1i ' •:T'
M
i^!
.11
187
AKREST.
•ii-
parties to the motion were interested in main-
taining the award. Nudell v. El/iotf, 1 Chy.
Chamb. 326.— Mowat.
A defendant to an action at law pleiided, by-
way of equitable defence, an agreement to give
time by the plaintiff, and a verdict was taken
for the plaintiff, subject to a refer';iiue. Before
the arbitrator had done more than make an
appointment to attend before him, the defendant
filed a bill to restrain the proceedings at law, on
the same grounds as had been pleaded by him
in the action. The court dismissed the bill with
coats. Pomfroij v. Bosvell, 7 Chy. 163.
Semble, that it is a contempt of a court of
common law to proceed in chancery after a refer-
ence under an order of that court, which orders
the parties to perform the award. Ih.
Witness to award Ijound to prove it. Taylor
V. Bostwkk, 1 Chy. Chamb. 23. — Spragge.
ARBITRATOR.
See Arbithation and Award.
ARGUMENTATIVENESS.
See Pleauino at Law.
In replevin for certain instruments forminjl
part of the band of a militia battalion, brouglil
by the commanding officer, it appeared thattlJ
instruments had been .purchased partly by moonl
voted by the city corporation, partly by genetil
subscription, and partly by donations of tJ
officers and men or the battalion. Some dijl
culty having arisen amongst the officera, odI
defendant refused to give up the instrumentil
alleging his right to hold possession as beinil
president of the band committee, and the ntf(|
defendant acted with him :— Held, I. tJ,I
under s. 48 of 27 Vict. c. 3, the instnimeini
became the property of the commanding otSce|
who might maintain replevin for them ; and ty
this section, as to such property, was in no tiJ
controlled by section 47. LewU v. Tail: A
McDonald, 32 Q. B. 108.
Held, also, that defendants were not entitlJ
to notice of action under 31 Vict. c. 40, s. %
for that statute had no application, and if itk
there could be no right to such notice in rm
vin ; and the finding of the jury that (lefenilaji
did not honestly believe that they had tl]
power under the statute to do what they i
would also disentitle them to the notice, /i, I
ARMY, NAVY, AND MILITIA.
I. LiABiLirv OF Officers, 187.
II. Desertion.
1. AmsUthiij Sailors to Dvmrt, 188.
2. Enlkimj Soldkrs to Desert, 188.
III. Ordnance — See Ordnance.
I. Liability of Officer.s.
No action will lie by an officer .against the
paymaster of his regiment for his pay, when the
paymaster is directed not to pay it over by the
commanding officer. Elliott v. Hall, H. T. 2 Vict.
A lieutenant-colonel of militia was held not
to be liable for the price of clothing ordered by
him for his men, he oeing merely a servant of the
government. Mclldemj v, Baldwin, G 0. S. 31.
The officers of a regimental mess are not liable
for debts contracted by their messman without
their authority. Sutherland v. Sparke, 6 0. S. 103.
A military officer on duty out of Canada, and
suing as plaintiff, must, upon the usual affidavit,
give security for costs. Tripp v. Fraser, 1
Q. B. 253.
Liability of officers to pay toll when travelling
in a private carriage, though in uniform. Retina
V. Dawes, 22 Q. B. 333.
Plaintiff, under commission from the Governor
General, dated 28th May, 185s), was appointed
quarter-master in a troop of volunteer militia
cavalry ;— Held, that under the general powers
conferred by 22 Vict. c. 18, s. 16, the comman-
der-in-chief might make such appointment, and
that so long as he was serving with or attached
to such troop, he was an officer thereof, and his
horse protected from distress under 18 Vict. c.
77, s. 31. Davcy v. Cartwright, 20 G. P. 1.
II. Desertion.
1. Assistinij Sailors to Desert.
The Naval Discipline Act, 29 & 30 Vict J
109, s. 25, authorizes a summary convict«
before magistrates for assisting sailors to dcs
but the 101st section expressly preserves l
power of any court of ordinary civil or criiniJ
jurisdiction with respect to an;' offence
tioned in the act, punishable by commonl
statute law, and : — Held, therefore, that li
defendant could be indicted under 0. )>!. U.j
c. 100, s. 2. Regina v. Patterson, 27 Q. B, I
The indictment charged that defendant "
receive, conceal, or assist " one W., a dcsn]
from the navy : — Semble, not sufficiently ccni
and precise. lb.
2. Enticinij Soldiers to Desert.
Held, that a warrant of commitment, innla
it was charged that the prisoner on tlici
June, 1864, "and on divers other clays i
times," at the city of Kingston, did unlawiJ
attempt to persuade on James Hewitt, a soil
in Her Majesty's service, to desert, was I
for it was impossible to say upon reading J
warrant how many offences he had commia
or how the punishment was awarded. h\
McOinnes, 1 L. J. N. S. 15.— C. L Chamlf
J. Wilson.
ARREST.
I. Manner of Arrest and nv wiioji]
1. What amounts to an Arrest, 190.
2. Power of Private IndividmUoh
190.
3. By Constable — See Constable.
4. By S^grif—See Sherifi'.
II. In what cases Arrest can nr. m
1. Of Foreigners, 191.
2. Other Cases, \{
% For Contempt c
—See Attach
4. Ill Bankruptci
Bankruptc
5. Writ of Arrest
BAND AND V
6. On Ca. Re.—S
DENDUM.
7. On Ca. Sa.~S,
CIENDUM.
8. On Xe Exeat — ,9
9. Extradition—See
10. Commitment — s
Peace.
Bail on— ,9se Bail-
Affidavit TO hold
1. How Intituled, 19
2. Form and Con/e
Vases.
(a) On BilU of
missory ^
(b) On Bonds am
194.
(o) C Comm
(d) . Several C
(e) In Other Acti,
1 Miscellaneous requi
(a) Statement that
leave, 196.
(b) Other Cases, ]
4. Jural and Commiisi
WfiiT OF Capias, 198.
Al'l'LICATION for Dis(
■WIDE ArrE-ST.
1. Oeneral Principle.^, S
-• for Defects in Affidc
I For other Irregulari
4. Waiver of Irregularh
5. (>n Afulavil denvinti
204.
•i. Wliere one of Several
charged, 205.
". Practice in Moving, a
8. Other Cases, 200.
9. Uiiiler Attarhnienf—,'
OF THE Person.
[0, Un Haheas Corpns—S
PU.S.
pcoND Arrest and A
Writs.
11. After Discharge or /
I aside, 208.'
12. Ottier Cases, 209.
|C0ST3 UNDER C. L. p. A
. ^i^''"''"'^ on Applicadoi
J. Other Cases, 210.
piviLEOE from Arrest.
■Vimbers of Parliament
MBNT.
S* '^v-
I89
ARREST.
190
2. Other Cases, 191.
3. For Contempt or Non-payment of Costs
—See Attachment of the Person.
4. In Bankruptcy and Insolvency — See
Bankkuptoy and Insolvency.
5. Wiit of Arrest for Alimony — See Hus-
band AND Wife.
6. On Ca. Re.See Capias ad Respon-
dendum.
;. 0)1 Ca. Sa.—See Capias ad Satisfa-
ciendum.
8. On Ne Exeat— See Ne Exeat.
9. Erlradition—Sve Extradition.
10. Commitment — See Justice of the
Peace.
Bail oy—See Bail— Criminal Law.
Affidavit to hold to Bail.
1. How Intituled, 192.
2. Form and Contentu of in Particular
Cases.
(a) On Bilh of Exchange and Pro-
missory Azotes, 193.
(b) On Bonds and Sealed Instruments,
194.
(c) C Common Counts, 194.
(d) . Several Claims, 195.
(e) In Other Actions, 196.
3. JtFtseellaneous requisites of. *
(a) Statement that Defendant about to
leave, 196.
(b) Other Cases, 197.
4. Jurat and Commissioner, 19S.
i Writ OF Capias, 198.
j Al'l'I.IOATION FOR DiSCHARfiF, 01! TO SET
ASIDE Arrest.
1. General Principles, 200.
2. For Defects in Affidavits, 201.
3. For other Irregidarities, 202.
4. Waiver of Irregularities, 203.
5. (In Affidavit denyint/ intention to Leave,
204.
(i. Where one of Several Defendants is Dis-
charged, 205.
Practice in Moving, 205.
! 8. Other Cases, 200.
Id. Under Atteu-hment—See Attachment
OF THE Person.
^0, U« Habeas Corpus— See Habeas Cor-
pus.
iSKwsD Arrest and Arrest on Alias
Writs.
\\. After Disrhanie or First Arrest set
aside, 208.'
12. (Jtlur Cases, 209.
JCUSTS UNDER C. L. P. ACT, s. 322.
11. Affidavits on Applications for, 210'.
Other Cases, 210.
|Privileoe from Arrest, 212.
Members of Parliament — See Parlia-
ment.
X. Miscellaneous Case.s, 212.
XI. Actions for wrongful Commitment —
See Justice of the Peace.
XII. Action for Malicious Arrest — See
Malicious Arrest.
XIII. Actions for Assault and False Impris-
onment— .SVe Constable— Justice of
THE Peace — Trespass.
XIV. Action for Escape— .S"*'*' Constable-
Sheriff.
I. Manner of Arrest, and by whom.
1. What amounts to an Arrest.
In an action for malicious arrest, the arrest is
not proved by shewing that the bailitl to whom
the warrant was directed went to the plaintiff's
house and told him at the door that lie had a
writ against him, but did not enter the house,
nor touch him, and afterwards left him on hia
promise to put in bail the next day, which he
did. Perrin v. Joyce, G 0. S. 300.
The deputy sheriff, having a ca sa. to arrest
a party, went to his house with the writ in his
possession for that purpose ; he told him of the
process, and being assured that a friend of his
(the debtor's) who was then from home, would
go his bail, he returned home and did not insist
on the debtor coming with him. Afterwards the
sheriff went again to the debtor's house and told
him, without lading his hands on him, that he
must come to his (the sheriff's) house, which he
did, and remained there till discharged, but not
under actual constraint : — Held, that under
these facts there had been no legal arrest of the
debtor on the first visit of the sheriff : that the
merely insisting on the debtor going to the
sheriff's house on the second visit, did not of
itself constitute an arrest ; but that the debtor,
in having gone to the sheriff's house as desired,
and having remained there till discharged,
though without constraint, had been duly
••'•wsted. Mcintosh v. Demeraij, 5 Q. B. 343.
A bailable capias having issued, the deputy
sheriff went to defendant and asked him to find
bail. They both then went in search of bail,
and a bail bond was executed: — Held, an
arrest. Morse v. T.rl-jl, I P. R. 369.— P. C —
Richards,
2. Power of Private Individual to Arrest.
A man assaulted l)y a person disturbing the
peace in a public street, may arrest the offender
and take him to a peace otlicer, who need not be
the nearest justice. Forrester v. Clark, 3 Q.
B. 151.
A private individual cannot arrest on suspicion
of felony ; he must sliew a felony committed.
Ashley v. Dundas, 5 O. S. 749.
When a private person takes upon himself to
arrest without a warrant for a supposed offence,
he must be prepared t'j prove, and affirm it une-
quivocally in nis plea, that a ieiony has been
committed ; strong suspicions of it will not do.
McKenzie v. Gibson, 8 Q. B. 100.
1 1
i;
'■ Pt^
m\
^m
:.m
T
191
ARREST.
;i [ i
?!'
ti "
:i! ^ r
II, In what oases Arrest can be made.
1. Foreigners.
Where both plaiiitiiT and tlefeiulaiit wore
inhabitants of a foreign country, and had come
together into this province to remain only a few
liours, and during their stay here the plaintiff
made the usual afhdavit and arrested the defend-
ant, tlie arrest was held to be regular. A'"//-
nor V. JIamilton, M. T. 2 Vic.
Semble, that it is contrary to the policy of our
laws of arrest to permit one foreigner to follow
another to this country, and arrest him for a
debt contracted abroad. Frear v. FcniiiMm, '2
C. L. Chamb. 144.— Bums.
Held, that the affidavits in this case did not
sufficiently shew the plaintiff and defendant
to be foreigners, and therefore that the arrest
could not be objected to on that ground.
Romberg v. Steenhock, 1 P. K. 200.— C. L.
Chamb. — Bums.
The plaintiff, a merchant living in Toronto,
arrested defendant, lately from England, on a
bill accepted by him there. The arrest was
moved against, on the ground that defendant
was Lsre for a temporary purpose only, and on
business ; but the plaintifif gv/a reason for be-
lieving that he had absconded from England to
avoid proceedings there on this same bill, and
the judge under these circumstances refused to
interfere. Brett v. Smith, 1 P. R. .S09.— C. L.
Chamb. — Richards.
Defendant applied to be discharged from arrest
for a debt contracted abroad, on affidavit that
both plaintiff and he were foreigners, that he
had come to this province very lately, and had
never any residence or home here ; but it was not
shewn under what circumstances or for what
purpose he came, whether as a transient visitor
or intending to become a resident, and on this
ground the application was refused. Blunwnthal
V. Solomon, 2 P. R. 51. — Chamb. — Hagarty ;
3 L. J. 12.
The mere fact that both plaintiff and defend-
ant are foreigners does not of itself warrant
setting aside an arrest. Palmer v. Rodgers, 6 L.
J. 188.— C. L. Chamb.— Richards.
See Terry v. Comstod; G L. J. 235.
2. Other Cages.
A plaintiff cannot arrest for purchase money
paid for an estate conveyed to him by deed,
upon the ground that the defendant, the vendor,
was not lawfully seized ; he must resort to his
covenant. M'Lean v Hall, Tay. 491.
An order to arrest was refused in actions for
malicious arrest and libel. O'Connor v. Anon.
and Darcus v. Hall, T. T. 2 & 3 Vict.
Where a judge's order was necessary to hold
to bail, an arrest could not be made in a district
court. Ferris V. Dyer, 5 0. S. 6 ; Smith v. Jarvis,
H. T. 3 Vict.
7 Vict. c. 31, abolishing inlprisonment in exe-
cution for debt, applied to cases where judgment
was obtained before it passed. Bank of British
North America v. Clarke, 1 Q. B. 1. Upheld in
Bell V. Ley, 1 Q. B. 9.
A defendant, committed to prison on racsm
process, and charged in execution in the cai* I
without a now affidavit, before 7 Vict, c, 31 ;_
Held, not entitled to his discharge. Haniiiui
v. Mingay, I Q. IJ. 22. See C. S. U. C. c U
s. 12. '*'
A summons to set aside a ca. sa. on the grouni
that defendant had been arrested for a sun
under £10, exclusive of costs, was discharged oj
the facts stated in this case. Baker v. M,/;
1 C. L. Chamb. 73. — Macaulay.
Under 12 Vict. c. 0.3, a bailable capias coulil
not issue in a suit commenced by summoiiil
Kelly v. Kelly, 1 (!. L. Chamb. 281.-BurBi|
After that Act commissioners could not mmi
bailable process under 2 Geo. IV. c. | s gl
Mr flit yr,' v. lIitt.-ion, S il B. 560. ' '
10 & 11 Vict,
persons in execution
H\
c, 31, s. 3, applying only J
tion for debt : — Held, not i,,
uot dl
include a defendant in custody on a ca. sa. iii
an action for seduction. Merrall v. FmmwX
1 P. R. 230.— C. L. Chamb.— Draper.
The 8 Vict. c. 48, except s. 44, was contiaBei|
in force by 18 Vict, c, 85, till the 1st of JulJ
1856, and no longer. The C. L. P. Act, whiiil
came into force on the 21st of August, 18os|
enacted that from the time when it should t
effect, the 44th section of 8 Vict. c. 48, si
be repealed : — Held, that this 44th section coil
not be considered as continued by the C. L P
Act, though, no doubt, it was so intended, a
therefore no arrest could take place under i|
after the 1st July. Barrow v. Capreol, 2 P. R 9
C. L. Chamb. — Burns.
Semble, a person in custody on a crini
charge, may be detained in a civil suit. Pak
V. Rogers, G I^. J. 188.— C. L. Chamb.— Richarf
Arrest on notes secured by iuortg.u'e asci
lateral — action fi i* malicious an-est. Illuhki
Patterson, 15 Q. B. 180.
IV. Affidavit to hold to Bah.,
1. How Intituled.
C. c. 24, 3. C]
in the District C<iii|
[See now C. S. U
An affidavit intituled
instead of in the Q. B., is irregular, not v(
Sanderson v. Cinnmings, M. T. 3 Will. IV.
Arrest under the statute allowing an ai
under an alias writ, on a testatum writ ii
to a different district. Affidavit held ri|
intituled in the cause. Class v. Coklewjh,
3 Vict.
Where there is a cause pending, the afi
must be intituled in it. Brown v. Palmt
Q. B. 110.
Where the commissioner
" A commissioner in B. R., &c.," it is uooH
tion that the affidavit is not intituled in i
court. Ellerbyv. Walton, 2 P. R. 147. -P|
— Robinson. Followed in Molloy v. Shm, I
R, 230. — Chamb. — Richards; and in Dm
Bushy, 5 P. R. 356.— Chamb.— Gwynne.
Where the order for bailable process wasii
upon two affidavits, one intituled in the IJ. I
and the other not in any court, and the pur
|«ftfiwaril.s JHsucd froi
lu't iiside witli costs.
I-C. L Cli.iml). -Hi,
A teclinica! objucti(
avit iiiKHt he made in
I bail fxpire.s. An o
I not intituled in any
''aimer *'. Iti'tlgirn, G
-Kiolmrils.
The name of tlie c(
he atliilavit at the tini(
Hlmni y. Kni^id, .'J
Sagarty.
The affidavit to hoKl
1 a court or cause, or o
[together witliout a (
!?/,/(■/• V. \Vigl<; r. P. II. i
/'(//■//( (inJ CiinlenlH ,
Ha) On Bill-i of K.irhuiig
Jliist statu it to be "p;
,Tay. W?.; AndrusH
Must state the tlefault
y/ww V, Hat/our, 5
[Mii.'ft sliow the amount
Swn, Xortoii v. Lutha
iTIiat the defeudant wa
Tin due on a proini.ssor
fuiifiici-iiinit (if this .tiii]
11 niaile .several tlays b
lielil insufficient) as
srtaiu, Clarke v. C/ur
Kn affidavit for several
I state tlie aggregate sui
p note must be mention
les should be set out in v
imake the affidavit defec
'K. 158. P. C. -Burn
iu affidavit by the endt
k tliat it was endorsed
h'lwm. (/ItiAi V Bal>i/, 1
M defendant is indebte
key on a bill of excliangt
Inient of £560, not sayini
■d, sufficient. Paioson v.
. L Chamb. — Draper.
le affidavit stated the
[daynow past," and preg
J nonpayment; and thei
\n\ sums for which it w
Ml, concluded,-" and th
1 of money are now just:
iforesai.! :"-Held, tliat
m that the bill was still
[efendant was stated to L
►nt of the bill, and in £5
ley aforesaid, "forinteres
Iprmcipd money and inf
; that the claim for in
Py stated. lb.
[issuicient to describe
13
193
ARREST.
194
LtcrwaiiU issued from the C. P., tli(
liit iwi'lo witli C(jsts. Sirift v. ./-,».■.■.,
I C' I'- Cliiunli. -KK^Iiarils.
P., the arrest wiw
(i L. ,1. (i:».
r If litviiie 111 mi' >->■"■ " ...""« "" •"
. arti.liivit lit the time of auing outtlie process.
lZ, V. K'n^'l, :» i'- !'• llO.-Chaiub.~
A tfcliiiic:il objeetioii to the form of the atli-
A vit imitt lie made before the time for puttiug
1 ■ il fxiiiren. An objection tluit the atfidavit
],u,t intituled in any court, is such an objection.
'"/tl V. /•"</,</'/.S (! I- .). 188. -C. L. Chamb.
Kichanla.
Xli,. ntimc of the court must be inserted "•
le
IlllHIII
iagarty.
The artidavit to hohl to bail may be intituled
court or cause, or one of them, or it may be
ni-ether without a title. J>tii,in- v. i?«.>f/(//,
t'.n-fii <ii'<> ''onli'ntf of ill I'lirlinihir Cuiix.
ml On Billf of E-irlniDiji' or /^roiiiixiiiir!/ Noli'.'t.
[Must state it to be "payable." SmlHi v. Siilli-
Tay. 4!'3; Andnixx v. h'ilflih; l)ra. (J.
hiust state the default of the maker or aecep-
L Itosx V. Jialfoin; 5 O. S. 083.
Ililuat show the amount for which the note was
kiwii. Xoi-lon V. Latham, M. T. 3 Vict.
iThat the defendant was indebted in a named
1 due on a promissory note, diii' Ixfoff the
smncmii'iit of tli'm Kiiit, the attidavit liaving
L made several days before the writ issued,
held insutticient*, as being equivocal and
icertaiu. Cladv v. Cltirki; 1 Q. B. 395.
In affidavit for several different notes need
istaie the aggreg,^te sum, but the amount of
|h note must be mentioned. The dates of the
tes should he set out in words, but figm-ea will
I make the affidavit defective, lioix v. Ifurd,
,R. 158. P. C. -Burns.
ill affidavit by the endorsee of a note must
' that it was endorsed to the plaintiff, and
h'hom. ^'A(.« V Bahii, 1 P. H. 274 -P. C —
iiper.
Tiat defendant is indebted in £560 of sterling
liey on a bill of exchange drawn, &c., for the
nieiit of £560, not saying of what money : —
id, sufficient. Paioson v. Ihdl, 1 P. R. 294.
,L Chamb.— Draper.
^lie affidavit stated the bill to be "payable
[day now past," and presentment on the day
J non-payment ; and then, after stating the
Iral sums for which it was intended to hold
il, concluded,— "and that the said several
!of money are now justly due and payable
(foresaid :"— Held, that it sufficiently ap-
e<l that the bill was still unpaid. Ih.
lefendantwas stated to be indebted in the
nnt of the bill, and in £5 198. 8d. of sterling
ley aforesaid, " for interest thereupon, being
■principal money and interest the sum of
8d. of sterling money aforesaid :" —
that the claim for interest waa inauili-
kly stated. lb,
is sufficient to describe a note as being
[thep^nent to," instead of "payable to,
llaintiffs. lb.
An atlidavit stated that defendant was in-
debted to deponent in £1217 16s. 5d. of lawful
money of Canada, upon and on account of a bill
of exchange for £1UOO sterling (describing the
bill) ; and that the sum of 19s. sterling was
paid by defendant for notarial charges in pro-
testing the same : — Held, that the amount due
for the bill was sufficiently distinguishable from
the notarial charges, which ought not to have
lieen included ; and therefore that the arrest
shouhl not be set aside, but the amount to take
bail for should bo reduced by deducting such
chafjges. BMt v. Smith, I P. R. 309. -Chamb.
— Richards.
The plaintiff need not state expressly that he
is the holder of the bill at the time of making
the affidavit to hold to bail. lit.
The affidavit must shew that the note is over-
due, cither by directly stating the fact or by
giving the date of the note and the time it has
to run. Rurey v. Carman, 3 L. J. 204 ; Ro^n
V. Hard, 1 P.'R. 158.—Chand).— Robinson.
An affidavit stated that defendant was in-
debted to the plaintiff in lj!2,615, being the
amount of four several promissory notes made
by defendant, bearing date the 6th of February,
1866, for ^53 75 each, payable respectively at
forty days, sixty days, three months, and four
months after date ; and that said notes were
given by defendant for goods purchased by
defendant from plaintiff. Un motion to set aside
the arrest, because this affidavit did not shew
to whom the notes were payable, nor in what
character the plaintiff held them : — Held, that
it was sufficient. Joiic't v. G'rcxs, 25 Q. B. 594.
(b) On BomU and Sealed fnnlriiments.
That the defendant is indebted to the plaintiff
upon a cei-tain bond or obligation, is insufficient.
Prior V. A^elson, Tay. 176.
An affidavit on a money bond must shew to
whom the bond was made. Case v. Mc Veigh,
T. T. 3 & 4 Vict.— P. C— Macaulay.
When the debt arises on a written or sealed
instrument, the affidavit need not set out the
date or other particulars, if it show distinctly
the nature of the debt and the instrument on
which it accrued Clarke v. Clarke, 3 L. J. 149.
— C. L. Chamb. — Robinson.
(c) On the Common Counts.
"That the defendant was indebted to the
plaintiff in the sum of £50 for the use and occu-
pation of a certain tenement " — Held, sufficient.
Ferguson v. Murphy, Tay. 206.
On account stated, need not say that the
account was had. Blatk v. Adams, E. T. 3 Vict.
For work and labour done, without stating a
request, is defective. Hall v. Brush, T. T. 3
& 4 Vict. — P. C. — Macaulay.
For goods sold and delivered, must shew
defendant's request, and the request being laid
to other sums will not supply the defect. Wat-
kins V. Liebshitz, H. T. 7 Will. IV. But this
case is overruled by Ogilvie v. Kellv 4 Q. B.
393.— P. C— McLean.
1 V'li
r:-i
■1
; m
U:i:ii
■ir
...mi'f|^
I' '
195
ARREST.
li)(]
'I ,':■!
It! I ;'
All attiilavit of debt wheroon a judge's order
to hold to bail wan rotiiidi'il, stated simply
" that tlu! defendant i.s justly and truly in
debted to uiu (the plaintill') in tho Huni of
1)1259. IK), lor niL'dicinL', niodiual attendance, and
Herviees, and nmney lent, a detailed account of
which I have some months ayo delivered or
caused to 1j« delivered to him ;" without aver
ring either that the medicine was delivered, the
medical attendance and services performed, or
the money lent by the plaintiti' to the defendant,
or at his recjuest: Held, following llandley c.
Franchi, L. R. 2 Kx. 'M, attidavit insiithcient.
Semble, that the allldavit would be surticient,
without the words "at his requeMt. " DUmtnnd
v. Curtwriijht, 22 C, 1*. 491.
It must bo shewn that tho goods were sold
and delivered by plaintiti' to defendant. McDoii-
,1(11 v. Kdhj, 4Q. B. .'J94. -I'. C. -McLean.
Tliat A. and B. are indebted for money lent
to A. : — Held sutlicient to authorize tlie arrest
of A. Qutere, whether it would have supported
an arrest of both. Ellirln/ v. Wnllon, 2 V. i\.
147.— F. C— Robinson.
(J) For si'viral Chilimt.
An affidavit for money lent, paid, and on an
account stated, need not state tho sum due on
each account. Taunali'ill v. Monicr, 2 O. S.
449 ; Black v. Adumn, E. T. .3 Vict.
An affidavit for £80, on a promissory note for
that amount, and also for goods sold, not speci-
fying the sum due on each account, nor whether
the goods sold formed the consideration of the
note : — Held, insufficient. McKinvAe v. Rail, 1
y. B. 396.— P. C— Macaulay.
An atlidavit for fGl.S, stated to be due as a
distinct sum for each of three different causes of
action, bnt concluding "that the said sum of
t'(J13 is still due and owing to this deponent by
the said T. E.,''&c. : — Held, insufficient. Jiarrij
V. Eccks, 2 y. B. 383.— r. C— Hagerman.
Where more than one delit is mentioned, and
they are not combined and the aggregate stated,
the affidavit must clearly express the plaintiff's
apprehension that defendant will leave with
intent to defraud the plaintiff of the several
debts mentioned ; any uncertainty as to which
he apprehends he will be defrauded of will be
fatal. Brown v. Palmer, 3 Q. B. 110.
An affidavit th.at defendant was indebted in
i'lOO on a note, and in £28 for goods ; that the
two sums amounted to £128 ; and that the depo-
nent believed the defendant was about to leave
Upper Canada to defraud him of the said debt,
(instead of debts) : — Held, sufficient. Bombertj
V. Skeitbock, 1 P. P.. 200.— Chamb.— Burns.
Where the affidavit set out a cause of action
for goods sold and delivered, and also upon an
executed contract for the delivery of certain
lumber, but stated only an aggregate amount
due : — Held suHicient. Mf/iiti/re v. Brown, 4
L. J. 85.— U. L. Chamb.— McLean.
When some of the demands are wel' and otherri
badly stated, the affidavit is not b: a as to all ',
but the defendant will be released un putting in
bail for the sum properly sworn to. Rons v.
Hurd, 1 P. R. 153.— P. C— Burns. See £re«
V. Smith, 1 P. R. 309, p. 194.
(e) In other Aelionn.
An affidavit that the defendant "took pmsis
sion of the plaintiff's goods, and still kt'f{i.
poases.sion of them " iM sufficient towanaiitai,
order to hold to bail, hiijriiliuin v. Ciiiiniiii.
ham, Dra. 1 1(>.
In an action by husband and wife fur a v.Hul
slander of the latter, not actionable withuui I
special damage, the affidavit stated only tlu
persons not named had in eonsei|uen<je \\\\,\
drawn their cu.stom from her husband, wjin w^j
a tailor. The learned judge e\prcbs<'<l >.iiiiiii.e|
and regret that an arrest should havu IjagJ
ordered on such statements, but set it a.sidt; i
the ground of irregularity only AUimH\\
K,-n^it,'AV. R. 110.- Chand).- Haijarty.
3. MUci'lhineoHH r^'ijittiiltfM of.
(a) Statement thiit d'/emldnt ahmit to Inin.
" That the plaintiff had reason to beliew, L
instead of "is apprehensive tliat the tlffembtl
was about to depart this province witiiuiit \m\
ing,"&c. :— Held, insufficient. Chnnic v. ■S'/m».l
Tay. 449.
Where an application is made for an onlor tJ
arrest, the affidavit must contain the (mlinanl
conclusion, that the deponent is apprchtiiisivc(i|
defendant's departure fi-om this proviuue. 11'/
wf V. Bloor, E. T. 2 Vict.
" That defendant will le.ive the province (
Canada" : — Held, sufficient. Bron-n v. Pun-
Q. B. 98.— P. C— Jones.
Held, that the affidavit under C. S. U. C, J
24, s. 5, must shew facts and circumstance til
satisfy the judge that there is good ami pioljalil
cause for believing that the debtor, unless furti-l
with apprehended, is about to quit, &c. 7>,»;f
V. Eaaterbrook, 10 L. .J. 240.— C. L. Chaml),-
A. Wilson.
Held, that an affidavit stating depoiiciiiil
belief that the debtor, unless held to bail, wiM
quit Canada, not saying when, or assiming atl
special reason for forthwith apprehending liia|
was insufficient. ll>.
Held, that the facts and circumstances
before the county judge in this case, to satisSJ
him that the debtor had at any time an inttif
tion to quit Canada, were insufficient. ///.
On an application to review the decision ii\\
county judge, it was held that defendant dibI
be discharged ; that, the denial of the debt aloi
would not be sufficient, though the facts i
circumstances relating to the claim niiglil
important to consider as affecting the pioltaljilit
of his absconding ; but that an apprehinsido \
his leaving at some future period could not «
rant the arrest, for the judge must bo satisi
that he is about to leave unless fortluvitii appo
hended, that is, to leave forthwith. lh>rt;>\
Ftoicer, 3 P. R. 62.— Chamb.— Burna.
Semble, the judge to whom an apijlieatioij
made for an order to arrest has only tu be fill
fied of the existence of a cause of action, J
and an intention on the part of defendutl
abscond with intent, &c. Darner i. IkAj'
P. R. 356.— Chamb.— Gwyime.
See Part VI. 5, p. 204.
t statement of the sum
fvitiatc; but the amoui
11 te taken was orderei
Itrue sum in currency, a
Pnount given in the affid,
m V. ffcd/, 1 p. II
litdefemlantisabouttoL
•fraud the plaintiffs of "
', hougi, the fonn give
«f said debt." /ft
Hil state the name of
^7'f't.«l'ew facts su
llnfthejudgcthisisa
& r?"'?."^ the sta,
"'"• " b. J. 14.— C. L. C
197
ARREST.
198
(b) Other Ciuen.
\ii iirreat was sot aside, whure rlufendont,
those name was "Patrick," was called "Peter"
.„ . :i — I — -.L BoiAford V. Stfinnrf,
itbe affidavit and writ.
f. 11 Geo. IV.
[ Deponent's name, must bo set f^
L lengtli. Rkhnrdmii v. XorHin
Anil liis Christian names muH
II Wi-.iliiivr V. Hiiniliiiiii, T. T,
forth in words
■opr, Tay. 3.TI.
must 1)6 given in
3&4 Vict.-
k'exatiotift or
nil.
\ ('. -Macanlay.
The conclnsion negativing any v
jiaiicious motive reqnircd l>y 2 (Jeo. (\'. c. 1,
fs i.s not nece.s8ary where a jndgo's order to
Colli to bail is obtained. MrLnrlilan v. Winr-
(„„, 5 0. S. 3.S.3.
•Vnd such conclusion is dispensed with by
ivict. c. 48, s. 44. Lci v. MrClun; 3 Q. B. 330.
It is irrogidar to make an affidavit of d^bt, or
jjuc a writ, on Sunday ; and in an affidavit of
|el)t the proper place of residence of the depo-
«nt must be stated. Halt v. /irimh, T. T. 3 k
fvict.
I It is no ground for aettinj' aside an arrest that
ivortl "malicious" is spelt with a "t" instead
in the affidavit of debt. Oardetu'r v.
H. T. 4 Vict. —Jones.
of 7
Vict.
31.
lormon,
Construction and eflfect
w \: Schofeld, 1 Q. B. J.
The affidavit to arrest in a special case reeiuir-
the sanction of a judge to the issuing of the
it, need not follow so strictly the form pre-
ibed by the act, as where the creditor may
out the capias as of right. Bardoii v. Cnw-
I Tay. 486; Neven v. Butcharf, 6 Q. B. 19(5.
n afliilavit that the plaintiff "had reason to
icvc," not "good reason :" — Held bad, and
ist set aside. Meyers v. Camphdl, I C. L.
,b. 31.— Macaulay.
Qiisre, whether it must shew that the dej^jo-
^t is the attorney or agent of the plaintiff.
hjxrlain v. Wood. 1 P. R. 195. — Chamb.
Burns.
Ihe affidavit statetl the amount in sterling,
to wit, the sum of ,£704 6s. 7d., or
jeabouts, of lawful money of Canada :— Held,
I sufficiently precise and positive ; but it is
pcient to state a debt due to a plaintiff in
pand in sterling money only, and the insuffi-
; statement of the sum in currency would
[vitiate; but the amount for which bail
lid lie taken was ordered to be reduced to
[true sum in currency, as it appeared that
nount given in the affidavit was excessive.
m V. HidI, 1 P. K. 294.— Chamb.—
icr.
kat defendant is about to leave Upper Canada
Ifraud the plaintiffs of " their said debt," is
tlinugh the form given by the statute
"(/ic said debt." Ih.
Buld state the name of the pai-ties infor-
, but if it shew facts sufficient to satisfy
bind nf the judge, this is sufficient ; it need
ppy the words of the statute. Mclnnea v.
|li«,6 L. J. 14.— C. L. Chamb.— Hagarty.
I aindavit shewing sufficient to satisfy the
I that the defenda'\t, unless apprehended,
'hvitb about to leave, will be sufficient,
though it is only sworn that defendant is about
to leave Upper Canada. Sinf't v. doner:, ($ L. J,
03— C. L. Chamb. -Hichards.
An affidavit made by tlio aa.signoo of the
plaintiff's estate, that the dufindant is indebted
to the estate and di^pDncnt a^ assignee thereof,
&e., and that ho ia about to leave, &c., "to
defraud the deponent, as .snoh assignee as afore-
said, of the saiil debt :" Held sufficient. Baw-
Innj V. Sidtiiiinii, 2 P. K. 51.— Chamb. —
Hagarty.
It is not necessary, iiiiilcr iW. I12tli rule of
T. T. 20 Viet., tliat ;'in allidavit to hcdd to hail
should be divided into paragrajihs and numbered.
Ellcrl>i/v. )l'(r/^,l«, 2 P. K. 1 17. -P. C.— Robin-
son.
4. Jitrid mill. (JiJiiiii\i.i4(jiii r.
Order to hoM to bail granted on aflirmation
ma<le by a Quaker in New York, properly veri-
fied, &c., taken before tlie city recorder. Smith
V. LdU'rciire, 3 (). S. 18.
Where a <lefeudant was arrested under a com-
missioner's writ, and the commissioner's name
was not attached to the jurat at the time of the
arrest, but was placed there before the motion to
set the writ and arrest aside, the court hold
the proceedings irregular, and set them aside
with costs. Black v. HaWdaij, T. T. 5 & 6
Vict. — Macaulay.
Under 7 Vict., c. 31, the jurat must state
that the affidavit was duly read over and ex-
plained to deponent, and the omission of the
word "duly" was held fatal. Thm/er v. Ifrndeii,
1 Q. B. .S3u— P. R.— McLean.
During a cause an affidavit to arrest defendant
cannot be taken before the plaintiff's attorney.
Burijery. Beamer, 3 Q. B. 179— P. C— McLean.
But an affidavit before action commenced may
be. Brett v. Smith, 1 P. R. 309.— Chamb.
Richards.
In moving on this ground it should clearly
appear that he was attorney at the time the affi-
davit was sworn. Deniill v. Etuterbrook, 10 L,
J. 24()— C. L. Chamb.- A. Wilson.
V. Wnir OF Cai'ias.
A capias cannot issue upon a verdict in, tres-
pass without a judge's order. McLrod v. Bvlttuv,
Tay. 273.
A true copy of a nou-bailablc process must bo
served on a defendant. Scufl v. Hcfernan, 5 O."
S. 321.
Quierc, whether it is auilicient, under the first
rule of H. T., 13 Vict., to state in the margin of
a writ the count if where it wiis issued. The
matters directed to bo endorsed on a capias by
12 Vict., c. 63, schcd. 3, may be at the fool of
the copy served ; and qua:'ro, whether they may
not be written at the foot of the original, instead
of being endorsed. Chamlierlain v. Wood, 1 P.
R. 195.— ^Chamb. — Burns.
Where in the original the warning to defend-
ant was at the foot of the writ, and in the copy
was endorsed, though in the l)ody of the copy it
was referred to as "hereunder:" — Held, no
objection. The signature of the clerk of the
!. a
! 1
i :;..aa
T^
199
ARREST.
200
i I I
ri
■i":!
^i
prncoiH wild iilucud at the foot of thu warning,
not of the writ, and also to a ineniorandum m
the inarain that the writ had been ii«ued by
him :— Held, a HUtHiitnt signature of the writ.
Oilmourv. McMillan, 2 P. R. 108 ■, 3 L. J. 71.
C, L t'hamb. — Robinnon.
The name of the ottlcor who issues a writ in
the margin i« not "a memorandum or notice
Bubscrilierl to, or an endorsement on the writ,"
within 12 Vict., c. C?, s. 24, and therefore the
omission of it in the copy served is not fatal.
JfintiH V. Hiioh, 2 V. R. 42. — Chamb. —
RichardH.
It is no objection to an arrest that the copy of
the writ served iloes not contain the name of the
clerk of the crown, or a mark [L.S.] to shew
that the original was issued by the proper autho-
rity, and sealed. Ciirrnl v, Light, 1 r. R. 1.37.
Chamb. - Burn...
The date of the endorsement on a capias, given
in 12 Vict., c. (i.S, sclied. 3, means the date of
the judge's order, not of the attidavit. Where
the arrest is on atlidavit no date need bo endorsed.
Homlin-ij v. Ntcfnhock, 1 P. R. 200.— Chamb. —
Burns.
The omission to endorse upon the writ the
day of execution thereof, as <lirccted by the rule
of court, is no ground for setting aside an arrest.
Quiirc, whethei' such endorsement should l)e by
the bailiff who makes the service, as he is not
the person who has the execution and return of
the writ. MrSiihr v. Mni-ti)!, 1 P. R. 205. -
Chamb. -Sullivan.
It is sulficient to serve a copy of the writ
immediately after an arrest ; anil if defendant
refuse to take such copy, he cannot afterwards
object that it was not served upon him. lb.
See also Hfth<riiiijt<m v. Wbflan, 1 C. L. Chamb.
163. — Robinson.
bail by affidavit need
V. Hall, 1 P. R. 204.—
The direction to take
not be dated. Pairnoii
Chamb. - Draper.
A capias addressed to the sheriff of the united
rdiiiUicK of York and Peel, and directing him to
take defendant, " if lie shall bo found in your
fount I/," is sufficient, the latter sentence being
surpliisagc. /inlt v. Swilh, 1 P. H. 300.—
Chamb. — Richards.
One of several defendants, .Stephen Nathaniel
( 'ampbell, v/as arrested on a capias in which he
Wfis called Samuel N. Campbell ; and on the
copy nerved there was no directi(m to take bail.
He was taken to the sheriff''s office, .and about an
hour afterwards was served there with another
copy, on which was endorsed, "take bail for
£319 lis. .3(1.," not .saying that this was the
sum sworn to, nor w.os this stated on the original
either. The next day lie was served in gaol
with a third copy, on which was endorsed the
same direction, with "by affidavit" added. As
to the misnomer, the pl.aintiff showed that the
defendant had reiiresented his first name to be
Siimuel, but did not show that he had said this was
his only name, or that any enquiries had been
made to learn what his second name was : — Held,
arrest bad on both grounds Peijy v. Campbell,
1 r. R. 328.— Chamb.— Robinson.
The copy of a capias need not show the debt
on which the order authorizing the writ issued ;
nor need the writ show the name of the rnunty
judse who made the order. Sirij't v. ,/onejt, i]]'
.1. 63. -C. L. Chamb. -Richardw.
On an application to set aside an arrcnt for ^
variance between the original writ and tln' ((,t,,
served, the writ was amended so as to I'diitufjj,
to the copy. Damur v. Huttby-BlwH: v. Wini, \
a P. R. S.^!.— Chamb. (iwynne, '
VI. ArrucATioN ton Disciiaiiok im i„
ASIDE A|(I1K..'<T.
1. Geiieml Princijilen.
Under the old law neither the oxistinip A
the debt, nor the circumstanceH under whi>|i J
was contracted, nor the conduct of tlin di iij,|
ant, couhl bo tried upon affidavits for the twi
pose of permitting an arrest, if thoalliduitJ
debt and intention to leave the country vA
a positive one. Freur v. Fenjunvn, 'J i' j
Chamb. 144. —Burns.
Where defendant, being a married wunml
and known to bo so by the plaintiff, waMnrrcstdl
on a ca. re., both writ and arrest were sctiuiij
with costs. Fokif V. Whili; 2 C. L. Cliainh. Jl|
— Macaulay.
When the writ of ea. re. i.s only a^^'.iinstty
wife, and is irregular against her, tli>j hiiiKui
cannot bo compelled to appear. ///.
Quwre, when one judge on astatenii'iitdthJ
has ordered a ca. sa. to issue, can anotlitr juilJ
taking a different view of the same fnct.s, intd
fere without any now matter being shewn? '..
question whether any debt is due or not willj
entertained on an application to diseharjjcd
order for a ca. sa., but unless a very dear c
is made out, the court or judge will not ints
fore. Mc/nnrtt v. Mackltn, (i L. .1, II. (.
Chamb. — Hagarty.
There must always be great relmtancc |i<i^
aside the order of a county judge direLtiiigli
able process, when there are reasonalilc gMnj
from which he might draw the conohiHidii t
defendant was about to leave. Swi/'i v, J'm\l
L. J. (53.— tJ. L. Chamb. -Richards.
On an application by a debtor arrcatuil iiml
a capias for his discharge, the judge ni.\v rcce
affidavits denying the indebtedness, ur hiij
tcntions to leave, or any other facts iclinl ii[j
in plaintiff's affidavit. T)imiH v. HiiArki
10 L J. 240. -C. L. Chamb.— A. Wils.m.
On an ap]>licatif>n t<> set a.sidc an itrrc.^t iiil
22 Vict. c. 0(i :— Semble, thfvttliec.xistt'iiaiil^
cause of action may be enquired into, Imt ll
the absence of it must lie very clearly slieni
warrant interference. DcImIi' v. JJniriiinIji
11. 105.— C. L. Chamb.— Draper.
There is a broad distinction, on nii ajiiilitri
to sot aside an order for an arrest, ln'tviml
order based on affidavits delieicnt in statntf
requirements, and those containing .stakii
from which different conclusions iiiiylit fairly
drawn by different judges. In a casu cdiniii^'ii
the latter head, a judge in chaiiil)erH (IccIidJ
set aside an order for arrest by a ('(luiityll
judge of competent authority, pri'furriiijl
leave it to the full court. Nor yvmU licii
fere, the evidence being conllietiii;.', ™i
ground that it was not uie intention of i
)l
jit to leave the con
yp n. i;m. -chsmb.
But an the order was
|l«n thftt warranted
Jdavit, tlie amount i
i(j(l t(i iinil was direct
orrect aiim, without sc
A jmlun of a Supcrioi
Irbcre tnu County Co
_ liicntion. A/nlloi/
lianili. — Hiuliards.
A jiiil^e in chambei
liilc Ml order to arro
Itarinx luitli parties, dju
y virtue of bis general
ire, nmy »ct aside pn
kc onU'r, for irregulai
rBliid Y. Wigit; a ]
iryniip.
I The order itself oin In
dirt, Imt after arrest dt
discli.irgo on the grou
debt, or otherwise n
idgein chaml>ers, orto t
in ({ranted the order.
(t an ftippcal from the on
|tt8 must lie shewn to y\i
prisoner, unless it I:
' manifest and vital d.
Jlterial. /Ii.
lEither of these orders
Jvaricd liy the court, wh
'ginal order to hold to
pellato jurisdiction on t
ich was before the ji
kiitory jurisdiction to re;
■ntion to discharge the j
|thi», the court hiis also
iwith a judge in chan
«rt judge who granted tl
Irgc the prisoner ujK)n
jlalfidavitsof lioth partii
BiiCTc, whether, on shew
Ion to set aside an arre
leived to support the f)rii
I cause of action. UU,,,
Ic I', m.
-■ Fur Difods la
le eoiirt will not set f
Jilanty in the affidavit.
escajied. Ktr/n- v. M,n
a motion to set aside ai
}m from arrest, it apot
It to h(dd to bail dcscri
Jencc as at ( 'anandaiLrua t
Ig omitted) :Hel,l,''d,.;e
"V. Kend, Tay 4|;j.
'liercan,i|Hdavitto hold
e(efcnd,int Wiis in the I
left here ready i„ case he
•iourt set the arrest aside,
lb/.
lenadefendant jnits in
>'lablewnt, he is i,„t »
loLjeerngtoanyirregula,
*■ H'lljour, 5 O. .S. (,'83.
Jlere the objection taken
I to bad was new in thi
ARREST.
202
b»n
J to leave the country. M'Oiijfin v. CUni',
up R. i:W -C'hamb. - Hogarty.
Rut as tho onltT waH grunted for a mm (greater
that warrantcil l>y thn allruatimi in the
i(l«vit, tin' amount for which Mfffiulant wan
.1,1 to bail wan cUrectud to Im( reUnccil to the
Brrect «iini, without setting anido the order, /h.
A iu'tg*' f f * 'Superior Court will not interfern
there tno County (Jourt judge has exircined
(ilis'Ti'''""- .'/"'% V. Shan; 5 I*. U. '260.-
i„ilj(o in chamtiors h.is no power to net
liiie ftu order to arrest, though ho nuvy, on
larinx '"'"' parties, disehargo tlie prisoner, or,
, virtue of hiH general jurindietion over prneo-
■rc nmv '"'t aside proceedings subscipient to
k. oriior, for irregularity. JJami r v. /iiinln/
TiJ/rt'-il V. in;//'', 5 P. 11. aSti. - ChamlL-
iwyniiP-
lThe order itself can lie rescindeil only by the
Rirt, liiit after arrest defendant may apply for
I (li'scharge on the ground f>f non-oxistenco of
debt, or otherwise nnon the merits, to any
dgD ill ehamlwrs, or to the (.'ounty Court judjje
kn ((raiiteil the order. Such an application is
gt an appeal from the order to arrest, and now
ti» must lie shown to warrant the discharge of
prisoner, unless it bo granted on account
iiiaiiifest and vital defects in i( original
itcrial. /''.
lEitlier of these orders may be discharged
Vvaricd by the court, which jmssesses over the
nnal order to hold to bivil : 1. A general
dilate jurisdiction on the identical material
joh was before the jnilgc ; 2. An express
Itutory jurisdiction to rescind the order, upon
Bntiou to discharge the prisoner. In addition
Ithii*, tlie court has also co-ordinate jurisdic-
awitii a judge in chambers, or the (!ounty
Brt jmlgc who granted the first order, to dis-
irm the prisoner upon merits appearing in
latfiilavits of both parties. //(.
ttuarc, whether, on shewing cause to an appli-
|on to Bct aside an arrest, ailldavits can be
(ived to sHjiport the original allidavits as to
I cause of action. Diamond v. Caiimr'njht,
It. P. 4!)l.
2. /''()/• DiJ'vds ill Affiihmtx.
lie court will not set aside an arrest for
pilarity in the afHdavit, after the j)risoncr
fescaiMiil. KivJ'it' v. Mirrill, Tay. 490.
1 a motion to set aside an order to discharge
toner from arrest, it ajipeared that the atli-
It to hold to bail ilescribed the deponent's
pence as at Canandaigua, State of New (Yoi'k
; omitted) : —Held, description insufKcient.
!v. W.W, Tay413.
fhcrc an allidavit to hold to bail was made
(Icfcmlant was in the United States, and
llctt here ready in case he should come over,
lourt set the arrest aside. tV^tHw v. Uitchiv,
1 111".
kn a (lefeiidant puts in special bail to an
Ibailable writ, he is not tliercby prevented
J objecting to any irregularity in the arrest.
(v. Mfuur, 5 {). S. 683.
lere the objection taken to an atlidavit to
■ to bail waa new in this court, and the
plaintiti' followed a form ^ven in Tidd'a appon-
dix, the arrest was set aside without costs, and
on condition that no notion should bo broucht.
//..
After removal of the prooeedingo from an
inferior court, the writ and arrest were set
aside for a defect in the atlidavit of debt, though
a similar motion was |)ending in the court
below. EmjIiKh v. Evnrll, I Q. W ;W«. 1'. C.
— McLean.
An arrest was made on the iJiid November,
s^iecial bail put in on the 9th November, a ver
diet reniltred sometime iH^fftro the I'Jth Decem-
ber, a render by the bail on the Tith January, an
application to the county judge on the 2nd
•lanuary, and the discharge of tnat application
on the 5th January, and tne final judgment given
sometime in the same month. An application,
upon a habeas corpus issued on the 8tn March,
to discharge defendant because the aflidavits
upon which the judge made his order to arrest
were not sufKcient in law, was not entertained,
as it might have Ijeen if the aflidavits had been
a nullity. Uiiiicimnii v, Aniixlroii'i, 2 Fi. J. N.
S, l(i,'). C. ],. Chamb. A Wilson.
Held, following Ellerby r. Walton, 2 I'. U.
147, not a valid (il)jcction to an order to hold to
bail, that it was granted upon aflidavits not
intituled in any court. Mollot/ v. HIkiw, 5 P. U. 2r)0.
- ( 'hamb. - Richards.
Applications having )>cen made to set aside two
orders for arrest, witu the writs and subscipicnt
proceedings, on the ground that the allidavit to
liolil to bail in one ease was untrue and insuHi-
cieiit, and in the other case was not intituled in
any court, and was iiisutticient in sulistance :
J^eld, that a judge in chambers has no power
to .set aside an order to arrest, though he may
on hearing both parties discharge the prisoner ;
or, by virtue of his general jurisdiction over
procedure, may sot asitle proceedings subsequent
to the order for irregularity in this respect.
Datuiv v. liiislti/ — lituvk v. H'tijlv, 5 P. K. 35(5.
—Chamb. — Owynnc.
3. Fuf other Irri'ijiilii.ritir.i.
Wliere the altiilavit stated that two person.^,
trailing nnder the name of "T. & Co." were
indebted, and process issued against one only,
the other being within the jurisdiction, the
arrest was set aside, ('hltholm v. Want, Dra,
490.
It was held no objection to an arrest on a ca.
sa. that several terms had elapsed after the re-
turn of the execution against goods l)efore the
ca. sa. issued, tlli/iin v. Didiloj', 4 O. 8. 111.
An informality in the wjvrrant of the bailiff
is not ground to set the arrest lunler it aside,
esiiecially where the writ itself is not produced.
//H.WI/ v. Liid; E. T. 2 Vict.
Where an arrest is made nixm a judge's order,
and no sum is specified in the aihdavit, the
2 (ieo. IV. e. 1, s. 8, as to indorsements on the
writ, does not apply. Sliyh v. Cumptx'U, 4
Q. B. 255.
Where the warrant to arrest is addressed to
two bailiffs, aa if jointly, one may nevertheless
arrest. Hetherington v. Whclan, 1 C. L. Chamb.
153.— Robinson.
im
:l
'm
If
; tV
^U(.
UOiJ
AKl'KHT.
Kl.'i
lii i'
im
VVIiuro (li'tciiiliiiil. wim urrcHltid mi it writ
isNiuil ami timtotl on tin' .Srd of .Intniiiiv, IH5'J,
mill (lii'ct'tcil ti> tlic lilicnlV iif Mil' I'liiti-il ('inm-
tirH III' Wi'litwnrlli iiml llnlton Mclil, llliii
RJIiri" till' liil. Ill" .tiiniliirv, IS.VJ, tlirrc wim iin
siicll dllii'iM' ; mill I 111' iiiickI Uiun.i'l. iiiiili- « illi
i'iibIk ; lli'lil, lliat (111' writ. iiii>{lll. I>i' iitiuiiili'il,
lull, llii> i'ii|iv mil. I'lii' jmlH'' ili'i'li"'''! I'lMiiiin-
fiiiiii (.11 Mi'irMt, oil (111- .■iiiirmlcil «iit. 1,1/1111111 V.
Hnlliroii. ',: {'. I,, niiiiiili. lOS. |)r,i|ii'r.
A \v,\i Tfiiil. til iiliiTilV til I'imiiiiil. II piU'l.y i^' iml'
in'i'^',iii.'ir, tliiiii^;li nil ri'liiiii il.'^y i>^ iiii'iitiiiiii:il in
it, I'll III i.-<'> \. /tn iiiiiii), I ( 'liy. I!(T.
An iirrrnt. «ill mil In' w'l .'i;iiili' Im'i'.himi' Ihr
ililTi'lion 1(1 (jiiii' li.'ill Im I'lir li"<n tli.in tlio niiiii
inviivn In. I'liiiiiilii // \. H fiiii/, I p. Ii. Iliii,
t'liunil'. lUiniM.
■I. W'ltir, r ii/' t in 'jiiliirilii .1.
WliiTi' !\ (li'I'cml.'cit. imivoil on llu' grntiml tlmt
tlii> ilolit w;lH p.iiil, tiiiil till' rule Wlis rcl'liscil :
lli'liI, tli.'it. Ill' riMilil nnl iiKi'rw.iiiU niiivc lor ii
ilol'ci't, in Un> adiilavit 111' ilolit. Siii'/li v. /I'n.w,
•r. T. ;« ,^ ■» Vii't. MiKiuilay.
All lu'limi lor in.'ilii'iouM hii'i'nI Ih not ;\ w.-iImt
ol' I'lijoi'tioiiM (o till' iitliilavit ii|iiiii wliii'li tlu>
iiiTi'Ht, was lumK'. /\nr.,w V, II, iH. I T. I!. •!HI.
( 'liiunii. nrii|ii I'.
Tlio rtlliiliuil, connilii'il « illi 'J (iro. I\'.,i'. I,
s. S, oMH'iit, ill iiiiiittini; tin- avi-niu'iid (liil, tin-
wiit wan not. .Hiu'il oiil rrnin any vexation.'* or
inalii'ioii!' iiiolivi' ; ami ili'l'i-mlant liavinu; put in
xpocial li.iil : llolil, (li.il lliis ili't'ii't wa-* w.iivoil,
Isitrnuc V. I'li/ir-- III,
I', n. '^\ ('Ii;iiiil.,
HuniN.
W'lu'i'i' a ili't'cmlanl put* in .iiicii;!! Iiail to an
ali.i'^ liailaUii> writ, In- may nlill oliji'i't to an
in't'niil.irilv ill tlu' arn-st, l'iii< v. Ilali'irir, M.
I', -J Viet.'
Putting in fipcuial liiil alter an applieation to
Hot asiile tlio arrest is a waiver. Ii'iic< u v. Car-
)ii,ui, ;< I,. .I.'JOI. (.'. I,. Cli.iinli. Ilraper.
(jlu.-'re, wliether ilelenilant arre.steil on a ea.
sa. having given liail (o the liniit.f is not pro-
eluik'il from a formal olijeetion to the alliilavit,
Rueh as the want of ilepouent'a aildition. L'lriini
V. lofkhin-l, 3 Q. n. •2iS.
.An nmlertaUing to " eaiise spinial hail in this
aetion to he put in for the ilefemlant in li'e
I'oiirse of law," is not a waiver of any ohjeetion
lo the alliilavit, (i.'n^n v. linlii/, I 1'. IJ. '2~\.
W (". D-aper.
Put ting in sjieeial liail.'.fter having given ahoml
to the sheritl": lleM, not to ]ireeluile (lefemlant
from moving to reseiiiil tlui onler for liis arrodt.
/foKvc.f v. ' riiiiiri; ;i P. K, (!•-». (.'hauih.
Ihirn.s.
l>oes not w.iive olijeetioiis not tuehnieal. .1/r'-
<;iqliii V. Cliiir, i P. IE. 1;M. Chamh.
Ilagarly.
The rule leipiiriiig promjit a\i]ilieation for
irregularity , !.•< not .strietly applieil in the ease of
prisoners, liiiiri/ v. h'l■(i^■^, 2 i.}. K .'t83. P.C
llagerniau.
ncfcmlant wa.s arrested on a ea. six. It
appeareil that the olliecr who made the arrest
had no warrant from the ehcrill", tliuugh he
liHHUred the plivintill' that he liud autliuritv t.
aet. Defendant hriiualit troepaRH agaiiuit i>
plaintiH, and aMueiuied damagi.'ii. Aflir .i,
aM»en!iiiieut., after gi\ing Imil to the limits, nnii
nearly two inontlri after the arrenl, he ii|i|i|||.i|
to lie ilineharged, and to have the li.ijj h^.l
I'Mlieilleil. 'I'Ih' eoiirt refiiHi'd the applii,.||i„
Khlu/ V. l'iiil/>. I(M,». H. .•|Im.
Held, tli.'it ilefeiid.'int had mil, liy pii>|iM,i,|
fur Mi'tlleliieiit, ilie , waived his right In i\ ,\it\
eliargi! Iieeaiise plaiiiliU' had not deilairil |J
time. Tiisiiii \. Mi-I,iiiii, I P. II. ,'l,'i;i
Cliamli. Itii'liarihi,
Where a party liy his own eonduit. .iinl .ulnr
MJons has jnstitied the calling him liy ,1 \\|.„|,,l
name, he eaniiot ohjeet to the line of mirli ii.ng,!
as II. misuoiiier, and Held, that in tlii.s i-^A
defendant was preeluded from raisiiii; the dlij.F
tioii. Ilrnini v. Siiiilli, I P. I!. HIT. Ch.iin'J
Uieliards. See /'i(/7 v, t'lniijilii II, | |' |l
•MH, p. I!l!t.
0. <hi .Ijliildi'il ill iiiiiii'l iiili iilltm !■! I,,ir,
(jtiiiere, should a capias, or the arrrsi tlhrJ
under, lie set aside 011 the ground that Hh'iimiJ
not at the time of making the alliilavit tn .,
to hail good and prolialile cause for lu'iiiniijl
thatthedefendant, unless forthwith appivin'iidfiil
was alioiit to ipiit Canada with intent, Ac. ;;in,il
if so, can a. judge in chamherH eiiiertiiin ik|
application':' I'liliiirr v. h'uili/ir/i, (i {,. ,1, Ifiji.
( '. I/. Chainh. Iliehards.
Where ilefendant applied umler see, ,'il »! (l
.S. I'. ('., c. '1'2, to ho discharged upon tlu' i;i\'iM'j
that he had no intontiou to quit ( 'aii;i(i,i Hiiir
intent, &c. ; and it appeared that tluMlilit lul
lieeii created through fraud ; and that In- h nisi
more ties inCauaila than elsewhere, whnvlal
would not lie criminally responsililc for his iVni
the applieation was refuseil. Trrri/ v. r.m/.' ;
»i I,. .1. 235. C. 1-. Chamli. Draper.
That section appliew only to writs of ciiii.na
the luiturc of mesue iiroeesH. Hinil: of Mmi'ti
V. Cniiiiliill, 2 I,. .1. N. S. 18. V. I,." CluiiiK
J. Wilson.
A judge in chamliers has no jinisiliitinn 1
comnuui law to discharge a ileleinhiiit onllJ
ground that ho had no intention to i|iiit ('iii:.'.|
when the ca. sa. was issued. / li.
\ party was arrested njion the alliil;ivil I'ltil
plaiutilV, stating that "from iiil'oriiiiilinu l!i,iif
received from various sources, and friimniyi>«^
iiersoual knowledge, I have good iriwni to 1'
lievo that the said .1. I(. is privately iii.ikul
away with his pro|K)rty, with the iiittiitiunJ
realizing the same and leaving Upper Vmii
and that unless the said .1. I!, is fortlmitl
apprehemlod he will leave (!anada, ami ili|«
out of the jurisdiction of this hoiinmaliK' i'i«i|
' " " and for the express ]iurp(isi' efili'intl
ing luo of the damages I may reenvir wiiiT
him." 'I'his was eontiriuod hy similar :\\m4
from two others, Uiion motion In sot .vJ
the eaiiias or to discharge defciiil.uit : ll(i
that the court could not infer that \i\m
did not sh w such facts and oirciuii.'*t:iiii'fs
satistied the judge there was reiusmiiililf
prolialile cause for liclicving that ilefomliiiil'
about to leave the province. I5iit, iiiM"
OS ilefcudaiit's owu allidavit denicil the ciii
HlKlllt'lilin, IIIIOII
lldit iiiii'i|iiivocally. III
_ uliii'li it might lie
(III (llieii) of lea\ iii^r
ilcivil llilii 1.0 lie disci
lliili' till' I'.'ipja'i and aci
lie li'li'I'li'il to as (iji
■sutM .siiili a.'i Wfiv iii.ii
p/.//, i;i('. p. .(.",;.
|l)i'frliil,'iii|. .'uvore f h.i
' lii.H .'irri'.'it, or of m.-di
nUiiiii III' i|iiiUiiii{ ( ',111,'
iliil mil. ih'iiy or c
jlriilli til nil iilil;iiuil|ir IJ
filing lliat lliese |;ir
lini'il lii.i ilificliaive,
[llclil, llial, on (lie at
K', the caii.se of action
I variant llie arrest «ei
Miilili', tliiil. ilcfeiidaid.'.i
lint ;ilirilll, to leave tli
Idiic, iiiiilrr any eirciim>i
I ;isii|i' the iii-rvMt. /),
, lO.'i. Cliaiiili. I»r;ipci
\Wlin'i iiiir iif mri rnl Di
Bli .vvinc uiiere two de
I'll a joint e.\:eciitii.
jriiii; (■(iiiiu to an arran>;ei
|t, ili.sdi.irged liim ; — fd
I'li.iHmrgeof ih,. ,,t|,|,
f,.1<», S. (kSS.
liischargu of oi„> ,,l
I'lti'Mi ijii a joint ill, l^riii,
fs. hiiiiivin, !■;. 'I', o \
liiiiifoniiality ill arre.stin
IV' imiilu a ground of ohi
miiiiitoii V. IV/ifliiii, I (
w'lMuii.
BainWr having uiTostod
mik. ii iiKirtgnge from
'■hilt it was taken only a
Ii. iliil not desire A", i
J.V Han iievertliele.s.s onl
Iv. /W, 2 P. |{. ,|7. _.|._
•"^L'" I y. 3 (a) p.
7. Pi-ilrlii-c hi ,1;
J"';Vi' ""^'-'"" W'w mai
■anil Ih,, anvMt for invgn
' tlif pijHdiier, or to \l
It'iWcaiice.led, asthocii
»i"a(li; the rule a|,H„|„tu„.
["iwinkedthiui coilM |„
1 ^^ Sr„l,tll^ ;((, ^y_ _.,y_.j
H- iiIhI to Hot nside an a
F"l II' allhlavits lih.d,
r' ; ''"''■'■'' "''w "ot ai
Pi' , hut could only 1,0
■"",/;, '•'"■• «'n't which
■"''""■« V. lluirUoH, J I
[';r-^'l"'''ty<'"»'I.laim'dol
Mill; rill,., or lefen-el I.
N'J'theallidavits. r •„,
H'l ■-Mataiilay.
■■'"^hid,., party was Z
.,,. AUUKHT.
r ^ iii„.iHiivtii'n(l,v, imtl hIicuciI I'ip'miiHlniiccH
' 'it Ih' iiilVni'il III' IiiuI Mil iiili'ii-
'ii\ iii)i (III' iiinviiii'i', (III' niiii'l,
■vii (llii'i
HI 'I ; • , ,. I I I I 1
wliiili it iiiiKlit •«' ii'li'iit'il III' 'iin' "I' mil'"
It'll) 111 IciiN iiiK 'III' ri'iivii , 111'' I'liiirl,
[,i(ivil him l" '"' ili»''liHi);«'il. Iiiit irlii I III Hi'l'
■ill' llir raiiiii'i iiiiil iiiii'Ht.. 'riiitiili'i'iHiiiii ill mil.
-ilii ri'li'"''''' '" "'< I'l'''"''''")' "'■'''■''■' ii|""' ""'■
lavit'i Hiii'l' i»'' **■''''•' '"■'■'''' '" "li'"'' '•• /''■""'" V,
Vi.i.ii, i;i<'. •■• ■••"''•
llii'fciiiliiiit mviii'i' liiiit ill' liMil mil. Ill (III' (inn
If liiH:ui'i"i(> iir III' nialuiii; liin alliiliivil., any in-
Liiiiiiii' i|iiiL(.iiii.'; < 'aiiail.i Willi iiilciit, \i'., Iiiil
u ,||,| ijiil. ili'iiy III' I'Nliliiiii any nl (In' liirtn
L,|ji III III! iililiiiiiiii;; (III' iiiili'i' : ami (In' ciiiiil,
jdiliiiK til''''' III''"'' I'll'" jmitilii'il llii' iirii'Hl,
Hiwiit lii:i iliHiliai'i'i'. ■Iiiiii I \. «//•<«..(, '>:>l). It.
[llijil, lliat I'll 'III' iiHiiliivil.;* lu'l mit, in (lii.'i
U. ihc I'aiiHi' III' arliiiii ami tin' riiriiiiiM(,anri'!i
r»':in"iiit till' airi'Ht wcri' Hiillicii'iidy iiiaili' mil.,
hiiiili', til'''' ili'i'iiilant'ii 11" II adiihivil. Uial lii'
I lint ';iliiiii(. (.11 li'avc till' iiiDvinri' wiiiilil imt
bill' miiirr any rircllllintaiii'i'M, In' Miillirii'lit tn
asiiii' Mil' nnvM.. Dili^h v. /hiirtiml, 'A V.
10,"). Cliainli. Kraprf.
m
Krrfir V.
I I'U'I
lill «!',
■lit bi
bill
Iii'1t!h|
l'r,ii''l
i\ii.i.<il
'iiiilrd
llilili.
li'in I
I on ^
Lira
W'lin-func (if wi'i ml Ihfintliiiil i it l>i ■rlmnii'il.
[iiiii.a8i^ wliriv two ili'roinlanl.M wi.'ii' in cwh-
1,11 a jiiiiit fxi'i'iltiiin, ninl tim plaiiitiir
jfiiii; cDiiiu tn an ananjti'iin'iit with ono ilcl't'ii-
Lilixuliargril liiin : — lli'M, tli;it tlii.-i u|H'ia.ti'il
('ilwliarf;i' III' the iitlnT. I.'ulifi \. M'l'ur
:,(l. S.dSS.
,„.: iliBciwi'go 111' line 111 twii (li'l'uinluiitH in
iiiti'iii nil a jiiiiit juil/^iiii'iit, iliHi^liargcH liith.
|/,'V. Ddiiii'U, v.. 'W •! Virt.
liiinfiiriiialily in aiTi'stingnni' ilcfi'inlaiit can-
|I«:mi;iiIu agnmnil nl' nlijiMtion liy tlii! (itliiT.
mt/mijhii V. Whrliiii, I ( '. I,. ( 'liainli. iri:<.
■iiisuli.
ftiintilf having UrTostcil A. ami H. on a la.
Ituuk a iimrtgago from K. and iliHi'liarj^iMl
I; IjiititwaH takoii only n« I'ollatoral Hociiiity
11. dill not (losiru A. ilinohargi'il : -Held,
kA. w;i« novurtlicIosH ontitlud to it. lii'iijn.
|v. fW, Ul'. K. M. -VA:. V\»rui.
Sco IV. ;j (a) i». 19(1.
7. Pnirlirc iti Aforiini.
iliiic a niotiiiii wan inaile to Hi't a '.di' a
iaiiil tliiMii'i'cHt fur irregularity, and m dix
\: till; iiiimmi'r, or to di'liver u|> llif liail
ItiiliL' caiiculoil, UH tlu! cam) might Ix.', tlii'
liiiailu thiM'ulualiHolutu with uoHtM, althuugh
iMiisiuki'd than (.'iiiild In' grantrd. Ai'iii
iiwSnMi, :i(). s. ;m.
ill: iiIhI to Hiit anidii an arrest on griuiiidH
111 ill alliilavitH lili'd, wan dini'liargi'd
^'tiii' lii^l'i'ct wa» not a]i|iai'i'nt frnni tini
JviU, liiil niuld only Im a.sci'itaint'd liy a
|iw' ti till! writ which was annnxcd to
.l/r'i'li'/'H V. HolVIHIHI, 11. 'I'. 7 \ ii't.
bim.'i.nil.irity riiin]ilaiiii'd of iniiHtbi! |iointt'd
» till; rule, or rid'iirrt'l to in the riilo aw
Itiiijjiu the allidavits. ''(»i/,v. Xmiiiii, 'W
jet •.Macau lay.
pnoii llie iJnd of .Septt'iubur to Het asidn a
I III! which a party was arrested un the (ith
of Aiignut : lli'lil, not too lato.
Ilinr/,,,, I r. K. I. I', «'. M,'l,.'an.
W'lirri' till' iii'i)iimd allidavit to hold to hail wax
(raiiHiiiKdil liy tlii' ili'|inl.y rli'ih of tlif crowii
III llii' rli'i'li in I'lianilii'iH, at the ri'i|ntii<t of
ih'friiilant'ii allorni'y, withoilt a jndgr'H ordtT:
lli'lil, that iiiirli oiii;inal ini).;lit ho jtrti'il niioii in
nioviiif; to lilt iiHJili' an arri'Ht, iiiHtcad of hiing a
M'lilii'ii ropy. < 'limiilii ildiii v. 11 (ir»/, I I'. I!. I!!,"!.
Clianih. ItiiiiiM,
/\ iilali'ini'iit ill an iillidavil. of a di'lrinhint
a|i|ilyiiig to Hi'l. aiiiih' an mili r lor hi'diri'Mt, that
I'l. and < '. all' iojiIi'm of tin' al)iilavit;i lllril on
whirli llii' oi'ilir III airi'!'.(. \\:i:\ giaiiti'd, Ai'.,
ini'aiiM all Iho allill,'lvi(.^ lilrd. I>i mill v. Hanlrr
hrn,d; 10 I,. .1. '.'Kl. ('. I,. ( 'hand.. A. WilHoii.
Ilrlil, that ill (hill I'aitii It wiim iiiinri riiMary to
iii't anidi' till' oidi'i' for arrcHl., an Hiilmtantially
till' Hunii' olijrrt would hi' ari'oiii|iliMliril Ity nii'l'i'ly
ili'.i'liarj'ini; tlii' driitor fioiii niMtndy, s\ liiih wjut
iliini'. /Ii.
Where the iieiHon of an iiiMolveiit delitor in
(liMeliarged from arre.it liy a foreign authority,
tliiH eoiirt will not Het aHJile an arreHt iiiade under
the |ii(ii'e,'(.H of thin eoiii t for the name eaimo of
ai'tion, it not heing hoiiml to model or rcHtrain
itn eoiiIHe of |ii'oieeiliii;; liy (hat of other eouil-
tril'.'^. llriiini \. //iiil.-<nii, 'I'ay. UIH).
'The I'oiirt refiineil to diseliarge a, deleinlant
ii|iiiii llliiig eoiiiiiioii hail, on tini ground of IiIh
|ierMon having lieeii iliHiharged from arrewt l>y
an iiiHolveiit liiw of New Sink, hiixnniili v.
l/iiinwh, 'I'ay. .|:i,S.
After an arreMt for (.'(H.'l, and while dufemlant
Win ill eurttody, all matters in did'eronee were
referred, and en award made for the jilaintill' for
Clio. 'The defi'inlaiit wan dineharged. limii)
V. I'>rl(.'<, '2(). 11. ;!)s;i. 1'. < !. Ilagermaii.
So whul'u, under Hiinilar circuiiiHtaneeM, thn
award wax for a miiiii iiayahle hy iimtalmeiilH,
one of which waH dun : Hold, that the priHuner,
without Hliuw'ing payineiit of the iiiKtalmeiit due,
wan entitled to lii.-i diNcharjje. Itnlln'cn v. Hulii-
i-'ii, r. i}. Ii. iJ71>.
I When a dofeinlant in i imtody on ineaiie
)irocenb put oil the tri.d at one aNxi/eH, and at
till' approach of the following as'ii/en after
' heing appri;£ed that the plaintili h.ul iicgleettid
to give notice of trial prensed that tin; record
nii^lit he entered low on the docket to give him
tiiMi.' to jn'oeure a N.itiiem, and it w.is ho entered,
hut could not he tried hii' want of time : Held,
(hat defendant wan not iiupei'Mede.ihle lieeamio
the ean.>4e had not liceii tried Mithili three teriii.i.
(Ittiiliiii V. Fiillir, ') <». S. ;(l.
The court will in geiier.d inipoMe tcrmn on a
defendant whim an arrest in Hit aniile for niere
irregiil.irity, or a trilling error ; hut where an
iirre.st in made for more money tli.iii in due, and
there in a nuliHtantial di^feet, or if ii iiiaiiifent
injury lian heen Hn'it.iiiied, tloi court will not
interfere. liilHiujH v. /'iijii/jf, ,M. 'I'. ■! N'iet.
A mure release from etnitody under a ca. iia.
for a given time, in order to niakearraiigunientH,
if ponnihle, to Hatiafy the debt, in not ailincharge
in law. /)i(('(',i V. (.'iliuilitiihnm, ,'i I,. .1. 'liA.-Xl.
\j, Cdiamb. MuLean.
m
^y'
>'f
m-^
207
ARREST.
%\
! ^
M ! !
Where a debtor leaves the province, and
returns upon an agreement that he is not to be
arrested, provided that lie immediately proceed
to the settlement of his estate, and the cre<li-
tors arrest him, alleging that be has broken the
condition, the court will not discharge him, but
will leave him to his action ou the iigrueuient.
Sutherland \. Afiirphy, 4 Q. B. 176. -P. C —
Macaulay.
A defendant arrested on a ca. sa. was dis-
charged from custody with costs, he undertaking
to bring no action ; and in the order leave was
reserved to him to move the court to set aside
the writ and arrest. The court discharged a
rule for th'.s purpose ; for defendant oeing
released, and precluded from an action, there
could be no object served ])y setting aside the
process. Brawn v. Brown, 10 Q. B. 393.
Right of married woman to her discharge on
application. Hcnni'tti- v. Wnodi*, 1 1 Q. B. 29.
Tiiiancy is no ground for discharging a person
from arrest, dhirke v. Clnrkv,^ L. ,1. 149.- t'.
U Chamb. — Robinson.
The plaintifT having a judgment against defend-
ant and 'J., and a li. fa. up(jn it in the shcritl's
hands, sued defendant alone on the judgment,
and arrested him under a capias. Richards, J.,
refused to set aside the arrest or stay proceed-
ings, but left defendant to plead the non-joinder
and proceedings under the fi. fa. Ferrif v.
McDkirmld, '2 1'. R. 521.— Chamb.— Richards.
Where defendant was illegally detained in
close custody, without warrant, at the instance
of the plaintiff, on a charge involving the suIj-
ject matter afterwards stated in the affidavit to
arrest, as creating the demand for which the
defendant was ordered to be held to bail in the
cause, he was discharged from custody on enter-
ing a common appearance. Palmer v. Itodiierx,
« L. J. 188.— C. L. Chamb.— Richards.
Where application was made for a discharge
from custody under a capias, upon the ground
that his arrest was procured through a trick, by
means of the use of criminal process, afterwards
abandoned, and the affidavits in answer posi-
tively denied the trick and all collusioii, the
judge, without enquiring into the legality of the
arrest under the criminal process, discharged the
summons. Glenn'w v. Hokx, 3 P. R. 281. — C. L.
Chamb. — Hagarty.
Defendant was arrested t.>n a capias, and
gave bail. After judgment a ca. sa. wa? issued,
and proceedings being had against the bail, the
Erisoner was rendered to the sheriff, but gave
ail to him under C. S. U. C. c. 24, s. 29;-
Held, ou an application by the prisoner for his
discharge from bail as not being worth $20, &c.,
under 0. S. U. C, c. 26, ss. 7, 8, 13, that he
was not confined "in close custody in execution, "
and had not been ' ' arrested under a writ of ca.
sa., though not confined to close custody, but
has given bail" ; and, therefore, that he was not
entitled to be discharged. Hesketh v. Want,
4 P. R. 158.— Chamb.— A. Wilson.
Where an executor alleged that he had kept
money belonging to the estate for several years
in his house, until the same was destroyed by
tire and the money lost, the court held the
executor guilty of a breach of trust with respect
to the money, and his affidavit as to the destruc-
tion being unsatisfactory, refused to diauhariji
him from custody under a writ of arrest. /jifF
sun V. ('rookulutnk, 2 Chy. Chamb. 426. — Muwitl
Right of insolvent to his discharge from arresLl
thougli not entitled to a certificate of diacLarw f
HiKtil V. Ihiilth, 19 V\\y. 639.
Vll. Skc(»ni)
AliHIWT
.AND
IMTS.
AkHKST UN AUiJ
1. A/ti r dUelHirijc ur JirM arrcul act (tn'nlf,
A Hec<ind arrest waa set aside, where tltl
plaintiti' had been nonprossed in the tirst sutl
ar.d hail not j)aiil the co^ts. McCaiiiir v. I/,,.!
luin, 2 0. S. 516.
A second arre,st allowed where first set a
for a clerical mistake in the affidavit nf ile|(|
plaintiti' liaving di.scontiimed that action
jtaid the costs. Shftdon v. JIaniilton, 3 I). S, (J
A defendant discharged by supci-scdeiw, tij
plaintiti' not having cliarged him in cxcoutiu
due time, cannot be arrested again ou the s
judgment. Burn v. SIralijhl, 5 O. S. r»2,t.
Second arrest upliehl, where defendant i
l>een discharged fi'om the first on gi\iiig a joiJ
note, and agreeing to pay the costs, the m
having been dishonored and costs not i
although an action had been brouglit ii|joiiti
note. MrDimald v. Amm, E. T. 2 Vict.
Where a defendant w.as discharged for deifvn
in the atlidavit of debt, on entering a canin
appearance, and afterwards arrested on ana
writ, the arrest was set aside, the plaintiff buj
ing no right to make a second arrest in t
cause, where the entry of an appearance is i
a compulsory condition of discharge fmiii il
tirst. Benson v. Adiivis, E. T. 3 Vict.
Where an arrest on mesne process waii
aside for irregularity, and tiie plaintiff afta
wards proceeded to judgment : — Held, tiiitij
might again arrest defendant on a ca. sii. [m
on a new affidavit. Gordon v. S<iiiiiiimVi.\
T. 7 Vict.— C. P.— Jones.
Where defendant had been disciiargeii frJ
custody on a ca. sa. by the partner of the plii
tiff's attorney, under a mistaken auppojili
that the debt had been compromised by 1
acceptance of new securities by the plaiid
the court refused to order a new ca.sia.
Imrji V. Lone;i, G O. S. 291.
Where after an arrest set aside for irrej^lii
in a District Court, the plaintiti' arrested j
defendant in the same cause on an alias i
under the statute, and defendant then rems^
the cause into the Q. B. by habeas corpiUi|
order to set the second arrest, aside, but "
sequently took steps in the cause in the VA
Court, and did not put in special bail ii]
Q. b,, the court refused to set the arrest*
and ordered a procedendo. Oarjield v. S'M
2Q. B. 411.
A defendant discharged cannot be detaiifl
the same plaintiff, upon a second writ i
upon an affidavit sworn while he was in c"
upon the first. Barry v. Eccles, 3 Q. B.
The defendant having been arrested ii|
County Court, was discharged for iusuirt
of the affidavit, but expressly without f
99
he plaintiff tlicn toe
his suit on payment (
lefendant in the (jx\
linse. Uefendant w;
( tiio /irat arrest Juk
antial defect, there t
lieeause tlic first su
iicontinuoil, the pLiii
I tax or \)i\y costs. I
['hainb. -niirns.
I A secojul arrest for
kie without leave w
xatioiis, and tlic lirsf
iry trivial irrcgnJarit
- R. 387. -Chamb.
|Oii a ci. re. to arre.'jt
' one (t., a .sherill ',s
ing nnwoll, gave it
ned in the warrant I
bailiff to go to the
, which he did. ,Su]
DC of the .second bail
|lt, the jinl^rc of tlio (
J arrest. W'liilc the ji
leconil warrant wa,s ma
tKV.\m\, in the Coi,,
I set aside, as iioiiii' ,-
le cause without loTiv
Heft the Province, and
a;,'aiiist the slieriff a
^ breach cliai'gcd that t
|8tT., &c., to wliicJi (It
|8l)criff (lid arrest T.
[submitted to tJie m,i
■, that defendants won
Iffhen the first arrest
|ty the sheriff might .<
less was tnrreiit. Nei
JBtWiWunnece.ssarilv sc(
•2. Oihrr (',
Hiore a defendant was
hmdcr 2 (ieo, \X ^.
t» tlie sheriff a'fto,-
mnce to serviceable i),.J
pet aside with costs
!U-iIl. IV.
Ber the service of ,„„
h nrdor olifiincil by
pO'ifpartieniara. with
l;i<.^ not oj.crato .so
fin frnni arrcstiicr
"•nt. \n,„„
H'i 1.1(111
i>c
()
Freajnstieet;ikesl,.ui
pnio, a seeond ari^cst f,
'Mine cnmjd^iiManl,
Pefcii'lant cannot bi, ,u-,
Mod after aj,pear,ince
'■'""I'-'rfMrhi.saiTn.st, as
hv""''n alias writ afte
hl;pl.e.s only to causes wh
•I't. I'OSS V. Ci;^
ffhorc
■'/"
14
>".!,
^m.
00
\RRRST.
210
V*,
rtie plaintiff then took out a rule to diseontiiuic
1 • g„i(; on payment of costs, if any, ami an-ested
Cfemlaiit ii» t^'^' Queen's Bench for tlio same
Vse. ' Defendant was dischari^cMl -1. IJecauHc,
tthti l"'^t arrest had been avt aside for a sub- ;
jntial defect, there couhl he no second arrest ; I
Because the first suit ha<l not i)cen ett'cctually I
i«continucd, the plaintiff inning taken no step !
Ctax or pay costs. A7/;.< v. .A f //(-.-•, 1 1'. I!. 1").'?. I
fhainh. -Btinis. !
I A second arrest for tlio same cause may he i
kIc witliout leave where it ap])ears not to be ;
aatious, ami the lirst has l)een set aside for a '
•ry trivial irregularity. (,'UI<:'<j,!<- v. /h-nilii;;, '
p_ p„ 387. -Cham b. Itobinson. I
lOnaci. re. to arrest T., a warrant was made '
loiiett., a sherilV's otiisTr, to execute. (1. |
inn iimvell, gave it to another bailiU', not j
meil in the warrant to arrest. T. jiromised j
bailiff to go to tlie shcrifl"s office and give :
which lie did. .Subseiinently, liec.uise the |
jieof the second bailiff' was not in the war- i
C the I'udgc of the ("imnty Court set aside '
larrcst. While tlie process was still current 1
bcoiiil warrant was made out and T. arrested. '
Ur^iimm, in the Cnniity Court, this arrest
Si set aside, as being a second rtrr(!st in the i
|c cause without leave. T. was discharged [
1 left the Province, ancl [daiutitl'bronglit cove- I
t a'ainst the sherifl' and liis sureties. The !
i lireach charged that the sherifl' neglected to
JBtT., &c., to whicli defendants pleaded that
■sheriff did arrest T. At the ti'ial the issue
Isuhmittcd to the o[iiniou of the court: -
U, that defendants were entitleil to succeed,
Bvhen the lirst ari-est was set aside as a
Ity the sherifl" nught still arrest while the
jess was current. Senible, that the first
Ltw;Vi unnecessarily set aside. Mdiiiitxh v.
«'«•'., 8 0. H. im
A pci-son arrested under a ca. sa., and suffered
to go at large by the sherifl' for a limited time,
with th(! consent of the attorney, niay be re-
ai'rested under the same writ. Davin v. C'lin-
iihiiihom, ") L. .1. '254. — C. \,. ('hamb. — McLean.
If defenilant is arrested on a ea. sa. and gives
bail, plaintiff caiuiot issue an alias ca. sa. and
arrest him a secfmil time. But where defendant
hid endeavoured afte.- the arrest on the ca. sa.
I)y a contrivance to escape, so as to relieve his
l)iiil and I'hai-gc the sheiiff, the court refused to
set aside his arrest under an alias ca. sa. (Semble,
before the issue of an alias under such circum-
stances, the origiivd shmild be returned and
filed. Ih-iarii v. Sl'iviix, (i L. ,1. 8!). -C. L.
( 'haml).--Itobinsi)n.
Where, upon api)licati(ni to commit a defend-
ant to gaol, under '12 \'ict., c. 9(5, s. 1.3, the
juilgc ordered a ca. sa. to issue instead, and defen-
dant thereupon gave bail to the limits : — Held,
that he coulil not again be committed to close cus-
tody under the first alternative of the same clause.
/v;,;,v V. AV»/v.s -2 P. I{. 318. -P. C— Burns.
After a viilnntai'y escape fnmi the sheriff of a
l)ris()iier held under mesne jiroccss, plaintiff may
proceed \\\i\\ his action, and, semble, may issue
a ca. sa. without aflidavit, if he luis had a
capias pending action, or an alias ca. sa., if the
ca. sa. to fix bail has been returned non est
inventus, and take the defendant thereunder ;
and at all events the plaintiff may have a ca.
sa. issued on a new aflidavit .and re-arrest defen-
dant, in^hlh v. W,n;l, 17 C. P. (itt".
I'er A. ^Vilson, .1. ■ -(,)un're, whether, after the
voluntary return of an cs(;apcd prisoner, a plain-
tifl' cannot accept such a return and lawfully
cliargc his debtor in execution, by merely deliver-
ing a ca. sa. to the sheriff. Ih.
See, also. Anmlil v. Amlrcirn, 8 C. P. 4G7.
.Hi*
Inti
In cm
•2. O/lii r Ctit-x.
Ilicrc a ilofendant was arrested on an alias
I wilier '2 (leo. IV. c. 1, and gave a bail
, to the sheriff after having entered an
kraiice to servicealde process, the bail boml |
Iset asiile with costs. Ihiiii/.'d.i.-i v. /'mr.-l/,
'.•2 Will. IV. 1
her the service of non bailable ]>roeess a
iinler obtained by defendant for the
iery "f particulars, with a stay of procood-
(lies lint operate so as to prevent the
fciff frnm arresting the defendant on an
writ. Wll'<on V. iVil-xiii, 3 O. S. -"M.
fccre a justice takes bail for appearance at a
itimc, a second arrest for the same charge
tc same cmupliinant. before the time ap-
pl, is iliofjiil. Kiii'i V. On; .") ( >. S. 7"24.
[Icfcuilant cannot be arrested on an aliius
Jsiicil after appear.ince entered to service-
irocMs, where it is necessary to obtain a
|8orilcr for his arrest, as the statute allow-
estfiiian alias writ after serviceabhi pro-
kpplies only to cases where the cause of
lisiiilclit. A'ov.t V. C^iyiiliiir/, (I (). S. SoG.
I vfherc a judge's order is iicc ^ssary, a
pit cannot he hehl to bail on ,>n alias
IRmmnx. YicUinu, M. T. '2 Will. IV. ;
; Vr,^,ih,u-i, (; O. S. S.'rti.
U
N'lll. Cosis INDKU (JoMMON T..VW PuoCEDritK
A«T, s. Wli. (FoiiMKKi.v 4!) (Jko. III. c. 4.)
I. .l//'''/o,v7.t oil npji/iriilioii for.
An application for costs under 49 Geo. III. c.
4, must be su))ported by affidavit stating that
defendant was arnwted witlumt reasonable or
))idbable cause. Mcliiio'ih v. Wh'ili; Tay. 57.
Where the difference between the amount
recovered and that -iworn was only £,1, and in
defendant's aflidavits in support of an applica-
tion a wrong Christian name was given to one
of the idaintiffs in the style of the cause — the
court refnseil to rdlow them to be amended, and
discharged the rule. Ruf' v. Vinil; 1 Q. B. 5.
The rule was refused, because it nowhere
apjieircd in the aflidavits for what sum the
plaintiff had a verdict. I'm,; II y. Unit, 1 Q. B.
415. -P. C. - .bmes.
If the facts sworn to in the affidavits tiled
show want of reascnuiblo and probable cause,
that is enough, without swearing^ to it in express
terms. Lai/rmiil,' v. rii/l,;i, IP. H. 22.- P. C.
— l)r.i])cr.
2. Olhrr Cmcx.
Wlii'ir till rauxe lain hf>en »'r/('('rp(/.]— Where
eviilcncc had been given in court of a larger sum
being due to the plaintiff than lie had arrested
M I
: i;4i
1 1' 51) J
t '
PfTT
sn
ARREST.
\l':
V i
l-il-l:
defendant for, and the case was then referred
with other matters, and tlie arbitrators awarded
the possession of a mill to the plaintiff, and £6 or
£7 only in money, the court refused costs to de-
fendant. McOreaor v. Seotf, Tay. .')(>.
Quiere, under what circumstances the court
will allow costs to a defendant under the statute
where there has l)een a i-eference. Bfunl v. Ort;
Dra. 40.
Where plaintiflF arrested defendant for upwards
of £,30 without allowing a set-off, of which he
must have been aware, and a verdict being taken
subject to a reference, the arl)itrator8 allowed
the set-off and awai'de<l plaintiff only €20, defend-
ant was held entitletl to costs. Kenilrcii' v,
Allen, T. T. 4 & 5 Vict.- P. ('. -Macaulay.
Where the plaintiff arrested for £20, and a
verdict was taken by consent for £00, sul)ject to
a reference, and the arbitrators awarded Us. ,3(1.
to the plaintiff, and it appeared by their affidavit
that the plaintiff shewed a cause of action to no
greater an amount, t!ie court .illowcd defendant
nis costs. McMick'niif v. Sj>ciir/'i; H. T. (> Vict.
—P. C— Mclean.
Where a verdict lias been taken subject to a
reference, defendant may l)e allowcil his costs ;
but — iSemble, not if tlie reference ilirect the
costs to abide the event. Xir/iot.sim \. A/lmi, <i
O. S. 252.
Where a cause has been referred by onlcr of
nisi pri's, but no verdict taken, defendant can-
not deprive the plaintiff" of costs. Ponwll v.
Gott, 1 Q. B. 418.— P. C.— McUan.
the
.•ire
ini-
Othfr Afaltern.] — Scmble, the words of
statute, " arrested and belli to special l)ail,"
satisfied by defendant being arrested and
prisoned. McCrfijor v. Scott, Tay. r)(>.
The plaintiff is allowed no costs where in a
bailable action he recovers less than the sum
sworn to, and the court will order defendant liis
costs ; and the defendant is entitled to set off
his costs against plaintiff's verdict. Rnrnum v.
Lfp, E. T. 3 Vict. But see lliii^mi \. Phr/,,,,, I
P. R. 24.— P. r.— Draper.
Where a defendant ai-rcstcd under a bailable
writ has obtained a nilc granting him bi.s costs
under 49 fJeo. 111. c. 4, the plaintiff is not enti-
tled to tax costs on entering the Judgment.
The effect of the first clause of tliis statute is to
deprive the plaintiff of all his costs of suit. And
the word "recovered" in the latter part of this
clause, as well as the M-ord "recover" in the
former part, refers to the amount for which the
verdict was given. Ilhjmn v. Ph'tan, 2 ('. L.
Chamb. 7. — Draper.
This point was considered at least doubtful
in the same case, I P. H. 24. — P. C. -Draper.
Where the rule nisi was not correctly intituled,
the court allowed an amendment by the affida-
vits on payment of costs, lin// v. MrKrn-.ie, T.
T. 7 Vict.— Macaulay.
Plaintiffs arrested for £fO(5, and got a verdict
for £54 78. 6d :^Held, under the special circum-
stances set out ill this case, that the plaintiffs
had shewn " reasonable and i>robablc cause, "and
had sufficiently explained their failure in recover-
ing the full amount for which they had arrested.
aohlie V. Cameron, 1 P. 11. 20.-1'. C. -Draper.
The plaintiff cannot object to the notesi oF tl^l
judge who tried the cause being referred to, f„J
the purposes of tliis application. //«/*,/, .f
PMan, I P. n. 24.— P. C.— Draper.
Semble, that one of two defendants, arreiWl
I for more than tlie sum recovered, cannr)t obtai^l
I costs of defence, (i/hmx v. Varrji, I P. R. jjil
; — P. f'. — Draper.
I A bailable capias having issued, tlie A^m\
slieriff went to defendant, and asked him tofj^l
j bail. They both then went in searcli of bjjl
j and a bail bond was executed : — Held, a sgij
I cient arrest to entitle defendant to apply ; wl
i Held also, that under the circumstances of tla
' case, want of reasonalde and probable cause ^±
\ not shewn. Movnr v. TcclzfJ, 1 P. I!. %<) _f|
IP.— IJichards. ■
j IX. I'kivii,K((k FKOM Akhksi.
An officer when emjjloyed in executing \m<M
is privileged. Wflliji v. /icrird, Tay. 304. 1
I So i.s a suitor attending a court nf iwiiieJ
\JioMirin V. Sllrer, 4 0. .S. 131.
A person who, having attended as am
I juror at a court wliich adjourned for a I
days, went into another district on private l.
neas, was held not to be privileged from an
there during such adjournment. MitlMwrft*
Cliirk; 5 0. S. 718.
An attorney coming to court in term on i
fcssioucal business, which has ))eeii disposji
is not privileged from arrest in execution, .svl
lirUliie v. Dovi^, M. T. 2 Vict.
An attorney has no privilege on attaclinL
for contempt. !'<' MrJnti/n; 2 P. K. 74.— Cluij
- Burns.
A barrister cannot be ivrrested upon niesnen
cess. Ailnniii v. Aelhinil, 7 Q. B. 211.
A judge of tlie County Court cannot !« ^
rested on mesne or final process. Ik
A judge of Surrogate Ccnirt is piivilet
MHi'Ux. Allen, 7Q. B. 482.
Infancy is no ground fordiscliargefroina
iUurh' V." ('tiivkc, 3 L. .1. I4!».- (". !,. Chamll
Bobinson.
Bight of married woman arrcstcil tnlifji
charged, liennitt \. Wooilx, 11 Q. B. 29.
A clerk of the County Court, being alscl
officio dcjiuty clerk of the crown aii'l derll
assize, is pri\'ilegcd only while engaged inf
official duties, or while going to or rett
from his office ; and this court therefore!
charged a rule to prohibit the ('ouiity CJ
judge from issuing an order of oommitii
against such otticer. In /v Mnchni v. dWJ
27 Q. B. 2(i3.
X. MrscEi.i.ANKous Casks.
Under 2 Ceo. IV., c. 2, a judge iifsl|
trict Court had no authority to order an )
' for a cause of action on a con tract where |
damages were not liquidated. Perm
0. S. 5.
The sheriff's warrant to a bailiff to arrcstij
lie endorsed with the amount of the debt c
and costs, in like manner as the writ w re<]^
to Ix!. iSVt'f/f V. Lameiu; 5 0. .S. 154.
13
ASSAULT.
214
In -li-bt nn a iuikmeiit of ii District Court it is
"""* ■ • ' - °' •* *> in:..*;»' ...rustud the
consented
13-2.
I plea in bar that the plaintiff' arrcste
Seiulant on a ca. »a. and afterwards cons(
)his
I Uml«i- 1 Vict.
21, 8. '27, a magistrate cannot
se'tiiVarrest of a party in tlie lirst instance ;
',M»«t tirst be summoned before bim. < 'nnik-
[sbiuble, that a constable may legally allow a
Utor whom he has arrested, to go at large so
as' before the return of tlie writ he deliver
^totliealieritt'. Itoo" v. Wchxti-r, '»Q. B. 570.
I An arrest by a constable on mesne process
ctol to the sheriff' is not legal by the 2 ( Jeo.
bS'J, unless the affidavit of the debt be
nexed'to'the process. AV^i v. Whiln; 5Q. B.
IC'citionui granted to remove cause from County
mrt defendant having iiecn arrested. Wiiia-
rx! l>rmiil>; 1 I' !«• »">T -P. (J.-Hichards.
Inhere a party arrested under a capias penil-
L action, and before jiuli.- nent, gives bail, aiul
tL judgment and .m. i.a. to Hx bail returned
lest inventus .idered to the 8heriff''8 cus-
bv liis bail i- -heir own discharge, such
Lie: is still under mesne process, and is not
finwi in execution. Ifish-lh v. Wtiiil, 17 C.
ARSON.
Sci> Ckiminal Law.
As to the defence of arson in actions against
insurance companies, and the evidence necessary
to support it. Maim v. Tim Wvntvrn Assurance
do., 17 Q. B. 190; Richardson v. Canmla West
Fiirmcrs Insurance Co., 17 C. P. 341 ; OoiiUl y.
liritisli American Assurance Co., 27 Q. B. 473.
ARTICLED CLKHK.
.Vcc ArroKNKV anu Solicitor.
jKugliah statutes I Anne st,
ic. 9, relating to escape warrants, are not
■ ill this province. II).— A. Wilson, dis-
hij niiiriiHii abtxuitwv/o . .a.i»»«w ««. «., C. O, tkllO
jinec.
ioice
jiig.
nble, a person in custody on a criminal
may be detained in custody in a civil
Puliiier y. Hoijers, (> L. .1. 188. —C. L.
nb. -Richards.
Bitre, whether after the voluntary return of
leaped prisoner a plaintiff' cannot accept such
m, and lawfully charge his debtor in execu-
fby merely delivering a ca. sa. to the sheriff".
_A. Wilson.
irgiug in execution is the process whereby
joner in actual continemeut is detained in
b(ly, whether at suit of the same or a differ-
llaiiitiff. III.— A. Wilson.
ie plaintift' is not compelled to charge the
Want in execution in the county where the
fhave surrendered him ; he may be charged
e the venue is laiii. Beattie v. Roliinson, 1
.Chainb. 217.— Burns.
|lil, that a constable executing' a warrant
luniierthe Fishery Act, 31 Vict. c. (>0, D.
feng bim to convey plaintiff' to gaol, and
toler to hold him for 30 days (absolutely.
Lot until the tine, &c., be sooner paid for
Bonpiyment of which the warrant was
1), had no authority to receive tlie money,
Kiharge the prisoner. A molt v. Bradhj,
[p. 1.
.\1UIEST OF JUDUMEN'l".
See. Judgment.
.\RIIEST, WRIT OF.
loK AuMojiv— 6'ce HuaBAsu .vxu Wifk.
ASHBURTON TREATY.
.SVr KXTHADITIOX.
ASSAULT.
L Ckimisai, A.ssAiLr— ,Vc(- Criminai. Law,
11. Action' kor A.s.saui,t and Fause Impris-
onment.
1. liij Constable
2. Other Casi-s
-Sec COX.STABLE.
See Tre«1*ASH.
ANU BATfERV — .See
III. Action kok A.ssault
Trespass.
IV. I'riTiNc Persons off the Train — .SVe
Railways and Railway Companies.
Where a man is himself assaulted by a {jerson
disturbing the peace in a public street, he may
arrest the off'ender and take him to a peace
officer to answer for the breach of the peace.
Forrester v. Clarke, 3 Q. B. 151.
On motion to (piasli a conviction by two
justices of the County of Norfolk for an assault :
— Held, 1. That stating the offence to have lieeu
c(nnmitteil at defendant's place in the Township
of Towiisend was sutticieut, for C S. U. C. c. 3,
s. 1, sul)-8. 37, shews that township to be within
the county. 2. That it was unnecessary to
shew on the face of the ccmviction that com-
plainant prayed the maj/istrates to proceed
summarily, for the form allowed by C. S. C. c.
103, 8. 50, was followed, and if there was no
sucli request, and therefore no jurisdiction, it
should have been shewn by affidavit. 3. That
it was clearly no objection that the assault was
not alleged to be unlawful. Re<iina v. Shaw, 23
Q. B. (!I(J.
It had been previously decided that tho
j)raycr for suimuary jurisdiction should appear
on the face of the conviction, even if not neces-
sary on the face of the information. In re
SwU& • and McKce, 1) L. J. 2(J(».~Q. S.— Har-
rison.
The Court of Quarter Sessions has power, in
the case of an assault, to pronounce a sentence
of line and costs of prosecution, and imprison-
mont in cose of tlcfault. Ovtna v. Tayhr, 19
c. r. 4«j.
^(■^It
\ \]
Wfi I «,
w
215
ASSESSMENT AND TAXES.
T; tr
Ift,.'..
ASSKSSMKNT AND TAXES.
I. ASSKHSMENT.
»
1. ac III' mil I/, 216.
2. Of Ptrxonidhi, 2 It!.
3. 0/ Incoim, 218.
4. <>/■ /.,«;«/.<.
(a) (Uiicnill;/, 2 IS.
(b) A'^uH Henlihiil Lmnh, 221
II. KXKMPTIONS.
1. I' mi If rill held lii/ the Cmtrii, 2
2. O^Ar-/' C(wc«, 223.
III. Ahskhhorm.
1. A/t/ioinliiii'ii/ iif, 224.
2. Ddlii'x of, 224.
IV. KqUALI.SATKIN (IK HaI'K:
V. Al'PKAI. TO I'oi'K'l' f)K
CuuNTV Ji;i)(iK, 22().
224.
Hi'.vrsioN
AM)
VI. Statuti; Lauoi'I!, 228.
VII. COLLKCTIIIN OF EAir.S.
1. ni'itir.f.1 viid S(d<; 2,S0.
2. Olhrr (^.Vi.s/'.-i, 230.
VIII. JlKSl'ONSHlir.lTV OF COLLKCTOHS AN 1> TIIFI H
Sl'RKTIKS, 237.
IX. Sai,k of Land fok Ta.vks.
1. Proof of Tiucti III Arnar, 239.
2. .S'n/(- (tftir Taxes paid, 241.
3. fialeii iindi'r J ]'kl. c. 40, 241.
4. Apiiortioiniicid if Poijuwul, 242.
5. DUlrcM oil Pri-iiiUf-<, 242.
(). Non-Iiemlrnl Limdi, 243.'
7. Several Lot.% 2H.
8. Tre.amrer'n Warmiif, 24j.
9. Advertisevieid, 24G.
10. Improper Conduct id Sale, 247.
11. Dull/ of Hherlff, 24'J.
12. Sheriff"!* Cerlijieale, 250.
13. Sheriff's Deed.
(a) Descr'iplUin of Land, 250.
(b) Other Ca-srs, 252.
14. Effect of Miii-liiiKjee PiirchK/iiinj, 253.
15. Jiecoreriiiij bock Purchase Moiiei/, 253.
1(). Pedeiiipthu of Liinds Sold, 253.
17. Olijectlons euri'il l/i/ SliUtiles, 253.
18. Other Cases, 257.
X. Recoveiunu hack Taxiw WiioN(iFi i.i.v
iMPOSElt, 2G0.
XI. No.n-Hesident Land Flnu, 202.
XII. MlSCELIiANEOUS CASES, 2()2.
XIII. Customs and Excise— Sec Keven ue.
XIV. Covenant fok Taxes— .SVc Covenant
FOR Title.
XV. .Jl'uors' JCxfexse.-^ ketween County
AND City — See Jrnv.
XVI. Taxes as between Landloku and Ten-
ant— »S'ct' Landlord and Tenant.
XVII. MUNICII'AI. lU-liAWS HE(fARIilN(;~,s„|
iMuNiciFAi, Cohfokation.s.
.Will. Sciiooi. Kates .SVr Pi'iii.ic Sciiuuls,
1. Assessment.
1. d'emrallil.
[I'hi /•nsrii/ /Is.sfxsiilriil Aet is .i.i Vii'l, ,\ „■(;(/ I
as aim mild. Ill/ ,:.! Vicl. c. .'7, <>., H/f I'icf. v jf
0., and 117 Vict. ,: /,'/, O.J
All assuMsinciit for scliool jmrjmaus fiiiiiintl,!
levit'il liy ail hiiu(|U,t1 vixU: in dift'erciit wniil.sj(l
11 city. /" /■'■ Scot/ V. .^fiinieipiit ('(iiiiicil (ijijM
I CUi/ <;/■ Ollaira, 13 Q. H. 3K!. |
; llulil, th.at a iiiiiiiicipal council has lio uutliril
I ity to place names on tlic a.sscssnient roll aftwi'
I is liii.'illy jiasscd by tliu revising tribunal, /.'ipij
U'.e. nl. Clint v. V/ihain, 7 L. .1. ()!).--('.(',
Mackeii/io.
' Wliero several devisees ami executdw «k|
, rated to a seliuol rate in respect of the pnmeitil
I of their testator, as ".loliii A., and lirotlmrs'l
which entry appeared to have been iiiadeattiil
'instance of some of the plaintifTs, Imt twdij
I thciii only had slept on the lireiiiisesdccasiiiiiallj
i although such was not their usual plate (if
I deuce, and they bad received the iif.ial iiotij
I of assessment in that form witliout aiiiicalini
' and the same two liad paid taxes on an Msesl
ment on the township roll in their iiidiviiliL
names: Held, I. That the facts ationleil aj]
eient evidence to shew that the plaintiffs wai
" inhabitants of the school section," for tliciL
poses of the rate. 2. That the jiartits wJ
surticiently named on the roll to render tiici;
lawful. Ap/ieli/arth et al. v. (t'r(diiiiii,'i{'
171.
The east half had been assessed seiiai.ittlil
and it was admitted that the whole of
had been granted together : -Held, uiidcrl)!
14 Viet. c. 07, that it should be presumeil
tax on the west half had been paid, ami thill
had therefore been properly assessed separatdi
McDonell v. MeJJomtld, 24 Q. B. 74.
Held, that the effect of the 29 & .SO VidJ
53, was to abolish the distinction hetweentlf
mode of assessment in cities and cdiiiitios li
for the purposes of the Jurors' Act and otli
wise. Thf Corporation if the (/oiiuti/ of Frm
//(tr V. The Corporation <f the Citij ofKiwrn
30 Q. B. 584 ; atlirmed in 32 (}. B.' m.
AMiere a bill to restrain proceedings fur cl
lecting the township assessments of the yeir, j
the ground of objections of form, and bccauM
an o\-ercliarged assessment fif small aiiioif
! was filed after it was too late to apply at la»|
(juash the by-law complained of, the
atfirnied on re-hearing a decree dismissinsj
bill with costs. Oricr v. (SV. Viiicnil, 131
512.
Quu're, whether a township edumil ii|
liberty to provide for abatenn;iit.s aiul 1
which may occur in the coUectioii of tiie coi
rate in respect of personal property. Ik
See Coleman v. Kerr, 27 Q. H. 5, p. '2%
2. Of Personaltij.
Dank Stock.]— \]\\AcT 32 Vict, c. Sli.Uli
stock is personal property liable to iwscs
Tickit V. f)l:ll<lhls, if,
Ijiorted. //' /■(• a/i/ifii/
Ulic Citi/ if h'ini/s/iin,
-Biirrowcs.
But in another c.ise
tilijsosiinieiit. /// /v i
'tri/idti III' thr Toien
-V. C. lioswell.
' Bank stock held by j
Bi'ssal/lu as against tli
(///i Vmirt if h'fi'lsiou ,,
).— C. C. —Burro wes.'
J Stouk held by a ivsic
([eicliaiits Bank, whieh
aines.s in .Montreal ; ~]
irty(Mniud out of the
ieiupt ; for it was o\\i
r as the Aase.ssiiient Ac
id (ir chief place of
W/c \'- Doiiijliis, VI. '(". ^
f[^W, by 37 Vict. c. I!)
*Dlllt.J
Mlrl-Mjl/lrrs. I -'J'hegi
lof KlfeHii, forming pal
kt Stanley /{oad, wm, ^
Ithe (corporation oi' the
Sd for a teiiii of years
,e not residents of the a
Held, uiidei' ( '. S. U. C.
|he apiiollants in the'
Irest, could only be assi
||y; 2. That as "the app(
,11' village, they could n
jucipal council of tiiat
Jr interest ill the road.
iCoiiii iif I'i'i'i>ii„i, III' s/
I C. -Hughes. ■
■eld, under C'. S. 17. (_!_
f I'lcpertyof ajiartners
fast It at Its usual iilaee
If, 7 L.J. 103. -C. C-
fsteanihoat w.is held pei-
icily assessable at one o
|ii which in summer it
jiiitcr it was laid nj). /)
lid, that the ])ipes of a
ligiiout and under the sti
Redeemed "land," |,„t ,
f' »■'"'»' the Asses.snieii
\ lnrp(/ii.-i Co, 111)11, until,,
U04.-('. ('. -Anustro
Be plaintiti' l.cing i,, ],o>,se
> was MSLSsed therefor
>twln(dihoa].i)ealo(ltotlfl
Itotlie County Court judu
r asjigiMiient of the .^o,
I trusts for creditors was
psnaiuGwjis erased an
|hite(ltheref,,r. Theplai
pat his name was not <
> >on, or that his grou,
Pe goods were not ecmal
piiemMdso^^,,,^^^ij^
fc(hstrame<l upon the V
Kand defendants avT.^
I tliem by the plaintifl
IP^r.,,, tin. eolleetor's i,
r that the plaintiifhavinir
l«iBme being erased from
r ™ replevying tlie g,
]
117
ASSESSMENT AND TAXES.
I'lrlsiiiii
lit.
(-'. t'.
mnrted. Jii n- 'i/j/>^„ //,■„,„ th,- (Uwrl „i
fl/ii'Cili/o/ Kill!/-:/!,,!,') I,.,}. S S »-;()
: But in aimthc-r o.i«e u vviis h,].i „„t t,. 1... Ihl,k.
feir-oim <ij th' /oini i>/ (!„h,„i,„ <» i i J ';
4'. C'.--^BoaH-cIl. •'' • ''■ •'• ^- •^•
Bank stook hu](l l)v ;i iiitsih, .,^ i.. i.
mi Vonrf of IM.sion „,• Khui.U,,, ' \ , TZ'
Kil.-C. C. -Hiim.wes. ' " ''• '^- ■^•
I Ht(ii;k hull! Jiy ;i icsiMcnf- ni' i.-; i
Uant« Bant which YL' J dg'::,''''''V
artyo^vnea out of the V^J^^^T^ l"'""
«.! or chief i.kco ofS. .^ ''^'^ f tla
, • ' iil8
K''>"l'li'il ivitli jiotiii ., ^ '"''*' ^'''^''', beiiiLr
'^■'"« «heun t.!. I,e in kl.tl %*''*■ pl'"»tiff not
""' l«-i™a.u,„tlv iv«i,|„;, " , I»"™?. I'hA™
I *-• ^.■- Illlyhc'S'.
[of Elgin, forunn. paTt of ;'','" ' ^' •"""■
Lrt Stanley Koa.l.^wL ' , t. I '''h'''''" '""'
tlforitonuofyear^t^rS' "iJ:f.'''r''
N"ot re«i,lcnt.s of the villa^^e of'sf t/ ' '''"'
irest, cul.l only |,e assessed as 1 ', "'""'
|y; 2. That as the ;M'K.IIants!l .'''' »'''"•
leWll.,ge. they conl^ nS a t'^'Hi'^
Uciimlcouneil of that vilhi,rj "' , T ' '"> t''*^
Jriuterestin the roa.l. / Kr ^^'/"'-^ ^" '
I C.^Hughes. -^ """"' ' '- J- ■!(.•,
leld, inulcr C. S. l,'. (.' ,. r- ., , ,,
^propc'ty of a j.artnei'shi,; nnStt , "' '""';
Isteauihoiitwas hehl Dersoii)! „.. ° ^ '
fcrly assessable at o..e o he t' '",'■'•''• ".'"' '
|.whichinsuu„nerit i /f^^^^^
jiiitor it was laid up. //, ' ' ''^ ^*'"^'>'
ll(i, that the i)iiies of •■ „.,„
(gl.o«tan,l „,!,Ier theVt .e^.* ^ :;yT^ '''j'}
ledeeme.! "land " l,nf Mfi ""^-^ '-""^'l
f:witi.mtheAsLi:;'*t,i---^jF';-:
ee;
^^•asedt,, i,e «u<.j/ j' k'k '"'^fe'" "' «t. fju.mas
: ^'""■^^", and ha.l not aftc C ''"^ "*'>e''
I ;\''V. IS(;0. heen .-, res ,li "';""r"«en,e,it of
"«'l.l, nndei- (' s J , 1 ;'- *''« village :-
""t be a.sse.s.s..d l.y the "vili., ''"'/''"' ''" ''""1<I
«;;^>icrthan$l7o4',^, Jte^'"' '»i a,no„nt
•^-'OO, thr i„-,.per anionnt f, t """ ^'""^ ""tl«-
^'-"/-v- V. yi.Vii;^:;-J;- l'---H..glZ
•'■ -1.1, su|iia. ' " '■' ' "■«"", 10 L.
""Iv t«nU.o.ani;%*"'\'; '---"-'t, was tire
I agency of the l/aiik of wLi^ V'" ''"«">ess of
taken'T,,:;. J'':;^'-,,^«i;I-.t "f Vienna had
].al.ty, whither the ah i ..n . 'J'V'^''^'" "'""'ci-
«aectshad been reSyS'f-*"^ ''""««''«W
; "'"«t «' Jii.s fan.ily reS 'w !f '^'■^*"* ^n'l
I was takni, an.I he remai.m ' *"' assessment
forinei- domicile .huW tK, w ''"i** "' ^^
tH.t;dcing,,f theaSme t ^J* '^'""^'""^ *«
(the following n...nnW 7 • 'T /'f ^"'""^ °»
the la«t of his household e& f »-emovi„g
fmal .leparture, whe the ' '"'"'' *''*'''»g h's
''s«ass:^Hehl, that ], ^u'lTr'"""-. *''*'"« *"
purpose of assessing £ in, :!"^«:'«?." for the
section of theO S^U r T- ""''w -"e 40th
soil, his i)eriri;i.,o.,+ '...;, "• '**'> ""
|e pliuiitirt heing in i.o>,sessh.n „f . ■
kwaa^issusaed therefor hr. '*'"'' "^
Jst which he apoealcdtH, '"^'T" "'""«-
\ assignment of the .rood, 1^ V,"'*'"-
[trastsfwcreditors WK ?. I ?"^ '^- ^^•
Psname was erased ./"'il'^f'' ■'^"'' "'«
ftiitedtheref,^ The,.K .-^'"'.^ "^ J*- M.
fttat his name was , f ' ?""«'"''' ''"^^- ^'^"'•'' ^- ?'^'"6W»-:,r"'"i.''i' ""'' »»* «* ^
Jo them by the Dliii.fifV '°' t-'-^^es
6 that the plaintiff hav'„f,l„iid T^T"
^ .umo bemg erased from th" r ll h *'"''
^'1 from repfevying the gol^U^r
soil, I'ls permanent residon,; '/'"'^ *** %er-
^- Of LamiK
(a) Oenemlli/.
I^nt lands "deserilimi
>'l
!- r
M
. .1
■tj
dl9
AK8ESSMENT AND TAXES.
m
1 1
\ I f
M
¥1
(I
I
I
cli. 7, althougli iiu letteiti piitunt for tliciii have-
ever isHuetl. /><«- d. Mr(,'il/i.i v. Mi'/hmnlil, I
g. B. 432.
'I'he court rufimed a iiiainlaiiius t" ooiiiim!! a
niuiiiuiiial oouncil to altiT the iiHHeMmiieiit of tlie
iippliuaiit'a property us Hcttlcil ou iippoal ))y ii
court of rovisioii. I'licy aim) tluoliiieil to ex])ruHs
any opiuioii aH to the priiiuii>Iu to he a(lo])te<l in
the taxation of property, whether the intrinsic
vahie only Hhoufd be regartled, or whether the
amount whieli ituoiihl he or has heen lease<l for,
or what it does iu fact produce to the j(roj)rietor,
should he eonsidercil. /// /•<■ /)ir/,\iiiii iniil tliv
Afiiiiiri/Hil ( 'iiiiiifil of llic I '///(((/(- ((/■ (liill, 10 Ci>. 1!.
395.
Untler l(i Viet. c. 182, s. 21, only tlic land
oucupied by a railway is subject to assessment,
not the superstructure. (In nl Wix/irii It. IT.
Vo. V. lloiM', 1 :>(,». I'.. ItiS.
Upon replevin to reoovcr yciods sei/cd lor
taxes, the plaintill's cr)ntendcd, that their land
was not assessed at the average value of laud
in the vicinity : that no i)roper notice was
given of the assessment ; and tliat the roll was
not completed within the pro|(er time. The
defendant produced a letter written by the
plaintiffs' solicitor, as follows: "In reply to
yours of the ir)th instant, addressetl to the
managing director of this company, I am
directed to inform you tiiat the <iuly real
proi^rty owned by the company, in the town-
ship of Maidstone, consists of the roadway of
100 acres, and 17 acres of extra or waste land.
I have not the rate at which tiiis lanil has been
hitherto assessed, but i presume that the
average value of land in the locality cannot
exceed ten pounds per acre."' They also proved
a notice of assessment delivered !)tli •fnly, 18">(> :
Held, that this letter did not tix tlO as the
average value of the land, and that the notice of
iissessment, being served after the time for the
revision of taxes had expired, was too late,
nnder which they hiul iissessed the plaintill's'
land at £10 per acre, while the average value of
the land through which the railway went was
£1 10s, The plaintiffs, therefore, were held
entitled to succeed. (Inut Wi-itrrn Ii. W. Co. v.
Fn;mui, 8 C. P. -'-il.
Where executors and devisees in trust of land
were assessed as owners : — ^Held, that they were
properly so assessed, aiul that their own goods
might be seized for the taxes. Dcnimnn v.
Henry, 17 Q. B. '27<).
Semble, that a lessee of a house in a city can-
not be assessed as occupier when he no longer
occupies it, although his term continues. J/r-
Varmll v. WatkiM, 1» Q. B. 248.
Under C. S. U. C c. 55, \,he 10 per cent, chai'ged
upon arrears of taxes due upon land is to Ix;
charged upon the whole amount due at each
annual settlement, thereby making it a com-
pound computation of 10 per cent each year,
and not upon the amount of each year's taxes
separately. Gilffitpk v. C'ily of /lainiltuii, 12
C. P. 426.
Held, under the facts stated in tiiis case, that
the land was improperly assessed for the year
1858 as non-rcsiaent, being occupied, and that
the sale being therefore for more than was due
was entirely void. AUan v. Fisher, 13 C P. 03.
Held, that the district council had no ^mw^r I
to impose a tax for I'cpairing the romlsand bridM I
generally, nor to conline such tax to unocoiitiiui I
lands only, noi i. impo.se a t.ix of so much pe, I
acre, instead ot so much iu the pound du tlid
assessed value. The land having l>een NiiMf,, |
arrears of such taxes, in addition to arrtanl
accrued under the statute :- Held, that tbuiial, I
was void. Qua-rc, whether the district cmiiKii I
could direct laud to be sold for payment of taxetl
imposed not by the provincial statute, Init li;!
their by-law. />(«- il. Mi'd'iff v. A(/h7/o«, jl
Q. B. !)l, follow('d in Willlitiii^ \. Tin//„i; I3(|
I'. 21!).
(Mic S., from 18.')8 to 18(51, inclusive, occiiim
as lessee, a house and land adjoining on lot 'in
part of which lot in 1851- hod Imjcu laid out Ijl
his landlord into village lots, and a plan %l\
He iiad been regularly assessed and had paidtVfl
the p)'cmises thus occupied by him, Ijut tliJ
whole of lot 24 had during the.se four years lietil
returned as non-resident. After the treiuuMl
had i.ssucd his warrant for sale to tlie sliurilf, lnl
was applied to to correct the mistake in IIkI
rolls, so iis to except the part occupied liyS.I
from tliat returned, but he refused to do monl
than allow the sheriff' to deduct the uiniigiiil
paid liy S., who to I'clieve his goods fmal
seizure paid uniler protest the taxes on tkil
renuiinder of lot 24, .l!228. He then applitiHj
il mandamus to the treasurer to make the otitl
rection, but the court refused to interfeie, /J
/■(' Srrh'r mill Pillion, Tri'iir"'ir of tin- ('iinnlijJ
Oii/iirio, 22 ({. n. I IS.
Tilt; omission of the assessor to distiiijjTiiiili.iil
his notice to a I'ailway conii)any, between tlxl
value of the land occupied by the roiul amlt
other real property, as reijuired by the aet, in
not avoid the a.sse.ssment. Such an oniisiioi
may be corrected on appeal by the (.'ourtj
Revision and County Court juilge. Scraggt
(.'orporation of Loiulon, 20 Q. B. 263, disaenti
from (Ireat Western K. W. Co. i: Rogers, 16(i
M. .'>0Q, ap])roved of and followed ou this |xiiii]
Y'/«' (•'n-ul \yi:i/i'rn Ii. W. <Jo. v. Iiijijn:<, 29(1
B. 245.
The suspension bridge across the .Via^u
Falls at Clifton, with the stone towers,
supporting it : — Held, land and real propert]
within the Assessment Act of ISHll, s, ,3.
Niiuiarii Fall* Sunpi'ii-tiun Jiriili/'' Cuiiniaiujt
diiriliier, 29 (j. B. 104.
Under 59 (!eo. III. c. 7, it was the ilutyj
the Quarter Sessions to assess the amount j
taxes to lie paid upon lands, not exceeding i
sum of one i)enny in the £ of the statuttlj
value ; and where the treasurer of his o<
moti<jn charged every wild lot one penny in ll
£ of such value, the sale of land for such t
Wivs helil invalid, (.'otter v. Snllii'i'laml, 18 1
P. 357.
A lot, previously assessed as to the win
was, ou claim made to half of it, iissessed ail
this half, and the taxes of previous years a]jj
tioned Ijetween both halves : — Helcl, that t
was no objection to this. Stewart v. TivM
22 C. P. 284.
The patent granted the lot by north anil »
halves. The i>atentco in 1853 conveyed tbe|
tis a whole, and it continued in one owner i
the sole of 35 aces iu 1858. In 1858 and l|
821
ASSESSMENT AND TAXES.
252
I jj iialf was assessed separately : — Held, not |
lobiectionable. For the next three years it was j
ligsessedin two parcels of 105 acres ami .'l.Tacri-s,
■ J for the succeeding two years the nortli half,
ImiO acres, and the west part south half, ti") acres, j
Lere assessed, with a valuation of $:VAO on the
liole :— Held, right. Tlif E(Hiil)iifi//i Life Axsn-
„„ce Co. V. tWiiiixon, 32 Q. B. iWA. j
Held, that the 13 & 14 Vict. c. 07, ss. 4(» and
17 dill not make the list of taxes directed to 1k3 j
Areoared hy the tre.isurer hiniling. McAdk v.
Pi/,30Q. B.349.
Where three distinct lota were assessed in
nljj and sold for taxes, the sale was set lujide.
Bici/iVv. Jiilnitliiii, I'iChy. 534.
flie omission of assessors in a city to nuiko j
ill complete the roll until after the 1st May, I
ea not avoid tlie assessment ; and the person
jessed liaviug appealed to the ( 'ourt of Hevision
1(1 county judge, paid part of Ids taxes, and j
(fused to pay tlie rest on a ground inconsistent j
ritli this ohjection, wouhl l»e precluded from \
iking it- ^'i''/^'!'' ^'- J><>i".l/ii'', <^ IV 10. T. 1874, j
I yet reported. j
hvhere there were two lots on a particular
■eet with the same nund>er, one on the south
iie an>l <>■><! (>" the north side, and neither the
_ jineiit nor the sheriff 's deed on a tax sale
lereof di.tti"!,'uislied the one from the other,
sale wu.-. lield void for tlie uncertainty.
y)iiii(v. Wutkiiiiiloii, 15 ('hy. 332.
See 111. 2 J). 224; IX. 7, p. 244.
(h) Xoit-/{i''<iili ii( Linii/s.
Held under 10 Vict. e. 182, that a non-resident
jierof lands can only be rated on the assess-
ntroU by name at his own reipiest. Miniin-
hii of Bn-ini V. (Inuiiic, 5 (). P. 21 1. Affinned
ppFftl. ' K. & A. 27!».
jidthat the entry of a party on the assess-
|it roll as resident, when in fact he was a
^-resident, did not render his assessment nnga-
\, Dclilo'iiiiirrv. li(H-c,; 8 ('■. P. 107.
jTie term "lands of non-residents" means
iccuiiied land not asscsseil against the owner
jcciiiiant. .!/'"•' v. Riillaii, 7 I-. •!. 2!)!>. ('.
^ -Mackeny.ie.
•'"""^^■da're, as to the manner in which wild lands
loii-residcnts, not included in the assessment
^ were to lie rated under 5J((!co. 111. c. 7;
[iMimldc, such lands were not assessaldc at
,(W(frv. Siitlin-liiiifl, 18 0. V. 357.
till, that under the facts stated in this case,
odwas improperly assessed for the year
its non-rcsulent, being occupied, and that
tie teiiig therefore for more than Wiis due
intirely void. Allan v. Flslnr. 13 V. V. 03.
wer 13 & 14 Viet. c. (57, land was sold in
Ifor taxes of several years, incliuling 1851,
Vhich yejir the collector's roll had l)cen
pedto the treasurer, with his affidavit that
ion for not crdlecting the amount was
Kbe land was non-resident. It was proved
ly, however, that from the 0th February,
J until long after the sale, the land luwl
loccttpied by defendant's father, who live<l
P with his family :— Held, that the sale
llegal, Hinet v. Forjnf, 32 Q. B. 119.
It is the duty of tiie assessors to assess village
lots, tlie property of non-residents, separately,
placing opposite to each the value and amount of
assessment, liliirk v. Ihiri-'imjtou, 12 C'hy. 175.
For several years a parcel of land, containing
100 acres, was returned to the treasurer of the
c(uinty as non-resident land. In 18(50, fifty
acres oidy of the 100 were returned to the
treasurer • ;< non-resident : — Held, sufficient to
authorise the treasurer in sulxlividing the 100
acres for assessment j)urposes. liroohi- w ('iim}>-
hill, 12('hy. 520.
In a suit to impeach a .sale of land for taxes,
it appearetl that about twenty or thirty acres of
the lot were cleared and fence<l, and a bam was
erected thereon, into which hay nnide on these
twenty acres was stored in winter, by a person
occupying the adjoining h)t under the autnority
of the proprietor ; no one resided on the twenty
acres ; the owner was resident out of the
country, and had not given notice to the
a.sse.ssor of the township to liave his name
inserted on the roll of the townshij) : — Hemble,
that the lot should have been assessed as occu-
pied. I )raper, (.'. .J. , Hagarty, ('. .1. , an<l Owynne,
J., diss., wild were of o]>inion that the lot was
properly assessed as non-resident. Hank of
Tonm/o V. Faiiiihni, 17('liv. 514; in appeal, 18
Chy. 3!tl.
Sec //( rt: SirbriiiKl raxliiti, 22 (}. B. 1 18, p. 220.
11. KXKMITIONS.
I. I'rii/irr/'i liilil III) llii' Cniii'H.
I'laintilV in 1853 purchivsed crown lands
through the agent at Chatham, taking a receipt
for the lirst instalment. In January, 1854, the
commissioner of crown lands, in supposed com-
}>liancc with Ki Vict. c. 182, 8. 48, trans-
mitted a list to the registrar of the county,
(in the statement of the case set out.) Plaintiff
paid all the instalments on the land as they be-
came due, but obtained no evidence of his right,
except by the receipt. The land had never been
in the possession of any person, and the plaintiff
had always resided o\it of the county in which
they were situate. I'laintitl' having paid the
taxes from 1854 to I8.")!l under protest : —Held,
that these lands; were not subject to assess-
ment, ivs they were vested in the crown, no
license of occupation, lease, or patent thereof,
having been granted by the crown : — Held, that
10 Vict. c. 1.5!», s. 24, (f. S. I'. ('. c. 22, s. 27,
since repealed,) was not intended for Upper
(Canada : that sec. 13, C. S. U. C. e. 22, was
mandatory and not permissive, and that a license
of occupation should Ikj issued to every person
wishing to purchivse, Icivse, or settle on any
crown land. Shri-I v. TIk' Corporation of the,
C'oiinli/ of Kntl, 11 (!. 1*. 255.
Held, affirming the judgment of the court
below, 12 C. V. 284, that unpatented lands, though
held by purcluvscre from the crown who had paid
a part of the price therefor, were not liable to
assessment, although purehiutcd from the crown
aftcr.lune, 1853. Tin' CorfHiralioH of t/ii' Connti/
ofSinirof v. S/rirt, 2 K. & A. 211.
[See now 32 Vict. e. 30, O., ss. 108, 109, 127.]
I'roiierty, whether leasehold or freehold, in the
use or occupatiou of the crown, or of any person
%
'vn
w-':\m^
SS3
ASSESSMENT AND TAXES.
'.U\
!! h-
m
i
l\\
or persons in his or their oHicial oaijacity as ;
servants of tlio crown, is not aHHusHablo, citiiei' j
at present or as a eliargo njion tlic reversion. ,
SIkiii'V. S/iiiir, 1'2 C I'. 4,'ill. See, ,il,-in, .s7/a'' v. |
.S7(((»', 21 Q. P.. 432. '
Held, ftttirniing Siiaw r, Sliaw, 12 C. I*. >.">(!,
thtvt hvnd leased to a eoninuHsariat ollieer on
))ehalf of the secretary of state foi' war, and
occupied by Her Majesty's troops, was exempt
from taxation ; and that a provision in hiioIi lease
binding the lessee to ]iuy all taxes to whieli the
promises should be lialde eniild make no dill'er-
encc. But where sueh land before the e.xreution
of the leaH(! hail been assessed to the lessor foi'
that year: Held, that it was not <listliarged,
but that as payment eould not )>e enforced from
tlio crown, and the otlic^er luid [Kiid to the collee
tor under lirotest, the money nii;.;ht lie ri'ci vered
back. 'J'/ii' /'riiiri/m/ Sii-ri'ldrii nl' S/n/i- I'a,' W'lr
V. Tlif ('(ir/iofiit'"iii ';/' Tnroiiiii, •_'■_' (,). I!, o.")!.
Where the preniiwiis were so leased in .Aiiril,
having been previously assessed to the lessors,
but the roll had not been returned : Held, that
the property was exempt as :ij;ainst the crown
for the taxes of that year. T/n- /'riiiri/Kil Sirrr-
tnrij of Stall' f'nr iVnr v. '/'/h ('uririrnfioii nf
London, 23 Q.B. 47(J.
Sec ('"fin- V. Siilliri-hiiiil, IS ('. I'. ;{:.7, p. -'.".S.
•_'. (Hhn- Ci.tiy.
Land which has nf)t been dcscribeil by the
surveyor general is not liable to be taxed. M"
d. Bilf, v. <)n\ 5 <). S. 43.S. .See /)n, Mr(, •;//;■<
v. AlcDunal't, I (f. B. 432.
Under !(> Viet. e. 182, s. 21, only the land
occupied by a railway is subject to assessment,
not the superstructure, ^7r"/ \\'c<li'ni /,'. IT.
Co. v. Ji'oii-s'; l.')Q. I!. I()S.
The institution of the Sisters of Charity in the
city of Ottawa was held exempt as "a public
hospital" within the Assessment .\ct of 1803.
Quiere, if it is a "poor house" oi' "almshouse "
within the Act. Senible, even if so the parcels of
laud assessed in this case could not be deemed
"real or personal pro])erty" "belonging to or
connected with the same," so as to be exemjit
from taxation. /» ir tlic Sislrr'< of V/inri/i/of I/h-
Cifi/ofOUcini,'] \j. .]. loT. -('. ('. Armstrong.
Held, under ('. S. U. 0. e. ."», s. 3, that land
covered with the water.s of a harbour is not
taxable, aiul therefore, that the IhiHalo and
Lake Huron 1!. AV. Co. couhl not be taxed for
the (lodcrieh harbour. Jln/lhlodii'/ Ltikf lliirini
H. W. (Jo. v. Till' Ciir/ioniiiiin of lln' Tmrn of
Goderirh, 21 <.). P.. i)7.
Section 8 of the Assessment Act of I Slid
clearly exempts church and school property
from local as well as other taxes. //<"///'. s v.
Copelnnd, 18 C. V. 150.
Held, allirming the judgment of the (,>. B.,
that land owned by a city, but Icase<l by them
to a tenant for his own private purposes, was
liable to taxation, and that the corpor.itiim
might distrain for sueh taxes. Morrison, .T. ,
dissented, on the ground that tiie land was not
liable; VanKoughnet, C., and Spraggc, V. ('.,
on the ground that, though the corporation
might aue on the covenant to pay, they could
not tlistrain. .Vovd/;/ v. Thi' ('orporn/ion ,,i' ii.\
Cihi of Lowlon, 28 l}. B. ATil ; 2(i (^ B. 2(;,'{.'
[.See now 32 Vict. c. 3f!, s. 9, sub-s. 7.]
TTl. A-^sKssoris.
I. Ai>i>oinl iiii'iil of.
The council by i'es(dution appointed (nic |.
assessor, who v.ms sworn into ohiee aud nuule ail
assessment. 'I'his appointment wiis nuuhi liyJ
1 vote of three ag.iiuiit two. The election of itA
of the three was afterwards set aside, niiil l)y|l
subsecpient vote the resolution was resi.iiii|eii I
and a hy law pa.sscd appointing another assessntj
I lioth made assessments, and much eniifiHJiJ
I aro.se. Under tlies<( circumstances tliu KH\g\
granted a i|Uo wan'.into to determine the valiiljiil
iif tlii^ last a]ipointment. In I'l' .Mi'I'/h riijn »,J
l!rii„ii„, 17 <>t. I!. !»;».
2. hiiiiin of.
Held, th;it the assessors are not li(iur.ilt]|
eni|uire into trusts upon which lauds are li
but to view each man's prenii.ses and timl ,m
whether or not he is assessable or eoines uuda
any of the exemptions allowed; and tlwt tinl
assessor upon seeing a dwelling-house {lufirawl
as such by a ministci' of religion for liis iinvitif
residence, is liouiid to assess the oecupiiiit fwitl
no matter ujion v. hat trust the frecheld in t
land upon which the house stands is
Fniiicliiiii v. Till' Corjioriilioii ii/' S/. '/'//own.; J
.1. 24."i. ('. C. lluglK^s.
See. 24 of C. S. U. C., c. Ti."), i'ei|uiriii'itli(l
names of owner and oecup.int to he (;iitereil|
aiiplies to the assi^ssor's ndl only, not to tlic«i|
lector's. Colniiiiii y. Kirr, 27 Q. B. T).
The omission of assessors in a city to iiii
and complete thci roll until after the Istnf.Mii]
I does not avoid the a.ssessmeut, and the ]m
' assessed having a])])ealed to the Court of Itevi
and county judge, paid part of his taxes,
refused to pay the rest on a ground iuwiLsijI
with this objection, would be pn^'liiili-, ...^^^
taking it. .Virh'lc v. Ihiinjliix, (). 15. K. T, l$;^^BeIil, tli:it the aggivi^at
not yet reported ... i- i^ - .. .»
m
Where the county
mstiinentg under that
iiituliiied tlie |)ersonii
llages at ten par cent
tlie exiMugg directioi
funvd to quiwli the b
nj intimated that it i
|reliad unon for i)rotecl
itt by this course the
rty ni towns and vi
jtter than it should
bet) that the amount i
lewiueiit rolls, folluv
jottg: but,--}reld, th:i
nrt clearly could uoi
Koril mill Till' I 'or/iorin
Decla-'atiou on a ctuuit
the general pnr|)ose!
iip.'jyment by defendai
raised by them. I'le
real projierty not ae
occupied by the owiu
defendants) ami (J.
ill capitalizing the
tytiiero foi' the yeai-,
I at ton instead (if six
lavi-, anil apportionac
reral iiuniieip.ilities, wli
ittcil from the e.ipitali
' value of the i-atable
aiiinmit directed to
mcoiisly and illegally
iiirrer, a good defe'iee, I
contrary to the st.il
mI the defendants' ai
precluded from (d>jeet;
M only create a debt by
Held, also, that it
the by-law, for the (
might decline to do tlin
[deny tlie defendants' i-i
Bity on any legal ground
pc Coiiiiii/ of Lhii-ohi v.
^omioj Xiiiiiiini, 2.") ()."
Held, that the (uiiissioii of assessors to retai
their roll by the 1st of May is not an iiuliotalij
oll'enct^ uikIcv see. l7o of the .Asscs.smcnt Act,
Vict. c. 3(), (•., .'uid that if it were tlic t
.•issossors would nut be jointlv liable. ll'i(m\
Siihlir il III., 23 C. \\ 330.
j l\'. Iv^iAi.iZA'i'ioN ry i;An;s
Upiin MU application to (juash a by-law jnipJ
iiig a county rate, for disregard of the dircctiJ
of sec. 70, C. S. U. ('. e. Tm, as to equal"
the ratt^s ; Meld, that except jicrliaps whenj
dishonest intention m\ the part of the cfliiiifi|
i clearly shewn, (which was not the case ha|
I the court have no authority to over-nilci
j valuation (Ui the ground of its alleged luitaill
j unc(jiial ell'ect. Remarks as to the proper d
I of jiroeeeding under the above section.
I court refused a mandanms commanding
i council to proceed as directed by the act, i
I was not clear that they had not complied a
it by their by-law. (lihson and Tlie<-Wim«\
of llimm and Bruce, 20 Q. B. 111.
.les, to form the basis foi
lization for county pur
!s. 71 of the Assessment
, e value of the municipii
jiMt revised as.sessnient
IB the power of county cf
htion. The Miniirijut/if
V. l^lii' Coil,,/,/ „f
l-<'. a-AViisn„.
|eld,iuequalizing the rolls
I IS recognised by .S2 \
teen town and village i.r,
^y, that as the valuatioi
Wniy reduced by two-fi
»»ntycnmicilistoincrea
^te valuations of towm
jes, as the rolls st-ind, a.<i
Istatutory reduction witi
f-toTOand village rolls
•nation m the same wa
mentofthemo,leof proc
M the question for com
Hefore the judge of the Coi
•MS. a. Remarks upf
'the present system oi
p at a>ir equalization
' ■ n
i^i
ASSESSMENT AND TAXES.
220
Where the cuitnty council, in ui|U:ili/injj thu
jgiiieiitg umlertlmt Huctioii, lii,(l intentionally
iijj^li^juil the iKirHoniil iiropi'rty in towns uml
lllrtUeH i»t ten \yjv cunt., inatead of Hix, contrary
I the exjU'OBg direction in xection H'2, thu ccnirt
rfuwl to iiuiwh tho liy-law on motion, tliough
L^. j|itiinutu<l that it niiglit he huld inMUfliciunt
Ppelioil upon for protection. It was also objuetuil
at hy tfiis course the amount of ratable pro-
irty 111 towns anil villages was madu much
uter than it shouhl have l>ccn, and so (in
iect) that the amount shewn liy the last revised
leaauieiit rolls, followed in tiic by-law, was
roiiu : but,- -Held, that on this apiilication the
nrt clearly could not go liuliind t"iu rolls.
tto)'(l ii»'l '1'^"' ('<ii'l>'>i'"'"'ii "J IJifiihi, 'Jt Q. |{.
iDet'laratiim on a county by-law to levy money
k the general purposes of the year, alluging
ii-uivmcnt by defuiulants of the proportion to
wised by them. Plea, tliat in ea]iitali/,iiig
1 real property not actually rented Itut held
[occupied by the owners in the towns of N.
e defendants) ami O. and tiie village of I).,
1 in capitalizing the ratable personal jiro-
rtv there for the year, tlie plaintitVs caiiital-
i'attcn instead of six per cent., as directed
J law, aii'l apportioned tlioreoii among the
beral mnnicipalities, whereby $1,000,000 was
Utteil from tlie capitalization, and tho aggre-
valiie of the ratable property in N., and
J amoHiit directed to l>u raised there, was
tocoHsly and illegally made up : Held, on
hnrrer, a good defe'icc, for sudi capitalization
contrary to the stitute, and tlioiigli it
ieneil tlie defendants' as.sessincnt they were
ecludod from (d)jecting, for the plaintift's
ill! only create a debt by coni))lying with the
[ Held, also, that it was unnecessary to
blithe by-law, for the court ^n their disere-
f might decline to do that, though they cfiuld
Ideny the defendants' right to contest their
ility on any legal ground. Tlic ('orjniftitUni
ft/i> Caiinlij uf Ijiiii'i'hi v. 77/'' ('orjiiird/iuii hi'
iTuintof'Xiii'i'ii'", -•') Q. B. oTS.
|elil, t\nt the aggregate value of muiiici-
ties, to form the basis f(n' the calculations for
totion for county purposes, under sub-s.
It. 71 of the Assessment Act, 32 Viet. c. .3(i,
le value of tho inunieipality as returned in
jbst revised assessment roll, and that it is
lin the power of county councils to vary such
Ution. The ifuiiin/iitlifi/ of the Tiiirit of
jv V. The Coinitii of ' Xdrfolk, ."> L. .1.
-('. C!.— "Wiisnn.
leU, in equalizing the rolls, although a diller-
1 is recognised by .S'2 Vict. c. 20, s. 71,
lieen town and village proiKjrty and county
rty, that as tho valuation of the former is
wily reduced by two-fifths, the duty of
tointy council is to increase or decrease the
igate valuations of townships, towns, and
^s, as the rolls stand, as well as to make
Istattttory reduction with respect to the
V-to«iiand village rolls being subject to
ation in the same way as townships.
ment of the mode of ' proceiUire adopted in
m the question for consideration in this
Miore the judge of the ('ounty Court under
1 3 of 8. 71. Remarks upon the difficulty,
; the present system of assessment, of
linj at ajair equalization of the assessment
13
rolls in ditl'ercnt townships. In re A/ipeitl/rwa
tlii- ('iiiinti/ diiitiieil uf till' (!i)tmly ul' Siiiirut; 5
L. .1. N. S, 2!)t. -C.C. (lowaii.
\'. .Ai'i-nvi. TO Col- itr OK IIkvihion AND County
.kiMiK.
Under 10 \'ict., c. 182. ss. 20 ami 28, the de-
cision of ii ( '. (', judge is final only as to such
matters as are to l)u submitted to him, that is,
as to any alleged overcharge, or the wrongful
insertion or omission of any person's name, not
as t<i wiiether only the land occupieil by a rail-
way is asMussablc, or the superstructure as well.
(Irnit Wr.i/irn A*. 11'. Co. v. Itoiw, \^^ (^ B. 108.
W'liere the assesstu's illegally assessed the
superstnictiire of a railway as well as the land
occu])ied by it : —Held, that the company might
defend an tietion as to the superstructure,
alliiough no .•vi)j)cal had been made to the Court
of licvision, and althougii the whole was called
land in the asses.sment. A/iiiiirl/nilUi/ <if' Loiuhm
V. Ili-ioi Wrsti-i-H It. W. Co., 17 Q. B. 202.
It is no defence to an action f(U- taxes, that
defendant's property M'as rated higher than the
average value of land in the locality, as assessed
for the same year ; the only remetly in such a
case is liy appeal to the ('(Uirtof llevision. .S'. C,
II,. 2(;7.'
Semble, that a lessee of a liiuise in a city can-
not be assessed as occupier when he no longer
occupies it, although his term continues ; But
- Held, that the plaintiff having omitted to
appeal wiw liable to pay the sum assessed against
him, and therefore coultl not replevy his goods
seized. AfcCiirroll v. \V,i //,}»■<, U) Q. B. 248.
AVhere property was assessed in the occupation
of a crown official and not appealed against, and
taxes collected thereunder — upon reidevin : —
Held, that under such circumstances the party
assessed need not a]ipeal to the C!ourt of Revi-
sion, tho assessment iieiiig a nullity. Sham v.
Shaw, 12 C. \\ l.')0 ; S. C. 21 (^ B. 432.
Held, foUowing Corporation of Toronto v.
(Ireat Western R. \V. (!o.,2r) Q. B. 570, p.
227, that a person assessed for property exempt
from taxation, who has appealed to the Court of
Itevision (but not to the county judge), ia bound
by their decision. Scrta/ii v. The Corporation of
th,- CUji of Loiiilou, 2(! Q. B. 2«."}.
The judge of the C. ( '. , on appeal from the
(jourt of Revision, by which the assessment of
a suspension briilge as laml at .^150,000 was
affirmed, reduceil the assessment to $1000, on
the ground that all except the land on which
the towers stoo<l was personal property : — Held,
that his decision was final, though clearly erro-
neous, and could not be questioned in an action ;
for he had jurisitliction to reduce the aasesBment,
and the wrong reivson given could not make his
judgment less binding. NhHjarn Fnlh Suiqwn-
Mioti llridijr Co. v. (lardnvr, 29 Q. B. 194.
The omission of the iisscssor to diatinguish in
his notice to a railway company between the
value of the land occupied by the road and their
other real property, as required by the act, does
not avoid the assessment. Such on omission
may be corrected on appeal by the Court of Revi-
sion and County Court judge. Great WeMfeni I{.
If. Co. v. J{og,'rs, 29 Q, B. 245.
|ti:l
'M
vi'^m
■ III
; vk;;
'.,'\'\!
■!,r
S97
ASSESSMENT AND TAXES.
in
'I -^
■ ^11
WhorobankBtoekiKituMosHulili', l)i'i'iiUHC'()wiiu(l
out of the proviiu^f, wu* iihhui«nc'<1, uikI hiiuIi
ataeMintjnt coiitirtiii'il )>y tlu^ ('dui'tut' ItuviHimi
and county judgu, it wah llulil, on iluiiiurriT, in
I'upluvin for goodH diHtniinud, that tliu dufitet of
want of juriHdiction wiih not ciirod. .Y/V/'A- v,
Jhiiijhtu, y. H. K. 'r. 1874, not yut I'l'iiorti'ii.
Held, that n inuniciiiivl counuil hat no iiutho
rity to place nivnicH on the uMHcHHUicnt roll after
it is tiually ptuiHud )>y tlie revising triliunul. Iti-
uliiatje rel. Clhif v. I'/ilitiiii, 7 L. •'. Ml < '. <'.
Mackenzie.
A county council, on a iietition for a revision
■of aagesHUient untler '24 \ict., c. US, without
hearing the petitioner furtiier than reading liiH
petition, dianiiiiHed it : Held, that tiie diHmis»al
of the petition wan a HutKcient decitiioii to war-
rant an appeal to the C. <'. judge, hi /•'■ t/ic
Jiular of' the (.'. ('. of f'l'r/h innl ./. A. Iltiliiiinoii,
12 0. P. 25->.
The plaintiD'tt had for several years appealed
from the assesMinent of thfir property to the
Court of He vision, who had decided against tlieni
and from thence to the County CJourt Judge, who
hod reduced it one third, on tlie ground that a
large portion of their building wa.s occupied Ijy
the courts. In 1804, the same assessnient licing
repeated, they a])pealed to the ( 'ourt of Kevision,
who said they would consult the city solicitor,
and that the plaintiHs need not appear again.
The plaintitFs' solicitor wuh told i)y the clerk of
revision that no judgment had been given, and
found none iu the T)ook wlicre their <lecision.s
were entered. The collector in October, called
uix)n the plaintiffs' secretary, who sup])osing all
was right paid the sum asses.sed. The nii.stake
having l)een c'.i.,3sri;red in the following year :
Held, that they might recover it back, for the
Court of Revision not having determined tlie aj)-
peal, the roll, as regarde<l the plaintiffs, was not
*' Knally passed," within sec. til of C. S. ('. (!.
c. 55, so as to bind them. Ilagarty, .)., dissent-
ing, on the ground that the return of the roll
unaltered as regarded the plaintiffs' assessment,
was in effect a uecision against them. Thv Lair
iSocieti/ of U]i}icr Viniiii/n
To)-otito,2oq. B. I'm.
v. '/'//(■ ('itr/iorii/iiiii iij'
The Court of Revision conlirmcd the assess-
ment of a lot of land occupied by a railway cfun-
pany at l$1200 annual value, and assessed the
station built upon it at #1500, and the county
judge being appealeil to confirmed the value (If
the station, ''subject to the (lucstion" whether
it could be assessed in addition to the hnd,
"and left for the determination of a higher
court," whether, after the valuati(m of the fan 1
had been fi.xed in accordance with section .'H> ••■*'
the Assessment Act, the building could be
adde<l : — Held, that this was in effect a confir-
mation of the assessment, the reservation being
inoperative, and that the court had no power to
review the decision, '/'/if t'or/tonition of f/ic
C'itif of Toronto v. T/ir dnat WiMi'ni /,'. fV. Co.,
25 Q. B. 570.
An elector served the clerk of the munici-
pality with notice that several persons had been
wrongfully inserted on the assessment roll, and
others omitted, or assessed too high or too low,
and requesting the clerk to notify them and the
assessor when the matters would be tried by the
Court of Revision. On the 22nd of May the
court met, when it was objected for the |iaiii„|
nanu'd that six days' notice had not been givr.!
)iut only live. The court then adjouriiud n,,^!
the .'Wth, directing proper notice to bu giv^I
which the clerk omitted to do, and in toii^f
ipience they refused on the .'UHh to liuw t||l
appeal, and tinally pasHed the roll. On i\\n\\A
tion for a inandamu!) to compel them tn ||J
and determine the matters : -Held, timt tbi
were right, the si-x days' notice Iteiiig \\m^
tively retiuired by the act ; and that tiiu tm^
ance of the parties by their counsel t<i nlijett J
the want of such notice was not a waiver «( ,J
.Semble, that, if this were otherwise, the \,m
ciun-se would have been a niandaniiu tn i
mayor to summon the Court of Kevisidii, iii„|J
section '>5 of the ('. S. U. C. c. 5.'). /tnpm\
'f'/ir Cniirl of /ifnu'niii of thv 'J'oirn of ('uriimll
(^ B. 28(!. ' ' ' '
All island forminu part of a inunicipiUity,
situated in no road division, and (leriviiiB,^
beiielit from the roads of the niuiiiciynJ
having iieen assessed for statute labmr, tif
owners appealed to the Court of ItcvinioiiaL
thence to the county judge, on the gidiimliJ
ovi'- assessment, and that the property wiwi,
lia1)le to statute labour. On an a])pliatiiiiij
stay proceedings before the judge : Helil, li^
thoug'i a ccmnty judge has authority to inLia
or reiluce an assessment, or to rectify oriiini
or oniissions from the roll, the (picstiiiii i
liability for statute labour is beyond \\u jiin
diction, .\ writ of ]iroliibition was atx'ordii
grant' ' 7'/ir Tomm/ii/) of IViilMiiKiluiiii v
Lwi;i /'■ 'III Co., 5 1'. I!. 27'!».— (ihaiiili. (;,,!(]
Power of the ( !ourt of Kevision toginnttit
!'or eitering appeals bevond that presoriljeijlj
the Assessment Act. Practice in appoiil cai
Notice of appeal, and necessity for sta_
grounds as caiwes and niiitters of ap|)eal. M
of c(miisel to be heard befcn-c Courts of lievij
and all other courts. /« tlw First /JirixiuiiOt^
ill l/ie Coiiiitii of Kli/ni, (> L. .1. N. S. '.'!)■), -(;(
-Hughes.
Tlie tlirec days allowed for service of nutietl
appeal from assessment, counts from the til
for the decision of each case by the tVnrtl
Revision, and not from the day tiie court cIm
/ii r,' /Joiniri/, 8 L. .1. N. ,•-'. lOS.CrJ
Macarow.
Hehl, that the clerk of the Division C'oiirl|
not bound under sec. (i3, sub-s. 3 of thcAi
mvnt Act, ;12 Vict. e. 3(5, O. , to receive an ap]
uiiU'; i the sum of $'2 be dejiosited witii likl
wiim ity for costs : that if so disposed he mayji
credit for the amount; and if he doesw.!
,i,_;peal is properly entered, and ouglit to !« W
by the county judge : that a complainant to I
C(Hirtof Revisicm is bound to ajipear ami snjf'
his ajipeal ; but if he fail to do so, the cmirtij
hear the complaint ex parte, aiul if theyi
the assessment the eoinplainant inayapp(
the judge. In re I'liin v. Town of /imiilfm
\j. J. N. S. 2«1.— C. C. -Jones.
See //( re A/ipral from t/ic ('oiinljiCoHtti
Simrw, 5 L. .1. N. S. 294, p. 22(i; iS'iicM
Vitii of Toronto, 12 C. P. 185, p. 218.
VI. Statute "IjABouit.
A party must perform lus statute labour i
called upon within the division of the tor"
AHSESHMENT AND TAXE8.
230
Wllil'll
•,'01
I A vr"\
at
Ml
li,. roHJilcH. 'I'li^ 1 \. Jtiiri iiiih, It (^,
rit'tiil' III liiiiil i'uiiiii>t liti i'iiiii|K'll('il til
itktuto laNitir in tin- towiiMliiii in wliiili tlic
liuH iinleHM liu in liininulf ifHidcnt tlifir.
,,'v.'/,.,r..». i>Q. ».-•■■«:<■
The nmnifiiiul cuuiu'il "f a village iiui iiniioHi'
uerfiiriiirtnoii (if Mtutiitti hiliour, nr ii tux in
thuri'iif. iinly iin tlnme inhabitivntri nut ntliui'-
MgeHHUil ill '■' /^'ii'i''<'iii V. 'I' /if Miiiilri/Mil
cJil, iimlt'i' in * 14 N'ii't. I'. (17, wIujio a mm-
leiitiiwMH sevuriil lots in tlu^ Miinn' tnwnHliip
ciiuiitv. tluit 111! in I'hargoiilili! with the nite of
"imutiition ustinuitoil with lefeienie to the
leiif Huoli lilts tteimrttt»ily, iiml ciinnut oliiini
lave tiiein ratml according to their aggregate
Till' ('iiiiiiil'i ('oiiijiiiiiil V. /loiriirJ, !l
uiiicipal ciiriiorationH, lunler !•_' N'ict. c. 81,
16\ict. c. 182, could not fix the coniinii-
tute lalioiir at a higher rate than
&1 per ilay. In ''' '/''' •""' ''''• Miiiiii'i/inli/i/
jc imiiiiciliality "' '^ town.ilii|i liy liy-law
itcil that any I'crmin lialde to perform statute
r wliii, after heing tluly notitied, Mliould
ictiir refiiHU to attend, hIiouIiI forfeit and
jg. f(ir every day he .should mo neglect or
mill the payment of such tine Hho\dd
ftmicli nurHon from the perfiirnianci! of the
re(|uire(l of him l»v the liy-law ; Held, not
iDiiit to compel commutation at a rate
ilinx '.'»• M. per tlay ; and that the hy-law
000(1. Ill ''■ /'I'liiii I'l'"'" "'"' '/"' Miiiiii'i-
nf YiiniioiUb, ir>Q. 15. 14.
lY-lttW ilireuting that the over.<eer» of high-
shoulil liriug any jierson refusing or neglect-
perform statute labour luiforo the reeve oi'
jarest justice of the peace, who upon ciin-
mshonlil inipoHC a line of 58. for each day's
;t, with costs, and adjudge that the ^lay-
oftlie said line and costs should not relieve
from perfornuvnce of the labour ; and in
lit of myiuent should issue a distress war-
li— Held, good. hi rr Slmlilanl anil tin-
■iimlilij iif till' Unihil Tiiinixhliii vf Wilhi'r-
ih-iilliw, mill Fi'ii'"'!; 1") Q. B. l(iH.
e plaintifl's were incorporated by 10 & II
|c,!t.i, to make a road /(v<»( the town of
tcdlle to different points speeitled, and had
ight to claim the statute laiiour, by commu-
I or otherwise, to the extent of one half
ition oil each side of their road, and to
tit from the persons liable. The village of
tiville, iiicoqM)rated in 1837, was within
klf concession of plaintiffs' road, which ran
kbit III 1858 the village council imposed
Pecteil a rate, of which a certain sum was
mmtatiou of statute labour : - Held, that
were entitled to recover from the
intt, as money had and received, so much
i Slim 08 was received in respect of persons
Wrty forming no part of the villago of
pille meiitionctl in the plaintififs' act of
loration, hut within half a concession on
lide of their road. SlreHxmlii' Plank Rmid
\^ V. Vor\ioratton of the VUlaije of Sttreta-
jg.B. 62.
kr C, S. U. ('. c. 55, s. 8(5, a w.arvant may
I impriton a person for uon-^iaymeut of
statute lalHtur tax, without lii'Mt nuinnioning him
to aiiHuei', or making a conviction. Hr;)iHii v.
Munis, •.•! {}. H. ;«»•.'.
It is not iit'ccHHary, under V. S. U. C o, I2(i,
to set aside such warrant before an action can
lie brought against the justice, /h.
The point decidttd being new, the court (lis-
charged without costs a rule iiUi obtained tu
nil the cii
iiiiii obtained
i|uasl
Meld, that under li. Vict. c. 182, and 22 Viut.
>'. !M,), M. 40{), statute labour was imposed on all
persons assessed on the assessment-roll of a
to^^n, whether residents or iioii-reHidontii, and
tli:tt in the case of the latter the commutation
w.i; lixed by the statute at 2s, (id., no by-law
being necessary unless the municipality intended
to lix it at a higher or lower rate, /{oliitmon v.
'I'lir < 'iirjiiiiiitiiiii lit' till' '/'iiini lit' Stviilfut'il, 23
(I H. iMt.
See Till Tiiini-^liiji ui' Wiil-iiiniliiini v. The Luny
hi'tiil (Joiii/iiiiiit, 5 I'. U. •_•■'.), p. 228.
\'ll. ('iii.i.i-.cniiN OK Kaths.
I. /)'inliriis mill Silli;
A/i/iiiiiitiiii lit mill Aiilliiirlti/ of Colli'rto)'.] —
Held, that city and county councils cannot
legally pass a resolution under the 104tli see. of
the Act, ('. S. V, ( '. c, 5."», to continue the levy
and collection of unpaid taxes by distress after
the return of the collector's roll, and that such
roll must be returned at furthest by Ist March
in each year. Sitiifli v. Slnnr, 8 I.. J. 297. —
( '. ( '. Mackcn/ie.
Hehl, under (.'. S. I'. C. c. ,'>5, that after the
collector's roll for the year has been formally
returned the municipality cannot appoint any
one to collect the unpaid taxes by distress ; their
collection belongs to the treasurer. Ifolcuiiib v.
Slimr, 22 Q. B. 112.
In replevin defendant avowed, setting out the
assessment of certain taxes in the City of King-
ston for the years 1855 and 18.59, the delivery of
the collector's rolls to the collector for those
years, and their return by him, with the taxes
hereinafter mentioned appearing unpaid : that
the defendant was duly appointed by resolution
of the council, instead of the collector for those
years, to collect certain taxes remaining unpaid
after the return of said rolls : that certain per-
sons named were set down and assessed on the
said rolls as owner and occupant of certain real
projierty for a sum mentioned, pavment of which
was duly demanded by the collector for those
years ; and that at the said time when, Ac.,
(l)eing in 1801) the defendant took the goods in
(piestion as a distress for such taxes, the same
being in the plaintiff's possession on the premises
so assessed : — Held, on demurrer, tnat the
avowry shewed no defence, the council having
under the circumstances no authority to make
such appointment. The plaintiffs in answer to
the avowry pleaded several pleas, denying tl^
assessment of the several paiiiies as alleged, to
which the defendants replied, so far as it naght
be intended to rely on any error in said assess-
ments, that the collector's rolls for said years
were made out by the clerk from the assessment
roll as finally pttssed, and the assessments in
question correctly transcribed : — Held, on de-
, ! il
^'1
;:. , li
,.t: \i-&:
231
Af;,SKHSMENT AND TAXKS.
it
i
I
J
luurer, rciiliorttioii lnul. llnK'ninh v. Shun; 'li
q. u. ft-2.
Held, on uiipuiil liytlic cliiuf suiu.'i'iiiti'iukiit ol'
education, that ii oolltH.tor of H(.'lio(d tiixcH might
in 1S()1 oolluc'.t liy distivsH tiio tiixos for IS.")!!
and 18(10, not having made hi^ final rctnin of
HUcl tnxen as in arroar, ami licinL' still coilcctor ;
and— y«nilil'!, tluit in this case, tin.' iiiaintiH' who
iMini-'liviiied Ol tliL si'i/.iirc havinf; Km I to it I'V his
oWK uoudiict, till! procciMling siioiild in thi^ l>i\i-
siou Court liavc boon npiiold at all ovonts. < 'lihf
SH/H'rhi/i'iiili'iil <if Kiliifiiliiiii, III I'l Mr I.I nil V.
Fnrri'll, 21 <^ \i 441.
The tiiiiii for hnying
of Kingstor., iiniiosod
185r>, was extcudod by
oounuil, undor 18 \'iot.,
a scliooi tax in tiio city
liy l)y-law in Dt^uoiiilioi,
resolutions of tho city
:l, s. ;i, until tho Is't
August, ISrui, and again on tlio 22nil Oocomlior,
185(>, to tho. 1st March, IS.">7 : Hold, that tho
collector, who was tin; saiiio iiorson for Itoth
years, might distrain liotwocii tho 1st of August
andtlie'22ud Docouihor, I8."i(!, although mirosolu-
tiou extomling tho tiiiio was then in forco
McLuiiii, .1. diss. ; Xnrlirrri/ v. Sti/i/ims, l(i (,).
B. tin, followed in Mflirhlr v. iUivilluuii, S ('. I'.
Hold, no olijootion to a salo of laiul that tho
collector was lioiiiul liy tho act to uiako his re-
turn on the 14th of Deceinhor, hut delayed till
the 8tli of Aitril following, for that it was a
matter hotween him and tlio inunioiiial council,
which could not |nvjudico tho titU^ ; and as they
received the return without oltjcction, it nii^ht
he assumed that tliev had aiiiHiintod tiu! .Stli of
• ■ ■ Mrlhiiiill
,1 III.
1/.
Ajiril to iiiako it on
Doimlil, 24 ii. H. 74.
Defendant was duly aii|i(>iiitcd collectdr ui (ju'
municipality for the years 18«').");md IH(i(); Held,
following IS'owlterry /•. Ste]dicns, Hi (,). K 471,
(Jhicf Sniieriutendent of Schools r. Kariell, 21
Q. B. 441, and MoHride c. ({ardliain, 8('. I". 2<.H!,
that he had authority in I8(>() to distrain for the
tivxes of IS))."") upon tho owner of proini.ses duly
assessetl. Culiiiiiiii v. Kin; 27 <^ I!. •"•.
vSection I2(i of the assessment act, .'{2 N'ict. c,
3(), O., directs, that when the county treasurer is
satisfied that there is distress upon any lands ot
non-residents in arroar for ta.xes, ho siiall issue
a warrant under his hand and seal to the col-
lector of the municipality to levy. The war-
rant was tested "(iivcn undor my iiiind and
seal, being the corporate seal ;" and tiio seal
bore the same form, emblem, legend, &c., as
the county seal. The collector sold the i)lain-
tiff's goods under it, hut it was not shewn to
have been authorized by the county ctuinoil, nor
had they received the proceeds of tlio salo :
Held, that they were not liable in trespass or
trover. Siiiilir v. Tlif ('oriionitimi of lln Conii/i/
of FivHtfiwc, -M Q. B. 27.').
Demand. \ - Where several devisees and execu-
tors were rated to a school r.-vte in resjiect of the
property of their testator as ".lohn A. and
brothers," which entry ippearcd to have been
made at the instance of s uiio of them, and they
hatl received tho usual notice of assessment in
that form without aiipealing ; Held, that a de-
mand made by the collector on ".lolin A. "was
sulfioicnt to bind the othoiB. Aiiplnjitiili cl al.
V, araham, 7 C. V. 171,
Hold, that a statement and demand of tixrtl
art! nut a condition precedent to a distress in ({]( I
case of non-residents. Pilildi/iiiiri' v. Ilitkn- \\
V. v. If,7. '
((mo N. .S., tiio plaintill's son, was asucsswliul
18(18 as a I'rooholder for #4.'')0 on real cstiite, auk
$'2i)0 on personal propc^rty ; and was on tliecfl!.!
le»!tor's roll foreount;,' rate, !*!».7r» ; schools, iiyoj.l
townsliip rate, .T!i2.(i(> ; and dog tax, .yj.OO, iiunj
.ij!2l..'{7. Tho collector was not aware Ikiw nmclil
was fill' real and how much for(iorsoiial iirimertrf
and he ileniandod the taxes from the plaiiitilf t,!|
wlioiii N. S. had made an assignment in Aiimut,!
I8(>8. Tho plaintitV otlorod to pay him tiie Ujl
on the real estate <inly, but he tendered iiii iikiikJ
and i'oi|uii'ed a receipt in full for the lual pn^l
jiorty. The dcfoiidaiit, thoroupoii, sei/.utl (jn nj
|irtmi.ses yoods which belonged to N. S, ; aiidtit
plaintiir Tiiouglit trosi»a.ss : Held, iiiulcr 29J
.'tU N'iet. e. Xi, that the deimi 11(1 upon the ijlaj
till' was siillieient, he lieiug the person wluioiiji
to pay. Si/iiirr v. .Mnoiiii/, .'10 t^. H. ."i.SI,
Held, that the goods of an occupant uluit
possessionof ])i-omisos after assessment well' HjUi
to distress for taxes jissossod on the iireini
against the previous oei^npior, and tliatadtnu
on such occii]iant was iinnecessary, a ilcnu
having been made on tin; prtnioiiH ^vcmdl
Ainj/hi v. Mliii.t, I8('. I'. 170.
Willi! mill/ III- Kii:iil.\ Held, that cxniito
and devisees in trust of land were pnipnlvi
sessed asowiiors, and that their own gdiiilsiiiiijl
Ih! st!i/ed for the taxes. l)iiiiiUiiii \. Iliufni
(,). |{. 27(i.
A lot of land being in arroar for taxos fur J
years up to I8.V.(, inclusive, during wliicliitl
been as.sossed as "non-resident" lain!, wxi il(
rotiiined in 18(i.">, under 27 Vict., c. I!), asu
pied by the itlaiiititl', who had bd'oiiic teiiMt|
it on the hit of .\pril ot that year. Tlim't
wore placed upon the collector's roll, and inn
to satisfy them he seized the plaiiitiH's
I//II))/ iiiiii/liir /lit in tho same towiiMhi|i: -ft
that such seizure was unauthorized. WnivM
Cniilli'; 2.')Q. B. 177.
By agreement between the plaiiitill'a aiiil
Hric and Niagara Railway (.'oinpaiiy, tlic(i
tilTs were woi-king the latter railway with I
own engines and ears, and defendant its collei
seized the plaintiffs' car on such railwavj
taxes due by the lOric and Niagara Itjiilwayf
in respect of other land belonging to tliat (
pany : -Hehl, that such seizure wiu unanj
rized, for the car when taken was in the |
titl's' possession and their own pmiiertv.
Wrstini R. II'. Cii. v. RiiijirK, 2!l t^). B.''.'i;i.j
Held, that the goods of a lutnro (K'cii|
who took po.ssessiou of pri^mises after iLssi'ss
and was in possession before the return (
collector's roll, were liable to distress fori
.•issessed in respect of tho premises ^xm
previous occupier, and this altbongli thcr
were not at the time on the iroperty i
assessed. Amjlin v. Miii'm, 18 C. 1'. '"
I', owned n boiler and smoke piiie, whid
been crectcil in a building of which lie «■«
lessee. On the lOtli of Htjbriinry tlicywa
for cit^ taxes due by him, and bought t
iilaintiff; but the wiiolc purcluisc rmi
being paid, they were left in charge nf tl
chamb'-n-laiu. On the 23rd he aettkd their
AHSKssmfjNt ANI;
gd wnt, reiiioviiiif the ff„„,h on tli.. •>«!m i
i«y were Hoizo.r f„r a-iit ,| t ' h *''• ^''""
TAXE8.
234
fol.l. «l«o -that fl''*;. '"•''" t.".«"^'l'
ecoHBi-leml^ in tile to " '7';^ 7 ?'"*
lie sale oh the l»th of K-b n v / "'" ""^■''
■♦•'• U ( . Mnokeii/ie.
Held, tluit 11 plattiiii; lUiuliin.. -t... i-
H-rwithontfuHtenini w th It. ' i'"^' "" ^''"
work it, WUH « iitto II K" '"'*'•''«''''-•
A bailifl' haviiiir ji u-.ii.,.,,,,f r.
. distrain for t,to.s Mno";;,/'"" '''V'"'.'^''^'"'
rent to the preniiseH, HhiTo' A V '.'"''!•■' )'""!«,
tapn>pertyofhi«ow;"j;;,,Vi.S^^^
le wnouat diii!. Tlio hailitt' , ""^'^ "* t« l'ovij
mmg^ l-uirof I. Mci tlu 1 ^r^'^''' "«'«te.|
nch AfwL at the thn^t;;"^ :;?;':;:-'
^^r;^:atth:thn:s^:'^t1'^'"^'
order to, .80 them, In.t i S... /' ;?«;«""
;ri^."^;i;;;j"'t;^;];.-';-;l,t.uotTi.;;
iwii-kw, who v((l ill fi,., i, , ' "'"fe''''l to liiM
ray from home. The IfT''. '"'^^* •''•^ ""^"
^.Ithen.forthetaxeH t 'l '■'■'^'T' *''''* ''^■
en,, hut A. .Irove I e m a f .?'"'""' '"'"•''
«r the- hailitt' retiune 1 '?,•/"';' t "'''"■ ''">«
nn«renlevied.ita,,pe,;}.^,':.:^'^£t,^-;;"';''.
« belonifed to the Hou-in-l,t« I f"'?
, ."' " i'«rt of the Htai.h ,;.";." ; ^V'^
hm.. were in the n .r^sio;; ''r^' '^''''
.lelj.aei/.ure under Ui \' o , 's . ' A' '""'
It the fact« proved a. m nnte I ? '' "1 '"'"'
mv. hi,,,, 18 i), ,j ''.:;:."""'■•'' to a .h.stre,s«.
, A justilieation for taking ^^^'7'*--'«-
^••■sHury to allcT'e that n f ii^, "'""'^' " *«"'"e-
•" .' '^' lHM.1 oef^upii , S :!:.?«"'^'"t *•"-• value
«i";^l.e.l f,.„n, that of ila ;'''*' '"'''« •'•»«"•
;;■• t''"t they had no othe ,'';?■ '"'" '"""P^rty.
J legal authority for fj, . , -^ '- '"'•''tor hav-
f.KaheraLf;,.^^J':3
bxe«, .fintrained l,y his Llii f' h ^''■"''* ''"^'
Ihem with other sums n' ." "'" "'""""t
^n i^plevin :- -He Id 't' :'"l'i'^ ^•••ll...tahle.
^.^'ereneparable f,. t th il '''"r ^"^"^ •'''"■
Mnotiie. ^^.•../M-\y;c:/:ri;:'^r,';'
hi He .len.an,le, Ith a . V'"'-'"'""^ I
h" I8«8, and the a ii ' «• '"'^'«""'«nt
Ne tax on the red cS e .if r't I " ^ '
real property. T' ? ii' "^''•'"I't >n full for
• ■**■, and the plamtiff- ll,, .' ''"'""gee
Ubt he could rtrcie^^'f' 'i'f !««« -
f^ M'l the eourt would, f' ^"'' '^ «"« "-.t
»'fcHmount«e,3 .'r'r "'''*''">•
%, except the ,*2 .l.JtL T V*:*"""""^
«wable,andtheoM t ' '"'"' ^'"» s'lm
^"fcsfori Wth tie ro,r'w *'""'«''--l.
''•'"" ti.e eolleetor to .liitr in J''''^' " ^"'''•'"'t
•'^•."" l'i« hi(.,|« Hont t tl. : "•'■ *"*•"' ''"e l.y
''"'"*<='' ""t to hin. pi „*j L'';;;:'";^'"'. where /
«"'l'<ient to, ..over th.. • ^. ''"* "*" amulv
■''^rver, insisted oS^ /''»'« baiff
; • ••'■used to let^'tin, ak ; .'" "'*'' ".'«'". »>ut
t "-V iKdonpl to his H .. n pr- r^'.'.'« "'«*
the h.Hjse, r.,,twus then aJi,^' ^''" ''^'-•'» '"
r"'",'''"^''"<"l that iue..:-fl "",'""'"-•• T'"--
'"'"«'' l"= .lid ..ot nd 1 "■"'/'"■"'«**''«''.
tl"^". away, an.l thre hiVaf?'" '.'" >^ ''''"Ve
f"!'"<^<l un.l took then r,. M *'"-' '""'iff re-
•'^^'"H IHOHont. '/ K 'oi "" ^''^ r*".'^'«. •'" "i.e
;4'lH^tred on the tr 1 tC h.;'l'''""-"'.' '""' ''
t<>theso,. in-hiw, who keot M "•"'''"'' '«l""«»<d
«t.d.le reserved f. r h set. ,! • "" '" " J««-t«nhe
"•• ^'vi'lonee that I, ei■r^•'^ /''''«-•« wa,
;vH.v .n the e.xeeution of tu : ""'^'•f^'-e'I >" any
•''"'t«: Held, AlcLean r 'T''^''"!'."^ ''"thdefen-
'""'«'• KiViJt. c. 182 H V.'Vl ' i ^ t"«eizure
'i;-H...nte.l to a .listrel ' "l ''*' ^*''*'' P'^ve.l
Lcrefore were ent£e •t,> ^ . *''f ;^^«"'J«»t'«
, '•?■'•« "'ife'l.t perhapH he ahl^"- *-'''' **'?"«'' the
"f •''-■t.on for his unrlLona '" «""t''er form
hp- Hohinson. C. /. Xch'T '""S. Q"'«'«.
; this ca,se eo-ild h^hellH M 7 *'',*' "'"ector in
|v. /V,, ,«(;;\,;'g;'- 1'ewaHlial.le. AVal^"
='«■*- ■' /u« bailiff' lo'r ;'"«'r«"'l« for the
^^"'i;: .*u,Ht t e iS; ■■'"';- ";***"»««»"
" f' •'., 29!). -r (■ •• ,
Act. <-'. S. U. C. e. 55 .re »,?! ' i'^^^-nt
"wncrs oroeeupantM by n„','t'T "'J^^' b««"!ne
l^twcen the jnakin^ of t?- I * '"■ "'h^-win:,
return of the oollcctorW ""TT"^ J""' the
Held, ihr,* "thp Der,,,
tr.x«8," mentionca"in <j"vi'''^r '*"*'**' t'*y the
1 '
:i4
235
ASSESSMENT AND TAXES.
«}''Hs37
1:1
'I' .
are persons wltose names appear uii the collec-
tor's roll as owners or occupants, or pei-sons
who have become owners and occupants by
purchase or otherwise between tlie time of the
making of the .assessment ami the return of the
collector's roll. I^inith v. SIniir, 8 L. J. •297.-
C". C. — Mackenzie.
Held, that the neglect of the collector to
enquire with auHicient care for the address of
the party assessed on his roll, in order to trans-
mit a statement by ])ost under the 4Ist section
of 16 Vict. c. 182, did not invalidate a sale of
land maile for non-payment of tliosc taxes.
Allan V. Fisher, 13 C. \'. 03.
A collector of taxes or his bailitt' distraining for
arrears of taxes, is entitled only to two dollars
for distress and sale. He is not entitled to col-
lect from the debtor, poundage on the amount of
taxes levied. Mnrroi/ v. Mi-Xnir,'! \,. ('. (i.
14.— C. C— I>)gie.
The provision re<iuiring certain rates tn lie
kept separate on tlie collector's roll is direct<»ry
only ; and whei'c it had not been observed, a
sale was held valid, i'ook- v. ./o«<'.< 17 ('by. 488.
A sherifl" returned to a ven. ex. and li. fa.
residue auainst goods that he had made .^ilO, out
of which he had paid a collector of taxes !$48.;{!)
claimed by tlie collector as taxes due by tlie
defendant at the time of the seizure under tlie
writ on land upon which tlie gooils were, and of
which the sheriff had notice prior to the sale,
and that he had rctaiiie<l the balance towards
his fees, &c. No distress lia<l been maile I»y the
collector : - Held, that the sheriff must account
to the execution creditor for the §50, liecause a
distress by the collector is a necessary antece-
dent to obtaining the bcueiit of tlie statute.
AtMmd v. (irinif, 4 ]'. H. |-_>l. 1'. f'.--A.
Wilson.
Replevin for liorses. I'Ica, justifying the
taking under a warrant for school taxes, and
alleging that they were deliveretl liy the collec-
tor to defendant, an innkeeper, to take care of
until the sale. Replication, setting' out facts to
shew the rate illegal, and averring that tlie
plaintiff after seizure of the goods, at the request
of the collector and trustees, gave his note for a
sum named, (not saying that it was the amount
due by him,) payable to bearer, which was
accepted in satisfaction of the taxes : that tlie
collector released the property seized, and said
note is still outstanding, and the plaintiff liable
upon it, and that the seizure in the plea men-
tioned was made afterwards : — Held, on demur-
rer, replication bad, for, I. The collector acting
umler a warrant legal on the face of it, would
not be liable in trespass or trover, imd therefore
not in this action, nor the defendant for taking
the horses from him to keep ; and, '2. Kven if
the note had been alleged to be for a sufficient
amount to pay the rate, yet the iniproi)er
acceptance of it by the tnistees would not pre-
vent them from afterwards distraining. Spry
V. MrKemie, 18 Q. B. 161. See the comments
on this case in Coleman v. Ken; 27 Q. B. 5,
and in Iladinff v. Mni/nlle, 21 C. P. 490.
Where lands, which had lujcn assessed as
non-resident, l^ecamc occupied and iisscsscd as
such :- -Held, not competent for the treasurer,
under soution 12()of 32 Vict. c. 36, O., to issue
his warrant to levy arrears accrued when tlie I
I lands were non-resident, the sees. Ill to ||;l
1 of the Act providing for that event. .S'/ii/i/fc-
\Slnbktl, 21 C. 1'. .518.
! Defendant held two rolls, each hea<leil "(.'(,|. I
lector's Roll for the Tov/n of Belleville," oj, I
! being also hcailed "Town Purposes," the other
j "Schotd Purposes." In the first, the coluiiijj
headed "Town or \'illage Rate" contained I
I nothing, but in that headed "Total
I Amount," !j^40 was inserted. In the other that I
column had nothing, but $16 was in the culunul
headed "fieneral .School Itate :" — Held, in reple. I
vin for goods seized, insufficient, for there wjil
nothing to shew for wliat purpose the sum not!
si>ecifietl t() be for school rate was charged. %w\
r. McKenzic, 18 Q. B. 16.5, distinguished. (\\i
mini V. AV/v, 27 Q. B. .5.
The omission to set down the name in full of tlnl
person assessed was treated as immaterial. l\\
Where a cori)oratioii leased property to a t..
ant, taking a covenivnt to pay taxes, VuuKouaI
net, v., and Spragge, V. C., held, in the CVjuitj
of Appeal, dissenting from the judgment of tbtl
court, that though they might sue on the cove- 1
naiit to pay, they could not distrain. SrivijifA
('(ir/M)ru/i<m of Turnnlo, 28 Q. B. 457.
Tn case of a sale of chattels for taxe;^, it isuiitl
necessary for the purchaser, to maintain histitli i,
to lie able to shew a strict and literal comjiliaati'"
by the bailiff' with the directions of the .\sse'f|
nieut Act, 2!)-.S0 Vict. c. Ti.S, s. 99. r/;/w,
Lm-i-ll, 19 Chy. 197.
A sale for city taxes was objected to mi tliil
allegation that the public plac.o where tiit HiiT
vertiseinent of the sale was posted were iii||
within the ward where the sal', took placn.
appeared, however, that the chattels were seizdl
and sold on the premise^ of the owners withtk(|
knowledge of the parties in charge, and withm
fi'.aud, and without objection by aay one:— H{
thiit the sale was valid. Ih.
Chattels in the post ossion of a receiver w
seized and sold by a biiiliff" for municipal tuit|
Neither the bailiff' WiV the purchaser was awi
until after the comile^ion of the siile that tl
property was in the recoi/ir's possession, or m
intended to be .affected by iie »iu?v apjMintii
the receiver ; and iwth ha<l ,'ieen infer .Tied toll
contrary in good faith by tie party i ha:
The court reftised to hold the sale \r'A. Ih.
The establishment in which these chati
were ))eing afterwards sold by order of the
in one lot as a going concern, it w.a« — Held,
the purchaser of such chattels at the tax
was entitled to a corresponding p.art nf the p
chase money realized at the Chancery sale. /i|
See Sdniiiiil v. Citi/ of Toroiiln, I'JC.P.
p. 218.
2. Other Ca-ifi.
A township collector may sue fiu- the im
of an assessment for common scliools unileil
& .5 Vict. c. 18, in a Division ('mirt. .'/c'li
v. Whit, 1 q. B. 15.
Held, on appeal, athrming the deci»ion
C. P. that a non-resident owner of lands iMiioll
suad for the recovery of rates iuiposw' lunaiwti
gcb lands, unless it ',
he owner had person
he oasessur that he
ired to be assesse'
I to aver such requ
nt suflPering jucig
Iiinicijxditi/ of' Berlin
" P. 211.
The taxes tine on Ian
> sued fur as a debt i
arsinarrear, and unl
; a sale of the landi
I the act. Macaulay,
ty of Bfrlin V. Grani/e,
I The decliiration stat(
1)1'128 was duly itssess
lie year ISiV), of which
lefciiiI'Hits, although sai
\t d, refused to jiay
Itot'ti los. TkI., ple.adi
(lexceptas to that sum,
ar did not deliver or t:
^tioii or office of defe
J amount at which th
r real property in th
Insliiiig the value of tlie
Id, aiulthe value of all
JDjierty .'-Held, a good
; '- 'mi V. O'rfii/ ((v*
.It IS ■ defence to an ai
Bilaiit ■< property was v
wage 1 a 'le of I,an,l in t
f the same year ; the <>
, is V appeal to the C(
kiMimlifi/ of Lonilin, y
'"■<K 17 Q. B. 267.
leld, that lie action .
hist acoUectfr of t.axc
' "fastnang-r with.uit
ition of tlurc being
dant in the warrant
^ey couM have been n
iMM, 7L .1. 244. -('. c.
[fter the return of the co
lies must sue under tJu;
B, or proceed agaiiLst
h8^-r. 297.— C. V'. -
p. RcspoxsiniMT ly'
•' ' *'';;
Ind by collector of fow
|1V., e. 2, and before V
M.-Kigbt of .action (»ii.
IB, 189.
I debt on 1)011,1 against
pliip and his sureties /,
■scollt tedin I84(), <>n
IV of December in tlia
' »'>y-lawof thecaiic
I that the collector shoul
yny, which lie liid :
] t" the coiiditi III. ■ ij,
^Wof |3,t If v:,.f .
>togivcalM,i.„, .js,;„
Ftofy. .^'d not so i,„„ei
lection of i!,otexe -'1 Ll
|liecnllector'ssuret. '-..."
•^' "«tc.«i of tlie town
j37
ASSESSMENT AND TAXES.
238
nch lau'ls. unless it be averred ami proved that
he owner liad personally or in writing infonned
he assessor that he owned the propertj-, and
Hesired to be assessed therefor ; and the oniis-
on to aver such request is not cured by defen-
int suffering judgment to go by default.
tmcipal'I'l of Berlin v. O'rnnif, 1 K. & A. 27!) ;
IC.P. 211.
The taxes due on lands of non-residents cannot
, j„g,i for as a debt until they have been Kve
larsinarrear, and until they cannot be reivlized
a sale of the lands in manner provided for
[the act. Macaulay, .1. diss. 7'lir }fiinlrijifil-
I of Berlin y. Grannc, 5 0. P. -211.
The declaration stated tliat a ta.x amounting
,£128 was duly iwsessed against defendants foi-
■ year IS.')*), of which they had due notice, yet
|.fpm1<mts, although said sum had been duly de-
d refused to pay the same. Defendants,
to £6 l')8. iitl., j)leaded payment into court,
lexceptas to that sum, that the iissessoi-s for the
did not deliver or transmit by post to any
ition or office of defendants a notice f)f the
1 amount at which they had assessed dcfend-
j' real property in the nuniicipality, distin-
liBhiiig the value of the land occupied by the
111 aiidthe v.alue of all defendants' other real
iiierty :— Held, a good defence. Miniicl/KiHl!/
■ 'n,i V. drc'it IIVx^'/•» /.'. 11'. Co., I(> q.
pr wei
itaml
aw
hatt
|orw(
ointin
Itotlil
Ik
Ihnttelj
lixsil
fcici*
...".it 18
linotl
nKctl
lefencc to an action for taxes that dc-
ito.t < property was rated higher than the
re \a 'le of land in tlie locality iis assessed
the same year ; the only remedy in s\ich a
j^ jg l,y appeal to the f'oiirtof Kuvision. T/ir
mfiimlilii Of' Loiiiloii V. '/'/('■ (Iriiil W'l'.ih'ni
ir,ro.,'i7'Q. B. -Ml.
(eld, that nc action on the (^asc will lie
Bust a eollect( r of tixvn for distraining the
idsof a Strang 3r without noccs.sity, upon the
atiou of tlure being goods enough of the
iidant in the warrant out of wliich the
hey conlii have l)een made. MrKlhcrmi v.
\m,'i I'. •!• 24 !•"-('. (!.--l{obinson.
rthe return of the collector's roll niunici-
ties must sue under ti<e lO.'ndsec. of < '. S. I J.
6, or proceed against :\v- 'and. Smifh v.
ir,8LJ, •297.-('. J. - V.c; -n/.ie.
RkSPOXSIBIU';" u- O?. '"rORSAMiTIIKIH
;t n';; •> <.
kiul hy collector of towi, ui|. rrtjs after (j
. IV., c. 2, and before tHc repe.'xl of ."> Will.
—Right (if action on. I'l Ia-hii v. Sliiuvr,
189.
I debt flu bond against th'i collector of a
Uip and iiis sureties lor nit paying o\er
lys eolk tetl in 184(), on (U- before the first
pay of December in that year, defendant
lahy law of the c.uncil passed in May,
Uliat the collector should pay his moneys
Brly, which lie did : Held, biul, as no
|er to the couditi ni. /inl';; v. Ih-iir, .") (^).
.tiOof 13&. 14 '■■<•*• . -. , (i7. -•eo-.'.iring the
?flr to give a Imii.h, ,is le'^uiiud oy by-law,
Rctory, ^'A not so in)i)erati /e as to make
pllection of L!'e t*xe, 'llegal where a liond
e collector's surelj !;?.d l>een given to the
iwr iiijtcrni of the town by its corporate
name, and no by-law had lieen passed by the
corporation under that section. Jiiidt v. I'fatI,
(i C. R .S()2.
Held, that the roll not being "certified under
the hand of the clerk," the collector was not
liable to the corporation for negligence in not
distraining on the goods of a party assessed.
Corporation of Vifiiitu v. Miirr, 9 L. .f. .SOI. — C.
C- -Hughes.
To an action against a surety for a collector
of taxes for moneys received and not paid over,
defendant pleaded that no roll properly certifietl
was received by the collector, bnt that he col-
lected the moneys wrongfully and without
authority. It appeared that a roll was delivered
to him signed by the clerk, but not otherwise
certified : Held, sufiicient authority. Defend-
ant also pleaded that the collector had not taken
the oath of office : -Held, that the proof of such
issue lay npou him. The Curpuratinii of' the Town-
shiiiof Wh'itltn V. Hijrr'Moii, 18 Q. R."603. See,
also, Miini'-i/i(ilili/ of Whitlnj v. FUtil, 9 C. P. 449.
The bond was taken to "The municipality of the
township of Whitby," and afterwards the town-
ship was divided by 20 \'ict. c. 11.3, into Whitby
and Kast Whitby : -Held, that tlie bond was
properly sued ujion in the name of the corpora-
tion of Whitby. Till' Vorporat'ioii of the Town-
ship of Whithi'i V. Iltirriwn, 18 Q. B. ()03.
The fivct that a collector of taxes received the
money without any roll having lieen delivered
to him, and without h.aving taken the oath of
office, forms no defence for Ins surety to an action
for not paying over such monej-. S. V. fh. 60<).
An extension of time for making the collec-
tion witb(Uit the surety's consent does not dis-
charge him, th.at being expressly allowed, and
ills lialiility rct-iincd, liy 18 Vict. c. 21. //*.
Tlic treasurer of a town by .autlnn-itv of the
corporation applied for a mandamus to the
collector, connnanding him to give an account in
writing for each of the seven years during which
he had held office of tl>o taxes rcm.aining due
on his n»lls, ami the ; i»8on why ho could not
collect the same, by inserting in each case the
words "non-resident." or "no property to dis-
train," and to make oath that the sums were
unpaid. Tlic court refused the writ, holding
that as there were other remedies provided,
under ss. 107, 170, 173, aiul 177 of the Assess-
ment .Act, ('. S. V. ('. c. .").■», it must at least be
shewn that they could not be used or would l)e
of no avail. In re Quin, 23 Q. R. 308.
One .\I. was a collector of a township for 1864.
and I8(>."). In .l.annary, I8()5, he was authorized
to continue the collection of the taxes for 1864,
until the 1st of May then next ; and in .January,
I8(>li, to continue the collectiim of taxes for the
townshi].) " so long as he slumld \vd recognized
by the nmnicipality of said township." He did
not return the rolls until April, I8(»7, when a
large sum of the taxes for each year apjHjared not
to bu accoinited for. < )n the 2nd of that month
the treasurer, under sec. 182 of the Assessment
Act of 1 8(>(>, under a resolution of the council,
demanded payment, and on the (ith he issued his
warrant to levy of the goods and lands of the col-
lector, under wliich the sheriff in May sold the
land in question :— Held, under V. 8. U. C. c.
TtTy, as amended by 27 Vict. c. 19, 8. 12, and
under the Assessment Act of 186H, that the
r "1
!l!
A- i !
•If i
ijO.
ASSESSMENT AND TAXES.
li
; *■
talc was uuautliirizod, and tliat the sheriff's
deed convey etl no title. Per Hiclia-'<lH, V. .). -
The extraordinary remedy given l)y tlia issue
of a warrant applies only wlien tliu collector
neglects to pay over by some time fixed within
the period allowed by law ; but if the munici-
pality authorize him to continue the collection
beyond that period, his liability, and that of his
sureties, must be enforced by the ordinary
means. Per Wilson, J. — The demand on the
2nd of April made that the day on which the
payment ought to have been made, liut under
the statute the warrant could not be issued
until the expiration of twenty daya froTn that
time, and was therefore premature. <'hnrh'<-
loorth V. Ward, 31 Q. B. 94.
On the Ist January, 18t)7, the AotsalK)ve men-
tioned were repealed, "saving any rights, pro-
ceedings, or things legally ha<l, acquired, or (lone
under them. " Quwre, whether the right to issue
the warrant still existed. Ih.
IX. Sale or L.\.vi) foii Taxk.s.
I. Proof of Taxit in Arrvir.
In ejectment by the put serof land s<dd for
taxes, under (! Cteo. W. l '. iif" nuist prove
that the ^rit to sell was gi-, the trea-
surer's return shewing arrear i i .^\\i years
on the particular tract of land, >. ' liat there
was no sufficient distres.s on the lanu , mv\ Seni-
ble, also, that the land had "been dcscril>cd or
granted." Don d. lii-U \. l\iiiiinittri' I'f al., ,'{ (>.
S. 243; DoPiX. Kill y. (trr, T) (>. S. 4:«; Krrimi-
ton Dmnhic, 8 C. P. (>.">.
But not that the writ was in tliu siiuritl's
hands for the period required by law. Dur d.
McGUlU V. MrDoiiafi/, I Q. B. 432.
The surveyor genei-al made a return to tlie
treasurer of the l^ndoii District, lieaded thus :
"Township r)f Oorcheater, southarn division,
broken front concessions A and li, soutli part to
John Reilly, Jr., 100 acres, north part to Dudloy
McPhoe, 200. " The treasurer did not open his
account in accordance with this return, but
opened a separate account against " X. }. of lot 22
in broken front B. 100 acres," and icturncd it as
in arrear, upon which return it wa.s sold. It was
proved that the parties who hail paid tiixus on
the lot, having title to the whole 200 acres, liad
paid taxes on the whole, and not separately on
any part of it : — Held, that the sale of the north
half of lot 22, made in 1830, was void, because,
notwithstanding the return by the treasurer,
there was no arrear in fact su1)jecting tlie land to
sale. Doe d, Upfwr v. Kdimirilx, ,"> (^. B. r»!t4.
When the surveyor-genur.vl I'eturns a lot of
land as described for grant, proof that the land
was not in fact so descrilwd nnist be of a very
positive and attirmative kind ; tlie mere evidence
of a clerk in the surveyor-general's office that
he rinds no trace of it, will not do. I'crni v.
PoiBcll, 8 Q. B. 251.
Quwre, the effect of a lot having been erro-
neously returned as described for grant, and in
consequence of this error having been ivssesscd
and sold. Ih.
Under 59 Geo. III., c. 7, lands returned in the
surveyor general's schedule in June, 1820, were
liable to have taxes charged against them on the
ist of July following, which taxes for the first
year were to be then assessed for 1820, so that, I
if not paid, there would be eight yeai-s' taxes iil
arrear on the lat of January, 1828. ^iiiuh iaiij,|
having been solil under a warrant which descriij^l
the taxes on them as being in arrear framtlkl
Ist of July, 1820, to the 1st of July, 1828, tSl
sale was upheld ; for eight years' taxes wl
really due, the mist die in the time of commeii»|
ment was unimportant, andcoulil not vitiate tlnl
warrant. Dw d. Stain v. Smith. 9 Q. B, (j5j |
Defendant claimed under a sale _^
made in 18.39, but the only proof that any tujl
were imposed or in arrear was an extract froi|
the treasurer's Ijook, shewing that tlic taxes (i|
the lot liad been p.aid up to 1828 : — Held, in)n(f
Kcient. Miiuro v. (Ireij, 12 Q. B. G47.
Held, tliat the jury, on the evidence setoutL
this case, were w.arranted in finding tliat thtil
were no taxes in arrear f(u- five years. Ilurljm\
V. Homhcij, ~, V. P. 4()4.
Kjectment for village lot 4, sonth sidcof Cail
arine street, village of Ingei-soll, part of Ko, |
in In-oken front concession of N. Oxfonl
fondant claimed through asheritt"8salefortani]
It ajjpearod that the village comprised jtartjJ
two to vnships, called X. and W. Oxfoiil:]
\V. Oxford it contained a jiark lot 4, wbkln
sub-divided into village lots after the yciir l^jl
The trciiaurer's warrant tlated in .Fi'me,
contained two village lots 4 south of C'athi
street, one Itoing .stated as in arrear for 1
only, the other for 1854 5 and 18.58. Tbeshei^
sold both to different purchasers, anil convert
the one in dispute to tli' mrchaser a.s lieimrti
one charged witli throe years' taxes. I'ndtrH
facts .set out in the case, it was held tbati
warrant and evidence did not suthcieutly JeJ
this hit as the out! on which the three ye«
taxes were in arrear, or prove such arreara,«
tliat the sale was bad. 7 (cv/.v"/)./ v. KWoit^t
12 ( ". P. 217.
In ejectment upon a sale for taxes, iiiiuleniii
Iti Vict. c. 182:-JcM, That the trcisnj
jn'oducing Ilia official books, and shoningl
the lands wert; charged with the taxes wtent^
warrant issued, wa-s sufficient proof of their 1(
ing in arrear. (Jtiicre, whether the warraiitsl
would not sufHce. //<i// v. /fill, 22 y. B.,
The collector's roll was delivered to I
2(ith .August, 1852, and the treasurers wai
to sell was issued on lltli August, 1857:-H(ll
that, under sec. 42 of the Assessment Xil
18.53, no portion of the tax being ilue I
five years on 11 th August, 18.57, the salei
void. .Semblc, per A. Wilson, J., tliattheti
of the preceding year, for the purjiosesofsakl
arrears, are not in arrear till after the ye«|
which they arc inqtosed. li''ll v. ,l/c/,«ii,|
V. P. 41(i.
The taxes were unpaid for 18.53, 4, ."),(!,»
On the 25tli February, 18.58, the trciwurerii
his warrant to sell : — Held, that no iwrti
the taxes w.as due for five years, within ti
S. U. ('. c. 5,5. Fori! v. /'roinl/ont, 9Clir,(
Where land was sold for taxes incluJinjl
year's assessment which had been paid, thef
wa.s set aside, though the number of yei
arrear was greater than was reiiuired to «
a sale, /nrin v. Ifarrini/toii, 12Chy. lift
I'he five years for which lauds aw toi
arrear for taxes, before they are liable to hi
(1
Biler K) \'ict. c. 182, i
t the treasurer's warr
I Mudlem, 14 Cliy. 2
' When tlie tir.st year's
J a hy-I:iw pfissed in
ctov'sroll was notdeli
52; luiil the treasui
ithJuly, 1857: -Held,
no taxes had been
hliiioi- V. Mrl'lieri<uii, 1
I On the evidence sot oi
^tle under a. tax sal
pid sufficiently shewn
jinied by the survey
r patent. Johi'k v. (Joi
tyet reported.
ISee Hamilton v. McL
I ; Jonci V. Bank of i
, 2,%'.
2. Snh ajh-r j
a writ has been issiu
f taxes, but before sale
; the sale is illegal am
\Dmimii, M. T. (j Vict.
il'hers the taxes had bet
|Uie district, and a recei
jnt sale by the sheritf; a
jnce of the ti'oasurer lia>
Ipayment oii the lot, wa
[treasHrcr had returned
^liei-ti v. Broini, 17
ilil, also, that such .sal
e tlie taxes had, in ;icc
|c. 3, Ijeen paid to the tre
Ihich the owner resided.
V prove payment of taxe
lew that the collector w
Isutiicieiit to shew that
Wicdged iis siicli. S'n
1 3i«.
mHiiniiltim v. Bi/jk/on, 2:
See next suli-lu
;). ■Snlf'.-i um/i'r.'i ]';,
le lot was duly advertise
VhJune, 1840, pursuant
Wie taxes had been paitl t
that, as the payment
anil not to the 'treasu
las not ai)plicable, ,^,^,1
|L Mimnml v. .]fatfJ,r.,o„
eland having been duly
nice with the 3 \'ict c
Ivalul notwithstaiiilini, li
^«i ora portion of tJit
gtaied to comply with
MwluiiaM v. Bowp, t)
Iv itf ■ ^' "'"■'^"' •■"^1^
r- '"•;!'. were confinned
f « "f that act the she
fMhei,laintiir:_Held
r.»"f set out in the '
f^iglityears taxes in arre
I 'hm, 183!), for the w
Iwaprev,^,,,^^,^^^^^^^
■♦"f^, 1828, though i J
l()
u
ASSESSMENT AND TAXES.
ler lli Vict. c. 182, must be beforuthe delivery
?li,„ treasurer's warrant ti> the slieritt'. A'r-////
':Li/n., 14Chy. 29.
When the first year's taxes luwl boeu iftipused
l,y.l:vw passed in July, 1852, and tiie e(d-
etov'sroH was not delivered until after August,
«•)• and the treasurer's warrant was dated
Ikii July 18''*' • —Meld, that the sale was invalid,
no taxes had been in arrear for live years.
bHHOCV. McPhfrMii, ISGhy. (i07.
[on the evidence sot out in this case, to sustain
iitle under a tax sale made in 1830, it was
Sd sufliciently shewn that the land had been
nmed hv the surveyor-general as deseribed
r patent. ^/"'"'•^ v. Vvivdn,, Q. B., H. T. 1874,
\ yet reported.
bee Huiniltoii v. McDonulil, 22 Q. B. 13(), p.
In. Jonc-i v. UaiiL of Upinr CdiKiila, 13 C'hy.
. 2.56.
•J. Silk aj'ti'i' Tii.wn I'u'ul.
Ilf :i writ has been issued for the sale ot land
^taxes but before sale under it, the taxes are
IL the sale is illegal and void. I loin- I'f it.r. v.
\dwI)hoii, M. T. (i Viet.
h'hers tlie taxes hail been [laid to the treasurer
the ilistrict, .and a recei]>t obtained, a subso-
mt sale by the sheritt', as for taxes, in eo)ise-
iceof the treasurer having omitted to credit
Ipaymeut on the lot, was held void, altliough
Itreasun'r had returned the lands as in ar-
Jf,/f,.s V. liroint, 17 V. V. 307.
leKl, also, that such sale was ecjualiy void,
e the taxes had, in accordance with !• (ieo.
|c, 3, lieen paid to the treasurer of the distnct
Ihicii the owner resided. /Ii.
J) prove payment of taxes it i.s not necessary
lew that tiie collector was duly appointed ;
Isutiicient to show that he acteil an<l was
lowleilged iis such. Snii/li v. Rfd/oril, 12
I. 31G.
Iftimfttwi V. EiiiiM'jii, 22 t!. P. 53l\ p. 2.),'.
See next sul)-liead, 3.
;), .V'i/'''i uiifli'r :i Vicl. f. 41J,
le lot was duly advertised by the shorirt' on
tthJune, 1840, pursuant to 3 Vict. c. 4(i,
m taxes had been paid to him before sale :
, that, ft.s the payment was made to the
J ami not to the 'treasurer, the 3 Vict. e.
fas not ai)plicable, and the sale was void
|l .VAwcow/ V. MatthcMm, 9 Q. B. 321,
e land having been duly advertised in ac-
liicewith the 3 Vict. c. 46, the sale was
valid notwithstanding a receipt produced
aes for a portion of the time, the owner
2 failed to comply with the provisions of
Miwilmiald V. Ilowi', 9 C. P. 70.
13 Vict. e. 40, certani sales for taxes made
k, 1839, were contimied, and under the
ponii of that ivet the sheriff in 1842 con-
I to the plaintiff : —Held, that under the
istances set out in the case there were
t eight years taxes in arrear at the time of
June, 1839, for the warrant issued in
|or a previous sale was for taxes only up to
nf liily, 1828, though it might properly
lli
242
llamil-
have been for another year in .addition.
tou V. McDomtht, 22 (^». B. 13«.
Held, that the 3 Viet. c. 40, does not limit
the period within which a sheriff's deed for a
sale f<ir taxes may be given to two years from the
date of sale. Hamilton 1: McDonald, 22 Q. B.
130, followed on other points. Wef(jan v. Mc-
Diarmul, 12 C. P. 499.
(^uiere as to the effect of 3. Vict. c. 4(i, relating
to tax sales in the Ottawa District, and of the
payment of taxes made by defendant to the
wrong otliccr, as stated in this case. Cashinif v.
MrDoiwhl, 2«ti.B. 005.
4. Ajiporl'wnmtiit of Patjnvent,
A patent having issued for lot 8 and threc-
(piarters of lot 7, including the east quarter,
although the east ipiarter was not returned by
the surveyor-general iis described for grant, an<l
the taxes on the whole of the grant having been
paid, the treasurer credited such payment to the
west three-(juarters, and returned the east
quarter a,s in arrear for taxes :— Held, that the
east (juarter could not be sold, the pajrments
having been made <in the part which included
it. P,,l; v. Mmuo, 4 ( ". P. 303.
Defendant (t. was collector of rates in the
t(jwn of B. for 1850 1858. One M. was charged
on the collector's roll for 1857 with £27 taxes for
1855 remaining unpaid, together with £24 158.
taxes for 1857. The roll for 1855 was not shewn
to have been returned. On the 7th December,
1857, the council, by resolution, authorized G.
to continue the collection of taxes on the roll for
1857, after the usual time : -Held, that (J. had
the richt to appropriate the moneys collected by
the sale of M. 's goods in January, 1858, to the
taxes charged against him for 1855. SicBrkle
V. aanlhdni, 8 C. P. 290.
5. Di.stri'is oil Prniusi:f.
[Bji II (t'eo. I v. c 7, the warrant directed the,
■iherilt' fo ni-ll the hiiidx, provUled there w(ui no d'.a-
tress thereon, from irhkh the tcur.ex mii/M be made.
ThU act irati refiinlnl hi/ the J.i <l' I4 Vici. c. 67,
v.'c. .'fS, which direct.1 the treasurer to innue o,
Wfirrniit to xelt, xai/iiiif notliimj as to distress ; and
■niice that act the fart cf their harinij been itintrem
upon the land run make no difference. See Mc-
Doni'/I r. Mcn,mald, ,.'.} <J. Ii. ,/ ; :>i) A 30 Vicl.
c. .;.,', .■«. /,:;/, and the prexiuf A.ise^itinent Act, 3J
ficl. c. ,10. Ii. /.Ill, O.]
A sheriff's vendee bringing ejectment for land
sold under (leo. IV. c. 7 must prove that
there was no sufficient distress on the premises
to satisfy the arrears. Doe Bell v. Reanmore,
3 O. S. 243 ; Do, d. Mcailli.t v. McDonald, 1 Q.
B. 432.
Proof that there were some few pieces of wootl
and timlMjr that had been cut down by trespas-
aers and left by them on the lot to be prepared
for the market : — Held, not siitticient evidence
of distress. Doe d. I'oarll v. Borinon, 2 Q. B.
201.
AVhere the jury fouml that there was a suHi-
cient distress to satisfy the taxes, the court
rcfuscil a new trial, although it might be doubt-
ful Avhcthcr much too high a ViUuc had uot been
M
: !■■■ IS
m
■IT
i
243
ASSESSMENT AND TAXES.
■M
'1
r.i
put upon the distreHS. Due d. hurrll \. ('rtiiif,
•2 Q. B. 208.
Wliere taxen have accrued uixm the wlidle of
a lot while it is undivided, and a distress could
be made upon part, no ])nrtii>ii could be sold for
such taxes. Staft'urd v. WiHiniiin, 4 (}. B. 488.
Undyr !(» Vict. c. 18"i, the shuritt' lajght sell,
unless he had good reason to believe that there
was sufficient distress. A declai-ation, tliere-
fore, which charged hini with neglect of tluty in
sellinu when there were goods on the luntl to
distrani, but did not aver that he liad notice of
the goods being there, was held insufficient.
J-hlei/ V. Mou<f!e, 1() Q. B. 234.
In ejectment upon a sheriff's deed for taxes,
the plaintiff' showed that the lot was all wild,
with no one living on it, and that an insi)ection
had lieen made but no distre.ss found. Defend-
ant proved that certain piirsous were then in the
habit of niaking sugar upor. the rear of the lot,
and used to leave there two kettles and their
sap-tronghs, which might have been worth tiie
sum due : — Held, that such evidence could not
l)e allowed to invalidate tlie sale. Friimr v.
Matlke, 19 y. B. 150.
Where there was proved to have ))cen ample
distress on the premises between the receipt of
the warrant and the day of sale : - Held, under
(} Geo. IV. c. 7, thaf. ;' • sale was invalid.
Dobbk V. TitUii, IOC. V. ..,'.
Per Mcljean, (J. .J., the evidence of distress
(set out in the cas') having been left to the jury,
their verdict for tlie pin- 'tiff's \w ' betaken as
shewing that there was ix j ac uiy iinie l)ef()re
the sale. Per Burns and Hiigarty, .1.1., the
existence of distress between the 17th of April,
1839, when thr; land was first offered, and the
sale on the lOtli of .June, would form no ol>jec-
tion, as the sheriff was not bound to search
then. Qu.'ure, whether in any case a search
could be required between the inception and
completion of the sale. Ilamilton fl. <i/. v.
McDonald, 22 Q. B. 13«.
The defentlant in ejectment claimed under a
sale for taxes made on the 4th November, 1859 :
— Held, under C. >S. U. C. c. 55, and 16 Vict. c.
182, that it was not the duty of any officer, after
the return by the collector to the township trea-
surer, to search for distress upon the premises.
Allan V. FUhcv, 13 V. P. «3.
Held, also, that the neglect of the collector to
search for goods which with diligence he might
have found, and which would have satisfied the
taxes, did not invalidate the sale. //;.
Where land is assessed and taxes imposed, an
omission by the collector to demand and levy
the amount from property on the premises,
uiunot, since .32 Vict. c. 3(i, O., avoid the sale.
Utewart v. Tai/i/art, 22 C. P. 284.
See Street v. Fo<jul, 32 Q. B. 119, p. 259 ; Doe
d. Upptr v. Edwards, 5 Q. B. .594.
6. Non-ReitUlevl Landx.
Held, that under 13 & 14 Vict, c, (57, non-
resident lands could be sold for taxes due prior
to 1st January, 1853. Jtirrin v. Brooke, 1 1 Q.
B. 299.
Under V. S. IT. C c. .55, the chain Iwrlain and
high bailiff in cities had power only to sell the
lands of non-residents for ari-ears of taxes, \i
sale in 18()5 of land belonging and assessed biJ
resident, was therefore held invalid. MrKmnl
bnmheruer, 30 Q. B. 9.5. '
Se.j I, 4 (b), p. 221.
7. Si-nerril Lut.s.
Sunible, that where several lots arc iuclujjil
in one grant, but described by separate luimbeml
a portion of each lot must be sold for tlic tunl
due on it, and not a portitii) of the whole Moell
beginning at the boundar from which the loiil
are numbered, for the taxos due on the wh
J/((«;v( et III. V. Orel/, 12 tj. B. (547.
Hehl, that, under the facts set outiii thinoaKl
the sale was void, for that as a portion of Unl
east half of the h)t had been sold for taxes, i
wliereof had accrued upon the west half, al
was not chargeable on the east half, aiulastlin
were no means of .apportionment, it was vniilii
to all. /{iduid V. ketchiiiii, 5C. P. 50.
Lot 18 and the west part of 19, uontaiii
together 200 acres, were granted to B. in (
pfvtent, and in the same year the ciist ])artjl
19, 15(5 acres, was granted to one S. B.'s laul
l)eing in arrear for eight years, was retuiiWi
the treasurer as 18 and the west part of lt|
200 acres, v.-id the sheriff in 1848 sold ami c_
vcyed to the plaintiff 135 acres of lot l!l, whiil
would include part of the land granted to S J
Held, that the sale could not be upheld evenJ
to that portion of 19 granted to B., for lot 1
•and the west part of 19 shouhl each have b
separately charged, and sold for its own arrea
McDoiiaid. v. Roblllnrd, 23 Q. B. lO.").
'I'he north and south luilf of a lot liaviiig \»
assessed separately, and different amoia
charged against each half, which were aften
added together and charged ivgainst the vU
lot, .and a portion of the whole lot having I
sold for the combined amounts : — Held, t
such siile was illegal. Lau<ihtvi\lioro\ii\\ \
Mel„<i„, 14 C. P. 175.
The patent granted the lot by nortliaiidt
halves. The patentee in 1853, conveyed tbdj
as a whfde, and it continued in one owner d
the sale of 35 acres in 1858. In ISoSandlSl
each half w.as iissessed separately ;— Held,!
objectionable. For the next three years itij
assessed in two parcels of 165 acres andSot
and for the succeeding two years, the north li
100 acres, and the west part south half, 65*
were assessed, with a valuation of .?330 oa^
whole :-"-Held, right. The Edinlmnjh Lifih
ance Co. v. Fenjunon, 32 Q. B. 25.'?.
Ill 1865 the 165 acres was sold for then
due for six years, including 1858, which \riij
covered by the warrant umler which the JiK
were sold in that year : — Held, that the i '
to 1858, could not be supported, forallord
of each half should have been sold for t'
due on it for that year, notwithatiuiding tkei
of the 35 acres ; and that as there weref
five years due of any portion of the residwl
which the warrant issued, the whole sale r
fail. Il>.
The land in question in this case was nnlj
for its own arrears only, but was am
iuiotherlot, and the arrears charged agamstlj
renmirrrs
[?„\f «•"*<>. certain 8.alt
* 1839, were confirmed, ar
Jofthatact the sheriff in
blan.t.ff;_Held, that. ,
H' set out in the case, the
I ha;! clearly not lapsed
•^ the sale. Hamilt„„ y,
>We that it is sufficient
K'", ?'""'"'« annexe
J'Mhednle.s expressly i,
KQt.m,,f the warrant
ge^^hedule ,s not so i„e
F. — V- a. 0/8.
f ',■,**"?'"« the ju.lg
l.tethe_lGVict. c.^'isi
V. ■/^" ''«<l"»rinff the
r»™it for tile sale "'
845
ASSESSMENT AND TAXES.
24G
Seinblc that this would lie fatal. Tliontptnn
"c^kwk, 23 c. r. :m.
The assessor should nasesa village lots llie
riiperty of uoii-residents seijaratoly, plainng
noosite to each the value and amount of assess-
cnt. Where, therefore, the assessor had
uiluiled three village lots in one ivssessnient, two
( which only l)elonged to one person, the sale
j set aside ; but without costs, as the purcha-
-defendants in the suit — had nothing to do
Rth the irregular proceedings for whicli the
was set aside. BInrk v. ffiirriiii/loii, \'2
hy. 175.
I Where tiu'ee distinct lota were assessed in
Ik aiul sold for taxes, the sale was set aside,
J the purchaser having stated at the sale that
I object in buying was to secure the property
t the person entitled, and afterwards claimed
J hoU the land for his own benefit, he was
Beted to p*y the costs of the suit. ( hrlntii' v.
imion, 12 Chy. 534.
i Where two half lots were assessed sei)arately,
ll^e of the whole lot for the total amount was
id invalid, notwithstanding 27 Vict. c. I!) s. 4.
prtHi V. Ifolf, ir) Chy. 3;i.-).
See 1, 4 (a), p. 218.
8. TredKiirfr's Wiirrtni/.
jiiU having been srdd under a warrant
[ch described the taxes on them as in arrear
ithe 1st of July, 1820, to the 1st of .luly,
..id of the 1st January, 1828, tlie sale was
jeld; for eight years' taxes being really due,
Imistake in the time was unimpoi-tant. Doe
, sale in 18.3'J, under a warrant issued in
;— Held vali(l, the sale having been delayed
he 1 Vict. c. 20, passed in consequence of tlic
lUion. Toihl V. llVrc//, 1,> Q. K ()14.
the treasurer's warrant, dated in .func,
|, there appeared to be two village lots 4,
of Catliarine street, in arrear for taxes.
Iking in arrear for the year 18.''>4 only, the
irfor 1854, 5, and 8. The sheritT sold both,
jonly conveyed the one in dispute in this ac-
] to the purchaser : — Hehl, that the warrant
|not sufficiently define the lot to lie sold
longh the sheriff had assumed it to be the
'i question in this action), and that the sale
linvalid. Townxeml v. E/'iof, 12 ('. V. 217.
1 3 Vict. c. 4(5, certain sales for taxes maile in
', 1839, were confirmed, and under the provi-
I of that act the sheriff in 1842 conveyed to
plaintiff;— Held, that, under the circum-
les Bet out in the case, the warrant issued in
I had clearly not lapsed or Iwcome void
1 the sale. Ifaiiii/foii v. McDotinld, 22 <J.
le, that it is sufficient to state the lands
I sold in a schedule annexed to the warrant,
luchedule is expressly incorporated M'ith
BtiQusre, if the warrant mention no lands
Ihe schedule is not so incorporated. • It nil
|l/,22Q. B. 578.
Id, affirming the judgment of the court
I, that the IG Vict. c. 182, ss. .'w and flO,
II'. C. c. Tw, requiring the county treasurer
T warrant for the sale of lands in arrear
to distiuifuish those that have been patented,
from those under lease or license of occupation,
is compulsory ; anil that sales effected uiuler a
warrant omitting such particulars ar" voiil. Hall
V. mn, 2 K. & A. -m -, 22 y. b. 578.
The land was called in the collector's return
the east half 2o, 2nd concession Charlottenburg,
the M-ord "front" l>efore "2nd," Ijeing strucK
through with a pen, while in the warrant that
word was written, and in the sheriff's deed it
was omitted : — Held, immaterial, for that the
j identity of the land sold with that on which the
tax was to be collected was sufficiently provcil.
' MrDoiiill ft ,tl. V. MrDoiniM, 24 Q. B. 74.
I A sale for taxes under a warrant issued with-
I out a seal : - Held, invalid. J/o/v/oh v. Qiifniifl,
2« g. B. :m.
I The warrant contained two dift'erent entries
I of the same lot for taxes due for two successive
1 years. The sheriff sold the lot for the first
year's taxes, tlien adjourned the sale in conse-
(juence of other lots ivniaining unsold, and at a
subseii'ient date sold the same lot for the second
year's taxes, to another i)arty : — Hehl, that the
warrant was wrong in entering the same lot
! twice, a.s if two separate properties, and that
I the sale was void ; tlic firat, because the sheriff
! did not .sell for all the taxes appearing to be
due ; the second, because, having previously, at
the .same sale and under the same warrant, sold
the land to one, he could not sell it again to
another. Srhiifj'ir el n.i; v. Luiidji, 20 C!. P. 487.
Held, tliat the 13 & 14 Vict. c. (>7, ss. 46 and
47, did not make the list of taxes directed to be
prepare<l by the treasurer binding ; and that if
the tax was not legally imposed, but merely
debited against the lot l)y the treasurer, it was
not made valid by being entered in audi list.
M,-A<lw ,1 ill. V. ('whii, 30 Q. B. 349.
Hehl, that a .sale of land in 186.5, the only de-
scription of which in the Canada (iazette and in
tlie trcas\irer's warrant was, " part of south part
1 1 1, 1st concession Tay, 40 acres, ?12.9.'i," couhl
not be supported, (tviint v. (lUmoai; 21 C. P. 18.
A warrant describing the lands as "all patent-
ed ": -Held, sufficient, liroob-x. ('amphell, 12
Chy. ■")2«.
So als<) "all deetled." Cnok v. Joiic-^, 17
Chy. 488.
!Sec 'r/iitii)ii<(in v. Colrorf,; 23 C. P. SO.'), p.
2."»!».
'■). AilrvrtUKment.
A defendant claiming under a sale for taxes
under «> (ieo. IV. c. 7, need not shew that all the
necessary formalities were attended to, such as
advertising, &c. l)o<' d. Bell v. On; 5 (). S.
4.33.
Held, under 13 and 14 Vict. c. 67, that a sale
would not l)e invalid for want of due advertise-
ment thei-eof in a newspaper published in the
ctninty where the lands are situated, as required
by sec. .'iO. .larrii* v. Brooke, 11 Q. B. 299.
But see IMI v. Hill, 22 Q. B. 578 ; 2 E. & A. 569.
The advei-tisement of sale not having been
inserted in a local newspaper in accordance with
16 Vict. c. 183 :— Held, that the sale was not
confirmed by siud statute. Semble, that the
statute being passed to give effect to a forfeiture,
I' , i''!
1/
t (feS
M
w.
-T— T
54T
ASSESSMENT AND TAXES.
m
a strict compliance with its tcnnn was necessary
to bar the rights of owners of land sold. WHIIiiiiim
V. Tai/lvr, IH C. V. 21 ».
The omission of the treasurer to iulvcrtiae the
list returned by him to the Court of Q. S., within
one month thereafter, and to advertise such lot
in the Olticial (Jazette, and imperfections in the
advertising : —Held, to be irregularities cured
by 6 Geo. IV. c. 7, a. 2'i, and by analogy to tiic
holding of the Courts in the cases of sales under
execution. Coffer v. Snthfi-laml, S/i'ini.i H al.
V. Jacipu'H ff ul., 18 C. P. Xu.
The sheriff's advertisements of the sale and
its postponement in the (Jazettc in tiiese casus
were held sutticient. Ih.
Semble, that the advertisement of a sale made
in 1855 was bad, for not specifying whether the
lands were patented or liehl under a lease or
license of occupaticm. .UrAifii' v. ('(irhi/, 30
Q. B. 349.
Held, in ejectment, tlnit a sale of laud for
taxes to defendant in ISUf), the only description
of which, in the Canada Gazette and in the
treasurer's warrant, was " Pt. of S. pt. Ill, Ist
con. Tay, 40 acres, .iS 12. !).")," couhl not l)e sup-
ported. (J rant V. (I'iimoKr, 21 C. P. 18.
Where a tax sale was advertised in the ( .'anatla
Gazette for thirteen successive weeks before sale,
but such thirteen weeks did not amount to
three calendar months from the date of the Hrst
publication, it was held that the irregularity did
not invalidate the sale. Connor v. JJouijUui, 15
Chy. 45(j, in appeal. Followed in MrLaiirli/ln
V. Pifim; 29 Q. B. 52().
SeeStrcci v. /■''>,'/»/, :V2 q. I?. IIO, \>. 2.")!).
10.
' roiiiliicf III sii/f.
liiijiropi
Defendants claimed title through one \V. Mu( '.
who claimed under a sale for taxes. ( )n the trial
it was proved that W. McC. olainicd the lot in
question at the sale for taxes ; and alleging that
his title was imperfect, he asked the audience not
to bid against him, which request they complied
with, and he became the piu'chaser thereof for
£4 or £5. The jury found that McC. 's state-
ment was false, and in consecpience he purchased
without competition : — Held, that the sheriff
having duly conveyed the land to McC., the
legal estate thereby passed, and if it was sought
to impeach the sheriff's deed for fraud, the case
must be taken into c((uity, where conq)lete
justice could be done to all parties concerned.
itaynea ct x.r. v. Croindr cf iil. 14 (A P. 111.
The lot was first put up on the lOtli nf April,
1839, when one M. offered to take 20 acres for
the sum to be levied, but afterwards he refused
to carry out the purchase ; and the sheriff in
July following i)ut up the whole l(»t, 200 acres.'
which M. then purchased for the same sum,
stating at the sale that he ha<l already ac<|uireil
a title to the land, which he wished to have
confirmed, and reipiestuiy the bystanders not to
bid against him. 'J'his title came by deed from
the treasurer, who had purchased from a person
assuming to be heir of the patentee, but who was
not in fact his heir ; jvnd M. had given back a mort-
gage to the treasurer to secure part of the pur-
chase money : -Held, that the second sale of the
whole lot was illegal, being unanthorised by the
statutes, and improperly coiiilucted. Seinl)|.
that the treasurer's connexion w ith the laiulcouM
not avoid the sale, he not having been in fj,.
the purchaser. Tmlil v. Werrt/ rf <(/., Ug
B. (i\4. See also /// re Cdnitroii, 14 Cliy. (j|o '
The sheriff at a tax sale, on the 26th of beoemi
Ijcr, 1855, notified the purchasers that if thfll
did not pay in two or three weeks he W(iiil(l,jjl
the land again. Defendant having purehaKjl
poitions of certain lots did not pay, and the loti|
were put up again as whole lots, not by theacul
Defendant then asked those present luit to tit
as he had a title to the lots bid oft' by liim aj (A
first sale, which he wished to perfect. .Accotjl
ingly no one bid against him, and lie obtaJMl
the lots. \Vhat his title was did not appeyl
Semble, that the sale under such circumstaiicjl
could not be supported ; but no opinion ij
given on this point, as the plaintiff nugbt, uniij
Kaynes r. Crowder, 14 C. P. Ill, be comi^UeJ
to go into chancery for relief on sucli a urouull
MrA>l!>' v. Corh;/, .SO Q. B. .349. '
It wivs objecteil also that the land wjis snldfJ
taxes which had accrued for more than twemJ
years, and that the sale was adjourned illcirali,'!
thougli a large numl)er of bidders were iireseijl
Semble, that these objections could not lit juJ
ported. //(.
Where a persctn, in order to purchase _
at thesheritT''s sale, consented to renrcaentatia
which he knew to be nntrue, and which pi]
vented competition, and so was enabled to m
chiwe at less than the value, the sale was (letlinj
void. /•%// v. jUnrH; 8 Chy. 323.
By an arr.angement between sevtijlofL
parties bidding at the s.ale, it was .-tgreedtla
each should be allowed to bid oft' a whole lotSi
the taxes ilue upon it ; ami others, not parti
to this agreement, were prevented from hiddii
by reducing the (juantity to such a triHe as tol]
quite useless to the purchaser. Tlie landij
(jucstion, Haiti to be worth £500, was thus li
off for £2 12s. The court set aside tlie sale,^
without costs, it being shewn that tlie purchi
was not a party to the c(mibinatioii ooniijla
of. Ilciirii V. /ill menu, 8 Chy. 345.
Where at the sale a lot of land was solditj
trifling amount, as compared witli itsvahie,l|
reason of a combination among some of thef
sons attending the s.ale to prevent comiKtitH
and although it was not shewn tliat the [
chasei- was any party to such coinl)iimtion, «
he so acted as to prevent competition, the c
in setting aside such sale ordered the purclu
to pay the costs of the suit ; and the shd
having been joined as a defendant, was, i '
the circumstances, refused his costs. Dml
CUirk; 8 Chy. 3.58.
A., one of the sheriff's otHccrs, comlud
sale, at which he knocked down without I
coiniKitition to another officer of the sheriJil
wortli about £350, for less than £7 10s., m
lot was subsetjuently, with the assent of ll
sheiitt", entered in the sales book in tiie namj
A. to enable the person to whom it had b
knocked down to cheat his creditor. Upo
bill tiled to set aside the sheriff's deed, it \
shewn that by arrangement amongBt the [
attending the sale it was understood a lot il
be knocked down to each in turn, in pure
of which the sale in question was effected.
art act aside the sale
jsim to whom the
^luiiiijbuil v. Moiitoijt
[The shorilT's duty is
J lauds offered as hi
ladvaiitageof theowi
beriff so neglected hii
of land were kno
punts of taxes, in pui
that effect amongst th<
da were purchased \r
J with his knowledge,'
i bill Hied to set aside
Dilf, as against tin; s
It is not sufticien
i participate in such ar
Befit. II).
^tnty-fotir acres, wor
1 in 18.59 for £2 Is. !
I uf the bailiffs in tin
Although there '
[combination amongst t
^petition, still their cc
id to that o])iiiioii. The
(benl ('. Montague, 9 (
ness, 8 Chy. 345, set
^ ment of tlie amount w!
mired to redeem the li
interest since that t
jht be npiJied in jiart j)f
I upon a mortgage creat(
ichascr at the sale for
)«//, lOCby- 214.
\m at tlio .sale practi
pthe audience which eh
petition, and the lands
\ in the alwence of any
ion, granted relief to
the sale. Loifn- v. Ym
■eseveral cases where sali
Intimidation, or other u
ing fair competition, aj
fed in. Srholjiehl v. D;,\
here the owner of lam
! thereon for ten yeai-s,
'ntheyear, and suffered
Ito elajwe before taking ai
"iale:-Helil, that he wa
sfrom obtaining relief,
I been otherwise entitled'
[appealing on the cvi.i
Boned in the pleadings, t
jaies was a mortgagee o
L in dismissing a bill to
\ for undue practices at
limiiecessary to reserve 1:
■icliing the sale on the gi
"'ilied as mortgagee to i)u
f<ee the next sub-hei
II. I) III II of Sh
fceriff can and should i
"tent, the value of land
« be heard to say that
litis worth .£2 "128., ,„
I*'. 8 Chy. 343.
iihetiff not having ma*le
Peland, was unable to
IV r
as(
SG
he
hi
con
ASSESSMENT AND TAXES.
250
t set aside tho sale with costs as against the |
' tn wliom the ofnivoyauue was inaile.
IThe shoriff'a duty is to sell sueli iioitions of
aiuU oft'ered as he may consider i.iost for
! ailvaiitage of the owners. Where, therefore,
Ji riff 90 neglected his duty that very valuable
1 of land were knocked down for triHing
limits of taxes, in jjursuance of an agreement
haX effect amongst the bidders, some of which
a« were purchased liy bailiffs in his employ,
i with his knowledge, the court in dismissing
I bill tiled to set aside one of tho ales to the
mff as against the sheriff, refused him his
i, ' It is not sufticient that the sheriff does
iuarticipate in such arrangcnients for his own
iefit. II'-
ueiity-foiir acres, worth £7 lOs. an acre, were
liii 18.W for £-2 Is. J»d., and inirchased by
i of the baihffs in the employ of a fonncr
iiiff Although there was no direct evidence
liombination amonjjst tlie audience to prevent
■uetition, still their comluct was such as to
a to that 'opinion. The court, following Mas-
»be«l ''• Moutagiie, CMiy. 9-2, and Henry r.
" g g Chy. 345, sot tlie sale aside upon
nnent of tlie amount which wouhl have been
mired to redeem the land within the year,
interest since that time ; or the amount
ibt be applied in part payment of the amount
I upon a mortgage created on the land by the
Bhaaer at the sale for taxes. Trmiitrlmi v.
Iti;, lOC'hy. -214.
Jiere at the sale jiractices were indulged in
Kthe audience which checked fair and i'rcc
)etition, and the lantls wore siicritlced, the
L in the absence of any direct proof of com-
iou, granted relief to the owiur by setting
jethesale. Aof;"' v. Yoiniii, 10 « 'by. 217.
iieseveral cases where sales have Ijcciiset aside
intimidation, or other undue pr.acticea pre-
- fair competition, approvcfl of and con-
(ed1n. ,SWio//)V/// V. Dh-hni^ou, lOC'hy. 'lid.
Tiere the owner of land sold had paid no
s thereon for ten years, and did not redeem
Jin the year, and suffered four years after the
|to eh»i)se before taking any steps to impeach
|ale;-Helil, that ho was precluded by his
Bfrom ohtaiuivig relief, 8upi>oaiug liini to
ibeen otherwise entitled to it. //*.
I appealing on tlie evidence, though not
lioned in the pleadings, that tho purchaser
Wea was a mortgagee of the property : —
\ in dismissing a bill to set aside the pur-
^ for undue practices at the sale, that it
Immecessary to reserve liberty to tile a bill
iching the sale on the grounil that he was
ilitied as mortgagee to purchase for his own
it. Ik
See the next sub-head, 1 1.
11. Diitii of f^lwriff.
herifl' can and should ascertain, to a eer-
ient, the value of land sohl for taxes. He
tbe heard to say that he cannot tell wlie-
lit is worth £•_' I'is., or i;.")00. Jlcnr!/ v,
1*1, 8 Chy. 345.
kiheriff not having made himself acquainted
Ihe land, was unable to correct an erroneous
iinproasion among the audience as to the value
of a lot, in conseiiuence of which property worth
£400 was sold as if doubtfully worth £'20 : Held,
that such omission of duty by the sheriff' was
not a suthcieiit ground to disturb the sale to an
innocent purchaser. Loii'n' v, Slaiiiin; 10 Chy.
'2'2'2.
Semble, it is the duty of the sheriff, when he
sees the intention of the legislature thwartetl by
improper practices indulged in by the audience,
to declare to those guilty of them that he will
not continue the sale, but will postpone it until a
fair sale can be effected. Ifeiin/ v. Biiriiee^t,
8 Chy. 345 ; />«<//> v. Vitiiiiii, 10 f^hy. 217.
; Held, that it would not Imj inferred that a sale
I which took place in November, was necessarily
affected by practices of the audience to prevent
I competition, which had been carried on at the
I sale in October precediinj, and from which this
I sale ill November was adjourned. /.'«/(> v. Stny-
)it-r, 10 Chy. 222.
(Jiuii'ro, whether a sheriff ought to peiniit a
whole lot or piece of land to be sold in the first
' instance, where the value is greatly dispropor-
tioiied to the taxes due, without adjoiTrnmg the
sale, or taking some ste])s to protect the interests
of tlie owner. Srlwllivld v. Dirkriinoii, 10 Chy.
22(>.
Quicrc, also, whether a sheriff is justified in
proceeding with a sale, when the audience evinces
a determination to purchase nothing but entire
h)ts, or .act in any other w.ay inconsistent with
a proper sale. /h.
Where less than the whole lot is sold, the
sheriff ahouhl <lesignate in some way the portion
sold or offered for sale, so that biddera may know
what portirm they are bidding for. Knnpgs v.
Lfifi/nril, 12 Chy. ,320 ; affirmed in appeal, see .S2
Q. I'i. .SO, note. "
See StrcH v. Fo(jiil, .'}2 Q. 15. 1 19, p. 259 ; ^rnH^
sliiiihrnl v. .Vini/oi/iir, 9 Chy. 92, p. 249.
12. .S7i''c;7/".f Crr/ifiaiti:
Umlor the sherift''s certificate the purchaser
is entitled to possession of the Land sold for
taxes ; and being in part possession he can avail
himself of such certificate as a defence to eject-
ment by the owner, even though he has not re-
ceived a <leed, or a valid deed, from the sheriff' ;
and, iSemblc, he could maintain ejectment on
such certificate .against any one in possession
under the former owner. ( 'nffpr v. Sntlwrlamf,
S/rn>ns ft ii/. v. JaeijiK'^ ft of., 18 C. P. 337.
It is competent for the purchaser to set up a
defence under the sheriff's certificate given at
the time of sale, notwithstanding he has given ft
up on receiving the invalid conveyance. Ih.
See Wdliaim v. Mr.CoU, 23 C. P. 189, p. 231,
Kiiiiuil" V- f^<'<f!l'irif, 12 Chy. .320, p. 251.
13. Slwrif'.i Deal.
(a) Dfurrlpt'ioii nf Ijiitiil.
The lot in ijucstiou, fronting to the north, was
bounded on the south by the river Thames.
The sheriff, while the 6 Geo. IV. c. 7 was in
force, sold 120 acres of the lot for taxes, and in
his deed firet gave a description by metes and
* '
1
ii
llf \
4
t.ij^.i
r 1
I' I
i
.1' ;•■!
:f; M
m
1.' - i '
: 1
'■'. \\\ :\
■ i J
1 ;■ "'^
1
!i;i:!l, ill'
251
ASSESSMENT AND TAXES.
bounds, which was not in accoixluncu with the
statute, and then added a general deMcriptiou of
the land, as being 120 avres niettsured in the
niaiuier presoiibed by the act :--Held, that the
latter description tnust govern :— Held, also,
that according to the statute the rear line of the
tract should correspond with the rear of the
whole lot, following the windings of the river.
Mclntyir v. Lhriit Wi-Hln-ii H. 11. Co., 17 (}. B.
Defendants claimed under two deeds from the
sheriff, made upon different sales, one in 1841,
the other in 1851, under a sale in I84(J. One
described the land as thirty acres of the lf>t, "to
be measured according to the statute in that
case made and provided, " the other as "twenty-
rive acres" of the lot, giving no further descrip-
tion : — Held, that the first deed was sufficient,
the second not. Fnt'^rr v. ^f(lftir^■ <•/ a/., 10,
Q. B. IJH). j
" Kighty-ninu acres of the south part of the
east half of lot numl)er twenty-five, in the :
second concession of the township of Charlotten-
burg": — Hold, insuflicieut, under l.S & 14 Vict. ;
c. 67, as containing no statement of boundaries.
McDonfU V. McDoniihl, 24 Q. B. 74. ^ !
A descrijjtion in the sheriff's deed of land sold \
under ti Geo. IV. c. 7, as "twenty-five acres of
lot 31, in the 12th concession of tlie township of
King": — Held, insuflicieut. Cui/Ici/ v. Ftmter,
26 Q. B. 405.
"75 acres of the front part of tlic went ^, of
lot No. 5, in the 1st concession of the townsliiii
of Winchester": — Held, suHicicnt, under 7 \Vill,
IV. c. 19. FmM,rv. IIV.< 21 ('. V. lUl.
AVhere a sheriff sold 18.H acres out of 200 for
taxes, and gave a certificate merely describing
the land sold as the west part of the lot, com-
prisine 185 acres, and no further intimation was
given ny the sheriff' of the portion of the lot he
was to convey until the deed was executed, the
sale was helrl invalid. Kiirii/j/.t v. Lolnnnl, 12
Chy. 320. This case was attirnicd in ajipcal. Sec
32 Q. B. 30, note.
Land sold for taxes under ( '. .S. IT. ( '. c. 55,
was descriljed in the iisscssment roll, advertise-
ments, and treasurer's warrant, as the south
part of the west half of lot 17, in the 0th con-
cession of Rawdon, 75 acres; and in the sheriff's
deed by metes and bounds : — Held, that ^iccord-
ing to Knaggs r. Ledyard, 12 Oby. 320, and
McDonell /-.McDonald, 24 Q. B. 74, such <le8-
cription was insufficient. Wilson, .1., but f(U'
these decisions, would have held the description
sufficient, as meaning the south 75 acres of the
west half. Semble, such a defect would not l>e
cured by 27 Vict. c. 10, s. 4, or by the 20 & .SO
Vict. c. .53 s. l.-)6, or .32 Vict. c. 30 s. I.'m, O.
Booth v. Gmhrooil, .32 Q. B. 23.
A certificate given for the portion of a lot sold
for taxes on the 12th November, 18t)7, under
29-30 Vict. c. 5.3, stated it to be the "one-
twenty-seventh part," without further describ-
ing it. The deed given on the 19th April, 1871,
described the laud oy metes an<l bounds : — Held,
that the deed was void. Wil/lums v. MrVoll,
23 C. P. 189.
Where there were two lots on a street with
the same numlter, one on the south side and one
on the north side, and neither the .assessment
nor the sheriff's deed on a tax sale thereof |i
tinguished the one front the other, thu.inl«i^
held void for uncertainty. Loiiiif v. Wnlkimiiitt
15 Chy. 3.32. " '
A sheriff's deed for " about fifteen acres, uii,^|
or less, iteing the whole of a block or piece J
land adjacent to the (irand Tnink Railt«f
being a part of lot number twenty-seven in ^\
first c(mces8ioii of .South Kasthope, UDwiui^l
town of Stratford :" — Held, insufficient, unlj
C. .S. U. C. c. 55, and the <leed void. Ikriiijl
V. Kh/;/, 18 Chy. 49«!.
See Sffiriirl v. Tfimiarl, 22 C. P. 284, p. iJ
(1>) Of/lfl- ClIMfM.
The deed of land sold for taxes may beigj
> )jy the sheriff to the assignee of the highest l.
der. Land which has not l>cen descrilxid bvi
surveyor-general is not liable to be sold fdrtuJ
Do<- (1. Bel/ V. On; 5 O. S. 433.
Where land was returned under 5!) (ieo.
c. 7, s. 12, as described for patent, it was L
for taxes, and having Ijeen regiilarly hoM thet
for, it was hehl that the sheriff's deed muttpi
vail .igainst a patent subsequently iasuedtotl
original nominee or his representative. Ciio^
V. J)iiliiiatif, 14 Q. B. 585; Ifi/ckiiiiinv. I'unU
tnihiini, ii C. 1'. 385.
QuH're as to tliu effect of a cctnveyaiice i
Hi Vict. c. 1S2. /ffirlxtiini v. Hoii^tliK/^ ' (' \
4»i4.
• Certain land was H(dd for taxes in 1830, i
(j (Ieo. IV., c. 7. but owing to the loss n.
certificate no deed was macTe by the sheriffm
1 8(i2. The 1 3 & 1 4 \' ict. c. (i(i, which was p
on the 1 0th of August, IS.W, .and came intofim
on the 1st of .Jitnuary, 1851, repealed the 6 (i
TV., except so far .as it might affect any ..
which had accrued and were due, or any rem
for the enforcement r>r recovery of the same]
Held, that this exception did not continueli
l)ower of the slicriff to convey, .ami there
that nothing ])aased by his deed. Bn/«iiM^
v. I fill, '2^ il B. 9«; followed in Co//«i- v., VbH
land ; Sfi'miM H ill, v. Jaiiiicn ef ('/., 18 V. f.l
But the purchaser may defend under I
sheriff's certificate given .at the time of i
notwithstivnding he has given it up on receii
the invalid conveyance, ('otter \. Suthn^
StemiKet al. v. Jrif/Hen eta/., 18 ('. P. XTi.
The 13 & 14 Vict. c. ()7, .allows three yeanl
redemption before the sheriff can convey.
w.a8 reiiealed l)y 1(> Vict. c. 182, M-liich eaiueiJ
force on the 1st of .January, 18.54, cxceptiij
far as it might affect "any rates or taxes off
present year," 18.5.3, "or any rates or I
which have accrued and are actually dne, orij
remedy for the enforcement or recovery oti
rates or taxes not otherwise provided for byi
.act." The plaintiff purchased under 13 tl
Vict., in 1852; so that he was not entitled f
conveyance until the act had been rei)ddj
Held, that as the exemption in the rept
clause gave no jiower to complete inchoate [j
ceedings, the sheriff could not convey, sltli
such a result was clearly not intende<l
/)o)ifi/i/ V. Mr Donne// et a'/., 24 Q. B, 421
Tn ejectment defendant claimed thn
sale under (> (ieo. IV. c. 7. The warrant relie
util ill 1837 to the t
Uckljiel,/ Y. J);ri-i„^„„,
Iti. /tetleiiip/ioH of Lm
ht and redemption by )
^« out .after the salc^
ii
ASSESSMENT AND TAXES.
2U
.1 in 1837 to tilt then HlieritI', M., wlmuuiMud
"lioW o^'mh in ISSt" ; tho ruturn stated the
to hr.ve been made in 1840 ; and M. executed
' (le<(i in IS-tl : -Hehl, clearly insutticient,
thf sftle »»'l ''*'®'' '^*''"*' '"*•'" '^y " person
r pf „jjice were pri«' facie unauth(jri/ed, and
"„,lj„t proved mi i-oceeilings taken hy M.
ich could lie regarded as an incejition of
cuti.)"- If there had been such proof, <juiere,
ether the law i^ *" inception of execution
ocess applies eijiuiUy to tax sales and to
yf land on judgments. McMi/liiii v. Mc-
ml'l, •.t> y- 1*' •*'''**•
ISemble, that a deed by tlie successor of the
Lriff wiio made the sale, is good under 'It
fvict. c. '.'S, s. 43. /I'-ll V. Mr/.H,„, 18 ('. I".
14 f^jfu-l i)f Mitrliiiiiirf I'liirhiu'iiiij.
•loperty subject to a mortgage, having Ijcen
jirwl to run into arrear for taxes, was offered
Mjale under the wild land assessment law,
I the mortgagee purchased and obtained the
from the slienfl. The mortgagee after-
^Is suetl the mortgagor for the mortgage
wy and interest, whereupon the niortgagoi'
laliillto restiain the action, asserting that
fgale discharged him from the mortgage
i The court refused the application, the
[It of nui-'l' purchase liy the mortgagee being
[renter than a ilecrec of foreclosure ; where,
;er a tiiial decree the mortgagee proceeds to
xe payment of the mortgage money, it will
I up the foreclosure : and, Senible, that after
jasiJe the mortgagor might have treated
EffioitBagee iW lial>le to be redeemed, and
I tileil nis bill for that purpose. Smart v.
\ 10 Cliy. '•!••
jthougli a mortgagee may as well as a
w purchase lands of which he is niort-
,, still, if he purchase as mortgagee, and
jt his interest in the land a giound tor being
led to purchase, he cannot set up his title
i obtained against the mortgagor s right to
Ip. Kellnv. MiK-Ufiii, 14Chy. •«).
iB(l lianng been sold for taxes, a party in-
6(1 therem as mortgagee applied to the
E of the sheriff to be allowed to purchase,
I ground of his having an interest in the
I and was iwrmitted to do so, his only
Utin the land l)einc as mortgagee : -Held,
he purchaser could not afterwards set up
tie in opposition to the mortgago>''s claim
«m. III.
hrbolfehlx. DH-inxon, lOChy. •22(), p. i-Ht.
|5. Recoftriiiij hack Piiirliuxn Moiitji.
Jere lands not assessable were improperly
ft taxes :— Held, that the purchaser could
»Yer back the money in an action ii'jainst
bunty. It did not appear in this ciise
p a conveyance had been executed to the
1 or not. Aunliit v. The Corporatioii of
Imlyii/'Siwrw, 22Q. B. 73.
^le X. p. 260.
10. Raleinpliou of Landx sold.
ncnt and redemption by a stranger before
"T it out after the sale will prevent the
, forfeiture, thougli done without the knowledge
; of the owner, liimltoii v. Itiilhin, 'i O. 8. 3<J2.
I The time of redemption excludes the day on
I which the sale takes place ; an<l the expreflsion
! "from the time" may lie hehl as either incluBive
\ or exclusive of the day, according to the context
in the statute and the bearing and object of its
; provisions. Jli.
I If the ti'casurer certify a reilemption impro-
i perly he is liable, and not the sheriff refusing to
[ make the conveyance. lb.
i The defendant, as treivsurer, returned the
plaintiff''8 land as part of a tract on which taxes
were unpaid. The plaintiff tendered the amount
of taxes on his own poi-tion, which defendant
refused to accept, and the land was sold : —
Held, that an action would not lie against the
treasurer for not accepting the redemption
money, the tender to and ix'fusal by the latter
being equivalent to ])aynient, and that therefore
the plaintiff had not lost his land. Cuiinlnqhaiti,
V. .\tarkhml, 5 0. S. (W.'..
llcUl, th.it the assignee of the original owner
of property (sold for taxes) was entitled to re-
deem under sees. !) and 12 of l(i Vict., c. 183,
Hil,-hi-Ut V. Tohht, 7 ('. P. 141.
When a sale took jjlace ui>on the 7th of t)cto-
)ier, 1840, and the numey was not paid to redeem
until the 8th of October, 1841 ;- Held, too late.
/'romf/ool V. Uii.*li, 12 C. I'. .')2.
The land was sold in Octfdier, 18ti0, for the
taxes of 1855, IStW, 1857, and 1859, under a
warrant date<l 11th June, 18G0, the amount paid
by the purchaser being .$31.51. In .January,
I8(il, the plaintiff' applied to the treasurer tu
know the amount of taxes then due on the lot,
and was told .1«7.48 for the yeaiu 1833 to 1860,
inclusive, which he paid, and took a receipt as
for the taxes of those yeai-s. The treasurer, in
March, 18(il, went to the sheriff's office and
caused an entry to be made in the book of sales
opposite to this lot, that the taxes had been
paid within two months after the sale, that he
wouhl pay the purchaser the redemption money,
and that no deed was to be given. The shenft'
and the treasurer afterwards saw the purchaser
and told him what had been done ; but, for some
reason not explained, the sheriff' subsequently
executed to him a deed :--Held, that the laml
had been redeemed, the plaintiff' having substan-
tially complied with C. S. U. C. c. 55, s. 148.
Allan v. naiiiiUoli, 23 Q. B. 10».
An entu'e lot having been sold, one (J. paid
the redemption money on the east half, and one
P. on the west half, but it being represented
that P. 's payment had been made by mistake,
the treasurer applied the money, by r.'s autho-
rity, to another lot : — Held, that under C S. IT.
C. c. 35, s. 113, the owner of part of a whole
lot sold for taxes might redeem such part on
paying the proportionate amount chargeable
against it ; and that the clause did not merely
auow such payment before sale. The east half
wfis therefore held to have been properly re»
deomed ; but, quwre, if redemption of tne whole
had been necessary, as to the effect of P. 's pay-
ment by mistake. Payne, v. Goodyaar, 26 Q.
B. 448.
If the owner, instead of payinc the redemption
money to the county treasurer lor the sheriff's
r;!
256
A8HKSHMENT AND TAXES.
:^ii
I
I
f
vuiuluo, |my8 it t<> the Uttur pui'Moiiully, luiil hu
iuiuepta it, tha paymuiit iH, in ut|iiity, ull'uL'tiiul.
('nmefiiiiX. lUtriihiirl, UCliy. (Kil.
So if tlio slioriff'H voiidue vt'r))iilly u^il-c tn
aoL'upt |iayiiiuiit pcriMinally at a iliHtuiu'u frnni
tht) vuiiiity town, aixl the nwiici' urtH on tliix
agreement, thu dtliiT cannot aftvrwanlH, to tliu
owner's prejudice, n;(|uirc the nionuy to iw ]iai(l
for him to the treaHurur, ivfuNe to ifceive it hini-
Nelf when it \» too late to pay tliu truasiirur, ami
insist on liohling the lani( ax forfeited, I h.
Where Hiieh uii agreunieiit waH proved by a
cretlible witnesN, Imt there wuh eontradietory
evidence a,n to whetiiei' what took [>hiue anionnted
to an agreement, the eourt holding that thu pre-
sumption in a ease of doubt niuxt be in favour
of fair dealing and not of forfeiture, gave tlie
owner relief. Il>.
Hon Uuu/l,HI V. (.'iii'/Miiilliiiil III' tllf I'litliiK 'mill-
lifHof York inn/ /',!■/, •_>.-> g. \i '.'1, p. •-'((!.
17. < IhjfcHtiiin (.'urn/ />;/ Sliilii/n.
Ijuu-re, as to thu etfuut of a uonveyance under
sec. 65 of U) Viet. .■. 182. Iliir/iinirii v. lioiishcii,
7 C. P. 4«4.
A Hale under a warrant not Healed : Held,
invalid, and the defect not cured ))y 29 Vict.
0. 20. Miiiimi v. liiK-Aiii/, 2(» y. H. ."i.Sll.
An action of ejectment to ti'y the validity of
a. tax title having been begun l)efore 'Xi \'ict.
e. 2.S, ()., WOH pasHed, ti\e eourt, under sec. 4,
tleterminud tiie objections taken to tlie nale, in
order to nettle tlie ri>,'lit to costs, as if the act
had not been ijassed. MrAi/!r i-t <i/. v. Cur/n/,
;w y. B. :u!).
Semblu, that tievural objections taken to the
tax title, and set out in the report of this case,
were cured by the 33 Vict. c. 23, O. Dariin v.
VaitXonmiii, 30 Q. H. 437.
It is not incumbent, under 33 \'ict. c. 23, O.,
for the tax purchiiser, in order to l>ring himself
within the protection of sec. 1 , in cases where
he has paid eight years taxes charged on the
lands, Ui nrove that the taxes so pai<l li^^l been
legally cnarged, but the production of the
treasurer's l>ooks, showing that such taxes had.
been chargetl and paid, is sufficient. I'ttd^r
that act any person claiming under the tax
purchaser may avail himself of the provisions of
the Act. Fraur v. Wrsi, 21 C. P. KJl.
Held, that sec. 155 of 32 Vict. c. .%, «)., does
not make valid a deed given in pursuance of a
sale for taxes where there were in fact no taxes
in arrear at the time of ""sale, but they hsul
been regularly paid, //a mi/ton v. tji/ii/efoii, 22
C. P. 53«,
A tax sale of land for more than was due, is
not rendered valid by 27 Vict. c. 19, s. 4. IVi/'-
liam V. Hal/, 15 Chy. 3,35.
Where two half lots were assessed separately,
a sale of the whole lot for the total amount was
held invalid, notwithstanding that act. //>.
Jn 1865 the land Wivs sold for six years taxes,
including 1858 ; for that year the safe could not
lie supported, and as there were not five ycora
due of any portion of the residue for which the
warrant issued, the whole sale was held bad — and
Held, follow ing Vokham ''. Hall, 15 (,'liy. 33,'J
1 that this defect was not cured by the 27 Vict
19. ». 4 : 29& :W Vict, c .'>3, s. 131, m'.ti Vn,,,
3li, N. l.'iO, <). lUit for that duciHion, Wijaon ji
I Would have iield otherwise. Ki/iulninjl, /,,,|
I A»/iiiritiii> Co. V. FiriiiiMiiii, 32 y. H. 2"tH. '
l«vnd Hold uniler ('. S. IJ. (.'. c. 5."), w-«i|k|
I .scribed in the asseHsment roll, advertiai'iii(||t.|
land treasurer's warrant, as the south pitrtdfi^l
• west half of lot 17 in the 9th concession of |>„f
I don, 75 acres, aiul in the Hheritf's deed l>ynirtj
jundlxiuuds: Held, insutlieieiit ; and, .Stmi^l
HUeh a tiefect would not l»e cured 27 \'ii t, i, 1)1
H. 4, or by the 29-30 Vict. e. 53, s. I,")(i, g, jl
Vict. C. .3ti, S. j.V), (>. liiinl/l V. fi'ii-iliriiijil %
i). n. 23.
It was objected that the descriptidii nf
land on the roll and in the warrant as the
and W. pt. S. 1^, 1(15 acres, and the N. (,
and W. pt. , S. A, Cm, was insufficient: and tin
the treasurer had improperly altered tlio rull
as to reduce the taxes by one half, ami nui
the desci'iption Htill more defective Imt HtUj
that these objections would be cured liythe]
Vict. c. 19, s. 4, and 29 * m Viet. ,■. :j J
131. //>.
'J'hc slKM'iirs iIcimI was given on tiie IDtJ
May, IS(><i, and the action was not lirn
until the I3th of .January, 1871; Held,.,
the plaintiir was not barred by the 2!) IJOVa
c. Xi, s. l."i(i, [Kissed on the 15th Aiigust, I
which made salid all tax deeds due Ih.'Li
unles.-t (luestioned within four years fmnitL
ilate ; for that the eH'ect of the 32 Vict, t.;
s. l.")5, (»., passed on the 23rd of .laiiuarv, ..
was to give two years from the passiiiy uf tlutJ
to all whose rights were not then barruil. /i|
Hy the Assessment Act of 18(i(!, (iwiitrd
four years to inipeaidi a tax deed. By an
passed in 1869, all actiims for that iinqVise
stayed until after the following session ; ai.
another act of the same session all prew
Assessment Acts were rej)ealed, anieiKled, 1
consolidated, with a reservation of rights bil
acrpiired undei" the repealed acta. By n»|
the clauses of the amended act the limit 1
K tinted for bringing actions was two yein;J
eld, that an owner who had less than tvrojii
of his four remaining when the acts of ]Mh
passed, had like others two years thcreafKrl
bring liis suit. < 'unnur v. ifcl'lnrmn, I
607.
Where taxes had itccrucd due <in certain li
in the county of Bruce, before the separatinl
that county from Huron, which took plaitf
the Ist January, 1867: — Hehl, that the t
surer of the county of Huron, after the 1.
ation, could not advertise and sell such I
for these taxes. Held, also, that the sale^
not made valid by 32 Vict. c. 'M, s. I5,i,0,,(
it only applies to' deeds given by the 8hejii|
treasurer authorised to sell. The
Permanenf Bn'M'inq niul Snr'nir/tiSucietjiw.in
23 C. P. 200.
Where a party relies on a tax sale, it til
suUicient in equity, any more than at la^
produce the sheritt s deed. There nnist,aiiiJ
other things, lie the proper legal evidence Jj
taxes having been in arre.ar for the need
period ; and such evidence is not (lisjienseil]
by the act 27 V'ict. c. 19. JoifM v, Tkf
0/ Ujijter Canada, 13 Ghy. 74.
vt
I Act .32 Vict.
kihiiig sales for I
thu validity
Mtion. If n |ilaii
H«a, (iiiu only ol wh
[) the validity of a
) the other branch
nixir/, 2 Chy. t'hai
|Eel<l, |>ur Richards, I
' ,U»lt, ./..anilStr
■bting), that 27 Vic
unu regards the p
taxes in ruH|)uc
I m arrear for live 1
I whore an occupied
jceiipiod. Hiinic of
: W, in Ajjpoal.
ilbjections to a sale
I were not shewn to
%\ hy the Q. .S. ,,ndoi
ritotutcs, and that
Ideni'o of the sheriff 's .
Belli, iindor thocviden
.c. .53, 8. \5*),().,a.ni
The 33 Vict. c. 2.3, s
e in favour of the sale,
1 Comlen, Q. B.
«d.
18. Othfr
L do of hinds ma<Ic bol
le district of C'ollwrm
lof which had accrued
I of the district of J
kome was formerly a par
|din. Doe A. The En
lfr,4Q. B. 23j follow*
18C. P. .357. .Seeala
V Sixutji v. Aijnew,
Vict. c. 22 is a de
hre as well as prospe
, Doe A. The Earl of M
j(B.23. "^
ilomiMionof a townsh
fith section 49 of jfi \
[ the county treasurer
II collector's roll, was nol
»8»lefor taxes, which
1 by him, Allan v. FL
lere land has boon sold
tes than has been o
_.-, such sale is void. ^
m', Cotter v.Sutherkim
M, 18 UP. .357; 4
K tliat the neglect of i
*ith sufficient care for
^Bsessed on his roll, in
tentbynost under the
i '»^' ""I not invalidi,
1.10 objection to a sale
ri^ytl'eaottomako
I December, but delay,
^"«'nng,forthatitw.-»8
fe L?*?'"!"*^ council
r the title; and as the
I'tl'outobjectioD.itmigh'
ASSESSMENT AND TAXES.
258
The Act 32 Viot. c. 3fl, O., utaying actuniH
tW^oli tho vuliility of ft Ux wilu iit oallcd in
LMtion If » JilinntiR' cliiiinn land liy two
tSL inie "Illy "• whi^-'l' ii'volvos any iiucMtidii
f^'tho valiimy <>f <* •;»'' '"*'^'> •>" '""y Vf"^-^^'^
kliithoothor lirnnoh of liic awo. Cumiron v.
jiiAmV, 2 Chy. Cniainb. 340. -Mowut.
Ill«lcl iMjr UichariU, ('.■!., Wil»oii, .1., Mowftt,
\c ({ilt, J., an.l Strong, V.(J.. (lJrai«.r. (J.J ,
■btina), that 27 Viot. c. lit, h. 4. cures all
" ji regards the imrcliiwer at a tax Halo,
Iniv taxes in rospcct of tho land 8old had
I in arrear for tivo voars ; ami this rule ap-
whoro an occupied lot has boon asiiossed as
iceuiiietl. W'""'" "/ Turoiito v. Fannimj, 18
. nyi, i" Appeal.
Jbieetions to a sale made in ISHO, that tho
M wore not shewn to havo hocn nroporly im-
Klhy tho Q. S. under .W (ioo. 111. c. 7, and
riUtutcs, and that there was no sulHciont
Jem-oof the sheriff's advertiscnioiits of sale;
K|,4 under tho evidence, to ho oured })y 29-30
Tc 83. s- 15«,0.,and.S2 Vict. c. 3(1, s. 155,
The 33 Vict, c 2.3, s. 2, ()., was also appli-
b in favour of the sale, under tho facts proved.
V, Voimkn, Q. B. H. T., 1874, not yot
18. Oihet- Ca»M.
„,(! ()( lands made before tho 8 Vict. c. 22,
! district of Colborno tor arrears of taxes,
lof which had accrued duo before the divi-
i of the district of Newcastle, (of which
lome was formerly a part) , is legal. McTjcan,
Idiu. Doe d. Tlu- Earl of Mountcashel v.
\t 4Q. B. 23; followed in Cotter v. Huther-
18 1*. 337' '^60 also CanwUt Permanent
<Q Socktij V. Aijnew, 23 C. P. 200, p. 256.
,8 8 Vict. c. 22 is a declaratory act, retros-
Ive as well as prosiiective. McliCan, .1.,
Bk (1. Tlui Ekirlof Mountcanhel v. Oronr,
.23.
J omission of a township treasurer to ooni-
fith section 49 of 10 Viet. c. 182, by fur-
j the county treasurer with a correct copy
i collector's roll, was not sutKcient to iuvali-
kwle for taxes, which was properly cou-
l by him. Allan v. FUher, 13 G. 1\ 03.
lere land has been sold for a larger amount
than has been or can bo lawfully
d, such sale is void. Allan v. FinliKr, 13
) ; Cotter V. Sutherland — Sterenx et nl. v.
tttal., 18 C. r. .357 ; DoeMcGillv. Lawj-
!• B. 91.
I that the neglect of the collector to en-
fith sufficient care for the address of the
ised on his roll, in order to transmit a
lent by post under the 4 1st section of 10
, 182, did not invalidate a sale of land
|or non-payment of the taxes. A llan v.
,13C.P.t)3.
, no objection to a siile that the collector
nnd by the act to make his return on the
if December, but delayed till tho 8th of
plowing, for that it was a matter between
I tiic municipal council, which could not
ice the title ; and as they received the re-
phout objection, it might bo assumed that
17
thoy had appointed tho 8t!i ol April to make it
on. MeDunell v. Me lh>,i,'t,l, 24 Q. H. 74.
It is not ncci'HHary tha^ the triiasiirer should
keep his acL'i.untM of taxes due accMinling to tha
Htatiito in order to validate the sale. I'olirr v.
Siithirtiind—Steiyna et at, v. Jadiuea et al., 18 C.
I'. .•{57.
Per A. Wilson, J. — Tax statutes should not
lio ooiiHtrued as statutcii creating a forfuituro,
but ratiicr in tlio sauio manner as statutes by
which landH arc sold uiidor oxocution for debt,
and the same rules which apply to sales under
oxocution MJiould govern tax sales. lb.
Per A. Wilson, .1. —.Strict proof Hh(>nld Ihj
^iven as to the legality of the tax and its actual
nnposition, but in matters concerning its collc.;-
tion unnoco.>(sary or unreasonable rigor in carrying
out the clauNOMof tho statute shouhlnot l>eexaote(i
from tho otficialu entrusted therewith If).
Considerations as to what reiiuirouients of tho
tax Acts aro imperative, and what are merely
directory. //».
It is competent to sell tho whole of a lot for
taxes, and tho court will not presume .against a
!talo on the supposition that too nmch land was
for a small amount.
',r
sold
/h.
Sales for taxes made after tho return day of
the writ to sell, arc v.ilid. /t>.
When taxes are in fact imposed on patented
lands, :ind no return of the surveyor-general of
tho land having been granted i ii be found or
proved, such return maybe prc-tumod. Il>,
When, owing to laud 1>cing patented in July,
taxes aro charged thereon only for half a year,
yot that is in ell'cct a tax.ation for tho whole of
the fiscal year, ami so long as the patent issues
before the .assessment is ('oni])lctcd, taxes for tho
whole of tho year wherein such pntont issues
may bo properly imixiscd, and the lands sold
therefor if unpaid. Ih.
A designation in tho treasurer's list furnished
under 32 Vict. c. 30, as "the N. or W i U = "—
Hehl, sullicicut. Stnourt v. Tii<j>iart, 22 0. P.
284.
It is not necessary at a sale of land for taxes
to doscriln) particularly the portion of the land
to 1)0 sold, and therefore a s.ale of "80 acres" of
a p.articular lot was held sufliciont. Ih,
The party .assessed may become the purchaser
of tho land sold for taxes. lb.
The treasurer's list, under sees. 110 and 131
of 32 Vict. c. 30, O., is sutftciontly furnished at
any time during tho month of February, lb.
This list need not contain tho amount in
arrear. //*.
The county treasurer is not at liberty to
bucome a purchaser. In re Cameron, 14 Chy.
012. See, also, Tmld v. Werri/, 15 Q. B. 614.
}{cld, that the plaintiffs in this case, claiming
against tho sole, were not l)oun<l to pay the value
of improvements under 33 Vict. c. 23, O. , for
tho sale was not void by reason of uncertain or
iusutticient description of tho lands sold, and
therefore not within tho statute. Edinburrjh Life
Asuurancc Co, v. Fcryuson, 32 Q. B. 253.
'¥ir^
m
ASSESSMENT AifD TAXES,
m\
It was objected to a sale under ] 3 & 14 Vict,
c. (>7 that tliore was no proof of want of <liatreHS
on t)ie land, nor of tlio advertisement of sale :
that the attidavit of the collector was insutU-
cicnt : that the assessment was not proved :
that sees. 45 and 4t) of the Act had not been
complied with; and that the slieriti' did not sell
that part of the lot most beneficial to tlio owner;
but these objections, upon the evidence set out
in this case, were overruled, except the last,
which was not decided. I'^tnct v. Foyid, 32 Q.
B. 119.
The county council, by by-law passed in June,
186(i, directed the treasurer to collect all taxes
on lands where the same was in arrear and uu-
p.aid on the 1st May, 18G1 : — Held, that under
this he should have sold for the arrears due up
to 1865. Tlwmpson v. Cokock, 23 C. P. 505.
On the 5th of February, 18G7, the lot in (jucs-
tiou was sold for taxes due for 1859 and 18G0, and
on the 28th December, 181)7, it was again sold for
the taxes due for 18()2, 3, 4, 5, and 0, these latter
taxes being duo at the time of the lirst sale :—
Held, that the second sale was valid, for the fact
of the subsecpient taxes being due at the time of
the lirst sale and not included in the warrant
under which it took place, did not free the land
from the payment thereof, lb.
To a suit by an owner to set aside a sale for
taxes, the planitilF offering to repay the pur-
chase money, with interest, the corporation of
the county municipality is not a necessary party.
Smith V. Bedford, 12 Chy. 316.
Where the court is called upon to set aside
a tax sale which is eciually void at law ar.d in
equity, the court <loes so, if at all, only on such
terms as arc equitable. Paul v. Fcr(iu.ioii, 14
Chy. 230.
After a sale of land for taxes for 1850 and
following years, a subsecjuent sale for the taxes
of 1858 was held invalid, and the purcliascr
under the lirst sale was held entitled to retain
the land free from past taxes, ^fdll1 v. McKay,
15 Chy. 192.
Where ejectment had been brought by the
purchaser of lantls alleged to have been illegally
sold for taxes, the court declined to interfere by
injunction to restrain the action. 'I'lie proper
course in such a case, in the event of the sa'e
being found invalid, is for the owner to tender a
deed to the purchaser for execution, and on his
refusal to execute such a deed, to apply to this
court for relief, lianiberqcr v. McKny, 15 Chy.
328.
The Act 32 Vict. c. 35, O., staying actions im-
peaching sales for taxes, applies only to cases in
wliich the validity of a tax sale is called in
question. If a plaintiff claims land by two
titles, one only of which involves any question
as to the validity of a tax sale, he may proceed
as to the other branch of his case. Caiiirruii \.
liarnhurl, 2 Chy. Chamb. 346. — Mowat.
One Tripp, l)cing owner of certain land,
cxccuteil a marriage settlement, under whicli
his wife was entitled to the land for her life ;
the taxes aftei'wards fell into arrear, and the
land was sold by the sheriff to pay them. Uy
arrangement with the purchasers Tripp's widow
t)ecamc entitled to their interests in the pro-
perty ; and she having aolil it to the dcfcntlant
C, the purchaser at sheriff's sale conveyed t«
O. In a suit by the assignee of Tripp's heirstc
set aside this sale, (!. claimed to be a purdiascf
for value without notice. The same solicitor
acted for the vendors and vendee, f!., in \]J
transaction of the salelto fr,"and this.solicitiJ
knew then and before that Tripp had been tlit
owner, and tliAt he had executed a niarriaa
settlemunt under which his wife was tenant fori
life : but he did^not know orTsuspect she lal
bound to pay the taxes for which the laiuUnI
sold, and he did not communicate to (i. thiitslid
was under any suchj'obligation : — ilelil, tliatiii
was not affected by constructive notice of tLebl
bility ; and the bill against him was disiiiiss^I
with costs. Monro v. Jlitdil, 20 Chy, 53,
X. l!K(()VKiux(t iJACK Taxes Wiio.NcKiuy
Imposeu.
Where taxes were paid to the treasurer of tul
Home district on lands situate in tlie Ottaul
district, for the i)urposc of their being traul
mittcd to the treasurer of the latter distjinl
and the treasurer of tlie Home district l.
having so transmitted the amount, the Ul
were duly advertised for sale, and the jjlaintiil
in order to save the lands, paid the taxes to liil
treasurer of the Ottawa district under proKsf
— Held, that he could not maintain an actiniifjf
money had and received against hini to rctorjj
them back. Baldwin v. Johimoii, 2 Q, B. 4'lf
1 f a person overrated pay the overrate mtiiin
remonstrance or compulsion, he cannot ;
wards recover it back. Qranthamv. 7'AeCifjJ
Toronto, 3 Q. li. 212.
The plaintiff paid certain taxes imposed l)jl
by-law of a district council. This by-law i
afterwards decided to be illegal in ejectm
brought by this plaintiff' to contest the valiJi
of the sale of his land for these taxes, but in
not quashed by the court, because before ll
application was made for that ])urpo8e it k
been repealed by the council who
The plaintiff then brought this action for moi
had and received, &c., to recover haekwhtj
had paid. During this suit the IG \'iot c. \
was passed, enaetmg that taxes imposed i "
certain by-laws, of which this wa.s one, slw
be \'alid, &c. The action was helil to be dcfei
by this statute, and it was unnecessary, i
fore, to -determino the point argned—whe'l
money had and received would lie unde;!
circumstances in which the payment was n
McGVl V. Municipal Council of Pclerhomijjii
Victoria, 12 Q. B. 44.
\Vhen goods are seized, and money paid i
protest to release them from seiznre, an iwi
will lie. Smith v. iyhau; 8 1-. J. SD/.-CC
Mackenzie.
Defendants having assessed cerUiii
non-resident the treivsurcr returned the
in arrear and issued his warrant tor lhtit<
The plaintiff", to avoid further n\mte,l
the taxes under protest. The lands werel
l)atented, and not liable to be nssenscd :-
that the money having been paiil nnder]in
and protest, the plaintiff was entitled tor
it back as money had and received. Sin
CWjiornfion of fiimcoc, 12 C. 1*. 284; .ili"
appeal, 2 E. & A. 211.
1261
^ The ])Iaintiff havi
.tJie county treasurer
be due by him on
Jcounty, on the tern
llhewn in the stateu;
jthe circumstances c
[plaintiff's agent, and
Iwasa voluntary one
[the facts, and coidd
llmt V. Ciiunty of La
Held, that the Crow
.1 its right to recovci
leld on behalf of Her
f the officer in chare
'rineipal Secretary oj
forporation of the City
Where lands were s(
year the owner pai(
juiity treasurer the s
\m, he having olyect
jat he could not reco
»autyaa money had a
lc.l48ofC. S. U. C. c
his use, but for that
payment of I'odemj.l
purchaser of his rifdit
ihn V. The Corporatl
of York and Peel, 25 (
The plaintiffs Jiad for a
■ tie Court of Jlevisio
imst them, and from
?e, who had reduced
ind that a large port
occupied by the courti
Ment being repeated,
irtof Bension, who sai
tity solicitor, and th.J
■war again. 'J'he pi
by the clerk of Che Co
Dudgnient had been mvei
' book where their , lee
^collector in October ca
secretary, who supposi
sum assessed. 'I'he'tii
"•cred in the followin..
m'ght recover it baci
Mfuot having determ
as,regar,led the plaintifl
% withm section 61
."M'to bind them. J
«" the ground that the
Ifered as regarded the pi
l'"clleeta(lecisionagain
T{"Jlp]M-Vanadnx
fcf' |«"'ls were sol.l b,
|a"ie lands sold to the
I to legally assesse,! fo,
^'H and 1865. The ,
^ to the county treasure'
totJueandpaidit, stati.
'ljrute«tand|witho„t
.butnodeniiuulhadbc,
hexerei.,ednrthreatene
N« .-Held that the m,
■ re';oyered back. /y,„
r "J the County, fj,yr;i,;
r ™"»"o»-''osidcnt 1.^
''J
>i;
2C1
ASSESSMENT AND TAXES.
2G2
The plaintiff having remitted money through .
the county treasnrcr to pay taxes supposed to
be line hy '''"' "" unpatented lands in that
county, on the terms stated in his letter (as
•hewn in the statement of case) : -Held, that
the circumstances created the treasurer the
tUintiff's ag'jut, and that the payment as made
Ivasa voluntary one with a full knowledge of
Lvp i^is and conld not be recovered back.
btrietv. 0;un(y of LamhtoH, 12 0. V. 2fl4.
Held, that the Crown could not be prejudiced
ji its right to recover l)ack taxes paid on land
beld on behalf of Her Majesty, by the mistake
i the officer in charge in paying them. The
Principal Secretary of Sfale for War v. VVic
yporatm oflh- City of Loudon, 23 Q. B. 476.
Where lands were sold for taxes, anrl within
year the owner paid under protest to tlie
ounty treasurer the sum rctpiired to redeem
hem he having olijected to the .sale : — Held,
hat he could not recover this sum from the
louutyas money had and received, for under
M. 148 of C. S. U. C. c. 55 it was received, not
r his use, but for that of the purchaser ; and
J iiajTiient of redemption money, to deprive
• purchaser of his rights, must be unqualified.
wiLm v. The Corporal ion of tJn- Intitcil Coiin-
,of York ami Peef,2r^<.). li 21.
^The plaintiffs had for several years appealed
I the Court of Revision, who had decided
nst them, and from thence to the county
le, who had reduced it one-third, on the
mud that a large portion of tlieir building
J! occupied by the courts. In 1804, the same
iesament being repeated, they ."ippealed to the
prt of Rerision, who sai<l they would consult
I city solicitor, and that the plaiiititls need
\ appear again. The plaintiffs' solicitor was
i by the clerk of the Court of ]{evision that
Budgnient had been given, and found none in
I book where their decisions were entered.
^collector in October called upon the plaiii-
i' secretary, who supposing all was right paid
I sum assessed. The"Tniistakc having l)een
wercd in the followini' year :— Held, that
might recover it back, for the Court of
fision|iiot having determined the appeal, the
I as regarded the plaintiffs,'was not '' finally
led," within section (il of C. S. U. C. e.
1 asHo bind them. Hagarty, .1., disseiit-
Ecn the ground that the rsturn of tlie roll
Ittri'd as regardeil the plaintitVs' assessment,
liu effect a decision against them. Tlir Law
fill (if Upper CuikkIh v. TIk' Corporation of
Vi(",'2ri;y.'B. 199.,
fcrtain lands were soM by the crown to 13.
te, which sale was cancelled in 18()(!, and
|saiiie lauds sold to the plaintitl', to whom
Tpatt-'ut issued. The land, it was admitted,
[beeu legally assessetl for certain taxes for
1 1864, and 18()i>. The plaintiff, on appli-
1 to the county trcasurerj ascertained the
lilt due and paid it, stating that he did so
t protest and |without prejudice to bis
B; but no denuuid had been made, nor any
lore exercised or threatened to compel such
W ;— Held, that the money so paid could
K rc'Mvered back, lieujawin v. Tin' Cor-
mvflheComity of Elgin, 20 Q. B. (160.
Bphiiitiff, to prevent his lands from being
[or taxes as non-resident lauds, paid under
waim
protest to the sheriff the sum claimed, including
costs, and then sued the county to recover back
part of tile amount, consisting of commutation
of statute labour, which he dis]mted :— Held,
that he could not recover, for the sheriff" was not
the agent of defendants, and there was nothing
to shew that he had paid it over to their trea-
surer. 'J'ho non-resident land fund is so far the
property of the county, that they may be liable
for it in such an action, Roberlison v. Tlie Cor-
poration of till' County of WeHinylon,27 Q. B. 33(i.
See P
Covpor
P ',,rljml Seeretarij of State for
ation of Toronto, 22 Q. B. 551, p.
See TX. 15, p. 253.
War V.
223.
Xr. NoN-Rr,.siDKN-T Land Vvsn.
Moneys in the hands of the sheriff" arising
from a sale of non-resident lands for taxes pur-
suant to see. 137 of C S. U. C. c. 5.'), under a
warrant directed to him pursuant to sec. 124,
cannot 1>e attaclied at the instance of creditors
of the corporation of the county in which the
lands are situate, as being a debt due from tho
sheriff' to the cori)oration of the county. Wilnon
et at. V. 7'/«- Corporation (f the United Counties
ff Jliiron and liriiee, 8 L. J. ISO.— C. L. Chamb.
— J) rape r.
Held, that all moneys received by the county
treasurer from non-resident land tax, either from
the owners or from the proceeds of tax sales,
do not become in his bands the moneys of any
particular municipalities, so as to entitle them
to sue him at once as for their moneys, but that
sucli funds must be considered as belonging to
the county council, whose duty it is to appro-
priate them as by law directed ; and therefore : —
Held, that an action for money had and received
would not lie against the treasurer, at the suit
of a township municipality, for moneys paid
over by him, before such appropriatif)n, to the
township reeve, who had misapplied them,
(^uicre, whether an action would lie against the
treasurer in any case for non-payment, or
whether he could discharge himself by payment
to the reeve. Carporation of the Townsliiji of
yotli'iraKOifu V. Jioi/,s, 21 C. r. 100.
Sums were credited by the treasurer of a
countj' in the corj)oration books to certain town-
ships, in respect of the non-resident land fund.
Vortions thereof were paid over to the town-
ships, and other .sums were in the same books
(diarged against one of the townships which the
township considered itself not chargeable with.
The treasurer's books, containing these entries,
were audited and approved by the county
council, l)ut no liy-law had been passed by tho
county council a^ipropriating the fund : — Held,
that the townships had no relief in equity,
Thr Corporation of the United ToienHhips of Meira
and ]{ama v. '/'/((■ Corporation of the County of
Ontario, 13 Chy. 347.
See lioliirtnon v. Corporation of the County of
Williiajton, 21 Q. B. 3.3G, supra. "
XII. Miscellaneous Cases.
Under s. 18 of 1 Vict., c. 21, a collector of rates
who had not psiid over the amount collected by
him and settled his accounts with the treasurer
on or before the third Monday in December of tho
.'I'M
r, ■ ,»■
^■-v
Si
. ^1
i^
! 1
263
ASSUMPSIT.
H,
i|,j^:
hi.
h^
1 ' ,
year for which he had been serving, was ineligible
to any township office, liegina v. lii/an, (i Q.
B. 296.
Moneys paid jby the owners of land sold for
taxes within one year from the day of sale, as
redemption money to the county treasurer for
the use and benefit of the purchaser, and l)anke<l
in the name of the county treasurer, caimot be
attached at the instance of a creditor of the cor-
E oration of the county as a debt due by tlie
ank to the corporation of the county. Wilson
V. The Corporation of the United Counties of
Huron and Bruce, 8 L. J. 135. — 0. L. Chamb. —
Draper.
An indictment will not lie for forging or alter-
ing the assessment roll for a township deposited
with the clerk. Regina v. Preston, 21 Q. B. 8fi.
Sec. 126 of 32 Vict. c. .%, O., directs that when
the county treasurer is satisfied that there is dis-
tress upon any lands of non-residents in arrear
for taxes, he shall issue a warrant under his hand
and seal to the collector of the municipality to
levy. The warrant was tested. ' ' Given under my
hand and seal, being the corporate seal," and the
seal bore the same form, emblem, legend, &c.,
as the county seal. The collector sold the plain-
tiff's goods under it, but it was not shewn to have
been authorized by the county council, nor had
they received the proceeds ot the sale : — Held,
that they were not liable in trespass or trover.
Snider v. The Corporation <f the County ofFron-
tenae, 30 Q. B. 275.
Remarks by A. Wilson, J. , as to tlie practice
of omitting to levy in each year for the full
amount of the sinking fund required for loans,
and its effect upon the rights of creditors, taken
in connection with the doctrine against rating
for debts past due. The Corporation of the
County of Frontenac v. The Corporation of the
CUy of Kingston, 30 Q. B. 584.
A sale of land for taxes destroys the right of
the widow of the owner to dower. Toinlinson
V. Hill, 5 Chy. 231.
Semble, a teniint for life of the whole estate
of the testator, consisting of an improved farm
and of wild lands, is bound to keep down the
taxes upon the whole. Biscoe v. VanBearle, 6
Chy. 438.
A devisee of a life estate in all a testator's pro-
perty is bound to keep down the annual taxes on
the land, and they form a first charge on the
testator's interest. Cray v. Hatch, 18 Chy. 72.
The non-production of a certificate of no taxes
in arrear is no objection to the title of a vendor.
Thomp$oH v. Millikin. 9 Cliy. 359.
Compensation was granted to the purchaser
of land out of the purchase money, for taxes due
on the land and unpaid. Stewart v. Hunter, 2
Chy. Chamb. 335. — Taylor, Secretary.
Under the act for quieting titles the court has
no jurisdiction to grant a certificate unless all
taxes except those for the current year have
been paid. Ex parte Chamherjain, 2 Chy. Ciiamb.
362.— Mowat
An engine and boiler in the hands of a receiver
having been sold for taxes, and the establish-
ment in which they were allowed to remain after
the sale liaviug been afterwards sold by order of
the court in one lot as a going concern, it Wju^l
Held, under ♦he facts stated in the case, tul
the purchaser of such chattels at the tax u\
was entitled to a corresponding part (if ttl
purchase money realized at the Chancery silT
Qibson v. Loirlt, 19 Chy. 197. '
ASSESSMENT OP DAMACJES,
I. Oexerai-ly— .SVe Damages.
II. Notice of— See Trial.
assp:ssment roll
i9w Assessment and Taxes— Municipai, fj,
PORATIONS.
ASSESSORS.
See Assessment a. "^ .xes.
ASSETS.
See Executors and Administrator,^
ASSIGNEE.
See Assignment.
ASSIGNMENT.
I. For the Benefit op Creditoiu-,
Bankruptcy and Insolvencv,
II. Of Goods and Chattels— .yce Biiu^
Sale and Chattel Mortoahks.
III. Of Choses in Action— ^c Chosi]
Action— Attachment of DEm
TV. Fraudulent A.ssionment— &c
RUPTCY and Insolvency— Cmnfll
Law— Frauhulent CoNVEVAxml
V. Of Dow^r— <SV^ Dower.
VI. Of .Judoments — See Judomknt.
VII. Of Leases— i^ee Landlord and TkJ
VIII. Of Mortoaoes — See Mortoaof.
IX. Of Policies — See Insurance.
X. Of Securitik-s — See Prixcipai ,
Surety.
XI, Of Stock— See Corporation,
ASSURANCE,
See Insurance.
ASSUMPSIT.
See Action.
1265
ATTACHMIJNT OP DEBTS.
I. Who may ArrAcir, 265.
II. What mav be Attachkd,
1. Money in Court, 265.
2. UnliquUlated Amountx, 266.
3. Where Debt hm been A.s.s!,,',Mf %(;
4. Other Cases, 269. > - •
I III. ExAMixATioff OF Judgment Debtor.
1. Affidavit for Order, 273.
2. Other Cases, 273.
IV. Practice.
1. Affidavit for Order to Attach "-^
2. Costs, 274. '"
3. Other Cases, 274.
V. DiRECTiNo Issue to be Tried, 276.
IVI. Prioritv of Judgment Cred'itor.s, 276.
WW. Operation and Effect op 2''6
IlII. Payment by Garnishee, 277.
llX. Rights of Garnishee, 278.
JX. Miscellaneous Cases 278
IXI. Absconding Debtor _ v^.. \
I Debtor. '^'' Absconding
ttl. In I>'visioN;JouRT-,Se.Divi.sioN Court.
ATTACHMENT OP DEBTS.
266
i"2rortS'*fr"S" "^ *''«,c— „
refuse,! to interfere on Th^^"***'*"'' ,"'** """rt
company had no right t„mv^r"'* *•"** ^^^
«""'-t. //.. 55], note ^^ "-' """^^ '"*«
„,, "■*•— laylor. Secretary
court to grant a stop order pL- * ^f}'^'' t^**
2Chy. C^amb. in'-tylorfS^.^^f "•--.
|i7f;.1^r--^^'</^'''''.'^-./or.c'..;2P.n.
2. Unliquidated Amounts
lias been fully ascertaWr? ^?* o*^«•wise if it
-^.3L.J.^S.^t^UfeS^^^«
abind5st:^:r&ri«j"^^
ment, sliould pay over a ,n" '" *^^"" «'»?%■
Held, that tl/e liaW?/f,f -'"""^y^, receiveil .-l
boml could not KS!L ^ :^£."J"l««- t^s
bond could not braSdJr ST' ""T}'' '"^^
fajo Brantford & O^^tn "^r^^^l'/f
1/8—0. L Chamb. -Robinson. ' ^'
I. Who may Attach,
Jliegarnisliee clauses of tho C T. P a * j
lexteiul to the Queen. The crown f." c ^^
W under them attacli a S S'"^^''''^'
won, 2 P. K. 350. -Q. B. •'"'" ^•
Bieaasigneeof a judgment eredifn^
i in his name to attach a debt *?» '"a P"""-
ri//.^3P.K.385.-Cha;;ilA.'w£;--'
11. What may be AmniED.
1. Money in Court.
le judgment debtors had lea<!P,7 f. • r,
W on the river Humber o.^UiTi" «
> stone quarry. Uoon in ni-K-* / ^" *^"^''c
N. c. 14jtheXarWe'S'"i; ^V"''''-
H/ere directed to pay them Wr^'^"^''^
Jensation for iniurv o,^w^ ? . ^''^ »« »
llessees by the eSon ofi *' *** *^'""' »«
[bridge ovi the rfver Ifo fir^l •'''*"■
I one of them, being the^Jw "^ '*'■'''*'■*-
Wdtoa buildingii t ''f*^' ^'^'l
^andaUpriviletes^fn '".**'''^«* >»
. mai in the iLe, and ?Se rair"''^'"« «*"»«
I notified by the societv L? i"^*^ company
lie Common Pleas. Thn f^^ '' P*"' i*
King obtained ju.lgn int i/w.*""* '''■^•"■
N the claim, and Xdy-l? *'!!' *="'"•*-
^moneyoutof court „r"f ^ *""^«'l *"
hpany to pay it T-R^U S' ;'?. "''•'*''• «»
[nthe Common P eaf til "** ^}'^ """"^y
h, but that if thevl'ad • nl""'*.™"''! ""*
fe=a.-^rH^-rsa
^547, ''lenrii v. /;,>„.;<( ,-< al..
j> t
tract, and the remaimlnr f a^ "'"'«^f * con-
by having the ^oTukljLt7T ^"^*""«^
•lobtor's hands :-Held thit 1 fi ■% *'*«cut>on
.not a debt! until thpl . ^ *'"« ^a"cr was
attaching ^rdS J t!, Tvf"^ was m^,, „,j «^
) Toronto, 3 P. l{. ]si.l!c P ^<"yo»'«'«OM o/"
A verdict amiiiaf ■„„ ;
«nli.p.idated .Iam^e\^Ven TltT "' r'"P'"'y ^or
agmnst, and wluclf tU comni''"^ ?°* '""^^'^
t" pay without entry of ^^?"^'^'''^ promised
attacfied until it becmne i fe"!!*' ?*"«»* bo
become debts. A o^/^V^'J'^ ^'»ch alone they
P- R- 282.-P. C.-RaSj ^"•i"'"'' V. J,ees,
.J be claim of a debtor f„
misrepresentations of Sii •'^'^'Tf'?"**'"" for
tent of land, is not lia&o f ?', '" ?'^ta"»ng a pa-
or se,,uestered, befUe the 1 ' T"^' ''"^^bed,
by decree or otherwise V^"*","* " <letennine(
«'- o/./,e City oTCf i^ClJ. g^.^'-^-
assignee had neglected to 1' ^t' ^h^rT the
precise and distit.ct notice ^fh*'" ^'"^"'•ec
''' ^-'««-t -S^^th^coffi'V^^^^^^^^^^
i
Hi'i
"j SI
s
I
If 1 ;
I 1 r
T^r^
Hi !'
2G7
ATTACHMENT OF DEBTS.
m
\m
garnishee from further prooociliiigs taken at the
instaiiee of the assignee in tlie name <if tlie judg-
ment debtor, /ii re Ji»\i-k, i.r juirli- Kclfi/, 1
V. r. 14!).
Under a submission between one H. and tlie
City of Toronto, it was awarded that the cor-
poration shouhl pay T{. ;£l,!t'25, as compensation
for land taken for the esplanade, and £825 for
damages sustained by the construction of it, to
be paid on or before tlie 28th of January, 1858,
on the title to the land taken being perfected in
tlie corporation. On the 2nd of January a notice
was served on the city cliamberlain that li. had
assigned to H. all the damages awarded, and
requiring the city to pay H. On the 9th an
order was made attacliing all <lebts due by the
city to II. to answer a judgment recovered
against him by one (}., and a summons for them
to pay ; and on the 14tli the garnishees were
ordered to pay (! . within ten days, or execution
to issue. The attaching order and suninions,
and the order to pay, were <luly served on the
chamberlain, but no notice of them was given
by him to the solicitor, or any memljer of tlic
corporation ; and on the 8th of May an execution
issued against the city, under which a levy was
made. They then applied for relief on the above
facts, and it was shewn that the land in (jucstion
had been mortgaged for a large sum to one B. , who
claimed to receive the sum awardeil : —Held,
that this, being upon a claim for unliciuidated
damages, could not be attached before judgment
obtained upon it : that the .part assigned to H.
could clearly not be garnished ; and that all
proceedings subsequent to the attaching oriler
must be set aside, on payment of costs by the
garnishees, the judgment crcilitor to be at liberty
to apply for a summons on them to ])ay him the
amount of his claim, under which all the par-
ties claiming might he liexrd. (I'm/iiiif v. Ji'ic.%
2 P. R. 282.— P. C— Kicliards.
N. had a contract with the corporation of
Guelph for work, defendants being his sureties.
After C(mipleting a portion he gave it up, an<l
assigned to defendants all his interest in the
contract, giving them power to linish the work
and receive payment, the moneys to be applied
to indemnify themselves and coniplote tlie work,
and the residue to bo paid to him. ^'. after-
wards left the country, aiul they tinislied the
job. The plaintitF, wh<! liad been N.'s foreman,
and continued with defendants, recovereu judg-
ment against them for liis services, and tlie
defendants having sued the corporation in N.'s
name on the contract, obt.iined an award against
them : — Held, (Burns, J., diss.) that tlie ()lain-
tiff might attach the moneys which defeiKlants,
as assignees of N. , were entitle to receive from
the eorporatiou. Alili'ii v. lioniiirr il itl., '1 V.
U. 330.— Q. B.
The attorney of the dcfemhint moveil to re-
scind an order to pay over, so far as it regarded
a judgment recovered by hi.s client against the
garnishee, on the ground that tlie judgment had
been assigned to iiiiii as secnrity for endori-e-
ments. 'Ihe summons was served (udy on the
judgment creilitor : — HeUI, tliat all parties must
have notice before the matter could be re-opened
on the ground of the assignment, linnk of
Upper Cnmii/a v. Wnlhvc, 2 P. It. 3.")2.- -( 'liamb,
— Bums.
To an action on the common c(mnts defend-
ants pleotled, that l>efore suit the plaintiff assign-
ed the claim to one fJ. : that one H. recover*
judgment against fJ., and obtained anonicfi.
attacii all debts owing by defendants to G t|
answci' said judgment, and this debt then IJ
came bound in defendants' hands to answer tJ
judgment. Plea held bad, the debt not ben
attachable as by law due to O. Arthur \ Ok,,
H at., 17 Q. B. 302. '
.1 udgment was recovered by B. & On. ^ _
defendant, against whom the plain tiflFafterwu
likewise recovered judgment. B. & Co.
and the plaintiff afterwards put a fi. fa. j™
defendant's goods into the hands of the shertl
who returned the plaintifif's writ nulla bal
Plaintiff then obtained an order for defendarl
examination, and very shortly after being serrif
with it, defendant assigned his book ilt'ck J
counts, and claims to B. & Co. A/ewdavasiJ
the plaintiff obtained the usual order to attj
debts due to defendant, but no summons i
shewn calling on the garnishees to pay. l\
Co. appIiiMi to set aside the order : — Held tJ
they iiad no right to intervene in the cause j
that they could not raise the question oft
validity of the assignment to them on suckJ
application. Iti/tiiK/cr v. McDouyall, 10 fJ
.195.
Where the debt is claimed by a third paftij
assignee, there is no power to direct an issufl
try the validity of the alleged asaigmnent f J
V. Fullarlon, 3 P. K. 19.— C. P.
On 30th July, 1859, the garnishee execnwl
mortgage for ,C200 to the judgment dcbtor.i
six annual instalments of €33 6a. Sd.
About a month after this, he paid i;,")Oo..
count of the mortgage. An attaching onlern
obtained before the first instalment felliiue.ii
this on 29th June, 18()0, was foUoweil k(
order that the garnishee should pay to plak
£34 lis. 8d. in the following manner -t|
1.3s. 4d. on 30th July, 1861, and .€17 IS...
on 30th July, 18()2. An application w,i3b
to set aside these orders upon a suggestion.
the mortgage had been assigned ; hut it apM
ing that trie a.s3igninent, if any, was nwileM
the attaching order had been served, thei
cation failed. Wortl'iujlon v. Pnlen it i\
L. J. 48.— c;. L. Chanib.— Draper.
\Vliere it was made to appear that \
sought to be attached was boiiA fide assigne^l
fore t'io is.^uc of the garnishee order, tlie
was, on the joint application of tiie jnila^
debtor and his a.'-isigiice, set aside. Cyj
Clnrk; 8 L. J. 107.— C. f.. Chamh. -Drapa, [
AVliere the judgment debtor, after mai
general assignment for the benefit of ore
surrendered a life policy to the gp.inislieMlj
value, "the proceeds to be placed at liisc
on the principal and interest," due on si
gage l)y him on real estate, and held kyl
garnishees, and the ganiishees aeceiited tls J
render, but on terms different to those pro
it was held, in the absence of an assentlj
judgment debtor to the change in theli
that tlie proceeds of the jiidicy enalii ill
attached as a debt due or accruing due fial
garnishees to the judgment debtor. lii*\
V. (Jorvh; 1 L. J. N. S. 7<3.— C. L Chi "
Uichards.
An order to pay over was inadeiiiwij
mons of which the judgment debtor Ui''
It appeared, oi
der, that the debt
I order, of which
Ifore the summons
lich they did not ap;
Hr the money undt
I rescinded, with co
nt creditor, who wa
nt. Feryunon v. Ua
j|t was alleged, but he
the jnclgnient del
I made the assignmer
(judgment creditor c
I debt duly assigned
able, and the atta
_e ; and wliere the
ire that this answer
^cation by tlie judgi
Ji allowed the costs ii
tcaiilai/ V. Jlumball et i
Ic judgment debtor,
.tors, dehvered to t
iray ties, and gave t
ir on the garnishees fe
I therefor. Subseqnt
khees had notice of
»d with the attacliing
i, that the order in I
tors operated as an af
ttem, although there v
Igamishees, they not hi
■it of notice to alter thei
^-/n.SP. I{. 231.-C1
iFinichv. Lcwh, 16 (,
4. Other C
_J«< dui' hi/ or to T,
lloan Company held a
■iith power of sale for c
Ner it on the 22n<l of
JoC, who paid themp
|tgage for the ))alaiiee.
Pipon the land to one 1
ligistpred after theirs, a
Jee, out nf the cash re^
I whole purcha.se monei
Imortgage declai-cd tlia'
lof the proceeds of any
fiere mentioned. Aju,
ling served his attachin
fember, sued the compai
iTpksi-Held, thathe
r Mcndants were trust
^atlaw for the money
"•% paid it over to "
Mtihed in so payin-r „,
Ht''lJ>-''moitgag.
PveforO.'s benefit,!?
W of suuli fi'aud. S\
Y'iljl'l'n-Vonuda, -2
If '^T-Jy " ^'''n'ishee
'■ %tl debt due by a J
,* tor. Bo;,,i V. Ly
l-lw.-Lhamlv~Dulton,
^
169
ATTACHMENT OF DEBTS.
270
It appeared, on motion to rescind snch
j',r that the debt had l)i!cn a»ij,'uud before
tooriler, of which the garnishees liad notice
Sore the summons was served oi them, to
Kichthey did not appear, an<l before tliey paid
mt the money under the order. The order
rescinded, with costs to })e paid l)y tlie judg-
mt creditor, who was also aware of tlie assign-
nt. Ftnjmon v. Carman, '16 Q. B. '20.
[t was alleged, but held not sufficiently proved,
± the jncfgment debtor was insolvent wlien
made the assignment ; and (Jnierc, whether
iadgmeut creditor could set that up. Ih.
ulebt duly assigned to another is not gar-
able and the attaching order will be set
I • and where the judgment creditor was
ire' that this answer would bo made to his
iication by the judgment debtor, the latter
I allowed the costs incident to such answer.
Kaiitoy V. RmnbaUet al.., 19 C. P. 284.
he judgment debtor, through his aub-con-
itore delivered to the garnishees certain
uay'ties, and gave the sub-contractors an
IT on tho garnishees for all moneys coming to
therefor. Subsequently, but before the
bhaes had notice of this order, they were
d with the attaching order in this c:ise : —
that the order in favour of the sub-con-
ors operated as an assignment of the fund
_jem although there was no notice of it to
[pmishees, they not having been led by the
H of notice to alter their position . Brown v.
|«j^,i, 5r. W. 231.— Chamb.— Dalton, t'. V.
J f,7 ,i(.7t V. LewU, 16 Q. B. 547, p. -05.
4. Other Ca-fcs.
Jbli (hii' hij or to Tru.it(c-i.\ — The Trust
[lioan Company held a mortgage from one
lith power of sale for cash or upon credit,
Wer it on the 22n<l of November sohl tho
Ko C, who paid them part in cash, and gave
pgage for the lialancc. There was a mort-
Ittpon the land to one D., executed before,
iiristpred after theirs, and they paid to D.'s
^e, out of the cash received, the surplus
jwhole purchase money above their claim.
jmortgago declared that they should stand
lot the proceeds of anj' sale in trust to apply
liere mentioned. A judgment creditor of
fkg served his attaching order on the 25th
Jfember, sued tiie company as garnishees for
iDrplus :— Held, that he could not recover ;
[ Defendants were trustees, and could not
1 at law for the moncj% even if they hail
nlly mid it over to 1). ; and, 2. They
istitled in so paying, notwithstanding the
mul that D.'s mortgage was fraudulently
livctorO.'s benefit, for defendants had no
dge of such fraud. Sntilli v. '/'ri(-<l and
tti.{ifl'jiiti'rV(iiai(hi, 22 (J. B. 525. See
Ix.'ilikkll, L J. 01, p. 271.
ll)t due hy a garnishee to a person who
■teciif it for the judgment debtor, cannot
plied to satisfy the judgment debt ; there
i a legal debt due by a legal debtor to a
editor. Boi/d v. //d/zmv*, 5 1'. 11. 15. -~
|-Hagai'ty, iSee, also, CaUnf, v. 'J'lairji,
1205. -Chumb. -Dalton, C. C. .L- I\
JJiht.'i (liir 1)1/ or t\> LWriitorn.]—A debt due to
a deceased defendant cannot be attached without
reviving the judgment against his personal repre-
sentatives, t'oninurriiit Bank v. Williamn, 5
li. d. 00. — C L. Chamb. — iJraper.
\n order upon executors to pay a simple con-
tract debt, pursuant to an attaching order, was
refused, on the groiuid that they might bo liable
on specialty delits, after sati8facti(m of which
they might liave no assets, and before satisfac-
tion of whicli tiiey (uight not to be ordered to
pay a simple contract del)t. The attaching order
was also at- the same time discharged. Ward v,
Vann', 10 L. J. 20!).— C. h. Chamb. —Draper.
'I'here is no power in the court or judge to order
or permit a suggestion to be entered of the death
of a garnishee, so as to legalize execution against
his executors or administrators. Ward v. \ ana;
3 P. R. 323. -Chandi.— Draper.
Tlie mere fact of a garnishee being an executor
is no ground for not ordering him to pay the
debt due by him as such executor to the judg-
ment creditor. Tiffann v. Bitlkn, 18 C. P. 91.
A debt due liy the garnishee to the judgment
debtor as executor is not garnishable. Macaulay
V. liiimbatl, 19 C. P. 284.
A debt due to an administrator as such cannot
1)0 attached to answer a debt due l)y him in his
private capacity. Bowman v. Bowman, 1 Ohy.
Uliamb. 172. — Spragge.
Money in tlie hands of an Aijcnl.] — May be at-
tached where the garnishee resides out of tho
jurisdiction. Brown v. Merrills, 3 L. J. 31.—
C. L. —Chamb. —Burns.
But not where the g.Trnisliee is a foreign cor-
poration, out of the jurisdiction, as the statute
only allows an agent to bo served with a writ of
summons fm- the purpose of commencing an
action. Lundi/ v. fJickmn, L. J. 92. — C. L.
Chamb. - Robinson ; Bank of British North
Ameriia v. [.aiiijhrci/, 2 L. J. N. S. 44. — C. L.
Chamb. — Morrison.
/\irtnir.ihi/> Dvhtx.] — Tliomas F. Park was a
menilier of two firms. Park & McLeod, and Park
k Park (Theodore, J.) I'ark & Park recovered
judgment against M. a judgment creditor of Park
& McLeo<l ; — Held, that Park & Park could not
on their judgment attach tho debt duo by M. to
I'ark & I'ark. McCormick v. Park et al., » C.
P. 330.
One A. I'. Mel), entered into a written con-
tract with defendants to execute certain work
for them, and verbally agreed to give one A.
McD. an interest in the contract. A McD.
did not sign the contract, and afterwards drew
money on it under the authority of A. P. McD.,
and apparently as his iigent. Upon a writ to
attach a sum of money due upon the contract, in
a suit by plaintiffs r. A. P. .Mel). : -Held, that
it was not a partnership debt, and therefore was
attachable iii'ainst A. P. McD. Bmcohi/et al. v.
Hamilton ]\ atcr Coninil^mom r.i, 9 C. P. 81.
/i''M/. ] — Wiero the debt was in respect of rent
of land mortgaged with a power of sale, and
power to receive rent, &c., and no rent was in
fact due, and ejectment luid been cimnncnced by
the mortgagee :- -Held, not to be a civsc for an
'"f*"i
f^.
\i
;,;Vi|
•I, ■ !■■
! t I
^1
ATTACHMENT OF DEBTS.
m-i
\i-''i pj
ft
u
attaching order. McLarm v. Sudworl/i, 4 L. J.
233.— C. L. Chamb.— Draper.
Rent to become due at a future time cannot
be attaclied. Commeirial Bank v^ Jaroin, 5 Ij.
J, 66.— C. L. Chamb.— Draper.
The mere registry of a judgment against a
husband's lands, before the passing of the 22
Vict c. 34 (Married Women s Protection Act)
does not of itself give a right to the judgment
creditor to garnish a debt due for rent of the
wife's land smce that act. Burton tt al, v. Kelly,
7 L. J. 20.— C. L. Chamb.— Richards.
Where an execution creditor has under the
statute of Anne paid rent demanded by a land-
lord upon an execution against the tenant upon
the premises of the former, and the sheriff
levies as well for the rent as the execution debt,
the sheriff becomes the debtor of the execution
creditor for both sums, and liable to him in an
action for money had and received, and so docs a
bailiff under the Division Courts Act ; and there-
fore the execution money in his hands might be
attached, to satisfy the demand of another exe-
cution claimant against the execution creditor.
Lockart v. Gray, 2 L. J. N. S. 163.— C. L.
Chamb. — A. Wilson.
Otlier Matters.^ — The court will not order an
attorney to pay over money which has been
attached in nis hands as the property of an
absconding debtor.
4 Vict.
Clark V. Stover, T. T. 3 &
Any debt that a defendant could sot off at
law against his creditor may be attached. Mc-
Naughton v. Webster, 6 L. J. 17.— C. L. Chamb.
— Draper.
The recovery of a verdict for a debt which might
have been attached before any action brought for
its recovery, will not make it less a subject of
attachment. McKay v. Tait, 11 C. V. 72.
Moneys paid by the owners of land sold for
taxes, as redemption moneys to the county trea-
surer, for the use of the purchasers, and banked
in the name of the county treasurer, cannot be
attached by a creditor of the county as a debt
due by the bank to the county. Wihon ct al. v.
Corjmraiioii of Huron and Bruce, 8 L. J. 13.5 ;
8. G. Ih. 136.— C. L. Chamb.— Draper.
The surplus money arising from sale of mort-
gaged premises in the hands of the mortgagee,
may be attached on a judgment against the
mortgagor. McKay v. Mitchell, 6 L. J. 61. —
C L. Chamb.— Draper.
Qutere, has not a judge a discretion, in the
case of an attachable debt, to decline under
special circumstances to make an order to pay
over the amount, where such an order wouhl be
inequitable, or tend to give one creditor a pre-
ference, after the making by the judgnient debtor
of a general assignment in favour of his creditors
without preference or priority. Lee et al. v.
Gorrk, 1 L. J. N. S. 76. — C. L. Chamb. —
Richarctis.
Where on a debt contracted in 1855, plaintiff
on 26th November, 1864, recovered judgment
against M. and others, he was held entitled to
attach the interest of moneys arising out of a
legacy deposited by the wife of M. in her own
name in the bank of the garnishees, she having
been married on the 28th of May, 1859. HJ.
v. Midr et al., 1 L. J. N. S. 275.— C. L CliMifl
—J. Wilson. I
Semble, that money in the hands of a Diviiiml
Court bailiff may be attached. Lockart v. (,'i
2 L. J. N. S. 163.— C. L. Chamb.— A
wii,;!
The sala'y of the physician of a muiiiciidl
corporatiorj, holding his appointment at thai
will, at r.n annual salary, payable (luartethl
cannot be attached. Shanly v. Moore, 3 P il
223.
Money made bjr a sheriff under an execgti(|
is attachable in his hands for the debt of J
execution creditor. In re Smart v. Miller, Jfl
R. 385.— Chamb.— A. Wilson.
A debt owing to two caimot be attached t
satisfy a claim against one of them only. H j
Seiflble, that an equity of redemption i
mortgaged premises cannot be sold upon a«.
nisliitient execution sued out against anug
ga^^or, in respect of the mortgage debt, at ti
suit of a creditor of the mortgagee.
man v. McCarfy, 20 C. P. 42.
Money was sent by a father to his son,!!
judgment debtor, as a gift, through a bi^
Before any communication by the Lank toll
judgment debtor, the execution creditor i
tained an attaching order and summons onii
bank to pay over. The order was issued on 4
17th of August, thirteen days before the L
agency at the place where the debtor resideJn
advised of the deposit : — Held, that the i
could not be attached. Semble, that the fil
might revoke the gift, and therefore it vai g
a debt. Caisne v. Tharp, 5 P. R. 265.-C
— Dalton, a a ,(; P.
A testator having bequeathed the sni
£500 i)er annum, payable out of the rent^ij
come, and profits of his real and jxit
estates indiscriminately for the support o'
widow and family, (the widow having be
sole executrix) her separate creditors
held entitled to have her share of the i
ity severed and attached to satisfy their dd
subject, however, to the prior claims ofi
estate against her as executrix, tn be
for breaches of trust and the like ; and-
that where there is no form of legal pn
or process whereby such a fund can be r
this court has power, under 22 Vict. c. 22,»,l
to apply a remedy, as in this case by eqni
attachment. Bank of British North Anmi
Matthtws, 8 Chy. 486. But see next caie,i
see Blake v. Jarvis, 17 Chy. 203.
A bill was Hied by judgment creditors il
ing that their debtor was devisee and eiecs
of her husband ; that she was entitled tut
annuity under his will, and was a credititl
his estate for advances she had made tor
his debts, and claiming that these deblii
claims should be ascertained, tlie csttteij
ministered, aiul sufficient land of the I
sold to pay what the estate owed, or so ■
of it as would cover the judgment M
Held, that the pbintiff was not entiUl
relief. Bank of Britisli North Amelia I
Matthews, 8 C!hy. 486, overruled, fc'iWi
Jarvix, 16 Chy. 265, in appeal.
A judgment creditor cannot attuhorj
by a suit in equity a debt for which heliiij
'i:'
ATTACHMENT OF DEBTS.
274
fctained an attaching order at law. But, sem-
L after obtaining and serving such an order,
fa remedy in equity is needed for tlie realiza-
'. of the debt so attached, the creditor is
-♦ftW to file a bill for the purpose. Blnkr v.
";;ri«Chy.295il7Chy.201.
Where money, the proceeds of land belonging
• some of the defendants, had been ordered to
I paid into court, to meet a judgment held by
Jntiff against one of these defendants, and
decree directed that the iJaintiff should pay
the other defendants their costs of suit : —
lid that these defendants were entitled to a
li'ghee order against the money to be paid
J court. Orant v. Kennedi/, 2 Chy. Chamb.
I.— Taylor, Secretari/.
La sum of money directed by a decree or order
kbe paid, is a debt which is attachable under
L S U. C. c. 24, 8. 19. Cotton v. VaimittaH, 6
I jj[ 96._Chy. (Jhamb. — Holmested, Kef free,
\ JII. Examination of Judgment Debtor.
1. Affidavit fur Order.
Ifhe affidavit should show that an execution
J been issued and acted upon. Irinne v. Mer-
E- 3 L J. 49.— C. L. Chamb. — llichards.
lAnd it should specify what efiForts have been
ie to collect the judgment, and show that it
not be recovered m the ordinary way. Hinilh
pill, 3 L J. 134.— C. L. Chamb.— Richards.
2. Other Cases.
le proceedings for the oral examination of a
Tneiit debtor, under sec. )9? of C. L. P.
J, 1836, (C. S. U. C. c. 22, i. 287) shor.id be
' summons and order ; not by order in the
J instance. Carter v. Carey et u'., 3 L. J. 49.
, L. Chamb. — Richards.
i summons having been granted under that
ion, calling upon a corporation to shew cause
the president or secretary should not be
ined oa to the debts due to the company,
der was refused : 1. Because it is doubtful
, her that clause applies to corporations. 2.
kuse the summons should have been directed
^e officers mentioned, and not to the com-
Cameron v. The Brantford Gas Co. 2
. 58.— Chamb. — Burns.
pe court will order the examination of the
tadant to ascertain what debts are due to
L under 22 Vict. c. 33, s. 12, with a view of
iiahing such debts. Bostwkk v. Shortis, 1
I Chamb. 69.— Blake.
IV. Practice.
1. Affidai'it for Order to Attach.
ke affidavit required by l(it4th sec. C L. P.
1 1856, will not be dispensed with ; and must
wtive and explicit. Under certain circum-
les, however, an affidavit founded on belief
! sufficient. Cataraqui Road Co. v. Dunn,
IJ.27.-C. L Chamb.— Hagarty. But see
JMMwJv. DeBergue, 3 L. .1. 28.— C. L. Chamb.
iLean.
i if sufficient grounds be shewn for such
, it will be sufficient. Joties v. DeBergue
^3LJ.31.-C. L. Chamb.— Bums.
18
Qutero, whether an affidavit of informatiou
and belief is sufficient. Semble, an ex parte
order will not at all events be granted on it,
when no application for an oral examination
of the defendant has been made. McLaren et
al. v. Sudworfh etal.,4lj. J. 233.— C. L. Chamb.
— Draper.
An order will be granted ex parte, upon affi-
davit that on an oral examination of the debtor,
he swore that the garnishee was indebted to him.
Marpherson v. Ken; 3 L. J. 49. — C. L. Chamb.
— Richards.
An order to attach will be granted, tho;:^h
the amount be not stated ; but it must be stated
in a summons to pay over. MeUlrum v. TuUoch,
3 L. J. 184.— 0. L. Chamb.— Richards; but see
Bank of British North America v. Laughrey, 2
L. J. N. S. 44.— C. L. Chamb.— MorriBon.
The judge should require the nature of the
indebtedness to be fully stated ; but where he
granted an order without this the court refused
to set the proceedings aside. Tiffany v. Bullen,
18 0. P. 91.
An order founded on the affidavit of "the
agent for the above defendant," without any
affidavit by the judgment creditor or his attor-
ney, is irregular ; and such order was set aside,
but, the point being new, without coats.
Semble, that had it been affirmatively shewn
that the deponent was in fact the attomev of
the judgment creditor, though not so described
in the affidavit, the statute would have been
complied with. lb.
An order to attach i^hould not be made with>
out an affidant either of the plaintiff or his
attorney, stating the indebtedness of the gar-
nishee. Boyd V. Haynes, 5 P. R. 15. — Chamb.
— Hagarty.
2. Coats.
A judgment creditor was not allowed the coats
of a garmshee application, either against the judg-
ment debtor or the garnishee. Bank of Montreal
V. Yarrington, 3 L J. 185. — C. L. Chamb. —
Robinson.
But it is now the practice at law to grant such
costs where there is a sufficient fund out of
which to pay them, and this practice was con-
curred in m Chancery, reversing Evans v. Evans,
1 Chy. Chamb. 248. Evans v. Evans, 1 Chy.
Chamb. 303.— Full Court.
3. Other Cases.
Where the garnishee (a deputy sheriff) after
ten months applied to set aside an order to
pay, upon the ground that when the garnishing
order was made there was no such debt, and that
he, the garnishee, was ignorant of the nature
and effect of the proceedings taken against
him, the application was refused. Oordon v.
Bonier, 6 L. J. 112.— C. L. Ch^b.— McLean.
Held, that the judgment debtor is admissible
as a witness on behalf of the plaintiff in an
action under a garnishee order. Hutcheson v.
Allen, 9 L. J. 24. — Nisi Friua — Draper.
An attaching order had been served by leav-
ing a copy at the store and residence of the
garnishee. Service of a summons to pay over
' 4
i:-i;«
|N
il
l-EF
l! hir'>''
I
It;?':' ''
Ih
'Ml
U \
iv ;! i
275
ATTACHMENT OF DEBTS.
was accepted for him liy a practising attorney, ami
this summons, witli sucli acceptance eiKlorsed,
was afterwards served in tlie same way as tlie
order. On the return of it, another attorney
appeared for the garnislice, and c))>jccted that
the acceptance wiw without autiiority, and the
service insuthcient : - Held, tliat personal service
of the swnmons and order was not indispensahle.
The service if moveil against would li:ive been
insuthcient, as it was not shewn that personal
jjervige could not have been etfected, or that the
papers had come to the knowledge of the gar-
nishee ; but held, also, that no such application
having been made, the acceptance should be lichl
sufhcient, and that any defect in the service of
the attaching order was thus cured ;- Held,
also, that the appearance of tlie garnishee by
another attorney iluly authorized was a waiver
of any objection to the service. )('((/•'/ v. Vrnirc,
3 P. 11. 130.— Chand). -A. \Vil«on.
Adam Wilson, J., adhered to the above deci-
sion as to the service of the attaching order, and
held that the new attidavits set out rather tended
to sustain such service than otherwise. .V. (!. 3
P. R. 210.
' A summons to pay over having been opposed
the judge took time to consider, and before the
. order was granted the garnishee died. ( )n motion
• to rescind the order : — Held, that the delay
being that of the judge the order was not void,
biit might be amended and dated as of the day
of argument. Qmere, whether in strictness all
orders should not be thus dated. .S'. ('. 3 T*. H.
210.— Chamb.- A. Wilson.
Quoere, has not a judge a discretion, in the case
of an attachable debt, to decline under special
circumstances to make an order to pay over the
amount where such an order would be ineipiita-
ble, or tend to give one creditor a preference
after the making by the judgment del)tor of a
general assignment in favourof his creditors with-
out preference or priority. Ln' <t al. v. (iorrir,
1 L. J. N. 8. 7(>.— (A L. Chand). -Kichardtf.
23 Vict. c. 33, does not extend to the service
of attaching orders, but only applies to the
service of process, *c. /?anl: af lirilUh Xorth
America v. Jj(ui(jlmij, 2 f.,. .1. S'. S. 44. ('. L.
(jhamb. — Morrison.
Notice of an application to garnish .should
always be given to the judgment debtor ; but, —
Quiere, whether it can be imposed as a condition
on the judgment creditor, the statute not re<juir-
ing it. Ftnjmon v. Curmiui, 2(i l^. B. 2().
Where an application is made to compel a
garnishee to pay over debts duo by iiim to the
debtor, which have been garnished, notice must
be served on such garnislice. In r<- I'linjl'-ili, 1
Chy. Chamb. 197.- -VanKoughuLt.
A garnishee order granted by the court on an
application in chambers is regular. JMicr/sou v.
Grant, 3 Chy. Chamb. 331. - Strong,
Where an application for the discharge of an
attaching order was made nominally by a plain-
tiflF, against whom the iittaching order had been
granted, but really by and for the benefit of his
solicitor who had a lien on the debt attached,
leave was given to amend the proceedings by
making the* solicitor the applicant, and the order
was discharged, but without costs. Cotton v.
VansUtart, 6 V. E. !»(}.— Chy. Chamb.— Holme-
sted, Referee,
V. DiKKCTiNd Issue to he TiirED.
\\\ interpleader will not be granted to tivtl I
validity of an attaching order, or to di'ttrniiii I
amount due. MrSamjIilun v. \Vtl,^i,,y^ n j r
.J. 17. -C. \,, Chamb. -Draper.
Where the debt is claimed by a tliird partijil
assignee, there is no power to direct an issut • I
try tlie validity of the alleged assigniui'iit i{,\
V. fiilliirlim, HI'. !!. 1<.>.- C. I'.
The executor of the garnishee havinij on i||
davit denied the debt, and imputed coJlusi^l
between the judgment creditor and fleljiorl
which was not denied, the attaching order iril
rescinilcd, and an issue directed, on iiayincnt J
costs. H'nn/ \. |V(/(rc, 3 P. H. 210 ('biiil,,
A. Wilson.
A suit was pending between the juilgnai
debtor and the garnishees as to the i.l,aini smj
to be attached : — Quaere, as to the proiirktvd
directing an issue, and as to the proper inrKlj]
procedure. Bank af Toronto v. litirlun, 4 J
|{. r)6. — Chamb. — Hagarty.
A judge of the court will, when it appf
proper, instead of directing an issue, liimseu.
a question of fact arising on application kii
him in chambers. Jiol/ertxoii v. d'co/i/, ,3 (i]
Chamb. 331. —Strong.
VI. PllIOEITV OF JrnftMENT Crkditorj.
Although the plaintiff's judgment lie n\»
ijueiit to others registered as agiiiiLst thel
sold under a mortgage, still if he tiist att,
the surplus of proceeds of sale, he is entitldj
tlie exclusion of the prior judgment ereJiuj
.UcKa;/ v. Milrhrll, (I L. J. (il.- C. L. ('hamii]
Draper.
There is no priority in respect to delits Jitl
a judgment debtor, in favour of any jmlju
creditor. Ih.
Several judgment creditors proocuiling la
the same garnishee, are entitled in tliedrilal
which their attaching orders are served.!
ratably. Tato v. ('nrji'irniion of TiiMi\l\
H. 1.SI.-C'. 1'.
\'IT. Oi'Kit.vnoN AM) Kfi r.(T iif.
(>)u;i're, what effect has an attachin;,' unlal
the party's right to set oil'. Mf}\<:wjUii\
Weh^lir, () L. J. 17.— C. L. (Jliainl).-Dra[«
An attorney's lien for costs as ktwefflj
and his client, the judgment debtor, «f
be alloweil to stand in the way "f anatt
nieiit. Rv'/ina v. Bcn-wn, 2 1*. M :t.'iO.-(|J
B(uik of Upjiir CfiiKidn v. W'ltllnrr^ Ik"
Chamb. — Burns.
Upon the application of a solicitor, hari
lien in i-espect to a debt attached, the atti^
order will be discharged as against him ; bi
party against whom such an order has b«eiij
IS not entitled to its discharge tm the gr™''
the existence of the lien, in favourof his»
Cotton V. Vnnnittnrt, « P. li. 91). -Chy.
— Holmested, Rifcrce.
Declaration for work and materiab.
plea set up several attachment ordereobi
by judgment creditors of the plaintiff, t
n
I to «iic that it wa
Lboiild he at liberty
nt8;anii that the ol
defendant and ])Iaint
Thi' ('(ir/juriilii)n «,
V/II. Pavme
A garnishee! is not i
he judgment creditor
nlcr, without an ordi
mil heing served w
rthwitli j(,iy the nioi
thd; S L ,1. 107. —C
[It is no dofenee to
jaeliing orders Imve )
pt for the claim, or th:
ivit ovur. Thero nu
Uers, or execution lev
liriirkrilk iiiiil Ottiu
See, contra, Curr
f. L. C'hanih. Burns
,6 1. .). 17.- -C. L. (
IPefendant having a jn
ihers, obtained aii^ordei
Thee.s, to pay over, afte
Jm they might have.
lithis order .'*!17l, by e
Jin, the i)Iainti/l' alone
I'l estate. It was aftei
I order had been Un-
-refore rescinded, excepi
Bchthegarnisliees' adni
Tered, so that nothiiiL'
Jn paid .--Held, that
(over the 8171 from dei
1 received : -Held, also
jnient having been m;
intitfs hnn, eould not
JBe from recovering, as t
liave been the money of
■plamtiff's partners had
mnchan, 23 Q. B. 4'J2.
_» award for an amount,
ing been made in fiivoui
', ''■'■™' '^y consent, ai
'' to l)e paid to the .<^
wed to receive such costs
jsukeouently obtained
fr which the amount aw
Ppaid over to such third
^vor, of the solicitor's
prthese circumstances a
Jeedings to enforce pavme
|«ward, at tlie instanc
% were payable
JkLmi V. Beatlu,
iiKouglmet.
W«hioh liatl been mor
Men by the township ,
Pie compensation havin
pani the corporation paL
"wrot the mortifaMr bv
Htj that his mortgag
fj the laud with noti
I rtgagecw.^ entitled to
Ithe coloration with ,
1 oj }ork, 16 cj,y .,
I
11 n.'
1377
ATTACHMENT OF DEBTS.
278
'^^k, to one timt it wiw dircctod tliat tliu cioditor
-Wf ' 1,1 1,0 at lilwrty to proceed apiiist defend
^Ctij' »)>'! that the othew were duly served U]h,ii
^Kfei'icliuit and plaiiititl' : - f£eld, bad. M<f.'iiiii'i<
^m^ ThiCiirporiilioii of Vork-rill', 21 (.1. B. Ili3.
VIll. rvYMENl' IIV (lAltNISHEK.
iiinhie is not diacliargud by payment to
he iuilgment creditor merely upon the attaehinu
„ler without an order to i)ay. Hut ho in, if,
on'being served with a sunnnons to )>ay, h
- ■ ■'• "• ('l(ir,{' V
Efliwith nav the money into court. ('/(//•
K^y L .1 107."('. i'- <'hamb. -Draper
It is 110 defence to an action for a debt that
ttaeliing orders have been served upcui defend-
ht for the claim, or that he has l)een ordered to
r it over. There must be payment on such
Aprs or execution levied on defendant. Si/kn
Hi^'drille. <tii</ Otf'ura l{. W. C,,., L'l> (,). H.
See, contra, t'ltrr v. /ini/rriif'l, 4 I,. ■). •_'()<».
L. C'hainb. Hums ; MrS'iiiiii/itui; y. MV/i-
u'j^ ,1^ 17. -C I'. Chand).— Draper.
iTefemliint having a judgment against M. and
Hers, ohtained an order on ( '. and others, gar-
Eieeii, to pay over, after deductini' any contra
um they might have. 'J'he defendant received
ithis order sJlTl, by check of the plaintill"a
B the plaintill' alone being the assignee of
t'sest.itc. It was afterwards discovered that
I onler had been for too much, anil it was
^fore rescinded, except as to the pnjper sum,
Uch the garnishees' admitted set-off more than
lered, so that nothing in fact should have
^ pjid :_Held, that the plaintiff might
lover the 8171 from defendant as money hail
received : -Held, also, that the fact of the
nient having beeTi made by tlie check of
jitiff's rirni, could not prevent the plaintiff
je from recovering, as the money was proved
Rave been the money of C. 'a estate, in which
plaintiff's partners had no interest. SfuswiiK
'irachan, 23 Q. B. 492.
1 award for an amount, together "with costs,
fcng been made in favour of a party, the costs
taxed by consent, and the iimount pro-
to be paid to the solicitor of the party
ired to receive such costs. A garnishee order
subsequently obtained bv a third party,
jr whicn the amount awarded and the costs
i paid over to such third party, with notice,
Bver, of the solicitor's lien for the costs.
W these circumstances a motion made to stay
ledings to enforce payment of the costs under
lawaril, at the instance of the solicitor to
they were payable, was refused with
ikLcm V. Beattij, I C'hy. Chand). 138.
oKouglmct.
nd which hail been mortgaged by the owner
" ken by the township council for a road,
Ithe compensation having been ascertained
|rard, the corporation paid the anu)unt to a
»r of the mortgagor, by whom it had been
bd;— Held, that the mortgagee had the
[right ; that his mortgage being a registered
pge, the corporation must be taken to have
ired the laud with notice of it ; and that
lortgagce was entitled to recover the amount
[the corporation with costs. JJunlop v.
|tf 0/ York, 16 Chy. 216. See Frencli v.
Liicii, l(i Q. B. .")47, p. 2(j.") : Smilhy. TritM and
Loan CuiniMiiij, 22 (). B. 525, p. 269.
See liki-iii'i V. Maihleii, II C. V. 195, infra.
l.V. UKUirs OK Ctahmshek.
Where there lias been a previous understand-
ing tiiat the garnishee shouhl have a certain
period of credit, ho will not bo ordered to pay
until such period expires. ffariHiKi v. Barratt,
3 L. .1. 31. ('. L. Chand). Richards.
Action on a mortgage for JC309. Plea, non
est factum. Second count, on a judgment in
i). B. for 1)78. Third count, on a judgmont in
this court for tl28. To the last two counts
the defendant pleaded, on eijuitable grounds,
that the judgments were obtained on confessions
taken by plaintiff from defendant, while the
plaintiff was defendant's attorney, by fraud, and
given without consideration, and by undue in-
lluence ; and — after setting out two judgments
in the county court, amounting to £99, reco''c»<5d
against the ]ilaintilV, by CI. and M. respecUvely,
that*!, and M. Iiad each obtained an oi'der to
att;ichall debts dui^ to this plaintiff from defend-
ant to satisfy said judgment, and had issued ad.
fa. lands on which the sheriff had taken in execu-
tion lanils of ilofenilant, more than enough to
satisfy the said judgments recovered by them
respectively ; and that said judgments were in
full force anil unsatisfied, — the plea alleged that
the indebtedness on the judgments in the two
counts alleged (if any) due to the plaintiff had
been attached to satisfy the other judgments.
On demurrer held bad, 1. Because pleaded
in bar of the plaintitt"s whole cause of action
on the second and third counts, whereas it
only shewed a partial answer, if good as to
that. 2. That it diil not shew any order requir-
ing the garnishee to pay the judgment eredjtors.
3. For all that appeared on the pleas, the plain-
titl's in the two attachments might issue execution
and obtain satisfaction of their judgments against
the present plaintiff,, before defendant's lands
could be sold under the executions. Bkvihs'y.
Muihlen, 1 1 C. P. 195.
X. Miscellaneous Gases.
The garnishee was indebted to the Buffalo,
Brantford, andCodcrich H.W.Co., (the judgment
de})tors), on two negotiable bills accepted by him
and not yet due, and they, in order to induce R. ,
a creditor, to release a chattel mortgage which
he held against them, had promised to pay him
out of the proceeds of these bills ; there were also
other claims by some of the directors of the com-
pany, which were to be paid in the same way.
The judgmont creditors obtained a summons on
the garnishee to pay their claims, which was less
than the amount due on the bills, and M.,
another creditor, subsequently obtained an order
to attach the balance, but no summons had
issued u])on it. With the assent of the judgment
creditors, the judgment debtors, and the garni-
shee, M. bein'4 no party to the arrangement, tho
acceptances were handed into court, and after-
wards delivered to Z. on his paying in the money.
These facts were stated on the return of the
summons obtained by the judgment creditors,
and the judge in chambers was asked to deter-
mine what should be done with the surplus after
'i¥.
f,, ...IIP I "m
<i! I
m\
279
ATTACHMENT OF THE PERSON.
pajring the judgment creditors. The learned
Chief Justice reluscd to decide this, as he had
no power to determine summarily between tliu
claimants ; and held, that the monuv havinu
been paid in without any authority, he could
only order the surplus to be returned to the
garnishee. Semble, however, that M., who had
obtained an attachment order, should be pre-
ferred to R. and the directors. 8urablc, .ilso,
that the best course would have been for Z. to
pay the claim of the judgment creditors, getting
it endorsed upon the bills, and then the sum due
toM., when he had obtained an order for pay-
ment. Mdlish el al, v. The Buffalo, Bruntjitrd,
ondQoderkhR. W. Co., 2 P. K. 171.— Chamb.-
Robinson.
Garnishee proceedings — Neglect of attorneys
in conduct of— Action for — Priority of orders —
Service of — C. L. P. Act, s. 289, et seq. Sweet-
namv. Lemon et al, 13 0. P. 534.
Held, that a creditor has a right under
writ of sequestration, to compel payment by a
third party of a debt which he owes to defend-
ant against whose estate the writ issues. Mr-
Dowellv. McDomll, 1 Chy. Chamb. 140.— Van-
Koughnet.
Until the sequestrator, or the party claiming
under the writ, take steps to obtain payment of
the money, the chose in action is not bound bv
reason of the writ being in the sheriff's hancl.
Ih.
A judgment creditor had attached a debt due
to the defendant, as a security for which land
had been conveyed to the defendant, and a suit
for redemption was pending. The bill in that
suit was afterwards dismissed for default in pay-
ingthe money in pursuance of the report therein :
—Held, that the property having thereby in
effect become substituted for the debt, the creili-
tor was entitled to a sale thereof in this court,
and payment of the proceeds towards satisfaction
of the judgment. Bank of Elgin v. Hutchinson,
13 Chy. 69.
ATTACHMENT OP THE GOODS OF
DEBTORS.
I. Against Absconding Debtor — -SVe Au-
scoNDiNG Debtor.
II. In Bankruptcy— See Bankruitcv and
Insolvency.
III. From Division Court — <S'ee Divi.sion
Court.
IV. Maliciously Issuing — See Maliciou.s
Arrest, Prosecution, and Other
Proceedings.
Iirt: ■•'
ATTACHMENT OF THE PERSON.
, When Granted.
1. For Non-payment of Costs.
(a) Generally, 280.
(b) In Ejectment— See Ejectment.
2. For Contempt of Process or Orders, 281.
3. For non-payment of Money, 282.
4. For non-irroiliictiun of Docvmtnu ,\
Accounts, 282.
5. Other Cases, 284.
G. Breach of fnj unction —See 1njl'X(7((,J
7. Disobedience of Mandamus — See Mivl
DAMU.S.
8. Aijainst Attorneys— See Attor.nev ami
Solicitor.
9. Aijalnst Judgment Debtors.
(a) Jtor not Appearina to be. A/am*J
under C. S. U. C. c. J.}, ,,^;,l
See Bankruitcy a.nd hjoj
VENCY.
(b) For not Appearing to be ExmuiiA
under Division Courts Act C > f
U. C. c. 19, 8. 160-SeeBM
KUPTCY AND iNSOLVRNfy,
10. Against Witnesses — See Evidence.
11. Against Memliers of Parliamnt-iA
Parliament.
12. Against Sheriff— See Sheriff.
13. For Non-iierformance of AwanU-iA
Arbitration and Award.
II. Practice on Moving for.
1. Service of Rule or Notice,^'2M.
2. Other Cases, 285.
III. Proceedings ox.
1. Setting Aside, or Motion fur Di«rkfji
(a) For Non-payment of CoMk, X \
(b) Purging Contempt, 287.
(c) 0(/t«r Cases, 287.
IV. Miscellaneous Cases, 289.
V^. Against Defendant in Ejectment m|
Resuming Posse.ssion— Se« EjEmwl
VI. Maliciously Is.suing Attacii.me.nt -
Malicious Arrest, &c.
he time of the dema
be execution of tlie
MeSherri/, « O. S.
Bat it was held (
tarry v. Butter, K.
«kn, T. T. 2 & 3.
. 3 Vict. ; Brewster
Where a demand w.
■(I part paid: -Held,
ofor the residue with
f, Anyer, E. T. 3 Vict
\WeTG a rule direc
rty in a cause, a den
Jomey. Kimball v.
pp. C— Macau lay.
I Before attachincr an o
I Will. IV. c. 1, s 55, I
I order to pay must I.
klc. /;» re McLachla
I To enforce payment r
"pen the petition of tl
nse depending, the pi
'id order of V. C. Jam
na and attachment, tJi
8 fit law. McOillv.
I An attachment to coi
] be granted merely f<
'i of the contempt, i
nb. 210.— Spragge.
I The court will not hold
■ contempt for not obeyii
•t-payment of the costs
■pt. PheriU V. Pherili
•Taylor, Secretary.
I. When Granted.
1. For Non-payment of Co»U.
(a) Qenerally,
Where the judgment of a Court of L
had been removed into this court by cert..
and set aside upon the application of the del
ant, without any interference on the part of i
plaintiff, the court refused to grant an atti,
ment against him for non-payment of coit]
removing the proceedings. Cramer \r. U
Tay. 36.
On affidavit of a rule for payment of o
served and demanded, a rule absolute k\
attachment was granted. Roioscllv.Haitt
Dra. 90.
An order of nisi prius must be ma(leanili|
court before attaching. Plumb v. Milkii
S. 484.
Where a judge's order for non-payment ol«
has been made a rule of court, adcmanilf
be made after it has become a rnle of c
Culver V. McDonell, T. T. 7 WiU, IV.
Where the demand has been m&de i
irawer of attorney, it need not be ihein t
2. For Contempt of /
li party becoming banl
*bemB arrested for contei
ier of this court. Brei
1 attachment for not
I not be cranted again
*e unless he is acting co
(of the Niagara Distri
Ml order to commit to '
[naing to be examined i
P, 18 to be looked upon
mpt, not as a commi
Wfl V. Dickson. 19 Q
I moving to commit fo
fenng possession of mc
"• 32 of 1853. it must
Mion was demanded.
'• Chamb. la-Esten.
^ order was made forth
™. by the father to t
,ation to commit the fat
mm this order, it ai
fee from home the chi
fa from his house, and (
PMhesonsaj^ngtha
P« her's knowledge or
J fcok no steps to brine
■^Jnotofrertodosof
m
ATTACHMENT OP THE PERSON.
282
, time of the ilemand a copy of tho atJiilavit of
i,l pxccution of tlie power wa» served Sanders
Ti.,t it was held otherwise iii eurli( r uanoa.
f^^i,, I Butler, E. T. '2 Vict. ; Morrison v.
■ihn T. T. '2 & 3. Vict. ; Qim v. J/olme:<, h.
^3 Viit. ; Bmcoter v. McEwen, K. 'I'. 3 Viot.
Where a ilemaiul was made on the allocatur,
doart paid : -Held, that no attachment could
"Ifor the residue witli< mt a new demand. Ili/utt.
^4»!/«»•, K. T. 3 Vict.
Where a rule directs costs to be paid to a
V in a cause, a dem»nd may bo made by his
-P. C— Macaulay.
i Before attaching an over-holding tenant, under
iwill IV c 1, 8. 55, for non-payment of costs,
. order to pay must be served and a demand
In re McLachlaii, 3 Q. B. 331.
[to enforce payment of solicitor's costs, taxed
m the petition of the client, entitled in a
■>e depending, the proper course, under the
M order of V. C. Jameson s orders, is by sut)-
, and attachment, though such costs include
iBtlaw. McOillv. Sexton, 1 Chy. 311.
I An attachment to commit for contempt will
t be granted merely for non-payment of the
Its of the contempt. Dkkmn v. Cook, 1 Chy.
nb. 210.— Spragge.
I The court will not hold a party, who has been
\ contempt for not obeying an order, in gaol for
B-rnvment of the costs occasioned by his con-
Lt PheriU v. PheriU, 2 Chy. Chamb. 444.
mylor, Secretary.
2. For Contempt of Procesn or Orderx.
\k i)arty becoming bankrupt will not prevent
•being arrested for contempt in not obeying an
ler of this court. Brewer v. Rone, 2 U. S. 6.
J attachment for not obeyintj a certiorari,
I not be granted against a district county
oe unless he is acting contumaciously. In re.
Xtojth. Niagara District Court, 3 C). S. 437.
_ Older to commit to close custody for not
nding to be examined pursuant to a judge's
ff, is to be looked ujwn as a commitment for
tempt) not as a commitment in execution.
idfTMrt V. Dickion. 19 Q. B. 592.
moving to commit for a contempt in not
jering possession of mortgage premises, in
lience to an order made in pursuance of
32 of 1853, it must be shewn that the
ision was demanded. Neviexx v. Labadie,
y. Chamb. 13.— Esten.
I order was made for the delivery of infant
ren by the father to the mother. On an
»tion to commit the father for ccmtempt in
JBbeying this order, it appeared that in his
» from home the children had been re-
1 from his house, and taken to the United
I by his son, aced fifteen. They denied
bion, the son st^ng that he acted without
(father's knowledge or consent ; but the
rtook no steps to bring the children hack,
Idid not offer to do ao, if timo were given
him. To the demand made for the children,
the fatiior replied that they were not in his
custody : -Held, tlint he was not excused from
oi>eying the order, and was in cimtempt. Neijina
V. Alkn, 5 r. 11. 453.— Chamb.- -Morrison.
3. For non-piiiiment of Monrij.
A defeiulant in attachment for contempt for
not l)ayini' over inoucv pursuant to a nilc of court,
may be admitted to the limits, after beinjj order-
ed to be committed upon his answers to interro-
gatyries. Hex v. A'i(/(/, 4 O. 8. 415.
The court will not detain a person in gaol
merely for the non-payment of money ; but in
order to punish any one guilty of a contempt of
court, it may imprison him for a stated period,
allowing liiiu to be discharged if ho pay the costs
of his contempt before the expiration of such
period. Ifitrrin v. Myeri>, 1 Chy. Chamb. 229.
— VaiiKoughnct.
The court will not commit for disolieying a
decree, where the disobedience is in effect the
non-payment of money, .\fali'
Chy. Chamb. 359 ; .V. ('. 2 Chy,
Spragge.
V. Bouchier, 1
Chamb. 254.—
4. For non-producli(^H of Documents or Accounts.
Where a party neglects to comply with the
terms of an order for the production of books
and papers, the proper mode of proceeding is to
serve personally a notice of motion to commit.
Paterson v. Bowes, 4 Chy. 44.
A party in contempt to an attachment for not
bringing accounts into the master's office on a
reference, afterwards filed the same, but neglected
to pay the costs of his contempt, and an ex parte
order to remove the accounts so brought in from
the files, in order to proceed against him for the
contempt, was granted. Corbetf, v. Meyers, 1
Chy. Chamb. 26. — Spragge.
A married woman, defendant, living with her
husbtvnd, was ordered to bring certain accounts,
as administratrix, into the master's office, and
having disobeyed the order an application to
commit her for contempt was refused, the general
rule being that the husband must answer for the
wife's default, unless he shews some ground of
exemption. Mauqhany. Wilkes, 1 Chy. Chamb.
91.— Spragge.
A married woman, a defendant, living with
her husband, was ordered, as administratrix of
a former husband, to bring certain accounts into
the Master's office, in a suit in which her hus-
band was joined as a co-defendant. On an ap-
plication to commit her for disobedience of tne
order, it was contended that the rule laid down
in Maughan v. W^ilkes, 1 Chy. Chamb. 91, that
the husDand must answer for his wife's defanlt
unless he shewed some ground of exemption, was
in efifect abrogated by 35 Vict. c. 16, O., which
renders married women liable for their separate
engagements in certain oases : — Held, that sec.
8 of that act was not applicable in the present
case, where the marriage took place before the
passing of the act, and that the other sections
did not affect the rule. It was also contended
that the reason for the rule in this instance was
wanting, as it was shown that the married wo-
man was a woman of great force of character,
M
'■■'. ME
: t r
■ ill
'111- ''-'^
■ \V. :■■>• I !1U
. 1-
"r t
'MmSZ
fini
i ji
283
ATTACHMENT OF THE F^KUSON.
•M
and not in fact unilur thHuuiitntlol' her liiMliiU'il:
Hold, that tliu himliaud niiiHt MatiHly thu i;i>ii<-t
thiit hu haa UHud h'm liont undtiavmirH to uct hi.i
wife to (dxiy the nrdor licfnri! Ij^^ will \>v. din
II
I OK. Chy. Clmn
char({od from Iuh liability touttacliiui'iit. Minrln
mm V. DoiiohiM', 10 I,. .I.N. S.
— iloIniuHtud, Jdj'rni:
A i)arty neKlfctin^ toju'odiK't; uorouuts l)ffoii'
the niaHtur wliuii ho rui(uii'cd, w ill ho oi'iIi'I'imI to
pay tlic ccmtH occaHioiiuil l>y his contt'iiint,
although no <;oniinitnicnt hax takon |ihu'i'. '1 hu
notice ru(juirud l»y Hection (i of gt'nonil onlor
40, is not ncL'osaary in oaHusof orders nixi fornon-
uroduution. lii-rrif v. Afuun, I (.'hy. Chiinih.
107. -Hpraggo.
Where an order nisi haw hucn ilidy mitvoiI to
enforce the tiling of acuountrt in the master's
otfiue, and accounts art! tiled, l)ut tla^ ncistcr
certities that they are inMutheient, it is the
practice to grant an order absolute ex pute;
imt if aHkeil, an o])portunity will be giviii to
shew the sulHcieney of the accounts. S^nncrr
V. Li'i'iiuiiij, I Chy. I'handi. 1H(I. N'anKough-
net.
Where, on an applic.ition for not brim^iu/.,' in
accounts in a Master's otiiuo, for an order nisi,
on the ground that the accounts l)rou^ht in were
insutticient, it appeared that the insuUiciency
consisted in the items being undated, the order
nisi was refused. In such ease, before applying '
a warrant shuuhl be obtained from tlie master,
calling upon the parties to bring in better ac-
counts. Merkley v. Cutni-liuaii, I Chy. Chamb.
292.— Spragge.
A notice of motion for an order abstdute foi'
non-production in the registrar's otKee, under
order 31 of the (!th of February, ISli."), retpiires
personal service, by analogy to the foi-uier prac-
tice by order nisi. Dlfkium v. Dickdoii, 1 Chy.
Chamb. 366. - VanKoughnet.
A party parting with papers after service on
him of an order to produce was ordered to pro-
duce them, to Hie a better attidavit, and pay
costs. liosii V. Robertson, '2 Chy. Chamb. GO. —
Taylor, Secrefari/.
Where a party is in contempt for not bringing
in accounts, it is a sufficient clearing of his con-
tempt to bring in such accounts, and the sufll-
oiency of them will not be looked into. (.'Lwci/
V. Patterxon, 2 Chy. Chamb. 217. Spragge.
On a motion to commit for non-production of
certain documents after an insutHcient attidavit
on production has been tiled, it is not absolutely
necessary that the notice of motion shoidd
^ spacify what is demanded in addition to what
has been produced, though tlie court considered
such the better course. On such a notice the
court will grant the more limited relief, and
order further production, but without er)8ts.
FUken v. Smith, 2 Chy. Chamb. 491.— Mowat.
When a p»Hy has Ixjen connnitted for not
bringing in accou at i, and it is shewn by certifi-
cate that the accounts have since been brought
in, it caimot be urged on a motion for his dis-
uharge that the accounts are insutiicient. Nor
will the payment of costs l)e made a condition
precedent to his discharge. Clark v. Clark, 3
Chy. Chamb. 67.— Taylor, Secretary.
See II. p. 284.
r>. t)f/i,r CiiiiM.
An attachment for refusing to NWour in ti.i
execution of a cognovit will not be graiitcd nn.jL
a ride has lieeii served on the witiie.ss uriliniul
liiin to do so, and lias btieii disobeyed. //«„.,'
l/<i,ii, ;i(>. S. 17(i.
The Judge at nisi prins doulined to tdniiu,!,,
witness for not answering i|ueMtions, Mliciiitll
MoiiLflit to elieit the admission of facts iiiiii,,rt|,
a si-andal upon himself. Hesidt^s, tlic i|,i![
thought the witness intoxicated, ainl ln ^ i
means able to give evidence at all. /),„ |/
v. M>irr, 3 (;. I'. :i(J.
No attacliineiit will liu for not ncikin^^.trctsi,!
to a peremptory mandamus. It slmiiM lull
not obeying the writ. Hii/mih v. Tin TrMA
iif SrtiiKil Sic/loit 27, ill t/ir 'J'oii'iixliijtiif J'litdt
iKii/ii, 3 I'. H. 43. ('. li. Chamb.- -Burns. ' |
The allidavits statnl that M., whoel.iiinoii.j,!
ollice ol ri^gistrar, n) tained a iiiaiicl.iinin |,!,l
directed to II., to deli er up to iiiiii the i.iil
and papers ; that he wi'iit to the ollicn witlitiJ
const!ibles in If.'s abse lee, and (leiuiiiiili;iltli«|
of his wife, reading whit ^lurported to lieapsf
ennitory in mdanms as his authoiiry (itl»
only a mandamus nisi), but refusing toalLwin
or her solicitor to exam'ne it; and tluv tid
took away the books, &c. Upon these .itfidjpi
the court granted a rule i.isi for an atfculii
against M., but refused it against tlK'ciiiistakL
tlicre being nothing to shew that tliev iJ
aware of the fraud. /n re .VcAd// </ (i/'oi J
B. .54. ' " '■
A solicitor whose costs have been taxcilmi
application of the elitmt, and not paid, a li. i
h.aving been returned nulla bona, is entitle.]
an order for an examination of thu client, titi]
ing his estate and elFcct '. Jie lilaiii, a S'Jir'ti
I Chy, Chandi. 34.'». - Mowat.
II. rKACriCE ON MoVlNli Kill.
I. Srrrice of Rule or yulicr.
A rule nisi for an attachment must lie a
sonally served, and the original shewn. Cm
V. Camphell, 1 Q. B. 416.— I'. C. -.loni*
A notice of motion for .in order .ihsolutn
order 31 of 6th February. 18(1.'), must lie ser
at leas', four clear days before its I'cturn, lijj
gy to the former practice hiy order nisi. A''J
Smith, 1 Chy. Chamb. 364. — VaiiKoiii'liiiet I
The notice of motion to take an aHiilwl
production off the tiles, and to euiiiniitiorj
tempt, should be served on the dcfenii
solicitor, not on defendant persoiialh
Roberttioii, 2 Chy. Chamb. iKi, — T.r
tori/.
Service of notice of n mi,,.
solicitor of the party eh, ah coiitai]
good service, (lourlayw '- //, 2 Chy. ili
158. — Taylor, Secretary.
On a motiim to conunit for cii,soiM;ii
order of a nnister it will be insiitHuicn. i;
liers to iirove by any other lueauij tliau tl
Hcate of the master, the service of tlicunkj
that it lias not been com])lied with, astki
is the proper person to decide hnth thesfij
PaMon V. Dryilen, P. l\. 83. -Chy. t'lu
Holmested, Referee.
*'■'' ■ I'laintitr ondoree>
"'■"'I "II tJio
L :> ""• 7.")tli (old)
^■■'.•'tteru-ar,i.s,,r„cee,
F an aiLsiver. .]/,,„,
ATTAOIIMKNT OF THK I'KUSON.
280
2, Ollnr ('<i^(^.
Til.'
iiili' I'cii- ivtt;u'liiiuiiit for iKHi-payliiint of
•dod \* pniimily a f^'i"'. I'ut u nix day
I'llH.
""'^^CrnnMt.^.:. I'.<'. Hu
An
order
to
Ih-
K. i<ir>.
iUid III' I'Xiiiuiiiod a* to dclitH, I'lmnot
UUiMlin viKMtioii. '-' "'■ V. \y«"<l, '1 I'
4'bainlJ. lioliiiiHoii.
of
Hiiliie
All ftttftilimoiit for not (duiyiiiK ii writ
^iilftiiitis imiNt t>f toHtcMl ill tcrni, oti tho m
an tiif niio i>ii wliioii it isHiu's. Hii/hni v.
Trii'ilii't iif Sriidiil Sniiiiii Xi). .'!, In. Iliv \
■trniMl' '•/ Tn'ii'l-'Kill", !« I'. If- ^'^' <"liainl..
.IViriin.
The mil' nixi oiillcd tiiion the trustcosot Hchool
..tioii iiuinl)or 1'7 ill tlio townHJiip of Tyfiidi-
jKi in tlu! county of HftHtiiigH, to mIiow oauHu
Ikv'iim iittachiiu'iit Hliould not iHHUo ngiiiiiHt
On an atlidiivit of Hurvii.'i- of this riih' on
H luiil ('•. Hinting tlifin to lio truHtcusof s lid
ntion, 11 nile iil)H(mito was gnmtiMl following
to form, nnil tlioreupon nii att.'icliinent issiiod
dnst A., U. M\i\ ('. : Hold, l>ft<l, as not wnr-
ited by tliu niloB. / /'.
i umiiilanms nim having lioen dircutod to "M.
. trwuiure'" >'f Ik'Uovillc," and an attaidinicnt
" 111 moved foraftur ho liad foriwcd to \>u trca-
ir for not making a return to tiic »anio : —
il that the proper diroetion would have been
lo'tho treasurer," &c. generally, though the
' mill direction was not ahsolutely wrong, l)ut
M S. had ce.iHed to hold the ollice, the at-
unentmust lie refused. liiinlcll v. Smci/rr,
\\l 398.-1'. ('. - Hums.
nceessary to Mliew that it liaM not )>eon dolivurud
to either party named in the order. />/>/• v.
MvXi'l., I Chy. Chanil). .-n.-Hlake.
Where an onler to coinniit iM fioiight for thii
noii-exeeution of a conveyance directed to lio
ke|it at a solicitor's ollico for execution, it niuiit
lie shewn that it was acci'ssihle for execution in
such (.tlice. H'/l V. .»/i7/. c, I Chy. Chamli. 370.
I Spragge.
{ It is not nueostiary to Htate in a notice of
motion that a certificate of an otticor of the
court will )h! rcail in support of tho aTiplieatioii.
■■ Such certificate can be n^ad though no uuoli
notice ho given. AtnHnrh v. I'hnikelt, \ Clhy.
Chamb. 381.- -Sjiraggo.
Whore an order is complied with after aervice
of notice of motion to commit for tlisobediuncu
of it, and before the motion conieH on, an ordur
to commit will not bo granted, but the party will
be reipiired to pay to the applicant the costs (if
the motion within twonty-finir hours after the
amount has )u'cn settled. /'*.
Fmir day's notii- ..iiist be given of a motion
to commit, (Irny v. Hatch, 2 Chy. Ohanib. 112.
- Mowat. lirouijhtiU v. Ilrrlnr, '1 V\iy. ChamV).
4H4. -Taylor, Svcretary, '
for attachment must be on notice.
Fiihan, "2 Chy. Chamb. ,53. -Taylor,
i writ of attachment for contempt in notob^y-
itlw original order to deliver nji tho custo
ody
fehililri'ii, uii(kr ('. S. U. C. o. 74, was movetl
linst for irrcj^ularity :— Held, that it was nn-
issarv to niake the order for tlelivcry of the
drena rule of court before bringing the father
I contcmiit, Imt that the proceedings alumld
liecu moved into and adojited by Mm court
m an attachnicnt cimld ivsuo from it ; and
Hliisattn''limeiit tlioveforc w.is irregular. In \
i\l,n,-M <>». M. 4"i9.
trWilsdii. . I. 'I'lic judge could by his own
br liavi; iittached the party. //'.
ilil, also, that such attachment was properly
til and sealed by the clerk of the jirocess,
lissHcd hy the clerk of the crown. Ih. See,
\'nkti\i'ld\. liniri,') ]'. I!. 77. - Chaiub.
niic.
I warrant to the shcritV to commit a person
rjjulai though no return day is men-
it. I'nntinx V. lirinnmi, I Chy.
idaiutirt' endorses on the copy of the
-ved on the defendant the notice
■V the "A\\ (old) order of this court,
Dii'ii afterwards proceed by .attachment to
an .answer. Mi-i/ir\ v. /{nlxrlsun, I
155.
lapplicatioii to eoininit a witness for refus-
1 sign deiwsitioiis m by him, will not be
I ex parte. Blubi \. Tcrri/lH'rri/, 1 Chy.
lb. 255.— Spragge.
I moving to niaive an or-ier nisi for not
ng an abstract of title al)solute, it is
Motion
Morjihtj \.
Si'cri/<iri/.
Motions for ordoi-a to commit for non-produc-
tion are projicrly ma<le in chamberH. Jiu.i/i v.
Itdhir/Moii, 2 Chy. Chamb. (!(). -Taylor, <SVr/v-
'"'■.'/.
The court will entertain applications afTecting
the liberty of the subject during long vacation.
//((/■CM v. .l//vr.i, 2 VA\y. Chamb. 229. --"Van-
Koughnet.
Poverty is no excuse for delay in making an
application to the court, as in such case the party
can .ipply in forma jiauperis. lli.
Whole notice of motion had beer given of
.an a]iplieati(m to cimimit for not bringing in
accounts, and four days intervened between tho
service and the motion, one of which was Good
l'"iiday, during which the master's office had
been closed, the secretary refused the applica-
tion without costs. Wihon v. (luuld, 2 Chy.
Chamb. 23f!. -Taylor, S>'cri'tori/,
A motion for production, with the alternative
that tho party be committed in default, being
substantially a motion to commit, requires four
clear da."'<' notice. Ahd v. fliltx, !) L. .1. N. S.
3()3. — 1 lidmested, /'(/< rci:
A party is not in contempt for non-compliance
with an order of court until the opposite party by
some step brings him into contempt ; if such
party omits this, he cannot urge the contempt
in b.ir to a ^iroceeding by the party so in default,
or urge it in extenuation of his own laches.
(,';ile.yiir v. aillr-tpi,; 2 Chy. Chamb. 2fi7.— Van-
Koughnet.
A party moving to commit for disoliedience of
any order or <lireetion of a master, must shew by
means of a certiHcate of the master, that the
person moved against has di8ol)eyed the order,
ami is in default. Parion v. Dri/drn, (5 P. R.
83. — Cliy. t'homb. — Holmested, Referei:
387
ATTACHMENT OF THE PERSON.
pi;
'l!^
I
.11 J
It will be iuBufliuioiit in cbainbers tu prove
by any other means the service of the order,
and that it has not been complied with, us tlie
master is the pro])er person to decide both tlicse
facts, lb.
III. Pkoceepinos ok.
1. Sffflnji aside or Motion fur DUrhnriii'.
(a) For non-payment of (foxtx.
Where on granting an attaclimcnt against a
plaintiff for non-payment of costs pursuant to
a rule, several obiections were taken and ovei-
ruled : — Held, that after the plaintiff's arrest
under the attachment he could not take objec-
tions to the arrest which might liave been urgeil
on shewing cause. Reqina v. /fi/utt, T. T. 4 & .5
Vict.— P. C— Macaulay.
A defendant in custody on an attachment for
non-payment of costs, is not entitled to liis dis-
charge under 5 Will. IV. c. 3, in the same manner
as if he were in custody in execution for costs.
Wilson V. DiUinriham, (> O. S. r»37.
An attachment for non-payment of costs pur-
suant to the consent rule in ejectment is not a
writ of execution, and a party taken under it is
not entitled to V)e discharged from custody as
having been illegally arrested under ."5 Will. IV.
c. 3, 8. 2, which abolishes writs of execution
issued on a judgment entered for costs only.
Hegina v. Kelly, GO. 8. 1.5l».
Where expenses have been vexatiously incur-
red in a suit by the attorneys on Iwth sides, the
court to protect the client will order <in attach-
ment for non-payment of costs, though regular,
to be stayed without costs, upon payment of the
money due. Jfeijimi v. Ctimeron in I'lai/tir v.
Cameron, 4 Q. B. KiT).— P. C— Macaulay.
When on the taxation of a solicitor's costs the
master, without any order as to the costs of
taxation, taxed them, and included them in his
certificate, and a Bul)pcLMia and attachment issued
in due course for the whole amount in such
certihcate, and the client remained in dose cus-
tody for a considerable time under the attach-
ment, before applying in regard to the supposed
error, the court reftisetl to set aside the subpoena
and attachment. Medill v. Sex fun, 1 Chy. 311.
(b) Punjin;/ Conleni/)/.
V^'here a party is in contempt for not bringing
in accounts, it is a sufficient clearing of his con-
tempt to bring in such accounts, and tliG sufH-
ciency of then) will not be looked into. Claneij
V. Patterson, 2 Chy. Chamb. 217. — Spragge.
It is a sufTicient clearing of contempt if a
party has done the act ordered and jjaid tlie
costs. An order of court clearing liis contempt
need not be made unless he has been in custody.
, Duncan v. TrotI, 2 Chy. Cliamb. 487. -Taylor,
Secretary.
(c) Other Cases.
Where defendants ha<l been brought into court
upon an attachment, although they cleared them-
selves upon interrogatories of the imputed con-
tempt, tne court refused to allow costs against
the prosecutor, even although he had omittej >.
fact in his affidavit which might have affccJI
their granting the attachment, and although oikI
of tlie affidavits upo i which the attachment nj,!
moved for was not tiled early enough for thegl
to answer by a counter affidavit. Hej- \
Kenzieetal.,'ra.y.70.
An affidavit to set aside an attachment quiI
be intituled on the crown side, and not in t||,|
names of the parties to the suit. ^falLfhrI
J/orcw, T. T. 1 & 2 Vict. '
Even although the attachment ordered has ml
issued, (fnrland v. liinroHvs, T. T. 3 & 4 Vkf
—P. ('. — Macaulay.
A party moving under 7 Vict. c. 3, s. 8, for J
discharge from custody, must shew thatheiij
contempt for nnn-payment of money ; and ijt
notice of intention to move must be served J
the opposite party, not on his attorney, (jmi
son v. Balkwell, 1 Q. B. 2.
Where a verdict was taken at nisi priusn
ject to a reference, and the reference wa« afe
wards made a rule of court, and contained li
usual clause against tiling any bill in equity 1
defendant, against whom the award was,,
not move in the court in the proper time, but fi
his bill in equity, for which the court m
attacliments against him and his solititor, tn
which attaclmients writs of habeas corpus iJ
subsequently issued : the court refused to 1
aside those writs, or suspend proceedings 1
them. Perjina v. Maddock etal. 1 Q. B. 32il
Qutere as to the right of a defendant urn
tempt for non-appearance to a subpitna L
on an information of intrusion, but n(jt aotL
arrested, to move quia timet to set aside ttt*
cess issued against him. Attornei/ (in.ril
Afr Lac/din, 5 P. R. 63.— P. C— AWilsoa
A writ of attachment for contempt ii «
obeying the original order of a judge to ddi
up the custody of children, under C. S. U.Cl
74, was by order of a judge issued from the f J
of Queen's Bench ; and tlie husband m
against it for irregularity. It was objected^
while in contempt by not having surra
himself under it, he could not be heard ;
Held, that he might nevertheless defend
by objections to the process if irregular,
Allen, 31 Q. B. 458.
An amendment of a bill by adding j,
recjuiring no answer from defendant, isai.
of process of contempt for want of answer;!.
on an ex parte motion the defendant mil
discharged. Thrasher v. Cunnolli/, 1 Qy.r
A defendant in equity appealed from am
directing his committal for a breach of 1
junction, and moved the court to stay pM,
ings under the order pending the appeal ■
was refused. Ganihk \. /fowl(mil,3Ci:j.\
The court will entertain ap^ilications )
the liberty of the subject during long n
tfurris V. Myers, 1 Chy. Ciiauib. iSSl-
Koughnet.
It is improper to have recourse to an*
uient when the object can Ije obtained 1
it. Wliere, therefore, a party who viui
to execute a conveyance had come intoli
execute it, aiChough after the proper i
the plaintiff's solicitor knowing these iKtil
)iit affidavit on
ATTAINDER.
290
attachment, it was set afi^l;* with .Mjsts.
Tlic fact fiiat a defeiulant had put in an insuili-
„,t atfiilavit on i.nKluction is no bar to his
m-iiii! t(i iliamiss the bill. <,iH<:y>ir v. <.,ll,s,„<;
iChy. Chamb. 2G7. VanKougluiet.
I A .lirpction to do an act " f.>rthwitli" is a siiHi-
' ntcompliance with onlers -JSS an.l 203. Whuro
der an order so endorsed a party wa.s attached
"(iiaobcdienec, the attachment was holil to be
nlar Where the attorney of the iiarties
cted to confess judgment at law, had been
jsted for disobedience as well ius the parties ;
^'was discharged. W'nlluc' y. Anr, Lh-imMon
I Acre 2Chy. Chamb. :W.'. - Sprafige.
IV. MlS('F.I.I.ANI',()l-S ("asks.
Attachment lies against c<iniinis8ioners
i.f
irts of Requests who try causes in which they
e an interest though rcnu )te. /.V.r v. ^f<• liih/ri-
d, Tay. 22.
•An attachment was granted against a deputy
k of the crown for having issued serviceable
cess without authority ; and afterwards, on
appearance in term to answer interrogatories
miirt ordered him to be disniisstid tVoiu hii
f the prcicceilings.
le, and to pay the costs o
. V. Fmm; 3 (.). S. '24'.
li prisoner in custody for contemi)t, may iiavo |
^ benefit of the limits. /!<.> v. K'uli/, U. T. '
m. IV.
.ving to a mistake in the crown ollicc a rule
lieturn the writ of certiorari to remove a con-
ton, and afterwards a rule for an attachment
led.'although a return had in fact been filed,
je than six months having thus expired since
I cunwtion, the court were .oskcil to allow
esB to issue against tiie justice for the illegal
rictionasof a previous term, but the applica-
iwas refused. Quiorc, whether tin- six months
be held to run only from the time of
Ihing the conviction. Jii re .In'n'c, \\)i). I (. 1 !t7.
Semblo, tluit the omission by the plaintifl' to
aver that the sherill" had not thv i»arty before
the court at tlie return of tho writ of attach-
incnt, tliough not l)ad on general would be Imd
on special demurrer. Hi.
Scinble, that before the return of a writ of
'■ attachment for contempt the sherill' cannot pro-
I perly take bail for the appearance of a party,
j without theorderof a judge; but after tiie return,
if the party Ik; upon attachment merely to com-
pel tlie payment of money, the shcritl' ivs of
' course may take l)ail to tlie limits. I.'iiic v.
, Kiiiijsiiii/I, ■() (i. li. 57!t.
iSemblc, that if an attachment for contempt in
j not paying moneys is to be regarded as mesne
] process, it should be avericd in a dticlaration for
! an escape that the sherill' had not the party in
court to answer the exigency of the writ ; and
I if the attachment is to be regarded as an execu-
j tioii, Semble, it then reiinires something in the
nature of a judgment to su])port it. /h.
The merely averring tiiat the plaintiff sued
I out an attachment for contempt, without stating
' what tiie contempt consisted in, or by what
i authority it had been detemiine'l the party was
] guilty of contempt, is iiisutlicieni ; a good legal
. foundation for the attachment must be shewn on
the recoril. ///.
Whciv upon apjdication tocuminit adefendant
to gaol umler the '2'2 Vict. c. !)(i, s. I.S, the judge
ordered a ca. sa. to issue instead, as allowed by
that section, and the tlefendant thereupon gave
bail to the limits : Ifcid, that lie could not
again be eoniinitteil to close custody under the
first alternative of the .same ^'lause.
/}<„r,s, -2 I'. H. 348. I', r. Bnrns.
ATT.MNDKlt.
/'i
The property of a iicraon attainteil tor high
trciwon, is not forfeited until the attainder is
complete, (^luerc, as to the effect of a dctVmlant
becoming attainted Ijctwecii tlie sci/nre and sale
iparty arrested uiMin an attachment issued ; "f bis goods under a fi. fa. l'J<i.tlii-i,wl v. Mr-
of this court, is entitled to the benefit of the j Kitizir, 5 O. .S. 708.
limits, on production to the sheriff' of the ,Se,„l,U!, that the wife of an attainted traitor
icate from the clerk of the crown of bail ! ,..^„„„t. ,iyf^.,^t; the recovery in ejectment of the
igbeeu filed according to the provisions of ; j„„.chaser at sheriff's sale, in an action against
11 Vict. c. li), which places prisoners 111^1,0 traitor on a Ixmd entered into before his
ilyuponsuch attachment on the same foot- attainder, by setting up the title by f(.rfeiture in
lebtors. I)an.'< v. <-ii.y>vr, 1 t by. dii4. ^1^^, ^.^.^,^^^^ ^^.i,;^.], the crown had foreborne to
Iboiul to the limits may be taken on an at-
neut for luiii-payment of money, and may
MJKned. Montijumcri/ v. Ilmchml, 10. T. '2
Bre, is an attachment of privilege at the
bf an attorney within the !)th clause of 2
rlV, c. 1. And (iniere, would this dcuibt,
lie want of an atrVlavit l)eiiig annexed to n
ble (iroccss, prevent the defendant, a coii-
, from having the lienefit of the 21 .lac. f,
eiioiiit of venue, linuni v. Slim, Ttil. 15. 141.
lierilf is liable to an action for the escape
Iparty attached for contempt of court in
a.s8ert. J)i>i' d. (iille.'<i>!i- v. Il'/'.c.v«, 5 Q. H. 132.
'i"he estate of a traitor concerned in the reliel-
liou of 1837, anil who accepted tho benefit of the
provincial statute 1 Vict. c. 10, is at once by
such acceiitance as much vestetl in the crown,
under the operation of 33 Hen. \'1II. c. 20, s. 2,
without oftice found, as afterwards. //>.
Though by 33 Hen. Vlll. c. 20, the crown, in
C!we of attainder for liijjh treason, wouhl be
deemed in actual posse.ssKm without any inqui-
sition of ortiee, yet such lands would (>iily vest
in the coiiiinissioners under '>0 (ieo. I II. e. 12, as
should be found by imiuisition to be vested in
irfomiing an award, and it is not necessary \ the crown, and therefore no more laml couhl
Icr to this action that the party should l)e ! ]K>ssibly pass by a deed from the commissioners
'it up on the return of the writ of attach- 1 than the inquisition had found tho traitor seized
•nd formally committed by tf e court, i of. And he'd, that tho inquisition could not
'(ijwSmilh, 4 Q. B. 181, ' supiKirt the c( in v<>vanco which the commissionen)
19
■II
'WW
■■'■'1 '•■■ ■ 'i-i'M
'!!■ :k!ll
t i\
n
lilt
I ' -'A
i i
!;
291
ATTORNEY AND SOLICITOR.
!!!ll
i 'i
m
mode ; for it referred to nothing which could
Hupply proof of iiluntity, an<l the conuiiingioncrH
were not warriinted in going Ijeyond the inquisi-
tion. And Hendile, tliat the incjuitiitioii was void
for want of certainty. /•''"- d. S/irli/mi v. /'urn-
suji, 1) ii. li. lOi").
A statute was ))asaed reversing the attainder
of A. S., and taking away the forfeiture wrought
thereby, so far as it might atlect sucli ijortions
of Ids estate as liad not been ah'eady dechired
forfeited, and l)een sold under authority of law,
and vesting such estate in those wlut could claim
it if he liad not been attainted : provided, al-
ways, that nothing in the act contained shouhl
affect any property sold or conveyed by theconi-
missionei's of forfeited estates, or any public
otticer acting for the crown in that bidialf, but
that such property should remain as if the act
had not l)cen passed. In the preamble it was
recited that a part of the estate had lieen taken
upon inquisition an<l seized by the crown : —
Held, that the plaintiffs, claiming as devisees of
A. >S., must shew, ivs part of their case in the Hrst
instance, that the lands claimed were not part of
those forfeited and sold. Jioe il. S/nrcim v.
ATTKSTATKjN.
I. Of Coonovit— .SV (.'oiinovit.
II. Or Wills— .SVr- Wii.i..
ATTEST! Nfl W ITNESS.
Si-f lOvlDKNCK.
r.
ATTORNEY AND SOTJCITOH.
AUTIlLKI) ClKUKS.
1. iSi-rrlrf timhr Art'trh*, t>93.
'2. J)iirfmr{/f' from A rtirhn, 29H.
'A. Aji/iflrii/!i>ii/or Ai/i)iixi!o)i, ■2!)4.
II. C'EKTrVK ATKANl) PeHSON'S DlSl^lC AI.IFIKl',
•2i)4.
HI. PkIVILKOKS ok AlTOHNKVS, 2i)'>.
IV. CirASiiF. OF ArroRNEVs, 2f).'>.
V. A(iKNT OF ArroHNKv, 290.
VI. PnoCEF.DINliS AOAINST ANO LlABnjriF.N OF.
1. On Uiulirtiikinus, 297.
2. l''oi' Act 111(1 irltlwiif Atttliofitj/.
(a) I'rmiiiHion of A iithoriti/, 298.
(b) J/mhilit,/, 298.
(c) Efirl of-Src PkaCTFCK A'I' (iAW.
.1. ritr Xfiiliiiriici;
(a) //( diinduii of (finixei> or ilkrhariji'
of niiUcM, .'?i.)0.
(b) III liirfHlUjalitiii Titli'n mill llcii'm-
tirinij hiMlriiiiii'nt.i, 3(>4.
(c) iVIie)! II Defpiicf to Cliuiii fiirCoHlx,
30.-..
(.1) Othir CmfH, 30«.
4. To Siimmiirii Jurimlirlioii,
(a) /'((/• not J'ai/'iiiij orer Mmitiix, .'(jj
(b) AiiHii'i'rlii!) Ajfiilaritx, SOS.
(c) Strihiiiij off thf Rolls:, .ms.
(d) Olhr Muttei:t, mi
.I. For Shi' riff 'm Fi-i-x, ;nO.
fl. (tthirCiitfn, .311.
7. Tv ArtioiiH vf Tre»)Hi.-i>i~ SWWi^fA
vn. Ai'THoiuTY, 'm:i.
VIII. DlTlKS.
1. JU'laiiii-r, .313,
2. Coiuliict anil Miinaiimii'iii nf Uu,;,}
(a) I'e-.viitloiiK t'oiiiliiii, .SI,').
(b) Offier CiiKei, .SKJ.
3. DeiiHiuj ji'ilh CUiu, 3 IS.
4. Ot/wr 6'(/w.f, 322.
IX. Bill op Cosrs.
1. Sli/nlnji anil Ddirtri/, 322.
2. Aijrtemints as to <'o*tn, .125.
.3. Hefi-renrc to Taxution or ItvrU'.i,,,,
(a) Who ma 11 Appli/, 'A'2't.
(b) What way he llt-Jernil. Bl
(c) Tiini- of Htferciici; ;i27.
(d) Afttr Tii'i'lirJ/onthsurSMi.
■ 327.
(e) ProeetJiiuiiTto Tax, ;)iS.
(f) What Ri-corn-abli-, .S29.
Ig) JJiupvtinij Retainer, X^.
(h) (!oM» of Tiu-atioti, :j:!|.
(i) Othi-r^Casi's, .S31.
(j) Civitn between Piirlii mnl l\:
See Costs.
4. Recovery 6// Action.
(a) Slatnte of Liiniliitiinm, .'l.T.'
(b) Other Cas,-x, 332.
.-). Takinij Security for Oo^tx, 3;().
(J. Other CoHiin, 334.
X. liiKN FOH Costs.
1. To What Krlenl, 334.
2. When Lost, SS.'i.
3. Set-off of CoxtK, 33(i.
4. Settlement of Sniln by CHi-hI.i, XKi.
n. Other ra^<eH, .337.
XI. MiSlELLANKOUS f'ASFS, 3.'tS.
XII. OtIIKU MATfEUS.
1. Xaine of in Xolin of Arl'iu>-\
AcxioK.
2. Swearimj Ajlidaiuls—Sir Xvtm
3. Execution of (Joiinoril-Sa Om
4. ConJIilentlal Coininiiiiiciiliitv-^n
OEXCE.
.->. A Itoriiey ami Solicilor (Inn ai^M^
TORNEV AMI Soi.tCITiMI HM
»'(. narrUlerx'See Barimstkr.
7. County Attorney- Sa Cmsn
NKV.
8. I'oirer of A ttornry—Sii I'msuri
AdKNT.
, '» y. a 373.
lattoriioyjigrocil with ,
irtiKirshipiittliocxpir
Vi
ATTORNEY AND SOLICITOR.
•2U
4FI
I. AllTICI-EI) Cl.KUKS.
1. Sirvicv under ArliclvK.
lAii iiiticlod clerk can Horvc only miu year with
■ > .1 ..ii..— :.. ^^\y^^^ I'roviiicc.
L iweiit of tlic attorney in tlii
\^llkUoH, H. T. 7 Will. I\'.
^here an articled clerk carries 011
ace where the master docs not
B so siieiit will not be computed in 1
Mcliifd-ili V. McKinzie, M. T. 1 Vi
■Where an articled clerk carries on IxisincHS in
rJace where the master docs not reside, the
'" " ' ' ■^" ' ' ■ his ser-
('ict.
Lii attorney was struck oil' the rolls, where it
shewn on affidavit that during the entire
W(hI he was under articles lie was a salaried
Mi attendhig a public office, /n n: liidout,
IT. i & 3 Vict.
I clerk liaving served four years, obtained his
liter's consent to go tt> Ireland for the benefit
[his hcaltli, iutencfing to return in six months,
I Ills liealtli still continuing bad, he with his
iter'n permission remained six months longer.
I court on hii* return admitte<l him as an
tarney. /« '*'' /^",i/«'*'y> '> ^- ^- '88.
nil aiinlication for an att iclunent against
Kttorney for having improperly granterl a cer-
ate of actual service to A. B., an articleil
Ji. when he had been absent from his service
laccimiit ()f ill health for nearly two years,
Ut he was under articles, and to strike A. It.
[the rolls, on which he had been admitted
e than two years before, the court refused
■d niles, on the ground of the long time that
leUiiseil since tlie clerk's admission as an at-
By ; but they made his master pay the costs
ihe application. In re flollantf, (). S. 441.
,10 applicant, in 1847, articled himself to J.
[ kii attorney, then in partnership with E. .1.
Kovembcr, 1850, .1. M. went to England and
liiot return ; in February, lS.i2, his partner-
h with K. •'. was dissolved. In March, 18.")2,
fdcrlc articled himself, of his own accord, to
U for the residue of his five years— .1. M. not
tenting to this arrangement. Tlio court would
UUnw the time served with the last master.
tarh Mnlurt, 10 Q. P.. 204.
, having l)een articled on tiie 2 1 «t November,
I lor five years, was permitted to be absent
^ 1855 tor six months, under tlie belief
(that period would be allowed. This he
at a grammar school propTring for the
entity. He was afterwards absent for
ami live weeks respectively in 18.")(i, to
) for his examination at the Univcraity : —
, that the six months could not bo allowed,
lihat the otlior periods might be. /« rr
V, I'J y. li. 373.
jattoriioy agreed with a clerk to take hini
Ipirtnership at the expiration of his articles,
^hat hix share in the profits should coni-
'i from the date of his articles. The evi-
(hd not shew that the clerk had been
itcd. A separation took place, and an
k was hrnught for compensation for services :
kI, within 22 (!eo. 11. e. 4t!, which is in
[here, although re[)ealed in I'lngland, ami
pc action w.M not maintainaljle. Dtinm v.
h 11 ('. 1». 404.
2, bUclmrijr from Arlkkti,
lourt ordered a clerk's dischai'ge, the
teyrefuning to release him or assign the
h nPoUa-mn, 18 Q, J J. 250.
A clerk articled to an attorney who absconds,
%vill be discharged. In rr Mrilraior, 1.5 C
V. 54.
Delivery of a copy of the rule nisi to the
attorney's town agent, and leaving copies at the
attorney's last place of residence, and at his
office : - Held, sutHeient service. Ih.
3. A/i/ilii'dllunfur Ailinitmun.
A person was admitted upon his own affidavit
of service, the attorney being absent from the
province. Jindcnlinr-st, rx /xnic, Tay. 1.38.
A certificate from the luaater, and an affidavit
of the clerk "that he had during his clerkshiit
done everything re(|uirod of him," was held not
sufficient. Lijont, i\i: inirtc, Tay. 171.
Where an attorney's clerk had lost his articles,
he was sworn in on an affidavit of the loss, and
producing the usual certificate of service. In ri:
Lorinij. M. T. 2 Vict.
The time of a clerk articletl after the 1st of
,.luly, IS.W, must expire fourteen days before
the term of his admission, for the affidavit of
service cannot bo accepted at a later ])erio(l.
Where, therefore, M. was articled for a year on
the 25th of .lamiary, lS(iO, .and H. T. began on
the 4th of February, 18GI : -Held, that he couhl
not be admitted in tliat term. In re MucGachen,
20 Q. K 321.
II. (.JKRTIFlC.vrK AM> I'KH.SONK DlSyiTAMl'lKK.
A aidicitor in the sheriff's cimrt in Scotland
is not entitled to be ailinitted on ]^iroof of service
here f()r three years, under 7 ^^ ill. IV. c. 15.
In re Mnmrii, 'Ul K 114.
The penalty of i.'4 for omitting to take out a
certilieatc in jirojier time, is p.ayable in each
court. Quipre, as to the amount to bo paid for
his certificates, where the attorney has allowed
the time specified for the courts of C. 1'. .and
Chancery to pass, but not for (^. B. Itr Liithnm
V. '/•/((■ Ltir Sodtt;/, Q. 15. 2()0.
To a declaration against a C'ounty ( 'ourt judge
under ('. S. U. (J. c. l,"), s. 5, .is amended by 20
Vict. c. 30, to recover the penalty imposed for
acting as an attorney and conveyancer, .ind pre-
paring doenments for one (J. to be used ni n,
court. Defendant pleaded that he did not prac-
tice in the profession of the law as an attorney
for said (i., or as such attorney jireparo .any
papers or documents to be used in said Surrog.ate
Court. T'he evidence shewed that defendant
)irei)ared gratuitously for (!., who was a widow
in poor circumstances, the petition, bond, anil
altidavits recpiired to enable her tti obtain ad-
ministration to her late husband: -Held, that
the second ]>lca was proved, and a verdict was
therefore entered for defendant on the leave
reserved. I'er Draper, ('. .1. of Apj)cal, and
M(U'rison, ■!., the evidence did not bring <lcfen-
dant within the spirit of the act, or the mischief
.against which it was directed, which w.is the
doing tlie .acts prohibited for profit. Alltii v.
Jurrw, .32 t^. B. 50.
l<ocal masters and deputy registrars of the
( !ourt of C'haneery are not at liberty to practise
in iiartncfship with solicitors practising in this
court, although they may not actually >jliarc iu
1
1' , » ■
1, ii'-«i
WJ
vn
. ''i.
l"',:
1 '
m^
29.5
ATTORNEY AND SOLlCITOlt.
m
the umuluinciits of suits. McLfun
Chy. Chanib. 432. Spr.iggc.
A county attorney practising
need not take out n cortiKeat''.
;«Q. B. ')].
Sco Ihx V. Jiiilimll, Tiiy. 487i l>.
III. I'KivjLKiiEs OK Arrou.NKvs.
Wliurc to a nlca in abatement of privilege aH
an attorney, the plaintiH' replied process issued
against him and others, under .> Will. TV. o. I,
(restraining several actions on bills, notes, &c.,)
and that tlie othei-s eould not be served, &c.,
a demurrer to the replication wius overi'uled. '
Riclivionil. V. (\(iiiiilicl/, M. T. '2 \'iet. |
An attorney coming to court in term on )iro- |
fcHsional business which has been disposed of, is |
not privileged from arrest in execution. Hlnin- |
hrUh/i V. Drtww, >I. 'r. , 2 Vict.
An attorney has no privilege from arrest on
attachment for contempt of court. AV M<:/ii'i/r( \
ow: ttr., 2 1'. R. 74.- ('hand). - -Ihirns. . 1
An attorney cannot act at a trial both as an
ivilvocate and a witness. licimlict v. Boiilton, 4
Q. B. 'Ji>. Sco (Jaimroii v. For.ii/ll,, 4 Q. 15. 180.
I'er Maeaulay, .1., and . I ones, .1. .Attorneys,
not lieing baiTisters, cannot, iis of riglit. be heard
as advocates in the District Courts. (Kobinson,
C. J., diss.) fn n- Lnix-iiolkn; 4 Q. li. 4!)'_'.
Held, that County Court .juilges cannot allow
attorneys who arc not barristers to practice before
them as advocates in County Courts. /n iv
nrook-r, 10 L .r. 49. V. C. -Jones.
As to the right of an attorney to insist on
taking part in proeecdingsat au iuijucst. .li//ifi«
v. Sti'.wnrt, 21 Q. 15. 39t).
V. CruMii, 3 should be substituted a.s attorney, nn,\ ^'^u
' plaintitl "s agent, with .1. and B., went tii ikd
, I crown odicc, wliere, with the pcrmisHJon of jlI
/ I clerk, J.'s name was struck out and U.'s n^\
inserted in the jira'cipc. The same change nl
iua<le in the writ and copy before service , I
Held, that the alteration was unauthorized, jgil
that the copy and service must be flttMiiLl
irjiiilhi V. V<(/«'ir///, 2 I'. R. 184. '
Richards.
iidy as sue
tic Cijliiintii, I
311.
-•-'liiunl]..
No person exeept a barrister <.r atti.rney duly , ^"orney cann..t substitute
.,ualificd, is entitled to prosecute or defend suits ! "'"^*"' '""',*■; '. ■"f'^'^'i *^?, '"I
in the Division Courts, li, ir Jwlqcojlhc, Count >( '. ^ ''">>''"'■■'' * ^l B. 1 - l.-I . *.
of York, 31 Q. B. 267.
O., siucc passed.
But sec 35 N'iet. c. 8,
IV. Chanok or Attok.nevs.
It is no ground of objection to a notice of ac-
tion against a magistrate, that the plaintiff de-
clared by a different attorney from the one by
whom notice was given and process issued.
McKeiuii' V. ^fi^wburll, 6 0. S. 48Ci.
Semblc, that a notice of trial cannot be said to
be irregular, liccause A., one of two partners a.s
attorneys, signs the notice of trial ;w« the plain-
tiff's attorney, although B., the other partner,
a]ipoared as the attorney on the i'ei:oi'd, there
having been no order to diangc the attorney.
GamMi- V. Re<w<, 7 Q. B. 40«.
Where the attorney for plaintiff died after
service of reiilication, and before service of notice
of trial, and a new attorney, signing himself
plaintiff 's attorney, ^avc notice of trial without
a notice of the apixuntment of a new attorney
having bi.en iireviously given, the notice of trial
was set aside with costs. Sin/ v, Miinnhiii,H
L. J. 1G7.— C. L. (.'hamb. Richards.
.1., an attorney, sued out a writ for the plnin-
liQ', ou iul'aut. Next day it was agreed that B.
On the death of an attoniey in a suit it u
only necessary to notify the other side of ul
death, and tlie a]>]>ointnient of another in t|l
jdace. liiink of Montnal v. Ilarrmm, 4 p jl
331. Chamb. -Draper.
j This court will order a party's solicitor toil
! changed without any condition as to iiayinttj
I solicitor his costs. Mcijers v. liulicr/mi, \\\k
\ 430.
The crunnion order to change the si)licit«rJ
I obtainable as of course im pnccipe. In ,•,■ |/,l|
I Chy. tJhand). It)!». -Estcn. ''*
j On an appeal from a !Ma.<iter'.s re|inrt, ui
oltjected that the solicitors appealing were i
the solicitors who pro\'cd the elaima lieforej
nuuitcr : — Held, that the solicitor might I
changed without order, that being the fji
practice in 1837, when it came into force, aniJ
; having no order to the contrary. flm>J
j limli'n, 2 (,'hy. Chanib. SI. — VanKoughnet
y. .AoKSr OK A'lTOUNKV.
Service on tiic agent in tiic cause, thniijlJ
the general .agent, is good. Crooh v, Oml
O. S. 141.
\\'here money by the award is to Ijc pai^l
the plaintiff, or to the plaintiff's attnrnev,'
another atw
money. MoM'tif
Macaulav.
A defendant, sued in the county of y
worth, but who lived in York, cmpkelj
1 attorney in Toronto to defend him, wjnf
I structed another attorney in Hamilton toa
1 an appearance ; !\ declaration w.^s then o
; to the attorney in Hamilton, and dcolineA |
; terlocTitory judgment was signed and (
I assessed. An application to set these pra
' ings aside did not shew that a copy off' '
i ration had not been served by affixing so
the county ofhdc : — Hehl, that upon tbLu
sion, and for other rcivsons, the .siimnionid^
be dischiirgcd. l/iiiiiil/ou v. l!roini,li§
( 'hamb. 257. - -Maeaulay.
1 Held, that an a])plication on the \mt
attorney resident in the cmnitry, nwie*
I aside a lujtice of trial served on his J4
I agent as irregular, and made witliin ci^|
i after such service, is not too lato.
I v. C'utnr, 10 L. .1. I.V.>. V. 1. CI
I Wilson.
I The fact that a man employed iuiolhtti
a specified act for him at a ])articuliif
' raises no ])rc.suinptioii wiiattner th.it tkii
• so employed has authority to do a similtfl
I a different time. Sniitli \: II'k; 1 L it
i l.>4.— C. I,. Chamb. Hagarty. ^-(H
I v. McKliistft/, 2Hi.h. G22, p. 338.
91
^Vhcrc ilofeinlaiit
loinas, sent an aii
jicnoe the writ of
lere for him, which
|»nu.'>ry plaintiff's at
lonandiiemanilofjilc
ifcndant's attorney
tld, that although B.
IC08 in like manner
, was not to he dc(
icept service of pajiei
me for pleadijic did
niiary, when the ch
J»a were received Ji
tSt. Thomas :— Held,
( declaration and de
|»t'8 attorney from B. {
t he filed and served,
B service on B. as his
I A summons cannot h
time attorney and sci
r another attorney
IP. R 22. -C. L. Chan
I In .ipjJications of strii
it Iw assnmed that an
pjnt" of a person is by
)»nt, and tJint such
lomey. Len/iev. Folei
■irrison.
|lhe agent of a solicit
fiers or on a fund i
ncipal, and to the sai:
iicipal's client, and sue
fing the agent so jw t
obtain his lapers.
nb. 11.. -Taylor,' ^,^j,
|Whero the client harl i)a
% retained the hulk oft
»unt nf his agency bill
i) the balance, who ref'i
Kin against the client f«
h execution was staycf
lie agency charges in tl
hfork in the suit in w
7;Sed(iu,Trc,wouldtIi,
nc amount of his agenc
kW, tliat the " two ele*
bme now allowed ?>y l,i
•tof a country attorne
V- '-' (»., means the
|cen the day „f gervic«
lenn'gofthceventtoM
«»-Daltoii, <\ (< ,(. p
itilnMrl.'rr,,,,,; ]•,(
^''' ■'■ «- I L. .;. N
^^"' ■' »•• K. 132, p
iHiamb,447, p. .S2o.
I. 0„ r,„/aiu
lere a "Icolaration in
■« «n a wrong party, „
jwmte to tl/e att;,r
Wgl' to have iKjeii serve
M™ no action for mi
li f ir'r, •"■" ^^^
P"«-«IUUC88fnl-.tllC COl
117
ATTORNEY AND SOLICITOR.
206
Wlicro ilofemliiut'« attorney,
lomas, sent an aiipuaniiico to
living at St.
B. of Ijonilon,
hciice'thc writ of summons issuoil, to enter
lore fnr him. which was doui;, and on tlic 24th
l^u^rvpi'aiiitiff'a attorney served the declara
' 'emand of plea cm B., which did m '
rfondant's attorney till the 25th January
m and demand of plea cm B., which did not reach
"ondant's attorney till the 25th January :-
,1(1 that although B. had twice entered appear-
' i„ like manner for defendant's attorney,
was not to be deemed his general agent to
«ot service of papers ; and therefore that the
ve for piea<luig did not count till the 25th
when the declaratitm and demand of
received 1)y defendant's attorney
linuary,
ea were
St Thomas:— Held, also, that the receipt of
' (ieclaration and demand of plea by defend-
ht's attorney from B. and sending a idea to him
I lic'filed aiul served, was not a nititication of
I on B. as his agent, /h.
! service i
A summons cannot hd taken out by an agent
Unne attorney and served on himself as agent
. another atttirney. Oiitnrin Hank v. Fhhn; I
p R. ji.— t'. L. Chamb. -A. Wilson.
I jn applications of strict technical right it will
L be assumed that ail affidavit made by "the
nt" of ft person is by his profee^ional Toronto
iml: and that such person is a practising
orooy. /.'-.•</'> V. Fohn, 4 P. R, 24(5.-1'. C. -
■trrison.
Ilhc agent of a s(dicitor has a lien on the
lera or on a fund recovered against his
ncipal, and to the same extent against the
hncipal's client, and such client is justified in
jina tho agent so as to discharge such lien
obtain nis p-ipers. Re Cvom, 4 Chy.
nb. 11. -Taylor, Rejerti:
here the client had paid the Toronto agent,
J retained the bulk of the funds recovered on
ount of his agency bill, and offered the prin-
»1 the balance, who refused it and issued exo-
pon against the client for the whole amount ;
1 execntion was stayed with costs. Ih.
he agency charges in this ease were wholly
(work in' the suit in which the client was a
.v; Sed qua-rc, would the solicitor's lien attach
\m amount of his agency bill generally. Ih.
.1(1, that the "two clear additional days to
ftime now alloweil by law" for service on the
■tnf a country attorney under 34 Vict. c.
t> 12 0,, means the iiwertion of two days
Irt'tii the day of service and the day of the
euint; of the event to which the notice re-
yordhmiKr V. Sliair, C P. R, 14. -C. li.
nk-Dalton, C C .l/\.Oalt.
! In re Mcl^mim', 15 (!. P. 54, p. 2!)4 ; '/'</(/-
A. ,(• «., i L. J. N. S. 300, p. 307 ; if<-
r(«N, .') P. K. 132, p. 307; Utri-y. Toms,
; B. 42;{, p. 303 .- /.''■ (icddcx mid Wilxuii, 2
i Chamb. 447, p. 325.
action afterwards brought by tho attorney, and
ordered the attorney to pay tho costs. Stephen-
soiiv. Mct'omhs, 1 Q. B. 456.
Sheritfs recommended to take precise written
eng.agements from attorneys when they mean to
hold them liable in cases they have nothing to
do with except professionally, though the court,
where the attorney lias verbally agreed to indem-
nify, if the agreement is admitted, will enforce
it. In re CuiTiM v. O'Relllj/, 8 Q. B. 130.
H. having been arrested, his attorney gave the
sheriff an undertaking to put in bail, which was
not done. On the application for an order to
compel the .-tttorney to pay the debt and costs :
— Held, that the facts set out in the case formed
no excuse. Inn- Baby v. O'Connor, 2P. R* 203.
P. C. -Bums.
A party .alleged that ho wa.s induced by the
plaintift''s solicitor to allow his name to bo used
as " next friend," on the assurance that he would
not be rendered li.able to costs. This the solicitor
denied. It was considered that such a fact could
not be established by ex parte affidavits. Bur-
r/fun V. Miinid, 2 Chy. Chamb. 43. — Mowat
See Fleminij
In re IlarrUon,
Duncan, 17 Chy. 76, p. 321
.1. ,t-.fi., GL. J. 91, p. 307.
\h
M
.1.1
I'M
I'WKEEUINCS Ai;AIV.>*T and lilAUII.lTV OK.
1. On Cndrrtakinijii.
lerc a declaration in ojeotmeiit ha«l l)oen
1 un a wrong party, and the plaintiff 's
ey wrote to the attorney of tho person
ughtto have Itecn served, that if ho would
I trial no action for mosno profits shoulil
might against his client, if the plaintiff
|il Ik,' successful - the court stayed such an
2. Acting without Author it i/.
(a) Production of A uthoritij.
\ plaintiff and defendant having settled be-
tween themselves without paying the costs, the
court i-efused to make the attorney produce his
warrant in an action instituted against the bail
to recover those costs. Shankland v. Scantkhury,
Tay. 231.
Upon defendant's application in the suit, pro-
ceedings will bo stayed till the plaintifl's attor-
ney files his warrant to prosecute. Rohc, v. Reid,
1 r. L. Chamb. 98.— Macaulay.
Aiitl where in such a case procccdingB hod boon
stayed on defendant's application, and the war-
rant was not filed, the attorney was ordered to
pay the defendant's costs of defence and of
staying proceedings. Smith v. Turnhnll, 1 P. K,
88 ; Sliam v. Ormiston, 2 P. R, l.')2.— P. C —
Draper.
A defendant in equity has no right to call
upon the plaintiff's solicitor to produce his
authority for using a plaintiff's name ; and par-
ticularly where no improper conduct in using
such name is ixtsitively alleged and voritied.
Chiiiholm v. Sheldon, 1 Ohy. 294.
(b) Liahilily.
The court refused an onlor to an attorney to
pay the costs of a suit on a Iwiul to the limits,
where he had signed tho name of one of tho
obligors and executed the bond on his behalf on
a mere parol authority. Leonard v. Olcndennan,
])ra. 2.32.
Where a defondant swore that no proooss had
lieen served on him, and that an attorney had
appeared for him without authority, the court
ordered that the attorney should file an affidavit
Rcoonnting for his entry of apiicarance. Weir
//(my, H. T. 4 Vict.
:n y!
, ' M
' 1 ;1
\m
299
ATTORNEY AND SOLICITOR.
'30J
III
And the court in the following term set tlio
proccfiilingH nHido, iiml or<lt;rcfl tlie attorney to
pay ftll coHtx. Ih. 1 (J. B. 430.
In tin nutinn agiinst an attorney for diHcliarg-
ing ft debtor in custody on a c.i. sa. witlioutany
authority from tlu- iilaintitlH, the damages are
discretionary, and <ti8 not incumbent on the jury
to give the whole amount of the debt. Brad-
liiirifft a/. V. JttrriM, I Q. B. .SOI.
Whore an attorney had utied the plaintiifa
name without his consent, lie was ordered to
rcpiy the plaintift' the costs which he had i)aid
to defendant on failure of the suit. Hiii'lrrion
V. MrJIalnm, 12 Q. B. 288.
Where proceedings had been stayed until the
attorney hied his warrant to pnjseeute, and the
warrant was not lilcd, the attorney was <jrdere(l
to pay defendant's costs of defence, and of stay-
ing proceedings. (S'///(7/( v. 7'itnihiill, 1 1'. R. 88.
Sfirtir V. OrmUtoii, 2 P. R. 1.52.- P. C. Draper.
Defendant being tenant was served with a
writ of ejectment, which ho handed to H., his
landh)rd, and H. took it to his attorney, who,
instead of getting leave for H. to defend, entered
an appoiirancc in defendant's name withimt his
authority. .\ verdict having been olitained
against defendant, the judge refused to interfere,
but left him to his remedy .against 'his landlord
and the attorney. Monti) fl aJ. v. Srlii'niirr/inni,
2 P. R. 2G1. - (Jhan»b.-Burns.
Where an attorney without authority appears
for defendant, the court will not set aside the
i>rocecding8 if the attorney is solvent, but will
leave the defendant to his remedy by summary
application against the attorney. If the attor-
ney be insolvent, the court may relieve defend-
ant on equitable terms, if he hris a defence on
the merits. >Vhcro, however, it .appeara that
the suit institutcil against the defendant is
brought by oollnsion between plaintiff and
defendant to enable defendant to cheat his cro<li-
tors, a judge will not interfere summarily to
remove the appearance, and thus assisit the par-
ties in the per|Xitration of a fraud. ]{'anl.if v.
I'oa))*/, 7 1'. -F. 2!>4.('. L. (.'hamb. - McLean.
Where an fittornev without the knowledge or
consent of plaintirf brought an action in his
name, relying upon an .assignment of choses in
action from the plaintiff' to the client of the attor-
ney, and the right of the attorney under the
assignment so to use ])laintiff 's name w.as very
doubtful, an order was mode to stay the proceed-
ings until the attorney or his client should in-
demnify the plaintiff against costs. K/limn v.
KIUmoii, 9 L. .). 245.-0. C— Hughes.
PlaintiH' suoil defendant for having caused an
appearance to be entered for the defendants in
an ejectment, brought by plaintiff ag.ainst thcni,
for land assigned to plaintit!' un<ler process
issued in an action of d(»wcr against this defend-
ant, alleging that he hiul rlone so wilfully,
wrongftilty, ami witiiout the consent, knowledge
or authority of the defendants, but not charging
malice or want of roasonable or probable cause :
— Held, on demurrer, that the declaration w.as
ImmI on this ground. .Seinblo, that dcfoiidant
and his attorney would, on sueh a declaration,
1mi liable to the defendants in the ojoetmcnt
unit ; and that (the dcfcnd.-utts therein being
. & A., partners, dissolved liai'tncniWJ
ig understood that li. should Ikiv the ddol
worthless) he would also be liable totin' iilajniij
for the'costs of that suit, on a summary ii|mlicil
tion to tho court made therein. FUhir v. //,,/,;,, \
17 C. P. 3!),-). '
Wlierc a 'solicitor in (Jhanccry pinvliii.»(,i I
widow's right to dower in all tho lands nf ^\^
her husband was seised during her eovcrtm.!
taking from her an .assignment thurcnf, aiK], I
power of attorney to use her name in
therefor, six years after the death of lier hnJI
baud, and several years after the imivliiWftiijjl
a bill in her name to have dower assigned tuku
in a particular jiortion of her late linslianj.l
lands, not nuticing the sale to himself, tlio u(Jin|
on the application of tiie widow, ordered tlitijjl
to be taken off the tile.x, with tlui vmU \„]\
paid by the solicitor. Mn/crK \. I,iil;e \ (i,l
.30.5. ■
Where tiic plaintiH's solicitors madi; n i^f.,
plaintift' without being iu.strncted by liim j^-
name was, at his instance, struck out Of tlitw,!
ceedings in the cause as a plaintif)', w jtli cd^J
be jiaid by the solicitors. Miller v. //;//, 4 1
N. S. 78. — Taylor, Strnftir//.
}'■
being uniicrsiood inai i.. snouui Ikiv the (|(|«|
itc. 'i'here had been ill-feeling aucijlitigatidnl,
tween them, in which the attorney liiuliiitaiii,
I* The attorney being authorised t(i .ut for J
W. & Co., creditors of L. & A. for a miiiiiini
jjWOO, applied to L. for iiifonnatioii iustimin
creditin's of the tiriii, whose names ]w iniglit j
in t>rdcr to put L. & A. in insolvuiny. Lh|
bini to use the names of K. & I>, of Ij,
U. S., stating tli.at they would .igiee tnriJ
he, L. , said, (hi the 3ril of May, lS7:i, tlioi
torney served a'dcuiandon A. in tho muimmII
W. A Co. and K. k 1)., re(|uiving tliomtnii
an assignment in insolvency, and mi tlio
day he wrote to K. fc D. asking foitht-irs
tion. They made no answer ; and A. Iwn
gone to Rochester aufl settled tiieir claim, 1
plied to set asiilc the demancj. Tliuatlci
thereupon abandoned tho proccediiigHaniii
A.'s costs. On a motion to strike tboatto
off the rolls for this, on affidavits .ittrilmtiijl
conduct to in.alicc : — Held, under tin cini
stances, which arc more fully sot oiitintl»J
port, .and m.alicc being expressly denied, i
the rule should be iliscnargcd ; hut iistlicii
ney had been indiscreet, he w.as flii'citwhi|J
the costs of the .application. In v An .I'/m
34 Q. B. 24C.
Entry r)f apiiearancc without autluirih
ap.
ot
Six PkACTHK at \,S\\.
Sec MvLniH v. (I'riiiif, 20 Cliy. /li. p, ,'ll|i|
3. /'''»' Xiijliiji III! ,
(a) III ('oinhirl of ('iiii-tfs or lyi^i-lmoj.
t\ note having l>cen given t^i an iittm
collect, lie commenced a suit upon it, vhhil
aftcrwai-ds rcfcrretl, and the note wiit tnCii
whoro the arbitrators met ; no aw.inl «i<^
and the note was not afterwanlH to \ti
The attorney then proceeded in the ai1«|
on the trial, Jilic note not lioiiig |4*i
or evidence given to prove its ]nw,a«
was taken for the plaintiti', siiijjwttollKf
|tclaratinn is sii/fjcient
•^.V dufciidant's iiegligei
"• ymiv. 1)11,,,,,,,,^
ATTOPtNKY AND SOLICITOR.
302
kieiit
)1
tiie court, who ilirectcd :i new trial on pay-
i,t (if cost!) ; Init as tho costs were not \>n,u\,
]^. fur iv nonsuit was matU'iilwolute : Held,
t tiio ttttoiiioy was liable as well for ne^li-
.. i„ „ot iHodueiny the note, or not having
lacnce prepare.! to account for its alm-nee, as , .^^^^ ^,,^^. ^^. ,,^^,j j-^^^.^, released, and if not,
the .lauia«e» an.l costs nieurred by the plum- 1 ^K j^^,,^. execution. 1 )efeudaut issued the exe
i.„ r,,asoii of the nonsuit. (,, ■„,:,■ v. <,„mhte, ^^j^j^^j without having made a sutHcient search,
of defendants and the damage sustained by the
lilaintitls were sufficiently stated, nennrr il nl.
V. Jiiir/im it III., 13 g. Ii.":i87.
„ „ . ^1 . i. 1 -•- I The idaiutiir employed defendant to ascertain
m not inoduein« the note, or iiot having !^^,,^,^, J,. .^,, „ld judgment obtaiiie.l by iiini
rby reason
[o. S. M\.
\ 111 tiiis case the court discharged the rule for
i '' , ^,.i.ii, upon the plaiiitiH's attorney under-
LiL' tlint the pUiintitr should givt^ the attoiiioy
kthoiitv to proceed on the note in iii.s (the
Will ») n'"'"^'' "" *''" f'"'"^'' ""'li'i'takiug to
dciniiii'y the liittcr af,':iiiist tlic costs of such
bun. /''•
I W'bero iiu attorney was retained to aoply to
IkftaiMislieritl' fioniaii attaclinieiit, ami the jury
imiil him in fault '" conducting the application :
MeW that he was i: ible to nominal damages,
boUKli the siTceial damage laid was not proved.
WiLfOil V lioiillon, 3 Q. B. 84. See /htini v.
lW<r«,llC.I'.42.S. p.
30.-).
IVhcrc a promissory note \yii8 given to an at-
„,, tu get the amount of it secured, and the
^lev subsequently said he Mdiild pay the
out ill a few days, and an action was after-
thougli the plaintitl had in fact released the
judgment, whereby the plaintiff was subjected
to an action for damages at the suit of W.
Hefore the sherill' had seized he informed the
plaintiff that ^V. asserted the judgment was
released, and plaintiff tohl him to goon with the
levy : -Held, that these instructions by plaintiff
were not necessarily u discharge of defendant,
but were only a matter in mitigation of dam-
ages. o'Jiiinii- v. Wilioii, (i c'. 1*. 3t}(i.
Declaration, that the plaintiff' employed 1(. &.
J., the defendants, as attorneys, for reward, to
prosecute a certain action against one \V. : that
judgment was recovered, and the plaintiff then
retained defendant.^ to issue oxeention : that
the lantls of W. were sohl under such execution
by thesherilVto .1., one of the detuiiuants, yet
lefendaiits did
that defendants did not require .1. to pay the
purchase money to the sheriff, although at their
„,.. . . , , recjuest the sheriff conveyed the land to him.
[U brought against him for negligence in not I i,i,t as such attorneys discharged the sheriff from
oiithenote, with a count for money had and sjvid money, which ha<l not l)een paid to tho
HvimI: Held, that neither count was sup- i j,inintiff : -Held, that a good cause of action was
j,l liy the evideii.ie. I)i<iimiii v. Iii„illn„, ! shewn. /'lillH/is v. />,iiii>.s,'i/ ,-l a/., 18 Q. K 177.
. „. I The plaintitt sued an attorney for negligunue
rctiiinod B., mi attorney, in Kingston, to , j,, conducting a suit for him. alleging that»fefen-
i„l him in a suit to be tried at Perth, and ; .i^nj pleaded an ir " "
improi)er defence, neglected to
subpiena witnesses, or to instruct counsel, but
acted as counsel himself, ami did not apply for
an amendment required, or offer to prove pay-
ment, defendant pleadetl as to the allegation
that he' dirl not instruct counsel, but acted tis
such himself, that he was a V>arristcr, and that
the plaintiff iio\'er objected tf> his so acting ; and
he demurred to the allegation that he did not
., V • f « • 1 • 1 I while so acting apply to amend, or offer to prove
icgligcnce at the suit of A., in not himself] payment, on the ground that for his conduct as
nc 111) » '"■'•-'' 'V'"' ''ehvcring it to C. i counsel no action would lie. Plaintiff demurred
iliiy, .1., diss, km III'!/ V. .1 i-nislnmii, 4 Q. i t„ the plea as no answer : -Held, that the plain-
till' was entitled to judgment, for the defendant
by iu:tiiig .is counsel himself could not escape
liability for neglecting as an attorney to give
proper instructions. Iji'xlit- v. Bull, 'J'iQ. H. !M'l.
i the trial A. went to Kingston, where B.
J hiiu that he could not go to Perth in this
Muit, Imtthat C, a barrister at Perth, would
L(l to it, and that A. had better see him.
IbumIc no objection, but went to Perth and in-
etcil C, who conducted the suit at the trial.
Biiiinai verdict was given against A. No
jlaiiit was made that V. mismanaged tlie
I ill any way :--Held, that B. w.is not liable
lile, that an attorney would not be liable
nlpblc negligence, in not urging for his
ttnetlefcnee that the agreement sued iipcm
lade on a Sunday, as it is no part of his
isional duty to take all dishonest advaii-
\'»il v. Diiijiinii, 7 t^. B. .'iliS. See, also,
► v. Sifimmn, 7 Q. B. 541.
Jfcliiratioii is sutiicient in stating generally
%) ilcfcmlnnt's negligence the plaintiff lost
Yn'il v. Diiiniiin, 7 (i>. B. ,">(i8.
! against attorneys cinplojed by the plaiii-
|ir not taking a confession of judgment
i., their debtor. Plea, that after tlie ro-
( auil liefore the alleged default of defend-
Mthe iilaiiititi's, without the consent of
Vuts, with other creditors, miule an
Miicutwitli L, by which he assigned all
vts to H., one of tho iilaintill's, and
r iwrsoH, to be disiiosed of in paying
(iilitoiD as'shoulil eoucur in this :— Heltl,
^urar, (tleagood. Hold, also, that in tho
Itiiiii (set imt in tho i-cimrt) the n^tainer
Qua>re, per A. Wilson, .r., whether, consider-
ing the union of the professions in this province,
and the right of counsel in some cases to recover
fees, the same exemption from liability can 1)e
claimed here as in ICiiglaiul, even when the same
]^>erson does not act in both capacities, /fi.
B., an attorney, was employed to prosecute a
suit against M. , who was arrested and discharged
without bail, and the writ of eapiiw and all pro-
ceedings set iiside lor irregularity. Upon an
action against B. for negligence : — Held, that
the production of the order of the judge sotting
aside the capias was not sutticient evidence to
sustain the action ; but that the negligence must
be gross, and evidence of it must bo given.
CliaiHiiiiii v. lioiiUbi-i; 13 «J. P. 37-'.
The plaintiff, in his second count, stated, that
having retained the defendants to prosecute an
action against one (i. for o, deht^ they took a,
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303
ATTORNEY AND SOLIfJITOR.
uoiifosiiioii of jutlgmcnt, niiil delivycd to Uhuu
execution thereon for ttonie niontha, whuruljy the
ulaintilf was dainnitied. Third count, for money
had and received. The evidence went to shew
that between the time when the plaintilt' wwi
entitled to execution, and when it was isHUcd,
a writ of one B. was placed in the shurifTs hands,
against U. and settled. It was also shewn that
ii. hod, during the same period, made chattel
mortgages of his property, of whicli defendants
were aware. One ot the defendants, on being
called, stated that O., having recovered a judg-
ment against one K., garnishee proceedings were
instituted in the suit of plaintiff against (•., and
of defendants against (}., and .J. & L. against (!.,
in respect of 1^'s debt ; and that orders under
ganiisnment proceedings were made in all these
suits against K., but l>!/ mutakv of uiw «</" the
dtfeiK/aiitu' clcrkii the ijlaintiffs execution was
K laced first in the sheritTs hands. The lands of
;. were duly otlvertised by the sheriff in suit of ( }.
against K. , and in the garnishment proceedings,
and subsequently, he was instructed by defend-
ants to withdraw the advertisement, and take
no further steps, as K. had settled the lunount
due. The plaintiff's writ on the garnishee order
against K. 's lands was retunied expired ; during
the currency thereof no instructions having been
given to the sheriff'. A receipt for ^20, signed
by defendants, was put in, intituled in tlie suits of
plaintiff against O., and defendants against (i.-
K, garuisliee. A verdict having been found for
plaintiff on both counts : — Held, tliat there was
evidence to go to the jury to shew that if defend-
ants had issued execution as soon as the plain-
tiff was entitled thereto, he might have recov-
ered his debt ; and the defendants knowing that
G. was disposing of his property by chattel
mortgage, &c., it was a breach of their duty
not to issue plaintifi''s execution. 2. That as
defendants obtained and had the lieneKt of the
settlement of K.'s debt, and as it was admitted
the plaintiff's writ had priority, it was the
duty of defendants to see that he did not lose hia
priority; and if their duty conflicted with their
interest, they should not be allowed to sacritico
the former to the latter. Sweetman v. Lfiiion
and Pftergon, 13 C. P. 534.
Plaintiff obtained a verdict against attorneys
for negligence, in not having procured the attend-
ance of witnesses stated to be material at a trial
1)etweeu plaintiff and another, in wliich plaintiff
failed. It did not appear, however, that the
evidence of such witnesses would have produced
a different result, and defendants' leading counsel
at the trial in (question had decided upon pro-
ceeding without such evidence. On these Krounds
a new trial was granted. Wade v. Halt ct nl.,
20 C. P. 302.
Where an attorney, lieing employed to get a
judgment of non pros, signed against the plain-
tiff' set aside, applied through his town agent for
an order for that purpose, which was granted on
the 16th June, but the agent neglected to take
out the order until the 2^d Octolmr following,
in consequence of which delay the order was set
aside and the judgment allowed to stand :-
Held, that this was negligence for whicii the at-
torney was responsible, and that it was no de-
fence that he acted under the advice of counsel.
Jlerr v. Tmhs, 32 Q. B. 423.
Where a solicitor incurs useless and unneces-
. aary costs by instituting a suit in Chancery within
the jurisilitition of the County Court, the n^i
])lus of the costs in ( 'liancury over thu liif^^^l
Court tariff', will not bo ullowctl to liiin iigjiul
liis client. J{i> llnrdii, I'lmlv v. I'ihiIi, \\n.\
Chainb. 17!).- Boyd, Mmtci: '*
Where in sucli a suit the costs in ( 'liani^i
had l)een disallowed in toto Ifctwccn tliu ijarti»|
the Master allowed the plnintilf's Kulkii^l
('ounty Court costs, the client Imvin;; (Icnul
Honic )>eiietit from the suit. / li.
(li) In /iii'mlii/iitiiiji TillfK mid Ifi'ti'"'''''"!'! luM
iiinitn.
Plaintiff in 1854 employed defuiulant to «
amine the title to certain lands, and tiH>ka,|t,
Afterwards it was discovered that in \Kt\iu
tion had l)een sohl for taxes, Imt wlien;
plaintiff' purchased he had still a year ti)mli4.
In 18>'>7 tiie sheriff' made a deed to tlu! purduugl
-Held, that defendant Wiis not lial)le. //,«
StriUhj/, 16 Q. B. 430.
Declaration for neglecting to register ,i i
gage for ten months, and until thu niortu,
liad executed a subsequent mortgage tu utheri
sons, which was recorded Ijcfore tliattdtheii
tiff. Defendants pleaded, 1 . That the i
was by law entitled to certain fees before li _
ing any deed, its the plaintiff' well knew;!
he never furnished them with any money ttd
the same ; " and so the ilefendaiits say, tki
said mortgage was not registered Ity tiler
or by the defendants for tiie default of tlie'ii
tiff' in not providing the deienduiit.s or saiilii
trar with any sum of money to i)ay thti
registrar the fees alloweil to him l)y hv ki
istering the said mortgage." 2. That after li
the plaintiff accepted from l>. anotliur uion
(mother land of D., iis security to the plji
for £750, in full satisfaction and diseliiQ
defendants' promise and all daiiiagea aw
the plaintiff from the breach tlieruof :-HeH
demurrer, svcond plea good, it being im oij«i
that the accord was by u third iierson, ad
to the action. I'er McLean, .1. The lintl
was l)ad, for the retainer 1>oing adniitMl
plaintiff"s omission to furiUHli money frni
excuse, without notice to him that ItHasmid
which defendants shoulil liave averrtil (
Hugarty, J. The plea stated that the now
tration was causeil by the phtintitt's ue^
furnish fees which he knew were necci
it therefore could not l>e lield Wm\ fo-rj
being absent, and the court tlnis t'(|uall<
no judgment was given on the ilemumrlj
second plea. Lipirhv, Wilson il <il.,iHi.l
An attorney having been emplnyeiltoif
a mortgage of £250, withheld tiie niott^
he recovered and registeie<l a jml^iweBtl
against the mortgagor, iiiuUr which lk|
mortgaged was subseiiucntly sold :-H(l(
an action for such negleci liemg aidistiiilir
a breach of contract, was inaintaimblet
shewing actual <lamagc, and a nonsuit i
could not be entered. While the ca««
<ling, the jjlaintiff', upon payment nf
charged the mortgage on registry, anJ J
prevented the court from doing siilisti
tice ; a new trial was therefore or>lei«ii»
as to the mala or 1x>na tides in oht«iniii;|
charge. Quwre, would not the mm
! Durlhi;/ V. Wi'lk
(e) W'hm a JJc/rm
to, under such ord,
''?'*,'"« mmry as
n through the allc,
I8e(ltotho8olicit,.i.
P>f before commenci
PVnstrument on wh,
P'' t" «'hich he is
ATTORNEY AND SOLICITOR.
?0»
_.„..♦ with intercut, costs, 4o., bo the inea- ,
KfSmagcs. Doan v. Warren, 1 1 C). I'. 423. |
f here an attorney receivcHl nionov to invest \
ZaI estate security : -Held, that ho was la-
fj the want of reasonahle caro as reKarileil
llhiL. of tlie security, not merely in tlie ex- ;
Cion of the title' I'.tn: v. \V,-lhr, 30 1
.4. !
,/)«Wmr/v. \V<lln;'n(i. 15. 3(53. p. 31a i
(c) H'Af" " ■/>/'♦'"'■' '" (^'f»i»'/">' ('('"I"-
a,, action l>y an .attorney for his costs,
llnrv having found for ilefenrtant :— Held,
the facts set out in the case, that the
icc did not 8upT)ort the verdict, for the
ant had obtftine(l a judgment against M.,
might yet i)n>duce the debt, and it could !
said that the plaintiff's services had by
igliirence iMsconie wholly worthless to do-
t, A new trial was therefore granted.
Je that if defendant had lost all iKsnefit
his action by its not having been tried in
the court would not have interfered, for
nrnev, in refusing to issue new subpa'u.as
the circumstances stated, might be con -
red to have taken upon himself the risk
iqucnces. ndal v. Donald, 20 Q. B. 307.
itn action by an attorney for his costs, ncg-
msy he set up i^s a defence under the
issue, lb.
jtrc services charged for by an attorney
ftenuired only in consequence of his own
ke or neglect, which a careful person would
ve been likely to fall into, and not arising
_i error in judgment in a matter affording
[fcr doubt or dirticulty, he cannot recover ;
ich :i defence is aviiilable under the gene-
le. Bimtham v. Burns, 21 Q. B. ,34!>.
ie conunon order by a client to tax his
It's liill. the master may consider alleged
Bce of the solictor as having occasioned
kor rendered it useless, and therefore a
for disallowinc the whole bill, or as
and a ground for disallowing parts.
IV. J/i/Wfii. 13Chy. 104.
;ee instructed his solici^-or to proceed
[mortgage. The solicitor omitted to
the owner of the equity of redemption
pon of the property, a party to the suit.
ng portion having been sold under
(in that suit, the client wjis benefited to
lent by the proceedings therein, although
dy ogamst J. was gone. In taxing the
I biu under a common order obtained
ilient, the master allowed the costs of
ngs ; and on appeal to the court,
uphem, Thom}Mim v. AfillUrn, 15
later, nndcr such order, has no author-
btute an inquiry its to loss sustained
pt through the alleged negligence of
W; and the costs of such in(|Uiry ean-
irgedtothesolicitoi-. fh.
ktor before commencing a suit should
pe instrument on which it proceeds ;
I of its loss, should use due diiigenco
% to the nieuns of infurnmtion oiieu
Ml to which he is roforrcd hy the
client. Where this duty had been omitted, and
the instrument had in consecpicnco l)ccn not forth
so incorrectly in thttbill that the proceedings wero
useless, and hud to Iw abandoned after decree,
the sfdicitor (though he had acted in good faith)
was held not entitl(!(l against his client to the
costs of the suit. Roe v. StatUon, 17 Chy. 389.
On a motion to have the costs of an intcrplv-
dur issue paid out of moneys in court, costs of
the motion wcro refused, and the solicitor was
not allowed to charge his client any costs, as the
motion was rendered iiecc.isary by his fault or
oversight. Macdonnltl x.Carrvdl. 1 Chy. Chamb.
14.5. VanKouglinet.
See //) re ToniM and Mourv, 2 t'hy, Chamb.
.381, p. 308 : /« re A .11,8 L. .1. N. S. 21, p. 330 ;
Lynch v. Wi/Mn, 3 P. K. 10ft, p. 333 ; Sranlan
v. .McDrwnmih, IOC. P. 104, p. 3.30.
(d) Ollur C'(Mt«.
Under 8 Vict. c. 48, the right to sue an attor-
ney for negligence vests in tlie assignee of an
insolvent plaintiff. Ali'.randi'r v. A. ll. A-C. />.,
.-» Q. K 32i».
In an action against defendants' solicitors, for
investing money on insuttteicnt security, one of
the defendants having made an entry or memo-
randum of his instructions iu the presence of the
plaintiff and 11. , offered it as evidence of the
transaction :--}IcM, that it was j)roporly re-
jected. A new trial was granted in tuis case,
on the ground of excessive damages. Phelps v.
Wlhon ,t al., 13 C. V. .38.
4. To Summary Jurisdiction.
(a) For not Paying orer Moneys.
Where a rule nisi for an attachment for non-
payment of money had lapsed, the court refused
to renew the rule without a fresh affidavit. Roy
V. Delay, Tay. 9.
An attorney of Q. B. practising in a District
Court, m.%y be attachca for not paying over
money received for !iia client. CarrnlherM v.
— -, Tay. 243.
An attachment w.is refused, to comj)el an attor-
ney to p.ay over money which had in fiict lieen
forwarcled, but lost by accident. RadcH[}'e v.
Smalf, Tay. 308.
Where a rule required that the money should
be paid within a month after service, an attach-
ment was refused, no copy of the affidavit of the
execution of the power of attorney under which
the money h.ad iieen demanded having been
served, and the affidavit of non-payment stating
only non-payment within thf month, but not
after. Brewster v. McEmn, T. 8 Vict.
The court will not order an attorney to pay
over money which has l)ccn attached in his
hands as the property of an absconding debtor.
Clark v. Stover, T. T. 3 & 4 Vict.
A. being indebted tor costs to an attorney
who owed him for rent, it was agreed to set on'
the rent against the costs. A. afterwards sued in
the Division Court for the rent, but was defeat-
ed, .and he then obtained .a rule nisi on the
attorney to jjay over the net amount The rule
ni
u-sr-
III
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ii|
'^
307
ATTORNEY AND SOLICITOR.
WM diicharged, with ooaU. Elliott v. /Joint*,
I r. R. 64.— Ghftmb. -MuLoan.
A I'ulo niai having bocn obtaiiind on an attor-
ney to pay over to CharleH Edward Hatherley a
Miim of money, it was objected that the name
waM not Charles Edward, but Charles Ednnmd :
Held, that the objection must prevail, /n re
Latham, 1 P. 11. 91.— Chamb.— Draper.
An attorney received from his client a note for
£fiO, costs in throe suits. The client being sued
for this note in the name of one W. , apparently
a nominal plaintiff, paid £29 and gave a coufcs-
■ion for the balance. The bills were afterwards
taxed at £24, and the court then ordered the
attorney to refund the amount overpaid. In ir
one, i-c, on the complaint of Coloorn, I P. H.
208.— P. C— Draper.
The court will not attach au attorney for not
paying over money received by him as an agent,
and not in his professional character ; but if
from the circumstances, it appear that he k not
trustworthy, ho may Imj struck off the roll.
In re Hamilton v. O'Jieilli/, I Q. B. 392 ; S. ('. 2
P. H. 198.— P. C— Jones.
A rule nisi for such attachment should not be
granted on the last day of the term, but if so
granted it may be acted upon afterwards, lb.
Qun>ro, aa to the effect of loaning to an attor-
ney money in his hands for his clients. Where
the fact of such loan is disputed, an undertaking
signed bv the attorney to hold the money as
money collected for his client, and if not paid by
a certain dav, consenting to an order to pay it
over, will be enforced against him, and the
usuaJ order will Imj made. In re Harrisnii v.
A. diB., AttorneiiH, (5 L. .T. 01. -C. L Chamb.—
Richards.
Where T. having a claim in the Division Court
against a resident of Belleville, sent it to McM. ,
an attorney in Toronto, for collection, who sent
it to A. & B., attorneys in Belleville, and the
clerk of the latter collected f20 on account and
sued for the remainder in the Division Court,
and afterwards B. arranged with a third party for
the payment of the balance, it was hela that T.
could not make a summary application against
A. & B. for the payment of the money, but that
McM. must apply. Taylor v. A. <(• /?., I I^.
0. -P. C.
J. N. S. 300.
-A. Wilson.
Thompsons. Billing, II M. & W. 361, remarked
upon ; tne practice therein allowed aa to proceed-
ing on a demand of money from the town agent
for a country attorney without giving time for
correspondence between them, thought to bo
unreasonable. In re Robertson ft al., 5 P. R. 1.12.
— P. C. — Morrison.
The proper proceeding against an attorney for
mere non-payment of money pursuant to a rule
of court, where there are no special circumstan-
ces Bhewins fraud or dishonesty, is by judgment
and execution under C. 8. U. C. c. 24, s. iB, and
not by motion to strike him off the rolls, nor by
attachment, lif CampMl, nn Attorney, dr., 32
Q. B. 444.
Under the Imperial Act, 32 &, 33 Vict, c, 62,
8. 4, sub-s. 4, attorneys ordered to pay money in
that character are excepted from tho general
rule, and may be attached as before. I'hcro is
no such exception in our act. lb.
A solicitor is liable to account for iiiunmiJ
securities on sunnnary application, althougbt
may iiave uoiiio to his hands as an at^eutforu
owner, and not strictly as solicitor oi' attoriinj
or involve any duty as such in the lioldinnj
poHMcssioii of them. Rt Carroll, 2 Chy. C'tuiiJ
323. See also Re Walker, 2 Chy. Cluuil), ^l
—Taylor, Seeretari/.
The Court of Chancery will order HolicitvnJ
pay over moneys of clients in their lut^l
Whore, therefore, it was shewn that a client m
paid his solicitors, $1(800, to carry out auimI
ment to purchase entered into by hiui, audvbi
they untruly informed him they had \Mi x
court, they were ordered to pay tho wiiourtL
ton days. In re Twns ami Muore, 2 Chy. ( 'lujj|
381.- Taylor, .SVfrf^nr*/.
It being shewn, also, that a ImII I'ui su,
performance instituted by them um his aolioitti
to enforce said agreement, had I)Cimi diiiiua
with costs for want of prosecution, (iwiugtol
default of said solicitors, the costs mo pud |J
not included in the alwve-mnntioMcil order, li
the client was left to his action. So alwn
respect to money paid tu tho vendor and loit j
the negligence of said solicitors, and iiionen
to tiieni on account of their own cohU, v>.
Mortgages were delivered to a Huliuitorhyk
brother for collection, and the uiorey coUm
A dispute arose as to whether such solicitort
alone responsible to his brother, or wliethal
solicitor's partner was responsible alHu. Onpi
tion of the client for payment, the Court rtfn
to make an order against tho partner, lioliiii
that tho petitioner Hhould l)c left to sue. /i{
Tomn and Moore, 3 Chy. Chamb. 41.--.Murt|
Hoe Crooh v. Crooks, 1 Chy. 57, \^. 311
(b) Afinoerinif AfidavilH,
Upon an application to compel itttonitpj
deliver a bill of payments and chugea, iini|
tion to a certain lot of land, and tu iuuwa|
affidavits filed in sup^Mrt of the rule, it appt
that there was no retainer of the tttornq^i
either of them, us such : — Held, that tbeaij
therefore, could not grant the first lurtoi^
rule; and that courts will not uallupduil
neys to answer affidavits upon an appli(
such aa this, the course to be purnueo b
dispose of that which relates to thciitit,i
then, if the circumstances warrant it, to ■
to strike tho attorney off the roll. Tiiemle^
therefore discharged. In re A'ci/"""'' 'M|
Henderson, 13 C. P. 262.
The attorney in this cose was called u
answer affidavits charging him with untnui
ments as to disbursements for paymciittloj
procuring money for witnesses. The court, i
the special circumstances stated in tlieciH
charged the rule, but ordered the sttumff
pay the plaintiff's costs of the apuliut^J
re S. , an Attorney, in the suit of Mcltm \. (4
bell, 14 V. P. 323.
(c) Strikinii off the Hulk
Application to strike an attorney off tie J
who had been admitted two yearn, f'f l*"*!
years absent whilst under artichs, anii r"
Uurt will not attach o
7' 7«™ tlio alleged
remedy by action.
m ' ^WEm
ATTORNEY AND SOLICITOR.
SIO
twhtnont itg»inst hit innatcr fur having iiii-
loporly Ktxnted « certificate «»f actual service.
Jh rule* refused on the grounil of delay, btit
, mMtcr made to jwy the coHtii of the apjili-
jtioT h >•<■ Ifolhmt, aa H. 441.
I An atturiiuy who had been nrdurud t>i \iuy the
■(« of nutting ftnide proceedinjjn in an action
Twhich 111! had acted without authority, after-
(It wrote a highly improper and unjuitillablc
HKf to thb chief juatice, impugning liia motives
L(he judginont which he had given and stating
he WAM actuated from personal and private
m of diHlike towards liim. The court di-
nraftbat a rule nisi should issue to strike him
ftho rolli; and no proper nor sufficient aimlo^ry
^Tinff been made, the rule was afterwards made
lolutc. Ill i-f Htrceu, M. T. 5 Vict.
iThc court will not attach an attorney for not
jing over money received by him as an agent,
nut in hill professional character ; but if
D the circumstances, it appear that he is not
jtworthy, he may Ihj Mtruck off the roll, /n
IjlmiUon O'Reiil!/, om; ,lf., I Q. K 392 ; S.
IJP. R. 198.-1'. t;. - -lonus.
cortificate of the dork of the court, on
jsh an application under the rule of court is
ie to have the attorney struck otT the rolls in
Aher court, Hhould shew the ground on whicli
VM atruck ofT. The application Hh<uild also
{{or A rule to sliew cause, and Hhould not be
( on the iMt day of term, /n rr Trewayne,
t P. 267.
■K Rf CnmMI, 32 Q. ». 444, p. 307 ; Jit Kei/a
iSiM ti Hniderson, KS C. P. 262, p. 308 : /»
S Atiomeij, 34 Q. B. 24f., p. 300.
(d) Othir Matici-f.
Ihcrc an attorney of the QuocnV Hench I
■kiaing in an inferior court has charged and I
Tjudge has allowed costs clearly not sanc-
■ l>y law, the Queen 'd Bench will punish
line or attachment. ffcc \. Whitehead,
I court refused to order an attorney to (uy
I of a suit on a bond totiic limits, where
1 signed the name of one of the obligors,
xecntcd the bond on his behalf, on a mere
I »uthority. Leonard v. Ohndtmifin, Dra.
(court will not attach on a charge of mal-
where the alleged conduct has been
r inadvertent, and the party complaining
In rr Stuart,
up directing, inter alia, a sale of the mortgage
premises, and that all judgment creditors should
lie served with the decree and made parties to
the 8uit ; notwithstanding this, however, the
solicitor, who was also a judgment creditor of
the mortgagee, proceeded upon his judgment
and was about to sell the mortgage premises
under execution. The court, upon a motion made
in the cause, restrained the solicitor from pro-
ceeding with his oxecutioii, and ordered him to
pay the costs of the application. nofxJwin w
IVilliamx, .IChy. 178.
The court will suA sponte, where the circum-
Htances appear to warrant it, take notice of thi;
conduct of its solicitors, and investigate matters
in which their acts seem open to suspicion. In
ri' Toms, in the matter of Si. C. Cameron, 3 Chy.
Chamb. 204. — Spragge.
The referee has no power to exercise summary
jurisdiction over solicitors. Such jurisdiction
can only bo exercised oii an application to the
court. Semble, when one memlicr of a firm of
solicitors has died, the summary jurisdiction of
the court can no longer be exercised over the
survivors, because such an ajiplication may
necosHitato the taking of the partnershipaccounts,
and the representatives of tlie deceased partner
are necessary parties. Hr
P. K. 21.— (Jhy. Chamb. -
L. tfc ..v., Soficiior*, (i
Strong.
I remedy by action.
5 0.
I court will not proceed summarily on a
liint of matters for which (if the charge
[true) the attorney might bo indicted ;
lly where the affidavits are contradictory.
^m v. Milkr, 1 Q. B. 250.
hlo, that the court may prevent an attor-
l««^ng the statute of limitations to defeat
fi'» just claim ; but not his executors.
1 1. Clint, 6 q. B. 640.
^•olicitor of a mortgagee in a suit of fore-
iijftcr a decree of absolute foreclosure,
*1 the mort^gor's interest in the prem-
mdecrecaopronounccd was subscquentljf
1 tnd a decree nisi directed to be drawn
The plaintiff, being owner of land, after hav-
ing created a mortgage thereon, emigrated to
Australia, and ho subsequently remitted money
to his accents in this country with which to pay
off the mcumbrance ; but, instead of doing so,
they applied the money to their own use. Sub-
sequently the holder of the mortgage, to whom it
had been assigned, instituted proceedings in this
Court to foreclose, to which suit an answer was
put in on liebalf of the plaintiff, but without his
knowledge or consent, admitting the alle^tions
of the bill, and that the full amount of principal
and interest was due ; whereupon a final order
of foreclosure was, in due course, obtained, and
the plaintiff in that suit conveyed to the de-
fendant A, for tho consideration of $1002, the
value of tho property ; and on the same day tho
defendants M. & S., as attorneys of the plaintiff,
convoyed tho premises to A., who was ignorant
of any fraudulent practices in the matter. Tho
plaintiff having returned to this country, and
ascertained the frauds which had been practiced
upon him, filed a bill against his agents and the
purchaser, A. : — Held, that the plaintiff, so far
as the purchaser was concerned, was bound by
the statement in his answer, and was not entitled
to relief as against him : that the fact of tho pur-
chaser having heard before his purchase that the
plaintiff had remitted money to pay the mortgage
was not sufficient to charge him with notice that
tho foreclosure was wrongful ; but, in view of
the fraudulent conduct of the attorneys, the
court made a decree against them for the amount
realized on the sale of tho land, and directed them
to pay the costs of the suit, including tho
costs of the purchaser. McLean v. Orant, 20
Chy. 76.
Sec VIII. '2, (a), p. 315.
i5. ForHhtriff'ti Feet,
An attorney is liable to the sheriff for fees on
executing wnts, and (or sennces rendered for
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311
ATTOHNEY AND 80L1CITUK.
him in oauiitts of Iiih olit'iit*, without nny Mpocial
iindortakinu. Jarvi* v. WaMurii, l)ni. 103;
Frattrv. Fetlcwei, 7 K. .F. 131. i'. ('. Arm-
Htronjf.
But not for poundiigo u{ion an uxuoutiou whiuh
tho attorney hiiH {ilacud in hix handit to he exe-
cuted. CorbfU V. MeKenzie, Q. U. 605.
oxucutorM having tuud clufc-iulant fur the muutti
MO reuuivud, ]M)riionM inturcittod in A.'h eiutil
nutiliud him nottopay ; but, Hulil, thutluvig,!
recuivcil tliL' niunuy on \V, '» utturney, IiuqmiuI
it iiayniunt to hin us
Milhv, 14 il H. «2.
0. Other V<w».
Where a hill had been tiled !i^'>.initt ai. attor-
ney in tho nflioe of an outer di»triot, and pro-
eeedingM hail thereupon to verdict and jud^nient,
tho court refuMcd to Met tliein aside for irregu-
larity. MiU-hill V. Tcnhroi'k, Tiiy. 12(J.
Where a bill waH tiled agaiuHt an attorney in
vacation, he had four davit in the next term to
plead. Mamiiadi/ v. Fosfer, Dra. 470.
When all the proceedings againut an attorney
subsequent to filmg the ))ill had been Hot aiiide,
and the plaintiff afterwards proceeded without
Herving a copy of the bill anew, tho court net aside
the suDsequent proceedings for irregidarity, but
without costs, thinking the objection had little
merit in it. Frnaer v. BotiUoti, 3 O. iS. 19.
Under 8 Vict. c. 13 s. 51, a writ may go to tho
district court to try an issue in which nn attorney
in a dnfcndont. Martin v. (Uiujnne, 5 (?. B. 245.
A demand of plea in an action against an attor-
ney must still Ix! served in term, or witliin four
days afterwards, notwithstanding the 10th rule of
tho new rules, and he cannot ne compelled to
plca<l in vacation to a bill and a demand of plea
nerved in the Hiime vacation. But where a bill
and demand of jilea were served in vacation, and
interlocntnry judgment was signed and notice of
assessment given on 2l8t Septemlwr for the
iissizes to l)c niSld on the 10th Octolier, and the
attorney did not move in chambers against the
proceedings, but gave notice of his intention to
move in court in tho f(jllowinu term on the 1 1th
October, and moved accordingly, it was held that
his application was too late, and his rule was
discharged. Ifakihct at. v. Boulton, one, ilr., 1
Q. B. 340. See, "also, Fraiter v. liouUon, 2 O. 8.
210 ; Cormack v. Radnihurnt, 1 Q. B. 391 ; Oibb
V. MiHtr, 4Q. B. 11.3.
To subject a person to the penalty of 22 (ieo.
II. c. 46, for suing out process, &:c., the attorney
.%llowing his name to bo used raust tirst be con-
victed. Rex V. Bidivell, Tay. 487.
An attorney will not be ordered to pay costs
duo by his client to the opposite party, unless ho
has positively engaged to rlo so. I!nxi< v. CnMrr,
3Q. B. 180. -P. C— Mclxsan.
It is no defence in an action against an attor-
ney for money received by him on account of
his client, that the judgment on which tho money
wa« paid was obtained through fraud of such
client. Wmanu v. Kinrj, E. T. 1 Will. IV.
An attorney is not responsible as for a frau-
dulent breach of duty, for an erroneous opinion
on a will. Akxander v. Small, 2 Q. B. 298.
One W., suing in his individual capacity, ob-
tained a judgment against M., and tho defend-
ant (bin attorney) after W. 's death rccoivod tho
mon«y. W. was the administrator of A., and
tbia jndgmout was for ront of A. '■ land. W. 's
inuney as \V , » attorney, hu c,||,|J|
not resist iiavment to his executors. ''Aar'TuI
rt at. V. ■
Held, that tho second count of thu ilccttn 1
tioii, set out in this ease, charging dcrumbnti^ I
as attorneys, with having entered judgincnttin!!
levied on ulaintifT for the full amount of a claim,!
without deducting a payment madi; ; and ti^l
third count, charging a levy on other j^iimli 11/1^1
enough had been seized, were JHith giii.l m miJ
stance. Htiilw Halt et ul., 15 Q. B. ,m,s
A phiintiff's attorney, aetim; uk i.i.iiiitiif,
agent, and arresting a defendant on luan^l
attiilavit, on a verdict being rendered ii((awl
him for a malicious arrest, cannot deduct tin I
amount of the verdict against hiinself fromtlil
amount received by him for tho plaintilf. /,r.
Hnntloii, ow, i('('. , Ri>nnud\. Brown, II' H (ill
1'. C. -Mclean.
Tho attorney for an execution creditor, jk I
who iiidomnitied tho bailiff who executed thciil
fa. , is not ros])onsiblo over to an ossistunt vhoil
the bailiff employed, for damages rccdvenjl
against such assistant liy a ]>erson wlin cliiodl
the goods seized. EaduHV. Z)oi(ya//, UC. I'.3k|
W. C. having tiled a bill to admiiiisicr til
estate of his father, obtained an injiinctional
joining several judgment creditors who u|
placoa executions .against lands of the dt)c«aidl
in the hands of the sheriff, from poceeiivl
thereon until a decree for administeriiiK tbe»|
tate could be obtained. After this, W. C,
the advice of his solicitor, sold part of theciUtl
and tho greater portion of the purcliMo moiKt|
was retained )>y the solicitor, u])oii which lil
claimed to have a lien for his costs. .\ deenl
Wivs afterwards obtained in the cause, iniju^l
the injunction ])erpotUHl, after which thenobl
tor advised the conveyance of a large iiortidiJ
tho estate to his (the solicitor's) imrtner, npl
certain trusts, whereV)y the eldest jinlgnll
creditor was (mtirely cxcludeil from .ill bcMtl
Tho agent of tho solicitor advised a ennveyiwl
of another portion of the estate to (nic of d
creditors, .and obtained from this crcditora|)
of attorney to sell, under which lie cuntriKtil
to sell several ixirtions of the lands so cunvtjs
and received moneys on account thcrcnf, wki
he had also ap])lied to his own use, withtka
ception of certain parts paid to his client, (IkiJ
the defendants, upon these facts, tiled .1 |Kt:!d[
under the 163rd order, praying tli.nt itniijliil|
referred to the master to enquin^ and reiortj
the sales had been bencticial to the Ciitate:!
if the master should be of that npinion, t
that the proper parties might lie unleredtop
the amounts • received into court: HcM.)
C'ur. , that the proper order to iiiaki! wcuMjl
for a rcforonco to enquire and report ; aiiJiilJ
s.-ilos adopted, then that the money rcniai
the hands of the solicitors should lie fortid
paid in, without prejudice to the crcditdrs'r
to got rid of the contracts. Blake, ('.,
who considered th.it the projier order ton
was for the immediate imyment of tlie nioi
whatever might Iw the ultimate dinpfi
thereof. But — Hold, also, ucr Cur., th,it wjj
)iotition givon notice to the jwrtics thiln
would be askod, sulBciont appeared on tbl
»f the Innd until ho s
11
fci.ij,^'
m
ATTOKNKY AND HOLICITOK.
:U4
U>viU to «uiii»»t tlii! Limit ill iiiukiii){ uii oiilcr
IfcrimuKiiliutc pftyment, pciidiiiu th« eiu|uiry bv-
■ j|,„ nianter, anil that tlic Holicitniu cdulil not
|»im t<) hftvu any lien fur oosIm ; Helil. ivluo,
bat lufHcicnt wiiH notuhown, toeimlilt! thu court
rpronmmce any jmlKiiuntaH to the UivMility of
fce principal for tlie acts of Inn tigont. Ihu alll-
iviti «»<' l>et>tion wen- iiititlcd in thi; caUHOH
'I'roukii V. Cr(Hik»t, oinittinu any mention of,
Kolicitors:- Helil, that the intituling miw
■rtioient. Senihle. that where from the nattuu
i the ftti'ttt upon whicli a petition to thu eourt
ifmimlcil, they cannot bo Hworii to, it in not
nioicnt to make use of tlio short form given in
Ihd 16Sr(l order, hut that HUcli facts should Ijo
Wctl ill the petition, »o that the re»p<mdent>i
Ity Ih! matUi ftwarc to what extent and on what
_joumlH relief in nought against them. Cmok/i
ICwh'inl., 1 t'liy. ST.
VII. Ai!THoiirr\.
An attonioy (morelv as such) is not autlioii/.ed
I discharge a (Icfeiidant in execution, certainly
i without receiving the debt, and a sheriff" so I
icharifing a debtor upon his authority will be
iblc M for an escape, lirock v. ^frL<■all, Tay.
IB. See, also, Slochmj v. Caminm, 60. S. 475. ;
I The eourt will not hold rlefendunt to terms
lepted by his attorney, at the suggestion of a
life at chambers, when he iiniiu'diately abaii-
the judge's order. Yuiiii'i v. .S7io;v, '2 (>.
1 314. I
lAliplication for new trial where attorney had
6<l contrary to instructions. Williuni.M v. '
ei<p, H. T. 4 Vict.
Illenililc, that bail arc not bouiiel l>y what the
urncy inr their jirincipal may choose to do as
t. MiHii'll V. Xuhlc H III., I ('. L. t'liamb. ;
[ - Burns. '
Belli, that under the circumstances of thiM
B |ii8 given in the statement and juilgment),
iwlicitor could not be oonsiilered the agent of
iplaintiff, so as to make a payment to the so-
V from the defendant a payment to the
ptiff. I'roiidJ'ool V. Miirniij, 7 t^. B. 456.
cliuut i8 not to be regarded lis having a
It to govern the comluct of his attorney, as
lie degree of liberality he shall observe in his
nice. iS'Aan' ct al. v yickrrmiii, ami (iillc/ijiii'
I V. .Yifid-dOM, 7 Q. B. 541. See also i ail
}u()gm. 7 Q. B. MS.
I to the power of the attm'iiey on the record
bmpMuiise suits against a corporation, and
[fw he may bind them by parol, when
joriied under seal. Doraii v. (irnU W'fulern
. ih., 14 Q. B. 403.
hfre a mortgage provided that no means
" be tak<!n by the mortgagee to obtain poa-
1 of the land until he should have given to
nortgagor one calendar month's notice in
after default made demanding payment ;
, in ejectment by the mortgagee, that a
inimcd by the plaintiff's attorney, who
'lohiB attorney in a suit brought upon the
nt, more than a month licfore this action,
nfficicnt, without any proof of authority.
nh\: Thompmn, 16 Q. B. 178.
.'\ ruli! for a reference in this cuuae was grantoti
on rending the consent to refer endorsed on thu
record at nisi prius ; it stated that the cause and
all matters in din'erence lietwoeii thu parties
should l)u I'eferrud t4i ."i. C, and among other
things st(ktu<l that th> evidence aa taken before
the judge at nisi prius should be read before the
arbitrator, and that any ((Ui'stion of law which
should arise at the request of either party should
be referred to the uoiirt, and costs of cause,
reference, and of the award to abide the event.
The order of reference, as made a rule of court,
differed from the alMivc memorandiiiii in these,
among other things, I. By directing that costs,
&c., should be in thu discretion of the arbitrator ;
2. That the arbitrator should not Ihj reiiuirod to
reserve any legal (piestions for the decision of
the court. Messrs. W. P. & B. acted throughout
in this case as agents for the defendant's attorney,
all the papers in the suit being served upon thcni,
and W., one of the members of thu said firm,
was counsel for defendant in the cause, Ixith at
nisi prius and before the arbitrator. It was
proved that on an undertaking of W., as counsel
for defendants, not to raise any ciueation of law,
the terms of the reference were altered by con-
sent of \V',, and of counsel for the plaintiffs. On
motion to set aside the award and final judg-
ment :— Held, that W. had power, either as
counsel or as agent for defendants' attorney, in
his discretion in the matters of thin suit to hind
the defendants, and the award was upheld.
Wiltuti V. Thr CorfHtralioii of the Uiiitfil L'oiintim
of Hurm ami Brua, 1 1 C. V. 548.
A. k H. were in partnership a.s attorneys, A.
being the attorney on the record in this suit.
Notice of trial wns given in the name of B. :
Held, that the notice was irregular only, and
not a nullity. Henible, a notice of trial given in
the partnership name would not be irregular.
Nor would a notice subscribed " the plaintiff's
i attorney," without giving his name. Macaiilai/
V. /'hillii>s, <» L. J. N. S. '2.37. -r. ('.—A.
\VilHoii.
The solicitor of a party has not, as such, any
authority to contract for the sale of his clients
I lands, ('aiiii'ro)i v. Brooke, 15 (!hy. 693.
Where a solicitor in gootl faith gives his con-
: sent and enters into an arrangement, even with-
out instructions, the client cannot be relieved.
I Where the solicitor has acted fraudulently thu
I case is different. Jlaifei/ v. Bailei/, 2 Chy.
i (.'hamb. .58. - VanK<mghnet.
Where a solicitor had Inien appointed by the
' master to represent certain creditors as a class :
Helil, that one of such creditors, who repudiated
the act of such solicitor, was bound by the soli-
citor's proceedings. Held, further, that the
solicitor was not only authorized to act for such
creditors in the proceedings in the master's office,
but also in proceedings arising out of or connected
with these, -such, for iustHiice, as a motion in
chanilwrs on their behalf. /?»■ McConiiell, ,1
Chy. Chamb. 423.- Taylor, Rrjhre.
An agreement by a solicitor that his client's
suit should abide the event of another fiuit by
the same plaintiff against another party, niarlu
without instructions from the client, who after-
wards repiidiatcd it : — Held, not binding on thn
client. J)e.war v. Orr—Dewor v. Sparfhtg, 3
Ghy. Chamb. 224. -Strong.
4i> '' ' ft '
l^;!'
:,* t-l
3id
ATTORNEY AND SOLICITOR.
,i'i
'mi
(, :
r,i
•r
VIII. DiTTiiw.
1. Retainer.
It in no part nf nii attornoy'n duty, iiiuler the
ordinary retainer, to wmc an execution and
collect the money ; h'w authority ceases with the
judgment. Where, therefore, the ]ilaintiff laid
as a breach of the defendant's undertaking to
prosecute an action, kc. , that he delayed to issue
execution, without averring any special retainer
to do 80 : — Hold, declaration ))ad on general
demurrer. Svarsou v. Small, .'> Q. B. 25f).
Under the ordinary ret'iincr to collect a del>t,
an attorney is not bound to re-register the judg-
ment which has 1)cen obtained by him and put
on record ; and — Held, that the evidence in this
case shewed no special retainer for that puri>ose.
Scmble, that the common retainer imposes no
duty to pursue any collateral rcmodies, such aa
to register the judgment in the tirst instance, or
to examine the defendant, ur to attach debts due
to him. Darting v. Weller, 22 Q. B. ,%3.
Held, that the evidence of defendaiit'H re-
tainer, Kct ont in the re))orfc of this case, was
clearly suBicient. //'•»•»• v. Towa, .S2 Q. B. 423.
If a firm, consisting of two or more partners,
arc retained, and one die, it will be assumed
that the retainer continues to the surviving
partner or partners. Alcfiin v. Bv^alo and Lake
Huron Jl. If. (.'o. 2 C;hy. Chamb.' 45. -Taylor,
Senrtar//.
2. (JondncI ami Manoqenn'id uf Bminrtif.
(a) Vcxatiom Conduct.
Where expenses have been vexatiousiy incur-
red in conducting a suit by the attorneys on both
sides, the court, to protect tlic client, will order
an attachment, tliough regularly issu'cd, to bo
stayed withotit costs, ujion payment of the money
due. Regitw v. Camrron, in the xnif of Plai/fer
V. Cameron, 4 Q. H. 165.
On an application to set aside a ti. fa. vcxa-
tionsly issuccl, the plaintifl'V attorney was ordered
to pay the costs of the application, he having
stated impcrtinrnt and irrelevant matter in his
affidavit, .inon., i V. H. 242.-C;hamb. Mor-
rison.
Held, that the second count of tlie declara-
tion, sot out in this case, charging defendants,
aa attorneys, with having entered judgment and
levied on nlaintiff for the full amount of a elainj,
without deducting a payment made ; and the
third count, chargmg a levy on other goods after
enough had lieen seized, were lioth good in sub-
stance. Reid V. Ball ct al., 15 Q. B. 368.
Held, under the (acts of tliis case set out in
the report, there Injing no ground for apprehen-
sion of losing the debt, th.it the conduct of the
attorney in is.suing and enforcing three executions
to different counties wns improper, and that his
client's instructions could form no justification.
The court therefore ordered him at onco to refund
to defendants the poundage retained by two of
the shcriirs, a id to pay the costs of the execu-
tions directed to them, and of this application.
Ilennj v. Commercial Bank, 17 Q. B. 104.
Qurcrc, as to plaintiff's right under the circum-
Btancos of thin case to costs as between attor-
ney and client, to l)c paid by defendant's attor-
ney, as a punishment for his voxatinus conduct
Gore District Mutual Fire fiuurance Co. v. Wfli
tier, 10 h. .1. 190.— C. L, Chamb.— Draper.
Remarks ui)on the vexatious and opiirctmive
conduct of an attorney in enforcing a levy for
costs witiiout any necessity, after an otTcr oi
I>ayment in a reasonable time and manner ; ainl
upon the introduction of irrelevant and jujin)
per matter into an affidavit. Davidton v. Uraim I
ft P. It 258.— Chamb. -Morrison. '
It is irregular to take out a ti. fa. the inntmit I
costs have been taxed, without allowing i
reasonable time to the solicitor whose client hi*
to pay them to communicate the result of th«
taxation. Cnllen v. Cullen, 2 Chy. Chamb. % \
— Mowat. But 800 Voolidge v. Bank oj'Monirmi
6 V. R. 73 ; Smith v. Cronk, Ih. 80.— P. (Ua'
Wilson.
Where a solicitor adopts a course obvioiuh I
unreasonable and perverse, ho will lie onlercJti
! pay the costs occasioned thereby, ^^'hnrc, then
{ fore, a solicitor refused to leave with the mistfr
a mortgage under w'lich he claimed on behalf ol I
a creditor, and tho master disallowed the cUiii,
the court refused to interfere with the iiiMten I
findinu, and made an onler for cmU .igainiil
lH)th the solicitor and client. But they gave tit I
client, the creditor, a further opportunity of pnir' I
ing his claim, unless the solicitor should *faei I
that he acted under express instructions. Bt<i \
ham. v. Smith, 2 Chy. Chamb. 462. — .Spr«gge,
(b) Other Cases.
An attorney having recoivcd declaration mili [
out denying he was defendant's attorney, Midi I
plea having been requested from him wnnil
times, he not denyi:'g his character m Httomfl I
for defendant, tho court set aside intorlociitcnl
judgment, signed for want of a iilui, withci:
costs, but steted they would on appliatMJ
against the attorney order him to p.iy the emtt f
Dobie v. McFarlane, 2 O. S. 285.
When after process served the parties uttfe I
and the plaintiff agreed to pay his o-a-ii coots, Ii«[
notwithstanding the attorney went on, thini I
ing that the detendant should pay tho coats, tk I
proceedings were set aside for ircgiiliritif
Parent v. Afc.Vahon, 4 0. 8. 120.
tremble, that an attorney would luit l)cliitt|
for culpable negligence, in not urging for In I
client the defence that tho agreement aiind Dpi I
was made on a Sunday, as it is not part of Is I
professional duty to take all dishoncAt .viwl
tages. Vail v. Dtiggan, 7 Q. B. 508.
Tho practice of an attorpcy usinc the wmiil
his clerk as nominal plaintiff, instcau of thriunl
of his client, is reprehensible. Dickiof \. X(\
Mnhon, 14 C. P. 521.
Heiuble, that the inability of the plxmriiril
attorney in replevin to communicate withbl
client, not knowing where ho w.iit, affordisl
excuse for allowinc two assizes to clapw, toil
is tho ^daintiff 's delay, not that of his »tl<ini(;,l
which IS a broach of the bond. Hkkkr \: i'^X
24 Q. B, 124.
Whore tho plaintiff 's attorney had condtKiJ
his proceedings with little care, tho dcfcndut*!
rule to sot them aside was dischirgrd witM|
coBtfl. Harrington v, fall, 15 C. P. M-
3KH 317
Defendant moved
uo iMue book had b
by hie affidavits tha
the nth October, ai
(lay an issue book w
not of defendant's ti
it was sworn that i
iiaue book had been
reason explained, no
j title was given, and
I inch uotico was giv(
I copy of the issue bool
I intelligible. The eo
Icoudnct of defendant
I the fact of uu issuo b<
I with thu notice of tria
I g. B. 389.
lu this case thu vi
I obtained, was set osidt
Idant'i attorney ha<l no
Evhichitwos set aside
lobtaiuud, and his uond
■dour in nut drawing at;
I to the procedure as ho
luitil the day before the
Ikave done so some two i
Iv. ftW, 20 r. p. 147.
Until after appoarttue
lomey in the cause, and
"ng himself such wa
ncnt to support an api
wiiue. Hood V. Cronkrii
-Draper. Gommentod ii
Y McLitehlin, r> p. R. (
An infant cannot app«
^ian. If the appoar
Ibeequont proceedings ai
'. Stville, n p. Jl 23.1.
I a' I ,
•\" •ttoniey who oppoa
K hid infancy, will bo oi
f all auboequent proceed
ition to act tho same asi(
I The aolicitor of the hi
TKiaalificd from taking
•Tried woman for the co
hnam\. Fftser, 16 Ch
"^'^ . <lnbit«nto.
iJt i» irregular for a solici
r wata for hxn client.
m. Chamb. rt. -_,Spragge
JTiie fact thtttan answer J
|i«)3imiMioncrwhoiiad be«
I"* lf«r taking the ans«
Kre an anawer had bee
M, !t was ordered to li
J time, with costs aj?ai
"""tv. y„/„M«,w, 2C'liv
Wnty.
^«olicitor ahouM not tr(
» 'n the aljsence of hii
K"/ V. w;k„, 2 (., ,"
fglinet. ^•
[•herc^Mlicito,...^p,,earc,l
n>''''«'-vt.dwith
»' thi master's ..ffi,.,. ,
re
it l" '
317
ATTORNEY AND SOLICITOK.
318
conauct ought to bo discouraffed, and refused
hinx coata. Simpiton v. Ottawa /?. W. Co., 2f'hy.
Chamb. 226. — Spiagge.
On a motion to diamisa, it apponi-'jd that the
caac had not Ii«;eii ttrought tu u lica^'^ng, through
an error in judgment of the plaintiff a aolicitor :
— Hell ., that it waa proper to take into account
auch error in eonaidering the application, in con-
nection with the other circumatancea of the case.
! McFeetem v. DU'on, 3 ('hy. Chamb. 84— Mowat,
A aolicitor before commencing a auit ahould
examine the inatrumunton whicliit proceeda, or
in caae of ita losa should uac due dilligence in
resoi-tiiig to the nicana of information open to
him, uiHi to which he ia referred hy tlie client.
lliH V. aiitiitoii, 17 (."hy. 389.
The court haH jariadiction to relax ita general
aa well aa its apccial orders, and mil in ita dis-
cretion do MO to furtlier the ends of juatice, or
to relieve a auitor againat dithcultiea otcaaioned
))j' a aolicitor. Where a defendant moved to
diamias the plaintilfa ! -U, the plaintiff iiaving
failed to comply with au ^Milei-taKing, auch fail-
ure having arisen througti a slip of the plaintiff's
aolicitor, the application to diamias vmu< refused.
Dfvlhi V. ntrliii, :< Chy. Chamb. 491. -hoyd.
Maatn:
An application was made to vacate a prrocipe
decree taken into the master's office, and to
Defendant moved against the verdict because
igiue book had been served in time, ahewing
, j,ig affidavits that notice of trial was given on
the lull October, and that on the commiasion
Juv »n issue book with notice of plaintiff'a, but
not of defendant's title, waa served. I n answer
it was sworn that with the notice of trial an
iiiae book had been serA'e<l, with which, for a
mion explained, no copy of plaintiff's notice of
tST w«s given, and that, according to pronuse,
Inch notice was given afterwards, to which a i
torn of the issue book waa attached, to make «t
tatdliaiblc. The court severely censured the
conduct of defendant'a attorney in suppreaaing
the f»ct of an iaauo book having been delivered
with the notice of trial. Pur^ons v. Fen-ibii, 2(J
g. B. 380.
Id this case the verdict, thouKli irreguUrly
obtained, was set aside without costs, as defen-
Jjnt'i attorney had not raised tlie objection upon
whi'-h it waa set aside until aftei' it hail Ijcen
ebtoinwl, and his conduct was wanting in c?u-
dour in not drawing attention to such objections
to the procedure as he intended to insist ujion
Butilthe day before the trial, although he might
ktve (lone so some two months Insfore. Cimhnitui
It, Rfi</,20<'. I'. 147.
Until after appearance u ilefendant has no at-
oroey in the cause, and an affidavit by a person
jilling himself such was therefore held insuffi-
ncnt to support an application to change the | allow, instead of a disputing note, an answer to
Kiiue. Hooav.C'ronltrUe,4V. R. 279. — Clianib. i be filed setting uii the atatntti of limitations.
— Drsper. Commented uijon m AUoimij-Quwrnl \ The application was hold to be properly made in
L j/(./,i(f/(/iH, Ti 1'. R. 03. — 1*. C. — A. Wilson. chamlHM-s and was granted, it licing hiiev n that
I the note waa tiled tlirough a mistake of the
An infant cannot appear by attorney but by i solicitor in anppo.sing that the defence of the
jUMdisn. If the appearance IS by attorney, all gtatute „,^ available under it. Ciitlnnnck \.
CbMOUont proceedings are irregular. Maenulai/ ^ ir,.,.„f,„,., ,; p ({ .2,s7. .(;hv, Chamb. Hlakiv
P vA-i«f, « P. «• 23r.. Ohan.b.-Dalton, f. I '
*: i P. i
An sttoniey who appears for an infant, know-
(j liii! infancy, will m ordered to pay the costs
I til (ubscquent proceedings, and of the appli-
ition to set the same aside, fh.
The Bolicitor of the husband is not as
KjailifiGd from taking the oxaminatirn of a
lied woman for the conveyance of her land.
kmufWY. Ffanfr, 16 Chy. 97 : 17 Chy. 207. -
iprkg);c, dtibitanto.
i It ia irregular for a solicitor to hec<ime secuniv
It coBti) for his client. Hfkiti \ . Wnififi. I
iy. Chamb. .^. — Spragge.
Tlie fact that an answer had f>een sworn btrorc
.'I. l)r<llill<l iritli Client.
All .ittorney purchasing secuiitiea
from hia
I client, taking no undue aiivantage, cannot lie
, I punishef' •>« for any violation o*' his diitv. /// f
*^r^ I Baitletl v. Mr!i>;-K, 1 Q- H- '-'■V.'.
[ All attorney had for a long time advised his
! client as to raising money, and also got bills dis-
' (• ur.ted for him. Upon an allegeiT .settlement
I )■■ tween them the client signed a formal acknow-
' leilgement of indebtcdneas in a large sum. The
' ioiirt, upon a bill tiled impugning the bona tides
I of such aottlciuont, refused to admit 'vhiaacknoM-
I ledgenient as prima facie evidence in,' ..or of
[jD'jimiMioncrwhohad been fonnerly concorrcd | the attorney. DirU \. Havl-f. * "..y
It
394.
Kilicitor in th' cause, wm not held to he
An attorncv sold ]«:.-X^ lo hia client at a most
h 1 for Uking the answer ofr the t^^les ; but j ^^j^^^^ nii.e, and took Uck a mortgage on
%re an answer had been irregularly trans- ^,,^ ^^^^^^ J,,,, ,^,„, „„ „t,,^^ ,^„,,^ ^„^.^„,^ » the
, It was ordered to be re-sworn withm a : y„,,,,,„ ,,, ,„„,„.y. -pi.^ ,..,u,t „„ ^ bill lilen de-
clared that the sale was fraudulent, and that an
assignee of the iiinrtgage, without notice of the
icn time, with costs against the defendants.
■Am V. Johmm, 2 Chy. Chamb. 20ri- Taylor,
Lielicitor should not treat with a party to a
in the absence of his solicitor Bank (>/
Wml V. Wilmi, 2 Chy. Chamb. 117. - Van-
Hgbiict.
I'here r. Holicitor appeared to represent parties
I had !hcii served with notice, licing «.'laiin-
1 ill tht master's ottiee, but were not in the
I interentud in the (pieation then at issue,
I liked for eosts, the court held that such
fraud, was not at liberty to sue on the covenant
for the mortgage money ; although as a IxinA
tide purohaaer for value without notice, he was
entitled to hold the land in security. They,
however, ordered the attorney ti- discharge the
laiida from the iiieumliraiice tliua created, /li.
.\u utti.iiiey aaaigueil to his client a niortgage
aeciiriiig £17''>. with a payment of t'.iO endoraed,
I leaving £125 due. In reality nothing had lieeu
I paid, but the £125 was the amount for which
■' (.,1,1
VI
\ 'M
319
ATTORNEY AND SOLICITOR.
m
tlio attuniey (the mortgagee) had sold the land
to the mortgagor. Altcrwarda the attorney
claimed oertam costs from the client for procee<l-
iiigs taken ui^jn this mortgage against tlie mort-
gagor, and obtained his note for the amount.
Wnen the note became due, the attorney
charged the client live per cent, commission, in
addition to legal interest, on renewing it, on
three several occasions. '''he court net aside
the assignment of the mortgage, and directed an
account of all dealings between the attorney and
client, with costs to the hearing. (Iranthain v.
Ilav^h; 4 tlhy. flS'-'.
A pemou in indigent circumHtances being en-
titled to a grant of land from the crown, hail
consulted a solicitor with a view of obtaining it.
In the course of their transactions the Molicitor
wrote, " 1 think 1 can manage for you so ellec-
tually that 1 can get your deed from govern-
ment, probably through .some assistance on my
part." Tilt, client having e,\e( uted an aswiirn-
ment, as !" alleged, by way of security to the
solicitor, an I the patent for the land having lieen
issued, the s )licitor set up the tra^action as an
absolute pureiiase, in consc(|Ucnce of which the
wife of the i>laiiititi', acting as his agent, took
steps to assert her husband's ;laim, ami j)r(K'ured
the .assistance of lier l)rother. After repeated
applications the solicitor agreed to re-convey
upon l>eing paid £170, asserted by him to l)e
due. This the brother adv.anced and took a
conveyance of tlie property, said to Ik; worth
ilSOO, ill his own name, and then alleged he had
purchased for his own benefit. The court
(Esten, V. ('., dis.s.) declared the deed to the
solicitor a mortgage only ; that his assignee
iiiul in fact acted as agent of the plaintiff, and
could not purchfisc for his own nenelit ; and
ilirected an enquiry :u to certain points left in
doubt by the evidence lx;fore the court, and an
examination of the solicitor's books ; unless the
purchaser would consent to ro-convcy upon rc-
■;oiving back the amount paid by him to the soli-
citor. Mcllroij %. /faii'ke, .i f'hy. 5I(!.
An execution being in the hands of the sheriff
against lands, the defendant therein applied to
a solicitor to procure his .services in obtaining a
settlement )f the demands against him. To
crable the solicitor to i-aisc funds for that pur-
pose, the client, at his suggestion, convoyed ins
Lnds to him in fee. taking back a defe.isance
stating the object for which the deed was made,
which waa subscijuently lost. To raise money
the solicitor executed a mortgage for £'24'), anil
the mortgagee sold the *ime to another party
for £150, wtiich was handed to the solicitor, and
thereout he paid the claims against the client,
amounting in all to about £90. Afterwards tiio
solicitor demanded from the client £245, and
subsetiuently £300 as the ]irice at which the
client wouhl be allowed to redeem ; and this not
having lioen complied with, the solicitor sold to
a third party for £\'2't over and alwve the mort-
gage, but the purchaser had notice of the claim
of the client. The court declared the acts of
the solicitor a plain breach of trust ; thot the
client was entitled to redeem upon payment of
what was actnallv ex]K!nded or. his 1>ehalf : that I
the purchaser of the mortgage was, under all '
the circumstances, entitled tohohl the land only j
for what he had actually paid, and interest ; the
excess of which over and alxive the amo'int j
expended for the client the solicitor was onlerod !
1 to pay, together with the costs ol the suit to
the hearing. MrCaim v. J)einp»f)i, 6 Cliy. 190 ,
I'he attorney having made a h)an to hiHclicm
' the court, under the circumstances of tills ta*
refused to interfere on tlie alleged gioiiin] oi I
I fraud by the attorney, defendant having i|^.||j„j
all the allegations of frau<l set uj) liy the hlaji,,
; tiff, and his statements l»eiiig corroliomted iiv i
j the signature of the plaintitl' to a nioniDrainliuii I
' prepared by defendant when tin: jdim „^ f
I effected, altiumgli the attorney, they tliougin
should have refused to proceed with tiit|oj|,l
I without the appointment of a solicitor Ui sc,\
\<m behalf of the borrower, /{i'cm y. W'iltriiii't
iChy. 418.
.\n attorney retained to recover an cstatt k
tlie heir-at-law of a former owner, bought m,
title paramount to his client's, and obtained w
session of the property, wiiich he conveyeil tm
brother of his client, as tlie heir-at-law, whosi
sequently sold ))(U'tiiins of it to several puj.
eliaticrs, all of wlioni but one had not paiil tliejj
purchase money, and as to that one, he lu|
employed the same attorney in effecting Im
purchase. In fact the person in whose l)«;uif
tlio proceedings had been taken was not liai
and the attorney h.ail lieen made aware ( if It, i)i
a bill tiled for tliat purpose the purehadcru ikb
declared trustees for the heir-at-law. ^'mim
/fiiiifirniiii, 8 ('by. j.
An att<irney in the prosecution of mt» bl
recover an estate for the supposed lieir-at-lai f
.\., buys in a paramount title fortheheir-atlwl
and subseiiucntly conveys the estate to A., ti,i
supposed heir, who sells and convoys to limJ
purchasers. On a bill filed by B., the rciliaf
against the attorney and A., and the purchiwil
from them, the court— 'n this respect
the decree Itelow, an reported in (i C'hv. kI
--adjudged them Ut 1» trustees for B., 1
it api>eared that the ancestor had long bciortbl
death conveyed away all his interest m tlieUl
for value. Robinson, ('. .1., diss. BiitsoiMjl
such purchasei-s having had a priur nr betkl
etjuity than the plaintiff, the court- varyinjlkl
decree of the court below in this respect •(lirertKl
that they should not bo disturiied, .dtlKiiiglitlrl
got in the legal estate with constructive iionil
of the opposing claim ; Esten, V. I'., disf! hi
also varied the decree a« to the other purchMil
by directing that under the circuinstanas til
account of rents and profits against them mm
be limited to commence from the llliiy 'al
bill, and that they should be aijnwcil flu i'l
value of all substantial repairs am' \vmv
improvements mailc by them priur tiithat>k|
listen, \'. C , diibitante. //<■«(/, r^„ii v. Ur
'2 K. A .V. !) ; If'rartHV. .Smith, C, Cliy. ,W;
Although a solicitor may for .suliicii'iit c
by notice to his client, terminate the coitntc
between them, the court will not iiiAkcumi
for that jiurpose upon the ex parte appiiojtiid
the solicitor. /trii/.<r v. Avmll, I Cliv. flu
3ti7. Spragge.
On a hillfilod by one of two intaiit [totii^
an administration suit, (after attaining niijcinli
seeking to im))cach the proceedings thcriiniiiir
ground of fraud: -Helii, that tlie fact tlis''
plaintiffs in t'lat suit, as also the triistw'swilj
executors, had lieen representeil liy mii' soW
the omission from the decree of anv 'lirti'tMl
»™"«''.tHtctl.ctransae,
;I21
ATTORNEY AND SOLICITOR.
322
, >j-ilful uegleot or dcfuult on the- part ol' the
1 Icfemlaiitx therein ; a material iliffereucu between
I '.Vj, ,jj,j.r(;c iiml the (kcree on further directions
1 an t<i the lands directed to be aoUi for satisfaction
I of iltihts ; a purchase )>y the solicitor, so acting
Ifoi'tlif several parties, of a valuable portion of
Li estate did not of themselves evidence fraud
l„acolln8ion. .M.-Dou,ihII v. U>II, 10 Chy. 283.
m\
linil COllllSlOU. .n.M^i/.';c<" ». MJ'-., .w V .ij.. -^,j. I
Tlie widow of an intestate obtained letters of
Llniiiii»tratiou, and iier lirother, a lawyer, acted
Ifor tier »■* a friend, not professionally, in the
Imaiiageinent and settlement of the affairs of the I
«Utc. \Vhile so employed, the brother with i
J own money purchaseil a mortgage whicli liad i
«ii created by the intestate : Held, that he \
Iras entitled to" hold the mortgage for his own I
eiietit. /'(("/ V. ./o/i«*<», I •-' Chy. 474. |
hi .Viiguit, I8()0, the ]ilaintiH', being pressed |
Ur money, ai>plied to defendant to purchase '
oniliini ii mortgage, wliich tlic defendant agreed
niirchiUie on such terms as would give tiic i
lefenit.iiit rifteen per cent. ]icr annum. In Octo- \
itrof the same year, tlie transaction wa-s com-
tteil. In I8ti,"), the plaintitt' tiled his bill,
Btinu" that tiie defendant was liis solicitor,
ad hul taiicn adv.mtage of liis necessities, and
sviiigthat lie might l)e relieved. The defend j
it dill act as attorney for the plaintitl' in I8r)4, |
It niit from that time until February, 18G0, i
It'll the ]diintiH' put two claims into the;
ifiudaiit'.t (ilKce for collection, one of whicli i
xeedeil no further than issuing a writ. The
Oliev in the other had been collected and paid
«r til the plaintitl' in .lune, ISliO; the defend'
t knew I"'!;/";' of either suit, and was never I
lere ards > sjii-.i., 1 jirofessionally by the plain- ,
The (." or., 'laving reference to nil the
lluiiistiUK'L'S and the delay in instituting jiro
(dings, ilismissed the bill with costs. .\h'l.iii- '
\lr/)„milil, 14 Chy. (ik |
[An .ittoniey selling projicity of which he w.is I
i,il'|i:iiviit lint not the real owner, acted for '
|iiiivli;tsei', who iiad coiilideiK'e in him and ,
JBiii'iu 4 no otiier solicitor ill the matter. The
mm-}' iliil nut disclose to the jiurchiuser the i
E>t;lti'()f the title, but allegeil it to be good, '
Ugh without any fraudulent intention. The '
iiwiiei' having, after the eoiiveyiiiice was
witi'il, ri'odvi'i'cd the |iropcrty from the imr-
w : Held, that the jiundiasi'r was cntitleii i
|h;ivi' his [iiiyineiit and ix]ieiiiliturc on the |
lorty made good to him l>y iiis vendor, ,1111'
latter was not protected by havin
limitcil ciivcuants for titl
^I'lmii, 14 Chy. '271.
1 attorney t<M)k a conveyuuce of pro))erty in
for a elieiit, Imt did not sign any writing
inwledgiiii,' the trust. .\ parol agreement
iMihs«(|uently entered into, that theattoniey
llld aeceptthe iiro)ierty in discharge of two
"iwhichhe luhl against the client: Held,
Itim agreement was binding on the attorney,
V ""' ill writing. After making the agree-
, the .ittnriiey put the two notes in suit, in
lainc of .1 third person, and obtainci'i jmlg-
(liy default: Held, that the judgment wn.s
rt<iasiiitby the client for siHjcitic perfor
"( the agreeiiienf. /'A ,i,iii;i v. Dunron,
By. ill,
JivcyiHUM'M ohlaiued by a snlioitor from his
iraurtittiito the transaction correctly; .-ind
the solicitor must preserve evidence that aii
adequate price was paid, ami that the transac-
tion was in all respects fair, and such as a com-
petent and independent adviser of the client
would have approved of. Where these obliga-
tions are neglected, the suit of the client must
be brought within twenty years ; but an unex-
plained ilelay of leas than that period may,
under circumstances, be a bar. Where nineteen
years had elapsed, and the delay WiW accounted
for, the heirs of the client were held entitled to
relief. Oakf't v. Smith, 17 Chy. (jtJO.
A solicitor of a mortgagee cannot become a
purchaser under a power of sjile contained in
the mortgage, though the proceedings for the
sale Were not taken m his name, and it was not
shewn that any loss had occurred by reoscm of
his being the purchivser. Ilon-ard v. /fiirdini/.
18 Chy. 181.
An old man whose mental faculties had been
somewhat im]Kiired by age, being in diHicnlties
with his son, applied for advice to the attorney
of persons against whom he had recovered a
judgment for one debt and a verdict for another
debt ; the attorney obtained from him a release
of the two delitors without any consideration,
and without hiti having any other advice in
regard to the tranaaction ; and the only evidence
of wliiit had passeil between the two was the
evidence of the attorney himself, the client
being dead : Held, that the release could not
be maintained in cipiitv. /hinir v. S/mr/iitii,
18 Chy. iiXi.
See also Mr I,, lilt v. Unnil, -JO Cjiy. 7('., p. ;HU.
iving gi\<'ii
Mr /fori/ V.
4. oih'i- r„,s<,v.
Wlieic tiieic weri! several plaiiititl's in a suit,
and a linal order of foreclosure liad been obttiined
by their solicitor: Hehl, that their solicitor couhi
not afterwards move on behalf of the defendants
foreclosed to set aside the order for foreclosure,
though two of the i)laiiitit1's concurred in the
apjilicatioii, and only the third objected, lioiillon
V. Dim (iiiil l>iiiii'itrlh I'liiiil Cii., I Cliv. Chanib.
:<•_'!». Mowat.
Where such motives e.\ist in the mind of a
solicitor as would be sutlicient with ordini'ry
men to induce them to withhold information from
the client, the presumption is, that it wa.s with
hehl ; and the uncommunicated knowledge of
the solicitor is not ini[iuted to the client a«
notice. I '11 nil run V. Ifiilrliituii, It! Chy. .VJtf.
Where tlic mortgagees sold the umrtgage to
defeat or delay their cr,;ditors, but the vendee
had no actual notice of the purpose, it was hehl
that the circumstance of his having employed
one of the mortgagees as sidicitor in drawing the
assignment, did not make the knowledge 01 the
solicitor notice to the vendee, lb.
IS.. Hi I, I, OK CosT.s.
I. iSiifiihiij (iiiff Drfiiyri/,
The mouth requircil by 2 (5co, II. c. 2.1
for the delivery of an attorney's bill is a lunar,
and not ;i calendar month, and the day of the
Bcrviee of the bill in included. A defendant
having cndorncd an admission of ,ser\ ire on the
bill produced ; -Hfid, to have admitted that
''\-i
llill
W 1
iljl
•.i-2\i
ATJUKNEY AND SOLIOITOK.
■m
the oop.v recfivfd wjw ^i^'iioil liy tin; attoiiu'y.
Bf.n-i/ V. AiiUruw, 3 O. 8. 015.
Ill an action by an attorney for liis k'l.'.i, ht-
muHt i)rovc the delivury of his bill, although the
rtefendant has suflered judgment liy default.
Ridout V. lirotni, 4 ( >. S. 74.
Where an attorney served hi.s bill on the liOtli
May, and the
»H of T. T,
sum in the original suii, and no liill of iliiiisiml
been delivered by the plaintifls to their olii'iit;.
Held, not a eoniplianee with C S. U. C. c, j;
». 27. Shiiiloii mill Warnii v. MrLinu,
J. ;«)!. C. ('. Hughes.
HI
An attorney, upon the reiiucat of hi» ditni.t
on the •27th *Mareh, ISO.S, delivered tu tluiii,|
, , .,■ ,, , ,.i. 1 11 bill of costs. They afterwards, disrw'arJii!,!
heplaeita,.ntlRMeeordwere.nt.tuledi^,^i l,j^i,,^.,, .^„ J^^^^. i^;,,, to ckqi™,T
, which conuneneed on the 16th of ' ^^j,, ,^f ^^^^^ ^f .^,, ^.,„„^.,'..^„a matters wl.lL
.June- not a lunar month a tor suchserv.ee-- j.^ ,,,^,n,eeu coneerne.l for them, which kfel
but a memorandum wa.s adde.l ' t.. wit. 1 Ith ; j,,^.,,,,,;, t,,, ,„,.,.i,.,, f,„. „.,,;,.!, Lis f,„.,„,rSI
July, and the pla.nt.l proved that >";* •'•-'<-••: had been delivered. No objection was „„laf
laration was hied OIL that day, but did not pr..- ^^^^ ^,,^,,^^„,, ,,f tbc new bills till aft.r it , l
duco the writ ; Meld, .sutheient, and that it the ,„.. ^x.. „.„ii .,u..,.,.j..;,w.,l tlvif fl,.. l.^i..,, fl
.. , . 1 \- 1 i 1 1 1 urettv well a^cercaineu tuai ine oaiaiiLo wiiH
writ were issued too soon >letendai.t «^;'"l^l I {„. against the clients, when they emlean J
Micw It. Mc.\hirUn V. .'.inqhni, 4 O. N. .S.«. ,^^,,^,°^,^^. .^ttorney t.. his lirst bill, whid,, wj
A defeiiilaiit is entitled to a copy of the bill i receipt endoi-sed ujkiii it, would have uiaj,,!
according to the statute, even thoujL'h he may i balance against him :-- Held, that tlii; cliuiJ
have a<lmitted the amount to be due. >Nlu're, ! could not revert to the old bill, to tin prcjn.li,!
tiierefore, to a declaration for fees, containing a i of the attorney : Held, also, that tliu iittonm|
unt ni)on the account stateil, defendant pleaded was entitled to charge in his bills for servii
no bill ilelivered, &c, : Held, jilea gooil. Dr
irii V. WiiiKl'tiili I/, .'» Q. 15. 317.
Kon-delivery of the bill is not a plea to
"/'
:ne bill is not a nlea to t
for defendant, therefore,
the
'/.
merits. Judgment
no bar to a second .octinii. l>iiii/i,-<i i/ it
W'inxtanUii, G v). B. 40lt.
Pleading iion-ilelivery of a I'ill is imt an issua
ble pica. A plea denying the
AVc/f-i v. Jolitiwn, I ( '. I.. '.'!ianib. 93.
The atttu'iieys who ejnimeiice the action must
sign the bill delivered. Where, therefore, three
attorneys composing a lirm commenced the
.iction, and only one of them signed the bill :
Hold, insutticient. Snltiraii <l nl. v. lirlili/ix, ."i
(»>. B. »22.
.Vction for .services as attorneys. lMe;i, that
tJKUigh the ])l.'iintiH's did, before suit, to wit, on
the 10th September, 18.")l, deliver to defeinlaiit
a bill, yci, that a month from such delivery ha<l
not ex;'i'xd before suit. Replication, that a
month from the delivery of the bill in the ph'a
mentixned h.ad cxi>ircd before this suit .■ Held,
replication good. Drupir ii nl, \. Slu'n, S
Q. R 441.
Where one attorney sites aimtiier, it i,s imt
ncccHsar^' to deliver a Ijill one nioiitli l)efore
.-iction. But by .'i .lac. I., a bill inusf !•■ deliv-
ercul .it some time before .action in a cise wh.'ri>
the business done is not agency businos, but .'is
giirnishee itajvers, tlie same haviiij; Ih'hi km
formed at the recj.iest of the clients, an.ltj
charges theivfor ai>pearing in his urdiiiani
In ,T MiiUmh, 10 L. .1. :«7. -('. 1,. CliMi,.
A. Wilson.
.\n attorney having once reiuloicil lli^ uj
eaiinot. after .steps taken to have it taxiJ.^
to it, or ileduct from it, without leave of li
■tainer is. i e-ourt. In ,->■ Dovu, I L. J. N. S. '.MH. Ckl
Mac.iulay. j c'hainb. Richards.
If he has rendered his l)ill malviii:; iluij
; ill a lump sum, though he may ]ierli:i{g.
I up items to shew it correct as to tln' aiikti
i yet he cannot recover or ta.x iikmv than!
i amr>unt. //;.
Draper it nl. v. Hrn.^liti, \;jji;l
for .any other client.
S Q. B. 260.
.\n attorney miiy lie ordered to deliver his
liill though it has been fully settled, anil to give
en:dit therewith for all moneys received. Wlicii
after such nn r<lcr he makes ilefault in delivery,
he will have to p.-vy the costs of siii'h nrder. /;/
;•«• Friinri.'iv. /{iniitnii, (i I,. ,1. 20. ('. L. ( Ihainb.
f)r.aper.
.V bill iiiu.sl !)■■ delivered liefure
referred for taxation. The first
."liould therefori' be for delivery,
tiled in support of such application must lie
intituled in the court, and, under the st.Ttult:,
"in the matter of \. II." /» /•<■ f:',-cl,t,l nl., C
I,. .1. .VJ.- ('. I,. Cluimli. Richards.
In an aeti'in on a liill, where the costs were
rharged at one liiiuii sum, .-ilthough the costs as
between jMirty and jwirty Iiad been taxed at that
it will lie
i]>plic,"tioii
Atlidavits
If through mi.stake an attorney lia.s ilriirgJ
an erroneous bill, he may by siicuia! a|i]iliiMi
shewing eh-arly how the mistake tiasariwil
allowed to ameiul it, or deliver aiicitliir. Iiiil(
of his own mere motion. //'.
On an a]iplieatioii to rjter an attiiriitv<
taxation, an amended bill of costs wa.< ;i!
to be sulistituted for tlie bill ilc:liven'4 :
client : the attorneys uiidertakiii;.' tu mwil
full of their fees, charges, &e.. tlu: nimi
the origin;' )>ill or the amended liil!,i
whichever might be the le;i>t. Inrll.ii
V. 1!. IS. Daltoii, <: f. ,(■ /'.
Solicitors delivered bills ot (■ll.^)^
each, " In the event of taxation, wi iw
ourselves the right of dcliveriiij; aiini;;
more ooniplete bill :" Held, an alisnluti ;-ai<
Re I'cn.ler, S Bcavan ; lie < 'liain'nii-. :itli
eonsidered. /n n \y»«c< /• \ , Mr Dim •:.!. l'(
4t)7. Spragge.
(^hia'i'c, c;m attorneys properly Ik nmi
the costs of an order for delivrr\ af lilll-i>li|
//) (V f.llll'lll I till.. .\lliiniill.i,,{r.. 1 I, .1 \i
( 'hy. ( 'hamb. A. Wilson.
.\ judge cannot by the siime m-iki
ilclivery .iiid leference tu tav.ntimi
Nor e:in he, in an .action lor siu'li I'iil.
eeediiigs until drlivcrv and tax.iti"ii: m;|
ble, that the right to restrain th. xrM
the statute, only .tttaehes on a n'fiT. mv ^
bill to taxation, (.hiiere. whetiurlli'""
bi' an order for delivery after actiimi'
but unless a ver\ strong ease ii u*
ATTORNKY AND SOLTOITOR
ief.iuUnt sliouia l.u left t,. plea.l tl»-
,'i: I, Huoiiiir V. Amlifsott III n linn
solicitor iiiuv 'le or<lorr(l t(
32C
lion-
iiiir,
llcliviiy
! \ii ftttornoy or , ,• . , ,
il.iivor.i bill <if bis oh;irgo.s for loisincss .loiiu l.y
L-i .. iueh thoui,'!! the survicus iieifonne.l wuic
nrt as i" tl"" ^'**''' "■''^''■<' *■'"-' retainer was to
v..,t,i"i/ate tlie title of ami i.imhase proi-erty. /ii
I'll i'l
Cliamb.
leliv,
A sumiiwii" calling uixm ;in iittoiney todelivor
iliiil (if cdstH ili<l iKit refer to any affidavit or
ii>rstile<i. Aniendnieut allowed. AV Jlnr'nn,
■237. Ciianib. A. Wilnon.
Service of the bill <>» <"'« "f •'several clients
■ini! in c(iiij""L'tion by tlie same solicitor, but
k .'o-nartners, is sutlieicnt service on all. /i'<
f>,;,l,:i .(■ Km: ■! < 'by. ('band,. H-J, Taylor.
IScrvice on a solicitor aniiointed liy the one of
Leral clients who had lieen active in the suit,
a through whom instructions had been ^iven,
lenieil sntticient. >''.
i. Aiji'ii'iiKiif" <'" '" ''"••''•■•.
Iwiion conveyances are i(rei)are«l under
a agreement,' it will bind the master.
nl).-Burns.
Il.i'i
a sjie-
C. L.
should ]>ny, among otiicr things, all the eosts of
every kind, including retMiiier.s, for which the
phiintiir was lialile to his attorney, it wub held
that defendant, tiiotigh he iiad not paid the bills,
was entitled to have the bills referreil to ta.\n-
tion on the usual terms. C^ua-re, is such i*
defendant a party "liable to jiay,'' within s. .'IS
of ('. .S. I'. ('. c. S.'. Ill i-f (>iii luriiiid, mil, <tr.
10 L. .1. i:il. ('. I-. ('hand.. A. Wilson, J.
Wilson.
The mortgagees of land having brought eject
niciit, and sold umkr the power of sale, their
solicitoi' sfut the surjilus purchase money to the
mortgagor, acconijianied by a statement of the
amount due, in wliich one item was for "solici-
tor's costs, .SI4;{." 'I'lie particulars being asked
for, he rendcrcii two separate bills, one of the
ejectincnt, the otlier ot the sale:- Held, that
the mortgagor was clearly a person entitled to
aj.ply for taxation within ( '. S. V . ( '. c. H5, s. S.
Ej jiiirU' (l/iiss. In i-r .1/(1. ■-/.,/)«//,/, ;{ r. |{. i;t,S ;
'.t I,. .1. 111. C. !,. ('hand.. Ilagarty.
.•\n a.ssignei; in insoIvencN emi.loycd a linn of
' attorneys to perform certain .services in connec-
' tion with the estate. .*>ubsei|uently he resigned
i the position and gave these attorneys the moneys
• of the estate remaiidng in his hands, with in-
structions to pay their own costs lir.st, and then
to hand the balance to the new assignee. This
they did and rendereil their bill of costs : — Held,
th.Vt the estate of the insolvent was within the
meaning of V. S. U. ('. <■. .'{(i, s. 38, the "party
n,c master ni taxmg such bdl must d. culc as , , ,^j^ h .. ^,^^^^ . . ,^,,^ ,.,,,„, aide as a priii-
the can, acconhng to the contract exprcssc. ^^ , . ^^,1^,^,^,^ ^^,^,^^,,, ,,,,;, «.„, ^.„titi„',, t„
inplie.1 l«twcen tl.e parties. In i. h-rl... .t __i^.^^ ^^^^ ^.^^ ^^^^^^, ^^^ .^ , ^. , ^ ^.^
,6 L J. M. f. L. ( hanib. Fuchar.ls. ,. ,. ,. ,.^ , , ^ , ,,,^,,,,, _ ^^,^^ ,, ,, ^,. ,.
)st,H of suits being in all cases the money of
client ;— Held, that an attorney taking an
lal salary in lieu of such costs, cannot tax
J than (liaburscments (which by his aij;rec
fit he was entitled to recover from his client)
I a ilcfcndant, though all such eosts were the
lertv of the attorney by the arrangement.
n.<v. niCmil \y,-M,n, It. ir./V..,Sf'. P. '2H0.
(b) W liai mail hi /fffn-rid.
Items not appertaining to the bnsinesB of ;ui
attorney cannot be taxed. A revision will l.c
granted w hoii the master, upon a refei-cnce of a
bill " for fees and disbursements in hi.s profes-
iiUowed cliaii
sional business," has alh.wed charges for other
hoe an attorney, haviiw had for three years huKiucss. In rr ./nm.i v. Kitrlmni. 'A I,. .1. I(>7.
ent on confession for a large amount, i '. 1,. Clianib. McU>an.
nj(iui
(li'tendauts to understand that his charges
St ;)laintilT were S'2(K), which ilcf.-ndants
ti.i'rtl to mean iiU his charges, which sum
iiliints iwid, the attorney was not allowed
m\» to treat the .i<l!0O as paid for costs
til attorney and client only, ami to proc(!ed
it»l«twccn party and party incurrcil j.rior
giving of '.he note. C'ilti'K/iii it nl. v. Sliiiiv
,, 10 I.. .1. 100. ('. U C'hamb. A.Wilson.
.\ bill for conveyancing only cannot be refer-
red. Contra, where it consists either wholly or
in ))art of business done in court. AV Limuu
mill Pi'tirsun, 8 L .1. 18.5 (". I.. ( 'liamb.
Hums. I-:., piirti aiiiAs, 'A V. It. I.S8. ('hand.
Hagarty. Sec .'fi' Krrl,/., ii I,. .1. m. C |..
Cliamb. Hichards.
The mortgagees of land having brought eject-
hmm iHitwcca a s(dicitor and client, ment and sold under the power of s.ale, their so-
iby the latter undertakes to pay more than beitor .sent the surplus purch.-ue m..ney to the
■gnized fees for the work to be done, can ; nmrtgagor. accompanied by a statement ot the
'orcetl. Ri- <l,ilil<'< mill iri/.-o,,, •_> Oiv. ' a>"<'""t 'bie. in which one item was for '• i-oliei-
ih 44" Mowat tor's costs. .s|4.S.'' The particulars being askeil
.... . ,,. , , 1 1 for, he rendcrcl two separate bills, one of the
I *»"l>^!t^" roronto agent made a l.ar- j,j,,,t,„,,,,t^ (,,,, ,,^^„,^ „f ^l, ,„,, ,.._ Hold, that the
-It;-..'." client for.*-...ihourfora, ondancc , ^;|^.,, ,,j„^ ^^^: ,,,. ^„„,i,,ered as p-.rtieulars of
•,i.M«;r,softce,s.u'h bargain w.ns held not , ^j^^ ^,,,^, jj,,, ;,, ^,,^, i,„,^ statement, and
- althflugli rea«on.dile, the suthcency or ^,^^^ j,,^, ,,j„ ,„■ ^^^,^^^ ^^ j,,,, ^^j^ ,,^^^ ^^.-^^^ -,
ncy ot the aninunt oemg immatcria ., ., , i, i- . 1,1 „ . „i ,., ,,„,
■' " the other bill, w Inch would not alom have
been subject to taxation ; and both bills wore
therefore referred. Aj' paiif (rlanii, In r<-
MdfiUmiUI, W V. \\. I.SN: !• I,. ,1. 111. f. L.
Chiuiib. ilagarty.
the item i» lixod by taritV. //..
ft(7iAiicc ^0 TivrnVion nr Iti'ri-iinii.
(a) Who muji npphi.
|re, im a !>pttloment of several suitt be- j The bill is one entire matter, and in taxation
ktlif iwrtieh. it was agreeil tliat ijefendant the client cannot separate certain chiirgeH foi-
i^
^^^'fMf
32;
ATTORNFA' AND SOLICITOR.
3:>H
k.
li
if
^W'
h\
{ ,1
ii
taxation and ohR tliat they iiluue be refuirol. Jii
TV Jhii'u, I L .1. N. S. •Jia.-t'. L. t'lmmli. -
iiichariU.
Un un iipitliciition )>y a client for tiixatiim of
costs ill a suit in this court, and in anotliur Muit
in a County Court, his artidavit admitted a re-
tainer in tile C. C. suit, lint denied one in tlic
Muit in tliis court. Tlic solicitor making no
claim for costs in the suit in this court ;
Held, that this court could not order taxation
between the client and solicitor, hi n- Mulrului
(.'. ditiiienm, II Siilirlfiii; I Chy. ( 'hamb. 3."»(i.
Spiagge.
Where a solicitor has funds of a client in iiis
possession, or lias i)a]iers over which lie claims a
lien, this court will order ilelivery and taxation
of his bills and iKayment of any balance, though
the services for which he claims have been wholly
in County ( !ourt proccediiifjs. AV /'rinn, H ( 'hv.
I 'hamb. 282. -Taylor, /{</•■ m.
See //( !•'■ i\'!li<>,i .(• //.<•/,„•, ;» I,. .1. i:i_', j.. ;i2«».
(c) Tiiiii III' licj'i rtiii-i-.
A bill with exorbitant charues was ordered
for taxation, altlioiigh paid, aniT several months
lia<l elapsed since its lU'livcry. />'» d. Frnsi r v.
EujlliMiiiii, a (>. S. 77.
On an ap])lieHtion by solicitor to tax ciistt>
against their clients, when the liill was rendered
oil the 22iid of August, and the petition presented
on the 22nd of Me]>teml(er : Held, too socm.
The month must be redeemed exclusive of the
day of rendcniig the liilland jJresentiiiK the peti-
tion. //I ;v Morphii ,i- Kirr, 2 Chy. Cnamb. .'i<i.
Taylor, Si'mtni'i/.
(d) Aj'lir Tii'i'/i'i Month*, m- Siltlnui'iil.
An order wa.s refused wher* the bill had been
paid and acfpiiescpd in. ,\fiii-r/rii v. }[iirqnii, K.
T. 2 Vict.
A bill settled for more than twelve months
will not be ordered to be taxed, and if taxed by
inisttikc tax.itioii will be set aside, hi ri.loiu ■■< i\
Ki'Uhiim, 3 1.. .1, Ifi7. -C. L. Chiimb.- Mc'Aaii
.v. C. //). 203. C. L. Chamb. Robinson.
The court cannot refer a bill after it has Ijeen
delivered twelve months, unless under s])ecial cir-
cumstances. The fact that an action is brought
on a number of bills delivered <luring several
years, while defendant was plaintiiF's client, i.i
not .1 "special oircninstance," wnthin the Act ;
Qud're, is an overcharge in the absence of fraud
a "siiecial circumstance ?" /{cmt v. ('ultun, (> I,.
.1. 114. C. L. Chamb. -Jlagarty.
Where several bills were delivered by ])laintitr
to defendant, the lirst in .January, 18.54, and the
last in .January, 185!), and there were several
apjtlicatioiis ff)r payment, and a payment made
in .fanuary, I8)i0, and an action was com-
menced in resiiei.t of the bills in August, I8()l,
and no application made to refer them till 4tli
iNovenilHir, I8(il, a siinimoiis to refer them was
discharged. Head r. Cotton, (i L. .1. 114, uii-
held. liiilliin v. Aii^lin, 8 I.. .1. 47, -C. \..
Chuinb. Drajier.
When! ilofendants, in 18(50, in consideration
of forliearance, promised to pay a demand of
VI200, which the attorney said he had chared i,j
his clients, but which was not strictly in wyj
recoverable from defendants, it was held tlm,.
wuB too late in 18(1.3 to call upon the attoriin [,■
ileliver a bill of items for the #200, althuiul
such a liill was demanded at the time tlit not,!
wivs given : and it was also held that the |iix.j.|
sure of an execution against lands iu ItiliOw},!
not asutficiciit "s|)ecial circumstance" t(i(.ntitl,|
the application to succeed, iiotwitlistaiidinuti^l
lapse of time. (/i//<Mii!i- v. Shnir i/ ul., 101 |l
100. ('. I-. Chamb. A. Wilson.
I'laintitl's acted as attorney.^ for clefciiiiiiiii
I from I8r)4 to I8.")S. In I8."m they ha.l 1 1'
'claim for costs, which defeiulants settlwl iin ,1
I reduction being made. They coutiiiiud U\^\\
and rendered full bills each half year, i 1^ I
tion being niad<' to them until a sUtin tiio,l
before this ai.'tioii, liroiight liy the pliiiiitilfsii
■laiiuary, IS(iO. Defendants 011 ijviuf: ml
I applied to have tlie bills taxed, not iMiiiitiiiffntil
I any ))articular error, but alleging geiieniUvtluil
the charges were excessive: Held. tliat»l
I "siiecial circumstances" were shewn, ml^t
order WiiM refused as to all liills deliveruij nKdl
than twelve month.'*. Umil il nl. v. 'V, ,„,i^|
.l/i////////.«/, 3 I'. I!. IIS. Cbanili !I:ig:iilv.
.A solicitor had been eii'ploycd t<i riiudiMj
suit, and otherwise rendered proU>»iiiiial o|
, vices. Without furnir'hing a bill In- ilumaikidl
i €!.">, Iiut coia])niniisc'i for the elieiit'.s iiiittiil
140, whieli was ri newcd and ultiiii.itclv |«l
.\ motion bv *■!:>- client, after eleven iiiiinths,!.(|
an ori'.er to furnish a bill ivnd to refer itldrtml
tion was refused with costs. In rr I'Vn-uA
II Sohi-itiir, I ( 'hy. ( 'hamb. 222. V.inKiinfliiidl
In the absence of gross over-charge Mr|(»l
sure, the court will not tax a bill reiultrcilK'l
eral years and treated as paid, the xiictA
having abandoned .any excess dver certain .•ml
' -eceived by him. /?<• 7'A<i»i//«')/), 2Cliv. iluil
I 00. Mowat.
A petitioner seeking to tax a hill i'eii<lt'N«
' a year, must allege and establish iteiiis nfij
charge, and shew special circuin.staiieM, /ii
Ciiiiiirnii. 2 ('hy. Chamb. 311. Taylor. '
Where a solicitor had irregidailv|iiiKitiWl|
tax as between solicitor and client, in tlii'ili
absence, the court, upon a petition jire.*
I seven years afterwards, ordered a taxiitimi, t
' ing the previous taxation as voiil, ami iini
j the solicitor to pay costs of the ii|i]ilic»
Cliiih V. Miiiiiii'rK, Ri .\fiiiiiii ii. \V\\\ >lt\
(e) /'roni-iliiiiis In Thj.
\n application to have a liill ivfeiivii iiniiel
N'ict. c. I7r), s. 20, must be iiiaile in tlit
of such solicitor. Ilmjijaii v. ^,/^^,//, :n.J|
- ( '. 1.. Chamb. Hagarty.
An oitler to tax lietween attnniev m\
must be inotle in the court in wliiol! |urt«|
business is iloiie, and must he fer |inif(i
services. A revision will not I'c (Hiltioil
the grounds of the original taxatinn have
renHon failed, or become or been lniinii l
111 !■!■ JoHi'K V. Kflrliiiiii, 3 I.. .1 '.ftt
Chamb. R<d)inHon.
k comin(Ui law juilge in ChanilK-rsumn
tivxatiim to the prnjier ntfieer ei tlii' I*
(dian ex parte ;»iij)li
Si9
ATTORNEY AND S01J(UTf)|{
33(1
If
linch ail «ii'<0'' ^ waivo.l or akmiloiied by the
I* ,,. y^iio i.l.tJiincil it, it isiiLceHSiary to move to
ISctit ani'lt'- Whether it has or no can lie pro-
Iwrlv ilccitU'il in the t'ourt of ( 'liniieery, ertpeci-
! Jlv'iii a *^*-' wJ'cre one party treating the order
force obtained fro)ii tiie nnwter of that
rant for taxation nnder tlie order,
J 111
,COurt a war
|«D('
Fei.':^ p.iid to counsel at the trial are reeuvera
Die. i!ri>ik- it ,il. V. Hoik/, 3 <^. IJ. 34».
No retaining fee will lie allowed to a solicitor
who is also counsel. /» ;•» Melir'nli Farlri/ v.
Jhiri-t, 2 ( 'liy. Chanili. l.'i.'J. Taylor, Sicnltnii.
Held, that a party who ^ave instnictions to
lu
II . ^ J.- ii 1 :.. . I coniincnce an action without specitvini{ the court
1 n. , i,tlii>r nartv. treating the orileras waived I ,., ., ^ i. i- ^.i i i 1 1 ^
1 tuo otiiLi paiij, "'»••'; .fe , , ^ _ , J. : (the attorney not stating that he would expect
him to pay the ditlerence shouhl the vcnlict he
within the County (.'ourt jurisdiction, and coni-
, niencinu the action in the superior court) was
only liiilile for ( 'ounty ( 'ourt costs between att<ir-
iiey and client, the sum recovered lieing within
lor.abamloin!<l. obtained an iiiilepeiulent onler of
Slit I'Oiirt fi>r tiixation. A coinnion law jmlge
■11 nnilcr such circumstances, decline to inter-
Iwill, unil
jfer /" ''
liilmiii mill /liftiii; lirii,
(. L Chandi. I>rai»er.
i-i:. » L. .1.
(In an ex parte application of a client by pcti- i the jurisdiction of the County (.'ourt, and no
,, ;'ir taxation, ttic common order only can be
appiica
, the col
itaini'il': if a sj)ceial order is re(piired notice
bf L'iveii. /" '■'' A/kiiisiih mill /'iiiliji, I
hv. Cliaiiib. IS7. VuiiKoughiiet.
higher costs being taxable between party and
party. SrmJmi v. MilhniiMiiih, 10 C. l"'. 104.
Practice detined lus to the maiiner in which the
master will tax solicitor's costs for professional
Theeouimon onlcr to tax may be obtained by ; services rendered in the sale of lands and coUeu-
(^clieiit on priecijie ; it is not necessary tijaiip^ j tion and transmission of the purchase money.
' /// )•« /{irfiiiriliini, '.\ ( 'hy. Clianib. 144. Hoyd,
Miiiiti r.
pra'Cipe ;
ja Juilge in (lianiliers for it. In n- Dmi'iil,
tUfi'or, 1 Chy. Chamb. l.'-_'4. Spraggc.
Where the hill had been delivered more thwn
onth, the client must apply for taxation in
kamlttra. otlierwise the order can be obtained
AV liiiiill'iii; '2 Chy. Chamb. 58.
I iiwciiie.
Where an order for taxation had been obtained
nwrte at the instance of one of two
If charges in a bill are unusual or exceptional,
he luis to make out a very clear case to have
them aUowed. /« /•<• A. li., SoUiitnr, 8 I* .1.
X. S. i'l. Boy.l, Miislir.
clients
If the usual charges are made, but the client
complains of negligence i>r unskilfulness, not
10 hail jointly retained the solicitors, such | apparent on the face of the bill, then the onus
ler was set .wde an irregular, /fi' liirhir it i rests on him to establish his case. /Ii.
•>{'liv Chamb. -l'>. Tavlor, Sn-ivtun/. . ... .. .... , ,, . . ,,
-"".*■" • ■ A retaining tec of i.>, was held not taxable
Siicinlcrto tax is not to be granted ex pa.t^'jin this case. Cnlli'ii v. t'lilhii, '2 Chy. Chamb.
the solicitor where there api)ear to be any | 94. -Mowat.
.•\ solicitor upoli the plaintiff's application
. having V)ccn appointed guardian ad litem to iiv
; flint defendants, and lieing unable to recover his
costs from the plaintit)', or from the infants'
jiiulispute lictwecn him and the client. He
ist make known such facts to the court, or the
will he set aside. /" /' Fitrli, 2 Chy.
unV. 288. Spragge.
Such motions fort.axation should be on notice, , estate, it was ordered that they be paitl out of
the reference s'lould, as a rule, be to the
■tor at Toronto. /'>.
Where the affidavit, on which a motion to re ,
, t.ixatioii was grounded, containeil allega-
j nf inisoonduct on the part of the solicitor
;ethei iilicomiected with the dealings bc-
1 tlie solicitor and the client, sucii allega-
Miiv lield to lie scandalous, and were
knil ti) lie struck out of the alhdavit.s. /Ii.
in oilier of course for the taxation of costs is i
|tiilK>(li»eharge<l for the omis.sioii therefrom
, reference to ilefences of which the pcti-
«.rs hail no previous intimation. //( Rnroii, ;
y. I'haiiil). 79. Mowat.
nnler will not be granted for taxation !
11 masttr in an outer i^iunty even on a :
It. AV ,S'(i/;W/.)C.«, :\ Chy. Chamb. 00.-
por, !^fi-i>ttifij. j
the suitors' fee fund. MrKni/ v.
H. r)4. Chy. < 'hamb. Spvagge.
//..
I'/ii-i
(; !•
(fl Wliiil h'iriii'frohl):
rre, whether an attorney suing as an uii-
|lege(l jienion, is entitled to charge fees.
Wr/M. Clrmh. Tay. mi
nnieys Hiiing in ])erson are allowed fees for
ne services as in Kiigland ; but if also a
pittr hi' cannot t-ax a counsel fee to himself
Biiiluctiii;,' his own cause at Nisi Frius.
' •' "'. V. rirghniii, 2 Q. H. -.MiK.
(g) iJ'iJi/iiiiiiiii Ititiiiii'-i:
111 referring to taxation, there is no authority
here, without consent, to I'eserve the right to
dispute the retainer. Itcxist.-<in Knglaiid under
ti & 7 Vict. c. ''.\, which dirt'ers in this from our
C. S. IJ. C. c. H.'i, s. 44. Ill rr Titttm, mi Attor-
ne;/, 21 i). H. 44!(. See, . ontra, /n /•>• /.firix, !(
Ii. .1. SI. » '. I,. Chamb. Morrison.
Where on ail apjilication by a solicitor for a
taxation, the client disputed the retainer as to the
whole bill, and also set up tlic Statute of Fraud.',
it was held that the court could refer these
defences to the master. Ifi Hurnti, H Chy.
» !hainb. 7!l. .\lowat.
Where an order for the delivery and taxation
nf l)ills had been taken out on priveipe on the
application of the administrator of tlie client,
and the fact that the solicitor disputed the
retainer by such client was not brought to the
notice of the court on the issuing of the order,
but it was established that the administrator did
not then kno\« that the i-etaiiier was disputed :
Hidd, that there was no suppression of a mate-
rial fact, and that the order >^'aii regular. Jii n
< 7'oWM, II Sulirilur, hi rr M. V. ('iiiiu'ruii, H Chv-
( 'hamb. 204. Spi^aggc.
.i:n
ATTOimKY AKD .SOLKIFTOH.
.11*
If!
■il
WliL-iv ;i Mitlioitui' has no writtuu retiiiiicr, iiml '
it IH iliHiiuti'd, nitil tliu (.'videncc is (.'Diitlictiii^,
tliiH ooiirt will give wi'iglit to tlii' tk-iiiiil of tlif
iliciit iw uguinst tliu Holioitor. /// /•< AVcA.* mul
I'ltmill, I I'liy. Chaiiib. \Hi'X VanKougliiitt,
Sei- IX. I p. 'A±>. I
(III CiIiI/m of TllJllI'lllll.
Wlivii after uuttU'iiii'iit tlie I'liciit applios for
laxatiuii and notliing \h found iliie to him, ho
must i>uy the costs of aiiiilicatioii. In /> Fnnnix
V. Uoiiliiiii, « I.. J. 'JO. ('. I,. Cluiml). DiaptT.
In IV hill rendered hy an attorney and referred
to the nuiBter, he ih not to take into eonHidura-
tion in determining' whetlier one-Hixth has lieen
taxeil off the liill, so as to make the attorney '
[lay the eontn of tiie reference items which are ■
not properly taxable itenix, Hncii a« slieritl'M fees
and witneH.s fees, &c. , not actually to 1h' leiiaid
to the attorney nor a jiart of his dnini. /» /■<
/>(»(•//, oiii', ,{■<:', '2 L. .1. N. S. 70.
Where one item had 1>een ahandimed l>y an |
attorney after a Hummons taken cmt for tile tax-
ation, hut l)cforc actual taxation, and one sixth
was afterwards struck off the whole liill, includ-
ing such item: -Held, that the attorney was
properly ordered to jmy tlie costs of taxation.
tun- Dacy, ") l'. K. .Vi. Chamh. Richards.
Where a solicitor offered to uiakc a deduction
from his hill, the court hchl that the master \
.tbould not charge the solicitor with the costs of
taxation unless the hill had been reduced one-
sixth independently of the vohint.ary deduction. ,
Re Fi-remnii it >(/., I Chy. Chamb. lO'i. I'stcn. I
Held, where an order, silent lut to costs, \\ as '
mode upon attorneys for the delivery of bills to >
a client, and the bills were afterwards delivered,
an<l a subsequent order made for the taxation,
couts of the reference to abide the event, that
costs of the first order could not Ik- taxed as part
of the costs of the reference : Held, also, that
no order could be made upon the attorneys by a
judge different to the one who signed tlic lirst
ortler for payment l)y them of the costs of the
tii-st order. AV fjenioii <l nl., Atliinii'i/M, I L.
.1. N. S. Mt. C. I„ f'hanib. A. Wil.smi.
Held, that the court has no discretion as to
allowing costs of titxation, w lien the party charue-
able neither obtains the order nor attuntls untlcr
an oi-der obtained by the solicitor, in n Ki n\
•_' Chy. f'hamb. 47 ; 2 L .1. \. S. .lO-J.
Soc Mi-Oill v. S,'.rl,)i,, I f'hy. 311, p. .'{n-i.
(i) Other ('nms.
I)efundant's costs not haxing liccn taxed with
suiKcient Hl>erality as between attftrney and
client, a i-evision was ordered. Ciimirim v.
roinphill, I P. H. 170. f. L. f'hand). Hurns.
An attorney received from his client a note for
£50, the costs in three suits. TIki client lieing
snetl for this note in the name <if one W., appar-
ently a nominal )ilaintiff paid 1120. and gave a
eon/ession for the balance, the bills \ww after-
wards taxtMl at t'lA, and the court then ordered
the attorney to refuml the anmunt o\er paid.
hi re--— , ««'', il'i"., III! the I'OM/i/iiliil III' t'olhorii,
I P. R. 208. r. V. Draiier,
When oil the taxation of a solicitor's costit, tk
muster, without any order as to the oitttn „.
taxation, taxed them and iiu'ludcd tliciii in l,,^
certificate, and a subpccnaand attaehlnciit iH,ii„
in ilue course foi- the whole amount iiiiliiili.,| ,. i
such certiticate, and the client renutincij iiiil„
custody for a consifleraltle time inidertlicattjiil,
ment, ))efoi'e making any application iini'ir,] i
to the supposed error as to tlie costs of tavat',,.
the court refused to set aside the siiIijim.h;, k,
attachment. Medill v. Sijiim, | ('|iy. .'ill.
In a suit of foreclosure on a mortgage tHkcuin I
a solicitor from his client to secnix- advaiu'in ji^'J
costs, the ctiurt refused to direct taxalidn, t|„,^|
Ijeing no over-charges pointed out, or aiiv iiii,|i; I
pressure shew n. Sh'iir \. I)rinii,iiiiiiil,\\\t\
(i(i2.
The liglit oi appeal from ( 'hancciy Ij* >'.iii|iik,||
to orders or dccices made in a caiisu iicihIijuI
between parties. Where, therefore, an apiwjl
was made to this lourt from an order ilircvtiurl
the taxation of a solicitor's bill against liisilifj
in a paiticul.-ir mode, the court disiiii«si,| t||,l
appeal with costs. Iti h'ni iimii >/ „/ •>fi|
X. lOit. "
'I'lie respondent, although he may. i.t imt l«,iii, i
ill such a case to move at an earlier stam i
ipiash the proceedings. //«.
.■\ re-taxation will not be ordered iiiiliuitl
proper chargijs arc s|(ecilied and c.^tiliiisjirtl
KiiMiiiiiii V. FiLitiHiiii, 2 < 'by. < 'liainli, ;t'.'i
Taylor, Si-rri'turi/.
' I. Kiei'i'i'i-il lijl Ael'mii,
(a) Statute ni' Liiiiitiitiinif.
In ;in action by an attornt-y against Im ilwl
for costs of prosecution, it appeared tluttkl
claim was barred by the .Statute of !,iiiiitaii»l
but that the lands of the defendant in tlir ml
had been sold under a li. fa. sued nut uithuiiil
vear.s, and bought in liy this dcftMidamoftitl
Ins own execution : Held, that this M(iii|iii)J
revive the claim, by making the M(Mk
accountable to the plaintiff as if hr jiail itI
n'ceived the costs to his use, liut tliat ciiil;»|
costs of the ti. fa. could be recoviicil. ./,',.
Uiillim, 1 1 Q. W. .'■.54.
The plaintiff 's attorney sued in ISTOiin
of costs ill suits lii'ought for the ilcfiinlaniJ
which suits judgment was entered, rc»|)iii]r«
in I8<)0 and in ISOl, ami executicms ulmh »|
issued in I8(i.'<, had been renewcil ycnrlv. i:i|
feiidant's re<piest, until IS70: llcln, thili
plaintiff could not recover for any m»U iiaii
iK'fore and in the entry of the jiulgimnti.lj
they were entitled on the recovery nl jiiilj
to sue for their bill, ami were laniii M
statute, which then began to run. !Utt<\
ijiiim , L. It. 4 Q. M. (M7, distiii'Miishi'l. /,'
■(■ MeFmliii,, V, />«).•«)),. Ai(). 11. -.'.'t:
lb) nthrr I'iimi.
An attoniuy may sue for his toes in •
, which he does not conclude, i: lie laiiM
I .satisfactorily for not pioirediiijL'. /'".i'''*'!
\ Spnirorif, .">' O. .S. 440. .See .Vh"'/i '' «f
l/rrthiiiii, 2 <>». h. I3S,
.All attorney caiiii
{ s pji'itiif release piiir
hv I'Mtihlish a cluai
I Boiili"M, v.. T. 2 \'!c
hi ill! action by an
I by a copy made up fi
Itnilefeiidaiit, is sufKi
It. '-'Vict.
Wlieiv (he plaiiiti
Itlic nmuiiiit of a bill
Itttumcy ami not in jx
Irileifi', and as.'jcssed
WO, tlie court refii.'jed
tSlfi'i-liini if III \. Hull,
Aciicnt ii(.t having
brtliu Mxation l)efort
kt«cd, liy iirodiiciiig f
lie trial, slicwiiig a I^mi
rlisjillte tile iteiiiM (if
iH'fundaiit »igiii!(| a
a, M his attorneys, to i
ki'iiiiit was lieniliiig, tl
^vcd, and v.. retired,
■gilts. I». alone aitpear
I tlic record : Held, t
• nitU. Ihiiiiiiill X-. I)
'I'hc plaiiitifl; an attoi'i
•tx an Ixitweeii attoin
JH'iiiance defendant j>r(
Bun, (III iiiidcrtakiiig ti
Oii'l ihie. .All attaidiiii,
iij"in tins order, i
Bicli ilofciidaiit paid tin
kintiff'iilad proceeded in
irl"i'iit<iry ,jiidj,'iiieiit. '|
Tciiiiistanccs, ordt.|.,..,| tli
loniev) sliuiild pay tin
nt'Mirt tliat tlu'dctV
HI \w HiidertakJii^r
),'niint.sii,Mild Ik. .set ,
•t the plaintiff n|i.,ii1.|
pliatidii. //, ,/,•;,„ y
ff !■■■"'. Mil li. .-.,ss.
Dtf<iid,iiits, a.s atroinei
iH"rti.'.i,i.'e to H. iiici,.
f"> «as defeated
" r 'ii'Tt-agc fr„i,i
»"i'llter.;nt laii.l. snbie,
I''-". ••'"'I H. authorize.
f t" 1I.S rights as atraii
l»'"'l'i'«aMiita:'-iiii«|
"^''■i';'. Ill* a.iiiiJi,iKt,.,,t„
"''I WMie.1 ..xecutioi
wed tn .,t.,v p,.,H,.,.,.,|i„
U" Iii-li;ni.'nt for th^ o,,.*
«'-■ >int, nior,lcr to ,s,.(
"■' '"■^"^'•1" In answ,.
""■'"" """'tga^.,. a„d
""tot no bei.elit) a,
M."ltcd from defends
'"■Mi'fe'.ncnt .■,^„i,„t
M;«l""l>tl,cphr„ti,r,
^ '^ '" a; iniinstr.-Uioi,,
l"'*'"«lly linhl,. c,
»■* tlie n|,|,|i,...ition „as
'li'xiii H „l_^ ;( |, I
III,
d
ex
lit
Ai
a:»:i
■ ntuu'licy caiiiiut iniiccfil lur his oohIh attur
Imu'I' ruUaHc piiiH (Uuriiii uontiiiuniii;*;, uiiIchh
A'rroKNEY AND .SOLICITUH.
t't. 'I'ai'iiiji •Sfciii'ili/j'ur (.'iiHtn.
:\:H
Held, tliiit II si'i'urity tukuii from ii client by
nil attui'iiuy or counitcl for coHtH to iiuonic in
respei't of Horvicus to Ik." roiulercil to tlif ulirnt,
m In ... acti.... bv .1.1 iitton.cy for l.in Ices, ^.roof i '" '''val't; a.ul c^imot l.o onforcod. y/o;.r v. ( W,/-
9. . V nu.ae up from l.i« IjookHi.'tt-r ik'livury '<•''. -'' <-'. T. 'J4I, follow.'.! in lM>ertH<m v. fV»^/.
bv
Iti
I X. 'j \ ut.
WliCf tl.i' plui.ititli*. .suiiij,' iiH iittor.ii'ys tor
Itlii- iiinui.iit "'' a l>ill of coHts, proi'DCMlf.! liy an
littorm-v ai.il not in iwison by iittiichmcnt of pri-
|!ilc.'i' "iiii'l a»»«.'HSf<l .liiinaufs at a H.ini uiulor
dn'tlic court ri'fiisfil to allow tlioin lull lostN.
0. lull- r C'iis,.-<.
A.i utlonu'V iiiuy bo ordfrccl to icturn inoncys
wliicli he IniH retiiined Iniyund the amount of Iiih
bill AH taxed to the permin at whuMe inNtivncc the
taxation liaH taken idaou under C S. I,'. (.'. e.
8i'>, though such i.erMon Ik- a third party Mho ih
"111
, ^ . , , , liable to pay and liaH paid the bill to the uttor-
V .licut net hanng o .Uunud a i;euular order ,,^ ^^ ^.^^j^,^,, ^^^^,^^^ /,^ ^.^ (;,,,^^ ^,, ,,,
rtl.««ixati<m U-fore the trial, will not Im; al- ,' y,J,,„J,,,^ ,3,.. 1'. 41!>.
,„.i,,l. l,y producing the Master b alloeatur at
jfj,,l_'s(iewin;,' a lesH sum taxed than elainied, A milicitor whose eo.slK have been taxed on
(liMHite the items of the bill, liim-l: v. Hmiil, tlieapplieation of the elient and not paid, a Ii. fa.
HJ. R.W.t, " "
havinu been returned nulla bona, is entitled to
.•III order for the examination of his client touch-
ing his estate and ell'eets
Chamb. H4."). Mowat.
It, HIiih,, I Chy.
jlfin.ilaiit siifneil a written retainer of U.Ik.
k ,u his attoritevs, to prosecute one M. While
Uiv Hiiit wa» iK'uIlii.j.', their iiartiiership was dis- ,,..,,. . . • ■ ,
Tlvctl i.id ••'•• retired, iwHiMiiiiii' to |i. all his A solicitor who is a ineniber ot a niunioipal
■iBiits i> alone appeared as plaintitr's attorney I fouiieil cannot recover from the coriK.ratioii for
the iwi'l : Held, that D. might sue idone I services rendered them, hel)ein},' a tnistce under
-»u DoiKinlt v. 0./v/»»(H, !»(,». W. XA. <-'• S. I'. (.'. c. M, n. t>17. T/iv Voi/H>nitioii .;/'
"•""■ •' Hi, Toiniof /'<t.rhnro\: Hiinil,<n„,\2V. \\\0:\.
'I'lip iiluintill. an attor.iev, sueil defendant for ,,. ^ ,. .• i- 1 • 1 i 1
llicpiamn". " .• ,„.,i ,i;.,„t H.,f,..v. ' '" enforce pavineiit ol scdicitors cohIh ta.xcd
tu OH lictweci. attoruev ami client, netftiv , t .• , , ■■ . ...i . •
iw as iH,v«i<.i .......I .,,. ,.,..1..,. t,„. f,,v , uiioii the petition of the chent. entitled in a
i..iii;\iii'e (leteiidai.t lU'oeureil an order lor tax- ' ■ ' ,• ., in
KiiLURt 11111.11 ; I ..I.,,,,:, I 1.,. cause depending, the proper coui-se, under the
what snoulil oe I , ' ,,?>' .„ ' "i, , . •
u ii.i-.„riil.iri>' w i i'-nd order of \ ice-C hancellor .lamewtii s ordun,
the Dressiire of "* "^ '*"bp'eiia and attachment, though such
iiif tiv...l Till. ' «-'<"'ts include costs at law. MrGill v. .Sc.ittw, I
iintitt'ftlH<'l'>"'-'i'i''l'-''' 'V,*'''' ''"''''>' '''''''''''7 '"■ '"^' '
livi.tiirv iudi,'i..ent. 'I'lie court, under these, (1. recovered a ji'ilginent against D., ami
L'umstiii.ces, orde.'ed that the plaiiitili' las an afterwanls, though i'l insolvent circumstances,
iliDuliI pay the money received liy hiiii 1 itssigned the same iiy two asuiL'nmentH to liis
attorney, one for ' osts due him liy <!., and the
lithe.' fill' a delit I'lie to It. by <i. .Vfterwai-dsC
obtaini'il a iiiiignieiit against <•. and attached
till! ill Ijt SI. line til him by l>., and gave notice
of the attachment til D. before the aHsigiiue of
(i. had given notice of his assignments. I>. paid
the moneys due to<!. liy himself to the sheriH',
under an execution issued at the instance of thi-
assignee of (i. : Held, that the solicitor of <l.
must be restricted to the costs incurred by liini
ithir mMrt;.'age from tlu' same mortgagor to ;„ ^,,p j,^,ji„„ i,r„„gi,t i,v (;. against I)., and that
('ilfori'iit land, subject to two prior incupi- ,. ,„„^^ „t_^,„, ,^„ ,^„ „rdinary creditor. /)«.-/>/-
,1, mill It. authorized their proceedin>i to,,,,,, ^. p„,„,/„,^ l.l fhy. 347.
m tliih miirtgage, exiiressly without jtre- I '
ici til Lis I'iglits as against them. l'>. having '
ln'iiiliiij; a suit ayiinst the dcfcmlants for
SjjeiuT, Ills aiiiuiiiistrators obtained a verdict
it ;iiiil issiieil execution, defendants then
licil til stay prnceeilings until they could
liii illll^ml•llt fur the c.o.sts taxed in the fore-
IV >iiit, ill order to set it oti', H. 's e.*tate,
insnlvint. In answer it was urged that ,.,(„{;„•■„ attornev claimed a lien on the judg-
...ml miirtgage and Im-ecloMirc (wlmh |,,^,^,j^ ,.,,^ j,;^ ^^„^»^ ,^^ hetween attorney and
1 out ot 111. benelltl as well as the ii.sid- ^.,j^.,,,_ ,j,,^ „„,y ;„ ^,,^^^ ^^^^^ ,,„^ i„ „j,„,^
actions between the parties iipcni the same sub-
ject ; Held, that he wa.s entitled only to the
taxed costs !w between attorney and client in thu
suits, lihtfhvr V. liiini, ninl nh'fi'lii r v. .\fiii;<h
,1,1,1 Kirrill, 'i.') il H. O'i.
tiinu'VI sliiiulil pay the money re
(iiirt that tlic dclVinlant should be relieved '
jii his iinile.-takiiig that the inteiliii'iitiiry ■
idwin'iit .sill 111 111 '«' ft't aside witliiiiit costs, and
lit the |ilaiiitilV slumlil I'ay the i-osts of this
■lioiitiiiii. IlKjiiiii V. .\lr I.I 11,1. ill I'l .Mill, I- V.
llKfeiiilaiit.s. ii.< attiinieys, delayed to register •
lilU'ittfiL'e til K. their client, by which the |
Bvitv was ilet'eateil. They then obtaineii
I
1,1 i:n mu I '(IS IS.
I'll irliiil fxli'ni.
'I'lic plaintill li.iving recovered judgnn'nt
against H. and his sureties on a replevin Ixind,
li. moved to have satisfaction entered. The
ire
IS the ii.sol-
ly. ri-.tillteil f.'D.ii ilefcndants' negligein r, and
the luilgmciit against them was the only I
t.iwhii'h tlic n!»intitrs h;ul to look for the
!>M» iif .iilmiiiistration, Ac, fo- which they
imsiiniilly liable. I'lnbr these circuin-
s the n|)))licatir)ii was refused. f.uin'li '>
in''"ii ,1 nl., ;i I'. |{. Ui'.t. Clu^inb.
.\ deed ordered to he executed under a dt'crce
was sunt by the vendor's solicitor, .After being
i.^"
■.m
ATTUHNKV AND SULIOITUH.
uxountud by him, tu tin- dL-I'viuliuitM tu be oxt'cu-
tuil by tliciii, whiuli thuy did buforu their nttor-
iiuy uinploycd by thoin for that piii|M>Hi' : Hehl,
that Huuli iittoriitiy wiut nut eiititu'd tu a lion ii|)oii
the deed Ijvyond \m dixbiiriteiiiuiitH ami for pre-
(Miring the utHdavit of execution. ( 'roui'H v. Slrnl,
I C'hy. C'hiimb. 2*20. ViviiKuughnut.
Sec Hi- Civdi, 4 Chy. Clmndi. 1 1, p. iW.
•_'. Whiii luol.
The pluintiti being the holder of u note niudu
by FranuiM and unih>rHed ))y 'rhonuui Sonierville,
unipluyed H., hin attorney , to collect the xanie,
who sent it t<i C, a clerk of a UiviHion I'ourt, to
iHSUe process thereon. B. obtained judgment
against the maker, and failed against the endor-
ser. Another suit was aftorwanls brought in
the name of the siiiiie plaintill', by instructions
of B. against ThoniaN S. (the eiulorser on tlic for-
mer note) u]ion an alleged promise to join in a
new note with Francis S. , the consideration
lienig the discharge of tiie former jiulgment
against V\ S. in the Uivisiou Court. 'I'lie evi-
dence, although it did not prove Kiiglish (the
plaintiif') tu have )>een :i party ilirectly to the
new arrangement, still shewed that lie was pre-
sent and cognizant of it. I'pon demand made
by the plaintiff upon the clerk of the hivision
(.kmrt for the note, he refused to give it up unless
paid JJilO, and afterwards sent it to B. , the
attorney. An action «f trover lieing lnougiit
for the same:- Held, that the ]daintill' being
present and couni/.ant of the arrangement lie-
iwcon Clark and Thoniivs S., he was to l>c con-
siderutl Jis in iKissession of the note, and as there
can be no lien without possession, B. 's (the
attorney's) claim failed, and tlie plaiiititi' was en-
titled to recover. KmjlUli \ . I'liirl; I'iC. I'. 451.
I'roiierty was sold under order in the suit, and
the conveyance and a mortgage, wliicli was to be
given back to the vendor, were prepared at the
purchaser's expense. .Vfter engrossment of the
dceiU by the solicitor for the purchaser they
were given to the parties for execution, ami tiie
conveyance (executed) was returned to the soli-
citor of the purchaser, tiie mortgage lieing re-
tained by the vendor : Held, that the solicitor
by delivering the engrossment to tlic vendor for
execution liad lost Ins lien thereon for the costw
of pruparatinn, as against the vemlor (the mort-
'agce), anil Mas bound to deliver it i<p to liiin :
{chl, also, that the application to deliver was
jiroporly made in the matter in which the sale
had taken jiliU'c. /»/ llir Siininh, I ( 'liy. ( 'hamb.
39«. Mowat.
A solicitor having a lien on title deeds as
against his client for costs generally, was eiii-
ployud by A. to prepare a mortgage from such
client, when his professional ('onnection with the
uiortgagoe ceiwed. A second mortgage was
created in favour of another person. On default
in such second nil irtgage, the mortgagee sold un-
der a power of sale in the mortgage : Held,
that the lien on the deeds in his posses.<*ion, as
against the niortg.igor, continued as against the
purchaser. <t'ill v. Wonilili; 1,3 Chy. hiil.
The plaintiff's solicitor carried on a suit to
wind up a partnership till a decree was obtained '
and some progress made with the reference there-
by directed. The ]>laintilf Iwcauic enibari-iised,
and assigned to a creditor, in whose name acting '
by another solicitor, the suit was revived
sum was ultimately found due to him :
that the solicitor ot the original jilaintiff I
lost his lien for costH, but was eiititUn
paid next after satisfaction of the eo^ts
scdieitor of the plaintiff' who had coiuln,
suit, out of the fund realizeil. Cliid \
3 Chy. ( •hamb. .T24. Rovd, Mti^h,:
'X Sft-Ufl' of CuMlx.
-V. having obtaineil a decree agaiimt II I
payment of a large sum of money, Ihnih,! T
attachment to enforce payment, ii|hmi Hliichjl
was arrested. The attachment was aft(;r\lJ^il
set aside for irregularity, and an actimi i,„i^\
imprisonment brought by B. against A, ,nii,l J
solicitor. .All iiijuiietion to restrain tlie iirn^^l
ings at law was grunted, but A. and hi, ,„|ki|,|
were ordered to pay B. his costs of the luti.nj
law and of the motion for injiiiietidii. iig,|
ap|)licatioii by A. and his solicitor to net iiHiinil
costs against the debt due by li. to ,\. ; |(^|
that the lien of the attorney "at law f.Mci(,t«iMl
having accrued, and, as by ix-asoii of tin iiMii»|
tion, it never could aecnie, and U. s rii;httoJ
costs being .lerived from an order oi tfii« nmnl
A. was entitled to set-off. I('i7«,„ v »,>,
I'liy. Clianib. ''>. Spragge.
One of several defendants in a e;ui.u a-u
all of whom a verdict had been leedvuMl' ,
allowed, on a summary application aftw juil
inent, to set-off the amount of a jucl.'iiiLiit»2l
he hail recovered against the piniiitill',
the plainiilf's judgment against liim aiiillii,
defendants, saving to the attorney iii!! limil
costs. F'llilllll' v. Ilirksilll rf III,', I
Ti/i/Mti V. Ilmiiki, I I*. I!. ;{(i.-,.
Kobiiison. See, also, llinl v. Smilh, \
Cliuinb. Hidiinson.
Sec Ljim-h v. Wilton, ,'{ I'. I!. |(i!t. |,, xa
t'haui
i'.i;,.i;|
iiiil.l^H IVfenilnnt having
Hi'lil^^Blkiiifiir, H.iH iinlere
lail ri'i^HBey h\» costs, and
I III li^^Kuilo tu revise the
"MV^^^M/iltnl, ('uiiimrA \
li'l t»^^Bluiuih. — KuhiiiMon.
Ill sliuwiiig cause
inlitt, wliieh was n
jiitirt 's attorney in
»t tlif Jilniiitilt owe
J the Hiiit, whieh it
nt of tLe liiiuiey eol
insdUeiit; and tl
ifeniiiiiit aliil liu had
It uf ilia claini aii<l c<
liail heen shewn
court might have |
CHSts, liiit that tli<
;il v,itli respect to ii
\ijmmn v. Hiiuhrgim,
I Where a suit in con
der instriictiims from
omey that lie ig ^^g^.^^
attorney takes no i
Xh of this, and j„.(,c(
nicatioii with the jilu
I U) protected n» to j,
It in made Imtwcen tin
ctof ilopriving |,i,„ ,„
Itoan.ictiiiii .■ig.iiii.st tl
tmpMi, 5 I', a. ((iO.
he jilaintitr ai„l ^\^.f^
lirJdgei.f defendants' f
Bt for toreelosure, in „
Wcrenco liad hoen made
- fijuity of reilen.ptio,;
lo; I'laintitf to them •-
Ifcii.l recovered by ,l,,'f^.|
"•' ''"-'a for his e(,std
tmomh V. JV/Zy,
nb, "i.— Strong,
fi
4. Si It Iv mini iij' Siiil lifi t'l'miU.
If, after notice by plaintill's iitturr,
defendant, a bona tide settlenieiit, iir «;tl
notice a collusive settlement, bo mailcliy4(fa
ant with plaintiff, this court will inuri'tpl
prevent the .attorney being iiiijii.stly ili|inmj
Ids costs. l.iiiKjIi- y. t'l III rill/, .'i (/. |!, liS
Where defendant, an attorney, .Httlul'
the jilaintiH' after a li. fa. had Kiii {lutiiJ
sheriff's liamls, which the defemlaat iiiuitil
known the plaintiff's attorney lia<l i.HsncilJl
wholly for costs, the court ordered the pji
attorney's costs included in the exeiiiticiilil
referred for taxation, and the defcjiilaiitiiij
the sum to the |ilailitiff's atturiiey. »itij
costs of the application. <.'W</i/« v. .!/•«
(^ B. .-);i-.>.
Collusion todepri\e the attoiiii'V nl b^
must be clearly made out to entitle liiinii
ceed for them. Here the plaintit)' iiiliinMl
attorney that he intended to wttle iiillnii
ant, and s.iid that he would sec the nntilj
No obiection was made, nor any iiotitifrt
dcfciKtant not to ji.iy the plaintitr;
numths after the settlement, flic iiLiinli/IJ
iiiHoIveiit, the attorney issued a li. k kt
costs; Hehl, that the writ nni.st \\ *if
lintwii V. Cnnrntl, 2 P. \\. 20N. I'l '
Hichards. Sec, also, Phmi \. Siov. I'^Rl
JM
•'>. Olher ri
N.w,aj,totherightof.j
«;" .Recount l,eli.„gi„,
J' /ana. .1/,/^,,,^, M
l-L. l,.Uuml,,-|{„|,i„.J
H. attorney'., ],•,.„ f„, [
■^.'"jtiUid 11. tin, wayl
'Jmrnlav. milhc,','^
h "w applicition of J
pill k- (hsch.irgeil as .,, J
r«i,'"".t whim, «,„,,•'' -'^l
r'^r" the lion i„ f,«3
pM Hfferer. '
r»yi'Plic.itionfortll
|^tHh„mtheatt.uJ I
M,he8«.«itortheannjJJ
If
1)37
ATTORNEY AND SOLICITOR.
538
Tk'f'iuliint havint; «uttlnl coUiisivfly witli tlii! | Where ii Holioitor ri'fuMfil to cnrry on a suit
tUr w:is oriluriil to pay tin; jdaintiir's attor- 1 uiiIcmh iiioiify was ailvaiiouil, or to ilelivenii) tlio
'" ' mill ;>n jiii'i)lii'ation at'tiTwaiiU i iiaiicirt to u new nolu'itor until liis coHtH in thu
tliu taxation ol hui
I'
ll COHtM waH
11. II'J.—
i,W to ruvinu
huuili. " ll"'''""""-
111 nhowiiig cause ayainst u rulo to set atiitle a
ij^-t »liii:li was not nioviil on atliilavit, tlie
'diititi's attorney irregularly tiled an ath.lavit
the iilRiutill owed liini €H(I w lien he in«titu-
I the suit, whieh it waw agreed Hhould lie paid
Bt of tbe money eolleeted ; that the i.laiiitdl
insolvent; and that he had no donht the
rftiidaiit and he had eolluded to .leprivo depo-
j„f his claim ami coHtH. Senilile, that it' these
tg hail l)ce" shewn on a proper application,
court might have protected the attorney in
c«9t8, liut that they could not have inter-
^1 witii respect to hi:< interest in the claim.
V. H'lidtrgnii, •_'! g. H. 447.
WliiTe a suit is eoininenced anil carried on
ItT instructions from a person who tells thi!
meytlmtheia agent for the plaintitV, hut
Rttiiruey takes no trouhle to ascertain the
of this, and proceeds witlutut any eom-
cjtion with the plaintill', the attorney will
bo iirotected as to his costs where a settle-
itisniado hetwceii the parties whieh has the
jt of depriving him of liis lien, hut will lie
to an action ag "list the plaintill'. Smi/li v.
iiijwoH, 5 r. U. It'ti. I'hamli. - tJwynne.
he iilaiiititf and defendants, without the
wledgeof defendants' solieitor, comiiromised
it for foreclosure, in which the usual decree
ierenoeliad heeii made, defentlants ndeasing
eiiuity of redemption for .<"J00, wl.icli was
hy iilaintitl to tiiem : Held, that ♦here was
fcml recovered liy defendants' solieitor, and
110 lieu for his costa hail ever existed.
iiHomh v. Titlli/, Jit FitirJaii-n, 3 Chy.
lb. 71,— Strong.
.1. Oilier CnnfA
lucre, iia to the right of an atiorney to detain
.if yciouiit lieloiiging to his elieiit, on an
jetl cUiiu. McLean v. M<iillciiil, 5 L. J.
I-C. I.. Chamh,— llohinson.
ttoniey's lien for costs ;is l)et\;ecu him
Ikis client, the judgment debtor will not he
eiitostiunl in the way of an attach nent.
IV. Ilnu'iji, 'J 1'. K. 3r)0.— (^ H. ; Honk ./
r''iimi(/a v. WalldCf, ih. 35'J.— (Jhamh. —
Bn the aiipliciition of a solieitor having a
I ri'sjicet of a debt attached, the attaching
\ys'\\\ lie discharged as against him, hut the
Itg.iiiuit whom such an order has lieeii made
leiititlcd to its discharge on the ground of
latenceuf thuhen in favour of his solieitor.
|v. ra(wi((iiW, r. U. !)().— (Jhy. Cliamh.
nested. Referee.
terc an application for the discharge of an
'ng order was made nominally liy a plain-
linstwhoin the attaching lu'der had hcen
d, but re.illy by and for the benetit of his
p, who had a lien on the debt attached,
»M given to amend the proceedings by
{the solicitor the applicant, and the urilvr
icharged, but without costs. Jb,
22
suit were paid, the eourt ordered a taxation, and
direeted the papers to be delivered ui> to the
new iiolii'itor upon his undertaking to hold thuin
subject to the lit ll, if any, of the former solici-
tor, and to re-deliver them within ten days after
he eeased to have occasion for them for the pur-
poses of the suit. Lii/ V. liroH'ii, 1 C'hy. Chaub,
17!l. Spragge.
The rule that ;'. solieitor is bound to produce
doeuinents subjeet to his lien, does not apply
when the person asking for their production la
the party to iiay the amount clainied. Moodiev,
T/itiiiKtu, I Cliy. Chanib. IK. — listen.
An award for an amount, together witli cnnti,
having been made in favour of a party, the cost!
were taxed by consent, and the amount promised
to be paid to the solicitor of the party ordered
to receive such costs. A garnishee order was
Mubseipieiitly obtained by a third party, under
which the amount awarded and the costs were
(laid over to such third party, with notice, how-
ever, of the solicitor's lien for the costs. Under
these eireunistances, a motion made to stay pro-
ceedings to enforce payment of the costs under
the award, at the instance of the solicitor to
whom they were payable, was refused with costs.
McLiiiii V. limllij, I Chy. C'liamb. 138. — Van-
Koughnet.
\ mortgagor after foreclosure, having retained
the title deeds, delivered them to a third party
to whom he had sold, whoso solicitor claimed a
lien as against such third party, and declined
to deliver them to the mortgagee. On a motion
for that purpose, an order was made for their
delivery. Stiiinellv. Aruijn, 2 Chy. Chamb. 218.
—Spragge.
See Crooks v. Crooks et al, 1 Chy. 67, p. 313.
X. MlSlELLANEOfS CaSB8.
The rules of this court of lilichaelmas Term, 4
Geo. IV., respecting the serviceof pleadings and
papers in a cause on an attorney residing out of
the district in which the action is brought, apply
eiiually to all districts, and to the attorneys for
both parties in the cause. Cleinow v. Her Majea-
h/'t OrdmiiH-r, .1 (l B. 4.")8.
In an action against K. and S. , a firm of soli-
citors, on promissory notes endorsed by B. in the
name of the tiriii, it was proved that on other
occasions S. had endorsed in the Haine manner,
and as the witiies > believed with H. 's knowledge,
but it did not ajipearwhat the consideration was
for the endorsements sued on, or that S. knew
of them : -Held, sullicient evidence to go to the
jury of a mutual authority ; and a verdict havina
lieen found for the plaintill', the eourt refused
to interfere. Workman v. SicKitistry et al., 21
tjl. n. (122.
A practising attorney may be a surety in an
election petition, lie Hamilton Kkclion, 10 L.
J. N. S. 170.— C. L. Chamb.— Dalton.
A solicitor, whose costs have been taxed on
the a]iplication of the client and not paid, a fi. fa.
having been returned nulla bona, is entitled to
an order for the examination of his client touch-
ing his estate and effect*. Re Bain, 1 Chy,
Chamb. 34C.— Mowat.
!■ 1,
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IMAGE EVALUATION
TEST TARGET (MT-3)
1.0
I.I
1.25
i^ II 2.8
IIIIIM
\m
|io 113.2
\m
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1.4
1.8
1.6
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PhotDgraphic
Sciences
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WEBSTER, N.V. Hi^O
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S3&
AUCTION AND AUCTIONEER.
m
ATTORNEY AND SOLICITOR GENERAL.
I. Informations, 339.
II. Miscellaneous Cases, 340.
III. Party to Bill in CiiANCEiiy— »S^ee Plead-
ing IN Equity.
I. Informations.
In an action in the nature of an information
filed by th> i attorney general, costs will not be
allowed to the defendant against the crown.
Jiegina v. Maimcarimj, 5 0. S. 670.
The proceedings in an ex-ofiicio information
may be either at the suit of the Queen or the
attorney general, but the defendant cannot be
. lied upon to plead in vacation upon a rule to
plead given in vacation, but is entitled to a reg-
ular rule to plead, and an imparlance, lieijina
V. Burnham, 1 Q. B. 413. — P. C. — Macaulay.
To an information of intrusion filed by Her
Majesty's attorney general for the Dominion,
prosecuting for Her Majesty, the defendant
pleaded that the lands mentioned were not
ordnance property, or property in any manner
under the control of the Dominion of Canada ;
but, on the contrary thereof, the said lands
became upon the passing of the B. N. A. Act,
1867, and still are the property of the Province
of Ontario, in which they are situate. Issue hav-
ing been joined on this plea, the title at the trial
was gone into, and a verdict entered for the
crown, with leave to defendant to move to enter
it for him : — Held, that the crown was clearly
entitled to recover, for, among other reasons, the
plea set up no title in defendant, and admitted
the crown title by stating the lands to belong to
this province ; and the fact of the attorney general
for Canada prosecuting for the crown could not
shew that a Dominion title was necessarily claim-
ed. Attorney General v. Harris, 33 Q. B. 94.
Remarks upon the form of and defects in the
nisi prius record. Ih.
An information in the name of the attorney
general not signed by him, but on which was
endorsed a fiat, " Let the within information be
filed," — Signed by the solictor general : — Held,
irregular. Attornej/ General v. Toronto Street
Jiailivay Co., 13 Chy. 441.
There is no precedent for dispensing with the
signature of the attorney general to an informa-
tion. S. a 2 Chy. Chamb. 165.— Mowat.
Where in his absence from the province an infor-
mation was filed without his signature, but having
endorsed thereon a fiat signed by the solicitor gen-
eral, it was ordered to be taken off the files. Jb.
Where an information had been amended by
merely adding a party by the direction of the court,
a motion to take the amended information off the
files because not signed by the attorney general,
was refused. S. C. lb. 321. — Taylor, Secretary,
The provincial attorney general, and not the
attorney general of the Dominion, is the proper
party to file an information, when the complamt
IB not of an injury to property vested in the
crown as representing the government of the
Dominion, but of a violation of the rights of the
public of Ontario. Attorney General v, Niagara
Falls ItUernational Bridge Co., 20 Chy. 34.
The provincial attorney general is tbc mn
person to file an information in resjieet of a n'
sance, caused by interference with a railway, /i
II. Miscellaneous Cases.
A writ of certiorari lies to remove onletsJ
sessions relating to the expenditure of tlie4|
trict rates and assessments, at the instance of tj
attorney general, without notice. Ifex v, Jutikji
of the Newcastk DiMrict,\)Ta,. 114.
A patent from the crown appointing a \m\
ler a Queen's counsel, directed that he shotB
take precedence next after another Queen's wij!"
sel who was subsequently appointed attomj
general : — Held, that such patent did not tla
,..,i.:ii„ ijjjij ^ precedence before tlie solicit
In re Boulton, 1 Q. B. 317.
entitle
general.
Where tlie attorney general is a defendants
does not answer, the proper course is to obtj
an order that he answer in a week, or that t
bill be taken pro confesso. Slfa v. Ftllmi,}
Chy. Chamb. 30. — Spragge.
The attorney general is never made to paycoiiJ
even upon interlocutory applications. G'lVjuij
Clench, 1 Chy. Chamb. 69. — VanKouglmet.
The attorney general of the province is t
oificer of the crown who is considered as ]mi
in the courts of the province, to assert tlie r^
of the crown, and of those who are under i|
protection. Attorney General v. Xkujara Fs\
International Bridge Co., 20 Chy. 34.
ATTORNEY, POWER OF.
See PKiNcirAL and Agent.
AUCTION AND AUCTIONEER
I. Auctioneer.
1. Duly and Liability of, 341,
2. Bight to recover Price, 341.
3. Authority of, 342.
4. Lienjf, 342.
II. Contract of Sale.
1. Conditions of Sale, 3i2.
2. Statute of Frauds.
(a) Sufficiency of Wrilings, 342.
(b) Acceptance and Part PaijiiHt,i
3. Representations and Warrantij, 3+t |
Biddings.
1. Conduct of Sale, 345.
2 Sales of Land by order of the CmrtA
Sale of Land iiy okuek or 1,
Court.
Sale of Land for Taxes-* f :
ment and Taxes.
Sale of Land bt Ordek of the Con
Sec Sale of Land uy Ohmr o'^
Court.
Sale of Land under Exscmos-
EXECUTION,
III
IV.
VI.
2. Bight to recoi
41
AUCTION AND AUCTIONEER.
342
I. Auctioneer.
3. Author if y of.
1. Dutj/ and Lkthilihj of.
, jjijtion will lie against an auctioneer for
yiine goods at a ruinous sacrifice, if the jury
U tliat he has acted negligently and disre-
led liis Ju'-y ■' '^"'^ ^* ^^ "'' misdirection to tell
"l jufy that the low price obtained is evidence
'j to them of negligence. Cull v. Wakefield,
..S. 178.
I The plaintiff before the sale gave the sherififa
VmoraiKhim authorizing him to bid on his ac-
int to the amount of the debt and costs in the
It Under this the sheriff, instead of bidding
iduallv W'l ■'** ^""'^ ^^^° ^^^^ amount, and
m;ht in the land :— Held, that the plaintiff
iJclearly no ground of action against him for
rdcing; and— Qua}re, whether the writing
lid b« construed as more than an authority,
J whether, if the defendant had disregarded it
btether any action could have been main-
til ifarkle v. Thomas, 13 Q. B. 321.
liii auctioneer is not bound to accept all bids,
li matter of course, from persons present at
k auction. An action, therefore, will not lie
{refusing to accept such bids unless by reason
fiome special condition or terms of the sale.
Ultr V.Jackson, 11 C. P. i543.
2. Right to recover Price.
..here goods were sold by auction, but being
( bv the purchaser were re-sold at a loss, and
I purchased by a partner of the auctioneer,
ish in iinother business totally distinct from
j ot auctioneer ; and an action was afterwards
light hy the auctioneer to recover from the
I purchaser the loss on the re-sale : — Held,
tit was no good ground of objection to such
ion that the goods on the re-sale had been
jehaaod by such partner. Clarkson et al. v.
Jf,2Q. B. 361.
b an action by an auctioneer against a pur-
jer for goods sold, the purchaser pleaded that
Helivered the goods to the auctioneer to sell ;
ik. was the agent of B., to whom the goods
iged, and that he (the purchaiicr) had a set-
jsinstB., which he ple.aded : — Quc-ere, could
Iporchaser plead the set-off against B., with-
T further alleging that the auctioneer sold
V goods to him as the auctioneer of B. ?
Iisnn, C, J,, was of opinion that he could not.
Vi J., diss. Macaulay, J., and McLean, J.,
) no opinion on this point. Wakefield v,
|i(,5Q.B. 160.
an auctioneer's conditions of sale, pur-
I to an amount exceeding £30, were to
J"!ix nonths credit, gi^ang approved in-
1 notes :"— Held, per Cur., (Robinson, C
) that a purchaser over £30, upon these
Lwasa purchaserunconditionallyon credit,
fculd not he treated as a purchaser for cash
|hi« refusal to furnish the indorsed note ;
I he could not consequently be sued on the
N count for goods sold and delivered un-
let the expiration of the credit, that to a
1 action brought by the auctioneer against
irchaser before the credit had expired, for
Ting the indorsed note when requested, a
i «et-off would be inadmisBible. Wakefield
N'i'iSQ. B. 159.
If goods are sent to an auctioneer to sell, and
the principal afterwards directs him not to sell,
but the goods remain in his possession, and aro
purchased bonll fide by a third i)arty, who has
no notice whatever of tho revocation of the
authority, such sale is good. Gunn v. Uillespie,
2 Q. B. 151.
4. Lien of.
An auctioneer has no lien on maps left with him
to sell land by — such plans not being regarded
as title deeds, which are (juasi part of the land,
Blackburn v. Macdonald, G C. P. 380.
II. Contract of Sale,
1. Conditions of Sale.
Wliere the conditions of a sale by auction are
stated in the declaration as being imposed at the
time of sale, the defendant cannot be discharged
from them by any agreement before the sale ;
and a plea containing such defence is bad on gen-
eral demurrer. Mead v. Hendry, 1 Q. B. 238,
2. Statute of Frauds.
(a) Sufficieticy of Writings.
The auctioneer himself need not sign the pur-
chaser's name, it may be done by his clerk at the
time ; and the clerk of the owner of the goods
sold ; acting openly at the sale for the auctioneer,
is his clerk to bind the purchaser. Sandford v.
O'Donohoe, M. T. 4 Vict.
The signature of the clerk of an auctioneer on
behalf of a purchaser, is sufficient to charge the
party purchasing, within the statute. Clarkson
V. Noble, 2 Q. B. 361.
A sale of goods by the sheriff or his bailiff under
execution is within the 17th sec. of the Statute
of Frauds, and either of them maj- sign for the
purchaser the memorandum in writing, in the
same manner as an auctioneer or his clerk.
Flintoft v. Elmore, 18 C. P. 274.
The entry of defendant's agent as the pur-
chaser is sufficient, if the defendant afterwards
acknowledge the agent's authority, as was done
here. lb.
In this case a person requested by the bailiff
to act as his clerk noted in pencil on the back of
a letter the name of each purchaser, the article
sold, and the amount bid ; and after the sale
was over, but on the same day, the bailiff made
out a more extended memorandum, headed " List
of goods sold and by whom bought, 17th Octo-
ber, 1866," and containing the article, the pur-
chaser's name and the price. This he signed
"D. Howard, bailiff :" Held, insufficient, for it
did not appear who the seller was, or the terms
of sale, and the second memorandum could not
bind, for the bailiff's authority continued only
during the sale. lb.
The purchaser after the sale wrote to the
deputy sheriff, speaking of the engine, one of
the articles alleged to have been sold to him, as
! tJl
! 'Si
: ;i
■i •, '■
i
II
348
AUCTION AND AUCTIONEER.
m
1 ^ : '^
1
1
i
ffl[Kt
1 «
being on hia lot, which belonged to him, .and
having been bid in for hinj by Mr. T. (tlic agent
who had purcliased at the sale), and saying that
he had heard the sheriff's fees liad not been paid,
and that he intended to sell again : — Hold, in-
Buttieient, for it did not shew the terms of the
sale, and it was not evidence of a delivery to
satisfy the statute, which the other evidence
tended strongly to disprove. Jl>.
A paper used at the sale by auction of certain
landj contained the conditions of sale, and the
numbers of the lots bid off by the several pur-
chasers, upon which their names wore written in
pencil opposite the lots j)urchased, and afterwards
covered over with ink by the auctioneer's clerk,
it having been announceil before the sale that he
would sign for the several purchasers : — Held,
a sufficient signing of the contract within the
Statute of Frauds. Crooks v. Darin, C C'hy.
317.
The conditions of sale must be annexed to the
list of purchasers, so as to make a complete
contract to bind the vendee under the Statute
of Frauds. SamlJ'ord v. O'Donohoe, M. T. 4
Vict.
The signed list should shew the weight and
value of the articles purchased, and the price
given for them. lb.
A signed agreement expressed that the sub-
scribers had purchased at auction the lots of land
set opposite to their names respectively, (tcconl-
inij to the terms of sale, made known at the lime of
sale, and they agreed to take the deed, bond, or
agreement, or lease, as the case might bo, to each
of them individually, on condition of their hav-
ing made the payments accordimj to the condltionn
of sale. The conditions of sale, thus referred
to, had been printed and distributed in hand-
bills, and were read to the purchasers at tlie
auction : — Held, that the conditions of sale were
sufficiently referred to by, and incorporated
with, the signed agreement, so as to constitute
a binding contract in writing, within tlic Statute
of Frauds. Dalton v. Me Bride, 7 Chy. 288.
The conditions of sale appeared in the printed
bill of the sale, and were announced by the auc-
tioneer. The purchaser's name was entered by
the auctioneer's clerk on one of several sheets of
paper uae<l by him at the sale for entering the
purchasers' names, but these sheets were not
attached to the printed bill : — Held, that there
was no contract- within the Statute of Frauds.
Kaitling v. Parkin, 23 C. P. 5()9.
In an action on the common count for land
sold, it appeared that the land in question was
put up at auction under hand bills signed by the
Slaintiffs, and having been knocked down to the
efendant, his name was entered as purchaser
in a book by the auctioneer's clerk, and he paid
the deposit required down, biit he afterwards
refused to pay the subsequent instalments. A
bond to convey had been executed by the plain-
tiffs, and left ready for defendant, with a bond
for payment of the money, which defendant did
not execute :— Held, that the plaintiffs could not
recover, for the land was not conveyed, and
therefore an action on the common count would
not lie : — Held, also, that there was no contract
for sale sufficient to satisfy the Statute of Frauds.
Thomas et al. v. Boss, 19 Q. B. 370.
(b) Acceptance and Part Pai/moit.
An offer by a purchaser at auction to soil tf I
another person the goods purchased by liini, ,|,^
not constitute an acceptance of tlu'm t'l vA,
the case out of the Statute of Fraud.s. Chrl- '
V. Nohle, 2 Q. B. 301.
Where at a sale by auction defcmlant m-
chased goods on the couditiim of funiisliinl.i!|
dorsod notes for the amount, witli tliu (iptii.c,
obtaining a discount of ten per cent, for casli ani
that if the conditions were not complitd ,.j,jl
the goods were to be re-sold at the riskufttil
purchaser, and after the sale the defeiulant iiaijl
£15 (m account, but performed no otlier panJl
the conditions, and the plaintiff re-poMthfixAl
at a loss :— Held, that the part payment t(4 tit I
case out of the Statute of Frauds, so hh tmlisiiei^l
with the necessity of proof of a written cnntraiij
and that such payment could not be Cdnsiilfrjl
as depriving the jilaintiff' of tlie riglit toreifil
and make the defendant resjion-sihle fur tlie 1^1
on the re-sale. Furniss v. iSawers, 3 Q, B. ;;.
The conditions of sale required approved cotf
for the purchase money. The mnriiing aftwtlil
sale the purchaser called on the seller amldrstl
a note, signed by himself only, for the giwijlsl
said he had purchased. A dispute arose as tii|
the goods to which he was entitled, and heffail
away leaving the note. Some (lays after Isl
returned and otTered another note with siiretia,!
■which was refused, and the seller on the saial
day sent back the lirst note : — Held, ikarlvE-l
sufficient to take the case out of the Stattsil
of Frauds. KaitUii;/ v. Parkin, 23 C. 1'. Mi
See Flintoftv. Elmore, 18 C. P. 274, p, 3t'.
2. Representations and Wurrantii.
An auctioneer at an attempted sale of j
warranted them, saying they were his owu, jljI
ho would stand between the purchaser an41« I
Having sohl the property by auction afevilaril
subsequently to a bidder on the forniuroocasiiil
and the goods having been claimed ami tjiaj
by a third party under a chattel mortgage wW I
covered them, the auctioneer, upon an aotiiinfjl
money had and received, was held respnnsilileBl
the iiurchaser. Somersv. 0'/)ciho/i«(>, lIC'.P.'lI
In a printed catalogue of articles forsaltil
bull was stated to be "a sure stock-getter.'laj
at the commencement of the sale the auctiowl
publicly announced that the seller (ilefendinl
warranted nothing : — Held, that the plaiiitiiriiiil
purchaser) in an action as for a breach of »l
ranty, was f)bliged to shew that the warnntT,f|
any, contained in the catalogue was im[«iit«|
into the sale at auction at which lie '
Craiy v. Miller, 22 C. P. 348.
By the advertisement of an inteiulcil sal(«|
land in h)ts, it was stated, "The foilisrif
adapted for gardening i)urposes, and a 04^1
erable portion of the property is covemi mill
fine growth of pine and oak, which wiU )i«liil
large quantity of cord wood, and the romaitil
is covered with an ornamental second ^nviiM
evergreen and various other kinds of trees. 11
purchaser at the sale, which took iilaoe upiDaj
property, set upas a defence to a suit fors[««l
performance that the soil was not sucli n ™|
represented, and was unfit for gardei4' pi
Bt. Watson v. James,
l\5
BAIL.
3i6
wises and that the trees upon the propertywere
I otot the description set forth in the advertise-
1 Held, that these representiitious liaving
Wn made i" respect of matters wliicli «oro
cliiects of sense, and as to which an intending
nnrchaser ought in prudence to liavo examined
L himself, fonned no ground for relieving the
purchaser from the contract. Vrouka v. JJavis,
ilchy.317.
III. Biddings.
1, Conduct of Sale.
An agreement to pay money on a party's not
Ibidding at a 8herifl''8 sale is not void as being
Ijontrsry to public policy, when the party making
Itiie aizreement thereby insured the withdrawal
Igf a claim from the land. Waddel v. McCahe, 4
10. S. 191.
WTien out of an audience or attendance at a
lltle of twenty-five or thirty persons, three or
Ifour were induced to refrain from bidding be-
|«u9e they were informed that a person who
Iwas attending at the sale intended to buy the
Iproperty for the fa.uily of the debtor, the court
'fused to set aside the sale which was made to
Bch iierson upon a small advance upon the up-
let price, although the person purchasing did so
br the benefit of persons other than the family
(the debtor. Brown v. Fisher, 9 Chy. 423,
A person attended on a sale of land, and stated
^at he was buying on behalf of his brother's
imilv, the effect of which was to prevent eoni-
Mtition at such sale, and he became the pur-
phascr, but he subsequently refused to admit
ie right of the plaintifis, his brother's family, to
wkemthe property in his hands. The court
JeoLwedthe plaintiffs entitled to redeem, and
■dered the defendant to pay all the costs of the
lit. Watson V. James, 19 Chy. 355.
• A sale of lands by auction being about to take
Jace, an intending purchaser, in conversation
tith a person who had previously purchased a
jortion of the same property, was told by him
lat he intended buying additional portions
lereof, and that he expected the property
rould fetch about £70 or £80 an acre, and that
(was prepared to go as high as .£100 per acre
! that portion which he intended to buy. It
s shewn that by an arrangement between the
Iter of the estate and this person it was agreed
|t he should have the lots desired by him at
(same price as he had paid for his first pur-
ise, no matter at what price they might be
ocked down to him ; and they were accord-
jly bid off by him at a rate much higher than
pit fi)rmerly paid by him : — Held, that this was
\ pnffiing, although it might have the effect of
(leading the intending purchaser, who swore
Ht he had reliance on the opinion of this party ;
\ as he did not swear that he had been inliu-
by the examjile of this person or the
))rmation thus given by him, the court decreed
jjeciiic performance of the contract for the
tchase of certain portions of the estate bid oflF
1 at the auction. Crooksv, Davis, 60hy. 317.
AUCTIONEER.
! Auction and Auctioneer,
AUDITA QUERELA,
The court refused to grant this writ where the
applicant had no other privity with the judgment
than as alienee of the land taken in execution,
anil having acquired his interest after execution
issued. Jknrd v. Ketchmii, 8 Q. B. 523.
A judge in chambers will not in general enter-
tain or enter into a (juestion as to the validity of
an order of discharge for infolvency in the nature
of a bankrupt's certificate, xinder 19 & 20 Vict,
c. 93, but will rather let the point be determined
by way of audita querelil. Scliujield v. Bull, 3
L. J. 204.— C. L. C'hamb.— Burns.
AUTRE FOIS AQUIT.
See Criminal Law.
AVERAGE,
See Insurance— Ship.
AWARD.
See Arbitration and Award,
BAGCAGE.
I. Ltabiutv ov RAir.wAV Companies— <S'ee
Railway Companies.
BAIL.
I. Application for Allowance of, 347.
II. Indorsement on Bailable Writs, 347.
1. Capias — See Arrest.
III. Bail Piece, 348.
IV. Bail Bond, 348.
V. Justification, 348.
VI. Proceedings against Bail.
1. Staying and Setting Aside, 349.
2. Practice, 350.
3. Pleadings in Actions on Bail Bond, 350,
Vn, DiscHARG. OF Bail.
1. Bj/ Surrender of Principal, 352.
2. Under linnkruptcy or Insolvency Acts,
354.
3. By Arrangement with Principal, 354,
4. Other Caaas, 355.
VIII. Bail to the Limits.
1. Who may give, 355,
2. Bond.
(a) Form of, 356.
(b) ^WoM-ance o/, 357.
(c) Assignment of, 358.
(d) Breach of, 358,
3. Separation of Counties, 360,
lil
IB
i 1
'*§-
H. I
' M
w
347
BAIL.
m
I'Hi- .
4. Commitment to Close Custody, 360.
5. JRelief of Bail, SQL
6. liiyhts. Duties and Liabilities of Sheriff",
361.
7. Action on Bond to the Limits.
(a) Pleadings, 362.
(b) Practice, 363.
(c) Damages, 303.
(d) 0</(er Cajtfs, 364.
8. Other Cases, 364.
IX. Miscellaneous Cases, 364.
X. Bail in Paeticular Cases.
1. In Criminal Matters — See Ckiminal
Law.
XI. Other Matters.
1. Affidavit to hold to Bail — See Arrest.
2. C narging in Execution — Sea Prisoner.
3. Recognizanca of Bail — Sea Recouni-
zance.
I. Application for Allowance of.
A rule for allowance was refused, where since
their justification one of the bail had absconded.
Billings et al. v. Loucks, 5 O. S. 78.
Where the notice to plaintifif was that special
bail had been put in, and the recognizance pro-
duced was only for the limits, the application
for allowance was refused with costs. Clegg v.
McNab, 1 P. R. 150.— P. C— Draper.
required by the rule of court, it may be amcuilhl I
Keefer v. Hawleij, 1 P. K. I.— P. C-McUai
II. Indorsement on Bailable Writs.
A bailable writ must be indorsed with the sum
sworn to. Armstrong v. Scobell, 3 0. S. 303.
Although it be sued out by an attorney in per-
son. Washburn v. Walsh, 4 0. S. 322.
The claim must also be indorsed on the bailiflf's
warrant, as well as on the writ. Steele v. Lam-
eux, E. T. 6 Will. IV.
Semble, that an alias bailable writ must be
endorsed. Moss et al. v. Balfour et al., 5 0.
S. 683.
A rule to set aside process for want of an in-
dorsement of the plaintiff's claim was refused,
where the omission had been supplied two hours
after the arrest, and before bail was put in.
Smith V. Smith, 4 0. S. 10.
The arrest was set aside, although the omission
was supplied immediately after it. Gibbs v.
Kimble, 1 Q. B. 408.— P. C— Jones.
On such an application, the defendant must
shew by affidavit that the cause of action is a
debt. Leggatt v. Marmott, E. T. 3 Vict.
Where the indorsement directed the sheriflf to
take bail for too large a sum, the court allowed it
to be amended on payment of costs. Grantham
V. Peters, E. T. 3. Vict.
Semble, if the sum be mentioned in the affida-
vit and written in the margin of the writ, that
would be sufficient, without indorsing it on the
writ. Sligh v. Campbell, 4 Q. B. 255.
Where a ca. sa. in debt has been issued on a
judgment in assumpsit, and not endorsed as
III. Bail Piece.
According to the old practice, a hail piecji
must have been transmitted from thu country to I
Whitney v. St'A
a judge of King's Bench.
Dra. 235.
Where there are two plaintiffs with thesauij
surname, the non-repetition of the surnand
after the Christian name of each in a bail Ui^ I
is only an irregularity, and will not warrant tli I
plaintiffs in taking an assignment of the Id I
bond. Meighan et al. v. Brown, l)ra. 167.
A bail piece in which the plaintiff or defen. [
dant is incorrectly named may be amended witl I
tlie consent of the bail. Daniell v. Jamu •!
P. R. 195.— P. C— Jones.
A bail piece may be intituled of a term w. L
ceding that in which the ca. re. is retunia Je ; tnj I
the bail piece must state in the margin the'dii,!
trict from whicli the process issued with that in I
which the bail is taken as thus : " Testatum fn I
the Home District to the Niagara District' T
Ward V. Skinner, 3 0. S. 163.
The bail-piece need not set out the writ m 2
which the defendant has been arrested j itismd
therefore necessary that the certificate of tin I
clerk of the crown and pleas, of tlie defendal
having filed a recognizance of bail, and affiiiaTJil
of the justification of bail, under 10 & 11 Vict I
c. 15, 8. 5, should state the writ on whicli tkil
defendant has been arrested. White v. PtkUl
Q. B. 1.— P. C— Draper. '
In the warning to defendant in awritofcapiij
it is proper to direct the bail piece to be tiled ill
the office of the clerk or deputy clerk of till
crown and pleas for the county from wliial
process issued, although a county different lij
that in which the arrest is made or bail given |
Hubbard v. Milne, 1 L. J. N. S. 14.— 0, LChsBkl
—J. Wilson,
IV. Bail Bond.
A bail bond is irregular in a case where till
action was commenced by process not \>)MA
and the arrest made on bailable process a.i»|
appearance entered. Douglass v. Poi(v//,2(i|
S. 219.
A bail bond conditioned that the defenilal
shall enter special bail at the return of theitij
or surrender himself to the sheriff, is bad, tUl
the first part of the condition alone woulJ j|
good. Wilson v. McCullough, 5 0. S, 680,
V. Justification.
The affidavit of justification cannot he sn
before defendant's attorney. Koijle v,
2 0. S. 113.
Bail m.ay justify by the affidavit made ati
time of the acknowledgment, though aneie(|
tion to them be entered, where nothiiiB is sidi
to repel such affidavit. Duggan v. DtTni\
0. S. 75.
Since 4 Will. IV. c. 5, bail excepted to i
vacation must justi^ in vacation, and in*
till the term. McKenzie et al, v, Maadli,^
T. 2 Vict.
1349
It is not a sutHcienI
iro bail, that one ol
cnipniind for liis do
Oaiiiell V, James, 2 P.
See Lanylois v. Bal
tl, p. 366.
VI. Proceedini
1. Staying am
Stayimj Proceedings. ]
) the sheriff liad, in c(
«viii^ the j)roviiicu, an
at he would not retii
Jven a cognovit in liis
ff, the court, upon an a
proceedings upon th
t(n/f/«H, Tay. 32.
I Where a defendant ha
lecial bail upon the p]
It it was uniiecessarj
npromise), proceedings
Jiyed for one month to ]
Wym V, Rathburn, Tay.
[The court will stay proi
)a judgment and exec
ts, ivhere the plaintiff
i to proceed against t.
I keep the bail to ter
en obtaining a judge's c
ed and never acted upc
IS. 314.
iil must not only be ]
fere moving to stay proc
i on the usual terms.
, S. 298.
hen bail rely upon
brtaking they must p
fly for summary inter;
*fe<(oi, 10. L. Chaml
laintiff had R. arrested
I November, 1869, P. a
B to the sheriff. On 25tl
[ an assignment of sht
ight an action on it. f
ind perfected upon 28th J
in;-Held, that the bi
•the proceedings stayed
" V. Ikmibj, 4 P. It.
ttii'S aside Proceedim/s.
I a recognizance roil m
•edings, after comperuif
ition on the bail bond.
.340.
t is no ground for setti
mim on a fi. fa. again
McCarti
linst their
lei Hugi,
. — : "6
3ir principal
fgillv. McCc
*ndant was arrested an
« themselves pat in ,
•eyorthe bail gave not
defendant's attorney,"
I papers in the cause m
pent was obtained, and
[sa-.when it was shel
|ver employed the atf
Pe the whole proceedi*
f'wn.BO.S. 72.
mi
BAIL.
350
It is not a sufficient ltouikI to reject one of
. i,nil tliat one of his creditors agreed to
bail, that one
Ills debt for '2s.
agreed to
in tlu) pound,
See Lawjlois v. Bahi/, 10 Chy. 358; 11 Chy.
VI. Proceedings against Bail.
1, Staying and Setting Asiile.
OflnjimPrticm/iHy*.!— "Where one of the bail
I'tlie sheriff had, in conse([nenee of defendant
' i,i„ the province, and under an apprehension
Zt he would not return to defenil the cause,
Eren a cognovit in his own name to the plain-
■ the court, upon an affidavit of merits, stayed
.' proceedings upon the cognovit. Huberts v.
L/WuH, Tay. 32.
I AVhcre a defendant had neglected to put in
lecialbail upon the plaintiff's representation
Uit it was unnecessary (they being about to
npromise), proceedings on the bail bond were
iiyed for one month to let him put in such bail.
Vlm\. Rothburn, Tay. 202.
I The court will stay proceedings on a bail bond
jer indgment and execution, on payment of
I where the plaintiff has delayed for three
u8 to proceed against the bail ; and they will
i keep the bail to terms accepted by them
len obtaining a judge's order, which was aban-
neilanJ never acted upon. Young w Shore, 2
Is. 314.
oail must not only be put in, but perfected,
fere moving to stay proceedings upon the bail
J on the usual terms. Gould v. JJirminghani,
L S. 298.
inkn bail rely upon performance of their
Bertaking they must plead it ; they cannot
ply for summary interference. Mitchell v.
iiliet al, 1 C. L. Chamb. 284.— Burns.
Uintiff had R. arrested on mesne process on
J November, 1869, P. and H. becoming his
II to the sheriff. On 25th November plaintiff
"; an assignment of sheriff's bail bond, and
jght an action on it. Special bail was put
ind perfected upon 28th November, and notice
B:— Held, that the ])ail were entitled to
»the proceedings stayed on payment of costs,
l V. Kemily, 4 P. R. 177. — Chamb. — J.
on.
Ukg aside Proceedings.] — This court will set
a recognizance roll not warranted by the
ledings, after comperuit ad diem pleaded to
itiononthebail bond. McDonnell v. Jiutter,
.340.
1 is no ground for setting aside or staying
ledings on a ii. fa. against bail, that the ca.
lainst their principal has not been returned
Bed. HugiUv. McCarthy et al.,2 0. S. 495.
llendant was arrested and gave bail, who to
themselves jfut in special bail. The
ley for the bail gave notice, and signed him-
T*defendant'8 attorney," and all the subse-
'l papers in the cause were served on him.
Bent was obtained, and defendant arrested
" sa., when it was shewn that defendant
Jver employed the attorney. The court
ide the whole proceedings. McMartin v.
p»on,60.S. 72.
Where judgment and execution have been
obtaiiie<l against bail by returns of nihil to sci.
fa,s. without tiieir knowledge, the court, although
they cannot set aside the proceedings, will let
them in to defend upon payment of costs. Read
v. llilt^ et «/., 4 Q. B. 175.— P. C— Macaulay.
Where an action was brought on a recogni-
zance of bail taken in a District Court, and on
application to set aside proceedings facts were
shewn upon which the court might have ordered
an exoneretur to be entered on the bail piece, if
the origin.al action hail been brought in this
court : — Held, that the application should have
been made to the court below. Morqan v. Mosier
et al., T. T. 4 & 5 Vict.— P. C. —Macaulay.
Where there was an irregularity both in the
special bail piece and in the notice of bail, and
the plaintifl's took an assignment of the bail
bond and obtained judgment and execution, the
court refused to set aside the proceedings on the
l)ail bond on payment of costs, the defendant in
the original action being insolvent, and the plain-
tiffs liaving lost two assizes. Lyman et al. v.
Binge, H. T. 5 Vict.— P. C— McLean.
See VII. p. 352.
2. Practice.
Where a recognizance is not enrolled until
after nul tiel record pleaded, the plaintiff must
pay the costs of plea, and the defendant be at
liberty to plead de novo. Smith v. Moreton,
5 O. S. 551.
There must be fifteen days between the teste
and return of a ca. sa. to charge bail. Ferric v.
Mingay, M. T. 5 Vict. — P. C. — Jones. But see
BecJty V. Taylor, 2 P. R. 44.— C. L. Chamb.—
Burns.
Bail need not move to set aside a ca. sa. against
their principal until proceedings are instituted
against them. Beattie v. McKay et al., 2 C. L.
Chamb. 56. — Draper.
On an application to set aside a ca. sa, in the
original actioii, or proceedings against bail, the
affidavits are rightly entitled in the action
against the bail. lb.
In an action upon a bail bond given in a Dis-
trict Court, the plaintiff (if the plaintiff in the
original action) should sue in the District Court ;
ana if he sue in the Queen's Bench, the defen-
dant may take advantage of the error in one of
three ways — either by applying to the court to set
aside the proceedings, or by pleading in abate-
ment to the jurisdiction, or by demurring gene-
rally to the declaration ; he cannot have a re-
pleader. Hamilton v. Shears, 5 Q. B. 306.
Semble, that if the sheriff sue, he is not re-
stricted to the District Court of the district in
which the bond was taken, but may sue in the
Court of Qiioen's Bench. Jb.
In order to proceed against the bail, the ca.
sa. must be in the hands of the sheriff four days
(exclusive) before the return day, lb.
3. Pleadings in Actions on Bail Bond,
A plea by bail to an action on their recogni-
zance that they did not become bail, concluding
to the country, is bad on special demurrer ; and
i
,, ; J-.
1
•
1
*'' 1
i n«
i;J ;J'
Mil ill
|l ■■■ -^i" f-'i-;; i ■
351
BAIL.
m
\j
on pleas of nul tiel record to the jndginont and
no CO. sa., a judgment varying in the term from
that stated in the duehiration, and n ca. Ha. in a
form of action dittei'cnt from tliat stated in the
replication, constitnte a fatal v:irianee. JJitriin
V. Orkretal., 5 O. S. 500.
Debt on bail bond. Tlea, that the principal
put in bail to the action according to the condi-
tion. Replication, thd; he did not cause ajn-cial
bail to be put in for him in said action : — lidd,
an issue of nul tiel record, which could not bo
tried by a jury. JJttKohne v. JJaniiltoii, 15 (e.
B. 183.
A plea that after a ca. sa. against their prin-
cipal the plaintiti' gave notice to the shcriU' not
to arrest him, is bad on general demurrer.
Burns V. Donelli) et dh , 5 O. S. 495.
Where in debt on a bail bond, taken in a suit
brought by an executrix, the declaration shewed
the cause of action to have accrued and the
bond to have been given to the plaintill' as exe-
cutrix, and on a plea of non est factum it
appeared that the bond v.aa given to tlie plain-
till' in her individual right : — Held, that slie
could not recover. Haw v. Monlijunuri/ ct a/.,
T. T. 3 & 4 Vict.
Held, declaration bad on special demurrer, in
not averring that the recognizance was filed in
the ofKce of the deputy clerli of the crown in'
which it was taken, as directed by the 40th
section of 2 Geo. IV. c. 1. Gilkspie et al. v.
Grant, 3 Q. B. 400.
Mistake in averment of endorsement of ca.
so. as to amount .• — Held, no ground of special
demurrer. Easton v. Lowjchamp, 3 Q. B. 475.
Held, not necessary to aver, in an action by
the assignees of a bail bond, that the sheriff did
not receive the money after tlie assignment ;
nor that the defendant had notice of the assign-
ment, lb.
Debt on a recognizance of bail. Plea, no ca.
sa. Replication, setting out a ca. sa. directed
to the sheriff of the Newcastle district, aver-
ring that the venue was laid there, and con-
cluding with a prayer to the court to inspect
the record, and giving a day for that purpose.
Rejoinder, traversinjj the venue being laid in
Newcastle, and avernng it to have been laid in
the Victoria district : — Held, on dennirrer, re-
joinder good, liobertaon v. (Juin ct al., 5 Q. B. 7-.
Debt on a recognizance entered into in a Dis-
trict Court. — Plea, no ca. sa. sued out of that
court. — Replication, that the plaintiff did sue
out and prosecute a ca. sa. , setting it out, and
praying that a day might be given to bring in the
record. The record certified to this court, by
the judge of the District Court, agreed with the
replication : — Held, therefore, 1. That under the
issue no objection could be taken to the ca. sa. ,
as varying from the judgment. 2. No objection
that it did not appear upon the record that the
oa, sa. had lain four days in the sheriff's hands
before the return day, this being matter of prac-
tice of another court. Cochrane v. Ei/re et al. ,
6 Q. B. 594.
Variance between a recognizance of bail en-
tered into in a foreign country as stated in the
declaration and proved. Short v. Kingsmill et al. ,
7 Q. B. 350.
Ill debt on a recognizance, the declaration vi"
bi; bad if it appear that tlio plaintiff is suiin,,"!
ail outer dirttritt, upon a record of this cJcnl
remaining in Toronto. Manning v. Proctor f]„\
7 (l 15. '.'2. "
The declaration must slicw the rccoguj/anjjt^
have been lilud where it was taken, //y,
AVhen l)ail ndy upon performance of their m
del-taking, they must plead it;thLVaiMi
apjily for .summary interference. Mi/rhfji •[
JVubIc ct al., 1 C. L. Chamb. 284.— Biirna.
l)el)t on a recognizance of bail :— Held
special di'uiurrer to the pleas, that it w^ij is ^
" '' the <lcclaration that the rem. I
cieiitly averred in
nizance was entered into in a suit tlmi i,,,,,/.,;
between the plaintiff and the princiml • J
that tlic defendants were therefore estoMidl
fnmi pleading that at the time of inakiiu'tk.!
recognizance there was no such acticjii. I'Jtj,,
render and discharge as an insolvent dehtw -I
Held, bad on special deniuiTer. Mildidly \m
et al., 9Q. B. 555. " ''
Where in an action on a recngiiizance tltl
declaration shewed that others Ijcsides defenJatl
were jointly bound, the objection was heUfaull
without a plea in abatement. Mills v, McM, I
10 Q. B. 145. '
The declaration alleged that the defendant fcil
a recognizance became bail for C. tn the iiniiiil
of, &c. Plea, nul tiel record. On the rccoaJ
zanco roll, it appeared that C. had alsojniiif^l
with defendants, which was objected to as il
variance : — Held, that the objection, if ajf I
should have been taken by plea in alntemer I
McFarlane v. Allen, G C. P. 143.
The principal debtor need not he joined iiJ
recognizance under 10 & 11 Viot. o. 15, norniiil
the sum for which the debtor was armid \»\
mentioned. The averment of eandnicrtiniliil
declaration was held sufficient. .McFurlmil
Allenetal.,-iG.F. 438.
On a joint and several recognizance, onemajfcl
sued alone. A plea that defendant was joiiM
bound, moans that his undertaking was jointoiltl
not several. Jioss et al. v, Joneit, 15 Q. B. ^1
Delay in issuing a ca. sa. , to fix the l)ail, .'el
not be pleaded in bar to an action against tkl
on the recognizance. Carroll v. Bcirpimd^t
16 Q. B. 520.
VII. DlSC'IIAUGE OF.
1. B>! Surrender of Principal,
Where a defendant presented himself to G
sheriff" in discharge of his bail befire the la
of the ca. sa., which had been lodged inthcoi
merely to fix the bail, and the plaintiff neverti
less proceeded against them, the court set tlie|s
ceedings aside. Ward v. Stocking, lay. 21d
The court will not allow an exoncretur, wii
bail have surrendered theij princiiial, \ritli«l|
certificate from the sheriff to whom hewai"
dered. Linley v. Checseman, Dra. 53.
Bail are fixed after eight days in full teniMl
the return of process against them, and tlie*
will not relieve by allowing a render. A.lf
son v. Mosiej; 2 O. S. 491.
Bail have eight days in full term aitffi
return of process against themselves tosu
hurehes in a bond tak
l«. A may sun-ender i
Pwer given by sec. 24.
i vUOt
rt
393
BAIL.
354
tioucrs
A.ir principal, mi.l tbo plaintiff is bounrt to «tay
i« ceilings on receiving notice of tlie rcmlcr,
feoStl>e costs bonotpaul. /n.. v. JMn,-
t,M:T.2Vict.
Riil surrendered their principal and gave due
,Uce within eight days after tlie return of pro-
on rec(igni«"iL'c ; the plamtifts nevertheless
v.ee(led to judgment. The court stayed pro-
Jinw witliout exacting costs up to the notice.
When hail surrender within the time allowed
ftfrretuniof process against themselves, they
je not liaV>le to costs. Irir/.v v. McUunald, T.
f 2 & 3 Vict.
A debtor on the limits conies to the sheriff 's
Ece and tells the clerk there that he wishes to
render hiinsulf ; the clerk tells him to remain
Ihe finds the sheriff or his deputy, and leaves
ihe debtor in the office, but before he finds the
leriff and returns, the debtor absconds :— Held,
at this being a mere pretended and frauilulent
Eiier it could not fix the sheriff and s«i)port a
Jen of render by the bail. Kennedy ct al v.
|^,,>,4Q. B. 189.
The bail before action took the debtor to an
ice some distance from the court house, where
deputy sheriff transacted business with prac-
lucrs and tli^re tendered Lini in their dis-
me. The deputy referred tlicni to the sherifr's
■e, where they went, but found only a clerk,
had no authority in such matters. They then
lered him to the gaoler's wife at the gaol,
L'aoler being absent, but she refused to re-
; him. Afterwards the plaintiff sued on the
I'liizauce. Defendants applied without suc-
ni chambers to stay proceedings, and at the
of three months renilered the principal. A
lict having been found for the plaintiffs :—
that the court could not interfere. Read
\:ScocUletal., 16 Q. B. 453.
1 interim order of protection under the In-
jut Debtors' Act does not prevent bail from
rendering their principal. Jioss et al. v. Brookes
3L. J. 110.— C. L. Chamb. — llobinson.
here there is any doubt as to the validity of
1 surrendo.r, a judge in chambers will not
an exoneretur, but will leave the bail to
lit. Blackman v. O'Gorman, 5 L. J. ICl.
. Chamb.— Robinson.
I case of a surrender after judgment, plain-
must proceed to execution within two terms
r the surrender and notice, .and a render in
itionis to be deemed .-vs of the preceding term,
) make that term count as one. Torrance
taklm, 10 L. J. 332.— C. L. Chamb.— J.
on,
here judgment was obtained on 14th Janu-
liefenJant being on bail, and he was on 2l8t
following, in the vacation preceding Trinity
, surrendered by his bail, of which notice
jiven to plaintiff, and the whole of Trinity
lallowf-d to elapse without any thing being
Itowa'ds execution, defendant was super-
IL
i sureties in a bond taken under C. S. U. C.
8, 29, may surrender their principal under
bver given by sec. 24. Kingan v. Hall, 23
23
Under C L. P. Act, 8. 37, a judge in chain<
bers cannot order an exoneretur unless he be "a
judge of the court in which the action is pend-
ing.^' lioxzel v. Stronij, 2 L. J. N. S. 48.— C.
L. ('hamb. — l)raper.
A surrender to the sheriff elsewhere than at
the ga(d, if within his county, is sufficient for
the purposes of that section. S. V. — Richards.
See LeMemtrier v. Smith, 2 0. S. 479, p. 358.
2. Under Bankruptcy or fntfolvency Acta,
An exoneretur may be entereil on the bail
piece (for the limits), where the defendant has
been ilischiirged by order of the insolvent court,
and the debt in the action included in the
schedule. McCarthy w. Leonard, 1 C.L Chamb.
1,S.5. — Kobinscm.
Leave to enter an exoneretur upon a final
order of discharge in bankruptcy of a debtor on
the limits was refused, and tL bail were left to
plead it. Wilson v. Downing, J L. J. 49. — 0. L,
Chamb. —Richards.
The fact of a defendant on the limits having
obtained his discharge from the insolvent court,
is no ground for entering an exoneretur. Nord'
heimer et al. v. Grover, 2 P, R. 167. — Chamb.—
Robinson.
An interim order of protection under the In-
solvent Debtors' Act does not prevent bail from
surrendering their principal ; nor does the final
cei-titicate discharge them from liability if the
bail be previously fixed. Kosa et al. v. Brookt
et al., 3 L. J. 110.— C. L. Chamb.— Eobimon.
The defendant R. having been arrested gave
bail. A verdict was rendered against him in
the suit, .and a ca. sa. issued wa^ returned non
est inventus. A writ of summons was then
issued on the recognizance against J. , his surety,
but prior to the service upon J. , the defendant
B. applied under 19 Vict. c. 93, as an insolvent
debtor, and on the 16th Februarj , obtained the
interim order to protect him from arrest ; on the
17th J. was served. It was contended that the
ca. sa. luaving Ijeen received and the retunfmaAe
after the interim order, the b<ail were not fixed
by the return of non est inventus : — Held, that
the bail were liable, lions et al. v. Brooks et al.,
7 0. P. 366.
3. By Ar)-angement icith Principal.
Where a verdict was tivken for plaintiff subject
to a reference, and the time for making the award
was afterwards enlarged beyond the time when
the plaintiff would regularly have been entitled
to judgment ;— Held, that the bail were not
therefore entitled to an exoneretur. Whiting v.
Mroll, E. T. 3 Vict.
The court refused to allow an exoneretur on
the ground of laches, where an agreement, out
of which the laches grew, had been entered into
with the assent of the bail, and was such that a
length of time must necessarily have elapsed
before the princip.al could complete it, Spencer
v. Giford, E. T. 3 Vict.
The accept<ance of a cognovit with stay of exe-
cution until a period not later than the plaintiff
could in the ordinary course have obtained exe-
,1 , M
!■ •Ill
I si!!
i
1 !
i ■
■ i ^
' ! ■. : i
11 . (■■
lii'l
m
BAIL.
M
In
cution, will not digcharge bail. (Jarter v. Hulli-
van, 4 C. 1'. 'ii»8.
Where the tiiiil of nil nctiini f>f rciilcviii liiid
been imatiKHicil at the iiistniiuoof tile (lefi'iulant,
but witlumt tlio direct aHHeiit or eimeurrt!iiee of
the liail : — Held, tliat tliu liaii were dihclmrged.
Cann{lf'v. Bo/jni, C. 1'. 474.
4. fMllir (^IK('.^.
Where n defendant liad lieeii arrested by one
of two idaintitlM for t'lS, and was aftcrwanlK
arretted in the name of iiotli for CIS lOs., the
former amount lieing included in tlie seeoiid, tlio
court ordered tlie l)ail l)ond to lie caneelled.
liamom it al. v. JJuiiaijIiuo, Tay. 41(3.
Under 7 Vict. <:. 31, the recognizance was not
forfeited by tlie non-imyment of tiie condemna-
tion money on tlie recovery of judgment, unleHH
the altern.ative condition was not coniplied with.
The legislature having made no iirovisioii in the
act repealing 7 Vict. c. 31, for continuing the
proceedings coinmenced under it, no proceeding
can now be taiien against bail under .such recog-
nizance. Ihin/i/ V. J/(ill it ul, 2 g. B. t;7(j.
Since the repeal of that act : — Held, that the
recognizances taken under it are not binding,
except where the debtor has been iiotitied, and
has made default while the act was still in force.
Macaulay, J., diss. Manhmuldw WteksiiaL,
3 Q. B. 441.
Where a sheriflF is requested to return non est
inventus, he need not seek the debtor, but if he
do, and arrest him, the bail are discharged ; and
if the debtor escape, no matter from what cause,
their liability does not revive. Itild v. UiltH ft
al, 4 Q. B. 17».— P. C— Macaulay.
Where the plaintiff, after service of notice of
application, allowed an exonereturto be entered
on the bail-piece without opposition, and then,
six years afterwards, appliecl to rescind the order
for the exoneretur for irregularity, the applica-
tion was refused, on the ground that the plain-
tiff's acquiescence in the order for six years
must be considered as waiving the irregularity
and discharging the bail. Ruheris ct al. v. Fox
etal., 1 0. L. (Jhanib. 14G. — McLean.
The defendant in the original action having
giver bail to the sheriff, the plaintiff went on
and obtained judgment : — Held, that he had
waived bail above, and could not afterwards
take an assignment of the bail bond and proceed
against the bail. Dttaolme v. llamiltun, 15 Q.
B. 574.
Where plaintiff .agreed to discharge the bail
on certain terms, and after three years, the con-
ditions not having been performed, jiroceeded
against the bail : — Held, that they were not
entitled to an exoneretur for laches. McQueen
V. Pratt, 2 P. E. 19G.— P. C— Jones.
The fact that a plaintiff has not charged in
execution within two terms after judgment a
debtor who has given bail to the action, is no
ground for an exoneretur. Torrance v. Hokkn,
10 L. J. 298.— C. L. Chamb.— Draper.
VII.T. Bail to thk Limits.
1. Who may give.
A prisoner in custody for contempt may have the
benefit of the limits. Rex v. Kidd, H. T. 6 Will. IV.
'"y»/'ii'',il
A bond conditioned that a debtor sliall com,
himmlf to the limits of the gaol is v,,,,! ^^"'
'S,\ Hen. \'I. c. !(, if at tht^ time of its t.x,,!,^ ,
tlio delitor wa.s not in custody nor on tLelin i'l
Camiilirll \. Li won, 2 O. S. -101. *'
Debtors in custody on mesne, as well ai 1 1
final process, may liuve the beiielit of th,. In, ,*f
Monhiiniiini v. //mi/inid, \\ '['. 2 \iit • r/
M,\\ul>, 1 i'. |{. mo.-- I'. C- Draper.' '
A bond to the limits may be taken f,,i5j,, i
tachnient for non-payment of money, ainl )|,;„ , f
assigned. Mvntijmni rij v. J/i,ir/iiiii/, ]■;. '!', o'\' ,'
As to when the court would direct tli(.(]jJ
of the crown to give a certitieate uikUm' in JiJ
Vict, c, 15, to tlio slieriff to ndniit to tlii/lmi'
A/ills V. Juint'n, 5 ii. \\. 21t).
Semble, that before the return of nnatta- 1
mciit for coiiteiiipt the .slierill' caiiiint \,u\j\
take bail for appearance without the (iivler
judge; but after tlie return, if the ]];u■tvi^
upon an attacliiiient merely to coinjn,! tlii mi
nient of money, the slierill', as (jf cdiiisi, iai|
take bail to the limits. Lane v. Kk
y. B. 579.
Where a sheriff returns cepi corpus to ,i ixi|
of ca, sa., and the plaintiff rules the slitn|f;J
bring in the liody, and the sheriff not onim]ri||
with the terms of the rule, the plaintilt iijl
obtains a rule for an attachment agaii.st til
sheriff for not bringing in the bmly oi thei.1
fendant at the return, of the rule to that (S
— Held, that it is a good answ er to such nilefiL
an attachment, to shew by atlidavit tliatij
defendant was arrested under a ca. sii. aiiililit]!
in close custody, and was afterwards (iistlmiiil
from close custody and admitted to tlit
by virtue o a certilicate from the clcriioiil(|
crown and pleas annexed to the atiidavit, iii|
that he had not since been coniiiiittcil to tlil
custody by any process whatever. H7,in,I
Pctck et at:, 7 Q. B. 1.— P. C— Draper.
It is not necessary xmder C. 8. U. C. ciJ
that a debtor be actually conveyed to gaol WkI
bail can legally be taken by the slienti'. ,y|
et al. V. Fouler, 11 C. P. Kil.
A party arrested upon an attachment ouil
this court is entitled to the gaol limits miilerKlf
11 Vict. c. 15. JJai'is v. Canpar, ICliy.SJl
Qurere, whether this act would reiwl tU
Geo. IV. c. 3. 76.
2. Bond.
(a) Form of.
Sec. 29 of C. S. U. C. c. 24, (taken fmsl
Vict. c. 33) does not repeal sec. Ih, (taken iri
19 Vict. c. 43, and 20 Vict. c. .'»7), ami ite!
are not so inconsistent as to be iiaaiwUe^
standing together, in some respects at 1
The 25th governs where the boinl was 1
before the 4th of May, 1859, the L'dtliiitel
and where the two are at variance tte liit^
must prevail. Sec. 29 therefore does not «
tain all that is re(iuired in the condition of 1»
since that date, but the re(juiruuients(ili«!
where not inconsistent, must l)o \\wx\"V'
with it. Kingun et al. v. Hall, 23 Q. B. oDi ,
The sheriff cannot admit a debtor totbli:
except by statute, and where he dots s" ij
1857
Ibdii I not in acrtordai
|m I'l'a vohnit.iry es
Where, thcriiforo,
l"tii lie eXHliiiiKid viv
loniitteil ; -Held, tllil
(iliilllnii : -Held, ,'i
«vin^' recjiiiivd and (
iniwl WM IK it CStc
llcritr. //).
The introduction in
riven uinee the 4tli '.
at the delitor .sliail
^hii'h tliiit (:hum! H.'iy;
Wil'iiii :"— Held, fatal
The omi.'isidii of the i
<!)•" in such condition
(h) A/f,
I Wiere the notice gi
lit 8)ieci.al hail liad lie:
jBiice produced was
lliniii^' on the limits, t
jce was refuscil ;vit)i c-
|P.l!. iJO.-P. C.-D,
lUnderlOctll Vict, c,
1 wa.1 not necessary t(
Ws to the liinit.s, tl
bncd. Km- v, Jfiid,
|Heiil, that sec. 2,') of t
liriiiLr tlie condition
lin thirty days, a])plii
to superior courts, y
15. P. 87.
iDefendant being ^rres
"iff, under 10 Vict. c. 11
b> a recognizance was e
S limits, ami a certid
m hy the deputy clerk,
need on the recognizanc
n entered into before a
[tike it. The plaintiff tli
llet aside the certificate
Wr was rescinded by th
Icfmcurring ujion the gi
'<"'';' prevent an aiiiien
•bad Mere liable. Mnrj
P 76. ■'
teing arrested on a ca
8 liy bond to the sht
ties, and afterwards ei
« under IG Vict. c. I'}
»bw, which was improi
Mtive in form, and execi
^•uthonzed. Tiio plain
Ini .ngainst the sureties
t'le sureties in the bail
nt' first obtained an assi.
tliat they were release
P%'ot the certificate 01
f '■ bo, although the
Lto';1 and ought ,rot to
^"""i; y. Src}nnHer,
''^'■•■•Mlanev. Allan, et
, 'If of the bond not n
he tiurty days wo
Wonthelunitg. ho
^^ym.5,6,
857
BAIL.
308
|. 1 ^„t in acconl.iiico with tho not, ho is liuldn
WliiTu tlifrefiiro, in thu uiiiiilitiou tho wonh,
|..t„l.ofWi"i"^"''''''^ V"''''"'
thcrwiso," woru
lioinl aHonlcil no jus
..•ituin ; il''l''. '''^"- '■''■'•^ *'."' *"''-''l'f"i' ''V
' vil ami tal<i'iiiiii asMij^iiincnt nt' sucli
viiw rt'ijuiri- • ■ .
\«iw\ wiw iiiit c»tiii)in;il troiii lnokiiig to tli
leriff. /''■
The iiitroiliiutioii in tlio coniiitioii
till! 4tii May, LS.")!), of a ])iovinioii
)nilitioii of 11 1)oniI
pvtn mix-;';
t till' ili'titor sliiill I'fiiiain within tliu liniitu,
i b that flaiiao HayM tln^ condition ''.ilml/ mil
JuiH :"-HeUl, fivtttl. Jh.
The imiisBiim i)f tlicword "close" before" cus-
iii siicli wiulitioii :— HeKl, immaterial, fh.
dy
(1)) Alliiiniiicc of.
I W'lierc the notice given to tlie plaintiflF was
1 Ijiiil liad l)een pnt in, and tiie recog-
uliiced was only for defendant re-
jviice priHii
liniut; im the limits, tho aiiplicatiou lor
lUow-
Clc'jij V. MfXab,
jce was refused with coats.
Ip, K. 150.-1'. C.-l)nii.er.
ICmler 10& 11 Vict. c. 1,'), and 10 Vict. e. 175,
i was not necessary to an action on rocogni-
to the limits, that the l)ul should Ijo
0WC.1. A'c/vv. lyul, 18 y. H. 254.
jHtl'l, that sec. 2."> of the C. L. P. Act, 18.57,
nuiring the ociudition of allowance of bond
Bhiii thirty days, ai)i)lies to the county as well
[to superior courts. Avnuld v. Mnrijatroijd,
", r. 8".
iDefenclant being arrested gave bail to the
ritf, under IG Vict. c. 175, a. 7 ; within thirty
\p a recognizance was entered into as bail to
I limits, and a certiticate of its allowance
ren by the deputy clerk. An action was com-
nceil on the recognizance but failed, it having
1 entered into before a person not authorized
ke it. The plaintiff then got a judge's order
[let aside the certiticate of allowance. This
her was rescinded by this court. — Draper, C.
jcdiicurring upon the ground that if it stood
Iroiilil prevent an appeal to decide whether
t lail were liable. MacJ'arlane v. Macwhirtci;
,1'. 76.
, being arrested on a ca. aa. gave bail to the
liy bond to tho shcrilf, with B. & 0. as
ities, and afterwards entered into a recogni-
under IG Vict. c. 175, with B. & I), as
[ibcs, which was improperly allowed, being
ictive in form, and execute(l before a person
j rithorized. Tlie plaintiff having failed in
Init against the sureties in the recognizance,
t tile sureties in the bail bond to the sheriff,
Ig first obtained an assignment from him : — •
'j tliat they were released from liability by
ling of the certificate of allowance under 1(5
c, 175, although the recognizance itself
loid and ought not to have been allowed.
|r'an« v. McWhirter, C. P. 334. See,
\Ia(farlamv. Allan, et al., 6 C. P. 49G.
(fact of the bond not having been allowed
i the thirty days would not make the
[liable for an escape where the debtor
ped on the limits. Dougall v. IJ.oodk, 19
SeeVIII. 5, 6, p. 361.
(c) Aitlgnmcnt of.
To action by the assignee of the sheriff under
n> \'ii;t. c. 175, averring a <lcp.'irtnrc, it is a good
deft^ncc that tiie diditor left the limits by tho
leave and liienMi^ of the j)laintilf. Such a plea
nci'(l not allcgi^ tiiat the departure allowi^d is tho
deii'irturi! ciiinplained of : Semiile, per iiurng,
.1., that tiiere cm lie no assignment of such bond
until after f<u'f<'iturc. H'/iilHir v. /finiiln, 18 Q.
n. -Mrt. See S. I'. [[)(.). K 170, 172; Jfivki v.
(lu,lfre,i, 1,'-) ('. I'. 2(;2, p. ;i5!t.
Till! deputy shcrilf is, under 4 Anne, c. Ifi, a.
20, a croilible witness to the execution by the
shcrilf of an assignment of a bond to the limits.
Whittin- V. llaiuU, 1!) Q. B. 172.
In an action by tho assignees of tho sheriff
.against the sureties of one S. on a bond to tho
limits under l(i Vict. c. 175: — ^Held, that tho
bond continued in force after the (sxpiration of
the thirty days, and might be assigned and sued
upon for a breach committed by departure after
that period, lirown li al. v. Pitxtonat ai, 19
Q. h. 42(i.
The plaintiff ilodared, as assignee of G., the
sheritf of Middlesex, on a bond to the limits
given to II., the late sheritf, alleging that after
the making of tho bond H. died, and that the
defendant on several ncc.asiims departed from
the limits ; but it was not stated whether tho
<lej>arture w.as before or' after the death of H.,
r tho appointment of (t., or whether the bond
had been allowed ; — Hold, that the declaration
was bad, aa for all that appeared the departure
might have been at such a time as to render the
late sheriff liable, and if so his successor could
not assign the bond, Osborne v. Cornish et al,
20 Q. B. 47.
See DoiKjall v. Moodk, 19 Q. B. 568, p. 363.
(d) Breach of.
In an action by the assignee of tho sheriff
of a bond to the limits, a voluntary return, and
a surrender before action and before assign-
ment, are not good pleas in bar. Evana v. Shaw,
Dr.a. 14.
It is no defence by the sureties, that the debtor
before the assi£;nnieiit left the limits for an hour
without their knowledge or consent, and after-
wards and before action returned to the limits,
and still continued thereon. McMahon v.
Masters. GO. S. 579.
To debt on a bond by the sheriff's assignee, it
is a good plea, that after breach and before
assignment to the plaintiff, the sheriff delivered
up the bond to the debtor to be cancelled ; but
a surrender after breach is not if the bond wore
not cancelled. Le Mesurier v. Smith, 2 0. S. 479.
Semble, that a bond to the limits is not broken
where the debtor has not willingly withdrawn,
but has been misled aa to their extent. Lewis v.
Grant, 1 Q. B. 290.
Whore a defendant has left the limits, it is no
defence that he was informed and believed that
the place he went to was within his limits, un-
less such was the general impression, or the
boundary was disputed. Hedden v. Oregory et
al, lOQ. B. 334,
ii
ii
i
BAIL
m
111
Debt on Iwml to the limitii. Ploi, that ilo-
{(tlidant wiix tikcn fmiii tlic liiiiit« liytln' slicrill',
in wh((!ie custndv Im wiw, iindi'r a writ of haliciis
CorjMlM ail ti'.it, IMillt'd
county court and
a good (U'fi'iii'f, for tliu writ wum valiil ;
not, tho dr[)arturu was iiivoliiiitary, and
fore not a breach, {{us.i v. liiUI, IH I/. H.
*w\\ on tlir I'ljmty Kidi
diri'ctt'd toHaid Hlirritf ;
nl till
ff.'ld,
and if
th< II-
iVM.
To an action on the Ixind, alli'),'in>{a di'parturo,
ilefemlantH jjU'adod tliat tho ilubtor, by virtue
of a warrant of the Hpeaker of the hoiine of
Maenibly, then in ne!<Hion, wan reiinirecl to attend
as a witneRw l)eforo said Iiouhc, and tliat to obey
the warrant lie left the limits and remained
away ten days : Held, no deftmce, an it waH not
shown that the speaker knew the debtor to bi!
on the limits, or what occasion then^ was for
Tucpiirin^ his attendance, or that any process
had itiMued by which ht^ was placed in custody
of any otlicer while atwent. /irovn i:t til. v.
I'axlonclul., VJq. H. '-'38.
Tho plaintiff's attorney cainiot authorize a
departure from the limits when conmiitted on a
ca. sa. : — Semble, that if dt'feiidant departs by
plaintitf' 8 permission, and returns, tho bond is
not thereby gone, iVIiitUer v. /Idiuli, 19 Q.
B. 170.
The debtor applied to the plaintifT's attorney
for purniission to fft to Toronto and obtain tho
money, and the attorney told him he would take
no advantage if he wished to j,'o for that pur-
pose. Ho thereupon went, returned without
effecting his object, and after romaininf,' some
time left the province. Tho plaintitl' then sued
upon the bond : — Held, that there was no evi-
dence to sustain a jdea that tho debtor dtiparted
with the plaintiff's leave, and that it was unne-
cessary to now assign the second departure.
Whiltifrv. Hands, 19 Q. B. 172.
The declaration upon a bond to the sheriff con-
ditioned that (J., tho debtor, sliould observe and
obey all notico.s, orders, and rules of court touch-
ing and concerning him or his answering interro-
gatories, &c. , assigned as a breach that the said
G. being released from close custody, the plaintitf
duly filed certain written interrogatories for tho
purpose, &c., anil cau^'od a copy to be served on
said G. , requiring hnn to tilo his answers under
oath thereto, wU/uh ten daijs after service thereof
* • • and thereuj)on it became the duty of
■aid G. to hie his said answers on oath within
the said time ; yet said G. did not tile his said
answers within the said time, whereby the bond
became forfeited, and the sheritf assigned said
bond to tho plaintiff :— Hold, on demurrer, decla-
ration batl ; 1. Because the only breach shewn
was the omission to comply with tho notice
requiring the defendant to answer the interroga-
tories within ten dai/.t, which was not authorized
by the statute ; and, 2. That inasmuch as no
sufficient breach was shewn, tlie sheriff could
not assign the bond, so aa to enable the assignee
to sue in his own name. Hickn v. Godfrey, 15
C. P. 262.
Semble, that the failure of the debtor to an-
Bwer interrogatories or to attend to be examined,
upon notice given by the plaintiff" of his own
mere motion, would not forfeit the bond ; but
that there must be a judge's order or rule of
court requiring the debtor so to answer or at-
tend, lb.
;j. Srjif>.rntii)n o/ Counticn.
The limits of the ^,'aid of thi^ niiitiil nintiti^i
of ^'ork, Ontario, aiiii I'ccl, mean tli( iiiintti,,!
thi! liiMii iieinn, and « Ion Ontario w.n.iciyritwr
a debtor on tiie limits '(Jiitinuing in lli.itn.iiutj'l
ids bail wore helil liable, /{nn.i v. /''f/uiv// ji'l
I', 29. ' ■'
rnder IS Vict. c. 09, n. «, dcfciicUnti «
actions on l)ail bonds, where the lircich la
arisen liy tlie se|)aration of counties l)ytlii ip^j
liture, are entitled to have all proccciliiiif:(,tjyj
upon payment of costs. Rom v. Fori mil, {A
:. f. I'. 101.
A rule to tax costs was taken out nn \\v%l
.Tune, !,S,"m, ami served on tlie '.'HHi I'lLnunf
IH.")!), under the provisions of IS \i|.t. , ijl
wliicli providi's for relief of bail \\\\t\ Imv 1»,,|
sued by rcison of the debtor iiaviny tMviUil
from one county to anotlu'r of a iMiimi m' i',™!
ties, (U' continued to reside in one iiiiintviftol
the dissolution, by enacting that the iinntnlnil
shall be discontinued on payment of cnHts. jjl
plaintitf not liaving produceil his bill, tlHilif.tir
ant, on the2Sth Keliruary, IS.")!!, taxcil ,i nnmrjji
bill. On the 17th of March, IS.");, tliu \\:k',-A
made up and delivered his liill, anil ili iiiaii!|.,|
payment, which was refused. In K.istt r twil
18.">7, relief was sought by jilaintilf liy:i|F|ilicat:.|l
to sot aside tho taxation and all siilhfiiiit|l
proceedings, which was enlarifed liy luusiinil
tho parties till Kaster term, IH.'kS; HiH, ligl
the plaintiff was entitled to succeeil, untinil
standing tho delay. Mardoneli v. FnntnAl jtl
P. 54.
4. C'oinmitincnt to Clone C.'iiMdihj.
Tho demand on a Mobtor on the limitiiiil
statement of his etfect.s, if in writiiij,', muiilil
signed by tho plaintiff' or his attuniuy, anill
rule nisi for his commitment i)er3onally leir^l
Mvi<jknn v. Reynolds, 4 0. S. 19.
^Vhe^c a' defendant on tho limits 'offtKii*
assign his whole property for all his ircilitaj
but refused to give up any part tu the ilaiiif
alone, he was committed to clusu ciistwly Hid
4 Will. IV. c. 10. lirunean v. Jwji-i; (i ili^
An order for such committal slinulil lie J
ted to the sheriff, and follow tlu' furm int
statute. Ifamilfon v. Andernoii, 2 Q. B, -Ijil
A judge, wlirii applied to in vacatimi iinlal
Will. IV. c. 10, s. 4, for the conimitraeiit i( j
debtor on tho limits, disposes of the wise i
out the power of appeal, W declining t'V
fero. Sham v. Nickcrson — Oillexpie v. Xich
7 Q. B. 541.
A defendant on 'tlie limits re-oomniitteillj
unsatisfactory answers under 4 Will. IV. c.l
Kirbyy. Mitchell, 1 C. L. Clianib. 1,37.- "
son; Leavens V. Odrom, Il>. 2G1.— Maoanlij.]
A prisoner on bail to the limits, liaviujli
rendered to tho sht^iff, made his escaiiofflil.1'
oificor in whose custody ho was placed wasot'
wise engaged :— Held, that the sheriff waiji
tied in re-taking and committing him todai^
tody ; and that when the defciiilant cndeaV
to shew he was improperly held, lieiimrtiv'
Eositively there was no process, and uotl'inij
e inferentially inferred. A mold v. Adif
0. P. 467 ; SccUclkerd v. Andrews, lb, fA
,1. /.'/■
Where jiiiViiieiit
tfUi'i jiiiiitly li ihle,
^ ln'Mflit of one of
i|ritli"llt tlli^ co-itH, tl
ir |i:lVMItilt of th(
iir party the rout
ifusfii liy a jury on
jtimiiiiia limit lioml j
)hi' rwliu'l'd to the c
nal ai'tioii. fi'noil
II. 172.
I Rill to tho limits In
('. L V. Act, I.S.-
dre till.' Iionil allowed
, L I'. .\ot, IH,-.7, and
Kilt iif thu bond and
bplivd to Ht.'iy jproi'eci
liiinil nllnweil and
lllili was refused, but
^tbi' full ciinrt /ifter v
, Aiii'iiii' 1 1 III., 4 L. .1
bbiiisoii.
ISti' Mi'Kiuj V. Ilmho)
J ft HiijhtH, Dittien, and
|i shoriff mav sue bai
Upc iif a ilelitor bcfo
'1 the inoiiey for wh
iciitiiiii. Hiitfnn v. IT
R^here cmoof the bail t
idolitiir's escape, paid
1 crtsts for which he wa
|thesboritf's own fees,
less sueil tho other obi
liecdver tho costs in an
lin tlio original actioi
klheriff.— Held, that a
inff of the iiioiioy pai
Jl he ooald not recove
loOL'ht to have paid ovi
Bueil the action nor a
\ett V. Lake, 5 Q. B. 4,
le sheritr cannot of }
' a prisoner cliarged
fciistixly, the henetit
lor who is admitteil to
hd to tho sheritr uiid
to enter into and
Why 10 A; 11 Vict.
I such lx)ii(l. If he
Ire-commit him to clo;
kbie as for an escajie.
|8uch recognizance, &i
leiitf within a month,
■ ed :-SembIe, tho she;
nil Viot. if the suretie
f.RMan, 1.3Q. 15.220
it sheriff cannot admit .
: hy statute, and wlie
iiiDt ill accordance witl
lavolimtiry escane
p. 503.
kre, therefore, in the
» examined vivit voce
-Held, that the boi
' ■-Held, also, that t
/
Iqnired and taken an at
I was not estopped fn
• lb, ■
BAIL.
363
ll'-li'fo/ liltU.
\Vh«i> iiiaL'iii.Mt \* rciM.viTf.l nKiHiut two
, , ic.intlv li'l'l''. '""' '^^ I'"' i'i«t'""''' '•>'"' ''"■
' I, lie ol' tluiii, wild |'ii>H tho (Uil)t
(i4», tlu' iiliiiiititr |irini'c(ls ti> cii-
iHivmt'iit "f '•'" wlii.lo iiiiKmiit from tint
ri'irtv tlin I'l'iirt will i.nl.T tlio il iniiiKiM
l. . ' :.._ ill. I llflMLl'll ILMMilflll'li. ill Jtll
. |«lielit
^tliollt tll<:
!i!iioii:viimitl"""' K'^'^'" ''.V ^'''i'' "'•"''' .l''"f.V
,Vr«liK''"ltotho ...HtH ami cImrKos m tlu,
AHn.il !i«tiiin. (I'lOikrhnin v. Chalmn-x it nl.,
B. IT'.'.
[ R,il to tho liMlitH hl.l 1.>'H. KIVL'M
L r. Act, IS.-.C.. Tilt; li.iil
unili^r Hoo,
(imittt'il to
,,, tlir l-oud iillnW.Ml as r.M|nir.'a l)V sec. -Jo of
I' \et, lH.'i7, iiiiil iilaiiitills took an assigii-
intnf the \ww\ aiulHUuil iiimii it. I In
r ,1 to Ht:vy i.ioi'oi'iliiiKH "l>i>ii their j^fttmg
l,„i„l allow.'cl aii.l on iiayinciit of coxts,
Ihiih was nfiiHfil, liut Icavi! waH_j,'ivoii to a])i>ly
kthi' full I'oiirt after vonlict.
,i,„„„,,N//., 4 L .r. l.'iS.-
joliiisou.
ISt-f .VcA'.iy V. //»'/.io«, 2 P.
Tntil the lioiiil liaH lieeii nllowoil thu ereilitor
may either take an aNHi^'iinient of it or Imlil tho
Hlieritf res|ioiiHilile. The Ilielu lakiliK thi' lionil,
therefnie, witlmiit ullowaliee, is n<> defeni'e for
the shi'ilH'; he nnist shew that the iluhtor hon
fllllilleil its eoiiilitioll. III.
Sco VIII, -1 (h), p. :«.'^7 ; VI 1 1. 7 (c), p. 3«3.
7, AftUm OH Hiiiiil tit tfii' f.iwitn.
(a) I'liiiiliiiiju.
A lilank hiviiiL; lieen left in the! homl, which
wa« afterwanls lilled ii)! with the eonseiit of tho
ilelitor, iilthon^jh not in his jiresenci', wan held
no variaiieu on non
Mi'i-ritt, Dra. '281.
Hiirhir ft III. V.
-C. L. Chaml).
R.
\\ 3(i3.
lA sheritV m«' sue hail to thu limits for tho
(if a lio'htcir heforu he has heon sued or
"the inniuiy for which tho dohtor wa in
icutidii. Kii'tiin V. Wilioii, iM. T. 'A Viet.
AVre one of tho h.iil to tho limits, hearing of
J ili'htor's e8i"il>o, I'^ii'l t" *''*' shorilF tho deht
J cnsta for which ho was imprisonod, cxolusivo
[the sheriff's own fees, and tho shoritT ii' > ;r-
UtM siieil the other ohligor in tho liuu„ i , ud
Ireciivcr the costs in an action which tho plaiii-
1 in the oriKinal action hr.' ' ''(mght against
(jhcriff :— Held, that after tu^ receipt hy the
riff of the money paid by tho other of the
he coalil not recover for those costs, since
fought to have paid over the money, and not
Knileil the action nor allowed it to proceed.
k/( V. Lake, 5 Q. B. 454.
6e sheritT cannot of his own mere motion
,1 tirisoner charged in execntion, and in
[riistmlv, the henetit of the limits. A
lor who is admitted to tho limits on giving
id to tho sherilT under 10 Vict. c. 175, is
to enter into and file the recognizance
iredhy 10 & 11 Vict. c. 1.5, within a month
1 such bond. If ho does not, the sheriff
I re-commit him to close custody or he will
|lble as for an escajie. If tho eortitieate of
I such recognizance, &c., bo not delivered to
teritf within a month, the bond to him is
-Semble, the sherifif must take a bond
t 111 Vict, if the sureties are sufficient. Cal-
, Riiltan, 13 Q. 1?. 220.
e sheriff cannot admit a debtor to the limits
1 hy statute, and where he does so on a
fnot in accordance with the act he ia liable
I a voluntary escape. Kiwjan et al. v. Jlall,
IR503.
lere, therefore, in the condition the words
I examined vivil voce or otherwise," were
-Held, that the bond afforded no justi-
, 1 ;— Held, also, that the creditor, by hav-
jquired and taken an assignment of such a
i was not oatopped from looking to tho
lb.
est factum. Lvonnrd v.
Where in declaring on a bond tho condition set
out was, that the debtor .should not dispart from
tho limit 1, and the defendant on oyer shewed the
condition to bo that tho dtditor would remain on
tlie limits until tho debt w.is paid or ho Hhould
bo legally discharged from thu limits, and de-
murred : Held, a f.atal variance. McGitirc v.
rrliKjli', M. 'I'. 3 Vict.
The declaration on a bond to the limiti t[ivcn
by a debtor in e.Kcciition must show tho ji '
mont, writ, and arrest of tho debtor, and thi
execntion of tho bond while ho was in custody ;
and tlu, recital of those facts in tho bond net otit
will not sutlieo. Liomtril v. Mi'firiili; 3 O M. i.
An avonnout that thu justices in ((ua ses-
8ioni) assigned limits to tlu, gaol Is sutKciont on
general doniurror ; and tho bond is iu)t avoidu'il
altogether because part of tho condition is con-
trary to the statute. Slililihn v. O'Grculi/, o 0,
.S. 74-2.
Tt should bo shown expressly, and not by im-
plication, that the dofondant became boninl, and
whore it did not so appear aiul no profert of any
bond was made, a iiloa of nil- debet \\a8 held
good. Douijlans v. Mitrrliiiiw, GO. S. 48.
Tn an action by a sherilT on a bond to the
limits, if defendants plead that the debtor left
tho limits, but afterwards returned to them, and
always remained on them after his return, the
shcriir may take issue on tho subso(|Uont reinjiin-
ing, and need not now assign ; but he cannot do
so if defendants by their plea do n jt admit the
bond to have boon broken before the debtor's
return, as the plea would then amount to the
general issue. And where the plaintiff declared
that tho debtor left tho limits in February, and
defendants pleaded that tlie plaintiff, as sheriff,
removed him in November, and that the debtor
returned and always afterwards remained there-
on ; and tho plaintiff replied that he did not
always afterwards remain, on which issue was
joined, and tho plaintiff ol)tained a verdict, the
court refused to arrest the judgment, the verdict,
according to the time statecl, being consistent
with the plaintiff's right, and the issue having
been in fact on the 8ul>8etpient remaining only.
Cameron v. McLeod et al. , T. T. 4 Vict
One L. was arrested under an attachment for
certain interlocutory costs, ami gave the usual
bond to the limits. Ho had never loft the limits,
but neglected to get the bond allowed within
thirty days, and the plaintiffs thereupon called
I upon the sheriff to assign the bond. Having
li'.
)
''I
363
BAIL.
i- t
mi '
lost it, the sheriflf was unable to asaij^i by
endorsement in the usual form, but he offered to
prove the loss, and execute a separate assign-
ment, or to give the ])laintiffs authority to sue
in his name. The plaintiffs declined this, and
brought an action against him, alleging in one
count refusal to assign, and in another charging
an escape. Defendant pleaded to the first count
that he was always ready to assign, b' t that the
plaintiffs never recjuircd or tendered L, him any
assignment for execution, and that he gave them
notice that they might sue cm the bond in his
name ; and to the other count not guilty. On
leave reserved to move to enter a verdict for the
plaintiffs, if the ccnrt, drawing the same infer-
ences as a .jury, should think them entitled to
recover : — Held, that the defendant was entitled
to a verdict on the first count, for though the
Elea might be immaterial, because the sheriff is
ound to prepare the assignment himself, yet
the plaintiffs had not demurred, buttakenissue ;
and the action being without merits, if the jury
had found for defendant judgment non obstante
would not have been granted. But, semlile,
per Robinson, C J., that the issue was not
immaterial, for the plea might be taken to deny
that the plaintiffs required the sheriff to assign,
and the evidence she ved that on such an issue
defendant should succeed. Burns, J., dissent-
ing, on the ground that the plea being no answer
to the first count, the plaintiffs, as the case was
left, were entitled to have a verdict entered for
them upon it. Held, also, that on the second
count the plaintiffs could not recover, for the
fact of the bond not having been allowed within
the thirty days would not make the sheriff
liable for an escape where the debtor remained
on the limits. Douijall et al. v. Moodic, 19 Q.
B. 568.
(b) Practice.
The plaintiff .must assess Ids damages after
interlocutory judgment, in debt on a bond to the
limits. CaUaylier v. Strobr'uhjc et al, Dra. 158.
'v debt on bond to the limits, an order for par-
ticulars of breach will be granted. Church v.
Barnhart, Dra. 213.
AVhere the condition of a bond is set ou t on oyer,
and it .appears on the record by that means that
the bond is within the 8 & 9 Will. III. c. 11, the
plaintiff ought to suggest his breaclies before
trial, and cannot take a verdict for the penalty,
and suggest breaches afterwards. Campbell v.
Lemon, 2 0. S. 401.
A recognizance of bail to the limits is not
within 8 & 9 Will. III. c. 1 1 ; and when there
is no plea, but a breach is assigned in the de-
claration, the plaintiff may enter linal judgment
without assessing damages. Mcyumee v. Jieilly
et al., 13 Q. B. 197.
The court cannot relieve against forfeiture of
a bail bond by neglecting to procure its allowance
within thirty days, according to the C. L P.
Act. 1857, s. 25. McKay v. Hudson, 2 P. R.
222.— Q. B.
(c) Damar/ea.
In an action by a sheriff on a limit bond it is
not necessary to shew actual pecuniary damage.
Kinijatnillv. Gardiner et al., 1 Q. B. 223.
In an action by the assignees of a sherij
against the sureties of one F., on a bond thatF.
should remain within the limits : — Held, that
the measures of tlamages was tlic amount fo,
which the debtor was in custody, witli interest
thereon, notwithstanding the debtor was insfj.
vent from tlie time of tlie arrest until the hreacli
of the condition. Kerr v. Fullarton, 10 C. P. '.'oft I
In an action by the assignees of the sherijl
against the sureties of one S. on a bond to the I
limits under l(i Vict. c. 175 : — Held, Burns, J. I
diss., that the plaintiffs were not entitled as o! |
course to the full amount of their debt and costs, f
but only to the loss actually sustained by the I
breach ; and that in this case, as it was proved
that the debtor was insolvent from tlie time of I
his arrest till his death, the verdict sliouKlhel
reiluced to nominal damages. Calcutt v. Ruttan, I
13 Q. B. 220, commented upon. Brown el al. v
Pdxton et al, 19 Q. B. 42(5. But see A'e rr v [
Fullarton, 10 0. P. 250.
[See, now, 34 Vict. c. 12, s. 7,0.]
(d) Other Cases.
AVhere in an action on a bond to the limiw, I
it was proved that the principal liad been seen
fifty yards beyond the limits, and the jury not- [
withstanding found for the defenilant, a new I
trial was grantoil on payment of costs. Clm!'t I
v. McMillan, E. T. 3 Vict. '
An admission by a debtor on the limits thai he I
had gone beyond them, is not admissible tocli;ir:i I
his sureties. Freeland v. Jones, G 0. S. 41.
8. Other Cases.
An attorney will not be ordered to pay costi I
of suit on a bond to the limits signed by him on I
behalf of an obligor. Leonard v. Glendmus, \
M. T. ). Will. IV.
The gaol limits of the city of Toronto do no! I
include the liberties of the city. Kiixj v. Lalkit, (
5 0. S. 488.
Qunerc, should the clerk of the cromi aal I
pleas grant a certificate until he is satistieil tlai I
due notice of bail has been given to the plaintif I
in the cause. White v. Fetch, 7 Q. B, l.-P.C.f
— Draper. Sec Mills v. James, 5 Q. B. '2li
The provisions of 10 & II Vict. c. 15, s. 3, u I
to gaol limits, apply to cases in which Conntj I
Court ca. sas. are issued under 13 & 14 Vict.iif
to the sheriffs of other counties than thatiil
which judgment has been obtained.
Thomas, 7 0. P. 163.
Gibm r.
IX. Miscellaneous C.vses.
Bailable process issued against two, the pkii- 1
tiff allowed to proceed against one. Lain} f. |
Harvey, Tay. 414.
A commissioner who takes a recognizance cU' I
not himself make the affidavit of such taknj [
Walbridge v. Lunt, Tay. 462,
Several actions having been brought on ab
to a sheriff for the gaol limits, the court mm I
a rule to consolidate them. Leonard v. Mtni, (
Dra. 190.
m
BAILIFF.
366
i constable who arrests under a commis-
tlioiier's writ may refuse to take bail, and if he
lioestake bail the sheriff may reject them, as
Itbe constable's duty under such a writ is only to
Mdiver the defe .ant to the sheriff ; but if the
lllieriff accept them, the bail bond is yood.
|pri«v. Sullivan et iiL, G 0. S. 040.
i defendant rendered by his bail after the
tttura of non est inventus to the capias ad satis-
jcieudum, is not in custody on mesne process,
ioi is he charged in execution so as to obtain the
LjjUy allowance. Lyman v. Vamhcur, M. T.
IVict.
Bail who have paid the costs of an action
iniiist themselves, cannot recover them from
|eir mincipal as money paid ; they must declare
^ially. Shore v. Bu. rill, M. T. 3 Vict.
I fliierc a defendant was committed to prison
J a bailable writ, and afterwards, and Ijcforethe
jehim day of the writ, was released on bail, and
M the return day of writ entered special bail,
Se was held not entitled to be served with a
tclaration before the end of the term then next
ifter such arrest. Glenn v. Box, 3 Q. B. 182.—
', C— McLean.
Semble, that the plaintiff, though the defen-
W will not put in bail, may go on with his
Etion against him, and pursue his remedy against
|e sheriff at the same time, licifnia v. Shtrijj'
^Hastings, 1 C. L. Chamb. 230.— Burns.
Semble, that bail are not bound by what the
Itomey for their principal may choose to do,
iking the attorney for the principal. Mitchell
iXobleetai, 1 C. L. Chahib. 284.— Bums.
I The bail of any of the parties who are sued
Kin a bill or note, or any persons who pay the
I or note on account of any of the parties,
Kome on payment holders ; and they hold as
pen a transfer from the person for whom they
ide the payment, not as a transfer from the
rson they have paid ; and they stand, with
Ipect to other parties to the bill or note, in the
"totion of the party for whom they have made
e payment ; and consequently, unless he could
Hve sued upon the bill or note, they cannot.
kchmon v. Munroe, 8 Q. B. 103.
fSemble, that the sheriff, if suing on a bail bond,
I not restricted to the District Court of the dis-
fct in which the bond was taken, but may sue
I the court of Queen's Bench. Hamilton v.
hin, 5 Q. B. 306.
[.Held, (Wore the passing of 16 Vict. c. 179),
tt magistrates were not liable for refusing to
nit to bail on a charge of misdemeanour, in
lalisunceof any proof of malice. Cunroy \.
tcKnimij, II Q. B. 439. See McKinley v. M un-
15 C. P. 230.
jTlie ijlaintiff having arrested the defendant,
iceeded in the suit and obtained a verilict.
ler verdict, the plaintiff obtained an order to
I aside the recognizance of bail and to take
I same off the files, on account of an alteration
lie after filing. The plaintiff', notwithstanding
Iproceeding in the action, had taken an assign-
^tof the bail bond from the sheriff, and sued
1 it as well ; and the defendant in this action
ded that special bail had been entered in the
ffial action, and demanded a replication, and
pdefendant not replying, signed judgment of
non pros : — Held, that such judgment was regu-
lar. Caspar V. Ihrachberg, 1 P. R. 176.— Chamb.
— AIcLean.
The owner of real estate being under arrest
upon civil process, conveyed his lands to a per-
son for the pnrjjose of enabling the gr<antee to
justify as special bail in the action, and after the
same had been settled the lands were reconveyed,
but in the mean time a writ against the lands of
the grantee had been placed in the hands of the
sheriff, and a sale was effected thereunder after
such reassignment, and a conveyance made to
the purchaser (the plaintiff in the writ), who had
notice of the claim set up by the original owner :
— Held, that the transaction was one against
public policy and morality, and that the court
would not lend its aid to the grantor in getting
back his estate ; but the purchaser at sheriff's
sale having in his answer disclaimed any interest
in the lands other than a lieu thereon for the
full amount of i.is judgment anil expenses, the
court decreed the plaintiff relief upon the terms
of his paying the full amount of such judgment
and expenses, together with interest and the
costs of suit ; and the defendant having also by
his answer alleged that the conveyance was made
for the purpose of enabling the grantee therein
to justify as bail and that he did justify as such
l)ail upo;' the lands so conveyed, and submitted
that "the plaintiff under the circumstances ought
to be estopped and precluded from saying that the
said lands are not the lands" of the grantee : —
Held, also, that although the defendant did not
object that the act was against public policy,
there was sutticient stated to enable the court
to give effect to the objection of illegality, not-
M'itlistanding the answer did not state that such
use would be made of the facts stated. Langloia
V. Bnlni, 10 Chy. 358 ; affirmed on rehearing, 11
Chy. 21.
BAILEE.
See Bailment.
BAILIFF.
I. Notice of Action to — See Action. »
II. Distress by — See Distress.
III. Of Division Court.— (^ee Division Court.
IV. Miscellaneous Cases.
An action on the case was held to be main-
tainable against a bailiff' of a Court of Requests
for falsely swearing to the service of a summons,
which had not been served, whereby judgment
was given against the plaintiff ; and the common
law remedy is not taken away by the action
given against the bailiff' on his covenant under
the Court of Requests Act. Vline v. McDonald,
E. T. 2 Vict.
An action for escape should be brought against
the sheriff, not against the bailiff who arrested,
unless the act complained of amounts in effect to
a rescue. Wihon v. McCullough, M. T. 2 Vict.
If a stranger having no legal process goes to
a defendant in execution, and talies down in his
predence a list of his goods, and tells him he
367
BAILMENT.
m
ii
must not remove them, and does nothing more,
he cannot be sued in trespass. So if, instead of
a stranger, a bailili' has so acted liuder a legal pro-
cess, he may have bound the property as agamst
other writs, but he cannot be sued in trespass,
as he neither removed, detained nor handled the
goods. Cameron v. Lount, 4 Q. B. 275.
The writ of fi. fa. and warrant to the bailiff must
be proved, or its production accounted for, in
order to charge the plaintiff in the execution with
an act of trespass committed by the bailiff. Ih.
An action on the case lies in favour of a sheriff
against a bailiff for negligence in allowing a
prisoner to escape, in consequence of which the
sheriff is sued by the creditor, and a verdict
recovered against him for nominal damages ; and
— Semble, that in such an action the sheriff is
allowed to recover both the costs of the action
against himself and his own costs, altliough no
notice of that action had been given to the bailiff
by the sheriff, the bailiff not being concluded by
the former verdict, if he had no opportunity of
defending in the sheriff's name. Ruttan v. 67ieo,
5 Q. B. 210.
Under the plea of not guilty the bailiff can
only prove that he was not guilty of the negli-
gence. He cannot give in evidence any special
contract of sernce, lb.
When the warrant to arrest is addressed to
two bailiffs as if jointly, one may, nevertheless,
arrest Hetherimjton v. Whelan et al., 1 C. L,
Chamb. 153. — Kobinson.
A person acting in aid of a bailiff may plead the
general issue by statute, but not if he be a mere
volunteer interfering from the mterest which he
has in the process. Dale v. Coon. 2 P. R. 180. —
Chamb. — Robinson.
Held, that a collector of taxes is responsible for
the acts of his bailiff, holding legal authority (by
warrant), from him so to act, and that an action
will lie against them jointly. Corbett v. Johnston
et. al, 11 0. P. 317. But see, also, Fi-asei' v.
Page, 18 Q. B. 227.
Action to recover the value of a mare which
had been taken and the plaintiff arrested by
defendant as a bailiff, acting under a search war-
rant against the plaintiff issued by a justice of
the peace, which commanded the bailiff' to take
and safely keep the mare until he was ordered to
deUver up the same by due course of law. The
indictment against the plaintiff having bern
ignored by the grand jury he was discharged,
and the defendant then being instructed by the
crown counsel to deliver the mare to the plain-
tiff, refused to do so, saying he had given her to
his brother, taking iv bond to indemnify himself
from loss. The plaintiff then obtained a copy of
the bond and sued thereon in the name of defen-
dant, which the defendant as the obligee stayed.
The judge in the court below being of opinion
that the defendant was entitled to tne benefit of
the statute as a bailiff acting in tlic discharge of
his duty nonsuited the plaintiff. Upon appeal :
— Held, that the facts as proved raised a question
of bona or mala tides of the defendant acting in
the discharge of his duty as a bailiff, which was
properly left to the jury, and that the jury
navmg found against him, he had no right to
invoke the aid of the atatutie. McCance v. Bate-
man, 12 C. P. 469.
The attorney for an execution creditor, and wk, I
indemnified the bailiff who executed the fi, f. I
not resiKinsible over to an assistant whom t'lHI
bailiff employed, for damages recovered aiaimll
such assistant by a person who claimed thcSI
seized as his property. Emlm v. Duwiall linl
P. 352. ' *'-'
A sale of goods by a sheriff or his bailiff tn^j,!
execution is within the 17th sec. of the SUtttil
of Frauds, and either of them may sign {q, aI
purchaser the memorandum in writing, ij Ji
same manner as an auctioneer or lij's cU I
Flintoft V. Elmore, 18 C. P. 274. ^'
BAILMENT.
I. Particulae Bailees.
1. Carriers — iS'ee Carriers — RahwibI
AND Railway Companies-Shij!|
2. Hirers of Horses— See Horsb,
3. Warehousemen — iS'ee Warehousesp I
II. Miscellaneous Cases.
A bailee of goods is not estopped from dii,!
puting the bailor's title. White v. Brmcn wo I
B. 477. ' *'
A factor has no lien on goods assigned to liiil
until they actually come into his imssesjidl
Clark V. Great Western M. W. Co., 8 C. p, ijj
Held, 1. That it is not illegal to deliver i|
money letter to a private friend on his wiil
journey, or travel, provided such letter be i!|
livered by such friend to the party to whumj
is addressed ; 2. That such friend as a grafel
tons bailee would be bound to take asmucliciiil
of the letter as he would have of his oini;lI
That if lost where he does take such care be J
not responsible. Tindall v. Hayward.'UlM
243.— C. C— Hughes.
Money is property of which a person call
a bailee so as to make him guilty of felooriiii
appropriate it to his own use. iJeoiHav. J/iu
13 C. P. 484.
Defendant hired a pair of horses from a lira
stable to go to a particular place, audafterTiii
absconded with them. The jury found tkii
first he did not intend to steal, but hsm^t
coniplished the object of hiring, he tlien i
up his mind to convert them to his own use >
Held, that he was a bailee under C. S. ('.
s. 55, and that he was properly convicted on J
indictment for larceny in the ordinary fon
Jtegina v. Tiveedy, 23 Q. B. 120.
In an action against a carrier for non-delitfl
of a package of money, defendant pleaded «
guilty. The plaintiffs' witness, tneir :^
proved that witnin a week after his deliveii
the parcel to defendant, he found that hek
absconded : that he then sued out an »tt*.'lii
against him as an absconding debtor; andtii^
as he believed, defendant was at the tifferf'
trial in gaol, charged with stealing the u
— Held, that this evidence sufficiently s'
felony, as defendant upon it might, as at
be properly convicted of larceny, under C.iJ
C. , c. 92, s. 55 ; and a nonsuit wa« i '
Hagarty, J., disB, Livingstone et al. v, ku
23 Q. B, 166.
1969
A mare was in thi
Ifas killed by defendai
laito the plaintiff's clo
Iftere bv plaintiff's fat
[k to the plaintiff, j
tv was immateri
Kly a bailee, could n
Itreng-doer. Mason \
The insolvent, a mil
Ibr the claimants, and
iof flour of a speci
,^hels of wheat, and
Jehver to them 955 ba
■lent for wheat receivei
Ifith:— Held, that this
■the wheat, which rema
Ijssolvent: that such 1
Kk the conversion of
■dbiniants might maints
■vheat or as Hour if g
%aive the tort and sue
Shen they should have
■die claim therefore was
Iffithio the Insolvent Ac
hted damages. In re
1143.
BANKRUPTCY Al
I, Assignment foe
TORS.
1. Execution of,
2. Construction c
3. What Properi
4 Time and Mot
tors, 374.
5. JRelease of Del
6. Provision for
378.
7. Preferential ji
(a) Fraudulent
DULEN'
8. Consideration
9. Filing and Re-
10. Private Stipu
Creditors, 3
11. Other Special.
12. Rights, Duties,
teet, 383.
13. Rectification oj
14 Other Cases, 3
15. By Bill of Sah
See Bills (
Mortgages
16. FravdukntAsi
Law— Frai
—Fraud ai
I II. Composition, 390.
|II. BaNKRUPTCV UNDl
1. Actions and Pn
(a) By Bankn
(b) Against Be
2i Operaiion of Eh.
24
969
BANKRUPTCY AND INSOLVENCY.
370
A mare was in the plaintiflf 's field, where it
. [filled by defendant s bull which had broken
Itatothe plaintiff's close; the mare had been put
iSereby plaintiff's father, who said he had given
to the plaintiff. Semble, that the rigiit of
operty was immaterial, as the plaintiff, even if
ilya bailee, could recover its value against a
Ifwngdoer. Mason v. Morgan, 24 Q. B. 328.
The insolvent, a miller, agreed to grind wheat
tor the claimants, and to deliver to them a bar-
lof flfiin' "f a specified quality for so many
jshelB of wheat, and he thus became liable to
^ver to them 955 barrels of flour, as equiva-
Epjt for wheat received by him and made away
Iwith:— Held, that this was a bailment only of
■the wheat, which remained the claimants, to the
lolvent: that such bailment was determined
Ibv the conversion of the wheat, so that the
l^imants might maintain trover for it either as
■wheat or as flour if ground : that they might
■aive the tort and sue for the value of the goods
■hen they should have been delivered ; and that
igie claim therefore was provable as being a debt
Ifithinthe Insolvent Act, not a claim for unliqui-
lited damages. In re Williama et al, 31 Q. B.
1143.
BANKKUPTCY AND INSOLVENCY.
1, Assignment for the Benefit op Ckedi-
TOBS.
1. Execution of, 371.
2. Construction of, 371.
3. What Property Parses, 373.
4 Time and Mode of Accession by Credi-
tors, 374.
5. Rekase of DehU, 376.
6. Provision for Carrying on Business,
378.
7. Preferential Assignments, 379.
(a) Fraudulent Conveyances-See Frau-
dulent Conveyances.
8. Consideration and Bona Fides, 380.
9. Filing and Re-fiUng, 381.
10. Private Stipulations with Particular
Creditors, 382.
11. Other Special Provisions, 383.
12. Rights, Duties, and Liabilities of Trus-
teett, 383.
13. Rectification of Mistake in, 387.
14. Other Cases, 387.
15. By Bill of Sale or Chattel Mortgage —
See Bills of Sale and Chattel
MORTQAOES.
16. Fraudulent Assignments-See Criminal
Law— Fraudulent Conveyances
—Fraud and Misrepresentation.
- II. Composition, 390.
^III, Bankruptcy under 7 Vict. c. 10.
1. Actions and Proceedings.
(a) By Bankrupt or Assignees, 392.
(b) Against Bankrupt, 392.
2, Operation of Executions, 392.
24
3. Fraud and Fraudulent Preferences, 393.
4. Other Cases, 394.
IV. Acts for Relief of Insolvent Debtors
before 1864,
1. Decisions wider 5 Will. IV. c. 3, and
10-11 Vict. c. 15, now C. S. U. C.
c. 26.
(a) Weekly Allowance, 397.
(b) Application for Discharge, 397.
(c) Preferential Sales or Assignments
under s. 18 — See Fraudulent
Conveyances ; also Col. 379.
2. Decisions under S Vict. c. 48, and 19-20
Vict. c. 93, notv C. S. U. G. c. isl-
and under 7 Vict. c. 31, 401.
V. Examination of Judgment Debtors.
1. Under C. S. U. C. c. 24, s. 41, 403.
2. Under Division Courts Act, C. S. U. C.
c. 19, ss. 160-173, 408.
3. To Attach Debts, itnder C. L. P. Act, s.
287 — See Attachment of Debts.
VI. Insolvent Acts of 1864, 1865, and 1869.
1. Who may come under, 409.
2. Comindsory Liquidation, 410.
3. Assignees.
(a) Appointment of, 413.
(b) What property Vests in, 415.
(c) Rights, Duties, and Liabilities, 418.
4. Rights of Mortgagees, 421.
5. Proof of Debts.
(a) Creditors holding security, 422.
(b) Preferential Claims, 422.
(c) Partnership Debts, 423.
(d) Other Cases, 424.
6. Operation of Exeoitions, 426.
7. Fraud and Fraudulent Preferences.
(a) Transactions Protected, 430.
(b) Transactions Avoided, 437.
8. Composition and Discharge.
(a) Grounds for Refusing Discharge,
439.
(b) Effect of Discharge, 441.
(c) Deed of Composition, 443. '
(d) Other Cases, 447.
9. Procedure.
(a) Appeal, 448.
(b) Otiier Matters, 451.
10. Other Cases, 452.
VII. Foreign Bankruptcy Laws, 453.
VIII. Miscellaneous Cases, 454.
IX. Incidental Proceedings.
1. Arrest — See Absconding Debtor— Ar-
rest — Attachment of the Person
— Examination of Judgment Debt-
ors, supra.
2. Discharge of Bail under Bankruptcy or
Insolvency Acts — See Bail.
3. When Insolvent ordered to give Security
for Costs— See Costs.
>\i
i M
iilf
Mil
(f *
871
BANKRUPTCY AND INSOLVENCY.
31
4. Cognovit — See Coonovit-Fraudulent
JUDOMENT.
5. Jiidf/metits — See Fbaudulent Judci-
MENTS.
6. Bankrupt Mortijagor Party to Fore-
closure Suit — iS>« MORTOAOK.
7. Bight of Trimtee in Bankruptcy to
iiedeem — See Mortciaoe.
8. Se(piestratio7i — See Sequestration.
9. Bectiver — See Re(;eiver.
X. False Representation of Solvency—
See Fraud and MisRErRESENTATioN.
XI, Taking Malicious proceeuinosin Bank-
RUiTCY — See Malicious Akrest, Pros-
' ECUTION, AND OTHER PrOCEEDINOS.
I. Assignment for the Benefit of Creditors.
1. Execidion of.
Execution by all the trustees is not absolutely
necessary. Ilaiijht et al. v. Munro, 9 C P. 4G2.
See I. 4, p. 374; I. 5, p. 376.
2. Construction of.
W. being indebted to B. and to the plaintiff,
absconded, and B. attached his goods ; but he
afterwards returned, and made an arrangement,
on which the attachment was witlulrawn. W.
then executed an assignment to the plaintiff,
which recited that he was indebted to him " in
a large sum of money," and assigned "all and
singular his stock iu trade, chattels, debts," &c.,
and "all his personal estate and effects whatso-
ever and wheresoever," upon trust to sell and
pay the plaintiff (the assignee) all indebtedness
and moneys due and owing by \V. to him, and
to pay the surplus, if any, to W. Ho left the
province again next day ; the plaintiff took pos-
sesion of the goods, and the defendant some
weeks after sued out an attachment for a debt
due to him by \V. On an interpleader issue the
jury found that the assigmnent was made in good
faith to secure a debt duo : — iield, that the
assignment could not bo upheld, for it neither
specified the amount secured, nor gave any sche-
dule of the goods and debts ; and a new trial was
granted. JloweU v. McFarlane, l(j Q. B. 4(j9.
Semble, that the second attachment could not
prevent the assignment. Ih.
The assignment, in addition to the conveyance
of the property, contained a power of attorney
to the assignee to take and hold it, but was void
under the statute as an assignment for wfint of
tiling :— Held, that the assignee's right could
clearly not be sustained under the i)ower of attor-
ney. Wilson V. Kerr, 18 Q. B. 470, in Appeal.
In a schedule of debts appended to a deed of
arrangement between a debtor and his creditors,
a claim was inserted under the head of ' ' Mer-
chant's account : — Held, that the claim was not
improperly described, alihough at the time of
entering into such deed tlie account was fully
secured by a mortgage on real estate and other
securities. Henderson v. Macdonald, 20 Chy. 334.
Held, that an assignment for the Iwiieft,
creditors generally, which contained a ^]^r,
reserving all rights and remedies against thj
parties, but releasing the assignor from lijjt,-
bility, operated only as a covenant not tusuejwP
not as a release. Ilall v. Thoinpson, 9C, p ot]
II. being indebted to B. and V. , tliu plaintifJ
in S979.7(>, gives his note iu Septemltcr, |tt|
at six months, payable at the Bank of Mu'ntrtil
in Ouclph, with current rate of exchange' (ju j J
York. In June, 18()0, K. made an agsignnKni .1
which the plaintiff's were executing parties, irtJ
— after reciting an agreement by K.'a creiliti^l
to accept 5s. in the £, payable iu six and [-^(A
months, to be secured l)y notes satisfactdrilv-
dorsed, and a covenant by K, to pay tliat snnli
contained an absolute release of K. from all tt,!
executing it. The plaintiffs before excciitini'^ijl
instrument claimed the promised endorsid ii lij]'!
or to hold the original note till the Cdniimijal
was paid. On the (ith of August, 18(i0, aiintiJ
assignment w.as made by II., in trust,
should pay his creditors their divideml, aiii iji
sent to the plaintiffs for execution, witln-l
statement that he (R. ) could not get the st. ijujl
wanted, " the party that promised to becoiKj
partner drew back." This assignment tlitplii;.l
tiff's did not sign, because when the first ofj
fell through they sold the original note, nil
claimed to have nothing more to do vith t||l
matter : — Held, tliat the giving of the iiutts kl
R. was not a condition precedent to the (Itlivdjl
of the iirst assignment, and that the cxihukjI
and delivery of it, as it contained an ayal
release, operated as a discharge of the oriml
debt. 2. That the deed of the Oth of Aii^iJ
did not annul the former assiguiucut. 3, lli|
this action for goods sold, the coiisideratiot ;/|
the original note, being brouglit prior to the litJ
January, 18G1, (when the nrst instahueut Ijetml
due on the assigument) and the rtdease in til
instrument being absolute, the non-payiiitajl
that instalment did not remit the parties lti|
to their original position, and tlie vaHdityoial
original assignment was not in (piustion. i*\
diet et al. V. But/urford, 11 C. P. 213.
A debtor conveyed his real estate to tmstol
for the benefit of his creditors, to lie {hsiioswil
by tlie trustees, first, by a lottery, and f,uliii,;i|
that plan of disposition, then iu trust to stll<|
the trustees should deem most alvantagwns:-
Held, that although the deed was voidastoi|
trust for a lottery, it was valid as to tlicoiiil
trusts therein declared. Gvodfrf v. MmffM
Chy. 114.
Various proposals having been made ioii|
composition by all the creditors of an miat^
person, A. executed a deed to a trustee, rttia
that an agreement to that effect had beta t^fl
to, and conveying certain property to tlietri«r
to secure any person or persons wlio miikl
indorse the composition notes wliieli thedel*!!
were to receive. B., a creditor, indorsed tlr|
notes of the other creditors, but was to r
payment in full of his owndeniaiul :— HelLtill
th J trust deed was not a security fortlie iiotekf
indorsed, the dei;d being available only li 41
composition was accepted l)y all the cmliMil
Clarke v. Bitchcy, 11 Chy. 499.
A trust was created for the benefit (if o»J|
tors pro rati, in consideration of their, Jis-M
ing the debtor ; all the creditors, eiceplS
M3
BANKRUPTCY AND INSOLVENCY.
374
W-y-
aintiffs, accepted from two creditors, v
Kome responsible for the fidelity of the
who had
trustee,
renty-five per cent, of their demands, in full ;
estate yielded more :— Held, that the plain-
had no right to the whole of the difference.
Mmn V. riiomiM, 15 Chy. 119.
The mortgagee filed his bill against the assignee
the mortgagor, whose title was that of an
lipice for the benefit of the creditors under a
1st ileeil, excluding all preference and priority,
ilia that the trust estate might bo lirst
iplitHl in payment of his specialty debt, and
ins an account against the trustee, witli the
lew of' charging the trustee with all payuieuts
le liy him to simple contract creditors boforu
liM'ving specialty debts. He then asked a sale
the mortgaged premises to make up any de-
eiicy. The trustee, instead of tiling a incmo-
idum disputing the debt, i)ut in his answer
(testing the right of the mortgagee to the relief
lYcd for ai^aiust the trust estate, and submit-
that the' mortgagee was only entitled to the
ial foreclosure or sale decree, but not to the
„ other than as on a pi a-cipo decree :— Held,
rtas the trust deed excluded all preference
priority as to the payment of the debts,
rules applicable to the administration of the
ites of intestates did not apply, and the
gagee, for anything beyond what his mort-
would realize, could claim only the same as
ircreditors ; and as the mortgagee could have
ined all the relief he was entitled to by a
jee on prajcipe he was declared entitled only
the costs of such a decree, and was ordered
my to the trustee his costs of defending
I tnist estate. Gore Bank v. Sutherland, 1 L.
K.S. 159.-Chy.
Ik. was trustee for sale of certain lands belong-
to M. Two parcels were subject to a mort-
to the Bank of Upper Canada for more than
value thereof. The trustee agreed for the
of these parcels to a purchaser ; the Bank,
ire beconung insolvent, assented to the sale
received the first instalment of the purchase
ey. The purchaser went into possession,
was m default in paying purchase money ;
defendants were his assigns. By the trust
which the hank executed on beconung in-
ent, (which deed was afterwards cdiiiirmed
ftatute), it was made the duty of the bank
ics to accept in payment and liquidation of
debt duo to the estate the notes or hills of
bank. On a bill by the bank tnistees for
icnt, it was held that as the money was
ling to the bank, the trustees were bound to
it payment m the m )tes of the bank at par.
Tmtmoflhe Hank of U. C. v. The Cana-
SuciijatioH Co., Id Chy. 479.
! Heward v. MitcheU ct al., 11 Q. B. 625, p.
Amlemn v. (iamble, 8 Q. B. 437, p. 395.
3. What Properhj Passes.
Ideed was executed by John N. Kline & Son,
p first part, whereby, after reciting that they
proposed and agreed to assign all their per-
1 estate and effects to certain parties of the
nd part, they conveyed and assigned to the
^parties " all and singular the stock in trade
s, merchandise, sum and snma of money,
I l»uda, drafts, mortgages, books of account
of what nature or kind soever, belonging to or
due or owing to the said parties of the first part,
and which are set forth in the schedule hereto
annexed, marked with the letter A., and sub-
scribed by the parties hereto of the first and
second parts ; and all the personal estate what-
soever, of the said parties f)f the first part, and
all their estate and interest therein. " No sched-
ule was attached to the deed at the time of exe-
cution, but schedules were afterwards annexed,
signed John N. Kline & Son, JohnN. Kline, jr.,
Anthony Kline : — Held, that, independently of
of the schedule, the words of the assignment
were large enough to include both the individual
and joint personal iiroperty of .Tohn N. Kline.
lli'wurd V. MUchell d a/., 10 Q. B. 535.
A testator gave all his estate, real and per-
sonal, to his executors in trust, empowering
them to continue his business, which they accord-
ingly did for several years, and in doing so had
ac(]uired a large amount of property, and subse-
(juently assigned the same, as well that portion
remaining left by the testator (about one-ninth)
as that acipiired since his death, to certain trus-
tees for all creditors of the estate, and each
executor severally a.ssigned for the benefit of
individual creditors. The trustees took and
continued in the possession of the chattels
assigned under the several conveyances. The
trusts declared were for the benefit pari passu of
creditors coming in, and who were not bound to
release their claims. A judgment having been
recovered against the executors individually,
upon a note made by them as executors, the
judgment creditors claimed a right to seize the
goods in the hands of the trustees, notwith-
standing the assignments thereof. In an inter-
pleader suit brought to try the question, the
court below detennined that the assignments
were sufficient to pass and did pass the pro-
perty to the trustees, who were therefore enti-
tled as plaintiffs to a verdict ; and that the
judgment creditors were entitled, if their judg-
ment and execution were against the executors,
I to claim as creditors upon the estate assigned by
them as such, and if necessary on the separate
estate of each, the joint estate being exhausted.
On appeal the judgment below was affirmed.
Kerr v. Haldan, 2 E. & A. 382 ; affirming Hal-
dan V. Kerr, 12 C. P. ()20,
See Harris v. Commercial Bank, 16 Q. B. 437,
p. 382.
4. Time and Mode of Accession by Creditors.
The assignment contained three parties, C B.,
the assignor, being the party of the first part,
the defendants, the assignees, of the second
part, and "the several other persons whoso
names and seals are hereunto subscribed and
fixed, creditors of the said C. B., of the third
part." No creditor executed the assignment,
but the defendants (assignees) admitted part of
the plaintiff's claim by letter : — Held, that such
admission made him a party to the assignment,
although he had not executed it, and that they
were liable for money had and received. Bur-
rows V. Gates et al., 8 C. P. 121.
If the assignee be not a creditor, the assign-
ment is void against an execution coming in be-
fore any creditor has executed, Mauleon v.
Topping et al., 17 Q. B. 183.
i'.ii
I! t>-
If '
375
BANKRUPTCY AND INSOLVENCY.
A conveyance of property for the benefit of
creditors may create a valid and irrevocable
trust, although none of the creditors are either
parties or pnvy to the deed ; and when in its
inception it is not so, subsequent dealings or
communications between the debtor or his trus-
tees and the creditors may render the trusts
irrevocable. Ooodeve v. Maiinem, 5 Chy. 114.
An assignment was made for the benefit of
such creditors as should execute within a time
named in it. One creditor, instead of executing,
Bued the debtors, and an interpleader issue hav-
ing been found against him, a motion in the
Queen's Bench for a new trial Wfis refused.
Thereupon, after the time limited for signing,
the trustees allowed him to execute the deed.
Upon a bill filed by a creditor who had previously
recovered judgment and registered the same
against the trust estate, the court declared the
plaintiff entitled to payment of his claim out of
the proceeds of the estate in the hands of the
trustees ; and that the creditor who had con-
tested the validity of the deed, had thereby
forfeited all right to participate in the benefit of
the assignment. Joseph v. Bostwick, 7 Chy. 332.
In a suit instituted by the creditor of the
estate of a deceased debtor who had made an
assignment for the benefit of his creditors, cer-
tain other creditors, who had not signed or
accepted the deed of assignment, sought to come
in under the decree and partake of the benefit of
the trusts. The trust deed had been made in
1857. The assignor had died in 1863, and the
assignment was to be executed by the creditors
within two months of its date. The account-
ants declined to receive proof of the claims ; and
an application in chambers for leave to come in
and sign the deed, and participate in the residue
of the estate, was refused. Schreiber v. Fraser,
2 Chy. Chamb. 271— Mowat.
Where a debtor made an assignment to trustees
for the benefit of those creditors only who should
execute it within one year, or notify the trustees
in writing of their assent to it ; and where one
creditor had been aware of the terms of the deed,
and neglected to sign it, but had notified one of
the trustees of his assent ; and another creditor
had not been aware of the deed, but had taken
. no proceedings hostile to it, and had given his
assent to it when it came to his knowledge ; and
another, though aware of the deed and its pro-
vision, had neither executed it nor notified the
trustees of his assent to it, but had never acted
contrary or taken proceedings hostile to it : —
Held, that they were entitled to come in and
prove their claims equally with those creditors
who had executed the deed in accordance with
its terms, although they had allowed more than
ten years to elapse. It being objected that the
application was made by petition in chambers,
and not by a separate suit : — Held, that it was
properly made in chambers by petition in the
original suit. The statute of limitations being
urged against the admission of the claims : —
Held, that the relation of trustee and cestui que
trust had been established between the assignees
and the creditors who had acquiesced in the
deed, as well as those who had actually executed
it, and that therefore the statute was inoperative.
There was also the additional reason in two
cases that the statute had never begun to run,
owing to the creditors' right of aotion having
arisen after the debtor had absconded
Adavis, 8 L. J. N. S. 211
— Taylor, Referee.
37! I
4 Chy. Chamb. Iij
A creditor who had not comt in pursuant til
advertisement, was allowed to do so aft«r tl I
master had reported as to the debts, and aftw I
decree on further directions, but he was reqniJl
to pay all costs of his application. Andrmt
Muuhon, 1 Chy. Chamb. 316.— Mowat.
The mere fact that certain creditors hadnotwl
of an assignment does not make the deed imv |
cable. Spooner v. Jones, 3 Chy. Chamb. 48i *
Boyd, Master. ' '"
Where the assignee afterwards re -conveyed til
the grantor, some of whose creditors had been k I
formed of such assignment, but had done no mI
to alter their position, and the land was a,,. I
wards sold for taxes :— Held, that the rvssimeiiil
was revoked, and did not affect the title, /j f
See Tm/lor v. Whittemore, 10 Q B 44fl,l
378 ; McKay v. Parish, 15 Chy. 333 n uil
McDonald y. Wright, 12 Chy. 552, p. 389. 'SI
calf V. Keefer, 8 Chy. 392, p. 379; IFfa J
Kerr, 17 Q. B. 168, p. 380. '
5. Release of Debts,
Assignments held fraudulent before "2 Tiiil
c. 9(i, s. 19, now C. S. U. C. c. 26, s' 18 fil
exacting a release in full from tliose execniil
Wilson V. Kerr, 17 Q. B. 168, 18 Q B ^1
Maulsonv. Toppinr/, 17 Q. B. IS3 iMcDomlM
Putnam, 7 Chy. 395. '
B. on the 31st of March, 1859, (after22Tiit|
c. 96,) assigned all his personal estate to tratal
in trust for all his creditors ; but the assigniMtl
contained a release to him from all further liiBf
ity, and it was declared that any creditorref»|
ing or neglecting within six months after notal
to execute the deed or otherwise to dischatBll
assignor, should lose all benefit therefrom ; lil
that the trustees might pay the amount oilil
claim to the assignor. This deed was exefliiil
by B. and the trustees, both of whom ml
creditors. Afterwards, and before thedefaJI
ants' execution was placed in the sheriff's hu
B. executed a deed-poll, authorizing the traitnl
to pay all creditors unconditionally, withoDi*
quiring them to execute the assignment or J
charge him :— Held, that the assignment t
void as against defendants, execution creditu
and that its validity was not restored bfi,
second deed. Remarks as to the effects
release in assignments before 22 Vict c. B
Burritt et al. v. Robertson et al, 18 Q. B. 53 1
Where a debtor, before 22 Vict. c. 96, assiji
his estate and effects to trustees for the satii
tion of his debts, without reserve :— HelJ,»L
ing Bank of Toronto v. Eccles, 10 C. P. 282,11
he might, under the then state of the law, 4
late for a release to himself from all furtieii
bility. Esten, V.C, and Spragge, V.C, dis.-i
Held, also, that such release may still be iiM
upon without any reference to the amonntollj
dividend to be paid by his estate. Batkiii,
ronto V. Eccles, 2 £. & A. 53.
An assignment for such creditors as J
execute it within thirty days, and agree t^
lease the assignoi :— Held, void under IS rJ
m
_^ 96, 9. 19. Darli)
\lti; Orapperv. Pa
Held, that an ass
jneral benefit of c
) employ the assigi
ess, givmg those i
jid containing a i
liose executing slu
flt release," amoun;
(table payment of i
i vabd. Feehan i
Debtors having ob
I titeusiou of time
jtbts in full, and not
Icept for the benefit
Bbsequently they n
Eilitor for the hcnef
J a release from all :
editors executing.
Bigument to be m i
lent, and that the i
ticipate ratably ir
ffects without releas
ns. Taylor v. J/i
. The creditors of an
Ibeolutely released hir
pemorandum on the
elease was intend'jd
Jie debtor delivering
btes, which, howev
I procure, and in
J agreed upon : — Heh
Btitled in this court
ttt'iX original claim, n
lebtor oflfered to pay
stipulated by th
Ht the notes should I
tes agreed upon ; £
common law had
liters to recover v/aa
Hilly. Rnthcrfor
[J., by deed, execi. ced
Tkveyedallhi&iealaiK
\ household furnitun
bt of his debts, stipu
I expenses, and luiti
tied out or ine p
, lees should, before
ilits, pay to hi;n, out
"^ the estate, tlie sun
»rt of his wife and
tave the benefit of th
pin a limited time ; t
iaid to the creditor
ed sufficient to pa'
I that the creditors sli
TIC liability. Two c
subsequently S. mac
B tnietees, coutainiiii
Icreditors who shoul
■ upon similar trusts,
Ireservation in his o
pdered questionable,
p the second deed,
lerative to pass real
^11 the lands, and t
X became the purcha
lafterwards abandonei
•e deed of assignment
i*ho had lodged an ej
> subsequently to tl
' » Dill praying to h
\t1
BANKRUPTCY AND INSOLVENCY.
m
DarUng et al. v. McTntijre, 19 Q. B.
Patterson ct al., 19 Q. B. 1(J0.
|ft96,8.l9.
VHA; Crappery'
M..l,l that an assignment (duly filed) for tlie
.n;rfd'benc6tof creditors, containing a power
'^ nlov the assignor in winding up the busi-
"^ OTVUiC those a share who should execute,
'^ n+ai^iinir a release clause, except where
. .Sting should add the words, "with-
^release," amounted to a provision for the
♦Iwp navment of all the assignor's debts, and
*!^^£ Feehan v. Lee et al, 10 C. P. 385.
Debtors having obtained from their creditors
nTteiwionof time, covenanted to pay all the
l,t, in full, and not to part with tlieir effects
.Zt for the benefit of their creditors generally.
twnncntlv they made an assignment to one
Sr for the benefit of all, the^deed contain-
.1 release from all further indebtedness by the
llitors executing. The court declared such
.imment to be in contravention of the agree-
*nt and that the creditors were entitled to
«+idpate ratably in the proceeds of the trust
fects without releasing the balance of their
Taylor v. Mabley, 6 Chy. 570.
The creditors of an insolvent debtor, by deed,
Ikolutelv released him ; but it appeared by a
ttmoramlum on the instrument that such
Jease was intemlod to be m consideration of
debtor delivering Jm certain indorsed
■63 which, howevf j stated he was unable
nrccure, and in ' t they were not delivered
ajrreedupon:— Held, that the creditors were
ititted in this court to enforce payment of
tlr original claim, notwithstanding that the
btor offered to pay the sum for which it
« stipulated by the deed of composition
At the notes should be given, or to give the
agreed upon; and although the court
common law had held the right of the
ditors to recover v/as gone. Spragge, V. C,
milv. Rutherford, 9 Chy. 207.
I B., by deed, executed by two of his creditors,
Iveyed all hib leal and personal estate, except
I household furniture, to trustees, for pay-
btof his debts, stipulating that after paying
; expenses, and imtil the tnists should be
Ked out or one property exhausted, the
jtees should, before payment of any of the
ibt3, pay to him, out of the moneys \.i:.v. ed
1 the estate, the sum of £375 a year for the
^rt of his wife and family ; that creditors,
jave the benefit of the deed, must execute it
|iin a limited time ; that no dividend should
iiaid to the creditors till a sum had been
_(A sufficient to pay them 2s. 6'd. in the £,
I that the creditors should release S. from all
liability. Two creditors only executed,
I subsequently S. made another deed to the
)b trustees, containing a similar release from
Icrcditora who should become parties to it,
I upon similar trusts, with the exception of
1 reservation in his own favour, which was
lidered questionable. Tlie trustees acted
y the second deed, and though both were
|erative to pass real estate, they proceeded
lell the lands, and the plaintiffs, the City
k, became the purchasers, but the purchase
tafterwards abandoned because of this defect
|e deed of assignment. Afterwards a credi-
vho had lodged an execution in the sheriff's
b subsequently to the deed of assignment,
I a bill praying to have the firot deed set
aside, or, in the altei-nativc, that he might bo
allowed to share in the proceeds of the estate
without complying with the stipulation for a
release : — Held, (in accordance with Bank of
Toronto v. Eccles, 2 E. & A. 53,) 1. That the
stipulation for release did not invalidate the
deed. 2. That the provision for the payment
of a dividend miglit, under certain circum-
stances, be considered unreasonable and fraudu-
lent ; and 3. That the second deed was not
objectionable by reason of anything appearing
on its face ; although the validity of the first
deed might be open to question. Under these
circumstances the plaintiff was allowed to share
under the deed in such portions of the property
as had not already been divided among the
creditors assenting thereto, upon his executing the
deed ; all other creditors who had not deprived
themselves of the right to come in admitted on
same terms. Mulholland v. Hamilton, 10 Chy. 45.
See Ifall'v. -Thompson, 9 C, P. 257, p. 372 ;
Benediet v. Rutherford, 11 C. P. 213, p. 372;
MeDonald v. Putnam, 7 Chy. 395, p. 381 ; Mul-
hollnndv. Hamilton, 15 Chy. 53, p. 380 ; Oillespis
v. Nickerson, 6 Q. B. 628, p. 399.
6. Provision for Carryijig on Bnsineas,
The plaintiffs claimed under an assignment by
M. , the execution debtor, to them of all his real
and personal property, uiwn certain trusts. This
deed provided for payment — first, to certain
pri\'ileged creditors of the sums mentioned ; and
next, to pay a ratable proportion to the same
creditors of the residue of their demands, and
also a ratable proportion to all creditors execu-
ting within two months. There were also pro-
visions, that if the trustees should think it
advisable, and a majority in value of the credi-
tors signing the deed should consent, they
might carry on the business for the benefit of
such creditors, employing M. for this purpose,
and making him an allowance ; that from time
to time out of the proceeds realized they might
purchase new stock, but the business to be wound
up, at all events, within two years ; and that the
trustees might permit M. to use such portions
of b'l household furniture, for such time and
on such tenns as they should think proper. The
furniture was left in M. 's possession, being used
in rooms over the shop, where lie continued to
live. The deed was registered with the clerk of
the County Court, but there was no afl&davit
verifying any debt : — Held, first, that it was
properly left to the jury to say whether they be-
lieved that the assignment was in truth made for
the benefit of the creditors, and that the plain-
tiffs had taken possession, and were acting bond,
fide under it. Secondly, that none of the pro-
visions above mentioned conld be considered as
illegal or affording evidence of fraud. Taylor
V. yVhiltemore, 10 Q. B. 440.
Held, that an assignment after 22 Vict. c.
96, purporting to be for the general benefit of
creclitors, with power to the assignees to make
advances for conducting and winding up the
business, no time being Umited within which it
was to be wound up ; such advances to be the
first charge upon the assets, with ten per cent,
profit upon all moneys received as compensation
for the advances and for the trouble in winding
up, with power to employ the assignor at a
m
i \)\
If
Si
1'
379
BANKRUPTCY AND INSOLVENCY.
I2i1i:':i
381 1
salary in their (liacrotion, was void ."is against
Bubauqiiunt judgment crediturH. //niilri/ </ (if.
V. Ifarh/ii it!., 9 V. V. Tf-'O.
An ivssignmunt, gave tliu tnistues ptiwor from
tinio to time, as tlioy uhiiuld ducm oxpodiunt,
"to puruliasu stock for tlio i)ur])()so of i;nal)liiig
them to assort and soil oil' tlio i)rL'Ht'nt stock to
the buHt ailvantago, for the lionulit of the
estate :"- -Held, that creditors executing would
not by this become partners in the lius<ini\ss, and
that the clause was not ot)jocti(>ual)le. JhiMlnoii
etnl. V. JWki't nl., IH Q. B. \\X
The assignment, made before 'J'J \'ict. c. !)f>,
provided that the assignee niiglit carry on the
business for tiie benclit of tlie creditors exe-
cuting, and employ the debtor to manage it, at
such salary as miglit be agreed on, and supply
Koods to keep up the stock and for tlie more
bcnolieial management of the business for the
interest of tlie creditors, antl pay for such goods
out of tlie trust estate. Qu;ere, whetlier tliis
wouhl make tlie executing creditors partners in
the business, Cni/iiiir v. J\tl(i'Kuii li iil., W I).
B. IGO.
A provision for carrying on the business so
as to render the creditors partners with the
trustees quoad tiiird persons, or one wliich may
cause unreasonable or prejudicial delay to the
creditors, renders the deed void. Metcnif v.
Kcffr, 8 Chy. 392.
See Kirr v. IIuMmi, 2 \L & A. ,SS'.\ p. \M\ ;
FeelMti v. Lve, 10 C. P. 385, p. 377.
7. Preferential AKs'iijnmi'iiix.
Held, that an assignment obtained by pressure,
of all the trader's goods, in trust to secure the
plaintiff in preference over otlier creditors, and
to pay the residue to siuh trader, was not frau-
dulent, possession havi :g been changed con-
sistently witii the deed. Mcl'liinxin v. Jt'ei/nijld,^,
6 C. P. 491.
Per Burns, J. — Under 22 Vict. c. 9(>, an assign-
ment is invalid if made only for the beuelit of
creditors who execute it. linrrittil at. v. Ituherl-
soii e.t nl., 18 Q. B. 555.
An assignment for such creditors as sliould exe-
cute it within thirty days, and agree to release
the assignor : — Held, void under 22 \'iet. e. 9(>,
8. 19. Darlimi et al. v. Mr/nti/re, 19 Q. B. 154 ;
Crapper v. Patemon et al., Ih. KiO. See, also,
WiUon V. Kerr, 17 Q. B. 168.
A provision appointing a time within which
creditors must come in and execute, in order to
receive the benefit of the trusts, docs not render
the deeil void under 22 Vict. c. 2(). Metealf v.
Keefer, 8 Ohy. 392.
Semble, the 22 Vict. e. 2(), has not altered the
Iftw oxcopt as to preferential assignments. Ih.
An assignment of all the assignor's property
including l)ook debts, &e., in trust to pay, lirst'
all executions in the hands of tlio sheritf or of
any bailiff of any Division Court in the county,
and, secondly, all debts due to the persons
named iu the schedule annexed, and all other
creditors omitted there, but who should in due
time come into the assignment ; but in cise
(after satisfying the executions) there should not
be enough to pay the same in fuU, then to dis-
tribute pro ratd. among the persons uomed iu the
iid return the suqdus, if any, to h I
Held, void, uniler V. S. U. ('< |'l
Hchednle, and
assignor : lleici, voiii, uniler t:. ,s. (T. (< ^ ^|
H. 18, as not being for the purpose of ]i;ivjn,^l
creditors witliout preference. W'nttA v';;'T
et It!., 21 (}. B. 2i)ii.
K. L., being eiubarasaed, in Juno, I S.IT, assi J
his goods, lauds, kc, to trustees, giviiK' |ir3
ence to certain creditors. AfterwaiilM, wijiiC
to resume business, he proposed that tln' n*,^
nal estate should be re-conveyed to liij j,J
time given under certain conditions for iia\TjJ
of the ilebts, the lands being couveycil fciti
creditors iu trust for all. Tiiis wa.s agree,! i
by tile truateus and inost of the eruiliturs uJ
re-con veyanees executed. The plaintiffs \\at~
dorsers on ]iaper of K. Ij. held j)y M., aorciln I
preferred in the lirst assignment. m1 iifn,yf
re-convey unless the plaintitFs reiicwcii tl J
liability to him on the paiier tiion (jvctit'
whieli they did, .and M. then signeil therei)!|
veyanees. i'laintifl's had afterwanls to mv i
notes held by M., whereupon they tiluiiV
bill, claiming to stand in the place df M ,1
preferred creditors under the original ,■>«"
nient : -Held, that they could not' elaini ni
l)riority, or the priority provided for them J
the first assignment, but must I'ank iwri ij
with the other creditors. Lamou v. Mnfyi
(;iiy. 328. •^ '
Wliere a debtor, before 22 Virt., c, %A
signed his estate and etTeets to trustees for iJ
satisfaction of liis debts without reserve. HeU
allirmiiig Bank of Toronto r. Hccles, IOC. P.jl
tliab lie might, under the then state of the lii|
stipulate- for the payment of some of hisoitil
tors in full and a ratable distribution as toil
rest, /laid' 0/ Toronto v. Eccles, 2 E. & .1 a F
In 1 857 A. made an assignment for the ]m\
of his creditor.", and thereby provide,! i,irti|
jirefercntial payment of all sums whieh •
per.-ioiis were liable for, as sureties or iiil
for liini :-~-IIeld, that the creditors to wkil
tliese secureil sums wt.e due were eiitit!ol»l
the beuelit of this provision, and woiiM unt lil
it l)y executing the deed of assignment, tWi
it contained a clause releasing tlie delitur. .k|
hotlanil V. Jfaiii'tlton, 15 Chy. 53.
See Tdi/lorv. W/iltteniore, lOQ. R 4W,p.,?;iJ
T/ioniev. Torranee, lt> Cl P. 4-1."), ISl'.r.ilif
388 ; Sqinrey. Ualf, 29 Q, B. 328, p. 3S9.
8. t'on.thleration anil Ihnn Fnh
An assignment or sale of personal prop
upon trust to jiay creditors (orupflnntherti
is within the statutes reipiiring rogi8tratii>n. 1
consideration for such assignment is "lioniiyi
within those acts, tluuigh snine ereilitotsi
thereby lose their debts ; for a (lebtormajij
his creditors iu such order as he inay I'
proper. Jfewaril v. Mitehell et al. 11 Q. Bi
t)n an interpleader issue to try the valifel
an assignment in trust for creditors, the «
being left to dr.iw the same infcreneesasiid
— Held, that it was fraudulent for the a
to assign on the uiulcrstandiug thatksl
keep possession of his household funiitnw i
.wu V. Kerr et nl, 17 Q. B. 168 ; 18 Q.i.'l\
Held, that the assigument in the alxwj
was also fraudulent because it coutaimil'l
ulation that no creditors should sbaie i
SI
hose executing wit
I full on euliditioii
of the in'oueeils
iiroviso that tlie
iit'iior. //'.
A. on the 4th of .1
1 ettiite ahaohitely
ion III Tis. ; this (i
'eiid.intfl, and was
.'ith A. iMftdp an
DCRiIly, wliiuh deei
adants and otiier er
! not registered, a
nsts, on which the 1
Hornier one, wvrv :
nveyaiieu heiiig iiii
d, that it was con
Itoshen' the existem
the ,5s. exjiress
rils, "and for oth
litted, JJank of Ti
1 r. 282.
|C. S. L^. C. e. 4.'), d,
uideration. Xnell \
I Chanil).— Drajier.
1 assignment for th
I ,Ts far .18 the cft'eet
acceptance of tlie
) swear they are crei
ratiuii to support tin
1 assignment by an :
jcrcditors set aside, as
ise hy tlie creditors,
jccution about to be
1 the creditors geiier;
', according to their ji
ae property wliicli
lee. McDuiuilil v. J
iSeel. 0, p. 378; 7, ]
9. Filiiiij aim
J assigmuent or sale
Itnist to p.ay creditors
Wthiii the statutes 1
nrdwMMdletal.,
•Ill, that tlio assigniii
ieidars of wliicli are
1 be considered as a
Pigc, and tlierefore
1 under li.> ^'ict. c. .
••(lidarit stated that t
Worthepariiosoof ena
m the assignee) to Ik
prs:-Hehl, b.ad. ,Sei
'^igiiees in trust for
ake tile affidavit reii
: OlmMmd V. Hmltli,
Mvit that the assigi
pittLigthewords "for
1 rail. Mimn v. T,
M was uwdu "forth.
I set forth," ami no
Rm,, "the e.state an,
Imsteadof "thego
fim, sufficient, lb
\ per Robinson, C J
'"ler20Vict. 0.3, ac
!;^Lo;biUofBai;m
iKe : per Burns
BANKRUPTCY AND INSOLVENCY.
382
'111
executing witliin forty .lays, aii.l a roloasu
;f,,ll on fomlition of their gcttiuj; the .hviden.l
" the procucb of tlio goo. s n.sigiUMl with
that thii surphia Hh.ml.l go t.i thi;
//'.
A on the 4th of Jftiiiiary, ISM, coiivoyc.l hiw
lestiiteabaolutoly to .lufcii.hints in c.ii.si.ura
i,f r„ . this tied was not uxfciitu.l \>y
rfcmlantK,' ami was rcgistero.l ..n tho (ith. On
" ,hiIp an nwignnicnt lor cnulit.irn
.U;-
l>nt
«mllv which .leutl was oxccntti.l l>y tin
.I'lits liml othor cre.lit.)r8 of the assij'nor, l.nt
Miiot roiristfrcl, an.l in tliu luttur .loci thi
„t., m which the real estate was e.^nveye.! I,y
were fully ileclarc.l : liehl, the
iiig iniiieaehe.l on the gronn.l of
r'y'tl'iat it was eomiietent t.) those uplDhling
ho show the existence of eonsi.lerations .ither
Ln the Tis. exiiresHcil, although the eimmDn
nls "ftii.l foi" other oonsi(lerati.)ns," were
iittJ.1. Bank <>/ Turuiito v. Ecck.i rt ol., 10
lP. 2S2.
If >< r C c 45, does not reciuirti a n'oncy
tlemtion. XoHl y. Pell,l L. .1. ^. ^.
[Chanil).-l)raiier.
n assifiiimeut for tlic general benelitof ere.li-
■is far as the etfects will go, together with
"acceptance of the trust by the assignees,
) swear they are creditors, is a sullieieiit eoii-
ritiuii to support the assignment. 1 h.
I assignment hy an insolvent f.>r the beuelit
dlitiOT set asi.le, as it eontainod a general
.so hy the creditors, an.l wa.s ma.le t.) avoi.l
aeciitiou about t.) be issueil by .me of them ;
1 the cre.lit.irs generally were declared eiiti-
according to their priority, to the proeee.ls
Le property which lia.l been .sold by the
lec. McDuimld v. riitnam, 7 Chy. ;{»;").
[Sce I. 0, p. 378; 7, p. 37!) ; II, p. 333.
9. Filinij and liejiliioj.
_ asaignment or sale of pcrsoUcal property
jtnist to pay creditors, (or upon other trusts)
iJithiu the statutes requiring registration.
trdy.MilMlclal., n Q. W. &2o.
1.1, that the assignment in this case (the
leulars of which are set out in the rep.)rt)
be eonsiilered as an absolute sale, not a
aige, and therefore did n.it re.juire to be
1 under V2 ^■ict. e. 74. J l>.
mtiidarit stiite.l that the assigninent was not
iior the purpose of enabling the as.iiiimir (in-
|of the assignee) to hol.l the g.xxls against
tors:— Held, bad. Senible, per McLean, J.,
lesiLOiees in trust for creditors cannot )>ro-
►take the attidavit required by 13 14 Vict.
(iliiiMml V. Smitii, 15 Q. 15. 4'21.
idavit that the assignment was ina.le 1 louil
littiiigthcworils "forgood considerati.JU :"
', bad. M(mn v. Thoman, 23 (J. B. 305.
kitwi»sm.ide " for the purposes and trusts
set forth," and not for the purp.)sc of
^, &c,, "the estate and efl'ects" mentioned
, instead of "the goods," as in the sta-
^Hel.l, sufficient. 7b.
L per Robinson, 0. J., and McLean, J.,
niter "20 Vict. c. 3, a copy of an absolute
fcent or bill of sale may be filed, as well
! : per Burns, J., That the origi-
lile.l. Ah t.i pertain goods belong-
assignor, Imt lying in the eustoms
iiiil must be
ing to the
war.'liouse sulijeet t.) .luties, no change of pos-
session having taken place, an.l no eomplianeo
beioL; shewn with tlie formalities reiplired i>y the
(Uist.iins .Act, 10 II Viet. e. 31 : Held, that
HiK'h goo.ls did not ])aHsby the assignment. I'er
Itobinson, C. .1., the statute ry.|Uiring registra-
tion, .Iocs not ajtply t.) siicii goo.ls, as they are
not capabl.! of delivery, .'in.l thi.'y w.mld tiiero-
f.u'.^ hav.^ passe. 1 if the direeti.)naof the t'ustoms
Act had been folhiwe.l. Of the bouseliid.l fur-
niture mentioned in the assignment there had
luiMi n.i change of p.)ssessi.in, an.l the e.iurt ln'ing
left t.i .Iraw the same inferences as ;i jury would :
llel.l, per K.ibinson, (1. .1. That n.itwith-
staniling the registrati.m of the asHigninent, such
furniture .li.l not pass: per Hums, il. -'rii.at it
.li.l 11. it pass, beeanse the assignment was not
)iropei'ly r.'gistere.l by liling a copy only. QuaTC,
per K.iliinson, ('. >!., whether assignments in trust
for ere.lit.irs re.iuire registration ; but held, that
they d.). Sce ''arsra/ldu v. A/nodir, I5Q. 15. 1)2;
//iirrii it III. V. (■uiiniiiix'ial liimk. Kit,*. B. 437.
An assignment registeri'd, with a sejiaratc
.leelarati.ui of trust not registered : — Hehl, in-
vali.l. The tlecision in Arnold v. Robertson, 8
(J. r. 147, aliirme.l. Framr et at. v. UkuUlonc,
11 V,.V. 125.
Where .in assignment for the lienefit of credi-
t.irs is lile.l within the five d.ays allowe.l by l.iw,
it relates back t.) its date, so as to prevent the
eliect .)f an executi.in'plaeed in the sheriiT's hands
within the live days. Mc/)iiicn v. Binvdict, 8 L.
,J. 22. -(!. 0. -Hughes.
See, also, Ncftim v. Kitsdrood, 4 Q. 1?. 271, p.
387 ; noyiiton v. Jioi/il ,t at., 12 C. I'. 334 ; Bank
i>f Moutmi! v. ^fi•. Whirtt)-, 17 C. P. 50G, p. 433.
10. Piinilc Stij)uhUiuii8 with Partkulnr Creditors.
A. guaranteed to B. (a creditor of C. ) certain
comp.isiti.ui notes, which B. was to indorse for
the other cre.litors of t'. B. represented to one
or m.ire of the eredit.)rs, bef.)ro the composition
was agreed t.i, that he (H. ) was to accept a like
eonipositi.in himself, but he ha.l a secret bargain
with i'. that he sh.nil.l be pai.l in full : — Held,
on gr.mnds of public policy, that this secret bar-
gain vitiated the whole transaction, an.l that A.
was not liable to B. on his guarantee. Clarke v.
michrij, II Chy. 499.
Tlio rule in respect of compositions between a
deiit.ir an.l his creditors is, that a creditor can-
not .apiiear to c.nicur in the composition and sign
the deed, and at the same time stipulate for a
separate benelit to himself outside thereof.
H.iwever, where ujion an agreement between a
debtor an.l his ere.lit.irs for an extension of time
for payment of his liabilities, the deed of agree-
ment state.l that it should not " affect any mort-
gage, hypothec, lien, or collateral security held
by any such creditor as security for any of said
debts :" — Hehl, that a creditor whose claim was
fully secure.l by a mortgage on real estate and
other collaterals, was not bound to communicate
that fact to the other creditors at or before exe-
cuting the rleed of extension. Henderson v.
Mimlonald, 20 Chy. 334.
See Smith v. Bit t rich, 8 Q. B. 589, p. 394 ; Ex
p. Detlor, 1 O. S. 278, p. 395 ; Fmokr v. Perrin,
16 C. r. 258, p. 444.
■■v\
■ \
; , ■
t
i, .1 :•
\<tMf
III
HI
%
W-
t ».
; I'
!1[1
P T'
fi !
fl 'III:
I! lis;
383
BANKRUPTCY AND INSOLVENCY.
391
11. Other S/iecial Provmonn.
A debtor, by (lued, ruciting thiit hu had l)e-
como cmbarroHHud by uiidortiiiig and us Hucurity
for othurs, aHaigncd all his pr(>{)tirty, both ruul
and personal, including land worth about i! 1500,
iu trust to pay — first, the parties named in a
Bchodulo ouncxvd, being those to whom ho had
become indebted on his own account, whose
claims did not exceed €110 ; and, secondly, the
other creditors who should execute the assign-
ment. There was no evidence of more than a
few trifling debts, amounting to about € 1 50 ; —
Held, that there was nothing in the nature of
the trusts created for which the deed could be
held void in law ; but the jury having found in
favour of it the court granted a new tnal, consid-
ering that there was much ground for suspecting
that the few direct claims had been made a pre-
tence for tying up all the debtor's property, and
defeating other creditors. Ualkwdt et al. v.
Beildome, 10 Q. li. 203.
A retail merchant assigned all his property
real and personal to a trustee, tiien his clerk on
a salary of £175 a year. The assignment pro-
vided that the assignee, as soon as conveniently
might be, should collect the debts, and sell so
much of the goods as should not be reipiircd to
wind up the business, and afterwards should
sell the lands on such terms as he might think
best. He was authorized to employ the assignor
at not exceeding £250 a year, and to allow liim
to use the household furniture until the other
Eroperty should be exhausted. With the money
e was directed, after i)aying exjienses of the
assignment, salaries, &c., and retaining ten per
cent, for his own trouble, to pay the creditors
ratably. The assignment was executed only by
the assignor and the assignee, who was a credi-
tor, but some other creditors had signified their
assent. The debts to be collected amounted to
82877, and were due by about IfiO debtors, and
the lands formed the most valuable portion of
the assets. On an interpleader issue, the court
being left to draw inferences as a jury : — Held,
that the assignment was fraudulent and void as
against creditors, the chief objection being that
tne sale of the land was postponed till after
collection of the debts. Cornwall v. Qaidt el al.
23 Q. B. 46.
See Mulhollaml v. Hamilton, 10 Chy. 45, p.
378 ; Metcalf v. Keeftr, 8 Chy. 392, p. 385.
agreement that ho would execute an nsnimmeBl
to tnistecH, for the l>enetit of his creditors i,fijl
his real and jjcrsonal estate and effects, (titul
curtain ludicies of life inmirance,) imd' i,u tLl
second day afterwards ho did execute thi'iul
agreed upon, which the trustees ucieiiti-il uM
several of his creditors joined in and t'Xi.cii(j|
the same. Afterwards it was discovered that a
the ilay intervening between the dateiif tlitaorm
ment to assign and the execution of the di^l
assignment, the debtor had sold a valti.iljlt ^f
12. RUjhts, Duties, and Licdiilities of Trmteen.
M. had a contract to supply wood to a raUway
company, for which he was to be paid when it
had been inspected and accepted. While 152
cords were lying in the company's yard for in-
spection he assigned all the wood that belonged
to him, with other property, to the plaintiff for
the benefit of his creditors. He at the same
time mode over his interest in the contract to
the defendant, who completed it, and the com-
pany afterwards by mistake paid defendant for
these 152 cords as well as for what he had him-
self supplied : — Held, that the plaintiff might
recover this sum as money had and received.
Held, also, that defendant could not object that
the assignment to the plaintiff was not pro-
perly filed. Scott V. Kelly, 17 Q. B. 306.
A trader being in insolvent circumstances, at
a meeting of his creditors entered into a written
muul
tion of his stock in trade at a credit mi
over three years, and had accepteil ii8 secimul
the promissory notes of the purcli.wer. TkJ
upon the trustees Jiled a bill seeking tnhaveJ
sale set aside as fraudulent and void as .vm
them : — Held, that the trustees, bting ij A
position of purchasers, coulil cliiiiu only J
rights as the debtor was legally entitled to «tl»
date of the execution of the deed of trust, u
that the sale being binding upon the dubtjr J
those claiming under him, the trnatees wcrtj
entitled to tlie relief prayed, lint, senilJe, tl
this sale would not have been sustuiiiei'
Magjt
a judgment creditor who had sued out execute
McManter v. Clare, 7 Chy, 560.
A mortgagee of unpatented land, after itJ
ments were registered against him, assignni J
his estate for tlie benefit of his creditors. iJ
trustee paid to tlie government out of the i
estate the balance of the purcliise muiiev>
Held, that in respect of the sum so paid, k'li
entitled to priority over the Judgment creiiia
Mclntyre v. Shaw, 12 Chy. 205.
Execution by all the trustees is not ahsolgj
necessary for the validity of an assijji
llaiijht et al. v. Munro, C. P. 462.
The declaration charged that the pliia
having recovered judgment against .K. ii'il
had seized and was about to sell their j«
under a ti. fa. , and in consideration tkii It
plaintiff would withdraw his writ dcfenii
promised to pay the amount. A count i
added for money had and received. It apj«
that A. & Co., l)eing indebted for rent,i
three executions, of which this was one, kd
issued against them for other claims, theyi
an assijjnment to the defendants of
goods, m trust out of tlie procenls to piyi
landlord and these executions, acconliijtii
legal priority, then to pay two prefer
creditors named, and lastly todindethei!,
money among the other creditors executial
assignment. This assignment was execit^l
the defendants, but not by the plaintilf, ill
put in at the trial by the plaintiff, aiidi|
proved that the defendants had received n
under it, but no promise was shewn byi
except what was contained in the idf
which it was recited that the defen(kli|
agreed to pay the claims above mentioril
of the proceeds of the property amm
sufficient : — Held, that the plaintiffs cmJ
recover : that the first count waa not f
the only promise made being that cootii
the deed, which was to pay out of the p
of t'ii> goods; {U:d upon the second count,*
anta, as trustees, could be Uable onljisil
or if at law in a special action on tlii||
Harris v. Buntin etal, 16 Q. R i
F. had a demand against one T.oqd
acceptances of about $20,000. The^
385
Igroed to iran*fe
J worth i'l^hW as a
I tu .'Msi^li, and ii
|tl4,:'iK) of t)ie8e
I tiiil'Ie, l)Ut 8IIIIU! (I
j fciled in boH er Vt
J Botes from tiie plai
IF. siibsi'ijuently c!
I defendant for the I
ItLi'su notes in the
jltAtin^ in the deed
Iplaintilfs as seinri
■Bonoy recovered f
■Igainst him (about
Uefendant's h/mds
IwL'iit recover from
lina received to their
at of the money re(
J) them as security ;
T, vns p.iid geiierallj
bini, then a sum t'oii
I mites to the ivh
fiTtaiii creditor.s, ^
ptbtnr, and after iioti
' every tiling for tl
^i passu, entei'cd i
lorcred hy the assign
iatc or have anytliiij^
"jn subsequently det
J vahil as agaiiLst th(
1 rank as creditors i
(Bstee refusing to con
»t of the trust fum]
( excluded creditors
netit of the deed, tli
i cm the coming in c
,meut into court of tl
mis unapnro]iriated ;
'jJaintitfs' equity so
« the motion with c
Ihy. 333,
lyeithcr an allowance
Ton to the trustees, th
^ under 13 Flizabetli,
Wloyment of the .iss
jBeratinu, renders the i
IP. Metadf v. Keef,
h being accommodat
te amount, obtained fr
leMion, upon which iu
I duly registered. C
P against B., which
^tly on the same
Jkthecoufession. B
illiattels and efiects' «
P«»ring of the aasifi
pe would be holdeii
Mssigned to him, but
''"•tousctheprope
jj just as if no assign
m^". was deprived
I1.ll titltn*,.^^ - •
ived
Jsual reference to th:
PsureoflandsofB j
|ilel)ts, ml in settlim
pil A. prior to (! (
fcort, the court dcclar
T property assigned fo
J',''7f"«epernnttet
|1 t, I ought, to be
17 common fund o
r">dlin,8Chy.421
■ 25
385
^ed to tranHfer
wnrtli«'.',™«f<vl.
lU.'.'lH) 0'
BANKRUPTCY AND INSOLVENCY.
886
to him certain Imnk »Uiv\i \
oaii, ttiseoiirii wliitli lii^ ultuciI
attiTwai'<l« ilciivirud to tlioiii,
I notes fri'iii tiu^ i)laintill!i to uollfct tor tiu'in Uieie.
F sul)9>MiiL'ntly fXcoHti'il nil aHsigiiuieiit to the
Sofomlant for t'iio beiiulit of cre<litor», including
Itiiinc notes in this sclii'duli; iittaclictl to it, Imt
!j, ,i,i,, ill tbu <luo.l that they wuru hehl liy tiiu
IlintilTs as B«^>"-ity f*''; tlifir h.an All the
iBiincy recdvcrcil from 1. ""/';" whole claim
,,g;mi^thini(aho..ta3()()excoi.ter
ISefeudaut's hands: IfcM, that tlie plaiiititls
iniL'lit recover from the defenilant, as money had
O received t(i their use, the am.mnt of their hian
Dt (if the nioiicy received on the notes delivered
li) them as security ; and if the amount paid hy
I m:i8 iiaid generally on F. 'a whole claim against
kiiii theu a siiui founded on the i)roi)ortion oi'
mcli notes to the whole of T. 'a debt. Lir el al.
WuMd,; '2-i Q. B. 15.
Ccrt.iin creditors, with the concurrence of the
Ijebtori and after notice of an assignment by him
every tiling fi>'' the benefit of his creditors
jri wm», entered up judgment, seized goods
OvereJ by the assi^'iinielit, and refused to exe-
Btc or have anything to do with it. It having
I subsequently decided that the asaignnient
„v.ilid as against their execution, they desired
Traiik as creditors under the deed, and the
ustee refusing to consent, and having divided
i8t of the trust funds amongst the creditors,
excluded cre<lit()rs filed a bill to have the
Bctit of the deed, the debtor being willing ;
I (111 the coming in of the answers moved for
ment iuto court of the balance in the trustees'
ills unappropriated ; but the court considered
( plaintifls' equity so doubtful, that they re-
Kd the motion with costs. McKay v. Fa fish,
hy. 333.
Ijeithcr an allowance of a reasonable reuiunc-
bii to the trustees, though they may be credi-
j, uuder 13 Elizabeth, nor a provision for the
BJojinent of the assignor at a reasonable re-
aeration, renders the deed void under 22 Vict.
, Mdmlf V. A'('(/('c, 8 Chy. 392.
., being accommodation endorser for B. to a
e amount, obtained from him, as indemnity, a
lession, upon which judgment was entered up
Iduly registered. C. also recovered a judg-
it against B., which was registered subse-
jltly on the same day, contemporaneously
J tie confession. B. also assigned to A. all
phattels and effects, and all debts due him.
jiearing of the assignment C. notified A.
jhe would be holden accountable for what
Assigned to him, but A. nevertheless per-
T^l B. to use the property, and to receive the
f, just as if no assignment had been made,
|el)y C. was deprived of any lienefit. On
isual reference to the master in a suit for
fiosHre of lands of B. , A. and C. both proved
[ik'lits, and in settling priorities the master
tteil A. prior to CI. On appeal by C. from
Iport, the court declared A. to be a trustee
i property assigned for C. , and that having
I negliceuce pfirmitted the property to be-
ilost, A. ought to be postponed as to the
1 the common fund of botii. Huntingdon
|nBroci/in, 8 Chy. 421.
25
U'iierc a bill was tiled by one of several cretH-
tors of a d( litiir, wlm liad a.ssigiicd bin testate for
r"""i!nii""aiid afterwards dtdivcred to tliem, the biiK'lit of hin cri'ditors, agaiiLst the debtor
'■■ these notes, all of wliich were nego- | and tlic tnistccH, seeking Hnaecuuiit of the estate
IJll' Imt some only were endorsed by V, T. i and payment, without making any other creditor
I V' I'iu bower t'anatla, and K obtaineil these j a party, the court overruled an objection for
I liili'i ' , . i..;..t;iVo f.. ..,.1l....f C.i.f Im.i.i flu.i-.. want of parties, on the ground of the absence
of an V such creditor. Wuail \. Itrill, !M 'liy. 78.
See, also, 11'///;- v. MrKinj, 20l'iiy. 421.
An assiLrnnu'iit having been made to truHtees
for the beiietit of creditors, a bill was filed
against the assignor and his trustees by a privi-
leged linn of creditors, for an account of the
trust estate, and ]iayinent of their claim ; in
answer to which the defendants alleged that
certain bills and notes had been taken in i>ay-
iiiont of their demand, not as collateral security
only. The evidence 4111 this point was contra-
dictory, and the court leferreil it to the master
to t.ike an account tif the claim of the jdaintitta
against tlu! estate, anil to en(|uire as to the deal-
ings of the trustees under the assignment, lb.
'rrustecs made payments to one class of credi-
tors over whom another class had priority, with-
out providing fm* the prior class ; and a suit for
the adniinistratioii of the trust estate having
been instituted, the creditors paid were orileroil
to repay, and the unpaid creditors were held
entitled to a lieu on the trust funds in cimrt in
priority to the claims of the trustees, and all
subse(|uent creditors, for debt and costs. Wvud
v. lintt, 14 ('by. 72.
Where a debtor assigned his estate to trustees
on trust to sell for the benelit of creditors ; and
the trustees were guilty of delay in selling, and
nf other misconduct, it was held that the e(mrt
had jurisdiction at the suit of a creditor to exe-
cute the trusts of a deed. (Jiii'lifc Bank v. Snure,
1(5 Chy. (181.
The idaintifTs assigned all their effects to
defendant, to sell the same and pay all their
creditors, a list of whom was handed to defend-
ant on the executicm of the deed of trust.
Subseiiuently the plaintiffs furnished another
schedule of their liabilities, embracing several
persons not mentioned in the original list. De-
fendant had paid several of those first named,
and in doing so had expended a sum greater
than he bad cidlccted, and had become answer-
able for more than the residue of the estate
would realize. He refused to recognize the
claims of the additional parties in the second list,
and thereupon the jdaiiitifis filed a bill praying
an account of the defendant's dealings with the
estate and for an execution of the trusts of the
deed ; alleging that they had not any estate
other than that assigned to defendant, and that
they were insolvent and personally unable to pay
anything. The court, in view of the facts that
no fraud or improper conduct wus alleged, that
even if the whole estate were realized, defen-
dant woulil still be a loser, that all the defen-
dant had done, up to a date shortly before the
filing of the bill, had been approved of by the
plaintiffs, and that he had received but a small
sum since, and not enough to repay himself, —
refused the relief prayed, and dismissed the bill
with costs. In such a case the defendant sought
to shew that the creditors mentioned in ithe ongi-
nal schedule were the only ones he had agreed
to pay, and that such was the agreement between
bimaelf and the plamti£fs on nis acceptance of
Ai
! m
887
BANKRUPTCY AND INSOLVENCY.
38S
u
i ?
I";l 1
«' I
It :!^ '
tlio IriiHt ; -IFcld, that ho wiiH nitt at lilxTty tii
•lii'W this, iiiit haviii)^' iimUimI t'nr n rcfnriiiiitioii of
tht! ileuil (if tniHt ; unci that even if lio liiwl, thi!
ahHcnco lit' the! |)iirtio» Hdiij^ht to \>.i fxcludt'd
from thii luiii'litHof' thii trunt, wumhii iiiHii[(i'nil)K'
barriur to thu tU^fcniliiiit licing iicriiiittod to ito
■o. .'AiUill V. IhitdtH, '10 ( 'l«y. 70.
Sou lhin-i>ir.i V. (liitiH, H ('. r. I-JI, 1). 374;
Is'alhiiKtl liiiiil; ()/' A/liiiiii/ V. Mauri , '1\ cfiy. '.•(>!•,
n, W.n ; <loir ll'uiik v. SiiUmlotnl, I L. J. N. S.
Ifil), II. 37.'{ ; i'\.i:'<iuirial Bunk \. WiUoHf 11 C
P. 581. p. 388.
13. Jiect{ficnt'ton uf Mktitke in,
Whuii ftduhtor conveyed hiHliiiidH to a trustee
for liis creditors, and ii Hchedido annexed pur-
I)orted to contain the wliole thereof, hut it whh
afterwards discovered tliat, either designedly or
by mistake, some of the lands had been omitted :
— Held, that a hill would lie to correct the
schedule, on the groiiml of fr.iud or mistake.
Oillvpie V. Oroirr, 3 C.'hy. Ti.'iS.
A trader assigned his estate and cfTccts to
trustees for his creditors, some of whom were
declared to have preferred claims, and to he paid
in full. 'I'he claim of one was stated hy the
debtor to bo " a,i>00, or thereabouts," no ac-
count having been settled between the debtor
and the creditor for a long time ; aiul this sum
was stated in the schedule as the amount, and
the several creditors executed the assignment.
Theereditor afterwards, on balancing his account,
ascertained that his claim was t;."),0(J2, which the
trustees refused to p.ay ; whereupon the cre<litor
tiled a bill to reform the deed, by introducing
this sum as his claim, on tlie ground that the
words "or thereabouts, " were sutHcient to in-
clude it. The court dismissed the bill with costs.
C/iiipin v. Cliirki , 7 C'hy. 7r>.
See Liddell v. Deacon, 20 Chy. 70, supra.
tion. Thoplaintiirs rejdied, oncc|uitablogriimi(ij
that tlie prii]ierty assigned was not ei|ii,il to th'
whole' of .1. (', 's indehtfdnesM to plaiutill':*, aiJ
that iiiaintill's accepted the same on aci'mlntii
such indelitcilness with defendant's assent, aiiii
that the proceeds of such estate are still ni,,,|j.
cal)le to pay a portion of the causes of act',,
defendant, to wit, JtilOO, with n ii„]|,
as to that portion ; and "lefeinlimt |,f,^
14. Other Cases.
When property is conveyeil in trust to pay
debts, it cannot be considered as a fraudulent
conveyance against creditors not included with
the creditors for whom the trust is declared.
Doe d. LaurasoH v. T/ic Canada Conipani/, 6 O.
S. 428.
The second clause of the Registry Aet, 35
Geo. Ill,, c. 5, did not a])ply to deeds given to
trustees for the benefit of creditors. A eeson v.
EuMwood, 4 Q. B. 271.
Under what circumstances an assignment to
one or more creditors for themselves and others,
may be upheld against another creditor, who has
seized the same goods in execution upon a judg-
ment confessed to him before the assignment.
Parish v. McKay, 5 Q. B. 4G1.
Declaration upon four bills of exchange, for
£500 each, drawn by 11. H. & Co. , upon one J.
C, payable to and endorsed by defendant. De-
fendant pleaded, 1. Payment. 2. An assignment
made by J. C. to one T. P. , for the benetit of
his creditors, with plaintiffs' assent and concur-
rence, and that T. P. , with the consent of J. C.
and his other creditors, conveyed and assigned
certain property to the plaintiffs, and plaintiffs
accepted such conveyance and assignment in full
satisfaction of the causes of action in the declara-
against
pro.seiju
mised to jiay the residue of defendant's iiu|,.i,,
eilness to plaintiH'soverand above the saiil i'.'iijij
Ifpoii denmrrer, held, that the executing nf ,,.
assignment l)y the holder of a bill, without j
sj)eeial reservation of rights as to suretii's, dj,.
eliarges them ; and that the jileadings Hliew'efj Jt
was the plaintiffs' duty dulv to adniinistit th
assets of .1. L'., in their hands to he apiijicd u,,'
the bills declared on, and until they hail l'^^
tliat no cause of action accrued against the df.
fendant. For all that was shewn by the iiltai].
iiigs, the assets in plaintiffs' hands might covif
the i)ills sued upon, and therefore the replication
waabad. CviuiHvrciulIiunlnjj'CanuUuv ir;;.!,,,
lie. P. 581.
Held, that one co-partner in trade uanimt
without the exprui* conuent of hi» t()i)iirtii|.r
execute a deed disposing of all the stodin'
trade, effects, and assets of the linn to ,i trustee
to dispose of the same for the general htiittitoi
the creditors of the partnership. Cumtron it
al. V. Stevenson, 12 C. 1'. 38l>.
A partner of a mercantile firm hc.s no ]inwer,
either during the existence or after tlio liissiJi!
tion of a partnershiji, to make an assignment of
the property and ettects of the tirni to a triisto?
for the benefit of creditors. SleniDiiiii v. Bmni
1) L. J. 110. — Chy. Chamb. ■— Spragge.
Two assignments v/ero made ))y ,1. and r
P. on the 1st and 5th of June, ISO,*), tn tie
plaintiff, a creditor, for the benetit of creditors,
On the Oth .June, 18()5, defendant, another ere
ditor of J. and C. P., obtained judgment againit
them, and placed a li. fa. in the sherilf 's liaMs,
and im the Ist July, 18()5, he also caused a itr;
of attachment, under the Insolvent Act of ISH,
to be issued against tliem. The gomls .issijij
to plaintiff were seized under the ti. fa. :-Hili
that the assignments in this case, which m
fully set out in the report, not heuig m.iJe in
accordance with the Insolvent Act, wereaeUo
insolvency and could not be supported, .iiid tk
they were by the issue of the att;ieliment ,W
the appointment of an official assignee (lisiilated,
and rendered void as to defendaiit'.s execution:
— Held, also, A. Wilson, J., tliss., that theyw
also void under C S. U. C. c. 2t). Tkni'i
Torrance, l(j C. P. 445; affirmed on aiipeiillj j
C. P. 2!}. '
A debtor being in difficulties assigned all tii I
property to a creditor, who agreed to pay a coni'
position of forty cents in the dollar witkin 1 1
year. This had been paid, except to (lefenJial,
who refused to accept, and issued execution ^
On an interpleader between the assignee aiiJ tif I
defendant, to try the title to the goods assigned j
the jury having found the transaction honii liiic
— Held, affirming the judgment of the Connij
Court, that such an assignment was not avoi' '
by the Insolvent Act of 1864, s, 8, for that tit I
statute applies only where proceedings are takes
and as against a person claiming under it i-Heli j
also, that the assignment was not invalid i
389
c. a. V. c. 0. 2tf,
K .1:'8.
Two partners,
Mni«iied tlii'ir ji
gctkr, for tile bei
criiiitors, piri p.u
M't, afterwards a
luiije these assign)
[lUt the seoirate ci
with the Joint cri
}ir»|)erty and of (
other partner, was
but it ajijieariiig
ni'p.irito estates m
eijiiahty uompiainci
jiiint ereditors, the
McDuiialil V. JfcCo
Where a trust da
contains no release i
quently sue the set
not thcreliy iireelmli
III the trust (leed, ,
I'hamb, 310.— Mowi
The rule that the \
fition must he strictl
ami acted on, I/iU
Aa A general rule, ,
fit of creditors will
of insolvency tind ei
I England, \vhero, tli
of a testator tiled a hi
I tvro of the leg.'vtees, c
j >nd alleging that the
the death of the testf
ment for the benetit
le was insolvent, the
I injunction and receive
j circumstances, grantei
I Kceiver, notwithstaiK
I »ny iiiidadministration
I Insolvency was the r
I Msigiunent of his esta
[Chy, 443,
In a suit for the adi
I (State under an assij
loreditors, creditors v,
[Cree may reho.ir the <
jpercoursewherethea
J le effected in that w;i
\mholl(md V. Ilami/to
A bill was tiled by J
I tan registered judgme
IjMignefc of A, The
IJenelit of creditors, bu
l»y creditor was party
Iment; and the assignee
■»«i< ants filed, that his
Jfor A. :-Held, thai
KsinstAwasadmissib
f (Donald V. Wright.
I Interest held to be
r «™f *'"« of dra-
p the date untU paid
m V, Maukon, 3 C
P trust was created f(
■"rats, in considerat
'•«l'tor;aUthecrec
B. accepted from two
n« responsible for th
1
w
389
BANKRUPTCY AND INSOLVENCY.
c. 2fl, n. 18. S.jiiirc V. i\'iill, 20 i)
390
C S. U. C,
b! .T.'8.
Two pftrtiiiTH, lii'foit' the IiiHolvi'iii'y Act,
aisii/ned tln'ir juiiit iiinl Hi'|iar;itt: cutatcH tn-
L'cthcr, for tln^ luiui'lit nf tlicir joint ixud H«|iiir;iti^
crnliti'irii, l>'ri p.is""- An ii«ni;,'iii>t' iiihUt tliu
;nt, afti'ivMinls apiHiintcd, (ili'd a Mil to Hut
isJle thcui! asuigiiiiiiJiiti^. <>" tlitt >,'ripiinil that, tu
iiuttli'' siiiJivrato criHlitors of oai'li on an ('(|nality
with tlie J"i"' cruilitorn in ri.miit;ut of tho joint
liriiiwrty am' "f "'" He(iaratt) iii-o|>LTty of tin'
other piirtner, was n fraud on tho joint I'lrditorx.
But it appuaring by evidoncu that liotli tins
^•mnto catatcH wuro solvent, and tiiat the
»^1"V.'. . ...i..:..„.i ..t ,.,., 1 f t.. thu
j itit nrilllll.lll n. LllU lull T» tfc'T 1 I ir»in,.Ti.,'» iTivt* ^y^lStS.
^ wero solvent, and
Mj'ility complained of wa^ an advantaKo to
ii'iiit crcditora, tho hill wa»di»nii«.s(;d with ot:
.\I(IhMtdv. .)kCallum, llChy. 4(i!».
Wheri) a trust doeil for tho bonefit of creditors
contains no release clause, ureilitors who sulise-
quentlyaiiu the settler on other securitiea are
lint thcrvtiy iirecluded from claiming tiie benefit
(if tho trust deed. Andtrw.i v. MmUmh, 1 (Jhy.
Chamb. 31t).— Mowat.
The rule that the terms of a deed of compo-
lition must bo strictly complied with, considere<l
ami acted on. IM v. IMhi-rJ'ord, 9 Chy. U07.
.\9 a general rule, an assignment for the bene-
fit of creditors will be taken as a ileelaration
of innolvency and ociuivalcnt to banknip' "in
England. Where, therefore, some of the li ■■> ;een
of a testator tiled a bill against his exeeuto. md
tffo of tho legatees, charging maladministration,
»nd alleging that tho executor, subseijuentlj^ to
the ileafli of tlio testator, had made an assign-
ment for the bonetit of his creditors, and that
he was insolvent, the court, upon motion for an
i injunction and receiver before answer, under the
circumstances, granted an interim injunction anil
Kceiver, notwithstanding the executor denied
I my maladministration of the estate, or that his
Insolvency wm the reason for his making tho
1 Msigmnent of his estate. Harruld v. WallU, 9
I Chy. 443.
In a suit for tho administration of a debtor's
I estate under an assignment for the benefit of
I creditors, creditors who come in under a de-
I cree may rehear the cause, and this is tho pro-
I per course where the alteration is such as might
lie effected in that way by a party to thu cause.
\mkUand v. IlamiUon, 12 Chy. 413.
A bill was filed by A. and B. to enforce cer-
Ifcdn registered judgments. B.'s interest was as
llssignee of A. The assignment was for the
ll^nelit of creditors, but it did not appear tliiit
I|ty creditor was party or privy to the assign-
lient ; and the assignee had sworn, in one of the
jlffiilants filed, that his only interest was as trus-
' 8 for A. :— Held, that any evidence admissible
gainst A. was admissible against both jjlaiiitiffs.
tcdomld V. Wriijht. 12 Ghy. 552.
I Interest held to be allowable on a preferred
JBbt consisting of drafts and promissory notes
Kim the date until paid, and pending suit. City
'oniv. MauhoH, S Chy. Chamb. 334.— Boyd,
taster.
I A trust was created for the benefit of creditors
rata, in consideration of their discharging
B debtor ; all the creditors, except the plain-
Ifs, accepted from two creditors who had be-
ne responsible for the fidelity of the trustee,
twenty live per cent, of their demands in full ; tho
estate yielded MHiri) : Melil, that the iditintilfs
iiail no right to the whole of the ditruruncu,
Hithlii-ii, V. Tliiniiin, ir. Ciiy. 119.
Where a bill is tiled to impeach a eonveyanee to
the trustees for tllc^ beni'tit of creditors, whether
Nueli an assif^'iiinent is or is not in insidveiiey,
the trustees are necessary parties ; tlu'reforu
where tho cause of demurrer assigiieil was, th.at
one (!., to wiiom il was alleged in the liill that
M. bad conveyed his estate and eU'ects for tho
beiiclit of his cnditorM, was not made a party,
the court allowed the (lenuirrer. W'ulk v, J/c-
Knii, 20 Chy. 421.
Quiere, whether the bill was not also demur-
rable, on tho ground that it did not distinctly
shew the rtdation of trustee and cestui ipie trust
between M. and his ereilitiu's to have l)een
created Ity the conveyance to C, or that such
conveyance was anything more than a deed of
manageincnt. Il>.
See Pai-MM V. Crahl,, 31 Q. B. 434.
II. COMPO.SITIOV.
A general agreement of the defendant's credi-
tors to accept a composition of lOs. as pleaded :
— Held, not proved l)y evidence that the defend-
ant, having become ins<dvcnt, had paid to some
of his creditors one rate in the pound, and to
other creditors another rate. ForMer v. Ih'di'n et
((/., 5Q. B. .599.
Action on three notes. Plea to the further
maintenance of the action, a eomjiosition with
the plaiiititV and creditors, whereby it was agreed
by tlie defendants with the plaintiff and their
other creditors, tliat after assigning a certain
building contr.ict to tho liank of Uj)per Canada,
in discharge of the bank's claim against them,
defendants were to convey all their other estate,
etl'ccts and contracts, to two i)ersons in trust for
the plaintiff and the other creditors, &e. Tho
assignment, as completed after tho action, was
executed by many creditors, but not by the
pl.aintiff. Tho subject matter assigned appeared
to have been goods, ch.attels, and chosus in action,
far exceeding i 10 in value, and yet at the time
of the eomposition pleaded no part was delivered
or accepted, no earnest paid, nor jjart payment
maile ; nor was the .agreement or composition
pleaded in writing ; and moreover tho Bank of
Upper Canada, a corporation, one of the alleged
parties to the agreement, did not appear to have
contracted under their se.al : — Held, upon these
grounds, that the plea was not supported. Brun-
skHlv. Metrcdfct al., 3 C. P. 143.
Declaration, that tho defendants undertook to
give their promissory notes p.iy.able at certain
periods, for 10s. in the pound of the debts due by
one F. to such of his creditors as should within
two months after the date of the deed express
their consent to accept such composition. The
5th plea alleged th.it the plaintiffs did not
demand of defend.ants to execute iind deliver
the said note : — Held, that defendants not being
bound to anybody by name, and it not being
averred that defendants had notice that these
plaintiffs were, creditors, or that as such they had
consented to accept the composition, or what
the debts of F. were, a demand was necessary ;
and the plea was therefore held good. Matthexo-
son V. Henderson et at, 13 0. P. 96.
I
' t;
! V
+ -.^f
k
391
BANKRUPTCY AND INSOLVENCY.
393
Semble, that a creditor under a composition
deed, either under the insolvent act or otherwise,
cannot give a general release and subscribe for a
particular sum, as being apparently his wliole
claim, aiul afterwards ailvance other demands as
not included in this discharge, for this wouhl be
a fraud on the other creditors. Fowler v. Pervin
etal., 16 C. r. 358.
A trust was created for the benefit of creditors
pro rata, in consideration of their discliarging
the debtor ; all the creditors, except the plain-
tiflFs, accepted from two creditors who had be-
come responsible for the fidelity of the trustee,
twenty-five per cent, of their (\eniand8 in full.
Tlie estate yielded more : — Held, that the plain-
tiffs had no right to the whole of the difference.
Baldtvinv. TTwmas, 15 Chy. 119.
Where ,T. H., R. M., and F. H. had agreed to
give their promissory notes to the creditors of
E. F. (who had already made an assignment for
their benefit) in composition for the debts of
E. F., at 10s. in the £, and for the benciit of
the creditors had executed a deed to that effect,
but in the expectation and faith that ]•]. F. wouhl
receive back from the assignees one-half of the
stock of goods assigned by liim, and that C.
would receive the other half, he and E. V. thus
bee 'uing co-partners in the goods ; and the goods
were afterwards all delivered to 0. with the
knowledge and assent of E. F. : — Held, that the
deed of J. H., R. M., and F. H. could not be
avoided on the ground of fraud because there
was subaeiiuently a partial failure in the arrange-
ment on the faith of which they had made the
deed. Matthewson v. Hendevson, 15 C. P. 90.
If a deed be obtained by fraud, a person inno-
cently taking under it for valuable consideration
will be protected, lb.
Where a debtor, in order to eflfect a compro-
mise with his creditors, offered a mortgage on
certain prf)perty, which property he represented
as belonging to another person who desired to
assist him, and the creditors accepted the offer
and took the mortgage, but afterwards discovered
that before it was executed the debtor had
obtained a c.nvoynnce of the property to him-
self : — Held, that suuh coivvcy.iiife was under
tlie circumstances subject to the mortgage.
Frager v. Sutherland, 2 Chy. 442.
A trader in insolvent circumstances made an
assignment of his propei'ty to several of his
principal creditors, in trust, for the benefit of his
creditors generally. Afterwards it was agreed
that the creditors should accept twenty per cent,
of their demand, and discharge the debtor,
whereupon the plaintiffs and other creditors
executed a deed to carry out this agreement.
Before payment of the composition, however,
the trustees re-assigned the property to the
debtor on his undertaking to p.ay tlie several
creditors the amount of their claims, which he
did pay to the trustees, but failed to pay to the
plaintiffs ;— Held, that the trustees were liable
to make good to the plaintiffs ilie sum coming to
them, if the property which had been assigned
to them by the debtor was suiiicient to realize
the amount of the composition agreed on ; and
ac to this, if desired by the trustees, an inquiry
by the master was directed. T'he National Bank
of Albany v. Moore, 21 Chy. 269.
See In re McRae, 15 Chy. 408, p. 426 ; Clarke
V. Ritchey, 11 Chy. 499, p. 372.
III. Bankruptcy under 7 Vict. c. 10,
[The Banh-upt Act, 7 Virf. c. W, nndn v},v\
the, cusen lieluw were decided, wan ruiiemicd hu 'i
Vict. c. 30, and continued for certain iniriHiiiH a
the end of the session next after 1st Jantturu lio
See 31 Vict. c. '19, D. ; 31 Vict. c. 17, (>.] ' "'
1. Actions and Proceedings.
(a) By Bankrupt or Assignee.
\ATiere a plaintiff commences an action, and
pending the proceedings becomes a li.inknipt,
he may, under 7 Vict. c. 10, ss. 31 and .32, con-
tinue the suit in his own name, uiilesa tie
assignees intervene. Ireland v. Wagstatfetal i
Q. B. 231. '
See Hughes v. Newcastle District ilutual Firi
Insurance Co., 8 Q. B. 315, p. 394.
(b) Against Bankrupt.
Though a certificate of bankruptcy be no (fe.
charge till confirmed, an interlocutory juilgmeni I
entered before confii-mation will be set asiiie to
allow the bankrupt to plead his certificate, or
the court will relieve him by staying the crecn-
tion of the fi. fa. , on a proper application aft«
judgtiient and execution issued. Commemi
Ba,ik V. Culross et al., 3 Q. B. 17C.
A plea, " that Jifter the making of the promis,
and after the action had accrued, defendant I
became a bankrupt :" — Held, good m special
demurrer. Short v. McMullen, 6 Q. B, 407.
Held, (Draper, J., diss.) that the certiticati j
obtained by a bankrupt under the ordinance o
Lower Canada, 2 Vict. (3), c. 36, prior to the'.
Vict. c. 10, might be given in evidence mh |
the general form of plea allowed by section W
Phillips V. Masson el al., 9 Q. B. 20.
So might fraud by the bankrupt in obtainiij
his certificate. lb.
2. Operation of Executions.
The seizure and levy in execution nnder ' j
Vict. c. )0. s. 37., to avoid the efi'ect ol' aeon-
mission subsequeuCIy jaisned, ine.'vii only tin j
seizure, .and not the actu.il levyuigoiiu s".;'
Hales V. Tracy, 1 Q. B. 541.
If a seizure be made without notice of apmij
act of bankruptcy, the sheriff may proceed id (
sell, and pay the proceeds to the exocut!i)n»i-[
iter, though the commission be placed in 1
hands before sale. Maulson v. CommtU\
Bank, 2 Q. B. 338.
Where a party had confessed judgment t«i|
bank before the bankrupt law, withthenndirl
standing that i*- would not be enforced on piH
meiit of a cert.ain sum every fortnight; andsl
was agreed, after several pajnnents, that tJtJ
confession should stand also as a security f»|
notes to be discounted for the part j; and
ceedings having been threatened by other ewil
tors, the bank issued execution ivnd sold :-HeH J
that the assignees of the bankrupt, on a t«l
mission issued after the seizure, but before ikl
sale, could not recover the proceeds in »l
action for mouey had and received agaiBit"!
bank. lb.
vrAi
1393
BANKRUPTCY AND INSOLVENCY.
394
nn4er \
;t oi a COB-
only tin I
ceof afWil
proceed mi I
icution »!■ I
[aeccl in kill
Co»nii(rMi|
I A fi fa- placed in the sherifif 'a hands before the
commission was sealed, but oh Ihr samr </«// on
I hieh it wM completed and dehvered to the
[^ ritf has priority over the commiasion. link-
jiiMiH v! Jttrvis, 3 Q. B. 280.
I Ouicre what course is the sherifif to pursue
lonon' an' execution against the goods of one of
Iz: partners under the circumstancca of one
Ifcfiinc a bankrupt, and the other not. O'Xelll v.
■B/M4Q.B.294.
A notice to the execution creditor in general
terms before the sheriff coukl have levied, with-
■t specifying any particular act of bankruptcy,
, sutHcient to protect the debtor's property for
Jlhis creditors. French v. Kin<j.imdl, 5 Q. B. 30.
Notice of a declaration of insolvency having
fceen tiled, is notice of an act of l)ankruptcy
hiii the time of its filing, provided a commis-
■fcn shall issue upon it within two months, and
lut the execution creditor or his attorney was
tare of the fact before suing out execution. 76.
Where defendant had obtained his certificate
Idischaroe after judgment and before execution,
L execution and all subseijuent proceedings
Jtrc set aside with costs. Harris v. Jiunnill, 2
I E 103.— y. C— Richards.
3. Fmmhlent Preferences.
[a cognovit given, payable immediately, for a
it debt, is nut a voluntary or fraudulent pro-
tinL' of' the debtor's goods to be taken in exe-
Jion in contemplation of bankruptcy, within
imeaningof 7 Viet. c. 10. Beekman v. Work-
ie(«/., IQ. B. 531.
[a cognovit given in contemplation of bank-
tcy, and to give defendant a preference, is a
nrit'v within sec. 19, and therefore void.
oK^.iVry, 7Q. B. 24.
Fliere a cogno\'it has been given by a bank-
t in fraud of the bankruptcy law, and it is
retnre, with all steps taken under it, void,
-I a?signee of tlio bankrupt, in bringing an
■on against the sheriff, must be looked upon
(imtending for the interest of the crediv ors,
1 nut merely as representing the person or
■^i of the bankrupt ; they therefore will not
|esun,[,«l, .".c the l)ankrupt might, from dis-
; the validity of the cognovit itud sii}>sp-
proceedings on the ground of fraud.
lBn\.Moodie, 7 Q. B. 301.
assignment made bonA fide by a person
t to become a bankrupt to a creditor thirty
il before commission issued, is good, if made
Kilt ine creditor's knowledge of any act of
nptcy, or that bankruptcy was in contem-
irmoiir v. Phillips, 4 Q. B. 152.
Iver by the assignees of a bankrupt. Plea,
jing nnder a judgment and execution
It the bankrupt before bankruptcy. Rep-
Bn : that the judgment was recovered on a
Bion of judgment given " in contemplation
nptcy, and for the purpose of giving
several creditors a preference, and with
fctent to delay and defeat ooher creditors,"
httlficient, without adding that it was given
T » month of the commission. Brent v.
I6Q.B.536.
Deed of assignment by bankrupt to one of his
creditors, with a right of preference — Annexing
of schedule to deed — Assignment on the face of
the instrument of all bankrupt's estate to one
creditor, an act of bankruptcy per se. Qufere,
anything short >if this such an act. Kerr v.
Coleman, 6 Q. B. 218.
Construction of our Bankruptcy Act 7 Vict,
c. 10, clauses 2 and 10, also of proviso to
elause 19, and also of clauses 37 and 38, as to
the necessity the act imposes upon the assignee
of a bankrupt seeking to invalidate an assign-
ment to a particular creditor, to prove that the
assignment was voluntary, besides being made
in contemplation of bankruptcy, with the know-
ledge of the creditor, and for the purpose of a
preference. Ih.
Semble, that a jury finding "that the assign-
ment was executed in contemplation of bank-
ruptcy, and that defendant knew when he took
it that the other creditors would not be paid
their debts," is sufficient to satisfy the Act, and
avoids the assignment, without any direction or
finding upon the assignment being voluntary.
Sullivan, J. diss. Ih.
Where a bankrupt, thirty days before the
commission, bon.1 fide assigned part of his inter-
est in a bond to A. B. (viz., to £400 out of £500) :
— Held, that the bankrupt, ivnd not his assignee,
should sue for the interest A. B. had in the
bond. Huqhes v. Newcastle District Mutual Fire
Ins. Co., 8 Q. B. 315.
A commission of bankruptcy issued against
J. V. , one of two joint makers of a promissory
note to plaintiff. J. V. desired to compromise
with his creditors, and the plaintiff agreed to
this, provided the residue of the note was secured
to him. Defendant gave plaintiff a bond to
secure it on real estate : — Held, that the bond
was void. Smith v. Dittrich, 8 Q. B. 589.
i. Other Cases.
K. having become a bankrupt, and passed the
several examinations required by the 7 Vict. c.
10, before the Judge of the Niagara District
Court, and obtained from the commissioner his
certificate, a petition was presented to the vice-
chancdllor by several of his creditors, pra3ring a
stiiy of the certificate, on grounds of fraud, &c. :
— Held, that the commissioner of bankrupts is
the only person who can exercise any discretion
in granting or refusing the ccrtifieaie to the
l)aiikrupt, under the statute. Iv re Kissock, 1
O. S. 225.— J.imesou.
A pai-ty, being a creditor of a trader, served
the notice t)f demand required to be served
on the deV)tor, and obtained a summons of the
commissioner, calling upon the debtor to appear
and either admit or deny the claim of the credi-
tor, according to the Bankrupt Act ; and upon
being servecl with such summons the debtor
appeared and asked for further time, which
was granted, after which, and before the time
allowed for the party again appearing, the cred-
itor settled with the trader, talung certain secu-
rities for his debt j the costs of the proceedings
the trader promised to pay, but afterwards
refused. The creditor thereupon applied to the
commissioner (under sec. 71 of the act,) for an
order upon the debtor to pay the costp, which
Q\
■k
395
BANKRUPTCY AND INSOLVENCY,
3J!
I, li-
the commissioner refused, and upon appeal the
refusal was affirmed. In re Wallace, 2 O. S. 233.
'Wliere a tr.ider h.ad recjuosted one of his cred-
itors to sue out a couiniission of bankruptcy
against sibh trader, and upon tlio promise of
being afterwards paid his debt in full the
creditor sued out the comnii8si<m, and the judge
below had refused to grant the bankrujit his
certificate, the court of review refuseil to inter-
fere. Ex parte Detlor, 1 O. S. 278.
Commission of baTikruptcy superseded on
application to the vice-chancellor in the first
instance, and not by way of appeal. In re
Merrittetnl., 1 O. S. 283.
Act of bankruptcy must bo stated in affidavits
filed with judge. Jn re Gillespie, 2 O. S. 2.
A party suing out a commission of bank-
ruptcy, under 7 Viet. c. 10, must prove before
the judge or commissionei', not only the act of
bankruptcy, but also the trading. Such evidence
cannot be afterwards received to ujiliold a com-
mission issued without the proof liaving been
given. Jn re Base, 2 O. S. 14.
Under 7 Vist. c. 10, s. 74, a certificate of dis-
charge iinder f'o ordinance passed in Lower
Canada, is a diacliargc from debts in Upper
Canada which were provable under the Lower
Canada commission. McDonald et al. \. Dicken-
son, 1 Q. B. If).
Under the 7Gth clause of our Bankruptcy Act,
the 108th section of the British statute is not
in force in Upper Canada. Maitlson v. Commer-
cial Bank; 2 Q. B. 338.
The effect of a legal assignment to trustees for
creditors is, that it diverts the beneficial interest
of the property assigned from the assignor, and
subsequent assignees of his estate under the
bankrupt laws do not take it as his assignees, for
they acquire a legal interest in such property
only as can be applied to tlie payment of his
creditors generally under the bankrupt laws.
Ander.^on et al. v. Gamble, 8 Q. B. 437.
Where the wife of a l)ankrupt in Lower Can-
ada had a remainder in lands in L'pper Canada,
expectant on tlie death of lier niotlier : — Held,
that there was no interest wliich could vest in
the assignees, and that his not disclosing such
interest was not fraudulent. Phillips v. Mansim
et al.,9 Q. B. 20.
Covenant to indemnify " generally and with-
out exception" against a charter party which
defendants had assumed : — Held, iind ;r the cir-
cumstances of this case not to be discharged by
defendant's bankruptcy and certificate. Jarvis
V. Walker, 9 Q. B. 13(5.
Assumpsit by assignees of a bankrupt on a note
made by defendant, payable to one W. R. F. ,
and endorsed by him to the banknipt before his
bankruptcy. Pleas, 1. That R. W. F. did not
endorse ; 2. Payment by defendant when due,
but not stating to whom ; 3. Payment before
action to bankr'ipt before bankruptcy, in full
satisfaction, &c. : — Held, first pica hcA for tlu;
variiince in the name. Second and third pleas
good. Moore v. Vuok; J) Q. B. 2(51.
A note endorsed by the bankrupt before com-
mission issued, though not due until after, may
be proved as a, debt, and the plea of bankruptcy
is a defence to it. Wood v. Jluit, 9 Q. B. 344.
Debt on bond made by defendant and one W
as sureties for one S. , conditioned that if «,.
S. should not from time to time, &c., wcUjiii
truly pay unto the plaintiff eacli aiul even- ,"
ten promissory notes on the respective (lavs,iii
wliich the same became due and payable, aeooni.!
ing to the tenor and effect of the said pr(inii<4»|
notes respectively, then, if defendant anil saijl
W. , or either of them, xhould well ami tn'tl
absolutely and at all events pay or cause tolil
paid unto the plaintiff each and every of tlnl
said ten promissory notes on the respective im\
on which the same became payable, then. J-'. I
otherwise, &c., assigning breaches as tn tlit- Ljl
six notes. Plea, that .S, did not pay the iJi
and second of the said ten notes when the saial
became due and payable according to the teaJ
and effect thereof, and that thereupon the \m\
became forfeited ; and that afterwards, amlwhil
the said notes remained due and uniiaiil— toml
on, i.te. — s.aid S. became bankrupt; and tkl
afterwards, and while the said notes remaiiie,l|
due and unpaid, and after the said writini; iiii\
gatory h.ad Viocome forfeited, the defcnilanti*.!
caiuc bankrupt, &c. ; and tliat said delit accnit<|
due and was payable before the dcfeiulantbivaad
bankrupt :— Held, on demurrer, that the Kjial
being forfeited before defendant's liankniiitdl
therefore tlie penalty became a debt whioh til
plaintiff might have applied to have retiiitai s'l
the hands of the ilefendant's assignee till (A
contingency happened, ■ and then have [irovrtT
and that the defendant was diseharyed, an 1 til
plea conso<pientIy good. Richards, ,f , diss. Pf,\
rin V. Hamilton, 5 C. P. 57.
C, one of the obligors in a bond of inJa.!
nity to the sheriff under a writ of attaclmiesi
obtained a final order for protection froninnval
judgment was olitained in an action a'ainittal
sheriff, su1)se(iuently to the filing of the jictir, J
and the bond, but was not referred U in f i|
Rchedulu thereto: — Held, that; ('. waiuatis-l
charged by such final order, the claun rot tes
one which could have been proved r.iMiiL'tkil
estate either in insolvency or baiikruiitcy J/mI
V. Bullet al., 7 C P. 15. |
Where a bankrupt whose property h.ii
sold under a commission of the coiirt in )|.»|
trcal, brought ejectment for the same Lini:-
Held, that he was barred bv 7 Viet. o. Wt
9 Vict. c. 30. Bradhtmj v. 'Wasloj, 9 (.', 1
Where the estate of a bankrupt is suSa
to pay in full, and a surplus remaiuii, iita
must bo allowed on all debts proved umitti
commission, where the debt by express cents
or by statute bears interest, or where awn!
to pay it is to be implied ; but on uo other Jd
Re lAVhjstaf; 2 Chy. 1G5.
A debtor made an assignment of oertiian
estate to B., a creditor, the deed beiui
in form, Init intended as a security tor tlie iii^
and the debtor afterwards became iunbi
under 7 Vict. c. 10. Many vears after 1
a bill against the mortgagee s adniiuistwtivil
an account, &c. Tlie adininistratdr, lieiiU'J
i.tiit ;;f thi> bankruptcy, eonscuteil to ,iJfl
referring it to the master to tak" the ms
accounts on the footing of the assijnini'nt »
a security ; but on afterwards disooveEi^
f.actof the bankruptcy, he riled a pctitioaai
up the bankruptcy, and claiming reheiwjj
the decree : — Held, that the consent wam I
Decisions under
%inchainljerscan
»";;m charged in exo
1397
BANKRUPTCY AND INSOLVENCY.
898
m
"i I
! i
1 that the decree should be set aside, and the
Ifn .i;l,;««(l unless the assignee in banknii)tcy
hill dismissed unless the assignee ; _ .
I uillintr to adopt the suit and become bound
[JJ't Jhilch V. Ilo.i^, ir^Chy. 90.
The plaiutitf swore that at tlie meeting of the
imilitora B. refused to give up the property
Iwithont receiving from tlie creditors payment in
Ifall »f his debt ; and that they refused to pay :
Held that this did not put an end to tlieir
Wit to the propert}', or authorize the liankrupt
le for it to his own use. Jh.
c \(ns FOB Remef ov Insolvent Debtoks
llEFORE 18()4.
c. 3y and 10-11
certma
Jciiig ^
If or tin i
Ine 'wil
laftor !
liuisuii'f^
|r, I'tioii
J til a .i«i
ItWrA'a
iimii-ni *
ictitioai*
I reliei »
Demons under 5 Will. IV.
Vict. c. 15.
■mm Acts were Jiepea,
aLm nnd Cotmlklutet
Jii'peakil and their Prori,-<ion.s
'I by 10 Vict. c. 4S, uow
.y. ('
Weeklii Alloimncc.
AMarit /or.— The prisoner is sufficiently
' crihed in the affidavit as a prisoner in exe-
iBtionin the gaol of the I^IIdland District, at the
fctoftheidaiutift'. Slinckv. Cransfiw, Tay. 307.
An affidavit that defendant is not worth iTi,
lides the necessary -wearing apparel, is sulii-
nt. ilalone v. Handy, 5 0. S. 75.
IO(/i(T r«v«'s.— 'I'he court will not grant an
Icr for arrears which accrued pending an un-
icessful application for discharge. Moran v.
,/(,;/, Tay. 408.
lenicc of an order for allowance, under 2 Geo.
. c. 8, 8. 3, was not considered a service under
IV. c. 8. Shiu'k v. Craiimii, Tay. 437.
i\Tiient to a person acting as turnkey is good.
4ey. Barnkirt, Dra. 53.
[ter a rule for allowance, plaintiff cannot tile
„ interrogatories and suspend the payment,
cugh he hear of property supj)osed to have
1 made .way, of which wlien tiling the first
■ogatories he had no knowledge. J ft. ,54.
ere a defemlant afterrobtainiiig his allow-
goes oil the liiuita, he nuist give notice of
before he is entitled to
Dra. 201.
J;tetuni to custody
ker payment. — S. t
^defendant rendered by his bail after tlie rc-
\i^ lion est inventus to a ca. sa. is not in eus-
f oil mesne process, nor is ho charged in exe-
m. so as to obtain the weekly allowance.
ciulal. V. Vaiukcar, M. T., '2 \'ict.
Idelitnr in custody on a criminal charge can-
I obtain a rule for the weekly allowance in a
Muit. Tlwmpgonv. Jftii/hson, M, T. G Vict.
U', -.Touts.
iiirbwill order the weekly allowance to
V impriso.ied for non-payment of costs.
\i liiiifof.'v. IkUl, 4Q. li. l--'5.
fdge in chambers cannot order the alio wance
Kiuerschargcd in cxecutionon final process.
. J/e(ri«, 1 V. L. Cliaml). 25.— Maeaulay.
(b) Apjdieation for Dincharije,
[Xoi\-imyment of WeeUy Alhicancr.--1.<i
I not grant a rule absolute in the tirat
Instance for discharge for non-pajnnent, unless
the ailidavit state that no interrogatories have
been tiled by the plaintiff. Williaim v. Crosby,
Tay. 10.
To detain a prisoner who has applied for his
discharge the affidavit, must not only state his
possession of property obtained since his im-
prisonment, (or his obtaining liis allowance), but
also that he has secreted or fraudulently parted
with it. lyUliam.f V. Croshy,Tay. 18.
The court refused to discharge a defendant
where the plaintitV died, and the allowance was
tendered by a ])erson who had usually paid it,
although no admiiii.stration had been granted.
Beard \: Orr, Dra. 241.
Affidavits may be received contradicting the
answers of a prisoner to interrogatories tiled to
deprive him of the allowance, and in answer to
an application for his discharge; and the court
wmU not discharge the prisoner unless they are
watisfied that he has no means of support, and
has not fraudulently secreted or conveyed, &c.
^fo»t)JOllu■ry V. linbiiut, 2 O. JS. 50G.
rayment of the allowance after answers filed
to tlie plaintitl's intemigatories is a wiiiver of
any olijcctions to the answers, an<l the plaintiff
cannot tile further interrogatories without leave.
Malune v. Handy, 5 O. S. 310.
The answers of a defenilant in custody to in-
terrogatories by the plaintiff after an order for
the allowance, must not only be full, but satis-
factory. Sand<rson v. Cameron, E. T. 2 Vict.
The plaintiff may tile interrogatories after his
default in paj'inent of the allowance, and before
defendant has applied for his discharge. Elwood
V. Monk, Ihdkr v. Thomas, M. T. 3 Vict.
It is no excuse for not paying the allowance,
that the defendant had it paid at the suit of
another plaintitl", or tiiat a co-defendant is not
in custody, and has put in bail after the order
granted. Tru<<cott et at. WoMi el at., 5 O. S. 79.
"Where a defendant is arrested and has the
aUowance ordered in .several causes, he is, under
section 4 of V. 8. U. C c. 2t), entitled to one
sum of 10s. a week, but in default of payment
he can properly claim to be discharged in all the
causes. The fact of non-payment of the costs
of a former application dismissed with costs, is
no reason for refusing a second application made
upon .iiitlicient materials. Mclunc.i v. Webster,
8 L. J. 21. -U. L. rhamb -Richards.
Answers to interrogatories were tiled and
served in Toronto on Friday, 20th August ; the
allowance wius not paid in Barrie on Monday
23r(l : -Held, upon a summons to discharge the
priaoner for non-payment, that a reasonable time
had not elapsed between the tiling of the answers
and the non-i)aynient. L'egina v. Htathers, 1 C.
L. Cl'.amb. 52. — Macaulay.
An apidicition for disch.arge nnist bo sup-
ported i)y an ailidavit of the turnkey that the
money h.vs not been paid, if tlie sheriff employ
one ; if not liis ailidavit should shew it. Car-
1» liter V. Tout, 3 L. J. 151.— C. L. Ohamb.—
Itouiusort.
A prisoner in execution for seduction is not
entitled to weekly allowance, or at all events not
to be discharged for non-payment of it. Upthe-
i. i.
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399
BANKRUPTCY AND INSOLVENCY.
4«
1; '«
grove v. Winters, 6 L. J. 88.— C. L. Chamb.—
Draper; Purcell v. McKeown. Ik, 58. — C. L.
Chamb. — Richards.
Held, that upon the affidavits and facts in
this case, it sufficiently appeared that an order
for the allowance had boon served, and default
made in payment, so that defendant was entitled
to his discharge. Hutchinmn v. Jackson, 2 P.
R. 276.— Chamb.— Richards.
Other Groiindg.] — An insolvent debtor charged
in execution for seduction : — Held, entitled to
relief. Perkins v. O'Connelly, 5 0. S. 80.
A defendant in custody under a ca. sa. for not
answering satisfactorily interrogatories on a judg-
n]£nt in an action of seduction : — Held, a debtor,
entitled to his discharge under C. S. U. C. cc. 24,
26. Boyd v. Bartram, 3 P. R. 28.— Q. B.
A defendant in custody in execution for a sum
not exceeding £100 is not entitled to his dis-
charge unless he has been six months in con-
finement in gaol. Denham v. Talbot, l> 0. S. 79.
If not exceeding £20 he is entitled to his dis-
charge on satisfying tlie court that he has been
imprisoned more than three mouths, but the rule
is not absolute in the first instance. King v.
Keogh, 5 0. S. 326.
The notice required of intention to apply for
discharge may be given before tlie full period of
imprisonment has expired. AfcP/wrson v. Camp-
bell, T. T. 4 .'- 5 Vict.— P. C— Macaulay.
The debtor must shew that he has given the
notice. Averillv. Baker, M. T. 5 Vict.— P. C.
— Jones.
A prisoner in execution for debt cannot, by
assigning his effects in trust for such creditors
as choose to come in and on receiving a dividend
discharge him, make himself an insolvent debtor
within 10 & 11 Vict. c. 15. Gillespie et al. v.
Mckerson, 6 Q. B. 628.
A debtor applying for his discharge must
shew that he has not since judgment so disposed
of his effects as to defeat the creditor's remedy.
An assignment, after judgment, for the benefit
of creditors generally, will therefore prevent
his discharge. Qiucre, whether it would affect
his claim to the privilege of gaol limits. A itkin
V. Bullock, 11 Q. B. 19.
On Saturday, the 14th of August, a debtor ap-
plied for his discharge, under the 10& 11 Vict. c.
15, 8. 3 ; on the 30th the plaintiff filed interroga-
tories : — Held, that the plaintiff had all Mon-
day, the 30th, to file his interrogatories. Semble,
also, that they must be filed before the expira-
tion of the fifteen days limited by tlie act.
Balkley et al. v. Griijge, 1 C. L. Chamb. 50. —
Macaulay.
Held, 1. Upon the answers of defendant to
interrogatories and his oral examination, that,
notwithstanding the statements of the delitor to
the contrary, it sufficiently appeared he had
wilfully contracted the debts for which the
judgments were recovered, without having had
at the time a reasonable assurance of being able
to pay or discharge the same. 2. That it
was the duty of the judge to whom applica-
tion was made for discbarge of the debtor, on
the ground that he was not worth $20, under
tidavit for discharge from close m\fi\
iider sec. 8 of C S. U. C. c. 2(i, be positinl
C. S. U. 0. c. 26, s. 11, to recommit hit
which was done, until 1 st June next— (lefenjj, I
having been in custody since 28tli Mnv ig^
and having made his application for disoli.iri
before Micnaelmas Term last. 3. That if \i^. J
tiff so desired, it should be a comlitinn ofti^l
discharge that tlie debtor should assimuj
interest in the assets and effects of the tirm «|
which he was a member. Winks v. Uohln \
Oijilt:!/ V. llolden, 1 L. J. N. S. 100, -C, J
Chamb. — Richards.
An affid
must, Ull<ler sec. o oi \j. o, v. \j. u. \m, DC positinl
to the effect that the debtor is not wortiiJ'il
exclusive of his necessary wearing apiiarel, ij
Dowjall v. Yager, 1 L. J. N. S, 133,-C, Ll
Chamb. — Kiclianls.
Before a debtor can be discharged on inter^l
gatories, he must disclose what he lias doiieiriiil
his property by answers which are iii tlie opiniij
of the judge sufficient, that is, full, complfti
and true. A disposition of property, tli(,t;!i|
not necessarily a moral fraud, may ha frauiluirsj
as against, and calculated to injure, his oreditiiil
and therefore militate a,,'aiiist tlie (liscwl
Dongatl v. Yager, 2 L. .1, N. S, IUI.-C.lI
Chamb,— A. Wilscm.
Further explanations and a transfer of certal
claims to the creditor were required. Ih.
Where a defendant in close custody uiiileraal
sa. in an action of criin. con. has not ansfe^il
interrogatories, and appears to have the metal
of satisfying a large portion of the iudgnient,iil
is neither entitled to lie discharged under Cil
U. C. c. 26, 8. 8, nor to be re-committed Mfel
sec. 11 for twelve months, and then dischamil
Glennie v. Ross, 15 C. P. 536. I
\\niere a defendant applies for his disdurjl
under 10 & 11 Vict. c. 15, affidavits may il
received from the plaintiff contradicting till
answers to interrogatories, or shewing that fel
cannot be true. Clarkson v. Hart, 9 Q. B.5lj|
It was held otherwise in Ca »);)&(■/; v,
son, 1 C, L, Chamb. 91, — Macaulay,
The answers of a prisoner being stylol iiiil
cause, and intituled in the proper court, lal
headed "The answers upon oath of,"Si'„«l
proceeded thus : " To the first iiiterrngatiirT,ii|
saith," &c. 2. To the second iutt'rr{igatiiry,L|
not adding "he saith." To the fifteenth u
rogatory only tlie figures "15" were pre
The jurat stated that the deponent was i
&c., "and made oath that the foregoing aun
were true, on this 8th day of March, \^'\
Held, that the forms of the answers and theji
were defective. Addy v. ficotMC, 1 P. E !
— Chamb. — Richards.
The provisions of 5 Will. IV, c, 3, s. <
having been re-enacted in the Consol, .Stati,i
law has been changed, and the debtor is Dot j
titled to his discharge if he give the infora
called for by interrogatories or exaniinatioinl
voce, and it appears that he is not »onl|
exclusive of the articles exemi)ted,
case is brought within the provisions «f CI
U. C. c. 26, s. W.-Wallisx. Harim-aiiidir
3 P. R. 50.
This case, upon the result of the ill
tones and examination vivil voce as st«t«
report, was held not within auy of tlie
401
BANKRUPTCY AND INSOLVENCY.
402
• „, in that section, and the debtor was dis-
u JL.1 • but it was made a condition that
hi Su'ld assign to the plaintiff certain
clhims. lb.
TheDrovisions of the C. S. U. C. c. 26, apply to
♦he Court of Chancery, and a debtor contnied
uml.T a writ of arrest may apply for his discharge
w sec 7. Laivnoii v. CrooMank; 2 Chy.
Chamb. 4i3.-Taylor, Secretary.
Tinder the 7 Vict. c. 31 , s. 6, the court would not
t „„iaij defendant by commitment unless ujjon
li, examination the cause of action and the
Lumstances would clearly warrant such a
Jmirae and in this case it was refused. AfcCite
l« Decuiona under 8 Vict. c. 4S, and 19-30 Vict.
( 9S, now a. S. U. a c. 18; and mider 7
i'ict.'c.Sl.
I iS Vict. c. 48, which repealed the 7 Vict. c. 31,
VkL km ivmned since the Jmolvent Act, 1804. It
\Z extended by 19-20 Vict. c. :% and, with tim
lomrtion of a few secf"^ - repealed and ej/ete, w
K'l U. C. c. 18. 19-20 Vict. c. 93, tvas
Inptaled by 20 Vict, c -j
I Under 7 Vict. c. 31, the recognizance was not
Iforfeitecl by the non-payment of the condemna-
lion money on the recovery of judgment, unless
Ae alternative condition was broken. The legis-
iturc having made no provision in the 8 Vict.
"48, repeaUng 7 Vict. c. 31, for continuing the
jceedings commenced under it, no proceeding
mow be taken against bail under such recog-
nce. Hardy v. Hall, 2 Q. B. 97().
The final order under 8 Vict. c. 48, must be
1 well for the distribution of the effects of the
Uikrupt, as for protecting his person and goods
mm process. Ferric v. Locklutrt, 4 Q. B. 477.
The judge's order under the insolvent law
»ed not be confirmed by the court of review,
(operate as a discharge from actions. II).
\ Under 8 Vict. c. 48, the right to sue an attor-
rfor negligence, vests in the assignee of an
K)lvent. Alexamlc, .. AB. .0 Ci>., 5Q. B. 329.
[to an action on a note defendant pleaded that
ler contracting the debt, and before this suit,
letition for protection from process was duly,
I according to the statute, presented by liim
a county judge, and filed in the insolvent
it ; and that thereupon, before action, a final
ler for protection and distribution was made
; and that the said debt was contracted
ire the date of filing said petition. The
itiff replied that the promise was made, and
cause of action accrued, after the petition
presented— coueludiiig to the country : —
I, i.n demurrer, replication bad ; plea good.
■cli V. Akxandtr, 10 Q. B. 43r).
lare, whether a person having failed before
b Bankruptcy Act, 7 Vict c. 10, but contiuu •
(trader, and unable to meet his engagements,
iio being able to avail himself of its provi-
, could still take advantage of the Insolvent
iors' Act, 8 Vict. c. 48. Senible, per Draper
iBurns, JJ., that he could not. Per Robin-
IG. J., that he could. But — Held, that a
Older obtained under the above circum-
stances was conclusive, and not to be questioned
ill an action brought for a debt Ijarred by it.
^i'teuenson v. Green, 11 Q. B. 452 ; 12 Q. B. 290.
Where such an order is pleaded in bar of a
debt, it must be averred that such debt was
included in defendant's schedule. Boulton v.
yoiu-ge, 11 Q. B. 452.
Defendant was a trader, within 7 Vict. c. 10,
but first became so after the expiration of that
act, and became insolvent before the 19-20 Vict,
c. 93 : — Held, that he was clearly within the
latter act. Boulton \. Noiirse, 15 Q. B. 555.
The order recited the petition, and that the
debtor was entitled to protection, and then certi-
fied that " this filial order" was granted under
19-20 Vict. c. 93 ; the operative words of the
order being omitted : — Held, that the order was
insuHiciant. The effect of the order under 19-20
Vict. c. 93, is not confined to debts specified in
the schedule. Commercial Bank v. Cuvillier et
al., 18 Q. B. 378.
C. , one of the obligors in a bond of indemnity
to the sheriff under a writ of attachment, ob-
tained a final order for protection from process.
Judgment was obtained in an action against the
shenff subsecjucntly to the filing of the petition
and the bond, but ■was not referred to in C's
schedule thereto : — Held, that the sum recover-
able by the sheriff on such bond was not a "debt
contracted payable on a contingency," or a
"liability" uiicler 19-20 Vict. c. 93, from which
O. was discharged by such final order. Held,
also, that tlie obligees were not entitled to set-
off against the sheriff's claim money which the
sheriff had applied out of the proceeds of the
sale under the attachment, to pay certain exe-
cutions ill his hands prioi' to such attachment.
Jifoudy V. Bull et al., 7 C. P. 15.
Action on a bond to the limits against F. , and
his sureties. Sixth plea, that by an order made
according to the 8 Vict. c. 48, and 19 & 20 Vict,
c. 93, the defendant F. was duly discharged
from the cause of action for which the arrest
took place. Seventh plea, that before the said
F. departed from the limits, and after his arrest
and bail given, an interim order for protection
was given to him, which was in full force at the
time of his departure as alleged. Eighth plea,
that before this suit, a petition for protection of
said F. was presented to W. S. , county judge,
and filed in the insolvent court, and thereupon
a final order for jjrotection and distribution was
made by said W. S. , duly authorized ; and that the
debt for which the attachment issued, on which
F. was arrested, was contracted before the filing
of said petition : — Held, on demurrer, pleas
bad. Meyei-s v. Francis et al., 15 Q. B. 565.
To support an application by an insolvent to
set aside an execution, a levy miist be shewn upon
some property not vested in the assignee, who
would otherwise be the proper party to apply.
Mullens V. Burke, 1 P. R. 271.— P. C.— Draper,
The plaintiff took defendant's note for advances
made, fo- £366, on the 10th of March, at three
months. On the 19th defendant obtained his
final order for discharge under 8 Vict. c. 48, the
plaintiff being mentioned in his schedule as a
creditor for £150 : — Held, that the order was not
a bar to the note, even as to the £160, if included
in it. Greenwood v. Farrell, 17 Q. B. 490.
•An
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403
BANKRUPTCY AND INSOLVENCY,
40i
lis ; "'
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Declaration on a note, and common counts.
Plea, that defendant had been a trader in Upper
Canada within the Bankrupt Act 7 Vict. c. 10,
and since the expiration thereof Ijccame insol-
vent, &c., hut not stating that he was insolvent
at the passing of 19-20 Vict. c. 93, whereunder
he filecl his petition, and claimed to be exempt :
— Held, not sufficient under 19 20 Vict., and
that the clause in the order, " and it appearing
that the said defendant by virtue of the statutes
in that case (19 Vict.) made and provided, is
entitled to the protection of his person," &c.,
could not be construed as an adjudication by the
court that the petitioner was insolvent at tlie
passing of the Act. Smith ct al. v. Dtinpseij et
aL, 10 C. P. 515.
A judge in chamoers will not in general enter-
tain a question as to the validity of an order of
discharge under 19-20 Vict. c. 93, but will let it
be determined by way of audit.1 querela. Sffio-
field V, Bull, 3 L. J. 204.— C. L. Chamb.— Burns.
V. Examination of ,Tudoment Debtok.s.
(1) Under C. S. U. C. c. 24, .<». 41.
A simple answer of "Yes" or "No" to a writ-
ten interrogatory, is not proper, though it may
do on a viv.1 voce examination. By an v. (Jidleii,
1 C. L. Chamb. 229.— Burns.
Although a debtor in close custody assigns
what purports to be all his debts and effects to
the plaintifif, yet his answers may be so unsatis-
factory as to warrant his further detention.
McLeanv. Maitlund, 5 L. J. 279.— C. L. Chamb.
•^Robinson.
If a defendant, under an order for examina-
tion, &c., refuse to produce promissory notes,
though under the advice of his attorney, a ca. sa.
may be issued. Davidson v. Gordon, 5 L. J.
279.— C. L. Chamb.— Burns.
Semble, the common form of order for exam-
ination, blending the provisions of C. S. U. C.
c. 22, s. 287, and c. 24, s. 41, is not jiroper.
These acts have very different objects. The
affidavit applicable to the one, by no means
necessarily will be suitable to the other. Mr In nes
V. Hardy, 7 I/. J. 295.— C. L. Chamb.— Draper.
See, also, Bulkn v. Moodie, 13 C. P. 137 ; Baird
V. Story, 23 Q. B. 624 ; Swilzer v. Brown, 20 C.
P. 193.
Where the debtor without excuse fails to at-
tend, or refuses to answer when properly inter-
rogated, or answers equivocally or evasively, the
proper way is to punish him as for a contempt
of the order, or to compel him to obey it by
directing him to be imprisoned for a period within
the discretion of the judge, not exceeding twelve
months ; but if, when attending, his answers
are such as to lay a reasonable ground for the
suspicion that he has concealed his property, or
made away with it, in order to defeat or defraud
Lis creditors, the proper course is to allow a ca.
.>ia to issue. Wallis v. Harper and Qibnon, 7
1j. J. 72. — C. L. Chamb. — Robinson.
If a qdestion* or a series of questions be put,
I'/hicli the judgment debtor refuses to answer,
tiiere should be some statement to this effect in
the cortilicate of the examiner, either general —
thfA questions of such a purport were put, which
the defendant refused to answer — or, better still,
that some specific question or questions wsp
put, setting tliem forth in sulwtance, and tb j
defendant would not answer them— nr that k
fondant's ansTvers to such and such questioj,
were not satisfactorir— or giving quuations aac
answers, so that it might be determined hW
they were satisfactory or not. Refusin;' to ji
swer, or answering questions unsatisfact.ifjiJ
are matters which, if not certified ))y tlieoxm'; I
ner, must be made specially to ni)pcnr, eithtrijl
the report of ex.aminer, or m an atlidavit stttui I
forth (questions which were put and were wli(ji]y|
unanswered, or that an answer gi\uii (statuii; ij I
was unsatisfactory. Semble, the fnniiur istiJ
lictter course. The examiner should rtinut,!
answers to his questions, and tlic (lefemlant's r^ I
fnsal to answer, or his unsatisfiictdi-y aiiswtr I
should 1)0 entered in the report of the examiji! I
tion. Me'hmcn v. Hardy, 7 L. .1. 2!)5.-(' M
Chamb. — Draper.
Declaration for false imprisonment, to wliitl I
the defendant B. plcfvded, that having retuvfif] I
judgment in the Division Court against the m» I
plaintiff for the sum of ?60 odd, and the execs- f
tion issued thereupon having been returadl
nulla Ijona, a transcript of the judgment wasol-l
tained and filed in the County Court ; that um I
this a writ of execution was issued, which \m I
returned nulla bona, an order was made by S I
judge of the County Court, under C. 8. U. f. t f
24, s. 41, calling on the now plaiiititf to appa- 1
before the clerk of the court and lie i^nmA, I
&c., and a report and return was made in c* I
pliance with the order : that upon readiii" sue!
report, &c. , the judge of the County Court "issji.
a summons calling upon this plaiutiif to sb I
cause why he shomd not be committed, icais! I
on return thereof, the plaintiff not appearing!
no cause being shewn to the contrary, thejiic
ordered that a writ of ca. sa. , should issue witliE I
five days, which was issued accordingly, whm- 1
upon plaintiff was imprisoned. To this plea, tit I
plaintiff demurred: 1. Because the judguiful
and amount for which the ca. sa. issued, wasla f
than §100. 2. That the judgment on whiclitti
ca. sa. issued, is founded on a judgiuent diiiil
Division Ccmrt ; that the plaintitl' was mikusi \
by the statute to attend to be orally examisfii; 1
and even if he did so, he could not be arrejlsl {
on such examination being uusatisfaotiirf.- 1
Held, 1. That though under see. 12 theplaiiilj
could not sue out a ca. sa. for less than iW\
still, under sec. 41, there is no such liniitatiniT
that the process awarded is not obtaiueJIiyilij
plaintiff, but is given by the court or jiidge.iiJj
under C. S. U. C. c. 19, s. 143, by the tihngnll
entry of the transcript, the judgiuent of tlieMl
defendant became a judgment of the Com
Court, and he was entitled to pursue the sul
remedy upon it as if it had been originally*!
tained in the County Court ; and hence defati
ant was bound to appear and be examined '
Kehoe v. Bromi, 13 C. P. 549.
The court, under the circumstances of liij
case, refused to order the coimnitinent of iiU\
ant. Hobha v. Scott, 23 Q. B. 019.
Answers are not unsatisfactory, witkiiilil
meaning of the act, merely because they dji'^
account for the application of defendant's "'
m a proper manner. lb.
Qua;re, whether a refusal to deliver pr(_
to the sheriff, that it might be taken in eiol
405
BANKRUPTCY AND INSOLVENCY.
406
tion when it is afterwards applied in satisfac-
tion' of another creditor, is a refusal to diseloso
luch property, within tlic statute, lb.
Remarks as to the ditficulty of the court
I gfriving at any satisfactory ( i elusion upon a
defcnilaiit's cxaininatiou. lb.
1 Ueffiiilant had borrowed .£.'500 from tlie plaiu-
I tiff on mortgage, at a rate exceeding legal intcr-
I est ami the time for payment had heen extended
I it a liigher rate. Disputes arose as to this
I extension. The plaintiff sued defendant on the
I covenant, and an award was made in hi.4 favour
Iforffi'W 1.'3. lid., on whioli he entered judg-
Imcnt, and the defendant filed a bill in C^haneery
Ito redeem, and for au account, allowing all ex-
loesialxive legal interest to go in reduction of
Inrincipal. The defendant had a demand against
|l third person for .£500, which the plaintiff de-
lliicil to garnish, and with that oliject had the
kfemlant exaiir"'- ', but in the meantime the
lefendant obtained payment of that sum from
lus debtor. This money he offered to pay to
ike plaintiff upon the original mortgage, but re-
laeu to pay upon the judgment. A summons
(i™g been obtained on defendant to shew
liuse why he should not pay to the plaintiff the
'800, or in default be commited to close custody ;
rwiiyaca. s.i. should not issue against him,
r why he should not be again examined as to
t effects :— Held, that there was no ground for
serference. Boswell v. Pomrroi/, 2 V. I{. 310.
C. L C'hamb.— Burns.
i.'Where, upon an application to commit a de-
idant to gaol, under 22 Vict. c. 96, s. 13, the
Jge ordered a ca. sa. to be issued instea<l, as
lowed by that section, and the defendant there-
ion gave bail to the limits : — Held, that he
lid not again be committed to close custody
der the Srst alternative of the same clause.
rrinv. Bowea, 2 P. R. 348.— P. C— Burns.
i County Court judge, having himself examined
[defendant, informed him at the close of the
nation that his answers were unsatisfac-
, and that unless he assigned to the plaintiff
lin property mentioned, if the plaintiff's
lorney appUed for his committal, it would be
Wd. Ten days afterwards, without any
her notice to defendant or summons, an order
|;tominitment issued, under which the dofend-
[ was arrested ; — Held, that the order was
; that the judge having himself heard the
nination, and having the defendant before
, had a right then to adjudicate aa he did :
i it was unnecessary to issue the order at
t ; and though he had no power to compel
Kutiou of the assignment, yet the opportunity
»M to defendant to escape arrest by doing
«cuM not -iitiate the order. Balrd v. Story
-•,23Q. B.624.
il, affirming Bullen v. Moodie et al. , 12 0. P.
, that in proceeding to arrest and imprison
"rty for the insufficiency of his answers on an
Bination as to his estate and effects, con-
'ed before any other functionary than the
^ who orders the arrest, it is necessary that
nmons to shew cause should, in the first
pee, be issued. Also, affirming the same
nent, that the fact of the judge who made
Irier to commit having authority to make
j^order, and that the same appeared to be
T on the face of i'-, was not a sufficient
ation for the attorney of the party suing
out such order, in an action brought against the
attorney and his clients for assault and false
imprisonment. Ponton v. Bulletin 2 E. & A. 379.
Held, that the judge of the County Court can
direct the examination to take place outside of
the county where the debtor resides ; but the
committal must bo to the gaol of that county. The
plea justified the arrest and imprisonment of
plaintiff under an order made by the county
judge, embracing the enactments of the garnish-
ment clauses for the attachment of debts and
production of books, &c. , and those of sec. 41 0.
S. IJ. C. c. 24, and also under an order of commit-
ment by such judge, which recited that it ap-
peared from the examination that the plaintififhad
made away with his property in orcler to defeat
or defraud creditors, especially the plaintiflF, and
had not made satisfactory answers respecting
same, and had not produced his books, aa
required by the order under which he was ex-
amined ; with an averment that plaintiff did not
on examination make satisfactory answers as to
his property, &c., and it appeared to the judge
that plaintiff had made away with his property
(specifying certain effects,) in order to defeat
&c. : — Held, on demurrer, that inasmuch as if
the proceeding had been under above section
41 alone, the plaintiff could have been properly
reijuired to produce his books, the court would
not be warranted in presuming that their non-
produetion was only a default under the garnish-
ment branch of the order, (for which there could
bo no commitment), but would, on the jirinciplo
of Bullen v. Moodie, 13 C. P. 137, intend that
the judge acted on that part within his jurisdic-
tion, unless it appeared clearly the other way.
Su'itzcr V. Brown, 20 C. P. 193.
A plaintiff against whom a defendant has
recovered judgment for costs only, in eithpr of
the Superior Courts of common law or a County
Court, is not liable to be examined or committed
under sec. 41 of C. S. U. C. c. 24. In re Haw-
k!n.% 3 P. R. 239.— Chamb.— A. Wilson ; Haw-
kins V. Patcrnon, 23 Q. B. 197.
QuMre, whether a defendant who recovers on
a plea of set-off an excess above the plaintiff's
demand, is entitled to examine the plaintiff.
Hawkins v. Patcr-wn, 23 Q. B. 197.
[But see 27-28 Vict. c. 25, since passed. ]
Held, that a defendant cannot, notwithstand-
ing 27-28 Vict, c. 25, on a judgment against a
plaintiff for costs in ejectment, obtain an order
to examine the plaintiffs. Herr v. Douglass, 4
P. R. 124.— Chamb.— Morrison.
Queere, must an order of committal made by a
junior judge of a County Court under sec. '•■1,
on the face of it shew the death, illness, unavi, " •
able absence, or absence on leave of the senior
judge. Semble, not ; for the maxim omnia prce-
sumuntur recto ease acta applies. Re Hawkins,
3 P. R. 239.— Chamb.— A. Wilson.
A County Court judge, on the 4th of Sept.,
granted a summons calling on a judgment debtor
to shew cause why he should not be committed to
the county gaol of Middlesex for not satisfactorily
answering as to his estate and effects, &c. , on an
examination before a commissioner appointed by
the judge. This summons having been enlarged
until the 2Gth Sept., and no one attending on
cither side on that day, the judge on the foUow-
IS
1
■k :-\ ■ '
■ * . " ,1
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i '
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hr
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Uj
407
BANKRUPTCY AND INSOLVENCY.
40$
ing day, on the plaintiff's application, enlarged it
by endorsement until the llth of Oct., of which
defendant had no notice. On the llth of Sept.
the judge had made another order for tlie debtor
to attend before him and bo further examined on
the llth of Oct., but defendant having lost this
order and believing it to be oidy a summons for
further examination, on which an order would
be afterwards made, did not attend upon it. On
the llth of Oct. the judge made an order npon the.
sumvions of the 4th of September for defendant's
committal to the county gaol of Lumhton, where
he had resided since before the date of that
summons. Defendant having been committed,
applied for his discharge to the judge of the
Cfounty Court, who refused, unless lie would
undertake to bring no action ; and an order
was signed for his discharge on these terms,
which he declined to accept. Tlie prisoner hav-
ing been brought up by habeas eoq)US, it was
objected, 1. That the summons having lapsed
on the 26th, could not be enlarged ; 2. I'hat
the summons was to commit to the county
gaol of Middlesex, and the order to that of
Lambton ; 3. That the order of the 1 1th of
Sept., for further examination, was a waiver
of the previous summons to commit : — Held,
that such enlargement could not entitle de-
fendant to his discharge : that the second ol)-
jection could have been .available only on the
return of the summons ; and that the order was
no abandonment of the previous summons. The
defendant was therefore remanded. In re Miinn,
25 Q. B. 24.
The rule for defendant's discharge, as a1)ove
mentioned, was returned to the writ of certio-
rari, with a certificate by the judge that it had
been refused by the defendant's attorney : — Held,
that being so refused, it was as if it had not
been .granted. Qurere, as to the validity and
effect of the words in such rule restraining defen-
dant from bringing any action. Ih.
An order to commit must be absolute, not con-
ditional. Chichester v. Oordon et ul. , 25 Q. B. 527.
A County Court judge, being dissatisfied with
the answers of a judgment debtor on his exami-
nation, ordered that he should bo committed for
six months unless he should forthwith give a
negotiable note for the debt, made by himself
and endorsed by one C. : — Held, that the order
was bad, as being conditional lb.
A county judge ordered an execution debtor
to be committed for ten weeks, but the judge
died before the order was enforced. The deputy
judge then, upon the same examination, ord!ered
a commitment for three months, ai>d directed his
warrant to all sheriffs, &c. Defendant was ar-
rested and lodged in the gaol of a county in
which he did not reside : — Held, 1. That the com-
mittal to any county other than that in which
debtor resided, was irregular ; and, Semble, that
the order or warrant should shew the debtor's
residence, and that he is to suffer imprisonment
there. 2. That the deputy judge could not make a
different order from that which had been made
by the county judge. The prisoner, who was
brought up on a writ of habeas corpus, was dis-
charged. In re Weatherly, 4 P. R. 28. — Chamb.
— Richards.
A commitment under this act is in the nature
of a commitment for contempt, or as a punish-
i&ent for fraud upon creditors ; and as such the
plaintiff has no such control over it, nor can he i
waive it in such way as was alleged in this case
W^anl V. Armntrong, 4 P. ft. 58.— Chamb,-
Hagarty.
An order once acted upon by the attouilaiic« I
and examination of the debtor before the exam, i
incr under it, cannot be again used for the same
purpose ; it is spent. Jarvis v. Jonen, 4 p
R. 341.— Chamb.— Morrison.
Nor can a stale order which has been partiallv
,cted upon. McGreijor v. Small, 5 P. K, 5(i,_
actei
Chamb.
-Richards.
An order will not bo made for the examiuatinii
of a judgment debtor whoso home is in Quebec,
though temporarily in Ontario as a member of I
Parliament. Ileijcm v. McOreeinj, 5 P. R. 94..
Chamb. — Hagarty.
When a debtor has been examined unilcrC, S, I
U. C. c. 24, s. 41, and an order for his commit-
tal is applied for, the proceedings lieingof a peiul
nature, a clear offence under the act must be |
shewn to warrant the order. The debtor mnit
have contumaciously refused to answer, or 10 1
equivocated as to render his answer no answerjt I
all, before he can be said to have given "unsatii- 1
factory" answers. In this case the order wa
refused. Lemon v. Lemon, 6 P. R.— C!hy, Chamli, f
— Holmested, /fe/eree, Strong. Notyetic;iortei |
See IV. 1 (b). p. 397.
2. Under Division Courts Act, C. S. U. C. c IS
ss. 160-173.
The plaintiff demurred to the replication to » I
plea justifying an arrest under an order to com-
mit, issued by a Division Court for disobedience
of an order to pay a judgment debt w-ittim
named time. Defendant joined in demurreraml
excepted to the plea : — Held, as to the plea-l.
That it was unnecessary to state the proccediiij!
before the judgment, so as to give the Diiisioi
Court jurisdiction, the amount stated beiij
clearly within it. 2. That the issue of cxeci'
tion in due course, and its delivery to the plain-
tiff and return, were sufficiently stated. SemMei |
th.at the issue and return of execution is 11
under the Division Courts Act, a condition p» i
cedent to the examination of defendant. Itw
alleged that when the summons to examw |
issued the plaintiff resided in the county, Iwi I
not that he continued so resident at the issue oi I
the summons to commit : — Held, snfficieut, k I
this would be presumed. It was not avemi j
that the plaintiff was examined on oath lefoit i
the judge, or any other evidence adduced, lie j
warrant, set out in the replication, recited that it j
appeared to the satisfaction of the judge that In |
had contracted the debt under false pretences;
— Held, sufficient, for it is not necessary ii|
all cases to take evidence on oath, and the j
might have acted on the plaintiff 's admiow I
Semble, that the omission of the cleri. t«eiititl
an order of commitment in the procedure bod j
could not affect a defence under such wmts* I
—Held, also, that the judge had power to miiil
an order to pay in nine week8orforcomimtnia(|
on default ; and as a summons and order J J
commit issued before the plaintiff's anoMJ
was immaterial that the first order h J not wj
entered or that three months had elatweawl
it before the warrant issued. The order to fif|
ITI. I.VSOLVE.VT Ai
409
BANKRUPTCY AND INSOLVENCY.
410
LtoetWl
lureboAl
I vans* I
litmotl
1 ordcilij
1 not ti*|
lai«|
iertolifl
or for commitment issued in May. In October,
1 on the return of a summons, an order was made
to commit for non-appearance and disobedience
of the order to pay. The warrant of commit-
ment recited that the order of May issued be-
Muse it appeared to the satisfaction of the ju<lge
ttatthe plaintifT had incurred the debt under
I f&ise pretences, and that on the return of the
Lmmoiw in October he had not appeared :-
iHplrl that the cround for commitment sutti-
lEtiy appeared.*' Peck v. McDomjalt, 27 Q. B.
J853.
|vi, bsoLVE.NT Acts of 1864, 1865, and 1869.
1. Who may come under.
Held, that under sec. 9 of the Act of 1864, a
lonsent to a discharge is operative even without
1 assignment, provided the insolvent files an
Edavit that he nas no estate or eflfects to assign.
i thia case the only notice given was the notice
^disciiarge. In re Perri/, 2 L. J. N.S. 75.— C.
p.— Jones.
On application for a discharge :— Held, on the
icts set out, that the insolvent had an estate
I be administerfd under the Insolvent Act,
sre, whether, ■ there had been no estate,
jceedings could hci\ o been taken by the debtor.
f$ reSmUh, 4 P. H. 89.— Chamb.— A. Wilson.
I, also, Green v. Swan, 22 C. P. 307 ; Be Thomas,
|$Chy. 196.
I The defendant having been arrested under a
ksa. in April, 1373, applied for a discharge
urn custody, on the around that when the order
la made, and for a long time previous, he was
linsolvent under the Act of 1869. It appeared
•t being sued by the plaintiff, who was his
Cy creditor, the defendant, in September, 1873,
»de a voluntary assignment under the Act to
I official assignee, having then no assets and no
lectation of any ; and that he had since ac-
red none ; and Ids own statement was, that
I Tras driven to take advantage of the Act on
Bunt of the plaintiff's alleged claim, which he
1 no means of paying. Semble, that he could
i in this way become entitled to his discharge
ier the Act ; and that the assignment, under
eridence, more fully set out in the case,
t be regarded as a fraudulent device to de-
the plaintiff, by means of the abuse of the
visions of the Act. Thomas v. Hall, 6 P. R.
. L Chamb. — G wyiine. Not yet reported.
he plaintiff had 1)een engaged in business in
_.iada, though not permanently resident there.
Iwas arrested by defendant, a constable, who
possession of money found on him, and
; iliscnarged, he sued the defendant for the
fey. A writ of attachment having issued
ist him, one M., was appointed official
pee, and applied, under sec. 4, sub-s. 9 of
Insolvent Act of 1864, to be allowed to in-
kne and represent the plaintiff in the suit,
blaintiff objected, contending that as a for-
ft he was not liable to the insolvent laws.
oint being one of great practical impor-
I raised for the first time, the court, with
rtK) have it properly brought up, left the
«e to sue the defendant for the money) so
ihe defendant might apply under the Inter-
ler Act, and the question be presented on
fcord in a feigned fsaue. Melhn v. Nkkolls,
B.167.
Sec. 27 of the Insolvent Act of 1866, does not
enable the creditors of a deceased person to put
his executors or administrators into insolvency
in their representative character. In re Sharpe,
20 C. P. 82.
A trader who had ceased to trade before 1 st
of September, 1864, cannot be proceeded against
under sub-ss. 2, .3, and 4. Baipoell v. Hamilton,
10 L. .1. 305.-0. C— Logic.
A banker is a trader within sub-s. 2 of sec. 3
of the act of 1864. Ih.
An inn-keeper is not a trader within the mean*
ing of the Insolvent Act of 1869. Harman v.
Clurknon, 22 C. P. 291.
Nor is a barber. Thomas v. Hall, 6 P. R. —
C. L. Chamb. — Gwynne. Not yet reported.
An<l the sale of perfumery, being merely inci-
dental to his business ; and a purchase of tobacco
nine months before his assignment, which he
sold again immediately, being an isolated trans-
action ; were held, upon the evidence, insuffi-
cient to bring him witnin the Act. Jb.
See Pinkerton q. t. v. Ross, 33 Q. B. 508, in
which of printing and publishing a newspaper was
held to constitute the partners employed in it a
partnership "for trading purposes," within the
33 Vict. c. 20, s. 10, and fiable to the penalty
for not registering such partnership.
A banker and exchange and money broker,
and a dealer in foreign and uncurrent money,
and buying and selling stocks : — Held, a trader,
within the Act of 1869. Smart v. Duncan, Q.
B., M. T., 1874. Not yet reported.
Remarks as to the meaning of the term insol-
vent. Sutherland v. Alxoii, 21 Q. B. 629. See
also Hersee v. White, 29 Q. B. 232.
See Orovea v. McArdle, 33 Q. B. 252, p. 453.
2. Compulsory Liquidation.
The Act of 1864 has not a retrospective eflFect,
so as to make an act of insolvency committed
before 1st September, 1864, sufficient to support
an attachment issued after that day. Worthing-
ton V. Hamilton, 10 L. ^. 304. — C. C. — Logie.
Refraining from entering an appearance to an
action by a creditor on a specially indorsed writ,
whereby he obtains judgment and a priority over
other creditors, is not in itself a procuring of his
goods, &c., to be seized or taken in execution
within the meaning of the act ; but it is open
to the creditors to satisfy the judge that the
taking in execution was through the procurement
of the insolvent. lb.
The fact of the trading as well aa the act of
insolvency must be proved by the affidavits of
two credible witnesses, in addition to the affidavit
of the creditor, to support an attachment issued
on the act of insolvency, created by sub-ss. 2, 3 &
4 of sec. 3. Ba<iwell v. Hamilton, 10 L. J. 305.
— G. C— Logie.
A trader who had ceased to trade before Ist
September, 1864, cannot be proceeded against
under sub-ss. 2, 3, and 4. But it ia not neces-
sarjr for the plaintiff expressly to state in his affi-
davits for the attachment that the defeuduitB
were traders since the act came into force. lb.
^M.
411
BANKRUPTCY AND INSOLVENCY.
4i:
^ •■>r'r.
III!;
m^
'II
A creditor issuing an nttachniont under tlic Aut
of 1864, cannot after five days from the return
day of the writ withdraw the attaciimont, bo as
to prevent another creditor from intervening for
the prosecution of the cause. Wurlliliiijton v.
Taylur, 10 L. J. 333.— C. (J.— Logic.
Where final judgment in'default of a])poarauco
to a specially endorsed writ was enterod on tlio
23rd January, and execution i8aue<l ini the 30th
of same month, and a writ of attachment under
the Insolvent Act of 1804 issued on the 3rd Fci)-
ruary, an application on the 28th March, at the
instance of tne ofllicial aasignco, to set aside the
judgment as irregular for a defect in the affidavit
of service was held to bo too late. Dunn r.
Dunn, 1 L. J. N. S. 239.— 0. L. Chamb.—
Richards.
Leave to the official assignee to defend on the
merits, which, if granted, would have had the
effect of destroying plaintiff's priority as against
the attaching creditors, was refused, and the
official assignee left to his remedy, if any, in
term, as against the judgment 6n the ground of
fraud. IJ>,
An assignment for the benefit of creditors,
not made in accordance with the act, is an act of
insolvency, and void as against an execution
creditor, or the official assignee appointed in
compulsory proceedings under tliat act, after
such proceedings are taken, if finally sustained.
Wilson v. Cramp, 11 Ghy. 444, approved of.
Thome v. Torrance, 16 C. P. 445 ; aHirmed in
appeal, 18 C. P. 29.
Such proceedings render the assignment abso-
lutely void as against creditors of the insolvent,
so as to let in intermediate execution creditors.
.S*. C. 16 C. P. 445.
One of two partners, a few day.s before an at-
tachment against both under the Act of 18G4 had
issued, assigned his estate for the boiietit of his
creditors : — Held, void as against the official
assignee. Wihon v. Stevenxou, 12 Chy. 239.
A judge in insolvency has power to rescind an
order made by him for substitutional service of
a writ of attachment ; and in this case the court,
on appeal, refused to interfere with an order for
such rescission. Katoiiv. Shannon, 17 C. P. 592.
A creditor whose debt is not yet duo may
proceed against his debtor who is insolvent, as
as he might have done if his debt had been over-
due. But, in this case, it appearing that the
debtor did not owe more than §100 beyond this
debt, none of which was at the time due, and a
Sortion not payable for several years, the court
irected that he should be allowed further time
to shew, if he could, that ho was not in fact in-
Bolvent, Mid so not liable to have his estate
placed in compulsory liquidation. In re Moore
V. Luce, 18 C. P. 446.
An insolvent was ordered by a county judge
to produce certain books and papers. These
were at the time at Bruce Mines, and the insol-
vent did not feel called upon to go there for
them, and an order was made ex parte for his
committal for disobedience of the order. The
insolvent had, however, in the meantime, taken
the books to Montreal and given them to one
H. to hand to the assignee. He was then
arrested, and subsequently applied for his dis-
charge, which was refused. The books were
afterwards handed over to the prnpor pcf^,,.
tliougii in a mutilated condition, whicli niutila
tion the insolvent said must iiave Ix^tii (Njik;
Montreal. Ho tliun again applifd Uit hi, ,\[^
cliargc on the ground that he liad C(iin|plii;(l witn
the order, and that tiie iinpriaonnii'iit \va.4 |„,
coini)ulsory purposes only. The c(iuiit\ jnii,.
however, made an order refuning tlie applii'itinj'
and tiio insolvent tlien appealed frnm this \2
order to a judge in chambers at 'I'liriintd. h
was urj,'od that the warrant of arrest w,is hmg
cient on its face : that no demand was m.idt „(
tlio books, or refusal to give them sliewn, ail
tliereforo no cimtempt ; and tiiat thw iMjw'er of
impriHoninunt was only to enforce ciniihliiuif,
with the order, and not in putnam : — Hulij, un4ef
the Acts of 18()4 luid 5, that the judge at Torcnto
had no riglit to entpiiro into the Kgality or
propriety of the warrant for arrest, or as to tk
n.aturo or object of the imprisonment authorizej
by the statute, or whether the warrant was an
order, and so an appealable matter uiidor theacti'
tliat the last order of the county judge was not i
improperly made, and the appeal was imrtiv I
from that order. Mcfnncs v. hdriiUim \\' i
183. -C. L. Chamb.— A. Wilson.
The purposes for which imprisonment is im. i
posed enumerated. Qmi're, wliethci- in thiscaje
the imprisonment was (.•uei ;ivc or punitive, /*
Practice— Serviceof papers— Irregularity, ffk I
may object to —Setting aside procuudingH— Atlir
matiou by Quaker— Taken before jilaintiffi |
attorney — PlaintilF, a surety and joint maker,
taking uji a note before due, so as to take priv
ceedings in insolvency against joint maker. HI
horn V. Milb et n!., 5 L. J. N. S. 41. -C, C.-
Hughes,
The mere intention on the part of adelAirn
dispose of his property, and the apprehension a
his sole creditor tliat he will not tlien, altliniil
perfectly aide, and owing no one eLw, my iL
creditor, does not bring the debtor within »:,
3, clause r. of the Act of 1864. Sliarpe ft a/,, v,
Matthews, 5 P. 11. 10. — Chaiiib.— Gwyiine.
In intituling affidavits for an attachment lU'
der this act, form F. should be followed h
Section 3, sub. 7, is complied with „,
the creditor or his agent who swears to the i,™
is also one of the two persons testifying to &
facts and circumstances relied on as coiistitutiii; j
insolvency. / b.
A trader having ceased to meet iiis liabilitieii I
a demand was served upon him on SIst Jannin,
1865, requiring him to make an assignment (i I
February 6th, (the 5th being on &, Sunday) auonk I
was granted for and an attachment issued. ODes'I
the affidavits tiled on the application for art*!- j
ment was sworn to on 4th Feo. On an apphi'atu j
to set aside the writ and all proceedings for imfj
ularity, it was Held, 1. That the order fortkj
issuing of the writ was not made too 8ood;1J
That it was imma+.erial that one of the affitol
was ma<le within ^he five days allowed for ptj I
tioning under sub-s. 3, or for making anasijfl
ment in accordance with the demand;3. litl
the attachment should have been endorseil «ii I
a statement that the same was issued by onlerii|
the judge of the county court ; butanaiiitrf|
ment was allowed on p»yjnentof costsbyptej
tifl's ; 4. Objections that the affidavits of t«|
credible witnesses were not filed at the limef
413
BANKRUPTCY AND INSOLVENCY.
414
(\el)ti)tl) I
chcmioBol !
alttaji '
iiay tie
in *:.
ft (ll, V.
luie.
:, ray
sitnit
altlioud I
io the il* !
ving to t!ii i
:oratitiiti!i! 1
st
liabilitie!,
i Jaraw, I
iment IM
^aylauofl" I
led. Oiieiil
for attiA I
lapplicatinl
'sfoiiiKtl
.tofot*]
)o soon; i I
,ie affiWl
[ediorj*!
r anasi?!
.d;3.TWl
[lorseJ'iil
|byoid«<l
;ananw''l
(tabyplaj
Uts oi t«|
[the time''
iMiiina atUehinent, 'tliat tlio proccodiiiKs wuro
lot taken three iiKiiitliM, &c., ami tlmt millicieut
timc'wasiK'tiilK'wetl to (k-feiKlaiit to give notices
n.(mire.ll>ytlioaet lor taking p.o,|ee(linKH on a
v., imtarv assiL'nment, were overnilud. Mi-Iiiikh
;. Wi n- J. N. ^- !•!-'— <-'■ I-'-- '"^wdcr.
Where a trader in Ontario bceoniea insolvent,
and an attadimcnt in insolvency is isaned to tliu
.hcriff of the county in wliicli he resides, the
county iiidge can issue another attachment to
thf sheriff of fti'y ^o>"'ty i». <'|'tario, or of any
district in Quebec, in which tlic insolvent has
^proiwrty. Ik Bear,/, ir, I'hy. 441.
\n insolvent having made a voluntary asaign-
I ment in 1807, compounded with his creditors,
had his goods restored to him, anil resumed his
business with the knowledge of ids assignee and
ercditors, and contracted new debts. It was
lubsetmently discovered that he had been guilty
of a fraud which avoided his discharge, where-
nmn he ahsconded, and an attaeliinent under
ttc Insolvent Act of 18()!>, was sued out by liis
lubsMiuent creditors :- Hehl, that they were
Bititled in priority to the former creditors.
[Buchanan v. Smlh, 17 Cliy. 208.
Secf-'i-orfs V. McArdlc, L. J. N. S 120, p. 453.
3. Assignees.
(a). A[i})inntment o/'.
At a meeting of creditors held to give their
Iviceupon the- appointment of an olKcial assig-
K, it was held that the creditors of the indi-
Idiial partners ha<l the right, as well as the
Beditoi'S of the firm, ti) vote in the choice of an
Liignee. Luxton v. Ilamlltvn and Ducts, 10 L.
1 334-C. O.-Logie.
I Appointraent of agent for a creditor claiming
badrise in the choice of an assignee must be in
wing, and tiled of record. In re Caviphell, 1
, J. N. S. 135.-0. C— Hughes.
[The act of 18C5, sec. 2, does not authorize a
jluntary assigiiment to an olticial assignee in
ky part of either Upper or Lower Canada ; but
(«iis only that it may be made to any olKeial
liguee entitled to take it under the Act of 18(!4,
'Biout comphance with the formalities men-
ned therein. jjiir/ii^e v. CuthbevUon, 17 C. 1'.
|A list of creditors need not be appended to
kissiginiient to an otBcial assignee. JJinijslun
krnihU, 2 L. J. N. S. 299.
iHeld. following Hingston r. Campbell, 2 L. J.
■ S. '-'99, and White v. Cuthbertson, 1? C. P.
B, that a voluntary assignment to an official
" nee must be to one resident in the county
in which the insolvent has his place of busi-
I; but Semble, that the creditors may accjui-
fin an asaignment to a uon -resident official
nee, andtlius constitute him th^r assignee.
Vhirterw LenrmoiUh, ISC. P. 136.
Ifendant's execution was handed to the
: on the 28th June, the assignment to the
iffmadeonthe IGth July, and the meeting
iditors, at which defendant attended, by his
bey, who examined the insolvent and did
pjectto the assignment, and at which it was
M to discharge the insolveut, was held on
August following :--Held, that even if the
creditors hail adopted plaintitT as their assignee,
which did not ajipear, it would not have divested
defendant of his rights under the execution, as
tlicir ratitication of the !USHigninent related back
only to the date of the meeting, not to that of
the assignment. /!>.
Held, that the Fiondon Ixiard of trade, which
was an nrgani/cd body in operation before the
Insolvent Act of 1H()4, had power, though not
incorporated, to appoint official assignees under
that act ; and that such appointment was pro-
perly made l)y resolution. (Jhurcher v. Cousins,
28 (i. H. .'■.40.
The transniis.^ion of a coi)y of such resolution
to the clerk of the County Court, under sec. 4, is
directory only ; and the (uiiission to send it will
not invalidate the appointment. Jh.
A bond to W. H., of, &c., President of the
board of trade of the city of London, to be paid
to him as president of the said board, his suc-
cessors anu assigns, and executed by the sure-
ties, but not by the assignee : — Held, suiiicient,
under sec. 4, siib-s. 2. lb.
(iuipre, whether a defect in such security, or
the aV)3eiiee of it altogether, would avoid the
assignee's appointment. Jh.
Held, that the plaintiff having proved bis
claim before the assignee and having obtained
an order in this court to set aside the insolvents'
discharge in the Insolvent Court, with costs to
be paid to him out of their estate, was precluded
from objecting that the assignee was not duly
appointed Allan v. ilarratt et al., ,30 Q. B. 165.
Official assignees cannot be appointed by un-
incorporated boards of trade formed after the
passing of the Insolvent Act. Xewtonv, Ontario
Hank, 15 Cliy. 283, in Appeal ; iS'. C. in court
below, 13Chy. 6.'>2.
Where a debtor assigns to an official assignee
who has not been duly appointed, but the credi-
tors generally accept and act upon the assignment :
Quiure, whether the irregularity in the appoint-
ment can be set up by an individual creditor as
rendering void the assignment. Newton v.
Ontario Bank, 13 Chy. 652.
The county judge of a county, in which no
board of trade existed, appointed an official
assignee for the county within three months
after the Insolvent Act of 1869 came into force :
— Held, that such appointment was valid under
sec. 31 of the act, although a board of trade ex-
isted in an adjoining county, but had not ap-
pointed an assignee. Blakehj v. Hall, 21 C.
P. 138.
Qiitere, can a board of trade appoint an official
assignee under section 31, after the lapse of
three months from the time when the act came
into force. Ih,
In pleading to a declaration, charging a sheriff
with neglecting to make the money under a ti. f a. ,
an allegation tliat the execution debtor made au
assignment under the Insolvent Act of 1869, to
an official assignee for the county, appointed un-
der the act by the county judge, and that the
sheriff had surrendered the goods to the assignee,
is sufficient, without alleging that no board of
trade existed in the county, or in a i adjacent
county, or that no assignee had been appointed
by a board of trade ; and it would be siuS.cient
\.H
M
'i'-:\.
415
BANKRUPTCY AND INSOLVENCY.
41
Wi
to aver that the asiiigiitnent had bunii inadu to
an ofticiul aMHignuu for thu county, without nIiuw-
ing how thu UMHignuu wan aiiiiointud. /h.
A voluntary aMitignniunt to an oflicial aHMignuu
undur thu hiHolvunt Aot of IH(i4, h. '2, is not
valid unluHi* acoeiitud hy tho assignro. Yiirriiti/-
ton V. Lyon, l'2VA\y. 30H. Suu //;•«»'« v. Wriiiht,
Q. B. K." 'I'. 1874, p. 418.
Every maturial allugation in a hill Hhoidd l>u
poaitivu ; and an allugation, that ho far as thu
plaintifl'ii know, an aMHignuu ' il not aucuiitud
thoa88igninuntuxucutud hyanin^^olvunt, was iield
insuiliuiout. Yarrinijtonv. Lyon, l2C'hy. 308.
(b) What itroperty VihIhIu.
Rights o/ tirtiun.] — The plnintiiT, having held
the defendant in tho suit to liail, reuovuruil a
verdiut for slandur, for enticing away and detain-
ing hia wife, and for asHauTting her. Heforu
recovering judgment he made an aHsigiimunt
under tho Insolvent Act, and he then Mued the
bail on their recognizance, not having yet ob-
tained his tinal discharge. The defoudantH set
up the rights of the assignee : — Held, on demur-
rer, that the plaintiff was entitled to recover,
for tho causes of action, being for purely personal
wrongs did not pass to the assignee. Henddu,
also, tliat the proceeda of tho suit when rocovoreil
could not be claimed by the asaignue, and that
ho therefore could not in any way inturfuro witli
the suit. J-. White v. El/iott vt at., 30 Q. B. S.W.
On the 10th February, 1873, defendanta
obtained an order to stay proceedings until
security was given for costs, on the ground
that the plaintitf had become insolvent. The
declaration contained three counts : 1. On
a fire policy. 2. In trover, alleging as special
damage that plaintiff's business was 8toi)ped,
and no lost customers. 3. In trespass to
goods, alleging similar special damage. No
objection was made in chambers that the
causes of action in the second and third counts
did not pass to tho assignee. On application to
the court :— Held, that the causes of action under
the first and second counts passed to the assignee,
for as to the second, as the conversion, thu
primary cause of action, passed to the assignee,
the special damage dependent upon it could not
be sued for bv the debtor ; but that the cause
of action in the third count did not pass, being
for a personal claim of the debtor independent
of his right of property : — Held, therefore, that
as to the third count the order should not have
been made : that being mmlo without authority
it might be rescinded as to that count ; and
that the action might be stayed on one count,
leaving it to proceed on the others. Smith v.
Commercial Union Insaranee Co., 33 Q. B. 529.
See Alexander v. A. B. A C. D.,5Q. B. 329,
p. 401.
Other Property. ] — V. and J. D. being in part-
nership, J. D. went out, and his father, D. O.,
took his place in the firm. About six months
after this V. assigned to D. D. all the stock-in-
trade, but the possession was not changed nor
the assignment hied. The plaintiffs subsequently
became assignees of the firm under the Insolvent
Aot of 18C4, and of each of the partners. In
an interpleader issue to try their right as against
an execution creditor of V. alone, tliu uxicut,, I
being after thu asifigMini'nt to l>. I)., Imt whrtfl
l)uforu OP after pluintill'M title accriud iii,{ ,A
ap|iuar : llulil, tiiat they iiiuNt nikci'iiI t|.|
tfiuy wuru cluariv untitlud to tliu ^mnU (|k.1|
aulvuH, for dufundiiiit, aa creditor of diif iia,
could not Hui/u thum out of thu iinHsc^iNlMn i
assignucH of thu firm, althougli he nji^^lit h.
right to \"a. aharu of thu prncucdM, if any, ifi,,|
paying tiut partnerahip dubta. II iVj./;, y '
24 q. B. (135.
Tliu title of thu otiicial asaigiu!!' nppnj
under compulsory proceedings (Toca ii(/t, u
thu Act of I8(!4, relate back to tliL am\a
•m\
which ia held to be thu act of insufvunvl
ilia appointment vesta in him only the eiubl
and elfects of the inaolvunt "aa cxi.stiiiL'attiil
date of thu iaauu of the writ of attadmimt, jl
the same nuuinur and to thu saniu extent u'l
a voluntary aaaignmunt undur tlu! iimvisi,© '
the act had been at that ilnlr fxtxuttil m
favour by tho insolvent." Thmiif \. TurNmi
10 C. r. 445 ; ,V. C. in Appeal, 18 (J, I', •£).
Wheru a salu has Ijeen made under an ni^A
turn againat a judgment dul)tor, who aftir tiil
salu makes an aasigument in iiiadlvenuy, U|l
proceeda of tiie sale aru not veated in thti4ij|
aasignee, but go to thu judginciit mditinl
Brandy, liivklc, 4 1'. 11. li)l.— Chiiiiih.-^WilMl
A sherifl' has a right to an inturiiliadtr ji
such a caac, when thu proceeda iirc daimt,i hf
an otiicial aasignee.— lf>.
Knox being indebted to one Kyle, ami Kiil
to defendant, it was arranged that iltfrtiail
should take Knox ivs hia debtor, defendant crAl
ing Kyle with the amount which Knoximeliil
Kyle, and Kyle discharging Knox ; and Kwl
accordingly gave defondant liia uute kiA
amount. This took place within thirty liijil
before Kyle made an assignment in insolvew,!
and his aaaigneo brought trover f(]r the hlA
contending tliat the tranaaction was avuideJItl
sec. 8, Bub-s. 4, of thu Inaolvunt Aot of ISif
but : — Held, not ; for the note never wai Ihiil
solvent's property, and so never passed to il
assignee ; and even if it was a transfer ur»|
ment by Kyle within the act, and so n\ml
this would not entitle the plaintitf to tbeMI
McOrcyor v. Hime, 28 Q. B. ;W0.
The Ici'sc. a under a lease containing a invtuil
no* to .'.sfJig:! without leave, in the (tarMI
form, made n /oluntary assignment iu iiuohiif
on J7* L ^iay, i8()9. The assignee Midi
stocK ia (fade of the insolvents, who mni,
goods merchants, and the purchaser to«l)f
session of tho premises from liiin on the f
May, the assignee also occupying a room i
for the management of the estate : — HeU,4
such assignment was a breach of the corn'
and a forfeiture; for the term passed tsl
assignee under the provisions of the Iiu
Act, and if any election to accept it werea
sary on his part, it was shewn by his c
Magee v. Eankin, 29 Q. B. 257.
The plaintiff purchased barley fromR.tfl
him to consign it to 0. and draw on C, f«l|
purchase money. C was to keep the 1
plaintiff's agent until the plaintitf (hrecw*!
to sell, the plaintiff paying him 8uch»«l
he might require by way of margin to f
417
BANKRUPTCY AND INSOLVENCY.
118
hiniMlf »«»'"*' " f»" '" I""'""' *"'•• *" reinilniiHo
hn mlvaiii'ii (III lt.'B (Iriift, ohtftinoil » diMcount
from tliu •'«»'' "" '''" "*" ""*" Hfcuri'il liy tlic
wareliiiusu reouipt fur thu hurley, wliicli liii
I trainforrt'il to tlio l)iiiik. VVliiUi i'. lielil thu
b»rley thu iilniutitl' iwiiil ti) him jfo-K) iw inar^iii
tolioM it. Tliu harley w(>h b1u[>ik'(1 l»y plaiiitiirH
1 initructiims to Onwugo, to thu ordurof thu liaiik,
whew it wftH sold; mid this hank rocuivud tho
Lruccodn oil "'0 -'"1 l>"*;i!iiihi!r, having pro-
I Ui^mly hud iiDtii'o that tho plaiiitilV owiiud thu
\UM: Atioiif thu 17th NovemiMir ( !. kit tho
leauiitry, ami a" nttachinuiit in iiiHolvuiioy haviiiL'
Itauoil ftgai'ist him, an interpleader wan ilirected
■ to try whether tho halaiieu of huoIi proceeds
llbove the hank's advances hclonged to his
jiisipico or to tho nlaintiff; — Meld, that the
IjUintiff was entitleil to it, for tho harley was
liia, and tho money, tho prncocdw of its sale,
lievtreame into C. s hands, or was mixed with
|ki« general assetH. C. had advanced hy jiayiiij^
IJ.'s draft niori' than tho proceeds of the harley,
lind it wan contended then^foro that there was
|io surplus availaldo for tho iilaintitl'; hut Ifcld,
Ithat tlio plaintiff was entitled to deduct from
Inch ailvaiico the sums paid hy way of margin.
lAfttr ('. had al)scoiided the plaiiititf went to his
loflicetoask ahout his harley, and there saw R.,
Ithe manager of C.'s hnsiness, who went with
Ibim til the hank and had a conversation with
lieoisliier : — Held, that thoir evidence of what
iMwl was clearly adniissihle. Colter v. Manoii,
Kj, B. 181.
Previous to an act of ins(dvuney, certain
jida in which tho insolvent, a defendant in
, suit in chancery, liad an u(iuitahlu interest,
111 iKieii ordered to he sold, and wero aftur-
lanls sold, and the purchase money paid to tho
laiutiff in equity. The assignee m insolvency
jovtd that such moneys he paid into court for
ke benefit of tho general creilitors. It was held
Vtsueh lands were suhject to the order for
in, ami the motion refused with costs, hut tho
lignec was considered entitled to his costs out
I tLc estate, as the (juestion was a, new one, anil
Jproper one for him to raise in tho interest of
" B general creditors. Yale. v. Tollerlon, 2 CHiy.
amb, 49.— VauKoughnet.
An insolvent's reversionary interest in an eatato
ises to his assignee, and entitles the assigneu
maintain a suit in a proper case for the ap-
loiiitment of new trustees, and for an account
I the estate ; but the court refused to make an
dor for the side of such reversionary interest.
iru;/ V. Ilakh, 18 Chy. 72.
i An assignee in insolvency cannot acquire
■iority over a prior vendee of the insolvent by
Tior rtgistration of the instrument appointing
ich assignee. CoUver v. Shaw, 19 Chy. 699.
kn the 10th May, 1873, K. executed a volun-
^ aaaigmnent to the official assignee, who, on
jng told of it, advised a private arrangement
I order to save expense. On the 12th the
■intiff recovered judgment, and issued an
ration against K., to defendant, a Division
prt bailiff, who seized a pair of horses, and
B( a bond for their forthcoming. On the 2n(l
ke defendant, having again taken the horses,
Bertiaed them for sale under the execution.
■ assignee finally received and acted under
J assignment on the 7th June, and claimed the
27
horses from defendant, who gave them up to him.
In an action against dufeniTant and his NUretiuH
for not selling Himner under the execution : —
Held, 1. That the horses p.Msed to the lutsigneo
on the exei'utioii of tho asHignnient, thouuh
ho did not HHseiit to or act under it until tlio
7th June, and that there was no breach (>f
duty, tlii'i'efiire, on ilefiiidant's part in not selling
beforo the elaiiii was niaile. 2. That even it
dufenilimt was guilty of iieglec tho plaintitl' had
HUHtained no damage, for if he hail proceeded to
Hell, the iiHMignee Would no doubt have claimed,
and no beiii'llt could have resulted to tho jilain-
tiir. It,;. in, V. Wriiihl ,l<,l.,ii. IV, K. T., 1874.
Not yet n (11 -ted. Sec YiirrhniUnc \. Li/oii, 12
Chy. .'108, [). 4ir..
Sue //. /!)•(/ V. Di,iiiila.iii, 1 \.. ,1, N. S. 108, p.
42(); I'mixm' v. Afieliir, l(i (!. I'. 12(), p. 427;
liraiul V. nii-kl,', .» 1'. I!. I'M, i). 421); /{,■ Mc-
Kiir.ic, Ml i}. H. 1, p, 4r)0; liniil- nf Mvntreal v.
LilHi; 17 Cliy. 313 p. 420.
(c) Itlijliln, Dtttivs, and [Aahililivt.
l/uthilih/td Acfidiix.] —Held, that an action may
he brought against an assignee for a dividend on
a duly collocated and advertised claim which has
not been objected to. Suiijisdh v. A'cwtoii, 4 L.
J. N. H. 4(i.— C. (.J.— Macdonald.
An otlicial assignee in insolvency sued for tres-
pass in taking and selling goods, is not entitled
to notieo of action. So held in accordance with
tho cases deciding that a sheriff is not entitled
to such notice; but Wilson, J., but for these
deciaiiiiis would have thought otherwise. Archi-
bald v. Jfaldan, 30 Q. B. .W.
W'hcn a defendant becomes insolvent after the
service of tho bill upon him, (hut beforo the time
for answering expires), and the suit is thereupon
revived against the assignee in insolvency, it is
necessary to serve tho assignee with tho bill as
well as with tho order to revive, or an order pro
confesso cannot be obtained. Smith v. Lines, 1
Chy. Chamb. 398.— Mowat.
(toods are renle viable out of the hands of a
guardian in insolvency, notwithstanding C. S. U.
C. c. 29, 8. 2. JuineMon el al. v. Kerr, G P. R. 3,
— C. L. Chamb. -Dalton—C, C. Jk P., Gwynne.
Where the goods of A. having been seized by
the sheriff under un execution against B., had
been handed over by the sheriff to an assignee,
to whom the debtor had made a voluntary assign-
ment in insolvency : — Held, that A. might mam-
tain replevin against the assignee : — Hold, also,
that sec. 50 of tho Insolvent Act of 1859, could
not apxdy against the plaintiff, who was not a
creditor or in any way interested in the estate
of the insolvent. Burke v. Mc Whirter, 35 Q.B. 1.
See VI. 4, p, 421.
Other Cases.]— The assignee has the sole right
to select his own professional adviser, and cannot
be made to change him, except upon reasonable
ground. In re Lamb, 17 C. Pi 173.
Held, under the Act of 1864, that the
county town of the county in which the as-
signment is filed is the place where the aaaiffnee
should call all meetings : that not less than
two weeks should intervene between the first
it
I'
I i,
i *(-
419
BANKKUPTCY AND INSOLVENCY.
i'i
publication of the notice and the day of meet-
ing : that the notice nnist lie jjiiblished in a
newspaper at or nearcHt the place where the
meeting is to he held ; and that all papers and
minutes of proci^edings in insolvency should he
forthwitli hied and entered of record in the
proper officj. In re Atkins, 2 L. J. N. 8. 25.—
C. C— Jor.es.
A demand for wages was nia<le as a preferred
claim to an assignee. The creditors at a meet-
ing passed a resolution authorizing the a-ssigneo
to pay all claims Tor wages, but the assignee
refused payment of this claim as made. At; this
time no dividend sheet hatl lieen prepared. A
summons was subsetiuently issued by the county
judge, calling on the assignee to shew cause why
he should not pay the claim, and the assignee not
appearing, evidence was taken before tliq judge,
and an order made the payment fortliwith, with
costs, of a sum less than the original demand. The
assignee afterwards paid the claim as reduced,
but refused to pay any costs ; upon which the
judge's order was made a rule of court, and exe-
cution issued thereupon against the goods of the
assignee. Upon his ap])lication for a writ of
prohibition to prohil)it further proceedings on
the writs or orders, &c. : — Held, 1. Tl>at tlie
assignee should not have been ordered, so far
as appeared, to pay costs ; 2. That tlie power
given to the judge by s. 4, sub-s. 16, of the Act
of 1804 to control the as.signcc, is in the nature f>f
giving him persoiiiil directions as to his duties,
enforcealjle by imprisonment on default, but
that the judge has no power to enforce his orders
by judgment and execution, though he might
possibly compel an assignee to pay costs incurred
Dy his disobedience, by makiiig it a condition
that he should p.ay them before he could be con-
sidered purged of his contempt ; and tliat tliu
only remedy of the assignee was to apply for a
prohibition, /n rv Vlnjlnini and the Juihjc of tlti>
County of El ;j ill anil Mitnn, 2 L. J. 2v. S. 133. —
C. L. Chamb. — Kichards.
J. was appointed ofHcial assignee of B. under
the Insolvent Acts of I8()4, ISd."). After tlie In-
solvent Act of 18()8 came into force, the creditors
removed him and appointed aiiotlier assignee in
his place. Before his removal, J. rendered an
account of his receipts and disbursements, with
which the creditors were dissatisfied, and pre-
sented a petition t'* the judge to examine the
account, to settle and adjust it, and to order J.
to produce the books, papers, and vouchers of
the estate, .and to pay o'/er all moneys which
might be found to be in his hands. Tlie judge
held that the assignee, having alre.idy rendered
an account, must ])e t.akeii to have ' ' fully
accounted " within the meaning of the act of
1864 ; that he had no jurisdiclion over the
removed .assignee under tliat act ; and that he
could not proceed under the act of 1809, as the
relief sought was not a " m.atter of procedure
merely," and he dismissed the petition : — Held,
on .appeal, 1. That the summary remedies given
by the act of 180!) are applicable to assignees ap-
pointed under the acts of 1864 and 1805 ; 2. That
the judge had jurisdiction, even under the act of
1804, to examine into and decide upon the cor-
rectness of the items of an assignee's account,
and to adjust such account ; 3. Tliat this juris-
diction exiats over a removed assignee until he
has '• fully accounted " for his acts and conduct
while he remained wsigiiee ; 4. That an .assignee
has not fully accounted within the nieaiiini;,/
the act by rendering .an account iiioroly, \- j
tliat the expression necessarily means aecnu'iitij,
and paying over ; 5. That the di-.tios df j|
assignee arc to conform himself to tliu liw . j^:
the performance of these duties may ,li„jf.
either act be summarily enforced by the jufl,» 1
and a removed .assignee remains suliject to t|i|
jurisdiction until he h.as fully accounted fdrul
acts and conduct while he remained assit.Ti» I
/« rv Botsfonl, 22 C. P. 65. ^
An assignee in insolvency employed a tirm of I
attorney to pcform certain services in ooniiecti,,- 1
witli the estfite. Subsequently he I'lsignnl it' I
position and gave these attorneys the iiKnnvt
the estate rem.aining in his haims, witli'iij.i
struetioiis to pay their own costs tii'st, andtlial
to hand the balance to the new iissii/ue. Tlliil
they did .and rendered their bill of co>i>:— HeHl
that the estate of the insolvent wa.s, within tk I
meaning of C. S. U. C. c. 30, s. 38, the"pam|
liable to pay," though "not eliargeaUeasaiiriii.'
cipal ;" and the second .assignee was entity i
have the bill taxed, hi rv A. <(• B., lini,{'f il
r. K. 68.— C. L. Chamb. -Daltuii,C.r.d>,r
A voluntary assignment to an official asskiifjl
under the Insolvent Act of 1804, s. 2, is ml
v.alid unless accepted bvthe .assigueu. I'lmimJ
t(,i> V. Lij^.n, Vl Oliy. 308. '
M. deposited a sum with the plHintilT". fiil
soon afterwards absconded. The iiLaiutili'slmi|
giveiihim a receipt, statingthenioney waspavalltl
on the production of that document. Awritiil
attaclimeiit issued .against the depositDr's ik. [
l)erty as <an .absconding insolvent ilelitur nnirl
the insolvent acts ; .and the defendant hittlew»|
appointed otHci.al .assigaee. He (kniamkil tin |
money witliout producing the receiiit, «lii(i
never came into his possession, Imt tliu jilaintiiil
had notice of the attachment and of hi.s a|i[«iii', j
nient. He then sued the pl.aintifl's for tlu iiniiifr, I
The action was restr.ained by .an interim inj»|
tioii issued in this suit, in which tlie i)l,iiiitij|
required the defend.ant Little and aunthertisij|
ant of the money, whose claim aeerueil alterikl
attachment, to interplead. Tliu court, uiiifl
the '3ii'cum8tanees, — Held, that the plainril
ought to have paid over tlie money to ikl
assignee, and decreed that they slKnild [uvil
with the costs occasioned to tlie estate liytisl
refusal. Bank of Montreal v. Litlh, ITChy.JUf
Advertisementt by assignees in insohomyitl
the sale of property of the insolvent shoiiijifl
scribe the property and state the title mtliil
distinctness required in eiiuity in the t»il
advertisements by trustees and other oltiiiil
(fJiivll!/ V. yfosf, 18 Chy. 33.
In case of a siile by an .assigiice in iiisolrai
being open to objection on the part of thed
toi-8, the remedy of objecting creditors is l;^
plication to the County Court judge, imtl
in chancery in the hrst instance. Ik
Remarks as to the conduct of an othci.il asifi
in assisting an insolvent, who had no asstisa
no expectation of any, in a fraudulent att<^
to take advantage of the .act, .and .is to"
liability incurred thereby. TIwiiim v. 1
P. 11.— C. L. Chamb.— G Wynne. Xol.l
reported.
See Yalev. Tollerton, 2 Chy. ';'lauib.49,ftf
4?)
421
BANKRUPTCY AND INSOLVENCY.
422
4. Rir/hts of Mortijwjtvs.
Thu (lefeiulant as oiiicial assignee, liaving taken
nossessionof certain gooils anil premises, and being
1 Jued by a mortgagee, claimed a ileduetion frmn
the plaintiff's ilaniages for rent, insurance, and
I lJJ^,j piiul by him out of the proceeds of sales : —
Iseinlilt', that it should have been allowed only if
I due when he took possession ; but this did not
lippcar, anil under the eircumatances the court
I retoeii to interfere. Mathers v. Li/nc/i, 28 Q.
\i 354.
I All official assignee sued for trespass in taking
|mj selling goods pleaded (relying upon the "lOth
ectionof the Insolvent Act of 18(i!)), that l)ef ore
he writ of ."xttaehment hereinafter mentioned,
Be C. mortgaged the goods to the plaintiff : that
fhilc said goods were in C. 's possession, the
mortgage providing that he should retain them
ntil default, the sheriff seized the goods under
1 attachment in insolvency issued at the suit of
i, ami placed them in the custody of defend-
nt, being an official assignee anil guardian, and
rfcndant l)eiiig afterwards duly made assignee
('.'8 estate, sold the goods— which are the
Be^'ed trespasses :— HeUi, a b.id j)lea. for nal^
egativing a default bv C. ir!i'ii\ liie attachment
!»'••!, tut vjiieu the defendant received and sold
8 goods. Airhihaldv. Halil(t)i,30 Q. B. .SO.
Semhie, that the section referred to only re-
aiiis a suit by creditors who have proved, or
I prove, on the estate, and does not prevent a
ortgagee from suing in trespass for a wrongful
king of the goods. //).
I On the sale of a woollen factory andmachinery,
I was stipulated that, until the purchase money
Duld be fully paid, the vendees were not to
nove the machinery. The vendors afterwards
icutcd a conveyance to the purciiasers, and the
ler, to secure the unpaid purchase money, exe-
1 a mortgage which purported to be of the
»r)'onl}', and did not mention the machinery.
(purchasers resold, the vendee having notice
llhe covenant, and the vendee subseijuently
iHune insolvent : — Held, that the covenant
Iffiist removing the machinery remained in
t, and that the vendee's assignee in insol-
cy.wasnot&tlihertyto remove tlie machinery
[ Kason of non-registration under the Chattel
rtgage Act or otherwise. Crairford v. Flml-
, 18 Chy. 51.
here goods were mortgaged, and after de-
tremamed -with the mortgagor, who made
isignnient in insolvency, and handed them
r to his assignee :— Held, that the mortgagee
"^ not take them out of the assignee's pos-
Bn, but must enforce his claim under the
Wvent Act, and that he was a trespasser in so
'"Itbcm. Ihmhk v. White, 32 Q. B. GOl.
elaration for entering a mill and taking and
tetiug plaintiff's goods. Plea, in substance,
^c plaintiff's claim to the goods and mill
Sunder a mortgage made by one W., who,
the grievances complained of, made an
-nent under the Insolvent Act of 1869, to
ant of ,il uis estate and effects, ir.iduding
juU and ^oods, subject to plaintiff'a mort-
is that \\. was then in possession of the
T«s, and such possession was tr.nisf erred to
aut, who took possession as such assignee ;
I (Q 11^^^^?'' ** assignee defendant haa in no way
lamb. 'l.>,I^*'^^mred with the mill or goods ; that the plaiii-
i iusnlvoncysl
1,'cut shiniliiil
title witli*!
I ill the citil
I iither ofeiii|
|e in iiiSfl'*
ptofthet«
jditoi'sislij^
lice, notb;!
Ih.
otbcialjssi^
id no asscB^
iduleut atif
laud as toj
line.
Xci;
tiff's alleged righ. of property can be determined
))y the county judge ; and that this court has
no jurisdiction to try the same; — Held, on de-
murrer, plea good, the plaintitT, under the facts
stated, being r-.'stricted by sec. TiO of the Insol-
vent Act of 18(>!), to the remedy there given : —
Held, also, th;it tliat section was not beyond the
power of the l)omiiiioii Parliament as being an
interference witli property and civil rights, but
was within tiieir exclusive authority over bank-
ruptcy and insolvency. Crombie v. Jackson, Si
Q. B. 575.
See, Re HiirM, 31 Q. B. 11(5, infra; Gordon v.
Ross; 11 Chy. 124, infra.
See VI. 7 (a), p. 430 ; VI. 7 (b), p. 437.
5. Proof of Debts.
(a) Creditors holding Security.
The insolvent, in Febniary, 18(58, executed a
mortgage on lands and nn assignment of goods
to triK^hvc fv>v the benetit of B. (i. & Co., and
other creditors named ; and in August following
he made a viduiitary assignment under the
Insolvent Act. The trustees after this assign-
ment sold i)art of the real estate under the
power of sale and received part of the proceeds
of the goods. B. (i. & Co., ;hen claimed to
prove against the estate for the balance due to
them above what they had received from tl fc
trustees. The official assignee held that they
had lost their right, having elected to look to
their security instead of bringing it in under
sec. 5, 8ub-8. 5, of the Insolvent Act of 1864;
and hii-' award was eonfirined by the county
judge on appeal: — Held, Morrison, J., diss.,.
that the mere fact of the sale did not necessarily
exclude, them from proof, but that the securities
gold might yet be valued, and if the estate had
not been prejudiced or were recompenLeil for
any loss thereby, they sliouhl still be allowed to
prove. In re JInrst, 31 (J. B. 116.
Where a mortgagor becomes insolvent, the
mortgagee is not compelled to go in under the
act, but may proceed under his power of sale.
Gordon v. 7i'ooN, 11 Ch/. 124.
See Ifender
. 382.
» - ^'Jncdonald, 20 Chy. 334,
foj Preferential Claims.
A deman I fi ■• wages was lUiide as a preferred
claim to aii iif;f rgiiee. The ereditorb, at a meet-
ing, passc'i a rvisolutioii authorizing the assignee
to pay all claims for wages, but the assignee
ret used pi'ynient of this claim as made. At
this time ao dividend sheet had been prepared.
A summons was subsequently issued by the
county judge, calliujr ov. tVe assignrs to chew
cause why he should not pay the claim, and the
assignee not appearing the evidenc>» was irJren
'iiefore the judge, ana an order m.i.'.j for tl.e
payment forthwith, witli i ost", <',i a sun\ les',
than the original deinaud -.— Held, that t'le
direction by the' creditors to \'\ cht jC prjferen-
tial claims, withoutimtting uhe.i: ou th>' diviil lud
sheet, was illegiil. In re V'"',ihr:rn i} i the J'\ Ige
of the Co'r.it.f nf i:i:r>K and '.V:\n.._ ' , i. J. T',. 8.
i33. — C. L. Chamb.— ilithardt,
423
BANKRUPTCY AND INSOLVENCY.
i%
Defendant, in consideration of the yearly-
rents, covenants, and conditions in the lease
contained, leased certain premises to one M. at
an annual rent, and as one of the covenants or
conditions, in consideration of which the demise
was made, after reciting that M. had agreed to
pay 3700, by tvay of (uldiHonnl rent, for the pur-
chase of the good-will of the demised premises,
M. covenanted to pay the $700 in ten quarterly
payments of $70 each, with a proviso that in
case of forfeiture of any of his covenants, the
said $700, or the balance thereof, was to become
at once due and payable hy imiy of rent, with a
further covenant that if the term granted should
be seized under execution or on attachment
against M. , or if M. should make an assigimient
or become bankrupt or insolvent, or talce the
benefit of any Insolvent Act, the then current
quarter's rent should immediately become due
and payable and the term become void. M.
failed to pay any portion of the $700, and after
the accrual of the third quarterly payment
became insolvent : — Held, that defendant had
the right to distrain upon the goods on the
demised premises for the three quarterly pay-
ments of $70 each that had accrued due before
the insolvency, but that, notwithstanding the
dififerent provisions contained in the lease, he
could not, having regard either to the common
law, the statute 8 Anno, c. 14, s. 6, or the 14th
section of the Insolvent Act of 1865, distrain for
the whole $700. Griffith v. Bromi, 21 C. P. 12.
The 81st section of the Insolvent Act of 1869
restricts the landlord to one year's rent, even
where he has distrained for more before the
insolvency of the tenant. Griffith v. Brown,
21 C. P. 12, distinguislied. Mama v. ItamUton,
in appeal, 22 C. P. 411, reversing the decision
of a P. in 22 C. P. 190.
See Re Fair and Baits, 2 L. J. N. S. 216, p.
428 ; Re Ileydm, 29 Q. B. 262, p. 428.
(c) Partnership Debts.
The appellants, in the matter of C. & Co.,
insolvents, had a claim upon a note made by C.
& Co., payable to C, one of the firm, and by
ivim endorsed to the appellants. They proved
against the firm on the 3rd July, 1869, but after
wards withdrew it, and proved on the lltli
January, 1870, under sec. 60 of the Act of 1869,
specifymg and putting a value on the sepai-ate
liability of O. : — Held, affirming the decision of
the county judge, that the appellants, under the
act of 1864, could not rank both upon the
separate estate of C. and on the estate of the
firm, but must elect ; but that they might prove
against the joint estate for their whole claim,
without deducting from it the value of C.'s
separate liability : — Held, also, that tlie appel-
lants could treat the payee and endorser as
having incurred a separate liability by his in-
dorsement, distinct from his joint liability as a
maker : — Held, also, that the Act of 1869 could
not apply, for the case was pending before it,
and the (][uestion in dispute as to tne right to
prove was not a matter of procedure only,
exempted from the exceptions in the repealing
clause. In re Chaffey et al., 30 Q. B. 64.
The doctrine against double proof applies
only when both estates are being administered
in lUBolveacy, A creditor who has proved in
insolvency upon a promissory note made by v
insolvent firm, can prove as a creditor in «
administration suit against one of the ntatii,
deceased who has separately endorsed the m i
Re Baker, 3 Chy. Chamb. 499.— Bi>y,l, j/,,,,'.
The rule in equity as well as in bankniMoT I
is, that the separate estate of a partner is to (» I
applied first in discharge of his separate (letof
and in ap^)lying this rule, money paid by cowtt.' I
ners on a liability created by the fraud of the part. I
ner towards them, is treated as a separate 4ik I
provable and payable pari passu with the otter I
separjite creditors of such partner in case of U |
death insolvent. The mere liability so frandj. I
lently created cannot be proved against the Ben! I
arate estate as a debt until the liability is mf I
or until something equivalent to payment taks I
place. Where the fraud was in the use of tie I
partnership name on bills, the other partners k I
coming insolvent, the holders of the billsprovfil
them against the partnership estate ; the assiuKt I
in a suit for administering the separate «taij|
of the guilty partner claimed to prove theamomtl
against the separate estate ; but the mastal
restricted the proof to the expected (hvi(leD,||
from tlie partnership estate and the sepaijid
estate of the surviving partnei-s ; and the cfnutl
held that the assignee was not entitled u I
prove for a larger sum. Baker v. DmvljanL lil
Chy. 113. ■
See Allan v. Oarratt, 30 Q. B. 165, p. 4^
(d) Other Cases.
Debts mustibe proved before the assir...
not before the judge. In re Stevenson 1
N. S. 52.— C. C— Logic.
Two assignments were made by J. & C. P. s I
the 1st and 5th of June, 186.', to the plainti.il
creditor, for the benefit of ci editors. Onthetel
of June, 1865, defendant, mother creditor f(|
J. & C. P , obtained judgme it against theniai J
placed a fi. fa. in the sherift'^ hands, au'ldiiiiij
1st July, 1865, he also c.uied a writ of attitk-I
ineiit, under the Insolvent Act of ISW, tol«I
issued against them. I'lip loods assigneii i\
plaintiff were seized under th fi. fa. :-Htli|
that the defendant, although the aiu:
creditor, was not put to Lis eleitiou, bntncjkl
proceed in insolvency as well as upon his li. i'«
Thome v. Torrance, 16 C. P. 445. See.? f.ir
Appeal 18 C. P 29.
The insolvent, a miller, agreed to grind Tkl
for the claimants, and to deliver to them a biMi
of Hour of a specified quality for so manyb
of wheat, and he thus became liable to dei
to them 955 barrels of flour, as eqiiivalenlii
wheat received by him and made awaywitli>:
Held, that this was a bailment only of the win
which remained the claimants', to the insolvalj
that such bailment was determined hy the a
version of the wheat, so that the claim
might maintain trover for it either as wteilj
as flour if ground ; that they miglit waiver
tort and sue for the value of the gnodi •'
they should have been delivered; and ttJtl
claim therefore was provable as king a i
within the Insolvent Act, not a claim fori
quidated damages :— Held, also, that « clwlj
compensation as to a certain number of
not of th« quality agreed for was clearly jd
BANKRUPTCY AND INSOLVENCY.
not be
First count, on the covenant for
■ a deed of three lots of land
425
,„, nnliatiidated damages, and could
Declaration,
bvdef^mlanrto plaintiffs, alleging that at the
time of making the conveyance, defendant had
Znteil one of the lots to S. Second count, on
L covenant for quiet possession m the same
Teed Breach, that before making it defendant
had mortgaged one of the lots to S. in fee, and
XrwardsS. proceeded against the plaintiffs in
r-hancerv and foreclosed his mortgage, by which
£ pSiffs lost this lot Third count, that
defendant being possessed of a lot of land, mort-
eaiKd it one S. for £2o8 m fee, and afterwards
*;Sveyedhis equity of redemption m tins and
other lota to the plamtiffs m fee, for §22, 400, be-
' fore then advanced by plaintiffs to defendant,
i J in this ' •"■ . . eyance covenanted to pay off the
' mortBaae to >., and indemnify plaintiffs against
I it' but that he neglected to do so, and S. ob-
' tai'ned a decree of foreclosure against the plain-
I tiffs whereby they lost their security and the
land ami were put to costs. Fourth count, com-
mon' money count. Plea : that after the time
when defendant is alleged to have become in-
debted and liable to the plaintiffs, and after the
I Insolvent Act of 1864, defendant made an assign-
laient under it, and in his schedule the alleged
IdaiP' pf tsit xintiffs, which was then, if they
daim, provable against defen-
Idant'o . e, v , included ; and that afterwards
Idcf ndaiit dul obtained an absolute discharge
Ir.iler said Act ir»,;n the claims of his creditors,
Mcluding the olaintiffs, which was duly con-
ffoiied;— Held, plea bad, as to the lirst three
iwunU; for the plan, tiffs' cUini under those
joounts could not. uniier the Act of 1864, have
Ibeeii proved against def jndant's estate— not be-
lisg a debt due and payable, or due but not then
iMyable, nor upon a contract dependent on a
Bndition or contingency which had not happened*
Kforethe first ('.ividond, but for unliquidated
nages— and the discharge therefore did not
lilease it. Burrowes et nl. v. DeBlaquiere, 34
498. See Perr'm v. Hamilton, 5 C. P. 57 ;
Ifoorfy V, BuU, 7 0. P. 15, p. 396.
The creditors of one P., oi. 'u, "vent, con-
mted, by an agreement, th.-t t'le j..' ' *;ift', as
lardian of the estate, and thi' d'-ic.i'.ia. . should
certain timber manufac*-.. red ]>y ...e insol-
Ijnt, and pay defendant :■■ ^ h« proceeds
1,500, which he claimed, I'.o'. ■> h v ant giving
1 the guardian his bond to repii^ ' . same, or
»m;ich as defendant might not I't) j.it-.tlei' to;
ifendant (it was said in the agreoaent) claim-
; such timber, or a lien on it an I the credi-
B insisting that the estate owned <,r had some
' a thereon. The bond recited this ufjreement,
the condition A'as that defendart should
ay such portion of the $5,500 as he should
I be entitled to. The plainUff f.ied on this
pd, averring the sale of the uimber and pay-
hit to defendant of the '4i5,50O; and that
jendant was not entitled tj the same, but had
1 repaid it. Dcfendiint p eadod that he duly
iWished his right to the ; r;,.'"^C<J l>v 'ding with
Jassignee the particulars . ' hi" . lmiu ucf'^lo,
ffverifie'', as provided by ;.u j'nsolv.dt Act
[166!i The pii>i:;tiff replied sotting out the
'.culars of defendant's c'.ain' p,nd vevification
flf (which shewed li Ia; ^o the claim in
tion). and allpwd that such claim had not
426
been placed on any dividend sheet, nor in any
manner adjudicjited or awarded upon. To this
the defendant rejoined, that it had not been
contested or objected to, and the plaintiff, as
assignee, had not prepared any dividend sheet of
the estate : — Held, rejoinder good ; for that, look-
ing at the position of the parties and the agree-
ment, the meaning of the bond was, that defen-
dant should repay what, after a contestation of
his claim, it might appear that he was not entitled
to rank for ; and the action, therefore, was pre-
mature. Hall V. Dunsford, 32 Q. B. 1.
By an agreement between a debtor and one of
his creditors, the latter agreed to accept, by way
composition, certain notes of the debtor, payable
at specified dates ; and it was provided tnat the
debtor should also give his note for the whole
debt, and that if he were guilty of any default
in paying the composition notes, the creditor
should rank on his estate for the whole debt.
The notes were given accordingly, the debtor
made default, and afterwards was proceeded
against under the Insolvent Act of 1864 : — Held,
that the stipulation as to the whole debt was not
illegal, and that there having been default before
the insolvency, the creditor was entitled to prove
for the whole debt. In re Mcliae, 15 Chy. 408.
Where a wife joins in a mortgage, she is not
entitled, on the death of her husband insolvent,
to have the debt paid in full out of the assets to
the prejudice of creditors. Baker v. Datvbarn,
IC Thy. 113.
See Dickinson v. Bunnell, 19 C. P. 216, p. 429.
(i. Operation of Erecutiont.
[<SVfi now the Insolvent Act of 1S69, s. 59.}
Where an attachment under the Absconding
Debtors Act was received by a sheriff and acted
upon, and afterwards writs of fi. fa. were placed
in his hands, and he subsequently received an
attachment under the Insolvent Act of 1864 : —
Held, that defendant's property passed to the
official assignee, but that he must give the
execution creditors the priority to which they
would be entitled. Henry v. houglass, 1 L. J.
N. S. 108.— C. C— Jones.
Judicial proceedings and statutes take effect
'.11 law from the earliest period of the day upon
which they are respectively c>riginated and come
into force. M. recovered a judgment and issued
a fi. fa. goods against R. The writ waa g-^ven
to the sheriff at half-past ten and a levy made
about 11a. m. On the same day, but after the
levy, C. sued out against E. an attachment in
insolvency, which the sheriff received at 11.30
a. m. On the same day, also, the Insolvent Act
of 18()5, came into force {the Royal assent being
given thereto on the same day, but not till the
afternoon), by which in effect this execution,
unless thereto/ore issued and delivered to the
sheriff, was postponed to the attachment : —
Held, that the fi. fa. could not be considered as
having been so issued and delivered, and there-
fore, by virtue of the act, the attachment pre-
vailed over the execution : — Held, also, that the
execution creditor was not entitled to any lien
for his costs. Senible, that the issuing of the
attachment was a judicial act, and by it the
property of the insolvent vested in the assignee
by relation before it was seized under and before
w
i
-lit
■■!*.
I
427
VNKRUPTCY AND INSOLVENCY.
42S
any lien attaolied 'ly virtue of the execution.
Convera- et al. v. M'due, 16 C. P. 1G7.
Byjee. 13 of the Insolvent Act of ISG*), tlie
divojting of any lien or jjrivilege, (i. e. priority
of right) extcnda only to the levying upon or
'jcizing under the execution, not to the sale there-
under. In this case an execution had been
placed in the sheriff's hands on the l.'itli March,
1866, and on the 26th a sale thereun<lcr, com-
menced at 10 a. m., was completed at 11 .a. ni.,
at which hour a writ of attachment was placed
in the sheriff's hands against the defendant: —
Held, that the attachment could not prevail
over the execution. Converse c. Michie, 16 C.
P. 167, distinguished. Wlii/te v. Tread well, 17
C. P. 488.
Proceedings in compulsory li(juidation taken
after the execution of an assignment for tlio
benefit of creditors not made in accordance with
the Act of 1864, render it absolutely void as
against creditors of the insolvent, so as to let in
intermediate execution creditors. Thome v.
Torrance, 16 C. P. 445.
Held, affirming the previous case, that the
assignment was an act of bankrupt ind void,
and could not be set up, on the issue •■ned, for
any purpose ; and that, therefore, the , ' ■ ' nt
the execution plaintiff, though petitic.
solvency, could, notwithstanding his prui":"- -vgs
in insolvency, founded on his judgment a. '
and the assignment, enforce his execution against
the debtor's estate, to the postiiouement of tlic
rest of the creditors. Hagarty, J., A. Wilson, J. ,
and Mowat, V. C, diss. .Semble, that on appli-
cation to the proper court, defendant might have
been restrained from asserting any rigiifc under
the execution at law. T/ionie v. Torraner, 18
C. P. 29.
On 30th January, 1865, AV. B. executed V)efore
a notary public in Lower Canada, to tlie plaintiff
Rose, an instniment whicli purported to be an
assignment under the act of 1864, but which
was infonnal in several particulars. On the
24th of February following, defendant issued
execution against the goods of W. B. and gave
it to the sheriff". On the 10th of Marcli follow-
ing, the other plaintiffs issued an attachment
under the Insolvent Act, under which an oHicial
assignee was appointed by the county judge, and
on the same day the sheriff seized the gooils of
W. B., after the issue of the attachment, but
under the defendant's execution : — Held, that
the execution must prevail ; for that the subse-
quent proceedings in insolvency avoided the
assignment to Rose, and the execution, being in
the sheriff's hands before the issuing of the at-
tachment, bound the goods at conmion law fi'om
its date, and under the statute of frauds from its
delivery to the sheriff. Hose et al. v. liruwu, 16
C. P. 477.
An execution was delivered to a sheriff against
the goods of the defendant, upon which he seized
certain goods. These goods were claimed l)y the
guardian in insolvency of the estate of the de-
fendant, against whom a writ of attachment
under the Insolvent Act had also issued to
the same sheriff, The sheriff applied for relief
under the Interpleader Act : — Held, that under
28 Vict. 0. 19, 8. 2, he was entitled to protection,
and an issue was directed. Barns v. Steel, 2 L.
J. N. S. 189.— C. L. Chamb— A. Wilson.
A stay of proceedings was given to a sheriff fn
an execution in his hands by the attorney for th
cxccutidu creditors :— Held, tliat the LXeiuti„„'
under whicli they claimed priority over an (ittitjji
assignee, lia<l not been jilnred in tlir 4,,-;j"
Iiand.^ for e.irnition until too late t(i "ivo tlL
l)riority as ngardcd the balance due" tlicrci.n'
the assiginiicnt liavingbocn made witliinSOdav-
after the time the writ was given to the shcnff
for execution ; Imt that the exectition ert'ilitim
were entitled to their costs of suit to ho rir„VHi
as a privileged claim, /n re Fair and Buits '^ I
.J. N. 8. 216. ~-C. C— Logic. "^
■Tudgnient creditors having executions in tit
sheriff's liands under which a seizure hail 1^^
made, signed an agreement giving the dufenilant
an extension of time for payment on certain
conditions therein mentioned. I'liwarils ol
thirty days afterwards defendant as.signed under
the Insolvent Acts ; tlie conditions of the anee-
nient having been so far performed : ~ Helil, 1
That the writs were not in the sheriff's haiiili
for 'execution, and that the assignment made
more than thirty days after their delivery to the
sheriff took priority. 2. That the .seizing credi.
tors liad no lien for their costs under ss. H n
1 3, of the Act of ' 865, the lien there given aiiiilv'
iug solely to the law of Quebec. [Butseeneit
ease. ] .1. Tiiat the sheriff had no lien or daim
on the goods seized for his fees. /)< n Rim j
r. \\. 3<J4.^Ch.imb.-J. Wilson.
Held, overruling the above case, that under
sec. 13, a judgment creditor who had an execu-
tion in the sheriff's hands at the making of tie
assignment, was entitled to rank for his costs oi
the jud''ment as a privileged creditor agaimt
the ins(il\^ent. In re Ilei/den, an /nmlini 23
Q. B. 262.
Defendant's execution was handed totheslicrif
on the 28th .Tunc, the assignment to the [daintif
ni.ide(m the Kith .Iidy, and the meeting of cro4
tors, at which defendant attended, by his attnniev,
wlio examined the insolvent 'uid did not object
to the assignment, and at whicli it wasasrecii
to discharge the insolvent, was held na iSti I
August fidlowing : — Hehl, that even if thecreili-
tors hail adopteil plaintiff as their assignee, wliicl I
did n(>t appear, it would not have divested dd'cn'
dant of his rights under the execution, as theii ,
ratification of the assignment related liack nulvto
the date of the meeting, not to that of theassiji' j
ment. McWIiirter v. Learmoutli, 18 C. P, 13d
M. , under a ti. fa. at his owni suit against P., I
which was the first in the sheriff '.s liaud!,pir' I
chased certain land in Septemlier, 18()7. O.bil
in April previous made a vf)luiitary assignnieti j
uniler the Insidvent Act of 1804, to anntficiilj
assignee, wlio claimed the proceeds of the sale, j
under tlie Amending Act, 2!) Xkt c. 18, s, l'.
M. claimed a conveyance from the sheritt', creifr
ing the purchase money on his judgment Bfl
court, under these circnmstimces, di8ch.irj«i|
with costs an ajtplieatioii by M. for a mamli
to compel the sherifl' to convey, to wiiichtkj
assignee yfim no party. //( (v Mojfiitt mid I4|
S/ierifoflhe Connli/'of Yorl..; 27 Q. B. o'l
The plaintiff issued a ii. fa. lands on tlie'il
June, 1865, and renewed it from time to till
until 4th June, 1867. On 30th March, \U
defendant obtained his discharge in insnlviDitl
Plaintiff had proved his claim for the full amoial j
429
BANKRUPTCY AND INSOLVENCY.
on tlic'tij
Ime til tial
llarcli, ISSil
1 iuBolvenclJ
I [uU aliKxml
f the imlgment in the Insolvent f 'nurt, and liad
nlver attempteil t(j take any proceedings under
the writ which lie refused to withdraw, although
miueste'd tu do so. The court set the ti. ia.
Lille with costs. DivkbiMii \. liniiwll, IOC.
r. 21t).
When a sale has been had under an execution
affiiiwta'ilebtor, who after the sale makes an
assieim'eiit, the proceeds of the sale are not
vestetl in the official assignee, but go to tlie
iudL-ment creditors, liraiid v. likl:!,; 4 V. W.
'l91*-Chaml).-A. Wilson.
Held under ace. 13 of the Act of 18()5, that
u-iiere before the assignment the money hail been
made by the sheriff under a ti. fa. against the
insolvent, the execution creditor was entitled to
it ■ for that the section applied only where, but
fur its provisions, a lien would have existed on
the iiroperty in (piestion at the execution of the
issifmment, and not where it had been converted
into" money which belonged to the execution
crethtor. Held, also, that under the circuni-
Sfiuces of this case, the money must be treated
ig received under the execution. Sliirlnir ,t til.
y. McDowjall, 29 Q. B. 388.
When an assignment is made under the Insol-
keut Act of 18(i!l, it is the duty of a sheriff, who
has seized goods under a ti. fa. against the insol-
vent, to surrender the goods to the assignee,
jvin" the execution plaintiff" to assert his
rivilege for costs, if any he has, in the prc)-
tlingsin insolvenej'. lUnbhi w I tall, 21 ('.
', 138.
In pleading to a declaration, charging a slieritf
itli neglecting to make the money under a
/■(I. an allegation that the execution debtor
iic an Msigninent under the Insolvent Act of
1869 to an oificial assignee for the county,
Kiinted under the act by the county judge,
' that the sheriff had surrendered the j^'oods to
; as-siguec, is sutlicient, without alleging that
board of trade existed in the county, or in
ailjaceut county, or that no assignee had been
linteil by a l)oard of trade ; and it would be
cient to aver that the assignment had been
jtoanotiicial assignee for the county, without
iwing how the assignee was appointed. / h.
Vliere, previous to an act of ins(dvciiey, oer-
in lands in which the ins(dvent, a defendant in
Bit of chancery, had an equitable interest,
'keu ordered to be sold and were afterwards
I, and the purchase money paid to the plain-
in equity, the assignee in insolvency iiKjved
such moneys Ix.' paid into court for the
[fit of the general creditors : Held that such
Js were subject to thi^ order for sale, and
Biiiti(ni refused with costs ; but the assignee
"Considered entitled to his costs out of the
;, as the question was a new one, and a
ir 010 for him to raise in the interest of
ineral creditors. Y(d<' v. Tullt'iio)i, 2 Chy.
li. 49.— VauKoughnet.
e mortgagor of land having made an assign-
,j in insolvency, subseiiuent, however, to
ixeciition of the idaintiH', and it appearing
If there was a surjilus after payment of all
11 proved against the lands in the suit by
|rior mortgagee, it was held that, in the
we of proof of waiver by the plaintiff of his
% the plaintiff was entitled to priority as
|t the creditors of the mortgagor under
430
Darihtq V. Wil-
the assignment in insolvency.
MiH, l(i Chy. 255.
In ease of a debtor dying leaving insufficient
to pay his debts, execution creditors whose
writs are in the sheritr's hands do not lose
their priority ; nor does a creditor who has a
seciuestration in the hands of the sequestrators
lose the advantage of it. Mei/erx v. Meyers, 19
Chy. 185
Sec. 5!( of the Act of 18G9 applies to judgment
debts recovered in Division Courts, on which
execution has been issued to and the money
levied thereunder by a bailiff of such courts,
although the section speaks only of executions
delivered to the slierijf'. Patlerxon v. McCarthy,
35 Q. B. 14.
It was objected that defemlant received the
money only as clerk of the court, but it appeared
that the sale had taken place after the assign-
ment, and — Held, that there being no lien
created by the mere seizure, which took place
before the assignment, the plaintiff was entitled
to the money as part of the insolvent's estate, no
matter in whose hands it might be. lb.
See Duridson v. Pern/, 23 C. P. 346, p. 447 ;
McU'liirter v. Learmoiifli, 18 C. P. 136, p. 413 ;
Brandy. Bkkle, 4 P. K. 191, p. 416.
7. Fraud awl Fraudulent Preferences,
(a). Tranmrlion.t Protected.
Paymvntt or Seciiril'tfx rj'urn under Presaure.]
-In this case the insolvent, about two months
before the attachment against him and his
assignment eonseipient thereupon, assigned to
defendant, a creditor, a policy of insurance upon
inerchandise in security for a debt about to be
placed in suit, and the insurance company upon
a tire paid over the proceeds of the policy to the
creditor to the extent of his debt. The plaintiff
claimed as assignee to recover Jiack this amount,
and he called the ins(dvent, who swore that
when he assigned the pidicy he had no contem-
plation of insolvency : that his intention was,
with the remaining assets and the residue of the
moneys from the policy after paying defendant,
to reoiien his business, but that he was driven
into insolvency by the act of a creditor, who,
though he hail promised him time, sued out a
writ of attachment against him : — Held, that
the onus ))eiiig iipon the plaintiff' of proving that
the transfer of the policy was made by the
debtor in contemplation of insolvency, (it not
having been made within thirty days of the
issue of attachment, or of the execution of the
deed of assignment), the evidence produced by
him failed to establish this fact, and that the
verdict, therefore, for the defendant Wfis right :
-Held, also, that there was no fraudulent pref-
erence, it not being pretended that the assign-
ment of the iioliey was the spont.aneous act of
the debtor, but the fair inference being that it
was made in consequence of pressure by the
creditor : -Held, also, that sub-sec. 5 of sec. 8
clearly did not apply to this case, the money
received by defendant not having been a pay-
ment by a debtor unable to meet his engage-
ments in full, but having been received under
the assignment of the policy, and from the com-
pany ; that the assignment being valid it was
1 i
1
ill
4
431
BANKRUPTCY AND INSOLVENCY.
43i
rj
I
PrI
1:'
quite immaterial whetlier when the ino'i.y was
paid the defendant knew, or had prohahle cause
for believing in, the then inability of the insol-
vent to pay his debts in full. McWIilrtcr v.
Thorne, 19 C. P. 302.
Under sec. 89 of tlie Insolvent Ait of 1809,
the presumption that transactions within thirty
days next before the assignment, &c., were made
in contemplation of insolvency, is not <ionclusive,
but may be rebutted. In this case the creditor,
who lived twenty miles from the insolvent, had
a mortgage on the insolvent's house for §900, of
which 1^0 was due. On the 8th February he
wrote to the insolvent to call and arrange mat-
ters the next time he was in, and on the 9th ho
purchased from the insolvent about §1,400 worth
of pork, on condition that §000 should go upon
the mortgage, and he paid the balance of the
purchase money to other creditors. An attach-
ment in insolvency issued on the 3rd March, and
the assignee brought this suit against the credi-
tor to avoid the transactiou. The creditor said
he did not wish to press the debtor in any way,
but wanted his money. The debtor owed about
$3000, and his property produced only §1,000.
There was contradictory evidence as to defend-
ant knowing or having probable cause for be-
lieving that the debtor was unable to meet his
engagements, and as to whether the property
mortgaged was worth more than the balance left
due upon it. The jury having fonTul in favour of
the defendant, the creditor, tb' irt held that
the transaction was not avoided i)y force of the
statute ; and upon the facts they rerused to in-
terfere : — Held, also, th-.t tlie insolvent could
not, under the circumstances. ' ' said 'mvc
acted voluntarily, within the n,i..iiiiig .itt.aciied
to that word by the decided cases. Caiiiphell v.
Barrk, 31 «. B. 279.
The insolvent, an innkeeper, on the 12th of
August, 1869, gave the plaintiff a mortgage upon
the whole of his property, payable in six months,
for an over-due debt. The attachment in insol-
vency issued on the (ith December following,
and the assignee seized aiul sold the goods. The
evidence shewed that the mortgagor knew or
had strong reasons to ])elieve himself to be insol-
vent when he gave the mortgage, but that the
defendant did not know it, and that the mort-
gage was given under pressure by defendant, and
not with intent to defeat or delay creditors : —
Held, that under these circumstances it was not
void under the Insolvent Act as against tlie
assignee. Archibald v. Haldau, 31 Q. B. 29i5.
An insolvent absconded to the United States,
taking money with him. He w.is followed there
by the agent of a person in this country wlio
had become surety for him, and, by the threats
of criminal proceedings, induced to pay the
amount of the security. A bill, by the official
assignee, to recover the money from the surety,
was dismissed with costs. Roe v. Smith, 15
Chy. 344.
The Insolvent Act (1864) forbids mortgages of
real estate to a creditor by way of preference.
Curtis V. Dale, 2 Chy. Chamb. 184.
But where the mortgagor did not believe he
was insolvent (though the mortgagee feared he
was so) and made a mortgage of real estate
under pressure on the p.irt of the mortgagee,
and in the belief that he (the mortgagor) would
th< leliy be enabled to continue his business »»
pay his liabilities in full, the iiiortgago w.is 14!
valid as against his assignee ui iiisolvuiicy '/i
A preference whicli a debtor isiiiduceilto
by threats of criminal or other proceediiiBf"''
not void under the Indigent Debtors Art "
1859, or the Insolvent Act of 1804. (7^,, "
V. Conri'r.te, 10 Chy. 547. See, also
V. UeipwUU, C. P. 491.
Men
it to sustain the preference the pressi,,
; have been real, and not a feigned conrt
But
must nu,.v^ vi-^yjtt. .veil, e«»n.i ji./u u leigned contij
vaiico between the debtor and creditcir to «i |
the ajipearaiice of pressure for tliu niere iin"!
j)oseof giving effect to the debto- 'a desire aji I
intention to give a preference. CI uniiow v r'f
rrrse, 16 Chy. 547. *'
A mortgage was obtained by pressure troniui
insolvent person, a miller, three months kCl
he executed an assignment in insolvency ■ tk I
mortgage was for an antecedent debt, auil' Jl
not eiiforcible for two years ; it compriiiej tj
mortgagor's mill only, and left untouched akjJ
one-tliirdof his assets ; it was not executed »i|i|
intent to give the mortgagees a preference • aa'l
at the time of obtaining it they were not aVail
of the mortgagor's insolvency. In a suit Irl
the assignee m insolvency, impeaching the tnil
saction, the mortgage was held to be valill
McWhirter v. Jioyal Canadian Bank IT fit I
480. ''
The mortgagees, shortly after obtaining tkl
mortgage, became aware of their debtor's htA
rate circumstances, and obtained from him bl
pressure a mortgage on his chattels used in lull
business. This mortgage was lield void anintf
the assignee in insolvency. Ih. '
M. had in his warehouse 2500 bushels of ml
belonging to T. & W. They owed him ^\M
made up of money due for storing that and otlia I
grain, for grain supplied to them, and for wl
ance of account. T. & \V. were insolvent, d\
their creditors pressing them, of which M, ml
aware. They demanded the grain moretbl
once, alleging that it would enable themtoMJ
their creditors' immediate demands, but )[»•[
fused, saying it was his only security ; andi
end T. offered, if M. would give it up ami 1 1
receipt of the debt due to liim byT. ilfj
to assign to M. his interest in a vei
worth about §1,600. This M. assented tciil
on the 20th November T. executed a biHofaiJ
of his interest to M., and received the pal
This transfer, however, being informal, to •■J
turned by the custom house authoritie,', 1
another one executed on the 5tli Decemk 1
the 7th January an attachment in insoivennij
sued against T. :— Held, that as M. hadilemii^
payment, and the transfer was made on i
express condition that the rye should Ix p
up, the transaction must be regarded as ifl
voluntary one, and therefore not one k »
M. had obtained an unjust preference.
also, that the transaction must l)e lookeJ )ti|
carried out on the 28th November, J/cW
V. McDonald, 21 Chy. 319.
Other Securities.] — On the 13th Septa
1860, S. agreed to deliver on account of £ J
a railway station, when wanted, 600boui
factory cheese, at a certain rate jier poimir
to keep the same insured until wantd.
weight had not then been ascertained, iiij
pDeclaration in det
w, th,at one J., tli
ihle to meet his en
Jtiou of insolvency
i» plaintiff, and witl
ide a voluntary ass
ilefendant, tJie
rtgagewasmaile to
|«ud surety for ■!.,
T»e<l m unjust prcfci
% who were therebj
kerefore the mort^'a
t as assignee took
lied that J, being a
ig»o<l8 to carry on
Titiff to endorse not
f them: that the
Jitimi that J. on re
. ire him against loss
Ion the other goods
l^them at his store
r^'tire the notes
ivisc the plaintiff
M'<-" protection : tli
^widirsed, and J. „
% which he mortg;
ii on, with other goi
»nsi(ieration of pe
|! that J. afterward!
p. .laaigned to th(
Jiohceotthemorti/a
P"iec;oods, whentl
Wiandedthem.— H
>"'. for that the
E'or by the actual 1
^<; equivalent in ti
■"«on his credit; j
28
433
BANKRUPTCY AND INSOLVENCY.
434
„ , 1 nAt been manufncturcd. Subsequently,
•"''"i"!!!!;!!! receipts, .lated respectively
uirehouse receipts, luviu.i iu»i)uuuivuiy
oTUvi.teml.er an.l flth October, were given
'^''l m. for 330, the other for '230 boxes,
*" V ,v S. and specifying' the weight of
^ On the 22iul October, K. mortgaged
400 boxes of cheese, purchased by
about the 13tn September,
house of S., to secure
sijr
the cheese,
to iilaintina
him from S. on or
„a then in tlie curing
l«„mtV8 advanced to hnn by plaintiHs, upon tlie
\ TlVoi l.art of the clieese. This mortgage
r tfilci' S became insolvent on the 10th
and K. became aware of it
The plaintiffs replevied
Held, that even if the
mtr
|«a& not
lOctoter following,
L the following ilay.
I«ii linxes of cheese
irr^,.erty (Ua "ot 1"^«« ^>^^"''' the 21st September
KKtaeciuent insolvency of S. did not atiect
■'VrS- for that the Insolvent Act of 18(54,
^R sub-s' 2, did not apply, as there was no
'nMence of obstructing or injuring creditors, but
7contrary, the property having been sold at
, f„U value ; hut, even if the case were within
. clause the contract would be voidable only
«der the order of a competent tribunal, upon
"u terms as to the protection of the person
" nctnal loss or liability as the court might
^ct'-Held also, that the mortgage to the
iintiil's was vahd, having been taken "by way
f additional security for a debt contracted to
,, ij^jiii in the course of its business," and
,j,f;,re within C. S. 0. c. 54, a. 4 ; that it
'id not be impeached by any one ^for want ot
,, )|.,t an opposing creditor of K. , and that
S could not impeach it, neither could the
fendant, his assignee in insolvency. Bank of
mly.McWIiirler, 17 C. P. 506.
I Declaration in detinue and trover for goods.
liea, that one J., the owner, being a debtor
«llle to meet bis engagements, and in eontem-
Am of insolvency, mortgaged the goods to
(i.laintiff, and within thirty days thereafter
(ie a voluntary assignment in iiisolvencj io
I defendant, the official assignee ; that the
rtcai'e was made to the plaiiitifl' as a ere<litor
fandsurety for .1., whereby the plaiutitTob-
neil an unjust preference over J. 's other credi-
, who were thereby injured and obstructed,
le'rel'iiie the mortgage was void, and defend-
as assignee took the goods. The plaintiff
litil that J. being a retail dealer, and want-
I goods to c-vrry on his business, asked the
ntiff to endorse notes to enable him to pur-
them: that the plaintiff consented, on
litiou that J. on receiving the goods should
I liim against loss by a mortgage thereon,
ion the other goods in J.'s store, who was to
J them at his store only, and out of the pro-
retire the notes, and if lie should sell
mie the plaintiff might sell the goods for
I own jirotection : that the plaintifl accord-
" f emljrsed, and J. with the notes purchased
I, which he mortgaged to the plaintiff, as
1 on, with other goods, for the bon.l fide and
l;«onsideration of perfecting the said agree-
l; that J. afterwards, without the plaintiff's
nt, assigned to the defendant, who took
fcnotice of the mortgage, and was proceeding
I the goods, when the plaintiff forbade him
lemandedthem ;— Held, that the replication
oil, for that the plaintiff only became a
(ntur by the actual transaction, in which he
"he equivalent in the new goods purchased
ion hia credit ; and und«r these circum-
28.
stances, the plaintiff lieing ignorant of J^'s posi-
tion, the mortgage was not avoided by the
insolvent Act, (sec. 8, sub-s. I, 3, 4), though its
effect might be to delay creditors. Quiere,
whether it was voidable uncler sub-sec. 2. Math-
frx v. Lynch, 27 ^l B. 244.
Held, that the mortgage in this case, given
under circumstances fully set out in 27 Q. B.
244, was good as against creditors, the jury hav-
ing found it to be bonil tide ; and that notice to
the ollicial assignee of the mortgagee's claim was
immaterial. .S'. C. 28 (J. B. 354.
Knox being indebted to one Kyle, and Kyle
to defendant, it was arranged that defendant
should take Knox as his debtor, defendant credit-
ing Kyle with tlie amount which Knox owed to
Kyle, and Kyle discharging Knox ; and Knox
accordingly gave defendant his note for the
amount. This took place within thirty days
before Kyle made an assignment in insolvency,
and hia assignee brought trover for the note,
contending that the transaction was avoided by
sec. 8, sub-s. 4, of the Insidvent Act of 1864,
but Held, not ; for the note never was the
insolvent's property, and so never passed to the
assignee ; and even if it was a transfer or pay-
ment by Kyle ^ithin the act, and so avoided,
this would not entitle the plaintiff to the note.
MeUreijor v. Hume, 28 Q. B. 380.
To avoid a transaction under sub-s. 4 of sec.
8, not only must there be a contemplation of
insolvency, but coupled with it a fraudulent pre-
ference of the creditor to whom the transfer or
payment is made over the other creditors. J/c-
Whlrterw Thome, 19 0. P. 302.
A., a private banker, exchanged cheques with
B. for mutual accommodation. A. used B.'s
cheque. A cheijue of A. 's had been dishonoured,
and the holder called at A. 's othce the same day,
and a clerk, in the ordinary course of business,
gave the holder B. 's cheque to pay the dishon-
oured checpie. The next day A. stopped pay-
ment : — Held, following McWhirter v. Thorne,
1!) C. P. 302, that the transfer was not a fraud-
ulent preference under the Insolvent Act of 1869.
at;/ Bank v. Smith, 20 C. P. 93.
The plaintiff claiming under a chattel mort-
gage for $2000, as against an execution creditor,
called the mortgagor, who swore that when it
was given he was not insolvent, having real
estate, .and a claim against a railway company
for which two years previously he had refused
$100,000 ; but there were several unsatisfied
judgments and executions against him. He
stated also, that the mortgage was given for the
price of the property covered by it, household
funiiture, which he had bought from the plain-
tiff ; and that the terms of his purchase were
cash, but being disappointed in getting the
money to pay, he had offered either to let the
plaintiff take back the furniture or give him
a mortgage on it, which latter the plaintiff
accepted. The jury having found that this
mortgage was given by the mortgagor being
insolvent, with intent to give the plaintiff a
preference over his other creditors : — Held, that
there was evidence to go them of the mortgagor's
.insolvency, but that if the mortgage was given
ander the circumstances stated hy him, it was
not a preference. A new trial was therefore
gniuted. Hersee v. White, 29 Q. B. 232.
':M
i\
1:1
'•i
i
' i 1"
-4
, - ,1
f <
m
435
BANKRUPTCY AND INSOLVENCY.
U]
A (leVtor, lunng in diilicultica, assigned all his i for tho puroose of carryinc on tliejr ),■ j,,,
property to a crt'ilitiir, who ULjrL'oil til |i,'iy acorn- and he di(l lend, from tune to time vari!^
position of 40 uentx in tiic S within a year. Tiii.i ; sums of money, npon the express ULTeim "
had been jiaid, except to dcfciulant, who refused tliat nnch moneys shouhl bo repaid to dvimA 'i
to accept, an(l issued execution, (hi an inter- out cif tile proceed.s of tile daily sales (ifi;, ' 1
pleader between tlie assignee and the defendant, ' thereafter made by JJ. & 1'., and tiiat suohr"
to try the title to the goods assigned, the jury ceeils should be held by B. & I', iiiiiiii tru fi"
having found the traiiHaetion boiiil lido ; - Hehl, ' repay, and should bu charged with aiiil aiJiJ
allirming tho judgment of tlie County I'ourt, that 1 ill repaying, the defendant the aiiiuinit Wu'i
such assignment was not avoided by the liisol- I him ; that at the time of the payiiiLnts dti. i
vent Act, sec. 8, for that the statute ajiplies only 1 dant was the creditor of B. & I', to an Mii„n ,
where proceedings are taken, and as against a : not less than the $l'M, for nionevs ailvai i
person claiming, under it : — Held, also, tliat the ! upon the said express agreement, anil tluiiii,.!..'|
assignment was not invalid under (J. S. IJ. C o. paitl to defendant liy H. & P. wcn> iJiiil,,,.'
20,8.18. S'/iiiiv V. Waft, '2<,Hi. n. -^-JS. i- . . ... . '"> :
A bank having cashed a bill of exchange, and
taken by way of collateral security a bill of
sale of certain goods of the drawer, tliis trans-
action w.as held not invalidated by the drawer's
insolvent circumstanees at the time. X< irfnit v.
The Ontario Haul; 15 CUiy. 'JS.l In appeal from | '
S. C, ISChy. (i5L>.
and formed part of the proceeds df smd ,i,j
sales, and were applied by defendant ii|iiiii an,|',!
account of the moneys lent todefeinlant 1111,11 il,
I said agreement, and nototherwise ; dftl,;, ^ni
niurrer, Morrison, J., diss., plea g(i,i,l ; y^)^
the agreement between 15. & I', ami det,,.,,,!^,,, '
j gave defendant au equitable claim and iiiiinn»
ou their goods, which, under the pidviscj ti jj'
j !)0of the Insolvent Act of 1809, was a "valiulii
A banking tirm in Toronto, having become j security give^i up in consideration (jf suctiMt.
embarrassed by gold operations in New York, j nient," and which must bo restored ti)(kii%laii|
applied to the plaintiU's, to wliom they owed before a return of the payment to liinuuulill,'
^60,000, to advance them .'?1.'),00() nnu-e ; and, demainled. Morrisim, J., was of oiijniuii tkl
in order to obtain the advance, they otl'ereil to
secure both debts by a mortgage on the real
estate of one of tlie partners, worth .S.'iOjOOO.
The plaintili's agieeil, iii.nde the advance, and J any creditor, m hich the creditor, wian iiroviiu
obtained the mortgage. In less than tlii-ee ; could shew and describe and vahio, an,! aiiafi
mimths afterwards the debtors became insolvent • when so valued of being assigned and dulivtrdi
under the act. They were indebted beyond ^ to the assignee for the estate ; and that ild'tul.
their means of paying at the time of executing i ant's ecputable claim here was lujt suck \
the luiirtgage, but they did not consider them- \ security. Chiurlter v. Johiislvii, 34 (^. li. Jij
selves so, nor were the moitgagees aware of it. j ^^.^, y,v ||'„7/;.,^ o'J (.1 B. 313 i). 441 • /,', /, i
The mortgage was not given from a desire to 1 ^ p yi, 1(J p. 43',|, ''
prefer the mortgajjoes over other creditors, but
solely as a means of obtaining the advance which
they thought wouhl enable them to go on with
their business and pay ail their creditors : —
Held, that as respects the antecedent debt the
mortgage was \alid as against the assignee in
insolvency. If<ii/al CaiuuHun Hdiik v. Ken; 17
Chy. 47.
tiie "valuable security" mentioned msec. Ml
must be a security recognized in law, vilM
would j'l-evail 'n the linuds o'' a liuMir'a.atiil
(Jther matters.] — The mere endorsement (/I
renewal notes by a person insolvent is noij
violation of sec. 8, sub-s. 7, of the Act of Ijdlf
/n re Jones, 4 P. K. 317. —C. L. Cli.iiiili-il
Wilson.
In 1809 C. lent money to X. on an express
agreement that it was to be secured by mortgage
on eertaui property ; and on the 3rd .Inly follow-
ing the mortgage was given accordingly ; and on
the '2nd August the mortgagor became insolvent •.
— Held, that the mortgage was valid. Allan v.
Clarhon, 17 Chy. 570.
A person in embarrassed circumstances ai)plied
to one of his creditors to supjily him with goods
to enable him to carry (m his business, which
the creditor agreed to supply on obtaining se-
curity therefor, as also for his pre-existing debt ;
and a chattel mortgage for this purpose was
accordingly given, and the goods supplied : —
Held, not such a preference as rendered the
chattel mortgage void. Jiisic v. iS lee wan, '21
Chy. 250.
Payments.] — Action by the assignee of B. & P.,
to recover back .S190 paid by them to defemlant
within thirty days next before the assignment,
they being then unable to meet their engage-
ments in full, and defendant knowing such in-
ability, or having probable cause for believing it
to exist. Plea, on eipiitable grounds, that lie-
fore the alleged payment, B. iSt P. , being retail
luerchauts, requested defeudaut to loud to them
A purchase of goods by persons 'inaljletopijl
their debts in full is not fraudulent within ittl
8, unless such inability is coiieealud im'M
creditor with intent to defraud liiiii. /;iiv'/ji|
rutt et al., 28 y. B. 200.
Two partners, before the Inscilvency I'd
assigned their joint and separate est.it6»
gether, for the benetit of their joint ami stpt
creditors, pari passu. An assignee imJtj4
act, afterwards appointed, filed a Mil id
aside these assignments, on the gioiwultkl
put the separate creditors of eaeli onaiuiii
with the joint creditors in resiject "1 tk )i
property, and of tho separate i«oiiertyi
other partner, was a fraud on the joint croiia
But it appearing that both the separate e
were solvent, iind that the equality i
of was an advantage to the joint crcditslll
bill was dismissed with costs. J/'/A^ii*/!
MrCallum, llOhy. 409.
'J'he Act of 1804 does not iiivaliilate m^
ances previously executed, and valiil ffli
nuted. Gordon y. Youmj, 12 L'liy. 31S.
The insolvent had conveyed by way ol s
ment to his intended wife a lot of landoiiii
he had commenced a hou.se, butwhioli'i'J
completed until after the marriage. Od i
lileil by the assignee in iusolveiicy, tli( «
437
BANKRUPTCY AND INSOLVENCY.
438
1 red that for so much of the building as waa I son v. Cfimi/i, 1 1 Chy. 444, uppnived ()f. Thome
-flf.Uml after the iimrriuge tlio eruiliti)rs hail a I " "
coimiletod after . ,- . ,, -r ,|
1 im tlio property ; l>ut gavo the wife tho
■*ht to elect wlietlier alio wc.uld ))e pai.l the
"^1 ,f l,(,r interest witiidut tlie cxpeiiditim
I '?t T nurriivM^'' '"' l'"-'^' *" ^'''^ ■"'ssigix'e the amount
inMiuli exptiiditure ; and it sul)se(|uently ap-
IwiriiW that the husl.and had created a mortgage
'iriir to the settlement, tlio wife was deehvretl
Ltitltil to iiave tlie value of the improvomcnts
Lie after marriage applied in discharge of the
mortgai-e in priority to tho claims of tho credi-
l^n /(icfao/i V. -Bu"'"W«. 14 Chy. 15G.
Hi V. V. 44.") ; aliirmed in appeal,
(h) TraiiMcfiona Avoided.
on thf. '-'5th Novoinbcr, 18(!4, agreed to
ULver certain timber to plaintiff at T. in New
Jork in May, J""", '^^'y' '""^ August, IS*!'),
11500 payaltle down, the same sum on tho loth
f January, Istof March, and Ist of April, 18(5"),
Blithe lialaiiee on delivery at T. Oii the 14th
iccmlier following he assigned tho timber to L.,
isceurity for certain advances in goods which
.uTced to make to enable him to get it out,
imithe'JTth of February, ISli,"), formally <lu-
editto L's son, who, after consulting with
MTotetotlie plaintiff that S. desired to de-
tjf the timber to the plaintiff, but was in dilii-
lltv; that aomo of his creditors refused to wait
I'uwlikt'i
\itwitlm«|
akd it"nitit|
iolYency
|te fstalesa
It ami se]
lee imila
1 a Inll t«
Ivouml tkl
Ion Ml '1'
It oi tk
loiierty «t
loiut cwlii^
iparate e
,ty compin
ereiliWll
J/clJuKil'l
lliilate m
liiUiei'
.31S.
|wayo
lawlou*
shicli«'|
fucv.tlieii
V. Torrnui-f,
18 C. P. •-•!».
Tho mere fact of a jierson in ins(dvent circum-
stances not defcading one action ami delaying
another, is not illegal, by tho common law, but
under the Insolvent Act it is fraud for an insol-
vent to cause his goods to bo taken in execution
to tho prejudice of his goneral creditors, even
though the prefcrreil claim bo a just one. It
was not decided whether this wtmld avoid the
Judgmont ; but if not, it was novertheloss an
act of fraud for which some punishment should
be awarded, thcmgli not necessarily to the extent
of a perpetual refusal of the insolvent's dis-
charge. Ill iv Jvnex, 4 P. R. 317.-C. L. Chamb.
— A. Wilson.
On tlio 18th of October tho insolvents sold
goods t^) one (J., taking his note for tho price,
which on the same day was taken by C., and by
the defenilant, and ono of the insolvents, to a
bank, and there left to be applied in payment of
notes made by tho ins(dvoiits and endorsed by
defendant. On the "JOth the insolvents made a
voluntary asaignmoiit, being pressed to do so by
threats of compulsory liciuidation :— Hold, that
tho transaction being within thirty days before
the assignment, was a transfer to defendant by
way of payment, giving him an unjust preference,
ind therefore void under sec. H, sub-s. 1 ; that
i'l he eouhl complete his contract, and hail | ^^^^^^ ^^,.^^ evidence also that it was made by the
imenced aeticms, and roconimeiiding that tho
iiititf siiould anticipate their action by taking
Eklivery before they could interfere. On tho
5th of March the plaintiff' accordingly paid L.'s
m, and took a delivery. On the 3ril of March
ihaJ served a writ on iS., telling him it was to |
ore precedence: loid an cxc'itioii was ob- ,
Bed m this suit, uiidor wiuch the s leriff ,
On the 14th of April S. made an assign- j
nt under the lns<dvent Act of 18(i4 to tho
jidaut. He admitted that ho was insolvent
[the 11th of March, and long previous, though
liaid he did not then know it, and had not
■rned the plaintiff of it : — Semble, that these
1 shewed the delivery to the plaintiff to bo a
BlVrbyS., "in contemplation of insolvency,"
^etiVctof which was to give him "an unjust
(feiviioe over the other creditors," and that it
1 therefore void uiuler see. 8, sub-s. 4 of the
ivent Act of 1864. Adams v. MvCall, 25
. '219.
, [vraon behig insolvent sold his ])roperi^ to
dlitor, the consideration being a pro-existing
, and a sum in addition sutticiont to make
ie price agreed upon as the value of the pro-
[ s>ild ; the amount so received by the debtor
I by him paid over, with the knowledge of
•chaser, to another creditor ; and throe
i after this sale the debtor made an assign-
llindcrthe Insolvent Act. On a bill tiled by
ptor, the sale was set aside and a re-sale of
loperty ordered, the proceeds to be applied
nent of the plaintifif 's claim, and the resi-
t any, to be paid over to the assignee in
bey. (JotUes v. JosUn, 12 Chy. 5'24.
iMsignment for the benefit of creditors not
I in accordance with the act, is an act of
ncy, and void as against an execution
p, or the official assignee appointed in
i8otyproce*dings under that act after such
' Dga are taken, if finally sustained. Wil-
insolvents when unalde to ii.ay, with a person
knowing such inability, and therefore made with
intent to defraud their creditors ; and that it
was also a payment to defendant under sub-s. 5 :
— Held, also, Morrison, .1., dubitante, that under
sub-ss. 4 .lud .5 the assignee might recover in
trover for the goods sold, though before his title
accrued the iioto hail been discounted and the
proceeds applied on defendant's endorsations,
aiiinrhei' v. Coiisinn, 28 Q. B. 540.
Held, that a payment by an insolvent after
attachment against him, on account of a draft
discounte<l by dcfeinlants for him, and dis-
honoured by non-acceptance, was recoverable
back by the official assignee, though tho defend-
ants were ignorant of tho insolvency when they
i-cceiv<;d tho money from him. Jioe v. Royal
CaiHidinii Jiiink; 19 C. V. M ; f(dlowed iniPoe v.
Hank of Bi-ithh Xovth America, 20 C. V. 351.
A conveyance void against creditors was made
in December, 18(58, through a third party, to the
owner's wife ; the husbantl in November, 1869,
became insolvent, and in June, 1870, joined his
wife in a sale of tho property to a purchaser
without notice ; a conveyance to the purchaser
was executed and registered, and the purchaser
gave tlie wife a mortgage for part of the purchase
money, and paid her .the residue in cash. On a
bill by the assignee in insolvency he was de-
clared entitled to tho mortgage, and to any of
the money which still remained in the wife's
liands, and to any property, real or personal,
which she had purchased with tho residue, and
still owned ; but the court refused to direct an
enquiry whether she had separate estate, in order
to charge the same with any of the residue which
had been spent by her, or with the costs of the
suit. Saunders v. Sfiill, 18 Chy. 590.
Tw mortgages were created by a debtor in
favour of a creilitor, whose claim consisted of
*vf
■■■■■: \
i ' ■ ^
■ ii ' ■"
•:i i -
II ^1
-w^
0P:
imi I
|i
439
BANKRUPTCY AND INSOLVENCY.
41;
promissory notes then current. It appeared that
the debtor was in insolvent cireumstances, and
the court considered that both the debtor and
creditor contcmphitcd the debtor going into
insolvency, which lie did shortly afterwards.
Oil a bill tiled })y the assignee in insolvency to
Bet aside these mortgages, the court held them
void as an "unjnst preference" under the Insol-
vent Acts of 18()4 and 1809. J'tii/ne v. Iftiulri),
20 Chy. 142.
8. Compositiun and Disrhanje,
(a) Grounds for Uffunimj Disehanjf,
Giving up part of stock to a creditor — Evidence
of fraudulent preference — Discharge refused —
Conditional discharge — Effect of insolvent not
keeping proper books of account. Jn re Jieare,
3 L. J. N. S. 294.-0. C— Jones.
The judge in insolvency refused an insolvent
his discharge on the grounds, I. That he had
made a preferential assignment in 1857. 2. Had
kept no books of account shewing receipts and
disbursements of cash, and other Ixioks suitable
for his trade : — Held, that the first ground was
not sustainable, for there was no law against it
when made ; and that as to the latter, considering
that some three months only had intervened
between the Act of 18()4 and tlie application
for discharge, and the inconsiderable nature of
his business, the insolvent should not have been
so severely dealt with, though this was wholly
in the discretion of tlie judge. But as the judge,
tliough doubtful as to it, had not encjuired into
the bona fides of the ivssigmnent of 1857, and
the disposition of his property under it, the
case was referred back to him for re-considera-
tion on these points. In re Parr, 17 C. P. (521.
Semble, that sucli assignment, being valid
when made, could be impeached, under sub-s.
6 of sec. 9 of tlie Insolvent Act, only upon the
ground that by it the insolvent had frau(lulently
retained and concealed some portion of his es-
tate, or had been guilty of evasion, &c., in his
examination as to his effects. Jh,
Quajre, whether fraud committed before the
act is fraud within the meaning of the act, so
as to be a valid ground of oppouition to a dis-
charge. If).
It appeared, on an application by an insolvent
for his discharge under the Insolvent Act of
1864, that he had within three months before his
assignment paid one of his creditors in full under
such circumstances as was considered to amount
to a fraudulent preference, and had neglected to
keep proper cash books or books of account suit-
able to his trade. The countj' judge granted a
discharge suspensively, to take effect four months
after the order. In re Lamb, 4 P. 11. 16. — C. L.
Ghamb. — Hagarty.
Upon appeal from this order by a creditor, the
judge in chambers thought that the judge below
had acted with extreme leniency, and though he
would not interfere with the order, dismissed
the appeal, but without costs. lb.
Remarks upon the breach of duty in not keep-
ing proper books of account. lb.
The requirements of the act on debtors asking
for their discharge should bo peremptorily in-
sisted on. Ih,
Hehl, that the facts set forth in tliis cu
though unfavourable to the insolvmit, werf il,
tinguishable from acts or other niiHciiiiilii,.^ ^,^
stituting fraud, and that unless tliu latttr i
shewn, tlie insolvent is entitled to tlu; ln'miit )
the statute. In re Sniilli, 4 V. U, fjii.-_(' j
(.!hamb. — A.Wilson.
An insolvent had the possibility of im jut^fj^,
under a will (the construction of wluili wiii
incidentally considered for the puriiDsu (if tlid
appeal) which, however, was oniittcil frinnliil
Schedule of assets, as being of no valuu :- Htlil
that this omission was not an act of framl 1,1
reJone.^ 41'. U.317.— C. L. Chaml).-,V. WiWij
The mere fact of a person in insnlvent circuji.1
stances not defending one action, ami il(ftii,ij,.l
and thus delaying another, is not illfgal liy tkif
common law ; but under the inaoiwnt .ut it J
fraud for an insolvent to cause his mmh tn \
taken in execution to the prejudice ofliis;'ciitn;|
creditors, even though the prcfunvil claiiji 1, J
just one. It was not decided wlictlitrthiswi.i
avoid the judgment ; but if not, it was utre,!
theless an act of fraud for whicii some wnii.J
ment should be awarded, thougli not ncitssiiiiJil
to the extent of a perpetual refusal of the iji.,J
vent's discharge, lb.
The mere endorsement of renewal notes kJ
person in insolvent circumstances is not a viJuf
tion of sec. 8, sub-s. 7, of the Act of 18()4.
CJambling by a person who snl)s(
of the
liii'iitlvi'Li
the benefit of the act, is not fraii.l within 'IJ
meaning of the Act of 1864 ; ami ijiwrc, whetliirl
gambling is fraud at all under that act. Ih.
Discharge refused, because assignment not mjiil
to the assignee where insolvent cariieil wi 1,b.I
ness, and was not in duplicate, aiuliiisolvimiuil
kept no proper accounts. //( re. SuUimii, j LJ f
N. S. 71.— C. 0. -Sherwood.
A purchase of goods by persons unable to pijl
their debts in fnll is not fraudiilunt within i
8, or a reason for refusing the disoliaigc, nnlal
such inability is concealed from thc'crciiial
with intent to defraud him. In re ftwsl
etal., 28 Q. B. 206.
It appeared that the assignment was niadt (il
the 10th June, 1868: that on the lotliM
previous the insolvents had paid to tlieiriiij
two promissory notes, made by tliem in JtJj
€and August, 1867, at three months, firSJ
The father in his examination swore that tkl
notes were given by the insolvents for Uf|
respective private debts bona, liile due tii
for money lent and paid, and for their I
between 1863 and 1866; and that he b!«
knowledge of their business until the 'i|
April, 1868, when he was asked liy oneoiil
for an advance of 82000, which he refi»l«
being satisfied with the statement of theiril^
then produced to him. His statement ns*
firmed by the insolvents. The learneii fii
Court judge upon this evidence decided fill J
payments to the father were preferential, >i^
made the discharge of the insolventi i
three years conditional upon their pa)iM|l
the amount so paid. Upon appeal :-HdJj
That the evidence could not be assumeJlil
untrue, and that the payments therefonfl
not bo treated as preferential 2. Thatiifl
were otherwise, the order could not be«l*
441
BANKRUPTCY AND INSOLVENCY.
Hi
, .>,„ gffttuto onlv .iuthor:'.o8 conditions witliin
ItVnower of tho insolvonto to comply with.
Fr„ul in wntractin^ .lohts l)eforc tlio act.
MWUl is not to bo excluded 'roni considerivtion
„ („renK, 1'-' <"'l>y- ^*^^-
Where ft •-ra.lor, all whose proijci'ty wim
i,«.vilv niort,{ni{ed, and who had largo over-due
1 tt^ wh-c 1.0 cnUd not pay, obtained credit
frmu Montreal merchants, concealing his true
rsition. faUely alleging that ho wa. worth
Sj 000 more than he owed, and that ho had no
LaKemeutsho coul.l n..t meet ; thi8 was held
Buch fraiul as disentitled him to his discharge.
lb.
A trader, after discovering that he could not
mv in full,' continued his Ijusiness, in tho hope,
which was not shewn to have been absurd or
unrcaaonablc, that he would thereby bo able to
(lo 80 • ami in tho course of the business so
continuea contracted some new debts ; but was
uusHccessful, and found it necessary to assign
under the act :-Hold, that ho was not thereby
diseutitleil to his discharge. In re Holt it al.,
13Chy. 568.
In 'uch a case it may or may not be his duty
to discontinue his trade, according to circum-
lUnces ; e(mtinuiiig may be a fraud but is not
necessarily so. /''.
The other provisions of tho act being coni-
jlied with, a discharge cannot be refused because
of the neglect of the assignee to give notice, as
leiinired by sec. U, sub-a. 1. of the Act of 18()4,
or because the insolvent had no estate. — /iV
TlmM, 15 Chy. I'M.
I The absence of any satisfactory statement how
lit came that a credit balance of .$15,000 a short
Itime before the insolvency was turned into a
Idebit balance of nearly iflS.OOO ; the loan of
lin.OOO by the insolvent to his brother, to carry
■on a business which failed, and which was
lorried on without capital, the receipt of $1,2.j0
■by the insolvent a few months before his insol-
Irencv without any reasonable account of what
\m ijccome of it ; were considered to be circum-
litanccs which shewed that the insolvent was
ifit entitled to his final certiiicato. Jiood v.
i,h, 19 Chy. 639.
(b) Effect of Discharye.
Dfhisnot mentioned in Srhednle. — A discharge
ader the Insolvent Act does not prevent a
[tytrom being committed upon a judgment
nmons under the Division Courts Act. If it
d, a party applying for protection from arrest
iDuld shew clearly that the name of the plain-
' was in his schedule, and this is not sutti-
ntly done by putting in a copy of the schedule,
ithout swearmg that the plaintiflf'a name is
(re. Ill re Mackay et al. v. Gowhon, 27 Q. B.
Plea to a promissory note, an absolute dis-
irgeduly obtained ur ier the Act of 1864, from
I judge, from plaintiff 's and all other debts.
Dhcatioii, that plaintiff's name, as a creditor,
I the said note and cause of action, were not
ntioned in defendant's schedule annexed to
jIUKgnmeut, nor ia any supplementary sche-
i
dule, as rc(iuired by law, and the debt was never
proved against the estate : — Helil, on demurrer,
ruplication goiMl : tiiat it is still necessary iiiidor
the hiHidvcnt .Acts to have a schedule of creditors
prepared or annexed to tho deed of assignment ;
anil that the elVect of tho discharge obtained
under the Insolvent Act of 1804 by an insolvent,
is limited to tlie dulits and causes of action set
forth in his schedule, eitiier originally or by sup-
plement. Kimj V. Smith, II) (.'. I'. 311).
To an action of covenant in a mortgage to pay
money, defendant pleaded that, becoming insol-
vent after execution of tlie mortgage, he made an
assignment : that plaintiir's claim was known aa
that of the "Wood lvstate,"and was so described
in tho sciiedule submitted to tho asrjignee and
creditors : that the plaintiff resided abroad, and
was represented in Canada by M. , who had notice
of the appointment of said assignee : that on the
expiry of a year defendant obtained his discharge
absidutely, by which he was discharged from
plaintiff's claim. Heplication, that the order
for discharge was made before 1st September,
lH(i!t, and th;vt tiie plaintiff's name was not men-
tioned as creditor in any schedule, and his claim
was never proved against defendant's estate.
Rejoinder, that plaintiff'.'* claim was known as
that of the "Wood Estate" (plaintiff represent-
ing and being entitled to said estate) and was so
entered in the schedule filed by defendant with
assignee, and that the plaintiff' was represented by
M., who had notice, &c. : — Hehl, on demurrer,
rejoinder good. King i\ Smith, 19 V. P. 319,
distinguished. Fiirnll v. O'Xi'iU, 22 C. P. 31.
To an action on a guarantee, defendant pleaded
his inscdvency and issue of an attachment, and
that, not having procured assent of creditors, ho
did, after a year from date of issue of attach-
ment, apply to a judge for a discharge, which was
absolutely granted after hearing defendant and
creditors. Keplication, that defendant, before
making of order of discharge, did not schedule
plaintiff's claim, nor did he by a supplementary
or any list of creditors, previous to making of
said order, set forth plaintiff's claim, which was
not, in fact, ever furnished to the assignee or
proved against defendant's estate :— Held, follow-
ing King i\ Smith, 19 0. P. 319, and reversing
the judgment of the County Court, replication
good. Palmer v. Baker, 22 C. P. 59.
To an action for attorney's costs defendant
pleaded his discharge under the Act of 1864,
alleging that the plaintiff 's name and residence,
with a statement of defendant's indebtedness to
him being for a balance of costs in two suits
specified, were stated in his schedule filed, and
that he was not aware before obtaining his dis-
charge of the exact amount of such indebtedness.
The plaintiff replied that his name was not
mentioned in the schedule for any sum or
amount whatever : — Held, on demurrer, that
the debt due to the plaintiff was, under the
circumstances, sufficiently stated in the schedule.
Cameron v. Holland, 29 Q. B. 506.
The statute (Act of 1864) is substantially com-
plied with if the debt is set out in such a manner
as cannot mislead, and leaves no doubt as to the
debt referred to, and the amount is capable of
being ascertained by the creditor. Ih.
A creditor, although not named in the schedule
annexed to the assignment, may oppose the con-
i
■• '' a' '■
wi^ll
i im
m
443
BANKRUPTCY AND [NSDhVENCY.
iU
'i:n.
finimtion of (linclmr^(o. Tlio iiiKolvctit HhouM lif
prcfieiit wliDii iiiipliciitioii in iniiili< fur cciiiliriiiii-
tioii. fn ir Shrnnnii, 1 L. ,I.N. S. :.•_'. ('.('. ■
Logio.
Insolvency C'oni^Kmition mul ilini'liftr^fo -I'li-
ii(>ci'Ns;irv for tnnlitorH to provi? ili:l)tM to ciialdt'
thoni to L'xei'iite (WumI of ScIumIiiIivi coucIuMivc
— C'oiillnrmtion refuHcil. /n ri' /.ini'/M, 4 I.. .).
N. S. 283. V.C. WilNon.
Sou Hiirroiri'it < I nl, v,
498, 1). 4a5.
I>ilihl<lll,i,;; \\\(l. H.,
]Yhiu oliliiliiiil III/ Fniiiil. To II |ik>;i of dis-
charge, conllnnoil l>y tlic judge, tli(^ jilitilititl'
replied IV corni]it ugreeiiient lii^tweeii tiif iiinol-
vont and I), k Co., pivrtics to tiie died <pf
conipoHition and discharge, that in toiiNiduiation
of executing it D. k Co. hIiouM receive an
additional Muni alxive tlie eonipoHition, for wliieii
the inxolvent gave tliein liis note ; and that
the pliiintiir antl other ereditoPH liad no know-
ledge of sueli agreement until after tiu^ eonlinna-
tiou : - Held, a good aiiHwer, the eontirniation
not being niadi! eonclu.sive liy the act umUu'
Bucli cireuniHtanees. T/ihii/imihi v. /'ntlii r/m-i/,
27 y. B. 205.
In an action on a proniiMHoi v note, with a pica
of discharge under the Insolvency Act, and n^pli-
cation that the dincharge was olitainecl l>y fraud,
inagnuich as defendant had concealed from the
assignee certain promissory notes, it appeared
from his own evidence tliat defendant, several
months before his assignment, wliicli was volun-
tary, desiring to raise money on his farm, on(!-liftii
of which belonged to liis wife, tiie value of iier
interest not being stated, ga\ c his wife at least
8300 of notes of a third person, slie otherwise
refusing to cons(Mit toa mortgage of tiie farm. It
further appeared tluit defendant h:id attcmptcil
to collect the notes, as lie alleged, for bis wife,
and that the mortgage liad b(!cii nearly paid oil",
but by what means was not sluwii : - Held, that
the plaintiff was on this ovidciice entitled to
recover. (/(;//(«//(// v. <<'i(ih(iii>, 22 C. I'. 22(i.
Where an inaolvent before tiie meeting of liis
creditors concealed a portion of ills stock:
Hehl, (uiuler the Insolvent Act of I8()*t) tliat liis
discharge was thereby avoided, and that it was
not tile less a fraud because he had valued bis
assets at a sum sufficient to Cviver the goods so
concealed. The plaintiff, therefore, tiioiigh lie
had signed a deed of composition and disehargc.
and the discharge had iieen confirmed, was held
entitled to recover for his debt. McLean v.
McLellnn, 29 Q. B. 548.
See Foster v. Taylor, 31 Q. B. 24, p. 454.
(c) Deed of fomjiiini/ioii.
Declaration, on a joint and several note made
by defendants payable to plaintiff. I'lea, (l>y
two defendants) that the note was m.ide by them
as sureties for the other defendant, with notice
thereof to plaintiff, who took the same upon the
express agreement that they shouhl be liable there-
on only as such sureties : that the plaintiff, while
holder of said note, without tlieir knowledge or
consent, after the accrual of the alleged claim,
and before action, by deed released the other de-
fendant, the said release being headed as follows :
"Insolvent Act of 1864, &c. The release, also,
in tlic liody of it, referred to the " Iiisnlv™,
Actot IM(U':" Held, pica bad ! forthc cMirtw,,
lioiinil to look njioii tile jiha an setting' up ,1,1,,
cliai'ge uniler tlie Insolvent .\( t, ainl |,y , ,,•
siib-s. 4 of that act, the plaintill's ri|;lits )^„1^
expressly preserved to him against all i.tliir|,.f
sons lialile for or with the insolvent ; lliM,:i|,„
that it it u.is desired to rely on the reluMfia
valid atcoininon law, it slioiiM liavc liteiiaaiiin.
iiaiiicd with such avirineiits as woiilij Icivi •^ll|.»5
ittol perativc, or it. slemld iiotliavcl n^,
out ill liicc verba, but its legal cll'tM-t only H||i,||i,i
have been stated, and its ellicacy left tn li,. ,.,1,1^
lislicd lpy such facts as it was contendcl ,,i]|t||i,.
iitiMl tlicreto. Seinble, that a ciiMlitur uii.i.r ,
composition dci'd, either under the liiMiivint u
or otlicrw isc, cannot give a gciici-,i| ri|i;iv, .n,, 1
subscribe tor a paiticiilar sum, as iiciiii,',i|i|n,.
eiitly his whole claim, and afterwai'iU lulvaiit.
other <lcniands us not included in this (liaiij.,|.|,j
for this would be a fraud on the other irulitnf,'
Foirirr V. /'erriii 1/ ,1/., 10 C. |>. 2.')H.
On 2iid May, 18(17, defendant H. iii.iile iiiiu.
sigiinicnt umlcr the Insolvent .Acts ; aiulnntli, I
27tli, a ileed of cotiipositi<pii and discli.uvt. «„
exciMited by R. and liy I!, (who had liccii niki|y
15. 's surety) and otijcr creditors, as wijla,!.
tile plaintiff, who, li<iwever, reserved lii^ ri;i,N
against any surety for his debt. ' In jllth Ki.
riiary, 18(»S, plaint ilV obtained judgincMt. (iiiUtj
l'"eliniaiy, li. look an assigiimcnt of tiiuiii,]..
nieiit from the plaiiitilt', [paying ipartiuily of t||, I
iiiil;,'iiieiit debt. Oil all applicatiipii lpy ili.!,-!,.],..
H. t(p have his name struck (Piitipf tiie pnnv. 1. ,
and th(^ judgment stayed as against liim, nntJi,
ground tiiiit tlic phiiiititf was a ]iai'ty tetlnMW
of compipsition and discharge : I leiii, tli.ii R
was ciitit'-'il tip this relief as well iiuaiiist tl«
plaiiitiiras a,:; a i 11st I!,, and that lie hail aofduutij
f(pr his delay by a reasonable sii|i|i(i,sitinii tluj
the pliiintiff was proceeding on the jiiilgiimiito
recover the balance of the debt frmii ik'iViiilui
It. .Semble, that tlii^ assignee ipf a jiii lament tan
not eiitoree it, if his assignorc(Piilil lupt. j/im
V. liniiiiill et III., 4 I'. \i 22'J.-C. 1,. Clmml-
A. Wilson. I
To an action on a ])romissory note aiuliwilii
eomiiKPn iiKPiiey counts, del'eiidaiit jpkulciU.
That after making the note and i:icuiTiiit' tlit j
liability he became insolvent, ami a dtel i< j
comiiositioii anil diseliarge, under tlic Iiwlvw
Act of 18(i!), was entered into and exwuttiUj
a iiiaj(prity of creditors, whereby dcfemlaiitfi
discharged, which di.scharge was conliniaiUivtii I
Countj- Court judge ; 2. That after iiiiikiiij; tin
note defendant beeanie insolvent, assigned ton I
ofiieial assignee, anil duly set furtli iJaiatifil
claim, which plaintiff' duly proved, afttr irliii I
a majority in nuinber of ereditnrs cinLsciitBla I
writing to a disciiarge, which was iluhftt-l
lirined, &e. Replication, to first ]pk'a, sttBjI
out the deed of eoinposition, ackiKPwk'ilginjti!!
receipt from as.signec of defeiitlaiit's estate i< I
certain promissory notes, indorsed, fnritrtiaj
amounts, and payable at certain dates, »|
accepting same in payment, and stating tbttit I
creditors therein named, (of wlioiii [il,iiiitilfn|
not one) accordingly discharged him, iiin! .intl>T f
ized the restoration of the estate tn liim. ^\
lication to second plea, that the alleged coniesl I
in writing was the deed of coiiipositinn aiiilii»|
charge in the above replication set oiit.aJj
that, in pursuance of said deed, said asij«l
44.'i
BANKRUPTOY AND rNROLVENOV
446
•toreil t') (Iffriiil'Uit lii« I'Htiiti'. licpliratinii,
'n.'.iuit«l)l..' KIM'""'". H'"t tlKM;nlll|„,.ltln„ was
t Imvlf in Ky."l l,titl.. n-.r t„r a. 1,uk.' an
„i,f iiH it sliiMilcl liavi' litin, iix ilfli'iiilant
nriw: ll..ia.uu.U.M.unu,.lultlu.n,.li.
tinllH til till' l-<tlHlil 'Jlicl pU'H»t Wliy K'""l. till'
V i„(idiiii"i«itii>" ii!* sit out liiii)^,' iiiMiilll.iciit,
Z\ tliiit till' lir'<t l'''''i «'iH l.ml : that tli.. -JihI pLa
Ulll
(lUt I
iii,t (ipi'ii tt> tlir iilijiitioiiH tukfii to it, Mi't
I, till' cas''. tlumgli, niiaTi', wlii'tlu r khihI in
rII imrtii^iiliii" a>,'aili8
Iw
[li, ipia'Pi', wiii'iruf giMHi 1
t <>l)ji'i'ti<iiiH iKit taki'ii !
u' u'dUi" tliat"tliu iKiiiitatili! rt'iiliciitiim was
£1. Shiw V. .V.M.,V. '.'l C. V. 'Jdft.
Ti, 111! lutiiiii iipfi" iiiiti'H liy thf ]iayi'i! aKaiiiHt
.. „',|iiji.r tilt' ill fi'Milant plt'ailiil that at'trr
I Biviim tlio iii'ti' 111' iiiiKli; " voluntary aH.si^'iinii'iil
5, ' ■•iicy, anil tlicrt'liy ol(taiin;il a <lisi'liari,'i'
u 'i ciiiiiiioxitioii ami iliMcluiii,'!! ilnly
,. . umli'i- tlit^ Insolvent Artol lS(i!», in tlu'
*.lu.,iult' til wliiili the iilaiiitill aiiprarnl as ;i
cnaitiir. Till' iilaiiitilt ri|iliiil, Htltinj,' out the :
c„uiin»itiiiii ill'''' vi'iiiatiiii. It iiiiriMiitiMl to I..!
Bi'i,!.' lit'twfi H ilfl'milaut ut thi' s.ti.ihI (lart, ami
twnitveiglit imisous oI' tlio lirst (lart, .It'Mcriliid |
iij •■all till' I'li'ilitor.H of Maiil iiisolviiit constitii- j
liii,, miiro tliau thu majority in iiumlicr of those
loftlu' oit'ilitois of saiil insolvent \vlio aie le
«l)crtivi'l.viTi''l'tiirs of s.'viil insohi'ut foi- suiiis of
f|(K) mill' iiiiwanlM, anil ivjiivm iitiiig more than j
thrirluurtlis ill value of tlievr lial.il'ties w hieh
trc siiliji'i't til he eoiiiputeil in aseertaiiiiiif,' the
■i.iiMitiiin ill niniiliei' ami value of his I'lcilitors
irliiihiivi'i'xeeiitiil these iireseiits. l''ioni this
aiilifivri'l tliiit three creditors were uameil in
f ^.eliciliile fur an aygreyato uinount of .'jl.'JTC,
wi'iu nut nameil in the deed as jiurties,
iki.iyli two (if tlielll had exeeuted it. The rep-
latiiii 'Viis ilfiiiiirreil to, and exeeptions taken
till ; Held, that the plea was had in not
f ' the deed was made for the henelit
8 tors ; and that the replieatioii to it,
iliewiii^ ...aC the deed was in fact not so made,
oil that it liiul not the assent of those creditors
^hii ri'iirt'st'iited three fourths of the value of
Sulialiilitiea which were suliject to he eonipu-
^ fill' tluit piU'iKise, was good: Held, also,
j»t tk' pie;! was defective in not shew ing that
Wtmhiiit WHS a trader ; hut that the reiilieatioii,
letting iiiit the deed in which he was descrihed
I luialiiuit, cured this defect ; Held, also, that
k Was iiiit necessary here, though in some eases
lluuM lie, to aver that the parties to the deed
ire cruilitiirs within tlio meaning of the act, or
)ni'gative the plahitilJ" heiiig a special creditor,
|»l)lii.'ariMg siillicieiitly from the nature of the
' 1 suicl fur tliiit he was not. Dridiji- v. W'tit-
, 33 y. U. 105.
[It is not i"j';t'83ary that an assignee in insid-
IcyshouU be a party to a deed of eompositiim
I (lischarijC. /'(.
B. & C). having made an assignment on the
kJuly, 18(iS, a deed of composition and dis-
■ge, ilatwl 8th August, was tiled 011 the I4th
KmhiT, 18(58, not heing then signed liy the
ilveiits. It was contirmed by the county
son the '.'ml Deeemher, ISOS, but the coii-
»tion was reversed in this court in March
wing, on the ground that the insolvents had
Mxeciiteil it. Afterwards in the same mouth
lUisiilvints executed the deed, withmit tiny
riiiu> kave from the Judge, anil without re-
i it ; anil they then set it up as a defence to
thisiii'tion pri'N iiiiisly hroughtona note : Held,
that the plaiutill, a noii-asHt'nting creditor, wm
not IpMiind liy this deed, fortius evidence (net out
in till I .'i.M') shi'\M'il th.it the menihers of thu in-
solvent hrni had individual ireditors, and it pro-
vided oid\ for partnership delits. I'er ItiehardH,
( '. il, Tile deed was invalid also, hecamiu not
pro[ii'rly executed liy the insolvents. I'er Wil-
son, .1. .'^iieh execution was not an alteration of
the deed, for thu insolvents lieing named in niul
parties to the deed Were only perfecting, not
altering, it hy executing ; Imt the ileposit of hucU
deed w itli and notice thereof liy the assignt'o,
miller sec. il, sul) s. 'J of the Act of lHt!4, were
necessary after the execution by the insolvents,
and for want of this, it was inetlectiial : Held,
also, that it was no objection that some of the
assenting creditors had exeeuted in the name of
their firms and by procuration, and that no
power of attorney was proved, for they had
aecepled the composiciou under it: Held, .ilgu,
that the pt.iintill' was not prevented, by h .ving
proved his claim before the assign"e, from going
on with this action. Allun v. (inrratt d dl., 30
(,». H. 1(15.
Held, I. TTiat a deed of composition and dis-
charge under sec. !• of the Insolvent Act of 18(54,
purporting to be between thu majority of tho
creditoi's of .'<l(M)aiid ii|)W;irds of the lirst part,
and the insolvents of the second part, is valid,
though the iiuiiii.tM ii/ihij creditors were not
specially made liarties to the deed. '2. A crudi-
toi' who has accepted the terms of a deed of
composition cannot afterwards contest thu eon-
lirmation of the discharge. 3. The Ubt of a
secured creditor who has elected to .iccopt his
.security in full of his claim, and obtained the
consent of the assignee to such election, ia not
to be estimated in considering the amount of
indebtedness. In /■<■ Lmcian it iti, 5 L. J. N.
S. ->;j'_'.— U. (.'. — Logiu.
A deed of composition and dtsiliargo under
see. 8, Hub-s. 4, of the Act of 1804, purporting
to bu between the insolvents of the first part,
and a majority of thu creditors of !*100 and
ujiwards, of the second part, was Held invalid,
because not executed by the insolvents. In re
(Id mill <■! III., L'8 (.}. H. "•JCtJ.
Su'jli a deed to bu operative, nnist provide
for thu separate creditors of each partner, as
well as those of the linn. JIk
Held, on exeeptions to the plea set out in the
report, that a deed of composition and discharge,
made without any proceedings in insolvency
(before or after), without any assignee being
appointed, and apparently wholly imtside the
insolvent court, cannot be a bar to non-assenting
creditors. (Incii v. Siroii, '2'2 C'. P. 307.
In August, 1872, the plaintiff issued a <i. fa.
against defendant's lands, a portion of which
defend.'vnt, in Novendier, sold to one K. On the
1st of May, 1873, defendant made fin assignment
in insolvency, and on the 3l8t obtained a deed
of composition and discharge from the necessary
proportion of his creditors. On the 12th of
August this was cwitirmed by the county judge,
and im the 1 5th of August defendant's estate
was rc-conveyed to him by the assignee. The
plaintiff was one of the duly scheduled creditoj-a,
but took no part in the insolvency proceedings,
and although requested to remove hia writ re-
HH^^^V!''
•i
fe ;;■
44;
BANKRUPTCY AND INSOLVENCY.
44«
'^: !•
fused to do so, and advertised the lands for sale,
contending tliat the sale to K. was a withdrawal
of those lands from the defen<lant's assets, so
that they never passed to the assignee ; — Hehl
that the plaintifl 's debt was diseharged by the
insolvuney proeeedings : that the fact of the sale
to K. could not alter the plaintiff's position ;
and that his only reniedj' was under the compo-
sition and discharge. The proceedings on the
ti. fa. after the assignment were therefore set
aside. Davidsun v. f'crry, 23 C P. 34G.
An insolvent having compounded with his
creolitors and had his goods restored to him,
resumed l)usiness, with the knowledge of his
assignees and creditors, and contracted new
debts. It was subse([uently discovered that he
had been guilty of a fraud which avoided his
discharge, whereupon he absconded, and an
attachment, under the Insolvent Act of 1809,
was sued out against him by his subsecpient
creditors : — Held, that they were entitled to
be paid out of his assets in priority to the for-
mer creditors. liuchatiau v. Smith, 17 C'hy.
208 ; affirmed on rehearing, 18 Chy. 41.
In such a case the assignee, as representing the
former creditors, was ordered to pay the costs of
a suit brought by the subsetiuent creditors to
enforce their rights. .V. ('. 18 C'hy. 41.
Declaration on
that the plaintiff
ment under the
ofttcial assignee,
became vested.
the common counts. Plea,
before action made an assign-
Insolvent Act of 18()0, to an
in whom the causes of action
Iveplication, that before action
the assignee, in conformity with a deed of com-
position and discharge duly executed, transferred
to the plaintiff all the estate, &c., theretofore
belonging to the plaintiff and then vested in the
assignee, llejoinder, that after the deposit of
the deed of composition and discharge with the
assignee by the plaintiff', the assignee did not
immediately give notice of such ileposit by ad-
vertisement as recjuired by the act : — Held, on
demurrer, rejoinder good, for by the statute the
giving of such notice is a condition precedent to
the reconveyance by the assignee, which withtjut
it does not bind non-assenting creditors. Held,
also, replication gootl, for under the averment
that the assignee (/«/// reconveyed, tiie plaintiff
would be bound to prove such notice, in the
absence of a confirmation by the judge, yirliol-
son v. Gtiun, 35 Q. B. 7.
(d) Ol/ier Caws.
The provisions of sec. 11 of the Act of 18()4,
with reference to notices, do not apply to an
insolvent who has a consent from his creditors
to his discharge, or has procure<l the executiim
by the requisite number of his creditors of a
deed of composition and discharge, and who is
applying for a contirniation of discharge. iSec.
9, 8ub-ss. and 10, point out all that is to be
done by the insolvent, to enable him to bring
his application before tlie judge. In re WmldclT,
2 L. J. N. S. 242. -C. C— Logic ; t". L. Chamb.
— Draper.
On an application for a discharge under sec.
9, sub-s. 10, of the Act of 18()4 : Held, unneces-
sary to mail notices to creditors under sec. 11,
snb-B. 1. In re fitarllwj et al., 2 L. J. N. S. 303.
— C. C. —Sherwood.
On application for a discharge ; — Held, on th*
facts set out, that the insolvent had an est it
to bo administered under the Insolvent Act'
Quiere, whether, if there had been no tstat
proeeedings could have been taken by the del tnr
—In re >Smith, 4 P. R. 80.— Chand..—A. Wii,o,,
Notice of application for discharge in t'ana4i
(ia/.ette, and not in Local (iazette ; — Hold gmj
cient. In re I/iijf'iiKin. 5 L. J. N. S. 71.— C. (
— Sherwood.
Held, on exceptions to the plea set out in the
report of this case, that a deed of udniixjsitiijn
and discharge made without any proufedinirg j,',
insolvency (before or after,) without any assMiee
Ijcing appointed, and apparently wlidlly dutaiii,,
the insolvent court, cannot be a bur to non-
assenting creditors. Green v. Swan, '22 C. P. 30;.
An antecedent debt in respect of which an
insolvent has duly received his discharge under I
the Insolvent Acts of 1864 and ISiJt), is aeon |
tinning debt in conscience, and a sutlieicnt wn
sideration for a new promise to pay it, iuxHf I
V. Gordon, 32 Q. B. 621.
Held, following Yarringtou v. Lyon, liCliv,
308, that a voluntary assignment to an otiicial
assignee under the Act of 18(54, sec. 2, isnotvalij
when the assignee has refused to acceiitoract
under it ; and in such a ciise a discliarge oljtaineJ
by the insolvent could have no effect. BirlM\
Blacklmrn, 23 C. 1'. 207.
On an application for discharge, the insolvent |
is entitled to read his own examination, thougl
taken at the instance of a friendly creditor ; ami |
the only question is, as to the weight to 1* at-
tached to it. In re Holt and Gray, 13 C'hy. M
Where creditors are called upon to accept i
composition, they are entitled to know wliere
the goods and money entrusted to the debtor
are gone, and to what causes tlie loss is to l)e
attributed. Iluod v. Dodds, 19 C'hy. G311.
An insolvent may be entitled to his discliar.-e
from arrest, tliough his conduct in trade niiy
have been such as to disentitle him to a certi-
ticate of discharge from his debts. lb.
.See In re Melhtc, 15 Chy. 408, p. 42C. iici*
nun v. liimnell, 19 C. P. 21G, p. 429.
Sec 11. p. 390.
9. Procedure.
(a) Appeal.
A demand for wages was made as a preferttii I
claim, to an .issignee. The creditors at a nifti 1
ing passed a resolution authorizing the assi^iw
to pay all claims for wages, Ijut the assii,ii«
refused payment of this claim as made, .^ttlia
time no dividend sheet had been prepared. i[
summons was subsetpiently issued by the coanti
judge, calling on the assignee to shew cause tIj I
he should not pay the claim, and, the assigw j
not appearing, evidence was taken hefore it j
judge, and an order made for the paraeaj
forthwith, with costs, of a sum less thin tie j
original demand. The assignees afterwards [ul I
the claim as reduced, but refused to ])ayutj
costs; upon which the judge's onler was nii« I
a ride of court, and execution issued tkmn I
against the goods of the assignee. Uponuj
448
449
BANKRCrPTCY AND INSOLVENCY.
450
lis clisi'liars
trs'lt itjy
|u til a ctra-
lb.
k2G. Dk&
appUcation for a writ of prohibition to prohibit
Ziher uroceedings in the County Court on the
Sorlr-lers. &c. = -Hel.l 1. That the county
luUe had IK. power to a.lju(licate upon the
.him until it liad been decided upon by tlie
limiec, a»'l in ^'"^ case tliere was no decision
^ tbc assignee to iippeal from /« n Cleuhnn,
,„,/ ihf Juiliie of the Count !i oj Lli/tii, and .}funn,
2L. J N. «• 133. -C. L. Chamb. -Richards.
1 a \)Kkw. 1
Id lit a niw
Ihe asigw I
the aisi|.w
lie. Attki
epaKii. i
k the coa* I
|v cause fkj I
|he assijwt ]
before t
J th.™ *
twanlsHl
rwMM
thewp«l
lipoid I
The Insolvent Acts of 186t & 1865, do not re-
niiire the petition in appeal to be signed by the
insolvent or his attorney. Notice must be served
' on the assignee of the day for presenting the peti-
i tiun to the court. The petition must be addressed
to the court, not to the Chief Justice; but this
irregularity may probably be corrected. Tlie
neglect by the assignee to tile the papei-s on or bc-
I fore the day of presenting the petiti(ni is no reason
Ifor rejecting the appeal, though it may be for
leulariting the hearing, and proceeding against
I the assignee for his neglect or contempt. Points
I not taken in the court below are not open to
Imrties in appeal. Semble, that the more , ro-
er moile of raising such technical objectioi's is
J, move a rule to set the proceedings asio o,
linsteaci of urging the objections on the argument
I of the merits, hi re Pan; 17 C. P. (i21.
On an application to a judge in chambers for
Ithe allowance of an ai)peal from the decision
■of the judge in insolvency, an order was made
sferring the matter to this court, without
ibtcting a special case to be settlecl between
he parties, but no objection was niiule on this
(ounil : -Held, that this Wivs only an irregu-
jity which might be waived, and if not waived
Bgh't to have been objected U> by a rule to set
liile tlie proceedings on that ground, in accord -
tee with In re Parr, 17 C. P. 621 ; and that as
ke iietition of appeid had been tiled by permis-
ion of the court, and the appellant authorized
I seive notice of hearing of appeal for a day
nieil, the case was properly before the court
(or adjudication. Jn re Sharjie, 20 C. P. 82.
.\ii insolvent had been refused an absolute dis-
large by a county judge, from whose decision
I appealed. The judge gave his reasons in
iriting, and concluded, " I must refuse his dis-
arge absolutely, and must deny the prayer,"
;-Held, an order which couUi be appealed
»ni, no formal order having been drawn up
»t signed. /« re Jones, 4 P. R. 317.— C. L.
limb.— A. Wilsnn.
[ Kotiee of appUcation for allowance of an appeal
I8t lie served within eight days from the day
I which the judgment appealed from is \>n>-
nnced, but the application itself may be after
I eight days. He Owenii, 12 Chy. 446.
j^Vhere the notice was served in time, but
Bed a day for the application which did not
the time the insolvent was entitled to, ami
I irregular in some other respects, the notice
I held amendable. lb.
Dbjections to the security on an appeal from
i County Court judge, under the Insolvent Act,
% are to be made t<i such judge. .S'. C. Jb. 560.
1 application for a discharge was dismissed
Rhc comity judge on 17th September. On
I23ri the insolvent gave notice of an intended
^cttion on the 24th t« a judge at Osgoode
'i for leave to appeal :— Held, that this notice
20
was clearly insnfticient, but on the .authority of
Re Owens, 12 Chy. 446 (which was, however,
doubted), and in favour of the liberty of a sub-
ject, the notici) was amended. Quii>re, as to the
materials that should be before the judge on
such an application. /« re Daridnon, 4 P. 11.
153.— C. L. Chamb.— A. Wilson.
E. , living at Brantford, and James and John
G., living in Dundas, carried on business at
Brantford under the name of E. & Co. ; and
James and John ' i. had also a separate business
at l)un<las, i*- v.hich I'l had no interest. On
the 14th December, 1809, .James and John G.,
ivs individuals, and as partners in the firm of
James and John G., and as individual members
of the Krm of E. & Co., executed an assignment
under the Insolvent Act of I8()9, in Wentworth,
of their and each of their estates to one F., an
official assignee in that county. On the follow-
ing day E. made an assignment of his estate,
under the act, to an interim assignee in the
county of Brant, and V. was afterwards appointed
assignee by the cruilitors. K. & Co., creditors
of E. & Co., filed a claim in Brant under E-'s
assignment, which other creditors objected to,
and the assignee, having heard the parties,
made his award : — Held, that the county judge
of Brant had jurisdiction to hear ur. appeal
against such award, although James and John
G., the co-partners of E., had not joined in his
assignment ; and a mandamus was ordered
directing him to hoar and determine such apjieal.
In re McKenzie et «/., 31 Q. B. 1.
When an insolvent, who has appealed from
the decision of a county judge refusing to set
aside an attachment against him, dies during the
pendency of this appeal, and no personal repre-
sentative has been appointed, the appeal fails.
Lawrie v. McMahon, 6 P. R. 9.— C. L. Chamb.
—Gait.
The county judge has a general jurisdiction in
matters of insolvency, and may sanction a suit ,
in the name of the assignee for the benefit of
the estate, notwithstanding a majority, both in
number and value, of the creditors pass a reso-
luti(m forbidding further proceedings. In re
Lamitt, 13 Chy. 391.
The assignee ai.pe.-vled fnnn such an order in
the interest of the creditors, whose transactions
the suit impeached for fraud, and the appeal
was dismissed with costs ; the court observing
that it was not his duty to appeal from such an
order at the expense of the estate. Ih.
Where the affidavits on which an allowance
of an appeal from a County Court judge was
sought were not intituled in any court, they were
not allowed to be read. In re Sharpe. 2 Chy.
Chamb. 67. — VanKoughnet.
An objection that no written order of dis-
charge (against which it was sought to appeal)
was produced, was considered fatal. Ih.
Wlierc the appellant was described as Wm.
Darling, and the opposing creditors appeared to
be Win. Darling & Co., it was considered ground
for refusing to entertain the appeal. Ih.
An appellant in insolvency must apply
promptly. Ih.
The decision of a County Ctnirt jud^e on an
application l>y an insolvent for his discharge
IMI
m
'I
I : ;■
1
1
;
I
1)
I
I
1
451
BANKRUPTCY AND INSOLVENCY.
452
from imprisonment, is appealable. Ilnod v.
Z)o(Zf/((, I'J Cliy. 039.
A petition of appeal from the tlocisiou of a
County Court judge, acting in insolvency, need
not set out all the evidence, documents and
materials uaed before the judge. What is needed
is, that either the petition, or the notice accom-
panying it, should shew to the opposite party
the objection wliich is taken to the proceedings
appealed from, and the materials to be used on
the argument of the appeal, Ih.
An order in insolvency was made on the 24th
day of December. The fifth day thereafter fell
on a Sunday : — Hehl, that service of notice of
api)eal on the Monday following was in time. ///.
It is not necessary that the security to be given
on an appeal in insolvency should be executed in
presence of a judge. Ih.
See III re Botxford. 22 C. P. 65, p. 420 ; In n
Chaff,'!/, 30 Q. B. 64, p. 423.
(b) Other Matterx.
A witness appearing upon an order granted by
the judge under sec. 10, sub-s. 4, of the Act of
1864, is not bound to be sworn until his expenses
are paid. iVorthiiii/ton v. Taylor, 10 L. J. 304.
— C. C— Logic.
The insolvent who appears by virtue of the
same order, is not entitled to claim his expenses
before being sworn, and he may be examined be-
fore as well as at or after the meeting mentioned
in subs. 1 of s. 10. If>.
A person summoned as a witness cannot refuse
to give evidence respecting his own dealings with
the insolvents, by alleging that he is a creditor.
hire Hamilton, 1 L. J. N. S. M. — C. C — Logie.
A disagreement having arisen between the
majority in number and the majority in value
of the creditors, a motion to adjourn, under sec.
11, 8ub-8. 2, of the act of 1864, w.as opposed by
the latter ; whereupon application was niade to
the county judge to dispose of the matter, who
ordered that the majority in number might ^)ro-
ceed in Chancery, in the assignee's name, against
the majority in value : Seml)le, that neither
j)arty could legally oppose the adjournment, if
insiateil upon by the other, as the objecting
party might thus prevent the judge from adju-
dicating between them, as intended by the act ;
but that such adjournment should have followed
as of course, and upon a similar division of opin-
ion the judge should have decided between the
two sets of resolutions, and might then have
directed the assignee to proceed in Chancery, or
otherwise contest the claim of those creditors
whose debt was disputed. But held, that the
judge had power to make the onler in question,
and it was not, therefore, advisable to interfere
with it. In re Lamb, 17 C. V. 173.
Under the Insolvent Acts of this province a
creditor, whose debt is iinmatured, may com-
mence proceedings against his debtor who is in-
solvent, in like manner as he might have done if
his debt had been over-due at the time. In re
Moor--, 18 C. P. 446.
An insolvent cannot legally be committed
under sec. 29 of 29 Vict. c. 18, without an
opportunity of shewing <••. e, and it should
appear in the order of committal that he lias ha,l
notice of the order for delivery, &c., fi)r nor,.
compliance of which committal is aakeil. y,, ',
Hich, 5 P. K. 88. -C. L. Cliamb.— llaf,Mrty. .^
Mclnne-f v. IMci'lvjn, 4 P. II. 183.
A bill Wivs filed by assignees under the act to
set aside a settlement by the in.solvcnt, ini the
marriage of his daughter, with a .secret tnist in
his own favour. The bill charged tliat tli
insolvent defendant was in the enjoynifiit nt the
property, and prayed costs against all the ilcfi],.
dants. A demurrer by the insolvent, (m the
ground that he was not a proper i)arty, was al-
lowed. iVilKon V. Chisholm, llChy. 471.
Certain funds had come to the liaiid of an
ofHcial assignee, but were payable tu eiKiim.
brancers un<ler claims arising befoi'e tlie mi,\.
vency ; the judge in insolvency under the Act
of 1864, had ordered certain costs of the iiisi,|.
vent to be paid thereout. On appeal such nnkr I
was reversed. Re Stewart, 3 Chy. Chamb. (),)._
Mowat.
See Allan v. Garraft, 30 Q. B. Ki."),
Nlrholioii V. Gunn, 35 Q. B. 7, p. 447 r,
Atkim,<2. L. J. N. S. 25, p. 419; O'liieHin-
Hose, 18 Chy. 33, p. 420.
See VI. 2, p. 410 ; VI. 8 (d), p, 417.
10
Other Caset.-.
a note made l)y defendant,
Declaration on
payable to plaintiff. Plea, on eijuitalile grouin
in bar to the further maintenance of the action,
averring the pendency of proceedings eniniiaiiwi
by plaintitf against defendant, under "The in-
solvent Act of 1864, " for the same cause nf actiun,
subsecpiently to the declaration in this cause :-
Held, bad. Baldwin v. Peterman, 10 C. P. ,310.
Sale of goods by assignee not duly appointed.
— -Warranty of right to sell. — Lial)ility. Mn-
Hton v. Barher, 20 C. P. 228.
Held, that see. 50 of the Act of ISIiSf w.isurit
beyond the power of the Dominion Parliament
as being an interference with pro))erty and a\i
rights, but was within their exclusive authnritj
over bankruptcy and insolvency. L'riimhV v.
Jaeknon, 34 Q. B. 575.— A. Wilson.
Declaration by plaintiff as assignee in insol-
vency of McM., on the common counts. Plea,
that McM. was not a trader witliin the meaninj
of the Insolvent Act of 18(>9. Kejiliiatiiin hy
way of estoppel, setting out in full the prucwl-
ings and adjudication in the liisulvciit Court,
shewing that an attachment in insolvency issueil
against McM. , that he petitioned the judge to
set it aside on the grounil, among (ithcrs, that
he Wiw not a trader within tlie act, that the
judge decided that he was a trader, and that
such decision was affirmed on appeal hyi'neol
the judges of the Common Pleas ; ilcM, on de-
murrer, plea good ; though the more formal jila
would have been one denying that the pl:iuitin
was assignee of McM. in manner and form, to. ;-
Held, also, replication botl, as such :idjudioati(«
and proceedings were not conclusive, at >B
events as against a debtor of McM., but weresnb-
ject to {juestiou in this court. Unire^ v. ^(Anlr,
33 Q. B. 252.
Leave to take issue on the plea, reply sj'C'*
and demur, was refusod. S. t'. 9 L. J. ^• Si- '*
453
BANKRUPTCY AND INSOLVENCY.
454
Heltl, that the Act of 18()9 regulates the pro-
oeihire' after its passage, in insolvency procced-
iniK cominciiceil under tiie Act of 18(>4, and
consciiueutly that the discharge of an nisolvent,
1 , i,j,i made an assignment under the Act of
Li intituled " The Inmdvent Act, 1869," was
IS 6'm-«.;/'- V. Tan; 6?. K. KJa-C. L.
Chainb.-U!Hton, V. C. <(• P.
-V voluntary assignment to an official assignee
m,>r ♦!:; Act of 1 8()4, s. "2, is not valid unless
■iccepteii liy the assignee. Yiirrhnjtou v. Li/uii,
liCliy.308.
\n insolvent may be entitled to his discharge
fnim arrest, though his conduct in trade may
iiive teen such as to disentitle him to a certiH-
citeof (lischargt! from liis debts. J/mid v. DodiU,
llll'hy. ()3!l. _^
VII. Foreign Bankruptcy L.\ws.
\ foreign law authorizing the discharge of an
iiiscilvent debtor must be directly provcil, and
the court will not listen to an application for the
(li5;'harge of such person after he has allowed
juili'iufut to go by tlefault, and is in execution.
Bmn V. Iludmi, Tay. 340.
Wliere the person of an insolvent del)tor is
' discharged from arrest by a foreign authority,
[ this court will not set asiil an arrest made under
tlic process of this court for the same cause of
tctioii, it not being bound to model or resirain
ib course of proceeding by that of other countries.
1 Ik 390.
An " .•Vet and Warrant " under Imp. Act 1!)
IJOVict. e. 79, (Scotch Bankrupt Act,) though
Icontaining no attestation clause, without a wit-
hess to its execution, and specifying no lands in
irpper Canada, is capable of registration. Koli-
lion V. t'arinmti'i; 1 1 Ohy. 293.
To an action on notes against the makers, who
Uere members of a firm carrying on business
Ijiere anil in (llivsgow, (me defen<lant pleaded, (m
[lijuitable ground's, in substance, that proceedings
"nbankruptcy had been commenced against them
1 Scotland, in the proper court there, and seijues-
■atiou of their estates awarde<l, and a warrant
Itf iirotection granted to them ; and that in such
Mceedings, which were still pending, the plain-
duly proved his claim against them, includ-
{pg these notes. Another defendant set up a
"milar defence, but averring only that the pluin-
ff, who had notice of the proceedings, could
1(1 ought to have proved ami still miglit prove.
kereiii for the notes declared on : — Helil, cm de-
iurrcr, Iwth pleas bad, for that a seijuestration
1 warrant of protection, under the Bankrupt
btland) Act, 185(), before a tinal discharge,
nu no liar to this suit. Rohinmii \. MrKi'iiiitl
p(i/,i3Q. B. 3,-)9.
To an action ou a promissory note made in
ke United States, defendant pleaded his dis-
prge under the bankrupt laws there ; to which
plaintitf replied, that by such law the dis-
arge was fraudulent and void, because the
ifcndant, in the schedule att.ached to his peti-
Ipn, had fraudulently, and with intent to prc-
Int the nlaintilf from sharing in his estate or
Ji'sing his discharge, omitted any mention of
i plaintiff or his claim. The omission was
joved, and the law of the U. S. was stated to
that such omission, unlesa fraudulent and
)i«i, would uot avoid the discharge ; but it
was not shewn whether the assent of a certain
number of creditors or the payment of a cer-
tain dividend was reijuisite, or whether there
was any provision which would shew a motive
for the omission. The defendant swore that his
reason for the omission was, because he thought
the claim was paid : that in 1805 he had left
property with one ('. to sell and pay it, among
other debts, and told plaintiff's brother, who
then held the note, that he had done so ; and
that as late as iSOH he hud seen him, and he
never mentioned the subject, nor had he at any
time been asked for the money. The brother,
in answer, said he had ..dked for payment, but
did not state the time : — Held, leave having
been reserved to move for a nonsuit upon the
whole case, that the rule shouhl 1)0 abscdute ;
for though upon the plaintiff's evidence the mere
omissitm, unexplained, might affcn-d scmie evi-
dence of fraudulent intent, yet this wns repelled
by the unilispnted facts sw(u-n to by defendant.
Fo.sl,r v. Ttn/lor, 31 Q. B. 24.
An agent claimed to retain possession of pro-
perty for his indemnification in respect of certain
acc(mmi xlation notes given to hisprincipals living
in England, before the bankruptcy there of the
latter, on which, however, he had paid nothing ;
and he disputed any liability to the holders in
respect thereof : — Held that the assignee in
baukrui)tcy was entitled to a receiver. Ki'iiip v.
Jviicx, 12 t;hy. 200.
In such a case the defendant set up a defence
fountled upon a verbal agreement proved by his
own affidavit only, and inconsistent with a writ-
ten instrnment which purporteil to contain the
agreement entered into between the parties, such
agreement having been drawn by defendant him-
self, a practising attorney and sidicitor, and exe-
cuted by all the parties. The verbal agreement
was said to have been omitted from the writing,
through the confidence existing between the par-
ties : — Hehl, that the defence oughtnot to prevail
on a motion for a receiver. Jh.
A receiver granted, with liberty to defendant
to propose himself as such without salary. I h.
See Pliillijis V. Massnti, Q. B. 20, p. 392 ;
Mnuhon v. Commcrrhil Bunk, 2 Q. B. 338, p.
395. See also Cifii of d'/fisiiou' Binik v. Mitnloch
,'t al., II C. P. 138.
VIII. MiMCKI.I.ANEOlS Ca.SEH.
A bill was tiled on behalf of a married woman
by her next friend, who was procured by her
scdicitor so to act, but without her privity ;
the next frieiul being at the time insolvent,
and no security for costs being given, and no
written consent of the next friend being filed
with the 1)111. On an aj)plication to take the
bill ofl' the tiles, it was ordere<l that unless
the plaintiff's bill be ameivled by substituting a
proper person as the next friend, the bill should
be taken off the Hies, and costs were allowed to
<lefendant, Water.^ v. Piti-i:-!, 8 L. J. 328.— Chy.
Ohanib, — VanKoughnet.
Where the estate of a bankrupt is sufficient
to pay in full, and a surplus remains, interest
must be allowed on all debts proved under the
commission, where the debt, by express contract
or by statute Injars interest, or where a contract
to pay it is implied, but on no other debts will
interest be allowed, lie Lumjstajf', 2 Chy. 165,
i
PL ■•,
if 'I'
^mm
io5
BANKS.
i! ■■ ■ '5 .
'ii >:
Wlien a suit becomes defective by the insol-
vency of the phiintiff, subseciuent proceedings
are not wholly void, but on the fact being
brought before the court such order will Iw made
as may be just. McKfiizie v. McDonell, LI Ohy.
442.
Where a suit was commenced in the name of a
person who had previously assigned his interest
to a creditor by way of security, and the plaintiff'
became insolvent before decree, but the cause
proceeded to a hearing without any change of
parties, and a decree for the plaintiff was pro-
nounced, the court made an order at the instance
of the defendant staying proceedings until all
proper parties should be bnnight uefore the
court. III.
Where certain creditors of a deceased insol-
vent sued his executor, recovered judgments
sold his real estate, and got paid in full : — Held,
that they were still bound to account, and that
the other cred'tors of the insolvent were entitled
to have the whole estate distributed pro ratfl
under the act 29 Vict. c. 28. T/ie Bunk of
BritM North America v. Ma/lori/, 17Chy. 102.
The insolvency of a trustee, or his leaving the
country in debt to reside in a foreign country, is
a' sufficient ground to remove huu from the
trust. Gray v. Hatch, 18 Chy. 72.
This court has jurisdiction, and it will exer-
cise it to prevent the creditor of one partner
obtaining an undue j)reference over the creditors
of the firm by means of proceeding in tliis court.
When, therefore, a purchaser at sheriff's sale of
the interest of one partner tiled his bill for an
account and receiver, and the receiver obtained
possession of the stock in trade, leave was
granted to a creditor of the firm to take pro-
ceedings in insolvency, and the receiver was
directed to hand over tlie assets to the assignee
in insolvency when he sliould be appointed.
Fekin v. Mcaill, 3 Chy. Chamb. 68.— Strong.
Delay for seven years in suing held no objec-
tion to a party's right to set aside a deed as
fraudulent against creditors, where the position
of the parties to the impeached conveyance had
not been materially altered by the delay ; if that
were shewn, the court has the power of modify-
ing the relief given, so as not to wrong the
parties ; or it might, in its discretion, refuse to
give any relief, i'urrk' v. (IUIi'kjhc, 21 Chy. i;(j7.
A motion by a defendant to dismiss after an
abatement issued by the bankruptcy of a sole
plaintiff and before revivor was rofuse<l ; his
proper course being to serve the assignee of the
plaintiff in insolvency with notice to revive
within a limited time. Caim-ron v. Eaijcr, (i P.
R. 117. — Chy. Chamb. — Holmested, liifi'rt'c
The deposit recjuirod to be made by foreign
fire insurance companies is intended for the
security of Canadian policy holders ; and on tlie
insolvency of any such company, the general
creditors of the company are not entitled to
share the deposit with the policy holders. In re
the jEtna Innuraiicv (Jompami of Dutdin, 17 Chy.
160.
In case of a deficiency of assets, the costs of
creditors in proving claims are to be added to the
debts, and paid proportionately, and are not
entitled to be paid in priority to ^he debts, lb.
4oj
BANK8,
I. Liahilitv of Dikectors and niri,r„
5(). '
II. CuEguE.s, 457.
1. Payment by — See Payment.
III. Dei'osit Rei'eipts, 458.
IV. Takino Collateral Secukitv.
1. Morti/aijcn, 4(i0.
2. Jii/I.i of Lailbm and Warchnmt ft I
cvlptK — See Bills of Lamxi' /
Warehou.se Receh'ts,
V. Dutie,s in Connection wrni Biik m.
Notes, 460. ' " '
VI. Failure of, 461.
VII. Savin(4s Banks, 462.
VIII. Special Chahteics.
1. Bank oj ISrUixh Xorth Amcnoi 4i;'|
2. Bunk of Upper Canada, 4()2.
,3. Royal Canadian Bunk, 464.
IX. M1SCELLANE0U.S Cases, 464.
X. Usurious Tr.vnsactionh— .sVe u.sirv
I. Liability of Directors and Ofhieb,
A bond may be given up to be caiiuullwl kl
the president and directors of a l.ankiiigcuni'J
ration, without their assent being signified iiinleJ
the corporate seal. The /'re.vilriil ,[,■ „;(i,|
Bank of U. C. v. Widmer, 2 0. S. 2l>L>. ' '
Plivintiff was teller of a bank at n iiidi a mmI
of defendant became due. Defeiidiiiit mid iol
to plaintiff' a sum afterwards <lisi;(ivi'iid t(il«|
£25 short, and plaintiff was conipelled to mkel
it good to the bank: — Held, Mclean, ,J,, JiaJ
that he could recover it from defendant as nioiiejl
paid to his use. Iiirern v. Boe, 4 C. P. 21.
Held, that the defendant (sued jointlv \riill
others as a member of a committee) ra 1
responsible for the salary of a lersoii emplivfl
by the committee (under a joint stuek \mii
charter) prior to the time of his IjetvmiB
stockholder in the b-mk, and a niemlier nf tl
v..._mittee. Min<iaye v. Burton tt al, 10 Cl
P. 60.
The plaintiff sued defendant a.s directorc'l^
bank, alleging in substance that in a,rii)(irtn
to the shareholders in 18(i6, and a stiteu
accompanying it, the defendant falsely ami fm
dulently misrepresented the condition nf I
bank, over estimating the assets and umlerei
mating the liabilities, therel)y indneingilefeiKJi
to believe it sound and to purchase stock.-j
Held, upon the evidence set out intliecar
That there was no evidence of fraud siittiiientli
maintain the action —that is, of false stateme*
knowingly made by defendant witli a framli
intent. The nature of the fraud r^iiiiwllj
sustain such a charge considered, ami tlieaslk
rities revieweil. 2. That the I'tpdrt was aotj
representation within C. S. (J. ('. c. 44, iHf
as to require it to be signed l)y defeinlmt;!
That if the statements were false and framli '
defendant would be liable, although they 1
made to the stuckholders, fur tbuy were inta
457
BANKS.
458
Parb'r v. Mr-
Md used for public information.
The directors and managers of incorporated
lianks are (luasi trustees for the general l)()dy of
stockholders, and if any loss shouM accrue to
the baiik by their infringing the statute against
irv thev would be liable individually to make
itgwL Drake V. Bank of Toronto, OChy. 1 l(i.
II. CUKQUES.
Where the plaintiflF's agent had paid into an
aeeiicy of the (lOre Bank at Simcoe a sum of
niiiney, partly in cash and partly by chonue on
♦he Commercial Bank at Toronto, to be placed
to the credit of the plaintifi' with the (iore Hank
I J Hamilton, and the agent at Simcoe took upon
the wliole sum the usual commission of a (juarter
pel
[los
cent, for transmission
IJUil
but the che(iue was
md
Ut in l*i"K ^''"* f^*'"' Hamilton to Toronto, ;i
I was never paid by the Commercial Bank ...
credited to the plaintiff :— Held, that the plaintiff
eouU not maintain an action against the Gore
Ifiank for the amount of the cheque as money
lliatl and received to his use. Todd v. (lore Bank,
liy.B. 40.
\ cheque here may be post-dated, though in
lEuLland it is pndiibited by the stamp acts.
Iwiiere such chctpie is payable on demand, no
lavs of grace are allowed. Where, on the same
,v that the chcciue was dishorn lured, dcfoiidaiit
lid £150 to the holder on account of it ; —
lUible, sutticient to excuse notice of non-pay-
nt, though ho declared that he was then
lonuit of such dishonour : — Held, under the
idcnce, that the pleas setting up want of con-
jeration, and denying plaintiff's property in
le cheque, were not proved. Wood v. Slijilini-
,16Q.B. 419.
Detinue for a che(iue. Plea, that defendants
lived the cheque from the plaintiff' to present
collect it from the bank on which it was
iwn : that they did present it, Init payment
refused by the bank manager, who retained
keeps the same, alleging that the names of
drawers thereto are forged : — Held, a good
tence ; for if the checjue was forged the deten-
was rightful, and if genuine, defendants lost
itrol over it by no wrongful act, and the [)lain-
roniedy was against the bank. Brown v.
»f</oii<'rf(i?.,2lQ. B. 438.
tTlic idaiutiff opened an account with defend -
l«, as bankers, by getting them to discount for
k two acceptances for |500 each, payable to
I endorsed by him, and to place the proceeds
Vs credit. He afterwards paitl in a furtlier
, and hail drawn out by cheijnes all except
, when the two bills were returned dis-
)oured :— Held, that defendants were entitled
fply the halauce in hand in part payment of
[ acceptances ; and therefore that, having
80, they were not liable for refusing to
kur the plaintiff's che(iue. JoncM v. Bank of'
fml, M Q. B. 448.
I, a private banker, exchanged eheciues with
V mutual accdmmwlation. A. used B.'s
jiies. A cheque of A. 's had been dishonoured,
Ihe holder called at A. 's office on the same
I «nd a clerk in the ordinary course of busi-
igave the holder B.'8 cheque to pay the
Vowed cheque. Next day A. stopped
payment :— Held, that the holder could recover
against B. on his che(iue : — Held, also, that
under a plea of not the holder, H. could not set
up any supjioscd right in A.'s assignee, nor
possibly under any pleading on these facts. Cili/
Bank v. Snillh, 20 ('. 1". 93.
The plaintiff having a bank account with de-
fendants' agency at St. Oatharines, deposited
with them on Saturday moniing, about 11.30,
a che(]ue of ('. on another bank in the same
place, for .*3.")0, payable to the plaintiff or bearer,
and not endorsed. 'I'he sum was credited in the
plaintiff's ])ass book as cash, and the cheque
stamped with a stamp used by defendants as
"The i)roi)erty of the Quebec Bank, St. Catha-
rines." ()n Monday morning it was presented
for payment, and dishoiKJured ; but it would
have been paid if presented on Saturday before
the Ijank idoscd, which was about one o'clock.
Defendants having charged the amount of the
checiuc to the plaintiff', be sued them for money
had and received and money lent : — Held, that
be could not recover, for <lefendants were not
guilty of laches ; and Semble, that they could
have recovered back the amount from the plain-
tiff, even if they had paid it to him. Owens v.
Qhi'Iwc Bank, 30 (I B. 382.
If a bank refuse to pay a checjue having suffi-
cient funds of the drawer for the purpose, the
ludder can c(nni)el payment in ecjuity. But the
fact of there lieing sutticient .at the drawer's
credit in the bank ledger when the cheque was
presented, is innnaterial, if the ledger did not
shew the true state of the account. Oore Bank
V. Ilojial Canadian Bank, 13 Chy. 425.
The Ivoyal ('anadian Bank held a draft pfiyable
in Bufl'alo, and accepted by a firm there, and for
which they held in security certain flour. On
the day before the draft matured, it being sug-
gested by the drawer that the flour had not been
sold, the bank agreed to discount a renewal
<lraft on the same parties and on the S!Uiie secu-
rity, and passed the proceeds of the renewal to
the credit of the drawer, but neglected to charge
him with the original draft. Before the letter
from the l)ank to their Buffalo correspondents
respecting the transaction reached Buffalo, the
flour was sold and the original tlraft paid by the
drawees, and they therefore did not accept the
renewal : — Held, that the drawer was not en-
titled to demand from the bank the proceeds of
renewal ; and that the holder of his che(]ue was
in no letter situation than the drawer. Jb.
III. Deposit Rei'Eipt.s.
To an action on the common money counts
and account stated, defendants pleaded, by way
of equitable defence, setting out a deposit receipt
for moneys from them to plaintiff', to be accounted
for by them to plaintiff, and, in substance, that
the plaintiff" had, for good and valuable considera-
tion, transferred all his right, title, and interest in
ecjuity, to receive and (lemand payment of the
fund, which defendants had paid over to the
transferee. He])lication, on e({uitable grounds,
in ctf'ect, that defendants did not Iwnil fide pay
the amount of the claim, to a person or perscms
to whom i)laintiff ha<l, for good consideration,
transferretl all his right, title, and interest in
eipiity, to receive and demand payment of the
fund, but that he parted with the security under
:'ym
II'
-1 . !
m-
459
BANKS.
4C0
I'
circmnstancos whicli, at best, gave the transferees
an equitable charge upon the fund, the extent of
whicli had to be determined by certain acts to l)e
done by them ; and tliat they having taken no
steps to ascertain the extent of the eliarge, the
plauititf, before the alleged further transfer l)y
them to certain i)artie8 (set up by the plea) and
before payment by defendants, notitied tliuni
that he <iisputed the validity of the e(iuital)le
charge, and not to rccogni/e it or pay any of
the fund in respect of it, which defendants
agreed not to do, but afterwar<l8 paid the same :
—Held, a good replication. Mnndir v. Jfoi/nl
CanudiuH Hank, 20 V. V. 1-25.
Deposit receipts for money, given by a bank,
are not negotiable instruments in e(iuity any more
than at law, so us to entitle the holder to demand
payment of the fund secured by tiiem. Ih.
Plaintiff deposited with defendants a sum of
money .and received from tiiem the usual dejiosit
recei])t, stipulating for payment of interest pro-
videit the money remained not less than three
months from date of deposit, and providing for
fifteen days' notice to be given of its withdrawal,
on which notice interest was to cease. Sulise-
quently plaintiff endorsed an order thereon to
pay S. & Co., and delivered it to the endorsees.
Before S. & (Jo. notified defendants of the trans-
fer to them, the plaintiff gave them notice that
he revoked and countermanded it, but defen-
dants, notwithstanding, paid it over to. S. & Co. on
receiving an indemnity from tlioni. Vlaiiitiff
subsequently made a formal demand upon de-
fendants for the money, which wiCJ not com-
plied with. Qua-re, in an action by plaintiff
against defendants, how far defendants were
authorized to set up, in answei, as a payment
good in equity, th.it the deposit receipt had been
transferred by plaintiff to S. & Co., and that they
had paid S. & Co. accordingly. ,S'. r. 21 C. P. 4!)2.
M. deposited a sum with the plaintiffs, and
soon afterwards absc(mded. The bank had given
him a receipt, stating that the money was payable
on the production of that document. A writ
of attachment issued against the depositor's £)r()-
perty under the insolvent acts, and the defend-
ant Little was appointed official assignee. He
demanded the money without j)roducing the
receipt, which never came into his possession,
but the plaintiffs had notice of the attachment
and of his appointment. He then sued the plain-
tiffs for the money. The action was restrained
by an interim injunction issued in this suit, in
which the plaintiffs reipiired the defendant Little
and another claimant of the money, whose claim
accrued after the attachment, to interpleatl. The
court, under the circumstances, — Hehl, that the
plaintiffs ought to have paid over the money to
the assignee, and decreed that they should pay it,
with the costs occasioned to the estate by their
refusal. Bank of Montrml v. Littli', l7Chy. 313.
A condition, on a bank deposit receipt, that
the receipt should, on payment, be given up to
the bank, may not be void ; but it does not en-
title the bank to retain the money in ease the
receipt is not forthcoming ; the depositor is en-
titles, on proof of loss and indemnity (if retjuired),
to relief in equity. S. 6'. , 17 Chy. 085.
See Todd v. Gore Bank, 1 Q. B. 40, p. 457 ;
Hmtev V. Wallace, 14 Q. B. 205, p. 462 ; (Hhh-
iwj V. Hopper, 6 O. S. 505, p. 465.
I IV. Takino Collateral SEcunrn.
I 1. Morfijoiji'x,
i HeM, that the mortgage of goods to thepl.iin
I tiffs, taken under the circumstances statfil in
j tliis case, was vahd, having been taken Ijywav
I of additional security for a debt fimtracfei]
[ to the bank in the course of its liu.sjiieJ
i and therefore within C. S. C. c. r>4, s. 4 m,,i'
-;/• Monlmil V. Mc Whirtn; 17 C. P. ml.
The chartered ))ank8 of this province have
right to a decree of foreclosure upon a indrtuaw
hehl by them as security. Bank uf C r I
Si-(,tt, « Chy. 451.
The customer of a bank created a miirtmoe
in favour of the institution by the (Iqinsft i,f
title deeds. In a suit to realize the scciiritv
tiie debtor swore that the deposit had lictiuiiade
to secure certain future advances, all (jf vtiiiiii
had been paid oft'; the officer of the hanii m
the otiier hand, swore that the security nas
rc(|uired liy the bank and given by tlie debtor to
sc'. ure all his indebtedness, past as well us future
and a memorandum endorsed at tlie time of the
<leposit on the envelope containing the ika^
was to the same effect. The court, in tlie vieir
tiiat the deposit, if made as alleged by the hank
was lawfid, while if made for the purpose statoi
l)y the debtor it would have been illegal, made a
decree in favour of the bank with costs. Jtml
l.'anad'mn Bank v. Vumrnvr, 15 Chy. 627.
See Till' Trnnlei'n of f/ii' Bank of T. ('. v. yj,
CiinadiiiH NaiHijnliim Coinjiiini/, Ki Chy. 479, n
464; dommi'rrial Bank V. Bank of' ['. C'.,7t'iiv
423, p. 4()3; MrDoni'/l v. Bank' of C. C To
B. 252, p. 4()3. '
V. !)i"riE.s IN Connection with Hiils ixii
NOTE.S.
Held, under the evidence in this case, tk
the l)ank were liable to the plaintiffs for want of j
I)reseiitment of a note endorsed to them hv tie I
plaintiffs for collection, notwithstanding a notice
issued by them, and which tlie plaintiffs 1 '
received, that all notes delivered to them k j
collection should be wholly at the risk of tk I
persons leaving them, and that they (thedefeml-
ants) would be responsible only for monejij
actually received in payment of such notes, Irtj
not for any omissions, informalities, or mistat* I
in respect of such notes. Bvovni- et uL v, Cm. (
ninrial Bank, 10 Q. B. 129.
A. having shipped grain to Oswego on Ijelillj
of one 1*., to the care of L. AV. k Co., iml
against it, and gives the draft and bill of lailii||
to defendants, with the following endorscueitl
on the latter, "Deliver to I. &J. Lewis, (
subject to a draft drawn by me at 30 ilays Ir* I
the 10th of August, for .^2,259.10. .SigiietlwJ
R. A. C, D. E. McL." The defemlants (1*1
counted the draft, and upon acceptance tWwit j
handed over the bill of lading to the acoepton,!
who failed to pay the draft at maturity :-HeH|
that the defendants, under the iircumstan«il
were not responsible for the loss. (M'tot^f
V. Citj/ Bank, 10 C. P. 51.
A bill of exchange was sent by a baiikiMi»j
stitution in the Uiiited States, to a tail i
Toronto, for "collection and remittance, " fc|
accompanying which was a bill uf lading '<
461
fiANKS.
462
inOOOlmsliels of wlicftt, whicli, on the bill of i
' ' liaiiKO being acuei)tu.l by the .Iraweos, was I
Mivereil ovur to them, they bunig the consignous ,
l„™lin such bill <'f lading :--Heiaatlirniing'
Heneh, tliat it was
ai'ent of
ho imlinnont of the Queen s
wttbe .luty of the bank here, as the .,
ich foreign liank, m the absence oi speenvl in-
!tr,ipti(ms, to retain the bill of lailing nntil the
atructions, - .
,,ill „f exelnnge was paul.
„l Firr /ii.s. Co. Hank v,
•284 ; •-' 1'- & A. 282.
itii nn litlul
1 Co., ilmt
111 of ]sl^^
Tjiulorsemeil
vi9,08we^
|0 (lays fw
Sigue'
l-uilants il*
Ince tktsi
le accepW'
|ity:-M
IhankiM*!
a law'
tanw ' '''■
le
77ir' \\"i.-<riiii.iiii
\l(tnni' I'll'' ''"■'' ""'• * "• """" '• ""I''' "J "■ -^ ' ■
Kvideuce having been given as to the custom of
merchants in such c;wes both in the IJ. S. ami
•v«i(la — Held, that the latter only could be
Srial. ,V. ('., 21 Q. B. 284.
The declaration alleged that L. & (!o., drew a
bill of excli:mge for §(ii».72 on the itlaintill', pay-
«l)le to the order of themselves at detemlant's
bank and endorsed it to the defendants, and
that It was duly presented by the defendants to
Blaintiff, and was duly accepted by the plaintiiV;
vet that defendants with full knowledge of the
rlaintitf having so accepted, negligently and
without reasonable or probable cause, after-
wards caused the said bill to be protested for non-
icceptaneehy the plaintiff', whereby the plaiiititf
wsj injured in his credit and business with the
drawei-8 and others ; and his business was there-
by imiicded, &e. :--Held, on demurrer, that no
cause of action was shewn, for there was no iieg-
kence shewn between plaintiffs and defendants
Bor any privity on which a duty or contract
I'ht arise; and that the action, if maintainable
all must he for a false representation kiiow-
mlvniade, which had injured the plaintiff' in
is "business, and the declaration in this view
las insufficient. Irrlm- v. Canml'wn Hank of
mmme, 23 0. P. 509.
^Vhere C. shipped flour to the order of a bank
r account of L, and at the same time drew on
, iliscounted the bill at the bank, indorsed and
liivticd to the bank the carrier's receipt, and
mil a memorandum stating that the receipt
. l)een indorsed as collateral security for the
■mentof the draft, the bank to sell the Hour,
ilj-ing the proceeds to pay the draft, and to
ce the property in charge of any respectable
iker or warehouseman, without prejudice to
hank's claim upon any party to the draft : —
il, that the hank, though bound to retain the
ir until the bill was accepted, might then, if
chose, deliver the Hour to L., the fair cini-
ictiim of the agreement being that the retain-
ot possession until payment was optional
the hank. QuaTc, whether if the bank was
iiisihle for the flour under circumstances
ihnrcvented a set-off" at law, that relief could
lail in e(iuity. Clark v. Bank of Montreal,
, 211.
the debts of the bank by three times the paid up
stock and <1eposits, &e. , should o])erate as a for-
feiture of the charter, &c. : — Held, that the to-
tal annihilation of the bank was not contempla-
ted by these provisions, and it tlid not follow
from the loss of the charter that there must be
a diss(dution for all purjtoses : that some formal
process was still necessary Hnally to determine
and i)ut an end to all the functions of the cor-
poration ; that the bank was still a corporate
body, liable to have its property i:.dd or admin-
istered for the satisfaction of debts ; and that A.
must still be looked upon as president ; and an
application to set aside the service upon him was
discharged with costs. liratikc v Jiiink of U.
('., 4 I'. I!. 1()2.('. L. Chand).— A. Wilson.
A bill will lie in e(|uity at the suit of a credi-
tor to enforce the double liability of the share-
holders of an insolvent bank. S. C, IGChy. 249,
But such a bill must be on behalf of all the
creditors. J li.
The trustees of the bank were held necessary
parties to a bill by cre<litors to enforce the double
liability of shareholders. S. C, 17 Chy. 301.
VII. SAVIN(iS 1V\NKS.
Ucfeiidaiits associateil themselves together to
conduct a savings bank, but before they were
organized under 4 & 5 Vict. e. 32, their treasurer
received a deposit from B. of £75, which he
swore was made by B. ivith the express under-
standing that any person producing his pivss-
liook should receive it. B. died, and this sum
was afterwaiils paid to a connection of his,
who presented the pass-book. The payment,
it appeared, was made in pursuance of cer-
tain rules adopted by defendants, but which
were not tiled according to the statute for some
months after : — Held, that tlefendants were liable
to B. 's ailministrator for the money. Hunter v.
Wallare, 14 (I. B. 205.
VI. Failure of.
tcess was served upon A. as president of a
1 he having been elected in June, 18()(), for
Sear. No election of president or directors
taken place since then, and A. in fact never
peil his office. In September, 18t)(), the
suspended specie payments, and before
■(lays thereafter .assigned their property to
«, anil ceased to do business as a bank.
! provided by the charter that a suspension
icib payment for 8ixt\- daye, or au excess of
Vlll. SrEciAr. Chahtkrs.
I. Bank of British Xorlh America.
An action is not maintainable against the
manager of this bank under 7 Will. IV. c. 34, in
his individual character, for a cause of action
accrued against him only as manager. White v.
Jliinler, E. T. 4 Vict.
This bank is entitled to sue in Upper Canada
in its corpiH'ate name. Bank of B. ^. America
v. Browne, t> (>». B. 490.
There is nothing in their charter which prevents
their becoming parties as creditors to an assign-
ment for the benelitof creditors. I'atton v. Foy,
9 C". P. 512.
The local agents of the bank cannot grant
powers of "attorney to third parties to receive
money ordered to be paid to the bank by a
decree of the cimrt. Bank ifB. X. America v.
liattinhurif, 1 Chy. Chamb. 05. — 8pragge.
2. Bank of Upper C'anmla.
The president, not bein^ an ofticer of the
bank, within sec. 16 of (» Viet. e. 27, may vote
by proxy at the annual election of directors.
Beijina v. Bank of U. C, 5 Q. B. 338.
!i;l
m
■■ '\ m
. ': i
fl
■■' ; -11
; V ' 1
■ Hj3;l
;;) \
1
:i5; \
1
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1
■ 1
T
■Hi
'n
H; !.r
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4G3
BANKS.
4(;i
m
II:
I :
I- i: i
The bank under Vict. o. 27, b. I!), I'ouM not
hold vessels for any jmrpose as Hecurity- .'/'■-
Donni'llH (tl. V. Bank of i'. ('., 7 i). H. '■-''•->.
And OB a, conse((Uenee no implied assinuiisit
ean arise against them as sliip owners, nor could
any express promise he liinding. /.i/iiniii v.
Jiaiik of U. C, 8 y. H. XA.
Senible, they niifrlit take niort;,'iges upon real
estate to secure tlehts previously ooutracted.
McDondl V. Hunk of U. V., 7 (l H. 2r.2.
Held, that under (J Viet. e. 27, s. 1!», the
bank may take mortgages upon real estate as
collateral security, for sums advanced boml fide
in the way of their business, and that such debts
need not have been contracted previously, but
the advance and the security may bo contempo-
raneous acts. C'oninii'rcidl Jituik v. Bniik if U.
C, 7 Chy. 250; allirmeil in appeal. //-. 423.
And — Held, that all chartercl banks have
the same power. S.C. llt.Ai'H.
It W(nild be a (juestion of fact for a jury to
determine whether the mortgage was in truth
taken to secure the transaction on the ))ill or
note discounted, or the bill created for the mere
purpose of upholding anil giving colour to tiie
mortgage. / /'.
A mortgage was created' as collateral security
for £2800, debts then past due, to one of the
chartered banks, and also f 1000 then advanced
by the bank to the nu)rtgagor, who afterwards
created a second mortgage to tiie bank for t7r)0,
and interest ; which instrument expressly pro-
vided, that 'it mill inri/t/iiii;/ t/nniii roiiliuniil
should he Kiiliji'rt to tin' /iiu/iiiiiil hi/ tin- iiiortiiiiijor
of the amounts mintiomil in thi'fonmr niorlijitiii' :
— Held, affirming the decree of the court below,
that the first mortgage was void as to the t'lOOO,
but valid to secure the £2800, notwithstanding
that the notes held by the bank at the date of
the mortgage had been retired by the discount
of other paper from time to time ; and also that
the second mortgage was an existing security
as to the ilOOO, though void as to the £750 ad-
vanced at its execution. //;.
One P. havin'' agreed to Ijuild certain cars for
the (xrand Tniiik Railway Co., it was .stipulated
iu the contract that the payments were to be
made to the satisfaction of the Hank of U. (.'.,
who were to act as receivers. On the 24th of
September, ISUO, tlie bank and the railway com-
pany entered into an agreement, reciting the
contract, and that the bank ha(r made large
advances on ficcount of it, and had agreed to
advance the necessary sum to comidete it and
acquire the title to the ears. 'J'lie company
then assigned all their interest in tiie agreement
and cars to the bank, and the bank leased thcni
back to the company for three years at a rent
named, with a proviso that on payment of their
debt to the bank, the cars should revert to
the company. After this P. received nit)neys
from the bank on account of the contracts : —
Held, that the bank were not precluded by their
charter from taking security upon them ; and
that they were entitled therefore as against an
execution creditor of P. Bank of U. V. v. Killnli),
21 Q. B. 9.
Held, that under 19 & 20 Vict. c. 127, s. 21,
the bank had a right to purchase goods at a
sheriff 'a sale other than on an exeeutitjn at their
own suit, if in that way they wished to m-.m^
an outstaiKling claim or charge on tliu iinnlertv
of a debtor of the bank. Kini).iiiiilt v //<,,,)■ V
u. c, i;u'. P. (500. ■ ■
A debtor of the late pretended Rank df f'|),„
Canada at Kingston having called ujmiu the I'anl
commissioners to arbitrate under 10 (ieo. JV
7, an award was made for £900, to In: hnui',. j
notes and otiier securities of the bank :-Hd(|
that the delitor had a right to pay in nntts loj
whicii no certificates had been iss'uud liursuiuit
to tlic act. Daltitn v. McNiilir, 5 ( 'liy. ")0|
K. was trustee for sale of certain lands kW
ing to M. Two parcels were sul)juft to a n\„\.
g.igc to the bank for more tiian the v;diu\ l],
trustee agreed for the sale of these p.iroels \u
purchaser ; the bank, before becoming insulvtnt f
assented to the sale, and received tlie first iii.<u|.
ment of the purchase money. The piinln-tr I
went into possession, but made ilefault ; iliirn,].
ants were his assignees. By the tnint ileeil vWti I
the bank execnted on becoming insolvent (vihjcii I
deed was afterwards confirmed l)y statutei, i|l
was made the duty of the trustees to .icceiit in I
payment of any debt due to the estate tlienot«|
m- bills of the bank. On a bill by the trustm I
for payment, it was held that, as the iiiduev waj I
coming to the bank, the trustees Avcre Wuiltol
accept payment in the notes of the Ijankatpar I
'/'/((' TriLiti'in of the Bank of U. <!. v. 77/((;Uf
iliaii Xnviijatiou Co., Hi Chy. 47!l.
3. I'oi/al Canadian Bunk.
Held, that the plaintifi's, abankingiustitutiful
having stiiiulatetl for and retained, in disuimt7
ing a note, interest at a larger rate tliiiii *vei|
per cent., were not entitled to avail tiiemstlvtj I
of the provisions of their act of ine(iri»irata|
(27 & 2S Vict. e. 85, s. 21), allowing them tof
charge the same rate after maturity that tkeil
had charged on discounting the note, supposinjl
the original charge to have been not more tkl
seven per cent., which was held to he themea-I
ing of the act ; and that, therefore, the ookl
bearing no rate of interest f)ii its face, theytw
not entitled to more than six i)er eent fiiim il
maturity, lioijal Canadian Buiik \,.Sli(w;ii(!l
P. 455.
IX. Ml.SCELLANEOl-.S CasE.S.
A stockholder merely as such has no right Ij
inspect the stock or other books of the Km,*
will the court grant a mandanuis forthatp
pose, although they have the power, unless «
special ground be disclosed sufficient to va
it. In ir Bank of fj. C. v. Bidilinti, l)a£|
The Bubble Acts, (> Geo. I. e. 18, aiiil l-fii
II. are not in force in this province,!
banks chartered by acts of the iiroviiKial f
lianient could not come within them.
U. C. V. Bilhi(n(',4 0.H. l(J5 ; limikofMrn
v. Bethuni', Ih. 193.
A foreign corporation, such as a baiili, ca
sue upon notes received by them in the com'
of banking business in this province, altin
they may sue for money had and rei'eivtJI|
person for wh(mi such notes were disoot
and to whom money wivs advanwl I'n I
Bank of Montreal v. Bethuiia, 4 0. S. M.
465
BARRISTER AT LAW.
46G
lidiil: III' IM'"^^' North America v. Slicrwwul, ti
' u 213 ; lliiii'c Mocliinc Co. v, W'lilb r, 35 Q.
B. 37.
The Bank of HritiHh North America in Knglaiul
eivcd' money there to ho tninsniitted to A.
'n rvpt-T f'auaiha, and sent a hjtter of credit hy
iKi9t to A. to receive the money at a branch of
thilianii in Toronto. The letter was taken out
lithe post office in Canada (A. having in the
meantime died), and A. 'a name forged on tlie
letter of credit, and the money received by some
unknown :^Hehl, that A.'s executrix
^ I to recover the money from the
bniucirat Toronto as money had and received to
A'suse. (''(•^■<''".7 ^'- l/o/'pfr, (J O. S. 505.
A forged paper purporting to be a bank note is
. mite ami cdually so if tliere is no such bank as
atnamed. /^.'j/i««v. MvDonald, 12 Q. B. 543.
I person
^M entitkM
I that 11
(toe S. was treasurer of the county of Middle-
liex and agent of the Gore bank, having his ofiice
[for iKith purposes in the same building. The
|«cuncil liatl no account with the bank, and did
Bt direct S. where to kee][) his funds as treasurer,
,1 lie had always received enough to meet all
ymrsemeiits for the county. Hedid, however,
pen an account with the bank, without the
Buwledge of the council, and having misapplied
tc moneys of the council, overdrew that ac-
diit, without the knowledge or authority of the
ok, nearly t'8,(X)0, to pay debts due by the
miitv for interest on debentures and other
lims, which he ought to have paid out of the
loiiev's received by him as treasurer. The cou-
.s on some of these debentures were stamped
S. as paid by the Gore bank. S. having
Konded, the bank sued the council for the
lomit thus overdrawn, as money paid to their
I :-Held, that no portion of it could be re-
»ered. The Gore Hank v. Municipal VoitHci/
l/i-W/f«, 1() Q. B. 595.
i treasurer of a municipality should not be
aiittcd to act also as agent of a bank. Cor-
vt'm iif Inijermll v. Chmlwick, 19 Q. B. 278.
iThe iilaintitfa drew upon J. a bill for £200,
iWc to their order, which he endorsed to
(lore baiik, by whom it was sent to the
ttiit defendants, the Bank of U. C, for col-
ton. When it fell due, J., with the agent's
leut, drew upon the plaintiffs to meet it, but
ippiceeds of this draft, contrary to J.'s direc-
B, were placed to his credit with defendants
pst other acceptances of his, and the plain-
UpaiJlwth drafts : -Held, that they might re-
t theproceeds of the seconil bill from defen-
! as money had and received. — Per Burns,
[Tliey might also recover aa for money paid.
Robinson, C. J., not. Ridddl vt al. v.
\»1 1'. C, 18 Q. B. 139.
at Western Railway Co. — Loan to Detroit
llilwaukee Railway Co. — Money advanced
linkers for purposes beyond defendants'
W-Rightto recover for overdrawn account
idence— Res gestw — Conimcrcinl Bank of
U(iv. (.ImU Weiteni Railway Co., 22 Q. B.
12 E. & A, 285 ; affirmed on appeal to the
I Council, 3 Moo. P. C. N. S. 295.
aker is a trader within the Insolvent Acts.
k«v, Hamilhm, 10 L. J. 305.— C. C —
f ; Smart v, Duncan, ante p. 410.
Keinarks as to the practice in this country of
taking notes for discount, not from the last en-
dorser, but from the maker, who brings them
endorsed — thus suggesting not a Imsiness trans-
action, but accommodation endorsements. Hunk
<iJ\]fonfreal v. Jiei/noldx et al., 25 Q. H. 352.
Where a trustee had retained moneys of the
estate in his hands instead of paying oil' debts of
the estate, and had improperly mixed these
moneys with his own at his bank, the court
without saying wiuit in future, according to the
value of money or the ainnnnt of interest pay-
able on investments, might be a fair rate to
charge on moneys improperly withhehl or used
by a trustee, charged the trustee with interest
at eight per cent, on all balances in his hands.
Mlijlifwan v. llelliireU, 13 Chy. .330.
A bank agent being about to make advances
on the security of certain stock of another bank,
applied to the bank officers to ascertain what
claims the bank held against such stock, when
he was informed that there was overdue paper to
the amount of §.")00 : but before completing the
transfer of the stock, another claim, which was
then current in one <if the agencies of the bank,
was returned unpaid : — Held, that the bank had
a right to retain its lien on the stock for the
additional sum before allowing the transfer of
the stock to be carried (mt in their books. Cook
V. Itoijul Canadian Bank. 20 Chy. 1.
The owner of bank stock being alM)ut to
assign the same, procured from one of the
agents of the bank a memorandum on the back
of a power of attorney for the transfer of
the stock in the words: "No liability at Gait
oflice :" — Held, that this was not such a rejtre-
sentation, nia<le to the intending transieree, as
bounil the bank ; and that the bank were enti-
tled to hold the stock for a draft of $500, which
had been discounted at the Gait office, and then
in the liaiids of an agency in Montreal, lli.
BARGAIN AND SALE.
Sec Deed.
BAKRISTER AT LAW.
1. Queen's Counsel, 4()7.
II. Pkivileoes anu Liability, 467.
III. Conduct of Causes, 4()8.
1. New Trial for Mii^lakcs of or Impro-
perhj conductimj causv. — Sei; New
Trial.
2. Jiif/lif to Beijiii and Riijlit to lividi/.—See
Tkial.
IV. Counsel Fees.
1. JiiijIU to liecover, 409.
2. Taxation of— See Costs.
V. Miscellaneous Cases, 470.
VI. Otiiek Matters.
1. Attornet/n. — See ArroKNEY and Soli-
citor.
'^ii
ti
.di
ill
ii|.:.>
m
■if.
! ; i;
Mm
467
BARRISTER AT LAW.
<«
[ ' i,
'It :
N.
'2. A lUiriifji II ml Solidlor (hwral- -Sn- At-
torney AND HoLUrrOK (iKNERAI,.
Count!/ Atluniii/.-
xi;v.
-.SVc Cot'NTY ArroK-
1. (^UKKn's (.'orNMKI-.
A patent from the crown appointiiiL' ii barris"
tor a Queen's connHel, direuted that lie should
take preeedenuu after another Queen's counsel,
who was Hul)»e(iUL'ntly niijiointed attorney yen-
oral : — Heltl, that sueli patent did not tlien
entitle him to precedence before the solicitor
general. Jii ri' Jioiiltoii, 1 Q. \i. 317.
Where, in an action on tlie case for a malicious
prosecution, it was alleged in the declaration
that the trial of tlie inilictnient took place l)cfore
a court of Oyer and Terminer, and the indict-
ment was atOeneral (iaol Delivery : Held, that
the variance was amendable, and that the trial
of the indictment being tlirough a (Jueen's coun-
sel did not deprive the plaintiff of the right of
action against the real prosecutor. Ciirr v.
Proiiil/oot, E. T. 3 Vict.
II. PhIVILEOKS and l.rABILlTY.
A barrister cannot be arrested on mesne pro.
cess. Afldiimy. Arkhiuit, 7 Q. B. lill.
A barrister cannot insist upon being present
at a coroner's imjucst, and upon examinnig and
cross-examining the witnesses, &c., and can
maintain no action against the coroner for ex-
cluding him from the rcunn. Ai/iitw v. Slifii'iirt.
21 Q. B. 3!)().
The jjlaintiff declared in contract against an
attorney, for negligence in conducting a suit for
him against one 1'., alleging the breaclies of
promise to be, tliat although P. pleaded a set-off
on a promissory note, yet defendant imjjroperly
denied the making of such note, whereas the
plaintiff had paid it ; and also, that although
defendant had notice of this a reasonable time
before tlie trial, and that the payment could be
proved by two witnesses named, yet he neglec-
ted to suupa'na them, and took the case to trial
without instructions ; and also, that defendant
did not instruct counsel to act for the plaintiff at
the trial, and inform him of the facts above
mentioned, but acted its counsel himself, and
neither applied for an amendment of the replica-
tion, nor suggested to the court that he could
prove payment of the note, Avhich he could have
done, as the said witnesses were then there at-
tending to other duties — wherefore the set-off'
was allowed. Defendant pleaded, as to so much
of the declaration as alleged that he did not
instruct counsel, but acted as such himself, that
he was a barrister in Upper Canada, and that
the plaintiff' never objected to his so acting ; and
he demurred to so much as alleged that he did
not while so acting apply to amend, or off'er to
l)rove payment, on the ground that for his con-
duct as counsel no action would lie. Plaintiff
demurred to the plea as no answer :— Held,
(atiirming the judgment of the County Court,)
that the plaintiff was entitled to judgment, for
the defendant by acting its counsel himself could
not escape liability for neglecting aa an attorney
to give proper instructions. Le<<lie v. Ball, 22
Q. B. 512.
Qun-re, per Adam Wilson, J., whitlier, i,» i
sidering the union of the jirofessions in tliisi.ft
viuce, and the right of connstd in smiii' cue, J
recover fees, the same exemotion fnun liiiliilml
can be claimed here as in Kngland, cvfii wlimtiil
same person does not act in both eapiicitits, /J
Kights of counsel to be heard befdre ('mini
of lievision and all other conrts. /« ^A/ /;,,]
DifUiiiii Court in tin- Count i/ of Klifin, i; |, j ^f
S. '."J.^.-C. (!.— Hughes. ' "'
No person except a barrister or iittnna'Viliil.1
(pialihcd, is entitled to prosecute or diftuil smhl
in the Division (!ourts. In I'l' tin Jmlii, „) ,Jl
iJounti/ of York, :il(.i. B. 207. Sco .'(.l' Vi' ^ J
8, (>., since passed.
III. C0Nl)i;iT OK (.'.M'SIN,
A., a counsel at Nisi Priua, repicsfiittiltoul
ai' Micr counsel, that a cause w.i.s iiinlcfiii.le,!
B. (iicreuptm took a brief from the ]iliiiiitilf,
A. afterwards appeared for the (Itfeiict
obtained a verdict. The court set asiije tliovii
diet for the want of goftd faith in ilufemlaDi:
counsel, and made Inm pay tlic msts <i t|
application and trial. IIiiw'illuu v. S'lium Tl
T. 3 & 4 Vict.
Where a verdict was taken suhject to
o])inion of the court upon certain jMiints ud
whether the plaintilC was entitled td rwirl
substantial or merely noniinid (l:iiiiiii;es,
there was a misunderstauilin;,' l)et\vtni t||
counsel of the respective parties as t(] tlit tn
upon which the verdict was tiiken, :uit\rti
was granted without costs. J/c /,,,/,/ v. /iVi/ij
2 Q. B. 44.
Where in ejectment the plaiiitifl's m\m\\
opening his ease stated it as a (luestiiiiuifli,
macy, and that defendant claimed under a i
and the defence was conducted witiiniit tliti
duction of the will, as if the statement oi ll
counsel had rendered that unnecessary i-Ha
that it ought 1 1 have been pi'ddiicud. ft»l
Hrcah'ii v. Bveabij, 2 Q. B. 34!i.
A plaintiff is not bound by the iimdvtil
statement or admissicm of his conusel in oin
his case, when promptly retraeteil. ■Jiimi>«ii
Gri'itt Wi:tt,'m N. W. Co., 4C. P. 488.
An attorney cannot act at the trial of tteo
both as an advocate and a witness. Brmlii
Buultou, 4 Q. B. y(!.
AVhere a counsel, upon stating ti) a jnirl
facts he himself coidd prove, w as reniiiiiliJl
the judge that he could not act iKithasail
cate and a witness, and then iiniueiliat«li|
down, ceased to act as counsel, ami gave eiii
in the cause, the court refused to set ,isiili|
verdict. Cameron v. Forxijth, 4 Q. 1!. ISj
Messrs. W. P. & P. acted in tiiisc
agents for the defendant's attorney, ill I
papers in the suit being served iiimn tknj
\V., cme of the meml>er8 of thesaiilnml
counsel for defendants in the cimse, Imthill
Prius and before the arbitrator. Itwasj
that on an undertaking of W., as com
defendants, not to raise any (luestiimiit'l*^
terms of the reference were altered l).vf
of W., and of counsel for the pli
motion to set aside the award and Ml
409
iiicnt;-Hfl(I, timt VV, had power oitlirro^
«.l or ,« agent f..r dofci.dm.ts' ut^Jtv '"""■
iliscretKili iii tlio iimtters of thin Niiit to 1
BASTARD.
470
'ftSUOUIl- I NJoilH of til 4.
jsK-s^r.^ ;;j,r 111- - "-a
Olio of the iirisrmor'M (•oiinaul ii*- fl,., * • i '^""•''"•V.s siiiiiL' in ,>>
whiW lie wan ,ul.l.-eHsi„g the jury a \h ' loa ""f ' r^""' '"'^ ''•"• "'" «' "o s^^v'ic.r """"■^"' '" "'-
thiMase, Ha« HU.Muiily «ei/,..l with ii (it „, T- I '','*'-' ''"■•"''« "> Hnulai 1 .ff " "' '"'^' "Uowo.l in
Lljoummentwasa,.i,li,.lfo.?|,,t^thootht; «^' '*''" ^■'"-■" '"' -^n'. i , '""""T' '«' to hi,„"
ynry on the |,n.so„er'.s hchalf without ruiSf,, ' "^^ "• -••''^- ' " ''■ '•''"/""«.
&,je.ti.m til .t ho was placoj ^" jS t!;'"^
not api-oar that the priaoner ha.l l.'een re
ihcc. hv the ahseuce of the counaol all,, i*
.:-He],l, nogroni,,! for a new trial U !"'
hi ail action for false iun.rison.nent : --Hehl
lat tlie cmiiwfl for the plainiiff l,a,l tl,. ..,• W}'
«<! at the trial froni tf.e onV , ;,, "'^''^ *"
cvurt,given,,n,lischargi3 e' ,Cfe"' '-f
.ra.t a„,l setting ,«i,Ic^ tL ea.' a .fJl?""
i'niumls .11,01, wliieh the iu,lLrn,',.,.f "^
''"^i'^-n'^e^;— tri^^^^
ft'e in hi
., ' l"-^ "wii case, a,; ,;;'"" ""'.'* «""nBe]
«l<.es not exten.l to , ar „.-.! '^r'^^ party.
i''(ifii'ji \
•"■iirrt-inri/.
Da
I'll, 2 (!l,v r-i 1 . '"'•JirK/,'^^
' "^- """"l^- i53- Taylor,
[Oil the hiril trial of a case in which tl„. v
fc had to. twice set asi.le as a, », 1^ "i'''
^ight nt evidence, the jnry were *',,'. ,''"
«i..-I to take the same\.,n„-sT tl. f '' ''^
•-''!-. -Id in effect t'dSr:;,^^^^^^^
V. MlSCKLLANKOtrs Case.S.
«''"nscl of 'one of the Ht ' i''"'""' '"^"' the
'••'J-tingtohiHtak it Icref ,'' '"^''""'''- !«%
contrary, the niaste^certi. e,??'?',''"''' "" «'"
tlio^rclerence at the ,r'«j .' ■"'} '"-' «'-'tc<l m
^^^i
i 1
'I .■ !,
|Q,B.47«, ' """""■• '""■'" ^- /^'"'"vv,
iisiio-Touiid for setting asi.le a verdict tl..f
Icoiiiisel merely referre,? to the ver.lW ''''*
ler trial, expressing a ho,,o tlif f •'""
p(lgivethesLnever,lict as had 1 "^ ^'""^
K^ hut desisting when thp nil ■"'''' «''''^"
^.u.;essth^:;^u;:rtSKrt
ialthat the matter was „..fn,vi '^
Ma view of exerei^i'g ^"ZrUT"^'
'-I'f of the^pS ffhi„.tK r"1' '^"'l l>"th o',
«11 tin other i,erso.,M V.f . 'V"^ "" '^"Juilf of
A. set. lenient not h- u- 'T*"' "'"'''''' ^'"^ wi
«|nt vas instituted ;. "frti'tion '"'''V'"' "*- "'^
tl>'' oonstniction of tl c wdl . ' 5"" "' *'"= «"it
c^,n| which constrnSh,,^iirr,:,''!f '---l 'f the
tlio defendant J. R tha T«t !"•'""'■'''''« *»
W.18 thereupon made l.v .r i r"";''- ^ "'otion
^'■I'ln-.Advi, 22 a p. u;4. '^"*''"'
124. -Chy.
'V- Cot!.v,sEL Pees.
1- ^i'Jif to Rcronr.
I.
II.
III.
IV.
V
BASTARD.
Evidence or ULmmuAvy, 471
Custody of, 471.
Maintenance of, 472
Ac.nox,sFOK,SHz.;Txo;-,,..SKnccTro.
MAEHuoE-^Ve Dower h„
Wife. "''^^*=«-Hu.sband and
-t/f
I f .
^""W
flff
471
BAWDY HOUSE.
41.'
I
I, KvtnKNCK i)V li.i.KmriMAcv.
WhonvviT it ia Honght to linHttnliiio a uliiM, if
it only iiii|ii'iu' that the cliilcl may lii^ tUv ot!'M|iriii^
of tlio iiintlicr'H liiisliaoil, or of anotlitT iiiaii, t\w
law prcHUiiit'M ill favour of li'^itiiiiacy, ami ilocit
not miiK'tioii a (liMcriiiiiiiatiiiK •'■••iniry upon tliu
Hiilijoot. Tlio |iri'.sunnitioii in tliiN >'a.4<! waH
Houniit to 1)0 iif;{ativ('il liy piiMif of non-aw'uMH.
'riif fai'tM aildiiccil In I'viili'iico arc fully >,'ivi;n in
till! re)iort ; anil lli'lil, tliat c'viili'iu'i' oll'i^ruil nf
general reputation of intoroourxe witli Home
iiernon otiier t' an tlie iiusliand tlin'o months
lieforo niairiagc, wan properly lejecteil. Tliu
huHlianil coinniitteil Huieiile live nioiitlis after l.liu
marriage ; Helil, that proof nf the report in Jie
neighhourhooil hm to itti eaiiHe was also properly
rojeeteil ; - Mehl, also, that it was in the iliscre-
tiou of the jnilgi! to refrain from ninimitting the
allegeil father, who wiis examineil as a witness,
for contempt in not answering, lieeause it was
Bought liy i|uestionH put to him toelieitan ailmis-
sion of facts ini[iortiiig a seandal upon hiiuself.
Besides, the judge tliouglit him intoxieateil, and
unlit to give evidence at all. Kvideiice of the
rcHemblance of tiie child to the alleged father,
if relevant to the issue, is adniissihje, Imt can
only become relevant after a sntlicient foundation
has been laid to raise siispicioii ; and Held, that
such fonndation appeared to have been laid, and
the eviilcncu was therefore admissible. Dor il.
Miirr\. Ahirr, .1 ('. P. :i(i.
In an action for the seduction of the plaintiff's
(laughter it appeareil by the evidence that de-
fenilant had had intercourse with her in tiannary
and lip to .June, i8(!(), but that she married one
C. in October, IHliO, ami that the child was born
on the 11th Kebriiary, IStil. 'I'lie plaintitl' hav-
ing obtained a venlict ; Held, tiiat the child
having been born in lawful wedlock tiie mother's
cwdence was inadmissible to prove it illegitimate,
and a new trial was granted. /{yini it ii.r v.
Jfilln-, '21 Q. B. 202.
At a second trial the fact that defendant was
father of the child was attempted to be proved
iiy his admissions, and the jury again found for
the plaintitl': — Held, that the verdict was not
supported by the admissions stated in the case,
and — Semble, no evidence couhl be received to
rebut the presumption of legitimacy, the evidence
being consistent with the fact of access by the
husband before marriage. <V. V. 22 i),. B. 87.
II. Custody of.
On a writ of habeas corpus to bring up an
illegitimate child, issued for the mother against
the putative father, a judge will not interfere,
where it is shewn that the father obtained the
child by agreement with and by the assent of the
mother, and not by force or fraud. //( re Jinjiiia
V. Armxlrumj, 1 P. 11. (J. —P. C— McLean.
Held, that the mother of an illegitimate child
is not entitled to all the rights of guardian for
nurture : that the mother differs only from a
stranger in this, that iluring the period of nur-
ture (under seven) the child may not be separa-
ted from the mother by force or fraud. But
when she has abandoned the child, and others
have adopted it, or if she has placed it under the
protection of others, and afterwards claims it as
jts mother or guardian for nurture, the court
will not rocogni/t) such claim an a Ic^hI ri;i||i
but will refuse to interfere if the intrnsfN ,,( (j,
infant will thereby be best protcctid /,
lluhnhnl, .'-. I'. II. 2M. -V. h. tihanib. ('hj,,,,,;,'
III. MAINrKNAMK OK.
Attempting to bargain with or priKiui;, ,,,,
man falsely to make the atlidavit jihivii|.,| t,,r
by (', S. l^. <', c. 77, s. (i, thiit A. IS the i,it||„r
of her illegitiniati! child, is an inili('tal>it'ii||(.|,,,.
The attempt provetl consisted of a littiiwrjtt,,
by ilcfeiidant, dated at Bradford, in tlic c,,,,,,,,
of Simcoe, piir|iorting but not pldvcd tn I, ,r
the Bradford post mark, and addriHscI tn th^.
woman at Toronto, where she ncciviil it.
Held, that the case could be triiil in \,,^\^
Seiiiblc, per Hraiier, ('. .(., if thi^ post iii.iik hail
been proved, ami the letter thus sIichu tn hn,
passed ouL of defendant's hands in Sininn. n,.
tended for the woman, the (itrencc Wdiilil Imv,.
been complete in that county, anil the iiiiliLtnitnt I
only triable there. Per Hagarty, .),, tin: iliffn.
dant in that case would still liavc ciiiised tlir
letter to be received in York, and iiiiKlit ln,trii,|
there, (^iiiere, whether, if the W(iiiiiiiiliuil,„„,.
niitted the offence, it should have lifcn ihaMil
as a misdemeanour only, or as the Htatiitnry nf.
fence of perjury, /{njina v. Clemiiif, 20 i). B. 2!i;.
In an action for the maintenance of an illiuitj.
mate child, iimler ('. .S. I'. ('. c. 77, s, i, ]U\\,.
peared that the plaintiff was a iiiai riid «(iiu;ui,
and that the athdavit tiled by the iiintiiir st;ittii
that tlie defendant was the father of siicli i|,il|
not "really the father," as reijuireil by tlii' Ait:
Held, 1. That tile plaintiff could nut sm, fur it
must be presumed that the necessarii's furiii>lR.l
were her husband's ; and that slic must fail i.u
never indebted, no plea in abatement luiip^ re-
(jnisite. 2. That the omission in t]iuiiltiiluvit''w;u
fatal. A nonsuit was therefore iiidtTnl. Tlit
athdavit was produced from the oIlii'Luf thetitv
clerk, and purported to be .sworn liffnru tlit
police magistrate of Toronto, wlieic siii' ri'siiic4 :
-Held, sufticient evidence to go the jury that it
was deiKisitcil bv her in the pmpcr nllia. It
ajipeared probable from the stateiia'iit (if tlie
mother that she was liable to the plaintirt' fur the
demand sued for : —Held, that the jiiiy sluiili
have been told that if she was so lialilc, lariiii'
supported testimoiiy would not sustain tk
action. Juckson v. KkshvI, 2(5 (»>. B. ;i4l.
BATTEHY.
Sci' A.ssAt'i.'i'.
BAWDY HOUSK.
A conviction, under C. !S. C. c. 1( •>
ing a house of ill-fame, or being an iiun..
a nouse, adjudicating that tln- airuanl m
pay a tine of iS.W forthwith, and be imiiris'Wi
lor three months unless the tine he smmir pi,
is not warranted by sec. Iti. /« /> .S'Ai/o' f/ a'.,
S) L. J. 21.— C. L. Chamb. -Hagarty.
The prisoner was convicted by tlie i»fe
magistrate for the city of Toronto, for that ibi
' ' did on, " &c. , " at the said city of Toronto, keep
4(3
BILLIARD TABLES.
474
V •!
„ iiininii'ii iliHordurly liiiwily Iioiihc mi (^lun'ii
,(f(.i.t, ill tilt) Hiki<l city," mill cmiiiiiittt'il to ^'itol
ithitnl iiiliDiir for nix niniitliH. A lialicuN i'iir|iiiM
■inil icrtiiinui InhuoiI ; in ivtiini to uliiili tlii'
,iin[iiiitni*'i't> I'liiivictioii, infiiniiiitinii, uml iIi'|mi-
:.itii>ni* wort' lii'iiiiulit ii[i. On aiiiilii'iitinii for lii-r
limluir);!' : llfliT, no olijuution tliat tlii^ (Miiniiiit-
mt'iit iliai'gcil tliiit tliu lU'iMoiuM' "whh tlic ki'i'|n!r
,il ' kc, itnil tiiu convii'tion " tliat hIk^ iliil
|(ti.ii, " l«)tli (liU'erilig from this Htiituto, wliiili
,lt«igiiatfit till! offtJiico iiH " ku»'|)ing iiny iUh-
iirikriy Iidiihc," Ac, ; for nil tlii'Mo cxiiroHMions
iiiiivi'V tlie siiiiio ideii. Nor tliiit tlic convii'tion
KM lint aiintiiilied liy tlio iiiforiiuitioii, tlin
l.ittir lii'ii'K tl""t ili'tV'iiiliint WHH tin; koi'pcr of t\
ilisiiriU'rly Ihhihi', anil tlio fornu'r for kt'cping iv
iiiiiiiiiim ili^onlurly liawily lioiine ; for tlu' coin-
luitmt'iit wiiiilil not lie void liecaiim' of a variaiico
l«tweuii tiiu original inforiiiatinn and tliu i:oii-
vietiiin miiilu after hearing evidence. Nor that
tilt nH'eiice of keeping a eoinnion diHorderly
liawily hiitwe was not Hiidieiently certain, for
till' legftl meaning of the last two word« \h
ili'nr, 1111(1 if keeping a dimirderly house he no
(idi'iice, the addition of that would Ihj only nnr-
plusage. Ill 'ji I'd V. Mitiiro, '24 ii. H. 44.
BKLLKiKUKNTS.
.Vw (Jriminai, \j.\\\.
Lawful nets of war agniimt a belligerent, can-
not Iw cither connneneed or concluded in neutral
ttrritiiry. hi rr liiirli'i/, I L. J. N. S. 34 U. I..
rChanih.— Draper, Richards, Hagarty, J. Wilson.
BEN(^H WAIIRANT.
A bench warrant issued at the Quarter Ses-
[ lions, tested in open sessions, and signed by the
[ clirk of the peace ; — Held, not invalid for want
[ of ,1 seal Fniiir V. D'h'^miii, 5 Q. IV '231.
BEQUJ'^ST.
See. Leo AC V — Will.
BETTING.
See Gaming.
BIGAMY.
■S'ef Criminal Law.
BILL.
I. Attornfas' Bill — See Attorney and
SoLU'ITOK.
11. (tf Co.sTs— <S'<. Costs.
III. Of Exchanue— .SVp 1 ,,.ls ok Exchan' ti
and Promissory Notes.
IV. Of Ladinii— .SVc Bills of I..adino and
ii Warehouse Receipts — Railways
and Railway Companies — Suip.
y. Or Sale -.sVc HilIhSok Sale and (/'lurrKL
MoitniAiiEM.
VI. (»K iMUiTMENT .SV( (CRIMINAL I-AW.
\'ll. In rilANl EUY.
I. t/iiU'rillli/Sir I'r.KADINll IN KgiTITV
I'uvcrn K IN Egi'iTV.
'J. AiiKiiiliiiiiii iif Sii- Amendment in
Ki^iirv.
3. /''iir I'lirn'liiniirr .S'cc MoitriiAdE.
4. For Sail' — .SVc Moki'iiaiie.
X To l{nliim--Sii MoRTOAdE.
(I. Fur Arriiiliit Sir AccorNT Hll.L OK
Aciol'NT.
7. /'('*• DUrarirji -See Discovery.
8. Of /iifirjt/iiulir—See Interpleader.
!». Fur I'lirliliim-Sie Partition.
10. Siljiiili liiililill Sri' Pl.KAIIINII IN
El/IITY.
11. /Hfiiiixiiiliif Sir I'ractice IN Eyi;iTY.
BILL FOR ACCOUNT.
See Account.
A testator directed his son to work his farm
of 100 acres, worth £50 or €100 a year, and pay
oiic-thiril of the produce to the widow. The
widow and son and an intirin daughter lived
together on the place until the death of the son,
allreceiving their support from the farm, tho
widow for jiart of the time doing work equiva-
lent to the support she received, but making no
demand for her one-third of the produce, and
there being no agreement between tliciii on the
subject. A bill by the widow against her son's
representative for an account of her sh.Tc of tho
produce was dismissed with costs. Uilmure v.
(I'Uiiinrr, 14 Chy. 57.
BILLIARD TABLES.
Semble, that the corporation of the city of
Toronto has a right to suppress all billiard tables
within its jurisdiction. Rex v. liiKiwctor <if
Lirrn-irif of the Home Dislrtrl, 4 O. S. 9.
Held, that a by-law of the cori)oration of
London, passed under the 10 & 11 Vict. c. 48,
.ind providing that the owner of a billiard table
shall pay € 10 per annum for a license to keep
the same, had not tho effect of abrogating the
duty imposed on billiard tables by the provin-
cial act .'50 (ico. III. c. (j, but must lie con-
sidered as a regulation super-added for the
puriiosos of the town of Loniion. Church q. t.
V. mihardx, () Q. B. 502.
Held, that an action of debt would lie for the
penalty, under .TO Geo. III. c. (5., for keeping a
table without license, and that after verdict it
need not be averred that the defendant had not
paid the penalty. Ih.
A\iulicatioii of 3 Vict. c. 9, s. 9, and 3 Vict. c.
20, 8. 10. Ih.
u
i 11
|l!
ih
475
BILLS OF EXCHANGE AND PROMISSORY NOTES.
m
'( '
i'
BILLS OF EXCHANGE AND PROMISSORY
NOTES.
I. Parties.
1. Corporation' 477.
2. A(jenU, 479. .
3. Kirriilorx, 470.
4. Partufrn—Si'i' I'ARTNKRsiiir.
II. FoK.M AND Operation.
1. Parfiex to whom Paijahle, 470.
2. Amount or Time of Pai/mrnl I'nfcr-
tain, 480.
3. Not Pannhk in Moncij, 481.
4. Enilornfmrntu or Qunlifjiimj Stipula-
tions 482.
5. Otiwr Poinfx of For it, 483.
III. Stamps.
1. Pkadinr/nntl Erhlenrr, 48r).
2. Otlwr Cases 487.
IV. Alteration and Cancellation, 488.
V. Transfer.
1. After Maturitji, 480.
2. Other Cases, 490.
VI. Presentment for Payment.
1. To igliinii, whin, ami inhrrr, 492.
2. Allegation and Proof, 493.
3. Other Cases, 49.5.
4. Chei/itesSee Banks.
VII. Protest, 495.
L Notarji Public— See Notary Public.
VIII. Notice of Dishonour.
1. KeCessi/i/ for, 496.
2. Form and Snffiriennj of, 49().
3. Time and Manner of (lirinij, 408.
4. Wronii or Jnsiijfirient Address, 490.
5. Proof of, 500.
6. Waiver of, or Excuse for, 500.
7. Instruments Drawn or Payable in Lower
Canada, .Wi.
IX. Acceptor and Maker, 50.S.
X. Drawer and J^xdorser.
1. Note Pai/ahle (o Reanr, or not Neijo-
tiahle, 503.
2. Discharije of, ."KW.
3. Other Cases, 505.
XI. Actions on.
1. At what Time, 50fi.
2. Joinder of Parties, .W.
3. Form and Requisites of Declaration.
(a) Names and Description of Parties,
507.
(b) A renncnt of lAability and Promise,
508.
(c) Other Cagea, 508.
4 Pleas and Replications, 509.
(a) Amendment of Pleatlin<j» — See
Amendment at Law.
5. Eindenc.e.
(a) Production of Instrument, 511.
(b) Proof of Consideration, 'ill.
(c) Proof of Pai/menl, am.
(d) Parties to as Witnesses, ^lU,
(e) Other Cases, 515.
6. Amount Recoveratde.
(a) Interest, 51(5.
(b) Damai/es and Exchan'/e <m Fonhm
Bill.^ 517. ' '
(o) Foreii/n Currency, 518.
7. Costs.
(a) Under C. S. U. C. c. 4,',,. ,y_,,
seq. (fonnerbjo Will. IV.r i .
519.
(b) Application for full Casts vim
Parties are in DiJ'ernil Lmili.
ties — See Costs.
8. Other Cases, 520.
XII. Defences to Actions.
1. Plaintiff not the Holder, 521.
2. Reendorsement— Plaintiff liulil, nrn
523,
■3. Denial of Makimj or Endoisimj, 52"!.
4. Consiile ration as a Ground of Defmn.
(a) What is a Considenilinii, 7rl'].
(b) Accommodation or iraiit nf Cuml,-
ration, 528.
(c) Partial Failure of Cwisiihmliwi,
531.
(d) Fraud and Ilkijal Comidnatm
533.
(e) UsurloHsTransactioHS—Ste UsiRv.
5. Contemporaneous or other AijrHimi
(a) Aureements to Renew, 5.37.
(b) To Postpone Paiimint, .5,1".
(c) That Defendant should nut In Li-
able, .538.
(d) Other Cases, 540.
(J. Payment, Release, Satisf'aclioti, mvlD'u-
charge.
(a) Payment and Satisfacliim, 541
(b) By Merger, rm.
(e) By Premous Action nr Rwiftrj,
549.
(d) Set-off, 550.
(e) Time ijiren for PiiiiimnI, 552.
(f) Statute of Limitations, ^loi.
(g) Other Ca^es, 557.
(h) Accord or Satisfm-fion AyMnirl
N^otes—See Aivokh .\M) Sm |
FACTION.
(i) By Assignment or Biwb-ui)t(ii-S»l
Bankruitcy .\nd Lvsouxva '
7. Other Defences, 5(W.
XIII. Frivolous Demurrers, .Wl.
XIV. Indemnity or Contkibl'tiox BEmn|
Partie-s, 561.
XV. Loss of Note, 564.
XVI. Miscellaneous Cases, 564.
XVII
DUTIF
— .V
.win.
Akfid
Ari
KIX.
FoK(iE
XX.
I're.mii
XXI
Effect
Com
X.XII.
Effe(,'t
Bills
il'flj/B
477
; USCKV.
[ijntmiil.
't.
lilt h U-
54.
hijMi<f\
ksoLVEsa
BILLS OP EXCHANGE AND PKOMISSORY NOTES.
478
\VII. DuTiKS OF Banks in Connection with
— .SVc Banks.
Will. Affidavit to hoi.u to Bail on — Sec
Arke.'<t.
XIX. FoKiiERV of — »SV' C'himinal Law.
XX. Phf-mium Notf..s — Stf Inhuranie.
\XI. Kffe<t of as Evidence under the
Common Counts-.SVp Money Counts.
X.KII. Effect on Vendor's Lien of Takinij
BiLUsoK NoTE.s-.Vw SaleofLand.
BET«EI5 1
L Parties.
1.
VoritonitloiiK.
Uiuler 1 Vict. o. 30, aiul 7 Vict. u. \{\, the
Kingston Murine Railway Co. may give ami re-
ceive notes in transacting tlieir legitimate busi-
ness. Till' Kiiiijxtoii Marine /{. W. do. v. (Iiiiiii,
Sg.B. 3(i8.
L>m a bill ilrawn "P. C. DeLatre, Esq.,
I'resiilent Niagara Dock and Harbor Company,
Niagara, C. W.," and accepted thus, --"Accep-
ted, payable at thO ottice of the Bank of Ui)per
C'aiiaila, Niagara. -Signed. P. C. Latre, Pres't
.N. H. & D. Co." : — Held, in an action by the
iflveea, tliat the aecejitor was personally liable.
HmkvjMoiitiriilv. DeLatre, 5 Q. B. 'MM.
Qiuvre -Sup})()sing the drawer had l)een suing,
would that have inatle a difference. ///.
Where a bill is drawn by a person signing as
igeiit of a company, the acceptance atlmits the
; sigiuitmc and authority of tiie agent, and pre-
cludes any technical objections as to the coni-
■f KUiy, or their ability to draw the bill. //*.
The Buffalo, Brantford, and (loderich Itailway
[Co., have no power under their charter or under
the tieiieral Railway Act, to make notes. Top-
\fm)\\ BiijI'itlii, B. .0(7. HaUu-dij, Co., (! C. P. 141.
Itifendant accepted a bill drawn upon him as
treasurer of the Wolf Island Railway and Canal
ll", thus-" Accepted, W. A. Cetldes, Treas.
hv, I. 1!. W. k V. Co.," a(bling the company's
kill: Held, tliat he Wiis personally liable.
\i...Ufs:i;,,l,les, 14 Q. B. •239.
»iu a note signed "(ieo. H. Cheney, Pres't
|(ir. Trunk Telegraph Co. F. C. A. Whitney,
|8etri.tiiry(.'. (Jrand Trunk Telegraph Co.," with
IthoHMlof the C(mipany attixed • -Hehl, that the
Itiaktrs were not personally liable, (^uiere,
jthetber the company were liable. Vitii Bank v.
|Cli'w;/i((i/., 15 Q. U. 400.
Till- charter of the company enacts that all
N'iiUuces (if clcht issued by them, shall be issued
si^nied by the president and treasurer.
Nile, jier Robinson, C. J. , that this is direc-
^ry merely. Per Burns, .!., that the seal dis-
icd » ith the signatures. / 1>.
|f;., lieing the secretary of an insurance coni-
JiJ.gave this note for a loss : ".€1000 cur-
Bey.-Sixty days after date I promise to pay
hiie order of W. tlOOO, value received by the
ftario Marino and Fire Insurance Comitany,
yaUeat the IJore Bank in Hamilton. " Signed
. Horatio (iates. Secretary O. F. Company:"
Held, that be was personally liable thereon.
"viir V. G'triw, 8 C. P. 648.
Held, that a bill ilrawn by one defendant as
secretary, on, and accepted by the other defen-
dant as president of a railway comjiany, did not
come within sec. 13 of 18 Vict. c. 182, .as being
accepted by the president and countersigned by
tlie secretary ; and that they were personally
responsible. Bank of Montreal \. Smart et uL,
10 C. P. 15.
The plaintiffs declared against the acceiitor on
a bill as drawn in their favour, but which was
payable to the orderof Thomas (). Ridout, Esi] ,
cashier. It was endorsed, " Pay to Jidm Smart,
Esi]., cashier, or order. Thomas (J. Ridout,
cashier," but the name of Thomas (J. Ridout had
been struck out. Attlie trial the plaintiffs were
allowed to amend by alleging that the bill was
payable to the order of Ridout, who endorsed to
Smart, and that they, R. & .S. , being the plaintiffs'
agents and cashiers, received the bill for them,
and as their property : - Held, that the plaintiffs
could not recover, for the beneficial interest \.hich
they were alleged to have in the bill would not
entitle them to sue on it in their own name.
Bank .-/■ U. ('. V. J{nltan, 22 Q. B. 451.
A company incorporatc^d by C. S. C. c. (),5,
were empowered to borrow money for purpcises
specified, anil through their presiilent to make
notes, &<'. The president, acting ujion a resolu-
tion of the directors, signed the note in question,
but it appeared that the directors had not been
ap])ointed as reijuired by the act : — Held, that
the resolution sufficiently comjdied with the act ;
and that, as the statute empowered the directors
to authorize the president to sign notes, and the
])lHintiff hail accepted such notes in good faith,
and the proceeds of which were apiJieil for the
benelit and purposes of the company, it might
be presumed tiuit the proper authority had l)een
given. ( 'nrrh r v. Oltan-a (/<(.•( Co., 18 C. P. 202.
A mining company incori)orated under C. S,
(.'. c. (i3, s. 57, has not, as a necessary incident,
the right to draw, accept, or endorse, bills of
exchange for the purposes of tlieir business ;
and the power of " selling or otherwise disposing
of their ores as the company may see tit," in
their articles of association, will not give such
right by implication. Bills directed to the sec-
retary of the company, and so describing him,
are in effect drawn on the company, and author-
ize him to accept on their behalf, if he has
authority to liind them ; and it is unnecessary to
put tlie seal of the company to the acceptance.
His authority, and the power of the company to
accept, are put in issue by a traverse of accep-
tance by the company. \Vliere there is no men-
tion in the bills or acceptances of the amount
of the capital stock the trustees, under C. S. C.
c. ()3, s. 57. are personally liable ; but only where
but for such omission the company would have
been liable, which here they would nothave been.
OillH'rt V. McAnnann et al., 28 Q. B. 384.
Ueclaration on a note made by defendants, a
building society, incorporated under C. .S. U. C.
c. .■)3: — Hehl, good on denuirrer, for they might
legally make notes under certain circumstances.
Snarr v. Toronto Permanent BuUilimj A- Sarinijs
Societ;/, 20 Q. B. 317.
In an action against defendant as acceptor on
the following bill of exchange :-"J800. -Mon-
treal, Feb. 11), 18()5i — Two months after date
pay to the ortler of myself at the J»-c<iue8 Cartier
lY'm
; I
/
479
BILLS OF EXCHANGE AND PROMISSORY NOTES.
48()
Bank in Montreal, eiuht hundred dollars, value |
received, and cljarge tiie same to account of K.
E. (lillHjrt. James ( Jlass, Secretary, Hichardson
frold Mining Company, Belleville, Ontario,"
and accepted "The Richardson (Sold Mining
Co., per James' Glass, Secretary:" — Held, on
dennirrer, not to be tlie acccj)tance of defen-
dant, and that he M^as not jiersonally liaMe.
Jfohi'iisun V. (ihiM, 20 C. V. "JoO.
See ('or/mrdUim af Taroiila v. Mrliriil<\ 20
Q. B. 13, p. 480; Mirrlil v. Miijirell, 14 Q. H.
500, p. 484 ; WiUmi v. (lutes, 1(J Q. B. 278, p.
484.
2. Aiii'Htx.
McC. & Bros., acting as agents for L. T. k 1'.,
purchased a load of coal, without stating to tlie i
vendor that they Mere acting as agents, and [
upon receipt of the coal sent in payment a draft
drawn by them, and accepted by their princi- {
pals, to which tliey signed their own names as i
drawers, adding the word " Agts :"--Held, that
they were pei-sonally lia))le as drawers. IMd v.
McVhesneij, 8 V.. P. .50.
See previous sub-head.
.S. Kiicutiirs.
The defendants .is executors jmrclmsed goods .
of the plaintiffs, and gave notes, " nxintiis
after date we, as executrix and executors of tlie
late B. P., promise," &c., signed by defen<lants, ;
"executrix and executors of B. P., deceased :" j
—Held, tliat they were ])ersonally responsible. !
Kerr et (il. V. I'lirKoiix el ill., 1 1 (.'. r ."ii;}. I
See Oore Bmik v. Cronk-s, 26 Q. B. 251, p. 4!)2. I
mittee of the congregation of St. John's cliurci,
in the town of Prescott, and his succis.sdr ilu],'
appointed," was a note, and miglit be .suimI uimr
by his administratrix. Puttmi, ti</iiiiiii.</riiiril,'
Me/rllle, 21 (,). B. 2().3.
Two trustees, desiring to purcliaso a new
school site, petitioned the township tdinRil i„»
a loan of !?4()0, which was grantecl and scoureii
by two instruments, as follows :-" \\\,^ (|
unilersigncd trustees of school suction .Xu i]
do hereby promise to pay the treasnrcr «]f th
corjxirat-irMi of Toronto township on, " itc, simeil
M. k \)., trustees, with the corporate s^al aftix,;,!
The money was expended for the ]nni)(isu inn
tioned : — Held, I. That the town!shi[i (.(iriiiini.
tion could not recover on the not^.■^i, fdi' t|J,.
were ])ayable to the treasurer, not to tiii> iilajn'.
tiil's, anil were not negotiable ; 2. Tii.it tiic ilitVi,.
dants were not personally liable uihiu tLem
<'iirj)t>riitiiiu uf the TtnniKhip nf Turtinliis ]h
liriile et ,il., 21) (l B. 13.
Declaration on a note jiayable to (1. cir i,i.||^,|.
Plea, non fecit. The note when priMhueil was
payable to (J. or order "for the use uf .M. ■;[_
Held, no variance, for it wasdeclaied mi aawl-
ing to its legal effect. Eipiitable ]ilua, setting'
out facts which, if true, shewed that M. was n"t
entitled to the money, and alleging that tlie
plaintiff, the endorsee of <!., took it with notice-
Held, that the fact of the note bfiiig exiiressed
to be for the use of M. was no eviduiKe nf suih
notice! ; for this shewed only M.'s right asaBiniit
(i., whereas the plea w.us in denial of his ri'ht
Mitnru v. t'o./-, .SO Q. B. 3()3. '^
i^ee ('i>ritor(ill(tii uf /'ert/i v. Mr(ii-<'itii;'''\n
B. 4.")t), p. 481 ; HduH- „j' V. C. v. /,'»//,/„' •'■i('i
B. 451, p. 478. ' ■ '
II. FoKM AM) OrER.vnoN.
1. Parties to whom Pui/ohle.
A note made payable to a person or his order,
or to the order of a person, means the same
thing. .»///«)•.-< v. ir;«;;(.s <> t^ B. 421.
"Three months after date we, or either of us,
promise to pay E. S. U. (the plaintiff,) or ./. F.
liU <in<>riH(iii, at the jiost office, EmViro, t'llO 17s.
cy., value received, in rent of farm," adding a
count on an acconnt stated. It was jiroved that
the defendant had been in possession of the
plaintiff's farm liefore and after the note was
made, which was given for rent due ; and tl'.it
the plaintiff was abroad at the time of making
the note ; — Held, that the M-riting was not a
note, but wouhl supjiort a recovery under the
account stated, lieeil v. A'l <</, 1 1 (»>. B. 2().
A note payable to A. "or to his wife, and to
no othur person," is the same as if payable to A.
ahme, ajid his executors may sue upon it. Momlie
V. Roii-iitt, U(i. B. 273.
"We, or either of us, promise to p.iy to A.
B., treasurer of, &c., or to his fuccessor or suc-
cessors in oHice, or order, &c. :" -Held, a good
note, the words, "or to his successor or successors
in office," being void. Med'rei/or v. Diiti/ it iil.,
5 (;. P. 120.
Held, that an instrument promising to pay
"tuJ. P., E84., treasurer of the builaiug uoiu-
2. Aiiiuiiiil or Time 0/ Pai/nieiit Ciiriridi,,,
" !>ue to Mr. Robert Russell t'.'iOO for value
received, by imiirovemeuts, lunilicr, ami sem-
tnde on Madawaska River, jiayalilc at tlit sale
of the lumber marked P. A. in (^>UL■lK'l• (.r else-
where :" Held, not a note, Ihu iiaynic-nt Ipeiui 1
subject to a I'.mtingency. Pa-isil/ v. HVW.<, ."in"
S. 725.
"Seventeen months afterdate, I immik to j
pay to H. or order, .t'50, witliout interest, -f
three years and live months aftei- date, witlitnii
years interest, for value received :" Helii, a\aliJ j
noU', lieiiig payable certainly at the latest ilar.j
//»;/./ V. J/r(;-.v/(, 5 Q. B. 31!»".
A promise to pay a certain .sum "«itliei-j
cliunge on New '^ ork :" - Held, iicit a imte : tk]
amount lieing rendered uncertain liv tlieiiuitt-f
tainty of exchange. J'o/iik r v. /'ii/i/«.MVi,)|
C. P. 172.
McliCan, .1., concurred in the above ilftiwl
Robinson, (,'. J., and Burns, .1., ex|in'sse'l »|
oiiinion on the point, it was, liuwever, lieli,!
that there was no right of action agiiinst tli(|
endorser as upon a guarantee. A'ii/i«'.-*«-i '.J
Palmer, 20 Q. B. 307.
Held, ftdlowing Palmer /■. Fahiiestoik.i'Cl
P. 172, that an instrument pui|i(iitiiig t" l«ij
promissory note, with the wonls, •'wiihtif
change not to exceed one-half per cent.,
not a note. Suxtoii v. St e re 11 -tif 11, i.S (.'. !'■ ■
See, also, Wood v. Young, 14C. P. ioOiO'™
481
BILLS OF EXCHANGE AND PROMISSORY NOTES.
483
23 Q. B. 387 ; Cnxhman v. Held, 20 1 the ilollnr iiamtd in them was not cfiual to
I tlu! (lolliir of our iiioiiey, nor of any tixud value ;
anil that, cxct'iit liy cnilonfunient of said notes by
(lofeni hints, there was no coiitraet l)etween them
and the i>laintitl';Held, that the plea was good,
and not objeetionahio as varying the written
\\m. I coutraet by parol. Ih.
,, ,, -,.„-, , ' Ihie J. (1., or bearer, ^482 in Canada bills,
county treasurer :-Held, not a hi 1 ot exeh nge, payable fourteen .lavs after date," &e. :— Held,
tlHara"U"t payable being dependent upon the „„t .^ ^^,,^^.. ,-,„, sueh" bills (issued undor 29 & 30
ooHtinuanco of the plaintifts daun ni the^siut, ; vi^.t;. e. |0) though eurreney, are not specie or
money. (I'l'di/y. Wun/'ii, 2'.) (i. B, 5,3").
See next sub-head.
V. )'l""'f/i
C. !"• '•*' •
"In the Queen's Bench. The Municipal Coun-
cil (if the county of I'ertli, plaintiffs, v. Thomas
Smitli, .lefenilant. " Please pay K. R. attorney
tor the plaintills in this cause, the sum of t;i2r>,
„nacc(iuiitof j)laintill»' claim in this suit. Wn-
Smith," atMresse<l to and accejited by A. Me( i
awl therefiife subject to a contingency :— Held,
1 I jiiat if a bill, the attorney only could sue
iiiioii it ''>-^ payee, not the plaintiHs in the suit
inmed Tlir ('(irjiurttlioii of tlii' Count i/ uf Pa-th
;!j/,.;,V,,,,.', 21 (?. B. 4-.9.
Plaintiff declared on the common counts, and
mi.,n the two instruments foUowing : " Frank-
fort, ilith Niiv., ISGK
liiromise to pay 1'. Iv
Six months after date.
hiromise to pay i . I'urley, or bearer, ft!l2r) for
value received ; and 1 also agree with said Tur-
lev to give him at any time he recpiires it any
Kcnrity he requires that is in my jiower to give,
jt mv cost .and charges, for the payment of the
jliov'e amount of 6125; and should I not comply , stated
Tith his request, then the above mentioned
4. Eiii/'irMiiii'iits or (Jiinllfi/ind Stipulationa.
"Ten d.ays after date, we promise to pay M.
X. f85 15s., f'.r value received," upon which,
when givii, was imlorsed, " It is agreed that
this note is to be paid by a lawful mortgage,
with interest on the same, having three months
to run :" —Held, not a note as between the
oriifinal jiarties, nor evidence of an account
jmount to he due to him from the date of such
I ttfusal " "Frankfort, 27th Nov., 18til. Due
[year afterdate, I promise to pay P. Turley, or
liearer, 8S'i, with interest, for value received ;
Itnil it said Turley should re(piire any additional
liKiiritvfor the payment of the above amount,
llhcTebv ajj'ree to do so at my expense, and sluudd
iiKitciiniiily with this re.iuest, then this note to
, considered due from said date :"— Held, that
A uotes at all, the plaintitF could not recover
Kikiu them as such, as they would only become
Idiic as notes at tlie expiration of six and twelve
jnnths, which times had not expired ; and that
[the alisence of a special count, stating the facts,
(itb evidence to support it, the action must fail.
f„fhii\:ll''^'lm.ih, 12 C. P. 380.
' See J/cViicew v. McQueen, Q. B. 53(J, p. 538.
■1. Xot Piujnhle in ^fon<•l|.
\ h agreement to pay a certain sum in carpeii- i *:
ler'soijiiiuer's work, such as might be required,
jimiit be declared on as a note, Ihiirn.i v.
jfi-.Vinrtd/vi, 3 y. Vi. 270.
;.\pniniiset()pay "in cash or mortgage upon
' 1 estate," is not a note, not being an absolute
((iffiise to pay money ; and it does not Ijcconie
I n lite liv the maker's election to pay in cash.
fciV:;v. Bdcic.V/.-, Hi Q. B. 45.
[Q,;vre, whether an instrument purporting to
I a liiU of exchange, payable in New York,
rith current funds," if it mean other than
rfnl munev of the U. S., is a bill of exchange.
'<'!:■< y.iitrni, 15 C. P. .")48.
Held, that a note made in this province, pay-
'ein current funds of the U. S. of America,
I lilt a proiuiiisory note. BettUx. Wdhret
, 30 (). 1!. 23.
Xeir/inrn v. Lfi irnnrc el (if., 5Q. B. .359.
Quierc, would it be a note in the hands of an
endorsee, who took it as a note for value ? lb.
"Toronto, 12th .M.ay, 18.58. Six months after
tl.ate, we primise to )iay to J. B., or onler, S400.
(Signed) -X. .f.,\V.\V, 15., H. W. I). The above
note is to be paid in inerohantable lumber, to be
delivered in 'i'oroiito at cash price, and an ad-
ditional (luaiitity of lr"il)er sutficient to i)ay the
freight is to be sunt in. If not so i)aid within
the time, then tlie s.amo is to be ])aid in ca.sh."
This meniorandiiiii was written on the face of
the note when it was signed : -Held, not a note :
--Held, also, that defendants were clearly not
estojipud from ck-nying that it was a note by
having, in .addition to the plea of non fecerunt,
denieil in other pleas their liability to pay " the
said promissory note." linultan v. Jonete) al., 19
Q. B. 517.
A guarantee endorsed on a note at the time
of its execution in the following words : " We
! guarrantee the payment of the within note,"
does not shew a sullieieiit consider.ation for the
promise, the ease l)eing within the Statute of
Frauds. Lurk it nl. v. Ii<Uht cil., (J O. S. 295.
An endorsement on a note of a condition, made
before the note is signed, is ]iart of such note. If
made after the signing, it will be considered
merely .as a meniorandnin to identify the note.
McKiiinon v. < 'mn/ilii II, (> L. .J, 58. — C. L. Chamb.
— Richards.
" I guarantee the paymont of the within,"
eiidiU'sed on a note, over the signature of the
i payee, treated a.s an endorsement ot the note, and
I not 18 a guarantee or collateral engagement for
I its payment. Il'ii/Xvc v. O'lieilly it ul., 7 L. J.
j.300. -C. C— Mackenzie.
i Action on a note niaile by defendant, pay.able
j to H. or bearer, and by him delivered to plain-
tiffs. Ple.as, 1. That the note was made to
'be pliintiff having declared upon such i secure the last instalment of jmrehase money ot
land sold liy said H. and others to defendiint,
and wlien iiiaile was subject to a condition writ-
ten thereon, that if the persons named should
convey to the defendant said hand, according to
a certain lioud given by them, then the uote
k. ileieiidaiits pleaded, setting it out in Ine
hi. and alle^'ing that it was made in this
Ifincc : that tlie current fumls mentioned
piper notes issued by the V. S, govern-
^t, aud current there aa money, but that
31
R''lW^I'lli|
'' 1 ,!if
■II : '
483
BILLS OF EXCHANGE AND PROMISSORY NOTES.
iU
11;
vt,
should bo valid, but otherwise should be void :
that they did not convey, and that said note
was altered by H. by erasing the condition, so
as to obtain for it currency, and not to correct
any mistake ; 2. That at the delivery of saiil
note to defendant there was written or endorsed
thereon, with defendant's consent, a condition,
&c., (as in tlie iirst plea) : that the laud was not
conveyed : tliat H. afterwards fraudulently ob-
literated said condition, so as to render the note
negotiable ; and that plaintifl" received the same
with notice of the premises : — Held, both pleas
good ; and that tlie agreeinent nuiat be looked
upon as part of the uistrument. Vuinphill v.
McKinmm, 18 Q. 15. (il2.
The defendant owing the plaintift' delivered to
him a note for §100, made by one .Fohn !Mc(iee,
payable to defendant or bearer, on tlie back of
which defendant signed tlie following guarantee :
"In consideration of the sum of one hundred
dollars, I guarantee the payment of the within
note :"— Held, that the guarantee was suiiicieut
within the 4th sec. of the Statute of Frauds ;
for although no promisee was named in it, yet
the reference to "the within note," made it a
promise enuring to the benetit of the bearer.
Semble, that the guarantee created an absolute
promise to pay at all events, and tliat defendant
was not entitled to notice of dishonour ; l)ut
there was no plea raising this (juestion. (^ua're,
whether defendant could be treated as a joint
maker. Palmer v. Bahi; 23 C. P. 302.
5. Other Points of Form.
A note made and endorsed in a foreign country
is negotiable here witliin tlie statute of i-\nne.
ThompKOii v. Skxiii, M. T. 2 Vict.
A note made in Upper Canada payable at
Montreal, is an inland note, being in effect
payable generally, under 7 Will. IV. c. o, and
may be properly protested the day after the
third day of grace. Jira<//iiin/ v. Duole, 1 Q.
B. 442.
"A. & Co., by A. junr.," prima facie imports
that A. signs the note for, and not as one of, the
firm. DowUnijx. Eastwood et al.,Sii. H. 37(5.
A note payable to the order of the plaintifl',
need not be endorsed by the plaintifl' to himself
to give it the effect of a note jiayable to him.
Mei/vrn v. H'illiamn, 6 Q. B. 421.
Held, that a note payable to the niaker'.s own
order, and endorsed by the maker, ccmld not be
decliired upon as payable to the plaintiff or
bearer. liitni'< v. J/ar/nr, iiii.B. WJ ; Walliin-
V. Henderson, 7 Q. B. 88.
Semble, that a note in this form when endor.sed
by the maker becomes a note nayable generally
to bearer, but not to any particular person. Jiiirnt
v. Jlarper. « Q. B. 509.
But to declare upon such a note that ho (the
maker) made an instrument in writing iiromising
to pay to his own onler, would be bad. Wallare
v. llendermn, 7 Q. H. 88.
" Three months after date, pay to the order of
W. T., at Port Hope, t228 78. (!d., for value re-
ceived :"— Held, not a note, for want of a promise
to pay ; nor a bill, for want of a <lrawee. For
toard el at. v. Thompson el al., 12 Q. B. 103,
Assumpsit upon a note, alleged to liave Um
made by Tlie vVolf Island Piaihvay ainl ('|,y
Co., payable to defendants, and eiKliiisetj' l*
them to plaintiti's. Plea, that the writiiii/ jhJ,';
on is an iimtrument under the sual nf th
company, and not a promissory n(,tf, (u- neui'
tiable as such :— Held, on demurrer, pleai'ijiKl
— Held, also, declaration good, as tlieiKHirt I'lmlJ
not assume that this ccmipany wentiiut autliir
ized to make notes. Merritt etui, v if„, '»!
etul.,H(i.B. 50. ■"■'"'
"For value received, we jointly and scverallv
promise to pay to W. P. O or l>earcr, tlio sum , if
tT)0 cy. , in manner following, " &c. " As witness I
our liandsand seals, this 29th day of April liVi
— M. M. Patman— [L.S.] E. H. < lutes -'[Ls]
Signed, sealed, and delivered, in inesfiice nf M
S. :"— Held, clearly not a note, ))ut a siiecialtv
Il'j/.WH V. Gales, 16 Q. B. 278.
"Mr. O.— Mr. B. wants £2,1, twelve nVlotk I
this day, i. e., 13th of February, ISliO. Ivautl
you to get it him immediately out of S. 's iiKmcv, f
Signed Tiy H. and accepted bydefemlaiit :— Hdli i
not a bill, liecause payable out of a iiartiiiilajl
fund; and that the plaintiff could not rtcdverl
upon it under the common counts. Orke
v. liluekhtk, 12 C. P. 3(52.
Pebeutures or coupons cannot l)u consiiicredl
promissory notes where the company which issaes
them have no authority to make iintes. (,'«""
V. Toronto ^Street It W. Co., 14 (' 1'. ol.'i.
Defendant with others signed the follnwu):'
his subscription being .^jilOO ; — " We the iiiikrl
signed do hereby severally promise ami agree tol
pay to F. ^^^ T. Es(i. (the plaintiff, lajjeiit'^ditliel
Hank of Montreal in (Jodericli, the" sums «t|
opposite our respective names, for the mt[m\
of building an Episcopal churcli and reetnrv in|
the t(>wn of rioderich. The declaration therwa
alleged that in consideration that \V. aiidnthciil
would promise defendant to pay tlie iilaiitil
certain specified sums for the purpose, it.,
that pl.aintiff would pay !? 100 tor the same piif|
pose, defendant promised to pay lihiintiti S|()f
therefor ; that W. and others did promise ,inl
pay accordingly, and the plaintiff paid $I0(). yef
defenilaiit had not paid. At tlie trial the jili
tiff's promise to contribute iJIOOwasnotpniveiiJ
Held, that on this grouiKldefeiulant was enritk
to succeed : — Held, also, that the instniM
was the several promissory note of eacli sfA
scriber ; and as it seemed tliat the iilaiiititf'
entitled to recover, though not r.poii tliese]'lti
ings and evidence, a new trial wa-i (inlenj
on payment of costs. Tlmnins v. <!iwi, I5j
P. 402.
"I promise to pay," signed by twn, is ji
and several. C're'ni/iton v, /'/vV; iNi/., L'dlij
027.
Held, (affirming the judgment of tlie (' Pl
Wilson, J., diss., that an instninieiitiiitliistiir
"(lood to Mr. Palmer for •'?8."i() mi doimiiKL'V
not a promissory note, and so reiiiiiriiigasta
but, (i Wynne, .1., diss,, that without aiiyemla
of the circumstances under which it v!^fi
it was prini.l facie evidence to l'o to a ji^l
an account stated. Palmer v. McLinm*,^t
P. 565, .V. V. in Appeal, 22 C. 1", 25S.
iSee IX. p. 503; X. 1, p. M
485
BILLS OF EXCHANGE AND PROMISSORY NOTES.
486
III. Stamps.
I. Pliiulinij and Eriilinco,
Where dcfeinlivnt neitlier denied the making
ftlie note sued on, nor pleaded the absenee of a
jjji^p .—Held, that a defenee on the latter
Lwiinil could not be urged. Biuter v. Bityn<'.t,
l,iC.l'.'237.
ScniWe, 1. That the only mode of raising the
(lefeiieo (if the want of a legal stainj) iH l)y a plea
ilviiyiiig the fact ; 2. That sneh ple.a wonld lie
ilisiiliw-'cil hy evidence shewing that the instru-
ment had iMJen properly stamped at the time of
siflwture, and initialed by the maker, but had
teu rubbed otf, defaced, or improperly removed
1)V some one else ; that oii these facts being .'iliewn
the note would not be void, and defendant
would be relieved from the penalty. Stepheim
V. Bmy, 15 C. P. 548.
Baxter v. Baynes, \5 C. P. 2.S7, as to pleading
gpecially the want of a stamj) adbereil to. But
aT express leave had been given to enter a non-
suit for want of proper stamps, and the ease had
ten .irgiied on that ground, the (piestion as to
I luth defence being admissible under the plea of
non-acceptance, was not insisted upon. lb.
Declaration against endorser. Plea, that at
ilie time plaintiff became a party to said note,
irowr stamps were not atHxed, and double
amps not attixed till a long time after. Kepli-
itinn, note endorsed in blank to plaintifT. who,
hile holder and before maturity, affixed di)uble
Held, replication bad, as not aver-
ig that as soon as plaintiff became aware that
nper stamps had not been aflixed by tiie pro-
r parties at the proper time, he aflixed <louble
lips. Md'cilla V. Jiobinmn, 19 C. P. 1 13.
The plea was, that no stamps were ever aflixed
the note according to the statute : — Semble,
ijt the defence that proper stamps were on
it had not been cancelled was admissil)le
(ler this plea ; but, as an amendment would
ive ken allowed, the point was not expressly
iM Young v. Wayijotn'r, 29 Q. B. 35.
I An action for a penalty for not affixing stamps
DiW'2"&28 Vict. c. 4, s. 5, must, by 31 Eli/,, c.
\ W hrouglit within a year. No right of action
Bts in the plaintiff until the action is so
tought, and defendant, therefore, nuiy take
iTautage of this latter statute under a plea of
•tguQty. Mmoii (|. t. V. Monnoj), 29 Q. B. 500.
|The defendant was held not precluded from
Ich defence by having markeil iu the margin of
iplea the statute 21 Jac. I. c. 4, only. //).
i note not proiwrly stamped cannot be used
|>n acknowledgment to take a civse out of the
ptute of Limitations, or as evidence of an
muut stated. McKay v. Orinh'!), 30 Q. B. 54.
in an action on a promissory note, by a subse-
Vtiit holder, the only question raised by the
(was, whether or not, when he became the
Ider or received the note, the plaintiff had
blied with the act by availing himself of the
Vlege of affixing the double stamps, the note
m Wii formerly held to have been insnffi-
ptlystampedin the hands of a previous holder,
luul in consequence failed to recover upon it.
eviilence, however, clearly shewetl that
■ the note was received by the plaintiff,
which he swore it was in good faith and for value,
he did alKx the double stamps, which were also
duly eaneelled, i)Ut //laf he mm aware, when he
tank it, af llir fiinnir <lijlinil/i/ aliaiit llii' xtampit :
— Held, tliat defendant could not avail himself,
under the pleadings, of this fact, if a defence;
but tliat, as the record stood, the plaintiff
came within tlie protection of sec. 9 of 27 & 28
Vict. e. 4. Kirhii v. //((//, 21 C. P. .377.
To an action by payee ag.ainst maker of a pro-
inis.sory noti:, the plea wa.s, tliat there was not
cillixed thereto at tlie time of making an adhesive
stamp or stamps of the reipiiied amount, or any
stamps whatever, as recpiired by the statute in
that liehalf : -Held, on demurrer, plea good.
E.-»-otl V. Eitcott, 22 C. P. 305.
The payee of a note is not a " subsequent party
thereto," who may give it validity by paying
double duty. Ih.
Declaration on a foreign bill of exchange drawn
in Lonilon, Kngliind, on defendants, and accepted
by them in Canada, payal)le to the plaintiffs.
Plea, that tiie bill was n<it stamped at the time
of acceptance, nor the stamps cancelled, nor
weredoulde stamps atlixed by the plaintiffs after
they acrjuired the knowleilge that it was not
proiierly 8tanipe<l. Jteplieation, that the bill
was duly stamped in Kngland according to
the law of I']iigliind : that it M'as returned to
the plaiiitid's )>y ilefendants accejited, but not
stami)ed ; and tliat without any delay, and in a
reasonable time, the idaintilfs transmitted the
bill toS. & W. ill this province, and caused them
to i>ay the double duty, by affixing stamps to
the amount thereof :- Held, on demurrer, repli-
cation good ; for that uprm delivery of the bill
by defendants to plaintiffs after acceptance the
plaintiffs became "8ul)sequent parties to such
l)ill," within 31 Vict. c. 9,8. 12, as amended by .33
Vict. c. 13 1>, and were entitled therefore to
make it valid by [layiug the double duty : —
Held, also, that the replication sutticiently al-
leged the due payment by plaintiffs of the double
duty through S. k W. as their agents : — Held,
also, that the rejilication should have set out the
amount of tlie double stamps affixed, and the
mode of cancellation ; but that this was not
ground of general demurrer. WooUei) vt al. v.
J/itiilon <t al., 33 y. B. 152.
Helil f(dlowiiig Woolley et al. v. Huntou et
al., .33 (J. H. l.')2, and dissenting from Escott
c. K.scott, 22 V. P. 30."), that a payee ia a " sub-
soiiuent party" to a promissory ufite, within the
meaning of 31 Vict, c !t, s. 12, who may pay the
double duty provided by that section. The plea
was, that at the time of making the note no ad-
hesive stamp or .stamps whatever were affixed to
the note ; to which the plaintiffs replied that they
])aiddoui)leduty "by alfixiiigto the note stamps
to the amount of double duty payable in respect
thereof." Qujcre, whether the plea should not
also have denied that the note was written on
stamjieil iiaper ; and semble, that the replication
should have stated the amount in stamps affixed.
Thf Jim'iih Hall Mtinii/actHriiKj Company v.
Hani<l<n,lal.,MQ.B.8.
Heclaration, that defendant on, &o., l)ecame
the holder of and a party to a note made by one
E. payable to one T. or bearer, kc. — which note
was made on unstamped paper, and was charge-
able with duty under the 31 Vict. c. 9, — before
:;h
1:1.1
m
m
I lit
H
.vl^
i I
li
■;r'i 1,
.,-1 .1 l1 1
487
BILLS OF EXCHANGE AND PROMTSSORY NOTES.
48J
If
ii ''
^'■•HV
! 1,
I i
the iliity cliivrgoalilo l)y tlit; stiitiitoM in tliut 1 ))iuviri!is iioU'. Tlie .a),'eiit roceiveil it ontii(.2;ti,
behalf hiul l)euii paiil l)y ivlli.\iii,t( thtrotd the i OutdluT, aiid (Hi the -nd Xoveiiilior dutcil it iji).)
proper atanips in th.vt l)oliid(' ; Mud ^Ul.•h imti.' ttien Octolicr, IMtl'.t, iviid iiHixed tliu projior stiiniM vi
and inmiudiatfly after th(j time «h(.ii dil'tiidiint it, whiih hi- nlditcratid on tliu Minic ihivjn,,
Ixiuiiiue the liolder tlierenl, not having' thtreipii ! niurked the; ohlittration as of tlie .'tOtli (ii.t,,!,,,^
or atlixed tiiureto the [irojier Ht;ini)w, to tliej ";{(), lO, (>!(." In an action liy the einldisi,.
amount of the duty })roinily ehai'j^eahk' thereon, ;
contrary to tlie Haid statute in tliat heliail',
where))y and l)y force of the statutes in sn<h ease
defenthint forfeited .SUM). On motion to arrest
judgment, — Hehl, declaration j.'ood : tliatit was i
uiuieccMsary to negative the payment of double
duty by defendant ; for defendant's pi'oteetioii,
if any, mnst arise, on the facts stated, under see.
12 of the ;<l N'ict., not see. II, by which the
penalty is imposed, ami that it must tlierefore
be pleaded. L'd/iioin/i ii. t. v. J/oei/, (j. 15. M. 'J",
187-1. Not yet reported.
The 3(; Viet. c. \'.i, repealssccs. Hand I'iof [U
Viet. c. 9, I'., and suljstitutes others therefor :
Qua-re, whether these sections should lie pleaded :
as part of the lirst act generally, <pr stating
specially that they are .so by virtiu; of the last \
act. Seud>le, the latter. / '>.
It was objected that the refeienee here was to
31 Vict. c. y, which was repealed when the
iillcged cause of action arose: but held sullicient. ; the plaintitl' aecei)ted 1{. and W. in iilra-i- df ile.
lb. \ fendants, and took their note and reliiuiujsy
his claim against H. The fourth plea iivtrml
2 OlIiH- Ca.vn ' satisfaction of tlie plaintill's cliiiii liy tiie|
" ii I , 1 " c i 1 delivery and acceptance of the note III 1!, an.l
A party bc^ooming tlie holder of an unstamped ! ^y. The plaintiff replied to these ..k-as, tliat tlie
bill, must aHix the doulde stamp t.. it «./..,-, „„ty ^^,_.^g „„(. ^i„|y stamped, the staiini.s tlimw I
sueiiig upon it. L er Kichar.ls, ( . .1 he sli.mld ; „„(. ,,,^^.j„ ,,^,^,,1 .;,.„j,i.,-ly cancellcl : 11,1,1 I,,,!
athx the proiier stamp when in law he would be j-,,,. t,,^, p]ai„tit} could have made tla- n„U-'v,'li,l
considered as having taken and accepted the bill ; , ,itiixi„g double stamps, an<l couM n„t take
as his own, or withm a reasonaole time tliere- , ii.ivaiitage of his own neglect to do se. II,,//.,-
after. .Sleji/Mi.-, v. Jin-n/, 15 O. 1'. 548. j /..„/,;„,„„ ,7 „/., 30 Q. K 3()2.
Notes made in June, 18(i4 were ante.late<l .-is ; -^yiiere the holder of a note has nmmUA
of the previous year, before tiie .stamp Act came ! .j^tj^,. „f ti^, ,^.^„t „f p,...per stamiw, \u nml
mto force, and not stamped until Aiinl, 1 8()(;, alter i the presumpticm of kiiowled.-L- l,v r.-».
action : — Held, that tliey were void under '2~ &. "JS .v))le evidence or sir ' "
Vict. c. 4, s. t). h'ilr/iie v. /'rviit, Iti f. I'. 4'Jti.
Held, that the note w.-is invalid under 'M Vi.t
c. SI ; for if made on the "JTth or 30tli HctiilH.p jj
had not then the stamps altixed ; and it ,,„ (ii^
•_'nd November, the st.-imps bon^ a <lill''-i-|.iit .i,,
//<>/, nan V. ninu/rr, 29 i). K :m.
The non-cancellation of some 01' tin- stamiis
though the rest have been cancelled, iiivaliditij
the note. Loire v. Hall, 20 V. I'. 214.
Heelaration against Ii. and II. for godclssiijil
Plea, liy ilefcndant H., on eiiuitabh- gnjinuls, in
substance, that he and It. pureliastd the jjoiijj
while in ]iartuersliip : that afterwards lu- i-,tiroil
\V. taking his place, and IJ. and \V. assuinin,! I
the debts of the old iirm, iucludiiig this cl.iiin'
and that the plaintill' being aware of this arraii'c'
meiit, took the note of the new linn, I!, aiiilU",
for his debt. The third j)lea alleged that tlie I
plaintiff' had notice of the arrangeiadit, a* in
the former plea, and that in cousidi-nitidii that
lis lll-lit,
\V. wouhl assume the liability of II. I'ui-tl
The plaintiff in September, I SO."), sued the
maker of a note, due in .lanuary, \S()'t, payable
to H. or bearer, and by H. endorsed to the plain-
tiff. The jury were directed that it was sullicient
if the stamps were jiut (Ui before action brought :
— Held, a misdirection, for the plaintitl' became
a party to the note by becoming the Indder or
endorsee, iind was Ixmiid to stamp it then. Urn-
(lerson v. Gesiifr, 25 Q. B. 184.
The .Stamp Act does not reipiirean instrument
to be stauiiJcd which with st.imps wouM not be
valid for some purpose ; or, semhle, which would
not be a promissory note, dr.ift, or bill of ex-
change. Taylor v. O'dIiHikj, 28 Q. B. 198.
able evidence, or shew that as soon as hi- ac'i|iiire,l I
knowledge, he atlixed double stamps ; nr tliat lie |
made due eni|uiry, and was tliereliyk-dtn In-licit [
that the note had been iltlly staniped, ur hail nit J
reason therefrom to l)elieve that it hail imtlwil
duly stamped ; in either of wliii-li casts hi- iiiavlx j
justified in not attaching the doulik-sta.nii
he has knowledge by and at the trial. Tkj
notice to or knowledge of his attoriii-v nr m\i
must be considered his. l,'i)oii tlR-i-viili-inx-^iftl
out in this case, the court lu-M that tin iii«lie|
stamps hail not been put on in tinic. Wiitimi
i-f III. v. Mon/ijonin-i/, Q. H. M. T. 1871. \it|
yet reported.
Where a jiarty gave a draft on a cnriifiraMl
in<lebted to him, but the proper staiiips ml
i not on the draft when it was ilisciiiiiiti-il. iii|
t
No penalty, therefore, can Ikj recovered umler ! the bidder neglected to ]put on ikmhli- .<tjit|
27&28 Vict. c. 4, .s. 9, for not alfixiiig stamps ti
a note for money h>st at jilay, for such note,
under the statute of Anne, is utterly void. /I>.
In an action by eudor.see against maker, it
appeared that the proper stamps were upon the
note, but they had not been cancelled : Held,
that under 29 V' ict. c. 4, s. 3, the note was of no
avail. Younij v. Wmjijomi; 29 (}. B. 33.
A blank note made by R, payable to defend-
ant or order, and euilorscd by defendant, was
sent by F. to the agent of the Bank of Montreal
ftt Stratford, whore it was payable, to retire a
as reiplired by the statute, it was lii-M IMK
constitute an e(iuital)le assigmui-iit nt tlii-tii
of the drawer in the hands of sui-li i-iirimratin
But the drawer having written tu tliei-iiriKntii^
directing them to pay such draft froiiitlio (it
coming to liim, such letter was huhl to wiiti
tute a good e(piitable assignnieiit. yWjfrt*!'!
Grant, 3 Chy. Chanib. 331.— Strong.
IV. Al.TElUTION' ANT) C.WCF.r.UTIOS.
Where a note originally joint was altfwllj
joint and several without the consent of cm*
489
BILLS OF EXCHANGE AND PROMISSORY NOTES.
490
, ,»kcr8,wli'> was aftt-rwardM siiud aloiu' liy an
lorsee; lli-'l'l. t^'-'^' t''^' l>li"iitill' o<ml(l not
''""■over oil tlio note on account of the alteration,
[mroiithe money counts, as tlieie was no jinvity
LtWL'cu the maker anil liini. Siuiimuii v. ) '/;/(/•,
The phiiitift' iloclareil upon a note as made Ity
tk aeleiulints jointly an.l severally, qxwvc,
kthtT the interlineation of the words "jointly
!n,Ueveri»lly," of which no exi.lanation wars
ami severally
„llVreil, toulil l>e taken
,,,it, „r whether a spec
/_,.,/if V. EmiiKilitet III. '
'if V.
A., the hold'
tlie eiiiliirser.
idvant:ige nj under non
ial jilea was requisite.
reasmnl'le I
[IS, hi' iinisi I
; liy riiiM-
he ac'iiiirrf I
; iir tkthe I
iltulitfevt I
luiil ii"t KtJ I
les lie mi)l« ]
Ist.r.iniso
triiil, TV I
(ey iir apt)
■viilouot, i(t I
Htlie4(«llej
is:t. ^'*l
I eiir\imw|
litaiiil'S '<"|
iHlUtO'l si>i|
luhli' «(i|
IheM iwt
(if the
I eiiri««ti«
^ eiiriKinW
lim the
111 to lU
|l..UION.
las altfi^l'l
Ut o! mi
sued n. . th(^ acceptor, and (',
IS ujion a liill dated " 1st ol June, ;
l'^; iiavahlo three months afterdate," which, |
when linnliifc'd, appeared to have l.cen in fact |
,hteil "November, ISU, and pay.ilde tour j
„i„uth» afterdate," an<l to luuv heen ;'ltc'red l«y i
entire to read as deelare.l niiou : Held, tliat ;
alteration was fatal to the holdrr's recoveiy, I
ii ,iu endorsee for value, and not in any I
Held, also that the alteration j
iiirly
the ;i
thtiugli
mv privy to it
as'tdtiinuof payment was properly given in
tviaeiiee under the pleas "did not accept," and
"(lidnot endorse." Hut, ipiiere, as to the alter-
, rtiun in the date.
Mindllh
duhitante on this
->Q. B. -218.
Draper, J
wint. MffMi'it v. Viiliri;
Where a note over due has been retired and
I KttW liy ft renewal note, it is cancelled, and
Icanuut be put in circulation again even by the
tpavee who has taken up the renewal note out of
flis own funds.— Jones, J., diss. Cunlthr v.
' ?,„,,,r, 5 tv>. B. 15-'.
Where an endorsee suing the endorser upon a
lote produces it at the trial from his own eus-
lidxlv, with defendant's endorsement thereon,
leancelleil, not as if by any accident, but in the
iiist mieiiuivdcal manner, some explanation must
|k iiven tiie jury for rejecting the inference
M the iKite had been satislied by defendant
rhose name is thus cancelled. 1\-<1 v. Khin-viii/l,
|K'. B. 3t!4.
HuM, that the alterati<m of a note by the
olikr (hy placing the lignre I before the figure
till the ilate), after it had become due, vitiated
same, ami that the amount could not be re-
Bvtiicl fnmi either the makers or endorsers.
Mf V. Ikir, I) ('.. P. 43U.
See CmiMl V. McKinnon, 18 Q. B. G12, p.
V. Transker.
1. After Mat u rill/.
;A .«cenn(l aeciiinniodation endorser who
has
I a mite (liseiiunted at a bank for the beiietit
the maker, may maintain an action on the
ite against a prior accommodivtion endor.ser,
" mav enihirse it over after it is due. liriczi'
Ballm, .I 0. S. 444.
tieiil, 1. That sut-off by endorsees against the
pder, was no defence at law or eijuity, upon a
B given for the aecommodiitiou of the endor-
; '..'. That the endorsee of an overdue bill or
*, is liable to such equities only as attieh to
' "Inrnote itself, and to nothing collateral
8 from the endorser to the muker, or endorsee
Ipayee. Wml et ai v. JioM etal.,S<J. V. 299.
WluM'e an agent of the holder disposes of a
note over due, without authority, though for
good consideration, the person taking from him
obtains no title as against the principal. IVesl
V. Murliim:-<, 'i:\ i.). n. 357.
A valid agreement to give time is an etpiity
which attaches to a bill as against a person taking
it after maturity. Jlritlnii v. Fis/ii r, 2()(^. B. 338.
'!'<! an action agiiiist the maker and endorser of
a note, the tn ikrr plcadeil, on c(iuit;ible gouiids,
til '.t there was an agroemciit not to negotiate
tlii^ note after maturity ; and that the note was
lirst endorsed to the plaintitV, as in the declara-
tion alleged, after maturity, with notice of its
being an accommodation note : -Held, plea good,
the agreement alleged being an eijuity attaching
to sueli note after maturity, (/rmil v. IVinnlanli'i/,
•21 c. r. •2-u.
nefendant also pleaded that the note was en-
dorsed by the payee durin;' its currency to one
K., who hail 7iotice of its being an aciitmmodation
note, and that defendant was only »ecurity for
the payee : thit l{. held it till at and after ma-
turity, but did not notify the payee as endorser,
who never received luitice of disliouour, and
defendant was thereby discharged ; and that the
note was endorsed to plaintiff after maturity,
with notice that it was an accommodaticm note :
Held, on demurrer, plea bad, for the want of
notice could not prejudice defendant. lb.
The plaintiff sued as bearer of a note made
by defendant payable to <ine McL., or bearer.
Hefendant pleaded, on e(piitable grounds, that
Mcli. being the holder of said note, deposited it
with one Mel), as collateral .security for the pay-
ment by saiil McL. of a certain note of the said
Mcli. then held by said Mel)., which said note
[ Mel), transferred and ilelivere<l to the plaintiffs,
' and deposite<l the note in the declaration men-
tioned with the plaintiffs, after it became due as
eoUateral security ; and that the said McL. did,
before the coinmeneement of this suit, retire, pay,
and satisfy his said note, and was and is entitled
to a return of the note now sued on, so held by
the idaintitl's as collateral security, and is the
lawful holder of said note : — Held, on demurrer,
plea bad, for, I. The terms upon which the note
was transferred to McD., which fonned no part
of the original consider.ation for which it was
given, and to which the tlefendant was no party,
did not constitute an ecpiity attaching to the
note in the plaintiii's' hands of which defendant
could take advantage ; and, 2. That even if it
wore assumed that the plaintifl's had no better
title than McD., still Mel)., being the holder at
maturity, had a vested right of action against
the defendant. Cundilkni Bdiih of Commerce v.
7.'o.s.s 22 C. V. 497.
See Brooke v. A mold, Tay. 25, p. 550 ; Davis
V. Dhiiii, (i (I. B. 327, p. 52(i ; liennh- v. Jarvis,
() Q. H. .329, p. 532 ; Clartvm v. Laimon, 14 Q.
B. t)7, p. 530 ; /'///>«»• v. McKay, 1(5 C. P. 67, p.
545.
See XII. 4 (d), p. 533.
2. Other Vaneg.
An eudorseincnt to pay to the trustees of an
insolvent tirni, without naming them, is suiii-
cieutly certain. xiuUljo v. McDoiKjall, 3 O.
S. 199.
V.'- ■ I
1 '-■ ■■
m
\yv
\'^m.
v^i. \'. :'■«
in
BILLS OF EXCHANGE AND PIlOMfSSORY NOTES.
4!>i
11 3 s
I
It '
\m
•I
It is no ground for iiiii)eacliiiig tln^ ciidorHo-
ineiit of nil adiiiiiiiKtriitiir, tliat t]\v ililitor at the
time of till' ilitt'Htiiti''s ilcatli rcsiduil out ol tlif
jnriHdictioii of tin; Sum^'ato Ccnirt, liy wliicli
the luttei'H of adiiiiiiiHtratioii liad lieeii ^'raiitcil,
Wriijlit V. MirUiiii, (i (». S. 4(i;{.
WluTo iv note was tiiailc \i\ defendant, a ivsi-
ilent of l'j)]ier Canada, payalile to i'., mIio died
in New York witli tlie iKite in Ids jioM-seHsidii :
Held, that fiis adniinistratoi-.s a|iiMpiiiteil in that
state nii;,dit endoi>ie tiie iKite mi as to enalile the
endorsee to sue miiin it in this ecmntrv, withmit
their having udiiiiiiisteied here. Iliuil v. I'ltl-
mr, 20 q. B. -JOS.
Where in a deed of sejiaration the husliand
covenanted to pay his wife tJlaO, ami aiipointed
trustees, who, lieini' indelited to the htisliand in
that nniouiit, gave liiui their seiiarate imtes for
tiayiuent to his order, « liieli he enddised in
ihink, and returned to them for tiie lienelit of
]iis wife, and one of the tiiistei's then gave to
the wife the notes signed hy him, w ith an endorse-
ment that they were not to lie snld liy her, and
she assigned tiieiii to the iilaintill : Held, tli:it
he eould not reeover against the trustee (in the
notes, as they having heeii retuined hy the
husband to the trustee were eaneelled ; and that
the wife had, at any rate, no jiower to transfer
them. Wilson v. Mcijim ii, K. T. ',i N'ict.
Deelaration on a imte made liy defendant,
payable to I>. or order, and liy I', enilorsed to
plaintiil's. I'lea, that l>. when the note was made
was, and still is, defendant's wife. Keplieatioii,
that defendant made the note with the intent
that U. should endorse it away, anil that she
endorsed it to the jihiintifl's liy his authority :
— HeM, bad <in demurrer. Mclri r il iiL\. Dm-
nlMm, 18 g. r.. (il!».
It is no objection to the validity of a note,
that when endorsed to the plaintiU's it w.is not
signed by the maker ; the 8ii!isei|iieiit lilling up
of the maker's name, or of the anKnint, or nf a
payee's name, will be treated as if made before
the endorsement. No.stin it til. v. McCiniij, 7
Q. B. 100.
The bail of any one sueil ujioii a bill or note,
or any persons who pay it on aeeount of any of
the parties, become on payment holders ; and
they liohl as upon a transfer from tlie- person
for whom they pay, not .is from the persdii they
have iiaid ; and they stand with respect toother
parties to the bill or note in the situation of the
party for wtioiii they pay ; and, e<insei|Mently,
unless he could have sued uiion the bill or notit,
they cannot. Ifiitchinndit v. Mitnnif, 8Q. B. lOH.
Plaintiffs sued defendant, who w.is an execu-
tor of I'i., as endorser of three notes jmyable to
"the executors of the late M.," two being en-
dorsed "J. M. B., agent of the exeeiitois of the
late E," and the third "the executors late K.,
per pro. B. " H. hehl a power of attorni'y from
the executors, by which the^- as executrix and
executors authorized liim (amoni' other things)
for them as such executrix and executors to
make and endorse all such jiromissory notes as
might be reijuisite in the conduct and manage-
ment of the estate. These notes, it appe.ircd,
were received by B. from the makers for debts
due to the estate, and given by him, cndoi-sed as
above, to M., one of the executors, wlui was
largely indebted tu the estate, and was iu difli-
cnlties, M. telling him that he wanted tur..
them discounted on his own account. Tliii
were so discounted by the plaiiititl's, to wlnnnM
owed a large; sum, ami who made no eiMiuiriis u
to the extent of IVs. authority, or the eirnnl
stances under which .M. obtained them. |)i.|\,,|
ilant Knew nothing of the matter imtij alter tli,.
notes fell due. 'I'lie court being left td (ln»
inferences of fact, and the (juestioii luiim ti ,
|iersonal liability of the defendant; (jiil i
That the indorsements were siilliei( nt iiiiiir,,,.
but, 2, that not being for the Jiiii |i(is,s c,| jjit
estate they were not within the aiithoiity invu
to li., the extent of which it was the iilaintjiiv
duty to aseert till ; and a nmisuit was unk-rt.!
'/'//<' /'r( nil/ill/, Diriclnrs tnai '''nii/iiiiiii ai' iii,
diiir /iitid- v. ('r(,i,/:i,\H;(l [^. '2r>\. ' ''
See ItiiiiiiiKiiiil v. •Siiiiill, Hi (^. |(. ;)7| n v,i,
MrCartlni v. \-„i<; '2> V. V. 458, p. ,-,(i7 '
See X. p. ')03.
VI. Pfik.sknt.ment i.-ou I'avmkst.
I 1. 'I'll irlioiii, ir/iiii, mill ir/ii IX.
j A note p.iyable at a jiarticular plaeu must lie I
'presented there on the day it falls diiu, nr the
holder cannot recover against the emlorstr
TriiM'ull y, /,(r;/o(//v/(', ,")(). ,S. 1,'U.
i It is not necessary to prcseiita hill ilrawiiiiav-
; able alter date, for acceptance liefoie it Inline;
i and where .i bill is made payable at a iiaiticulai I
jilaee, presentment there for payment im tin- dav f
it falls due is siidicieiit to charije the drawer. n'r
to enable the person who took the liilltniuel
(in his original cause of action. I'kkwdmn ■f
Diiiiiils, :, (>. S. ()7I.
I
[ On a note iwyable at a particular pl.ue, \iitli.
' out the words "and not elsewhere," it i^suli-
cient to present it either .at the place ll;ilm^l. or I
to the maker liimself. Vitiiimimul H,i„i; v. |
.lii/iiisliiii, '2 (^ B. I2(). See fimd- uf V r t
I'lir-iiiiis, -A (I. ii. 38.3. See, al.so, (j.'s. V. (U j
42, ss. "), ().
.\ note due <m a Christmas D.iy, liuiii;.M Mis-
day, must be presented on Satunlav. li'mi
v. Ward, T. T. 1 k 2 Vict.
I See now C. S. U. C. c. 42, .s. 20; .IjV.tU
s. 8., 1).]
A bill drawn in Toronto, on the (!tb .Aiwi;
184'.», III/ II jiiir/i/ ilialiiiij in /'///<, ii|iijn a |kiily
living in New York, payable at sight, in fav.itrijf
a party living in Illinois, to he seiit tlurejii
remittance and for circulation, was ]ircsiiit<i!i
New York, on the lOtli Novenihei f(illi)\vini:-j
Held, that the delay could not, iiii(kr tliciT|
cumstances, be held to be l.ielie.s mi tliepntj
of the holder. Jloi/i:^ v. Juii pli, 7 (,>. B. .i05.
The plaintiffs sued on a note iiiade liy "lie f,
payable at no particular place, and lmkIhiwI
defendant. The note was left at tliilank
Coboiirg, where (,'. then resided, fur iniktidi
.and the clerk who was to present it, stateili
before the note became due he lieaiil tiiit
maker had left Cobourg : that oil its te
diU! he went to the Tiouse in which T.
resided, but could get no infdnii.itioii resjwl
him. He encjuired of more tli.iii oiiu ihtoiii
liivd known C. well, but their ansffeRM
where he had gone were ijonlhcting. ^^ii
493
BILLS OF EXCHANGE AND TROMISSORY NOTES.
Ji
f the ilefciice, of whom V.'a partiior wiiH ono, | Ujioii tlu; is«iios of iiou-in-uKi'iitinuut aiitl iion-
t toil tlirtt III) ni;cri't was iiiiulf of his iiittinloil payiiiuiit, the lioldur of a note will ho eiititleilto
1 'iwrturo ; that liis furniture was ailvertiseil ; ^ roeovcr (if,'aiiist tlie eiuhirser hy proving his
1 fliit tl'iev eoiihl at any time have L'iven cor- , siihsei|iKiit express or iiniilied iiroiiiisu to pay,
j" iti>sutS' 1
ce Ilamt^i, ot |
;„/ IM V.
,,'/-.r,v,
S. I'.C.t.
35 V. 4
|i 11(111 a \^.\
, ill fiiV'Oitl
|nt tlitTtJiil
1 pri'si'iiteli'l
I fiillii«iiii''l
L iintliepiitl
h. B. m
lie liy I'M f'l
luiu'liitwlk
tllfWii
|ir ,'iilk»l
statDil 1
liuiltliitli
jits W«
Ihich 1. 1
Ion resp
Witi
ail'
ri'f
.otiiifiirniatiim as to hi.s jthiee of resitU'iieo
Hill that at h'ast apphoatioii shouhl liave t)een
umili'iit the plaees to wliieh ( '. was said to havo
„„iie; that line ililigeiiee had not lieeii used
I, (li'si'dver his residence ; mid that thi^ phiiii-
tiffjeoiilil not recover. And senilde, that the
miestiiin of dihgencc is not wholly a (luestioii for
the jury, linnnic it al. v. /iiml/oii, '.) (). H. (i4.
I even though the promise lie made after tiie action
1 hrought and after issue joined. McCminiffc v.
I Alla'i, () (l H. .S77.
A., the endorsee, sues 15. the endorser, alleging
that iij'li f the note heianie due, to wit, &e., H.
emlorscd to A. There was no averment of pre-
sciitiiieiit or of notice. 11 pleaded that he <liil
not endorse as alleged : Held, that under this
tlirtii, ami wliii'h the i
that all ii"tfs delivered to them for collection
shimU he wholly at the risk of the iiersoiis leav
ill,, them, and that they (the defendants) would
1,,.'" rosiiniisil'le only for moneys actiiidly re-
ctivcil in payment of snch notes, hut not for any
omissions, iiifornialities or mistakes, in res])ect
(if such notes. liroiriir <■/ ill. v. (loiiimcn'hil
B„k/, lOQ. H. I2!t.
The law of Lower f'anada is the same as the
law here and in Kiiglaml, that as lietween the
hdltler ami eiidiir.sers a note must he presented,
gii as to hind thcni. on the day the statute makes
it mynlile, and at the iilace where it is pavihUt ;
. hut. as hetwecii holder and m.akov, it is enougli
toweseiit it any time within the pciioil (ixed l>y
I the Statute of Limitations, and hefori; action.
' }hUhm V. McLillmi, 17 C V. WX
ill this case, hi'twecn holder and maker, the
timti' was ni.ide in Upper Canada, ]i:iy.vl>le at
1 tin lUiik of Montreal, in Montreal, and w.is not
lp>eute(l until live years after ni.atnrity, though
I btUire action :— Held, sullieient. Ih.
till" had heen iionsuiteil for not proving the
i time of endorsement, the nonsuit must bo set
i aside. 'I'lic court, however, in such a case, may
grant a new trial without costs, and then allow
jilaintiir to amend. J)iirisv. Diniii, CtQ. B. 327.
.Assumpsit against maker and cmloi-ser of a
note. The lirst eimnt alleged that the maker
hail ahsciuided, and was alisent from Canada
when the note fell duo. The secoml uount
averred as an excuse for presentment the absence
of the maker and the plaintills' inability to find
him. I'leas to lirst count, 1. That the note was
not duly presented for payment ; 2. That it was
not duly iircscnted at the maker's last jilace of
abode. To second count, that the maker's last
place of abode was well known to plaintiti's when
tlio note fell due : -Held, iileas bad. Foriniiril
I't III. v. Tli<i,iij>.^,i,i, \-2ii. K 1!)4.
Immediately licfore the note fell due, the payee,
i and lirst endorser wrote to the plaintiff reiiuusting
' him to waive protest, and agreeing to liohl him-
I self liable just as if the note had heen presented :
I Meld, that though tlie endorser was prechuled
by this from setting up want of presentment,
I the makiu' was not. Mrl.illnn v. MvLellau,
17 U. P. 109.
2. Alli'dnthii iviil PfDof.
Vif'fHr hWiim:] — Where a note w.is made
Oflii'r C'asp.s,] — In an action on a note, the
declaration must aver ])reseiitment where it is
payable. Fi'rric v. Jh/kiiinii, I)ra. (H.
.\ii avernient that the note was " duly pre-
sented" for payment to the m;ikcr, without
Mclnr I'l specially stating either time or place, is sufficient
'to charge an endorser, limik nf V. ('. v. I'lir-
.<«/(.< (■/ ((/., ;t (}. n. .'IS.S ; ('iiiiniiirviiil liituk x.
('iiminni, 3 (.). B. IWA.
■ .Semble, that even for the jiurposc of evidence,
it is not necess.ary, in order to charge the en-
dorser, since our statute 7 Will. 1\'. c. ."), to
Bunk
of U. v. V. I'arnonxi'f oL, ;{ Q. 1>,. 883.
l''ndorsecssue defendants sep, itely as payees
and endorsers of a note jiayable at a particular
place. The declaration avers ;\ joint endorsement
by the defendants, and a due presentment, "of
all which defendant had notice, ' and the liability
of the ilifiiiiliiiit. Demurrer, because a joiiit
liability with another emhirser is shewn ou the
iTiere a joint note was made payable at a par- j face of the declaration, and no excuse alleged for
ilar place, anil it w.as not shewn that it was ; omitting him; and iiecause dni' notice is not
alleged : -Held, deelaratiini good upon the Hrst,
but bad ou the second ground. ('oiiimerniil
Hunk v. i'uiiii-ron ; Vommercial Bank v. C'ulocr,
3 Q. B. 363.
Ipivalilc at a particul.ar place, althougli no aver-
Ijiiiit (if its liL'iiiL; presented there for p.-iyment
llliptarcd npon the record, the court, after verdict
lor the iilaiiitiff, and proof at the trial of a sul
Hiueiit inoinise, refused a nonsuit. Mr/n r i
'. V, McFdrliiiii', Tay. 1 13.
'Vlierc ilefendmt, an absconding debtor, on
tc iliy a niite hecanie due, wrote to ]daintill's
latiiighis iiial)ility to p.ay, and rei|Uestiiig fur-
Jertimc: Held, to render iiresentmeiit tinnc
iswv, although the note was payjdile at a , ^ ^ ^ ,, ,. ,
■tic'iilarijlace. MrDwuiill it ul. v. Loim,, 3 «l>.i'W presentment at the particular idace
', 8. m.
|Ani)tciinist be presented, although the maker
I iin fiinils at the particular place, hvi as be-
ifeenthe iwyce and maker i)resentiiieiit there
I any time before .actio.i will Ik; snlKcient, if
! were no funds at the day. lli'nn/ rl ul. v.
|oi)"W(//.,}I. T. 3Vict.
icntcil tliere when due, but one of the makei's i
lerwards proiniaed to j>ay it : — Held, sufficient '
llence of presentment to go to tlie jury. Mu-
' ley V. ilcFarhne, T. T. 3 & 4 Vict.
-Mi-- r
-, ?
" 'j
11:5:
i; 1
lilt
m
"^■p
l1 '
495
BILLS OF EXCJrANGE AND PROMISSORY NOTES.
i%
r 1 '
H .'
!Ji
'i!
.., -,1
VVlicro (V iKito in madt! payiililo by A. H. at a
J>aiik, a plea (h^iiviii^ ))i'cs(iitiii('iit tn A. II. in
good. Unii/ciif i'. ('. V. S/ii ririioi/, g Q. |{. III!.
In asHiini|mit by undorsf'tiH of a iiotu against
till! liiakiT, di'lDiidaiit jiluadfil that tluMiidy i -
sidi'ratiim for tliu note wuh a Mil drawn 1)V'I. 1 1.
& Sons on one K. S. iji liacii|i, l,anca«liiic, I'ji,:.;-
lanil, payaliluin Lonilon, wliic.h l>ill .1. II. A;. Sumh
knuw they had noriglit to draw, hut ini|ii).sfd on ,
(lufend.'iiit ; and that the ]ilaiiitill's took the note ■
with full knowlfdgu of tiu' lacts ; and tiiat tint
bill was duly prusoiiti'd to I!. S. , who refused to
accept, and was duly protested for non-a'i'ep-
tancc. At the trial, to prove tlie presentment,
It. S., defendant put in a jirotest wliieh set
out the hill and a letter from the son of I!. .S.,
stating that his father was disap]iointed in not
receiving funds from .1. H. it Sons, in eonse-
Hucnce of whieh he deelined to aeeept. The
notary stated in tiiis protest, that I!, ll. S; Co.,
producing the hill, together with a eertain origi-
nal letter of whieh a copy was given, ri.i|uested
him to protest the .said hill for nou-ai'ee|itanee,
declaring that they had forwarded the said hill
toll. S., Ksq., liaeup, Lancashire, upon whom it
waa drawn, hut hail received it haek unaccepted
as by said co]iy of letter appeared, wherelore,
Ac, signed and sealed hy the notary ; Held,
that the presentment was notsulliciently |iroved.
Goddir/idiii <■/ (ll. V. Jfiilr/iiKiiii, (! ( '. I'. ■-'.'} I.
Held, that a note made payable at the resi-
dence of It., at Strathroy, "oidy and not otiier-
wise or elsewhere," ili<l not reipiire any speei.al
form of presentment, it being provcil to have
been on the day it matured at that place w ith I).
Ilarrit <■! <il. v. I'm-ii, 8 (.'. I'. 407.
See Dr'nuit v. Waiti; « (». S. :JI0, p. 496.
3. OIIki- ('(Uih. j
Where a bill is maile jiayable at a particular ,
place iu a foreign country, and there is no evi-
dence of presentment there, nor of the law of
that country on the sul)ject, the necessity for
presentment nnist be determined bv our law.
Ihifftth Jiniik V. Tnixfiitt et a/., .M. 'l'.'-_' Vict.
12 Vict. c. 'i'J, as to j)rescntmeMt of notes, doiw
not apjdy to Upper ( "anada. Hiilmil v. Miin iiimi,
7 Q. B. 3").
Semble, that recovery should not be allowed
in a Division (Vmrt against an endorser of a
note without proving either presentment or
notice. Si<liliillv. <lili:«ni, 17 Q. B. i>8.
VII. I'ltoTKsr,
Semble, a seal is not necessary to a protest.
Cluldie V. Mdjinl/, 1 (,). B. 4'.'4.
A protest without seal is admissible as evi-
dence of the facts therein contained, umler IU
& 14 Viet. c. '23, s. (i. J{ii.-<>i,/l v. Cro/'/on, 1 C.
P. 428.
The certificate of a notary on the adjoining
half sheet of the protest, that he had served on
the endorser a notice of non-payment, is suHi-
cient evidence of such notice. //*.
Such certificate endorsed on the protest in-
stead of being written on the foot of orend)odied
in it, suttieiently complies with 7 Vict. c. 4.
Lyman v. BouUon, 8 Q. B. 323.
The annexing of a cony of the nutc t„ [\,
protest, or atlixing it to tlie notariid ait, is n\\t\;
cient. //(.
A note made in l^pper (."anada pay.iU,. ,(
Montreal, is an inland note, beiiii,' in ctfti-
abh' gener.illy under 7 NVill. I V. i, .^^ ;„|,j
le iiriijierly jirotest.'d the day afttt tljt
pay
miv
third day of graci
(). 44-.'.
7 N'iet. c. 4, H
/inii/liiin/ v. hf(jlr
ucit.iry prima f.ieic evidence of the pintest ; aii<l
». ,'{ makes the protist iirima farii' (;viil(;ii(t „|
presentment, (.'nil'/ v. Liii'ik, H i). ]\, -j^o
.See (liiiiilirhiiin v. /f'tlfliisnii, (i ('. p. •2i\] ^
49")! Siiirliiir V. Chiiliolni, .5 1'. I!. -Jjo, Ji, -yl^
See VIII. .'», p. rm.
Nil I. N'oTicK OK DrsrioNoiit.
I. Xmsn'ifi/ I'm;
Where defendant hail guaranteiil eert.aiii .i.|.
vanccs of goods and money, to lie iinulf in i
by the pl.iintitl', and the plaiutilT tunk tln'in.ii ,ii
A., payalileat a partie\dar place, Nn' tlieaiiiniiiit:
Held, that lu- I'ould maintain no aitimi aijaiiut j
defiiidtint without proving pri si-iitineiit tlnrc,
and notice of non-payment to tlie ilufendant
/>ri;l!l-< v. ICikV'', (> < ». S. ,'{10.
I)i4"endant ('. had drawn on one S. ('. in [Juj.
land, who had no ett'ects, and did imt acriiii,
and the bill w.as protested fur neii-iiiTi'iitawl
and non-payment. Hefendant H. was aiU'inlurstr I
for v.. 'a aecommod.itiou. Notiee.s nf niinaivfj). I
tanee and non-payment were didy j,'ivi.n ti- tie I
drawer, liut of non-)iayini'nt oidy tutlic I'liirsir
B. : -Held, that 15. was discharged hy the want I
of notice of non-acceptance, and that tlic l;uH
of there having been no elleets in tiii' liaiuli »i
the ilrawee, and of H. having emlnrscil fur
aeennimodiition, made nodill'erenee. <wrrBml\
v. fnii<i rf <il.,1 V. v. .S44.
The defendant owing the jilaintitl', liilivtM 1
to him a note fori^HK*, made by unclulni \W,«^
p.iyable to defendant or bearer, on tlic lucki)/)
whieh defendant signed the liillowinj; guarante; j
" In considei'ation of the sum oi nm: liiiiiiWJ
dollars, I guarantee the payment nl tlic witliil j
note:" Held, that the guarantee was siifcieiill
within the 4th sec. of tiie Statute nl Frjmii;
for although no promise ^^as n mini in it.mj
the leference to "the within initc," niaile itij
promise enuring to the benetit of the lifi«.J
Scndde, that the guar.antce created an alis^litij
promise to pay in all events, ami tliatiifMiiall
was not entitled to notice nf ili-iiuii(iur:l5tj
there wa.s no ]ilea raising this i|nestiiiii. ifm.\
whether defendant could be treatcil asaj^j
maker. I'almir v. lUihi; 23 V. \\ SOi.
See <lnl,lt,- v. Majinll, 1 (,). H. 4:'.\ ji. JOj
Grunt v. WuinldHby, 21 C. P. li,")7, \i m
2. Form niid Siijltrtnirii nf.
A notice that a foreign bill lias lit'cn retni
protested, is a sufficient notice of noii-aa'fjiUi
without sending a coj)y of the pniti'st witlili
notice. OWril v. Pcrrln, .M. T. ;i Vict.
A notice to the endorser must, oitlierinestn
terms or by necessary intendment, shewtlatl
m
BILLS OF EXCHANGE AND PROMFSSOllY NOTES.
Iici'ii pruiii'iituil for {Miyinuiit, and that
■n r
M. T. .". Vict
497
,«,yim'iit liii". iKi'ii ri'tiiHud. Hn,ik .,/ ('.('.
498
V, Sinri,
Where a note i» l«:i,val.l
!«'
IK
H
til mill uililiil'Hril liy
voriii l"'!''"""' ""* l''i''ti>ci-M, nntii'i! tn <ini' i«
,tia. tn all. /'""^' "J Mi<'l'i!l">i V. '•''■".'/. 1 <>».
Itiii MI'S
Jott willi tl
IVkt.
W/.'i
Till; fiilliiwing notice hcM insnlHoifnt, the
„t,.|iiivinK '"'''" ''"'^"'''*'''' tiy ik'fi'iiil.'int in iiis
"wniiaim mily. iiltliim>.'ii iii' wumoiic ol tlir tirin :
•'Miitsrs. I'. M- 'iiovor it Cii. (ii'iitloiuon : -
T.ike iiiitiLi' tli;it till' priiiiiissKry iioU'," \f., "nn
uhitli villi •"'' riiiliiiHi''''*. 'Ill'' t'li.-* liny, I'l'iniiiiiw
iiniiaiii Tliin I'li'i' tln' InililtiM iiiiii; tn ymi lur
i,-.niuiit tluri'of an huoIi I'lulnrserM. " Himi- „/
.l/;,«/,ni/ V. <li-ni;i; .\(i. I!. ^-.
IV folliiwiiii,' tii'lil xntticii'iit, tlio iinte liiiiij,'
,,iv;ililf:it till' liaiik : -'Sir : TIk- mite of A. 15.
i.rtJO, at iiiiu'ty ilays from tlu' ■-•Otli .liinuary,
i^4l\,i'iil„rMMl liy yim .iiiil iliic tliin day, roniiiiis
uiDiii'l. Villi mi' tluii'iiforu hiTL'liy notilii'd tliat
thiliMiii liiiiksto you fur iiayinetit." lianko/ C.
Wli.it is a sntlii'icnt iioticu of di^^llllllllnr. whoii
Ihr Iiutsi lire iiiidisliutoil, is a iiufstiou of law.
l,vh<fr.(: v. Smith, 4 i). J5. -m.
Hi'lil, that the following notiec of noii-jiay-
Btiif.-"Liiiiiliiii, Niiveinlior •_'•-', I.S4(i. Sir,—
Iht liiiimi.ssi)ry note of IVter Bov.oii for twenty
jouiiiis, attline nioiith.H friiin tlii' littli of August,
IKk; 1,11 vthieli you arc cndor.scr, is <l)if this ilmj,
hi. 1 tlicivfnrc give yon notice that as the
[iriif tliemiiil note I look to you for iiayinciit
icmil. W. li." given liy the eiulnivscc to tlie
,i«r, wai sutlicient, without Htating tliat
unto hill liecii iircHcntcil for jiaynicnt, the
It.- I'i'in:; liiWalih- at the jdaintilV's otiiee in
uluii; Hi'M. also, that the notice licing
It, 1 Mil Siiiiilay the note falling due on the
ituplay, ami the notice lieing delivered on the
ioiiliy,— was no olijeetion. /iliiiii v. Dijnti, '^
SO.
k ii"tiee to an emlnrscr stated that the note
is'liilyiirutestecl for non-iiaynient, not saying
at It \\\w iireseiited :— Held, sutlicient. lihtiii
r, o';„;hi;./, !l (i. li. -473.
An-itieeof non-jiaynient received by defend-
tiit.' lirst of four endorsers, stated the date
imrtifs correctly, hut desorilied it as for
, iusteail of fi'.'i. 1 1 was shewn that after
iintiiv itufuiulaiit had iironiisod to jiay. The
will' ilincteil that the notice was insnlii-
t, mil that the suliseiiuent iiroinisc could
nail, iis it wa.s not averred in the declaration :
l.a'nisilireetiiin on hoth points. Thonif)-
y.iUhrrll, 11 Q. I?. 18").
htrt' the notice .stated the amount accu-
ly,lmt stated incorrectly the day when it lie-
leiluei— Held, sutiicient, defendant not having
niisleil. Thom v. Sand/unl, G C 1'. 402.
kre a note was pro]ierly presented and pro-
1. Imt the notice being dated '20tb Novem-
statiil the note to have been on that day
iiteil anil protested, whereas in fact it was
le lllth ;— Hclil, not sutlicient to mislead the
irscr, who was therefore not released. Luw
»-%12C. P. 101.
ke following notice held sufficient :■— "Strath-
[13th of Oetober, 1867. John Ham Perry,
32
Km<|., Whitliy, ('. \V. Sir, — A certain note for
C.ViO, and intcri'st, given on the lOtli d.'iy of
.April 1,'ist, in lavoiir of .lolin llain I'erry, ami
endorsed liy ymi, and signed H, V. I'erry, in
favour of llirain hell, of .Strathroy, fell due on
lO'l.'Uh instaiit ; ymi will, in conseiiiieiiieiif non-
payineut, lie held rcsiinnsilile for all costs or
daniage.s for lion iiavincnt." /Idrrisy. /'irri/, 8
('. P. I(»7.
A note fell due on the iVitli .Inly, on which
day, as the i videiice shewed at the trial, it was
duly iireMciiti'd and iinitested for non-payment.
The notice, d.itrd the iKitli, stated that the note
was ihis ilii/i presented and protested ; Held,
that the mistake did not discharge the endorser,
\Cit.-,shl!i V. .\l,ii,si!,l<l,V. W .M. T. 1874. Not
[ yet reported.
post,
hand,
sooner.
although it
and might
A'.
lls.\(lll V.
.'<. Tliir (iiiil Miiiivvr of Oivin;/.
Tiiiii iij ijiriiiij. ] - It is sutlicient if the endorser
receive notice when he would have received it by
was .sent to him by private
have been delivered a day
07/,;////, II. T. 2 Vict.
A letter giving notice of the dishonour of a bill,
though from misdirection it has been delayed, is
nevertheless snliieiciit if, being posted sooner
than was necessary, it has in fact been received
within the period allowed by law. liitiik oj
llrllls/, y,>rth A 1,11 rim v. A'ci-s" I Q. 15. "lit'.).
Held, that a notice to the drawer from the
holder living in Illinois, through his agent living
in this priivince, of the bill being unpaid, by the
1 itter calling iijioii him witli the bill on the '24th
December, the bill having been presented in
.New ^'ol'k on tlic llttii November, could not be
consideri'd, under the facts of this ca.se given in
the rejiort, as laches on the part of the holder.
Il(il/t:i V. Jllsi jih, 7 l»*. H. ."lOt'i.
I'laintift' and defendant resided about three
miles apart ; the mail ran between both places,
iind closed where plaintitl' resided on Monday,
Wednesday, and I'riday in each week ; the bill
was presented for payment on Monday the 4th,
being the last day of grace, and not paid ; there
being no mail on the oth, notice was served on
defendant by a sjiccial messenger on the (ith, be-
fore it could have reached him had it been mailed
on that day : Held, in good time. Chapman v.
liishui, W ('(/., 1 C. V. 4:52.
Notice of non-jiaynient mailed in the proper
post otlice between eight and nine in the evennig
of the day after jirotest : — Held, snfticient,
though the post mark nimn it was of the follow-
ing day. Wilson v. PritKjh', 14 Q. K. 230.
A note was presented for payment on the J)th
of March, at ()., where the endorser lived, and
the notice was mailed on the following divy at
M., a village live miles distant, but not received
at Vx. until the 1.3th : — Held, sufficient. Taylor
V. Grier, 17 Q. B. 222.
Mnnnfr of ulrinij.] — A notice deposited in the
post-otlico of the city of Toronto, for any endor-
ser residing there, is as good as if left at his resi-
dence. Cummircinl Bank v. Eccli's, 4 Q. B. 336.
Delivering imtice to an endorser by leaving it
with an (uit-door servant cutting fire-wood, not
known and proved to have been an inmate in
.^
)■■ ',
ri
■it'
iW
BILLS OF KXOirAN(}E AND TUOMISSORY NOTES.
Oit,
r
ii
■ i
I*
tlio fiiinily, Ih iiiNiitliciiiiit. It will )»• ii iiucHtion, {
liovvuvrr, fill' till' iur.v, wlutlit r tln' niilim'i|in'iit i
uiiiiiliict 111' till' criiliirHrr mIu'Wh him tn li;ivi' re- I
I'civfil till' niitii'i' ill iliii' tiiiii' ; ami ulii'ir tliry
tliiil fur the |ihiiiitill', tlmii^'li iiitlirr uj^aiiiHt tlu'
jmluvH I'liar^;!', Mir nnil't w ill imt Hi't iiMiili' tllf |
voriTii't if tlir I'liilin-jHi'i' till' nil iiHiilavit ilni iiij}
notice, ('(iiiniii rriiil Hunk v. Wilhr, ."> i}. H. ,i4.'i I
j
WliiTf a iiiitf piiyiilili' at a liaiik in Mciit tliiTc
for iMilli'ctiiiii, fliu iirntcMt ami mitii'r may |irii-
jierly III! ^ivcn liy tliclii. ir/7in» v. I'limili, 14-
n. I*r<)»f of.
Niitiri- of ili)tliiimiiir of \\ fnrrign lijn j,
pliivnl liy iiriiiliU'illK tlio proti'nt of thr |,|lj'^
wliirli till' notary I'l'itillt'H that hi; has yiv,.,, .il'
[lai'tii'H notii'i;. Hirintl v. t'liiiii-riiii, do s •41"
Tim <!ortitU'«t«! of n notary in l.owir ('ai,|^|
at tlm flint of tlio ]iriiti'Ht, that \w \,n,\ pm^
notiri' into till' |iii»t aililri'HMi'il to tliiMiii|(iri.|, '
Vict,
riicr,
■«.i
4, Wi'Dinj III' liiMiifjii'iiiil Aililfmn.
tiulil, that a nntiii' of miii-|iayiiiriit sriit to an
omlorHi'r throii^'li tlu' [inMt olliii', aililri'Mniil fo
liiiii ill " S'ork towiiNliiii, " in uhicli hr ri'sidoil,
was Miitlii'ii'iit. tlu'i'u lii'liii; no I'viiU'iiri' iw to
wht'thur thi'i'i' wan 0110 or imiro post otlicuN in
that townxliiii, nor any |ii'iiiif that a li'ttrr for
niiy otimr piTNon woiilil liavi' lii'i'ii iiHiially ail-
(IresHoil in a iliHrifiit inanni'i', or oii^'ht in thi'
coininon coiirMf to liavo liei'ii ilirt'cti'il to any
C( I'taiii post otlicL- in thf towiiMJiip, or in any
ot'iur townHhiji nuar liiiii. /{iinL-n/l . ('. v. /llnni;
RQ. H. til!>.
A noticeof noii-paynuintaililri'SHt'il intri'ly "to
the oxucutrix or executor of the late Mr. .loiics,
Toronto," is bail, /liiid- u/' Ii. S. A. v. .luiim, H
Q. B. 8().
In an action again.it tlieeveciitorHof aik'ccaseil
endorser of a note, it appcaroil that some of the
notices of ilishonour wcit .ulilresseiJ, " Ailinini.-i-
trator of William Stinsmi's estate, helli'villc,
Ont.," while others were similarly .■ulilressi'il,
"Canifton," the latter having,' lieeii testator's
place of resilience. It was proveil that the
notices were ])osteil in iliie time ; ami as to the
receipt of them, one of the executors stateil that
he hail receiveil two, one several weeks after the
maturity of the note, from testator's widow,
who got it at Canifton, the other from his eo exe-
cutor, liut whether a day or a fortnight after
the protest he could not say ; while his co-
executor stated that he had never received any
notice at all, Imt was shewn one liy the other iis
having been received by him : - Held, that the
reasonable inference to be drawn was, that the
notice had been received in due course. Mr-
Knizie V. Xorlhrup il ill., •2> (J. V. 383.
(r. R. endorsed a note in blank. His agent
being asked by plaintifl's agent where he, (I.
U., resided, gave an erroneous direction, which
plaintifl's agent wrote in pencil under the en-
dorser's name. Notice of non-payment s^ent to
such jilace — Held, suHieient. Vnniihitn v. Hum,
8 y. B. 50<).
A. proposed to give his note, endorsed by
defendant, in payment for goods, stating that
defendant lived at Lindsay, and hesubseijuently
transmitted such note to his creditor at Toronto :
— Held, that he must be considered ai? the agent
of the endorser : that his statement rendered
further en(|uiry unnecessary ; and therefore that
a notice mailed to Lindsay was sufficient : —
Held, also, that the above facts supported an
allegation of due notice. McMurrirk v. Poioem,
10 Q. B. 481.
Sec Bank of U. C. v. Smith, 3 Q. B. 358, p. 500.
eviileiiic of that fait under
Siiiiili V. //-(//, 3 ^). It. 31").
In an action on a note, dated ami inivnlil,, ^^
Ogileiisbiirg, in the State of New ^■(,|■|^, Hll i
that a jirotest of a notary of that utat" warn',
evidence of the facts therein statril ; nmHtatut
under which apiotest is made priiiiiifacj(M.vi(|,.ii,i
of tliii.se facts, only ajiplying to prntiMti. iiwiJiLv 1
notaries of I'pperaml Lower (laiiada, f,',,*,,;
JiiiUi.ii, !•_'('. {'. 4.30. •^ '
.Assumpsit on two notes against the iinlnrsnn I
I'lea by one defendant, " no notice .,| ii„,|.|,j,,
melit.' .A se)iarate protest of eatli iiiitt vii, 1
produced. One protest was dated 1111 the ilj,.
when the note fell due, and the otliir nn thclay
after. They both eertitied that the iiiilnrstJ
had been notilied, but did not state uIrh
Held, notice siillicielitly proved a.s to Imtli iintii I
WiiihI it III. V. Iliitl It 'ill., uq. I!. ;(44. '
Where a notary (who had protcstnl tlunotf I
sued upon) under a plea of no iKitice, .state! first I
that notice had been given, but ii|iiii: iciVrnn.
to his bonk of notarial entries, ainl liiiiliiiL; u,', I
notarials charged, stated that he lilt " rathtr I
staggered," as to his having sent the M,iti,v;_
Held, that the jury were wariaiitnl in limluu
for the def(;iidant. .Mrlhiiiijull \. \\'ui;lM,r!<
8('. I'. 4(K).
A foreign iiost-mark on a letti'r is iiriini f.nif |
evidence of tlie time when the letter wa.siiiajltii
</AVi7/ V. I'in-iii, M. T. 3 \iet.
In order to charge the endorser, thi' \w\,\a \
need not prove the notice to have been .ilwnlutely
received. 1 )ue diligence in ]iuttiiig a iettir into
the jiost-oirice, though the pust iiiisianv, ii j
sutlicient. Thou^di there is a post-nliiic ii'itli« ,
township in which the endorser resiilcs, tie '
holder need not direct his notice to tliatotliicif j
there be a nearer nttice in the adjiiiiiin<;tii\iii4p
to which the endorser's letters are jieiitriillv.«tiit
Hank if r. ('. V. Smith, 3 (}. I!. .'US.
Where the holder is suing tlie liiawei'iifalji
upon which there have l)eeii several iiitemitiiiiie j
endorsers, he need not in the first iii.staiiit shet I
notice from each endiirserto tlieotiiir Hitliiiitln j
regular period, but only to the detemlaiit. bp\
V. Jim'iih, 7 (I B. 5i-)0.
One of two endorsers, who at the tiiiieiif en- j
dorsing were iiartners, pleaded that lu'itlitrkej
nor his jiartner had due notice of iiim-|iaymfi:i:|
— Held, that the fact of the partner ef tlu'|«fij|
pleading having suffered jiidgnieiit liyiielaiilu
did not operate as an admission of niiticeul
agiiinst the defenilant pleading. l'rnpAv\
Mi-Kenzii' I't al., (i V. V. 308.
.See MeK,mie\. Xoflhn,,; l»2 ('. \\ ,■», 1
See next sub-head.
G. Wuirir of, or Excmefof.
Where no notice of dishonour was proved, l«ll
it was sworn that defendant, the emluner, Wl
501
BILLS OP EXOITANGE AND PROMISSOUY NOTKH.
m
'. , |^,j,i liii liail rt'i'dvi'il III! iidticu, tliu loiiri
,'i„«.iltci ili.ttiirli u vi'iilic't fcinli'tuiidaut. HmiL-
liiftdi'cl.ni'tioii ikj<uiimt thu (Irftwor <>f ii l>ill,
liotiic of ili.ilii'li'it"' """"t ''" livened, uiiil if to
XiUSf mirll iKitii'e Wllllt (if etlects* lie iivelieil,
itluUDt !»• slieWll tluit tliere were tin ell'eet.i fniiil
till' tiini) iif ilriiwiiig tlie hill ; iiml iintiee luUHt
ilmi W iiveireil wlieri; the (lefelidjint in mdy ii
i-Uiimlitce for till! hill, dnlilh \. M,i.,ir, I/, \'i).
11. 4'.''i.
Wliiiii'VtT tliu t'lidorMt'l' writuM to till) holder to
iiwkf liii" helievo it ii!iiieeL'M.siiry to ^'ive him
iidtia-iif iiniipaymeiit, e«|ieeially where he Htiites
(lii, iiiiiktr til lie iiiHolveiit, Miieli ii letter, thoiiL'h
wntti'ii hefdve till! note has matured, will Tie
tdiistrueil w a cliMiieiwatioii of liotieo. linhd v.
,„,„w/.4y. 11. i:w.
Tlic lirst ciiiiiit agniimt lui iidmiiiiHtrator stated
j|j;,t,li.|i!iiiliiiit'» intestate eiidorned a note (whieh
iranitet "lit, jiiyahle at a partieiilar plaee,) and
,li,.,| ln'fiire it heeame payahle. The eouiit
Bliiwiil ft '1'"^ pivHL'ntment, aijd averred that "at
tlu' time the Hiiid note heeame due, no letters of
liiiiiiiiiiitnitioii to the estate and ell'ects of the
iiitwUtii Iwd hoeii granted to any person, nor
I h;i'l wy piTsoii administered thereto." There
ncrviitiuriciiiiiti, and tliedeelaratioii eoneluded
I witli ail uveriiieiit that afterwards, ite. , "the
deft-'iiilaiit, as administrator as aforesaid, in eon-
lliiltnitioii"' the premises respectively, promised
I thi' iilaintiir to pay him the said severiil inoneys
l«iim|ia'8t"; - Hel<l, on demurrer, that assuminj;
ItttixcUjeforthe omission of notice to lie insulli-
Mtiit, (,iml somhle, that it was so,) the proinisu
Uigtd must ho taken to ho an express iiromise,
{wMsiippcirted hy a sutticient consideration.
Bmi'vi V. M(mh, 1 V. v. 4;J8.
Ilia similar case the count, after averring duo
'tntmuiit and non-payniont, eontinuod, "of
J which (hie iidtiee was given liy placing a notice
[ iiiiiil>aviiieiit ill the post olheo of the city of
l^oroiitii, (lieiiig tliu place mentioiiod in the said
■iiminsoryiKite, wheru thosamo was p.ayahle,) di-
H'tiiltd "the intestate "at Ilichuiond Hill, InMiig
iihioe where, heforc and until his death, he
Bulnl, ami lieiiig his last placo of rosidonce. "
omiit also shewed that adniinistratioii was
^ ;■ rwards ({ranted to the defendant, and stated
iKsiiiting legal liahility on defendant's jiart as
' ninistratiir, cimcluding with an averment that
ili'fiiulant, " in consideration thereof, then
IDiniseil the pliiintitfs to pay them the ninount
[tk aaiil note on reiiuest :" — Held, that even
I tilt; avcniieiits as to notice were insnllicient,
! lircimise liouiid defendant as administrator.
aiarks as tn notice ro(iui8ite in such cases.
'•»\H' V. Miiiyli, 1 ('. I'. 4.53.
[A priiinise to pay made after action is as avail-
He as if luiwle hefore. A conditional jironiise
I Ml eiuhirser to pay in land, or see that the
piititf shmild lose nothing, waives any ohjec-
T as to notice, lim-h v. Elliott, 15 Q. U. (JlO.
R here there has hcou a subseijuent uncoudi-
Ual promise to pay, with a knowledge of a
kult nn the part of the holder, the evidence
police is dispensed with ; and such promise
kiorts the aveniient in the declaration that
hotice of dishonour has been given. Bank
f -V. A. V. Ross, 1 Q. B. 199.
Where defendant, all oiidorHer, knowing that
notice had hot lieeii given, promised to pay :
Held, that the pluiiitiH was eiititlc(| to a verdict
on a plea denying notice. .Sciiilde, th.it it iw
only neeesssary to plead that notice was dis-
lieiiMed with, w lien all agreeincnl to tll.it ellect
liad liecii made lieliire the time for giving it.
j Sli.iir v. S,l/„in„, 111 (>t. II. M'2. See MrMiinUh
V. I'i,ir,i-i, 10 1,». \\. 4>SI.
I poll a plea denying notice of iinii-paynient,
it a|ipeare(l that tlie notice, though carelessly
I mailed hy the iintiiry on the day of protest to a
wrong mldres.s, had lieeii received liy the defeli-
[ dftlit alioilt a Week after, and there was some
[ slijj'ht proof of his having applied to the plain-
till for further time for payment. The jury
j were directed that the evideiici^ was insnllicient,
I hut they found for the plaintill' ; and the court,
I thiiilgli agreeing with the direction, refused to
I interfere. I.rilh v. ()'\,ill, HI i). \\. '1X\. Sou
I <;>iiiiiiii;-i'tl Itatik V. ir.7/, ;•, .". (,l. |». .\X\.
The pliintill's sued the drawer of a hill for
.'«<I,(MH), iipdii it and two notes, for .'«I,(HM) and
.S.'ilK) respectively. .No notice of dishonor of the
hill had lieeii given, lint the plaiiititt's' agent
swore that after it^ m.iturity, in conversations
with him respect iiiL,' the whole liahility, defen-
dant appeared willing to p.iy if time were given,
and sail! that if he and his lirotlier (the acceiitor)
got time it would lie all right. H(! s.iid, how-
ever, that this hill was never particularly men
tioiied, .'iiid no promise made relating to it
specilically : Held, not sullicieiit to warrant a
verdict for the plaintill's, and a now trial was
granted unless the ]ilaintitls would consent to a
stot processus on the count upon the hill, liniik
»/ Mnii/niit V. Sro/I, 24 (^. B. II.">.
In an action liy endorsee against endorser of a
note, an averment of ]irc.seiitiiient and notice is
supiiorted liy proof of a sulise(|Uent promise to
pay, although it a]ip(,'ars that there was in fact
no proper presentment or notice. .So held, in
accordance with Killiv ''. liochussoii, IH(". H. N.
S. 3.-)7. McCnilni v.' /'//<// w, 30 (^ H. .57.
1'lic plaintill' in this (;a.se having to shew an
agreement to waive presentment and notice, or
a jiromise to pay, the jury, n]i(iu the evidence
oHered, which is set out in the ca.so, tound for
defendant, and the court refused to interfere.
I{,<'d V. Mi-n-n; l(i C. 1'. •->79.
See Thiiiiiji'iiiii V. Cuiiiri II, 11 i). R. 185, p.
497; (l'>,r Hank v. Cniiij, 7 ('. V. .344, p. 490;
.Smith v. liurtim, 1 1 ('. V. 273, p. .5.50.
7. luMtruiiuntx Drnnut or Paijnhk in L. L'tiiKuht,
Where a bill is drawn and endorsed in Upper
C'anada, hut jiayable in l^ower Canada, the law
of Lower t'anada governs the time within which
notices may he sent. MatthiWKoii v. Cannnii, 1
(i. B. 259.
In an action on a note drawn and payable in
Lower Canada, the law of Lower Canada imist
govern as to the sutticieiicy of the notice of non-
payment. Vitji Hank v. Jjiji, 1 Q, B. 192.
The law of I-ower Canada, with respect to
giving notice, is to govern where the note is made
payable and prcsenteil there, though the endorser
reside in U. Canaila. Smith, v. Hall, 3 Q. B. 315.
i H
1
•. i : ;
; (
1
i ■ > '
\
I-'
11 1
503 BILLS OF EXCHANGE AND PROMISSORY NOTES
IX. ACCEITOR AND MaKEU.
<l(>)
A ilufuiiiliiiit I'imiiot ))u oliargL'il iiH an acceptor ,
of a l>ill that lias already lieeii acccjiteil, tli(Piif,'li
coiiilitiiiiially, liy the drawee ; ami to make liini
liatile for money received for tilt, jiayee's use, it
must be shewn that he did receive money which
lie could and ought to have applied hy paying
the acceptance. SjkiIiHiiijv. .l/cA'c.v, "iO. S. ().")ti.
When A. Ill vde a note payable to H. , or order,
and C. wrote his name on tlie hack, without B.'s
lirst endorsement : Held, tliat ( '. lould not he
considered as a new maker; and that tiie note
would not su])port a recovery against linn by li.
on the common counts. ,s7r. ;• v. Ailmiin. (!().
S. UO. See ]\'Ucwk.t v. Tiiiiiiii;/, 7 <i>. I>. •!7-. !
Where a note is payable to a tictitious payee, I
and not to his <n'deror bearer, a person receiving
it from a third ])arty for value e uiiiot declare
against the linker as on a note ]iavable to bearer.
Wi/liaiiisy. \,>.r„ii, 10 Q. H. -J.V.l" !
Tlio plaiiitirt' proceeding agaiint joint n.-iki'i's^
of a note, must [irove a ease against all. Sii'toH '
V. Mci'iibv it III., t^. IJ. 3'.)4. ■ j
Parties to notes are now held liable, coutr.uy
to the older cases, in the ruder on which tliey i
stand o;i the note ; and tlic last holder may so |
treat them, noi:withst -.iidiiig ,iiiy agreement .
among themsi'lves, and although some one of
the latter jiartics may be the person for whose
accommodation it was made, and who, therclore,
is ultimately lialde upon it ; ainl this even when
the holder is aware of the facts. A'AA /■ v. A'' //'/,
8 Q. B. '240. See /<nis„ii v. P.i.rt,„i, •_>:!('. 1'. 4:V.).
Mil
'r.siT.
I m.
Ix) sued jointly with the maker, uiiiler ;( Vir
e. 8. /{iiiiimIiI/ v. Tilj'iv vt <//., .") (,». p,. -^^^ ''
\. made his note jiuyable to I!, ,„• l^.^.,.
before delivery to !>., it. endorsed it; |{. ,«„J
both \. and !»., averring that A. iiiiiile'tlii.'i,i,t!^
(tc, and a delivery to !>., who bce.iine tlu' Ju
fill bearer thereof, who then, as siieii, iinlni
and delivered to H.; Held, that l>..tlieeuili
was lialile to H. as the holder of the note.
Iciiff'ii V. V II III him II, 7 ^i- H. I7ti.
.An endorser of a note not iiegiitialilf, i,r (
negotiable not (indorsed by payee, eaiiiidt I
sued as endorser by the payee. ' \V,.<i i- /;, , *
.S (,>. B. 'J'JO. ' "•
W. niado a note pay;vble to plaiiititl's, hut n,,*
negotiable, which defendants eiidoiseil. Itny
jiroved to have been given for iikiiuv leiittuU'
iiy the plaiiititl's in defendants' |ire>JiKv, aiiil',,
which they agreed to bccoine security ; tiiiit ,ii',e
of them had paid interest on it, and tliat lictji In,;
pi-oiiiiseil to pay the note, when .•^ikiIuh [,,
Held, that difendancs could not lie ii. 1.1 jj^iiifij I
upon a note, nor as on an aeccmiit stated. (J;i;tr,
whether plaintitl's could have recovered :
a guarantee.
O. 1!. 4.m
Skilln'i-k it al. v. /'.//■/, ,• ,/ „/ 1^
I >ufeiidaiit having eiuloraed in blank. :i<siir,;
I'or the maker, a note ji.iyable to plaintitl' i,''t i
liiit negotiable : -Held, that he was not li„!,|„j'
iiutker. Mr.]/i(n-iii/ v. Tnllint, .") ( '. |'. i;,;
Where the defeii<lant signed, as maker, a
printed form of a note, and handed it to A., by
whom it was Idled uji for ?<.s.")."), and t!ie plaintitl's
afterwanls became cndorsi'cs of it for value witli
out notice : Held, that thedefelidaut was liable,
though it might have been fiauiliileiitly or im-
properly tilled up or eiidor.scil. .l/i7//»( i v.
Milton, .SO (^ II. 48!). See SmiUinl v. Ilu^x
O. S. 104.
'2. DUcliitriji' iif.
Where the payee of a note endorsed tlif sibk |
to A. upon an usurious eoiisideratiim. nini \
afterwards faileil in an action against tlii' iiinktr
upon the gnuiiid of usury: Ibid, tii.it siul
jiayee might still recover" against the .Ir.iutr:
and, Semldc, that the ground ot tlie tailiiri,;n
the lovnier action, might be proved liy.inviw
son present at the trial ; and it wis iiot'iim,yrT
C I to prove a re-enilorsenieiit by the ii.siiivitu'lii
' liayte. lii'liri II v. Sliiiilnii, '{'-.ly. .'{(id.
Aeeommodation eii(h)r.sers, after the note on! A. m.ade his note payable to IL er i.iilir. «li.
which they were liable lia<l matured. Hied a bill . eiidorsc<l to defendants, and defend.nits tM|uiii-
against the Indder and maker to eiif(>rce pay- i '''."' ^^'''" •'^■'^'•■'''''' 'I' '•''^ ''''^-''-'''i'tioiiainvMiitiiniil 1
nientbj the latter, 'rhe relief pr.iycd was granted, of the note to H. in.stead of to A. 'I'lie iinti' ws |
and the maker Wiis ordered to p,iv thecosts both ] '"•"'i-' «i'l*^'I.V for the aecoiiini(Hlatii.ii uf tW,l,:,if
of the plain till' and of tlie liohfer of the note, j 'l''i"t». W'tliout any cmisideratieii te A.. t!» |
Viiiiiiiniiliiuii V. I.i/ilii; I.'It'liy. '>~^>.
K(|uitable defence, that one maker or aceeiitor
was surety for the other, ,ind w.is iele;is<il by
time given to the latter. See Xll. (i (e), p. ."•.">•_'.
iSee Pirri/ v. l.dirli ss, ', (), |>. ,"i|4, p. "il.'i ;
Hanncome v. Cotton, l(i Q. H. !t8, p. ."il".'.
X. DkAWKK A.N I) IvMioHsKH.
1. Noti' iiili/illilf III liiiil'ir, III' 111)1 Xiijiiliiilili ,
\. makes a note payable to B. or beaicr, and
delivers it to B. B. endorses to ('. The holder
sues IJ. on his endorsement : -ileld, that the
action would lie. /ii ulli v. Iliiri'ln;/ if ul,, (i ().
H. '2\'i; Srnlt it III. V. /)iiiiijIiia.-<, ."i (), S. '_»07.
See Slirf v. Ai'miii, (i (). S. 00; W'ilcoc/cs v.
Twniiii}, 7 *■). B. ;i7--'.
A party endorsing a note payable to A. or
bearer, uiay Me sued as eiulorser. lie may also
maker. The plaintill' eoni))idiiiisid with Awl
a ])ortioi> of the note, discluirviiig liiiii. aivUinl [
ing his iianie out of the noti\ Tlu' jiirviWj
a Verdict against defendants for fin- lialan.- "llkj
note: Hehl, vi'rdict right. Sii'lmi \. .iiiihrnl
it III., ."» t^t. B. .m">.
A. makes a note iiay.iblc toll, ernrilor:!!
endorses to ('., who endorses to |i. :li.,till
holder, lUes, leaving B. one of the i\riut.in.:&|
excentors of 1>. sue ('. : Htdd, that h. bir|
made B. his executor, B. was iliseliaii;rlM|
that there w.is no remedy against tlicMiiwiOdll
endorser, Jnikiiis v. MiKii:i', li i,'. I!. ■►!).
The holder of a note reerpvercil jiii.:
thereon against the makers and eiid"r*iTs. v
was duly registered so as to iTeate a luii m *|
real estate of the makers; siilisi'i|ik'lith IukT
cejited from the makers of the iiiiteaiiini|»-"
ot lifty per cent., ami diseharL'cd tlirir i:
from further liability, expressly ii'tjiiiiili; *J
right tu go agaiiiut their perHuiial umcId, wiIIi
.•I
1':
505
BILLS OF EXCHANGE AND PROMISSOI i NOTES.
")0(j
UN LT:ii"ti''l n'straiiiinj; further proicc.liii.-^ in
Lh acti.>n. Mollis!, V. <//•-,// <t ,./., .-, ( 'hy. (i:.:..
w
SUl'
The ai'ce;)taiict.' by a troilitor of part ni his
^l^.ii,.„„l njra'inst his tlfhtor. ami iigrii.iii« nut to
■lu. him, "with a
ht. .iirfiinst a surt'iy m hiu'h u
thori'fipre, thii
mill iiiako hiiu
/I'o.s, (I III. V.
•eetlcil t" oxecution against the goods of tlie Semlile, that a ilofendant's endorsement made
1'"^', ,,. .^ HfM, a disrliarge (if tlio I'lidnrscrs )>v liis wife, thoiiyh in her own name, luit after-
('" 1 further hahility ; and a iierpelual iiijimetiim wants rceu^iii/i'd liv ditVndaiit,
IP'"'"' , .„•:..:.... .• 1. :i:...., ;.. ij,^,,i^, j,, ,,„ ,,,,^j,,„- „„ tile l-ill.
C,,,/,/. 7 (,t. IS, M.
No action lies h]miii a hill cxeeiit auaiiist those
who are in suiiie sha[ie parties to it. Where,
therefore, A. drew up i; H. in his own favour,
and endorsed it to ('., who in her own name
endorsL'd to the iilaiiitilis • anil it ap]ieared that
('. was a lady residing in 'rmoiito, who had a
lirother, l>. , lesidiug in I'.uli.do, fur whom, though
reservation of tiie eieditur's
ht« iL'-iinst a surety of sueh delitor, will not
(lisduu-gf the surety. \N liere, theietore, the
hnlilirs of a liill reeeived from the aeeeptor a
. "miHisitieii of tlie delit, and exeeiited a deed to
tlitetl'ect hut expressly reserved their rights not a partner, or in any way transacting Imsi-
aiirt the drawer : -Heid, that tiic drawer wa.s "ess in his name, she had negotiated lulls at
iiiit iliicharged
WiiuU v. linlf, Ol'hy. 4,V-'.
of a note endorsed for the aeeoni-
niiHhitioii" "f tl'^' maker, having ol.taiiied jmlg-
nuiit ai'aiiist tlu' maker and endorser, released
[tlie iiialer, reserving all his right.s against the
eii<liirsiT:-Held, tli.it he was entitled to do so,
Lulmi^ht still enforce the judgment au.iinst the
jeiiilorser. Billy. Mminiii:!, II <'hy. 14'.'.
Diiclwrgc of, hy time given to make
tanks and \\ itli merchants : it was Held in an
action against !>., njion an avernujit "that A.
endorsed the said hill to one (.'., the agent of this
defiiidaiit, <ir her order, ami delivered it so
endorsed to her as such agiiit, and that tlie said
(.'. , then lieingthe agent of the defendant in that
lich lif authori/ed for and on liehall of the lUfend-
aiit, liicii 1 iiiloi>ei! and dcliveri'i 'i.e same to the
pl.iiintiUs ;" tiiat tiie action
>ee
111' iii'inr. »^
luitst»i«i-
] preM ntButi I
iniellMtfM 1
if thv iliin-
III \.. iIk I
with A i»t I
liii.;iivl»tri|
|lie iiirvLitl
.liUiK "ilkl
,nir.h-r;M
1". ; l'..»|
It I'. Iii^vj
lekuv.ilMil
. vlllw {Kill
It. iv '-It.
I'll jn'i.'.-
nr-lT*.'''
1 lull ">l '■'
liu-iitK In *\
thrir !if
|vt:llWll- *|
l>M.'t.-. at''''
,S. Olhi r ( 'n-» .v.
A not? intended .as the renew .d of another
|*)k. Iwt not so used, having hceii left in tiie
Hakir's '>'""1^ with an endorser's name upon it,
Itas IV' lived liy tile ]ilaintiir from thi maker f "
iliu lielua' it hceaiiie du
itliUi;iljk Litd-iit v. Wiiiril, .") (). 8. tilil.
Whori' .V. luailea note payalile to l>. or order,
►IC «iiite his uailie on the iiaek without
iirst eiiiliir.-ieiiunt : Held, that ('. could
Bt In' iiinsiileivd as a new malar, and th.it
I'ti' wiiulil not support a recovery against
!.v I'l. on the common eoniits. .SVm /• v.
i(/.|,.'., 6 0. S. tilt.
hVhrro the payee and I'lidorser of a note cu-
lt fur the the aeeoniiiioilation of tiie
ukr. liaviiig the date and sum lij.iiik, which
> .iltirwarils lilicd up hy tlu' maker, .ind the
•latnl iif a time later than the Mank was
iiM 1. liiit lirior to the time when the note
iiitually lilleil up: Held, that tlu note
:iii»l against the endorser, iiotw itiistand-
I the alteration. Siinl'inil \. y/iw.*, (i ( >. .'<. I(>4.
[Ikiiiihirser, like the drawerof a l>ill, is liable
hvlinhkr the inoiuciit the drawee has refused
Ulitaiicc. i'i'....< v. Dili,, 7 (.'. H. 414.
liio dull rser is estopped from clmying cither
■f the (Irawe
a not he sus-
taiiRil, n.'s i.ame not ai)peaiing upon the bill in
any sli.ipi. li'n^s it nl v. ( mlil, 7 'i'. K. 04.
A note made by .\., payable to P,., or order,
and endorsed by ( '. in blank, <Miinot iiedeclareii
upon by l>. as a note made by ( '. to him, the
plaintilV. ]\"ili'i>rk.< V. Tiiuiiinj, 7 Q. B. .'t7-.
l>eelaration, th.it S. & ]{., being indel)ted to
phiiiitills, on, Xc, by their note now overdue,
rile endorser was ]ir(uuised topay to theorderof the plaintill's l!l">0,
three months after date ; and for the better and
more ]ierl'e'-t sci iiiing and guaranteeing the pay-
ment thereof to the idaiiitills, </> /in nil the said
note to di'fcudant, who endorsed the sa?ne to the
pi lintitis, avi rring ineseiitmeiit, ('ishonour and
notice : Held, b.iu, as shewing no cause of
action. Mnfittl \. I 'us, l,i y. B. ,"cJ-_».
I'laintitl' declared on a note as made by K. to
N'. and endorse 1 by M. to defendant, who
endorsed to plaiiitill'. I'lea, that defendant did
not endorse to ].. intitl' as alleged. The name
of defendant a|ipear<d as endorser on the note
/ii/iin that of .M. : Hchl, however, that on the
idcidiiigs this was imniateri.il. for M.'s endorse-
ment tu il/fe>'dant was not denied, and his iiiuue
ajipiariii' before defendant's could not atl'eet the
nt
lit
re 'oveiy. liriijlitlij
Ii'iii kill, '2') ii.
* roivniolatioii endorsers, after the note mi
v'.'hi h ihey were lialde had inatnred, tiled a bill
i,iai'ist the holder and maker to enforce pay-
ment by the latter. 4'lie r^dief prayed was
iiijnatu,. f the drawer or her eoniiictenee, gi.a„t,.d: and the maker was ordeivd topav the
alcm. ,,>aTt m this ease,) to 'ln:W the j ,.,,.,ts both of tlie plaintilf and of the Indder of
laiiaition 'oy endorsee against maker and
^^^T, a verdict was found infa\our of the
jer. un the groi.ml that his name had been
i til the note w ithout authority, and .-igaiiist
miliii-ser ; and a new trial was gr.inted ,is to
■liiliirseiniily : Held, that the jury at sin h
jwire ngiitiy diiccted that tiie ii.se of the
'*[* name v.itiiinit authority was a fact
M t'T tiu'in to .onsider in connection with
the note. I'iiii"iiiii/iiiiii \. Li/sliy, 1,'H'liy, .")7
Wlic
.\1. .VcrioNs ON.
I. .1/ nihil 'I'illll'.
re one of several iiotis was not due until
near the end of the teriii in which process had
belli issued and returnable, but was due before
tiling the dcclara'ion, which was intituled geiie-
fviilonee utfered, to shew that the plaiiititl' rally of the term ; Held, that sueh note could
the imte with kiiuwiedge of the cireuin- not be recovered in tli'' action. Ki rr x. JniiiiiiifH,
Hiiiisr.inii v. Collnii, 10 Q. B. 1)8. M. T. 4 Viet.
ri. as tn how far an endorser is estopiKHl I lleclaratioii. that dc^feiidant on the !)th of
liiiiMiig the iiiiiker's signuture. J ti. | March niad.e his note payable to the plaiiititt's
'■''■'iL
;ia:|i
'Mm
m
• I
* t
I
(
b&r
BILLS OF EXCHANGIE AND rROMISSORY NOTES.
m
six months after date, which period liatl elapsed
before tliis suit. In the oiuiiineneeinent of tiie
dechvratioii tlie writ was stated to liave iieeii
issuetl on the lOtii of Septend)er : Held, on
demurrer, declaration l)a<l, for it appeared tliat
the action liad l«;eii eomnieneed l)efore the days
of grace h;<d expired. ///// v. Lul/, i:{ (,). H. 4(i:{.
An enchirsee of a note payal)le at a l)ank,
having taken it there on tiie last day of grace,
arrested defendant at live o'clock on tlie same
day : — Held, not too soon. Senddc. that umler
14 & IT) Viet. e. 94, s. I, he woultl liave tieen also
entitled to sue at any time after three <i'c|ock,
had the note l>een |iayable generallv. Siin'ldir v.
Jiobsoii, l(jti. H. I'll'.
'*. Jdiiutt r of PilVlli:s.
Where three >,f four partners declared on a
bill ivs endorsees, ■ nd averred an endorsement to
themselves "trailing under" tiic partncrshiji
name, and tiie i II was endorsed in lilank :
Held, that the noi-j.iintler of tiie other i)artner
Will not a grounil of non-suit. Amhrsoii it al.
V. Miirnnitiji, (i (>. ,S. ,");{7.
The .") Will. IV. c. I, iloes not apply to parties
signing notes as joint makers. Sij'loii v. MrCntn
I't.iL, (i Q. 15. .S!i4.
tiu-.yre, whether t,'. 8. U. (J. e. 4l>, ss. •.'.'{, 'JS,
authorizes the drawer of a bill to lie sued m the
same a'ition witli the executors of tlie testator.
Cuir.iiKirii:! ISnidy. Wiimlriijil nl.'lX i). H. (iO'J.
Where phiintitl", the iiolder ot a note made by
one defendant and en<lor.setl liy tlie otiu'r, sued
both in one action, under ('. S. V. ('. e. i'J, .s. 2.S,
and at tlie .same time declareil for money jiaid
and on account stated, the lattercouiits, on defen-
dant's ajmlicati on were struck out. /iii/iidiv. Sriilt
<liil., 'A V. l{. MH. V. L. I'hanib. .]'. 'Wilson.
The C. !S. IT. C. e. 42, which permits the holder
of a iioti' or bill to sue all jiarties liable upon it
in one action, does not atlect the rights and
liabilities of defendants as between themselves,
but leaves tlicni as if they hail been sued sepa-
rately. Uttiiii/fiiH V. /'/li/i/i.i. 7('hy. 4811.
See Kii-r v. Ilii'joril, 17 Q. H. I')8, y. ,"t48.
3. Fiiriii (iinl li'ii/iiixiti n iij Dvrliintl'ttiu.
(a) Xnmi's nnil Dcurrijiliini <;/' I'lifliin.
In declaring \:\)m\ a note made jiayable to and
endorsed by a lirm, it is nece.s.sary to aver that
the maker proniiseil to pay "to certain persons,
using the name and style of, "iVc, ;iiid then that
the said persons so using the name and style,
&.C., did by such name and style, itc, endorse.
Mojftiff v. Vifiir,, 7 i.). 15. 14'-»; r;/,/ li„uk- III'
Miintriiil V. KrrliK, 't {.}. \i. ."iOS ; (liiDilirlniiii v.
Uiirilin. Vlil W. .VJI.
Wherever, in pleading, one Christian name
shall be jjiven to a jiarty in full, w ith a caiiital
letter before or after it, besides the siirname, the
court will not assume that the jiarty so described
has anything more of a name thaii is given to
him, and this without distinction between
vowels and cousouants. liaiikuf I'/i/n r f\itiiii/ii
v. (Iii'jiiiiu, 1 (i. H. 140; Vuiiuiii niiil /liiid- V.
liohliii, .-) (i. H. 4i)8 ; /htiiijall v. I{,aji»rh, (l
B. ,301 ; Mail- v. Johi'<, 7 (l II. Vi'X
In averring the making or endorseiiunt nf
note it is sullicient to descriln; the partv liy tl'
initials of his Christian names, withdii't allien,'!
that the making or endorsement wa.s Ipv s,, i
initials. Awlnifx w TiiUmf, \',H}. U. i»j(^
(b) Ari mil lit nf fAahllttii ami Pi-uinUr,
The form given in 3 Vict. e. 8, must he ikImi,-
ted as to the liability of the .sevoial |i;irtit>'
liniik of r. ('. V. (I'li'i/iinr if III., 4(i. li. i^,-,
The iilaintiil's declare against drawer aud af.
ctijitors of a bill under i!100. The ;iiLc|)tipr.s.<n
as parties jointly lialile.' .An averiiniit tliattL
parties became jointly and severailv iiil,],.
Held, bad. //,. . -.
it 'is not necessaijy, after statin^,' tlie dfi'in
daiit's promise, to aver his legal lialiility tn pav
the bill or note to the plaintiti'. ArlnMri y |/:
/<iir.ii',l(i. B. I'.m
A payee or endorsee declaring iipiui ,i niu
against the maker, need not aver any exi.ro*
lu-onii.-- ■ in addition to that .set fortli as in the
note itself, nor any liability to pay. 117,; ,,,, ,
l\'oi,i/.^, .") {). I!. .-)7-'.
hcclaration against maker and endoi'ser iil a
note, under 'i N'lct. e. 8, .stating " wliereljy tk
defendants became lial)le," &c. : lleM, Itul i
special demurrer, in not alleging, aienrilin. ;„
the form in the act, a joint and seveial iiahiiit;
Xon/liiiiiii r V. (>' liiUlij it III., ti (,». I',. 4i;j.
In an action by endorsees against eiulnrsers,
the ileclaration need not aver that c!eluiilaiit,i
promised to |iay. //*. But .see .IMi/i ,/ 1|/ v
Liimnnl it III., 11 Q. B. !»8.
If the iiarty sued be the ex'cutor nf the en-
dorser, ami the note has become iliie alttr tkr
death of his testator, a promise tn pay luthe
executor must be stated, /{mil,- (fi' I'rili'd S'n^
Anil rii'ii V. Joins it iil., ~ {). B. itlti.
Avernieiit of liability Joint ami nvtri
makers ami i'n<lorsers Special deinnrrer K-
claration held sullicient. O'ilili v. Dhhmii 3
V. V. 4»7.
In an action against maker and enilnrscr "U
note it is unnecessary to aver a jniiit lialiilitv
Cliiiiniiiui V. JJiihrii/'i't III., •2\ (,>. li. •.'14.
See ('oiiiiui'feial Bank v. Vunu run, 'M\.l
3(i3, p. 41)4.
(e) Ofliir CiLiis.
A declaration on a note payable tn lioarer, \«A I
not aver that the note was " assigiitil dvtr'iii!
delivered to the plaintill'. hiniiiaii v. Iii'tkti,\
.")(>. S. 4()l.
\Vliere in an action ag.iinst the iiiaiieranii*!
dorser, under.') Will. IV. c. I, and .'i Viit. i U
the plaintill' declared in the furni ^'ivenlvtitl
later statute, but ilid not aver pre.^eiitiii':: l
notict! : Hehl, that tlie jilaiiititl «:ui niti:;i :
judgment against the maker, and tiitiW'<-|
ser to judgment against him. ,s'HM//y. /V;in|
it III., GO. S. 47(i.
l»eclarati(Ui against makers and eiiiliin-i'i^"fij
note under .'1 Vict. e. 8, witli no alki.'ati"ii''|
time to the endorsement: HoM, insufcii*r
Grant v. Eijix ,' al., '2 q. 11. 4i'G. v«l»l
BILLS OP EXCHANGE AND PROMISSORY NOTES.
510
v.. I/..
ni tlktn-
lllMiT K-
■vti, I) 'J. K
;(l (ivtr ' 111
V, H»''"'<^< I
j^iveiil'V'li'l
.■ntnifiit ni I
IsL'iititWl'l
tlin*i*|
|if/v. "••'"I
all. :.i" '
10. ^i***!
irdfticf V. lliiiili-i-Min, 7 tj. H. 88 ; /Iml!/ x.
I ••;< I'J 0. H. MO; HiMiiliflnnn v. (/iiri/in, I'J
'(i'."ii.H'ii'. '
Due iiiitict' must be averred. CmiimfvcUtl liaul-
Iiiiledariiig tin a ucito ilrivwn in a furoigr lan-
oiu-f it i't iii>t nocfSHary to declare in awh lan-
Inme' and where a foreign word is used, its
meamng ill Knt,''''*'' ""'>' ''^' '^^erred without any
i,itriiihict(iry statement. <<ilih v. Mori.-x //,; 4
The eiiiUirsec declares against the maker, " for
that the defeiitlaiit made liia note ami tliendty
iinnnisfd to pay H. or order tlie sum of two
hiimlrtil louis current money, meaning tliereby
•hisuiiiiif two hundred ]iounds of lawful money
ill' Caraila : -Held, on demurrer for unwarrant-
iilih- extending the meaning of tile word "iouis,"
tliat the (leclarali( .n was good. / //.
It is III! ground of demurrer that a declaraticui
uiion a hill >ir note does not conform to the
new rules, if it he otherwise g I in itself.
,4,;,,, V V. McKiiizU; 4 Q. H. 230.
\. makes a note, jiayalile to his own ord('r
R sues him as e^idorsee, claiming liy endorsement
of \. maili sulise(|uent to the note : Hehl, liad
(msincialdeinurrcr. linnrn v. Slum r, .")(,). B.d'il.
Averment that note didy iireseiited Held to
1 mean witiiin a reasniialile time, l/al/ v. Finiirlt,
Uc. !'. '-'10.
The ileclaratioii set out as indnitement certain
Ifa.ts Iv which (h'fiMidant, with < '. and Y., Itc-
Icamu lialile to , ■;, :.i .intill' tliO ; .md alleged
ltii,it ill cimsiiler. i hereof defendant hy an
jiD-tniiuent ill writing j.ioniised the iilaintitls to
hiT the same : Held, ou di'niurrcr. decla-
Iwiin p""l, for, I. It was in etlect a statement
Ittut iltfemlant made his note, and if .so, no
livirmiiit iif cuusidcratiou was reijuired ; and, "J.
■If ii"t a note, the consideration stated was
Imtiicient. Piirsiiiis V. ,1(1)11.1, l(! (,>. li. 274.
Ill :ui action on a note payable to iilaintili' or
Ibe.iM, linm;;lit m the name of the ].laintiH',
Imir tlie Itivisioii Courts .Act, s. I.")2, liy a
|pei>'iii whii liad obtained exei'Utiou against liini
Bthit cimrt. defeiidaiits jib^atlcd, anuuig other
llciis, that the iilaiiitilV was not the legal holder-.
|t iil'l'i'.ireil tiiat tlic note had been sei/iil by the
till the liiinds of one 'P., to whom the id.iin-
ii'l hanile<l it fur collection : IK'ld, that it
I'lt iiKhsiH'usabie that the declaration sliould
Jt« the suit til be liroiight inider the statute ;
lit '.hut ili'feiidaiits wen^ entitled to succeed on
H Ilka, fur tiie plaintill' was not in fact the
|l(kr, , mil to entitle the real jilaintill to shew
"iri^ht miller the statute to sue in the name of
(nii'uiiml [ilaiiitilf, the facts shmdd have been
^ially rejiiieil. It is safer in such actions to
(kr,iiiil inove a judgment to suitjiort the exe-
liiiii, iiut seuihle, that it is not essential. Me-
*>Ms. MlhmiM •! III., 21 i}. 1!. .">2.
4. I'I'd.l mill lirlllilHllhlll^.
i ri'|ihe,itioii to a ]ilea stating that a bill of
kaiige hail been taken "in full satisfaction
latalllmzanls" by the plaintill', that the bill
" ilisiiiiiiiiureil when due, is bad ou general
" "lir. (,'uWiV V. Ma.awll, 1 t^. B, 42,').
The rule making the jilea of non-assumpsit to
a bill or note bad, is coiitined to ca.ses where tlio
action is liihrnn /In imrliis In llif hill or noli' ;
it does not extend to executors, &e. Miiumdu v.
mil if III., .")(^. li. (•)(>.
The plaintitr sues the executors of the en-
dorsi^r of a note which had not become due till
after the decease of the testator, averring duo
notice to tile executors of dishonour, and theii
stating that by reason thereof they became liable
to jiay the note, and being so liable, they after-
wards, as executors, jiromised to pay on re(|Uest.
I'lea, 'M lo 111 iiiiir/i iif till ilirlni'iiHiiii ii.i iiIIi'ijim
lliiil f/ii 1/ jiriiini.iiil III jiiiii the plaintitl', &e., that
they did not promise, itc. : }leld, bad, as raising
an innnaterial issui', their promist! to jiay being
iiii/iliiil from the facts averred in the declaration,
anil not denied in the (ilea. //».
Deidaration, pajee against the maker of a note
for f.">0, dated 24tli beeeniber, 1844, jiayablo
three months after d.itc. I'lea, as to t'24 parcel,
I'iic., ;iceoril .-iiid .satisfaction, by defendant ae-
ccjiting an order on the IJtIi of March, 1847, in
favour of ,1. ('. S. as reipiireil by plaintili'; and
as to the residue, a set-otl : Held, plea bad ; I.
In leaving nn.-niswtred the plaintitl's claim for
damages for non-payment of the amount for
which the ordci- was given, during the two years
and more which had elapsed between the maturity
of the note ;ind the tii.ie of giving the order ;
and, 2. In not giving at length the Christian
names of .1. C. S., or stating that he was so
described in the order. I'lmi'i r v. Tiinnr, .'•Q.
H. .■).■).-).
I'lea, that in consideration of certain notes of
a certain party biing deposited with the plaintiff
as a security, the plaintili' agreed not to suo
upon this note until the others should become
due : Held, upon general deniuivtr, plea bad.
i l)iifiniil V. .Slin ii.snii, it (,). ]\. U.Sd. Sue, also,
/inini V. Iliinki, .") i). n. .')()8.
Declaration on a note for t'lOO, claiming il200
tlamages for non-payment. I'lea, as if to the
whole cause ot action, a defence a(!plicable to
the L'lOO, and not to the \i'im damages : Held,
bad. Cliiji/iy. .MiiiiliiJ, '> (). H. ")(),">.
\\ here in an action .against maker and the en-
dorsers, under the statute, the defences clash,
or the facts set up .are not ei|ually a defence to
,all the parties, tliey should ]ilcad si'[iarately ;
therefore, .i plea by all the defendants that there
was no consideration for the making of the note,
nor tor the respective endorsiincnts, nor either
of them, and that jilaintill' holds tlie note with-
out any lonsideratioii or value, is bad. lluirkv
V. Siili il III., W C. I'. !t7.
Traverse by lu.iker and endorser of die notice
as alleged in two counts on separate notes: —
Held, good on sjteeial demurrer, being distribu-
tive. TompHiiix v. Sroll, !» t^. H. lO.S.
To an action on a bill of exchange )>y a remote
endorsee, alleging the prior endorsements agaiiLst
the dr.nver and acceptor, the latter being under
terms to plead issuably, jileaded that he was in-
ilnced to accept by the fraud, covin, and misrep-
resentation of the drawer and endorsi rs, anil
without any consideration or value beiig given
to him for his acceptance, and that tiie last
endorser endorst'd to the jdaintill:. without any
consideration or value being given by the plain-
titl's to said endorser. The phuntiffs signed judg-
.511
BILLS OF EXCHANGE AND PROMISSORY NOTES.
■>\i
I *
ft'.-
raoiit, treating thu jiloa as not issuable, and on '- ])laintiff' noed not prove it in the fust in»tnn(t
npjilication in clmnilR'r.s, \vhii;li was sn])|iorte(l i Siitliirhtiiil v. J'littir.ian, M. T. (i Vii.t.
I)y an alliiiavit of merits, the jnilgmi'nt was set
aside for irn'gularity with costs, the learned ;
jndge holdini; tin.' plea to he issualile. The ]ilain- |
tilt' tlien moved to rexcind tiiis order. I he eoiirt
refused to interfere, ln^eaiise, as merits liad heen
sworn to in t'liandierit, it was ri^lit at all events
to relieve defendants from tlie judgment, and
the oldy cjnestion was therefore one of costs.
(^na're, whetlier the jilea was issiiahle or not.
Blink iif Mdiil rial \. ('itnn nm i( al., 17 ti'. 1.5.4'.)
To an action on a note, defendant pli aiU.|| o, ,
it was given on agreement l)y plamtill !■) pm „ '
M. a eei-t;iin sum, which he had imt iluiii. '
Held, th.it sneii defence was nut iliv isil,|e ..^
that as the note was not given wliullv dii sn.!
e(in>ideration the iilaintitl' nnist fail altdnuHi.
('<iriiiin(, 1 (). I). ■_'()(). '' '
Miitllii ii-Kiiii V
Where in an action
w.is proved
To disjilaee a defen(!e to a note hy shewing the
lex loi'i contractus as dillerent fnou the l.iw of
our C(uirts, such foreign 1 uv must lie leplied and
set out on the recoril. //o/k \: ('ulihfill, •_'! ('.
I'. '-Ml.
I'er Wilson, .1., the plea in this (tase, setting
ui> that the note sued (ui was given in t,>neliec
for services to lui rendered liy the levees as
attorni vs. was l>ad for not alleging that the note,
under the facts stated, was void l>y the l:\wof
Quelu'c, liy which the validitv of the note must
hedeeiiled. A'o'/. rMo„ v. ro/-/»v '/, 'M (». 15. Wl.
.">. Ki'iihiiri'.
(a) Ptinliirln.ii ()/' liistniiiK lit.
parol or secondary evidence can he
a note licing received liy the jdaintitf's
in satisfaidion of claim for work c1oim\ defendant ;
nnist prove notice to the ])laiu(i!r to produce the '
note. Iliiriii'ly. Mr/),,ii./ii//, ;{ (). S. ([47.
Where a note hail lieeu endorsed to an attor- 1
ncy's clerk in the eour.<e of liusinesis, ancl mis-
laid : — Helil, that second.iry evidence of it could ]
not he given, without calling the tlerk, although i
the attorney was called, and swoiii to his helief
i)f its loss, (t'riin v. Chirl.- ■! a/., ,") ( >. S. 'JOS.
it
hrou
lit it to
that
A., w
on u. note
li. endorse!
lo endorsed
Before
given <if
The plaintiir, in opening the ease, st.ateil that
the notes were left liy plaiiitilV with ilefeiidant
as security, and had liecn given up liy iiiin to the
makers iinpropiTly, heloic any demand on de-
fendant or refusal hy him to return them :
Helil, that no notice to defendant to jiroduce
was necessary; and !)r.ipev, .1., diss., -that
the plaintiir w.is entitled to lUdvo the eonteiits
of the notes without laying any found ition for
secondary evidence. Til/i/v. t'ls/m; ]()i^. H. '.\±
In an action on a note, where the making
the note is a Imilted, for iiu^t.iiue hy a ple.i
payment. <v>u;ere, whether
product! and tile tin' note In
(liet reconled. Mnfllinllnihl
323.— 0. ('. .Markeii/ii'.
Where to an .ution (Ui a note against the
makers, ilefendants pleaded fraud : Held, that
the note must he proved, and that, as defendants
had given no notice to |>ro.luce, and it was not
shewn lii it the iilaintiMs or their attorney ha<l
the note in court, the defenee couM not lie goiu-
into. Hmihiii
492.
if
lU'c hy a ple.i of
the 111 ijntill' must
ore h , :ng his \fr-
V. J/..,/.//, 7 I.. .1.
'^lyalili; tn A,,
it. and tv-j
. It luerflvt,.,
aei'ommoilation, never having received auvviln
for it ; -Held, that want of consideratinii i'('iiil,i
not, on these facts, he inferred, as lietwi'i'ii tli
maker and H., and that the iilaiiiiiti \v;w i,,,* i
oliliged to provt' the consideration I/,,;.
Mi-Liiiii, I (,». 15. 4.").').
l-'.ndorsee against maker and first and tliir.i I
endorsers of a note. The thin! eiidiirser ' t
jtidyment go liy default. Plea, hy niakir .vi.l I
lirst endorser, that the note was made aj„i|
eiidor.sed hy defendants, letting mit ciniini.
stances, owing to which, hrfore the iMtf waj
cndorseil to the jilaintitt, and hefuri' suit, tiif
defendant, hy agreement with I!. (1. and (i i;
(the iccond and third eiuhirseisi, made m,,]
. ndorsed, and delivered to them ainitlur imtt I
which was accepteil in full satisiaetion and'i,.
charge of the note sued upon, hut wliiuh Jte j
remained in the hands of the said I!. (I, ,ir,|
(>. (i. without the fault of the defendants «;i,.
anavermcntth.it there never was any v^ihiKr I
consideration for the cndorseiiieiit hv the m\ \
\\. (J. and (». (J. to the plaiiitill. I!i,ilii.;iti,in,
that the jilaiiititl' took the m.te ter a iiniiilanJ I
valid eiiiisid.r.atioii, .and hecaiiie and i« tie
holder ther^i.i in good f.iith : Meld, tliut niitliis
the introdin. Lory facts were admitted, ami tk
proof of eoiisuler.itioi! lay on tiie plaintitr. }lmi-
noil V. Arrolil nf., II t,t". H. 81.
Where the cmlorscr endorseil the imte vihilt
in lil.ink, tlier..' heiiig no maker'.-, name attioW
to it, nor i.n\ sum nor payee exjiresseil in it, aul
it appe.ired that the name oi the niakir wai i
ifterw.ards si,giied without autlmritv : -HfH
that the endoisi'e suing must shew Iniiiselii i
lioii;> tide holder i'nv value. Ilniixnimi' \- r,#j
I.-. (,). B. 4'.>.
In .an action hy endorsee .agaiii.'it nmkirabl
endorser, a verdict was found in favmu ui tit I
111 ..ker, on the grom.d that his name Imllw j
signed to tlie note without aiithnrity, and :i.iiibI J
the endor.Her ; ami a new tri.il was !,'rii'tnla5tiil
the endorser only : H-dd, tint t!:'- jdrviitsai j
trial were rightly directed tli.at tlie laitMftkJ
maker's name h.iviiig heen used witiiniit ,inti».I
rity was a f.aet materia! for them t" eniisiitr l (
enniicetion with other cvideliee eti'el'ed t" 'linl
tiiat tlie idiintii;' t<iok tlie note HitbkiiiwlBj
of the circumstances, //itii.tfiini' v. ('*«. ill
<V. 15. its.
I'ai'ol evidence is a.lniissihle tn ileiiv iji I
\li,Hlir,il\-. Sii!/il:r,f III., ISg. li. I rceeiiit of value lor a hill or note, Imtnett.riijl
I the eiigrtgenient to p.iy. /)iirUy. }IM>rni,'i§
I t^ 15. 4!H\
'I'd supjiort a plea that a note Hasgivwi
consideration of forhcarance to )innvi'ii lit
prosecution for felony, tlie p.irtic niar iiitw^
the chargi! sliouhl lie proved. Ihnnn. L'^H
1 1 y. li. •2m.
(li) l^riiiij Iff' i'liiiMhli luilion.
In an .action on a note, wliere defendant pleads
no consideration, upon which i.ssue is joined, the
defendant must impe.ach the consideration ; the
513
BILLS OF EXCHANGE AND PROMISSORY NOTES.
514
■..At
(o) Proof of PaiiHKiil.
In ftgsuiiipsit for goods Hold and delivered, the
,lt.feii(l'iiit I'ltwlcil that he iiuule his note to tile
iiliiintiffa for ji.irt, and paid tlie note wlien due ;
iiiiltiie i>laintiff8 replied, that when tlie note
Waiiii! tluu tiie defendant only paiil part, to wit,
OTin money, and gave an aeeeptanee on A. for
tlie residue, t.">0, wliieli was dishonoured when
,1m. of which due notice was given, eoneluding
witii a special traverse ; and the defendant re-
iterated tlic defence in the plea : Held, that he
ciiuitl nut on the trial shew that the plaintill's
hail niiiilc the €50 acceptance their own throii,L,'h
liohea, imt was hound to siiew actual jiaynicnt.
it.^ti'liil. V. M<-K'n,<l.<ii!i, I (I H. -Ml.
\Vliere A., the endorsee of a note, sued 15. the
Mvee, ami it ^vas proved l)y C, the maker, tliat
tiie note was made an item in the current account
l)ctween A. and C (the maker) ; that it was
liini; liefiirc cliarged to the maker as a deht due
l!v liiiii. i""' t''"'^ v.^im it was so charged the
kilance'was in the maker's favour : Held, that
tlic ■'■■t'-"iiiist lie taken to have heen paid liy the
maker, and ;liat it must lie so taken as soon as
gulisemient credits are admitted l>y A. sntlicient
til cover the note, though when the note was
chuL'ed the halance was not in ( '. 's (the maker's)
faviiur. Medillinvii v. K>tf,-r, 4 Q. H. M2.
\ Defendiuits made the note sued on. payalile to
p. ur hmni; for .'?.'U8 40, with interest at 1.")
wrceut, The note Wius made to i >. , anil delivered
to him iw reeve of the township, for money
loaiiud liy the latter, and was left Mitii ,S., the
triasurer, fur plaintill's. Suhseiiuently the <le-
feiiilaiit Moore gave his own note for .'<1'78, pay-
lUitiiS. (hut not to order) S., without authority
fnmi iiliiiiititl's, giving up to him the former, the
iilliivnce between the two notes heing a loan to
IR himself, timugh included in defendants' note.
S, having died, his accounts wi'li idaintiH's were
nljusted hy plaintill's with his surety, who was
chawd with tiie note sued (ui, which he arranged
ibv L'iviiij.' the note for S'J78 and his own note for
l^ll; ami a hidance of 81S;{ was, as agreed to
ibj- iilaiiitifl's, paid hy and a receipt therefor
^ 11 1" liiiii in full of plaintitl "s claim against S.
iltii- this settlement, plaintill's, liy a rcsolntion
IjB Miincil, ivcognized this note for .yJJS as
[m-wM tlieir existing securities, thus shewing
that tliey were aware of its having lieen received
-a'listitutiiin of the note sued on : - Held, that,
liiip' the who!" transaction together, there was
,hii ratiticiitiiiii ■! the acts of S. by plaiiitifis
till- siilisenuent adjusting of his at'couuts with
■uietv tiiiit, ciiiniled \\i'h the receipt of the
fiirS'.'78 witli I tliir notes and mone\ in full
jslactiiiii iif all claims on the note siu'd upon,
was ividence to go to the jury of ti.e payuu lit
' tills imte under ,t plea of payment. Held.
I, tliat the pliiihiilis could enforce payment of
iiiitc fur 8'J78 in the names of the represcnt-
i'i"< of S. Viirjhirnt'itm (if North h'tri/lii^i'iiirn
, }l<,ur<- ,t III., hU'. v. 44').
Plaintiff Imlding defendant's note, (ii<it iiego-
bIc) (layalile mi demand, for €500, in transao-
p witii line 1!., (a partner of defendant) gave
VH., taking in return his noti.' for l'l,00<), fur
I aiuliilhcr transactions. In dissolving part-
■lijii, it was arranged that this i;i,0(K), orii.ite
J.'s, should he paid liy the defendant. K.
Ilg sulisciiuently called upon for payment,
33
j ohtained defendant's ehe(|ne for t'SOO, and re-
turned defendant's original note for t'.TOO to
plaiiititl' ill |iayiiient of the note for £1,000.
, rpoii an action Ki-nught for the amount of tlie
note of C."i(M), defendant pleaded satisfaction
thereof hy tlii^ taking of It.'s note for £1,000 : —
' Held, th.it the facts did not amount to a pay-
ment, and that defendant was liable. Jioollt
: V. /.'»//<•(/, 8('. I'. 4(14.
• Action upon a note made by defendant pay-
i able to dill' M., and endorsed by M. id the plaiii-
titl'. Third ]ilea, tiiat the note was made for tlie
acconnnodiition of .M., and before suit was paid
by M. to the jilaintitl's. At the trial it aiijieared
that defendant made the note for .M.'s aeeomuio-
; datioii, of which tlie plaintiff's were aware, and
that there was an agreement between the plain-
till's and .M, to which defendant was not a party,
and by which, if on a tiiial settlement of accounts
tile plaintill's were indidited to ^^., such balance
should Ik' a(iplied lirst in liijuidation of this and
other notes, and, in the event of a loss, it was to
be borne pro rata by the several endorsers. It
also a[i|ieareil that there had been a settlement
between M. and the jdaintill's, signed by them,
by whicii .M. was found to be indebted in a large
sum ; but M. in his evidence stated that he had
not got credit in that balance for some of his
timber taken by plaintill's. Defendant offered
evidence to prove thatunderthe accounts between
-M. and the plaintill's there was a balance due to
I M., which, iiniler the agreement referred to,
f would shew this note to be paid by M. Per
; Morrison, .1. Such evidence was jiroperly re-
jected, and could not be given under the plea of
1 payment by M., but the ;igieeinent and facts
relied on should havt beirii pleaded specially.
I'er Wilson, .). T'hc cvidenee was admissible,
and it was coiiijietent to defendant to open up
^ the account between M. and the }ilaintiffa.
Rorli,- I'l III. v. A'- ;»/./, :V.i g. H. 387.
See yVi / V. K!ii;i.<iiull, 7 Q. li. .•lt>4, p. 489 ;
/(in-siiii V. Pd.itiiu, 'li C P. oOo, p. .')(i3.
(il) I'lirl'iis III ii.s \i"iliie.s.ii>.i.
The digests of cases relating to the competency
of parties to bills and notes as witnesses in suits
upon such iiistniineiits, are omitted, as by ,SM
\'ii t. e. Ill, (>., 1111 person is now excludeil from
giving evideiu I by reason of interest. The fol-
low iiig eases may be refericil to : Fi rri< v. Stork-
iniillur, Dra. 4l":{ ; hii //-// v. .l/-,«,/v , 3 (». S. 71 ;
J'/iiiiiiii/ V. Siiiifli, (i (). S. 4i)8 ; Jiniilliiirii v.
I.iiiii ij, M. T. .") Vict. ; Mil.ni'iii v. Mn'irhciul it
«/., :i il H. .V.I ; ./uri/<ni v. Swilh, 17 V. H. .51)0;
P<rl<!l\. /.n,,,;/,/ i,l.,\hi). H. 4-2!); (\,i.imirciul
liinik-\. CiirillhrdnL, IS (»>. H. ;178 ; Mi>ifuU\.
Il.,l„rlsn„, |o (). H. .((>! 1 K. k A. 4,"i!) ; jUhuii.''
V. Tiilinii/, IJ ('. P. 11!) : Honk of Muni rvdl \.
/,'ri/ii,il,/y, -.Ti (}. ]:. ,■(.■)•.'; .S/ioiiiion v. JMti/, 127
Q. H. 4.-i8.
T'lie effect of \'2 Viet. e. 70, commonly called
The iCvideiice .-\ct, was not to repeal .T Will. IV.
c. I. Where, therefore, the maker and endorser
of a note were sued togetiier in one action, and
each pleaded a jilea setting up want of con-
sideration for making and endorsing the note
respectively: I leld, that this did not preclude
the one defendant calling and examining his co-
defendant to prove the truth of such plea in
favour of the party so calling him. UoberUoHV,
r>\5
BILLS OF EXCHANGE AND PROMISSORY NOTES.
m
lil
W
Moirmi, 1 K. & A. 4r>9. See, alao, liaiik of U. V.
V. UjitoiKl (I I., IOC. P. 455.
(e) Other (Jokih.
In a.ssiiini)8it to recover tlie ninount of a note,
the (li'L'lanition contaiiicil tlie eoniiuoii money
uouiits only. .Iiidyineiit liavin;,' yoiiu liy default,
the plaiiitilf's, on assessing ilaniages, iiroved tliat
a copy of tlic note was attaclieil to tlie declara-
tion tiled, and to the ciipy sunt to the slieritl' to
be aerveil, witiiimt i)rovin!,' defendants' »i<,'na-
ture : -Held, sntliiMcnt under ") Will. IV. e. 1.
Sa.i:(»i it III. V. McFdrliiiir <l nl., 5 O. 8. 142.
In an action against the acee^itor, on an aver-
ment that it was directed to and accepted liy
him, it was lield no variani'c that tlie hill was
directed to and accej)ted liy a tirni in which the
defentlant was a jartner. St(ickiiuiilli< r it nl. v.
Am/nirs, (i (). S. l.S.").
The admissions of the holder of an overdue
note, are admissihle, without calling him, against
a person suing u[)on the note, to w Ikuii lie has
snbseiiuentlv transferred it. M>iiis v. ('tinull,
2 Q. B. 271)."^
Where the holder of ii note proceeds under ■">
Will. IV. c. I, he must prove at the trial that
copies of the note were annexeil to the declara-
tions Hied and served. JIii//i>r/i v. .\i>rluii, M.
T. 2 Vict.
"Where a note is declared on, an error in its
date when given in a liill of particulars, i.x imma-
terial, liiinii 11 v. Siiiiji'mii, t! < >. S. !!(>.
In an undefeniled action against an abscond-
ing (lel)tor (tlie maker of a note) the jilaintill's,
A., 1*. it A., proved the handwriting oi the de-
fendant, but coulil Hot shew tliat -1. W. I', k Co.,
the parties to whom the note was maile payable,
were the three plaintitls in the suit. A verdict
was taken subject to the oiiinioii of the court as
to this point : — Meld, that in tiie absence of
any cause shewn by tlefendant the del>t was
sutiieiently proved to satisfy tlie Ttli see. of the
Absconding l)el)tor's Act, 2 Will. 1\'. c. .').
Apjilrtoii I't III. v. Dwi/ir, 4 y. J5. 247.
The plaintill proceciling upon a note ag:'.'nst
several ilef ndant'^ as jdiiit eontr.ictors, charge-
able on the same contract and in the same cai>a-
eity, must prove a case against all of them.
Si/loii V. Mi-Cah, (/ <,/., () ().' H. ;{!»4.
Senible, that under tlie pleas in tliis case, gi\ en
in the report, tne eaneellation of the lirst note, by
the substitut'on of the second, could not be given
in evidence. CiiriUh r it rl. v. Frnxt i;'>i). |{. |, "■)•_'.
Defendant, sued as maker of a note by the en-
dorser, had before the endor.sement admitted his
making to tiie plaintill, and in<lueed the plaintill'
to take it : Held, that tlie siil)scribing witness
need not lie called, as defendant was estop[)ecl.
J'l'rri/ V. LiiirliK.i, ," (,), 15. ,">I4.
i^eclaration by the holiler of a note payable
to A. H. or licarer, against the maker I'lea,
that .A. H. and others in collnsion with him, ob-
tained //('' tintr ihfliiri-il upon by fraud, tku. : —
Held, that evidence was properly rejected.;
that the original note for wliich the note sued
upon had been substituted, had lieen fraudu-
lently obtained from the testator, (the executor
lli-
mm
lill
5!?
having given the note sued ujion), by a inrty
who had no connection with the note in ,iii,'
Doii'jiill V. Pmt, 5 Q. R. .5.^4. ■
Qua're, as to how far an endorser is fstoiMK.,]
from denying the maker's signature. //.(«„■,,,,'
V. C'utloii, 1(> (^ H. 98.
It is not necessary in an action on a nute due
and payable in the United .States, to prnvc' the
value of dollars and cents in the Status «,.
having a corresponding currency, and uii p.^.
value for the American currency lieing lixeiiw
law. (,'riffin v. Jm/.tim, 12 C. V. 4;i0.
The terms of a note cannot be varied hyiwrdl
agreement. J/iiriier v. PiitirKim, 14 C. 1\ -),•(>(
i l^efendant made a note p.ayable to T. er huiirtr
: who died before it matured. His widnw imj!
; ried one 1*., and they sohl the note tot;, wjii,
i transferred it to the plaintiff. One It. u,li',|j|
I tered to T. "s estate, and took proceed ingrtai,':
1'. and his wife to recover the assets. \
was tiled by defendant to restrain this aitinn
and in his answer the plaintill' sworu tli.it iil
consequence of the ditliculties with the ailtninij.
trator, he had returned the note to(i iiefui tiiis
i action : that he had no interest i.' it since ■m\
never authorized or heard of tins actiiin. Tlic
ldaintiH"h attorney swore, on the other side, that
l)oth the ]ilaintitr and <!. inscructud the suit
and the plaintill' had recogr.ized it, sayiiii; that
he was indemniHed by (.. The jni'y liaviii'
found for the plaintiff o>; a plea denyini; that \\t
was the lawful hol.ler, a new trial was itiu.*,l
in the CoupLy (.'ourt :— Hehl, 1. Atliniiinf; tk-
judgment ' jIow, that the plaintill" .s answer in
Chancery, thougli very strong evidence, M:«ii„t
conclusivi ; 2. Heversing such judgment, that
admissio/is by(i. were im|)roperly rejeeted, he
being, aceonling to the plaintill "s stateineiit, the
person on whose immediate behalf the aetiin
was brought ; 'X That upon the evidiiut tht
plaintiff should have been found to be the luphk
Ancona •. Marks. 7 H. & N. (JSO, distiiit-nished.
t'imti'x V. Ki'ltji, 27 y. B. 284.
^Vhefe sever.il persons severally liable on a
note oi- bill are jointly sued at Jaw hy the h"Htr
one of the defendants in the actidii at la«.
e:innot obtain discovery against the idaintilt it
law and the other defendants ; tlic ileleiiilaiiti
as between themselves not being litigatiiiunir
ties, but witnesses : a bill tileil for the iiiir|«'K
is demurrable. Iloniiltim v. /'/((y</«, 7 Cliy. lil
See (Iron- v. Clurke, 5 (>. S. 208, p. ,')ti4; .l/J*
V. (Hinr, 1 1 C. r. .S«3, p. 524.
G. Ainoinit /{irnnriihlr,
(a) /iilinnl.
Interest made payable by a note is |«rtoi'tli( i
ilebt, not merely damages for iletalniiig it
< •ri,ii.'<r V. Pari.; Hi). B. 458.
Interest is recoverable on a note at tiie nit
speciliecl in it till payment. /Inirlinnl v. .hmmii,
1 1 C. V. 272.
And the jury should be directed, iis aiMtMJ
of law, to allow such rate when aliowiiigmttMlf
in the nature of damages, from the iii.ituntvi^j
the note to the entry of judgment. .l/"«'f*"j|
V. [iouchiT, 14 C. V. 45.
all
111' llctM
■\W tilt
\k hiiMtr.
itiiiguisk'd
iulilf "II »
(■ li"i'iv:
iiluuitij .'.
I'k'iiilints
igiitnig \ti-
lie i)iiri«
Cliy. -tSo.
,')i)4;.l/i'i*
l«u-t"iili<
.■tilUllllf' It I
at the ntt
lv,./iMil««|
lis a iiwiw I
ling iiitif*' 1
T,iatuntyi<l
BILLS OF EXCHANGE AND PROMISSORY NOTES. 518
W'liittcmoir, U! Q.
The ftL'reenieut between the i)artic8 tixes the /{oi/nl Bank of Liirrjiiinl v
rate of interest recoverable as damages, liowuver H. 4'_'!),
exorbitant it may be. Youiiii v. Fliih; 15 C.
1', 300.
\ loan of nuniey was made for two months at
twi Mcrcent. anionth, at the exjiiration of wliioh
tiiuf it was contemplated a new arranL'ement
wmilil l)u made. After the two months, no
iitliur arnuigenient having been etl'octod, the
court lield the lender entitled to claim inter-
eat at the rate originally agreed upon, and to
jell the notes held by him as security to repay
himself the amount of his claim ; subject only
til the (luestion whether he had sidd the notes
fur thf hest price that could be obtaineil
fur them, and as to which the court directed an
ti'imiry I'lefore tlie master. O'Cmnur v. Clarb:
ISl'hy. 4-22.
Though interest does not usually run until
acmawl made upon nucli a note, yet wliere pay-
ments have l)een made on account the jury shouhl
presume that they were made in conseiiueiice of
aileniaml, and interest on the balance will then
ijicrue. Il'inl v. Palmer, 21 Q. B. 4i».
Interest at tlio rate allowed by our law is
charwable upon a note dated and made payable
iiitiiu United States. Orijiin v. JiikUhi, 1'_' C.
P. 430.
See, aUo, l{ari><r v. Patn-Mm, 14 C. P. SSS.
(li) Dammji'x (iml Exclmmje on Forciijn BUIk.
[Sec now C. S. U. C. e. 42, Consolidating 12
viotc, :«.]
k forei^ii bill may be referred to the master
I tiir amiputiition. Ciniiinirrwl liiiiih v. A/laii, 5
0. s, .")74.
Till [ler cent, damages under .Tl (ieo. 111. c. 0,
I. '.', lamiot 1h' recovereii on a foreign bill re
I tumi'il for non-acceptance, nor can re-exchangc,
\ note made here, jiay-able in New York, but
not there only, is not witliin sec. .*{ of 12 Viet. c.
7tt, .so as to entitle the holder to four jier cent,
damages on protest for non-payment. Mi ijir v,
lliili-liiii.-iim. Hi Q. H. 47<i.
In an action on a sterling bill, drawn by the
plaintitl's in l.oiiilon upon the defendant living in
Ujiper ( 'anada, accc|)tcd in this jirovince p.ayable
in London, and returned to Kngland : Hehl,
that no damages could be recovered, as the bill
C(udd not be said to have lieen negotiated in
L'pper Canada, but only tlie value of the bill at
24s. 4d. to the pound sterling, /''uiliry. Bowen,
2 P. R. 2r)().- -C. L. Chamb. Richards.
Action on sterling bill drawn by plaintiO's in
l»ndon upon defendants in Upper Canada,
accepted by defendants in London, (one of them
being at tlie time in London,) p.ayable in l^on-
don : - Held, tliat plaintitl's were entitled to
recover the current rate of excliange. (Irtii/iircj:
ft 1(1. v. Srorr el III., (> L. .J. 212. -C. L. Chamb.
— Holiiiison.
White V. Maker, L") C. P. 292, followed , as to
the damages, in the sliape of exchange, to wliich
the holiler of the liill is entitled against the
acceptor. Sli jilu in v. Jlirri/, 15 C. P. 548.
Damages which may be claimed on non-pay-
ment of a bill cannot l)e so claimed on its non-
aeeeptance. lUiiik uf Mmiliinl \. llurrUun, 4 P.
K. 331. -C. L. Chainb.— Draper.
(e) Piinhjii Currency.
On a note made and payable in Ogdenslmrg,
X. Y., which niature<l on the !)tli of August, 18(51,
the act of Congress making United States trea-
sury notes a legal tender in tiie United .States
not iiaving thirc Itecoine law until the 2.")th of
.Inly, lS(i2 : Held, that the plaintill' was entitled
mili'ss ileclared for specially ; although jiostage ; to the sum made payable by the note at the time
I mav under a count for money paid. oSiiU \. '
[p.™, ,M. T. .S Vict.
I'mler 'il (Jen. III. c. !>, a. 2, the ten per cent.
1 damages allowed on protested bills is not to be
I ^lll?ilk•re(l .is a s'lbstituto for the ditl'crenee of
I exchange, but is to be paid in addition to the
luiii l«ii(l for the bill, which would always in-
tliiilc exchange.- Sullivan, J., diss, yichol.i v.
|i(.';(«M, «g. B. 273.
Wliere a hill is ilrawii in l^pper Cjinada ad-
lari-stil til a resident there, and payable in lOng-
llniil, ten per cent, on it can be collected under
Il'2 Viit e. 7(i. /.'(«x V. Il';w<(».s 5 C. P. 185.
>is per cent, damages held chargeable upon a
iitisteil liill drawn and accepted in Up]ier
iiaila, payable in the United States, upon the
thnritviif the ■■vlidve ease. Aiiii'riciiii hlirhniiin
'<'fkv.'.\l,\\licbii, 8('. P. 51).
, .^ "lite nwde in Ujiper Canaila, jiayable in
R:.*t;"W, not adding, "and not otherwise or
ii«hure," in payalile generally ; and the jilaiu-
canuot recover the diti'erenee of exchange on
Khiiote. Wilmiv. Ailkiii, 5 (!. P. 37(!.
Il'iiilor \i Vict. c. 7<), ten per cent, damages
|teooveralile on all bills drawn in Upper ( 'anada
England, and protested for nou-paymoiit.
it intituled, witliont reference to the rate of
excliange existing between tiiis jirovinee and the
Uiii. mI States at the time of the trial. JidUnu
V. Cnlliii. IS C. I'. :i.")0.
To the lirst and second cmints of a declaration
on two iiiites, dated respectively I Itli September
and 2!tth Noveiiibcr, IS(!(t, ''or the respective
sinus of S.VKt.24 and .S38,S,85, )tayable six
months after date, the defciulant jileaded that
the notes were signed .•iiul eiiteicd into in the
.State of llliniiis, ouf of tlie United .States of
.\merica, to lie paid when due in I'nited States
currency, and alkged a tender by defendant
before action of S()0(). 12 of lawful nioney of
Canada, which was at the time last aforesaid
eipial to plaintitl's' claim. ,ind a refusal by plain-
till' to accept same ; Mild, on deinuirer, plea
bail ; tii'stly, fiu- alleging the ainouut tendered to
liave b en e(|ual to the plaintitl's' claim on the
day of tender, before action brouglit. instead of
at the time of the maturity of tbe notes sued
u]ioii, with sul>sei|ueiit interest, itc. ; and,
secondly, for alleging that the amount tendered
was e(|Ual to plaintills' claim, instead of " eijual
in v;iliie to a certain sum of the curreiuy of the
United States," iVe. : though, senible, this might
be only ground of special demurrer. White el al,
v. JJid-er, 15 C. P. 292.
ll '^ li
m
■ :,ri
k
! '«^
819
BILLS OF EXCHANGE iSND PROMISSORY NOTES.
o20
1
A note made liuro paynl>lt! at a plauo in the i
United States, Imt not " not (itlierwiHO or el.se- ;
where," in payable generally, and tlii^ law and
currency of tin! place of contract inuHt govern.
Jfoobr'v. Ltxiif, '2~ i). \i. '_'!("). See alno .!/(//< c
V. Jliiteliiiiioii, 1(1 (^. 15. 47<>.
Declaration on a note made at Toronto, pay-
able to plaintitlH for .•?;«)•_•. 7 !». I'lea, that tlie
note waH payalile in Kocliester, in the I'nitcd
States ; that when it fell due TrcaMury notcH of
the U. S. (Joveriunent were a legal tender in
payment of all notes ; that if clcfendant had
then tendered the amount of tiie note in Treas-
ury notes, it woidd have lieen a gooil tender ;
that !?144.r)3 of lawful money of Canada, then
euualled in value Treasury notes to tlu! amount
of the note ; and defendant lirings tiiat sum into
court: — Held, assuming the note to lie payable
at Rochester, but without the wonls, "not other-
wise or elsewhere," that the jilea was bad.
Nouivr V. AcWic, 27 (). H. •-'!»,-..
See Griffin v. Jmlmii, 12 C. I'. 4,S0, p. 017.
7. Vontt.
(a) ITmWC. S. V. C<. r. J,:, x. .',?, ,t .",■,/., t'"r-
mirhj r, Will. I v. c. I.
If there be two endorsers, and the lioldi;r bring
several actions against them, he will be entitled
to his lull costs in oidy one suit, and his dis-
bursements in the otiier. SliuU r v. Dec, 1 Q.
B. 2!)2.
Where the plaintiff sued separately the acceji-
tor and endorser, and the acceptor jiaid the
claim against him, but without the costs, and
judgment was entered and ex.ecution issued
against him for their anniunt and the costs of
the suit against the endorsers, the execution was
restrained to the costs against the acceptor aloin'.
Qillt'njiif ft III. V. Ciiiiirron, ',t i). B. 4.").
A., at the assi/cs in Toronto, sues R. as one
of the endorsers on two notes -one for t!27, and
the other for t7'>, A. recovers on the note for
,t27, but having mislaid the note for L'7(>, he en-
ters a nolle })ro.se(|ui as to that part of his claim.
A. also brings anotiu'r acti<pn in tlie District
Court <>{ the Niagjini district against ('., the
maker, and D., another of the endorsers, on tin-
note fcU' i;27. On motion under .") Will. H'. c. I,
to restrain plaintill' from recovering more than
the full costs of one suit :--HeUl, that the act
did not apply, (ti'ililen v. liiiijcrx, f) t,). H. 1. —
P. C. — iJraper.
Nor docs it apply where one of the parties to
the note not sue<l with tiie other, is at the coup
mencement of the suit out of the juri.s<licti(ni.
Bank of B. X. A. v. Elliott, (i L. ,1. Iti. (.'. L.
Chamb. — Richards.
AVhere separate actions were brought against
maker and endorsers of a note, and ufion a de-
murrer to the replication, judgment was given
for defendants, and the plaintiffs made one ap- I
plication to amend in the three cases : Held,
that defend.int was only entitled to the costs j
fis for one case, in attending to o])pose it : - |
Held, also, that as to the ordinary fee disbui-sed
to counsel, to argue the demurrer in the three
cases, and the ordinary ta.xable costs oc-
casioned to defendant by the demurrer in each
cfise, that they might be aUowed to defendant.
Bank of Ji. N. A. v. AinUij, 7 Q. B. 521.
Where the maker and endorser, hoini/ hu
^r Ti Will. IV., e. I, j,,;,, ,„''
together nude
ilefence, the second
. ■ 111 1
i^nilorser may rcriiv,.|- ff,,„
the first the costs of sueli suit, witlmnt a ,s
count or any further proof of an expios
to defend. Fo.r v. Suin r, 18 ii. B, -.'."lS.
.ifi'Wl
''i:i|llfvt
8 Oth<r ('iixr.i.
Where a person in possession of ,i iiute siicn
in the name of the nayee, the court mihciI u
set aside the proceedings after judgiiitnt. uiMin
an allidavit by the supposed payee tlint iu' L^i
m^ver possessed such a note, the difinilaiit m
the same time m)t swearing that he Imd ||,.yj,,
given such a note. Tai/lorv. /idirnm, Tay. 4,S|
A note made in Albany, l'. S., may In, ,i^,.
elared on under the common counts, uiidii th
statute of Anne. Kirk v. Taniinhill, Tay. (im
Action on a note made by M. aiidi'iiddrsciDn
('. I'lcivs by M., general issue aiiil stt-dH; ,,|,'|
by C., general issue, set-ofl, and release. 'Hn,
plain ti lis took issue on M.'s pleas, aiiil intiml
a nidle prosLMiui as to (.'. : -Held, liy Itdlpinsi.n
('. .1., and Niacaulay, J., that inasnnuli ;is tiij
plaintiH's confessed by their iiolle pKiseciiii tint
( '. had i>, set-ofl' sutHcient to meet tlic imto, tlnv
could n<it recover the amount jigainst the (ith.'r
defendant ; and by .lones, ■!., ami lliigerniaii, .1
that they were not precluded froiii (leini; «„'
Itoliirtxiiii ft al. V. Moorf ft al., (H). s. {'yin.
A note declared on need not be nieiitiniicil ia
a bill of particulars. Strfft v. I'amfruu, H J
2 N'ict.
Where the idaintifTs dt'dared ajjainst tlie
drawer of a lost bill payable to plaintitr.s i.nlir,
on a promise to pay it, b\it ilid not state ;iiiv
new consideration for the proiiii.se, iiiir .ilkw
vliat the bill was unendorsed at tiie time »i t\\t
loss, the declaration was held bad mi general
demurrer. Butxfll v. McDonalil, 1 Q. B. ild).
The jiayee of two notes for t'2.' each, liavinr
absconded, is not thereby disabh il fidm suinj
the maker upon them on his retiini to the ]ir.k
vince, because in his absence an attaeliiiaiit lul
been taken out against him for t'JI , by A., aerwli-
tor. Slattfnj w Tiinifji ft nl., ~ (}. !!. ,"S.
riaintitl", as execut.ir, sued to ivenvei'minin-
received by defendant for his testat<ir en a wM
payable to the testator. The maker swun ikii
he had paid defendant, who liaiuled liim tkr
note, which was still in his jiosscs.simi, tlmiitli
with the name torn oil':- Held, not iieotssan
to ])roduce the note. Van Allan v. Fniiffi.
14 il B. 571).
A writ of summons may be specially t'lulnrwl
as for a balance duo on a bill of exeliaiige. lun
though some of the items forming iiavt hI tie
amount are nnliiplidated, there lieiiig a ii.il:Ui«
due on the bill itself, /iank if Mniilridl \: ih-
rixon, 4 P. U. 331.— C. L. Chanili.- UrajnT.
A writ of sumnums was specially endorsi'd for
interest on the balance of an accciiiiit, aiiil k |
protest charges on an unacceiited diat't; -HelJ,
tliat the enilorsemcnt was right as t(i the iiitorest
but not as to protest charges. Hank nf Muntrejl |
/'. Harrison, 4 P. R. 331, exjjlained. Sinflmti.
Chixholm, 5 P. R. 270.— L. C. Chamli.-Uaiton,
L\ V. S: P.
521
BILLS OF EXCHANGE AND PROMISSORY NOt^S.
522
A note payftl)!*) •" *''*' l^ii'tetl Stiite-s, in
Viiicricaii iiirronoy, nml all the partius t.> which
Zm\e in tliiif country, iimy Imj micd uik)1i here.
XIl. Uefenoes to AtrroNS.
1. I'hintiff mil thf Holder.
ReiiliciitiiiiiH to pleas sotting np this defence -
I'avec agsii'st niiiker. Plea, that before suit,
./"tlig .iliuiitirt' endorsed to A., who liecivnii!
the holder, nml t<> whom, therefore, pl.iintitl' was
liahlc Heiilifiitiou, re-attirniing that plaiutitt'
WIS the hiiMiT, and soecially traversing that
\ was, as aasorted : -Hold, replication good.
'lyA'nmn v. Vliinuw <■! a I., 7 Q. B. 4'.>1.
The maker of a note, sued by payee, pleaded
that bt'fdre suit tiie plaintill' entlorsed the note
fur value to a person who is unknown, who is
thehiiMer. Kei)lication, that the plaintiff did
not so endorse :— Held, bad. Mclntyrv v. Sh-iid,
8Q. B. 300.
I'ka, that before the note b.'canie due, plain-
tiffemiorsLil it to a i)ci-son unknown, who is the
hoMor. Keplication, tliat plaintilV was Avhen
luit bronght, and is the hohler, without this,
4c • -Held, had, on special tlemurrer. liruii-
Payee of a hill ajjainst the drawer. Plea, that
Ihc iilaintiff at the coniniencenient of this suit,
was not the ludder, without averring speciHcally
ID iiulorsement to some one else : -Held, bad.
B„;,MV. /«.*»-/'/», 8 1^ B. 273.
To an action on a note by plaintiff as bearer
Igainst tlie makers, defentlanta pleaded that
ittcr the making of tlie note, and before it became
idut, tlie plaiiititf, for a valuable consideration,
'dehvored it to certain persons to defendants
jmikuown, who lost the said note, and the same
jiic into the hands of the plaintiff' by tinding,
jiBil not hy a-ssignmcnt or delivery for cousider-
iti.iii ; and that tlic said persons unknown were
111 >till are entitled to .said note, ami the
iiiey due thereon ; }leld, a good defence.
i!f(iii;(/'v. Sliiiiliiihunjli I't (d., 13 y. B. 184.
Tliu pliiintiif, as coroner, sued upon a no^i
lie Ijy defendant payable to B. or order,
ging that while it remained unpaid one M.
iivered a judgment against B., ('., and 1)., ami
leil a ti. fa. ilirected to the plaintiff, under
d before
suit, K., being the owner and holder of saiil
ilelivered it to C. to receive the amount
ircof, and pay with it a demand made by the
icrs of a certain vessel iigainst B. & Co. , and
1(1 over the resiilue to the C'onnnercial Bank.
il further, that in the suit in which saiil jmlg-
i was recovered, an order was made for
mlants to appear and be examined before
jjilge of the County Court as to the debts
them, &e., and the note was then Hied in
Court of t'ommon Pleas ; that the j)laintiff
M. had notice of the premises, and said note
tikcn out of the said court by the fraud of
lilaintiff, and others in collusion with him,
the plaintiff, at the commencement of this
lich he seized the note, i.'efendant pleaded.
St after the making of the note, and
suit wiw the bidder of the said note by fraud: —
Held, on demurrer to the jilea, declaration good, ,
for it nmst be lissnmed that the writ was properly
directed to the coroner, as it might be under '20
Vict. e. .'>7, s. 'li ; plea bail, as shewing no do-
fence. Hroirn V. (Ion/on, 1(> Q. B. .34'2.
In an action on a note payable to ])laintiff or
bearer, brought in the name of the plaintiff, un-
der the Division Courts Act, see. 15'2, by a per-
son who had obtained execution against him in
that court, defendants pleaded, among other
pleas, that the plaintiff' was not the legal holder.
It ajtpeared that the note had been seized by the
biiihtr in tlie hands of oni; 'I'., to whom the plain-
tiff had handed it fi.:' collection : - Held, tiiat it
was not indispensable that the declaration shouhl
shew the suit to be bronght under the statute ;
l)ut that defendants were entitled to succeed ou
the plea, for the plaintiff was not in fact the
holder, and to entitle the real plaintiff to shew
his right under the statute to sue in the name of
the nominal plaintiff', the facts should have been
specially replied. It is safer in such actions to
aver and prove a judgment to support the exe-
cution, but Semble, that it is not essential.
McDoniddv. McDonnldft (d.,'2\ Q. B. 52.
I)efeiidaiit made a note payable to T. or bearer,
who died before it matured. His widow mar-
ried one P., and they sold the note to (!., who
transferred it to the plaintiff'. One 1). adminis-
tered toT. 's estate, and took proceedings against
P. and his wife to recover the assets. A bill was
filed by defendant to restrain this action, and
in his answer the plaintiff" swore t''"*', in conse-
(juence of the dirtieulties with the adni inistrator,
he had returned the note to (r. Iiefore Ihis action,
that he had no interest in it since, and never
authorized or heard of this action. The plain-
tirt''8 attorney swore, on the other side, that both
the plaintiff' and ( !. instructcl the suit, and that
plaintiff' had recognized it, saying that he was
indemnitied by (r. The jury having found for
the plaintiff' on a plea denying that he was the
lawful holder, a new trial was refused in the
County Court: — Held, I. Attirming the judg-
ment behiw, that the plaintiff's answer in C!han-
ccry, though very strong evidence, was not con-
clusive : 2. Reversing such jmlgment, that
admissions by (t. were improperly rejected, ho
being, according to the pl.aintiff's statement, the
person on whose immediate behalf the action
was brought ; .3. That upon the evidence the
plaintiff' should have been fimndto be the holder.
Ancona r. Marks, 7 H. & N. (i86, distinguished.
Cofiti'M V. K<l/i/, -21 Q. B. 284.
One M. made a note on the 17th November,
I8(»8, payable to T. or order, at three months,
at tlie (^uel)ec Hank, for §4,000, which was
endorsed by T. .and the plaintiff, and disccmntcd
by the b.ank for T. On the 24th November,
I8()8, a note f or .* 1 , .^OO made by W. payable to
T., and endorsed by M. for T. 's accommodation,
was handed to the bank by T. as collateral
security for the §4,000 note, and the bank also
advanced on it .$1,000 to T. This note, when it
fell due on the 27th .January, 1869, was retired
by the note sued on, which was for ? 1,500, at
two months, made by W., payable to T. and
endorsed by T. .and by M. to the bank, and was
given, as the bank manager swore, for the samo
purpose as the previous ijl, 500 note. The bank
received !jl,200 from T. on account of the $4,000
' ""if
m
i I
^98
BILLS OF EXCHANGE AND PROMISHORY N0TE8.
■'i\
fr
note, unil tliu ]ilaiiititr paiil tliu hiilanco on tliu
nnihirxf.andiiiK that tho liaiik woulil liolit thu
(Sl,ri(N) noti' for liis hciu'lit, ami tlii'V aftoruarilH,
at hJM rL'i|Ut'.Ht, ^avo it to their Molicitor to Hue.
In an aetion on tliiH note l)y the |ihiiiitiir against
»V. k M. ■ Held, that lie wiim entitled to reeover;
for, 1. lie was the lioliler of the note; 'J. The
note lieini,' dejiosited with the Wank an eollateral
seeurity for the .'j'i,(HM> note, and not merely for
tlie SI, (HM> advanced on it, the hank held it for
tlie fidl amount ; ,'{. If the note eould not lie
said, when taken on the '.'7th .lanuary, IS<)!), to
be a Heeurity for valiu^ heeause tlu^ .'>i4,(HK) note
had not then matured, it lieeame ho when tiie
latter note fell due on the 'JOth I'Vliruary, ISIIll,
and value arising at any time during the eiir-
rency of a note in siitlieient. lilaki' v. W'lilsh it
III., '.Ml (/. K TAX.
See A'.w.v V. 7'//«/». 1<» ('. P. •.Mt4, \>. .'(JO.
-. /Idiii/itrtiiiniif /'liiiiiHjl' Ihihlf nri r.
Where in an aetion by the payee against
the maker and endorser of a note, it appeared
that the euilor.si:r itut his name on it as a surety
for the maker : Held, tiiat the plaintilV eould
not reeover against him, as he was a party to
thu note suliseijuent to the plaintili' liiniself.
•/oH('.< V. Aslirroj'l I'l III., (! (>. S. I."t4.
Senihle, That thongh, under liishoii /■, Hay-
ward, 4 T. I{. 470, where a ])laiiitiir suing is
liable over to the defendant by reiison of a
prior endorsement, he eannot reeover; yet if
he sue with others, as an exeeutor, he may.
Jenkin.-i it III. V. MrKiir.ir I'l nl., t! i). H. 544.
A. being indebted to the jplaintill's, otfered
them a note with an endorser. The plaiutifl's
agreeil to aecept one, and A. made a note
jiayable to the plaintitl's [Uoeure(l the defen-
dant to endorse it in l)lank, and delivered it
to the plaintitl's. The plaiutifl's diseouuted the
note, having enttorsed it under the <lefendant's
endorsement. • The note having been dishoii-
(Uired, the iilaintitl's to(d< it up, struek out their
endorsement, and again endorsed it above de-
fendant's name, addingto their own name "with-
out reeourse," and then sued the defendant :- -
Held, that though the iilaintitl's had not en-
dorsed the note when the defendant endorsed
it, and thongh their endorsement, nuiking them
stand as lirst endorsers on the note, was not
written on it until after aetion brought, yfct
that sneh endorsement was sutiieient, Senilile,
also, that the defendant was estopped from deny-
ing that the iilaintitrs' name Avas endorsed when
it ought to luive been, /'n-k ct nl. v. I'liipiiiiii,
9 Q. B. 73.
Deelarixtion on a note made by P. p.iyablu to
F. & F. or order, endorsed by them to defen-
dant, and by defendant to the plaintitl's. Plea,
that F. & F. are the jdaintitl's, and no other per-
sons. Replieation, that at the time of m.aking
said note and endorsement by defendant, the
maker was indebted to the plaintitl's, .and it was
thereupon agreed between them, that in eon-
sideration that the maker wonld proeure defen-
dant to endorse said note and become snrcty
thereof to the plaintitl's, the plaintitl's wonhl
give time to the m.aker until the note matured ;
thiit the note was mu<.le in x>ur8uauuc uf such
agreenu-nt, and defendant for tho acciiiinii(„i|
tion of the maker eudorstMl it to the |il:iiiit|ti,
with the intention of thereby beeoniiii:,' si;,.,,,^
to them as endorser ; that the niakir .liUvi.fjj
the noti^ HO endorsed to the plaiutills, wliutliciv,
upon gave time to him as agreed on, iiiul tint
the debt is uniiaid : Held, replicatinn ^,^;,
/•',m/< ,• it III. V. rnrnirll, Ui i). H 4»!t.
heclaration, by (!. M. k Co., on a nutc nui,!,
by S. it I!, payable to (). .M. & Cu,, ,„. ,,|.,j^,^
endorsed bv them to defendantaild liy iIiIiikIim
to pl.iintilis. Plea, that (!. M. k ('„. ai>. i),,
plaintitl's, anil payees of the note, .iiiil tlir s,ni,p
persons who endorsed it to di'lendauf, ainl art
j liable to defendant as such endorsers, if In .i||,i||i|
; be made to pay. lieplii'ation, that tlw iiLiiiitid,
names were used as payees for form diiK ; aii'
it was understood by all parties to the iinti-, tlm
although nominally made pay.ilile tn tliu |,laii,!
titl's, it was substantially to be paid toil(..||.||i|,||,
lieean.se, by ;i special agreement lietwci'ii iilain.
titl's and ch^fendant, notwithst.indiii;; the fnniini I
tht^ note, the plaintitl's were not to Imimhiu lialjf
to defendant by endorsing to him. Tiic ivliliin,
shewed that the note was given to f iialiK' tliJ
makers to get goods on credit from the pliiintitfj
an<l that dcfeuilant kiuiW he was einlnrsiuj; j,,-
that pur]iose ; Held, that the )pl,iiiitill's r„ii|i!
reeover. .Mufnll 1 1 nl. v. ViV/.i, l,"i (,t, li, ,V.';.
W., the tirst endorser of a note, .hiumI M, tiit
second endorser, and jirovtMl that tlie iintc lia,i
been given by the n\aker, one ( '. 1!.. ii|iiiii tin I
dissohition of a partnershi]i between liim.iili an.i |
the ]ilaintitl', as security to the iilaintitl loi tin
amount of thc^ note due to him upon sikli .iittk.
ment, and with the understanding tli.itaiuiilnr-
ser should be given. M. tnidorscl tin. Hdtialttr |
the plaintiir, with notice' of these facts :-Ht-l
that he was liable to the prior eiidiirser. ll'iWv. |
in,, -111 V. .y Ill-ill, iiijiill, H ('. I'. 4();{.
Oeelaration by (i. against M. i^ W. mi aii^tt
for 81(M), made by .\1., payable to (;. ur dnlcr,
by (). endorsed to \V., aiul by W. tn tlio piidn-
till'. Plea, by \V., that ( i., tlic [layue ,iiiil in-
dorsee, and the plaintitV is the same iifismi. aiii
as such payee endorsed to ilefciiilaiit \V. Ilqili.
cation, that before the making of s.iiil imtitlii
plaiutitr agreed to lend to dcfciiilaiit M. ■*l(l),
provided he would procure \V. tu iiiii'ret
saiil note as surety for the iiayineiit tluwii
to the plaintitl'; that in piiisuaiui' nt siiili
agreement M. mule, and W., for iii.i aarni'
modation, endorsed, and M. clclivcrcil saiiimte
to the plaintitl' so endoised, and pliiiitilf kiit.\l.
the .»!>100, which has not been piiid :-litH
replication good, (liiiiii v. McI'Ihi-.ihii it i\l,\i
(,t. h. 244.
I'laintitl', payee and tirst endorser uf :i ii*
.sues a subsequent en<lorser, aiul calls liini !i' ]
prove the replieation that he eiidnrsnl witJ! tlie j
intention to lieeome liable to plaiiititf ,isiii'l'r*tr |
and surety for maker, itc. heftiiilaiit tsprt*
<lenies this. There being no ntlicr t'viiitik'.. - j
Held, that there wiUJ nothing to gn tntlu jaryio j
warrant a tinding for plaintitl'. .l//./7( v. 'tf' '. i
11 V. V. .'{(53.
Hehl, .1. Wilson, .f., diss., that tliep.iyeeofi j
note endorsed in blank cannot, liy iiitri'ly«riti«i |
his name above the endorser, iiiaiiit:iiiiaii:i'W j
as endorsee against the latter, unli'ss lii' stf
authority from t'-o endorser so to do, withtltl
%"f the note h
yi.t
BILLS OF EXCIIANOK AND PROMTSSORV NOTES.
.120
,,f^8„lljuft of crflltlllg ImtWl'Cll tlll'lll tliu ivlii-
'., Lliiii mill cim«L'(|m;iit liiiliility of I'liiloiwnmd
' mI. llnUrlson V. ilmhwli; 1.", C. I'. -J'.tH.
KinliiWi' iiKiiiii^t eiicliiiMur. I'luii, tliat tlii^
ii„t'uw,in I'luliiiHi'cl liy iHiytf witliciiit coiixiiliTii-
.„',„ l,v lU'tViulaiit to liiiii : tliiit .li'lcii liint, fur
,li,,,i,,;,,inmi"liitioii of nnikuniiiil jmyfi', ciiiIiiimi'iI
I, lihuik ami lUlivuiol it to jiayi'i', iiinl tlicii'
' .yiT Wivn iHiy iimsi'l*^""''"" f'"' till' uii(liir.Hi'iiifiil
I'lf tilt' i'"t'' '" 'li''«'"''""*^ ! '""' *''•''■ I'lyt't', ill
f'ruwli'f ilffi'ii'liiiit, clfliveif.l the iiotr U> i.liiiiitill
tfithiiut valiK' iir foiifiidL'rrttioii, iind milely tnr
,|i^, ,„,ri,(i.si'<if I'ucluavoiiriiig, tlinmKli plaiiitillH
u'fiR'V, to rfoovor HKaiiiMt .IcCiMiilaiit. 'I'lu;
evi.iti'ifo ahewocl that tliu iiiakei', liciiig imk'litu.l
til the imyt't.', |iniiuivil ilufeiulaiit tot-'iiiliirxi^ itn-i
f,if.i,l i-'llii' l>"!l"' ^■''" '""' )><'i'^i"i»<b' liii'liiiNfil
itmliliU'k, ami aftorwanls " witlnmt ruomrso. "
Itmrtlicraiilifaivil tliat iilaiiitill liilil tlio liiiti-
witliiiut viiliialilf iimxi'lfi'i'tiiiii, tin; payee heiiiK
iiifut lifiifliiially eiititleil, ami the note lieiiig
guiil 1111 111" I'^'l''*'' ■ H^''''" ^''•'t t^'"-' t'videiiee iliil
iiMtsiistiun tliu pleas, anil the plaintill was eiiti-
tl,.,ltn ronivef, within the principle of Morris c.
M'lilkir, l."> '^ "• ''^^' '"'•' ""'■ "^* " '-'"«"J'* '''"'"
IVik c'l'liilipoii. '•' *^ H. 73. Smith v. h'ifliintt-
,o«, KiC. 1'. -'I^*-
1 Ihiiiiil ';/' Miikhni iir Kiiiliirs'iiiij.
Ihiihil iif miik'iiKj III- iii'ir/ifiiiij.] In ivn aetion
Imuist a nifiiilier of a joint stock eoni|)any,
Uij iiiliiiissiiins that he was a partner are siilli
icitiittu jiriivc liis liability, without iiroiluciiij,'
jthf iiaitmrsliiii ileeil ; and when a company
i'liuifil fur purijoses »liich do not render
Ithtilrawiiig ami accepting; of Wills of exchaii;L;e
_lii"tesiu'(Tssaiy, it will liesnllicieiit to estali-
Ifchtlitlialiility iif a partner, on Mils and notes
Idnwiid. acei'ptud ill the name of the coinpany
|b}- tlitir buciftary, that while he was a partner
■tit scretary was in the haliit of so drawing and
Mjitiiiii hills, which were afterwards jiaid w itli
MiH'iirrwice ami admission of liuhility. /-<'■
ly.ii'/h.mhl, ti(». S. ISO.
iKtiiiiliUit having heeii arrested, re(|Uested the
ipliiiiititl til jiiiii him as maker of a note to M.,
■ilitnr, fur the (lel)t, which lie did, ,uid the
Ipliuilitl was oliligcil to pay the same with costs,
V. riie plaintill then sued to recover this
iiiiiiiut, alleging in his declaration that in eon-
diintiim of the plaintitl' joiniiiL' the defendant
sibling as maker, a note jointly and sever-
Dy iiMiiiisiiig to pay M., or order, the sum of,
:., Iiir iWffiiilaiit's use and lienulit, defendant
Kiiiiiscil thu |ilaiiititl' to indemnify him, and that
jiiiii liim accordingly : -Held, that the
iking (if the luito liy plaintiH' was not ]mt in
ic iiy the jilea of non-assumpsit. /{Ink'- v.
■arm/, iC. 1'. -MO.
f lletkiratidii on a note alleged to havo heen
Uleliy tlieilefeiiilaiitsundtr the name of A. H.
jl'ii. I'lea hy A. H., that he did not make.
faramr, that defemlants ))eiiig sued as joint
kers, it is nil answer for one of them to say
lit hi' iliil nut make the note : - Held, plea clearly
"' ("ihl liiid- V. Kcllar H <(/., 2 C. P. 508.
jjiuire, as to how far an endorser is estopjiud
|u ileiiying the maker's signature. Jlanncuiiif
ploH, 10 y. B, 98.
(/iiicre, whether under ii plea of non fecit to a
note signed l>y the tirtn, defendant was eiititleil
to shew a limited partnership ; Imt wliert! Im
was allowed to do so: Held, that the plaintill'
might, in answer, oliject to the ileseri[ition <if
tile ImsJni'ss ; and, Semlile, that he might also
oliject that the special iiartner had not paid in
his share. Iliinilirl ,1 n). v. \'<iii Allni it n/., 17
I). II. '>:i\.
Where the defendant signed, as maker, a,
printed form of note, and handed it to A,, liy
whom it was lillcd tip for ?>'H'h), and phiintitt'
afterwards liecamc endorsee of it for value with-
out notice : Held, that the defendant was lialile,
though it might have lieeii fraudulently or im-
properly tilled uji or endorsed. MrlmiiK v. J;//-
/ii//, ;«)'(>». U. 4.S'.". Sec Siiiiill'iinl v. //o.«, (iO.
S, 104.
Where in an action against the maker of a
note, the plaintill' produced several witni'sses
who swon; to the defendant's signature, which
two of them said he had admitted, tint the jury
found for the defendant on his own evidence
alone, tlii' court gr.inted a new trial, with eimta
to aliide the event. Seinlile, that wlu'n thu
verdict is olitained upon the testimony of either
plaintill' or defendant, the rule against granting
a new trial on the w eight of evidence is less strict
than it was licfore the parties were adinissilde as
witnesses, ('iiii(ii)iiiii litniknf ('uiiniiii-i-i' v. Mi'-
Mill, 1)1, :u (l W. .V.IC.
Per A. Wilson, .1., thu evidence, set out in this
c;i.-<e, was iiiMilliciint to shew that thu defendant
was the maker of the note sued on, alleged to
have lieeii signed liy him as a marksman, anil
the plaintill' should li.ive heeii nonsuited. Iliuid
V. .\ijii<ii\ ;<•_' l,>. It. .V.'l.
I
I hiiiiiil iif , iiil'ir''!iiii.] A., the endorsee, sues
I 1!., tlir endorser, .illegiiig that after the note lie-
' came due, to wit, mi, iVc. , 15. endorsed to A.
i There was no averment of presentment or of
' notice. Ii. pleaded that hi; did not endorse as
! alleged : Held, that under this plea the eli-
j diirsement only, and not the time, was in issue :
I Held, also, that tin; note lieing endorsed
, when over due was no excuse for iion-present-
1 iiieiit, and so the declaration shewed no cause
of action ; Imt, nevertheless, as the plaintiff
had lieeii nonsuited for not jiroving the time
of endiirsemoiit, the nonsuit must lie set aside.
The court, however, in such a case, may grant
a new trial without co.sts, and allow the plain-
till' to amend. Darit v. hiiiiii, (i l^. H. 'i'l'.
Duelaration .against maker, ])ayee, and second
endorser of a note. I'lea liy the payee and
second endorser, that they did not endorse it iu
manner and form : — Held, liad, on special tiu-
murrer. liuA.tii, rt u'. v. Whit,, 12 (). 11. (i34.
See also Ihurkv v. Salt, ,3 ('. V. !)7.
Declaration against I., and A. .as endorsers of
a note payalile to the order of L., averring thjvt
defendants duly endorsed said note, 'ind that A.
delivered it so endorsed to plnintirt' : Held, oil
demurrer, that A. must he taken to he the in»-
mediate endorsee of 1.., and could not deny L. 's
endorsement, dfijihi v. /.iitimir, 1.3 Q. H. 187.
Where a note not signed hy any one Wiw
endorsed liy defendant, and delivered hy him
to the plaintitl', upon condition that A. and B.
should sign it as makers, and it was signed only
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BILLS OF EXCHANGE AND PEOMISSORY NOTES.
528
by C. : — Held, that these facts might be sliewn
by defendant under a plea denying his eudors?-
ment. Aitsfin v. Farmer, 30 C^. B. 10.
In an action against the endorser of a note, it
appeared that his name bad been written by the
maker, his nephew, and there was no eviilence
of express authority ; but it was jn-oved that
defendant had before and afterwards endorsed
for his nephew on purchases by him from tliesu
plaintiffs, and that when payment of this note
was deman led from him he had asked for time,
and had not denied his endorsement until some
months afterwards, when the maker had ab-
sconded. His excuse was, that he kept no
memorandum of his endorsements, and supp(^sed
it was right : — Held, that the defendant had
' '•ecluded himself by his conduct from disputing
Lis liability, and the jury having found in his
favour, a new trial wiis granted without costs.
Pratt V. Drab; 17 Q. B. T,.
See Peck v. Phippoii, Q. B. 73, p. 523.
4. CotiMileratlon an a Ground of Defence.
(a) What it a Consideration.
A debt due to a bankrupt estate, is a good
consideration for notes given to the trustees and
assignees of the estate, liaten v. C'rookx, Dra. 459.
A member of a joint stock company, not incor-
porated, lending, with the assent of the comp.any,
a sum of money out of the joint fund to anotlier
member, and taking from him a note payable to
himself, individually, for re-payment, can recover
on the note, notwithstanding that the funds were
advanced from the common stock. Vomer v.
Thompson, 4 (). S. 250.
A note given by A. to B. for a debt due by C,
upon a consideration of forbearance, and upon
no privity shewn between A. and C, cannot be
enforced. McO'iltrra>; v. Keefer, 4 Q. B. 45G.
Semble, that a debt due by a third party, but
not yet payable, may form a valid consideration
for a note. Dickenson v. (Jlvmow, 7 Q. B. 421.
A note promising to pay the Cluircli Society
of the diocese of Toronto or bearer, i;.50, with
interest, towards providing a fund for the
support of a Bishop of the western diocese of
Canada, who should be appointed in pursuance
of an election by the clergy and laity : — Held,
to be founded upon a sufficient consideration,
and recoverable in the hands of a bona title
holder. Hammond V. Small, Hi Q. B. .371.
A pre-existing debt is a good consideration in
whole or in part for a note or bill. Oooderham
V. Hutchison, 5 C. P. 241 ; liilliH v. Tem/jleton,
7 L. J. 301.— C. C- -Hughes.
And not the less so from a mortgage on real
estate having been taken to secure the same debt.
Bank of U. V. v. Bartlett et al., 12 0. P. 238.
Semble, That there is no distinction as regards
consideration, between a note given for a pre-
existing debt and for a new consiileration. Erans
et al. V. Morlei/, 21 Q. B. 547.
A note was given by defendant, secretary of an
insurance company, for a loss, the policy having
been marked "cancelleil," and left mthe posses-
sion of the company, and the note was not
payable uutil three days after the loss would be
payal)le by the policy. Semble, that this siiewhl
a sufficient consideration ; but tiierc w;is uti,.,
evidence of plaintiff being a holdei- fur valnt
Armour v. (idles, 8 C J'. 548.
Vahic arising at any time during the uurrcncv
of a note, is sufficient. Blake v. Walxli ,/ ,,/'
2!) (). U. 541.
(b) Accommodation or want of Considinitm,
/'/('«(/;»(/.]— Plea of accommodation and m m\-
siduration. Keplication, traversing no c.'()ii»i,lt.|..
ation, but not the acconnnodation : Held, ladim
special demurrer, (lilmnrev. Eilniiiinh •>(! [j
41!»; Brown v. Wheeler, (i Q. B. 3!):); 'aiU .'
Skeail, \)(i. B. 217.
I'hiilorsee against maker. Plea, that the note
was made and delivered to iilaintilf in iwyiiKiit
of 200 hats and cai)s, to be dclivurcil liy iilaintil!
to dcfeuihint, and that they remained undt-
livercil, Imt not averring any request for tluir
(kjivcry : —Held, ba<l on demurrer. Aiiihr.*ii,i v
Jennin'js, 2 Q. B. 422.
A plea that defendant endorsed witlimit con-
sideration from the maker or the jjlaiutitt', is kii
Bank of B. N. A. v. Sherwood, G Q. B. 213,
A plea that defendant made the note tn tlit
plaintiff as a gratuity, and that defendant never
received any consideration therefor, is good.
Poulton V. Dolmai/e, G Q. B. 277.
Where the plaintiff' sets out the consideration
on wliich defendant's promise was made, a iilea
that there was never any consideratiun foi' the
pnmiise, is bad. Bradford v. O'Brien, (i (.). H. 417.
Defendant pleaded that he made tlie note on
account of jiayn jnt of a piece of land, whieli
the plaintiff tiicn agreed to sell and eonvevtn
him, and to which the plaintiff then iinifessed
to have a title ; whereas the plaintiff never had
any right in or to the said land, and could not
and did not, convey the same to defendant -ur-
suant to the agreement ; and that there never
was any cousiderati(ni for making said note,
exccj^jt as aforesaid : — Held, on dennirrer, plea
bad, for not shewing when a title was to lie
made, or what the agreement was. Blmdijidd
V. Hirdsall, 7 (l B. !41.
Payee against maker. Plea, note made for
plaintiff 's accommodation without consideration.
Keplicaticni need not shew what the considera-
tion was. (Irarebj v. Jones, 8 (I. B. (!0d.
Payee against maker. Pica, that the note wai
given for plaintirt"s title to land, and tiiathe
had no title at the time of making tlie noteur
since, and so there was no consideration for the
note; — Hehl, on demurrer, plea itad, forforall
that appeared the plaintiff might have got all lie
expected, and it might be assumed that [ilaintilf
had conveyed by deed with coveiumts, in which
case, there would not be an entire failure of con-
sideration. Lund 11 V. Can; 7 V. 1'. 371.
On an action by endorsees for value, ag,iiusta
firm of M. and C, on a bill drawn liy S. & Co.,
in their own favour, accepted i<y the defemlants
and endorsed by vS. & Co. to plaintiffs, the defen-
dant C. pleaded that the bill was accepted by
his partner M. in the name of the firm as ,iii
accommodation for S. & Co., and without liii
C.'s authority, and was not within the scope and
.128
529
BILLS OF EXCHANGE AND rROMISSORY NOTES.
530
ilant •;v.i-
I'e iKVfi'
,i.l note,
rrer, plea
vas to Im'
iinte WM
that W
10 imteiir
1 ftir the
ir I'lir ail
^'(it allhe
it i)laiiitiff
in wliicli
ire i)f emi-
il.
against a
s.&Co.,
jfeiiilaiit«
the ilei'en-
ijiteil by
rni as an
I lilt iiis,
seope anil
oliioets of the partnership business, and that the
iiliiiitiHs tin.k it with notice. Also, ecpiitably,
tint the plaintiffs nfter the bill had matured,
having notice of the acconiinodatioii acceptance,
•ued wil
J, rued with S. & Co., the drawers, without the
consent of defendant, to accept a composition
fimn S. & Co., which composition was paid to
■ilaintiils, who thereupon discharged S. &, Co,
upon
that
tnini lialiility ; and t
charged in eipiity thereby
defendants were dis-
On demurrer — Held,
was insufficient in not
1 I'Tiat the" first plea
statin" that the acceptance had no reference to
aiiy dealing between S. and the firm of M. & C.
•2 That tlie cijuitable plea was bad, for the
piaintitr, having notice only uftn- the bill ma-
tured, mignt release the drawers without releasing
the accommodation acceptors. CUi/ of Olasijow
Bank v. Miinhrk H al, 11 C. P. 138.
8ee Hmd-e v. Salt, 3 C. P. 97, p. 510.
Other C'rtscs.]— Payee against maker. Plea,
that defendant made and the plaintiff received
the note from him, and thence hitherto held the
same, on certain terms and for a special purpose
■ aly, to wit, that the plaintiff should take care
'■ ''•'for him, and should not negotiate or part
with it to any other person, and that there never
was any value or consideration for the note
except a» aforesaid ;— Held, a good defence.
\\"mim- V. WUiiie.r, Excfufor, 22 Q. B. 44G.
The payee of a note given for goods sold by
C. to the maker, and endorsed by the payee
and C. for the maker's accommodation, and dis-
enunteil by C. at a bank, may sue the maker on
non-payment of the note, althougli he has him-
self paid it only by giving new notes (to which
the maker is not a party) in satisfaction, which
are unpaid, and no consideration ever passed
between the ni'-.^-or and him. Latham v. Xoi--
hn, 6 0. S. 82.
A secouil accommodation enilorser who has
paid a nocc discounted at a bank for the benefit
of the maker, may maintain an action on the
note against a prior accommodation endorser, and
may endorse it over after it is due. Breeze v.
Baldirin, 5 O. S. 444.
A. being seized in fee of lands, made jointly
with B. a lease of those lands to C, taking
notes from C. for the rent, payable as it would
become due. The day after the execution of the
lease A. died intestate, and then B. died, and
B.'s executors sued C. on the notes : — Held, that
they could not recover, the consideration for
which the notes were given having failed. Mer-
ii-in v. (.'((/,',v, E. T. 7 Will. IV.
The payee of a joint and several note, made
by two, can only be treated as holding one as a
surety f<ir the other upon his express consent to
rlosoatthe time of taking the note. Ball v.
mimn ct al., 7 C. P. 531.
maker, could not be charged witli more than the
plaintiff gave for the note. Utrathij v. yklwlls,
I (l B. 32.
It is no defence by the maker ^hat the plain-
tiff', endorsee, gave no value to the endorser for
hisendor.sement, or that he took the note know-
ing that it was endorsed for the accommodation
of the maker, without denying that he is a holder
for value. Miller v. Ferrier, 7 Q. B. 540.
Declaration against maker of a note payable
to bearer, an<l delivered by defendant to plain-
tiffs. Plea, that the note was made for the ac-
commodation of A. and C. ; that there never was
any consideration or value for the payment of it
by defendant ; and that the plaintiff's held and
hold the same without value or consideration :—
Held, bad. Mulret al. v. Cameron, 10 Q. B. 35G.
Held, that upon the evidence set out in this
case, those pleas were supported which set up as
a defence that the note was made and endorsed
for plaintiffs' accommodation. Bowes et al. v.
Holland etal., 14 Q. B. 31(5.
Endorsee against maker : Plea, t>B to part of
the sum, that defendant made the note only
for the acconnuodatitin of the payee, and that
tlie endorsee gave only a certain sum for it, to
secure which it was transferred to him. The
plaintift' replied that that sum was to be paid at a
particular time, but if not so paid, the plaintiff
was to bold the note for the wliole sum secured
hy it ;— Held, replication bad in substance, as
the defendant being only an accommodatiou | 8 C. P. 299,
34
Assumpsit on a bill drawn by one defendant
on the other two, and accepted. Fourth plea,
that the bill was delivered by the acceptors to
Messrs. H., wIkj transferred it to one (1. as
security for Hour to be sold by him to them ;
that (i. refused to deliver said Hour, and in con-
seipience Messrs. H. were entitled to receive
back the bill, and (i. held it without consider-
ation, and as their agent : that while he so held
it the acceptors made their note payable to the
drawer, or order, which was duly endorsed, and
delivered by the acceptors to Messrs. H. in
satisfaction of the bill : that H. afterwards, in
fraud of defendants, directed O. to deliver tne
bill to the plaintiff, and that he thereupon, and
without consideration from the plaintiff, and as
the agent of H. , <lelivered said bill to the plaintiff,
who received it without consideration, and after
it was due. The fifth plea was, that the bill
was endorsed to (!. tn part payment for the
tlour ; that after (J. 's refusal to deliver he held
without consideration, and while it was so in his
hands defendants paid it, as alleged in the last
plea : that the acceptors were then entitled to
receive it from G. , and that he thereafter held as
agent for them, and that it was overdue when it
came into the plaintiff''s hands : — Held, upon the
evidence set out in the case, that the plaintiff
must recover ; that the defendants had acted
negligently in paying as they did, and that
neither of the pleas were proved ; for, as to the
fourth, G. did not receive the bill as security,
but rather in part payment for the flour, nor did
he <leliver the bill to the plaintiff by Messrs. H. 's
directions ; and as to both pleas, he could not be
said to hold the bill after refusal to deliver the
flour as the agent of Messrs. H. , and without
consideration, because they had not treated the
contract for the sale of the flour as rescinded,
but had assumed to hold him liable upon it by
making over his flour acceptance ; and, as he
was a IkhuI fi<le holder for value, it was of no
consequence whether the plaintiff taking from
him knew that the bill had been paid by Messrs.
H. or not. Clarkxonv. Lawsonetal, 14 Q. B. 67.
An endorsee without value is entitled to re-
co\ -tn a bill or note if any intermediate party
is a holder for value. Wood et al, v. Jtosn et al.,
} I
V i ;i
■i i
I
if
531
BILLS OF EXCHANGE AND PT^OMIRSORY NOTES.
5.32
II
Uefeiulaiit oiidorsed a note for .§1 "230, for the
purpose of eiial)liiig the maker to olHaiii, as an
acMitioiial advaiiee from an estate of wliieh the
plaiutirt' was receiver, the ditlerenee between
that sum and 11 h)au of ii?iM8, advanced to him
before the making (!f the note, wliich aihlitional
advance was, however, not maih.' : lleM, that
defenihvnt was not liabk; as endoiser foi' the ??!)I8
origi'ially h)ane<l, and that a ]ilea setting u]i the
above fuets was good, (iircini-tiix/ v. /'(////, l!(
C. P. 403.
Remarks as to tiie j)ractice in this country of
taking notes for iliscount, not from the hist vn-
dorser, Imt from the malier, wlio brings them
eiKhirsed -thus suggesting not a business trans-
action, but accommodation en(h)rsemcnts. /inn/.-
of Jfontrcdl V. N(i/)(o/(U i-l nl., 25 Q. 15. 352.
Where the debtor died owing more than he
had the means of paying, and a month after-
wards his motlier, wlio wisluid to pay ail his
debts, was induced to give lier note to one of the
creditors for an amount which was less than onc-
eiglith the value of her property, it was Held,
that in the aljsencc of fraud, the note, thougli
given without professional or other advice, could
not be impeached in etjuity. Ctiiii/ihil/ y. lid-
fuiu; 1« Chy. 108.
See Wi'ibtmrniw. Dinih-I.i, 13 Q. B. 487, p. .541 ;
Slultziiiau V. Yiiiul<!l, 32 Q. H. (J.SO, p. n.SJt ;
Lcitrhv. Lei/r/i, 11 ('hj'. 81, p. 5{)l.
For other eases arising upon acconnnodation
paper, see V. 1, p. 48! t ; IX. p. 503; X. p. .503;
XII. (i (a), p. 542; XII. (i (g), p. 557 ; XIV. p.
5(J1 ; XV. p. 564.
(e) Piirt'itil Fttihirc nf ('(iii-t'ii/crdliDii.
A. and B. exchanged horses, and B. gave A.
a note for a diit'erence in the exchange ; A. sold
the horse he got from B. .ilniost immediately,
and after two years, during whicli notliing
appeared to have been done ])y cither p.irty, 15.
was sued upon the note by A. : Held, that H.
could not set up as a defence that the horse he
received was unsoun<l, although A. had declared
him free from fault and blemish at the time of
sale. JIdll v. Col,-, mm, 3 O. S. 39.
Defendant proved that the note had been
given by him to the plaintiff for the balance of
purchase money on a sale of some hams war-
ranted good by the plaintiff, and that many of
the hams were bad. The jury found for de-
femlant on the ground that the hams were
not worth more than the money paid : Held,
Robinson, C. .!., dissenting, that the j)artial
failure was no defence, without evidence of fraud.
Kello,/,/ V. //i/xtt, 1 y. B. 445.
Partial failure of consideration is no defence
to a note. D'uun v. Pdul, 4 (>. S. 327 ; Hill v.
Ryan, 8 Q. B. 443.
Nor that the consideration i)roved less beneficial
than was represented. JJalluii v. Ltilr, 4<). S. 15.
Where an action was brought for breach of
contract in refusing to sign certain notes, the
sale and delivery to defendants of shares in a
schooner being alleged as the consideration for
the promise ; anil it appeared that the plaintiff
had surrendered his interest to the defendants ;
and that they had continued in exclusive pos-
1 session of the vessel ; but that no assii'iniient
liad been maile as the statute directs, an,) .
transfers en<lorsed on the registry, nor any new
ecrtilicate of ownership granted ; the \ijiiit
I ordered a nonsuit. Hut if the defenil.ints li;i,l
\ given their notes, they could not havu lonisteil
payment on the ground that they had ii(it rv.
ceived a valid title, for there would duly |,^.
been a partial failure of cimsideration. 0/\>,-,
, Moiiiitiiin (4 III., <J Q. B. 382.
I To a declaration on a note, the defoiiiliuit
! ])lcaded as to £157 10s., part, &c., that tin-
[daintitf rcpresenteil that he owmd aitain
; lands, an<l was the e(piitable owner ol lot 14 (i^,.
I through one I!., who held it as trustee fur him'.
I and that defendant was induced by his faist miii
j fraudulent representations to buy the saiiii.- fiun,
I i)laintill', wlicreupon the plaintiff e<invcyi.il all
j his interest in saiil lands to the defendant ; that
! defendant paid part down, and gave lija t,,,,
j noti^s for the balance, one of which is tiiu imte
\ dechired uiion : that the plaintiff had no interest
in said lot , and that K. refused to ns.sii'ii his
interest in said lot to the defendant : iiehl, „„
answer to the action, the contract being entire
and the failure of consideration not beingdelinltc
as to this note. Cuiilter v. Le,; 5 (.'. P. i>0|.
See the remarks of Macaulay, ('. .J. ('. ]\ jj
to the avoidance of a security by frauil in a iiari
of the consideration ; repudiation of coutraethv
defendant, &c. Jl>. 204.
Assumpsit on a note made ])y defendant j(]intlv
with A. and B. Plea, that the note was ifiven
f.irthe purchase money of a schooner sold by]ihiiii-
tiff to A. and B. , defendant being their .■iuretv :
that the plaintiff on such sale guaranteeii the
vessel to be sound, but she was not sdinid hut
unsafe and rotten, as the plaintill' well knew, ainl
the said A. and B. , immediately after the sale,
discovered the unsimiulness, returned the vessel
to phiintiff, and repudiated the sale. At the
trial the written instrument was jirodueed, bm
which it a]ipeared that the sale was to delemlaiit
ahuie, and \m such giuirantee as alleged wa,* nm-
tained in it. It was proved that A. ,inil 15,, after
keeping tlie vessel a fortnight, tendered her hack
to the plaintiff', but she was refused, and they
went on usuig her. Semble, that the facts iliil
not shew a total failure of consiileratieii, ami
tlierefore formed no defence. Ili-mln-.s'iu v.
Cutfi-r, 15 Q. B. 345.
The plaintiff" sued upon a bill drawn hvA.
uj)on 15. for £30, payable to his own order, ao
cepted by B., by A. indorsed to ('. and by ('. M
the plaintiff. A. pleaded as to tib"), |iait
that the plaintill' accepted thejiill fmni him (Hi
an undertaking that he was to eolleet it ainl
apply £15 out of the proceeds to pay tliat
amount due to the plaintiff, wheref(ire, e.wept
as to £15, there was no consideration for tlie
bill : — Hehl, plea l>ad. liroini v. (I'lirMI ttd,
5 Q. B. 243.
Kndorsee of an overdue note against iiiaktr,
Ple.a, setting out the special circumstances iiiiilcr
which the aote w-as originally given, and denying
thereupon the right of the payees to negntiate
the note : -Held, plea no defence as to a certain
portion of the note, but a good defenceas to tlie
balance, lii-nnk v. Jarok, 6 Q. B. 329.
To an acti(m on two notes, defendant pleailed
that they were given for the assigumeiit to him
533
BILLS OF EXCHANGE AND PROMISSORY NOTES.
.'534
m
of the plaintiff's right to two lota of crown land,
iif which tiie plaiiititF falsely and franduli'iitly
roiirt'si'uttid that ho was locatec : tliat tiic plain-
tiff liad no claim to said land, and the notes
vjerc iihtainod froiiiMefondaiit l)y fraud : Huld,
tlwt iiu shewing tlio plaintiff "h title to one of tin.'
l„ts to havo been JkuI, 'without proving frauil,
tlio ilefcndant was cntitlod to sueeuud as to that
i,iit(if the claim for which the consideration had
Uileil. Sucli a defence, however, slundd pro-
li.TJv he pleaded only to that part of tlie demand
covered hy it. O'lirie,, v. Firht, 18 (l H. -2^1.
Ileclaratinn by payees against makers of a
note for S10(H), payable at three nioutlis. I'lea,
nneciuitahle grounds, that tlie plaintiffs falsely
anil fraudulently re^)resented to the defendants
thattliey liad tlie right to cut hardwood timber
unilur a crown license, on eertain lands of which
thuv ijave defendants a list : that defendants,
wishiii" to jiundiase such right, had all the lots
I'Xiiiiiiucd, and thereiii>oii, relying upon and be-
lieviiig plaintitls' said representations, and being
iuiluctiil thereby, as plaintifi's well knew, defeii-
iliiiits a"iced with the plaintill's to purelia.se the
rij!htf(ir.S'-,''^00, of which .^1,800 wa.s paiil down,
anil this note given for the balance ; tiiat defeii-
ilaiits relying, itc., cut and made timber on the
l(]t8; that the plaintiff's had no such rigdit in
respeot of a large (juantity of said lands, by
reason whereof (lefendauts' rights aeciuired un-
der said agreement, were wortli less by more than
Sl.OOO than the plaintiff's reiiresented they were
uossessed of ami pretended to sell : that (lefen-
dauts rtrst heeanie aware of the fraud after they
bad paid the money ami given the note, and ex-
iiemleil a large sum, and they are likely to lose
tlie money expeiideil by them in manufaeturiiig
a large ((uantity of the timber cut by them ; and
defendants prayed that it might be declared they
were not hahle to pay the note ; and that the
iJaiiitilTs might be re([uire<l to pay them a fair
idiniteiwatioii for their loss by reason of such rep-
riseiitations : - Held, on demurrer, plea bail ; that
itsheweil only a partial failure of consideration,
and not of any (letinite sum : that it was not a
caseiif either legal or ecjuitable set-ofl' ; and that
the defendants eouhl not prevent the plaintill's
retdvery until their right to damages or com-
luii.sation, and the .ainount of it had lieeii a.scer-
tained ; and, semble, that it should have shewn
ii tender of or readiness to pay the value of, or
im offer to give n]> to plaintiff's, the timber cut
liy tlieni on the hits to which plaintitl's had no
right ; and ptrhaiis, that sineo discovering the
fraud they had cut no timber on sucli lots. '/'/«'
'imnfmii lidii Liniiliir t'l), <})' llnhirh) v. T/itniij)-
mi't III, 3.")'^. B. ()4.
See Ahh(/^ v. Van; 7 0. P. 371, p. 5-8.
(il) Fraud and Itleijul Coimderat'wn.
fi'iiwiii;/.]— Inan actiim against the maker of a
note for vahie, payable to bearer, and transferred
to the idaintiff for value, also, after it w'nsdue, it
is no defence that the note was as.signed to the
lilaintiff's transferror in paj'ment of a gjimlding
lielitanil through fraud. Burr v. Mnr.'^h, M. T.,
: 4 Viet.
.\ssumi)8it on a note made by A. payable
|;>iB,, endorsed by B. to C, and by C. t<i plain-
itiff. A. pleaded— .5. That he gave tlie note
pt<i tlie payee as part of the consideration for
the ])urcliase of n lottery ticket, contrary to the
statuti! ; and, (i. The same defence, with the
i averment tliatthe pl.iintitl' became endorsee with
full knowledge :- Held, both ))leas liad. Held,
I also, that uiiiler tiie facts and ])U'a(lings there
i was no defonee under the statutes ag.'iinst
gambling. W'allhrh.nr y. liirb-t, 13 Q, K. Hfto.
Deelaratioii on a note fm' t'l."), jiayable to (r.,
or beirer. I 'leas : I. Thati!. eorruiitly and
I against the st.ituto held a lottery of land, and
disposed of the tickets for Si\'t each, and defen-
dant purchaseil one, for wliieli this note was
given. 'J. The same facts, adding, that the
plaintilfs took the note' with knowledge of the
premises, and aftm- it fell diU', without consider-
ation. 3. 'i'iiat tlie note was given for hind,
which \\as wmi by unlawfully giiiniiig and play-
ing, contrary to tlie statute. 4. That ilefeiidant
I was induced to make the note by the fraud of
, said (i. anil others, and the plaintitl's took it
I after it became due, without consideration, and
with full knowledge of the premises :~ Held,
on demurrer, first and third pleas bad, second
and fourth jileas good. Eraiit r/ nl. v. Morlnl,
•JO (I 15. -I'M.
I Held, affirming the last ease, that under 12
(leo. II. e. '28, securities given for the price of
tickets are not void in the hands of a bon;\ tide
holder of value. .V. U. 21 (}. H. 547.
Where the jury found that the phiintifTs had
not notice of tiie illegality, the court refused <a
new trial, liolding the defence not one to 1)6
favcmred. Il>.
(Hlicr Cii^'x.] Where the defendant signed as
maker a printed form of a note, and handed it
to A., by whom it was filled up for .ii!85."), and the
plaintill's afterwards liecame endorsees of it for
value without notice :- Hehl, that the defendant
was liable, though it might have been fraudu-
lently or inipro])erly tilled up or endorsed. Mr-
liiiKs V. Milton, 30 (l Ii. 48!t. See San/onl v.
yiVs,v, t; (). S. 104 ; L>irk-!ii v. Wuinl, 5 O. S. (JGl.
('ommissioners of a turnpike triu.t, ajipointed
I under a statute limiting their jiowers with
resjiect to demises and to the collection and
appropriatiiui of rent wlieii due, make a demise
beyond tlie scope of these iiowers ; the tenant is
put into jxissession and enjoys his term ; the
commissioners, at the exjiiration of the term, take
a promissory note from the tenant for the rent,
giving time for jiaymeiit : -Held, that the com-
missioners, by their clerk, could not sustain an
action upon such note, because the jiromise to p,ay
the note arose upon an illegal consideration, viz.,
the illegal demise. —Kidiinson, ('. .)., diss, /j'c-
/(iml V. aii('.-<.s cl III., 3 (,>. 15. •2-20.
Where a note endorsed iicrn'ralli/ was put into
the hands of A. to get it disccmnted for the
maker, 15., and, instead of th.s, B. owing him
(\.) a debt, he discounted it for his own bene-
fit, and, as found by the jury, after the note had
matured : Held, in an action by eiidiu'see aif.iinst
maker and endorser, that the iilaintifiF could not
recover. Kirr v. Stnml, 8 Q. B. 82.
In assumjisit upon a note, transferred hy the
piyee to jdiiiitilf alter it became due, on non-
assumjisit the defence set up was that the defend-
ant and payee had a settlement, when defendant
agreed to convey a lot of land within six months,
to give over eertain stock, and to give this note,
;"*;; t .;
1
-^rnrn
6SS
BILLS OF EXCHANGE AND PROMISSORY NOTES.
o3.)
the payee agreeing to deliver to the plaiiitiil'
certain notes, according to a schedule : tliat the
defendant delivered tlie stock, gave his note,
and mutual receipts were exchanged ; and tliat it
then ajipeared the payee had only part of tlie
notes in the schedule, which the defendant
refused to accept. It did not appear that tlie
land had since been conveyed, nor what amount
of the notes was deficient ; but the jury found
that the payee at the settlement concealed from
defendant that he had not all the notes : -Hehl,
a defence to this action on his note. McUollnm
V. Church, 3 (). S. .S.5().
An agreement not to proceed in a prosecution
for permitting unlawful gandding in a tavern, is
an dlegal consideration for a note. Dwhjht v.
Ellsworth, 9 Q. B. 539.
To support a plea that a note was given in
consideration of forbearance to proceed in a
prosecution for felony, tlie particular nature of
the charge should be proved. Ihiini v. Little,
11 Q. B. 29(5.
Under 8 Vict. c. 4."), s. 2, a note made on Sun-
day in payment of goods sold on tiiat day, is
void, as between the original parties, but not as
against an endorsee for value and without notice.
Houlliiton V. ParHdiiK, 9 Q. B. ()81 ; Crumhic v.
Overholtzer, 1 1 Q. B. 55.
A note was made payable to tlie treasurer of,
and endorsed by him to a municipal corporation,
to secure a balance due the corporation on a
past transaction, is not void under the Municipal
Acts. 7'ht' Corjioratiiiii of Bfllcnlh' x. Fnhei/, 5
L. J. N. S. 73.— C. a— Sherwood.
J. H. & Sons in Toronto had been in the habit
of drawing on their correspondent in England,
and of covering such bills by shipments of Hour
and remittances. They had largely overdrawn,
and their correspondent had repeatedly requested
them to desist from drawing. In December,
1854, they drew several bills, which they sold
or exchanged for notes, and amongst otliers the
note sued upon ; this note they gave with several
others in payment of their account to (J. H. &
Co., and a few days afterwards failed. The bill
for which the note was given was returned dis-
honoured, and T. H. , the maker of the note, set
lip that it was procure<l from him by fraud
without consideration : — Held, that there was
evidence that the note had been procured by
fraud : that if J. H. & Sons tlrew the bill for
which the note was given, having no expectation
or right to expect that it would be honoured,
they practised fraud in procuring the note.
Guoderham, v. Hutich'mm, 5 C. P. 241.
Action on a bill drawn by K. upon and
accepted by defendant C. , endorsed by K. to E. ,
by E. to D., and by 1). to plaintiffs. Plea, by
C, that he was induced to accept by the fraud
and misrepresentation of said K., E., and 1).,
and without any consideration, and that D.
endorsed to the plaintiffs without any consider-
ation or value given by them to him : — Held,
good, without averring that the plaintiffs were
JioMers without value. Bank of Montreal v.
Cameron, 17 Q. B. 036.
Action by endorsee agpinst maker of a note. —
A plea on equitable grounds that a note was
given as collateral security for a mortgage for the
same amount, and was endorsed over after it
became due by the original holder and mortgagee,
who was proceeding to foreclose the niortfjiiL't in
fraud of the defendant, with full kiKiwlwli'o.
Held, no defence either in law ore(iuitv ,s7,,ir
V. Booimr, 9 C. P. 458.
One W. , as .agent for .J., sold to dcftiiilaiit tw,
lots of land for .flOOO, receiving .§1()0 (luwi, ,,||,j
taking defendant's notes for the Imlaiicu. Tliii
land had been purchased from the ornwn in is,;^
by one W., who had assigned \m liLjIit U ('
and C. to J. The instalments liad nil liutn iiaiij
to government, and \V. told defendant tliat wlun
he did the settlement duties ho could jti^t tlit
patent. He also handed to defendant tliu ;b.
signnients and receipts, with an assignnn'nt frinn
J. to defendant. The lota were then vacant
and defendant soon after went into [lossissioii
and performed the settlement duties, Imt wi .n
he applied to the crown lands department tor hi,
patent, he was informed that the original salt
to W. had been cancelled, as havini boon nji.
tained in fraud of their regulations ; mul t,,
avoid losing the land he again jiin\li;i,<ti| i
it from government for iJooO. in an aitidu
brought by .1. 's agent upon the llotl.^. \\. swun
that he believed what lie toM thu defendant t"
be true, and had no doubt .1. also lidievcl it,
.and there was no proof to the 'jontrary : -HlM
that there was no evidence to sustain a ikfture
on the ground of fraud : that tlitiu was nut a
total failure of consideration; and that thu [ilaiii-
tiff therefore was entitled to recover. W'li'hr
V. Dou,jla.t, 23 Q. B. 9.
In an action against the maker ot a note, tvi
dence was given to shew that defindant was j
induced to give the note upon misrejircsentiitiinis,
on the part of the payee and endorser, as tutbe
formation of a company for the sale of a jiatuiit
right controlled by the payee, the note liting
given in consideration of a share wliieh dcfeii- [
dant was to have in sucli coiniiany, of wliitli j
plaintiff's testator was alleged to lie one ; Imt j
it was doubtful whether ■<ny such coinpany exis-
ted at all, or if so, whether defeniant was ever ]
placed in the position of beeoniiiij.' a sliare-
holder : — Held, that the defendant iiot liaviiig
repudiated and rescinded the eontiact uiiilet i
which the note was given, did not iireclnJi
liini from setting up the defence that it li*l j
been obtained from him by the fiand, nt tie ]
payee, with notice ; and tliat tlie latter had ea
dorsed it without value to the testator : fort!
from the nature of the transaction tliiit' was j
nothing on defendant's part to be reimiliateil ur j
rescinded. WaiMcll v. Jin/nci, 22 ('. 1'. :!li
A. gave B. & C. a note signed ])y hinisE |
which they discounted. When it matured RaiiJ
0. delivered to the hoMer, by way of reiieifil j
a note purp'-Hing to be made l)y A., like Ik j
other note, and which such holder on that laiilj
accepted, and delivered up the old iKite.
being afterwards alleged that the renewal wsj
not signed by A., but by another iierson nitliej
same name, unknown to the holder, and resiJeitl
in a foreign country : — Held, that A. coiilil wl|
take advantage of this fraud : that liis lialiilityl
in respect of tli.e note still existed in ei|uity ■.dl
that tne holder could sue within six years Imil
the discovery of the fraud. Incin v. Frem(i»,%
13 Ohy. 465.
See Bank of Montreal v. finijder, 18 Q. R -tSl
p. 511 ; Brown v. Gordon, 16 Q. B, m,\'^
Campbell V. Bel/our, 16 Chy. 108, p, 531;**!
i)^>
537
BILLS OF EXCHANGE AND PROMISSORY NOTES.
l531;Jf'"'
mHUii, lidiik V. S,iin-<; 10 V,. V. 24, p. Tioi ;
CuiiipMI "■■■ M<'Khn,<,ii, 18 Q. H. (il'2, p. 483.
SeuXU. 4(c), p. -^•A\.
Sec also uext sub-head, 5.
5, ('iinlinijioraiieonn or olhi-r Anirdiirnt.
(a) Aiji'r^inciitu to Hviiiw.
The miikiM' cannot set np an alleged parol
iiLTecmuiit liy the holder to renew the note upon
king paid half the amount. //((//<« v. DurU, (i
Q, B. 3!}().
\ctioii on a note. I'lea, an ai'recnieut that
wlien it hecanie due plaintifl's would renew it for
one Iwlf, and give three months for the other
half; hut tiiat tliej' claimed the whole instead of
h;ilf which tlie defendants were ready to j)ay ;
-,Seml)lc, "o <lefcnco. Hank of U. ('. v. ./o/i(.<
,((i(., 1 r. !!• 185.— U. L. Chai'nl).— Burns.
\etiounn a note, to which defendants j)lcaded,
in siihstancc, that the plaintiti', who at the time
lalil a iiiitc tor the fame amount, agreed on cer-
tain comlitious to renew it from time to time for
three vears : that it M'as repeatedly renewed as
atTeeil; and that when the note sued on became
(hie, ii renewal note and the interest were ten-
dered anil rcfuxed, though the three years had
not expired. At the trial it was shewn that
previous renewals had been made by leaving the
renewal note attlie agency of the Bank of -\lon-
I treal in Cohourg, paying the interest and taking
lull the old note, and when the note now sued
[ ilKin became due, a renewal note and the inter-
Test was tendered to M., the agent of the bank, I
Uhii refused to acce])t the same, alleging he had i
lid instructions. All the renewals except one,
Itliii'h was made with the testator personally,
iTcriMnade at said hank : — Held, that the tender
[tit the renewal note and the interest to M., the
lijjent of the Bank of Montreal, where the note
|fa.< iiayahle, was a sutticient teiuler, as all the
Viler renewals were made there ; and that defen-
lant was not hound to tender another renewal
I the interest, at the expiration of tlie three
Kiiiths from the last tender, as the plaintitt'
ail, liy his refusal to accept the former ten<ler,
fepiuliateil the agreement, and defendant was
lot informed that he would accept such renewal.
pill, also, oiidenmrrer, that the plcivs were bad,
8var\ing the note by j)arol agi'eement prior to
iliirinr V. ralcrwii, 14 0. I'. 538.
(h) To P().ifpoii(' Pni/nniit.
Il'arol evidence cannot be received to shew
|»t a hill of exchiuige accepted payable three
|ys after sight, was not to be paid till a further
Bie nad elapsed. Uradburij v. Olitrr, 5 O.
l;03.
|Plea, th,it in consideration of certain notes of
sertain party being deposited with the plaintiti'
\ a security, the plaintiff agreed not to sue
)on this note until the others should beeonie
-Held, upon general demurrer, plea bad.
hml V. Sttm.m), 5 Q. B. 33G. See, also,
Wn V, Hawke, lb. 5H8.
I'For value received I promise to pay .Tames
Nen and Jacob McQueen, or their order,
i«iim of i;i02.15, cy., to be paid in yearly
Iportioiis :"-Held, that the eflfect of this was
to give two years for payment; and that no ])arol
evidence could beadmitte<l of an agreement that
the money shouhl not be payalde for four year.s,
or until after the death of the |daintill's' father.
Mr<^iii;ii it III. V. Mrl^iiini, !• (^ B. 5.S(».
E,, ludding B. 's note, agreed to take c(dlateral
security by mortgage on road stock, and give
one year's time on the note. W niortgage<l the
stock and assigned it to I'!., but for two years
instead of one. H. refused to carry (uit this
arrangement, and sued on the note, at the same
time holding the security, and refusing to trans-
fer it : 'Holding that it was for the jury to say
whether 1''., by retaining the security, did not
consent for two years. Kniiisy. liill, 8 (!. 1'. 378.
The i)laintift' dechired on the following, as a
note ; " Tlwee months after date, we, or either
of us, promise to pay to Klias S. Heed (the
plaintiff) or .bdm Kraser, his guanlian, at the
l)ost ortice, I'hnbro, £ll!t 17s. , cy., value received
in rent of farm ;" adding a count on an acccumt
stated. It was proved that the defendant had
Ixicn in jiossession of jdaintitt's farm Ix-forc and
after t!ie note was made, v, liich was given for
rent due, anil that the plaintiti' was .abroad at the
time of making tlie note : Held, that evidence
was inadmissible of a verbal understanding that
the note was not to be enforccMl until the plain-
tiff's return, or until he could send a power of
attorney to some one to collect it. Reed v. Reed,
1 1 Q. B. 26.
(c) '/'/(((/ Di'J'endaiil .s/ioidd nut lie Liuhle.
A plea setting up a parol agreement that de-
fendant should not be liable, inconsistent with
the endorsement: on the note, is bad. Jfarl v.
Dun/, 1 Q. B. 218.
Where a man draws a bill to pay a debt, he
cannot set up against the endorsee that the bill
was given upon a i)rior verbal understanding
Initween himself and the plaintiti', that the
<lrawees wouhl not pay unless they chose, antl
that in that event he was not to be liable as
drawer. Aduiii.t v. Tlioniii.t, 7 Q. B. 249.
The jury having found for defendant, on
eviilence improperly received, of an allege<l
understanding that defendant shouhl be called
upon for the interest oidy, a new trial M'as
granted. It was (d)jected that the Church
Society had no power to hold or transfer notes ;
but ; -Held, immaterial, the note being payable
to bearer. Uttiiniiond v. Small, Ifi Q. B. 371.
Endorsee against the endorser. Plea, that the
note was intended to have been made to the
plaintiti" or order, and endorsed by him to the
defendant, to secure a debt due to the defendant
by the maker, but by mistake it was made pay-
able to the defendant or order ; and he there-
upon endorsed it to the plaintiff, in order to
enable him to sue the maker, and on the under-
standing that the jjlaintitt" should have no
recourse against him j's endorser : — Held, a good
ilefence. niiihi v. Oliphavt, Q Q. B. 473.
Peclaration upon a note payable to defendant
or order, and endorsed by defendant to plaintiff
after it became payable. Plea, setting up a col-
lateral agreement that defendant should not be
liable, iu>t alleging it to have been in writing : —
Held, bad. Jlall v. Franck, 4 C. P. 210.
mpp
539
BILLS OP EXCHANGE AND PROMISSORY NOTES.
.Tin
l'^''
11
It
To an action upon two notos against the niakiT
by till! uiidorauu of tliu |i.iyeL', K., the cli'fi'nilant
ueailuil tliat tiie notes wore I'iven wlien lie iiiiil
the jdaintiH' and K. were in i):ii'tiiei'.sliii>, anil in '
respect of transaetionn hetween defeiiilaiit anil
K. as partners and of matters involved in the
said partnership, and witli the understandin,,'
and agreement hetween defendant and K. anil
tlie plaintiff, that tlie notes were to lie held by
K. and the plaintiH' merely as evidence of such
transactions, &,c., and as security for any sums
wliich might be founil due to K. or tlie ]ihiiii-
tiff, on acciiiiiits being taken and Mettleinent
made between them and defendant as partners,
and ujion the terms and condition of such an
a('Count being taken at or after the dissolution
of the partiiershiji ; but that the partnersliip had
since been dissolved, and no such account taken
or settlement made ; Held, on demurrer, jilea
b.ad, for it admitted a good consideration for tiie
notes, and did not allege expressly that tiny
were not to lie sued upon Semble, that it was
also defective in not negativing any other eonside-
ratioii than that ajipearing on its face. Stiill-.-
man V. ) rdijli;/, ',i'2 ij. H. i'M). i
To an action upon a note by an endorsee
against the niakti, who signed the note in his
private eajiaeity, a plea that the ilefeiidant made
the note as president, itc, of a comiiany, to be
binding only upon the companj-, and on the
understanding with the jiayee that there was to
. be no recourse upon the defendant: -Held, bad
as setting up a verbal understanding contrary to
what the maker's signature to the note would
import. I'Jinirt v. Wcllcr, 5 Q. B. (ilO.
A plea that the note was taken for a liabilit-,
of the coinjiany, as secretary of which tli'' de-
fendant signed, and with the uuderstaiu'lng that
they were to pay the same : He'.'i, bad, as
setting up a contemporaneous vclial agreement.
Armour v. (/iilis, 8 C P. MS
To an action by the exi" iitor.-" of V., on a note
made by defendiiit jiii;, .ilile to V. or bearer, de-
fendant set up as a lefeiice, that by his last will
V'. devised to e:tcli of his children, of whom
defendant's vlfe was one, t'i.'iO, to be paid by
his executoi.s as soon as possible ; and declared
that in case he .should advance money during his
lifetime to any of his children on account of such
legacies, a receipt therefore should be sullicieiit
as payment of .so much on account of the sum
bequeathed ; that on the 4tli of .Xpril, IS'iti, the
testator advanced to defendant illOO on account
of the sum devised to his wife, and defendant
then delivered to him the note sued on as evi-
dence of such advance, it being agreed between
them that defemlant should not be called niion
to pay said note, lint that it should lie held as a
receipt for so nnieh of the legacy ; and defen-
dant alleged that he had always been willing, and
had offered to sign a receipt for that sum. 'I'lie
will when produced was in the teriiis alleged,
but a codicil was added, made after the note,
directing that none of the legacies sliouhl be paid
until the completion <if payments on certain
lands due by his sim : -Held, that the jilaintitt'
must recover, for verbal evidence could not be
received of such an agreement as alleged, and
the statement oi the will in defend,
nient with the plaintiff that he shoiilii .-it th.
same disitounted, but should never ■all niinn
defcnd.int to pay it ; and further, that .il'tir it
liccame due it was agreed that ilefetiii;iiit sluiuli
sell to plaintiff' eertan; lands at their rasli vain,
in full satisfaction of all demands by |ilaiiitili
against defeii'lant, and the plaintill' acii'|ituil s.ii.;
agreement in full satisfaction of tlu^ imtc ; I|,.li|,
I. 'I demurrer, plea bad, for the lirst ilcfcinf sit
up was a verbal agreement inconsistiiit witlitlic
note ; and, as to the second, the agnitiiieiit ti
sell the land was not alleged to be in wiitimi
l/()i*)V' V. Siillinni, -Jl Q. H. 445. *'
incorrect. <SV;'(
lilt's plea waij
I V. lii'ckn-lth, 20 (.). JJ. ».
Declaration on a note by payee against maker.
Plea, that the note was made under au agree-
To an action on a note for .*>H(M), ileffndant
pleailed, in substance, that J). Hi Cn. Iiaij om
tracted with defendant for delivery to lilm „i
plaster to the value of S'UOOi), for wluih ilffcu.
daiit agreed, on delivery, to )iay liy ac.«iitiiii;
|). it Co.'s draft at three montlis, ]iayali!i' \„
their own order; that l>. it('o., aftir haviii'
delivred but !?'200 worth of plaster. ri'i[iiisti,1
defendant, who agreed to accept, ami diil airiiii
their draft, upon their agreement that ilLfwulaiit
shoiilil, u|ion its maturity, pay im iiiun; nf ,;
than he had received value in plastir ; tii.i'
theveuiion 1). & Co., being indebted tii pj.'i.itilh
ill !?")(), (MM), endorsed and delivereil \\w ihattsn
acceptcil to jilaintiH's, whoreceiv',! it as siTuritv
for and on account of .said ilebt, with tliu liiil
knowledge and notice <'f the facts lll■l■l■illllt■tll^•
stated ; that when r.aid draft iiiatiiiiil, |l. ,U
had delivered t;, defendant no ninre |ilastiTtliaii
the .said v.ilvieof !<l'(M», and plaintiffs ami |i. iCi
agreed Uiat defendant should only ]iay-"<'JO(l, ■.ml
thv.c defendant should make and deliver to W it
i!o. or order, and 1). & Co. should iiiiliJi>f ami
deliver to iilaintitt's, said note for .'■^NOO, ai.il that
said note should be taken and recuiviil 'ly 1*. i
Co. and plaintiff's upon the same agiooimiitaiui
terms, as to delivery of plaster, as tlio ilral't i'"r
^1, (MM) hail been made and delivcivd uiiiin:~
Held, on demurrer, a bad plea. Ji'm/iil. Cuiiuili'iii
Bank v. Minaker, 19 C. P. 219.
(d) (Hhi-r Vosix.
Evidence of a vei'bal agreement tn allnw tb.
price of lands sold liy verbal agrciiniiit, tn k
set off' against a noti; :- Held inadiiiissihlf, .l/f-
('i)lhtm V. Joncx, Tay. 442.
Where in assumpsit by the hulilfi' uf a m*
payable to A. or bearer mi iIihiiiikI, the maker
pleaded an agreement with \. \\\\"\\ tlio irte
was iiiaile, that it should be held by .\. as ase-
curity for the settlement of their fiitiiro ai'craiiits,
and that it was retained by A. after it \\a.sik,
and then transferred to the jilaintilf, ami tliat«
settlement A. was largely indebteil tn tlii'ilct'en-
dant : Held, bad <m general deiiniiTur, as shew-
iiig au agreement conj;rary to tlio imto; anil
because no demand of payment wa.s alli'j!eil,*
as to shew the note overdue. Ilnrrnj v. tlmr),
1 (), B. 483.
A. being the owner of a schooiior, innrtsigsi '
it to ditl'crent persons, including tlio iilaintiffami
defendant respectively. A. faiiotl, ami R »«* j
appointed his assignee ; and a suit was t'lffl-
iiieiici'd in ClniiO(>ry to nscert'iiii tin' ri'.'lit!' « j
the parties. During the peiidviicy "f the suit,
all the parties thereto agreed tn soil the schiKiner |
to one 0., without prejudice tn tlio issufs raisw, |
for the sum of £1,350, for which siiiii C.'snoW j
511
Ml tl\l' 11*
A. asiii«-
lire iiotiHiiitSi
■ it was ki,
,11(1 that ™
itlic'to-
I'cr, lis sue*-
iKito ; d
ullogcl,)"
II V. (''("'!■
lllllVt!
BILLS OF EXCHANGE AND PfiOMTSSORY NOTES.
542
wiTU tnkon. 'riiu (lefoiKlant, (lesii'tma of piivtici- 1
iiitiii" ill *'• ** soc'Uiitii'S to tlio luiidiiiit of L'40!), |
w.is iillii" (it hy till' otlier iii(irt(j!iig( i!s to taki; ( '. 's
iiiitt's til that iviiioiiiit, <m coiulition that hv siilinti-
tutt'd iiiittM lit lii-t '•"'"' t-'iiili'iHc-il ill lihiiik liy |). ,
((irthes:iim^ aiiioiiiit. whicli liu iliil. '1'Irvsi: imtt's, [
itwasa"ivt'il, slioulil ahiilo tlio n^'^^llt of tlii:( 'haii-
..(•rv «"'it' '""•' i'L'«i'lt "I thu ( 'liiiiR't'iy ileiivc
wastho icjottioii of all the iiioit>,'agi'i's cxifjit !
the likiiiitiil ; tlie iihviiititi' tlii'ii muiiI the iltfciid- 1
,uit I'll his Hilton. The defeliilaiit, aftei- Jilea [
iikaik'h ''>''^' '"-'fore trial, ajiiiealeil from the j
t'liancei y ilt'iree. He ilid not pleail the ;,ii]ieiil ]
.,njj,,liirn'iii eoiitiiiuaiiee : llelil, on the agree- I
iiieiit iHi'l iither eviileiiee inniliieeil. tiiat tlu' !
ibintiU w:is entitled to reeover : j,'iiin.st the ile-
(',>/<
V. S/icrinini/, ,'{
;;lg(ll '
lilaintilia'l
It was ^'''in*
,.lltj oi
i,( tho *«'•• '
le soliimn" 1
aicsraissl.
j(_'.'siwt« !
ifiidaut (111 ln« notes.
t. I'. 37-.',:j«i. j
\sjsiiiiiiisit 1111 a not'.' for i'.")0 liy jiayee against ;
iiiakuis. I'lea, tirii defendants were in iiaitner- '
gl,m mill it \vi:< agreed that they .should admit j
tlu; iilaii'tiil into their tirin on his advaneing j
tll.C.Ki; that defendants in part jierfonnanee
causeil altt'ratiims to lie made in their store, and
tk' iilaiiititi' afterwards lieuame projirietor of the
Biuiu', ami ailvaneed €50 on aeeount thereof ;
and til assist defendants in making sneh altera-
timw, and fur .securing the same to the jilaiiititl',
ileffiidaiits, (in the undorstanding that said note
wastofiinn jiart of the consideration money for
atwiitiiig plaintitl' as a partner, signed said note
fiirtlwafciiimiiiidatioii of the plaintiH', and have
always lieeii ready to receive plaiiititi' as a partner
on his liayiiig the balance of said money ; Imt
iilaintifi' lias always refused to pay such lialance,
(iikoiimc a partner, or \>ay for the alterations
1 mile in ciinseiiuence of the agreement : Held,
pka de.nrly had, as setting up three defences
ftiiuj;iiant til each other, and a jiarol agreement
I |t variance with the note. Ai/iini-ix. Fnn/i i/
[ol., ISy. 15. 4S.").
.\ssiimiisit against the endorser of two notes
Inwk iiy I''. I'lca, that the plaintill' liidd a Judg-
Imi lit and cxccn til 111 against H., and it was agreed
Itliat im the ciidnrseiiient of said notes hy the
Idiitiidant he sliiiuld discharge K from all lia-
|bihty Hiimi said judgment and execution, &c.,
Hhiih he dill not do, iVc. On a special ease
tiituil, it w.as aduiittcd that B. arranged with
lilaintill' that upon these notes being given
(.xccutii in should be withdrawn : thatdefeii-
lant tndiirsed the notes and enclosed them to
ke [ilaintiff with a letter, stating that he was
Vimncd by B. that the plaintiff held an execution
jaiiist him which the plaintiff had agreed "to
Bckirgc hy his giving you the notes, ' that he
lilorsed them on that understanding, and if not
, his ondorscineut must be eraseil. The plain-
T answered, ackuow lodging the receipt of the
tea "(in aeeount of an execution against B.,"
1 stating that further proceedings against him
fculd lie suspended during their currency, but
Idtfaul, (if payineiit he should feel liiniself in
IlKisitim t(i enfiiice execution. No further
nmuuitatidii tonk place between tlieni. These
^shaving heeii protested, the plaintiff issued
f alias ti. fa. upon his judgment :~-Hel(l, that
) Ilka was not proved. Wightman v. JJnnieU,
IQ.B.487. ,
1 by payee against tlie maker of a note.
, on eiiuitahle grounds, that tho plaintiff
^ captain of a rifle company organized accord-
ing to law ; that defendant being a memlicr of it
and a tailor, w.is em]doyi'd to make the nni-
foriiis, wliieh it was agreed between idaiiitiU' and
defendant :dionlil be jiaid for out of tile moneys
('(lining to the said company for their drills
aceoriling to the statute : that in older to raise
the necessary sniii at once, it was also agreed
that a note should be iliseoiinted, to be re(Tuee(l
from time to time liy the moneys so received,
and renewed until paid oil': that in pursuance of
sneh agreeiiK 111 a note was made by defendant
payable to pliiiititl, wliieli was discounted, and
i('(lucc(l by |i;iynient of the nioiiey derived from
the lirst ten days' drill, and renewed by the note
declared niimi, whiili it was understood should
be in the same way reduced, and renewed or
paid oir by the proceeds of the second drill :
that before said drill the iilaintitl' wrongfully
disbanded the company, so that they were
unable to draw any iiiorc pay, whereby, owing
to the lilaintill "s wrongful act, it be(;aiiie impos-
sible to perform said agreement and retire said
note : Held, that the idea allbrded no defence.
Viilitlx. Full/, I '.»(,>. H. 88. Burns.
I'ayee against maker on a note for .SI 01.. TO.
I'lea, that when defendant gave said note ho
owed plaintiff ■'?7">, and plaintiff then re(ine8ted
him to make this note, and agreed to pay him
the dillerenee, and idaiiitill' then accejited the
note (111 that condition, Imt did not pay the said
money, or any part thereof ; and defendant says
that plaintiff is not entitled to to recover njion
that count of the declaration a greater sum than
!<''■> : Held, (111 demurrer, a bad plea, as shew-
ing no defence. Kil/i/y. /.is/-, 18 (^. B. 418.
See II. 4, p. 482.
(i. /'iii/iiiiii/, Kilcdxr, Sii/i.if((rtiii)i and DiKrharijc.
(a) I'niiDiiiit mill Sutiufdrliou.
■\Vhere defendant iiurehased personal property
from the plaintill', and gave him back a niortgago
on it to secure the purchase iiioucy, and agreed
that if default were made in the payment he
would give up the property, and plaintiff should
sell it to pay himself, and give the overplus, if
any, to defendant, and at the same time defend-
ant gave the plaintiff his notes for the purchase
money, which were not to be acted on if the
property were given up ; on default having been
made, the property was given up and sold by
the plaintill' for less than the mortgage money,
and an action was then brought on one of the
notes to recover the difference : Held, that it
would not lie, the notes having been satisfied by
the surrender of the property according to agree-
ment. Siuilli v. Jiiilsoii, 4(). S. 134.
Where a note over due has V)een retired and
settled by a renewed note, it is cancelled, and
cannot be put in circulation again even by the
payee who has taken up the renewal note cmt of
his own funds. -Jones, .)., diss. Ciirillifr v.
FriMi; SQ. B. 152.
Declaration, payee against the maker of a
note for t'.")0, dated '24th December, 1844, pay-
able three months after date. Plea, as to .t'24
parcel, &c., accord and satisfaction, by d<?fen-
daiit accepting an order on the llth of March,
1847, in favour of .1. (J. .Spragge, as re(|uired by
plaintiff'; and as to tho residue, a set-oft : — Hohl,
plea bad; 1. In leaving unanswered the plaintiff's
I ;f
\]'\'
!; '! M..
!
i;
\ i-
■ )
" ■ , ■■■
i :
1
■; 1-
■■■ i ■ i
. ■'' k
ik^U
1
543
BILLS OF FA'CJIANDK AND PROMFSSOliY NOTES.
<n
' W f I
ddim for (lu)lm]^'os for iiini-iiiiyiiidit nf tlic .'in omit
for wliicli tlii^ (inlcr w.w .^ivoii, iliiiiii^' tlu' two
yiiiii'M or iiiori' wliich Imd claiisiil ln'twccn iliu
iimtiirity <'l tliu note iiml tin' tiiiif of ;,'ivinj; th' [
onlir ; iiiiil, '_'. In not ;,'iviii^'iit Icngtli tlic Cliri.s-
tiiiii Uiinii's of .1. ( '. SpruKKLN or Mtatiii^' tliiit lie
was MO (li'.Ncril)i'(l in tlic ordtT. /'Iin/Or v. i
Turin r, T) (>>. H. T)").'..
Axsinnjwit ]>y tlio iiHHif;n('i'« of a baiikruiit on
ft note niatlc liy ilifiinilant, payalilc to one W. I{. !
K., ami ciKlorHi'd l)v liini to llic^ liaiiknipt licforc I
liis iKuikruptcy. Vlo.is, I. 'I'liat It. W. !•". .lid '
Hot ondorsi,', '2. I';i>nii'nt liy difcndant wiion
dit", tiiit not stating to whom; ,'?. I'aynuinl;
liofore action to l)aidinii)t JH'fon; l)ankru|itcv, in |
full Hatisfai-tioii of all I'aiisis ami rights of action, i
&L'. ; Meld, on dcnnirrcr, tii'.'<t pica liad for the [
variance in the name. Second and thinl pleas
good. Miioii \. (',„,k; !»(,>. 15. -.'(il.
Klidorsces against in.ikers and endorser. I'lea,
that lieforc jilaintifl's got the note it was de-
livered to II., and liy Idm to the plaintill's as
security for certain moneys and flour to lie de-
livered by II. to the iilaintill's ; that after it
became due, and while in ]daintiirs' possession,
H. and the ])laintill's had an accounting together
in which this note was included and satislicd,
and plaintit's afterwards held it only as agents
for II. : that while they so held it, the makers
accounted with II., and satislied this note to
liim. The plaintill's rcjilicd, tiiat they received
the note from the endorser ; absipie hoc that it
was delivered by H. to them f(U' the s]>ecial
|.iirpose mentioiie<l : Held, replication bad, as
tendering an innnaterial issue. (i(h/i r/iiiiii it nl.
V. lAumm, 13 (l R. L'88.
The plaintiff sued defendants, IT, M. &S. ,as
joint makers of a note. H. & M. did not appear
and judgment was signed by mistake against all
but afterwards set aside as against S., who
pleaded, '_'. That a judgment had been obtained
in this suit agjiinst .-ill three ilcfcndants, and si t
aside as against S., but undei' tlic li. fa. siieilout
npon it the sherill' ha<l seized goods of II. & M.
iiiiirr IIkiii KiilJicifiit tn sat'infij lln' Jiti/i/iiir ill and
costs, and that he bad niadetliereout t'")0, and still
held ^'he rest of the goods, out of which be could
make the residue : - Ilehl, '_'. That an applica-
tion to strike out the nii/ues of H. &, M. from
the record, so that they might be called as
witnesses for S. , wa.s i)roperly refused. 3.
T'.iat the second plea was not supported, tlie
evidence being that all the goods seized brought
only £9 at tiie sale. Qua're, whether the plea
fctrmed a good defence. 4. That if by taking
judgment against the defendants not appearing,
the plaintitl's, under ('. L. I'. A., s. (iO, had lost
their remedy against S., that objeotioii ccmhl not
be taken at the trial, but the proper course waa
to move to stay proceedings. Semble, however,
that the plaiiitill' had not elected within the
meaning of that clause to proceed against the
others separately, the judgment against S. hav-
ing been set aside. Kerr it, al. v. /f, irforil i-t
nl., 17 Q. B. 158.
Action by enilorsees on a note made by L.
payable to defendant, i\. W., and endorsed by
him to defendant, I''. \V. Tlie pleas were, in
substanuc, that the plaintiffs .accepted from G.
W. another note in satisfaction of the note sued
on : — Held, ou the evidence stated in the case,
that this defi'ncc w.is not proved, Wlnn,,,
,t nl. v. /,;/,-.',' .(/., 7 ('. 1'. 4o;».
In 'in ai tion by the endors.ic against tin- jk«ii.
tor ol a liill not appearing to have been a'ci'titnl
lor the ai'commoilation of the drawi i, ;i |,|,.^„|
l>aynicnt Ity the ilrawer is no difinrr, iiiij,,,
shewn to have been made on tiie .icifiitiii',
iiecount anil adopted by liini at the llinc of |,,'iy
nient or subseipieiitlv. />'(///■ <//' .Mmilruil \
.■\riiKwr, ;»(■. I'. 101. ■
heclaration on three notes given by ffstiitnnr
bis lifetime for f'JI .'is., t'M, and C l(» iiln., mun,
lively. I'lea, that after the testator dud ^ubl
tlie notes fell due, the iilaintill' ami dclciiilum,
accounted together ami struck a li.iiaiia', fur
which defemlants gavi; their lioiid to pay dut
of tiie first moneys they shonhl iii i Ivc 'fri,i|r
the estate within eighteen months ; llcjij, \n,\
as not shewn to be given in s.-itisfactioii nf t|„!
notes or of crossdeinands, and tliciifciiu ni,)
more than a iiayment jiro tanto for tlic niiiniim
of it. .Miiir V. Linrrii' rl al., I I ('. I', -.'."i^.
To ftti action on certain notes and liiljs ni ,.y
change, and on the common counts, af;;uii,<t
defeml.'int as jointly li.ible with one II., di.tVu.
(hint pleaiU^d satisfaction and diHcliaigc nf iiLiji,.
till'a claim before action, by e.xcciitiii;.' witji ||
an assignment of their joint ellect.s tn jilaintiif
and another for the benetit of creditors, and timi
plaintiff accejited this in full satisfactimi ainl
discharge of the causes of action in i|Uuatii,ii.
At the trial parol testimony was adnjittudnf tin-
.•igreeinent to accept the assignnunt in satis-
faction and discharge ; - Held, that it iiaii luiii |
jiroperly received, the effect of it heiii;; ikjI td
vary the terms of the writing, but iirtiIv t" I
prove a collateral fact. W/iilmi/ v. Wall \'f
V. 474.
To a deeliiratiou on a judgment rocnvmil |
against defendant in the Court of (,ltiut'ii',s Ikiuli
tor damages and costs, defendant pkadid tliat
the judgment was recovered upon a iintiMii.iilr
by (lel'emlaiit, payable to tlii^ oriler nf nnc Siult,
who endorsed to one Scanlon, wlio ciKlnisi.ilun.l
delivered to idaiiitiffs, who bccanie and Hurttlit
holders at the time of the recovery of said jiiil^'
ineiit : that defendant made the iKite and Sm-
Ion endorsed for Scott's accoininodatinii, ainLi*
his surety, to secure a debt due frniii liiiiitu
plaintifi's, .and that when the note was iiiailr,
endorsed, and delivered, it was agreed liitflnii
defendant, Scott, Scanlon, and plaintill's, tint
defendant and Scanlon should be li:ildu tknvii
to plaintill's as sureties for Scott, and tliatts
(;ej)t as aforesaid there w.as no value or iiinsiiier
ation for the making, endorsing, or iiuynniitiJ
the note by ilefendant or Scanlnii ; that .Siiti
having made default in payment nf liisiltlt.
phaintiffs sued Scanlon as endorser, aiul mw-
ered juilginent .against him, being the saint iWit
for which the judgment declared iiiiim in tti-
action was recovered, and Scanlmi iifterwanli j
and before .action s.atisticd the amount "f tke
said judgment and costs by payment tn plaintiffi,
and therewith and thereby jiaiil and satislieii |
plaintiff's cl.aiin in respect of the c:ui.se (if action I
m the introductory part of the plea ineiitioiietl : j
— Hehl, on demurrer, a bad plciu Jliuiktiji
('. V. .1/p/wc, 18 C. P. .100.
A., being sued upon a note by the excciitotjol j
W., as bearer, pleaded that R, the attinj
executor, being the holder, accepted su da j
,545
BILLS OF EXCHANGE AND rROMlSSOUY NOTES.
I'iSi
n^G
(\rftw" l>y <"'" '*• "" '''"'• '" fcvinir of M., for
»•,",() lUid tli:it M. lieiliK the (It'ft'iuluiit'H iigoiit, it
was' Hi;'''-''''' l>t'twcL'ii R iiiid M. tliiit tlm iidtu
slidulil hv I'iiiil "Kt of tilt! t.V), hikI !■'. tliL'nni]Miii
winct'llt'il siiiil iioto. 'riiu uvidoncii sliuwt^d timt
(Icli'ii'lftiit went witli tlio onlor t(i I""., wliioli K.
(laiil 111; Wduld aucL'pt, uiul pay tlic iintu nut of it,
liiit tliti't' wiiH no iiuocptaiicu ill writing, thii notu
WW iiiit givi'M "I'l "I"' till! order was olitaiiiud
Juji, 8II11IL' iiioiiths after by M.'h uxututor :
Held tliivt file iilaiiiiiH's were entitled to rueover.
||;,«;,w,, ,/ al. V. Mai-Kfinlf, '20 (^ K. '.>m
Declaration on a note made by defendant jiay-
able til the order of S. 'I'. & Co., and endorsed by
'tlitiii t(i lilaintill'. I'leaa : 4, that the note wan
mailfliy ilefeiulant for the aueoniniodatioii of the
iiavui;s to raise money thereon, and endorse the
iiiiiie t'l their own use before its maturity, and
not otherwise ; and that there never was any
v;iliie i>r consideration to defendant exeejit an
aliiresaiil; that the payees endorsed and nego-
tiatcil it with the (. (ininicreial Hank for their
uwu use ftcoording to said terms ; that it waH
afterwards protested, and S. T. & Co., on lichalf
of (lefemlaiit, subsequently paid it to said bank,
ami it was then returned to S. T. A. Vo. , by the
liaiik fur uiiil on account of defendant; that S.
'I'. & I'd, afterwards, and in fraud of defendant,
tirst ciiiliirsi'd it to jilaintiir. The .Itli plea was
similar ti) the 4tli, only that it eoneliided ''lus :
"Amis. T. & Co., without defendant's auihor-
itv, tirat endorsed the note to plaintiff after the
laymeiit and discharge :"--Held, on demurrer,
[iliaa good. J'ypcr v. McKuy, KiC. 1'. G7.
Declaration against ]{. & H. for goods sold.
Pita, hy defendant II., on uipiitable grounds, in
jiilistaiice, tir I. he and Ii. pureha.sed the goods
while i.iiartu^i.aip ; that afterwards he retired,
W, taking his place, and II. & W. assuming the
delits of the old tirni, including this claim ; and
that the iilaiiititl', bein^ aware of this arrange-
ment, took the note ot the new tirni, 1{. & W.
for his deht ; Meld, a good plea. W'att.i v.
l'MMi)iulaL,3-2(i. H. 302.
'I'he third plea alleged that the plaintiff had
notice of the iirrangenient as in the former plea ;
ami that, in consideration that W. would assume
the ILihility of H. for this debt, the plaintiff
accei!ted K. & W. in place of defendants, and
tmik their note, and relinmiished bis ulaim
.igaiiist H. ;— Held, good. 7/1.
The fourth plea averred satisfaction of the
plaintiff's claim by the delivery and acceptance
^ofthenoteof U. & \V. : — flehl, clearlygood. Ih.
In the absence of express agreement to that
f tflcct, a creditor taking the note of one partner
|fur a debt of the partnership, and suing thereon,
ih\ failing to recover the amount of the note,
|i8 not precluded from afterwards claiming the
|«mount of the note against the partnership.
|C'(im((/ieM V. Ardaijh. 20 Chy. 570.
J. C. and T. A. formed a partnerahip under
ityle or firm of "C. & A." Both parties were
iiUiterate and unused to business, and in giving
Mies for debts of the partnership were m the
jhabit of each signing his own surname, thus
Ifonning the par.nership name. One of such
Inotes king almut to fall due, and the partner-
■hip heiiig unable to retire it, the holder agreed
"^ m&v it; and he, together with C, eiidea-
35
voiiri'd to find A. to procure his signature in the
usual way to the new note, but being unable to
liiiil liiiii, ('. gave his own note f(U' an amount
Hullicicnt to cover the old note and an account
f(n' goods furiiislii'd the liartnership by the holder.
Thi.s note being iiiipaiil, an action was brought
by the holder against ('., and a small portion of
the ainonnt reali/cd by sale of his goods under
execution. Sulise(|Uently a suit was brought by
C. against \. to wind up the partnershi]!, ,uid
the holder of the note sought to prove for the
amount of the note against the partnership
estate, which the master refused to allow, ana
oil appeal his order was allirnied. The holder
thereupon reheard the aitpeal motion : Held,
that the holder, by the proceedings he hail taken,
was not precluded from claiming the amount
against the iiartiiership assets. Hlake, V. C,
diss. III.
(b) //// Miriji-r.
Where a person, having a note of a third party
endorsed by the debtor as security for a portion
of his debt, takes a mortgage from his debtor for
the whole sum due, not referring to and payable
after the note, and with the usual covenant to
pay the money : - Held, that the remedy against
the debtor on the note is extinguished. Mut-
llirirmiii V. Ilnni.tt', I (),. H, 272.
l'",iidorsee against the maker of u note. I'lea,
that with the note a mortgage was taken by the
payee, with a proviso for its payment according
to the tenor of certain notes bearing even date
therewith, payable to the payee, of which this
was one, and was endorsed to the plaintiff after
it was due : Held, bad, as by the terms of the
mortgage, it was evidently taken as collateral
security only. Miirnii) v. Milhi; I y. IJ. 3.53.
Hehl, on the facts stated in this car-!, that the
niortg.age was clearly no merger, the right to sue
oil the note being expressly reserved. Voiiniivr-
citil linuk v. Viirilliri; IS (). B. ;178.
Defendant endorsed to the plaintiffs a note,
made by one P., due on the 13th of May, I8r)7.
On the 13th of April 1'. executed to the plaintiffs
a mortgage, payable on the Ist of November,
I8r)7, for a sum including the note ; but it was
expressly agreed in the iiuu'tgage that it should
operate as a collateral security only ; — Hehl,
that the plaintiffs might sue ujion the note when
due, although the mortgage was not yet payable.
Sliaw V. Crair/ord, Hi i). B 101.
Defendant owing phiiiitiff a large sum on
bills, some overdue, some maturing, gave hin-
a mortgage on land, reciting the debt on the
bills, and the plaintiff's agreement to accept
further security by way of mortgage, and contain-
ing a proviso that it should be void on payment
of the bills, and that on default of payment for
twelve months the plaintifl' might, on giving six
months' notice, enter and sell the lands. The
mortgage also contained a covenant to pay the
bills. Ii\ an action on such covenajit, with counts
upon the bills : — Held, that there was clearly
no merger of the claim upon the bills. (Joir
Bank v. Eaton, 27 Q. B. 332.
Held, that the mortgage in this case being ex-
pressed to have been given as further security,
and providing that it should stand as security
for any renewal of the bills sued on, was collateral
if
i i
h
lis'
k
647
BTLLH OF KXCHANOK AND PROMISSORY NOTES.
(Piily, iiiit IV iiiurger. '/(»)''■ /Uiid' v. Mi-W'liiiiir,
IHC. I'. •-'»;<.
Held, ivIho, tliivt till! ruiiiody oil tlio Miietiulty
and »iiii|il«' t'oiiti'iu't not liciiig I'o-uxti'iiHivu or
liutwuuii tlu'Hiviiu; piUtioH, till! doctt'iiii) (it mergur
did not u|i|>ly. Ili,
Held, upon tilt' di^iilH, pIcudiiigM, and fiictH,
aw givun at length in tlii^ Ntatcnu'tit of tlu^ caHii.
that tliu di'fi.'nd.iiitH, (MmIoixith, witi' diHclmrgi'd
from the iiott'M mii'd upon, (tlioiigli not ho intun-
dud liy the plaiiitittH,) liy tlif plaintilln liiiving
taki'ii fioin tin; nuilicf a inoitgagi' ot certain
Hti'aniliouts, with a jiowor of Hah' in eaMo of de-
fault in the payiiietit of the notes, anil upon
whieii the plaintitlH had wold the lidatw to third
jiarties for thi! amount of the dilendaiit«' lialiili-
tie« on the iioteH, giving eiedit to the pnirhasers
for the pnrehasi! money, and taking their noten
and a mortgage on the name hoals an Hceurity.
Jinnk of li. S. A. v. .loii<.'< ,/ „l., 8 (l li. 8(5.
The oflect in equity of the iiiHtniments whieli
cnniu ill (jiieHtioii in tlie la.ft ease eoiiNidered,
and lield liy the Chaiieellor t(< he the same,
as that ease deeided it to lie at law. I'er
Eston, v. t'. -The etl'eet in eijuity is a mere
transfer of the rights of the iiank as mortgagees,
and per Spragge, \', ('. The etleet in eiiuity is
prima facie an ahsolutu sale of the notes and
steamlioat, not siihject to redemption ; and the
plaintitl's to do away with this ellect must im-
peach the deed, which was iiou done l>y the hill
in this case. Sluriruod v. Hank r</' li. y. A., 'A
Chy. 4,17.
The holder of a mortgage security may take
in addition a note from the mortgagor with an
endorser ; and the fact that the time mentioned
for the defeasance of the mortgage is a period
beyond the maturity of the note is, in the ahseiiee
of fraud, no tlefeiice to the endorser. Ihnik of U.
C. V. Shi-nt-uvil, 8 (l B. Ilti.
To a declaration on live bills by endorsee
against the drawer and acceptor, thedrawer, \V'.,
pleaded that after one of the bills became pay-
able, and while the others were running, it was
agreed that W. should mortgage certain lands to
secure all the bills, and that twelve months from
the date of the said indenture should be given
to defendant for payment of the same, and
all interest, damages, &c., by reason of the iioii-
payiiieiit. The plea then set out the mortgage,
whereby, — after reciting that the defendant SV.
had drawn bills upon and accepted by defendant
P., and of which a portion was overdue, which
bills were endorsed by W. to the plaintifl's; iinil
that the defendant, being unable to pay said
bills, had agreed to make this .security to M. (one
of the plaintill's) to secure them against the non-
payment of the said bills, — in consideration of the
premises and of os. W. conveyed to M. (one of
the plaintiffs) certain leasehold property, subject
to a proviso that if t.aiil W. should retire the
said bills, and pay unto the said firm of the
plaintitl's, or the parties legally entitled, all
sums of money, damages, &c., by reason of
said bills, within twelve months from the date
of the said indenture, and if he should then
indemnify the plaintiffs of and from all payments,
&c., by reason of the premises, then the mort-
gage should be void, &c. ; containing also a
covenant by W. to perform the covenants iii the
said proviso, and a proviso for possession until
default : — Held, that such mortgage was only a
file
collateral Hecnrity for the bills : that tliiiv «
no merger; and that the plaintitl's might mv
the bills lieforo the expiration
iiiontliH. Hum it til. V. nil
of
5('
tllu tW
I'. IW
iil»,i,
Tlie plaintiff hcdding defendant's luitc, tiik,.,,
chattel mortgage, intending it as a rulliit,,.,
security : Held, that the right to siic i,,, (|*
! note was extinguished. J'arHii' v. .Mrin,,"-
i(;. I'. ll'4,
j The jilaintitf sued defendants, H. M. A s «
joint makers of a note. H. & M. did luitaiiiHa,
and judgment was signed by miftakf aKiiiiintiil'
but afterwards set aside as against S,, v,'\)„ ,,\''!
ed : 1, A mortgage given tor the saiiiu iiinmv
by M., M. and S. being sureties for II. ;- \\^u
1. That the giving a mortgage by M., „i,i.„f,|„
two sureties, did not of itself iliscliargu S. th
other surety. 2. That an applicatimi tustrilit
out the names of H. fi M. from the m:„n\ *,
that they might be called as witiiessuH fcrV
was properly refused. Kirr <l al. v //,
it III, 17 (i. B. 158.
■rrjuni
H. & I'd. holding several notes of V., all nvw-
line except one, take a mortgage fur the tiiul
amount thereof : -llehl, that the reincily imtiu
notes was extinguished. Frii.ii'r v. Aringlrm
to V. V. 500.
n
Declaration on three notes given hy tostithr
in his lifetime. I'lea, that after tcstatur ilie,l
anil the notes fell due, the plaintitl' and (kfcn-
(hints accounted together and struck a Imhintf,
for which defendants gave their lioiui, td \a\n\\\. I
of the first moneys they should receive frcnii tlit
estate within eighteen months ;- llcM, lia,!, aj I
not shewn to be given in satisfacticm of tliu iiotij |
or of cnjss demands, and therefore diiiy ii nay.
ineiit pro tanto for the amount of it, Mnir v
Lawriiet at., 11 (J. T. 252.
A debtor gave to his creditor a mortgage ami I
notes for the same debt, payable at tht.' pane
times, and no allusion made in either iiistnimtnt I
to the other. The creditor subseiiueiitly iiassdl
both instruments to separate parties, as collateral |
securities for debts. Upon ejectment for an
instalment on the mortgage, the defuiulantpruveJ i
the facts, and that he had paid the note given
for the instalment :— Held, that the plaintiff j
was entitled to recover. .Senible, that the iwte
merged in the higher security. Fuinnaii v. Mm-
hi'i', 7 C. P. 407.
A cognovit payable immediately, given liy tlie
maker of a note before it fell due, and judgiiitBt
entered upon it and registered, foriiis no dtfence |
for the endorser. Bank of Munlmil v. Dumb,
17 Q. B. 208.
To an action on a joint note made by M. and j
K. , each pleaded separately, that after the note j
fell due, M. by indenture covenanted with tie j
plaintitl' to pay him *311), (a sum less ijyJiSIl
than the amount of the note,) with interest at j
15 per cent., in one year, and delivered Miilin-
denture to the plaintitf, who accepted it ; anJ j
that the money mentioned in the deularatioiianii j
ill the indenture was the same :— Held, \
cood, though the indenture was not alleged to j
have been accepted in satisfaction, and the sim j
secured by it was less than the note. Mdd\
V. McKay, 20 Q. B. 258.
Held, that in taking a mortgage for jl,300, uJl
subsequently a note for $1,353.75, there couldl* |
no merger. Bank of U. V. v. Bartktt, 12 C. P. 2» j
5iO
BILLS OF KXriTANOK AND PROMTRSORY NOTES.
/)/50
Defendant owing the ijliiiiititroii liillsuinl iiotcn,
...yiiti'il to liiiii IV niitrtxiifj'i! fnr the luiuiiiiit,
wliicli tlu' pliviiititf iii'c'cjitcil nil (IclViiiluiit'H
i-eni'iitiitioii tint it whh h first cljiiiii oii tlu'
J„l Imtoii si'iiri'hiiiK lit iiiifi; he fidincl ii iirior
•iimliriiiii:i', anil tolil lU'fiiinlaiit Im wtiuld not
iwcept tiif MinrtK.igi' : llfl.l, that iilaintiH' w.uld
(ittliort.'"!"'!""'^'*'" ''''^' ""■'K""i' <'aii»i'"f actimi.
!'' , .iiiiulit at lcii«t Imvi! tuiiih^ri'il a ic-coiivi'y-
;;|;,e. A,l„n,^ V. AV/.,.//, ■-'•-• i}. H. lili).
Votidii nil a note for $:\'iO. I'lun, that the
iidte hinl iH't'ii tal<t^n rts collateral to a iiiDrtxaK*',
iiisiitinfaitidii iif which ilefeiiilant iviid iilaiiitill'
hill ciiiiif to a settlement, unci ilcfciidant had
irivcii a i"^^^' mortgage fur what he owed the
Siiiiititf, ill which the note had thus hccoine
lUcrKeil ' Held, that the note haviii;,' hceii taken
),,. t|„, pliiintitl' aB iiayinent of part of the niort-
iiu-e mill tluiH sejiarated from the inortgagi
lilt' the lilaiiititl' was entitled to recover ; and
that' friim tlic evidence stated in the case it
aimeftrtil that the note was given for a sum (plite
ilistiiict fri'in the mortgage duht. Hoiillon v.
Mubh, 14 C. r. 51)8.
.Sou next sub-huud.
W) till I'l'rriiiiiii Aclioii iir /tccoiyri/.
Action ou a noto and hill ivgiiinst two of the
siiaial partnurH of a partnershi]) formed under
the Limited Liability Act, 12 N'ict. c. '/.">, M'ho
I hail jointly made the note ami ivccente.l 'die hill
k the acciimniodation of the geiii.i.i. .lartner.
Ikfenilant iileaded a prior judgment recovered
uiiiiii iuid taken in full ' isfivction of all the
(auJi'9 of action in the dc laraticii mentioned,
lijuiistthe yoncral partner iihmc :— Held, that
1 tk recovery against one of several joint coiitrae-
1 tors Iterated as a merger at law of the inferior
Ireineilv of action for the siimo delit. /fol/mrcll
\\.ih-ihmHi'liil., SC. r. '-'1.
Plaintiff sued defendant aa maker and A. as
itiiilorser of two notes, adding a eimnt for inter-
ttst; ami at the trial, to support this count, he
jffereil in evidence a written undertaking signed
ly ilefenilant, and a similar one liy A., to iulow
m interest at the rate of thirty per cent. , until
Bvinent, in cousideratiou of the plaintifl' allow-
ing three luouths time. The learned judge ruled,
M, the action heiug joint, evidence of a separate
Biability against either defendant could not be
ieceiveil, and the plaintiff thou took a verdict
jainat both dcfemlants for the amount of the
|ot«8 and interest at six percent. After judg-
keut had been entered upon this and satistied,
1 sued defendant, on his undertaking to recover
pfenty-four per cent., the balance of interest
led to be paid by it : — Held, that the judg-
lent recovered was a bar to any further claim
Ir interest upon the same notes. McKay v.
VMQ. B. 268.
ll'pon an action by the endorsee against the
liril endorser of a bill ;— Held, that hnal jud^;-
int in a previous action on the same bill, m
lich all parties thereon were sued and served,
pd judgment of non pros, not signed, or a dis-
Jntinuance entered as to any,) but in which the
icial endorsement and judgment only shewed
awe of action against the drawer and acceptor,
not prevent a separate action against the
doner. Bank of U. C. v. Lhars, 11 C. P. 176.
Declaration on a note \m\t\v. by A., jiayable to
H., (defendant) I'Mdnisi'd liy him to ( '. . who
ciidnrscd to !»., who endorsed to id.iintitl' ; and
on the eommiin rouiits. I'lcas, tliat s.'iid note
lii'ful'i' it liei',11111' piyalde w,m ciidorsril liy pliiin-
till to one. I. II. ('.', who ciiiloiscil tiiS.' II. II.,
who elldiiisiil it to the ( 'oliililil'rial ll;ilik, who
were the lioldcrN when it niatureil, iiml iintM the
recovery by del'i'inlaiih of iv jiiil;;nnnt upon an
action l>i'ou).<ht by the s.iid bank ; and that the
notice of disholioiii' alleged to have been given
iiy plaintiir to difeiidant is an alleged iintiee said
III have been given by the ( 'ominercial Hank to
defeiulants in their suit, and no ntiier notiee ;
and that defend, mt in the suit between the bank
and himself recovered a jiidgmeiit against the
bank, and th.it plaiiilill had notiee of the action
between the bank iiml defendant, lirfore he
became the holder of the note; Held, on de-
murrer, bad, tile action lictwecii the liank, the
original holder, and the defeiidaiit being no
answiM' to an action by any other party on the
note who was a siilisiM|Ueiit holder to the defen-
dant. Sniilli V. liinii,!,, lie. 1'. TiX
It is no dtd'ence to an action by " ' >rsoe
against the maker of a note, lliat a prior em'' ■ i e,
while the holder ami before the idaintill' toui it,
recovered judgment against defeiidaiit and the
payee. Mrljinmin \. McMuiiii.s, 123 < V B. lit.
Kndorsee against endorser. V , that the"
payee had before suiid defeiidanf and the maU t,
and obtained a verdict again^^t the make:, i.nl
that by a rule of (.'"'irt it vv.is declared ^'lat i uo
pi'Vee was not intitled t' recover ag.iinst il"''i nd-
ant. The evidence sheweil tiiat the payee
having sued the maker and defendant, the juuge
ruled that he could not recover against defendant,
whereupon defendant's name was ordered to bo
struck out of the record : Held, that neither
the payee nor the plaiiititl', who sued on hi.s
behalf, was barred from ]iroseeuting this action.
Sinilh V. RU-hanUiii, K! (J. T. 210.
Declaration, on a noto by ilofendant payable
to plaintilV. IMeas, on enuitable gnuinds, in bar
to the further maintenance of the action, aver-
ring the pcndeney of proceedings commenced by
plaintiff against the defendant, under the Insol-
vent Act of 18(i4, for the same cause of action,
subse([uently to the declaration in this cause ; —
Held, on demurrer, plea bad. Jialdwiitv. I'cfcr-
ma„, 1() C. P. 310.
>ycoBii!irrll\. ,Sfn>itnn, Tay. Stili, p. .504; Moore
V. Aiii/ri'int, ISC P. 40<'>, i>. 'y'y'2; lydch v. Liitrh,
II Chy. 81, p. oGl ; Cinii/ihcll v. llolmcx, 21 Q. B.
40.'), p. r)t)().
(d) sd-off. ; .
^^^^crc the plaintiflF, eiidfirsceof a note payable
on demand, had taken it two years after its
date, and was cognizant of an agreement between
the holder, from whom he took it, and the de-
fendant, (the maker) tha*: the same should be
set oft' .against a bond, of which the defendant
was obligee, and the holder obligor : — Held, that
a plea stating these facts was good upon general
demurrer. Jimoke v. Arnold, Tay. 25.
Where a note of a judge of a District Court
was placed in the hands of an attorney for col-
lection, and he agreed to give the judge credit
|:|;
|j'i|;i
m
551
BILLS OF EXCHANGE AND PROMISSORY NOTES.
oo2
|i
on the note for fees payable by him for busi-
ness done in the Court, and did endorse part
on the note as payment, and subaecpiently the
whole amount was paid by such f'les, but the
attorney refused to credit more than the sum
first endorsed, and afterwards absconded : —
Held, in an action by the owner of the note, that
the judge could not give the payin 'ut by fees in
evidence against the plaintiff. Keta, am v. Powell,
3 0. S. 157.
To an action on a note the defendant pleaded
a set-oflf for goods sold and delivered, imt the
evidence shewed that the set-off claimed was for
goods sold to plaintiff by defendant on a special
agreement that the plaintiff should pay a third
jjarty for them, and not the defendant : — Held,
that the goods so delivered could not form the
subject matter of a set-off, but that the plaintiff
ought to have been sued on the si)ecial under-
taking. MatthewKon v. Carman, 1 Q. B. 26(5.
If the holder of a note sue the maker and
endorser in a joint action, under 5 Will. IV., c.
1, the separate debt of the plaintiff to the maker
or endorser cannot be set oti' under a joint plea
of set-off. Paterson v. Huwlmn, 2 Q. B. 139.
A sold to B. certain goods, and a claim on one
C. of £25, taking a horse in payment for the
goods, and B. 's note for the claim. B. took from
A. an order for the goods on the warehouseman
in wtiose charge they were, but on presenting
the order ho was unable to obtain them : — Held,
in an action by A. against B. on tlie note, that
the defendant might set off the value of the
horse. WrUjht v. Cook, 9 Q. B. 605.
To a plea of a set-off on a note : — Held, that
the plaintiff, under a replication of nunrjuam in-
debitatus, might shew that the note was given
by him to the defendant while they were in
partnership, to raise money to pay off a debt of
the firm. Milkr v. Thompson, 10 Q. B. .191.
Held — 1 . That set-off by endorsees against the
holder, was no defence at law or eipiity, upon a
note given for the accommodation of the endor-
ser. 2. That the endorsee of an overdue bill or
note is liable to such equities only as attach to
the bill or note itself, and to nothing collateral
due from the endorser to the maker, or endorsee
to payee. Wood et al. v. Ross et al., 8 C. P. 299.
Held, that in this action againsu maker and
endorsers of a note, upon a plea of set-off by
two of the endorsers, the jury, under the evi-
dence set out in the case, could only give them
a verdict, but could not find for them any sum
beyond the note. Xoivlan v. Spawn et al., 16
Q. B. 334.
Action against executors on a note by testator
payable to S. or bearer, and by him transferred
to plaintiff. Plea, that the note was transferred
to die plaintiff after the death of testator, and
that S. at the commencement of the suit was
and still is indebted to defendants as executors
in an amount equal to the note, for, &c. ; — Held,
plea bad. Smith v. Xicholson et al, 19 Q. B. 27.
In an action by endorsee acfainst maker and
endorsers, a plea that the note was made and
endorsed to third parties, ■''h sent it to plaintiffs
for collection ; that such third parties, before it
fell due, were and are indebted to defendants in
more than the amount of the note, and became
insolvent, and plaintiffs are suing fdr ami m
collusion with them to deprive (Tcfuinlauts iif
their set-off; — Held, bad, on the autiiority of
Ould V. Harrison, 10 Ex. 572. MdromlitM
Bank v. Snur,'. et al., 10 0. P. 24.
In an action against the maker and endorser'
— Held, that neither could plead se|iai-atelv i
set-off not arising out of or connected with'tb
note, lluijhes v. Snurc et al., 22 (.). ]i. "jt);.
Action on a joint and several luito. Setdif
by agreement of a separate demand. I )emurrer
Equitable pleading. Holmes v. McLian () l, j
216.— G. C— Cooper.
Upon action by A. against M. on a iinte iVr
^340, in the county court, the defendant jileadel
on etpiitable grounds, a joint and sevonil iintj
made by the j)laintitf an(l three others, iiayahlt
to defendant for $1,000, averring a suit bnnitht
against the makers thereof, and offering tn set
off and allow so much of A. 's liability uikhi thii
instrument as would cover his claim in this
action, Upon demurrer : — Held, that the niaxiis |
"nemo debet bis vexari pro nna et ('adi'in laiiM
did not apply against the plea, and that it wis j
good. Moore V. Amlrews, 13 C. V. 40").
On a sale of lands the purchaser gave his mm j
for the balance of purchase money, anil reoiivtil
a conveyance containing the lal oc eiiiuiti i
There was a mortgage on the jn'opeity at tlii
time for a sum less than tiie note, andtlieiinrf
chaser claimed tv> set off against the note dam- 1
ages he had sustaineil by being unable tn ii-sili
+lir land in consequence of the mortgage :— Helil,
not allowable. Stevenson v. ffodiler, \5 (.'hy. ,");o.
See McCollnm v. Jones, Tay. 442, ji. ,>4(3; Ev
hvrtson v. Moore, GO. S. (ilti, p. ."jiO ; (!nH-'{m\
Bail J-'Umher Co. v. Thotnpson et al., ,3,") Q. R. lUj
p. 533 ; Parsons v. Crahh, 34 Q. B. 13G, p. jj:,f
(e) Time given for Pai/iniiit,
Dise/iar(je of Acceptor or Malvr.]— One onw\
joint makers of a note cannot plead that te
made the note with the knowleilge (if ilie [iLiiii-
tiff, the endorsee, only as surety for the otk I
maker ; that the plaintiff gave time te tlic irtk j
maker without his knowledge or ooiiseiit ; atJ f
that he was thereby discharged. Dur'dm^.i
Barf left, 1 Q. B. 50. See Ball v. OihsoiklC,
P. 531.
A joint acceptor of a bill canmit heheiiniwj
say that he was surety for the other ai
and is on that account discharged hy tiniegival
to his principal. N'aji^s v. Soule.% 2 C. P. 4ii
Action on a note made by defenilants piyaMtJ
to T. or bearer, and by her delivered to jila
Plea, on equitable grounds, by one of tlieilej
fendants, M. , that he niiule the note .is a suretjl
for the others ; that after it became due, I, ii|
consideration of a certain sum paid to her, m
tine to them without his, M.'s, consent; aofl
that plaintiff took the note after it beca
due, with knowledge of the premises i-Htlt
good. Perky v. Loney et al., 17 Q. B.'2I1
Plea, setting up a similar defence :-Hell|
bad, as shewing only a mere forbearance to m
cipal debtor, not a binding agreement to m
time. Thompson v, McDonald, 17 Q. B. 3W
553
BILLS OF EXCHANGE AND PROMISSORY NOTES.
554
\ replication that when the time couipiained i on this leave, and
(ifwas given it was expressly understood and j for a new trial (
iiirreeil that the plaintiflFs should reserve all their
rii/hts against the acceptor :— Held, good on
.iLurrer. Bank of U. C. v. Jardlne, i) C. P. 332.
ilemurre
Decl.iration on a note maile by defendant and
endowed by one M. to plaintiffs. Plea, on
equitable grounds, that the defendant was surety
f('rM., antl made the note for his benefit, with-
out Value, of which the plaintiffs became aware
after they became the holilers ;,;.orcof, and after
notice thereof gave time to M., and thereby
released defendant. On demurrer, held, bad.
Bmkof U. C. V. Thomas, 11 C. P. 515.
Endorsee agai 'ist maker. Special plea on eijuit-
able grounds, held good on demurrer, on the au-
thority of Bailey r. Edwards, 9 L. 'f. N. 8. (540,
as averring that the plaintiffs gave time to an en-
dorser, knowing that defendant was only an
accommodation maker. Bank of U. C. v. Ockcr-
man, 15 C. P. 3C3.
Action by endorsees against the maker of a
flote payable to J. W., !)y him endorsed to(r.
\V. ami liy li. W. to plaintiffs. Plea, that .1.
W.'endorsed the note to O. ^V. for safe-keeping
only, and not to be negotiated, and (1. W. so
received it ; but after it fell due, and without .T.
W.'sauthiirity, he endorsed it to the plaintiffs,
who then had notice of the premises ; and that
while J. W. held it, and after it fell duo, he, for
value, gave time to defendant for payment until
a (lay after the commenoement of the suit : —
Hehl, after verdict, a good plea. BntUm v.
FUhn, 2(i Q. B. 338.
Diichafiie of Entlorscr.] — A plea by endorser
(if time given to the maker must shew that the
plaiutitf was then the hohler. Coninu-rcial Bank
V. JohMtoii, '1 Q. B. 12().
One A., holdinga note endorsed by defendant,
agreed with the maker that upon payment of an
extra amount of interest he would take another
note at a longer date ; all the extra interest
except .?3 was paid. The note being then sent,
was refused, on account of the non-payment of
the balance of interest. The maker of the note
afterwards declined giving the note. Upon an
action brought by the holder against the en-
dorser of the original note, held, that he was
released. Arthur v. Lier, 8 C. P. 180.
a cross rule by the plaintiffs
on the evidence. This court
made the latter rule absolute, but on payment
of costs bj' the plaintiffs, as the whole iiitKculty
had been caused by their going to trial on an
insutKcient plea : — Semble, that if the evidence
had supported the plea, the rule to reduce would
have been made absolute, an<l the plaintiff
•allowed to move for judgment, non obstante, —
following Lumby v. AUday, 1 C. & J. 301.
Commercial Bank of Canada v. I/arris et al.,
27 Q. B. 52().
The holder of a note sued maker and endorser,
and after execution placed in the sheriff's hands
against both, the plaintiff, upon the application
of the maker, extended the time for payment of
the amount, without the consent of the endorser :
— Held, a discharge of the endorser. VanKouijh-
ni't v. MUlu, 5 Chy. (553.
Declaration against the Oshawa Manufacturing
Company as makei-s, and G. as endorser of a
note. Plea by endorser, that it was agreed
between plaintiff and the makers, by their
president, without the consent or knowledge of
the endorser, that the plaintiff should give the
makers time for payment of the note, ii\ con-
sideration of interest at £14 per cent, which the
mdiers, by their president, agreed to pay for the
extension ;— Held, a good defence. Farrdl v.
Qiham Manufacturbuj Co. et uL, 9 C. P. 239.
To an action on notes against maker and en-
dorser, the latter pleaded a set-off in the com-
mon form for work done by him for the plain-
tiffs,— a plea held bad on demurrer in Hughes v.
Snure, 22 Q. B. 597. The plaintiffs, however,
did not demur, but took issue, and on the trial
the jury found the plea proved. A verdict
I having been directed for the plaintiffs, with
i leave to move to reduce it by "-e amount of set
(f) Statute of Limitations.
The right of action on a note payable to A.
j or bearer, docs not accrue to a third person aa
bearer till an actual delivery to him ; and when
C, being in the United States, purchased a note
payable to bearer, and on his coming into this
province got possession of it : — Hehl, that the
cause of action accrued to him when he received
the note, and not when he made the purchase.
Shaw V. Matlhison, 3 O. S. 74.
Where a witness, tlfe payee of a note payable
to bearer, antl transferred to the plaintiff, proved
a promise by the defendant, the maker, suffi-
cient to take the note out of the statute,
but could not identify the note as the one to
which the promise applied, and it was not al-
leged or suggested that there was any other note
in existence between the parties : — Held, that
the not having identified the note was no legal
defect in the evidence of the witness as to the
promise to pay, and that the identity of the
note was to be presumed. Beynolds v. O'Brien,
4Q. B. 221.
A promise to pay by one of several joint
and several makei's oi a note, will take the case
out of the statute of limitations. Si/ton v. Mc-
Cak' et al., 6 Q. E. 394.
Held, that the following expressions of the
defendant, ' ' The notes are genuine ; that is, I
made them ; but I am under the impression that
they were paid through Messrs. A. and B., and
I don't think I am called upon to have any
further conversation with you about them," were
not sufficient to take the case out of the statute.
Grantham v. Powell, 6 Q. B. 494.
In assumpsit on a note, defendant pleaded the
statute of limitations. At the trial, the plaintiff
proved the following acknowledgement by the
defendant: "I received your letter dated Jan-
uary 31. I am sorry to say I cannot do any-
thing for you at present, but shall remember you
as soon as possible :" — Held, not sufficient to im-
port a promise to pay on request. Oemmell v.
Colton, 6 C. P. 57.
Payments made by one of two joint and seve-
ral makers will not take the case out of the
statute as against the other, unless made ex-
pressly as his agent and by his authority, and
roved, a rule was obtained by the defendants \ such agency must be proved by the puuutiff
1 itVH(t „,
':V,
mi
t .1
Mi
!i'';-i
I
I
i
555
BILLS OP EXCHANGE AND PROMISSORY NOTES.
Ill '
I
I
apart from the fact of payment. In this case,
there being no snch proof, a nonsuit was ordered
as to one of the two joint makers, and the
verdict allowed to stand as against the other.
Creiyhton v. Allen et nl., 26 Q. B. 627.
Held, that a memorandum in writing signed
by the maker of a note, admitting the amount to
be due to the payee, which in the opinion of the
court was sufficient in an action by the payee to
prevent the operation of the statute, enured to
the benefit of a subsequent holder of the note.
Marshall v. Smith, 20 0. P. 3.56.
Action on a note made by defendant and L. ,
payable to C, and by him endorsed to plaintiff,
due in July, 1859. Plea, statute of limitations.
To take the case out of the statute, the plaintiif
proved that one T. C, owing the defenilant ^30,
got an order with defendant's assent from C,
who then held the note, on L., recjuesting L. to
pay defendant |30, which lie, C. , would credit
on the note ; and this sum was accordingly so
paid, and credited : — Held, clearly a payment by
L. on his own account, and not by or for defen-
dant, so as to take the case out of the statute as
against defendant. Cowing \. ^(«rp«^ 29 Q. B.
427.
The limitation provided by 12 Vict. c. 22, s. 31,
as to debts due in liower Canada must be
specially pleaded, and cannot be proved under a
plea of payment. Kimj v. Glatinfunl, 1 1 C. P. 490.
Held, that the parties being residents in Up-
per Canada when the notes payable in Lower
Canada were made, when they became due, and
when they were dishonoured, the 12 Vict. c. 22,
s. 31, did not bar the plaintiffs' recovery ; and
that that statute applies to the remedy, and not
to the contract itself. Richards, J. , diss. Jlcr-
,'ry el al. v. Pridham, 11 C. P. 329.
An endorser of a note, made, endorsed, and
payable in Lower Canada, who was resident in
Upper Canada, was sued there as such endorser,
after a lapse of five years from the maturing of
the note ; the period prescribed as that within
which an action must be instituted upon a note
or bill of exchange in Lower Canada : — Held,
that the plaintiff was not entitled to recover ; the
lapse of time under the statute operating as an
extinguishment of the debt, without suit, not as
a bar to the remedy only. Sheriff v. I/otcoinh,
2 E. & A. 516, affirming Sheriff v. Jlokombe, 13
C. P. 590.
To an action on a note made by defendant,
payable to A. H. , and by him endorsed to the
plaintiffs, defendant pleaded that it was made in
Ix)wer Canada where he resided, payable in
Montreal, and that the suit was not brought
within five years after it fell due. The plaintiffs
replied, that when the note was made and en-
dorsed to them, A. H. lived in Upper Canada,
and at the time of said endorsement one plaintiff
lived in Upper Canatla, and the other i the
United States. Defendant rejoined that after
the note fell due, while A. H. held it, and more
than five years before suit, A. H. carrie<l on
business in Lower Canada, that he and defend-
ant met at Montreal, and A. H. might then have
sued him :— Held, on demurrer, that by 12 Vict,
c. 22, the note, owing to the lapse of time, must
be taken to be absolutely paid and discharged ;
amHhatthe plaintiffs could not recover. Hervey
et al. V. Jacques, 20 Q. B. 366.
A., residing in Upper Canada, made a nots
there payable to B., also a resident of Upper
Canada, at the Bank of British Nortl) America
in Montreal, and B. endorsed it to tlie iilaintifFs
who carrietl on business in Montreal. Xejtber
A. nor B. had ever resided in Lower (,'anatla
12 Vict. c. 22, B. 31, enacts that all notes payablt
in lyower Canada shall he held and taktii to be
absolutely paid and discharged, unless amd uiKm
within five years after tliey became duo : — Held
reversing the decision of the Q. 11, fdumieij
upon Hervey /'. Jac(iues, 20 Q. B. 3(;(>, that the
plaintiff, suing here after the lapse of five years
was lot barred. A. Wilson, J., diss. Darliii'i
v. Ililcheork; 28 Q. B. 439, in appeal. .See al<i,
,S'. C. 25 (J. B. 463.
Draper, C. J., held that the statute, beiiij
applicable to Lower Canada only, did not change
the limitation of actions on contracts uiaile in
Upper Canada by persons resident tlieie ; aiiil
that this note being payable in Montreal, with-
out any limitation of not otherwise or elsewhere
was payable gener.ally, and so not within the
statute. Tlie rest of the court proeeeiled upon
tlie latter ground only. S. C, 28 Q. B. 439.
Declaration on an agreement to pay .%50bya
note : l)reach, uoii-paymeut. Sixth plea, set-off,
on two notes made by plaintiff', and endorsed t<i
defendant. .Seventh plea, in substance : that
the same set-off was pleaded by the defendant
in a former action by plaintiff against him for
the same causes of action ivs in this suit ; and
the plaintiff not having replied thereto, and the
defendant being in a position to sif,'n judgment
of nou pros it was agreed that the jilaintitf
should pay defendant .^20 and costs in full settle-
ment, and in case of non-p.aynicnt, th.it defen-
dant should be at liberty to proceed fi)r the
recovery thereof in said suit ; and that plaintiff
accepted said agrceineut in full satisfaition and
disidiarge of plaintiff's claim. The iilaintilf re-
plied cijuitabiy ; 2. That defendant waived the
agreement by giving the plaintiff notice of his
intention to enter judgment of iion pros iusaiil
action for want of a replication, and accepting
his costs of defence : — Held, replication b.id, for
by the agreement defendant was entitled to loree
the plaintiff on as he did. To the sixth ple.1 of
set-off, the plaintiff replied ; 2. The .Statute of
Limitations. The defendant rejoined in sab-
stance to the second replication to the seventli
plea, that in the former suit, the same subjettJ
of demand and set-oft" were in dispute; that tie
former suit was commenced on the (ith Deoeu-
lier, 1802, and was kept i)endiiig until the plain-
tiff, on his owni mere motion, discontinued it on I
the 8th Octolier, 1868 ; that when the plaintif
commenced this suit on the 9tli October, 18l)S,tlie j
Statute of Limitations had operated against tke J
set-off ; and that the defendant on the 15tli
March, 1869, and within a reasonable time, to I
to wit, within one year from the discontinuance j
of the former action, pleaded tlie said set-offii j
this action : — Held, that the rejoiiukrw.iSLwl j
for that in this province a set-ofi', on which tk j
defendant may recover a balance, is as nioii |
within the e(iuity of the statute as an action for j
the same demand would be. To the fourtlj
rejoinder (above set out) to the second replia- j
tion, of the Statute of Limitations, to the seven'
plea, of set-off, the plaintiff surrejoined;
That the two notes were drawn and payable ill
the Province of Quebec, and by the law thai |
557
BILLS OF EXCHANGE AND PROMISSORY NOTES.
558
i
the cause of action thereon became extinguished
after live years from the accruing thereof, and
that such cause of action became extinguished
DcmlinK the former action:— Hehl, bad as a de-
parture. rurxoHs V. Cmhh, 34 Q. B. 136. See,
idso, S. C, 31 Q. B. 435.
iiee Irwin v. Freeman, 13 Chy, 465, p. 536.
(g) Other CaufH.
Where a stackholder in a joint stock company
hail given notes for his stock, which he after-
wards forfeited by not complying with the con-
ditions of the association : —Held, that he could
not set up such forfeiture as a defence to an
fiction ou the notes for the benefit of the com-
pany. GhM^ford V. MfFunl. T. T. 3 & 4. Vict.
Where, in trover for notes against the maker,
it appeared that the notes had been given by
him on a purchase of land : that the payee after-
wards agreed to deliver them up to him on a
goml consideration : that afterwards, and before
their delivery, the payee assigned them by deed
to the plaintiff, the notes theuisolves being in the
possession of a third party ; and that the defeu-
Jaut afterwards received them, having first had
notice of the assignment; and, no fraud having
been shewn, the jury found for the defendant :
-Held, on motion for a new trial, that as these
facts would have constituted a good defence in
an liction by the payee on the notes, the verdict
was right, in the absence of proof of fraud. A new
trial was therefore refused. Umall v. Bennett,
T. T., 3 & 4 Vict.
Endorsees against endorser of a note. Plea,
that before and at the time when the note be-
Kime due, and at the commencement of the suit,
J; the plaintitJs, as bankers and agents, had in their
[ hands divers sums of money of tlie maker amount-
lhigto£500, and were then indebted tothe maker
I in that amount, and that the maker then directed
I the plaintiffs to retain to their own use the
lamount of said note out of said moneys, which
lexceeded the amount of said note, &c. : — Held,
Iplea bad, among other reasons, for not averring
|(lie particular time when the direction was given.
Mimkof Um>n- Canada v. Lewis, 3 Q. B. 325.
Assumpsit ou common counts. I'leas, as to
lf'2'2T, parcel, &c., that the plaintiflFs in payment
|cf that sum drew ou intestate in favour of M.
i): onler, which defendant as administratrix
Accepted; and that after such acceptance, and
nirhile M. was the holder, he, M., cancelled the
Bid bill and returned it to defendant. Kepli-
ation, that M. received such bill as plaintiff's
gent ; that while he hehl it, defendant being
intitled to certain insurance moneys for the loss
if the gowls for which said bill was drawn, and
t being customary for plaintiffs in such cases to
iceivethe insurance moneys, and apply them
I the payment of the goods, and M. being
rare ut such custom, and presuming that the
isurance moneys would be received by the
laintiffs, returned the said bill to the defendant
I cancelled, without intending to discharge de-
pdaut uuless such insurance money shouhl be
»id ; that said insurance moneys were not paid
phtintiffs ; and the price of said goods ami the
l! still remains unpaid :— Held, replication batl.
f«l»ii\: Lijon, AdniinistralrtJi:, 16Q. B. 194.
[^Declaration upon four bills of exchange for
'^ «ach, drawn by K., H. &> Co., upon one
J. C, payable to and endorsed by defendant.
Defendant pleaded, 1. Payment; 2. An assign-
ment made by J. C. to one T. P. , for the benefit
of his creditors, with plaintiffs' assent and con-
currence, and that T. P., with the consent of
J. C. and his other creditors, conveyed and
assigned certain property to the plaintiffs, and
plaintiffs accepted such conveyance and assign-
ment in full satisfaction of the causes of action
in the declaration. The plaintiffs replied, on
ecpiitable grounds, that the property assigned was
not ecjual to tlie wlwdo of .J. C. 's indebtedness to
plaintiffs, and that plaintiffs accepted the same
on account of such indebtedness with defendant's
assent, and that the proceeds of such estate are
still applicable to pay a portion of the causes of
action against defendant, to wit, £500, with a
nolle prosecjui as to that portion ; and defendant
promised to pay the residue of defenilant's in-
debtedness to plaintiffs over and above the said
£500. Upon (lemurrer, held, that the executing
of an assignment by the holder of a bill, without
a special reservation of rights as to sureties, dis-
charges them ; and that the pleadings shewed it
was the plaintiffs' duty duly to administer the
assets of J. C. in their hands to be applied upon
the bills declared on, ami until they had done
that, lU) cause of action accrued against the
defendant. For all that was shewn by the
pleadings, the assets in plaintiffs' hands might
cover the bills sued upon, and therefore the
replication was bad. Commercial Bank of
Canada v. Wilmn, II C. P. 581.
Held (attirmiug Hamilton r. Holcomb, 12 C. P.
38), that where the holder of a bill or note sues,
under the statute, the drawers, acceptors, and
endorsers, in one action, he may discdiarge the
drawers or endorsers (or accommodation accept-
ors) after an arrest under a ca. sa. , without losmg
his remedies against the other defendants liable
in priority to those discharged. McLean, J., and
Draper, 0. J., diss. Jlo/comhv. Hamilton, 2 E.
& A. 230. See, also, Hamilton v. Holcomb, 11
C. P. 93, to same effect.
The holder of a bill for value, though having
subseijuently liecome aware of its being an
accommodation bill, may release tlie drawer
without releasing the acceptor. Viti/ of Cfkunjoio
Bankv. Murdock, 11 C. P. 138.
In an action by a second indorser against the
maker and prior indorser on a note, the maker
suffered jutlgment by default, and the indorser
pleaded that the note was given by the maker to
one H., to whom the maker was indebted, and
endorsed by himself and plaintiff as sureties for
the debt, and that upon action brought by H.
against all the parties thereto, the plaintiff paid
the same, and thereby released all the other
parties from their common liability. Upon de-
murrer — Held, no defence, for the facts shewed
no release. The question of contribution lietween
plaintiff and defendant as co-sureties did not
arise upon the pleadings. Niblock v. McGregor
etal., 12 C. P. 56G.
Declaration on a note made by defendants P.,
W. , & D. , jointly and severally, payable to plain-
tiff. Equitable pleas, 1. By delendant D. , that
he made the note as surety for defendant P., of
which the plaintiff was aware when he took it,
antl that after it became due, the plaintiff', with-
out bis knowledge, by deed released P. there-
from. 2, By defendant W., that be and defen-
»t
•^TF
559
BILLS OF EXCHANGE AND PROMISSORY NOTES.
dant D. made the note for the accommodation of
P., as his surety, to secure a debt due to the
plaintiff solely from P. : that it was delivered to
and accepted by the plaintiff from the defendants
upon an express agreement that W. & D. should
be liable only as sureties ; and that the plain-
tiff, without W.'s consent, by deed released P.
Equitable replications, 1. That the pleas each
refer to the same deed ; that at the time of
making it P. was indebted to the plaintiff in
$250 on an account stated, as well as for the
amount of the note ; that it was intended and
agreed only to release the $'250, and not the
note ; that for the purpose of so confining tlie
deed the plaintiff ad(led after his signature
thereto, "^'ioO, not any sureties on tliis ;" and
that the note was not included, or intended by
defendant P. or by the plaintiff to be included,
in the debts released by the deed. 2, That the
release was drawn and executed by mistake, the
intention of the parties thereto being to execute
a consent only to a discharge of P. under the
Insolvent Act of 1864, and it should liave been
drawn so as to operate in that way only, and not
as a discharge of any sureties : — Held, on de-
murrer, that at law the first replication would
be bad, for the words added formed no part of
the release, and it therefore set up oral matter
to qualify the deed ; but that on enuitaV)le
grounds it was surticieut : — Held, also, that tlie
second replication was bad. Fowler v. Pi-nin el
«/., 25 Q. B. 227.
Declaration against defendants as executors of
one K., upon a note for $2,600, made by K.
on the 17th of September, 18()7, payable to
the plaintiff, or bearer, four montlis after date.
Plea, on equitable grounds, that the plaintiff in
1869 brought an action against K. on a note for
$5,000, alleged to have been made by K. , payable
to plaintiff : that after K. 's death the case was
revived against defeiKlauts, who pleaded tliat
the note sued on therein was not made by K. :
that such cause of action was settled befiire trial
between the plaintiff an'l tlie defeailants ))y a
compromise, and defendants paid $2,000 in full
satisfaction of the plaintiff's claim on said note ;
and the defendants averred that this settlement
was agreed upon as a compromise and settlement
of all claims of the plaintiff against K. and his
estate, and upon the assertion of the plaintiff
that the claim in said action was his whole and
only claim .against such estate. Replication upon
equitable grounds, that the agreement mentioned
in the deed is in the words following, - -setting
forth verbatim a deed poll executed by the plain-
tiff, whereby, after reciting that the plaintiff
had commenced an action against the defendants
upon a note for $5,000, and that it had been
agreed "to avttk mid xuit " for $2,000, the plain-
tiff for the consideration aforesaid, released the
defendants and the estate "from all the pay-
ments of said note, " and from all costs connected
therewith, and the prosecution of said suit.
Rejoinder, upon equitable grounds, that the
release set forth in the replication was executed
by the plaintiff and accepted by defendants, and
the moneys therein mentioned agreed to be paid
and paid, upon the plaintiff's assertion and
assurance that the claim in said action in the
plea mentioned was the whole and only claim
against the estate of K,, and it was only on the
faith thereof that defendants accepted the said
release, and agreed to pay the said money.
Upon demurrer to the rejoinder, and excep-
tions to the plea and replication : — Held, 1. That
the rejoinder was bad (1), as admitting that
the agreement, alleged in the plea to have Itten
a compromise of (ul claims, was the ddcuinent
set out in the replication, which was contined t(j
the other suit, and yet relying on the avfrnieiit
tliat such compromise was procured liy tlie phiiii.
tiff''8 assertion that he had no other claim ; and
(2) because the compromise of a claim upon the
idaintitf 's assertion that it is the oidy one will
not of itself form an equitable defence to anothit
claim, the right to recover in respect of wiiich is
not otherwise contested ; 2. That tlie replication
was bad, as it admitted that the ounipromise
which was stated in the plea to include all claims'
was the release set out in the replication, which
was confined to a particular suit, and as (jtleriiii!
no answer to the plea ; 3. That tlie plea itseli
was bid, and open to the exceptions taken td it
Kiiiij v. Miller et al, 22 C. P. 450.
See X. 2, p. 504.
7. Other Defences.
In an action by the last endorsee against the I
last endorser of a note, it is no defence that the
names of the maker and of the prior ciulorserj |
are forged. Eastwvod v. Wextlei/, 6 U. IS. "w.
A replication to a plea stating that a bill hi. .
been taken in full satisfaction and at all hazards I
by the plaintiff, that the bill was dishuiujureJ |
when due, is bad on general demurrer. O'uWiV
v. Maxwell, H. T. 4 Vict.
Commissioners for a turnpike trnst appointed I
under a statute limiting their powers with re- 1
spect to demises, and to tlie collectiuii and aij-
propriation of rent when due, made ailoiiiisel
beyond the scope of their powers ; the tenant is I
put into possession and enjoys this term ; the |
commissioners at the expiration of the tfrm, I
take a note from the tenant for the amount uf I
rent, giving time for payment : — Helil, that tlie I
commissioners by their clerk, could not sustain |
an action upon such note, because the commij-
sionera hail no power, though tlie demise were I
legal, to give time for payment of rent alreaJr J
due. Robinson, C. J., diss. Jnlnml v. (Iml
etal., 3Q. B. 220.
Defendant delivered to the wife, since (leceased, I
of the plaintiff, a note in payment of a legacy le- 1
({ueathed to her, and she died before pajiiienl;|
— Helil, that a plea that the wife as payceo'tlie|
note had died before the plaintifl' had r«W|
the legacy or note into possession, and tliatli(|
had not ailministered to his wife's estate, finl
good answer to the husband's action on thenottl
Rohimun v. Cripps, 6 U. P. 381.
Held, on demurrer to the e(piital)leplea«
out in the report of this ciisc, tliat apart fronitl
objection as to a perpetual injunction not 1
obtainable, the holder of notes, transferred I
the payee a^ collateral security against a I'uti
liability on the holder's part for the parie,
can collect the notes at maturity hefore t
liability arises, and that the payee cannot cnl
or vary the maker's liability to pay tlieni:-
Held, also, that the plaintiff, wlio held then
endoi-sed to him in olank, as his father's a
could as such agent, sue upon them in his o
name. Jtonn v. Tyaan, 19 (J. P 2H
XIV. L\DEMNIT\
; ,1-1 I
5G1
BILLS OF EXCHANGE AND PROMISSORY NOTES.
um
Held that an equitable plea to an action upon
1 note, that the plaintilf had covenanted to pay
ilefcmiaiit's debts, which covenant he had broken,
whereby defendant was danuiilicd to an amount
equal to the amount of the note, is bad, and
will be struck out as embarrassiuL'. Griffilh v.
(,Vi|/i'/', •) !'• I^' 172.— C. L. (;hamb.—G Wynne.
Where the maker of a note was sued thereon,
and instead of r:dsing the defence at law, that
the note had been given without consideration,
save as to part, pleaded that the plaintiff in the
action was not the holder of the note, and a ver-
(lict was rendered against the defendant for the
full amount thereof, for which execution against
lauds was suod out and placed in the sheriff's
hands, whereupon the defentlant in the action
tiled a bill to restrain proceedings at law. A
demurrer for want of equity was allowed. Leitch
v.Lft<f/', llChy. 81.
XIII. Frivolous Demurrers.
For instances of frivolous demurrers in actions
on bills or notes, See Bank of Montreal v. Hop-
ilrf 1 y. K- 'tis ; Commercial Bank v. Dcn-
I xtml'u; 1 C. L. Chamb. 32 ; Bank of Montreal v.
I Dim] 1 C. L. Ohamb. 37 ; M'dhurn v. Smith, 1
Ic LChamb, 54 ; Ward v. Street, I (J. L. Ohamb.
\]-i; Parkfi- V. Clark, IP. M. 133.
XIV. Indemnity or Contribution between
Parties.
Where the defendant drew two bills on Eng-
Ihiul for the accommodation of the plaintiffs'
Ikinkers, who endorsed and sold them here,
iiriiig the defendant a draft payable in England,
% meet them, which defendant transmitted to
be drawee of the bills, an officer in the customs,
» whom it was discounted before it became
he, and the money placed by him with the
ibhc moneys left in his charge, from whence
Irt of it was stolen ; and in consequence, one
I defendant's bills came back protested and
iu paid by plaintiffs : — Held, that although
■was an aecoumiodation transaction, the drawee
Tb defendant's, not plaintiffs', agent, and the
ifendaut was responsible to them for the
Bount of the bill. Trancott et al. v. BilUinjn, 5
U. 529.
EA. and B. gave a joint and several note to C. ,
^0 endorsed it to D., B. signing as surety for
I ; and an action was brought by the holder
juiist A., B., and ( ., for the amount of the
ttc, which was paid by B. , together with the
fis of suit ;— Held, that B. was entitled to
«ver the amount of debt paid by him, being
here surety, and also a moiety of the costs as
^ly liable, Bhkex. Harrey, 1 C. P. 417.
^ction by one of several accommodation eii-
lers against another for contribution on
dal agreement— Statement of consideration,
B cause of action— Special demurrer — Decla-
lonheld insufficient.. Dempaeii v. Miller, 3
If. 431.
n endorser of a note cannot pay the amount
i judgment obtained thereon against a pre-
u endorser, and enforce it for his own benefit.
^88 contended in this case that the judgment
hot enforced for the benefit of the endorser,
I of a person to whom it had been assigned,
-Held, that upon the affidavits and facts
36
stated this was not made out. Carr v. Coulter,
2 P. U. 317.— C. L. Chamb.— Burns.
(i. made a note to 8., who endorsed it. DeG.,
1)., and W., also endorsed it. B. discounted the
note, which was sued, and judgment and execu-
cution obtained against all the parties to it. W.
satislied the execution, whereupon Cr. and D.
paid him (he having been a mere accommoda-
tion endorser) S. and De(i. contributing nothing
towards the payment. (J. and U. tliereupon
applied to B. , under 20 Vict. c. 45, ss. 2, 3, for an
assignment to them of the judgment so obtained
by him, in oriler to levy from S. and DeG. their
share of the liability. This B. refused, S. and
l)e(J. having informed him that by agreement
they were to be reliovetl of liability :— Held, on
application by (r. and D. for an order to compel
B. to assign to them the judgment under 2G Vict,
c. 45, ss. 2, 3, that the court had no power to grant
the order. Brown v. Oonsage, 15 P. 20.
The holder of certain accommodation drafts,
after having obtained judgment and execution
against the payee thereof, was paid the amount
of them by the accommodation acceptor, and
thereupon expressed his intention of directing
the sheriff to credit that sum on the execution
in his hands, the amount of which he had made
by sale under execution of the goods of the payee
for whose accommodation the bills had been ne-
gotiated. The acceptor hearing of this gave the
sheriff' notice of his claim, and filed a bill to
compel the payment of the amount which he had
advanced : — Held, that as surety the acceptor
had a right to receive the amount of his claim
out of the ju'occeds of the execution, to the
exclusion of the subsequent execution creditor.
Bii/nry V. Vanzamlt, 5 Chy. 494.
Plaintiff endorsed notes for W. B., since de-
ceased, which were discounted at two different
banks. To indemnify plaintiff against these
endorsements \V. B. mortgaged certain real and
personal property to him. 'The notes were sub-
secpiently paid when due, at these banks, with
the proceeds of other notes of W. li, , endorsed
by plaintiff', and discounted at a third bank :—
Held, that the indemnity secured plaintiff' against
his endorsements at \V. B. 's request, on paper
discounted at the thii'd bank to keep outstanding
the amounts of the former notes. Burnham v.
Btirn/iani, 10 Chy. 485.
Semble, that the indemnity given to an en-
dorser will protect him against liability on any
other securities, in whatever shape, to which he
may become a party at the request of the maker
to keep the amounts of the notes outstanding.
Burnham v. Burnham. 10 Chy. 485.
The accommodation endorser of several bills'
and notes obtained from the maker and acceptor
thereof a conveyance of certain lands by way of
indemnity against such endorsations. Certain
of these bins were subsequently endorsed by
another, and were discounted ; and such subse-
ipient endorser, on the bills maturing, was
obliged to retire them. On a bill by the second
endorser claiming to have the benefit of the
trust by having the estate administered, and the
amount so paid by him to retire the notes re-
funded : — Held, that he was not entitled to such
reUef : and, Qusere, whether, under the cir-
cumstances, h^ had a right to claim such relief,
subject to the grantee in the deed being relieved.
j . 1-
5G3
BILLS OF EXCHANGE AND PROMISSORY NOTES.
an
m
I
Ik, ■ !
HI
%
1 1
from all liabilities incurred on the faith of it.
Smith V. Fralkk, 5 Chy. (il2.
As between aeuouiiuodiiriou endorsers, the
court will enforce tlic right ot contribution, us in
cases of otlier co-sureties. VUjiiicrUm v. Spttti-
ijtte, 15 Chy. 209.
Where a firm of two or more endorse in the
partnership name, the liability as sureties is a
joint liability, and not the several liatnlity of
each partner. Ih.
Where two persons endorse a note for the
accommodation of the maker, and the second
endorser knows v/hen he endorses that the first
endorser is, like himself, an accommodation
eindorser, he must share et^ually the loss occa-
sioned by the maker's default. Vucklnini v.
Johnston, 15 Chy. 577.
Accommodation endorsers, like other co-sure-
ties, are liable to mutual contribution, unless
this liability is controlled by contract ; but such
a limitation, if stipulated for, is binding. Mitchell
V. Engliih, 17 Chy. 303.
A note, endorsed by B. and C. for the accom-
modation of the maker, Ijeiug overdue, the
maker, to provide funds for taking it up, pro-
cured anotlier person, D., to endorse lor his
accommodation a new note, and on applying to
his former endorsers for their signatures, untruly
stated that he had sold gooils to D., who wouKl
be in funds to take up the note at maturity.
The note was taken up by D., who was the Hrst
endorser : — Held, that he was entitled to con-
tribution. McKdvi'ij v. Duv'is, 17 Chy. 355.
D. 's suit for contribution was not brought for
five years, nor until C. had become insolvent : —
Held, that B. must sliare with D. the loss : that
he might have had his liability ascertained, and
might have paid the amount before D. sued. 1 b.
Held, that where first and second endorsers on
a note have, in fact, endorsed as mere sureties for
the maker, the second not expressly stipulating
for any right of recourse against the first, tlie Hrst
endorser, having paid the note, is entitled to
contribution against the seconil ; and it is imma-
terial that the tirst endorser did not endorse on
the faith that there was to be another emlorser,
or that the second endorser believed that the
first would be liable to him, and believed, also,
that he (the tirst endorser) was a partner witli
the maker. Jannon v. Paxtoii, 22 (J. P. 505.
Where one 1. , at the reipiest of the plaintiff,
(the tirst endorser) took up the note, and the
plaintiti' afterwards repaid him : — Held, that this
was a payment ))y plaintiti' in discharge of the
liability which he and defendant (tlie second
endorser) had un<lertaken ; and was sufficient to
entitle him to recover : — Held, also, that the
evidence, set out in the report of tliis case, war-
ranted the finding that the plaintiff did endorse
merely as surety for the maker, and that 1. paid
the money for the plaintiff, intending to look to
him for repayment, lb. But
Held, reversing the above decision, — Draper,
C. J. of Appeal, and Wilson, J., diss., and
8pragge, C, and Richards, C. J., doubting, —
that the successive endorsers of a note, merely
on proof that it was made for the accommoda-
tion of the maker, are not necessarily to be re-
garded as co-Bureties, and so liable to contribu-
Xwa ', but that iu the absence of any agreement
to the contrary, the parties on such proof nuv
be considered as having entered into a contrJ
of suretyship in the terms in which the non
and the endorsements are known to create ; ui
that the tirst endorser having paid the noit
could not recover contribution from the seconi
S. C. in appeal, 23 C. P. 439.
See, also, Breeze v. Baldwin, 5 0. S 444[.
489 ; Niblock v. McGregor, 12 C. P. 5(ifi, jHsJ |
XV. Losfi OF Note.
Where a note had been endorsed to an atto^ I
ney's clerk in the course of business, and mj I
laid :— Held, that secondary evidence of itgooul
not be given, without calling the clerk, althouiil
the attorney was called ami sworn to his Wl^l
of its loss. Grove v. Clarke et al., 5 0. S. 208,1
Where the plaintiflfs declared against ttJ
drawer of a lost bill payable to plaintiti s order f
on a promise to pay it, but did not state arl
new consideration for the promise, nor alleij I
that the bill was unendorsed at the time of tke I
loss, the declaration was held bad on geucnlj
demurrer, Rusmll v. McDonald, 1 y. B. 1%
Payee against maker. Plea, loss of the note I
by plaintitf before suit, and that he hath i)eei|
and is unable to produce the same. Replication!
denying the loss only : — Held, good. t'aKiu/jfjl
v. itfcC'rea, 11 Q. B. 93. '
A person suing on a lost note should, befortl
action, tender an indemnity to the maker, Ijl
he neglect this, it will be at the risk of enstiul
defendant. Bamjue Jacques Carticr v. lilraciMM
5 P. R. 159.— C. L. Chamb.—G Wynne.
XVI. MlHCELLANEOUa CaSE.S.
A general power to an agent to signbilli,
notes, &c. , and to superintend, manage, ami di, :
rect all the att'airs of the principal, gives hinii
power to endorse notes. Auldju v. ikDowji,
3 O. S. 199.
It was proved that one D. was clerk or i
for the defendant keeping a store at L, andttit I
defendant had sanctioned his purchasing certain [
goods : — Held, that the circuiiistauees gave ml
implied authority to D. to sign the defeiidasti j
name to negotiable paper, and that the jury wen I
warranted in finding that the defendant y I
given D. no authority to purchase goods of tie J
plaintiff. Heathjield v. Van Allan, 7 Q. B, H(i[
A foreign corporation, to wit, a bank, mail
maintain an action upon notes discounted ul|
received Ijy them in the course of conduc^l
banking business in this Province, althonghtk^l
may maintain an action for money had and re- 1
ceived to their use against the party for fbnl
such note was discounted, and to whom aw^i
was advanced upon it. Bank of Montrtdit
Bethune, 4 O. S. 341. See Ifotve Jfachim C<).i.\
Walker, 36 Q. B. 37.
A note made and endorsed in a foreign coujl
try, is negotiable here, within the statute «|
Anne. Thompson v. Shan, M, T., 2 Vict
A partner in a joint stock company, the mJI
of which are suppressed by 7 Will. ^^' .^IJj
haviag retired their notes which were ia m»\
56i>
BILLS OF EXCHANGE AND PROMISSORY NOTES.
566
tion after the suppression, cannot put them into
riroiilatid" again so as to bind the partnership.
l}allx.Buck,T.T.2&3\ict.
■Where, in trover for notes against the maker,
it appeare'i that the notes had been given by
him on a imrchase of land ; that the payee after-
xfm\s agreed to deliver them up to him on a
Booil consideration ; that afterwards, and before
their delivery, the payee assigned them by deed
to the plaintiff, the notes themselves being in the
piissessiou of a third party ; that the defendant
afterwards received them, having first had notice
of the assignment, and no fraud having been
shewn tlie jury found for the defendant : — Held,
on motion for a new trial, that as these facts
ffouhlhave constituted a good defence in an
action by the ;iayee on the notes, the verdict was
richt in the absence of proof of fraud ; a new
trial was therefore refused. Small v. Bennett, T.
T. ,S & 4 Viet.
A note made by the plaintiff to the defendant
faUing due after the service of the plaintiff's
writ, l)ut i)efore declaration tiled, may be set-off
ill tlie action; Tlwrm v. Hahjht, H. T. 6 Vict.
Where in an action against the maker and en-
dorser of a note r dpr 5 Will. IV. c. 1, one de-
temlant pleaded ' ^jneral issue, and the other
iilowed judgnit vO go by default, and at the
trial the plaint. ^ was nonsuited as to both, no
one being present in the court on his behalf : —
Held, that tlie nonsuit might have been right as
to the one pleading, and it was therefore set
aside on payment of costs. Small v. Poivell et
d, 1 Q. B. 427.
Where a plaintiff takes up a note which
j defendant had given him, and which Le was
bound to pay at maturity, he may recover
I against the defendant as for money paid, ilc-
' U V. Wuiidaff, 5 Q. K 588.
Payment in "good notes" does not necessarily
tmean "good negotiable notes. ;' McArthur v.
HmsIoic, 6 Q. B. 144.
Where a plaintiff contracts t- ■ v ei ve for work
[ done at its completi(m, a certain sum of money,
Jandtheu agrees to accept froia the defendant
Ithe note of B. for the sum, he may sue for the
|;inoney, if the note be not tendered at the time
hpecijied, a subsecpient tender of the note and
petusal, will l)e no defence to such action.
pkkrw Ferrix, 6 Q. B. 534.
In an action against the makers and endorsers
M a note, it is not necessary that all the defen-
dants should concur in an application for a new
"rial. Moulmi\. ArroletaL, 11 Q. B. 81.
Ill an action against the maker and endorser
if a note, a new trial was granted as to one de-
fendant, leaving the verdict to stand as to the
mr. Hanscome v. Cotton, 15 Q. B. 42.
A forged paper purporting to be a bank note
►» note, and equally so, if there is no such bank
» that named. Beijim v. McDonald, 12 Q. B.
[^Herein an action on a note against defen-
nt as administrator of the maker, who died
Wore the note fell due, it w.is left to the jury
^8ayon the whole evidence whether defendant
Mny time after the note was due, promised
pthoiit condition, or only in reference to the
Kta of the estate to pay the note ; and the jury
found for the defendent, the court refused to dis-
turb such finding. Adams V. Capnei; (i G. P. 277.
The plaintiff tlrew upon .1. a bill for i.'200, pay-
able to their order, which he endorsed to the
Gore Bank, by whom it was sent to the agent of
defendants, the Bank of Upper Canada, for col-
lection. When it fell due, .1., with the agent's
assent, drew upon the plaintiff's to meet it, but
the proceeds of this draft, contrary to J. 'a direc-
tions, were placed to liie credit, with defendants
against other acceptances of his, and the plaintiffs
paid both drafts ; — Held, that they might re-
cover the i)rooeeds of the second bill from defen-
dants as money bad and received. — Per Burns, .J.,
they might also recover as for money paid. — Per
Kobinson, C. J., not. Riddell v. Bank of U. C,
18 Q. B. 139.
Declaration, that in consideration that the
plaintiff", for the accommodation of the defen-
dant, would sign a certain note made by ('.,
payable to the defendant, for £100, defendant
promised to obtain and (leliver to the plaintiff
accounts due to C. by different persons to that
amount as security : that the plaintiff signed
the note, but the defendant did not obtain the
accoimts ; by reason whereof the plaintiff" was
obliged to pay the note, with interest, and the
costs of a suit brought by tlie defendant thereon.
Defendant pleaded, by way of estoj^pel, that in
the suit by liim on the note this plaintiff pleaded
as a defence the same agreement now declared
upon : that issue having been taken thereon the
jury found th.at no such agreement was made,
and that judgment entered on that verdict still
remained in force : — Held, on demurrer, a good
defence. McLean, J., diss., on the ground that,
as the agreement could have formed no defence
to the action on a note, the verdict on an imma-
terial plea formed no estoppel ; and that the
declaration was bad, for the damages alleged did
not arise from the non-delivery of the accounts
promised, but from the non-payment of the note.
Campbell v. Holmes, 21 Q. B. 41)5.
Remarks as to the practice in this country of
taking notes for discount, not from the last en-
lioio^r, but from the maker, who brings them
endorsed — thus suggesting not a business trans-
action, but accommodation endorsements. Bank
of Montreal v. Reynolds et at., 25 Q. B. 352.
Declaration, that on an accounting between
them, defendant's indebtedness to plaintiff was
fixed at a certain sum, to be paid off' in a stipu-
lated manner and at a stipulated time, one of
which payments defendant undertook to make to
A. & Co., to whom plaintiff was liable to that
amount, it being also agreed that the plaintiff
should towards that liability provide an addi-
tional sum by a day named, to be repaid by
defendant to him : that it was further agreed
that any error in the said accounting shomd be
corrected, and plaintiff should give uj) to defen-
dant all notes and securities belonging to defen-
dant, which plaintiff before and at the time of
the accounting held, except, &c. Breach, that
although a reasonable time had elapsed, &o.,
defendant had not paid A. & Co. Plea, — after
alleging errors in the said accounting, specifying
them ; that after said accounting, and before
action, plaintiff endorsed said notes to A. & Co.
in settlement of their claim, of which A. &
Co. had given defendant notice : — Held, on
demurrer, plea bod, as not shewing that the
,1
1 1
t'l
I '"
iii:l.
^w
fi67
BILLS OF LADING AND WAIIEHOUSE RECEIPTS.
558
li
B! !■ I
5i I
notes, which liatl been endorsed away, had been
given for thu ciiuso of action stated in tiie de-
claration. Junes V. Cdiiicruii, !(!('. I'. '271.
Action for eonvertint; certain notes, with a
gjieciid count, alleging in snbstanee that defen-
dants held tlie notes ;is collateral security for cer-
tain i),i]ier in tlieir hands to which the iilnintifV
was a innty, and alter they h:ul colleetcil part of
them, and the ))ai)er had been retired, they col-
lected and aiiplied to their own nsu the remain-
ing notes, to wliicli they hiid ceased to have
any claim, hefendants pie.", led, on e(|iiital)le
grounds, th'it after receiving the notes they
wepj apiilicd to l)y tli,^ jil.iintitl' to ••leceiit in 'pay-
ment of a debt due by bini to them, the note
of' one A. 1)., for .";!1,I47. which they refused to
do unless oik; .(.D. would endorse it ; that .1. I>.
would not endorse without security, and the
plaintitT thereupon got defend.-mt's agent to write
to ,). !»., agreeing to hold the luitcs in (piestion,
to api'ly when collected on tlie note for .'ii'1,147 ;
that . I. I)., on the faith of this, en<lorse([ said
note, which, dcfeiulauts accepted in payment, and
wliich was renewed from time to time by the
])r(ieeeds of tlie notes eollect<'<l and redui^ed in
■July, lH(i"J, to a note for .S477, wliieh note.l. I).
took up, and defen<lants tliereupon transferred
to him such of the notes in i|Uestion as remained,
as they Liwftdly might, and wei'e bound to do : —
HeM, on demurier, that the plea was go(]d, as
shewing a legal defence. (,)ua're, whether it
could II.; .suppoi'ted as an ocpiitablc jilea, for.T.D.
would hav(; been a necessary party to a bill by
the plaintill', for the recovery ami account of the
notes. Mdi/ljci v. JUinkof Toru)il<i, "2!) Q.U. ,5(10.
(I'ontract with express eom])any to carry and
present notes for payment - 1 )elivery to not.ary —
Failure by notary to notify endorser of non-pay-
ment-- ('omi)any not li 'ble. MHjHitrnc v.
Fimjo, '1[ V. \'. 478.
In an action on an agreement by which, in
considi/ration of the plaintiff giving defendant
his note for S4.'W, payable foui' months after date
as the purchase money for a note for 8730, made
by T. & Son, having then ten months to run,
paya))le todefendant'sorder — defendant iigreed to
keep the plaintitV's note renewed until the ma-
turing of T. & .Sou's note : and at the maturity
of T. & Son's note, "to procure the said T. &
Son to renew their said iTt'M) note, by giving
their seven notes for ci|ual amounts payiujle to
my order, and payable in one, two, and three
months," &(!. : — Held, that the words, "payable
to my order," did not necessarily import an un-
conditional endorsement by defendant of the
seven notes, but might mean oidy such an en-
dorsement as would pass the propertj' in them to
the plaintift'; that evidence of conversations be-
tween the parties before making the agreement,
and of the surrounding circumstances, was there-
fore admissible to shew its true meaning ; and it
appearing that the note for S730, also payable
to defendant's order, was endorsed by defendant
"without recourse," and that the plaintiflf de-
signedly left the agreement doubtful, so as to
insist upon an unconditional endorsement as to
the others : — Held, that he could claim only
that these notes should be endorsed as the first
one was. McCarthy v. Vine, 22 C. P. 458.
The declaration alleged that L. & Co. drew a
bill of exchange for ^(59. 72 on the plaintifif, pay-
able to the order of themselves at defendants'
bank, ond endorsed it to defen<lanta.
. '"""l that it
was duly presenteil by defendants tip iil.iiutitf
and was duly accepted bj' the \>1aiiitilV; tli.it tli-
defendants, with fidl knowledge of tlie pliintij
having so accepted, negligently, and witimnt
reasonable or proliable cause, afterwards c:iiis !
' the said bill to be ])rotested for nnnarieiituni,
by the plaintill'. whereby the p'aiutilt w-i, j^.
; jured in his credit and business with tiic ilnuven
■ and others, and his business was tliereliy iiiniiile,i
I itc. : — Held, on dennirrer, that no cause nt' autioii
was shewn ; foi' there was no ncgligenre Aww^
as between plaintiff and defendants, nnr ..nn'
jirivity on which a duty or contract iiii^iit.uist',
and that the action, if m.-iintainable at all, must
be as for a false representation liUowiiiyiv niiult
which had injured the pl.iintitf in his liiisiiitss
and the declaration in this view w.is iiisutlicicin
, frvlmx. Ciiuiidhiii ISditk ol' CoinvhTn •>;((' ii
Where a cor[ioration having a deljt tn my.
which it was to their advantage to diseiiari'i,' im-
mediately, raised money upon an .■iccdiimiiiiTntiiiu
note of an individual, .-iiid .ijiplied the iiiniiovt'r
the jiayment of the debt, l)romisiiig tn iinitfit
the note or to rei)ay ; relief was given in tlii-
court agivinst the corporation upon a lneaLlinj
the ju'omise. And if the eor|ioration eiuildli.wc
j been compelled to pay the delit, the pewn: so
I giving his note will be entitled to stand in tlit
' place of the corporation creditor. Hurnhnm '•
I I'vtcrhorowjh, 8 t'hy. SOU.
The vendor on the sale of lind ton); imtes fur
the purchase money, endorsed and snlil .snnif of
; them, and was liable on these in ease nf iiiiii-
payment by the makers ; — Held, that on tlm sale
of the property these were entitled to priiiritvul'
i ])ayment over the notes retained b\- tlie vciiiliir,
i O'Doiwijhuv V. r/iiiilirdf, 10 Chy. 9.5.
■ In such a case notes endorsed witlumt recnurv.-
j are payable pari p.assu ^,ith the retainoil imtts.
'■ III.
BILLS OF LADIXfl AND WAUKHoU.SK
R1':CEIPTS.
I. Bills of Ladinc}.
1. As connertctl ic'Uli flic Ciirrhnji^ nf (!iM)
— Sec HaIF.WAVS AND llAlLWAvCtiM'
I'ANiES — Ship.
2. Dutti's of Banks in conncrtiuii wlth-Hii
BAXK.S.
II. Warehouse REcF.irT.s— .S'c' WAHEimra-
MEX.
III. As AFFECTED BY C. S. C- C. 54 ; '24 Vkt.C.
23 ; 29 Vict. c. 19, D. ; 31 Vict. o. II, D,;
33 Vict. e. 11, D., and 34 Vnr. c. j,D.,
REPEALINO Ii'.
Where two partners, not carrying on the busi-
ness of warehousemen, have their piitnunhip
stock in their own cellar, a receipt given liynne
to the other for that stock, though in the fdnuof
a warehouse receipt, is not a warehouse receipt
within the C. S. C. 54. Ontario Bank v. Jeif
ton,- 19 0. P. 258.
The plaintiflf declared that one G. had ileiwaj
ted with defendant certain wheat, and obtained
from him a warehouse receipt therefor : that bj
m
KlInUSE
• ((/(' (If' Cuifl
Iu.wayCu*
L)i ii'lth-ii'.'
IVakeuovje-
■24 Vin. c,
L'T. c. n, P.;
|rr. c. 5, D.I
Inutlielnisi-
■iveii l>y<"i«
|itliefiiniiof
louse receipt
},uk V. .V*
liid obtained
tbatby
5G9
lULLS OF LADING AND WARKIEOTJSK RKf'EITT.S.
•)(
thccniir.-!P 'if tnulo such rooeipt was transfurfiblo '
liv imloi'.ieiiiunt, unci tlio in'opurty in tli(' wlievt.
would |iii-<^ to an <iiiili)i'»ou : tliivt (1. sol^l saiil
wlii'att'i till' i)laiiititr, iind oiidorsuil to him tliu
rcceilit; '"it that Avlmii lio prosimtt'il it to the
(Iffeiuhuit, the liitti'i- ri'.t'ii.soil to dflivor to him
the wlu'iit. Defoinbiiit iiluailcil that licl'oi-o hi;
hiiihinv nntice or kuowloilgu of .siioli traiist'cr oi-
sale,
J.i'. till
ll''»"'^ o-
i uiirat waH taken out of his w;in;!i()usi!
IivIt • lli'hl, a f^ooil ilnfunuo ; for at oiniimoii
liw tlio oMilorsiiinuiit and tiMiisfur of the i'i;i;oii>t
wiiiilil clearly not jiass the iiroperty, and the C.
S (' 0. o4, relied ill>;)n hy the lilaintiif, his
',jii,jpn|ii.iti;iii to an alHohitt! salt; of jthoiIh, hut
to pi..'«ti,"'s only, to seenre iiaynieiit of a liili or
note iw'^'otiated, or a dol)t eoiitraeted, when the
receipt Is eiidorsuil over. <,'/iish v. U'iiilii'i/, ■2-2
Q. B. 'JOO.
The ileclirvtion alleged that the [iliiiitill' liy
his ivents delivereil to the defi!iidants 8,01)0
li,i4n|ij of his eorii, to h^- carrieil from Chiuago
t,i Stratfor.l, A'o., and to he delivered to the
Bank of Montreal or their assigns ; that the
biuik assiili'ed the corn to the iihiintill', yet
that (li)foiidant.i negleeted for an nnreasonahle
■ tii'ii; to carry and deliver it, whereUy the jil liii-
titfl''st a market and was afterwards oliligeil to
h!1 lor a less iiriee than ho wimld otherwise have
ihiue. It ainieared that the eorn was shipped
bvM. & *■'"■< ""** agents and forwarders,'' on
a^riiiiiit of whom it might coneerii, to he de-
liwri'il to tiu! liank of ^loiitreal or their assigns,
,11.1 the hill of lading was enilorseil hy the
I, .lit of tile h:uik to the plaintitl', witli whom
tho duicuilants treated as the owne^r, and dc-
livcroil it to him after soiiio delay eaused Ity a
ilrii^'c made and afterwards remitted hy them.
It MM objected that the consignor or eonsignee
o/ilil only sue upon tliis eontraet, not the [dahi-
titf; that" the hank eoiild not a.ssign to him ;
: aii.l if tlicy eoulil, the right of action wonhl not
vi;,«. 'riiure was 110 evidonee to shew wiiat iii-
tdvst the h ink had in the eorn ; -Meld, there
liiiii;; no plea di'iiying plaintitf 's property in the
.. .111, that he was admitted to liave heeli the
..wiier when it was shi[)ped : that the hill of
Lilin^' ilid not transfer the ]M'oiierty to the hank,
in whom 11(1 other right was shewn ; that their
viilorsement was therefore uniieeeasary. and
, tint he was eiititleil to maintain tin; aetioii.
I, SLailile, however, that if he had first acipiired
llii-stitle hy such endorsement, he might ha-'e
Ksned defendants for any negligence oeeurriiig
latter thev had recognized him as owner. Id/lr
' V. /)'i(/,i(o .f Lak-e Huron R. \V. Co., 10 0. P. 7().
A liill of lading is not conclusive proof of the
Icliauge of projierty, like a bill of sale; it is a
Iquestioii of evidence whether such an operation
phoiild be given tn it. Ih.
M. & Co. being indebted to plaintiffs on ccr-
^taiii overdue notes, it was agreed that plaintiff's
■lliiHild discount a further note for them, with the
^riieeeds of which the overdue paper should lie
letired ; and that M. & Co. should hand over to
iheiii certain warehouse receipts for wool stored
In their warehouse as collateral security. This
tote was accordingly, on the 23rd January, 1 8G8,
discounted by plamtifTs, and the old notes duly
retired, an .agreement being signed by M. & Co.,
■ioitiiig that they had endorsed over tlie receipts
I collateral security for the note, &c. The re-
lipts, nearly all in the same form, were as fol-
lows :— "Warehouse Rooeipt. — noccivi^il in store
in our windiousi', at ' * * ffdiii .■nnnlrii iidi'-
'i'v, 17,111)0 pimiids batting, tobs delivered |iur-
sitint to the order of the I'liiik of IJritisli N'nrtli
America, to b.; endorsed hereon, ite." N'either
M, vt Co. nor the liank, endorsed the receipts : —
Meld, that tln'v were not w.irehonse receipts
under the C. S. C. e. 'il. 'Jl.Viet. e. '.!;?. and that
the bank, tluM-efore, could not elaiin tlie property
eo\-ered by thi'in. Semble, also, that the tr.ilis-
aetion of the 'J.'h'd .hinn iry wis not, in snbfitinee,
though in form, a iireseiit advance to M. it <'o.,
but merely a moile adopted nf jiaying oil' an
nlreailv existing debt. /?";//• o/" [!ri>i-</i S'oiili
Amcrioiv. Cliirt-iiw, IOC. 1'. IS-'.
The id.iintill's on tho OOth September, received
a not" for .■-!."i,SO0, payable to and endorsed by L.,
with l/.'s Wiirehoiisi; receipt for wo il .attaehed,
which they diseonnti.'d on the 4Lli ()<dobei', ISi)7.
On the l!lst October, .SI, 170 only remaining due,
they tofdi a note for this sum from M., the
maker of the previoiM nolo, with his receipt for
some wo(d, in aildition to a receipt from \,. for
what remained of the woid covered by L.'s pre-
vious receipt. It WIS not dis;,'outiteil, however,
on that day, because M. did not pay tho dis-
c milt, and on the .")th Di'cember, M. made
aiiothi.'r note for the same sum, at ten days, in
place of it, which was discounted with the same
two warehouse receipts atta,ehed. It was re-
1 renewed on the l! l-tli, with the same receipts, and
not being [iiid, the plaintid"-! in .Vin'il sold the
wool, through a broker, who w.is unable to got
it : and thev thereininii ri'))levied iiii the 0th
-M.ay -.-Hehl, following IJ.ink of 1!. X. A. r.
• 'larkson, IOC. 1*. 1S2, th:it the warehouse re-
ceipts, being t ikeii ilirectly to the bank, and not
by endiuvicinent, wi r.i not witliin the C. S. C. c.
Tii, s. ,S, and th it the idaiutiti's therefore couhlnot
recover. Richards, ( '. .1., and Adam Wilson,
.1., however, dissented from that deitisiim,
though I'ldlowing it in accordance with the
established practice : — Held, also, that the tran-
saction of the ,"th Decoinlier might be considered
as a new one, and that the iiliintill's therefore
had not held the wool nmre than six months, so
as to defeat their title, iiiidin' s. 0. If they had,
defend, lilts might shew th. it fact under a plea of
not possessed. 7 /n- Ihi'ial Vnwulhiu Bank v.
MiUn- H ah, 28 Q. B. oOil.
Held, on appeal, front tho last case— affirming
' the decision, but disi^enting from the opiiii<ins
expressed in the (,). H. — that the receipt, given
] directly to the plaintiff's, and acknowledging to
j have received the wool I'roni them, was not within
tho statute, which .authorizes only a transfer by
endor.senicnt ; and that tho pliintifl's therefore
could not recover. The Rin/dl ditmulUtn Bankw.
I Millev et ((!., L'9 Q. B. 2M>, 'in appeal.
I B. held a bill of lading in duplicate for 100
i barrels of Hour on board tho steamer "Corin-
thian," consigned to his order, at Kingston. JIc
sohl the flour to H. at .S7 per liarrel, and went
■with him to the idaintiffs' bank, where ho en-
dorsed tho two bills in blank, and gave them to
H. H. attached (uio to his draft forS.'iOO, which
he discounted, and applied the proceeds towards
paying B. Tlie duplicate bill of lailing H. kept,
and the next day he got B. to write on it, over
his endorsement, " Deliver to order of H."
This duplicate got into the possession of defen-
dants at Kingston, uot endorsed, and they
■*'; f
.1;
I •: I
mi
I "
'..If
!.;■
671
P.IJXS OF LADINf} AND WAREHOUHK UECEIPTS.
an
m
'1
h'.
IM
obtained tlie flour tLero from the whixrliiiger l)y
rejiri'SfiitiiiK tlmt tlicy Imd H.'s ordei'. I'liiiiitiHs
br(nij,'lit tiiivir, iiiiil tlie jury Iduml tlmf, tliere
linit ixeii no mile of the tlour liy II. to (lefcn-
(limtH. On ol)jc'ctionH taken to tiio ]))iiintilI'H'
t'tli) : — Held, I. Tlmt the bill of Inding wuh
valid, thouj;h signed by the iiursur, not l>v the
ninKter ; '2. Mdirison, .1,, diHM., that the eniloiHe-
nient of the bill of lading in lilank was sntlieient,
withont Hjii'cifyiiig that it wan endorseil to Beeiiru
the note (liseoiiiittd ; .'t. That the alteration, by
converting llu^ (.'cncial into a Kjieeial endorse-
ment waH iniinatev'u ; 4. That under the eir-
cunistances, thu endorncnient by H. to the bank
waH sulli'ient without 11. 'h endorsement, either
bueaii.->e H. was in truth the owner, or beeanse
H. having' .so reiire.sented to the plaintill's, he
and defendants el.iiming under him were estoii-
pod ; 5. 'l"h:it tlie iiliiintills were entitled to re-
cover the full value of the grain, not merely the
§500 advanced by liieiit. Jt'in/al (.'nnwIUiii liauk
V. Curruthitrii H «/., 1'8 Q. B. '578.
HeM, on apjioal from the last ease, affirming <
the judgment of the (^. H., I. That the bill of ;
lading was sulHcieiit under ( '. S. (,'. c. 'lA, s. 8, '•
and otherwise, though signed by the purser and ,
not l)y the master ; '1. That the endorsement by
B. was sullieient ; 3. That the endorsement in
blank wa.s sullieient, the statute not re(juiring
a special eniloi'sement setting forth the object of
the transfer. 4. That the plaintiH's were en-
titled to recover the fidi value of the flour,
§70(), being accountable to the proper party
for the oveiplus. .V. ( '. •_'!> Q. B. 283.
A., a warehouseman, insured certain wheat
with defendants' comnany, and assigned the
policy to a bank, to wliom he gave a warehouse
receipt, signed liy B,, his clerk, and endorsed by
himself. In an action on the policy, on behalf
of tile bank :- Held, reversing the judgment
of the C'onniion I'leas, 18C. I'. I!)2, Sjiragge, ('.,
Mowat, V. (!., and A. Wilson, J., diss. —that
the bank had no insurable interest, as B. was
not a warehouseman within the C. S. C, c.
54, s. 8 ; and that the receipt was not in compli-
ance with 24 Vict. c. 23, s. 1, not being signed
by the ii'iDvlinitxiiimii. Tui/il v. Lirer/iool and
Lomhm (Uohe Inxuranvv Comjimii/, 20 C. V.
523.
A condition of a jiolicy provided that pro[)erty
must be insured in the names of the owners. It
appeared that the policy was on grain insured in
the name of the plaintiff, who had given ware-
house receipts for it, enilorsed to certain banks.
Per A. Wilson, J. — Such banks were the owners
by virtue of these receipts, not the plaintiff ;
and the cfuidition was broken. MclirUli' v.
The Gore District Mat mil Fire Ins. C'o.,.'}OQ.
B. 451.
M. & Co., at Ctuelph, bought a car load of
wheat on commissicm for C. They paid for it
themselves, and shipjjcd it by defendants' rail-
way, taking the railway receipt in their own
names as consignees. The car was addressed to
the care of C. at VVaterdown, M. & Co. being
aware that it was intended to be ground there
for C. , and the receipt was endorsed by them to
the order of the Cana<lian Bank of Commerce.
Through this bank they ilrew npon C. at 15 days
sight for the price, with their commission and
bank charges, and discounted the draft with the
receipt attached as collateral security. At
1 Waterdown the wheat was delivered liy difi-j.
I (hints uiHin C.'s or<ler to his brother, win, ||,.,||.
; mill there. It was mixed by him uitli citLet
1 wheat and ground ; and r>,"i barrels oi iluur, tij,
I e(iuivalent, was delivered liy him to iKiiinlum,
for ('. ('. became insolvent before tlif (lr,iit
matured, and M. & Co. took it up Mini ^ai ^j
railway receipt re-endorsed to thiui. V.'h-u.
signee having sue<l the defendants in tinvcr .hkI
detinue for the tlour, they, in privity wii), M j
Co., deided the plaiiitifl's right to it, iiinl setup
the title of M. & Co. Thi! e'ase having lieentiiij
without a jury ;- Held, that .M. itCn., i,n tht
re-endorsement by the bank to them, \ure in ai
of their former title, not as assignees oi t||,. l,„|,|;
with the rights given to the latter by tlicbtiitiitc
and that their rights must be consii!ei((l ;i»u'
the bank had never intervened. Mii.^m, yjinqi
i\'i'.it<'ni liuiliroij Co., 31 (}. B. 73.
The plaintifl's sucil for non-delivery of curtain
goods received by defendants from mic i;. W
to be carried from I'aris, Out., to St. .Inlma X
B. , and there delivered to one It. W., or tn smlj
persons as he ahouhl direct.alleging tlmt thcsijil
K. \V. duly endorsed the shi])piiig nnte df the
said goods in manner and form piuvidtd Ijy
statute to the plaintiffs, who tiien liee.iiiio .mJl
are the lawful and bond tide holders ot tiiesiniie
for valuable consideration, and entitiwl t(i tlie
possession of the sai<l goods. I'lea, suttinL'niit
the alleged shipping note verl' ;tini, wiiieliHia
in the usual form, dated at i'aris itatjuii. {',. T.
H. acknowledging the receipt of the pK .Is u„m
(i. W., addressed to K. \V., .St. .loliiw, sulij.ct
to the terms and conditions stated. It wm
signed, " W. S. Martin, Agent, (i. T. 1{., "ami
on the face of it was written, " |)eliver tn mdrt
of Itoyal Canadian Bank H. Wall.ice." The
plea then averred that the endorsement tu the
plaintiffs mentioned in the declaratidn was that
mention in the plea on the face ot the shiiiiiiiiii
note, and that there was no other eiiilnrseiui-iit;
and that <!. W. did not, at any time luturt- this
suit, deliver the flour in the said sliipiiingudte
mentioned, or any part thereof, to tliu dcfeiul-
ants, in manner and form as in the deoliiratiin
and shipping note mentioned : — Held, (mdimiir-
rer, that the plea was bad, not being either in
denial of the plaintiffs' title as endursee'S M
value, or of the defendants having signed orgivtu
the shipping note as alleged; and that it iras
not so framed as to enable the court to dcterniiue
whether the defendants were esto)iiie'dfriini(kiiy
ing the delivery to them of the goods nientimiol
in the bill of lading, which was the iioint iirgiipl.
Hoifnl ('((iKidinn Bunk v. Oruwl 'I'niiik ll H.
Co., 23 C. P. 225.
Semble, however, that the shijipiiig nnte wasj
bill of lading, within 33 Vict. c. 1!», s. ;t, <»., ;aiiJ
that the insertion of the word " train " in tlie
act (not found in the English statute, 18 i 19
Vict. c. Ill) clearly makes it api)lieal)le to rail-
ways, lb.
Semble, also, that it w.as unnecessary to allejie
in the declaration that the plaintilfs, teinj
bankers, acquired the shipping note as coliaten!
security, as authorized by the 34 Vict, c, 5, D.;
though the plaintiffs would have to ilieiv tbii
under a denial of the endorsement. Ih,
Semble, also, that under the IiiterpretitiM
Act 31 Vict. c. 1, 8. 7, 8uh-8. 9, U., theilefen-
dants, though a corporation, would be "person!
BILLS OF S
r-;'^'.!'^'
\m
573
BILLS OF SALE AND CHATTEL MORTGAGES.
574
gianing" the bill of lading, if signed by their
authoiwd agent. Ik
A wftri'hnuBO receipt, endnr»ed to a. bixnk, do-
8crit)«<l the goodi m "40 bales of uorkH," not
distiiigii'shing them by seiiarate niarks or valneM.
jSoDioof these were taken out and replaced l)y
others. It appeared that the bales had all dis-
tininushing marks, ond were of varying values,
wino twice that of others :— Hohl, th it the
receipt only extended to the particular bales in
the warehouse when the receipt was given, and
did not cover other bales which came in after-
wimis in lieu of those taken away. Llndn v.
},hr,jan, 23 0. 1'. 617.
See also t'hirk v. WeMrrn Asmirano' ('o., 25
Q B 209 ; ''"'■'' Ji'ntk v. Hoyal Cotiwlinii liauk,
l3Chy. 425.
BILLS OF SALE AND CHATTEL MORT-
UAOES.
I. Who may be Moktciaoee, 573.
II, Construction of, 574.
III. Reoihtration and Chanoe of Posses-
HION.
1. Affidavits of Bona F'ulen and Execution ,
(a) Who may Make, 575.
(b) (Hhev Canex, 57(>.
2. Affidavit and Statement on liejUimj, 578.
3. Reijistration, 57D.
1 Chamje of PosHexxion, 581.
5. He.-Ji'Um,i, 585.
IV. Desckiition of Goons, 587.
V. Consideration and Bona Fidks.
1. Mortgages to Secure Advances, or as
Indemnity, 591.
2. Other Ca^en, 592.
VI. Rights and Liabilities of Mortoaoor
and Mortoaoee.
1. As to Possession, 594.
2. Other Vase^, 590.
3. Insurable IntrreH of Mortgagee — See
Insurance.
VII. Assignment for the Benefit of Credi-
tors— *« Bankrui'tcy and Insol-
vency,
VIII. Fraudulent Conveyances — See Frau-
dulent Conveyances.
IX. Sale or Mortgage of Ships — See Ship.
L Who may be Mortgagee.
A person advancing money belonging to others,
Jiut lor which he is responsible, may take a
"hortgage for it in his own name. White v.
Sroini, 12 Q. B. 477.
A treasurer of a mutual insurance company,
lay take a mortgage to himself for a debt due
} the company ; but it is more proper to make
tto the company, and they have power to take
' Brodie v. HuUwii, 16 Q. B. 207.
Tile Queen may take a chattel mortgage from
any of her Hubjccts, (under our acts,) through
and in tlie name of tliu liead of the ilepartment
to whicii tlic debt i» due. Meilee v. Smith, 9
C. 1". H!».
See /iaidirii, v. /ieujaniin, 1(1 Q. B. 5'2, p. 575 }
Taylor v. A!ii.ilie, 111 C. 1'. 78, p. .')78.
I I. CoN.STRUrnON OF.
I'artyof "lirst" part, instead of "second" part
in the assignment. Held, immaterial. Taylor
et al. V. iUiinim reial Jliiiik, 4 C. I'. 447.
A mortgage on saw-logs will bind the lumber
into which they are sawn, but tiie mortgagee
nuist prove that such lund)er was made out of
tliem. White V. Uroini, 12 (,». H. 477.
The plaintilf aiul VV. made an agreement, by
which plaintitl' was to make advances to \V., to
enal)le him to draw <Ait and to nmke and get to
market a iiuantity of tind)er. It was agreed that
the timl)er tlicn made, and all thereafter mmle,
should Ih) delivere<l to the plaintilf as security,
and in proof of such delivery should be marked as
specified, and that it should be rafted to market
under W.'sdirectitjns. The timber was seized by
defendant as sheritl' under an execution against
W. ; and tlie plaintit!', claiming under this deed,
replevied : — Held, that \V. could not bo looked
upon merely as agent of the plaintiff, and the
timber regarded as tiie plaintiff's from the tirsc,
for that would be inconsistent with the deed ; —
Held, also, that the statute requiring registra-
tion could apply only to that part of the timber
in existence as timber, and owned by W. at the
execution of the instrument, but that it clearly
applied to that portion, and therefore for want
ot registration the deed must be held void alto-
gether ; but, at all events, it could have ojjcrated
to pass only tlie timber maile and capable of
delivery at the time of its execution, and such
as, being nuvle afterwards, was delivered to the
plaintitl and marked for him. Short v. Jiutlan,
12 Q. B. 79. See, also, Jdittan v. Short, 12 Q.
B. 485.
The plaintiffs held a mortgage from one C. of
700 pieces of timber, " togetiier with whatever
(juantity of 8(iuared timber the said party of the
tirst part may manufacture <luring the remainder
of the season," The timber mode after this
mortgage was marked as it was got out, with the
plaintiffs' mark, but remained in C. 's jMssession,
and was seized there by the defendant, an execu-
tion creditor : — Held, that the plaintiffs could not
recover for it under their mortgage. C'umminga
el al. v. Morgan, 12 Q. B. 5t)6.
L. mortgaged to the plaintiffs for £140 2s. 5d.,
reciting that he was indebted to them in £214
lOs. lid. ; and that they had become security
for him as endorsers of a note for £25 lis. 6d.,
making together £240 28. 5d., for £100 of which
he had previously given them another mortgage.
In trespass against the sheriff for seizing the
goods under an execution : — Held, that the mort-
gage was defective in not shewing the terms,
nature, .and effect of the liability incurred by
endorsing. Boulton et al. v. Smith, 17 Q. B. 400 ;
affirmed in appeal, 18 Q. B. 458.
The mortgagor had agreed to deliver lumber
to plaintiff, at specified prices, up to Septem-
ber, 1870, which plaintiff was only bound to pay
■Ik
il ■ i
M':
573
BrLLS OF SALK AND CHATTKL MOUTCJAOKH.
m
fi ( ■
for 08 (lulivurod, and not to niiiku ailvnncuH ; )>iit
at thu tliitu of t)u! iiiortgii^c |ilniiitilt' liiid nd-
vaiiuud ikl)out iiii'.'50 beyond the vidiiu ol' tliu
lunil>ur dulivurod, ami to imhmI tliu niortgU),'or
Htill lurtlier hi) advanoud •^4riO more, on IiIh agtve-
ing to uxvciiti) till! nioi'tgagi! to hucuio liotli
aniountM, vvhidi wuru to Ih: rupaid liy lund)er or
nionuy in two nionllis, tlio Muciirity covering tlio
goodH in diMputu im well ua tliu luinia'r : lii:ld,
that tlu! niortgagu waM an iniltpL'udt'nt contract,
an advant'u ot nionuy to l>o rupaid at un uarlicr
datu than that nanuMl for the delivery of the liiiii-
iHir : that it wan not invalid, at* not Hhewing the
trno dealing between the paitieH; tliat tlieuMida-
vit, which wa8 in the eoninioa form, hh for a
debt due, was sutlicient. ('Imiuv. Hulin, 'li C.
1". 348. See, alHo, /{<rr/ii-r v. Aiis/in, Jl C. I",
;m, p. 077.
The owner of land upon which there are tlx-
tures, Hueh as machinery in a mill, hai* the right
to sever the ehattelH from the realty ; and there-
fore a mortgage by him upon the lixturen was
— Helil not to lie prejudiced by hi.i sniiseiiuent
mortgage of the land, /x'tiss v. //u/ii; •2'2 ( '. I'. 48J.
See CloKh-r \. Ui'ddlnj, 12 (I B. 3(14, p. ri!l4.
See, also, VorjiurittUm nj' Jjitmirk v. Ciiiiirrnii, I)
c. r. io«.
III. ReoISTRATIOV and L'llANdK OK I'o.S.SKSSION.
1.
rut inn.
Affutiii'itK of Bona Fiitf^ ttnil h'.,
(a) iy/io mail Make.
An affidavit made by one of several bargainees
or assignees of goods (before "JO Vict. c. 3) : -
Held, sutHcient. lialkn'ill el al. v. Biitili)ni<; Hi
y. B. 203; JJcininlv. Mitchdt, 11 y. H. (i25.
13 & 14 Vict. c. 02, reqnires that the mortga-
gee himself shall make the alhdavit ; therefore a
mortgage filed upon an atKdavit of his agent was
held void. JIuhncs v. I'tinriim/), 10 t^. H. 510.
A. mortgaged to IJ. for a debt due by C, and
(J., to secure A., gave him a chattel mortg.ige
conditioned to be void on his paying the amount
of the debt either to A. or B., or nidemnifying
A. against his suretyship. This was registered
under 13 & 14 Viet. c. ()2, on an atiidavit in the
form preseribeil, that (J. was "justly and truly
indebted to A. " in the amount of the mortgage.
It was objected that such mortgage was void as
against the plaintiff, a creditor ot C, because the
attidavit coulil not have been made consistently
with the facts ; but — -Held, 1. That A. could
properly make the attidavit ; and, 2. That if he
could not, then the mortgage, not being within
the statute, would not have required registration
at all. Baldwin v. /icnjamin, Hi Q. B. 52. See
Mathers v. Li/nch, 28 Q. B. 354 ; Walker v. iViles,
18 Chy. 212.
Held, under 12 Vict. c. 74, that it was not
essential that the atiidavit of execution should
be of a subscribing witness ; and that where the
original had no subscribing witness, but in the
copy filed the name of the person who made the
aiiidavit was inserted as a witness, the variance
was not material. Robinson, C. J., diss. Arin-
stronij v. Ausman, 11 Q. B. 498.
Where a bill of sale was ma<le to two jointly,
and tiled ou an atiidavit of bona fides made by
one, but the evidence shewed that the conside-
ration wiiH made U|) of two debtN, du«' to tlit
viiidceH Heparatcly ; Held, HUllieicnt. Mrl,-.,!
•■I ill. V. Furtiinr i'l III., 10 Q. B. JOO.
Meld, IticiiardH, ('. •)., lieHilaiite, tliat tlic prcuj.
dent or other principal <itiicer of a c(ir|p(irnti(in
taking a mortgage for ami in the iiiiuk. ,,| (|,^
col |Miriiti(in docK not act as itx agent, Imt i„
[ii'inci|)al in the exereisuof its corporate imHiric
and may therefon^ make thu attidavit ot Ih,|,J
tides uiiilerC. S, U. ( '. c. 45, without imllinriti
in writing. Hunk «/' Tiimnln v. .Mr l),iiiii„ii {■
V. W 475. • ' '
See Tdi/tiir V. Ainnlie, lit ('. I', 's, u, ,-,; .
OlmMiaU V. Smith, 15 y. B. 421, infra.
(b) Other ('(iHvn,
Atlidavits under 13 & 14 Viet. c. ()2, ncid not
be made on the day the mortgage in exuciited
/'((•(•// v. Hiilliin, 10 (i. B. 037.
The words, "sworn and atlirmed," without
saying which of the two deponent!* .swdie, ;iii,|
wliich atlirincd, and omitting the word "nevi'.
rally" in the atiidavit to a mortgage: ||ili|
MUtlicieiit. Moyirv. DariiUon, 7 t'. I'. ,VJ|,
It is not necessary in atlidavits sworn uinler »
statute to conform to the technicalities ri'iiulriil
by rules of court. Ili, l)e Furn-.^t v, tliniu.ll
15 Q. B, 370.
An attidavit that the deed was not iimdc t„
enable the a.-i-iii/niir (instead of the ii.s.sigiiei) tu
hohl the goods against creditors ; - Held, liad.
Seinble, per McLean, J., that assignees in trust
for creditors cannot properly take the iillidiivit
recjuired by 13 & 14 Vict. c. 02. i)lm.Miiiil\
Smith, 15 {.l B. 421.
Where a witness to a mortgage by two swears
that he saw both execute, when in fact lit- nulv
saw one, and the mortgage has l)ceii ifgiattriJ
on such attidavit, it is sutlicient. Dit'urmts
Bunnell, 15 t^. B. 370.
It is no iibjcctioii that the slcoihI ('llri^Iiall
name of the deponent is not written in full, Im:
the initial only given. Ih.
The jurat was as follows ; "Sworn liLluro me
at the Brantford of in the - cdiinty ui
Brantford, this 13th day of October, .A. I>., livVi;
(jeorge W. Malloeh, a commissioner tor takJM
atlidavits in the Queen's Bench in and fur tksaiil
county of Brant :" — Held, suthcient. IK
An atiidavit of execution sworn hefure tie
mayor of a foreign town is useless. ///,
Held, that recitals which used the siiiguk
instead of the plural number, and an athilaril
which stated that the conveyance wasiidtk
the purpose of enabling " the bargainee to LdH"
&c., there being two bargainees, did not vitiate
the instrument. Tyan v. Mc Muster, 81'. I'.-Hli
Omission of deponent's addition -HeW, no
objection. Brotlie v. JiiUtan, 10 Q. B. L'O".
" Secretary of the Board of Arts and -Mw-
factures," — Held, a suthcient addition. .Vw.'.'v,
Pell, 7 L. J. 322.— C. L. Chaiiib. -Draiier.
A person who prepared the assignment mj
take an afhdavit aa commissioner. Jb.
An atiidavit that the mortgagor was just);
and truly indebted to the mortgagee in the su j
r)77
mLLH OF SALE ANT) CHATTEL MORTGAOES.
ms
I vgflO, or tlioronlxiutH, iih fully Hi't fortli in thu
iiiiirtKHKi' ! tt'i'' •■'"' "H'l'tK'W **"» I'Xi'i'iiti'il ill
,„1 fiiitli, iiinl for till! I'XprisM iMir|Minc()f Heciir-
miitlif iiiiyiiii'iit "f ""'I iii"ii<'V M.I jimtly iluu no
afiirmaiil, ami "f Mouiiriiin tlii^ iiinrtg;i«i'(i Inr
jij, ,^iil fiiiliirtic'liii'iit, iiinl iiiit fcir till' i)iir|Mm)> of
iiriiti'ctiiiu till' K"""'" iigiii'itt till' I'li'ilitiUH nf tlio
iiiorti/iiKi'r ; Hclil, Hullirii'iit, iiihIit tliu ilcoiHinii
;„ Hvlilwin ''. Ik'iijiiniiii, Iti (^ M. »Vi. I'tihii/iin
\:S,„ilh IM'. 1". r.l».
\ iiiort^jaKi' imi'iiorti'il to Hecnru .fl.CKM), iic-
klinwK'ilK*'<' '" '"'^''-' ''^'^'" '""'' ''•^' ''"' """'tgll^'l'i'H,
till' priiiii'ity iimrtgiixiMl lieiiig •J.ncK) liigH, iiml
til,, iinivimi i'lir rt'ili'iiil'tiiiii lii'liig mi piiyiiii'iit of
Xl.iKK), »t Hi'Vi'ii ptT I't'iit., (Ill iir licfcH'ti Ist iif
Si'pti'iiil'i'i'. iir liy tli'livoriiig liniilii^r of tirnt iiiul
miiiiil cliifHL'". I'" "^'•''-''•il lii'twc'i'ii till' 11,'irtii'H, til
that v.iluu. 'I'll*' iigrcL'iiit'iit, wliii^li wu« nf i^vcii
iliito ik'i'l:ii'i'il that in cdiisiilt'l'iitiiiiinf tliii .'JI.IUM)
tiu'ii' liiiiil iiMil iulviiiii'cil til till) liKirtgugiirs liy
liliiintitrii, "wliii'li sum i» cdlliiti^rully Hocuri'il tn
the i«rtit'» liy oliiittel iiiiirtgiigo lioiiriiiL' even ilate
hiTi'witli, " ilti'., tlie iiKirtgiiL'draiigreeil tti ileliver
til iihiintitrmill tlie lirHt 111111 Meeiiud uhmH liiinlior
ill (in or liefiiro Int Octolier then
iiwilt' at tlit'ir mill on
uixt ; anil iilaiiitill's iigreeil to pay at the |irit'es
iwmi'il, "iii'i it the ailvanee now inaile ih not
ixluuisttil. to allow them for the luiiilti"- so de-
hvtri'il at ratt'M aforeaaiil." The ath(la\ .. o. the
uiiirti;aj,'i't's was in the iixiial form, uiu. Hee '2
(if the Chattel Mortgajje Ai't : Helil, that the
Diiirtgagu was (iiiu Mitliiii seen. I and 2, and not
nv. .") iif the Chattel Mortjjage Aet : that it was
thi'iet'iire not opeli to olijeetioii for not truly
Bliewing the real trauaactidii lietween the parties ;
ami that the atlidavit was sutlieieiit. Baldwin r.
Hfiijamin, Ki i}. H. ">'i, followed. BitcIh r it ul.
V. .Ii(.<'i;i, 21 C. I*. H;U. See, iilsd, Chrb- v.
\ ii'ii:<. III. :m, i>. riTr).
An atliilavit that the mortgago was cxocuted
luigiiiiil faith, am' not for the jiiiriiose of proteet-
lin); the goods and chattels mentioned in the said
IKiirtj^'age, or preventing the ereditors of the said
jL, (the miirtgagor,) from obtaining paj^ineiit of
juiy elaim against ttim ;— Held, iiisiltlieient, for
lliiit stating that it was not made to protect the
IgiMiiU "against the creditors of the mortgagor,"
lis rei|uire(l hy the aet, '20 Vict, c. 3. lionUon
It. .ShiiV/i, 17 y. B. 400 ; atiirmed in appeal, 18
|Q. H. m.
That the mortgage was not made to prevent
|"the creilitor," (instead of creditors) "of such
iHwrtgagDr ohtainiiig payment of any claims
llgiiiiwt him :"— Held, insutlicicnt. Ilurdbnj v.
jliioii'/.iiin, 17 (J. B. ,504.
That the mortgage was executed for the pur-
I08e of securing the payment of the money so
Bsiiy "ihiB oraocriiuigiuio : '— HeUl, sulucient,
«uig in the terms of| the act. Squair v. For-
fc «i, 18 Q. B. 547.
: Held, no objection that the affidavit of exe-
rtion (lid not state the date of the bill of sale
' on what day it was executed. McLeod v.
fortiiiif, 19 Q. B. 100.
An affidiivit stated that an 'assignment tor the
fenetit (if creditors was made " iMmil fide," omit-
m the words, "for goml consideration :"—
rl'li 1)m1. Mtwm v. Thomas, 23 Q. B. .S05.
iThat it was made " for the purposes and trusts
lerein set forth," and notjor the purpose of
37
holding, fte., "the entate and etleets nuintioiied
therein," instead of "thu uiiods," as in thu
statute : Held, siillieielit. ll>.
That a iiKH'tgage by two was not executed to
seeiire the goods against the creditors of thu
inortgagorH, nor to prevent such ereditors from
rei'iivei'ing, \(',, is siillieieiit, without adding,
" iir either nf tlieiii," as regards the mdrtgagiira,
or "or any or either of tlieiii" as regards the
ereditdrs. Fnimr v. Jliiid' of' Torniiti), 10 i.}. B.
MHI, followed in T<i;/lnr v. '.Mii.'<li>; IOC. V. 78.
An atliilavit that the "bill of sale was cxu-
eiited in guild faith and fur g I consideration,"
instead ot, "that the sale is biiiiil tide and fiirgiidd
eoiisideratioii :" Held, under the circuiiiHtaiiceH
of this case, insiitlicieiit. Jhn/ntoii v. lioijd, 12
(', I'. .i;u.
An allldavit that the mortgage was made to
secure the mortgagee ;i>;aiiist the iiayment of
.such lialiility "of," instciidof "for, " the mortga-
gor, by reason of the notes to secure against tlio
eiiilorseliientiif which it was given : Held, sutli-
eieiit. Mothn-K V. Lj/iii'li, 28 Q. B. 354.
H. and i. being indebted to a bank, gave to
T., tlie.igeiit of the branch at II., and to the other
]ilaintitl', their general manager, as trustees, a
nmrtgage to sei'iire it. T. had ini express power
to take this security, the other ]ilaintitr was
absent, and the liaiik on hearing of the transae-
tidii repudiated it. The nmrtgage, made by H,,
I., aiiit S. (if the first jiart, recited that they
were indebted td the niiirtgagees, and had agreed
to secure payment of their indebtedness, but H.
alone assigned the giiiids, with a provisd to bo
void if lliii/ sluiuld pay. The allidavit was that
H., 1., aiidS., "tlieiiKirtgagors," were indebted,
that the instriiliHiit wa.s not executed for the
purpose of pnitcctiiig the goods against the cred-
itors of the said H., I., and S., "mortgagors
therein named, or iireventing the creditors of
the said iiiortgagors, '&c. : Held, that describing
the three as niortgagdrs, M'lien unly H. eiinveyea
anything, was nut a fatal dbjectiim. Qua'i'e, per
(iwyniie, .1., whether the mortgage was within
the statute ;it all, having been tivkeii without the
assent of the bank, and whether the self-consti-
tuted trustees cdiild make the necessary afhdavit.
Toylor ,'l III. v. Ainiill,',l9 (J. 1'. 78.
2. Affular'it and Slatvment on liejiling.
The allidavit of cxeeutiou need not be re-
peated, or any copy of it tiled, on re-filing a
mortgage, litiitij v. Fowler, 10 Q. H. 382.
No allidavit is necessary to verify the state-
ment of the mortgagee's interest required by the
act on re-liling. Ar .tdrong v. Amman, II Q.
B. 498.
A statement made on the 28th of January,
stated the amount due for interest as it would
Im! on the 3l8t, the day of re-tiling : — Held, no
objection. Fram'r v. Bank of Toronto, 19 Q. B.
381.
" Statement of amount still due from the mort-
gagor named in the original bill of sale by way
of mortgage, of which the annexed is a true copy :
that is to say, $212 for principal, and the sum of
$12.. 50 for interest, amounting in the whole to
the sum of $224.56 :" — Held, not to sufficiently
exhibit the interest of the mortgagee in the
' :Mi
679
BILLS OF SALE AND CHi'.TTEL MORTGAGES.
58u
m • 1
gi)od8 claimed, nor shew the principal and
interest duo thereon. U'llatloran v. Sills, 12
C. P. 4(J5.
Held, the nnestion being referred to a judge
in chambers by consent, that the statement bet
out in this case, tiled ujion the renewal of a niort-
fage, was sufficient. Saiiltir v. Carritthers, 9 L.
. 158.— 0. L. Chamb,— Hagarty.
The statement annexed to the affidavit filed
with the copy of mortgage, did not give dis-
tinctly all the information recjuired by tiie act,
but the affidavit and statement together con-
tained all that was necessary : — Held, suliicieiit.
Walker v. iXil,'.o, 18 (.Ihy. 210.
The statement containeil an item of $2.2.'), as
paid for rctiling, which the mortgagee had no
riglit to charge : — Held, not to avoid the re-
filing. III.
3. licifmtration. >
Held, That 12 Vict. c. 74, applies cmly to
mortgages of movable goods, and that there
was therefore no necessity to register a mort-
gage of a term for years. Fnuser v. Lazier, l)
\i. B. 079.
The mortj^age in this case was filed upon an
insufficient affidavit. The defendant was shewn
to be a creditor of the nun Lgagor when the mort-
gage was given : — Held, therefore, that it was
void as against him at the first ; and the court
refused, on the suggestion of the mortgagee, to
question the regularity of the defendant's judg-
ment entered after the date of the mortgage, or
an attachment issued upon it. Jfolmen v. Van-
camp, 10 Q. B. 510.
The description of the mortgagor in the mort-
gage is at most only priiuA, facie proof of his
residence ; and — Held, that in this case, upon
the evidence set out, the jury were warranted in
finding that he had changed his residence to the
county in which the mortgage was registered,
though he had left his family in the county as of
which he was described. Mellish v. Van Nor-
man, 13 Q. B. 451.
Under 12 Vict. c. 74, and 13&14 Vict. c. 62,
a bill of sale of an execution debtor's goods exe-
cuted by a sheriff to a purchaser, whether plain-
tiff in the execution or not, need not be filed.
Kissock v. Jar His, 6 C. P. 393.
Held, before 20 Vict. c. 3, that an execution
coming in before the filing of an assignment is
entitled to prevail, though a reasonable time for
tiling may not have elapsed. Carscallen v.
Moodie, 15 Q. B. 92.
Assignments for the general benefit of creditors
must be registered, unless there is a sufficient
change of possession, /b. ; Maulnon v. Joseph,
8 C. P. 15 ; Heward v. Mitchell, 10 Q. B. 535 ;
S. O. 11 Q. B. 625 ; Harris v. Voinmercial Bank,
16 Q. B. 437.
Held, that a bill of sale (registered) for the
consideration of fis. , with a separate declaration
of trust referred to and forming part of the in-
strument (not registered) was invalid, and that
the conveyance registered must shew the true
and full conBideration for which it is given.
Arnold v. Robertson, 8 C. P. 147 ; followed in
Fraseretal. v. Gladstone, 11 C. P. 1^?.
The fact that the debt is not due to tlie nicrt-
gagee himself for his own benefit, does iKit ijre'
vent the mortgage from being registered uiuler
the statute, lirodie v. Huttan, 16 i). B, 'm
See also, Baldwin v. Benjamin. Jh., ■■yt.
Held, that the furniture, glass, crockery, ialj,
linen, beds, &c., on board a steamboat used ini
carrying passengers on I.ake Ontario, passej
under a mortgage of the vessel witli ail y
apparel, furniture, &c., as part of the vossul ; anj
that the mortgage, being of a registered vussel
was exempt from registry under the Cliatttj
Mortgage Act. Pat/on v. Fay, 9 (J. 1'. ni'J.
Held, tliat the assignment in this case was iioi
avoided by a delay of eight days in registeiiiiL' it
Balk-well v. Beddome, 16 Q. B. 203.
Held, that the registry of a mortgjige does not 1
cause it to relate back to its date : / I'^hm, ,■
Bank of Toronto, 10 C. P. 32; Shaw v. iUu,}! i/i I
C. P. 230 ; Hahjht v. Mclnne.'<, 11 C. P. DIS.
In Feehan v. Bank of Toronto, 10 Q. B. 474
the Queen's Bench came to a ditl'erent cini'
elusion.
[2(i Vict. c. 46, now enacts that the mortgage
shall take effect from its date. ]
One T. B. being indebted to J. B., tlie pl.iintif
gives him a mortgage, covering the goods in (uies-
tion in this interpleader, to secure ;?t)40, datdd the
5th of February, 1858, which was tiled on tlie 1
8th, and was not subsequently retiled ; on the Vix\
February, 1858, T. B. executed an assignment to
R. and (J. for the benefit of creditors, siihjecil
to this mortgage. On the 29th of January, 1S59. (
T. B. made an absolute Ijill of sale to J, B, of
the same goods, which M'as filed on tiie 'Jnd of I
February, 1859. B. and A., the defenilants in I
this suit, recovered a judgment against T. B. on |
the 12th of September, 1861, upon which a li.
fa. was issued, and the goods in dispute scizeilon I
the 30th of December, 1861. .1. B,, the niort- 1
gagee, never had possession of the goods in quei-
tion : — Held, 1. That J. B. never having taken
possession of the property, and no coj)}' of tie
mortgage having been tiled witiiiu tliirty Urn
before the year expired from its first tihiig,it
ceased to be valid against the creditors of
T. B., or any subsequent purchaser or niort- |
gagee in good faith for value. 2. Tiiat tie
di'i' execution and proper filing of the assicii'
ment for the benefit of creditors made it a vJid
instrument, and that upon the expiration of tke
mortgage at the end of tlie first year, this asipi-
ment would take precedence, and cut it oat,
notwithstanding it was expressed on its face to j
be subject to the mortgage. 3. That the biO '
sale of the 29th January, 1859, vested no title in j
the plaintiff', inasmuch as the interest of the j
grantor was vested in the trustees for creihton,
from whom the plaintiff" did not purchase bcnl
tide and for value. The verdict for defeniianli
was therefore upheld. Boynton v. Boyd (t A
12 C. P. 334.
Held :— Burns, J., diss., that under 20 Vict j
c. 3, a copy of an absolute assignment may ^ j
filed, as well as of a mortgage. Hank il A |
V. Commercial Bank, 16 Q. B. 437, followed a |
Perrin v. Davis, 9 C. P. 147.
As to certain goods belonging to the a- j
signor, but lying in the customs warehouew ;
ff"
581
BILLS OF SALE AND CHATTEL MORTGAGES.
582
iect to duties, no change of possession having
taken place, and no compliance being shewn with
the formalities recjuired by the Customs Act, 10
* 11 Vict. c. 31 : —Held, that such goods did not
pass by the assignment. Per Robinson, C. J.—
The statute requiring registration does not apply
to such goods, as they are not capable of delivery,
ami they would therefore have passed if the
directions of the Customs Act had been followed.
Harris et (ti v. Commercial Hank, I(i Q. B. 437.
Goods covered by mortgage were removed from
the county, either on an alleged sale by niortga-
gor or against his will, or stolen from him, and
were sold in another county to defendant, the
mortgagor boing, at all events, no party to the
removal. Just over two months from removal,
the mortgagee, on hearing where they were,
went and demanded them from defendant :-—
Held, that such a removal was not within the
statute, reciuiring a copy to be filed within two
months of the permanent removal of the goods
from the county. Clarke, v. Bates, 21 0. P. 348.
One R. agreed with defendants to (quarry
and get out for them a quantity of stone for
works in progi'ess. To carry out the agreement
defendants advanced money, and by the contract
between theni, it was stipulated, "that upon
all materials upon which the parties of the se-
cond part (defendants) shall have made any
advances, the said parties of the second part
shall have and retain a first lien and jjreference
for all moneys advanced upon the same, or under
this contract, and the same shall become, from the
time of their preliminary construction, the abso-
lute property of the parties of the second part,
subject to the right of the parties of the secoml
part to reject the same, should the same be re-
jected as hereinbefore mentioned ; nor shall the
3ame, unless afterwards reject'id, be removed by
the said party of the first part, R. or appiopriated
; t() any other use than that of the said works ;
5 tut it is distinctly understood that all such ina-
\ tcrials, as well as tools, instruments, and other
[things, shall be in the charge and at the risk of
tthe party of the first part :" — Held, that this
fclanse must operate in defendant's fr.vour, it' at
j all, as a mortgage or bill of sale, and as it had
I not been registered, and the facts, stated in tin;
lease, shewed no sufficient change of possession ;
I that the defendants claiming stone (juarried nn-
I iler it as against a subsecpient bonA, fide purchaser
[could not succeed. Howittv. Gzowxki, flCl y. 555.
See Baldwin v. Renjamin, 16 Q. B. 5'2, p. 575 ;
VArmirmgy. Aimman, 11 Q. B. 498, p. 575.
4. CImnge of po»neiiMon.
Amjnments for the benefit of credUora.] —
[III cimsidering whether a sutticient change of
I possession has taken place to satisfy the statute.,
I^pml must be had to the nature and purposes
W the assignment, and the circumstances of the
Im8i ; and vhen made by a merchant for the
yienetit of his creditors, it is not to be expected
"inat the assignees should remove the goods or
pke exclusive possession, as in the case of an or-
luMry sale. The assignor may continue upon the
|rem'ie8, and assist m disposing of the goods,
r-tnout vitiating the assignment in law, but it
* a fact for the jury as eyidence to shew that
Be transfer was colourable :— Held, that here
the jury were warranted in finding a sufficient
change. MauUun v. Conivwrcial Bank, 17 Q.
B. 30.
Where a debtor just before several execu-
tions issued again.st his property, assigned it all
to trustees for the benefit of his creditors, de-
livering to the agent of the trustees one article
in the name of all, and then took down his name
from over his shop door, but remained with his
clerks in the posses.sion of the goods, selling
them as if his own, but accounting to the trus-
tees for the proceeds ; and the property was taken
under the executions by the sheriff : — Held, in
trespass by the trustees against the sheriff', the
jury having negative<l their possession, that a
verdict for the defendant was correct. Arm-
slronij el ul. v. Mooille, 6 O. S. 538.
The evidence, as stated in this case, was held
not sutiicient to shew an actual and continued
change of possession. Heward v. Mitchell, 10
Q. B. 535.
The plaintitfs, assignees for the benefit of cred-
itors, proved clearly a delivery of the goods ;
but it was shewn that they had employed the
assignor's clerk as their agent to keep and sell
the goads in the shop, and that he had in some
instances, without their knowledge, permitted
the proceeds to be applied in payment of some
small claims against the assignor, and once had
paid money into the bank to the credit of the
assignor, that be might tlraw a check for it
immediately, to pay a privileged claim which
they had iiistructeil their agent to pay ; but
the plaintiff's knew nothing of the deposit in
the bank, or of the drawing the check. It also
appeared that their agent took no steps to give
public intimation of the change of possession,
ei .her directly or by removing the assignor's
name as the party carrying on the business,
though he made weekly returns of sales to the
assignees ; and this seemed to have been done at
the solicitation of the assignor, who represented
to him that he hoped to make arrangements
.again to resume the business. It appeared, too,
that the f.ict of any change having been made
was generally unknown in the neighbourhood ; —
Held, that upon this evidence it was properly
left to the jury to say whether there was an
actual and continued change of possession, and
that they were warranted in finding that there
was. Foster et at. v. Smith, 13 Q. B. "243.
As to the goods in the warehouse of the
assignor, C!., who had beer his clerk and book-
keeper, was employed by the plaintiff's, assignees
for the benefit of creditors, as their agent to
dispose of the stock, and collect the debts due,
&c, ; anil he took possession accordingly, opened
new books in the name of the assignees,
and sold and collected the assets under their
instructions, bat continued in the same place,
tho name of the assignor remaining above the
door aa usual : — Held, a suiticient change of
possession within the meaning of the Act. Harris
et al. V. Commercial Bank, 16 Q. B. 437.
Held, that the facts, stated in this case, did
not shew a sufficient change of possession to dis-
pense with filing. Wilson v. Kerr, 17 Q. B. 168.
Ottwr Cases.] — Quivre, per Robinbon, C. J.,
whether, when as to part only of the goods
assigned there has been no change of possession,
tho assigiiUiBiit. ••-Ic.""' filed, is voM altogether.
1 '
I
t
ii 1 ii
rH
; t.'
1 M!
:i ,
i \
683
BILLS OF SALE AND CHATTEL MORTGAGES.
m
Olmstecul v. Smith, 15 Q. B. 42). Heo Short v.
Sultan, 12 Q. B. 79 ; Harris v. Commercial Bank,
16 Q. B. 4.S7.
Held, that although the deed in this case, for
want of registry, could have no effect with re-
spect to the furniture, of which there had been
no sufficient change of possession, yet that it was
not thereby avoided as to those goods which
went into and remained in possession of the
assignees. Taylor v. W hitleuwre, 10 Q. B. 440.
An interpleader issue is to be taken distribu-
tively, and an assignee sliould succeed as to any
part of the goods of which there has l)een a
change of possession, though as to the rest the
assignment may be void for want of registry.
Feehan v. Bank of Toronto, 10 C. P. 32.
M., a ship builder, carried on his business
in a yard leased from A. The plaintiff sent two
vessels there to be repaired, but M. not having
sufficient means, it was agreed that the plaintiff
should furnish the materials, and he purchased
from M. for the purpose, some oak timber then
in the yard. The plaintiff's foreman took pos-
session of V\j, and a portion had been workecl up
by the plairi*:iff's and M. 's men, when A. dis-
trained both it and the vessels for rent : — Held,
there had been a sufficient change of possession
of the timber to dispense with a registered
assignment, and that both it and the vessels
were exempt from distress. Gilderskavc v. Ault
etal, IfiQ. B. 401.
One Robins agreed to make for lluthven, the
execution debtor, an iron fence for which liuth-
ven furnished him with the iron, and paid a
certain sum on acoount of the work. Being
unable to pay the balance, G. advanced the
money, taking lluthven's note, and the fence,
which was then in llobin's yard, was delivered
by lluthven to him to hold for (I. until payment
of the note, but there was no written agreement.
When the note fell due Ruthven authorized G.
to sell the fence, but it remained until it was
seized under an execution against Ruthven : —
Held, that the execution could not prevail against
G. 's claim. Gurnei/i'tal. v. James, 19 Q. B. 150.
On an interj)leader to try the title to two loco-
motives, it appeared that when they were lialf
finished, plaintiff verbally agreed to buy them
from the manufacturer for a certain sum, for
which he was to finish them : — Held, that the
Chattel Mortgage Act did not apply, a change of
possession bemg impossible under '■he circum-
stances. Burton v. Bellhome, 20 Q. B. GO.
A mortgage to secure the mortgagee against en-
dorsement or contingent liabilities, unless there
is a delivery and change of possession, must be
registered ; and the liability for which it is given
must accrue due within one year from its date.
Turner v. MUU, 1 1 C. P. 366.
Plaintiff, on the 31st May, 1861, purchased
and paid for a carriage from F. , a carriage maker,
for $175, but did not remove it from the shop.
Shortly after the plaintiff's wife saw another car-
riage building, which she preferred, and it was
agreed that the plaintiff should have it if he
chose, for an additional sum, the one first pur-
chased to be his if he did not take the other.
At the time of the sale the defendant, as sheriff,
held an execution against F. , of which F. had
notice, and he received another after the sale.
F. carried on business as usual, with defendant's
consent, and defendant did not seize till the lltli
June : — Held, that the plaintiff, having left th
carriage in the vendor's hands more than a reason'
able time for its removal, the sale came within the
act, C. S. U. C. c. 45, and there being iiodflivtrv
and change of possesion, nor any bill of s:ile tiled
the property remained in F. 's hands liable u,
seizure. Garruthernv. liajnohln, \2 V,.\\^%
Plaintiff bought from R. a number of ,siioi;|,
paying him part at the time ami tlio l.alan't
within a few days. Upon the first iiaynn,.,it
being made plaintiff marked the sheeji with rt,|
paint as his property, and they were tlien placeil
apart from the rest of R. 'ssheepina s(,M)arat«
field on the hitter's farm, where they were t(
remain until required by plaintiff. Plaintiff' w,ii
a butcher, and it appeared to be the eustdu"
among butchers to leave with fanners stock
purchased from them until convenient to remove
it. This had also been the course of dealing,
between plaintiff and R. on previous occasions'
The sheep thus remained on R. 's premises iintii
seized ander an attachment against R., as an
absconding debtor : — Held, that the mere mark
ing of the sheep, or the removal of diem from
one field of the seller to another, did not consti-
tute a sufficient delivery or change of possession •
Held also, that there was no evidence of a snttiii-
ently established custom or Mode of dealing amoin'
farmers of treating as their own, proiieitv realiv
belonging to others, to put third parties uiion
enrpiiry as to the actual oMuership. (,)uaro,
whether such enquiry would l)e adniissihl'o in a
case arising under the statute in question Ikiik
V. Lasher, 16 C. P. 263.
The defendants, warehousemen, hohlini' cer-
tain grain for one M., gave him a waa^house
receipt, which on the 3rd September he emlorseil
to the plaintiff, who had purchased tlie grain
either from or through him. On the nth Sep-
tember, the sheriff received a ti. fa. against M..
under which he seized, and M. having on the
22nd made a voluntary assignment in insolveucv,
the sheriff gave an order for the grain to the
assignee. 'I'he plaintiff brouglit detinue >:A
trover against defendants, who liad shippeil a
portion of the grain to him on the i'i\\\ (Ictn
ber, but retained the rest :- -Held, that he was
entitled to recover : that the grain ])iisse(l tothe
plaintiff l)y the sale ; and there was a sufficient
change of possession, and the only one that tlie
nature of the case pennitted, in the fact that
upon and after the sale the defendants lieM tie
grain f(jr the plaintiff, instead of for M., who
was not himself in actual possession when he
sold. Richardson v. Gray et al. , 29 Q. li. M.
To make valid against creditors of tlie vemk
a sale of timber to he cut down l)y him, there
must be .an actual delivery to the purchaser,
after the timber is cut down, followed hy an ac-
tual and continued change of possession, as in
the case of other chattels. McMillan v. J/r-
Sherry, 15 Chy. 133.
It is not a question of law, but for the ilecision
of a jury, under all the circumstances, whether
there has been an immediate and contimieJ
change rt possession sufficient to satisfy the
statute. Waldie v. Gramje, 8 C. P. 431.
The assignor remained in his store after tie
assignment, having the same clerk, and his siji
remained over the door, nor were any goods n-
m
585
BILLS OF SALE AND CHATTEL MORTGAGES.
58G
•.>3nl I'ttii-
, that lio w;is
])asseil to the
■is ;i suthcient
J imetlwttlie
Ithe fact that
laiits lielil tie
fnr M., who
lion when te
» Q, B. 3W,
If the vciiil-i
ly him, tlwe i
le jiureliis* ]
Ted l>y an ao- |
lesHidii, as " '
[i//(IH V. .1/f
I the decision
Ices, vlicttet
ll COlltillMil
satisfy tlie
I 431.
Ive »ft«r th(
liimlhissi?
Iny goods If
moved. There was no evidence of change of
iiossession that could be apparent to others than
l^ies concerned, and the bill of sale y/ns not
filed :— Held, not sufficient change of possession.
McLfwlv- Hamilton, 15 Q. B. 111.
Where the lan<l and buildings on which the
chattels are conveyed by the same deed as the
chattels, the assignee, though held to be in
jjeaainn of the land by virtue of his deed, is
uot to be looked upon as having taken possession
of the chattels also, so as to dispense with filing
the assignment ; he must either actually take
nossession of the buildings, or the assignor must
go out. CorMidkn v. A foodie, 15 Q. B. 92.
C owning a mill, with the machinery in
it assigned the whole property, both real and
Dcrsonal, including the lumber, stock in trade,
ic on the premisbS, to the plaintiff, in trust for
himself and other creditors. The deed was
registered on the day of execution, but not Hied
in the County Cr)urt, when, on the day after the
execution, the sheriff seized the machinery, &c. ,
uniler a ti. fa. against goods ; nor was the deed
afterwards tiled. The assignor did not leave the
mill, but continued to work it with his men for
the benefit of the assignee :— Held, 1. That there
was uot an actual and continued change of
possession ; and, 2. That for want of tiling the
assignment the ti. fa. must prevad. Ih.
Held, that the change of possession in this case
was sufficient, and being complete before the
defendants' ti. fa. was placed in the sheriff's
hands, the plaintiffs were entitled to recover.
Taiiloretal. v. Comnierciat Bank; 4 C. F. 447.
Held, under the facts of this case, that if the
j mortgage had come within the act it would have
ken void, not having been kept in force by
liegistry, or accompanied by change of posses-
|aou. Fraxr v. Lazier, 11 Q. B. GTS).
On the 18th of July, 1851, one M. gave the plain-
Itiff a mortgage on certain goods, which was duly
jjeristered on the following day. On the Kith of
tjuly, I8ii2, he executed another mortgage, but
El secure a smaller sum, the goods assigned
lleing, with a few exceptions, the same as the
Trst; this was registered on the 19th. On the
ihe same day, and before the registry, a ti. fa.
Eiinst M. was placed in the sheritt''s hands.
here was not in the case of either assignment
ny actual delivery of goods : — Hehl, that the fi.
1 was entitled to prevail ; that the tii-st mort-
age was waived by taking the second, and was
perefore out of the (piestion, though in any case
k would have ceased to l)e in force after the 18th
i July, and the second tiling would have been too
kte. McMarlinv. McDoiigaU, 10 Q. B. 399
|See.S';iort v. Riitlan, 12 Q. B. 79, p. 574; Ciim-
mj^i v. Morijan, 12 Q. B. 565, p. 574 ; Jfarrin
iCmimerciallinnk, 16 Q. B. 437, p. 581 ; Howell
tilcFarlane, 16 Q. B. 469 p. 588 ; Hulehimn v.
terf*, 7 C. P. 4?0, p. 588 ; Milk v. Kin<j, 14
. P. 223, p. 590.
5. Re-filinn.
^\here a mortgage was re-filed forty-seven
' Iwfore a year from the first filii -x, it was
ilil insufficient, the statute requiring that such
►filing shall take place ' ' within thirty days next
seeding" the expiration of one year. Beaiu v.
*,10Q.B.382.
Held, that where the first filing was on the
15th May, 1852, a re-filing on the 14th May,
1853, was clearly in time. Armntromj v. Ana-
man, 11 Q. B. 498.
Held, that a mortgagee, to retain his priority,
must, under 12 Vict. c. 74, continue to re-file his
mortgage after the first re-filing at the end of the
first year. Kixsockv. Jarim, 9C. P. 156.
Mortgages tiled under 12 Vict. c. 74, held not
to re(iuirc re-filing under 20 Vict. c. 3, which
repeals it. (.'nUuden v. MeDowdl, 17 Q. B. 359 ;
Grand Trnnk Bailwai/ Co. v. Lees, 9 C. P. 249,
Where possession had been taken under de-
fault in the mortgage within a year from its
filing : — Held, that re-filing was not necessary.
JioM y. Elliutt, 11 C. P. 221.
E. mortgaged a horse to defendant in April,
18(54, with a proviso that if he should attempt
to dispose of it defendant might take possession
and sell. K. did dispose of the horse to the
plaintiff within a few weeks. The mortgage
was not refiled, but the defendant took another
in February, 1865, for the same money, with
other advances. In July, having first discovered
the sale, he seized under the proviso : — Held,
that having neglected to refile the mortgage and
taken another, he had lost his right to seize.
Courtis V. Wehh, 25 Q. B. 576.
One S. , on 25tli March, 1868, executed amort-
gage to plaintiff', payable the following October,
with a proviso tliat on default the plaintiff,
instead of selling the goods, might take posses-
sion iis absolute owner. On default being made
plaintiff accordingly went through a form of
taking possession, without, however, any change
in the possession, or any assignment of the mor-
i gagor's interest taken or registered, and exe-
cuted a lease of the goods to the mortgagor.
After default, and before this taking of posses-
sion by plaintiff', an execution against the goods
was placed in the sheriff's hands, but no seizure
was made until November, 1869, after the expi-
ration of the mortgage, which had not been re-
newed : — Held, that the transaction between the
parties was void, and that the execution took the
goods. Chamherlain v. Oreen, 20 C. P. 304.
The owner of land upon which there are
fixtures, such as machinery in a mill, has the
right to sever the chattels from the realty ; and
therefore a mortgage by him upon the lixtnres
was held, not to be prejudiced by his subse-
(pient mortgage of the land. The mortgage was
not re-filed within the year, but within the year,
the mortgagoi- having sold the fixtures, the pur-
chaser gave the mortgagee a mortgage of the
same in substitution of the original mortgage,
containing a recital of that mortgage, and of
the sale of the fixtures to him subject thereto,
and thjit he had obtained an extension of time
on condition of giving this mortgage for the
sum unpaid : — Held, tliat the omission to re-
file did not give the mortgagee of the land
priority, for he could not be considered a " sub-
sequent mortgagee in good faith for valuable
consideration, ' within the statute ; and that
the prior severance of the fixtures continued
down to the giving of the second mortgage, which
carried it on by its recitals and legal effect.
Semble, that if the chattel mortgage were paid off,
the mortgagee of the realty would then be enti-
1 tied to the fixtures. Rose v. Hope, 22 0. P. 482.
:;-,t
f^:i^i
:M
587
BILLS OF SALE AND CHATTEL MORTGAGES.
1:
i ■'
An immaterial variation between a mortgage
and the copy tiled iloes not invalidate the re-
filing. IViilhrv. Mk-i, ISC'hy. I'lO.
A mistake in the copy in tlie number of tlie
lot wliere the chattels were, was liehl to be
immaterial under the circumstances. //(.
The statement contained an item of $2.25 as
paid for re-tiling, whicli tlie mortgagee had no
right to charge : — Held, not to viti.ite the instru-
ment. J h.
See McMartUi v. MrDomiaV, 10 Q. B. 399, p.
585 ; Boijnton v. Boyd, 12 C. P. 334, p. TiSO.
IV. Dehcription of Goods.
A mortgage on saw logs will bind the lund)er
into which they are sawn, but the mortgagee
must prove that such lumber was made out fif
them. Whit,' v. Brown, 12 Q. B. 477.
Held, before 20 Vict. c. 3, tluv*- goods i'.i a
mortgage were sutiiciently describt I as "all the
stock of dry goods, hardware, crockery, groceries,
and other goods, wares, anil inercliandise in tlie
store and ])reniises occupied by tlie mortgagor
at," &e., if it were clearly made out that tliose in
question were in the mortgagor's store, and his,
at the execution of the instrument; and -Held,
also, that the evidence of identity inthisciise was
sufficient. Horn v. Vonijo; 14 Q. B. 525.
A deed was executed by J. N. Kline & Son, of
blie first part, whereby — after reciting that they
had proposed and agreed to assign '(// ///(((• inr-
soiial I'titntc and i-jfccfs to certain parties of tlie
second part — they conveyed and assigned to the
said parties "all and singular the stock in trade,
goods, merchandise, sum and sums of money,
bills, bonds, drafts, mortgages, books of account,
of what nature or kind soever, belonging to or
due or owing to the said parties of the first part,
and which arc xft forth in the .irhidiil'' hrnti)
annexed, inarhd irith the letter "A," and. Midi-
scrVied III/ the pnrtien hereto of thr fr-tt and
second jiartx : and all the jier.sonal estate irhat-
.soerer of tlie -taiil partkx of the first //art, and
all their estate and interest tlierciii. " No sche-
dule was attached to the deed at its execution,
but schedules were afterwards annexed, signed
John N. Kline & Son, John N. Kline, juiir.,
Anthony Kline : — Held, that independently of
the schedule, the words of the assiiinment were
large enough to include both the individual and
joint personal property of John N. Kline. J/ew-
ard V. Mitchell, 10 Q. B. 535.
Plaintitt' claimed under an iissignmcnt which
had a schedule of goods .attached, intended to l)e
passed thereby. The goods in ijuestion had
gone into the store prior to the execution of the
assignment, and were not in the scheilule : —
Held, that the ivssignment only passed what was
contained in the inventory. Gunn v. liuttan, 7
C. P. 516.
All the goods, chattels, furniture, and house-
hold stuff "now in Sword's Hotel, Toronto, or
particularly mentioned and expressed in a certain
schedule marked A, hereunder written or here-
under annexed, " will not include goods not in
the schedule. Kinijstonx. Chapman, 9C. P. 130.
N. & Go. by deed assigned to M. all and singu-
lar the "furniture," &o., "and efi'ects of them,
I the said N, & Co., and which will be n),,,.
jiarticularly mentioned and described in the suhe.
diile to these presents hereafter to he annexed
marked A., and all other their per.soniil estate
and effects whatsoever and wheresoever sitn.
ated. " The schedule was not filled up at the time
of executing or filing the assignment, but was
afterwards Hlle(,l up by a third person witliiiiit
reference to the assignors, and the Ixioks in
(picstioii were mentioned in it, but I'enmineil in
their po.ssession. Afterwards \. t Cd., i,,.
another deed, assigned to the plaintilf all tli
delrts owing to them, giving him power to n.
amine and take extracts from their accijunta for
the purpose of making up and adjusting suili
debts properly. The books were hamleil tdtlie
plaintiff by N. &Co., in pursuance of this iletj
and having been taken from him by defeinlant
he replevied. Defendant set up ^I. 's lii/ht ;-
Held, that the plaintiff" was entitled tn recover
for the scliedule to the first assignment, tilled uj
as it was, could have no efi'ect, and tlie lidokj
did not pass under the operr.tive words, t'rmf
fords'. Brown, 17 Q. B. 12G. ' i
A trader, in consideration of a debt, by deeil
assigned to the plaintiff all his stoek in tnule
&c., on certain premises, " or in course nfde'
livery to him:' — Held, to pass his intenst in
goods lying at the wharf in the town where lie 1
resided, but not actually delivenjd to him. 1/f. j
Pheraon v. Bei/nolds, 6 C. P. 491.
"All my stock in trade, goods, wares, and mer-
chandise in my store situate at,'" ite. Semlile
not sufficient ; but it was unnecessary t(j decidt |
the (juestion, as there had been a change nf pus-
session. Hutchimn v. ffoherts, 7 C. 1*. 470.
" All and singular his stock in trade, chattels,
debts," &c., an<l "all his personal estate ami I
efi'ects whatsoever and wheresoever :"— Heid,as
there had been a change of possession, tliattlieiO
\'ict. c. 3 did not apply, fitherwise the descrip-
tion would have been insufficient. //««v//v
MrFarlane, 10 Q. B. 409.
All the assignor's "stock in trade, Wiues,
merchandise, groceries, household furnitiuf.anii
movable personal property in, u])oii, or litlmig
ing to his store, <lwelling, warehouse, wlwrf,ainl
tenement in Ontario .street, in the city of King-
ston, or else wliere (save and except and exelinling
the goods and chattels of the said <l. K.,"tk
assignor, "in the possession, control, or ciiaije
of 1). McW. of Adolphustown only,) andalsoall
his stock in the Kingston Marine RaihiavCnm-
pany :"— Held, that shares in the Kay of (^uinte
Steamboat Company would not pass. Ikicitli.
Corhett, 15 Q. B. 39.
"All the horses, mares, cows, heifers, calves, •
shec]), lambs, pigs, waggons, buggy, iianies, ,
farming utensils, hay, houaehold furniture, hwh j
and every other article or thing on or alxint tke
sfiuth half of lot 24, in," &c. :— Held, sufficient |
Balkwell v. Beddome, 16 Q. B. 203.
All the goods, &c. , of the assignor being in j
and about his warehouse on \. street, ami i j
his furniture in and about his dwelling-liouseM j
W. street, and all bonds, bills, and seenriMJ
for money, loans, stock, notes, &c., wlwtswvef,!
and wheresoever, belonging, due, or owing Bj
him :— Held, Buflieient. llarris v. Comma«i\
Bank, 16 Q. B. 437.
m
589
BILLS Of SALE AND CHATTEL MORTGAGES.
590
m, that the '20
|4C tlie ik'scrip-
V.
Itraile, wares.
Ifm'iiituiT.anJ
1)11, (ir bcliin?-
[sc, wliiu-i, aiiil
■ity "f King-
liviuiexcliiiliiij
Ll.l. F.."the
]vnl, (ir char|i«
anil fiw
llvailway i'»-
h\ny (if Quints
[ss. i/eici'"'
leifcrs, calves, :
Iggy, hanies.
Ynitiirc,l)i*
|i or al)oiit tk
|el,l, suicient j
Lmnr Iwing « ,
ttrcet,aml»a
llliiig-lwusewl
luul seciiriM]
I, wliatsixvei,"
or owing w I
i.jYlland singular the stock in trade of the
laid ^^'•>" '1'^ assignor, "situate on Ontario
street, in said town of Stratford, and also all
his other goods, chattels, furniture, household
effects, horses and cattle, and also all bonds,
bills, notes, debts, choses in action, terms of
veark leases, and securities for money ;" -Held,
iusuttieieiit as to all the goods. llV/.sr.// v. Kirr,
17 Q. B. 1()8 ; atHrmed in Appeal, 18 i}. B. 470.
"Seven horses, three lumber waggons, one
carriage, one pleasure sleigh, all the household
funiiture in possession of the said party of tiie
first part, and being in his dwelling-house, all
the lumher and logs in and about the saw mill
and iireuiises of the said grantor, and all the
hlacksmith's tools now in jiossession of the said
party of the tirst part, six cows and four stoves :"
—Held, a sullicient (lescription as to the house-
hold furniture, lumber and logs, and insulhcient
,18 to the other goods, h'uxc v. Srott, 1" (). B.
385.
Held, that the furniture, gHss, crockery, table
linen heds, &c., on 1" -rd c, steamboat used for
carrying passenge. Lake Ontario, passed
under a mortgage .. ihe vessel with all her
apparel, furniture, &c. , as part of the vessel ; and
that the mortgage, being of a registered vessel,
was exempt from registry under the Chattel
Mortgage Act." Pulton v. Foy, 9 C. 1'. r)12.
A mortgage not sufficiently describing the
eoods is void as against subsci^uent purchasers in
mod faith, and notice of such mortgage to the
imrchaser will iK)t affect his right. Moffiitf v.
Codm, 19 Q. B. 341.
The goods were described as set forth in the
schedules annexed. Schedule V, was headed,
"Household furniture in J. E. W.'s residence,"
L and specified the several articles in detail, giving
a list of those contained in each room, from
which the sheriff said he had no difficulty in
nJentifying them ; — Held, sutHcient. Schedule 1)
: was headed, "Househohl furniture and i)roi)erty
: of J. R. Mcl)eriuott, " and the several apartments
; containing the furniture were specified. Hehl,
talso, sullicient, as it might be assumed to refer
Ito the party's residence. Eraser v. Botik of
\fwmio, 19 Q. B. 381.
Held, if it were necessary to determine that
Ipoint, that the two locomotives sold were suffi-
Iciently described in the deed set out in this case.
Piir(o« V. Bdlhomi; 20 Q. B. 60.
In an assignment the goods were descrilied as
|"aU the housshold furniture, goods, chattels,
ad effects belonging to and being in the dwell-
Bg-house of the said Burrowes, and which are
numerated and set forth in the second schedule
hereunto annexed ; and also the stock in trade,
nplementii of business, and machinery in the
laid schedule enumerated and set forth. " In the
largin of the schedule different localities were
Mentioned, and opposite to them the goods spoci-
jed, the articles m question being as follows : —
able and coach house : three horses, three sets
f harness, one straw-cutter, one cow, one cutter,
Wo bngtties, &c. Lumber yard : two waggons,
e pair bob-sleighs, four wheel-barrows, tressels
' scaffolding, old lumher, tt'C, two thounaml
m of oak and hardwood plank and hoardit, si.cti/
mmndfeel of prime asmrted nizes, two thousand
iif flooring, one pair of timber wlieeln, one
^ndmrt, two yard dogs, cut atotte .—Held, that
the articles in italics were sufficiently described,
and passed as stock in trade, and that the
description as to the others was insufKcient.
Hawnrth v. Flit,li<r, 20 Q. B. 278.
An assignment of "all the stock in trade,
merchandise, goods, and effects," in the shop
occupied by the assignor, situate on the south
side of King street, in the city of Toronto, and
kuipwn and numbered 77, which said goods and
chattels are particularly mentioned in the sche-
dule annexed hereto, ami marked A:" which sche-
t dule began, "stock in workshops," and went on
I describing what was therein, and next described
what was in the front store : — Held, sufficient to
I i)ass not only what was contained m the front
shop first dcscriltcd, but what was contained in
a continuous siiop consisting of the front store
and two workshops. Xovll v. I'vll, 7 L. J. 322.
— C. L. Cliandj. — Draper.
"14,415 feet of prepared moulding
11 d
ute. Ih.
a sufficient and full
Held,
lescription under the stat-
Theprojierty was described as "the goods, chat-
tels, furniture, and household stuff' expresseil in
the schedule herei'uto annexed," which schedule
was headed, "An invcntoryof goods and chattels
in the possession of one .1. It.," on a named day.
it proceeded to mention certain rooms and the
articles therein contained ; then jewellery, blan-
kets, houseluild linen, silver, &e., the locality of
the house in which the goods, &c., were con-
tained not being mentioneil : — Hehl, sullicient.
Pi„n-ll\: Bank of U. (.'., 11 C. P. Wi.
C. and J. , by mortgage, dated (ith February,
18().S, conveyed certain goods, menticmed and
described in schedules attached thereto, to the
plaintiff. Some of the goods menticmed therein
were in possession of the manufacturer, one R. ;
other portions were in certain rooms in the
American and Burlingtfui hotels. The descrip-
tion given merely designated a portion of the
property by locality, giving no particular descrip-
tion, and was as fidlows : "All and singular the
goods and chattels, furniture, household stuff',
and articles particularly mentioned and expressed
in the schedule hereunto annexed, and which
are now in the warelnmse of .James Reid, in the
city of Hamilton, and are about to be placed in
the building known as the Burlington Hotel."
The schedule began : ' ' Schedule mentioned and
referred to in the annexed indenture : one set
parlour furniture," &c. (describing some articles),
" in parlour H. One walnut bedstejvd," &c. (de-
scribing several articles) "in parlour C:"- — Held,
1 . Upon the authority of Frazer v. The Bank of
Toronto, 19 (}. B. 381, and Powell v. The Bank of
Ujtper Canada, 1 1 (!. P. 303, that all the goods
in the schedule described ivs having been in cer-
tain rooms in either of the hotels, passed by
the mortgage ; 2. That all the goods descrilied
as being m certain rooms, and which were not in
those rooms at the time, diil not pass ; 3. That
goods d escribed specifically (as one omnibus, &c. , )
withoUv any local description, passed, under the
authority of the same cases ; also, because the
description would be sufficient in detinue ; 4.
That all the goods which were made at the time
of executing the mortgage, and were the pro-
perty of the mortgagors in Reid's warehouse,
passed under the mortgage as a distinct grant
from those in the schedules. Mills v. King, 14
0. P. 223.
M'^
1 1
j i
m
■ J / '
\:0m
pi
hmhb
i'j , , ;
■
1
i ! ' '■
"ill
591
BILLS OF SALE AND CHATTEL MORTGAGES.
5(i3
Some goods not mentioned in the schedules
were delivered Ijy one of the mortgagors to the
plaintiff's agent, on the 4th May, 1863 ; the
sheriff received tlie execution on the 27th : —
Held, that such delivery was good against the
sheriti: Mill^ v. Khuj, 1 C. P. S-.'S.
The goods were specified as particularly men-
tioned in a scliedule annexed, in which they
were described as one l>uggy, one cutter, one cart,
one bread sleigh, two sets of harness, one horse,
(Hie chaff cutter ; and tlie foHowing household
furniture, namely, in the small parlour, one
stove, &c., enumerating the articles in different
rooms : — Held, sufficient as to the furniture, but
insufficient as to the other goods. Sutlu-iiand v.
Nixou, 21 Q. B. 029.
"One set of double harness, four cows, one
yoke of steers, four yearling calves, eigliteen
sheep, one sow and piga, two waggons, one
cutter, one sleigh, two ploughs, one liarrow, one
cultivator, one straw cutter, tliree stoves, two
dozen chairs, four tables, five l)edsteads, bed
and bedding, two bureaux, one side-board, two
carpets," called goods, cliattels, furniture, and
household stuff, without stating wliere tliey
were situate or in whose possession : -Held, in-
sufficient ; but semljle, that tlie mortgage was
good to pass otlier projterty properly (lescril)ed.
mscott V. Murray, 12 C. P. .31.5.
Qufere, are the words, "all bills, bonds, r.ates,
securities, accounts, books, luiok debts, and docu-
ments securing money," in a gener.al assignment
for the benefit of creditors, sufficient to pass a
Eolicy on the life of tlie assignor held by him for
is own benefit. Lee v. (Jorrie et a!., I L. J. N.
S. 76.— C. L. Chamb.— Eichards.
The goods were described as ' ' all the goods in
the house of the mortgagor ; in bedroom No. 1,
one bureau," &c., describing the articles in each
room, and adding, "all tlie hereinbefore de-
scribed goods and chattels being in the dwelling
house of tlie party of the first part, situate on
Queen street, in the town of Brampton ; also,
one bay mare, one covered buggy," &c., "being
on the premises of the party of the first part on
said Queen street ; also the following goods and
articles, being in the store of the party of the
first part, on tlie corner of Queen and Main
streets, in the said town of Brampton ; that is
to say, eighty-five gallons of vinegar," giving a
long list ; "and also the following goods, being
of the stock in trade of the party of the first
part, taken in the month of April last ; that is to
say, sixteen pieces of tweed, &c. : — Held, that
all the goods were sufficiently described, for the
last parcel of goods might be taken as described
to be in the store. Mathers v. Lynch, 28 Q. B.
354.
Remarks as to the insufficiency of description
of goods by locality. Ih.
See Corporation of Ijanark and Renfrew et al.
V. Cameron, 9 C. P. 109.
V. Consideration and Bona Fides.
i. Morf Images to secure Advances or as Indemnity.
Tlie mortgage was given, as appeared by the
recilali in it, to secure the plaintiff against
endorsements for the mortgagors, and before the
re-filing he bad taken up most of the notes and
renewed them by his own notes, to which tW
mortgagors were not parties : — Held, that tlie
mortgage was not thereby invalidated. />«»,
V. Jiunk of Toronto, 19 Q. B. .381.
Quftjre, j)er McLean, C. J. , whether a mnn.
gage to secure advances in Hour is witliin (.'. s. \;
( !. c. 4.5, s, .5, or whether only advances in iniinpj
are intended. Semble, per Burns and Hagaity
.J J. , that the act extends to advances either iii
money or goods. Sutherland v. Xijvii, 21 (j
B. 629. ^
Where advances were to be made in sunia anj
at times specified, and a mortgage taken to
secure their repayment : — Held, that a (lejiarture
from the agreement in the times and niaiiii(.r oi
such advances could not alone defeat the mort.
gage, though it might be urged to the jury ^
against the bona fides of the transaction. Simmt
V. Billon, 22 Q. B. 223.
A mortgage under C. S. U. C. c. 4,5, s. i"), may
be given as security against past or cimciirreiit,
but not against future, endorsements (ir hahilj
ties. If it did not apply to past liabilities, then
a mortgage to secure against them wnulil ndtli^
avoided by the act for want of compliance witli
its provisions. Mathers v. Lynch, 28 Q, B. 354.
A recital that the plaintiff had eiidorseil three
notes made by . J., giving the dates, sums, and |
the time of payment, for the accoinuio(hatiim of
J. , a.id that .J. had agreed to enter into the mort-
gage to indemnify and save harmless the mort-
gagee of and from payment of said notes, ami
from all liability or damage in respect thereof ;
— Held, clearly sufficient. Ih,
See Boulton v. Smith, 17 Q. B. 400, 18 Q B I
458, p. .574 ; Clnrkv. Bate^, 21 V. P. 348, p. "Co';
Beecher v. Austin, 21 C. P. 334, p. .577; kjiw-
son v. Patemon, 18 Q. B. 5.5, p. 593.
2. Other Cases.
The facts that a bill of sale, on the face of it j
absolute, is in truth only a niortg.ige, ami that
the vendor after the sale is allowed to remain in
possession of the goods, are both badges of franJ
to be weighed by a jury, not conulusive jir^fi j
of fraud. Hunt^ v. Corbeft, 7 Q. B. "5, i
The mortgage in this case was filed upon an ii-
sufficient affidavit. The defendant was shewn to
be a creditor of the mortgagor when the mort-
gage was given : — Held, therefore, that it was
void as against him at the first ; and the cuiirt
refused, on the suggestion of the mortgagee, to
(piestion the regularity of the defendant s jiiiig-
ment entered after the date of the mortgage, or j
an attachment issued upon it. Holmes v. I'im-
camp, 10 Q. B. 510.
By the mortgage the mortgagor was to con-
tinue in possession, selling the goods, aiidaccoimt- j
ing to the mortgagee for the proceeds on demanii;
— -Held, not to invalidate the mortgage, or affoni
per se any evidence of fraud. Rom v, Cmp, j
14 Q. B. 525
Held, that a bill of sale (registered) for tk
consideration of 5s. , with a separate declaratiM j
of trust referred to and forming part of the ii-
strument (not registered) was invalid, ami tkt
the conveyance registered must shew the truM
and full consideration for which it is giva
^\ifiLI
693
BILLS OF SALE AND CHATTEL MORTGAGES.
5U
The plaintiff claimed g<
duly tileil. The main qii^
A,-noM V. RoherUon, 8 C. P. 147; followed in
t'rawtl al. v. Gladslone, 11 C. P. 125.
da iiuder a mortgage
tion was the conside-
''"t/nii for such mortgage. The jjlaintiff proved
that it arose mainly for goods left in the mort-
iragor's possession by the plaintiff's grandfather.
The jury having found for the plaintiff", the court
refused to interfere, llarrlmjton v. Mamh, 8 C.
P. 227.
Where a debtor mortgaged all his personal
nroperty, including the most tritiing articles, to
secure a debt very small in proportion to their
value : -Held, that although no evidence of value
WM uiveii, and the bona tides of the debt was
not liisputcd, it should have been left to the jury
to say whether these circumstancoa were not
sufficient tti biiew that the deed was made, not
tor the security of the assignee, but for the pur-
noses of the debtor, and to shield his j)roperty
{roni other creditors. Fleming v. J/cA auijhten,
16 Q B. 194. >^co, also, Balkwt'Ilv. Beddome, IC
Q.b!203.
Of the household furniture there had been no
change of possession, and the court being left to
draw the same inferences as a jury would :—
Held, per Robinson, C. J.— That notwithstanding
the registration of the assignment, such furniture
did not pass;— Per Burns, J.— That it did not
pass, because the assignment was not properly
registered by filing acopy only. IfairLi et id. v.
Coinmrcial Bank, 16 Q. B. 437.
The consideration in the mortgage being
stated at £10,000 and upwards :— Held, good, the
amount being certain as to £10,000, and it not
being shewn that there were more goods than
would satisfy that amount. McGee v. Smilh, 9
C. P. 89.
A provision that the household furniture of
one partner is not to be sold for the purposes of
the deed until the partnership effects are ex-
hausted, is in law no badge of fraud. lb.
Under 20 Vict. c. 3, a mortgage cannot be
supported which is given in great part for a
debt not existing, but for advances which the
mortgagee has merely promised verbally to make,
and had not made when the mortgage was exe-
cuted or the affidavit for registry made. Kohin-
mn V. Paterson, 18 Q. B. 55.
In an action against the sheriff for goods seized,
the plaintiffs claimed under a mortgage of the
i' l'2th November, 1867, and defendant under an
i, execution of the 18th. The time for payment
'had not arrived, but the mortgage provided that
^ it the mortgagor should sell any of the goods, the
(mortgagee might take possession ; and the plain-
ftiffs, who were in possession at the seizure,
Iclaimed to have taken the goods under this con-
|dition, though the breach of it and the plaintiffs'
|entry therefor was not proved ; — Held, Burns,
|j.,(li88., that the plaintiffs need not prove the
Iconsideration for nis mortgage in the first in-
|jtance, but that it must be presumed until im-
Ipeached. S(ftairetal. v. Fortune, 18Q. B. 547.
^Vhere a bill of sale was made to two jointly,
land filed on an affidavit of bona fides by one,
Ibut the evidence shewed that the consideration
twas made up of two debts, due to the vendees
fseparately :— Held, sufficient. McLeod v. For-
■ toe, 19Q. B. 100.
In an interpleader issue, the court being left
to draw the same inferences as a jury : — Held,
that it waa fraudulent for the assignor to assign
on the uuder.'jtanding that he should be allowed
to keep possession of his household furniture.
Wilmn V. Ken; 17 Q. B. 168.
Affirmed on appeal. — Draper, C. J., saying,
that the reasonable conclusion was that it had
been returned to the assignor for his own use,
and was therefore subject to execution. S, C,
18 Q. B. 470.
Interpleader, to try the rightof plaintiff to jgoods
seized under an execution against one Laner at
defendant's suit. A verdict was given for plain-
tiff for the part of the goods contained in a mort-
gage to one Lawrence. The judgment debtor
mortgaged certain goods to Lawrence, under a
power of sale in which mortgage the goods were
sold to F. , as agent for plaintiff and defendant.
It was held, upon the facts and evidence set out
ill the case, that the verdict was not sustained,
there beinj| reason to infer that the plaintiff had
given up his interest in the goods to Lafler ; and
a new trial was gi-antcd on payment of costs.
Mill/ V. Boutlciji; 14 C. P. 534.
A mortgage was given for $1070. It after-
wards appeared that the amount was made up
in part of a note made and given by the mort-
gagee to the mortgagor at the time of the execu-
tion of the mortgage, and not paid for aome
months afterwards :— Held, that in the absence
of fraud the mortgage was valid. Walker v.
iVJ/M, 18 Chy. 210.
VI. Rights axt> Liabilities of Mortgagor
AND Mortgagee.
1. As to Pomennon.
An action of trespiiss will not lie by a mort-
gagee against a sheriff for seizing goods which
were subject to a mortgage, but of which the
mortgagors had possession. Street v. Hamilton,
5 O. S. 658.
Plaintiff mortgaged to defendant, with a pro-
viso for redemption on payment of £125 on the
20th of October, and an agreement that the
plaintiff" should account to defendant for the
price of any of the goods sold by him in the
course of business before that day, and that on
default, or in case plaintiff' should attempt to sell
or dispose of the goods without defendant's
consent in writing, defendant might enter and
take saitl goods. On the same day defendant
gave the plaintiff a writing authorizing him to
proceed to sell the goods that day mor+gaged to
him, "and to continue selling the b^ 3 until
further notice in wriiiug, subject nevertheless
to the proviso of the said bill of sale in other
re8j)ect8. " The plaintiff, on the 17t'h of October,
mortgaged the same goods to one C. to secure a
debt : — Held, a violation of the agreement be-
tween plaintiff and defendant, and that defen-
dant was entitled to enter and take possession of
the goods. Cloater v. Heculky, 12 Q. B. 364.
A mortgagee who haa not taken actual pos-
session, is not liable in trespass for an injury
occasioned by the goods mortgaged. Caviphell
V. Rekl, 14 Q. B. 305.
M. & Co. having wron^ully placed a quantity
of stone oa the plaintiff's laud, afterw{^wl
■.■r^m
r^fW
'^. !
595
BILLS OF SALE AND CHATTEL MORTGAGES.
59(
!l
«':
I :!; !
mortgaged it with other property to defendant.
Default had been made in patient, but the
defendant had not taken poBseasion, or interfered
in any way with the atone ; when asked to re-
move it, however, he had refused, and forbade
the plaintiff doing so himself : — Held, that as
mortgagee he was not liable to the plaintiff in
trespass for allowing the stone to remain. lb.
The treasurer of an insurance company, for
whom he has taken a mortgage in his own name,
may sue a wrong doer for takmg the goods mort-
gaged, although he has no beneficial interest in
them. BroiUe v. Benjamin, 16 Q. B. 207. See,
also, Baldwin v. Benjamin. lb. 52.
A mortgagee may maintain an action against a
person seizins and selling the property mort-
gaged, the right of possession of ttie goods at the
time of such sale being rightfully in the mortga-
gor, and the reversionary estate in the plaintiff
as mortgagee. McLeod v, Mercer, 6 0, P. 197.
B. mortgaged to plaintiff certain goods, with
a covenant that in case of default in payment,
or of B. 's attempting to dispose of the uoods, the
plaintiff might take possession and sell or retain
them for his own use, but there was no clause
authorizing B. to remain in possession until de-
fault : — Held, that the plaintiff had a sufficient
right to possession to maintain trespass against
the sheriff seizing under a ti. fa. against B., the
jury having found the mortgage to be bond. tide.
Porter v. Flintoff, 6 C. P. 335.
Plaintiff owning a stock of goods and some
furniture and shop fixtures, sold out to one S. ,
taking a mortgage in security, which was duly
filed. S. continued to carry on business, bring-
ing in other goods, till he became involved and
absconded, when the sheriff under an attachment
seized all the property in the store : — Held, the
property being distinguishable, that the sheriff
was liable for trespass. Boy8 v. Smith, 8 C. P. 248.
The sheriff being in possession under the
attachment refused to execute a writ of replevin
at the suit of the plaintiff, two instalments of
whose mortgage were overdue : — Held, that the
sheriff was liable for not executing the writ. S.
C, 9 C. P. 27.
Semble, that under an execution against a
mortgagor, the sheriff may seize goods in the
possession of the mortgagee, so tliat he may
expose them to view, although he can sell only
the equity of redemption. Smith v. Cobourg and
Peterborough R. W. Co., 3 P. R. 113.— 0. L.
Chamb. — Bums.
M. sold goods to P., and took back a mort-
gage on them for the price, together with P. 'a
note. Afterwards, and after the 22 Vict. c. 96,
M., who was then insolvent, assigned the mort-
gage to F., and F.'s agent received possession of
the goods, most of which, if not all, had been
originally purchased by M. from F., and were
stiU unpaid for. The goods having been seized
under an execution against M., an interpleader
issue was directed between F. and the judgment
creditor :— Held, that the assignment of the
mortgage to F. was void under 22 Vict, c. 96 ;
but that, putting it aside, M., as mortgagee,
had no interest which could be sold under
execution, and that F., therefore, having pos-
session, was entitled to hold the goods as against
the execution creditor. Ferrie v. CUghorn, 19
Q. B.341.
The plaintiff mortgaged his goods to A. of
whom the defendant was ailministratrix. TL
goods came into the p.'. "ession of defendant, but
under what circumstances did not appear. The
mortgage contained an agreement that < in (lefau|>
the mortgagee might take possession, and [
statement that a delivery of possession was given
at tlie time of executing the mortgage. There
was no evidence that the mortgage money hmi
been paid. The plaintiff afterwards exeuutiil
three other mortgages of the same goods to other
parties, each containing a similar agreement
upon default, and a similar statement as to de.
livery of possession : — Held, that tlie plaintU
could not recover either in trover or detinue, and
that the defendant might, as against him, aet up
the right of the other mortgagees. liHttan v
Beamish, 10 C. P. 90.
Held, following Porter v. Flintoff, 6 C. P. ^
and Ruttan v. Beamish, 10 0. P. 90, that an action
will not lie, at the suit of the mortgagor of chattelj
against the mortgagee, for seizure of the chattel!
before default in payment, where there is no
proviso in the mortgage for possession l)y the
mortgagor until defnult ; ami that even if an
action would lie, the jury should be told that the
plaintiff could recover only to the extent of hii
interest in the goods and for the damage done t<i
such interest, instead of, as in this case, for their
fuU value, as in the case of a wrongdoer
McAulaij v. Alkn, 20 C. P. 417.
Remarks by Gwyiine, J. , as to the right of the
mortgagor to possession until default, l)y imjjhca
tion, from the nature of the property niortgageil
and other circumstances. Jb.
A. and S. mortgaged to the plaintiff, with a
proviso for redemption if they should within
twelve months pay the plaintiiT a certain debt,
and duly retire and pay a certain protested bill
of exchange endorsed by the plaintiff, &c., but
in default of either of said provisoes, the plaintiff
might enter and take possession and sell. Messrs,
A. and S. did not retire the bill :— Held, that
the plaintiff had a right to enter and take poa-
bossion without waiting for the twelve months
ikcles V. Smalt,' a C. P. 479.
A mortgagee having taken possession, as he
alleged, under his mortgage, the slieriff seizd
the property under an execution against tlie
mortgagor, and the mortgagee then applied fur
an order to have it delivered up to him again ;-
Held, that there was no power to make snok
order. Smith v. C'ohourg and Peterhorowih R. il'.
Co., 3 P. R. 113.— C. L. Chamb. -Bums.
A bailiff seized certain goods under a land-
lord's warrant, for rent in arrear, hut did not
remain in possession, or take any further step
to execute it, except that, as the jury found,
the tenant was constituted the landlord's agent
to take possession of the goods for him under the
warrant. After more than a month, a peraon
having a mortgage on the gooils took ])08se88icD
under it, and removed the goods, for which the
landlord replevied : — Held, that the action could
not be maintained. Jioe v. lioper, 23 C. 1'. I(f.
2. Other Gases.
One D. held a mortgage with a power to sell
upon default, the mortgagor still to he respon-
stole foe any balance. Upon default he sold and
re-purohaseid some of the goods, which heiulxe
wi
m
597
BOND,
69B
against the
applied for
lim again :-
I make such
Drouijh B. ir.
Inms.
iwler a lanl-
l)ut (lid not
urther step
jury foundi
llord's agent
im under the
ith, a penon
Ik jwBsession
[)r which the
action coulil
power to sell
. be resp
i he sold mil
ch he mint-
nuently exchanged for land. Upon an action for
the iMklnnce over the amount realized by the
oricinal sale, the defendant contended that the
plaintiff must be considered a trustee for him in
the re-purchase, and having sold at an advance,
must account for the balance :— Held, that to
obtain relief, application nnist be made to equity.
^„„(g V. Dornan, 10 C. P. 2«J).
The mortgagee of chattels, like a mortgagee of
real estate, is entitled to a foreclosure. Cook v.
flml, 5 Chy. 463.
Where a party held a mortgage on chattel
property, an<> i^^^^ mortgages on real estate, the
conrt recused to decree a sale of the chattels and
foreclosare as to the realty, lb.
On the 9th of January M. & Co. mortgaged
ffooiU to B., which on the 19th the aheriif seized
under a ii- fa. On the 22nd of February, while
the sheriff was in possession, M. & Co. made a
bill of Bale to the plaintiff'. The mortgage to R.
was satisfied after the seizure, and before the
sale by the sheriff, (which took ^)lace by consent
of all parties,) but whether before or after the
execution of the bill of sale to the plaintiff did
not appear : — Held, that the fi. fa. was entitled
to prevail over the plaintiff's claim. Taylor v.
Jarm, 15 Q. B. 21.
H. aiul 1. lii'ing indebted to a bank, arranged
with the plivi. iff, T., the bank's agent at H.,
where the debt arose, that in order to secure the
same a mortgage should be given to him and
the other plaintiff, the bank's general manager
in Canada. T. had no express power to bind
the bank to take this security, ancl his co-plaintiff
wu at the time absent from the country, and
ignorant of the transaction. A mortgage was
tccordingly drawn up, dated 22nd June, 1867,
and purported to be made between H., I., and S.,
of the first part., and the plaintiffs, as trustees for
^e hank, of the second part, reciting that the
parties of the first part were indebted to the
Dank in certain bills of exchange, and witness-
ing that H. in consideration, &c., assigned to the
plaintiffs the household furniture in his residence,
with a proviso that the mortgage was to be void
on payment by parties of the first part of the
bills of exchange. On the court of mrectors in
England being apprised of the transaction both
by T. and his co-plaintiff, in a report made to
them by the latter in condemnation of it, they
at once repudiated it, and on 22nd August fol-
lowing wrote T. distinctly to that effect ; and
when their letter reached him, on the 5th Sep-
tember, the goods were still in H. 's possession,
and nothing had been done under the mortgage
beyond recording it. On the 7th September T.
resigned his position in the bank, and on 16th
September defendant's execution against the
goods of H. and I. was placed in the sheriflf's
hands. In the following October the bank in-
Btruete<l T.'s successor to realize the security : —
Held, that the bank by their repudiation of the
mortgage had let in defendant s execution, and
that their subsequent ratification of T.'s acts and
. adoption of the security could not defeat the
writ Taylor et aU v. Ainslk, 19 C. P. 78.
8, 7 Will. IV. c. 59, an inhabitant living in the
front concession cannot be disposessed by eject-
ment after a prior submission to arbitration by
the husband of a married woman owning land in
the adjacent township of Salttleot, the nuuband
not being the owner of the land, to whom alone
these acts apply. Doc d. Crooks v. Ten Eyck,
Due d. Crook v. Cakkr, 7 Q. B. 581.
!.!> ■ Vl
BINBROOK, (TOWNSHIP OF.)
Under the statutes passed to remedy an erro
I neoas public survey in Binbrook, 1 Will. IV,
c.
BIRTH.
Sec Bastaud.
BOND.
I. Construction and Operation, 699.
II. Bonds fok the Uischaroe or an Office,
602.
1. Adminiitration Bonds — See Execu-
tors and Administrators.
2. Bij Clerk or Bailijf of Division Court
— See Division Courts.
3. Bij Municipal Officers.
(a) Tax Collectors— See Assessment
and Taxes.
(b) Other Municipal Officers — See
Municipal Corporations.
4. By Receiver — See Receiver.
5. By Slieriff—See Sheriff.
6. By Other Persons — See Principal and
Surety.
Proceedings on Bonds.
1. Pleading, 604.
2. Damages and Verdict, 607.
3. Other Cases, 609.
Indemnity Bond,
III.
IV.
V.
VI.
VII.
VIII.
IX.
1. Pleading and Evidence, 610.
2. Other Cases, 611.
3. To Sheriffs— See Sheriff.
Cancellation of Bond, 612.
Miscellaneous Cases, 612.
Amendment in Statement of in Plead-
ings — to. Amendment at Law.
Penalty or Liquidated Damages on —
See Penalty by Contract,
Particular Bonds.
1. Annuity — See Annuity,
2. Appeal — See Appeal — County Court
— Error and Appeal.
3. Arbitration — See Arbitration and
Award.
4 Bail — See Arrest — Bail.
5. Debentures — See Debentures.
6. Ouarantie — See Guarantie and In-
demnity,
7. Security for Costa— See Costs.
8. Interpleader — See Interpleader.
9. Municipal — See Municipal Gorpoba>
tions.
10. Surety— See Principal and Surety.
t
.J
^pp
fi99
BOND.
600
1-
"li
11. Recognimnce—See Rkcoonizancb.
12. BcpU'AHn — Sfv llEVLEViN.
13. For Coni'eyance of Land -See Sale of
Land.
I. CoNSTEUrXION AND OPEKATION.
In (lubt on a bond conditioneil oii dolivory of
good rnvrchnntfOih' grain to deliver iv certain
ijuantity of whiskey, an averment in tlie declar-
ation of a delivery of good (linfillcri/ grain, but
that defendants dul not deliver the whiskey, waa
hold bad on general denuirror. Cowj/tr v. Fdir-
maii, 3 O. S. flOS.
The condition of a bond must be construed as
a whole, and any apparent repugnance may be
reconciled by giving it effect according to the
intent apparent on the whole instrument. J^'icolln
V. MadUl, (Hi. B. 415.
A condition will not be restrained by the re-
cital, unless the intention of the parties as
apparent on the whole instrument rctjuire it.
Canada P. B. d; S. Society v. Lcwia et ul., 8 C.
P. 352.
A bond recited that L. had mortgaged to
plaintiffs certain premises held by him by lease ;
and that doubts had arisen \ihether the lessor
was authorized to grant such lease, and the con-
dition was to indenmify the plaintiff's against any
loss which they might sustain by reason of the
lease turning (Uit invalid, or by reason of the
nonpayment of the mortgage : — Held, that the
recital did not so ijuiilify the condition as to
avoid that part of it providing for payment of
the mortgage. ///.
The omission to say expressly to whom money
payable is to be paid, maybe supplied by intend-
ment. Allen V. Coy, 7 Q. B. 419.
during the continuance nf the mid arje.ney rolini
for the Haul F., at the time and in llif mitiivrr
mentioned in the iimtriictumH of the xniit A',,,,,,/
agreed to hy the .iiiid, M., then," <t'C. .-- lk'1,1, tlmt
the words in italics did not refer only tn siuli
moneys as were to be derived from the prucctil,
of sales effected by M., and tliat upon (li^fai.lt
for other moneys than tliose arising fruni hkIi
sales collected by him the sureties were li:,),!,. t„
V. Flenry v. Moore et al., 34 V. li, '(H), j^
appeal.
Debt (m bond, conditioned that (leftiiilniit
should "pay to the plaintiff €43 l,")s. in building
stone, at 15s, per cord, to be deliveriid r'nr that
sum in the town of Hamilton, at such tinios uuil
in such places as should be re(iuired by iijaintitf;
twenty cords to be delivered by the '2()tli cif Sqi.
tember then next, ami tiie remaindei' in (mk yiw.
I'lea, that from the making of tiie bond until the
expiration of one year, defendant had iilwiiyj
been ready and willing to deliver tlie said stmie
at such times and places as should be ri!(iiiire(l
by jilaintiff, &c., yet that the plaintiff did not,
within one year from the date of the IhiihI, rt-
(luire him to deliver the said stone or any part
thereof : —Held, on demurrer, a good defeiioe.
Stinson V. Braniijan, 10 Q. B. 210.
Declaration on a bond whereby dcfeiulaiit!
coveiuinted to pay R. . or the lioldi-r, at, Ac,
£200, on, &c., and interest thereon senii-ainmally
on the delivery at the (lore Bank ot tlic warrants
therefor to the'bond annexed, and that tliu phiin-
tiffs became the holders, and have alwayri luen
ready and willing to deliver said warrants at,
&c., but £12 for interest is now lUio : -dltW,
b.ad, in not .averring an actual flelivery nf, (jr an
offer to deliver, tlie warrants at the hank.
Oshorne et al. v. Preston and Berlin R. 11', (').,
9 0. P, 241.
So may the conclusi(m of the condition, "then
this obligation shall be void." Day v. Spa/-
ford, 5 O. S. 57.
Wliere defendant agreed to lend the plaintiff
£2,000, to be advanced as it might be reciuired,
and received from plaintiff a conveyance of land
to secure the advances, and gave back a bond
reciting the agreement, and binding himself to
re-convey the lands on repayment of the sum
advanced on a certain day, anil defendant before
that day made further advances to .£10,000, and
received timber, &c., on account to ,£7,000: —
Held, that the bond was a continuing security,
and that defendant was not obliged to re-convey
on payment of the £2,000 first advanced. Wells
V. Jiitcuie, 6 0. 8. 13.
One M. and his sureties gave a bond to P. , the
plaintiff, reciting that P. had "appointed the
above bounden M. his agent to sell certain
articles and things, which the said F. is to manu-
facture and send to the said M. for that purpose,
at and for the prices the sfvid P. may put upon
such articles and things in his instructions to
said M. , and has also appointed the said M. his
agent to collect and receive all moneys arising
out of such sales to the use of said P. " The
condition then was, "that if the above boi'rden
M. shall in all things well and faithfully carry
out the said agency on his part, and shall well
and truly make correct anci faithful returns to
the said F. of all moneys arising out of the sale
of any of the articles or things aforesaid, and of
ail omer momya the said M. may at any time
The bonds produced acknowledgcil defendants
to be "indebted to the holder hereof in the
sum of .£ , and do hereby proiiiisc to jwy the
same to such holder at the aijeney of the liuiil: iij
Montreal, at Ottawa, on, lir., on the .virrnulirtif
thU bond, with intercut, at the rate of, &c., pay-
able, &c., upon presentation of the smral imt-
rants or coupons hereunto annexed, ul llie aiimii
of the Bank of Montreal at the eitij nf (iWm
aforesaid. " The declaration statcit that ikfen-
dants, by their bond, scaled, &c., beeanie bounii
to the holder thereof in the sum of, &c., within
terest, &c. , to be paid to such holder thereof, on,
&c. , and the plaintiff' became holder thereof, k,
yet saitl sum with interest had not been jiaiil,
It was admitted at the trial that the bonds were
not presented at the place where they were niiile
payable ; and it was proved that if they hail ten
so presented, defendants had not funds there to ;
meet them :— Held, that there was no variance j
between the bonds declared on and those pro-
duced ; in the former being stated as payable to
holders generally, while the latter wore payabl«
only on surrender and at a particular places-
Held, also, that it was not necessury forplaintil j
as a condition precedent to his recovery, to aver j
and prove presentment at the particular plw, j
and a tender of the surrender of the bonds, nri
readiness to surrender them. Felluwes v, Olim \
Gas Co., 19 0. P. 174.
The plaintiffs sued for interest on two boihli I
made by defendants on the 27th of Jamiay,
1866, for the payment to the plaintiffs or onw
601
BOND.
603
of the principal money named, on the I at of |
Novembor, 18W, at tlio agoiu^y of tlio Hank i
of U. ^- '" Hamilton, toguthur witli inturoMt |
thereou. Both counts alloged that altliougli do- !
fendiuit* paid tlio principal on the "Jiltli ot Jan- i
uary 1*>1. witli interest i\]t to the Ist of No- I
vemtor, iS-lft, yet they had not paid any inter-
cat after tiiat ilay. In tho socimd count it was
averred that the bond was in defendants' po»- I
session aiul cancullud by tliem, and tiie plaintitt's !
thca'loro could not present it on the dajy ap- i
pdliitwl for payment ; and that onthatday<lefen-
(lants hml no money at tho agency, and gave no
instruction to the manager there to pay. Dcfcn-
ilants pleaded, to the tirst count, tliat they were
jiiwaya ready to pay tho princii)al and interest
uccording to the bond, and did pay tlie same
when urebcnted, but that tho bond was not pre-
geuteil lit the said agency on the day appointed
for uayment, nor at any other time ; and tliat
ilcfentlants never owed nor covenanted to pay
the plaiiitifTs interest after that day, when they
were ready to have paid both principal and iiiter-
»st. And to the seoond count, that tiiey had
money at the said agency to pay tho bond, but
the plaintitl'a liad no one there, nor was anyone
there on that .lay or at any time after to receive
the same; and that tlioy never owed, &c., (as in
thehiat plea) :— Held, on demurrer, both pleas
1 ttml; and that the omission to aver present-
ment in the tirst count was cured by the plea.
The eighth plea was leave ami license ; and was
i jjeldhad, as no answer to an action of covenant.
i Hdhnnld d al. v. The Great ]Vetlent It. W. Co. ,
12iy. B. 223.
At the trial it appeared that the bond declared
■ on in tlio first count had never been in the plain-
1 tiffs' custody, iiaving been retaine<l at their re(piest
livilcfendantd' solicitor, and it was proved that
Iwhen the houcls fell due, and up to July, ISoT,
litewlanta had funds at the agency out of which
ittey would have been paid if presented. Held,
Jh.it the pleas were proved : that defendants
prerenot liable to pay interest after the bonds
piatnred ; and that the judge properly directed
i verdict hi their favour. 1 li.
The defendant gave plaintiff a bond condi-
|ioned not to alter his will, by which, as recited
1 the bond, he had devised to the plaintiff cer-
Itin land. He afterwards sold and conveyed the
1(1 to one 0. :— -Held, that the condition was
■oken. ifeVormiek V. McRne, 11 (J|. B. 187.
i Declaration on a bond conditioned to convey
» the plaintiffs, within three months, a certain
ieamlwat, and for (juiet possession of the same
lom the making of tho bond, assigning as
aches, 1. Not conveying within three months ;
All eviction by one O. S. G. under a mortgage
jtrived from defendants. Pleas, to the tirst
[each, that said steamboat was mortgaged to
\ H. C. at the execution of the bond, for the
amount as plaintiffs had agreed to pay
Iffendants, and that defendants had handed fiim
notes given by plaintiffs for the price ; and
! said J. H. C. held the mortgage only as
jcurity for due payment thereof, and plaintiffs
Vreupon discharged defendants from procuring
p conveyance. Plea, to second breach, after
fcting a similar agreement, alleged a transfer of
mortgage from J. H. C. to O. S. G., and that
I plaintiffs made default in their agreement
hoB-payment of one of the notes, whereupon
O. H. (\. took poHHossion, claiming an equitable
interest by virtue of said agreement with defen-
dant and his assignees. Koth pleas held bad on
demurrer, the plaintiffs engaging to apply their
payments towarils an encumbrance not annnint-
ing to a waiver of their right to a conveyance
from the vendors. Corlit/ it at. v. Cotton et al.,
7 V. V. 20!t.
A bond to a municinal coqioration, "We, O.
It., itc, are jointly and severally held and firmly
bound, &c. , unto, iStc, in tho several penal sums
of money hereinafter mentioned, that is to say,
the said (1. H. in C.'l.OOO, the said J. I*, in £500,
the said J. H. W. in toOO, (and all tho rest in
trMK) each,) for which several payments, &c., we
and each of us bind ourselves, and each and every
one of our heirs, executors, and administrators,
&c. : -Hehl, a several, not a joint, or joint and
several, bonil. Cor/Mration oj Esuex v. Bullock et
III., 11 C. I'. 3U3.
A bond is, ox vi termini, taken to be a deed ;
therefore, a declaration that a defendant became
bound, cS:c., whereby the said bond became for-
feiteil, suliicicntly discloses an obligation by
specialty; though the mere expression "bound
would not. I'mriiirid/ /ii^iiraiice Co. v. iValton,
UiC. V. &1. See, also, Leit/i v. Freelaml, 24 Q.
B. V.i-2.
U. Bonds for tiik Di.scharoe ok an Office.
Sci. fa. on a bond to the Queen for perform-
ance of duty by a pork inspector. The assign-
ment of breaches shewed an agreement to refer
pork to tho inspector for his inspection, and then
alleged that ho wrongfully branded pork of
inferior quality with the words "prime mesa
pork," &c., contrary to the statute and to his
duty. Demurrer, for not alleging that the acta
complained of were breaches of his duty or were
done by him knowingly, willingly, or designedly,
or th.at he did not in respect of such matters use
the best of his skill, judgment and ability : — ■
1 id, that the breaches were sufficiently as-
signed, lieijiiia v. Moivat, 3 C. P. 228.
Debt on bond against two defendants, con-
ditioned that A. , as a bank agent, should account
as often as called upon. Pleas : that before ac-
tion brought A. ceased to be agent, and that
while he was agent he kept all the clauses, Ac. ,
in the condition ; 2. that A. paid the plaintiffs
the amount of the penalty in the bond : — Held,
bad on general demurrer, tho first plea not
answering tho condition, and the second not
being pleaded as accord and satisfaction, nor any
release shewn. Bunk of U. (J. v. BoiiUon et al,,
4 O. S. 158.
In debt on bond for the performance of the
duty of deputy sheriff for six months, and for
such period as the sheriff and deputy should
agree upon and endorse upon the bond, in
answer to a plea of performance the plaintiff
replied that tho period had been extended, not
alleging during the six months : — Held, bad.
Hamilton v. Anderson, 2 Q. B. 452.
Debt on bond given by defendant as one of
five joint and several obligors, for the dis-
charge, by one A., of his duties as secretary and
treasurer. Pleas, 2. Not damnified; 3. If plain-
tiffs damnified, damnified by their own default ;
5. That the affairs of the plaintiffs were managed
reOB
BOND.
■li ^
by certain dirouton : that until tho 3lit of
Jantmrv, IHfiO, A. fultillutl tliu cimilitioii : tlint
from that tiniu till A. ccaHtMl to Im Hiu'i'i'tiiry
and tri'aHuror, plaintill'M niiitiagutl thu iiHikim of
tho said noc'ioty contrary to itH ruiuM, Ac, where
by hilt liability wan greatly iiicruaMcd ; by rcuHoii
whereof hu became diHcharged ; 1. Thu atl'airH
were managed, Sic. : that Maid directorM, without
defundant'H conMent, ordered that one of tiie
obliuora Bhoubl be released, which order became
binding <in said Hocicty, whereby auch obligor waM
discharged :-- Held, on Hpecial dein\irrer, Mccond
and third pleas clearly bad. Fifth ulea bad,
bocauRO it waH not hIicwi hat the oimorvancc
of tho condition wiih (|iialitie(l or atfcctcd by Homu
matter existing and in the knowleduo of both
parties when bond given. Seventh jilea bad, as
showing no release properly authonzeil in law.
Farmers and Mechiiiiicn' liuU(lin\j iSuclfty v. Litin/-
staff, 9Q. B. 18.3.
Action on asimilar bond to that in the laxt ciwe.
— Plea of iHjrfonnance- - Hcplication, assigning
breaches for money received and not paid over,
and for fraudulently inducing idaintitrs to grant
a certain loan : — Hold, good on special demurrer.
Farmem' <i^ Mechan'tca' Bnildimj Society v. Whit-
temore, 9 Q. B. 297.
Debt on Iwnd given by C. and U., conditioned
for the due performance by one L). of tho oHIce
of secretary and treasurer of tho Brantford
building socfety, 7th plea : That the ottice is
an annual one ; that the said I), was appointed
for one year ; that tho defendants became sure-
ties for the tenn of one year and no longer ; and
that during such term, D. faithfully performed
tho dutie/i. Replication : That the tfofendants
did not become sureties for tho period in the
plea mentioned, or for any other specified time.
9th plea : that U. did not, l)efore his appoint-
ment, become bound in a bond for the duo per-
formance of his office, in pursuance of tho stat-
ute, 9 Vict. c. 90. 10th plea : That the said
bond is not a security taken in pursuance of the
statute, by a bond entered into by tho said I),
with two sufficient sureties : — Held, on demur-
rer, both pleas bad for uncertainty. 11th plea.
That the niles of the society clid not provide
that the treasurer or other principal officer
should, once in every year, prepare a general
statement of tho funds and effects, according to
tho statute. Replication : That the rules of the
society diil provide that the statement referred
to in the plea, should be maile at least once in
every year according to tho form of the statute :
— Held, on demurrer, replication good. Wilken
et al. V. dement et ni, 9 Q. B. .339.
Action on bond by collector of taxes for the
performance of his duties — Form of declaration.
JxM v. Petri^, 6 0. P. 48.
A bond by a collector to the "treasurer of a
town and his successors in office:" — Held, valid,
without naming any individual therein. JuM v.
Read, 6 C. P. 362.
In an action on a bond given to T. , the plain-
tiff, describing him as treasurer of the muni-
cipabty of F., for the performance by defendant
P. of his duties as collector :— Held, affirming
Judd V. Read, 6 C. P. 362, that the action might
be maintained by the plaintiff as treasurer,
though the statute directs that the bond shall
be taken to the municipality. Todd v. Perry,
20 Q. B. 649.
A plea that tho l)ond suoil on wan uivcnf,,
thu dun performance of the duties (if |il,iii,t,|f '
secretarv ami trt'attury by A., and timt lj,.|,J
breach A. wasaopointed plaintlU's priHi,|,.„tj,j|
director: Held, bad, for not hIicwIh^' tlmt i
otfices were incompatible, Ity alleginj. timt xi
plaintitl's were incorporated under tluC s I
(". c. 49, if that act would make tlitm iri,„i,
patible or othurwiso. Admitting tlnin tn l^.u,
compatible,— yiiieru, would the iicciiitiiiicu i
one vacate the other. Trrnl umt Friiulinrit lUi
Co. v. Marohall, 10 ('. P. 329.
A municipal council elected B. uh tlmlr ti>v I
surer on tho 2r>th of .Jamiary, and by n i,, .|j,
passed on the 2«th ai>pointed liiin, innl <\\n(u\
i tlmt he shoidd enter on his dniii'M jih hihh, ^\ \
' should have executed tho necessary ImiikI i", 1
the same dav they passed a resoliitidii Hcutptir" I
his bond, which was dated on the '.'(ith ; /(„|?|
that no objection woubl lie to sucli u iKind ,1
having l)een executed before bis H|ipiiiiitinfji|
Held, also, that the treasurer wan ili;arly liali|||
for defalcations in tho wild land tux, litiiiijt|),|
proper pei-Non to receive it. ('in-iiiiriifum^iitA
Coiintj/ of Fm:i' V. Stroiiy, 21 Q. B. I4i), |
Tho condition was, that a treaHiiivr, hlx cxti
cutors or administrators, at the expimti(m(iflii|l
office, ui>on recpiest to him ortheni iimdc, slionJ
give a just account of all moneys rtroivi.,|, aBjl
should pay and deliver over all baliiiicusiliic:-!
Hebl, that the words, "upon rcipiutit to him dl
them made," applie<l Iwth to thu giving an acf
count and to the paying over, t'rnrmmtl cA
/mnitioH of the County of liruce. v. Crumar ••"ul
B. 321. '"^'
See Buell \. Whitney, 11 C. P. 240, ji. 608
III. Pro(;eei)IN().s on Bonds.
1. Plfdilin;/.
In debt on Iwnd, a pica that the plaintiffs Lvll
not matlo a conveyance according to ngrctnieiit, I
was held bad on special dennirrer, fdrudtshuwiiul
what the agreement was, although it was refer f
red to an(l its contents might be eollecteJ from
the condition of tho bond as set out on m.
McUilvray v. McDonnell, Tay. 139.
Debt on Iwnd conditioned that " tiie defea- 1
dant, his heirs and assigns, should permit the I
plaintiff to cut down and carry away all tiie lire- j
wood (r(.:->» certain lands, without let, suit, iii«-[
derinu'c, 4-. Plea, that defendant alwayi per-
mitted, &'.. Replication, that defendant cmI
veyc f t'lo land in fee to a stranger, whomtijj
nut po: mit plaintiff to cut the wood, 4c. i-HeHl
bad, on demurrer, as shewing no breach, tbl
bond being a license under seal binding od 41
fondant and his vendee, and not revocable bf J
parol, and the plaintiff having shewn no a
obstruction, towke v. Fothenjill, 4 0. S. 18i j
Non est factum and a set-off may bepleaMl
together, to debt on bond. Atkins \:Ckri,r
0. S. 33.
Where the plaintiff declared in debt on h
as "Governor-GeneralofOanadaandj
Court of Probate in U. C," on a bond iudehjj
the defendants to "Sir John Colbome,itll
time of the execution thereof beiiig lieute
governor of U. C, and judge of the CM <
BOND.
C0«
l'n)b»t« theroin, mul to liiii succcuHor in oHicd,"
I uMigiit'il lui a hroftcli, tliii iH(u-i)ixvimiiit nf
tlie iR'iiiilty to till! Huitl "Sir.Inhii Collioriic or
,iiv otliir iiirHdii or iicrmniH wlmti'vcr," wluTuliy
u, (M'tioii Imil acurucd to the pliiiiitiH iw "(Jovur
iiortlcmnU, lunl jii'lg" "f thu Court of I'rolMitc,
1 num'BHiir of Sir .John Colhoriu'," the duolii-
..(iiiiiwan lii'lil ln*<l on spui'iiil tli'iimrror, for not
""" . _ ...1 ii i..:..i:ii' I n...
«l)ewini{ wlitTti or wlicn tlm plaintiH' l)oc«niu tiic
■uca'MDr of f^ir •'"'"' ♦'•'"'""'"i ft'i'l f""" ""t
euativiiig payment of tho penalty to plaintilV,
nil fiiravurring that the action had acoructl to
j,^, plftiiititf i« 'MJovurnor-Ooncral and judj{u of
he ( (iiirt of I'rolmto. " Uoyot v. McKiiizie it ol. ,
'leuativiiig paynieiit of the penalty to plaintilj
Mill
thi
the
6 0.S. 580.
An obligor wlio is called 'ly a wrong naino in
a lumii, but uxecutes it by hin right name, must
be «ueil by bin name in tho honil. Ki'trliiim ft
at. V. Bnuhj, M. T. 'A Vict.
Where the condition rofHiircs something to ho
nerformed ftftcr the inakinj^ of tho bond, a plea
o( Mrforniunco will he sutticient if it appear that
the thing must necessarily have been performed
n;Vr Mf iiuikUui of the Imnil, though these words
j li not used. T(io condition was to pay over
moneys. I'l^a. payment of all moneys collected,
without shcwnig how much collected :- Hold,
lutlicicnt. Dtniaon, one, .(•(•., v. Ihmm'lhj, 2 Q.
Ib.395.
Comlition, to account once in six months.
i pies, that (Icfeuilant did account, not alleging
owe in every six mcmths : - Held, bad, on special
1 demurrer. Small v. neaxley, 3 Q. B. 40.
To an action on a bond, defendant cannot set
I jp a separate cotemporanoous agreement not
inJer se^, varying tho condition frimi that
thich the bond itself imports. Criimer v.
i/u,/j;«oH, 3 Q. B. 174.
' A., upon being appointed clork of the market
llo the board of police of London, ent<,'red into a
iloDii to pay ft certain sum in compensation for
le market tolls which the board allowed liim
receive. Being sued on his bond for non-
jjinent, he pleatled " that lie discovered after
le execution of tlie ImuuI that the plaintili's had
legal right to erect a market, or make by-
m respecting fees to be taken thereat ;" and
icn averred that the plaintiffs had no such au-
lority, ami that on this account, the bond was
iid;-Held, Imd, in not shewing that no market
erected or existed, and in not averring that
were not in fact received by him. Thr liwtrd
Police of London v. Talbot, 3 Q. B. 311.
Debt on a bond, conditioned to make certain
lyments at tlw times Htated in the condition.
ch, that €125, parcel of the mim demanded,
not paid, &c. :— Held, bad, in not ne|{ativ-
the payment of the money mentioned in the
idition. Beckett v. iUll, 4 Q. B. 489.
P'here the plaintiff has bound himself to ad-
iDce money to A. upon certain conditions, and
^feudant has in the same bond guaranteed
t repayment, the plaintiff in suing on the bond
iouht set out with certainty the conditions on
Vch A. wag to obtain the money. The aver-
nt that A. had not kept all the conditions on
t part, without stating them, ia bad. A plea
k th-it the plaintiff had not kept all the con-
dom on his part, when it nownere appeared
lit they were, ia also bad. Where the plain-
Iwu either to " secure or advance" the money,
a plea stating that ho hA<l not " nACurod and a<l<
viinci'd," is bad. W'riijht v. liennon, rt i}. H. '240,
'I'o dtdit by an executor on r.n annuity lK>nd
mailo by defendant to the testator, payable
during the lifi^tiino of testator, defendant jdoa-
ded : '_>. That before the commencement of this
Huit, to wit, on tile tirst of Novemlier, he jiaid
to tile textator all ikiid every the Hunm of money
which Itefore then were due, &c. The plaintiff
reiiliiMl that defendant lid not pay testator
allHUiiiNof money at any time before the com-
niencenient of tiiis suit due, &c., by virtue of,
&c. hefeiidant plea<led : H. That before thu
comnu'iicenient of this suit hu owed plaintiff
n|Min lliii said writing obligatory £.3ft, and that
the testator at the time of his decease was, and
plaintiff, since the death of testator, still is in-
debted to deftuidant in €100, for use and occupa-
tion, &e., wiiieh he otfercd to set ofF. Plaintiff
replied tiiat lie wan not nor is indebted modo ot
forniA. Issue was joined on these pleas. No
breach was alleged in tiie declaration nor assigned
in the replication, nor suggested under the stat-
ute 8 &!> Will. III., 0. 11, s. 8; nor was there
an award of venire to assess damages. The jury
found for the plaintiff, and asseflsca the damages
generally : - Jf"ld, that the issues ten<lered ny
the replications were sulticient, and that tho
allegatiiniH in the ]>leadings were sutticient to
warrant the assessment. Smith v, Muirhecul,
VMl B. 0, in appeal.
Action on a bond. I'lea, that it was obtained
by H, and others in c(dlusion with him, by
fraud, &c. Beplication, that it was not obtained
by fraud of H. and otiiers, &c. : — Hehl, good,
though not in the disjunctive. Turner v. Tlavi,
() (). B. '2.55. See, also, Miller v. Hamilton, I
(i. B. 4'28.
The oblijjor of a bond which by the plaintiff's
own shewing is clearly fraudulent, need not
plead fraud to jirevent a recovery. Smith v.
Dittrich, 8 (J. B. 589.
Defendant executed in favour of plaintiff a
bond in the penal sum of £700, conditioned to pay
i350, with interest, by instalments. I'laintiff
obtained a verdict on the bond for the penalty,
Is. damages for detention, and .£21 uamageB,
assessed on breaches assigned, after which de-
fendant paid the damages and costs. Instead of
entering judgment for the penalty as a security
for future breaches, the plaintiff' commenced a
second .action for another instalment and interest.
Defendant without intimating that he intended
to plead in abatement, as a favour asked plaintiff
for a further time to plead, which was granted.
Sixteen days after declaration defendant pleaded
the pendency of the fonner action, and prayed
jud^nent whether plaintiff ought a second time
to implead him for the same cause of action,
attaching to the plea an affidavit of its trutlu
The plea was set aside with costs, and plaintiff
allowed to sign judgment by default unless de-
fendant should pay costs and plead within four
days. Varlltk v. Hostel, 7 L. J. 99.— C. L.
(Jliamb. — Robinson.
Ill an action on a bond, where the plea is th'.t
the bond was conditioned to perform an award,
and no award made, the plaintiff must either
deny the condition as alleged, or reply specially
setting out an award and assigning a breach.
He wul not be permitted to tSte issue on the
plea under the 108th sec. C. S. U. C. c. 22, and
■
607
BOND.
li i
Buoh a replication will be struck out under sec.
119, as embarrassing. Cowan v. White, 9 L. J.
131. — C. L. Chamb. — Drapor.
A bond is, ex vi termini, taken to be a deed.
Therefore, a declaration that a defendant became
hound, &c., whereby the said bond became for-
feited, HutKciently discloses an obligation by
speciality, though the mere expression "bound '
would ao';. Prooincii i InjuraHce, Co. v. Walton,
16 (! Jf. 1)2. See, also, Leith v. Frtelanil, 24 Q.
R 132.
Debt on bond conditioned to deliver to plain-
tiff certain wood. Breacli, non-delivery. Defen-
dant pleaded, as to part of the breacli, payment
of $25 into court, and as to the remainder, per-
formance : — Held, on demurrer, a bad plea.
Thompson v. Kaye, 13 C. P. 251, distinguished.
Loive V. Morice, 19 C. P. 123.
See II., p. 602.
2, Damages and Verdict.
A plaintiff on a bond of indemnity cannot re-
cover interest in the nature of damages beyond
the amount of the penalty. McMahon v. Jn(/cr-
soll, 6 0. S. 301.
In an action for the breach of a condition,
assigned in the words used in the bond, ' ' in not
havmg duly rendered all accounts which ought
to have been rendered, " the plaintiff may recover
whatever moneys defendant ought to have re-
ceived, though in fact he received none. Small
V. Stanton, 3 Q. B. 148.
In debt on bond, where breaches have not been
suggested or assigned in the replication, and the
bond comes clearly under the 8 & 9 Will. III. , it
is irregular to take a verdict for the penalty, and
the verdict may be set aside. Brock Dktrict
Council v. Bowen, 7 Q. B. 471.
Semble, that the breaches may be suggested
even after verdict, and then the plaintiff may go
down before a jury and assess his damages. ]b.
The question being raised on the facts and
pleadings in this case stated in 7 C. P. 209, ante
p. 602, whether the plaintiffs were entitled to
the damages as assessed by the jury, £6,675, the
defendants contending that the measure of dam-
ages should have been the amount necessary to
redeem the steauiboat, the court held that the
damages were properly assessed. Corby et al.
V. Cotton et al., 7 0. P. 392.
Where non est factum is pleaded, and bi eaches
assigned in the declaration : Semble, no special
entry of ven. fac. to assess damages is necessary,
but if required the court will allow it to be
made afterwards. Corrigal et al. v. Boulton, 16
Q. B. 529.
Where in debt on bond for the payment of
money in two instalments oidy one was due
when process issued, but the plaintiff assigned
breaches for both, the second being due before
declaration : — Held, that he could assess his
damages on both breaches ; anl Semble, in such
a case the declaration is the commencement of
the action. Leach v. Stevenson, 3 0. S. 310.
Defendants gave a bond to plaintiff for £45,
conditioned to pay him £45 a year so long as he
■hould coutinue the nuoister of a certain cou-
gregation. They paid him without suit for the
first two years. For the next four years plaij.
tiff sued them, declaring upon the boml a«a
covenant, and obtained judgments, which wen
satisfied without any question raised. He tta
sued for the seventh year, and the question of 4
fendants' liability was left to the co\irt withuit
pleadings : — Held, that covenant clearly wouH
not lie ; but that to a declaration on the IjonJ
the former payments, not having been paiJo,
received in satisfaction of the penalty, couli
form no defence ; and that the defendants there, i
fore were entitled only to have satisfaction en'
tered on payment of the penalty and coati
N'wen V. Jnrdint el a(., 23 Q. B. 470.
The plaintiff" had recovered £10 as (lainasei I
for breach of the condition, the penalty leiiw I
£500. Judgment had been entered fer the (klj I
and damages, and duly registerci! Ananplica. I
tion, shewing payment of the damages and cost^ I
to have satisfaction entered, was refused vritl I
costs, as the plaintiff was entitled to the judf
ment as a security for further lireaches. HdU i
Hillet al., 1 P. R. 268.— P. C— Draper.
A. & B,, having become sureties for C, tlJ
receiver in a suit in Ohancory, and who was til
account yearly, were sued for C.'s default (ni if
specially endorsed writ, and judgment sig
for £490 16s. lOd : — Held, upon a niotiim oil
attidavit, as to the facts, that £92 lis. 9d. was alii
that was ilue ; and that the claim was not sucl |
that a judgment upon a specially endorsed wrij
could be signed. Buell v. Whitney, 1 1 (J. P. 2-W f
On a bond for the conveyance of land, tiit|
verdict was takon for the plaintiff for 31000, .inJ
20 cents for the detention, no evidence of damaffll
having been /iiveu. Defendant moved to restrain!
the executior-, to Is. damages, the Ijond Ijeinil
within the 8 & 9 Will. HI. c. 11 :-KelJ, tliati
such application, before the entry of judgment,!
was premature. Greer et ux. v. /o/)«.<w(, 32Q.f
B. 77.
Defendant gave a Ijond to plaintiff to abide j
by the award of arbitrators. The arbitrators |
awarded §400 to be paid in three instalments, i
the two last to be secured by defendant upon I
real estate, and payable at a future day. De- [
fendant neither paid the first instalment, nor]
secured the second and third in the manner I
directed : — Held, that plaintiff was entitled to j
assess his damages for the whole three iiistil- j
ments, although the last two were not due. W
V. Bond, 16 0. P. 327.
Action on a bond conditioned to pay monfy
by instalments, to recover the first instaliiieril j
Pleas, non est factum and payment. After Mel
joined, defendant paid the .sum tlien iliie;aiiiij
to another suit for the second instaliiieiii, It I
pleaded in abatement the former action .-HeUj
that he was entitled to succeoil ; for, 1. Tl(J
plaintiff might have proceeded with the pR-l
vious action and obtained judgment, asthepifT
ment after action could not cure tl'.e breaiiij
and, 2. The cause of action, which is the penaBjij
was the same in both suits. KanduH tt d fj
Burton et al, 23 Q. B. 268.
Sci. fa. on a bond conditioned to pay-'2iS
in five equal annual instalments, with iutetBtJ
on the whole amour^t from time to time reiiuiij
ing due, on the 1st June in each year. ITk*!
claratiou reoited that the lirst instalment wl
609
BOND.
610
t suit for tli«
' years plain-
e boiul 881
, which wett
!tl. He tha
uustiou of (it-
;ourt withi;ii
clearly wquU
on the \mA
been paidoi
eiialty, could
jndauts then- \
itisfaction en-
;y and coste.
70.
10 as damage)
peiiidty bfcinj I
ed fer thedtltl
An applica- [
lagcs ami cost!, I
is refused will I
ed to the juilj'l
:achea. 7/1'! v,|
Draper.
ties for C, tlfl
and who was til
'.'s default unil
.idginout signal
)u a niotiim oil
I Us. 9d. \('asall
m was iM)t suck I
y endorscilra)
«)/, iic.p.iwi
nee of land, tkl
iff for ^1000, anJ
idence of (liimigtl
noved to restraiil
the bond Iwtl
11:— Held, thail
ry of judgment,!
JohiMn, SiQ.r
:)lainti£f to aWel
'I'lie arhitratonl
Jiree instalments, i
defendant upon
Ifutureday. De-I
instalment, nor I
in the manner I
was entitletl to ]
iole three instil- '
[re not due. W
[d to pay money j
I first instalment, I
iieiit. AlterMtj
L then due;»l|
Id instabuent, kej
k action •.-HeH, I
fed ; f»r, 1- H
jd with the picj
Inent, iistlieffr
lure tl'.c lire»;|
IchistliepeMllyj
J to pay?i'8i^|
Its, with luteal
3 to time KWitm
111 year. Tl"«l
1 inBtalnient wl
interest, due on the Ist June, 1862, had been
i)ai(l: tliat on 30th November, 18f)4, damages
vv-ere assessed for the second and third instal-
ments, and interest on the unpaid principal,
if2tl6, up to 1st June, 1864, which were paid
un 15th April, 1865: that there was afterwards
a further breach by non-payment of the fourth
instabuent of principal on the 1st June, 1865,
with interest on the said §2,226, from Ist June,
18(!4, to loth April, 1865, and interest from said
lath' April, on the principal remaining unpaid on
that day, to 1st June, 18()5. The plaintiffs
claimed execution for the damages to be assess'jd
on this further breach : -Held, that interest on
the-*2,22'>. could not be recovered, for the jilain-
titfs on their sci. fa. for \,he second and third
instahnents should have assessed all damages
for non-payment of such instalments up to the
date of that sci. fa., .'10th November, 1864,
which would include interest ; and their execu-
tion for such damages would bear interest also.
Held, also, that the objection might bo taken
by demurrer to so much of the breach as claimed
such interest, for the award of execution })eing
claimed for three separate sums, each claim
might 1)c treated as the assignment of a separate
breach. KamhiH ft al. v. liurtou ef al., 25 Q. B. 9.
Action on bond payable by instalments. Judg-
ment was entered for the penalty. Proceedings
were had from time to time by sci. fa. : — Held,
that defendants were bound to pay the expense
of levying the sum doe, but that the wh(de
amount the plaintiffs were entitled to recover
waii limited to the penalty. UnmUill ct al. v.
&!((/« el al., 4 P. E. 9.— P. C— Morrison.
The plaintiff may not charge interest on the
penalty, or amounts remaining due thereon J I)..
See .VrZ)o)io/(/ v. Oreaf ^'''p.stem R. W. Co., 21
JQ, B. 223, p. 601 ; Smith v. Miihiicml, 13 Q. B.
|9, p. m.
3. Other Canes.
i To debt on bond for .£400, setting out the con-
Mition and assigning breaches, defendant craved
loyerand demurred, and the plaintiff having suc-
Bceeded on the denmrrer, entered judgment for
Jthe penalty and issued execution. Defendant
fthen moved to set aside the proceedings, but the
Ijlaintiff had leave to amend, by substituting an
Bntcdoeutory for the final judgment, and enter-
"ugan award of venire to assess damages, and
iKiuire of further breaches, although three yearp
Iliad elapsed from the entry of judgment. Doih]-
\«*s.PomU,'2 0. S. 87.
\Miere a bond is pleaded with a profert, the
admission of its execution, under a judge's sum-
nous, does not dispense with its production at
Irial. LmIv v. Uuhi, 5 (). S. 482.
A. and B. entered as co-sureties into separate
ends t<» the crown for C. ; C. became a dt-
pralter' The crown proceeded by sci. fa. on each
lend, „ud ohtaiued a separate judgment against
i»ch surety. A. satisfied the judgment aga-'-ist
limself, E. moved to be allowed, on paying the
Bdgmeni against himself in full, to stand in the
ice of the crown, and to Live tlie benefit of
te crown process against hih co-surety for a
poiety of the jud|fment :— Held, that the Court
Nd not thus relieve B. : that they .r>ight have
Tlowed him to proceed in the name o^ the
39
crown to enforce the judgment which had been
obtained on a sci. fa. against A., but this they
could not now do, as it appeared the crown had
already enforced that judgment. Reyina v.
Laml, 3 Q. B. 277.
Debt on a bond for the payment by S. of ten
notes, assigning breaches as tf) the last six.
Plea, that S. did not pay the first two notes,
whereupon the bond became forfeited, and after-
wards ,S. liecame bankrupt, and afterwards de-
fendant became bankrupt, and the debt accrued
before his bankruptcy: — Held, — Ric'. .rds, J.,
diss.,— tliat the bond, being forfeited before de-
fendant's bankruptcy, the penalty became a debt,
which the piaintifF might have applied to have
retained in the hands of defendant s assignee till
the contingency happened, and then have proved ;
and that the plea was good. Perrin v. Hamilton,
5 C. P. 57.
,ii
IV. Indemnity Bonds.
I. Plvadinij and Evidence.
To debt on an indemnity bond defendant
pleaded non damniticatus, and the plaintiff
having replied, shewing liow siie was damnified,
defendant rejoined that the injury arose through
plaintiff's own fraudulent act. The rejoinder
was held a departure, and bad on general de-
murrer. Hamilton v. Davis et al, 1 Q. B. 490.
The plea of non damniticatus to a dec'aration
on a bond containing specific conditions, not to
indemnify generally, is bad. Kingsmill v. Oar-
diner et ((/., 1 Q. B. 223; McDonald y. May tt
al., 5Q. B. 68.
Defendant may plead that the payment by the
obligee was without necessity, and made in his
own wrong. Hamilton v. Davis et al., 1 Q. B. 176.
AVhere in del)t on an indemnity bond defen-
dant pleaded that if the plaintiff was damnified
she was damnified of her own wrong, on which
the plaintiff took issue, and did not assign any
breach : — Held, that the issue was on the plain-
tiff. Hamilton v. Davis et al., 2 Q. B. 137.
Debt on a bond, conditioned to save the plain-
tiff harmless frni.i ;dl damages or suits regard-
ing a certrvin sum advanced by one A. to the
plaintiff, ^'no- i the agency of B., and which
sum ■Aat! i'lsii" if,; ni)<; to have been paid tc the
nhiintlii by oao U., and to be now due and owing
i to PJfla, that the plaintiff, if damnified, was
i dp ■'. 1 . jd of his own wrong. Replication, setting
j out t? » I reach the recovery of judgment ,".nd
'execvtion against plaintiff by C, for the sw '
sum. fttjomder, that the judgment was re-
cover! d by the fraud and covin of the plaintiff,
upon which issue was joined. It was shewn
that the recovery by C. had been on admissions
made by plaintiff after the execvtion of th«:
bond : — Held, not sufficient to support the plea ;
and the plaintifT having iccovered p. veiuic*, tht.
court refused to interfere. I'n-turd v. Bouito: , 2
Q. B. 487.
The plaintiff havi.ig in t^-e last caie ast.isrpcd
two breaches, setting! out * jai.gnierit 'or ihe
sum of money in t..e oojvlitior ner.Uoued, and
not specifying any pruucnlar am f c • which
judgn^ent had been remove! etl :- ideld, b .iBcient,
on niot.''>n in arrest of .'u:'.-},' .(?ut. 'ttvell y,
; Buulfnn, 3 Q. B. ll>. ' ^
'1i
611
BOND.
61}
A party suspected of stealing a horse was brought
up on a warrant befor*) a magistrate, who inves-
tigated and dismissed the charge. The suspected
individual pretended no right to the horse, and
the magistrate, after dismissing the charge, re-
stored the horae to its supposed owner (the pro-
secutor), but before doing so took a bond of
indemnity : — Held, that such bond was not
necessarily void, as contrary to the general policy
of the law. Ballard v. Pope, 3 Q. B. 317.
Where A. is liable to pay B. a certain sum on
a particular day, and C. covenants with A. to
pay it, A. on default may recover the whole sum
from G. , although he has paid nothing. The plain-
tiff conveyed land to B. , subject to a mortgage
to one S. , which contained a covenant to release
in parcels. The plaintifif had previously sold to
N. part of the land mortgaged, and B. agreed to
release this part by a, day nameri, and pay off
the mortgage as it should fall due. Defendant
gave his bond to plaintiff conditioned that B.
should do this. To an action on the bond, aver-
ring B.'s default in both respects, defendant
pleaded, on equitable grounds, that the bond
was given only to indemnify the plaintiff from
damage by B. 's non-performance : that the plain-
tiff had not paid or oeen called upon to pay any-
thing, and had suffered no damage : that the
defendant was ready to indemnify him according
to the true meaning of the bond ; and that he
ought not in equity to enforce it until he had
been damnifiea : — Held, on demurrer, no de-
fence : — Held, also, that such a bond was clearly
within the 8 & 9 Will. III. c. 11. Leith v. Free-
land, 24 Q. B. 133.
2. Other Cases.
A plaintiff on a bond of indemnity cannot re-
cover interest as damages beyond the penalty.
McMahon v. IngersoU, 6 O. S. 301
A party giving a bond to hold harmless in any
actions that may be brought, and to pay all costs
and charges thereby accruing, is bound to indem-
nify, as well against the legal result of any such
actions, as for the trouble and expense occasioned
by them to the party to be indemnified. Hamil-
ton V. Davis etal., 1 Q. B. 176.
Construction of an indemnity bond, as to
whether it made the obligor liable for old debts,
or only for new advances from the date of the
bond. WrlglU v. Benson, 6 Q. B. 131.
Held, that the value of goods sold under a
judgment recovered upon a mortgage made by
the plaintiffs, against which they held a liond of
indemnity from defendants, did not form the
measure of damages, but they were held entitle<l
to recover the amount of such judgment. Bay-
mond et al, v. Cooper et aL, 8 C. P. 388.
Held, also, that the action accrued on the bond
upon defendants' default, according to the cove-
nant in the mortgage, and it was not necessary
to shew a payment. Ih. See, also, Carlisle v.
Orde., 7 C. P. 456.
Upon a bond by the retiring partner on a dis-
solution, conditioned to save harmless and keep
indemnified the continuing member against all
actions, charges, damages, &c., which might
be commenced against nim, or which he might
have to pay or become subject or liable to, by
reason of the debts of the late firm :— Held,
that the obligee was entitled to recover the ftj]
amount of judgments obtained against him after
wards for partnership debts, though he had pajj
nothing on them : — Held, also, that the fecti
stated m the case with regard to one of th<i judj.
ments formed no ground for diminishing tlit
amount to be recovered r.gainst defendants oj
account of it. Smith v. Teer et a?., 21 Q. B. 41i
Defendant was a creditor of one T. H., andat
defendant's request one L., on receiving the
bond of indemnity sued on in this acti<jii, execg- j
ted a power of attorney to defendant to coU«t
certain rents due by T. H. to L. Defendant thei
requested L. to sign a distress warrant against T.
H., which L. did, and defendant placed it in plain!
tiF's hands with instructions to seize certain m |
perty which defendant had caused to be placed
on the demised premises, as well as some other I
property elsewhere. The plaintiff seized, ami
shortly afterwards obtained a bond of indemnitj
from L. The property was claimed by J. H., 1 1
son of T. H. , but was sold by defendant's instrnc- 1
tions, who became the purchaser of a large i
tion. J. H. brought an action against L. aiultiit I
plaintiff, and recovered against them. Plaiiiti} I
paid the damages and costs, and commenced an I
action against L. on his bond. This L. settled by
conveying to plaintiff a lot of land, and assignins
to plaintiff by deed defendant's bond, and the
plaintiff then sued defendiint on this hond :-
Held, that the defendant was liable, foralthniigh |
the distress warrant was executed by L., yet it i
was done at defendimt's request, •rfin assumpi
the entire direction of the seizare ai.-l sjje.
Wallace v. Gilchrist, 24 C. ^. 40.
Held, also, that L. w^s damnified, in having to
settle the plaintiff's a jtion against him by con-
veying the land and at signing defendant's bond;
and tnat he was not )ound to defend the suit, |
for the plaintiff having acted under express in-
structions from def'jn lant, L. 's agent, and having
been guilty of no wi'ful neglect or default, L,
had no defence. 1 b.
Held, also, that as tht plaintiff's act in seizing
and selling was done unc'erdefeirdant's direction,
and in good faith, and w is not apjiarently illegal
in itself, the rule of to contriimtion among
wrong-doers did not apply. /'.
Held, also, that J. H. had a right of action
against plaintiff and L. , and it mattered not
wiiether T. H. or J. H. was injured, so longa
the plaintiff acted under the warrant, and was
in consequence made responsible. Ih,
Held, also, that the plaintiff was entitleil to
recover the costs of defence incurred by him
and L. Jh.
V. CANCELI.ATION OF BoND.
A bond may be given up to be cancelled by
the president and directors of a l)aiiking corpo-
ration, without the appointnieiit of an attorney.
The President of the bank of U. ('. v. W'idmir/r
O. S. 222.
VI. MlaCELLANEOUH CaHES,
Bonds to obtain supersedeas under 2 Will. I>.
5, and 5 Will. IV. c. 3. Amount of pen«'.y.
Heather v. Wallace, 4 0. S. 131.
613
Trover ma
of a bond for
obligor havin
heDoiid mig
and sufficient
damage may 1
the amount of
Banlc of U. C.
The jurisdic
bonds, exists
hare beau de
Bnden, 17 Ch
A. gave a '
and a few da^
neither was gi
C. recovered ji
the oblitror had
bonJ -rieid,
(late, liad no eq
to enforce the
aside a conveya
value than the
cepted in disc
Mountcashel, 19
Iv Evi
Trovei lor pan
theprodtctionof
\ the trial, the j'.v'
I that the plaintiff
tction because th
I indecent attack
[nonsuit. Onapp
I could not rely on
J inder not guilty,
j ipecially ; taat ft
iDuterials compoa
Idently of what i
{would have a righ
ithat the judge 8h<
1(0 the nature of
Ithat it prohibits
iaot illegal, they s
Ijalue as a literal
illegal, they shouh
|p»per, *c., irresj
IA new trial was ti
fSkemn, 14 C. P. •<
Agreement to ed:
IPleadiug-Written
l«f editor— Collater
Please-Pleading. 1
BOUGHT .
See S
BC
'• TRtii or Q
Kjbctmkn,
11. M;
'*'*lli.ljANEO
613
BOUNDARY.
614
'III'
ffht of action
Iniattereil not
3I, 80 loiigu
tint, ami t«
lib.
la entitled to
Irreil by him
SD.
Lancelleil by
Inking curpo-
Ian attorney.
Trover may bo maintained against the obligor
of a bond for securing the fidehty of a clerk, the
obligor having torn off the seal (and this although
he Dond might be conaidered as still subsisting
and sufficient to sustain the action of debt), and
damage may be recovered against the obligor to
the amount of the penalty. The Premdent of the
Bank of U. C. v. Widmer, 2 O. S. 222.
The jurisdiction of equity in the case of lost
bonds, exists also in the case of bonds which
have been destroyed. County of Frontenac v.
Breden, 17 Chy. 645.
A. gave a voluntary bond to B. for £5,000,
and a few days afterwards a like bond to C ;
neither was given for any fraudulent purpose.
C. recovered judgment on the second bond ; and
the oblipior had not property enough to pay both
bonvi -rield, that B., whose bond was prior in
date, liad no equity to restrain proceedings by 0.
to enforce the judgment recovered ; nor to set
aside a conveyance made by A. of land of less
vidne than the judgment, and which C. had ac-
cepted in discharge thereof. Newenham v.
Mountcashel, 19 Chy. 530.
BOOKS.
1\' Evidence — See Evidence.
Trovei loi pamphlets. Plea, not guilty. On
the production of one of the pamphlets sued for at
! the trial, the jivlge in the County Court directed
that the plaintiff Tas not entitled to maintain the
I action because the phamphlet was a scoffing and
■indecent attack on Christianity, and ordered a
nonsuit. On appe:il : — Held, that the defendant
icouldnotrelyon tie illegality of the publication
Imder not guilty, but should have pleaded it
lipecially ; taat the plaintiff held property in the
Imateriails coinposing the pamphlets, indepen-
Idently of what was printed on them, and he
iwould have a right to be indemnified therefore :
Ithat the judge should have directed the jury as
lio the nature of workp '•'L-; 'aw protects and
Ithat it prohibits ; that 1'' i-b < ^^ -^ohlets were
Inot illegal, they should giv liai. ,^et' for their
lvalue as a literary pro iUct-on , 1; thejf were
Uegal, they should gi'. ■>mR ^es to the value of
jpaper, Ac, irresper lii ve <»' v^u words upon it.
A new trial was the.fviiore »,. ' • d. Boucher v.
ikmn, 14 C. P. 419.
Agreement to edit a magazin<3'- Construction —
Pleading— Written agreement allowing absence
jf editor— Collateral stipulatiri. as to time of re-
le-Pleading. Elmore v. Hind, 24 Q. B. 136.
BOUGHT AND SOLD NOTES.
See SALr; of Ooods.
BOUxS >ABY
I. Trial or Quran >N6i of 'Boundary in
EjKCTMKNr. Cl-t-
II. MisLKLbANEovH Cases, 615.
III. Boundary Line Commissioners — See
Boundary Line Commissioners.
IV. Description of Land — See Deed.
V. Possession under Mistake tn Boun-
dary — See, Limitation OF Actions and
Suits.
VI. Of School SECTioNS-iSee Public Schools.
VII. Surveys — See Survey.
VIII. By Water — See Water and Water-
courses.
I. Trial of Questions of Boundary in
Ejf.(;tment.
In ejectment to try disputed boundaries, the
Slaintiff has to shew, beyond any reasonable
oubt, that he is entitled to some land at least
of which defendant is in possession. Where
the point is a doubtful one ne must shew a sur-
vey carefully made, and the proper steps taken
which the law requires for ascertaining tlie exact
position of any posts along the line which can
still be discovered by inspection, or established
by evidence, in order that the court and jury
may see whether the two lots in question are, by
the survey which the plaintifif is seeking to estab-
lish, made to occupy their proper position on the
concession line. Doe d. Stromj v. Jonex, 7 Q. B,
385 ; Babaun v. Lauson, 27 Q. B. 399.
In ejectment, where the plaintiff proves his
title to possession of any part of the premises
sued for, he must obtain a verdict, and the court
will not go into the question of boundary, in
order to determine the precise quantity of land
he is entitled to recover. Doe d. Sheldon v.
Ramsay et al. , 7 Q. B. 446,
In ejectment the plaintiff claimed the land in
his writ as part of lot six, and defendant defen-
ded for it as part of five. No notices of title
were attached to the record : — Held, that the
plaintiff was not bound to prove his title to lot
six. Cascaden v. Conway, 17 Q. B. 598.
The court will discourage (except when bound
by well established rule), the practice of trying
questions of boundary by actions of ejectment,
the legitimate object of which is to try titles.
Petern v. Nixon, 6 C. P. 451.
Held, that a question of boundary may be tried
in an action of ejectment. Irwin v, Scger et al.,
21 Q. B. 373 ; S. C, 22 Q. B. 22. See also
Boulen V. Tamjhney, 21 Q. B. 391.
The court of C. P. in the same term came to
a different decision. Lund v. Savage, Lund v.
NesbUt, 12 C. P. 143.
The plaintiff described the land claimed as
Eart of lot 10, "commencing at a post planted
y Y., provincial land surveyor, at the north-
west angle of the said lot, then S. 16° E. 35
chains, more or less, to the centre of the conces-
sion ; then N. 70° I]. 2 chain? 35 links, to a cer-
tain blazed line ; thence along the said line N,
13° W. 35 chains, more or less, to the rear of the
concession ; then S. 75° W. 2 chains 6 links, to
the place of beginning. " Defendant claimed it
all as part of lot 9 : — Held, that the plaintiff's
land being clearly described in the wnt so as to
be discoverable on the ground, the question of
boundary should have l^en tried, to ascertain
m
\n
!||il&i
!ni(
i;ili
,■ i
■i
■!f
U
'■'i
:'■]■
Ki. ■ f. ■!' ^L'l-.^i
|( ri
-tM
BOUNDARY.
615
whe'iiher it formed part of lot 9 or 10. Sexton v.
Padon, 21 Q. B. 389. Followed in Boides v.
Tuugkney, 21 Q. B. 391.
Held, in appeal, affirming the judgment of the
court below, that in ejectment the (juestiou of
boundary may be tried, to ascertain whether the
land in question forms part of the lot claimed
by the plaintiff. — Draper, C. J. , and Morrison,
J., diss. Sexton v. Paxton, 2 E. & A. 219 ; fol-
lowed in Hunter v. Bapt'w, 23 Q. B. 43, and in
Mazier v. Keeyan, 13 C. P. 547.
II. Miscellaneous Cases.
In moving to set aside service of process, be-
cause served in the wrong district, the affidavit
on which the motion is made must state that the
service was not on the confines, or that there
was no dispute about boundaries. Cryder v.
Thompson, M. T. 3 Vict.
PlaintiflF and defendant own adjoining lots of
land, with a fence between them supposed to he
on the true division line ; a corrf-^ line is how-
ever run, and defendant is foun. ^i encroach
some acres on the plaintiff's land , <" ^ i-iiiitiF
takes possession ot the disputed t^I. wA
under a protest from defendant, anu c i ates
it. When the crop is fit to cut, the di (■ ; ut
enters and takes it away : — Held, that the plain-
tiff had such a possession as would enable him
to maintain trespass. GaUwjhvr v. Brown, 3 Q.
B. 360.
Held, that while two persons are in diflference
about the boundary, and shew by their conduct
that they are uncertain about the tnie line, but
agree with each other to have it ascertained, and I
to hold accordingly, either party may make a I
conveyance to a third person, which will enable
the alienee to hold according to the true boun-
dary, though at the time of the conveyance tliere
might be some of his land in the possession of
the other, in consequence of the line between
them having been mistaken. Macaulay, J., du-
bitante. Doe Beckett v. Nightingale, 5 Q. B. 518
A road company incorporated to make a road
from the town of Sandwich to the town of
Windsor : — Held, not authorized to go beyond
the entrance of Windsor from Sandwich. Held,
also, that as no limits had been assigned to the
t-own of Windsor when the defendants were
incorporated, the court would look to what
the proprietor of land on which a part of what
was commonly called Windsor stood, had desig-
nated Windsor on a plan which he hatl filed in
the registry office, and referred to in giving
deeds ; and to the popular understanding as to
what constituted Windsor. Doiujall v. Sand-
wich and Wimlsor Jiucul Co. , 12 Q. B. 59.
Trespass q. c. f . , describing the locus in <|uo
by metes and bounds, and as part of ' ' what has
heretofore been known as lot 15, first concession,
Delaware. " The defendant gave no evidence of
title. The plaintiff claimed by virtue of his
possession, and it api)eared that more than
twenty years ago, relying on an erroneous sur-.
vey, he had fenceil in a part of the defendant's
lot 14 in the broken front concession. This
fence, if continued, would have included the
part in question, but it had never been extended
to any part of lot 14, in the first concession : —
tLM, toat the plaintiff could not be considered
616
as having any such possession of the lotus in (mo
as would entitle him to recover. Wi-I,/ v, Scnii
12 Q. B. 537. See O'JIcarn v. Duiwlhi nv
P. 513. • ^
In tlie case of a disputed bouinlary Hue ]^.
tween two fanns, contiieting evideiicu was I'ivtn
as to how far an old line, which was adniittnl
to have been part of the original survt v of the
township, extended. Defendant provtil acts nf
ownership by himself and predecessors dver the
locus in quo in putting up a brush ffute mnre
than twenty years before action bmuglit, ami
cutting timber since, but the jury tdui'id in
favour of the plaintiflF. The questiou as to
possession havinjj been fairly left to the jury
and the weight ot evidence as to tlio true liduii!
dary, appearing to be in the plaintitt's favour,
the court refus(id to interfere. Cnhildm v
Chamber.-*, « C. P. 282.
Trespass (i. c. f. The division lino lictwoin
two lota being in dispute, the plaintiff jirovcil
that the line he c(mteii(led for had been run liya
surveyor and fenced for alnnit forty rods liftv
years ago, and that it had been the recnguiseil
boundary l)ei.-..een the parties. Lately defeml.
ant employed a surveyor who ran a different
line (probably right, although not done in strict
accordance with the statute), and defendant
moved his tence in accordance witli it. 'Hit
jury having found for defendant, the plaintiff
moved for a new trial on affidavits that the
fence moved had been standing more thsii
twenty years. The court granted a new trial
on payment of costs, the dhief .Tustice statiii:;,
that "compacts and arrangements of old stand-
ing, the maintenance of which prevents litiga- I
tion, should be favourably viewed. " WMhimux
Bruel, 7 C. P. 134.
Defendants claimed under a lease of 50 acres,
descril)ed as coninienciiig in the rear of 1,'k)
acres of the lot, and running back A'A cilain:^ ''\
links, executed in 1824 by ,S., who in ISi'iicnu-
vcyed the remaining 1,50 acres to one I., ikscri-
bing it as commencing in front on lakeKrieat
the south-cast angle of the lot, and rnniiiiis
back 131 chains 25 links. 1. liad a survey niailc
in 1828, and a post was then planted to mark
his north boundary. It appeared tliat dcfiii-
dants never questioned this limit, liut in 18,>,
wlien having their own 50 acres surveyed, tiicy
directed the surveyor to assume it as tlitir
southern line. They afterwards moved tlitir
north fence further back, which gave rise to tliis
action : — Held, that the defendants, wlin ap-
peared to have their full 50 acres aecordinj; tn
the old limits, must shew their rigiit to cliaiiie
the boundaries so long ac(iuie8ccd in, and that it
was unnecessary for the plaintiff in the tiret
instance to prove his claim by actual survey.
Iter V. Nolan et al., 21 Q. B. 309.
Trespass, to try the boundary line lictwcen
plaintiff and defendant ; the former elainitd title
to part of N. W. part of lot No. 20, in the sixth
concession of South Dumfries, by nietea an'l
bounds ; the defendant claimed the east liali'
The descriptions in the deeds diil not cdiiHiot
A line was originally run by a Mr. Ball for the
prior holders of the property, one of them at tte
time claiming title through the original jiattntee,
under an agreement for purchase, hut wasin't
acquiesced in by the plaintiff. In 184!), oneJL,
a P. L S., at plaintiff's request, ran a line sup-
617
BOUNDARY LINE COMMISSIONERS.
618
lie bct»'«n
.■laimeiUitk
in the sixth
metes anil
east hall'
IKlt Cdlltlicl
Ball for tlie
them at the
jal patent*,
hut was III*
j4!l, one )li
ijoseil to be acquiesced in by clefenilaiit, but
upon the erection of a fence thereon by the
plaintiff the defendant objected, and it was re-
moved In 1863 a Mr. P. ran a line, claimed by
the plaintiff as the true line, and which caused
this lUsputc ; and two surveyors being present
at the time on defendant's behalf, concurred in
opinion that this line was correct. The jury
having found for the plaintiff :— Held, that the
line originally run, and now contended for by
defendant, wiis not binding upon the parties, and
that the evidence shewed the line run \)y P. and
acuttiesced in by the defendant, to be the cor-
rect one ; and therefore the verdict was right.
McXawjhl V. TurnbuU, 13 C. P. 426.
The limits of the city of London were defined
by the proclamation setting it apart as all the
lands comprised within the old and new surveys
(if the town of London, together with the lands
adjoining thereto, lying between the said surveys
and the river Thames, producing the northern
liflundary line of the new survey until it intersects
■ the north branch, and the eastern boundary line
tttttil it intersects the east branch of the river .•
—Held, that the city limits extended to the
middle of the river. In re McDohoikjIi, 30 Q.
B. 288.
Where two properties or niuniciptalitics are
divided by a river or highway, the limit (>f each
is primil facie the centre of the river or road. lit.
J. L. conveyed to G. L. a piece of land extend-
ing 103 ft. G in. along the soutli side of Welling-
ton street easterly, from its intersection with
Elgin street, covenanting that should the line of
Wellington street be shifted to the north he
TCuld grant to (J. L. any land thus left inter-
vening oetween that streei; so clianged and the
land now grivnteil. The south side of Wellington
street was shifted about 23 ft. to the north, and
as Elgin street intersected it at an acute angle,
the intersection was about 11 ft. further west
than before. (1. L. having obtained a convey-
ance in accordance M-ith the covenant : — Held,
that he was entitled to have his eastern boundary
> produced on its original course, at right angles
to Wellington street, though he would thus have
more than 103 ft, 6 in. on the street ; for the
I intention was to give all the land in front of that
[ tirst conveyed to him, and between it and the
Htreet as altered. Laiuj v. Matliewman, 32 Q.
' B. 121).
In trespass q. c. f. it appeared that defendant
j: conveyed to the plaintiff" 19 acres of lot 2 in the
lath concession of Barton, described by metes
ami bounds, oonuuencing at the north-east angle
oi the lot. This starting point upon the ground
I was undisputed, and it Wivs admitted that the
I description given enclosed the land claimed by
the plaintiff ;— Hehl, that defendant was estop-
I ped by his deed, and could not set up any ques-
iion as to boundary between lots one and two.
|CVo.M(/iin(i/e v. (/«</c, 32 Q. B. 196.
In trespass (j. c. f. it appeared that about
|4welve years since one W., defendant's tenant,
having moved the fence between plaintiff and
defenilant, an agreement in writing was entered
into between W. and the plaintiff, that they
"fould employ B., a surveyor, to establish the
Iprieinal line between lots one and two, and would
e bound by it ; and defendant by a memoran-
dum, signed by him at the foot of this agree-
ment, agreed to abide by it. The land in dis-
pute was then in W. 's iwssession, and it was
alleged that B. had not completed his survey : —
Held, no evidence to support defendant's plea of
leave and license. Ih.
BOUNDARY LINE COMMISSIONERS. '
[T/it: Bounilan/ Line Connnimonerx' AcIh, 1
Vkt. c. 10, 3 Vict. c. 11, expired in 184J.]
The boundary line commissioners have no au-
thority in cases of estates less than freehold.
Vanderlip v. Millii, 6 O. S. 62.
Nor to establish the side lines between lots
which are at neither end of the concession as the
governing side lines of the several lots in the con-
cession. Monjan v. Simpson, 6 0. S. 132.
In determining the side lines between lots
they are bound by the rule laid dov.".i by 59 Geo.
III. c. 14. Belomi v. Striker, 6 0. S. 137 ; CaUl-
well V. Wrii/ht, E. T. 5 Vict.
Ill trespass q. c. f. defendant justiiied his entry
imder an award of the commissioners, awarding
the possession to him, and averred that he entered
into the Land under the award as his freehold : —
Held, bad on general demurrer, as the commis-
sioners had no power to award the possession,
and the plea did not amount to liberum tenemen-
tum. Villaire v. Cecille, 6 O. S. 406.
Thuy cannot establish new concession lines
varying from those which have existed for up-
wards of fifty years. In re Detlor, T. T. 3 & 4 Vict.
They have authority to cause surveys to be
made when the boundaries of lots, &c., are in
dispute. Gamier v. Hillet al., 6 O. S. 101.
Senible, that the eastern boundary line of lot
25 in the tirst concession of the township of
Kingston, is a line drawn from the north-west to
the south-east angle of said lot. Award of the
boundary line commissioners set aside. Murney
V. Mark-land et al., 6 O. S. 220.
A rule for a mandamus will be granted against
the boundary line commissioners, if they do not
return the proceedings had before them within
fourteen days after notice of appeal. Delon<j v.
Striker, E. T. 3 Vict.
The commissioners must shew in their award
the course of the line run to mark the boundary
and the positiim of the point of departure, or
their award will be defective and void. Caldwell
V. Wriiiht, E. T. 5 Vict.
Where there is a disjjuted boundary between
two districts, and one of the districts appoints
an agent for settling the boundary under 1 Vict,
c. 19, the court will not, on the refusal of the
justices of the Quarter Sessions of the other dis-
trict to appoint an agent on their behalf, direct
a mandamus to them to do so, as the act leaves
it discretionary with them to proceed or not.
/« re Boundnri/ Line between EaMern and John-
stoum DiMrictii, M. T. 6 Vict.
The award of the commissioners on a subject
within their jurisdiction in which lx)th parties
interested were heard, and not appealed against :
—Held, conclusive between the parties. Jfavena
V. Donaldum, 1 Q. B. 371.
The minute of the boundary line cotnmission-
ers produced in this case, held not a judgment
,il
-\'-' > i-
?*'•
619
BROKER.
within the 3 Vict. c. 11, and that the defendant/
should therefore have been permitted to give
evidence contradicting it. The second section is
directory only, and the omission to iile will not
affect the validity of the judgment. Retj'ma v.
Rose, 12 Q. B. 637.
The judgment of the commiusioners under 1
Vict. c. 19 : — Held, binding when not appealed
against as required by the statute ; and that it
was not overruled by 12 Vict. c. 35, s. 38. Raik
V. Cronson, 9 C. P. 9. See, also, Keeley v. Har-
rigan, 3 C, P. 173.
On ejectment to recover part of a lot in the
first concession of Thurlow, it appeared on the
Quebec map that the road in front of the first
concession, was marked out from one end of the
township to the other, but no original monument
could be found further east than the south-east
angle of lot 13. The defendant, in 1835, had re-
ceived instructions for the survey of an Indian
reserve of lots 28. 29, 30 & 31, on the broken front
on the bay of Quinte, and to run the lines thereof
butting their rear on the 1st concession, and
this was the first survey on the ground. In
1841, the boundary line commissioners made an
award as to the broken front, and ordered stone
boundaries to be entered where the defendant
had planted posts "on the rear of the Indian
reserves, and in front of lots 28, 29, 30, and 31,
in the 1st concession. " It was held, on the evi-
dence, that the plaintiff could draw a side
line between lots 27 and 28, c.ninujncing at the
post planted in front of the broken front in pre-
ference to one deduced from the mouuLients on
the road in front of the Hrst co-i session. ■ ''"ia/i
V. Campbell, 7 C. P. 176.
The point in dispute being the boundaries of
the N. E. quarter of lot 21, it was sworn that
there were no original posts between 20 and 21,
nor at lot 19, and the plaintiff then offered to
prove that a requisition had been made to the
boundary line commissioners to settle the line
between 19 and 20, by the parties interested ; and
that they did so, and planted monuments ; but
as no award had been filed, and no record of the
proceedings could be found, he relied upon oral
testimony only, and upon acts and w ork on the
giround : — Held, inadmissible : for 1. There was
nothing to shew that the documents required
had ever been drawn up, so as to let in the secon-
dary evidence ; 2. The owner of 21, not being
necessarily interested, would not be bound by
the award, unless a party to the proceedings, of
which no proof was offered ; and 3. Posts be-
tween 19 and 20, if planted by the commission-
ers, would not be equivalent to original posts, by
which the site of the lost monument, shewing
the boundary of 21, could be determined. The
Omission to file the award, if the evidence had
been in other respects sufficient, would not have
been fatal. Barrv. Canada Life Assurance Co.,
26 Q. R 614.
BRACERY.
See Chahfkrty and Maintenance.
BREACH OF PROMISE OF MARRIAGE.
See HvBBANO and Wive.
BREWER.
A brewer, licensed as such by the government
of Canatla under 31 Vict. o. 8 D., re(iuire8 no
license under the Tavern and Shop IJcuiue Act
of Ontario, 32 Vict. c. 32, s. 1, as amended bv
33 Vict. c. 28, for selling ale manufactured at
his brewery. Whether the statute, if applicalile
to licensed brewers, would have been within the
ptower of the provincial legislature, was a ques-
tion raised but not decided. Renina v Srnti u
Q. B. 20. ""
BRIBERY.
I. At Parliamentaky Elbjtions— See p^,;,
liament.
II. At Municipal Election8 — See Musici.
fAL Corporations.
BRIDGE.
See Railways and Railway Companie8— Wav,
The Desjardins Canal Company having been
indicted for not keeping in repair the bridge over
their canal where it crosses the highway, built for
them by the Great Western Railway Company ;
— Held, that they, and not the railway company
were bound to keep such bridge in repair :— Held
also, that evidence of the state of the bridge
a few days before the trial was admissible, as
confirming the other witnesses who swore to
its state at the time laid in the indictment, and
as shewing such state by inference, lieyina v,
Desjardins Canal Co., 27 Q. B. 374.
The suspension bridge across the Niagara river
at Clifton, with the stone towers, &c. , supporting
it, is land and real property within the Assess-
ment Act, 29 & 30 Vict. 52, s. 3. Niagara FaU«
Suspension Bridge Co. v. Gardner, 29 Q. B. 194
As to the rights and powers of the respective
cor rations, Canadian and American, owning
thii/ bridge. See Attorney-General v. Niaijara
Falls International Bridge Co., 29 Chy. 34, 491,
BRITISH NORTH AMERICA ACT, 1867.
See Constitutional Law.
BROCKVILLE POLICE ACT.
The court will not grant a mandamus to try
an election of corporate officers chosen under the
BrockviUe Police Act, but will leave the parties
contesting the validity of such election to their
remedy by information in the nature of a quo
warranto. The Election of Members of the Bond
of Police of the town of BrocMlk, 3 0. S. 173.
BROKER.
I. Bought and Sold Notes— i?e<! Sukoj
Goods.
II. CoBmissioN Merchants— (See Commissiox
MSBCHAMTS.
Site Railway!
'hM
621
BUILDINGS.
622
Held, that when to the ordinary business of a
broker,' some special employment and under-
taking' is superadded by express contract, his
liability results from such coutract, and not
simply from his character of broker. Deady v.
OmlniioiKjh, 5 C. P. 163.
Action against defendant as broker and com-
mission agent, for negligence in delivering goods
to the purchaser without the price being paid,
and for not using due care that the purchaser
was solvent. Evidence — Verdict for plaintiflF —
New trial granted on payment of costs. lb.
A banker and exchange and money broker,
anil a dealer in foreign and uncurrent money,
and buying and selling stocks :— Held, a trader,
within the Insolvent Act of 1869. Smart v.
Duncan, Q. B. M. T. 1874. Not yet reported.
See also, Bagwell v. Hamilton, 10 L. J. 305.
BUBBLE ACTS.
The Bubble Acts, 6 Gteo. I. c. 18, and 14 Geo.
II c. 37, are not in force in this province.
Bank of Montreal y. Bethune, 4 0. S. 163, 193.
BUFFALO BRANTFORD AND GODERICH
RAILWAY COMPANY.
Ste Railways and Railway Comfanieh.
BUFFALO AND LAKE HURON RAILWAY
COMPANY.
See Railways and Railway Companies.
BUILDINGS,
I. Court Houses— /See Court House."?.
II. Fixtures— .See Fixtures.
III. Covenant to Repair and Rebuild— (See
Landlord and Tenant.
IV. Levyino Rates to Erect-
Corporations.
-See Municipal
By 4 Will IV. c. 23, the corporation of To-
[ronto is empowered, among other things, to
[tegulate and prevent the incumbrance of the
stmts ; and a city ordinance, made in pursuance
1 of that power, allowing persons building houses
to occupy a certain portion of the streets with
j their building materials, is good ; but any per-
I son who is building, leaving their materials in
I the streets, under the ordinance, must provide
J lights in the night, or he will be responsible for
I any accident that may eccur from nis neglect.
iHemyv. French, E. T. 3 Vict.
In a action under 10 & 11 Vict c. 6, by an
[administratrix for negligently causing the death
I of her husband, the declaration stated vhat the
idefendant was possessed of a close, and one T.
lA was possessed of another close adjoining the
idefeudant'g ; that upon defendant's dose a wall
was standing, which before and at the times
when, &c. , was to the knowledge of defendant
in a dilapidated and dangerous state, and lean-
ing towards the close of 1. A., by reason where-
of it became the duty of the defendant to take
reasonable precautions to prevent the wall from
falling ; but that well knowing the premises, he
wrongfully permitted the wall to remain in that
state, ancl that afterwards, by reason of such
neglect, and while, &c., the said wall fell upon
the close of T. A. . and in falling killed deceased,
who was then lawfully in the said close of T. A.
Defendant pleaded not guilty : — Held, that
the declaration disclosed a legal liability in de-
fendant, and that the evidence (which is set out
in the report) warranted a verdict for the plain-
tiff. Semble, that under this issue defendant was
at liberty to shew that the accident was caused
either wholly or in part by the negligence by the
deceased, or of others for whom the defendant
was not responsible, and that a reasonable time
for repairing the wall had not elapsed before the
occurrence ; and that, supposing the state of the
wall as alleged in the declaration to be admit-
ted in the pleadings, yet the defendant might,
in evidence, shew its actual condition, as bearing
upon the question of negligence. Kinney v. Mor-
leif, 2 C. P. 226. See also, MUcMl v. Harper, 4
C. P. 147 ; Gooeh v. Snarr, 34 Q. B. 616.
The plaintiff contracted to sell a lot of land
to A. , who agreed to build a house upon it. A.
put up the nouse, but the plaintiff refused to
open certain streets, as he had agreed to do, and
the lot was in consequence inaccessible. A.
then assigned to defendant, who removed the
house to another lot, which he also had agreed
to purchase from the plaintiff ; and after such
removal the plaintiff executed a deed to defen-
dant of this latter lot, with all the buildings
thereon : — Held, that notwithstanding the deed
the plaintiff might maintain trover for the house
so removed ; but the jury having given only
nominal damages, the court under the circum-
stances refused to interfere. Cleaver v. Culloden,
15 Q. B. 582.
The plaintiff, a mortgagee, filed his bill for
foreclosure and for an injunction to restrain
the vendee of the mortgagor from removing a
building erected on the property. The court
thought that though the building had been actu-
ally removed, it was a proper case for a mandatory
injunction ; but it appearing that the building
had been removed piece-meal, and that there
might be difficulty in restoring it, an enquiry
was directed to ascertain the value thereof, as
sufficient for tho justice of the case. Meyers v.
Smith, 15 Chy. 616.
There is no duty at common law upon owners
or occupiers of houses to remove snow from the
roof, and no liability for accidents caused by its
falling, Lazarus v. The Corporation of the City
of Toronto, 19 Q. B. 9.
Defendants, a city corporation, owning land in
the city, leased it to one H. upon certain condi-
tions as to building, and he erected a house u^n
it under the directions of their architect. The
lower story was occupied by one S, as lessee of
H. , and the upper story and garret by defendant.
There was no evidence of any faulty or negligent
construction of the house or roof, nor of any by-
law passed by defendants to regulate the removal
of snow. The plaintiff havmg been injond
i!
■i t1
ii i
! >,f> W l«
623
BUILDING SOCIETIES.
CJi
M
'I.
while paBsing alone the street by snow falling
from the roof: — Held, that defencfanta were not
liable. II).
By the municipal act the corporation of Toron-
to was authorizeu to pass by-laws, among other
things, to prevent the erection of wooden buihl-
ings within such parts of the city as tlie corpora-
tion might define. The city council accordingly
passed a by-law detining what were termed the
hre limits of the city, and prohibiting the erec-
tion of any building within such limits otlier
than of stone, brick, iron, or other material of
an incombustible nature : — Held, that the by-
law was void, as not being confined to wooden
buildings, and therefore unauthorized. Atforiicy
General V. Campbell, 19 Chy. 299.
BUILDING CONTRACT.
See Work and L.\bouk.
A builder has no lien upon a house built by
him on the land of his employer for the jjrioe of
the building. Johnmm v. Crew, 5 (). iS. 200.
[See now 36 Vict. c. 27 ; 38 Viet. c. 20. ]
BUILDING SOCIETIES.
I. In what Name to Sue, 623.
II. FiNE.s, Shares, and Subscriptions, 624,
III. MoRTOAaES AND SECURITIES, 625.
IV. Miscellaneous Cases, 626.
[Ree O. ,"?. U. C. f. 53; 29 Viet. r. 38; 37 Vict,
c. 60, D.]
I. In what Name to Sue.
Under 9 Vict. c. 90, s. 12, the president and
treasurer of a building society may sue in their
proper names without further description. Doe
d. Barwick et al. v. Clement, 7 Q. B. 649.
But the president and treasurer suing must be
such when commencing the action. Doe d.
Morgan et al. v. Boyer, 9 Q. B. 318.
Building societies may sue in their corporate
name. Fanners' and Merhanies' B. S. v. Litmj-
staff, 9 Q. B. 183 ; Canada Permanent B. S. v.
Bank of U. C, 10 Chy. 203.
Plaintiffs, under a power in a mortgage to
them by B., sold the land to L., who paid the
president, but had received no conveyance ; and
the president, with his concurrence, then brought
ejectment in the name of the society against the
mortgagor, to enable them to give the purchaser
possession. Defendant, after venlict, applied to
set aside the proceedings as brought without
the plaintiffs' authority : — Held, that there was
clearly no pretence for such an application.
Emex B. Society v. Beeman, 19 Q. B. 509.
Remarks as to the right of a society to bring
ejectment in their corporate name, on a mort-
gage to the president and secretary. Ih.
II. Fines, Shares, and SuBscRivnnNs.
A by-law provided, that any member ikm-Icii,
ing to pay his monthly dues should tjf liinj
specified sum per share each immtli "until th'
end of one year, when the share or shares in il..
fault shall be declared forfeited to the siHjietv'
that a month before the expiration of s\icli vtat
the secretary shouhl notify the defaulter, oalliii
his attention to the by-law ; that in ease (if th"
defaulter being a borrower, these tiiien slioul,! 1
trebled, and that at the end of six luontlia' (L
fault the mortgage should l)e liable to fiireliisuri'
and to be declared forfeited ; — Held, that the
))y-law being ^jeiial should be construed strictly ■
and that the hues could be imposed on liormV.
ers only for twelve, anil <m non-ljorrowers for
six months, tlie riglit to forfeit or ti> forecld^^
l)eing then substituted : — Held, also, that suih
fines could not be recovered on aconiinon tdunt
but that the declaration should set out the I
by-law. Ottawa Union Buildinij Sorlvtiiy Sraii
24 Q. B. 341. '
A rule of the society declared, that, in ease I
of default in the monthly subseriiitidim the
tlefaulter should pay a line of 3d. per share iHr
the first month, 6d. for tlie second month, ami
Is. for the third month, doul)ling the tine f,,, i
each succeeding month, till the expiration (}f the
first six months ; and that . ■ ter that time the i
share should become forfeited : — Held, that iin
fine was chargeable after the tirst six months.
Such a rule cannot be waived by the ilirectdrs!
Wilson v. Upper Canaxta B. S., 12 I'hy. 20fi,
Where the members ceased paying tlieir '
monthly subscriptions in ton years alter th.
establishment of the society, under the sumio-
sition, on the part of all, that the soeiety shmilil
then terminate, an<l did not resume paying, Imt I
it was subsequently found that, from iiiismaii-
agment and losses, further payments were ne-
cessary : — Held, that the rule as to tines was not
to be enforced as regarded monthly subscriptiuus
falling due after all had ceased to pay. Ih.
Where a building society should, if properly
managed, have terminated in ten years, hut 'liil
not : — Held, that borrowing as well aa in*
borrowing members were bound to continue
paying their monthly subscriptions, if necessary,
until they reached the amount of their shares.
Wilson V. Upper Canada B. S., 12 Chy. 20li.
In January, 1864, a non-borrowing inember i
died intestate. No one administered until June,
1867. In that interval his shares ran intoarrear,
and in consequence the society in November,
1865, declared them forfeited, and carried tie j
amount thereof to the credit of the proHt anil
loss account. After the Eociety had been, or j
been su^iposed to have been wound up, and the j
assets distributed, letters of administration were 1
obtained, and the administrator applied to the j
society to be admitted as a member thereof, but j
was refused :— Held. 1, that the proceeding of j
the society to forfeit the shares in the absence of J
a personal representative was illegal; 2, tint j
the plaintiff (the administrator) was entitleiltoj
relief, and that the lapse of time between tie j
attempted forfeiture and the procuring lettenj
of administration was no answer to the claim j
—Draper, C. J., Hagarty, C. J., Wilson, J, audi
Gwynne, J., diss. Glass v. Jlope, 10 Chy. ^\
in appeij from S. C, 14 Chy. 484
625
BUILDING SOCIETIES.
026
III, MOKTOAOES ANI> SE(:URITIES.
Under !t Vict. c. 00, it is not essential to a
1)011(1 for the perfonnaiice of the treasurer's
duties, that he should join in it with liis sure-
ties. Two pleas intended to set up this defence
were held had for uncertainty. 11th i)]ea, that
the rules of the society did not provide that the
're&surer or other principal otticer should, once
at least in every year, prepare a general state-
ment i)f tlie funds and effects, according' to the
stiitutc. Replication, that the rules did i)ro-
vide that the statement referred to in the i>lea
slMrali Ih! made at least once in p ary year
aecdrilingto the form of the statute, &c. : — Held,
repHuation good. ir/Mw el al. v. Ckvicnt rt nl.,
I Q B 3H!). ^'^^' *'*"> J'^armcru' ami Mir/ianii-n'
"bS. v. iMi'Mfff, » Q- B- 183.
Buildiii" societies can take only real jiroperty
secmity, and cannot take collateral security for
loans Oil real ])roperty. Canada Pennaui-nt IS.
„„,(,V..S'. V. y.<»'K8(:'. P. 352.
But even hefore 22 Vict. c. 45, they might take a
Umd as additio'ial security for money overdue on
mortgage. //«;'(' v. Ulaxn, 23 Q. B. 8(5.
The plaintiffs sued defendant on a mortgage,
by which he covenanted to pay them £200 antl
interest, by monthly instalments of ,£4 10s. . with
alltiiiesaiul forfeitures imposed upon defendant
as » member of the society, &e. Defendant set
up M a defence, in various pleas, that the tran-
saotinii was usurious ; and that he became a niem-
Uirmerely to evade the statute, &c. : -Held,
tliattlie plaiutifl's, on the evidence set out in tlie
case, were entitled to recover, for what the
littendant did was authorized by the statute
iiicoriiorating these societies. Canada P. li. and
JJ.y.Hou;:!!, 19 Q. B. 124.
Covenant upon a mortgage. The pleas, after
iitatiiig that plaintiffs were a building society
Iduly constituted before 10th August, 1858, then
liet o\it the mortgage verbatim, which was dated
pth l)eceml)er, 18()4, and recited that defendant
Iking an owner of shares and a member of the
Tijciety, liad borrowed therefrom 88,000, and
fcven a mortgage to plaintiffs, prior to that sued
m ; that defendant had made default thereun-
jder, and it had been agreed that an extension of
lime should be given on his executing the niort-
;e in question by way of further security ;
1 it was witnessed that, in consideration of
k extension of time, and " for the further
lonsideration of §8,483 due and owing," defen-
pemiant had granted, &c. ; that defendant cove-
mted to pay on the 2nd April, 1865, ^«75,
lortion of the principal, with interest thereon
j^tSper cent, from the date thereof, and 87,808,
' ace of principal, in forty quarterly pay-
ments, with interest upon the principal, at per
«nt from the first Jay of November, 18C4, a
by anterior to the date of the mortgage. The
plea then went on to aver that the mortgage was
\ corrupt and unlawful deed, whereby it was
lorruptly, &c. and against the form, &c. , agreed
ietffeen the pi lintiffs and defendant, ax in the
wr/jai/f mfntiimi-d and eontainfd, that plain-
& should loan to defendant the $8,483 at an
nlawful rate of interest ; that is to say, $1575,
lortion thereof, at 8 per cent. , and the balance
^,808, at 6 per cent per annum, to be calcu-
from a day anterior to that on which the
noneywas advanced:— Held, pleas bad; for, i.
40
plaintiffs lieing authorized as a building society;
iKjfore the 10th August, 1808, to lend money,
were within the exception of sec. of the " Act
respecting Interest : but that they could, how-
ever, lend only as authorized by their act of in-
corporation , anil, next, it did not appear from
the mortgage, that the Ji7,808 was not duo at
the time from which the interest had been re-
served, for the expression in the deed, "now
due," did not shew this ; and as to tlie reserva-
tion of 8 per cent., it sulHciently appeared that
the mortgage was given to secure an advance by
the society to one of its members, and was within
the protection of tiie " Act respecting Building
Societies ;" for the bonus authorized by the Act
to be charged, might be properly spread over the
period of the h)an, in the form of an increased
rate of interest : — Held, also, that such a trans-
action cannot properly be called a loan, but is
correctly descril)e(l by sec. 4, of the act of incor-
poration. Mode in M'hich such a transaction
could alone lie impeached indicated. Canada P.
Building and Savings Society c. Kowell, 19 Q. B.
124, observed upon: — Held, that the (piesticm of
usury or no usury, upon facts properly pleaded,
is for the jury, and not for the court. Canada
/'. li. Soeietji v. HarrU, 10 C. P. 54.
Building societies are virtually exempted from
tile usury laws. Fretlmlil Pevniaui'nt B. and S.
S. v. (JliiiaU, 18 t;hy. 412.
Mortgivges taken for advances to liorrowing
members iieeil not express how much of the
interest reserved is a bonus in respect of the sum
advanced, and how much for interest. //>.
It is not necessary th.at the seal of a building
society should hi: aHixed to an authority to its
agi'iit to sell uiidcr a power of sale in a mort-
gage ; the entry in the books of the society is
suHicient for that purjiose. Onhorw v. Farm-
vrn' and Mirhank»' li. S., 5 C'hy. 32(i.
Where a mortgage by a borrowing member
recited that he had purchased seven shares of
£100 each, and was conditioned for the payment
of the monthly subscriptions upon such shares,
and of interest upon said i'700, by equal monthly
payments of ,£3 10s. each, and provided for sale
of the property in case of default, and for the
society's retaining out of the proceeds the re-
mainder of the £700 then unpaid, and all interest,
lines, and other simis due or payable, giving
credit for 8ul)scription8 theretofore paid and in-
terest therecm at six per cent, from the time of
payment, and for payment of the surplus to the
mortgagor : — Held, that the mortgagor was not
liable to pivy £3 10s. a month, or 10s. per share
for the interest for the whole period, but only at
that rate on so much of the £700 as from time to
time was due after giving credit for the monthly
subscriptions paid. Wihon v. Upper Canada B.
Soviet j/, 12 Chy. 206.
IV. Miscellaneous Cases.
Declaration on a note made by defendants, a
building society, incorporated under C. S. U. C.
c. 53 : — Held, good on demurrer ; for they might
legally make notes under certain circumstances.
.S'/irt)T V. Toronto P. B. and S. Society, 29 Q. B.
317.
A decree was obtained in a suit by a share-
holder on behalf of himself and all other share-
H;
■i
If!
I .; J-l".
■''%i;
■' il-: li,
a: fcil
m
WW
627
CANCELLATION.
!■
:i::ii
holders, for the admiiuBtrAtioii of the aBaets of
the society, and chnrgiiiK tlio directors with
losses sustained : — Held, that purHons who had
ceased to bo directors before the suit could not
be made parties in the master's ottico, Ifuljili v.
Upper Canada Ji. A'., 11 thy. 275.
BURGLARY.
See Criminal Law,
II.
III.
IV.
V.
BY-LAWS.
Municipal Bv-LAWs-.SVf Municipal Con-
PORATIONS — AhHESSMKNT AN1> TaXES —
—Purvey — Way.
Quashing By -Lawh— iSVe Municipal Cor-
porations.
Proof 0¥—See Municipal Corporations.
Of School Boards — .SVp Public Schools.
Taverns and Suop.s — Hce Taverns and
Shops — Temperance Act.
CALLS, ON STOCK.
See Corporations.
CANADA COMPANY.
Process to compel an appearance by the com-
pany could not be served on their attorneys
here, the directors and common seal being in
England. Cooper v. Canada Company, Dra. 413.
Held, I, that the recitals in the imperial sta-
tute 6 Geo. IV. c. 75, were sufhcient proof of the
charter of the company ; 2. That the company
had power to appoint a special seal for the exe-
cution of deeds by their commissioners here, and
the proof of such seal given in this case was held
sufficient ; .3. That the production of a docu-
ment within the powers of the corporation, with
the seal attached, is sufficient primft facie evi-
dence of its proper execution. [Voodh'dl v. Sul-
livan etal, 14 C. P. 265.
Under the 27 & 28 Vict. c. 100, a deed from the
company, dated 17th February, 1835, in the
form given by the Imperial Act, 9 Geo. IV. c.
51, and under the seal of the attorneys of the
company, was held proved by its mere produc-
tion, and sufficient to pass the fee. Ftll v. South,
24 Q. B. 19G.
The company, by their charter, are rot ex-
empted from giving to purchasers of the lands
granted to them by the crown the usual cove-
nants against their own acts ; and as to lands
purchased from private individuals, the company
will be required to give the same covenants as
another vendor. Scarlett v. Caniula Co., 1 Ohy.
Chamb. 90.-Esten.
CANAL.
See Desjakdins Canal — Rideau Canal — St.
Lawrence Canal — Welland Canal.
iiw I
I'll-
was sii I
A railway comi)any had the control nf a ji^jn,
bridge over a canal. The plaiutitV'H .sliii, „j||
navigating the canal when trains were- al>.ii>
passing and rupussing tlie Imdgc. Ndtioe «
given of the plaintiff's vessel being alidut •"
pass, by blowing a horn and hailing, miil noti,t
was given by the conipuny's servants l.y hj^^,,;
that the bridge could not then be •*« ung, a,,
the plaintiff's vesuel was iujui'u<l liy lumiii,
against the Itridge while it reniiiinud ild.so,!
Held, that as the re(iuirenieiits nt' tlio iiiil«,j
traffic compelled the bridge to lie tid.st'd, ti
company were not then bound to(H)i'ii tlio li'rid.j
and were not liable for such injury, tn which tfn
plaintiff' had contributed by his dwn ncglii/i.iii,.
Turner v. Ureal Wextern H. W. Ci>., (1(,'. y ,-,;(,;
See JJeitjarilinM Canal Co. v. (Jrait Wtsin-n !■
W. Co., 27 Q. B. 303.
Tlie declaration set out certain i-fguiatidn,
made in pursuance of the statute, for tla- pr,,'
per use of the Welland canal, directing thai
tjoats waiting to enter a h)ck slioulcl lie in sin^
tier, and advance in the orderiuMliieli they lav
and that all vessels approaehii.g a. hiek, wliil,!
any other vessel going in a contrary (iirectim
was aljout to enter it, should lie stoimeil aini
made fast as directed, and remain tliere until
such vessel should have passed, under a jjenaltv
named. It then alleged that defendant's vesmf.
which was waiting to enter a lock with tw
vessels, passed them out of its order, ,
deavored to enter first, and wliile it
approaching, the plaintiffs' steanihoat, gdinj,' m
a contrary direction, was in tlie loek ; Imt ilo-
fendant (lid not stop or make fast his vessel, Imt
wrongfully, and in violatioji of the regulatiniis.
went on and endeavoreil to enter the Imk,
whereby it was driven against the iJaiiititiV
boat, which was forced against the side uf tlic
lock and injured : — Held, bad, for the enntravtii-
tion of the regulations formed no oaiise of actimi.
and no negligence on the defemlant's part w;is
alleged. Jarquen et al. v. ykhoU, -I'y Q. B. VSl
Injunrtion granted, at the suit of the creditoi^
of a canal company, who had a lien on the taual,
against a sale thereof under a subseijuent execu-
tion. Town ofJJundas v. Deajardinn Canal Oi.,
17 Chy. 27.
An act of parliament having provided that it
should be lawful for a canal eonipanv tmuta
channel across a certain highway, and to erect,
keep and maintain, a safe and eoniniodioiis Iriilge
across the canal, and the bridge after Ijciiig
erected having become unsafe through the 'iel'aait
of the canal comi)auy, an incorp;)rated road com-
pany, which had acquired the road, made sev-
eral endeavours to get the bridge repaired, Imt
all of them having failed through the iusolveucv
of the canal company, the road conipanyatlen^li
commenced the erection of a fixed uridge, whicli
would impede the navigation of the canal:— Helil,
reversing the decision below (17 Chy. 31), that
they had no right to do so, and a perinaueut in-
junction was granted. Spragge, ('., and Moist,
V. C., diss. Town o/DuiidoK v. Hawillun iml
MiUon Boad Co., in appeal, 18 Chy. 311-
CANCELLATION.
I. Of Bonds — See Bonds.
II. Of D&tDS—See Deed.
I.
W'Kir OH
11.
Bail on
III.
Ca. Re.
IV.
Ca. Sa. -
V.
Mamciou
AuKf
Proc
629
CAriAS AD SATISFACIENDUM.
630
HI. Of Lkasks— .SVf Inv.i).
IV. Of Wills .SVc Will.
V. Of HiLLH "K NoTKS Srr BiLLH i>V K.\-
lll.\N(lK ANI» I'l "MIS.SOKY Nol KS.
CAPIAS.
I. Wkit tiv—SfP Arrest.
II. Bail on— AVc Bail.
III. Ca, Ke. — SV« Capias ai» Hempondendum.
IV. Ca. Sa. —iV^e Capias \u .Satiskaciendum.
V. Maliciously Simno Out — .S^cc Malicious
Ahkkst, Prosecution and Other
Pkoceedinos.
CAPrAS AD RKSPONDENDUM.
I. ',Vrit and Copy, G'2J).
1. Amendment of Writ — Sir Amendment
at Law.
II. How Issued, 630.
III. Miscellaneous Cases, 630.
IV. Malicious Arre.st— jS'w Malicious Ar-
KKST, Prosecution and Other Pho-
('KKI)IN(!S.
V Indorsement on Bailable Writs — See
Bail.
T. Writ and Copy.
Wlicre, by the operation of provincial enact-
i nieiits, aplaintitf was unable to give a proper date
M'l tlie notice at the foot of a ea. re., a general
I mitice to appear on the first day of the term was
i kill sufficient. Brown v. Smith, Tay. 187.
A ca. re. issued in vacation must bo tested the
ast day of the preceding term. ArmMron'/ v.
\!irM, M. T. 4 ^Vill. IV.
, A bailable ca. re. must he tested in the name
lof the chief justice, or, in his absence, in the
I name of the senior puisne judge. Cane v. Mc-
|l'fij;/i, T. T. 3&4Vict.— P. C.— Maoaulay.
The original ca. re. must be presumed to
Icorrespond with the copy till the contrary be
lihewiL Melnlosk v. Cumminj/s, 1 C. L. Chamb.
T8.— Macaulay.
The service of a copy of ca. re. will be set
liside, unless a notice to appear be written
Ithereon jjursuant to the statute. Quajre, must
ithis notice be endorsed on the copy of the writ ;
Imay it not be written on a piece of paper
lattached to it? McTie.rman v. McCliesney, 5 Q.
|B. 631.-P. C. -Draper.
Semble, that the writ of capias mentioned in
|12 Vict c. 63, s. 24, may properly be called a
lea. re., as it is in 16 Vict. c. 175, s. 3. TyHon v.
|J/cifttH, 1 P, R. 339.— C. L. Chamb.— Richards.
"Oath for £— ," instead of "bail for £— by
Jaffidavit," is sufficient. Gillesnie ft al v. Bemina,
II P. R. 387.-C. L. Chamb. -Robinson.
II. How Issued.
A ca. re. issued on the last <lay of one term,
01) an allidavit made after the tirst day of the
following term is irregular. Wentorer v. linrn-
ham. T. T. 3 & 4 Vict. -P. C. Macaulay.
Practice in issuing testatum ca. re. Patterson
V. Catvin, 1 Q. B. 409.— P. C— Hageman.
As to the issue of a bailable ca. re. by a com-
inissioner, and its service. Story v. Durham, 9
Q. B. 316.
An original ca. re. may, under 8 Vict. c. 36,
issue out of the oHicu of the deputy clerk of the
crown of one district, directed to the sherifT of
another district. McMan v. Patterson tt ai, 9
Q. B. 631.
III. Miscellaneou.s Cases.
A plaintiff cannot, after taking out his ca. re.
in one district, file his declaration in another.
Throop V. Cole, Tay. 214.
The ca. re. is not the first and original process
in a real action, such as dower. Phelan v, Phelan,
Dra. 386.
A ca. re. not bailable must be served by the
sheriff or his officer, though the deputy sheriff
1)0 a party to the suit. Kuttan v. Anhford, 3
0. S. 302.
Where a defendant moved to set aside the
service of a writ of ca. re. for irregularity, and
it appeared that the process served was a testa-
tum, and not an orujinal writ, the rule was dis-
charged with costs. Tool v. Low, 2 Q. B. 95. —
P. C— Jones.
Where there have been several writs of ca. re.
sued out and the last served, the plaintiff to
have the action considered as being commenced
by the tirst writ, must shew at the trial that it
wa.H returned. 8emble, that the continuance be-
tween the intermediate writs may be entered at
any time. McLean v. Knox. 4 Q. B. 52.
Where the defendant, being a married woman,
and known to be so bj' the plaintiff was arrested
on a ca. re. , both writ and arrest were set aside
with costs. Foley v. White et ux. , 2 C. L. Chamb.
51. — Miicaulay.
When the ca. re. is only against the wife, and
is irregular against her, the uusband cannot be
compelled to appear. lb.
CAPIAS AD SATISFACIENDUM.
I. Affidavit for Writ, 631.
II. Effect of Arrest under, 632.
III. Miscellaneous Cases, 632.
IV. Arrest Under— ^ee Arrest.
V. Writ.
1. Amendment of— See Amendment at
Law.
2. Poundage on — See Sheriff.
Bail— See Bail.
VL
vn
On Examination of Judgment Debtor
— See Bankruptcy and Insolvency.
t
'1'
I ■
I , - !
i I-
iit.p
■'■'i
■
•
^ij
W 1
631
VIII.
IX.
CAPIAS AD SATISFACIKNDUM.
MAi.K.'iorH Ahkrmt— .SVc MALiciDim Ak-
KKST, I'ltOHKCUTION ANIt OniEK I'HO-
CKKIitMIM.
I'rock.kdino.s
I'llIMdNKH.
AdAINHT rHIHONBKH— .SVc
I. Akkidavit KOU WUIT.
A ua. sn. iiiHy issnu on nn atlitlavit Hwoni liu-
fnro u JikIuo in l<i)wor ( 'hiuuIu, wluwe Migiiittiiru
18 verineil uy atliilavit lieru. Coil v. M'i/k/, 'A (I.
S. 439.
The atiiduvit nouil not Htatu plaintitT'H Hccond
Christian name, whuru hu ii< iluttcrihuit aH tliu
above phiintitt'. I'erkin.-* v. Vuniwllij, 4 O. S. 2.
Where a plaintiff aiieil out a ua. re, and witli-
out executing it took a I'oguovit ami untercil
common bail and judgnunit againHt dofondant,
and arrested him on a ca. Ha., witliout tiling a
fresh atHdavit, the ua. sa. and arrest wure set
aside with costs, lirnnni v. IMhinic, 4(). S. X\\.
Wiieri) a <lefendant was i^rrested on mesne
process and committed to prison, and aftcrwanls
charged in execution in the cause witliout a new
afHdavit, before 7 Vict, c, 31, tiie court held
that he was not entitled to .'lis discharge, as tlie
plaintiff could is.sue a n\. sa. against him with-
out a new atKdavit, as well when he had been
committed to prison on mesne jiroccss, as when
ho had been held to special bail. /Ituniltdii v.
Mlmjaii, 1 Q. B. L'2.
A ca. sa. cannot bo issued since the Insolvent
Act, 8 Vict. c. 48, on an aHidavit Hied before.
Siwell V. Dmij, '2 il K. 170.
An attidavit for a ca. sa. that the defendant
has made some secret ((;/(/ frauilulcnt convey-
ance, &c., and not some secret «/■ fnudulcnt
conveyance, is good »inder the statute. Eiriin/
et al. v. fM-khml, 3 il li. 248.
Where the plaintiff, pendiiiL' tiie suit, took
out a ca. re. upon whirli defcnaant wa.s not ar-
rested : -Held, that under '1 (!eo. IV., c. 1, a
ca. sa. might issue after judgment ujmn the same
affidavit. Semble, that such writ may include
the costs, altlumgh the sum taxed will exceed
that sworn to. livattii v. Tinjlur, '2 I'. K. 44. -^
C. L. (Jhand).-- Burns.
But under the C. L. P. Act, 18o():— Held,
overruling the last case, that such a proceeding
was irregular and should be set aside. The
afhdavit must relate to the present belief of the
party making it, and must therefore be sworn at
the time of issuing the writ. Mos.i el al. v. Rviil,
7 C. P. 429.
It is sufficient to swear either fact, that the
debtor has parted with his property to prevent
its being taken in execution, or that he has
made some secret or fraudulent conveyance for
that purpose, &c. : — Held, that in this case, under
the facts stated, defendant was amply justified
in swearing to the first alternative. Maxwell v.
Ferry,iC. P. II.
After a voluntary escape from the sheriff of a
prisoner held under mesne process, plaintiff may
proceed with his action ; and, Semble, may issue
a ca. sa. without affidavit, if he has had a capias
pending action, or an alias ca. sa. if the ca. sa.
to fix bail has been returned non est inventus,
and take the defendant thereunder ; and at all
cvonti, iilaintitf may have a ci. ua. iNxni'tl nn
new atliilavit and re arrest delend.uit, IL.tu
v. W.inl, 17 C. I'. t!t;7. * '
II. Fkkkit ok Ahhkht I'Mirii,
The arrest uiinn a ca. sa. ami sulisii|i|,.,|( ,1
charge of one of Hcviiral dct'iMidaiits liy tin. |i|,m.
tiff's in an action against the ilrawVr ,ii|,| ,'
ceptors of a bill of Kxihange ; Hi'M, imttcil
a satisfat'tion of the judgment, so ,im tn pri'vcit
the Hubsciiucnt issue of a fi. fa. tliciidn iwmm
the other defendants, //iiniilton rl ,il, \ jj'
riimli <l al., 1 1 C. P. 9.3. See .V. r,, 7' |,',| '^^
HcM, atlirming the jmlgnifiit of tlicC. \> \;
V,. 1'. ;iH, that where the holder of ,1 lii|| ,if ,,"'
change or promissory note sues, uinli-r tin; »tiit
ute, the drawers, accejitors and fiiddiscis Jn mi,
action, he may discharge the drawcis d,. ,,|,,|„j
scrs (or accommodation accciitors) iiitcrimnmst
under a ca. sa. , without losing' Ins rciiii-ilie,
against the other defendants liable 111 |iri(iritvto
those diseliargcd. .McLean and I'l'iiicr, ('.,),|
diss. Ilnlroiiili V. //(iiiiilloti, \l K, it .V. 'j;jo
in. MiscEI-LANEols Casks.
A defendant, in whose favour a venliit is
rendered, is entith^d, under the cc|iiity of the
King's Bench -Act, '2 (leo. I\'. u. I, tii a cit «».
lor the costs of his diMenec. T/iuiiikuh v. I,,„.
mini, 3 <). .S. I,')!, (ilO. .Sue Julnintui v. SiiuulU
Tay. 1.38.
The ca. sa. lodged in the slieiilf's (illlti. t«
charge the bail is not a charging in fxemtinii.
Diiniiitn V. /'inrsoii, Tay. 'Jti,").
Tile court refused to set aside ii|ioii iniitidnn
ca. sa. issued upon a judgment nioru tli;iii ,1 viar
olil without a sci. fa. to revive it. TIk; en! sa.
was clearly irregular, yet not void, luit vdjil.ilili,
and the projier remedy would sieni t(i liuaunt
of error. .McXntli/ v. S/i/iIk ii.'i, Tay. •.'(13.
It is irregular to issue a ca. sa. n|i(iii a jiuig-
ment more than a year old, even tliimgli an.
fa. has been issueil within the year, liiit iint
returned, without a sci. fa. WUmiiix. .Iinmi>m,
(i O. S. 481.
On V, return of "devastavit," a ea. »a. i!-<
I ot issue as a matter of course without (.iiiiiiii.
Williinl V. ]Vu..l,-,ii, Dra. '.'11. ,
^Vhere one defendant had been am'stuil, .ml
the other served on mesne process, thti wm.
after judgment, allowetl a ca. sa. to issiit
against both, but to be executed only ugniiut
the (me arrested. Mr/iilyri' v. Sutlurhml lid,
5 O. S. 153.
An alias ca. sa. may be issued l)y a ili'imty
clerk of the crown in an outer district ; and it n
no ground for setting aside such writ that the
deputy has not transmitted the altidavit aii<l
priecipe, within one month after they were tilo.',
to the principal office, according to the statute
Scott et al. V. Macdomild, M. T. 7 Vict.
An al. test. ca. sa. is still a ca. sa. ; ami there-
fore when a defendant justified under the alias,
and the plaintiii' replied that the said writ hail
been set aside, and then proved a rule nf cMiirt
discharging the arrest under a ca. .sa. :- Held, no
variance, Kobertaon v. Meijerit, 7 Q. B. 4i3.
Klll'll nil J
633
0ARRIER8.
6W
Im'stuil, ;iiiil
tilt! nilirt,
III. til issue
linly iigainit
■y a ik'inity
Tt: ,111(1 it is
lit that tbe
Itlilavit ami
r were tile.',
|he statute,
pt,
luiil tlifre-
[T the alias,
1 writ liml
lie iif cmirt
-Helil,™
IB. m
Scinlilt'i t'"*^ n<)cn, wi. win Ik! ai-toil ui«iii whiU*
ti fft. "" wliii'li jH'ooeeiliiigM tmvc ln'cn tiikuii
reiiialliw i
lit ; ikiiil
that wlu'ii
JMHIU'll,
^ihxIh IlllVtl ItCtlll
I mill a von. I'x. iHMiU'il, tlu'y ihUNt lie hoIiI
i'"i nMli'l'iniliiiit can 1x1 arri-nti'il fur tlio it'Hidni-.
»•//,,,,/.-' -''• V. K,<,,vijr,l„l.,'i 1'. W.-m. V.
., ;iii:lxirtn ; ItoKix. Cuminin, IC. L, ('liain)).
,2i._Miu«iiIay.
The ul/iintitt'H havinK ii)>taine.l a jiulgnient
'aiiHt tlu; (lufunilant on tlio 7tU .luno laHt,
i^ueilaea. na. im tliu jmlgnient, tUructuil to tho
I f,rt„f (Ixi'oril, Imt did nnt thuu idacu it in tlio
.litritT'i li'""'"' '•" th" '-*■'' •'""^'' ^'"-'y i**"""'!
ati fa. Kixxl" til tiio name Hhorit!', which wiu* on
the same day returned nunalKina. (»n tlic \\i\\
'...,1. thcv ixmiii'l writs of ti. fa. hmdn to the re-
iWrilfH of Oxford and Hahliniaml. (»ii
..no thvy, they tiled a hill in « 'hancery to
chiw certain euuitahle interostHof defendant in
Wills whii'li coiilti not Imj direi:tly reached through
the writs at law. On the I tith Septeniher, they,
for the tirst time, jilaced their ca. sa. in tiie IuuxIh
of the sheritV of Oxford, the wnt.s ayainst lands
then lieiiiK i" his hands and the iiroeee<lin>;s in
Chancery still pendiuK. 'I"he ca. sa. was not
nniiierlystylol i" the cause, and was not tested
111 the iiaine of the chief justice or the other
iiiili(e»f the court from which it issued : Hehl,
tluttheplaiiititt's proceeding's violated the spirit
(lithe law, in charging deftiulant in execution on
a Oil 8»., whilst endeavouring to enforce a reni-
flya'aiiist his linds through an ixeciition issued
jiiuelheea h,i. and since a li. la. goods returned
nulla Ihhiii. Such heing the case, the applica-
ti.iii t(i amend tho writ of ca. sa. was refused,
aiiil the writ set aside for in cgularity with costs,
Iffeudant undertaking not to hring an action for
> est. Send)le, the irregularities were
'lie, and would, on terms, have been
uiulur ordinary circumstances. I'arrii
I'urm-i; 8 L. J. 21K>.— (J. L. Chaml).—
lliehanls.
.>riiilile, fifteen days need not elapse between
ihe teste and return, liintlii v. Tiiiikn; 2 I*. R.
41. -('. L Chaml). "Burns ; JlKitl'u' v, MrKitij
,1 III., i C. L Chaml). M. Draper.
When a judgment is against two, ii ca. sa.
j upon it must include both, or show some reason
I fur the nmission. Tiinirr v. Willioiii'i, I 1*. U.
1360. -C, L Chaml).— Robinson.
.\ eiL sa. cannot be issued in U. (!. on a judg-
[ment for costs only. Under 22 Viet. c. 00, s. 13,
[on such judgment an order for eoniniittal for
Icdntempt only will be granted, and not for a ca.
•u. Mnjern V. RobevlKoii, 5 L. J. 254. — C. L.
ICbamb,— Mulitian.
Avtritof ca. sa. tested in tho name of a rc-
[tire(lc>.ief justice, after his auuoessor has been
lga& v»\, but before ,icceptance of ofKce by taking
Itte necessary oaths of otfice : — Held, irregular,
Ikt amendable. N<'lwn v. Hiy, 3 P. R. 226.—
|C, L Chanib.— Morrison.
Delay in issuing a oa. sa. to fix the luiil, can-
lot be pleaded in oar to an action against them
'm the recognizance. Carroll v. Beiri/man tt al. ,
PQ. B.520.
Where a party arrested under capias pending
Ktion, and before judgment, gives bail, and after
pidgment and ca. aa. to tix bail returned non est
nventus, is rendered to the sheriff 's custody by
Ua bailin their own discharge, such prisoner is
still under nu'snv procesH, and in not oonline<l in
execution. HfxH-Hh \. tt'tinl, 17 «'. I'. ««7.
The KngliNli statuten, 1 Annu st. 2, o. U, and
!\ \mw c. i», relating to escape warrants are not
ill force in this province. //>. -A. WiUoii, diss.
CARKIAOK OF DKtJRKK.
.SVc PRACriCK IN KgUITY.
OARRIKRS.
I. Who auk Common Cakkieiw, i\M.
n. I-IAHILITV AS CARKtEK.S OH WAKKHOI'SK-
MKN, <i:U.
I. <>/ /ftiihi'df/ ('Diniiiiiiii's Scf R .il.WAVS
AM) Railway (Jompanik ■•
III. ('i)NVEYAN«:E ok 1'KHSoNH,
1. //// CiKirh or llurnf Rniliiuu/K, fi.TB.
2. liy liitilii'itji .SVf Railwavm andUaii,.
WAV Co.Ml'ANIK.S.
3. Hji W'alir-Sie Ship.
IV. CoNVKVANCE OK (iooDS.
1. Jiy Cimrh or EjrpresH, ()3().
2. Othn- ViUAVn, 037.
3. Ihj Ru'ilwaij -Sec Railways and Rail-
way t'<).MI'ANlE,S.
4. Hij Wnlir -Si'i' Ship.
V. MlHCELLANEOU.S CASE,S, 038.
t. Who are Common Cakrikhh.
A forwarder is a connnon carrier, and not
liable for loss from the act of Ood or the King's
enemies. Smith v. Whiting, 3 O. S. 51)7.
A person engaging to tran8))ort g<M)ds for hire
is not, by virtue of such ongagcnieiit merely, a
common carrier, liviivilict v. Arthur, Q. B. 2(M.
The plaintiff proved a receipt signed by <lefeii-
dants, contracting to carry on certain conditions,
and that they had carried tish for one witness
called, as well as for tho plaintiff, on an arrange-
ment inafle by their agent in their office for a
month. This witness also said the other fisher-
men in (r. had arrangements with defendants for
the carriage of tish : — Felil, some evidence that
defendants were common carriers. . Leonard v.
American E.ijirrnH Co., 20 Q. B. 533.
II. Liability as Carrier.s or Warkhouhkmek.
When in an action against common carriers
from Kingston to Montreal, it was proved that
the plaintiff had sent his goods to defendants at
a season when they could not be forwarded, and
defendants received them into their store at
Kingston to be forwarded at the earliest oppor-
tunity, and before the navigation had opened,
or time for transportation had arrived, they were
destroyed in defendants' storehouse without
their default, bv an accidental fire, and a verdict
was found for the plaintiff: — Held, that it ought
to have been distinctly left to the jury to hnd
:|1
*
1:1
635
CARRIERS.
630
m
whether the defendaiits received the goods only
as warehousemen until the opening of the navi-
gation, or whether their liability as carriers
commenced from the moment of their receipt ;
and it not having been so left to them, the court
gi-anted a new trial. Jfam v. McPlierson et cd.,
(J O. S. 360.
Held, on a subsequent trial, that it was a ques-
tion for the jury whether defendants received
the goods as carriers or warehousemen, and that
the circumstance of the navigation being closed
by the ice every year at the season of the receipt
of the goods, and also at the time of the fire,
did not necessarily determine, as a matter of
law, that the defendants must be looked upon
as having acted in their character of warehouse-
men only. .S'. C. H. T. 6 Vict.
Where flour was delivered to defendants, who
were warehousemen and carriers, with directions
to sell as much of it as they could during the
winter, and put the remainder in transitu for
plaintiff in the spring, and some sales having
been made before the navigation opened in the
spring, an accidental fire destroyed the remain-
der, without any default or negligence of defen-
dants : — Held, that as the flour at the time of
the fire was in the hands of defendants as ware-
housemen, and not as common carriers, they
were not responsible. Thirkell v. McPhersoii et
al., 1 Q. B. 318.
III. CONVKVAXI'E OK PeUSONM.
1. Bij Guach or Horse liailways.
In an action against a coach proprietor for
injury to a passenger by upsetting, it is no mis-
direction to tell the jury that unless the driver
exercised a sound discretion at the time the acci-
dent happened the owner is responsible ; and if
he could have exercised a sounder judgment or
better discretion than he did, as by driving
slower or faster, or by directing his passengers
to get out at any dangerous or difficult passage,
the proprietor is liable. Stanton v. Waller, H.
T. 6 Vict.
In an action against the proprietors of a rail-
road car drawn by horses, for an acci<lent to the
plaintiff by the carelessness of the driver, an aver-
ment that the contract was to c.^rry safely, is
supported by proof tliat the accident arose from
the driver's want of care and skill. T/iompxoii
v. Mad-lem et al., 2 Q. B. 300.
In an action against four, the declaration stated
that defendants were proprietors of a stage coach
for carrying passengers ; that they received the
plaintift' as a passenger for reward : and by
reason thereof it became and was their duty to
use due care in conveying him ; yet they, not
regarding their duty, did not use due care, &c. ,
but by reason of the carelessness and improper
conduct of the defendants, by their servant, he
was thrown oft" and injured, &c. : — Held, that
upon this declaration a verdict might be given
against three of the defendants, and for the
other. Guiin v. Dickson el al., 10 Q. B. 401.
The plaintiff', stantling on the front platform of
one of the defendants' cars, which was crowded.
Was thrown off by a jolt and injured, but it di(l
not appear whether, at the time of the accident,
he was holding on to the iron rail on the platform
or not :— Held, that the fact of the pl.iintiff not
proving affirmatively that he waa so holding on,
was not a ground» for nonsuit. Gornkh v. Tomm ■.
Street R. Co., 23 0. P. 355. '
IV. Conveyance of Goous.
1. By Coach or Express.
Held, that the stage coach proprietor (whi,
was al'50 the contractor for carrying the maili
was not liable, under the facts of this uiisc foj
the loss of a letter containing a note. HiJinm,
V. Weller, 8 Q. B. 202.
In an action against a carrier for non-iU-liverv
of a package of money, defendant jileaded not
guilty. The plaintifi's witness, their agent
proved that within a week after hia delivering
the parcel to defendant he found that lie had
absconded : that he then sued out an attaehnitnt
against him as an al)Sconding debtor ; and that
as he believed, defendant was at the time of the
trial in gaol, charged with stealing the money :
— Held, that this evidence sufficiently shewed a
felony, as defendant upon it might, as a hailee
be properly convicted of larceny under C. S. (.'. c!
92, s. 55, and a nonsuit was ordered. Hagnrtyi
J., diss. LiviiKjstone et al. v. Mu-sm^y, tl'iO, b!
15(). See Reijina v. Masseij, 13 C. P.' 484.
The plaintiff proved a receipt signed by defen-
dants contracting to carry, on certain conditions,
and that they had carried fish for one witnesj
called, as well as for the plaintift', on an arrange-
ment made by their agent in their office for a
month. This witness also said the other tisiier-
men in (i. had arrangements with defendants for
the carriage of fish :— Held, some evidence that
defendants were carriers, and tliat if so, they
were liable to an action at common law for re-
fusing to carry except upon conditions limiting
their common law liability. Held, also, that to
support such action it must be shewn that the
plaintiff tendered the goods to be carried, as well
as the fare. Held, also, that the contract to he
inferred from the evidence stated in the case,
was a limited not a general one as declared npoii.
Lieonard v. American Express Co., 2G Q. B. W.
Plaintift" sued defendant, an agent of an ex-
press company, on an alleged undertaking t"
take and carry a copy of a lost note and present
it for payment, and in case of uoii-paymcnt to
notify the endorsers. Breach, that defeniliuit
did not present or notify, in consecjuenee of
which the endorsers refused to pay tlie note.
The evi<lcnce shewed no demand by tlie phiiiitiff
upon the endorsers for payment, nor refusal liv
them to pay : — Held, that without siioh eviihiice,
&c., the plaintiff could at most recover only nomi-
nal damages ; but that defendant was entitled to
a verdict, for that on the evidence ho had fultilled
his cfintract by canying the note to the place
agreed upon, and placing it in the hands of a
notary for presentment and protest. Mc(Jmirfk
V. Fanjo, 21 C. P. 478.
The declaration alleged that the defendant
before the committing of the grievance, &c.,m
a carrier and express agent : that the plaintiff
delivered to oneW. a sum of money to he haniied
to defendant, to be carried and delivered to S.,
and that defendant falsely and fraudulently rep
resented to the plaintiff that W. had dehvered
said money to him, wherebj^ the plaintiff was
satisfied of the fact, whereas in truth it had not
been so delivered, but appropriated hy \\.to
637
CASSETUR BILLA.
G38
his own use ; and by reason of such false and i
fraudulent representation W. obtiiined time to !
and did abscond, and the plaintiii' lost said |
money, which he would otherwise have recovered ;
from "'. :— Held, on demurrer, that a sufficient
cause of actio m was shewn ; that it was unneces-
sarv t" allege that defentlant knew the represen-
tations to he false, the words yW/xt-/// imdj'niiulii-
Iftillii being eiiuivalent to knoiriihili/ ; or that
defendant was a carrier at the time when, kc,
for the ground of action Ijeing the fraud, his
beini; a carrier was immaterial. YiKniij v.
VAn, 32 Q. B. 385.
2. Olhe7- Case.^.
Constniction of a contract entered into be-
tween the consignor and forwarder of goods, as
to the discretion the forwarder may use in the
time, mode, and place of shipping the goods.
Fowltr V. Uouktr, 4 Q. B. 18.
It is no defence for a forwarder deviating from !
his instroctions, that after the deviation he told
the plaintiff's agent he had done so, and no
objection was made by the agent. Aliter, if he
had told the agent of his intention before the
deviation, and could shew that the agent had
any discretion in the matter. Ih.
Where a person delivers a parcel to carry to a
person on board a boat, not as to a servant of the
owners, but to be carried by such person him-
self, either for reward or otherwise, the person
so cupagiug to carry it is alone responsible for its
loss. Mcleod v. Ebertii et al., 7 Q. B. 244.
If, however, the parcel is delivered to the
person on board to be carried, not on any private
undertaking, but a? an officer of the boat, the
I owners of the boat would be chargeable with the
loss, though they were to have no reward for
carrj-ing ; but thgn, to establish the liability of
I tbe owners, it would be necessary for the jury
I to tind gross negligence in the owners or their
! servants, or at least a want of that ordinary care
I which a prudent man would take of his own
oods. /').
Assumpsit on the common counts for work
luid labour, &u., by plaintiffs, who were coni-
Imon carriers by water. Plea, setting forth a
Idelivery of the goods carried by plaintiff to a
Iwharlinger at T., to whom defendants, occunUuii
|(o th amtimi (Did um(jc o/forintnlers aiul (•(trri<-t\'<
let T., paid the plaintiffs' claim : — Held, plea
Ikl, for not averring nut ice of the custom to the
plaintiffs. Twrana' cf fil. v. Jlai/ex I'f a/., 2 C.
3 C. 1'. 274.
Declaration for work and labour by carriers
h water. Plea, that a wharfinger, to whom
ipodswere delivered by plaintiffs for (lefendants,
»as agent of plaintiffs to receive payment, and
te tliey paid him accordingly :— Held, that
■om the course of dealing between such parties,
B set out in the evidence, the whartincer was
dch an went. Held, also, that (i/ti-r delivery
lif the goods without exacting freight, the wharf-
Wr still continued plaintiffs' agent to demand
W receive the freight till his authority was
[evoked. Torrance et al. v. Jlui/e^ et al., 3 C.
i Action for the value of 50 kegs of butter de-
Iveredhy plaintiii' to defendants to carry from
6. to T. Defendants relied upon a tender of
the butter to plaintiff, ivs preventing the recovery
of more than nominal damages. The tender
was made in wi-iting by defendants' solicitor, two
days before the A.s8i/es, offering for plaintiff's
acceptance the 50 kegs of butter, which had
been S(dd by plaintiff' to M., and for which M.
had recovered against the plaintiff, stating same
to be at T. at plaintiff's own risk : — Held, wholly
illusory, and not to partake of any of the inci-
dents of a legal tender, and that plaintiff was
eiititle(' ' . j-ecover the full value of the property.
linll V. a rand Tnmk li. W. Co., 20 C. P. 440.
V. Miscellaneous Cases.
In an action on the case against carriers, the
venue cannot be changed on the common affida-
vit. Ilaia V. Mi-Pher.'om, M. T. Vict.— P. C".
— .Jimes.
Action against several defendants charged as
common carriers, in case. A traverse of tlie de-
livery to the defendants of the; parcel, without
saying " or any or either of them : ' — Held, good.
Parke et at. v. DarU et al., (i Q. B. 411.
In an action on the case (by tb e plaintiffs in
ejectment) against defendants as common car-
riers, for not delivering within a reas(niable time
the record of Nisi Prius at the assize town : —
Held, that defendants could not put in issue the
plaintiffs' title to the land. /h.
Held, 1. That it is not illegal to deliver a
money letter to a private friend on his journey,
provide<l sue!) letter bo delivered by such friend
to the party whom it is addressed ; 2. That such
friend as a gratuitous bailee would be bound to
take as much care of the letter as he would have
of his own ; .3. Tbot if lost where he does take
such care he is not responsible. Timlallv, JIai/-
mml, 7 L. J. 243. -C. C. -Hughes.
It is an established rule of li^nglish law that
nedigence or breach of <luty cannot be set up as
a defence in action for the recovery of freight,
where the defendant has derived a partial benefit
under the contract, but defendant must bring a
cross action for damages. Hroint v. Murkle, 7
L. J. 2!)8.— I). C— Duggan.
Such rule must be taken to prevail in Division
Courts, notwithstanding the provisions of the
Division Courts Act enabling the judge to decivle
according to e(|uity ami good conscience, lb.
A different rule prevails in several states of
the neighbouring republic, an<l is highly conve-
vient as calculated to prevent multiplicity of
suits, ill.
CASE, ACTION ON.
iSee Action.
CASSETUR BILLA.
After judgment for defendant on demurrer to
a plea in abatement, and leave to amend on pay-
ment of costs, plaintiff cannot enter a cassetur
billa Ixifore the costs are paid. Commercial Bank
v. Jarniit, li O. S. 320.
ii
[i,:
'i
t
i
639
CERTIORARI.
640
CATTLE,
See Animals— Horse.
II.
CERTIORARI.
In Civil Cases.
1. To Remove from District and County
Courts, 639.
2. To Remove from Divmon CoiirtK, fi'tO.
3. Proceedings after Remoi'al, 641.
4. Costs, 643.
In Criminal Cases.
1. To hrbiff II]} Convictions, Dejmsilions,
and Orders.
(a) When it lie^, 643.
(b) Notice of Applicntiitn, 644
(c) Dejmsitions, 645.
(d) Other Cases, 645.
2. To hriwf up Indictments or Recogni-
zances, 646.
[See 33 Viet. c. 7, O.]
I. In Civil Cases.
1. To Remove from District and. County Courts.
A judgment for defendant cannot be removed
from a District Court into the Kind's Bench
under 19 Geo. III. c. 70. Gregory v. t lanne.gun,
2 0. S. 518.
A certiorari will not lie to an inferior court —
e. g. a District Court — aftor verdict, although
this court may be of opinion that evidence re-
jected should have been received. Tully v.
Glass, 3 0. S. 149.
A certiorari under the 19 Geo. III. c. 70, may
issue to remove a cause from a District Court
into the Queen's Bench. Baldunn v. Roddii, 3
0. S. 166.
The court set aside a certiorari, to remove pro-
ceedings from a District Court after judgment
and execution, and without' any application to
this court or a judge, laying any especial ground.
Douglas v. Hutchinson, 6 0. S. 341.
A certiorari must have been delivered to the
proper officer before the entry of tinal judgment,
or, after interlocutory judgment, before the jury
have been sworn on the assessment ; otlierwise
a procedendo will be ordered, even though the
record has been returned and filed in the court
above. Barnes v. Cox, 16 C. P. 236.
A. brought replevin in the County Court and
obtained a verdict, which was set aside because
title to land came in question. Nothing was
said in the rule about a new trial, but he served
another notice of trial, and the cause was made
a remanet. The surety being sued in this court
on the replevin bond for not prosecuting the suit
with effect, moved for a mandamus to compel
the County Court to proceed with the action, or
a certiorari to remove it, and in the meantime to
stay proceedings in this court ; but the court
refused to interfere. Semble, that a certiorari
imports jurisdiction in the inferior court, nnd
will not lie to determine whether it exists at
least not at the instance of the phuiitiH wh,
sued there. Meyers v. Baker, llariirmrin v
Meyers. 26 Q. B. 16.
The 23 Vict. c. 44, prohibits a oertinrati
unlp' i the debt or damages claimed excetMl .?i()o
Quu>re, therefore, whether replevin is within the
act. //'.
The mandamus was refused, among other rea-
sons, because the applicant had a remedy liy
appeal from the rule in the County Court settinl
aside the verdict. Ih. *
Where in replevin in a County Court the
plai;'*"ff shewed clearly that he liad ruaaon to
believe thivt the title to the land would Ije
brought in question |by defendant, a certiorari
was granted. Heaton v. Cornwall, 4 P \{ Wv.
— C. L. Chamb.— A. Wilson.
AVhere an actioii has been brought in the
County Court beyond its jurisdiction, or when
being rightly brought there tlie jurisdiction Jias
been determined by matter of pleading or evi-
dence, the whole proceedings . ram non
judice and void, and they cannot .emoveilliv
certiorari. O'Brien v. WeMi, 28 v. B. S94. '
Certiorari granted to remove a cause, defen-
dant having been arrested. Witinhr v, Pmnh
1 P. R. 357.— P. C— Richards.
A certiorari does not lie to remove an inter-
pleatler issue. If such a writ do iniprovidentiy
issue, the application should be to (juash the
certiorari, and not for a pnjcedendo. Juim v.
Harris, 6 L. J. 16. — C. L. Chanib. —Burns.
Sec. 57 of the County Ctnirts Act C. S. U. C.
c. 15, does not autliorize the removal of a case to I
the Court of Chancery, where such removal is |
desired on account of the existence of a suhs
quent mortgage upon the premises exceeding the I
jurisdiction of the court. Mitchell v. Mofl'm, i
L. J. N. S. 249.— Chy. Chamb. —Mowat,
2. To Remove from Division Court*.
Afiidavits under 13 & 14 Vict. c. ")3, s. 85, to
remove a cause from the Division Court, must
be intituled in the court in which the motion is
made, not in the Division Court. Himjth v.
Nicholls, 1 P. R. 355. — C. L. Chamb. —Roijinson.
Held, that in this case no sufficient groiimlfor
a removal was shewn. Ih.
A suit brought by an incorporated comity
will l)e removed, if it be shewn that ditiidt
questions of law will arise as to the powers con-
ferred by the act of incorporation. Cnkmf\
Cemetery Co. v. Burrowes, 3 L J. 47.— C. L
Chamb. — McLean.
A certioi'ari was granted under 13 & UVid
c. 53, whtjrc defendant resided in a part of tie
provini 8 far distant from tliv' division in whioii
tlie suit was commenced, and also on account of
a difficult question of law. A'kj/cw' v. I'Im-
hers, 3 L. J. 108.— C. L. Chanil).-Buni8.
A certiorari will not be granted after jniij-
ment and execution regularly issued and money
made and paid over, although a new trial my
have been granted subsequently in the DinM
Court. McKemie \ "
Chamb. — Robinson.
Keene, 5 L J. 22:),-C.L
640
641
CERTIORARI.
642
of ;i sulise-
cxcceiling the I
Morl'm, i 1
;)\vat.
53, s. 85, to
Cimrt, must
the motiiiii a
Smiilh V.
. — Roliiiison.
Biit groiiiiil fur
ited comity
that (litticult
e powers con-
(jilarnfl
il.-t I
13 & 14 Viol
a part of the
iion in wliiitk
on account of
ijllll V. ''*"*■
-Bums.
_ after jnilj-
«1 and money
(ew trial nuy
the i>in«'<*
,'2*r>.-C.l'
An interpleader issue in a Division Court held
not within sec. 51 of the Division Courts Act,
and 80 not removable by certiorari. liuxneU v.
W'WWams, 8 h. J. 277.— 0. L. Chamb.— Richards.
Held, that the Imperial Statute 43 Eliz. c. .5,
plies to cases in Division Courts, and a certio-
rari was held too late where a jury was empan-
nelled by the judge, and a verdict rendered be-
fore delivery of certiorari to the judge. Black
V. llfiH SL- J- 277.— C. L. Chamb. -Richards.
Semble, the act in spirit applies to cases where
ijlaintiff's witnesses are sworn, although no jury
is called. /''•
After the hearing of a cause has been i)ro-
ceeded with before the judge, though no jury is
««nru it is too late to serve a writ of certiorari.
ZU^ier V. Hiithk, 2 L. J. N. S. 73. -C. L.
Chamb. -A. Wilson.
A cause was heard and evidence taken, and
judgment was postponed to be given at the
clerk's office on a future day. Afterwards,
and before that day, a writ of certiorari was
8er\ed ; -Held, too late, and a procedendo was
swanled. Ih.
K plaintifif is not entitled to remove his own
ulaint from a Division Court. Pnulhomme v.
La:im, 3V. R. 355.— C. L. Chamb.— Morrison.
Held, that a jud je of a Division Court having
cipresaed an erroneous opinion in a case, is no
■jround for removal. Holmes v. Jieeve, 5 P. R.
k-C. L. Chandj. --Richards.
Wliere a defendant knows all the facts before
tlie trial, but, nevertheless, argues the case and
obtains an opinion from the judge, the case should
not be removed, even though Jhe Judge desire
it Ik
3. Proceed'mys after Removal.
[See now 33 Vict. c. 7, s. 9, O.]
Tlie court will not direct how proceedings are
t til be carried on after the removal of a cause from
I a District Court to the Queen's Bench. Coppiny
\\Mcbundl,'oO. S. 311.
Where cases have l)een brought up from the
^Division Court of an ' outer county, nito one of
Ithe superior courts at Toronto, by certiorari,
Itbe papers should be tiled in the crown office at
IToronto ; but the venue need not be laid in the
Icottiity of York. VhambevK v. Cli ambers, 3 L.
|J. 'iOa.^;. L Chamb. — Draper.
Where a cause is removed from the County
Court after issue joined : Semble, that the plain-
tiff should declare de novo. In this caso the
|laintitf did so declare, and signed judgment,
Jhough defendants had not appeared. Defend -
[lilts moved to set aside the judgment, but made
^0 objection for the want of appearance : — Held,
Ihat they were precluded from afterwards ob-
icting on that point, ffankey v. Grand Trunk
' ir. Co., 17 Q. B. 472.
A case being at issue in the County Court, was
removed into the Queen's Bench by certiorari,
lad the plaiutift' proceeded upon the pleadings
« they stood, fihng no new declaration, and
mteriug no appearance above : — Held, that de-
jendants having gone to trial without objection,
tould not object after verdict. Fulton v. Oram!
rmk R. W. Co., 17 Q. B. 428.
41
Where a certiorari is regularly issued for the
removal of a cause from the Division Court after
new trial granted, a previous alleged understand-
ing between the parties that the cause should be
tried in the Division Court is no ground for
interfering with the certiorari. Help v. Lvca^^,
8 L. J. 184.— C. L. Chamb.— Hagarty.
Where the plaintiff, pending an issue in law,
removed the case by certiorari to the Queen's
Bench, and defendant refused to enter an ap-
pearance after notice, an order to compel him to
do so, or to assist the plaintiil' to proceed, was
refused. Quwre, as to the plaintiff's right to
remove his own cause under such circumstances.
Dennisonv. Knox, 3 P. R. 150.— C. L. Chamb.—
Draper.
A judge, having all the material facts before
him, has a right to grant a certiorari and impose
such terms as he may think fit, but not to de-
prive the plaintiff of his legal rights in regard to
the position of the cause. When a defendant
removes a cause, the plaintiff has the option to
proceed or not, but if the pleadings be removed
and stand as pleadings in the Superior Court,
the defendant will be in a position to compel the
plaintiff to proceed. The plaintiff must declare
de novo. A judge has no power to change the
venue by the order granting the writ of certio-
rari ; it should be a substantive motion, when
the plaintiff" has shewn where ho will lay hia
venue after the cause has been removed. Per J.
Wilson, J. , dissenting from the judgment of the
court, when a cause is removed from a County
(Jourt, the proceedings there should stand and
be the proceedings in the court to which the cause
is removed. Patterson v. Smith, 14 C. P. 525.
Held, 1. That although a plaintiff may, after
removal of his plaint from a Division Court, de-
clare in the superior court in a different form of
action, he cannot declare for a different cause of
action ; 2. That if he vary his cause of action,
the declaration may be set aside with costs ; 3.
That where plaintiff sued for injuries done to a
HUy by defendant's bull, and afterwards declared
in the superior court for entry by defendant on
plaintiff's land with the bull, and tearing up the
soil, &c. , the cause of action was varied. Mason
V. Moriian,^Y. R. 325.— C. L. Chamb. —Draper.
A claim in the Division Court for $40, for de-
tention of plaintiff liy defendants on a journey
from Toronto to Detroit and back, (the journey
occurring between 28th Nov. , when he started
from Toronto, and 3rd Dec, when he got back,)
was removed by certiorari into the Queen's
Bench, where the declaration was in contract
for $500 for delaying the plaintiff in his journey,
in not starting the train at the time named. An
application to set aside the declaration was
refuseil, the two claims being held sufficiently
similar, considering the want of technicality in
Division Court ^ileadings. Hunter v. Grand
Trunk R. W. Co., 6 P. R. 67.— C L. Chamb.-
Dalton, C. C. <fc P.
An application made below after the removal
to set aside the final judgment entered, because
the claim was unliquidated, had been refused,
because, having complied with the certiorari, the
judge had no longer jurisdiction in the cause : — •
Held, that the subject matter of the suit being
within the jurisdiction of the judge below, his
judgment could not be reviewed on the proceed-
ing before this court; but, semble, that if H
^
: (
i:. I1fi
d4S
CERTIORARI.
644
1; '»
li f
appeared on the face of the record that the judg-
ment was final when it ought to have been inter-
locutory, a writ of error would lie. Semble,
that any proceedings in the court below after
removal of the cause into this court, could not
be sustained : — Held, also, that after the return
of the record, &c. , under the procedendo, to the
court below, the judge there had power to set
aside the judgment and let defendant in, upon
terms, to plead. Barnes et al. v. Car, IG C. P.
236.
4. Costa.
Where the judgment of a Court of Requests
had been removed into this court by certiorari,
ahd set aside upon defendant's application, with-
out any interference by plaintiff, the court re-
fused an attachment against hi in for non-payment
of costs of removing the proceedings. Cramer
V. Nelles, Tay. 36.
An order for a certiorari to bring up a case
into a superior court, entitles defendant to the
full costs of that court, if he succeeds in the
action, without any certificate of the judge who
tries the cause. Costs for superfluous or irre-
levant matter introduced into attidavits will not
b« allowed, and in extreme cases the judge will
disallow costs for the whole affidavit. Corky v,
Rohlm, 5 L. J. 225. -C. L. Chamb.— Richards.
Where the case was removed from tlie Division
Court into the Common Pleas by defendant, who
obtained a verdict, and the order for the certio-
rari was silent as to the costs, defendant, on
entering judgment, was not allowed the costs of
removal. Kerr v. Cornell, 1 L. J. N. S. 320. —
C. L. Chamb. — Morrison.
11. In Criminal Case,-*.
1. To bring up Convictions, Depositions and
Orders.
(a) When it lies.
A certiorari lies to remove orders of sessions
relating to the expenditure of the district rates
and assessments, at the instance of the attorney-
general, without notice. Rex v. Justices of New-
castle, Dra. 114.
Defendant was convicted under 8 Vict " ' "
for working on Sunday at his ordinary calling.
He appealed to the Quarter Sessions, where tlie
question was tried before a jury and the con-
viction affirmed. The proceedings having been
removed by certiorari to this court :- -Held, that
a certiorari would lie, not to examine the find-
ing of the jury on the facts, but to determine
whether the justices had exceeded their juris-
diction. Hespeler v. Shaw, 16 Q. B. 104.
Where it is shewn to a judge in cliambers that
there is a reasonable doubt as to the legality of
a conviction under the Master and Servant's Act,
he will order a certiorari for the removal of the
conviction, notwithstanding the confirmation of
it by the sessions on appeal. In re SulUmn, 8
L. J. 276.— C. L. Chamb.— Richards.
A. engaged B. and his hired man C. to build
a honse for him, and agreed to pay B. his ordi-
nary wages, and $1 per diem for C. A. making
default, was convicted before a magistrate un-
der the Masters and Servants Act, and ordered
to p.ay B. .fl5.50 for C. 's services. A. appealed
but the appeal was adjourned to anotlicr sessicn
when the conviction was quashe<l. B, then
obtained a summons to shew cause why a certin
rari should not issue to return the order (masi
ing the conviction, &c., in the Queen's Kencli
Held, that the applicant had a riglit to the i.xr.
iorari ; but — Senible, that the procetdiiu's tart
instate this conviction were unnecessary" /;,
Doyle and MvCumher, 4 P. R. 32, -C. L. Chauil'
— Draper.
Where a defendant, having been convicted dj
evading toll, appealed to the Quiirtor Sessidns
where he was tried before a jury and ae(iuitteil
this court refused a certiorari to remove the lim.
ceedings, the effect of which would ],e to imt
him a second time upon his trial. StuivJ v
Blackburn, 25 Q. B. 16.
Semble, that although the Temperance \ct of i
18(;4, 27 & 28 Vict. o. 18, s. 36, takes away the
right of certiorari and appeal, a certiorari mav ;
be had when there is an aosence of jiirisdictiiiii
in the convicting justice, or a conviction on its
face defective in substance, but not otherwise
In re Watts and In re Emery, 5 P. R, 26". -c
L. Chamb. — Gwyime.
Where a conviction affirmed on appeal to the
sessions, was brought up by certiorari, contrary
to the 32 & 33 Vict. c. 31, s. 71, D. , as amended by
33 Vict. c. 27, s. 2, which enacts that in such case
no certiorari shall issue :^Hel(l, tliat tlie court
could not quasli the conviction (the case heiu.-
one in which the magistrate liad jurisdiction'
tliough it was clearly bad, and no motion had
been made to quash the certioraii. Hfifim v
Johnson et al, 30 Q. B. 42.3.
A conviction having been brought up hy cer-
tiorari, when, under the 32 & 33 \kt. c. 31, D.,
no sncli writ could issue : Per Itichards, C. J.'
and Morrison, J,, it could not be quashed, but
the court could only discliarge tlie defendant
Semble, per Wilson, J., that being before the
court it might be quashed. Regina v. Lntcm
30 Q. B. 509.
(b) Notice of Application.
Notice of application for a certiorari must 1*
eiveii to the convicting magistrate, and the want
ot ic is good cause against a rule nisi to quash tiie
conviction. Regina v. Petermiin, '.',') Q, I!, 'ilft'.
Qutere, whether the certiorari in this casewas
properly issued without the notice, &c., required
by 13 Geo. II, c. 18, though tlic object was to
obtain the prisoner's discharge, not to quash the
conviction. Regina v. Munro, 24 Q, B, 44.
Notice of application for a certiorari to rf niuve
a conviction confirmed by tlic Quarter Sessiuns,
must be given to the chaimiaii and his assii-
ciates, or any two of them, by wlioin tiie urder
affirming such conviction was ina<le ; ami where
a certiorari had been obtained without sucii
notice, and a rule nisi obtained to quash saih
conviction and order, tlie certiorari was set aside,
Regina v. Ellis, 25 Q. B. 324
Held, that, under the ciicumstances of tiui
case, no notice to the chairman of the sessions of
the defendant's intention to move f or a certioran
was necessary. Regina v. Cacweli, 33 Q. B.330,
645
CERTIORARI.
646
Semble, that in a notice under 13 Geo. II. c.
18 of iippliC'"**'"" ^ remove a, conviction the
mimds of objection to such conviction need not
&tea. In >■<■ Taniory. Dary, 1 P. II. 340.-
C. L Charnb.— llobmson.
Where the application for a certioruri is made
iiuthe prosecutor, no notice to tlie juatiees is
necessary. H<"J>»a v. Muvray, 27 Q. B. 134.
(c) Deponitions.
Oufere, as to the power of a judge in chambers,
oil an application of a pri8t)ner for his discliargc
m a bail warrant, to remand him, and in aid of
the prosecution to order a certiorari to bring up
the depositions, &c. Jn re Varmkhad, 10 L. J.
325.— C. L- Chamb.— Draper, Morrison.
Per Draper, V. J.— The certiorari to bring up
the (leiiositions cannot properly be issued in
vination, returnable before a judge in chambers.
hnBiirley, 1 L. J. N. S. 34. -0. L. Chamb.
Wierc a magistrate, on a summary trial, took
no written depositions, but the conviction re-
tamed to a certiorari set out the evidence : —
Held, in the absence of anytliing to shew that
there' was any other or different evidence given,
that the return must be taken to be a true and full
statement. Senible, that had there been proof
nf any other or different evidence given, the
magistrate might have been re(iuire<l to return
it or to amend the conviction 1»y setting it out.
ifi/iiw V. Flaiiniijaii, 32 Q. B. 593.
The defendant having been convicted for selling
E hnuor without a license, the depositions returned
to the oonrt by the convicting magistrate under a
certiorari shewed that there was no evidence of
a hwnse produced before him, while the aftidavits
filed on the application to quash stated that the
party had a license in fact, and produceil evi-
l deuce of it before the magistrate, who, moreover,
i himself swore that he believed a license wivs pro-
I (luced, hut it was either not proved or given in
1 eridence -.—Held, that the return to the certio-
\ rari was conclusive, and that the court could not
-oliehind it. Jieijina v. ,Strnclian, 20 C. P. 182.
Scmble, ;hat if material evidence be given be-
fore a magistrate, but unintentionjilly omitted
ifrom such a return, an amendment may Ije al-
llowed to supply it, but only with the concur-
Itence of the parties, and of the witness liy
|»honi the deposition was signed, in the correet-
Iness of the additions but it cannot be supplied
thy affidavit. lieijhia v. McXdiivy, 5 P. 11. 438.
|-C. L Chamb.— A. Wilson.
Where a certiorari simply requires a return
|of the endence, the magistrate need not return
Jthe connction or a copy of it. Jieijiiiav. Mc-
lAonfy, 5 P. R. 438.— C. L. Chamb. -A. Wilson.
(d) Other Cases-
On application for a certiorari to remove con-
riction of one J, B., for selling liquor without
Jicense ;— Held, 1. That the rule nisi was pro-
lerly intituled " In the matter of J. B. ;" and
kt it need not state into which court the con-
action wac to be removed, this being sutiicientlv
kwn by the intituling it in the court iu which
demotion was made. In re Barrett, 28 Q. B. 5&9.
In shewing cause to the rule nisi to quash the
conviction, it was objected that the recognizance
was irregular, being dated before the conviction,
but— Held, that this was ground only for a mo-
tion to quash the certiorari, or the allowance of
it. Begina v. Ilorjfjnrd, 30 Q. B. 152.
Held, that the defendant appearing on the
evidence returned to have bonii fide asserted a
claim to the land which he had enclosed, it was
not a proper case for the adjudication of the
mayor of B., under sees. 72 or 185 of 12 Vict,
c. 82 ; and that consequently the mayor's sum-
mary conviction of the defendant, under that
act, might be quashed by certiorari. Begina v.
Tai/lor, 8 Q. B. 257.
Owing to a mistake in the crown office, a rule
to return the certiorari, and afterwards a rule
for an attachment issued, although a return had
in fact been filed. More than six months having
thus expired since the conviction, the court were
asked to allow process to issue against the justice
for the illegal conviction as of a previous term,
but the application was refused. Quajre, whether
the six months could be held to run only from
the time of quashing the conviction. In re Joke
and Amjlin, 19 Q. B. 197.
The only evidence offered in proof of an ob-
jection that the magistrate before whom the
recognizance in this case had been taken, was
not properly qualified, was a certificate, purport-
ing to be under the hand and seal of the clerk
of the peace, that he did not find in his office
any (|ualification tiled by the magistrate : — Held,
insutttcient. Begina v. White, 21 C. P. 354.
2. To bring up Indictments or Recognizances.
An indictment cannot be removed by certio-
rari from the court of General Quarter Sessions
to the Queen's Bench after verdict, even by con-
sent of the parties. Begina v. Lafferty, 9 Q.
B. 300.
Nor from the Assizes after judgment pro-
nounced, for the purpose of applying for a new
trial. Bfi/ina v. Smith, 10 Q. B. 99 ; Begina v.
Crabbe, 11 Q. B. 447.
After an acquittal in a criminal case, the court
refused a certiorari to remove the indictment
with a view of applying for a new trial ; or to stay
the entry of ju(lgment, so that a new indictment
might be preferred and tried without prejudice.
Begina v. Whittier, 12 Q. B. 214.
After acquittal for nuisance a motion was made
for a certiorari to remove the indictment, with a
view to new trial, no ground being sheM'u by
affidavit ; and the new trial was moved for on
the same day, being the fourth day of term : —
Held, that the certiorari, after acquittal, could
not issue as of course ; but that if it could, it
would have been unnecessary to move for a new
trial within the first four days of term. Begina
v. Ozotvski, 14 Q. B. 591.
A defendant applying fori, certiorari to remove
an indictment from the Sessions must shew that
it is probable the case will not be fairly or
satisfactorily tried in the court below, and if
difficulties on points of law form the ground of
application, they umst be specifically stated. In
re Kelktt et al, and Porter, 2 P. K, 102.— P. C.
— Richards.
f
:!iS
A'''¥
'M
\ '-n
I' 'i'rl
:i'i-
h I i '
- i)i||)«i:f.T
647
CHAMPERTY AND MAINTENANCE.
m
il i;
4li
The proper proceeding to reverse a judgment
of the court of Quarter Sessions on an indictment
is by writ of error, not ])y certiorari and habeas
corpus. Regina v. Pomdl, 21 Q. B. 215.
Held, that a recognizance to appear for trial
on a charge of perjury at the Sessions was wrong,
as the court had no jurisdiction in perjury, but
a certiorari to remove it was refused, as the time
for the appearance of the party had gone by.
Regina v. Cuvrie, 31 Q. B. 582.
CESTUI QUE TRUST.
I. Oenerally — Svr. Tkust and Tttu.sTEE.
II. Parties to Bill in Equity.
1. Foredonure — Sec Mortgaoe.
2. Other Suits— See Pleading in Equity.
CHALLENGE OF .JURY.
See Criminal Law.
CHAMBERS, JUDGES'.
Sec Practice at Law — Practice in Equity.
CHAMPERTY AND MAINTENANCE.
I. Generally, 647.
II. Bracerv, or Buying of Titles, 64!).
1. Generally.
The plaintiffs having a judgment against B. &
P. , agreed with defendant that if such judgment,
or any portion of it, should be realized from pro-
perty to be pointed out by him, he, defendant,
should have one-third of the amount so realized ;
"all costs that may be incurred in endeavouring
to make the money to be payable by him if suc-
cessful, and the amount of such costs to be the
first charge on any proceeds ; the net balance to
be divided. " Goods pointed out by defendant
having been seized, were found, on an inter-
pleader issue, to be the claimant's. The plain-
tiffs thereupon sued defendant on the agreement,
for their costs of defence in the interpleader,
&c. : — Held, that if such agreement extended to
these costs, it was illegal as being contrary to
public policy, if not within the definition of
champerty ; and if it did not so extend the
plaintiffs could not recover. Kerr et al. v.
Brunton, 24 Q. B. 390.
The plaintiffs having filed a bill for specific per-
formance of a contract by one R. to sell a certain
mine to them, it was agreed between plaintiffs
and T., one of the now defendants, pending
such suit, that certain persons should purchase
said mine from the plaintiffs ; that they should
deposit the money required for the security for
costs, which the plaintiffs had been ordered to
give in said suit, and pay all costs incurred or to
be incurred therein, or any other suit brought or
def euded by them respecting said mine, and pay
all moneys due for the purchase tliereof, ami
allot to each of the plaintiffs a tweiitiuth slian.
therein, if they shoiild sucjeed in gcttiiii' a titk
through the suit ; and that they would settle all
claims of Messrs. E. & G. against the plaintiffii
The plaintiffs having sued defendants nn theJM
mentioned covenant : — Held, upon iit'inurrcrt.-.
a plea setting out the transaction, that tC
agreement was void for champerty ami mainteii.
ance, and they therefore could not recover Cnn
et nl. V. Tannahill et al., 30 Q. B. 217,
The plaintiffs replied to the plea on equitalk
grounds, that in the Chancery suit defciidanti
were added as plaintiffs, and defendants therein
in their answer set up against them that this
agreement was void for champerty, which tliev
denied, and on the hearing the cause was com'
promised, and a decree made by agreement liv
which defendants were allotted a certain portioi
of the land, for which they received a convey
ance, and the agreement declared on was treated i
and acted upon by all parties and treated by the
court as valid. Remarks by Wilson, J., as to
the effect of this replication. Il>.
The plantiffs having amended theirdeclaratioa i
it was held on demurrer to be still ))ad, for the
promise as stated was not based on the transac-
tions subsequent to the agreement which had
been held void for champerty, but that agree '
ment was alleged to be part of the consideration
and being bad avoided the whole contract ,V ('
31 Q. B. 201.
Held, also, that the denial by those ilefendants, I
in their answer in Chancery, that the agreement
was illegal, could not estop them from asscrtiiii;
such illegality here. Ik '
In ejectment the plaintiff claimed under a i
sealed instrument executed in his favour hy one
M., and witnessing that in consideration of prior
indebtedness for professional services, and to
secure the plaintiff for future services of the same
kind ; and of £25 already paid and advanced liv
plaintiff to him, &c. , he (M.) covenanted, granteii,
and agreeil that he would stand seised and im-
sessed of the land in question to the use nf
plaintiff, his heirs, and assigns, by way of charge,
security, and mortgage on the land for sai.l
money and costs ; and when plaiiititf's costs were
taxed, he was to be at liberty to hold the in- I
strument as and by way of a charge, mortgage
and security upon the land for the amount sot"
be ascertained, or M. would, and he covenanted
that he or his heirs would, on demand, exeoute
a good and sufficient mortgage in law, with
liar of dower if necessary, and usual covenants,
&c. Semble, that the instrument was not void
for champerty or maintenance. Miller v. Stitl
etal,n 0. P. 559.
It is not a champertous transaction, that an
association of persons with whom the petitioner
in an election petition was politically allied.
agreed to pay the costs of the petition. Even
if the agreement were champertous, that Mould
not be a sufficient reason to stay the proceedings
on the petition. In re North Simcot Elnl'm
Petition, Mwanh v. Cook, 10 L J. N. S. 232.-
E. C— Richards.
Where an assignment was executed by a puim
incumbrancer to another, for the purpose of lilinj
a bill to impeach a prior mortgage for fraud, ind
which bill was accordingly filed ; the couit
m
649
CHAMPERTY AND MAINTENANCE.
650
|e covenaiitel
land, execute
liu law, with
lal covenants,
I was not void
IV(7/frv.M
Itioii, thatM
Ihe petitioner
licauy allied-
litioii. Kven
thatwoulil
6 proceeding!
ime Ektm
In. S. 232.-
1 by a puisne
pose of filing
Dr fraud, and
the court.
without determining what micht have been the
result of a suit brought 8iinj)ly to redeem, or
one instituted by the puisne incumbrancer liim-
jelf dismissed the bill with costs, notwithstand-
ine'the right to redeem formed one alternative
of the prayer, it being evident that the alleged
fraud was the ground upon which the plaintiff
nrincipally relied, and the agreement between
the parties savouriuK strongly of champerty and
maintenance. Muchnllv.Jidnh, 10 ( hy. 2.%.
An heir-at-law being supposed to have a right
to call trustees to account and to impeach sales
made by them, such supposed right being con-
sidered very doubtful and being one which could
only be reached through a suit in this court, he,
being himself unwilling to litigate the question,
Msigned his interest to a third person ; and, by
the agreement, the consideration for such assign-
ment was only to be paid in case of success : —
Held that a merely speculative purchase of this
kind savouring of maintenance or champerty,
could not be enforced in equity. Little, v. Ham-
km, 19 Chy. '-'07.
The plaintiff admitted himself to have V)een a
mere speculative purchaser, buying for less than
one-sixtii of its value a piece of land which he
knew to be in the occupation of another person
who claimed to be the owner, from a vendor
whom he sought out, and who did not pretend
to be the owner of the subject of the purchase,
whom the plaintiflF agreed to indemnify against
the costs of the litigation which both anticipa-
ted, and who was to share in the fruits of the
contemplated law suit :— Held that this contract
lavoured of maintenance and champerty, ivnd
was not that honest boiiA. fide purchase which
alone the registry law was intei; led to protect.
It'ijfe v. Setterington, 19 Chy. 512.
II. Bracerv, oe Buying of Titles.
[By the 33 Hen. VIIL e. 9, nnd by the. common
. fair, before 14 A 15 Vict. c. 7, no person could buy
• otsdl any pretended rujht or titk to land unlem
I hf, or those under whom he claimed, had been in
i jmiesiion for a year, or any title to land of which
i mother person, not claiming under or in privity
I with the buyer or seller, was at the time of such
iiakor purchase in actual possession, claiming the
tf<e; andtheact imposed fM a forfeiture the full
[.take of the lands, to be recovered in a qui tarn
r iirt'mn. The 32 Hen. VII I. was virtually repealed,
i at all events where an actual legal right of entry
lmils,bylhtl4d'15 Vict. c. 7, s. 5,nowC. S. U.
IC. (. 90, 8. 5, which enacts that a contingent, an
itxeaitory, and future interest, and a possibility
|cou/;W with an interest in any land, also a right
M entry, whether immediate or future, and whether
tveded or contingent, into or upon any land, may
I if disposed of by deed. ]
The mortgagor being in possession at the time
lof a conveyance in fee by the mortgagee, is no
|objection to the conveyance, the doctrine of dis-
leiiin not' applying as between the mortgagor
nd mortgagee. Doe d. Dunlop v. McNab, 5 Q.
" "9 ; Dot d. Dunlap v. McDougal, Tay. 464.
I A continuance in possession of land, under an
Itnoneous impression that it was their own, of
intruders, as against the King, after grant made,
•ras not a disseisin of the grantee. Doe d. West
"•. Homrd. 5 0. ,■- 462.
Hold, that while two persons are in diflFerence
about their boundary, and shew by their conduct
that they are uncertain about the true line, but
agree with each other to have it ascertained, and
to hold accordingly, either party may convey to
a third person so as to enable the alienee to hold
according to the true lM)undary, though there
may )>e some of his land in possession of the
other, in consequence of the line Injtween them
having been mistaken. Macaulay, J., dubitante.
Doe d. Bechtt V. Nightingalf, 5 Q. B. 518.
To bring the giving of a note in pjvyment of
land within the .32 Hen. VIII. c. 0, care must
be had to allege enough to meet the ))r()vi8ion8
of the statute. Where, therefore, the defendant
merely averred that the plaintiff was not, for a
year next before the bargain, " in receipt of the
rents and profits," without saying that he was
not "in possession of the land, or of the rever-
sion or remainder thereof :" — Held, plea bad.
NicolU V. Madill, 6 Q. B. 415.
A mere verbal bargain for the sale of land
would not subject a person to the penalty under
.32 Hen. VIII. c. 9, for buying a pretended title.
Aubrey (|. t. v. Smith, 7 Q. B. 213.
A person could not be convicted merely on his
own admission, that he had taken a deed from a
party out of possession ; some evidence aliunde
must be adduced of the existence of such a
deed. / /*.
A tenant holding over is in no case a disseisor.
Doe Charles v. Cotton, 8 Q. B. .31.3.
A deed by the reversioner was good, though
another person, holding under the life estate of
the tenant by the curtesy, was in actual posses-
sion. Doe liurnham v. Bowyer, 8 Q. B. 607.
An action will not lie for knowingly prosecu-
ting a false claim before the heir and devisee
commission, to the plaintifif's injury and with
knowledge of his claim. One M., in 1839, hav-
ing a right of purchase of a lot from the crown,
mortgaged to l)eB. to secure payment of a sum
by instalments, the last of which would fall due
in 1849. Soon after this mortgage, M. gave to
B. a bond for a deed, on certain conditions to be
fulfilled by B., who took possession. In 1860,
the plaintiff went in uncler an agreement for
purchase from B., who had not fulfilled the con-
ditions of his bond. In 1851, the defendant
took an assignment of DeB. 's mortgage, and in
the same year he claimed before the heir and
devisee commission, making the usual affidavit
of ignorance of any adverse claim, and obtained
a patent. The plaintiff thereupon brought an
action on the case, alleging in the first and second
counts that the defendant, maliciously contriving
and intending to injure him, represented himself
as assignee of the original nominee of the crown
and claimed as such before the commission ; and
in order to defraud the plaintiff, and not having
himself any well fountfed claim, and knowing
the plaintiff's claim, made atfidavit that he was
not awa'e of any adverse claim, and procured
his own claim to be allowed— whereby, &c. The
third and fourth counts, founded on the statute
32 Hen. VIIL c. 9, were for buying M. 's pre-
tended right, the defendant being in possession
claiming title : — Held, that on the evidence the
allegations were not supported ; and that admit-
ing them all to be true, no ground of action would
be shewn. Shields v. DeSlaqukre, 12 Q. B. 386.
::■ ' '.If ■)(•;.»!'
651
CHEQUE.
652
f
' I '■-'.
i'l i
•||;]
A., the owner of lanrls, convoyed to the plain-
tiff by deed, wliich was never recorded ; the
plaintiff conveyed to others, who registered tlieir
deeds ; the defendant, A. 's son and heir-at-law,
8nbso(iuently relcaseil to iS. , which was also re-
corded ; the defendant ha<l never been in pos-
session, but the persons to whom the plaintiff
conveyed were. Tlie plaintiff sued defendant
for the i)enalty under 32 Hen. VIII. c. 9, for
selling a pretended right : -Held, that tlie 14 &
15 Vict, c. 7, would not apply in ticfendant's
favour, for that only allows the sale of a right
of entry, and as his father's deed was bindnig
npon him, he had no such right; but,--Hehl,
also, affirming Major <j. t. c. Reynolds, H. T.
Vict. , that by the registry of the deed to S. the
conveyance to the plaintiff became fraudulent in
its inception, and therefore he could not recover.
Semble, that the effect of the 14 k 15 Vict. c. 7,
is to repeal the 32 Hen. VIII., and not merely
to permit the sale of a right of e;itry subject to
the penalty, /inhi/ q. t. v. mumn, 13 Q. B. 531.
Held, in ejectment, that the defendant being
in possession of the land at the date of the
deed to the plaintiff, Ifith March, 1842, nothing
passed to the plaintiff by that deed, as the
statute authorizing the conveyance of a right of
entry was not then passed. Blthop of Toronto
V. Cantwell, 12 C. P. (J07.
See Little v. Hmrkin», 19 Chy. 207, p. (>49 ;
Wigk v. Selteringtoii, 19 Chy. 512, p. 049.
For other decisions under the 32 Hen. VIII.
and the law as it stood before the 14 & 15 Vict. c.
7, see I'lmly tj. t. v. Ihjikr, Tay. 23l> ; Ihw Dixon
V. Grant, 3 0. S. 511 ; Major q. t. v. Betjnolds, H.
T. 6 Vict. ; May q. t. v. DHtrick, 5 O. S. 77 ;
McKenziey. Miller, 6 O. S. 459; Deed. Dunn v.
McLean, 1 Q. B. 151 ; Do<'d. Deftrickv. Dettrkk,
2 Q. B. 153 ; Doe d. McMillan v. Brock, 2 Q. B.
270 ; Benm q. t. v. Ekl/lie, 2 Q. B. 28(5 ; Beaslcy q.
t. V. Cahill, 2 Q. B. 320 ; Baldwin q. t. v. Mender-
mi, 2 Q. B. 388, 3 Q. B. 287, 4 Q. B. 361 ; Doe
d. Peterson v. Cronk, 5 Q. B. 135 ; Doe d. Bon-
ier V. Savaqe, 5 Q. B. 223 ; Doe d. Clark v. Mc-
Imm, 6 Q. B. 28 ; Doe d. Moffatt v. Scratch, 5
Q. B. 351 ; Doe d. Simpgon v. Milloy, 6 Q. B.
302 ; NicolU v. Madill, 6 Q. B. 415 ; Doe d.
McKenzie v. Fairman, 7 Q. B. 41 1 ; Ross q. t. v.
Meyers, 9 Q. B. 284 ; Doe Spaj,ord v. Breacken-
ridge, 1 C. P. 492 ; Fraser v. Fraser, 14 C. P.
70 ; Smith v. HaU, 25 Q. B. 554.
CHANCERY.
I. Court ov—Sec Court of Chancerv.
"ll. Sale — See Sale of Laiid by Order of the
Court.
CHARACTER.
I. Defamation of — See Defamahon.
II. Evidence of — See Evidence.
Ill, REPRE.SENTATIONS AS TO — See FhAUD AND
MiSREFRESBNTATION.
CHARGING IN EXECUTION.
See Prisoner.
CHARITY.
1. Conveyances to— Sw Mortmain.
II. Devi.seh or Bequ£st.s to -.SV. \V||,|,.
To a bill either to establish or imiieftcb tt
legality of charitable bequests, the ntUmJ
general may \to made a party. Darkhou \.
Boomer, \rt Chy. I. See, also Low-/ v. Wilmnii'
2 Chy. Chamb. 87.— Estcn. "'
A voluntary bond to a eharit>, purportinc t„
bind the obligor and his heirs, and payahle si,
months after the obligor's death, canndt l.f in
forced against the obligor's lands. A iiih-i-M,t, ,'
Paine, 14 Chy. 110. "*'
A judgment having been recovered against the
obligor's executors on a voluntary bondin favour
of a charity, and execution having buen issued
thereon against his lands, the court, at the suit
of the heirs, restrained further proceeding on
such execution. lb. *
CHARTER.
1. Corporate — See Corporation.s.
CHARTER PARTY.
See Ship.
CHATTEL MORTGAGE.
I. Generally— /See Bills of Salk and Chat-
tel Mortgages.
II. Insurable Intere.st of Mokxc!agee-a'«
Insurance.
CHATTELS.
I. Gift op— See Gift.
IL Assignment of— -SVe Bills of Sale asb
Chattel Mortgages.
III. Conversion or— See Trover.
IV. Mortgage of— See Bills of Sale a.\d
Chattel Morrjaoes.
V. Specific Perfomance ok Agreement Gov
CERNiNG — See Specific Perfoemame.
CHEQUE.
I. Generally— ;S'ee Banks.
II. Payment by — See Payment.
III. Usurious Transactions— -Sfc Uscrv,
The production of a cheque is not even primi
facie evidence of money lent by the drawer.
Foster v. Fraser, M. T. 4 Vict.
A cheque in this country may be post-dated,
though in England it is prohibited by the sttnp
acts. Where such cheque is payable on demtiia
693
CHOSE IN ACTION.
604
no (l»y* o( grace arc allowed. Where on the
same ilaj' t'"** ^^^ cheque was (liBhonoured, de-
femlant paid £1^0 to the holder on account of it :
Semble, sufficient to excuse notice of non-pay-
ment, though he declared that ho was then igno-
rant of 8UcTi dishonour. In this case, however,
no notice was necessary, the banker being sol-
vent;— Held, under the evidence, that the pleas
setting up want of consideration, and denying
tiliintiffs' property in the checiue, were not
{'roved. It <>"''''' «'• V. Stepimm,,,, 1(5 Q. B. 410.
To an action on a cheque by the liearer against
the maker, defendant jueaded that the checjue
wasgivt'ii to one B., who had always been the
la«ftl holder thereof, and that the plaintiffs
held the same as his agents ; that it was given
for bills of exchange drawn by B. on H. & Co.,
and since overdue and dishonoured, whereof B.
iiad notice ; that the checjue was held by plain-
tiffs as B's agents, and B. was liable to pay de-
fendant, as drawer of said bills, the amount of
said cheque, and defendant offered to set off the
saiue I— Held, on demurrer, plea bad, for not
aUewng that the bills were dishonoured before
the commencement of this suit. Wood rt al. v.
tskmion, 16 Q. B. 527.
CHILD.
I, Geskrally— -See Infant.
II, Illeoitimacy— S'ee Bastard.
III. Undue Inflvence— iSec Fraud and Mis-
KEPRESENTATION.
IV, Contract of Hxrino — <S'ce Master and
Servant.
CHOSE IN ACTION.
I, A9.S1GSMF.NT OF.
1. At Law.
fa) Be/ore 35 Hct. c. 12, 0., 653.
(b) Under So Vict. r. Hi, 0., 654.
i. In EquHij, 655.
II, Miscellaneous Cases, 657.
I III. Release of— .SVe Release.
IV. Effect of Sequestration — See Seques-
tration*.
V. ArrACHMENT of Debts —.SVe Attachment
or Debts.
I. Assignment of.
\. At Law.
(a) Before 35 Vict. r. 12, 0.
A party may assign a chose in action so as to
I make himself a trustee for the assignee, and give
Ithe latter the right to use hia name to coUect
ledcbt. Ham v. Ham, 6 C. P. 37.
A recovery by one of two counties, after dis-
lolution, for moneys paid during the union : —
^eld, to be allowed by 12 Vict. c. 78, s. 15, not-
auding the technical rule of law against
isignment of debts. Municipal Council of the
Koun(i/o/ Wellington y. Municipality of the Towii-
1»ipo/»rifmo«, 17Q. a82.
K. owned a propeller which had been employed
l)y government, for whom S. was acting as asent.
Ho solil her to the plaintiff, and atldressed the
following letter to S, ; " l)ear Sir, — As owner
of the i»ro. ' S. t!. Ives,' now employed by you
on account of the Canadian government in con-
veying materials to I'oiiit au Pele light house, I
beg to inform you that 1 have this day conveyed
to E. J. Sterling, PIscj., of Cleveland, all my right
to the payment of moneys for services perfonued
by said boat under our contract. You will
therefore, after presentation of this, account to
him or his agent for such sums as said boat may
be entitled to on account of work performed
under our contract." At the foot of this the
plaintiff signed an order to pay tlie money to the
captain of the vessel. This money was after-
wards seized by the sheriff under au attachment
against K., which was subsei^uently set aside.
Whether it was so seized in the hands of S. or of
the captain did not apjiear : — Held, reversing the
judgment of the Queen's Bench, (17 Q. B. 361,)
that the plaintiff could not maintain an action
for the money in his own name against the slie/iff.
Sterling v. McEirnn, 18 Q. B, 4li(), in appeal.
Defendant having plea<led a set-off to an action
upon a covenant for the payment of money, the
plaintiff replied on e(juitable grounds, in sub-
stance, that the deed declared on, and the
moneys sued for, were before this action, and
before the alleged set-off had accrued, duly
iissigned for value by pl.tiiitift' to D. , and by D.
to B. : that defendant had notice of and assented
to both assignments, and that this action was
brought for B. 's benefit, the plaintiff being a
nominal plaintiff only : that after the said assign-
ments and notice thereof B. sued ilefendaut in
the plaintitt"'8 name on the same covenant for
another breach, to which defendant pleaded non
est factum, and a verdict and judgment were
recovered against him, which he pain ; and it is
inequitable that he should now set up the defence
pleaded : — Held, on demurrer, replication good.
Bennimm v. Kuux, 24 Q. B. lit).
Defendants agree<l with R. to sell and deliver
to him a quantity of lumber by a certain day.
After that day R., with defendants' assent,
assigned the contract and all his interest in it to
plaintiff, and defendants afterwards told the
plaintitt"s agent they would carry out the con-
tract, and delivered some of the lumber to plain-
tiff : — Held, the suit being commenced before
the .I.T Vict. c. 12, ()., that the plaintiff was only
the assignee of a chose in action, and could not
sue defendants for not delivering the rest of the
lumber. En kins v. (luirliy it til., 33 Q. B. 178.
(b) r,i(ler 35 net. <•. 12, O.
Plaintiff' sued on an arbitration Ixmd, alleging
an award that defendant sbonld pay the plaintiff
a sum of money, and convey to him certain lands,
and assigning as breaches non-payment and
neglect to convey. Defendant pleaded as to the
first breach, that since the 35 Vict. c. 12, O.,
the plaintiff' had assigned to one B. the money
awarded, of which defendant had notice : — Held,
a good plea ; for that such assignment of the
money alone, without the bond, was valid under
the act. Wellington v. Chnrd, 22 C. P. 518.
An averment in a declaration that a chose in
action "was duly assigned in the manner re-
|i«j!i|iuiip
dW
CHOSE IN ACTION.
658
81
fi.
quired by the act," — Held, sufEcieiit. Comim
V. Bullen, (i P. R. 71.— C. L. Chamb.— Oalt,
Dalton, a V. .{• /'.
On an award directing defendant to pay to the
plaintilTa $,S20, one of the plaintiffs, H,, endorsed
the following memorandum ; - " I hereby as«ign
the within award in this matter to V\ . N., to
scuuro payment of the sum oF .f M^O, this day lent
and advanced by him t(> me, and I lieruby autho-
rize him in my name to take all necessary steps
for the collection of tiie amount of said award
for me, and retain thereout his $1.S0. " B., the
other plaintiff, endorsed a memorandum under
seal on the award confirming the above assign-
ment : — Held, that the aasignment did not,
under .3.') Vict. c. 12, s. 1, ()., enable the assignee
to sue in his own name, for it was not an iu>8o-
lute assignment of the assignor's whole interest
in the award, Imt a pledge to secure a muoh
smaller sinii, and the words of the assignment
shewed that the assignee was not intended to
have such right. Hoxtrnwspr ft al. v. Hobiimoii,
23 C. P. 3.50.
B. assigned to his partner and to himself a
debt due from defendant to himself for goods
sold, &c. :— Held, that under 29 Vict. c. 28, and
35 Vict. c. 12, ()., B. and his partner could aue
for this debt in their joint names. Ulair et al. v.
ElliH, 34 Q. B. 46G.
Held, that the 35 Vict. c. 12, 0., applies to
assignments made and causes of action accrued
before as well as after the passing of the act ; and
that the declaration in this case shewed a suffi-
cient assignment. iVaU<i<'e v. OilchrM, 24 C
P. 40.
2. 1)1 Eqnily.
Theplaintiflf being liable as surety for P., P.
gave him an order for the amount on the govern-
ment, for whom P. was working. This order P.
countermanded before any acceptance by the
government. The debt having been paid by a
sale of the plaintiff's property, and P. 's contract
having been assigned to M. , who received from
the government tne money due upon it :— Held,
that M. was bound to pay the amount of the
order. Foote v. Matthewn, 4 Chy. ,366.
To enable the assignee of a chose in action to
proceed in equity for its recovery, he must shew
the existence of some difficulty or obstacle to
prevent him from recovering at law. Ross v.
iV««ro, 6 Chy. 431. ,
The holder of a debenture issued by the trus-
tees of a Methodist church, transferred it with-
out consideration, by signing an endorsement as
follows : — " Pay to J. fr. or order," and delivered
the same to the endorsee : — Held, that such
transfer did not vest the debt in the transferee
so as to prevent the claims of the creditors of
the original holder attaching uijon it. Gotl v.
Oott, 9 Chy. 1(55.
The Trust and Loan Co. , being the holders of a
mortgage bearing 8 per cent, interest, transferred
the same to a private individual : — Held, that
the assignee was entitled to enforce payment of
the stipulated interest, notwithstanding that at
the time of the creation of the incumbrance
the company only could legally have reserved
such a rate of interest. Reld v. WhUehtad, 10
Ohy. 446.
igainn
Where a person having a demand
another, uave to a creditor of his own an dfiU
on his debtor for a portion of his dcniaiiij, ^^■|,jA
order the debtor was notified of, Imt ijij i,,,,
accept : — Held, notwithstanding, that tlie unu
and notice formed a good equitalilc a.sAii'umn t
of the portion of the claim which it (.dvereii
Fari/iilKir v. C'iti/ of Toronto, 12 Chy. 180.
Although an order operates r.s an tMinitalj,
assignment of a debt due to the drawer, nnd that
without any acceptance by the drawou ; still if
the pel-son to whom the order is given acceiitsit
conditicmally, agreeing only to give up liia dain,
against the drawer on the orrler Ijclng accepted
and paid, and if not paid to return the onlw
and he subsequently proceeds against lIic drawer
in respect of such claim, he cannot afterwardi
enforce his equitable claim against the draww
Minr v. Wmlddl, 14 Chy. 488.
Where a party gave a draft on u corporatioB i
iii'l<'bted to him, but the proper stamps Mcrt I
ih.i on the dr.aft when it was discounteil imj '•
the holder neglected to put on double stamps i
as required by the statute, it was htW not tu
constitute an equitable assignment of the fund
of the drawer in the hands of such (.-orporation.
But the drawer having written to the corpoiatioj
directing them to pay such draft from tW fund
coming to him, such letter was held to cimtti-
tute a good equitable assignment. Rolitrlnfu v
Grant, 3 Chy. Chaml). 331.— Strong.
It is no objection to an assigiiuient ni equity I
of u claim against a third person, that the work
upon which the claim is to arise has yet to bt
performed. Buntinv. tieorrjen, 19 Chy. 107,
A printer being about to execute a contract u |
printing for a customer, applied to a paper makt,
for a supply of paper, but which he refused tu I
supply unless secured therefor ; thereupon a
memorandum was signed with tlie pniiter's
name, by one, with the cognizance of the other,
of two persons having the general management
of the printer's business, agreeing to hand over
to the manufact' rer a draft upon their customer
for the amount of the account, payable at three
months from the completion of the work:-
Held, that such document was a sufhcientassign^
ment of the claim in equity, and that the girinj;
thereof was within the general authority of tlie
managers of the business. Jb.
The customer, after having been notitieJof
this arrangement, paid the amount to the printer:
— Held, that such payment was made in hisown
wrong ; and he was ordered to pay the amoiut
to the plaintiff, the assignee. ]ti.
A bond was executed for the conveyance ol
real estate, which by the contrivance of tk
agent of the obligee, falsely stated that the pu'
chase money agreed upon had been all paid U
the obligor, which bond the obligee tranafcrrcl
to a bond fide assignee for value, who tiled a ii '
to enforce the execution of a conveyance. Tiie
court, however, following the rule that tie ;
assignee of a chose in action takes subject Ui ill
equities affecting the same, refused a ilecree j
except upon the terms of payment of such m
as might, on taking an account, be found due to |
the obligor in respect of the purchase money.
Gould V. Close, 21 Chy. 273.
The assignee of a mortgage, like the assip
of a note (iutermaturity) or other chose in actimi,
mi
lonvcyaiice of
vance of tie
that the mi-
:i all paw t«
po transferred .
rho filed a bill
^eyance. The ,
Vie that the 1
I subject to all I
Ised a ileciw
1 of such m
I found due to j
Ichase money.
I the assignee
Lose is x!''''''
657
CHURCHES.
658
take* tli@ lame Hubjeot to all oqiiitivH, as well
tho»e of third partioa, as thosu oftlio imrtioH to
Jio iustnunBUt. EUhU v. McVoiimtl, 21 Chy.
27ti.
II. Mis('i«MiANK(trM Casks.
Helil, that writs of execution only liinil nioneyH,
cliMCS ill action, or BecuriticB for money from
the time of seizure l>y the Hheritl', and not from
the time either of the issue of the writs or
ilelivery thereof to the sheriti'. McDowill v.
_\lrl)i,mll, 10 I-k J- 48. — Chy. Chamb. — Van-
Koughnct.
l.iml havini,' been conveyed in consideration
,il the grantee agreeing to convey a certain
iMirti.iii ti) a ohird person, who was no party to
the traiisaction, it was held that this person
cduH maintain a suit in his own name for such
[xirtion. /V/irtic v. /SVanc, 17 C"hy. 282. .
II.
ill.
IV.
V.
VI.
^VII.
till
CHURCHf^H.
Church of Enoland.
1. Ckrijy BesefiH'M, 657.
2. Rectory md Qkbv Landu, 6157.
3. Church TiviporulitifH, 6(i0.
4. Vhurchwarden», 662.
5. Church Society, 662.
6. Synod, 663.
C'nuKLir OF Rome.
1, D'wi-ese of Sdmlwich, (iG3.
'1. Xuii-Sef Nun.
3. Sepiirnlf Schools — See Public Sohools.
Other Churliies, and Rf.li(4ious Insti-
Tl'TIONS, 663.
Pkws, 667.
DiHTURBANUES I>f, 667.
Conveyances to — See Mortmain.
Devises ok Bequests to— *(- Will.
Sacrilege— iS'ftf Criminalj^Law.
I. Church of England.
1. Clergy Reserves.
\ The 18tb clause of 4 & 5 Vict. c. 100, does not
bply to clergy reserves. Byers v. Moore, 5 (I.
4 ; Dw (
.138.
Wehenlterger v. McGlennon, 5 Q.
2. Rectory and Olehe Lands.
lln ejectment by a rector for glebe land, he
pt prove presentation, institution and induc-
bn. Doe Cresn v. Friesman, 1 Q. B. 420.
iQuiere, in the case uf successive incumbents,
Ito the necessity of such proof in the case of
fh. Ilmlersun et al. v. White, 23 C. T. 78.
I rector is not barred by atl verse possession
Ithe glebe land for twenty years, unless he has
\n incumbent during the whole of that time.
p'v. J/cJTiiinoN, 16 Q. B. 216.
1 the 19th January, 1824, the crown granted
■ S., G. M., and J. M., in fee, certain land,
42
which had formerly been sot apart for a rectory,
and on which a church had been erected, intrust
to uonlii'm all exiHting leases, and to grant new
leases, and ai>ply the rent first to the payment
of any money boi'iowed for erecting a new
churcii, and then to pay the rent to the clerKV-
nian of such church ; with a proviso for the
appointment of new trustees by the thrde gran-
tees, or the survivors or survivor of them, and
a further proviso, that whenever the gover-
nor should erect a i)arHonage or rectory in King-
ston, and duly present an incumbent thereto,
the trustees should by instrument under their
hands and seals, attested by two cre<libk wit-
nesses, convey the land to such incumbent and
his successors forever, upon the same trusts
thereinbefore expressed. On the 2l8t January,
1836, letters patent is8ue<l erecting a rectory in
Kingston. Before the 10th of May, 1837, the
trusts of the patent of 1824 had been fulfilled,
and on that day by deed poll, after reeitiny the
two patents above mentioned, and the induction
of the said S. into the said rectory, the tiaid
O. M. and J. M., the two other grantees in the
first patent mentioned, in fulfilment of the trust,
conveyed the land to the said O. S. , as rector
and incuml)ent, to ludd to him and to his suc-
cessors, subject to and under the uses and trusts
set forth in the letters i)utent to them. To this
was appended another deed poll of the same
date, executed by O. 8. , and declaring for him-
self and his lieirs, that as one of the trustees
named in the patent of 1824, ho agreed to this
assignment, and held the same in his capacity of
rector and incumbent of Kingston, and not other-
wise. In lo42 (). iS. leased the land for twenty-
one years, with certain covenants for building
and renewal. In this lease he was described as
rector, and it recited the two patents of 1824
and 1836. The successor of O. S. brought eject-
ment against defendants, claiming under this
lease : — Held, on the authority of Doed. Bowyer
v\ Judge, 1 1 East 288, that the conveyance of
1837 passed two-thinls to the plaintiff, and that
he was entitled to recover for that ; for, Semble,
in a court of law the ground that the trust to
convey being joint was incapable of severance
could not arise, the legal estate only being in ques-
tion. Lyster v. Kirkpairicl- et al, 26 Q. B. 217.
But for that decision, Semble, that if the
appointment of (). 8. as rector rendered him
ipso facto incapable of acting in the trusts of the
patent of 1824, it could not divest him of the
estate, or prevent him from joining in a convey-
ance to any new trustee su))stituteil for him ;
nor could the deed poll of 1837, executed b^
him, pass the estate vested in him in trust in his
natural capacity, to himself as a rector and cor-
poration sole : that whether the grantees in the
patent were to be treated as taking a power or
as trustees owning the fee, the conveyance by two
only of the three was inoperative ; and, Semble,
that they were trustees. Ih.
The two-thirds having passed to 0. S. as rector
by the conveyance, he still held the remaining
third in his natural capacity, and the joint estate
was thus severed, for as rector he could not be
joint tenant with a natural person, lb.
The law of England in respect to the riabts
and p<}wera of rectors as to toe land vegted in
them as such, is in force in this country ; and in
this case the provisiona in the defendants' leaa«
■'if'
■( " i;
I '.1
. I , 1 1 If I fl I "•■»
659
CHURCHES.
respecting renownl wtTo not binding on the
ulanititt', ita thv. HUccuiHorof (), S., the TuHHor anil
first rt'itor. LijHUrv. Kirkjxitr'u'k it ul., !iO y.
B. 'ilT.
Held, thut dufondnnts were not eHtopped l)y
the louse from denying the power of <). H. to
lease, for the recitals professed to shew what
title he liad. lb.
By letters patent dated in January, 1824,
certain lands Mx-re granted to three imrties uixm
the trust, amongst others, to convey the same
to the incumbent whenever the governor Hhould
erect a parsiiiage or rectory in K. and duly
appoint an incumbent thereto, such conveyance
to Imj upon truHts similar to those thereinl efore
expressed. In January, 18.'<(l, a rectory was
created in K. In May, 18.S7, the trusts for
which the patent of 1824 had been issued having
been carried out, and one of the trustees named
therein appointed rector, the other two joined
in a conveyance to him as such rector, to hold to
him and his successors, subject tu the uses and
trusts set forth in the grant to them. In 1842
this incumbent created a lease for twenty-one
yeans (under which the plaintiH's claimed), where-
by hu covenanted for himself and his successors
tu pay for certain improvements nuide by the
lessee on the premises, or that he or they would
execute a renewal lease on terms to be agreed
upon, and that until such payment for improve-
ments or renewal of lease, the lessee should re-
tain possession of the ])remise8 : — Held, that the
incumbent, either as trustee or rector, had no
power to bind his successors to pay for improve-
ments, or to enter into any agreement wlxich a
priori would extend the lease beyond the twenty-
one years. Kirkjialrkk tl ul. v. Li/ntir, 1,'J Chy.
323; affirmed in appeal, IG Chy. 17.
Hold, also, that the mere demand of rent by
the successor of the lessor (after the expiration
of the 21 years) was not such an attirnmnce of
the covenants in the leivse as would estop him
from disputing them. H. C. 13 Chy. 323.
A tenant of glebe lands, under a lease con-
taining a covenant for further renewal, continu-
ing in possession after the death of the lessor,
and after the induction of his successor, against
the latter's will, has no insurable interest, the
successor not being bound by the covenant.
(S'Aaif V. Pluenix Jna. Co., 20 il. P. 170.
One G., a rector, in 1861, leased land to plain-
tiff for twenty-one years, at an ammal rent, with
a proviso for reentry on non-payment. Semble,
that such lease was binding on the rector and
those claiming under him until forfeited. O'Hare
V. McVormkk, 30 Q. B. 507.
Under the Constitutional Act 31 Geo. III. c.
31, and the royal commission. Sir J. C, the
lieutenant-governor of U. C, had authority to
create and endow rectories without any further
instructions. The public events in the province
of Upper Canada between 1826 and 183(), were
not sutiicient to warrant the presumption that
such authority had been revoked or suspended.
Attomey-Gentral v. Gra»Ht, 5 Chy. 412.
Under 31 Geo. III. c. 31, a patent establishing
and endowing a rectory or parsonace is not void
for want of a grantee being named in it ; nor for
not defining the limits of the parish within which
the rectory was to be, it being established in and
for a certain township, lb.
The above decree declaring that the cndd,
inent of r«!ctories in the manner the iiiutciinut
governor had ordered them was valid, iiltinn i
in api.eal. .V. V. « Chy. 200. '
My 31 Geo. 111. c. 31, his Maji'Hty iui,l ],;,
successors were emjiowcred to autluni/e tli
governor of the province of (^lu'lu'e to crM
parNoiiages or rectories therein iicciiiciiiii; tu t|
('Htal)liHiiinent of the ('liiircii iif Kiiglaiiil • aiii
in pursuance thereof Sir John ('oil)onii. m i^),
then lieutenant-Kovernor, erected ami cmlim,,!
the rectory of K. By a subseciiifnt luoviil.
cial statute the ciiurch society of tliu ilimts
of T. was incorporated, and by a iiiti'i- (jtatiit-
the right of presentation was vested in it. Sni,.
secjuently the legislature erected tlu' du rta^, „;
O. out of the diocese of T., and tlie l)iHlio|i, chi-m
and laity of the diocese were incorpoiiiti'd uiidvr
the name of the " Incorporated Syudd ol tin I
I'iocese ' f Ontario," who, by a by-law in lS(j'' 'I
invested the then bishop witii the right td iviiin.ji'J
to all rectories during his iniuiulitiuv. Tlit
bishop afterwards, on the death oi tliuinciim.
bent, presented to the rectory (d K. ; winriuijiin
an information was tiled by theattonnymMitnil
on the relation of certain of the parisliioni.>rs
against the bishop and the rector, iJriiyini; ti,
have such by-law of the synod dechufd viiidan,!
set aside. A demurrer by the biHliop and nrti.r
for want of equity was allowed, tliu cdurt cun-
sidering that under the several act« and iudcuhI.
ings which had been passed and taken the right
of presentation was vested in the l)isli(i], duniii;
his incumbency. But, ouaTe, if tlic cliunh s»-
ciety of the diocese of 'f., before the «ottin" ntf
of the diocese ot (J,, had pasHcd a liy-law .similar
to the one passed by the synod id ()., whetlur
the right to make such presentation did not ri-
main with the bishop of i'. Al/iiriiii/-<li'iicmlv
La mil r, 9 Chy. 4()1.
ijcase by rector— Covenant as to cutting timber
and clearing — Construction. Liiiiili/ v. yVno/,
10 Chy. 597.
3. Church TemporaUtks.
A will is in contemplation of law a "convoy-
ance. " Therefore under the words of sec. lliiif
3 Vict. c. 74, "by deed or conveyance,",! ]itrjoii
may devise, as wel' as grant by deed, lands tu
the Church of England for the purposes of that
act. Doe d. Biibr v. Clark, 7 (}. H. 44.
A. made his will in 1843 ; in 184G he added a
codicil merely appointing a new exectitdr "of
his will written above :"— Held, that thuciKliiil
was a confirmation and not a revoeiition ol the
will, which must be still cousidcreil a- i will
made in 184.S. Held, McLean, J., diss
will OS a conveyance is perfect at tl
execution, though its eti'ect canni>
the death of testator, and that t ^ tJie
condition of sec. KJ, of 3 Vict. c. 7 . nniig
"a deed or conveyance to Im) made ami i\. J
six months at least before the death of the ]iti-"ii
conveying the same," might be complied witk
in the case of a will. lb.
A devise under the 3 Vict. c. 74, made to tke
bishop and tl.o rector, is good, iiotwithstamlinK
the statute speaks of a conveyance to the bishop
or rector, &c. lb.
CHURCHES.
(563
'','/ V.
* ''convey-
of sec. lliui
iec,"a inTMi
ecil, lanik t"
posi'8 (if that
44.
G ho aililetl J
;XCClltli|' "of
lit tile ccxlkil
cutioii oi tli«
•ed ii-^ i«ill
, die
11 ring
iiiuii.xi ■"'
Lf the litrsiiu
Impheil with
Imiule to the
l»-ith9Umliiiij
|u the bishop
11 niiexiirt'snoil truHt 111 lavour oi a coriioniuini
wp.uitiit«<l iinilur the Cliurcli 'reiiiiioriUitii'H
Ictfriim lnMii({ pew hoMuiti, liy ruason of tlu'ir
int lielimiriiitf to the Church of Kiigland, wuh
Pt.fciidimt, being th« hohh-r of powii in the
.liiirth iif ^*t. .laiiH'K ill Toronto, IwloiiKiiiK to tli(!
(hurihiil Kuk''""'' i:i'i»vi\V<'il tlu^HiiiMiliydi'tMl to
111 viiitit''. a iiiriiil«'r of that clniri'li. 'rhiMlciMl wan
In ri'ftht'y HO iiiailu to phuntiti' in tru.st for a cor
iHiriitimi, to HooiiH' a hian l>y thoiu to ih'fcinlaiit,
■mil it'vi'ii'l iianilii'iH of thi' oorporiition IxdoiiKcd
tootiuTicliK'i'""* duiioniinatioiiH. I'laintill' waH
lint ilenorilii'l in the ilvvA im a nu'inln'r of tlut
Church i>f Knnlaiul. hut tlic eviiU'iuni at tlui trial
kIhwciI thiit 111' had Imhiii in tlio habit of att<'iid-
the Hcrvioi'H of that ohundi ; -Hold, that
there wiwt HulUoiunt »)vi(h<iicu that the idaintitl'
lioloiiueil to tlif « 'hurch of Knghiiid, and that it
^„, „„t iifCf(«Haiy tluit ho Hhouhl havo beun ho
(Itscribeil in the '(lowl HUloiii v. /Amtw, 17 C
1'.88.
Held, i»l»"i that the deed, cvun if clothed with
Ml niiexiirt'Sfod truHt in favour of a oorimration
illt'i
Art
not lielimgini,' . , . ,, .- , ,
nevertbeleits not void in the eye of a court ot
law liccftiisi' it was ii[>i)arently j{oo(l on its face,
mill itwiiH tiificforo binding between the jiartics.
Semlile, that a court of equity would set aHide
the ileed on account of the existence of «ucli
secret triiHt, but tliat a court of law wcmld not
recopiize it oven if it were set out. Ih.
Hold, alsii. tliat plaintifT could not miintain
cjettinent fur pews bccausii he was not cntitleil
tothecxoliifive iiosscssioii of them, hi.s ikihsch-
lion being limited to the siiecial luirpose of
Mttiidiug divine service, at which time alone lie
hail the right to enter; and because such right
was (if ill! imorporeal nature, and posaession of
it could nut Ik; given by the sheriff. //'.
Case is the proper remedy for the disturbance
of tiie right to occupy a pew. Ih.
Definition of the words "absolute purchase,"
contained in sec. 7 of the Church Temporalities
Act. Il>.
The court in Italic, after verdict and exception
taken, amendi'il the record in ejectment by
iililiugthc woril.-, "lands and premises," to the
projierty sued foi'. /''.
The church ol St. J. having Ijeen destroyed by
, it was agreed that tlie pew holders who had
lurchased the right to their pe\y8, subject to a
onml rent, should pay a certain sum and be
instated as nearly as circumstances would per-
Jt ill their iicws in a new church, to be built
in the site of that destroyed. After the new
lUrch was built one of such pew holders refused
iwv the mmi of f'.'.!, agreed to bo 8uV)8cribed
U rei iiulding the church, and for
'hicli In,' li^iii given his note ; whereupon the
lurcbwanlens, in pursuance of a resolution of
it vestry. iioved the door from the pew
limeil by ind the holder thereof instituted
action on ^m case against the churchwardens
disturbance of his easement : — Held, affinn-
the decision of the court below, that he was
it entitled to recover. Macaulay, 0. J., and
ms, J., diss. Bninskill • Harrh, 1 E. &
The 3 Vict. c. 74, for the management of the
inrch temporalities, is not confined to pariah
lurches, but embraces all churches in oomiuu-
n mth the united Church of England and
' id. Sanm. v. MUche/'. 6 Chy. 582.
The iiicumlKint of a church, without the con-
sent of the bishop or churi'hwardciifi, took a
dt^cd of land in ills own iianu' as such incum-
bent, the property liuving been previously con-
tracted for l>y the bishop and certain nu^inliers
of the congregation for tlie site of a I'htircii, and
on his retirenieiit refused to exei^ute a release.
The court ordered him to I'xecute such a release
of the estate ; and, as his conduct had been
iinreasotiable, refused him his costs, although in
strictness the bill, so far as it sought a eonvey-
anco, ought to have been dismissed, title having
alretuly veutud iii his successor Ih.
4. Chnrcliimfdenit.
I'laintifT sued defendants as churchwardens
for his stipend as the incumbent of a church. It
api>eared that several resolutions were adopted
in vestry as to the salary of the clergyman, but
only one siibse(|Uent to the defendant's acccp«
tancc of ollice, which related to an old Imlanco ;
- Held, that as plaiiitifl"s claim rested on a vol-
untary undertaking of the vestry, and the evi-
dence shewed no contract between plaintiff and
defendants foimded u)ion a consideration l>etwoen
them, the defendants were entitled to judgment.
(/urn/ V. U'alhii-e et al., I'i C. P. .S72.
Upon an action again.st two churohwnrdens,
(bj'iume,) deseribing them as as "the church-
wardens of Christ's church, in the vill.ige of VV.,"
kc, for the use .iml occupation of a house rented
by the previous churchwardens for the rector : —
itehl, tiiat under sec. (i of ,3 & 4 Vict. c. 74, the
action was jiroperly bronght ; '2. That the taking
of the premises and occupation by the clergyman
under the previous churchwardens, with the
sanction of the vestry and the defendants, was
sufficient to bind them as churchwardens. May-
mtfil V. Gnmhlc ft <il., 13 C. P. 56.
This case having been again tried and a verdict
found for the plaintiff, the decision on the former
rule was n))heid. A. Wilson, J., although differ-
ing in opinion from the rest of the court, con-
sidered himself concluded by the former judg-
ment. iS. C. Ih, 467.
A bill was filed by the churchwardens, and
during the progress of the suit the churchwardens
were changed at the vestry meeting ; the new
churchwardens were not made imrties. The suit
not being brought to a hearing within the time
required by the practice, it was held that a
notice to dismiss the bill served on the plaintiffs'
solicitor was regular. Qu.-ere, was it necessary
to make the new churchwardens parties. Mc-
Feetero v. Dlmn, 3 Chy. Chamb. 84.— Mowat.
5. Church Society.
By the act of incorporation, 7 Vict. c. f)8, the
church society of Toronto is enabled to hold
real estate without any license for that purpose.
Church Sociefy of the Diocese of Toronto v. Cran-
dell, 8 Chy. 34.
A bill will lie by a member of the corporation
of the church society of the diocese of Toronto,
on behalf of himself and all other members of the
society, to correct and prevent alleged brcachos
of trust by the corporation ; and to such a bill
the attorney-general is not a necessary party.
Boulton V. Tlw Church Society of the Diocese, of
Toronto, 15 Chy. 450; S.C. 14 Chy. 123.
m
Hi!,
66d
CHXTRCHES.
m
iilf
6. Sifnod.
The church society of the diocese of T. biul
become united to and incorporated with the
synod of tlie diocese by act of jiarlianient. A
bond for secu. ity for costs of appeal, &c,, had
been tiled, and a motion made to allow such
bond, which Wc-xs objected to on the ground that
such bond could not be properly executed with-
out the concurrence of at least one-fourth of the
diocese, and unless at least one-fourth of the
congregation were represented : — Held, that the
synod was bound by what had been done by tlie
proper officers of the former corporation, without
waiting for the action of the synod, and that
there was an implied authority in the act autho-
rizing them to take such a proceeding as that in
question on liehiilf of and in tlie name of the
synod ; and a stay of proceedings, ])ending the
appeal, was granted. Boulton v. The Invorpo-
rated SipifHl of the Dlocime of Toronto, 2 Chy.
Chamb.' 377.— Mowat.
II. Chuhch of Rome.
1. Diocese of Sdndwieli.
Held, that the R. C. bishop of S. , incorporatotl
by 8 Vict. c. 82, as "The Roman Catliohc Epis-
copal Corporation of the Diocese of Sandwich in
Canada," had no power to borrow so as to bind
his successor ; and therefore that tlie plaintiff,
having lent money to such bishop, whicli was
used in the construction of the episcopiU resi-
dence and for the purj^ses of the church, and
taken security for repayment under the corporate
seal, was not entitled to recover against the cor-
poration. Jiiillz V. T/w Roman Catholic Episco-
/ml Corporation of the Diocese of Sandwich, 30
Q. B. 269.
The bishop was described in the instrument as
" R. C. bishop of 8andwi<'li :"- -Held, that this
variance from the cor^wrate name was immate-
rial. //*.
III. Other Churches and Reugious In.sti-
TUTIONS.
Trespass was held to bo maintainable by the
trustees of a Methodist chapel against a person
who was a trustee, but having ceased to lie a
member of the society could not hold the trust
under the provisions of the deed which created
it ; and some of the plaintiffs, who were not
the original trustees, but had l)een elected as
their successors under the same provisions, were
properly joined in the action. Ewrett <t at. v.
IIotvellHal, 5 0. S. 592.
Where real property was given by dceil in
trust for the Methotfist Episcopal Church in
Canada, according to the rules adopted by the
general annual conferenca, and that when any of
the trustees or their successors should cease to
be a member of that church, that such trustee
should vacate his trusteeship ; and at a general
conference the majority did away with episco-
pacy, and having appointed new trustees, claimed
the property from the old trustees on the ground
that, as they had not conformed to the niles of
the general conference, they had ceased to l>e
trustees according to the terms of the trust deed,
and the new trustees took possession of the pro-
perty : — Held, on ejectment brought by the old
trustees, that they were entitled to recover, tki
conference having no power to do away \(iti
episcopacy, and the ohl trustees by contimiiiii
ill tlic original church having complied with tij
terms of the deed. Doe d. Trustees of tin' Mfij.^
dist Kpiscoptd Church v. Bell, 5 O. 8. ;U4. But
This decision was afterwards reversed in /),,,, i
Ifei/nolds v. FUnI, M. T. 4 Vict., (not iiiiHjrtnl,
which was upheld in Doe d. Methudid EjiUfm,^ i
Trusters v. Brass, (i 0. S. 437. '
Ejectment cannot lie maintained on » ,i^ I
mise of a Methodist church, as a corpoi'att; IhhIv
tile demise must be in their names iia indiviilii,4 {
Doe d. Methodist Trustees v. Carwin, T. T, U»
Vict.
Where, by ileed of bargain and sale, land wai I
conveyed to certain persons named a.s trust«es,
and ' ' to others " not named, and their successors!
to hold to the persons as named, and "toothers! I
trustees as aforesaid, and their successors li
office in fee simple absolute forever, to the niily
proper use and behoof of the said (the wnm
named), and others, trtistees as aforesaid, an.l '
their successors in office forever, for the use nf
the minister of the Presbyterian flhureh, (ialt,
in connection with the church of Scotland, and
his successors in office," &c. :- Held, that no
action would lie on a demise in the name of the
trustees of the I'resby terian church at ( ialt, as
in a corporate capacity, but that a deniise might
be laid by those named in the deed, though thev
were not in fact trustees as the deed assuniel
them to be. Doe d. Trustees of llir I'lrithijirfm
Church in Gait in connection with tin' (Jhnreh nf
Scotland el al v. Bain, 3 Q. B. 198.
The plaintiff sued five defendants, describini;
them as the committee of the l'i'csl>yterian
Church at P., for his salary as minister from
January, 1357, to August, 1858. Itwaajirnved
by verbal evidence of different meniVwrs of the
congregation, that the eommittcc u.sually consis-
ted of eight persons chosen annually ; and that
a record of their proceedings was kept ; tint at
a meeting of the congregation in ISoli, it was
agreed to give the plaintiff a call, and afterwanls,
at another meeting, that he should receive iilOO
a year, to be paid to him from the jiew rents,
which it was customary for the committee tn
collect half-yearly. It was not shewn who mm
posed the committee in i85(), or that all thcile
fendants were members of it in 18.")7 or iSriS:-
Held, that the action could not lie inaintaiiic'i
Stewart V. Martin et al, 18 Q. K 477.
Under 12 Vict. c. 91, the trustees of laiidi
held in trust for tlio benefit of religious bodies,
with the consent of the governing body, can
alone exercise the powers given by the act A
contract for the sale of such lands made in com
pliance with a resolution of the ooiigrcgatinn, by
a member of a committee appointed to dispoie
of such lands, is invalid. Irvihij v. McLacMat,
5 Chy. 625.
Tlie land in (piestion was conveyed to five per-
sons as trustees of the Coloureil Wesleyan Meth-
odist Church in Canada, to hold to them awl
their successors, according to the rules and liis^
cipline of the said church. The deed iinrided
that when any of the trustees siiould dicoreeaw
to be a member of said church, a snccesgor shoulii
be nominated by the coloured Wesleyan miiiii-
ter or preacher having charge of the station u
led on a de. I
irpoi-ate lindv;
vs individuak |
ill, T.T. 14;
iita, (lescriliint;
I I'reshyteriaii
minister from
WHS iirnved
niJ)cr8 of the
iially cnnsis-
lly ; ami that
[it ; thnt at
1 8."(), it was
aftcrwanis,
oceive £100
jiew ri'iits,
omniittce t"
wn who I'oni-
at all the ilf
7 or IS'iS;-
iiiaiiitiiim-!
itecs of laiuls
iious l)0(iie^
body, can
the act A
iiado in com-
i;regation, by
id todispoie
McLaclihi'.
\ to live per
ileyan Mcth-
them and
des aiul ilis-
led pnniiW
1 die or oea«
eggor should
iyan minii-
Je station ii
665
CHURCHES.
666
which the land was, and thereupon appointed by
the surviving trustee or tnistees, if they shoulil
i jjjj^it nropei' t<i appoint the person so nominated :
I anil that if it should happen at any time that
there should be no surviving trustee, then it
should be law-ful for the cohnired minister in
I jiijrire of the station to nominate, an<l for the
i (niartcrly meeting of the station, if they s]u)uld
1 gpprovc of the nomination, to appoint tlie reijui-
8ite nundter of trustees ; and the persons so ai)-
I minted should be the legal suceessors of those
iiamed in the deed. The Wesley an Methodist
1 Church assumed control over this church, alleg-
inB that the deed was intended for the coloured
members of their church, there being no such
I ixKlyastheColoured Weslcyan MethodistChurch.
I Four of the original trustees were livuig, but two
were absent, having left this congregation, by
1 whii-h, according to the rules of the Wesleyan
MethodistChurch, they ceased to be trustees;
lone had Joined another body ; and the fourth,
I j„j of the defendants, had been expelled from
I that church. The plaintiffs were then nonii-
I nate<l as tnistces by one W . , a minister appointed
by the Wesleyan Church to take charge of this
chapel, but not a c(doured man, and their ap-
I pointment was confirmed at a quarterly meeting.
I They thereupon brought ejectment against A.,
I one of the original tnistees named in the deed,
lind a person who had taken possession under
|him:-Held, that they could not recover, for
[the expulsion of A. from the Wesleyan Alctli-
lodist Church could not deprive him of his char-
lioterof trustee under the deed ; and the plain-
I tiffs were not properly appointed, not having
lleen nominated by the coloured minister in
leharge of the church, as required by the deed.
ISmllmxl et al. v. Abbott Hal., 18 Q. B. 504.
In a deed conveying land to trustees for a
liirelng house for the ase of the Methodist
Ifcinister for the time being, there was provision
Bide for a new appointment in the case of a
,iiit€c ceasing to belong to the Methodist Epis-
[opal Church :— Held, that upon the happening
1 that event in the case of the last surviving
.rastce, the estate did not ipso facto become I
iivestcd, but the intention of the grantor plainly
leing that it should go over to new trmtees,
Ws could only be effected by the surviving
rantee conveying to them, llambly v. Fiilkr,
fcf, r. 141.
In 1833 lands situate in Cobourg were eon-
keyed to certain parties, and "the Kirk session
it the Presbyterian Church of C-anada in connec-
fcm with the Church of Scotland in Col)ourg,"
llpon trust for the use of that congregation, who
rectttl a church thereon and used and enjoyed
lie same until the disruption of the Presbyte-
un Church of Canada in 1844, similar to that
fl'ichhad previously occurred in Scotland. In
■anada, as there, the Presbyterian Church l)e-
lime divided into two churches, one retaining
identity with the Presbyterian Church ot
panada, in connection with the Church of Scot-
; the other forming a new church, called
["The Presbyterian Church of Canada," similar
1 principle to the Free Church of Scotland, and
which the congregation at Cobourg almost
lanimoutly adhered, and they continued to use
fce same church as hitherto until 1857, there
puwin the interval no congregation of the
rTMoyterian Church of Canada m connection
nth tha Church of Scotland. In this year
certain residents professing to belong to that
church applied to the surving trustees to have
the trust estate devoted to the purposes intended
by the donor, by allowing them the use thereof
for the puri)08e of religious worshij), which was
rcfuse<l. On an information and bill tiled by the
attorney -general and certiain persons so claiming
to be entitled to the use of the said trust estate,
the court declared tli.at the only pel sons entitled
to the use of the said church were those in com-
munion with the Church of Scotland, and the
fact that there had ceased to bv a " Kiik ses-
sion" at Cobourg was immaterial : — Held, also,
that the congregation for the use of whom the
trust had been origin.ally created having ceased
to exist, any new congregation in connection
with the Church of Scotland which might be
afterwards organized were proper objects of the
gift ; and to lie such, it was not necessary that
the present should be a continuation of any
])reviou8ly existing coiigregation. The Attorney-
(linenil v. Jifrvij, 10 Chy. 273.
The owner of lan<l agreed to sell a site for a
burial ground and church, in connection with
the Free Church of Scotland, if a congregation
thereof couhl be gotten together. A churtli was
l)uilt thereon, and a congregation in connection
with the Free ( 'hurch assembled mmX performed
divine service therein. Several years afterwards
the great body of the congregation abandoned
their connection witli the Free church ; and thoy,
in conjunction with the vendor, assumed to hold
jiossession of the church to the exclusion of such
of the members as continued to adhere to the
Free clnirch. On an infonnation filed in the
name of the .ittorney-general : — Held, that al-
though at first conditional, the contract, by
reason of a congregation having assembled in the
church, had become absolute, and that so long
as even one mendier remained to chiim the site
and church on behalf of the Free church, the
right of that Ixxly continued, notwithstanding
the change of opinion in the hotly of the mem-
beiu ; and, under the circumstances, an injunc-
tion was decreed restraining any further inter-
ference with such right, and also a specific
performance of the contract, with costs. The
Attorneij-Generdl v. VhrUtle, 13 Chy. 405.
Held, that the trustees under C. S. IT. C. c.
(iO, may maintain ejectment in their individual
names with the subjoined description, "as trus-
tees," &c., stating the name of the congregation
for whom they are trustees. At the triiU, evi-
ilence was tendered to shew that the congrega-
ti(m named in the deed, which was made to tlie
trustees on their appointment in 1864, had ceased
to exist before the execution of the deed ; — Hehl,
that this W.1S properly rejected ; as also evidence
to shew that defendant held under the obligees
of a bond, in discharge of which the deed was
executed. Humphreys it at. v. Hunter, 20 C. P.
45fi.
Where plaintiffs sued in their iutlividual names,
describing themselves as trustees of the Wesley-
an Methodist Church of Brussels, an amend-
ment was allowed at the trial by atrikii.g out
the names and allowing them to sue as a corpo-
ration incorporated under C. 8. U. C. c. 69 :—
Held, that tlie amendment was authorized. The,
TruKteen of the AinkyvUle Cotii/reijation of the
Wealeyan MethwUt Church in Catiadav. Orewer,
23 C. P. 533.
!H
\i
^^^^^^^R)
■ ]'i
1
'> i
■ I
;' 1
fe. u
r,i
M'
y ,1^ !i|t"''F'
667
CLERK OF THE PEACE.
668
!" !■
M
I^nd vested in trustees for the use of, and as
a place of residence for, a minister of a religious
body, and for such otlier purposes jvs the minis-
ters of such body, at tlieir general conference,
might from time to time appoint, is not " land
held by trustees for the use of a congregation or
religious body" within C. S. IT. C, c. (>9. //(
>•« The Mct/iodiM EpUcopal Vhiin-h /'ropcrlif hi
Vhurchmlle, 1 Chy. Chamb. 305. Mowat.'
To effect a sale by trustees under C. S. U. V.
c. ()!), all the requirements of the statute must
be complied with, <anil the jiublic notice nnist
state the terms of the intended sale. In re The
Second Com/ivifaHonal f'liiirch Pro]M'rtij, Toronto,
1 Chy. Chamb. 349. -Mowat.
■ A deed to come within 24 V^ict. c. 43, extend-
ing the time for registration of deeds to religious
institutions, must liave been registered within ii
year after the passing of it. In re The liaptUt
Church Propertji of Straf'ord, '2 Chy. Chand).
388.— Taylor, Secretary.
The iidvertisement recjuired by the act should
specify the terms of sale. //*.
A deed of church property ought to sliew liow
the successors to the trustees named are to be
appointed, lb.
36 Viet. c. 36, s. 18, after repealing C. S. U.
C. c. 69, and other acts, contained tlic following
words: "Saving any rights, proceedings, or
things legally had, acquired or done inider tlie
said acts, or any of tliem :" Held, tiiat tliese
words preserved to rights, proceeding.^ and things
completely had, actjuired or done, the eHicacy
which they had under the act repealed, but did
not continue the operation of the repealed act for
the purpose of ijerfecting rights, proceedings or
things not completely had, accpiired or done.
Re United Prenhijterinn Conffretiafion of' Londim, 6
P. R. 129.— Chy. Chamb. —Holmested, Referee.
Where there was a material error in a confir-
mation deed of lands sold with the sanction of
the court under C. S. U. C. c. 69, an applica-
tion made after the repeal of that act for an
order authorizing the execution of a new deed
was refused, fh.
the plaintiff was well known to the defcmUnt
and a boy living with his parents, and havj^',
no property : — Held, that the action wiiiilil|„J
lie, for defendant was authorized by ('. s. c ,
103, s. 59, to commit in the first instance, tint
statute applying to this conviction. Moikit ,•
liarnard, 24 Q. B. 498.
CIRCUITY OF ACTION.
I. AV0II).\NCE OF.
1. Uenendly—See Action.
2. In Actions on Bills or Notes— fitf Bilu
OF Exchange and Phomissorv
Notes.
CLEARING LAND.
I. Bv Fire— .SVc Fire.
II. RiGHr.s OF Tenant to Clfar Land— .y^f
Landlord and Tenant.
III. RioiiTis OF Tenant for Live— See Ehtatf.
IV. CurriNG Wood or Timber— .bVc Timbek.
CLERGY RESERVES.
.S't'ii Churches.
!:,h
IV. Pews.
Conveyance of pews — Action for disturbing
the right to occupy — Ejectment for pews. Kiiloiit
V. Harris, 17 C. P. 88, p. 661 ; Jirunskill v.
Harris, 1 E. & A. 322, p. 061.
V. Disturbances in.
Action for assault and battery against fourteen
defendants, Special plea of justihcation on the
ground that defendants were committing a dis-
tnrbance in church. Reid v. In<jl!s et at., 12 C.
P. 191.
I Will, k M. c. 18, relating to disturbances in
church, &c. , is in force in this province, and not
superseded by C. S. U. C. c. 92. Ih.
Defendant, a justice of the peace, convicted
the plaintiff under C. S. U. C. c. 92(8. 18, of
making a disturbance in a place of worship, and
committed him to gaol without first issuing a
warrant of diatreas, whcreupui; tlie plaintiff
brought trespass. It appeared at the tiial that
CLERK OF ASSIZE.
A clerk of tlie County Court, lieiiig alsdes
officio deputy clerk of the crown and clerk of
assize, is privileged from arrest only while en-
gaged in his official duties, or while going to and
returning from his office ; and this court, there-
fore, discharged a rule to prohibit the Countv
Court judge from issuing an order of coniinitment
against such officer. In re Mackay v. Umlmn,
27 Q. B. 2*J.3.
CLERK OF THE CROAVN.
See Crown Office.
CLERK OF DIVISION COURT.
See Division Court,
CLERK OF THE PEACE.
Where the treasurer of the district council
refused to pay the account of the clerk of the
peace for certain services, and returned to » man-
damus nisi that such charges were not shewn k
tlie clerk of the peace to be connected with the
administration of justice, or to have been t,^\-
tically provided for by law, so as to romier it
necessary that they should be audited hy the
district council ; and retunicd further, that there
were no funds in his hands out of which he conld
pay those charges ; the return wu allowed
S69
CLERK OF THE PEACE.
070
rhrh of the Peace V. Weafeni District Municipal
Council, 1 Q. B. 162.
The payment of certain fees by o district coun-
., j^ accounts rendered for services in former
veaw, will not prevent th
fharaes in subsequent years.
nSwC'o««n7, IQ. B. 292.
cil in accounts
will not prevent their disputing the
cbarg'eB in subsequent years. AMn v. Lonilon
Dinlriet " •' ' "
The clerk of the pe.-vce cannot charge fees for
anv service for which no fee is given by 43 Oeo.
111. «• 11' '"' <'tl'*"^'^®- ^''•
If he accept a salary in lieu of all fees, be is
entitled only to such salary. Ih.
A municipal council, in 1850, assigned to a
nlnrk of the peace a fixed salary for that year,
-in lieu of all fees :"- Held, (the Jurv Act 13 &
U Vict c. 55, having been subsequently passed,)
that he could still claim the fees allowed by the
statute for preparing the jury books for the
following year. Prinole v. McDonald, 10 Q.
B. 254.
The clerk of the peace is not entitled to any
If* from the parties to a cause for striking a
llK'cialjury Ihol-er v. Oimu-tt, 16 Q. B. 180.
In this case the question was whether certain
fees classilied in schedules in a special case sub-
mitttd, could legally be claimed, and how far
che county having paid them during several
yeare upon accounts duly audited and passed,
eould recover back such as he was not entitled
to. Besiiles deciding as to the different charges
thf following general principles were laid down :
Whert the clerk, at the request of the justices or
mimicipality, or of tlie county auditors, renders
services which he is not bound to render, and
Lr which no fee is allowed, though he might Ije
unable to sue for his charges, yet, when they
have teen duly audited and paid under no mis-
Mderstanding, the municipality cannot recover
them back ; and the same rule is applicable to
disbursements, as for stationery, ofHce furniture,
I tt. The Corporation of the County of Lambton v.
\tmM, 21 Q. B. 472.
Thi C. 8. U. C. c. 1 19, making it penal in the
Iderk to receive more than the legally established
Bee for services performed by him, does not
%pply to services or disbursements not properly
Mouging to his ofhce ; but the enactment is not
snhued to fees demanded oc individuals for
Ipubhe services, nor does the penalty imposed
litcrfcre with the right to reclaim fees received
loiitrary to the act. lb.
Where tlie fees are within that act, and have
I keen paid, they may be recovered back as money
lillegally received, though his accounts contain-
[ing them have been audited and passed. I b.
InderC. S. U. C. c. 120, the clerks of the peace
lird other officers are not to make out accounts
Itgainst the government in the first instance, but
jainst the county, who are to be paid or reini-
tirseil by govemmeut after proi)er audit. / /*.
The schedule appended to that Act was not
litendcd to enibra<;u all the expenses of criminal
^Hice chargeable against the Government, but
nly to remove all doubt as to those specitied. / h.
j In 1858 the plaintiff was appointed county
tomey for W. In May, 1862, the person who
for many years l)eeu clerk of the peace for
lat county died, and in August foUowiiig de-
fendant was aTn)ointed to succeed him in such
office. C. S. U. C. c. 106, s. 7, enacts that any
clerk of the peace appointed after that act "shall
be ex ofticif) county attorney for the ccmnty of
which he is clerk of the peace :" — Held, that
defendant upon his appointment as clerk of the
peace became also county attorney, although the
plaintiff's commission had not been otherwise
revoked, and he had received no notice of any
cliange in his position. Roiertmn v. Freeman,
22 Q. B. 298.
The magistrates ui Quarter Sessions, not the
county auditors, are to audit the accounts of the
clerk before payment, and the treasurer should
pay them upon the chairman's order. In re
PiHUfHdtt una the Corporation of the County of
Lambton, 22 Q. B. 80. See, also, In re Sheriff
of Lincoln, MQ. B. 1.
11. was decided in The Corporation of Lambton
V. Poussett, 21 Q. B. 472, that the clerk is not to
loi.k to the government for the expenses payable
by them under C S. U. C. c. 120, but to the
county, who are to be reimbursed by the govern-
ment. ^Vllero the. clerk applied to the county
auditors instead of to the sessions, and they
refused on tlie ground that he should be paid by
the government in the first instance, both parties
being wrong, the court discharged without costs
a rule for a mandamus calling up<m the county
to pay. /;( re Pounxetf and the Corporation of
the County of Lambton, 22 il B. 80.
The clerk under C. 8. U. C. c. 124, and the
tarili' of 1862, >i'o. 07, is entitled only to $1 for
each quarterly -jturn of convictions made by
him to the minister of finance, not to .*5l for the
list of convicti(>ns sent to him 'oy each justice
included in sucli return. In re Poumtett and the
Court ifO':'nera'(^. S. for the Co. of Lambton, 22
Q. B. 412.
Drafting the panel from the jury list under C.
S. U. C. c. 78, is not a special session of the
peaoe, ami the clerk therefore is not entitled to
charge for it under No. (i(! of the tariff. lb.
The clerk is recjuired by C. S. U. C. cc. 19,
120, to record and notify to the government and
to the clerks of each |)ivi.si(m Court only the
acts of the Quarter Sessions with regard to the
limits of the ditlerent divisions, not the orders
of the judge as to the times and places of hold-
ing the courts ; anil he is not entitled therefore
under the taritl', Nos. 38 to 4? inclusive, to
charge for sucli last-meiitior.ed orders. lb.
The table of fees established and promulgated
by tile courts contains all the services for which
clerks are entitled to charge, in .addition to such
as arc specially authorized and provided for by
any statute. No local tariff or user in particu-
lar counties can give .iny additional right /m re
Dartnell and the Court <f (ieneral Q. S. of Pren-
fott and /fn^.vtl, 26 Q. B. 430.
Where the Quarter Sessions have audited the
account of such clerk, this cimrt will not inter-
fere ))y mandamus to compel the allowance of
particular items, tb.
The county attorney and clerk of tht peace may
maintain an action against the corporation of
the county for Itreach of duty in not providing
necessary and proper accommodation for him as
such officer, as required by 'iV & 30 Vict. c. 51,
i
! i
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r , : ' ^I
I' !;
j
1 j! • ■■
■ ■ ■■■
; ( ■
i
h
671
COGNOVIT.
6?2
B. 419, and may recover by way of damages in
such action rent paid by him to procure such
accommodation. Le,en v. The Corporation of' the
County oj Carleton, 33 Q. B. 409.
The court house in which the plaintiff previ-
ously had his office was burned, and the county
council informally offered him certain rooms in
another building leased by them. The plaintiff
considering them insufficient, as in fact they
were, hired others at l$ll x'er month ; and liaving
sent in his bill to the council for seventeen
months, they passeil a resolution to pay him
$93. 50 (being one lialf) in full of his claim, which
sum he afterwards received, and signed a receipt
and the check therefor, which purported to be
in accordance with the resolution : — Held, that
he was bound by such settlement, and could not
recover more in respect of the seventeen months
rent ; but that lie might recover the full rent
paid by him subsequent to the resolution. Ik
CLOUD ON TITLE.
See Sale of Land.
COBOURG HARBOUR.
iSee Harboitr Companies.
COACH.
See Carriers.
CODICIL
See Will.
COGNOVIT.
I. Who may Kxecutk.
1. Partners, 672.
2. Attorneys, ()72.
3. Exeeutorit, 672.
4. Affidavit of Execution, 672.
II. When it mav be Taken, 672.
III. Intervention ok Attorney in Takino,
673.
IV. Filing, 673.
V, Judgment on.
1. Application to Enter, 073.
2. Application to set Aside, 674.
3. Other Cases, 675.
4. Obtained by Fraud — See Fraudulent
Judgment.
VI. MisciLLAKKOua Cases, 676.
[^e C. S. U. a c. 2G, ». 17, since which Coqw).
vits have been seldom taken,]
I. Who may Execute.
1. Partners.
A partner cannot sign a cognovit in the nam*
of tlie firm witliout special authority, iuid a \\\i\;
ment entered upon such cognovit will he gL
aside. Holme v. Allan et al, Tay. ,348 • H„i
V. Cameron, 1 P. R. 255.— P. C. -Burns. ' "
Where one partner cave a cognovit for himscli
and partner, without his partner's concurrence
and there was strong eviclence of colluaidn with
the plaintiffs to defraud other creditors, the court
set aside the cognovit and judgment enteral
tliereon with costs. Joi/cc v. Murraii M T
6 Vict. '
But where eighteen months had elapsed since
the judgment entered on a cognovit so signed
had been acted upon, and it seemed niDst pro,
bable that the other partner was an iissentiiii;
party, the court refused to set aside the judJ!
ment. Brown v. Civqmars, 2 P. R, 205.— P. C
— Bums.
COBOURG, PETERBOROU(!H AND MAR-
MORA RAILWAY AND MINING
COMPANY.
See Railways and Railway Compantes.
2. Attorneys.
A cognovit may be executed by the attorney
of the party giving it. Richmond v. Proctor 3
L. J. 202.— C. L. Chamb.— Robinson.
3. Executors.
One of several executors has no power to hiuij
the other by giving a cognovit, and where judg.
ment had been entered on such a Cdnfession it
was set fvside as against all. Commercial Bank
of Canada v. Woodruff et al, 21 Q. B. (K)2.
The drawer of a bill accepted by the testator
having joined in a confession thus given, the
court refused to set aside the judgment as against
him. lb.
See Uon-ie v. Beard etal., 5 Q. B. 620, p. (i"5;
Doe Lyon v. Legi, 4 Q. B. 360, p. 677 ; Bnaltiix.
Maxwell, 1 P. R. 85, p. 675.
3. Affidavit of Execution.
An affidavit of execution of cognovit made by
"William I). Baby," signed " W. I). Baby;"-
Held, sufficient. Folger v. McCallvm, 1 P. R.
352.— C. L. Chamb.— Robinson.
II. When it may be Takev.
May be taken in a cause althougii no prncesn
has issued ; and a defendant who has given such
cognovit with a stay of execution to a certain
day, may be arrested on a ca. re. before that day,
Walton V. llayward, 2 O. S. 468. See nowO,
L. P. Act, s. 236.
A plaintiff giving time to defendant by m-
ccpting notes may, as an additional aecurit}',
take a cognovit for the whole debt, with power
to issue execution thereon at any mooient.
Parker v. Roberts, 3 Q. B. 114.
A verbal agreement, liowever, restricting such
power, will be aoted upon by the court lb.
W^'- m
673
COGNOVtT.
674
The fiwt that none of tho notes liad Ittx-onu! of <lufunil.int and the witncsH. Clfdl v. Liilliaiii,
hiewhi'U thu cognovit wan imt in foiTo, will I i.). li. 412. I'. < ', - Mauaulay.
'„„t attcct tl.e jungnicnt or c-xoeution on mich ^ ,,.^^,,j^,, „j,,„, .^ ,„g„..vit aeven years ..1.1, uimii
alliilavit friini plaintill' .if the whole lieing .Ine,
cognov
it. /''.
A cdi.'iio^''' ""*y '"^ taken as a eontinuing se-
cui'ity for fiiture aceejitanees, and will lie g.to.l
.maiiint other ereilitors. J'nlftr v. I'kkli; •_'
V. it :W1- I'- C. -Burns.
and that having reeeive.l a letter fr.ini.lefen.lant
he lielieved him to he still alive, though the
allidavit .lid not state that .lefen.lant wrote or
signe.l the letter. OlijilniiU v. Mcd'iuii, 4 Q. B.
170. I'. ('. - Maeaulay.
Ill, InTKUVKNTION OKAtTOKNKV I.N 'r.\Kl.N(i.
The following eases were .leei.le.l un.ler the '-• Aiiidkofum to. set Axide
rule of court ot K. T. iHle.i. 1\'. reijuiring the j Where a ognovit was given with a stay of
iiiterveutioH of a practising attorney in taking execution to a future day, au.l a nieni.iran.lum
(,„m,|,vit, now suiiersede.l ))y rule .if T. T. ISoCi, j was endorsed ilcferring payment .if part for a
>'(!. 'JG, making nnire ett'ectual provi.-ion f.ir the , lunger time, and at the .hiy judgment was entere.l
same imrp. ISC. MrLvanx. Viiiiiiiiliii/, Tay. 184;;f.ir the wlmle, the c.iurt restraine.l the levy,
Jiiiii:i V. Ititnii'i', '\\ T. 7 Will. W. ; Lmlitr v. according t.i the mem.iran.luni, with costs.
Iliiilliccti', H.'l'' Will. IV. ; ThomimiH v. Xii'ich; 1 Ali.mmli r v. //iinii, T. T. 7 Will. IV. ; Flxlier
1(1 w 3;W. I'.C. — .Vlelieaii; Vlnrkxtni v. Mi/In; ; v. Eilt/m; ."> (». S. 141.
..(^'. li. !Mi. I'. l';-7''"!"-;«.; /'"'''•«"' v. -^•'/'"'•'■S ; After a cgn.ivit given liy tho principal an.l
, ,'. I. Chamh. -i-U Su .van ; A..// v._ ,m„^ b ,,), ^,,,,^1,,, j„^„t,y^ ^f,^ court will n.it set asi.le a
'( "•.•'/'.! " ^'" " -'hi>. I. jj„,ljr„n.„t entere.l ag.iinst all because time has
C.-^ltichiir.l.s. Iiecn given t.i the jirincipal with.iut the winsent
Xt'L'lect to explain tho nature .if a c.ign.)vit t.i .if the sureties. X/inni/ v. Sirtlza; M. T. 3 Vict.
tk ilefendants l.y an att.irncy exiiressly chosen , ^v,,^,,.^, ,^ .-.ign.ivit intitule.l in the cause against
!,ythum, wdln..tvitnvtethec.,n_fessi.inpr<iperly |„^^.^.,.,^, ,,,,,;., .fi,^,^,,^ i„ ^..^ccuted l.y s.ime only,
attestcl. ('""•■ V. nni.son ,1 <,!., .i L. J. I.W. ( . , j,„iy„ient .:annot 1... entere.l against these latter
{..Chaiul.. Hagarty. I„„ly /,.,„„./, ^. /.,,,„,,./, ,,, „/^ -|._ rp ._, ^ ^ yj^,^_
Ddciulants sending f..r an att..rm:y, name.l l.y { ^^ ]n,\gUMiui entere.l ..n e..gn..vitwith..ut tiling
theiihuntitl ..r his att..rney, will lie .l.^cme.l t.. ; ^.,„„;,„„ ,,,^i, ;« i,.,-egular. (,•.,./<« v. Tanv, I Q
have adtilited hun as their att.irn.'y withm the ,^ .,-- |. ,, j,,,"^
incaniiig.if the rule No. '2(>. //<.
IV. FlLI.N.I.
Where judgment has been entere.l up.iii a
cdgwivit it need not be tiled within tho peri.i.ls
reiiiiectively limited l.y the 17th and IHth sec-
tiiiiis of the (". li. I'. A., 1857. Ctniniu-rchtl
ISmil; ,if Caitmlu v. Fklrlin; 8 V. V. 181 ; Ar-
„mr\. Cirnillnrx, '1 1'. W. '.'17. (}. 15. ; M<-
Lmi V. SI 11,1 rl, 2 I'. H. 'Mu. Q. H.
Imiiiiitcrial discrepancies between the sw..rn
coiiy tiled and the original, c.institute no gn.nn.l
forsotting asi.le the ju.lgment. /rrin v. //.(//(,
111. .1.80. ('. K. ('h'amb. Draper.
.\ ili'feiiilant socking t.. set aside a jiulgment
XN'hei'c the jtlaintitls are style.l in proceedings
upon a cognovit as they are name.l in the cogn..-
vit itself, the .lefen.lant, having rec..gi\izc.l tho
plaintill's' names in his cogn.ivit, eanm.t ..bject
that the christian an.l surnames ..f the plaintifla
have n..t been used in the pnieeedings. Pitrkvr
H nl. v. /{iilin-ls, -.HI H. 114.
•I u.lgment entere.l and li. fa. issued in an outer
ilistrict, where suit n..t c.nmienced, were set
aside. Ctiiiuiurfiitl Hunk v. Jironiliii'tnt. 5 1^.
n. ;v25.
Semble, that the assignees of a bankrupt de-
fi.'udant may take the above exception tt. a ju.lg-
ment. //..
.A ju.lgment entered up..n a c.gn.tvit in an outer
_ , .listrict, n.. previous pr.icee.lings having been
„n a cognovit, jvs n..t being tiled in the .;ounty | i,,i,i there, is v.ii.l. Send.le, h.twever, that if it
where he rcsi.led at the time .if giving thec.ign.i- 1 i,a,l been tran.smitte.l t.i T..ront.), ami an entry
vit, must shew that ho was not so resident. //.. ] ,„a,lc there, sn as t.> constitut.^ an entry .)f ju.lg-
ment on tlie la.e .if the judgment r.ill, ..r s.. as,
in the terms ..f 8 \'ict. c. 'Mi, s. 4, t.. enter judg-
Wliere parties .lispute as t.. the balance .Ine
Mil a juilgiiiuiit, a reference nuiy be made to the
luaBter. / '..
V. JUDOMENT ON.
1. AppHcal'wn to Enter.
Orautcil, where the witness to a cognovit ha.l
loft the province. Kin;/ v. Holms, Tay. 299.
Ilcfu8e.l, on a cognovit more than tifteen years
iilil, when it appeared that the plain tilt' hatl once
acccpteil proiKjrty from defendant, and dis-
charged the action, though tho pn.jHjrty proved
uniiriKluctivc. < I rant v. Mclntonh, 4 O. 8. 184.
Cignovit given by one attorney an.l witncsse.l
by another, who was absent. Leave ffivon to
cuter judgment upon proof of tho haiidwriting
43
.il 8 \ let. c.
luent of record, and thicket it in the principal
ollicc, it might have been upheld. Litivrti/ v.
I'altvrmm, ."> (I H. t)4l.
HeM, per Sullivan, J., that the styling of a
ogm.vit thus, " Th..ma8 I'aterson, plaintift', c.
I'hilemn S.juires an.l VVillian S.juires, defon-
.laiits," leaving .lUt the letter o, and omitting
part of the letter in, was m.t an irregularity,
(there being n.. iloubt as to the identity of tho
parties,) u]H.n which a judgment an.l exeuuth.n
up..n the e.ignovit eoul.l be set aside. I'lttermn
V. Siiidns ct at., 1 C. J* Cliamb. 234. — SSulliviui.
In a c.gnovit (c.ntaining the usual under-
taking m.tto bring error or tile any bill in e.iuity)
damages were eonfesse.l at £500, ami tho decla-
ration on tho roll laid them at that sum ; tho
U h
t
'•'f
i;
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w
vl
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1
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1
'1
II
675
COGNOVIT.
firi
entry of judgment eonfesHed dnmaguH to 111,000,
"iwbytnc ilcolaration is ahovu alleged;" uiiil
the coiichiaiou was, that tlie plaintiffs do recover
£500:" — Held, no irregularity, the judgment
being supported by the confession. Foli/ir vl nl.
V. Mi-Cahitm, 1 I'. R. 352. U. L. C'hanib. -
Kobinson.
Where judgment was entered on a cognovit
<luly executed, but without filing an affidavit of
execution:— Held, not a nullity, sotiiat the judg-
ment might l)e set aside at tiie instance of other
creditors of defendant, Ijut an irregularity only ;
and the affidavit was allowed to be filed after-
wards. Potter V. Pickle, '2 P. R. 391. 1'. C.
Burns.
3. Othir Cnm:i.
In a cognovit (containing the usual undertak-
ing not to bring error or file any bill in equity)
damages were confessed at C.500, and the decla-
ration on the roll laid them at that sum ; the
entry of judgment confessed damages at 1 1,000,
"as by the <lcclaration is above alleged;" and
the conclusion was, that the jtlaintiH's do recover
.-£•500 : — Held, no irregularity, the judgnu^nt
being supported by the confession, ro/i/cr if iil.
V. McCaUitm, 1 P. K. 3o'2. t'. 1,. Chainb.
Robinson.
Semble, that it is not necessary to enter an
apiKJiirance for defe.u'iant in signmg judgment
on cognovit, the defendant coming into court
and confessing being a sufficient appearance ;
and that the court woulil at all events allow
such appearance to be entered nunc pro tunc :
Held, liowever, that in this case the want of an
appearance was not sufficiently shewn, and that
the application was too late. //).
A. and B., executor and executrix, hivving
given a cognovit signed by them jvs executor and
executrix, .and which the plaintiff's attorney led
them to believe would bind them only in their
representative character : — Held, that though the
cognovit might bind them personally in its terms,
a personal judgment entered uj) against them
must be sot aside, (lorrk v. livanl il itl., S (J.
B. 626.— P. C— Melxjan.
Semble, also, thiit the judgment roll, alleging
" a debt due by the testator in his lifetime on
an account stated, in consideration of which the
defendants promised to pay," would not warrant
a judgment against the defendants personally,
but only against them as executor and execu-
trix. Ih.
M., the testator, ilied in November, 1847, in-
debted to the plaintiff in £35, having a])pointed
the defendant his executrix. The account was
continued after his death, and was afterwards
rendered to the defendant and headed as against
■widow Maxwell, and further advances were made
to her from time to time and payments made by
her on account, down to August, 1840 ; the pay-
ments amounting to far more than the debt due
from the testator. In December, 1849, a con-
fession of judgment was obtained from the defen-
dant, as executrix of the testator. On a rule
nisi to set aside the judgment entered on the
confession : — Held by Mc&an, J., that the plain-
tiff, having transferred his claim against the
estate to the individual account with the defen-
dant, and with her assent, and having since
received more than sufficient to cover the debt
of the estate, he could not sever the twiiiiciomii.
and fall l)ack upon tlie estate for tluiaiiKiiint i],,.
at the tcHtator's death, and that the iiilr tin*!
aside the judgment iiiiist be made .iljsului,
without costs. Hiiilti/ V. Md.nn If, | \> l; <•'
-P. ('.-McLean.
To debt on judgment a plea w;is iijcitdwl j,,
effect alleging that the judgment w.i.s ruln^
upon a cognovit in whiuli, tliougli tlie iKimiini
debt w;is admitted to be £200, as siiiil f,,). (ij,'
true debt was only t'Til, which sum was pajd |,,
satisfaction of the judgment : Held, (jh (Uimnf.
rer, plea bad. (.V(»)/'.i v. \i'!l/iim, 8 (,). U. 114
In a defenee like this the proper ediiisu fur
defendant to take is to apply to have satisfat'tidn
entered on the judgment, or to stay |iiiiitT(liii,.>
in the suit upon the judgment, rriiu'lplis di
pleading jirevent the defence iieiiig urged in th.
shape of a ])lea. //'.
Where defendant gave a ediifessinn ^ii t
13th of May, 185(>, containing an agreement tliit I
judgment might be entered at oiiee, Imt im esi-
eution to issue \intil default in jiaynieiitdf asum 1
n.amiMl on tlie Ist of .luiie tlieii next, "willi
interest thereon from this day till jiaid," mil
judgment was not entered till 28th .\\in\, ls.");
Held, that the jilaintif^'s were entitled t(i iiittri>i i
from the date of the cognovit, iint frniii tlu |
entry of judgment tuily. Rnmxini it nl \- i;,f
riill,'i,:'<,'h(i. B. 21. ■
VI. MlSI'KI.I.ANKOl'S C.VSKs.
Where one of the bail to the sherill' li.iil, m |
coiisc(iuence of the defendant leaving the
vince, and under an apprehension tliat he wi'iiM I
not return to defend the cause, given a uogndvit
in his own name to the plaintiff, the enurt, uimn
an affidavit of merits, stayed the jirocefiliiii.'s |
upon cognovit, /{ohrrfx \. Iluslitiin, Tay. .S:'.
Siich order being conditional "niMin iMviiiiiit
of all costs incurred by jtrocecdings against die
sheritt"s b;iil," the court deterniineii tli:it the
costs of the proceedings u[)on the cognovit sluniM
be considered as such costs. Iliixfilmi \. linn-
il'tiji', Tay. 84.
Where a debtor, who absconded from {\\\s\ij«-
viiiec, before his departure gave his eogiiuvit fur
€700 to a iierson to whom he was not indilitnl,
on which judgment was enteieil, e.vecntimi is
sued, and some money mutle by the slicritf, aini
some paid to the plaintiff's attorni^y, the cinirt,
on the athd.vvits and application (if sevcnd IhiiiI
fide creditors of the absconding del)tor, t\ri\a\^
the attorney to pay to the sherill the nmncy lie
had received, and the sheriff to divide all tlie
money l)ctv,'een the creditors who had exei'iitimn
in his hands, ratably, according to their stvml
claims. Bi-njii) v. Piinlni; 3 (>. S. .")74.
(Jiving a e(mfes8ion of judgment, [wyalili' iiu-
mediately, for a sum which is jii.stly due toa
creditor who has pressed for icvymeiit, tkrt
being other creditors, is not a V(dtMitary :u»l
fraudulent procuring of the debtor's giKidstnlt
taken in execution in coiiteni]dati(in nf Kink
niptcy, within the meaning of the H,inknii*y
Act 7 Vict. e. 10. Beekman v. Wm-bim, 1 ^■
B. 531.
When a party had confessed jiidijinent tm
banking institution before the passini! of tie
bankrupt law, with the undergtaiidiiii; tint it
fi;*;
■imrt, in«iii
lirdcc'udiiii.'s I
■\\iy.:\t'
(in iwyiiu'iil
IVllllillst tilt'
IILmI tllllt till'
;Miiviti>lunilil
I hill V. /(l'"l-
•luu thi> inn-
I I'dglllivit iiT
lilt iiiili'litol.
llXfl-lltiiHl i;
i; slifi-itV, ami
!y, the iiiiirt.
sovi'val l«'ii.i
btiir, iinltwl
he nullify lit
ivido all lilt
111 CXCCUtiiillJ
their sevtrsl
.->74.
liuyivhlo ini-
ttly ilui' t" J
vnient, thett
liliintary »i»l
; jfiioilstolit
In in iif l«"i-
l^ankmi'tcy
id-mmi, 1 ^■
tf77
Llgineiit
Tssing of
till
tlK
COLLATERAL SECURITY.
ahould
ataiul I'la" •"* '■* security for notes to l>o diHcoimted
for tilt! I'^rty ; ^"'l l>roceeiliii>{s having boon
threatenoil iifjainst him by othur creditors, tho
hunk issiii'd execution upon the judgment and
soU:-HeM
Severn
tluit the ivssijiiu'cs of tlie bankrupt,
issu.'d aftiT the Hfi/uve, but
(T
wouW not he enforced so bing na ho continued not diacbarKO tho tlofendant's bail.
to pay to the pbiintiff a certain sum every fort-
iiicht, anil it was subsotiucntly agreeii, after
rill payments, that tlic confession
G78
CUirtfr V.
„„ A oiininiission
]iefiire tho sale, cuiilil not recover tlie proceeds i
ill lui at-tiiin for money had and received against |
thu Iwnk. Miiiil'»>ii v. ('niiniiircidl /iaid; '2 (,>. i
K :«8.
\ oiiuft'saion of judgment stated in tho pleml-
j,,' ti, have been given "in coiitemiihition of
hankruytoy, and for tlie iiurpose of giving one of
several creditors, a preference, and with tho
intent to delay and defeat other creditors," is
-well pleailcil. without further adding that it was
.riven within a numth of the issuing of the com-
•nission against the bankrupt, iiniil v. Pirrn,
'sg. B. 538.
A cognovit given in the opinion of the jury
1,V II hankrupt in contemplation of bankruptcy,
ami for the purpose of giving to the defendant a
'reference or priority over bis (the bankrupt's)
leneral creditors, is a security within the li>th
clause of the bankrupt law, and therefore void.
S. C. 7 Q. H. •-'+•
Wlicre a cognovit has been given by a bankrupt
ill fraud of the bankrupt law, and is therefore
with all steps taken umler it void, the ivasigiiees
iif the hankrupt in bringing an acticm against
the sheriff must be looked upon as contending
fur the interest of the creditors, and not merely
js repvescnting the i)erson or estate of the bank-
nipt; they therefore will not be estop])ed, as the
taikrnpt "might, from disputing the valiility of
tlie cognovit and subscijuent ))roceeding8 on the
giwnul of fraud. Paiiloii v. Mimlh; 7 Q. B. 301.
Where the jilaintift' ha<l been guilty of gross
usury in taking a confession of judgment from
ithe ilefeinlant, the court stayeil jiroceedings on
•\k payment of the true delit ,and interest, al-
tlimigli the judgment had been assigned, the
jsiignee having been shewn to have had notice
ti the Hsnry complained of before he took the
iissignnient. ^'iw/v v. Fonrnf, (J «>. S. .'■(."tT.
Senihle, th.at lands may be sidd under a judg-
jmciit confessed by iui executor. />of' d. Lijim \.
,f|(>, 4 Q. H. ."lliO.
I'mler what circumstances an a.^signment made
ly a (lel)tor of his goods to one or more of hid
:mlit<irs, for the beiiclit of theni.selves and others,
iiay he npheld against another creilitor, who
laii seized the same goods in execution ui)on a
indgiiient confessed to him befoi'e the assign-
eiit; See FiirUh v. MrKu'i, ."> (/. li. 4(il.
Plaintiffs were nonsuited for not confessint;
bse, entry, and ouster. Hld)8CijUently to the
rial defendant executed a cognovit : Hebl, \)cr
., iin motion for a new trial, that the fact of
nc defendant having roniessed judgment was a
►aiver cif any formal exception he might have.
Vil. Kfir'rtdl. V. Slioji; !( (). n. 180.
The acceptance of a confession of judgment
kith stay of execution until a jMjriiRl not later
liaii the plaintiti' cmdd otherwise, and iu the
nlinary course, have obtaiuud execution, will
Suinmiii, 4 V. V. 298.
Wheru the object in an action is to set aside a
confession, or a portion of the sum confessed,
the plaintiff in the confcssiim may shew in sup-
port of it the circumstances that constituted the
consideration, and that such confession was to
oi)eratc as a contiiniing security to cover future
as wtdl as past advances. Domiinx* v. Mayer, 5
j(!. I'. 'Ml.
A cognovit payable immediately, given by the
I maker of a note before it falls duo, and judgment
entered ujion it and registered, forms no defence
for the ondoi-ser. Jiaiik of Montreal v. Domjlaa,
17 (i. M. 208.
COIN (OFPENCES RELATING TO.)
.S'cc Crimin.\i. Law.
11.
Iff.
IV.
COLLATERAL SECURITY.
TaKF.N by BaNK.S — See BaNK.S.
Taken by Buildino SoriKTiKs— i?*!^ Bitild-
INO StK'IETIE.S.
Mf.R(iek ok Bills oh Note.s — See Bill,s or
ExrHANIlK AND PHOMIS.SOKY NoTEH.
Effect of, on
(IF Land.
Vendor's Lien— iSee Sale
Held, that the deed as set ont in the pleadings
in this case shewed clearly an intention on the
]>art of tho bank to take it as collateral security,
and not as an assignment in satisfaction of the
notes suetl on. lidiik of Britlnh N'orth America
v. Sherwooil, (i Q. B. 552.
Defendant endorsed to the plaintiffs a note
made by one P. for $125, due 13th May, 1857.
On the 13th April I', executed to tho plaintiffs a
mortgage, payable on the 1st Noveml)er, 1857,
for a sum including the amount of the note ;
but it was expressly agreed in the mortgage that
it should " operate and take effect as a coUatcral
security only :" — Held, that the plaintiffs might
sue upon the note when it fell duo, although the
mortgage was not yet payable. Shaw el ill v.
Crnir/oril, 1(5 Q. B. 101.
Action by H. against M. on a guarantee of a
mortgngt^ maile by one (i,, and assigned by M.
to if rioa, (ui e(|uitablo grounds, that the
mortgage was given by (!. as collateral security
for two notes of t'lOO each, made by Q. to one
W., and endorsed by him, and that said notes
were given to H. (plaintiff) with the mortgage,
and that one note having 1)ecome due H., with-
out notice of presentment and dishonour, and
without defendant's consent, gave O. time, for a
valuable consideration :— Held, on demurrer,
good, and that the defendant as surety was there-
by discharged. J/onrc V. Mitln, 10 V. V. 194.
Action on a note for $350. Plea, that the
note luul been taken as collateral to a mortgage,
in satisfaction of which defendant and plaintiff
had come to a settlement, and defendant had
given a new mortgage for what he owed the
plaintiff, in which the note had thus beoom«
j
• *
1
i ■ ~ ! ■
>. * •
■ [
i\'f.
I
• ; 1
i
•' H
■ ' 1
■ i' 1
i'M
k
!H;,r. :
•1^
If'* ';".,, 'G
It, I:
679
COLLATERAL SECURITY.
CSf)
merjretl —Held, that tlie note having been taken
l>y tne piaintiff as payinuiit of part (if the niort-
gago, and thus suijarated from the niortgagis
dent, tlie plaintifT was entitled to reeover ; and
that from tlie evidence Htated in the ease it
appeared that the note was given for a sum
(luite distinct from the mortgage debt. Iloiilldii
V. MrXdhh, 14 ('. v. 598.
Semble, that defendant's remedy (if any)
bhould be either to have the settlement reopened
on the ground of mistake or fraud, and get tlie
amount of the note adde<l to the mortgage debt,
and extended for ten years, or to treat the settle-
ment as evidence of everything having been paid,
which latter defence would bo covered by a plea
of payment, /h.
Held, on demurrer to the ecjuitable plea set
out in the report of this ease, that a|)art from the
objection as to u perpetual injunction not being
obtainable, the holder of notes, transferred by
the payee as collateral security against a future
liability on the holder's jiart for the payee, can
collect the notes at maturity before the liability
arises, and that the payee has no control over
them so as to enlarge or vary the maker's liability
to pay them. Ifn.i.i v. Timoii, 1!) V. V. •_'!)4.
One M. made a note on the 17th November,
18fi8, payable to T. or order, at three mouths,
at the Queliec Bank, for ^4,000, which was en-
dorsed by T. and the plaintiff, and discounted
by the bank for T. On the ■24th November,
1868, a note for .^1,500 made by \V. payable to
T., and endorsed by M. forT. 'a accommodation,
was handed to the bank by T. as collateral se-
curity for the !J4,000 note, and the bank also
advanced on it $1,000 to T. This note, when it
fell due on the 27th .lanuary, 180!), was retired
by the note sued on, which was for !$l,.'>00, at
two months, made by W, , payable to T. , and
endorsed by T. and by ^^. to the bank, and was
given, as the bank manager swore, for the same
purpose as the previous .$1,500 note. The bank
received $1,200 from T. <jn account of the ^i,0(K)
note, and the plaintiff' paid the balance on the
understanding that the bank would hold the
$1,500 note for his benefit, and they afterwards,
at his request, gave it to their solicitor to sue.
In an action on this note by the plaintitf against
W. & M. :— Held, that he was entitled to re-
cover ; for, 1. He wjvs the hoMer of the note;
2. The note being deposited with the bank as
collateral security for the $4,000 note, and not
merely for the $1,000 advanced on it, the bank
held it for the full .amount ; 3. If the note could
not be said, when taken on the 27th January,
1869, to be a security for value because the
$4,000 note had not then matured, it became so
when the latter note fell due on the 20th l''eb-
ruary, 1869, and value Jirisingat imy time during
tlie currency of a note is suHicieiit. Hlak't v.
Wnhhfl ai, 29 Q. B. 541.
Action for converting certain notes, with a
special count, alleging in substance that defen-
dants held the notes as collateral security f<u'
certain papt r in their hands, to which the plaiu-
tiflf was a party ; and after they had collected
part of them, and the paper had been retiretl,
they collected and applied to their own use the
remaining notes, to which they had ceased to
have any claim. Defendants pleaded, on ccjui-
table grounds, that after receiving the notes,
they were applied to by the plaintiff to accept
in payment of a debt due by him to them tli
note of one A. D. for $1, 147, which thov v^uZ
to do unless one .F. I), would endorse it ; .ind i
I), would not endorse without security, iiinl il,
plaintiff thereupon got defendants' ' am^nt J
write to .1. I)., agreeing to hohl tlie imtos J
(juestion to apidy when collecte<l on tlie iKit, f
.$1,147 ; that. I. "D. <m the faith of tlii«, i.|„i„r,^j
said note, which ilefendants accepted in ii.ivinoiit
and which was renewed from time to tiinu 1,
the proceeds of the notes collected, and r('(li|,n|
in .luly, 1862, to a note for .$477, wliioli iK.te'j
1). took up, and defendants tlieruu|i(]|i tinnstVf!
red to him such of the notes in (nie.stinii ,,!, ...
mained, as they lawfully might ami wov ii„|„|'|
to do : -Held, [ilea good, as shewing,' a lnr;,| ,1,..
fence, (^ua-re, whether it could Ik; sii|i|](iitt',l
as an eijuitable plea, for .f. 1). would jjuv,. i^,,.,,
a necessary party to a bill by tlio plaintill l'„rtlie
recovery anil account of the notes, Mii,il„., ,
liuiik of Toronto, 29 (}. B. .566.
To an action on a promissory note, the dcfen.
dant, an endorser, pleaded, "that lu' ciidiirsoil
the note us surety for the makers ; that It wi!
agreed that the Uiukers shouhl traiislVi- tn the
plaintiffs, as security for the payment of the ii„tt.
by way of mortgage, acertain schooiuT, aiulthat
the plaintiffs agreed to hold the said vissoi fiir
the benefit and indemnity of the deffnilmit ; that
in jiui-siiance of such agreement the vosnoi wiis
assigned to the plaintiffs, and it tlicii'liv l)«aiiit
the duty of the jdaintiffs, when rciiucstL-il hytW
defendant, to sell the vessel, under a pnwit uf
sale contained in the mortgage, fur tiio liciiciit uf
the defendant : that the defeiuiaiit luiiiustwl
plaintiffs to sell said vessel : that the piiiintiiij
refused and iieglecte<l to coni|)ly witii mwh ru-
(juest, and that the vessel was sulisci|ii('iitlv|iwt
whereby the defendants lost tliu bnictit nf tin'
security of the said vessel : -Held, tint it tlif
plea intended to assert that wliurovcr a ( rnhtur
takes a mortgage from a ]>riiicipal (Iclitcir iiitli
power of sale, accompanied with the inTsmial
obligation of a surety, it becoiiios an iiiiiitiafivo
duty imposed upon tlie mortgage I'lvilitur, imnui
the reipiest of the surety, at any tiiiii! tn (ill tin
mortgaged pi'operty upon default cnminittnl, at
the jieril, if he does not do so, of hisiii- tlit
lienefit of the contivict of suretyslii|i, siuli imi
positiim cannot be sustained in l.iw ; ami tliatit
the defendant intended to rely on an expri'ss
agreement to this effect, the eviilcjico wiiiiM ii.it
sustain such contention. finid' of .Vmilrftl v
Dor,,, 21 C. P. 179.
The plaintiff sued as bearer of a iioti' iiiaik
by defendant payable to one Mel... ur luarer.
Defendant pleaded, on e(|uital)l(.' gidinids, that
Mcli. being the hohler of said note. ile|iiisitoilit
with (me Mcl>. as coll.iteral security f(irtlie|iav
ment by said McL of a certain note nf tlieMiJ
Mcli. then held by said McD., which naiil imte
McD, transferred and delivered tn tlie phiiiitilTi,
.111(1 deposited the note in the deolaratiuii iiitii'
tioncd with the plaintiffs, after it liccaiiiKlin'.a*
collateral security ; and that tlu^ Naiil Mel,. mJ.
before the commencement of this suit, retire, \w.
and a.itisfy his said note, iind w.us ami iseiititltil
to a return of the note now sued nii, sn iiclil k
the plaintiffs as collateral security, luiil n the
lawful hohler of said note ; -Held, nn ileimimr,
l)loa bad, for, t. The terms upon whieli tln'imtc
was tranferred to McD., which fnrnieil im i«rt
of the original coiiBideration for which it ns
680
G81
COLLATERAL SECURITY.
'.P3
■11
m
ii]), siu'h |ini-
■,w\ that it
la iiiitt' inaile
III- ln'arer.
L'l'miiuls, tlut
(k'lnisitnl it
|V for the jay-
Ito of the mi
licli itaiii iii'tt
tlio iihiintiffi,
laratiiiii ii»
I'ciuiit'ilue.x
[i.l MiL .lii
It, retire, )«)'.
liil is I'litiiliil
|i, so iicl'i liy
mill is tk
jiii (leiniirw,
lliicli till' 111 ite
]riiieil no [urt
dilcli it w
IN ell, ft"'' to which the (kfeiiilaiit wuh no party, i
flid not coiiHtitute nil ciiiiity iittacliiiig to the
note in tlie idaiiititt's' liaiuU of wliiuli ilufcmlant
KiuW t:ikf ailvaiitago ; and, '2. Tliat even if it
^trc iisKiiiiieil tliat the iihiintill's liad iio lietter
title thiUi Mcl),, Htill Mel>., being tlie hnliler at
...Lturitv. Iiail a vested riglit of action againut
.1 L.fymliint. ( tiHfUfnni tinhk o/ iUmnnm'r v.
Certain wile notes were dt'iiosited with dofen-
iliintaiif oolliiteral seenrity for the iKvynieiit of a
ii'„to eiwloiHcd liy the iilaintiti', ffir the aecoiiiiiio-
litioii of one M.> anil diseoniited hy defeiid.ant.i
firM. '''<' eollaterals wore of the same value
isthe tiriiieinal note, and were to lie paid into
tiu'lMiik, luiil applied on the note, so tliat when
thev were paid, the note also was to he paid, and
the pliniiti" ^ liahilitieH to eease. .After the priii-
ciiiJ note hecaine due, defendants denied that
thtv lielil the sale notes as eollaterals, and refn.sed
til irivc the plaintiff any information as to what
iiail l>t'>!" 1""'^ "'" tl'^""' '""^ t'"^' plaintiff then
mill the note in full, and deinainled an assign-
iiuiit of the eollaterals. The plaintiff's payment
kiiii; ma<le hy a part payment in eiwli, and his
luitefortlie halance, which he paid at maturity :
lldil, tliiit the plaintiff could not inaintaiii trover
ii^aiiist (lufeiidants for the eoUaterals ; for al-
thiiugli nii'ler i*\ N'ict. c. 4"), s. '1, he was entitled
to the iiunieiliate jiossesHion of them, he had not,
until asHigiinient, any property in them vested
inhiui. Ctinilili v. Tlir ^iiii/drd />i.itr!rf Hnid;
■HV.V.%-2.
Sdiihle, that the plaiiitifl's remedy would lie
livasiiecial action on the ease for not a.ssigiiing
till' notes to liini after ileinand duly made, //-.
Helil, however, that the plaintill' Wius entitled to
retiiver ixs niimey liad and received to his use,
tluiammnit paid to defendant on the collaterals,
Mill the fact of his only liaying part of the prin-
ci|ial note ill cash, and giving his note for the
lulaiiee, iliil not take away his right, II).
Semlile, also, that his right would not he
[afcteil even if the iiayment on tlie collaterals
|»as after his payment. /'»,
B., the holiler of i:'-',()00 government dehcn-
Itares, assigned them to defenilants, and delivered
Itiithem his hoinl to secure the interest, uiion
Ivihichthey pa.ssed the full amount to his credit,
|Sul>sei|ueiitly defendants obtained from B, seen-
Irity hy mortgage for the principal as well as the
fiiitoivat, anil for another debt which he owed
Itheiii. I!., about the same time, assigned his
liiitercst in the delKintures to (i. S. 15. ; and the
liWeiiilants afterwards accepted a release of part
|(if the mortgaged property in part payment of
Itlie amount secured liy the mortgage. The
Imiirtgageil property was then sold i)y defcn-
iilant.s for much less than the aintuint of the
|(lelK!iitures, which were afterwards paid in full
Iby the government. It ajipcared, from the de-
Ifemlaiits' hooks and their communications with
Itlie giiverninent, that they did not consider tliem-
Vlves entitled to both sums: -Held, that the
plaiiititt, who was tlu! assignee of <l, S. 15, '»
Jintcrest in the debentures, was entitled to the
limiceeiis of the property solil, ('oivrf v. liaid'
jo/ UpiD-r Vanmid, 3 C'hy. 24<5.
A jiiilgmeiit creditor coming in to redeem a
nortgiuje incunihrancer Is cntitle«l, upon pay-
nciit of the amiunit due to the mortgagee, to an
aHsignnuMit not only of the mortgaged ])reniiHea,
but of all e(dlateral securities, whether the same
lie subject to the lien of the creditor under the
judgment or not. Therefore where judgment
had l>eeii recovered and duly registered against
a jiarty who had a contingent interest in real
and personal lU'operty, siiliject to a mortgage
exi'cutt'd liy w.iy of si'curity for advances, and
the debtor having elVccted an insurance n|ioiihis
life, which be had also assigned to the same
[•ersoii as an indemnity against loss in respect of
a bond executed by liini as surety for the debtor:
Held, that the jndgmeiit creditor of the mort-
gagor upon paying the aniount due under the
mortgage and indemnifying the nioitgagee in
respect of his li.ibility as surety, was entitled
to a transfer of the policy of insurance, and also
of the iniutgage upon the contiiiL'cnt interest,
and to foreclo.se the mortgagor in default of pay-
ment. (liliiKiiir \. ('iiiinniii, (i ( 'by. "JIK),
Land scrip was deposited with a (larty as
collateral security, who sold tlii' same at a dis-
count : Held, that if on taking an account it
should appear the sale bad been eU'eetcd before
any ilefault in payment, he must be charged
with the aniount of the present value, but if
after default, then with the value at the time of
the sale. Ifm-f v. Hnii-ii, ' ('by. !t7.
A persfui who is surety for .another, and holds
collateral securities, is not bound to wait until
he bad paid the debt of the principal before ho
assigni: such securities, but may do so at any
time to the creditor in discharge of his liability.
I>,iti,ii v. Wilh-H, 8 Ohy. '2W2.
A person holding mortgages in trust for sale
to indemnify him against loss on account of the
mortgagor, is not entitled to foreclose in case ■■''
defanlt ; the only decree to which he is entitled
is to sidl, allowing the mortgagor the usual time
for redemption. //(.
Where bonds were given for the payment of a
certain sum of money and interest in twenty
years, and also niortgages of lands, redeemable
in ten years, as security for the payinent of the
principal money of the bonds: jfeld, that a
breach of covenant to pay interest on the bonds
did not accelerate the right of the iiiortgiigees
^o proceed upon the iiinrtg.ages ; but they were
entitled to a decree for sale of other bonds given
as collateral security. (Inni W'l sfirii Ii. ]\ . Co,
v. (liilt ami <l,ii-li>hl{. W. Co., ,S Chy. 28.1
.•\n action at law having been linrngbt upon a
lU'oliiissory note, the defendant pleaded that it
bad tteen given as collateral security for another
debt which b:ul been |)aid, but ;ulduced no evi-
dence to est;il>lish this fact : Held, in a suit
afterwards instituted in the court of Chancery
to enforce the charge of the judgment against
lands, that he wa.s precluded from shewing any
payment prior to the tin of ])lea jileadeil,
Ksteii, \'.('., diss. Cor/M'iili I v. Thi- Commerckil
hank; 2 K. * .V. 111.
A debtor gave a mortg.age to his creditor as
collateral security for a debt for which another
person (H.) was surety. The creditiu- afterwards
olitained judgment again-^t the surety (H.) for
the debt, and placed an execution in the sheriff's
hands against his goods. A creditor of the
surety subseijueutly })laced an execution in the
same sheriff's hands ; and, there not being goods
enough to pay both executions, lie paid off the
m
,4JI
i' i*.'i
■wf!
G83
COMMISSION MERCHANTS.
m
m
iint uxuuutioii and took nii lutHiguiuuiit of the j
liiortgikgo : -Huld, that liu wna ulititluil to liold
tliu niortuitge to tliu uxteiit of xtu'li iniyiiiuiit, aH
ii>{aili8t Ujo ]ikiiititr, to whom tlic niiroty, H.,
ikftur hoth oxucutioiiH won; deliverotl to tho
Hhsritt', had iiHsignud \\in iiituruMt in tla- inoi'tgagc
to souiiro jinothur duht. (lurritl v, Jit/iiKlimf,
i:\ C'hy. 3li.
A decree was niidi; for tlie forei'losiiri! of a
inoi'tgagu of tllOO witli iiit'.'i'i'Ht. It ap|ie iivd liy
defend:iiit'H evidence in the master's olliee tliat
no money w.isHdvaneed l>y tlie mortgagees ; ami
tho court held, cliietly on the coiidiict of tlie
parties, and the circumstances of the case, that
the mortgage was intended as a security for a
note of the mortgagor's, endorseil l)y the mort-
gagees contemjioraneously with the (execution
of tlie mortgage, and for any suhse(iuent trans-
aetiona witli tiie mortgagor growing out of it.
Brownli'i' V. ('iiiiiihuihiiiii, \'A V\\y. ")S(!.
A mortgage was given hy the maker of eert.iin
notes as coUaterid security to an accoimnoilation
enilorser, which notes were duly retired tiy tlie
maker. Snhsuijuently the mortgagor g.vve other
notes to the mortgagee, when it was verhilly
agreed that the mortgage should l)e retained liy
the eiidoi-ser as an indemnity for such suhse-
nueut notes : — Held, that tlie eiulorser was en-
titled to retain such security to the exclusion of
other creditors of the mortgagor. Mnrrixoii v.
RoluHHoii, 1!» Chy. 480.
The rule in respect of com]iositions hetweeii a j
debtor and his creditors is, that a creditor can- |
not appear to concur in the composition and ;
sigii the deed, and at the same time stipulate for
a separate henelit to himself outside thereof.
However, where uuoii an agreement between a
debtor and his creditors for an extension of time
for payment of his liabilities, the deed of agree-
ment stated that itslnmld not "att'ect any mort-
gage, hypothec, lien, or collateral security held
by any such creditor as security for any of said
debts :"— -Held, that a creditor whose claim wius
fully secureil by a mortgage on real estate and
other collaterals, was not bound to cuminuuicate
that fact to the other creditors at or before
executing the deed of extension, /lini/i r.inn v.
MiU-ilunaU, 20 CJhy. .13-1.
COLLK(JES.
.V'T TIi'liov ('(I .I.F.OK Kivu's ('oi.i.Kiii; (^rKKv,
CoLI.KOK.
COLIJX'TORS.
I. OkTaxk.s.
1. Gemrollij — SVv Assessmknt and Taxks.
2. Roll- uf, hi Miiiilri/tiil Elcrliimn — Sec
Ml'NICIPAU CoKl'ORATIONS.
II. Of Customs— .S'fc Rkveni'e.
COLLI.srON.
I. On UaII.WAVS Svr Nnill.KiKNri-: II,, I.
WAV.S AND KaII.WAV ('oM|\mks
II. On Watrk .V^^»' .Smi'.
{!oM]vn.ssAHr.vr.
Si-i' Orknanck.
COMMI.SSION.
I. To KXAMINK WlTNESSRS -,SV< KvihKNi E,
IF. Ok I.INACV Si'V f,I^NATIr.
III. To KXAMINK INTO MllNICD'AI. .Vkkaiks-
.SVc MlfNICIl'AI. CoKPOK.VrioNs.
nOMMI.S.SION MERCHANTS,
I. HkoKKKS -.SVc RKOKKItS.
II. Ka( Tons .SVc F.iCTOKS.
A collector who conimita a trespass while
acting under a warrant issued by a competent
authority is entitled to notice of action, and the
action should be brought within six months.
tipnj V. Mumbii, 1 1 C. V. 285.
A collector is responsible for the acts of liis
bailiff holding legal authority (by warrant) from
him BO to act, and an .iction will lie against them
jointly. C'orbeft v. Juhiixtou el til., 11 C. l*. 317.
See, aluo, From- v. Pwje, 18 Q. B. 327.
On the foUowing guarantee signed iiy ikfcii-
dant: " Whereiw II. H. &C0. of AHniiy Imvu
authorized S. and.l., of Houghton, ( '.uiail;i WVst,
to draw on them to the amimiit of .S."),()U()j aiii
whereas the said >S. and .1. promise ami agft'c tn
ship to the said H. H. & Co., asulHcifiiti|iiiii:tity
of lumber in the months of .May, .liiiie, .Inlv
and August next, to jiay the same. .Now, tlicn'-
fore, in consideration of ^l to me in liuiil ]i:uil,
I hereby guarantee to Me.ssrs. H. II. it ('u. tint
tho lumber shall go forward agreeal)l\' to tun-
tr.ict, and in default of tlie same, I will lio ro-
sponsible to them to tho amount of the advaiiuu,
the same not exceeding S."», 000:" Held, tbttW
defendant was not entitled to credit, as agaiint
his guarantie, for the gross value of the lumlw
sent, but that the plaintitl's were eiititleil ti
deduct their charges. H'nilni v. ('iinim\mi.\fi
I). H. 222.
Action against defendant as ln'oker ami (niii
mission agent, for negligence in <leliveriiij,'gi««l!
to the purchaser without the price hciiig iiail,
and for not using due care that tlie imixli.i*r
was .solvent. Evidence — Verdict fur pliiiiititf-
Xew trial granted on payment of costs. />W«
V. (loKilnioiiiih, TiQ. V. MiS.
" Received of six Imixos of axe.'*, to !k
sold for him on commission, and when snW, I
agree to iiccount to him for those sdMatthcrate
ot, &c., and to return the roinaiiMler uiiadlil "U
demand :" -Hehl, that an action for gmAi *ilil
and delivered wouhl not lie for any uf theases
not returneil. DikUIk v. Duniiitl, ."> Q. B. lii.1.
Qua're, as to the measure of damages recover-
able on a breach of contract hy ilefeiuliUits,
conimiBsion merchants, to advaiice iiiouey to
plaintiff, a miller, for the purpose of carrjing
m
COMMISSION MERCHANTS.
68fi
nil hi" liiisinnHH, upon thu nucurity of llimr ooii-
,ij,,n,il hy him to ilufoii<liiiit« lor .sali'. Jfi/ili v.
(■;arhitni-l"'.,C>^'. I'. •2\.
Hclil, midor the Uw.U provud in thiMciiHi^ that
the niiil'tKf'M" '">' l'l"'"tiH to (h't'ciiihiiitM of \\'\h
i,iill ti> siiin'i' uilviiiiceH on liiw Hour to )n'. iniulc
livilefeiiiliiutH ft« i'oninii«Mioii int'ivhantH, was not
tolietreatoil iiM HuperHtMlini,' tin; parol agrconuMit
l,ir inch ailviinct'H, or as HJiiiwiny ii (litl'iMuut
iiiTetiueiit from that ovinoeil hy tin; lotteri*. //'.
Hilil, iilt«i> that the ilefeiiilantM were entitleil,
suliii'it'tii plaintitf'H ehoii^e of market, to ri'ini-
h\m tlienii*flves for advani'oH alreaiiy niacle l>y
tlu' Hfile "f ■■'" *"'^''' "'""' "" *''"^'y '""^ olitaineil
delivery enlers for from plaintitf. Ih.
II, A miller, employed <!. & ('o., eoinniinHion
imriimnts, to disiiohe of his manufactured tlour,
mi ciiinmisHiou. He al«o exerciHcd a eontnd over
tlie market in wliieli the Hour was to he sold.
Mil in 11. and other certain nuirketM allowed (1.
JtCii. thi' charge for ayeiu:y for etfectinj; xaleH
llnri', in addition to their UHUal counuisHum : i
HcM,' tliiit although (i. & Co. were not fact(U-H I
witli'ailel erediTc eoniniission, they and not H. j
«iifliiil)le for a Iohh occiVHioned by thu failure of !
linikers whom they emidoyed, and who had |
rcicivfil thu proceeds of sali^K of H.'s Hour ut 1!. ,
CJu-liiim V. ////'/<•, (■)«!. V. 'M\. \
I'laintitl' lieing employed to purchawe and whip
liimljiT for defi!udant on connnisnion, attempted
t.i imrL'iia«e a large (juantity from I'., imfc was
imalilu t(i agree as to terms, and the negotiation
was linikt'U off. Afterwards 1*. anil defendant
agneil mi ti'iniis of sale, and defendant purchaseil.
flie court set aside a verdict for plaintiH" for his
iimminsinn, with costs to aliide the event, on
the grnmiil that the evidence lUd not sustain it.
JiiiiMlw SiKitr, fiC. I'. 04.
jledaration, that in consideration that the
I lilaintiff, at defendants' reipiest, liad consigned
Ijiiishipiied certain wheat to Messrs. ('. & B. at
lltswego, (lefundiuits promised to advance him a
[ctrtaiii8iini thereon, and to sell it for him within
Ithirtydays, and jiuy over the procee<ls, less the
julvance and charges, &e. ; that the defendants
lilid make the advance, but did not sell tlic
(wheat ;— Held, had, on (leinurrer to the pleas,
|«8iint shewing a sutHeient consideration. Hehl,
Itlso, that if tlie promise had been binding, it
Iwould l)c a gi)fid defence that the wheat was
■lost licfore it came into defendants' possession.
ISco the pleas set out in the case, anil the ini-
IliresBiou of the court upon them, though their
Ivalidity is not expressly decided. Marliilt v.
Ymxkrkimi'lal., 14 Q. B. '22I.
Defendant obtained an jwlvance f ntm plaintitYs
|on wheat which he had shipped from ( takville
(tswego, consigned to them, to the care of
let B. The plaintiflFs were to sell the wheat for
[defendaiit, anil iiay him the proceeds, deducting
phc advance ami charges, &c. The wheat having
w lost on the passage, — Held, that defendant
Was Iwund to refund the sum advanced, as the
»beat still continued his property. Oixxlerfiam
ilnl.wMarlalt, 14 Q. B. 228.
Defendant at the trial desired to prove that
»lien the advance was made the plaintitt's were
hl»ken to alwut insuring the wheat, and replied
hat they were their own insurers, and took the
i«k of wheat shipped on their account : — Held^
that Much evidence wa.s rightly rrji.'cted ; and
that if adniittcd it would not have ull'tcted de-
fendant's liability. I /i.
I'laintiD's, being I'oniiniKHiini incrchantM in N.
^'., ivci'ivi'd fioiii di'fcmlaiit.s a ifuantity of
wheat, with instriicliouH to ship it to 1,. for sale
there, not limiting thcin uii to price, nor direct-
ing the employment of any |iartii'ular agent;
and they made advances upon it, which as they
alleged exceeded the net proceeilH of the sales,
one cargo having realized more than the ad
vaiices, the other two cargoes much less. In an
aitioii for the excess thus advanced, the plain-
tills proved that they had mailed to defendant
the account sales received liy Hiem from their
I., agents, with an account lietween plaintitt's
and defendants founiled upon them, and that
these account sales were afterwards seen in his
possession ; unil evidence was given that the
wheat Mas in a bad condition wlien shipped, as
defendant kiu^w ; that the prices ivali/.ed were
what might have been expected, ;uid the charges
such as were usual. It appeared, also, that part
of the wheat belonged to one .1., and that on
receiving the Hrst account sales shewing a profit,
the defeiiilaiit had settled with him. This cargo,
however, had not been consigned to the same
agents as the other two. The jury having found
for the plaintill's : Held, that the evidence waK
not sutlicieiit to shew the price for which tin
wheat was sold, nor the amount of charges con-
nected with the sales ; and a new trial was
therefore granted, with costs to abide the event.
Vni!,/ V. Corcoran, 'IW (.). H. 441.
defendant living at (.'., consigned to the plain-
tiff' at M. certain tobacco for sale, and, without
authority, drew upon him at the same time for
!J2.')0, which the ]daintitt' accepted and paid.
The jtrice which (iefendnnt asked could not be
obtained in M., and the phiintitt' therefore
shipped the tobacco to K., where it was sohl.
The net proceeds, after deducting freight and
charges, were only tl4 sterling, and lie sued
defendant upon the common counts for the dif-
ference, $278, the expenses of shipping being also
deducted. Defendant pleaded never indebted,
payment, and .sut-otl'. When the draft fell due
defendant had written to the plaintiff', offering
to raise funds to retire it by drawing upon him
again. The account sales received by the plain-
tiff' fnun Vj. had been sent the defendant, who
said, on receiving them, that he did not think
he ought to bear the whole loss, butoff'ered^l50,
The jury gave a verdict for :!?200 : — Held, there
i being no evidence of any special contract, that
i the ]daintitt' was entitled to recover his advances
j without waiting for the sale of thi! tobacco ; and
' that if he had done wrong in his dealings with
it, such defence should have been pleaded. The
verdict was therefore uiiheld. Sti-warf v. Lowe,
24 Q. B. 4.S4.
Defendant, at B., consigned for sale to the
plaintitT, a commission merchant at M., a lot of
butter for sale, and drew nj)on him at live days
for iif2,000, which the plaintiflf .iccepted, and paid
at maturity. At that time his instructions were
not to sell for less than IS^e. per lb., which he
could not get. The market continued to fall,
and after a len|{thy correspondence the butter
wiis sent to plaintiff's agent at H., who wrote
that no sale could be effected there, and advising
J. Plaintiff then sued defendant upon the com-
':' ■
iv
JA>'
1/ Hif^'F'!!
V': i
w\
nil
ni^
a
1
1
1
667
COMMISSION MEUCHANTS.
I'lM
nion uountM fur the ninniiy paiil \>y liiiii : Mulil,
tliitt lit! wiut ciititlt'il til I'cciivi!!', iiikI tli.'it tlii'i'o
wiiH iiiitliiii^ ill tlio I'lictM, iiuirv liilly Net nut in
tliu ciiHc, to vary till! i'iiiiiiiii>ii law iilili^atinii t(i
n'fiiiiil till' Hilviiiu'o oil riM|iU!Ht, or to I'oiniu'l tlif
pliuiititt' to wait until ii Hitlu hIioiiIiI Ihi ctVuctuil, '
Vuirir V. .l/'/'i, I'-M'. I'. ."iS'J. j
At tliu trial ilufuiuliuit tuiuktrutl uviit iiicu to I
*li(!W tliti iiiuaiiiii>{ of t'axli uilvanrcN iiiailo liy '
coniiiiiHHioii iii('ri'liaiit.i on urcount of j^'ooiIh coii-
Higiiutl to tlii'in for Hail-, ami tlio iiMiial inai'tiri'
HH to t'oiuniiNHioii inci'i'hantH I'l'iinliursing tlinii-
NolvoH for Hiicli ailvaiK'i!)* ; llulil, that niii'Ii ovi-
iliiiici! wan [iroporly ri'jt'oteil. //).
Tliu ik't'laratioii statcil tliiit ili'friiiliintu covo
naiitvil with plaintin'M that tliu [ilaiiitill'ii hIiouIiI
liiaku thuiii ailvaiiL'uM I'ithi'r in inoiioy or wool :
that ilufoiulantM woiilil luiy wool with iiioni.'yM
ailvanccil : that i\w phiintill's nIiouIiI have a liuii
on all tlut woo], anil inigiit iimuro it ami o)iar>;o
the |irrniiuin aNailvaiu'cx : that the wool an iiiaini
faetureil hIiouM he eoiisigiieil to the {ilaintitf'H for
Hale : that the plaintiU'M shoulil he entitleil to
1^ per eeiit. eiiiiiiniMHioii on ailviiiieeH, ami •"> jier
cent, on HaK'M, ami that the iilaintillH hIioiiIiI
credit priieeeils of sales to ili'femlant after ile-
diieting the ailvaiiecM ami eoniiiiiHsioii, Aver-
ment, that the iilaintillH inaile ailvanees, paiil
inMuraiici'N, ami inaile sales, ami ereiliteil ilefeii-
ilaiitH with th(! jiroeeeils, less the ailvances ami
eoiiiniissioii, wherehyiilaiiititi'slioeaine entitled, in
addition to the halaneesihu! to them foradvaiii.'es
and interest, to large sums for commission under
the agreement ; and that upon the elosing of the
agreeiuent there was due to the plaintitt's a large
Hum, as a balance due thereunder, which defen-
dants had not paid : Held, on demurrer, I.
That upon the sale of all the goods delivered liy
defendantH to the plaintitl', an action might lie
on the CDveimnt forany balance due to the plain
titfs for advances and eommiissioii, as a liability
to lie implied from the tenor of the agreement ;
2. That the expression "u])i)n the closing of the
agreement," was not eipiivalent to an averment
that plaintitls had no goods of the defendantH
still on hand to be sold ; and that the declara-
tion was therefore insutticient. Yiiitini if. <il. v.
CniMUiiiil it III., ISC. 1". 31'-'.
Held, that upon the evidence wet out in this
ease the defendants were ,'icting as principals,
not as agents for the purchasers, and therefore
cnuhl not charge commission. Mackli-m itiil. v.
Thuniiil III., 30 y. 15. 4{i4.
Defendant agreed with the plaintitl' that if the
plaintiff would find him a imrchaser for his farm
at *(),000, and get not le'ss than 81, (XK) down,
he wouhl pay him ^'JOO. The plaintiff found a
purchaser at ^t),000, who paid only .?500 down,
but the defendant accepted and sold to him,
and it was proved that after the sale defeudant
Jiromised the plaintiff to pay him the $200. The
udge of the ('ounty (!ourt, before whom the
case was tried without a jury, having found for
the plaintiff for if200 upon the coninion count :
Held, on appeal, that defendant having accepted
and dealt with the purchaser found by the
plaintiff, though not such a purchaser as the
agreement called for, the plaintiff was entitled to
recover the value of his services on the common
count ; and that as the defendant ha<l promised
to pay the J200, the verdict was right, iVi/cott
V. VampMl, 31 Q. B. 584.
The defundantM, wishing to intnidiii,. .,„
called blue ore into I'eiinNylvania, '■oriiN|„,|,|| j
«ith th«' plaiiitilf at rittsliiirg. 'I'lihuiuh ti
iilaintilf's intervention an aun eiiirnt u,,;,,,, |'
lietweeii (•. ,V Cii. and defemlaiilH tor tin Hill,.',
l.*i,(NK) tons, to Ik delivered Ih'Ihiv tlir i,i l
August, IS72, with ail option to (I. ,^c,, ,
order any numlterof tons from l(),(NN) t,, ,'liiiiiii
during ttie li\e years from the Ist u| I'llun;,,.,
IST.'J, and a formal contract was siili.Hi,|in.iiti,'
executed. On the above sale lieiii)^' iHnt.il ('
defendants' managing director, wmtc |i|,ii'|,.|(
timt a commission of lifteeii cents per id), i,,,|'ij
be paid him on that sale, and tliiit In. y,,,l\
make him the following otb-r fur tlic fiituri" '
will give you a commission of ten iinu |],.|
for all ore introduced to any fiiruiuc, tliat l» •
the :irst sale made to any furnaic ; :iiid a lim
mission of live cents pt'r ton for all lijiii' mv i.l
the years i«7:», 4, .'i, (J. 7, that is, f,,r live v,.,,ii ■
froii' the Ist of .lanuary, IH7.'{; and I iiiakC \ ,r |
the sole agent for the sale of Ithieoie I'df Wisut' I
I'liiiiisylvania. " The defendants paid iilaiiitijl
the lifteen cents on the ir),(KK) toiin ; liiit().,vi;
having exercised their option, and unlcivd t||, I
:<0, 000 tons, plaintiff claimed that lie wa.siiititl4
to a commi.ssioii of live cents per tun mi tli.
.'{0,(KM> tons, and brought this actinii tlunlur
Meld, that he tould not recovi'i', as tlir ajrn, I
meiit to give (Ive cents per ton on all saksdiinnj
the five years, referred to future s.ije.i, and ii„i
to any amount ordered by (>. * (',.. niukr tlmti
contract. Tiii/lur v. Tlir ''„/;,»„■,, />,7,,,./„„.„„, J
((/((/ Miiniinrn Jlailiiun/ innl .\/iiiiiiii ('a •'.} (
I'. 200. . , -
Held, also, that proof merely that ('. vA
defendants' managing director was imt siiltidinj
evidence under Ki \'ict. c. 25,S, ss. |(), 'Jo, nf ('.
authority to enter into the contract with {i|;iiii|
titf; but it should have been shewn that Ins. vi|
was in accordance with the powers cuiifcrriil (tl
him. /h.
Held, also, that the plaintitl' was imt iiii agent!
within sec. 17, so as to reiiuire his aiiiMiiiitnunil
by liy-law. //*.
A merchant agreed in writiii;,' hi adv,iiu«|
money for the puriiosc of getting imt tiniUr, Ul
lie forwarded to him fit <). for .sale ; ftirwiiiilil
advances he was to be paid certain ciinuni.'isi.iinl
The timber was duly forwanlcil tu liini iiiiliel
autumn ; but, prices being low, he, witli tiiel
assent of the other party, held tlic tiinlKfimrJ
till the following spring, and elaiiiuil iiittrt,<t|
on his advances trom the Ist of Ueciinki Ktil
the sale of the timber, the rase imt luiiij' |rii-
vid(Ml for by the agree\iiciit. It .iiiinainl ikitl
it had been customary in thi! trade to iharjej
interest in such cases, where tliero was imt »
writing ; but there was no eviileiicc uf »
custom being known to the plaintitl : KrM.tlutl
interest could not be charged. .Mnwat, V, l.,|
diss. Ih' Hi-rtfl v. .Vh/j/z/c, I;< Cliy. (14*;
Chy. 421.
Where parties entered into an agreement tki
they should }iurchase gooils mi jniiit aaviiit^
and at the joint risk, and that mu' nf tlienuiiei
shouhl furnish the funds in the tirst iiistaiw.ilj
was- -Hehl, that interest could not lie eluri)
on the fumls so furnished. Jaril'tm v. //if, H
Chy. 7ti.
In such a case a finn in C. wm toailviuieell
funds, and the gooda were tu hu uou
m
r.89
OOMPENSATTON.
r!!)0
■•in
ul« to their firm in li., which wont tiy iidiH'erent
n»m«:— H"'''' '^"^ ^''•'y *=""'•' ""t cliftrgu com-
miMion on their sales. Il>.
Threu nii'iitlm licforutlie tiling of a t>ill renjioct-
inffthf partniTHhii), accoiintH hail Iti'cii furniHhctl
ill wliioii intoroHt an<l iMininiiHiiion wen; charged,
aud iKiii'" "f ''"' l"'rtnerH hinl liefurn Huit huu-
ucnti'il tiitil' iilijettiiiUM ti( thiiHfchuigrK : lU'id,
tlmttiiey were not precluded liy this delay from
„),jecting thereto in the nnit. //..
COMMISSIoNKns.
I, For TAKtNii Akkidavits.
1, r;.H(/((//,v- .sVf AKrrD.vviT.
2. '/'() hold III Bail— fire Amhkst.
II, BoiNUAKV \ASK — Sn' Hol'NDAKY LiNE
('oMMI.HNU)NEHS.
III. Of (niiian Lands -.SV»' Indian Lands.
IV. F(IK KoHFEITED ESTATKH- Sri- iNQirisiTION.
V. Fob Inqi'IHY intd Mi'NinrAi. Fina.nces
■SW' Ml'NICirAL ('oKI'l)RATD)NM.
VI. Of I'oi.K'K— .SVc Polh'E.
Vll. Or Turnpike Tkuht — iSfcf Tihnpike
Trust.
CiimmiMioners, appointed under an act of i)ar-
liaineiit, t'mi)Ioyiiig iiersoni? to make a maeadani-
ijfil niail, are not perHonally rcapoiiHible. Siw
s. Urn it III., T. T. ."ift 4 Viet.
Assumpsit does not lie against the commis-
liiiiicriKif the St. I>awrence canal, under .3 Will.
r IV. o. 17, for the work done on tiie canal on a
[ contract miule with them, unlesH it can Iju spe
['ciallv shewn that they made themselves pcr-
kunallyliiihle, as they must he considered merely
iMtlif agents of the government. Ta'it v. Iliimil-
^,«, (i 0. S. 8!).
Held, that tiie ennnnissioners for the town of
i'eterlMmiugli, appointed Ity '2\ \'ict. c. (»1, are
uit a eorporation, and cannot be sued us such,
['jjiiii tills (il)juution to the deelaratitm, the action
|ru held not sustainable, this court being of
ipiniiMi that they should be sued bv name,
Ming their statutory designation. 7 Ac (Jimi-
ViMiiiHrniif the /'Hirlioroii'ih Tmrn Triinl, A/i-
ttlluulii, mill Ciirli mill', Ri'Mjiiiiiili'iit, I'AV. V. III.
II
C'OMMITMKNT.
.Arrest .sVc Arrest.
.SVc An'AciiMEN'r ok the
BV-VlTAtilMKNT
Person.
1. To Close Cistodv .SV
V. Hv Maoistratks — .SVi
Peace.
.ViTioN Koit Wkoniikiu Commitment- -.SV(
Trespass.
Bail.
Jl'.STK'BS OF THE
COMMITTEK.
:I. Pemonai. Liabiutv .tv Membehs
Contract.
|II. Ue a Lunatic— See Lunatic.
44
COMMON CARHIKK.S.
Ste Cakhiehm.
COMMON COUNTS.
MoNKV ColNlS .SaI.E ok (illoDS-
Land Work and Laiioik.
Sale ok
IndebitatuH aRsumjmit will lie for chattels, if
their value beset forth in the deck ration. Lister
V. H'lO/r/i, ti O. S. '2Mi.
COMMON SCHOOL.S.
tSir I'rnLic S('H(Hti,.s.
COMMONS, HOUSE OF
.SV*" I'ari.iamknt.
COMPANY.
.SVc Corporation.
II.
111.
IV.
V.
VI.
Vll.
C(>MrENSATION.
Damaoks (Jenehai.ia — Sie Damaoes.
In Actions for Specific Performance
-.SVc Specific Performance.
For 'I'AKiNti Lands or Executinc*
Works .SVc Hailwaym and Rail-
way Companies.
-.SVc Improvements
For Improvements-
ON Land.
To Aiients— .SVc Principal AND Aiient.
To Executors— .SVr Execctors and Ai>-
.MINISTRATOR.S.
'i'o Trustees— .sVp Trusts and Tru.stees.
The growing crops on land are part of and
go with the freehold when it is sold. When,
therefore, a tenant in possession at the time of
sale carried away the growing crops, compensa-
tion was granted to tlie purchaser out of the
purchase money ; and the same order was made
to extend to taxes due on the land and unpaid.
Sli'iriirl v. Jliinlir, '2 Chy. Chamb. .335. —Taylor,
Si'm'tiiri/.
The claim of a debtor to coinpn.sation for
misrepresentation of jiarties in obtaining a patent
of land is noi liable to be seized, attached, or
ae(piestered before the amount is determined by
deci-ec or otherwise. HoberU v. The VorjHtruliim
o/lhi' ('ill/ of Tiinmlo, 10 Chy. 23(>.
A purchaser by takiug a conveyance or vesting
order waives all objections to the title. He
•'*'*''' i also takes upon himself the resuonaibility of
obtainiui^ pr.ascBsion, and if evicted by a title to
which hia covenants do not extend, he has no
i i i
m ■irw
C91
COMPROMISING.
692
■ i\
right to compensation on tliat account. Bull v.
Harper, 6 P. E. 36.— Cliy. Chamb.— Holmested,
Keftree.
MisdcBcription in the advertisement is a
ground f9r compensation even after convey-
ance. Ih.
COMPOSITION.
See. Bankruptcy and Insolvency.
A composition where lands are not concerned,
or an assignment of goods which wouhl not fall
within the Statute of Frauds, is valid by parol.
Brumkill v. Metcalf, 2 C. P. 431.
COMPOUNDINO.
I. Penal Actions — See. Penal Action.
II. PEoaacuTiONa— to Compromihin<i.
COMPROMISING.
I. Prosecutions, 691. j
II. Actions.
1. Oenerally, 691.
2. Penal Actions— Vv.^xi. Actions.
3. Aiitliority of Attorney or Solicitor — See
Attorney and Solicitor.
I. Prosecutions.
An agreement not to proceed in a prosecution
for permitting unlawful gambling in a tavern, is
an illegal consideration for a promissory note.
Dwight V. ElUworth, 9 Q. B. 539.
To support a plea that a note was given in
consideration of forbearance to proceed in a
prosecution for felony, the particular nature of
the charge should be proved. Henry v. Uttle,
11 Q. B. 296.
The legislature of Ontario having passed an
act to ri;gulate tavern and shop licenses, 32 Vict.
c 32, under the power given to them by the H.
N. A. Act, 1867, s. 92, sub-ss. 9, 16 :— Held, that
they had power under sub-s. 15, to enact that
any person who, having violated any of the pro-
visions of the act, should compromise tlu! of-
fence, and any person who should be a party to
such compromise, should on conviction be im-
prisoned in the common gaol for three months ;
and that such enactment was not opposed to
sec. 91, sub-s. 27, by wliich the crn.'ual law is
assigned exclusively to tlie Dominion parliament,
Jiegina v. Boardman, 30 V. B. 553.
II. Actions.
1. Generally.
The plaintiffs sued the defendant for SI.IO,
money lent, to which the defendant pleaded a set-
off against L , one of the plaintiffs, accepted by
L. in satisfaction. It appeared that the defen-
dant having built a house for L., cross demands
arose out of the contract, and their aolicitfln
negotiated for a settlement : that the §I50 „jj
mentioned, and L. 's solicitor offered to pay Jovi
in full of all matters, taking this .$1,50 ^jntc,
account as a credit to L. The defendant refus^^i
to take less than !J700, and sued L., wliose suli-
citor, before he was aware of the suit, paid %;i^
and afterwards paid fSO into court, whiih wi,
taken out. The jury were asked whetlior L n!
his attorney agreed absolutely to allow tlie HV-a
as a i)aynient on the contract, or only fur'tiit
sake of a settlement, which was not arrived at •
to which the defendant ol)jected, that if tlij
negotiations proceeded on the suppositidii tliat
the 8150 was to be so allowed, and L afterwanlj
paid the ■?700 on a different untlerstandiiJ ht
was bound so to state at the time : - Held, that
the direction was right, and a verdict for the
plaintiff was upheld. Yoiina el nl. v. Taulor
25 Q. B. 583. '
It is the duty of a party setting up that a |
settlement of a claim for injuries lias bet
obtained by misrepresentation, to establish nJi I
only that the settlement has been so ol)taiiieil,
but also that the amount paid is an inadequate
compensation for such injuries ; and where then
was an entire failure of evidence on the latter |
point, a new trial was granted on payment of
costs. " ^ ' "
P. 500.
Rowe v. Grand Trnnk H. W. t.'o., IDC.
The plaintiffs having filed a Inll fur s\iic\k j
performance of a contract by one U. to sell a
certain mine to them, it was agreed lietMemj
plaintiffs and T., one of the now defeiidantsf
pending such suit, that certain i)er.S(]iis shuiili
purchase said mine from the plaintitrs : tliat|
they should deposit the money re(iuirud tor the
security for costs, whii'li the plaintitfs liii<liH.tii i
ordered to give in said suit, and pay all insts I
incurred or to be incurred therein, or any uthirl
suit Ijrought or defended by tlieiii resiiectiiig I
said mine, and pay all the moneys due t(jr tlie
purchase thereof, and allot to each of tiie |ilaiii-
tiffs a twentieth share therein, it' tliey alimilJ
succeed in getting a title through the suit ; aiiil
that they would settle all claims of Messrs. K. j
& (1. against the plaintiffs. Thi' plaintitl's siinl
defendants on the last-mentioned covenant: una j
to a plea setting imt the transaction, wl'.idinaj |
held void for champerty an<l niaiutenanoc, tlk
plaintitl's replied, on e<iuitabU,' grounds, tli.it in j
the Chancery suit defenc'ant.s were aihkil is
plaintiffs, .and defendants therein in their aiisw
set up against them that this agreement was voiJ [
for champerty, which tliey (Icnicd, and mi the
hearing the cause was compromised, and a ihrnt |
nnulc by agreement, by which dclendants iie^ i
allotted a certain portion of the land, iur wliiik '
they received a conveyance, ami the agrieimat j
declared on wiis treated ami acted njiiiiiii.v ill j
parties, and by the court, as valid. Heniarksk
A. Wilson, .1., ivs to the effectof this repliiati*
Carr el al. v. Tanmihilt <l <il., ItO Q. li. '.'11
The compromise of a eiaim upon the iilaiiililfjj
assertion that it is the only one, will init 'il
itself form an eipiitable delciice t" aimtlierl
claim, the right to recover in respect of wliiili|
is not otherwise contested. Himi v. Milh,-'
C. P. 450.
\V. sold and conveyed lands by metes inJl
bounds to B., who conveyed to I), hy a dwll
containing absolute covenants for title. X wf
!i«ll
693
CONSPIRACY.
694
tion of the laiul so conveyed wub subsciiuently
•laimed '"V one R. , ftn<l an action of ejcotmcnt
was brought by him to recover possession of it,
jjnd D. instituted proceeilings under the cove-
nant against B. Under these circumstances W.
executed to his vendee a mortgage to indemnify
him against all damages, costs, and charges in
respect of the action of covenant. B. subse-
(lucntly compromised witli H. respectiuL' his
claim : -Held, that W.'s estate was only liable
for what should be found to be the value of the
niece of la>'fl «" claimed, and not the amount
laid hy his vendee on the occasion of the com-
pnmiisc.
Hart v. Bowii, 7 Chy. 97.
A married woman had left her husband, anrl
liail for some time been living apart from him
„n ac'ount of his alleged adulter^', and the hus-
kind had not contributed in any way to the sup-
iHirt (if her or her chililren, whom lie allowed to
remain with their mother. Under these circnm
sUnces the wife was advised to take proceedings
against her husband, under the statute, for not
iir(i\iling her and her chiMren with food, &c. ,
and also to tile a bill against him for alimony. In
onlcr to compromise these threatened proceed-
inL-s the husband made a settlement in favour of
the «nfe anil children. The husband in fact waK
then insolvent, but neither the wife nor the
trustees had any knowledge thereof :— Held, that
the settlement could not be impeached under
the statute 13 Eliz. iVimm v. .S<-off, 20 Chy. 84.
COMPUIXOllY r.lQUIDATION.
Sec BANKRUlTt'V ANl' iNSOLVENCy,
COMPULSORY REFERENCE.
See AttBlTKATlON AND AWARD.
COMPUTATION OF AMOUNT DUE.
I, FoK ISTEREMT— .SVc InTKKENT.
II. On Judgments— -Vci; Juimjment.
COMPUTATION OF TIME.
,St'i- Time.
CONCESSION LINES.
\Str Boundary Line Commis.sionbr.>4 — Survey.
CONFESSION.
I. By Parties Accused- 4'ee CaiMiNAL Iaw.
CONFESSION OF JUDGMENT.
Svc Cognovit.
CONFLICT OF CASEvS.
See Courts.
CONFLICT OF LAWS.
Sec Foreign Law,
CONSENT RULE.
See Ejectment.
CONSIDERATION.
I. In Bills or Notes — .SVe Bills of Ex
ciiAN(fE AND Promissory Notes.
II. In Bills oe Sal/ and Ciiatfel Mort-
gages- -See Bills ok Sale and Chattel
Mortgages.
III. In ( "ontracts— .SV« Contract — Guakan-
TEE and Indemnity.
IV. Inadec'tacy of.
1. Oenerallii—See Fraud and Misrepre-
sentation.
2. Jn Sale of Lands hij Sheriff— Sec Exe-
cution.
V. In F'-AUDULENTCONVEYArCE.S— Scfl FRAU-
DULENT Convey* ances.
V'l. Usurious— .SVc Usury.
(CONDITIONS.
I. I'kECFDKNT AND SUBSEQUENT — See CON-
TRMT— PlE.» DING AT LaW.
II. CONT'.tARY TO PuilLIC PoLICY— iSVf CoN-
TKA(T
III. In Contralt of Sale iiv Auction — .SVc
AumoN AND Auctioneer — Sale of
Land by Order of the Court.
IV, In WiLL8-5tt; Will.
CONSOLIDATING ACTIONS OR SUITS.
See Practice at Law — Practice in Equity.
CONSPIRACY.
See Criminal Law.
An action on the ca,se in the nature of a con-
spiracy does not lie against a person supplanting
another in the purchase of goods which had first
iMJen contracted for by the latter ; and in every
action on tne case in the nature of a conspiracy
the declaration must expressly aver malice on
the part of defendant. Davii* v. Minor, 2 Q.
B. 4(i4.
The avennent of a conspiracy in an action on
the civso is no cbjection, thuugh the fivcts stated
would not support an action for conspiracy, if on
the whole declaration a good ground of action
on the case is shewn. Municipalitu of tlte. Toum-
iilu2> of Ewst A'kmuri v. Iloraenuin, 16 Q. B. 556.
■ I
i:«y
695
CONSTABLE.
m
i !
m
To induce a woman to go tli rough the ceremony
of a, pretended marriage. See Wr'nihl v. Skiiinir,
17 O. I'. 317.
1 »eclarati(in, that the dufinidant and one L. did
unlawfully and fraudulently comliine, I'onsiiirc,
and agree togctlier to defraud the plaintifV of
SlOO, and in ]iur.suance and furtlu'ranco of s.iid
com)>ination and consjHracy the said li. did pro-
curc and induce the plaintiff u> lend him .^l(H>
on his promissory note, and in pursuance and by
means of such comhiimtiim and .igrecniciit the
said Tj. procured the said !*100fri>ni the jilaintirt",
without any intention of repaying the same, and
with intent to defraud the phaintill', wliereby the
;>laintift' lost the said .?100 ; -Held, in.sullicient,
q; 1 demurrrer, for not shewing what representa-
tions were made or means used, or what the
facta were which constituted the alleged fraud or
cause of autiun. AniMtrom/ v. Lnrin, 34 i.}.
B. 629.
I.
II
III.
L.vw.
IV.
V.
CONSTABLE.
TjABn,tT\ FOR ESCAI-K, (<!t5.
1. Nf'ijliijfiil Hkco/m ~Sii Ckimina
POWKR AND DlTV OF IN M.VKINtJ An-
KESTS, 605.
AlTtONS AoAINST.
1. P/mdinij, 696.
2. Ddiinnil of Ci>/>i/ of Wurrniil, (!!)7.
(a) AclUinn tii/aiii^l Dirisimi I'oini /Jrtl-
/(//'s— .Vcc Uivi.sioN Court.
3. Notici' of Artion tu — Sn- AcrioN.
Miscellaneous Casks, 697.
Bailiff— .S'ee Bailiff.
I. Liability for Escape.
Qumre, whether a ccnstahle can be crmii»elled
to execute a warrant of attivchment sued out in
A County Court from a commissioner, as it is
not directed to him but t(> the sheriff', and the
statute gives him no fee. But if lie undertake
the ser\4ce ami arrest the defendant, lie is liable
for an escape. Stonj v. Diirhain, I) (^. B. 316.
II, PowEK AND Duty of in Makinu Arrksts.
A constable who arrests under a commis-
sioner's writ cannot take l)ail, Imt if he do, and
the sheriff accept the bail, the bond is good.
Price V. Siillinui, 6 O. S. 640.
Where defendant justilied under a warrant
from the jiresident and board of iioliee at Co-
l.ourg, un(ler the Cobourg Police Act, for the
nonperformance of statute !alM>ur by the plaintiff,
the justificatii/U was held bad because tlie jdain-
tiff was imprisoned after part of the tine had
beju paid, aiul the warrant to imprison l)eing
for ui absolute time, without any reference to
the earlier payment of tine and costs, was illegal
and void. Triijirnon v. Boitnl of Police (f Cu-
ba uri/, 0. S. 405.
Semble, that a constable may allow a debtor
whom he has arrested to go at large, so long as
before the return of the writ he deliver him to
the aheriff. Host v. Webntvi; 5 Q. B. 570.
niesn,. yf,^^^^
eual l,y tilt ;
Semble, that a constable in a civil prncecclm,
hfvs no colour or i)retence for arresting uifi, '
authority specially given l.y sonic j,r,„.,J
lirowu V. Shni, 5 (i. B. 141. ' '*
.An arrest by a constable on
din^'ted to the siieriff is not
(!eo. IV. c. 1, .s. !t, unless tlie aflidavrt nf tiic'i'l'tl,"
lie annexed to tile iiroeess. AV-i.i v 11',/, /, ,. ■
Q. H. 570. ' '
T.i a declaration for imprisoning the pl.int.tf
(Icfeiulaiit pleaded that when he ni.iduflie .irrusi
he WJis a peace ollicer for the county, a.i(l,xs(,„,,i
was informed that the jil.aintiff had (;iiiiiiiiitt,,j
a felony, and was then a fugitive from justin
therefor ; that, .as he lawfully mi^jht, lioarrcW,!
the plaintiff, and immediateiy caiiacd liii,, t„ \l
brought lieforo the nearest justice to .aiisver tli •
8,ai<l felony, and that the iilaintill' was (lotiim,!
in the police station by said mjigistratu, wlii,ii
is the trespass complained of ; Held, ii'c'i mMHi
Ho<i<r.-< \. IVot I'lr «•(>»/(«;•;//(, 20 Q. H. '.>is
At the trial it ajipeared that the i.i.iintiif
had committed a gross fraud in Detroit, in tht
I'nited States : that the defendant liavini; rv-
ceived a telegram from a ]mblic olticcr tlieri'
arrested him in this province, and tiMik him t„
the police _ station in l^mdon ; and thiit .iittr
three davs' detention he was dischargwl, the
offence not being within the Ashburtoii Treaty
Uefeudant had been chief of police in Uiiidnn
and afterwards appointeil, from year t(p sm,
constable for the county. H(' had acted tditlio
present year, and there was some evidtimcif |ii<
h,aving been sworn in, but his iiiuuo wa.s \w{
upon the list of the clerk of the peace of thii.>i
ajipointed for that year. The jury weri' tuM
that defendant having no warrant, and not iK'ini;
a peace officer at the time, the arrest w,is imt
strictly legal, and the plaintiff, tiierefnre. en-
titled to recover. They found, liowcver, fur
defeiidant, and the courtrefused to dintiirl) tli.
verdict. ,S'. ('. I h. 220.
Held, that a constable executing a w,irrant
issued under the Fishery .\ct, 3! Vict. c. liO, |i,.
<lirectiiig him to convey jiiaintiff to g,!!!], an,!
the gaoler to hold iiim for 30 days (alisdlutcly.
and not until the tine, (fee, b'; .sooiiur paid iiir
the nonpayment of which the warrant was is
sued), had no authority to receive the iiKuu-v.iiii
discharge the prisoner. Antoll v. Umli'i ;>
C. P. 1.
III. Actions Ao.vin.st.
1. Plcadimj.
To a plea of "son assault demesne, "a rqilii*
tioii that defendant committed ;v lircaoh nt tlie
peace, and that the plaintiff lieing a oimstalilf,
and having view thereof, arrested liini, i3agi««l
answer. Fidn v. Wood, 5 (). S, "i.'iS.
Plea justifying arrest, as a coiLstalilc, witliniil
a warrant, under the Hawkers and Pedlars'. Act.
.')8(Jeo. HI. e. 5 — Recpiisites of. .See "riii/Zv.
IMI, 1 Q. B. 18.
Qiuere, whether to a declaration for arrsstiuf,
bruising, beating and illtreating the |ilaiiitilf, :i
justitication of tlie mere arrest will he siilHcicut.
JoHPf v. /i'o.x«, 3 Q. B. 328. Semble, not. Bnv
mtr v. Darlinu, 4 Q. B. 211.
$97
CONSTITUTIONAL LAW.
698
Declaration for assault, &c., anil false imiiri- I'mler < '. S. V. ('. v.. M, s, 402, it is for the
nnieat. A., onv ilefemlant, jiistiliiul, alleging j i-ity council, not for the (Miniinissionersof police,
*" ' ' ■ -■ — '^'■"'^ *' I"..*:"' l,a,l stolen i to <letennine the remuneration to he paid to the
tbatiiiwn suspicion that the jilaintill' h
his goods he laid his inf()nuatu)n l)efore
(if the IH
i)lu
re a justice
i)ti\ce, who granted a warrant to the
miwiM ■■ that B., anotiier defendant, being
cnnstahle, searched tile plaintitl's house,
the wnstanie, i,uun,in;.i n.u .,.a.i.i,..i .-, ......,-
fouml the goods, and arrested the jilanititt, ai
at the rc(iuest of A. carried her before a niagi
md
is-
trate--llcld, plea bad, in assuming to answer
the whole injury, and yet not denying nor con-
lussmg or avoiding the arrest. Jours v. /.'im-s 3
Q. B. 328.
A defendant in trespass for false iinprisonment
ejimot urge that lie arrested ivs a constable, and
that the action was brought in a wrong county, if
he has omitted to insert m the margin of his plea,
"by statute," unless the court can say upon the
facte proved at the close of the plaintift' s eases
that the defendant was acting as constable.
Bmrnv.Sliia, 5 Q. B. 141.
A constable claiming the benetit of a statute
in justification of an alleged breach of the law
mmt plead it specially. t'lear proof of a war-
rant to arrest must be given in an action for
assault and battery, but its production will not
instifv LTOss and unnecessary violence in the
execution of it. BM, v. A molt, 9 C. 1'. (JS.
2. Deimiml of Copij of Witrrmil.
The proof by the plaintiff" of an a<lniission by
a cimstablc, sued in trespass with two justices,
thata laper iTrluced at the trial was a copy of
the warrant '.i;d«'i' 'vhich he acted, is not suffi-
cient evident ■ a" '.{ainst the justices to entitle
the constable to an ac(inittal under 24 Oeo. 11.
t.44, s. (i. Kalar v. Cornwa'l, 8 Q. B. 1()8.
Wliere the plaintiff demanded from the con-
>uMe the perusal and copy <if the warrant :--
Held, no excuse for non-compliance, that he had
Irtiged it witli the gaoler. On tlie argument in
lerni, it was urged' for the first time that the
, (letemlant, the constable, being placed by such
[ non comphancc in the same position as the con-
j viiting magistrate, was bound to produce the
I cnnviction ; Imt -Held, that as tlu^ conviction
iimld proKilily liavc been prodiu'cd if such
nlijeotion had been raised at tiie trial, its non-
[imxluction could not now be allowed to prejudice
[thcilcfciulant. AnwII v. Brndln, 2;} C. P. 1.
IV. Miscellaneous Case.s.
Held, that the direction of a search warrant
[ to the constahle of Thondd, not naming him, to
[execute the warrant in the township of Ijouth,
IvasgrnKl. Jiiim v. /.'(M>-, 3 Q. B. 328.
Qua;re, 1. Is an attachment of privilege within
[ the 9th clause of 2 (leo. IV. c. 1 ; and, 2. Would
Ithig doubt, or the want of an affidavit being
lamiexed to a bailable process, tleprive the defen-
Idant, a constable, of the benefit of the 21 Jac.
[I "H the point of venue. Brown v. Slica, 5 Q.
IB. 141.
A constable of any town within the county in
jwliich a warrant of attachment against goods
Ifromthe Division (!ourt is issued under 12 Viot.
If. tl9, 8. 1, has authority to execute such warrant.
\DtlaHn V. Moore, 9 Q. B. 294.
police force. Wlierc, therefore, the commis-
sioners, thinking the salary of the chief con-
stable (ixed by tiie council insufficient, had
estimated a higiicr rate, the court refused a
mandamus to the city to pay it. /« re I'rinrr
iiiitl llif I 'or/)iir(it'ioii of lliv (Jill) of Toronto, 25
(^ B. 175.
(ONSTm'TlONAI. I.AW.
I. l.Ml'KKIAI. K.N.VCTMENT.S.
I. Slat III,. 1 ill J'oro, 098.
(a) C/iiiiyIi of Eni/fiiiii/ ,S'rc ('in-RciiK,s.
(b) JJniCi'ry, L'liam/iirlif, unit Aluinh-
nnnci — <SVc (Juampeutv ash
Maintename.
II. l5Kirisii NoUTii Ameuica Act, 18G7, 701.
III. MiscEi.i.ANEors Cases, 704.
[Till Criminal Lnn' of Knulinid inin intahlixlifil
in lliin Priivinrf irlnn J'liriiiiini /iiir/ of the Pro-
rinri' of fjiiilur, lii/ llir Jni/iirinl Sliiht/r. I//. (Ii'o,
III., c. .V). Ihi /III' ProriiiriiU Statiili', iL' (rco.
III., •'. I, Ihr loir of Kni/tiini/ irii.s iiilo/ilid in (ill.
iiiiittirn of ronlrori rKi/ nlntiii'. to /iru^iir/i/ nml
riril riijlifx. ]
1. Lmveiual Enalt-menxs.
I. Shttittcn in force.
All indenture of appr".nti'"jship is not void,
but voidable, when contrary to 5 Eliz. c. 4 ; and
that statute is not in force in this province.
Fi.ili V. Dtii/lr, l.)ra. 328 ; DiHiiiiiliiiin v. W'iUon,
« O. S. 85. '
Seinblc, the statute of 5 Eliz. c. 4, is not in
force in Upper Canada, but the 20 (ieo. II. c.
19, is jn force ; and under the third and fourth
clauses of the latter statute, jurisdiction is given
to two or more justices, and cannot bo exercised
by one, and the partj' cannot be arrested on the
c(nnplaint ; he must Ik; summoned. Shea v.
Vhoat, 2 t^. B. 211.
The Hubble Acts, (> (!eo. 1. t. 18, and 14(!eo.
II. c. .37, are not in force in this in'ovinco, and
banks chartered by act of tiie Provincial Parlia-
ment coubl not come within the iirovisions of
tiiose acts. Bank of Montreal v. Betliune, 4 O.
S. It)5, 193.
Tlie British statute 24 Oeo. II. ••. 4(i, disallow-
ing the sale of spirituous liijuors at one time in
(luantiticsof less value than 20s. to be consumed
out of the shop, is not in force here. Heartli/ v.
Hearnx, (i (). S. 452 ; Leitli v. ]Vitli.^., 5 O. S. 101.
The court refused a mandamus to compel a
registrar to regi.ster a tleetl (ui a declaration of its
execution made in England under 5 & (i Will.
IV. c. i)2, substituting declarations for oatiis, as
that act does not api)rv to such a case. In re
l.ijon.*, (i (J. S. 1)27
The statute of 9 (leo. II.
charitable uses, is in force
Doe d. Anderson v. Tmld, 2 Q. B. 82;' JIallock
i
c. .3(5, relating to
in this province.
llVDla
699
CONSTITUTIONAL LAW.
•|)0
V. IVHsnii, 7 C. I*. 28 ; Mnro- v. lliwMon, !) C.
1*. 34J); Ddmi/tuu v. iJooinn; 15 Chy. 1,218;
A/rt;H/*/V V. AV/Ar, 22 C. 1". 141.
Uniler the 75tli clauau of (lur l'<iiiiki-ii|)tcy Act,
the 108th sec. of the Britisli statute t! (!co. IV.
c. 16, is not ill force in Ui)|ierCanii(la. Mitit/swi
V. t'ummvrdal Ihiiik, 2 Q. B. 338.
The 1(5 far. I.e. 10, was inteiuled only to apply
to the Court of Star ( 'hanihcr and other courts
therein inentioncil, and not to sucli trilmnals as
the Recorder's Court for the city of Hainiitoii.
Therefore an action against the mayor, acting as
president of such court, charging that he falsely
and knowingly caused a verdict of guilty to he
, recorded against tlie dcfcmlaut on his trial for
larceny, and claiiiiinu to recover therefor tlic
penalty of i;(K)0 .sterling, imposed hy the sixth
clause of the statute, was lield not sustainable ;
and, at all events, the record being unrevcr.><ed,
would have protecteil tlie defendant. Sliirk v.
Fo.-</, 1 1 Q. B. 3t>3.
Held, that the Ashburton Treaty contains the
whole law of surrender as between Canada and
the United States ; the statute 3 Will. iV. c. «,
being 8Ui)erseded by the Asliliurton Treatv and
the Imperial aettut 7 Vict. c. "(>, and the i);'ovin-
cial statute 12 Vict. c. li>; though in relation to
otiier foreign powers, witli whom no treat; ir
conventioiial arrangement existed, tiie statuti. 3
AVill. TV. c.(), is still in force. Iftiiliin v. Tiihhir,
1 V. II. 1)8. ('. 1-. Cli.iml). Mac'aulay.
Qua'rc, how far the l^nitoil States, Lower
Canada, or England, would rcbpect the statute
3 Will. IV. c. 0, if a fugitive surrendered ))y
Upper t!anada to a foreign iK)-.ver were taken
through those countries. Jh. See now the Im-
perial Act 33 & 34 Viet c. .32.
QuaTC, whether the Knglish Marriage Act,
2(5 (Jeo. II. c. 33, is in force in this province.
Jtidimt V. Si'ck-a; 14 Q. 15. (i04.
Seinble, that it is not. Hiyhui v. Bell, 15 Q.
B. 287.
2(5 (Jeo. II. c. 33, except, perhaps, tlie I Itli
clau.su, ia in force in this country. llmltiJnx v.
MrXril, 9 Chy. 30.->.
32 Cieo. 111. c. 1, introduced the law of mar-
riage as it existed in Kngland at that d.atc,
except, perhiips, some clauses of 2(5 (Ico. II. c,
33. It introduce.1 25 Hen. \ 111. c. 22, 2S Hen.
VIII. c. 7, 28 Hen. VI II. c. 1(5, and .32 Hc:i.
VIII. e, 38, so far as tliey reiuained in force, anil
so much of the canon law as had been adopted
by the law of England. J h.
5 & () Will. IV. c. 54, does not extend to tliis
province. /!>.
The Imjierial statute 2(5 (ieo. III. c. 8(5, s. 2,
cnaeting that owners of sliijis should not lie liable
for any loss or damage which may hapiien to any
goods shipped on any sncli vessel by reason or
means of any tire happening to sucli ship, is in
force in this i)rovince. Tornnirf v. Smith, 3 C.
P. 411 ; Jlrarhx. /Amv, 15 (,). B. 250.
The statute 5 & (i Edw. VI. c 1(5, against buying
and selling of otlices, is in force in this country
umler the 40 Coo. III. c. I, as jiart of the
criminal law of Kngland. Any act done in con-
travention <if tiiat statute is indictal)lc tlioiigli
not specially nuwlu so. (,)uii'rc, per Hotii'ison, (!.
J., whether it is also introduced by the 12 Geo.
III. c. 1, which adopts the law of Engl.inil "
all matters of controversy relative to nroiii.n"
and civil rights." The 40 Oco. lll.c. |o,'
clearly extends the 5 &, (5 Edw. VI. to i'i||L
Canaila, and to the otiicc of sheriff. Ji'iyii,;, '
Afvmr, 17 Q. B. (iOl ; Rajina v. MnoilC •w,,
B. 380. ' ■" ■
q. B. 30(5.
Held, that in this country there can he u
demurrer to a return to a mandamus, thcstatiip
allowing it in England, (> & 7 Vict. c. iq] ,,,,
being in force liere. Rcijiua v. WvlU, I7 Q i
.545. But sec now 28 Vict. c. 18, s. 7.'
The nullum tenipus act, (Jeo. III. c. 16, iml
force in this province, but it does not ,™)ly fcl
the unsurveycd waste lands of the crown. /(, '
ii'mii v. McConnkk, 18 Q. B. 131.
No penalty can now be recovered fur seUiiul
liipior without a license from tlie goviTiKir A
lieutenant-governor, under the Imperial ,ut \\
(ieo. III. c. 88, for since the I k 2 Will, |V.o]
23, the issue of such licenses has lieeii rcL'ulateiil
by the cohmi-al legislature, and now Am^i
upon the municipal .act 22 Vict. c. 09. hiirnl
V. \Yhit<; 18 Q. B. 170.
The 22 (ieo. III. e. 4(5, which relates, anwnJ
other tilings, to attorneys sharing tlicir liiisini-sil
with persons not admitted, though luptajcil iil
England, is in rorce in this country. Dmm
O'RiUhj, 1 1 C. I'. 404.
1. Will. & M. c. 18, relating to disturljajiml
in church, &e., is in force in this jiroviuco, anJ I
not superseded by C. H. U. C. c. 92. ^,;,(v
l,iUii.-<, 12 C. P. 101.
The Imperi.al statute 28 (ieo. III. c. 411, s. U
enabling Justices of the peace for countiwat
large to act .is such within ,iiiy city, Winj i
county of itself, situate therein or adjoiningsicli '
county, is local in its character, and is not iiiinriv
in this province. Rnjiiia v. Row, 14 V. \'.$'.
The Imperial scatutc 50 (ieo. 111. c. (ill, aaaut
jirocuring and ei.deavouring to iinioiirc tit
nients in this country for the army (if the r,v*i
States : Held, to be in force in this pruvn,
and a conviction under it sustained. /V;/wm,
Sclimni, I'lii'mii v. Aii<l<rfi>ii, 1-1 V. V. 31)j.
Per .). Wilson, J., the Imperial Mutin) .k
does not override C. S. C. c. 100, Imt tlio \m
act was passed in aid of it, ami isthcR'torei
force. Riijina v. Shfrmnn, 17 C P. 167.
Per A. Wilson, .J., the jmnishment liy tin
(//('/ iniprisoniiient imposed liy tlic imniuiiil
act stands abolished so long as the Miitiii) Ai
is in force, and the iniprisonineiit can in iirt*
exceed six calendar ni<mths, Imt tLi; [xmri
tri.al by the court of Oyer ami TcnniniriinJe j
the jirovineiiil act has not lieeii taken awiv It
the Mutiny Act. /h.
The Imperial statute II & 12 Viut. c 1-
the better security of the crown ami jruvi nm
of the united kingdon, does not (ivirriili'.'t\rt j
c. 12, of this province, to protect tln' iiihahitoti I
against aggression from forcigiiera. tor the latw
is re-euacteil by the cousolidatiuii of the statute
:i)0
t'l liropcrt,
I. to U|,p(,
loodir, 20 1).
-01
CONSTITUTIONAL LAW.
702
li:-' '
Cr
■"n.yri r
Z)«imi V.
r. (i'J, a»t
lire i-
the r
; nro\
Ml
V. 31».
N[utiny .te
Imt the \m
lis theR'tori a
11)7.
Ilimeiit liy m
Ithe iirciviiiciil
|ie Mutin; .V.I
lean in mi tiii I
J the iKiwers !
Icniiiiier ii»i«
liikeiiiiwaykf ;
I'iet. e. li "
111 j.'iivenir..'
I'erriileH^Ki
|he iiiliabituU I
t(ir tlio litW ]
If the statiitc
which took place in 1859. R<(jiiin v. Sliiriii, 17
C. P. 205.
The English statutes, 1 Auiic st, 2, c. fi, and
r ^ne e. S'. relating to esuaitu warrants, are not
in force in this province, ilexku'th s. Woril, 17
{,' P. (567. -A Wilson, (liss.
The court is bound to take notic;c that the
Imi)erial Aet 2 Oeo. IV. and 1 Will. IV. u. (10,
enables lands in this province lield in trust ))y
ft ijerson of unsound - '- '
eonunittce appointed
ecrv in Kngland. I
v. :.93.
brewery. Whether the statute, if applicable to
licensed brewers, would have l>een within the
power of the provincial legislature, was a (jues-
tion raised, but not decided. Rui'tmi v. Srolt,
;J4 Q. H. 20.
The Dominion authority alone lias power to
tax and regulate the trade of a brewer, which is
a brancii of trade and coninierce, .and having
done so, the Ontario IcLMslature has not the
llB liiwvijiui; iiuiil 111 LI lint iiy i . a • •.. i • y li l
,,'•,1 ,.1 ., , ,„•' power to restrain it, unless in a (iiialihed manner,
mmil, to lie conveyed ov a ' i -■ ., .. '■■ ,, .
11 ii !• 1 /. i'^c/ti I and tor the mere luiriiosus ot police. lOiiimi v.
1 by the high Court of C'liaii- ,„ i <> u n ''i- ,u~- v ^ * * i
«,/ * I, „ .,., ,, I Ill/lor, (.). n. H. J. 8/i). rsot yet reporteil.
/ hoiii/Moii V. lit iincft, 22 (..•''■ J I
II, Briti.sh North AMF.nifA A(t, 1807.
Xotice of application for discharge in iiisol-
veiicy in the Canada Gazette, and not in the
Local Gazette :— Held, sufficient under the In-
solvent Act of 1864, the B. N. A. Act, and 31
Viet c. (), *>. In ir I In fin nn, 5 L .1. N. S. 71.
_C (\_,Sherwood.
Held, by a majority of the arbitrators, that as
the B. N. A. Act, 1867, cimfers powers on the
.irbitrators appointed thereuntler of a public
nature, sucU powers may be exercised by the
majority, and an award by all is therefore uiine-
cessarv. In rr Arliitrntion lutwrfn tln' Pnir'-iny
ufdrurionHtl Qneliec, 6 L. J. N. S. 212.
The jurisdiction of tlie courts of oiu- of the liti-
mnt provinces to interfere to stay the proceed-
iiijs on the arbitration by writ of proliibitioi*
cimsiilercd, and held tli.it there is none. //».
Semble, that the right to legislate on returns
(it lonvictioiis and tines for criminal oHences
belongs to the dominion, and not Provincial,
leMlature. (Jlemrnm{. t. v. liiimi; 7 \i. ••• N.
. !■.>().-(.'. t'.-Hughes.
Ketuniii of (.inivictioiis and lines for criniiiial
i (iffeiiees Iwiig governed by the Dominion statute
ilk'iS Vict. c. Ill, 8. 76, and not by the Law
j Keform Act, 1868, are only reiiuiivd to lie made
I ttmi-annually to the general sessions of the
licioe. III.
The 28 Vict. c. 20, autlioiiziiig the governor
to apiwint police magistrates, uoiitinued by ;il
i Vict. e. 17, O., relates to the ailmiiiistration of
I justieu, anil is within the powers of the Irgisbi-
tiiR' iif Ontario, ard is still in force. Itniiiiii \.
/^mi,4P. H. 281. ('. I,. Chanib. DiaiMi-.
Tlie legislature of (hitario having ) isscil an
att til regulate tavern and shop lirt'iises, '{2 N'ict.
jc, 'ii. under t'lc jiower given to them by the i>.
|-K .\. .Vt, 1867, s. !)2, Bub ss. !t, lit : lield, that
j tiny had povter, uii(h'r sub s I'l, to eiiatt that
I »iiy liersdi. wh' , having violated any pinvisioiis
i>ef the .ut, s.ii,..id coiiiproniise the oU'eiiee, and
jaiiy iwrsoii who should be a parly to sueii coin-
prumi.je, should on eonvietion be iii'inisoned in
ihe cumiiKni gaol for three months ; and that
IjucIi unactiueiit w as not opposed to see. !U, sub-.s.
87, liy which the ciiiuiiial law is assigned exclii
lively to the Dominion parliament. ItujiiM v.
\.h<m-dmaii, liO l,>. H. iw'X
The proliibitiitn to keep, have, or sell beer, by
a brewer, unless under a license ,ind the pay-
ment of a tax for a license, is an excess of power
by the Provincial .authority, and is a restraint
and regulation of trade and commerce, and not
the exercise of a police power, lb.
The restriction imiiosed by the Ontario legis-
lature on brewers not to sell by retail, as defined
by the act of 1874, is not ultra vires, because it
is a mere repetition and renewal of the legisla-
tion which was in force here before and at the
time of the eonfederation. Ih.
The right eoiiferred on the Ontario legislature
to deal exclusively with shop, .saloon, tavern,
auctioneer, and other licenses for the purposes
of revenue, does not extend to the licenses on
brewers and distillers, over which the general
government only, .anil at all times, exercised juris-
diction, and which are of a higher and ditt'erent
class tliaii the licenses of retail dealers which
are mentioned ; and tlie "other licenses" have
reference to those kind of lieeiLses before stated,
sueli as on Idlliard tables, livery stables, Ac,
which are ciiietly eiinmerated in the municipal
acts. III.
The Ontario k
or prohibit the
.•\ linmer licensed as such by the government
I of Ciiimda umler HI N'ict. e. 8, D., reiiuires no
license under tlic Tavern and Shop License .Act
j^f llntario, ;t2 Vict. c. .'12, s. 1. as ameiide.l by i (H. N. A. Act,
t Viet c, 28, for selling ulo manufactured at his j 34 (l B. 4;{.
islatiire has a right to license
ale of lii|noi's in shops and
ta\eriis, and in other places of the like Kind,
because it has the exclusive power o\er munici-
pal institutions, and these institutions had before
1 and at the time of eonfederation the exercise of
[ these jiowers, ;ind beiaiise such powers, read in
i conneetiiiii with see. '.12, siib-s. 16 of the Con-
j federation .\et is imw a matter of " a merely loeal
or private nature in the provime. " That power
i is ill ri'straiiit of trade as well .as a matter of
poliee. I he general ii'giilatioii of trade and
eomiiiene. \N hii h is vested ill tin.' Dominion
I goveriiioeiit, mil: till iisideied tube iiiiMiilied
i by the powers .nIiuIi the (hitario lej^^islaturt;,
acting ill relation to iiiuiiieipal institutions, may
properly eveieise. Ih.
r.ylaws passeil by iiniiiieipal corporations
I wholly prohiliitiiig pirituous lii(iioi's in shops
and ]iliees other tl an houses of |iiiblie eiiter-
taiiimeiit, and limiting the iiuiiilier of tavern
licenses to i.iiie ; Held, valid, .is being within
the |)ower of the 'orporatioii, under the ,'t2 Viet,
e. 'A'l, O. ; and th.at it was within the authority
of the I'loviiieial legislature to eoiil'er such power.
Ill ri Sliii'iii iiiiil /In t 'iir/iiiniliiiii nl' llif ]illiitif uj'
OriUhi, (), B. M. T. 1875. Not yet reiM.rted.
Held, that X\ Vict. e. Ill, O.. amending tho
law relating to bills of lading, was not beyond
the powers of the )iroviiieial legislature, as beinjj
111 interference with "trade and commerue,'
t)l, Hub-s. 2.) Jlriml v. Sk'elf,
1 liiii
1.1
703
CONTEMPT OF COURT.
70*
! V
■ ft
Held, that sec. JM) of the Insolvent Act of
1869, was not Ijeyoiidthe power of the Dominion
parliament, as l)eing an interference with pro-
perty and civil rights, hut was witliin their
exclusive a. thority over liankruptcy and insol-
vency, driimlnc \. Jitrknoii, 'M Q. 11. 57;). — A.
Wilson, .1., sitting alone.
To an information of intrusion tiled liy Her
Majesty's attorney general for tlie Dominion,
prosecuting for Her Majesty, tlie defendant
pleaded tliat the landu mentioned were not
ordnance property, or property in any manner
under the control of the Dominion of Canada;
hut, on the contrary thereof, tlie saiil lands
became upon the passing of tlie H. N. A. Act,
1867, and still are the jiioperty of the Province
of dntario, in which they are situate. Issue
having been joined on this jilea, the title at the
trial wivs gone into, and a verdict entered for the
crown, with leave to defendant to move to enter
it for Iiini : - Held, that the crown was clearly
entitled to recover, for, among other reasons, the
plea set up no title in dcfenilant, and atlmittcil
the crown title by stating the lands to belong to
this province ; and the fact of the attorney
general for ('anada prosecuting for tiie crown
couhl not shew that a Dominion title was neces-
sarily claimed. Attorin if-Onicriil v. Jfiirrii, .S.3
Q. B. 94.
Tile Provincial attorney-general, and not the
attorney -general for tlie Dominion, is the jiroper
party to tile an information, wiien the complaint
is not of an injury to property vested in the
crown as repres(^ntiiig tiie government of the
Dominion, but of :i violation of tlic rigiits of the
[lublic ■it Ont.ino. Attuniiii-diin nil \. S'linin m
FtiUs liitcrnaliiiiHtl lirhliji Cn., 20 Cliy .'{4.
The Provincial attoniey-gciicral is the ))roj(er
person to tile an infoiiiiation in respect of a nui-
sance caused liy interference with a railway. ///.
My his will a testator gave to his <'hildren
c(Uitingent interests only in liis residuary estate,
real and personal. Tlie widow and children of
the testator, by indenture after reciting the
will, and after otlicr recitals as to payment of
annuities and legacies uiuler the will, and that
the residuary estate amounted to more tiian
|i;{00,000, .iiu'l that it was desirable tliat each of
such chihircii of tiie testator should enter imo
possession of tlieir siiaies repectivdy witliout
waiting for the death of the widow provided
for the alliitineiit to each of tiie testator's chil-
dren of his and her resiiective shares. They also
stijiulateil to apjily to tlu; Provincial legislature
toeoiilinn the inaiigenient, and for all necessary
and incidcntr.l powers. .Vpiilication was accord-
ingly made 1 1 the legisliitiirc liy petition, setting
fortii the will at leiigtii, and the names uI all the
parties, iiifiintsas well as adults, interested there-
under, for an act to contirni and validate the set-
tlement which had lieeii so made. Thereupon an
act (34 Vi<'t. c. !t!() was passed, enacting that the
said deed should lie conlirnied and made valid ;
and the trustees under the will were authorized
and rei|uiied to carry into ell'ect the provisions
of the act ; and were thereby declared to be
saved hiivmless and indemnilied. On appeal it
was — Held, that the provincial legislature had i
power to pass such an a'jt ; but that the infant I
grandehildrcii of the testator, who were inter- I
ested under the will, not having been exjiressly
uoiued in the act, their interests remained uiiaf |
fected thereby. Draper, C. J,, and iSDram,
C, diss. In re Goodhue, lOChy. 306. ^'
Ah 1 per Strong, V. C, that the will havjr.,
directeii the whole estate to be converted ini;
liersonalty, the testator's grandchildren (lonijci'J
without the province of Ontario could ndt'lie
affected ly aiiv act of the legislature of tl;,
province, the locality of all rights to persnu^
or movable property being at the diiiniciL of th(
person entitleil to it ; and that, therefore tli*
contingent interests of the grandchildren' waj
not " property or a civil right" within the on,.
vinee. Ih. '
111. MmcEi.L.^NKors Casks.
Can the provincial parliament coiistitutionallv
L'ive a right of action against the board of or,]'.
dance, a military department of the iiiiiperi,!!
government? ThIIij et al. v. T/ii- PrliininiKi^
fii's of Jl. M. Onhiniirc, 5 t^. B. (i. •'
The legislature of Canada, by an act, setaiiart
a certain ipiantity of land along the line of a
jirojccteil railway running through (Quebec an.l
Ontario, to be granted to the con>pany on ujm
pletioii of the railway j and a iir^iiortioiiate uari
of such lands on the complet'on of 'JO miles of
the railway. The company having com] leted j
portion of the line of railway in (hitavio t(j aii
extent of more than 20 miles, applied for a grant
of the proportion to whi'-li, under the aet. tlin
claimed to lie entitled, which was refused. Tlit
company thereupon presented a petition of riglit
against the ;,r.\'iiice of Ontario. It \va.s alJeKcil
that the I'l-oviiiee of Ontario had iiot alouL' tin-
line of tl>e road sutHcient lands to make the
grant desired :-- Held, that this fomied no
ground ^"or the province of thitario insisting that
the jirovinee of Quebec should have been mailu
a party to the proceeding. ('oiiikIh ('mlriil ft
ir. C. . v. Nciiinii, 20 Chy. 278.
COXTKMIT OF COURT.
I. .Xl-I'AI IIMKNT KOR -.SV< AriAellMENT of
riiK Pkkson.
!l. PuwKK OK .IrsircKs ro Commit koi; ->'.
.IrsTM'Ks OK iiiK I'[;a('K.
III. SK.QrKSTKVnON--.SVr SEytlK.STKATIOX.
While a power resides in any court or jiiilgi'
to commit for contempt, it is the power or privi-
lege of such court or judge to detcniiine cii tlif
facts, and it docs not belong to any iiighei' tri-
bunal to examine into the truth of the c:a.w. /«
/•»■ Cliirb mill J/iiTiinnis, 7 Q. I'. -'2'X
A writ of attachment for emiteiiiiit in imt
obeying the original order of a judge to ili-livi-r
up the custody of children, under V. S. I', ('. i.
74, was by order of v. judge i.ssued from the t'ourt
<if Queen's Bench ; and the iiiisliand inmfil
against it for irregularity. It w;is ulijeeteii that
while in cmitempt for not having siumuleroil
binisclf under it, he couhl not be heard; Imt,
Held, that he might nevertheless defend liinisdi
by objections to Hie process if irregular. In "
A III',,, :\\ (^ B. 4.')8.
Where an order is made upon a rseeiver for
payment of a, sum of money, the court, on Jt
705
CONTRACT.
706
fanlt, will commit for a contempt of such order
without requiring any further order to be served.
Mdnhsli V. Elliott, 2 Chy. 396.
SemMc, that it is a contenij)t of a court of
common law to proceed in this court after a
reference to arbitration under an order of tliat
court, which orders the parties to perform the
award Puineroy v. Boswell, 7 Chy. 163.
It would seem that a plaintiff prosecuting his
decree is entitled to do so, notwithstanding ho
may liave lieen placed in contempt for disolav
(Ufiicc to an order of the court for payment of
money. I» ""ch a case the defendant nmst
(,lit:iiii an order staying proceedings until the
coiil'Jiipt is purged. Jiurd v. Buhertnon, 1 Chy.
Chaml). 3.— Ksten.
Where an order limits a time to do an act, the
(inler must In- served before the time limited has
(xpireil, otherwise the party reouii'cd to do the
■Ml will not l)e committed for disobe Hence
II ii;//if )• V. M(uoH, 6 P. H. 187.— Chy. Chamb. —
Huiuiested, I{<forev.
Kvery court of record has the power to punish
for contempt ; but if the court is one of inferior
jurisilietion, the superior court njay intervene
iinil jirevent any usurpation of jurisdiction by it.
Where, therefore, a ban-ister during the sittings
of the County Court of (.'arleton used wonU
which might have been and were l)y tlie le irncd
jiulge considered to have been used to insult
the court, on l>eing told that unless he ottered
«ii!iic apology he would be fined, replied that he
h,vl nothing; to say ; and he was then adjudged
guilty of contempt and fined : upon motion for
a certiorari to remove the order : — Held, that
tiiere was no excess of jurisdiction, and that this
court could not interfere. Ex parte Li'.e/t and
Ikf Jiidijt of the County Court of the County of
(MrlfKm, 24 C. P. 214.
CONTRACT.
I. M.\KING THE CONTKACT.
1. By Letters or Telegrams, 708.
'2. Personal Liability, 712.
(a) On Bills or Xotes — See Bi lls of Ex-
change AND PROMI.S.SOKV NoTEK.
(b) On liehalf of Corporations — .SVe
C0RPORATI0N.S.
(c) Of Agents — See PRiN't'lPAL AND
Agent.
(d) Of Kxecntorx—fief KxEiuTORs and
Adjunistratorss.
.1. Collateral Parol Terms — iSVc EvioENrE.
II. SCKKICiENlV OK CONSIDERATION, 714.
III. <IPER.VnON OK THE STATUTE OK FRAUDS.
1. Generally, 717.
'I Ayreements not to be Performed within
a Year, 717.
2. Contract in consideration of Marriaye,
118.
4. Guarantee— See Gitarantee and In-
demnity.
5. Sak of Goods— See Salb of Goud».
46
6. iVo/( of Lund—See Hale of Lank —
TlMllER.
7. Trusts— Sie Trusts and Trujsteem.
IV. VaLIDITV Ah REGARDS PuBLlC Pol.K V.
1. Restraint if Trade, 711».
2. Other Casi", 720.
3. Compromise of Leyal Procvedinys — Sie
Co .M PROMISE.
4. Fraud See Fraud and Misrepre-
sentation.
5. Dealiny wi'h Particular Persons.
(a) Infants—See Inkants.
(b) Persons under Duvess — Sec Duress.
(c) fnto.cicaled Persons — .SV<' Fraud
and Misrepresentation.
(d) Exvrliny inline Inlhieiiee — Sec
Fraud and Misrkphesentation.
(e) Trustees - See Trusts and Trus-
tees.
(f) Lunatics — See I^UNATICS.
ti. Goodii'ill Sec (iooDWlLI..
7. Bracery, ('hunqn riy, and Mainti nance
— See Champerty and Mai.nte-
NANCE.
V. Validitv as ueoards Statutes.
1. <Hliee -Set Oikke.
2. InsoU'ents—Sec Bankhui'my and In-
solvency.
3. Public Companies ■ Sic Corporations
—Municipal Corporations.
4. Iraminy, Lolli ry, and llorsc Baciny —
See Uamino.
5. At Elections- See PARLIAMENT.
(5. Smuyijliuy -See Revenue.
7. Usury— See Usury.
8. Sunday— See Sunday.
!). Sale if Indian Lands — See INDIAN
Lands.
VI. Construction of Contracts.
1. Conditions P'-ietdent, 721.
(a) Dependent and Independent Cove-
nants—See Covenant.
(b) Pleadiny—See Pleading at Law.
2. Impliiil Cunlruct, 724.
3. Vaijur or Cna rtain, 725.
4. Other Cases, 725.
5. Of Bonds ^S). Bond.
6. Of l)eed.< — Sir DeED.
7. o/C'((i'(«aM/.v.SV(' Covenant.- -Cove-
nant FOR Title.
8. Of MortiJiHjes See BiLLS OK SALE AND
C!lIAn-EL MoHT<)AUK»S - MoHTCiAdK.
0. Of Liases AVcLandloud AND Tenant.
10. SaleofUooils — See Sale ok (Joods.
11. Sah of Land- See Sale of Land.
VII. Waiver and Surstituted Contract.
1. Generally, 7.S0.
2. Accord and Satisfaction by-
roRD AND Satisfaction.
m
•"At
"i.-'i
Sec Ac-
VIII. RSKINUINO AND DETERMINING, 7:13.
; 'i^T*'
;i
707
CONTRACT.
"08
IX. PrRroBMANCE, 735.
1. Pai/meiU — Sec 1'ayment.
'2. Enforritiij-Sve. Speiifh; Perform ance.
X. I'AROl. Co.NTRAlT.
I. Aiircementu to Vary — See KviUKiNCK.
U. Specj/if I'er/ormuiicc of—Sev SrEtiKH'
Peuformance.
XI. AcTIONH A>'D PROCEEOJNUH O.N l.'o.N-
TRACT8.
1. Parlien.
(a) Printy of Contract, 738.
(1)) Other Cuneo, 742.
2. PUailimj.
(a) (Jrrftiiiity awl I'artkiilarily, 742.
(b) ^Jthvr Cote*, 743.
(c) Common Coanix — .Vfc Mr).NKV
Cot NTS.
• (<1) Anwmlminl of Slaliiiivnl of (Uni-
trarix — iSV» .Vmendmknt AT Law.
3. JJamuijes — Hii' I)a.MA(ies.
4. Iteatrain'tnij Sah of Hoo<(h — .SVr I.n.m'.nc-
tion.
5. .Syyeci/ic /V//o)-Hi«/irt-.V(( SpecivicPek-
EOJtMANCE.
f). k'ridinir — iSer KvjDENCE.
XII. Pe.nai.tv .SVr Penalty mv Co.ntiiact.
XIU. Contracts iiy I'aktilii.ah Persons.
1. Ayents — See Principal ani» Aoen r.
2. OJficem of the Army — .'•Vp Army and
Militia— Ordnance.
3. Commmion ^ferrhantM--See i'oiimx-
sioN Mekchants.
4. Corporations— See (.,'orporations.
5. Kxecutom — See EXEclTORs AND Au-
ministkator.s.
(). hifunls—Sve Inkant.s.
7. Lllliaticn— See Ll'NATIC.
8. Married Women — Sec Hi'siiano and
Wife.
y. PartnevH — See Partnersuu'.
10. Sliipotunern — See Ship.
11. TruMeeM—See Trusts and Tucstees.
XIV. Other Paiitkilar Contracts.
1. Of Ajiprenticeihiji — See Api'RENTIce —
Aitorney.
2. Ihiililinii Contract — See Work and
Labour.
3. For Carriage — See Carrier.s — Rail-
ways AND Railway Companie.s —
Ship.
4. Contraetx of Marriage— Set Husband
AND Wife.
5. Of Tenancy— See Lanolurd and Ten-
ant.
G. Of Hiring— See Corporations— Master
AND Servant — Public Schools.
8. Of Surety — .SVc Bond — Guarantee
AND Indemnity — Principal and
Surety.
0. Sale of Timber— See Timjjek.
10. tliairanter -See i Juaranti;i \m, .
demnity. ^
IL Wiirronly See W'AKiiANn,
12. of / 11X11 riiiiei See InsUKANi'K.
13. l/xe of Woli r See Water am, W^rr,
COCRSES.
14. Work and Lalioiir Sir WH
Laiiiiir.
IIK A\
I. Maki.vi! the Contrail
I. Hy l,etlerx or 'I'l leiirniiis.
Piaiiititl' tflfgi-aiiluMl to ilffuii<liiiit ;it \mA-
port : " A party wants to Imy wheat mi Mir,,,,
(irec'iiwnod ;' wiiat is your |iVicc ?" IViVn.iaii!
aiiswiM-i'd liy tck'gniiil'i, " 1 will silj f,,|. t«„
ilollars iior Imslii'l. " I'laintitt' rcplicil, "Iwili
take wheat on MJrace (Jrt'onwoiHl at viiiiinlltr
Tiif whuat Mill. ii„j
tW(
ildllars i)ur Ixishul
(liilivercil : Hi'lii, that thi-rc was a valiil
pur hiiH
Hi'lii, tl
tract. Handy v. Jolinxon, (J ('. P. •J-Ji.
Mofi'iidaiit, in .liini!, \HTiT\, aju-rt'iil tn wni,!, i
I jilaiiitilF's vcascl in carrying liinilifr linni IVai
j Cruek to Montrual until the oh)se uf iiavinatinii
After Kiinie eorreapondenco hetween the plaiiititl
and delendant's agent, she was sent liirtin' bi
trip to Cleveland, and there took in a Inail ntnin;
for Montreal, which brought flTt) Il«8 Irtiglu
than a cargo of tiniln^r from Hear Ciuik wmilii
havii done : llelil, that the Icttirs .sut mit u,
the case contained no agreement on iluk'ndunt. j
part to pay such difl'erence, hut tliat \\\v \Am
titt's remedy was on the original wpiitriut.
Burns, J., diss., and holding thai liy tlio ouiiiliKt I
of the parties the original agreement wait put an
end to, and that the tacts proved, togftlier with
the letters, constituted an agreement tci siilsti.
tutu a cargo of grain for tindier, Tiiakiii); ,<f,ur |
compensation for the ililference. .I/c/Vicmw v.
Cameron, 15 (^. B. 48.
Held, that the letters set out in the npnrlMi
I this case sutKciently shewed acuntiait liydiMi
dant in writing to assume a ceitaiii delit diiv In
another as his own. C/urk v. Wnilihll, |i)i,i |i
352.
On the 1st of Septend)er, the |ilaiiitill, livm;
at Kingston, receiveil a telegram InniiC., .t
I Oswego : " Will give you eiglity icnt.s Inim.
I and on the next day he tnok ti> ilulindaiit.-
otlice the following reply : "Do aeuipt viiir
offer ; shiji to-morrow lifteen or twiuty iiiiii-
dred." He paid defendants si.xt\ cents, iiiiiiuh'.
thirty cents for sending the nicssiige tn (ij;ildis-
burg, anil thirty cents from theiife tu Oswii;.'.
His answer was not received liy ('., wlm swiiv
that if it had been the bargain wiiulil liavi ktii
dosed at eighty cents ; but that, after wiiitint
for two or three d.iys, the jinrty fur whom In
was acting would not take it. The pria filli«
the 5th or (>th, and it apiiearcd the |ilaiii!iii
might before that time have eoninimiieatiilmiii
C uy letter. In an action for negligeiicf in irt
transmitting the incasage : Held, that hoilani-
ages could ])e recovcrecf, for even if it liad ten
received by C, there would have hem b>
complete contract binding liim to take the rw,
Quiere, whether any and what daiingts wiiU
otherwise have btien recovered from iklViiii.iiit*.
Kinghoim v. Montreal Teleijrnph Co., ISU IV'*'
When a coiitroct is attempte<l to Ite iiiailc out
through the telegrapli, if that eun be done atsll,
709
CONTRACT.
710
the mcssftgo* Bigned by tho partios intist \>o pro-
duced, not tlio transcript tnkun from tho wiru. //*.
[But SCO now 3(» Vict. c. II, O. ]
In tlie cougtruction of a contrict arisinj; out
f letters niul telegraphic coniiiiiuiicn ionti, tho
Inrtv iiiaSvii'M •'''•^ projioHiil niiist l)o joiiHiilereil
•IS rini-'«'"K ''•'' ""'"" •'^''^'''y ""'nK'Ut, until tlio
„. ,it«liii'h the lUiMwcr into In- seiit, niiil ttiiMi
oiuplL'teil liy the iu'ci']»tanc(' of
tniH* •
t
,i,„ ,.|,iitnvct in i.'olupiL'teii oy iiU! lu-ci'jdiincc oi
tliedtt'er. Thoni.' v. HanrM ,1 .,/„ l(i <'. \\ -.WX
j>l,ii„tiir, .m the otU Soj)tenil)nr, I8(i'», wrote
t,, ileleniliiut:<, askiuL' tlioir price for ii certain
sHccitieil iiuautity of lo;vther. On the 7tli defen-
(I'uits replied through their niiiiuger, ackmiw-
li'dinnK tliu receipt ol plaintitl'M letter, and add-
ini! ''\^'« '"■" ""* »»^"'"« '""■ li-'i'tlier for I".'
cents ciwtli, at the tannery. Trusting to receive
■ our "Plw'. 1 remain, &c." <)n the I3th, plain-
titf wrote, " ' '"" '" '"f^i^'l't of your favour,
iitfeniiK. &1-- "t -- •i*-'"*" "'■*"''• '» reply, &c., I
will take 400 Hides No. I, overweights, though I
im liiiviiig yo" '"»'' '•'^"'^ """■" *'""' ^''"*' ' '"'^'"
just iiiircluuied at. I will send over Mr. 1'. to
Uik "lit what will bo most suitable for my
trade " 'hi the l.'ith, one of the defeiulants tele-
rniiticd plaintiti' thus : " Wednesday next will
1« most cniiveiiient to attend Mr. 1'. at tannery :"
-Held that the whole correspondence taken
tfiirethc'r constituted a binding contract between
the iiarties, iind that the plaintiff was therefore
entitled to recover against defendants, on their
retusiil to deliver. //'.
Semlile, that the letter .tnil telegram, of the
l.ltliaiid I'lth .September, respectively, woulil of
tlitiniielves have established a binding contract
Ktweeii pLiintilF and defenilant. Il>.
ijiwre, whether it is a misdirection to tell the
jury that a telegraphic communication is to be
ukiii must strongly against the sender. //(.
I'laiiititl' teli'grapheil to ilefendant, in luiswcr
ti. :m eiKiuiry about itrice and ipiantity ol' biittei'
.III b.iad, th.'it lie had 100 kegs at 'JO cents, and
ililViidant replied he wonlil take it, ;/" i/h/k/.
I'lmitilf did not state, in reply, th;it it wiis
^'iiimI, nr ("tier to guarantee tint it was, but two
.lays alter lie again tehigraphed to come and
sliipthe Imtter or send l$l,.')0(), to which rlefen-
(laiit answered, that he would try and ace him
the fdlliiwing week. After tlie lapse of several
ilay.s |il:iiiitiireii<|uired whether defendant inten-
ded tiiking the liuttcr or not. Ill an action by
jilaintilf against defendant : Keld, that tliere was
iiii iiiiiding contract between the ]>arties, and a
iKiiisuit w.as therefore directeil. Mcliitimh v.
/(nV/.'JOC. r. 4-.>(>.
Tile idaintiir, on the 14tli .liinc, by telegrajdi,
: iuked defendaiits their prices for high wines and
i whiskey. (Ill the Kith, defeiulants wrote, spe-
I'ifyiii); the prices for ijuantities not 1ch.s tlian a
I eardiiad, luid rei|ucstiiig an order, which they
I said shdiild receive prompt attention. <hi the
ITth, the plaiiititV telegraphed, ".Send three car-
liads high-wiiics." Defendants answeieil that
th • inice had adv.iiiccd, and refused to ileliverat
i the price lir.st iiained. It was almitteil that the
iirderwas re:isiiiial)le in point of ipiantity, and
j that defendants had the giM)ds on hand : IfeM,
tint there was a comiileti! contract, and that de-
feiidatita weiv liable for not delivering. Ifiifhi
\\.llmlfrhiimititl., 31 Q. H. 18.
In an action for non-dolivery of 16 bolea of
hups, alleged to have been sold by defendant
to plaintiffs, thu evidence ohewed that in con-
versation with one of the plaintiffs about the
pundiase of hops, defendant said ho wouhl soil
at 'JO cents pur pound, and woultl keep the offer
open for a few ii lys. .Suliseipiently, on the I7tli
raphed defendant,
loii new hojid at *20
of August, plaiiititi's telegraphed defendant,
" Will tike 1". to 'JO bales goo,'
cents cash." On the 'J 1st defendant replied by
telegram, " Your otfer accepted. Have iHioked
your order for 15 bales new hops for delivery
when picked. " On the Kith .Septenilyjr defen-
dant telegraphed, " Hops picked ready for
delivery. Answerback." On the 'Jlst Moptem-
l)er plaintill's telegraphed, "Our man will he
there ready to receive hops early next week,"
ami on the 'J(itli of September, "Ship the !■%
bales hops to us (ialt to-day, aiul draw at three
days' sight ;" and on the 'J7th, "If hops not
ship]>ed will si^nd team and money for them to-
morrow. Answer ipiick." On the same day de-
fendant replied, " Cannot have hops." A tender
of the iirice was subseipiently made and refused :
-Held, that there was no binding contract at
any time between the [larties, for the defen-
dant's answer of tho 'Jlst of August was not a
siini»le acceptance of the plaintiffs' otfer of the
17th, but (pialitied it both as to (juality (by
leaving mit the word j/ooi/) and as to time of
delivery ; and assuming defendant's telegram of
the Kith Seiitember to be a renewal of such
acceptiince, the plaintiffs' subsctpieut i«,L-^-ranis
did not shew an assent to it. (^itrlur vt ir. v.
niiKjhiini, 3'J i). ». til.'i.
Held, .also, that if there had been a ii^evious
binding contract th" plaintiff's' delay, v aile the
m.'irket was rising, in not answering tlu telegram
of the 10th of September until the 'Jlst, justified
the jury in tinding, as they di<l, that tho plain-
tiff's were not ready and willing to accept and
\)ay for tho hops within a reasonable time. ///.
L., residing at Montreal, agent of defendants
residing in l,iverpo<d, telegraphed and wrote to
the plaintitf at Hamilton, sidiciting orders for
boiler jdati', to be Idled by defendants, spocify-
iiig the ipiality and terms to be delivered f. o. ]>.
at Liverpool. I'laintitf wrote on receipt to L. at
Montreal, enclosing an order for a certain ipian-
tity, to which L. answered next day that the
order wimld go forward by next mail : —Hold,
that the letters and telegrams, more fully set out
in the eiuse, constituted a contract. Held, also,
that suidi contr-K't was made in Ontario, at Hamil-
ton. .l/< ^'I'c, W;/ V. ./.(///.■I W <(/., XM). H. 'J03.
On the 14th Nov., I87'J, defendant wrote to
the plaintill's, who were extensive manufacturers
of l)illiaril tallies, asking what they would re-
(plirc to exchange two seeotid-liand tables of
their own matuitactnre, which defendant had
bought from them two years before, for throe
new tables ; to which the plaintiff' replied lf700.
'I'lie defendant on the 'JOth Nov., wr(,te object-
ing to the price, and offering "two good secontl-
liand tables, one a four-pocket ami oneacarom,"
and S'lM cash. The two tables previously pur-
(diased from plaintiff' were both carom tables,
but one of the plaintiff's swore that he was not
aware of this. In answer, the plaintiff's wrote
explaining about their prices, and added that
they had some rosewood tables "ii hand, "also
some the same as your present tables." After a
long correspondence, of which tho above is the
!''i
Ill' Pj,«III'
711
CONTRACT.
71J
mnat material part, tlio i)laintifffi Ront the threu I
now tii)>lc.H to tliu ilufuiiilaiit, ami ruceivud in ru- 1
turn two HccondOianil tnMuM, but not of tlicir
own nviiiufactiiri;, which they rehiBud to receive.
The U';irn(.'<l .ludge ruled that defendant wan
bounil to aond two tables of the ]ilaintiffa' own
manufacture : - Held, that thin wan a niiHclirec-
tion : that it Hhould liave Iwen left to tlie jury
to liiid, not uieri'ly wiietiier tiio dcfeiiiluiit be-
lieved the plaintiflH to believe that they were to
Ket two secondhand tables of their own manu-
facture, but whether he believed tlie plaintitfit to
believe that he, defendant, «'aH contracting to de-
liver Huch tables ; and that their attention hIkuiIiI
be directed to the diHtiuction )>etween plaintitla
agreeing to take the tables under the l»elief that
they were their own make, and agreeing to
take them under the belief that defendant con-
tracted that they were of such nuike. And
semlde, that, under the circumstanccB, neither
party waa precluded from denying that he had
agreed to the terms of the other, so that there
was in fact no contract. Hilfi/ <l al. v. Sjmlii-
wood, 23 C. P. 318.
One of the plaintill's, W., of Now York, and
his agent, ('., of Ingersoll, saw defendant at his
cheese factory at Stratford, and talked of the
price of cheese. W., in leaving, said any cor-
respondence would be through ('., from whom
defendant would probably hear on plaintifTs' be-
half, when the cheese was ready for sale. Subae-
iiuently, tiie plaintiffs authorized ( '. to buy cheese
from defendant, and on the 20th August, at 4
p.m., ('. telegraphed defiindant, "Name lowest
])rice for your cheese, stating tiie number of
boxes," whieii defendint received on the 21st.
f)n theevenintjof tiie 21st. defendant telograiihed
('., " Will sell 250 cheeses lOi cents," which (!.
received at 9:2r) a.m.. on the 22nil, and immedi-
ately an>*wered by telegraph, " I accent yiuir
offer. When will you box V .Answer,' which
WIS received at the Stratford otiice at 10 a.m.,
and by defemlant on the same diiy. On the
evening of the 2l8t, defendant ha<l left a tele-
gram to be sent to ('. on receipt at the telegrajih
olfiee of ('. 's answer to defeiulant's telegram
naming the price. It read " 1 iiave sold in
Stratford, did not get your answer in time."
This was sent on the 22nd to ('., on the rccei])t
of ('. 's telegram accepting, and ('. answered at
once that tUe plaintitis would claim the clieese.
The defemlant in his evidence stated that he
did not understand that ('. was plaintiffs' agent
when tiiey camt to his factory : -Held, that the
telegrams shewed a complete contract. Qua-re,
per Wilson, .)., whether the words, "when will
you box?" after accepting defendants' offer,
might not be considered as leaving tlie bargain
still open as to time ; but it was inferred from
the evidence, the case being tried without a
jury, that the parties did not so regard it. I'er
Morrisi/n, .1., it was an eiKjuiry collateral to the
contract, and not <|ualifyiiig the acceptance.
IIVW/ tt ,il. V. Sliiininiii, 34 (^ H. 410.
ITeld, also, that the plaintiffs, though foreign
princij)als, might sue ui)on the ('ontract, tiiere
i)eiiig evidence to shew that C. was authorised
by them to enter into it on their behalf, and
tiiat defendant dealt with him as plaintiffs'
agent. //(.
Defendant, living at St. Marys, on the 24tli
■September, 1873, telegraphed tu the plaintiti at
Forest, "C!an you ship three ears Trea<lwellwhui
this incuith at #1.20. Renly." On the wmc d,,
plaintiff answered, " Will accept ymir „|f,.;
three cars Tread well one twenty. On tliua
defendant enclosed a shipping bill to iilaii'tiif
asking him to shij) the wheat lut soon as \„miUt
This liill was a printed form in use on tlitCranj
Trunk railway, Idled up for the tine,. ,,,„
addressing them to the Koyal < 'auadiaii liuni
Montreal. On the next day, he.ariiij,' tliiit tli
railway company ha<l been inserting tlic wcira.
"at owner's risk for delay" in their nIiIiiimiu
bills, defendant telegraphed on the 2(ltii tu tt
plaintiff that he coulil not take tiie wluut if til
plaintiff allowed these words to be ])iit in. '|\
agent of the railway, however, insisted mi insert
ing these words in the bill of lading, ami tiit
plaintiff sent the wheat forward, and drew uijoii
defendant with the bill of lading attaclicil totli.
draft, which defendant refused to ucei'iit, iiiifl
the wheat was sold by the bank. 'I'lie iilajntili
thereuixm sued for goods bargained and mi1i| ;
Held, that the two telegrams ,if tiie 'J4tli Sii,.
teml)er did not form a binding contract: tiiattW
terms of the shimiing note were to lie consiilcrnl
as jiart of the bargain ; and that the iiliiintjlf
therefore could not recover. Williiiri v, Ciirhr
35 Q. li. Not yet reported.
2. Personal fJahHih/.
Assumpsit does not lie against the cipiniiiis-
sioners of the St. Ijiwrenee can il, iimlir ."i Will,
IV. c, 17, for the work done on the e:uial (Jii a
contract made with them, unless it can Ihi hn-
cially shewn that they made theiiistlvM \m
soiially liable, as they mu.st be eou.sidcHil inoiviv
.IS .igciits of the government. Tail v. Hmmlhw
GO. S. 89.
A county superintendent of coimiion sclionU,
signing, together with trustees, a (.'oiitiact with
a teacher, will bo considered to have signal the
same only as approving of the aiiixiiiitnicnt, aii.l
in pursu.ance of the direction of the statutf, .iml
not as a jiarty contracting witii the te.whir.
Ciuniiliill V. Ellioll H al., 3 (,». U. 241.
'I'he plaintiti' sued the defendant for lumlitr
furnished on the occasion of the provincial agri-
cultural society's meeting at llaiiiilton, the
defence was, that the society, which was m
incorporated body, was liable, and iicit tliiMlcltii
dant jiei-sonally. The learned jiidgi' at the tail
left it to the jury to liiid upon the I'vidiiitt
whether the defendant had coii*i'acteii with tin
[ilaintitf personal'y, or as one of a cinnniittif "i
gentlemen who undertook to siiperinttiul, ii;
either of which events he held him to lie [icrsim
ally liable ; but the jury were told that if hf
contr.icted only as rcjiroscntiiig or nii Uhailoi
the corporation, that then he would ndtin'iier-
sonally liable : Held, on motion for a new triiL
the verdict being for the plaintilf, that the riiliut
was correct. Sini/»<(iii v. <'<irr,'ti). H. .'t:'li.
.Scho(d trustees acting under the .statute of li
Vict. c. 20 cannot be sued as iiidiviiiuals iijmi
any ermtract made by them iiink'r the at.itut'ias
trustees. Siin'ijl' v. Puttn'mm il til., .'t (). B, O'JO.
Assumpsit for work and labour. The jiiaiutill
put in a i)aper headed "Memoraiulaof au^giw
nieiit made and entered into this "JSnl of Mwli.
1854, between the directors of the VioUrni
713
CONTRACT.
714
Briiluet'o, of, Ac, i>f the Hnit part, and .(amoii I nifluratioii whiuli caimnt legally lie enfurccil may
I ihn«<>'i. C*" plaintiff,) of," *c. It cnntniiioil ; Itu sutHcit^iit to mintain a jironiiRe. WiuhUI. v.
aiireeniont l>y the plaintiff to ilo curtain work ! AtrCiiU, 4 (>. S. IIU. Sue .S'. ('., 'A (). M. .WJ.
an agreement „ .
for BPecitied prices, wli
limt part hereby agree to pay,"
siinietl I'y defendant, dencriltnig
"Pre*- ^ M."and hythe plaintiff. It appeared
the narty of the I |),,f,.,„i,^„t on tiie 12th March, 18.15, gave
,y, «c., ana was , ,^j^ .„.„uiiB«ory note to tlie plaintiff for fjd.'t
il "."y . .'^'i I iiavalile in twelve nioiitliH, and iniineiliatelv after
lh»t the ciinipany had In'un didy incorjMirated,
mill that the jda'intiff had received CH.V) from
' " ■ ' " Id, th ' '
•I I ill II X' III V
thoin on ftcccmnt of this work : Held, that de-
KMulaiit wild not personally lial>l
Uiumii'iH, i:u^ H. -ill
■ V
g.ive him the fidlowing letter : "Sir, - I have
thi« day received from you the mini of C'Jil.'i, and
for which «um I have >,'iven my promiHHory note
to you, payable in twehc niontliM from tluH
ilate, the original nuin being t''J.*K), and six per
, cent, interest iiiakeri up the amount to tl'Jn.'i ;
Where four parties deHcribc<l, not by their ,.n„i n.itwitliHtanding that you have accepted of
own names and pei-Monal descriptioiiH, but as a , ,„y promissory note at tlu! above .late, it is
cdllectivelutdy not shewn to Incorporate, signed j^.j-fuetly inulerstood between ns that should
muUcaledadeed with their own names and steals ; ' yo,, reipiire the money before the expiry of tho
-Held, that they w.-r-' indivi.lually liound. i ;,^i,i period, 1 shall instantly repay the whole
('iiZ/cH V. A'iV/t/ioh, 10('. I'. .14!t. {amount:" Held, that no action would lie on
The plaintiff sued five defendants, describing this letter, I. From the want of consideration;
them as tho committee of the Presbyterian I 'J. Hecause the contract was usurious on the face
Church at P., for his salary as minister from J rif it. Shimrf v. /{I'liiilr, '•(). S. li")!.
.lanmiry, 1857, t.. August. IS-W It was p.oved j whUe an agreement is open between the
),j verl..d evidence of ditterent mend,c.rs <.f thel^,.^j .^,,,, ^,f^, ^j,,,^ f„, ^f„r,„„„,,. u»h m,t
oougregati<.n, th.it the committee usually cons.s- f^^^j^.^,, ,^ ,,^,^, ,,.,„„,„t J ,^ substituted for
till of eight iKTsons chosen annually, and that a ' • . .« ....'.
njconl "f their proceedings was kept ; that at a
milting of the coinfrefjatioii in I8.")(», it was
aaretHl to give the plaintiff a call, and afterwards,
at another meeting, that he should receive €100
ayear, to tie paid to him from the pew; rents,
«hiih it was customary for the ccunmittee to
raised an imiilicd assuni]iNit to pay in money on
reciuest, is a bindiiij' promise supported ^ly a
good consideration. Slacaulay, . I. .diss, lie/flii r
V. Cook, 4Q. H. 401.
it postponing the period for performance, and
the original consideration will be regarded as
imported into su(di new agreement, and. will
support it. Iliirlliiiii v. Thnninx, .S Q. B. 2ri8 ;
a'Doiini-nv. Jfiiiiill, 11 Q. a 441.
A special assumpsit to pay in grain, or in any
colkct half-yearly. It was not shewn who com- ] jiarticular manner, or at n fiitnri' time, a ron-
imwl tlie I'oiiiniittee in I8.')(!, or that all the de- | /(;/«(')/;/ debt in respect to which the law had
tiiidantii were members of it in 18')T or IH.'iS : ~
HtU, that the action could not be maintained.
Skimrl V. Mnrllii <l ill., IS (). B. 477.
Dcfemlants were a committee of the city
council to iuHiiect and superintend the building Declaration, that it was amongst other things
i)f a gaol. It was determined at a meeting of ! agrceil that in consideration that the plaintiff
the committee that there should be a cereiinuiy 1 had leased from the defendant certain lands at
nil tlie occasion of laying the corner stone, and a | "is. ])er acre, defendant promised to buihl a house
luncheon given in the St. l^iwrcnce Hall; and | and liarn on the premisia, itc. : -Held, bad, as
one of the defendants, the ehairman, give an 'shewing no legal consideration for the agree-
wliT addressed to the plaintiff as "commission i nient, tlie whole |iromise being grounded uijon
rusrchant," for the supply of certain wines spe- | a past consideration. <'iiii)iiiiiili<iiii v. h'iflifinl-
lilied, to lie sent to the St. Ijiwrence Hall, | to/i, 7 i). B. Hi.'t.
If the ]daiiitiir uart with anything that is of
value to himself, though it may be of no legal
value ill defendant's hand, to (ditaiii defendant's
promise, that forms a valid cuiisidcration for
the in'oiiiise. /Iniil/uri/ v. it' lirU ii, (> Q. B. 417.
To su))port an action of debt on a simple con-
tract it must appear tliat the contract has been
entereil into for a roiiniilirntinii iiinvinij to tin-
ilflilor li'iiiiKil/, and not, as in assumpsit, for a con-
sideration moving from the plaintiff to a third
party. Mrhnn v. Tinxliij, 7 (^ B. 40.
Declaration that in consideration that plaintiff,
at defendant's reipiest, had sold to defendant a
certain portion of plaintiff's lot, defendant then
promised the plaintiff, iVc. : - -Held, bad on gen-
eral demurrer, for that the executed considera-
tion, though laid with a reijuest, would not sup-
port the promise. Rifx v. //mrrii/t, 4 C. V. 'J84.
Declaration, that in consideration that tho
plaintiff', at defendant's rci|ucst, lia<l consignetl
and sliipped certain wheat to Messrs. C & B. at
Oswego, defendants promised to advance him a
certain sum thereon, and to sell it for him within
thirty days, and to pay over the proceeds, less
the advanue and charges, &c. ; that the defon-
ulied, to lie sent to ine .-m. ijiwrence nan,
directing him to render his account to the board
iif gaol inspectors. The plaintiff sent his bill to
I the chamlievlain's otHce, headed " K. T., chair-
luiaii lioai'd of gaol inspectors, bought of <i.
[Thomas, agent." The council, however, refused
I to sanction the ex)ieiiditure, and he then sued
j the memliers of the committee w ho were pres-
[ Hit at the meeting when the order was given : -
I Held, that they were iK'isonally liable, and that
[the plaintiff might sue in his own name, (.hie of
I the (lefcndants, the mayor, was present at the
I meeting referred to, and at first objected to the
I expense, but when told that it would be less
jtlian he had heard he did not pei-sevcrc in his
I opposition. He afterwards wrote t<i the cliair-
I nun to say tliat he would attend the ceremony,
Ibutwimlil nut he at the luneheon, liecansi^ he
[was obliged to ieuve town on business, anil be-
I lauje he disapproved of so great .and unsatisfac-
jtor)' an cxiMiiiditure by the committee : -Held,
[niitsnllicieiittoexenipt him from liability with
WilK0iiHiil.,2fH). B. .H31.
I the others. Thmim
n\:
11. Sufficiency ok CoNsniEH.\Tio\.
I Thewonls, "value received," in a stock note
I import prima facie a consideration ; and a con-
i
y
w
! Q
IMAGE EVALUATION
TEST TARGET (MT-3)
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Hiotographic
Sciences
Corporation
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33 WEST MAIN STREET
WEBSTER, N.Y. 14SB0
(716) 872-4S03
£y
'o WiiS. 1
\'
ns
CONTRACT.
p*
(lants did make the advance, but did not sell the
wheat :— Held, bad, as shewing only a past, and
therefore not a sufficient, consicferation. Marlatt
V. Gootkrham et af., 14 Q. B. 221.
Covenant by lessee against lessor on a cove-
nant to deliver possession of the demised prem-
ises to plaintiff' on 20th March, 18(54, assign-
ing as a breach that defendant had not delivered
possession to plaintiff and had deprived him of
the nse of the laml and premises. Defendant
pleaded, on equitable grounds, that plaintiff,
by an agreement in writing, executed cotempo-
raneousTy with t)ic lease, in consideration tliat
defendant had leased to liim the premises men-
tioned in the declaration, wliicli were then in
the possessi(m of one J. Y., who had agreed to
surrender possession l)y the said 20th of Marcli,
agreed not to bring any claim or damage against
defendant if possession could not be obtained on
the day, as provided in the ileed, averring that
on the 20th March Y. was and continued in
possession of the premises, and refused to deliver
them up to defendant, who consecjuently could
not obtain possession thereof on the said day,
and could not by reason thereof deliver posses-
sion on 20th March to plaintiff. Plaintiff new
assigned that he brought his action as well for
the causes attempted to be justified as for not
giving possession of the premises on 21st March :
— Held, on demurrer to both plea and new
assignment, that the plea was bad as a legal and
equitable defence for want of a good considera-
tion, alleging as it did a past consideration as
that on which the agreement was based. Wi/mn
V. Kei/.'i, 15 C. r. 32.
An antecedent debt in respect of which an
insolvent has duly received his discharge under
the in.solvent acts of 18(i4 and 1809, is a con-
tinuing debt in conscience, and a sufficient con-
sideration for a new promise to pay it. A nntin
v. Oovdo)), :2 Q. B. G21.
Where defendant promised that if plaintiff
would sell land to Mrs. A. B. , and take a mort-
gage from hei' for jjayment of the purchase
money by a certain daj', the money should lie
paid on that day : — Held, that assumpsit would
lie against defendant on the uon-paymunt of the
mortgage, and that a plea of Mrs. A. B. 's cover-
ture was a bad plea. Semlde, however, tliat
such a plea would be a good defence where a
promise of the defendant is set up in the declar-
ation, as founiled on a consitleration of the
plaintiff's forbearance to sue a married woman
for a debt alleged to be previously due by lier.
Mdwfs v. Mcani, 7 Q. B. 2,33.
Where a married woman procured the plaintiff
to endorse for lier a bill of exchange, promising
to indemnify him, and after her husband's death
renewed the promise : — Held, that no action
would lie, though it was averred that the bill was
negotiated for the defen<lant'8 own use. Lee r.
Muggeridge, fl Taunt. .3(5, hchl to be in effect
overruled. D'ij'k' v. Wortli;/, 1 ! Q. B. 328.
The plaintiff declare<l on a special agreement,
not under seal, that in consideration that the
plaintiff", then a bailiff of a Division Court, would
do his duty as the law directed in seizing and
selling crops on the farm of one K. , on account
of a certain judgment obtained by defendant
against one M. , he, defendant, then promised the
plaintiff' to indemnify him against all risk that
light arise in relation to hia doing his said
uty :— Held, that sufficient consideration an.
Robertson v. limulf,H
m _
duty
peared for the promise.
11 Q, B. 407.
A deposit of money by the plaintiff with >
third party for a limited time, during whiul, d-!
fendants would ascertain facts : — Held, a suit'
cient consideration to support a promiat U
defeiKlants to delay entering a judgment aiii'
issuing execution. Heed v. CarraU el nl - r
P. 283.
C. had contracted with defendants to carrv
their lumber from Collingwood to Chicago uik
had chartered plaintiff's vessel for that ijurnost
C. being indeljtcd to plaintiff', gave him tuM
orders on defendants for £211 10s. Od. l)^,f^.,^.
(lants did not accept the orders formally whin
presented, l)ut retained them and gave pLiintitf
a written authority to draw on them at ten day,
on the return of the vessel to Colliiigwnuii'
Plaintiff' drew accordingly, but defendants thcii
told him that 0. had been overpaid by them
and they refused to accept. It was sliewn tliat
the plaintiff had threatened to detain the himbn
on its arrival at Chicago if his claim was not
paid, and was told by defendants that it would
be satisfied out of the moneys coming to ( '. un
the return of the vessel : — Held, that the iJain-
tiff' was entitled to recover, for that the evideiico
sufficiently shewed a discharge of C. hy tht
plaintiff, or a giving time to him until teii days
after tlie return of the schooner, either of whioli
would form a good consideration for defendant's
promise. Quiere, whether plaintiff's forbearing i
to detain defendants' lumber as he had threat-
ened, would have been a sufficient consideratidii,
it beii;^ unknown to the parties whether the law
at Chicago would allow him such right, thoii»li
our law clearly would not. Moberli/ \: J!m,,
etal, 15 Q. B. 25.
Defendant with others signed the following',
his subscription being §100 : — " We the umler'
signed do hereby severally promise and agree tn
pay to F. W. T., Esq., (the plaintitl',) agent of tlw
Bank of Montreal in Goderich, tlie sums set tf
posite our respective names, for tlie purpose u;
building an Episcopal Church and rectory in tlie
town of fioilerich. " The declaration thereon
alleged that in consideration that \\. and others
would promise defendant to pay the phiiu'ill
certain specified sums for the ptirp().se, &o., ami
that plaintiff would pay .flOO for the same piir
pose, defendant promised to pay plaintitl SIOJ
therefor ; that W. and others did promise aiul
pay accordingly, and the plaintiff" paid .$100, ytt
defendant had not paid. At the trial the i)l:iiii-
tiff 's promise to contribute $100 was not proved;
Held, that on this ground defendant was entitleil
to succeed. Heltl, also, that the iiLstruraent m
the several promissory not'' of each .subscrilier ;
and as it seemed that the plaintiff was entitleil
to recover, though not upon these pleadings ami
evidence, a new trial was ordered on pajineiiiut
costs. Tfioinan v. Ornci', 15 C. P. 4(52.
Tiie plaintiff" decl.'-ed that on the 12th of De-
cember, 1857, one T. mortgaged certain lands to
defendant for ii300, and defendant by a mciiiitr
andum in writing, signed by saiil T. and ilel'eii
dant, then agreed with T. to lease said liiiJ
from him (T. ) for two years at £40 a year, iiliich
said rent defendant and T. then lagreed should be
endorsed on and taken in part payment »f tlie
the foUmving,
'u the miller-
ami agi'ot to
agent lit llir
['. sums stt op-
Iht piirpiise ii!
Irectury in the
latioii thereuii
^V. anil iitliers
the i)liiiii!iii'
lose, &L'., aiiil
the same imr-
jplaintitlslOi)
pnimisL' iuiil
haid .$100, yd
•ial the iiliin-
Isnot iii'iivtsl:
It waseiititleil
Ltrument wii
li subscrilxr ;
was entitlfil
ileailiiigs ami
[u pavTiieiit I'i
|4(V.'."
I'Jth of lie-
[•t:vinlaiiil«tn
I by a mcuior-
, and iltfeii
ae said l«i'l
I year, wliitb
bcdshoulill*
Went iif 'li*
CONTRACT.
717
mortgage so soon as the two years should have
elaiised; that afterwards, in April, 1858, defen-
dant sold and assigned said mortgage to the
nlaiutiff, and then promised the plaiiititf to pay
him the said £80 at the end of said two years,
Imt did not pay the same :— Held, on demurrer,
tliat the declaration was insullicient, for the
ai;recment between defendant and plaintiff would
tie without consideration, as they couhl not with-
(iiit T 's privity compromise his right to the rent.
][nrd<I'-- ir<"-f, 21 Q. B. ()8.
Where the mortgage contains only a proviso
for making it void on payment of the mortgage
money, and a proviso to sell and eject on default,
but no covenant to pay, no liability to pay is
created by mere proof of the mortgage ; there
must be evidence given of a loan or debt, and
a mere promise to pay such money in considera-
tion of forbearance to sue would not be binding,
though, if in consideration of forbearing to sell or
eject, it would be. Jackson et al. v. Yeoman><,
28 y.' B. M.
Defendant, by deed dated UGth September,
1870, ajEre^ ' i-D sell to the plaintitt' all the mer-
chiu'table tmiber, &c., on defendant's land which
the plaintili' could make by the 1st of May, 187 1 ;
:,iiy timber or logs left, standing or cut, after
that date to be the property of defendant. The
plaintiff made a large quantity of tindier, and
ilrew away some of it. On the 27th March,
1871, defendant verbally gave him leave to let
the balance of timber made by him remain on
the lot till fall, if the plaintiff would not strip
the lot too much ; and the plaintiff only cut for
a ilay or too after that. Subsequently, and after
ihe Ist of May, the plaintifl' was forbidden to
take such made timber off by one K., who said
he had bought it, and by defendant who, as one
witness said, claimed it aa his own ; and the
[ilaintiff thereupon brought trover : — Held, that
the made tunber, which vested in the plaintiff
as made, might properly be the subject of a
parol contract with tlefendant, independe -tly of
the deed, and that the desistanee of the plaintiff
from stripping said lot before the 1st of May was
a sutfieient consideration for the parol agreement.
IMeijw Hdmom, 33 Q. B. 215.
See Tyke v. Coitfonl, 14 C. 1'. 64, p. 727 ;
rami V. Wnllnre, 12 0. P. 372, p. 738; Ti/rill
V. Aunk, 1 Q. B. 299, p. 740.
See IV. p, 719.
718
111. Operation of the Statute ok B'hauds.
1. Generally.
The position of .■>, defendant resisting a claim
is more favourably considered than that of a
plaintiff endeavouring to enforce an agreement,
the terms of which may not have been defined
80 as to clearly satisfy the requirements of the
Statute of Frauds. Lawrence v. Errlmiton, 21
Chy. 261.
2. Agreements not to hePer/onned within a Year.
Plaintiff contracted to clear 20 acres of defen-
dant's land, receiving for bis labour all the wood
cut there, aud he was to be allowed 14 months to
perform his contract :~Held, not within the
[utatute, as it might be performed within the
1 year, Hamilton v. McDonell, 5 0. S. 720.
Semble, that under the' facts of this case the
objection that the agreemi-nt upon which the
plaintiff claimed a right to the use of defendant's
cattle was not to be perlcvmcd within a year,
was not tenable. S;ijiiIit\. /fitlei/, S (). H. 255.
An agreement to provide tic plaintitf with
board and hidging, during the temi of hia natural
life : — Held, not within the Statute, as it wouhl
not necessarily endure beyond a year. Staler v.
Smith et uL, l"0 Q. .B. ()30.
Plaintifl' contracted with defendant for the
.sale to defendant of the goodwill of a business.
Plaintiff's part of the agreement was to be per-
formed within a year, though the execution of
<lefendant's portion was to extend beyond that
limit. In an action for non-payment of the pur-
chase money : — lletil, that the Statute of Frauds
did not a]iply. ChriKlir v. Clark, 27 ^i. B. 21 ;
S. C. 1() 0. p. 544.
The plaintiff, on the 29th of 'luly, agreed with
defendants verbally to enter their service as
book-keeper on the l.st of September following,
for a year from that day : Held, a contract not
to be performed within a year from the making
thereof. Dicknon v. Jaci/iieii et nl., 31 Q. B. 141.
Plaintifl' agreed with defendant for the pur-
chase of a piano at a certain price, and upon
certain terms of payment, defendant agreeing to
guarantee that the instrument was then free from
defect, and shouhl so continue for live years ;
and that in case of its becoming defective within
that jteriod defendant would, upon plaintifl' 's
returning it within that time, refund the pur-
chase money : — Held, a contract not to be per-
formed within a year. Nicholls v. Xordheimer,
22 C. P. 48.
M. being owner of the equity of redemption,
verbally assented to an arrangement that "In
consideration of the said M. having promised to
give his personal covenant for the payment of
the said balance of £300 (due on the mortgage),
in three years from 10th February last, with in-
terest to be paid half yearly as a collateral se-
curity, 1 will ]irocure him an extension of time, as
aforesaid, on receiving said covenant from him,"
which was endjodied in a memorandum signed
by the solicitor of the mortgagee, but without
his authority. Proceedings were accordingly
delayed on the mortgage f(jr three years, on the
faith of this promise ; and the mortgagee subse-
quently instituted proceedings in this court to
obtain a sale of the premises, and that M. might
be ordered to pay any deficiency arising on such
sale. Quwre, as part of the agreement (that as
to giving the covenant) was to be performed with-
in a year, but the mortgagee's part embraced a
period of three years, (as <lid also M.'a in regard
to the tin) 3 for payment), whether the Statute
of Frauds would stand in the way of the plain-
tifl' 's recovery. Had M. performed his part by
delivering his covenant, the mortgagee could
have been compelled to execute his. Christie v,
Dowker, 10 Chy. 199.
3. Contract in Consideration of Marriaije.
Qua're, whether a letter written by a third
person, and signed by him, addressed to the
intended wife, and delivered to i er by the in-
tended husband, with a knowledge on his part
of its couteuts, ovideuciug au agreement for u
; I'; ■
'■I" 1%
m
hH
np
I'':
m
CONTRACT.
(20
M' I
ii
settlement by him, would be a sufficient writing
signed by the agent of the party to be charged.
Gilltsj)k V. liroirr, 3 Chy. 558.
IV. Validity as kkkahds I'iblic Poluv.
1. Heah-oint of Tntdt.
The pliiintiflF sued defendant on a IkuuI eon-
ditionetl not to commence business as an hotel-
keeper within three years in a certain township.
At the Assizes the cause and all matters in difTcr-
ence between the parties in connexion with it
were referred. A verdict was taken for the
penalty, subject to a reference. An award
iiavini' been made in favour of tlic plaintifl",
defendant moved to arrest judgment, on the
ground tliat the condition was void, being in
restraint of trade. Tlie application was refused,
this agreement was not void as contrary '
public policy, or as tending to a niuiinjiolv ,
ijcingin undue restraint of trade; and th;itii"»t
not ultra vires of such of the contractiiiT mnii
as were incorporated companies, l)ut was su^i
in its nature as the court would enforic. 7j,
Ontivh Halt Co. v. Tlif Merchants' Salt Co \\
Chy. 5t0.
'2. Other Cams.
An agreement to pay money on a party's nq
bidding at a sheriff 's sale, is not void as Iwic'
contrary to public policy, when the party makiii"
the agreement thereby insured tiie wi'tli(hawa|
of a claim from the land. Wadihl v. .\[,-CijK
4 0. S. 191.
A party suspcctetl of stealing a horse,
on the Krounds that the arbitrator might for all \ brought up on a warrant before a magistral.
1 have decided the point now raised, I ^'i" investigated and dismissed the charge. Tb,
that appeared have decided the point
as he had power to do, or the awanl might have
lH?en upon some otlier matter connected with the \
contract ; but Held, that if the motion had been j
after verdict, without a reference, defendant must |
have succeeded, for the contract being in restraint !
of trade it was necessary to sliew a consideration, j
and none appeared in the declaration. Duires\
v. mikinsun, lit Q. B. (i04.
On sale of goods upon credit to a trader, the j
purchaser covenanted by deed with one K F. , a j
clerk of the veiulore, to buy all his goods from :
them, and that E. F. should be at liberty, at anj !
time while such business w;is carried on, to enter
into the place of business and take possession of
the goods and premises, and wind up the affairs.
The business was carried on for two years and a
half, during which time the vendoi's delivered
goods to a large amount uniler the agreement :
— Held, that the covenant not to purchiise else-
where was not binding on the purchaser (Esteu,
V. C. , doubting) ; but that as he had recijived
goods under the agreement, there was a suffi-
cient consideration tor the covenant, so as entitle
them to the remedies given by the deed ; and
that this was not such an agreement as required
to be registered under the chattel mortgage act,
to enable the vendors to hold as against subse-
cpient purchasers with notice. Fisken v. Ruther-
ford, 8 Chy. It.
The defendant sold to the plaintiff the good-
will of the business of an innkeeper which he
was carrying on in Ijondon, in this Province,
under the name of " Mason's Hotel," or "West-
cm Hotel :" — Held, in appeal, varying the decree
below, that a covenant in the agreement that the
vendor should pay §4,000 in the event of his
carrying on business as an innkee])er within ten
years, was void as an undue restraint of trade.
Mossop V. Mason, 18 (.'hy. 453. See iS'. C. !(>
Chy. 302; 17 Chy. .360.
Se\'eral incorporated companies and individu-
als, engaged in the manufacture and sale of salt,
entered into an .agreement stipulating that the
several parties agreed to combine and .amalga-
mate under the name of "The Canadian Salt
Association," for the purpose of successfully
working the business of salt manufacturing and
to develope and extend the same, and which
provided that all the parties to it should sell all
salt maimfactured by them through the trustees
of the association, and should sell none except
through the trustees : — Held, on demurrer, that
suspected individu.al pretended no right tn tlit
horse, and the nuigistrate, after dismissing tin
charge, restored the horse to its supposed omit-
(the prosecutor), but before doing .so tnok alx*!
of indemnity : — Held, that such bond was iin;
necessarily void, .as contrary to the general nolifv
of the law. Ballard v. Pope, 3 Q. B. 317. '
A liond given to secure a sherifl' a certiin
tixcd salary or otherwise, to Ije paid by Ins ilei).
uty, is void. Foott v Bnlhid; AK). B.480.
Plaintiff decl.ared on a sjiccial agreement not |
under seal, thiit in consideration that the iilain
tiff, then a b.ailiff of a Division Court, woulilili
his duty as the law directed in seizing and stll-
ing crops on the f.arm of one K., on accfmntnial
certain judgment obtained by defendant against I
one M. , he, defendant, then promised the plain- 1
tiff to indemnify him against all risk that might I
arise in rel.ation to his doing his said duty ; tiwt
he did afterwards sell, and that several jiersoiis
claimed the goods, sued the plaintiff, and recov- 1
ered a verdict of £50, which he had been obligd
to pay, yet that defendant refused to indenmifv.
A verdict having been found for the plaintiff;--
Held, on motion to arrest judgment, that tie
declaration sufficiently shewed tiiat the plaintiff
was required to do something which might p)i
sibly turn out to be a legal execution of the ppi-
cess, and therefore that tlio agreement was not
illegal. Robertson v. Broadfoot, 11 Q. B. 40;.
The plaintiffs having a judgment against B.i
P., agreed with defendant that if such judgment.
or any portion of it, should be realized from pnv
perty to be pointed out by him, he, defendant.
should have one-third of the amount so realized;
' ' all costs that m.ay be incurred in ciideavoiiriiij
to make the money to be pay.able by him if uiisnc
cessful, .and the amount of such costs td k tii;
first charge on any proceeds ; the net balance v
lie divided." (roods pointed out by delenilarii
h.aving been seized, were found, on an inter-
pleader issue, to l)e the claimant's. The plait
tiffs thereupon sued defendant on the agreenieDt
for their costs of defence ui the interjjleader, to :
— Held, that if such agreement extended t'
those costs, it was illegal, as being contrari- 1*
public policy, if not within the dehnition".*
champerty ; and if it did not so extend, the plain
tiffs could not recover. Kvrr H al. v. Rmi't.
24 Q. B. 390.
The declaration represented the plaintiffs ami
one C. to have incuvidually associated theiii-
721
CONTRACT.
m
selves together for the purpose of procuring an
act of incorporation as a gas company, which
thev succeeiluil in (il)taining ; that for thia and
(ithcr services rendered thoy had aoijuired a
ilaiin against the company to a certain amount ;
that they were individually possessed of certain
l«mks, &c,, belonging to themselveB relating to
the company, and that, at the request of the
ilefeiulant and one H., they agreed to surrender
ami ih<l surrender to defendant and H : I . All
their said claim against the company ; 2. The
subscription lists; 3. The books, &c., of the
iilaintiffs ; 4. As far as they lawfully could, their
ri.'ht to the interest in or control over the assets
(/the company and the charter of incorporatitm ;
for all of which defendant ami H. jointly anil
scverallv hound themselves to pay the plaiiititls
^3000 . '-Held, on demurrer, that the declaration
was good, for the sale alleged was not of the
franchise and charter of the company, but of the
mere claims of the plaintifl's therein, and their
iiersonal rights and interests in the concern.
Held, also, at the trial, that evidence was admis-
sible to shiew that the subject of the sale was
not the franchise itself, but a mere claim against
,ir right in the company capable of being legally
suld.'^and that the plaintiffs, on the evidence set
luit in the report, were entitled to hold ;heir
venlict. Miller et al. v. Thompson, 15 C. P.
18(i ; 16 C. P. 513.
Upon rehearing, the decree pronounced in this
cause, declaring that a conveyance made for the
pnqKise of enabling an irresponsible person to
justify as special Viail was a transaction against
good conscience and morality, was athnned with
costs. LamjloisY. Babi/, 11 Chy. 21.
A guaranteed to B. (a creditor of C. ) certain
composition notes, which B. was to endorse for
the other creditors of C. B. represented to one
or more of the creditors, before the composition
Has agreed to, that he (B. ) was to ficcept a like
composition himself, but he had a secret bargain
with C. that he should be paid in full : — Held,
on grounds of public policy, that this secret bar-
piin vitiated the whole transaction, and that A.
was not hable to B. on his guarantee. Clarke v.
EMiHj, 11 Chy. 499.
The plaintiffs, S. and W. — S. being a licensed
medical practitioner, and W. an apothecary —
purchaseu the good will of the defendant's i)rac-
tice iis a medical man at I. , defendant agreeing
not to practise withni eight miles of tli.it jilace.
hi an action on this agreement : — Held. th:>t there
was nothing illeg.d in the plaintiffs entering into
partnership : that no intention could be interred
that W. should practise physic contrary to the
statute ; and that the fact of his not being
lioensal could therefore form no defence. Swuii
ml Walker v, Scott, 23 Q. B. 434.
VI. Construction of Contracts.
1. Conditions Precedent.
Where an action was brought on notes pay-
able in work ;— Held, that the plaintiff could re-
.. Cover without proving a demand and refusal to
f <lo some specific work, it being incumbent on the
^defendant to offer to perform work for the plain -
kt:*f. Teal v. Clarksmi, 4 0. S. 372.
tVhcre payment is to be a condition precedent
|:or a cont-irrent act, and is to be made iix a cer-
46
tain manner, the plaintiff must aver a readiness
to piy in the precise m.aniier stipulated. Tan-
wr V. JfErero'lo, 'A Q. B l.">4.
Where the plaintiff dc^-dared in .as.sumpsit on
a special agreement for leasing hind for ten years,
and the igreement, it appeared from tlie declar-
ation, wiis to be reduced into writing to make it
effectual, and the jilaintiff assigned as a breach
that the defendant did not execute the agree-
ment altliough re(|uested, the declaration was
held bad on general demurrer, because it did
not appear that the agreement was reduced to
writing. Lee v. /'unf;/, 2 t^). B. 193.
In declaring on a special agreement, Qujere,
what nnist be averred in the declaration to have
been done ; or what nuiy be left to be set up as
niatt^'r of defence. Semldt', that the intention of
the parties, to be reasonably etdlected from the
whole instrnment, must govern. Eienrt v. liovrx,
5 Q. B. 445.
Declaration, that the plaintiff having an
agreement for a lease of a certain mill-privilege
from A. B., defendant offered for the plaintiff's
right to such privilege certain lands and notes,
or the assignment of a mortgage for t'oOO ; and
"that the plaintiff agreed to accept one of said
offers on or l)efore the ISth March. 1S51, and to
pay the water rent ot the said ]irivikge up to the
1st ot January, 1851 ; and th.it it was uirther
agreed th t the lease i hould be n:ade to deien-
dant from the said A. B. ; and that the plaintiff
did, "afterwards, on the 18th of March, 1851,
accept an assignment of the said mortgage," yet
defendant would not assign the mortgage : —
Held, that as the onus of procuring a lease was
assumed by the plaintiff", the payment of rent up
to the 1st of January, 1851, was of no conse-
quence to defendant, and not material, if the
plaintiff obtained the lease ; and that thevet'oie
a traverse of such payment was an iniiu.iterial
issue. Beiiiii' v. Raijiiiond, 3 C. V. 120.
Quaere, the materiality of a plet travurain ■ vhe
allegatiMii ot the accept 'ice o/ the assignment of
mortgage, and the eflect oi tliat plea. 1 h.
I.>efendeiit agreed to saw for pUuntiff a certain
quantity of logs, whit h plaintiff was to lielivt-r at
his mill, at .speeifioii rates, whicii woiilil have
amounted in all to ^TiOO, and it va> stipulited
that the luontv shouLd lie jmid '• in ea h, or by
a nCfeoluiliK note, at th;'ie nioiithi;, at th^' . nd
of ea.'h ijioii'h's work." To an aet;on lor iiot
sa«ii:g logc^ SI. cUlivertd, defiii'Lait j'b.u'cd that
he had s:iwii miIiio of thj logs, but tin pliuntiti'
refiLsed to pay hiiii tli>.r^ii>i, and that i.c iiad
recovered juiigiiieiit lur such dci.iuli, wli;>.h
judgment was still unsatisfied. ,Seiuble. a good
defence. Biichiii.nii v. .1 /cA r,vo/), lli Q. B. 331.
The declai'ation claimed damages for breach
of a contract between plaintiff and defendant fcu"
sawing timber, containing an agreement by
defendant to supply the plaintiff with such a
portion of the price iis would enable the plaintiff
to carry out the contract, but did not aver any
demand on or refusal by the defendant to supply
such moneys i—Held, bad on demurrer, for the
pajnnent was not a contlition precedent to plain-
tift's performance. Tullock v. Wellti, 7 C. P. 47.
Upon a contract extending over several years
for work and labour to be paid for by instal-
ments, the defendants admitted part perform*
! f
1 (
::i!!
I
^■■■^■■■■1
: I
i 1
723
COMTRACT.
in
aiice of the contract upon which the action was
brouglit, and jilcadeil general non-performance
to the satisfaction of their officer named in the
cnntrivct, and that thoroiigli and complete per-
formance was a condition precedent to i)ayment ;
— Hehl, that l)y payment in part they were not
barred from claiming full performance, and to
the satisfaction, &c., as a condition precedent,
the contract being in consideration of perform-
ance, and not in consideration of his covenant to
perform. Coatxworth v. (Jilii of Toronto, 10 ('.
P. 73. ' ■
Defendants entered into a bond conditioned
that one McK. should pay to the plaintiffs certain
rent in equal monthly payments, with a ])roviso
' ' that the said municipality (the plaintitt's) shall,
on default being made by the said McK. in the
payment of the said amount monthly, give
notice thereof to the said obligors :" — Held, that
the proviso for notice was a condition precedent
to the plaintifi's' right to call upon the defendants
as sureties, and that notice of default not having
been given within a reasonable time, the defen-
dants were relieved, (^urporntion of Chatham v.
JlcCmeul ,il., 1-2 <•. 1". 3r)2.
The question of reasonable notice is one for a
jury, but the undisputed facts leaving no doubt
what the decision of a jury should be, the court
ordered a nonsuit to be entered. //).
Plaintitl' agreed to do certain work for defen-
dant, for which he was to })e paid half in cash on
completion of the work, and half by a bankalile
note at three months, defendant to pay the bank
charges and interest, and the note to be renewed,
if required, for two months longer. PlaintiflF, on
the 30th July, 18(32, sued for the work tlone.
The evidence shewed the- work was not com-
pleted until 2nd of May : — Held, that the action
was brought too soon, and that the payment of
the bank charges by defendant was not a con-
dition precedent to his right to the credit. Fee
V. Whytf, 13 C. P. 83.
Defendant agreed to sell to plaintiff certain
American currency or "greenbacks" in fonr
specific sums, amounting in all to .^57,000 of that
currency, plaintiff giving him with each transac-
tion his note in I'anailian curreucj-, the four
notes being payable at different times and for
different amounts, and also depositing with each
of the first two notes a certain sum of the latter
currency, while with the fourth he deposited
^400 in American currency, as collateral security.
Defendant then delivered to plaintiff four of the
usual broker's notes, in this form, " Sold to * '
deliverable on payment of his note due " * the
sum of * " in American currency." After
the maturity of the lirst note plaintiff asked
defendant if it was necessary to renew it, when
defendant said not, as it drew interest ; but,
after the others had fallen due, defendant wrote
to plaintiff that his notes being still unpaid, he
could not carry the amount of American cur-
rency longer, and had therefore converted it
at that day's rate of exchange, charging his
account with the same. After this, plaintiff
applied to defendant and his solicitors for the
notes, tendering in payment a certain sum,
which was short by some ^10 or more, and the
cheque of one M. ; but the solicitors refused to
give up the notes, stating that they had been
practically paid (by the conversion of the green-
uacks). It further appeared that the plaintiff
had drawn out of defendant's hand.s all hi,
money but the 8400 deposit in j^reciiljaclii
Plaintiff sued defendant on his agrt'cinei'it ',
deliver the American currency, allc^'ini; lii,
readiness and willingness to pay t\n\ imtes \,r,
that defendant waived the i)aymcut on the'iLu's
they became due, and that within a rtiusdnuU
time afterwards, and before action, ho ttnlcr,!
their amount to defendant, who refused n,
accept it : — Held, that the payment of tlic notJ
w.is a condition precedent to delivery of t.C
"(ireenl)acks :" that in the absence" of aw
justification for the nonpayment, plaintitl' coiil'i
not recover ; and that there was no eviiloiice ■•'
plaintiff's rea<liness to pay the notes, or of th.
waiver. WaUh v. livawn, 18 ("'. P. (iO.
W. entereil into a contract fortlie iJiiroljaao n'
property, the price 1)eing payable by instalrants'
and there ))eing a mortgage on the iiidptrtv t.l
the Trust and l^ian Company which Ma,s"ii,.t
due, the vendor wivs to ,Jve the vciultf \V a
boiul of indemnity in respect of the moitnaKe
A ilecree was made at the suit of the venrl(?r fur
si)ecific performance, on the undertaking nf th^
plaintiff, recited in the decree, to iiroourt' a
release or discharge of the nortgage ; inul thi
over-due instalments were orticred to Ijc iiaiii
into the bank subject to the further order ol tht-
court. On a question subse(juently ari.sing as t"
the effect of this undertaking, it was : — Held that
the performance of the undertaking was not a
condition precedent to the paj'ing in df the
money, but was a condition precedent to its
being paid out. Holhson v. Wrkk, 13 Cliy. 41ii,
.See Saxton v. RkUey, 13 Q. B. r)22, p. '%,
2. Implied Contract.
Where there is c\'idence of a loan (jr debt, a
promise to repay it will ])e implied, lfnll'\
Morlei/, 8 Q. B. 584.
The plaiatift" gave to defendant a bill of sale
of certain timlar, in wlvich was contained a pm-
viso for making the same void in case the deien-
dant should pay to the plaintiff £300, ami in-
terest, on a day named, and it was added, "but
if default be made in payment of said l',300 in
part of the whole, contrary to the manner ,iii4
form aforesaid, then it" (the bill of sale) "shall
remain and be in full force and virtue : "— HiM.
on demurrer, that debt would not lie, tlic dwi
not suthciently importing a promise to pay. )['•
Lawjhlin v. Brouie, U y. B. 609.
The specitications for a dwelling house to l«
built stated the work to lie done under ditfcrent
heads, mason, carpenter, &c. ; and contaiiitil ,i
condition that the building must be ooinpleted
by the 15th June, under a penalty of .^I'O per
wp»k as liquidated damages : — Held, that there
was an implied contract by defenilant with eacl
contractor that he should not be wrongfully or
unreasonably delayed in carrying out his con-
tract ; but that where the brick work was neces-
sarily delayed by reason of the frost, and tk
plaintiff's work was thereby impeded, defendant
was not responsible. Lee v. Both iceU, 24 C- P- 10?.
See Ross v. Tait, H. T. 7 Will. IV. p. ;30.
3. Vaijue or Uncertain.
Under the award and declaration, as given in
the statement of this case, the court held that tlie
721
J house lo W
iler iliti'erent
cuut;>uitil J
be oompleteil
of J'.'O pc'
ll, that tkre
|it with each
Irongfully or
lout his con-
Ik was iiecei-
lost, and the
Id, ilefeiiiiant
V24C.P.10?.
p. ;30.
las given in
Lid that the
735
CONTRACT.
126
amount nf £500 awarded to be paid by quarterly
instalments, was stated with sufficient certainty.
)Ya(fon V. Sutherland, 1 Q. B. 229.
\n agreement that A. shall saw certain logs,
anil deliver the lumber at his mill to B. as soon
lis he is able, such sawing to be paid for imrae-
^iatelv on delivery, is not void for uncertainty.
0-Dom,el!y. H„(,i", U Q. B. 441.
4. Other Cane".
A contracts with a company to make a high-
way anil R- becomes his security to them. A.
theu employs C. to cut out certain timber for
him and while C. is thus engaged A. fails in his
cnntraot with the compiny. B., the surety, tells
C to go on and he will see him paid. l'i)on
completing Ins work C. sues A. and B. jointly : ^
-Held, that there was no joint contract by A.
and B. with C, but that A. was primarily liable
on his contract, and B. as a guarantor. Xicholas
v.A>/^'«'..-''Q-B-324.
Held, that the following receipt, "Received
of B. & <-'. a note they held against A. L , on
whicii there was a balance due, September Ist,
1S42, of $400.33, which is to be paid to them in
Michigan treasury warrants ; also a balance of
accounts of 557.17, which is to be paiil in cur-
rent money if enough ia collected ; if not, in
warrants, (Signed) D. O'B.," could not be con-
sidered on the face of it evidence of a promise
hv O'B. personally to pay these debts. Brad-
flalfl III. V. O'Brien, 7 Q. B. 562.
In trespass for mesne profits, before the ver-
diit was taken, the plaintiflF's attorney and the
defendant signed a paper, by which it was agreed
the ciists in the suit should be left to be taxed by,
ic, and the value of the mesne profits should be
decided by. &c.. in case a verdict should be
jjiveu for the plaintiff :— Held, that the words,
"incase a verdict shall be given for the plain-
tiff,'' left it open to defendant to contend against
a verdict at the trial upon any grounds in i.iw,
or \i\)on the merits. Patter/ion v. Prince. 7 Q.
B. 528.
" For value received I promise to pay J. M. ,
and M.. or their order, the sum of £102 1,5s. cy.,
tok paid in yearly proportions ; — Held to give
[ two years for payment. McQueen et al. v. ^fc•
; (jmii, 9 Q. B. .536.
While an agreement is open between the
[ parties, and the time for performance has not
[ arrived, a new agreement may be substituted for
I it. postponing the period for performance, and
[the original consideration M'ill be regarded as
I imported into such new agreement, and will
snpiwrtit. Hiirlhrrtx. TAoji/fM, 3 Q. B. 2,58 ;
[O'flomiW/v. Hiifiill, 11 Q. B. 441.
An indenture of lease w.as made between three
I parties: plaintifl' of firat part, one A. of second
t pirt, and defendant of third part. The party
I of the first part leased to the party of the second
tpart a certiiu hotel, with certain goods and
tchattels ; and the party of the second part cove-
panted, among other things, at the expiration
|«r uthcr sooner detemiin.ation of the lease, to
Ipy the party of the first part the difference
pMtween £550 imd the value of such goods, which
lvalue should he ascertained by, &c. Then it
||roceeded as follows:— "The said party of the
pinl part (defendant) covenauts with the said
party of the first part that the said party of the
second part (lessee) shall pay the difference
between the said sum of £550 and the value of
such of said goods and chattels," &c., not con-
taining the words, "to be ascertained as ni'ore-
said :' — Held, that notwithstanding such omis-
sion, upon nonperformance by the lessee, plaintiff
could recover against defendant. Haiiei* v. Add//,
3 C. P. 262.
Declaration upon an agreement, by which de-
fendant undertook to eoniuience certain work,
"so soon after the opening of navigation this
spring as he eim remove a steam dredge and
working apparatus to I'ort Burwell :" — Held,
insufficient to allege tmly that the spring had
elapsed ; but that it wivs necessary to aver that
since the opening of the navigation defendant
could have removed the dredge. Saxton v.
Bidkii, 13 Q. B. 522.
The declaration charged that the plaintiff,
having recovered judgment against A. & Co.,
was about to sell their goods under a fi. fa., and
in consideration that the plaintiff would with-
draw his writ defendants promised to pay the
amount. It appeared that A. & Co. made an
assignment to the defendants of all their goods,
in trust out of the proceeds to pay their land-
lord's rent and certain executions, of which this
was one, according to their legal priority, then
to pay the preferential creditors named ; and
lastly, to divide the surplus money among the
other creditors executing the assignment. This
a8signir.;nt was executed by the defendants, but
not by the plaintiff". It was put in at the trial
by the plaintiff, and it w.as proved that the de-
fendants had received moneys under it, but no
promise was shewn by them except what was in
the deed, wliich recited that defendants had
agreed to pay these claims out of the proceeds
of the property assigned, if sufficient : — Held,
that the plaintiff's could not recover, the only
jiromise made being that contained in the deed,
which was to pay out of the proceeds of the
goods. Narri-i V. Biintin tt al., 16 Q. B. 59.
])eclaration by A.. B. and C, plaintiff's. First
count, that A. and B. agreed to perfoiTu certain
work on a railway for defendant, and having
.associated ('. with them tvs a co-partner, com-
menced the same : that defendant l)ecame desi-
rous of discontinuing and suspending said work,
and it was then .agreed between the plaintiff's
and defendant in writing that it should be sus-
pended, and at the option of defendant entirely
abandoned, and if abandoned, that the plaintiff's
should receive from defendant another contract
on a substituted line equally advantageous to
them, and if the work should bo resumed the
plaintiff's should repay defendant a specified sum.
Breach, that defendant wholly refused to allow
the plaintiff's to resume said work, and hindered
and prevented them from so doing, and neglected
to give the plaintiffs another contract, and took
said work into his own hands, and gave it to
other persons : — Held, on demurrer to the whole
declaration, that the first count was bad, as not
shewmg a breach of the agi-eement declared
upon, which M'as only to give a new contract if
the first should be abandoned, and it was not
abandonetl, but gone on with. Uuuhl et ul. v.
Ozotrnk-i, 17 Q. B. 52.
Articles of agreement made on, &c. , between
O. of the first part, and .S. of the second part,
I
■ -'it
1' • !
rw
727
CONTRACT.
m
witnosseth thnt the said O. hath agreed to sell,
niid l)y these ])reserits doth hnrg in ftiid sell unto
said S. , ,'i!! md siiignlnr tint certnin lensehold
]iro))erty ind jiremises, being con)|)ns('d of, kc,
for the ]jrire ol' t'SfiO. to lie i);ii(l ;i8 folhiwn : ll.'iO
ilown, and the remiiiiider in four U(|U;\1 annual
iuHtalnients. Then followed a eovenant \>y O,
that if S. sliould ilnly pay the said sums, and
should pav and save harmless s.'id (). from tlu:
rout due by the leases under wliirh O. held, then
the said O. would assign and eonvey the afore-
snil leasehold, and the njiiiurten'Uiees thereof, by
s.iid S. : Hell', an 'L'reement to assign only,
not an assignment of 0. 's interest. Tni/lor v.
Siil/oii, 18 Q. B. (Mo.
Held, that nnder the agreement between the
' city of Kingston AVater Works Co., and the
cnrpoatir.n of the city, set out in this ease, the
coin])iny were not bound to .sujiply water gra-
tuitously to the city for any purpose at more
thiu twenty hydrmts. Tlii- Cor/nint/liin nf tin-
Ciltl nf Kin/ifoii V Tlif C'lti/ of Klminloii WkU'?-
Works (.'o., 19 Q. B. 4!) i.
Held, thit the condition clause written across
the face of a niirine policy of insurance Tuust
prevail over the printed parts of the policy which
are at vari nice with it. Mear/her v. 7'he Home
ImttmncCo., 11 0. P. S'2S;' Meagher \. jEtna
Insurance Co., 20 Q. B. 607.
Plaintiff undertook to build for defendants all
the bridges on a portion of the Grand Trunk
Riilway, and furnish the iron, "same to be
shipped on board steamships from Crreat Britain
to Montred, the defendants p tying the differ-
ence between freight and insurance by steam-
ships and fivst-clvss siiling ships:" — Held, that
they were bound to piy such difference on all
shipments, not merely on those made at a time
when sailing vessels could be procured. Couhon
V. Gzowski et al. , 22 Q. B. 33.
In support of an account stated as set out in
the declantion, the following memoramlum was
put in evidence : "$300— Oood to T. T. to the
amount of §300, to be paid to him or his order
at E. C. 's mill, in the township of Elma, in the
county of Perth, in lumber at cash price. — •
Signed, J. C. sen., J. C. :" — Held, a sufficient
acKuowledgmeut of debt or liability and a pro-
mise to pay, and that it imported a sufficient
consideration to sustain the account stated in
the declaration. Tijke v. Co.f/or(I, 14 C. P. (54.
Declar.ation on a marine policy, setting out the
issue of same by defendants, and of a similar
one by another company ; that the vessel was
lost ; that by the policy defendants were allowed
in certain cases to interpose, recover and repair
the vessel : that the vessel sank while towed by
plaintiff 'stug ; that defendants and theotherccmi-
pany, being desirous of recovering the vessel, by
their respective duly authorized agents in that
behalf, entered into an agreement in writing
with plaintiff, reciting the loss, and that plaintiff
should raise the vessel for $3,000, and the plain-
tiff, defendants, and the other cimipany should
submit to the arbitrament of arl)itrators, one to be
chosen by the plaintiff, another by the defendants
and the other company, and the third by the two
so chosen, the question by whom said money and
other expenses should be paid, &c. ; that the plain-
tiff raised the vessel ; had always been willing
to appoint, and did appoint, an arbitrator, and
artl
was willing to submit such questinn 4-
of whitdi the two companies had mitic'i'
although the iilaintiff re()Ucstoil tluii] i.
yet the defemlants always since wiDn'irfniL
refused, either in coneert with the otlicr cni'
pany or otherwise, to appoint an arljitr:it„t
c.ml alvays wrongfully refused and euntinul,',
, to refuue to appoint or concur in a]i]iointj|,,
I on their behalf and that of the otlni- ciiiiinn,!'
and by reason of such wrongful refu.sal, ic. A,' '
I Held, f)n dennirrer, good, and that an (ilijecli',
I that the agreement wa.s not shewn to have lit-i
j uuiier seal was preni.ature, for thai, it m'J,,
1 cither arise as a matter of evidence at tlie tirl
or l)e made the subject of a plea ; and th.it i'
the face of the averment that the act ilnni- l,v
wliieli it was sought to bind defeudanta, wm \r
an agent duly autliorized, it eouhl not be iis.iumJi
that the authority was not full and sutticiint
Held, also, that the contract disclosed was joint.
that defendants couhl have pleaded in aliatt-
ment ; that each was liable for the other, whttlitt
the joint non -performance was caused liysuel
other or not ; and that, there being uu nlea in
abatement, the declaration was go(jd against tli*
demurrer. Calvin v. Provincial himrutict (',!'
■JOC. P. 21.
On the 2nd of July, 1869, the plaintiff con.
tracted with one H. as clerk of tht; joint cum-
mittee of both houses of parliament, to do the i
printing, &c. , for both houses at scbeduled prices,
(.)n the 7th of October, 18()9, the plaintiff cm'i.
tracted with Her Majesty for .dl tlie printin.'l
required for the several dej-artnients, to Ix^I
specified in requisitions t() be laade ui)on liini In- 1
the departments respectively, ineliulinf; tljel
postmaster-gener d's depart',nent, at scht'dulwl
prices ; which were lower than under the first I
contract, and so tendered for as alleged by njain- 1
tiff, because he expected in cases wliere similar I
matter was required ur.der 1)oth contracts, t.i I
use the type set to fulfil one for the other. When I
the contracts were entered into the custom was |
for the annual reports of the heads of depart
ments to be printed on the order of and j)aiil
for by such departments, and the copies reiiuireJ
for parliament were onlered and \)\w\ forsep
arately through the clerk of the joint coniminee
on printing ; but afterwards, by resolution of
the committee, concurred in by the House, it
was directed that the annual reports sLoulJ be
printed on the order of the committee, uii^ler
the first contract, including a sufiieient luunber
for the use of the departments, with which tlit
dej)artments should be charged. The reports"!
the postmaster-general having bei'u thus oniereil
and printed, the plaintiff' clamied to charge for
the extra number required for the dep.irtnieiii
under the second contract, and for the compo-
sition as though re-set for the department :-
Held, that he had no such right. Taiilw v.
Campbell, FoKtmiiMcr General, 3.3 Q. K 'iw.
Declaration on a fire policy for §1,000, apU
on equitable grounds, stated that by tlie pohcy
whenever the defendantsshould pay any losstotke
insured, he agreed to assign overall his right to
recover satisfaction therefor from any other
person, town, or other corporation, or to prose-
cute therefor at the charge and for the aceoMt
of defendants' if requested. Senible, perWilsot,
J., that defendants had not the right under such
agreement to elect whether the plaintiff should
assign or prosecute. Jieemr v. Provincial hm-
CONTRACT.
T29
Declarixtioii under C. S. V. V. .-. 78 by the
^Imiiiistratorof A. ullegin^' that A. was h.wfi.llv
1 the iilatforni at a station on .letend.mtH rail-
'Iv iui>t the defendants ho negligently inimaged
.,n, '.lr..ve an engine and earriages loaded with
t mhw ah'iiK the line near mvul station that a
ieceof timber projeeting from said carriages
n k lu.a kille.l the ..aid A. I'lea that A. wa,
!,,ew^lM>v in the enipl-.y ot G. & Co., vending
'Lon ('11 defendants' trains, under an agree-
„lt Iwtwccn C. & < '«'• ivnd defendnnts. whieli
lit i.rovided that defendants
'30
See also Prorinnul In- \ several contract between each tradesman and
the defendant, not a joint contract with all. LfK
V. nolliiirll, 24 C. r. 109.
Tiie i>laintitl's and defendant entered into a
joint venture to form a comiiany to work a mine
in land foriniiig i)art of a townsliip road allow-
ance, the clefendant to form the company, and
the iduiitifTs to vest in the company the mineral
right in the land. The plaintifl's accordingly
I'lea, that A. was ' procured a by-law to lie jiasscd by the munici-
pality for the sale of the mineral rights, under
sec. 44'J of the Municipal Act, which authorizes
such sale, but with tiie jiroviso that the public
travel should not be interfered with. A con-
veyance containing the above proviso was, with
the defendant's consent, made to one K. H. J.,
who executed a foniial declaration of trust of
one third interest to the idaintifl's, but not of the
l)alance ; but he stated that he held the wh(do
land ill trust for plaintiflfs, and was willing to
aaeement provineti u.ai. .iv.-.ci...m..-.. should
mrrvC * ('"■. their newsboys tiwd agents, on
their trains, and shouM not be liable for any lu-
- -'■•• ')f said C. & ('"
iiin- to the persons or property of saul C .
their newsboys or agents, whether occasioned
i>,7 iWfendaiits' negligence or otherwise : -Held,
I JmKl without alleging that A. was a party : Ian. I in trust lor plaintiH.s, ami was willing to
r,r aware of the agreement. Qmere. if such con- i eoiivey .-.s Miey directed, an.l the plamtitls m-
r^c is to be consiifered as made with the person : f-nned defcdaiit that they were rea.ly to eon-
rri,.! and if so, as to the etlect of his being an ; vey to liini. I he defendant obtained an act
' y_ Toronto anil XipiH^iimj ' incorporating a company to M-ork the mine ana
carried, and i
mIv cil'sTg.' B.' 474 rafti'nned on appeal, 34 ! issue- stockrwhich company provt.l a failure,
n irq ^"t through no default of detendant, who was
Q' "• * 1 • I i the heaviest loser of all the parties interested.
Declaration on a deed set out in it, by which jj^g plaintiffs having sued the defendant for not
plaintiff was to do all the work on an extension forming the joint stock company, or carrying on
of defendants' railway. Clause 20 provided that ,„i,ii„g operations, and having obt'iiued a verdict
the plaintiff would acce])t during the hrst hye for §400 -.—Held, that the verdict must be re-
months defendants' notes at three months in 1 ,ii,ced to nominal damages. Johns el al. v. Berk,
mvment, defendants agreeing to place at the 04 C. P. 219.
order of the plaintiff, till the notes were paid
Hebl, also, that the conveyance by the muni-
sec. 442,
stopping of
vthom defendants' bonds to the value of said , . ... . ,. . , • r. ,
It^^ such bonds being estimated at 8^5 per i<^'l'alit.V of the m.nera rights^ un.ler
i of heir^^^^^^^^ value, and after the Hrst tWe >vas suthcient, and that sec. 441 for st
cent. 01 wiBii ic"-^' •'* i+„„„„^,„„i, iironfl, i a road allowance did not apply, ih.
months defendants agreed to pay cash. Ureacli, 1 1 j
thit defendants did not during the first hve Held, also, that although the conveyaiu c of
months "dehver to the plaintiff then l.viUiis to '■ the mineral rights was to E. B. ■!., the defendant
the value of the notes, &c. ;— Held, breach bad, ] could not ur^ge that he could not be compelled to
tor defendants' covenant was to place said bonds , convey, owing to the absence of any writing ;
jt the order of plaintiff, which was capable of a [ and that the plaintiffs hav-ing control of the title,
different meaning. Shanl'/V- Midland Bollwaij
,/C'anflrfa, 33Q. B. G04.
On a contract to put up hoists to be "capable
of raising a weight of 2000 ttis. without risk :"—
Held, that the contract required the hoists to be
cmble of working in the ordinary way with a
weiKbt of 2000 fts. Hamilton v. Mi/len, 23 C. 1*.
293. But see S. C. in appeal, 24 C. V. Not
yet reported.
On a sale of malleable iron works " and all
machinery and tools in and about the said works
connected therewith :" Quiere, whether anneal-
ing pots used in the manufacture of inm would
pass under the word, "tools;" but,— Held, that
this w,i8 a miesticm for the jury. FiMik v.
Hogg, 35 Q. B. 94.
The contract, based upon the separate tenders
by the different tradesmen signing it, was as
follows ; "We the undersigned hereby agree to
build, erect, complete, and finish the dwelling
house, &c., mentioned in the foregoing specifica-
tious, for the respective sums hereinafter speci-
fied, by the time mentioned in the condition of
said specifications, and according to the foUow-
ing trades." The tratles with the contract price
for each were then set out, a space being left
after each for the respective contractors to sign
their names ; ami the plaintiff thus contracted
for the carpenter and joiuer's work :— Held, a
were in a position to aver and prove their readi-
ness to perform the agreement. Il>.
VII. Waiver anp Substituted Contract.
I. Oenerallj/.
Where an agreement under seal, for the com-
pletion of certain work, had been entered into
by one of two plaintiffs, and the other, who was
not mentioned in it, signed and sealed it also,
and afterwards assisted in the work, and was
recognized and paid liy defendant, for whose ben-
efit the work was done, as a joint contractor
with the plaintiff mentioned in the instrument : —
Held, that assumpsit was maintainable by both
for the value of the work, an implied parol
agreement having l)een substituted for the instru-
ment under seal, /to." '/ nl. v. Tnit, H. T. 7
Will. IV.
While ail agreement is open between the
parties, and the time for performance hits not
arrived, a new agreement m^y be substituted for
it postponing the period for performance, and
the original consideration will be regarded as
imported into such new agreement, and will
support it. HurlhuH v. Thoman, 3 Q. B. 258 ;
O'Dfmnell V. HwiiU, 1 1 Q. B. 441.
To a declaration upon a sealed agreement to
build a vessel for plaintiff, of a cer^in size and
II
by
781
CONTRACT.
732
ftccorcling to a certain inodul, by ii uertaiii day,
&c,, (lofondant pleaded, that lie proourod nuiti--
ria'.H, and before lireaeh of the agreement lio
was ordered l)y phvintitrto)>iiiMa venselof larger
size ; and that in purnuan(^c of plaintiiVw direi'-
tiontt, and liy hi* order and ru(iiieHt, lie did ereut
and hnild nneii larger veHsel, and ua» eonwe-
(juently eonipoUed to take a longer time, whieh
is the hreacli complained of:- Held, no answer
to the declaration, (liid'iiiy. < 'ininlir, {\ C 1'. !)!•.
F)('elaration on a eontraet by a testator to Iniild
a marine boiler and steam engine for jilaintiir,
alleging partial completion l)y testator liefori' his
<lcath, and a promise by defendants as i^xeentors
to complete it for tlic ))alance due, but that they
(lid not eom])lete it in tinn-, and delivered it
unlinisiied and not according to the specifica-
tions, &e. 'I'lie 7th plisv state<l that aftiT testa-
tor's contract and i)roniisc, it was agreed iietwecMi
him and pln'ntifV in his lifetinu! that he sliould
uotperforin tlicni,but that instead testator should
deliver to plaintitl', who was to accept, a diU'ercnt
boiler and engine, larger and more valuable,
requiring a longer time for construction ; and
ftfterwards, before action, testator in his life-
time, and defendants as executors, did make and
deliver to plaintitl', who accepted the same ui)on
such terms, and paid the i)riee thereof : — Held,
bad. LcoiDifd V. Xnrtluji ct <i/., '2'2 C. V. II.
Declaration, that defendant agreed to sell and
deliver to plaintiff within one week certain
wheat, and tho i)laintift' advanced iJliOO on ac-
count, yet defenilant failed to deliver. Plea,
that liefore breach, it was agreed tint the plain-
tifl' should, and he did waive the delivery within
one week, and extended tlie time for delivery ;
Held, plea bad, for no snbse(jucnt delivery was
alleged, nor that the extended time had not
elapsed. Molmn v, linuViurii, 2.') Q. B. 457.
Defendant, in June, 18")o, agreed t(j employ
plaintiffs' ve.s8el in carrying lumber from Bear
Creek to Montreal, until the close of navigation.
After some correspondence between plaintiff and
<lefendants' agent, she was sent for tlu! last trip
to Clei-eland, and thei-e took in a load of corn
for Montreal, which brought :£170 less freight
than a cargo of timber from Bear Creek would
have done: — Held, that the letters, set out in the
case, contained no agreement on defendant's
part to pay such diH'erence ; but that the plain-
tiffs' remedy was on the original conti'act, —
Burns, J., diss., and holding that by the conduct
of the parties the original agreement was jmt
an end to, and that the facts proved, together
with the letters, constituted an agreement to
substitute a cargo of grain for timber, making a
fair compensation for the dift'erence. Mrl'herson
et ill. v. Cnweron, 15 Q. B. 48.
Declaration on a bond conditioned to convey to
the plaintiffs within three months a certain
steamboat, and for (juiet possession of the same
from the making of the bond, assigning as
breaches, 1. Not conveying within three months;
'2. An eviction by one O. S. (}. under the power
in a mortgage derived from the defendants.
Pleas, to the first breach, that said steamboat
was mortgaged to J. H. C!. at the time of the
execution of the bond, for the same amount as
plaintififs had agreed to pay defendants, and that
defendants had handeil him the notes given by
plaintiffs for the price ; ami the said J. H. C. held
the mortgage only as security for due payment
thereof, and plaintiffs thereupon diseharffeil ,|,
fendants from j>rocuring such conveyancf. Pi
to second breach, after stating a similar iint.
I ment, alleged a transfer of the mortgage friini'i
H. ('. to (>. S. (}., an<l that the plaintiffs m,,!,
', ilefault in their agreement by nonpayment df,,!
j of the notes, whereupon (t. S. (i. touk \»n^^
I sion, claiming an eiiuitablc interest liy virtii' '/
said agreement with defendant and lii.saHsii/i|,..,
Moth |ileas held bad on demurrer, the tilainti'i,
jengagnig to apply their payments ti,\v,inl, i,,!
encumbrance not amfiunting to a waiver nf tl,' !
right to a conveyance from the vendors r, ■/
j I't ill. V. l'i,/t,»i ft III., 7 (*. I'. 20!). ' " '
i (I. and S., the managers of certain steuiulmu,
running in oi)position, S. having only dUf I,,,;,)"
and (J. two, referred to arbitration the terms „i
which the opposition should cease. The uil.i
trators awanied that each l)arty sliould run' (.ur
boat at different hours, and that S. shouM liav
(i. CI 50. Afterwards G. and some of the mn'm
of the steamer for which S. was agent fiiteM
I into an agreement respecting tlic two Imau
I which the award allowed to run, which Htitnl
! that the parties had agreeil to setUe tlie ciinimtw
\ between them as steamboat owners on tlie ful.
' lowing tenns, and then specilied the h(]iiis ami
days on which the boats were to leave tiie ilif.
ferent ports ; but it was expressly ileclared that
this agreement was without prejudice t.i any
demand which G. might have upon S. :— Held'
that G.'s right to the £150 awarded wui ii„t
affected by such agreement. Gildi'nhir,' \
Sffwnrt, 2 P. R. 114.— P. C. -Burns.
Declaration on a bond to plaintiff, seciiiiui; i
payment by L. of the rent of certain premise, !
and averring that rent was then in arrear. I'loi
on equitable grounds, that L. had died, liaviiw
by will appointed defendant and anutlier Ins
executors, who continued in possession of the
premises as tenants to plaintiff under the kasc
to L. until a certain <tay, when an agrceincnt
(not stated to have been in writing) was eiiteMl
into between the widow of L., the defeiulant,
and the other executor, as executors, ami one S.,
with plaintiff's consent, that S. should purchte
the lease of the premises for the amount of rent
then agreed upon as in arrear, and that the widow
and executors should surrender the lea.se ami
possession of the premises, and S. should btoonif
tenant to plaintiffs, and should have additi'iiial
yard room, &c., .and should in eoi'siileiatimi
j thereof give his note payable to plaintiff li„ I'.r
: the said agreed sum, and defendant slioiilil u
j accommodation, .and as surety for S., joiiilmii
i as maker of the note : that the tenancy ainl
defendant's liability on the bond and in iesi«ct
of the rent should cease, and plaintiffs slioull
accept the note and surrender of the least aiiJ
possession in satisfaction and discharge of the
rent then overdue, and of defendant's liahility
up(m the l)ond and lease : that an endorsement
was made under the hands and seals of the exe-
cutors and the widow upon the lease, at jilaiii'
tiffs' request and accepted by them, surrenderiDj
to plaintiffs said lease and all the estate m
interest of the testator at the time of bis daitli
in the premises, as .also their own interest therein
as his executors, and that the widow consenteil
thereto, and also surrendered to plaintiffs : thst
the note for the rent was made by S. and dcfen'
dant payable to plaintiff B., .anil delivered by
S. to plaintiffs, and plaintiffs took possessiou of
;33
CONTRACT.
731
tiu' iircmiBcs, and lU^cuptcil the H\irri^iiiUT thtrinl
,„ lull satmfftctidii ami iliNclmiHi'. lU'idic iitimi,
„,i cciiiitiililt' gnuinilH, Hcttiiij,' up, l.y wiiy i>\
latopl*' '" '''" uilniiHHiliility iir tlit! plea, timt in
■111 ^ictiiin ill till' Cimiity <'(mrt ii|ii>ii wiiiil imti'
u'liinBtdi'liiiilant anil S., tliuy liiwl ]>liailiHl an
(iitircly (liHtM-iiiit afeTt^fnii-nt tiMmi tiiat iilligid
iri the ttbnvc pica respci'ting Hiiid noti', ami that
tlic coiuiilcratiiiii lor the notu had wholly failed :
'hat the jury had found the issue joined there-
mi in their favour; and that defendant siilise-
iiucntly, ii|'f'" motion for a new trial, made an<l
I led an atlidavit stating that neither defendant
„„r S. hiul ever received any lienetit, \-e., for
^:ii,l note, iir in payment thereof, |,y reason of
uhiL'h said acts antl statements plaiiititrs had
licin prevented from recovering the amount id'
sniil note ;— Held, on demurrer, plea good, lioth
\n substance and in form ; in Huhstanee, as
setting itp a" entirely new contract and iiart
mTformancc in substitution of the former con-
tract : and in form, as shewing the i)laintitl's to
have inicn sntlicicntly itlentitied with the wlxde
transaction to l)e Imund by it, r.s they had taken
the lienetit of it. Ifeld, also, reidieation had.
UtMeMiinl. V. Jl<'i>k-iiis, 1(1 ('. I'. '.'DS.
To an action for breach of contract between
iijaiiitii's and defendant, that defendant would
liiilM plaintitls' railway to he completed l)y a
(lay n:uned, defendant pleaded cijuitably that
the ulaintitt's, with consent of defendant, agreed
with E. to tiniah said railway, and defendant,
liefore breach, abandoned said contract, and E.
t'litered upon and took possession of the works
(111 said railway, and continued the same with
iilaintiffs' consent. Replication, that by the agrec-
Keut in the last plea mentioned, the plaintiH's'
rights against defendant were expressly reserved ;
-Held, on demurrer, replication good, but plea
kl, as not shewing that the alleged substituted
i contract contained all the essentials requisite to
j make it a complete discharge and release of the
nrianal one. I'ort Whilbij and Poi-I Pn-rij It
' ir Co. V. Dmiibk, 3'2 Q. B. .30.
[See the same plaintiti's v. Dumble, L>2C I*. 'M\
{•fliere the Court of Common Pleas, in an action
Iigainst the principal, appear to have taken a
[ditterent view as to the replication. ]
Sec Thompmn v. >)n,Uh, 21 C. P. 1, p. 734.
Vlll. Rescinding and Deteeminknm;.
.\. agrees to pay B. for a lot of land upon
Iteceiving a deed. B. offers a deed, when A.
declares his inability to pay, and projioses new
ienns, which were accepted : — Held, that B.
IM thereby relieved from the necessity of ten-
lering a deed to entitle him to sue A. or rescind
he contract ; that B. wa,s at liberty to rescind
he contract, and might do so by parol ; and
hat an agreement in writing, under the Statute
if Frauds, might be waived, discharged, and
letermined by a subsequent verbal agreement.
V«re, whether before or after the breach of the
•cement. Mulgreto v. Pringk, Dra. 269.
I The defendant alleged that the plaintiff agreed
rth defendant'swife, that defendant, with whom
I had left some notes for collectiou, should keep
|e proceeds for himself and maintain the plain-
1fffi«eof charge for the remainder of his life.
^«ere, whether the plaintiflF could rescind such
agiccmtint, and cur for the iiioiipy enlleeted,
cbliiidanl not being lioiind. //""A v. Ala I, 7
('. I'. »!•!».
(,|Uiere, as to the sulliciency of a plea tn a
written lontniel, that before breaeli it waH re-
Neinded, and a new eontraet Nuli»tituteil, not
alle^'ing the leHei.sNJMn tn have lieeii in writing.
Such a plea was allowed tube pleailcd, but leave
jjiven to plaintill'tci rejdy, take issuiNind demur;
the d(Mnurrer, if any, to lie lirst dctiTininod.
' Wimjiili: V. Till Kiniinkilliii nil f '«., 10 L J. 21«.
I Mcfendant agrei^d with his son that if he
Would remain and \Mirk with him, ho as to assist
in paying for a lot of laml wliieh lie jiad pur-
ehaned, lie should be paiil for his services by the
property lieing ilivided with bini. The son re-
mained, worked iiiion tlu; land for several years,
' and died. After his death, defendant stated
that he "had a eonversation in his family, and
he and his wife agreed to buy the land, keep the
! family together, and, when the land was paid
I for, divide thi^ property aniiuig his sons :- -hfeld,
; that neither this eonversation, nor a sui)se(|uent
i (dler on dcfen.lant's part to ]tay idaintitl', as ail-
ministiatri.'c of the son, !*80() in satisfaction of
; the action, amounted to a repudiation or rescis-
: sum of the only bargain between the father and
j son, which M.as to divide the laml; and that,
therefore, indcliitatus assum|(sit for the son's
[ Work and labour wimhl not lio. MnVlnrhi v.
i Mi:C/iirl!/, !<.» ('. I'. .Sll.
Ilcfendant hircid plaintill to make for him
certain machines and 8n)ierinteiid their use in
his manufactory for live years, unless before ter-
I minated a.s thereinafter provided ; and in ease
! of failure of the plaintitV to perform fully the
agreement, it might be terminated at defendant's
option by written notice, and the plaintifl'
shouhl be responsible to defendant in damages
for such failure ; and in case any dispute shuuhl
arise as to the sufiiciency of the machines, or
jilaintitT's performance of the cagreement, the
same should be referred to three arbitrators
chosen in the manner stated, their decision to be
final. To an action by the plaintiff for wnmgful
dismissal, defendant pleaded termination by him
of the agreement by written notice, because of
the plaintiff's failure to perform it in certain
particulars specified : — Held, that ilefendant
was bound to establish the ground mentioned in
his notice for terminating his agreement. O'rioas
v. Bmiiiijtvii, 27 Q. [{. 520.
Defendant bought from plaintiff a quantity of
oil at four months' credit. Plaintiff' deliveicd
the oil, but defendant refused to accept a four
months' draft for the price, alleging that it was
not according to sample. Plaintiff assented, and
requested defendant to return the oil, which
defendant iiromised, but failed to do within a
reasonable time. Before the four months had ex-
pired plaintiff sued for goods sold and delivered :
— Held, that the original contract had been
rescinded, and that the plaintiff might sue upon a
new contract arising out of the retention of the
oil by defendant. Thompnoii v. Smith, 21 C.
P. 1.
Declaration, for work and materials in con-
struction of a house for defendants. Plea, that
by deed dated Slst July, 1871, plaintiff cove-
nanted to finish the works before 31st October,
1871, under a forfeiture of $20 for every week
the work was left unfinished after that day ; that
m
CONTRACT.
( V,
thu niaintitr diil not I'oinpliitc the workM till '.'U i
weoKM iiftiT Hiiid ilntc, mill thcri'liy !<^(K) liccuiiii!
(lilt! fi'oiii |il;uiitill' to (li'li'iiiliiiit, uliii'li ilt'li'ii-
illllltH nn' willili;; to Kit nil'. Iti'|i|ii';itliiii, i>ll
v(|iiitalili' gi'oiiiiilH, that iiftcr tlii^ lirrach in tiio |
]ilua ullfKuil, thii ilL't'ciidaiitH tnr ^imil luiil Hiilli- !
I'it'lit coiiKiih'ratioii liy jparol ilincli:ir;,'t'«l the
]ilaintitl' from tht^ itoi'lnnii.'iiict^ ni tlir t'oviiiaiit
liiiil ilaiiia>{)'M for thi' lirradi thcrcnf : llrlil,
yood. Silll|l■^n|| V. Ki rr 1 1 III., .'lit </. It. .'145. '
All iiijiiiicti<in I'c'Ntrainiii^' a i'or]iiii',itioii from '
]ic'rniittiiig certain lniililin^H to Itc ciiiiiiiU'tcd
lliidijr a coiitnu't, was* diHxolvcd, it a]pin,'ariii),'
that tlu; contract which h.'xi Ix^cn entered into
iMitwenli the coriioratieii ami the ciiutr.ictor iiad
liciiii cancelliid, ( (ii in'odiictioii of the ccnitiact
ill cfMirt, it appeared that the renciHHi(iii referred
to had lieeii etl'ecteil l»y iMiu'elliiig thesij{iiatiires '
to the docuiiieiit, which being ohjccted to a^< not j
legally diHchargiiig the corporation from lialiility,
the court, as a condition of dissolving tlu^ iiijunc- ;
tion, rci|uired a formal cancellation nf the con-
tract to Ik! made; VanKonghnet, ('., diiliitante
HH to any iiecosHity therefor. 'I' In Kiliiilnirijli l/ij'r '
Ax.^nrnnri' dn. v. Thv Mniiifi/iiililii <;/' //ir Ton'ii
o/St. (.'iil/ifiriiK'n, nn'hy.'AV.f. ' j
The owner of land hy a inemoraiidum in I
writing hoM the tiniher thereon, and when the ',
time vorhally agreed upon for its nniioval was
nearly expired, the vi.'iidor told his vendee tiiat j
he might h.ive anothin' year within which to
complete the cutting and removal of the timlior :
—Held, that the vendor wiw not at lilicrty after-
wards to revoke such extension of time. Lfin
fiiicf V. Errinijton, 21 Chy. '2(il.
IX. Pekfohmance.
Where no time is limited for the doing of an
net, it must he done in a reasonalile time, and a
Hpceial re(|uest should be averred. Dnilji v.
Stevtmon, 5 O. S. 7-37.
Where defendant had agreed to return a
steamer chartered on a certain day in good
rejiair, dangers of the lake accepted, a plea
"that before the day arrived the plaintiti' took
the boat from defendant without liis consent,
and kept her," was held sufficient, though not
in express terms confessing and avoiding the
fact of not returning the boat. Lnniiil v. Mc-
lUu; 1 Q. B. 99.
Declaration charging the tlefendant with thu
non-perfonnance of a certain contract. I'lea,
>that the said contract was not iliily performed
by the said parties, to wit, the plaintiff and
defendant, in manner, &c. ; -Held, batl, in leav-
ing it uncertain by which of the said parties
and in what particular it had not been performed.
Jonen V. Hamilton, 3 Q. B. 170.
Defendants were taken by the plaintiff to a
quantity of timber already ma(le upon the
ffround, and having seen it they contracted to
draw it out and deliver it to the plaintiff on
the bank of a river : — -Held, that the timber cut
in two by defendants to suit their convenience,
without plaintiff's permission, and drawn out to
the river in that altered state, was not a de-
livery within the contract. Rvyiwlds v. Sludtr
et al., 3 Q. B. 377.
Semble, that it is no defence to an action
against the commander of a steamboat for not
■/Wir-
towing, kc, that ho could not {icrform hin,,,
tract by reason of hift tow-bnat \>v'um mii.ivhJ,'!
ably fici/.i n in tht' ice. Ihiilmul v. ll,,ui, . •
i). H. MX
To an action ugaiimt a munieip.il iiiriKirati,,
for not renewing a lejixe imrHuant to tin ir c, ,,!.''
nant itained in it, defeiiilants ]p|e;uli.|| tl,,.
they hail no authority to make the I,.,,,,,
defendant, who was an inhabitant cf tin. tnni,
well knt^w when he took it; and that Im i'i,r,. ,|j
term expired adeeree was obtained agaiii.tt til n,
in('haneery, (pf which defendant liitij ii„ti,,,
before this action, declaring that fin' |qii,| ,.
i|iie'<tiipn was dedieatid for a market >ii|ii;iivi,nlv
and that this leiiNe had been Kr.intnl Mit||,,||l
authority, and should not lie renevvcil ; \\m
on demurrer, no defence. IIVk/c v. '/'/(/ r,,,
ii/iiiii iif Ihr liiii-ii iif Itrinilj'uril, 19 i), Ii, -Jo;
heclaratioii upon the c(pmmon <'iPUMt.-i. TlioiK.
fcndant, after setting out an agreement, Ipywhirli
he was t(p build a mill for jilaintill", a\errii| that
he had built and linishcd the mill a.s lie Ikh] ,.,,!,,
tracti'd todo, and that the plaintifl' was jii,l,.i,t,.,i
to him in the price agreed upon to be iwjd. i,,
reply, the plaintiff merely travcr.ieil tiuit tin
defendant had so built and finished tliu mill
without Mhcwing in M-hat respect lie iiail n,,;
ipcrformcd the contract, and the repliiiitidn Ba,
licM bad. liniii'ii v. Tui/i/nrf, 10 Q. B. Is3.
Ill consideration that the plaintiff' wnulil ij,..
liver to the defendant •2,0(H) bushels nf }x\^^^^
the defendant promised to deliver to liim, «jtt)in i
a reasonable time therefrom, MH) )parrels of tlnur
Held, that the word "thercfruiu" iiui!.t 1*
construed to mean thereafter, and nut that tli.
Hour was to be made from the identionl whtat I
delivered. This being the proper enn,i)tnictiiin |
of the agreement, it was clearly no defcnue tn
plead that the defendant's mill," containiiij; thi
wheat, was burnt down without any iiegligmict I
on his part ; though he would have betn t.xcuseil
in that case if the other construction of tiic
agreement could have been adopted. Till v
Siln-rlhiiyiii', 11 Q. B. 619.
A promise to deliver a conveyance ini'linles j
priunise to execute it. Whitf'nr v. ilcLivmr.
13 Q. B. (i.38.
By deed of the 18th of .lune, 1847, defeiirlaiit
agreed to sell to plaintiff the net iiriitit.s furl* i
years from the date of the agrociiieiit (nit "fur-
tain shares in mining company for I'.ST'i. (inttc
•Joth of November, 1847, the coinpaiiy sdldaiii
assigned to the Montreal Mining ( 'iPiniiaiiyait.Ti
tracts of land therein described, ami all Ii*!-,
engines, &c., for f33,2r)0, to which salf ild«i-
dant assented : — Hehl, that the defeiulaiit luviiij'
disposed of his stock, which represt'iitnl liij
interest in the mines, before the time at wliicli
he was to sell the profits to the plaintitf, ho bi
placed it out of his power to fulfil his agreement.
and so broke his contract ; and the jilaintif
became immediately entitled to sue lor tke
breach tliereof, upon the ground th.it the *n
tract was at an end, and that the consiileration
had failed. Sanders v. Bahij, 5 C. P. 441.
The first count alleged that the defendini
agreed under seal with the plaintiff to eiliti
magazine owned by her, oh certain terms sped-
liea, but that he refused to continue as sicli
editor, whereby she was forced to discontime
the publication. Defendant pleaded that Wore
rM
(,'ONTRACT.
786
,11V liri'iwh iif liiHnKr'''''""'"' tlu' iilaintitl, limlinu
till' iiiiiK'iziiK! 'litl ii'it |iiiy, ctaMr.l to imbliHli
It hIii'mIi.V Ik' whm pivvfiitiicl trniii iii'tiiii,' itH
ciiitiir, altliiiiiKl' '"' ^*'"' ''"'''''y '" ''" "" '■ Ifi-'l'li
.■liarlv H K ' 'li-'*-''"'''' t^liiixi-i V. Iliiiil, •JM^.
ll.'l.'il''.
WlicTi' II I'iii't.V, iH'fiiff till' tiiiK' Mti|iilliiti:il fur
luiimiiiiiiK I''" <-'"ii'ii"-'t. <l<-'''lii>'i'« tlmt 111' will
lilt iicifiiiiii it, till! (itliiT party may tii'at tliiM
IhcikIi iili'l «>H-'. hiilliii V. I'liijliir, .'it
I'.'.
iiiii
till' him, ainl Iwul in writing
liis iutirt'st ill tlio iii'iii'ec'ils :
l)i'ilarati"ii, that the iilaiiitilf a^jrcud to ntll
ami (li'tViiilaiit tn Imy ci'i'taiii land in Osiiawa,
iiilidiniiig till' laiuU (iC tlii^ plaiiitill', \vhii.li
wMiilil ht^' tliiTi'liy L'lihaiifud ill valiii-' tu thi'
iil;iilitill'. fi'l' Si'H-''. UlMill tlio fiillnwiiig ti'llliH;
tlie iiKiiii'V tu ill' l>aiil mill the L'oiivi'yaiii-'L'.s I'xt'-
tiiti'il ciii'iliinaiul, anil that ili'l'i'iiilaiii shniilil
within I'ijjlitiiii iiHUitliH put up a taitmy tiii'ii'im,
III till' ili""^'"'*'""''' wi'ci'iiit'il, ami I'.irry mi thi'i'o
till' iiiiiiiiil'aitiii'i' of platfil wart' ; ami that in
,:i«' lit' sliiiiilil nut ilip this hi' wuulil at tliu i'Xi>i-
niliiiii III' Hiiiil L'iylitufii iiiiiiitlin I'L'Ouiivey the laiiil
and ri'i't'ivi' liai'k the piirt'liaMe iiiiuii'y ; ami all
tilings liiipiii'iiL'il anil all tiiiies L'la((Meil, ito., ami
iilaiiititt waH luaily to t'onvey, yet ilefemlant iliil
iiiit pay tl.L' iilaintitl', nor euiiiplute the imrelia«e,
iiut iiiititit-il thi^ plaintiir that he aliamluneil ami
wiiulil uiit perfurni the ayreeineiit, ito. I'lea, on
ci|iiital)li! gniuiiilH. that ^lefemlant iiiailo the
aiia'i'iiieiit mi hehali' iif hiniHulf ami nthei's, wliii
were aliiiut tu a.sHueiate thoniHelves as a euiii-
hjiiv to inaiiul'aetnre pli'^ed ware on the .said
iit.'iuul witii the 11 )ii of pl'ucuriiig .said
liml aa a site fur their faetury in l'a^■e tin; euiii-
i.iuyahiiiil ' 'eeide to erect it thereun ; that the
iilaintirt kii. .. this w hen he nunle the agreement ;
;iiiil lii'fore any deiiiaml liy the jilaintirt' fur pay-
iiHiit, anil liefiire any eonveyanee uf said land,
ilcteiiilant ami the others decided not to carry
(ill saiil imsiuess, uiid gave notice thereof to
the iilaiiitill' and that tliey would not reijuire
sill lanil, and that the iilaintitl' was released ;
ami ilefi'iiilaiit did nut uthorwise abandon said
.U'rti'nii'iit : Mild, fulluwiiig Huehster r. De La
fiiiii', i K. & U. I)7S, that the declaration was
giiiiil, ami the jdea no answer to it. //(.
Ueclaratidii on a oontriiet liy testator to build
a iiiarini' Imiler and steam engine for pliiintill',
alleging partial ciinipletion by testator before
liiii ileath, and a promise by defendants as
executors to euniplete it for the balance due,
liiit that they ilid not complete it in time, and
ilehvei'fil it untinislieil, and not according to the
speeilicationa, &c. Defendants pleaded, Srdly,
that tcatatiir, and defendants since his death,
iiiaile all the variations from the plans ami
eruitraets in the declaration mentioned by the
leave ami license of plaintiff and his agent : —
S llelil, bail, .among other reasons, because leave
ami license cannot bo pleaded to a breach of
cnntrat't. Fifth plea, as to so much of the
ileelaratinn referring to alleged imperfections
s fif material ami workmanship, that after the
' iwurrencc thereof, and before suit, said boiler
and engine were taken by plaiutitF from defeii-
ilaiits, as e.\ecutor8, whereby, and by force of
I the contract set out in the (leclaratiou, ilefeu-
ilants ceased to be liable to damages in respect
of the causos of action to which the plea was
> pleaded ;— Held, good. Leonard v. Km-theii H
<2-2C. P. 11.
47
XI. .'\(TI<>NX .\NI) I'KOI KRKINUS ON CoNrRACTS.
I. I'n)llrl>.
(a) I'rU'Uji ofContniil.
A. cuntriutid with dcfi'iidantH tu jicrform
work, and H. execiiti'd a bond as his suri'ty. It
appiart'd that It. was in fact the piiiuipal, and
dill the wui'k, and that A. had tt'iidi'icd and
taken the cunti'iut
assigned tu him all
Held, that U. I'liiild have no right uf action
against defeiidaiits. FirrU v. 77"' Miiiiiri))Hlil^
tij' llir Tinriixliiii 1,1' Kiiiijtl'in, \i (I. H. 4U(i.
A contractor with a curporation to supply
hydrants t certain puiiits with water for public
use, in till- event t\i lires, is nut liable fur dam-
ages occasiuned tu the pru]ierty uf an individual
rate payer uf the city by tire, owing to there not
being a siitlieient supply uf water : there being
111) sullicieiit privity betv^ceii such ratepayer
and the euiitiai'tur. ('iinminilitiiii v. Filming, 4
('. r. .-)i4.
A. agri'i'H to become surety to IV fur all such
advances a.s M. may make tu ('. iliiring a limited
jicriud. IS. makes no I'ldividual advances to ( !,
at all, but during the periou, u with n.,astranger
to A., make advinu'es to i , -Held, that B.,
imlividually, could not receiver from A. the
amount of the advances .so made. Stci'tniton v.
McLean, 11 ('. I'. -'08
One T. contracted .. ich defeiidaiit; , a corpor-
ation, to construit certain wr k lor them, and
on the same ila,\ the plaintiil ;■ .'end with T. to
do a jiortion of it for ${^'\ f'liject to the same
conditions which bouii I T. in his cimtract with
defendants. 'P. on the same dav by letter au-
thorized defendants tu pay the plaintiff for his
work to the amount of T. 's contract with .'im,
and defendants in anHv.er agreed to this. De-
fendants paid the pliuntitf all Imt. 20 per cent, as
the Work progressed, but their manager refused
to certify as the contract reijuired, complaining
that it was improperly performed. He, however,
had verbally agreed tu pay the plai'itif1"'s men
.*!I00 if they Would discharge the company : —
lleld, that the plaintiff hailno right of action
against defendants, for there was no contract
between them. Stnudiwi v. London (liin Co.,
21 Q. B. 209.
Plaintiff sued defendants, as churchwardens,
fur his stipend as the incumbent or minister of a
church. It appeared that several resolutions
were adopted in vestry as to the salaiy of the
clergyman, but only one subsequent to defen-
dant's acceptance of office, which related to an
old balance : — Held, that as plaintiff's claim
rested on a voluntary undertaking of the vestry,
not founded upon a consideration moving from
plaintiff or upon any executed consideration of
services rendered, and the evidence shewed no
contract between plaintiff' and defendants founded
upon a consideration between them, defendants
were entitled to judgment. Carry v. Wallace et
al., 12 C. P. 372.
Plaintiff L.j'ought ejectment against D., and
hearing that D. was alx)ut to remove a barn
upon the lot in dispute to other land which he
had leased from defendant, he went to defen-
dant and told him that it was his. D. afterwards
took the barn there, though defendant forbade
him ; and the plaintiff then sued defendant for
ilT"*^!^WP»
739
CONTRACT.
nil
:' f : il
it as for. goods sold and delivered : — Held, that
even assuming the barn to be a chattel, he could
not recover, for there was no contract or privity
between them. Hest v. Boirp, 22 Q. B. 439.
Defendant hafl contracted to supply the Buffalo
and Lake Huron R. W. Co. with wood. In
1858, by instrument under seal between them,
in consideration of •'''.'.'2,000, defendant released
the company from the contract, and the com-
pany covenanted to indenuiify defendant against
all contracts made by him with one M., among
which was a contract to convey to M. two lota
of laud ; one in South Easthope, which had
beun leased by plaintifl's to defendant, tlie other
in Zorra, which had been leased by the plaintiti's
to one J., who had assigned it to M. In 1865
defendant wrote to the company stating tliat
the plaintiffs had claimed from him rent in
arrear on these two lots amounting to .^2,000,
and offering, if the company would pay him that
sum, and re-convey the leases, to assume them
for the future. The company assented, paid him
the $2,000, transfered to liim liia leases which he
had transferred to tliem, and took a receipt under
seal from defendant as in full of all claims for
such leases, by which receipt defendant dis-
charged the company of all further liability in
respect of such leases under the indenture of
1858. The company had previously paid the
rent of both these lots, and defendant after
'receiving this money paid the rent on the South
Easthope lot. The plaintiffs having recovered
from defendants as for money received to their
use : — Held, that the verdict was wrong, for
though the settlement was made on the ba.sis of
the amount due to them on the leases, yet it was
paid to defendant not as the plaintiffs' money,
but as the price of the railway company's dis-
charge, and there was no privity between plain-
tiffs and defendant. Thf Camuhi Comjxiiii/ v.
McDonald, 25 Q. B. 384.
Defendant being the treasurer of a turf club,
by which horse races were conducted, received
subscriptions from members and others to form
a fund out of which the purses run for were to
be paid. The plaintiff entered horses and won
purses, but defendant refused to pay, alleging
tl'nt the club was indebted to him for advances
whith he had previously made : — Held, that the
plaintiff could not sue ilefendant for money had
and received, there being no privity between
them, and defendant being accountable only to
the club. SimmH v. D, : ison, 28 Q. B. 323.
S. having mortgaged certain land to F. agreed
to sell it tu the plaintiff', and went to the ofKce
of defendant, who acted as agent for F., where
S. executed a bond to convey to the plaintiff on
payment of .t'20O down and the lialance by in-
stalments, and at the reijuust of S. the plaintiff'
paid this £200 to defendant for F. on account of
the mortgage. Afterwards, at tlieir joint re-
quest, defendant returned i'oO to the ^jlaintiff,
and S. ha ving released to F. his equity of re-
demption, the plaintiff' sued defendant to recover
back the ,£150 remaining, as money paid to his
use. Some evidence was given at the trial to
shew that the title was defective : — Heltl, that
the plaintiff clearly could not recover, for the
money was not paid to defendant on any contract
between him and the plaintiff, but wtva a pay-
ment by 8. of his debt due to F. Semble, that
the evidence, set out iu the case, was not sufficient
to sliew a failure of title, but that if it iiail 1^,,
F., under the circumstances, could at iiidst havl
been liable only, on receiving payment nf W
mortgage, to convey to the plaintiff .sucli title a
he had derived from S. Brnniqun v. ( 'mimiih
23 Q. B. 204. ■ '
Held, that where there was an expiess ajn-p.
ment between the owner of certain logs mni ji
plaintiff, that he would sell the log.s suljiuctu
plaintiff' 's charges tliereon for ratting, wi,,.
agreement was comnumicated to dcfondiuits tt,'
purchasers, whopnmiised theplaiutill', liufdiL.ti,'
delivery by him to them of the wliolu df thelnfl
to pay said charges, the plaintiff \\as entitfei
to maintain an action against defeiiduiits for iiim.
payment of the same. Jarkium v. Eriiiiii-in'
21 C. V. 33.
The owner of several steamers, can-yini. „i
business as a forwarder, sold one of them to m.
othtSr forwarding firm, and upon tliu siile cdw
uanted that he would not directly or iudircctli I
have any interest in any vessel navigating td
St. Lawrence oelow Ogdonslnu-gli at aiiv tin,
thereafter: and also that he would not (iisijuj,]
of two other steamers then owutd by him toaavl
person or persons for the purpose of iiavi'-atiiij 1
the St. Lawrence below Ogdensbui'gii. r^Hnii]
bill filed for that purpose, tlie court liuM tin
owners bound by the covenant uiiteix.il into In
the original proprietors, and granted an injunotiii
restraining them froTn navigating tlio river iielm j
Ogdensburgh with those vessels. Ihilcoid v f
Xi.r,„i, 5 CTiy. 278, 373.
• (b) Otlii'r Citsi-.^.
A. being indebted to B., and ('. to A., B, audi
C, without the assent or knowledge of A., ai!r«l
tliat (J. shall pay to B. the debt due to liim livf
A., on condition tliat B. shall diaeliarge A. finiiil
his debt : — Held, tliat such agreement is liindiiu
till' Its llllll.
on v., and that B. may sue him
performance. Ti/rilt v. A mils, I ()
A. contracts by deed witli B. to soil liim
certain timber off his lot, to l)e paid for by 1),
at certain fixed times. B. being iu default,
A., supposing C. to have a joint interest in tlie
timber with B., sues B. and ('. on an iuipliwl
assumpsit : — Held, that thougli A. might sue B.
alone on an implied assumpsit, yet that, Iwjj
concluded by the deed as to tlie [lartics liaHe
on the contract, he could not sue B. aiiilt',
jointly. AruiKtriDUi v. Aitdernvii i-t nl., H).
B. 113.
Debt does not lie by tlie grantee ef a rait-
charge to issue out of lands, where there is no
express covenant to pay. Domidll v. 7'«™W/,
lOy. B. 121.
The plaintiff having sued one of tHo joint
contractors, the other being out of the juri*!*.'-
tion, and having recovered judgnient agaiist
him, cannot afterwards sue tlie other. Ihrn
el III. V. Diimi, 18 Q. B. 352.
Declaration by A., B., and (!., plaintiffs. First
count, that A. and B. agreed to perfiini: eertiin
work on a railway for defendant, ami lia^in)!
associated C. with them as a co-partner win-
menced the same : that defendant bcccuue Jes-
roua of discontinuing and suspending said m
and it was then agreed between iilaiiitiffs «
defendant iu writuig that it should be siwptnM
"^^'^m,
no
it iiail lietn,
at most havt
i'luuut (if h;i
'such title ai
. V(niurii}i,i,
ixprcas ap,
I logsaiuttl,
ij,'.s subjwtt
iftiiig, Willi
jfunilaiits, til,
till', bei'dix'tlit
>li; I if the Ida
NN-as eiititW
iilauts for 11(111-
. Eritun rl 11,'.,
i, carrying oi j
)f them to at
the sale covf
y or iiidirwilt
navigating it't
;h at any time I
iiM IK it (hsiKistl
I ity him tdam !
I of iiavigiitiiij I
iirgh. rjidii i I
jourt held the 1
iiitered intd liy '
edaiiinjmirtidii
the river litlditj
la. HiilciJiiili V, f
'. t(i A., B. Mil
(Igedf A.,ai,Tn|
(lue t(i liini liyl
[Soharge A. frmnl
iiieiit isliimliiij
iii> for iUi 11(111' I
(i. B. 'M
15. t(i sell him
paid for In 1).
iug ill default,
interest in tiie
. (in an inijilinl !
A. might sue 11
yet that, Iwiii;
e parties lial'lc
sue B. aiulr.
VII ft ii/., 4 (|.
liiitce (if !i Mit-
lere there is ii«
\uU V. TimM\[
|e of two joint I
,if the jurisilK'-
llgiiient .ngaiat
other. W(i'-« !
Iplaiiitiffs. Fint
Iperforin itruni
Int, ami havmj
lo-partiier (* j
It heciiuie lea- '
lliug said »A I
li plaintiffs d
IbesuspenM ]
■41
CONTRACT.
742
,in(l at the option of defendant entirely iibiin-
doiied, and if abandoiie<l that the plaintiffs should
receive from defendant another contract on a
snhstitnteil line eiiually advautagccus to them,
.indif the work should Be resumed the ]ilaintilfs
sh(inld repay defendant a »])ccitied sum. The
second count alleged an agreement with all the
iilainliflfs to ilo the work, and charged that de-
fendant refused to allow them to go on with it :
-Held, that the second count was good, and
that there was clearly no misjoinder, both lieing
on agreements with all the plaintiffs, (lonlil ft
ol. \. dzoird-l, 17 Q. B. r,2.
The second count of the declaration alleged
th.t the plaintiff was seised for his life of certain
land, anil one H. owned the reversion ; and that
hv an agreement Between them and the Buffalo,
HiMntford, and (todorich Railway t'o., they
granted to tlie said company the two first ridges
(if gravel next tlie lake ; and the company
thereby agreed to leave the ground two and a
halt feet in depth above tlie level of the lake,
and the surface even and level ; that afterwards,
and after the passing of the act lit Vict. c. 21,
the said company, under that act, delivered over
their railway to defendants, and defend^ints com-
rleted the same uiuler the agreement set forth
m the statute ; that defendants chose to enforce
the said agreement with the plaintiH's, and
removed the gravel, but dug pits Bolow the
stiiral'.ted deptli, thereby injuring the land. 1{.
hnnight a separate action .-..s reversioner for the
i-iiiie injury. The agreement, when produced,
r .ipiicarcd to be with both jthaintiffs jointly:--
Held, that the plaintiff could not recover, for
defendants were not bound by the agreement ;
ami, besides, it being entered into with the
plaintiffs jointly, they could not maintain sep-
; arate actions. Prw v. Buffalo <(• L. Huron H.
I ir. (V, 17 y. B. 282.
in an action for work and labour against the
Rem'iitnrsof Z., it appeared that the work was
(lone under two sealed iMintraets, entered into
Eoriginally hy Z. with one R. who had sublet one
icf these contracts to the plaintiff and 1>. The
Iplaintiff had, hy aubseijuent agreement with M.
|»n(l I)., respectively, acijuired the sole interest
iin each of these contracts ; but .after he had done
ISO, (in each contract between B. and his sub-con -
Itractnrs an agreement under seal was endorsed,
jby which B. assigned all his interest in these con-
■aets respectively to Z. ; and the sub-contractors
|thc plaintiff and M, in the one case, and the
piiitiif and D. in the other) agreed to accept Z.
Jn place of B., and Z. agreed to assume the con-
|lrai'ts, as if originally made by him with the
Sli-oontractors. The agreement endorsed on
he contract between B. and the plaintiff and D.
fc^ not executed by D. : -Held, that the plain-
litf could not recover alone, the liability being
•o himself jointly with A. and !>. respectively on
he respective contracts. Ziitmcrmaii v. Wooil-
ppt "I., 17 Q. B. .'584.
Two of the plaintiffs contractml under seal to
|o certain work, which was done by them,
Jut not according to the agreement. The three
^vmg sued were nonsuited on production of
Be contract. The nonsuit was upheld, and an
Miidnient hy striking out the name of the
fiirtl plaintiff, in order to save the Statute of
"lutations, was rcf-sed. Bridvr et al v. A ncfll,
J lr„": *81. See also Ross el al v. Tait, H.
2. Pkadhuj.
(a) VeHainty (iiiil Particiilarity.
In an ivction for the non-delivery of wood
according to contract, the declaration was held
b.ad on speci.al demurrer, for not stating the
price to be paid, nor that the wood Wivs to be
paid for either on delivery or on a cert.iin day,
nor tiiat the plaintiH" w.as re.ady .and willing to
pay for it. Mmliloi-k v. Stock, 4 Q. B. 118.
Where defenilant is sued upon a promise to
continue a former agreement then .about expiring,
the declaration .shinild state the precise terms of
the former agreement, and .aver that such terms
composed the whole of it. Uarnvit v. McKay,
.5 Q. B. 246.
The plaintiff charged defeiuLants upon a spe-
cial agreement st.ated to have Buen made By them
as trustees, to furnish with fuel when required
the plaintiff, a school te.acher, under the Act 9,
\'ict. c. 2!). Declaration held Bad, Because no
reipiest with time and place h.ad Been alleged to
furnish fuel. Amli'i-Kon v. V(tnniUart et al., 5 Q.
B. .335.
I'poii an .agreement to deliver wheat ,/'"'■ the
plaintiff at the mill of a third party, n<aming him,
the pl.aintiff averred " that he w.as .always will-
ing to accept the wheat at the place aforesaid,
whereof defendant had notice ;" — Hehl, on mo-
tion in arrest of judgment, decl.aration good.
Wrhjlit V. HV«/, () Q. B. 140.
An uncertainty in the statement of a part of
the eonsider.ation for the defendant's promise,
with respect to a part only of the plaintiff's
demand, does not make the declaration Bad on.
gener.al demurrer. Bradford et al. v. O'Brien,
6 Q. B. 417.
In dcBt for goods found .and provided for one M.
at defend.ant'a request, not alleging by plaintiff :
— Held, declaration sufficient, on motion to arrest
judgment. Kriidrick v. Maj-iirll, 7 Q. B. 94.
All averment that in eonsider.ation that the
plaintiff', at the defendant's request, "would
agree" not to put the said A. B. to costs in
respect of his debt, the defendiint promised, &c.,
is a sufficient allegation of plaintiff's promise.
Xoad v. Broini, 8 Q. B. 154.
Spcciiil assumpsit for not accepting a schooner,
the consideration Being th.at the plaintiff would
sell defendant the schooner, "together with
all and singular the apparel, tackle and fur-
niture. Boats, oars and appurteii.ances to the
said schooner Belonging or appertaining, and
convey ami .assure the same to the defendant By
a good and sufficient deed of conveyance or Bill
of sale, free from all encuniBrances. " Upon
special demurrer the declaration was — Held Bad,
for not alleging that the conveyance tendered
embraced the "apparel, tackle and furniture,"
and Because it w.as not inconsistent with all the
avennents tluat the "apparel, tackle and furni-
ture" might not Be free from incumBrances.
PhillipH V. Merritf, 2 C. P. 299.
Quaire, whether when a contract is to pay at
a particular place named in a declaration, the
general averment that the defendant did not pay
18 not sufficient, and any statement as to the
plaintiff not being at the place named to receive
the money, or that the defendant was there
ready to pay it, must not arise by way of defence.
Beclicr I't n'l. v. (^irjioration of the Town of A in-
herstbunjh, 23 0. P. 002.
•n
I:
i 1
j
■' ' ('ira'
TT'W^
743
CONTRACTOR.
Ui
^ r
m
h ' ■
■'THH
i^^
I .£iU
ht'
Where no time is limited for the doing of an
act, it must be done in a reasonable time, and a
special request must l)e averred, but the state-
ment of a general reijuest will l)e sutiicient after
verdict. Bail;/ v. Shren-^uii I'f al., 5 O. S. 737.
Assumpsit against a miller for not delivering
flour ground by him from wheat sent to him by
plaintiff, on an agreement that he would grind
and deliver the flour at one of two prices named,
depending upon whether the barrels were fur-
nished by him or the plaintiff: — Hehl, 1. That
it was unnecessary to aver that there wa.- any
mark to distinguish the plaintift"8 wheat, as
required by .31 (tco. 111. c. 7, s. 3; 2. That
readiness to pay eithei- t)ne price or the otlier,
and notice to the defendant or a tender of pay-
ment must be averred, but that the former w.as
sufficient. The agreement as set out in the
third count, was to grind 10,000 bushels of
wheat, alleged to have been deliveretl l>y the
plaintiff. In the 4th count, it was averred
that under the said agreement set out in the
third count, the plaintiff delivered 10,(H)0 other
bushels : — Held, bad. Coitiilcr v. i/oin •<, (i 0. S. .37.
The plaintiff declared in .assumpsit on an
iigreement with defendant to make 100,000
bricks, and then averred that he had made
68,000 of them, and prepared in part .'10,000
more, but that defendant would not allow him
to complete them, but absolutely dist;liarged,
hindered ami prevented him from doing so.
Defendant ple.aded, 1. That the plaintiff entered
upondefendant'sclose to complete the work there,
and that defendant i)revented him, as he law-
fully might, which was the same hindering aiid
preventing ; and, 2. That the plaintiff was mak-
ing the said bricks upon plaintiff 's close, and
hatl made 68,000 of them in so bad ami unskilful
a manner that they were wholly useless, and
was proceeding to make the rest in tlie same
way, and that therefore defendant did then
forbid and prevent him from making the
residue. : — Held, that both pleas were bad,
because pleaded to the whole declaration and
not answering the discharge, and th.at a repli-
cation of leave and license to the first plea was
good. ToU'iimn v. Crew, 2 (}. B. 186.
Assumpsit on a contract to make and furnish
a steam-engine and boiler. Breach, tliat the
boiler furnished w;vs not made of good and
suflicient materials, and was not retisonably tit
and proper for the said engine. Plea, that the
said boiler wjis made of good and sufKcient
materials; — Held, bad, as not answeriug the
whole breach. Ahel v. Leonard, 12 Q. B. 192.
CONTRACTOR.
I. D18QUALIF10AT10N OF AS Member of Muni-
cipal Councils — See Municipal Corporations.
II. Liability of Railway Companies for
ACTS of — See Railways and Railway
Companies.
III. Right of Remuneration— .Sffc Work and
Labour.
A railway company is not responsible for
damages occasioned by the negligence of sub-
contractors in making the road, wIumc sn.'
damage was occasioned by said sub cuntraot, ■
doing acts which they were not riMuiivcl 1,"
tlieir contract to do. Wuoil/illl. y, 'J'h,/i--'
We.i>ern 11. W. Co., 4 V. V. 441).
Defendant liaving been employi'd l,y ., |.,.j
company to furnish them with stuiu's liviilara
them on the road, accidentally causuil tliu di ••'
of tlic plaintiff's servant and hm-si.. O],!
application for a nonsuit it was lioM ti,;,, ,'"
defendant was personally liable for tliu dainr-
done, under 1(5 Vict. c. 190, s. 49, 1 niiun''
/la, /•««», 7 C. r. 496.
To sustain an action against tlic ciuplovcr i.t
danuiges occasioned in the ])erformain,'(' dfaoi'ii.
tract it must be shewn that the toiitrattdiistK
authorized agent of the ])artics smu'lit t„
charged, or at all events tliat tlicv sulistciiiont.v i
ratitied or iidopted the work as tliuir dwn,
this ctse the defendants were lield imt lialili- .,, 1
i damage done l)y tiro in clearing u]i an allnwanJ
for road. dirroU v. Tin t'lirjinrati,,,! „;'/';,„ I
ton, 9 C. V. 345.
One M. agreed to burn and clear iitVtliotiiii«i
on defendant's fallow at a certain pniuiier iirrtl
Wliile the work was in progress tlic ileleiiiUj
who lived 011 the place, canif oooasioiiallv i
sec how it was getting on, and advised liiiii t,,i
set tire to the log heaps. M. told clciVndant thsj
a brush fence, wliich extended tn tlio loiiur.!
])laiiitiH"s land, might take liiv, Imt dttViiil
said it w(mld make no diflerciut'. M. tlioniirs
the lieap.s, and went home two or tliRv mik
oft', intending to return in a few days, wlitn tiJ
heaps shoultt be ready for liraudiiij;. l)iir:d
liis absence tlie tire spread to the ]ilaintitl'slaiij
and liurned his fences, &c. The jiiiv Iuve
found for the plaintift' on tlie ihaive Ht iiti.^1
geiicc : -Held, that M. upon the ovideike irj
not an independent contractor, over wlidm .ifj
feudant had no control, but ratlier a w.irkDu
ill his employment anil subject to liis dirivtidii; j
an<l that defendant was rcspniisil)k'. (,iii,nv,|
per Wilson, J., whether if M. liad Iwcii «lil
contractor the defendant wouhl havoliwiilaUtl
Johndon v. lIuMle, 30 Q. B. 232.
The plaintiff owned land in X(itt.iwisjj,l
through which the defendants constnuti'l tifirl
railway. Portions of the work of coiistnii;: aj
including the cutting, grubbim; ami okMriiii;tii^
track of trees, (fee, to be done to tiie satisMi
of the defendants' engineer, wore let tn M.tH.
who sub-let it to other i)arties. 'I'iio t'liiaiwr,!
who had power to urge on tlio wnrk, fmt t
control over the men, directed tlio wcrtaJ
servants of the sub-contractor, to hurry 1 11. iBij
told them to burn the brush ami tinilit'r in !'
centre of the track, not on either side. Tlidirl
was lit in July, and spread intu tlie \\xM'i
land. In October, the tire liavinj; siiMllfi'^
meanwhile, as the plaintiff alleged. It if
afresh, and did the grtfvter part nl tlu' hue
—Held, that the contractin-s, ndttliediffiiluti
were primfl facie respoiisiljle ior the iiijnij. 1
cau.sed by iieKligeuce on the part of tins f""
set out the hre ; and that the eviilemv.ii
fully set out in the report, did not shew sJtij
interference by the engineer as «ouU w
defendiuits liable. GUhon v. Xm-tliilMi^
Co., 33 Q. B. 128, aflirmed iu iipi)eal, BliUi
C, diss., 34 Q. B. 475.
A,. I
745
CONVERSION OF REALTY BY STATUTE.
746
The plivintifl' wjvs in tliu unipldyincnt of (Uic
(' a contnictor with the tlcfendauts for huililing
fences along their line. (".,asiv matter of con-
venience to him, was permitted Ity ilofemlants
to carry his tools on their trains, and was thns
takiuL' t"" crow bars from I'ort Hope to a point
(in the line where his men were at work. As the
train liMseil the spot < '■. dro])ped one har ont,
•»n<l the li.vgil-'igo nivster pitched out the other,
which struck and injure. I the jdaintilf. ('.
swore that it was his business to put the bars on
and take them oH' the ear, the baggage mivn
having nothing to do with him. nor any right
til meiMle with his tools, n<ir did he ask him
to put the bar out : — Hohl, that defendants were
not resiiousible for the injury, for tlie baggage
man was not acting as their servant or in jinr-
sumce of his employment. CiniiiiiKjInim v. T/if
Gmul Tnnd- H. W. Co., .31 Q. H. .S.W.
The defendants agreed, with a contractor for
the construction of their railway, to furnish a
i-onstniction train to be used in earryhig mate-
rials for ball.v.sting and laying the track of a
iiortion of their road, then under process of
coustniction ; the <lefendants to provide the
conductor, engineer, and fireman ; the contrac-
tor furnishing the brakesmen. On tiie SIst of
dctolier, 1S7-, after work was over for the day,
,ind the train was returning to t)wcn Sound,
where the plaintitT, one of the contractor's
workmen lived, the jilfvintitl", with the permis-
sion of the conductor, Imt withcnit the authority
of the defendants, got «m the tr.ain. Through
the negligence of tne person in charge of the
train, an accident happened, and the plaintiff'
w.is injured : — Held, that the defendants were
not halde, f<ir their contract was to carry mate-
rials I y, not passengers, and tlid conductor in
jiermitting the plaintitl' to get upon the train,
was not acting as defendants' agent. (Iruham
V. TimmUu dreii ,i' Bnii-c J{. !»'. Co., '23C. V. 54).
See, also, Sln'cniinii v. Torontu, Grcii <0 Bruce R.
ir. Co., 34 Q. B. 451.
1852 fJ. executed a mortgage covering both lots
to ('., which wius immediately registered, but
the Christian name of the gr.antor's wife (who
executed to bar dower) ditl not appear in the
memorial. Fn 1853, (J. gave a mortgage of black-
acre to 1*., who immediately registered his con-
veyance. In 1855 (i. sold the remaining half of
whiteacre to M., and in the following year B.
conveyed his interest in the other half to IS. In
18(il C". Rohl black.acre un<ler a power of sale in
his mortgage, and the sale realized fully what
was due tdiereon. In ISti'J P. tiled his bill
against M. and S. in order that he might be
subrogated to the rights of V. iis against white-
acre for the amount due him on his security. >S.
and H. had previously paid all their purchase
money : -- Held, that I', was not entitled to any
relief against S., but that if ('. 's mortgage was
duly registered, P. was entitled to contribution
against -M. Baurliir v. Smith, \) Chy. 347.
Where costs were incurred by a tenant in
common suing on behalf of himself and his co-
tenants in restraining the committing of waste
on the joint property by a stranger, it was —
Hehl, that on its being shewn that the suit was
necessary and proper, and that it resulted in
benetit to the co-owners, they should share the
expense in iiroportion to the lulvantage they had
derived from the suit, ilaji- v. Mulholldni/, IG
C,"hy. 145.
CONTRIBUTION.
1. Bv 8i'RFriK.s— .Vir Bills ok Kxchashe .\N'i)
Promis.soky Notes — Pui.Nrir.vL and
Surety.
One of several defendants in assumpsit who
has paid the whole amount of the damages
under , an cxecutiim, is entitled to recover contri-
bution from the other defendants ; and in an
action for such contribution, the regularity of
the judgment in the original action cannot be
i|uesti(med ; and it is not necessary tt) shew any
notice of execution, nor demand of the money,
Iwfore action brought. Woodruff' \. Glaisford,
4 0. S. 1,V).
When an award directs two parties to pay
each a certain sum of money to a builder, and
one is obliged to pay the whole from a refusal by
the other to pay his share, the party so paying
can compel contribution by suing the other in
covenant for non-perforuiaiice of the award.
AUn V. Coy, 7 Q. B. 419.
In 1849 (t., being the owner of whiteacre and
hlackaore, contracted to sell half of the former
to B. by a bond, which was never registered. In
CONTKI BU TOR Y N KC LI( JKNCK.
Sie Neolrjenie.
CONT RO V K RTE I ) K LECTIONS.
I. MrsK'irAL Elections — See Muxicu'al
Corporations.
II. Parliamestarv Elections— ,Vef Parlia-
ment.
CONVERSION.
I. Of Healty—.Vw Conver.sio\ of Realty
BV St.\,tute.
II. Of Goods— .Vc Trover.
CONVERSION OF REALTY BY STATUTE.
One of several heirs of an intestate being luna-
tic, an act was procured authorizing the sale of
the intestate's lands, and the investment of the
lunatic's share, for the benefit of the lunatic
"and his representatives." The lunatic after-
wards died, and it was Held, that this shiu'e, for
the purposes of distribution, retained the eliar-
acter of realty, and was to lie divided between
his real representatives and not his next of kin.
Ciimphell y. CninpMl, 19 Chy. 254.
The principle of see. 56 of C S. U. C, c. 12,
relating to the conversion of infant's estates
sold under that act, is also applicable to all cases
where it is necessary for collateral pur]K)ses to
effect the conversion of an infant's estate from
realty into personalty ; the rule of the court in
|. !:
V ' ^'i'
iii
CORONER.
m
all such cases Iwing that the conversion shall
not have any greater effect tlian is necessary for
aeeoniplishiug the immediate purpose of the
c(mversion, so far jis the rights of the next of
kin and heirs-at-law of the infant are concerned.
Fitziiiilrirk v. Fifz/mliirl-, (i I'. 1{. 134. —Chy.
Cliamb. — Holmested, h'lfiriv.
CONVEYANCE.
See Dekh.
I.
II.
III.
IV.
V.
(JOXVICTION.
Of Fki.ons — Sit Attain DEK -CitiMiNAL I
Law. I
By Maui.stratks— .SVc Ji.stuks ov thk j
I'f.ack.
AlM'KAL TO (iENKHAI, OK QfAUTKU SES-
SIONS — Sec Sessions.
Removal of— .Vc Cektiohaki.
Actions auaixst Macji.stuates fok not
HETi'KNiNtJ — See Jv.stices of the
I'eai'E.
by-law. Such a conviction must shew liv whit
municipality the by-law was pas-sed : \)n;^.j.
whether it is essential to state the title ,]f [u.'
of the by-law. Jtei/ttia v. Onler, .32 t,). li. ^^i *
On a motion to set aside a conviction arl
warrant of commituient on the grounds : |, ^\1.
the conviction was not in tlie magistrate's ofiiof
but in that of tlie clerk of the peace ; •_*, that th
conviction did not contain a clause of ;listre»«'
and, 3, that the conviction only warrantfil the
imprisonment without liard labour, whereas th
prisoner had been committed witli hard lahcmr'
— Held, that tlie prisoner must be <liseharBe.l
but on tiie last ground only, y/.i//),,, y. ]'.„.
IIKIHK, U r. K. (it).— C L. Chamb.— Morrison.
VI.
Vll.
VIII. Fok Xon-Pavmest of Tolls— .Vjc Way.
L'ndeh Masteks' and Servants' Ait —
iSVc Master and Sekvant.
Fok Sellinc; Liqiok witiioL't License
— Sec Taveuns and Siiors,
CO-OPEKATIVE ASSOCIATION-.
Tlic plaintiffs supplied goods to a co ojieiativf
association, formed under 29 Vict. c. •2'2, on th''
order of their manager. The terms of ])nreha.<f
were .said to be civsh, liut it ajipeareil that
according to the course of dealing between thi-
parties, before payment tlie invoices were laiij
before a Iwiard meeting, and if found correet the
trcivsurcr was ordered to pay. Tliese gooils were
ordered in .January, and not paid for, ainl in
July tlie plaintiffs sued : — Held, not a cash trans
action, within the 14th section of the aet, an4
that the plaintiffs could not recover. Senihli',
that the defence shouM have been speelallv
pleaded, and the plea was allowed to be aihlcd
Fi/zijenilil it III. v. The Lonilmi ('ij-njHniiii-'
Asiiociitfioii, {Limited,) '27 Q. B. 605.
Commissioners appointed under '2 \'ict. c l.">,
for the protection of the lands of the crown in
this province from trespass and injury, to re-
ceive informations and iiujuire into complaints
that may be made to them against any person
for illegally possessing himself of the lands, must
shew upon the face of a conviction by them
under that act, that the lands of which illegal
possession had been taken had Iteen actually
occupied and claimed by some tril)e or tribes of
Indians, and for the cession of ^>iiich no agree-
ment had been made with tlic government. A <
conviction alleging that the party convicted had J
unlawfully possessed himself of cnnni /iiintti is 1
liad, as they have no general juris<liction over i
such lands. Little et al. v. Kmtiiuj, (> O. S. 2t).'>. |
Semble, that the recital in a warrant by the
commissioners under the act to dispossess the
Earty convicted, that thirty days' notice had
een given him to remove from the lands, does
not afford sutficient evidence that such notice
was in fact given. S. ('. Il>. 270.
Form of conviction under the Temperance Aet
of 1864. Ill re MeVitll, 2 L. J. N. S. 1().
A conviction, though void, must l^e (plashed,
under C. S. U. C, c. 126, s. 3, before an action
will lie against the magistrate for any thing done
under it. Graham v. Me Arthur, 25 Q. B. 478.
On an application to quash a conviction for
something done contrary to a by-law, the legality j
of the by-law may be 4piestione<l though it has j
not been quashed. Sec. 205 applies only to ]
actions brought for acts done under an illegal {
CO-PARCENEKS.
See E.sT.vrE.
COPIES.
1. Of Affidavits — See Affidavits.
II. Of IkHfMENTs IN Evidem'e -.y.j Evi-
dence.
HI. Of Pleadings— .Vt'c Pleadinc; i.\Eviin.
An athdavit verifying the copy of a \)ip
" that it is a true copy as the deponent is in-
formed and verily believes,"' is iiisutiicieiit.
t'hiifc v. Pin-r, 2 Q. B. 98.
CORONER.
I. PowEKs AND Liability of, 74^.
II. iNyi'EsT, 74!).
III. Fef,s of Coroners and AVitnf.ssix ''A
I. Powers and Liability of.
Our fict 48 Oeo. III. c. 13, s. .'>, gives ft'
authority to the coroner to summon a siieciil
jury. AV here the sheriff is interested someimlii-
ferent jierson appointed by the court muststrikt
the jury. Ckmdinan v. DickwH, 8 Q. B. 281.
(49
CORONER. .
\ barrister cannot insist upon being present [ relevant and within the province of the jury ;
til coroner's inquest, and upon examining and and altliougli tlie eviilence seemed to preponde-
*L«-examininK the witnesses, &c., and can main- rate the otiier way, the court could not on that
cross-examnung
taiu lui action agamst the coroner for excluding
him from the room. Defendant in such an action
hariiig justified as coroner it was -Held, on the
authority of (tamett r. Ferranil, (» B. & V. (il 1,
account alter the linding, Jii re Miller et al., 15
Q. B. •244.
Hehl, that the iiKjuisition set out in this case
was bad, for the principal was not sufficiently
that the plea was good, for, 1. 1 1'c e-roner was ^ ^.j ^ either with manslaughter or murder;
„nt liable to a civil octum for .inything done in , .^^^^j >?^ ^^..^^ „„,.^,,t.,i„ „.,,;,,, ^...jf,,^ j^ „.,^ intended
Uisjiulieialcamcity ; and, 2. He wasautlionzcd ! ^^_ ^^ ^,,^, ,_^,^^.,,^ .^^ ^.^y . ^^^^ ^^ ^^
i„ what he dul In a second count the plaintiff ; ^^.^^^ J^^^ ^„ ,,.^^.^ ,^^,^,,^ ^^^ ,^^ ^,^^ •' mur.ler
set out the facts stating that as a barrister and , ,^f„,,.,.^i,i •• ,f ;,„, ,._ 'y;,.,,,/,,„ ,,, „/ „; g y_
attorney-at daw he had ))een employed by certain I ^y-
clients to attend on their behalf at an iniiucst j
held by the defendant as coroner on the budy of j Held, that a cnroner's warrant to arrest .1. C'.,
me W., in the issue of which they were intercs- | reciting a coroner's inquisition, and stating the
teil ami that the defendant unlawfully and niali- j offence as follows: that J. C. " stands charged
iously, and without reasonable or probable . with having iiitlicteil Idows on the body of the
■aiise refused to allow him to act, and forcibly ; said I). F.,"and not shewing the place where
•oimieUed him to desist :— Held, bad, for the j the blows, if any, were ititlicted, or tiie offence,
reasons that the plea was sustained, yl ;/»(•('• I if any, was committed, was bad. In re <'(lr^
- - -- ■ ' niirlidi/, 10 h. ,h ii'2'h — C L. C'liand). — Morrison.
A coroner's jury found the cause of a death
into which they were iiuiuiring to have been
disease, adding that it was accelerated by an
over dose of certain drugs taken in excess, and
improperly compounded, prescribed and ad-
ministered by one F. as a cholera preventative ;
and that F. was deserving of severe censure for
tlie gross carelessness displayed by him in such
comp(ninding and prescribing. This in(juisition
having been brought up by certiorari, granted
on the application of F., the court refused to
(plash it, htdding that the imputation which it
contained, not amounting to any indictable
offence, gave him no right to have it quashed,
and that, under the circumstances, public justice
did not re(|uire their interference. Quicre,
whether the affidavits were properly entitled
The (jtueen, plaintiff, r. Koliert Farley, defen-
dant. Bc/nni V. Forte)/, 24 Q. B. 384.
A coroner's iiupiest held on Sunday is invalid.
In re Coujter vl ill., 5 P. R. 25(i. — V. L. (.'hamb.—
tialt.
3»ine
V. iitmni, '1\ Q. B. 39().
Plaintifl' suetl defendant in trespass, stating
that acting as coroner he assaulted the plaintiff,
Jo The second count stated that defendant was
acting as coroner, &c., and that a jury being
(luiv sworn he held an iniinisition on the body
(it iiiieN. F., then lying dead, setting forth the
timliug of the jury, which shewed that deceased
had dieil from the effects of laudanum adininis-
tereil according to a prescription by plaintiff,
ami through culpable negligence on his part in
imt having given sufficiently explicit directions,
and charging that defendant maliciously and
aithaut reasonable cause issued his warrant for
iilaii.tiff's arrest and committal for wilful mur-
iler, on whidi plaintiff was arrested, kc. At the
irial, oil its being objected that defendant, as a
wroner, was a judge of a court of record, and
that no aetiiui wouhl lie against him for aiiy-
tliiug done in his judicial capacity, plaintiff
proiioseil to shew that he had acted maliciously,
aiid was tlierefore not protected, but without
sut'gestiug in what particular he had so acted.
It was not ilisputed, however, that defendant had
acted within his jurisdiction and super visum
wrpuris, or that he had issueil his warrant on
the finding of the jury. On this the plaintiff
vfaa nonsuited : —Held, that as defendant was
acting judicially, trespass would not lie against
him ; and that though the nonsuit did not ap-
pear so erroneous as to warrant its being set
aside, still, that if the plaintiff" desired to i)resent
facts to the jury not suggested to thenx at the
I trial, 'le should be allowed to do so, on payment
I if costs. Giinitrx. Cnleiiiuii, ]!)('. 1*. ICR!.
k coroner is a magistrate who may give a
certificate of loss under an insurance policy.
Knrx. The Britixh Amerieii A-tMiirunre Co., 'V2
(,1. R. 5Cil.
n. Inquest.
At an inquest held upon the body of a boy
whii had cominittetl suiciile, the verdict, after
tiinling the cause of death, stated that from
evidence submitted the jury judged that the
Imy's master, a medical man, had not done jus-
tice to him aecortUng to his agreement made
with the boy's father in Scotland, in regard to
; his clothing and the labour he had to perfomi :
-Held, that the latter part of the verdict was
III. Ff.KS or COKONF.RS AM) WlTNK.SSES.
A coroner is not entitled to poundage tni an
attachment against a sheriff', /n re J)iiiiiiiiii, 2
Q. B. 118.
A medical witness attended during two in-
quests held on fifty-two iiei-sons, and occupying
several daj's ; no post nun'tem examinations
were made : — Held, entitled, under 13 & 14 Vict,
c. .")(), only to tl.'is, for each day's iittendaiice, (not
for each body), together with his mileage in
travelling. hi re
B. 498.
A.':kiii null Cliarteri.i, 13 ii.
Under the "20 Vict. c. 3t>, the coroner is made
the judge of the necessity for investigation into
the cause of a fire ; and therefore, to an appli-
cation for a mandamus to the treiisurer to pay
him his fees, it was held no answer to shew that
in the ojiinion of the reeve and others the enquiry
was not called f(U' : — Held, also, that the want
of funds in the treasurer's hands M-as no answer,
the payment not having been refused on that
ground, hi re Feriiii>> niiil Cuolei/, 18 Q. B. 341.
Where a coroner, under C. 8. U. C c. 125,
suniwoncd a second medical practitioner as a
II
Ms
: -I'd
m^
ii
, I
i
■ 1 ! ■
Mi ■■
' - '' ' ■;
m
■■i.ip :?i
: i-
i. .- M
:m
y .11 I ,j III |» . ,4||ipi
I*'' !
751
CORPORATIONS.
lo:'
lie ^'^ p j]
IX. Amalgamation of Companiks, 782.
1. <)/ Jfnllifdj/s — Si'c Railways andKih
WAY ("OMPAN'IES.
witness at an inc|ue8t, and to perform a post
mortem examination, but it waa not shewn that
such practitioner had lieen n.'imed in writing and
his attendance required by a majority of the
jurymen, as provided for by s. 1), a mandamus to
the coroner, to make his order on the county
treasurer for the fees of such witness, under
8. 10, was refused. .Send)]e, that on .in appli- ! XII. Miscf:LLANEofs Cases, 784.
cation for such m.indamus the c.mnty treasurer j Beqi-ESTs ro-.SV
as well .as the coroner must be called upon. In' ^
re Hnrhottle ami WHmui, 30 Q. B. 314.
X. DissoLrTioN, 783.
XF. Fouekin Corporations, 78.S.
' ' i|
CORPORATIONS.
I. Corporate Name and Existence, 752,
1. Bmldtnij Sorieties — See BriLDiNO So-
cieties.
2. Municipal Corponttioii'i — See Mi^Mi'i-
PAL Corporations.
II. Stock.
1. Sitbscrijition for, "t'A.
2. Maki)i(i CntU, 7.')."i.
3. Trail ■■*/>■)•.
(a) (leiieralh/, 757.
(b) .9(1/* and Trann/er under Ejecudon,
759.
4. Forfeiture, 760.
5. Liahilitij of Sliarelwltlers to Creditors,
760.
6. Of lidihrai/ C'liiiijKinies — .sVc Railways
AND Railway Companies.
III. "Directors, Officers, and Agents.
1. Election of Directors, 7()2.
2. Pemomil LiahHitij of, 7()3.
(a) Particf to BilLaor Xotes —See Bills
OF Exchange and Promissory
Notes.
3. Ponvr.-! if, 705.
IV. Liability of Members, 7tj<).
V. Powers of, 767.
VI. Contracts by and with Corporations.
1. Liahilitij on Contracts not under Seal.
(a) For Work and Labour, 1~\.
(b) Of Hirinij, 774.
(c) Leases, 775.
(d) Other Contracts, 776.
* (e) In resjiect of Bills anil Xotes — See
Bills of ExcHAN(iE and Pro-
missory Notes.
VII. Actions by, 770.
VIII. Actions and Proceedings against.
1. Proof of Seal, 779.
2. -0.1/ Members, 780.
3. Procedure, 781.
(a) Service of Writ—See Practice at
Law.
4. Other Canes, 782.
5. Mandamus to— See Mandamus.
6. Quo Warranto—Ste Quo Warranto.
MoRTSUR
— ^\ ILL.
XIV, Chartered and other Corporations.
1. Bankinij — See Banks.
2. Biiildinij—See Building Societies.
3. Canals— See Canal.
4. Colleijes—See Colleges.
5. Ecclesiastical — See CiirH(HF..i.
(). (las — See (rAs Companies.
7. Harbour — See Harboii: (.'ommnio,
8. Insurance — See Insurance.
9. Municipal — See Municipal Curpciri- i
TIONS.
10. Raihmtji — .SVf Railways anti Kailmav i
Companies.
11. Pond— See Way.
12. School— See Public Schools.
13. Street Bailirai/ — .SVc Street Kailwav. j
14. Teleijrajih — .SVf TELEORAni.
J 5. Tein/ierunce Societi/ — See TemperasiiI
Societies.
10. Other Coriiorations — ,SVc Their Sml
RAL Titles.
T. CoRPOR.vrE Name and Existenie.
Held, that no action will lie on ademiseinflifl
n.ame of the trustees of the Presbyterian clnmil
at Oalt, as in a corporate cap.aoity. /V il. VA
Trustees of the Presbi/feriini Church in (!(ili.k\
connexion inlh the Church nfSrolhiinl iiinloi'Di'h
son V. Bain, 3 Q. B. 198.
Where defendant pleads over, ami takes iij
exception to the declaration, the ocuirt oamii't |
take judicial notice of the want of legal autkmt;'
in tlie plaintiffs to sue in their corporate Lapaiitv.
Blink of B. X. A. V. Sheru'ooil, (i Q. B. 213,
The plaintiffs declared on a linml tn "Tit
Beverley Municipal Council," there Wing to j
such corporation in existence. 1 )efeii(laiits 'liii
not deny the making of the bond, but ijltaiW
over. On demurrer, — Held, that by iintiJriil
ing non est factum, dcfeiulants were ikte-
red from taking the objection to the fonii ni tie j
bond as pleaded. The Cor/ioniHoii of the Tm-
shiji of Bererleij v. Barlnw et «/., 10 ('. ?.\'i
Held, tliat the act abolishing districts diiimt |
take away from defendants the name given lo i
them by their charter. Hiujhes v. Th' MiiImI
Fire Insurance Co. of the Disirid of ynmA,^\
Q. B. 387.
^^'here, in styling the lessors of the plain
—"The Chancellor, President ami Scholanoi
King's College at York, in the Province of I'pper j
Canada" in the consent rule, appearance ami p ^
in ejectment,— the words "in the Pruviurt'i
Upper Canada," were omitted, the omission w ■
held not material, or, at all events, uotanuUitr.
(53
CORPORA.TIONS.
754
, 782.
andKaii
Mortmaix
JVORATInS\
10CIETIE.<.
nr.s.
('lIMl'ANll:-,
K.
Al. CoRPdRl-
ANnFvAUAVAV I
noi.s,
F.F.T KaII.WAV.
APII.
; TemperamiI
• TlIF.IR Skvi-
,XISTKS( F..
U'misciiitlitl
teriaii clmKh|
l)uf ,1. Th
in 'i'(i''. i« I
/ miilol'Di'h
A
Doe il. Chan-
Roe, 1 C. L.
ami takes no '
,■ ciiurt oannat j
legal autbunt;-
uirate n^aVj.
d B. ilS.
loml t» "Tit
liere Iwilig m' ',
Jet'eiulantiW |
„ Imt iiluvltJ
by udtliW-
;.lie fonii I'i il''
111 th' Ton-
OC'.F.IIS.
istrietsiliila»t |
^uanie givu,
Iv. Th 1'':
If tlie plrf' I
Ll Sclwlann
IviiiceolVirj
Iranoeaiulp
(e Province of ]
.oiuiasi""™ !
uotaiialli'y'
and might be cuml by laches.
,eW,r, .t'C. oj hinij* tolleije v,
Ciiiunb. in.— Macaulay.
\ boiiil sued upon in the name of "The Trent
.i„a Fraukfonl lload Company " was in tlie name
it the president and directors of tlte Trent and
Krankfor.l Hoad Company ; -Held, no objec-
tim The Tri'lit ami Fmnkford Howl Vo. v.
Helil, that the coninii.<sioners for the town of ,
Peterlwrough, appointed by 24 Vict. c. 01, are |
not a cdrpiiration, and cannot be sued as such. |
Uirtii this (il)jection to the declaration, the action j
was held, not sustainable, this court being of ,
cminioii that they shoul.l be sued bv name, ;
a'l.liug their statutory designation. 7 he Com- \
\immm »f the PetevUorouijh Town Tnifit v. |
Co,hr<me,nC. V. HI. |
The name of the defendant as a S(de corpora-
tion by the statute, was "The Roman Cathohc
llpiscopal ( 'orp<jration of the Diocese of .Sand-
wich iu Canada. " The instruments ileclaretl on
were in the name of the " Roman C'atliolic Bishop
„f Sandwich :"— Held, that the variance was
ini! teri.ll. Hii'l- v. The liomnii Cathnlie Kjm-
f, .i-pomtion of the Diocene of Sttndirieh, 30
. m.
The trustees for the time being, under the
Religious Institutions Act, C. S. U. C. c. (iO,
mav bring ejectment in their imlividual names,
(Wscribing themselves as trustees, &c., or in
tiicir quasi corporate name_ alone, without their
inilividual names.
•.■O C. P. 451).
Where the plaintiffs sued in their individual
names, describing themselves as trustees of the
Wisleyau Methodist Church of Brussels, an
auieiidment was allowed at the trial, by striking
out the names and allowing them to sue as a
itirixiratiou incorporated under C. S. U. C. c.
t:t)!i :— Held, that the amendment was authorized.
\jhfTnili-e>t iif the Ahiteiirille Comjreijittion of
hi \Meiinn ' MethoilUt Church ni Cdnailu v.
iUfmi; 2:i C. P. "loS. See now 30 Vict. c. 135, 0.
the steamer should be taken as a payment of
ten per cent on the £50,000. This was acceded
to and carried out in compliance with a resolu-
tion of the company : — Held, an evasion of the
statute, and the company were restrained from
proceeding with their operations. Howland v.
McNah, 8 Chy. 47.
See Goodwin v. The Ottawa and Prescott R.
W. Co., 13 C. P. 254, p. 759.
HumiihretfH et al. v. Hunter,
Defendants, a company, were styled in the
lill "The Ontario W ood Pavement Co. " Cer-
Itaiii other defendants alleged to be Directors of
Itliis Co., when brought up to be examined for
liliscovery, denied all connection with it, and re-
ifuscil to answer any ijuestions relating to ' ' The
\lntario Wood Pavement Company of Toronto. "
Ihis latter luune the plaintifl''8 solicitor state<l
iw he the true ooq)orate name of the company,
intended to be descrilied by the bill ; but there
being no further evidence of this fact, an appli-
katiun to euiupel the defendants to answer the
Buestions put to them was refused. Dickei/ v.
Mm,, Wood Paremeid Co., (j P. R. 93.— Chy.
panib.— Holmested, Jieferee.
Tlie'22 Vict. c. ]'22, incorporating the North -
»^e.st Transit Co., enacted that it sliould not be
jivifnl for the company to proceed with their
iperations under the act until £50,000 of the
Tapitid stoek should have been subscribed, and
kn per eeiit. paid thereon. Subsetjuently, and
pfore such subscription or payment, a propo-
»tion was made by one C. to certain stock-
|()lilei-8 that C. should sell his steam vessel to
ae company for £5,000, and should become a
nbscnber to the amount of £30,000, and that
48
II. Stock.
1 . Sld).^cri/>tion for.
Action for calls under 1 Will. IV. c. 12,
incorporating the plaintiffs against the defen-
dant as one of the stockholders : — Held, that
the said act was not obsolete for nonuser : that
the clauses of the said act requiring the books
of subscription to be opened within two months
was only directory : that the subscription books
subsequently opene<l might bo considered as in
connexion with those previously opened, and
that all the proceedings from the beginning
might be taken together : that the omission
in the new Ixjoks of the name of H., one of
the original petitioners for the act, (he being
dead) did not render the proceedings of the
company invalid, nor was it fatal to the plain-
tiffs : that the sanction for the opening of the
new subscription books of the two surviving
V.etitioners to parliament for the act of incorpor-
ation was sufficient : that the name^^ of the peti-
tioners in the said act named need not necess-
sarily be signed to the new subscription books ;
and that defendant was not discharged from his
liability by a minute made at a meeting of the
directors, and entered in their minute book, de-
claring that the names of all stockholders who
were in arrear should be erased from the sub-
scription stock book of the company. Marmora
Foiindri/ Co. v. Miirne,/, 1 C. P. 29.
Sufficiency of declaration for calls under the
statute 1 Will. IV. c. 12, incorporating the
plaintiff's. The Marmora Foundri/ Co. v. Mur-
ney, I C. P. 1 ; The Marmora Foundry Co. v.
BosweU, Jh. 175 ; The Marmora Foundry Co. v.
Douyall, lb. 194.
Defendant had taken shares in a road company,
for which he subscribed his name, and the sec-
retary called to solicit a further subscription.
Defendant told him he would take another £100,
and the secretary afterwards, in defendant's
absence, put down his name for these shares : —
Held, not sufficient to charge defendant. Inger-
noil and Thamesford Oravel Road Co. v. Mc-
Carthy, 16 Q. B. 102.
The authority to take shares should be in
writing ; but, Semble, that a verbal authority
would be binding, /h.
A plea that defendant became holder of the
shares by subscription, and was induced to be-
come so by the fraud of the company, and that
he has received no benefit from, and has repudi-
ated the shares : — Held, good, on demurrer.
Provincial Ins. Co. v. Brown et al., Provincial
fns. Co. V. Denroche, 9 C. P. 280.
Defendant subscribed for shares in plaintiffs'
company, incorporated under 27 & 28 Vict. c.
23, and bound himself to pay as required by the
board. Somewhat over half the capit«l atock
-.1
7M
CORPORATIONS.
7:a
was thuH subscribed : — Held, no answer to plain-
tiffs' call on defendant, tliat tliere had been no
allotment of shares, and defendant was not
therefore a shai-eholder. Lukf Superior Nnvi-
nation Co. V. Aforrtson, 22 0. P. 217.
The statute provided for the issue of letters
patent on half the capital being 8ul)8cribed,
though no express provision was made as to
when the conipany should commence business ;
but the plaintins had commenced business with
defendant's full kuowleilge, and lie was, in fact,
elected and acted as a director, and never re-
signed his position as such : — Helil, tliat he
could not set up as a defence that all the stock
must be subscribed before calls could be made ;
and that the directors were warranted by the
act in commencing business, one-half the stock
being subscribed, ami in making the necessary
calls therefor. Il>.
A bona fide subscription for stock in a cor
E orate company by one person in his own name,
ut really as trustee and agent for another who
had requested such stock to be subscribed for,
is valid. Varidson v. Gntiiije, 4 Cliy. 377.
2. Mcd-ing CnlU.
The gas company of Toronto sued stockholders
in separate actions of debt, founded upon 11
Vict. fc. 14. The plaintiffs' charter authorizes
actions for calls made by the directors of the
company, "under and by virtue of the power
and directions of that act." It wa-s proved
that the secretary, acting under a resolution
merely of the directors, passed li^J'ure the 11
Vict. c. 14, came into force, notified the stock-
holders that a call of ten per cent, would be
made on the first of May, June, July, and Au-
gust : — Held, that the action would not lie.
Gas Compaiii/ v. Biiasell ef al., C Q. B. oiYJ.
Semble, that it is not a resolution of the direc'
tors to make a call upon the stockholders, which
constitutes the call, but the notice of advertise-
ment of the call itself, fb.
Semble, that where an act says, "that no
instalment shall be called for except after the
lapse of one calendar month from the time when
the last instalment was called for," calls made
for Ist of May, June, July, and August, would
be illegally made. Qusere, also, whether the four
calls could regularly be made at one time. /h.
An instrument under 12 Vict. c. 84, was signed
by defendant and others for the formation of a
road company, defendant agreeing to take three
shares. The directors named met on the 27th
of May, 1850, and called in four instalments,
each of ten per cent, on each share. The six
per cent, required by the statute was at the
same meeting paid by the promissory note of the
directors to the treasurer, who then signed a
receipt for the money, and afterwards registered
the instrument. By the 20th of November, 1 850,
the treasurer had received, by means of the call,
a sum equal to the six per cent., and he then
destroyed the note. On the 1.3th of January,
1854, another call was made, payable by six
instalments ; and this action was brought for the
four instalments of the first call, an(f the first
three instalments due on the second : — Held,
that the first call could not be recovered, for
when it was made the six per cent, had not been
iq fact paid, but tl^at the plaintiffa might regover
the second call, for on the 13th of January tli
six per cent. ha<l been actually paid ; aull \{
company having; proceeded bonll nde in the cm.
struction of this road, the irregularity in rei,n>'
tering the instrument of incorporation befn^
such payment was cured by 1(5 Vict. c. lOO ,
55. Ac/.wH((H(/ Xaxiiiiijairi'j/ii Houil Cn, v. /i,,/,
12 Q. B. 586. ; confirming, as to the fiist iidiu!'
Xiaijarii FalU lioail <.'i>. v. lieiixim, 8 i). B. ,30"
See, however, XeUon and Xanmimitreiiii fi,l,i
Co. V. Balex, 4 (A P. 507.
A gas company incorporated uiuk-r III X^-i ^
173, by -resolution of the directors luaile twtiin
calls to be paid on particular days naiiied, I'liit
by the notice jublished they were inaile ijav.
able on different days. Defendant liad written
to the company, enclosing his note fur four nf
the calls, saying that for the balance he wmilil
send his note soon, and requesting tlieiii to aecciit
this offer, as he had been absent in Europe, iu'it
hiid no knowledge of any of the calls. Tiit
company, however, declined :~HeM, that tlie
calls were illegal, being unauthorized liy tbf
res<ilutioii, and that defendant was not estouiiiil
from disputing them. London Ca^ ('(iiiiikiiiii v
Campbell 14 Q. B. 14.3.
A call of four per cent, on the first iiistalinent
of five per cent, on the capital stock, made liv
a (juorum only, and not by a majority of tii't
directors, — Held, a good caU, under see. Dof \i
Vict. c. 1G6, pLiintiffs' act of incorporation. On-
tario Marine /mtiirance v. Irebinrl, 5 V. V. l,')il.
When the directors of a railway eompanv at
one 7«('?^"h(/ made 'several calls payable at inter-
vals of two months from each other : — Held, liml,
for the calls cannot be made at leas intervals
than two months, ^foore ef al. v. Mrljtivu ||
C. P. 534.
The plaintiffs' charter provided that stock-
holders should pay up their shares " by sueli in-
stalments ana at such times and plaees as the
directors of the said corporation shall apiuiiiit."
It provided also for tlie appointment of a iiiaii-
aging director, "to whom shall be delegate!
„iie special management of the Inisiiiess ei the
society." The directors passed a resoliitiuij,
ordering a call, payable in two payments on days
specified, and directing the secretary to ndtil'v
the stockholders according to the act. Auotirr
signed by the managing director " by order,"
■WHS published, and a circular signed by him sent
to each shareholder, in which the plaee uf pay
mcnt was mentioned ; but there was no meeting
of directors between the passing of the resoh-
tioii and the day named for payment- hiM
action for this call : — Held, a fatal objection that
the directora had appointed no place of piivment.
the advertisement and circular being the act of
the nian.aging director only. Prorhknt Z/W.li
giiranee and Investment Co. v. Il7/-«(()i, 25 Q. B.S.
Held, that the Lake Supcri(jr Navigation Coni-
p.aiiy, incorporated under 27 & 28 Wcl c. 'IX
were entitled to call in all the unpaid stock at
one time, as the act did not prevent their so
doing. Lak-e Superior Navuiatiun L'o. v. Mom-
son, 22 C. P. 217.
To an action for calls, alleged to Ix; due Iiy
defendant to the Canada Car and M.aiuifactiiriiij
Co., defendant pleaded, on equitable gronni«,
that he subscribed for the shares and becaii: «
shareholder in a company, called tlie C'aii*ii
Car Co., incorporated by letters patent, forcer-
'^»^
7.55
(57
CORPORATIONS.
ns
that stock-
liy sufli ill-
jjlaces as the
nil apiKiiiit. "
eiit (if a man-
M (lele^attil
usiness ot tlie
a vesohitiuu,
iitutsouilays
ary tn notify
let. A uotii c
by iirder,
cl liy him sent
place uf iiay-
as nil inoetin^
if the rtsoln-
ment. In an
ohjectioiitliit
:e of payment,^
ing the act oi
.,'.'5Q.B.53.
igatiiin C'oni-
Vict. c. '21
ipaitl stuck it
vent their »
(,'„. V. Horn
Jto Iw (Int ''J
llanufacturing
Tble grounds,
uulbecat:'
the CanJih
Iteiit, fDr«f-
tain ii)eeilieil puriKises, (iiul not otherwise : that |
afterward!*, anti witliout the assent anil against
the will •'I' (lofundnnt, that cnnipaiiy applied to ;
the Dominion legislature and olitained an aot !
cnnstittiting the shareholders therein a body
c(]riKirate, under the name of the Canada ( 'ar
mill Manufacturing Co., the now plaintiffs : that ,
'hvtlie s.aid act greater powers were conferred j
upon plaintiffs than were possessed hy the Can- i
aim Car Co., 'I'l'l tl'c nature of the Imsiness was
varied and extended, and the undertaking ren- I
iloreil more hazardous than was conteiniilated by i
the Canada Car Co. or the defendant when he
kianifl a shareholder thereof ; and that defen- i
ilaiit never agreed to become a shareholder of or '
invest his money in a company possessing the j
imwers of the plaintiffs ; whereby defendant is
relieved from liability : -Held, plea clearly ))ad ; :
for the act was binding on all tne shareholders, '
whether assenting or not to the application for |
it; anil this court had no jurisdiction to relieve j
ilcfenilant from a liability which the statute j
expressly declared that he should continue to be
jiihiect to. Cniiniht Car anil Jfdiiiij'iicliiriiii/ i'u.
V. Hun-U, 24 C. P. 380. i
3. Troiufcv.
(a) Ucnfralli).
A witness who was a stockholder in and also
the president of a liauking institution, stated, in
an action brought by the bank, that he had
released his stoclt for a nominal consideration to
the ilirectors, but that he had no doubt it would
he restored to him : — Held, that the transfer
vas merely colourable, and that his testimony
was not admissible. Bank of Mkh'ujan v. Grmj,
1 Q. B. 422.
Defendant, as sheriff, by his deputy, levied
under a fi. fa. on twenty-five shares of the stock
of the Bond Head Harbour Co. , in the books of
the said company appearing to be the property
of W. H. B. Having written to the plaintiff in
this suit to say that he had done so, he after-
wards returned the writ nulla bona :— Held,
that the shares not having been transferred in
the books of the company, were at the time of
the levy at the order and disposition of said W.
H. B., and liable to execution as being his pro- j
(lerty, and did not pass to his trustees under a |
deed of assignment to them. Brock v. Jfuftaii, \
1 C. P. 218.
Assumpsit for calls on shares. Plea, that de-
fendant was not, when action brought, nor is the
; holder of said shares : — Held, bad, for by the 10
Ml Vict. c. 68, s. 13, incorporating defendants,
a person ceasing to be stockholder after the call
; was maile would still be liable. Montreal Mining
I Comimmj v. Cuthhertson, 9 Q. B. 78.
Certain stock in the British America Asau-
i ranee Co. was transferred by A. , and the transfer
1 entered in the stock ledger, so that the shares
[ stooil in the name of the transferree, but before
j any acceptance had been signed the shares were
I seized under an execution against the transferror :
—Held, that the transfer was complete and the
[ seizure illegal Woodruff v. Harris, 11 Q. B. 490.
Held, that an assignment of stock in this
I company, duly executed by assignor and assignee,
I lor a good consideration, with proper notice to
j the company, is valid without further registra-
Ibon, provided the assignor ia not indebted to
the company and owes no calls. Crnw/onl v.
Prurinriitl /nmiranrr Co., 8 C. P. 263.
In an action against a harbour company, for
refusing to register a transfer of stock by one S.
to the plaintiffs : -Held, that although (S., being
l)re»ident of the company, might perhaps have
registered the assignment himself, yet that the
refusal of the secretary to do so formed a good
ground for an action against the company. J/c-
Miirrirli it iil. v. lioml Heiul Harbour Co., 9 Q.
(,>. ;«3.
Htdd also, that the comiMiuy had no legal lien
on the stock for harlwur tidls duo by 8. to them,
and could not therefore on that ground refuse to
register the assignment. Ih.
Held, also, as to four shares, of which there
ap])eared only an entry of credit to S. in a
ledger, but which were not standing in his name
in the stock-book, that the plaintiffs were not
entitled to recover in respect of such shares. Ih.
Hehl, also, as to the shares for which the
plaintiffs were entitled to recover, that they
were strictly entitled only to their value at the
time of demand and refusal to transfer ; but the
jury having allowed a larger sum, and this ques-
tion not having been pressed on the argument,
the court did not reduce the verdict. Ih.
Held, that registration in the books of the
company ia necessary in order to complete the
transfer. //).
To an action brought for two calls, one made
on the 9th of December, 1858, and the other on
the 17tli of June, 1859, defendant paid into court
the first call, and pleaded never indebted to the
second. At the tri.al he admitted having held
the stock, but alleged that on the oth of Febru-
ary, 1858, he had transferred it to M., and he
accounted for having subsequently paid the first
call sued for, by stating that he had given a
bond to the plaintiffs to pay that call, and there-
fore did so notwithstanding the transfer. To
prove the transfer the plaintiffs' transfer book
M'as produced, in which it was entered, the trans-
fer and acceptance being signed by D., who was
then the plaintiffs' miinager, as attorney for
both parties, and their stock book was also pro-
duccif, in which the stock appeared in M. 's name
since the 5th of February, 1858. The powers of
attorney were not produced, but the plaintiffs'
secretary, who produced the books, said he
believed they existed, and that all the papers
were in the hands of the plaintiffs' attorney : —
Held, that the transfer was sufficiently proved
for the purposes of this action, being signed by
the plaintiffs' officer, as agent for both parties,
and recognized in their books ; that it was un-
necessary to produce the bond given by defen-
dant ; and that defendant wivs not estopped by
having paid the call made in December, 1858,
from denying that he had transferred the stock
before the call was made. Provincial Insurance
Co. of Canada v. Shaw, 19 Q. B. 533.
Wliere the directors of a railway company at
one meeting made several calls, payable at inter-
vals of two months from each other : — Held, bad,
for the calls cannot be made at less intervals
than two months ; and that a stockholder who
had paid the first call thus made, and then trans-
ferred his shares, was not responsible for the sub-
sequent calls thus illegally made. Moore et «{
V. McLaren, 11 C. P. 534.
ii
■ i\
i'.-l
■51
f
m
!:■ Mp:
m,
mm
1
1
1 '1
f
'•
1
1
HB
1 .
;■ '4
?
759
CORPORATIONS.
7t)(i
i: i-:
Held, also, that the insolvency of the nssignco
was no objection to tho transfer, tho only con-
dition for a valid transfer being the payment of
all calls. /I).
Held, that a company incorporated under 27
k 28 Vict. e. 23, has not power to refune to allow
a transfer of shares of its stock without nsHign-
ing a siitiicient reason therefor. /« rr Smilli v.
Canada Cm- Co., G I'. U. 107.-(.'. li. ('hamb.-
Riuhards.
See iVcA'c/uiB v. Kittriilyi; 24 C. 1». I p. 7(il.
(b) SaU and TratiMfor under Exirittion.
Held, that Bond Head Harbour Co. stock was
porsonal property of the debtor, and liable to be
seized and sold under an execution against him.
Brock V. RiUtnn, 1 C. P. 218.
Held, that stock in a building society may be
taken in execution under 12 Vict. c. 23 ; but,
Held, also, that under tlie circumstances of this
case set out in tho report, the stock in nuestion
was not property Iwlonging to the execution
debtor, Banks, which the sheritl' waH bound to
seize. Robinson v. Gram,i<\ 18 Q. B. 2()0.
In an action by a purchaser of stock at slieritf 's
sale, claiming a mandamus to the company to
enter the plaintiff as a shareholder : — Held,
that the C. S. C. c. 70, as well as 0. 1;. P. Act,
88. 255, 25(), must be ol>eyed ; and that iis no
copy of the writ had been served on defendants
with the sheriff's certificate, the plaintiff must
fail. Ooodwin v. Ottawa and Prencult Railway
Co., 22 Q. B. 18«.
Upon an application to compel a railway com-
pany by mandamus to register a transfer of
stock, it appeared that the stock had been sold
under an execution recovered against "the
mayor, aldermen and commonalty of the city of
Ottawa," and by C. S. U. C. c. 54, the name of
the corporation was changed to "the corporation
of the city of Ottawa :' — Held, that the writ
properly followed the judgment as recovered,
and was sufficient, the corporation being for-
merly known by the name tlierein given : — Held,
also, that a demand for the transfer of stock upon
the secretary and treasurer of the company, and a
notice of facts served upon him in tne name of
the company was sufficient, the court being of
opinion that service and demand upon the presi-
dent was not indispensable. In re Ooodwin
and the Ottawa and Prescott R. \V. Co., 13 C.
P. 254
Several demands to transfer the stock having
been mode, and delays and evasive answers given
without in direct terms refusing : — Held, that a
sufficient refusal was shewn to justify the issue
of a mandamus to compel the transfer. Ih.
Held, also, that a mandamus may be directed
to the oompany, without naming the officers. 1 h.
On application for such a mandamus : — Held,
that a demand and refusal after service of the
attested copy of execution was essential, under
C. S. C. c, 70. The execution debtor was the
E resident of the company, and on shewing cause,
e asserted payment of the execution before the
sale, &c. : — Held, that this could not justify the
company in refusing to transfer, for they had no
oonoem with the transactions between the exe-
cution plaintiff and defendant, or between defen>
dant and the sheriff. QnuTc, as to tlir I'llVct i.i
a delay in serving the attested copy )" yninl tii
ten (lays aft('r the sale, prcscribcil liy tlici,!
Ill )•(■ (liiilhit mill till' Siinilii'irh ninl H';,,,/,
<lrai',l Rond Co., 2(> (/. B. 24«. "'
Held, that tho stock of an incorporatcil odn,
paiiy is only bound from the time \\\wn (1^
notice of the writ is given to tlic cniiiipjinv I,,
the sheriff, under ('. S. (!. c. 70, n». ;). 4,\fl,\
not from tho time of the delivery of the w'rjt t„
the sheriff. Iliitrli v. Hnwlnnd, '> p. |; ■>.)■(
('. L. t;hamb. -Dalton, ('. ('. .0 /'.
4. For/filiiir.
Ilelil, in accordance with the court of (nininiiii
Pleas, that tlie company were not ivstriital tu
the remedy by forfeiture, but might iiiiiintiiiiian
action against a shareholder upon citllH of sturk
subscribed. Draper, .)., diss. .Munntirn I'uu,,.
ilrij Co. V. Jiii-ktim, !( (l. B. 50!>. Sue .Miiriin.m
Foiuidrn Co. V. M lime II, H". P. I, 2!l ; .Mnriu,,,,,
Foiindrij Co. v. RoKWell, I V. P. 175.
To a declaration for calls under scctidii 10 nf
plaintiff's charter, 12 Vict. c. Kili, (li'fuiiiluiit
pleaded, that by nonpayment of saiil calls tin.
shares became forfeited in pursuance of tW
statute, and tliat defendant ac(iuio,sct'il in siioli
forfeiture, of wliich plaintiffs had notice : - Helil
bad, for defendant could not tlinn foifeit the
shares. Onlitrio Marine In^. ('<>. v. /rc/mnl "i
C. P. 135.
Where a trading company, incorimrateil l.v
statute, became insolvent : — Held, that unc lif
the partners, being also a judgment croilitur ni
the company, was entitled to a decree ciiniiielliiii;
the directors to make calls upon the stdck u\
subscribers, notwithstanding a clause in the
statute declaring the shares of defaulters shuuld
be forfeited, the forfeiture l)eing cunnilative tn
all other remedies to which a creilitnr was en-
titled. Harris v. The Dry Dock Co. , 7 ( liy. 450.
In January, 18(!4, a non-borrowinj,' nicnilieriil
a building society tlied intestate. \(i une a.!
ministered until June, 1867. In that interval
his shares in the building society ran into arre.ir,
and in consequence the society, in Noveinlier,
18C5, declared them forfeited, and carrieil the
amount thereof to the credit of the pmlit ainl
loss account. After the society had been wouiiil
up or was supposed to have been woiunl uji, m\
the .assets distributed, letters of adniinistratimi
were obtained, and the administrator aiJiilicd U
the society to be admitted as a nK'nil)ei' thereiit,
but was refused :-r-Held, 1. That the iii'oceoJiii;.'
of the society to forfeit the sliares in tlie absence
of a personal representative was illegal ; 1 That
the plaintiff (the administrator) was entitled to
relief, and that the lapse of time l)etwecn the
attempted forfeiture and the procuring letter?
of administration was no answer to the claim.
Draper, 0. J., Hagarty, C. J., Wilson, J., anil
Gwynne, J. , diss. Okus v. Hope, (in apnea!,) 16
Chy. 420 ; S. C. in the court below, I4Chy. 484
5. Liability of Shareholders to Creditor).
Tho plaintiff, a creditor of a company incor-
porated by lettei-s patent, sued defendant, i
shareholder, who pleaded that there was nothing
due upon his stock. It appeared that there were
161
CORPORATIONS.
76i
nine ihi»rrhfil(lurK, two of ulioni held ii (witont
i -ht umi'''" "'"'i''' t'"" <''>iiili'Uiy wi'i'c to wc»rk.
The ilcfeniliiiit hclil 1?:>,0(K) ntn'ck, cm wliicli Ik;
|,ivl iiftiil i" ^''"''' •'yi.OlM). It WiiM ;wriili;.'t'<l lir-
twccii the jifitciitiH's mill tlu^ (itlitT Kliari'lidlilcrN,
that the liitter Hlitiuld pay an aililitioiml tfii \wv
,c'nt. "II ♦1'^'''' *'^'"'''' '"i'king twenty \ivv cent.,
in conKiileratiiin of whii'li tlui jiati'iitocH, who
were will to liavo a lar^'c casli claim agaiuHt the
idiniiany f"i' ""''f piiti^i't '"ife'l't. were to pay uii
the Wftiifc of the unpaid utoek of tliu Heven
sharehi>i<li.'re. L'qiial to .<|('28,()00, out of tliis ehiini.
In imrmiaiK'e of thiH arrangement, eaeli of the
seven k'ftve iii« cheek to tlie Mecretary for tlie
lialanue of lii» unpaid xtoek, wliieh tlie necretary
that the limit, preHcril>ed by ft, .V>, applies to
the >{cnernl p;iyment in full of the Mtock, not to
]iayment liy one individual Mharcholder ; and
that it wiiH unnecewHary to hIiuw that dofendantH
paiil up withii> the time mentionei) in the declar-
ation of incor]>oration, or that the certillcate wan
liled luifore the contraetinj; of the delitH Nued
for. //'.
Under H. ,'{<'{, an hoom a^ a Hharehiddcr, liaH paid
nil his full shares, and registered the certificate
jirescrihed, his liahility ceases, cxcejit in the
eases specilied in the act ; and this notwith-
standing s. 34, which, owing to the manner in
which the previous statutes have lieen eonnoH-
lated, is apparently inconsistent. /'(.
pica
ii,ii»in->- "• ••■ I , ,„i,,„ ■ ,„i, , ,,„„„,j,.,i ^.i,.,,' dated, IS apparent V niconsistont. /').
DiisKwl "II to the patentees, who accepted tliem > 1 1 .'
iiiuk'sve receipts to the couipany for the anumnt. j I'nder the ('. \.. 1*. Act, h. il7, to make a
The liateiitccH then handed hack the elieeks and I a good jilca to the further maintenance of the
receipts tu the secretary, who returned the cheeks I action, it is sutlicient if it disclose on its face
to the shiirehoMers by whom they were given ; niatter which arose after tlie coiiimencenient of
itha^iK ''ccn agreed beforehand that they were 1 the action ; no formal commencenient is neces-
to lie 8" returned, anil not used :- -Held, that ! sary. Therefore in an nctiiui by creditorH against
this transaction was not a iiayinent ill full ot the I shareholders of a company, a plea setting up
stdck, anil that defendant was liable. .Vck/cs v. I the iiayineut of their sliares in full by defen-
Irim, 34 Q. !*• '''^•"'- I dants, not saying before the suit, aiiu that a
lnanacti<in against defendants as stockholders 'certilioatc to that etVect vvas drawn up, sworn,
of A joint Mtock company incorjiorated under ( '. j and registered after the eommencement of the
S C c <i3. fiT 'Icbts incurred by the company | suit, was -Held a good plea of a defence arising
til lilaintitl's, the declaration averred that the i after suit, the defence being incomplete without
whole amount of the capital stock had not been the registry. ,V. C. I It. 145.
liaul ill, lu.r a certificate to that eflect, signed j^^^ ,.,g „f ^■^^^ i,„.,erial Statute, 7 & 8 Vict. c.
ami sworn to by a majority ol the trustees o j ^y^ .„.,.vides a summary proceeding whereby a
the company, registered in the registry office of i ^.^editor who has (d.tained a judgment or decree
the county, nor ha<l the defendants paid up I a,,ainst any company incorporated thereunder,
the full an'«'""t,i'f *•»:"" .^i'i'/''.'!^.""';„"I!"'.^".".^ ! may call oii any shareholder, by motion or other-
wise, according to the practice of the various
courts, to pay his claim. Upon such an ap-
plication against shareholders resident in this
crmiitry by a creditor who had obtained a decree :
--Hehl, per VanKcnighnet, C, that the statute
did not apply to proceedings in our courts. —
Spragge, V. ('., dubitante. Peiitcy v. The Bea-
con Anxiifuiid' (■'((., 10 Cliy. 42'2.
repstered a certificate to that etl'ect as retpured
iiy the act : -Held, good, for it was unnecessary
to negative the registration of a certificate,
under 8. 46, of the j^iayment in full of the capital
(tock, ami the recpurements of s. Sf), which were
negativeil, couhl not be dispensed with in the
I- case as stated in the declaration. McKi-uzic el
hilly. Kiltruliii' el <il., 24 C. V. 1.
Quaere, m to the application and meaning of
ii,46. //).
The defendants' first plea alleged that they
were not, at the respective times when the debts
\ were made or contracted, or at any time from
thence until the conimeneement of this suit,
[stockholdera in the company : — Helil, good, not
I lieing open to objection as tendering an imma-
Jterial issue, whether defendants were stock-
Iholilers at the commencement of this suit, for
1 the averment as to that could ni>t prejudice or
I emWass the plaintitf'. //>.
The replication to the first plea alleged, that
[although the defendants did transfer their shares
I to other parties, the balance due thereon had
{not been paid in, as required by the act : —
I Held, bad, for under ss. 2!) and 30, if all previous
I vails had been paid, the defendants might trans-
Ifer; and without such payment they could not
[transfer, and would remain stockholders. Ih.
The second plea alleged that within five years
[after incorporation defendants paid up their full
r shares, and thereafter and before suit, namely,
list October, 1873, a certificate to that effect was
Isigned and sworn to by a majority of the trus-
Itees, including the president, before the regis-
ttrar, and was on the same day duly registered,
las prescribed by the act :— Held, good, without
lalleging that it was tiled witliin thirty days, for
III. DlREtTORS, OkFKER.S AND AOENTS.
1. Election of Directors.
Where in a prior statute the two directors
having the smallest number of votes of the five
chosen in a former election were decLared to bo
ineligible at any subsequent election, and by a
subsecjuent statute the number of directors Wiis
fixed at seven, and the persons named who were
to constitute the board until the next election —
the court held that two of the Iward having
vacated their seats by non-residence, rendereu
it unnecessary for two of the remaining five to
vacate their seats. Rex v. Wellanil Canal Co.,
Tay. 300.
Where an election of directors in a joint stock
company was clearly illegal — the voters liavinu
been each allowed only one vote, whereas each
share should have given a vote — but the parties
chosen hfid for more than eight months dis-
charged the duties, the court refused to in-
terfere by mandamus for a new election. Quajre,
whether mandamus or quo warranto would be
the proper remedy. In re Moore and The Port
Bruce Harbour Co., 14 Q. B. 365.
The Court of Chancery has jurisdiction to set
aside an election of directors by persons who are
'.
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'63
CORPORATIONS,
^•il
•uhncriltorn inmiiimlly aiul not lionA tiilo. iMi'iit- 1
Mm V. (Inniiii , \ * 'hy. .177. i
A Hiiit to Hft ikHiilc nil cU'rtidu 111' (liri'i'tiii'M nf i
n I'liritonitiiiii (III tlu' nllrgcil griiiiiiclH ol' I'lainl,
iiiiiy lie hrought liy Ndiiu^ nl' tliu HliarcluililorH im
liohnlf <if nil, ikiiil lUHul imt liu in iiiunu nl' the
LMiriHirntiuii itBolf. //*.
'i. /'' fMiiiiiil LiiiliUitii iif.
The i>laintifl' huciI thu ili^fuiiil.iiit tor liiiiilx-r
fiiriiiitlifil on tiiu oci'imion of tlu! iiroviiu'iul a^ri
cnlturnl Hociuty'H iiii'i'ting at llaniilton. 'I'Ir-
(lofoncc wa«, that tho Hociety, wliiili wan iiii
ini'oriioratt'd body, wiw lialih', ami not thtMlcfen-
(lant iii'i-Monally. 'VUv loaniuil juil^'u at tlu; trial
left it to the jury to timl uiioii tho cviiU'iici'
whcthtir the ilefeiulnnt hud I'diitracted with the
(ilaintitr iiersonally, or an one of a coniiiiitti^e of
gentlemen who undertook to suiierinteud, in
either of which eventis he held him to he perHo-
nally liable ; Imt the jury were told, that if he
contraeted aw only reipreHenting or on behalf of
the corporation, he would then not be jiermi-
nally liable : -Held, that the ruling wiw correct.
Simiinoii V. Ciirr, "> (^. H. 3'2(i.
AHHuni}mit for work and labour. The iilaintitl'
put in a jiaper headed, " Memoranda of an
agreement made and entered into this '_'Hrd of
Alarch, 1854, between the direot<irs of tlu; N'ieto-
ria Bridge Company of, &c., of the tii-st part,
and J. .). (the iilaintifT) of," &e. It eoiitainecl
an agreement by the plaintitl' to do certain work
for specified priceo, which "the jiartyof thetirst
part hereby agree to pay," &c., and waH signed
ny defendant, describing himself as " Pres. V,
B.," and by the plaintitl'. It appeared that the
com]iany had been duly incorporated, and that
the plamtitt' had received t'.150 from them on
account of this work : — Held, that defendant
was not jiersonally liable. Jo/i>i.ii>ii v. Iltiiii'illuu,
13 (i. B. 211.
In conseouencc of arrangements for uniting
the (iraiul Inink Telegrajih Co. with the British
North American Association, the superintendent
of the former company, on the lOth December,
1854, wrote to its president and directors, ex-
pressing his readiness (in onler not to embarrass
the company in its operations) to cease his coii-
neetiou with it on the .Slst December, 1854, on
the company guaranteeing to him his salary for
six months from the Ist January, 1855. The
president replied, " We are in receipt of your
favour of this date, upon the subject of your
retiring from the office you now hold under us.
We will be happy to meet you in the way set
forth ; and we hereby pledge ourselves to carry
out the provisions mentioned in your behalf.
(Signed), "G. H. Cheney, president, on behalf
of myself and the directors of the 0. T. T. Co. ;"
— Held, that the president's reply amounted to
a personal guarantee. Richards, J., diss. Boyd
V. Cheney, 5 C, P. 404.
Plaintiffs sued defendants for breach of an
agreement by which defendants bound them-
selves to carry lumber for the plaintiffs from
Peterborough to Port Hope at a stipulated price.
The agreement set out, which was dated in
November, 1865, recited that defendants were
engaged in running the Port Hope, Lindsay and
Beaverton railway, and the Millbrook branch
thereof. ( Ine of the defendant* wim iirmiiU.
and the otliiT niaiia^'ing director. '\'\u. jiirvH,„
Hnked to lind whether the axreiMiiciit Wii«" m*!,
by defeiid/ints acting as ivgcntM for iiinl ilinrtun
of tlu^ I'oiiipany, of which plaintiDH ||,ii| ||,,t,,,
and having found in the nen'itivc ami aKi«.,»,|
daniagtiH in favour of plaintillM, the ccmit, ri.fiiy,|
to interfere with their verdict, as coiitniry ti)|i.
ancl eviclenee. Mr/.>iiiiii<ill il nl, \, (\„;',-i,, ,
18 C. I'. IIU.
Ilelil, that a incniber of a coiiniiittci i<
I'eNpiinsible for the salary of a piTNun ciiiiilin„i
by the committee (under a joint Htock lianldir
cliiirter,) before he became a Mt n'klicililir in t|'
bank and such muiubcr. .I/'h</("/' v. /;«/■(,„
( '. I'. (K).
I'm, lij
Certain porsouH, seven in number, ,l(f,.||,],,m
being one, were incorporated a.s tlic .Amliir,,
burgh and .St. Thomas KailwayCo., «itli |i(m|.|
among other things, to obtain a certain aniiiin'
of Htoek. \n soon as it was obtaiiuij, a iiicitii •
of the stockholders was to be called td (irmm ^
the company. These seven aetiiiL' as jmiv , ,,ii,i|
directors, passed a resolution autmiri/iii^< , „. \[
H. to retain coiiiLsel to pro.secute a suit in i hai..
eery on their behalf, and on the «aiiii' day tli'
boiir.t of directors, which had been ipri'vinu«lv
chosen by the stock holders, pas.scd a ii'siiliiti,,l|
to the same etleet. The plaintitls were tlu'rciitinn
retained, and proceedings in Chancery iii.'ttitiitiil
for the costs of which this action was limik-lit
Held, that the resolution being an iJJu.Ml a,t
and the resjionsibility arising therefriimiidt liiin'
removed by the resolution of the gemral Ijniiril I
of direction, the defendant as well iis tiic ntliers
who authori/.ed retaining the plaintitl', waslialile
personally. McDonald et al. v. Mnrhelli \] c
V. •224.
L. arranged with the Canada Ajjeiiey .\.?ji,(.ia.
tion, an Knglish company investing iiiiiiiey in
Canada, and having defendant H. a.s their mana-
ger, and defendant If. as one of their linal di-
rectors, for a loan of money, .\fter iiayinj;M|J'a
prior mortgage on the lands of 1,., and tliew-
penses, &c., the manager sent to his order a
cheque for the balance of .^89.95, Hi),'ncil liy 11,
& H. the defendants. L, having iiiado a claim
for a larger amount, brought an actieu against H.
& 11. to recover the amount he claimed toltcdiic
him :- Held, that defendants were not liiilde, as
they never received any money to the iisoiiftke
plaintitl', having no control over the inmiev
except as manivger and director of the Vnmii
Agency Association and were in lui wisu ait-
iiig as individuals on their own behalf, hut.wlelv
as ofticera of the company ; that the evidena
did not establish any privity between tiie plain-
titl' and the defendants in respect of the money
claimed, and without such privity the action
would not lie. Jlcimrd v. Loijun, 14 C. P. 'M
The plaintiff sueil defendant as director of >
bank, alleging in substance that in a report made
to the shareholders in 18ti6, and a statemeni
accompanying it, the defendant falsely and framl-
ulently misrepresented the condition of the banli,
over estimating the assets and under estimatici
the liabilities, thereby inducing defendant t«
believe it sound and to purchase stock :— Held,
upon the evidence set out in the case, 1, Thit
there was no evidence of fraud sulficient to
maintain the action — that is, of false statemenH
knowingly made by defendant with a fraudulent
<M
roa
CORPORATIONa.
(jcucy Assdiia-
iing iimiity in
:is ttiL'ir niana-
tlniii' local ili-
jriiiiyiiigiiffii
, ;inil tliffx-
-I) his onlcr a
, Hiyncil liy 11.
iiiiulu iU'Liini
inn against ll.
iiii/d to lie line
• not lialile, m
the use "f the
1' the iiKiiity
|)f the Canaili
111) wise let-
lalf, hut solely
the eviilenc*
It'll the plain-
if the money
;y the action
14 C. P. odi
director of i
|k report made
a statement
bly ami bnJ-
111 of the bank,
ler estimating
Idefeiulant t«
Itock :-HelJ,
;ase, 1, Tbt
1 aiitiicieiit to
Be statement!
I a fraudulent
tiMit. 'I'Ihi nntiiro "f tlm fraiiil ri'iiiiiri'il to
I '.Lfiiii mull a I'liftriro coimiili'i-i'd, ainl tlii' iiiittin-
,„,,• rovii'Wt'd ; -. iliat tlu' rrpurt wum nut ii
".prtni'i'ti*''"" witliiii ('. S. V. ( '. f, 44, h. I(», hci
p, to rei|iiiio it tii l>c hIkiioiI liy dofciidalit. ."i,
t ('('iitMpi'r toll fiiriklliii-i; iiitrodiiOMl toiiny fiirimce,
that JH, fur tlir tirxt Halo inacUi to any fiirniwo )
and a ciiiiiniiHNinn nf ,'i L't'iitx |)c'r tnii for all liliio
ore I'cir tin; yvixrn I MTU, 4, !>, (I, 7. that in, for livn
yuai'H from tliu Intof .laniiary, IS7.'i ; ami I uiakr
you thii «ip1(i agent for the nalu of Iduc ore for
WV'HtiM n I'lMiiiHylvaiiia:"— Hidd, thatiiroof inurtdy
rimt if tlu' HtatenioiitH wtiw falno and fraudiili'iit,
,l,.|'inihiiit wiiiild liii lialdf, althoiij^di they Wfro . , _,
iimle to tlifnto«'kliiddi'rn, for they woru iiiteiidtMl : that ( '. wast dcfeiidaiitM' ntanaKinu tiirui'tor wan
11(1 iiHi'd for imlilii.' information. I'lirbr v. .'/'•• ; niit xiithcifnt evidciicf under Iti \ let. c. '.TiH, »-
oi,in,,:v2i). H. -'7:».
Where the direi'torM of an incorjioratud eoni-
paiiV mifaiiproiiriate the fmiclit of the eoriior-
!(l,,„ n hill aj,'ailirtt them ami the eonipaiiy, in
rt'^iie'ct of ""'''' mixapproiiriation, eaiiiiot he
^UMtaiiit'd hy Kotne of the .stoekdiohlerH on lie-
|i;ilt 111 all Vxeelit the direi'tor.s ; the eomjiaiiy
niiist lit' ii'i"'*' [ilaintiUM whether the iietM ot the
iliivetor.H are void or only voidahle, and the
stinkholilent liave a right to make uoe of the
name of the eoluiiany an idaintiU's in mieh pro-
leeililigii. lldiiillliiii V DtMJiiriliiii Ctiiiiil Cu., I
Chy. I.
3. I'llll'I'l-S of.
Cm for overflowing land of the Canada Com-
iiaiiy. I'l"-' defendant jirodiieed a letter to one
S., under whom he elaimed, f'-om the iilaiutiii'H'
ax'cnt, saying that the land v 11 he sold to him
f,.rtli'emiriic)8e of erecting a.-, ■ mill, on certain
siietitieil I'lmditions - two of which were, that
tilt will slimild he in operation within twelve
mtlw, Hiiil that he should furiiiMli the eom-
fiirtliemiriiDsu <i
;; ■"' '"- iif which were, that
mill slimild he in opcr
miintlw, Hiiil that he slioul
iiiuiv, or their «ettlern, with Inniher at a reason
alileiate: Held, that this letter could not lie
cniistrued an a license to the defendant toover-
tliiw the plaiiititl's' hind to any extent necessary
fur working his mill, without clearly shewing
that the iinihahlc ert'ect of liuilding the mill and
the dam was known to and cmitem
putting up 1
Held, also,
I plateil liy the parties at the time ; Held,
tliat the iilaintitf's, as a coriioratioii, could not
Ik liiiuml with respect to such un injury as
[to shewn in this case, by any thing done liy
Itheir ordinary agents without special authority.
l('',iii/(i CoiiiiKiiiji v. /'ftlh, \) (.). H. (WJ.
Held, liicliards, t'. .F., hesitante, that the
tpresiileiit or other principal otlicer of a corpora-
Itiun taking a mortgage for and in the name uf
Itlie eiir|iiirati(iii does not act as its agent, but as
■prineipal in the exercise of its corporate powers ;
Itiiil may, therefore, make the affidavit of bona
liiiles miller ('. S. V. (.'. c 4.5, without authority
iui writing. Honk nf Tunnilo v. MrDoiujall, 15
M'. 475.
The defendants wishing to introduce an ore,
illed "blue ore," into Pennsylvania, eorres-
Kiuilcdwith the plaintift' at Pittsburg. Through
pie iibintiff's intervention an agreement was
Bade hetwecn 0. & ("o. and defendants for the
lie 111 13,000 tons, to be delivered before the
|«tiif August, 1872, with an option to (). & Co.
order any mnnber of tons, from 10,000 to
10,000, during the five years from the Ist of
rehraary, 1873, and a formal contract was sub-
'lei|ueutly executed. On the above sale being
ftffected, C, defendants' managing director, wrote
^aiiitiff that a cummission of 1,5 cents per ton
puhl be paid him on the sale, and that he
puld make him the following offer for the
Wture: "I will give you a commission of 10
10, '_'((, nf ( '.'s authority to enter into the contract
with plaintill'; hut it should have lieeii shewn
that his act was in aci'ordaiiie with the powers
conferred on him : Held, also that the )ilaintitr
was not an agent within see', 17, so as to rerpiiru
his ajipointmciit by by-lav\. Tnjilur \. Tin- ('a-
liiiiirii, /'r/irliiifi)iiiili, mill Miiniinrii /fiiihrni/ unil
Mhiiiiii I',,., •J4(\ P. '2W.
\ bank having executions against a railway
compiny in the hands of tin; slu'ritl', the secre-
tary of the couipanv, in order to avert a seizure
of a ipiaiititv iif railway iron, signed a letter
agreeing that the liank, out of moneys coming to
their hands from certain garnishee proceedings
taken by the bank against debtors of the com-
pany, might retain "asullicient amount fully
to cover all your solicitor's costs, charges, and
expenses against you or against you and us, as
between attorney and client or otherwise; as
well as the costs, charges, and expenses of your
bank, of what nature or kind soever, and after
the payment of such, in the seeond place, to
hold the surplus, if any, to apply on your execu-
tions against us." This letter was signed with-
out any authority from the board of directors of
the company, although two members of the board
were aware of it, and one of them, the vice-
president of the company, authori/ed it : Held,
that this was not such an act as the officers of
the company were authorized in the discharge
of their duties to perform ; and that, although
the bank granted the time asked for, they could
not enforce payment of the amounts stipulated
for. Till- ihiin'illini mid Purl Dunr l{. )!'. f'o.
V. The (larr li,iuk, -iO t'hy. liH).
A railway company being indebted to a bank,
the otHcera of the company arranged that the
bank should proceed to garnish certain debts
due the coniuany, the costs of which as between
attorney aud client the railway company was
to pay ; Held, that the otiicers of the company
had authority, without a resolution of the board
of directors, to enter into such an agreement, and
that the same need not be under the corporate
.seal. III.
Where a ^•ote of the ahareholdera fif an incor-
porated company had authorized the directors to
raise money on the security of the company's
lands, and one of the directoi-a afterwards, by
arrangement with the other directors, advanced
money for the use of the company, and took a
mortgage on their lands, it was lielil that a third
party, who subseijuently became the purchaser
of the mortgaged estate, could not resist the
claim of the mortgagee, on the ground that a
mortgage to a director was invalid, (hrittistreet
V. Parw Hinlraulk (hi.. 21 Chy. 229.
IV. LlAlULITV OF MeMBEKS.
In an action against a member of a joint stock
company, his admissions that he was a partner
i' '
\ '1
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1^ h
1
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■1
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hi '*
7G7
CORPORATIONS.
"Da
u" ■.
ftre sufficient to prove his liability, witliout pro-
ducing the partnership deed ; and when a com-
pany 18 formed for purposes which do not render
the drawing and accepting of bills and notes
necessary, it will bo sutiicient to establish the
liability of a partner, on bills or notes drawn or
accepted in the name of the company by their
secretary that while he was a partner the secre-
tary was in the habit of so drawing and accepting
bills, which were afterwards paid with his con-
currence and a<lmis8ion of liability. Lii- v. Jfc-
Donahl, G O. 8. 130.
On sci. fa. to render the individual nienibera
of a company formed un<ler the general act Hi
Vict. c. 191, liable for its debts :— Held, that in
the absence of any express provision in such act,
they were not so liable, and even if they were,
Quiere, whether they would not have ))een
exempted by the operation of 12 Vict. c. 10, s.
5, subs. 24. Emerxun v. FHnf, 7 C. P. 1(5 1.
See III. 2, p. 703.
V. Powers of.
Quajre, whether manufacturing new steam en-
gines for steamboats was within tlie purposes for
which defendants were incorporated. Jluiiii/foii
V. Xktgnra Jlarhonr and Dorl: Co., (5 O. S. 381.
Where a corjwration is empowered l)y statute
to enact by-laws and impose a penalty for tlieir
infraction, not exceeding a certain amount, a by-
law is bail which annexes a penalty to an ottence
but does not declare its amount. Pctcru v. The
President and Botwd of Police of' London, 2 Q.
B. 543.
Under 1 Vict. c. 30, and 7 Vict. c. Ki, the
Kingston Marine Railway Oo., may gi\e and
receive promissory notes in the course of transact-
ing their legitimate business. Kini/.ilon Marine
R. W. Co. V. (fiinn, 3 q. B. 368.
In declaring upon such notes, the plaintiffs
need not aver the consideration upon which they
were received. Ih.
The omission of the words " value received"
in a note, or the fact that a note is made pay-
able at a cei'tain time after date, affords no in-
ference that such notes were taken in violation
of the clause of the charter prohibiting the com-
pany from banking operations. //).
Held, that the plaintiff wiw not precluded from
recovering money advanced to B. for the liijui-
dation of liabilities by B. to the Niagara Harbour
and Dock Co., or from enforcing any security
foi its repayment, because that company, in such
transactions, exceeded the power conferred on it
by its charter. Cnj/lei/v. ^fc Don nell, 8 0,. B. 45-4.
The defendant's being unable to finish their
railway, and the plaintiffs desiring to have it in
operation as a feeder tr) their line, a correspon-
dence was had between the two companies, and
resolutions passe<l by the plaintiffs, and comiim-
nieated to defendants, authori7.ing an arrange-
ment by which the plaintiffs should work the
rood for a certain period and share the profits
with defendants. No formal agreement was
made, and the terms were not definitely settled,
but the plaintiffs went on and completed defen-
dants' line, and ran it for some time at a loss.
They th«U su<)d tlefendants for the work done :
Held, that they could itot recover, for uoustruct-
ing defendants' road was a matter without tl.
scope of their charter. Great Wexlcm /,' f\- ,,
V. Prenton and Berlin R. W. Co., 17 y. B. 4J;*
The exception in the last clause of 22 Vict
85, which prevents corporations, itc, "liom'
fore authorized by law tolendorlK)rrnwmiinev
from charging more than six per cent, iuteni*.
applies only to corporations created fur the i|„,
pose of lending money, or at leant oxprwlv
autliorizcd to do so, not to all who l)y the wm
ral law are allowed to lend it. Thr L'lHuhmf,
Life Ansnrance Co. v. Graham, 10 i), n. jjj] '
The defendants, a life insurance ooiniianv
were in the habit of lending money, but lUiuleit
a condition that all lM)rrowers slionhl in,i,f(
theii- lives with them for double the amount u\
the loan. Semble, that even if tlie e.xcoijtinn
above mentioned had applied to them, this would
not constitute usury. Jh. See, also, U(n\ ,.
Whitehead, 10 Chy. 446. The Curporatiuu „/
Xorth GwilUntbiiri/ v. Moore, 15 C. P. 445.
The (Jreat Western Railway sliareliolilers re-
solved in 1857, to advance £150,000 .stg., to the
Detroit and Milwaukee liailway coiiipany aiij
again, in 1858, a further sum of tlOO.OOo' sti;
The first loan M'as expressly sanctioned by
parliament, and they also had parliamentaiy
authority to use tlieir funds " by way of loan Jr
otherwise, in providing proper connections, aud
in promoting their traffic witli railways in tb i
United States." These two loans were to Lt
expended by the managing and linaucial ilirtu-
tors of the lenders. The latter ai)])lie(l to the I
plaintiffs, then being the bankers of theOreat
Western Railway Company, to advance immev
under these resolutions ; all traffic receipts of the
Detroit and Milwaukee company to be deposited
with the plaintiffs, and exciiango on the Oreat
\Vesterii Railway's London board to liegiveii
monthly to cover any deficiency. The account
was opened by the plaintiffs iis " Detroit aiid
Milwaukee railway account, (ireat U'estern
Railway," and kept distinot from the Great
Western Railway account proper. Large ad-
vances were made, and exchange drawn ; the
business was carried on for two years, and
moneys advanced by the C W. H. totheUl
M. (,'«., beyimd tae aminint of the two loans,
the result l)eing a large balance in favour of the
plaintiffs. It Wiv.s proved that of tlio two Inani
only about $700,000 was paid to tiie plaintiffs liy
exchange or traffic receipts. DitHciilties .w*,
defendants iiisi.sting that crcilit was iKJt given to
them, but either to the I). & M. Co., or to the
individual directors negotiating the anangcment,
ami the plaintiffs sued For the balance overdravni,
amounting to about $1,000,0(X). At clic trial
many objections were taken :—t]iat credit wu
not given to defendants ; that tliey could not be
bound except under seal ; and that all advance)
to the foreign company were ultra vires, as the
plaintiffs well knew. Ijcave was reserved t»
move for a nonsuit, and it was left to the jiirj- te
say (among other things) to wlioiu cri-.lit ni
given, who reaped the l)enetit of the exi>enditui«
of this money, and whether tlie plaiiitiffa hid
any notice of the loans being exceeded. The
jury found all these points in favour of tlieplait'
tiffs : -Held, that the plaintiH's as iMUikers eouid
under the special circumstances recover, althuu^
there was no evidence of a debt uiuler seal ; tiit
the objeotiou of the advances being ultra viw
169
CORPORATTONrj.
770
0IV8C
■liose credit Wiis actually pledged and to whom i tlie corpor.ite seal, was n
ijj ^.^s given ; and that there w.w evidence against the corporation.
. jjuiipoit tlio linding for the plaintill's. <!vm- Catliollc E/hkcdixiI Cor/ioi
iiierdiit
n 033; (Irt'dl Wintirn J{. 11'. Co. v. Commriruil
iinll- •' K & A. 287 ; affirmed on appeal to the
{.rivy' Council, 3 Moore I'. C. (1 N. S. -.".(o.
Uv their act of incorporation, 'Jti Vict. c. 31,
iinm Collcgu ia authorized to take, hold, and
Hiiniii
pro-
such
luUl iifit prevail untlcr the peculiar facts of the \ copal residence, aiul for the purposes of the
that it was a (piestion of fact for the jury i churcli, and taken seci.rity for renayment under
was not entitled to recover
Ihiilz V. Thf Roman
■ Ijiaiikv. dirnl Wr.stiTii H. W. Co., '2-2i.). .Sowlwich, 30 (,>. H. 2(>'J.
Held, on demurrer to a plea setting up the
absence of tlie corporate seal, that a parol agree-
ment entered into l>y " the duly authorized
agents" of an incorporated hiauranee company,
to refer to ar))itration tlie (juestion of the legal
lial)ility of said company to l)ear any portion of
the expenses of raising and rejiairing a vessel
insured iiy them and subsequently lost, was not
l)indiiig upon the company, as not being a eon-
tract relating to thejuirposes for which the com-
pany was incorjwrated. Ciilr'ni v. Tin Pror'in-
dal I iistinincv Co., 'JOC. I'. "iCi".
An insurance ccmipany was by its charter
autlu)rizcd to hold real estate for the immediate
accounnodation of the company, "or such as
shall have l)een bonA tide mortgaged to it by way
of security, or conveyed to it in satisfaction of
debts previously contracted in the course of its
dealings, or purchased ;it sale.? upon judgments
whit^h sliall have been obtained for such debts ;"
and having sold and conveyed a vessel, took
from their vendee mortgages on real estate to
secure the purchivse money :---Held, a transac-
tion within the act of ineorj)oration, the price of
the vessel being a debt existing previously to
the execution of the mortgages ; and, Semblc,
that under tliese wonls of the act it was not, as
witli banking institutions, necessary to the vali-
dity of such a mortgage that any previous in-
debtedness slumld exist. iVt'uh'ru Annitrniice Co,
V. T<u/lor, !) Chy. 47-1.
An arrangement with the plaintiflf, such as
was customary in carryinjj out objects like those
iletined in a company's incorporation act, and
as was conclusive to the attainment of those
objects, liaviiig )>een duly carried out : — Held,
that the arrangement could not afterwards be
declared to have been byyond the powers of the
company or its directors, so as to entitle the com-
pany to keep for their own use, without compen-
sation to tiie plaintiff', the whole benefit which the
arrangement had afforded the company. Il>.
M. was aware of a valuable mining location on
Lake Superior, and was regarded by other ex-
plorers in that region as entitled to it. He made
known this location to an incorporated mining
company, under an agreement that he should be
compensated for the communication, but the
mode of compensation was not deteniiined. The
conimuuication having proved valuable to the
company, it was held tliat M. was entitled to
compensation in the manner usual in such eases.
The usual motle was proved to be by receiving a
shr.rc or partnership interest in the mine when
the patent is procured : —Held, that this mode
was not ultra vires of the company or the direc-
tors. McDomilil V. Thi' Upper Canada Minimj
Co., 15 Chy. 179.
A railway or canal company cannot lease the
concern or delegate its powers for a specified
term without tlie sanctum of the legislature.
This principle was held applicable to a railway
company which had no power of taking land
compulsorily, but had other special powers and
privileges under its act of incorporation. Hinck'
hi V aiUkrslteL.; Id Chy. 212.
odiivey lands sold, given or granted to it,
videil that such land so held shall be only
as may Ix-' reciuired for the purposes of college
Imildings, &c. ; and provided, idso, that it may
awiuirc any "ther real estate, by gift, devise or
knucst, and hold the same for seven years, to
revert to the person from whom it was acciuired
if notdisiMwed of within that time. The plain-
tiff in ejectment claimed iis jissignee of a niort-
mM executed to the college in 18(i4, and assigned
by them to him in the same year ; and it was
(ilijected tliat tiiey had no power either to take or
assign 8ueh mortgage :--Held, liliat under the first
'i)art of the clause the college could not take the
land ; and if prevented from holding it by the lirst
proviso, that the crown only could take advantage
of their disability, ami they could convey tlieir
(Icfcasihlc title. * lin-liKf v. Woodi, Kj C. P. 29.
Qu:iTe, whether they could not also acquire
this land under the second proviso, the word
"gift" heing often confounded witii "grant." If
they could, they had a8signe<l to the plaintiff
wthin seven years ; and in either view, there-
fore, he was entitled to recover. Ih.
Defendant being employed by plaintiff's as
tkir locomotive and car superintendent, made
nw of their materials ami men in doi ig wor)-:
for a sewing machine manufactory, in which he
was a partner, and untnilv entered such time
aid materials as employed in the plaintiffs' ser-
flic The plaintiff's having sue<l him upon the
common counts, claiming in their particulars for
joods furnished, but not for work and labour :
-Held, that defendant was pi-ecluded by his
jDwn misconduct from setting up as ,. defence
ihat the plaintiffs under their charter could not
me 01) snch a cause of action. Xort.'n'rn Jf. IT.
[Cu. V. LM<:r, 27 Q. B. 57.
The plamtiffs supplied goods to a co-operative
»ociation, formed under 29 Vict. c. 22, on the
irder of their manager. Th ■■ ienna of purchase
fere said to he cash, but it e ppeared tliat accor-
iiijj to the course of dealing between the parties,
iforc payment the invoices were laid before a
lard raeetinc, and if found correct, the treas •■
ircr was onfered to pay. These goods were
irdered in January, and not paid for, and in
uly the plaintiffs sued : —1 leld, not a cash trans-
ition withui the 14th section of the act, and
lat the plaintiffs could not reco\'er. Semble,
lat the defence should have been specially
ileade<l, and the plea was allowed to be added.
^Ivjemkl (t at. v. The London Co-o/)erative Agno-
ition Limited, 27 Q. B. G05.
Held, that the Roman Catholic bishop of S.,
icorporated by 8 Vict. c. 82, as "The Roman
ithoUc Ejiiseopal Corporation of the Diocese of
ndwich m Canada, had no power to borrow so
to bind his successor ; and therefore that the
untiff, having lent money to such bishop,
fbich was used m the constroction of the epis-
49
i'i
i.i'f
]'• ■ •
■
^ ■
i
m
I! )': i ■!■
i
771
CORPORATIONS.
III
By acts of the Legislature of Canada ami the
State of New York respectively, a compcany wa«
incorporated in either country for tlie purpose
of constructing a suspension liridge across the
river Niagara, for railroad and other puri)oses,
with compulsory powers as to the taking of
lands, &c., and having the right to impose
tolls for the user of the bridge. The two com-
panies so incorporated joined in a lease of the
upper or railway floor of the bridge for the term
of their charters, to a railway company, to Ix; for
their exclusive use, and the use of such otlier
railway companies as the lessees might arrange
with :— Held, that such assignment was ultra
vires and void. Attormii-Gencral v. N'uKjara
Falh International Brkhje 'Co., 20 Chy. 34.
The Erie and Niagara Railway Company
had, by statute, authority to arrange for the
passage over such bridge from Canada into the
United States ; but it was alleged th.it the les-
sees refused them permission to cross the bridge.
Thereupon an information by the attorney-gen-
eral of Ontario, at the relation of The Erie and
Niagara Company, and a bill by that company,
was filed agauist the two bridge conii)anie8 and
I'leir lessees, complaining of such refusal ; and
E raying a declaration, 1, that the lease of the
ridge was ultra virea ; 2, that the Erie and
Niagara Company were entitled to the use of
the oridge on paying reasonable tolls ; and for
an injunction restraming the defendants from
preventing The Erie and Niagara Company using
the bridge. The evidence shewed that The Erie
and Niagara Company had not effected any
actual comiection with the bridge, and that it
was not clear they could do so without passing
over lands of the lessees ; and that by their
charter the American Bridge Company had the
power of making a lease to one railway company
exclusively. XJnder these circumstances, as the
damage, if any, to The Erie and Niagara Com-
pany was only prospective, and they could not
be said to have sustained any actual damage by
the refusal of the defendants to recognize their
right to use the bridge, the court, at the hearing,
dismissed their bill as against all the defendants,
and also dismissed the information as against
the American Bridge Companj^ with costs ; de-
clared the lease of t'<e bridge, as regarded the
Canadian Bridge Company void, and restrained
them from further acting tliereunder. And,
Semble, that even if The Erie and Niagara
Company had established a complete title to
relief as against the Ca. ladiau Bridge Company,
still, as this court had no authority to interfere
with the American Bridge Company, and could
only have compelled the other defendants to
permit the cars of The Erie and Niagara Com
pany to cross as far as the Canadian Bridge
Company's charter extended, i.e., to the centre
of the bridge, and was thus unable to afford any
effectual assistance, the court on this ground
also would have refused to interfere. S. C. lb.
VI. CONTBACTS BY AND WITH CORPORATIONI?.
1. Liability on Contractn not under Heal.
(a) For Work and Labour.
Where a corporation had ooutracted under seal
with the plaintiff for certain work, which was
i^rwards departed from b^ their ordrrs, with
the plaintiff's consent :— Held, that assumta,
would lie for the value of the work lUuie imj^
the substituted contract. Dads v. 11 rand !{]„
Xni'hjathm Co., (i O. 8. 59.
Assumpsit held not maintainable against t
fendants for the non-performance of a iij^.
agreement to build an engine for a steanilxiii
Hamilton v. Tlie Niaijara Harbour mid /y
Co.. 6 O. S. 381.
Kiid fty(
The trustees of a school section, beint; a m.
poration under 13 & 14 Vict. c. 58, wuru— Hel*
not liable to pay for a school house erected li 1
and accepted by them, not having emitractcd k
the erection of same under seal.— Macaulav C
J., diss. Marshall v. School Trmf (■,:■< nf tirhA
Svction No. 11, Township of Kitli'ij, 4(.'.I'. j-jj
Where work done for a corporation is suclmi
was evidently contemplated by tlieir cliarttff
and they have accepted and availei' tliemsclval
of it, they cannot refuse to pay on tlie gn,mJ
that there Was no contract under seal:- Hiljl
therefore, that the Hamilton and (!ore .MecliaJ
ics' Institute were liable to the plaintiff fcirwl
vices rendered by him as an aroliiteut iinouil
verbal agreement, in preparing plans ami suiierl
intending the erection of a hall for tlieir aocoffil
modation.— Draper, J., diss. Clark v. llamVh
and Gore Mec'ianics' hiMitnte, 12 Q. H. 178.
Defendants having called for tenders fur inalil
ing plank side- walks in December, IS.hJ, tlul
plaintiff sent in an offer, which the then mmni
passed a resolution to accept ; and several of tlj
members pressed the plaintiff to proceeii. H|
went on, but in January, the n^w otinneil rcfugf,!
to sanction the contract, an<l he then ilesist*!
and sued the corporation : — Held, that he oonll
recover the value of the work, but not the «
ages sustained from not being allowed to liiiL<i
the job. Burtlett v. The, Muuh-imUtii vf {J
herstbur;/, 14 Q. B. 152. ' '
The plaintiff sued for work done upon a nmll
in the township of Russell. h\ .June, 1851, J
resolution of the municipality was iiassed, tkatl
the road surveyor should br associateii with J f
S., one of the councilors for Russell, to receive j
tenders and ajjprove of contracts for ojieiiiiijj
the road from the boundary line of Cand)i '
and Russell to Louck's mill in Russell. Hel
plaintiff' 's tender was acce|)ted in pursuameo/j
the resolution of June, 1851, and the MiirtniJ
performed, examined, and approved of liytlfj
surveyor and 8., the councillor named in" llut I
resolution :— Held, that a contraet under fall
was unnecessary. Fetterhj v. Tin- MmmpM
of Russell and Cainbruhje, l^ Q. B. 433.
The municipal council for ISSti passed a rwj
lution that certain work should Ije done, k\
which a verbal tender was made by the \iisiS\
to the street and side walks conmiittee, aiulieT
cepte<l in writing by a majority of the eonmiilfce I
after the last meeting of the council in 18% mil
without the tender having been submittal toj
the council, or any written contract execateif
In April, 1857, some time after the plaintiff yl
commenced the work, the conueil notified li«|
not to proceed, but he went ou and coniji
and in this action brought for the price, a v
was taken for the plaintiff, with leave resemJJ
to enter a verdict for uefeiulauts, unl« 4»j
whole amount claimed could be reuuvei
id
shat assiinn^i
irk (Idiie unjf,
V. (inillll ltir,f
ble ayaiast if.
ice of a yitu
ir a st«anil«in
'hour tniil bm
111, Ijfing a fi(. ]
)8, WL'iu— Htl',
man erected (i| I
g ciintracteilij I
— Macaulay,t I
H 4c.'p.3;i|
ratuiu is siicli«|
y tlifir cliarttj
ailec' tliemselveil
y on tlie grin
ler seal :--HeR|
1(1 (tore Mcclimi
jilaiiititf f(ir»j
architect upmiti
plans and suiwl
I for their acoon-j
j'kirk V. Himilhi\
•2 Q. 15. 178.
tenders f(ir uiakJ
;nil)er, lS."i4, tkl
L the then cnuiica
ami several of tin
to proceed.
pw council refuse
1 he then dcsistHl
elil, that he coiiHJ
1)ut not the tal
alloweil t(iliiii<k[
iiicip(dilii iif .i.'ii'l
(lone upon a nmll
llv. .hmc, ISoi, >|
was passed, thtl
lissiiciateii with J. I
[{ussell, to receive!
acts for oiienitjl
line of (.'aiiilmiijtl
in Russell, Tkel
ll in i)ursnani«o(J
ind the wnrkref
[pro veil of liy tlif j
or named in tktj
iitract niulerseail
Till' .1/wnwj«iS'j1
B. 433.
m) passed jrao-j
luUl !« done, lot!
lie by the ito^t j
linmiittee, aiiiiK-l
Lof tlieoouiiniiwj
lunciliulSM,*'!
Teen submitted to j
tntract cxecuteJ.!
J the plaintiff 1*1|
lueil uotitiitl linl
laml compIet«li'i|
|hei)ricc,aveiW|
Ih leave resrredl
lants, unlea tke|
Ibc recovenJ!-
773
CORPORATIONS.
m
UM that the plaintiff could not recover.
/MHV. Town(huncilofBmnt/ord, 16 Q. B.
Lean v,
Mr-
347.
The defendants being unable to finish their
railway, and the plaintitfs desiring to have it in
noerstum as a feeder to their line, a correspon-
dence was had between the two companies, and
resolutions passed by the plaintiflfs, and commu-
nicated to defendants, authori?ing an arrange-
ment by which the plaintiflfs should work the
road for a certain period and share the profits
vith defendants. No formal agreement was
ma<le, and the terms were not detiuitely settled,
hiit tiie plaintifTs went on and completed defend-
ants' hne, and ran it for some time at a loss.
Thev then sued defendants for the money ex-
I peniled above the receipts :— Held, not recover-
able, for the agreement relied upon, being special
in its terms, was invalid for want of a corporate
leal Omit WMtern R. W. Co. v. Frexton ami
Berlin R. ir. Co., 17 Q. B. 477.
Semble, that defendants, under the circum-
itfuicer, should have been held to have accepted
the work done, if there were not the other
objection to the plaintiflfs' recovery. //*.
Sendde, also, that a valid agreement in the
terms of the resolution would not have created
t partnership between the parties, fh.
Where the plaintiff performed certain public
work under contract, not made with the munici-
Mlity, or with any of its known officers, but
aerely with persons in their individual capacity
(Bsnmiiig to act as a duly appointed committee :
"leld, that no action would lie against the cor-
iration. Sloiiflmnjli v. Mioi'injiaTiti/ of Brhjhton,
C, P. 155.
I Held, on appeal, reversing the judgment
lelow, that an action may be sustained against
icorporation for work .and labour done for and
Kepted by them, without being supported by a
Kntraet uiider the seal of the company. Pirn v.
fmmiMil Council of Ontario, 9 C. P. .304; .S'. C.
" , 30i.
[a committee of the corporation was appointed
iJuiie, 18()0, with power, among other things,
i treat with and recommend to the council an
Igineer to make the requisite surveys, &c., for
ipplying the city with water, and making ap-
iieation to the government for a site for the
lervoir. The ehainnan of this committee em-
loyed the plaintifi' to make plans which the
inimissioner of public works recjuired to see,
■d one of the aUiermen being in Quebec wrote
I the plaintiff to come down and assist in press-
; their application for a site, which he did,
ehainnan having also told him to go. The
«irt of their proceedings there was adopted
the council : — Hebl, that the plaintiff' was
titled to recover for his work, aiul the journey
|Quel)ec, though there was no contract under
il and no by law relating to the matters out
Iwhieh his claim arose. Pern/ v. The Corpor-
Biic/OHoi«(, 2.3Q. B. .391.
letendantu being a joint stock road company
•ier C. S. U. C. c. 49, contracted with the
jttntiff to build for them four additional miles,
I extensiim of the road originally contemplated,
T to pay him by the ♦oils" i.> be collected there
1 on three other miles of the road. This mf>de
Ipaymeiit was not authorizwl by the act, (sec.
1 but the plaintiff built the rofcd, the defen-
dants accepted it, and levied tolls upon it, and
after handmg them over to him for some time,
refused to allow him to receive more, or to pay
him for the work done : — Held, that they were
liable upon the common counts. Thornton v.
Sandwich Street Plank Road Co., 25 Q. B. 591.
Defendants wished to dredge their harbour,
and the plauitiff had a dredge, then in the State
of New York, which, after negotiations with the
chairman of the committee on harbour and town
property, he offered to lend to the corporation
on certain terms, one of which was that the cor-
poration should pay the cost of its transport to
Belleville. The committee reported and recom-
mended this offer to the council, and it was
adopted, and the chairman then told the plaintiff
to bring the dredge to Belleville, which he did,
at a cost of !$37.3. The committee afterwards
decided to let out the dredging by contract to
another person :^Held, that the corporation
were liable to the plaintiff for the cost of bring-
ing the dredge, although there was no contract
under seal. Brown v. The Corporatio^i of the
Town ofBelkmlle, .30 Q. B. .37.3.
The managing director of a railway corapa;\y
entered into a contract in his own name, adding,
"acting on behalf of the company," with a person
for the construction of the road, and for keeping
it in repair. Under this the contractor com-
pleted the greater portion, when the company
stopped the works, alleging that they h&a not
been aware of the terms of the contract, and
which they asserted were most extravagant in
respect of the prices agreed to be paid. On a
bill filed to enforce this contract : — Held, per
cur., Spragge, V. C, diss., that the contract did
not re(iuire the common seal to render it bind-
ing : that the company must be presumed to
have had notice of the terms and stipulations of
the contract : that the intricacy of the accounts
was such as to render this a proper case to be
disposed of by this court ; antf the company was
bound to pay for the work at the prices agreed
upon. And an enquiry was directed as to the
damage sustained by the contractor by reason of
the stopping of the works, and the loss of the
contract. Whitehead v. Btifaloand Lake Huron
R. W. Co., 7Chy. 351.
On appeal, the decree made in accordance with
the above judgment was varied so far as it
allowed damages to the contractor for not being
allowed to complete the contract. Per Robin-
son, C. J. , the contractor was entitled to be paid
a reasonable sum for damages sustained on ac-
count of the stoppages. Spragge, V. C, diss.,
and thought the only relief to which the party
Wits entitled was to be paid for what had been
done, as upon a quantum meruit. S. C. 8 Chy.
167.
See ]Vooil v. Ontario and Quebec R. W. Co., 24
e. p. .334, p. 775.
(b) Of Hiring.
The plaintiff had been appointed many years
ago, by the corporation of Toronto, weigh-master
and clerk of the fish-market. He hail been voted
each year a sum for his services during the then
current year. The municipal year began on the
23rd January. For 1847, the plaintiff had been
voted £&0 for his Balar3r. On the 30th June,
1848, the corporation having determined to fttrm
m
1 .1; ''t.
pi
;i:
775
CORPORATIONS.
Tit,
out the plaintiff's office, he was disiniased with-
out notice, and without any allowance for his
services between January and June of 1 848. The
plaintiff brought assumpsit to recover a year's
salary at the same rate as the previous year. It
was objected, among other things, that there
was no contract under the corporate seal, but : —
Held, that assumpsit would well lie ; ami that
though the plaintiff, holding his office during
pleasure, by the act of incoriioration, could not
recover the whole year's s.'vlary for 1848, still he
was entitled to his salary for 1848 to tlie time of
his dismissal, at the rate of salary voted to him
for 1847 ; and that no previous demand upon the
corporation to vote an allowance need be pi'oved.
Dempneij v. V'lty of Toronto, G Q. B. 1.
Semble, that a municipal corporaticjn may be
liable on a parol contract to hire a clerk or ser-
vant to render services in their ordinary business.
Raines v. The Credit Ilarhour Co., 1 Q. B. 174 ;
remarked on in Quiii v. T/ie School Trustees, '
Q. B. 130.
In an action of assumpsit brought by a teacher
against the school trustees appointed by the Act
9 Vict. c. 20, setting out a special agreement
to retain the plaintiff in the employment of a
teacher for one year, from, Ac, at a certain
salary, &c. ; and also in a special action on the
case, founded upon a pai-ol agreement, brought
by the teacher under the same statute, for wrong-
fully, and without cause, turning tlie plaintiff
away, and preventing him thereby from earning
hi- 'alary, it was — Held, per cur , that the declar-
ation in both cases was bad, in not averring the
agreement to have been made with the defen-
dants by their corporate seal. V"" '^'- I'l*''
School Trustees, 7 Q. B. 130.
Held, under 34 Vict. c. 48, the Act incorpor-
ating the Ontario and Quebec R. W. Co., and
the Railway Act of 18G8, tliat the defendants
were empowered to appoint an agent to nego-
tiate for and obtain municipal aid, and that for
that purpose a resolution of the board of direc-
tors, or an entry or minute in their record of pro-
ceedings would have been sufficient, without the
formality of a by-law or the seal of the com-
pany. The plaintiff' sued defendants for ser-
vices performed by him as their agent in obtain-
ing bonuses from the different municipalities
through which the defendants' railroad was to
pass, and the only evidence of liis appointment
was a letter written by one of the directoi-s,
stating that at a meeting of the board he was
directed to make arrangements with the plain-
tiff to work up the bonuses, and reijuesting
him to proceed forthwith. It was shown al.so
that the President had recognized ami aiUtpted
his services, and partially paid therefor : — Held,
that this was not sufficient pror)f of the plain-
tiff's engagement, or of the acceptance of his
services by the company ; but a new trial was
granted without costs, to enable him to supply
proper evidence if possible. Wood v. (hifario
and Quebec Jt. }V. Co., 24 C. P. 334.
(c) Leases.
A declaration in covenant stated that by in-
denture made between the plaintiffs and defen-
dants, the plaintiffs demised to defendants the
tolls authorized by law to Ihj received upon a
(er^aio turnpike rooil, for one year ; that iiefeu-
dants covenanted to pay a certain rent tlieref,,
and that by virtue of the said demise tlio lu"'
dants entered and were possessed fdr tin. » .""
llllllf
'•imiiany
iil;
so to them granted. Breach, nonpayment „ft
rent:— Held, on demurrer, that tiu' ilefumlat
were estopped from alleging the want df „ I
nion seal of the plaintiffs to the leiwc, ,,'f f'"
pleatling that they had no authority ti'i lU.],,;""
Mnnicipol Coiinril of Froiitenor, Lniinr ,m
Addinijton v. Chestnut i-t at., !) (}. H, m;.-,' ""
Helil, also, that a plea that tlie .siiid indi-nt, ^
was not signed by the plaintiffs, or by iinyaL- ..
of theirs authorized in writing, was bad. if/'
In an action against church-wardens fnr tk.
use and occupation of a house rented hy n
previous church-wardens for the roctor :— H,.))'
no objection that there was no contraet "•• '
the corporate seal of the churcli-warden.s
nnrd v. Oamble et at., 13 C. P. oC.
Although a lease by an incoiiioratei. ,,„„ ,
may be void, in consequence of tlio sanie i'la™,
been executed without the corporati! ,st al still "i
the lessee enters and hohls therenmler lie wjji
lie liable for all rents reserved therel.v ihirin,
the time he so holds ; and where an instruiii.a-
was so executed by the agent of an iiRnrpriratei
bank, under which the lessees entered and iicu
pied, but, before the expiration nf the tor
demised the buildings on tlie pieniises vll
destroyed by lire, and the lessees omjtteil I
give notice of abanilonment :— Held, that tlitr
were liable for the rent during the residue of it',
term which had since expired. Flnlmmi, ,
Elliott, 21 Chy. 325.
In such a case the property had beeuconvevt.il
by the owner to the bank to secure an indeUmif
ness, which had been fully paid by the iirntrali
of the insurance ett'ected on the buildings, ainl!
the bank continued t<j hold the property simply |
as trustee for their assignor, and refused" t» faL I
or suft'er the assignor to take, any iJimeediM I
in their name against their lessees to euNiMl
payment of the rent. The court, under tlie
circumstances, made a decree fcjr pavuitut .ii
the amount in favour of the party lienetiualh
entitled. Jh.
(d) Other Conlracf.i.
The (Jrafton Road Company, under 10 i II
^'ict. c. 93, s. 3"), may make contracts hviwiil
Tnrleji v. Grafton Jioad Co., 8 Q. H. ')'i
Assumpsit held maintainable against ild'ci-
dants for the non-performance of a special pawl
agreement with plaintiff for the supply of wr
to the Toronto baths. — Robinson, C. .1., r''-
filiie V. Oas and Water Co., 6 Q. B. 174,
A special contract for continuing to supply |
gas will not be binding on the company units j
in writing, under the corporate seal, Smilh.
The Lomlon Gas Co., 7 Chy. 112.
The plaintiff declared in assumpsit, settij
out that he had brought two actinus againitik-
fendants, the first for not giving him a cn«iij i
with cattle-guards over their road as agmd,
and the second, for an alleged injury oewwioKii
by them ; that while both actions were i)eu%
the plaintiff and defendants, by their said aitur
iicy, then duly authorized in sueli lieliiill, uitie
an a^cementin writing, setting it out, oinM j
i^-Sfi^-
I III
cut tlieretnt;
se tlic ileftii.
for the Ura
.yiutut (if tt.
'<■■ ilfffiidaii'^
ant III' acnu.
eiw, itr friju
ty to lU'iiiiit
Li'iiniij- „i,;,
H. H(i,-,.
Hiiiil iuilfiitiit.
rtiviuiyautt-
is bad. //,.
firiluus fur tit
rented by tkt
ruetiir ; -HeU
iontraet uinlr-
aniens. J/d,,,
i.
rated cdinjiauy ]
he aanie having ]
rate seal, still li
rennder he will i
thereby diirinj
! an instrmiiHii
an ineorjiiirateil I
itered and nctu- [
111 iif the tfml
liiemises weiil
sees (iinitteil ttl
Held, that tli«|
he residue of thJ
Fiiihtii.ion v.|
id been conveye.ll
!ure an indcbt'ejJ
by the iiruewlil
e buildings, ainir
pnnierty mM
refused til t,ikt, I
any prooeeiliugs I
issues to eiiliiRvl
:iiurt, uiiiW tk'l
for payuitut 'ji I
larty beiii'ticiiily
under 10 1 11 ;
litraets hy ])ml
]i. K. ",i
ayainst ilei*
[i a siiei'ial i«i)l
supply 111 wiw I
ion, I'. .1,, ill!
B. 174.
|uiiiig to supply ]
company unles j
seal. .SfflKh,
I
Isumpsit, «ttii£ ■
Iticuisiigaiustile- 1
Ig liiiii a in«)ii|;
Iroiul as ap«*i,
■ijury occisiowl
Ins were jieiiiliij
1 tlieir saiil »tw-
Lh liehall, mtle |
Titottt, oi«W'
777
CORPORATIONS.
778
the terms were, that the iilaintift' was to receive
Vi",') for all claims against the coinpaiiy — the
'oinpaiiV to pay costs, and to make the cattle-
nas8 anil complete the crossing by the 10th of
Tiilv ttl''" "'^''* ' *''^ *"'** *" '"^ withdrawn ; the
aiTsenient to be carried ont by the Messi-s. M.
(iilaintiff's attorneys) on plaintiff's account, and
M li, on behalf of the company, as soon as the
court was over (this was signed by M. K. for the
•oinpaiiv) : that in consideration of the premises,
and that the plaintiff at defendants retiuest
woulil perform said agreement on his part, du-
feiiilants iiromiaed to perf()rin on their parts :
that conliiliiig in ""•-'t' promise, he withdrew the
. itiou9 and diil all that was to be done on his
nart biit that, although defendants in p.-vrt per-
fi'irm'ance paiil ^"5 and costs, yet they <lid not
make the cattle-pass nor complete the crossing :
Held on (leiuurrer to the declaration, that it
must' be assumed from the averments that .\1. It.
hail been authurized under the defendants' cor-
oiirate seal to make the agreement ; but that no
liromise of the corporation, such as was declared
upon, could be i. iplied therefrmii : that the pro-
per ci" 'ction of the agreement was, that it
reuini. ,)roj)er legal c<n-enant l>y the company
tohiuil kliem to the terms which they had au-
thorized liiiii to accept, and that they could not
be charged as liable through him on a parol agree-
meiit to do that which they could only have
luiimd themselves under seal to perform. Donin
v.(7,'.W WeMn-n R. W. Co. 14 Q. B. 403.
A trading company entered into a written
contract, but not under its corporate seal, for
the purchase of a (juantity of barrels :~Held,
the contract being executory, that defendants,
though a trading corporation, were not liable for
refusing to accept barrels not then manufactured,
nor for refusing to allow the plaintiff to continue
to manufacture barrels according to the agree-
uient Wiwuiti' v. EiniUktllen (HI lietitiinii Co.,
IR'.'P. 379.
The magistrates in Quarter Sessions have no
power to order furniture for the court luuise, and
the county council are not liable for furniture
sii supplied. The fact that the court house was
also used as a shire hall for the sittings of the
council, and the furniture made use of by thein,
could make no difference. Cuomhs v. Muniripnl
Vumiciliif MidiUf-ti-x, 15 Q. B. .3(i7.
Declaration, that a certain vessel insured in
the Provincial Insurance Company was sunk,
and that defendant who was the agent of the
company in effecting settlements on account of
viAsels lost or damaged, in consideration that
the plaintiffs would contract with defendant as
and assuming to be the agent of the company, to
raise the vessel for ^,3, 100, the question of the
haliility to pay said sum to be referred to arbi-
tration, defendant promised the plaintiffs that he
was authorized by the company to enter into
said contract as their agent, as follows, (the eon-
ti;ut was then set out, made Ixitween the plain-
titl'sand the company, and sigiied by the defen-
dant for the company) : that the plaintiffs en*'ered
into such contract with defendant as and asjum-
ing to be the agent of the company, and raised
the vessel ; yet defendant was not authorized by
the company to make such contract, and refused
ttl pay the plaintiffs the ^3, 100, or to i-efer the
luestion of liability to pay the same to arbitra-
:tioii, by reason whereof the plaintiff's could not
uforeethe contract against the company, and
were put to expense, &c. Plea — that the plain-
tiffs were unable to enforce the contract, not be-
cause tlefendant was not authorized to cimtract,
but because the contract was by parol, and, as
the plaintiffs well knew, not under the corporate
seal of the company : — Held, on demurrer. I.
That there was no assertion in the declaration of
defendant being the agent inconsistent with the
allegation of his want of authority. 2. That
the {ilea shewed no defence, for if defendant had
been authorized as he represented, the company
could have been compelled in eipiity to affix their
seal to the contract. Ctilriii ct ol. v. Dnnilnon,
31 Q. B. 3fl(>.
Declaration by a county against a city corpor-
ation for compensation for the care and mainte-
nance by the ])laintiffs in the county gaol of
prisoners, under s. 403 and following sections of
the Municipal Act of 18(i(), alleging an agreement
made on the (ith .lune, 18()7, by which, after
deducting the amount jiaid from the administra-
tion of justice fund, the balance of the expenses
were to be paid equally by plaintiffs and defen-
dants ; that the sums payable for the food and
clothing of tiie prisoners committed to said gacd
by some competent authority in the city, dnring
the years 18(i" to 1870 inclusive, amounted to
§."),4'29 ; and though flefendants had paid part of
it and their half of the other expenses, as agreed
on, yet they had not paid the residue, &c. : — ■
Held, that the agreement was one which defen-
dants might enter into without deed. Thv Cur-
/lora/ioii of the CuKiifi/ of Wmtiroiili v. The Cor-
jionitUm of tin- City t'f HamUlon, 34 Q. B. 585.—
A. Wilson, sitting alone.
The objection that a corporation cannot be
bound unless under the corporate seal, is appli-
cable only to actions at law. Bnirnti-r v. The
CaiHuht Co., 4 Chy. 443.
It is not necessary that the seal of a building
society should be affixed to an authority to its
agent to sell ; the entry in the books of the
sficiety is sutticient for that purpose, (hborne w
Thf Fiiri)ii-r.'<' ami Meehdnicx' Ihiiltlnui Horieti/, 5
Chy. 32().
Where a municipal coq)oration contracted for
the purchase of land for a market site, and after-
wards a by-law was passed with the sanction of
the ratepayei-s, which recited the purchase but
did not name the seller, and there was no other
evidence umler the corporate seal, and possession
had not been taken : — Held, that the contract
could not be enforced by the vendor against the
corporation. Hom-k v. The Toini of nhithi/, 14
Chy. (!71.
M., being aware of a valuable mining location,
made it known to defendants, under an agree-
ment that he should be compensated. The mode
of compensation was not determined, but the
usual mode wjis found to lie by receiving
a share or partnership interest in the mine.
The agreement was not under the corporate
seal. The company received $5,500 for their
claim to the property by way of compromise,
from a director who had availed himself of the
plaintiff's communication to the directors to
obtain secretly a grant of the property to him-
self ijersonally :— Held, that tne plaintiff was
entitled to share this sum, and that the want of
a seal was no defence. MrDunalif \. The Upper
Canada Miuimj Co., 15 Chy. 179. ; attimied on
rehearing.
tl
1 . r
\ nil
r I
F, I
t
j
\
r'f
■iji.
779
CORPORATIONS.
781
■};m
A railway company being indebted to a bank,
the ottioera of the t^ninpany arranged that t)ie
Imnk shouUl proceed to garnish curtain debts
due to the company, the costs of which as lie-
tween attorney and client the railway company
was to pay : — Hehl, that the officers of the com-
pany had autlK)rity, without a resolntion of the
iMiard of directors, to enter into such an agree-
ment, and that the same need not lie under the
corporate seal. Ifnmilton anil Port Dui'cr H. \V.
Co, V. Uorc Hunk, '20 Chy. 190.
The corporation of a town appointed a com-
mittee, consisting of the reeve and two others,
to purchase 1,000 feet of hose for the use of the
water works. They called for tenders, and tlie
two plaintiffs, of whom the reeve was one, sub-
mitted a sample of hose, on which tlio other two
members of the committee gave the jdaintift's
the order. The hose was tested when it
arrived, and was the same as the sample, but it
was useless for the purpose recjuired : -Held,
that the corporation, on the evidence, more fully
set out in the ease, had not accepted the hose
absolutely, but conditionally only, to keep it if
they found it to answer : that they were not
liable for it as being bound by the conduct of the
committee, for want of an agreement under the
corporate seal ; and that such contract, being
executed, might also })e avoideil because one of
the plaintifis was a member of the committee.
Brown ct al. v. The Corporation of the Town of
Lindmy, 35 Q. B. 509.
VII. Actions itv.
The declaration, at the suit of a corporation,
named the individuals composing it, and also
described them in their corporate capacities.
The breach was in their names a.s individuals
only : — Held, a non pros, might be signed and
execution issue against them in their private
capacities. Mnrklnnd v. Dallun, Tay. 125.
A corporation may maintain assumpsit on an
executory as well as on an executed considera-
tion, where the contract is in the usual ccmrse of
business. Kimi-iton Mnrini' H. \V. Co. v. PhiU'ntu,
M. T. 3 Vict.
A suit brought by an incorporated company
will be removed, if it be shewn that difficult
questions of law will arise as to the powers con-
ferred by their act of incorporation. Cdtarai/ui
Cfmeteri/ Co. v. Burrowen, 3 L. J. 47. — C. L.
Chamb. —McLean.
Sufficiency of declaration for calls under the
statute 1 Will. IV. e. 12, incorporating tlie
plaintiffs. The Marmora Fvundrii Co. v. Mnrneii,
1 C. P. 1 ; The Marmora Foiindri/ Co. v. Bon-
ivell, III. 175 ; Tlw Marmora Found ni Co. v.
Dougall, Ih. 194.
VIII, Actions and Proceedings Aoain.st.
1. Proof of Seal
Where a witness stated that he had good
opportunities, which he described, of observing
■md knowing the seal of a cori)oration, and that
he believed the seal to be their seal, both from
the impression itself and from the signature of
the party attached to it, with whicli he was
acquainted : — Held, sufficient to go to a jury to
authenticate the seal. Doe d, Kbufn Ci,lh„p ,.
Kenned;), 5 Q. B. 577. ' ' '
Hehl, that the production of a docuuicnt witliin
the powers of tlie corporation, with the seal u
tached, is sufficient prima facie evidence of it,
proper execution. WooilhiU \. SuU'num 14(' p
205 ; Fell V. South, 24 Q. B. I OB. ' '
Some of the parties executing a deed Hg^
corporate bodies, and the witnessing tlausf wji
expressed, " In witness whereof, the''Hiiiil paitiej
hereto have hereunto set their hands ami seals '
&c., and the seals were all simple M'afcr seals •!
Held, sufficient, in the absence of evidence sliew-
in<; these not to be the proper corjjorate seals
The Ontario Salt Co. v. The Merrhaiit'.^ .Suit Co
18 Chy. 551. See, also, Hamilton v /Ji-iiii!i i't
Chy. 325.
2. By Memhem.
A stock-holder is not entitled, as a uiatter of
right, to inspect the stock-book oi' other ))onkj
of a bank. /» re Bank if U. ('. \ li(ii,i,,.]„
Dra. 55.
The court will not, although thoy liave tbe
power, grant a mandamus for the insitection of
the stock-book or other books of a bank, unless
some special grounds be disclosed to warrant it
lb.
Where the directors of an incorporated com.
pany misappropriated the funds of the corijora-
tion, a bill against them and the company, in
respect of such misappropriation, cainiot Iw m.
tained by some of the stockholders on behalf of
all except the directors ; the company must lie
made plaintitis whether the acts of the (lirectora
are void or only voidable, and the stocklioUers
have a right to make use of the name of tlio enin-
pany as lilaintitrs in such proceedings, llamiltuu
V. Jhajardins Canal Co., 1 Chy. 1.
Where by the act of incoq)oration the govern-
ment is authorized to purcha.sp the cnriwrate
estate on payment of its full value, the attoniev-
general is not a necessary party to a bill by tiie
stockholders against the directors coiii[)lainiiig
of improper conduct on the part of tlie latter iu
dealing with the corporate funds. In such case
the defendants having answered, admittinL' cer-
tain moneys to have been received i)y the direc-
tors, a motion to pay the amount into court
was refused, but the costs of the motion were
reserved. Ih.
A decree was obtained in a suit by a share-
holder of a building society, suing on behalf of
himself and all other shareholders, for the admin-
istration of the assets of the society, anil charg-
ing the directors with losses which had been
sustained ; — Held, that persons who had ceased
to be directors before the suit was conimencej
could not be made parties in the master's office,
Rolph V. The Upper Canada Biiiltlinii SorkliiAl
Chy. 275.
A suit will lie by an individual corporator com-
plaining of an illegal diversion of the funds wliiek
the corporation holds as trustee, though the
plaintiff may himself have no pecuniary interest
in the funds so alleged to have ]>een diverted;
but he must sue on beTip.lf of himself ami all other
eorjwrators. Armstrom.i v. The Church Soyif
of the Diocese of Toronto, 13 Chy. 5.52,
service
of
78l
CORPORATIONS.
782
nieiit within
the aualat-
ileiioe of it,
•(III, UV. K
deed wer^
! Hiiid partic,
s iviicl seals,"
afer seals ;-
idence shew-
pnrate seals.
nl'.^ Suit Co.,
\\ Dfiiii'ix, \2
i a matter 0!
I- other books
'. V, IMtUi-'w,
hoy have the
iusiiBctU)n of
I bank, unless
to warrant it,
rporated com-
if the corjiora-
B company, in
uaimot hi sus-
i-s oil behalf of
ipaiiy must be
f the direetors
e stockholders
mo of the com-
IgS. HllllliltuH
on the govern-
Itlu" cnqwrate
the attoniev-
a bill Ijy tiie
L'omijlaiiiiiig
\i the latter in
I a auch case
ladmittinL' cer-
by the Hircc-
|iit into cniirt
motion were
[t by a share-
L on behalf of
Ror the ailiiiiii-
Ity, ami oharg-
lich had ten
lio had ceassl
couiraenceJ
liaster's office,
Wiiiij Soekti, 11
Irporator com-
|ef mills which
though tke
Iniary interat
een diverted;
J and all other
f/iMirA &'''>
\ bill was held to lie 1»y iv corjiorator of tl
Church Society of tliu Diocese of Toronto, o
iHjhalf of himself and all other members of
society, to correct and prevent alleged brea
of trust by t conioration.
le
)li
the
alleged breaches
To such a bill
the attornoy-uciieral is not a necessary party.
n,„iltoii V. The Church Sonihj of ihr Divnut of
'£U, HChy. 123;15Chy.450.
3. Procedure.
\ writ of distringas is not the proper process
i,v which an action against, a corjioration ag-
„Late slumhl be commenced in tins province.
S*''^'- The Canada Co., Dra. 180.
A cori)i>ration aggregate is not boiUKl to appear
Held, that a debt due by >\ corporation having
its head othco in England cannot be attaclietl by
service of the attaching order upon an agent of
the conioration in Upper Oanada. Bonk of B.
?.A.y. Loujhrc!/, 2L. J. N. S. 44. -C. L. Chamb.
—Morrison.
No. 13 of the general orders, authorizing the
rcLHStrartodraw up an order to take the bill pro
coiifesso at the expiration of one month from the
service of the bill, does not apply to corporations.
Oiimler v. Commercial Bank; 4 C'hy. 230.
The order permitting the service of the bill
upon the agent of a corporation aggregate applies
only to foreign corporations having agencies
within Upper Canada. Camphell v. Tai/lor, 1
Chy. Chamb. 2.— Spragge.
Held., Spragge, V. C, dubitante, that in pro-
ceeding against a corporation to enforce obedience
to a decree or onler, it is not necessary to sue
out ft writ of distringas ; the proper mode of
proceeding is by orders nisi and absolute for a
sequestration. Attonieii-Oeiieral v. Bratitford,
IChy. Chamb. 2(5.— Chy.
V Wliere a company is virtually defunct l)efore
i' hill tiled, the proper course to effect service is to
I apply to the court for an onler therefor, other-
wise an order pro confesso cannot lie obtained.
I Fiinm V. Metropulitaii Water Co., 1 Chy.
! Chamb. 369. —Spragge.
A bill being tiled by the holder of debentures,
issued by the defendants and payable to bearer,
, to enforce payment of the debentures, the com-
jiany by answer objected that the person to
whiim the debentures were issued was a neces-
wry party to the suit, but did not name the
person :— Held, that the company must be pre-
1 suined to know who this person was : that there
fc was no presumption that the plaintiff knew him ;
[and that, the person not being named iu the
I answer, the objection could not be insisted on at
[the hearing. Woods'ule v. Tht Toronto Street
]JMiiwiCo., 14 Chy. 409.
A plaintiff cannot obtain an order pro confesso
L sgainst a corporation ex parte, under the orders
lof 1357, relating to orders pro confesso against
f corporations, unless the bill was served upon
tome of the oflicers of the company specified in
l.the order, even although the Act incorporating
jiuuh corporation makes it competent to the
plaintiti' to serve process upon a director. Cam-
eron v. Cjijier (.'ii Hilda ^arii/otion Co., 4 L. J.
N. 8. 77.— Chy. Chamb. -Taylor, Secrelari/.
A corporation cannot file an answer without
seal, except by cfmscnt. If'Udersleirr v. Wolff
Inland, Ii. W. and. Canal Co., 3 Chy. Chamb. .358.
Where a stay of proceedings was asked to
enable defendants to apply at law for a manda-
mus to coinjiel the head of the corporation to
artix the corporate seal, but it was not shewn
that the majority of tlie shareholders approved
of the answer, the application was refused with
costs. //).
The tru.stees of tue Bank of Upper <.Jana<la
were hehl necessary parties to a bill by creditors
to enforce the dtmble liability of shareholders.
Brooke v. '/'/(-■ Bank of U. ('., 17 Chy. 301.
I'arties who for many years had the chief use
of a canal, and had always resisted payment of
tolls demanded by the lessee, were held to have
such an interest as entitled them to maintain a
bill to which the attorney -general was defendant,
to have the lease declared void. Jfinekley v.
aUdernleere, lU Chy. 212.
4. Other Caxe.i.
Where a corporatiini having a debt to pay,
which it was to their advantage to discharge im-
mediately, raised money upon an accommodation
note of an individual, and applied the money to
the payment of the debt, promising to protect
the note or to repay, relief was given in this
court against the corporation upon a breach of
the promise. And if the corporation could have
been compelled to pay the debt, the person so
giving his note will be entitled to stand in the
place of the corjM)ration creditor. Burnham v.
Peterhorouijh, 8 Chy. 366.
A company incoriiorateil for the purpose of
improving the navigation of a river, is bound to
exercise its powers reasonably, so as toavoid doing
any unnecessary injury to neighbouring proprie-
tors. The court will reluctantly interfere with a
company's discretion where amongst engineers
there may be a difference of opinion ; but as it
appeared that the damage complained of by the
l>laintiff might be avoided by certain alterations
of the company's works, suggested by an emi-
nent engineer to whom the matter was referred
by the court, which alterations the company said
they would have made if suggested before suit,
the court decreed the making thereof. Moore
V. The Grand River Nar'ujution Co., 13 Chy. 560.
IX. AMAUiAM.vnoN 01 Companies.
A statute gave the bond-holders of the ColK)urg
and Peterborough liailway Company an option to
convert their bonds into stock, and enacted that
this "converted bonded stock," and any new
subscribed stock, should be preferential to the
ordinary stock, and be entitled to dividends of
eight per cent, per annum in priority to any
dividend to the ordinary shareholders. By a
subsequent act the company was authorized to
unite with another company, and it was declared,
that the two companies, and those who should
become shareholders in the new company under
I the acts relating to the Cobourg and Peterborough
! ,101 a
•\:':\ . I r
I i .:ii
.1
S!
\ M
I
i^m
11 ■■
ill
1 Jl M.
i • .t.i :■
783
CORPORATIONS.
7^1
m i
•t ;
Railway Company and un<lcr the deed of union,
Hhould cnnstituto the newconipaiiy : -Hohl, that
the union did not extinguish tlie right of the
bond-hohlera to elect. C'lii/li:!/ v. ( 'ohoiinj, Peter-
horoiii/h, mill Marmum liailway nml Miitiiii/ Co.,
14 0hy. 071.
The Act authorizing the union of two incorpo-
rated companicf) declared, that any <luud the
eompanieB executed under the act should be
valid to "all intents and purposes in the same
manner OS if incorporated in tlie act :"- Held,
that this provision enabled tlie companies to
bargain together in respect of the rights which
each had, aiul to make such arrangements as
their uni(ui rendered necessary ; but did not give
them legislative authority over the rights of other
persons. Ih.
A statute authorized two companies to unite
into one company by cither a complete or partial
union ; and either of joint or separate, or abso-
lute or limited liabilities to third parties. Tlie
companies agreed to an absolute union, and made
no provision for limiting the liability of the new
company in respect of jtast transactions of the
old companies : — Hehl, that the new company
thereby assumed all the liabilities of tlie old
company to third persons. III.
X. Dissolution.
Process was served upon A. as president of a
bank, he having been elected in .June, 18(>(), for
one year. No election of president or directors
had taken place since then, and A. in fact never
resigned his office. In Septeinlxjr, 18()(), the
bank suspended specie payments, and before
sixty days thereafter assigned their property to
trustees, and ceased to do business as a bank.
It was provided by the charter that a suspension
of specie payment for sixty days, or an excess of
the debts of the bank by three times the paid up
stock and deposits, &c., should operate as a for-
feiture of the charter, &c. : — Held, tliat the to-
tal annihilation of the bank was not contemplated
by these provisions, and it did not follow from
the loss of the charter that there must be a dis-
solution for all purposes : that some formal pro-
cess was still necessary Hually to determine and
put an end to all the functions of the corporation :
that the bank was still a corporate body, liable
to have its property sold or administered for the
satisfaction of debts, and that A. must still be
looked upon as jiresident ; and an application to
set aside the service upon him was discharged
•with costs. Brooke v. Hani: of' U. C, 4 P. R.
162.— C. L. Chamb.— A. Wilson.
XI. FoREioy Corporations.
A foreign corporation, such as a bank, cannot
sue upon notes received and disctmnted by them
in the course of banking business here, although
they may maintain money had and received
against the person for whom such notes were
discounted and to whom money was advanced
on them. Bank of Montreal v. Bethune, 4 O. S.
341. See Bank :>f B. N. A. v. Sherwood, 6 Q.
B. 213.
The plaintiffs were a company chartered by the
state 01 New York to carry on mutual insurance
in the county of Oenesee. Their charter gave
them a lien by way of mortgage on the \iv«htt^^
iiiHured, and upon the title of the insurfil tu i|,',,
land on whicii sucii property stood : llilil, tin
the coinp.iiiy, from tiie very nature and (']|,j,.,,
of its charter, wa.>< incapable of earryinir m, j.
business in this province. Uemnee Miiiimi i
Co. V. H'eMmnn, 8 y. H. 487.
Quivro, whether any foreign corpoi-atiiiii ,>n
under its foreign charter assume to larr
l)usincss here, //>.
rry „„
A foreign corporation may sue iicrc on a li,,,,,]
taken to secure the payment to tliom of prcmiiiiuj
received hy their agent in conducting an insn.
ranee business in tiiis pro\-inoe. H'li.iliinni,,,!
C'otuiti/ Mutual J UK. Cu. v. Ilendernon, (»('. 1'. 140
Action by a foreign corporation, inconMiratcil
in the United States, against residc'iits df this
province, on the common counts. I'lt'a, tlmt
defendants are subjects of this ijroviiiix', iiii'iltlni
plaiiitiH's are a foreign corporation, and t;iiii,„t
sue in this province. On demurrer ; Held, that
altlumgh tlie plaiutifl's might not nue for '^m\i
bargained and s(dd on a contract made wlmllv
in Upper Canada, they could for gooils sold aiiil
delivered ; and as in this case the plea must In
taken to ap]»ly distriljutively to each ciuise ci
action stated in the count, that tlic aijcuiiiit
stated in (!anada must be t.ikeii to liavo liueiinf
and concerning dealiii^i whicli took jplate in a
foreign country, where thu rigiit of the corimr.v
tion to be a party to such iJi-occcdinys wmldiKit
l)e denied. The Cnion Imlki liuhliir i'n. v //;/,
Imnl, (! C. P. 77.
Held, that a debt due by a foreign ooriKiratinn
to a resident of Upper Canada cannot l)e attached
by service of the order to attach upon the agent
of the corporation of this province, /.ww/v v.
Dirk-mn, (j L. J. 92.— C. L. Cham)).— Kobiusnii
A foreign corporation may sue in tliis country
on a promissory note given to tliciii here fiir
goods furnished by them to the maker. Hun
Machine Co v. Walker, 35 Q. B. 'Xi.
Review of authorities as to the riyht (if ,1
foreign corporation to contract and carry on
business here. Hi.
(Semble, that they may also, under certain dp
cumstances, maintain an action for breadi df an
executory contract entered into liere in tlieonli-
nary course of their business, lit.
Held, that the general agents in ( 'anada 4 a
foreign company must be regarded in the same
light as the general agents at the head utiicc in
the foreign country. Cawphell v. The Xulmul
Life Inii. Co., 24 C. P. 133.
XII. Miscellaneous Casks,
A member of a joint stock conipaiiy, ii»tij'
corjiorated, lending with th*! assent of the tw
pany out of the joint fund to aucither inemta
and taking from him a promissory note payaWt
to himself individually for repayment, can re-
cover on the note. Coiner \. Thum]imi,k'iS.
S. 256.
A partner in a joint stock couiimny, theiiotei
of which are suppressed by 7 Will. IV. c. 1}
having retired their notes which were in cirenli-
tion after the suppression, camiot put them into
m
COSTS. 786
MrouUtion »g»in «o »« to bind the partnership.
Bv. «T. T. 2&3Vict.
A party contributing to a mining joint stock
adventure, which does not go into oflFect, may
recover back his money as money had and re-
ceiveil ; but the court must see that the circum-
stances' gave him a just right:— Held, that in
this case no such right was shewn. Gilpin v,
Or««^7Q. B.586.
Where four parties descnbed, not by their
own names and personal description, but as a
collective ImxIv not shewn to be corporate, signed
and sealed a deed in their own names and seals
th..v were held to be individually bound. Ctillen
Tmerson, 10 C. P. 549.
Semble, that under the Interpretation Act, 31
Viot c. 1, s. 7, sub-s. 9, O, the defendants, though
a corporation, would be " persons signing" the
bill of lading, if signed by their authorized
mrent Roval Canadian Bank v. Grand Trunk
J W. Co., 23 C.l\ 225.
A writ of fi. fa. against a railway company,
which was directed to a sheriff, before he became
a director in the company, was hold properly
returnable by him, and that his becoming a direc-
tot before the return of the writ, did not invali-
date it. Smith V. Spencer, 12 0. P. 277.
The declaration represented the plaintiffs and
one C, to have individually associated themselves
aether to procure a charter as a gas company,
which they obtained, for which and other ser-
vices they had acquired a claim against the com-
pany; that they individually owned books, &c.,
relating to the company, and that they agreed
to and did surrender to defendant and one H.,
It their request, 1, their said claim; 2, the sub-
Kription hst ; 3, the books ; 4, as far as they
lawfully could their right, title, interest in, or
conttol over, the assets of the company, and the
rbarter, for all of which defendant and H. agreed
to pay the plaintiffs $3,000: — Held, declaration
good ; for the sale alleged was not of the fran-
chise and charter of the company, but of the
mere claims of the plaintiffs thereon, and their
personal rights and interests in the concern.
Miller ttal, v. Tlwrnpson, 15 C. P. 186.
Held, that a railway company does not "live
and carry on business" within the meauing of
32 VicL c. 23, s. 7, 0., at any other place than
its head ofBce, at which its business is managed.
Akm V McQiUigat, 23 C. P. 171.
COSTS.
I, By and aoainst Particular Persons.
1. By and against the Crown, 788.
3. Executors and Administrators — See £x-
icutors and Administrators.
3. Justices of the Peace — See Justices of
THi Peace.
4. Paupers —See Pauper.
5. Trustees— See Trusts and Trustees.
II, Skcwty roR Costs.
1. Who may be Security, 788.
2. When Ordered.
(a) Residents abroad and Foreigners in
this Country, 789.
CO
(b) SuUs by Xext Friend, 791.
(o) Coals of former Suit unpaid, 793.
(d) Bankruptcy and Insolvency, 794.
(e) Other Cases, 794.
3. Practice in Moving for,
(a) Time for Applying, 796.
(b) Affidavits and Papers, 796.
(c) Other Cases, 797.
4. Discharging Aj)plication, 797.
6. Putting in Security.
(a) Form and Amount of, 798.
(b) Other Matters, IQd.
6. In Appeal.
(a) Frvm County Court — >9ee County
Court.
(b) From Superior Courts — Sec Error
AND ApFEAU
III. CosT.s or THE Day.
1. Neglecting to Proceed to Trial or Hear-
ing.
(a) Rule for, 800.
(b) When Given or Reused, 800.
2. Other Cases, 803.
IV. Application for County Court Costs.
80.S.
V. Application for Full Costs.
1. Time for Applying, fdfi^.
2. Parties Resident in Different Localities,
805.
3. Reduction hy Paymetd^, 800.
4. Title to Land in Question, 80C.
5. Decisions under SI Vict. c. 34, O., 80P.
C. Other Cases. 808.
7. When there has been a Reference — S?e
Arbitration and Award.
8. In Libel and Slaiuler — See Defama-
tion.
VI. Application to Deprive Plaintiff of
Costs under 43 Euz. c. 6, 812.
VII. Several Issues.
1. Issues in Law and in Fact, 813.
2. Several Issues in Fact, 814.
VIII. Set-off of Costs.
1. Generally, 815.
2. By Attorney or Solicitor — See Attorney
AND Solicitor.
IX. Taxation of Costs.
1. Notice of Taxation, 819.
2. Costs Allowed.
(a) Counul Fee and Brief, 820.
(b) Term Fee, 821,
(c) Witness Fees and Subpainas, 821.
(d) Commission to Examine Witnesses —
See Evidence.
(e) Costs in the Cause, 822.
(f) Pleadings and Affidavits, 824.
(g) Other Matters, 824.
3. Revision of Taxati<m, 826.
E"
;',,;■; I 1
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it
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787
COSTS.
m
i i
4. CosU of Taxation anil Rfvimn, 828.
5. Other (Uimh, 828.
(5. Between Altoriiei/ nnd Client— See At-
TOKNEY ANIJ SOLICITOR.
X. UNNECEHSAItV OR VEXATIorS PbOCBED-
INOS, 82!).
XI. Mkans ok Rkcoverim) Hosts.
1. Hij Oriler ur K.ireiilimi, 830.
2. lii/ Sfayinii Proceedim/n in Sreond A ction
or Suit.
(a) In what Caaen, 832.
(b) fn Ejectment — .S'ec K.tectment.
3. lii/ Attachment —See AriACiiMENT of
THE Person.
4. Attornetjn ur Solicitor's Hill — See At-
torney AN It .Solicitor.
XII. MlSCELLANEOU.S Gases, 833.
XIII. In Particular Prooeedinus.
1. In Arbitration— See Arbitration and
Award.
2. Amendment of Hills— See Amendment
IN Egt'ITY.
3. Of Appeal.
(a) From County Court — See County
Court.
(b) From Superior Courts — See Krror
and Appeal.
(c) From Master — See Practice in
P^QUITY.
(d) From Convictions — See Sessions.
4. When Defendant held to Special Hail is
entitled to Costs— See Arrest.
5. Garnishment — See Attachment of
Debts.
ti. Jiectij'yinij, Varying or Setting Aside
heeds— See Deed.
7. 0/ Distress— See Distress.
8. Setting aside Fraudulent Conveyances —
See Fraudulent Conveyances.
9. Of Injunction — See Injunction.
10. Of Interpleader — See Interpleader.
11. Mandanms—See Mandamus.
12. Quashing By-Laws— See Municipal
CORPORATION.S.
13. Controverted Elections.
(a) Municipal — .S'ee Municipal Corpo-
rations.
(b) Parliamentary — See Parliament.
14. Of Partition — See Partition.
15. In Pleading — See Pleading at Law-
Pleading in Equity.
16. In Master's Office — See Practice in
Equity.
17. Motimis, Rules, Orders and Summonses
— See Practice at Law — Practice
IN Equity.
18. Setting aside Proceedings for Nonpay-
ment of Costs.
(a) Attachments — See Attachment of
THE Person.
(b) Ride for New Trial — See New
Trial,
10. Quieting Titles— See Quif-tino Titu,
20. Of Inquests — <SVc Coronkh.
XIV. In Particular Actions or Siits.
1. Administration Suits — See AnvtM..
thation Suits.
2. Alimony— See Hushano and Wikk.
3. On Hills or Notes — See Hii.i.s up Yy
ClIANOE AND ProMISSOUV Xoik.'
4. Slander or Libel — See Deka.matius
5. Dower — See DowER.
0. Ejectment — See PIjectment.
7. Foreclosure— See Mortciaoe.
8. Redemption and Bills to Reileem—.S'^
Mortoaue.
9. Replevin — See Replevin.
10. Specific PerJ'ormance — .SVf Spe( ini
Performance.
XV. Lien of Attorney for Costs - .SVc Ai
TORNEY AND SoLKlTOU.
XVI. (.'osTs AS Damages— .Sw Coven ANTKiiR
Title.
XVII. Costs ix Criminal (.'ask.s— .See Crimi-
nal Law.
XVIII. On Removal by Cektiohari-.SVcCee-
TIORARI.
I. By and against Particular pKHsdNs.
1. By and against the Croini.
In an action in the nature of an iiifuriiiation
filed by the attorney-general, costs will not le j
alloweil to the detendaiit against the croHii.
Regina v. Mainwaring, 5 O. S. 1)70.
The attorney-general is never made t(i \m
costs, even upon interlocutory iproceeJiiijjs.
Gibson V. Clench, 1 Chy. Chauib. 09.— Van-
Koughnot.
The rule that the crown neither claims nur
pays costs is favoured by the court as must cm-
sistent with the dignity of the crown aiui the
practice of the court ; and where the ltohii ii
made a party in consequence of the discharge of
an international duty, and out of courtesy ur
for form's sake, having no substantial uiterest
in the question at issue, and no interests have
suffered, and no loss accrued by the cidwii liw-
claiming or not appearing, the court hIU cer-
tainly not order costs to be paid to thcattarnev
general. The United States v. Demun, '1 C'k-
Chamb. 263. -VanKouglmet.
TI. Security for Costs.
1. Who may be Security.
The attorney for the plaintiff or his partner
cannot become security for costs. Mijm v. Hit-
chinso7i, 2 P. R. 380. —V. L. Chainb.-Riclianli
Held, that a practising attorney may liei
surety in an election petition, lie //anii/toN, 10
L. J. N. S. 170. -E. C— Dalton, ('. C. .(•/'-
It is irregular for a solicitor to become seturitj
for his client. Beckitt v. YVragg, 1 Chy. Ciiaiiili
5. — Spragge.
^fl'fe't^l'
loVENANT Flit
»—Set Crimi-
\K1— .SVeC'ER'
789
COSTS.
790
2. When Ovdercd.
(a) Ketidents Ahrotid mid Forei^inern In thin
('i)iiHtri/.
A military oHicer on iliity out of Canivda uikI
miiiiK iw I'liiintitr. must give sufurity. Tri/ii) v.
So must a iilaintirtfroui England, coming here
merely to atteml to tho suit, and intending to
return when it i» over. (HI/ v. l/o'lijnnii, I I'. U.
■>a\ -(', L. Chanih. Kohinaon. But hco the
next four cases.
Helil, that if the plaintitf he actually a resi-
lient of' the j)rc)vinco at tlu time of the appliea-
tion, and intend so to remain until trial or judg-
ment in the cause, security for costs ought not
to be ordered. HuiMiik v. /'ater.toii et til., 3 R
H .jftS.-C. L. ('haml).-A. Wilson.
Sdiihlci if a resident in the province were to
declare his intention of leaving for abroad at
imce, and had s(dd off his i)roperty, and made
other tireparations for his immediate dei)arturo,
with tlie nitention of residing abroad, that upon
tliene facts being shewn the party migiit bo
called upnn to give security, according to the j
general practice. //'. |
Hemble, that security will not be ordered when j
the iilaintiff intends to reside here during tho
suit. W'dder v. Hopkins, 4 1'. R. 350.— C. L.
I'hwnb.— (Iwynnc.
Wliere a plaintiff came here shortly before
commencing an action, but shewed an inten-
tion of residing here permanently, security was
refused. /''•
Where, after an order made for security,
plaintiff came within the jurisdiction, made atfi-
davit "that he is now residing in Toronto ; that
when he left Canada he intended to return, his
abience from Canada being merely temporary ;
and that he now intends to remain in roronto
until after judgment has been obtained in this
Buit by or against him ;" and uudertook not to
leave the jurisdiction without leave of the court
or a judge, or of defendant, until a reasonable
time after defendant might properly enter judg-
ment against him, an order was made discharging
the orfler for security for costs. WatHon v.
J'oMioH, 1 L. J. N. 8. 97. -C. L. Chamb.-A.
Wilson.
Quwre, as to relief iu such a case if security
I for costs were actually given, and not merely an
' order staying proceedings till security given. lb.
The plaintitr, a British subject, having resided
in the United States for several years, but never
1 taken any oath of naturalization, or exercised
[ the rights of citizenship, returned to this pro-
lyinee, ami some months afterwards filed a bill
tin this court. A motion for security for costs
Iwas refused, although several persons swore that
Lhis intention was to leave immediately on the
tdeoision of the case, which the plaintiflf denied.
Y^'^'O'H V. Mmro, 7 Chy. 106.
Held, that the mere fact of a client, who has
filied to have an attorney's bill taxed, is out
the jurisdiction, is not a sufficient ground for
1 order for security, but upon special circum-
ances lieine shewn it may be. In re A. B., an
Monty, 6 P. R. 210.— C. L. Chamb.— Dalton,
C. <t P.
MA, following Rann v. Lawless, 1 Chy.
"Tib. 333, that the fact of a co-plaintiff, resi-
dent within the jurisdiction, being on the record
would not prevent an order for security for costs
being granted. ViniWinkh' v. ('hiii>liii,',i L. .1.
N. S. 44. —Chy, Chanib. -Taylor, SicvHiiri).
Meld, that by tho provincial statute, 1(5 Vict.
('. I.")'.', the whole pniviiu't' having been set ofY
into territorial division.s, tho court is bound to
take notice of sucii sulidivisions of tho country
as that act makes, and that therefore the security
for costs should lie given, where the plaintifl' is
stated in the l>ill to be resident in Uigaud, county
of X'audreuil. MfDniiiild v. JJiniiiv, I C'hy.
Chamb. 34.— Wake.
On a motion by plaintiff to set aside a consent
to the dismissal of a bill, it appeared that thu
plaintiff resided out of the jurisdiction. The
judges' secretary ordered that security to $100
should be given before the plaintiff could pro-
ceed with his inotiiui. liidslvr v. Cochrnnc, 4 L.
J. N. S. 45. -Chy. Cham) I. Taylor, Sicretanj.
Where a suit is brought in thisciuirtto restrain
proceedings at law, the plaintiff will not bo or-
dered to give security, though resident out of the
jurisdiction ; and that, too, notwithstanding the
bill may ask for relief other than the injunction.
Manh/ v. U'illidiii.i, 1 Chy. Chamb. 48. — I'jsten.
Tho recent act, '22 Vict. e. 33, has effected a
material change in the practice of this court as
to granting or refu-siiiK security for coats. The
fact that the plaintiff' lias not any fixeil place of
a1)ode within tho province will not be sufficient
to warrant an order for that purpose where it is
shewn that ho has property within the jurisdic-
tion. W'hitev. While, 1 (^hy. Chamb. 48.— Esten.
A plaintiff who is resident out of the jurisdic-
tion will not be ordered to give security for costs,
if ho is possessed of unincumbered real estate of
sutiicient value situate within the jurisdiction.
(faiilf V. Sprnrn; '2 Chy. Chamb. 92 ; 3 L. J. N.
S. 70.— Taylor, Secretary.
The more fact of a plaintiff' being in the ser-
vice of the crown and absent from the jurisdic-
tion, is not auHicient to exempt him from giving
security ; it must be shown that he is absent
from bis domicile in the service of the crown,
Dickriisonv. Diiffill, 1 Chy.Ch imb. 108. — Spragge.
An infant out of the jurisdiction petitioning for
relief will be required to give security for costs.
Slinson v. Martin, 2 Chy. Chamb. 80. — Spragge.
Where it appears that the residence of the
plaintiff" is not known, and that there is reason
to believe he has left the country, security will
be ordered, although it does not appear by the
bill that the plaintiff is resident out of the juris-
diction, and it is not shewn positively where he is
resident. SomervUle v. Kerr, 2 Chy. Chamb.
168. — VanKoughnet.
Where, on petition against a solicitor for an
account, it was alleged, and not denied, that he
had larce sums of tho client's money in his hands,
the petitioner, though resident in a foreign coun-
try, was relieved from giving security. Re Car-
roll, 2 Chy. Chamb. 305.— Mowat.
The rule requiring security will be relaxed by
the court iu their discretion, when the circum-
stances require. lb.
Where a defendant had by answering waived
his right to security, and the plaintiff assigned
s;:;'
if^
t : I !
i m:
IJil'l,
791
COSTS.
7};
m
hia intei'Wt in the mortgage, the tubjeot nf the
Hitit, to a party raiiidont (iiit of the jurisdiction,
it wiM held that the dufondnnt wm entitled to
micurity against the new plaintitl'. Thomptnn v.
(Uttlagun, 3 t'hy. I'lmmb. 15. — Taylor, iSfxrrtnrif.
The faut that the suit wiui a forcnlonure suit,
was held not to disentitle the defendant to the
order for aeuurity against the plaintilT, although
a mortgagor, he disputing that any thing was
due, and the master heing dirnoteii to inquire
"what, if any thing, was due." /h.
The claiman* under an interpleader issue, if
out of the jurib..iction, is bound to give security.
yValker v. iVi/M, 3 Chy. Chamb. 108. -Strong.
A ^aintiflf out of the jurisdiotion, with no
certain place of abode, and having no property
in thiu province, though stating (Ui atlidavit that
Hhe was only temporarily absent, and intended
to return, was ordered to give security for costs,
there being no circunmtancca from which the
court couhf reasonably infer that the intention
to return would certainly be carried out. Grant
V. Winchenter, « P. R. 44. —Chy. ('hanib. -Ilolmc-
Hted, Hffcirr,
The court will order a plaintiff to give Bocurity
for costs if he misdescribe himself in his bill
through an im^>roller motive, or with the inten-
tion 0? misleading the defendant, even though on
the application for security the plaintiff should
furnish his true address. Waldrrtn v. Mf Wiiltfr,
6 P. R. 145.— Chy. Chamb.— Blake.
An order for security for costs can only bo
obtained upon priccipe when the jdaintiff admits
on the face of the bill that he is resident abroad,
and there is nothing in the bill qualifying such
admission. Wi/^on v. Wilson, 6 P. R. 152. —
Chy. Chamb. — Strong, on appeal from the
lloferec.
Where a bill described the plaintiff as "of
the city of Toronto," but ofterwarda contained
the following statement, "by the advice of a
physician the plaintiff has sought change of air,
and is now temporarily resident at Rochester" :
— Held, that it must be concluded that the resi-
dence was only temporary, and no order for
security should be granted, fh.
(b) Suits III) Next Frienrt.
Married iro»w«.]— Where a plaintiff' sues vitl
her brother-in-law, with whom she lives, a-s next
friend, he will not be ordered to give secuHt.y.
even though there is a doubt as to his soXvimc/.
Oardiner v. Orahain, 5 P. R. 463. — C. L. Chhrnt).
—Dalton.— C. C. .t P.
AVhen one of several co-plaintiffs is u married
woman, she must sue by next friend, who must
be a solvent person capable of answering costs.
Rann v. Lawless, 1 Chy. Chamb. 333. — Van-
Koughnet.
Where, upon a bill filed by a married woman
by her next friend, it appears that after due
enquiries the next friend la not known in the
locality of which he is described to be a resident,
and not in possession of any property there, an
order will be made for security. Van Winkk v.
Chaplin, 3 L. J. N. S. 44— Chy. Chamb,—
Taylor, Secretary.
When a bill la flUd by a next friend, if heW
not a person of substance, the ]ilniiitiir will |^
roijiiired to give sticurity. lymhmnn v. Kii^im,„i
'1 Ciiy. CLainlt. 8H.- H[,raggc.
The next friend of a married Wdinan wlm i,
co-plaiiititr with her imnband, will he roiim^
to give security if it appear that lie \^ i\ per*,,
of no known niuaiiN, and his residence not knew;
—though it npiioar that the huHbaiid Iihn a mu,
atantial interest and is not a inei-n rnriiiiil pam
to the suit. Vim Winklv v. Chiip/in, 2 ( 'liy. ( 'harni
98, —Taylor, Steretary.
A feme covert plaintiff lias a right tn chaii,:.
her next friend without notice to the former ner
friend, and without giving him security lor tin
costs already incurred. But notice to "the npiv,
site party is necessary, Itecauac the order [■
security is only given on condition of the aiit>
cedent coata of tlie opposite party \wmg seouroi,
if such a condition is doaired by him. Ilorr.,
V. Boomer, 3 Chy. Chamb. 11,— Mowat.
Held, (jualifyiiig McBoan r. Lilky, i Chy
Chamb. 247, as the decision in that o.-vao in itatw
ill the head note : that the atlidavit of a mit
friend, that he is wortli $4()0 over and alxive nil
his debts, is only primA facie proof of his suit
ciency as a next friend, and that eviileiice ai
ti> bin circumstances may lie given. Il'-i//>r v
Wiilker, 3 Cuy. Chamb. 273.— Taylor, Rfj\r».
Whore evidence contradictory to the affidavi:
was ailduced, which in the opinion of the Conn
outweighed this statement, security or a nei
next friend was ordered. / b.
The test of the solvency of a next frieml is, ;
whether ho is worth £100 over and ahnve what
will pay his just debts. If the allegation t"j
such effect is uncontradicted, or the fact eatali-
lished by evidence, it is sufficient. Stord v
Coles, 3 Chy. Chamb. 421.— Taylor, Rff^ft.
When on a motion to change a next friend "ii |
the grounds of insolvency, the next frieml's own |
cross-examination ahewed him wortli the neces-
sary amount, and no evidence to the cnntrarj-was |
adduced, the motion was refused with costs. /*.
Infants. ]-— When the Court has appointeil the
natural guardian of an infant as next friend, wl
it appears probable that no one else can be fonii'l
to act in time for the assizes, and -no impoiition
has been practised upon the Court in makinj
-uch appointment, such next friend will not k
I emoved nor will he be ordered to give secnrity,
although in destitute circumstances. Mum t.
Leslie, 3 P. R. 141.— C. L. Chamb. -Gait.
In the cose of an infant plaintiff, the court mil
not require security for costs, or remove a neit
friend because he is not a person of sulwUnce.
Re MeConnell, 3 Chy. Chamb. 4i>3.-T»ylor,
Referee.
Idiots.}— The next friend of an idiot sfcuidiiii
the same position as the next friend of an infant,
and is not required to establish his solvencyw
give security. Where, however, in the bill tie
description and residence of the next friend were
not given, the Secretary ordered an amcndmeiitto
be made within a week giving the residencejnd
description, or the defendant to be entitledto
security. Sharp v. Sharp, 2 Chy. ChamliSH
— Taylor, Secrttary.
^i:;,;
79.1
COSTS.
794
Olhtr ffuw**. 1— Where the next friend of a
plnintilT han bwonio innolvont im.l Mt the jurin-
diction, the jiropcr order to U- niikilo in. that
iirm-eetliiiBK '^ stayed until a nolvent next friend
1^ apiM)intod, or until Hucurity hcuivon. Mr-
(loay\. M'tlaiiay, 2 Chy. Chanib. 437. -Taylor,
Stcrelary.
A next friend is liable forcoets incurred while
wtinif a» such next friend, ami not for other or
pMtcogta Poole v. Pnnlf, 2 Ohy. Chanil). 4ftl».
-Taylor, Sfirtlnri/.
Where a next friend ha<l been appoint'^d who
proved to bo an infant, and a new nt x t friend
WM conieciucntly app)inted, an appli iLion to
make the now next friend liable for the coHts
incurred before hi» appointment was refused. / h.
(c) CotlK of former Suit unpaid.
The plaintifT was nonsuited in an action against
the aureties of A. Whilst thiH enit was pending
the name plaintiff sued A., who then asked for
Mcurity for costs under 29 ft 30 Vict. c. 42, h. I ;
—Held, that he was cntitleil to security. Kl/ioll
V, Pivkerton, 4 1'. R. 8«.- 1'. 1.. (Iiainb. -.1
Wilion.
Held, that the more fact of a second action
of ejectment being brought Iwjtween the same
partiei, ami for the same land, is no reason for
nnlering security, if the costa of the first action
have been paid, and the second action brought
in good faith. AniiMroiKj v. Moiilijtimern, 5 I*.
R. 461.— C. L C'hamb.— Dalton, C. C. <t P.
Held, on an applicatior. for security for costs
nnder 0. S. U. d. c. 27, s. 76, that the fact of the
costs of the former nnsuccessful actions having
been paid, is not a ground for refusing to make
an order. Chamhernv. linger, (5 P. H. 101. —
C. L Chamb. -Dalton, V. C. .C- /'.
To bring a case within the 29 ft 30 Vict. c. 42,
requiring security for costs to bo given where
another action for the same cause is pending, it
must be clearly shewn the causes of action are
identically the same, and not merely growing
nut of the same transaction. Dean v. Lnmprci/,
2 Chy. Chamb. 202.— Taylor, Secretary.
Quiere, does the act apply at all to this court,
or to a case where one action is at law and the
other in this court. Ih.
The plaintiff (the vendor) had sued at law to
recover the purchase money due under an agree-
ment for the sale of lands, but had failed, and
the coats of the action were given against him ;
the defendant (the vendee) issued a ft. fa. goods
to recover the costs, which was returned nulla
bona Afterwards the vendor filed his bill in
equity to enforce specific performance of the
contract On motion of the defendant in the
suit, the proceedings in equity were stayed till
security for the costs at law should be given.
FoUUv. Todd, 1 Chy. Chamb. 288.— Spragge.
A former suit, brought by a married woman
in her own name for redemption of lauds in
which she claimed an estate for life, under a
lease made in 1866, in which the bill had been
mamJBaed with costs, to be paid by the next
friend of the plaintiff, was considered substan-
tiaUy a decree againat the plaintiflF with costs.
until security should \w oiven for the costs of
the second suit. A Htay of properdings until the
I'.mts nf the fornuT suit wero jwiid, was refused,
thcrir b<'in){ a distinction in this rt'Mpcct between
Nuits i)V married women and Huits by pi^rsons
Hui jnriM. IMiniin \. Itriiii'ituruiiihi , 9 1.. J. N.
.S. 192. Chy. Chainb. Hcdmcstcd, //./i/w.
(■^) liankriiiilry tir.tl Insohenry.
When the plaintitr has aHsignod nil his pro-
perty for the benefit of his creditors, and sues
on their account, defendimt may ileniand security
Reid\. rieni, I ('. L. Chamb. 128.-- Hobinson.
An etiieial assignee in insolvency cannot 1)6
compelled to give security. Monrk v. Xarth-
wood, 2 I., .r. N. H. 2t(8.— C. L. Chamb.—
Draper.
Where a bill was tiled by an assij^nee in in-
solvency against B. for the indemniHcation of
the estate in respect of a claim ))y (',, which it
was alleged B. should pay, and it appeared that
the plaintilf was hiniself an insolvent : that
there were no assets whatever of tlie estate he
represented ; an<l that the suit was l)rought at
his inatig.'ition, risk, and expense, and for his
benefit : Held, that the plaintiff must give
security for costs. Mfi.toii v. Jeffrey, I Chy.
Chamb. 379. - Mowat.
The jdaintiff will be ordered to give security
where it is shewn that )ic is insolvent, and is
currying en the suit for the benefit of another
party, who seeks to escape the risk of costs.
Miison V. Jeffrey, 2 Chy. Chamb. 16. —Mowat.
(o) Other Casen.
Where defendant applied for security, and
one of the plaintiff's deposed in an affidavit that
he was resident at Kingston, where in fact he
was in gaol, the court ordered security. BaMahli:
V. Mowatt, Tay. 492.
.Security for costs may be obtained in an action
for dower. JVolnn v. Bad, 1 P. R. 264. --C. L.
Chamb. —Burns.
The real plaintiff' need not shew upon the trial
that security for costs has been given, as required
by the Division Courts Act, C. .S. U. C. c. 19, •.
154. If not given, defendant may move to sta,'
proceedings, or perhaps may plead it in bar o;
the action. Quiere, as to the meaning of that
clause in the statute. McDonald v. McDonald,
21 Q. B. 52.
An execution creditor made defendant in an
interpleader issue, may be ordered to give secu-
rity. Lorell v. Wardrojier, 4 P. R, 265.
Hchl, that the mere fact of a second action
of ejectment l^eing brought between the same
parties, and for the same land, is no reason for
ordering security, if the costs of the first ocuoii
have been paid, and the second action brought
in good faith. Armatrony v. Montyomery, 5 V.
R. 461.— C. L. Chamb.— DaUjn, C. C. d- P.
Where an assignment had been made by the
plaintiff of his interest in a suit to secure a
claim, such claim not equalling what the plaintiff
claimed in his suit, the surplna to go to the
plaintiff after the claim was paid, it was held
ud proceedings were stayed in a second suit | that the plaintiff had such a beneficial interest
' 1
IT'.
795
COSTS.
795
M'
in the suit as that no order for security could be
made. Carndl v. LWlea, '1 Chy. (Jhtunh. 493. -
Taylor, Secretarii.
On an application for security for costs, it
appeared tliat the jjlaiiitifl', though a resident of
C'anada, was in such circumstances as not to be
L'ood for the costs of the suit, should it go against
him ; that other persons were greatly interested
in tht' sul jcct matter thereof; that the plain-
tiff's success would materially benefit them ; and
that the (tefendant had already succeeded in an
ejectment suit at law in respect of the same
right on one of the grounds relied on by the bill ;
)mt there being no evidence that the plaintiff
was actually i)ut forward by the other persons
, interested to try the riglit, or that tiie suit was
not brought entirely at his own instance, security
for costs was refused. L'llfle v. Wr'ufht, Ifi
Chy. 576.
Security will not be ordered to be given where
a defendant has obtaineil f urthei- time to answer.
Arthur v. linwii, 3 Chy. (Jhamb. IlOti. -Taylor,
Hecrplari/.
3. Practice in niorinij fur.
(a) Time fur Apj^lijimj.
[By Rule of T. T. I85C., No. 23. the appli-
cation must, in ordinary cases, be made before
issue joined.]
Security granted, in an action proceeded with
by the plaintiff's attorney, in the name of the
plaintiff, for costs, l)efore issue joined, and delay
accounted for. O'Eiurne v. Oowin, 1 C. L.
f'hamb. Ifi. --Macaulay.
Security refused where defendant had pleaded,
and applied Jifter notice of trial, without account-
ing for his delay. McDadcii. O'Connors V. Dafoe,
I C. L. Cham)). 18.- Macaulay.
The defendant may, under certain circum-
stances, demand security, with a stay of pro-
ceedings, even after plea, (ienerally, he must
apply as soon as he reasonably can after know-
ledge of the fact of the plaintiff's residence
abroad. Wood v. ndlidc, I C. L. (;hamb. 130.
— -Macaulay.
■ An application made on the 23nl of January,
after issue joined, and on an affidavit sworn on
the 4th, was refused. Moniaii v. IJeUcms, 1
1*. K. 36?. —C. L. Chanib.— Robinson.
In ejectment, security for costs cannot be
obtained before appearance, as in other actions ;
and the appearance does not pit the cause at
issue, so as to prevent the application. Crowe, v.
McGuire, 3 L. J. 205. -C L. Ciiand). -Draper.
Held, that the defendant in ejectment not
having appeared could not move for security.
(r/Mllyv. rcaiErcn/, 21'. R. 184.— C. L. Chamb.
— Kicliards.
In ejectment, commtnced2()tli February, 18(il,
appearance entered 18tli March following, de-
fendant, on MIth of same month, demanded
security for costs, because plaintiff resided in
(jreat Britain, but no proceedings were after-
wanU taken, either by plaintiff or defendani,
till 28th January, 1864, when the plaintiff gave
defendant a term's notice of his intention to
proceed by serving notice of trial : — Held, that
Mi applicatiou by defendant for security after
service of the notice of trial was too Lite Fk
v.Pi/plier, 3 P. R. 309. -C L. Chamb.-i'
Wilson.
An appearance was entered on 13th Seiitenilier
1862, declaration Hied on 29th, order fur seciiri-
for costs obtained on 7th October, 1802, on ti'
ground that plaintiff had left Canad.i, nm\ ut,\t.
rescinded on iltli March, 1803, on the ltouikI ,•
his return. IMaintiff again left Canaila In Oi-,
ber, 18(i3. An application was again iiiadt -
Marcli, 1864, for security : — Held, not ton latf
there lieing nothing to shew when defemlaa
lirst had notice of plaintiff leaving in (.)etol)tr
1863, or that defendant had taken any steps n
the cause, between that date and his amtlicatior
Soiiicr.'i V. Carter, 3 P. R. 328.— C. L. ('haml).-'
Draper.
A delay in applying for security from the 2iil
July, when the interpK ader issue was delivered
until the 11th August, was held fatal. /(„•,';
V. Wardroper, 4 I'. l\. 26.5.— C. L. C'haml).-
Draper.
An aijplieation to remove the next frieiul »\
an infant plaintiff on the ground of insolvency
or to stay proceedinj^ ' till security given, must
be made promptly after declaration served,
according to the rule in ordinary cases Mnni>
V. Le<^ru; .') P. R. 141.— C. L. (Jhamb. -Oalt.
Security must be applied for bcf(«-e the time
for answering has expired. timilh v. /),i./
2 Chy. Chamb. 4.56.— Taylor, Secreturit.
The filing of an answer is a waiver of any
cliiim for security. / h.
The application may be made after the exi)irv
of the time for answering. Ganmn v. Finch \
Chy. Chamb. 296.— Taylor, Heferec.
(b) Affidavits and Papers.
Where the plaintiff has left the province, the
affidavit should state that he has beonme a sta-
tionary resident abroad. Mickl'-j'ilni v. Hiilm,
Tay. 39.
The affidavit must state with certainty that
the plaintiff is not resident within the jurisdic-
tion. Jieddeii v. McXah, 4 0. S. 136.
Semble, per Robinson, C. J., that, on the
authority of Dowling v. Harman, 6 M. & W. Lfl,
an affidavit that deponent is informed and be-
lieves that pl.aintiff resides abroad, is sutiicient.
Monjan v. Helkmn, I P. R. 363.
But held not, Ity Richards, J., on the autho
rity of Joynes ". Collinson, 2 D. & L 449. }^'M
V. Prorincial Innurance Co., 2 P. H. 331.
On making this application it must be shewn
at what stage the proceeilings are. Tormw v.
Croxx, 2 P. K. 55.— C. L. Cham)). -Burns. But
see ManeiUfj v. IJayn, 1 C. L. Chamb. 2iS.
— Burns.
The state of the cause should l)e shewn on
affidavit ; but, to supply a defect in this resjiei"
a judge may in his (tiscretion look at tlie iwris
of the court. JIulf. v. lirigham, 5 1'. K. 4(>4.-
C. L. Chamb.— Dalton, C. C. <6 /'.
An order for security can only be obtained on
pra'cipe when the plaintiff ailmits on the face of
waiver of anv
797
COSTS.
798
the bill that he is resident abroad, and there is
nnfhina in the bill qualifying such admission.
?K V. Wihon, 10 L. J. N. S. 173.- Cby.
fhamb.— Strong, on appeal from the Referee.
Where a bill described the plaintiff as of the
citv of Toronto, but stated that l>y the advice of
•i physician he had sought ch:inge of air, and
wM then temporarily resident at Rochester,
it was held that an order for security could
not properly be granted on priecipe. /I,.
A certificate of the state of the cause is only
necessary where the application for security is
made before answer filed. O rant v. Winclu'^lei; «
p K 44.— Chy. Chamb.— Holmested, Usferee.
(c) Other Ganrti.
Defendant's attorney entering common bail,
is a good appearance to sustain a motion for
security. Orace v. Mehjhnt), Dra. 187.
Where a defendant obtains an order for secu-
rity it is not necessary to tile afbdavits shewing
that the order has been complied with before the
bill is noted pro confesso. Bolster <,'. Cochrane,
2 Chy. Chamb. 327. — Mowat.on appeal from the
Secretary.
Where defendants took separate orders for
security, and the plaintiff obtained an ex parte
order giving him liberty to pay $400 into court,
instead of tiling security by bond, the money so
paid iu was held to be security for all defen-
dants, though the order recited one only of the
orders for security. Jl>.
When security is onlered to be perfected
within a certain time, or the bill be dismissed,
,:ui order to dismiss may be granted ex parte on
a certificate tliat no fjoud for security has l)eeu
filed. McUtrrol v. McCarrol, 2 Clliy. ('hanib.
380.— Taylor, Stcretari/.
4. Dischanjhuj Application.
The subsequent acquisition of property is no
ground for rescinding an order for security.
Runmi; v. Lenritt, Hi-aiiine v. Trowhritlije, G P.
E.70.-O. L. Chamb. -Dalton, C. (.'. <t /'.
Where a plaintiff, who, when bill filed, was
out of the jurisdiction, and had been ordered •^o
give security, afterwards returned, but it
appeared that he had no business ai I ;ii uilen-
tiun of entering into any, no t! icd phuit; of
abode, no liouse and no family -.r ti'.' ' i bind
bim to the province; and the i j r: 'I'fts of
opinion that the return of the plamtiii v-jia
merely to get rid of the order for stcu." ty, the
court declined to rescind it. Mamh v. tteartl,
1 Ciiy. Chamb. 390.— VanKougbnet.
Where a plaintiff, who has been on'ered to
j give security, returns within the jurisuiction to
reside permanently, the order will be discharged.
[Ikmy V. Smith, I Chy, Chamb. 392.— Van -
Koughnet.
' Tiie papers and aftidavits v.>.ed on a motion to
«t aside a Iwnd for security ior costs of appeal
Nrom the Court of Chancery, should be entitle(l
1 in that court. Denison v. JJenison, 4 L. J. N. 8.
I 45. -Chy. Chft.iib. —Taylor, Secretani.
Where plaintiffH 'yho reside out of the jnrisdio-
ition paid a ccrtaLi sum into court in H'^u of secu-
rity, an application to have this money paid out to
them was refused, although a decree for specific
performance had been made in their favour, the
suit not being rinally tei-minated. Luther v.
Ward, 2 Chy. Chamb. 175.— Taylor, Secretarij.
The fact that defendant's solit itor kr w that
the plaintiffs liad binds in the province i.hen he
took out the order for security, was held a good
ground of ol)jection to the order, (ian.ion v.
Finch, 3 Chy. Clianib. 20(). -Taylor, Referee.
An olijection that the I'npy -order served was
not endorsed witli the r"'ue and place of busi-
ness of the solicitor serving it was overruled, it
not being shewn to have been the first proceed-
ing taken by him. / h.
On the plaintiff shewing he had lands in the
province worth .?4000, an order for security
obtained on priesipe was set aside, and the order
being also irregular in form, it was set aside with
costs. / h.
A jdaintiff who bad been for several years and
was at tlie time of the tiling of the liill, resident
in the United States, described herself in her
bill as of the township of Bertie, in the province
of Ontario. Uniler tliese circumstances tlie
court refused to discharge an order for security,
although tlie plaintiff' had returned to the juris-
diction and stated that it was her intention to
reside there for the rest of her life. Waldron v.
McWalt>-r, (5 1'. R. 145. -Chy. Chamb. Blake.
A i)laintiff resident abroad will not be released
froTU giving secni-ity for costs, unless he shew
that he has property to the value of .$400 within
the jurisdiction of the court and available in exe-
cution. Leasehold property may be sufficient.
lliijijinx v. Mannimj, (5 P. R. 147. — Chy. Chamb.
— Strong, oil appeal from the Referee.
The plaintiff" ha<l property within the jurisdic-
tion, consisting of a (nie-sixth iiiterest (nominally
worth §2, ()()()) III lands sul)ject to a lease made to
the defendants by liie plaintiff's ancestor, the
validity of which lease wa.s in question in the
suit. The lease was for twenty-one years, and
gave the defendants an option to purchase ; under
its terms no rent or taxes were to lie paid until
the title had been (juieted under the Act for
Quieting Titles, or a certificate was refused ; iu
llie latter event the defendants were to accept
•a: title ov give up the term. Proceedings for
.1 A^iig the title had been instituted, but were
still }ieiidiiig. The plaint)t1"'s interest in this
property was held insufbcient to ent'^le liiin to
the discliarge of an order fur securi'.' . Il>.
Nature of the property with'Mthf 'urisdiction
necessary to discharge an ot ■• asidered.
Wiliton v. Wilton, (i P. R. 152.-Cliy. Chamb.—
Strong, on appeal from the Referee.
See Watson v. Yonton, I L, .1. N. S. <>7, p. 789.
5. Piiiti'-., i.: Seen)!'!/.
(a) ronii a,""' Ain^'iiiit of.
eiidant, .i"'or ilea, o'ltaiiied an order to
A(l.
stay pr.jcee '.ing' 'iitil sec.Hty given for costs
wiis yiveii \'\ bi'ii, and tlio plaintiff delivered
him a !>o' 1 for .■ ui;h secirity, and at the saute
time gj'.ve iritieo ; trio , and defendant signed
an agr(,eiii"ii*'. tc wlinif (ocuments at the ti>'al,
bi'.t aft'ir ', M ;s rctuH' ,c the bond, and gave
4
y'\
I'jAJ;," I ';iW'J!;;w«.f'' ?!jr
799
COSTS.
notice that he would move to aet aside plaintiff's
Erocftedings if he went to triiil. The plaintiff,
owever, tried his cause : — Held, that defendant
had waived any irregularity or insufficiency in
the boud. Doe d. Leonard v. Myers, 2 Q. B. 382.
— P. C. — Macaulay.
Held, that it is for the plaintiff's convenience
to submit the name of the proposed surety to
the opposite party before filing the bond, as he
may risk the surety not being successfully
objected to by the defendant, and it is not neces-
sary that the surety should be first approved by
defendant's solicitor or the registrar, nor is a
plaintiff bound to give more than one surety
unless he alone is insufficient. Beaton v. Boomer,
1 L. J. N. S. 108.— Chy. Ohamb. — VanKoughnet.
Held, also, that that the boud should contain
the condition, to the effect, that upon the surety
(and not the plaintiff) paying the costs, the
obligation should be void. Ih.
The order for security should name the sum
for which the bond for security is to be given.
Ganson v. Finch, 3 Chy. Chamb. 29C.— Taylor,
Referee.
A party opposing the allowance of a surety's
bond for security for the costs of an appeal, may
read affidavits in opposition to the surety's affi-
davit of justification. Campbell v. Royal Cana-
dian Bank, 9 L. J. N. S. 160.— Chy. Chamb.—
Holmested, Referee.
An application for leave to pay into court $400
OS security for costs of an appeal from a certifi-
cate of title under the Quieting Titles Act hav-
ing been granted by the referee ex parte, and it
not having been brought to his notice that the
appeal was as to two separate parcels of land,
one claimed by a husband and wife and the
other by the husband alone ; it was held that
the order was bad, as these facts should have
been made known to the referee and the order
under such circumstances made upon notice.
Re Howland, 4 Chy. Chamb. 6.— Strong.
It is no objection to the bond that there is no
affidavit of execution annexed. Donelly v. Jones,
4 Chy. Chamb. 48.— Taylor, Referee.
Neither is an affida\nt of justification neces-
sary until the solvency of the surety is ques-
tioned. / b.
In the case of Iwnds for carrying a case to the
Court of Appeal, an affidavit of justification is
necessary under the order of Court of Error and
Appeal, No. 8. / b.
A bond for security for costs need not be by
two sureties unless the defendant, before the
bond is prepared, gives notice that he requires
two. / 6.
(b) Other Afafters.
A defendant, having applied for security for
costs, does not waive his application by pleailing
in abatement before the rule is returnable.
Jfastinys v. Champion et at, 6 O. S. 29.
Held, that where a summons for security for
costs, with a stay of proceedings, was obtained,
followed by an order, also containing a stay of
proceedings, the defendant has the same number
of days after security given in which to plead
that he had at the time the proceeding! wet*
stayed by the summons. Ryley v. Parmtnu, o
L. J. N, S. 268.— C. L. Chamb.— Draper.
On an application for liberty to sue t pon tL
bond given to secure the costs of an apnai
against a decree of this court : — Held, that^
party moving must shew a demand from aji
refusal of the costs by, the sureties named b
the bond. Stokes v. Cryaler, 1 Chy. Chamb. li
— Esten.
On an application b3r defendant for leave •
sue on the bond given in this case for securih
for costs, the plamtiff being resident out of fc
jurisdiction : — Held, that the decree must l«
produced, to shew that the defendants weti
ordered to receive their costs. Roaf v Toank-
1 Chy. Chamb. 14.— Spragge. '^ '
When plaintiffs, who were residtnts o' ♦
the jurisdiction, had paid a certain gum ;,u
court in lieu of security for costs, an applicatioj
to have this money paid out to them was refused,
although a decree tor specific performance haii
been made in their favour, the suit not beiiii
finally terminated. Luther v. Ward, 2 Chj
Chamb. 175. — Taylor, Secretary.
On an application to limit the time for puttiiii;
in security for costs, a plaintiff was allowed the
same length of time as she would have W- ,
answering the bill, if she had been n ' -f. ,
such time to date from the applica* , , lit
the time. Or ant v. Wincliestei; 6 P, K. J • S
9 L. J. N. S. 193.— Chy. Chamb -Holmtatc
Referee.
Ill iJOSTS OF THE DaY.
1. Neglecting to Proceed to Trial or Htariiiji.
(ft) Rule for.
'I'he rul( for costs of the day for not proceed-
ing to tri.il, is absolute in the first instaace. j
ChisholiU V. Simpson, Dra. 2.
Held-:. Under sec. 223, C. L P. Act, C.S.
U. C, c. 'z?. that the rule should be drawn up I
in theprinciju! office at Toronto; 2. That deputy '
clerks of th e crow ;' have no power, under tie
120th rule c f practice, to issue rules for ««a
of the day. iKAiVe v. Shire, 7 L. J. 206. -C. L
Chamb. — Bun*^^
Per McLean, C. J., and Wilsou, J., under rule
of court No. 120, such rule may issue iu vaa-
tion, at any time after the assizes for whicii
notice was given. Per Hagarty, J. , semble, tkt
the rule of court was not intended to allovjuii
a rule to be obtained sooner than by the jireviou
practice, but to give it either in the term Mor-
mg the assizes or in any subsequent rtcitioii
Adshead v. Upton et al„ 22 Q. B. 429.
(b) Wheti given or refuted.
Costa allowed for not proceeding to Me»
ment of damages pursuant to notice, to
v. Cronther, Tay. 18C ; King's College v. J/a»ic,
^Q. B. 94.— P. C— Jones.
The court refused to order a pl-ir.tiff top)
to (lefendant's executors the co-^cs of not gang
to trial pursuant to notice, 'foni* v. SiiM
Tay. 299.
i
801
COSTS.
802
>eding» were
Parmenttr, i
•raper.
sue tpon tli^
of an appo;
[eld, that tin
md from, mj
;ies named E
y. Chamb. U
t for leave v
e for securiij
jnt out of fc
icree must Ik
fendanta wers
rt/ V. '/'opjiin.;,
Midfcnts (V »
■tain sum ,.u
, an applicatioj
sm was refused,
srformance bii
suit not belli
Ward, 2 Chj,
time for pnttiii{j
vas allowed the
Id have he" <
sen n ',.^';.' ,. -^
)lica*', .lii,
I P, K. J ; S
lb — Holmcatc ,
Day.
till or Iharkg.
for not proceeJ-
first iustauce.
L. r. Act, C.S. I
lid be drawn up
2. That deputy '
)wer, under the
rules for costa
J. 206, -C.L
u, J., under rule
V issue in vjo-
Bsizes foi wbicii
1 J., semble,tlat
(ed to allov iuch
ibytheprerioui
Ithe term follow
Iquent vacition.
■^, 429.
'uwd.
pding to am-
1 notice, ftw
^Uege v. *>(«'.
Ipl-ir.flfftoW
-csof not going
l)rm V. RM
i
Colts were allowed to a defendant who had
accepted short notice, and the plaintiff did not
Timceed to trial pursuant thereto. Harris v.
&««,3 0.S.142.
Where the plaintiff having ^ven notice of
trial, did not enter his record in tune, but defen-
dant notwathstaiiding, agreed to go to trial if
he were ready, and after having detained the
nlaintiff's witnesses more than a week, at last
determined not to go to trial, he was refused the
costs of the day. I>oe d. Crawford v. Copple-
dike, 4 0. S. 0.
Where a cause was put to the foot of the
docket with defendants^ consent, and was not
tried costs of the day were refused. Bank of
U. C. V. Cowrt et al., 4 O. S. 324.
Where the plaintiff's attorney sent notice of
countermand to his agent in town, but too late
for service, and the defendants witnesses
attended for the trial :— Held, that their expenses
were rightly allowed in the costs of the day.
Spafford v Buchanan, 4 0. S. 325.
Defendant is entitled to costs where the
nlaiutiff does not enter his cause on the com-
mission day, although he offers to enter it subse-
iiuently, which the defendant refuses to allow.
h'm\. Barnhart, 5 0. S. 453.
Costs were refused, where after notice of trial
defendant pleaded de novo, and the plaintiff did
not proceed to trial, the court considering a new
notice necessary. McMillan v. Fenjitsmn, M.
T. 2 Vict.
Wiere no notice of trial had been given, but
the cause was entered after the commission day
by consent, and the plaiutifl' did not afterwards
proceed to trial :— Held, that the defendant was
entitled to costs uf the day. Tevhroeck v. Cok,
1 Q. B. 401.— P. C— McLean.
In ejectment, where the jury haviivg been
sworn were discharged on defendant objecting
that the jurata was defective, the defendant
was not allowed costs of the day. Dov d. Crooks
ft iix. V. Cumm'mijs, 2 Q. B. 380. — P. C. —
Macaulay.
^^^lf>l ' ., .use in tho absence of plaintiff's
couni .'1 rj* V. ■'• '- out, and afterwards on his
applicat/o . 'l^.l;t A, and then leave obtained to
add V 'das, ph'' ''-'^ cause at the close of the
tt's'. "s^rot tried, a rule by defendant for
iSS'if ,\t I, .fwas sot aside. Scott v. Cronth-
hitue,6M.u '^O.—C. L. Chamb.— Richards.
Where a caibe "oeiu^ called on for trial, counsel
for plaintift stiiiuo lie is not ready, and counsel
for defendaii' states he is ready, and the cause
is stnick out tf the docket, defendant is entitled
to his costfi of .'he day. White et al v. Shire, 7
L J. 206 —0. U Chamb.— Bums.
After the jury had been sworn, it appeared
that i).v notice to examine defendant had been
scrioi too kte, and the plaintiff having no evi-
dence, was unable to go on. The judge dismis-
sec the jury, tfilling the plaintiff's attorney that
V:« y mirbt be called together when convenient,
at any ti". , ii.-ui>j the assizes, and the case
tJ..., i'.'ie plumtirf was afterwards ready to
i (jo on, but defenfiant's attorney refused to allow
, the c& ft t> be tsiien out of its order, and it was
' ct tried :— Keld, that defendant could not
move for judgmeut as in case of uoiuuit ; but
61
as the plaintiff's laches had remiered it necessary
to dismiss the jury, the rule was discluirged
without costs. Taylor v. Smith, 2 P. R. 213.—
P. C— Richards.
No costs of the day for not proceeding to trial
pursuant to notice in an interpleader suit will be
allowed until the termination of the proceedings.
Salter v. McLeod, 10 L. J. 299.— C. L. Chamb.
— Richards.
In ejectment against U. and H,, after notice
of trial given a summons was obtained to allow
U. to defend as landlord in lieu of H., and an
order to that effect was maile on the commission
day of the assizes, 13th of April. The plaintiff,
in consequence, did not enter his record, and
on the 27th, during the assizes, defendant's
attorney (who had made no amendment as
allowed by his order) took out a rule for costa of
the day on the ordinary afhdavit, that the
plaintiff had not proceeded to trial pursuant to
notice nor countermanded it : — Held, that such
rule must be set aside with costs, for the plain-
tiff under the circumstances was not bound to
go to trial in pursuance of hia notice. Per
McLean, C J. — Such rule was irregular, for as
the judge at nisi prius might have allowed the
record to be entered at any time during tho
assizes, there could be no default until they were
over. Aihhead v. Upton et al, 22 Q. B. 429.
Wliere, upon a cause lieing called on for trial,
counsel for plaintiff states he is not ready, and
counsel for defendant, though present in court,
does not insist upon having the cause struck out
or a nonsuit entered, in consequence wh 'reof
the cause is passed over, defendant is not entitled
to costs of the day. Vanluvan v. Tolan, 8 L. J.
270. — C Ij. Cliaiul). — Morrison, Burns.
Where defendant's counsel was reaily at the
assizes, and the plaintiff 's counsel not being pre-
pared, the cause was struck out ; — Held, that
defendants were not entitled to costs for not
proceeding to trial pursuant to notice, but their
proper course was to have insisted upon a non-
suit. Crofts V. McMaster, 3 P. R. 121.— C. L.
Chamb. — Wilson.
Defendant obtained a judge's order: "That
the trial of this cause be put off to the next
gpring assizes for York, and that the record now
entered for trial be withdrawn, and that said
trial be so put off on payment of costs. " The
costs were taxe<l, but defendant refused to pay
them. The i-ecord \/as not withdrawn :— Held,
that as the record was not withdrawn, and was
a remauet, the order F^hould bo treated as condi-
tional, and that defendant could not Iks com-
pelled to pay the costs; Imt a summons to
rescind the order was made absolute. Breija v.
Hodijson, 4 P. R. 47. - C. L. Chamb. —A. Wilson.
Held, that a "reasonable time" need not be
given in which to pay the costs of the day, &c. ,
after taxation, but that the order, &c., may be
made a rule of court, &c., the day after taxa-
tion. SmUh V. Cronk, 9 L. J. N. S. 237.— P. C.
— A. Wilson.
Where plaintiff sets down a cause for tho
examination of witnesses, and serves notice
thereof on the other side, but fails to proceed
with tho examination, this will, not entitle
defendant to costs of the day : his proper course
is to examine his own witnesses, as thereby the
plaintiff would be excluded from going into
■1 ■•;
m
I- ,j
: !,,i
WWUT
COSTS.
804
evidence unl'^ss by leave of the court. Wallace
V. McKay, 1 Chy. Chmnb. 67.— VanKoughnet.
A cause waa set down for the examination of
witnesses, and when called on the plaintiff was
not prepared to proceed : — Held, overruling
Wallace v. McKay, 1 Chy. Chamb. 67, that the
defendant was entitled to have the case struck
out of the paper, with the costs of the day.
Cobourg ana Peterborough Railway v. Covert, 7
Chy 4)1.
An application for costs of not proceeding to
hearing according to notice will not be granted
ex parte. The practice discussed. Armour v.
Noble, 3 Chy. Chamb. 90, considered. Jardine
V. Hope, 3 Chy. Chamb. 197.— Taylor, lief tree.
• The master will proceed upon his warrant,
though the order of reference be obtained ex
parte and be not served, s« long as the warrant
IS not moved against. Re McDonnell, 4 Chy,
Chamb. 69.— Boyd, Mauler.
As to when costs of the day will be granted. Ih.
2. 0th'"- (7asea.
'nry are costs in the
•'•I- W.'atehead v.
The costs of a speci.
cause, and not costs of
Brown, 2 0. S. 245.
The plaintiff had a verdic* r.ll the issues,
snbject to a demurrer ; the den.ai . . was decided
in favour of the defendant ; the plaintiff had
leave to amend on payment of costs : — Held, not
entitled to the costs of the day at nisi prius, not
having succeeded on any of the issues. Bank
of B. N. A. V. Ahiky, 1 C. L. Chamb. 187.—
Macaulay.
Held, that 29 & 30 Vict. c. 42, s. 1, does not
refer to costs of the day in the same suit, and con-
sequently proceedings cannot be stayed in a suit
in which costs of the day have not been paid.
Held, nevertheless, that this can be done on the
ground of abuse of the process of the court,
where the proceedings are vexatious. Xkholson
v. Conlson, 6 P. R. 05. — C. L. Chamb. — Dalton,
C. C. <i! P.— Gait.
Held, that a judgment purchased by defend-
ant from a third party cannot be set off against
the costs of the day, given to the plaintiff upon
an application to postijone the trial, secured by
the personal undertaking of the defendants
attorney to pay these costs, and upon which the
plaintiff's attorney has a hen. Bennett v. Treyent,
6 P. R. 171.— C. L. Chamb.— G Wynne.
Held, that the costs of a chamber application
to stay proceedings until term in a superior
court case tried at thej county court under the
Law Reform Act 1868, are taxable under a rule
for a new trial upon payment of costs, the
county court judge having refused to stay the
proceedings. Merchants Bank v. Ross, 6 P. R.
214.— Dalton, C. C. <t P.
IV. Application for County Court Costs.
Under 13 & 14 Vict. c. 53, s. 78, in a case
brought in this court, and a verdict rendered
within the Division Court jurisdiction, the judge
had no power to order County Court costs.
Cameron v. Campbell, 11 Q. B. 159.
Where plaintiff in good faith sues in a County
Court, and had reasonable grounds for supposing
that he would recover more than he could re
cover in the Division Court, the judge may pro!
perly certify for County Court costs. DonnM
V. Fletcher, 8 L. J. 109.— 0. C— Mackenzie,
If one of the judges of the Superior Courti
would grant a certiorari by reaaon of difficul>
questions of law, to remove the cause if com'
menced in a Division Court, it is proper for the
judge of the County Court to certify for County
Court costs. Patterson v. Snook, 8 L. J. loo.i
C. C. — Mackenzie. '~
Where the verdict exceeds $60, and a certifi.
cate for full costs is refused, tlie master has still
power to enquire whetlier a Division Court Lad
jurisdiction, and to tax County Court costs. In
this case the action was for use and occupation
the plaintiff recovered $100, and the mMtir
taxed County Court costs. The learned jniht
who tried the case would have certiKed for such
costs if he had had authority to do so, and lio
therefore refused to interfere. Harold v Skw
art, 2 L. J. N. S. 245.— C. L. Chamb. -Draper.
The proceedings here with regard to writs of
error to County Courts, must be governed h\
the old practice in England. The plaintiff in
the County Court, recovered $5 on a declaration
containing counts on the warranty of a horse for
deceit, and the common counts. No certilicate
WS3 granted, and judgment was entered for
defendant for his costs of defence as between
attorney and client, less the $5 damages. The
plaintiff removed the judmient by writ of error,
contending that under the Statute of Ontario'
31 Vic. c. 24 s. 2, sub-s. 4, he was entitled t('i
Division Court costs. The defendant obtaiiieil
a rule calling upon the plaintiff to assign errors •
Held, not his proper course ; but tliat he slioulii
liave sued out a scire facias quare exeentionein
lion. Held, also, that this writ could not lie said
to have been sued out merely for delay, in wliioli
case the court will not stay execution, tor there
wiis fair gi-ound for contending tluit the plaiutitf
was entitled to Division Court costs, and that
the defendant should have deducted his own
costs in such court from his own County Court
costs. Po))e V. Reilly, 29 Q. B. 478.
V. Application for Full Costh.
1. Time for Ayplyiny.
The plaintiff recovered a verdict within the
jurisdiction of the District Court, and as soon
as the verdict was recorded, the court adjounied
A motion for a certificate, made at the opening
of the court on the following morning ;— Held,
too late. Falls v. Lewis, Dra. 500.
A certificate under 58 Geo. III., c. 4, it not
moved for after other causes have been tried,
though upon the same day, will not be granteil.
McKee v. Irwine, 1 Q. B. 160.
When ordered at the trial but not complet«l
from inadvertence, it may be comuletttl after-
wards at any time. Linfoot v. O'Neill, 5 0, S. 341
Where there are issues in law and in fact, auJ
a venire to try the issues and assess the damages,
a certificate must be applied for at the trial, and
an order cannot be made by a judge as in cases
of assessment, after judgment by default. Ma-
honey v. Zwick, 4 0. S. 99,
805
COSTS.
806
Where a verdict was found for the plaintiflF in
a defended cause, and the judce at nisi prius did
not certify, but the plaintiff afterwards obtained
an order for costs in chambers from another
iudge, as if the damages had been assessed after
inilunieiit by default— the court set the order
S ^«-A'«* V- ^^''''"^' H- '^- ^ Vict. -P. C.
—McLean.
After the jury had rendered their verdict, bu*
before any other business, the judge examined a
witness to prove only that the cause was com-
menced before the late District Court Act, and
therefore propr to be tried in the Queen's
Bench, and thereupon granted a certificate :—
Held, properly granted. Handcock v. Bethune,
2 Q. B. 386.
A certificate either under the Division Court
or District Court Act, must be moved for imme-
^ diately after the verdict is rendered, and no dis-
^ cretion remains with the court or with the judge
who tried the cause to gcant it afterwards.
ilalloch V. Johnston, 4 Q. B. 352.
Semble, that where in a personal action the
sum recovered is within the Division Court, a
certificate must be moved for at the trial, or
costs cannot afterwards be given. Hamilton v.
Clarke, 2 P. R. 189. — C. L. Chamb. —Richards.
In trespass, the verdict was for 45s., and a
certificate was applied for at tlie trial. The
judge took time to consider, and before judg-
ment entered, but after the first four days of
next term, certified that the trespass was wilful
and mijicious, and that it was a proper case to
he tried in the Superior Court :— Held, that the
delay was no objection. Wise v. Hewson, 1 P.
K. 232.— C. L. Chamb.— Burns.
A certificate having been granted, on appli-
cation first matle three months after verdict,
and costs taxed thereon, the order was rescinded
and costs revised : the defendant was at the
same time allowed to set-off the excess of his
costs of defence between attorney and client over
County Court costs against the plaintiff's costs
of the cause. Bonter v. Pr€tty,d C. P. 273.
See Major v. McKenzie, 23 C. P. 261, p. 808.
2. Parties Resident in Different Localities.
Where an action was brought upon a promis-
sory note, the consideration for which had
arisen in the district of A., and the plaintiff
brought his action and recovered a verdict under
£15, m the district of B, , the court refused to
set aside a certificate for costs, under the Dis-
trict Court Act. Secord v. Hornor, Tay. 215.
\\'here plaintiff and defendant and the plain-
tiff's witnesses resided in different districts, full
costs were allowed on a cause of action within
the jurisdiction of the District Courts. Hugill
V. DfmoU, Dra. 234.
Full costs were refused on a note under £40
where the plaintiff resided in the United States.
Snipyerv. McDmell, T. T. 7 Will. IV.
Full costs will not be allowed on a cause of
action within the jurisdiction of the District
Courts, unless the cause of action arose in the
district in which IJie plaintiff resides, or defen-
dant removed from the district in which the
action accrued before action brought. Ketchum
V. Crytkr, H. T. 7 Will IV.
Full costs allowed on a note for £10, defen-
dant having left the district in which it was
made, and residing in another. Perrin et al. v.
Carson, T. T. 2 & 3 Vict.
Full costs allowed in a cause within the juris-
diction of the District Courts, where there were
several defendants residing in different districts.
Jones v. Q'Sidlivan, II. T. 3 Vict.
So in a joint action against maker and indor-
ser of a note, for less than £40. Bank of B. N,
A. V. Dennison, 1 Q. B. 414.— P. C. — Macaulay.
Action against maker and endorser of a note
for £25, made and endorsed at Perth, in the
Bathurst district, but was discounted at Brock-
villc, in the Johnstown district, by the agent of
the plaintiffs, the endorsees, laying tlie venue in
the Johnstown district. Judgment by default,
and an order to compute was obtained ; — Held,
plaintiffs entitled to Queen's Bench costs. Com-
mercial Bankv. Ktrr, 5 Q. B. 320.
3. deduction by Payments.
Where anote originally beyond the jurisdiction
had been reduced within it by payments after
action, the plaintiff was allowed full costs. Kil-
born V. Wallace, 3 0. 8. 17.
Where, after action in the Superior Court,
defendant paid $152 in full of the suit, which
the plaintiff accepted, less costs, to be paid when
taxed or agreed on, it was held that the plaintiff
was entitled to full costs, as if the money had
been paid into court. Leslie v. Forsyth, I L.
J. N. S. 188.— C. L. Chamb.— Richards.
Where a note was reduced by payments before
action, full costs were refused, Donnelly v.
Gibson, 5 0. S. 704.
Where an account originally beyond the juris-
diction of the District Courts, was reduced
within the jurisdiction of the Court of Requests
by payments before action, a suggestion to de-
prive the plaintiff of full costs under the Court
of Requests Act, was refused. Scott v. Fergu-
son, Scott V. Rooke, M. T. 3 Vict.
The plaintiff is entitled to full costs, when he
sues for the balance of an account originally be-
yond the jurisdiction of the District Courts, but
reduced by payments never specially applied to
any items in the account. Mearns v. Gilbert-
son, 6 O. S. 573.
In an action for goods sold and delivered, the
plaintiff claimed $453. 50, but the verdict decided
that his proper claim was at first only $324.77 ;
of this $155 was paid before action, leaving
$169.77, of which defendant paid into court
$119. '77, and the verdict was $58, A certificate
for full costs was refused. Brown v. McAdam,
4 P. R. 54.— C. L. Chamb.— Hagarty.
Except in very special cases certificates will be
refused when the claim is reduced by payment
within the jurisdiction of an inferior court. lb.
4. Title to La)id in Question.
Trespass q. c. f. Plea, "that the close was
not the close of the plaintiff." Verdict for is,
damages : — Held, that the plaintiff, under 22
Car. I. G. 9, without a certificate that the titlo
■m.
k
■ I
im
U
m
'(BT V
807
COSTS.
808
came in question, was entitled to full costs.
Lnh. V. Bril<-!/, S Q. B. 307.
Trespass q. c. f. with a count for taking goods :
Plea, not guilty by statute. Verdict forJEl and
no certificate :— Hel<1, plaintiff not entitled to
full costs. Hawkes v. mchnrdxon, 9 Q. B. 229.
Trespass q. c. f. Plea, general ijsue only.
Verdict for 208. A certilicato un<lcr 22 & 23 Car.
II., was refused at the trial :— Held, confirming
Hawkcs 11. Richardson, 9 Q. B. 229, that the
plaintiflF was entitled at least to County Court
costs. Davis v. Jiarnet, 10 Q. B. 501.
In trespass, defendant pleaded not possessed,
which was held bad on demurrer, and plaintiff
obtained a verdict with 1j. damages. A certifi-
cate under 43 Eliz. w.os obtaine(l by defendant
after judgment entered and costs taxed, that
damages were under 40s. On motion for revi-
sion of taxation : — Held, that the plaintiff was
entit'ed to costs, because the judge could have
had no opportunity of certifying that the title
was in question under the plea, after its being
held bad Oii demurrer ; and that the certificate
under 43 Eliz. was too late. Kaiii v. McGUI, 2
C. P. 151.
In an action against a road company for ob-
structing a flow of water from plaintiff's lands,
the plea of not guilty by statute, was held not
to bring the title to '■'•'> land in question, so as
to entitle the plfi' ■ to full costs without a
certificate. OnerhoU v. Par'u^ and Dundas Road
Co., 7 C. P. 293.
Where in trespau" *he titl*' * land was not in
question upon tne >. -din^'o, and the plaintiff
obtained only £5 damages, and no certificate :—
Held, that he was entitled only to Division
Court coats. Hamilton v. Clarke, 2 P. R. 189 —
C. L. Chamb. — Richards.
Under the 16 Vict. c. 177, s. 1, it is for the
Slaintiff claiming full costs to shew that the title
id really and bonA fide come in question, not
merely that by the pleailings it might have been
put in issue. lb.
Plaintiff sueil for trespass to land, and obtained
a verdict for Is., the pleas being not guilty, not
possessed, and liberum tenementum ; and the
judge certified that the action was really brought
to try a right, besides the right to recover
damages for the trespass complained of : — Held,
that this certificate alone, taken with the plead-
ings, was equivalent to an assertion by the judge
that the title to the land wiis in (question, and
entitled the plaintiff to full costs. Spiers v.
Carrique, 23 Q. B. 585.
In trespass q. c. f. defendant pleaded that the
land was not the plaintiff's, and the plaintiff
obtained a verdict for £10 :— Semble, that he
would have been entitled to full costs without
a certificate, though title were not brought in
question at the trial (as in this case it was held
to be). Humbtrstone v. Henderson, 3 P. R 40.
-Q.B.
In trespass q. c. f. and for taking goods,
defendant pleaded not guilty : that the goods
Were not the plaintiff's, and justification under
a fi. fa. Title to land was not brought in ques-
tion : — Held, that the plaintiff on a verdict for
9175 was clearly not entitled to full costs with-
out a certificate. Stewart v. Jarvia et al, 27
Q. B. 467.
The plaintiff filed a bill for the protection of
the timoer on certain land which he claimed to
own. At the hearing the court retained the l)iii
with liberty to the plaintiff to bring an action
The plaintiff brought the action and recnvereils
verdict for 820. fi appearing that the (nicstion
in issue was the plaintiff 's title to the land hf
was held entitled to a decree with costs not.
withstanding the small amount of damage which
had been actually done by the defeiidmt
Mc Alpine v. EeJifYul, 16 Chy. 595.
See, also, County Coubts, III. 5, p. 842.
5. Decisions ui der 31 Vict. r. J^^ o.
Under this statute, section 1, a jiidgu shouj,!
certify for costs where he would have (hme s,,
under the repealed section of the C. L V Act
Orok V. Garvin, 5 P. R, 169.— C. L. c'hamh.-
Richards.
In an action for overflowing plaintiff's Jand
the defendant pleaded not guflty, and tlie jury
found for plaintiff with U. damages ;— Held
that (there being important rights at stake, and
it being such a case as would properly l)e re'mov
able from an inferior court by certiorari) the
plaintiff was entitled to a curtifi'iate for' full
costs. / />.
In an action for breach of promise nf marriaw
a certificate for full costs under 31 Vict. c. 24'
s. 1, was moved for at the trial, and refused-
but some seven weeks afterwards the plaintiff
applied for and obtained a certificate under the
same section, to prevent the defendant fnim
setting off costs. Tlie certificate was set aside
for, 1. Sec. 1, which only authorizes such a
certificate in actions of trespass or trespass on
the case, does not extend to actions of contract
like the present; and, 2. As the certificate
granted was not applied for at the trial, nor the
consideration thereof postponeil, it was granted
too late. Major v. McKenzie, 23 C. P. 261,
A certificate under 31 Vict. c. 24, ss. 1, 2, was
granted after a verdict for $1 18 " to entitle the
plaintiff to county court costs " : —Held, tLt
there could not be a set-oft" of costs on such
certificate. Moore v. Price et al, 5 1'. R. !).—(.'.
L. Chamb. — J. Wilson.
In an action for slander the plaintiff is entitlei!
under a certificate for full costs pursuant tn 31
Vict. c. 24, O., to tax full costs of suit; but,
per Gwynne, J., he is not so entitled without .i
certificate, upon the ground that some of the
words mentioned in the declaration are not
actionable without siiecial damage laid. Skmri
V. Moff(Ut, 20 C. P. 89.
6. Otlter Cases.
The master is not to refuse to tax Queen's
Bench costs, merely because the verdict is within
the District Court jurisdiction, although the
judge has not certified. Murray v. Orr, m. I
Full costs not allowed where in covenant only
£2 was recovered, and the judge did not certify.
Gardner v. Stoddard, Dra. 94.
Effect of the word "withdrawn" in a certifi-
cate. Ih.
One of the plaintiffs being judge of the Dis-
trict Court iu which the defendant resided, foil
809
COSTS.
810
n«ta were allowed, although the cause of action i
iM^rwithin the District Court jurisdiction. Janets
•*Vi„<,,3 0..S.3r,.
WTiere in an investigation of a charge under
♦hfl Petty Trespass Act, 4 Will. IV. c. 4, before
magistrates, the plaintiff .vas guilty of a cou-
tmot for which the magistrates convicted him,
hiit without warrant, and plaintiff brought an
iption for false imprisonment against thoni and
rpcovered —Held, that the action did not anse
Z consequence of anything done by the macis-
trates under the Petty Trespass Act, and that
therefore it was not necessary for the judge,
iinder the 21st sec. of that Act, to certify his
InnrnTal of the verdict to entitle the plaintiff to
h?s costs. Armour v. Bomell, 6 O. S. 450.
Full costs were allowed in a bailable action,
there being no judge in the district where the
rjHiseof action arose when the action was brought.
iSgs V. Dingman, T. T. 4 & 5 Vict.-P. 0.
— Macaulay.
So also, under similar circumstances in a non-
bailable action. WUVm v. Merriton, T. T. 4 & 5
Vict— P. C— Macaulay.
The plaintiff sued in the Queen's Bench, and
applied for Queen's Bench costs, on the ground
that on the day he commenced his suit, no judge
of the County Court had been appointed by
the government to fill up the vacancy that had
occurred ; but, Held, that under the circum-
stances Queen's Bench costs could not be allowed.
Sulhtrland v. Tmlale, 1 C. L. Chamb. 213.—
Bums.
Tlic plaintiffs having recovered only£5 against
a corporation, were allowed Queen's Bench costs,
M the right to sue a corporation in a District
Court was doubtful. FMer v. The Cify of
Kingm, 4 Q. B. 213.
The court ordered full costs on an assessment
of damages upon a cause of action exceeding
£30, but under £40, it being a case in which the
cMirt wonld have granted a certificate if there
had been a trial. In another case, it was re-
fused. Feirie v. Youiiij and McGlll v. SUdl, 'A
0. S. 140.
It is no ground for a certificate that defendant's
ict-off could not be tried in the District Court.
Gooderham v. Chilver, 5 0. 8. 496.
Plaintiff, residing in the London district, sold
[ goods to defendant residing in the Western dis-
[trict, who gave his note for the amount :— Held,
[ that on the mere surmise that the consideration
1 of the note might be disputed, the plaintiff was
I not justified in suing in tne Queen's Bench, and
could not therefore get full costs, Croni/n v.
I Probat, 6 0. S. 192.
Declaration on a special count and common
I counts— General verdict for a sum within the
1 District Courts, and no certificate : — Held, plain-
I tiff entitled only to District Court costs. Wanh-
\hrn V. Longlty, 6 0. S. 217.
Declaration in covenant, assigning two brea-
hes, one for liquidated, and the other for
nliqnidated demands. Verdict under £40 : —
leld, plaintiff not entitled to Queen's Bench
jioati without a certificate. Beattie v. Oook, 6
[0. a 217.
Where plaintiff, an attorney, brought assump-
[it and recovered 3s., the Court held him
entitled to full costs, as he proved a cause of
action to the amount of £20 and upwards,
although the jury decided cagaiiist him on those
items of his claim on hearing the whole evi-
dence. Kiiiij, one, ilr., v. Such, 5 C). S. 81.
Attorneys, sucing for costs by an attorney, and
not by attachment fif privilege, were recused
full coats. Strarlinn i-f. al. v. Rnllock, 2 Q. B.
382.— P. C— Macaulay.
Trespass for assault and battery. Defendant
pleaded that the plaintiff was wrongfully in
defendant's close, and molliter nianus imposuit
to turn him out, and the plaintiff replied excess,
and obtained a verdict for Is. : — Held, that ho
was untitled to full costs. Canlffw Curwiii, T.
T. 5 & 6 Vict — P. C— Macaulay.
In an iiction for assault and battery, where a
battery has Ijeeu proved, the judge nevertheless
has a discretion to withhold a certificate for full
costs under the 22 & 23 Car. II. c. 9. Curr v.
Trotter, 8 Q. B. 324.
An jvction for assault and battery was brought
before 18 Vict. c. 17r), s. 26, a'.d damages were
afterwards assessed at Is. After the passing
of the C. L. P. Act, sec. 312, the plaintiff
ap])lietl for an order to tax full costs : — Held,
that the 16 Vict. c. 175, being in force till the
C. L. P. Act came into operation, the plaintiff
might have moved under it ; and the applica-
tion was refused. Savage v. Jioberlsnii, 2 P. R.
307. -Q. B.
After the jury had rendered their verdict,
but before any other business, the judge exam-
ined a witness to prove only that the cause was
commenced before the late District Court Act,
and therefore proper to I>e tried in the Queen's
Bench, and thereupon granted a certificate : —
Held, properly granted, llandcock v. Befhune,
2 Q. B. 386.
Held, that a party who gave instructions for
an action, without specifying the court, (the
attorney not stating that he would expect him
to pay the difference should the verdict Ikj
within the County Court jurisdiction, and com-
mencing the action in the superior court), was
only liable for (\)unty Court costs Ijetween
iittorney and client, the sum recovered being
within the jurisdiction of the County Court,
and no higher costs being taxable between party
and pai-ty. Scantnn v. McDonough, IOC. P. 104.
An action in which it would be necessary to
issue a commission for the examination of wit-
nesses may bo brought in one of the superior
courts, although the amount sued for may be
within the jurisdiction of an inferior court. Corn-
stock V. Leaney, 3 L. J. 13— C. L. Chamb. —
Burns.
An order for a certiorari to bring up a case into
a superior court entitles the defendant to the
full costs of that court if he succeed, without
any certificate. Corley v. Roblin, 5 L. J. 225. —
C. L. Chamb. — Richards.
The fact that a plaintiff prays an injunction
is not sufficient to entitle him to full costs with-
out a certificate. The action itself and the equit-
able relief sought must be such as to justify
the judge in certifying it to be a proper action
to be tried in the Superior Court. There is
nothing in the Patent Act, C. S. C. cap. 34, to
justify the judge in refusing to certify for costs,
I. tj
.1 '
■ ii ^ 1 M
~
'' ^ It; \t ':■ '
iiil
If
811
COSTS.
merely because defendantmicht havedefeated the
plaintiff entirely by proper pleading, but had not
(lone 80, Under the peculiar circumstances of
thcde cases : — Held, that the first was a case
proper for a certificate, but the secoiul caHO not
80. Kiiwri/ V. Ircihde, Knirri/ v. flodi/f, 7 L. J.
181. -C. L. Chanib.— Richards.
In an action on a lease alleged to contain a
covenant sued on, where it was a difficult ques-
tion of law to determine whether or not the
lease contained such a covenant, iilthough the
jury found $l'tO damages only, the judge certi-
fied that the cause was a fit one to be tried in the
Court of Common Pleas. Thompson \. Crav/onl,
9 L. J. 2()2.— C. L. Chamb.— Richards.
The amount of the verdict primjt facie settles
the jurisdiction, and if under any circumstances
tlic inferior court could have tried the action for
that amount, a certificate is necessary. Bonter
V. Prelti/, 9C. P. 273.
The mere fact that the damages have been
laid at a sum beyond the jurisdiction of the
Coxmty Court, does not entitle the plaintiff,
without a certificate, to superior court costs.
In the absence of this certificate the master on
taxation must be governed by the verdict re-
covered. Miller V. The Beaver Mutual Fire
Insurance Co., 15 C. P. 75.
The verdict of the jury must determine for all
purposes of costs the amount of the plaintiff's
claim. Brown v. McAilam, 4 P. R. 54. — C. L.
Chamb.— Hagarty.
Where an action was brought on an open ac-
count, and a verdict entered by consent for the
•amount claimed, which Wits within the County
Court : — Held (dissenting from Bonter v. Pretty,
9 C. P. 273,) that it was a case in which, under
rule of court No. 155, a judge in Chand)ers could
make an order for full costs. Cumberland v.
Mlout, 3 P. R. 14.— C. li. Chamb. —Robinson.
A certificate is necessary to obtain full costs
in replevin as in other actions, though the affi-
davit and bond state the goods to be worth a
sum above the jurisdiction of the inferior courts.
Asldon V. McMillan, 3 P. R. 10.— Q B.
At the trial in replevin in the County Court a
verdict was entered for defendant, with leave
reserved to move to enter it for the plaintiff, .ind
no certificate was applied for. On appeal a ver-
dict was directed for the plaintiff for 15s., and
the clerk of the County Court taxed only Divi-
sion Court costs. The judge refused a revision,
and this court would not interfere, fii re Cole-
man v. Kerr, 28Q.B. 297.
The mere fact of the plaintiff' in his declaration
in replevin stsvting the value of the goods dis-
trained at a higher sum than £15, does not shew
that the action could not have been brought in
the District Court. The plaintiff, to entitle him-
self to Queen's Bench costs, must prove at the
trial that the goods are really of greater value.
— Macaulay, J., diss. Wheeler v. Sime et al, 3
Q. B. 265.
An action of seduction may, under some cir-
comBtances, be brought "to try a right," or the
grievance complained of, may be "wilful and
malicious;" and therefore, on a verdict under $8,
without a certificate, the plaintiff was held not
entitled under C. L. P. Act, b. 324, to any coats
whatever, but as the ^.tatuto is confined t,
verdict or assessment he was entitled tn full ' '
of demurrer. Townxend v. Stcrlina 4 P R u.
— C. L. Chamb.— A. Wilson. ' '-'
The 554tli general order as to the tilim' a „
tifiuatc of the applicability of tlic lower v'
tarifl" is directory, and the omission of It 1*''
not entitle a defendant in case of the dibmuli
of the bill to the higher scale costs, cxceptl
fees of court actually paid. Fenutwnx IfJici''
ISChy. 511. ■ *
The costs of a suit by a judgment creditor ti
whom less than $200 is due, to obtain navmeni
of his own debt alone out of property aile'i;i;,l t
have been conveyed away to defeat tlie plaintiff!
claim, arc taxable according to the loH\'r scale
no matter what the value of the i)rnDertv nu-
be. Forrest v. Laycock, 18 Chy. 611. '
When a plaintiff tiles a bill iu this court t<i
foreclose a mortgage for a sum within the jurJ!.
diction of the «Jounty Court no ccsts will Is
allowed him. The fact that defendant is rei.
dent in a county other than where the land ii
situate will not vary this rule. VonmU v. Cunm
1 Chy. Chamb. 11. — Spragge. '
Prima facie the sum realized on a sale undera
power contained in a mortgage is the subject
matter of the su t. A mortgagee exercised the
power of sale contained in his security, aiiil
realized $350. On a bill filed by the mort'gagoi
for an account, it appeared thatafter deductin;
the amount due on the mortgage at the time J
sale, together with the costs of tho sale and o'
an action of ejectment, as also a payment madt
to the plaintiff before suit, the balance comin. i
to the plaintiff was reduced to $130. The plaiif
tiff was still held entitled to his full costs, "thf
subject matter involved" being the $35o' J/j,
Gillicuddij v. Griffin, 20 Chy. 81.
VI. Application to Deprive Plaintiff or |
CosT.s UNEER 43 Eliz., c. 6.
It is not compulsory upon a judge to certify I
under 43 Eliz. McOiiire v. Donuldmn, Tay. 24", '
In an action for a libel wherein the plaintiff
recovered only 20s., the judge refused to certify,
Cameron et ux. v. McLean, Tay. 381.
Where the jury gave (mly Is., a certificate
under 43 Eliz. to deprive plaintiff of costs was
refused. Jeffreij v. Lawrence, 5 0. S. 31".
AVhere there are counts in trespass ci. c. f, and
de bonis asportatis, and a general verdict uiJer
40s. , the judge may certify, to deprive the plain-
tiff of costs. Harper v. Ward, M. T. 4 Vict
In trespass q. c. f., to which the general iisie
is pleaded, (not by statute,) the judge maycerti^
under 43 Eliz. , to deprive the plaintiff of coiti;
when the damages are under 408. Qooddr.
aim, 6 Q. B. 14.
Declaration for trespass and fal«e impriion-
ment, that the defendant assaulted the pliiinti£
Defendant pleaded : 1. Notmiilty; and3,3,ud
4, as to the assaulting the plaintiff, and keepiig
and detaining him m prison, of justiiicatioo
under writs of ca. sa. and ca. re. Verdict for
12s. 6d. :— Held, that a battery was not adiiitted
on the pleadings, and therefore a ceitifictte
812
onfiiieil ti ,
I to full C(«t,
. •tp.R.ia,
a tiling a «,.
e lower sti,
on of it (l,j
the ilibmu«4
its, except i,r
m V. liutkiL
nt creditor, ti
)t;iiii paymem
ii-ty allcj-edt.)
t the plaintiff,
le lowvT Seal*.
property mav
611.
. this court U
ithiii the jum-
costs will k
endant is resi-
!rc the land ii
undl\:Ciirrai\,
1 a sale under a
is the subject
e exercised tht
i security, aiiJ
f the niortgagoi
after deductin;
e at the time a:
tho sale andol
I payment madt
balance cominj j
130. The plain-
full costs, " the j
the ?350. J/e.
Plaintiff nr]
I, c. 6.
Ijudge to certify
(W.50«,Tay.24-,
pin the plaintiff
Jfuaed to certify.
1381.
Is., a certificate
lifT of costs was
lo. S. 317.
■pass q . c. f. and
It verdict under
Iprivc the pto
Til. T. 4 Vicl
hie general ime
Idge may certify
laintiff of coeti,
Oooddi.
J false impriHO'
|edthepkinti£
r, and2,3,aiid
|ff, and keepiii;
of joatilicattgii
Verdict lot
inotadmi*!
a certifictit
813
COSTS.
814
i -,;o1it be crantcd under 43 Eliz. c. 6, to depnve
the pS'ff 0^ <='"'*''• •^'^" ^- ^'"•^''«"' " Q-
B. 204.
VII. Several Issues.
1. Imies in Law and in Fart.
Where the issues in fact and one issue in law
in favour of the plaintiff, and an issue in law
n bar of the action in favour of defendant, the
nlaintiff is entitled to the costs of the trial and
f the pleading determi'-ed in his favour, and
defendant to the general costs of the cause.
Davis V. Davis, 5 0. .S. 453.
\Vheu the plaintiflf succeeds on a demurrer to
nlea in abatement, he cannot recover the costs
o/the demurrer under 7 Will. IV. c 3, until
HiB termination of the suit. Richmond et «?. v.
iV«.H.T.2Vict.
Defendant took issue upon some counts and
demurred to the rest, and judgment was against
the demurrer, but the issues found for him : —
uJrl that he was entitled to the costs of those
S. A^/iWrfo« V. Hamilton, M. T. 3 Vict.
In trespass against two, they pleaded the gene-
ral iMue and separate justifications, to which the
nlaintiff demurred, and he obtained a verdict on
the general issue, assessing contingent damages
on the demurrer, on which judgment was after-
wurds riven for one defendant, and against the
Xr:-Held, that under 7 Will. IV. c. 3, ss. 24
and 26, the defendant who succeeded on de-
murrer was entitled to enter judgment for his
coits. Clarke v. Durham et al., T. T. 4 & 5 Vict.
_P. C.— Macaulay.
Defendant demurred to one count, and took
issne on the others ; the plaintiff went to trial
»nd assessed contingent damages on the demur-
rer; the plaintiff succeeded on the demurrer,
, and defendant on all the issues : -Held, that
j defendant was entitled to his costs of the issues
i 11 fact, and might have judgment and cxecu-
[ ton for them. Taylor v. Can; 4 Q. B. 149.
When upon a demurrer and issues in fact,
I judgment is given for defendant on the demur-
rer, and the issues are found for plaintiff, the
[ defendant caiuiot call upon the plaintiff to pay
toi the costs of the issues on which lie failed as
condition of his (the plaintiff's) being allowed
to amend on the demurrer. Bunk of B, iV. A.
I. Ainley, 7 Q. B. 521.
Tlie plaintiff had a verdict on all the issues,
itobject to a demurrer ; the demurrer was decided
ii favour of the defendant ; the plaintiff had
leave to amend on pajTuent of costs : — Held, not
Ktitled to the costs of the day at nisi prius, not
laving succeeded on any of the issues. Bank
"B. K. A. V. Ainley, 1 C. L. Chamb. 187.—
lacaulay.
Plaintiff declared against defendant as a
ickholder in a railway company, to which
[endant pleaded and demun'ed. The issues
fact were tried first, and resulted in a ver-
!t for plaintiff, with leave to move for a non-
it, which rule was taken out the same term
which demurrer was set down, and upon the
T being called on for argument the plaintiff
ined leave to amend on payment of costs,
amended declaration was after .rds served,
defendaat's costs taxed upon the amend-
ment, when the costs of tho issues of fact and
the rule nisi were disallowed. Upon motion for
revision in Chambers, referred to full court : —
Held, that defendant was entitled to all the
costs of the demurrer and application to amend,
and (the question being a new one) the costs in
Chambers and of this application. Frascr v.
Hickman, 12 C. P. 213.
In an action on the case, the plaintiff had
judgment on demurrer to some of the pleas.
He afterwards obtained a verdict for Is. damages
on the issues in fact, and a certificate for costs
was refuseil : — Held, that under C. L. I'. Act,
s. 316, he was entitled to his full costs of the
demurrer, and that sec. 328 did not apply.
Kinloch V. Hall, 2(5 Q. B. 134.
A declaration contained one count for seduc-
tion of plaintiff's daughter, and another for
necessaries su])plied for the child. Plea not
guilty to first count ; demurrer to second. Tho
issue in fact was first tried and verdict for the
plaintiff for 5s. Judgment was afterwards given
for plaintiff on ♦'he demurrer, whereuptni the
plaintiff remitted on the roll all damages, with-
out excepting costs, under the second count,
and signed judgment for the 5s. and full costs
taxed. On a summons for revision ;— Held,
that the plaintiff was entitled to the costs of
demurrer to the second count, although it would
liave been more correct to have excepted the
costs in the remittitur. Townsend v. iSterlini/,
4 P. R. 126.— C. L. Chamb.— A. Wilson.
The plaintiff' appealed fnnn the report of the
niaster, stating eleven objections thereto. On
the argument he abandoned one, two were found
ill his favour, and the remaining eight were
decided against him, but they embraced only
four distinct (juestions. Under the circum-
stances, the court, instead of giving one set of
costs to the plaintiff and another to the defend-
ant, directed the costs of the appeal generally
to be taxed to the defendants, deducting there-
from one-fourth in respect of the partial success
of the plaintiff. Ftr<iu»on v. Frontenac, 21
Chy. 188.
2. Sewral Ismies in Fact.
Replevin for 900,000 feet of sawn lumber.
Pleas : 1. Non cepit ; 2. (Joods not plaintiff's ;
3. Goods defendant's. The jury found in favour
of the plaintiff" for 350,000 feet of lumljer, and
for defendant as to the remaining 550,000 : —
Held, 1. That the plaintiff was entitled to the
general costs of tho cause ; 2. that defendant
was entitled to the proportion of costs occasioned
by that part with respect to which he had suc-
ceeded, and to deduct them from the plaintiff's
bill. Canifv. Boijart, 6 L. J. 59.— C. L. Chamb.
—Bums.
A judge will not certify under 4 Anne c. 16, s.
.'), to protect a defendant against the costs of a
plea which he knows is not true, but which he
pleads for a collateral purpose. McLeod v.
Torrance, 3 Q. B. 174.
Action against administrators on several counts.
Pleas : 1, Plene administraverunt prieter, a Divi-
sion Court judgment for .i;20, and that goods of
intestate in defendant's hands were insufficient to
pay ; 2. Payment of £55, before action brought,
iu satisfaction of so much ; 3. Set-off. Plaintiffs
:1
i- t
!i I
i h fi
ML
810
COSTS.
iU
took iasuo on each plea, and to the first also re-
plied loiuls. Defeiiitants rejuiiied, admitting that
inteHtute died seitied of laiulo, but denying that
they had any power to deal with them, and pray-
ing jiulguient de Iwiiis propriis ; to which repli-
cation the i)laintitt''8 demurred. Afterwards,
defendants further pleaded the recovery of five
juilgmenta against them as administrators, and
remaining uusatistied and no effects sufficient.
Plaintitl's replied tliat one judgment was obtained
by fraud, and took issue as to the others. The
court decided for defen<lants on the demurrer.
A verdict was rendered for plaintiffs on the
issues subject to reference, costs, &c., to abide
tlie event of the award. The award found the
issue on the plea of plene administraverunt, and
the pleas of payment in favour of defendant :
that on the plea of set-oif, defendants were
entitled to £5, leaving balance in plaintiffs'
favour of £'220|ls. Id., whicli sum was awarded
to plaintiflFs. The remainiifg issues were awarded
to defendants : — Held, that defendants were only
untitled to judgment on tlie issues determined
in their favour witli their costs of cause relating
to such issues, while the plaintiffs were entitled
to judgment as against the estate of intestate for
the amount found due on the plea of set-off with
the general costs of the cause, except as to issue
found against him, and for the costs of the issue
on the plea of set-otl' against the defendants de
bonis prouriis. J/ci/i et al. v. S/iorl et al. 11 C
P. 430. See IloHou v. MeDonaU, 12 G. P. 24(;.
Trespass in one count n. c. f. , and taking away
goods. Defendant justifies the breaking and
entering in one plea, and in another, denies the
goods to be the plaintit}''s. Defendant has a
verdict upon the hrst plea, au<l plaintiff upon
the second for 30s. : — Held, plaintiff' entitled to
judgment in the action and the costs of the
cause. Eranx v. K'iiujsvhU, 4Q. B. 132.
Where defendants had set up several grounds
of defence on which niucli evidence was gone
into, €and the court without going into tliese
defences, dismissed the plaiutiff''8 bill on a
ground not argued, and whicii might have been
taken by denmrrer to the bill : Held, Esten,
V. C. diss.) tliiit the defendants were notwith-
standing, upon the autliorities, entitled to the
whole costs of their defence. iSimptiony. Grant,
5 Chy. 267.
In answer to a bill for the redemption of a
mortgage alleging usury in the original transac-
tion, the mortgagee set up several defences
which were decided against him. The court, in
decreeing redemption, ordered the plaintiff' to
pay the costs as of a common redemption suit,
and defendant the costs of the issues found
against him. /xhiTwoud v. Dixon, 5 Chy. 314.
VIII. Set-off of Costs.
1. QemraUij.
■\Miere a defendant put off a trial on pay-
ment of costs, and never having paid tliem
aftenvards, obtained a verdict : — Held, that
those costs could not be set off against defend-
ant's general costs, there being no affidavit of
his insolvency. Potts v. Doyle, 5 0. S. 97.
If plaintiffs on a verdict ai-e allowed only Dis-
trict Court costs, and defendant neglect to take
out a rule to be present at the Uxatiou, the
court will not direct a revision that defendint
costs maybe deducted. McCalUlal. v.Caiur
1 Q. B. 414.— P. C— Macaulay.
»ltro(^
If the plaintiff refuse to enter his jiulim
in a case where defendant is entitled to ^ul
his costs against plaintiff's verdict ami cost.
judge in C'ham\)er« will limit a time wiU
which plaintiff must enter his judgniont ,
in default, allow defendant to enter it for h!''
Sinclitir v. Barrow, 3 L. J. 49— C. L. Chamb'*
Richards.
Held, that a defendant who conceives he im
a right to costs against a plaintiff, in consemie!!
of plamtiff havnig recovered in a superior Cdm
an amount witliin the jurisdiction of au iiifen^.
court, is entitled to call upon plaintiff, eiti-!
himself to proceed to the entry of judgment '
to bring in the record, in order that i\u\mm
may be entered by defendant. Cross v Wnt
house, 3 P. R. 287.-C. L. Chomb.-Morril^'
Held, also, that a judge in Chainljers k,
power to entertain tiie application and make tl,
order. lb. '
A plaintiff having taken out a rule for tke
payment of costs, &c., erroneously entitled'
gave defendant's attorney notice of a waiver o''
the rnle, and proceedings under this rule were
stayed by a judge's order until the fourth dayd
next term. The plaintiff after that day iaaueii
the rule properly entitled, and having obtains
an order for an attachment, arranged witi
defendant's attorney to allow certain costs to bt
set off against the costs for tlie non-payment u
which the attachment was ordered, ajul thattiii
attachment should only be proceeded with f«
the balance. The defendants, on the ilst u I
November, obtained a rule to set aside the rult
or the attachment thereon issued, on the ltcuhc j
that tlie plaintiff's attorney had issued the rult j
properly entitled without authority, and durint j
the time the proceedings were stayed by tkl
judge's order. Against this rule it was shm
that on the 18th of Noveniljer the plaiiitiffj
attorney served a notice on defendants' attorney, L
abandoning the second rule and the attachment I
issued thereon : — Held, per Draper, J,, that the f
judge's order only stayed proceedings upon tlie
rule erroneously entitled, not in the cause ; and |
that the arrangement made by defeudiuitj'
attorney with plaintiff's attorney as to setting
off' costs after the attachment had been ottiereJ,
precluded defendant from going back to object
to proceedings antecedent to the granting of tie
attachment ; and as, in addition to this, notk'e
of abandonment of the attachment bJ been
served before defendant's attorney took out ttis
rule, that such rule should be discharged witli
costs. Doe Murphy v McQuire, 1 P, R 33.-
P. C.
The 13 & 14 Vict. c. 53, s, 78, enacts, thitin
any suit which might have been brought in a
Division Court, unless the judge shall cettifjM
therein mentioned, so much of defendant's costs
as shall exceed the costs which would hare been
incurred by him in the Division Court iWl
be set off by the master in entering judgment
against the plaintiff's costs, and defendant skll
be entitled to execution against the plaintiff vlien
the costs to set off shall exceed the nlaiatiff's
verdict and Division Court costs :—flelil, tint
under this the defendant might set off the eicess
of his cost of defence above his owu >d ^
(16
it defendant'i
his judgttsu
itk'd to set «J
t ami costi. i
time witla,
udgniont, tj
ter it for ha.
. L. Ch&mk
niceivesheroi
in c(m8e(iuetct
I superior ct«r,
1 of an iiifcft:
plaintiff, eii.
if jud(jiutnt,i|
that juiluimu
'Jrons V. WaH
nl>. — Morrisoi.
ChamWrs hi
lu and maki: tit
; a rule for tlit
jously entitW,
) of a waiver (li
r this rule «ett
the fourth day oi
that day issueii
having obtaiueii
arriuigeil viti
srtain costs to It
non-payment oi
red, and that till
oceeded with k
, un the 'Jist ui
get aside the ruk {
id, on the groumi
d issued the riili 1
ority, anil during 1
•e stayed by tlitl
de it was sliewil
if the plaintiff 'i I
indauts' attorney, '
il the attachment I
aper, J., that the 1
ledings upon the |
|n the uauee ; iud
by defeudiuti'
•ney aa to setting
lad been ordered,
]g back to ohject
le granting oi tlit
lu to this, notirt
rnient had ten
[ney took out this
discharged with
ire, IP. R. 31-
b, enacts, th»t in
ten brought ii >
|e shall certify «
Idefendant'scatJ
I would Lave been
Mon Court W
ftcring judgment
lldefeuilantsluul
Ihe plaintiff wlna
Id the plaints'*
|t8:-Held,W
Isetofftheacffl*
I own >i^^
817
COSTS.
818
..laintitf's verdict.— Draper, J.. tlisH. ('ami>ro>i
^y^rm/MI, 12 Q. B. 159; S. C. I. P. K. 170.-
(', L t'hamb.— Burni.
Held also, that the plaiiitifT's attorney, having
Ivanced to the plaintiff the uniount of the ver-
Ti,t c(«uld have no lien so as to deprive the
llefemlant of the lieneHt of the statute. //-.
Two actions coinnienced in December were
tried in May ; t^'O plaintiff had a verdict in one
^,1 .i„f,..>,l.iiit in the other. In March the
and (icieimiiiii m ""■.■ -• -
plaintiB- assigned all his effects t<. us attorney
for the l>enetit of cre<litor8 :— Hebl, that not-
withstanding the assignment defendant was en-
titled to set off his costs against the plaintiff's
verdict and costs, saving the attorney s lien for
his costs, if it could bo shewn that the property
nuditfiied to him was insufficient to pay them.
rjPv. Jhuu-kr, 1 V. II. 305. -C. L C'hanib.
--Kobinson.
Trover for a deed. Verdict for f24 1 (is. A
new trial was ordered unless jdaintiff would ac-
cept nominal damages, to which he consented.
The court refused to compel plaintiff to enter
iudgraeut and tax his costs, or allow defendant
to do so for him, in order to set-off the costs of
defence, and recover the excess over the plain-
tiff's verdict and taxable costs— first, because it
il not clear that an action of this nature is
within the jurisdiction of the Division Court ;
juid secondly, because the verdict was not re-
duced until after the trial, and the plaintiff
therefore had no opportunity to apply for a cer-
titicate, which perhaps lie might otherwise have
oliUined. (li'iii V. Scott, 11 Q. B. 542.
A certificate having been granted, on applica-
tion first made three months after verdict, and
costs taxed thereon, the order was rescinded and
costs revised. The defendant was at the same
time allowed to setoff the excess of his costs of
defence between attorney and client over County
Court costs against the plaintiff's costs of the
cause. Boiitcf v. Prelti/, 9 C. 1'. 273.
Where in an action for false iinprisonnient the
plaintiff obtained a verdict for la., and no certi-
ficate :— Held, that as he was entitled to no costs,
defendant could not, under sec. 3'28 of the C. L.
P Act set off or recover his costs, against him.
Vrm V. WaterbuiKie, 23 Q. B. 590.
Held, that where plaintiff", without a trial, re-
covers in a superior court an amount within the
(lecuniary jurisdiction of an inferior tribunal,
defendant is not entitled to set off as against the
costs of plaintiff so much of defendant's costs
taxed, as between attorney and client, iis exceed
the taxable costs of defence, which would have
licen incurred in the inferior tribunal, had the
iwtionbeen brought in that tribunal— sec. 328
of C. L P. Act not being applicable. Juhunon v.
.Vor%, 3 P. R. 217.— C. L. Chamb.— A. Wilson.
[Sec now 31 Vict. c. 24, 0., which repeals sees.
.124 and 328 of C. L. P. Act, and substitutes
: other provisions.]
Held, that a judgment purchased by defendant
from a third party cannot be set-off against the
costs of the day, given to the plaintiff upon an
_ application to i)08tiK)ne the trial, secured l)y the
personal undertaking of the defendant's attorney
; to pay these costs, and upon which the jdaintitf a
' attorney has a lien. Bennett v. Treyent, G P. R.
rlll.— C. L. Chamb.— Gwyiine,
52
The plaintiff, in the County Court, recovered
$i} on a declaratiiiii containing couutH on the
warranty of a horse for deceit, and the common
counts. No certitic.ite was granted, .and judg-
ment was entered for defuiulant for his costs of
defence as between attorney and client, less the
^5 damages. 'I'lie phvintill' removed tiie jiidg
mcnt by writ of error, conteiidiiig that under tiiu
.■statute of Ontario, HI Vict. c. 24, .s. 2, sub-s. 4,
he was entitled to Division Court costs. The
defendant o))tained a rule calling upon the plain-
till" to assign errors : — Held, not hi.s proper
course ; but that he should have sued (mt a
scire facias (piarc cxccutioneni iioii. llehl, also,
that this writ could not be said to have been
sued out merely for delay, in which case the
court will not stay execution, for there was fair
ground for contending that the plaintiff' was en-
titled to Division Court costs, and that the
defendant should have deducted his own costs
in such court from his own County Court costs.
l'oi>e V. Rcilly, 29 Q. K 478.
Defendant jdeadcd several pleas on which issue
was joine<l, and afterwards pleaded a defence
arising since suit commenced, to which the plain-
tiff" replied, confessing its truth, and praying
judgment for costs. It was ordered that all the
pleas and issues thereon, except the plea con-
fessed, should be struck out, tne costs of such
pleas to be setoff against jdaintiff 's general costs
of the cause, (t'cvdoii v. JMiinnon, 1 L J. N. .S.
32G.— C. L. Chamb. -A. Wilson.
A certificate under 31 Vict. c. 24, ss. 1, 2. was
granted after a verdict for S>1I8, " to entitle the
plaintiff to County Court costs" :- Held, that
there couhl not be a set-off of costs on such cer-
titicate. Moony. J'rlre tt n!., 5 P. K. 9.— C. L.
Chamb. — J. Wilson.
Where the plaintift''8 Idll s(mght to enforce
two judgments, one of which tne court held
him not entitled to enforce, no costs were given
to either party up to the hearing. The rule
seems to be, that where costs are to be set off
against other costs, the court will not give costs
to either party. Cameron v. Bnullniri), 9 Chy. 07.
A dt'cree had been made in a cause giving the
plaintiffs relief, and ordering defendants to pay
the costs, which however, were not paid, 'rhe
plaintiffs appealed from a portion of the decree
with which they were dissatisfied, which appeal
waa dismissed with costs, to be paid to one of the
respondents ; thereupon the plaintiff's applied to
set oft' the amount so ordered to be paid against
the costs directed to be paid Ity the defendants
in the court below to the plaintiffs, which was
ordered accordingly. Bunk of Upper C'">'itl(t v.
Tlwmiis, 10 Chy. 351).
On the dismissal of a bill, costs weic laxed to
the defendants, and execution issued against the
plaintiff, which was returned nulla Iwnia. Two
of the defendants, as administrators, held moneys
part of which would, on distribution, belong to
the plaintiff", and which they now applied for
leave to set off against the taxed costs. Under
the circumstances the motion was refused.
Blaek v. Black, 11 Chy. 270.
The practice at common law with respect to
the set-off of one defendant's costs against those
of another, for the benefit of the plaintiff", does
not prevail here. Nor can a plaintiff set oft'
costs payable by cue defendant against that de-
I (i|
1 4\
m
■ Am
ill!
BWP
819
COSTS.
8Jf)
foiulMit's Hhnre of the joint coiits of ilefencc in
the Muno unit, all ilofviidaiitH Ixjiiig ropn^iieiittid
by the Bunie solicitor, Citminfrcial Hank v.
ElmMxl, I Chy. ChiHiih. 'i\\i. VnnKougliiiet.
Ill a partin'rihip Huit, the purtiito'Hlii]) wiui
found indubtud to tliv dufcndunt ; iind, on tliu
other hand, thu dufcndant wiim lialilu to curtain
coBtH. Tliu (lofuntlant havinu tfH'oniu insolvent,
it waH hbld that thu iiluintiiT wiih untitled, not-
witliHtandinu tliu iiiaolvuncy, to Hut otf thu ciwts
ftj(ainBt thu dultt. JMuIkiiii v. SniiHi, 17 < 'hy. 51'J.
To entitle a party to Hct ofl'onu debt agaiimt
another, it uiu»t be shewn that tho dubtH are
due from and to thu Hanic )iartii'8 ruHpectively,
Where, therufore, a dubt waNduu from A. toll,
and an amount of coBtu wim due from M. and liiH
Holiuitor to A., thu court rcftiMcil an application
made by K. and hiit solicitor to Nut otV thu one
amount agaiimt the otlicr, although the ctTect of
BUch a Bct-ofT would have been that B. would
have paid a <lubt for wliidi he miih only jointly
liable with another. IVilnDii v. Siritvi; 1 Cliy.
Chamb. 1()0.— Hpraggo.
A bill had been filed for an injunction to Htay
an action of ejectment, which action thu plain-
tiff BucceBsfuUy defended before any injunction
could be obtained, ho ]>roceeded no further with
his Buit in equity, and the bill wAs <litiini88ed
with costs. It was claimed that the costs at
law should be set off as against these costs, but
the referee considered that costs at law could not
bu set off against costs in eijuity, that being the
rule in Kngland. Strong, V. ('., athrnietf thu
order of thu referee as to the lirst point, and
without expressing any o])inion as to wliuthcr
costs at law couhl bu set oil' againstcoots in uiiuity
in a proper casu, aHirmed tlio order of tliu rcfereu
ill this point also, on the gniund tliat the lieu of
the attorney attached, ami was paramount to any
right to set-off. fVchb v. McAiiliKi; 4 (!liy.
(fianib. (13.— Tayhu', /frfim:
A defendant in an ejectment suit entitled to
relief in e(iuity on thu ground of mistake, defen-
ded the action, in wliicii he was unsuccessful,
instead of coming at once to this court for relief.
Subsequently he filed a bill and obtained a <lecree
with costs, but the plaintiff' at law was held en-
titled to set off' against such costs his costs of
the ejectment subsequent to the writ. Hii /iii's
V. CMen, 21 Chy. .'5.
Unll, llg,
IX. Taxation ok Cohto.
1. N^ofiet of TaxaCum.
Where a party does not appear on notice of
taxation, he cannot, perhaps, object to the
amount of items taxable in the <liscreti(>n of the
of the master, but he is not iirecluiled as to
items in toto, ujMin the allowance of which the
master has no discretion. Conycr v. McKvchnie,
1 C. L. Chamb. 209. -Burns.
The judgment having been entered without
notice of taxation, the court set it aside as irreg-
ular, in order to give defendant the advantage
of a certificate under 4.S Eliz. c. (i, which had
been obtained after judgment, and therefore too
late. Davu v. Barnet. 10 Q. B. fiOl.
Wont of notice of taxation is not in all cases
« sufficient reason for setting aside judgment.
Riafh H nl. v. //«// nntl PntttmoH v.
B. 3M.
Sombh', that it is no ground. Frihm v rVi.//,„
I F. H. 3IU.-C. U I'hamb. -KobiMHon.
;io.
2. <!u»lii nlliiwf)!,
(a) CoiiHMi'f Frf and Hnrf.
The counscrs fee should bo excluMivily m f ,,
fee with brief at tho trial. Dm. ,\. Ii,„ili„„ I
Swilzir, I C. U Chamb. 8.1. -I'. C, Mmft„i,n,
An attorney is entitled to recover aj^uinut In,
client fees paid to counsel conductiiit{ tlie iaite«
thu trial. Hivrk v. liuml, 3 Q. li. ;t4<).
With respect to brief and counsel ff(
held umlor tho circumstances of this i ,,,,(
thu master should aUow no diHlinrNcinciit t«
counsel with brief, nor any charge witli liri,.(
either not actually incurred or umieci'SMnrilv
incurred. /V;/;/ v. /V;/;/, ^ <.). H, •_>•_>(),
Whore separate actions woro lumi^iit auainsl
the maker and endorsers of a note, ami 1111(11111
demurrer to the replication judgment was L'ivtn
for defendant, and the plaintillH niiule (nie ap.
plication to amend in the three caMUH:-Hulil
that defendant was entitled only tu the coKta ai
for one case, in attending to opjxigu it. Held,
also, that as to the ordinary fee dialjunjud tu
counsel to argue the demurrer in the tlirte eases
and the ordinary taxable costs occiwiimed tu ilc'
fundant by the demurrer in each case, that tiny
might be aUowed to def(!ndant. Hiiiil: »/' /; v
A. v. Ainle,/, m. H. .')2I.
An application for an increased emiim ' fee
must Ih3 to thu judge who tried the ea
rick v. Mumitrh fun. ('<>., 3 L. J. H(
Chamb. — Burns.
The rule that a person cannot tax a eoiinsil
fee in his own case does not extend tu liix i)art-
ner. Hi'iiileriou v. Cwnn; 3 L. J. 'Jft. -(.'. 1,.
Chamb. —Bums.
A counsel fee will be taxed between party and
party, even though the counsel did nut atteiul
tho trial, lb.
Where in a country cause the record was
entered and afterwards settled before tlie udin-
mission day, the master, upon eoiiHuItiiig the
chief justice of the C'ommon I'leas, refused tu
allow the costs of entering the record or euiinsil
fee. Hhitjntvn v. Whelaii, 8 L .1. 72. -('. I,
(Jhamb. — Burns.
Where, before the commission day, an onler
had been obtained to postpone the trial m [lav-
ment of costs, and plaintiff afterwards, on tii: ■
ation of costs, claimed a counsel fee as pal ' .'>
the partner of plaintiff 's attorney, without?: '-'ic-
ing when or how paid ; ami it ajipeared tliat
the record hatl not been entered fur trial, the
master refused to tax the counsel fee ; ami a
summons for a revision of his taxation was did
charged. Afanari/ v. I)(inh, 9 L. J. 3l*7.--t'. I-
Chamb. — Morrison.
On motion by plaintiffs to revise taxation :-
Held, that under rule of court of H. T. '2^2 Vict.
18 Q. B. 58, no single judge is authorized to graiit
an order for a larger counsel fee than the tariti
specifies, nor can the master allow more as be-
tween party and party. If brief for secomi
851
,,o«n«el wan (u-tnatly prenftrfl.t
I at the trial nhmiltl initkit
COSTS.
K22
hit noridcntal
no (litlVn'iiir.
U»hirrl ill., •J4 t^. M. U.'>7.
//(IHI '' «
Hi'M, ttmt ft ooiiimol fet!
the trir.I, nlthdiiKh the vtms
tratiihi withcmt iM-iiig '
175- C.
Hut)p<fniu*i1 hut not
ilciiihi \v ht'tiit'i' they
iiiiiy 111! tiixfil lor
in rcfcrreil to arhi
cntori'il tiiioii. W'ltiiil V.
L ('llfttllh. (iftlt.
rly MIkwciI to the plaiiiliit a sum oi «wm; \n\w
■ thf iiliiintiff to her BolioitorH, thoy lieiiif,' uIho
uiisei, f'lr fouiihel fees on the exftiiiinatioii and
.»riniriif the oaiiHo. linrkr v. linrh, '21 Chy.
The iiiirtioH to an alimony Huit eniiw^nttMl to a
ilecrei!. wherchy ilofemlant wa» onlereil lortli-
withtii "li'iy "10 )tiaintirt' the nuni of ififi, and
»11 ih»liiir»eMient« in the unit an lietween Holieitr)r
Mill client, ineliulinK sheriff'8 fees on execntionH ;
,iuh iliHliiirHcmentii to he taxed and allowi^d hy
the niMter of thin court :-- Held, that in pro-
iwliiiK ii"<l«''" t'"" 'l"*"""" *''»■■ ">i«<^«-«' '"'"l I""-
iwrly Mlowcd to the plaintiff a sum of ^^W i)aid
liy ■ ■ ■ ""'■' '•■•'*
aiUiiii'
-JrSee /.r./.V v. «a//, '22 (^. B. f.l'i.
A idunnel foe on lioariiiK in not taxable until
thu liUiBC \\w lieon set down for heariuK, and
luitioe (if hearing given, Ihira,- v. i)n; 3 V\\y.
I'hamb. 141. Strong.
(h) Term Frr.
Nn tcnu fee is allowe«l after judgment. Will
V. /-Ill, 1 <'• !'• <^h"nih. 216. BuruB.
Nor unlcsH there has lieeu some iiroceoding
(luring the tenu
24(}. B. 357.
Ham d iix. v. Lanhcr ct nl.
(c) Wdnciu Fee* and ,Subp>en<M.
The master may examine into the truth of an
affidavit of dishursements for witnesses' ex-
peniics, 4e., or counsel's receipt fur fees. Doe
i BuuUon V, Switzer, 1 C. L. Chamb. 83.— P. C.
-Macaulay.
A migiK liner of a witness, David instead of
Daniel, »(iuld he immaterial. /lam e.t ux.
L(MkreN(/., 24Q. B. 357.
Ab to the suras i)aid to and txpended by wit-
nesses, defendant oeing bound to a strict com-
pliance with the 165th rule of T. T. 20 Vict.,
an(l the master having authority to make all
such inquires as he might deem necessary to
latisfy himself, the court refused to give any
dire(^ioD8 as to such inquiries. Ih.
All witnesses should be paid before taxation,
and only actual disbursements proved are tax-
able, not mere engagements to pay. Ih.
Held, that service of subpoenas made by one of
the defendants could not be allowed, unless such
defendant held a warrant or written authority
from the sheriff to act as his baiUff on the occa-
sion, lb.
Semble, that subpoenas being mesne process,
under sec. 277 of C. L. P. Act, no fees can be
allowed for mileage or service, if not made by
the sheriff. McLean v. Evans, 3 P. R. 154. —
C.L Chamb. -A. Wilson.
Where witnesses are silbpoenMd and paid by
both parties to a suit, the successful party is
entitled to the costs of such witnesses from the
other. 76.
Where witncssei arfl
eaileil, the iniutter Hliould
wtTe nei'i*Miiry or not, uml all'iw or rcfuHc their
ex|MiiiH«!M aerordingly. //i.
In triaU under the < '(introverted Klection Act
of 1871, till' 1 imtH luid witiit'HK fciN, iiMil the
niateriitlity of eviiU'hi'i', are in the dimTetion of
the nuiHter, Hulijeet to the court, lui in other
trials. /Ip Pn-^ain KliHinn, W'l i). B. 'Ml
The master will generally lie Hole Judge as to
how many witneHMei4 hIiuII lie allowed for as to
one isHue. ///.
Where the master allowed fees to seventy
witnesHCN HuliiHentUMl, lint not called, on charges
of bribery liy the |Kititi(iner, the election having
Im^cii avoided on the evidence of other wit-
iieHKes : Meld, that the master exi I'cised a pro-
per dincretioii, oven though respondent's att<ir-
luiy swore he Ixdieved the witnesses would have
dis[iroved the I'liargcs they «vere called to prove ;
the facts that each witness was Hiilipienaed to
prove aiipeiiiiiig on the petitioner's brief put in
before tlie nuister, and it apiioaring also by affi-
davit that the witnesses were subptenacd bonA.
tide, and were material. / h.
There is no i)reHuniption in a trial under thu
Controverted Klcctions Act of 1871 arising from
the number of witnesses subpienaed th.at they
are unnecessarily called. The presumption is
to the contrary. Ih.
(losts of evidence to disprove the merits of the
defence set up must not be incurred without
consideration, and \ill not be allowed as of
course. IMfonl x. 7W»/, fi P. H. 154.— Chy.
Chamb. — .Strong, on appeal from Holmested,
Rrfervf.
Fee on subpitina by direction of the court to
be allowed on taxations under the tariff of costs
where the amount itself is properly taxable.
Slfpfien V. Simp-ioti, 3 I. .T. N. S. 102.— M. 0.—
Taylor, iiecretari/
A public officer in charge of documents for
which he is responsible, and attending as a
witness in his public capacity and in relation to
matters connected with nis office, will be allowed
professional witness fees of $4 a day. In re
NeUon, 2 Chy. Chamb. 2.52. -Van Koughnet.
Where the parties to a cause had produced
and examined their witnesses at Toronto, all of
whom resided at a distance therefrom, and in
close proximity to one of the circuit towns, the
court, while awarding the general costs of tho
cause to defendant, refused him the costs of the
attendance of his witnesses. Ledyard v. Mc-
Lean, 10 Chy. 139.
(e) Costs in tlie Cause.
The costs of a special jury are costs in the
cause, not costs ot the day. Whitehead v.
Brmmi, 2 0. S. 345.
Costs of applying to rescind a judge's order to
allow County Court costs, were held not to be
costs in the cause. Cameron v. Campbell, 1 P.
E, 170.— C. L. Chamb.— Bums.
The phrase "costs in the cause," generally
means the costs only of the party who is snc-
cescf ul in the cause. But where the phrase was
used in an award as follows : " We also order
I i
' ''1
1 '■
I!
i ■ '^WFW
823
COSTS.
824
rmsr
and award that the plaintiiTand defendants shall
each pay half the costs of the cause, and that
the defendants shall pay all tlic costs of the
reference and award, our costs of which refer-
ence and award !is arbitratora we assess at the
sum of ^201.50:"- Held, that the words "costs
in the cause," meant the whole costs of the
plaintifif and defendants. Scott v. The Orand
Trunk It. W. Co., 3 P. R. 276.— 0. L. Chanib.—
Hichards.
The costs of an application under sec. 82, of
the .Surrogate Court Act, C. S. U. C. c. 18, for
an assignment of a probate Iwnd, in order to an
action thereon at common law, cannot be taxed
as costs in the action, but should be recovered
as diimages consequent on default. CIomsoii v.
Post ft a!., 6 K J. 141.— C. L. Chamb. —Draper.
The costs of shewing cause against a rule for
setting aside an award, are costs in the cause,
and the successful party is entitled thereto, al-
though no mention of them is made in the rule.
The C'orjwatibn of Esse.c v. Parke, 12 C. V. 159.
After issue joined on demurrer, but a month
before term, plaintiiT prepared demurrer books.
The ciwe was subseiiuently referred to arbitra-
tion. Costs of the pleadings, &c. , to be costs in
the cause : — Held, that the preparation by the
plaintiff of the demurrer books was reasonable,
and that he nuist he allowed costs of the same on
taxation as part of the necessary pioceedings in
the cause before the reference. Elliott v.
Northern Amnranrc Co., 6 P. K. 111. — C. L.
Ghamb. — A. Wilson.
The costs of a commission to take e\'idence in
a foreign country, form part of the costs of the
cause. Colhorne v Thomas. 4 Chy. 169.
^Vhere a cause is withdrawn on account of
the absence of a necessary witness for the plain-
tiff, and he shews that he has made dilligent
efforts to secure the attendance of such witness
who is residing within the jurisdiction, but fails
to secure it, the costs of putting off the exami-
nation will, as a general rule, ne costs in the
cause. In all other cases, the costs will be dis-
Sosed of aceordiag to circumstances and in the
iscretion of the judge. Paltison v. McNab, 12
Chy. 483.
Where defendant serves a notice of motion,
but before the return thereof the plaintiff takes
out on precipe and serves an order to dismiss
his bill, the defendant caimot bring on his mo-
tion, but he is entitled to tax his costs therefor,
under the order to dismiss, as costs in the cause.
Piirdy V. Ftrria, I Chy. Chamb. 303.— Mowat.
The plaintiff hail obtained a decree with costs
against defendant. Afterwards, by consent, a
supplemental order varying the decree was
ma<te, which was silent as to costs :— Held, that
the costs of such order and proceedings there-
under were not costs in the cause, and could not
be taxed against the defendant. Attorney-Oen-
eral v. Taylor, 1 Chy. Chamb. 362. — Spragge.
A raotinn was granted for postponing the hear-
ing and examination of a cause, on the grounds
of the absence of a material witness after no-
tice of hearing had been given, although the
cause had been at issue for some months pre-
vious. The costs of such a motion are costs in
the cause. Qraliam v. Maclull, 2 Chy. Chamb,
876.— Taylor, Secretary.
It is the practice to make the costs of no,.
poning the hearing of a cause, where sufli'ien,
grounds are shown for such postponemeiit cn?t.
ni the cause. Hcct v. Aftorneydencral •> ci,
Chamb. 386.— Taylor, Secretary. ' " '
Where after notice of motion to stay prnceod
ings until the costs of a former suit for the same
cause of action should l>e paid, such cosis art
paid, the costs of the motion to stay prdceedint,
will be made costs in the cause. Little v Jfat
kim, 3 Chy. Chamb. 78.— Taylor, SecrHnn/.
The decree in a cause gave the plaintiff the
general costs thereof :— Held, that this did m
carry the costs of rehearing an interlncutnn
order made refusing an injunction, and whicii
order was reversed on rehearing ; the practice
requiring that, where costs of rcliearing are in.
tonded to be given they must Im) expressly meii-
tioned in the decree or order giving the eosts nf
the cause. Moanoji v. Mamn, 20 Cny. 406.
(f) Pkadimjs and Affidavits.
The master disallowed a great portion of the
pleadings, which he considered unnecessary, ami
the court discharged with costs a rule nisi to re-
vise the taxation. Malloch v. Grier, 2 Q. B. 113,
After issue joined on demurrer, but a month
liefore term, plaintiff prepared demurrer Imoka.
The case was subsequently referred to arliitra
tion, costs of the pleadings, &c. , to lie costs in
the cause :— Held, that the preparation by the
plaintiff of the demurrer books was reasonable,
and that he must be allowed costs of the sainc
on taxation as part of the necessary proceetlings
in the cause before the reference. EllioH v.
Northern Asturance Co., 6 P. R. 111.— C. L
Chamb. — A. Wilson.
Unnecessary lengthy pleadings ordered to he
reduced by the master at the party's exi)ense.-
Cannda Permanent Bitildituj and Saving» So-
ciety V. Harris, 16 C. P. 54.
Where plaintiff filed many useless affidavits
and had a great many repetitions as well as idle
statements on information and Ijclief in atii
davits filed, a direction was given to the master
that they should not be allowed to the plaintiff
on taxation, though he discharged defendant's
summons with costs. Hooper v. Biirku, 1 L J,
N. S. 273.— C. L. Chamb.— Draper.
Costs for superfluous or irrehivant matter
introduced into affidavits will not be allowed,
and in extreme cases the judge will disalidw
costs for the whole affidavit. Corky v. Sohbiti,
L. J. 225— Chy. Chamb. —Richards.
(g) Other MiUters.
Where separate actions were brought against
maker and endorsers of a note, and upon a ile-
murrer to the replication judgiiient was given
for defendant, and the plamtins made oneaj^
plication to amend in the three cases :— Held,
that defendant was only entitled to the costs u
for one case, in attending to oppose it HeU,
also, that as to the onUnary fee disbuned to
counsel, to argue the demurrer in the three
cases, and the ordinary taxable costs occaaioued
to defendant by the demurrer in each case, tiut
they might be allowed to defendant Bad oi
B. N. A. V. Ainky, 7 Q. B. 621.
821
;s of post.
i sutticient
iient, cnsti
m', i Chy.
ly ])mfe(!i\
)r the same
I costs are
iroccedina
nk V. //»ir.
rrelnrxj.
plaintiff the
his (lid iKit
iterlncuton
and which
the practice
iriiig are in-
[)re8sly men-
: the costs oi
ly. m.
7.S'.
rtion of the
Bccssary, ami
lie nisi to re-
•2Q. B, 113.
but a month
iiirrer Imokn.
;d to arhitra-
) be costs in
•ation by the
la reasonable,
of the same
y proceedings
!e. EllwU V.
lll.-C. L
>nlered to he
's exjjense.—
Savinijii So-
less affidavits
well as idle
lliclief in ath-
Ito the master
the plaintiff
ll defendant's
\iirkij, 1 L. J.
Ivaut matter
be allowed,
■will disallow
|(-i/ V. RMiii,
[lught agaimt
k upon a (le-
lit was given
liadc oneay-
tses :— HeM,
[the costs u
leit. HeU,
liliBbursed to
lin the tht«e
Is occttioned
Teh ewe, thrt
It, Bad 0!
825
COSTS.
SM
Before a party can tax the costs of obtaining
exemplincation of judgment, he must serve
-ijiej. side with notice to admit, underrule
ME T 1842 ; but the master may allow the
.•nsts' of procuring a copy of the roll. Con;i>'r v.
McKechnk, 1 C. 1 Chamb. 220. -Burns.
One of several defendants who, in an action of
tort ioins his co-defendants in plea of not guilty,
iiDon which a verdict is rendered in his Tavour
a^nstplaintifif, though plaintifT recovers against
his CD-defendants, is entitled to a proportion of
the taxed costs of defence. //»H<»»f/*/o»t y. <J.z
H al 10 L, J. 46.— 0. L. Chamb. —Morrison.
Attendance to hear judgment should only be
taxed once, that is, attendance when judgment
is delivered. Ham el ux. v. Las/ier Hal., 24
Q. B. 357.
Defendants could not tax the costs of enlarging
plaintiffs' rule for their own convenience. Jh.
Plaintiff having attended under defendants'
notice, without being paid, which she was not
hound to do, the court refused to direct her ex-
wnses to be deducted from defendants' costs. / h.
Taxmg officers should not allow any items for
which there are not proper vouchers, and these
vouchers, (except briefs, &c.) should be filed.
intoHV. Moulds, i P. R. 101. -C. L. Chamb.—
Morrison.
On revision of a taxation by deputy clerks of
the crown, the master is not to allow any items
which are not verified by vouchers which have
heen filed on the original taxation. //).
Held, that the costs of a Chamber application
to stay proceedings until term, in a superior
court case tried at the County Court under the
bw Reform Act, 1868, are taxable under a rule
for a new trial upon payment of costs, the
County Court judge having refused to stay pro-
(m\\na.—Merc}tant)i Bank v. Bom, 6 P. R. 215.
-M. O.-Dalton, C. 0. .t- P.
WTiere there were two suits by a solicitor for
the same object, the master refused in one of the
two, without a special order, to tax as between
party and party, more than part of the costs,
snd it appearing thi*t, as lietween solicitor and
client, no part of that bill could have been
recovered, the court refused to interfere with
the taxation. Spetice v. C'lemow, 15 Chy. 584.
The costs iiayable out of an estate to persons
j not trustees thereof, were directed to lie taxed
1 between party and party only. Oray v. Hatch,
1 18 Chy. 72.
If a cause irregularly set down for hearing by
I the phtintiff is struck out upon defendant s
I motion in Chambers with costo, this entitles the
I defendant to tax costs of the application only,
Itnd not the costs of preparing for hearing.
FriftKh V. Winkler, 3 Chy. Chamb. 141.— Boyd,
I Jf(Mter.
The first part of General Order 315 applies to
[ cases where several persons are acting in the
lume interest, snd where costs are to 1^ appor-
I tioned among them. It does not empower the
I muter to deprive any one of his entire costs
I where the decree rives costs generally. A sur-
vivina trustee, and the representatives of a de-
IceMedtrastee, are not within the rule which
I prevents trustees severing in their defuuce at
the risk of having but one set of costs l)etween
them. Beid v. Sleplieiis, 3 Chy. Chamb. 372. —
Boyd, Mauler.
Married women joined with their husbands in
an application for tax.ation of costs :— Held, that
notwithstivnding the late act (33 Vict. c. 16,) the
married women must in suuh cases have a next
friend. In re Spencer el al, 19 Chy. 467.
Where the result of a motion for an interlo-
cutory injunction depended upon a q .estion of
law and not of fact, and the motion was reheanl
at the instance of the defendant, against whom
an injunction had been ordered, the court, on re-
versing such order, cave the defendant the costs
of the motion as well as of the rehearing. The,
Fire Ejiintjuisher Co. v. The North Western
(Bahcock) Fire Extinuuisher Co., 20 Chy, 625.
3. Bevimm of Taj:ation.
If plaintiffs on verdict are allowed oi Jy Dis-
trict Court costs, and defendant neglect to take
out a rule to be present at the taxation, the
court will not direct a revision that defendant's
costs may be deducted. McCall et al. v. Cameron,
1 Q. B. 414.— 1'. C— Macaulay.
A judge in Chaiiiliers can order a revision of
taxation. Doe d.' Boulton v. iSwitzer, 1 C. li.
Chamb. 83. — Macaulay.
A revision was granted, as defendant's attor-
ney was not present at the *;axation, and some
of the items were questionable. Halfpenny v.
Kelly, 1 C. L. Chamb. 174. — Macaulay.
Defendant's costs not having been taxed with
sufficient liberality, as between attorney and
client, a revision was ordered on that ground.
Cameron V. Cam/iMl, 1 P. R. 170.— C. L. Chamb.
— Bums.
A revision of taxation was ordered on contra-
dictory affidavits as to the payments sworn to
in the affidavit of disbursements. Kmilh v. Mc-
Kay, 1 P. R. 178.— C. L. Chamb.— Robinson.
Where, on the 27th June, the master, to whom
certain bills had been referred, certified that
there was £30 10s. due by the attorneys to their
clients, which sum the clients on 7th July
received from the attorneys under and pursuant
to the allocatur, a summons obtained on 26th
August for a revision, upon the ground that
certain retainers had been improperly allowed,
was discharged. In re Smith d; Henderson, two.,
•ic, 9 L. J. 265.— C. L. Chamb.— Robinson.
Quiere, whether under C. L. P. Act, 1856, sec,
12, a judge's onler is not necessary to have taxa-
tion revised by the principal clerk. Cochrane v.
Scott and Cochrane v. /?ow, 3 P. R. 32.— C. L.
Chamb. — Burns.
Judgment was entered in on outer county,
and full costs taxed. On the 20th of July, 1860,
the taxation was revised in Toronto, under C.
L. P. Act, sec. 331, and £2 15s. 7d. struck off.
On the 2nd of August the judge who tried the
cause gave a certificate or memorandum, stating,
among other things, that he declined to certify
that it was a proper case to be withdrawn from
the inferior court, and on this the taxing officer,
without any notice to or consent of the plaintiff,
on the 3rd of August, 1860, reduced the coats to
Division Court costs, and gave a certificate that
i ' 1
;j> 'i
tir '\
I
827
COSTS.
8!8
he had done so, which was served o;i the plain-
tiff's attorney. InOctolier, 1 8(>2, defendant sued
tlie phiintiff for enforcing the execution for too
much, which was the tirst notice phuntitf luvd
of the reduction, and some time after that the
master made an entry on the roll of tl-',« last
revision, and tlic reduction thereby of the costs
to £11 3s. 9d., adding "therefore let the said
plaintiff have execution therefor, " &c. : Held,
that the proceeding on the ,Srd of August, which
was not shewn to have been a contuniation or
adjournment of the revision of the '20th of .Tiily,
and the subseijuent entry on the roll was wholly
unauthorized, and must be set aside. S/iicru v.
Cnrriqm, 23 Q. B. 585.
Where the taxation is not objected to before
the master, the court is slow to interfere, but -
Held, that the circumstances shewn in this case
sufficiently explained the omission. Stviimrt v.
JarrU, 27 Q. B. 407 ; 2 L. J. N. S. 330.
The bill of costs in this cause having been
taxed by the local master, the plaintiff" paid the
amount taxed without j)rote8t : — Held, that he
still was entitled to a revision before the master
at Toronto. Kormnnn v. Tookeij, P. R. 112;
Elliott V. NoHlu'rn Anxurnna' Co., 10 Fi. J. N. S.
16.— M. O.— Dalton, C. C. <{• P.
An appeal from a master's certificate of costs
should be to the court, not to a judg>3 in Cham-
l>er8. Grahame v. Amlerxon, 2 Chy. Ohamb. 303.
— VanKoughnet.
The proper mode of appealing from the mas-
ter's certihcatc of taxation is by motion, and not
by petition. //* re Ponton, 15 Chy. 355.
Although the courts will interfere and order
a retaxation of costs, even after a judgment has
been olitained 'for them, when the overcharges
are gross and excessive, yet a client must come
promptly, more especially when the relationship
of solicitor or client has ceased to exist, to
obtain such relief, and it will not be granted if
the amount overpaid is small. Re Scott — Scott
V. Buniham, 3 Chy. Chamb. 467. —Taylor,
Referee.
Where the alleged excess overpaid was only
$15, making about one-twelfth of the whole bill,
and the application was not made until after
great delay, the referee refused, an order for
retaxation, and his decision was uphehl on
appeal Ih,
The proper style of proceedings in such a
matter is in the matter of the solicitor only,
without the style of any cause. / h.
The claim for which a suit had been brought
having been compromised, the (piestion by
whom the costs of the suit should be borne, was
determined by the referee in Chambers, on a
summary application by consent of the parties.
Upon appeal Strong, V. C. , refused to interfere
with the discretion exercisetl by the referee.
as to coats. GarforUi v. C'airnn, 9 1* J 2f. Ji.
212.— Chy. Chamb.— Holmested, Referee.
An order to retax a bill of costs, on the ground
that, through inadvertence, no person attended
on behalf of the plaintiff, was refused, no im-
proper items being pointed out in the bill as
taxed. Eastvian v. Eastman, 4 L. J. N. S. 322.
— Chy. Chamb. — Taylor, Secretari/.
The taxing officer on revision of bills of costs
taxed by a Rtci*' '■■ wtcr, has power under gea«-
ral orders 311 and 312, not only to striken
items improperly allowed, but also u> rest!!!
items improperly struck out, and KeiieraIK.T
review the taxation. Ken m v. Yeitulf,, i ?
K. 00.— M. O. -Taylor, MuMer. •' ''' ^ ^'
Kvidence cannot be received })y a taxiim «
cer to make costs payable otherwise tiian th
apiKjar to l)e by the order awarding them wh''
oxplaine<l by the onlinary rules of coustra*"
tion. 11).
4. Costs of Taxation and Revimm.
Semble, that if defendant does not rule ft,
plaintiff; or attend taxation, he will only k
allowed a revision on payment of costs of k
and of revision. Hdlfpennif v. Kellii 1 c i
Chamb. 174— Macaulay. /. "^u
AVHiere defendant asks the plaintiff for tht
amount of costs in order to settle, and the plain
tiff merely gives the amount, and refuses a bill
in detail, defendant 'v " .-ot be allowed the cnsU
of an application for tion. Semble, it miBht
be otherwise if the (, undant paid the amonnt
of costs into court. But the plaintiff may W
compelled to refer his bill for taxation, and will
not Ik) allowed costs for attending such onlcr
Sutherland v. Rntheste, 1 C. L. Chamb. 178-
Macaulay.
An order had been obtained by the solicitor
for the taxation of his bill against a client. The
client did not attend upon the taxation, and in
consequence the master refused to allow the
solicitor the costs of the taxation : -Held rieht
In re Kerr, 2 Chy. Chamb. 47 ; 2 L J. N. S. |)2 ''
—Chy. Chamb.— Taylor, Secretary.
5. OUutr Cases.
Arbitrator's fees may 1m referred to the master
for taxation. Scott v. The Grand Trunk R 11'
Co., 10 L. J. 72.— C. L Chamb.— Richardi
AVhere the master is directed by a decree to
tax the costs of the suit, he has no jurisdiction
to decline taxing them, even if he find that the
amount due does not exceed $200, and that the
suit might have been brought in the t'ounk
(Jourt. McLeoil v. Millar, 12 Chy. 194.
An application for leave to add a counsel fee
paid ami omitted was granted, on payment »f
costs, such costs being set off against the tued
costs ; but the adding of such item was not to
affect the (piestion of the costs of taxation. See
R« Whalley, 2 Beav. 576. Jn re Vrmrford v.
Croinltie, 2 Chy. Chamb. 13.— Taylor, Seerti-irf.
When the registrar is directed to fix the
amount of interlocutory costs and to aid him in
doing so, a bill of costs is prepared and tiied,
the bill of costs should be filed. Saiindnit.
Furnivall, 2 Chy. Chamb. 55. — VanKoughnet
The defendant is not entitled to the delireiy
of any bill he is not entitled to have taxed ; »iid
where a bill has been taxed it will not again be
referred, even with other or sulwequent iv^
except on proof of special circumstaucea. M
v. Wright, 2 Chy. Chamb. 96.— Mowat.
An application to tax costs should be on ptii-
tiou and not by motion. lb.
X, U.VXECES
]i
829
COSTS.
830
Where an order wm applied for for the taxa-
tion of costs incurred in suita in the Common
Pleas, the County Court and Division Court,
according to the terms of an alleged agreement
to the rate of remuneration, an order was
LTante<l with a direction to the master to ascer-
tain whether any valid agreement existed between
th "parties. Ke WetenKall. 4 Chy. Chamb. 82.-
Taylor, Befirci'.
Where the amount in dispute is under ^200,
but the defendant is out of the jurisdiction, the
nUintiff is entitled to coats on the higher scale.
&v..SM///.18Chy.49o.
\ UNXECESSARV or VkXATIOUS PROrKEPTNOS.
Wliaii the plaintiff made charges of improper
conduct against the administratrix, which wer«
not sustained in evidence, he was ordered to pay
all costs other than of an ordinary administra-
tion suit. nuihjinK v. McXcil, 9 Chy. .305.
When a plaintiff, without proper enquiry into
facts, and with undue haste, tiled a bill in this
court to enforce a judgment at law, in which
he made charges of fraudulent practices a^gainst
the defendant, the court, while granting him the
relief to whicli he was strictly entitled, refused
li m his costs of the suit, and ordered him to pay
tiie costs of the defendant. Nealc v. Whiter, 9
C'liy. 261.
^^^lere an answer improperly impuened the
motives of the solicitor who filed the bill, the
court, althougli it dismissed the bill with costs,
directed the costs of the answer to be disallowed
t« the defendant. MrKtnzie v. YichUnij, 11
Chy. 406.
Where a party moves in court for what should
jirojHirly be moved for in Chamlxsrs, the ooui-t
Mill not allow him any costs of the application
even if the motion be granted. Miiruvii v.
Coiirdifi/, 10 e'liy. 52.
The court, although unable upon the evidence
to grant the relief asked, refjised defendants
their costs up to the original hearing, in eonse
uuence of the untruthfulness «tf their answers.
Maym v. MvUard, 10 Chy. 130.
Where a cause was set down to be heard on
further directions, for the purpose of having
remedied a defect in the master's report, the
court, although it made the order asked, refused
the plaintiff costs other than those of a motion
I in Chambers ; the onler being such as might
I have been obtained on motion there. K'uuj v.
I CoBHor, 10 Chy. 364.
Where, instead of demurring to the lull, the
\ defendant put in an answer, and went to an ex-
\ amination and hearing, the court, on dismissing
\ the bill, gave the defendant costs only as npon a
I demurrer. Brouney. Vram, 14 Chy. ()77.
Where an executor obtained the usual onler
^for the administration for his testator's estate,
[ind, upon the hearing on further dii-eetions, no
treason was shewn for invoking the aid (»f the
[court, and the guanlian of the infants did not
lobject iu any way to the course taken by the
fexccutor, the court refused Iwth parties their
|««t«, Si»-inij(r V. ('hike, 15 Chy. «l>4.
ThepUintiff having failetl in that part of u
lit which rendered a bill necessary, and as the
other objects of the suit could have been
attained by less expensive proceedings, and it
being considered that in case the latter course
had Dcen a<lopted the costs to the insolvent
estate would have been about equal to the costs
incurred by it in defending the suit, no costs
were given to either party. Darlimi v. Wilnoti,
16 Chy. 255.
In the case of small estates, an administration
suit can only be justified where every possible
means of avt)iding the suit has Ixsen exhausted
before suit brought. MrAmlmr v. LaFUnnvie,
19 Chy. 193.
Where a next friend fileil a bill for a minor,
without having <d)served this rule, and the suit
did not appear to have been necessary in the
interests of the minor, the next friend was charged
witli all the costs, lb.
Wheix; a bill had been filed on a mortgage on
which only a small sum for interest had become
due two days previously, and the defendant's
solicitor had called at the plaintiff's solicitor's
office and left word that he was ready to pay
the money, the court refused the plaintiff his
costs, and lield, that the bill wiis unnecessarily
and improperly tiled. McLean v. CroM, ^ L'hy.
Chamb. 4.12. — Spragge.
Where the object of a suit has been attained,
the proper course is for the plaintiff', if he seek
coats, to apply to the defendant to have the
(juestion of costs disposed of on motion ; unless
he does so, he will not be given the extra costs
occasioned by going on to a hearing. Wehh v.
Mc Arthur, 3 Chy. Chamb. .3«4.— Taylor, Jfeferee.
Qutere, will such a motion l)e entertained at
all, except by consent. Ih,
Sendde, if the defendant refuse consent to the
costs l)eing disposed of on motion, the plaintiff
will get his extra costs of going to hearing. Jh.
See Oure Dlttr'ift Miituul Fire /iisiirniire Co. v.
Webster, 10 L. J. 190, p. 831.
XT. Mkans ok Recovering Costs.
1 . liji Order or Kreciitioil.
On the 1st March, an order was made setting
a8i<le a judgment on i)aynient of costs within a
week. On the 8th ^Iarch, the costs were ten-
dered, and through error refused. On the same
day the defendant, treating the judgment as set
asidci tiled and served his pleas, together with
a demand of replication. Plaintiffs afterwards
demandeil the costs, an<l on non-payment issued
execution : — Held, I. That the tender of costs
was in suthcient time ; 2. That the tender was
a compliance with the order setting aside the
judgment on tennf ; 4. That where the conduct
of tlie defendant's attorney was vexatious, this
was a ground for refusing costs of the applica-
tion. I'laintitls afterwards, to avoid juclgment
of mm pros, took issue on the pleas, and then
executed a power t>f attorney, authorizing a party
to <lemand payment of costs, payment of which
was refused on the ground that the power of
attorney was not counte'^igned by the president
of the company :— Held, !. That the duty to
pay costs continued, notwithstanding the refusal
to receive them when tendered ; 2. That the
tiling of th« replication was not, under the cir-
,' ^
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831
COSTS.
8J2
cumstances, a waiver of plaintiff 's right to costs ;
3. That the plaintiffs were entitled to a substan-
tial order directing the payment of the costs,
and the costs of the application. Quiere, as to
plaintiffs' right, under the circumstances, to costs,
netwoen attorney and client, to be paid by the
attorney for the defendant, as a punishment for
his vexatious conduct. Qore DMriet Mutual
Fire Jnmtranee Co. v. Webster, 10 L J. 190. —
C L. Chamb. — Draper.
Where an order for payment of costs is sought
which may, under C. S. U. C. c. 24, s. 19, be
followed by execution, as in this instance, for
payment of costs of a prosecution for libel under
C. S. U. C. c. 103, the service of the summons must
in general be personal. The court may, under
special circumstances, dispense with personal
service. Where the defendant is abroad, or it is
known where he lives, personal service will not
be dispensed with, unless it be made to api>ear
that defendant is keeping out of the way to
evatle service ; and even in this case, it is ])y no
means clear that personal service will be dis-
pensed with. Service on the attorney, on the
record, and on the wife of the defendant, it not
being shown that he was keeping out of the M'ay
to avoid service, was held insufficient, though it
was shewn that he had left Upper Canada, and
gone to reside in the United States. Iteyina v.
Simpson, 10 L. J. 220.— C. L. Chamb.— A. Wilson.
Held, that a "reasonable time" need not be
given in which to pay the costs of the day, &c.,
after taxation, but that the order, &c., may be
made a rule of court, &c., the day after taxation.
.Smith V. Crotik, 9 L. J. N. S. 237.— P. C— A.
Wilson.
A party who has to pay debt and costs on a
final judgment on verdict, nonsuit, demurrer, or
otherwise, in the ordinary course of a cause, is
not entitled to any time to pay them after pro-
per proceedings had to entitle the other party to
collect them ; nor is any demand for payment
before execution required. A party entitled to
costs may proceed to collect the same by execu-
tion immediately after revision, without waiting
a "reasonable time" for payment. Coolitl</e v.
The Bank of Montreal, G P. R, 73.— P. C— A.
Wilson.
The plaintiff taxed costs on an order on lOtli
Moy- These costs were reviso'' "> Toronto on
22nd May, and on the same afternoon were de-
manded of defendant's attorney in Toronto, the
defendant himself living in Belleville. On 23rd
May, the order for costs was made a rule of
court : — Held, that the rule was regular. Sm ith
V. Cronk, 6 P. R. 80.— P. C.— A. Wilson.
It is irregular to take out a ti. fa. the instant
costs have been taxed without allowing a reason-
able time to the solicitor whose client lias to pay
them to communicate the result of the taxation.
Culleti V. Cullen, 2 Chy. Chamb. 94.— Mowat.
A solicitor whose costs have been taxed on
the application of the client and not paid, a H. fa.
haviuK been returned nulla bona, is entitled to
an onier for the examination of his client touch-
ing his estate and effects. Ne Blain, 1 Chy.
Chamb. 345.— Mowat.
By sec. 7 of order 4(>, (orders of 1853,) sub-
poenas for costs are abolished. The effect of this
onler upon orders giving costs issued previously
to the time it took effect is, that au order must
be obtained, fixing a day for payment of the
costs when taxed. Saul v. Cooper, 4 Chy. 61
An order had been obtained directing a defen.
dant, Mrs. G., to pay to the plaintiff certiij
costs :— Held, that the order was a jiidometi
and the defendant a judgment debtor, within fi,
meaning of the C. S. U. C. c. 24, s. 41 asfi
tended by 27 & 28 Vict. c. 25, and an exVinia
tion of the defendant touching her alnlitytnuv
the costs was allowed. Lorell wGihutm, () p p'
132, Chy. Chamb.— Spragge, on appeal fc^
Holniested, Referee.
2. Bji Staying Proceedings in Second AfiUm m
Suit.
(a) In U'huf Canes.
The court refused t.) wtay proceedings m\-
payment of costs in two other suits pending U
ilie same cause. Richmoixd, v. CampMl f T
2 Vict.
When the second action appears to he vei
atious, the court will stay the proceedings till
the costs of the first action be paid, finmv
Jiuttan, 1 C. L. Chamb. 20.— Macaulay.
Non-payment of costs of the day, is not i
sufficient ground for staying proceedings iiutil
such costs are paid, except perhaps in an extreme
case. Becket v. Durand, 6 L J. 15.— C. L
Chamb. — Draper.
Ill an action of trespass de Iwnis, in tht
County Court, the judge stayed proceedings, on
it appearing tliat defendants had l>een sued for j
the same causes in the County Court of another
county, in which action the proceedings against
them were held to be coruin non-judice, ami
whereof the costs, though taxed, had not been I
paid. A mandamus to compel the judge to pro- 1
ceed to try this case, was refused on the ground
that the defendants being primarily interested,
had a right to be before the court and beard.
Semble, that the proceedings sliould not have i
been stayed. In re the Judge oftlu ('uuiiliiCotirt \
of Perth in suit ofDollery v. " Whaley, 12 C. P, 552,
The plaintitt, having sued in the County tVuii,
proved a claim beyond the jurisdiction, where
upon the jury were discharged. He then brought
his action in this court, and upon defenJaut's
application an order was made staying pruceeil-
ings until the plaintiff should discuntnme the
County Court action and pay the costs of it.
The order was rescinded, for, 1. The County
Court having no jurisdicti<ni, the plaintiff coiJJ
not discontinue the suit there, which would l)e
a proceeding in the cause ; and, 2. This suitbeiig
for a debt, and not brought oppressively or vtx-
atiously, should not have been stayed. Hmljm
V. Graham, 26 Q. B. 127.
An action was prosecuted to trial in the name
of a plaintiff', who was dead before the wni-
uiencement of the suit, but of this the attorney
was ignorant. The death of plaintiff being shewn
at trial, the record was struck out l)y the juite.
An action was subsequently brought for the
same cause by the parties proiwrly entitled to
sue :— Held, that this action was not vexatiouJy
brought, so as to entitle defendant to stay pm-
ceedings in it until the costs of the first «re
paid. Davis v. Welter, 5 P. R. 150. -I'. L
Chamb, — Hagarty.
833
COSTS.
834
Held, that 29 & 30 Vict. c. 42, s. 1, does not
refer to' costs of the day in same suit, and conse-
auently proceedings cannot Ije stayed in a suit
in which costs of the day have not been paid.
Held nevertheless, that this can be done on the
irround of abuse of the process of the court,
uhf-re the proceedings are vexatious. McMhoh
V Twta, 6 P- R- «5--<^- I- Chanib. -DiUton.
C. C. <{• /*.— Oalt.
Where a plaintiff files a bill for relief, and
both parties dying after answer, a new )h11
settingforth substantially the same facts is filed
bv the plaintiff's heir against defendant's heir,
uraying no relief but a discovery, and to per-
petuate the testimony of witnesses, proceednigs
in the second suit will not be stayed till the
costs of the first are paid. Semble, that if both
suite were instituted by the same individual,
and if he were liable to pay the costs of the first,
he would not be prevented from prosecuting the
second until he had paid those costs. Slri-et v.
Kijckman, 1 Chy. 215.
In prosecuting a claim to land before the
referee of titles, a contestant, served with notice,
will not be prevented from asserting his rights
until payment of costs of proceedings instituted
by him against the claimant, in respect of the
uroperty m question, ordered to be paid by the
contestant. Shepherd v. Haj/ball, 13 Chy. 681.
Non-payment of the untaxed costs of an un-
auccessful apphcation in a former suit is no bar
to a motion for a like purpose in another suit
Iwtweeu the same parties. The Erie ami XiKijara
R. II'. Vo. V. (Uitt, 15 Chy. 507.
Aplaintiff suing in formil paui)eris is not liable
to have his suit stayed until he has paid the
oosts at law, or of a former suit in this court,
touching the same subject matter, unless it can
!« shewn that the proceedings are vexatious.
(■(1*1/ V. Mc('i>n, 3 Chy. Chamb. 24.— Taylor,
i\ftnlary.
Wliere therefore a plaintifl' had been ordered
t« ^ive security for prior costs at law, and by
luiother unler the time for giving security had
lieen limited, and in default the bill ordered to
k' dismissed, and the plaintiff was afterwards
aihuitteil to sne in formft pauperis, the two
unlers for spying security were set aside. / b.
Where costs are given to a plaintiff suing in
fiinnd pauperis, they are in general, and unless
otherwise ordered, dives costs. / />.
XIl. Mis(;kli.aneoii.s Casks.
.\u application for a judge's certificate, that a
cause is a proper cause for a special jury, must
lie made immediately after the trial on the same
(lay the cause is tried. BinUey v. Dexjardine,
Tay. 177.
After issue joined, plaintiff and defendant
I settled the action on condition of defendant pay-
1 ing the costs incurred, which were stated at a
certain sum by plaintiff's attorney, and defen-
dant gave his note therefor payable before the
[ Msiws. Oil the first day of the assizes, defen-
I daiit's agent tendered the amount, reserving to
1 himself the right of taxation ; and the plaintiff's
■ attorney refusetl to receive it, except uncondi-
tionally. The agent afterwards tendered it
uuconditionally, but it was then refiised, be-
i>3
cause additional costs had been incurred ; and
the plaintiff 's attorney took a verdict for nomi-
nal damages. The •lourt set the verdict aside on
payment of the sura originally agreed upon, and
made the plaintiff's attorney pay the costs of
the application. Jiiittun v. Robertson, 2 Q. B. 37.
Where a plaintiff in an action against a
magistrate for acting maliciously and without
reasonable or probable cause, being guilty of
the offence of which he was convicted, was,
under the operation of C. S. U. C. c. 12(5, ?.
17, restricted to the recovery of only three cents
damages, he was held not to be entitled to
any costs whatever. Jfaackv. v. Adnmnon, 10 L.
J. 270.— C. L. Chamb.— Draper.
Held, that the 18th and l!)th sees, of C. S. V.
C. c. 12(>, taken together must be limited "to
any such actiim" not provided for in section 17
of the same act. fb.
Held, that no one can have costs taxed to him
who did not incur costs. //*.
A judge ill Chambers may make an order on a
deputy clerk of the crown to refund costs im-
properly received. Mcintosh v. Pollock; 2 C. L.
Chamb. 209.— Bums.
Upon an application for a rule to tax the costs
of proceedings on an indictment for nuisance
under 5 & (j Will. & Mary, c. 33, and that they
should 1)0 allowed to a particular person, the
court refused the rule. A side bar rule is granted
in England to tax these costs aa a matter of
course, but this application went further. lieijUia
V. Uordon ami Heijina v. Jiobson, 8 C. P. 58.
Judgment creilitors having executions in the
sheriff' s hands under whieh a seizure had been
made, signed an agreement giving the defendant
an extension of time for payment on certain
conditions therein mentioned. Upwards of
thirty days afterwards defendant assigned under
the insolvent acts ; the conditicris of the agree-
ment having been so far jierformed : — Held, I .
That the writs were not in the sheriff's hands
for execution, and that the assignment made
more than thirty days after their delivery to the
sheriff" took priority ; 2. That the seizing credi-
tors hud no lien for their costs under ss. 3, 12,
13, of the act of 18(55, the lien there given apply-
ing to the law of Quel)ec. In re Rona, 3 r. J{.
394.-C. L. Chamb.— J. Wilson.
Held, overruling the above case, that under
29 Vict. 0. 18, sec. 13, a judgment creditor who
had an execution in the sheriff's hands at the
making of the assignment, was entitled to rank
for his costs of the judgment as a privileged
creditor against the insolvent. In re lit 'den, an
Insolvent, 29 Q. B. 202.
Held, that the jury in an action for slander
had no right to give costs by their verdict.
Campbell v. Linton, 27 Q. B. 5(53.
In this case the verdict, though irregularly
obtained, ii 's set aside without costs, as defen-
dant's attorney had not raised the objection
upon which the verdict was set aside until after
it had been obtained, and his conduct was want-
ing ill candour in not drawing attention to such
objections to the procedure as he intended to
insist upon until the day before the trial, al-
though he might have done so some two months
before. Cuahman el al. v. Jteid, 20 C. P. 147.
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COUNTY ATTORNEY
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Held, that the clerk of the Division Court is
not bound, tinder sec. <>3, sub. 3 of the ABsess-
mcnt Act, to receive an appeal unless the sum
of 1^2 be deposited with him as security for the
costs of the appeal. If so disposed he may give
credit for the amount, and if he do so, the
appeal is properly entered and ought to l)e heard
by the county judge. In Re Paine v. Town of
Brnntford, 9 I^ J. N. 8. 261— C. C— Jones,
Where the only defence set up failed, and the
ground on which the court decided against the
plaintiff was not taken, or even pointed to in
any manner by the answer, the court, though it
dismissed the bill, refused defendant his costs
of the suit. MeAnnanyy. TurnhuU, 10 Chy. 208.
Where a ifkotion stands over, and afterwards
the party moving gives notice of abandoning tlie
application, the costs which are given against
him are not those of an abandoned motion, but
of a motion refused. DennUon v. Devlin, 11
Chy. 84.
The court being dissatisfied with the mode in
wliich the argument was conducted, and the
brief of the pleadings had been prepared,
though it allowed a demurrer to the bill, liqui-
dated the costs at JIO only. McFaihjen v.
Stewart, 11 Chy. 272.
A., an execution creditor of B., was made a
defendant to a suit as claiming an interest in
certain chattels which the plaintiff claimed as
prior mortgagee. A. tiled an answer luid dis-
claimer, but it appeared that his solicitor hod
given instructions to the sheriff to seize the
interest of the debtor therein, if any : — Held,
that before answering the bill he should have
notified the plaintiff that he made no claim to
the chattels, and that, not having done so, he
was not entitled to the costs of the suit. Lym-
burner v. Clarke, 12 Chy. 130.
Where defendants set up a defence to a bill,
which if tenable would have formed sufficient
grounds for their having taken steps to set aside
the transaction, which it was now sought to
enforce, but had not done so, although twelve
years had elapsed since the act was done which
they questioned, and which it was shewn they
had all the while been aware of, the court, under
the circumstances, ordered them to pay the costs
of the suit. Miller v. Oslrander, 12 Chy. 349.
The beneficial owner of land omitted to have
the paper title thereto in his own name, and
thus enabled his son, who held such title, to
mislead parties into accepting a mortgage thereon
from the soiu The court, though unable to
refuse him relief, in a suit brought to set aside
such mortgage, under the circumstances, refused
him his costs. Gray v. Voucher, 15 Chy. 419.
Where an application has been refused with
costs, and a motion is made for leave to make a
new application of the same nature, on further
evidence, the new evidence must lie produced,
and the costs of the previous application paid.
Anon, 1 Chy. Chamb. 196.— VanKoughnet.
On motion for leave to answer notwithstanding
an order pro confesso, where the proposed answer
was not properly sworn : — Held, that it could
only be granted on the terms of paying the costs
of the application and of the onler pro confesso ;
but, if tne answer had been properly sworn, the
application would have been allowed withogt
costs. Merrill v. Evans, 1 Chy. Chamb. 303, _
VanKoughnet.
Under a sorjuestration against the defendant,
property on his lend had been seized, to whiili
a third party laid claim, and which the bailif
released to the claimant upon his own unJer-
taking. Upon inquiry by the plaintiff into t!it
circumstances, he released the property, but wf
until after notice given by the claimant ofi
motion in the nature of one for an exaniinatim
pro interesse suo : — Held, that the claimant, U
leaving his property in the custody of (lefendanj
had brought the difficulty on himself, ami wat
therefore not entitled to the costs of the appli-
cation. JIanvy v. Taylor, 1 Chy. t'liamb. 353,
—VanKoughnet.
The rule of this court, that when the subieit
matter of a suit is settled by defendant l)efure
decree, the question of costs cannot Ije Jisiwsttl
of on a summary application by plaintiff, unless
the defendant consents, applies to mortgage
suits. A defendant in such a case may insist on
the suit going to hearing, as there may be grouinlj
on which he may be relieved from costa. Where
under such circumstances the referee refused au
application by plaintiff for the payment by
defendant of the coste of the suit, au appeal from
such order was dismissed with costs. McLeun
v. Cross, 3 Chy. Chamb. 432.— Spraggc.
The plaintiff appealetl from the report of tlio
master, stating eleven objections thereto. On
the argument he abandoned one, two were fouml
in his favour, and the remaining eigitt were
decided against him, but they emljraced only
four distinct questions. Under tlie circum-
stances, the court, instead of giving one .set of
costs to the plaintiff and another to tlie defen
dant, directed the costs of the appeal generally
to be taxed to the defendants, deducting tliea'-
from one-fourth in respect of the partial success
of the plaintiff Fenjumn v. Froiitiniu; 21 Chy.
188.
COUNCIL.
See Municipal Cokpokations.
COUNSEL.
See Barrister-.at-Law.
COUNTY ATTORNEY.
See Clerk of the Peace.
In 1858 the plaintiff was appointed county
attorney for Wentworth. In' May, 1862, the
person who had for many years Inien clerk of the
peace for that county died, and in August fol-
lowing defendant was appointed to succewi hiiu
in such office. O. S. U. C. c. 10(5, s. 7, enacts
that any clerk of the peace appointed after thit
act "shall be ex officio county attorney for tb«
county of which he is clerk of the peace ; '-KeR
that (lefendant upon his appointment as clerk of
the peace became also county attorney, altfaoagb
jslfei
H- ■ 1 .
83T
COtTNTY COURTS.
838
0(1 without
amb. 303.-
3 (lufcnilant,
!(l, to whidi
1 the hailij
own uniUt-
utifF into t!it
erty, but m\
laimant of >
exonunatiiiB
claimant, l)
:)f (lefendanj,
self, anil wa
of tLeajipli-
I'liamb. 353,
n the 8nbjeti
endant Iwfure
it 1k! clisiwstj
aintiff, unless
to mortgagt
may insist un
lay be gromnU
costs. When
ree refused au
payment by
lu appeal from
sts. MeLtcm
)ragge.
1 report of the
I thereto. Uu
;wo were fouiul
ig eight were
embraced only
■ the cirt'uui-
I'iug one set of
Ir to the defen-
ipeal generally
.uoting there-
partial success
ihh; "21 Chy.
rioNs.
Y.
.CE.
bintcd county
lay, 1862, the
Jn clerk of the
|n August ful-
I succeed him
I), 8. 7, enacts
led after th«t
orney for the
lace; -Kelii,
Int as clerk of
ley, although
the plaintiff '» commission had not been othei-
wise revoked, and lie had received no notice of
anv chanijc in his position. Roltertmn v. Free-
mi, 22 h B. 298.
A county attorney practising law only so far
M required l>y that office, need not take out a
certScate. Rt Coleman, 33 Q. B. 51.
K connty attorney and clerk of the peace may
maintain an action against the corporation of
the nounty for breach of duty in not providing
necessary and proper accomniodation for him as
such officer, as required by 29 & 30 Vict. c. 51,
, 419, and may recover, by way of damages in
such action, rent paid by him to procure such
accommodation. Lees v. The Cortm-ation of the
CowiKj of Cnrlton, 33 Q. B. 409.
The court house in which plaintiff previously
hail his office was burned, and the county council
informally offered him certain rooms in another
building leased by them. The plaintiff con-
sidering them insufficient, as in fact they were,
hire<l others at $11 per month ; and haNnng sent
in his bill to the council for seventeen months,
they passed a resolution to pay him 89.S.50
(king one-half) in full of his claim, which sum
he awwards received, and signed the receipt
and the check therefor, which purjwrted to be
in accordance with the resolution : — Held, that
he was bound by such settlement, and could not
recover more in respect of the seventeen months'
rent ; hut that he might recover the full rent
paid by him subsequent to the resolution. Ih.
V. Error and Appeal from.
1. Error, 847.
2. When Appeal lies, 848.
3. Bond and Siibsetjucnl Prooceedinijn, 850.
4. Settinij down Case for A njumenl, 852.
5. Cvuls, 852.
6. Other Cases, 863.
VI. Miscellaneous Case.s, 854.
VII. Certiorari to IlEMovr (Jauses From—
See Certiorari.
VIII. Ai'i'LicATioN KOR County Court Costs— -
See Costs.
IX. Referring Causes from Superior
Courts to County Courts, and
VICE versa— .S're Trial.
COUNTY COURTS.
I, Jl'DOF«
1. Actions and Proceedings Against, 838.
2. Other Cases, 839.
3. In Insolvency — See Bankruptcy and
Insolvency.
4. Of Divimn Court -- Sec Division
(Courts.
5. Of Surrogate Court — See Surrogate
Court.
fi. Mandamus to-^ee Mandamus.
7. Prohibition to— See Prohibition.
8, Appeal to from the Court of Revision —
See A.SSE.SSMENT and Taxes.
II. Clerk, 839.
Ill, Jukisdiction.
1. Artions qf Contract, 839.
2. Actions of Tort, 840.
3. Repleuin, 841.
4. Penal Actions, 841.
A. Titk to Land in Questioti, 842.
(a) Application for Full Cost* — See
Costs.
6, Equitabk Juritdietion, 843.
7. Other Gases, 844.
IV. Pkacticb and Procbdurk.
I. WriU of Trial Mid Enquiry, 846.
% (XAer Cbm, 846.
I. Judge.
1. Actions and Proceedings Against
The court will not order an attachment against
a judge of a District Court for not oljeying a cer-
tiorari, unless it l)e shewn clearly that he neted
contumaciously. In re Judge of the District
Court of the District of Niagara, 3 O. S. 437.
A judge of a County Court cvnuot be arrested
upon mesne or final process. Adams v. Ackland,
7 Q. B. 211.
Impeachment of — Proceedings and finding of
the court of impeachment. See In re Hughes, 8
L. J. 203.
A county judge lieing served with a sub-
poena duces tecum to produce a deed did not
attend ; and, on motion for an attachment,
excused his absence on the ground of important
private business, urging also that he obtained
the deed and became possessed of his informa-
tion as an attorney, that he had a lien on the
deed, and that he was entitled to witness fees
as an .ittorney : — Held, that he was not so
entitled, and should have attended, and the rule
was matlo .absolute. Deadman v. Etoen, 27 Q.
B. 176.
C. S. U. C. c. 15, s. 5, as amended by 29
Vict. c. 30, enacts, that no County Court judge
shall directly or indirectly practice in the pro-
fession of the law .as counsel, attorney, solicitor,
or notary public, or as a conveyancer, or do any
manner of conveyancing, or prepare any papers
or documents to be used in any court of this
Province, under the penalty of forfeiture of
office and $400. The declaration alleged that
defendant, being such judge, did in certain pro-
ceedings in the Surrogate Court prepare certain
papers and documents to bo used in said court,
to wit, the petition of one G., &c. (desc ibing
the papers). Defendant pleaded that he di I not
practise in the profession of the law as an
attorney for said G. , or as such attorney prepare
any paiters or documents to be used in said Sur-
rogate Court. The evidence shewed that defen-
dtmt prepared gratuitously for G., who was a
widow in poor circumstuncea, the petition, bond,
and affidavits required to enable her to obtain ad-
ministration to her late husband: — Held, that
the plea was proved, and a verdict was there-
fore entered for defendant on the leave reserved.
Per Draper, C. J. of Appeal, and Morrison, J.,
the evidence did not bnng defendant within th«
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COUNTY COURTS.
8*1
m
m
spirit of the act or the mischief against which
it was tliroctccl, which was the doing the acts
prnhihited for profit. Allen (j. t. v. Jarm, 3
2 Q. B. 5(!.
2. Other Vaw.».
A deputy judge of tl»c County C'ourt declined,
on the ground that he was the jiartner of the
plaintiff s attorney, to entertain an application
ny the defendant for a supersedeas l>eca»»se he
had not been charged in execution within the
term next after judgment ■ — Held, that the de-
fendant was entitled to be discharged from cus-
tody under a writ of habeas corpus. lieUl v.
Drake, 4 \\ U. 141.— C. I.. Chamb.— A. Wilson.
Hold, that the fact of a defendant being a
county judge, where the plaintiff might otlier-
wiso have proceeded under the Overholding
Tenants Act of loilb, and thereby liave obtained
a more summary remedy, is a sufficient reason
to change the place of trial in an action of cject-
n)ent. Anonymow, 4 F. R. ,310. — C L. Chamb. —
Draper.
Quaere, whether the circumstance of defen-
dant being a county judge is not in itself suffi-
cient to give plaintiff the right to have the
place of trial changed on grounds of public
l)olicy. Jb.
Held, that when a reference is made from Nisi
Prius to a judge of a County Court by name,
adding his description, judge of a CJounty Court,
and not to him as judge of the County Court, he
is entitled to his fees as such arbitrator. Wood
V. Foster, 6 P. E. 175.— C. L. Chamb.— Gait.
See Smith v. Rooneij, 12 Q. B. 661, p. 847 ;
Leslie v. Emmons, 26 Q. B. 243, p. 847.
II. Clerk.
A clerk of the County Court, being also ex
officio deputy clerk of the crown and clerk of
assize, is privileged from arrest only while
engaged in nis otncial duties, or while going to
ana returning from his office, and this court there-
fore discharged a rule to prohibit the t'ounty
Court judge from issuing an order of commitment
against such officer. In re. Maekay v. Govdson,
27 Q. B. 263.
III. Jurisdiction.
1. Actions of Contract,
The inferior courts can entertain a suit for the
balance remaining due upon a written under-
taking to pay a larger sum. Loixjworth v. MeKay
et al., 6 O. S. 149.
Where there are ojwn running accounts be-
tween the plaintiff and the defendant, mode up
of divisible items, not exceeding in each £25,
the defendant can only recover by way of set-
off the difference between £25 ancl the amount
due to the plaintiff. If the defendant, however,
desire to recover more than will balance the
plaintiff's demand, he must give notice of or
plead a set-off to the £25, and claim in his plea
or notice to have the amount between the plain-
tiff's demand and the .£25 allowed to him. Mc-
Lean, J., diss., being of opinion that a defen-
dant might recover a balance to any amount
wing
beyond the £25, the juri«dictif)n not 1
limited as to a defendant's set-off. /{hm^iH v
Conway, 5 Q. B. S'lfi.
Under 8 Vict. c. 13, s. 5, tlio District ('hum,
have jurisdiction in actions on covenant U> mv
a sum certain to £,'50. Billinffs v. Sleolle in
B. 022. ' ■ ^
The declaration contained three counts, claim.
ing each £50, but the damages were Liiil only at
£i'»0, and the ]iarticulars were, for at'count ren.
dercd £55 158., less by cash £22 10s. - £3,1 ,-„
At the trial the plaintiff relied on tlie count Lj
account stated, and produced a draft by hinisdi
on defendant for £55 15s. Id., "being the la].
ance in full of your account ;" and proved that
when presented defendant acknowledgeil th(
amount to be correct, but refused to .iivuiit it
as he was afraid he would Ikj sued. A venlict
having been found for £,S4 .Ss. .Id., Hdd that
the claim was within the jurisdiction ; un,!,
aenible, that the evidence of an account stfitcj
was sutlicient. MrMurtry v. Minim, 14 (^. B, ififi,
The plaintiff, by special endorsement on liis
sunnuovis, claimed for cash lent and interest
and for a lathe sold, £1)3 l.Ss. 8d., and in iiii
particulars £91 Is. 4<1. On the trial he ]jro.
duced a paper signed by the defendant, sjiecifv.
ing that lie wjis to pay plaintiff for tiie lathe tiic
invoice price, .ami "the charges of freight,
duties, &c.":--Held, clearly an .amount li(nii'.
dated by the act of the parties, and thcrefdrc
within the jurisdiction. Wdllliri'li/f v. fhmi
18 Q. B. 158.
Upon the evidence in the County flourt it
appeared that the plaintiff', under the eomnion
counts, was claiming an amount of J771, re-
duced to ^.304 by credit given, but not liy pay.
ment or by set-off agreed to be taken as payment;
Held, that the 3.304 was not an amount h(|ui
d.ated or ascertained by the act of the parties,
and that the claim therefore was lieyond the
jurisdicticm. A plaintiff cannot by giving credit
for a set-off compel defen<l.ant to set it up, (ir
give tlie County Court jurisdiction Fiiniiml v.
Snnniler.% 26 Q. B. 1 19. 8ee, however, Fimml
V. Saunders, 2 L. ,J. N. 8. 245.— C. L Chamh,
— J. Wilson.
The plaintiff in a County Court suit gave ereiht
on a claim of f .300 ( for board, &c. ) f or f 1 70, lieiiig
the value of an article received by him from
defendant. Held, that although the agreement
as to setting off the (me against the other lie
made before the debt for which the aetion is
brought is contracted, yet, if the amount ti) k
allowed to defendant for the article can k
treated as a payment of a portion of plaintitf s
claim, and not merely an unliquidated setuff
against it, or the transaction can be vicwcil as a
sale first of the article upon an agreement that
payment of it was to be made in ooard, &c., to
be furnished by plaintiff to defendant— the court
has jurisdiction. Flemiwj v. Liriiiystoiic, 6 P
II. 63.— C. L. Chamb.— Owyime,
2. Actions of Tort.
The District Courts have no jurisdiction in ai
aetion for a false return. Bell v. Jareit, i Q.
B. 423.
Where in matters of tort relating to p«nonil
chattels, title to land is brought in qmiict,
Hi
though I
Tmiiior
The d.
delivered
tured, *i
with ft l)r
of the lU^f
tiff had
Held, tha
in the Coi
Chmh. 1!
841
COUNTY COtlBTS.
Hi
thoush incidentally the court has no juris.liction.
7VrtiM0'- V. Ifolromlx; 7 Q. H- •'>48.
The declaration (ttatcd tliat the plaintiff had
lelivcred certain cattle to defendant to be pas-
tureil ftc., and to be re-delivered on request
with ft breach, that throtigh the negli^'enee, ftc,
of the defendant, the cattle were lost. The j dain -
tiff had a verdict for £0, and no certiticate :
Held that the action might have been brought
in the County Court. HimU v. Denimn, 1 C. I*
(Ihamb. 194. -Burns.
An action on the case, founded on the statute
of Merton for distraining beasts of the plough,
mav 1)6 maintained in the County Court. Mr-
alljors. Balmi, 2 C. L Chan.b. SOC. -Burns.
In trespass for entering plaintiff's close and
takinK his goods defendant pleaded not guilty,
that the goods were not the i)Iaintiff's, anil justi-
tication under a fi. fa. 'J'itle to land was not
hrouRht in question :— Held, that the plaintiff
(in a venlict for *175 was clearly not efititled to
full costs without a certificate. Shwaii v. Jnrvin,
27 Q. B. 4()7.
.1. Repkmi.
The mere fact of the plaintiff in his declaration
in replevin stating the value of the goods dis-
trained at a higher sum than .£15, does not shew
tliat the action could not have been brought in
ft Dintrict Court. The plaintiff', to entitle him-
self to Queen's Bench costs, must prove at the
trial that the goods are really of greater value.
Macaulay, J., diss. Whederx. S'lme, 3 Q. B. 2(>r).
The Replevin Act, 4 Will. IV. c. 7, gives juris-
diction to the District Ctmrts only in cases of
leizure for distress. Foster v. Miller, 5 Q. B. 509.
To an action against a sheriff for taking an in-
mfficietit replevm Iwnd, he pleaded that the
goods replevied were worth more than £15, and
that BO the writ of replevin, being sued out of
the District Court, was void : — Held, plea bad.
hrkewlM v. Thomas, 7 Q. B. 30.
In replevin defendants avowed u^der a dis-
tress for rent, to which the plaintiff pleaded
that he did not hold the land as tenant, &c. , as
in the avowry alleged : — Held, that the title
upon this plea did not necessarily come in
I question, and that the record therefore did nut
I sncw a cause of action Iwjyond the jurisdiction.
o'BoVh v. Wchh el al. , 28 Q. B. 394.
4. Penal Aetions.
The County Courts have no jurisdiction in
Ipenal actions, unless expressly given them by
litatute; and for this purpose they were held not
Ito be included in tne words "any court of
Irecord in Canada West," used in 4 & 5 Vict. c.
112.. O'iJeiHi/q. t. v. ^//ff«, 11 Q. B. 526. See
\&tkm q. t. V. Gues», 1 L. J. N. S. 19.— C. L.
Chamb,— A. Wilson,
Bat they were held to have jurisdiction in an
iction for the penalty imposed by sec. 81 of C.
M. U. C. c. 6, for selling spirituoua or fermented
Tiquon on polling days. /,. re Judge of the
County CouH of the County of Elyin, in a caMe of
Vtdcdftv. Widd^eld, 12 C. P. 41L
And, under C. S. IT. C. c. 124, a. 2, to try an
action for a penalty against a justice of the
peace, where the [lenalty claimed does not exceed
1*80. /irosh q. t. v. TiKjiinrt, Hi C. \\ 415.
5. Title to Land in (fiientum.
Where in matters of tort relating to personal
chattels, title to land is brought in question,
though incidentally, the court has no jurisdic-
tion. Tmiiior V. Ilulrimihe, 7 Q. B. 548.
In trespass, defendant pleaded pleas bringing
the title to land in (juesticm, accompanying them
with the aHiilavit reqitired by 8 Vict. c. 13, s'
13. A nonsuit having Iwen ordered :- Held,
upon appeal, that the etl'eet of the i>leas was to
oust the jurisdiction altogether : that the judge
should therefore have refusotl to entertain the
case ; and that the judgment of nimsuit must
be reversed. J'un'lci/ v. Whitrheiul, i({ (.),. B. 589.
One H. sohl to tlefcndant 4iimb er standing on
his land, anil afterwards conveyed and gave
possession of the land to the plaintiff. The de-
fendant proceeded to take off the timber : -Hehl,
tluvt the title to land was not in (piestion, and
that an action for trespass to the land would lie
in tlie ( bounty Court. Hnileif v. Uleeeker, t) \i.
.1. N. S. 99. C. (?. -Sherwood.
A plea was pleaded bringing title to land in
question, and after a verdict for the plaintiff a
new trial was granted, on the ground that the
court had no jurisdiction. On appeal, the judg-
ment was reversed, as the court having no
jurisdiction could not grant a new trial. The
absence of the affidavit required by the statute
with such plea will not warrant the court in
proceeding, but woidd l)e ground for setting aside
the plea. Viimphell v. JJnridmii, 19 Q. B. 222.
Declaration for converting the plaintiff's dwel-
ling house, with the doors and windows, &c.
Plea, that the goods were not the plaintiff's. At
the trial intheCountyCourt.itapiiearedthatthe
plaintiff claimed as assignee of a mortgage of the
land on which the house stood, <tnd that the dis-
{)iite was whether the house was part of the f ree-
lold. A verdict having been rendereil for the
pl.-iintiff, was afterwards set aside, on the ground
that the title to the land came in (juestion, iind
that the case should have been stopped upon the
plaintift''8 evi<lence : — Held, that this wjvs right,
and the judgment below was affirmed. Porfuian
v. Patterson, 21 Q. B. 237.
Title to land does not, on mere suggestion,
necessarily come in question untler a plea of Not
(luilty by statute. The general rule is, that it
must not only be pleatled, but lie verified by
affidavit. In this case, which was an appeal
from the County Court :--Held, that though de-
fendant might have shewn, upon the plea of Not
Guilty, that for want uf title the plaintiff could
not maintain the action for injury to his premises,
yet that in the absence of such proof, or a bonft
fide tender thereof, the mere suggestion of it did
not preclude the County Court from trying the
real cause of action, which was within its juris*
diction. Ball v. The Grand Trunk R. W. Co. 16
C. P. 252.
In ejectment in the Conntv Court, under 23
Vict. c. 43, it appeared that the defendant held
the laud under a verbal lease for a year, from
I ■•
m
IH
84S
COUNTY COtfRTB.
84(
7th June, from one R., with the nrrangisment
that if B. Hold defendant would ^'vc up [xmHCH-
Hion At the end of the year. H., in .lanuary,
Hohl to the iilaintiiT, of whioh defenihint had
notice, and promised to give up posseHsion, and
the plaintiff gave defenclant a notice to (|iiit on
the 8th June, his term having expireil. At the
trial the deed from B. to tlie plaintiff ami tlic
notice to (piit were proved : Held, a case
within the statute ; that defendant's tenn was
put an end to on the 7tii .June, and that there
was no dispute as to title to exclude the juris-
diution, which was clearly not ousted hy the
mere ])roof of the plaintifl' s paper title. Xfwtx
V. McMiHan, 20 Q. B. 415.
A County Court judge, at the trial of a case,
upon the application of plaintiff 's counsel, struck
fiut ft count of the declaration and all pleadings
relating thereto, because the ]ileadings there-
under (uisted his jurisdiction, hy hriiiLring title
to land in (juestion : — Held, that li had the
i lower to do so. FilSimnunit v. Mr/nii/i''', •'> ''•
{. lia— C. li. Chaml).-(i Wynne.
Where a County (,'ourt cause is entered for
trial at the assizes, under .T2 Vict. c. (i, s. 17,
8ub-s. '2 (The Law Reform Act, 18(58), the juris-
diution is the same only as if it had been tried
in the County Court. Where in such a case,
therefore, the title to land came in question, and
a verdict was entered for ilefendant : Held,
that the proceedings were coram non judice, and
the verdict was set aside. Wrilirrall v. (iaiioir,
.30 y. B. 1.
Declaration, that one A. devised the N. .J of
lot 15 to his son W. in fee, and the S. i to his
wife J. for life, and after her death to W. in fee :
that <luring W. 's life, he and his mother, J.,
leased to defendant the whole lot for five years
at an annual rent, and thiit W. <lied soon after,
having devised his land to the ]ilaintit}s in fee.
And tlie plaintiffs claimed from defendant a {Mir-
tioii of the first year's rent, which they alleged
they were entitled to, and which the defendant
had paid to.l. after notice. Equitable plea, that
^V. by his will devised all his lands to the
plaintiff in trust for the sole benefit of J. during
her life, under which she claimed and received
from them the rent : — Held, that upon these
pleadings the title to land was brought in (jues-
tion, and the jurisdiction ousted. /'((((• (/ ol. v.
AfcCrow, 31 Q. B. 599.
G. EijuUaMe Jurlidirtion.
The act giving toCounty Courts equitable juris-
diction, in relation to mortgages, when the sum
does not exceed £50, does not apply when de-
fendant is resident out of the jurisdiction, fjaw-
rason v. Fitzijerald, 9 Chy. .S71.
A County Court has no equitable jurisdiction
where all the defendants (lo not reside in the
county. McLeod v. Millar, 12 Chy. 194.
Wliere a bill is tiled to foreclose in respect of
a demand not exceeding £50, the plaintiff will
be entitled to his full costs if it appear that
there is an incumbrance beyond that sum.
Hyman v. Roots, 11 Chy. 202.
Where a plaintiff files a bill in the Court of
Chancery to foreclose a mortgage for a sum within
the jurisdiction of the County Court, no costs
will be allowed him. The fact that the def eiulaut
is resident in a county other than whore th
land is situate, will not vary this rule. f;,j,„„J
V. I'lirvan, 1 Chy. (!hamb. 11. Spraggu.
A suit in the County Court is only reiiidval,!,
into this court, under the 67th section „f ii.
County Courts' Act (C. S. U. C. c. I,-,|, whel
the County (^ourt has Jurisdiction in the matter
but the "nature of the claim roinU.rH jj ,
jiroper cose to bo withdrawn from tin; juriRdic
tion of the County Court, and di«iiiweil of in n,
( 'ourt of < Ihancery. " Mntiin v. Mitchrll \ ( i,,.
Chand). .384.— Mowat.
Where creditors whose claims in the aui/reijai,
wore under Jj200, obtained the usual adimnistra
tion order, and it was shewn that the value «(
the estate inchuling lanrls, was under >«800, anl
although the real estate, which it was iicucssarv
to sell to satisfy such claims, was incumlHireil
by mortgage to an amount which tipgetlitT with
these claims exceeded !j200, it was held that tht
plaintiffs could not reckon the niortgage debt fur
the purposes of this suit, and therefore that the
case Wivs within the jurisdiction of the ('mintv
( 'ourt; and the plaintiffs were refiiHcd thoircoBb.
Ill rv. Saitf- //rt/icriii'ifiiu v. Stcrtii.t, liH'hy. (iS.'l
An adniinistr.ition suit by a person interested
to an amount less than 18200 in an estate, whicl
considerably exceeded ^800, and against whicii
adebtjiroved (and the only debt jirovedlexeeeileil
that sum, was hehl not to be within the e(|nity
jurisdiction of the County Court, (tnhlmiih v
aoUhmith, 17 Chy. 21.3.
Where the plaintiff's claim on the premise*,
together with the amount of a subsequent mort-
gage, exceeded ;$200, it was held to be iHiyumi
the jurisdiction of the Coimty Court. Semlile,
The necessity for an order for substitutional
service would apjwar to be sufficient reason for j
filing a bill in this court which might otherwiw
have lieen filed in the County Court. Smth v.
Mcflroij, 2 Chy. Chamb. 93.— Taylor, Scrrrtary.
A mortgagee exercised the power of sale con-
tained in his security and realized 93.50. On a
bill tiled by the mortgagor for an account, it
appeared that after deducting the amount linc
on the mortgage at the time of sale, together
with the costs of the sale .ind of an action nf
ejectment, aa also a payment maile to the plain
tiff before suit, the balance coming tfl tlie
plaintiff was reduced to ^1 39. The plaintitF wu
still hehl entitled to his full costs, "the subject
matter involvc<l" being the |350. McUilM'lii
V. Griffin, 20 Chy. 81.
7. Ot/i^r (Jims.
The jury in a District Court cannot try, as an
issue of fact, whether the Division Court gave
judgment on insufficient evidence, nor whether
the plaintiff abandoned the residue of a large
demand, so as to give the court jurisdiction,
IJi/nfti v. Jiiirroives, 5 Q. B. 253.
A County Court judge cannot grant a qno
warranto during term time in the superior
courts. Heijina ex rel. Okemn v. Horman, 13
Q. B. 140.
Under 16 Vict. c. 175, a County Court judge
can certify for immediate execution in cases Kit
down to him by writ of trial, as well as in otter
oases, the 53rd clause of 8 Vict. c. 13, being in
effect overruled. Riack et al. v. Hali; ?M-
840
COUNTY COURTS.
«4fl
.,„ V Ifill, 11 Q. B- 3»« : J/'-A'rt.v V. Hall, John-
Kvory court of record has the jiower to imniah
for coiiteiniit ; but if the court in one of infurior
juriHtliution, the Hiii)erior court iimy intervene
1 i. .* i: e :....;_.i: .i.;.... i...
Held, that n» a caBe .Won.hng in one of the ^^,^,, ^^^^^..^^ ..'Hurpation of jur.s.liction l.y
.uvHirior courts, an. taken down for trial to t he .^ ),,,, .^^ //,,,^ ^J, „^^, j^J^^ „,. ,;,^ ^,^^^J^^
fivVnty t'ourt, under 23 \ ict. c 4.. h. 4 the ] ,,,,,^^., .,^,,, (,,,,,,^, • (J,^^.„ 04 (<y. 'J14. '
in.lfffl of the I'ourt below can order immediate -' •' •'
iSutioii. (mi,'V.h'r V. /hnnilfon, UV. W -.'98. i
\Vlier«nu action for not rejiairing tlie road, in
which till) venue is local, had lieeii brought in
the IViinty (."ourt of a county different from
that in which the road was Hituate, and a verdict
for the plaintiff confirmed in term, this court al-
lowutl the appeal from such judgment, but made
,10 order, a»the court below, having no jurisdic-
tion could not Ik; ordered to do anything in the
c«»e'. Ferijiison v. Corimnitiou of J/oirirX; "i.") t,J.
B. 547.
Held 1 That the citing of a trustee to appear
toforc the judge of the county court, under sec-
tion 130 et seij. of the Scluxd Act, (. . fS. U. ( .
ch 64, is "ut necessarily a bar to proceeding
by arbitration under the "iDth section ; 2. 'I'hat
under sec. 130 the judge of the county court has
no jurisdiction, except when a secretary-trea-
surer "has in his possession, books, moneys,
4c which caine into his possession as secretary-
treasurer, and which he wrongfully holds and
refuses to dohver up," &c., and such secretary-
treasurer must Im) guilty of misdemeanour, con-
teinulatetl by the 130th clause, before the ju.lge
can interfere. Ftrrk v. ( 'he»lerjielil IOC 1'. 27'J.
Held, that the judge of the (louiity Court has
uower to allow pleas to be added in cases sent
Sown from the superior courts to l)e tried by
him, as well as in actions commenced in his own
court. Kimj v. ahui/onl, 1 1 (.1 W 490.
On error from the Oounty Court, it appeared
jjy the record that after issue joined a ven. fae.
nas awarded, and then the postea stated an
agreement by the parties to leave the case to the
judge, the decision to be looked upon as the
verdict of a jury. Afterwards it was entered
that "the said judge has determined, and the
, court is of opinion and has ordered," that the
I defendant should imy to the plaintiff a sum
^ named. Then followed an entry of judgment
[, for that sum and costs :— Held, that the judg-
J meat was erroue.ius, for no venlict was directed
i or enteretl to support it. Qua-re, whether the
1 judge hail power to direct a verdict. JontM v.
I Smth, 23 y. B. 485.
Held, affirming the judgment of the C!ounty
I Court, and following Mcl'hersou i\ Forrester,
y. B. 302— that an action would not lie
[ ill a County Court upon a Division Court judg-
ement. Donnflly v. Steteart, 25 Q. B. .S98.
The Overholding Tenancy Act, 31 Viet. c. 20,
EO., gives jurisdiction to the county judge in
{cues where the tenancy has been determined by
ilorfeiture for breach of contract. X(uh v. Sharp,
15 L J. N. S. 73. -C. C— Logie.
PerHajjarty, C. J., the intention of the Act
Bl Vict. c. 26, 0., was not to empower the judge
U the County Court to detennine the question
|f right between landlord and tenant on its
Tierits ; but, on its appearing that the tenant is
Soldmg under a bonft tide belief of right, which
Ihe evidence in this case shewed, he should »lis-
Hiss the case, and leave the right to ))e tried in
""^-ot QilbtH v. Doyk, 24 C, P. 60.
IV. I'lUITK K .VNK PH(M'EI»URK.
I.
W'rilH of Triiil iind Einiidry.
Where the declaration daiines i;7'> for m ork
and labour, but the bill of particulars only £19,
the case is within the limits of the 8 Vict. c. 13,
and a writ of trial may be ordered. Mnrtin v.
(Iii'i/niie, .') Q. B. 245.
It is not necessary to id>tain a nile of court, or
a judge's order to warrant the issue of a writ of
in(|ulry to the District Court. A plaintitl' enters
his record at the assizes to assess damages ; the
cause docs not come on in its order, and is made
a remanet ; the plaintiff snbsetjuently sues out a
writ of imiuiry to the District < 'ourt ; the defen-
dant moves to set this writ asiilc, and all sub-
sefpient proceedings, for irregularity, the cause
having been made a remanet at nisi prius ; but
Hehl, per cur, writ of inquiry regular. Sorth-
coll' V. H odder, 5 i^. B. (535.- -P. C— Draper.
Under the 8 Vict. c. l.S, a writ of eiMpiiry may
issue from the (Queen's Bench to the District
Court, not only to try the issues to the country,
but also to assess contingent damages upon de-
murrer.' Khiijn ('(illri/i- V. (I'amhie ct iil., I C L,
Chnuib. 54.- -Macaulay.
Kotice of trial of a (Queen's Bench cause in the
County Court, cannot be given by anticipation
Ijefore the writ of trial has l»een obtained. Niach
et III. V. Ilidl, rntlerson v. Hall, 1 1 (.). B. 35(!.
The tiling of the writ of trial with the verdict
endorsed on it, signed by the judge of the County
Court, is a sutticient compliance with the stat-
ute. Ih.
The want of a pt)stea according to the form
given ill the rule of court of If. T. 10 Vict, was
held no objection, and if indispensable the court
wouM have allowed such postea to l>e afterwards
Hied. n,.
Held, 1. that a defendant complaining of an
insutHcient service of notice of trial in a cause
pending in a superior court, but sent to a County
Court tor trial under 23 N'ict. c. 42, s. 4, may,
without waiving the irregularity, apply within
four days after the trial to the county judge for
a stay of proceedings till the tifth day of the
following term of the superior court of law.
f'lVw/- V. (,'reen, 2 L .1. N. S. 14.- C. h. Chamb.
— .r. Wilson.
Held, also, that he may, within the like
period, make a similar application to a judge of
one of the superior courts of law sitting in
Chanibei-s. //(.
Quierc, if he delay for seven days after the ver-
dict without making an application of any kind,
has he not thereby waived the irregularity ? fh.
2. Oilier CiineK.
Seuible, that a recognizance taken in a District
Court may be sued on iu the Queen's Bench.
Cockrum v. Eyre, 6Q. B. 289.
LI
I •.
i !l *i
LJ ■"Wf|i|>!
847
COITNTY COURTS.
m
i
Ji
Whuro a rocngni/nnuo hati Iwimi taken in opon
court, iiDil it i» HO avcrrud : UM, that iiixler
thuH Viot. o. i;<. H«. 'iO, A ft W), tiiu llliii({ of
thii rucogni/ani't: in thu otii<;u of tlio ulork iti not
nui'CHBary to porfuct it. //<.
A (V)unty Court judxeoiinnot, liy arriinK»'inent
with t)i(! )>iir of liiH foiinty, tranHact tvrui \t\m-
ne«8 in vacation. Smith v. Htntinii, \'i i}. H. t!(H.
When the C'ourtrtof (^uccn'N IJcnch ami Com-
mon I'luaH arc at iwHuc on the iionxtrnt'tinu of an
act of parliament, tii<! iluty of u comity jniluu
in tu decide according to JiiH own view of the
hiw. MrhiHiH V. lininlirl, H I,. .1. '>-2. ~i\ V. -
lln(;hcH.
Tlie vacation Huccccding ,i term, in not to be
considered for tlie pur|Mm(.' of charginu' a ilcfcn-
dant in execution aH part of the preceding term.
The same rule govi^rnx in thi.s respect in County
( 'ourtu IVM in the Muperior courts. /I'liil v. I>riiki ,
4 V. H. 141. 1'. L. Chaml.. A. Wilm.n.
A rule to enter a nontiuit having liccn granted
in the County Court in April term, waH duly
unlarged until the following term. 'I'liu judge
died Ik^foru that term began, and no Hucceutior
wan appointed till after its expiration, but the
dork of the c<mrt granted a rule to enlarge it.
It was argiieil in (Tctober term before the new
judge, who treated it an still (lending, and gave
judgment ; Held, that he was right. /,m/iV v.
A'«/"i(-».s •i.'i (i. H. '_'4;i.
Theplaintitl', having sued in the County Court,
proved a claim beyond the jurisdiction, wliere-
up<ni the jury were discliarged. ilu then brought
his action in this court, and upon defendant's
application an onler was made staying proceed-
ings until the iilaintill' should discontinue the
County C'ourt action and ]iay the costs of it.
The order was rescinded, for, I. the County
Court having no jurisdiction the iilaintitl' could
not discontinue the suit there, which would lie
a proceeding in the cause ; ami, '2. this suit being
for a debt, and not brought oppressively or vex-
ationsly, should not have been stayed, //oi/i/non
V. ilntlutiii, 'H\ (). B. 127.
Defendant in the County Court obtained a
rule nisi to enter a nonsuit, with stay of pro-
ceedings ; it was not signed by the clerk, but
had at the side the words, " Hule nisi granted :
W. Salmon, judge." I'laintifi's attorney, treat-
ing it as no rule, signed judgment, but the judge
held it to bo a proper rule and the judgment a
nullity, and onlered a nonsuit. On appeal by
the plaintiff :— Held, that the judgment was
irregular only, and should therefore have been
got rid of liefore any other step could be taken ;
aiul on this grouml the ajipeal was allowed.
Bruwn V. Vlin<\ '2' ij. H. 87.
Held, that under s. 18 of the l^jiw Reform Act,
judges of the County Courts can try cases brought
down from superior courts without the inter-
vention of a jury, i'lm/iwini v. IMd, !t P. R.
121. -C. L Chamb. (ialt.
V. Kkkok .\nd Appeal From.
1. Error.
^Vl^erc either party canapiHial from a District
Court undersea. 57 of 8 Vict. c. 13, the appellant
must take that courae and not by writ of error.
Thoiiia)! v. JJilmer, 4 g. B. 527.
The plaintirt" having conimenoed an nction
the County (!ourt, at the trial ^ lull „f j,.'"
tions was tendered, and it was then ngrccil ik''
the pleadings and evidence shoulil I,,' Ht.iti',1 "
special case for the (Jueen's Bench, m, wlui'i,'^',
court might order a verdict for pljiiiititlUr ,|ef.'
dants, or, at the election of thu plaiiititl, a i,,"'
suit or new trial, the court to draw iiitereiuti '
a jury. This was argued as a special cwe j„ .i"
(^loen's Bench, and judgment given f„rtlif iik.'
tiir, whereupon the defendants bioiij^lit irr
In the copy of the judgment roll tninMiiutw
immediately after the pleadings iuhI venire tl
evidence was set out, and then a Mtitimeiu :i
the contention on either side, and ii forinal ,.||tn
of judgment for the plaintill'. The ( 'diirt df \,
jieal refused to entertain the case, lin|iliiij,t|,,,,'i
it was to lie hioked up<in as an iiifnnii.il aito i
from the County Court to the (^u 'oii'm Itc'iul' *
WHS not a special case within such. 1,50 cr irrl
the(;onimoii Imw I'rocedure Act, upon ^^||'|^;'
error couM l>c brought; that if it wiimcjI,^
treated as a cause in the Queen's Humh, tlifiuL
agreement of the parties to the siiucial ciuif an I
a judge's order allowing it, shoal,! imve n\,mn'<\
on tlie roll, the facts and not the oviilenot; diih
should have been stated, and thu iigrcenicnt li
the parties should have l)eeii almolutc. iinti/iviiu
the plttintitfan option to take a nonsuit nr ij
trial instead of being bound by tliu jmlgniMii
/fiiliiicn V. (I'rtiml Trunk It. M'. Cn., '>ij q. || •m
The proceedings hero with regard to wnta nl
error to County Ciourts, must be gnveriicd l.ytlit
old practice in England. The plaintirt, in tbc
County Court, recovered jsri on n (ledawtiwi
containing counts on the warranty of ;i iiumtfur
deceit, and the common counts. Sd ceititiate
was granted, .and judgment was entured forile.
fendant for his costs of defence iw \Hvm\
attorney and client, less the $5 (laimigfa. The i
plaintiff' removed the judgment iiy writ (jf tm.r
contending that under the Statute of Onuri,.,'
M Vict. c. 24, s. 2, sub-s. 4, he was entitlfil tn
Division (Jourt costs. The defeinlant nlitaimil
a rule calling upon the plaintirt' to iw-sij^n errors;
Held, not his proper course; but that Iju dIkiuM
have sued out a scire faciivs iiuare exucutiuii"iii
11(111. Held, also, that this writ could not !«.■ siiil
to liave been sued out merely for delay, in nhiili
case the court will not stay execution, for tlierc
was fair ground for contending that the iilaintiif
was entitled to iJivisioii (^ourt costs, aiul that
the defendant should have dedm ted his mi
costs in such court from his own County Cuurt
costs. Pu/ie v. /{eilli/, 29 Q. H. 478.
2. When Ai>i>eal /'
The court will not cut appeal fp.iaia
County Court, wher' a>i. turn.i whi>llv
niion the evidence, ai . us im point ui hi
howUr V. McDunul ;. ti. 385 : Bnidh \.
Crane, 4 Q. B. 122; .. .,„,, v. ' -luill, iii^.
B. 302 ; Clark V. Hinlhim, ;"c. P iM-MrKiu-
Iri/v. Fiirby, 24(1 B. 17C ; J/ai \ IMm,
25 t^. B. 247 ; See, also, Hei/iim ../ ,t/. McKm
V. Ifoijn, 15 Q. B. 140; Keyina v. McLm*l
(l 1$. 443.
There must always be great reluutanct to let
aside the order of a county juilge directing U
able process, when there are reasonable gruUDdi
from which he might draw the couclusiun thit
m
MX iictiftn in
'ill l>f CXnj,.
, narwA lint
ic utiiti'ilana
I'll wliuh llw
itill'iir ilulta.
iiiititV, a iiiii;.
illllMXMlcl'Ju
III I'iHe ill tti,
fiirtlieplaiii.
•iiiiKtit m>.i
ti'iuiKimtWl
ml venire tl;,
st:iti:inent :.|
I fiinii,*! iMitn
■Cdurtiif Xy
llolilillUtlut.''
ifoniiiaaiiiKjl
■i'u'h iiuiuh, ;;
. ir)Oi.rir,M
t, uiKiii wlncs
I it was t" U
Iciu'li, tllUlltllr
lui'iitl cane, aihl
Imve aiPiM.'art>l
; uviilencf niily
c iigre eiiicnt iij
luti', licit iijiviiij
iiiiiiMuit iir nev(
thu jlulLMIltllt
... 'JDg.li.m
^iinl to wntmii
i;()vi'riiwl liy tilt
lilaintiH, in tlie
lU a (leclaratiuii
ty of a liiirae fur
, N'o certiticate
s liitf reil fur ile-
a» Ijttweeii 1
luinaijt'ii. The |
Dy writ of error,
;ute of Oiitariii,
wiiH eiititltil III
jiiiliuit olitaiiieil I
iisaiKii t^iTiim :
that liu sliiiulil
ire exucutidii'iii
mldiiotlwsaiil
ik'lay, ill which
lUtiou, fur there
hat the iilaiiitilf
ostH, aiul that
iUut<;il liiaiiwii
u Coiintv IVurt
;8.
niijHialiniina
'.uriii' ^vhully
Li> point III la''
' ./hi//, M
, , , /. J/cAnm
l;luctaiici;tti«t
( directing lull-
Jinahle gwuwl*
Loucluswuthrt
84!»
COUNTY COURTS.
8fiO
I ,•,,,„ I „l it WilM llltollt to luiVVW. Sli'ilt V. ./o;;r^, |i
I ,? i;:». •'■ I" I'll'""''' KiihivnU.
Whirr thr I'liiiiity Court jinln'' lui'l oxiMvirtcd
hin (linii''t>o'i 111 MiiVli II I'liKo, II Sii|.cri..r Ci.nrt
illilL'f rifllHi'il to iiitrrfcrc. .l/oM.-/ \. S/mir, :,
I' It •-''><•. «'. I-. <'hiiiiili. liiilmnU. Clmk \.
liiu'lh'iri. ti<', c. 4:ts.
SiiiiMi'. ''"'''■'^ '""■'*^ '"' K'^'"" *" " ^ ■''''• l''«'''
i,lii,rtioil oil aii|ifill. tllol1>ili jllstiio llll^^ licoll
ItolmiHOII. ( '. •'., illlliiilllltc. A'r//// V.
(loll''- ,
ll.lllll'-ill. i '.'■ "• '■♦•'• I
Siiiili'. that uiioii a|>|ioiilM on points of Mi>i<'ial '
(loimirivr, (•tri''t iko'I not l.o nivi'ii to nil (iLjoc
tioih wliii'h "oiihl invviiil in this I'oiirt. Oid- \
„,,,,,,,. /;„/,„, (',(,>. n. LTXi. I
Wlu'i't' only lostM iiro iiivolvt'il, a ilfcision will i
ih>t he rfvci'sfil oil II iiurc |"iiiit of siuciiil ilu-
Imirnr. Kn-t.,! y. Kin.lt, l.'M^. K UtlT.
\ Ciiiiiity Court jii'lj,'*.' I'aniKit by iiiraiixji'mcnt
witlithe l«r ol liis foiinty tniiiMai't tiriii luisi- |
uess ill Miration, unci nil a|i|ii'al from ii (li'oisioii
uii.lir sihIi an arraii>,'oiiu'iit was allow fil with
costs. Siiiilli V. I'liniH!/, 1'2 i). H. (itil. I
Ttie I'liiii't will not ciiti'rtain an ai>iifal fnnn |
tlieoiiiirthelow 11)1011 tlio ((lU'stioii wiittliiT jilaili- '
till' iinlefeinlaiit was ontitlcil tir.st to iiidlress j
tk jury. lliiiHiii,!" V' EiiruiKt, 7 <»'. H. .ViO.
Thi'jiiilg*' of the County CoiU't granti'il u new
trial (in the ,i,'i'oiiiiil that lie wan wrong in allow-
ini! the iilaiiitill' to begin, anil that it hail preju-
clicidtlieilefeiidaiit, iia the venliut for the iilaiii-
tilf »M against the weight of evidence. This
court hclil that thoiigli the venliet was wrong
on the evideiiee, the ruling at the trial as to the
rit'lit til hegin was right, iviitl an apiieal was
tl.ntuie dinniisseil without uoats. XriHllev. t'oj;
M.I. I!. •-'.SI.
The (irder of a judge upon an npidieation to
amcml, is not ajiiiealahle. Hniniijiin v. Stin-
m. 10 (^ B. 403.
The ileoisiiiii 011 a case settled by conacnt in
11. I'eniity Court without pleadings, is not ap-
[milalile. ' lliiril'iiiii v. KnnirUun, 17 Q. B. !M'A.
l^iwre, whether the refusal of a, re-jileader is
an ainiealalile matter. Amjliu v. Miinkipality
t>f Kmj'hii, It) t^. B. 1-21. •
Where a verdict is taken for plaintiff, with
le.ivc to niiive to cuter a verdict for defendant.s,
ail ajijieal will lie from the decision on such
niati.m. Iliwwtli V. Fleli-hn; 20 Q. H. 278 ;
.l/'/,((i)i V. Till- Tutni Comifil nf Jlntiitfiml, Hi
K. ;u:,
\n aiijieal will lie upon an interpleader.
irim V. Hank of Toronto, 10 C. P. 32.
Where a county judge has jurisdiction in the
premises, a suiieiior court judge will not in
feiural, if at all. exercise a jiower of appeal by
ak'.i.s ciqms, which was never intended as a
Eeaiisof aiiiieahngfnmi the discretion of u county
|uilgc. Hitimtintii V. ArmKlromj, '2 L .J. K. .S.
16-"|.— <J. LChaiub.~A. Wilson. See, also, In
.'fiiwi, i'l B. 24.
Detenilair. ;,. the County Court obtained a
ulc nisi to cuter a nonsuit, with stay of pro-
■eetliiies ; it was not signed liy the clerk, but
»A at he side the words, " Rule nisi granted :
^ . Salmon, judge." Plaintiff's attorney, treat-
^g It a« 11 rule, signed judgment, but the judge
5i
liidil it to bo a proper rub' and tht> judgment a
nullity, and iit'di'i'i'il ii noUNiiit. <)ii appciil liy
the plaiiitill': Held, that the jiidgiiunt was
irregular only, and hIkiiiM theiefdre have beeii
got rid of belore ail\ oilier .step I'ollld be l.'iken ;
and on this groiiiid the appeal was nllowud.
/tri.ir,, V. C/hii, 27 <J. It. S7.
.\ii appellant, having obtaiii' d the iisiial stay,
omitted to give the liollds, iind the oppiisitc
p.'il'ty, at the expiratioii of thefmii' ilays, eiitend
pidglliont. A millld.imilH to certify the proeeed
ings ill appe.'il upon 11 bond siibNe(|iieMtly entered
into was refused, upon the gi'iiiiiid that no
appeal Wduld lie after iiidgnieiit entered. A/nr-
l<liii V. 77/. Sn,-ili,,ii It. ir r,,,, i;{ c. j'. ;j2.
,See iiImo Diiilil v. I)hhn.-„i, 14 C. !'. 142; IT.".'/
V. Untwl Trind- II. II'. C... It! C. I'. 27."i.
Where defendants moved for a noiisiiit on
leavi^ reserved, or for a new trial, niid the rule
was made absolute for a new trial, on payment
of costs ; Held, that they might appeal from
this decision a.s refusing the nonsuit, and need
not first take out the rule absidiite as granted.
I'nil'iii v. ^■/•<///f/ Tniiik It. If. C,,., 2H {}. 11. ;i(i7.
An ap]ieal will lie under the I'lirtition .Act, 32
Vict. c. 3H, <)., from the jiidgineiit of w County
Court judge on a s|iecial I'ase stated. In ri:
S/,<n;r unit Hurt, 31 i}. Ii. (103.
.An ajipeal will not lie from the granting of
a rule nisi in the County Court, before it has
been made ati.solute or ilischarged. Jtnliin.tnn v.
Hii-l,iiriU,m, 32 (^ H. 344.
Ill a County Court case, tried iit the assi/.cs,
after verdict for defendant in that suit, the par-
ties agreed upon a special case in tlie action in
that court, and not upon a case originating in a
superior court ; the clerk, with the approval of
the cimrt, refused to receive it, on the ground
that the only mode of bringing such a cawe be-
fore the superior court was the ordinary statu-
tory one, by way of apiieal. I'nlti/piiO'v. May.
W//., 21 C. 'p. 3i(!.
Where, in u case of collision, the judj^e re-
ported that he thought he had not suthciently
directed the jury to the rule laid ilown in Tufl'
V. W^arman, !i C. K M. S. ,'i73, as to the ettect
of negligence on the plaiiititV's part, and that he
had therefore granted a new trial, this court on
appeal refused to interfere. Sonu■r,^ v. Lirimj-
nlon, 24 Q. B. (>4.
After the evidence had been taken, a verdict
was entered by consent for jilaintitt', subject to
the opinion of the court upon the wlude case,
with power to reduce the verdict : — Hchl, that
there was no right of appeal. JIcCull v. Wad-
(kll, 19 (". P. 213.
The decision of a county judge on an apjdica-
tion by an insolvent for his discharge from ini-
jirisoiunent is applicable. Hood v. JJodit.^ 10
( 'hy. (i.SO.
.3. Bond and Sidi.'teijnfnt Proceed In '/■•>.
On the 18th of January proceedings were
stayed for four days to allow defendants to give a
bond for .appeal, which was to be taken for.StiOO.
On the 18th the bond was tiled, the projier pen-
alty being inserted in the obligation, but in the
recital of the judge's order this sum was left
blank. The judge pointed out the omission to
-; r. ,
. ::.
' \i
851
COUNTY COURTS.
W2
1r I
I
(lefciidaiit's attorney, wlio inserted the sum ;
hut the judge alterwards required him to get
the b<»nd re-ackni)wle<tge(!, nnd he prueured it
from tile clerk of the court for tlmt i)urpo.'se.
Till, plaiiitid's attorney (hiding it ^ :ne gave
notice of taxation ; Imt it was returned before
jiKlgment, which was nevcitlieloKs entered, and
uiilicM on the ground that the bond when liret
tiled was defective, and that it had not been
retiled with an aliidavit of execr.tion after Iieing
corrected. The juilgt^ afterwanls refused to
transmit the jiajjeis for aiiiieal, and to a man-
damus nisi returned the aliove facts • -Held,
that the bond was sulliciciit when tirst tile<l, the
omission being immaterial : that the sum might
have been insei-ted witiiout re-excciitinn, and
that it was therefiu'e unnecessary to tile any new
artidavit. I'culiin v. HV//,v, 17 <■). M. M"..
A County t'onrt juilge having refused to cer-
tify the papers for ajipeal, because the bond was
not conditioned to abide by the decision of the
court above, as the statute reijuires, this court
refused to interfere. Jii rv Ki'tiniliaii v. I'nsioii,
L'l (}. \\. 401.
As to the eircctof the 27 Vict. c. 14, regarding
the form of bond, see Tour (j. t. v. /'rculon, 23
y. B. 310 : P<nllitHd V. Jhnlli, 24 (^ H. 4(i4 ;
Darlitui V. .SIi<riroo<(, 2 L. J. N. S. 130.
I See now 33 Vict. c. 7, s. 13. )
Thi.s court will not refuse to hear an appeal
projierly entered, bccau.se the necessary bond
was not given in time. Ilnicinik v. Ftilc/nr, 20
(,). B. 278.
The conditio;] of the bond not being in accord-
ance with the statutes, the ap]ical entered for
argument was struck out of the ))aper. Pent-
land V. llinth, 24 Q. B. 4()4.
The right to appeal must be exercised before
the entry of judg'.nent in the cause. A bond
having been aUowed, and the appeal books set
down for argument, after judgment entered, the
case was struck out upon motion. />«//// v.
Dh-kiimni, 14 t'. I'. 142.
Seinble, that until the hoiid has been filed
with the clerk, he cannot refuse to enter the
judgment. In this case the bond had been
allowed and the opposite party notified thereof,
but it was not deposited with the clerk until
after the entry of judgment and issue of execu-
tion, though on the same day :- Hehl, I. that
such judgment was not a nullity ; 2. that if
irregular it should have been move<l against in
the c(Uirt below. The jiroceedings in the cause
having been improperly certitied to this court,
after the entry of such judgineiit the appeal 'vas
ordered to be struck out of the paper. WomI
V. Til,' (; mill/ Trunk li. \V. Co., Ifi C. V. 275.
Hut see the next two cases.
AVliere the bond allowed was for less tlian the
vertlict : Held, insullicieiit ; but this court will
not go behind the certificate of the county judge
to eiKpiire into tlie regularity of the prior pro-
ceedings. T'eiitlaml -. Jleath, 24 I). B. 4t)4, rc-
ferre.1 to. M,-Lilliiti v. MvCHtaii, 2 L. J. N. .S.
25)7. 1'. (.'.-A. Wilson.
This court will not entertain objections to the
hearing of County Court ajtpcals unless such
objectio'ns apjicar or shoulil projierly appear
iip<ui the proc'jcilings certified. They refused
therefore to scrike out an appeal entered, for
*-' I'.V tlit
"ami ;,,
iiM Well li
lie aiipcal
lllfl.!
ubjeetions to the form and amount of tlio liiin,!
and to the sufheiency of the sureties ainl tbt
aftidavits of justification. I'mton v T/n <■,■, i
Trinik li. ir. Co., 28 (,». B. 3(;7.
Ii., the plaintiff below, appealed,
bond to the defendant, W., to abji
decision of this court of the cause,
]>ay all such sums of money and costs,
of the said suit as of the said aippcid,
be awarded and taxeil to said \\ . " '|
having been di.smissed, \V. recovered IikI
in the court below ; -Held, that the r>iiii
Jielled It. to pay \V. 's costs of delViiee taxri
there, not merely the costs of ajipeal. Wmhi;
V. Jtolnrtxoii, 2(>'Q. H. 37ti.
Where the decision of the cmirt aiiiieakil tj
in efl'ect sustains a judgment of the ('mintv
Court, which disposes of the cause in tlie rt*
pondcnt's favour, or directs a pnieeeilin.' ,!,
jutlgment which has that efl'ect, the liduiris j
security for any debt or damages awarded, aii,!
for the costs of the cause as well as (.f the
appeal. / b.
l>cclaration on a Ixuid conditioned to aliidi;
by the decision of the Common rieasiiiaCniintv
Court suit of W. c. M., appealed to that euurt
and to pay all moneys and costs, as well et tlii
suit as of the appeal. Breach, noiipayiiiunt nt
all sums of money ami costs awarded and taxed
to W. in the suit-: that he recovered iiid.'iiieiit
in the Ccmiity Court against M. for .*:'_".'() damai'w
and §72 costs, which defendant had not |i;u,l.
I'lea, that no decision of the saiil cause was ever
made by the Common Pleas, nor any iiKmeynr
costs awarded or taxed by that emnt tii tin.'
plaintiff :- -Held, plea good, for the idiiditjun
w.as only to abide by the decision of tlu'Ccimiiiiui
rieas, and if the appeal was not lieanl and the
refusal to entertain it was a deeisien df that
cimrt, it should have been so alleged. The
plaintiff rejdied, that the sums of .'<270 ami i<7L'
were within the true intent and ineaniii;,' df
the condition awarded and taxeil tn the jiiaiii-
tiff as and for his moneys and costs w iiieh M.,
within such intent and meaning, was lial>le tu
pay :- -Hehl, bad, as tendering an issne (in matter
of law. WmliMI v. McColl, UO i). li. %{).
4. Settiiiij iloii'ii Cii.i, fur Artiiiiiiuit.
As to the time within whi. h apjieals must
formerly have been set down for ar{;iiuieiit.
See Hiitinn v. Viiiii/iikiii, ]0 Q. B. (!-(); Simfi'ii
V. Tin- Oriitl nVs/'o/ A', ir. Co., 17 (.1.1). ."i
Siiiitli v. Foiiltr, II C. r. Kil.
[This is now regulated by rule of ciairt. T, T.
2(! Vict. 22 g. B. KiG.]
5. CostK.
As the defendant might be said tn Imve i\>-
pi'aled in comidiance with the wish oi the le;\nitd
judge, costs were not given on disniissiiii; tlie
appeal. llurrU v. Ilohiii.iini, 2.'» (). 1>. >4".
Appeal allowed with costs, eontiaij M thti^
vious practice. Eililii v. Tin OHoim Cihi /''»•
srmiir li. W. Co., 31 ■(.). B. TiliO, 57(i, wW'r.h
re Shnnr iiinl J/iirfii, Ih. (JO!), iiote.i. Sii'f.al*"-
Siiuth v. Itouniy, 12 Q. B, (1(!1.
tho lininl,
us :uiil tilt
I, niviii- ,,
lidi' l)y \i:
f, ' ' iUlll ^:
s, as wtll ii
II, ;is slmurt
Till' aiij.ni
jil jii<l>;mci.;
V lllllhl Lllll,
■fciifi' taxr;
ll. ]y,M
ttio Cimuti
le ill tlu n-
iroeoi'ilin^' i.r
lit' liiuul is a
;i\varik'ii, aii4
uU as (if til"
ikmI til alii'lt
■a." ill a riiiinty
to that ciiurt,
as \\A\ (if tk
loiipayiiiciit lit
■ilcil ami taxiil
L-ri-'il jiiilgnii'nt
r S'JUOilaiiiagi's
had not jiaiil.
caiisi' was tvor
• any inmiey or
t 01 lint t" till'
• tilt' I'liinlitiiiii
f tlu't'ciinmmi
hearil alitl tho
icisii'ii lit that
alk'gi'il- The
if liJ'JTO ami JT'2
liiil im'aiiiiig iif
ll til the iilaiii-
ists vliiili M.,
was liahle tn
issiiL'iiiiiiiattiT
.). 15. '200.
rtiiiiimil.
a)iiieals must
|f.ii- argimii'iit.
li'JO ; Nil"/'""
I 17 (.1. B..i;;
t. T.T.
It I'liiir
.. 1.) Ihivea]!-
I „, tilt' If^inii'l
lisniissiiig the
■). 11. '24:.
■arytotlicim-
|„ni ri(i;/'>i'-
(i, unto II : '•
„•. Soo.als'S
85^
COUNTY COURTS.
854
Where i party fil«'l " '''^' "" **"' i"l"'ty ^'•'•^ t eiitiiiilit'd with by ourtifviiig the decision siuiply.
•41 cJoitvCmirt, whieh on the liearinj,' wiisi y/f/.v/rinv/ V. draiid 'Iniiilc It. IT. r«i., .S-J Q.
;i, Led witl.coHts. and the plaintitt' aypcaled H. :V..-2.
fthi-ie.iurt, when the ruhng of the judge was, -
vid thJ court gave to the ,daint,tV the eost.s '
I *i. , iniii.al as well as of the court lielow.
eal, as
'/'/» ^(7// of Tiiroiito, 12 C'hy. 18(5.
The general rule in matters of ajiiieal is, that
unless the ajipellate court can say that the judg-
ment of the court ajiiiealed against is clearly
wrong, that judgment stands. Kk mi v. O'Jlura,
KiC' I'. 4.T).
Senilde, that no time is now limitei
jicaling from the < 'ounty Co'.irts. /// ;-.
t. V. /'rest, ,11, ■r.i Q. H. :"!10.
for ap-
Tn-.i I- ij.
of tho i'l'l"^",';,
I'll i-i I nil "I' '• ' ''
The defendant, in a suit on the eiiuity side of
tl,c fi.in.tv < •.""■t. I'^kU '•^■f'"-^' ''^''"y «''7^''' ''.]*']' i
^„ j„j„„otuin restrainn.L' the removal of a Imild-
i„„ rcmiivcil the same l.y .hrection ot the city
,„spootoraslieingamiis:ince, havinglieeuerccteil |^^ pleading the general issue l.y statute, any
,„(„, .,„ the lii.l.l.e s '-ect ; notwithstanding ^^.^j,^^'^, ,.^,,i^,^, , ^ f,,^ ^,,^, ,,^,f^,,,,^^ ^^^,,^^ ,;^
this'aii order was made l.y the judge ot the ,.^,,Y.r,.od to in the margin as well as that l.y
winch such plea is alloweil. Iiut where .si.cli a
CmiltV emit for me conn.nuu... ... w.u ,. .:....-
hilt \vlio without moving to di.ssolve the iii-
';;,„cH(.i. I'M the facts, appealed to this court.
,1 illiiwiii" the aiipeal. and directing detendaiit s
aisoliav'o.'^the court did not give liim the costs
„f tho 'aviilii^vtiun. Mnrpliiiw MorrUoii, 14
fhv. ^OS.
stitiite had liecii omitted in the County Court,
this cniiit on appeal directed the court liclow to
amend hv inserting it. VmiXntli r v. Tin liiif-
l'«h>(niil'/.nl.r lliiruii It. II'. C„.,-J7 <.>. 1'.. .".SI.
Till re was a demurrer to the reidicatioii, ami
i a Verdict had lieeii dire^'ted for defendant oil
. the issue in fact on the opening address of plain-
(■ (itliir Cimx tiff's counsel, from which the plaintilf aj.pealed.
' ■ Remarks ;is to the ineoiivenienee of an ap|ieal
Whoro either party can appeal from a .)istriet ; „,„ij^,,. ^,^.1, circunistanees. Slirrijf v. .!/<•< Vk/,
Cou.t umler sec. 57, <>f 8 V wt. c 13, the appel- ._.; (^ |{_ -,<,7_
laut must take that course, and not liy writ of , , , . . ., , .„ ,, .
inir n<wi<i.-<\. llUmr, \(i. \V .'•.27. ' "" appeals ag.amst the orders of the County
■• ( ourt, this court will assume those orders to lie
Whore a nonsuit was granted in the County | correct until the contrary is shewn ; and earc
Court, which this court thought could not l.e „n,st i,,^. taken to point out the defects on the
aiistiiiiieil, hut the right of the idamtiH upon the j.leadings and iiroeeedings l.rought into this
evulcnoo seemed very (hiulitful, the court «>n\.„„,.t. Min-jilniw MurrUaii, 14 Chy. 203.
amwil milered a new trial. O'/fmirb v. An, 18
q. B. m.
hy
(if the w-itnesses examined at the trial,
I ,iiiil put ill after the argument of the appeal.
I Ihiiiktif Upper Ctimiilav. Turniiit, 10 Q. H. 423.
I A petition of appeal from the lecision of a
. ! County Court judge, acting in insolvjiiey, need
Theciuirtrefused to receive an alhdavit, made not set out all the evidence, docnnients, and
materials used l.efore the judge. What is needed
is, that either the petition, or the notice nccom-
j.anying it, should shew to tho opj.osite party
Thi'LTOHuds of appeal must l.e stated in the the (d.jecticm which is taken to the proceeding
miinl liiiiiks, independently of the (d.jections i 'U'F'"'^''' ••'"'". '""l the materials to l.e used on
'«!t nut in the rule nisi below. Scnrn v. Wy^.Y ! tl'e argument of the appeal. //.«„/ v. l)od,l.<,
'Umuf C,,., ( orhell v. Tanlor, 2.S (J. B. 2.-.4. i '" < 'O'- <••'«♦•
\iiiioals will not Ik; heard unless such grounds ' -•^'> "'"'''•■r in insolvency was made lui tho 24tli
uooiitere.l on the appeal books when ddiverod. ; ''^V <'f l>eeeinl.er, and the tifth day thereafter
F.hhiw (tllmra Ci/ii Pa ■■<■•«' mpr Railmtii Co., 31 '^"'l "'"••■ ^"""'ay : Held, that service of noticeof
,).'>;,,;() ■ ' I appeal on the Monday following, was ill time. lb.
Scmhlo, that on an appeal the judge should! It is not necessary that the security to be
oortifv the original pleadings, »te., tiled in the given (Ui an appeal in inscdvency should be
fausi\ Mnrplui V. Norlliern Ifdi/irm/ Ca., I3 ' executed in jireseno'c of a judge, /h.
('. r. :f2. ' i
^'l. MiscKl.I.ANK.l.I'.S t'.ASKS.
The judgment of a l>istrict Couit could not
7, for want of a
MrD.mrll, 4 (>.
ly the Courts of
I'le.i,'* does not
Whore exhil. its used in the court below are!
not |iroiluoed before the .apiM.dlate court, the ap- j
(ical will nut he heard, if the attention of the i
onurt ho oalled to the fact. Mor.te y. 7V(<<;;(;m-»m, 1 v,in'd laiids°uiider .-) t;eo. II. c,
''•"^'' ''• '•'■*• 'docket. Ih» d. Mdiilu.h v.
The uiinojessary length of the appeal books i !^- 1"."'-
reuiarkoil Ilium in this case. rhlHiji.-! v. FUi'lluii, 'piio new tariff established
'2i (^ li. I!'.'. Queen's Itencli and Com.aon
Thoiiwiiiior in which the aj.pcal books were ' t"f tend to the Cmuity Courts. Cinl v. Liuint,
Hiitton remarked uiion. Cloii v. Jiitaii's, 27 - •'• '»• "'-•'■• !'• Chainb. Ihiriis.
'■ ' • j ?er Jfaeaulay and Jones, J J.— Attorneys, not
Hlwrvafinns on the luaiiner of sending up being barristers, cannot, as of right, be heard
casts frnm the County Courts on api.eal to the i as advocates in the l>istrict ( !ourts. Ilol.inson,
Hiiwrior emirts, and the iiisulficiont niivterials j t". .1., diss. Jii re Lajwiiothrr, -H). H. 4!»2.
turnislieil. Arthur v. ^f,w^■, -^HW. Hi. i twi 4.<. * n . • i
' Ji elil, that ( (Uinty (ourt judges cannot allow
attorneys who are not barristers to imntice before
them as ad\ icates in County Courts. In >•<•
^ It is the duty of a County Court judge to
portify til the emu't ahovo on an appeal tho
Ifnuiiiils of his decision. The statute is not
I I'
m
Ihookf, 10 L .1. 49. -0.
iiunty
O.—Ji
ones.
,i'!i
\i ?/ I:
$55
COURT OF CHANCERY.
856
li
+ii
The vacation succeeding a term is not to be
considei-eil, for the purpose of charging a defen-
dant in uxecution, as a partof the preceding term.
The sani'j rule governs in this respect in County
Courts as in the superior courts. Jfciil v. J)rab',
4 P. i;. 141.-C.L.Chamb.— A.Wilson.
Held, that under sees. 51) and ()4 of the Ad-
ministration of Justice Act, 187.S, there shmild
be no County Court sitting in May of that year.
Ditin V. iloMwii', () P. \\. 103.— (,'". L. Ciuiinl). -
Dalton, C. C. '.0 P., Kichards.
Held, under tlie Law Reform .Act, 18(iH, s. 17,
8ub-ss. 4 and "), as amended ))y tlie 3H Vict. c. 71,
()., that in a <.'oinity Court cause tried at the
Assizes the motion to arrest judgment was pro-
l)erly made in this court. EiIhiidk/.i ij. t. v. Unci/,
35 Q. 15. 495.
COUPOX.
See Debentl'KE.
COURT HOUSE.
[Si I- ■!(] I'iif. e. 4,s; .^.v. .'l^S-.WH, O.]
The justices of the peace cannot apply the
district funds to building a new gaol and court
house witiiout an act of parliament specially con-
ferring that authority. /A .<• v. Jii.stiee.-i of Si-w-
ca-itle, lira. '204.
The court refused a rule nisi for a mandamus,
<at the instance of the justices of the Huron dis-
trict, to compel the Huron ilistrict council to
build a court house. .//(.s/iVc.t (;/' the J}Utr'iet of
Huron v. Jliiroii Dixtrict Ctninnl, 5 Q. B. 574.
See, also, Ifei/ind v. Tfie Mnnk'qtal Cimncil of
Bruce, 11 C.P. 575.
Under 10 & 11 Vict. c. G, a district council
cannot be made liable in damages for an injury,
resulting in death, occasioned to an individual
in walkmg up the court house steps, which had
been allowed to fall into an unsafe and danger-
ous condition. The council was charged in th's
declaration as having the court house up.iier
their control, and as bound by law to keev it in
repair, and judgment was arrested on th).i aver-
ment, as the act 4 & 5 Vict. c. 10, s. 40, throws
the resjMinsibility on the district survey or, upon
whose report, in the first instance, ivs to the
necessity of the repair and th'j expense, the
council have to pass a by-law . Ihiirkcahiiw v.
The Di-ttriet ('iiniirll iif the Dlttriet of Ddlhoiisie.
7 Q. B. 5!)0.
Quicre, wouM the council l>e liable to an indi-
vidual for not passing such a by-law after the
report of the surveyor had been submitted. /I>.
Upon ejectment brought to try the (juestion
whotlier the sheriff or the nmnicipal council
were entitletl to the control of the court house,
and the appointment of a custodian of it : —Held,
that the title of the plaintiffs by virtue of a
deed from the tr)wn council of (4oderich being
admitted, tlie defence must fail, the (piestion in
dispute not l)eing decided. J/iii)iei/i(il CninirU
ot'J/itron ant/ lirtiee v. MoeiltuHilil, 7 C. P. 'J78.
The plaintiff brought an ii.ction for the use and
occupation of a room in his hotel aa a court
i room, and proved that the sheriff of the cfiuut ■
' hail engaged the room, and that thi; (■h.iirinau .!f
the nmnicipal council had signed an t,\\\t^y t'
i the payment of his charges : -Held, ni,t r,'^
' coverable. Dfirk v. Mnuie'nml ('oiiori/ ,,i' li
(iwl linia; 7 C. P. .378. '
The magistrates in Quarter Sessions 1,;^,. ,,^^
• power to order furniture for tlie court hn\i!.ii. ,.,||..
the county council arc not liable foi' fiiiiiitii'iv ^
supplied. Tile fact that the eotnt limise \i~^
also used as a shire liall for tlie sittiii;;s nf i\l
I council, and the furniture ni.ade use (jfTiy tlien','
could make no difference. ('i,iiiiil,.< v. J/',,,,;,.,- „';
C(y((»W/o/'.l/((A//('.s*'.<, 15 Q. H. 3(i7. '
: In conseiiuence of the separation nf the citA !.•
I Toronto from the county of Y(]rk fur iiiiiiti.ii
! purposes, a deed was executed hetweeii tilt
respective corporations, in whieli the city lovf.
nanted to pay the county a certain aiiimnrsinu
for the use of the court house. The ileeil al-u
contained other agreements as to tlie use df tho
gaol. This arrangement was to eontiniie in fniv,.
until twelve months' notice to determine it siinulil
be given. By the Law Reform .\ct, wliich canif
into force in February, lS(i!», the eit\- «as re-
united to the c(mnty for judicial iniriidses, ami
on "ilst March, 1800, the city gave the ediiiitv t!'c
stipulated notice as to intended diseontiiniaiira
of the use of the gaol, stating that as tn tlie enurt
house the action of the legislature liail viitiiallv
terminated the provision resiiectiiij; it, ,iii,| tluit
no further payment wcmld therefore he madi;;--
Held, tliiit the city ha<l been released fii m its
covenant to pay for the court house liy tlie Law
Reform Act, and also that there was iki iialijlitv
for an aliiiuot jiortion of the half-year's iviit
which would have become due on 'jlst Maroli
following. The Corimrnthm nj lh<- (\iinilii i,f
York v. The Corporation of the Citi/ „/' Tuniiitii
21 C. P. 95.
Held, that since the passing of the Law Kefniiu
Act, 32 Vict. c. 0, s. 22, O., re-uniting the eitvnf
Toronto to the county of York for judicial [lur-
poses, the city is not liable to pay tlieenimv
any compensation for the use of the enuit liouit-.
The Corporution of the Coiinti/ of Yuri.- \: Th
Corporation of the City of Toronto', 22 C I". Mi.
COURT OF CHANCERY.
L JURI.SDKTION.
1. General/!/, 857.
2. County ('ourt—Eiiuiltdile Jurixiliihfiiy
— See County Covhts.
3. A/imoni/ Suitx — See Hi'sb.v.nd and
Wife.
4. Seltin;/ iisiife Putentji nr (i/v()i/v— »■
Ckdwn Lands.
5. Si-ltiiiij niiili' Sale (if hmd lnj SkriJ-
Si'e HxEiiTloN.
II. Re(!Isti{Ah, 859.
III. MiscELLANEors Cases, 8."!I.
IV. Ari'EAL FiiOM— ,SVc 1m;koi; ami Aitf.u.
V. Pleadino in— <SVc Plkamnc in Iwhtv.
VI. Practice in— -Vt'c PK.icnct; i.v Kgrin.
VII. Master— iS'k.' Practice in Eqiitv.
m
857
COURT OF CHANCERY.
858
.iiwHefiinu
the city nf
juiliuial pur-
tilt' ciiiii;:v
imrt hiiu-t.
•.„■/,• V. 'y/..
C. 1'. JU.
'iri.'ilictlindf
Sli.\NI> A\»
1,11 Sliir'i'f-
\n XrvTM
IN \^<ivm-
IN I'lgiiiv.
iQVITV.
VIII. IsJi'XCTioN— 5ee Injunction.
IX. Spf.iific Performance — See Spec'Ifu-
Performance.
X Sale of Land bv order of the Coirt
See Sale of La so hy oroer of
THE C'OIRT.
1, JURISOKTION. I
1. Geiiiriilt;/.
V liill liaviiigl)ecu fileil to rosoind a contract :
l(.r the Tmivlrvse of an In.lian liglit to certain i
luiils I'll tlif (irand river, and to set aside the
■i^si'Miiiuiit executed in pursiiance thereof, do
tliet'niimils "' fraudulent niisreiiresentations, »r
t(i iilitaiii iviiiil"^'"*'''''"" '^'"" '"' '^""fi*-''' dericiuncj
ill tlif ciuaiititv of tlie lands : - Held, tliat as tlie
diiili' estate, 'lioth lej,'al aiul eiiuitat.le, was in,
the iTinvii, it was not a case in whicli tlie court !
WiiiiM interfere, even if tlie ])laiiitiir had estali-
li^ieil the case statetl in the l>ill liy evidence ;
and that no fraud having hecn proved, the hill !
imyht to have heeii dismissed with eo.sts. Jiruirii
V.W, HI.S. 287.
Tlio Court of Chancery cannot enforce against ;
the iTowii siieuitic performance of an order in j
c.niiK'il. Siinii^iiii V. Ontiit, iiVhy.Ml. I
N(ir has it jurisdiction to grant relief to a
suiiieot where the rights of the crown are in ;
(juestinn. MiHn' v. The Attorian-deiunil, '.» ,
CIlY. .'l.'iS. j
Helil, loUowiug the last case, that tho eijui-
fciljle juri.silictioii in matter.s of revenue in this
iiniviuci', at the suit of a subject, resides in
thf siiiM-ior courts of common law, if at all, and
licit ill this court. Xdriric/i v. T/ie Attornei/-
Umnvl, !l Chv. r)(;;5. Hut see S. ('. in appeal, i \
K.&A. r.4l. ■ !
This court has jurisdiction in a jiroper case to '■
pvc relief against a fraudulent assignment l>y a
katee of the crown heforc the issuing of letters
latent, Imt a hill for the purpose nuist shew \
wiiv it is iieeessuiy to come to this court. litiU
V, /Viii/!', I'.'Chy.'sO. I
Where a hill was liled hy di;visees against the i
exeeutdrs of their testator's will, alleging the
inahihty of the executers to attend to the trust ;
i.f the will oil account of bodily infirmities, and
lirayiiy for the ajiiioiiitinent of a trustee or
imstees ill their stead, the court dismissed the
liill, (in the ground that the jurisdiction to inter-
•Viv ill sueli a ease belongs to the Probate and
^iirnigate (' nuts, ami not to the court of Clian-
iity ! ami iiiasiuueh as the executors had been!
Immght liefore the courts with<uit any fault on
their jiart, the hill was dismissed with costs, j
iMffhytls: llni,->i,-2{:hy. 310. |
This euHit will, upon the petition of the guar-
dian duly aiipointcd by the C'ourt of Probate or
j Surrogate, interfere suiiimarily, and order the
I person (if the infant to be delivered into the,
j custiKly of sHcli guardian, when there is danger
I of the infant iM'ing removed out of the jurisdic-
Ition, althongli no suit is pending in court
respecting the iuf.int's estate. Jie (iillrie, 3
' Chy. T,'i.
This eonrt has jurisdiction to set aside the
election of ilircctors of a corporate l>ody Ity
jiersons who »rc subscribers nominally and not
liona tide. Daviilnon v. ammjc, 4 Chy. 377.
Where an insurance ha<l been eflfected, and a
fire occurred before the policy issued : — Held,
that this court hail jurisdiction to compel the
issue of a policy or the payment of tho insur-
ance. Puile'l v. Heiirmi Axsitranre fa., 5 L. J.
'Jl.T Chy.
Where property was devised ])y a testator to
his widow for the maintenance and raising of
his family nntil the coming of agi^ of the young-
est child, and then to H., oneof the sous, charged
with certain payments at intervals to the widow
and other children, with a provision for the
substitution of another son in the event of I?.
dying under age or without issue : -Held, that
the court had ii<i jurisdiction to order a sale or
mortgage of such proiierty, the court having no
power under 1'2 Vict. c. 7-, to dispose of the
real estate of infants against tho provisions of
any last will by which such estate was devised
to such infants ; '1. That such pr. ipcrty was not
the real estate of the infants within the meaning
of the act. Ill re Cain,;,!!, \ Chy. Cliamb. KS'_*.
-Spragge.
On an application by a client for taxation of
costs in a suit in this court, and in .another suit
in a County Court, his athdavit admitted a re-
tainer ill the County C<iurt suit, but denied one
in the suit in this court. The solicitor making no
claim for costs in the suit in this court : -Held,
that this court hail no jurisdiction to order taxa-
tion between the client anil solicitor. In re ( 'luii-
enui. It Sii/ici/iir, 1 Chy. Chamb. '.i'ti. — Spragge.
A bill had been dismissed with costs to be
pa''l to the plaiutirt'. Two of the defendants were
administrators, and as s'ich had funds in their
hands to which the plaintiH' was entitled as one
of the heirs and next of kin of the intestate.
The defendants had been unable to obtain the
costs by ti. fa. and tiled a petition asking to be
allowed to retain the funds in the hands of the
administrators :- Held, that the court had no
control over the funds, and the ]ietitioii wa.s
dismissed with costs. Il/aek v. lihie/.; 1 ( 'hy.
Chamb. ',W0. -Spragge.
Where a person falsely representing himself
to l)e the agent for the owner of certain land,
entered into a contract for the sale thereof, and
received a deposit on account of the jmrcliase
nioiiey, but the vendee could not obtain a s)iecilic
performance of the contract : Held, that his
remedy against the agent for the rein ni of the
deposit was at law, and that a bill for that
jmrposc would not lie. (irnlium v. I'oiri II, lo
Chy. ;V-'7.
This court has jurisdiction in a suit, as well as
on a petition, under C. S. l'. C. c. .S(i. s. IW, to
decree a sale of an inchoate right of dower.
('(is.tei/ y, CtiMeii, 1.") Chy. Hit'.l.
This court has jurisdiction to carry out the
terms of an award which directs the ](aynient
of money, although the refereiici; contained no
submission to p,ay, where the reference has been
made an order of the court, and will in such a
case order a reference to the master, and nit
oblige the p.arty to sue at law. Ariiixtriiinj v.
('(ij/tei/, 2 Cliy. Chamb. lO.S.- -VanKoughnet.
A defendant contine«l in close custody under a
writ of arrest, may aindy to this coitrt for his
discharge iinder C. S. IJ. V. e. 20, s. 7. Lairnon
V. Crvohsliaid; 2 Cliy. Chamb. 413. — Taylor,
Si'crvkiry,
"■if.
I • I-
m
I !
r
_. t 1 H...L
',ti!
5fl
i|:
r. t
859
COURT OF CHANCERY.
m
lll'lll t',!
The jurisdiction of equity iii the case of lost I court, which orders the parties to poifdi
lionds exists also in the case of bonds which award. Pomeroij v. lioswdl, 7 Cliy. Ha
have beoii .lestroyed. Conntu of Froiihnac v. -p,,^ ^,j„^^ ^.ji, ^^^j. ,.^,f^,. jj. ^^ ^j^^ ^^^^^
yim/(«, 17 Chy. ()4i). judge to settle the amount of c<.iui.oiis;,ti(m ,,
Tliis court Ims no jurisdiction to give relief to ] coniniisaion to be allowed to an udniiiiistr,,t,ir,,
Burt.'ties on a recognizance in a criminal pro- j executor, but having ^)ossession ,<i tin sul,j„4
ceeling. linstall v. The Attonwii-drmnil, 18 i matter of litigation wdl finally di.siiijsf „i ^
Chv. 138; reversing .v. V. 17 Chy.' I. | rights of all parties. McLcuimi, v. //.,/•,,,■.;,;
Where a plaintitt' liled a bill for an injunction
A judgment recovered at law by tl
and payment of .lamages, ami it appeared that' "l J-'-S""^^"" — ---; ^'-j^v.v u,.,,;,,,,,.
' ■ • [lained of ha.l, without his l^;"-* :"^^'l"'«-'":''-'"V'^. «>f *!'« <!i=.fendant n. tlu.. a.ti.„;
the wrongfid act comi
knowledge, been discontinued liefore th
was connnenced ; -Held, tliat the court had not
jurisdiction to make a decree for the damages.
liru<kiiiii!iiit v. I'lilnicr, 18 C'hy. 488. .
gjjjj. ] will beentpared into in tbi.s court at the inst.un,
I of a subsciplent judgment creditor ; altlimi >
I the rule at law is, that only the purty t»tL
' actiiiu can move against the judgment tlit't
Mrjh.ii'ilil v. /ioii-i', \'2 Chy. 48.
Where a rule for setting aside a li. t'ii. iilmjus;
lands was discharged at law under a luati-nj
error as to the facts : - Held, no liar tn ivliii n,
e(puty at the suit of the debtor's gnintee ul tli(
lands. J'hIdii v. Tin (hituvin limil:, l.'il Ijv. I0?
The court will reluctantly iuteii'eiv witli a
, ,- ,, , . , ,i, - 1 1 ii I company's discretion where ainniii'^t iii"iriii.N
s.gne<l by the agc-nt at 1. , (the place where the I ^^^^ ^^ ^^^ ^^ ditference of " ^
insurance was erlectcil), and was ready to he
In a suit in tliis c(mrt brought against an insu-
rance company to recover for loss sustained, im
the ground tliat tile policy was not a perfected
one, and tlierefore tliat the plaintiff had no
remedy at law ; ))ut the allegations in the bill
were, that tiie policy had been <luly signed
by tlie prcsiilent and secretary, and counter-
delivereil to the plaintiff :-Helil, that these
allcgation.s must be taken in law to include \
a delivery of the policy, although it had not
actually re:icbed the jilaintiff's hands ; and on
this ground a demurrer for want of eijuity was
allowed. McFnrhin< v. Tin- A titles In-: Co., '20
Chy. 48(i.
A bill was tiled in tliis court for tiie purpose
of administering an estate in the province of
Quebec, M'liich liad ))een assigned by an insol-
vent debtor to trustees for tiie benefit of credi-
tors. All the parties to the suit, other than the
debtor who resideil in Qu , .ec, were resilient in
Ontario, it being a part of tiie agreement that
the debtor should act as manager for tlie trus-
tees, and tliat all moneys received by him on
account of the estate were to be deposited in a
bank in Ontario to the credit of the trustees. A
demurrer was tiled on the ground of want of
jurisdiction. The court overrulfid the demurrer
with costs, giving to the defendants permission
to answer, on their undertaking to afford the
plaintiff facilities for going to a hearing at the
then approaching sittings. Ortiuf v. Kililji, i\
Chy. 45, r)f)8.
II, l{K(ltSTI{AK.
Ltical masters and deputy registrars of the
court are not at liiierty to practise in partnership
with solicit'ji's practising in this court, althimgli
they m:iyiiot actually share in the emolument of
suits. MvL-iiii V. Crux.*, 3 Chy. Chamb. 4;{'J. -
JSpragge.
III. Mi.siEi.L.vNEOis Cask.-!.
The remedies pointed out by statute for the
purpose of .settling the claims of land-ownei's to
compensation for lands taken by a railway com-
pany becoming ineffectual, the court in such a
case will direct a reference to the master for
that purpose. Mnlloch v, Oranrl Trunk li. (>'.
Co., 6 Chy. 348.
Semble, that it is a contempt of a court of
common law to proceetl in this court after a
reference to arbitration under an onler of that
opuuiiii : liiit as it
appeared in this case that the daniaj;e eniniilainfl
of by the plaintiff' might be avciidtil by cLrtais
alterations of the company's works, siii.'i:i'steii
by an eminent engineer to whom t!ie matter was
referred by the court, and it l>eiiii; st iteil uw
behalf of the company that these alteratiMin
woulil have been made by the company if sii:;.
gested before suit, the court decreed tlu' niakiii'
tliereof agi'eeably to the engineer's reimrt. .I/.^,,-.
V. T/if Omnil Itiivr Xo rhjutidii Co., 13 Chy. ."ilK),
Where a will related to both real ami ]iersimal
estate, and the personal property was wnrtli at
least .t''2,000, and it was sworn that the (Hiestiuih
to be tried and determined were <jf sneh imiLn-
tance and tlifficulty tliat they could he in'ir'-
effectui'dly tried and disposed of in tliis c.iurt
than in the Surrogate Court, which stateiiant
was uncontradicted, the court ordered the re
moval of the matter into tiiis court. /'' /■>/•,
I Chy. Chamb. .37(i. Mowat.
The rule and policy of the court is to iliv
courage suits for trifling amounts, er hrdujit
vexatiously ; where, tllerefo^(^ ahill wasiikilm
respect of a sum not exceeding .s|(), iuilinliii!!
interest, the court at the hearing, w itluuit rdii-
eiice to the merits of the demand, disinis-scil tiie
bill, but witluuit costs, as the defeiulaiit eidlt,
under the circumstances, either to havt' ileiimiiel
or moved to take the l)ill oil' the llles, ir..<U/'.«.|>
V. Broirct/, 17 Chy. 33!».
The (.'oiirt of Chancery will not entertain i
suit where the subject matter of litigatimi is i
sum not exceeding £10. Where, theiefnro. alter
default was made in payment under a ikrrtc iii
forech)Sure, in a suit in which the hill wastiloi
to enforce a mortgage securing .SLS.."!.'!, a tiii.J
orde'- was refused. Sli<iir v. I'railij. S I.. -J. X.
S. 13(). -Chy. Chamb. - Taylor, .V"/v/((/v/. .'««,
also, (iUlivii V. Bmithu-iiilf, :i Chy. Clianili. 41.1.
The ('ourtof Chancery discouiitenanees hum-
cessary or useless suits against trustees. I'Mi'l
V. Dmcou, 20 Chy. 70.
The fact that a submission or awanl rdative
to iiersonalty is made out of the jurisdiction of
the court is no objection to its lieiiig uKwIe «
order of the court. He ViMmilw rt ul., (! I'. R'
158.— Chy. Cliamb. -Holinested, Hi'fern:
m
<) licrfdi-iii t'.
ly. Hi,'!.
tllO SlllTij;';,!,
iiiiiiistrat„f ,^,
l>t' tin- Mltlj,,;
llisllllSO lit ti,.
I V. // mi, ■'I/:
l>y till' i>iui,n.
; ill till! attiiptt
iitt!iuiiistaiH>
ti>r ; ;iltlii,iit»
L' piii'ty tn tL,
II li. fa. agaiiis:
I'li'i' a maten;c
graiitrt' 111' tilt
'/•, l.'il'liy. Hi;
iturl'ci'o witli i
iiif,'Ht i.ii;:iniTr-
limi : liiit :is Jt
agiM;(iiii[ilainpl
ilt.-il liy furtaij
irks, siiwusti'ii
tlifinatturwaj
Ifillg Stitod Irll
it'>'f akeratiuiH
oiii]iaiiy if siig.
I'fil tile lliakilij;
i I'fiinrt. .]!„', f'
i>., \'A Ciiy. M).
•al ami iitrstmal
:y was wurth at
at tliei|Ui'sti(iiis
i>l' suuli imjur-
ciiiiM 1)1' iivin-
1' ill this niiirt
cli statiMUi'iit
ll'l't'll tlio ft-
inrt is to iliv
(II- IllliUgllt
ill w :is tik'il ill
^H), ilKlllilllli
w itlhiut Mil-
ilismissi'il tlie
s'lnlaiit tiiiL'lit,
lavf ili'iimirei
(it unturtaiii a
litigatimi is i
tlRi-etiiiv, after
lor a (Iw'iw ill
liitl \va!itil(ji
SIS..').'), a tii!»l
(/;/, SL J.X.
■Mm-ii. See,
,-. ( 'liainli. 413.
teiKiiices uiuie-
isteea. /,»/('("
iMiiril riiitive
urisilictiiiii of
luiiiij iiiiiili; HI
.^«7.,(i r.H-
Ri'/erce.
8G1
COURTS.
862
COURTS.
I. PKri.SIONS.
1. GenemUij, 8(51.
•2. ConflirlnKj DerWionif.
(a) Pnicflcc, 8()2.
II. MlSi Kl.LANEOl'S ('a. ks, 8(>2.
III. ltl'I.F> OF-.SV<' llULES OK ('OCKT.
IV. /VlTKAL KKOll - .V('(- Arl'EAL.
V. IjEFEKKlN<f C^Vl'SEH FRO.M ONE CoCUT
TO ANOTHER — Sef TrIAL.
VI. riiOIIIUITlON— .SVc rROIIIDITION.
VII. AD.MIKAl.TY-(SVr ADiMIUALTV.
VIII. AuMZR—Si'i Trial.
IX. f'liANiERY—.SV'' Court ok Ciiaxceky.
X. Corxrv C'ovnr—Set Cointv Courts.
XI. Ekhok and Appeal— .SVe Error and
Appeal.
XII. nvKK Axij Terminer— 'SVe Cri.minal
Law.
XIII. DisTKK t Coikt— .SVc County Courts.
XIV. Un isioN CouRT-.SVf iJivisioN Courts.
XV. Heir and Devisee Com.mission— .SVc
Heir and Devisee Commission.
X\' I. 1 M PKA( 11 M EXT— .SVe I y\ PEA( 'IIM EN T.
XVII.
atloptfd in Appeal, either in England or here.
Moui-f V. T/ie Bank of /!. X. A., I.') Chy. 308.
If there be a series of decisions in thi,s country
lending one Wivy, they should he followed in
preference to a single deci.sion of an English
eimrt, especially where in it there was a dif-
ference of opinion. Sriill \. Itiih'ir, I") C. 1'. "200.
"2. ('<'»j/ir/ui<,i Dcr'inliiiif.
(a) Prar/hr.
Where the construction of a will had lieen
determined hy tiie Coniinon I'lcas, this court
held it to he settled hy their ducision, and con-
formed to it, without exjiressing any opinion on
the (piestion rai.scd. Scuiilir v. Scdiihr, l'.> Q.
B. J 00.
Where the Court of Connnon I'lcas exercises an
appellate jurisdiction, it will decide according to
its own view of the law, notwithstanding an
adveivse decision in the Queen's Heiich. J/<7»mm
V. Jfnhjlif, 8 L. J. '20. -C. V.
When the Queen's Heuch and Common I'leas
arc at issue on tiie construction of an act of
parliament, the duty of a county judge is to
decide according to his own view of the law.
^fl•/ll)l,■.^<v. linwi'lii't, 8 L. .1. "22. -C. C. Hughes.
Remarks on the anomalous state of the law
regulating appeals from (.'ounty t'ourts, so far
IriioK in Chambers — .SVe Pr.utice i as the ijuestions involved in tliis case are cou-
AT Law— Practue in Equity. I cerned. ll>.
Will Kixd's Ben(H— .SVv' Queen's Bench. I Where the Courts of Queen's Bench and Com-
•^ ■ '' " ^ I mon I'leas had given opposing judgments on the
.\I.K. Nisi Pru's — <SVe Trial. i same (piestion, this court, on athrming one of
\\- Vol KF Court— *'«■ Police Court. those judgments, dismissed tin; appeal' witiiout
•^ ' ' co.sts. Si'.itiiii v. Pdxioii, 2 E. &; A. 217.
XXI. I'ltAcTicE Court .Vcc Practice Court.
XXII. Queen's Bench— .Vjc Queen's Bench.
We arc not^to adopt as a rule the decisions of
the Queen's Bench in matters of practice, more
XXV. Court ok Requests — .SV< Division
Court.
XXVI. Court ok Revision -.SV Ass&ssment
and Taxes. '
XXVIl. Ses,sions— .Vef Jusstices ok the Pf..\ce
— Sf-ssions.
XXVIII. SuuKooATE— .S'cc Surrogate Court.
\XIll QUIETINO TlTLE.s-.SVt' QUIETING uian uiose 01 me ivxcne.picr or common l lea.s,
.\.\ii.. H „, j but should adopt whichever will be most coiivc-
, ; nient and suitable for ourselves, //mriynis v.
XXIV. IlEcoKDER's Court- .SVe Recorders /'„^-^.sw,, 3 p. lt.2,-)4. - C.L.Chamb. -A. Wils(m.
Where defendant, besides denying plaintitt''.s
title, claimed title under a deed from the plain-
tif}' to M. and under M. : Held, that such notice
did not relieve the plaintitl' from jimof of title.
A contrary opinion had prevailed in this court,
in opposition to the view taken by the Common
Pleas, but each of the judges now composing the
Queen's Heneh had, while .sitting in the other
court, concurred in their decisions ; - H eld, there-
fore, that the difference of opinion shouhl no
h)nger continue ; and the cases in this court -
Brandon r. Cawthorne, lit Q. B. 308, and C!art-
wright r. McPherson, 20 Q. B. 2")]— were over-
ruled. M,G,'e V. MrL,i,i<ililiii, 23 Q. B. 90.
I. Decisions.
1. (liiiiralli/.
A. WiUon, .1., though having an opinion at
variance with a decision in Chambers, refused
t<i hold contrary thereto until the practice wiis
settled by the court. ClurLv. Giilltruith, 10 L.
.1. m-C L. Chainb.
The Court of t!liauccry in thia country having
frequently liehl constructive notice of an un-
registereil interest to be insutfiuieiit, where such
unregistered interest was founded on au instni-
nient capable of registration, and the want of
actual notice was not wilful or fraudulent, this
rule will continue to be acted on until the dif-
ferent doctrine lately held by V. C. Stuart in
England, and Mr. justice Lynch iu Ireland, is
Held, that whatever might be the individual
opinion of the present meinln'rs of the court, and
however inclined to take the opposite view, they
were l>ound by the judgment previously pro-
nounced, aa to the meaning of the contract sued
upon, until its reversal. Tlioinnon v. Leiu-h, 20
C. P. 241.
II, M18UELLANE0US Cases.
'riie court delayed pronouncing judgment ia
order to enable parliament, if they should think
proper, to legalize certain orders of Sessions on
\':- U
,! lt:(
f I;; till
it:?':
II .-; i-:
m
11
1 i»
r
f i-
■f > I
'V
--f--':-— -
;) ,
663
COVENANT.
H\
which hirue expenditure has been incurred. He.i- \ shall be i)ai(l for at the valuation of t\v(
"■ '■ • ' - "Ac. :-F ••
Tnlhfii, 2 Q. H. ir.(!.
A covenant must be express and distinct, m.\
V. Jiintiri'n of NewciMtlf, l)ra. 294. See, also, i fcrent persons," &c. :— Held, a eoveiiunt tn
Fonnfir (111(1 the. CurpordlioH of (he Ton'nnhii> of\McFattridij(>\.
RoH», 24 Q. B. 588
Quii-re, as to the propriety of asking' tlie court ! „„t gathered as arising consuciiuntiillv
to pronounce an opinion as to tlio construction i ,„„rally by reason of something uIh'. it, tl',.. '|
of a contract for i)arliaiiicntary printing, and , iJMd'l y. Monro, 4 Q. B. 474. '
whether an action would lie thereon against the '
postiiia.Htur-general.
B. -itU.
Tdi/ltir V. Ciiiiiiihill, 33 (,>.
The court sliould not l)c asked, upon a case
stated witliout |)lc;idiiigs, to answir (picstions
which could not Ik; raised upon proper plead-
ings. //(.
The plaintiffs were sureties to dLfcnilant • .
the perforiiiance by < '. of an iigrceimnt wljir,..
('. covenanted for himself, jiis cxefiitnrs, ailinini,.
trators and assigns, to Imild ccrtiin rutta^'is f
.i;i,S(Kt, which defcnd.'uit covciiantid u/^
C, his executors, administrators and
f(.llo\vs : CSOOto be advanced "
urnig the Miift
Three of the judges in appeal being members : and the remaining €1,()(K) to lie paid nn tljiiniu
of the oliuroli society, they held tliemselves dis- | plction of tlie agreement, by tlic (■(invivaiKrtnr
([ualilicd to sit as judges, except ex necessitate, (if certain specitied premises. ( '. luii,.,! (,, .,
though no objection to their sitting was taken form his contract, and assigned it to tlic iilaintij^
at tlic bar ; liut tlierc not lieing a (luorum with- having received 1 800 on account, it w.u^nJ
out tliem, they heard the case with the otiier ' ........
judgi's, in order that a jiidgnicnt, legal in jioiiit
of fonn, miglit lie given by tlie court. lioultvii
V. '/'/(' i'litirrli Siicittji, l.'i Cliy. 4riO.
COVENANT.
T. Wu.vr CoNSTiTiTTES K Cove-naNt, 8G3.
II. ( JoN.STRl'CTloN OF.
1. Dfjii'mltnl or Iiiil'jiiiiihut, Sfi.').
2. (nil. r ('ngi», Sd!).
."?. \'iil',iHtll—S('i' C'oNTKAlT.
4. I'aml Kj-jihuHttUtii — Src Evidknck.
,\(rross ON.
Ill
Sun-
See I
IV.
1. Who 111(11/ Siir, 870.
2. I'ktutiiiii, 871.
.'i. Eri'/iiici; 874.
4. Jill ma !/('■•<, 874.
.">. Olliir Ciiiiix, 87.").
(!. of Dirixidii Court lid'i/ijl' mul his
fien — See Division Coi'kt.
7. Of Sheriff and hit Surdici
Sijrui.-F.
|)l.S(II..I!(iK OF AND K.XCl'SK KO|{ PkH-
FOKMANfE, 87l).
Pautk ri.AH Covenants.
1. A/iprfnticfshij) — See Aitrrntice.
2. //( LcdMs — .S'('<- Landi.ohi) and Ten-
ant.
;{. //( Murlildijcn — Sec MoKTCAIiE.
4. /n Policin — See Insikance.
">. For Tith'—Sec Covenants foi; Title.
I. W'h.vt Constititte.s a Covenant.
Covenant cannot be sustained on the i)roviso
in a mortgage deed, to pay the mortgage money.
Mdrthi V. ll'(/<«/.-, T. T. 3 & 3 Vict.
A lessee covenanted to build on the demised
premises tluring the tenii, "provided always,
and it is the true intent and meaning of these
presents, and the parties thereunto, that at the
expiration of the uemise the buildings erected
1^
Miin]ur.
sliewn that defendant was any partv tn tl.
assignnient. Tlie plaintiti's anirdi'tViid'.int tlur
eiitereil into an agreement, (to wliiuli ; '. w;i,,
party,) reciting C.'s previous contract : tliei'
tiffs' lial)ilit.y as sureties tor him ; his
formance and .assignment to the plaintiiis; tlun
the defendant, at the plaintiti's' ivi|iiLst, hail
agreed to give further time for tlie cdiiijiktiunui
the contract ; and that in considciation oi th^
premises the ]ilaintiffs covcnantt'd to lini.sh tlit
work according to the lirst agreement : and tln'
parties mutually bound themselve.^ in CI,(»iNli,,|
the performance of this last agreement : iliM
that there was no covenant, cither ixjin^s (,r
iini>lied, on the jiart of the dcfcmlaiit t imv
to the plaintill's, or t<i pay tliciii fl,(l()(l. |;,,l„|j.
son, C. .1., diss. //(('/ il ul. \, Cilniunr Mi)
B. 4!»2. ' ' '■
Upon a contract to do certain wurk witijin a
specitied time, w itli a penalty of t'4 per week in
case of default, as rent of tlic ]irciiiisc's : IkM,
that the condition to pay the t'4 ]«r Hwk,
although not incorporated in the s|n(.'iliiatiHiis,
formed a covenant on the part ot' tlii' (Itfiiulaiit
to jiay that sum for so long as liisciiiitiact.-iliHiiM
remain unperforined alter tlic day limit.;.!.
Richards, . I., diss, lldskht v. ir((/i.<, ilC, 1'. ,'114.
I'laintiff g.ivc dcfcndiint a bill .it .sale uf nr-
tain timber, in which was contained a pniviw
for making the .same void In case the ileleinlant
should pay to the plaintitV t.'JtIO, .iml intenst.
on a day named ; and it was aihle.l, "Imtif
default be made in payment of said C'JOO in jiirt
of the whole, contrary to the manner and innii
aforesaid, then it" (the bill ot salel "^liidl ic
main ami be in full fiuce and virtue :" Held..iii
demurier, that the deed did not iinimrt a [mi-
mise to pay, and delit would not lie. Mchin'ili-
lin V. Bronsc, 1 1 q. B. COO.
The plaintiff' demisiMl to dcfendaiit certiiin
premises at a yearly rent, wiiicli detenihnito.vf-
nanted to pay ; and by the same instrniiuiit it
was further witnessed, that "in iiiii.-<idei'atieinii
.^300, of which t.'iO was paid down at the etise,i!-
iug hereof, the receipt whereof is herehy .lekimw
ledged, and the other moiety is to lie [laidiintlic
30th December, 18()2, with interest in the iiieaii;
time payable yearly, half yearly, or ijiiarterly, '
the plaintiff sold to defendant the Innisu mi the
land : — Held, that defendant was lialile as on i
covenant to pay the unpaid moiety of the pur-
chase money. Joneph v. Todd, 23 Q. B, 80.
iU .k
twii iiiilif.
ant ti) jiav
istinot, :in,|
I'titially ,.
ill till' lit,,
;ffiiilaiit <>
'lit wlllMVij
ii's, iiiliiiiiii'.
'■lltt.lgl.'S i',,
'I t(i [lay V,
I andiyiis, ;,,
ig the Willi,
mi tliL'oiit
.I'NMlli'l'tuI
ailcil t'l inr
lit' lilaiiitill*.
It \v;ui ii„t
[lai'ty tu til,
iVlllhlllt tlm;
I'll ! '. \\:i,< 111,
ct ; till' iiliiiu-
; llis llnll]!,!.
aim ill's; that
ivi|Uust, hiiil
i'iiiii|ilftiiiniii
ration (it til'
t(i liiiisli till.'
out : ami tiic
1 in ti.OiKii.ir
incut: lliil,
vr i'\\twf* cir
ant til I'liiiVfV
I.IKMI. Ui.liiil.
Cilnu.m; ',1 1,1.
viii'k witliiu a
!4 (iiT wt'ck ill
nisrs: HuM,
.'4 in-i' wi'i'k,
Isiifoilii-atimis,
tlif ili'fi'iukiiit
ntiai't .■'hiiui.l
(lav liiiiit.j.l.
>■, IK'. r.;ii4.
il s;ik' (if aT-
IrmI a in-iivisii
Itlu' ili'kiiilant
mill iiitiRSt,
i-il, "ImHf
t'.'iOO ill |i:irt
iici' aiiil iiirni
llfi "slialliv-
Hulil.iin
|iniiiii't a p-
lilaiit cirtiin
ItVmlantone-
Instniiiu'iit it
lisiikTatiiiiioi
lit tlif I'lisfal-
Irfliyiiikiuiw-
liL'iiaiil'nitlie
1 in the ineaii-
Ir (|uartiTly,
liuuse on the
lablu as on >
; of the pur-
b. B. 80.
865
COVENANT.
866
Helil that the mere words, in the ]>r()vi8<i of | and further, tliat B. ahould furnish socnritius for
innituaL'o "in three cciual payments to he j tlie due iierforniauue of tlio al)ove agreement on
'*. id'C'tivi'ly made," did not eruate a covenant to , or before the "iOth day of .lidy :--F{ehl, that a
"^"^ V the anionutssiieeitied. Juckmn v. Ycumitiix, retjuest hy H. for, or the granting hy A. of such
l'<l (' 1'' 3!'-l- I ''•'"'^''' ^*''"' ""* " eoixlition precedent to the right
, . .-a' 1 1 f 1 i "f H. to have the Mtavcs delivered, tlie covenants
An indenture between plaintift and defendant ^„ ^,,^ ,^..^^^^ _,^,,_, ^,, ,,^,,i^.^,^ the staves being
,,,itc.,l ti.at detem ant wiis the <.wner and ..ceu- i,,,^^^^^^^^^^ - »
nitrot' leitain tnnber hniits, and had agreed to
L'pendent. Li'imtinl v. WnU, 5 C'. I*. !l.
".ll'tii tli>' plaintitl'all the siiuaretinilier growing , I'lion a contract extending over several years
♦1^ .r Mil a siiccilied length for J*!, 000, the receipt for work and labimr to l>c paid foi' by iiiHtal-
f whiLli «as acknowledged, a.i<l witnessed that , nients, the defendants admitted part perforni-
tl . nlaintill "had a riglit to cut, make, and ance of the contract iipmi wliicii the action was
Iriwi'lf the said timber until the loth of A]iril brought, and ]deaded general non-peiforinancc
I ,i,,t liiiii;cr:"Held, Hagarty,.!., doubt- to the satisfaction of their ollker named in the
contract, and that thorough and complete per-
formance was a condition precedent to payment :
Held, that by payment in part they wc;e nol.
barred from claiming lull performance, and to
tlie satisfaction of tlieir ollicer, as a condition
precedent, the contract being in consideration of
)f plain-
V. r;i,i
ill,- that taken "altogether the instrument con-
tui'ieil a ciivciiant l>y defendant tliat he owned
the limits, and had power to sell and give the
iihintilV a rii,'lit to remove the timber. LniL v.
riaintirt- and iccndant entered into an agree- ,,,,• „,,„.^,„. ,^,„i „„t j,, ,,.„„i.u,r,uion of
i,K.„t aii.U-r seal, l.y which the pl.anitin .-.greed Jj,,..^ ,.„vcnant to perform. ('o„lsin„-th
t„ci.iivey to defendant certani land 't'lrNOO „f Toru,,.:, iO ('. V. TX
imililc in the manner specilieil : -llclil, i" ', , , , , , , . .
am.'miit to a c.ivenant by defendant topay the Defendant leased to the plauitill certain pre
liiiiliey.
lin-ni v. Varmrd, 3'2 (l B. 173.
mises for three yeais fio'ii the 1st of May ; and
the plaintitr covenanted that, on or before said
1st of May, he would give to defendant two good
and sullieieiit securities for the iierformance of
plaintitl's covenants in the lease : Held, that
tile giving such security, was a condition preee-
ilent to the jilaintiff's right of jiossession under
the lease. Miir/ili;/ v. Srarlli, l(i Q. H. 48.
Declaration, that the plaintiffs agreed to coni-
t the time, to convey I'OO acres of j,lete the ballasting of a certain iiortion of defen
11. C'ON.STHI'CTIDN OK.
]. l)i jii iiiliiit or hiili'jM iidi lit.
Whore the )>laintiff covenanted that his son
nhmiM .serve defendant for seven years, in con-
siilcratiiiu wiiereof defendant covenanted at the
L'Xiiiration o .
laiiiltiithu son, his heirs .anil assigns: Hehl,
that the service for seven years was ii condition
iiriTOlent to the right to the conveyance, dnoi/-
,i//v. /■;//».«/.//, I (.>"b. 4r)7.
Tlie (ilaintiff sued in assumpsit for work and
laliiiiir, and at the trial put in a sealed agrec-
mtiituiiiler which he had agreed to perform the
work, hy wiiicli it aiipeareil that defendant was
luiiiml til lay for the work at st:ited period.s. - -i i m » i • n i -^.a^
The work was not done according to the e.ni- '"^'''t it was pr.ivided that wherea.s tlie plaintilfe
tricf, and the plaintiff conse.piently sued in '^'^'l l^'-''^'''.'l «'»'• >-adw:iy trom .lelendmts by
a--iimii.sit, but w:is nonsuited at the trial, on the
LTHiiiul that the covenants in the sealed instrii-
iiiiiit were imleiieiident, and that he could iiave
I -iiilimthe agreuineiit lor the money although
•hi- work was nut |ier!'ormed ; — Held, that the
hiisuit was wrong, jliirtuuv. /wVic;', 3 (J. li. To.
dant.s' railway, and to construct stone culverts
anil bridge abutments at certain points, and to
do the grading necessary, &c., all to be completed
before the Istof .January, 18.")!l, provided the com-
pany should furnish cash to meet the monthly
estimates of the engineer ; and that the phiin-
tiffs commenced and were ready to coin]vletc the
wiirk, but defendants wrongfully prevented and
disclr.irged them. I'lea, that by the sinieagree-
lease bearing even d;itc with the agreement, in
which it was provided that i!HO,0()t) shoiilil be
expended by defendants on the com|iletioii of
the road before the rents should be jiayalile, and
whereas defendants were imablo to laise the
t;}0,000, it was therefore agreed tint the plain-
tiffs should work the road tree of any charge for
Where payment is to be a condition precedent the use of it, and should expend the suriilus
II a loneurreiit act, and is to be made in a certain ' earnings on the completion thereof, the amount
iiiaiiiier, tlie phiintiff must aver reailiness to jiay so expended to be t:iken as part of the €;W,(KK) :
III the precise manner stipulated. Tinnier v. that the lease so made was for the express pur-
l)'h\mili li III., S Q. 15. I'A • jiosc of enabling the plaintiffs to work the road,
, , , , . ■ 1 1- c J.U it. and raising thereby enough to enable defendants
.i. hy ileed, nij-'onsuleration of the rents, «c. , . & .j b ...
HI '
agreed
i writing
pared or iipproved hy ti. "s counsel of certain pre-
; mises,
itlie
[the latof October, 200,000 staves at the above
I premises, at a price spceitied, for whicli B. agreed
to pay said A. on certain days ; and it was thereby
I agreed that said lease should contain a covenant
I by said A. that he would deliver to the said B.
j in each of the two succeeiling yeani staves, &c. :
, I ■'. II u' It »,. • I the contract, and the detendants therefore pre-
Hlor an iroved by h. 8 counsel ot certain pre- I i. i ^.i e i- -i.! i.i i*
„ J f'li , y . . '^ , vented them from proceeding with the work, as
L's, to hold tor live years at a rent named ; i . , i r n • 1 1 . u 1 1 i i
„.; 1 1 . L- L' i. ,; they lawfully might : — Helil, on <leniurrer, iilea
saul lease to contain eertaui covenants ; and if., -^ * i. i • • i i i. '#• ,
lit..! 1 i. 1 1- i • 1 u bad, the agreements being nideuendent. I nfi'
I A. thereby agreed to deliver to said B. on i , ', ,„P it , ii i° i i n ,
Ii. W. Co., 17 Q. B. 3.54.
The deularatioii recited that the Desjardins
canal company were indebted to plaintiffs in
£13,000, wliich they had agreed to pay l)efore
the Ist of January, 1854 : that by 16 Vict. c. 54,
1*1.
■ !, '■l>:
■
: !
■ : •- 1
' ■
;
i ■■ ■ i
■ t
1
867
COVENANT.
doft'iiilantH weri! authori/cil ti> bucomu security
to the iiliiiiititrH oil ncuniiiit of miid c'oiii|iany, for
certiiiii imiirovoiiit'iitH on tlioir oaiinl to the ex-
tent of i'l'>,()()(); luiil that after hiicIi Mtatiite
(lefeiidaiifH duly covenanted with the [ilaintitl's
that tlie Haid coniiiany HJionld ])ay them tlie said
sum of t'13,(K)0 and interest, on or l)eforc tlio 1st
of .laiuiary, 1854, and that in default thereof
defendants would jiay the same. I>efendunt.s
pleaded, on e((uitalile grounds : ',i. That the ]ilain-
titl'8 had agreed to liuild for 8aid canal eoni]iany
a certain l»ri<lge over a channel to he cut hv the
]ilaintitl's to their canal, in consideration whereof
the comiiany ccpvenanted to pay them t!l.'},(MIO
on the coni]iletion of saiil work, which said sum
and •-he said channel and hriilge are the sum and
the improvements mentioned in the declaration :
that defendants in pursuance of said statute
entered into the covenant declared upon as
security for the payment hy the canal company
of said sum : that the said agreement of the
plaintiffs is subject to a condition precedent, that
the work should be approved of by the engineers
of the plaintiffs and the canal company, itc,
who should reiKirt when the sanu; were exe-
cuted, anil that no such reiK)rt was made before
this suit. 4. On eciuitable grounds, that the said
channel and bridge were not completed before
this suit. The plaintitfs replied, setting out the
agreement in full, by which it aj)i)eared that the
agreement of the canal comi>any was to give se-
curity for the repayment of the money advanced
by the {daintilfs "at the time and in manner
."vs is stated in such securities :" — Held, on de-
murrer, both pleivs bad, as shewing no ecpiitable
defence ; for the covenant by defendants was
absolute, that the canal company shoulil pay on
a certain day ; and by the agreement the money
was to be paid at the time mentioned in the
security, not to be dependent on the completion
of the work. (Inat Wintvrii li. \V. Co. v. Tin
Curjiunttiuii iif thi' Toirii nf JJiimlns, 'IQi^. B. ,V2,S.
Upcm a covenant to pay, in consideration of
certain work to be perfonned, the first payment i
to be uaile before the time fixed for the comple- !
tion of the contract :— Held, that the perform- |
ance of the work was not a condition precedent I
to payniiyit. ''»//<« v. Xickcrmii, IOC 1*. 549. j
Held, that under the agreement for the sale
of land set out in this ease, the covenants by
defendant to pay, and by ]>laintitf to convey a good
title, (m receiving payment, were iiulependent of
each other, and that defendent was resixmsible
on his covenant, notwithstanding the plaintiff's
halhs, II
cciirt
TUilnlr
inability to iHjrforni his,
C. r. 2.38.
Defendants entered into a bond, uomlitioned
that one McK. should pay to the plaintifl's cer-
tain rent in e<iual nu>nthly payments, with a pro-
viso "that the said municipality (the plaintilfsl
shall, on default l>eing ma<le by the said McK.
in the payment of the said amount nu>nthly,
give notice thereof to the said obligors :" — Held,
that the proviso for notice w-.a a coiulition pre-
cedent to the plaintiff's right to call upon the
defendants as sureties, and that notice of de-
fault not having been given within a j-easonable
time, the defeu<lauta were relievetl. Corpora-
tion of Chat horn v. McCrea tt uL, 12 C. P. 352.
Tfan question of reasonable notice is one for a
jury, but the undisputed facts leaving no doubt
what the decision of a jury shoidd be. ih,.
ordered a nonsuit tti be entered. I li.
Declaration on a deed, by which, in ciinai.i^.f,
tion of $\, defendant ansigned tn the iilainiiii
one-fourth share in an invention. i(,|- mIij,.!, ;
was applying for a patent in flic I'liitnl Ntii,.
and covenanteil to assign to him the >ainc .s|i
in such letters patent to be i.ssiicd ; ji n^,,;
ration whereof the defendant covciiiintiii tn i
his licst endeavours to liring said patent ii,l
general use in the I'nitcd States Hivaili tli'
after the patent had been obtained, tlie ili'iVn/
ant would not assign to the plaintitl. Imt wiii, !
fully sold his whole interest to (iliuis. pi^., ,'
eipiitalile grounds, that the real idiisiiU'riitii,!, j,
the jilaintitf will knew, was not tlic .s|, imt Jj.
plaintiff's covenant to endeavour tn luin,. ti.
patent into use in the United States : tl^it ti,
plaintiff wholly neglected to do tlii>, l.iit siml
against and by his conduct prejudiced th, i.'
vcntion. And so the defendant ^aiil tliat Ui^t.
any breach on defendant'.-* part, nr auv .salt l\
him, the plaintiff witlulrew from and l',i,,ki' In.
agreement, whereby the considi'iatiini iu\- ij,.
defendant's agreement wholly failed : Held „,,
demurrer, no defence ; for the two enveiiaiiif
were independent, the iilaintill' was i ntitled t"
a transfer as soon as the patent issued, and tU
non-performance by him of sonietiiinj; tn lifildn,
afterwards coulil not defeat his ri},dit ut aeti.'ii
Slorhi V. Dvim, 20 Q. H. COO.
Declaration upim defemlant's Imnd, einidi-
tioned for the perfonnanee liy cnie |(. nf hj.,
agreement, under seal, to construct a lailwaviiir
the plaintitl's, to be completed liy the I'ltli IVIi-
ruary, 1871, or within such further tinieasnii-ht
be allowed. First lireach, failure tn idnii.jtti
by the ir)th February. Second b'naeli, tailiii,
to complete within the extension of tiniealldHiil.
Plea to the first breach, that by the agiwnunt
the plaintiffs promiscil ♦<> pav !»'. fei- the wmis
.ii!2!)0,0(X), of which !? 1 00, ()()() "was to l,e paid in
mortgage bonds of the plaintilfs, ami the rest as
spccilicd, but ten per cent, was to lie rctaiiitil
out of each payment of l)onds until liie ecuuijli'-
tion of the >vork, and then to be jiaid witli tlif
last payment ; and that, although the plaiiitilf-
m.ide certain payments accoribii;,' to the on
tract, they failed to make the residue, whenh)
D. was and is prevented froui coniiiletiii^' tlit
work ; —Held, plea bad. for the covenants wirt
independent, and non-perlonnance by the [ilaiii-
tiH's was no defence. I'ori Wliilhiimiil I'ori l''i-n
Jf. IC. Co. V. Ihimble, 32 Q. H V: ; I'l' C. R ,»,
Declaration on an agreement, « hereliy dtftii-
dant iigreed to give and plaintiff to take a In*
of an hotel in Toronto, in the ocenjiatidn ni the
tlefcudant, for ten years, from the '.'Dth ^(]^.m
ber, 1873, when possession was to be given; that
defeiulant's license to sell liijuors in the hotel,
W!is to be transferred at or before pos.se.'siim wis
given to plaintiff, who wa.-, to jiay a pniiMirtinii-
ate part of the cost thereof for the iiiiexjiireil
part of the year ; and that all the furnitnietlien
in use in the hotel, and the stock of li(|Uiir9. it,
were to be ti^ken at a valuation, includiiij; the
omnibus, &c. , as well .is certain other artiolej
mentioned. The valuation to commence and be
finished on or before the 2!)tli Sei)temlier, iiut,
a lease containing the usual covenants to W pre-
glared and executed by liotli parties ; and tlut
tor the due iieformauuo of the agreement, the
801)
COVENANT.
87a
iiirtii'it lieoame lnmiiil to each other in «(|,0(H), to |
W iiiiiil I'y t''« !""■*>' •" 'li-'fttult, ns liciiii(lati!(l i
ilamaK'* '''f*'' l''"'' ' *'"'* *''" valiiati'm of the ,
fmnitmv, Ac, wan not liniHlii'il on or Iti^t'oic the !
"fltli SfiitL'nil>or, nor yut KniHluMl. I'laintiH' ri;-
riiiiil that tlio valuation wan jJiovi'iitLMl ami not i
limsluvl on or hvU,v,; *c. .soK^ly )>vthL- aots an,l !
misiM.nilu.'t of tiio defendant : Hel.l, « 1, as
the valuation was a eondition jireeeilent to tin
granting of tiie lease. »l''/i'/v/' v. Kill
P. 174.
Vv. '-'4 (
'i. Olhn' ('<"«!■<.
Where executors conveyed land under a
iMUvernf sale in the will of testator, Imt eove-
nmteil for themselves, their heirs, &e., in the
ili'Cil, for K'"»' ^'tl" " ^f^^l'^ ^^^'^^ t'"^^.V " ^''''^ l"^''"
sdiwilv iial'lf on that eovenant, and that the
L'riiiit"l)y tl"'^'"" ">* executors eould not eontrol
their express eontraet. MrDiniiilil v. Milhntill
,^.,/.,(;0. S. 10!».
Defendant eovcnantod to pay tlOO to idaintill"
ill three nniiiths after a certain day, or as soon
as the .lefeiidant returne<l from the I'nited States
after having taken possession of certain land
(whieh had heen sold l)y the plaintitl to the
ilcfemhuit,) or disposed of any mrt thereof. Tlie
iilaiiitifl' asasigned as a breach, that although
the tha'e Jinmths had elai)sed, defendant had
not mid the money, without averring that the
ilefenilant had returneil from the I'nited States,
liiiviiig taken possessiini, &e. : -Held, sufficient.
//.iiv/;;v. Ji,lwshii,-J:(l B. IIM). ,
Covenant to indenniify " generally and with-
out exception" against a charter i)arty, wliieli ;
(lefeuilants had assumed : -Hehl, under the eir- :
cumstances of tiie case, to mean rather without !
exoeptiim as to the description of claim, tlian as '
totimc ; and that the defendants would he liable
only for moneys accruing due under it during i
their coiiartnership, and thence to the expiration I
of the charter. Jim.-<y. W'nib rtt itl. ,{)(}. H. i.Hti.
Plaintiff demised certain premises to dofcn-
(laiit by lease, dated the Ist of November, 1840,
whieh'lease containeil a covenant to the eti'ei-t
thiit it shouKl he "competent" for the defendant
to lemove the then front window sashes, &c.,
ami to put the best plate gliiss windows in the
TiMim of those removed, &c., within one year
trnm the date of the lease : -Hehl, that notwith-
staiiitin^ the introthiction of the word " compe-
tent." the defendant eovenante<l to (bi the work
8i)ecified. MfDimnlil y. Cochrane, (!('. V. l.'U.
Held, that a covenant not to sue, entered into
by the creditor with the principal tlebtor with-
out the surety's consent, but with a reservation i\i
remedies against other parties, does not discharge
sueii surety, llnll v. TIkiiiijuioii, !) C. P. '257.
lictendants covenanted to pay the plaiutift'
$!Hil, and by the same agreement it was made a
condition that the plaintitf should allow liis
name to lie used in prosecuting a cLaiui in which
defendants were interested, against an insurance
compny : that he would personally present his
jarticulars of loss, with the usual affidavits anil
certificate required by the company, whenever
requesteil in writing so to do by any of the
parties to the agreement ; and that if the claim
should be defeatetl by any gross negligence of
the plaintiff, then this aureument shouhl be void.
In an action upon defendant's covenant : Kehl,
that it was not necessary that the plaiutitf should
present the necessary papers in |»erson to the
company, or on the precise day naiiictl by defen-
dants : and tliat he must be held to have per
formed the condition upon the evidence set out in
the case, which shewed that the pajiers furnished
by him were not id>jci'tt'(l to, ainl that the claim
was not defeated owing to thcii' insuHiciency.
nir, V. ir-//..< rl ,il., •_'() (,». K. 404.
The plaintill's being indebted to tlit'ilcfcndant in
the sum of .•!,S(),(HK>, and to other parties (whether
|iartnershii> or individual debts) in an amount
not exceeding .'«>'J, I (i(>, by deed dated (tctolier,
IS.'ll, in consideration of a release of the debt of
.•^SO.CXM), and of .«t,(MH) paid, as.signed to ilefen
dant all their stock in trade, Ixiok debts, and
assets (except hoiiseludd furnitiirci with a cove-
nant on ilefendant's part, that he would indem-
nify and save harmless the plaintitVs from all
debts and demands not exceeding the amoinit of
)<'2, KiO, and a further covenant liy both plaintiffs
anil defendant for .*!4,0()0 as liquiilated damages
for the performance of the covenants on both
sides contained in the deed. I'pon an action
brought niioii the covenant to indemnify, and
reference to arbitration, it appeared that the
defendant had paid idaintilfs' liabilities to the
amount of .'?l,8r)7, and claimed the sum of ^.V)!!,
he having settled that sum by setting off the
same with the creditorsof the plaintiffs to whom
saiil debts were due, sums of money due from
those creditors to the plaintiffs, being jtartncr-
ship debts due to plaintiffs and assigneil to defen-
dant by the ilee<l above stated : If eld, that the
sum so set otf (JiiS">t>) was not properly defen-
dant's property, and that the iilaintitfs were
entitled to a verdict for tint amount. Hehl,
also, that the sum of §4,000 so claimed was not
a debt due as liquidated damages upini each
breach of the covenant. Ifulhi rf'uril if itl. v.
Slorcl, \-2 (.'. I'. !).
declaration on a covenant made by the defen-
dant to the plaintiff, wherel)y he covenanted to
pay the plaintiff £37 lOs. and interest. The
defendant pleaded that the covenant was con-
tained in a chattel mortgage made by him at the
plaintiff 's re(iuest, and to hinder, defeat, and
ilefrauil his creditors, and without consideration.
I'pon demurrer, HeM, that a covenant exe-
cuted as above is only void as against third
parties, and not between the parties to it ; and
that the plaintiff, therefore, was entitled to judg-
ment. Scohli' V. lli'uxitu, V2 V. I', (i.").
If I. AlTION'S ON.
1. ]Yhi) null/ Sue.
Hehl, th h an heir could not sue on a cove-
nant with , lie ancestor to convey laud to him,
his heirs and assigns, within a certain time, the
heir not being mentioned in the eovenant, and
the breach having taken place in the ancestor's
life-time. doixlaTl v. Elmxleii, 1 t^. B. 4.57.
lender a ti. fa. lands, against the plaintifif in
this suit, in favour of A., the sheriff sold to A.
a rent charge, which (lefendant in this suit
had granted oy deed to the plaintiff for her life.
The deed contained a personal covenant of the
defendant to the plaintiff to pay the rent charge :
Bi'i
i:.\
■ 4:1' ';-^
871
COVENANT.
8:2
— Hflil, in'rHiirns, .1., that A. wiisiKPtciititU'il to
Hiif (111 the >'<iv('iiiuit in tlif iiaiiid of tliu iilniiititi'.
SiiiHliv. Tiinihiill, 1 I'. K.38. -P. I'. - Hums.
m. /'frilif'niil.
Ill etivfimiit, |>luiiititl's a>,'ri'fil tn ilrlivtT '200
tiMHe of stone I'or Imililing :i wall, ilt'tVnilantri to
jiay (iH. '.III. pur toiwi', i.e., lori'viTV 'ilti iVrt luliii'
nu'asiui', wiun tlu' wall wan trccti'il. I'laintill's
avi'iTcil dflivtrv of lit.") toi.sr.s laiil in the «all,
lint oniittiMl to avir liow many toiscs, jit the rati'
of "Jld onl)ii' feet to .1 toiso, liail lii'fii laid in tlio
wall ami nicasiiriMl tlicrc : llclil, li.i.l oil guni'ral
ilcnnuivr. MaiMnlay, •'.. ilis^. //mrr il iil. v.
\iiriiiiiii rt 1(1., I>ra. !l(>.
Ill ail lU'tioii of I'ovunant for not makiiiu' a li'a.»>u
of ]irt'inisfH, it is no ^lonml foi' .irrcstinj; tin'
jiiilyini'iit tliiit till' invniisiH arc not jiartii iilarly
wi't forth, if till' Invacli lie as di'linitivt' as the
teriiisol iIk' covenant iv |uiiv. J'uinnul v. T'llir,
4 0. S. i.V.7.
WlitTO tlio declaration set out that the moiu'v
was to lie (did aeeonling to the eoiidition of a
eertain liond, the lialanee due on whieh was
alleged to lie asiertained, and the hreaeh assigned
was, that the money was not (laid areordiiig to
the eovenant, lait (lid not state tlie li.daiue due,
the jnilginent was arresteil. Murliii v. iroi.(/.s,
T. T. .•{ & 4. \iet.
heclar.atioii on a eovenant liy defendant to
transfer to jilaintill' certain land to which defen-
dant was eiititleil .is the son of ,in V . K. l,oy.il-
ist, jirovided the iilaintit]" should locale the land,
jterform settlement duties, and iirocure the
iiatent thereof, at his own costs, defemlant in
lii.s eovenant .-igreeing to furnish the jilaintill'
M'itli full iiower to do so. The lireach was held
had, for not averring a ileniaml of authority to
locate, iierform settlement duties, ,tc.. with time
and place. /J, tin,- v. Kiii.jh, 1 (,». li. •_>!»().
l>ecl.iration for ]v:iyinciit of moiiej- liy instal-
ments, alleging that a sum liccame due on one
day for two instalments : Meld, good on special
deiinirrer. '/7("//(/wo// v. Cluiiiilii i:i,'2.(). U. I!ll.
See, also, Cniniiiiii v. Siiirldlr, ."> i.j. \i. 'M\.
Where a iiayinenf is to lie a condition prece-
dent, or a conciirrent act, and is to lie made in
iv eertain manner, the plaiiitill' must aver readi-
ness to pay in the precise manner stipulated.
Tallin r v. h'/'^i'iruilo if at., ^ (.). H. l.Vi.
To an iictioii of i-oveiiant, the frainl of the
plaintill' inav lie pleadeil in general terms. Axci //
V. S/Hiii;-,; ■;{ (,». It. lti!».
Deel.iration on a covonant to pay money. I'lea,
that the defendant had not lirokeii his covenant :
— Held, had oil .sjiecial deimirrer. Mitiln II v.
Linton, ") (i. B. 331.
Construction of eonveyaiice, .is to the necessity
of ivverring alHrmatively, in declaring thereon,
that the plaintill' had sold laiidti, or why lie had
not sold tlieiii, lM;tore he could entitle himself
to sue upon the covenant for the non-payment
(if a sum of money. Kmi it at. v. (laiiiliti- f/ at.,
t) g. B. '2(17.
QuaTe, whether the Hrst count of the declara-
tion, set out in the ease, was in eovenant or in
tort. ]Yarren\. Monrov ft at., 15 Q. B. 557.
In covenant ujiou articles of agreement, to re-
cover payment for certain works tnerein specified,
the defendants pleaded in general teniHilcini,,
the doing of the work and the perfdnniunv J
the covenants nieiitioned in the articjis : |f,.i,|
good, without specifying what \vorks the |i|„||,',
tin's hail not perforiiied, or wherein tliey iiiul i,,,!
performed the eoveiiantH. /liimi if ,,/[ y y
nil riiian it at., li C I*. 34(i.
The declaration stated that one
g.'iged to the phiintitl' and two otlie
unexpired term
W. (I
IlK
if ,>^.
ils t|-||»t.^
'" '''I'tani iiiii.l!,, t,,
secure C4IM) and interest, which he tin nliy ,„,,
eiuinted to pay tlioin at certain tiiiU's »|ii.i'i|ji.,|
that W. <i. also niortgaged s.iid tmi
f-'-JC
is. ImI
I tn tl,,
tliii iiii.li'n
Ins |inniuv,
Iniciit iif thiiiiMit-
lilaintill', to secure ,„„i,.ri
jiower of sale in said Last ineMtiimeij iMiirf;',i,.f
the plaintill'dnly suld the inortgigcd invmi,,.,,,,
ileliiiilant at the fullowing price tliit is tn <;»■
that defendant should |iay the inorlL:.!;.',. tn »,i,i
trustees, and L'l.'iO to the iilaintilf: tliat the
plnintiir thereupon assigned said iiniiiiscs t„
defendant, and defendant, liy the as»ij,'iiiii,nt,
eoven.anted with the plaintill' to pertnnn tlij
covenants in the mortgage to .s.iid trustees; iiii,|
the pliint ill' alleged that defcnd.nit liad imt uvy
the price so to he jiaid hy him lor
.■iiiil had not paid tlie last install
gage money )iayalile to the trustees. Iii'l'ciiihint
pleaded, I. As to so much of the liiil.initinu ;y
relates to the price or sum of inuney to lie pai.l liy
defendant to )ilaintitV, th it he did not |iniiiii.<(. I'j
alleged ; 4. As to said liriee, ii si't-nll' Inr iiiniievj
due tiy plaintill" to defendant ; .'i, As tn tln'
plaintill "s claim in respect of the iiiiirtt,';i^'c I'r.iin
\V. (1. to the trustees, a similar sit-nll ; 11,1,1
on demurrer, pleas liad, for the lirst w.is ii„t -i
denial of the eovenant sued iipuii, Imt an at-
tempt to put in issue its legal ellect : the fniirtli
and lifth were pleaded to a cause ul actinn imt
advanced, as the declaration was fur tlit imn-
ji lyineiit of money to the trustees, nut tu the
plaintill' ; and .is to the lifth ple.i, the il.iiiii mi-
I der the eovenant to pay tile trustees w.is imt
line to which a set oil' coiild he pleadeil. tluMJi^hts
not heing mutual. .Mnrtin \. Vlnrk, "JOQ. R 4l|i,
.\ plea of leave and license : Held. Iiail. asiin
answer to . 'in action of covenant. .l/i'/A,;/.iW v.
<i,;al \V<.-<lirii n. il'. r„.,'.'l (,». 11. •.'.•;!. Sw,alsM,
Giri/iiiii V. Urock, () O. S. '2'\.
Declaration that plaiiitill's covciiantnl with
defendants to do certain works within .i liniitiil
lieriod, with power to defeiulant liy six ilnys'
: notice to take the works out of phiiiititfs' liumls
in default of siillicient progress tn eiisiuv o'lii-
pletioii of the said works within the tiiiii'; lijt,
oiiiitting to set out the words, " It is alsn iiinlrr-
I stood that the work is to he carried mi iiniv,v<-
' iiigly night and day with sutlicieiit fnrrt' tn
; ensure its eoiiipletion within the limitcil time, "
\ Averment, that though plaiiitill's fiiilillei tlie
I eouditions precedent, defendants did taki' the
; works out of the plaiiitill's' hands withmit imtiec
I or jnst cause, &c., wheiehy, iVc. : - Hi'M. mi
, motion for nonsuit to he no variance, as liysco.
lOli of ('. L. V. Act, 185IJ, the aveniieiit nl ]vt-
fornmnce hy plaintitf of conditions lueceileiit. nut
denietl hy defendants, is sulhcieiit. llnnntfii
etui. V. Weir, II C. P. 17».
Declaration, hy executor of S., mi a cnvenant
made hy defendant on the lOtli of Jaimar)-, IS,'i,i,
to pay S. ,i;24(), with interest, hy iiistiilmciits.
The second and third pleas set up payment ol
,£210 under a, previous agreement to secure the
.t'i'.l
873
fiiltilmiii
COVENANT.
874
t Clf Wllit-ll tll<!
Ifcil ili'i'liii'cil (III wiiH tilt! ucicmU ilintniiiu;il wiTf tlionc iiu'iitioiu'il in
iiiii tlifHf I'lt'iVN wi'if : Mt'lil, liiiil. Icir it thii lUcil, luu' that the pliiiiititr wm nut ilrffii-
wan liiii', iiiir
i'i'|il('viii unit.
M III)! UCICMl
^iv.'ii. aim u..- , -, • t tlui.Tinl,
* iiiit allfKi''! t'"'^ ^'"' t'-'IO InriiK'il any |>;iil daiits ti'imiit,
,il till' t'-KI I'll wliii'li till! fiivciiaiit NiH'il
"iicl/, 111- til it tlicl'<' WiiH II" ntlu'l' n.iiHii
,„. a'„i.|| cHViimiit tli:lli til s.i'Ult
mil
1
til
nil WilH
Icratioii
• f-.MO.
V. AV.(«.>f/i, •-••-' <^ 11. 417.
/,'„;„•«.„( V. nniii'jiiii, -- V' ". •*".
Fifth pit"!, t''"' '>"f""'" l»l"«!llll llf till' iMlV.'llllllt
iIliIiiii'1 nil, ■"'. iuit'iitiMl frmii ili't'iiuhiiit Ci'lO in
'..MMiiii ill Hill siUisfiii'ticiii III Hiiiil Mil 1 L'-JIO,
mil lit' till' LMii'*'-' "' :"'t'"" 'liil.iit'<l nil, lill'l
liv iliiil ivUascil ili'tViiil.iiit tliiiviniiii. (Ill llf
i,;,„.|.,.|t.itlii- i-Um. ixc-pt iis til tlif nll,'K;iti.iii
,if ivliaso ; III 111. that tlif ly.tt iiii;.'lil lio ru-
iiolt'il iw »iii'|'liH.ige, iiiiil tli;it it «lif\\iil u ymul
iU'li'iii.'i'. /''.
Till. |iliM w.i^ tint .X. S. iliil iiiitiit the rci|Ufst
of ili'fciiiliiit ^^ls,'|| .'ni'l ^''''il. ''k"'! ''••* li''' I'l^'' ii"'l
ilefilili'livii' 111 thr iii><iilMlU'i; <'iiiii|i;iii\ tlu'niv
fimiit iiii'iiliuiK'il ill tli>' ''''"t I'o'H't : lli'lil, that
\ till' i|iii'Mtiiiii llf .A. S. hiving onti'i'i'il
liv tliiit I'li'ii
iilcrt'il
nil' tli'it nil r^nt
wiiiit |iriii'i'i'iliiijj;s Wore liaij in tin
Sruti V. Mrr,ii„\ ;j| (^). n. -JilO.
'I'll 11 ilfclunitiiin mi li onvt'imnt in a leiiMo
alli'^inx that ilfli'inliint I'liv.'iiiiiit.il with |i|.iiii
till' that In- wiiiilil iliniiij^r tin. ti rni .x|ii'iiil ami
I'liililiiv, in a hn.'liaiiilliki' inaiiini', ii|iiin flif
ili'iiiisi'il |iri'iiii.<i's, all tlii. stiiw w hiili mIiuiiIiI
;,'ri>w thi'iiiiii, aii'l i'liai'j,'in.{ as a liri'acli, that
ili'l'i'iiilint liri'w I'.way many u.ii,%'iiii hmU nf
htiaw which ki'<'" thiicnii, ami iisi'il it ilst.-
wluTu, ili'fi'inl.iiif |i|c:ii|cil that thi' cuvrnant in
till' ih'i'l.uMtiiiii was nut tin' wlmh' of thi' cuM'-
iiaiit. lint that it cniifaiiu'il aihlitiniial inatti'i-
iiiiii|ilcti'ly i(iialifyinn, as In iiiiitumliil, ami in
I'lli'i't niiitrali/.in;^ that part uf the invcniint sot
iiut ; til" \\ hull' alk'^'uil iiivcii ant was tlioii st't
lint, with an avi'iniriit that ili'lVinhiiit hail fiil-
lilli'il it ai'i'iinlin^' tn tli<' tine intent ainl iiiraiiiii;^
llf tin- aihlfil part : llilil, mi ilnniii irr, pica
l>ail. Shin- V. Sh'-r. •.'•_•('. 1'. M7.
Tn an aotimi nf cnvi'iiant in a K'asi', ih'fi n.laiit
plcaili'il ill snhst ilK'i', mi (.'iinitalilf giMUinls, that
liy mutual mistake the enveiiant ileihireil nn was
ilisei'ti'il in the lease in iliU'erelit tiiiiis finni
what lintli parties hail aj,'reeil iipnii, nitemleil
ami siippiiseil when the lease w.is exi-iuteil, ami
that reailiui; the enveiianta.s itslmulil liuvu been,
there was iin liieai'h therenf : Heltl, (fWynne, .J.,
iliss., plea liail. //'.
I'll !iii aetimi in covenant ilufomluut iilcadeil
never imlelitoil : Hehl, lint a nullity, Imt merely
an irregularity. Alully. i;/.ii, ti 1'. |{. (i4. .(•,
L. Chanil). - l")altmi, V. C. .t /'., Itiehanls, «ialt,
(Jvvynne.
'I'reatiiig a pleailing as ii nullity dues iint pro-
l)i'cl;iMtiiiii, that the ilefoml.aiit, by duoil, I vent it atterwanls being attaokeil iw tin irrugu-
ciiveiiiiiteil (iiiit saying with the phiintitl") tn pay ; larity. //<.
tothepliiintirt', &c. : - Held, L'nnd on (loinurrer. ^ ,
//fHHfw/ V. Iliiiiiissii, 30 (). n. ;18.
Dediiratiiiii, that the plaintill' and defomlant
anil one D. entered into an agreement under
stal, Slit (lilt, which wiw in substance as follows :
D. Iiiis 8(ilil tn defendant his interest in certain
kml 1111(1 mills (described) for ,€l,3")l), which was
held ill trust hysaid D. for the iihiintiH", and has
conveyed it tn defendant to be held in trust for
the iilaiiitilT, as it was held by D. The lion
tlarefdro which defendant has on said property
is Slid sum of i'l,.V)0 paid by him to U. I'iain-
tilf lyrecs tn pay defendant said Jtl,.'J5(), with
interest, as f(dlnws (setting out the times of pay- in an action npmi dctendant s covenant to pay
iiii'iiti. And further, I), delivers to defemlant ' oft' a mortgage executed by the iiliiintiti'to one
all the chattels on the premises, to be hehl in i <!., upon laii(ls(d(l by the plaintitt' to defendant,
iliiiiulant's uaiue, but for the plaintilY's benefit, : it appeared that (J. liad sold under the mortgage
.ml thebusiiiessto be done iiulefendant's name, I in Chanocry, in a suit against defendant, the
Imt the jmitits tn go to the iilaintiH". It was i costs of which amounted to £-lli, and that for
tli'U alleged that the said agreement being in the mortgage money reinaiiiing, after iledncting
the jiroceeds of sale and these costs, he had ob-
tained a judgment against the plaintiff. The
f A. S
iiitii the oiviiniit at the miiutl ni the defend-
ant M.n I'llt ill issue, and there being no evidence
tn sii|iii(iit the issue, a new trial was
withdUtcdsts. Sliiraiiv. I'litrk; IMC !',
|)eilar,\ti(in nn a envenant to Jiay .'#I,-KK) mi a
d:iv named, if defeiidaiit did not make a deed in
fcesiniide, dear nf all eni'uinbranees, nf certain
land speeitied, to the iilaintill', his heirs and
:u<M"iH. Itreach, that defendant did not make
adei'diii fee simple, clear of all incunibr.iiices,
(if the said I'lml tn the jdaintilV, his heirs and
a««i:;ii9, uiir dill he pay the .'«!|,4(M). D.'iinirrer,
thiftlie liivii li is uncertain, as it might mean
either that difiiiilant made no deed, or not one
iwv I'riim eiiiuiiilirances, in which ease the en-
eimilirames slinuM be stated : -Held, that the
lirvaehwas.sutlicient. Ciillijy. \\'inli'r,'l'\(l. B. :14.
.'J. Erii/fHCc
Plaintiff declared that defendant, by his deed,
covenanted not to commit waste, not stating
with whom : — Hidd, that the plaintilf could not
shew that he was suing as assignee of the rever-
sion, but must lu'ove a covenant witli himself ;
and an [amendment was refused at nisi prius,
liri'iiiniii V. Whilli'ii, {'■> (I. B. 'J77.
4. Danuiijis.
In an action upon defendant's covenant to pay
iiill torce, the defendant, in breach thereof, (lis
ti'tined updu the plaintitl "s goods, as his tenant,
ill the house lie then dwelt in on the said pre-
misis, f(ir t.SOli, heiug, as the warrant of distress
falsely alleged, the amount of rent due to defen-
ihiut for the same on the 1st Octolwr then last,
Uhereliy the plaintitt', in order to obtain posses-
uiuuof his gcKids, was obliged to replevy them,
I ami was put to great loss and expense, &c. : —
I Held, that the declavation was bad, as not shew-
jing a breach of any covenant contained in the
mreement set out; for it was not alleged that
defendant hail paid CIO to ( !. before the Chancery
suit was begun, but had not obtained credit f(n'
it :— Held, (by Adam Wilson, J., his judgment
being acceiited by consent as that of the court,)
that this sum of .C'JO should not go to reduce the
plaintiff's claim, for it was the tlefendant's duty
to have obtained credit for it in taking the ac-
counts ; and that the plaintifl' could recover for
the Chancery costs, as (J. had properly deducted
thorn, and the plaintiQ', being liable to payG
'',!
I .IJ
!
'w-
1 /
ar
1-1 r
.#if.
«:;■)
COVENANT.
litViirliiiitH, lliircfori', weft ciititlfilni
SJij
tlic ilftiticiii V tlii'ii ic iimiiiiiij,' nil till' iiiiirtK(t;;i',
WiiN I'lititli'il til Ih' iiiiiil it liv ilrtVnilaiit. .SVi/i/i /c
V. /{oii/ti.ii, '.'.'I (^. k l((.
Wlicrc A. is liulili' til pay II. a ii'itaiii mmii ini ^
a iiiirticuliir ,luy, uii.l ( '. '.nviiiaiiti «illi A. to , ImihIiiimh an u l'iirwaiii.''i"Hiil.r.mV"iV thr^
pay it. \. nil ilctaiilt may 11 :ii\i'r tlir wiinli' mini : ..il i..... i; ; i .. "i 'ii*
HIltiHlWtilUI l^lltUffll nil INiyilUJIlt ot tllr |,"|,T
mill ti»«tn. .V/iv/i V. Jni'iliiif it III., •.>;{ n 'ij ..
The nwiiiT (if Mcvcral HtcaiiiciM, carrvi
ll'nill < '., altllnllL'll III' liaH pAJtl llntllillJL'
V. t'niiiinii, ui ^l H. I ;;•.>.
ciiiii ntlu'i' tni'waiiliiiK lii'iii. ami iipnu H,,.
>al,'
l-<'ll< iiaiit.'il that III' wniilil lint iliintly „i' ili,|i|v.'!i
liavf any iiittn'Kt in any V'ssd imvir.if
A ilclitiii', ulinMc liiiNini'HK wax till- iiiamifaotiirc 1 ^^' l.awri'iicf lii'lnw njrilcnxliiii'j; ,i( *"
f rcapiii',' nia.liiiii'i, innvi'Viil IiIh piTxniial prn
ami
pt'ity til triihtiTN ; ami lui.iiij,' attci w aiiln ('oiii
piiiiiiili'il with thciii ami hi> ntlicr iTtilitni'M, tlir
tniHftt'H ( iiti'ii'il into a inv iiaiit tn rca>iMi;.>ii tn
liiin till' |irnii('ify mi cii'taiii trrniM ami iniiili
tiniiH. 'The ihlitiir lilnl a hill, .illi'jiiii;.', aliiiiii),'sl
(itlur thin^^N, a lucacli nt tin' cnNiimiit, ami
claiiiiinj,' ilaiiia^'rs : lli'hl, that hr ini^lit lie
• 'lititlnl In ilaina^'cH I'nr the ilt'tcntinii nl' the
niarhiin'iy iii'icsHary fnr lariyinj.' nii liin liiini
ni'Hs ; anil it \va« I'l'tVriiil tn tin' niastir tn
ilii|nii'(.' iiitn till' nature nf the pei'sniial jn'inierty
withhelil, ^iml, il it wan niarhineiy nrehattels nl
a like nature, tn iiii|iiii'e uihI ri'|iiii't ax tn 'lain
ilgeH. Si;, If v. U'lLinii, ItJCIiy. ISL'.
I'piiu a fni'ei'lnKiii'e suit iipmi a ninrt^a^'e t'nr
t';{.'iO, ami nil uliich mily t-.'iO hail liecii in fait
ailvaiieeil, tlie eniii't ilisallnwi'il the ailiiitiniial
t'KM), ami eimts nf the Niiit. 'I'lie ]ilaiiitill', liein>,'
tilt' asHi^iiee nf the nmrtjiage, then ilailned tn
reenver tlieHeennts frnni ileteii'laiit, his asMigiinr,
niinii hin enM'iiaiit I'm' the valiility nf the seen
rity, ifif. : -Helil, iint reodverable. SfiiniiMM v.
mhiti; II ('. I'. I ()■_'.
"i. Otliff Cilsis,
Where the iilaintiU'x, whn hail Imilt mills on a
Mtreain, liy imlenture ^'ranteil a lieonse tn the
ilefemlaiit tn make a laeeway nver their lamlH
for a mill tn lie Imilt liy the ilefcmiant further
ilnwii the stream, jirnviileil that the water wax
not tlirnwn liai'k tliereliy, imr any injury nr
tlaiiiagc (Keasimii'il tn the plaiiitiU's' mills, ami
after the ilefemlant's mill hail lieeii ereeteil, liy
an aecumulatioii nf iee mitlu' liy-wash, the water
wa» fnreuil liaek nii the plaintitl's' mill : Helil,
iiili ti,.
ttiereafter : ami alcn. that he wiiTililu,,! ,|| '"*
nii two nt her steamers then nwileil \,\ liiiiitnr
I"'"'' • ix'rsmis fnr the piirpoM, .it inni,m,i
the St. Lawreliee 111 Inw < »m.,1, ii^l,,,^!^, 'i^.p
warils llie pinprietnr tiansfernl his l,'iiH,n,.„"
tnrwanli r, ami Nnhl the twnnthei .tia r.stiii,.
smis havili;,' full kiinwleilj.'enf t his eiivi'iia„t V.I
iintwithstamliiig iniiiiiieiieeil rmiimin tin- vi .J,
nil the St. I.awri nil' helnw lli;ih.|,„|,|||.;, |' J^^''
I. ill lileil fnr that imrpiise, the nnii't lul,] t|„
nuiiers linliiiil liy the enveiiaiit entii'i
the iiri);iii.il pinpiietnrs, ami
Mil
illtn I,,
, . . - , ,, Kraiiti'il ,111 iiijii,,,:
tioii restrainiii),' them Irmn navij,'atiii;' tin. nv.-
Iii'liiw (lj.;ilj'nslinrj,' with tlmsu- vessels? //„/,',„,j,
V. yi.inii, ."i chv. L'Ts, ;i7;{.
l\'. HiM iiAHiii; AM) Kmi sK lull |'i:|.K,,iniA\, f
, 'I'lie plaintiir ileelaivil in enveiiinit mi ,|,.|i',|.
ilaiit's af^'reemeiit fnr the hire nf a steamlin.ii, |„r
which eeitain miiiiis were tn he pajil |iy juJdi
ineiits. ami it was innviileil that the iliiVinLiiit
' hIiiiIiIiI elllplny an e\)ierienie.| ami rinii|nti„t
1 eaptain, ntlicers ami' men, ami tiiat it' iniin nii'v
i iither cause than earelessiiess nr hiil iii;iii,ii;,.iiMiit
I on the part nf the master nr liamls mi Imanl ,iiL.
shoillil lie Inst ilnrin;,' the term, linn thf ii|,t:ii.
I incuts shoulil imt further he jiaiil ; ainl tljc
: plaintill' assigneil a lireach in the iimipaviii.nt
of t'l,"2.")0, the instalment line nil 1st Hcui'iiilHr,
I 184-. Defemlant pleaileil that lielin'e tli.it Hiiii
I liecaine payalile, tin; ste.imhnat frmn a iiit.iiii
j cause other than such carelessness ur liail iii.iii-
aneineiit, to wit, lieeaiise she was run intu liv a
scliomier calleil tlie( 'aiiaila, was sunk ami wiinjlv
lost, of which the jilaiiititl' hail imtici', ,iii(l tli.'
ih'feinlaiit was thereliy iliscliarj,'eil : Mild, |,l,a
liail, liccau.se the ncciiltnt was nut su liiMtilril
that the iilaiiitilVs nii^'lit maintain an aetinn fn,
such injury, ami that ea.sc, ami not covenant on , ;i« to except the master ami liaii.N mi l,i,,ui| fi i
the imlenture. was the proper form of rcmeily. '■ ''^■"'« *'"-' •"-'^■k""'' "» the loss. C.iwl.rs. Ih,.,,!
luiHlirmxl ,1 III. V. //illlirill, 4 (>. S. .'IS. " | '""• "» "• ''^- '•'■-
Where the plaintiflhas liecn awar.leil a certain : ^'''"''•'■' *'"** '* '" "" ''^■''^•"'■'' *" •"' ""i""
HUtii in accoiilanee with the terms of an iiistrii- !
meiit umler seal, for the iinii payment of such
an awaril the plaintifV shmihl sue in eoveiiaiit :
he eaiimit sue in assum|isit unless snme new ■
eoiisitleration, ajiart frmn the written instruineiit, i
can be jiroveil. '/'(lil v. .[tLiiisuii, ',\ (). H. i^^. j
against the eommamler of a steaiiiliuat I'ln- in.t
tnwinj,', &c., that he enulil nut pertnnii lii< I'l.n-
tract liy reason nf his towlinat lieiiij,' iniavniilalily
frn/eii ill the ice. Dorliiiiil v. Umii, ,-. '> i.). B. .'iS.t
Helil, that a covenant not to sue eiitinil iiit"
liy the creditor with the principal lUIitur with
out the surety's emisent, Imt with a ri'sciv.itii'ii'i
.«. Ifl. 1 lAil 1* j'i*. ■ "III' * 11^- niif^ij V ^5 »-niif^v.iii,, nill. « 11,11 .1 lf?)VI \iUll'll"l
riie ilefenilants gave a l.nml tn lli,' plaint.l i.i , ,,,,„,,.Iies against nther parties, ilncs ni,tilisch;w
the sum nf 14.1, eomlitione.l t.. jiay^ hmi t4.. a j ,„,.,, ^„,^ty. J/i,l/ v. Tln.iin.suii, !IC. |'. ■-:,:
year so long as he slimiUI cmitinue the minister I
of ft certain congregation. They paid him with- ^ Under a ti. fa. lands against the iilaintiff in
out suit for the lirst two yea^. For the iie.xt ' *'•'*• *'"'*' '" fnv"""" "f '^■, the slienlf sulil to \.
four years the pl.iintitl' sued them, declaring u|ion I '<■ '■•-'"* v\vM-gc which defemlant in this diiit bl
the lioud as acnvenant. and iihtained jmlgments, ! Kraiited tiy deed to the plaintill' for lior lifo. I'lic
which were satislied without any i|Uestioii lieiiig | "'-'C'l etuitaiueda personal ciivciiiintuf tlie(li''iivl'
raised. He then sued fnr the sixth year, and nut to tlioiilaintifl'tn pay the nnttliaixo. l^iir,',
the ((uestioii of defendants' lialiility wiis left to w'lctlier the sale to A. would not have the itiirt
the court without pleadings ;- Held, that eove- "*' <liseharging the defendant from his luvonant.
nant clearly Avmild not lie ; but th.Vc to a decla- ''*'""'''' v- Tanihiill, 1 I'. |{. .SS. 1". ('.Burns.
ration on the bond the former payments, not To an action against a iiiuiiii.ipal nir]i(iratiin
having lieen jiaid or reeeived in satisfaction of foriiot reiieAving a lease pursuant to their cuvf
the penalty, could form no defence ; and that the I nant contained in it, defendants iileniled tkt
871
(OVKNANT
878
l"lll,N tnlu,,
' 111'' ]>v\u]>
•^:<«.'. II i:
f tllni, tn,
111' >.llc (,,
"f ilhlili ■
livijlutilili
at any t
111 licit ili»|., .
Iiy ililJl tn ,ln
"I liaM;';ilii,
iiirv. Ai!
i"* liiiHiiu'M
"'iiiinrstii ]-
i'(PViM|;lll|, «1:
illU lllf VI wl.
'lll'L'. I'lKiin
•lllirt lull til,;
lIl'IT'l illtn \,\
itl'cl ,111 JlljlMl.
iitiiii; the rivft
»Mt"U. lllileniA
I'rr.KciiiMANn,
llllllt nil ,lc|(.,|.
Htcaiiiliniii, fur
jiaid iiy ihstal-
till! ili'lVlhlliut
Uicl Cllllllntllit
at if Iruiii any
III iiiaiiai,'i'iMiiit
1h nil Imanl shi
ln'ii till- iii.«t:il-
laici : ami tln'
I' iiini-iiayiiifiit
1st hwi'iiilur,
ii'i' that Mini
mil a c'l'i'taui
T liail wan-
II iiitii Iiy a
k anil « hully
itirr. anil tli-'
lU'lil, |.|.a
II ilot'riU-il
111 licianl from
til r V. Iliiuiil-
tn an actii'ii
iliiiat fi"' ii"t
ii'in III'' oiii-
' iiiiaviii'laKlv
. :< (). II. :>\i
I'lltlTlil lilt''
ili'litur witli
iivst'i'vatii'ii"!
iniitilisflurgo
II ( '. !'. i'.;.
• jilaintiff ra
■ill' siilil til A.
this suit liJil
\u'V lit'i'. Tlie
iiIthL'di'friiil-
h:iri,'0. t^uaro,
lavc the I'tfi'rt
ills ciivelialit.
('. -liuriis.
il iiirjHirati'n
tip their i"Vo
lilfiiilcil tliat
ihiv li'^'l nil imtl""'''>' '" ""'1^'' ""' I''"!*"'! I'H 'l>-
Iriiilaiit wli" wiiH III! iiiliiiliituit of thf tiiwii,
will knew wli'ii II'' '""'' '^ ■ '""' "'■'' I"'!'"'"' ••"'
tiiiu i\|'ir<''l, I' 'Ifii'"'' W'k'* 'il'taiiH.l a>;aiiiHt
,|i,,iiiii,(i,aiir.'ry, iif wlii<li'l''f''ii'l"i>t li'i'l iiotir,.
I„.,„,,, this a.lliili. iliilililiK tint tlif l.ili.l in
ii,«tniii" isili'li'"t"''' '""■" '"iii'k't m|liair Hills,
III,! that till- 111""' ''•"' '"'*'" K''""f'''' witlii'iit
„,th,iiitv, .iii'i -I'""!'! ""' ''•; '■;"'"'■;' ■ "•'•'•
,11 ilciiiiinvi. in"l' ''•"''''- il<»'/. V. //<! »■.„■/„,,-
,".,„,,,•,/„ ru,r„,.j l!m„{i:.,.l, l!M.>. II. -iOT.
IW liltiis jiati'iit, ln'aiiii>,'iliiti' III IHK). iTCtiiiii
l.„i,i,sitnati' nil till' Wiitcl'i* r<l^;i' III tlii' I'itv »i
i',,! iifii. "'1'"' >.''i"'t'''' '" """' ^■< •!"' i'"'-'it
.•.ihtainiii' a ininlitioii fnr tlif civi'tiiHi "f iiii
rMpJaninh'" iirrniiliiiu' ti> il ii'i'taiii iiliiii, uitliiii
thriT viais. A., Iiy iiiiliiitiiii', cIi'Iiiihi'iI tlic saiil
lui'ls tn M., nf willllll ]llilllltill' «aM ;lM!,lnl|ci',
with lull rnvdiaiitH a«aiiist all tlif wnil.l, ami
M civi n iiitiil til iPi'iliiriM till' I'ciiiilitidii in
tlir iiat.iit. Til.' HI Viet. <•. -M!', inaete-l tliat
niiliss the iiHlieis ilinl lesseos shipllld, witliiii
twilve llinlltlis, erect tlie eH|>laiiaile, the ei.llnpril-
timi ef the I'ity iif 'ruriiiiti' kIupiiIiI ilii it, uinl
iiniHise a s|ieeial lilte to defray the ex|iense
th.'reef: ■•ill'l l'> -" ^ i'^''' ''• ^'*' ''"''I"'' imWeiH
weiv>;i-aiiteil tn'tlie iipriioiatiipii. The eoi pipra-
tiiiiniiteied n|inii the preiiiiHes, anil Ipy lllliii;; ii|p
•ho snaee lietwerii the water's eilgc ami the
isiilmwile. ineveiiteil the workiii;.'of the iilaiii-
tilf'i mill- l''"i' ''''*• *'"' lil'iinti" liroii;,'ht an
aolii'li nil the envelliint a>,'.iinNt ilel'einlants, the
iwigiH'esipf the les«ipr ; Hehl, that as the .ut
iif the eip||iniatioli Wiii ilmie illiiler Hiipfrior
autlmrity, (the lej,'ishitnii,',) iilthoiigh tla- Mtiitiite
iliil lint exist at the time of the exeeiitiipn <pf the
le,w, ami as the Ineaeh of eovenant iliil not
arise fruiii the iie;,'lert, fiami, or iiroeureniLiit of
the lesmir. Imt fnim the non-fiiKliliieiit Iiy t\n-
Icsnee nf his own eovenant«, ilefeiiclaiiN were
Hititli'il tiianeet'eil. Siiiii-r v. /{iililiriii if ,il., II
c. r. :«).
Iierlaiatinii fnr work iinil tiiiitcriiilx in con-
-tnutiiin nf a hipiise forilefeniliints. .Sixth jileii :
tint hy ileeil, ilatecl Slst ,luly, IS7I. lililintiH'
nainaiiteil tn liiiish the workH before the 'Mat
I'l Uetnlier, ISTI, iiinler a forfeiture of $\H) per
link fnr every week the work wan left iinliliiMheil
;i:t^r that ilay ; that the (ilaintitl ilid not eoni-
I'lrte tlio works *'\\\ twenty weeks after said
ilati'. ami theiehy . 'IHt lieeiiine due from plaiii-
tn ikfiiiilaiits, w liieh defeiiiliints are willing;
H'tnll. I''niirtli reiilicalion, on ei|iiit!ilile
amis, that hy the said deed the work was to
ilniif tip the satisfaction of ,S. & ( !., architects,
aiul il any dispute arose hetweeii the parties
^ tnikhiiiji the wiPiks or the ineaiiinf; of the con-
'RKt, &e., it slinuld lie referred to S. & (!.,
hilmse award slnnild lie final : that liy the .said
iltnl ih leiiclaiits agreed to pay the plaiiitifV
IKf.Ult" on the eertilicjite of.S. &, (!. eighty jier
[ant. nil the vvnrk and ni.iteriuls, as done and
[lirnviileil, ami the lialance one niiintli after the
jwhiile liiicl lieoii eoiiiplcted, suhjeet to any de-
[traetion fnr the iiniifiiltilnientof the terms of the
ilei'il; that the plaintitl' eoinpleteil said works
Itntlicsatisfaetiiinipf S. & (1.. without olijeutinn
as tip the time within which it w.is to he done,
fither fnmi the arehiteets or the defendants :
[that the aichiteets certified from time to time,
jiw iiroviikil in said tleed, and on completinn
Uvrtilieil that the wlnilu had lieen coniiileted,
[aiKl that the plaiiitill' was entitled to be paid for
the same : that more lli.iii a iiinntli had elajiMed
after the laitt eertiliiatc was ;>ivcn : that no loin
plaint was ni.kili' Iiy defiiidants after or Ipefore that
I crtilicate, or Ipefore suit, that the work had not
Ipci'Ii coiiiplcti'd ill time, and no detraction was
siMi>.dit to l«' made fur iiinifiilliliiiciil of the con
tra> t : that dcfcinhiiils |py p.irid waived and dis
charged the plainlill from the performain f the
alleged covenant, and on i nmph'tinli ol the work
promised to iPiy llic pLiiiitill niitwitlistandin^
.inythin^' in llie sml iiideiiliiic to the contrary
cipiit lined. .\iid llial upon the faith of said
promise the plaiiitill' dcliv cii'd possession of
the pfniises to ilcti'iidalits, who accepted the
s.iiiie. Kifth replication, on eipiitalile uronnds,
that after the lireach in the plea alleged, the
defendants, for^'oiHl and sntllciciit consiilcration,
Iiy parol, discharged the pl.aintil) from the per-
forniaiicc ot the co\ cnaiit and daiiia^'es for the
Ipre.ich thereof: Hi hi, on demurrer, I. l''oiirth
replication had, for il disclosed no ei|iiily, and
was iiinltit.'iriipiis, iinonsistciit, and einliarrass-
ing : that the architects could only certify kuIi-
ji'ct to defendants' iij;lit of ilciliiction : that the
oini.ssiipn to coinplain was immaterial : that the
parol waivir, after hrcich and w itiiont conside-
ration, could not av.'iil : that the piomise to pay,
as allegcil, nii^^jht mean snlpject to tlicdciluctioii ;
and that the deliverill^ possession to the plain
tills of their own Ipiiildin^', as stated, could form
no satisfaetion ; '2. 'I'liat the fifth re|ilicatiip|i was
nood. Siiii/ifoiii V. Ki n' 1 1 III., UH <^. U. I(4,">.
'Ihe plaiiitill' sued ('. , a hivision ( 'oiirt liailitl',
and his sureties, on their covenant that the
liailitl' Would not misconduct himself in ollice,
alleging a jud^'ineiit recovered hy hiiiisidf anainst
( '., for selling his goods under execution contrary
to the orders of the plaintill' in the suit, and a
li. fa. on such judgment returned nulla liona at)
to part, and (daiiiiing to recover the lialance : -
Held, alhrniing the jiidgnieiit of the < 'onnty
Court, that the declaration was had, for the
plaintitr having recovered jiidginciit against < '.
for tli(^ tort, could not ,ifterw;iids sue njion the
covenant for the same cause of action. SIdhii v.
r,vr(.s,„-, •_>•_' «i. B. li'T. See .1/c. I /•//,»(• V. t'oo/,
l!M,». H. 47t!.
The declaration set out that the plaiiitill' was
assignee of a mortgage made Iiy one .\. to |{.,
containing a power ot sale, under which he sold
to defendant for less than the mortgage money,
and defendant covciiantiMl that "incase any
Chancery or other law luoceedings arising out of
said sale ]iayalile Iiy the plaiiitifl, he, the defen-
dant, would pay that sum," to w it, any costs or
iharges incurred liy said plaiiitill' by reason of
such Clianeery or law proceedings : that after
wards I!, liled a bill, to w liich the jilaintitl' and
defendant were made parties, whereupon the
sale Wius set aside, plaiiitill' being ordered to pay
his own costs of defence, i^c. ; and these costs
the {daintili' claimed to recover. l)efendant, in
a ple.'V on eijuitable grounds, set out two agree-
ments between himself and defendant, of the
same date, which he idleged loniied part of one
transaction and constituted the sale. Hy the
first the ]ilaintill' agreed to sell the land to
defendant for t'4(K), €50 to be jiaid down, and
forfeited on non-payment of the balance within
a month ; a deed to be given on payment in full.
Hy tile secinid it was agreed that if the plaintiti'
should fail to make the balance of his mortgage
money from A., defendant would pay it, ami all
i m
870
COVENANT.
8*1
881
costs to 1)0 inourreil in suing on the covenant, ; facts and circumstances there not furtlj, fi,,,,
"and in case any Chancery or other law pro- 1 tlieir covenant to repair ami maintain tk' Inn;,!
cccilingH arise out of tlic sale j)ayal)le by K.,"(tlu ' ing known as "Osgoode Hall," for tlnaidiinin,
plaiiititf',) ilefinilant covenanted to pay "that dation of the sujierior courts of coniinuii l,m;,r,
sum' to the phiintitV. 'I'lie pUia then stated the , eipiity ; and tliat no estopiiel arose in i.ivimii ■
liill in Ciiancerv, and tlie .setting aside the sale : , the society, against the crown, in lon-iiin,.!,,.,
tliat afterwanis I!, paid thi' money and interest [ the several acts of tiie Icgishiturc tli.it had U.
to the plaintilf, who gave uji to him all liis passed in relation tiit^reto. >'. r. "J I ( ', p o.ij,
interest in the land: and that in tlie Cliancery i |„ cnHc.pieneo of tlie separatimi ,.| tin" ,■
suit eacli party wa.s or.U'red to jiay his own cost.s : „f '|',„.„i,to from tlic countv of V.nk !,.i' ii„|;,
that tile plaintill never completed tiic sale, or • ■ ■ . . .
gave dclendant any title ; and that the cmiside-
ration for defendants covenant failed, and his
agreeineiit was ihnie away « ith hy the decree:
-IKld, on demurrer, that the ]ilea she^\t•d no
ground for ahsolving defendant finm liis exjiress
covenant, wliidi wasindepeiidciitof tlie plaintiff's
covenant to nive tlie deed, and tiiat he wasliaKle
to pay the jilaintiH's costs iiicurrcil to his own
deed
purposes, a tlced was executed lntHecii ti
respective cor)ioratic)ns, in which tia ritvtnv,
nanted to pay the i^ounty a certain anmial siu
for till' use of the court iiou>e. Tlio |\^,^.,\ .^j,
contained other agreements a.s to u.--e nf i;,,,;
This arr.ingenient «as to continue in invn imt
twelve months' notice to dctermiiir it .-sjinulil 1.
given. I5y the Law Keforni .Vet wlijcli ,..„|„
into .orce in Feliruary, KSlill, the iity was ii
solicitor, not merely costs given against him in ' „„it,,,l to the countv for jmlicial pui-pever ,,''
favour ^of other i)arties. Ar,^^^■ v. /*//•/,,/,•_>:(,„ ._,|^t March, KSli!), the city gave tli,. nmiiu
Q. H. '_'W. the stiinilated notice as to iiiteiideil ilisiimtin;!.
In I,S4(! the Law Soi iety of Upper Canada ; ance of use of gaol, stating that a.s to tlie cinir
entered into a covtiiant with the crown, in eon- i house the .action of the legislature iiad viitii:ili\
formity with !) X'wt. e. Xi, to iirovide at their • teriiiinat(!il the provision rcjpeetiiig it. and ilui;
own cost, and without further charge to the | no further payment wouhl theiefoif In madu ;
province, for all tinii' to come, Ht and jiroper j Held, that tile city liad hecn releasiil licm ii,
accommodation for the superior courts ol law i covenant to pay for the coiiit lion.se Uv tiii> l.iv
and equity for I'ppi'r l^aiiada, as thci existing' Reform Act, and also that there was im lialiility
or thereatter to he eoiistitnteil ; and in default, | for an alicjuot portion of the half years ivntHliii.;
or in ease of the huildings liecoming dilajiidated, i would have become due on "Jlst .M.-.ivli Idllciwlni.
'/'Ac ('or/innilioii of till ('tiiiii/i/ III' )i,//,' V, '/'/,.
Ciirpuralhn of the C'iti/ tf Toronto, 21 ('. I'. !l"i.
Where the lessee of goods covenaiitcil t" ii-
store them to the lessor "at the ex|iiiatiMii ni
the term, in as good order as tiny tlifii wlti'.
reasonable wear and tear only excijitid, " .mil
the goods during the term were destrnyi'il liv
tire withmit the lessee's default ; lltlil, tluit
the absolute worda of the covenant weiv imi.
tridled by the implied condition that the ^imxh
siiouhl continue to exist, .iml that I lie lc.s.stc w.as
no*' liable on the covenant for not re.stoiiiig tluiii
at the end of the term, ('/iiiiiiln rim v. Ti\mmil.
'23 O. 1'. 4!>7.
Held, also, that the excejitioii " ivasmiaWf
wear and tear excepted," referred to the nnkr
and condition of tlie goods, s.i as tn exiluilr IkiiI
repair, bre.ikages, &c. , not ■.-.iisiiig fnnii ica.'i.MiaM.'
wear anil tear, but did ii. it amount U< a giiamiitir
of the continued existence of the gneils. Ih.
On the sale of a woollen factory ami ni.irlii-
&e., the crown to repair, ki:., and the outlay to
become a charge on the soi'lety's land. On the
execution of tliis covenant, tlic sum of f(»,t)00
was paid o»-er to the society by the government,
.ind proper accominodatioii was provided by the
former for the then existing courts. Suliseipiently
the Court of Common Pleas was established, and
it became necessary to enlarge the buildings in
which the courts were held at greatly enhanced
outlay. 18 Vict. e. |-_"->, '-'0 \"ict. c. M, "J-i Vict,
c. HI, and C. S. V. C. c. \VA, weie jiassed for
raising funds for the purjiose ; and the moneys
autliorizeil thereby were cx))eniled in the erection
of Osgoode Hall, for the a<;connnodation of the
courts. In ISlJo, at the rcipicst of the society, a
certain sum was supplied by the government for
iiei'cssary repairs to tlit; building, and by subse-
(pient arrangement with the Ontario goverii-
meiit, the latter agrci^l to pay the society annu-
ally the sum of .*.S,(KK) for the purposes of heat
and light : Held, per Hagarty, C. .L, that not-
withstanding the greatly increased expense, ^
since the passage of the aliove acts, of repairing ' nery, it was stipulated that until tlie )r.iili:is<
and maintailiing the buildings, the society was nioiiey should be fully paid tlit' viihIms whv
nevertheless bound by its covenant to repair and I not to remove the maeliincry. Tlie "iiuIup
maintain them, and was not im|iliedly, much less \ afterwards executed a conveyance to tlii' .r-
expressly, released therefrom in eonseipieiiee of
the legislation that had taken ]ilace in relation
thereto. Vi'. ,/»»( v. '/'/,<■ /.air Sorhhi,'2(M' . l". 4!K).
chasers, and the ''itter, to secure the iiii|«iil
pnreha.se money, executed a iii(irtgaj;»' wliitii
purported to be of the factory only, ami diil im!
Per Oalt, .1., that the effect of H'A Vict. c. !t, ' mention the m.-ichinery : Meld, that tlu' ovi
(>., was to entitle tiie Law Society to have the ] "ant against removing the iiiachiii. ry iviiuimi
government account to them aniiuallv for the in force, ('rnirford \. l-'iinl/n;/. LS (hy .'il.
sum of $i'J<.l,(KM), and that this sum must be con-
sidcred iis a provision to enable them to perform
their coveii.int, and that consecpiently the same
was in full force. //'.
Per irwynne, J., that the effect of subsei|Uent
legislation had been to discharge the society from
their covenant. Jl>.
Held, aflirming the judgment of the Court of
Common Pleas, 2() C. P. 4SM), Owynne, .L, diss.,
that the Law Society were not released, under the
A stipulation not to sue one of twD jmlgimiit
debtors is no discharge of the other, tiimvli
there should be no express reservatinii "f rii.'bW
as against such other. 1)< irxr v. Sinirliwj, IS
Chy. CiXl
An uni|ualilicd covenant in a se])aratinii M
for payment of an anniiity to tlic «il'f I'lr lur
life, is not avoided by tin- siiliscipient iviiiiiici.itii'ii
of tile parties, or by the wife's Icaviiiji the \m\anil
without cttuso. M'dWd-v. ]\\'.(h:r, I'Jl'liy. 37.
IV.
CoVK
V.
AcTI
1. /
j MKiiei|iiity I'd
I tllf lilaiiitiff I,
i^ioiiiiMi
i^ti;i,ii^ 'ff i^;
m\
' lessee \v,n
•storing tllelll
yVi iiiiiill',
II the iifiliT
excluile liail
II re:is(iii;ilili'
a i.'u;iraiitei'
Ills. /'..
:>liil
i.'ulii-
leiiil' es were
til the ,
tliti imii
iiliirs
.r-
i.!
Itgage wliitll
III illil not
Lt tlie eevf
Iry iviiKiiiwl
I'ly. .■>1.
.1 jiiil;;im'lit
lier, tlii'unli
nil 111' riiibtB
l.s'yiiii'/in;;, IS
Jiriitiiin ilifl
|\ife I'll!' l»'f
eiiniiciiitii'"
Itli
llll:
iKiml
881
COVENANTS FOR TITLE.
882
COVENANTS FOR TITLK.
], UsiAL Covenants, 881.
11. QlAI.IFIED OR AbHOLITE, SSI.
Ill M.vrrEKS CoNSTinTiNt; a Bkkaiii.
1. Clnim* for Diiinr, S82.
•J. Cliilms for Tajvs, 88.3.
S. Miirliitiiirn, 884.
4. /'nicii'Hiiili 111 Chomrrti, SS.').
f), ittlur Motlir-'t, 88»>.
IV. 01VKNANT.S IJrSNlNli WITH THK I.ANI>,
V, AlTTllNS ON.
888.
X
VI.
PIctKliii!/, 89'2.
Er'iihiiri.
(ii) <hiii-< rrolidnili, 8!>4.
Piiiiiiujin.
(fi) Vouli /iinirrn/, 8!)4.
(1)) Olhir V<i.ii:-<, 8!Ki.
N l.K.ASK.'* -->'<''' I.AM)|.(>HI> AND TkNANT.
(lefeiiilaiit, Imt extoinloil to jiulgiiioiita .■xguinst
his gniiitor. AiLst;, v. FrniiiMon, '2i'^ Q. K '2~0.
Hull), I'olliiwiiig the List axaa, that the full
cuveiiiiiit tor ijuiut enjoymont iiiiil froeiloin troiii
inoumbraiiees, contained iuaileeil for the convey
anceot' liintl, uiw not controlled hy the restrietivo
words jn'eceding the curlier covcnanta. W'lill-
hridijf V. Eivrl't, 'Z'Z V,. I'. '28.
A covcnuut in a ilccd, jiuritorting to l>e made
in i)ursuance of the act rcMjici'ting .short forni.snf
conveyames, that the grantor " hath the right
to convey the said land to the said )iarty of tho
second part," omitting the words, '■notwith-
standing any act of the covenantor," contained
iu column one of schedule - of the .Vet : Heli',
not a covenant within the statute ; but to ine: ii
that the covenantor had the right to convey • s
he had conveyed, i. e., in fee simple. Heli ,
also, that the omission of these words did not
affect the succeeding covcnant.s for <iuiet jios.ses-
sion and further lussuranee, aiul that the defen-
ilant had ''-le no act to cncumher, by making
thcin ahsril. ■.' coveiianls, these covenants licing
iu accordaiiL'e with the form in colauin one.
lii-owii V. O' Dirif r, ."{."> (J. H. 'AM.
See Shin v. (liiti:i H <il., -Jl (}. H. 41!», p. 88.').
111. MaTIERS CoN.STlTUTIN(i A HHKAlH.
1. Clii!iii.i for Doirir.
It is no hreach of the covenant for seisin free
from cm .nnhrances that tin; coveiumtor's wife is
The Caiiiiila Company, l>y their charter, are | alivi' and has not haricd hei- dower; nor is it
iidt ixi'iiiptwl friini giving to purchasers of the | any lircach of a covci\ant for further assurance
liiiil.s granted to them by the crown the usual j that a di'cd of release of his wife's dower was
iiiveiiaiits ajjaiiist their own acts; ;'nd as to land.'j i tendcretl to the covenanto'' to be c.xecutiMl, and
luinteciU'i-iim private imlividual.s, the company \ refused. /Imrtr'-. /iiii.-..i, K. 'I'. ,5 Vict. ; Noiil v.
will liv rei|uire(t to give the same covenants a ! Wiilili rfii'lil. 't i^. H. ISO; Dark- v. (.'iirrif, \'2 Q.
iUi'itlier veniliir. Scurlil/ v. Ciiiiiii/n ('oiit/miii/, j B. ',V,H ; II'i/.m/i v. H'cjijur, 'HSK). V>. S."").
IChy.Cl.anil.. <tO. Ksteu. Semble, pel -Macaulay, .1., that if llie woman
liiasuithya vcuilor for specilic pertormaiice. i .snrvive her liuslmnd, an aetion on the ci.veuiiiit
nhmtlie vemliir is ordered to execute a d>cd ^ f,,,. further assurance wdl only lie upon tender
,to1 the vemlee to e.xcLutc a mortgage : Semblc. i ,,f m, ,,•/;,/,„/ ,;onveyance to pass f,cr estate,
tint it «i mill he improper to insert a ]iower of i //,„y/ v." Wulihrliilil, h (l I',. I Si!.
T. UsiAi, Covenants.
"I'siial covenants " in a coiivoyance to a pur-
clia-ser extend oidy to the acts of the vetidor, if
himself a purchaser for value ; if he take by
descent, to the acts of himself and his ancestors ;
and if l)y devise, to the acts of himself and liis
devisor, ddiiilil,- v. MiKaij, 7 ('. I'. 31i>.
de ill sneli niort;!:ij;e, and. l/uiere, if the deed
merely i ontaius iiiialitied covenants, whether the
iiiortgau'e slinuld ciihtiiii .my ithers. Mi'h'inj v.
/;. . <',' I ( 'hy. ( 'haml .. -JOS. " Sprn- j- •
11. t,)r\i,ii-n:i) oh AKsoi.rr"''..
llefeiidaiit conveyed hi. "(if'ty of redemption
iiieertaiii linil to the pla.'tti t'. sitbjert to two
iiiiirtj'ages, one iiiaile by himseh', the other by a
»tr.iii){er, eovenaiiting that notwithstanding ;iny-
thing dune liy him he was entitled to such
n|ility, and had gooil right to grant the same to
|i!iiintifl •, that the lauds were not snbject to any
iiieiniiliian.'e hut the mortgages mentioned, anil
that lie li\d done or siirt'ered nothing wlu'icbv
'I'lic phiiiititr declari'il nii the covenants I'nr
seisin and i|Uiet enjoynuMit, alleging as .i bn at h
the [irosiective claim for dower of ilcfendaut's
wife. The del'endant by liis plea set u|i ,i spcci.il
iigreeineiit with defendai.t, by which the claim
for dowir w.is I xcluded from the operation of
the covenants, and provided for li> a certain
bond. Tile bond ha\ ing been .set out on oyer,
the [ilea was held bad, for not describing tho
boiiil correctly as regards the rta'ital, or setting
it out according to its legal effect ; but the court
gave judgment for defendant, on the ground
that a piis|iective claim to dower is no lireach
either of the covenant for seisin or ipiiet eiijoy-
nicnt. l,>uare, howevei, whether the intention
neheiiuityioidilk. affected; and further, th.at ' ",'' thM';"ti*-->' 'j'-l ";'t sulii.iently apj.ear from
the plaintilr might nuietly .:n,joy the land .after t''^' '';>'"' t-' cuab <• the court to stay jiroceedings
the 1st nf .Novenilier next
tni
th;
tornier eoaveyaiiees, mortgages (except the
iii"rtgaces referred to), judgments, especially
■my and .ill uiiilisehargod judgments registered
waiiist the lands of the defendant, and of aod
jMm all manner nf other ehargua and iiicuni
I this action as being against good faith, unless
H'hv. ;t:
e Istnt .Novenilier u. xt, without interruption " '•"?' ."^,';' !" ■"* 'J'"« again si ^-oou laan, uniess
ini the delenilant o. any other person, and I ''''; l''-""'^'" ",ould swear that the agreement was
at free from all arrea.s of taxes, and from .all '"!* «,'"'' ^^'^ "."^'K'-'l ''.V 'tofcu. ant. (,)u..re also.
' whether, taknig th.' bon<i and award together as
oiu; instruiuelit, the coveliuiit might not be read
us containing an exception of the claim for dower.
ThornhUl v. .loiux, V2 Q. H. 'j;jl.
- _ j,„ , One T. .S. conveys lands to one I?, with full
i tanecs wh.itsocvor : ~^HeM, that the last coven- covenants. R. conveys by a similar deed to plain-
I Mt was not restricted to judgments against tho ] tiff. T. ,S. dies leaving a wife, who recovers
i is
• f :■ i\W'. .'-3 tV^ltll
I I
1
'1
'"if
K83
COVENANTS FOR TITLE.
Ill ;
*(•
judj/mcnt U>v hvv ilowi r. li. jiays liui- a certain
8111II in ac'tiiril an<l satisfaction : Hfld, that the
recovery \va« a Ireacli of the covenant for (jiiiet
en.joynieut, wiiic'i is piospective in its operation ;
and tliis thoiigli the |ilaintii}° wiiH never evicted,
and no dowcr assigne<l. ''iitlihi,-! v. Sfrcft, I) <J.
r. iir..
Declaration on ai<ivenant for <juiet enjoyment.
Bleach, t)iat one '■'. (i., an the widow of .1. (i., .
ehiinied dower to wliicli Hhe wan entitled against
plaintill, and threatenid to evict liini from
one-third of the Ian '. ; and ])laintiH". to protect j
himself from eviction, wha coinjielleil to pay I
.'JI.'K), and other large sniiis, to settK said claim, |
iiiid to jiroenre a release from K. (i. :- Held, on |
demurrer, ilchuatioii gooil ; for that the ]ilaiiitiH' i
was not oliligcd to delay settling the claim until
a jiiilgmeiit ill dov.er hail lieeii olitained, iiincli
less until eviction. .M-<'/i<r< v. ilr<'l'ftii> 't nK,
1<M'. I'. I4!l.
See y/.xA/;-/.-- V. Il„'lri,',, VM'. I'. UC, )>. S<tf> ;
//«. 'n-v.j»lit,sn„, 14 C. I', ll'a, p. Mtii.
■J. ('/iliiitx j'lir J'i'.ii y.
Taxes due ujiiiii land at the tune of sale, are an
inciiinliraiice «itliiii the cnxenaiit for ■piiet en
ioyment ; Imt the plaiiititf can recowr only the
arrears d.iie at the d.'.ti. of the i ciuveyiiiKc.
//tiiiiiti V. Sill''/', II <.,>. H. .",".
A sewerage late inijiosed Ity liy-law is not a
tax upon the l.md. Imt a nersoiial charge ujion
the owner. Wiicre. therefore, the iilaintiH' pui-
chaseil certain lauii from defeiidaiit.-i, in respect
(pf which tliis rate v.as for tliree yeai-s overdue,
which the plaintill paid, and also commuted for
the entire iate as allowed liy the hydaw :
Helil, that he had no right of aiti<in for either
of these sums, under the covenants in his deed
for .seizin and ijiiiet enjoyment, fre"' " from .all
arrears of fjixes and nssessnients whatsoever due
or payalile upon or in respect of the said l;uids."
Seinhle, thi't even if the rate in arrear were an
ineunibranee m the land, the |iaynieiit l>y way of
conimutation, lieing wholly optional, woiiM not
lie recove'alile under the i^ivenaiit. Moorr v.
Jf>/i>-.', -J-i tj. H. 107.
The dedaration allegeil th.at Ity indenture the
(iefendant ili<! (in ]iiirwuai.ceof theaet resjicctiiig
short foinis of conveyaiiceslgraiit to the jilaintill,
ip .ee, certain land suliject to the reservations,
&.V., in the original grant from tln^ crown ; and
eovenanted with tlie plaintill' for right to convey,
notwithstanding any lu-t of the defendant : and
i\»r (juiet enjoyment, free from incumlirancts.
Averment, that the <lefendaiit at the time of
executing the indenture, was .'3>7I..S'i in arrear for
taxe.', wliicli the plaintill' wasoliligi'd to pay, and
was put to great troulile and ex)HMi.se in defend-
ing an action lirought hy one S. umler a cove-
nant for (piiet eiijoyineiit in a deed given hy
]>laintitr to her : lleld, that the <leelaration was
liiul, liecaiise it ilid not aver tliat the taxes had
.•iccrued during the time the diifeiulant held the
land ; hecause the covenants iii defendant's deed
to ))laintitt', and jilaintilfs deed to S., were not
shewn to lie the same, and therefore a recovery
njion one might not give a like claim upon the
other; and hecaiml- tlie |ilaintitr had assigned his
interest in the covenant before the eouimeiioe-
meiit of this action, l/arry v. Anihrmu, LSI'.
P . 47»;.
I>efendant conveyed land on tlic Y,\^\.
April, IS(i3, covenanting for .niitt eiij,,vi,it|!
free from arrears of taxes. The iiroiicrt'v u '
assessed in Fehruary, and the hydaw lixjiin ,,,
rate jiassed in -Inly : - Held, (revcrsini, xl
jiiilgment of the < 'ounty Court), that tlivVv^
for.the year could not he eonsidereil as in ;ii>..
at the ilate of the deed, for the ainoinit liail /
then heen ascertained, no rate haviuir i,^,
fixed, anil they therefore could iK.t he ,,aj,r
"Ariears" means something hfhjnd in imv
iiieiit ; it implies a dutj' and a default. Soc jij
of the Assessment ActC. S. 1'. ('. ,•, ,"m, jv ,,
tended only to fix the Ksoa. yearas r'>;;,irilstjjV
and to provide that no matter when the liv.ja,
imposing the rate is jtassed, they sluijl \Km
sidered as imposed for the year; it gives nuntr'.
spective existence to the tax. r<„/„ </ y 'I'lu,';
.See MiCiilhiiii v. Don.-i, S (,i. H. |;,o_ ., jjij,^
*^. Miii'ftjiiiji .<,
Defen-laiit conveyed to iilaiiitill' ciitiiiii lani
which hail lieeii jireviously mortgaged, cuveiiaiit-
ing for enjoyment free from eiicii'iiilii.inas Mi,i
for further assurance. I'laiiitilV su.'il upon tin..'
covenants ; and it appeared tiiat lictniv ,uti"n
the mortgage liad lieen satisfied, tiioii:;li nmlji,.
cliarge was recorde<l, ami that he liail .-nM tiic
land to a third party, wlio had not W-m d^.
tnrhed in his |)ossession, liut who iiad ivfiisiil t,i
pay ]iart of the purchase money, for want iif.<inh
discharge : - Hehl, that the action could imt k-
iiiaintaineii. Kiniuihiw .Suloiiioii, 14 0. li. ()•>;)
Held, that a party giving an .ilwiliite lui,-
naiit ill a conveyance of real cstitc, .md a l«in4
conditioned that it should he \ciid upon naviiieii;
of a certain mortgage for tT-'uipun tlu' land iini-
veyed, is liahle thereon, altinuigh im \ip\\ pi,,
eee<liiigs may have hern taken niicni the ni„rt-
gage liy which the party is claimiitieil. 'Vj/;,/.
V. >>;■'/,, 7 ('. P. 4.-,(i.
I', conveyed certain lands to dLfeiidiuit, "siilf
jeet to a mortgage," and with ,i covenant lunniu:
enjoyment free from all iiicuinliiaiico. Dtlii,
dant then deniisid the same land to I', and hi:.
for the term of their respective natiiial lives, mA
v. granted and assigned to plaintill' all lii.s riL'lit,
title, and interest therein, to Imld during tlic
life of I'. The mortgagees or tlicir asai-ino
lirought ejectment against hotli plaintilf wiill'.
when the )>laintill' paid the am.. nut ihu' iiiidtr
the mortgage, and then hroiiglit an avti"ii
■against defendant for money pani tuliisiiw;
Held, that he coidd not recover iu this loniu.f
ai'tion ; Imt, Senihle, his leincdy wmdd U ")i
the implied covenant for ipiict ciijnynnnt oni-
tained in the life lease to 1'. Sii'i'ln- v. .v«*'.,,
'_"j('. I'. ;<(ii.
Un the salt! of land, suliject to a imorranrt-
gage liy the vendor, not then dnc. tlii' wiiJur
covenanted with the jmrchaser, 1)., that lit had
not eiieiimliered the proiierty, and It, ixi'tiitfd
a mortgage for his iinpaiil piirclia.<e nnini'v. Tlif
intention was, that the vendor slioiild jav dit>
prior mortgage, but he failed to do an. .Vftwit
iKjeame due, lie sold and assigiieil H.'i< iiuirtgw!
to the ^ilaiiitili', who had notice «( all tlio fai* ;
the planititt' afterwards obtained an .uwijnmwit
of the prior mortgage, and H. jiaiil nlFtlii'SMii':
—Held, Strong, V. C, diss., that H. wastiititW
■ i;itli .;
l-lli(iyil«:l.t
(uTty *,.
lisiti;; X'.r
i.Tsiiii; \i,
l^^ in arri.v.-
lilt li:ii\ h-
iviiig Ut;
•i liu jiai''
111 ill iw-
,t. Sec. 'u
<'. ."), is it.
giirdstiiJip,
tlu' liv-la>
Vfsiiiiivtr ■
'' V. V'.r,,;.;,.
i:.o, 11. ;v,ii.
rcrtuill l;iii';
t'll. iiiveililM-
iiilvtiiiKvs iim!
C'l UlKIll tll«r
liotiir;' udiiin
ll(ill:;'ll licnliv
hail siild tlif
not lifiii iliv
li;iil ivf'isi'il t"
If w ant III' sikIi
1 loulil nut In'
. 14i^lUl-J:l
allSililltl' (■n\c-
itr, ami :i l«in'l
iilHin isiyiiieiit
1 tin- laiui om-
11(1 lo^'ii! Ill"
mil till' liliirt-
lilifil.
|fi.'ii'lant, "siii'- I
fiiaiit luniuirt
uu>.>. iK'ifii-
I to I'. aiulwilV
Ituial lives, Mill
llV all liis ni;lit,
ilil iltiriug tilt
Itliuii' asaip'iin"
lilai
iititV will
Ul' UlliltT
lint il
lit an actii'U
|l til hisiiso:
tliii-inniii'!
wimlil ln' "'J
liijiiynK'H' '""■
III- V. Siw'
a 11
■•or iiiiirt-
Tlif
Jan .i-i*i>.'i
Il (itT tlK' ■>»
IB. wasci
m
COVENANTS FOR TITLE.
886
, , „,,„lv ,111 his unirtgagt! the iiioiity so paid by ,
i„ thf iilaiiitifl'. Jhiii/iUM'ii V. Hmwv, 18!
iiun ^1' I-" I
Chv. ?.'• I
4. I'l-iiriiiliiiijx In <'lii(iii-i iij. ^ I
I'liintitl lit" larod against c'Xi;i'iitoit<, .m a qiiali-
,1 iiivt'iiaut liy their testator, tlin* Im had the
ru'htt.) ci.uvey certain land, and, for .juiet posHea-
.' .i-i.^i'-iiiiii,' ay a tnva'jli ot tlii' tlrnt covenant ]
that till' tesUtor at the lime ol making tliedeed \
' „„iy a trustee of the land for one 1)., in !
wiinin tiie right to c.mvey the Hame m fee as ;
liHiielicial iiwiier was vested, and hy wlioni it
i,.,,l hicii conveyed to testator in imrsnaiiee of ii \
■fii sniracy liL'tween the testator and l>. to de- i
tniiil ""'• '^^'•' '^ -'■«'''*'"■ "f "•' *^"' ''•■"' *'''■" * i
writ 111 the hands of tlie sherill against IX's
,1, The iilaiiitiffthen alleged that W., hav-
' ,',;„vhasfd the land .it sheriffs sale on the
.xwutioi'. Hied a hill in Chaueery against defen-
ilaiit.ii ami t''*' lil''""t'ff' '""' ^"'^'^ declared to have
alien on the land for the amount of his chiini ;
■mil that although the defemlaiits ha.l iiaid the
sum line to W., they had not paid the iilaiiitiffs
ordered to convey the land and give up jMisses-
sion thereof, and of their deeds, to two trustees
named, wlierehy the plaintiti's had lost the land,
aild heeii compelled to pay costs of the suit, &c. :
— Held, that a good cause of action «as shewn :
that it was unnecessary to allege an eviction ;
and that the proceedings in LUianeery constituted
a lireach of tiic covenant. Tin Trust iiinl LiMUb
'''i.>ifrj,/,>r<iiiii"l(i v. Conrlitiil. 'M)i.). IJ. 23!).
l)ne defendant jdeaded that since action the
plaintift's had conveyed the land to ('. and M. ;
and the other, that the plaiiitiH's had so con-
veyed in pursuance of the decree, ( '. and M.
lieing the trustees ap[)ointed thcreliy : - Held,
clearly im defence.
7;r
thi' vDUiliit
, that lit Iwt
1 tV I'Xi'tutiHl
! niiini'V.
lihoiiM 'i«iy ilie
osii. .Vfterit
U.'!iiii"rtg4!ff
f all tiu' f»* ;
iinient
:Utltll.<l
iiista.'f ih'feiiiling tfie suit in Chancery :- Heh>,
that tin; lU'claratioii was had, for the covenant
fiii- right to coiivci^ wfis oualitied, and tlie writ
l„.i„,,intlifslierifl's hands licfore the deed to
the tesf.^or, the sale and suliseijuent proceed-
im« iliil not arise from any act of his in accept-
ing that ilwil fur the jmrpose alleged, tmt might
niually have taken place without it ; nor c.mhl
tk'V siilfrt a recovery on the other covenant,
,1s/. Mualilioil, if they had been .-issigned as a
',l-,i,nl It. ^V-;.-.' \'. (.'<(/..s' 'f <ll., -Jl (I. H. 410.
be ileilaratum idleged that W., defendants"
tistatur, liy inileiiture made under the act, con-
vtytiUertim land to the iilaintifl', in fee, cove-
iia'iitiug lor right to convey, and tliat lie had
ilmie no act to cncuniher ; and assigned ;is a
l.rcaoli, that before the execution of said deed
till' title was vested in the Kank of I'jiper
l.'aiuila, who cnuveycd to \V., lieing then a
liimtiir anil vice-president of, and as such a
tnistee tor, the said hank ; hy reason whereof
tiitsaiil \V. had not good right to convey, and
lilt >aiil lamia were impeached in title and estate,
111 terw ail Is many persons to whom the jilain-
ii;ul agreed to sell jiarts of said land, refused
iMsciiueiue thereof to perform their contracts;
1 till' Cinirt of Chancery, in a su't duly insti-
1 1, theieniioii d«creed the plaintiti's title to
lifntivc for this cause, v.licrchy the plaintitl'
- iiiialile to enforce said agreements, or to sell
laiiil, &>■. : -Held, on demurrer, that the
.laratiuii shew ed no cause of .nctioii, for, iiniong
lier wisons, tlie legal estate passed to the
jplailititi', the defect alleged heing an ei|uitalilc
mie "Illy; no eviction or disturbance was shewn ;
111 the alleged iirocecdiiigs in Chancery wnild
it eimiliel a court of law to hold the title bad.
:nin»i-;'/v. Wilswiit 1,1., '2'fi). R '24S.
heilaratiim. that defendant by deed conveyed
li to (inc T. in fee, covenanting that he should
ictly enjoy, without the let, suit, itc, of de-
fcmlmits or any [HTHon : that T. eonveycil to the
ihiiitiffs, who entered into ixisBession ; and ivfter-
fanlsahill in t'lnuieery was tiled against plain-
pffi! ami (lefeiidantH, and it was <lcoreed in the
Bit that ilofcnilants iiiul uo right to convey,
King tnst^es only ; and the plaintiH's were
."i. iH/,>r M litters.
No action will lie on the covenant for title
when the grantor had a good title at the time of
conveying, although the plaintitl' experienced
delay and expense in getting into possession.
( 'iirr V. J),i„i,, it t^t. H. -.mi.
Semble, a iiublic highway is not an incum-
brance within the covenant for ijuiet enjoyment.
.\f>i»r< v. Hoi'liKii, 10 Q. H. 140.
The declaration set out that in 1837, one \V.
conveyed land to K., giving absolute covenant.s
for title and iiuiet enjoymer*' ; that K. entered
and died seized, having man ? nis will in 1840,
devising "all his messuages, lands, and real
estate" to H. in trust; that H. entered, and in
1843 conveyed to the ]ilaintitl' without cove-
nants ; and that the jdaintitt' soon afterwards
conxeyed to 1). with the usual covenant for (piiet
eiijoynieiit. The deed from \V., and the plam-
titi"s deed to 1)., both contained the usual
reservation of the rights of the crown as ex-
pressed in the original grant. The declr.ration
then averred that when W. conveyed to K. he
was not seized according to his covenant, but
that jiart of the land was the property of the
crown, and was granted in I84(i to one ■!. ; that
.1. afterwards conveyed to 1'., who brought
ejectment against I), and recovered ; that the
plaintitl', in order to prevent I), from being dis-
possesseil, paiil to 1*. a large sum of money as the
jirice of the land, besides costs and charges, and
these damages he claimed from defendant in this
action as surviving executor of \V. ; Held, that
under the facts alleged, the action was not main-
tainable, lioini V. Hurt, 10 (l K -J-.'S.
riaintiffs, administrators of H,, sued .iefeii-
dants. executors of M., on their covenants for
seisin in their own right contained in a convey-
ance of land by them to U. It appeared that
defendants' only claim to the land was as execu-
tors, under a power to sell for payment of debts,
contained in ^I.■s will : Held, that there Aould
be a breach of the covenant, defendants not
being seized, for which, however, only nominal
damages would be recoverable. .Miii'ilDtniiill tt
III. \. Miinli.inll it al., ."> C. !'. 3.V).
defendant conveyed land to the plaintitT by
I deeil, uuide under the act to facilitate the eon-
' veynnce of real property, containing covenants
for rigni to convey, for (piite jtosaessiini, and
j that he had done no act to incumber, and on the
1 same day took back a mortgage in fee to secure
the jiurchase money, in which it was ^irovided
that the plaintiff should retjun iiossession until
887
COVENANTS FOR TITLE.
ilefault. IVfoi'o making the deed, defendant
had leased land to one I)., to \t'hoin tliu plaintiff
was (il)liged to pay .£(50 to obtain possession : -
Held, that this sum cimld not he recovered as
money (taitl, and that the plaintill' eouhl not
flue upon the covenants in the deed while the
mortgage continued in force. I'l-nrtor v. ilnnihlf,
\{Hi. 11. 110.
I'laintiH' purchased from defendant two lots of
land, taking tlie following receipt ; deceived,
(Joderich, Hitli June, ISoT, from A. (!., in pro-
missory notes and otherwise, the sum of t200
ey., for transfer of lots 11 & I'J, in the 8tli con-
cession of the township of Turnherry, to be
procurrud from the original loc atcc on or l)efore
one niontli from this date, and peaceable po.sses-
sion to 1m' had of the land, or the consideration
of transfer to be returned." 1!. had purchased
from the crown in 1854. He assigned to dcfon-
•lant, and defendant to ])laintit)', who went into
pos.session, but one K. immediately claimed one
of the lots, and forbade him from working on
it, whereupon tlie plaintitf desisted. Tlie plain-
tilt' soon ufterwanls, with defendant's consent,
arranged verlially with one M. to assume liis
Imrgani, and M. went into ; jssession in January,
I8.")S, and remained until October, 1859, paying
three instalments to tlie irown in plaintiff's
name. It was shewn tiiat in Novcml)er, IS,">4.
two months after the <'ate of l.'.'s purchxsc, a
receijit was given by the crown to H. tor tliis lot,
treating him as the purciiaser ; and it aiipeareil
at tlie tiial, but by verbal e\ idciice only, that in
.Ajiril, IS."!".), tile commissioner of crown lands
decided in favour of H., and that he should pay
M. for his improvements, which lie had done.
M. in ci>nsci|Ueiice gave iij) possession, and the
plaintifl then sued defendant as foi- a breach of
the agreement for ([uict ]iossession : Held, that
he could not recover, for, 1. The contract was
not a I'ontinuing one, but was satistie<l when
the plaintiff' obtained peaceable jiossession ; '2.
"When H. wai'iied off' the plaintiff, he had him-
self no right ; and, H. There was no sufficieiit
evidence that the sale to I!, had been effectu.'dly
avoided. r,,r/,nii,f w Mi-lh,i>,il,l, 1 1 (.'. P. 'joi
Acii.'u on covenants for seisin and right to
convey, contained in a ileed liy th<; defendants
to I'lie 1''., who li.iil coiiveyeil to the plaintiffs.
I'lea, on enuitablc grounds, that the conveyance
to l'\ was voluntary, and he k.iew when the
defendants ixccuted it that they w e'lc not sci/ed,
and hait not the right to i on\ey ; and tin- [ilain-
tiffs were aware ot these facts wlien V. cnnveyed
to them ; Held, on dcniurri'f, no defence, for
such covoiants are not in (M|iiity lontined to
defects unknown to the vendei . The [ilaintiff'
replied ec]uitalily, that T'.'sdecfl to the plaintiff
was a Mortgage, to sc( lire money then lent to
him by them, and det'endants convcyi-d tn V. for
the e.\]ircss ]iur]iose of eiialiling iiini to e.ve<iite
such mortgage and oiitaiii the loan, and the
plainti!ls were imhu'cd to lend iiy their reliance
on defendants' covenants, as the defendants well
knew. Senibic, that if the plea hail been good,
the repliiation would have been an answer to it.
Tiii.-f mill 1,111111 Cii. lit' I'jijiir Ciiiiiiilii V. Ciinvt
it III., '21 Q. l\. 120.
To a declaration on a co\ euant for ijiiiet enjoy-
ment, in a mortgage to the plaintiff's executed
by T. , the defendants' grantee, one defendant
pleadeil th.it T. did not, after the making of
that dec'l, convey to the plaintiffs. The deed
from the defendants to T. was dated •J^'ini .hn,.
ami the mortgage from T. to the pl.iintilla ««
ilated loth Aiiril, IS-V.. Both w.ie rvn^'sUM
on the '28th July, tlie deed lirst. It iiiiinartv
that there were two mortgages fnmi ')'. ui tK
plaintiffs, on another lot, when this inoitiijj
was made, and insteail of which it was i;jv,..
After executing this mortgage T. fdim,! tliutl
deed from defendants to him was iieiessarvt
give him the legal title, and he gut tlie (i,J
in ijiiestiou. The two mortgages weic unf i|.j
chargeil until the Mith August : lleld, that ti»
whole transaction shewed that the iiioit..a^',.ttj,
not intended to take effect until tin prrti'itni
of T. 's title and the discharge of tlie dtlicr indrt'
gajjres for which it was given, ajid that the ph,;,,
tills therefore could recover. Hehl, alsn, tii ■
if the mortgage had been deliveie.j h,fi,iv t*.
deed, defeiKlants could not liavi' been lialih> l,^
the ground of estop|)el, for the estoppel wniil.i
apply to T. only, not to dcfciicl,ii,t-i, '/',•«,/ „, '
Loi'ii t'li, V, Von-vl it III., ',i2 {). li. •_>•.''_',
The plaintiff, on the 4th of .April, ]^i-\ m,,„,
gagcil l.-md to L., who covenaiitcil thcivhy .'.>
ipiiet eiijoyinent by the plaintiff until .lilauli
To an action against L.'s adniiiiistiator ipn tiiu
covenant, alleging an cvictinn by iiersmis rjaim.
ing under 1,., defendant pleaded that I,, on
veyed the land to the plaintiff un the ;jbt ni
Marcii. \SM, which was the plaiiitill',> .mly title
to the land : that the mortgage sued on was to
secure the purchase money, and w.-i^ uxeLuttil
iniinciliately after the deed, and as a part ol' tlit
.same transaction : that the plaintiff hytliiiiKirt-
gage covenanted tli .t he was .■^eised' in hrmul
had good right to i.'onvey ; and that the uli'timi
complained if was an action ol eiertnunf l.ri.ii^'jit
by the heirs of L.. on the ginimd that I.. «:i,-,.!
unsound mind when he executed tin' decil ,,ii the
.Slst of ."arch, lS(i4, which was inuxfil at tlu'
tria'., and the .jury thereupon found for tlielitirs.
Held, that the plea was bad : for the aviij,]. ]
ance of the ib;cil for insanity diil net nccessarllv
involve the avoidance of the nioityage : iKir.li.'l
the estoppel ai ,,lii able to the deed eNteiiii t" the
mortgage: that .lefi'iidant should have plc,ii|„|
h.'s in.sanity directly to the nioitg.ige il hcwishiil
to test its validity ; and niurcuver the partiw
iieie were not the saice as in the ejci'tiiii'iit suit,
no; >v IS it certain from the recoi:! in ejntiiuDt
that the recovery therein was on the yriii;:i'!
alleged. A'tv/ci v. Lowri/, ."12 (,>. li. (),'t"i.
.\fter a eonveyanee inciiiuin.UKes ii|iiin t.:
projiertv soM were ili.scoveied. 'le.itiil li) a
toriner owner, but of wliieh ;: her tlie vciuiiir
hoi the piircha.-^cr had liecii pivvioibly aware.
The coven.'iiits given by the veinh'i mily t xtfU'lul
to his own acts ainl the .-icts n! tiiesu ciaiiiiiiii5
under him : Held, that the \ciid(ir Mils M
bound t" pay off the incuiidir.ue es : aiiiltiu,.
fore that the p:ilrliaser wa.< Hut elitltlcil tii<f'.
off .igainst tliein a balance o'' iiis piin'ha.<e L.iiiey
remainiiig unpaid and seemed b\ iiii>rt!.'agt'. H'
liiiiL. I',i-k v. Iiiii-k\ <; ['. 1!, !»\ ( liy (■■hmli.
.*<I>ragge, in upiieal from Iloliiiested, /.'/-rh.
IV. CovKNAMs UuNNiN". WITH tii;: I.V*i'
Where a purch.aaer mortgages the saiiic ImiU
to his vendor in fee, to secure p.-iyiiwiit "I'llie
purcha.se money, he i^annot sue the vemlur inf
breach of coveiuuit for good title, wliiii' '*
889
COVENANTS FOR TITLE.
force. Hiuirk v. Mr
890
inortL'at'C oontiiines in
/XSts «»■ ^- -"'-'■• f^"' r- '"">•'"■'>""' '4 a.
B 53; l'i'"''f'Ji' ^- '/""»'''''> 1^' Q- ^' "0.
A conveys to B., covenanting tluit " at tlie
time of inakinL' the conveyance lie was lawfully
seized of :i lierfeit and absolute estate ot nihen-
Unee in fee simple." K afterwar.ls conveys to
C reciting that he was then imssessed in his
own riL'ht of the land in (juestion : HcM, in an
■iction I'loMght by V., the iussignee of B.. against
\ uiHUi his covenant ; that < '. was not estopiied !
t B •« recital. drnM- v. /{.,.s, (I (... If. :W(i.
Uixiu iin action of covenant for title by an
•issiL'iiee of tlie covenantee, it is not essential
tbftt he slioiild shew that a legal interest passed
t„ him iimler the (leed ; his cause of action is
that lie li.is not the interest he supposed he was
iimiiirini.'. and whiih he would have had if the
title 111 the ripveiiaiitor, wiio executed the lirst
,l,,e,l, li;i.i heciigood. / 1>.
1,1 niviiiiuit for good title lirought l>y the
ivssiwice Jiuainst the uriginal covenantor, it is no
iilijection to the declaration that it docs not shew
thiit tlie covenantor or assignee may not have
lie'cii "cii'c'l of a good estate, in the land al l/ir
(inn iij ii''^ii>ii liroiiiilil. III.
The usual covenant for good title runs with
the [ami, and it is no olijeetion therefoi'e tn
;m .ictiim hv tlie assignee of tiie covenantee, !
thattwausc according to tlie statement in the I
(ieiiaratiini, "the grantor was not sei/ed in feel
wiiin he gave his c<ivenant. " the covenant was ]
liriikeii as snnii as made, ami could not enure to |
th, lifuctit of the as.signee. /'-. uplieM in .So// j
V. W-Vi, tl (.». li. .')II.
(,|n!ere, what would the etlcet he, if when the
niviiiaiit was given a third jiarty had lieeii in
advert' ]iossessiou, or if the covenantee had U'cn
tviitfil helorc lit made the deeil to the assignee.
(;„,„'./, V. //..N, ti(.>. li. :«ll».
la tlie iMveiiaut for good title, it is only the
asiiyiiee ot' the fee who can reiuesent the cove-
nantee; the devisee of a life estate cannot sue on
tilt oiveiiiuit. rl(iii-v. Il'ilii rlx'in, S (/. II. ."{TO.
All action will not lie on a covenant for title
„iiiu>t the devisees of the covenantiu'. S'a-hlr^
V •^nnih,: 1(1 <.t. r.. •.'();».
Till' ileilaratiiiu .set out that in IKUT one W,
Miiivcyed laii'l to V.., giving ahsoliite niveiiants
i.ir title and (|iiiet enjoyment : that 10. entered
jiiil died seisei!. having maile his will in 1S40,
devising " ;ill his messuages, lands, ami real
«tat«" to I'.., in trust : that H. entered, and in
18*0 coll viycd to the (ilailititl', without coveli-
uita ; that tlie plaintiif soon after loineyed to
ID., with the usual covenant for i|uiet enjoy-
K. devised to It. only .all his real estate, .ami this
land, not being owned by liini, was not there-
fore in words devised, whether H. could be
treated as holding the covenant of \V. as assig-
nee, and ;i8 a covenant running with the land.
liuim V. //.(;•/, 10 (,t. It. -Jl'S.
I'laintifl's, administrators of I!., sued defend-
ants, executors of .\1., on their covenants fur
seisin in their own right contained in a convey-
ance of land by them to li. It a|ipeai'ed that
defendants' only claim to the land was as execu-
t<irs, under a power to sell for iiaymeiit nf debts,
contained in .M. s will : Held, I. That if the
power w.'is well exercised the estate passed to
ll.'s heir, wlio must sue on the eovcnaiit, not tiie
plaintill's ; •_'. That there would he a bre.ieh of the
covenant, defeiulants not being seised, f(U' which,
however, <iiily nominal damages would be re-
coverable. A new trial was granted, to enable
defendants to )irove the existence "f debts, in
order to warrant the sale. .l/i/ciA, »./((// ,i nl. v,
Mitnh.ii.ll ,1 ,il., .-n'. I'. ,■{.-).-..
I'laintitr conveyed laml to M., with the j)rivi-
legc of drawing olt' frmn the mill raie on the
ailjoining land nf the plaiiitill' a certain c|naiitity
of w.iter tor purposes speeilied, leaving always
sulheient tnsupidy tlie mill on the |daintifl"sland.
.\iid by the s.mie indenture .M. cnveiianted for
Himself, his heirs, executors, administrators and
assigns, ti> restri' t tlnni.selves to the use of the
water tor the purpose mentioned, ami not to
takt; su.'li water unless there slioiiM be enough
witliiiiit it to supply the plaintill's mill : Hehl,
a c<iveiiaiit ruiiiiiiig with the land, on which the
plaiiititl' might sue M.'s assignees. Wnn-iii v.
Miiiirur ,/ III., 1,") <^>. 15. ,")."i7.
In a lease for years of jnemises mailetof;.,
and assigned Ity <i. as to the lesiilue of the
term to ilefendants, was contaiiii'd, after the
usual covenant to yield up tiie same in goud
repair, a jiro\ iso that nothiie_' therein contained
should be taken in any way In cninpcl the said
<«. to give up the buihlings at the expiratimi
tiiercof, w liieh arc all wooden and liable to
decay, in ,is soiiml and good a state as they now
are, '■but such Imihlings are not to be wilfully
or negligently wasted or ilestroyed ; neces.sary
rejiaii's, hciWi'Ver, for the preservation nf the
said buildings to be chme alol iicrformed by the
said (■. at his own )priiper costs .ami charge : '
Jleld, that these wonts constituted a covenant
rnnniim with tiie land, ai.d bniiml the assignees
of the lease, though assigll'•c^ were tint expressly
nil,' itioned. /'</•;•// il ii.r. v. Tin limiL- '>f I.'. (',,
IC. ('. I'. KU.
An action on covenants running w ith the land,
can only be niaint:iined by the party between
Weed t
|of the ri
riginal grant.
I., Imtli contained Li;e usual reservation
;lits iif the (trow'ii as expressed in the
The .iecl:iratioii then averred
,,., , , r ,,• , ,1 I »a" w'''ni and the cnvenantor there is iirivitv ol
meut. he deed from W., and the plaie.tltl s j . , ♦ .i. ,-, ,■ »i i. ., i, n ,. ,. <■; . ,
■ . . ' I esta>e at tile time ot tlie lireacli. hmri v. ,Sliiiiy
S (_'. V. 017.
Detendant cmiveyed with absolute edveii.iuts
to plaintill', who before action conveyed to one
1*. : Held, that the eovt'P.-ints ran with the
land, and the plaiiitili' could not sue, though
they were broken as soon as made. .Srriri r v.
.V//W.V, !•('. V. 'J.Vi.
Held, that a mortgage in fee made sulwe-
(juently to a breach of a covenant fm- ijuiet
enjoynient, and to an ivctiou for sulistantial
damages therefi>r, doe.^ not estop the niortg.igor
from suing the vendor of the party from whom
he jinrchased, on the covenant eont^iined in the
fthat when \V. convey<:i! to \]. he was not stdseil I
i »• 'irdiiig t4i his covenant, but that jiart of the j
laii'l WMs the jiroperty of the cniwii, and was j
^Tinted in 1H4(1 to one .1. : that .1. afterwards j
I iii-vi'l to I!., who brought ejectment ag.ainst i
I' tiiil reciivered : that the ]ilaintil}', in ortler :
t I'lvvtnt IV from Ixdng dispossessed, paiil to
II 1 lar^e sum of money as the price of the
hiiil, U'lild.^!! costs and charges, and these dam-
aj:is hf daimeil from the defendant in this
iMmii ,18 siirvivmg executor of \V. t^mere, as
rf'l iWi
» 1 '• >
r i ' 1! ',
i
1
tff •■
sal
COVENANTS FOR TITLE.
voiiilor'n (leoil for tlie propertv. f'nllilitrt v.
S/r,,/, !» ( '. P. ;i8(i.
(,>HM'iv, wlittlaT a jniivhaser at .-"lii'iitl's sale
ai'ipiii't'H a right to muc on covi'iiaiits niiiiiing
V ith the land. ('<imi>Ml v. Jiiir/,;/, HtQ. K 204
I'liiiiitirt' Huoil ilcfeiiilant on a covenant for
nei/in ami ri;:;iit to eonvey, and clefenilant plea-
ded only that he was seized and had gooij light
to eonvey. It apjieared tiiat the plaintitt's in-
terest in the land had huen sold by the MJieritl'to
one .\I., so that lie was not the projier person to
sue, if the action had lieen properly resisted ;
Imt he recovered a verdict, and on motion for a
new trial it .appeared on athdavit that lie wa.s in
fact suing for the licneHt of the jiersoii entitled.
The court, under these circumstances, refused to
interfere, the verdict heiiig just. /'i.
An assignee of part of the laml ioii\e^ed l«y
a deed containing a covenant for seisin in fee
may sue upon the covenant and recover damages
in pro]iortion to his interest. A'l v • r, D'/lri'i',
'20 (,). 1!. I-J.
declaration st;iteil that defendant, liy inden-
ture, conveyed lands to < '. in fee, who on the
same day re conveyed same to defendant hy way
of mortgage; and defendant afterwards con-
veyed if one A. in fee, suhject to the ei|uity of
redemption then existing, and ci>\eiiauting in
the assignment that he had done no .•ut whereby
said lueniiscs liad been eiicuinbercil : that .\.
assigned to \V., who assigned in fee to llie plain-
titr, w iiercby plaintitl' is assignee of the premises,
and entitled to sue on defemlant's loveiiant.
Breai-h. that defenil.iiit before ion\ eying tiM '.
had mort'iageil to '>ne .1., who foreclo.'ied, uid
plaintitl' was thereby ilcjirived of his .secrrity,
&c. iKlnurrer. because tiie deed to ( '. eon .eyed
only the eijuity of lediiiniitioii, which alone
passed to ('., and defendant's coven.aiit applies
only to that estate : Held, declaratioii good,
as there w as nothing to shew any intention i>f the
iiiortL'agor to limit his c(Aenant to the i-ipiit,ilile
estate. I'lea, that title in .1. , the lirst nior:g,igee,
beeanie alisolutc Itefore tlii' assignment t > jilain-
tiff and breach of the I'ovenant, and all damage
accrued befme the assignment to iil; intitf :
Held, no defence, for the I'ovf-nant '.n' title in
the orij;inal mortgage, liy which trie premises
passed to plaintitl', was a . oveiiant iiiiining
■with the laml convc\cd to plaintitl', ;ind plaintitl'
was entitled to all the incidents thereto, and
therefore to bring this action for breach of the
saiil covcMiant. Mimlitli \. MrCiiiflituii. j.*? ( '.
P. •-'(><».
.\ covenant ag.iinst ilicumbiaiices in .i deed
purportinu to convi-y tlie legal fee simjile, runs
with the hind, altlioiigii the grantor was in fact
suizeil only iif ;in ecpiity of reileniption. 77i.
Kiii/iiri <ifilil .\fiiilii;i ('i>, V. Jtiiii", l!M', I'. L*4r>.
I)eelaration 1st count, on the coxeiiaiit for
right to eonvey in a deetl of three lots of land
by defemlant to plaintill's. alleging that at the
time of making the coii\eyanee difendant had
granteil one of the lots to .S, ; "Jnd. tin the
covenant for ipiiiit possession in the same deed.
I'.reaeh, that before m;iking it ilefendant had
mortgaged one of the lots to S. in fee, and after-
wards S. proceeded against the [d.",ilititlK in
('haneery and foreclosed his mortgage, by which
the plaintiiVs lost this lot ; .'Inl. Tliat defendant,
being possessed of a lot of land, mortgaged it
to one S. for .€2.'H) in fee, and afterwards con-
veyed his eipiity of redemption in tlii.s iind „(!, ,
lots to the plaintiffs in feu for !>!'J2.4(H) i ,,■
then advanced by plaintiH's to defeii,i,i|,t' ml'".
this convovanco covenanted to nav ulVtl, . ' ''
gage to N, and indemnify jilaintitls a^iiiist it.
but that he neglected to do .^o, ;,|„| s^.l.t,,;, ,'
eeree ot toroclosure against tin. |ilaiiitiii
j whereby they lost their seciiritv .nid tin- l-,, ■'
land were put to costs, Ac. : .'"ith'pl.a. to ti„.',;l!^:
' three counts : that before the al!ei.,',i bii.a,|i, '
the plaintitl's by deed conveyed ai? tli(.ii',.,,t"^
in the land in those counts mention,,! tiMintii'
and they liaveiiotaiid iiad not at the .. million,.
meiit of tills suit got back or be, (iim; .stizi.,l"'.
their former or any estate in said land. MliereU
the c;iuses of action in those cllll||t.^ mi 1,;
ami dill not accrue to the plaiiititls. ( i,, ,|j.J,''
rer. Hehl, plea good, as to tiic tir.,t. liiit 1«,1 '!
to the second and third counts; i„i tii,. pjaintij!'
as those counts shewed, had unly ,.,n f,,iiitv,"i
redemption, and the riglit to siu. ..i, tin. ,,',„.
nants wouhl not i>as., with it to then iu<si,-i„-.
Hiirrpin .^ V. /)< /i/m/n:-! n , 'MQ, \\, jdx ' '"
.See Utirn/ v. Amh i:miii
I ■•«<•. 1'. 4:ii,
•IMl
\ Airio.>, ( N.
I. /'/r,f,/h,;i.
hi an action on covenant for .inict cniMyiin.nt,
it is snthciciit to state that one li. wa> scizol k'
fore eoiiv.,-yaiice to tiic plaintitf. ami that tin-
plaintif was obliged tu p.iy him ., naiiml sum (..
obtiiiii p.wsessiiiii, w itlioiit statiin; ■ \ i. ti.iii |,v \\,
lih ,/.;
'I'm
.»«.-..
f<t.it(.
V. Jfl/l ft.
A jilea that the plaintitl' eii|(i\ti| t!;
without eviction, was iieid no an^H,.,-. \/
iriDu/ v. Juliii.-i, Tay. 2,'{2.
In an action on a covenant that |i!aiiitiif \\;i«!
Ijiwful owner, .-uid ha<l a g 1 title, .-i pica t' a! I
defendant was the right owner, Xt., aii.j that 1
the plaintirt' has had [lossession .sinn. tlnM.u.
veyance, ami neier has been evi,te,| : Hi|. ,
bail. \'iiiii>irhiir;i/i v. I'andlsti.
4.-.4
Wlu
ill an action on a covfiiant foi ,|mtt
enjoyment without tiic hiiidr.iiicc. &■■., iif,itf,ii,
dant, (the grantor) or any oiu- daiiniin; "H'lfi
■her. the plaintitl declared tliat A. aiiii(itlur<.
who had title from the ch'tiiidaiit at tin- i-uai
tioii of till' coven;,. 1. to the pKtiiitilf to tin- ki.l*
coli\eyed. expelled the phiintill' under siulititli-;
and that tin- defendant pie;idcd that A, ami tli"
others had not siich title to tlie lan.l.s ami w.K»ii
■ at tiie time of the coiivey;uicc to tlir plaiiitill:
Held, on special demurrer, that tlir.-il|i'j;;itinii,i!
title in .\. and the others at tiic tunc i.t tlu'oiii-
I veyance was imniateri;d ; ;ind tlnit tlir plea «w
bad in denying the title of \. ^n,! tlie citlu'i> f"
the lands (IihI woods, conjuiii'tivi'ly, ami imtili-
junctively. ttiriiiiiii \. liiiicl.. i'l U. S. •2'\,
When- in covenant for ipiiet eiijiiyiiK'nt ii»f
: from incumbrances, the breiicli .■i.-i.«i;.'iu'il vx:
that tl") WHS due upon the laii'l tur arraiM!
taxes, without stiting of what iiatiin- ; Hrll
b;vil, on special b'liinrrer. WiImhi v. Hitfb.'l
: g. H. 4.S7.
In an action upon the covenant for furtiier
, assurance the covenantee must avir in liisiWi-
! ration that the conveyain.i^ whicli liiMt'i|iiiii-il»,vi
I devised by himscdf or his cniiiisc!, aiiii teiiilfwl
, to the party to be executed. M;icaiilav, .l,,ilii''i'
I tante. If, :it v. Widdcrfehl. :■> (,>. B. I'SO.
Pi
803
COVENANTS FOR TITLE.
894
L'IMIlt I'ol llUift
U laiiuiiii; iniilt-r
rilf t.i tlR-ki.l>
IflljliVllH'Ilt iiw
tnr ;iiiT,ir»"i
Tlic (leviaco of a grnnU-e suing upon the
,„,,f„r's covenant, that "tlie hui.l was free-
Cm i,u-un.hnuRe«,"inui't aver that the inn.ni-
L,i,... was unsatistled wlieii the .leviaee took
The plaiiititf »ue<l on the usual eovenant '.>r
,i,t enjoyniont, alle«in« as a breach a 1'<«1'^^Y
ver a po'tion .it the lan.l eonveye.l : Hel.l,
Iviil • for the exeeption in the eovenant tor tith.-
„f imvhniitatioM, proviso, or eomlition contained
11 tlie .>nj,'in:il jjrant from tlie crown, cxtciKls
'.iiinllv toltie covenant for .|iiietcn,ioynient. an.l
i^t «'u/n('t avi'i red tliat no hiyhwav was reserved
iX-onv'inaU'rant. Mo.r, v. //o-//,.,,. 10 Q.
B. 140. .
V iilwi to an action on the covenants tor title
imlriL'lit to convey ; Hehl, had, as l.eing only
•in arK""i''"t'>*'^'' '■**"'i'''t'"» "f ^^^" ilcfen.lant s
title- «'"• I'l'^i""^" defendant should have aver
1 ,"lir,.ctly that he himself was sci/.e.l, and
ii..«l not liave «'^'t ""* :i "lerivative title. S/iinio-
/„„iv..S/.'. '■'•". 10 Q. ».<iOO.
Action on covenants for .seisin and right to
ciiuvov, II mortgage to ( '. lieiiig specially excop-
tol 'llicacli, that defendants were not seised,
witiithc exception of said mortgage, and had
not .'.H)il right to convey; hut that one (I. H.
iva.s"s':iiic»l of a [lortion of said lands, and one
I li and T. 15. of another. Pleas, •_>. That
said inmtgagu was a mortgage in fee, and that
liytlio incleiitiirc declared on. defendants cove-
iiimtcil for seiMii, except .said mortgage, which
is still mipaid ; M. .'^ame defence, applied to the
aiviiiint for right to convey; 4. Tliat <lefen
ilaiiti were soisod. in accordance w itli their cove-
nants : ."). That they Iwul good right to convey as
loveiuuitid for; ("i. Tiiat lieforc the execution
iif the iiiilcMtiiif declared on, defeliilants agreed
with the jilaintiir for the sah of lands to him at
a sluciiieil snni. ol' which p.irt w.is to he ]iaid
(Kiwii, and the residue secureil liy mortgage, and
thattluiilaintill'thcii mortgaged the same lands
iiitee til the del'cnilaiit>. to secure sncli residue,
nhiih is -till niiiiaid : 7. That said li H. was
ii.it seised as alleged : !<. Ticit said .1. R. and T.
11, were not, n<ir was cither ol them seised:
tlii'l, »n (leiuiiner -.'nd. ."hil, 4th. ."»tli. 7th, and
^-tli pleas had ; (itii ))lca good. J'".-' \. S/oirliiin
■ ■'., 14 (.1. r>. "'.s.
|)eelaiatioii nil a em cliaiit contained in ;i iiiurt-
^;if;L't(iiil;iiiililts. to which the defendant ploailed
i.|iiitalily that the plaintitls gave their iMiiid,
Imililij; themselves to execute a good ami Mitti-
Mriit 1)1111(1 to defendant of the premises com
[.lisiil ill the said mortgage, ami alleging that
liliiiiivill's had Hot done so, &c., and aveiring that
the iilaiiitirt's had not at the time of gi\ ing theii
IhhiiI, nor at any time since, ii good title to the
saiil laiiil, Si- : Held, plea had, .is it did not
.•hew wliat defect there was in the plaintitls'
title, iicir that the plaintiH's' lioiid would not
fiillv iiiileiiiiiify defendant against hi.ss, inr that
there Wiis any Iraiid or niisre]ire.«entation ; and
as this ediirt eoiiM not do ample justice iM'twecn
the parties, they would not interfere, /fini/i/iin
I'li/. V. 7,M/(fr«Hr(, 14 t'. 1'. 133.
The lireach assigned of a covenant to convey
free fnmi ciieninliraiice was that the land was at
theilate of the covenant snhjeet to a claim for a
ilowerin favour of one K.. the wife of one .1.. a
foniier (iwuer of said land : Held, hud. for it
eould iKit be .•wsuuied that ,1. was dead at the
I date of the eovenant. M'/V.m.;, v. Jlii/iim; "Jli Q.
' B. M.
I Part of the land included in a conveyance wa.s
I inserted hy mistake, the vendor not lieing or
I pretending to he the owner of it. To an action
! on the covenants foi- title defendant pleuled
I these facts as an c(|iiitahle defence : Held, that
the plea w:is good as pleaded. li'hiio v. Miiir
«■« «/., .") I', l;. •.'7.3. «'. I,. Chaml.. ' Daltoii, ('.
r. ,{ /'.
"2. h'riifi iirr,
(a) Otl>l■^ iiriiliiiit'li.
In covenant for title, the hreachcs a.ssigiied
were, Mant of seizin in fee. and an e\ ii tion Tiy a
stranger, to w hicli the defendant pleadeil a sei/in
in fee in himself : Held, that on the plaintitf
proving an eviction l>y a stranger, without shew-
ing his title it was inciimhent on defendant to
give eviden e cif a seizin in fee in himself. I'm, if
V, M'i'-h,;rJ. I>ra. 4>S(J.
\Vhec;,'to a declaration in covenant for title
generally, and a hreach that defendant had no
title, the defendant pleaded a seizin in fee : -
Held, that the issue l.iy upon him. and that he
must shew such seizin hy pronf of actual po.ses-
sioii .at some time as prima facie evidence of his
estate in fee, although the plaintitl' oHered no
evideiiie. liiit the rule is othi'iw i.se when the
covenant i.-s only against the party's own acts.
MiKiiiiiiih v. Jliirriiii's, ,3(). .S. 114.
In an action on a covenant for title, where
defendant pleads that he was seized in the terms
of the ciiveiiaiit. the onus o; [iroof lies upon him,
and the plaintill' need not tirst prove a hreach
to entitle iiimsclf to a verdict. I.i iiiimivii r \.
H: I/on I, 3 (^>. B. 2S.">.
Where the plaintitl' sues iipnn a covenant for
right to convey land, alleging as ,i hreach that
defendant had no such right, ;ind defendant
pleads that he had. the proof ot title lie-* upon
defendant. .l//'//.s v. 11';.//' ,•-"-' <>>. I'.. HIS; .1/. ■
Colin III V. DiirU, 8 Q. B. 150.
Upon an action of covenant for title hy an
.assignee of the covenantee, it is not e.-^sential
that lit shun Id shew that a Icu.il interest pa.ssed
to liim uiiiler the deed ; his cause of action is.
that lie has not the intercut he supposed he w.is
aciiniring. and which he would have had if thi'
title id' t'lc covenantor, who executed the first
deed, luui lieeii goo.l. d'l.iihli it ill. v. A'" <, (>
i). I!. ,3!l(i.
\V
here ,i party liiiids himself to niaki' a good
and ettectual conveyance ot land, he must pri>v«
that he has the legal title, and that the land did
actnallv J'ass hv his deeil. Tulnnil v. liruci , }i
(l B. 14.
3. I)a)niiiii'-^.
(a) fVi,^,'.s /iirinnil.
< (ivenant for title : hreach, that defendant had
riijht to convoy, charging evic-
tio title and no
tion, .and claiming damages for costs incurred hy
the plaintitl' in his defence against a iiersoii
having par. imount title : -Helil, that the plaintitl'
' was entitled to recover the costs paid in defeiid-
] ing hinmelf in the suit of ejectment under which
he had been dispossessed, lirnituiii v. Siri'in, 8
, y. B. lUl.
P
;ii
¥
r
'?;i.-'.
805
COVENANTS FOR TITLE.
m
A puri'liiuicr, wlio has lH;en cjectoil, Miing uim)ii
luH covt'iiHiit tor II giKxl title, may ruoovur ua
tlainauuM tht! t.'i)ntt) of ilufuiuling an ejuctineiit
bniiiglit agaiiiMt him, evvii though hv han not
actually |iaiil them, in aihlition to tliii purehatie
money and intercut. Shihli.t v. Murliniliib', 7
c. r. .v_».
A. puivhaHi'H from It. a lot of land (to whiuh
B. had no title) and eonvey« it to I'., taking
liaok a mortgaj,'e for tliv halanee of the purehawe
nion(!y. ('. aneertainH that he liaH no title, and
olaims* a deduction in the mortgage money on
that aeoount. 'I'liey arbitrate and a deduction
i» maile liy the arliitratorx. The costs of the
arl>itratioM, itc, amounting to L'ol 4s. !M., .A.
had to pay. lie then sues B. for the purehaoe
money of the lot, and thesu costs : - Meld, that
nucli costs Were the cnnsei|Ueni;e of his own ai't,
inasnuK'h as if he had not sold tlie property
they would not have liven occasioned, and were
not recovcrahle. Fur/n/lli <■( nl. v. M''IhI<ikIi, !(
C. I'. 4!»l'.
In an action on a covenant for tjuiet enjoyment,
the lireach alleged was the recovery of a judg-
ment for ilower, ami eviction of defendant from
one-third of the land. Kefenihnit alhaved judg-
ment to go hy default : Held, that the plaintiil'
was entitled, in iissessing damages, to recover
the costs of the dower suit, and to the vvlude
value of the dower estate, not merely damages
to the liringing of this action. Shcir/ v. Miitlii'-
«((//, •-'.•{Q. B. \'a:<.
lljion a fort'closure suit upon a mortgage for
.tlUrK), and on which only t'i.'iO luul l«;en in fact
advanced, the e(Mirt disallowed the additional
tlKJOand costs of the suit. The plaintiti', heing
the assignee of the mortgage, then claimed to
recover tiiese costs from defendant, his assignor,
upon his coven.uit for the validity of the secu-
rity, &c. : Held, not recoverahle. SlnrijiM v.
Hl'tnii; II C. I'. KCi.
A. having mortgaged land to B., sohl it to (',,
giving covenants against his own acts. B. fore-
closed, making •'. a party to the suit, who em
ployed a solicitor an<l incurred CM) costs, which
he claime<l in an action against .\. for lireach of
his covenant: Held, that the costs were incurred
liy the voluntiry act of (', and were not a
necessary conse(|Ueni'e arising from a lireach of
the covenant, ami were not recover.iiilc against A.
I'arbr \. Mr/>„„<i/</, lit'. V. 47S.
Tlie plaiiititl's father liy indenture of bargain
and sale conveyeil to him certain land, (the
dower of the grantor's wife not lieing liarreii),
covenanting for ijuiet enjoyment in I'onsider-
ation, anioni; other tilings, of .'is. rpon his
death Ills widow recovered jud^- .•cut in dower
against plaintiti, and the plaintiti' sued his
executors for lire.ich of the covenant for <|Uiet
enjoyment. Tpon a special ciuse : Held, that
the measure of damages on. a covenant for (jiiiet
enjoyment was not to Ik- governed liy the con-
sider.ition money in the conveyance ; and that
the plaintiti' was entitled to the vahie of the croiis
which he had lost liy the eviction. Kiehanls,
.1., diss. The court being of <i]iinion that the
plaintiti' should have satistied the demand for
dower upon receiving notice, the costs of her
action of dower were disallowed him. llaihiiiix
V. //<«/;/;« s, \•^ {'.. \\ 14(i.
In an action brought against the executors of
a grantor ou a full covenant deed, to recover
damages sustained by the plaintilf, by r(ai.(iii,i
the payment of a sum of money in uii :u timi I
ilower, defendant pleaded that thedccil w-v., ,,'!
the deed of the grantor in his lifetime, aiiil'|,lt,'
administravit. To the first plea tlic iilimiVff
joined issue, and to the second repliiii 'v.wxL
It ap|ieared on the trial that an action hml |,J„
brouL'ht against one (!. S. B. for the ricnvirvi,'
this dower, and a release obtained for .>!|'j().'| .
not until altera defence and soiiu' I'-Jo,,) ',.,,||._'
were incurred, and that the only aiiiniiiit iKii,! |"j
plaintiti' was .?."iO : Hehl, that the jmy shcuii
liave becii directed that the defence ot tiiii|,,u ,
suit was not justitiable, the deed c<iiitiiiiiiiii; tt,
release of dower executed in May, bs.'fr ,1
IsMug signed by the wife, althougli ccititi.',! t
by tw<i magistrates, and the costs tin iint' »|]|,|,|,i
have been (lisallowed ; and that tlii' plaintji) «j,
only entitled to recover the amount paid fur tin
release of dower and interest. Jlnnln- \ /„/,,
son, 14 V. V. 123.
The plaintiff having been ejected by tin- 1,, j;-,
of II. L, sued under the covenant foV i|iiitt in-
joyment in a deed from H. I,., and iindcr uiuvf
mint in a mortgage subsei|uently niailc l,y tlie
jdaintiirto H. L. by whicli the pjanititf \v,,sti,
be undisturbed until ilcfault in the iiKirt-ivc
and .a verdict was rendered for the pl,iiiititi''\vft!i
Is. damages on the second count; llilil, tluit
plaintiti' was not entitled to increase tlicse ■Lim-
ages by the costs of the ejectment unit, fnr it
appearetl that the mortgage was ihpI sit iin liy
the plaintitr in that suit, and if it lia.l luin h
might have been successful in it. A'../,, y.
Lvifiil, .'14 t^. r>. 7.").
(b) Olh,,- Cn^i.i.
Semlile, that where heavy damages aiv ^ivu
in an action of covenant for >,'o(iil title, ainl it
appear that the plaintiti' knew tlie .st- tc ui tbu
defciiilant's title, the court will giant a inw
trial, and will intend that in that ciise cxoissivt
damages have liccn given contiarv to tvidcme.
A'c" ,•;/ V. Milli /•, Tay. ."f.'W.
Where A. purchased a lease fi H,, ainl R
covenanted to re-purchase it in tliiic \iai> ii.r
more tlian he p.lid, and after the tliric yens \.
tendered an .issignmciit of the lease, whidi R.
rtifused : Held, tliat in anaction on tlnioviii.iiit
.A. w.is entitled to re<'over as tile .11111111111 ni
damages the jirii'e agreed ii]ioii liy li. fur tiir
>•• iiurchase. (lilisnii v. Culiill, K. '('. i\\v\.
\ jiarty is liable only for such daiiiii;;is a? art
ine natural con.siM|uences of his act »\ "iiiissimi.
Where, therefore, the vendee of land all»wv,lit
to lie sold for t.i.xes accrui'il diiriiig liis wmiurs
time, and neglected to redeem it within tlii' year:
- Held, on a covenant fora rij^lit to cmnev. ;uid
freeiloni from encumbrances, tliat liecniiLI iiot.v
of right recover the value of the land sn allnwisl
t I be sold. McColliiiii v. Ihii-iA, S i}. W. I.Vi.
In an action for breacli of covenant nf i;i««l
title the measure of damages is tlic inmii.ise
money jiaid, with interest. No allow^uur is lo
be made for the improvements or incrtasid vjilnv.
MrKiiimm v. liiirrnir.^, ."1 (►. .S. .'I'.K) ; Clmi w
/i„l,. riMoi. , 8Q. B. 370.
The right t<i such damages is not lesaeiitii I'V
the fact that the plaintiffs have never ln'cii &■
tnrljeil in their pussessioii, if an iiiLiiiiiliraiia'
m
i^fil Was iiiii
'-. aii.l lilt,,,
till' lilaiiiM
I'lif'l laiul..
"11 liail llfti;
' I't'CliViTV I'
'i'*l-t);'l..j;
C'.'d ot .::■>■,
mint paiil 1:
jiii'V slii.iiy
111 tilCll.iU,!
iiitainiini tli
y, isr.; n,,;
1 ffrtiti'_'il t.
Iii'i'fiif x\m\\'\
■ |>laiiitill'«ai
t (laiil fur tilt
(nil,- V. ./.,;,.
I li.V thu Imr.
; fur (|iiii't ih-
mihUt aidVf
iiiailf liytlie
aintitl' Was ti.
tlic iiiurtj;a|.'i.,
l>laintitl' with
•. Ilclil, tllllt
isi' tlii'sc 'lam-
-•lit miit. fur it
Hut Sl't lip lij
it liail lifcn lit
it, /vr/,. V.
l^'L'S alV ,i;IV;-|l
il title, ali'i It
If st- :-■ ul tlk'
}.'ralit a iii-w
ra^i' rxoi-spivt
[v tu I'viilfiioe.
mi n.. aiul H.
[lir.T U'ai'' Inr
liii r years A.
iisi', wliiili R.
II tlu'i'uviiiaiit
lie aliiuiiiit "t
ly I!, fur till'
t. -J \'iet.
laiiiap's ;l^ m'
It iir uiiiissMi.
IikI alluwv.lit
his veliiliir'i
kliiii tile year;
III euiney, ;ui(l
.■oiiU iii't a
[ml su A\i<w\
U). li. I.Vi.
I'liaiit of gi««l
Itlie imiiliase
BuwaiKi' is to
er.'ased valnf.
I'.K) ; Vliii-l: V.
lesaeiiitl ^
[ver liei'ii lif-
inciinilirnw
897
CREDITORS' SUIT.
898
Oilmin V. Iloidldii, lliickilt v.
f.»fpn.lniit iijrreua to sill land to P. for tlSO,
1 n tiiiiliuiitiH'; nml at bis reouuMt (k-feii-
„l,o«.ia t. 1 '" " ..iiintitr. the
1 ♦ ,.»teiitc<l H 'Itic' in fee to i.liiintitr, the
!ulltr.itiui.ex).re»He.i Leing €4'25. with cove-
Ttl in fee. Vhiintitr iK-'ing ,hBi«.HHeHHe.l ;-
u il ..ntitU.l to reeover tlie full e.insi.lenition
S'aS '/-A V. /.,../;.. 4 cM-.nr,.
I„ an iictioM on the covenftiits for neizin and
,iit -'"vey the ,,hu..t.ll m not entitled to
sulLuntial .hiMKiges without .hewiin;un eviction
u,„u«ter iruiii the preniiaes in (|ue8tioii, or houic
ther facts wliicli wouM entitle hiin to more
l,au nominal .li.inageH •^•'"Y"- y- -y'"' 'f- '; < •
;J'v:/V,.hX-.HC. p. •.•05.
In in Ktiuii fvir lireaeii of an absolute covtMiant
f„ tiilf to lan.l. Kel.l, that the iilaintiH' (the
veiiiliTl «a.s entitled onl.V to nominal daina^'es
where .lefeihlaiit (the vendor) had, alter action
hrnuKlit. acnnirod the ...'t.t?n;ling title ; lor ,v
a mrteet title to the land l.iw^ied to the i.laintift
'thr.iii:h tlic .lefcnilant'a former conveyance to
Hi,„imme.liatcly ui.on the outst .in'.Mife' title l.e-
ooiiiing vfs ea in .lefendant. limiH'.- v. Ilnmil-
(„«. i.H'. r. !-'•'••
\ invenant against ciuuiulirances "n a deed
l,im»irting to convey the legal fee siin,>lc, runs I
with the laii'l, although tlie grantor "is in fact
sfisoluiily ">' "" i''l'>'ty "'" redemption, and can
Ik- -iieil iilHin hy the asf.signce of the covenantee.
wliM will lie uititled to sulwtantial damages,
rfhieseiited liv the amount for which the niort-
aiie stalls as security, tliongh it may not he yet
,l\lr. 7'/m /i;»/"(V (told Miii'ili'J '■". V. Jiiios, 111
fraud. Senible, that only iioininal damages
cuuld he recovered, the covenant heing in etFeet
the Hanie au a covenant for oeiHiii, and a eontiu-
uingonu. linni'u v. O' J)ii'i/ir, 3,"> Q. H. 3.'i4.
See Mariliiii'iitll v. Miifihiiiill, .'t ( '. 1'. ,■},")'>, ]).
800 ; l/nilijiiis V. /loi/nii,.^, l.S ( '. V. I4(i, ji. 8!).'>.
("HKKrnillS' SLIT.
.N(<' Admim.stration Srrr.
•.'+.V
suhl
\V. suhl and conveyed laiiils hy metes and
JKiuiiils tu H., who conveyed to I). l>y a deed
oiiitiiiiiiig al •solute covenants for title. A jnu--
timi uf tlie land was sul>sei|Uciitly claimed tiy
(.lie K., wliu hiciiiglit ejc''tnieiit, ami l>. sued H.
iiii.ler the euveiiaiit. W. then gave 11. a mort-
i5ij.e tu imleiiinify liini against all damages, costs.
HUiKliaigc^ in respect of the action of vovi^nant.
H. suhsei|iielitly coin|>roniiscd with It. : Held,
that \V. s estate was only lialile for the value of
tlie 1 ieee uf land su claimed, ami not the amount
|iiiiil liv his veihlce on tlic coiiiiiiomisc. /fiirl v.
/,'..i.vi,"7 Cliy. HT.
ill an aetidii on a covenant that the dcfeinhint
luul il -le no act to eiicumher I'ontained in a
omveyaiiw uf land hy the defendant to the
|ilaiiititl', fur a consideration of tl.">0: Held,
that the iilaintitl' was entitled to recover the
wlii.le aiiiuinit due uiion an outstanding inort-
/agf. altliuugh it exceeded the juirchase money
aiiil iiitea'st. and the mortgage included other
l.iiuls siitfieieiit in value to satisfy it. ' 'mnn U v.
lluid,.,,,, ^,5 il l;. 444.
Where the inidence shewed that when the
graiitur euiiveyed, there was a mortgage on the
iiiiiil hy a iiriur owner, unpaid ; luit tlie gnuitee,
■ the jilaiiitiH', had taken possession and left after
* month, nut having lieeii evicted, and no one
I nW had liet'ii in posgession since ; ami it did not
sVltar that he been unable to sell, nor that dc-
ftniliuit, the covenantor, had been guilty of any
A large body of creditors may be repn .cnted
by one or more of the number, but the bill must
disclose a sutlicient reason for this course.
Where a bill stated that the creditors of the said
L. entitled to the benefit of tin- said indenture are
too numerous to make it practicable to prosecute
this suit if they were all made parties : -Held,
that such statement was too genern'. yniere,
whether necessary to furnish proof of such state-
ment, and whether in a creditor's suit any decree
can be made without previous proof of his debt.
.!/;<•/,;, V. Cliiir/t.<<l III., I Chy. I'i.'i.
In a creditor's bill agaiii.st the devisees of a
debtor, it is not indispensable that the heir-at-
law should be a party. Fiiiii'/v. /'riislmaii, I
fJhy. i;«.
The personal representitive may Hie a bill dud
rf ililur .■iiiiiiihi ii|Miii the tcstitor's estate against
a devisee of lands under the will after the perso-
nal estate is exhausted ami obtain a dci-rec as an
ordinary creditor. Tijj'iiini \. Tlfmii/, iH'hy. 158.
The other creilitors need not he made parties
to sucli a bill, but the heirs at law must. Hi.
Where a bill was liled by one of several credi-
tors of a debtor, who had assigned his estate for
1 the beiietit of his creditors against the debtor
j ainl the trustees, seeking an account of the estate
i and payment, without making any other credi-
tin- a i>arty, the court overruled an objection for
want of parties, on the ground of the absence of
any such creditor. l['iiiiil v. /init, !• Chy. 78.
I'pon a creditor's bill a receiver of the rents
and protits of the tcstitor's real estate will not
be graiitecl where the plaiiitili' does not allege in
his bill and clearly pro\c the insiillicieiicy of the
licrsoiial est:itc to pay the debts, and does not
pr.iy by his bill for the applic.itiiui of the realty
or the rents and [irolifs thereof, to that object.
Siiiiili i< V. ('liiiM'ii, I Chy. 1S7.
Where in a creditor's suit to iKliiiinister the
estate of a deceased debtor to whose estate
administration ail litem had been taken, the bill
alleged that there were no personal iissets, and
the parties interested in the real estate had suf-
fered the bill to be taken against them ))ro coii-
fesso, and did not ap|iear at the hearing, the
court made the usual I'.ecree, without re(|uirilig
a gciieral administration to be lirst obtained.
Ihiiw Ihij, I'Chy. 1451.
An execution creditor tiled a bill .igainst his
debtor, the wife of the debtor, and certain other
persons ; and it apiieared that the debtor on his
marriage settled certain lands (the subject of the
suit) in trust to the use of the wife for life, with
jiower of sale to the trustee, to be exercised
with the huslMind's consent. The legal estate
M'
flP
^1
899
CIUMINAL INFORMATION.
900
wiw ill cint' I!,, wild huiI a |iriiiiiii'y cliiir^u on thtt
premiHod. I'lidcr thiMo ('iri'iiniHtaiicrH it wuh
(lecroi'd tliut tlii' i)liiiiititr wm riititloil tcii-cilfuiii
It. : tliat till! vilV'i* cstnti' \vixn t^xciiipt fioni
L'Vi'ry (.'liiir^M! otiicr tliiiii tiiiit of It. : that of tliiH
L'hurgo mIh- iiiiiat i^itlitr kui'p down tliu intcri'Ht
III' ]Miy li |iro|ioi'tioiiuti' Hliiiri,' of tliu iirinripnl :
that hIu' v\aH (.-ntitlt'd to a proviHion out of litM'
lifo CHtatc : that Hiiiiji'i't to hur ilitiavnt, tliu ni'o
|ifrty, on I!, living paid, hIioiiM Ih> hoIiI ; and ai
I'liiinii'
iii'ilur
/'tmhirloii v. 0\\'iil,''2 I'Uy.
ciiiiniry wan dircctud iv» to other JiidginuntH, in
to a |iroiH.T application of
thf
•_'(!;«.
proCL'cdM
A Hale of real t'Htatc had takt'ii place in piir-
ftlianco of the ileeree made in a ereditor'n suit.
It appeared that the le^al estate reinaiiii'd in the
dehtor's veiidoin, to whom there was sttill owing
a part of the purchase iiKiney. The eoiii-t or-
dered the vendorx, iijioii )i;iynientof this amount,
to convoy to the punhaser under the deiree.
Jfiiil V. f/in/; r. •_' (hv. (iil.'i.
Where the plaintiH' unrcasonahly delays in
carrying on a creditor's suit, the court will give
the carriage of the decree to another crcilitor
upon liiH indemnifying the plaintitl' against future
costM. I'liltii-siin wSfdIt, 4('liy. 145.
The i>rovisioii» of the statute IH & 14 X'ict. c.
<i3, apply only to judgnicnt creditors wIklsc
jndginentH have liceii entered up since the 1st
of ■fanuary, IH'il ; where, therefore, a creditor
wliohe jndgineiit was entered up in the year
I8.'<li, and registeritil in IIS.*i4, tiled a hill in IS'ili,
to set aside a deed e\ccuteil l>y their dtditor to
his son in the year \SX>, as having heen done to
defraud creditors, or as heiiig voluntary and
therefore void as against purchasers for value,
the court refused this relief, lint gave the plain-
titl' liherty to amend liy making the hill a hill. on
liehalf of all the creditors, and praying lor an
administration of the dehtor's estate. iliUiMjiii
V. Viiiih'niiniiii/I, !M 'hy. XVX
In a creditors' suit, the plaintiH having tlie car-
riage of the decree must see that the masters
report states the priorities of the creditors.
Creditors who have proved dchts in the master's
office, hut are not parties to the cause, should
not he serviid with notice of the hearing on
further directions, /.unii v. > I' Xi ill, \'M'\\y. \''X
111 ■lanuary, ISIK), a delitor assigneil to certain
cruditiu's his interest in land under a contract of
purchase : the a.ssigniueut uas luailc alnsolnte in
form so as to deceive and defraud other cP-'ili
toin ; hut the purpose as hetween the parties wiis
merely to secure the deht due to the assignees.
Shortly afterwards the assignees, witli the
dehtor's consent, had an arhitratioii with the
vendors in respect of tlie contract, iditaiiied I'li
award of i*l,<><H) in lieu of the land, and received
the money. In 1871 a hill was tiled hy another
creilitor against the dehtor's administrator and
the assignees, for jiaymeiit out of the .1il,(iO() ; -
Hehl, that the plaintitl' was entitled to such pay-
ment : that in view of the fraud iind trust, the
lapse of time was no defence, and that a hill
against the assignees hy the creditor, instead of
hy the administrator, was proper. llillU.i v.
How, 19 (,'liy. .TJ.
In Civae of a debtor dying leaving iiiHutticient
usaetH to pay all his dehts, execution creditors
AvhoHC writB are in the sheriff's hands ihi not
lose their priority ; nor doe» a creditor who has
a Hei|neHtratioii in tin; IuukIh of the sci{ii(.,ttrati«
lose the advantage of it. < 'reditor.i hIk, |lj
tiled hills to enforce their claims liaviiiL,-, li\ „ri|t.
made under an iidininistration clciiccr Iuimi r'
strained from proceeding with their umi, „„{'
and directed to lirove under the ailiiMinttiuti,,
decree; it was held that they were intitlcl 11
six years' arrears of interest computed Imi k t|,,a
the cominencemeiitof their own siiitH M,,,, ■
Miiins, liK'hy. 185. ■ •
Incumhraiieere, a uoinpany, duly iintiii,.,! w
creditor's suit to come in and prove llicircianL
in the master's otlice iinilcr the dcircc, iiii;||.('tf,!
to do so, relying upon a supposed iciiu'dy athu
They were accordingly foreclosed l,y (li'r i||.,„.j
iHMiii further directions, and suIp.mi i|iiiiitlv ai,
assignee of their claim, the legal rciiinly havmr
proved illusory, ajiiilied to he alloHcltc, |,r„v>
the claim notwithstanding tlir fen ,1,,mi|(. ainl
the lapse of luiu'c than two yens. Tlic aiiiilia
tioii was granted, as it appcar.'il tliat, im u[\m
rights had intervened, that no „i\ut i,,,,,,,,
hrancers wouhl he prejudiced, and that tlii' niilv
oiiiiosition to the motion was on thi- iiartnf tlii-
delitor. The apjilication, under tlic cirtiim
stances, w;is hehl to he properly niadr in . ham
liers; hut that if the claim hail licen adiuilicatni
up on the merits, tlu; motion slimilil h^',
hecn made in court. I'liiinnin \. W'i.lf, /,/„„,/
''".. <•• I'. 1!. !»l. Chy. Clmnd.. ll„|im.Htd.
/tr/'t i'ri\
TKIMINAI. (;<)NVi;i;sATln.\.
I. Action kok .Sm }|i>ii\Nh ami Wih:
II. l'"i>l;KKiriKK OK MoWKII .s'.. hown;
CIMMINAL 1NK(»1!MAT|()\.
1. .All \IN>r .ll'IMiK.S ANh M AOISIIIAI'Ks, IHX)
II. Ml.HCKI.I.ANKol s ('A>r..s, !I0|.
111. \<\>R INTUISIOS S,, ImhoIoN.
I\'. KoK LiHKI. .S'm I)i;i'.uiation.
\'. 15V .\lTOIiNKN -(iKNKHVI. Si , .\irii|;sn
AMI Sol.lll roli-liF.NKKAl..
I, AiJ.MNsr .IiiMiKN .\Mi .MA(;i.fTi!vn>.
To au[iport a motion for leave to lile a irini-
inal inhirmation ajjainst a justice of the |h;ii.,
the affidavits shomd not he intituled m in a ^lilt
pending, liimlnril \. Srlni/iilil, 4(>. S. 11.
Notice must he given of coiiipluiiiants iiittii-
tion to apply. //'.
Tlu^ motion should he madi' witlnmt nninw
sary del.iy, and sutHciently early in term tnadmit
of notice of it heiiig given. /'■.
.■\l>plication for leave to tile an iiildiiimtinii
against a judge of a llecorder's Couit, u|iiiii tlit
grounds that he had falsified tlie ncdiils of tlic
court and maliciously condeiiuied theapiiliaiitas
guilty of a felony upon the verdict nl' his [Jters,
when, as alleged, no verilict wliatiner was inuiul
hy the jury. The facts were that the juryoauif
into court and the foreman proiioiuiceil a venlict
of guilty. The counsel of the aeciiseil then
.iM
0(.Hl
»<'||"»'«tr;it.,«
I'l-M Ullii lij,,
I'rc, lii'di f,
•il' liMli Hint,
liiiiiiistniti.t
I'f iiititlcil ti.
•■'I li.ii'k frill
Ik. .1/. )(,,■■
i' ii'itilicil 11' ,
kf tlitirdaiiL
I'll', 111-1,'ln'W
I'liiidyatlavi
liy tlic iliTi..
)Sll|lll-|ltlv ,11.
liiinly li.iMin
n\fi| to iiriivt
rcrliisiii-,, i||,i|
'I'll!' aiipliia-
tlial. III! .ithi-i
iitllrr IlKliiii
tliat till' iiiiK
111' |'i\rt III' till
r till' tii'i'iiiii
iiiuli' ill ihaiii
Ml ail|iiili('ati'il
I sliiiiild liH't
ir..//'r /.,/,„„/
Iliilnii'sti'il.
rrinN.
I AMI WlKK.
" llnWKI;,
KIN.
-n;\i'K>. m
.Vnnl'.SM
'JOI
CUIMFNAL LAW.
1)03
I iii'stiiiiii'it (not tlii'iingli tli(> cDiirt) hoiiu' of the .
i'liry iw til tlit^ unmiiilH of tlirir vfiilict, w liun |
1)110 utiitt'il timt ln5 iliil nut roiiciir in it. Tlu' ,
•itteiitii'ii iif tliii I'liiii't wiw not ili'iiwn to tlii» [
iliMont, iit'i' ili'l 't Hiiiiuar they wfVi- jiwaii^ nf it.
A venliit nf yni'ty "'*'* rci'iinlfii liy tlir pro-
Hiilinu Ji'i'K'' • '""' ^ ''^'" f"i''imlly ll^'lll ti> tliu
iiirv 'ly t'"' '''^'''''' ""' '•l>ji^''ti'"i "•'■'* I'liiilo. Tiif
^H
1
II liie ^^1
1.
\KiO:. ^^H
II.
Jll M ^^M
^M
liiiaiit's intrii- ^^M
limit iiliiiccfv ^^H
ti'i'iii tiiailiiiit ^^M
III.
1 iiitoi'iiiatinn ^^M
IV,
iirt, u|H'>ii tiic ^H
V.
't'l.'iii'iU III' tile ^^B
VI.
It; a|iiilii'anta,« ^H
, i)f \\h ptw, ^H
VII
I'llUlul ^H
VIII
the jiirycame ^H
iiceilaveniiot j^H
IX
acciiaeil then ^H
iiillVt ri'filsi'il tliti illfiiI'Mmtiiili. T/n (fimn i.r
,,/. ,v/m'/-v. f.K'-/. :»<•. 1'. •-'()!'.
(Iiiaiipliiatinn Inl'Iciivu to lilt' acriiiiiiiitl iiifoi'.
niatliui iiKainst a |)ivi«ioli ('oiut jinlgit, t'or liLt
I'limliat in i>ii|>iiHin;^' a line for conteniiit iilioii ii
liarri!itei'i'ni|iliiyi'<l to ooiiilui.'t a ihhc iH^fmr liiiii :
llcM, tliut Hiirli luavt! mIiouIiI iiovit 1)1! giaiitfil
iiiili'.in till' riiiii't Mi'f plainly that iliMlioni;»t, oji-
iirt'smivt'.vinilii'tivo, iirLorniiitinotivi'M iiitlnt'infil
the niiml, ami [H'oniptoil tlit^ ai't i'oni|ilaiiiL'il of,
wliiili ill tlii'< •'•''•"i' waH t^U'iiflv not slii'wn. /»/ ri
Till Ittoirili r mill ./»'/'/'' o/''"' l>ii'lmni Court of
till- Vitij III Tiinnilo, -3 <i. B. .STti.
Quart', ulii'tliur stiili infurinatioii ii4 proiH'r in
till' cam' iif a iiiilgi' of an inferior court ol livil
iiiii«ilii.'tiiiii, in rt'latioii to a matter over « liiili
la'liiwMcliisive jiirisilictioii. I h.
II. ^risrKI.I..\NKi)fs (■,\sF.'«.
.\iriiiiiiial infnnnation innnt lie .>*ignuil liy tlio
mai'tiTiif tilt' crown otfice. /'lyiiiu v. ('mok-n.
Tilt, S, T.U
iiii|mtting iitr tliu trial of an information for
iiciialtii'.H. "11 the application of the ilefenilant, |
(.^ts will 111' inipo.seil aH in civil cases. A'l.i- v.
/.'-., K.T. I Will. IV. '
Itisniit necessary that there shonlil lie lifteen
ilavs lii'tHi'i'ii the teste anil return of a sulipiena '■
mi a criiiiiiial inforniation, where the venue is laiil '
111 till' Hi mil! District. Hnjiiin \. <'viiiik:i, K. T. '
:{ Vict. i
.\ii iiifni'iiiatiiiii to restrain a nuisance cau.scil
jiy tliei'U'itiiin nf a fence on a pitlilic lii^'hway,
.iili'f;iil that "the ilcfemlants or some or one of
tiiiiii iiail put lip such a fence :" - Hehl, hail, on
ili'iiiurrt'i, a.s hcing too inicertainan ullef^ation an
to who iiail ciiinniitteil the act conijilaineil of.
.\iliifiiiii<ii III fill V. Itiiiiltiiii, "20 ( 'hy. ■ViVl.
fltlMINAI, !..\\V.
Amson, 904.
.\ss.\i'i.r.
1. (Inin-Hllii, !)05.
-. Sum mil ri/ Viiiirirliiiiis for, (HXi.
:). With hitiiil III ItiirtHli -Sn- H \ I'K, !»;«.
4. With fiiliiit III Miiri/i-r—Sir Mck-
iiKH, 025.
ArrKMi'i's ro Co.M.vii'r C'hi.mk.s, !HX5.
Hii;,\MV, !)07.
Hhihk.uv, !K)8.
BrRfii..ufV, !K)8.
OiiN, (Offences keiatinu rn,) !)08.
CovxpiRAcv, <J08.
OtSERTION, (AssISTtXi SaIUHIs uR
SoLuiERs TO Desert,) IK)J).
.\. Ki.ErlliiVs, (OfKK.Ni K,x CONNKirKO
utrii,) tHK>.
.\l. Km HK/./. I.KM F. .N r \.NI) KllAl;li.-» II V
'riiCsiKE.x, A(iENr,x, A.Nli O'I'IIKH.I,
.\ll. Rsi .\|'K, 111'.'.
.Xlll. KxTiiKriiiN, !ti:i.
XIV. Kai..sf. I'kktkm f,>.
1. 77<f Ofriin, itj.T
2. /iiilicfiiiiiif, !(!.'>,
\V. KoRt iiii.K, l•;^rll^. !iir>.
.XVI. Ki.iikh.n A(ii.HF.s«ioNs, <,»1(}.
.W'll. KnliFKlS F.NI.IsrMFNT, !)I7.
.will I'"i.|<i;F,1<\, !»|,S,
.\l.\. KltAII.I I.KSr .\s.-.|liNMKM', !)20.
.\.\, Friis riF.n, (OiTRMjK.s im'on,) 0*21.
.\.\[. KiiiNAi-nsi,, !f.M.
.\XII. l,Aiti I'..NV, !»■.••.».
.\.\'lll. I.IIIF.I. Sil l)KF\MAr!t>N.
.\.\1\'. M \l.ll llll >T.S [>KS'ntO\IM; KKCORU'J,
.X.W. .Mksacfs ami 'rilKK\l"H
1. Till njlhiri, '.r2r>.
'2. < 'mil mil nil III /n ill j) /III J'<iiri'—Sce
.IisriiK OF the I'eaik.
.\.\'\'l. Mi'KliKIl AND .M AN.SI.AIdirrKli.
I, T/ll 0//i ;„',«. <»•_'■).
•_*. lii/iiiij Dirliinilioits, !>*JS.
.\.\VI1. OiiTAiNiNi; M(>sK\ wrrii i.NrKvrTo
Dkfkai ii, !••_".».
XXVIII, I'EIIII KV, '.f.MI,
XXIX. Kapk.
1. Till Ollnii-i, IKV-V
'1. Kill rl of Hr'iili i.ii nf hi Artioiis of
Sii/iiiiiiiii Sii Ai'TioN ANit Suit.
\\X. Itior, <.»3'_».
\X\I. SAIRlLKliK, 'XVX
xxxii. TiiKAsuv, o;a
1. Alliiiiiili r fur Si'i .'XrrMNDKR,
XXX I II. OriIEK ((FFEM'ES, 'XVX
X.X.XIV. ri;iirKi)ri!K ami I'hai rii k.
I. Iiiilirliiii III.
(a) ]'ii,iii, >.)U.
(li) Jii'niilir III' ( iiinil.i nml Di'fen-
i/iiiil>, <t;u.
(c) Sliiliiiii'iit oj'Oirm rK/ii/i of Pro-
Ill li I/, !(3,").
(il) Ciiiii/ of, <»;)5.
(e) A iiifiiiliiiiiit of 'Xiii.
(f) Ot/i,r rV(.vf.v, »;«i.
(g) li'i iiiiirnl of— Sec Ckrtiokaki.
2. /'liii of Aiilrifols Aniiiil, 9.S7.
.1. Sinn ma ri/ Trial liiforf County
,lu(l<ir, [VXi.
4. Other Caxi'x, 9.18.
5. ConrictiuVM — Set Ju.stK'Kh of the
Peace.
■! I
IMAGE EVALUATION
TEST TARGET (MT-3)
V
<° WJ'..
:/
1.0
I.I
1.25
m
IIM
IIIIU
IIM
2.2
2.0
1.8
i-4 ill 1.6
V
'^
Photographic
Sciences
Corporation
33 WEST MAIN STREET
WEBSTER, N.Y. 14580
(716) 872-4503
,\
iV
"%
4^
\\
V^
O^
4is
Ua
»
'; i
903
CRIMINAL LAW.
%i
m
u
I
XXXV. Jury.
1. Suiinnoniitij, !)40.
2. (J Ik I /l> II ',/>-■<, 940.
XXXVI. EVIDENCK.
1. <'<iiift'.s.si<jn.i nil'/ A</.iii!><'<ioiii', 941.
'2. Dijxisitiiiii.t, 943.
3. i'liiiijii'ltiirii of Witm stiix, ^^^.
4. Accuiii/il'ii'r.i, 943.
y 5. (ttlirr CV(.sr.,', 944.
('). /ii E.itriiil'diim Priirii'iliniji — iSVr-
KXTHAliITKiN.
XXXVII. Nkw Tkiai., 94(i.
XXXVIII. Vkkhk r, Jrn(iMK.NT,.\Ni) Sentence,
947.
XXXIX. Error and Appeal, 949.
XL. Costs, 949.
XLI. Bail, 949.
XLII. Mi.^i Ei.i.A.vEoi s Cases, Ool.
XLIII. I'ARTIrrLAK OkEENi'ES.
1. t'liiK/xiiint/iini Froxi'iuitionii — .SV'
CoMPKOMISlN(i.
2. Front it iil'wH — ,SV<' Bawdy HorsE
— PKOSTITI-TE.
3. OhtaiiiiiKj Liiiids fruiii liiil'toitx —
Sii- IxDiAx Lands.
4. Xntyttncfs — See Ni'Isance.
5. Solcof /'llhlli-Ojfli-i-.s — ,SV. ItFFD E.
(). lifhitiini to Cii-stoiii'< (Hill Errisi —
.S'"' Revenue.
7. Siiiiojuliiifi — Si'i; Kevenue.
S. Siuiilnij — «SVe Sunday.
9. /U/i/ft/ Siili- of Lii/iwi-f! — /SV'(-
Taverns and Shops.
10. UhjliifiuJs — ,Sii Wav.
XLIV, APPREirENSION AND AhKEST OF OF-
FENDERS.
1. Ai-r<:-<t.
(al li'i Fr'ii'iili JiiilirhliinU -Sec
• ' Arrest.
O'l -/>'// C«((>i/((';/(-.SV( Constap.ee.
2. [Viirraiit of ('oiiiiiiiliiunt — S<'('
JUSTICKS OF THE PeacE.
XLV. SUIMMARY CoNVn TIOXS — .SV.' ,lrs-
TICES OF the I'KACE.
X^iVI. EXTRADI'IDIN OF Cr I M I N A l,S — .SVr
Extradition.
■ XLVII. Habeas Cokpu.s— .sVc Habeas Cok-
I'CS.
XLVIII. Susi'ENsioN of Actions in Cases
OF Felon 'i-ySVf Action and Suit.
XLIX. Criminal Inf(jrmatiox-.SV(' Crimi-
nal Information.
L. Recooxizances of Criminals and
Witnesses — iSVt Rei'oonihance.
LI. Actions for Malicious Prosf.cu-
TioN — (SVc Malicious Arrest,
Pkosecutiox and Other Pro-
ceedincjs.
I. Arson.
A building used by a carj)eiiter, wlm was iji,t.
ting up a house near it, as a place (if ikiinsiu,.
his tools and window frames wliich he liml mS
but in which no work was carried uii bv him.
Held, not "a building used in canyiiiu i,,, ,i
trade of a carpenter," within 4 & 5 Vict. f. \
s. 3. Hi'ifnia V. Smith, 14 Q. B. 54(1.
The remains of a wooden dwelling hi mse, after
a previous fire, which left only a fJxi- rafters <i
the roof, and injured the sides and Wmm sn -^
to render it untentable, ami wliich was btin
repaired : — Held, not a building within sec. ; ,5
32 & 33 Vict. e. 22, so as to be the subject (^i
arson. Hnjiiin v. Lalmilh', 32 (,». Ii, 'l->n
Upcm au indictment for arson, the iirisuiin
was proved to have re(piestcd or pidcureildueS
to set tire to the house, telling S. that lie had
his house insured, and asked if he wiiuM i,(it
set fire to it. He also stated that "his insur-
ance would run out next day, and tliat he, S,
must set the house on tire that night.'' Tlit
evidence also shewed that a sum had lieen
awarded the prisoner for his iiisnraiiee, in iiay-
ment of which he was seen to have a liill cif ej.
change on Lomlon in his possession : -Held
that under C. S. C. c. 93, s. 4, it is necessary,
where the setting fire is to a man's nv
house, to prove an intent to injure ami dc-
fraud, altlumgh the words " with intent thereliv
to injure or defraud any pcnscin," iiitnidiiceil
into the Imperial Act, are omitted in nurs.
The indictment alleged that the prisdiicr iliil
incite, &c., one F. 8., the said fehmy in fcnn
aforesaid to do and commit, with intent then
and there to injure and defraud a certain in-
surance company called, i^c. :-Hel(l, neces-
sary to prove that the premises were iiisiirtii,
but Draper, C. J., was of opiiiinn that tlic
indictment would have been sutheient if it
had ended with the words "to injure ami de-
fraud," the insurance being a matter of prnnf,
and that the prisoner's statement or aclniissioii
was evidence suflicient to support the indict-
ment. Hagarty, J., diss. Bi-iihui v. Bnimt',
12 C. P. Hi).
In an indictment fm' arson, it is uiinecessary
to charge any intent, as our statute (ililferiiiL;
from the English Act) does not make the iiittut
part of the crime. This omission, however, it a
defect, wouhl not be ground for a new trial, un-
der C. S. r. C. c. 113. A'l'iiiiii V. (;i-iiiiirii„il,'Si
Q. B. 2r«0.
But though the indictment is sufficient with
(mt alleging any intent, an intent to injure or
defraud must be shewn on the trial. Hiifimi v,
Croitiii, Q. B. H. T. 187o. Not yet reiiortcii.
The priscnier being indicted for unlawf ally »!
maliciou.sly attempting to burn his own liiiiiH'liy
setting tire to a bed in it, it appeared in evideurt
that the dead bo.iy of a woman was in the M
at the time : that her death had been caused k
violence: that she ha<l been recently delivered of
a child, whose body had been found in the kitch-
en ; and that she had. lived in the li(iH.se since it
had been v nted by the prisoner, win) frei|ueiitly
went there at night. 1 1 was also shewn that the
prisoner had been indicted for the murder of
this woman and ac(piitted, and the record uf to
acquittal was put in. This evidence was elijec-
tftl to as tending to prejudice the iirisnner!
'm
iif iluiiiisitti.:
1 hf liiid iniidt,
111! liy llilll;.
'•'■yiiig nil tlij
■> Vict. c. '2(1
4ti.
nglidusf, aftei
fc«' rafturs v
111 tliiiirs su as
ich was bein^
vitliiii set. Tiij
tlif sulijwt iii
IS. ■<-"l
1, the prisnmt
[il-oulU'L'ihiiieS.
S. that \w had
he Wdiilil nut
hat "his iii.Mir-
1(1 that hu, S.,
t iiiglif Tilt
.sum had Ijetii
airaiiw, in jiay-
ve a hill (if ex-
<essi(iii :--Hel(l,
it is necessary,
a man's nv
injure and dt-
1 intent tliereliy
in," inti'ddiiceil
nitted in mirs.
le iirisiiner diil
, feliiuy in fciiii
ith intent then
1(1 ii certain in-
; -Held, neees-
is were insured,
liiiiiin that the
utHcielit it it
injure and de-
atter of imidf,
lit (iv adnii.yidii
Kirt the iudiet-
iiii V. Brijiim,
is unnecessary
iitute (dill'eriiig
ike the intent
liiiwever, it a
a new trial, uii-
-ulticieiit with'
lilt td injure (ir
rial, /m;/'"" v,
yet relKirted.
unlawfully and
is iiwii iKiUM'liy
areil ill eviduiKf
was in the Iwl
been caused by
itly (Icliveretl ni
.' in the kitdi-
,„ hdusesiiia'it
wild freiiuently
shewn that th(;
the niunicrol
le reciird ciliis
ence wa.s "liji^i;"
tlie iirisiiii(;r'8
IIK
h
905
CRIMINAL LA.W.
90C
mt, Jli-'ld, iiilmissible, fur the house being | he might iiavo liueii hit, is ;iii jissault. It was
Held, here, thn-t there was suthcieiit ovidenc'e of
the iirisoner having i1(ii1(J this, ami a cdiivictioii
for as.saiilt was iiplu bl. ///.
Sci. fa. upon r. reengiiizaiice tn kee[) tlio peace
and be of good Ijebaviiiur towards Her Majesty
and ail her liege subjects, and especially towards
H. ^1., charging an a.-;sault ami breach of the
peace. F\>r the crown a judgiiii.'iit of the Court
of Quarter Sessions was proved, atfirniiiig a con-
vi'jtiju of defendant before magistrates on a
charge of assaulting H. M. " iiy using insulting
and abusive language to him in his own office,
and on the public street, and liy using his list in
a threatening and inciiaciiig manner to the faci!
and head of said H. M :" -Held, sutficicnt proof
iif a breach of the [icai c. Held, also, that de-
fendant was jiropcrly convicted, for the otlence
charged amounted to an assault. /tn/hKi v.
Jfarnirr, 17 Q. B. i'),"),").
the iiriBiiner s, it was necessary to shew that his
itteiniit td set tire to it was unlawful and mali-
eioiw. and these facts might satisfy the jury that
the murih'"' being committed by another, the
i.riinnor'sact was intended to conceal it. Rr'jiiia
ranr, -(«/, -'3 Q. B. 2.-.O.
On an indictment for attempt to commit arson,
the evidence shewed that one \V., under the di-
rectinn of the prisoner, after so arranging a
hlankct saturated with oil. that if the Hame
were cdinniuiiicated to it the building would
liave caught lire, lighted a nuitch, hehl it till it
w'as hurnliif; well, and then put it down to within
111 inch in- two of the blanket, when the match
went dut, the Hame not having touched the
hhnket- Held, that the prisoner was properly
convicted under .'« ct 33 Vict. c. •J2, .s. 12. AV-
(/('«(( v. (I'liiiihiiiiii, '2'2 ('. P. 338.
See Jii'l'iii'i V. /liiiiihli/. Hi Q. B. (il7, p. !)43 ;
Jtt.fiwi \-^ Criiiiiii, (). B. H. T. 187"), p. !t3().
II. AsN.ui.T.
1. Oi'iiiritl/i/.
Where a man is himself assaultei
disturhing the peace
arrest the iitibuder
„tti(.er td answer
ly a person
ni a public street, he may
and take him to a peace
for the breach of the peaoe.
151.
f,„T..<''/' V. Chirkr, 3 (i>. B,
Hefeudant was inlicted for a riot and assault,
aiul the jury found him guilty of a riot, but not
(if the assault charged :— Hehl, that a conviction
tor ridt Oduhl not be sustained, the assault, the
object (if the riotous a.ssend)ly. not having been
fxefiited. although the defendant might have
btciigniltv (if riot or joining in an unlawful as-
^eiiiUy. HiViix' "■■ 1<-'"'M <> <-'• B. 372.
I'nder C. S. C c. !)!), s. (Ki, there can be j
iiinmvietidu for an assault unless the indictment |
ibirges an assault in terms, or a felony neces- :
sarily including it, which manslaughter is not. |
Whiire, therefore, the indictment was for man- 1
siaiijiter, in the form allowed by that act,
ihiirging that ilefeiidants " did feloniously kill
and slay" (inc I). : Held, that a conviction for
assault cduhl init be sustained, lii'ijina v. />('»;/-
»rii/ A- Cunnii, 22 ii. Ii. 283.
Hehl, fdlhiwiug Hegina /'. Bird, 2 Oen. ( '. (.'.
114, and lieghia i: I'helps, 2 Moo. ('. ( '. 240, that
"11 an iiKhctnient for nuirder the prisoner cannot
le Kinvieteddf ail assault under 32 & ,33 Vict. c.
•J'.t, S. 51. Itrilhld V. (.'lllirs, 22 C. p. 185.
I In an indictment for murder in the statutory
iiinii, iidt eharguig an assault, the prisoner, under
S'.'itS.'J Viet. c. 2!t, s. 51, cannot be convicted of
an assault; and his acipiittal of the fehmy is
therefdie iw liar to a subsecpient indictment for
the assault. li.i/iiKi v. SwiHi, 34 Q. B. 552.
Per Wilstni, J. - In this case there couhl have
l)ccn no cnnvictiou for the assault, because the
evidence ujioii the trial for murder shewed that
it (lid not conduce to the death. Ih.
Upon an indictment for shooting with a felo-
nious intent, the prisoner, if acquitted of the
felocy, may he coiivieted of common assault.
%ina v. CVoHdH, 24 C. P. lOG.
To didcliarge a pistol loaded with powder and
waddmg at a person within such a distance that
C. S. C c. 91, probably applies only to common
assaults, &c. A charge of assaulting and beating
is not a charge of aggravated assault, and a com
pLiintof the former will not .sustain a conviction
of the latter, though when the party is before
the magistrate, the charge of aggravated assault
may be made in writing and fidlowed by a con-
viction therefor, /ii rr MrKinKuii, 2 L. .1. N. S.
.324.— C. L. Chamb.--A. Wilson.
The Court of (Quarter iSessions has power, in
the case of an assault, to pronounce a sentence
of tim; and co.sts of prosecution, and imprison-
ment in case of default. O/v-hx v. 'J'ai/lnr. 19
('. P. 49.
See I'liihiii V. MrEioi/, 20 (,».
]\i'(,lhui V. ('<i)iiii>llii, 2<i i). 15. 31'
B. 344,
'. p. 932
!'•
92(>
2. Sinnmiirii < 'niiririiiins fm:
On motion to (juash a conviction by two
justices of the county of Norfolk for an assault:
— Held. I. That stating the offence to have been
c(unmitted at defendant's place in the township
of Townsend was sufficient, for O. S. U. ('. c. 3,
s. 1, sub-s. 37, shews that township to be within
the county ; 2. That it was unnecessary to shew
on tlie face of the conviction that complainant
prayed the magistrates to proceed summarily,
for the form allowed by C. S. (.'. c. 103, s. 50,
was followed, and if there was no such reipiest,
and therefore no jurisdiction, it slnmld have been
shewn by affidavit ; .3. That it w as clearly no ob-
jection that the assault was not alleged to be
unlawful, llcijinii v. SIkui; 23 Q. B. (iUi.
It had been previously held that the prayer
for sunnnary jurisdiction should appear on the
face of the conviction, even if not necessary on
the face of the information. //( iw tSuHtzcr and
Mrh'rc, 9 h. J. 2()C, -Q. S. -Harrison.
III. Attkmi'Ts 111 Commit Chimes.
Held, that a prisoner indicted for a misde-
meanour (in this case it was for false pretences)
may on such indictment be convicted of an
attempt to conmiit the oflfence which is a misde-
meanour, lit'ijbin V. (jloff, y C. P. 438.
The prisoner was convicted of unlawfully at-
tempting to steal the goods of one J. G. It
appeared that he had gone out with one A. to
!■■
■f
A
r'
■ ! ■
}
'
■ ; 1
■ ^ ^1'
■»
Mlllh
1, • ^ \(
i
m
m
\
1^
907
OKIMINAL LAW.
CJooksvillt;, Hiul (.'xamiued .1. (;.'k stoii^ with a
view iif i(il)l)iMg it, ami tliat afterwiinls A. and
throe ()ther.«, liaviiig arranged tlie scheme with
the j)ri.s()ner, started from Toronto, aiid made
the attempt, but were disturbed after one had
got into t}ie store through a panel taken out by
tliem. I'riMoner saw themofi' from Toronto, but
did not go himself : -Held, tliat as those actually
engaged were guilty of the attemi)t to steal, the
prisoner, under 27 ife 28 Vict. c. 1!),
paixiits oi' guardians, the husbam
age is no objection even by the I'lu'lif^l
Act ; but, (juiere, whetlier that act i-
liere. J{f>jina v. Sirb-r, 14 (^. H. tiO-}.
^■illg lllnl,-
Mai-riii;,,
in fill..
properly convicted.
B. I. 52.'
JicilhlH V. Eifllli
!t, was
, 2(> O.
Attempting to bargain with or procure a wo-
man falsely to make tlie affidavit jtrovided for
by C. S. U. V. c. 77, s. (J, tliat A. is the father
of her illegitimate cliild, is an indictable otl'ence.
Eetjhia v. Clement, 2(i Q. B. 2!)7.
On an indictment for attemi)ting to have con-
nection with a girl under ten, cimsent is imma-
terial ; but in such a case there can be no c(»i-
viction for assault if there was consent. A'l'/hiii
V. Ciinuolli/, 2(i q. B. 317.
V. BiiiiiKiiv.
Wliere a statute relating tonuniiciii.d
made no jirovisions to
Hobinson, C. .1., it wouM
able offence. ItKi'mn i-j:
1". Q. B. 140.
clwtii,
repress biil^.i-v . |,
nod(.ubt beaniiiilv,.
VI. Brii(ii.AiiY.
Burghiry is not an offence witliiii tlic Vslil,,,,
ton treaty, or the Statutes of (Jauacbi ii:is<,.,it
give effect to it. /n v li<-cln; .'{ p. |;. 27;!,
Chamb. — Morrison.
Attempt to commit Ijurglary
MrCinii, 28 <,>. B. 014, p. !)07.
<'. I.,
I ';/■/»/
The prisoners being indicted for an attemjit |
to commit burglary, it appeared that they had j
agreed to commit the offence on a certain night, I
together witli one ('., but C. was kept away by ;
his father, wlio Iiad discovered their design
The two were seen ab(mt
VII.
Coin (Offk.vcks hri.a
Section 18 of ('. S. C". c. !)0,
offence to have possession of aiiv
feited to resemble, or any dies for
twelve that night" to ; "jf imitating, any foreign
• ■ " described in the I()tli section
TIMi Td),
inakf.s it
■0111 CilUlltf.].
the piu'iiifr..
gold CI- silvur ciii,
come within about thirteen feet of the house, , ilescrihecl in the l()tli section of tlic act. TW
towanls a picket fence in front, in wliicli there i fc'"l'' '"' silver com there descrilicd are any nm
was a gate ; but without entering this gate they | <"' foarse gold orsdver resembling any coin' ma.l.'
went, as was sujiposed, to the rear of the house, ' ".V the authority of any foreign state ami tlicii
and were not seen afterwards. Aft'-rwards, ! •"■^tually current there, though ii,it cuinnt l.v
about two o'clock, some persons came to the 1 '•''•w in this province. An iiidictniciit unckr tliis
front (Uior and turned the knob, but went off on section alleged, that tliere was a certain siho.
being alarmed, and were not identified :— Held, "'*'» known as halt-a-doUar .struck by and
that there was no evidence of an attempt to
commit the offence, no overt act directly approxi-
mating to its execution ; and tliat a conviction.
therefore, could not be sustained. Heifma v.
Mi-Vann ,t >tl., 28 Q. B. r,]4.
Attempt to commit arson.
Gomlimtu, 22 C. P. 338, p. 905.
See Jiiyina v.
IV. BlUAMV.
Tlie witness called to prove the first marriage
swore that it was solemnized by a .T. 1*. in tlie
state of New York, who had powei' to marry,
but this witness was not a lawyer nor inhabitant
of tlie United States, and did not state how the
autliority of the justice was derived : — Held,
insuthcient. Reijuia v. SinUli, 14 Q. B. of!;"!.
Where the prisoner relies upon tlie first wife's
lengthened absence, and his ignorance of her
being alive, he nnist shew enquiries made and
that he had reason to believe her dead, more
especially when lie has deserte<l her ; and this,
notwithstanding that the first wife may have
married again. //).
The Hnst wife is not admissible as a witness to
prove that her marriage with the jirisoner was
invalid. Reji'nia v. Madden, 14 Q. B. 588.
The evidence of the first wife is not admis-
sible, or is that of the second until the first mar-
riage is proved. Jieu'ma v. I'tdiliee, 1 P. R. 08. —
0. L. Chamb. — Macaulay.
It is not necessary that marriages shall be
solemnized in a church. Where banns have been
published, and no dissent then expressed by
rent in the United States, tliougli ii,',t ciirrcii?
by law in this province, and that the difciitlaiitv'
had in their possession counterfeited coin, eiuh
piece resembling a piece of tlic cuiicnt cuiii m
the United States of the value of fifty cents, and
I called therein half-a-dollar, and also dies use'!
j to counterfeit the current silver coin of tli>'
I United States called half-a-d(illai>, etc. .-Held
on demurrer, that the indictiiiciit was liad, iVr
not alleging that the counterfeit cuiu wliiili'tlif
j defendants had resembled sonic gold nr silvii
' coin of the United States ; but that the allega-
tion as to the dies was sufficient, witliont iillegiii.;
that the silver coin was not cnrreiit in tills id-.'
vince. R'ljinnw Tleniei/, '2i} (). K ISl.
VIII. ('ON.SI'IKAI V.
Indictment charging tli.it dcfcnil
" ifl
, „ ants, I{.,t'.,
and I), were townshipcouncilloi'.sof Kast Nissuuri,
and K. treasurer ; and that defendants iiitti:-
iliiig to ilefrauil the council of f.SOOnf theuioiiiy
of said council, falsely, fraudulently, ami uiikn-
fully did combine and consiiire, unlawfully aiil
fraudulently to obtain and get into tlieir hand?,
and did then, in pursuance of such ('(insjiiracy,
and for the unlawful jmrpose afoiesiiiil, unlaii-
fully meet together, and fraudulently ami imlaii-
fully get into their hands £300 of tl'io moneys nt
said council, then being in the hands of said T.
as such treasurer as aforesaiil:- Hehl, hail, ni
writ of error. Jformmtni v. Jh'ijhiu, 10 Q. B. M,1.
Upon an indictment for conspiracy to procure
by friiud the return of one F. asaiiieniberdftlie
legislative assembly : — Held, that it was clearlv
unnecessary to prove that all the defeiidauti, or
•lll.v
1 I'l'iiiguii.l,-
lisl] Marriav
t is ill [i,i ,.
101.
lililifi-v : r,,
. l)t' an iiidi.t.
("Ill V. //i,.,,.
II tlu- Asliliiir.
liiibi jiiissi'd ti
i:.-J7;{. c. 1.
lINi; I'll).
iiiakfs it ail
■ I'liiii cimiitci-
ir tlU! IIUI'IKIS.;
(ir silver coin
tlif act. The
il aro any mn
any cuiii iikuI.'
state anil tliwi
lilt oiii'R'iit liy
u'lit niidiT tliis
I ffrtaili silver
fk liy ami cur-
L,'li nut current
tlio ilcfcii(liiiit<
ituil cniii, c:u!i
current cuin n;
tifty cents, ami
also ilies iiscl
r t'liin of til'.'
-r, &c. :-Hel.l,
It was liad, fur
cciin wliidi tile
jolil nr silvir
111 at the allojia-
itlicint allcgiiL;
nt in this im-
]',. I SI.
Iii'lauts, li.C,
' Ivist S'issoiiri,
tendants iiitw-
lOiif thcmoiiry
liy, anil unlan-
liiilawt'ully ,iii!
1 t'leir haiiJ?,
Icli coiisiiinu'},
lircsaiil, imlan-
Itlyandmiliw-
1 tiie moneys nt
Lis of saiil T.
1 Held, l«tl, "!'
IGQ. B.'^
lacy to procure
Iniembcroftlie
it was clearlv
lilefeiKJauts, ur
:)(i!i
CRIMINAL LAW
110
uiv two I'l' tliem, actually inct together (lud ooii-
'•..itfil tlic imiceeding c-iuricd (uit ; it was sul{i•
■' 'nt if tlie ii"',V was satistiiid from tlieir I'luiduet
^"^1 fniiii ill tlie cireuiiistiuiees, tliat they were
]X. PiWKKTIDN, (ASSISTINII SaII.:)!.-^ oI'
■<(il.l)IEHS TO Dr.SKKT.)
The Naval Uiseiidiue Act •_'!( iV. ."lO Viet. e.
1011 s. -•''. aiithori/.e.-s a smiiniary coiivietio!)
Iietnre ni:i;;istra.tes for this oH'eiiee, but the lOlst
<cc exiiressly jireserves the power of any eourt
nf ordinary civil oreriuiinal jurindiitioii with re-
siifcttoanyoH'L'uee mentioned in the act puuisli-
ahle hy coninion or .statute law:- Helil, tliere-
fiire tliiit defendant could l)e indicted mider the
(' S U. •'. 0. 100, s. 2. Ji'i'jiiiii V. I'dltirxou,
•JTQ. H- l^-'
Held, per .1. Wilson, .)., that the IniiJerial
Mutiny Act <loes not override the ( '. S. (". e.
100, but that the latter was ])ii»sed in aid of it,
■md is therefore in force. Hnjhiii v. S/ifriiiini, I
'iTC. 1". 1<!0. i
Hehl, per A. Wilson, J., that tiie iraiiishineiit
livtine'("i/ imprisonment iniiK)seil hy the pro- I
vinoial act, stands; aholished as long as the ;
Mutiny Act is in force, and that blie iiriinison- I
iiient can in no case e.xeeed six calendar months : j
hut that the power of trial by the Vinut of ( Iyer [
auilTerminer, under the provincial act has not i
liecii taken away hy the Mutiny Act, and there- ;
lore that the defendant in this case could not eoni-
iilain, as he had lieen tried by a tribunal of this
kiiiil,'aiul .sentenced to no longer imprisonment
tlmnthe last mentioned period ; and that though
a tine (if lOs. had also been imposed, for this
«as merely nominal, incompliance with the }iro-
viiicial statute, and wcmld not entitle him to l)e
'hsohargeil, as the court had power to p.-iss the
prnper judt;meut if an improper one had been
L-ivcu. /''.
\. ElIUTIONS (OKKKXCES (ONNKITKU WIIH).
An indictment against a deputy returning
"Iticer at an election, for refusing, on the reipii-
jiticii of the agent of one of the candidates, to
lulmiuister the oath to certain parties tendering
themselves as voters, was Held bad on denniri'er,
I'lir omitting the name of the agent, lin/iua v.
/;.»/»•», 'ju'. r. 235.
hi the same hidietment another count charged
ikfeiidaiit with entering and recording in the
I'lill hooka the names of several parties as having
vi'ted, although they had refused to take the
''iith prescribed hy law : — Held, not an indict-
;dile otfenee, being a creature of the statute,
which also pre.-icriheil the penalty and the mode
"1 enforcing it. Remarks upon the otlierwiae
"hjectioiialtle character of the indictment, in
Sitting out in the inducement a copy of the )ioll
liiiiik containing a number of names, while none
were meiitioueil in the indictment itself, a
reference being merely made to the "said
list" Ih.
Demurrer to an indictment. Tlie first count
iliarged that the defendant, after haviiig made
the alphabetical list of persons entitled to vote,
I &c.,ina(le out a duplicate original of tlie sjiid
; hst, and certified hy affirmation to its correct-
ness, and delivered the same to the eleiU of the
peace and that in niakiiii; out the certified list
so delivered to the clerk of the peace of persons
entitled to vote, iVc, the defendant did feloni-
ously omit from said list the names, ite., which
names or any or either of them ought not to
have been omitted. 'I'he second count was
nearly the same as the first, the word " insert '
being used where the word "omit" was used in
the first : Held, that the omission ihaigeil hav-
ing lieen from the certified list cleliveied to the
clerk of the peace or " duidic.ate original," the
words "said list. ' referring to the words "the
certified list .so delivered to the clerk of the
peace," w.as a siiliieient description to identify
the list intended. /,'"/;//./ v. Siril-, r, 14 V. V.
470.
As to the objection that it did not appear
that the persons whose names were charged to
have been omitted, I've, were persons entitled to
vote, &c. : Held, that the words in the indict-
ment were not a ilirect and specific allegation
that those persons were entitled to vote. //'.
As to the (d)jection that it was not alleged
that the list was made u]) from the last revi.sed
assessment roll : Held, that by the indictment
it ajipeared that the assessment roll I'cferred to
w, IS the assessment roll for I.S(iS, and that it was
sntticieiitly stateil that the alphabetical list was
made iij) for that year, and that tlie crown would
be iKiuiid to prove such a list. /'(.
Held, further, that botli counts in the indict-
ment were bad, as they should have shewn
explicitly how and in what respects these names
should or should not have been on the list, by
setting out that they were uiion or were not
ujion the assessment roll, (as the case might be)
or at any rate, were or were not upon the alpha-
betical list. Jh.
Falsely personating a voter at a municiiial
election is not an indictable oti'ence. Uemarks
as to the form of indictment in such a case.
Rii/iiiu V. //.)-/;/, 2") (i. B. (its.
See ThiiDif V. Plnlt, 1 Q. R. 217, p. !)2!t ;
H-ilhiii V. Fii.jirrx, 1!) (,». R 4S, 1))). itOit, !t40 ;
/,'-';i:ii<i V. Coirnii, 24 Q. B. (lot), p. 030.
XI. KmMEZ/LK.MF.NT AND FuAias 1!V 'riMSTEKS,
A<;ents, asi) Othf.iss.
The prisoner was convicted niion an indict-
ment under 4 & ."> Vict. c. 25, s. 41, charging
that one \V. entrusted to him for a special pur-
jiose, viz., for the purpose of exhibiting to B. .and
obtaining another note made by prisoner to and
endorsed by B.,--the said prisoner then being
the agent of W., — a promissory note made by
jirisoner payable to ainl endorsed by B., being a
valuable security, without any authority to sell,
transfer, &c., or convert the same to his owu
use ; and that he unlawfully kejit and converted
it to his own use. It appeared that the prisoner
gave an endorsed note, jiayable at Kingston, in
jiaynientof goods purchased, with an agreement
that in case the payee shcmhl Ik; unable to get it
discounted at Kingston, he would procure for
him a new note, with the same endoi-sers, payable
at Belleville. The payee being unable to get it
discounted at Kingston, sent the note tft W. at
Belleville, with instructions to get a new note,
from the prisoner as agreed on ; W. entrusted
\m
lilii
I I
' Mi'! f\?',
^te
911
CRIMINAL LAW.
fili
tlie pri.soiier with tlio iinto, iin his inoiniao that
hi! \Mi\ilil t.ike it to tile on(hivs(!i'M, iiii<l t'itliL'r
rutiiiii it 111' lii'iny liiU'ii :i new ncitt! at (Hiue. 'I'he
prisoiuM', lidwevt'i', liujit tiie note, iiiul uuither
returiu'il it luir iirmiinMl iiiKitiicr, tli(iujj;li iiftuii
rec|Uosti.'il ti) ilii solidtii liy tliu jiayoe aiiil \V. : -
Hehl, tiiat tliu iiiisomr was lupt an aj,'L'iit within
tho niciming of the statute, and tliat the eonvie-
tioii must be 'juashed. Itdi'iiiii \. Ilninx, VM.].
B. I!t4.
Senihle, ali-:o, that it couM not he saiil tiiat tlie
lirisouer was iiitrnsteil witii the note without
any authority to transfer or plLilge tlie »iiii!e ;
<ir that liis retaining it was jiioof of rouvertiiig
it to his own use. //*.
The inilietnient eharged tliat one M. elitiustedi
to defeiiihint. then heiiig an agtnt. a iironiissory
note of one It., for .S'JOO, for tlie ^lleeial liurjxse ,
of reeeiving t'() thereon from A., and tliat di'fui- \
dant, contrary to th.e ]iui'i)oi<e for whieii said
note was eiitnisted to him, did unlawfully iiego- j
tiate and eonvert the same to hi.s own use. It.
aii]ieared that I!, had made tlu^ note for A.'s;
aeeomnujdaticm, and A. lieing indelited to one
(_'. in t"(i, it was agreed that he should deiiosit
this note with M. to soeure the iiayineiit. J>e-|
fondant, by ('."s order, got the note from M. on i
condition that he should give it up to A. on the I
£() being paid. A. afterwards jiaid this sum to
defendant, but defendant kept the note and sued
R. upon it, alleging that he was entitled to do i
so by some arrangeinent with 1!., whieli the jury ;
found was noi. the case, and they convicted \
defendant : -Held, that the ccuiviction could not j
be sustained, for defendant was not an agent ;
within the meaning of the act, wliicli refers only j
to general agents of the kscriptions si)eeiHed ; :
and — Semble, that upon the evidence he was ]
not M.'s agent, or guilty of any breach of trust
towai'dshini. /'i-ijiiKiv. .l/'///.s//o/i;/, "JOQ. B. 24").
The prisoner being a clerk in the Bank of V.
v., was placed in an office apart from the bank,
aiul entrusteil with funds for tho purpose of
paying persons having claims upon the govern-
ment, which payments were made upon tlie
checks of the receiver-general, whose office was
in tho same building. While so employed a
(leticieney was discovereil in his accounts, which
lie at lirst ascribed to a robliery. but ho after-
wards confes.scd that ho had lent the moneys
entrusted to him to various friends. It al.so
appeared that on a certain day he had received
a cheek from the receiver-general for t'14.S!l 1 os.
for coupons on govonimont debentures held by
tlio bank, and had credited himself in account
with that sum as if jiaid out by him on the I
chock, making no oiitrv of the couiions, thus
covering his deficiencies by so much, and making
it appear that lie had paid out the amount of
the check in cash, when in fact he h ' paid
t nothing. Tho indictnient contained two counts ;
the first charging that on, &c. , the jirisoner,
being a clerk, then employed in that capacity
by the bank, did then and there in virtue thereof
receive a certain sum, to wit, £14.39 1.5s., for
and on account of the said bank, and the said
money feloniously did embezzle. The second,
that he as such clerk received a certain valuable
security, to wit, an order for the payment of
money, to wit, £1430 ISs. for and on account of
the said bank, and the said valuable security
feloniously did embezzle. On this indictment
lie was convicted of embezzlement : — Held, tluat
01||.
the [irisoiicr Irid been guilty of eiiilM-z/|,.||n,,,
within the I'.t Vict. c. \'i\, s. 40; ;iii.l tin.. ''
victioii was aliirnied. /''■i/i/in v. r»
(^». J'.. 15.
Hihl, al.-io, that the indictnient w.i.i sntfii'ii.,,.
in form, the omission of tlie coinlu-idii, ^.diik
forman statuti, being no objection. //,.
On an iinlictnunt agairst a treasurer m ,
county for embezzling t'!t I4s. lOil.. recfivuii f,,,
taxes, it ap|)oarcd that defendant I'l'i/t-ivod t'
money in Octobei-, IS,"),s, aii<l resigiieil in pj
riiary, IS.'i!), when his books were taken fi„r
him by the warden, although the u.su.il time f,!.
making up his account with tlu^ •■ouiitv, ,'J|,tii'
March, had not arrived. This suiii wasiidtn.
tered in his liooks as received, iior was then- an'
entry of other moneys received fur tiixt.s at ,
later date ; but after his books had hi.on taki-i
he sent in a list of moneys received, iiieluilii,
this, although liefore he did so it had lieeii statf'
in a newsjiaper that this and other invvnieiUi
were not accounted fiu', There was ini utni
that he wasiudebteil to the county on tliewhult
of his accounts, and it was shewn that lie eiainitii
that they were in his debt; and that the (iiics-
tion was pending before arbitrators, tu wliiiu,
several civil suits be;''\veen liiiiiselt and theemiii-
eil hail been referred, 'i'he jury luunil ilikMi-
dant guilty :- Held, that the evidence ili.lunt
warrant the conviction, and a new trial wis
granted. Held, also, that the inoney was iint
inipro]iorly charged to be the money oi tk
county, though it was received for the tiiwiisliMi
of Maidstone, and was to be accminteit fur tn it
by tho county. J.'iiiiini y, liiillm-k, lIH^t. H. ,-,1;).
A school trustee having money in his liaiuLs
not as secretary and treasurer of a hnanl, oriii
any official capacity, cannot enihez/le sikii
money, his duty as trustee not rciniirinj; or au-
thorizing him to receive it. /•' /■/•/'.- v. /)■«■.')/, id
C. I'. MO.
One 1>., being postmaster at I'lerlin, trans-
mitljd to defendant at Toronto several ]»ist-
office orders payable there, wliieli itet'emlaiit
presented and got cashed, liut it ap|)eareil aftir-
wards that the nionrys thus obtained liail iii'vn
been received by I), for ilcfemlant, ami that
frauds to a large extent had been thus emuiiiitteil.
Defendant having been convieted upnu an in-
dictment which charged him with unlawfully,
fr.audulontly, and knowingly ohtaii'ing froinimr
lady the (^ueen these sums, of the inniieysaiiii
jiroperty of our said lady theO"''Cn, with intent tn
defraud : —Hehl, that tho indictnient was giii«l;
that the 5()th section of the I'ost Otiieu Act,
0. S. C, 0. ;il, was not appliealile tn the
case; that the money was [iropin-ly eliarecl to
be the money of the (^lueeii, nut of the ])Oit-
master ; and that it was iiniieee.ssary to allege
an intent to defraud any partieiilar ]ieisiiii. Re-
marks as to tho extensive nature of the iinnisioii
on which the indictment was fraiiieil, C S.
(J. c. 92, s. 7.S. Somble, that defeinlaiit might
also have been properly convicted muler another
count of the indictment, charging liini with
having obtained the money by false pretences.
Ji('<jina v. iJesmurr, 21 Q. B. 231.
XII. ESC'APE.
One W. was brought before magistrate's in the
custody of defendant, a constable, to aiisw.r »
91 ;i
CEIMINAL LAW.
!tl4
(lociilt'il
ohiiri'i; 111 mi.silcmt'iinoiii-, and iiftor witnesses liad
lieeu fXiUiiincd lit; was vurhally ifiiiaiulod nntil
the next day. Hein;,' then biouglit up again,
the ixainination coneliuled, tiie justices
.,1 t(i talii' bail and send tlie ease to tlie
assizes. He .^aid lie eoulij get bail if he had time
to send t'"' Iheni, ami tlie justices verl)ally
lenunaed iiini till tlie tolldwing day, telling
aetVmlaiit tn hiing him up then to he eiminiitted
„i hailed. I'll that day defendant negligently
Deimitteil him to eseape, for which he was con-
victed ; Held, that \V. was in custody inuler
the iiii'inal w.iiT.int, and the niivtter still peiid-
itii; helnre the magistrates, until finally disposed
„f hv eiiiiiniitmciit to custody or discharge on
hail; and that clie conviction was proper.
ItKi'mu •
SliKKka-urlh, '2-2 Q. B. 37:
.\1II. Extortion.
Where two defendants sat together aa magis-
trates, and cine exacted a sum of money from a
iiersiin ehaii'ed before thein with a felony, the
other not ilissenting ; -Held, that they might
l)e jointly cdiivictcd. Hchl, also, not iudispens-
ahle that the indictment should charge them
with h:iviiig acted corruptly, litijlna v. Ti^dule
,(n'.,20Q. B. 27-.'.
XIV. False Pretencrs.
I. TlwOffvm-i'.
Where a person tendei-s to another a promis-
sory nute (if a third party in exchange for gO'ls,
though Me says nothing, yet he .should be taken
toiitiimi that the note has not to liis know ledge
ken paiil, either wholly or to such an extent as
.ilnmst to destroy its value : — Held, that on the
ovidoiiee in this case it was properly left to the
jury to say whether the note for .'ijilOO, which
(lefeiulant gave to the jirosecutor for the full
amniint, hail or had not been paid exccjit the
valneof half a liiinel of tlour ; and that the con-
viitimi was warraiiteil. Jfn/liiav. Durif, 18 Q.
R. ISO.
The iiribimer represented to the prosecutor
that 11 lot iif land, on which he wished to borrow
mi'iiev, hail a brick house upon it, and thus pro-
I nml a loan, when in fact the land WiVs vacant :
Hulil that he was iiroperly convicted. Ri'ijina
V \hq,id,-l\ y. R. L'81.
One 1). being postmaster at Berlin, transmit-
tal to ilefemlant at T. several post office orders
iNiyahle there, which defendant presented and
:: it caslieil, hat it appeareil afterwards that the
, iiiiiiioys thus obtained hail never been received
lliy b. for (lefeiulant, and that frauds to a large
I extent hiwl lieeii thus committed. Defendant
6 was held properly convicted of having obtained
Ithcso sums with intent to defraud. And, sem-
Ilile, thatilefeiiihuit might also have been properly
Itimvicted under another count of the indictment,
|chargmg him with having obtained the money
Id 00?" l'f*;te"ces. RK/tua v. Dennauer, 21 Q.
A (lefemlant indicted for misdemeanour in
I Obtaining money niider false pretences cannot,
rl ^^' lu*^' "• ^' '■ 62. »>e found guilty of
iianeny. ihat clause only authorizes a convic-
inon lor the misdemeanour, though the facts
iproved amount to larceny. Wliere a defendant
38
on such an indictment bad liciii found guilty of
larceny : Hidd, that the ciuirt had no power,
under ('. .S. V. I", e. I I'J, s. ."{, ti. direct the ver-
dict to be entered as one of "'guilty," witlumt
the additional words. /'n/iiid v. Kinii<i, -1 (^
B. :f2X
'I'he jirisoner, with one I)., whose note he
li(dd, came to the store of H. it R. where an
agreement was entered into between the parties,
that I). Wduld pay for all the goods furnisiied
by H. it v. til the piismicr, on the anniunt being
endorsed on his(l>,'s) note, held by the )iri.siiner.
The prisoner several times called at H. it K 'a
with the note nientioiied, obtained goods, and
had the anionnt endorsed on tlu' note. .After-
wards he called without the note and got goods,
on his promising to bring the note within a day
or two to have the amount endorsed theieon.
Prisoner saw 1). the day after, and directed him
not to jiay anything more than the amounts
endorsed on the note, and he never after pre-
sented the note to have the amount eiidoised
thereon :- Held, that there was no false itpre-
sentatiou or jiretence of an existing fact, but a
mere promise of dofeiidant, which he failed to
perform. K<<ihiii v. Jii r/li.s, 13 ('. P. (107.
Held, that defendant (who was iiulicted for
false pretences) couhl not on tlic indictment and
evidence in this ca.se be convicted of larceny
under C. S. C. c. !)!), s. &2. (iuiere, as to the
meaning of that clause. Jh.
The prisoner soM a mare to B., taking hi.s
notes for purchase money, one of which was for
!3i2r), and a chattel mortgage on a mare as c(d-
lateral securit}'. After this note bad matured
he threatened to sue, and 15. got one It. to pay
the money, the prisoner promising to j^et the
notes from a lawyer's office, where be said they
were, and give them u]) next nioriiiiig. This
note, however, had been .sold by the prisoner
some time before to another person, wlm after-
ward sued B. upon it, and olitained judgnieiit :
-Held, that the prisoner was properly convicted
of obtaining the -ijCJ.") by false pretences. /'I'jiin'
V. L';r, 23 (). B. 310.
The indictment charged one B. with obtaining
by false pretences, from one .J. T., two hmses,
with intent to defraud, and tbat the lU'feiidant
was present aiding and abetting the said !>. the
miademeanour aforesaid to coiumit : - Held, good,
defendant being charged as a principal in the
second degree. Held, also, that the evidence
set out in this case was not sufficient to sustain
the charge, liiijhin v. Cidukii; 14 V. V. .VJtt.
The term " valuable security,"' used in ('. S.
O. e. 92, s. 72, means a valuable security to the
person who parts with it on the false pretence ;
and the inducing a per.son to execute a mortgage
on his property is therefore not obtaining from
biin a valuable security within the act. Rn/ina
V. linuly, 2(i Q. B. 13.
An indictment for obtaining from A. 81 200 by
false pretences, is not supported by proof of
obtaining A.'s promissory note for that sum,
which A. afterwards paid before maturity, lb.
G. , the prisoner, and another, were in a boat
on the bay, and they agreed to take M., the
prosecutor, to meet the steamer, ^^. saying the
charge wouhl be 75 cents at the steamer. The
prosecutor, according to hia own account, took
I ; J'
li
91/5
CRIMINAL LAW
%
out a $'2 liill ;it tin Htoiiiiiitr, sayiii)^ lu' wcmlil j^vA
it (tliiiiigtMl. IVisdiiur Niiiil " I'll oliaiim it,"iiiKiii
wlii jh tlie jirosiicutiif liiuiili'il it ti) iiiiii, and lie
hIiovimI ort' witli it. ( (tilur witiu'Noi's rojircHeiito"!
the jTimiiKTV fitiitt'iueiit to lie that lie IiikI
chaiig>'. The ]irns.ciit(ir iliil imt say whiit iii-
ilueeil hiuitd jiart with ti e iiiouey : i{el(', that
a eciivietioii eoiilil not he sustaineil. /{•^I'mav.
(ir„uu,/f, MQ. I',. aiL'.
See h'rijiiiit V. « 'ani/ihi II, IS h. H. 41,", intra.
'2. i'i(il'(i'ti/i' lit.
Helil, that a juisdner iiidirteil for a ininde-
ineaiiiiur (in this e:isf it was for I'aKse [jreteiices)
may on snfli indit'tnieiit lie convii-ted nf an
atteniiit t" eunnnii the (iHence whiili is' a niisde
meanour. /'I'l/iidt. v. H'lil'. '.) ('. I'. -t;'.S,
Held, that the indietnieiit tui' false juetenees
in tliis ease wa^^i elearly suflieient, as it t'dlhisvetl
exactly the t'oini sainliiined l>v IS \'iet. c. !>'J.
Jf<';iiiu'\. />(/(•;,>■, IS(.,». 1!. ISO.'
A niiniieijiality haviiif,' provided scinie wiieat
for the juior, the defendant <ilitained an order for
15 luishels, descrilied as " three of golden drop,
three of Fife, nine of niillin.ir wheat.'" Some
(lays after he went liaek, and ivpi-esented that
this order had been aeeidenr.dly destroyed, when
another was ;^'iven to him. He then striiek <iut
of the tir.st onlei-, the words "tiirce of golden
drop, three of Fife," and presenting; liotti orders,
olitained in all •_*4 Imshels. The Imlietment
'harged that defendant unlawfully, fraudulently
and knowingly, liy fal.se preteiiees did obtain an
order from A., one of the munieijiality of B.,
i'e(juiring the delivery of certain wlieat by and
from one ('., and by presenting the said order
to (.'., did fraudulently, knowingly, and by false
jiretences, jiroeure a certain quantity of wheat,
to wit, nine bushels of wheat, from the said (?.,
of the goods and chattels of the saiil municipal-
ity, with intent to defraud : Held, sutticient in
substance, not being uncertain or double, but in
efll'ect charging that defendant obtained the order
and by presenting it obtained the wheat by
false pretences. HeM, also, that the evidence,
set out in the case, was siitticient t(j sustain the i
conviction. RiH/ma v. CaDi/ilicll, 18 Q. R 413.
An indictment that defendant by false pre-
tences did obtain board of the goods and chattels
of the prosecutor :-- Held, bad, the term "board"
being too general. lie<ibi<i w Mi'^nnrri', '22 Q.
B. (500.
On an iuilictment for forcibt
tainer of land, evidence
not ailmissible
-- - <iitiy an,l ,1,,
V.,. .if title in ilcli'iiilimt ;,
f'ciihiK V. Ciiki'lii, i;) (^1. ij
I3!t. ('. I-. Chandi.
Seinble, also, that where the pnwiiiitnr In,
i.een e.xamineil a.s a witness, restitution slunil
not be granted. //).
Till' defendant having
be
X'V. FoRt'iBi.K Entry.
The court refused a writ of restitution after a
conviction of forcible entry and detainer, where
the premises were a crown reserve, the lease of
which had expired. Rc.n v. Jackson, Dra. TtO.
An inquisition for a forcible entry, taken under
(5 Hen. VI] I. c. t), must shew what estate the
party expelled had in the premises, or the inqui-
sition will be (juaslied and restitution awarded.
The inquisition is also bad if it appear to the
court that the defendant had no notice, or that
ajiy of the jury had not lands or tenements to
the value of 40s., or that the party complaining
was sworn as a ■witness. MUche.l v. Thompsm,
fiex V. McKreavij, 5 O. S. 620, 625.
XVI. FoUKKIN .A(U;l!l-SMoN.-i.
The pi'isoner was convicted uimii nn iiiilii.t-
nient under < '. .S. V. ('. (■. its, containiii:.' tlirc.-
counts, each charging him as a citizciMif tin
riiited States. The lirst count allc;,a'il tliut hv
entered Tjiper ('anada 'lith intent td kny war
against Her Majesty; ihe second that liu w'as i
arms within Upper Canada, with tliesiijinMiittut; |
the third, that he co/nmitted an act uf linstilin
therein by assaulti'.ig certain of llcr Majestv'<
subjects, with the same intent. The iiiisdiier's
own statement, o.i wdiicli the crown ivstnl, hilv j
that he was born in Ireland, and was a citizen i
the United States. It was objcctcil that tliv |
duty of allegiance attaching from liis hirtli utni-
tinned, and he therefore was not shewn tti In; a i
citizen of the United States lint. Held, that
though his duty as a subject remained, liu iiiiglit [
become liable as a citizen of the I'niteil State
by lieing naturalized, of which his iiwn ilwlara-
tion was evidence. Held, also, uj.on the testi-
mony set out in the case, that tlieve was eviiieinr
against the jirisoner of the acts chai'ijtil. Hell,
also, that even if he carried no arin.s, mi whieli
the evidence was not uniform, yet liuingjuiniil
with and part of an armed body whieh hail en-
tered Upper Canada from the Ihiitcil .States .mi
attacked the Canadian volunteers, he wmililk
guilty of their acts of hostility ami of their
intent ; and that if he was tlii'ie to saiictiim
with his jiresence as a clergyman wliat the rest
were doing, he was in arms as nuieh as tliose
who were actually armed. Jtcii'iiid v. Mr.MAfii,
2i;(,».B. 111").
In this case, the charge being the same as in
the last, it was shewn that tlic j lismier lia.l
declareil himself to be an American eitizen sin*
his arrest, but a witiiess w'as called mi his lifliaji
who proved that he was born within the Qiieeii's
allegiance :— Held, that the crown might waive
the right of allegiance, and try him as an Amen
can citizen, which he claimed to he. The faet
of the invaders coming from the United States.
would be prima facie evidence (if their kiiit'
citizens or subjects thereof. The prisoner asser
ted that he came over with the invaders as
reporter only ; birt Held, that this (ileiuly cwil'l
.1 <j, , :
1)1^
CRIMINAL LAW.
918
IMVUtl'll :lt tl:
n\t fur fiiRili':.
I'lil'iisi'il til (irile
si' was ri'iniive':
t it ^^■a.•< in ti:;
yr.iiit 111' rcfiiit
lUstiiiiiH's it «:!■
•1<) (>>. !i. 211.
hiiteil States aiM
iui wliat tlie Kit-
,.m'imri«"im '*"^' """'i'^^f''^ 'l^'^ig" '" '*"> tlninw- ^
t,.r wdiilil uiaki' him ii sliivivr in tin- j.'iiiit. /{• - 1
!;i,?,.v. /.//«./-, -.'.ig. P.. -^os. ,
'111,, niisiiuer lii'inv in<li>tt'il umli r ('. S, T. ('.
im lui'l I'ii-irgfil us Ji I'iti/fii lit' tlic r. S., was
wiMii'tU'il "II I'n'viiin: tiimsolf to )w ii Hritisli
aiilMi^'t. !!'■ W" '■'i''" I'l'lntcil iiK a aulijcyt nt ^
Her Majf.it.v. ami iiKiiiloil autirfuis aciiuit : i
llcl'l, tliat till' l>li;» ^vas not jir^ivcil, fur tiiat liy ;
• lie ^t;ituto t'.:i' ntrcir.-i' in thi- 'Mse of a fiuvis,'llvr
liiVfi sii'iji^^'-'*' >"* siil'Htftiitially lUttiTfiit, tlio evi
dcncc, incsiit't'tive of national status, wliirh !
wdulii ciiiivift a foreigner, bi'iiij; insiifliciont as
UMiiixt a stibit'i't ; ami the iirisoiior, thercfori', j
'■w'ii ii"t ill lefe'al pinl "" <lit' '''■>*t iiiilii.'tniont. ,
K../,,," V. .l/.',7/-"'/'. •■!<> y- *"•• -"'S"'' ,
'I'll,, niisiinfr, having l)ccn indiotid iin.lor(!.
S r. ('. I', l''"^. l>^ ^ ''^'t- '■• '-'' "*' '^ I'itizen of the
Uniti'il States, was eonvictud of having as siieli |
ioiiifilliiiiiself to .livers other evil .lisjioseil jior-
inns, and liaviiij: lieen unlawfully ami feloniously
inarmsapiiiist the Queen within Upper C.inada,
with intent to levy war .against Her M.ajesty. It
wa« sworn that the prisoner hail s.aid he was an
Aimrican citizen, ami hail l>eeii in the Aineri.-ui
amiv, Mill there was no eviileiiee oHV reil to ••on-
traikt this : -Helil, evidence against the jiris-
oner, as Ins "wn admissions and deelarations, of
thccmmtry to whieli he helonged. Held, .also,
that the tvidence, set out in the re]iort, was sulli-
cieiit tniiriivo tlie ofl'euce charged. The Iniperial
St.itiiti'11 iV I- ^'ict. e. Ill, does not override 'A
Vid. '■. I'.', of this rrivince, for the latter is
recniictcil hy the eousolidation of the statutes,
wliidit'ink place in I S.V.I, NnjliKtw St'irhi, 17
Wll. Foi:Kl(lN E.M.ISiMF.NT.
Till' imiierial statute, .'lO (ieo. 111. c. tl!), tor
pMuriiig and emleavimriug to procure enlist-
ineutR in this country for the army of the U. .S. :
HeM, tn he in force in this province, and a
ciiiivii'tiiin under it sustained. Ui'j'tna v. Srhfuni,
P.uim\:Aiid,i:-«.i(, UC P. SIS.
AwiuTOntitf c'lniniitnient under the Foreign
Enlistment .Vet, .V,l lleo. HI. e. liil, s. 4, reciting
, feitl. K. (.'. '"was this day charged (not say-
.' iiimn iiatli) before us," and without shewing
Uiiv exjiminatiiin hy the magistrates, upon oatli
lot otherwise, into the nature of the offence, and
Icommanding the constahlcs or peace nffioers of
■ ; cmmty of Wellauil to take the said T. K. V.
into custoity ; -Held, sutlicient. /;( v <.'!(' rLr,
01.. J. 33I.-C. L. Uhamb.-J. Wilson.
\ warrant of commitment under the statute,
iMmiuittiiis; tlio prisoner until "discharged by
[due I'ourse of law," suthciently complies with
statute, which provides for .i coinmitt.al
nitil ilelivereil hy due course <;1 law. / h.
A cnmmitment under 28 Vict. c. '2, s. 1, atat-
the offence "for that he on, &c., at, &c.,
I attempt to proc\ire A. B. to serve in a war-
lie or military operation in the service of the
pvermiientof'the United States of Ainei-ica,"
flitting the words, "as an officer, soldier, or
ulor," jic. ;-Helil, bad. In re BnrilU, 1 L. .1.
•!< 240.-0. L Uhamb.— Draper.'
Hehl, that a judgment for too little is as bad
! a juilgment for too much, and so a condemna-
tion to i)ay !^1(H) aiul costs, when the statute
cic.atini.' the oH'eiice inijioses a penalty of .^'JCMt
and <'osts, is bad. //i.
Held, that a connnitinent on a judgment for
ii. penalty and costs, not stating in the body of
the coniniitnient or a recital in it the amount of
costs, is bad. //'.
(Ju.i re, is the jurisdiction of tin.' ollicers nanu'd
in '26 Vict, c 2, a general or a local one. //'.
Held, I. That a warrant of lonimitnieiit on a
conviction had belme a |ioliee magistrate for the
town of < 'liathani. in Ujiper ( 'anada, under the
'-'8 Vict. c. •_', averring that on a day named,
'"at till' town of Chatham, in said county, he
the said A. .'^. did attemjit to procure A. 15. to
eidist to serve as a soldier in the iirniy of the
United States of .\mciica, contrary to the stat-
ute of Canada in such case made and provided ;"
a!:d tiicii jirocceding : " .\nil whereas the said A.
S. V IS iiuly convicted of the said oll'enee befiue
ir.e tlie said police m.igistrate, and eondemned,"
&c.,siitticientlv shewed jurisdiction, /// fr Smith,
1 L. .1. N. S, 24I. < L Chamb. Hagarty.
'J. That the directiiiu t.i take the prisoner "to
tlic coijinion gaol at Chatham," the warrant
being addressed " to the constables, itc, in the
-county lit Kent, and to the keel er of the com-
mon gaol at Chatham, in the said county," was
suttieient. /''.
.'!. That tlie warrant as above set out sutli-
ciently contained an adjudication as to the
oti'ence, tiiough by way of recital. //'.
4. That the words "to enlist to serve"' do
not shew a double oll'enee, so as to make .a war-
rant of ciinmiitmcnt bad on that ground. //*,
it. That the (jll'ence created i>y the statute was
sutticiently describeil in the warrant as above
set out. /''.
(). That the warrant was not bad as to dura-
tion or nature of imprisoinnent. //'.
7. That the amount of costs was sufficiently
fixed in the warrant of ciunmituicnt, Ih.
8. That there is power to commit for non-
payment costs. //).
!•. That the statute does not require both im-
])risonnient and money jienalty to be awarded,
Init that there nuay be both or either. ///.
A warrant of counnitment reciting that F. M.
was charged on the oath of .1. W., "for that he
F. M. was this day charged with enlisting men
for the I'nited States finny, offering them !?,350
each JUS bounty," without charging any offence
witli certainty, ami without stating that the men
enlisted were subjects of her Majesty, and with-
out shewing that .1. ^V. was unauthorized by
( lic:en.se of her Majesty to enlist :- -Held, batl.
I III rr. Marfhi, .S 1'. K. 2!t8. -C. h. Chamb.— J.
Wilson.
XVIII. FORfiEKY.
' ' Mr. W. , please let the bearer, W. T. , have
tiie amount of £10, and you will oblige me. B.
B. Mitchell :" — Held, on an indictment for for-
gery, to be ail order for the payment of money,
not a mere leiiuest. Ue<jina\'. Tub; 17 Q. B. 296.
W-
%¥
'i
' !
I r
■ '; 1 1
■i'iii . : ! ^ Til
']'■■'
JtlO
CRIMINAL LAW.
',j,
"Mr. McK., Mr, WmiM you Iw^i'dl >'iiiiu);li
lis t'lir til li't iiu! Imvi' till' liiiiii (if JjilO tiir our
wui'k III' M((, mill .si'iiil it l>y tlic lieari'i ininu'
ili.it.'ly, mill ii'.iirli i>lilii;c ymir iiiiiMt liiimlilr
survaiit. (Si^'iicil) I. AliiiiniH, 1". I'. ;" Uriil,
lint nil iinltT I'nr till' iiiivMU'iit lit' iiiiiiii'V. lint a
iiK'ii- riMiiu'st. /.'iiihiii V. I!,ni„n,, •_'()(,»! 11. ■JCiO,
•'.S"..."iO. Ciiiiik, Ajiril lOtli, ISii.'J. "J. .Mel..,
tiviltir, I'Iciisi' ^ivc Mr. A. S. to tlif iiiiHuint nf
.SiTiO, anil liy ilninj^ sn ymi will olili;,'!' inr :"
Hi'Iil, an iinli'i' I'm' tlir jiaynuiit ot iiiniiiy, ami
nut 11 nii'iv i'ii|iU'Ht. Hiijiiiii \. Still, l;i('. I'. (>l!t.
.V w rilinj,' nut aildreHsed to iiiiv out' may In: an
iinU'i- fur till' pay nil nt nf inmu'v, if it ln' xhi'Wii liy
i'.viilcnci; for wlioiii it \Na.'^ inti'inii'il. In tliinca.si'
tlio iirik'i' was for .'*l.'), in fiivmir nf "liuaiiT or
K. H.," anil imi'iiovtcil to lit' «i;;m.'tl liy one H.
The ]iri.siiiu'r in jiiTnon (iivsi'iitt'il it to M., rt'iirc-
Hunting liiinsi'lf to ln' tlu' payei', ami a iii'ilitor
of IJ. : lli'lil, tliat it nii-lit fairly lio infirrcil to
Imvo lieon inti'inliMl for M. : ami a ronvittioii fur
forgfi'v wa.H ."distaini'il. Hn/iiin v. /'nrkir, I")
V. I'. ■).■).
Imlii'tnii'iit for ntlcrini,', Xf. . the foUnwinn in-
striiineiit knowing it to lie forgeil : " I, .1. II.,
I'o agree to \V. ('., of \V., the full rite anil
privilege of all the white oke anil elm and
tiiekory lying and standing on lot I'ti, south part,
on the ,'tril ionee.ssiiiii I'lynip, for the sum of
i^.SO, now jiaiil to II. liy •'.. the receipt whereof
is hear hy nieaeknowledgeil." The jury having
eolivieted the prisoner, He'lil, upon a ea.se re-
.serveil, I. That the instniinent forged lieing .set
out in h;ei' verl>a in the indietnient, the de.serip-
tion of its legal eharaeter would Ik! surplusage,
and Mivs nnnei'essary ; "J. That under see. I'!! ('.
S. ('. e. !)!•, it is not neresaary to allege an intent
to defraud in an imlietinent for forgery ; ',i. That
the averment of the oti'eiiee heing contra fonnani
statuti w.is iinniatei'ial, (the olijection lieing that
there w as nothing in the indietnient, which con-
tained this averment, to shew that the ott'em e
was against any statute) ; 4. Tliat the instru-
ment might lie construed as an agreement or
eontraet to sell the timber, or a receipt for the
payment of money, and in either ease came
within the '2'2 \'iet. e. !)4, ami the conviction
was sustained. I'l ii'mu v. Cdr.-mti, 14 ( ". P. 30!'.
A forgiMl paper purporting to he a liank note,
is a promissory note within the 10 & II Vict. e.
9, even though there is no sueli hank as that
named. /.'-;/;/,</ V. Mrlh.mihl, I'J (). 11. .U.'J.
A promissory note had liuen drawn hy the
prisoner, jiayaMe two months after date to the
order of one S., an I afterwards endorsed by said
S., and the prisoner tlieii altered the note from
two to three months, and discounted it at a hank.
Tt was objected that the forgery or uttering, if
any, was a forgery of or the uttering of a forged
endorsement, (the note having been made by
liimself, ) and that there was no legal e\idenee
of an intent todcfraiul : - Hehl, that the altering
the note while in his ow n possession after it was
endorsed was a forgery of a note, and not of an
endorsement ; and that the passing of the note
to the third i)artj% who was thereby defrauded,
was sutticient evidence of an intent to defraud.
Hei/tiiii V. Cniiii, 7 f. V. '2.S1I.
DefendHUt was convicted at the Quarter Ses-
sions on an indietnient for uttering a jjromissory
note purporting to be made by one F. , for .t'4 10s. ,
with intent to defraud, knowing it tn iiff^ir.
It appe.ired that some boys hail lii'(.|| unm,, ',
thi'inselves with writing promi?i,siii'y \^„^^.^ '\
imitating persons' signatures, and ainnii > tbm
«as one with K.'s name. Tiie papiis \v,ri. i,,,*
into the tire, but this note was i iiriinl ni, ||,,'
iliimmy by the draft, and fell iiitn tlic stn,'
W here it was ]iicked up liy difiinjaiit. \ i,
son who was with him .it the tiiin, .sanj tlmt ,
thought it was not genuine, and a(l\i,Mi| Inn,.
destroy it : but defendant kept it, aiiil ,ift,
wards passed it oil', telling the pi ikuh whipti-
it that it was good : Meld, that difi'iiiiaiit »
guilty of a felonious uttering; but tiii'inr,
tioii was i|UMshed, for the indiitiiiciit wn.-i ilv;,,
five in not stating e\pi'essl_\ that the nuti' »;,
forged, or that defendant uttered itastniriaw
the case should not have been tried at tlu' Onv
ter Sessions. Itniinn v. /)iiiili,/,, |.-, i^i |; ||,
The <>>uarter Sessions has nn jiiii.sijiitii.ii ;,
trv the oirelice of forgerv. A'..//,/.' v. l/c/),,/„,„i
.si' i). 15. Xil.
Seinble, that on the evidence, ^t.itiil in tkt
report, the testiinniiy of the ]iios(i iitur, mIkw
naiiK! had been forged to a nntc was .-iiiliiLicutlv
corroborated. //'.
I'lisoner was indicted for for:,rj,|M an iiniir ii.i |
the deliviiry of goods. Tiic only Vitiu'ssi's m
aniined were the iierson whose n.iiiie \va.> fnii'iii I
and the person to whom the order w.'isaiMivssulj
and who deliviM-cd the goods tlieremi ; aiul tiiirtl
was no corroborative testiiiioiiy ; Ibid, (iiiiiitj
10 iS: 11 Vict. c. it, s. 21) not sutlicieiit i\iilm'e|
h'riiiiia V. OUcx. (i V. v. 84.
An indictment will not lie f'lr foigini; iir.iltir I
ing the assessment roll for a to« nsliip ileiimiftiij
with the clerk. Ittifniii v. I'nstni,, '.'I (,l. 11. (ii; f
A prisoner was arrested in l'|i])ef t'aii:iil;i furl
having eonimitted in the riiite.l Stati.i "tlwl
crime of forgery by forging, cniuiiig, &c.,»|iiiniiii(l
silver coin,' &c. : Held, I. That tiie iilit.'iki','i!|
above charged did not constitute the irinii'iiil
"forgery" within the meaning of tiie Kstra [
dition Treaty or Act ; "2. That it eert;iiiih ijiintl
the crime of forgerv under our law, ainI tlitri'- (
fore the prisoner could not be extrailitcil. In i
Smith, 4 r. R. 21.5. -C. I., ('hand.. A Wiisia i
Oelinition of the term forgery ciuisiilertii. /'-,
Held, that a person ciinxicteil uf forgory M |
uttering forged paper in the I'liiteil .''^tutcs, who j
escapeil to Canada after verdict but luluiv jiiiig-
inent, was liable to be ilelivcrcil ii[i iiiiikr tie I
Ashburton treaty and tiie I'nivineial .statute
passed to give etl'eet mi that truaty. In rr j
W'iirmr, I L. J. X. S. I(i. < '. L '< 'luiinb.-
Hagarty.
Senilde, that the execution of a iteeil lypri;
soner in the name of and reiu'esciitiiig liiimdt I
to be another, may be forgery, if liiiiii' »ith J
intent to <lefraud, even tlmugii lie iuul a|Kiwer|
of attorney from such person, if lie fiainluWiyr
conceal the fact of his being luily such attorney,
and assume to be the priiicijial. h> »' /iVi;i»(iv. j
Oouhf, 20 0. P. 154.
XIX. Fkacixjlfat A.ssi(;.NMK.Nr.
I f ptm an indictment under 22 Vict. c. % fof j
making an assignment of personal pniiicrty to
defraud creditors :— Held, that a inoucy \m\
II' tiirging oraltM-l
iiv iisliii) (U'lwisiyI
(.«/n,,, •>] (>, 1!. S'l.
'h:it tlic (illLMia'asI
itiitf till' i-riiin-iiil
t it I iM'tiunlvisiiiit
I'V consiiliTi'il. /"
.•toil iif t'liiveryo
I'liitc <1 States, wh
■t I'Ut liifi.ivjiulj
im
CRIMINAL LAW.
99»
I • . fill' .'(iincV'H"'' "f ''""^ '" iKTSonnlty Hoiznblf '
' ,xtMiit'i.m iiiiiltT i:<* l» Vi.t. r. M, 1111(1 I
17 • ami, I'lirtluT, tli.it a transfer iiiadi'
• ■ full-
on i"> ^'^
•JOViit. <
jo a ornlitor, wlu) ;i(Xf|>to.l tho Haiiie in full
Lti.fiirtM.ii a.i.l .liH>'li;irK.- of liin .IrU, .11.1 imt
rcii.i.T til.' .iMHiL'ii.'r lf'<'< liiililf mi.li'r tliiH iii.lK't-
„'„.„l KulmnlH, ■!.. 'IwH. /,'-;lliin y. I'oll. r, 10
X\. ril.lNllKEi, ((»! TK\'.I> I I'.'N.)
of -.'8 Viet.
for jiR'Vi'iititi^;
oiirt I'aii oiilv
I'riikTW.'. .
mitMUft- "" ''"' '•""t"''"' *'"-■
filer r.xt.ii:itioii .if ]ir.ii)ui-t.v wi/vn wIkmi it
'' .irs tiiiit tiif HoizTinr wan not autluni/o.l l.v
il . a t- liii.l ill tlii^ ^■■'^''' "" ''"^' '"'■t'* HtatL'.l,
thcv rofiiKi''! to iiiti'ifiTi'. //• r, l',-u)„U,r
IB'-J' '\ .. ... , , I. ■Mil
wan iviiiitti'.l to tin- .ju.ljjc to iinmouiifc tlio iiro-
|u;r JM.IjjiiU'iit, wlii.li w.uiM lir uiioii ttii' s.'.nnil
count only. Ilcl.l, als.i, that tin' auu'n.lni.'ut
«iiH aiitlioi'i/c.l, uuil.'i' :<-' iV .'t.'J \'irt. .'. •_'!>, H.I. 1
ami 71. I >. IK'l.l, .Jso, tli.it, tlir .'oiiit u.iul.l not
lircHniiiL' that the two oount.s rcffi r.'.l t.i th.' Haiui!
ollcnc.', an. I if if wtir n.i, ijuiilicity \miu1i1 not
1h! a ;;r.iiinil of crroi'. Hi'1.1, als.i, no olij.cti.in
that till' iuris.liiti.in ronftriiil hy H'J \ 'X\ \ i.t.
I'. .'I.">, was not slii'wn. f.ir tin' ifioid ami ]w\)i-
nifiit wcic \\\. the form invc. rilu'.l liy th.it a.t.
1 1 I'll I. also, th it tlu' .-^liii 111 s n.itii^i' was sulliriiut,
as .'VJ \ ,'!.'t \'ict. c. ;<.">, .s. •_', it'.iuir.'M it only to
•<tatt tlif ■•naturi' of tlu'ihaix'' |'>'i'f<'i'i'i'.l ayaiust
till' |iiison<'i'. Till' luisomr lia\ in;; ln-in ni'nt to
tiu' iH'iiitt'ntiaiy, a h:ilit'as rorjm>( wa.s unliit'ii to
luini; liiiii uji to I'l'ccivi' thr lu'oin'r juilj;inL'ut.
f ',l,',',,r,.// V, /f,:lilHI. 'X< K'- I' I'"'-
\.\l. KlllN.M TIN'l.
Tl,, iilaintitV i" •'"•'''"• lm%'in^' U'.jn .onnnittcl
to.'iiill'"!' trial on a .'liaix.' "f uiil:iwtully ami
fnnililv ki'l"!M'l''".i'; '""' ^■''*'"« '""■ '^''•'^*"" ^^ '"'■
„Btaiitliiintv. with int.'iit t.i transimrt liii it
„f Cana.la airaiiist his will, wa.s, on x.]w -J-Jth of
Wl
.\i:''KN\.
IiiiK, ISTl!. lii'iui-'ht l.t'lorc the cmuty lUiljjv. hy
wli,im.lie(niwiitt''l t" '"-• tne.l umhr thf ;!'J &
ri.'>.'.iril 'liawn uji miilei'
■ felon-
wlimii.--
.■VJVi.t. 0, ;{."i. In Uw
that slatutt', it was ^-hai'fj;..!.! th.it li.' .In
imislvaiia with.iut authority, foroilily hoi/l ami
,.,„iti'ii>' iiiii' !''• ^^'tlli•' ''!""i'<i:>- ''*;i'-. (without
iillitiii. aiiv inti'iit', aii.l that hi .li.l aflciwai.ls
fcli'"i"ii»l.v'ki'hiai> omi 11. with intent to ..ause
tik Niiil li- t" '"' iiiihkwf'illy transiiortc.l .lut of
(';i>>la ai,aiiist his will, &e. Tin- ju.lgc tixi'.l
til, :::il 111 .Inly for the trial, ami mi that ilay
t:;. 'ii-MiiU'i' ^aiil he was rea.ly, out u]"m the re-
,|tt.'.t "I c.i\iii.-el for the oniwn the trial uas
]>,,tn,iinil till itie loth of .luly, when the [iris-
iii;,r' was fiiniiil uuilty o" I'oth e.uints. An
lii.iu.lnient nl' the imlictnient w;i.s allowed by
itbelii'l''*', I'iiiiiigiiig the name of llufiis I'.ratton
jto.i»s llufiis liratton. In the imtiee re.|uire.l
ifn™tlk'slii'ritVt.i the jmlge by 'A'2k ;W Viet. .-.
|3j, s. 'J, iiiily the charge eontaine.l in the secon.l
iMUiitiit till' iiiilieniieiit was rel'erred to. On .-r-
Irors lit-'iiig lu^sigiK'.l. HuM, that tlie -.ussious hail
Ijunsiliotiim nvor the uttenee, ami so the .■.mnty
Ijuilgi' liail ji'iwer to try it. Ilel.l, als.i, that
Ithi- R'l-.irl was ]irii]ierly framed, in stating the
iffcikei-liar;;e.l ill sue h form as the deii.isitions
lor eviik'ua slmweil it should have been : an. I
Itkt tlio juilge's juris.lieti.in was mit e.mtined to
Itlie trial "illy nf the riiarge as state.l in the emii-
Imitmem. Hulil, also, that the jmlge ha.l power
it li'istii.iiii' tilt' trial, aii'l the record was not
ectivi' ill nut stating the cause of the a.J journ-
nient. Rv '.ti k :« Vict. e. -JO, s. (lit, umler which
tte ili.ivgu was inaile, " Whosoever, without
lawful autlmrity, f.ircilily seizes ami confines. ir
mprisiiii'i any (ither iiersou within Canada, or
liiwjisauy iitber jiersun with intent" to cause
ii'hiieR.in tu he secretly contiiie.l orinii)ris(med
Bt'aiia.1,1, or tu be unlawfully sent or transitoi'teil
ustiift'ana.la against his will, or to be sold or
aptiireil as a slave, is guilty of felony ;- Held,
Tilsiiii, .1., iliss., that the intent reijuired applied
) tlie seiziu'c aiul continemcnt in ( -anada, ;i8 well
stokiiliiapjring; and that the first count there-
Ibrc was ilefee-tive in not stating any intent,
^pnn this gr.nuKl, the judgment wa.s reversed,
■ml uniier ('. S. U. (\ c. 11. S, s. 17, the record
.\ ]iait\ cannot he jiroHeeuted iin.ler 4 k .'»
\'ict. c. 'Jo, for stealing fruit "growiimin ;i gar-
.leii," unless the liou^h .if tli.' tree u|iiin w liieli
the fiiiit is hanging lie within the gai.len : it is
not Miliicieiit''that the mot of the tree lie within
the garden Mi-lhnmltl \. ('unii rnii, 4 <^. H. I.
In an imli'tiui'iit charging the prisoner witll
stealing bank bills, the w.irds "of the imineys,
goods, and chattels" may be rejectjd as surplus-
age, it' [fddi V. Siiniti/i I---, 10 t^. 11. ."-t-J.
An iudictnieiit for breaking int.. a church .-in. I
stealing vestments, \c., there, ilescriliing the
j;.io.ls stolen as the property of "the parishioners
of the said church :" Held, bad. They must
be .iveiied To belong to some pei'son or )ii'rsoUs
imlivi.liially. Such a defect is ii.it within the
IS Vict., c. '.t'J, ss. 'J."). •_'li, Hniiini V. O'Hrliii,
I. •{<,>. I!. 4-M\.
The piisuiier w.is imlicte.l for ste:'.ling the
cattle of 1!. M. At the trial It. .M. gave evi-
.leiice thiit he was nineteen years .if age ; that
bis father w.is dead, and the goods were bought
with the ]iioceeds(if his father's estate ; that his
mother was adiiiinistratriN. ami that th-' witness
maiiagc.l the propertN, and buught the cattle in
i|nestion. (hi .ibjcction taken, the indictment
was aiiienileil, by stating the goo.ls t.i be the
pr.ijierty of the mother, and no further evi.lence
of her a.lniinistrative eharacter was given, the
I 'ouiity ( 'ourt ju.lge h.il.ling the cvi.leiice .if It.
M. siiHi.'i.nt. ami not leaving any iiucstion a.s to
the pr.']ierty to the jury : On a ease reserved,
Held. I. That there was ample evidence of pos-
session in It. M. to suiiii.irt tlie in.lictmeiit with-
out anicmliiK'nt. •_'. That the judge had power
to anien.l, umler ( '. ,•<. ( '. c. ill), s. 78. 3. That
the convicti.in on the ameiide.l in.lictinent could
not be .sustained, there tieing no evidence of the
m.itlier's rejireseiitative character, nor any ((Ues-
tion of ownership by her, apart frmn such eha-
racter, left to the jury, liiii'iiin v. Jdcl.-.tiiii, 10
C. V. ■2S0.
A .let'emlant imlicted tor misdemeanour in
obtaining monev iin.ler false pretences cannot,
undei- V. S. (".'c. !»<», s. ()2, be found guilty of
larceny. That clause only authorizes a convic-
tion for the misdemeanour, though the facts
prove.l amount to larceny. Where a defendant
on such an indictment had been found guilty of
larceny : - Held, that the court had no power
1
■ll
i'
t;
•Sft
CKIMINAl, LAW.
!(
Hiiilur ('. S. I'. ('. c. III!, H, X tnilnv.t tin- voi
tlict to 1m' fiitcl'cil lis iiiu' iif "),'illltv." Wltiuiiit
till' iliLlitioiial wnl'iU. UniUiii \ h'l'iii'l, '1\ I,'.
If. .V.'ll.
Ili'jil, tliilt ilrlrliilalit, \tliii \\il> illilii'trii tin'
titlnc |ii'rti'lli'('N, riiiilil ili>t, nil till' iliilirtlliilit illlil
uviili'iii'i* ill tliiH ciiHi', III' cum ictril ot' hiMciiy,
iiiiilcr r. S. ('. .'. !>!>, «. (W. (/iiii'ii, MS til Mil'
nii'iiiiiiiLf III tlijit rlmiHi'. I'liiiiiii \ ll'i'lii. |;H',
v. ()07.
Dt'tVliiliilit hi'lil the title III' ii'l'tniii liiml Li'lmi'^-
iii^' t(i mil' A., wliii livcil ill tin' I'niti'il Stiiti'w.
A. i'\iliaii;^i'il it with II. (till- |iiimi'tiitii|') I'mI-
iitlii'i' Liiiil, Mini ji^.ivi' an iii'ilcr i<n ili'liinlaiit ti>
niiivcy til H. W'lirii II. ini'.siiiti'ii tlii.-i lUilcr
ilct'i'Milant ri'iHi'Mi'iiti'il that a I'laiiii having ixrii
iiiailc axaiiiMt liini tor A.'n ililits, hi' liail .•iworii
that the I'ann liiliiii^cil t<> hiinsrlr \ anil ti> ki'i |i
up the a|i|ir,iianci' nf tliis liiiii^' true, it wa*
ii^l'ci'ii lirtwi'in II. ami ih fiinlant that a ii'i'taiii
sum slniiilil III' |i.iiil ii\'i'i' liy M. ti> ihli'inlant I'li
ri'it'ivinj,' the ileeil. as fur the jairihase inuney,
ami iniini'iliatels retiiriieil. II. Iiurruweil ■']'7(M)
■J. 'I'liat it w.'is a i|UeHtiii|i for the |iii\ t.i
whether the i untraet of tliu iuin|iaiiy m.^T
ilelivir to v.. anil S.. ami tlie |aii(M liy j,', ,''
imiliey therefore \Ml« |iro|>erl> lai<l \n \\\^■^^^^\^.
iiii'iit. :i. That if the iimli rtakiii(,'\\;i„ ti,,l(.li,.
I the iiioinj to K \ .s. the |inhiiii( r wa^ tln'
i of the eoiii|'iiiiy for that |iiir)i.«e 4
iiioiity I" |iro|.erty, of whiih a |ieiM,ii ,,111 1,,
) liailee so as to make luin yiolty of fi'ii.ii\ if;*
1 aii|irii|.riates it to Ins own iisi . Tia' /uj,. ,'
i haviiiK heeii i'i'o|n riy siilnnittnl to tlie jury!
these |iiiiiits, a new trial wai oiilirnj ui t*^
[ eolirt lieloM. /'ijiiKi \. ,l/((.-...f ,/, |;i('. |' (m
In '111 ;i iiivi,
ici;.l
'''.It
Defciiilaiit liiieil a ]iair of liorsi'*
■•talile to yd to a iiartienl.ir jilace, ai
alisi'iiiiileil with them, The jiirv f
"'tlTM.iriU
■ . iiiil tliiit i
lirst he iliil not inteml to steal, l>iit
ai i'oni|ili-iheil tli
iiji liis
Hehl,
'.(•J. .*. r>.-
... lUllDi
lijeet lit hiriiii;, h,. tlinii,„i,i,
iniml to I iiinelt tliein to hi,> chi, n,,, ,
that lie was a liailee, « itlnii ( ' .S, (• ,
ami |iro|n.rly lonvu'teii on aii imiiVt
meiit tor lal•l■ell^ ni tlie nrilniais fiim /',.,;.
V, Tin ill n, iVt (,i, 1;. I 'JO.
fur the iiiir lose, anil f lie\ , w itli II. s liroilnraliil I ,,,, , ,
U' ', . i- '■. '11' 1 ti ' le prisoner was < oiivietei oi nn muiiiIIi' .1
lei's, went to a solieitor s olliee, where tin' . 1 i i 1 n , mia»Mlinat
11 I 11 11' I < teliilitlliL to stea tile ''iiiii .-^ ot oIh' I i'. 1,
leeil w,is ilraw n, with a eoiisiileiiitlon ev.iuds.seii , ' 1 .1 ^ . , ■ ^ ' ''■ I!
' a|>]iiareil tliat
ilrawn, with a eonsnleiiitlon ev.|ii(is.sei
of s;i, I 'i(>. The .•57(M» w.is haiiileil to ch iVmlaiit.
anil eoiinteil o\er hy him as if it were S'J.IHH), |
;iml notes ;^iveii hy II. aiul liis lnother for the
lialanee. Sl.l.'iO. Iiel'emlant, iiisteail of n turn- I
iiij,' the luoney ami notes, ran aw.iy witli l^iieiii :
Semlile, that ii|iiin these faets an iinlii'timiit for
lareeiiy ini^'ht ha\e lieeii siistailieil, if the jury
foiiiiil that liet'eiulaiit \v lien he olitailleil jHisseHHioil \
of the iirojicrtv inteinleil to steal it. /•'•■/iii" \.
h'iniHj, •2\ <,». v.. ,vj:{.
The iMililie interest luiiiji eomerniil, tin priii- ,
riple of I'stoppi'i woiilil not apply, so ,i.-( to pru- ,
vent II. from assei'tinj,' that tlii' payineiit whieli 1
he proffsseil to make in gooil faith was in faet
only a pretenee. //-.
In .'III (it'tinii against a earrier for non-ililiv ei\
of a p;u'ka,L;e of money, ilefeinliiiit pleaileil not
yuilty. The pl.iiiititl's' witness, their ai^elit,
proveil that within a week after iiis ilelivi.rinj,'
the ])ai'i'el til ik't'emlant he foiiinl that he hail
ahseoiiileil : that he then siieil out an ,ittaeh-
inent ag.iinst him as an ahseomlini; ilel.tor ; ami
that, as he helieveil, ilefemlant was at the time
of the trial in j;aol, ehargeil with sti'aliiiii; the
nioiiey : Held, that this e\ iileliei; siitiii iently |
slieweil a felony, as ilofeiulant upon it inii;lit, as
a bailee, he properly eunvieteil of lareeny, iinilei' 1
( !. S. < '. e. !)2, H. "1,") ; ami a nonsuit was orileieil.
--Ht'igarty, ,1., iliss. I.iriiiiist,,i,i- 1 1 •il. v. Mn^siii,
L'.i Q. I!. I .-)(;.
rpon an imlietiiieiit fur ste.iliiii,' inoiuy, the
imiperty of eertain persons (eoinposing the tirm '
of till) Aineriean hl.xpross ( 'o. ), it appeared tiiat
the agent of the eompany in ,St. M.'iry's ileliveieil !
two parcels eontiiining ,^S88, w liieh had lieeii I
sent liy one K., addres.sed to K. it 1^. at '"'t. I
Mary's, to the prisoner to deliver, and that lie ,
appropriated them to his own use. On the trial
in the (Quarter Sessions the euiuiHul for the ,
crown asked the agent of the eompany when
their (the eoinpany's) liability ceased, which was
objected to by the prisoner's counsel : Hehl. 1.
That the enipiiry anned at was material to shew
how far the company had undertaken to deliver,
and therefore when their duty as carriers cea.'sed,
id nolle out with mil' A. ^
Cooksville. and exaillilled .1. (I.'s .-.tnli' witji 1
view of luliliini; it, and th,it afteiwanli .\. m,,,
three others. Iia\iii.u ariangnl tin ^ laiiii- uitl;
the prisoner, started fi 1 Tuioiito, ami 1,1,^1,
the .ittemiit, but wen- ilistinlieil after oin. l,,.,,!
got into the stole tlirou..;li a panel taken mit in
them. I'ri.-.uiier .-.aw tlnin oil' fi'i.m Tonnitn, lait
dill not go himself : Held, tliiit as tliii.,i'ai li'ujli
engagi^il were ■guilty of the attiinpt to steal, tl',
prisoner, umler 'JT d I'S \'ict. 1 . Ill, >, ;i, hii,s|,i„
pi'l'ly lolivieted, l!''iiinn \ . /','.«/;..,;,/,, 'JCii^ |; 15.1
Held, that the [lolite . onrt ,,f tlie ritv ,i!
Toronto IS a court of jiistire, w itliin li'.W .'U \'i,t
c. '1\, s. I,S. and that the prismiii was |.rii|Mrl\
coiivited of stealing an infoMiiatioii I liil in that
I'oiirt. Hfijii,,! \. .'/"■■"•/, '.'■_' ('. I'. '.'tc.
Wlniian indictment 1 oiitaiiih nne luuiit for
larceny, and aihgatiuiis in tiie nutiire nf coiiiih
fur prc\ious coiisictions for iiiisileiiicaiiniirs, :ii!tl
the jiri-soiier. ln-iiig arraigneil '.ii the wlu.li' ;ii-
ilictinent, plead.-, "not -uiity," ami i.-. triril at
a siil)Sei(lient .\.ssi/.e. when the luiiiit fur laiuiiv
only is read to the jury : Held, nu .rrei, iwtlir
prisoner wasoidy Lii\en in cliai'm' on tli'- laivfry
count. //'.
It is not a iiiisjoiiiiier of counts to .iiiil allcj-i'
tioiis of a pre\i<)us conviction lor iiiisik'iiR'aiinur.
as counts, to a I'oiint for laneii\ ; ami tlii'i|M
tion. ;it all events, can only lie raised la lii'ii.i:/-
rer. or motion to ipiash tin- inilntiiifiif, iiiuiiTK
it ."13 A'ii't. e. •_'•». s. ;{•_'; ,inil vliore tiiiri' i»
been ;i demurrer to siieii aileg,itiiiiia, as iasiiiii-
eieiit in law . ;iiid juilgineiit in favour of tke
IM'isoiuM', but he is eonvirted on tin- felony I'lmnt,
the(!i)Urtof I'lri'orwill not ri'opeii tin; matter
on the suggestion that tlie'i' is inislniniliT iif
CI Hints. //).
All imlictiiielit ilescribini, .01 olli ini' within .'S
& .■{.'{ Vict. c. I'l, s. 18, as feloniously .stealii.jaii
iiifornuition taken in a [uliii- ■ onrt. i> siirtinciit
after verdict. J li.
The convictit/ii stated that ".lnsi'iili ('a.-wl
hail on his i>reinises a ipiaiitity of cli(i]iiie'' «i«'ili
to wit, about half a cord, beloiij;iiii; to Thmiw
but that the (juestiou as put was objectionable. ' Kulton. which said Thomas stiti's was taken inii
it iiiiiiiwlullv at
il nil,. .] {',' li
It with Miic A, t(i
!.':« i^tiirc with 1
tcrwariU A. umi
tin M hiiiii' with
I'olitii. :iliil iiiiiiIp
I'll ;ilti'r (1110 hnii
iiu'l tiiki'ii iiiit \i\
I'i'iii 'riii'iiiitu, liut
t ilh UllP.sl'illtlUllK ]
i-iii|il ti' ^tcal, til'
I'.t, X. '.I, Wil.< |.l'n
-./..A, •.•('. i,t.l'.,|V:
•t lit till' I'ltv n!
tliiii ;!•.', 'v.X'tVid
nil was |iriiiKrK
itinii I till II! tli;ii
iih iiiu' (duni :oi
ir.ittifc lit cmiiits
kili'iiiiaiiiiiii'K, iiii'i
anil !.■< li'iril at
Iri.uiit I'lirliirai!)
nil i-lTliV, Mtlii'
liiii-ii-il I'V ili'iiii.i
itim-ut,'iniiiiTK
.itiHiii^, Afvm
,t„|,.n III III"
fill Ml N A I. LA.\V
a2«
hiiii. am
I wliicli tiii'l .li'>t«iili i;iiiilcl
lllCi
iitiMai ti-nly iui'oiiiil- lof itH |
IIIHMI-HHKIII
,,,1,1 that till' .■onvi.'tioii wii
:t;t Viit.
|i|ilirH til t
\n li.'kil, lii'caiiM)' 'A'l
1.'.
rt'i'x il
M. 'jr>, lllllIlT wllicll itWllH IllUill
ttiiflii'il to tlic I'ri'clmlil, Mill t
trnH mill
il is III)
Ml"
itllll'
till
I,, into .•oiilwooil, itllll Ik'iivusi' conl-
t ••tilt' wlitilf III' imy piirt "I it trt'ti"
tiituti' A'l !/('"" V. I'liHii'ill, 'X\ (}. U.
;io;i.
!,■ tliiittlif i(iiiviftiiiii«ivtti»l»i>l'inl. •"'■""t
Iliit
iilli'(,'iiiK
„l twrlltv-tl^
III till' 1'""^ ''
wv.'lity livi
till
t tlif |in>pt'i'ty tiiUiii WiiH lit' till
,. .•(■iitst lit till' IfiiHt ; till' tliii ttiiiii
tic.ii, tliiit tilt' ilttt'iHliiiit filmiilil |iii>
lt,,S till' Hillll will
lillj. tllilt It W ilH I
liiiiliii»!
if tllilt Villllt'.
Ill, tint lu'iiii; It
St'iii
,)(., tliitt tilt' I'tiiivii'tioii wiiltiiifittly wtiitt'tl
tlmtllillU'li'llt W JIM III IMlHHOHHItin t.l tho WIMH
1. //..
Till' inisiiinT
Kx|irf'
nivi'i'
., In'iii^'tliu iini'i't lit' tlif Aiiuiiriiii
i.viiv, ill tilt' Stiiti' tif llliiiiiin, ft
I ('ll|M|
Kiiiii lit iiii'iit'y "
llicll Itllll lit'fli ciilli'i'tfil
At till' l^iiiii tt'f SfUHiniiH tlif iiriwiKi'i' Nv .ii< I'liinitl
>{ililty 1)11 nil iiiilii'tiiit'iit I'liiir^iiiK tliiit
.1 It
l(.
til
I"
^lll', tut,
il IIimI
I 111 luir liiily tilt' «,»in'iii tlti'ii liiiii,, titiliiw-
fully iliil iiiiikf till iiftt
iiilt, iiiiil Itiiit, till <iiiil It.
liil iH'iit itllll illtii it, \Mtli iiili'iit liiiii. Iliimiiil
It., filiiitintt.xly. witfiilly, iiiiil 111 111 r miili' •' iili'i''-
tlliill;,'lit, til UtII mill liilirilrt, iiliil iillf I- \viiilt««
ttl till' Silill It, tlltlllllll. 111 till' Jillilt .l,llllll>{l' i>f
till' .Hiiiil It., iii,',iiitMt till' fiiiiii iif till' -itatuti' ill
Mlli'll I'ilMf lllllili' illlil |iriiviilril, illlil 11.:^ illlHt tl
Af.
lint u'iiH uilili'il ft>r I iiiiiiiitiii
ii.iHiiiilt. Till' I'viili'iiii' .tlii^wi'il an iitti-niiit ti>
iiiiiiiliT, lint it WiiM iiiiivi'il ill iiiicut 111 iiiil>;iiii'iit
tllilt tlir iiiiirt li.ul nut jurisilirtiiin. Inr tliiil it
u;iH a iiipitiil irinii', iiihIitC. S. C. r. '.M, h. 5;
lli'iil, tllilt till' iiiilii ttiii'iit iliil nut I liai'L<;i) n
i'ii|iitiil olli'tiii' niiilrr tllilt Ml rtiiiii, itiir ;tit ntl'ini'i'
aj,'aiiist liny stilt iitf, Imt tliiit tin- imiviitiim
nii>;lit III' .siistiiiiii'il it..* I'lir iin iiHiAiiiilt at I'miiinitii
/,
'liilniii V.
M,-h
''I'll,
•Jt» Q. II. ;i44.
■ tllrlll liif it «•"■
ilollli'l', itllll (tilt it lit
tu till
tliiir IiihiUh iif its
siiiv, lull itiiiiif II" ''"••y '"
riwiiit iiH it wiis Ills iltitv tl. ill', illlil ittti'i'warilH
..ijnil.'.l wiH" it t" ^'''•■* l"'-^''""'''. "••;■'''■ '":
wu. iimst.il: Illlil, tllilt 111' wii« Kiiilty i.t
1 ' „v ami wif* iiii'l'i'i'ly I'liiviiti'il liiTi' itiiiii'i-
;i"({;i;tviit. i-:!!. '^^ "-. '*' /i*-.'/'"" \. //"'
'«"„;/, rt (^ !'•■ <!'«•
\XIV. .M Mil II" '^IV PKSIHiiMM. l!lriil!l>N.
lU'lil, tllilt imiliiioiisly tli'struyiii;,' iin iitfiniiia
tioii iir rftiii'tl of tlic iiolico court i.i a tt'lony
(litliiii :\'l > ■'•' 'iiit- ^- -'' "' '**• /'''/"■"" ^■•
.l/„,,i«, 'J'J ( . i'. -K>.
X.W. Mkn.vik.'s \sii 'I'miKMs.
I. '/'//( Ofnirr.
IVniiinliiin witli iiii'iiiii'os money iirtiially iliii'.
Mint 11 iluliiiiliil with iiiti'iit to steal, iiltili r 4 it
.'iViot. 0. 'J.'), S. II. /{lljillil V. .Ilihu^nll. 14 (J.
R ,Vi!l,
'rill' ;)•-' I'd WW Viit. I'. --'I, H. 4:t, n.. niaki'> it a
fikny to si'iiil "any lettof ilenianiliiig of any
liTsiiii with iiicMaceH, anil nitltoiitaiiy ri'iisonalili'
"riiriiliiililecaiiac," any inoiify, iVc. : lli'lil, tliiit I
thr wonls, "withiitit roaMniialilo or iirnlialili- 1
'iiiso,'' iiiijily til the inoiii'y ili-iiiaiiili'il, ami not
•i the iKiiisatiiiii thii'iitent'il to lie niaile. liiijiiiii \
'., .I/(W(/N, •J4t.'. 1'. r.s.
.WVI. Ml iiiiK.u .\NI> M.vNsi..\n.iiiKi;.
I. Till- Dfiiri".
.Murikr ciiimiiittL'tl in tlio Uuitoil Stato.s liy a
>hivc til iHi'Vi'iit L'iiiiture Kxtrailitinn. In /•(
\.\wkrmu '20 (i. 15. 124.
Held, that a wiirrmit of coinniitiiiuiit iastieil by
. il magistriite uiiik'r the Ashliurtoii treaty iiml
our stiitiite, which uhoiI the wonlN, "iliil wilfully,
I maliciimsly, ami fehmiously atah anil kill," ami
j iimitteil the woi'ils "iiiuriler," ami "with nialiee
I aforethought," ami concludcil by instructing the
I gaoler to "there safely koeit liiiii, the prisoner,
I until he shall he thciiue ilelivereil by due course
[of liiw,"ili(liiot eoine within the provisions of
j the treaty or statute, anil was eonaeiiuently ile-
\ fective. h w Amkruuii, 1 1 V. P. H.
Prisoner being imlii'teil for the niuuli r nf nut'
II., the pnmiidil witiiiN-^ fm the i!'ii\Mt .^^tateil
that the iriiiif was i iiiiiiiiil.ti'il on the 1st of
|)i ri'inbir, l,Si">'.>. on a briilni- over Ihe iivi r Kuii,
itllll that the lirisoiUT iiinl iilie S. (wltu hail been
previously ti'iei! i'l"'' iiii|tiitteil) threw H. over
the pi'iiijiet iif the ''H' into the rivri. The
eoiinsil lor the |iiiHoiii then prnpineil to |iiiivn
by one I >. tluit S. wai at his plaei', titty miles
nil', on that evening, but the learni'il jinlge
rejei'tiil the i ■ li nee, •: ying tie , s. niij.|it be
liilleil, iiinl i ntriiilieteil ni'n.it be contirnieil
by other testiliioiiy. ^. w ,i.h eitlleil. anil swore
that ho w,is iiiil [irc'-iil it the tiliu , but he not
being loiitiiiilieteil I >. w ...oiot eKHinineil : lletii,
thit till' pii'.sfiui' i.f ■>. was a fiiet liiatii i.il to
the eiiiiiiiiy. illlil thill, I', therefore sinnilil have
been ailiiiilteil w lieu ti'i. ■ 'eil ; Illlil, tln' prisii.e'i
having bien I'liiiinl i.iiilty, it iiev trial was
oiilfi'eil. Htii'i'i \. liri'ii'd. '1\ 1,1. 1>. ;Wt>.
.A warrant ihargiug flat tlii' ]irisi'iiirs " iliil
feliiliiolisly .lioot itt. i"ti.. with intent, Ae,. to
kill itllll niiii'iler, " siitUiiintly ihargeil an ■■as-
sault with intent to eoiiiiiiit nniriler." the winits
iisi'il in the .Ashbiirtiiii tii 't\ ainl statute.
I!'[i,mi\. Ii,,inrl„l.,\ \\ li.'JSl.' ('. I., rhanib.
I »r!iper.
The prisoiu'i'. Itaviiig bei'ii inilieteil with two
others aii|nitteil, was rmiviiteil of the mtiriler
of one II., wliosi boily was loiiiiil in ,i tiehl ail ■
joining the railwiiy, on Moiuliiy, the lOth .Aiiril.
apliaieiitly abiiitt tlirei' ilays after ih ■illi. wliieli,
Itllll riciiliy been citiiseil by viulenii. IMie M.,
the thief witness for the irown, sw me that on
the l''riilit\ night pre\ioiisiy, he IteanI tries in
this tielil, a ipiiirter of a iiiili' froin hi,^ limisi', anil
that he saw three peisoits walk uniekly piist hiH
house from that ilirertion, wlioni lir leeognizeiJ
as the prisoner iiinl two of his .sou.n He also
stateil that on the following morning he saw the
pri.soner walking along the railwiiy iiiul stopping
near where the boily was afterwariis foiiiul, his
ntauner being strange anil exeiteil. .At the iior-
oner's im|Uest, lielil six inonths before, this wit-
ness hail ileelareil hiinself unable to iileiitify thi)
perr.'iis seen by him. ami hail not meittioneil
seeing the prisoner on Saturilay. On motion for
a new trial, on the grouml, among others, of
surprise at these iliscrepaiieies, the eoiirt refused
to interfere. J\'i;iin<i v. /liitiiiltinKf nl.. Kit!. V.
:m. See Nfiiiim'i v. Slanin, 17 C 1*. 20.'>.
I, -IIP,- J,. II J
927
CRIMINAL LAW.
028
m
I
I
J!*
■I
P. (the prisoner) and I), {deceased) Iteiiig
brotliors, wore in the house of the latter, both a
little intoxicated. D. struck his wife, and on
P. interfering a scufHe began. While it was
going on [). asked foi' tlie axe, and, when they
let go, P. went out for it and gave it to him,
asking wliat he wanted with it. 1). raised it as
if to strike P :ind they again closed, wlien the
•wife hid the ..xe. Wliile the scutlle was going
on D. struck P. twice. On getting up, P. kicked
him on the side and ann, and then ran across
the garden, got over a brush fence into tlie road,
and dared I), tlircc times to come on, saying the
last time that lie would not go back tlie same
way as lie came. I ). seized a stick from near
the stove, whicli had liecn used to poke the tire
with, and ran towards P. In trying to cross
the fence he fell to his knees, and P. came for-
ward and took tlie stick out of his liand. He
got uj), and as he went over the fence P. stnick
him on the head witli it. Tlie wife entreated
him to spare her husband, but he struck him a
second time, when he fell, and again while on
the giv'iund, from which he never rose. P., in
answei' to the wife, said 1). was not killed, and
refusc'l to take liim in, saying, " Let him lie
there till he comes to himself :"' Held, that the
evidence Avas sufficient to go to the jury to
establish a charge of murder ; that if the death
had lieeii caused by the kicks received before
leaving the house, the circumstances would have
repelled the conclusion of malice : but that
whether vvliat took place at the fence was under
a continuance of the lieat and jiassion created
by the jirevious <niarrel, was, uinlcr the circum-
Htaiices, a (picstioii for the jury. A conviction
for murder was therefore uplield. and a new
trial refused. Jt'>;i!iiit v. Mr/)„iri/', •_'.'><..>. U. 108.
The prisoner, ( '., w;is indicte<l for aiding and
abetting one M. in a murder, of wliich M. was
convicted. It ajipearcd that about si.\ in the
evening the deceased was with P. and his wife
on tlie river bank at .\inlierstburg, standing
near .i jiile of wood. She saw M. standing
behind the pile, who on deceased going uji to
him struck deceased with a stick, of which he
died ; deceased r;in, wlien two other mcu sprang
out and followeil him. but in a few seconds two
of them n^turncd and assaulted her and her
husband. She cnuKl not iilcntify the prisoner.
Two other witnesses saw the Idow struck and
ideiititicd M. ; ami luie witness, H. , swore that
about six on tliat evening deceasetl left his oHice
with It. and his wife, and that about twenty
minutes after he saw tlie pris(Uier, with M. and
anotlier, go into the vacant lot where the wood
pile was, M. having a stick in his liand, ;ind
heard ,M. say to the others, " Let us go for liim. "
It was alsd pmveil liy others that the three
were together before the atl'ray, and in a saloon
together about nine o'clock afterwards : - Held,
that there was not sulHcient evidence to warrant
the jirisoner's convictiiui, for there was no direct
proof that lie was present when the blow w.is
struck, and no evidence whatever that he and
the other.s were together with any common un-
lawful purpose : an<l the words spoken were in
themselves unimportant. Hmitia v. ('iirf/n/, 27
Q. B. ()I3.
On an indictment for murder in the statutory
form, not charging an assault, the prisoner,
under H'2 k Xi Vict. c. 20, s. 51, cannot lie con-
victed of an a.s8nult ; and his acijuittal of the
felony is therefore no bar to a subst'(|iu'iitin(lw
nient for the assault. Hi'i/iDa v. Sniiil,, -^ o p
5r)2. See, also, Kq/innv. IJiiKiiiKin tim/, Ciinr
22 Q. B. 283 ; /ie(jlna v. (/aw^.s, 22 ('. p. ij-,. '
Per A. Wilson, J . -In this ease tlieic i (miii i^^.^
been no coiivieti<m for the assault, liwm.si; tk
evidence upon the trial for murdei- .-^lnwoil that
it did not conduce to the deatli. It, ii'mn
Smith, M Q. B. .5.V.>.
I 2. Di/lnn Dccluratiiiiis.
I On an indictment for nianslanghtcr, it ai.
I pcared that deceased ilieil aliinit iiiiiliii,.ln
: December Kith, from the elicct of sc\ cif |irmsn
i alleged to have been caused by the |ii'i.s(iini-, |u,
i husband, striking her with a liglifccl (.nal m
j lamp. Immediately after receiving the iiijuiifj
j which was lietween eight and nine in tiiu evi*
ing of the ITrth December, she saiil to the lirii-
I oner .and to a female relative that sliu w:i.«(lviiio
I Four jihysicians, w lio saw her alino.-it at iiiitt,
I declared that there was no ho]ie nt ixTcnm
I One of them who had remained with initiu
I three, a. m., on the 17th, returned in thu fiiri-
noon of that ilay. He then told liui- that sIk
would die, and asked her if she « a.s afniiil to
die ; .she said " >vo, " ai>d asked liiiii ii sJic was
! <lying then; he .answered, '■ Yes, ymi are," anil
I she replierl, "(!od help me." He .said fnim tht
1 nianner of her answering he bclicvcil .siic, ilidiialit
j she was dying. She then made the .statfiiitiit
j which was put in evidence. The doctur a,sW
! her how she had caught tire ; she said, "Aitliiir'
'(tlie prisoner) " kiioekeil me (hiwii with the |
jlamp. " He then asked if the prisoner had i
I threateneil her before he did it. and she .siiii
: •' Yes. " .She ilied about twelve hoiu's alter this,
; from the effect of her injuries. The parish
! clergyman, who was with her fniiii six tn iiiiiu
i o'clock on the morning of the 17th, said \kaA-
dres.seil her .as a woman whom he thduylit was
I dying, and that she understond itinthatwav:
I that he recommended lii^r to trust in ('hri,<tM
her luily hope, and she saiil " ^'l's. Ihidktn
i him :" Held, that this stateiiKMit v.as admissi-
I ble as a dying declaration ; and that it maileiio
! dillerence that the second answer wasj;iveiitiia
I leading (juestion. Itajhid v. Sm'illi, 'J,'! ('. 1'. lili
The jirisoners were charged with the miinier
of one P>., eau.seil ))y attempting, hy the use n!
an instrument, to procure aliortion. The ilf
ceased die<l on the 2Stli Deccndiei, 1S74. (In
■ the 24tli she ma<le a stateiiieiit euiiiiiieiiiiiig;
I " I am very ill. 1 have no hope wliateverelit-
I covcry. 1 expect to die." She then nirratcil
I the facts, and added : "If I di( in thi.s siekiifss
1 believe it will have been caused hy the diitri-
ti(Uis performed on mc by Dr. Sparhani, at tk
instigation of William ( i'rcavcs. * * 1 make
these statements in all truth, with the itaruf
(idil before my eyes, for I liiinly believe tb,it I
am dying." On the 2()tli she was aj;ain exam-
ined, and the previous statement read tuher. >\m
ccuitirmed its truth in every res|ieet, and .ii'iW
that she then felt she was in the preseme "l
(iod, and had no liojie of recovery of any kiiiiUt
the time ; and her attention being called to the
expression "If I die, "she said, " 1 had iMuldulit
whatever that I was dying, and I felt that
I was dying, and did not by the furm nt the ex-
pression mean to doubt in any way that 1 »*
dying," Ac. : -Held, that both stateineiits wre
Iir tlioui'llt wa*
929
CRIMINAL LAW.
930
adraissiblt : tliat the mere use of tlie words,
" If 1 (lie " would not alone defeat the emphatic
declaration of abandonment of all liope made on
the Siiint' oci'asion ; and that the aeeond declara-
tion was receivable in order to explain the first.
Heifniuw S/i(ir/i<uiinnil({r<-(tws, C. P. E. T. 1875.
N(it yet re (lorted.
X.Wil. (•btainin<; Monkv win/ Intknt to
Dekk.mi).
due I'., being ])OBt-master at Berlin, trans-
initteil to <lefcnilaiit at Toronto several j)ost-
()lKi:e (irdors ji.ivable there, which defendant pre-
sented and got cashed, but it apjieared after-
wards tiiat the moneys thus obtained )ia<l never
l)een received by |). for defendant, tind that
frauds tit a large extent had been thus com-
mitted. Uefoiidant having been convicted upon
lui inciictment for (d)taining from the Queen these
Slims, of the moneys and pro})erty of the Queen,
with intent to defraud : — Held, that the indict-
ment was good : that the oCith section of the
I'nst OlKce Act, 0. S. ('., c. ,S1, was not appli-
cilile to the case : that the money was properly
clwri'ed to I>e the moncj' of tlie ',!ueen, not of
the ixistiiiaster ; and that it was unnecessary
to allege ;ui intent to defraud any particular
jiorson. Rc'/uia v. Dtssimtr, '1\ Q. B. 231.
Remarks as to the extensive iiatui'e of the
movision on which the indictment was framed,
C. S. ('. >■. 93, a. 73. Jl>.
XXVlll. rKlMlKV.
The swearing falsely by a voter, at an elccti<iii
of aldermen or common councilmen for the city
(if Timmto, that he is tiie ])erson ilescribed in
tk list of voters entitled to vote, is not perjury
by any ex(iress enactment ; and a plea of justiii-
atmn to a dcidaration on the case f(U' imputing
[itrjiiry to (daintitf, on the ground of such false
r/aring, is had on demurrer. TI«juhi^ v. Plti.lt,
IQ.B. -^17.
Tlif L'lerk of a I'ivision Court, acting under
13 it 14 Vict. c. 53, s. IOl', issue«l an interi)Ica<Ier
siinimiius of his own autli<u'ity, without tlie
liailili's rei|Uest. Both parties attended before
a liarrister apjioiiitcd by the judge of tlie court,
who was ill, and an oriler was made. The judge
afterwards ordered anew trial, which took place.
I The ilelendaiit was convicted for perjury coni-
; mitted uiwu that occasion : -Held, that both
liarties having ajipeared, the proceedings in the
I first instance could not bo considered void for
I want of a previoiiH apidicatioii by the bailid' ;
1 but, Held, also, that it was not eomjietent for
; the judge to order siith new trial, the first order
lieing made final by the statute ; and that the
conviction was tiierefoie illegal, linuim v. Jhdii,
'l3Q. H.m
Where It appeiu-s on the face of the indict-
ment that the stattment complained of was
I made Wfore a justice of the peace in preferring
j a charge ()f larceny committed wit^'in his juria-
, motion, it is uimeces.siry to allege expressly that
he had authority to a< 1 minister the oath, licninn
i ^ < ''«i«;/mH, 19 Q. R. 364.
The court will not (piash the indictment be-
cause there IS a variance in the sjiecific charge of
1 P«fJ"ij contained in the infonnatiou and that
59
in the indictment, provided the indictment sets
forth the substantial charge ccnitaineil in the in-
formation. Hiii'ma V. HrtKiil, 14 C. 1'. 1(>8.
The prisoner being indicted for perjury in
giving evidence npcui a charge of felony against
one K. (i., it ajipeared th.it the felony was com-
mitted in the county of .Middlesex, if at iill.
The justices before whom the examination took
place entertained the charge and examined the
witnesses within the city of London. 1 lefen-
fendant's counsel objected at the trial that the
justices, being justices of the county of Mid<lle-
sex, had no juriadicti<ui, sitting in Ijondon, to
examine into an offence committed outside the
city limits ilfeld, that the conviction was
illegal. L'xjiiKi v. Ron; 14 i'. 1*. 307.
A joint aiKdavit made by the defendant ami
one I)., stated ' ' ' "Each fi>r himself maketh
oath and .saith that, &c. ; and that he, this depo-
nent, is not aware of any adverse claim to or
occupation of said lot. '' The defendant having
been convicted of perjury (Ui this latter allega-
tion : Held, that there was neither ambiguity
nor dfiulit in wliat each defendant saiil, but that
each in .substance stated that he was not aware
of any adverse claim to or occupation of said hit.
/.'.-/(■»" v. AiL-iiiyoii, 17 C. P. •2\)o.
To sustain a conviction for perjury in an affi-
davit, it is not necessiry that the jurat should
contain the place .-it whicli the attidavit is sworn,
for the perjury is connnitted by the taking of the
oath. aii<l the jurat, so far as that is concerned, is
not material. Jh.
There was no statement in the affidavit as to
where it hail been sworn, either in the jurat or
clsewiiere, except the marginal venue, " Canada,
County of Orey, to wit i" but the contents
showed that it related to lands in that county,
and it was proved that defendant subscribed the
artidavit : that the party before whom it pur-
jiiirteil to have been sworn was a justice of the
\i.-Mc for that county, and had resided there for
some ye.irs : that the athdavithad lieeii received
through the iiost-olhct', by the agent of the
crown lauds there;, by wliom it was forwarded
i to the coiiiniissioner of crown lands ; and that
' siiliseiiuently a jiatcnt issued to th<^ party on
! whose lielialf the atlidavit had been made : -
Held, evidence from which the jury might infer
that tlic affidavit was sworn in tiic County of
<irey. ///.
Helil, also, that if the atlidavit was swm-ii in
the county of (ire, . the proof of the swearing
by the justice of the jieace, and the taking of
the oath by the defendant, were made out by
proving their signatures, /h,
! An election under the municipal act is com-
j nienced when the returning ollicer receives the
nomination of candidates, audit is not necessary
to constitute an election that a poll should lie
demanded. Where, therefore, in an indictment
for perjury, <lefendant was alleged to have sworn
that no notice of the di-sipuiliticaticni of a candi-
date for township councillor had been given
previous to or at the time of ludding the elec-
tion, the perjury assigned being that such notice
had been given previous to the election ; and
the notice ajipeared to have been given on the
nominaticmof the caiulidate objected to : — Held,
that the assigiuiient was not jiroved. /fii/imi v.
('txniii, '24 Q. B. tiOd.
1 !.
;-ii|
\ ; ! ■ liv
Mi
m\^i
931
CRIMINAL LAW.
1)32
. An indictment for perjurj- clmrj^ed that it was
(.'oniniittp<l on tliu trial of an in<liutnicnt against
A. B. , at the C'onrt of Quarter Sessions, for the
county of B., on the 1 Ith of June, 1867, on a
cliarge of larceny ; - Held, sufficient. Heq'ma v.
MacdMHilil, 17 C. P. r).St>.
Upon an in<lictinent for perjury ooiumitted
upon tlie hearing of a complaint before a magis-
trate, the information having lieen proved : —
Held, ui)on a case reserveil, that it was unneces-
sary to prove any summons issued, or any >>tep
taken to bring tlie person complained of before
the magistrate ; for so long as he was present,
the manner of his getting there was immaterial.
livuinu V. M(m>i,, 29 Q. B. 4.31.
The indictment was defective for not shewing
the jurisdiction over the ofTence, by alleging
where the licpior was sold, the sale of wliich
without license was the conij)laint ; Imt as judg-
ment liad been pronounced, this could be taken
advantage of only by writ of error. Qua-re.
whether it was n<it defective also, for not shew-
ing that the person complained against was
present, or that a sunnnons is-sued, and that
the magistrate was authoriy.ed to proceed ex
parte, lb.
Attempting to liargain with or procure a wo-
nuvn falsely to make the affidavit providetl for
by C. S. U. C. c. 77, .s. (i, that A. m the father
of her illegitinuvte cliild, is an indictalile otltnce.
Tlie attempt proved consiste<l of a letter written
by defendant, dated at Bradford, in the county
of Simcoe, purporting, but not provcil, to bear
the Bradford [lost mark, and addressed to tlie
woman at Toronto, where she received it : -
Held, that the case could l)e tried at York.
Semblc, jier Draper, V. J., if the post mark liad
been proved, and the letter thus shewn to liavc
passed out of defendant's luuids in JSinicoe, in-
tended for tlie woman, tlie otl'eiice would have
been complete in that county, and the indictment
only triable there. Per Hagarty, .1., the defeii
dant in tiiat case would still have caused t)ie
letter to be received in York, and might be
tried there. Qua're, whether, if tlie woni: n
had committed the offence, it should have lieeii
charged as a misdemeanour only, oriis the statu-
tory offence of perjuiy. Rufaitt v. ('IidiciiI. 'Jtj
Q. B. •2!»7.
<'. S. U. ('. c. .V2, s. 73, eiiijiowcrs any justice
of the peace to examine on oath any jierson wlio
comes before him to give evidence touching lo.ss
by tire, in which a mutual insurance company is
interes/ted, ami toailministerto him tlie reijuisite
oath. I'lion an indictment for perjury assigned
upon an affiilavit made in compliance with one of
the conditions of a policy : -Hehl, that the j)olicy
must be produced, tilthougii the defendant'.s affi-
davit referred to the jiolicy in such a way tiiat
its existence might be fairly inferred, /ffi/liin \,
O'anati, 17 (". P. .').m
32 & .S3 Vict. c. 23, s. 8, I)., .aiipliea to all
cfvses of perjury, not merely to "Perjuries in
Insurance Cases," which is the heading under
which 88. 4 to 12 are placed in the Act. RuiUm
v. Vurrk. 31 Q. B. r)82.
Held, therefore, that a magistrate in tlie
county of Haltoii ha<l jurisdiction to take an
information, and to apprehend anil bind over a
person charged with perjury committed in the
county of ^^ ellington. //;.
Held, also, that a recognizance to apiMjar f •
trial on such charge at the Seasions wiis wmn
as that court has no jurisdiction in iicijurv 1 >•
a certiorari to remove it was refused, as the'tim
for the appearance of the party liad gdiu: liy //
The practice of indicting paities or witii(.,<
for alleged perjury in a civil suit, whil,,. jiVKet^
ings arc still pending, disapproved of ('/„„/,;'
Meagher, 24 C. V. .54.
XXIX. lUiK.
1. The Ojfhin.
Having connexion with a woman luulir lii
cuuistanees which induce her to beliovc that '■
is her husband, does not amount to a raiM' ^''
U'liiay. Friinrh: 13 Q. B. II(>. ' ' "
In the case of rape of an idiot or liiii.itif, tlii
mere proof of connection will not warrant the
case being left to the jury. There; miist \v simi,
evidence that it was without licr coiKsont. u ■
that she was incapable, from indiocility, i,t ^x
pressing assent or dissent ; and it she tuii.seiit
from mere animal passion, it is not laiio Jiuih,,
v. Conmdiii, 2(i Q. B. 317.
In this case the charge was assault witli mteiit
to ravish. The Moman was insane, and tli.'re
was no evidence .as to her general chiincttr for
chastity, or anything to raise a pn'suiinitimithat
she would not consent. The jury wiic dirtrfci!
that if siie had no moral perception of linhtaiii
wrong, and her acts were not ciiiitiiillcrhv the
will, slie was not capable of giving cniisciit^ aiiii
the yielding on her part, the prisoiai- knuwini;
her .state, was not an act done with hti will!
They convicted, saying she was iiisaia- ami
consented : -Held, tliat the conviction wmlil net
lie sustained. //>.
On an iiulictment for attempting to liavu con-
nection with a girl under ten, roii.si'iit i.i iiimia-
terial, but in such a case there can lie no lonvii
tion for assault if there was coii.scnt. /'.
Tlie meaning of the word.s tliat tlio iiiisirik-r
" violently and against herMJli fclniiinuslyiiiii
ravish, "is, tliat the wonian has licvu i|iiiti'mer
come by force or terror, aci'(iiii])aiiifil witliib
innch resistance on licr jiart as was jmssilili un-
der the eircunistanccs. and so as to haM'inailcthr
ravislier see and know that she really was resist
ing to the utmost, and in this i.'ase thu oviiWi
was Held sufficient to warrant a coiivjiti'iii.
'!"he facts, as they aiipeareil in I'vidwiee, Hom
left to the jury, wlio were alsi^ toM tliat tlic.i
must be satisfied liefore coiiviitiiij,' that tbc
prisoner had had connection with tlii' [msaii-
trix "witii force and violence and against kr
will ;" and further, that "sonieresistani'ushuiil!
be made on the part <if the woman, to shew tliat
she really was not a coiibeiiting party ;" Held,
a proper and full direction. Uitpn" v. /'W. lii
C. \\ 37!>.
XXX. nn>r.
Defendant was indicted for a rint aiiii,i,«iuit,
and the jury found him guilty of a riot, Imt in't
of the assault : -Hehl, that a conviction fur riot
could not be sustained, the assault, the oliject
of the riotous assembly, not liaviiiy l)een eie
cuted ; although the defendant uiight. iiave U'lr,
guilty of riot or joining in an unlawful asscmhly.
lieflina v. Kelly, « C. P. .172.
933
CRIMINAL LAW.
1)34
XXXI. Sackii.wji:.
XXXI V
I'RAiril K.
\n indictment for bruaking into a Lliurch and
stealin« vestments, &o., there. .les.;ril)ing the
toods stolen us the property of " the panshoners
If the siiid church : — Helil. had. hViimi v.
O'Brk'h i:^ y- f*' '*^'*-
They nnist be averred to belong to .some per-
.nn or persons individually. Such a defect !»
;o"witl.mt'.olHVi.-t. c. !.2.>
rse^
('H0( KDUliK AM'
I. iHilirtwnit.
dso, the (lifl'erent crimes. !
(a) Vi'mu.
The attemiit to procure a woman to make a
false artidavit, consisted of a letter written by
defendant, dated at IJradfoi'd, in the county
of iSinicoc, purjiortiui,', Imt not proved, to bear
the Bradfi.rd post mark, and adilre.s.sod to the
whcii slit; received it :
could be tried at ^'ork.
woman at 'I'oront
Hehl, that the case
X.XXlil. OTIIKK OFKKNtES.
Seiiihle, that the treasurer of a municipality
luu lie imlicteil for an appropriation of the
tuiuls dearly ci>utrary to law, even though sau-
titiued by .'■ resolution of tlie rouncil. Miink'i-
MliUioft'(iitNi'<»oiin\: /forMiiuni, \(i(i. B. r)7().
.-Jeiiilile. that the treasurer of a municipality
iniL'lit lie indicted for paying a mend)er of the
touiuil for his attendance. //'. See, also, Diu'U-Ih
V Tk- Muiih'ijxil Vniairil of th' Toinishh' of
H,„V„;I, 10 (,>. ». 47>S.
The stutute 5 & tJ Kdw . \l. c. Iti, against
liuyinn and selling of offices, is in force in this
.iimitn- under the 40 ( ieo. 1 II. c, 1. a.s j.art of the
irimiuiil law of Kngland. Any act done in con-
travention of that statute is indictable, tiiougli
notspeeiallynnnlcso. t,»ua-re, per T{(d)inson. ('.
J., whether it is also introduced by the IVJ (ieo.
III. c. I, which aihipts the law of England " in
:ill matters of controversy relative to proin-rty
;m,l mil rights." The 4<» (.eo. 111. r. !2(;,
tlurly extends the ."> & (i Kdw. \'I. t..^ Upi.er
I'anaila, and to the uttice of sheriH. l''oott v.
Unlink. 4 {). H. 480. continneil. A'n/iiin v.
\liir',: IT Q. R t)02 : /.'<'<//■)«" v. M<«,.i:,, -JO (,».
H. 3Sit.
The ilefenilant agreed with K., then -.hcrirt'i.f
tiiecmnity of NoitVdk, to give him t.^OO ami an
annuity of il.SOO a year if he would resign ; 1>,
wmlingly placed his reisiguation in defendant's
liaiiils. The tl.JOO was paid and certain lanils
nmveyed to secure the annuity ; and it was
further agreed that in the event of the resigna-
tion lieing returned, ami E. continuing to ludd
the office, the money sliouhl be repai(l and the
laud reeonveycil ; hut K. ilid not undertake in
any way to assist in [irocuring the apjiointment
for defendant. The defendant having been aj)-
jiointed liy the government in ignorance of this
agreement, an informatioii was hied against him
I aiul Bci.fa. hrought to cancel his patent : Held,
an illegaltr.aiisaction witlun 5 & (5 Kdw . VI., and
that iin iiifornmtion might be .sustained under
[that actmthoHt refcrenoe to the 4!) Oeo. 111.,
j which clearly prohibited and made it a misde-
I meaiiour. Ri(jhui v. Mercer, 17 Q. B. (>02.
Sendile, that the agreement would also have
I Wn an offence at coninum law. The ignor.anee
f ul the government, which was averred in the
{ uifonnation, as to the illegal agreement, wa-s ini-
[ material. IL
Semble, jier Draper. C. .1., if the post mark had
been [iroved, and the letter tluis shewn to have
p;ussed out of defendant's hands in Sinicoe, in-
tended for the woman, the ofl'ence wonhl have
been complete in that county, and the iiulictment
only triable there. Per Hagarty, .!.. the ilefen-
dant in that case W(mhl still have caused the
letter to In- received in York, .ind might be tried
tliere. /'fnhm v. Cleiimif, Ki (,>. B. '2'.)1.
Held, that .'{2 & Xi Vict. c. 'J». s. 1 1, dues not
authorize aii\ ordci- for the ihange of the place
(if trial of ,1 prisoner in any case where such
change wiodd not have been granted under the
former prat tice. the statute only att'ecting pro-
cedure. J{e>ll,i,i\. .!/'•/.<- r/. -) l'."i;. 181. (11..
« Ihamb. ~-( ialt.
HeM, that the great inland lakci of < 'anada
arewitiiiiithc admiralty jurisdiction, and ort'ences
committed on them are as though committed on
'^' ' " ' and theivtdre any magistrate of
.luthority to eiKjuirc into
on said lakes although in
liiij'iiHi \. Sh<n-/i. r> V. ]'\.
A. Wilson.
Nee y,'. g//..' v. //»/<;/'.s-7/, .'{."» Q. B. 1)03, [). !)2i'').
the high seas
this province iuis
ort'ences connnittcd.
American waters.
l.V.. C. 1.. I'hamb.
(b) Jfit'i/: r iif ' 'ointf.'t (nut Defetxhint.'i.
.\\i indictment charging a inisdemeanoi ag.iinst
a registrar and his deputy jointly is gond ii the
facts cstablisli a joint ott'euce. .\ deputy is liable
to be indicteil while the principal legally holds
the otlice. and even after the deputy himself has
been dismissed Iteii'mu v lieiijani'm, 4( '. 1'. I7'.*.
Where twu ih;r'endants sat together as magis-
trates, and one exacted a sum of money from a
person charged before them with a felony, the
other not dissenting:-- Held, that they miglit be
jointly convicted. Reiiiim v. 7">'<(loli' < > af.. '10
Q. B.l>72.
Ibis not a misjoinder of counts to add allega-
tions of a previous conviction foi' niisdemeanour,
as counts, te a count for larceny ; ami the 4UJS-
tion, at all events, can only lu; raised l>y demurrer
or motion to quash the indictineiit, under 3'2 k
X\ Vict. c. 'i!', s. :VJ ; and where there has been
a demurrer to such allegations as insutticient in
law, and judgment in favour of the prisoner, but
he is convicted on the fehiuy count, the Court of
Error will not reopen the matter on the sugges-
tion that tliere is misjoinder of counts, Rniiiin
V. ^fll.'<wl. 2'2('. r. 24().
The prisoner in this ease was indicted on two
sets of counts, one charging him as a citizen of
the United States, the other as a subject of her
Majesty. The learned judge at the trial refused
to put the crown to an election between the two
if
'!• r
II
I '
'"
935
CRIMINAL LAW.
93i;
Hets of counts, and the court upbcld his nilinj,'.
Rt'ijiua V. Sihool, U(i t^. H. 212.
Where an indictiuent contains one count for
larceny, and allci,ati()nH in tlie nature of counts
for previous convictions for inisdcineimors, and
the prisoner, beiny arraigned on the whole in-
dictment, pleads "not guilty," and is tried at a
sul)se(|uent Assize, when the count for larceny
only is read to the jury : - Held, no error, as the
prisoner wjis otdy given in charge on the larceny
count. liii/iiKi. V. Mii.iiiii, '2-2 C. ]'. 24(i.
(c) Sliifnnriit <;/' I )iriii'r.sti!/> of I'l-ojurti/.
Where an imlictnient charged defendant with
procuring certain pei-son.s to cut trees, the pro-
[icrty of A., B.. and (!., growing on certain land
lielonging to tiieni, and the evidence shewed
that the land belonged to thcni and to another
as tenants in (^oiunion ; Held, that a conviction
could not be supported. Ittii'iiui. v. Qnltni, 20
Q. B. 1 58.
See Hi'<f(iw v. Ji/i//','i; )!( (). R 5I.S, p. !»12 ;
R^'ilhiay. J/rt-rw/, i;U". r. 484, p. !»24 ; liiiibia
V. Drxxiucr, 21 Q. B. 231, p. 012: Jfi'i/iiia v.
O'/inn,, VA Q. B. 43<>. p. 022; Nnjinav. jacknon,
infra.
(dl ('"i>!lof.
LSee 32 & 33 c. 20, s. 47, !>.]
A copy of an indictment for high treason may
be had by the conscjit of the attorney -general.
Ri'x v. M,-] >,))!, f, 'I'ay. 200.
Sendile, that a jicrsmi tried for felony and ac-
quitted, (ran ojily obtain a co])y of the indictment
and record of actpiitt il, to be useil in an action for
nudicious jiroseoution, nn the Hat of the attorney-
general ; and the granting or refusing such ap-
plication cannot l)e reviewed by this court.
The application here was for a rule calling on
the attorney -general to shew cause why judg-
ment of ac(piittal shoiUd not be entered on the
indictment : -Held, that the indictment not
being a record of tliis loiirt, or bnmglit into it
by certiorari, i\n\ c^mrt had no jurisdiction.
lifWmi V. //•//, 24(', I'. 7S.
(e) Aiiuiiiliiii'tit of.
The ))ris(nier was indicted for stealing the
cattle of B. M. At the trial H. M. gave evi-
dence that he was nineteen years of age : that
his father was dead, and the goods were bought
with the proceeds of his father's estate : that his
mother was administratrix, an<l that the witness
managed the property, and bought the cattle in
(juestion. On objection taken the indictment
WJis amended, by stating the gooils to be the
property of the mot};er, and no further evidence
of her administrative character was given, the
County Court judge holding the evidence of K.
M. suHicient, and not leaving any question as to
the property to the jury. On a case reserved ;
— Held, 1. Tint there was ample evidence '^f
possession in R. M. to support the indictmen'/
without amendment ; 2. 'J'hat the judge had
power to amend under V,. S. C. c. 00, s. 78 ; 3.
That the conviction on the amended indictment
could not be sustained, there being no evidence
of the mother's represeiitative character ; nor
any (juestion of ownership by her, apart from
such chai'actcr, left to
Jartiuii, IOC. 1'. 280.
the
Ji'i'.v. /;.;,;„„
Defendant was charged with havini; .sot tirt
a building, the property of one ,1. H.? ''with
tent to defraud. " The'case opened bv tin. .nm-
was that the prisoner inteiuled to liclVaml «. "
eral insurance companies, but the lev;,i| |,,.|,ni ■
the ])olicie8 was wanting, and an ?uiKMi,lrii,.r
was allowed by striking out the \v„r,l.s witi!
"intent to defraud." The evidoii.,: slmvj
that ditlcrent persons were intere.-toil as m,,,.'
gagees of the building, a large li„t,,l, niicl .1 n
as owner of the cijuity of redcniptii.ii, lt\v
left to the jury to say whether tlic prismuaiiiti.ii
ileil to injure any of those iutcrvstcd Thi'v
found a verdict of guilty : Held, that, tlioaiiM,,:
dinent was autluu-ized and iiropor, and the am-
viction was warranted by the ovideiicc /',,,;,
V. Crouhf, Q. B. H. T. 187,-.. N„t yet'ici„',rt«l.
The indictment in such a case is siillJciL.n;
without alleging any intent, there )ieiii;,r |„,„„,]'
averment in the statutory form ; but aiilntfiit t.
injure or defraud must be shewn on the trial //,
"The merits of the case," with rel'ciome tn
amendments, under 32 & 33 \'ict. c. 21) s "I
means the justice of the case as reuanls thi-
guilt or innocence of the )irisiiiKr ; and "liji
(lefence on such merits" means a substantial uinl
not a formal or technical defence. //,,
See Ci);v('(((W v. /iV;/i/(((, 33 <,». I'>. lod,
:i;!\
s. •-','). no inilictiamt
tor the iiniissi(]ii of
(f) Of hi,- CV/.vv.v.
In an indictmotit charging the jirisouer witl
stealing bank bills, the words, "of the nuiiiivs
goods, and chattels," nuiy be reji'cteil assiniiliis.
age. H<ifin<i v. StuiiuUi-s, 10 (^i. li. .■)44.
As to the averment, "contra fm'niani statuti,
see h'liiina v. Di'oii, , 10 (.). B, 4li4 ; linfinn'y.
Widker, 10t^>. B. 4().-) ; I'li/hinx. ('iiiiiiinii'Ji. hH),
B. IT); J'lfinn v. I'drMiii, 14 ('. I'. 30!).
[By 32 & 33 Vict. c. 20,
shall l)e held iiisutlicient
these wor<ls. |
An indictment alleged a miisanee tn lie near
lot 1(), and the evidence shewed it tn lie on it : -
HeW, a fatal variance. Ruihm \. .1/. //(,<.,') ('
V. 30.").
Held, that the in<lictnient for false |ireteiKw,
in this case, was clearly sutiicient, as it fullnwui
exactly the form sanctioned bv IS Viet. e. !)i
R,',)i)i<i\. J)(ir!.<, \Si). B. ISO.'
The production of the original imlietnienl i-iiii-
sutKcient to jirove an indictment forfeliinv; liut
a record nmst be nuide up, with a jiniiiereaiitimi.
/Iriiri/ V. Li//!r, II Q. K -JOC.
Variance between indictment and jiionf in de-
scription of land. Riijinii v. lidliij, \'2, (,'. B. HW.
The indictment charged one B. with (ib-
taining by false pretences, from one J. T., t«o
horses, with intent to defraud, and thiit tlie
defendant was present aiding and abetting the
said B. the misdemeanor aforesaid tn eiraimit;
— Held, good, defendant being eharged .19 a
principal ni the second degree : Held, alse, that
the evidence, set out in the case, wa,s nut sutii-
cient to sustain the charge. Ri'fiiin v. Vnmm,
14 C. V. r)20.
93il
;/'"" V,
nil; set tin' ti.
H., "withii,
1>\' tlu' iTOWIi
ili'traml sm-
It'l^ill pnidf (,;
II iiiiifiKlmeiit
I' wiii-its witli
It'Mrt.' sllL'Wul
stcd ;is iiinrt.
t(.'l, ami .1. 11.
l»ti.iii. It w:i<
\irisiiiK'riiittii.
iv^tcd. Tbuy
hat tile aiiiuiiil-
;, aiiil tilt" 1,'iin-
li'in'c. Il'ijitin
it yt'l rt'iMirtcd.
so is sulticioiit
e lu'iiiL; imsurli
lilt an intent t'-
ill llic trial. H.
til ri'fiM'Oiioe til
kt. c. •J'.l s. 71,
as n'},'arils tlit
iiuo' : and 'Miis
iMilistantiahiinl
•. Ik
I'.. 1011. p. '.Ills.
ic iirisimiT witli
"lit tlu' miiikVi'
octoil as suqiliis-
1!. .-.44.
loriiiamstatuti,"
4(i t ; /i'i;/i«'i V.
< 'tiniii'iii'l^: lti(^*.
1'. :wx
\\, nil imlii'tiiitut
the mnisMiiii "'
laik'i' til lif iitav
lit tu Ik: 1111 it :
N . .1/. ,1/1 -■-■. ;i i;.
lalsi' \ircti'iuc>,
|lt, as it fiilliiWfi'i
IS Vict. .■. Ili.
lii.ilii-tim'iitisiii-
t'ur fi'liiiiv ; lij;
la]iriilieriMiiti":!
laiiil iirii<ifinil<-
\l,ii, l'J(,i. R3W.
,. I',, witii lib-
one •!. T., two
, anil tliiit tk
liinl abetting tlie
laid til eiinimit;
ehargeil as a
Held, lilsii.tliiit
was net siitii-
OS-
CRIMINAL LAW.
!»;{8
The iiidietineiit oliiiiged that the (Iffemlant
'did leeeivc, coiuual. «/■ as.fist" duo W., a doser-
the navy. SciiiltU', imt .sntliiduiitly
ter Iriiiii
Ifi 'liiHi V. I'littrrKiiii, 21 (i.
certain and i.ivewf
B. 14-2.
•pi,,, eiinrt will imt arrest Juilgiiiuiit after ver-
lict iir reverse juilginent in error, t'or any defect
'„di'nt 1111 the faee of the indietuieiit, a.s by .'«&
;« Viet. e. •-'!>,
must 1k' taken
(lUiVsU the
l\ V. ■.'4<>.
^11 iiidietnient de-ieriliiiig an otl'eiiee within ."{'J
* •« Viet. e. 21 , s. I'S, as feloniously stealiiiij; an
iniormatioii taken in a i.olioe court, is sutlieient
after verdict.
IVJ, (d)jeetion to sueh defect
>y deiiiurror or by inotion to
iinlictineiit. /'iii'uki v. Mh.'hiii, 'i'J
//..
•2. Pli" <•/ Atitrcfo'ix Ari/iilf.
The nrisiiner lieiiig indicted under V. S. V . ('.
c %. and charged as a citizen of the V. S., was
aciiuitted nil ]in'ving himself to be a Hritish
siilijeit. He was then indicted as a subject of
Her -Majesty, and pleaded autrefois aciiuit :
Held, that the idea was not proved, for that by
the statute the olleiice in the case of a foreigner
mil a sulijeet is substantially ditt'ereiit, the evi-
ikiice. irrespective of national status, which
Wdulii eiinvict a foreigner, bein^' insutticient as
i.Miiist a subject ; and the prisoner therefore
\m nut in legal peril on the first indictment.
;,V,;;/iii v. .)[(ii}r«lli, -Jti t^. li. 385.
See %;«" V. Sniitli, 34 Q. B. rm. p. !t05.
adjoiirnnieiit. F5y ;{•_' .t ;{:t Vict, c •.(). s. (>l).
under which the charge was inadc, "Whosoever,
without lawful authority, forcibly seizes and
eoutiiies or imprisons any other person within
Canada, or kidnaps any other iierson with intent"
to cause such person to !),■ secretly contiiied or
imprisoned in Canada, or to be iiiilawfiilly sent
or tratisiiorted out of Canada ag.iinst his will,
or to be sidd or captured as a slave, is guilty of
felony : Held, Wilson, .!.. di.^s., that the intent
reijuired applied to the sei/iiri! and coiilineinent
in Canada, as well as to kidiiap[iiiig ; and that
the tirst count, therefore, was defective in not
stating any intent. Cpoii this ground the jiidg-
iiieiit was reversed, and under C. S. U. C. e. 113,
s. 17, the record was remitted to the judge to
pronoiinee the proper jiidgmeiit, whicli would
be mion the second count only. Held, also, that
the aniendmeiit was autliurized, under .3- & 33
' Vict. c. •-".», ss. I anil 71, l>. Held, also, that
; the court would not presume that the two counts
■ referred to the same oti'eiice, and if it were so,
duplicity would not be a ground (d error. Hehl.
also, no (d)jeetioii that the jurisdiction conferred
, by 3"2 & .33 \ ict. e. .3r>, was not shewn, for the
record ami iiidgment were in the form prescribed
by that act. Held, also, that the sherill's notice
was sutlieient, as .32 & 33 N'ict. c. 3."), s. 2, re-
; i|uires it (nily to st.ite tin " nature of the charge"
preferred against the [irisouer. The prisoner
i liaviug been sent to the penitentiary, a habeas
I eor])Us was ordered to bring him up to receive
'the iiro]ier jiidgmeiit. C'ThiixiU \. licipmt, 33
(,). B. lOti.
Siimiiiiirii
Trhil heforr Cotnif;/ •luilijc.
4. Oth,
(\i.
A writ of exigi facias viill be awarded by the
Court of Queen's Heneli upon the application of a
prosecutor without its being applied for by the
attorney-general. Hu \. /I'/n/i/, Tay. 120.
The iilaiiititl' in error, having been eoiiimitted |
to sKil fur trial on a charge of unlawfully and |
tiirdlily kidnapping and taking one R without j
;uithiiiitv, with intent to transport him out of
Caiiaila lyaiiist his will, was, on the 24tli .June.
IS?.', lirmiglit before thecounly judge, by whom
iKo'iiiseiiteil to be tried under the ,32 & 33 Vict. : , .. ,, , ,,, i ^r ■ r *. <.
In the record .Irawn up under that statute, i <■ •""'' "» < b''-"'- i""' i crminer, ami the indictment
Where, in an action on the case for a nialicious
prosecution, it was alleged in the declaration that
the trial of the indictment took place before a
was at general gaol delivery : Held, that the
variance was .amendable, and that the trial of
the indictment being through a t,>ueen's eounsel
did not deprive the plaiutiH' of the right of
action against the real prosecutor. Curr v.
rroiulfonl, I']. T. 3 Vict.
(Ml ail iiidictmeiit for nuisance in obstructing
a highway, judgiiieiit had been arrested, and a
second trial had, in order to take the opinion of
the jury on a particular i|Uestioii which the court
,-.;{,i. --
it «:;.< eliarged that he did feloniously and with-
iiutauthiirity, forcibly seize and eoiiline one B.
within Canada. &c., (without alleging any in
tent,) and that he did afterwards feloiii(nisly
kiiinap mie H. with intent to cause the said B. to
lie unlawfully transported out of t'anaila against
his will, &c. 'Hie judge fixed the 3rd of .Inly
jiir the trial, and on that day the prisoner said
he was ready, Imt upon the request of eounsel
fur the erown the trial was postponed till the
l,")th if. luly, when the prisoner was found guilty i thought material. The jury upim the second
.lu Imth eiiuiits. An ainendiueiit of the indict- [ trj;,! t'ound a geiier.al verdict of acquittal, with-
meiitwas aUiPwed by the judge, changing the i „„t answering such ipiestiou, which was subniit-
iiaiiie of K. li. to. I. 11. B. In the notice re- i tt^d to them by the judge. The indictment had
([uired from tiio sheriff to the judge by 32 k ,33 j ,i„t been reimived by certiorari, and Hehl, there-
Vict. e. ;),'), s. 2, only the charge contained in the | f„re^ that this court could not interfere by stay-
seoouil eouiit c'' the indictment was referred to. i i„g the entry of judgment until a new indictment
Ouei-iirs being assigned, -Held, that the .Ses- j culd be preferred. .Semble, that the jury had
sioiis had jurisdiction over the otienee, and so the a right to find generally as they did. /{cijina v.
eounty judge had jiower to try it. Held, also, S/ienei'. 12 Q. K. .TIO.
that the record was properly framed, in stating j . . ,
the offence charged in such form as the depoai- ; ^^ ^^^^c ?io evidence ai-pears against one of sev-
tious or evidmiee shewed it should have been; oral prisoners, he <mght to be acquitted at the
close of the prosecutor s ca
1« Q. B. ()17.
anil that the judge's jurisdiction was not con
lined to the trial only of the charge as stated in
the commitment. Held, also, tliat the judge
had power to pstpune the trial, and the record
! prosecutors case. Hetfina v. Jlambhj,
An indictment having been held bad upon
demurrer, the judgment 'was that the indictment
was not defective m not stating the cause of the , be quashed, so that another iudictmeut might be
! ' "li
1 ■ !
I :
M
w
939
CRIMINAL LAW.
.i. 1
ju-ofeneil, not tliat <l(!ffiiiliiiitK in- «liMcliari;t;vl.
Reijiiiay. Tin-ni'n I'.t nl., '1\) (). H. ISl.
Tlic pliiiiititV in ermr having; lieeii ooiuinittuil
to gaol for tri.-il on a < liarjju of unlawt'uUv imil
forcibly kidimpjiing ami taking one B. witliont
authority, with intent to transjiort liini out of
(!auaila again«t his will, was, on the 'i4tli of
.June, 187-, lirought before the >.'imnty judge,
by whom he consented to lie tried under the Wi
k, 33 Viot. ('. 3."». In the record drawn uji under
that statute, it was eharj.'e<l that lie did feloni-
ously, and without authority, forcibly seize and
eonhne one P.. within Cana'ia, i"kc., (without
alleging any intent : and that he clid afterwanls
feloniously kidna]) oiw B. with intent to cause
the said B. to be unlawfully transj.orted out of
( "aiiaila against his will, ftc. The judge fixed
the 3rd of .Inly for the trial, and on that day tlie
prisoner said he was ready, but upon i-eipiest of
counsel for the crown the trial Wivs iMistjioned
until the ir)th of .Inly, when the ])risoner wvm
found guilty on both counts. An auieinluieutof
the iiiilictuient was allowed by the judge, chang-
ing the iianie of Rufus Brattoii to .laincs itiifus
Bratton. In the notice reijuired from the
sherifj' to the judge, In- 32 k 33 Vict. ■-. 3.\ .«. 2,
only the charge contained in the second count
of the indictment was referred to. On errors
being assigned : Held, I. that the sessions liad
jurisilietion over th',' otl'ence, and sm the county
judge had )iower to try it ; '1. tliat the record
■wa^ jiroperly framed, in stating tlie oHence
tiharged in sucli form as the depositions oi- evi-
dence shewed it should liave bten : and that the
judge's jurisdiction was not coiitined to the trial
only of tlie charge as stated in the conimitnient;
3. that the judge had ]Miwer to postjione the
trial, and the reeonl was not defective in not
stating the cause of the adjournment, ('oniiin/l
V. /fojiiiii, 33 Q. B. lOf!.
By .32& 33 Vict. <■. 20, t^. •>!•, undei- which the
charge W!is made, "Whosoever, witliont lawful
authority, forcibly seizes and conrines or im-
prisons any otlier j)erson within Canada, or kid-
naps any other jierson with intent to cause suc:h
person to be secretly contined or iniiirisone<l in
('auaila, or to be unlawfully sent or transiiorted
out of Canada, against his will, or to be sold or
captured as a slave, is guilty I'f felony : - Held,
Wibon, .1., di.ss., that the intent leijui red ap-
plied to the seizure and confinement in Canada,
as well as to kidnapping, and that the Hrst
count, therefore, was defective in not stating
any intent. Ujion this ground the judgment
was revereed, and under < '. S. V. C. c. 113, s.
17, the record was remitte<l t(i the judge to pro-
iiounce the proper judgment, which would be
upon the second count only : Held, 1. that the
amendment was authorized, xinder 32 & 33 Viet,
c. 29, sees. 1 and71,l>. ;2. that the court would
not presume that the two counts referred to the
same offence, ami if it were so, duplicity would
not be a ground of error; 3. no oiijection that
the jurisdiction conferred by .S2 & .33 Viet. c. 35,
■Wiis not shewn, for the record and judgment
were in the f<u'm j-reseribed by that Act ; 4.
that the slieritf's notice was suftieient, as 32 &
33 Vict. c. 35, s. 2, reijuires it only to state the
"nature of the charge" preferred against the
prisoner. The ]>risoner having been sent to the
penitentiary, .a habeas corjius was ordered to
wring him up to receive the proiier judgment.
Jb.
WKV. .h Hv.
I. Slliiniiniihl;!.
F.y proclamation jtublished on the |,lt|| h
cembt!!, I8(i(», the county of Peel was se]ijf,|(
from York from .and after the 1st cf .laiin'i-
18(i7. On the 23rd of November prtdilini.^
usual jireceiit had been sent to the sin ii|| i,),.
united counties for the winter .Assizes t'ni- y .[
to be held on the 10th January, iN'iT, in,,! .i
sherifl' returned his jianel to that pirriiit ,,
taiiiing Hfty-four jurors from York and thirtvii,,,,
Peel. Only those from Vork, however, atti'iule,i
.and the jirisoncr was tried by a jury (if nii4
etate, including six of these jiirois, hikiu ^
indictment found and pleaded to at the iiivviuc.
Assizes in October. On motion for a ia«- trial
or venire ile novo, because the preic|it auil i|j„,i
shouhl have been for Vork only, imt for (L j
united counties : -Held, per Draper, ('. .1., tin-
the objection, if available at all, must \iv tjikcj
by writ of error. Per Hagarty, ■!., n<i „],\^^iy^ ;
would lie. R'li'tini V. K'hiki/i/, 2(i Q, li. ;)2ii
It w.as objected, on error, to the iwnril „; j
judgment on a conviction for unirdcr, tliiit tl'
(uily authority shewn being that of ( Iyer iiii,j
Terminer, the award " therefore li t a jiiivtliert-
ujion immediately come," was unautliijiizcii.aiii'i
a sjiecial award of venire facias was rniiiisif..
but Held, assuming, but not adiuittiiij,;, tli,'
England there is a diH'erence in tins r. ; i
between the jiower of justices of Oyer an^l
Terminer and of (iaol Delivery, and tliat tkv I
record shewed no authority to ilcliver tlie "aol
that in this country, by the jury act, ('. S. T. (.'.
f. 31, both have the .same powers, tlic iriiieial
jirecept to summon a jury being issueil liy Imtli
before the .Assizes. Whrlni) v. /I'M/rwir,' 2S o
B. 2.
2. < 'liiilli iiijis.
Upon the trial of a party indicted fdr m\A-
nu:anor, the crown h.as a right to cause jiiiorstn
stand .aside until the whole panel is gone tliinnsli.
Ri'ljhiu V. liiujiUHin, 4 C. P. 17!».
Tpon an indictinent for conspiracy tn indciiiv
by fraud the return of one F. as a iiiumlier iW
the legislative .issembly :- -HeM, tliat tlic oniwii
was entitled to challenge any of the jiiinrs [in
emjitorily, without assigning a cause, until tlit
panel had been exhausted. Jid/iiid v, /V//(i»..,
J!)Q. B. 48.
Upon a trial f<n- murder, after the usual iiotico
of right of challenge, two jurymen wore swoni
without challenge. .J. H. was then calk'il, aiii
a person came forward and was sworn, dtlien
were called .and challenged ; .and after aiiotlier
wa« called and sworn without clialloiige, tlie
prisoner's counsel objected to .1. 11., as ho \v:u<a
witness in the case. Upon eii(|uiry he wasfouiiil
not to be tie person intended to he oalleil («
the jury, being not only a witness, imt not »
resident in the counties, and therefore luitquali-
tied ii8 a juryman. Upon consent of cnuiisel for
the crown and prisoner, he wasalloweil toretim
iuid others were called and sworn, the prisoner
exercising the right to challenge, till the jiir)'
was cliosen. After conviction, upon motion for
a new trial,— HeW, 1. That .J. H. (iniproiierly
sworn) was legally discharged from the jury ; -■
That the right of challenge as to those previouly
941
.worn A
in;: 11''!
jirisi'iu'
tl.wuL'i:
V. ('..".v.
(Ill a
^■liiUleiitit
favmir,
niloil tli:
cliiJIoiiui
ami ili'iu
(III the ri.
juilfOiieiit
by the
a iii'ivni]!
primmtv.
twenty
ciiiilleiigc
by the er
to L-halleii
ilige.
■a
(•H
oil Mk' |,-,tl, ii,
■el was M'jiaratf
3 1st oi .laiiuari
ifl- plVll'ilili^, tii.
the Mlii'rill„j,j,
Assi/.is I'lir V,,,^
ly, ISHT, iuiil tl,
:li;it pnvf|,t, ^,^
rkaiultliiityliut
iwevei-, atti'iiilf,!
!i jury ill. iiipl.
' jui-drs, iiiKiiu,
to at tliu iiroviiici
>ii fill- a la^w trial,
liivceiitaiiiliiaiiti
)iil.v, iKit tor tkf
"•••iiier, C. .I„tlui
11, iiuist lif taktj
;, .1., nil iiliiwti,,,
I, M g. li. 32(1.
to the rcciml ui i
iimnler, tliat tl.-;
that (if (lyiT aiiil i
reUt a .jiii-y tlicit. !
uiuuitliiifi/.nl, aiiH 1
ias was i'ui|iiisit"
iuliuittiiij;, th?
e ill this !•' .1
i;es of Oyer aiiij
Ji-y, ami that tliv
ileliver the ^wl ■
,ry ai-t, (.'. S. r.C,
iwei-s, the gi'iieral
iig issueil liy IhiII]
V. A'' .'/Jmii,' 28 II.
llclifted I'lir lui.-ilc-
to eause .jiinirstti
|el is gone thrimsli.
^jiiracy to pruoiitv
las a ineiiiiier k
that the crown
|if the juriirs ini
.■ause, until tiie
IdjilKt V. t'llhlim,
\y the usual notice
men wore sworn
I then ealleil, aii'l
swdi'ii. ethers
kill after aiiotkr
It elialleiige, the
11., as he was. 1
liiry he wusfouiiil
1 to' he oalleil m
[tiiess, Init not s
Lirefore iKitquali-
lilt of counsel k
lillowe(ltori.tire,
Ini, the prisoner
Ige, till the jiir)'
Vpon motion for
H. (improiKTly
loin the jury ; 2.
Tthosc previoisly
941
CUIMINAL LAW,
!I42
iiut tlierelfy reopened, tiieii lesweai-
. .'iiii.' reiiilered iieecHsary ; H. Thiit the
!',n8,'iiK- «a- proporly tried by the twelv(>, iil-
{liiiuL'li thirteen were sworn to try hiia. A'r.;,».«
(Ml a trial for uiiii'dur the jnisuiu r desired to
one of the jurors ealled, for
sutiieieiit cause. The iudi'e
eliiUleiige one •
favour, alle^'Ui., ^ , . , •
that he must tirst exh.aust his jiereiiiiitory
iiid this jioiut WHS raised hy ]ilea
eiiu:rn;r, and foniially decided. 'I'he entry
tlie record then wiis, that in defereiieo to the
" ' .niieiit the ihallcnge was taken and treated
tlie prisoner, and hy the attorney -general, as
n oeivniptorv ehalleiige for and on l.idialf of
Jisoiicr. .At'terwiinls, having exhansttid
twenty ehalleiiu'es. ineludinji S., h
rule.1
ih.illeii,L;es,
anil
on
juil
hyl
■s, including S., Me claiinoil to^'j
ilwllenge peremptorily one H., contending that \ y
liv the erroneous ruling he had heen compelled
ti'uhalleiii-'e '^. peioiiii>torily, and should not he
iililigeil to oiuiiit him ius one of the twenty. This
wiis also entered of record and ileeideil against
liini:- Held, 1. That the prisoner was entitled
to ehallenge for cause liefore exhausting his
wrcmptory elnvUeiiges ; that error would lie for
the refusal of this right; and that had S. heen
sworn there imist have lieen a venire de novo ;
Imt. Held, also,
'I'he )>riKonei was convicted of arson. His
ndiuission or confession was received in evidence
on the testimony of the constahle, who said that
after the jniHoner had heen in a second time hi!-
fore the coroner, he stated there was something
more he could tell, whereupon the constable
cautioned him not to say what was untrue. He
then confessed the charge. The constalilo did
not reecdiect any induceineiit being held out to
him. There was also evidence that on the third
day of iii.s incarceration he cxpres.sed a wish to
the coroner to confess, on whieli the lattt r gave
him the ordinary cautior., that anything he said
might be used against him, and not to say aiiy-
j]n. i thing unless lie wished. He then made a second
jijg ; statement, and after an absence of a few niiniitus
laimeil to i returned and nnule a full confession : Held,
"lat on these facts apiiearing, the statement
made to the constalde was jirima facie receiv-
able, and that the .judge was well warranted in
receiving as voluntary the confession made to
the coroner after due warning bv him. /{I'yhiii
v. /•■;)(/./,, ].-)('. 1'. 4ra
Semble, however, that the more reasonable
rule to ailojit in such cases is, that notwith-
standing the caution of the magistrate, it is
necessary in the ease of a second confession,
.'. ^^^rrison, ■)., diss., that by i ,„,t ineiely to caution the prisoner not to say
tin iieremptory challenge of S., which excluded :,i„y thing "to injure himself, but to inform
himfronithe jury, the lirst ground of error was iiiii, ti,.it the lirst stattment cannot be used
removed; ami that error on the second challenge against him. Ihit in this ease, it having after-
toiiMnothe supjiorted, for the prisoner had in ' uanis apiieared that the prosecutor had otl'ereil
faetlwil twenty peremptory challenges, and the , ,ii|.yi^..t iudnceinents to the prisoner to confess:
jiereuiiitory.uallenge of S. being in deference to Hei,]^ tliat if the judge was satistied that
thernhng of the judge did not make it the less ■ the promise of favour thus held out had induced
,a peremptory challenge. Whilmi v. RnjliHi, US | tlic confessions, and contiinied to act npini the
(^, Pi. 2. I ])risoiier"s mind, notwithstanding the warning of
The above judgment, on error, athrmed. Van i the coroner, he was right in directing the jury
Koiylmet. (-'., Hag.arty, C. .1. (_'. P., Spragge, i to reject them. ///.
Held, also, that if the judge suspected the
confessions iiad been obtained by undue influ-
ence, such suspicion should have been removed
before he received the evidence. It is aiiuestion
not he exercised "on the trial of any indictment f,,,- the judge whether or not the priscmer has
or information by a private prosecut(U' for the hnjen induced by undue iiiHuence to confess, lit
liiiMiuition of • ''■-■- '^•-'•" "■•'•' -■'
V, el, and Morrison, •!., <liss. W'/nlun v. HcjliKt,
28 Q. K. 108.
The,S7 Viet. c. H.S, s. 1 1, enacts that the right
of the crown to cause jurors to stand jisidc shall
defamatory libel :" Held, to I
inclmle all cases of def.amatory libels upmi in- I
ilividiials, as distinguished fnmi seditious or
c hlasphenious libels; and *hat the fact of the i
lirosecntioii being conducted liy a counsel aj)-
pointtid hy ami representing the attorney -general
Semble, that when the names of other ]>riaoner.s
are mentioned in the confession, the proper course
is to lead the names in full, but to direct the jury
not to pay any attention to them. Ih.
The prisoner, after his committal f(n' trial, and
would make no diflerence. Reifinn v. Patl< sou, I while in the custodv of a constable, made a state-
It. B. M, T. 1874. Not yet reported. j nient, uiion which" the latter took him before a
The judge, at the trial, allowed tlie crown ' magistrate, when he laid an information on oath
I counsel in such a case to direct juroi-s to 8tan<l charging another person with having suggested
" "■ .... the crime, and asked him to join in it, which he
I aside, hut, after the verdict, entertaining iloubts,
f he reserved a case for the opinion of this court
I a.< to the propriety of his having permitted it :- -
; Hehl, that he w;is clearly not precluded from
fsnck reservation hy having allowed the right
I when claimed, luid that such question Wiis a (pies-
I tiou of law wliicli arose on the trial, within the
I meaning of the statute. / h.
XXXVI. EviDEKfK.
[See, also, the diflerent headings.]
1, ConJmionK and AdnmslotiH,
Held, that stivtements made by a prisoner to
Ithe parties who arrested him, he having been
|previou8ly told on what charge he was arrested,
|wcre evidence. R(,jbm v. 7\iffovd, 8 C. P. 81.
iccordingly diil. Upon the arrest of the accused,
the prisoner made a full deposition against him,
at the same time admitting his own guilt. Both
information and deposition appear to have been
vtdnntarily made, uiiinHuenced by either hope
(n- threat ; but it also appeared that the prisoner
had not been cautioned that his statements as
to the other might be given in evidence against
himself, though he had been duly cautioned
when under examination in his own ease : —
Held, following Regina r. Finkle, l.") C. P. 453,
that both the information and deposition were
properly received in evidence, as being state-
ments voluntarily made, uninfluenced by any
promises held out as an inducement to the pris-
oner to make them, and that too, though made
under oath. Regina v. Field, 16 C. 1'. 98.
!'',
Irj,
i ' ' '■
i ;■'
1 :
■ ■ 1
'
■i ■ \
|i' ■•
043
CRIMINAL LAW.
!'tt
The ruiy cif liiw cxLlinliu/,' tlii) swurii Ktati'-
iiiuiitH lit' n ]iriM(iiioi' iiink-r uxiiniinatinii !i|i|)ly
only to liis' (\\itiiiiiiatii>ii on n chargi! against
liinihulf, anil not wIumi tlu; (.'liurgi! was againut
another ; for in tlii^ latter caMc, a iitisoncr is not
oliligud to .say any tiling against liiinself. Init if \w
volnntoi T siH'li a statement, it will iii^ ailniis-
Hililo in oviilcni't' against liini. Kxplanation of
till' iirincijilt' on which thestatLinunt of a iirisoniT
nndcr oath is uxi'linluil. ///.
Ki'niarks as to I'viilfiici' of i oiifissions, ami
an olpjt'Ltion that the whole statement was i\ot
given. I'lii'iiiii V. .Iiiiii-K, 'lA (). I>. 4I().
See liiii'iiin v. Shinn, 17 C. 1'. -JO.'., p. !>I7.
-'■' 'hil M
At
■J. I)i/)iinl/iiiiin,
a trial for murder the jirisoner's counsel
jH'ojHtseil to prove hy witness his own deiiosition
at the inquest, and to shew hy other witnesses
that it eontained a true statement of his evidence,
although the witness alleged it to he incorrect.
The learned judge ruled that the eoroner must
be called to [)rove the deimsitions. He was
afterwards called to jirove them, and the evi-
dence hefore oHered was not again tendered :
Senihle, that the ruling as to jiroof of the dei)o-
sitions was right, they having licen taken hefore
a eoroner : hut Held, that the point hccime
inim iterial when tlicy were aftei' wards proved in
auoordance with it ; and that it must lie assumed
that it was not intonded to adduce the other
evidence. Ilciibnt v. lltiniilhDi, lii ( '. I'. H4().
The object of taking depositions is not to
aH'oi-d information to the prisoner, Imt to .secure
the testiuKiny. //'.
S. ('lllll/K'llliri) llj' l\'lfl)fH.S( ■■!.
defendant on his trial upon an indictment
Th
cannot give evidence
for himself, nor can his
wife he admitted as a witness. Id ipna v. /finii-
plini/s, !) i). B. .S37.
Whore no evidence ajipears against one of
several prisoners, he ought to lie acijuitted at the
close of the prosecutor's ease. lv>uare, whethf.'r
without such formal acquittal he may l-e called
as a -witness for his co-prisoner. Send)le, not,
unless it appear that he has been joined in
order to exclude his testimony. It is in the
discretion of the judge at the close of the prose-
cution to sulnnit such prisoner's case sejiarately
to the jury ; but he is not bound to do so, and
whether he has rightly exercised his discretion
or not, cannot be reserved as a point of law : -
Held, that in this ease (being an indictment for
arson) it could not be said that there was no
evidence against E. H., one of the prisoners ; and
vSemtde, that under the circumstances he could
not be called as a witness for the other. Jfci/inu
V. Ilamhhu-lnl., Ki Q. R (>17.
Four prisoners being indicted together for
robbery, one severed in his challenges from the
other three, who were lirst tried ; -Held, that
he was a competent witness on their behalf.
Re<jina v. Jerrett eial., 22 Q. B. 499.
4. Accomplice.'^.
A conviction of a prisoner for horse-stealing,
upon the uncorroborated evidence of an accom-
jilice, was held legal, altliough the iinj. . ,, ,
caution the jury as to the wciglit t„ l,,'..!',',!',''"!
to the .; vidcuce. /,', ,/;„„ V. li.rkmlth, 8 ( '. p .Ij
Scndile. that a conviction .in an iiuiict,,,,,,
tor .onspiracy to procure by fr;iuil tl„. „ (uri
one F. to the Legislative .Asscinl.ly ,, '
evidence ot an accomphec not uin'iMunit,.,! |,
otiiei- testimony, is not illegal;
"'t, II.
in this case sucli ('vid. nee was clein'lv cci.ii,',
and that the verdict against all tin: ,|„f' ,',''"
was warranted. //, 7;,... v. r> lloif... .t .ii „'
>\ as warranted
1!. 4S.
Wlun till
■■■"' III.
■ tint
ii,
ll'liUil,
"I
!►
ifii the jury liav.. l.eeii vaiiti„ni,l ■„
acting upon the miconlirmeil tcst]iii,,i.\ ,i,'
complices, no fault can be found with tlii' i,!.,
sion of their evidence. /,'<nh,„ y ,V,,/,/'!, .",',
C. V. .'JcSit. '"'"")i..- II.
'idiiii.i, li;
indictment fur si,li,it.
"I'Xiey of til., i'.un
In this case being an
ilig I', and S. to steal , ,
Hank, the jury were t.il.l that tli.. tc.stiin„„v
ot the accomplices was not Hiitliri.iitjv »,i
roborated to warrant a convii.ti.in, wli. jvin,,,,,
they came into court stating that tli.'v tliMii'r|,t
the prisoner guilty, but that lie .ni-lit ii„t t.ri*
convicted on the evidence. Tlicy wijiv th,.
told that they ought to acquit ;' l„it ifttr a
short interval they retiinieil a v.,.nlictof ..,|j|t,
H-tore recording their lin.ling, tlie |irosi,li„.
judge recommended them not tmninitt mi tlif
evidence, saying, however, that tlioy cMild ,|„
.so It they tlioiight jiroi-er; they iievoitlii.lcss
adhered to their venlHt : Held, im .-rDiiml liir
a new trial, /h. °
5. (>//iir ('(!.<! .-t.
.All imlictment alleged a nuisance to be near
lot l(>, and the eviileiice .shew.. I it ti
it : Hchl, a fatal vari.ince. /,'
a ('. i". ;«)->.
10 (111
'cjillll V, .1/, )/►,■(,
A witness for the crown gave cviilciicc laiitf
dill'crent from a previous written statciiiiMitiiiiui..
by him to the Jirosecutdr's (;imiisel. Hu ;i.li>iitteil
such statement when shewn to iiiiii, hut .sai.lit
was all untrue, and made to sav.^ hiinsili, I'tr
Wilson, J. The jiro.sceu tor's .■(iiinm;! was iim-
perly .a.lmitted to disprove the w itiiuss .s iis^crtioii
as to how tiie statement came to he ma,!,, fur
the fact of its being obtaiiic.i as lie statcil w.'inM
tend very much to prejudice tin- ]ini.si,rutiM
and was therefore not a c.illateral matt.r, but
relevant. }lagarty, .1.. iiicline.l tn the .i|)im(iii
that the witness having fully a.iiiiittid his \n-
vious inconsistent statement, no fiirtlaT fviiltik^e
relating to it should have been i\^i,-i'ivcMi. 11,'i'm
V. Jcrrt'tt el al., 22 (). H. 49!».
A writ of habeas ci)rpiis ad testiliuaiuliiiii my
be issued to the warden of the pioviiiLiiil juni-
tentiary to bring a convict for life hofiire .iCoiirt
of Oyer and Terminer an.UieneiaKiaol IMivit)-,
to give testimony on behalf of the cinwn iD j
ease of murder. Iliii'ina v. TuimiKi'ml, ,S L J.
I84.--C. L. Ghanib. — Burns.
^Vhenever a joint participation in an enter-
prise is shewn, any act done in fiirtlifiance of
the common ilesign is evidence against ail wb
were at any time concerned in it. In tins cast,
the prisoner being charged with heing in anus
in Upper Canada with intent to levy war against
the Queen, evidence was adiuitte.l iigainst the
I III' lltt:M;l»l
'',«•'. I'.'iTl
the iviiirii (,|
i>ly mil ill til-
i-rii'iinriitc'il 1,(
:, lliia.tlui
I'ly ciailiniinl,
Ik; ili^tcniliiiit!
'.-I <' "'., I'.liJ,
.Utlollnl il!. I,
ttiiiiiiny (if :n-
;itli till.' mhiiis.
V. Siililiiu.<, li,
I'lit liil' snlitit-
' i)t tlu! (liirt
tliu ti'stiinimy
iittii'ii'iitly cur
iim, win iini"iii
t tlu'y tl\iiU:;lii
iiii;;lit iidt t(i !«'
liuy wuru thei!
it : Imt Hl'tur a
unliot (if (guilty.
;, tliu presiiliiy
1) (•(iiivict (in tliv
t, they cduld (111
U!y nevertheless
ill, no gnmml t'(ir
s;inee tii lie near
■il it to lit 1111
lliiiii V. .l/ii/fr>,
evidence ([uitt
stiiteinent uiadc
He lulmitteil
liiiii, Imt iiuiilit
liinseli. I'lr
(luiisel \v;is iiru-
ituess'sivhsertidii
to be miiili., iiir
he stilted wdiiW
the iinisiieutiim
tenil matter, liut
to the (i|iiiii(iii
niitted his pre-
. further evidtiioe
ivceived. A'.'/ina
estilieandmii may
provineiid in'iii-
life liefiireiitViiirt
IriiUlaidUelivir}-,
the erewn in i
loii^itii'iid, 3 L J'
Itiou in an enter-
In furtherance 01
le against all who
lit. ° 111 this case,
Ih being in anus
Inlcvywaragaifflt
litted against the
!)4."»
CRIMINAL LAW.
94G
of I'll I'ligagnieut lietwi't-li the lioily of fittcndcil the deoeaseil, ami one (if the witnestHea
'" ' ■.itli uliiiiii he Uiul lieeii ami tlie (.'aiiadian fur the ilefeiice exiiljiiiieil how the eiiiitaL'iuu
IMI \MUi "" , 1. .1 1 1.1 1 „.l...l ;....t 1 I,. -- - ■
111'
Vdlnuteeri
s althdiigli tlie same tmik jilace neveral
niiiirs after hix arrest : Hehl, tiiat tlie eviileuee
liad hw" l""r'='"'y •■•■i-''-''^'L''l. '^^ shewing to some
..xtenttliat tiie engagement in iinestioii iiail been
eonteinidateil l.y the liarties while the jiris .ner
WHS with them hetore Ins arrest. J!,<,iiiii v.
(In a trial for inunler, the erovvii having' niaile
dnt a iiriina faeie ease hy ciieiiiiistantial evidence,
the ' iirisduer's daughter, a girl of fourteen,
„ t'lilleil on his lieluvlf, and swore tiiat she
ould lie guarded against. I>r. M. had not in
his examination in eiiief or eross-examination
lieen asked anything on this suhjeet ; Meld, that
he was jirojierly allowed to lie called in i'e|ily, to
state what jireeautions had heen taken liy him
to guaril against the infection. //'</'"" v. S/inrliitiii
(Uiil Onnce^, C. P.E. T. I87">.
Not yet leiiiirted.
x.xxvn. xkw
TUI.M..
('. e. 1 13), ajier-son
[Ry'-'OViet. e. til (('. S. I
■"''!' If'l^jllVa the deceased without the prisoner's convicted of any treason, felony, or misdemeanor,
kniiwleik'i' iii"l "'"''-''■ t'ireumstances detailed, might aiiply for a new trial uimn any i.oint of
which would prohalily I'eiluee her guilt to man- law or a iiuestiou of fact in as ainjde a manner as
rhniihter —Held, that the learned judge was ! in a civil action. By 3U it 33 Vict. c. •_'!», s. 80,
ii'ittiiiuiid to tell the jury that they must believe , this act, so far as it authorizes any court to grant
this witness in the absence of testimony to shew j a new trial in any eriminal case, is repealed.
her unwdrthv of eredit, but that lie was right in ] The decisions under the act wiiile in force, arc
leavini; the 'erediirtlity of her story to them; given here so far as they seem likely to be of
w\ if frdin her manner he derived the impres- ; value, and the others are referred to. ]
si(in that she was under some undue intluence, ; rj,,^^ ^,^,„^^ ,j_^^ ,j,, j,,,^^,^,,, ^,, ,,,.^,^,,, .^ ,|^^^. (.,.;.^j j^^
it was not improper to call their attention to it , ^ ^.^iminal case reserved under 14 & l.") Viet. , c.
in his charge, Jf'VUM v. Joift, L8 <.,>. H. 410. j.j. i,nt„„lyto decide upon anylegal exceptions
C S U. C. e. ')'2, 3. 73, empowers any justice raised, and whether tliere was legal evidence to
oftheiieaee to examine on oath any person who sustain the indictment, taking it in as strong a
comes iefdre him to give evidence touching loss I sense against the defendant as it will bear, and
by tire in which a mutual insurance company is , supposing the jury to have given credit to it to
interested, and to administer to him the reiiui- [ its mil extent, /{cijiiiu v. Bahi/, 12 Q. B. 34().
site oath.' Upon aii indictment for perjury Q„,i.re, whether it is proper to grant a new
assigned upon an athdavit made in compliiuiee j ^^.j^^j^ ^^^^^^ j^,^ iudivi.lual or a eorijoration has
with one (if the conditions ot a policy,— Held, h.gen once acc.uitted on an indictment, even in
that the pohcy must be produc'ed although the ^.^^^^ „f niis.iemeanor. J{,i/ina v. (ir,,,,,/ Tnuik
defendant's athdavit referred to the policy m ! ^_ „- ^.^ j- q jj j^i '
suth a way that its existence might be fairly '
interred. Keii'imi v. Oaijan, 17 0. P. 530.
As to certain threats alleged to liave been
uttered by the prisoner : — Held, that they were
clearly admissihle, and if undue prominence
was given to them in the charge, the attention
Where, after conviction for a cajiital offence,
the proceedings were discovered to have been
illegal, there having been no associate judge sit-
ting in court durhig the trial, on motion on be-
half of the crown (the prisoner not moving in
any way), the indictment and conviction, with
the learned judge should have been called to ; ^^^^ prisoner, were brought up on certiorari and
it hy the prisoner's counsel. / />
Remarks as to alleged misdirection, in not
directing that the jury must be satisfied not only
that the circumstances were consistent with the
, prisoner's guilt, hut that some one circumstance
was inconsistent with his innocence. /'/.
habeas corpus, and an order made setting aside
all such proceedings, .and remanding the prisoner
to custody, with a view to a new trial. Jii'i/ina
V. .Siillirdn, 15 Q. B. 198.
Remarks, and review of authorities, .as to gr.aiit-
ing new trials upon the evidence ; Ri'ijiiia v.
The prisoner's witness having stated that Unnlibn, 14 C. P. 32 : Riijiua v. McElmi/, 15 C.
death was caused by two blows from a stick of i P. IK! ; llcijhmx. FIck; 1(1 C. P. 37'J ; lif<jina\.
certain dimensions, —Held, that a medical wit- \llandltun, \{\Q. P. 340; Rvifma v. Seddonn, 16
ness, previously exfiniined for the crown, was i C. 1'. 389 ; Jfvijiiia v. ,Sl((riii, 17 ('. P. 205.
;|roperly allowe.l to be recalled to sti.te that, in : ^^^ ^^.^^^ declined to receive affidavits as
ground for such applications. See liei/ina v.
Crozier, 17 Q. B. 275; I{c>iniii v. Btrkwilh, 8
C. P. 274 ; Ne(/nta v. Filzyerdld, 20 Q. B. 546 ;
lii'(jiuu v. Chiihli,% 14 C. P. 32; Ihijliin v. Jfam-
i'toii, \iiC. P. 340.
It was held, alfirining the judgment of the
Common Pleas, that uiuler the 20 Vict. c. 61,
the court was not empowered to gr.ant a new
trial in criminal cases on any ground apart from
whfvt was done by either the court or the jury at
the trial, such as the .alleged discovery of new
evidence, or a dis.appointment in obtaining wit-
nesses. Eeijina v. (.iray, 1 A. & K. .501.
Kiis opinion, the injuries found on the body could
liot have been so occasioned. 1 h.
Remarks as to the effect in criminal cases of a
lliehet by the jury that false evidence has been
la'uricated for the prisoner, or false answers to
IHnestions. lb.
AMiere an indictment charged defendant with
procuring certain persons to cut trees, the pro-
"jerty of A., B., aiul C, growing on certain land
klonging to them, and the evidence shewed
iiat the land belonged to them and to another
• tenants in common :— Held, that a conviction
jould not l)e supported. Bfnina v. Quiiui, 29
'.B. 158.
i The theory of the defence, on an indictment for
fcnrder, was that the death was caused by the
|»nmumoatii)n of small pox virus by Dr. M. , who
CO
The court was not authorized to gr.ant a new
trial on the discovery of new evidence, or for
the misconduct of the jury. J{e<ji>ia v. Oxentine,
17 Q. B. 295.
'!^ ,1
I ; .'!
I
I 1
I ' i
'i ' ' '
i
!^! <
'947
CRIMINAL LAW.
'm
Upon iiKitioii for a now trial upon an informa-
tion for conNpiracy triml at Sm I'riim ui)on a
rc'coril from the VuL'cn'H llcnuii : Holil, that
ntliilavith madu liy nonn! of tliu jurors tiiat tlie
jury wiMv Mot unanimous, Imt iiclicvud that tiiu
vcnlift of thf majority was wulliniunt, co\ilil not
l)u rucuivi'd as ground for new trial, llnjiini v.
Ftlloirix, WU}. \\. 48.
Wlii'ri; suvoral lU'fi iidants have l>oon convicted,
a new trial, if granted, must he to all. /''.
Where points of law were reserved under the
act, and the prisoner, besides relying upon them,
moved for a new trial, the court refused to grant
it, though the evidence was slight, [{iifinii v.
Jldwhhi, l(i (;. H. (il7.
On motion for a new trial liy a prisoner con-
victed of murder on circumstantial evidence only,
M(»rrison, .1., who tried the case, expressed
himself as not dissatislied with the verdict, and
Draper, ('. .1., having reviewed the evidence at
length, came to the conclusion that there was
enough to go to the jury, and that their finding
upon it could not he declared wrong. Hagarty,
J., held that under the statute a ju<lge is called
upon Old}' to say whether there was evidence to
go to the jury, not to express any opinion as to
their verdict founded upon it. A new trial was
therefore refused ; an(l the court <leclined to
grant leave to appeal, liiii'tna v. Ureciuroud, 'lA
Q. B. --'uJ.
Held, that the withholding from the court
confessions made before the coroner, for fear that
they would prejudice the prisoner, would render
the apjdicatiou for a new trial irregular. Ui-ii'imi
V. FlnkU', 15 C. P. 453.
The court on the return of the rule refused to
receive new attidavita, stating that the deceased
had been seen alive after the elate of the alleged
murder, and thus setting up an entirely new
case, lii'ifinii v. JliDiii/foii, l(i C. P. 340.
One of the prisoner's counsel at the trial,
whilst he was addressing the jury at the close of
case, was suddenly seized with a fit and inca-
pacitated from proceeding any further. No
ailjournnient, however, was applied for, but
the other, who was the senior counsel, con-
tinued the address to the jury on the prisoner's
behalf, without raising any objection that he
was placed at a disadvantage by reason of his
colleague's disability ; it did not, moreover, ap-
pear that the jmsoiier hail been prejudiced by
tlie absence of the counsel alluded to : — Held,
no ground for a new trial, licii'tud v. Fkk, 1(5
C. P. 379.
The rule is the same in criminal as in civil
cases, at any rate where the prisoner is defeii-
tled by counsel, that any objection to the charge
of the presiding judge, either for non-direction
or for misdirection, nnist be taken at the trial,
and if not then taken, it cannot be afterwards
raised, especially where the evidence fully sus-
tains the verdict. Ih.
XXXVni. Verdict, Judgment, and Sentence.
A criminal convicted at a Court of Oyer and
Terminer of a capital felony, may be brought
up to the Court of Queen's Bench for sentence.
Bex V Kcnnij, 5 O. 8. 317.
A defenilant indicted for a uii.Hdriiu.iniMir f„
obtaining money under false pretinics, t;iiiii„t
under ('. S. ('. c. !»!», ». (!'J, be fouml yliji'^. "^
larceny. That clause oidy authori/cK n '^.„.
victioii for tlie misdemeanour thoii;;li the fii,)
jiroved amount to larceny. Itiii'mii \ A',,;,,,,' .,;
(,>. M. 5-.'3.
Where a defendant on such an iiidictinciit 1|,
been found guilty of larceny ; -HiM, tijat t'
court had no power under ('. S. I.', ('. ,. | |.i
3, to direct the verdict to lie eiiteiiil as iiih'
"guilty," without the additional \\ii\\\n, II,
On error brought, it was lltlci, that nn t)
record of a conviction for nnirder tiic aiithnri';
of the juntice sufhciently ap]uari(l, « itlnuit am
statement whether a commission had iMsiad ,,•
been dispensed with by order of tiie I'livfiiiif
for such courts are now held, not iiiiilw'oiiiiiin.!
sion, but by virtue of the V. S, I', c, ,. |{ |,
amended by •_>!) & .SO Vict. c. 4(t ; lunl a.s 'tl,i
record siifHciently shewed the alwentv nf am
commission, it imist be presumed that it soi'iutil
best to the governor not to iNsue inii'. SiniMt
that if the court had been held hy a ijMit.fii<
counsel or (,'ounty t;ourt judge, it'iiiJMht \m\
been necessary to shew whether a iiiiiimissiMii
had iss\ied or not, as he would derive liisaiitlini.
ity from a ditt'erent source in each oi tliv tw.i
cases. Seinble, also, that if the ea[iti(iii hml i^tu
defective it might have been rejected alt(M'otlitr
under ('. S. U. C. e. lUt, s. .VJ. W/ir/.m v. h,,;,,,!
28 (.). B. ±
The crown may issue a ti. fa. for the sale d
lands and goods in order to satisfy a hnu im-
posed ; and the person lined may he saiil to U
indebted, and the hue to be a debt. Jliii'mu v,
Di'ijanlinfi C(tiinl t'li., 2'.) (j. K H\:t.
Lands and goods nuiy be included in tla'same i
writ, and it may be made returiiahle hefure the
expiration of twelve months, the crow n imt Imu ■ |
bound by the 43 Oeo. HI. c. I. //..
This court or a judge may at any time inter- 1
fere, as exercising the powers of the Cimrt ni
Kxche((Uer, to restrain undue harshness or liiistc
in the execution of such writ, althuiigli what u
complained of may be strictly authnri/ed. /'■.
Held, per .1. Wilson, ,]., that the Imiitrial
Mutiny Act does not override the ('. S. (', c.
100, but that the latter was passed iu aiil nf it.
and is therefore in force. I'er A. Wilsmi, .1..
that the punishment by hue ninl iniiirisdiiineiit.
imposed by the provincial act, stands alidhsliw!
as long as the Mutiny Act is in toree, ami tkt
the imprisonment can in no case exeeeil six eal-
endar months ; but that the power df trial k
the Court of Oyer and Terminer, nmler tlie
provincial act, has not been taken iuvay iiv tlie
Mutiny Act; and therefore that the ilefeiiii.iiitm
this case couhl not complain, as he iiail heciitrie'l
by a tribunal of this kind, and .senteiieeil to no
longer imprisonment than the last nieiitioned
period ; and that though a line of lOs. liailaLw
been imposed, for this was merely iKuniiial, in
compliance with the provincial statute, ami
would not entitle him to be diseliaiveil, as the
court had power to pass the proper jiidgiiieut,
if an improper one had been given. J!i'jm\.
Shmnan, 17 C. P. 1(5(5.
8ee In re Brhiht, 1 L.J. N.8.240, i'. I'l'l
Reiilna v. Tierwii, 29 Q. B. 181, i). 1«1); (Vr
imll V. Eeijina, 33 Q. B. lOU, p. 0311.
llifiinnur It
iit'i's, caiiii.i'
111 ;;iiilty -:
iiizi'K ii i.iii.
,lgh tin: far',1
V. Miriiiij, 'il
iilictinuiit h*!
Iflil, that tilt
;.('. c. ii'j,,
iivil as iiiH'
,\cil(ls. /'■.
il, tlL:it mi tl/
till' U\ltl|nn!l
I, witlimit ;iii;
liail issuuil I.'
tlic i^iivcrii'ir;
miiUi'ciiinmi--
r. C. c. 11, as
W ; ami as tlit
iiUsijiicL' cif Mi;
1 that it st'uliM
_■ line. Suinlilt,
111 liy a t^ifiii'
I, it mi^lit h;iv(
;i' a ciiiMUiis.*ii'ii
crivu hisautlii'!.
eafli lit' tlif tw.i
jiHitimi liail litiii
uctuil altu^ctlicr,
I'/ic/cH V. lifjim,
I. for tliu sale oi ■
satisfy a tine im- j
my In; saiil t" \k
debt. yi',';i"ii V,
Km,
luik'il ill till' same I
nialilL' liffiiri- tlio |
liucniwiiiiiittiuii;;
it any time iiitef- ,
H (if the Ciiiirt "i ,
larsliuess nv liastt
altliiiugh wliiit is
aiitliiiri/.eil. '''•
hat the Imi'i™'
If the r. S. Cc.
.sseil ill aiil ">' it.
;r A. Wilsiiii, J.,
Ill imiirisiiiuiieiit.
, staii.ls aholishwl
in force, amltliat
isf uxeeeil six cal-
,„\vei' iif trial l>v
liner, iiii'lei the
ken away hv tlie
tthetlefeiulautm
Hhehailheeiitnrf
,1 senteiioeiltouo
liu lust meiitwnw
To, if 10s. hail aLw
Lrelv uoiiiiiwUj
Iciarstatuto, anil
lliscliargcil,astlie
liirolier jiulgiM"'-
|given. Rxp'"'
S.240, 1'. ("■'
Isi, i).y39; t'"*
li. 'J3'J.
94D
CHIMINAL LAW.
o:»o
XXXIX. KlIROK .\NI> AlM'KAI.,
The iiiii|ii'r iiidi't'i'iliiig to revcr.su a jiiil^jineiit
,,f tlie I'liili't "f '^"ll'ti'l' St'S«i<iii» is liy writ
ii'f erriir not I'.V fcrtioniri iiiiil lialiuiM corpUH.
}{„/„., V. r.Mll, -21 il B. '21SS.
The iittoriu'y-m'nt'nil rofiisuil his tiat for a
w'ituf eniM- ill thin case, upon iilijuutioiis takoii
tii the imliitnieiit. Niijiiiii v <1 ri'iui'itiul, •_>:) (^,
B. 'j.'iti, iiiite ".
Kri'iii'. ai* ilintingiii'<iieil from ajipeal, will lio
in a eiiiiiiiial eii«e' t'loiii thu I'oiirt of Krror ami
Aiipial til the l^iiL't'ii'w Hench, ami the writ of
crriii' i»''.v '"' '"* ""-'•"''.>' "" I'lissil'ly •" the form of
n writ iif apiieal given l>y the orilers of tiie court
inililisheil in KS">0. //'■,'/(''<« v. Wlirloii, '-'8 Q. B.
m. See.S. f. -'SQ. »•-'•
Aiiiieals, iiiiiler C. S. IT. (,'. c. l.S, s. 20, as
(jjjjiiigiiisheil from error, are in criminal cases
emitiiieil tn such as arise under the act respecting
new trials in criminal cases, '20 Vict. c. (il, now
C, S.U. C. c. U.S. /''.
The ciiurt will not arrest judgment after ver-
dict, iir reverse it in error, for any defect patent
on the face of the indictment, as hy 32 & 3.S
Yiot c. -!t, s. 'W. "'i^^l' "Icfect must he objected
to hy ilemiirrer, or by motion to (luash the
iiulictiiiont. Uiijina v. Maxoii, 22 C. P. 24<).
Whether the T'olice ( Vmrt is a court of justice
within 32 & 33 Vict. c. 21, s. 18, or not, is a
(luestiiiii of law which may be reserved by the
judge at the trial, under C. S. U. C, c. 112, a.
hand where it does not appear by the record in
error that the judge refused to reserve such
(|Uf3tion it cannot be considered uiJon a writ of
error. Hi.
J.lSliO Vict. c. 4.') had in view and recognizes
the right of every man committed on ii criminal
charge to have tlie opinion of the judge of the
iiilieriiir eiiiirt upon the cause of his commit-
ment hy ail infcriiir jurisdiction. /iiiiiiui v.
J/wVr.'-lP. 11. M.—C. L. (,'hamb.— ,r. Wilson.
ke IHnm v. Coulter, 13 C. V. 299, p. 941 ;
Jft/iHdv. Kumdii, 2(i (} B. 32t), p. 940 ; Rojina
;v..l/to-H, •iyti. B.431, p. 931.
XL. Costs.
Upnii iin applicatiou for a rule to tax the costs
bf priiceeilinga mi an indictment for nuisance in '
fcbstruetiiii; a highway, under .5 & 6 Will. & Mary, '
. 33, and that they should be allowed to a par- ■
kcular jiersim, the court refused the rule. A
tale har rale is granted in England to tax these
)sts as a matter of course, but this ap])lication
fent further. lU'ijhiu v. Gordon and Bvi/ina v.
pmm, 8 C. P. 58.
XLI. Bail.
I The court refused to discharge a prisoner on a
wbeas coqnis, charged with having murdered
•is wife in Ireland, communication having been
ftile by the provincial to the home government
(the suhjeet, and no answer received, and the
boner having been in custody less than a year ;
Id bail m such a case will not be allowed until
pear from the time of the first imprisonment,
»hough no proceedings have been taken by the
lovn. Rn V, FUzgerahl, 3 0. S. 300.
.\ prisoner in custody for grand larceny may
bi^ admitted to bail. AV,/' v. Jniir^, 4 <>. S." 18.
A prisoner charged with murder may in some
cases be adinitti'd to bail ; and on such .an appli-
cation the court may look into tiie infurniation,
and if they lind good grniiiid for a charge of
felony, may remedy a defect in a coniniitmcnt,
by charging a felony in it. //(./■ v. ///'/i////*, 4
t). ,S. 83.
Although a statute may require the presence
of three justices to convict of an iiU'ciicc, yet one
has power tn bail the otlender ; ami a second
arrest for the same charge, by tile same com-
plainant, before the time appointed for the hear-
ing, is illegal. Kiiii/ v. Orr, .'i (). S. 724.
Held, (before the jiassing of l(i X'ict, c. 179),
that magistrates were not liable for refusing to
admit to bail on a charge of misdemeanor in the
almence of any proof of malice, ('nnriii/ v. Mr-
Ki'niici/, 1 1 t^. B. 439. .See MrK'ndni v. Miiimic,
15 (;. p. 2.30.
Where the prisoners were convicted at the
sessions of felony, and a ease reserved for the
Queen's Bench, whic'-. had not been argued, the
judge in chaniliers refused to bail except with
the eimsent of the attorney-general, /{ii/inii v.
^f';/', 2C. P. 1.38.— C. L. Chamb. -Kobiiison.
The guilt or innocence of a prisoner is not the
question to decide on application for bail on a
criminal charge. The seriousness of the charge,
the nature of the punishment and evidence, and
probability of the prisoner appearing to take his
trial, are the important (juestious to be consider-
ed : — Hehl, where it was shewn that the prisoner
attempted to bribe the constable to allow him to
escape, that the pr(d)ability of his appearing to
take his trial was too slight for the judge to
order bail, liiii'mn v. Bi/rnc.% S L. .1. 70. — (J. C.
-Hughes.
Bail refused, although it was some months
before a criminal court competent to try the
case would sit. /I>.
On an application by prisoner in custody on a
charge of murder, under a coroner's warrant, to
be admitted to bail, it is proper to consider the
probability of their forfeiting their bail if they
know themselves to be guilty. Where in such
case there is such a presumption of the guilt of
the prisoners as to warrant a grand jury in find-
ing a true bill, they shouhl not be bailed. The
fact of one assize having passed over since the
committal of the ])risoners, without an indict-
ment having been preferred, is in itself no ground
for bail. The application is one of discretion
.and not of right, the prisoners not having
bnmght themselves within 31 Car. II. c. 2, s. 7,
by applying on the first day of the assize to be
brought to trial. lieii'mti v. Miilhub/ H al., 4 P.
R. 314.— 0. L. Chamb.— Draper.
Where a prisoner applies to a jutlge in cliam-
liers to be admitted to bail for an indictable
offence, under C. 8. C. c. 102, s. (53, the copies of
information, examination, &c., maj' be received,
though certified by the county crown att-irney,
and not by the committing justice. Heqina v.
Ghamhn-lain, 1 L. J. N. S. 157. —C. L. Chamb.
— A. Wilson.
The evidence in this case warranted the mag-
istrivtes in requiring bail. Ri'ii'init. vMonier. 4 P.
R. 64.— C. L. Chamb.— J. Wilson.
■
1|, ^m
::! M*
, I; Ii'.
.Hi
m
;^m^\ -^
951
CROrS.
S.ii
Wlicrr :i in'i.tiiiirr iliiii'j,'<'il with fclmiy tiiul
lii'i'ii iiiliiiitti'il til liiiil iipcit) III) cii'ilir lit' II .iuil):c,
iiiul .'111 iiiiiiliciitiipii wan mil>Nci|Uciitly in.ulc to
ri'Mciiiil siicli ciiiliT, mill til iTi'iiiiiiiiit till' iiriHiiiicr,
«m tin- K''"""'l'< 'lii't I"' I'""' ""'■ '"'^'" I'i'iiiiiiittiil
for triiil lit the tiiiic mirli or.lcr whh >,'iiiiitt'il, iiiul
that tlic liiiil |iiit ill wiiM lii'titiiiiiN : ll>'l<l, that
a juik't! liad |iiiwiT tn make tlif mih'r iiMkcil I'lir ;
Itiit tlir link'!- ill tiiiH caMc wan ciiinlitiiiiial u|iiiii
tlif failiiri^ of thi' priMoiiur to timl iii'W uuri'tiuH
witliiii a KpL'ciliiil tiiiio. /'ii/iiin v. Mninii, .') 1'.
K. 1-5.-0. L, ('huiiih, Morriiiou,
XLII. MlSlEI-LANKOlH r'AMKM.
A writ of cxigi fai'iaH will be orderetl by this
court iiiioii tiu' aiijilicatioii of the iiroHecutor,
witiioiit itH boiiig apjilit'il for by the iittoriit'y-
geiioral. lifx v. lilnul, 'lay. I'JO.
A bench warrant iHHiieil at the (Quarter Ses-
uiont), tested in o{ien HCHsionH, and Higneil by the
clerk of tlie iieace : Held, not invalid for want
of a seal, t rtitu r v. JJirLnoii, .") Q. B. '2'M.
A proceeding by gci. fa. on a recognizance to
keen the iieace ia n civil, not a criminal, pro-
ceeding, lii'ifimt V. Shi/)iiHi)i, (') L. .J. 1!*. — L . L.
(Jhamb. — ICobinMon.
The otYence of possessing distilling apparatus
without having made a return thereof, contrary
to the Inland Hevenue Act, 31 Viet. c. 8, s. 130,
is a "crime." Jff Lticcm ami McGlaxhuii, 21) Q.
B. 81.
The legislature of Ontario having passed an
act to regulate tavern and shop licenses, 32 Vict,
c. 32, under the jiower given to them by the B.
N. A. Act, 18()7, 8. 92, sub-ss. !), 1(5 :— Held, that
they had power under sub-f. 13 to enact that
any person who, liaving violated any of the pro-
visions of the act, should compromise the offence,
and any person who sliould be a party to such
compromise, should on conviction be imprisoned
in the common gaol for three months; and that
such enactment was not opposed to sec. 91, sub-s.
27, by which the criminal law is assigned exclu-
sively to the Dominion parliament. Ji'ii/iini v.
BoardiiKiii, 30 Q. B. 353. ' j
I^awful acts of war against a belligerent can- 1
not be either commenced or concluded in neutral
territory. /« )•<■ liurlnj, 1 L. J. X. .S. 34. — C. L.
C'hamb. — Richards.
The schedule fvppended to C. .S. U. C. c. 120,
was not intended to embrace all tlie expenses of
criminal justice chargeable against the govern- ;
ment, but only to remove all doubt as to those |
speciried. Thi' Corpora/imi i>f Ihf County of
Lanthtoii v. Pomsitt, 21 Q. B. 472.
A coroner's jury found the cause of a death
into which they were entpiiring, to have been
ilisease, adding that it was accelerated by an
overdose of certain drugs taken in excess, and
improperly compounded, prescribed and admin-
istered by one P . as a cholera preventative ; and
that F. was <leserving of severe censure for the
gross carelessness displayed by him in such com-
pounding and prescribing. This inquisition
having been brought up by certiorari, granted
on the application of P., the court reftised to
quash it, holding that the imputation which it
contained, not amounting to any indictable
offence, gave him no right to have it (juashed,
ami that, undir the ciri'uniHt.iiin.M, piililif l|„.,
did not rcqiiin' their intiifcreiir... [\^y_^^
wlietlier the illliilavits wire plnh. i|y I'lilitlJ
The <Vii<'en, plaiiitill', v. Iti.bert t'liili.y, i|,.u
ilaiit. Ilojimi v. Fiiil'-i/, 24 (/. H. 3.*t4. " '
Held, that tlie great inland lukes i,f r,,||,,|,
are witliiii theadiiiiralty jiiri.>iiliitioii,,iii,l,,||,.|j'
committed on them are as tlioiigli . Miuiijitw
on the high seas ; and therefore aii\ iiiii^;i,traii
of tiiis provinei' has authority in iiiiiiiirf mii
oU'ences committed on said l.ikrs, .•ihlii.i|..|,
j American waters. I'li/inn v, Slmr,, ; T. f
i;W.— C. L. Chamb. .\. Wilnon.
I lieturns of convictionH and liiie« ii.i iin.,;,,,
I ofl'ences being ^overMcd by the l»oiiiiiiii,|| ^tr
I ute ;<2 & 33 Vict. e. 31, s. TC, ami net l.y tlii
Law Heform Act of 18()8, are miiy rii)uiii.ii'(i,i,
j made semi-annually to the (inieial Si's^imn,
I the peace, tjlinti hh i|. t. v. /Inm r, ' | ,) V <
; I2ti.— C. C— Hughes.
Seinble, that the right to lej^JMlati' ujn.ntlii
subject, belongs to tlie Dniiiiiiioii [liuliamt],.,
and is not conferred upon tlie pniviiaja! Irajli
ture by the H. N. A. Act, I8(i7. //..
I The owner of the shop i.s eriiinmilly liiililtf„
any unlawful act done therein, in Ih.h ulmtnc"
by clerk or assistant ; as, tor iiistiimc, In thu
case, for the sale of li(|uor witliotit liiuiHc liyi
female attendant. .Secus, semliji., if it ii|i|n.art.l
that the act of sale was an isnlateil nm., wlmllj
unauthorized by him, and out of tin- uiilinar;
course of his business. UKiinn v. K'nui ''n (
P. 246. ' ■
CROP.S.
I. RllJHTS OK TkNANT.S-.V<( LaMiI.iIUi .i.\[i|
Tenant.
A party purchasing a crojmf wheat at sluriff's i
sale may iiring trespass agaiimt a inisniunn.f
verting or injuring it, thoiij,'li \w in.iy iievtr)
have received possession of tiie liiM. IliuiU \
V. Cnni'/unf, 3(). .S. .58.'}.
Liberum tenenientum to a ilcLlaiatiiiii in trts-
pass <]. c. f., and for carrying away tlio iilaiiitifi |
nay and corn, is bad on deiiiurivr HVAvv,
Moiitiiiiiiicry, 5 (). S. 312.
Where the owner of a lot of lainl eminicy
upon an adjoining lot belonging to tliiimsii,
and took three successive crops uli it nitlioit j
any permission from the crown, and aiiutief ]
fierson who had taken po.-i.sessimi nt tlic jime
and also without license about ten years Iti'w,
and paid taxes and made clearings mi it, w,iiiieJ
off the owner of the other lot after lie liad taken
I the tiiird crop, and then cropiied tlie hiii'l liim
I self : — Held, that the owner of the ailjuiiiiiijlot ;
I had no property nor possession to maintain tres' i
I pass against him for that crop. KHMnm v. :
Jiohftrtwii, G O. S. 408.
Where a devise was made to tlie iil.iintiff of j
half the fruit which might gnuv ini .1 '.'ertainj
farm devised to another party, ami the litter j
gathered the whole of the fruit and disinwlof I
it for his own use :— Held, that an .utionofj
trover could be maintained. Taijtoi' v. .)*«/,
6 O. S. 549.
0.?.
•». I'Ulilil'lu.tKt
rt'ii'v. (^„iiT»,
•<M'' rly I'lititU
5. :».H4.
hike:. ..( ('•,11,1,1,
ti<>h,;lll>lii||c'|Kr4
mgli ■■ntiiiintw
I' any iimniiitrali
111 fiiijuiri' m
ii'N, .'iltliimuli 3
>'/""■;•, .•• 1'. L
111.
[iiR's tnr I'rimiin
i< iKillllliloli sUt
1, iumI not liythi
Illy n'i|iiiruiltni(
I'lii'ial Si'»»iiin«"'
iiiif, 7 I.. 'I. N. !>
cj^isliiti' iijHiti thi
iiiinii |uirliaiueii',
JllMvilU'illl l('|,'isll-
-iniiiially liiilik k
ill, ill luK iitistnc",
r iiiHtiiiu'i', ill tlm i
itlioiit liii'iist liyi I
iililc, if it miiiwirfi j
iiihitLMl ciiii', wiiiiUjI
lit iif till' iirilinarj]
'liiii V. K'liij, '20 C.
or>i
CROPS.
O.!!
l,AMil.iil(Li .1>dI
Wlll'llt llt^lllrill'!
list a jiorsnii cull' I
\\v. may ntverj
I nil
(leclaratidii in treS'
iway tliu iilaintiii i
iiinvr. ir"''".f V. I
ul liiiiil I'liivwli*! 1
igiiig til tilt iTiraii,
rolls cirt' it wittat
Tdwii, ;iinl '"'*'
iossimi (if tk «
lilt tt'uyi.'ai's'«'"f*i ,
ivriiigs I'lii it, iviraeJ i
; after lie lia'l taken ;
,,j,c,l the laml him
i,f tlieailjiiiiiiiiglo'
111! tiiiiwi"t:"iit'««"
.■mil.
K'Sflm V.
t,i the iilaintiffof
Irty.amlthelato
luit ami ilispi'se'i »
that an actioiof j
Tduhr V. .V»N'i
Whciv till' iilaiiitilV ami ilcfiiiiiaiit Iiimii^< laili
i).i».'Wil"' " '"''"' ''K''''*^'' t'l wiirk tlii'iiitiiuctliir
',,,,1 J. villi' till' iHiilit" aii'^iiiK fii'iii tlx'iii nt tlif
'.111 n, 'i' neaHiiii, mill litit'iirc the liarvcMt ilft'iii-
'i'lit ' '- 'iiitHi'-""''! "' ''•'* ''"'"I ''.V t'jf'tiiii'iit,
Iiihlthe 1 .iiitiiniii'ri'in>i'ii K>^'' '•'"' »"ti'''' tli"^
1,. wuiilil ii"!' iliviili' hi'* i'r"l'« « itli liiiii, imt-
uitlistiiHiiim "li'''' ''"' '''■•'■'"'''"' ''iit.Ti'il till'
iiluiitiir'* f.iiiii "'"' '""'* ''"'^V '•''' «l'i"''' "•' t'"'
I'niir lli'lil. that II. I' pliiiiititJ t'liiihl imt iiiaili-
ta'i'ii tii'^li.i'*'' agi'i'"*' ''""• "'''"•/' v. Moriiimi,
m II. 1 411.
\Vlii'ri'iiii""''K"K"'' '" I'l'SHeBHion, nfturilufniilt
j,|,, in pav lit lit' till! lliiirtKiiKu nuilU'V, re-
a'ivcilahtur tiiiiii tliti iiiiu-t>,'agfc, who wax in
fiiieiiiii eiiiiiitiv. ilircittiii),' linn to imt a siiiiiiK
itiiii iiit'i the iaiiil. iinii'ss he lami; into thf
oiimtrv ill tiiii'' •'"'■ ""' '""••tK'W"' tn r.'inovf in
jl .jifiiur, ,iiiil 111' iliil not ciiiiii' until the Minn
iiur lli'lil. tliat iiotwitliMtaiiilinj,' tln' relation
iHtwiiiithr |iartii'sof mortgagor ami iiiortgaKi'i',
the ililVmliiiit I'lii'l'l 11"'' ''L' titnii'il iiiit of (losMoH-
Huiiiil the lainl while' crojis wi'i'ii growing, mn-
witimiit a ih'iiianil of |ioNsuH»i(iii. />««' d. I'ult, ,■-
«o„v. /.Vii/i'i, H. T. (I Viet.
hitriiver fm' whc.it re'ain'il ami cl.iiiiuMl liy the
(hldulaiits an of light hehmging to them, as an
awav-nniiii,' eiii|' after tlii; cxpiratioii of a least'
fur seven vears, the lilaintiH".s witnesses [iroveil
a new leiise ill 1 mK "' the iireniises to a
thinl iMity, fri'ii M' exiiiration of the defen-
iUiit> lease, hut thu new tenant swore that he
\vA 11" liijlit til the eroii ; llehl, that it was not
lur-aiv fill' the jilaiiitiU' to iiniiliice the new
lease. h<irriii'-'< v. ('(lini-'t (' ul., '2 Q. 15. I'SS.
Willie there is a stipuintion in n lease for a
teiiiueitiiii tiiat the lessee shall ileliver np all
the laiiils ,it the expiration of the lease, all (pies-
tiiiii a^ t" eiistiiiiiarv right of the away-going
trniii is exehlileil. /''.
Siuililf, that there is no custom of the country
as tithe away-going crops in rpperCaiiaila. //<.
riaiiititV ami ilcfeiulaiit owned adjoining lots
, nitli a I'eliee lietweell tlielll suppo.sed to he on
tlieilivi>iiiii line. .-^ correct line was, liowevcr,
mil. ainl ilefeinlaiit was foiiml to he encroaching
Slime aeres (ill the plaintitl'. The iilaintiH' took
wissessiiiii iif the ilispiiled piece under a [irotest
frnm tlie (lefemlaiit, and cultivated it. When
I the einii was tit to cut, the defendant entered
[niidtiiiifc it away : -Held, that the ]ilaintitt' had
biu'ha iiiis.sessidu as would enable liini to inaiii-
Itaiii tresjiass. ddUiiijInT \. Urtuni, 3 (^. B. 3,")0.
.v., living ahrnixd, sends to an agent in this
ipriiviiiee tn ]iuieliasc a lot of land for IJ., who
|*.is living in the province, and to take the con-
Ivcyaiiee t(i himself, A. This is done, and ]J. is
mit in iiiissessimi (if the land, who from tlience-
ilurth uses and cultivates for his own henetit.
|At the time (if inirchaso a crop of wheat was in
Ithe jjrdunil :— Held, that B., and not A., should
|iue 111 tresjiass fur cutting and carrying away
|the wheat. Oimiilull v. CiiMltiiKni, 4 Q. B. 9.
Qiwre, iliil the property in the wheat belong
|toA. orB. lb.
Tresjiass to the south parts of lots 14 & 15, and
iaking ami converting wheat and straw of the
Iplaiiitiff. Plea, leave and license generally. In
liuininit of this plea, defendants proved a deed
|maJe by i.laintiff,20tli February, 184C, whereby,
in ciiiisider.itioii of C'JS ii'ciiM'd frmii defendant
T., he liai'gaimd and sold to him, aiming other
thiiiKs specilied, twenty acres of w licit then
l^riiwing on the siuitli part of lot II, and in the
plaintill's iiiissession. The pliiintilV bargained
and sold all thcH.iid twenty acres of wheat, with
the riulit of ingress and egress inti .iml frinn lot
II, to harvest .'ind remove the s.iid twenty acreii
of wlie.it. Then followed a piovisii, that if
plaintitl should pay to I'. t'-H, with interest, on
a day named the deed shoiihl be void, {'lain-
till' covenanted to nay the imuiey, and it was
stipulated that until default )ilaiiitilt' might re-
t.'iin in his possession and use the ;,'oiiils and
premises niortyaged, unless he sliiillld before tiie
d.'iy of p.iyment be sued by any other jicrson, in
which ease T. nii^lit take and eiijov the said
g Is .'IS bis own : Held, that defcniiaiits niiiNt
tail under their general plea of leave and license,
the deed giving no right of entry on lot 15.
/.iiiiii V. Tiirnn', 4 i). H. 'I'A'l.
•Seiiible, that if the license to enter on lot 14
gave a right to enter on lot l.'i as being necessary
to the privilege granted w ith respect to lot 14,
they should have in a special pha set fortli the
iiecessit,v. Ih.
Held, tint defendants must fail, .ilso, .is the
license was not to enter and take the |,l.iintitf'8
wheat, but to enter for the purpose oi taking
the defendant's wheat. Hi.
Seinble, jilso, plea bad, as tlie li ■I'tise proved
was conditional and not absolute. I'liere should
have b('en a special ]>lea shewing ilefault in pay-
ineiit by plaintitl' on day iiameil. //).
Scmble, that the only right the deed gave the
defendants, was to cut and carry away the wheat
of the plaiiitill'; the defendants had no right to
enter on the iilaintill's land and take the wlieai
awav bv force after it had been cut and stacked
by plaiiititl". //..
< Jrowing croiis on the land of a te-stator may or
may not be assets according to the contents of the
will, which was not in evidence, rndeiordinary
circumstaiu'cs tliev go to the executor, and not
t I the heir, but if the land on which the crops
were growing was devised by the will, that
would in general make tlit! cro]i8 go with the
land. /■'/.</((•(• V. Trill iiiini, 10 ^). H. (ilT.
liy deed of conveyance of all and singular that
certain parcel of land, ite., together with the
houses and easements, prolits, privili'ges, liere-
ditanieiits, itc, to said parcel of land belonging
or in anywise ai)[)crtaining, and all the rents,
issues and profits thereof, iVc, growing crops in
the ground at the time of the execution of the
deed will pass to the grantee. ]] noil v. Lang,
:> ('. V. -204.
A person having become purchaser of land
under a sale in Chancery, and having received
possession on condition that he allowed the
wheat and straw there to be removed, does not
j aciiuire any legal right to the straw^ as emble-
ments under such purchase. O'Dill v. ('oijnp, 4
[ C. P. 4-)-.».
In trespass to land, where the action was
brought on the 7th of May : — Held, that the
plaintitl' might recover to the extent of the ultit
mate injury resulting to the crop from the ac-
eomplained of, as ascertained at the time of
harvest. Tliroop v. Fowler, 15 y. B. 365.
i n
:i
y
:t
wm
^m
955
CROPS.
I ;
95';
Where a slxeriff, acting in good faith for all con-
cerned, agrees to pay for having grain tlirasheil
for the purpose of its better sale, the expenses
of such thrashing shouhl be allowed him. Gal-
braitli v. Fortinii', 10 C. P. 109.
S. A. before the marriage to C H. her present
hi'sband, (on the 1st of April, 1857,) leased cer-
tain lands to the defendant by the year, one-
third of the yearly crop to be paid as rental.
To a declaration claiming the non-delivery of the
crop aa agree<l, defendant pleaded, thirdly, that
on ITtli Ai)ril, ISliO, the lan<ls in (piestion were
Bold under Chancery sale to one D., who paid
his deposit ami signed a memoiandum, and
there]>y became entitled and entered into posses-
sion, and took and converted one-third of the
cro]) to his own use, whereby he, the defendant,
was prevented from furnishing the same : — Held,
that 1). being only an inchoate purchaser, he
was not entitled to tiie crops, and therefore that
defendant was liable on his contract. Ifirhanl-
son ct lu: V. Triiidcr, 11 C. P. 130.
A. and B. contracted with (". to put in the
crops on a certain farm, and to do all the neces-
sary farm work thereon for the whole season,
and for which they were to have one-half of the
crops for that year. Under the contract A. and
B. sowed a quantity of wheat, and B. having
absconded, his interest in the wlieat while grow-
ing was s(dd under an execution issued on a
judgment obtained in the Division Court against
B. at the suit of L)., who became the purchaser
thereof. A. subseijuently sold all his interest
and that of B. in the wheat toC, who harvested
it. 1). having brought an action of trover to
recover the one-(iuarter of the ([Uantitj' of the
wheat, claiming to have become the owner of
that portion of it bj' purcha.se at sale on the writ
of execution from tlie Division Court: — Held,
tliataa between A. ami B. the contract was joint,
and that trover by D. for the one-ijuarter sold
to him under the execution against 15. was not
maintainable. J'<ir/,-v. J/intiji/irc;/, 14 C. P. '20'.).
H. by agreement with defendant planted six-
teen and a half acres of defendant's land with
Indian corn and other crojis, the agreement being
that H. was to do all the work, and defendant
to receive for his share as much Indian corn as
should represent the portion of the laud sown
with sugar corn and potatoes, and one-third of
the Indian corn, an<l that H. was to have the
remainder. Subseijuently, H. being indebted to
the plaintiff on a note, sold his interest in the
growing crop to the plaintiff, the price being
allowed on the note. At a later i)eriod H. exe-
cuted a bill of sale of the crop to the defendant,
who afterwards claimed tlie entire crop as his
own, and harvested it ; — Held, that H. and
defendant were tenants in common of the crop
of Indian corn : that one tenant in connnon can-
not maintain trespass or trover against his co-
tenant for merely reaping and harvesting the
crop ; but he may, if his co-tenant has consumed
the crop, or dealt with it so that he cannot
retake it or pursue his remedies against the per-
sons who have possession of it ; and that under
the circumstauces of the case the court might
assume after the verdict, in the absence of any
question raised on the point, that such events
had happened as entitled the plaintiff to main-
tain his action against the defendant for conver-
sion. Bradi/y. Armtltl, IOC. P. 42. See, also,
Culver V. Mucklem, 1 1 Q. B. 51.3.
nlw.m,!,
ii'oiii it.
't wlk'iit
I'.V thf
I against
mild i,ir
'n'twwii
Held, that on the finding of the jury in tliis(.a>(;
the plaintiff must be taken to have paid thu fui'
price of the crop at the time of the baif,-;ii], f,,,
its purchase, and the delivery being as ccniiiil^.t
as the circumstances would admit i if, H. s intiit,!
passed at that time to the iilaintiti, ami (.niiij
not be divested by the subsecpient sale tn dul'fn.
dant. Jii-ddi/ V. A molt/, IOC. P. 4l'.
D., in November, 18(i2, took land t'ldm dtiYi,.
dant's agent on a written agreement t(j ckar ?„
much a year, getting certain crojis, ,uid all tlit
timber, exceptnig pine of a s|niiiii(l sizf. In
.luly, 18t>3, D. wrote to the pl.iintiH' tli.it if he
would complete the clearing uihIit this ,iiTiiii>'f.
ment, and deliver to 1). .SIO wortii ui' ii '
he should have all the bciietit arisin"
Under this the plaintiff claimed a iI(j|i
sown in the fall of 18(53, and seized
sheriff in July, 18(i4, under an excciitidi
D. t)n an interpleader issue tlic juiv I'
the plaintill', negativing any fraud iis
him and D. : — Held, that the ]ilaiiitili' cimld
have no title to the land, for the aL'ivcUKiitwitli
D. and assignment to the ])laintirt', not liiinir ),;
deed, were both void, uniler C S. ['. V.,^'.<\(\
s. 4; but that having liecn let int'i ]Hisse.ssi(iii
by D., and having cultivateil the laml ten- hij
own benefit, and at his own expensi', it luuld imt
be held that the wheat, which was an iinkiitn.
<lent chattel, not within tlu^ statute, was ilet'tii-
dant's property ; and that the verdict, tlaMeturi',
nuist stand. Ihxjau v. Ben-i/, 24 Q. B. ;)4(i.
Though a sale of laud may be fraudulent as
against creditors, still where the cvidciiitsliiwe.l
that the execution <lebtor (the vendor) h\(\ nut
raised the crops, the sidiject of the suizurt'. (ir
furnished the means of doing so, Imt tliu Inlmiir
and means had been contributed by tlif vimlce
alone : — Semble, J. Wilson, .1., di.ss.. that tlit
crops were the sole property of the vemUf as
against the execution creditur. Kilhrhh v.
CuiiK-i-oii, 17 C. P. 373.
Declaratiim for breaking and cnt'iing the
plaintiff's close and cutting and can yiiij,' awav
the grain. Plea, on eijuitable giduiuls, that the
plaintiff' held the land under an iinhiitinv ><{
lease from defemlant, on the iiegdti.-itinii inrainl
execution of which it was vcrljally ai,'i«il
between them, and the true agreenniit was, tkr,
defendant should have tlie light to iiitii' aii4
harvest the crop then in the ground sdwcil In
him ; that when the lease was execiitid ,i iisu
vation of such right in it Ava.s sugmstcd. Imt
omitted on the plaintilf's assuiaiKv tliat it was
unnecessary, as the agreement lictwfin tlidii
was well understood, and detcnd.uit Mdiihl I*
allowed to take the crop; and that tin' iiitrv,
&e., in pursuance of such agreeiiuiit, is tlu' tres-
pass cimiplained of : — Held, that tlii' [ilea «as
good, for the independent veilial a).'riTiiieiit,
made in consideration of defendant signiiij,' the
lease, was good ivs an agret'ineiit, tli(iuj.di defen-
dant by the 4th sec. of the Statute ul I'raiiJs
might be prevented from .suing on it ; ami as
e(iuity in such a ease would decivc sjiciilie per-
formance, there was ground fur a |iui]ietiial
injunction against this action. MrtHiiu'.'x v.
Ketineilii, 29 Q. B. 93.
Quwre, whether the plea was not also a justi-
fication at law, as under an agioi'iiifiit which
was valid to protect the defen(l.iiit, tiimigli he
could not have enforced it by action. /''•
957
CRO'.VN. 058
\'M
III cai'i'viiii; iiwav
:ui iiiik'iitmv 111
uiitiatinii I'liriiii'l
it til I'UttT aiM
u'lduiiil siiwnl liv
li'xuciitiil a ifStT-
lis siigiii'stfil. lint
liiUKr that it »as
M lietwci'ii tliiiii
Iciiilant wdulil 1«
lunt si,i;iiiiij; tiie
lit, tli(mi;li ild'tii-
Itatuto lit l-'niiiils
The owner of property sold and took a mort-
irai-e to secure payment of the purchase money
bv instahneuts. Default liiiving been made in
imniicnt of the first instalment, an action was
brout'ht and judgment recovered upon the co\-e-
iiaut; whereupon tlie purchaser tiled a liill
jjttiii,' up tiiat a tenant of the vendnr had liy
virtue of a lease previously made hy the vendor,
ciurieil away the crops from olf tlie premises,
ami l>rayiii» to redeem upon i>ayment of the
luiiiiuntof the judgment, after deducting thw-e-
from the value of the crops so taken away. The
cmu't, liy wi"'si^"t"f Pi'i'ti*^**. ilii"uetcd a reference
to the master to enquire as to the amount of
(lamai'es sustained by reason of the removal of
the cniiis,
Imt refused to interfere with tlie
iiiili'imiit ah-eady recovered, the renuiining in-
stalments (if purchase money being nuire than
siiliicient to co\er any sum to which the jiur-
cbaser eoulil he entitled in respect of such dam-
ages. Mi'i'i'i V. Ml rritt, (i t'hy. ooO.
The gnnviug crops on land are part of and go
with the freehold when sold. Where, tlierc-
fore a tenant in possession at the time of sale
carr'ioil away the growing crops, comiicnsation
was "rauteil' til the purchaser out of tlie pur-
chase lUdiiey, and the same order was made
til ixteiiil to taxes due on the land and uniiaid.
V.iivirfv. lliiiiltr, -2 Chy. Chamb. ;«,').-- Taylor,
Sn-fl III I'll.
.\lthuuyli the general rule is, that the mere
fact lit uiie tenant in common holding posscs-
simi of the entire estate, will not render him
liaUe to a co-tenant, who might himself enter
aiiileiijiiy the ]iossossion with the other, and the
ciiiirt will not in such a case interfere with the
ilealiiij: of siieli co-tenant in regard to the pro-
perty, still where the co-tenant in possession
was tlie niiitlior of the other co-tenants, all of
whiim were infants at the time of her second
iiiarriage, the court, at the instance of one of the
diiliheii who had obtaincil majority, restrained
tilt liuslxuiil and wife from selling or disposing
iif till' eroiis of the current year, or the proceeds
tliiivof, unless they undertook to bring into
I'liiirt iiiie-tiiiril of such proc.:eds ; but refused
t'l interfere v, 'tli the possession of the mother
aiiil her Inisliand in respect of previous years ;
iiltliuugh as to such previous years the mother
iiiiglit have lieen aocountal lie to her infant cliil-
ilrdi as trustee for them. J}<tli'.^ v. Murfiii, I'J
; C'liy. m.
B, w.os a regist /ed judgment creditor of M.,
! alter whose death T. obtained a decree for a debt
i due hy M. T. issued a sequest ration for this
ilelit. Uiiiler tiie si'ipiestratioii lands were
I seized ami let under the authority of the court
I to tenants ;—Hehl, that B.'s charge having the
I [iriiirity ovc'T.'s, 15. was entitletl to set aside
I till' lenses on paying the tenants for their labour
I ill iJUttiug in fall crops and preparing the land
fur tall ,iiiil spring crops, and to have the land
I will free from the leases. Jlci/crx \: Mi'i/iis, lit
I thy. 541. ■ '
A testator had sown a quantity of grain which
I was hi the ground after his decease. One of the
I next of kill sought to charge the exeeutoi-s with
': the value thereof, hut the land ou which it was,
I Iwing lieeu devised to the widow for life, it
was-Hekl, on anpeal, that she, not the exeeu-
1 '"". 'fere entitled to the ombleinents. Cudnty
\ V. CVdiey, 21 Chy. 153.
C'ROWX.
I. AtXroXS AM) I'lUK.'KEDINciS nV ANH
AiiAI-VST.
1. dcnemllj/, 958.
'2. B.i-irii/iiiii.f, 959.
(a) h'.iliiit — sVc I'lx'rKN'r.
(b) Sri Fa. — Sir Sc IHK Fa( lAs. .
.'{. Vwil-s — .SVr- Costs.
4. Atlin'Hi'ji mill SiilirUiir-(li III- nil -Sir Ar-
TOKNKV AND ,S(ll,lCir,ll!-(iF.NKliAL.
.">. Iiijoriiiiilioii J'lir Jiifriitioii — See In-
trusion.
(!. I luiiiinition — Ser iNgiisirioN.
II, Bonds — .SVp Crown Hon tis,
HI. I'KTlTKIMNli — Srr rKTITION OK rvKIIIT,
IV. AoKNT.s — See Crown Lands.
V. ((FFICERS — ,SV(' AtToKNKV and SoI.K IToR-
(i KN KRAI.— Cot NTV ATToltNf;V
Crown Oikick — Okkici: — I'rm.n!
Officeus.
VI. Office — Sn Crown Office.
VII. Ministers of— .SVc Attornev and .Soli-
citor-General— Parliament.
VIlI. CllARTER.S— ,SVc CORI'ORATIONS.
IX. Lands.
1. Bi'luiiijiiiii lo — Si'c Crown Lands — In-
dian Lands— Ordnance Lands.
■J. Fiirj'riiiiri' iif, to Crijirn — Srr Attain-
der — iNyllSITION.
X. TniBER — Src Crown Lands.
XI. Patent — .SVb Crown Lands.
XII. Excise and Ci'sto.ms— .SVc Kevence.
XIII. IiKiHTSON W.VrER — Sn' KkRRV — FiSIIERV
— Water and Water Cocrses.
XIV. IiiciiTs IN HwnwAVS— fe Wav.
I. Actions AND Proceediniis iiv and ahainst.
1. (.Iiiiirnllij.
in case id' debts due to the crown, which would
be cognizable in the Court of l^xcheipicr in Kng-
laml, this court may give relief when it appears
that in law, reason, or good conscience, the
deljtor ought not to be charged. Kiii'itin v. lion-
trr, (i O. S. 551.
The sureties of a clerk of the Division Court
having entered into the bond authorized by the
acts 4 & 5 \'ict. c. 3, and S \'ict. c. 37, are liable
upon such bond to the crown for moneys col-
lected by the clerk for suitors in the court not
paid over, /in/iiiii v. l\itloti, /{niiiiii, v. Mil.'iil-
Iviiijh, Jt'ri/iitii v. Mvnni, 7 V- I^- *^'^-
Senible, that on the trial of any such action
the crown would be entitled to a verdict for the
penalty of the bond, and not only for the sum
received for the suitor and not paid over. /').
The crown cannot be a claimant within the
mefining of the statute authorizing the settle-
ment of claims of goods taken under execution
by interpl'-ader. Mcllir v. Bninis, 3 L. J. 151.
— C. L. Chamb. — Robinson.
;' ^^It : III
m
i !
; lit'
il
m WT
959
CROWN LANDS.
Wi
The garnishee clauses of theC. L. P. Actdonot
extentl to the Queen. The crown cannot, there-
fore, proceed uniler them to attach a debt.
Ji'djina V. Jiiiinoii, 2 P. K. 350.— Q. B.
The statute 23 Vict. c. '25, exempting certain
articles from seizure, does not bind the crown.
Rf/iiiit V. Jhifiilsim, 21 Q. B. 41.
The crown has the right in a civil action to
lay the venue in any county, lii-iihin v. Sli'ip-
vion, (> L. J. ID. — C. L. Chamb. — Robinson.
Where tlie recognizance is removed into one
of the superior courts at Toronto, the united
counties of York and Peel are the proper counties
in which to lay tlie venue, and in such a pro-
ceeding tlie venue cannot be changed without
the consent of the attorney-general. //*.
Held, that the Queen may t.ake a chattel mort-
gage from any of her subjects (under our acts)
through and in tlio name of the head of the
department to which the del)t is due, to secure
such ilebt. J/<•^V( v. S,ii!//i, 9 C. P. 8!».
Held, that the crown could not be prejudiced
in its right to recover l)ack taxes on land leased
to a commissariat otiiccr by mistake of the officer
in cliarge in paying them. The Pnncijittl Sfcrc-
fun/ (if iStii/r /(■,• War v. 7' lie Corporal ion of the
C'llij uf Lomhjii, 23 Q. B. 470.
Sendile, that the court may direct crown cases
to stand in the new trial paper for ai'gr.ment
with ordinnrv suit between party and party.
li>'lliii,i v. Sb'iiintt, 27 Q. B. "i30.
The rule wliich prevents a civil remedy being
taken whilst the prosecution for tlie felony which
is the foundation of the action is not concluded
does not apply wlierc the crown and not a pri-
vate jpcrsou is the plaintiff. Jfec/iini v. Jidfiii-
sfeiii, .-) P. R. 175— C. L. Chamb.— (ialt.
The Court of Chancery cannot enforce against
the crown specitic performance of an order in
council. Siiiiimm v. Grant, 5 Chy. 2G7.
AVhcre the crown holds the ecpiity of redemp-
tion of mortgaged premises no absolute order of
foreclosure can be pronounced, but only tliat in
default of payment tlie mortgagee l)e at lilierty
to enter into possession. Dunn v. Atti>niii/-
Gencriit, 10 Cliy. 482.
A plea of purchase for value without notice
cannot be set up against the crown. Atturnei/-
General v. MrXull;/, 11 Chy. 281.
2. E.riciition-1.
The testator at or before his death was deputy
superintendent general of Indian affairs, and
trustee of the Six Xation In<lians, and as such
superintendent was an accountant to the crown,
and at tlie time of his death he was indebted as
trustee : Held, that the testator was not a
public accountant within the meaning of ISEliz.
c. 4, and that the crown could have no authority
to sell his land under that statute. Doe d. DicL--
mn et n.r v. (.'/•o,<»', S) Q. B. 580. ••
The crown may issue a ti. fa. for t'le .sale of
lands and goods in order to satisfy a tine im-
posed ; and the person fined may be said to be
niilebted, and the tine to be a debt. Jiet/ina v.
The Desjardins Canal Co., 29 Q. B. I()5. '
Lands and goods may be included in the saij..
writ, and it may be made returnable bufoiv'th
expiration of twelve months, the crciwn y.','i
being bound by the 43 Oeo. Ill, c. 1,
crciwn
1. /',.
CROWN BONl).^.
I. For Fipelitv .\nd Honkstv ok P£fenx,
— tSee PRINCUWI, .\ND SrHETV.
II. REt'(1(iNIl',.\NCEH — See ReC0(1MzaN(K.
III. E.s'FORC'ixf) — See Scuu Paiias— Piiiv,,,
P.VL AND Sl'RETV.
A. and B. enter a.s co-sureties into seimiatt
boiicls to the crown for C. ; ('. Ijeudines a ili-
faulter ; the crown proceeds Ity sci. fa. (m i.-iib
l)oiid, and ol)tains a separate jiidgiiiuut attainst
each surety. A. satislies to the cruwii tiiu^il..
nient against himself. B. moves the cimittnU
aUowed, on paying the judgment against liiniMli
in full, to stand in the place of tht: cidwii, aiKlt.i
have the l)enetitof tiio crown process a-iainst hi<
co-surety for a moiety for the judgment ;-Hol,i
that the court could not tlius relieve !!. fruin tlit
effect of the judgment against liiniself ; all that
they could liavc done would have Ih-lm toalli.w
him to proceed in the iiaiue of the ernwn tn
enforce the judgment which h.id liueii (il)taiiHil
on a sci. fa. against A., and this they Ldiilil imt
now do, as it api)earcd tlie crown "had alnady
enforced that judgaueiit. Jai/lnii v. Lainl, ,"0.
I>. 277.
The testator held certain lands as a tnistue t'l
secure a delit <lue him, and devised tliu iv.siihiu
of his property to his executnrs, except sinli
parts thereof as might at his dciease liu vesttd
in him upon any trusts or liy way uf iiiiirt:.'a!e,
and then, by a subsecpient devise, all tlu.' ivi^ulik'
of his estate, real and personal, to .1. M. (wli.iiu
he also appointed one of his exccutnvs) ainl his
heirs absolutely. The te ,tator had joineil in «r-
tain crown lioiids whic'.i rciiiaiuoil niiilisi.'har:.'('4 :
Held, that they forn-.cd a charge upon the hui'ls,
which the purchaser was eutitli'd tn haviro-
moved. /iV Chnrh-s, 4 Chy. t'hanili. m.-IVy.!,
Master.
CROUX LAND.S.
I. Patent. -
1. (leneriillii, 001.
2. JJe,irrl])ti<in of' l.nml in ]'iiti:lllii — Sr<
Deed.
3. Eriilenee of--See Evidencf.
II. RlCaiTS DEFORE IsSl'E OF PaTKNT.
1. To Maintain Kjietiiunt, %'2.
2. To Maintain Tntpn,'!* nr Cti"'', Ot).'),
III. Estoppel by Deed nKFouE ksiE oi
Patent — See Estoppel,
IV. RioHTH OF Grantees, 9(!."),
V. .Settino Aside Patent or (Ihant,
1. Jiiriiiliction of Cinirt uf Channi'iJ, OOli.
2. For Error or 3f intake iu hmiii'j, "•'"•
SritETv,
ids US a trustee t'l
L'viscil tllf R'Sullle
9G1
VI
VII.
vin.
i.\.
X.
xt.
XII,
XIII.
XIV.
XV
XVL
XVII
CROWN LANDS.
9G2
3. For Fmwl in Procurhuj.
(a) Pntdtrf mid Pkwlimj, 970.
(b) Other C<ms, 971.
Crowk Timber.
1. Crown Aijeiits, 972.
2. liiiiht.i of Licensees, 973.
3. Other CnsrK, 974.
MisiELLAXEOUs Cases, 975.
Indian Lamds— .SVc Indian' Lands.
Okiinam'E Lands— -.SV'' (Ikdnance
Lands.
Koads— *e WAV.
SiRVF.v— SVc Survey.
Inqi'isition— -SVc Inqi'isition.
ISTRl'SION— fe I NTRUSrON.
Possession of — Sfe Limitation of Ac-
tions AND SriT.s.
Exemption from Taxation —Sn- Assess-
ment AND Taxes.
l'R(isF.it"TiN(i Claim before Heir and
Devisee Commission — Sec Heir and
Devisee Coiimission.
[vElilSTRATION of INSTRUMENTS HEFORE
issi'E OF Patent — Sec Recustry
Laws.
I. Patent.
1, Oem-ralbj.
Ill actiims in which the King is a party, in the
coiistnietiiin of grants from tiie crown, where |
tiiereisiin lUiiliiguity in resi)ect of tiie premises
-as, for instance, what is to be considered the i
Kiiil;i)f.i river -otlier grants from tiie crown |
are ailiuissilile in evidence to assist the construe- '
ticu. Clark V. Bonmjea-ifle, .3 (>. S. oiS. ;
liraiits from tlie crown, either foi- a valuable
(iiiisiileratiou or of special favour, are to be eon-
striieil in the siUiic iiiaiiner as deeds from subject
tiiSlllljCCt. III.
■ !
A grant from the crown must be by matter of
rcciml. ami iiiidur the great seal. Doi> d. JitrkAon '■
V. iri//,M,4(). S. 142.
An exeniiiliticatiou under the great seal of a j
(.'rant invaliil in its inception will not make '
sikk grant valid by relation from its commence- [
! ment. /'/.
So l(mg as there is no other person in posses-'
I sion, elaiiiiiiw adversely to the grantee's title, !
I tiie grant ami title given under it carry the pos- !
I itmm ijy construction of law to the <nvner of |
I the fee. A visible actual possession by the
I owner, or by those claiming through him, need
not lie proved. Doe d. Madem v. Tiinilmll, ,'5
|Q. B. lift See Wnwcr v. IhinjM.s 22 C. P. 104.
Tlie cmwii granted land ))y letters patent to
J. S., in tmst for his son I. S., a lunatic, his
heirs and assigns for ever, to have and to hold
tiie Mme laud to him, the said J. S,, his heirs
wid assigns fi ever:-Held, per Draper, J., and
Bums, J., (Ruoinson, C. J., diss.,) that this
patent coming, as any other mode of assurance,
[under the operation of the Statute of Uses, 2"
61
Hen. VII L e. 10, if it did not, from particular
ccmsiderations applying to the lunatic only, vest
the real estate in him, yet that it nevertheless
created a use which, on tlie death of the Innatie,
was executed in his heir, and that tlierefcin; a
deed, made by the lieir after his deatli, would be
valid as against a <leed executed by the grantee
of the crown. Doo d. Sni/tlcr v. J/((.«'((>-, 8 Q.
B. 5.5.
A grant of lands in 1784 by tlie then governor
of Quebec, and under liis seal at arms, to the
Mohawk Indians and others, conveyed uci legal
estate ; 1. As not being by letters ])atent ; 2.
For want of a grantee or grantees capable of
hoMing. Doc <1. Slu'lilnn v. J'dnisiti/ I't nl., !(
Q. B. 105.
The lanil in (piestion was granted by letters
patent to A. <i., her heirs and assigns for ever,
"to have an<l to Indd the said jtarcel or tract of
land thereby given and granted to her the said
A. (I., in trust for herself aiul her children, .M.
<J-. and F. (i. : — Held, that A. took the fee, and
that uf) legal est.ate passed to the children.
GoliHe V. Tii/ilor, 1.3 Q. B. (i03.
The patent in this case granted a certain public
toll-bridge, witii a planked and macailamized
toll-road, together with all toll-g.ites on said
road or bridge, "and now vested in us, and the
tolls arising from said liridge and road, on cer-
tain conditions ccmtained,'' &c. : — Held, that the
patent was not ultra vires, but passed the soil
ami freehold and the right and franchise of
taking tolls tliereon and in respect tliereof. /iV-
ijinn V. MllU et ni, 17 C. P. (>.">4.
The i)atent to A. C. contained tlie clause tlieii
usual, ( 179(i) saving and reserving to the crown all
white pine trees : — Held, tliat iKPtwithstanding
this reservation the plaintitt', claiiiiing umler the
patentee, could maintain trover against defen-
dant for the white pine, for the soil in which
they grew was his, and he was entitled to their
shade as against a stranger. (.V/.^.«///(<'// v. Ilir-
.«■,/, ,32 Q. B. 3.3.3.
Held, also, that the evidence of possession
being sueli as an owner conhl be expected to
have of wild land, would alone have been sutli-
cient to entitle the plaintiff to maintain the
action. Ih.
See IV. p. 965.
II. KKiiiTs before Issue of Patent.
1. 7'() 2fitilltlli(l EJrrliilflif.
A person holding land under a license of occu-
pation from the crown is entitled to a demand of
possessiim before ejectment in'onght by a grantee
of the crown in fee. JJo<- d. Cn-cii v. Fri(.-<iii(Ui,
5 (). S. ()()1.
Held, on appeal from tlie Queen's Bench, that
the purchaser from the government of a clergy
reserve, upcui which he had paid an instalment,
and obtained the usual receipt fnmi the depart-
ment, has a right to obtain possession against
any one in the occupation, oven although the
occupant may have subsequently obtained the
receipt of the commissioner of crown lauds ; the
crown, under such circumstances, being b(miHl
by the contract made by the department with
the tirst purchaser. Blake, C. , Esten and Spragge,
V.CC, diss. Doe llenilrrxon v. KV.^^dvc, 1 E.
6 A. 465. I
B
I I
!
ti^d• ^1
k \\
\.
.1 Ih;
lii:
TTT
Kf
TT"
'>r
>
•9G3
CROWN LANDS.
S«t
DC'
riiiiiitift' ill 1S4() imrcliased soiik; clergy reserve
laiiil fnmi a goveriinieiit agent, aiul oMained
receiitts for |)artial iiayiiieiit. J )efeii(laiits were
then living on the land, and had lieen living
there since 1840, liaviiig made valuable inqirove-
iiK.nts. On tlie '2nd of August, 184f(, an onler
<if council was made, that on the defendants
making tlie rei|uirod |)aynients, tlie iilaintiff's
money shoulil be returned to him, and the sale
to liim cancelled. NVlien the ju'e.seiit action was
brought, an onlcr of the executive council was
maile on the (itli of August, KSr)0, recommending
that the attorney -general be authorized to defend
the suit : Held, that when the ]ilaintilf' received
his tirst receipt, defendants being mere intru-
ders, he ac(jiiireil a right to eject them under 12
Viet. c. .31, s. '2; and that the crown could not
at its pleasure divest him of that right, nor
change a wrongful occupant into a rightful occn-
l)aiit, to the prejudice of their own vendee. Doc
(1. Ill lull rsdii V. Si iidiiiin; !( (^>. B. 47.
The ]ilaintirt' in ejectment jn'oduced two re-
ceipts for certilicates of deposits to the cre<lit of
the receiver-general, on a purchase of certain
lands. In both the-inoiiey was expressed to have
been received from the jdaintitf. In the Knst a
blank was left for the name of the vendee, the
words "sold to" being inserted. In the second
no mention was made of the purchaser : — Held,
that the receipts prima facie imported a sale to
the plaintirt'. Yuniiii \. Sroliii', 10 Q. B. 'i''2.
The plaintiff brings ejectment on a patent to
himself for the south-west half of lot No 12 in
the (itli concession of Trafalgar, dated 22nd Sep-
tember. 1S.V2; defendant puts in a receipt for
the payment of the tirst instalment on the said
lot from the commissioner of crown lands, dated
l!)tli Jtdy, I8.")2. Pending this suit the 1() Vict,
c. 1(>!», was passed : — Held, that this statute,
nlthough i)assed while the suit was pending, had
the etl'cct of reixjaling all former acts which gave
ftiiy ert'ect beytmd the common law to the receipt.
Aniixiriiiiij V. C'ainphfl/, 4 C. P. 15.
Tn ejectment the plaintiffs produced and
proved a receipt in the following form : — "Hank
of Upjier Canada, agency at (Joilerich, Feby.
20th, lS(il. Origin^il for 'the depositor. !?()0.2b.
lieceived from \V. (1. \V. and A. .M. the sum of
sixty (hdlars twenty cents For account of the
crown land departinciit, which amount will ap-
pear at the credit of the account with this bank |
on the mill reserve in the tt>wii plot of Fordwich, i
ill the township of Howick. Signed iiulnjilicate,
&c. : — Held, that this receipt was not a suilicient
authority under 23 Vict. c. 2, to inaintaiii eject- i
nieiit : that a license of occupation under the
hand and seal of the commissioner of crown >
lands or a i)atcnt was necessary ; and that the
17th sec. of 2.S Vict. c. 2, is only retrosjjective
in its operation. Wulbr rl iil. v. Iloiiirs, 12 C.
r. .327.
2. To Mnlntahi Tri'KixiM or Cnm:
The plaintiff (ditained a lease under the great
seal for a lot of land, and finding plaintiff in
possession as an intruder, gave him notice of the
lease, and retjuested him to leave the lot. De-
fendant afterwards cut off some valuable timber,
for which act plaintiff brought trespass ; — Held,
that plaintiff could recover without further proof j
of entry. .SV. Leijfr v. Manahan, 5 0. 8. 8!). I
I A locatee before patent may maiiitaiu, in »(.{„,
on the ease against a stranger for an iiiimv il,,"
' by him to his land by Hooding; but wliciv ;iiii,i?
'. in council had been made that no deoilj slmrt
I issue from government for lands in ,i imrtiiuW
I part of the township, without .i spciiiil nsm'
tion to the defendant of a right to II I ,|,|.(
I i)ortioiis of that land :- Held, that a l„^.;,t"
coidd not maintain an action for thi' ll ijn,,*
a iiortion of those lands by the dcfciuLuit, Z\
I would in such a case be in abetter |iiisiti.,ii!«i^
grant from the crown than aftc rwaiils i/,/ '
' I'lu-ilij, H. T. (; A'ict.
Held, that a receii)t for the iiuiiliasf mdiiet
of land from the crown under 4 & ,"> \'iit. ^- imi
entitled the purchaser to niiiintiiiii tiusiiujiji „i
replevy any property taken tlhiiiVmii /;,,,;
1 V. Walliii-i; 8 (_". I'. 88.").
j A purchaser holding a receipt for nn inst.il.
ment, and having actual possessimi, ii],iv m;,!,,,
tain trespass against all strangci's, tliiiuyJiHiit
against the crown, (i/onr v. Wult, ,-il n/., ,•,(•
1'. 478 ; aHirined in A/i-.iiiiu/i i-\. /llril,^V, ||',-,n]i
But actual posseasitm is necessary, fm- tia rt
ceipt confers no constructive possessimi //,,„/,,
; ■■<i>n V. Ml- Linn, 8 C. P. 42.
^ The plaintiff entereil into an ayivciaiit Icj '
purchase of laiul from the crown. "||o \a,\ thjl
lots surveyed, and paid persons tn Idnk iiiter
them for him, vdio had frei(uciitly uiiti'ivd ,iiij |
examined them, but the )ilaiiitilt' Imd imt en-
tered upon the land himself, nor i-uUivatiij aiivj
portion. Defendant went uiioii tlir laml anil
cut trees, for which he oll'crcil to sittlc witlitlml
plaintiff's agent, but he afterwards wuiit tn the
local crown land agent, who was iuiKuaiit ni the |
plaintitf's jiurchase, and got liiiM tn anqi
sum of money and give a I'cceipt for it, as Icr
timber cut on the same land ; Held, that tlie
plaintitf's possession was suilicient t(i maintain
trespass against defendant, and that tliu imv-
ment to the crown land agent f<iniu-d imuxiiise.
Qna'i'e, whether as vendee he cniild rtmver
substantial damages f<ir the trees cut. IhiJu--
■iiiii V. Mi-Liiui, l(i {). H. (;.m
Held, that the 10 Vict. c. !.")!>, Iiy riinalin.'
the former acts, does not conliiic tliu nj,'lit 'it
action against wrong-doers to tlin^' wlin law
(d)tained the license of occupation iiiciitidiiul in
the sixth clause ; liut leaves to otlicr lunvliasei-
whatever rights they may have at rnMiiiinii law,
Henderson r. McLean, 8 ('. I'. 42, in |i:irt '»-•
sented from. Il>,
Tresii.ass ((. e. f. The plaintirt' in primf of his
title put in at the trial a receipt friiin thv Iniilc
of Upper Canada at Kingston, wliicli .stati'dtiut
the amount therein mentioncil wduid apiuar at
the credit of the crown land dcpaitnuiit in tie
said bank on lots Nos. 24 ami 2."> in thf Htli con-
cession of Hiiichinbrooke, being tlic iiroiiiises in
miestion. On this receipt was eiidorMed a oirti-
ticate of the sale and terms tlieivof. sij^ncd Intlie
crown land agent : — Held, suilicient, muKr i3
Vict. c. 2, to entitle the idaiiitilf td maintain
trespass for cutting trees after the date nt the
certificate, but before the statute. Wliiliinjw
Kf-ninhati, 12 C. P. 57.
The plaintiflf held possession as puroli.iser
under a receipt from the crowu land agint, and
before defendant entered he had paid ii]i in full, .
and was entitled to his patent, « hicli however
>i*fl
30')
CROWN LANDS.
9()G
I'll it ''"' ■'» iii^tjl-
fssiiin, may main.
MUl'l's, tll(i\li;ll liiit
k-. /.'"■'/,«(', I'., -.mi
X'ssary, fm- tlit re-
;)sst'ssiciii. Ihiiilii
H-U'iit til iiiaiiitam
ml tliat till' jiav-
I'liniii'il iiiiu\t'ii<t'.
ill.' I'liiild rociivcr
iiliiu' tlif rij^lit III
hii>o wliii have
Itiiiii MK'iitiumil ill
l> iitlli'l' IHIlvlu^ili
Ir :it rniiMiinii law,
lit ti'iiin till.' laiit
tlie iiruiiiisu! in
t'iiiliii'«eil a I'ertl-
ji'dl. siijiK'illiy the
llii'ii'iit, uiiiltT -3
lititl' til iiiaiiitain
I"'
Lliil not issiit^ ""til *'""" *'""-' "^*^''' • — Held, tliAt
1 1 . wiw eiititk'il til recover for trusi)ass coniinittetl
licfdr'e iw "I'll '^>* ivft»i'' tl'i-' luiteut. Xifliulion v.
The iiliiii'tilF olitained from a county crown
I 1j,„|1 „,,oiit ii ticket stating the anioiint to l)e paid
ntii the Hank of Montreal as the tii-st in«tal-
mi'iit 111! 11 hit which lie said he would probably
Imv Neiuly a month afterwards he paid this
s'lun to tiie'liank, taking their receijit, which
stiitiil that it would ajipear at the credit of the
•rmvn hiinl dciiartnient, from wliich lie subse-
muiitly received a letter acknowledging the
iia'ipt of the money on this h)t, and saying that
his Liimmiinication would receive attention. The
,it saiil this was not a sale, and this lot was
uiitiiithe nuintldy return of lots sold sent to
him from the department. Defendant held a
timhi'i' license for this and (tther lots, but land
ivvimisly sold was expressly exeladed from it :
— Hi'hl, that till- plaintiff was not a purchaser
friiiii the crown, so as to entitle him to recover
atfiiiist ikfendiuit for cutting timber on the lot.
Jlvi/x ,, Citiiiiiiiiin, 27 (,>. B. 470.
IV. KlfiHTS OF (iu.ANTKKS
A iiersiin holiliiig land under a license of occu-
iiatiiiii froio the crown is entitled to a demand
(if iKissi'ssioii before ejectment brought by a
L'lanti'c of the crown in fee. Jhx- d. Criin v.
fi-iimiit, ")*•■ ^- '>''!•
A. .111'! H- having received grants from the
criiwii I'lir adjoining lots, A. inadvertently occu-
iiiftl, fi'iiceil, and improved a poi'tion of li.'s lot,
aaiiiiling to the moile of running side lines pre-
seriK'il hy 58 (ieo. III. c. 14, believing it to be
aiiiirtiiiiicif his own lot. Some years after, H. 's
to wiui coiiliscated under the Alien Act, ,')4(ieo.
111. e. II, anil sohl under .VS ( ieo. 1 1 1, e. \'l. A. and
tliiw cliiimiiij,' under him, had held the disputed
trait for uiiwiuds of twenty years at the time of
action hrouyht, but not at the time li.'s estate
ivas iiiiiliscateil, ami the crown became seized
liy iiniucst of (ithce : "Held, that A.'s occupa-
tinii iliil not work a disseisin of H., and that B,
( tiiiitiimeil seized sii as to entitle the crown to
|tliat imrtion of his lot in A.'s possession, and
Itliat tlifliargainee of the crown commissioners
Fciiiilil iiiaintain ejectment against the occupiers
Itlitri'iif. Dm d. lldii'drd y. MrlJuiimU, Dra. H74.
Till' graiiti'e of the crown has the same right
6a.<tlic crinvn has to treat the possessor without
|titk' as a trespasser : he is not disseised by the
|(iiiitiimaiice of a possession that has been held
iTniiigfullv as against the ci'own. Dor d. ( 'liurle/t
|v. (Vf/oii.'S Q. B. MI3.
The effect of the exception in 4 Will. IV. c. 1,
'", in fiivimr of a grantee of the crown who
Iks never gone into possession, is, that while
ligiiiirant of the fact of his land being in the
lactual possession of some other person, he is
Inot til he regarded as disseised, and conse(iuently
lis in a coiuhtiou to devise. JJoe d. McaUlis v.
jJ/i'';i7/;r,'„j/, 9 Q. B. 9.
Where a married woman claims under letters
patent fnim the crown, her husband need not
have entered upon the land in order to entitle
inn to tcimiicy by the courtesy, the letters
Ipatent suo \-ignre constituting seisin in fact.
lib(iiff V, Bunjm, 22 C. P. 104.
The patentee of the crown of land may nniin-
taiu trespass without entry against a person in
actual possession before and at the time of the
issuing of the patent, for the letters patent ope-
rate by way of feofhneut with livery of seizin to
the i)atentee, and defendant's possession nuist
be regarded as an entrv subsfc[Uent thereto.
airriJair v. Frdsir, 24 ('.' 1". 2.m
The phiintifi', having no title, assigned the land,
in (piestion first to one ('., and afterwards to one
M., to secure certain ailvances. The crown hav-
ing issued the [latent to ('., the jjlaintili' sought
to get in the legal estate outstamling in ('., but
without paying M. : Held, under the maxim
" He that comes into equity must ilo eiiuity,"
that he was tirst bound to pay the advances
made by M. ]\'i(i(iiii>i v. Mihlriim, l."i ('by. t'^77.
See I. p. !»(il.
V. Sirrnxo .\siiik r.vrF.Nr ou (in.v.NT.
1. Jiu'iKil'ifliim of' C'oitii (if C/itiiireri/.
The Court <)f t'hancery has jurisdiction, under
4 & .") \'iet. c. 100, s. 20, to rescind a patent,
tlnmgh the grant may be voidal)le, or even void
at law. Martin v. Ki'iiikiIi/, 2 ( 'hy. SO.
But not to set aside a grant made upon a
deliberate view of .all the circumstances, and in
the absence of fraud or mistake. i!siiiijiiiiiii v.
(I'niiil, 5 Chy. 2ti7.
Where the executive government have con-
siilered the claims of opposing parties to lands
leased from the crown, with a claim of pre-
emption, and have ultimately granted to one,
the court cannot, where no frauil apjiears in
(ditaining the grant, afterwards dcchire the
gnintee a trustee of any portion of such hands
for the opposing party, on the ground that he
had i)reviously ac(iuired an e(|uitable interest
therein. /iiiiiltoii v. Jiffn;/, 1 K. & A. Ill, fol-
lowed in JiiiriK-1 V. Biiiiiiicr, 10 C'liy. .VW.
Qu.ere, even if there had been fraud, whether
the court could interfere at the instance of the
party who had opposed the grant. / 'i.
This court has jurisdiction in a jiroper case to
give relief against a fraudulent assignment by a
locatee of the crown, before the issuing of the
letters patent, but a bill for the jmrpose must
shew why it is necessary to come to this court.
Jiiillv. Friiid; I2t'hy. 80.
Where the crown lan<ls department has con-
sidered opposing claims, and a patent is directed
to issue to one clainumt, this court cannot re-
view the decision of the commissioner, although
it might have taken a ditl'erent view of the case
in the first instance. Kdiiiiili/ v. Litirlm; 14
Chy. 224.
This c(mrt will, at the inst.ance of a judgment
creditor of a locatee, with execution against
lands in the hands of the sherill', direct the
interest of the locatee to be sold, and order him
to join in the necessary conveyance to enable the
purchaser, under the decree, to apply to the
crown lands <lepartment for a patei't, as vendee
or assignee of the locatee. Vali' v. ToUcrlon, 13
Chy. 302.
The interest of a debtor in land bought fmtn
the crown, but for which at the time of his
death he had not fully paid, and had not obtained
. 1 ,i
; '■ i'l
M
-1
1 1
OG'i
CROWN LANDS.
%]i
l!)f.'-j '-:■
the patent, is available in equity for the henetit
of Ins creditiii'H ; ami their right is not destroyed
by a friend of the heirs paying the balance of
tlie purchase nionej', and procuring the patent
to issue in the names of the lieirs. Fcnjumm v.
Fi-rrinsoii, l(i Chy. 30!).
The right which a squatter accjuires by being
in possession of lands of tlie crown is not such
an interest therein as this court will order a
partition of amongst his heirs ; in such a case
the only remedy is by ajiplication to the execu-
tive government of this province. Jtnklnn v.
Marliii, '20 Chy. iiUi.
3. Fur Error or MUUtlce In InKulnij.
Qua're, whether any grant improvidently made
of lands set ai>art for the Hideau canal, before
the 7 Vict. c. II, would not be void at common
law if injurious to the canal, without proceeding
by sci. fa. to repeal it. Doc d. MuIIdcIi v. Tlo'
Priiirl/Kil (tjlirirs of llir Moji-.'i/i/'n Ordinnirc, 3
Q. B. 387.
Held, that lands granted before the 7 Viet. c.
11, but afterwards marked out and reserved by
the (UMlnance department as unnecessary for the
canal, became again revested in the crown. Jh.
Where a party had, according to the custom
of the clergy corporation, paid the jiatent fee for
a lease, gone into jiossession and made large
improvements, the custom being that such party
was considereil as having a lease for twenty-on(;
years, with a riglit of renewal and j)reemption,
(not niateriall}' varied by the subsc(]Uent orders
in council regulating the sale of clergy reserves)
and the crown, in ignorance of the facts, granted
the lands as a glebe of the rector of 1)., such
patent was rescinded as issued in error and mis-
take. J/iirli/ii V. KciiiK'di/, 4 Cliy. (il.
Where the government had appropriated and
patented as a glel)e a lot wlncii had l)een pre-
viouslj' occupied and improved, and upon which
the ]iatent fee liad been paid l>y the occupier,
and not returned to him by the government, the
patent was set aside as issued in error and mis-
take. Atlorii('i/-Giiiira/ v. Hill, 8 Chy. r)3'2.
Altliough the crown may shew mistake in law
or fact in resjiect ()f its grant when the indi-
vidual eouM not, still the evidence nnist be con-
clusive. At/oriu'!i-(,'i-iiir<il v. (Iiirhiilt, .TChy. 181,
In 1 7!>7 an order in council was made in favour
of M. 1'., as daughter of S. ])e. F., a U. E.
loyalist, under which a lot was located, iiiid a
description therefor regularly made out in her
name; but in 1801 a patent for the lot so de-
scribed issued to one M. F., the sister of the
husband of the locatee, but during her life she
never claimed any interest under such patent.
No authority was shewn for the change of the
name in the grant from M. P. to M. F. The
court decreed the patent to be cancelled. Esten,
V.C, diss. .v. V. 11). 383.
In laying ofl" the town plot of S., a reservation
was made by the surveyor of a block for a market
square, and marked upon the plan returned by
him to the office of the coininissioner of crown
lands, a copy of which was furnished to the
local agent at S., by which he was to sell, and
several sales were accordingly effected by him,
some of them of lots fronting on this square.
On the plans tinally adopted by the t,-,,^
lands office, the market reservation was mark-^
" Reserve" simply. .Sub8e(|Uently tlif ^1,,,^
ment, under the impression that thin \\\i\,\ „,
at their disposal, granted part of it tuthiHlmr.
society for a church : — Held, on a Ijill \\\^..u
set aside the patent on the ground of (.nin- "
inadvertence, that it must be prcsuinid tliiitln,
the crown lamls department liccii awaivni Hla
had been done, the grant to tlie .Mi(i(;tv wimli
never have been inade : that theivfmi..] inim,
bill i)roperly framed, the letters p.itciit sli„iilj
be repealed ; and that the suit oiiyht tu h.n
been instituted by the attorney-gciicial >,\^ in.],,.
of the public. Miiiiiri/inlili/ of Siniiji, ,1 \ fj„
t'hiurh SocMji, (J Chy. 538.
1 lie commissioners under tlie llcirainl iLvi-t
Act, in deciding upon claims, .■irc iidt iKinnd by
the strict rules of ccmrts at law. A innvliast'r
from tile crown devised the land tcj liLs vjff
for life, with a power of aiipoiiitiiii'iit aiii(iii«;
his descendants in tail ; and slic dovisdil tl,,
estate to one of such descendiiuts in tVo .ni
whose application the comiiiissidn rcciiiiinifinloi ,
a grant in tail to the person nanicd as devise
The crown thereupon issued a ]iattiit in favdii- 1
of such devisee. A bill was aftciwanl.s [\\a\\„
set aside the patent; :vs having; Ik'cii issuiilijj
error; i)ut a denuirrcr to the Kill tnr wantuil
e(iuity was allowed. Hcom- v. //uririrL ; (^Jiv
101.
The lieir and devisee comniission liavini; re-
ported that the lieirs-at-law of \. wtiu iMititinl
to a patent, the governor in council altcnv.irijs, I
up(Ui a report of the solicitor-general iiit'av.iiirnf |
B., a brother of A., issued a patent tu H. '
heirs of A. thereupon tiled a liill tu liavi; tlie |
patent .set aside as issncil in crrin', and a iiuw
patent issueil to themselves. 'I'iie cdiirt haviiii;
f(mnd there was no error of fact : llcM, that the
patent was properly issued to H. initwitlistaiidiiii;
the iinding of the coiiiniissioiiciN. Mchiurirw]
V. McDiariiiitf, d Chy. I-W.
Semble, this court may, in a iniiju'iiasi', set
aside a patent issued u)ion the tiiuliiig of tlic
heir and devisee comniis.sion. //;.
A locatee of the waste lands ot thu i'i"ini
having settled thereon, in prcpiu-iiig it fur culti-
vation cleared part of the adjoining land. At-
cordiiig to the usage of the cmwii lands dtjiart-
ment any person, even witliniit settling iiiKin
lands of the crown, etfccting a dealing tliiRnii,
was aUowed to jinrchase the lot at tin- iiriie
fixed by the agent of the goveniieiit. Siilise-
quently the government einpldyed an agent to
inspect the lands in the iieigliliimrhndii, ivkn
reported the property on wliieli the eleariiii; bl
been made as vacant and uniiiiiirdved, and valued
it at I'^s. (id. per acre. This ai,'ent aftmwapls
applied for and obtained a patent fur this lutst
8s. an acre, and abnost iminediately after suMit
to a person who had full knowludge nf tte
clearing. Upon a bill tiled l)y the piYsiniwIiii
had made the improvement, the cmut mdtTeJ
the patent to be revoked, as issued in erniraiui
mistake, without costs. But Seinlile, that 1*1
the agent been joined as a party, he wouM have
l)een ordered to pay costs. Prwtnr v. Urml. 9
Chy. 20.
The court, while affirming the general ilDctriue
on which the decree was prdiiouiiceil aluve,
reversed the same, on the ground of want of
9G9
CROWN LANDS.
970
ti e I'f til'' inii)ri>l)fr cdiiiluct of tlio gnintee of
' , iTciwii ill oliUiiiiiig thu jiiiteiit. Spmggii, V.
S. C. Ih
111
till'
('..(iiiliitiiiiti;
Till' leasuf "f tlie crown couveyud liis inturvst
t , r«. 'I'll'' •''M'''' *■" '""-' poi'tioii, iiftor going
h" .ii.'li stv"™! hiuiila, hecaine veatud in one F.,
u'lm ififil, l«ivviiig a widow and suvi'ial diildren.
Til' willow joined with lier Heoond hushund in
wl'iiii-.g tlitJ I'ortion bouglit by V. to one C,
uiio 8ul.se(|UC!iitly agreed to sell to S. A eon-
vi'ViinciT eini.loyuil to prepare the necessary
writiiifis rei-'oiiiniunded a transfer direct from the
lessee of tli« t-''"""'" *" ^-^ *" »"ni'l'fy *•»« *'*'»-■.
which was iiccordingly ilone, and thereupon S.
aDiilied to the crown lands department to pur-
•hlse iiroduciiig liis transfer, a certilicate of a
surveVMii". '""' '"' affidavit by himself tliat there
was not any adverse claim, no mention being
mailiof the jirevious transfers, or tbe.jiosaession
of the intoriiiudiate transferees, or of tlie fact
that the uncle of F.'s heir-at-law had intimated
to S. that the heir did claim it. Upon this appli-
(atimi S. was allowed to purchase, and a jiatent
was issued to him in January, 185,S. In 18()3 a
hill was Kled by the heir-at-law of V., seeking
to Set iwiile this jiatent, as having been obtained
thnmgh the fraudulent concealment of the facts
hyS. when applying for the grant. It appeared
tiiatthe plaintiff before attaining his nuijority
went to reside in California, and innnediately on
his return instituted proceedings. The court,
wilier the circumstances, altlniugh accjuitting
(lefemlant of all actual or intentional fraud, de-
clared the patent void, in order that tlie crown,
with a full knowledge of all the facts, might
(leal with the ciise as should be deemed riglit,
ami onlered S. to pay the costs of the suit ; the
ilelav which had occurred in commencing the suit
king accounted for by the in.ibility of tlie plain-
tiff, arising froiii his poverty and his absence.
TM V. .SV//n'/-, 10 Chy. 254
111 March, 18(>2, 8. purchasetl land from the
cromi, .iiul with his family went to reside on it,
liut by mistake settled on the adjoining land,
aiiilmaile improvements. In June following t".
.ipplicil to the crown lands department to know
ffhi'ther the land so purchased by S. was for
sale; the patent had not issued to S., and
through an error in the department C. was in-
formeil that the land was for sale, and imine-
iliatcly purchased and received a patent. He
iliil not, however, take possession until Deceni-
lier, 18(i3, when he brought ejectment against
!<., and engaged the defendant, B., to take the
timlier off the lot. At the hearing the plaintiff
failed to prove notice to C. of his claim and
improvements, but the error on the part of the
office heing proved, and the attorney-general
king a delemlant, and submitting to the direc-
tion of the court, the patent to C. Wiva rescinded,
an mjiinction granted, and C. required to account
for the timlier cut. Skivimv. t'uok, 10 Chy. 410.
. Although parties dealing with the crown will
be held to the strictest good faith, yet where it
is shewn that the patentee of lancl was ignorant
of a fact which might have been material to bring
under the notice of the officers of the crown, and
the plaintiff had the opportunity, but fiviled to do
80, and subsequently filed a bill impeaching the
patent, as issued in error and improvidence, the
court refused the relief prayed, and dismissed
the bill with costs. Mahon v. McLean, 13
Chy. 361.
Where a bill is tiled by a private indiviihiiil to
repeal letters patent on the ground of error, the
onus of proof is on the plaiiititV, tliough it may
to some extent involve proof of a negative.
Mrfiit;/rf v. Till- Allonii'H-dniinil, 14 ( 'by. 8(!.
Where it appeared that the commistiii)ner of
crown lands, in deciding lietweeii rival claimantB
to a lot to which neither had any right, was
under a false impression as to a matter of fact,
and the fact had not ))een untruly stated by the
party in whose favour he decided, and was not
shewn to be material, the court held, tliat the
error was not a sutlicient ground for .setting
aside the patent at the suit of the disappointed
claimant. 1 1).
3. For Frawf in Pronirlinj,
(a) Priifllcc anil I'lcitdiuij.
Several persons being in possession of separate
porti(ms of crown land, tiled a bill, claiming to
nave, by the invariable usage of the government,
a preemptive right each to the purtioii he was in
possession of, alleging that a patent had been
obtained for all the lands by a defendant through
fraud, and praying that the patent might he
rescinded. A demurrer to the Viill for misjoin-
iler was allowed. WcMhruoki' v. T/ic Allornvy-
Gi'nemI, 11 Chy. 2t»4.
A bill by a jirivate individual impeaching a
patent for fraud or error, must shew that the
plaintifif's interest arose before the patent was
issued. Mutch more v. Davis, 14 Chy. 34C.
This rule applies whether the plaintiff's in-
terest is under another patent for the same land,
or under a contract of purchase. / h.
A liill by a squatter to set aside a patent for
fraud or errt)r, must allege the custom of the
crown in favour of scjuatters, and such other
facts as may shew his interest. Co.sijrorc. v. C'or-
hetl, 14 Chy. 617.
Possession of crown lands by a person who
entered under an agreement with an another to
clear and improve for the latter, on stipulated
terms, is not such a possession as entitles the
occupant to maintain a bill to set aside a ptvtent
to the latter, on grounds of fraud or error un-
connected with his own interest. CoMirorc v.
Corbt'll, 14 Chy. (il7.
A bill which shews ground for repealing a
patent is not demurrable for not shewing that the
plaintiff was entitled to have a patent issued to
liim. Jieesv. The AUorncii-Ui'nend, 1(> Chy. 467.
A bill alleged that the patentees obtained their
patent by false representations to the govern-
ment, and shewed a case in which the patentees
W(nild not be e''''itled to compensation if the
patent were set ...de and the laud given to
another : — Held, that to such a bill the attorney-
general was not a necessary party. / b.
A bill was filed impeaching a patent as having
been obtained wrongfully ; tlie aefeiidants were
the patentee and his vendee, who had not paid
all his purchase money. The patentee answered
denying the equity claimed ; his vendee allowed
the bill to be noted pro confesso : — Held, that
the plaintiff failing to establish his case against
the patentee, the bill should be dismissed .against
both defendants. McDermott v. McDcrmott, 3
Chy. Chamb. 38.— Mowat.
•• i
I
III
t i i'
' \( ' i:
'■ If
^'1 ■ !'
971
CROWN LANDS.
3<:
(1>) ()//::■>■ (Vmcv.
A l)ill liuiiig filud to rescind ii uontriict for the
])urc'l>:iNL' of iiu Indian riglit to certain lands on
the (iranil river, an<l to net aHiile the aMHignnient
exeented in pnrsuanee tliereof, on the gronnds or
frandnlent niiHreiu'eHeiitations, or to obtain com-
pen^ation tor an alleged deticiency in the (|uan-
tity of tlie lands : -Held, that as the whole
estate l)oth legal and eiinitahle was in the crown,
it was not a ease in which tlie court would inter-
fere even if the plaintitl' hail estahlished the case
stated in tiie l)ill liy evidence ; and that no fraud
having l)eeii proved, the bill ought to be dis-
missed with costs. /iiiirii v. Wruf, 1<). S. 'J87.
The plaintitf having i)urcha.sed at shcrifF's sale
all the interest of a bargainee of the crown,
placed defcn<lant in pos.session. Afterwards the
crown land ilepartinent advertised these lands,
amongst others, for sale, at a stipulated price.
The rule of the department in all such civses w.as,
that the occupant of lands was entitled to a
right of preemption, and the defendant, conceal-
ing the nature of his holding, applieil for and
became the purchaser, and (ititanicd a patent,
after notice to the government of the plaintiff's
claim. The court declared the defemlant a
trustee of the lands, and ordered him to pay the
costs of the suit. Donijnll v. L<nnj, 5 Chy. 292,
Patents issued upon a right' of preemption
obtained by fraudulent concealment of other
existing claims to such right, are void. The
Attorney-Ueneral v. McNulty, 8 Chy. 324.
If a party knowing that another claims an
adverse right to preemption, or that there are
circumstances which may give him such right,
applies for the lands, and does not state these
circumstances, such snppressicm will be con-
sidered fraudulent, even if the circumstances
were already known to the government ; and a
patent issued upon such application will be
declared void. //*.
Parties dealiuj^' with the crown lands depart-
ment nuist be fair and candid in all statements.
Where, therefore, a bill was tiled to set aside a
patent, on the ground that t lie same had been
80 issued in ignorance of the opposing claim of
the plaintiff, upon the frau<lulent misrepresenta-
tions of the patentee, and the concealment of the
facts by him from the crown lands department,
the court, although unable to afford the relief
sought, dismissed the bill without costs as against
the defendant who had thus dealt with the de- j
partmeiit. Linrnnfc v. /'oHfcCK//, 9 Chy. 474.
A pntent was issued to A. in consideration of '
improvements on the land, but the benetitof these
improvements had, on an arbitration between A.
and B., been adjudged to B., and the adjudica-
tion was in no way impeached or discredited ; j
and it was shewn to be the settled policy ami !
practice of the crown to issue patents in such
cases to those entitled to the improvements : —
Held, that though the award was known to the
offtcers of the government, the patent should bo
set aside at the suit of the attorney-general, as
having been issued through fraud, and in error
and improvidence. Altonwy-Geiicral v. Mt-NnUy,
11 Chy. 281 ; affirmed on rehearing, Ih. 581.
A bill was filed alleging that by statute the
Grand River Navigation Company could take
such land as might be necessary for the purposes
of the act, suliject to payment; ;uiil in ,.,,, ,
dispute arl)itratoi-s were named to dittririin..,'
amount ; and the coiniien.>«ation was in t],„ '"'
i 1 1 ^ ..." I'll NUja
manner to hemaile for any Indiiin lamls riimi
for the unilertaking. The bill idliucl tln't v
company liaving claimed about iiini'^yniii'irN
forming part of the village of ( ■,-,yuj^,,i^'| ■
Was then occu])ied and iniprovcir liy „.y *
parties, an arbitration was had in ii's)iiTt tluM
on the 30th of ( )ctober, 1847, when an awanU
niaile directing the payment of I'l.V.l ,«. inrt!'
right of the Indians therein, but that im imti,
was given to the occupiers of tiio lainl, ii,,r „'
anything further done in the iiiattt r until .lam
ary, 18(i4, when the assignee's of tlif amm\
applied to the government for tlic alisoluti. |,|,(.
chase of the land, untruly rei)ri'si'ntiiii,^ ;„ ,i
bill alleged, that the comi)any liad ■'iinc im,,
possession under the award and wvr^ tlau <[
peaceable possession ; that the (inly ini|irii\>.
nients made on the land were sn ni.ulf L
S(piatters with knowledge of tlu' luiniiiuiy'i ■
right ; and the applicants were thiMvuiHin alliiwi,!
to purchase for the sum awarded, ami inttint
n.' ini|irnvt.
although in reality the land, by tl
ments of the occupiers, was tlawi wiirth ten '
times the amount. The bill praytd tn sut asiile '
the patent as having been issued tlimngli iraud
error, improvidence, and mistake. A rieinurrtr i
by the patentees for want of eijuity was nver I
ruled. Wi'xthrooke \. T/ic A/lijnirn'.i,;,!,,;,! u\
Chy. 3.30. '
Quiere, -ttlieiner, although a pi'rs.m may h;i\t I
been entitled to a grant, yet if on aiiiilviiig |
therefor, he knowingly makes grii.s.sly false Vci).
resentations to the government, the patent iiiav j
not be set aside. //>.
VI. CkoWX TlMllK.I!.
1. Crown AiU'nls.
Held, that umler 12 A'ict. c. 30, a erdwn laiul
agent is not authorized to seize lidanls made
from crown timber cut wrongfully. Jioliiiiion,
C. J., diss., who held that such timher might !«
seized in the shape of boards, and not meulv
while unmanufactured ; and that even if tliis
were otherwise, the plaintiff, on tlio facts statnl,
ccmld not maintain trespass against the ai'eiitai
a wnuigdoer, and recover from him the viiliiu nf
the boards. Milk'r v. Chirk; 10 (J!. B. !l.
Held, that crown timber agents have iin Icjal
right to dispose of the timber u|ion lands suld
by the crown lands agents, and that they eaiiiii
no way affect the rights of such inueii.iser as
against trespassers : (Hover r. Walker, .') C. P.
478, alHmied. Ah:r.under v. Bird, 8 G. 1'. 539,
C. S. C. c. 23, 8. 1, enacts that the comniii-
sioner of crown lan<ls, (U- any agent nnikr him
authorized to that effect, may grant licenses to
cut timber : — Hehl, that a })er.siin apiMiiiiteiltlie
agent for crown timber for the western division
of Upper Canada had not, as such, any imwer
to grant these licenses. Farqnhnrxdn v. Kii'nilil,
25 Q. B. 413.
In trover for timber by a licensee, -Helii,th.it
the licenses were sufficientlj' proved I»y the evi-
dence of the person who issued them th.it lie
was the crown timber .agent, and had acted i^
such, and issued these licenses in the disdiariK
of his duty. Boi/d v. Link, 2!) (J. B, 365,
■'"J
"t : :iHil ill , ,i>, i
il tc, ili'ti-niiiii,...;
U.I aiMls n.,,„„i
11 :ill.a,.,l tl,„t ti.
It inii,.ty.„iit.a,rH'
"f '';'>•"«■!, Ml,,,;
irnvcl l,v ,„v,,^
' j" IV.siurt tluT»i
rt'licii:ma\Viir,l\n
iif tl:)!l ,w. ti,,.;!,
'"It that i,„ii„u;
tlif laiiil, n.ir wn
"HiittiT until .laiit.
'-'« "'' till' niiii|,ai„
r till: alwiiluti'[iiii.
Jlirisciitliii;, aa tlit
My liail giiiii,. j|,t„
iiiwi wi'iv then in
tli*^ (inly iniiiriivv.
«'i'i-i' s(i niailu In
'it tlif i-iiiii]iaiiv's ]
;tlicmi]i(inalliiw'i,i !
rili'il, ami intiTtst,
U l>y tlif inipnive.
i* tiiiMi Worth kt .
lii-ayfil tusut aside
uoil tliiMiigh fraud,
;akc. A dunnirrtt |
f tM|iiity was uvtr.
'.tl<jnici/-(ltiin-iil, III
II lii'i'S(iuniayh,i\c[
•ut if (HI ainilyingl
s grossly false 'vti).
it, the jiateut may '
iIIlFK.
30, a crown laml
.'izc lioanls made
fully. Jlohiiijiiii,
tinilier might 1*
iunl not merely
that even if tlii's
the facts stated,
;aiMst tlio aj,'eiitas
liini tile value nf
MX,*. R !l.
.'iits have no legal
ujion lands sold
that they can in
uch pnrchaser as
Walker, :. C. P.
/>';*■(/, s c. 1'. m
lat the coinuiii-
lyent miller liini
grant licenses to
^mi apiiointeil the
western division
such, any \m\\a
lidfKdn V. Kiiiijlii,
iscc,--HtM,tliat
|-()ved hy the evi-
h1 them th.it he
1(1 had acted as
ill the discliar^'e
IQ. B, 3G3.
973
CROWN LANDS.
974
Hiijlilx of Lii'i'1111'11, I
A iKirtv (il.tiiiniiig from the omwii aj^eiit a
• ' , ti) enter upon certain land, and to cut
"'''""^ ■ tinibtT (pf particular dinien-
license
juch II iiiiivutity • , • ,
he might reiiuire, not haying l)y hucH
if
p"i*j'^,'(;l,"iri.xilusive i)o.sHesMi(_>ii (if the land, can-
MrL,
III
l^
not maintain tresiiass,
B. iril.
A heeiiac t(i cut was granted to the iilaintitl's ,
tlie'i-iiil (if Ndvenilier, I.S()5. On the (ith of
lleeemlii'v dctViMhuit purehased the land, taking ;
' ....ceilit in full from the bank agent at ( 'hathani. ,
Ontlie 14tli lie iditiiined a receipt from the C(nn-
missioner -if crown lands, an.f on the (Jth of |
Fehriwry, KS(')<i, a patent issued to him ; - Hehl, i
that if the license had been dnly authorized, it
wmdd not have heon revoked by the defendant's
^rehase, until the issuing of tlie patent. Far-
\ license to cut timber under C. S. C. e. 23,
ha^^ hv the statute the efl'eet of a grant of the
tiuiliei' cut, and though not under seal it is not
revoked hy tlie issuing of a patent for the land.
MfMMii "■■ J/'"'''"'"". -" ^i- ^^- •^''•
Qua're. whether, as was assumed in this case,
the h(d(l(Jr of a license whicli has expired may
sue fur trees cut during its currency. Uhitt v.
Diinfo/i, r, (.>. I''. 287.
licensees of the crown of timber limits, cover-
ini; allowances for roads, are not liable for
cutting timber on such allowances, under the
authority of the crown, when no steps liave been
taken hy the luuiiicipality to pass a by-law deal-
iim with such timber. The Cur/ionition of the
UniMii of Bm-ki<ih v. Vampbe.U, 18 C. P. 457.
But after the passage of such by-laws the 20
4 1)0 Vict. c. .")1, for the jtreservation of the
muuieiiMlity may sue the licensees for cutting
g«ch timher, even though the licenses were
panted heforc the by-laws, the licensees at the
time of cutting having had notice of the liy-law.
J\» Ctiriiordliiiii ('/' tli<' Towmhiit of JJurrif v.
(»*ilal.,iOC.'l\ sua
Qua're, whether such licenses c<infer the right
itocut timber (in the road allowances. .Semlile,
not /'(.
The last case affirmed in appeal, and— Held,
that the licenses did iKit authorize defendants to
cut and carry away the timber from the road
jallowanees. 'S. t' 21 C. P. 21.3.
\Vhere the plaintitt' entered on lands of the
[crown in the summer months, without any right
[ of oeeiiiiatiou, .ind, no one hindering liini, cut
Uiul cured hiiy, hut was prevented from remov-
'ini; it hy defeiulaut, who subseiiuently took
I possession under colour of a timber license,
I which, however, was only in force during the
I winter months :--Held, that the plaintitt' had no
< right of action against the defendant for the
I value of the hay so cut, the former shewing no
i better title than the latter. Gralunn v. Heennn,
('20C, P. ,m
Quivre, as to the rights of licensees during the
tint(;rvalshetween successive licenses. //>.
.\ bill was filed in respect of certain timber
[limits by two of the devisees and legatee of the
I original licensee thereof :— Hehl, that the suit
I ought to be hy the personal represf iitative, such
licenses being personal estate, fiiniiif v. O'Mi-n-
ni, l."> Chy. 3!»1J.
The plaintitVs wore in piitsusHion of certain
timber limits under a license from the crown,
which exiiired in April, I.S72, liiit it was tlic
practice of the crown lands department to recog-
nize the right of licensees to a renewal, and a
renewal was granted to the plaintill's for 1872-.3,
and the ground rent jiaid in iidviiiice, the jilain-
titl's remaining in posMcssion, In coiiseipience,
however, of some (liliieulty about the bounda-
ries, the license did not issue until the ."tth of
.April. 1873, but it was stated to cover the pe-
riod from the 2()th of .lune previous. During
this period certain persons, under whom defen-
dant claimed, entered uiion the land and cut a
(piantity of saw higs ; and on the plaintitt's going
to where they were lying in a creek or river on ■
their limit, for the purpose of marking them,
they were forcibly prevented by defendant, who
oiiened an artificial dam, and caused the logs to
be Hoiited down the river, where they got mixed
with some of defendant's logs. The plaintitt's
then went to where the higs were, and selected
tlie logs in (piestion, being of the same size and
description as his own logs, and marked them : —
Held, that the plaintitl's might maintain replevin :
that there was sutticient evidence of identity ;
and that at all events, as thti defendant's own
wrongful act was the cause of any dilHeulty, he
could not object on this ground. The plaintitt's
being in jiossession, though they might have no
title as against the crown, could maintain re-
plevin against a wrongdoer. Giliiiutir it al.- y,
liuck, 24 C. P. 187.
.3. Other CfineM.
Plaintitt' got out a (jnantity of timber, and
placed it in a creek communicating with t le
intervening rivers for transiiort during the spi -'ng
freshets to (Quebec. Defendant, who ^"r.s the
lessee of the crown of certain timber lii-ats within
which the creek was, obstructed the latter with
fallen trees, &e., and thereby caused a large out-
lay to plaintitt' in the removal of the obstruc-
tion.s, and prevented his getting his timber to
the Quebec market. Defendant put iii a sworn
and examined copy of the original map from the
crown lands department of rwent date, .and
containing defendant's name as entitled to the
timber limits, to prove that the creek was within
such limits :— Hehl, that this coupled with the
fact that he had been for many years in posses-
siim of the timlier limits, culling timber thereon,
and improving the same, was some evidence to
go to the jury that he was not a mere intruder
on the rights of the crown. Whelan v. McLuch-
III),, 1() V. P. 102.
The patent contained tlie clause then usual,
(17!H>), saving and reserving to the crown all
white pine trees : — Held, that notwithstand-
ing this reservation, the plaintitt', claiming under
the patentee, could maintain trover against de-
fendant for the white pine, for the soil in which
they grew was his, and he was entitled to their
shade as against a stranger, t'cifmeliiiiiii v. Jler-
m'!/, 32 Q. B. 333.
Held, also, that the evidence of possession,
being such as an owner could be expected to
have yji wild land, would alone have been sutti-
cient to entitle the plaiutitf to maintain the
action, lb.
■
;i I r
::i I 'I;
' I ■ i
iiP
( '!■■
f":i
oyrj
CROWN LANDS.
Xi
AVlit'ii' tiinlfcr uiiliinfullvtukvii from the crown
prtiin'ity wiiH sulisiMiiifiitly tiikuii liy foroe out
of tlio jiiisHfs«i(Pii of tlic lirst tivkor, wlio ri't'oviTi'd
ii juilunu'iit .'igaiiixt the trcMpiinHcrH, wliicli iii-
chick'd tlif viiliif of tlio tiinlu'i' : — Ui'hl, that tliu
iTowii was I'lititU'cl to I'hiiiii ho inucli of tliuir
puyiiicnt as ruiiifMi'iitt'd the vahie of the tiiiilier,
c'xchisive of the hilfiuir ami money exiieiideil
uiioii it. 77(c At/drill i/-(i'iinrtil v. J'ricr, 13
tOiy. ;«)4.
Tlie (lefeiidant was ordered on nrgumuut to
pay the eostsof tlxe rehitors. H. C. ISt'liy. 7.
The hieatee of erown hvuds located under
authority of tlie aet of 18(i8, has no power to
sell or dispose of the ipiiie timl)er growing theru-
on. J/iiij/usini V. r„„i; '20 t'liy. •2:\S.
One S. was theloeateeof twolotspf land, onea
free grant, the otlier a purehivso, which he trans-
ferred to the ]ilaintitf. The agent of the j)lain-
tifl' swore that some pine timber had been taken
otr these lots in 1870- 1 by some persons getting
out Sijuare timber, and further, that the <lefen-
dant was the only person getting out sijuare
timber that season. After two years the court
eonsidere<l this evidence too indetinite as to the
locality of cutting and as to (piantity cut ; and
the act too old in date to warrant the court in
granting an injunction to restrain further cut-
ting. 7/*.
See EdMca/lv. Ilitmill, 16 C. P. 93, p. 977.
I ejectment
4 Vict.
Doe d. McKay v. /////(•.', 7, j j ,,
The agent for the disposing of
VI. MiscEi.L.vNEors Cases.
The leaoe of a crown reserve having expired,
the court refused a writ of restitutitjn after a
conviction of forcible entry and detainer. Jfex
V. Jiirkxoii, l)ra. HO.
A. having a claim ujxin the government for
certain wild lands, gave a Ijond to B. to procure
the patent for the same in B. 's name, on condi-
tions that B. should pay him a certain stipu-
lated sum on a fixed day. He did so obtain
the patent, ami informing B. of it, reipiested
payment. B. , without refusing, put it off, and
afterwards an action of assumpsit was instituted
to recover this money, in which the plaintitt' de-
clared, among other things, for the value of lands
sold, and for services rendered in procuring let-
ters patent to B., granting him certain lanils in
fee simple : — Held, that A. could recover. Kit-
born V. Forester, Dra. 332.
Government contracts for sale of lands. Time
of the essence of the contract. Ewimj v. Oood
(iiid the Atforiicy-Oeneral, 1 O. S. (55.
Where the owiier of a lot of land encrofiched
upon an adjoining lot belonging to the crown,
and took three successive crops oft' it without
any permission from the crown, and another
person who had taken possession of the same
land also without license al)out ten years before,
and paid taxes and niivde clearings on it, warned
off the owner of the other lot after he had taken
the third crop, and then cropped the land him-
self : — Held, that the owner of the adjoining lot
had no property or possession to maintain tres-
pass against him for that crop. Killichan v.
Jtohertmn, C O. S. 468.
Evidence will not be received to shew that a
grant from the crowni was improperly issued, so
as to enable a subsequent grantee to recover in
11 11 .. 1 ■ -1 - '''^' '"'■«
lands on the (.rand river does iKJt cuiin. ,||7
the ilesignation of a district agent of tin. '*
missioiier of crown lands, so as to intitlii*
chasers holding his certificate to tliu Idiitlit j
the provisions m the I^and Hale Acts, )"„,„ „
.SVo/-,V, 10 (^ B. 372. '
A., being the noraineo of the cinun, trii
ferred his ccrtitic^ite to B. in i7!itl, nin,
after by writing, not under seal, i.(j'ntr,uu"l J
sell to V. It was not shewn MhilluT C lui
made the payments specified iiy liis ai;iiTnir
but he went into possession, and In- m,,] ^
descendants had liefd uninterniiitiillv for inoil
than fifty years. The defendant ilaiincl u\„
them. In 1837 a patent first issiud tn 1
whose heir brought ejectment. It was left tl I
the jury to nresume a grant niadu liv A. Iufnrt
the patent, but they found for tlic iil'aintitf, aiij
the court refused to set aside the vciilict. ' \\t
Uomtid V. PreiilinH, 14 i.). B. 79. .Sou also £i,;,J
etal. V. M,u-u'*tl, 17 (}. B. 173. "'
.Semble, per Draper, (.".J., the cmwu iiiiivmut
a tract of land by a suHieieiit ili'snijjtupn to ]
designate the portion meant, altlioiigli tlie tiw!
ship within which the land liis has Hdt lieejl
surveyed and laid out into lots and Ldiai-ssldnj-
and the grantee will be entitled td lii.M it ,^.'l
though a subseijuent survey made liy autlidritv I
of the crown makes it by name a ilitrmiit lo(|
or places it in a difi'erent concessinn fidui thati
named in the patent, or the surveyor lyingitoiitl
projects a road through it. Jfunn v. .1/h„,„ ' I
C. P. 43.S. ' '
A. , a crown lands agent, being asked liy the I
plaintiff' whether there were any lands fnf sale |
by government in the township ("if M., tcild
that there were not, but that B. had itrtaiii luts I
there, to which he would sell his light, and the
pliiintift' being introduced by A. to H., jiaiiltlie
latter £50 for his good will, together with tlutirst
instalment re(iuired by governincnt, and leccivetl
from him a receipt for the latter signed hv A. at
crown lands agent. Tlie jury foiiml that the
r'.'presentation that there were no lands fur s;ile
was false, and made by A. in oonctTt with U. to
enable the latter to obtain an advance uimii the
government price :— Held, that the t'JOaiidiii
terest might be recovered in an aititin against
A. and B., either upon a special count chargiM
the false representation, and the damage sulftrKl
in consecpience, or as money liad ami lecciveil.
McMitxter v. deildn^ el al., 19 Q. K I'lb'.
One W., as agent for ,J., sold to defendiot
two lots of land for S10(X), receiving ,'*I00 dovrn
and defendant's notes for tlie lialaiice. Thij
land had been purchased from the crown in
1854, by one Wake, who had assigned his right
to Colvin, and Colvin to J. The instalments
had all been paid to government, and W. told
defendant that when he did the settlement
duties he coulil get the patent. He also haiiileJ
to defendant the assignments and reeeipts, irith
an assignment from J. to defendant. The lots
were then vacant, and defendant sium after went
into possession and performed the settlement
duties, but when he applied for his patent he
was informed that the original sale to \Vakehad
been cancelled, as having been obtained iiifranJ
of their regulations ; and to avoid losing the
^^
^«','/iv'', T.T.Ji
I'g <'!' till. |,„i^
i licit (Milin; iiii,lj
Igfllt (if tllf o».
iVM t(i I'lltitll' 1 ...
; to till' liiiii'iit j
u Auts. )■„,„„„'
the i'i-M\ni, trsa.
II IT'.n;, will, »,.,
eiil, i.(intrai.u.i|i,,
II wln.tlit.i. V, i^i
liy liis a^iruciikir,
1, llllii \w ;in,l ii,
rniiitt.illy fur m^,
rtiit rlaiiii(..il inula
rst issiiuil to A.,
it. It was Icitto
inilili: liy A. litliin j
ir till' iihintiff, aui
tilt! vi.t'ilict. Ml.
ill. SemilaiiAWu]
le iTiiwii iii;iy grant j
out ik'scriiitidii t»
iiltiiough till! tiiwn. ■
lii's liiis imt lietji
ts luul I'lmii.ssions;}
;itlL'il to liiiM it ,i[
iiiadi' liy luithiiritjj
lanu' a ilitriTiiitlot,!
.Hit'L'ssioii from that I
urvt!ycirlyiiigit(iui|
7/orHt V. Mimn,]\
beiuj; askeil liy the 1
c any lands for sale
hill (if M., tdlil him
, li. hail oi-rtaiii lots
I his right, ainl the
,' A. t(i H., [laiilthe |
gether with tlu' first
iniient, and reotiveil j
.tor signed liy A. at
iry fcinnd that the
■e lui lands for sale
I'diioert with li. to
ji advance ui«iiithe
lat the ,t,")0 ami in-
|ii ail action agaiiut
|L'ial connt chargiM
llie (hmiage siitforw
' had and reci'iveiL
Q. R 'JIIJ.
Isold t(i defendant
Icuiving .SlOO ilowii
Ihe balance. Thii
|-(>m the crown in
assigned his right
Tiie instalments
liieiit, and W. U^ld
Id the settlement
He also li,mW
laud receiiits, wih
fendant. The lots
Lit soon after went
led the settlement
I for his patent he
^ sale to Wake had
J obtained ill franil
[avoid losing the
977
CROWN OFFICE.
1. 1 lie ;ii;aiii imrcliased it from the govoriiineiit ri'voko miili iipiiriipriiitioii.
f "VoW. '" "" '"'*'"" '»'""«•>' by .I.'h ii>,'t'iit Ciiy. •J(i7.
Siiiiji.
978
V. Ilnnit, 5
»!,.. iiiiti.H \V. Hwciri- timt liu biilii!Vi'(l wliat
iiiKiiiim M"('^ .^» 111 1 1 i
' t„l,l,|,.f,.n(laiit to bf triu', ami had in. (bml.t
I .ikii liclicvcd it, and thori! wan im pruof totlu-
il.dd,
I'fl.lHV
,1. al
contrary
sustain a
tiiore w.l^ ii"t a
and that tiie
recover
lliclaiatioii, that
lii'i'ii jiaid by him ; whi'n'as
and and timber woro imt di^feiidaiit's jiro-
nor had defendant any riyht to ^'raiit to
that thi'iv \va.M no I'vidoni'i' t
(in tilt! ground of fraud ; that
tot.il failuri' of I'dusidoratioii ;
• iilaiiitilV thorofort' ^^a^4 untitU'd to
iro//.c v. Duioiias.,, •.>;}(,). 15. \y
Iffoiidiint inteiidinj,', itri'. ,
falsely and liiiudtilcntly roprfsi'iitiMl to plaintill's
that the land and timber weio defoinhint h, iind
tint he had th(! right to grant to idiiintitls thi'
iirivilegcdf cutting till, tinibi'r therooii. and that
all crown dues in re^iicet of ^'m.■h timber and the
cutting thereof had been paid by
the
iilaiiititl's the privilege ot cutting tlio timber, nor
iviil the .said duos l>t'f" 1'!"'^ '»>' defundant, as do-
fentlant well knew ; by reason whereof the plain-
tilTs were induced to contract with defendant to
iiurcha.se said timber, and paid him .*i88 for the
same and for the privilege of cutting it, and not
to investigate the title to the hiiid and timber ; I
ami relying on the siinio they cut and conveyed
tiidueliecthc said timber to be sold on their be-
half; and that by reason of the premises, and
btfi.re sate, the timber was sei/od on liehalf of
the crown for non-payment of the said dues, .
anil iilaiiititl's had to pay the same and damages j
for the illegal cutting thereof, and were deprived '
thereof lor a longtime, and prevented during that ;
time from selling same, and the same became
greatlv ilciiieeiated in value :— Held, on demur- ;
rer. ileelaratioii good ; for it sufHciently disclosed
aciiHc of action against defendant for assuming i
framluleutly to sell the privilege of cutting the ,
timlur discharged from crown dues, when it .
Has not discharged from them ; and th it it did
notimifesstoset out a case of either defendant '
<ir (iliintitfs being mere wrong-doers, without
Jiceiisc of any kind from the crown . Qinerc, as j
t<i an action i)n the case lying, where the cause
cf aotitu arises from matter of cmiti'act. Edmull
tld\.llnmvll, IGC. P. 93.
that the evidence set out in this case
The third section of 4 & ."> X'ict. (..
authority to the governor in council
upon claims to free grants of land
ICM). giving
to ailjudge
ler any
irder ill e(miieil then in force : Meld, to apply
to located lands on which iiiiiudveinents have
b(.en made as well as other lands. .S'm/i/mo/j v.
ti'niiil, .") ( 'hy. '-'liT.
A widow is entitled to dowt.r in lands piir-
eliased from the crown by her di. ceased husband,
and whereof be died possessed, altlnuigh no
patent issued therefor, and the iiuri.hase money
Ii.ad
t'hv
not been
4s;i.
all ]iaid. Cruhj v. 'I'l in/ililuii, S
Hel
was insuilicieiit to prove that a sale of land to
. fmui the crown had been effectually avoided.
|fo/iriinc v. Md)uiHtlil, 11 C. P. 202.
The iirovisiou of '23 Vict. c. 2, s. 28, the
ICriiwn Laiidsi Act, that all atlidavits rctiuired
Itkremuler may he taken before "any justice of
tthe [k-ice," only empowers a justice to admin-
|isti'r the oath in a place whore he can act as
[«uch justice. Ittijiiui V. Afk-iiimiii, 17 V. P. 2!),").
The same interiiretation of this act apjilies to
»mmissioiieis for taking atlidavits meiiti(med
[therein. Ih.
MA, that sec. l,S, 0. vS. C. c. 22, was man-
latory ami not permissive, and that a license
' oeeuiwtion shmild be issued to every person
rishiug to jmrchase, lease, or settle on any
»wu Lanil. Street v. The Corporation of the
fount ijiif Kent, 11 C. P. 255.
.\u onler in council was made after the 7 Will.
.'■. c. 118, and before 4 & 5 Vict. c. 100, appro-
bating land to certain religious purposes : —
^eld, that under the 27th see. of the latter
atute, the governor in pouncil had power to
62
She is also entitled to one-third of the rents
and [irotits for six years before the conimence-
ineiit of suit. J li.
A jiatent was issued in favor of a person, who
had died six months previously : -Held, that
her heir could not lilu a bill to set aside a con-
veyance executed under a power of attorney
from her, alleged to have been forged, liroiine
V. Cram, 14 Oliy. (>77.
Tt is no part of the functions of this c(uirt to
take evidence or Iind facts, upon which the
otiicers of the crown may act in the disposition
of the rights <>( claimants to grants ot crown
lands. III.
The plaintiff, having no title, assi^'ned the
land in (piestion first to one C. and afterwards
to one NI., to secure certain advances. The
crown having issued the patent to L'. , the plain-
tiff sought to get in the legal estate outstanding
in C, but without paying ^I. : — Hehl, under
the maxim "He that cimies into eipiity must do
' equity," that he was tirst Ixmnd to pay the
i advances made by M. Wnjii'mn v. Mihlrnin, 15
Chy. 377.
J. AV. \\., a widower, waslocateeof thecrowii,
and agreed with his son, ,1. R, to assign his
interest in the land on condititui of his son
making certain payiiK ats and jierforming certain
services for the father, which were all duly
made and performed, and afterwards the patent
was issued in the name of J. B., by which name
the father was known to the officers of the land-
granting department. Meanwhile, before the
issuing of the patent, the father married again.
The son during all the father's life continued to
occupy the premises, making valuable improve-
ments, without any claim by the father, except
j for his support under the agreement made be-
. tween the father and son. After the father's
death, the widow Hied a bill for dower in the
j premises, but the cimrt -^ Hehl, that even ad-
'■ mitting that the grant of the land was to, and
was by the government meant to be to, the
■ father, that he could be treated only as a trus-
i tee for the son. dismissed the bill with costs.
BiiniK V. Burn.-', 21 Chv. 7.
OIJOWN OFFICE.
t
It is not irregular to sign interlocutory judg-
ment in the tittice of a deputy clerk of the crown
in the country, at an hour when by rule of court
the principal office in town is not open. Hall v.
Hunter, 5 0. S. 705.
i
f!
: I
1 ■;
■' ■ 'i
1 i !
•! 1
! 1
: I
I fl
979
CUSTOM AND ITSA(JE.
'HH\
WIhtc tlu' ili'l'i'iiiliuit'i* attorney in iiri'Munt at
till' i>|M'iiin^ III till' iillicc ill the iiiiiriiiii^' to tile
a jiiiiiili'i' ill ili'iiiiii'i'i'r, mid tlic |ilaiiitill V iittnr-
iii'V i» iilto pri'-ii'iit tci High jiiilmiK'iit, till' ilct'cn-
(laiit'N iittiirni'v in ciititli'il to iniTcdt'ini'. Fni
/ii'<' V. //iiil'iiniii, I ( '. I.. ( 'liaiiili, SO, Maciiiiliiy.
A pL'I'siill in ilititli'il til Hoaii'll at tlir iTnMII
iillii'i' fur iiiil;,'iiniits aj,'aiiiHt aii\ luiiiilMr nl [ler-
NiiiiM iiaiiii'il, aiiil till' t'li'rk :-li<iiil(l allnw him to
make such seanli, it' a Imii,' one, at whatever
time is most eolivelliellt « it ll leHpeet to the ot her
Imxillex.H of the olliee. Ife i.-t not entitled to
search the iiid;,'ineiits entered iliirin^' a iiartieiilar
jierioil, without refeieiiee to any named partieM.
Ill I'v Ctiitiiilii 'I'rmh Aiviciiitiiiii, 17 ^i. M. .">4'.'.
T' erown olliei'H Mhoiild not lie o|iened for
IniHini MS on Master Monday, and a jiidjiinent
entereil on that clay was set aside, for irre^'ularity,
with eosts. 'I'riisl mill l.unn Vii. v. />iri'n<ill,'2 1..
.1. N. S. Kid. ('. L. I'liuml). Oruper.
An attnehment was granted iijiaiiist a deputy
elerk of the erown for having issued servieealile
iiroeess without authority ; and afterwards, on |
'lis appearanee in term to answer interrogatories,
the eoiirt ordered liiin to lie dismissed from his
otHee, and to pay the eosts of the [iroeeedings,
J,',.r V. Fmti r, ;i (I. S. •J47.
A dejmty clerk of the erown HJiiiuld not tile
papers at his private residence, apart from his
otlice, and lait of olliee hours, Fruliik v, //",//-
man, I C. L. Clianih. SO, -Maeaulay.
The delivery of a pajiur to hint in the street is
not tiling or entering it. Ih.
Tlie court refused a rule to set aside a ti. fa.
because issued hy the otHeer at his own house \
before otKce hours, llulhrw Fitlhi; 10(.,>. 15.477.
The deputy clerks of the crown have no power, 1
under the l-'Otli rule of practice, to issue rules for
costs of the day. IVIiiti I't nl. v. Sliln , 7 h. J. i
20t>.— C. L. Chnmb.— Burns.
Where an a]ipearance was duly tiled with the !
deputy clerk of the crown, but entered by him _,__^ ^^ ^__
under the wrong letter, and judgment was in i oi O. B. 323,
couseiiuence signed, such judgment was set aside '
with costs. Uriiit IVis/irnJi'. 11. Co, v. Jinilii/a,
limiitfin-il awl <li,il,rkh It. 11'. Co., '1 \\ It.' 133.
— r. I'.— MclAjau.
Putting an ajipearance under the door of the
otKce of a deputy elerk of the crown during otKce
hours, or banding it to him in the street, is not
a due entry of the apjiearance. Sucii a practice
is not to be encouraged under any ci 11 unistances.
(h-i II V. Sfaayital., 10 L.J. 'J4o. — ( '. i. 'lliamb.
— Draper.
AVlien an appearance properly entfled wa«
tiled in the otiice of the dejv'.tv c.erk of the
crown, but was incorrectly entcij-.l in the ap-
jiearance book by defendant's attorney, and
plaintift"s attorney not taking the precaution of
searching the tiles, was led to believe that no
iippearance had in fact been entered, the judg-
ment was set aside, but without costs, as both
parties had contributed to the mistake. Moun-
V. .Sinnms, 1 L. J. X. S. 183.— ''. L. Chamb. —
J. AVilson.
lIlM.,.^
u.reanaj.^.earancetonwritilll|,H■,,,,,^
was tiled in the otliee ot the ili pntv ,1
e erown, who was also elerk of tin i ,^
iVfj
QuuTe, as to the liability of siii
damages arising from negleet in I
this respect. Ih.
Where an appearance t
I'leas
of the erown, wiio was also elerk ul tlul
Court, but by mistake was put with tjni
Court papers, and the stamps iiecisNUfi t, , •
ajiiiearanee in a superior court wan iii,t'.,))|J
till' plaintiir signed judgment as in ,i,.|,„||, i
.'ipliearaiue ; Held, that the ajipi uraiii,. „
nullity, and was absolutely voiil eiiijiitli,. (ii"'
,\et, and leave was refused to have tli" si,
atlixed as of tlit' day of tiling, nr to taki' \>*i
the County Court tiles. Jlmd' i.f I/,,,,/,';
J/an-Uu,,, 4 I'. H. 331. ('. I..Cliai.il,, i',,,:,,^
A eli'rk of the County Court, biiiiL;.i|j|,,.^|j,
cio deputy clerk of tlie crow Hand i liik (,| .,„^,
is privih'ged from arrestoiily w hile eiimiyiiinji,
otlieial duties, or while going tour ivtnn'nujff,,
his olliee ; and this court therefdif liiiihiniw,
rule to prohibit the County Coiiit iiiilui' tniiuj
suing an orderofeoiiiniitmenl against .sii,.
IliMl
//( /'I Markaii V. (iiidiImhi, 27 <,'. I!, '.'li,').
.•\ certiticate of a de|iiity elerk of tlio I'rin'.u
UA
the sliajie of a postal cud is no e\ idnni.,
son V. /.()»('//, Gr. I{. 70. C. 1.. Cliaiiil], -liiit,
V. V. .1' P.
CRUKLTY.
.\|,IMI1SN KOll -.SVc lIlsll\Mi AMI Win.!
CUMBl';iU.ANl) (•roWNSlJII' (i|\
The 23 N'ict. c. 101, declares tliu iiunit! ;
which the side lines of the first I'oin'fssiuii nil
Cumberland shall be run, and iiroviilus aiiiityl
by which those injured by tlie .liaii^v In.in tli«|
original plan of survey may obtain cdiiiiiiiisatJHiiT
— Held, that the general statute, 20 \i,t. c. ]i\
was thereby excluded, and that tliu (lifinilMil
was contined to this method, Sni'ith y. ,V/«/,v„if, I
As to the survey of this tow iisliii), Sec //./V(|
M,:K<chln, 23 (^ B. 52, ,S21.
CURPiKNCV.
CUKTKSY.
See EsT.iTi;.
Remarks aa to the irregularity and impropriety
of attorneys making entries which should be
made by the proijer officer. lb.
CUSTODY OF CHILDUEN.
I. BoHN IX Wedlock- .S'm' Infant.
II. Illeoitimate— .SVc B.\srAiui.
CUSTOM AND USAGE.
Where it is the usage of the trade tn carry i J
deck cargd iu iulaud iiavigatiuii, luiil siicli iisai-el
of Nlllh nlllM,.,
•t ill llW lIlltlHj,
«iit ill till' r„iuin
f til.' (Ii'lmtv r|<,
Icrk uf tliMnu-.
lit "itli thii „in
])« IICTl'MWiry flit,
llrt Willi ll"t;itluf^
lit iiH in ili.f.iiiit n
-■ ii|i|Hjiriiiiiv «i.,
i>i,il nulrrthi. »t,ia i
til ll;ivr til" stJIC)
Ji, "Y to tlilii' It jl
Hid' i;/' Mniiir.il-
I.. ('Iiiiinli. hniv'
ll'l, lil'ill«ill,snvX„AJ
I iukI cli'ii (i( i\t^l
•\\liilci'i1i;;im.ilmli|l
; tiMir ivtiiniiii|;irf|l
lil'ct'iii'i' iliNc'liiirjftilil
Coiii't ,iiiil^ol'riiiiij|
ilii).'aiiiit siirlii
7 <«>. 1'". '.'Hli.
I'U'l'li h| ilk' itiiv.Hl
* 111) cv iilrlicu, J.id
. 1,. I'luiiiili. lialtiJ
rv.
It^inMi \Mi W'lrl
iWNsmi' (iF.i
L'l'lurrs till' liii»ie ill
iif lirnt I'dlii'i'ssiiin nil
11(1 (ii'dvidi's aiiittlinil
tliL' ili;iiij;i' Iriim thel
iilitaiii c(iiiiiiiiisali"ii;r
itutc. •JO Vid. i'.;i|
1 tlmt tilt! iliiftiulMll
1. Siiiilli V. X;»iiY"if,|
iwiisliiji, St't' //','
Icy.
KV.
Iy.
I'l:.
lllLDUKN.
.Vm Infant.
Iastuui.
JrsAcr;.
lUc tnule to carry i|
lion, anil siicli m^\
981
CUHTOM AND USAGE.
983
LiidWii to fill' Kliil'l'i'i'. Ill' laiiiiot liolil tJK'
I" ,,.,. ,,!■ oiviiiT ri'Niioiixililf for a |iiut of tlic
1 1 |.,..„M,,„«ilitoH' in 11 Htoriii, till' liiiiof la.ling
llv!...»tiai; till' ilaiiK»iH "f navigation. .>V./(/(r/M i
|v .|M>1//, M. T. tl Vii't.
Wlietlii'i" in laxi' "f I"""' "f I'ai'iu'o joaiifil oil
Ilk till' «lii|i ow iH'i' will ho lialilf, ili'iicinls on
Itlirii'iifiu "I'i''' I'l-'^'''"'^ '" ••'•''l'i'''t to,!,., kloa.l-
i , ,1, tlu' parti' II lar iiaviKatioii. I'ni. rs.w v,
Ciini' aK'iiii'*f ''•'''■'"''""^ ,'iH a roini.ioii iMiiiir
f„rlo*»o'' P""'"' I'lca, not Kiiilty ; '.'. 'I'liat it
lu leibtoiii ill M'iv'^!i'''i'K l"'^'' "'itario to carry
ll"'' , 1 .1...1. .1... ..i..:..t:ir' i
|Klt'i|n.'lt
.•11',, nil iK'ili : that till' iilaiiitill's ^,ioiU wen-
la,l"ii mill "townl on ilwk ; ami that iv stoilii
«n-iii" tl"'.^' "'''''■ "' '"''^'•^'''■'*'^^■ thi'oM 'I o\ crlHianl
fur (hi' iii'm'''\'iii"" "' tl"' vi'MMci ainl larjio.
jHiliiiitioii iIl' iiiiiiiia ginorally, i„,t cxiiri'xxly
inliiiittiiig nor i^Nl'i'i'^'-ily traviTsiiio thr oust :
^lliM. 1"''' '■'"'• ^''''^ iiiiili'i' thisc |ili'a,lin;,'M, tlio
cnsti'iii ol tnuli'. as well iik all i|ii('stioiis toiiclin^
tii sliiw iii',L.'li!ii'ni't', I'itlior in the UK'tliocl of
IculiMi.'. or ill till' niaiia>,'i'im'iit of tlio vi'sm'l, or
ill tlii'tliroMinu' ovorlioanl tlii' g U without
ate ruHKoii, wi'rc [iiit in isHiu'. /'/.
\iti»ii foi'iiioiK'V I'ariicil liy iilaintilli as for-
wanliTH anil rai'i'iors. I'Ica. that aooonlinv' to
tlinii'toni ami iisa^'c of forwarili'is ami <arrii'rs
exi«tiit lit Toronto, I'oiisigni't's ari' aiitliori/o,l to
nav wiiai'liiifii'i's till' .iiiioinit dui' from tliciii to
liiilifiinvanliT!* ami I'arriors for tlio forwanliiij,'
or lariviiij: of tlioir gooils, and that ,li'fi'n(lant
10 jiaiil tliis iiionoy ; Hold, tlmt assnniino tlio
lllitp'l I'listoiii to lu' valid, iiotifo tlioroof to the
ilaiiiti'l. if not ai'iiiiit'si'dii'i.' tliuruin, should lio
^li'Uitl. Tiii-i-iiitfi 1 1 til. V. l/tii/it, •_'(.'. 1*. 'XIS.
Avdiniiisit on the cnmnidii (.'oiints for work
Ii41al«iiir, &i'., l>y iilaintitl's, who wi'ri' coiniiioii
jrriirsliy water. " I'loa, sottiiio forth ii delivery
(tlitgiiiiils lai'rieil liy iilaintitl' to a wliarlinuer
tT.,t» whom defendants, iirrtinllii'i In tin c".-!-
|(in iiir,' iKii;/, III' fiifii'iirdi rx i\tiil i'iii'i''ii rt III 7'.,
liiltlie Iilaintitl's' elaim ;--Held, jilea bad. for
JDtiivrtriiig mil'ii'i of the custom to the iiliiintitfs.
Ic.U'. \\T,\.
riaiiitilTs lioiiylit from defendant certain coal,
lipH'il to ili'ft'iidaiit at Toronto from a foreij;n
Hirt. anil then lyiii;,' on hoard the vessel in the
Willaiiil (.'anal. A sale note was given, stating
(liy the iiuaiitity and iiriee, and the time hy
wliiih it was to lie taki'ii out of the vessel : -
il, that ikfuiulaiit was not ohliged to jiay the
•irt ihitii's. Held, also, that evideiiee was
jitly atlmittfil to shew the usage of the trade
1 Nilcs iiiailo uiiiler such eircumstanees. Jirmrii
. V. Ilri.ino, 1) l,>. B. .Sl-J.
Till' iilaiiitilf L'lTei'ted an insurance with defen-
l»iit.- ,111 1'lrtaiii wheat to he carried in a schooner
Mil Piii't Ihirlington to Kingston, and from
Biiki' til Miiiitreal hy such hoats, harges, or
' , as iiiii^ht he deemed necessary and pro-
|ei' i'l the safe transiiort thereof. The schooner
Kiceeileil to Port Sidney, aliont three miles
tluw Kingston ; tliu wheat was there transferred
Da liarge, which returned to Kingston to eoni-
|eto litv eaigii, and while so returning the barge
stramleil aiiiltlie wheat lost. The idaintiff
Jikaviiureil to jirove a custom in supjiort of the
iurst taken by the schooner, but tne evidence
My shewcil that certain forwarders liaving
phijiiscs at Port Sidney had been in the
^it of iloing as was done in this case ; and it
a|i|ieared that no nIIiIi i|llestio|| as the lilenciit
had i'\er been raised ; Hild, that >ilili iVldilU'O
was wholly iiisiillicieiit, an, I that the jinlii'y wan
avoided by the deviation in the voyage. I'iiln r
v. Till W'lilirii Aiiiiriinri in., II i>». II. •_•.">.">.
I'laintill' slii|i|ii I W barreU of llmir at I'oit
Credit, ill a vessel of clefelidant's, to b,' I'lll'lied
to (jlllebe,', MUeh Vessel liiilig ia|ialili' ot I'.iiry illg
■l,.'i(M). She iiroi'i'i'ded to '|'oroiit,i, « lieri' she
took ill 't(M> bai'I'els mole, ami thiliee to OM\tego,
wlli're •_',4.'iO Wi'I'i' shi|i|ied for (,l||ebe,' also. She
was wiei'ked near Osweyn. I »ef('iidaiil was held
li.'llile hel'efor, sllih deviation being hey, 111,1 the
estalilisheil usages of trade. Wrii/lil y. Iluli'inilhi,
lie. I', .Vtl.
W'lieie theri' is a sti|iulatioii in n lease lor a
teini certain that the lessee shall deliver u|i all
the lamls at tln' e\|iiiatioii of the lease, all c|iies-
tioii as to a lustoiiiary light of the away-going
eio|) is excluded ; and Seiiihle, that there is no
custom of the country aM to the away going
eroiis in rinier ( 'aiiada. Hiirrmri -i \. i'iiinii<, '1
«.». It. L'SS.
The )ilaintilVs, .i li.iiik at Milwaukee, sent to
defeii, hints, a bank at Toi'iinto, for collection, a
bill drawn by ,\. at Milwaukci' on H. at Toinnto,
payable forty-live <lays after date, together with
a bill of lading indorsed by .\. for ci'itaiii w heat
consigned by .\. to 15. ; -Held, that in the ab-
sence of any instructions to the contrary defen-
dants Were not bound to retain the bill of
lading until iiayment of ilu' draft by I!., but
were right in giving it up to him on obtaining
his ai'ceptance. Kvidcnce having been given as
to the custom of merchants in such cases, both
in the Cuited .States and in Canaila : Held, that
the latter only could be niateiial. ir/'-ico».v/'/(
Mtiriiii mill Fii'i In". C". liiiiikw linnkni' Ii. X.
.1., 'J I <,». !{. •-•.S4.
' I'laintitr bought from It. a number of sliee]),
paying him iiart of the purchase money at
the time, and the balance within a few ilays.
I'pon the lirst iiaynieiit being made plaintiff
marked the sheep with reil paint as his pro-
perty, and they were then placed ajiart from
the rest of l!.'s sheep in a separate field on the
hitter's farm, where tliev were to remain until
re(|nii'ed by plaintitl'. rlaintitf was a butcher,
and it appeared to he the custom among butchers
, to leave with farmers stock purchased from
them until convenient to remove it. This had
also been the course of dealing between plaintiff
and I!, on jirevious occasions. The sheep thus
remained on H.'s premises until seized und r an
attachment against It., as an absconding de' tor :
' — HeM, that the mere marking of the sheep, or
the removal of them from one field of the seller to
another, did not constitute a suHicient delivery
or change of possession under (!. S. U. ('. c. 4,'), s.
4 :- -Held, also, that there was no evidence of a
sutticifcutly established custom or mode of dealing
among farmers of treating as their own, property
really belonging to others, to put thini jiarties
ujMin enquiry as to the actual ownership, (^hiiere,
whether such enquiry would be admissible in a
case arising under the statute in ipiestion Doi/lr
v. Liishir, l(i C. r. '^li.S.
At the tri.al of an action for advances made
liy a commission meroha'.c on goods consigned
to liiin for sale, defendant tendered evidence to
shew the meaning of cash advances so niade, and
the usual practice as to commission merchants
^WWt^:
'.'■■■ %:■
•■■ ■'■■ ■ Ij'-
^.„ ;'!'■■
983
DAMAGES,
r '1 (
;!■■' !
I,
reiiiil)i ruing tlienisolves for such ailvnnecs : —
Held, that such evi(h!ucu wjvs properly rejected.
Vowic V. Apjts, '11 V: V. r>8!>.
A liierdiiint agreed in writing to advance
nu)ney for the ]iur[iose of getting out tinil)er, to
lie forwanieil tn him at i). for .sale ; for which
advances he was to he paid certain connnissions.
The tind)er was dulj' forwarded to him in tiie
autumn ; liut, jnities lieing low, the plaintitf,
witii the assent of the other party, held the
timber over till the following spring, and claimed
interest on his advances from tiie 1st of Deeem-
1)er until the sale of tlie timlx.'r, the case not
being provided for liy the agreement. It ap-
peared that it had lieen customary in the trade
to charge interest in siidi eases, whore there w.is
not any writing ; hut there was no evidence of
such oi.stom being known to tlic jilaintll' : -Held,
that interest could not be charged. Mowat, V.
(A, diss. D, llcriit v. .Vh^v-Zc, 13 Chy. 048, 14
Chy. 4iM.
CUSTOMS.
Hcc Uevkstk.
DAMAfiK FEASANT.
.SVc DiSTKKSS.
DAMAGES.
I. I'lUNCIPLES.
1. General, 985.
2. Too ncwofc, !>88.
[i. Joitit WrinKjdoi rn, 989.
4. Nomhial, 989.
5. Erniiplitri/, 990.
6. MalliTM in MHi<i(itioii or lli'iliirJUm,
990.
7. In Aroiddiirr of Cirriiitii of Action —
See Arnox and Suit.
II. I>r ArnoN.s rou Pehsonal Tn'-titriks
1. In (,'<ni-rn/, 991.
2. Libelant SlandvrSec Defamatio:*.
3. Bi/ N')-'j/i:i<iia—Si-i' 'Sv.tn.uiv.svE.
III. In Actions KoK Is'.n-uir.s to I'koi'kutv.
1. Di'tnininij Prii/nrfi/ — Si'e, Uetinuk.
2. /)}■</ ri'is-Si-i- Ursi'UKss.
3. Mi'.tne Profl.i — Si'c K,;i;ctment.
4. Nrpferbi — See Replevin.
5. Aijdhiyf Itd'iliriii Coin/xtnien — Set'
II All. WAYS A.N I) HaII.WAV COM-
PANIES.
(). Trci/Kin.'f—Sci- 'Ihrspass.
7. Trover — See Tkoveh.
8. /?// CoUmim at Sea— See, .Ship.
IV. .'\ Actions on Contracts.
1. Principlex, 992.
2. Fur Xon-de livery of Goods or Chadels,
993.
V,
VI
VII
VIII.
X
XI
XII.
XIII.
XIV.
XV.
XVI.
XVII.
XVIII.
XIX.
XX.
XXI.
HI
3. Other Case.'!, 993.
4. Jloud.
(a) (!( nt ra/li/See Ronii,
(b) Unit to the L'lin'it.t \,, |j^|,
(c) Penalljl—See I'EN AI.TV |,v ( ,
TRACT.
(d) lleitUrin-Se, I!;, ii.ivin,
.'). On I'tifeiiiii Jilll.i Sii I'lii.i.s III' [,
ClIANliE ANO I'liOMlsSdia Xcij
(>. Ai/ilin-it Itiiiheiifi tJiiiii/iiiiii.f^L^l
KaII.WAVS ANIP UaII.Wu- III
panies. '
7. Ai/iiinxf S/iljis — s'm Smii's.
8. Sllle iif (l<,<ids-Sii Sai.I: UK lliii.jj
9. Stile of Lnnd.1 — Ser Sai.i: i,k l,j«j
10. Trtinnmiltivii .!/(■..■.«/(/,,. /,,/ yw,m-,
— Sec Tei.kiih \rii.
In Actions on Covknants.
!. (leiiernllil —See CoVKNAM.
2. Fur Title " See CoVKVAMs loi; I'ljiJ
3. In LeaxeM — ,SV< LaNIp|.oi;ii \MiTp
ANT.
In Actions koi; Dowkh ,V., Dime
By Hevehsioneks, 994.
Costs, when ItKcovr.HAiu.i; a>|ia.\u,;
1. Generalhi, 994.
2. In <irtiiiii-< on Cdrejiiiiil.i n.r Tith^
Covenant koh 'rni.K,
iJoi'iii.E OH Tkeiu.k I)\\ia(;i;-, '.\%.
Averment ok, in ri.i;Ai>iM:. iniil.
A.SSESSMENT OK DamAOES.
1. liijjnnj, 99(1.
2. lin MiL-ter.
(a.) In (Jliiinriri/- Si-i ]\\n\,ipf
EyciTV.
( b) Coin/mtatioti if A iiiunnt ilm »J
JiiiliitiunI — .SV ■• .I|-i)«MF.vi.|
MiscEI.I.ANEols Cases, il'.IS.
In Actions acainst Siikiuik -.^»|
SlIEKIKK.
Da.maoe occasionki) ii\- Nii\-iin'iif.iir|
ItlOlIWAY ~S:, \\ \\.
Damage occasioned iiv ('iiN>ri;niH\j
OK IIaII.WAV .S'm ItAll.WUMVDl
Hah. WAV Comiamk-.
I)A:MA(iE occAsioNKii i;v \V\ri:ii-.v|
Water ank Watei; Cmi!.*
Damaoe Feasani >m I>i>ii;i>,
ExcKssivi; l)\MAi:i:s \«. Xi:« Tmi.J
S.MAI. I.NESS OK |)\MAi;l> — Vm .Vtirl
i'lilAI..
LK^riitATEi) on I'ENAi, — .S" rrviin
iiv Contract.
Compensation on .ArrMciriuN m|
Specific I'ehkohmam ■: of >-J
Wj
Punis.'iiK't-'
mil til ji:
jliiintill"
■or iviiiovi
L/. V. .!/■
hiiiii.-i' '
)e(i|iin tci
or an Miji
ir.it li'.ist
I K, l.-.s.
hi this I'l
leir is imlv
lel'tsof 111-
iquiiLiti-'il 1
jiresturViM
•. /,'"■«, 7 (,l
^11
985
D.vMAGES.
98G
DVKNANTS,
('((\ T.NANT.
'oVKNANrsFdIlTlTlJ
I.AMii.iiiiii anhThI
DdWKH -Su l)n«n
s, iV.)4.
iVr.HAlU.K A>ll\MAii]
'ori'tiniiisfi,!' Tilli->-
K()l< TlTI.K.
II. K |)AMA(ir.-, ittl,
S- ri.KADINd. !l'.ti'i,
)AMAin'.S.
UNSI' SlIKHUF -.yfl
■:i) iiv NiiN-Kf:ruF."rj
k-K.ii iiv ('iiv-n;iwi"Sl
I. Principlks.
1. (iciitral.
\ 1II.TS0U who takes uiioii hiinsulf to .abate a
i.J\L,v -idiiiistanee, a mill iliiiiiiii;iy lie called
„„, to iwv iliima^'e tor any iii,|nry il<me to tliu
iliiiititl's 'iimini-ty l>eyoiiil wliat is necessary
l„rnii\oviiwtlie i'(ill)lic iiicoliveiiieiice. 7V»'.,-
m\ji Hill c> • .,, 1 »i I
[lal, V. Mrl>''iiiihl, lay. I'-M.
\ lissor, "li" liii'l tlie title to the iireniises at
111 time ot iictiiiii )ironj,'ht, Imt not at the time
bf\iiiil. is entitlcil to (lama.yes, although he can-
hot ri'i.'iver lii^ term. />'" '1- .'/'//' ''v v. /;/.//,•;- /•,
, T. i Vict.
iDaiiactiiiu 111! the case, a declaration would
jdiitii til .-iH'ciid demurrer in claiming (himages
', !,„ iujiiiy stated to have liecu committed,
at loiist cniitinued, after action. ^ l\'(if.-«)u v.
'/,', c'liii ,if Tiii'oiilo Ua-i-liijht iiiid Watrr Co., 4
1!. I5S.
hi this imiviiKv, (though not in Kngl.iiid) the
itir i? Hilly lialile, on descent ol' land.s for the
{l,t< ,,l' his ancestor. He is not liahlc tor un-
:a;ittil damages, as, for inst.-mcc, iiiion his
ia-t"r's covenant for good title. V(iiih>iiijl,,ii I
/,'■„>., 7 (J. ii. -248.
liitri'sliass for taking timber, the court refused
h<tuvlitiie verdict, on the ground that the
, were hevond the value of the logs taken.
Hinlrtii/., 11 •,». H. 444.
11 tivsiiass to land, where the action was
iiiit iiii tiic 7th of May : Held, that the
■ might recover to the extent of the ulti-
,tf injury resulting to the en.iii from the act
ihiuii of, as ascertained at the time of
■t. y/ovioyi v. /••-//'•/.;/•, I.", i). I-?. 3ti,">.
I'liKithe 14 & 1.") Vict. c. .51, where a rail-
i\ ,1'iiiiiany's line severs a farm, it is iirima
:k- th'.'ii' itiity to construct ■'• farm crossing,
, tlir fact of tiieir having commenced the
litn.itiiiu of sndi a crossing at a jiarticular
I- ;iml afterwards dcsisteil at the I'ciiuest of
iiwiitr, lines not prevent the o«ner from rc-
'ifiiii; ilamages as for a continuing breach.
■'I \\UmiiiI Trunk llaUivaij r,,., (i ('. l». 4i»l.
il, that the v.alue of goods sold under a
idpu'iit ri.'Ciiver(.'il ujion a mortgage madt; 'c.
B iilaiiititl's, against which they lielil a bou) of
jjcraiiity friini ilefcndants, did not iVimi '.e
».wiioiif ihmiages, Imt they were !'■'! 1 en' (•;.
jruuvir the amount of sue!' judgUiCDt. /,iiii-
tuliliil, V. C'i'iiitri/ III., S c'. i' "S8,
PWherc a jiolicy of insurance ■u p .'.t> 'iniboat
linst lire, iiidviileil that in the even' of Kkss
iiLimagi' sliiiuhl he estinnited ",<ee;.,'ding to
etnieiiiul actual cash value of t e ^aid [in.-
Pty;it tlif time the same shall Icipj' n "': -Held,
%\ in wtiniiiting liisa tl'.e ilcfuudants were not
jtitltil tn liave taken mto .'lecounl a de]iression
tlif viihie iif steamers geuer.ally, caused by
[ciuiistai.as whicli might be teniijorary ,'i)H'.
I 'I'll!/ V. ThcQuaker CUy liiiiiirano. Cd., IS
jB, 130.
registrar lieing apjilied to by the plaiiitiif
a otrtilicate of the regigtries on a lot, gave
n which he omitted to meiitiun a mortgage
fSilO, prior to that which the plaintiff pur-
«il, I'Mjposiiig it, from the certiliuate, to be
list iiicuu-^ance. The first mortKaaee ob-
liinwi"
i/v.
tained a decree for sale, anil the plaintiff ))ur-
eliased the land at less than what would satisfy
tliu two mortgages, but he soon afterwards .sold
;it a considerable advance, so that in the end ho
wonld receive all tiiat he had paid for his mort-
gage. In an action against tiie registrar for this
omission in bis ceitilieate, tiie juiy gave !#.")()0
damages: Held, that the damage were moilo-
r.'ite, the jilaintitl' having in fact sustained loss by
defendant's mistake to the full amount of tlio
first mortgage. Iliii-r'isnn v. /j/i;/i', •_'()(,». I'.. ;{'J4.
A writ against one McK. having bciMi placed
in the sheritl's h-nds, the (Kfcndant in thi.s
action fr.'iudulently rcnmvi'd and secreted money
and goods liable to be sci/ed lindei- the e.xecll-
tioii. In estimating the damages against tlio
defcnd.'int for such fraudulent removal, it was
held tiiat tile return of the slii'rill' as to the
amount m.ade on the writ should be presumed to
be correct, and if the defeiidant contv'nded tluit
the sherill shonhl have applied the proceeds of
the sale of other goods to satisfy the plaintill's
execution, or that the shcritl' should have seized
and sold otiicr goods, and so applied the jiro-
cceds, lie must prove sueh a ease. Tiinnr v.
l'ii/>i rs„„, l.SC. I'. 412.
In iletinue for a deed : -(,>uale, whether plaiii-
titl can recover damages for iiaving been pre-
vented by the want of it fron obtaining horses
to cultivate his farm. H'oin/ v. Jimn/i ii, '2',i (}.
I(. 4(it-..
'I'ldccr for pamphlets. 1 'lea, not guilty. On
the production of on of the pamiihlets sued for
at the tri.il, the judge in the County ( 'ourt di-
recteil that the jdaintill' was not iMititled to
maintain the attioii because the pamphlet was
a scolling and iiidec(Mit a*"tak:k on christi.'uiity,
and orilered;i nonsuit. On ajipcal : Held, that
the plaintill held property in the materials com-
posing the ])aniplilets, iiide))eiidently of what
Wii;i printed on them, and he would have a right
to be indcmnilied therefor : that tiie judge slnmld
have directed tl.e jury as to the nature of works
which the l.iw protects and what it prohibits:
that if the p;iniphlets were not illegal, they
slioulil give d;iin;iges for their value ;is a literary
]pi'oduction ; ;iiid if illegal, they should give
damages to the v:iliu: of the paper, itc, irrespec-
tive of the Words upon it. /Iniir/n r \. Sliiiniii,
14 C. I'. 410.
An jietioii will lie for injury to a right, though
i.'i api>reci:ible dam;igc has been sustained.
Miirhill V. liiirrii, -IW <,». 15. 41(1 ; Plin,il> v. M<--
<iiniiiiiii, ',i'2 (}. 15. S ; \i'iirriii v. J)i.sri/i/irs, '.V,i(i.
n. ,-.!>.
The defendant (I. and two otiiers, ha' ing exe-
cutions aganist \y. k K.,u tlu5 seizure of
certain gonds. The [ilaintill, to whom tlu^ goods
belonged, d.emanded them of the bailitl', who
refused to give them uii. O. afterw.-irds directed
the bjiilill not to sell or do anythiiig nioi'e on his
execution, but it did not apjiear that he told the
]ilaintill' of this, or ordered the goods to be re-
tunio! to him. Tiie il.i'etit then lirought trover
against tiii b:iilifl' aiut (i , and the bailitl' after
wards sidd he go )itsi;;oli«i 'he other executions,
p, ying over ii,i pi rtion >if the proceeds to (). : —
Held, iha*' <l was li; oi.' ?or the full value of
'lie j'o^.t's, 'or tl'... plaintitf's right of action
' aec ..I ou ill'.' lienn lid and refusivl, and was not
i dc'.eatta by '..liat ti 'k place afterwards. Mack-
\r'- i'T ? !J
-■ i:
HiliOltKW.W
«ii"i 1
ly
I'll
hlHy
■■Mii-f !
J£l
'■N
InlMI
i .. fi
Iw^ni^
'. :
■1^
''(,-.' 1
•t H • ., 32 Q. B. 98.
if
'i ]p,ff[l
' 1
i
987
DAMAGES.
'■!^
Helil, following Howland v. Jennings, 1 1 C. 1*.
27-, iiuil Montgomery v. Boucher, 14 C P. 4.">,
that the agreement Ixjtwecn the parties tixes the
rate of interest reeoveralile as (l.amagcs, how-
ever exori)itant that rate may he. Yutiiui v.
riiib, l.-)C. R 3(i0.
Where a trnstee is authorizeil to invest in
either (if two apeuitied modes, and hy mistake
invests ill neither, tlie measure of liis lial)ility is
the loss arising from his not having invested in
the lesi heneticial of the anthorized modes.
Piih,:<i,ii V. Iai'iIiii, ISChy. l.S.
Two years hefore the jia.ssing of the act relax-
ing the usury laws ('I'l Viet. e. 8r», ) a trnstee,
will) was anthorized to invest on niiirtLtajre or
government securities, made an investiiieiit in
I'liper (.'anada Bank stock, under the impression
that such an investment was within his autho-
rity. The stock ultimately turned out worthless ;
and the trustee suhmittcd to account for the
principal \\'\t\\ compound interest at six per
cent. : -Hehl, that tliis was the extent of his
lialiility, though eight per cent, might have lieen
ohtained on nun-tgages. Ih.
Defendant caused plaintitt's goods to he seized'
undir an execution against his father, helieving
them to lu'long to tlie latter. The goods in
(jucstion consisted of some artiehis of machinery,
met:d, iVc. , in the upper jiortion of a sliop where
plaiiititr cairicd on his l)usiiiess. The siieritf
did not take possession hefore the 'JOth, and an
intcriileadcr. order was made on 211th January,
an<l during put of this interval i)laintiM' was
allowed to continue his husiness. The juiy hav-
ing given the plaintitl' .'?I000 damages. Held,
excessive, as no damages were recoverable after
the date of the interpleader order, and a new
trial was ordered. Li</ir v. Xiiftlurii H. W. Cn.,
lilC. ]'. 408. See, also, Konnilii v. Puffiv-niii,
i-1 (,i. I'.. ■")(>.
Held, following Porter <•. Flintoft, (I V. V. .'V^.',
and IJuttan r. lieaniish, IOC. P. !I0, that an action
will not lie at the suit of the mortgagor of cha.''tels
against the mortgagee, for seizure of the chattels
Itefoie default in paj'inent, where there is no
proviso in the mortgage for possession until de-
fault ; and tint even if an action would lie, the
jury slumld he told that the plaintitl' conld rc-
eovei' only to tlie extent of his interest in the
gooijs anil for the damage dime to sucii interest,
instead of, as in this case, for their full value, as
in the ease of a wrong-doer. McAiilmi y, A/I'ii,
•20 V. P. 417.
In an action for injury to plaintilV'.s vessel,
caused hy collision with defendant's steamhoat :
— Held, that the j)laintitl' was entitled to recover
the costs of repairing his vessel, and for the
permanent injury done to her, and the wages of
his crew necessarily kept over during the repairs;
but not for the sum expended in the hire of
another vessel to take her place, or for the [irotits
which he would hive earned hy heremplovment.
Bnur,, V. Jioith/ !■! ((/., 35 Q. B. 328.
Senihle, that in an action of trover for a vessel,
the loss of proKt may ho recovered. //).
Where a iilaintiH' filed a hill for an injunction
and payment of ihunuges ; and it appeared that
the wrongful act complained of had, without Lis
knowledge, heen discontinued befin-e the Buit
was commeuced ;— Held, that the court had not
jurisdiction tn
lil'nrhillijtiill V.
make a decree for the . I in,,.
PahiK'i; 18 Chv. 4SS. "
2. Till) III I <i)ti ,
The plaintill's. living at Snuthamiituii, Lavs
purchased goods at Montre;il, dirctcil tliem^
lie forwarded to Kingston, to the .lu'u nf t»
schooner " llegina. '' They wciv s.i sint in,* i
of the mail steamers, but the captiiiii {i| tL j
"llegina" being unable to wait at Kiiys^
directed defendants, who were foiwai-iUrs then
to send them on by the same ^tcau;er tu Hani
ton, and thence by tlie railway to Saniin, wh'i
he Would take them uii on his wa\ tu SmtLl
ainpton. Defendants however slii'p|n'.l tlital
from Kingston by a projicller, wiiich m.i^ \'nn\d
with the goods on lioard, in the llivtr St. I'ljj, j
They had been insured to gn by the '• llinn,!-;
but havinglieeii shipped on a ■ I'eiviit Vc-nltiitl
jiolicy was cancelled. It was held in tliu i^iuitt,|
lieiich, liichaids, (_'. .1., doubting, tiuit un tlj
contract for not sending as directeil, iloftinlaiisl
were liable only for nominal ilaiiiai.'e.s, tlk- 1
bj' tire being too remote ; and, l!icli:u'il>. I.'..!
diss., that they were not li.-ilile in tiuv -r, (hi
appeal, — Held, reversing the judgiiieiit. tliattii
defendants were liable on the cuiitKut tui' tiJ
value of the goods. Wiillm-i- it ul. v, Sirlfi,'
31 <,». 15. .V_>3, 28 (). B. .■it;;!.
The pl.-iiutitl' and iiis ,. '■ ' i'cfi'iii]iiit-;.(|
injury alleged to have . .■ c.i ul to tliv r,:|
l)y their neglect to have a railin • nr guaril alnSil
an embankment leading down ii a Ipii.j'c, ,'
one of theiv leadiiii, highways in .i pn|iii|,ni
township It a;)perred tiiat the wife aiiil fcil
SO'-., about eight years old, were ci'ii>Siii;;ilie|
"oridge in a buggy, when the hor.se sliif.l at"*iiniJ
new ]danks on the bi'idgc, ami liackfl 1 1 thJ
end of it, where the hind wheel went n'.v. tlt[
bank, throwing her out and into tin- \vitti,|
about fourteen feet below. Tiie jiirv fmiii,!. .imI
the evidence set out in the case, tli:it tlu n*ll
was not in a suHicicntly safe state, aiul ;iiat tfctl
wife was guilty of no negligence in tlif inaiiai't-l
'Ueiit of the horse :-~Helil, Mnn-isun, .1.. iLAI
ing, ^hat it was tlie duty of ilefi'iiil.'uitti to !fiii'e|
or guaid the place in tjuestiou : that tho iiijcrrl
was caused liy the want of sucli iii'iitt'itMiisj
the ju-odmatc cause, not l)y tlic iim'su lnviiiiiiij
frlglitened or unmanageable ; ami that ilfltnliii
therefore were liab) •. '/'(///(.•,■ d ul. v. '/'/.• i
jKiriltinli iij till '/'iiiriiy/iii/nt' II' liithi/, Xi*).\i
altirmed on appeal l.")th Scptcnilur, ls7.").
The authorities as to remote ainl iii'Xiiia'(|
causes of damage reviewed. /'/.
Defendiint, on the I4tli of Maivli, I s7'.', aswill
to buy two acres of land in a villa;.v fiuiii ikel
jilaintitl' for s;i'2\ and to coMi[ilctc unnnitwitliiBj
eighteen months a brick factory nf .<ii«iliiill
dimensions, and at or before its ciniiiikti«ti)l
eommence and prosecute therein tlif iiiaiiu:*.
ture of plated ware on a scale oiiiiinidisint«|
with its size; and that in case hv slioiiHnotj
perforin his agreement in this ivsjuvt In \v4ll
at the end of the eightcc;i imintlis ivcoiivi'tlii^^
land to the plaintiff', receiving hack tlie imp:b j
money, .*.'52"), and eomi>eiisatiug tliu iilai'itiil fi
damages, if any. The ''.efcniu'iit iliil nutfi,]
the jinrchase money. .111(1 at tliv I'li'! nf si.««i.|
months elected not 'o ^'o on Mitli tlK'ai,'K';i»rt|
whereupon the £)iaiiitiH' sued, allegiiiv' w l"*"
'Ml
5$
;e for the (Imiiaa,
y. -ISS.
utli;un]itiiii, Lwj,
1, ilirerted thtmv
to till.' ,:;\vv 111 ts
iVure s.i si'iit iii,.v
thf L-aptMill lit t;.
\V|iit at Kiu3,;
fo t'orwavili'is tlifr'
i steaiiiLT tn Haiii..
ay tn Sar;ii;\. whtj 1
1 lii> \va\ tu SiiBttl
•vol- sliip|iu4 tl«|
tliu r.ivt-r St. rlaitl
;o l>y the '• Ke^.ina,'!
[I' I'fivut ve-it-l tkj
>\\M ill tliu i^iiktiij
ulitiiig, that <iii tlil
(liri-ctfil, ihM'uiiilaial
al ilaiiKiLros. ilic It^
ml, lli(;haril>. (.■.,).]
ialilc-' in tinv.^r, iJ
I' iuil,i;lllL'llt. tiiattsl
thi' iMiiitract tiir tkJ
• it II !. V. Sii'ifl fl nil
.' ca
uiliii
.(iWll
wav.-
M
989
DAMAGES.
990
1 >hration ttwt the plaintiff's adjoining land [ carry a Cdi)}- of a lost note ami present it for
11 have Vieeii much enhanced in value l)y payment, ami in ease of non-paymunt to notify
■ tl"' mle'tii defendant, and the ereetitm of the j the endorsers. Breach that defendant did not
if tii'v and elaiming a.s damages profits which j present or notify, in conseijueneo of which the
mh'! ' luiii have derived therefrom : — Held, that endorsers refused to pay the note. The evidence
'liiiia"es were not recoverable, being alto- \ sheweil no demand by tlie iilaiiitilV upon the eii-
.v tdo^roinote. Qiiiere, whether he could dorsers for the payment, nor refusal by tlieni to
■r interest, though he liad demanded the pay: — Held, that without sueii evidence, the
I'.iv lie had not onercd at the time to make I ])laintitl' could at most recover only nominal
JJidliit V. Tai/loi; 35 Q. B. 395. | damages. Mi-ijimrrh v. Funjn, '2\ ('. 1'. 47S.
In trespass, defendant justitied cutting the
ditch complained of under an award of fence
viewers, iVc. The jury found for defendant on
hianacti'in against two justices for one act this issue, anl on the general issue that there
lof iiiinii'somiicnt, charged in one count as a tres- : was no damage : -Held, that as a right was in-
'^ :,n,l in another as done malici(msly, the ' volved, the plaiiititl' was entitled to averdiot on
1(1 -SSOO against one defendant, and 8400 the general issue f(pr nominal daniaire ■'•
3. Joint Wronijil'ici-'
Ipiv
st the other Senible, tliat the (himages i v. />.<///>//'<, 33 <). B. 5i).
coiiW not he thus severe.l : but, Hehl, no ground .
foraiiewtiiid. as the fimhng might be treated
»ga vH'li't f'"' '^"'^'^ against one defendant, the
otllov K'iiig let i,'o free by the plaintitl'. (JuaTc,
trt the proi'ei- '""'l^' "^ entering the judgment. '
lll■flfnll!llt^^!V(|
>.l tothv WIS
nr gUiUil alnsjl
■; a l.iil.'r,.:
ill a iiii|iiil.i
lat the «'ifi' aii4
1, wore ci'dSSiH;; tktl
le horse sliie.l ats«|
t, and l)ack>,4 t.tkl
loci wont I'Vv. ttJ
d into tin \nttr,l
10 jury fuiiii^l ,',ijiij|
ease, that tli. d*1|
state, aiiil that titl
nco in the inaiia^e-j
rri>oii, .1., iliiukl
lefi'iulants hi lencel
111 ; that tlkMiiJOTl
snoli pnitwtiiiE lil
the iidi'so inYiiiiiinfl
uid that dfU^laiiBJ
,/ .(/. V. '/'/.'v.'
7,;/'///, 3:i(,i.R
teinher, 1S75.
■inote ami iir"xiBat(|
.\hiivli, 187iasr»i;
a villaj.1,' friiiii tke:
illilete iinniiitwitliill
faetnry "f i\iixM\
its coiiiiik'tiiiiitoj
heroin tlii' iiwii"'--
soaK' t'irihiiRii5iinU
ease 111' >li"iiMii''
is ro.s]ii\'t IhmH
^iioiitlis ivdiiv'.;*
_.„ .lack the inir't»
Itiuy the jilai'itul 1 1
lenti.'iit ilid ili't pir
It tliv 011.1 'if sixtwJ
1 vithtllOili.'K'W'''
led, allegiiii' i'l ' '
The plaintitl's and <lefendant entered into a
joint venture, to form a company to work a mine
in land forming jiart of a tow iiship road allow-
ance, the ilefendant to form the company, and
the plaintitl's to vest in the eoiniiaiiy the minoi'al
right in the laml. The ]ilaintitrs accordingly
procnrrcd a by-law to be passed by the niiuiici-
pality for the sale of the mineral rights, under
.see. 44"2 of the Municipal Act, which authorizes
such sale, but with the jiroviso that the puldic
travel sliindd not be interfered witli. A convey-
ance cont:iiniiig the above proviso was. with the
defendant's consent, made to one li. 15..!., vlio
Dot d. Lie/: v. Aiixiiniii, , executed a formal deolaratioii of trust of one-
third interest to the pl.iintirt's. but not id' the
lialance : but he stated that he hold tlie whole
laud in trust for ])laintitl's, and was > illiiig to
convey as they directed, and the plaiiitili's in-
formed defemlaiit that they were ready to con-
vey to him. i»efendaiit obtained an act incor-
porating a company to work the mine and issue
, . stock, which eonipaiiv proveil a failure, but
I Where an attorney was retained to apply to | tli rough no default of defeinlant, who was the
llivveaslioi-ilf from an attachment, and the jury heaviest loser of all the parties inteiestcd. The
uvlbiiii ill fault in conducting the applicatiim: i jdaintifl's having sued defendant for not forming
.HvH, that he was liable to nominal damages, I the joint stock company, or carrying on niining
Itliiiiwh the spooial damage laid was not proved. ;, aerations, and having iditaiiied a verdict for
'fWv. Bniill'iK, ji Q. B. 84. See Donn v. : .S400 : - Held, that the vor.lict must be reduced
'iim/i, 11 <-'. 1'. 4"23. to nomini! damages, ■/ulni.s it al. v
a jury, I'pon being charged that thej' ' CM'. '2\'J.
Bffe le ' ^' ^lui for the plaintitl' unless they were i
;Ei';,„,'i : diere had l)een neglect on the part ; -^ E.riiniilin
>^|(ti\»sh( •'■ram which the plaintitl' had surt'ereil
''^^Wii' ilainiige, ieiiii''.ed a nominal verdict in
'0\\ I the nlai'it.tt, the court refused to set it , ^ ^i ^i i ■ -..-i ^i ■ .- i .■
'.r tl e facts stated in the ease, on the I ['' *''" the plaint .11 during the examina ion belore
to sustain such a ver.lict for i *"-■>»; -"-''l "" 'n.sdirect.on to tell the jury
that they were at, liberty to give exeiniilary or
C/i'<-"''' ^' 1''"'/" ''• -^ ^^- ^- ^'^ ' '^'^•'""•''l i'l
»pi.e,i2(iQ. B.4-22.
4. XoiiiiiKil.
Whtn the term in a declaration in ejectment
Iha^cxiiiitd, the plaiutitt' is entitled to recover
Inomiiul damages and his costs, altlu)ngli he can-
not rcC"ver possession.
. T. I) Viet.
I 111 imiceeding in prohibition, the plaintitF can
Ktlvweover nominal damages. If ho wish to
tcintT auhstaiitial damages, he must proceed
actiun (Ml the case after the entry of judg-
■eutiiuodstot in-(diihitio. Mitthlienjcr v. .}f(r-
<(/,/,(/., 'J Q. B.41.S.
- e i ■.;„„,,,. .>;,.. 1 *■;.,„ +1,^ ^ ^'"idictivc damages. C/ismKI \. Jldi-li'// i / nl.,
II. ikar woof (It an injury received tnmi the I .,. , ■' , , , ,, ,,,.,
1 . 1 n 1 1 .. ,;-o., o„ 1 fi..,*. „ ..,u -•' *i'- B. H) ; athrmed on aiipeal, 'Jb <). B. 4l''J.
ik i sliiiuhl have hecii given, ami that none i • • 1 1 > ^
• 111. th.it, t'' '11
aiTt'stiiii: a ilefendant upon mesne process,
Bm.
'nh'ireil, (I'Voiiiidi'v. Ihuiiiltnii, 4Q. B. '243.
till an action for not carrying goods safely,
Jliereli; they wore lust, issues in fact were left
>» jury, reserving the ijuestion of nominal or
klistaiitial damages for the opinion of the court :
j-Hckl, that the only iiuestion for the courtwas,
ihcthcr the idaintiff should bo limited to iiiimi-
W 'Irisugii, ,ir recover the actual value of his
'» • iiiil that the question of mitigating the
5;y-.iiagts iiir. r'.ie facts proved, could not be con-
" "lereil. .^,.',«i,i v. The iiiifnlo ami Lake Huron
ii'ira!/''o.,10C'. P. '279.'
I Plair tiff sued defendant, an agent of an express
ipuiy, on an alleged undertaking to take ajid
iiiiiiiin\i/.
Tn an action against two justices
defendants ha' ing used iiisultini;
BirL; -24
one of the
exiiressions
0. ^flllfr|•.■i ill Miliitufion or Iliihn-tinn.
Semble, if in an action upon the case for not
manufacturing 400 bushels of wheat into flour,
the plaintitl' recover damages eipial to the value
of the wheat delivered to defendant, lie cannot
bring an action for goods sold, for part of the
wheat which had, in point of fact, beei! re-
delivered to the plaintitl'; and tiiat such ri;de-
livery shouM have been given in evidence in
mitigation of damages. AwlriiK v. linrnrll,
Tay. 382.
Trespass against a magistrate for seizing and
selling plaintiff's goods. At the trial evidence
^|1
, i
li
y
,: I-
:1
If
001
DAMAGES.
DiJ
I
ii
was given to shew that the plaintiff had been
guilty of the offence charged, Imt such evidence
was offered and received only in mitigation of
damages; the provisions of the l(i Viet. c. 180,
8. \'2, whicli in such a case limits the damage to
2d., anil deprives the plaintill' of costs, were
overlooked ; and the])laintiff olitaincd a verdict
for full dani:igcs : ^ Held, that there must lie a
new trial without co.sts. lir<is.i v. Jliiln r, 15 Q.
B. &25.
In assumpsit for breach of promise of marriage,
the defeuihuit is entitled, in mitigation of dam-
ages, to cross-examine the [ilaintiff's own witness
respecting the general liad character of the plain-
tiff. Mr(l,-r,i„r\.MrArthiii\ 5 ('. 1'. 4(»3.
Upon an assessment of damages for goods
sold, defemlant tried to prove a contract to de-
liver the goiids in Toronto free of charge, and
that they were refused by defendant in eonse-
(|uence of their arriving with charges on them,
and the jury found nominal damages oidy ; —
Helil, that sucli matter shouM have been pleaded
in bar, and was not available fur defendant on
an assessment of damages. Cum^lDi'h v. ThiMli',
7 C. I'. T,.
Held, til .here evidence offered at a trial
and rejecteir ectsonlytl'u amount of damages,
and the amo' > d a, small; the court, in
the exercise o. ■ ■ retion vested in it by the
Error anil .-Vppe.i; :• fC IS. U. ('. c. 1.', s. 24,)
will refuse leave t.j .i^ i^^al. Jfi/ir.ix. CKrr'a, \)
L. J. 152. -(^ B.
In an action for not carrying goods safely,
whereby they were lost, issues in fact were left
to tlie jury reserving the (|Uestion of nominal or
substantial damages for the oj)inion of the court:
— Held, that the only (piestion for tlic court was,
whether the plaintill' sliould lie limited to nomi-
nal damages, or recover the actual value of his
goods ; and that the (|Uestion of mitigating the
damages upon tlie facts proved could not be
considered. I'lih-^oii v. Tin' Ilii[l'i(/i) mid Lnki-
Hiirvi, n. II'. Co., IOC. P. 279. '
11. I\ AirlONS FOl! I'F.nsONAL IxjriUEs.
1. //( <!( Ill I'lil,
Whether, umlcr 27 & 28 Vict. c. IS, s, 10,
which makes a tavern keeper liable in case
any person wliile in a state ot intoxication from
excessive drinking in his tavern has come to his
death " by sliooting or drowning, or perishing
from cold or other accident caused by such intoxi-
cation," proof of sonic pecuniary damage must
be given, or whethei', without it, the ihunages
are fixed by the act at not less than !}\Wi, was a
(piestion raised but not decided. Bohicr v. C'lui/,
27 g. 15. 4.SS.
After a count by husliand and wife for injury
d(Uie to the wife during coverture, a second
count, l)y the huslMud alone— after setting out
the fact that the horse and cutter, in which lioth
plaintiff's at the time were, having Iteen precipi-
tated over a bridge with the wife, and that she
was thereby greatly injured, and lai<l up for a
long time in consequence of tiie injuries sus-
tained by her, and endured great siitfering — pro-
ceeded to allege that the husband was put to
great trouble and e.xpense by reason of the loss
of his wife's society and lier services, and was
compelled to pay and did pay large sums ,|
money on account of her illness to nurses ar^
medical men, &c. , and also lost the Nuid ^Z
and cutter, and was otherwise ]put to ;,'n'at ,,
pense, &c. The jury hav.'ng found Un- tlie iilm^
tiffs, and assessed damages generally on li„.;
counts: — Hehl, that after vcrdirt tjiu .if,,,;
ci^nnt must be treated as a cnuiit milv fdr tt
damage of the husband, for which lif alimu cniili
sue ; ami that, treating it as surli. it was «[
joined with the lirst count, under tlicC. L f
Act, thmigh damages were .sougiit iiv liim f,»
the injury to the horse and cutter, .is lvi-ll,isi.i
that resulting to the husliand frcmi the iiiiurv ti-
the wife, llelil, also, that defendants wi-ru'nij
entitled to arrest the judgnieiit oil till' j.'i<,uiiiltliat
the damages hail not been sepaiatulv :is.<t.>u
upon each count. C'lniijilii/I i/ n.,-. \ '77,, i-. ,,
ll'cs/f /•« /.'. II'. Co., 20 0. r. 345, 5(;;i.
The inability properly to ealculatc tliu ,laiiia./t^
to the plaintiff from a jicrsonal iiijiiry. nwin ■% i
a sutKcicut time not having i-lapsi'd |'V,i,ii tliJn.. j
ceipt of tile injury, was held a siiliiiitiit ;.'r.piinil
for postponing the trial on terms. .Sjii,i:-n; n, j
Cmit Wi'-i/irii /.'. II'. Co., tj p. j;. I7y_,^' j'
Chamb.— Dalton, C. C. ,(• P.
IV. In Ar-rroNs on Contkaits,
1. Priiii'ijilix,
Upon a breach of covenant, a party is iJaUel
I only for such damages as are the natural i.iiisc-|
I qucnees of his act or oniissimi. WIutc, tlii-ri'-
I fore, the vendee of bind allowed it tn liu m,\ Ux
' taxes which had accrued duriii;,' his vuiil.ir's
time, and neglected to redeeiii it witliiu tlij viar
afterwards : — Held, that lie could imt asdf ni:iit
; recover damages to the value of tlio lau'l so
'allowed to be sold. Mcl'iilliim v. harl^ f,ii
I B. 150. '
I Assumpsit on an agreement, wlieivliy iIimi.
i daiits agreed to sui)ply plaintilf with Miiativt-r
funds ''e should rciiiiire for earrying "U his Kiisi-
I ness, (a miller, ifcc.,) not exceeding, Ac, tn lii'«.
I cured by the promissory imtes oi plaiutitf, aini
warehouse receipts for the lloiir, which was tuk
j sold by defendants as agents and t'ciiuiiiissiun
merchants in any market iilaintitf niiu'ht think
proper, and that plaintill' shcudd itive aiiinrt.'a^e
to defendants on his mill as cnllatcral sutiiiitv.
Breach, that although defendants aiivaiiaila
I small sum, yet they would not make any fiutlicr
I ailvances, by means whereof tlie plaintiti hasliwii
' unable to do such an extensive Ijusiui'ss, aiul
; gain such profits as he might have douu. ."^eoiiiitl
count, alleging a breach of the con traut, in selling
tlour against plaintiff's will at Hnstnn, wliiTeliy
said riour brought a much less price, and pliiii-
tiff was put to great exiicnse mi tlic same. I'e-
fendants traversed the several avei'meiits in tlie 1
i declaration, and pleaded a sulistitiiti'il s]ii.
; agreement. After verdict I'nr [ilaiiititf nii tte
Hrst count t'.SOSO, and on the sccuiul fur i'SH
12s. (id. :— Held, that there sliuuld lie a m
trial : that as to the first count, the (laina>;es were
not warranted by the evidence, there htini; iw \
reijuest of any specific sum prnvud, and tliat
, general evidence of plaintiff asking fur ami fail-
I ing to obtain advances was not sutlicieiit. (^iniw,
I as to the measure of damages fur hixaoh ol tie
I contract set out in the tirst count, %'tv.
I Oowkrham, 6 C. P. 21.
993
DAMAGES.
994
o On Non-dpliwry of GomIh or Ghatteh.
attaching the seal of the eoinpany. Y\i(n\ an
action brought by plaintitl' for work ami labour
. „4. J.,. „,„i,,, .,,,,1 ,i„i;,,„„ aciiou Drouuuii oy iiiaiuiiii lor uoik ami laoour
i„,,.iiiiii9 1 on a contract to make anil deliver . i i -^ ' ,. i ^i i .■ i i. i.
Assiuupsit on 'v «,.„o,.i, +i,o;.. ;.. performed and exoc\itu(l, the dctemlints put on
„oir iif burr null-stones, hreacli, tlieir iii- ; £, , , , . ' , i. ^ 'ii 1 1
fo pair 01 ";",'"' ,.,,. ,p,,_ .„,,^ ;„ „,i,i; tlie record a plea dcnviUL' t he coiitrai.'t :~Hcl<l,
ii: f..nf.v 'iiul bail (itialitv. 1 lie jury, m adui- .,,,.,',,•■?■ i • i ^.i
ithcifucy ."lo '"' 1 J „n,„..^.l „^^f.,;« tliat bv tlieir i)leailini's iiavmi' denied the con-
*,> flic cost of new stones, allowed certain,, . •' ', , ,. ■" ■ •, ° • i - . . ,
tion to til'- '-"5"' ,,,1,1 ;,. „(.f ,„„ f,-,,,, tract, they coulil not iin.oke its aid to iircvent tlu
.epwato sums for inoney expended mat en ting ^.^,^ ; > ^^
toVfair the broken stones r 1 e^^^^^^^^^^^ Th, Unat W,. Urn Hail,,;,, it., «K'. R 134.
o,„l or in 11 IV caused by their breaking to the
iml tor ili|--.- -, , . - ...
■ ],i,ieiv'of the mill ; damages being specially
himeil in the declaration on these accounts :—
H .M thiit the verdict was sustainable as to the
1^4 tVo items, but not as to tlie lirst. Cuthm v.
(';«./, 11 «.'• B. 153.
In an action l>y plaintifls against defendants
forilaina"es nccasioned by the non-delivery of
■(■I'tain" article of machinery contracted to
Viy'ivuicil 1)V them for plaintitTs, it appeared
tint no notice had been given at tlie time of the
•oiitract to tlie defendants of the necessity for
a tirompt (leliv(;ry of the machinery, nor of the
nst it was to he put to : — Held, on the authority
Thames Iron Works Co., L. it
VII. P>v lvi;vi:i!si()NKi:s.
Where in an action on the case for -i nuisance,
by landlords as reversioners, tliey recovered
€'2.')0 damages, tlie court granted ji rule nisi to
reduce the verdict to Is. on the nuisance being
abated witliin a certain time, unless tlie land-
lords ol>tained a release from their tenants to tlie
defeiiilant of any cause of action accruing to
them from the nuisance. Tlie rule was after-
wanls discharged on a release luring produced,
although the release w.is not exactly in accor-
dance with the terms of the rule. I)ri ir il iil.
V. Bohi/, G<). .S. lMI.
of Cdi'V ''• 11"'
S(t. B. ISI, attirming Hadley v. Baxendale, 9
Ex' 3-11. that the plaintitls could only recover Tn an action on the case by reversioners for a
the valiii! of the missing article, and were not serious injury to their reversionary interest by
cntitleil to the loss of protits arising from this the erection c^f a nuisance in a public highway,
elivurv, or the wages of certain workmen the jury are not necessarily restricted to a ver-
dict for nominal damages on tlie first trial, Imt
may give damages commcn-iiirate to the injury
which the plaintitls may sustain by the possilde
eoiitiiiuance of the nuisance. /)ri ir il nl. v.
Bahii, 1 Q. B. 4.38.
Held, that an action is maintainalde by the
reversioner of a mill demised to a tenant for
diversion or obstruction I )V a stranger of water
from the mill liead, tiie obstruction lieingof such
a character as to render the sale of the reversion
less valuable : —Qtiiere, whetiier damages must
be recovered once for all. Itmiirx y. D'lrk-^nn, 10
C. P. 481.
In an action on a lease (having many years to
run) for rent and iiou-rciiair of the premises :
Held, that the reversioner, by reason of the
length of the lease, was not restricteil to nimiinal
damages, but the measure of damages was the
aniimnt to which the reversion is injured liy the
premises being out of repair. Aik'ni.-'nit v. /iianf,
1 1 C. P. 24,-).
The plaintitls, lesS(U'S, proved tliat the damage
to the reversion liy re isoii of the defendant's
omission to repair was .SHo I , the estimate covering
all injury up to the time of trial : tlie jury gave
a verdict for .S+OO. There was no misdirection
complained of, iku- was the judge asked to <lirect
the jury to liiid in express terms the actual
damage sustained by tlie reversion ; nor were
any affidavits tiled to shew that the ilamages
were excessive. The court refused to grant a
new trial, on the ground of excessive damages.
Marriot r. Cotton, 2 (J. & K. "mS, referred to,
i.,iil,l„vc>l upon the budding in which the inachi-
iiiTv \vas to be used. Tin' Jiiilhnii Wunlliii
%mm-lnmi<i C\i. v. On at Wc.-^tini Jl. II'. Cn.,
isi'.i'.siii.
I'laintitf had sohl certain goods to M., which
were at the time lying at the defendants' railway
st.itiim, and ilcfeiidants were fully aware of the
sale, lii'it notwithstanding they contracted with
iilaiiititi' to carry and deliver them for him as
re(|iiire(l, and gave him a shipping bill acccu-d-
ingly. In an action by plaintiff against defeiulants
foriioinlflivcry :— ileld, that the plaintill' was
entitklto recover the whole value of the pro-
lH.rty converted, anil not merely the ditterence
ktween tlie price at the time when defendants
rtiiiseil to deliver it, and when they tendered it
kk again. Brill v. The Grand Trunk H. W.
|'„.,20C. P. 440.
.3. Ollnr ('((.scv.
In an action on a covenant by lessee to insure
;.tW iivuniisos in the name of the le.ssor, the iii-
t buwiicc money to be expcndetl in the erection
tdf new Imilcliiigs :— Held, thiit the measure of
iilamages was the value of the premises lost to
Ithe iliintitl' hy ilefeiidant's neglect to insure,
jguch value not exceeding the sum in which de-
ifenilant was to have insured by his covenant;
[aiiilthat it could make no diU'erence that, on
Ifaihire of the lessee to insure, the lessor was
[allowed l)y the lease to do so, and charge tlie
Ipremiuma as rent. Doinilii-i't v. Miirpin/, Ki Q.
IB. 113.
distinguished, and doubted. Pirn/ >■/ ii.r v. Tlie
Defeiiilant agreed to saw for plaintiff a certain liitiik uf Ujijnr CunmUi, ItJ ( '. P. 404.
iiuaiititynfloi's, which the nlaintilf was to deliver i, • c i- r i i.i i- x • • • i.
,fi,;.,ii „? c 14. I f f i Review of fjUglish authorities as to injuries to
at Ins mill, at si)ecitieil rates, lii an action tor : ., . ,? x- ..- i ■ • xi i.-
n„*,.»,. ■. 1 IV 1/1 i i.\ the reversion, tlie time ot hniigiiii.' tie .action
not 8,iwinL' loira so delivered : — Qua-re, as to the .x c i\\ i \ n
mM.,<^ fi„ t 1 1 ». I therefor, and the measure ot damaKcs. J It.
measure ot ilaiuages to be recovered, liitrnamin ' °
|v. Aml^mii, 16 Q. B. 331.
The plaintiff and defendants entered into an
IjgKenieiit, the former to jierform certain work j
[for the latter upon certain conditions. The
plaintiff execiiteil the contract, and the defeii- In an action by the sheriff on an indemnity
iints'engineersignedit on their behalf, without j bond, the sheriff is entitled to recover from
63
VIII. Costs, whev RErovER.\nLE .\s T)aai.vc;es.
1. (ifjii'ralh/.
!li
ill
! (its
I !|
995
DAMAGES.
^
n
IX. Double oh Treiilk D.\M\,iKs
An action cannot he brought a;;aiiist a re i
trar for tru))le (hvniagea under the Ultlisi'ttinf' i
tn;
III V
the act 3.") (ico. III. c. 5, until he lias liten ,,,.,
victcd untlcr that section of .sonic <ill'eiue
wliicli he shall forfeit his office. J/nmili,
Li/i)iis, 5 ( ». S. r)03.
A refereneo to arbitration discntitU'i „
tifl" from recovering treble damages ami ,',L
cases wlici'c he would otlier\vi.se be ciititli..
them under the ■_' \Vill. & M. c. o, s. 4, tliu v^i
"recover," used in the statute means' "iec,„,.,
by the verdict of a jury." * '/<irl.- v. //•»■;,, ,/„;
the obligors in t'(.i inden-iiiiy bond the costs for
putting ott the trial of the cause against himself
on account of the absence of a material witness.
Corhitt V. WlUoii vt al., 8 Q. B. '2i.
The iilaintiff leased a house from defendant,
ami a dis|.iitc arose as tosome repairs, forwhich
defciidanl refused to jMiy. The plaintitl', being
sued for the work done, defended on the gnmnd
that dcfeiulant only was liable to the contrac-
tor ; but a Verdict was rendered against him,
which he paid, with costs. The plamtiti' there-
upon sued defendant :- -Held, that he could re-
cover the amount of such verdict only, not the
costs. Toijlor V. Strochtm, l(i Q. Ji. 71).
The costs of an a])iilication under sec. 8'2 of |
the Surrogate ( 'ourts' Act, ('. S. V . C. c. Ki, for \
an assignment of a jirob.ite bond, in order to an i
action thereon at common law, cannot be taxed
as costs in the action, but sh<iuld be recovered
as damages couseciuent on default. Clits.inn v.
yVvV, () L. J. 141. ~t'. J- Chanib.— Draper.
Defendants solil to the plaintilV and received
the j)urchase money for some wheat, which tliey
represented to be their own, but which belonged
t(J one B., who olitained it from the railway com-
pany in whose cars it was. Tlie plaintiff sued
the com])any for delivering it to B.. and the
action was referred and decided agaiu.st him,
defendants being present at the arbitration, but
it was not .''hewn that they were otherwise
concernc'i ; l\e suit. The plaintitl' then sued
the deteiid,.ius for the cleceit, claiming as special | amomit? lit lali rxmi y. Xiclm/s
I [lis
by the verdict of a jury.'' ' '/cri- v
S'L. .1. -21. —V. L. Chamb.- Burns. '
Iicmarks a.s to the hardsliip of thf .ufatiite
allowing double damages for distraiiiiiiir^hl.iii,,,
rent due, where the landlord lias ;ut
an erroneous construction of a dinilitfnl
Jiroini V. Bhtrkvdl, .S.'i (^ H. •2^^\).
'"' 't ill.
ii (111
I'avf,
X. AvKiniKXT OF, IX Pl.K.VIllMi,
Where a party, u])on an .illcged brcadidi na
agreement, seeks to recover comiiensatidii ii„tiii
the nature of general damages, to be left tn the
iliscretion of the jury, but in the slia| f ^f.
ticular damages specially contracted fdi- In tlie i
agreement itself, should he not aver iii Ijjj
declaration notice to defendant liefme uctimi
brought of such iiarticular damages ami the
'. IS. ;!:k.
An allegation of damages on a .uruuiul „ii
which the plaintifl' is not entitled tn ividvir
does not form ground for demurrer to a (krk'
ration. Dniluld w (•'ridl H'l sti ri, /'<iilmi,i(\,
4 L. J. 47.-'('. L. Chamb. —Draper.
In a special action on the case for olistriictiii.
an empiiry into the linancial affairs uf a tnwn^
ship : -Held, that upon the declaration, whidiis
;ind, Hehl, further, that costs incurrc^l by such : fully set out in the report, tile damage wa.s .siil!i
third ])erson in an action for the recovery of '^'.'-'"tly stated, and svas a legal damage, l,,iii,.
ilamagea against the supposed principal, may be [ '';i'*-''-'*|>' <«''V'"''";.'"'^'^ .''>' *''^' ''^'^ '""il'li'iiKil "i.
recovered as damages in an action against such 1 '"' Mi'i;['-n'<''''!l "J '•'[<■ /""•"sA//- .;/' 7:'./.-/ .V;,,.
iigas
damages the ci sts of this unsuccessful action ;
Hc'.il, t!iat sui !i ciists could imt be recovered.
M<-rr!tl v 'Jin .V „ t „/., -20 Q. B. 540.
Held, that a i" I'soii who induces another to
contract with him as the agent of a third party
1)y an un([ualitied assertion that he is such agent
IS answeral)le to tlu' j)ers<in \^lio so contracts,
for any damages which he may sustain, by rea-
S(m of the a.ssertion of authority being untrue ;
uuiiualilied agent. L'cL
./(-;(/ V. Wliitehntd, 10 0.
77/.
•titiiri V. Jiorti iiiiiii it III., U) (), \], "uO.
In an action for breach of covenant liyilelav-
ing the completion of a railway crossing', whii'h
Action by the assignee of a replevin bond:
for costs incurred in setting aside the writ, and | atlorded the best road to the plaiiitiif's siw
for danuiges for detention of the vessel replevied. : mill : — Hehl, that evidence of special ilaiiiat'e
Plea, non damnilicatus. At the trial it appeared | was not admissible, none being alleguil in tlie
that the plaintitl' had caused the vessel, for [ declaration, and the plaintitl' not liaviiij.' iKitilieil
which the writ of replevin had issued, to be [ the defendants at the time of tlie fact (if liissnf-
seized on certain ti. fas. placed in the sheriff's j fering the hiss of profit, which constitutiil the
lumds prior to her being replevied ;— Held, that
the plaintiff's property being seized under the
writ of replevin, he had to take steps to defend
the same, and was entitled to his costs of
defence. liiirii v. Bliilur, 14 C P. 41").
Defendant took an assigiunent of a lease from
the ))laintiff, a lessee, covenanting to perform all
the covenants in it on plaintiff's part, and to in-
denuiify him against them. The lessor sueil the
plaintiff' for breach of the covenants to repaii",
&c., and recovered, defendant having notice of
the action, and, according to some of the wit-
nesses, having 8ancti(Hje(l the defence : — Hehl
that under defendant's covenant to indemnify
him, the ijlaintift' was entitled to recover the
damages and costs in that suit, but not interest.
S2>ence v. Hector, 24 Q. B. 277.
alleged damages. Slinvir v. '/'/)/• (Jnut WisUn
liiiUirnij Co., () C. P. :«L
In an action for delay in cairyiiig giKuls:-
Held, that under the averment in the (lu(.laiatioii
of the loss of market caused thereby, the I'vidciii'e
of loss caused by the corn siiniutiiig, and thus
deteriorating in (juality, was improperly itoeival
Kyli' V. T/ii linij'ulu ami Lab' Huron li. 11'. Co,,
10 ('. P.
76.
XI.
As.SESSMKNT OF DaM.VOES
1. Bij Jimj.
The plaintiff must assess his damages after in-
terlocutory judgment, in debt on auondtcthe
limits. CalkKjher v. Strohrkhje d al., Dm. 158.
99
DAMAGES.
098
Where an iiiterldcutory jiiilginont wiih set asiilu I
■ I j„ili,e's iink'i-, l)ut tiiu iilivintitr iiriicoL'iled
1 i'tsi'sscit iliiniiij^i.'.s — the L'liiirtMi't the prooouil- '
l^l^s'asi.le. St„a>..y.A\,/>«.l.l.,Ai).S.^.
U'liero there wivs un issue of faet jukI an issue |
inlaw, I'll "''''''"-'""'*'"J''''"* ''•^'"■'f,'''-* '"'•: *" '"^'
,..«i.il, a niitifi' iif trial was lirhl siitlie'ient to
fnXlf tiif lilaiiitiH" to try the issue and assess
Where, in a country eause, a short time Ixifore
tlif assi/ew an interlocutory juili,'nient was set
, ;i. l,v a jiiilnc's order on jiaynient of costs.
'■ui'l\h:U till' ileicnilant should jilcad issuably and
tike twenty iour iioiirs' notice of trial, and cle-
foiiilaiit tendered the costs and jjleas the evening
lioliii-e tiie lirst day of the assizes, at the same
tinie servin.n a written demand of replication,
liillVi'iiii; to take one hour's notice of trial, j
liotwithstaiidiui,' which the idaintilV, having pre-
viiiiblv i.'iven notice of assessment, went on aiul '
assesseirilaniages, the court held the assessment [
p'uular, the dcfemlant tiling no aliidavit of nier-
it«, n'l'r^howing that his pleas were issualile, and
the ilelav in iiis in-occeding after the order was
trwiteiheing too great. ./(■•«»/) v. Fnr.n; 1 Q.
li. 390. r. C— Jones.
In truspass (|U. el. fr., defendaut's attorney, i
soekiim tlie advice of counsel ujion some dilti-
ciilt 11 "iiits of pica ling that were likely t<> arise
iiitliL'ilel'enee, nuilertook to allow the plaintili"s
attorney to enter his record at any time during
tln> assizes. Defendaut's attorney i>loaded a
sMill'lea. to which the plaintilV new assigned,
,111(1 ikienihuit then pleaded specially to the new
,is4'iimeiit, and the plaintill' demurred specially. '
I' Wtii'laiit t'aereupon gave the plaintill' notice
tkit if lie proceeded to assess contingent dam- '
jiio. he slhiuld move to set aside the ])roeeeilings
fiirirwularity : the plaintiti' proceeded to assess
liisilainai'es. and the court set the assessment
jsi4c without CDSti. Ifiiilii/i-iii-iiiii V. Donnlilxini, i '
\\. IS. •-'74.
.\ [ilaintitV cannot, under rule "23 of li. T. 12'
Vict, assfss oontiugent ilamages where there is ;
imtliiii;; nil tlu! record but a demurrer to the
whulc'ileelaration. I^Uhitl v. ir;/.io/( i-t al, 7
(I K. ;);)i.
Siiuhle that in m ikiiig u)) a record for asscss-
jiiiiit after juilguient on demurrer, before the
iiwiil is iiiide up a judgment paper should be
tilfil ii! the iitlice ; but the omission of it must
li'takfii ailvantagc of before ilamages assessed.
i.'Mr,t(il. V. /'.'«, 7(^>. B. 40().
The faut that a nisi prius record contains a
I'hiik fur thu ilatc of the judgment on the de-
immx-r, is im ground for setting aside the assess-
iin'ut "f damages. /Ii.
When the writ of trial is only to try the issue,
ami cnntaiiis im si)eeial venire to assess damages,
tthe jnry liave nn authority to assess damages on
j brtiohes auggested. Hunter v. Fmntii, 7 Q. B.
; 552.
A iilaiiitiff i.s not at liberty to go on and assess
i liis ilamages, pending a summons to set ivsido
liis interlueiitory judgment, and after it is re-
1 tunialde. Puce v. Mfi/ii-.i, 8 (J. B. 70.
There can be no assessment of damages where
j a verdict is touml for defendant on an issue
[ gouig to the whole cause of action. Pninne v.
Can-o/UO Q. B. 519.
In debt by executor on an annuity bond, made
by defendant to the testator, and payable during
the lifetinu) of the testator : -Meld, that the
issues tcndereil by the rcidications were suHi-
eieut, and that the .allegations in the pleadings,
set mit in the case wcn^ siitlicicnt to warrant the
assessment of daniaucs. SuiUli v. M"!r/ii(n/, IS
»,>. !'.. !>, in appeal.
rpon an assessment of clainagcs for j^iiod-j
sold, defendants tried to prove a • ontract to de-
liver the goihU ill 'rorontn frci; of charge, and
that they were refused by defendant in consc-
iiueuce of their airiving with charges on thcui.
iiiul the jury found nominal d images only : —
Helil, that such matter should have bcm pleaded
in bar, and w.is not availabli! for defendant on
.in assessment of damages. (.'o/j/iA/c/,' v. Thl-<ili ,
7 V. I'. •-'7.
Ifcld, that niioii the evidence given in this
case, a jury might .•txse^'i scver.il daanigcs on
each of the three counts ; the lirst two being
for assault and iinprisonmeiit on ditlerent days,
and the thirl for nialicioin prosecution. Ainili-
tn„ V. /,r,/y„,-, •_•(>('. v. i;W.
XII. MiscKi.i.ANKois Casks.
An action of trover may be nniintained against
the obligor in a bond for sceuring the tidelity of
a cleric, the oliligoi- liaving torn oil' his seal —
(and this, altluuigh the bond might be considered
as still subsisting and sutlicient to sustain an
action of debt) — and damaLTe may be recovereil
against the obligor to the .auieunt of the penalty.
77/1' /'/V'.-'/i/i/j/, ,(■(•., tii't/i' liiiiikiif i'/iji'-r C'iKiilii
v. Wii/iiirr, -2 (>. S. 222.
Where in indebitatus assumpsit the defendant,
as to all the moneys in tlu' declaration except
as to CX\ 14s.. pleaded the general issue, and as
to that sum pie ided payiiient of CI Is. Sd. into
court, and no damages ultra ; aiul the plaintiti'
replied, that he had sustiiueil greater daniai,'es,
but at the trial olitaiiiei! a verdict for the dill'ei'-
euco between the siiiii of ilH'.i 14s.. and t'l Is. Sd.
paid into court, as a sum admitted lui the record
without giving any evidence -the court set the
venlict aside, as it was incumbent on tlii' plain-
tiff to prove damages, no specitic sum being ad-
mitted oil the r'.x'ord in this form of action.
A'o.ys (7 (if, V. ({(trrlsiiii, () '). S. ()2(i.
Semble, that thou'di a license to erect a dam
given by the ])laiiitirt to the defi'iidant not under
seal, is insulKcient to create an easeuient, yet that
it may be sutlicient, as a license, to juvvciit the
plaiiitift' from recovering d images for the erection
as a wrongful act. I'oliiii'^iiii v. luitcrlii it nl., %
Q. B. 340. See, also, lihinr v. liriiil. ',) ^). B.
152 ; Cniiiiilil Cniiijuniji v. Pittij.*, 9 (I. \\. (iti'.t.
Tn an action .against a harbour company, for
refusing to register a transfer of stock by one S.
to the plaintiffs ; Held, .as to the shares for
which the plaintiffs were entitled to recover, that
they were strictly entitled only to their value at
the time of demand and refusal to transfer ; but
the jury having allowed a larger sum, and this
ipiestion not having been pressed on the argu-
ment, the court did not reduce the verdict. Mi:-
Murrifh vt nl. v. lininl lli'ml Iliirbuiir Co., 9 Q.
B. 333.
A bill l)eiiig filed by the holder of debent\ires,
issued by the defendants and payable to bearer,
I
■-!
999
DEATH.
to oiifDrce piiyiiu'iit of the ilebfiitnri'S, the eoni
luiiiy liy Jiiiswfi' (iltjecteil tliiit tilt' persdii ti
\t-1i<itii fill) ili'lii'iifiiriw \v'i>ri> i<^<4iii>il. vv:lm n. iiihm'H
lOfjfj
Wliere one cduiit is gnod iinil iuiother bad,
an«l tlie (l;iniagcs yciieral, the odurt will not
arrest judniiR'Ut, hut award a venire <le novo.
<hr<ii.'<v. /V /•'•,//, 11 (.). 15. 3!I0; Ihmiry. Tttif,
2:1 Q. K ISS.
Interest is in jinutiee nmcli more freijtieiitly
allowid \>y our juries, than Kiiylisii authority
would seini to warrant. Sjnin'i v. J/ir/ar, '2\
Q. H. ->77.
In an aetion ou an adminiatratiou bond, the
want III a cleeree is a j,'ood jilea to a hreaeh for
not distriliuting, hut it is no gmuiul for staying
proceeilings, nor is the want of a eitation for an
aeeount, nor the omission to shew the reeeijit and
misaii]iroi)riation of funds. On sueli lireaeh full
daniaues may he reeovered. Xvillv. JfrLi(iii//iliii,
4 I', it. .SI-_>." C. L. Chain!). — I>ra])er.
DKATH.
I. Bv Accident -.V'v XEdLioExci:. ;
II. Akatemf.nt or I'EvrvoK of Achons ok
SlITS. !
1. Gvncnillji — Sci- Pit.vci'icK AT Law— |
Phactice in- H(.UITV. j
'1. Eii/ci-iini Jill/;/ iilc lit II II lie /ii-i) tunc — Si'C I
.llIKniENT.
III. FliESlMl'TION AS TO — Vic KvIDENCE.
IV. Death ok Pautner — See Partner.ship.
The court gave leave to enter judgment on
cognovit agaiii.st one defendant, the other being
dead. XirhiiU v. Cnrfwrhjht, Tay. 4()4.
Leave to enter a suggestion of death of plaintiff,
and proceed under "ilOtli sec. of C. L. P. Act,
185G, will be granted upon an ex parte applica-
tion, upon adid.ivit shewing the iiatiirf aii,;
state of the ae'ioii, and that the party aiiiilvin!
is plaintitr's legal representative. /i'micA „'„;/ ,
v. rii,'i-li,ii:tl, W L. J. 48. ('. L. Cliainl,. \|^'
Lean.
A sale of lands having been onleivij uiidtrti
7th see. of the I'artition Aet ('. S. ('. c ^.^^.
I be made by eertaiu persons agrenl i|ii,,{| |
the parties, one of the persons iiaiiuil ivl'uyi.l t,,
aet, and the petitioners then a|ipliid ,,|, dj^
ground to reseind tiu' order forsali', iind lni'mr.
titioii to be madi' by the real I'epnsint.itiv,.
f.luiere. whether the order might imt haw ln,.j
]iroperly varied or reseiiuled by eniisciit oi nl]
those who consented to its beint; iiiaiie ; i.r if
one of those appointed to make the sale worctn
die or beeome ineapable of at till'.', wlictluT the
court iniglit not order the proceeding-, to liiniim.
pleteil by those reiiiaining. In n- Ki(uirl,,,,i„i
V. /'(mV, lug. H. .111.
A rule to enter a nonsuit ha\ iiii; Ihiii L'raiitnl
in the County ( !ourt in April term, \\a» .Inly
enlarged until the following teiin. Tin iiiil^.'^
died before that term began, ainl im siu\i;,smi[
was ai>poiiited until after its expiiatimi, Imt the
clerk of the court granted a rule to eiilaivi. ii.
It was argued in October term liffiiiv the nnv
judge, M'ho treated it as still pending, and :;avc
judgment : Held, that he was rights /,..</;, v
EiiiiiioiiK, 2.") Q. n. '2V.\.
Death by "accident caused by intuxicatihn, "
— Meaning of. Sec /ialiii r v. C/ni/, 27 ',». I1.4IK,
Held, following liradbury ''. Morgan, I It. i
C. 2-t!), that the death of one of two uuaraiitur!
fortlie iiayiiient for goods, did imt extinLiiiislitlie
guarantee, it not a]ipearing that any imtiiolkii!
been given to plaintitf on behalf of the tstatc
of deceased, or that the survivor sii|i]iiisi',| lie
was released by the death of the ntlnr; Imt, "ii
the contrary, acknowledged his lialiility a~ -till
subsisting, and jiromiscd to settle. /■■)//..' v.
MH.'iiir,', 21 C. P. i:f4.
By the death of the principal the authority nf
.an agent is determineil. Wliere, tlu'ivluiv, :iii
agent obtaincil on credit from parties with wiiia
his principal had been in iiegotiatinii imvidiisly,
a supply of furniture for the Ikhlsc of tlu' |irin
cipal, in which lie had iiiteinleil lairviit' mi
business, but befcu'c any binding agiceiiiiiit Mas
concluded, or the furniture delivered, tho iniii-
cipal had died abroad, the court ivtusnl to
decree a speeilic performance of the einitr.Kt to
purchase, and ordered the adininisti-atnrs, who
had taken possession of the goods, tn ikliver
tlicni to the vendors, and ])ay the e ists nf tlie
suit instituteil for the juirpose of (ilitaiimiL'i«is-
session of the furniture, or security fdrtlioiiriie
of it. JuriiiK'.t V. Wortliiii'jluii, 7 Cliy. III:'.
The vendor of real estate had dieil liffniv tii(
execution of the conveyances, ami liis infant liiiri
tiled a bill praying for speeilic perfiinnaiico ui tlie
contract, which the defendants (the viiuk-i'si ml'
mitted and expressed their willingiuss to i irrv
out but for the obstacle created l>y the dtiitli ol
the vendor leaving his hcirs-atdaw infants. The
court nnder the eircumstanees maile a ilooiw
for specitie performance of the aj^reeiiu'iit, Imt
without costs to either party ; the costs of the
infants to l>e defrayetl out of the bahiiKC oi
purchase money payable by the ilefeiuLuits.
Wci/w V. Ferrie, 10 Chy. 98.
lODO
1001
DEBENTURES.
1002
iiatuiv
till'
u i>ai-t,v iiiiflyiiu
■e. I}< i.«7i;iNi//,;
\,. ('Iiainli. %
inleri'il iiinlirt''.
'. ^. r. V.v.si,
lUllllnl ivfusrlt,,
iM'l'li«-il "II tl.H
salr, anil liir|iir.
il ri'in'csiMitativi,
it 111 it liavo l„,.]i
liy I'liiisi'iit III' ;ii;
I'iiiU iiKiilr : iir -;■
I! tin' sale woiv'.M
tiili.', whctluT till
.'ocliii;js til ln'Odiii.
I /'I Klliiirl,.i,t „i
villi; lii'tii ur.ihtnl
■il term, was iliily
ItTlii. 'I'Ir JMilJe
, aiiil nil siKicsMit
xiiiratiiin, Imt the
niK- til liilarjit; it,
II lifl'mv till' iifw !
[leiiiliiig, :iiiil ;.'ave
IS right. /,i.<i';' V.
. liy iiitiixi^Mtiiiii."
rimi, -JT 1,1. 11. W.
I'. Miiri;,iii, 1 11. i
• iif two uuiiiMiitiirs
not i'Xtiii.i.'iiishtiK'
hat any nutiieliail
L'lialf of tlio istate
vivnr SUli]lli#l'illk'
tlir iitluT ; liiit. "11
lis liahility a- >tili
si'tth'. !■'■ !':■'■' \:
y.\\ tho autlii'iity "i
|ll01V. tluTl'liilV, ;U1
|Kirtii's\vitlnvli"iii
litiatimi incvimisly,
1 hiiMsi' lit tlwiiriii-
I'liiU'il L-arryiiis; m
linj,' agvcc'iin-'iitwas
L'livcivil, tlu' jinn-
cimrt ivl'iisol M
Li' tlio I'liiitmd to
lliiiiuistratiirs, mIm
giioils, tn lU'livit
Iv'tlie cLsts III thi'
of iilitaiiiiiwi"'.-'
Jiu'ity t'liftlK'iirii'i
L 7 Vhy. lit'.
Iiil iliuil In't'iire the
liiil his iiiUint luiri
liiirl'uniiaiK'i-'iittlie
1 (tlu' vfiiik'osi *!•
lliiigiu'ss to «m
lilhy tlieilMllii'i
j-law iiitaiits. The
la iiiuilf a (IwM
agreement, Imt
J; tl'ie eiist3 of the
|if the l.ialaiioc ni
the tleteiKliiits.
Where the surety of a reeoivor ilies iit>n<liiig
the suit, the receiver may obtam ex (.arte an
inler let'errini: it to the master to approve of iv
new line. H"''l"-iii v. Cnnr/oril, 1 Chy. Chivmb.
._)|i4. VanlviiiJJ
,'liuet.
DH BKNE ESSE.
Sic Eviiiknce.
1. MlMl"'^!'
KEBENTrUES.
-Sir jruNlCll'.Vt,
t'ouroH.VTioNs.
good ; ami tliat the omisnion to aver present-
ment in the first eonnt was eiiivil liy the plea.
Mi-I>n,i,ilil ,1 ol. v. Thr (I mil Wisl'.ni It. 11'.
6V., '.'I (,). H. •.»•-'■•).
At the trial it appeared that the lioinl ileclareil
on in the lirst eonnt had never lieen in the |ilain-
titl's' enstody, having lieei; retained at tlii'ir re-
tiuest liy defendants' snlicitor, ami it was proved
tliatwhen the lionds fell due, and nfi to.luly, I8.")7,
defendants had funds at the ageiiey out of whieh
they would have lieenpaid if presented: Held,
that the pleas were provi'd : that defendants
were not liahle tn pay interest after the Imiids
matured ; and that the judge (iroperly direetcd
H verdict in their favour. I li.
The defendants, under '24 \'iet. o. 83, issued
their delientiires payalile in ISS7, to which were
aiipended coupons fur interest in tlie fnllnwiiig
form ;" S-W) coupon No. I, .'*40. The Tormito
Street Itailway Companv will pay to the Indder
hereof, on the 1st duly, I.SIW, at the Hank of
Upper Canada, Toronto, forty dollars, interest
due that day on lioud No. ,'l. Signed Alex.
Easton, preside!;;." This action was hroiiglit
by the ))laintitras a holder of said debentures,
to enforce payment of the eoiiiioiis for the inter-
est appcmied thereto ; and a verdict was ren-
dered for the plaintitV. On motion for nonsuit
on leave reset ved, or for arrest of jiidginent : —
Held, 1, That thoie was nothing on tiie f.ice of
the debentures to shew that in tlie issue thereof
the company exceeded the powers conferred by
the act above referred to ; and that if it wag
souglit to be contended that they had exceeded
tlie'V powers, that contention should have been
raised by the pleadings :- -Held, "J, That lui evi-
dence having been given at the trial to shew that
theplaintitT was not the person to whom the de-
bencures in question were given, or for whom
they w'cro intemled by the company, it was to bo
presumed that the plaintitl' was the proper per-
son, ai»d therefore the judgment could not bo
arrested ; 3. That the debentures were not void
because tliey were not matle payable to any par-
ticular named individual or eomiiany, as tho
legal etVeet of such an instrument must be con-
.strued to be an undertaking to pay the nnmcys
therein mentioned, to the jierson to whom it was
delivered, and who, by the etl'ect of such do-
18(11, with interest up to the 1st of | livery, becai le the payee in fact ; 4. As tho
Noveiii'lRT, ISri,-), vet they had not paid any in- ! plaintifV was not i.roved to have been the original
teivst at'tor that day. In the second couiit it lioarer or payee ot the debentures sued upon,
wiueiToil that tlie bond was in .lefendants' ami they being choses in action and not assigii-
,., "Sjiiin a-ul cancelled by them, and the plain- able, thus action could not be brought in his own
tiffs tiiirel'iiro could not present it on the day
"'iiiiiiiiteil tor payiiictit ; and that on that day . . . , . - ,
■ ■ ' ■ ■■ not be considered promissnry notes, as the coni-
pany had no power to make promi.ssory notes.
diiiih^ V. '/'/(' TiiViinto Siriif Itn'ilinui C<i., 14 C
l". .-il.-t.
Where a debenture was made in 18G"2, payable
in 187-, "at the Hank of I'pperCanada," withtmt
mentioning any hicality ; —Held, that it was not
necessary in a declaration upon it to aver or
excn.se presentment there, as the words did not
amount to an averment of a named place, and
were either meaningless, or referred to a defunct
banking company in its former business name,
but without any words indicating ita locality,
such company l)eing declared by the ])ulilic stat-
utes to have ceased to exist, livthir et al. v.
T/if Corponit'ion of the Town of Amhvrstbunj, 23
0. P. 00'-'.
The fact that a certain nuinicipal debenture
In.l lici-n stolen previously to its being regularly
ijsiu'il ;- ll'"''*' "" '""' ^" *''^. '^''"".' "' 'V '"'"'^
title liolihr for valuable consideration without
iiitiiv. 'I'l" Tni'^t and Liiiui Cuiii/xtiiii of ('ji/i'i-
Citiiviii V. Till' C'ltU of Hamilton, 1 C. 1'. !)8.
\n action of debt is not maintainable for in-
terest oiil.V "i> debentures, the princiiialnot being
(liw. l-n'"" ''■ ''"'"■ ^'^"//'"■> ■''''•' "/ ""■ ^'''//'!/"
i.,„i''/ii«,'8 ('. r. at)').
Hwlanitioii on a bond, whereby defendants
covdiaiiteil to pay R., or the hohler, at, &e.,
{■'(K), oil, itc., ami interest thereon semi-annu-
aiiv, I'll the ileh very at the (iorc Hank of the
mrr.iits therefor to the bond annexed, and
^[j,t the iilaiiititl's became the holders, .and have
always lieeii ready and willing to deliver said
w.irnuits at, &c., but fl'J for interest is now
,1,,,. :_Hehl, liad, in not averring an actual de-
liverv lit or an offer to deliver the warraiits at
thol'iaiik. O'lionir 't al. v, Printon and Berlin
I!, ir. '■'
<)C. P. '241.
The iilaintitFs sued for interest on two bonds
mill.' liy ilefoiiilants on the 27th of .January,
lS,Vi, for the payment to the plaintiffs or (u-der
(if tho luincipa! money named, on the 1st of
.Voiiilier, 18.)."), at the agency of the Hank of
UliperCauaua in Hamilton, together with inter-
est tlii'iooii. both counts alleged that .altlKutgh
iletrtiilaiits paid the principal on the 2!)th of
Jauua;
tor
lyiiiilaiits hail no money at the agency, and
gave no instruction to the m.anager there to pay.
hefeiiilaiits iik'uileil, to the first count, thatthoy
were always ready to pay the principal and in -
I; terest aeeonliiig to the bond, and did pay the
sauie when iiiescutcd, l)ut that the bond was not
; jireseuteil at tlio said agency on the day a])pointed
f"i 1 aynient, nor at any .itlier time; and that
(kii .hints never owed nor covenanted to p.ay
tin iihiiiititl's interest after that day, when they
Will I'eaily to have paid both principal and in-
tiiist. Ami to the second count, that they had
iiMKyatthe s.aid .ngeucy to pay the bond, but
the iilaiutiffs had no one there, nor was any one
there nil that il.iy or at .any time after to recei\c
the .~aine ; and that they never owod, &c., (.as in
the last plea) :— Held, on demurrer, both pleas
name, unless he shewed he was the bearer or
payee ; 5. That the debentures or coupons could
1003
DEBT.
I0i)(
(^iiji'U', whuthiT when a (jnntrnot \a to pay at
<'i ]mi'ticuliir pliu'e iiiiiiil'iI in a (U'clarntion, thu
L'ent'rul avernifnt tliiit the <k'feii(hintili(l not pay,
iH nut 8\i(Hcii'nt ; iiml any Mtatenient an to tlio
plaintitr not lu'ing at the phu'e named tn receive
the nuiney, ov that tlie defenihint was there
ready to pay it, nui.st not arise liy way of de
fence
II iia
Tlie honii
produced iicknowK'd^cd defenihints
to l>e " indclited to tlie iiohh'r iiereof in tlicHnni
of il , and do hcreliy jironiine to pay tlie same
to Mucli liohler "/ tin ni/i nci/ uf Ihr limik nf ^ft>ll■
il'i'ul. III Uttinrti, nil, il-c, nil llii mim iii/i r n/' tllii
liiiiiil, with interest, at the rate of, &<•., payable,
Sic, ii/iiiii iinm iitiilhiii iif the mn-rii/ imri'iintK nr
fiiii/iiiiin /iiniiiiti) iiiiiii-.iiil, lit till' inii'iici/ at' till'
liiiiik iif Miiiitiu III lit tin- fit II iiftlltiiirn iifnri nii'iil. "
'I'lie declaration stated that defendants, hy their
liond, sealed, iVc, liecanie hound to the hidder
thereof, in the sum of, &o. , with interest, &c.,
to he paid to such hcdder thereof, on, itc, and
the plaintifl' became liolder, thereof, itc. , yet
said sum with interest had not lieeii paid. It
was admitte<l at the trial that the lionds wore
not presented at the place when^ they were made
payable ; and it was proved tliat if they had heeli
so presented, defendants had not fumls there to
meet them : — Helil, that there was no variance
between the bonds declared on and those jiro-
dnced; in the former being stated as paj'able to
holders generally, while the latter were payable
only on surrender and at a particular place : —
Held, ivlso, that it was not necessary for plain-
tiff, as a condition precedent to his recovery, to
aver ami prove presentment at the particular
place, aiut a tender of the surrender of the
bomls, or a readiness to surrender them. Fel-
!owi'.i V. Ollaira Ows Co., 19 V. V. 174.
The holder of a debenture issued by the trus-
tees of a Methodist church transferred it with-
out consideration, by signing an endorsement as
follows : — " I'ay to J. (i. or order, " and delivered
the same to the endorsee : — Held, that such
transfer did not vest the debt in the transferee
so as to prevent the claims of the creditors of
the original holder attacliing upon it. Out/ v.
Goti, !>Cliy. 163.
A person negotiating the sale of a municipal
debenture is not answeral)le that the municipal-
ity will pay the amount secured liy the debenture.
Where, therefore, a township municipality in
pursuance of the Municipal Corporation Act of
1849, passed a l)y-law for the purpose of grant-
ing a loan of money to the Bayham, Kichmond,
and Port Burwell road company, and issued de-
bentures thereuniler, which were subsequently
declared to Ije illegal in consequence of the road
company not having been properly constituted ;
the court, in the absence of any proof of fraud,
refused to order one of the directors of the road
company to refnntl the amount paid to him upon
the sale of one f>f such debentures. Sci'dl/i/ v,
McCullitm, 9 Chy. 4.34.
A bill being filed by the holder of debentures,
issued by the defendants and payable to bearer,
to enforce payment of the debentures, the com-
pany by answer objected that the person to
whom the del)entures were issued, was a neces-
sary party to the suit, but did not name the
person :— Held, that the company must be pre-
sumed to know who this person was, that there
was no presumption that the plaintiff knew him ;
and that the person not being nanicil in fin..
Hwcr, the objection could not be jnsisttd i,i
the hearing. Wood v. Tin'inilu st
Co., 14 Chy. 409.
IM.
'"!
DEBT.
1. Action ok.
1. ll7/./( ;/ 1lv.^, 1004.
•_'. /'I>inl!ii;li, 100."i.
',i. /{iirri'd—Si'i- Limitation
AN' I) Suits.
II. Si;t-okk— .Vfc ,Skt-off.
\rri(,s.
I.
I.
Action ok.
117/' /( it III!).
Debt lies on the Imperial Statiitr i; (,,.,, |\-
c. 114, to recover the penalty, tlioiin|| r|;iii,ii,,i|,j
the informer for himself and the Kin^', miiittiii.
to name the Licutenant-( iovernor. ,/'./(,< „ > .'
I'll a. ■1,', Dra. 32^'. ''
Debt does not lie for the first iiKtalnu'iit nfi
mortgage before the others are due. l-'ni:iiiil,,i\
(tl, V. Johnnton et «/., (i (). ,S. 97.
The city of Toronto an<l lake IIiumii rail-
road company have under the opcratimi nf tin
act 8 Vict. c. 83, amending tlic (iiiuin.il .uni
Will. IV., a right to sue in debt (jiic nt tln' miii.
nal stockholders for an instaliiiciit due iiiimilie
stock originally subscribed and calkd in livtL
directors appointed under the original aitntin-
corjioration. Tlie Citi/ nf Tiiranii, »,«/ Ul/
Huron Unilrodil Co. v. Cruol^sliiinl.-, 4 i), \\ ;!()()
Debt on simple contract docs ndt lie hd
any c(dlateral or conditional uiidcrtakiii.'inilv
McLioil V. Tliixli;/, 7 (.}. B. 40. " "'
To support debt on simple contract, accnisiiler-
ation must have moved to the diJitdi- hiinsili,
not as in assumpsit from the j)kiiiitill tu a tliini
party. //'.
Though debt will not lie for one iiistalnuntiif
a large sum due by instalments, yet wlarctbe
plaintiff sued the defendant in debt im iiKirtee,
setting out, in the first place, tlio duud lietwwn
the parties, with the proviso in it that if tlie
defendants slundd pay iliKK) in nine \ early in-
stalments, and that the first ])ayiiiiii{iii t'lilO,
parcel, &c., shimld be made, itc, and tkii a
covenant fif the tlefendaut only to pay tliLi'lOO
sued for, without any reference to tlie iiiiiiiiviliie
by instalments : — Held, that upmi tliese ,i\»
ments in the declaration, (the pmviisd keiiig j
mere defeasance, and not an express iiiiiliTtakinj
to pay £900 by annual instahnunts) dekt woiiH
lie. De Tiii/l v. MrDunahl ,J nl., S (,». I!. 171.
Where the proviso in a mortgage is ii mere
defeasance, tliat if the mortgagor pay the money
by a certain day, he shall have baek liislinil;
but there is no covenant to pay the iiniiiev, aiiJ
where no evidence is given of a luaii (irilehf, an
action of debt will not lie. Where tlwre «
evidence of a loan or debt, of cimrso a \mmk
to repay it will be implied. Iliill v. Mud'i
Q. B. 584.
Debt does not lie by the granteo of a rent'
charge to is8 i«) out of lands, where there is no
dA.A
Uii)i
1005
DECREE.
looi!
iivincd ill the J.,
I' iUsi»tC(l (,||y
riDN
il- AO.n
itiitiiti" tl (ieo. IV,
tlllilli;lic'lailll(;ill,y
lif Kiii^', i'liiittiiii
•nur. ,/'./,! V i|. t. V,
st ill-tilluifllt nf)
t' lllU'. I'"i'silth ,1 I
i»7.
liiko lliifiiii rail-
t' (iiici'iitiiiu lit the I
tlif iii'igiiial iu't li|
lit iiiH' lit tliu I'ligi-
llH'Ilt illK' ll|lllll tLc I
11(1 t-'iilli'il ill liy till' I
.' iii'iyiiwil act »f in-
TiiriHti; If/"/ lA'
■■thdid; 4 if. B. ;m
does luit lie on
nnili'rtakiii!.' milv.
0.
(putract, a ciiiisiiler-
111' lU'litiir liimstli,
jilaiiititl' to a tliitil
jr one iustaliiieiitoi
lilts, VL't wlitrt- the
ilelit (111 iniirtgiige,
tliu iW'i'il lietwM
L in it that it the
ill iiinu Vfarlyiii-
]iaynifiit nt tlUXI,
iti'., and tbiii a
Illy tmiaytliel'lOO
]u"t(i tli(.' iii(iii(;yiliie
upiin tlit'se aver-
lie jiriivisii ln'iiig >
|C]irL'ss uiulei'takiM
[ncnts) ik'lit woulii
!(/., « t.i. 1!. i:i.
Inortgage is a mere
Tgor jKiy the mmiey
Ja-c liai'k hislanil;
lay tilt' iiKiney, ami
a loan nvileht, an
Wlioro there is
If ociurse a [mm
In,, II V. M'jii} '
IgraiitcL^ (il a rent'
1 where there is no
...iiress covuimutby tho uruntor to pay.
DuiiijtiU
his
Uiiare, if tlieK™'t<-'e ti
iW(«igneeniiglit<li>H(). 1 1<
mid hriiii' (li'lit whether
(,f lei-taiii
■|ie iilaiiitill' ^ave to defendant a hill of sale
tinihiT, in which w.is idiitaiiied a
iiriivimi I'll' making,' the «aiiie void in ca.se the
atleiiihuit -•^lioiild iiay the iilaintill' CM) and in-
terest (in a day nanu'd ; and it was added, " liiit
ilelaiilt lie made in iiaynieiit of said t.'^H), in
It
ri'ni afiiivsaid, then it," the hill of sale, " mIiiiU
i-iiuuin and 1"' i" '"'• '''"''^' '""' virtue: Held,
lieiiiurrer, that detit Wdiild not lie, the deed i
a jironiise to pay.
U. (iO!».
„nrt (if till' whole, eontiary to tlie manner and
""" ^' ' l.iUof sale,
and virtue :
nil III
,i„t .siitiicifiitly iiniiortmg
.Vi-Litiiijliliii V. llrmiM', 1 1 <J,
A. eiiti'is into an ivgreeniunt in writinjj, signed
liv'iiniiii'h. i"* liillows : Ineonsideration of JtTO
iiiiiiliii hand hy 15.. ' h<-i'i-'hy agree to sign a
Li'^ecf lilt ;<- ill the second concession of Kttdii-
i-„ke (lireetly the same is drawn n[i liy the .>!oli-
littii', ill the following terms, viz : To let H. have
tlielann for seven years, commencing from the
tiistiif Aiiril, 18-18, "at tTO per anniiin ; the lirst
iiayiiieiit having hecii this day paid \>y the said
B., the receipt heing acknowledged, and the
ni'xt iiayiueiit ou the first of April, IS.W, and so
(111. If li. wants to give up the farm before the
estiiratiiiii of four years, he is to pay £ 140 to me ;
ii alter four years,' tlieii tTO. If I want to sell
the farm, then I am to pay H. on tlie same terms.
Six immths' notice to he given to either party.
1 am til put up a frame barn, to he completed,
&i., also a house, &c. ; also to split 4,(K)0 rails,
aiiil have them ready for hauling hy 1st January,
liMS, ami to secure whatever wheat K puts in
this fall hy fence. B. is to have his firewood.
Se. I ami if he put in fifteen acres of wheat at
the expiratidu of his term, he is to have the
privilegedf taking itoff : -Held, that such agree-
mtiitwasudt a lease creating a term of yatirs
Imt was (inly an executory agreement: — Held,
als", that ill this case debt for use and oecupa-
timi, ami net debt on the demise, was the proper
fiirni (if action. McLean v. Ytiuiuj, 1 ('. i*. (i'2.
Held, that an action of debt is not nuiintain-
UUe f(ir interest only on debentures, the prinei-
lial not being due. Li/dll v. T/n- Mdi^nr, A/ikr-
i»'i),iiml t'<jiiiiiuiii(illy oj'tlu'Cifi/ nf JaukIhii, 8
;C. r. 3(i5.
Though an assigmnent of the term by a lessee,
|;aiiil the acceptauee by the lessor of the assignee,
1 «ill prevent the lessor from bringing debt for
Itherent, he can still maintain covenant. Moiit-
poineri/ v. fSjieiice, 23 Q. B. 39.
One (it the defendants assigned certain rent
|to a Ill-defendant :— Semble, that debt might be
Imaiiitained by the assignee for the rent. J/ojie
h. H7,i((, 17 t'. P. 52.
2. Pleadings.
In debt on bond conditioned (or the pajanent
if n-nt, a jdea that before the rent became due
Jlaiutiir assigned the premises to A. H., to whom
pefeii.laut afterwards paid the rent :— -Held, good
h demurrer. McDmt(jall v. YoKnij, Dra. 111.
A verdiet or au award specifying the iimount
111 damages against one of two joint trespassers,
IH in itself n bar, whethi'r paid or not, and has
the same elFect as a safisf.-iction by him would
have had in prccludiiii,' any action against ids co-
trespasser. It is therefore nnnccessary in the
jdea to an action of ticsiiass, si'ttiiig out tlu;
award of the damages, to a\t'r that tlii^ kuiii
awarded has been jiiiid. It would lie diU'ercnt,
howi^ver, in pleading an award to an action i[
debt, in whiih two an- jointly liinind : theri
unless jiayineiit of the award lie averred, it is no
bar. Ailiiiiix V. Ihiiii, .". <,>. I'.. •_".(•.•.
Where the declar.-ition is in debt, and the pro-
cess in case, the declaration will be set aside.
Kilrhiiiii V. /i'<i/iilj(, 1 ( '. I,. Chamb. liVJ. liob-
inson.
T.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
|iEPT(»I! ANI> CltKDlTOi;.
Arr.\(iiMENT OK l>Kins ,Vu Attaiii-
.MENT (IK DeUT.S.
AssIliNMENT K(il{ THK HKNEKir OKCliElil-
roHS — Sir li.VNKlM I'H V AMI In.soL-
VENCY.
.S'.i C-HflSE TN
ASSKI.N.MEST (IK DeIITS
ACTIO.N.
Co-MrcisiTKis— .SVc BA.vKiMi'n V .\Nii In-
solvency.
FkaIIHI.ENT ( 'ONVEYANCES — ,S'( ( FkaI-
nll.ENr ( '(1N\ EVANlKS.
Collate UAL .SEtinrrY— .Vc t'oLLATKitAL
SEfUKITY.
Inteuest (IN Dehts — Sii Inteue.st.
Set-okk i)F Deiits — ,SV( Set-okf.
Payment to Cheditoks— AW Payment.
Release (ik Deiits — Sfc Release.
Pakties ro Actions oii Scrrs— -SVc Ac-
tion AN 11 SlIT.
1)p:ceit.
Sec Fkai'd ANii Mlskepresentation.
declaration.
I. In Pleadings— .S'ee Pleauini; at Law.
II. Of Rioht-.SVc Pkactice in Equity.
III. Admissibility of in Evidence.
1. Giniritlti/ — .SV<' Eviden"
2. DijitKj DedanU'wn>i— - riminal
Law.
IV. Of Office — .SVf Minuu'ai. Cokpora-
TIONS.
DECREE.
I. In Foreclosure — Sec Mortgaoe.
II. On Bill for .Sale— .SVe Morhjace.
III. In Otueu Suits — See Practice in EgviTv.
I! U
1007
DEED.
I\'. AmKMiMKNT IIK.
I, III t'lirii'lilKllli Slliln Sir MilUI'dAUK.
■J. /(( iitliir Siil/M—Sn Amenhmknt in
Immii'y.
y. A|'1'I;AI. KIIO.M Sii IlliltiiK AMI Al'I'KAI..
DKDM'ATKtN.
1, 111' HciAD.H .Vm \\\\.
Ili'lil, that uiiclcr till' I'viili'iu'f Ni't nut in this
fiiHi' a i'i)iii|phti' (it'diciitiiiii of the hiliil in i\uvx
tinii hiid Ix'in niaiK' liv thi' Cinaiia ('iini|iaiiy tor
a niaiki't sipiari' tor tiic use cit' thr ti)« n. iiiil a
lit'i'iK'tnal injunrtiiin a^^ainst thi' xalc thcicnl liy
thf i'iPiii|iany mum tlt'cri'0<l with costs. J/iok'ci-
/Ill/ill/ III Ihi 'J'nirii iif (hliljih V. ('(iiK'i/d Coniptilii/,
4 « 'h'y.' ti:i-'.
Ijand was cniiviyi'il to thu town loiincil of
(ioih'i'icli till- a niaiki't jilucf, anil tiio iiniiicil
t'onsiiluiin^' tiiat Unss laml wax nMjnirfil tor tiiat
jiufpose, u>;rL'fil to ^'lant a imitiim of it to tlie
county council for the site of a court house.
l){ on nil inforinatinu lilcil to rcstiain the ]iro-
cee.lin;,'s: llclil, that a coriionitc lioily acting as
a trustee is as anu'nalile in ei|uity as an imli-
viilual : tliat any alieruition of the lanil was u
breach of tru.st, anil the laml should lie recon-
vcyed ; and if no conveyance had liccn executed,
its execution should lie restrained. Altui'iiiii-
O'l'iiiral V. (iiii/i rirli, ."> ( 'hy. 40'J.
The district council of the Home district,
havini; reserved the land in i|Uestion for the site
(if an engine house for the city of 'i'oronto, upon
which the city authorities erected a iircnian's
hall and engine house, the court restrained an
Rction by the county council some years after-
wards to obtain iiossession thereof, and declared
the land dedicated to the use for which it had
been ^n set a[)art. Cilif nj Tofntilo v. Miiiiirijiul
Viiuiii-ii ';/' }''!/•/• lUiil I'lil, ti t'hy. .VJi").
In 1830, when the site of the town of Hrant-
ford was laid out in building lots, a part con-
taining nearly two acres was reserved for a
public ni.irket sipuire. In KS.jO, the municipal
council of Hrantford execnted building leases
for ])ortions thereof, with covenants for renewal.
UpoK ail infoniiation tiled, the court restrained
the renewal of such lenses, or the granting of
any new leases : the attorney -general assenting
to the leases already made coutinning for their
respective terms. I'ln Attunu ii-ili iii val \. Mil-
>iici/iii/ili/ ii/ //ii- Tiiirii III' Jlnni/Jiiri/, (i ( 'hy. ililL".
8ee, also, Wm/r v. '.'iir/iiiriilii>ii <il' liniiitl'nril, ID
Q. B. --'OT.
In IS.'iti, llic owner of land in the city of
Toronto, laid it oif into building lots. I'art was
enclosed, forming a large garden and grounds,
on which was the residence which had always
been occupied by the proprietor of the estate or
his tenants. The surveyor represented this
part on the jilans as within fences, and wrote on
the space, " MeOillScpiare." Around this wore
laid oti' building lots, subseijuently sold to several
persons. In 1857, a bill was filed by the city,
and the owner of one of the lots, for himself
and all other purchasers of such lots, seeking to
enjoin the proprietor from buildiui,' iiiiiin ,,. ,i
ing this space, on the grnnnd citlur thiit'l"
Haiiic had liccn dedicated to the piililjc ,,,.,"
the piirchaserM were entitled to f lee ai ic,(, (1 ,'"'
to, nr to ha\ e tile same retained ,is .iihiiii n,,
alleging u verbal agreement to that .ilivt ,,t |"
time of the Side: Held, that wliiit huil |
done did not amount to u dcdiiatidii tn n*
public, and that the evidence \mi» imt h\\\\.,. .'
to establish a grant of the easi'iiient ilaihinl ii'
the |iiireliasers ; and that if either ilium y,
been established, there Was a niisjiiiiii|,.|. „,. i '|'
j tills. Cilij III' 'I'liiiiii/ii V. Mi'tlill, 7 CI,.. ^,.||"''
I Held, that the e(ir))oratioii of tluj ijtv „•
Tiiliiiito, had iiower under f. S. I'. ('^ ^, w! '
lease the fair green or I'rineeof WaieH'|)i,rk,,',||j
that the facts shewed no ilcdieiifinn „(• jt
a public park. Attiiniiii-Uiinial \- (■;/,/'!•
Toi-onU,, 10 (hy. 4;W. " '
KIlDIMl'S roTKST.VTKM,
Under ('. S. ( '. c. KM), s. .S, the natJief .,,,,1;.
cation by a justice of the peace iimst Ik' til,
before some justice ol the peaci^ nl tliu r.innt i
for which he intends to act. It eaiiiidt lir
ministered liy the clerk of the pe;ue fur ,in,|
county under the w rit of dediinu, imUstiiUf I
issued with the commissinu of the \m:wv 7/.''
hirt n, t. v. Diiirsirrll, -24 (). li. .n>7. '
PaI1TNKI;-hi[,
1011.
DKKl).
I. ExEcuriox.
1. Piirliin, 1010.
(a) Hi/ Piirhii m
2. /ill //htirii/i P
3. Kciil, 1011.
4. JMii-enj, 1011.
.'). Other CiMs, 10 1'.'.
(!. P fill if I if —See KviiiK.NiK.
7. liii Mdvrii'd Wiiiiii'ii—Sit Hi -ii.o;
AM) WlKE.
II. KscHow, 101.">.
III. Al-TEUATION, CAXlEl.l.AlillS, .MlTRv
■IION, AND REVOt'.Vrio.V, 1017.
IV. C'ONSTHI'tTloN AMI OpKHATldN.
1. linCililU, lOl'O.
2. Denrri/tliiDi if Liniil,
(a) ill Pll/rllh. UL'L'.
(b) Unri'rtii'Ditii, Kt'7.
(c) liii-iiiixi.-<liiit lhxi-riiil'o>iis,W).
(d) Ki'iiliiiir til p.,/ hi'iii, \m.
(e) (Hill I- Casis, lO;)").
(f) //( Shi-riJ".f Dciils—See !<>£<.■
MENT .iND Taxes.
(g) Uoiindar'ii'H — See BofXiuRV-i
SriivEV— Wai Kit AMI Watis]
COI'KSES.
(h) Of RoaiU or R'niM of ir(ii/-.S^j
'Way.
3. ConililiiDis, /'nfirraliini!!, oii'l E»fi
tions, 1039.
I I'ltlur tli;it i
1>'; imlilic, „i (i^
I ill :ill M|nln,,j„
tli:it vtli'it .itfl
t wli;it liji,l |„«_
inlu'iitlnh tM 1;,
WllX lint HIiUm,.,
HMIlC'llt c'lalllliil ',
fitlLcl' rlmiii l,„
lli«joi||,i,.|'iii|,l,|.,,
''■", 7 riiy. wi"
111 "f tllu city ,(
• i^. (•• «'. '•■ M,t,
i)t' Wales i«rk, uM
li'ilicatiiiii iif it n,
II It) ml V, ri/i/ ,/l
<'i'A'rr.M,
1, tile iMtlluf ■jii.il;:
Pl!!U'l' lUII.>t Ih.' t.llv'L
iL'iu'o lit tiiL' iduimj
t. it caiiiiiit In.' ai|
the lii.'iU'e fur sikkl
ilcililllll'' linti»tlltl.t|
(it till' luaci'. //■■
H. 4-27.
1009
DEED. 1010
l'.M;TNFi>iiir. I
1011.
, IHKNCF..
l.l.AlliiV, MiTlll'
iir.VlIiiN, lUli.
Ol'KIi.VTIi'N.
^111,./.
10-27.
Ih .M')'i/>/ir,ll..', Utt
/;,,'y Aiid, um.
.0;!.").
/>,,,/.s .Vm' A"F>|
1 T.VXKS.
_.. ,S,,' lliilNMV-
W.\TF.l! .VMiW.lTEKJ
Vi nhjiii "f ir'i;/-'^''<j
VI.
VII.
VIU.
4, ll„li<ii'lin,i. I().T.».
•, Drills mull r llif Short Fudhh .Icf*,
I (MO.
ll. Iliiiijiiiii mill S'llr, I04'2.
7. AV'I/' i'liilhil Sir KsT.VTK.
5, l-Ji-iililiri I" Kj'/ililill ■*<Vi' KMUKM'R.
!», I'lliiiflltiir l>i <</•*- Si !■ iNKR.t,
ilKiTIKMN'i AMI V.\I!VIM1.
I M,„l.lil<lis, WVX
•J. f till, I- l>"il^, 1044.
;{, /',)/'ii/ Ki'iili lii'r III I'll I'll JitiiLi Sff
KviKKNfK.
I. A.i.^iiiiiiiiiiil" - s'li IUnkimtiv vM)
isHi(i.\ i;m \.
lliMMM., 1047. I
l,,i>r in-.y.M, 1047.
I. hy,ilrllCI llf- Sn KVII'KMK. I
SKiri"*'' Asini:.
1, I'm- i'l-iiilil S,r F»\l-|i ASK Mis-
iMiriiKsKNni'iti.N - Fit.viDri.Ksr
CtiNVKV.VNCK.'t.
■J, cl'iiiil "II '/'''' <SVi' S.u.y. (IF L.\Ni>. t
^, lUiiii^ii: \iii'>'' '"■■ '**'"' HKdisTitY Laws. |
V I'.UM'K I I.M! nKKD.S. I
1, (If A/i/il'' lllii'illli)'- 'Si'i Al'fRESTU'E. '
'J. Anii'lllili'lil <"' ('iillilii'niliiill - 'V'C
i{ANKlHniV AND 1n.H()LVENI'V.
;!. (\iuh-iu'tn for Ike Side of IaiihI — Sen
.SAl.K liK I.ANK.
4, Am-hlit Ihiih Sii EviDEME.
•), HiiuiU—See Bonu-Salk ok Land.
li. Viiriiiiniln -Stv Covenant -CovE-
NANT.s KDK Title.
7. Biiriif />iiii'ir-Sn DowKi!.
$, ni' (li/l-Sie \'(il.l'NTAl{Y C'ONVEY-
ASl'ES. I
% 0/ lliijlil III' li'iiil -Sii Way. j
10. 11/ Htlmie—Sie Uei.ease. j
11 llf Siliiirilliiill Sli' HtSllANK AND'
wiKK. :
li. AiilxM— .SVcLANDl.OHJlANDTENANr. j
13. Mvi-tijiujinSie Moi{r(iA(iE. j
U. Pvlidtn- Sii- Insi-kance. j
K'l. Ilii Part III rn— See I'ahtnekship.
10. PiiluilK See Ckown Land.s, ;
17. Quit Cldiiii DveiU—See Rei.ea.'^e.
18. Hij liifiiiitx Sie Infants.
Ill lUj Miin-kil H'ohien — See Dowek — ;
Hr.SHAND AND WiKE,
'JO. Hij Sliiriffs—See Assessment and
Taxes— Execution.
-1, Tni^l JMiln'See Tki-sts & Tru.stees.
'", 'l\i li'iHijiiiU.i hiKlitlltioiin — See.
ClUKCHES -^loKTMAIN.
'23. Vuliiiiliiry ConrcniinceK — See \'olv.n-
TAUY Conveyances.
XI. Other Maitee.s.
1. Affiilavit.t to Itiilil to Bail in. A etioiw on
See Arrest.
2. Lien of Attorney or Solicitor — Sev
ArroRNEv and Solicitor.
G4
3. Prrfxtrntiiiii uml Temlervf -Sn S m.e
<iK Land.
4. h'-ti,/i/i,l III/ lUril See Knlol'l'K.I..
.\ Meiiiiiriiiln in Kviili iiei Sn Lvi-
DEM E.
(i. /'reMiliii/ilioni ilM III hi nil Si I Kvi-
DENCE.
7. I'rul'iii Si, I'l.rMiiM: \i Law,
5. hi I'm III fur Sri Itivi'iME.
tt. Tmrrrjur Su 'ruiiVKR.
I. r.\r.( I I'liiN.
I. I'lii/'ii.i.
I!y (K'ud lii'twi'cii A. It. ,'»ii(l ('. |t., t'atlur ainl
Mdii, (if tiu' dill' )iart, mill v.. V, mill (.. IL,
jiaitnors, iiiiuli lniiliU'iM. of the ntlicr \Kit. tlio
Him, ^\ ith tlit ciinsoiit nf his I itlicr, liuiiml liim-
.Ni It' u|i|ii'i'iitii'i' til tlu' I'lPiu'li liiiiliU'i's, 'riu' in-
Ntninu'iit ciiiitaiiK'il fliii* ilaiisi' ; "And laMtiy,
I'liitiiio mill I'.'iitlifii' ;ii'ifciriiimi(.'i, iti'., tlu' saiil
A n., (". 1).. and I'',. I'", and <i. IL, do liiiiil
tlii'iiu'i'lv.':; until iiirli ntln r in tlii' suiii uf, iVc. : —
lli'ld, in di'lit liy tin,' fatliir alone, a^jaiiist K. F.
the surviving' iiartiuT ; I. 'I'liat idl difiiidaiit's
i'(i\i'iiaiits will' witli till' .ion and not the iilain-
tilV: that tho VMnds, "unto I'ai'li otliiT, " did
not incaii si'ii.-irati'ly and iiulix idii.dly, luit that
iiirli jiiiil;! rcsiii'i'tivi'ly, i.r., K. F. and (J. IL
jointly to A. H. aiidC. I*, juiiitly, ln'caiiic jointly
iMiiliiil to till' otluT ; and that thi'it' was tluTc-
fdi'i' a iioii-jdiiidi'r of iilaintill's. (,)ua'r(', tho
Biillicit'iii'y of tlu' di'i'laiatioii as j^'ivi'ii in tliu
ri']>drt. Coniiillv. (hn n, 'A I'. 1'. •J4!t.
A hn.'ilHUid y ilocd alii'ii.'* land, and tlio wifu
though not n uiicd in tho i'oiiinR'in.'i'iU(.'nt as a
fiii'pial iiai'tv, in tho liody of it, reloasis hor
dowor and both execute it : Held, a sii"iiieiit
liivr df ddwor. Jionter V. yurtlicule, '20 C. 1*. T'i.
The agreement sued on was lieaded " S)ieoiti-
e.'ition 111 .srhoiil house in srliool seetimi No. 4,
'J'illmi'y I'last." Tliili followed in detail the size
of the Imildiiif,', and the work and niateiial to ho
einjiloyed, and it eolieluded : " The whole to lio
of widd material, and to lie liiiisheil in a gmul
worlvinaidike manlier, and to lie linislied on the
1st .Inly, KS7.'{. In eonyideratioii the [larties of
tho first part agree to jiay the jiarty of the seeond
jiart the sum of .'?70S, one half on tho ITitli May,
and the other hiilf i\ hen the said sehoiilhoiiso
is oomiileted." Then followed the ."lignaturos of
tho three school trustees, with their cor]idrate
deal, and the signature lit the jilaintitl'. It liore
no date, hut was jiroved to lia\e lioeii executoil
liy the parties ahoiit the 1st of March, 187.'{. It
referred to no iilaii, hut tho trustees furiiislied
the plaintitl with a jilaii to work Ly, .and they
paid to him .'S400 on aeeount. They refused to
jiay the lialaiico, or to aeeept tho tmilding, alleg-
ing that it was not proiiorfy eontruoted, Init the
learned Quooii's counsel, who tried the case w itli-
oiit a jury, found for the plaintitl' for the halaiicc
of the.'j708 : Held, that it wiut sutliciently clear
from the instrument itself, and the acts of the
liarties, that defendants were the jiartics cove-
nanting with the plaintiff, and that the instru-
ment Wivs intendoit sfi to operate ; and tho verdict
was uplield. Ciiiihlitn v. Srhiio! TriiKlie-t uf Srhool
Sertiiiii .V(i. 4, ill tlu Toiriifliiii nj Tilljiiry East,
in the County nf Kent, 35 t^. B. 575.
^:||
I : I
K, " m
TrVS
m.
1011
DEED.
h'li
2. By Illiterate Persom.
A (leoil executed l)y a person making his mark
is not iuvaliilatetl by tlie mere omission to read
it over to liim. Dor A. liii/i/drd v. Millard, E.
T. 3 Viet.
Where tiie siil)seri))ing witness swore that the
agreeni'jnt was not read as it stood upon the
record : — Held, no execution. Hatton v. Flih,
8Q. B. 177.
Where a blind and illiterate person, an Indian,
had been induced to put his mark to a chattel
mortgage without its being read over to him,
.although he desired such reading : -Held, not
a sulKeient execution, (tn-i ii.i v. T/ionuit, (> ('.
r. 383.
3. Se„l.
An L. S. need not bo inserted to a decil set
out upon oyer. MniTiit v. Lonrk.-i, Tay. SOo.
A circular flourish with the word " seal " in
scribed, is not a legal seal, yaiiln v. Kiltx, T.ay.
2()9.
iSemble, there is no absolute necessity to put
the hand on a seal in executing, or make any
declariition of delivery. llutton v. Flih, 8 Q.
B. 177.
Defendant had signed the deed, and after-
wards merely markeil the pajicr with the end of
a poker, opposite to his name, not even .ac-
knowledging the mark as his seal : — Held, not
a sealed instrument, ('kiiiciit v. Donaldson, 9
Q. B. 2!)9.
Where a seal is set opposite to the name of
the party signing, the document must be treated
iis under seal, althougli the testatum is, " 1 here-
by subscribe myself." Whittier v. McLennan,
13 Q. B. 6,38.
.Semble, th.at an impression upon the paper,
without wax or any extraneous substance, is a
sufficient seal. FoMer v. Gedden, 14 Q. B. 239.
Defendants liaving signed a bond left in a
hurry, without having it properly sealed, which
was afterwardsdone, nut it w.as clear they knew
it to be a bond, and it was stated on the face of
it to be undei- seal. The jury liaving found
against the defence that the bond w.as not sealed,
the court refused to interfere, holding it not one
to be favoured. Tlu' Mutual Fire Insurance Co.
of Pre.fcolt\. Palmrr, 20 Q. B. 441.
A deeil had been duly signed by the parties :
hut instead of any wax or wafer being affixed
thereto for seals, slits hail been cut in the parel;-
ment, and a ribbon woven through, so as to a])-
pear on the face of the document at intervals,
o[)posite one of which each of the parties to the
deed signeil : -Held, a seal. Hamilton v. Dennis,
12 Chy. 325. Affirmed by the Court of Error
and Apiieal, 14th March, 18()7.
4. Delivery.
In a bond for a deed, where the condition re-
ouired that a deed should be "executed .and de-
hrered" before a certain day: — Held, that the
due execution of the deed before the day and
forwarding it to a third party for the obligee,
though it was Hot received until after the day,
was a sufficient delivery under the terms of the
bond. Muirliead Y. McDouijalletal, 5 0. 8. 642.
A promise to deliver a convcyanci'. jinlni „
promise to execute it. Whitlii r v I/,./ '
13 Q. B. (i.38. ■
A deed will be assunijil to have hctn ileljv ■
on the d.ay it bears date. Ilinimn-il \ 'n„f
31 (,>. B. 427.
, A mortg.age in favour of jiaitics in j.;,,
! was executed in this country, anil Itft j, .'
I hands of the attorney wlio jircpari'il tlie.seciin't
■ with directions from the uiiirti,M;.'iii- not tiitii
; ister it until further orders, .\ttci' tin- ili^a
of the mortgagor, the mnrtgaj,'*' was iMivl'^j !
\ \\\i to the .agent of the mi)rtu,ii.'i i -<, «lii,|ia,it»
i sauu- registered : - Held, that tin iv li,„| i,,,,,
sufficient delivery during tlu.' lifitinif of tU
mortgagor, and that a person win, intcivil .i,v, 1
l)artnership with the iiinrt;!a<.'iir, ami tlitiiltl
acquired an inten^st in the uiiiil;4aj.'Li'stati- Hml
a kni)wledge of the circunistaiUT.s aitiiiiiiii.tU
execution of the mortgage, did so .siilijt.et t'.til
claim of the mortgagees. .I/i(//v <•/,„;, v |/.j
keehnie, 7 Chy. 23. ' '
A suit was brought in this cmnt ai'aiustji
Insurance Company to rc.uver fnrlnsssustaniijl
on the groinid that the polii;y was nut a iiirfe'l
ted one, and therefore that tiic ]ilaiiitili||;i,i!j|
remedy .at law; but thi! alligations in tho
were that the policy had bcrn diilv si.r|ie(| ■
the i)resident and secretary, and cmniturH.TirJ
by the agent at I, (the pl.acc' w here tk- in.^iinnj
was eflFected) and was re\ily to lie ilcliviiv.1
the plaintilf : Hehl, that tliese allij.'ati.ins im|
betaken in law to ineluiji; a ilcliviiy ,ii t
policy, although it hid i;iit aetmilly railipl;
plaintiff 's hands ; and on tins ^.'r.mnij :iil,iiiiii|
rer for want of eipiity was allow od. .l/.-/'.i,/,/J
v. AndvK /nsuriinee ('o., 20 Ciiv. 4Sti.
See Bell V. AfeKind.tei/, 3 K. it A. !», [i. I
See II. p. lOI.V
.5. <)ther Ca.v.i.
A. received from B. a powcrof attiirntyt'ixill
lands. Uiuler the power .V. delivereil tuC. .iiyl
professing to be made as tnlliiws ; "lltt««ii|
A., by and under power of atturncv, 1>
date, &c., by and from one I!., Ac, ycuiii n,
first part, and C. of the ntln r pirt." Tiir
out the deed, .\. the s lid [Mrty of tlio lir,<t|iji^
was made the grantor, ml the ilcuil \nb tin
executed. .Signed A. [!..S., | sig/iedc. [LS)
Held, that H. 's inter.^t did nut |ii>s In i
deed. Seinbl,.', tint even il h, hailliun iiuleJ
the granting party, the deed winilil luvi' l«J
inoperative trom the inforni.il i lent (Xi.raaf
DacKsteder v. Baud, o Q. H. .")!l|.
In order to except to the exeeiitiuii nlailwlj
the defendant should |ileail nun est tictiiiii;!
should not tieiuur. Jinrnsv. /e//;. /A- /«, S (t. I
280.
The sheritl' having, in IS,'1!(. put up .iini «"ll
part of a certain tract ol' liml, liy iiibtake ninf
veye<l the whole, descriliin^' it in siidi tenn^
th.at on the fiu-e of the deid nu iiarijii iiiiiHt
distinguished from the rest, .iml allinuilt'M
ahme : — Held, that he nnist lie cuiisiikitiliiitl
same light with any other person having a jn'M
to execute : th.at he could not he rig.inW^
functus officio by the execution of the tirstJ
which was wholly inoperative aiul vuiJ ; >
vcyiuiou, inclmWa
iffhr V. .1/r/.,,,,.
liavi' l)feu(Wiv«;i
iiiliriifti V, '/'/kkI-,
' partii'S in Kutit
bry, iiiiil loft iiiSe
rcpiinMl tlieseeura,
i(irt.^;igiir not tutft- ]
(. Atti-r till- dtis ■
•tf;i\j;i' wiis ilfliv.'i
tUii.urc s, wliii \\M\:i
lilt tln'K' li:iil IhMi 1
tin; lil'itiniu (if tl-
Kill wlm I'liti'iYil jiib I
t;j!iit.'iir, iuiil tlifiikj
liiortnau'i-'i'stati'. Hill
stniiiM's attciiiliiiL' til I
, dill fill suliitvt tntjj
M„rhi-hiw V. J/r
this umirt agaiiutsl
ovi.T fiirlosssnstaiiitJ.j
iilii,'y \v;\s lint 11 y.dki
it tlif iilaiiitill'lia'lril
alli'gations in \]<.
lutijii iluly nigiit'
ary, ;iiiil cmuitiTsigTiil
CO wluM-e tlio insnraiij
•lily to 1"' ilclivtri'il
I tlifsi; iillopitiiiib luiJ
uili; il ili'livi'iy Ml tiJ
'.lit iU'tually rcailiol tlT
II this jiriiniiilaiUiiml
IS alhiwcil Md'"iM
.'() Chy. 4S(i.
, :$ K. & A. !t, II,
1. 1015.
Lowonif attoviicvtiixill
l\.,lolivorfiltii('.;'..Wil
(as liiUows: - "lii't«K«l
;l- lit attDi-ni-'y, Iwfflijj
li.. Jtc, yeimi'li.tiitti
fithiT i>:irt." TliP«i;!i1
|| jMi-tv of tiie lir#t icrtl
ml t'lio ili'i-il «a* 'l''|
s.,lsi^no(l^.ll.^
,liil not iii.-s liywl
III il r>. liail linii ni:m|
,l,.,-il woiilil lw\^' '«»
|niialiiioile(if«tciitia|
I, H. .V.ll.
Ihf (.xci'iitiiiiitifafclj
l.ail lion est f'lctuni;'
[„.. V. /.'.AW.""i.SQi
lS3!t. imt iili.™l"11
m liinl, hv nn>t:>lie ."«|
lihin- it ill 'ii^'l' f.™
irilno vavaU'""''"'
Ist, aiMallowcatol*
lusthecolisliltwliil"
l,,orsonli«viiig:'H
[I'l not he rog.inW ^
lerative ami voiJ;
1013
DEED.
lOU
fhathe might therefore, in 1840, make a deed \ might properly have been asked to presume one
f the part actually soM. Qiiiere, whether, in j or hoth of these propositions in favour of the
, • .^gg fjip iJi'htiir hitriiiij (I f'lttf til nil tlir grantee. Nolan v. For, 15 ('. P. 5(i5.
I .,.! .-'nin'nit'il. if the part sold hail Iwen seiia- i u 1 1 ii ^ ^i i ,i • i" i c i.i i
liiitil coin ci/ni, " ^ ,,}..;_:i.i. f_ il _i. A.i. Held, that the word "s.gnud hetore the le.s-
sor's name to a lea.se, raised no ])i'esuiiiption that
the instriiiiioiit was a uojiy, not the original.
IWlin- V. U'ooils, KJC. r. L>!>.
itelv (leRcrihed and divisible from the part not
"^Iilil on the face of the deed, it could have passed
alone under such circumstances, though the case
niiiiht he otherwise if the n.istake had arisen
from inehnliiig land not owned by the debtor.
Oiuere, also, whether the proper course would
not have heeii to apply to the court to set aside
what hail lioeii done under the execi> tion. Due
I 'fifuiii V. Mill'i; 10 <l B. tio.
T'le crown, in 1798, granted .'iOOO acres, includ-
inj; the laiul in (piestion, to J. and K. Hay, and
three others, children of the late governor Hay.
hi 1800 K. H. became a nun in Montreal, by-
being in jiartiiership,
I (piantity of tobacco,
Defendants, B. and A.
agreed under seal to buy
H. signing the name of defoi "..int's firm opjiosite
to ')ne seal. (.liUii-rr, whctlier one or both defen-
dants could be lu:ld li.ibh; upon the deed. Moor
V. n>,ji,i ,1 ,ii., -nil li. 4r>!».
Executors empowered under a will to sell
lands, are not bound to sign the deed in pres-
j„ .„„„ ._ ence of each other, as arliitrators executing au
whieh, aeeonling to the law of Lower Canada, she | award. LUtl,- v. A Ibiinii ,■/ nl., 28 (). B. 337.
Iweame civilly <lead as regarde.l her property, ,,,,,,,,. , . ^x.
ana "he afterwards died there in 18.3S. In 1804 ' . .< ••.''^. ^ «': having ina.le an assignment on the
,1 H. toiiveyed "all his fourth part or share" of
the lamts menlioned in the above jiatent, "con
taiiiing in all 5000 acres," to his brother-in-law,
M. the hiishiind of one of the i>atentees. Tliis
(leeihvas executed in Indiana, and was expres.sed
til lie ill consideration of natural love and ailec-
t'l.n anil of $1 paid. When executed, the words
'•Iimrth"aiul " live thousand" were omitted, but
attached to the deed was a letter of the same
(lat«, signed hy the grantor, and addressed to M. ,
ill w'hicli he mentioned these blanks, and tohl
M. to till them up according to the fact ; adding
ill a iiostcript, that if any errors should be found
ill the deeil, he authorized M. to reeify them,
ami that such corrections should be valid as if
lie hid made tliem himself. The words "fourth"
anil "live thousand" were inserted after M. re-
ceived the deed in Lower Canada. (In the 1 9th
of.lamiary, 1805, M. and his wife A., and J. H.,
In- deed reciting the patent, conveyed to R. and
li. ■2000 acres, parcel of the 5000 granted "being
the undivided part and portion of the said 5000
I atres lieloiiging under and by virtue of the said
litters patent to J. H. and A. M. The plaintiff'
ilainied under these conveyances ; defendant
iriiler a deed from the heir-at-law of .J. H. : -
liiH, 1. That hy the deed of 1804, J. H.'s slnre
lapsed to M., the consideration being suflic'eiit,
:i:ii tiie insertion of the words mentioneil not
1' ill:: fatal under the circumstance ; -• That the
I iiiveyance of 1805 passed his share as belonging
I I M.j tlinngli the execution by M., as his attor-
ii'V. could have no efTect for want of authority.
,S''mi'( V. Prentm, 20 Q. B. 513.
Where four parties, described not by their
[, (iwu names and personal descriptions, but as a '
|ciillective hody, not shewn to be corponite,
iHgiied and sealed a deed with their own names
|aiiil seals, they were held to be individually
Ihnund. (Mill V. MrLci-KO)i, 10 C. V. 54!).
A iiiaiulanius will lie to compel a witness to ]
Jriive the eseeutioii of a deed and memorial for !
Registry. Hnjimi v. O'Meara, 15 Q. B. 201. |
A conveyance of land, dated 27th March, 1824,
4th July, 18(iS, a deed of coiiiiiosition and dis-
charge, dated 8th August, wa. lileii on the 14th
Se[)teniber, 18(iS, not being then signed by the
insolvents. It was eonliriiied by the county
judge on the 2iid December, 1808, but the con-
tirmatiou was reversed in this court in March
fidlowing, on the ground that the insolvents had
not executed it. Afterwards in the same month
the insolv iits executed the deed, without any
previous leave from the judge, and without re-
tiling it ; and they then set it U]) as a defence to
this action previously brought (ui a note. Per
Richards, ( ',. .J. The deed was invalid, bcMUse
not properly executed by the insolvents. Per
Wil.son, .T. Such execution was not an alter-
ation of the ileed, for the insolvents being naiiied
in and piirties to the deed were only perfecting,
not altering, it by executing ; but the deposit of
such deed with and notice thereof by the assig-
nee, under sec. 9, siib-s. 2 of the Act of 1S(>4,
were necessary after the execution by the insol-
vents, and for want of this, it was ineffectual : —
Held, also, that it was no objection that some of
the assenting creditors had executed in the name
of their firms and by proeurition, and that no
power of attorney wis jiroved, for they had
accepted the composition under it. A linn v.
(lin-riift it nl., 30 Q. B. 1(;5.
\J]><m an anjdieation under 29 & ,30 Vict. o. 4.5,
for the discharge of a prisoner committed under
the Apjirentices and Miiuus' Act for diaobediencc
to his masters, on the ground, inter alia, that
the indenture of api»rentieesliip was not a bind-
ing contract, it hiving liemi executed by one
only of the ein|)loyers, in the n-une of tlie firm :
— Held, that it wis binding at all events ujiou
the apprentice and the partner who had signed
it, and there was nothing to shew that his co-
l>:irtners had not been ])reseiit and assented to
the execution. Itiii'inn v. MrXnnt'i/, 5 P. R.
438. -C. L. Chamb!^-A. Wilson.
A debtor, on going away to raise funds to pay
his debts, signed and seah'd a printed form of
mortgage n])oii certain lands, without inserting
either the nune of himself or the mortgagee
as to hold to the grantee from the .30th day of ' therein ; his wife also executed it, and he locked
' same month until the day of her decea.se : — | it up in his desk. l''rom Halifax, he wrote to his
eld, that though it might, if executed and .agent here instructing him to till nj) the blanks
ivery of seisin given on the day it Inire date, be .as he shouhl lind necessary, which was accor-
oid, yet if notcxecuteil or livery of seisin not dingly done, and handed over to the mortgagee :
iveu until after the day on which it was to | — Held, that this was a8ufHcientexecuti<ni of the
^inn to ojierate, it would be good ; and that, mortgage ; and that it was valid. Bank of
iler the facts stated in the oase, the jury | Montreal v. Uukrr, 9 Chy. 97.
:il
1015
DEED.
1016
ij tf ..
ii
m, ■■
■-■,, -
^
(i|i'«:
w^
^ 1
M
P'^''"'
m
W«.
Held, .iffirming the last case, that whether the
deed tliere mentioned as having been executed
in blank operated as a deed, or as a mere parol
agreement, itcreatedacharge \\\Mn the ecjuitable
estate of the debtor ; and that a registered judg-
ment creditor, having notice thereof before the
registration of his judgment, woiiivl be bound
thereby. Jiuiikof Muittnalw Bidrr, 9 Chy. 298.
The court will not, in favour of a volunteer,
order the ilue execution of an instrument infor-
mally executed, although the relief would be
granted to a purchaser for value. JtosK v. Foj;
13 Chy. 083.
A prior deed, through which tiifi title comes to
the vendor, having been executed by the attor-
ney i>f the grantor, does not render the title in-
valid, or such as a purchaser will not be bound
toacce))t. Family. Moore, 1 C'hj'. Chanib. 139.
— VaiiKoughnet.
Deeds executed in England, conveying land
in this province, do not reipiire to be stamped
under the provisions of tlie Knglisli Stamp Acts,
but are valid in this ])rovince thougli unstamped.
Mtirraij \. Vdnlirocklin, 1 Cliy. Chamb. 300. —
Mowat.
An application for an order to compel a party
to execute a deed directed to be executed should
be on notice, and will not be gi'anted ex parte.
Wittiiuicot V. CorkirliiU', 2 Chy. Chamb, 442. —
Taylor, Sifirtiir;/.
II. EstROW.
Detinue for an indenture of bargain and sale.
Fleas, 1. Non-detinet ; 2. That the <leed was
not the plaiutifl's. The jury found that the in-
denture was delivered by oni; A. to the defen-
dant, to be delivered to the plaintitl' after A. 's
death, on condition that he (the plaintifi') should
keep A. until his death, iind shoulil pay his
debts ; ami that the plaintiff had not maintained
A., but after his death was ready to pay his
debts. Defendant, who w.'is one of A.'s credi-
tors, hail refused to accept his debt from the
plaintilt', and had destroyed the deed : — Held,
that on these facts and pleadings the plaintiff
could not recover ; for, as to the first plea, the
writing being delivered to the defendant merely
as an escrow, was not in fact a deed as described
in the declaration ; and, as to the second plea,
the plaintiff had forfeited his right by a breach
of one of the conditions. /'ii/iiuldK v. Waddell,
12 Q. B. 9.
The jury having found that a deed by father
to son had been absolutely delivered, although
the father asserted the delivery to ha\'e been
as an escrow only ; — Held, that the evidence,
set out in the case, supported their verdict.
Yoinxj >t (il. v. I/iihktit III., l.'>y. B. 2.")0.
To an action for work and labour, tlie defen-
dants pleaded a release by agreen;t;uc uader seal,
making profert. The plaintiff replied that the
agreement was delivered to a third party as an
escrow, on cimdition that it should be void on
default made by the ilefentlants in payment of
€200 by a certain day ; that the defendant did
not pay, wherel)y the .agreement became void,
and so was not the plaintiff's deed :— Held, that
the defendants must prove the execution of the
agreement, and that it was not necessary for the
plaintiff to shew the conditional delivery iw p»f.
of his case. Liifht v. \Voodntock and hah- V/
li. W. <t H. Co., 13 Q. B. 21(). "'
Declaration on a covenant by defemlaiit
surety for the payment of rent by oiiu 15. \'\L
on equitable grounds, that the dcfcinl.int oxc
cuted on the understanding and rcinvscntatiniL
that Y. K. & E. shoulil also executr, anil tlia-
he should be responsible witli thoni ainl iii,!
solely ; and that it was represented tn liim i,y
B. and by the said K., that i":Mediat(!lv atV
defendant's execution, the other tlutu wiinlJ
execute. It was then alleged that tluv invtr
did execute, and before any breach ainl witli.iH
due dilligence, he gave notice to i\\r pliiiitiiis
of the premises ; and that he claiiiuil t.i luvu
been released by sucli nonexccutioii. Tlnix. ^vm
also a plea of non est factum :— (ItM, that tln'
defence was admissible under this jiUm, asshuw-
ing in substance that defendant, exuLiituil the
deed conditionally only, and as mi e>,ciii\v. 77,.
(!orpi>r'dii)n of llic Ciiaidii of IIukhi v. Ai-iii^ti-^m
27 Q. B. 533.'
To an actir- • ainst V. k (i,, iinl dii tlitir
covenant as s >is for the ])ayine!it ui' iviit l,v
lessees, V^ ple.i jd that the agreiMueiit was ilnmj
up to be signed by one C. as his cdsiirotv, ainl
delivered by him as an ('s<tow, until C. 'f.\\u\\\\
execute, which C. afterwards refiiswl tn .In, aiil
that the jilaintiff then, without V.'s nuisiiit,
erased C.'s name and inserted that uf tiu' nthtr j
defendant. The plaintiff replied that after l)iitli
the defendants had executed, \. ratiliuil the
agreement and accepted the ntlier ilefi'inlant as
his co-surety. Tliere was contrailiotdry eviilence
as to the ratification, but thesubscrilmigwitiiosj |
swore that V. executed without any cuiKlition;
C.'s name having been previously crasul. The
other defendant said he signed at V.'s ruijuest;
and it was proved that V. had toM ntliors he
was responsible for the rent : - Held, tliat this was
evidence from which a ratification miglit lio in-
ferreil, and as the defendant iiad laiil Ijv for
years, leaving the plaintifi' to beliovo au'l tillin,'
others that he was bound, a verdict fur the
plaintiff was upheld. Jli'iidi'ivtm v. Vn-inil'i"]
,'t ai, 21 Q.B. r)U.
To a declaration on a covenant for i|uiutoiijm--
mcnt in a mortgage to the plaiutifl's, I'xetuteil
by T., the defendants' grantee, -mv. ikfunilant
pleaded that T. did not, after the making nftliat
deed, convey to the plaiutifl's. Tla> dci'il frum
defendants to T. was dated 22iiil June, aini tkt
mortgage froiuT. to the plainlill's was dated IW
f)f April, 18").5. Both were rogistcTcd mi the
28th July ; the deed lir.st. It ajiiKarcil tk
there were two mortgages from T. tn tlicplaiii-
tiffs on another lot when this nidrtgagt ra
made, and instead of which it was givon. .\iuj \
executing this mortgage T. fmnid tliat a ileeJ j
from defendants to Iiim was necessarv to gi~e
him the legal title, and he got the died in (|iifi-
tioii. The two mortgages were nut disuharged
until the Kith August: -Held, tliat tiio HhiJc j
transaction slicwcd that the iiuirt^ifige was imtin
tended to take ett'ect until the iU'rfwtiiignfT.'j j
title and the discharge of the other iiiortgagts for
which it was given, and that the iilaiiitiifstlu* j
fore could recover. Tin' Tni«l aiiit Limn IV'^'
Vovn-lctnl., 32 Q. B. 2'.>2.
Plaintiff was defendant's tenant iif luvinisss j
in Toronto, for which runt was in arrcar tn the I
1017
DEED.
amount of §145.83. Defendant sold the premises
to the crown. The deed, dated the '23rd of
OctolH'r, 1872, was delivered by F., the agent at
Toronto of the minister of justice, to M., the
u'entof the defendant, on the 15th of Novem-
),^r, for execution. On the Kith it was e.xecuted,
■uiii W'l^ ''.V ^^- li"'*"<l'^il t" '*'• ^^ an escrow, to be-
Cduie a deed wlicn the money was paid. The
(leod «M returned to F. on the 2(>th of Noveni-
1)01' iiml he registered it on the '2!)th, but the
nioi'iev was not paid till the 7tli of December.
Pefeiiiliuit having distrained on tlie plaintitt' for
rent on the -0th of November : — Held, tliat the
(lei'd dill not become operative from its original
(Icliverv by relation back, in whicli case defen-
dant wmilil liave had no reversionary interest at
the time of the distress, but from the payment
f,f the luiroliase money only. O/inr v. Mowat,
34(,i. B. 470.
R. lieini; indebted to B. and V., the plaintiffs,
in S1I7!).7()> gives his note in September, 185!),
at six months, payable at the Hank of Montreal,
in (iiielph, with current rate of exchange on Xew
York. In .June, 18()0, K. made an assignment, to
wliich the plaintill's were executing pai'ties, which
—after reciting an agreement by R. s creditors
toaecciit 5.S. in the i", payable in six an<l twelve
months, to be secured by notes satisfactorily en-
dorsed, .-md a covenant by R. to pay that sum -
cimtiiiiieil an absolute release of R. fromalltho.se
cxetuting it. The plaintiffs before executing this
instnnnent claimed the promised endorsed notes,
or to iiold the original note till the compromise
vaspaid. On the (ith of August, 18(i0, another
assignment was made by R., in trust, till he
should pay his creditors their dividend, and was
sent to the plaintiffs for execution, with the
statement that he ( 11. ) coidd not get the security
viMiited, "the party that promised to become a
partner drew back.' This assignment the plain-
tiffs did not sign, because when tlie first ofier
fell through they sold the original note, and
claimed to have nothing more to do with the
; niaf jr :— Held, that the giving of the notes by
R. was not a condition precedent to the delivery
of the tirst assignment, and that the execution
ami delivery of it, as it contained an absolute
rcleaife, operateil as a discharge of the original
(leht, IloifilicI ct (il. V. Jiitt/iiri'onl, 11 C. P. 213.
See Madrchnie v. Macktchnii-, 7 Chy. 23, p.
lor.'.
1018
the
III. Alteration', Canckli.ation, MrTiLATrox,
AND RkVOCATION.
A hiank having been left in the bond, which
was afterwards tilled up with the consent of the
dehtor, althougli not in his presence, was held
no variance on non est factum. Lcunard v.
Memtt, Dra. 281.
An action of trover may be maintained against
the obligor in a bond for securing the fidelity of
a clerk, the obligor having torn off his seal (and
this although the bond might lie considered as
still subsisting and siitlicient to sustain an action
of debt) and damages may be recovered against
the obligor to the amount ol the penalty. T/u
Prmknl, ^-c, of the Bank of U. C. v. IVidiiKr,
2 0. S. 222.
A several obligor is a competent witness in an
action against a co-obligor to prove the cancelling
of the obligation by tearing off the seal of
co-obligor. //*.
A bond niaj' be given up to be c incclled by
the president and directors of a b.inking corim-
raticm, witlumt the appointiiu^iit of an attor- '
ney. ///.
A lease having lieeii graiitcl by plaintiff to
one T., the defendant, before tln' I'xpir.Uioii nf
the term, without the idaintitV'.s kodwlcdi;!'.
struck out T.'s iiaiiu! and ])ut Ins own o[)|>ositc
to the seal, and entered and paid rent :- Held,
that the pluiiititf could not maintain covenant
against defendant on such lease. J.n/i/i v. Afdi/,
14 Q. B. 47.
If it be clear that adeeil or patent, oiiio iierfeet,
has afterwards bad its seal and signatinc torn
off, or has l)eeome otherwise mutilated l)y acci-
dent, or the effect of time, such mutilation does
not render it invalid. Dor d. A'W.s v. }fr<lill, 9,
Q. H. 224; '/'<-/-/ v. C\i;„, l(i (J. B. 51 (i.
The crown, in I7!)8, granted ."itHW acres, incluil-
ing the land in ([Uestion, to .T. and Vj. Hay and
three others, children of the late governor Hay.
In 1800 M H. became a nun in Montreal, by
which, according to the law of Lower Canada, she
became civilly dead as reguriled her pi'oiierty,
and she afterwards died there in 18.'?8. In 1804
.1. H. conveyed "all \\\s fdiirth part or share" of
the lands mentioned in the above patent, "ccm-
taining in all .5000 acres," to his brother-in-law,
M., the husband of one of the patentees. Tliis
deed was executed in Indiana, and was expressed
to be in consideration of naturid love ami affec-
tion, and of .SI paid. When executed, the words
"fourth" and "live thousand" were omitteil, but
attached to the deed was a letter of the same
date, signed by the grantor, and addressed to M.,
in which he mentioned these blanks, and tohl
M. to till them nji according to the fact ; adding
in a postcript, that if .any errors should be found
in the deed, he authorized M. to recify them,
and that such corrections should be valid as if
he had made them him.self. Thewonls "fourth"
and "five thousand" were inserted after M. re-
ceived the deed in Lower Canada. On the lOth
of .January, 1805, M. and his wife A., and ■!. H.,
by deed reciting the patent, conveyed to R. and
1). 2000 acres, parcel of the 5000 grante.l "being
the undivided part .and jxH-tion of the .said 5000
acres belonging, under and by virtue of the said
letters patent, to J. H. and A. M. The ))laintiff
claimed under these conveyances ; defendant
under a deeil from the heir-at-law of .L H. : —
Held, 1. That by the deed of 1804, .1. H.'s share
passed to M., the consideration being sulKcient,
and the insertion of the words mentioned not
being fatal under the circumstances; 2. That the
conveyance of 1805 passeil his share as belonging
to M., though the execution by M., as his attor-
ney, could have no effect for want of authority.
Stimrt V. Prcnlix.s 20 (l B. 51.3.
The plaintiff, by lease, consisting of seven
sheets, and bearing date March 15th, I8(>2, de-
mised certain premises to \V. On the 21st of
July fidlowing, this lease Mas cancelled by .an
instrument under seal ; the second an<l fourth
sheets were taken (mt and rejdacod by others,
and it was re-executed and re-delivered without
any other alteration. As it then stood it was
dated as before, to hold "from the first day of
April now next," for nine years "from thence
next ensuing," at a yearly rent, payable" in ad-
;l
1019
DEED.
1O20
iP^^:
vivnee, that is to say, r)ii tirst of April, 18fi2, and
oil the tirst of April in each year during 'he
term ;" tiie conclusion being, that the parties
had tlicreunto set their hands and seals, "the
day and year lirst above written :" — Held, that
tiie lease' tooii ellVct from the delivery, on the
Ulst of .liily. IS(»-_', not the date : that tlie term
began on tlic 1st of April, 1S()3 : tliat the tirst
year's rent, payalile "in advance," was not due
until tlrit (lay, tiu- words, "tiiat is to say, on
tlie 1st <ii April, ISfiL'," being merely falsa de-
nionstratio. lUllw MeKhKhi-n, 'I'A (i. B. W2.
Hold, atlinning the judgment of the Queen's
IScncli, in the last case, that the lease spoke from
the day of re-execution, not from its date ; and
tliat tlio provisions of tiie lease, in (■onnectioii
with the surrounding circumstances, did not
atl'ord sutticient evidence of a contrary intention
to justify a ditl'erent construction. Spragge,
Y. ("., A. Wilson, .1., and Mowat, X. t'., diss.
Jirll v. MrKhtils,',!, -A E. & A. il.
Tlie cancellation of a deed does not divest tli'
estate which lia.s passed by it. Friincrv. Frtisn;
14(". I'. 70; Ldid-y. Wlill<, 18 C. P. <.)'J ; /Va.s(')-
V. Frii/ir/.: •_'! fj). B. MA ; Dm' d. Burr v. DtnUon,
8y. B. KS.\
The erasure of tlie date ia not to be presumed
to have been made after execution ; but even if
it were, the deed takes eU'eet from its delivery.
Fraavrv. Fniurr, 14 C P. 70.
A person who has exeeute<l a deed cannot be
bound by an alteration made in his absence by
his verbal direction. (i>uicre, whetlier upon the
evidence, more fully stated in the case, defen-
dant could be held estopped by his acts from
disputing the lioiid so altered. Martin v. Ilitn-
iiiiiti, L'ti ij. B. SO.
To bind a perscui to a deed altered out of his
presence, and by his verbal directions only, the
acts done should be uncipiivocal, and consistent
only with his positive assent. //*.
To an action against V. &(i. on their covenant
as sureties for tiie payment of rent by lessees,
V. pleaded that the agreement was drawn up to
be signed by one V. as his co-surety, and was
ilelivered by him as an escrow until C. should
execute, whicliC. afti^rwards refusetl to do ; and
that the idaintiH" tlien, without V. 's consent,
eraseil ( '. 's name and inserted that of the other
defendant. The plaintitl' replietl, that after both
defendants had executed. ^' •"'tilied the agree-
ment and accepted the other defendant iis iiis
co-surety. There was contradictory evidence
as to tlie ratiticatioii, but the subscribing witness
swore that V. executed without any ciuidition,
C's name having been pi'eviou.sly erased. The
other defendant said he signed at V. 's reiiuest ;
and it was proveil that V. had told otliers he
was responsible for tlie rent : — Hehl, that this
was evidence from which a ratilication might be
inferreil ; and as the defendant had laid by for
years, leaving tiie plaintill' to believe, and telling
others, that he was liouiid, a verdict for the
plaintiti' was upheld. Jhuili'ruoii v. I't'niiih/i'u
et til., 27 il B. 544.
By an indorsement under seal upon ii lease of
premises, it was agreed between landlord and
tenant that the lease was to be cancelled on
payment of the seecmd instalment of purchase
money under an agreement for purchase of the
premises leased ; but that, if the agreement be-
came void by reason of the non-fultilment of its
terms before or at the time of payment uf th,
second instalment, the lease was to remain in full
ftn'ce ; and in ease of the lease ))ciiig canciUci
no rent was to be paid after .3rd Keliinarv, l,si;n
thedate of the agreement to purchase. riii|t.|.tl|,
lease, the rent was payable in advaiicu, and m
the date of the agreement tr) imrcliaso, ,v ,M.^f.
ter's rent was overdue, liaviiig matnivil i,i, |,.
Pcbruary previcmsly. The .second iiisfaliniiit ni
purcliase money was iluly paid under tin.- .iirivt.
ineiit, and the interest idso, acconliiiKtothHi'ii-
ant's evidence, but according to the lainllniirs
it was not paid at the time, thoiigli he ailniittt i
that lie had .igreed to allow it to staiiil fnr ^,11,^.
I months afterwards ;-- Held, that by tlu: nai
I randum under seal, indorsed on tlic lenso. th^
rent under it, payable in advance, was imt tn li,.
paid in case the lease was caiicellcil ; ainl tliattlit
deed was cancelled, 111 accordance witli tlnaLiivf.
meiit, by tiie payment of the second instaliiici;t
(>f purchase nuniey, even suiniosiiij,' the intiivst
not to have been jiaid, for the landlnidadiintti'.l
he had waived its payment at the day. hv sus-
peiuling it to a future time. I'm''!' \'' lluiuiAh
etal., 18 C. P. 110.
G. & Co. having made an assignment en the
4th July, 18(i8, a deed of coinpositiiui anil ills.
charge, dated Sth August, was tiled on the 14tli
September, 18t!8, not being then signed hv the
insolvents. It was contirmed liy the icmntv
judge on the "ind December, 18()S, lint tlii> lOii".
tirmation W'as reversed in tiiis cunit in .Manh
following, (m the gnmnd that the inselvuiits
had not executed it. Afterwards, in the same
month, the insolvents executed the ileed, with-
out previous leave from the judge, and witlimit
retiling it ; and they tiien set it up as a defence
to this action previously brought on annte:-
Held, that the plaintitr, a non-a.sscnting iinli-
tor, was not bound by this deed, f(U' theevi,liiia>
(set out in the case), shewed that the nieiiilufi
of the insolvent linn hail individual eiediturs,
and it provided cmly for i)artnersliip debts. IVr
liichards, V. J. —Tlie dec<l was invaliil alsn. In-
cause not properly executed by the insulvents,
PerWilson, .1. — .Such executicui was iicit an alter-
ation of the deed, for the inscdventsheiiyn.iineil
in and pn'"ties to the deed were only iieifectins;,
not alteiing it, by executing. A!!.;;: \. (litirM
ffdi., .30 Q. B. 1 (').").
An injunction restraining a corpuratinn finni
permitting certain buildings to lie eomiikteil
under a contract, was dissolved, it a)i|ieaiiiii;
that the contract which had lieeii eiiteied intn
iietween the corporation and a contracter hmi
been caneelleil. On production of the eeiitriut
in court, it appeared that the rcseissimi lefeneil
to lia<l beeneBected by cancelling the signatures
to the document, which being objected tiia.s imt
legally discharging the cor[ioiation fmni liahility,
the court, as a condition of dissolving the injiiue-
tion, retpiired a formal caiioellatioii of the oiii-
tract to be made ; VaiiKoughiiet diihitaiite m
to any necessity therefor. Tlir FiUnluiiyli /,;/•
A'<!(Urtinr<' Co. v. Tin' Miiiiiri/inlihi uf llu' Tmnt
uf Si. OifliarliK.'i, 10 Chy. .371'.
IV. CoN.STRfCTIOX ANP OrKHATIOX.
1. HeritaU.
K. having agreed with the plaiiitilFs for the
purcliase of some lumber, the defeiulauts loa-
mm,
1021
DEED.
1022
■fultilment of itj
payiiiiiiit cif th«
t(i iviiiiiin in lull
buing .■iinwlk.l,
Foliniai'v, \%\
husi'. ri'ulfrtW
lulvan.jv, mill at
mrohasi', a ipiar-
iiiatiuvd (111 1st
mil iiistalinriit nj
iniilcr till' au'ivt-
iinliugtiitlu'tfii.
II tlif lainllnid's,
mgli lu' ailiiiittui
;ii staiiil lur s.nm^
■t liy tin; luoiMii.
III the lease, the
CO, Was Milt tulie
lleil; ami that the
ec with the at;ri-f.
uc'Diiil iiistaliiieiit
iisiiin the iiiteivst
aiidlnnladiiiittfil
ttie (lay, liy siis-
ssigiiment (ill the
[xisitiiui anil (lis-
tile.l (111 the 14th
len signed liy the
I liy the eimntv
8()S, hut the (.•iiii-
s ediift in Maroh
it the insdlvents
avds, in the same
il the deed, with-
idgo, and witlii.ut
it nil as a del'eiioe
gilt (in a niite :-
|i-a.ssenling I'lVili-
fur tile eviileiiee
it tile nieialiers
dual ereilitiirs,
lip delits. IVr
uvalid alsii, he-
the iiisiilveiits.
as nut an .ilter-
litslieingii.imeil
Illy iieri'eetiiii;,
'/..■■„• 1. (In, roll
ii'lKiratiiiii fnmi
lie emiiiik'teil
it aiipearing
eeii entered iiitn
enntnietiir li;iil
iif the eiintnu't
L-issiiin referred
the sigii.itiires
ijeeted te as imt
(III fninilialiility.
hiiig the injunc-
.tiiin of the ohii-
let dnliitanto m
Kit\iiliiii-[ih ill'
Hill ,ij till- '!'<'<'■«
)1'ER.VTI0N".
plaintiffs for the
ilefendants eon-
2. Doi'.ript'wn of Land.
(a) III Put< »^v.
The (leserij)tioii in a grant will lie taken as
correct nnless |)niveil wrong liy the clearest tes-
timony. /Mil' d. Smith V. Mci/eri, '2 C>. S. SOI.
Held, that a grant fruni the crown of "all
that certain parcel nr tract of lanil in the towii-
sliip of York, containing "JOO acres more or less
(incluiling lot '2\ in the Ttli concession), living
the clergy reserve lot "il, in the tith cmiccssion
west of Voiige Street, in the said township," the
land not lieiiig set out by metes and hounds,
conveyed to the grantee lot "Jl in the Ttli con-
cession as well as lot '21 in the (Jth concession.
Iiohinson, 0. J., diss. Doi'd, Ki'ittimiv. fVi/iui/,
tJ(». .S. ;J14.
Where land was granted hy the crown border-
ing on lake Ontario, and was described in the
grant thereof as extending to the water's edge,
it was held that under this description the
water's edge must be the boundary wherever it
might be, and therefore that land which was
gradually and imperceptibly formed by the re-
ceding; of the water would belong to the grantee,
the boundary of the lake being fluctuating, and
the grantee not being restricted to the land
extending to where the water's edge was at the
time of the issuing of the gi'ant. JJac d. J/i-
Dntiiitil V. Tim Coliuiirii J/nrlnnir Co., M. T. 7
Viet.
Land gradually and imperceptibly formed by
the washing of sand and shingle from the lake,
is the jiroiierty of the owner of the adjoining
Bittiu' up the contrary in an acti<in not fouiuled j land, even although the formation is caused by
oil the iiistruiiieiit, aiid wholly collateral to it. ; the artificial erections of a harbour company who
J/ieiiov. A"!), IOC. P. 3()3. j are entitled to particular privileges by act of
liarliament. II).
The point of conunencement "in front on lake
Krie, at the south-east angle of the lot," means
the south-east angle as it stood at the time the
grant issued, and not a point shifting with the
encroachment of the lake. //■ ;■ v. ^Vti/((/( <f <il.,
21 Q. B. 309.
iciitcd to guarantee hij punctual payment for
the s.wie ; tmt inadvertently the first agreement
in wliioh K. bound himself to pay for the lumber.
Las recited in the agreement signed by the
L,i'r,.tioi as bearing date the 22nd December,
IS'il whereas it was dated on the 8tli .January,
l«V Seiiihle, that on such an issue if it were
I slK'wn that there was but one agreement between
the iwrties relating to the matter, the error in
the recital uf it would not be fatal, and the plaiii-
L,i'.,,iii^,|it reeover. Wii'/sinirtli < I dl. v. Tuinilii/
,,,;/., Tog. !!• ''7!>.
r|'||,, ,|i,,i,itilV |iioved a deed to himself from
1) lilted ;hil of 'lidy, IS.'il, registered on the
'til el' the same iiiunth. The defendant put in
•ui nistriiment under seal, dated .'h-d of .hiiie,
ISIT, hctMven one M. and 1>., reciting that dif-
ferJii .es had arisen between them, and that M.
Ind linm.dit ejcctiiieiit to recover jiosscssioii of
till- let, 'Miehnigiiig to the said M.," and in coii-
si.Uniti^iiii lit M- withdrawing the record, I).
areedtliat the lilt sliouhl be valued by certain
rarfii'S. ii'i'' eiiveiianted to pay to M., or secure
liv ainr'tiMi'e uu the land, whatever that value
mi ht he. "-Vii vahiatiiiii was made ;— Held, this
aMviiiient heiug unregistered, that the recital
initeiiuld not atlect the phuiitilt's title. I,'iil-
I.J, x.iU-Lniiu 12Q. H. 205.
The iveitals in a deed put in as evidence, --
Heh' net eiiiichisive as to the facts therein
Btated. .\-..'/' V. WiiiO'i; !) f. I'. 394.
Therooitals in a deed poll are not binding on
I tlie siraiitt'f. being entirely the language of the
: tiaiiior. mid the grantee is not estopped from
Ejeotniiiit nil a sheriff's deed, which recited,
I that hv a veil. ex. he had seized the lands, and
1 ame the suiznre made by virtue of the said writ,
[till exjiosed theui to public sale, kc, and then
mited to the purchaser. It appeared that the
Uls had been seized under a H. fa. previuasly
Jissikd, •■lud that the ven. ex. ordered him to sell
Ithelaiiilsso seized : -Hehl, that the misreeitals
I dill lint invalidate the deed, and that the plaintiffs
Iniifilit shew what the facts were. I'oi i-t a I. v.
Jj>'.V.i/U4C. V. 424.
Liiuls were conveyed, in 1804, by deed to \V.
{K. liy a deed pull endorsed upon the deed of
|1HU, and dated in KS23, W. 1!., described as
"llie within named \V. It." granted the same
lauils to trustees of a marriage sett'.onient exe-
Mteil ill IS'.'O, under which plaintiff's claimed : —
' hi, that the \V. K. who executed the deed
Kill Mould he iiresuniud to have been the grantee
I the deed of 1S04, notwithstanding recitals in
^tlier deeds, pri)iliieed by the plaintiff's as part
their ehain of title, tending to shew that the
r.uitee ol the deed of 1804 was dead liefore
IS'JO. r/io,/i/,«,« ,t III. v. Biiimtt, 22 V. P. 393.
A testator devised property to his wife, who
tiiiivoved to 1). ill fee. Afterwards 1)., and S.,
lis wife, joined in ;i deed for valuable considera-
Itiiiii, to M. and his wife, reciting that she was
|«ititled to the property as co-heiress of the tes-
'itiir. Suhseiiueiitly M, and his wife conveyed
a tnistcc for S. The plaintiff' claimed under
anil notwithstanding the erroneous recital,
*t- court belli her entitled to a conveyance.
tfo-'/or V, Murrlnm, 4 Chy. 284.
A grant conveying land to within one chain of
a river, means to within one chain of the edge of
the river, and not of the top of the bank. .Sluii-
foil v. Wimticit, 1 Q. B. 30.
In a patent the land was described as ' ' a cer-
tain parcel of land in the townshiii of Niagara,
containing by adineasurement thirty-five acres,
more or less, which said thirty-five acres of land
are butted and bounded as follows," kc. The
Ixmndaries given would embrace about seventy
acres, incluiling sevei'al lots in the town of Nia-
gara, which it was clear was not the intention of
the government: — Held, I. That the description
as in the township, (Joining first, . lust govern,
and therefore that no land could paws which was
then in the town ; 2. It being shewn that in
patents dated both before and after this the lots
claimed liy defendant were declared to be set
apart as clergy reserves, that such declaration
was conclusive as against the crown, and would
preve. ♦■. the land so appropriated from passing
to the defendant, independently of the first ob-
jection. Boi' d. Cavijilii'll V. Crooks, 9 Q. B. ()39.
A license to cut timber " fi-om lots one to
thirteen," Held, to exclude both one and thir-
teen. Haijijart v. Kernaban, 17 Q. B. 341.
\-U
; / !' \ Hi!
I I 1 I ,•
1023
DEED.
Idii
Tlie question in dispute was, what (|U!iiitity of
land was granted by tlie mtent, wliicli described
it as " beginning about eigliteen ciiains below a
small creek which empties itself into the river
'riianu'S, in lot number seventeen," thence, &e., —
there being two creeks. An old map from the
surveyor-general's oltice was ])ut in evidence,
under which the lot had evidently been granted ;
and a surveyor called for tlie defence stated tliat
the ground contended for by the idaintitt' corres-
ponded best with the old map : -Held, that as
the description conten<led for by the plaintitt'
corresponded best witli this plan, and with a
survey since maile for the purpose of tracing out
or completing parts not fully surveyed before,
lie was entitled to recover. J/orix' v. Miuira, 7
C. V. 433.
Semlde, per l)raj)er, V. J., the crown may
grant a tract of land by a sufficient description
to designate the portion meant, although the
township within which the lan<l lies has not
been surveyed and laid out into lots and conces-
sions, and the grantee will be entitled to hohl it
although a sul)se(juent survey made by authority
of tlie crown makes it by name a diU'erent lot,
or jilaees it in a different concession from that
named in the patent, or the surveyor laying it
out projects a road through it. Jh.
On the 8th January, 183(), a surveyor in coni-
pliiuiee with instructions from the government
agent, laid out a road or street on the northern
limits of the town of London, two chains wide,
a portion of which was then and had for some
time been in tlie actual possession of the Episco-
pal cliurch, to which body a patent subseijuently
and on the 18th .lanuary, 183(), was issued, grant-
ing to them idl that parcel or tract of land " on
which the Episcopal chureh now stands, and con-
taining four acres and two tenths of an .icre or
theieaoouts. " Ujion an in<lietnient for a nuisance
in stopping up the highway : — Held, that this sur-
vey, although made after the grantees had gone
into possession, must prevail against such posses-
sion. Hagarty, J ., diss. JIviiiiljui/ v. T/wQiwoi,
1 E. & A. 4-29.
In 1804, a patent is.sued to J. McG., for lot
20 in the first concession of the township of
ChatiuHU, containing 200 acres, more or less,
and described as " commencing in front on the
river Thaines, at the north-east angle of the said
lot, then N. 45" W. 58 chains, more or less, to
vit/iiii one chain of the lands granted to Hugh
Holmes," &c. In 1809, a survey of the lands
was made, the plan of which shewed a road
between the first and second c(mcessions fifty-
eight ciiains from the river, which had never
been opened however, and the lands remained
in tlic same position as in 1792, when a descrip-
tion had been issued for this lot in the name
of one AV. as running north sixty-seven and
a half chains, more or less, to a post, contain-
ing two hundred acres, nu)re or less, but no
patent had ever been completed on such descrip-
tion. McG. 's interest in this land was subse-
quently sold by the sherift" in 1811 under execu-
tion, and the conveyance was of lot twenty in
the first concession, containing two hundred
acres, more or less ; not expressing any metes
or bounds. The deed to the plaiutifF was made
iu 1843, and purported to convey the lot (twenty)
as containing two hundred acres, "bounded in
front by the river Thames ; in the rear by the
\K-
Ili:i<|.
IM.l It
Ill'L'.-'Sidli ,
allowance for road between the first mul i^.,
concessions," &c. :- -Held, reversiiiu the '^
iiieut below, tiiat tlic plaintill' was "cstriiti,
his claim to land to a space of liltv-(i:.ln /]
from the river Tlianics, and tli.it in- |j"i,i ^ ''
upon which to found an action luitiv,-
lands to the north thereof, idthnii-l, tj,;, ^
were situate at a distance greater tliiiinjiK.^i"*
from the lands granted to Holnus. .\. \\']*
J., diss, ('roll- V. Mur/iii, 2 E. A \ .[■>-,..,":
B. 485. ■ -•'
In 1792 lot seventeen in the ■'<i;i'(, ml idm, ■><.„■
of Harwich was ajipropiiated by tlif lainl iiiiir;
for the district of Hesse to ( )'!!. J[,. ||^,i
no improvenicnts, however, up tn I7114
1853 the location made to him by tin; Im;,!.
formally cancelled. In 1801 a jiatriit i
F. for lot seventeen in the finut
Harwich, which had been appnipiiatcd to um
by the land boaril about a year afttr tlair Tar
to O'H., described as coiiiiuciiciiig in tnnitiitii.
concession at the X. E. angle of tlic lot, im 4
river; fliiii ,S. Jt.V E. ,S7/ ch<uii.-i, niniv ,„'■ /,,. "
I/k' liiiuh of O'/i. ; then S. 4.") \\. ;io HiaJn^,
more or less, to lot 1(5 ; then X. 4."> W. tis cliiijn
to the river ; then ahmg tlie uatc^r's o.li;^ i„in||!
easterly to the place .>f begiiiniiii,', er,iitiiiiiim
two hundred acres, more or less. In tn tlii'
time there had been no necoiid ediice.s.viini Ihii
run. In 1803 the crown giaiiteil to (kftinlani
the rear part of the lot, ISS', aires, aiui tlit
plaintill', claiming it under tlfe iiateiit tn F
brought trespass :— Held, that as O'l!, nuvir !,■.,!
a patent or became entitled to elaiin niic, 'i\t
reference to his land was falsa ileiniuistiatin.aM
that the plaintiff was contiiied to tlie ilistiiiot ,('
80 chains mentioned in the patent to 1' f,./,/.
V. Mllkr, 27 Q. B. 41(1.
The crown in 1808 granted tlieeoiitimiatiHii,ij
lots 12 and 13 in the 1st coneessioii of (insiieU I
bj; two separate patents, describing o.uli a> m- \
taining 100 acres, more or less, ami jriviiigiiirt(i
and bounds, begiiming at a certain ilistaiuiir.iiii |
the S. E. an^de of each lot on lake Ihio. ami
extending a hxed distance north, iiotsayiiii.'iiifire I
(U- less. The front portion had been giaiitiil.it
was said, it 17!K), and it was not slieMii w lather
the line between the first and seeoiiilcoia'csjinii!
had been run in 1808, or at h liat tiiin'. Tlie
distance given would carry the land intn tie
second concession, and the defemlaiit clainiiil
the land there covered by the metes ami Umh
as against the plaintiff, who claimed the luts ;
the second concession under a later |iateiit:
Held, that only land in the liist iiiiii'essi"n |
would pass by the patents of KSOS ; for tLis.in
the absence of any proof as to the imiftssiin j
line, was evidently the intention of the crown,
and the description by metes ami bnninls luiu't |
be rejected as erroneous. W'iijlc x. Siiimiiii\
Q. B. 427.
One R., in 1829, fir.st surveyed iiart of the |
township of Plympton fronting on hike Hiin* 1
and his plan returned shewed the lot.s I'ldiitaij |
on the lake with an oblique line in rear, t'nllnmng I
the general course of the lake, Imt iid alluMMiice j
for road. Afterwards a plan of the «hiileto«n-
ship was compiled in the crown laml otlioe, fp'in j
surveys of three separate portioiLs of it, made l),v !
different surveyors. The descriptions nf the I'ts
were made from this plan, all the hits liaviM
been granted after it had been coinplet'id, m
the distances in the descriptions ooiitainedinthe |
im
imh,
10!l
3 lirst and ,„.^
'i.'1-siiiy the jiii'u.
^^■a.s rcstrii'tt.l i
''''ty-L'ij;la dijii,
lilt 1h- liad |i„ti;,
1>I1 I'l'l' tlV,sl.,l<«'
iltli'Mi.'i, tl;, .,
ltd- tliiiiniii, ;,.„_^
lllU■^. A. \Vilv«
:. •S A. .i25;:;o^
i SCCdlld (.•iiiiiosin;
l>y tile laud l„n,i
'15. Ill' liad iii;i.l.
ip tu 17!14, andiL
1 l)y tin: lidanl «,«
ii )>at(Mit isMicl t.
tVniit i'nniT>siii|i „;
iliniiiriati'd M liia |
ar alter tlieir arji:!
leiiig ill frmitoftli. 1
ot the lilt, (111 tlitj
(/.■I, iiiDiv or /.s», (,j
4:)' \V. 30cbain!,f
N. 4.VW. (ISchaiiiii
WMtof's edi;u iinrtlr
L;iiiiiiiii,', (;iiiit;uiiir,-
r loss, rp tn tliB
;i)iiil coui'i'ssiiiii lint]
anted t(i defuliilaiiil
SS|, ael-es, and tlitl
tlie ^latent t" K.J
at as O'B. iievw gull
■i\ to elaiin uni'. t!it|
sadeiMiiiistniti". aiiii
■il til tin: diataili'cn:
latent til 1\ /".t/i
I thecoiitinuatimi"!
|eessiiiii of OnslifH.
eriliing eaeli a- oi>n- 1
Iss, iiinl giving iiutt*
'ei'taiii ilistaiurlriiiii |
lU lake Hrii'. aiiij
vtli, not saying iiKW j
,ail lieeii graitfil.it
not shewn wln'tliti
il seeiiinlciina'Ssifiiis |
at what tiino. Tlit
the laiiil into tfc :
(leii'iula;;t claiiiiiil
e metes and liminili j
lelailiieil the lots iB i
[!■ a later [lati'iit ;-
lie tirst cmn.'essiin
1808; fur this, in
Is to the eiinoessi"ii
ition of the owtii,
'.s and hounds muit |
|ir;iy/i- V. .^7( (Cdrt, is I
[•veyed yM'i nf t''« 1
Lu on lake HiiMii.
fed the lilts IriintBg
lie ill rear, follnmns
|(;, Imt nil alliiwance |
,if the wliiiletoi™-
iviilaiiiliitti«,fw)
Itioiisiif it,iii'»il<''J''.
leriptimisufthcli'M
lull the lots hm
leii completed, m
Vns oontaiiiedintM i
1025
DEED.
102G
;iik <m which the
deeds were aecor.lilig to the sciUu
hn was eoii.iiilc.l. 1 lii» I'ln" shewed ii ruiid in
ir of the front hits, iind ni^ido their deiitli
Liter than in li.'s 1'1=»'- Tl'civ was H" l-roof
,f iiiv work on the grmind shewing that I., liad
pve'iru" •'"'"'■ 1"'^*''' *'''' '■''"'■ liiii^^'k^itaiilieared
his idaii : Hchl, that it was coniiiutcnt for
the .'liveinnieiit to make such idhiwiinee fur
i°i„,t ludiig iiieolisistelit with aiiv v ork mi
[he gnmiiil. 'lli-'l'l' ''l'^"' ^^'"^ '" "•■'i^'i't" yivc
etleet to the ehaiigo made liy such allowance
ti iviiiil all irregular rear hoiindiiry for such
friiiit lots ami to reconcile the id.iiis, and the
mnts for one of the front lots ami two gore lots
in rear of il, which could not all three lie curried
cit owing to a delicielicy in the land ;i limiior-
ti.ii'iitu rednetionsliouhl he made in each of such
loU //i';/i''^/ V. nril/u,,, -M) i). \i. 'Ml.
The descriiition of a lot l>y metes and liounds,
fmm the eriiwii lands deiiartnieiit. is adinissihle
in I'videiae to exidain the patent for the lot, in
which it is described only hy the innnlier and
ciiiieessiiui. /''■
In IS.'iT a patent issued for "the iiortli-
wtsterly iiuarter" of a L'OO-aere lot, the side lines
(liwlmli ran N. 4.". \V., ami S, 4.". H., (or iiorth-
vist and south-east) ; and in 1S.">!) another patent
was issued for " the S. K. !, of the N. W. V" of
tlicsame hit :--Held, that the lirst patent covered
50 ai'ivs, extending half the depth and half the
wiiitli I'f tkc "hole lot, not oO acres extemling
oin-liHiitli of the dejith and the wliidu width.
Hulil, also, that the .siihseipient patent conld not
atl'ivt the construction of the first, for the (pies-
tiiiji must he, what did the patent cover when
it was issued. Held, also, that the assignments
;,p iliv, ;es|ieetivc patentees liy the (iriginal pur-
itedfi'iin the crown of the N. \V. h of the lot,
tiiiild '
I |wteiit
On the 0th Felmiary, KSiVi, a patent issued to
.5 F., under whom the pla'iitifl' ekiiiied, for a mill
[jitv ill Owen Sound, described by metes and
Jkiuiids, Iiy which, after going '• 1 chain 70 links,
f more or less, to the top of the bank of the river,"
f it proceeded, "then south-easterly along the top
I of the hank, to the limit between park hits T)
land 4; then southerly to the southerly limit of
I tk- town plot, or park lot 1, keeping in all places
I at such a distance inland from the river as will
I allow of 13 feet head of water bein^ raised at
|thi' mill,' &u. It then crossed the nver " to a
liKiiiit to which the water will be backed by
I beiiij; raised 13 feet, as before mentioned, at the
I mill, ' and then ran northwardly eastwardly, and
inorthwestwanlly (being the general directions of
Ithe river) "keeping always, (tu on the other siilc
lilf thr rirri; at such a distance inland therefrom
ita ensures to the mill owner the privilege of
Jraising 13 feet head water as aforesaid, to the
■place of liegiuniug. " A well-defined bank of the
Ttiier alwut 30 feet above the water extemled
Ifrum where the line first mentioned struck the
Itopof the hank to the limit between lots 4 and
Is, and then the hank died away into a Bat : —
iHelil, that under this patent the liii.it of the
Ilaiiil granted was the top of the bank as far as
Ithe limit lietweeu park lots 4 and 5, not the line
lfom;eil by the 13 feet head of water. Hurrinon
|t. fi'Mf, 34 Q, B. 110.
On the I4th of February, 1852, a patent issued
1 F. (pi-esumably the same person as the paten-
65
\V,
lie ivsiirtedto to aid in interpreting the
DarU v. Mrl'lm-.tun, 3.S (i. B. 37().
tee of the mill site) for park lot.s 4 and .', The
description of these lots by metes and bounds
was in part "commencing where a post li.is been
planted in the N. ^^', angle of park lot ."> ; then
S'. S'J 4."i' 1",., !) chains 'M links, more nr less, to
the water's edge of the mill dam in the mill-site
block, in the saiil town aforesa il, by l.'l feit head
of water being raised at the mill : then southerly
following the water's edge thus fornied," &e, : -
Held, that tlu' lirst patent coiild not be con-
tridled by the second ; and the Latter being to
the lirst piitcnti'c, he thus aeiiiiired the whole
land in dispute, and there was no reason why
the description in his o-':i deed, which was
according to the lirst patent, should be (pialitied
by the second. Ih.
In 17!Mi a patent issued to It. for .")2S acres,
more or less, " being composed of lots Kiaiid 17,
front eoneession, lt> and 17, second coiicesssion.
and 17, third eoneession, with thi' broken fronts
of 1() and 17 on Hurlington liay, in the town-
shiji of I'artoii, butted and bouiuled as follows :
beginning at the X. W. angle of lot 1.") on lUir-
lingtoii Hav ; thence S. IS \V. 1 1."> chains ; then
'S.li' \\'.'-l\ chains ; then S. IS \V. .■)! chains ;
then X. 72 W. •_>() chains : then X. IS' K, to
Hurlington Hay ; then easterly along the bay to
the phice of beginning. Martoii is on the south
shore of Hurlington Hay, and the lota number
from the east. At the v,i;;t side of lot I.") the
shore turns suddenly to the south, for some dis-
tance, so that the lirokeu front of lots 1(1 and 17
are on a line with what to the eastward is the
•ii-st concession, and these broken I'roiits contain
together only '28 acres. In the description for
this patent in the department the lots were
called l(i and 17, "front or lirst concession,"
The tiuestioii was, whether lot l(i in the third
concession projier, passed by this grant. It was
shewn that the goveriiiiieiit had never asserted
any right to it ; and the entries in books and
plans 111 the crown lands department shewed
that it had always been assumed to have lieen
granted to It. The descriiitions for patent, and
the patents of the surrounding lots, agreed with
this view ; the number of acres mentioned, MS,
wouhl not otherwise be covered by the grant ;
and It., and those claiming under him, had held
p(»ssession for more than forty years. It was
shewn, also, that the X. \V, angle of lot 1."), on
the bay, was about 14 chains X. of the conces-
sion road in front of the second concession pro-
per. The defendant in ejectment, 11. 's heir-at-
law, contended that the description excluded
this lot, so that the title was still in the crown,
and relied, among other things, upon certain old
pilans from the department, which the plaintifl's
asserted to \y^ incorrect : Held, that the lot
passed by the piatent. Jii'<ii}t v. Ni'i/nnlils, 34 Q.
B. 174.
Remarks a.s to the nature of the evidence ad-
missible, — documentary eviilenee, plans, conduct
of the parties, kc, — in order to ascertain what
land was intended to p.-vss by a patent. Ih.
Qua're, whether the defendant, a mere stran-
ger, eouhl set up the title in the erown as against
the plaintiffs' possession for forty years, with the
privity of the crown. Semble, that at all events
the plaintiffs could have maintained trespass
against him. lb.
Held, under the facts and evidence set out in
this case, that the plaintiff, claiming under a
f
1
1
I
■'ii
J
tl
i
i
!
I
i ill
I
il
I ill
n
1
t
' ■
102/
DEED.
with royard tn tin; deaorijition of tlic
Siii/t/ir V. I'romlfont, 15 (,). H. ■>;(•.'.
patent for part of lot '20, in ooi\oe8Hion A. "no-
tonling to a jilan of survi'V by provincial land
snrvi'j-or O'H., dati'il <in tin- !tth .laniiary, IS(iO,
<tf rt'i'iinl in the iTovvii lamls <k'|)artnH"nt," was
conlini'cl to and jiovcrni'd liy tlif plan mi'iitioni'd,
and could not claim according; to the legal limits
of the lot liy tlu^ original survey. <>' /hniin // v.
Til rutin, ,'),") (^(. I!. ISI. See Miiliniii/ v. Ctiiii/)-
hill, 15 (^ 15. ;i!Ui.
((tiuere, whether a liouudarv intended l>y a
grant ironi flic crown might lie varied or de-
parteil I'roni liy »ulisci|uent aits ami aei|uiesccnee
of parties inleri'stiMJ in the position of such hnun-
dary, wlio would Ik' accordingly hound. Ilnrl
v. ikiirii, 10 (liy. iMli.
'['Ill' i|Ui stioii was as to the true lioundary line
lutwccu lots •_'(■> and -~ in the sixth concession of
W'ainllcct, which the plaintill' idiitended should
111' ten chains furthei' east than where the difcli-
dant asserted it slionhl hi'. The [latent under
uliich he .lefcndant claimed descrihed hit' laml piud hy the main road, nieaiiiiii;
I'lVlllls.i
An agreement to sell and convey, or uilot.j,,^
"one acre of land, lieing part of the iiiirth., Jj
iiuarter of lot l!(, in the seventh eunccsMnn ,i
harlingtoii," is not void for nncertaiiitv. Iiiiiti
purchaser may elect what acre lie \ii|l i^]
('iiiiniiiiitjK v. Mi'l.iirldin, l(i (j>. IS. ll'ji;.
A surveyor's deed to plaintill graiitcil Jau,]
heing " the pnlilic highway or mad leailin!,,,,,^'
Wellington to the carrying plaie,",iii,l .K,^.,.,!,,:
it thus, " coinnieiu'ing at the hase liiK' |||||„|,
of lot No. 7, then on a north w oh rjv min,'
along the north-easterly edge till it ii'itii,,.,",^
the limits lietwecn lot No. Sand !) ; tli(iur,ii|it|,
•Jt) cast to the siiutliern liniit^ of said r,,,,,|.
thence along the south westerly cdije iit\aiiliiM
road, till it intersects the hasc hu,. ii, ii-|,||t,.j
lot No. 7 ; thence along said line to tlic \■\■M^:„\
hciiinniii),'," with the exception nf wliatis„aii.
y till' utvf I
cpiarter sessions road, which travdMil thf ,
roail on defendant's lot No. S. Seiiilili, tlnit tl I
descriiitioii was too uncertain to imiviv
thing. Cli(/iji v. //aiijli/, \'.\ij. U. 'M.
as coniMuncing at the S. W. angle of his lot, I'd,
and then running north " oil chains, more or
less, to the lands granted to Ii." It was shewn
that taking the defendant's iioint of eominenee-
luent this course would not reach I'l.'s land, and ....
that commencing at the point contended for hv j . ' '"r """'^^^''>' <hietnne in intcrpivtiii-thunuai,.
the plaintitl it would reach H.'s land : Held, l". '"« "' '^ «'''"'* "''. "t''^''' i"^tiuiiiri,t. is tu.usM.
That upon the evidence stated in the case -the i ''"» the .surroiin.lmg lacts at the time the sunt
original instructions to the surveyors, the held ^y-"* nuide. In ejectment lor part of U 41 in
notes, character of the land, &c. - the defendant t''^' '."'''t concession ot the towusinp ol C.kli.s.
was right in his contention ; -J. That the deserij)- f^''"' '* 'Vl'l'i'/^'ed that the patentee .n tlu' «|i,.le
tionin tlie].atentumlerwhichdefendantderived: "t «'''">ted t.i the plaintill '•all tiiat |iaiv(|„i
title was not sullieient alone to outweigh all the | ''V':! '■■"imiKinly known by part of l,,t M, i,„,t
other f.icts in his fav.iur ; and that under the [ «'^""'«,t"^' t""''"*'"!' '"' concession) ,nntainiii^-<)
circumst.iiices the words, " to the lamls grante.l ' "^''^'f' desenhing it hy houudarus w lii, li ,,.rri<.
to Ii.," .shouhl rather he rejected. //„,„.,';• v. ; J'"'"'^'' V.'^M''*-' "'^ ""
S„l„„n-h,, Ul Chy. 333. ' '"* "" « '"c'» '* ^*''«
See Mtiiiiiiiii/v. Dm d. /•>/'</"•«"», H. T. 2 Viet.
p. I();fl ; Mil/ir V. I'niiiii,; 3 O. S. 4--',-), p. I0;i4 ;
Dui d. Miirritii v. Sntilli, 5 (,). Ji. 'JlV., p. lOi'!) ;
/>;.-.,„ V. Mi'L'iiiKihnn, I K. & A. 370, p. lOi'it ;
Carfirrh/lit \. Iht'l,,,; 1'.) Q. H. I'lO, p. lOl'lt; Ihr
V. Xtihn,, •_>! (i. \\. 30!», p. 1030 ; J/ti„/,rsi„i v.
//iii-ii.-. 10 ('. 1'. ,374, p. 1031.
(b) I'licirlitiiili/.
"Where, in ejectment, the deed under which
the lessor of the plaintill" claimed, was in several
parts illegible, and contained no deseriptitui by
which the part of the lot intended to be con-
veyed coiihl be certainly ascertained, and there
was strong evidence that the deed was made to
defeat creditors, the court set aside a verdict
for the plaintitl'. Dm- d. McDonald v. Mc-
Doniilil, '2 y. H. •J(i7.
^\'^lere land is so described by its local abut-
ments as to enable any one to tiiitl it with cer-
tainty, it is unnecessary to state further in what
lot in the township the land lies. If, therefore,
the land so described is stated to be part of lot
42, when it is in reality part of lot 45, the deed
is nevertheless certain and good. Uui' d. J\'ot-
man v. MvDomtId, 5 Q. B. 321.
Defendant agreed to sell to plaintiff certain
buildings specified, "with the land which they
oceupj', with the whole of the dam and water
privilege." Quwre, per Robinson, C. J., as to
the effect of tlie uncertainty in the agreement
loiidcd with the 50 acres oil' the nar \\a\x di tfe
IS proved he lived at tlii.latr i
j of the deed, being also himself desci-ilioi! m the
I deed as of the same jilace. The graiitci' with I
: her husband thereujion went into ll(^ss^■^^i.l||(li [
1 that land and there was no I'vidciuc that
, grantor owned any other lot 41. llcM, that the I
words in the ileed, with the snriiiiiiiiliiij; la^I^,
[ together with what followed iiiuuciliatuK afti-r
i its execution, were sullieient to shew with w-
! sonable certainty what land passed liy tiii'.luil;
i and that evidence of such facts was inninrly
received at the trial. y<iliiii v. l-'ux, ITiC. \'.yi.
The mortgage under which tlic iilaiiitils 1
claimed, executed in IStil, dcseiiln'il tlic laiiJ;.i
lot 5, in the 4th conecssiou of Flos, iniitaiiiiiij i
200 acres, " save and except ,'{5 acivs sdhiiJI
the east side of saitl lot 5 to 1,. fur taxi's. " L [
had Ixuight 35 acres in 1S5S. Tlie I'li'titiatini
purchase then given to him hy the slurilf liali
diagram sketehetl on it, shewiiii; tlii'^ fiiWlhe
east 35 acres, and the said iliagram was I'litlis
certilieate and deed given in ISii,"i ami IStiilto
one J., who purchased the reiuaiiiiiii; l(i'i .km
for taxes, and under whom thciilaiiitillsohiimril:
— Helil, that the tlescriptioii in the iiicirli;agi w j
suHicient, the exception being tliu.s ih'wh ile- 1
fined. Tin' Edhiliunih L'tfr vl»'//-i/«c( ('".
Fi'i-ijusun, 32 (,>. H. 253.
Where a contract was for the sale nt lot IS, I
"and as much of lot 17 as slimihl I'l'ijuiri' to !« I
Hooded for the purpose of working a mill on lot j
IG :"— Held, that as the (pmntity (if liiml oii Im |
17, could be ascertained by a jury erthe iiiasttr, j
there was not such an uncertainty as to mile j
the contract void i—Hvoky. Mcijtmii, iChy.49(l. j
1029
DEED.
1030
I «.iv.Ttisiiiii liiii'ls fur siilo for tiixcs tlii.v
!"^'!.' 1^, j„,.tl,or siu'i'iticMtiiiii of tin looiility or
'iiotiirt- ,, ,
lliM, tliiit
in^^u;li^•il^llt. :iiiil the sali
(f) liiC'niKi-''' ii' /'■ "'■rl/lfi'lllM,
il ,s .l.scritif'l i.'fUfrally an jiart of lot k iiiid
i,"_,j,jli,. ,Kts(n|>tion aftiTWiirds •i'xwn chMrly
i!'.l,nc>-' a iwrt ol lot X tiio siuvilu' will -ovoni.
I IVMTtiwn iu 1S;!S -raute,l a irir.'d of liiml as
LSto^u''^^. i'^'"'« tho i:. iot iot:!o ...
L ;tli J'diiLvssio.i of All>io;i, ;,'.v.iij' tlif .in'tf.s
iKiiiiiiUas (.■oniii.i'iii'iiig :it till' S. \]. aii;,'l>' of
voir ir I'. - "' tliL' lot. (such luih.t ^l•ill^'
Lvii ami uii'ii^l'iit.'il, a...l tln^ c.-own at tho
o'.'iiiiii; •>" ^''^' ''""^ '" '"''■'^ co.li'i'ssioi.
levoiulthat'loti : tlioi. o.i a omi-s,' N. t,'. -l.')' \V.
U'hiiiis '"'"'' '"' ''■"■'*' ''" ''"' """^^''""'>' ''"'
1 nil tlio iioi'tla'n. liou.icla.-y of thi' lowiisliiii,
SiK'hwas ,ilso wi'U k.iowii a.icl asi'i'i'tii. It'll) :
iS, TV W. .''■'' ill;""-''. •''** liiiivs, ii.o.'i' or less,
jtlii' all"^>ai"'i' lor .-oail liotwi'i'.i lots MO a. id
I'theuS. H!l ;fO' \V. 1 fl.aii. oO lii.ks, ...oi-c or
J to tlu -iiitiv of the eoiieessioii, iVc. ; a..d i.i
Oaiiiitlier L;.Miit \v,is ...adoof lot 'M ii. the 7th
nc.'sjiiin. ;>^ I'oi.taii.j,' 'M aeivs, without any
Miiiti^n. Ill the original si.rvi'V the allow-
ci„rrii:iin»'t\veei. lots .SO a.. d .'{I had never
ill run thi-migli. or any jiosts jilanted on the
Mrnitlu' lots, although iio.sts had lieen iilanted
Ehi 'P'lit :uii,'les, and hv jiroil.ieini; the line as
ilietwivn lots HO anil ,S1 in the (ith eo.i.'essio..,
fcilistaiKY of ;!.'• ehih.s a.id oO li.iUs, .is given
Itlif lute.it, along tho allowa.n'e for i-oad o.i
4 iiiirtlicrly side of the townshii), would lie
Btrtillv lesseiioil. The owner of lot ,'{|, t.eat-
[\\t iicrsoii in iiossession of lot .'10 us a tres-
icr, ill resiiect of all the land not i..el.iileil
fcmsiKli limits, liroi.gl.ttresi>ass against hi... ;
„.... ri'vtrsiiig the iudgii.e..t helow, that the
iiti'i;, HiuliT the intent of IS.SS, in the aliseiiee
_liiyi«istto .nark the allowanee for .•oad, was
litlwltotl.e (nil ilista..ee of .S,") ehai..s and .")0
„ as spteitioil in the grant, without any
mice to the jiosts [ilanted at the front angles
Billot. Mai iulay. ('. .1., Ksten and S] r.igge,
,iliss. Dimii v. Mtl.'iiiijliiiii, I !•;, I'i A.
leorowniu 1S()4 g.'anted lots IS and lit i.i
i.ftli co.n-cssio.i of 1'". eo..taiiiing 'HI aeres,
! iir li'ss, :uul him.iiled as follows: "eo.n-
Iciiig in front of the said eoneessioi. at the .•>.
iDgt of the sail! lot I!) ; llini X . ■!/ ' II'. *;.;
|iii»; tliiM. S. ,V,t W. ,'18 ehah.s, mo.'e or less,
jlie allowance for road between lots IS and
itliiii S. SI K. ().") chains, more or less, to the
(raiwe for road i;. f.iu.t of the said (ith con-
liim; then N. '>'.) H. ."{S chains, .nore or less,
; place of liegiiu.iiig : -Held, to include all
bts iSa.iil 19, not .nerely that part extend-
Ho oliaius Iwek I'ro.n tho front or south end.
prhjhi V. Iklloi; 10 Q. B. 210.
pe cwwii in IS.'IG, granted to S. , under whom
wlawts okimetl "200 acres, more or less, in
lowiishipof Colchfister, being lot41, in front
"ike Enc, m the said township," Had de-
lit as "commencing in front, on lake
Krie, at the S. E. ii.igle of the said lot ; thence
N. 17.' ehai.is," &e. I.i IS.'IO a g.-ant issued to
H. for the rear parts of lot 41. 42, and 4:i, in
the fi'ont or ti.'st eo. .cession of Colchester, " de-
sc.'ilied as coin.i.eiici..i,' in the li.nit liet\vec.. lots
40 and 41, at a distince of 17.") chains from tl.i!
S. K. a..gle of the sdd lot 41 ; and the., goi.ig
north : -lli'lil. that the llrst grant n.i.st lie t ikcn
to i..cl\.de the whole of lot 41, notwitlistaniling
the )) irtic.ila.' ih^siri|)tion, and the.-rfo.'i' that
..otl.ing eo..ld |iass liy the second intent. //(C
V. Xiiliui, -Jl <^ I!. :«')!•.
,1. A., l.y deed, diitcd •J.'iid 111 .lan.iary, ISIO,
conveyed to the |il li.itilV lots l:tl, 1, '{.'>. and l.'lli,
in the tlii.d co.iccssioii of Si.idwich, adding this
: descriptio.i, '-which said lots wen- patented to
1 the said .1. A., hearing date the l.->tl. of March,
, ISHli, and which was s.irveyed a.id laid oil liy
.1. A. Wilkiiiso.., l>. r. .•>;., ol. -..Mst of ,la..uai-y.
IS4():" -Meld, tl.at the plai..till' was .lot liouiid
liy such survey, Imt could i-lai.ii the whole of lot
I;{1), as laid out liy govern. .ic.t. .^fiilmiiii v.
ctini'i"", 1 .■•<.'• l''.':i'."'-
I'^ject.nent for part of the M. \ of lot !)."). 'Pho
' mortgage under which the dcii-iidaiits clain.ed
descrihed the land as " part (>;' h.-oken lot No. 04,
and Nos. 0.")aiiil !'(>," tintt.'d a.id hounded as fol-
lows : "lot 01, con...ienei.igat the eastern angle of
said lot, "itc. The n.ctes an 1 ho.iiids given would
cover the whole of the lot, or part of O.'l a..d part
of 04, hut it did .lot appear f.'o... then, which
: was i.. tended, except tl.at the last eonise was
, "to thoplaceof liegi....i..g ('" lot 04. "--"Also lot
Oli, roiiiiii' iif'Dii/ :> c/iiiiii" mill .'f'l /(»/•■'()// I' foiirni'
tS. .'f.'i ir. frniii llii- liiirtlii rhi mi'jli III' sithl hit"
j and rnn.ii.ig westerly to the dista..ce of (> el.ai..a
.■")0 li.iks lieyond the li...it lietwee.i lots 0."> a.id
01!, heii.g a description in fact of parts of 0."> a.id
; 0(>. "Also lot 0(!," ciu..nienci..g, itc, givi.ig
j houndaries to inch.de only that part of Oli .lot
I covered by the previous description. The p.atent
! to A., u.iiler who... defe..ili..t clai.i.cd, w.is put
in, coveri.ig lots 0.">, Oti, a.id the W. A of 04 ; a.id
it was admitted tl.at he had conveyed to the
n.ortgagoi'. 15y coni..ieiici.ig at the e astern angle
! of the W. .;, of 04, instead of at that angle of
the whole lot, tlie ilesi-riptio..s given wouhl
, cover this land, and the dist i.ices given for tho
con.-ses fnu.i north to south would then agree
ve.'y closely with the meis.ircment o.i the
ground, but would be incorrect otherwise. Thco
was no evidence that the .nortgigor ow..eil a..y
part of 04 b.it the west half : Held, that by tho
ge.ieral description the whole of lot 0.") passed ;
a..d (revei-sing the j.idgme.it below) tl.at the
particular descriptio.i, being clearly inaeeurate
in ma.iy respects, could ..ot control the p.wiiuis
g.'a..t, so as to exclude the p irt of tl.at lot .lot
ileseribed. Semble, however, tl.at had the de-
scription by ...etes a.id bounds bee.i consistent
with itself, .-.-..d exclude<l chvirly a part of 0."),
the whide wo.ihl still have passed by the pre-
I vioua words. Jiuiiii'-tiiii v. MrVnlhuii, IS t^. B.
44."); Mi-CiiHiiiii v. Wilsnu, 17 (I B. ,-)7'-'.
! In ejectment brought to recover possession of
I eertain land, called part of '1'2 in the 8th cou-
! cession of Haniiltim, and described as extending
j to the edge ')f Rice Lake, it was proved that
I there was a concession in the original survey of
! tho township, (called the 9th) between the 8th,
I to the north thereof, and Bice I.iake. The plain-
\ tiff proved that the patent under wliieli he
I traced title described the 8tli concession oa ex-
1 ■ 'i
r 1
i
I
;
l:
HI; «fV.
:^A
1
.xii.d
lO-H
DEED.
1«!!
teniliii(< to tho Itivnk of Hiee fjiikc, but the <let>(l
to liiiiim'lf only statuil tlu' lot without giving
liu'tcs luiil lioiinils : lli'M, that altlioiigii the
Bjii'i-ilii' ik'«t'ri|)tioii in the ))iit('iit, iunl not thf
j^tt'iiiMiil cksi'riiition, woiilil prolKiliiy j-'ovorn, yet
tin' iiliintill' having in liis notict' ot tith' only
chiinii'd lot '-'"J in the Stii concission, whercaM tin.'
j(art cMhtrndi'il t'oc was in thu Mth coiu'i'ssion,
(k'f(.'niliint was ontitlfd to a vcnliit. I/i inl' /'■■«iii
V. //.»/•/•;.«, 10 V. V. -Mi.
A niortgajs'c dcHoiilH'il the Iunl as all tliosu
certain |iaii'i'ls of land situ iti' in the townslii|i
of N., I'ontaining '2\ at'ics, nioic or less, ln^in^;
coiuposcil of jiart ot lot -H, in the .">tli t'onuussion
of tht^said towushipof N'., particularly dcscrilu'd
in till' deed of convi'yanci' lin'rt'of made ln'twucn,
&i'. 'riiis dt'i'd rcfi'rrt'd to was for 'J\ ai'ri's, jiart
of lot •_*.'{, in thu 4th I'oui'cssion, and of lot -.'1 in
tho oth t'out'L'ssioii, dcHcriliinj; the iiart in each
t'oncossioii sfjiarati'Iy hy nii'tos and iiounds, that
in till' ")th containing loss than half an acre ;
Held, tiiat till.' niortyayo i 'iided only the land
in the oth eoneession. Fi ri'i v. Wiiiili/, '20 {.).
B. (144.
IMaintilV elainied nnch r a deed from on'.! ('. of
"all that ]iarei'l of land heing eonipoHecJ of lot
2(), as laid down uiioii a )ilan of lots laid out l>y
(1. T. aiid W. '\\, lieiiig on the west side of <i.
street in the town of Helleville, desurilied as
follows," adding a deseriiption hy inctes and
Ixmnds, Aviiieh left a small strijt at tlu^ south end
of the lot uncovered : Held, that the whole lot
passed, and that the description curtailing its
si/e sliould he rejected as falsa demonstratio.
Held, also, that evidence of what took plaeu
lietweeu the parties when ( '. afterwards con-
veyed the small strip to defendant, and (is to
defendant's possession thereunder, and the accjui-
escence therein of the ]ier»on through wlumi
idaintitl's claimed, ite. , was projierly rejected.
Oilliii it ii.r. v. I [mines, .SH Q. H. olt!. See J/ai/iii'ii
V. dil/ni, 21 t'hy.'ir..
Held, the general descrijitioii heing wholly
insutlieient, that the jiarticular descriiition hy
metes and hounds which tollowed, not being a
falsa demonstratio added to a complete descrip-
tion, but an entire description in itself , governed.
Jfaii V. Biiicii, 10 Chy. 2t>tl.
See. also, Doe Ki'dfiiu/ v. U'l/mit, (i (>. S. .S14,
p. l()-_»-J ; />(»' X(,tw'i,i V. Mrlh.milil, .5 Q. H.3-M,
p. U)l.'7 ; /->«.( Cinii/ih.!/ v. Crooks, •) I.}. B. ()30,
p. 10'_'2 ; Croir V. Miir/iii, "J K. & A. 4-_'.-), p. 1024 ;
IVh/lr V. Sfcinirl, 28 i). \i. 427, p. 1024.
Otiitr Citscs. ]- Where the niiniberof iieres meu-
titnied ill a patent does not corivspoiul with tho I
quantity of land according to tho description in |
the grant, the description will control. Miniiunij \
V. Doc A. Firijiisson, H. T. 2 N'ict. '
Where in a deed a, certain (juantity of land, and
half of a saw-mill thereon erected, were conveyed,
and the descriiition of the premises covered the
whole site of the mill :--Held, that the vendee
was entitled to only one-half of the mill. Doe
d. Jlillfi-v. Dixon, 4 0. S. 101.
A suri'endci'ed to the crown in eonsiileratiou of
fGSC) 53., "all that parcel of laud overflowed
and covered with water, being nnd composed of
lots 37, 38, 39, in the tirst concession of the
township of Kingston, containing by admeasure-
ment 4()2 acres more or less, and more particu-
larly ilescribod
annexed, to the
111
intent
the idan
at
Id,
tlia
nu.uii rj, I
, . , *'"' ''■'I'l U.l tol
premises covcii'd with water sIu.mIiI fniwr
vested in His .Majesty," ite. Tlieiv \v;i, ativki f
to the decil a plan Verilied by one Hinki'. the
V4'yor who made it, ami eertilied hy him il,
"i do hereliy certify that the ali.ivi. iii;i;;r;i|,'
ilra'Mi from actual survey, and in aitu.ij u '
daiue \\ith the deed lield by tlic
that tlieic are 4ti2 acres Iti riunU, |i(
covered with the waters of the ||i,|,
Across tile land froni oiu' side tn tlie nth
ilrawii an irregular line, exliiliitiui; i,], (i,,,
siile, (which was the ficint einj ,,\ tlir j.itM u
4(»2 acres siirrendere<l to the :;eviiniiuiit
being eipvel'ed by the overtlow iii^- ,,i' (1,^, ,.i| .
anil on the otiu'r side, or in ii .ir nf tlii.s lin,. |ii
acres, which Wiis marked " laud." .Viurwjf)
A. conveyed to 15. " all those leitain imuli,/
land in the town-<liiii of Kingstmi. aiulluin.;!,
rear jiarts of lots ',\~, ',\S, and ,'V,i, (as laiil.L.M'i
a certain plan drawn liy Mr. liiirki tlnMinvi r
in the lifth I'oiiecssion of the tow ll.^l^ll ,,| Kir
ston, and by the said IS. stated tu imitain 1 '
acres." The land siirienileied tn tln' n.i
had been paid for to .'». at a piiie pciaiTi',
suniing it to contiin 4(12 acres, ai'imiiin ■
Ihiikc's survey; but it afteiHar.ls tuiiit.f,
that the plan did not corrcspciiid with tlii
tho survey being extremely iiiacrmiitc, firti
there was not as much land enveieil \vith«,ii
as the plans represented by It! anvs ; Hi
that the deed made to 15. carried mily siiihl;
(\'2^\ acres, I as upon the scale of iiiViwmiui
uiioii which the plan was frinnil iunwl ti
area in rear of the irregular line cll■;l«■|lal^l
the lots, without regard to the fact "I wliiti.,
tion of the lots was actually eoverei! withwatei
and that the whole 4(»2 acres had, uii.kr tl
deed of surrender, vested in the cmwii. Jl.ik
son, ('. .1., diss. Dili d. (li/ili rslnn y, K'
3 Q. H. 402.
The defendant agreed, under seal, witht
idaintitf" to pay them t'27.") by a ceitiiiii iljv.
"the south lOi) acres of lot l.'i in the 7th.
sion of Norwich, beginning at the S. K. i
and run by the surveyor ItK) aeiv.'i exaitly:
Held, upon the facts stated in the ca.ie. liu
under these words defendant was ciitith'! ftl
tract as "run by the siirveyur," tii.it Kinjil
accordance with the substance nf tlieaiirwM
and the latter words being the iiriiiiiinl im
of the description, not the wniils, "tlio
100 acres." Juiiur v. Colliiinn, 11 t^>. Ii. (Bl
A conveyed to B. all ai.d siiii;iil;ii' thiwbJj
and premises, with the appintcniiiiirs.
at Point Iroipiois Canal, in the tmraski
Matilda, being composed of the whiiti, it«
houses, and appiirtcnaneea built mi ]i,irt nitl
east half of lot 24, in the lirst cuiu't's^iiinnftl
s.aid township, south of said I'nint Iniin
(\anal, commonly known as Canii.iii's «!,«!;-
Held, that by such deed all the luvmisos kin»J
as Carman's wharf would pass t" li.. alti:'*
jtartof said wharf was in fact Imiit inin'nti^
lot 2.3. Ciirmmi v. Molsoii, 5 C. 1'. r.'4.
When the description in a dceil which '
supposed to contain half a lot, in givinsw^
and bounds, stated as a nieiusureiiioiitWclu
" l)eing half the length of the lot," iis the W
conveyed :— Held, tliat it was iieccjs,inji""
grantee to prove the whole lot coutainw s
mi
DEED.
W.H
, i,)^,|, ,,i,» iinm front to iv.ir. to I'lititle him j
rivifrt^itir .iiuuitity. for tli.' i.ro.liu'tion t.f
£1^ f».n iloiie woiil.l I'lititK- liiiii to 40 I'liaiim
yy, Viw hi-ini V. />(•<'*•'■ '.' I • I • •»««•
L, "I'ltiiNV- '1". r.'O lU'ri's of tlic H.mlh p.irt of
■I'niiii tti<' -i>'l foiioftMioii of ('iinlioron).'li. <lt-
I nl'miu' >t '"V ""'*'''* "'"' '""""'''• '" ^'••H'^'''.
r\.. \Y ■(• ;„„1 wifiM'oiivcyiMl to till' ili'fi'inl.uit
Ij t' till' soiitlurly I'iirt .if lot No. •.*. in tlic
II I ,„iav>isioIl of ('illll'oroll>,'ll. "wliicli siuil
UuX'rIv l""-^ "•'*'* ^"''' '•>• ''• "• *;' ^^'.r V
VlyMv^^'hnl .1. T. an,l wif. counvv...! to I H.
Itlu.,„.rtliti'':"i-'''* "• t'"' '""'tl"''I.V l'-"'t\'f ^,"-
II jii till' -ml foiUfH-xioii of (':iiil.orou^;li, <U-
l.'..;i„,l iiH follows; "uliu'h siii.l .s.mtlurly part
K M^•^^^■l^>^ i{..m..i i.v tiu..sa.a w.
ir'uav'''l '''■'■■''• l.v .k...l." *■•. T. II. an.l
Kil.o'm''^*'' t" ""^' ^'- iii.lo^'tMa.T.'.sot tluv
Umtlurlv i'art of lot No. <1. >" ti..- I'u.l co,k...s.
Bull i>l CaiilKiiougii, I'y nR'to.s iiiKl hoiiiiils, iviiil
muhuliMi;. " ''"■ *'"'^' '"^''"■''' ""' ''""'" '"■'f^''"''l'.v
ilillivW. '!'• '"•'• '■ '""^ '•>' ■'• '".■ ^" "• •^'- I
,,,f^;i into piLssi's.-ioii iinil tk'iiiist'il for one 1
,,.,it"tlii' pliUiititV l>.. wild I'liti'rod, and l.ciiii,' :
iHiirUa I'V .Ifft'uilaiits. lu'ouKht tills iU'tioii to |
Meiuvir iHisiossion. It wii« .'ulinitted there was
Iipnijlr Hi'il. the ik'si-riiption of lot No. 1' heing
ilsi.ltiinmatnvtio, iiiul it iii)iieariiiy in eviileiico
utR dill iiiiivfy the south part <if lot No. (i, [
theimU'imiTssi'iin of Cauhorough, to ^y• T.,
iilliv n'ji'ctiiiii the words "No. •-'," siitlieient I
■nwiiiiil ti> shJ\v that (>."> aeres of No. (> were ;
invivni therefore the plaintitl" was entitled to ,
ow. Dohiiv. Tire tt III., 11 C. I". 2H!t. I
J HtU, that upon the lease and a.s.siyninent, as ;
Lout ill the (lecliiration in this eaise, tlieri' was
IDtliiii" t(i sustain the defence relieil on, that the |
„,<W!isiiiteuiledtoinelude land on I'' roiit street, ,
1 lln' L'itv of Toronto, for Front street was not
Kntiiimil ill either, except in defendants' eove-
«nt, wliii'o it must he treated as merely a falsa
taionstratio of what had hcen already clearly
\^nM. Tiilliol V. NosMii it III., •_•;< t). 15. 170.
■ Wliiw laiul was descriheil as commencing at
[Hist (lUiiteil 4 chains and 'iO links from the
. K. Mijjle of a lot : — Held, that the post (the
sistoiioe ;uul position of which were satisfacto-
Dvestiililisliedl was the point of commencement,
fciigli its distance from the true N. K. angle
; iimurately given. Jlitrr.i v. Ihiriilsmi, -JC)
, B. Ml.
. A iltscription of laud in a tleed, .-ifter running
naiKiint two oliaiiia from a line with the east
Ide of the Port C'olhorne guard lock, on the
Fellaiii
jegret'
id oiuial, proceeded; "thence S. half a
K. i,') cli;uii9, more or less, always at a
istance of two chains from a line with the east
ide of s,iid wiard lock, to the northern limit of
ill lot 2",' thence, &c. The ccmrse slnmld
^ve been north instead of south, and the etleet
it as written was to go away from the
^rthcrn limit of the lot, ami exclude the land
i|ia'8tion : -Held, that the ciuirse might lie
Jitt'ti'il, and a line two chains from the east
11' "f the kick he .idopted as the course to be
ktn in order to reach the northern limit of the
l''n-imriifi„i) i,f till' Coiiiitii iif Wilkiml v.
|/i' lUial, mill Lih' Hiinm N. iV. Cn. 30 Q.
u:.
(d) h'ri'li nri /" /■'.ii'liiiii,
Where, in trespass for iiitting fimher, the
(|ne«tion was, in wliicii of two townships tliero
was an allowance for mad, and the grants from
the crown not lieiiig very explicit, tiie plaint id'
endeavoured to sujiport liis consti iictioli of thu
grant liy pared e\ ideiici', « liicli was relmttcd liy
the defend.int hy |iarid testimony also, and the
jury found for tlu' defendant the court ludd
such liiiiling right, ;nid that parol evidence u as
admissilde. .)//7A r v. I'lilimi- ii ul., 'A O. S. 4'_'.'>.
Tresjiass to try title to lands lying ndjaeent to
the rivi'r llniiiher, and occasionally ovirlloweil
diirini; freshets. The defendant's deed y:\r him
the lied of the river, and two rods lnyoii.l "high
water mark " on liotli siilcs of it. The evidenci;
was coiillicting as to tln' position of posts men-
tinned in the deed, [and defendant c niitciidcd that
he was entitled to two rods iM'yoml the highest
point to whii'h the water of the river ever rose,
including the lainls in oiiestioii. A lioiol con-
taining the agreement liet\(ccii the parties, in
pursuance of w liicli the eoiiveyainc appeared to
have heeii made, dcliiieil " hi;;li water mark" to
lie "where the water has already, or may here-
after, lie Mowed for mill conveniences or other
machinery :" Held, that the language of the
di'ed was explained liy the lioiid, and that high
water mark was the liiu> to « hi. li the water was
(lowed for the purimsis therein mentioned.
ili'iiliniiii' \. /Iriiini. I'JC. I'. 4IS.
Pefeiidaiit Icaseil to ]ilaintilV a lot of land,
"known as the park, in front of I )eiiisoii ter-
race residence, ami to emhraee all the land from
i the carriage drive in front of the house to Dun-
das street on the south, /u In liiniiiilnl uii the
iiiM III/ III! i/iirili II j'l iii'r It/ iiiii iilil rnftitiji, and
on the west liy Slc(!regor's ganleii and my
I orchard, and to enihr.ice all the tiats even witli
the north part of the cottage now occupied liy
my eariienter, and which cottage is to go into
the bargain with the land." It ajipeared that
I the garden fence extended only part of the way
I to the drive from I liindas street, and the dispute
I was as to the eastern houndary lieyond it ; —
Held, that the iilaiutitl' was not therefore enti-
j tied to claim to the eastern boundary of all the
'■ land known as the park, but that, this being a
' latent ambiguity, parol evidence was iulmissibli!
I to ascertain what was intended by the parties.
{ liiinji ■■<■■< V. DiiiiiiKiiii, l(! (). H. 4.")".
I Defendant, owning a block of land which hail
, been hiid out in vilh^ge lots, t'onveyed it to S.,
j the plaintitVs' grantor, reserving thereout several
village lots, and among them lots I, "J and 3 on
the south side of (jhieon street, in tier 'J. There
I was in fact no such lot I laid out, either on the
I jilan of the village or on the ground, the tirat lot
on the south siile of Queen street being No. 2.
S., in 1870. conveyed to the plaintitl's part of
village lot 4, on the south sitle of Queen street,
in tier 2. The adjoining lot, .">, was then pointeil
out to the plaintitl's as being 4. ami they built
upim it, defendant occupying "J, .'t, and 4, anil
having a blacksmith's shop on 4, which lot he
had occupied ever since his sale to S., as one of
the reserved lots. The ]ilaintitl's having brought
ejectment for hit 4 : -Hchl, — Richards, ('. J.,
doubting that, as the extrinsic evidence shew-
ing that there was no lot I disclosed a mistake
in the description of the lots reserved, and a.
latent iunbiguity, parol evidence might be re-
•?1
'J'
WT'
Ur.Vt
DEED.
I":i>>l
ft'
] ' ' i'
ui'ivt'il til i'X|iliiiii it ; ninl thut tlic ri>N<Tviiti<iii
iniKht lie I'liiiMtriitMl uh nicuiiiiK lots '.', .'<, ami I,
or till! til -it, Hcciiinl .'iiiil tliii'il lots nil tli.it .«iilc III'
tlii^ Htiirt. K'iiiiitiil. V. /</■-,/.,. ;»:>(;. II. 4l."i.
Sic '>,<.,■ V. W'tiitiliff. 'MU). W. Not yi't ro-
[Kll'tl'll.
I'lvidrliri' til i'X|il,lill |iatL'lltH. Si'i' Dm Cikii/i-
lull V. rrnnl-M, !1 g. II. (;:i<t. |.. l(»'.»-_' ; Ihiij.irlfi v.
/Irlflnii, :«)(,». IS, .T.'i, |i. lO'.'.'i ; h^nlis.M.I'lu,-
.1(111. ',v.\ (,». It. ;i7ii. |i. iKj.'i ; ./».■»,// V. /,'< iiiinii/i, ;tt
(). II. 171. II. lO-M'i : //""i;,y.S(ili,,iiiiii,-2\ Tiiy.
.TU. 1 1. II >•-'?.
;iIk(i, .V"/i(/' v. /'"i, !."> ( '
All itliloii^ trai't iif liiiiil, 'JO liy 100 ,,1
oiiiitiiiiiiiiK two liiiiiiirrij mTcn, v,;i„ bhI,,! "I"'
iiitii Hiii.illi'i-liitM, witliii laiii' liiiil Miitaiiij ,(1 1
iM w.iM Hii|.|MMcil, tlirmiKli till' ''iifriiii til, I. 1
M'llil'll it ri'^lll^' VIILM ilri'iiril iiiir t..»l... Ll '> I
y WiiHiviT,>r.liiii.'tutlifth,.n ,„„,.,.
itt I liiiiiiiil.'uii'H. I'ait lit till' trii't Iv
""^•'■.V'"i;;ui.!„||
Nc,
V.
//
Ill/Ill
.-, ;);((,». II. :.iii, )i. i(i:ii.
p. :•().'), |.. lO-.'H;
m I
r:\nt nl till' I.Uli' M'.IH Miilil iilli
till' ili'cil lit tli;it |iiirt n tVrciKT HiiH iii;ii|,. .
|ilaii, wliiih >.|i.'W<il llu' luiii' iiN l;ii,| niit thr.(A
the cfiitii' iif I III' wlmlc tniot, mill tlir |i,i„,
tlu'lrill ili'cliiliil ti) 111' till' Wi'Hti III liiiiiii,],, "
MUrli |iirri'. Ill tilt' Miiiiii' ili'i'ij II ||,,||( ,. .
rt.iN ^laiiti'il til till' iMirili.iMT ill ai|,i ,,^',,^2
Mikiil laiiii III' Wiiy. lii'iiiK ,s;i linkx u, widtji, -Z
li'liii/i mi'iil ii'iiji i.< iilnnihi aIiiI.1,1 1,11,1 l^-^f
fur llii III III jU III' I III iin'ii/iii r.s .,i' III, t„;,i ij-
AftiTWanls it Wild ilimin I'lvil tliat tiiiifw,..
mill wi'.sti'iii liiiiiiiiliu'ii'N lit' till' «liiil<. tw
llll'il ailf lot. il.i lit' illl till' IntH ,|i|jiii|ii||,,
lii' iiiiii'i' III till' wrut than wiiM I'liniii iIvkii'ii
ami it' tliiiMi' liimiiilaiiiH wrii' .-.lnitcij t.l iij,
|iiii|ii'r lilai't'd. as hail ln'i'ii ilmii' liviln.„«|„;
III' ailjiiiiiiii,!,' lilts, thi'laiioax iiii;,'iii',iily |;,||,.
iiiiilil lint niii.iiii ill tlio iiiitii' ill till' lilt «i,rt
sliilti'il : lli'lil, ill I'ji'i'tiiii'iil liv till' iinivl,,,.
iif till' pii'ii' til till' I'ast lit' till' liiiii., til, It
wi'.HtiMii limit I'lUili! mit I'.xti'iiil lu'Viiiul tin i^j
siilf lit till' lane att slaknl mil ln't'iiii' tlii' ixii
tiiiii lit' till' ili'i'il. hiiiiii 1 1 III. V Tiim,- 'ii
I'. 104.
Wlii'li two iKa;il.'< wi'ii' ^'ivni tii ilill'uvm iiJ
til's (if 11 lilt cdiitaiiiiii^' l.'iOarii's, tln' first luviri/
fifty acri's liy iiii'ti's ami lioiimls, tlio la.sti„i
taiiiiii.t,' till' whiilo lot, ami i'iumiiicih Jni; at jj
s.mii' jiniiit a.s till! first, "i'xri'|it tifty acri.J
ti'aily siilil." it was llclil, tliiit tlu'' bt i
I'livi'i'i'il iiiily the ri'iiiaiiiiiig MMI ariis nf (Ik
II liS'JO, ami that he ami i .I'-'irc v. McKiiiiiiii. 8 C. I'. :{7:t.
ii') ((///' /' ( '(111 1.
Till' trmit half of a lut Hn)i|i<iHi'il to oontaiii in
all 'JtlO aril-', I'lit ill ri'.'ility i misistiiiK' of ninii',
was I'liM-ti'iu'il to iiii'.iii halt tilt' "fal i|iiaiitity.
i':iiix V. Willi, III, .")<». s. (;:(!».
Tn'spass i| I', f. 'riif |ilaiiititl' t'laiiiifil iimlt'i'
ili'iils finiii \, M. til S. M. ill l,s;il, ami fiiuii S.
M. til tht'iihiiiitifliii l.si:i. Ill IS'J'l. A. .M. hail
iiiaili' a ili'iil til his .str|i-iiiiitlirr, iiiti'iiili'il tn he
ill lii'U of liiT iliiwir 111 his t'atlu'i'.s lands. It
was ileal' liy cviih'iii'f at tlii' tri.'il, ami liy
tilt' nii'iitiiiii iiiailf ill this ilt't'il nf the laiuls
ad jtiiiiinu', that the j,'i'aii tor's intt'iitinii was to
colivi'y till' Wist ]iait of lot ."i ; lillt tlir ik'i'd
(It'Si'rilii'd tlif land hh "Inlii'i lUinijiu.inl i,/' l/ir
eimli ilji fiiirl III' liil .T, in the first I'oiii'i'ssion of
tilt' said lowiishii) of S.," aildiiij,' a disi'riiitioii liy
iiii'ti's and liiiiimls, lii'j,'iiiiiing nl lln S. )■'. nniilc
III' III! .iiiiil liil, wliii'h eiuilil lie wi'll I'arric'd out. It
was jiroveil, however, that S. M. had heeii in
jiossessiiiii of the land
the )ilaiiitirt' h ul lielil it ever siiiee : Held, tluit j
the deed eoiild pass no land wliieli was not part
of the easterly part tif lot 5. U'liilr v. Miii in, |
10 (,). B. r)74. I
A mistake of a surveyor in marking the iiuin- '
her of the eoni.'essions wroiij{ on some of the I
posts of an original survey will not make it
proper to di'serilie the lot.s so niaiked as heiii^' j
in the eoneession nuinliered on the posta. Jiirri.i '
v. Miiiliiii, II (,>. 15. 4.SI.
In I'jeetineiit for 20 aeres the |ilaiiitili' elainied
under a p.itent. Itefendant ]iut in a mortgage
from the iil.iintifl' to one P. of IHOO aeres, ile-
serilied as " lieiiig coni|)rised in the selu'ilule and
ni p attaihed." The land in the patent wa.s not
nientiomd in the seliedule. though it w.'is laid
down on the iiiaji, hut it was proved that the
maji contained other lands lielonging to other
]riities. .'iml was not made with refereiu'u to the
inortgiige, ami tli.it tlit^ schedule eniliraeed lands
not appearing on the inai) :- Held, clearly insuf-
ficient to liisiirnve the plaintill's claim, ('ulliui
V. McCiillii, -21 Q. H. r..-)*).
In tresjiass i|. c. f. it apjiearetl that deft iidant
conveyetl to the plaintitl' 10 acr»'s of lot '2 in the
.')th I'lHici'ssion of Barton, described liy inetes
and liounds, coninieiieing at the N. K. angle ol
the lot. This starting point uiion the grouml
was unilis[iuted ; anil it was atlmittetl tliat the
ileseription given enclosetl tht; land elainied liy
the plaintitt':- Fleltl, that defaulaut was estop-
jieil liy hi.s tleed. and could ntjf set up any ijues-
tiun as to tbu hounilary between lots 1 anil 2.
VroHamiUe v. Oaije, 32 Q. B. IDG.
The ]ilaintiir owned part of lut 7, .in'
verbally, in liS,->!l, to buy from nm. M, i
more adjoining on the iiortli, nf wliiili !
into possession. In ISCiO M. gave tu il.
a bond to convey to him thirty ai'i'es nt ili,l,i|,|
more or less, tlescribing it .is "all tliat iiirt'
tile said lot 7 lying north of the laiiil nwiifiliivi
1 1," the plaintitl', "and south 'il tlie mail tlirniiij
the said lot to Cranialii' Hill. " Ile aftiriiimij|
conveyed the two acres to the iilaiiitill, wlintlicDi
brought ejei'tuient. M. swore u|i(iii tli tnill
that these two aci't;s were nut int ninl t'i|«|
included in the liomi to deffiiiliiit, l^t utrel
looked niion as a part 'if the plaiiititl •
ri ferreil to in it, iind that ilifeiiilaiit lia.l witlimiil
them his full ;(0 acres : Hflil. tliat tin |il.iiiit!lfj
must recover, for, I. The bninl, iimli'i' [liciir.r
! eiimstani'es, slioiiid In; cunstriiecl a.< ii'l'iTriiik'tflj
all the l.iiiil in tlie iilaiiitifl's vin.lili' imssi'sij;
.IS owner, thus exelllilili!: fill t" Vi
ami. -
The di^ed at all events >teil
;itl,- :
the ]ilaiiititl', a' ' ih ulaiit's .itii;!
■'• r.r
under the 1" i' ' ...'.iid no ilefeiiiT.
/^-<.»
I,iii-li V. /'((/ g. i;. 4(i'J.
Where lai. descrihcd as coiihik'H' :M^'attiej
intersection . ; roail al! waiue liy i •<triaiii,|
ami the boiiiiilary lines ■ niiee iliveru't' trmii tliej
stream mi either course ','iia'ri', wlurt' is tkcj
point of coiumencenieiit, in the iniiMli' "I il' j
stream or on the bank, and what aiitluii«M'«|
rights as reganls the water? This iiiu'stimifMl
tliHCUs.ied, but not tleeided, as the iilaintiH' f ail«i I
to shew- that any part of his 1 iml c.iini' tu tbej
stream. Hamilton v. Ooiilil, •_'4 Q. B. 58.
HA
-" ''y ino ,.i,„„
VH, v,M »uli(ln,:,,i
luiil Hilt iiihl ,t,|l,,|
.• I'llltrcnldl, f,,'j
I! til til,- till II 111,,].,',
li<'tiii'tlyii,:t-,J
ili'iiMV.'Vcl; i,|„i|| I
I'lUT \va« ll|;\i|,. . J
■ :"* liiiili.iiUhr^l
ft, ami tli,|ai,r,yj
'•>■'! .1 n^ht i,| ,,t|
ii^''!' in iiihl ,i\im',|
inkH Ml «iiltli, •■nij
.^^lU■l,| ,111,1 /„;,/ A
I rs III' III, t,i'„l i,i\
l'l'<l tliat til,' ,;i,tinl
tln> «liiil,. twiilm,.!
"t-" ailj, lining, >l„„|J
H riiniiiilv»u|iiii,«,l;l
I'M' Mlllltnl ti. t!!,}J
iliiiii' liy llif iiwii.jl
N iin;,'iiially Iiii4(.t|
iitn' III' the lot m1,J
•lit liy till' imil |,;|y I
il' till' laiu', tlut J
ti'iiil lii'yiiinl tliin^l
ml lii't'iii-i' tlui'Xi:>iI
' "/. \. 'I'i(ni,\ sJ
ivcii til iliUVniii |,J
'ri'><, till' liistudViiiM
Itiniliiis, the libtiij
niiniiii'iiiiii^' at tJ
I'Xi'i'iit tifty acri.-;ii|
, that the' lx<t I
; 1(1(1 acres iif lli.
•f lilt 7, lUlil :ii.Tni|
mil line M. t« I *m|
I. lit whieli 111' MMtl
I. ;,'ave til ili'fiiiilMiI
irty aeres nl llii|.i|,|
as "all that pirt <
if the laiiil iiHiiclkl
|li of the mail tlir"n;'lil
ill." lie aft. r«:iMl|
,ilaiiitifl', wiiiitlwl
iwiire iilHill til' trull
nut ii,1 jili'l t'il«l
cfeinlaiit, hilt wffil
till' iilaintill's lanilj
U'liilaiit hail »itli"itj
hi. that til, |ilaiiitiij
|liiiliil, lilider ill'.- lif'f
nieil as r('ferriii;'I«j
's vis.lile ]i'isS(.'Sil"51
it' It aiiili
, ,; litit :
jiit'.s o|uitiilili' Piii*.]
iiiiilet'eiii'''- /''"■
ICi-J.
l.s eiiiiinii h ;;i:aitiiej
Ivilliee hy a strcatE,!
lieo diverge friinitlii! J
l,»iia're, wlu'i'i' i* tls I
the iiiiiMli' iift'fj
|»vliat are till' "»w*j
Thisiim'stiimwaij
,., theiihiiiitirt'iiiWj
is 1 mil came til the J
L>4 (l B. 58.
1(1.17
I) RED.
10.18
I' iiwiiiiiK '"'"' "" '"'''' "''''" "f " "trciiin, WIhtch vi'iiili'f Iwl'iiri' iilitniiiiiiK
a II 111 \ I'Viuu'o
convey'
cxteiiiliiiK
I a iiit't'i on tli>' Hiiiitli Kiili', ili'iierilM'ii an a»Hi>;ii('il in .\. Iialt' ul tin' laiiil |iiireliai<ril, .iiiil tn
'ti( the watci'i* I'llnf "if till' eii'i'k ; II. tlir utliir hall'; ami tlu' \eiiil,ir att
theii
iiiiiK'
iliinjj tin' Matrr'n i.iljje iif Naiil exeeuti'd a luiiVfyaiiii' tn lai li, tiy M liiili it
wan
li with till' stnaiii iiiiti
remTv iiij{ a iiiti'iiili'il til iiiiivi'V tn .\, ami II. tin ir irM|i<',ti
riillil litteell
t'et't uiile aliiiiK till' liaiik : llrlil, to |iiirtiiiiiH nt' tin- lainl, Imt l>v a iiii.itaki' in th
|)ii»i'
the lali'
I t.i till
I'lltl'e 111 the Htl'i
Kiihi-1 i'es|icitivi' ili'Hrri|itiiiiis till' I'liiiviyaiH'e to .\.
lull, III
I' iliil till
ll\i'\ail,'i' til I!, rnllllirisi. .\
V'liri'i"' , •'•- '.'■ "' '"• See /i'ii/k c/^i/i V. W'nf ('iiiii|irisi',l It. '.s lainl, .iinl iliil mit riiiii|iri>n' .\
('. I', .iml in apjifal, lint yut reimrtcil.
The iinith lull' "'' '"t - • '" *'"' -'"' <'iineiMHi
of lliiihiiK'""' »''''iii'''i"K t" ♦'»' "I'lKiiii'l survey
lami ; Imt i.'nli tmik ami kept the lain! artiially
iiitemli'il r,ii' liiiii
111
.■NpraKKe
\. ('., ill
iiiitaini
•the
nil
1 1 I OS aeri'H.
th l(M» aei'i
II. I'diivey 111 to ili't'i'inlant
H of the iinrtli half," ami
that, to a liill tikil liy It. ai;aiiiMt A. for a eon-
vevaiuTof It. '« lami to liiiii, the heir of tln'ori;;!
afterw.ir
,h to the
the
ilaiiitill.
«'i.U
ht
aires, iinii'i'
II vi'inlor, III \t
or li'.'"*. '"'"'■
Jie,, "anil hem;;
eiiiitiiins ovel
tl
rtli t'i;;ht aeii's of lot I'l,"
north half of saiil lot
still
loin the li'^jal I'st.'tte ill .\.'s|;il|i|
vi'steil, was a iniessarv
irtv.
/;.
V. Iliijiili II, ■_' ( 'liv. ."i.'iT
KM) mres.
theillKilll oriv'lll.'l
11"
fiiritowiiiK
I alhi
The Kin^istoii roail, 'I'lie owner of the west half of a lot of lami,
lit sulistitllti'il siililiosili),' himself to lie the
if till
•asl
to natural olistriietions, ran tliroiii^li hall, ami not the west hall, eontraiteil with tin
the "iiiltli I'li't "' •'"' north lii'ilf, t.'ikiii>; ii|i t\\ o owner of nther lainls to exeliaii>,'e for these the
ail lieeli estalilisheil as a hitjliwav liv
till'
iKii's, anil hail heeli estaiillsneii as a nit,'
Hiii'r till fiii't.V yi'iii'n. Whi'tlier it existeil lielolr
theilecil til 'lefi'll'lil'lt- '"' whether the soil liail
. vi'steil in the el'own iimler our statute.-:,
Ilelil, that the ileeil to ilefell-
eiiverolily 1(H) aires in all, not exelll-
lieii.llle
iliil lint iijipear
ilaut I'liilli'
si^i!
east half, ami the east half was eonvey eil aeeoiil-
in^^'lv. lie lileil a liill to eoni|iel the other |i.'U'ty
to tile a;;rei'nn'iit to ae,e|il a eonveyaini' of the
west li.ilf, anil speeilieally iieiforin the eontr.iet
eiitereil into lieUNeeii them, liy eonvey ill;; the
laliils a>;reeil to lie ;,'iveii lor the east half, alleg-
the mail. .'Uiil that the iilaintiir was eiiti- iiig iiiistake in the iiisertinii of "east" instead
tiiil to the ruinainiiig eight acres. Anh \. Sumi !•.•<, of "west." It .'iiipeare,! tliiit the two lialve>(
.MO \\ pjl. I were of alnillt eipiiil value, ami that the ilefeii-
".\ riL'ht nf way ten feet wi.le, .leserilieil as ' '''"'V"*"^ "" l'^^"""! km.wleilgi. ot either ; Imt
niimnu north frouiaeertain street e,,iially upon. ,'^''.t''!' f"'itraet was or he east hall, ..ml the
I I i>. u.i, tie,, Infs til til.. ili.iiHi of r.i) mistake was that nl the plamtill ,'iliiiie, the emirt
iiiiiLi iin, letweeli two lois to iiie ilepill ot («» n i i i.i i »i . i i, ii . i i i-
■1.1 1 ,.; ,l.t .i.,,rl..,, . II. .1,1 },, ..vf...>.l ' llelil, that the west halt eollhl not be sulistl-
li-.t an, then at rigllt an^iles : - Itelil, to exteml . . .■ .i . i i.- i .■ i .i ,■ e
I .' tl »,>... .7, Hie l7,ts so fliaf H i-,,.m I tiiteil tor the east hall, ami relii.seil the ruliof
111 V i( leet III t«eeii me nils, so mat me eioss- i , , , , , ,. , ,| ,.,,.
Ill- »i ;,. fl.nf lluf.,i,,... ..,.f ♦.,., f.„,f '"*ki'il. ( itlliinihinii \. iiiiiltiiii, {i (\\\. S(>.
ttiv»imlil lie w tliiii that ilistanee, not ten teet •' .'
Inviiliil it, wllieli WDulil make the ileptli 70 feet.
M'd.iniiiinii V. Iliiiiiiii-!', •-'.") l»). IV 41!).
J. L eiiiiveyeil to (1. L. a piece of lami exteii-
iliii|i lOHfcet (i ini'hes along the south siile of
UilliiiL'tiiii street, easterly, from its iiiterseetion
»itli Hijiii street, eiiveiiaiitiiig that, slimilil the
line lit \Vulliiigtim street liesliifteil to the north,
The plaiiitiir snhl to ilefeiiil.'int a lot nf l.iml ;
the coiitraet iliil not ineiitinii the iiiiinlier of
acres it coiitaineil ; the eonveyanee stated the
ipiaiitity to lie "JOO aeres, more or less, and the
covenants did not warrant tlie(|iiaiititv. Part of
the imrcliase money r.'inaiiiid as a lien on the
land, and many years afterwards, Imt liefore tlio
'liase money was fully paid, the vendee ilis-
, ,, r. |. 1 .,„,, I.,, „i *i,„u i.,t'f ;>.*.,.. , imrcliase money was tully panl, tlie veinlee lUs-
hfffouul L'raiit tod. 1.. any iaiui tnus lett inter- i ' i ii . ,i ( ,■ ■ ,• ...
1 r *i..,f of......V I. ,.l. r...i ,i..,l fi... 1 covered that there was a ileticieiiev ol '^4 aeres
voiuiiL' httweeii that street *) eliaiigeil ami the . , , i . t .i i . n ii
biliioWKvauteil. The .si,i\h side of Welling- i "' tia; supposed coutcnts "/ I';' l<'t : Mehl.
tim street was shifted aliimt -J.-Heet to the north, l tlwt the vendee «'ns not entitled to eompensa-
1 .11,1 a»Klnin street inteimarted it at an acute I *;«" f''""'. V"' l''=t'"*"'' ''"' 'If Iif ';;>'t'y as against
angle, the iiitersccti.m was al.out 1 1 feet further *',"'. .I'".!"'''.!, l'"'"'''''^'' """"'>■• ''""'-' ' ' ' '"''"'•
«Mt than het'i lie. (i. L. having olitaiiied a eon- " * "^- "**-
viyaiii'c ill aeuirilanee with the covenant: W. iiiortgaged his land toS. , and afterwards
i lldil, tlwt he was entitled to have his eastern sol, 1 and eonvi'yeil the eipiity of redemption to
lioinulary iniiiluieil on its original course, at A. ; Imt liy iiiutu.il mistake the land was so
right angles to \\ tJlliiigtoii street, though he descrilied in the eoiivcyaiiec to A. .'is to com-
wiiiihl thus have more than lO.'l feet (> inches on prise part only : A. sold and conveyed to S. hy
j that street ; fur the intention was to give him all the same description. The plaintitl' afterwards
tlKhiiiil in I'rniit uf that first conveyed to him, discovered the oniission, prneured W. to .sell and
j anil liitwecn it ami the street as altered. Ak;/;/ convey tlii' omitteil portion to liini, ami liled .a
|v. Miiitkiniinii, '\'2 Q. B, l'2(). j liill against S. for a conveyance thereof. It w.as
, . .... . I jiroved that liefnre the sale to the plantitl' \V.
„ ,, , , ,, , , 1'"""^'" "I ! had sohl all he purchased to A. :- HeM, that
11'' that he hail that ilay luirchased I .■ ■ .e ■ t .- .- n ^ .. i ..•
? ,,., -ii i. .. • 1 this was siillieieiit in t ot that actual notico
kiiiiwii .as " the mill iiioperty, in . ■ i • -i • .i ■ i e w i
' ' •' which IS leiiuisite 111 this class ol cases. }} njle
V. .Sil/iriiiijloii, ly t'hy. ")12.
I itft'iiilaiit gave a
JJIOOO, m'itiiigthatl:
jrertain lami kiiinvii .as "the mill property
the village of I'., and fully dcfcrilied in a deed
Di.iilt liy one .)., anil conditioned to convey to
the |ilaiutitl all the land in said deed over 'J.J
j aeres, heiiig a strip on the western portion of
Itheiiroiierty, as soon as said land could be sur-
] vevHil. The iltieilhyj. included over 4 aeres, part
eh at the eastern end was covered with
l» . Helil, iiiat ilcfemlfint clearly was not
I tutitlttl to retain 2 J acres of <lrij laud in addition
jto that covered with water, but only 2 J aeres of
{the whole. Gmr\. Johnston, 32 Q. B. 77.
The owner of two town lots, 2.") and 20, sold a
portion of 2(J to one P., but by mistake the de-
scription in the deed was such .as at l;iw to pass
the whole lot. He subs 'juently sohl lot 2."> anil
all that part of lot 2li not before sold to P. to
the plaintiff, and the deed thereof was duly
registered. Subse»iueiitly to the registivatiou of
this deed, defendant obtained a conveyance from
P., the deacriptiou of the laiul beui^ tlie same as
ii
i(i
■ ' «
1039
DEED.
lOifj
that in the deed to P. : — Held, that the registra-
tion of the plaintiff's deed was notice to the
defendant of the plaintiff's claim to that part of
lot 26 not sold to P. , and that the plaintiff was
entiled to a reconveyance thereof. Gillen v.
Haynes, 33 Q. B. 516, followed but not concur-
red in. Uiiijucx V. (JUkii, 21 Chy. 15.
See MrMaxter v. Phippx, 5 Chy. 253, p. 1045 ;
McDonnM v. Feriimoii, 17 Chy. 652, p. 1046 ;
Calvfrl V. Linlfji, i>l Cliy. 470, p. 1046.
See V. 1, p. 1043.
3. Conditions, liexi'mitionx, and Exceptions.
Defendant claimed under a deed in fee, in
wliieh, after the habendum, was contained a
proviso that the conveyance should be void, and
the estate revert to the griintoi, if the grfintee
sliould make default in performing tlie covenant
thereinafter contained. This covenant was, that
the grantee should cultivate the land during the
life of the grantor for his benefit : — Held, that
the proviso was void, as being inconsistent with
the grant. Brown v. Stuart, 12 Q. B. 510.
Where lands were held by A., upon express
condition to alienate only to his children, and
under an execution against him the sheriff sold
and conveyed liis interest by a deed sufficient to
pfiss the fee : — Held, not a breach of the condi-
tion. Jfeaume v. GiiicJmnI, 13 Q. B. 275.
H., by deed poll, in consideration of natural
love and affection, and of 5s. , conveyed land to
her daughter, R. , in fee, adding after the haben-
dum, " reserving, nevertheless, to my own use,
benefit, and behoof, the occupation, rents, issues,
and profits of the said above granted premises
for and during the term of my natural life" : —
Held, a conveyance of the fee simple, not a
mere testamentjiry paper which the grantor
could revoke by a subsequent deed. Qmere,
whether the reservation was void, or whether
only the reversion passed subject to the life
estate. Sinipmii v. Hartman, 27 Q. B. 460.
Held, that the reservation in the above deed
was not void, but that the <leed might be con-
strued as a covenant to stand seized of the
reversion to the use of R., the life estate remain-
ing in H. Hiirtmun v. Flcnunij, 30 Q. B. 209.
The patent to A. V. in 1796, contained the
clause then usual, saving and reserving to the
crown all white jiinc trees : — Held, that not-
withstanding this reservation, the plaintiff, claim-
ing under the patentee, could maintain trover
against defendant for tlie wliite pine, for the soil
in wliich they grew was his, an<l he was entitled
to their shade as against a stranger. Vaxiodninn
V. Ihrxi'n, 32 Q. B. 333.
See JReyuohU v. WcukHl, 12 Q. B. 9, p. 1015.
4. Hidtcmlam.
Where the granting part of a deed of assign-
ment transfers the indenture simply, and the
habendum the estate in tlie indenture, the estate
passes. JJoi' d. Woml v. Fox, 3 Q. B. 134.
It is superfluous in any deed of bargain and
sale to express tliat the land is to be held "'to
the use of" the bargainee. Gamble v. Jiets, 6
Q. B. 397.
By deed of bargain and sale, A. M. tonvcv-i
to H. M. her heirx and axxiijns, certain fretli,,],!
premises, to hold the same to tlie said H \\
her heirs and assigns, "so lon^ as she iviiiaiti
the widow of M. M., but should slir inariv!
decease, the above described lainl will l,,.,.],, !
the property of the two sons of the said 11, y] |'
M., and J. M. forever." C!oveiiants inr title «(.
added to the said H. M., licr heirs and ii>siinii
— Held, that the habendum coiistitiiicl ;, ini,,^
tion and not a condition ; that sutli limitatin
was void, as being repugnant to tlio yiant u, tl^
premises ; and that tlie grantee took a tee sini. i
Doe d. Meyerx v. MurxJ,, <J Q. B. -.Ml'. '
Under a conveyance to A., her lairs uud a,,,
asigiis, habendum to A., her heirs ami assij.nis
and in case of her decease leaving issne, tlan it
trust to O., (her husband) liis lii'iis m- ussi-,,,
to and for the benefit of the said cliildnii, tfuir
heirs or assigns, to lie sold for tliiir luiidit, ii
the said O., his heirs or assiL'ns, shunjil think
tit; and if the said A. slmuld nut survive the '
said O., leaving no issue, then to the said 0..1iii I
heirs and assigns forever :— Held, tliat the iial>
endum being inconsistent with the jireniises tht
former must govern, and tliat A. tnok a tee
Oif-iton V. Wilfiamx, 16 Q. B. 405.
5. Deeds undir the Short l-'onux Ari..
S. being owner in fee, by deed exjiressed toljel
made iii pursuance of the act to facilitate the I
conveyance of real property, in ciiMsidenitiiinfiil
£75, did quit claim to one (i., his heirs ami I
assigns for ever, all his right and title to the I
land in question. It was atlded that (i. mightl
take possession, that S. would txeeiite such
further assurances as might lie rwniisite, that he
liad done no iict to encumber, and lie relcasdi I
and quitted claim to (J. all his claim uikhi said |
lands : — Held, sutiicient tfi pass the title in fee.
Nichoimn v. Dillahoiiijh, 21 Q. B. ."I'.ll.
One J. S. being owner of the east hall ef uiie
and the west half of an adjoining liit, liyilteil,
under the act respecting Short Furnis, cd'uveyed
to G. S. in fee, the west half, witlmut exims
mention of any easements, &c. There were
then on the west half a saw-mill and factdry, I
which then and for some years ihirin},' unity of j
title to both lots, were driven liy a river, wliicli I
was dammetl back to form a ["iml (in butli loti, j
by a dam and enibanknieiit extendiiij; on to
both. There was on the west half a grist mill,
ready for the reception of mai hinery, and the |
embankment was partly cut tlinaigh totarrj-
the water therefrom to another jmnd jiartly he-
gun, from which tlie grist-mill w as t" he sup- }
plied. After the conveyaiKv, ('•. S. tlnijiboltlie |
cut through the embankment, carried tiie W3'»'
required from one pond to the other hy a fliiaie, I
and thus worked the grist-mill, whichenulilLot 1
otherwise have been worked. liytbis heiliver-i
ted the water from the tirst punil and frumt
east half, more than befnrc the cimvevsnw. 1
Such diversion and working of the mill »«« I
with the parol license of ,F. S. The oiitriiij, |
tlunie, aim grist-mill pond were all im thi'irestj
half, and the water was returned Imni the
to the river below the east half ; Held, that a j
by the statute the deed included all easeiiioiiB,
Ac, used or enjoyed with the lands granted,!
there was an expreas grant of the right or ease- 1
lillii •''• 11, ■ ;
^m
m
A. M. ciinva^
ccrtiiiii imi4
the said H. M.,
u as she rcmaia
iTil slic lUiiriTit
ivml will 111 It,
husiuail.M.i,
ants t'liititli'WtR
eirs iiii'l ii>sigiis
istitutcil ii liiiiiu
t siK'li limitatn
tlio yniiit 111 tilt
took a toe siniiilt
B. •24-'.
lii-r lifii's and ag.
ludrs and assijpis,
^•iiig issiii', tlii'ii in
« ludis iir assigns,
,aiil cliildrt'ii, tlitit
for tlicir lioiit'ht, ii
iL'iis, sliimld tbint ]
ill IK it survive the
1 to till' said (I., Mi !
IflU, that tlm liat> j
;li till' \ia'iiiises, the
lat A. tniik a tee, |
40.'..
leeil ex\)rfc.ssaltol)el
lot ti> facilitate tkl
, in I'linsidciatiniKiil
; (;., his heirs aiiil[
;lit and title tnthel
iiihU'il thatC. mijihtl
iViniM execute siithi
tie ruijuisite, tluthel
lilicr, and he rele,iseil
11041
DEED.
1042
his edaini ui«iii
lass the title
said I
ill tee,
Q. H. .V.ll.
the- east hall I't uue I
iiiing h>t, hy ilwl, I
'oi-t Forms, conveyed
|all, without exiireai j
There were |
Iw-niill and factory,
: uiiitv i I
(liii'iii{
IfU liv ;i river, wl
a poiii
Int IX
icli
I imhothluU,!
tending on to
■St hall a gri:
it mill,
machinery, M
the
Lit through to larr)-
Ithcr iiond (I
artlv !«•
nil was to
C
•arriei
idhcrhy
fuiisbfltiii I
I the w,i'-'
tlniue,
id I mm
(luvevim*
I were
it to maintain the (lam ami to enter for pur- resjiectinc short forms of leases," which is the
aea of rciiair on the east half, and toilam back title of tlie oonsoliilateil act ; — Held, rcverthc-
S , f,|,. the jmrposes of the .tdirtiiil/ 'ok/ less, a sufficient reference to tlie cons<di(lateel
act, so as to briny the lease witliin its provisions.
Doris V. I'l/v/iir", '24 V. P. oK!.
Wiicre, therefore, the jdaintitl' (the lessee),
Wius evicted by title paramount to the lessor : —
Held, that he could not recover as for a iireach
of the covenant for ciuiet enjoynient, which is
limited by the statute to the acts of the lessor,
and those claiming under him, nor under an im-
plicil covenant contained in the word "demise,"
;ui it is controlled by the expres.s covenant for
quiet enjoyment. //(.
The covenant in a leasn purportiiiL' to be made
under the Short Fonns Act, was, " Anc' the said
lessee for himself, his heirs, executors, adminis-
trators and assigns, hereby covenants with the
said lessor, iiis heirs and assigns, to pay rent,
and to pay taxes, and will not assign or suVlet
without leave. " * Proviso for yv-r/i/i )■(«(/ by
uu-liini to the same extent as before the c(mvey-
in'cc 'B'lt. Hi^^l''' !*'■ -■^- ^^''Is"". •'■- Itichards,
', . i' ....i.,inriiiL'. thouirh absent, that iu> ridit
those claiming 1
the rii-dit chu.iicd respecting the ^
,T Wilson, ■!., tliat there passeil
thereon
*"''l' clinciirriiig, tlKUigh absent, that n.. r
;, ei.scmtiit passed in respect of the grist-mill ;
mil also, that the parol license was revocable;
imt that' the plaintitl's, the mortgagees <.f ti. ,S.,
would lie entitled in eiputy to restrain J. S. and
under him from intertering with
,'rist mill. I'er
by implied
oruit all the easements claimed, including those
in resiiect of the grist-mill. Eilinli'ii-;/!' !.</<
Afsiiruiii'rCc. v. liiinihuft, 17 <'. l". (!3.
\ covenant in a deed, purporting to be made
in iiursuauce of the act respecting short fcrnis
of 'nnvcvaiiccs, that the grantor "hath the right
to convey the said land to the said party of the
jecfliid I'lart," omitting the words " notwith-
gtaiuling any act of the covenantor," cojitaineil
in column oiie, of schedule 2 of the act :— Hehl,
not a covenant within the statute; buttoin"nn
that the covenantor had the right to convey as
he had conveyed, i. e., in fee simple :— Hehl,
also, that the omission of these words did not
alfiettlic succceiling covenants for (piiet pusses-
sioii and further assurance, and that defendant
haililoneno act to encumber, by making them
I absolute covenants; these covenants being in
I sccordancc with the form in column one. Broivii
l,v. O'Di'V/f, 35 Q. B. 354.
liill, whicircii\iliU"t I
1 r.y this he ilivef'
It pond
the
tke
„f the imll«'ej
The eiittuSi
all on the w; j
mI from the
all; -llelil.thatal
liudcd all casement*,
1 the huuls gr,uited,
lof the right or east-
tile said lessor on iKui-iierfiu'inanee of coveuanta
or seizure or forfeiture of the said term for any of
the causes aforesaid. "--Held, I. That the cove-
n.ant not to assign not being in the form given by
column 1, of the act, was not to be read as if in
the form given in column '2 : that it did not bind
the administrator of the lessee not to assign, and
that an assignment of the lease, therefore, by
the administrator gave no right to re-enter ;
2. That such right was given only for the non-
performance of positive covenants, ami therefore
not in this case, where the breach was the doing
In a mortgage for .? 10.3, purporting to be made something which should not have been done ;
'ii Iiursuauce of the act respecting short fonns of 3. That there was no substantial difference be-
kjortgages, between A. and B., described only i tween "re-entering," the word used in the lease,
the parties of the first and second jtarts, the ' and " re-entry," used in the act. L(;e v. Lornch,
jntof the land was by "the said mortgiigor . T. T. 187.">, not yet reported.
ito the said mortgagee, ' .and the parties were
rviards described throughout .as "mortg.agor" ]
id "mortgagee," the covenant for payment | (5. Borgnin and Sale.
ling "the said mortgagor covenants with the T|,e registry of a deed of bargain .and sale,
id mortgagee that the mortgagor will pay,' relates biiek to the time the conveyance was
:, In the margui was this receipt : " Received n\n>\e. Doe d. Spafon/ v. Brown et ((/., 3 O. S. 02.
the date hereof, from the said mortgagee, the
of $103, being the full consideration money A deed j.urporting to be a deed of bargiiin and
in mentioned," signed by the party of the sale, but containing no statement of ciwiider-
it part. The mortgage Wivs executed by A. 'iti"". recuniary or otherwise, and no sufficient
iV. It was (d.jeete<f, in an action .against A. pr'x'f »>f consideration given .aliund.-, was hehl
the covenant to pay, that there was nothing ^'"i*! '" lawagainst a boiul liile purchaser for value
the deed to shew who Wiis covenantor and at sheriff's sale, under judgment and execution,
■ho covenantee : hut, Hehl, that by referring although the jury had negatived any fraud in
ithereceipt for the date and sum received to t'aet m the dee.l expressing no consideration.
(he mortgage, the defendant had made the re- -Oo-' Prou<l/o„f v. MrCnn, (5 0. S. 502.
lipt [art of the mortg.agc, and it clearly shewed
HI to lie the mortgagor; or, if this were not
, that the pos.Hes»ion of the deed by the plain-
ilelivcred to him by defendant, and the
iiiwledgiueut in the receipt, shewed the
lauititf to lie the mortgagee. Mdhnuibl v.
h-b, 30 y. B. .307. See, also, Vwihlnn v.
VlmlTnttmuf Tilhiii'ij Eatt, .35 Q. B. .')7.">.
ITlie provisions and covenants in a mortgage
Verthe act were— Held not to be depriveil of
ie meaning given to them by the act, because
ley were not numhersd as in the schedule to it.
lort/ie;/ V. Tniimihki'); .30 Q. B. 420.
A deed poll will operate as a bargain .and
sale ; and the 4 Will. IV. c. 1, s. -47, lias a
retrosjiective olieration so as to make deeds of
bargain and sale executed before the act valid,
Uixji rs it III. V. fiarniDii, 5 O.
/)(M- d. /{(xjcrf V. Karnmn, 2
without registry
S. 2.">2. See, als(
g. B. 470.
It is superlluous in any deed of ba.gain and
sale, to express that the land is to be held "to
the use of" the bargainee, (lainhli' v. /'(■(.<, (J
In an indenture, the granting words were,
"grant, bargain, sell, alien, release, enfeoff,
A lease made in 1870, purjiortecl to be ni.ade | convey and contirni unto the parties of the
I pursuance of the Act to facilitate the leas- 1 sccoiul part, their heirs and assigns, all and
of lands and tenements," beinc the title of singular, Ac. : To have and to hold unto the
14 & 15 Vict. c. 8, consolidated in c. !>2, C. i said parties of the second part, their heirs and
!-• C,, instead of "in pursuance of an Act I assigns forever, to the use .and ujwn the trust
GC
. i
1
■ 1
■ I y
Isf'li?
1043
DEED.
]0«
following, timt is to say, to and for tliu ii!<e of,
&c. , infimt cliililron of, &e. ; their hoirn and
asMigim forever." It appeared that upon the
execution of tliis deed l)y the grantor, whieli was
executed in eoniijletioii of a sale of his eipiity of
reden>]ition to tlie grantees, in settlement ot an
overdue mortgage lield liy tliem as representing
the deceased mortgagee, the grantees discliargeil
this mortgage and then mortgaged the estate
hack to the grantor to secure the jmrcliase money
of his eipiity. In ejectment, hrought hy the
infant cliildren against the lessee of tlur grantees :
- Held, that tlie use was not executed in them,
(the children,) hut that, notwithstaniling the use
of the word "grant " in tlie deed, and ( '. S. I'.
(.'. c. !H), H. •_», the olil rule, that deeds "shall
oiierate according to the intention of the partit.'s,
if l)y law they may," nuist govern, ami that in-
tention, to lie gathered from the mortgag(! trans-
action, which would otherwise lu? defeated,
clearly was that the deed should operate as a
hargain and sale, vesting the use in the bargain-
ees, the sul>se(|uent use heing a trust. Milclull
etnl. v. Siiiillh, iQV. 1*. .S8!).
V. ItKtTlFVINti .\NI) \'.\KV1N(!.
I . M(irti/ililrx.
The owner of a lot of land mortgaged the west
half thereof when it was supposed that the east
and west halves were divided hy a highway.
!Sulise(iuently it was discoveretl, upon a survey
made, that a small portion of the east hall was
embraced in what was always taken to he the
west half only. At the time of the mortgage
there was a gri.st and saw mill under one root,
alM)ut one-thirtlof which was on the strip ; there
were also a tavern, storehouse, barn, and piggery,
all on the strip, and the west half and strip had
always been occupied by the mortgagor as one
property, who delivered up jM)88e88ion of the
whole to the agent of the mortgagee. .After-
wards the mortgagor sold the east half up to the
road ; and subsecpiently, having become bank-
rupt in the meantime, took a lease of the west
half, "with a grist mill, saw mill, tavern, sheds,
store," &c., and no mention was made in the
bankrupt's schedule of assets of a.iy claim upon
this property. On a bill tiled by the holder of
the mortgage against the mu-tgagor's assignee
ill bankru]itcy :- Held, th:u the plaintitl' was
entitled to have the mortgige rectified, and to a
decree of foreclosure for tlie whole of the pro
perty, including this strip ; but, under the cir-
cumstances, without costs. I{llM,^l I V. J/iin I/, (i
t'hy. 1115.
A., being in possession of the east half of a
lot, claiming title thereto, mortgaged the west
half. On a bill against his heir to reform the
mortgage by substituting the east half, it was
shewn that A. hail no claim to the west half,
which was an improved farm, of which others
had, for many jears, been in possession. The
defendant neither admitted nor denied the mis-
take : Held, that the plaintitf was entitled to a
decree for reforming the mortgage. W'liilr v.
JJoiilhl, 1 1 Chy. 4'20.
To induce the court to vary a written instru-
ment, on the grounil of alleged mistake, the
ovidenue must Ix! of the Btroiigest character.
Where, therefore, a bill was lileU ti) rectify an
alleged error in a mortgage, byinserthig "l'U25"
instead of ".Cli5," and defendants (liii|„|
mistake, and the conveyancer who ilnw thcl i
swore that he had read over distiin ily t],,. 1
ten jiortion of the conveyance, tliat tli.' iiicrt!'
gee liad corrected liim as to tlie tiim ii| iiiivii,,*
and that he thought he coulij unt ||,iv',, 1 "'"
understood as reading "two" wIki, ),.. ."^
I'lniiii, I
"one,' and it also appeared tli;it tlic iustn,,
tions for tin; mortgage had lii'cn j;i\(ii i,,;„|„tK
person in the absence ol tin; iniivi viiimr y
were read over to the parties at tlic tiim' n
court dismissed the bill h ith costs l|;//;„,', *
/■•'//■w, 7 Chy. 34.-.. ""'
l». having a inortg.age over L'.S aii.s, iil,,| j
bill to foreclose. A., IV.aiKJC. Iiavii,,, ij,,,,
were made parties, and their |iM>il|i,i| sit^lnl l'
the master. A. held a moitj;.i;;i' as i\f,iiti,f ,;.
a deceased mortgagee. 1!. redrcin,-,! aii,hMi|,||,,[
by petition to rectify an allc;,'ii| niisiakf in ( ,
mortgage, so .-vs to make it a liin nv,.,. m, .^^^
tioiial •_'.■) acres prior to A.'s, over the saimiin,!
r.. failing to prove that A.'s tistator liad n,',tirt
of the error at the time of taliiiij; Ins rt„j„
the relief .sought was refused, (/fiilrii \ Sw "
10 Chy. 444.
A ni(u-tgage may In; refoniud \,\ iiis(itiii.M,|.|
ditional jiarcels, on clear parol ivMciicctlwttljj
omission was liy mutual mistake /'o,/, ./, ■ v I
CkiiijiIw//. 17 Chy. H7!).
Where a mortgage on land was (Xcutcl i„,|
municipal coriioration, for the |iiii|hisc (,t swiirf
ing a di^bt due to tlie corpmatidii \i\ its tnijl
urer, and by a mistake of hutli jiaitics tli(|
mortgage ilid not cover a part ot the lan.l «|,ii.|l
it was intended to mortgage, it was liiil tbtl
the corporation was not eiititlcil to a (Itriwl
reeifying the nicn'tgage, tlioimh a piivatf |ri>«iii|
un<ler th^; circumstances wnuld have liiin suwi-!
titled. /;/•«»•« v. .l/c.V((//, •_>()( liy. 1711,
I •_». Othn- JM,U
.'\s to reformation of a Jiolicy of jii.siinute. I
when not in accordance with the iiit(iitiMiiiiiilit|
jiarties. Sec ll'/zA/ v. Tin l.oi, li.iniiul l.infi>A\
1111,1 (ilnh, /lis. (';,., ;« g. 15. •.'()).
Oel'enilant on the '2iicl Se])tenilHi-, I,s7l', \n<dl
land to the plaintitt for live years limn tin l,>t|
( >ctober, I H7-, at the yearly rent ot .S'.'.'id, \u\iik\
"on the 1st day ol October ot !■ u'Ji year iiuaiil
and every year" during the ciuitimianii i.l tinj
term, "the lirst payment of .'S'J(II) to In riininvj
the 31st I'eceniber, I.S72, in advaiiii', tliv Intel
of said year's rent, amotintiiii; In .sUd, i.i l«|iiiilj
at the same time that the payiiiciit lor |s;:j|.<tt|
bennule. " In an :u tion a;; liiist tin' ili'l<'ii<y|
for distrai/iiiij; on the !hli ( d tolnr. JsT.'l, fiifti
second year's rent, delclMlaiil jiliadrd tin' giiK-l
ral issue by stitute: Ibid, lint iiinkT tliel
.'Vdministiation of .Justice .\it, I.s7;{, ikiriiiujtl
could have pleaded an ei|iiitilili' [ilci .<ittiiyiiit|
the facts relied on for alli liiit; the Iims.iiuI
cordanee with the agreeuiciit nl the nirtu*; ii>l|
a verdit:t for the pi liiitill was sit asiik' mi |
mei't of costs to enable him In dn so, //Affl|
V. lihidii'vll, 3.-> (,>. 15. -.'.Sit.
A deed executed in Lower ( 'aiiaiki iiiiivtudl
certain lands uituate in Upper < 'anadii tii|«itKil
"and their successors,' which wuriN it »»j
proved would convey the fee simple aii'iiriiiMH
the law of Ix)wer Canada, and it wiis slitiui iW
Iiuits ilciiifil aiy
illlMll-CW tllf,l,,i
stimlly the wm,
tliiit {\\r iiH,rta.
• time (if imyiuuv
'I Mill lliivc |,.(|,
Wllin In; |,.)|
tliat tliL' iiistni.,
:U givtlltnauiilla
niiivi valuer, :ii.i
K 111 llic liiiic, tij
•i>sts. iri//mw.,v
•-':< lilies, |il,..,l I
III < '. Illivill;,' lii'iij
lMi.>itiiill srttlnl l.y
;af;t' as lAivutiir 1/
ilcriiM'il aihlaii|i|ir,i ,
;('il iiiislaki' iuC.'> j
liiii iivrr ail lulili-
iivcr tlir saini'laml I
ti'Statiii' liail iiiitut]
ikiiii; liis iiinrtgatr, j
0;/i/rii V. .Si/iiiii/, I
iicil liy inserting ivl-l
•111 eviileiieetiiat tliil
slake. /■'ni;v.</ii' v.f
III was eXeelltfiltiill
;lu' imriiiise iit swiirJ
iratiiiii liy its trnsl
if liiitli jiartiis ihfl
.rt III' IIk' lain! wiiidl
1^1", it was Ik'lil tlutl
■iititleil til a ilnr«l
iUl;Ii a \ii-ivati.' itniiiI
illlil have lieeli siull-|
■JO (liy. ITU.
7 '/.•*.
jMiliey lit' insiiniM, !
Ill llie iiilelitiiiniiillitl
III! Inn mill /."'ii/««il j
•J.'it.
Iiti'iiilier, IHT:'. \n'ei\
V years fruiii tilt lit]
rent iitS'.'.'id, niy;iH(
I' lit e ii'li year 111 KU'k
eniitiiinaiici III tk(
||' .•<'J(M) In lie llMiltH
i,lvanee,tliv Intel
|ni; til S;«l, t'llnjiul
lynieiit ler heli'tnl
L'ainst tlieili'liulalt
iMiilier, 1^T:^ f'Tlkf
ml iile.i.leil till' (;*
■1,1, tint um.LtiIk
.vet, ISTIl, il. Iriliial
Italile iileisettin.;i*lt|
lerini; till' li'ii^"' 1" "<•
111 ill till' li.irtii'>;i»l
\\ as set aaiik' mi 1»,
|iii til ilii >"'■ "'^"1
Iver I 'aliiiii:! in"*')'^
l,er ( anailii til |i»l1«'j
Jwliieli wnnU It
lo Kiiiiiik: iuwriliii«»j
liid it wiw she"" '"'
1045
DEED.
104G
roli.-ase of tliu lamls
Alliiii
till' grantor's intention was to convoy the lautla
ilwdfutely. 'I'l'e conrt onlurod the devisee of
tbo L'raiitor to execute a roh.-as*
LccoritinKto tiio law of Upiier ("an:uhi,
[v. rkinif, :< < 'liy. <)4r).
A ilefii' "f tniMt was executed l»y a delitor, and
I ii mistake in sotting out tlie motes and hounds
i' iHirtimi of tiie iirojterty intended to he cou-
Ive'oil was imiitted ; suhse(|Ut!iitly to wliich a
jrcilitiir iihtaiiied and registered a juilgnient
I,i2,iin9t tlie ilclitor : Held, that the assignees in
tni<t were eiititleii to have the mistake rectilied,
(iiiii that the lien of tlie jnilgnient creditor did
lint attiich uiK'ii the laud. M<-Miisti'r v. I'lii/iji^,
I.M'iiy.-m
111 suits for the reetilication of deeds, the court
inllii«8 great weight to the statements made hy
Itlir answer. <hi the sale of a steam) loat, the
voiiiim gave a hond hinding themselves uncon-
(litiiinallv to procure a conveyance of the vessel
L) the imrchascrs within three mouths, and
(klivereil ]iii»se9sioii to them ; hut the eonvey-
anw wiusiiot iinule, and two years afterwards the
vessel Wiui taken froiii the purchivscrs, upon pro-
cess against the owner, and under a mortgage
pttviiiusly existing upon the vessel. A hill was
foeil liV the vendors to rectify the hond, by
Ijntroilueing certain stipulations set forth in a
Imtuiiiraniluin made hy the hohlor of the ineum-
Ibrance at the foot of the vendor's hond, and
Whii'hthe incumhraucer swore he had made in
Iflrikr that the purchaser might have notice of
|]U» ilaiiii, anil also a receipt given hy him when
(ill inrtiif the claim he held against the vessel.
lie mirchasers in tlieir answer asserted tht't
lev never had intended to ahridge their rights
jiier the Iwnil, and never would have consented
J aiiv stipulation therein to that effect ; and as
L lilteration proposed would have materially
vtoil the rights of tiie iiurchasers to their
fjinlice, and there was nothing inconsistent in
(e iiicts Iteing as the purehiisers alleged them
Ik', the court refused the relief prayed, and
Unisscil the hill with costs. Cottim v. Corlii/,
it'iiy. .V) ; allinned in appeal, 8 Chy. 08.
[The eimrt will not, in favour of a volunteer,
iliT the line execution of an instrument infor-
lilly ixeeutcil, although the relief would he
uitcil to a purchaser for value. Rons v. Foj;
li'hy. (iS3.
ilefenilant, a man of weak intellect, was
^mlulently indueed to execute a (|uit-claini
[iliit certain lind to which he was entitled as
pratlaw, hut no consideration was given for
jthilteil. The land was afterwards conveyed
Ijiiaintiffs ill these suits, for valuahio considcr-
». .\l'ter the la|ise of more than lil'ticn
the (lel'eiulant hrought ejectment against
liliiiiitilTs, and it was <lecided that the legal
^c hail lint passed liy the deed executed hy
The plaintitl's tliereu|ion instituted pro-
(tliiigs in this court, to reform the ilird exo-
^l hy ilefemlant, or, treating it ivs a contr.ict
ly, fur a siieoitic perforniance thereof : Held,
That though the plaintitts had e(iuities as
kchasers for value, yet the defendant had an
pity to set aside the deed he was deceived into
ciitiiig; ami that his equity heing the elder,
Ihavinijthe legal title in his favour, the court
Hil iiiit interfere to give the plaintiffs relief ;
I '-, that though the laches ami iictiiiiescence
lie dcfemlaut for bo long a iMsriwl, might be
a reason for refusing him relief, were he a plain-
tiff, still tlicy were no ground for granting the
plaintiffs the relief sought ; and the court tlis-
uiissed the bill with costs. I/ii-uujkIiiih' v. Arrr,
15 Chy. (110.
On the seiiaralion of tlire'c townships into two
mnnicijialities, the two cor)>orations executed an
instrument wliereby llieoiic agreed to )i,iy to the
other a certain sum as soon as certain nonresident
rates theretofore imposed should liecoiiie avail-
able. It was siiliscipieiitly discovered tliatlliese
r.ites had been illeg.illy imposed, and that the
suiiposed fund would never lie available ; audits
siipjiosed existence^ had been an element in de-
termining the amount to be paid : Held, on
rcliearing, that the eorpoi-atioii was not entitled
to have the agreement altered so as to make the
money p.iyable by the other absnliitely. Arran
( 't'i>ini.ihi/t ) V. A iiiiilxl (iiiil Alli'iiiitrli, ( 'I'liit'ii-
■■<l,i,,.i), 17 (Uiy. Iti.S. See X. C ir»('liy. 701.
Hy a deed of gift from ii father to his daughter
it w;us intended to convey a life estate to the
daughter with remainder to her issue, but
through the want of skill of the person prepar-
ing the deed, the same conveyed the fee simple
to the daughter, whose inte'rest was afterwards
sold under execution, tin: sheriff' at the time of
sale distinctly stating in the presence and hear-
ing of the jiurchaser that t\n: inti^rest ho was
selling was only an estate for life of the defen-
dant in tile writ. The imrchaser afterwards
claimed the fee in the lands under the terms of
the deed of gift and the conveyance from the
sheriff'; wliereu|ion, and uiiwardsof lifteen yeai-s
after the shcrill's sale, a bill was tiled by the
children of the daughter, seeking to have both
the deeds rectiticd in accordance with the true
intention of the grantor, to which the ilefcndant
demurred on the grmnid that the ]ilaintiff's had
not shewn any interest in the hmd :- Hehl, the
plaintiff's, though volunteers, had such an inter-
est as entitled them to have the deeds rectified ;
and that their delay in tiling the bill was not
such as should deprive them of their right to
relief. To such a bill it was coiisidereil that the
grantor, in the deed of gift was not a necessary
party, imt that the grantee must be made a
party, as she had :i right to insist that the deed
had been correctly drawn, and the defendant
had a right to have her iiefoie the court in order
to [iroteet him from another suit. <'idi>ert v,
/Aiilii/, 21 ("hy. 470.
The ]ilaintiff' was entitled to a conveyance from
defendant of halt a lot of ItiO acres ; defendant
wished to give lifty .leres only. A friend of
both, aware of their mutual rights, was reipies-
ted by the pl.iintitltu obtain the deed as el.iimed
by liini ; lie |iroeuied the defeiiilant to execute a
ilecd which eiiiiveyed flity acres only, and which
the ilefendant executed in thai belief, as this
person knew ; Iml he tliouglil that it really con-
veyed the half lot or the SO .-icres. to which the
plaintiff' was entitled. He took the dei'd to the
plaintiff, telling him that it conveyed the 80
.acres, on which the pi liiitill' accepted the deed ;
The [ilaiiitill' was not then aware of theditt'erent
belief which the defenilant had in signing it : -
Hehl, that the )ilaintiff' was entitled to have the
deed corrected, and made to embrace the 80
acres. McOonnlit v. Fenjiuon, 17 <'hy. ()5U.
Where there was a contract for the sale of a
reversion, and the de<!d puriiortetl to rclinquidli
il ■
. il
' ^ I
r ,
! . !8
i ii " .Ml
1047
DEFAMATION.
ji...
and (juit claim the property, with no other wortls
of transfer, the court held that, in order to re-
move any (h)ul)t, the vendee was entitled to have
proper technical words introduced. Voltnr v.
S/uiii; 1!) Chy. .J9!).
Where tliere wa.s a material error in a con-
tinuation deed of landii sold with the sanction of
the court under ('. S. U. V. c. (iO, an application
made after tlie repeal of that act for an order
authorizing the execution of a new deeil was re-
fused. A'r l'ii!/<if /'ri\s/ii/li'ritiii ('(HKiriiinliim <ij'
Loiitli.n, (i r. J{. 1-29.— Chy. Chauib.— Holme-
8te<l, J{(i'irit'.
See BowHcll v. Itoijilcn, 2 Chy.
Cntthiijlmin v. lioiilttin, (! Chy.
]Viijl<- V. Si'tli rlii'ildii, 19 Chy.
Hdijnix V. (ti/li-ii, '2\ Chy. 15, p.
of (r. Under these cireumstancfs the 1
'>57, p.
1038
18(), p.
1038
512, p.
1038
1039.
VI. Revivinc! Deed.
10«
against McR., was dismissed with riwts, Im't!!
being consitlered that under the plcidii,,,', rt'i
might iiroperly be dven as aL'ain^•,t K., ■^\^\^'^^^
the bill was not tiled principally with that nliit,;
K. WiU) ordered to ccmvey to thf lilahitilf ^
receiving compensation in respect >ii hi, suiii,,''
of G. , not exceeiling the amount wlii,.), y,* J
agreed to ])ay in the event of his tailiiir td I'n
vide (t. with supi)ort, the plaiutill' as aaiiiht '
lieing allowed only such costs as hu wn'il,] i^
been entitled to if the suit had lifun instuii
against him alone uj)on the c(|uitv cxisjui , J
tween himself and K. ^WWA ,s V 1/,/',,' *
10 Chy. 473.
Where a mortgagee loses tht' liKii't^M^'f ,l,.eii ;
he is bound, at his own expense, tn tnnijsl] t|,, j
mortgagor with such evidence of thr hisses tli
mortgagor may rei|uire to pnnUiri' in im,,^
dealings respecting the proiicity : and with ,,„
indemnity against any dcni.unl third inr-/
may have actjuired, by de]iii.-it uf the i\m\
otherwise, to the money, or any pait tliun,' I
McDiiiudd \. H'liif, 15 i'liy. 7'.'.
.Vfter the loss of a iiiiu'tj;aj.'c ihid, the
inMitl
Semble, where a deed contains a covenant tliat
a wife shall release her dower in consideration of |
a settlement nuide in her favour by a deed of ■
separation, and she docs so after reconciliation j
and subsccpicnt se|)aration at his instance, the j gagor offered to pay the over-iliiu mtiTLst, miaji
deed is thereby revived. Mr Arthur v. W'lhl, ct \ affidavit being produced that the iiicirt^'aj/w li*ij
«/., 21 C. r. 358. I not parted with the mortgage. Tin' ailiibii
j Wiis produced accordingly, but the ninrt^W
■ ~" I did not make the payment, an(l a Kill niVrj.
j closure was filed in respect of this and .suIfsi'iuhJ
l&M^^
VII. Lost Deed.'^.
Where the plaintiff was nonsuited in an action
upon a bond which had been tiled as an exhibit
at a previous trial, because he was unable to
produce it, the nonsuit w.as set aside and a new
trial granted on payment of costs, the bond j
having been afterwards found. Muirhecul v. J/e-
DoiKjall, H. T. :: Vict. |
Where an attorney's clerk had lost his articles I
of clerkship, he was sworn in on an affidavit ')f ;
the loss, and pro<lucing the usual certificate of \
service. In re Lorhnj, M. T. 2 Vict. <
fj., in consideration of his support and main-,
teuancc, conveyed to MclJ. certain land. The
arrangement fell through, and the land, it Wivs
alleged, was reconveyed by a deed, which w,as
supiiosed to have been lost, and which contained j
a covenant for further assurance. Before such I
reconveyance, however, (i. made a similar ar- i
rangement with H., and Melt., at the instance;
of (i., conveyed the same land to H. This
arrangement was also abandoned, and a ne>vone
.similar in its object was entered into between!!,
and M., which lasted for upwanls of six years,
and the conveyance executed pursuant thereto
was considered effectual. With full notice of
this K. also entered into an arrangement with C.,
and with his assent took a c(uiveyance from H.,
which gave him the legal estate. N. having
died, his son tiled a biU, alleging the loss of the
conveyance by McH., ami seeking to compel the
execution of another deed by him to (•. in place
of the last one, or a conveyance to himself as
claiming under (t., j)raying, also, that K. might
be ordereil to join in such conveyance. At the
examination of witnesses the supposed lost deed
caine to light in the hands of the attorney with
whom it had been deposited, but its genuincuess
was denied by Mcll. K. had supported G. for
some time, and in his answer sought to avoid the
conveyance to N. , by alleging iusuifieient support
defaults : — Hehl, that the plaintitls must ii(3i|
the expense of ]ir<iof of loss, and the exinnstij
the indenmity l)ond, but were entitkd t» thJ
other costs of the suit. /'*.
F.
II.
HI.
IV.
V.
VI.
DKKAM.ATIOX.
PruviLE»!Eu CoMMrsicvnoNs, iw;i.
Cii.vuciE OF Indktaiii.k (Ikfhnck, lO'ii.
AFFKcriNii Pehsons in Thahf: hh Brsi.|
NES.S, OH IN OfFKF, I0.')4.
I.MMOUAI.ITV .\N1) CnFITNINS Foil Siii ItTl i
10.55.
SlANDEK (IF TlTLK, 105.').
Action fok.
1. amrralbj, 104C.
2. Detlaratiim.
(a) Vrnur, 1057.
(b) /iidiirt wriil (IIkI /iiiiikiiiIh. W'.
(c) Statriiiciil (i/ Difiiiaiihrij J/ii!/v,|
1058.
(d) Otlwr CiLiin, 1059.
3. PteaH of JuMllJicatloii, 10.59.
4. Eriikurr.
(a) Proof of Difdmnlnrij ihiU'tsik
InHHindu, lOtiS.
(b) Under the Oeiimil /.«/«, lOtld.
(c) Of Midiee ami m Aijijmmt'm'»
MitiiJid'iDii iif Dttiiinij" '""
(d) OfCharnrtn; mil.
(e) Other Caxeii, 10()7.
r». Damaiji'K, 10(>8.
(5. CoHta, 10()9.
7. A'cw Trial— See. New Trial.
,;i'"i,
\n ■l049
VII CbIMINAI. PROtEDUBE FOR LlBEL,
[Vlll. Al'OLOOV, 1071.
IX. MlSCELLAXEOUS CASES, 1071.
DEFAMATION
1069.
1050
I PRIVILEfS^n COMMI-MCATIONS.
In.uti.ms for slimier or liliel it is tlio province
f tlio jutlj
I of uttering
statcniciit would not be the leas privileged if
made hy mistake to the wrong ciuarter. Mr/vh/rr
V. M,li,ati, 13 (J. B. WiA.
Quivre, whether u eomniunieation of this na-
ture, nijule by an inhabitant of any other part
of tlie province, would not be privih;^e<l. //).
Ditl'oreiU'i's liaving arisen l)ctwecn a municipal
council and a mail company, of wliich the iil lintifl'
was a director, ilcfcndant was appointccl by tliu
council to act as their attorney, and to examine
f tl ■ jmlk'e t" determine whether tlie occasion
f ittoinL' the shvnderous words, or writing the
ri 11 matter comiilained of, was or was not tlieliooks ot tiie company and rejiort to tllccoun-
• l"'*.,!- ancl if pnvilcged, in theabsenee()f evi- cil. Tlie <lircctors were then negotiating with
mivmt-'' I • ' I ^^^.^ jj^ nothing to be left to ' the Trust and Loan ('omi>aiiy for a loan tor tlie
(iHiifUiil ni'"'>-y ' _. , ,, _" . ,, , , f ,, , 1 .I..,' i....i. :.. .1
Mi'/ii/ii' pur]ioscN of the road, and det'endaiit, in tlic name
tr%m- 'IS to lioiia tides or otherwise. _ _
\ MC'iilhcli, - K- 't •■^. "^'JO. reversing the deci- ot tlie linn ot whicii he was a mem))er, wrote a
1 l' ■ IS (' 1'. "tS^. i letter to that comiiany, saying tliat tlicy hail
' "^ " ' ' j been reiiuestcd by three of the councillors of tlie
townslii)) to int'cirm them tliiit the loan was con
f
WluTO tiio wolds were spoken on an oocasmn ! t„wnsliip t.. inform them tliiit the loan was con-
fheii litliir from public duty, private interest, j,..,,.^ t„ the wishes not only of the majority of
ortla'nliitii'uof the parties to each otlier, tlie the 'c.miicil, but of the luaj.uity of tlie stock-
clwr:ut.i-..f the party c()niplaiiiiuginay be treelyi,,,,,,^,,.^. j|,.^j ^|,^, ,ii,.,,^.t„,.s were strongly -sus-
di>cussc.l, the jury must Imd express inahce, j,^^,^.^.,, ,,f disappropriation of the funds i.f th-
nnoiuvideiice .sutliciciit to warrant tlieir tinding, ^,„,„,,aiiy, and refused an account of their cx-
Wiif defendant can be pron.uinced gmlty. - .,^,,„|it„-.^. j.,, t,,^, ^^,„„„^.jl ,1;.^, " A]] „f ^ liicli we
Where the libel complained of is clearly a
nrivikwiU'iiniiuuuication, the inference of malice
Icamiot lie raised upon the face of the libel itsidf,
lia iiuither causes it might be, but the plaintitl'
lBu<t v-ive extrinsic evidence of actual express
aalico; lie nmst also prove the statement to be
lal^c as well as malicious ; and defenilant may
'itiil liuke out a good defence by shewing that
^le W g'l'"^ ground to believe the statement
'biit auil acted honestly under that persuasion.
Hjnlijn V. Mclimx, 13 H. B. 5.34.
in
1"
can ouiselves vouch tor. llespectfully yours,
(signed) Farmer it |)eBla(piieic." It apiiearcd
that the ilirectors of the road company had been
acting in a inanner of which the council disap-
proved ; that defendant was told that a ma-
jority of the council were ojiposed to the loan,
and was urged to interpose and prevent it. It
was also proved that the ati'airs of the road com-
pany were ill coufusioii, and that the council had
good reason for wishing to cheek the proceedings
of the directors : - Held, that the term " misap-
propriation" might be considered in its gravest
sense libellous, but that in this case it was iieces-
Wliere ilefeiidant, a clerk in the receiver- ' sary to shew a malicious intent on the part of
mral s (itlice, told his principal that the plain- ] the defendant, for otlierwi.se the cominunieation
aiiiither clerk, had robbeil him (the receiver- would be privileged, and he wouM Mtaiid excused
mnl.i there being no proof that any money on account of his particular and legitimate con-
il Ken stolen, or that the receiver-general had I nexioii with the siilijectof which he was writing.
*(r ausiieeted it : Htdd, not privileged. Pnii- \ Ildiiiiit v. /)< liht'iidiri', 11 (). B. 310.
""'"'"""' "'■''• ^"^- i l)efendant published a letter addressed to the
A in'titinii to the lieutenant-governor com- \ cilitor of a iiublic iiaper, in which he stated that
publislieil a
ublic paper,
lamiiii! iif the conduct of coniniissioners of the i the plaintitl', a medical practitioner, was un-
jbnrt "I Reiiuests, and char^'ing them with par- j licensed : Held, that the learned judge might
(litv, eomiiition, and eonuivanee at extortion, ; either have ruled this to be privileged, or at all
icii liv ;i imiuber of persons, and jiraying for | events have left it to the jury with strong cau-
iv.«, is absolutely privileged, even thougTule i tioii as to the usual liberty of discussion .illowed
Bi.liuit tail circulated it and been the means of ; in all matters of public interest, and with obser-
fctaiuing signatures to it of individuals who | vations somewhat like those in the charge in
Bis imtliiiig of the facts stated in it, and sup- j TurnbuU r. Bird, 'J F. & F. "lOS. Slinnr v. Lin-
(fcl it to be a totally dift'erent matter. S/iin- | loii, 22 Q. B. 177.
IV. .■lni/iv»'.S .")<>. S. 211.
iAiiimiilaiiit addressed to a public body, or to
lovcriinieiit, respecthig the conduct of an oHicer
kr tk'ir control, is not necessarily privileged.
^.it ili'iienils on the motives with which it was
Ule. CiirUtlv. Jdckmii, 1 t^. B. 128.
All action for liliel contained in coninmnica-
Defcndant, being clerk of the peivce, in eonver-
.sation with the sheritl' as to the medical exami-
nation of a lunatic in gaol, said he would not
employ the plaintitl'. as he had not the governor's
license, adding, that he thought the slieritl" had
nuire pluck than to jisk him after what he, the
defendant, hail written (referring to some article
in a medical journal.) On being apidied to by
ins til the executive government with a view ! one M. on the plaintitl "s behalf for an apolo^'y,
olitiining redress, cannot be sustained, unless ! ho repeated that defendant was not a ipialihed
? IKirty iiiaking them acted maliciously and physician in I'piier Canada, and couhl not legally
iiractise here without the governor's license: —
leld, that both conversations were privileged,
and that there being no evidence in cither, and
no extrinsic evidence, of malice, there was noth-
ing to leave to the jury. Jl>.
Defendant, a government detective, knowing
that one M. was in partnership with the plain-
ithiiiit iirobiible cause.
iB.i)8.
Roilijtrs V. SpaliUnij, I
rciiresentation by the assessed inhabitants
I a soliiKil section as to the character of the
Kher, maile with a view of obtaining redress,
|a priviiegetl communication, which it is of
lortance to the public to protect ; and such a
I
1051
DEFAMATION.
lH)2
V
>li
\,'\& •
tiff, infonnctl him tliat the iilnintiff waa con- i
iiecte<l witli ii gmig of Uurgliirs which dcfcnilaut
hiul been thu intNiiis of liroaking iiii, luul put
him on his giiMnl : -Hehl, tiuit thu commuiii' {
cation wan ))rivilt'gi.'il. Smith v. Ariii'ifriiiiif, 2() j
Q. n. ■.;. ■ j
S., till' ju'inoiMl manager of the ili'fi'nilant«'
railway, without s|]i'fial instructions of thciliriH'-
tor.s, clisniissed tlio jilaintiH', a contiuctor, for
alk'gL'il ilislidiif.-itv ; ami hy hisdiroetions idicanls
di'scriliing tlie oH'cnce. and stating tliu ]ilaintitl"s
dismissal, were posted up in the eompany'.s jiri
vate olliees, (in some of whieh they were seen liy
strangers,) and in the eii'eular h loks of the eon-
duetors, for the information and warning of the
company's employees, two thousand in nundier :
- Held, aliirming the jiidgnieut of the court lie-
low, 1. 'i'ii;it deien<lants were lialile for the puli-
lie.ition, as lieinn an .let done liy their general
manager in tlieir interest ami within the general
Hcoi>e of his duty ! 'J. That the eommunieation
to the em[iIoyees was privileged, as made hy a
person liaving a duty or interest to persons
having a eorresponding duty or interest ; .■?, I'ur
l>raper, ( '. .). of Appeal, I'lagarty, < '. .1. ( '. P.,
(Jwyniie, .1., (ialt, .1., Strong, \'. (V, and I'dake,
V. ('., reversing the judgment lielow, thatthe evi-
dence shewed a reasonahle mode of judilieation,
and no excess sucii as to take ;iway the privilege
or shew malice. Per Hieliards, ('.,1., S]u-agge,
C, and A. Wilson, .1., tliere was excess in the
mode of pulilieation, whieh was evidence of mal-
ice ; 1. 'I'liat this was not an action within Hi
Vict. e. !•!(, s. 10, and necessarily to he hrought
within six months. T< nch v. (triiil Wciti rii I!.
»!'. r,,., .S,S (,». H. 8 ; .V. ('. ,'« g. B. 45-.'.
The plaintiti', who was at one time an .agent of
defenilants, iiaving iM't them, defendant;* jmlt-
lished in a newspaper an .advertisement, headed,
"Caution, " ami containing the words, "N. li. -
Notwithstanding the false statements of (plaiii-
tifl) to the contrary he is no longer .an agent of
this eomi>any. " hefemlants justified, pleading
that after he cea.sed to lie in defendants' employ,
the id.iintitt' stated to .M. & (i. that he was still
defendants' agent. At the trial it appeared that
the plaintiti' after he had ceased to he ilefen-
dants' agent, aaked (i., wlio had lieen insured in
defendants' eomiiany, to insure. <i. helieved he
was still .acting for defendftuts, hut after signing
the ap]ilieatioii discovereil that it w;w to another
cimipany, and the plaintit)' then refuseil to allow
him to withdraw. One M., who had (ireviously
insured with plaintiti' in defendants' company,
said the ]il.nntiir called when the time to renew
came, and heing asked if he came to renew the
p<dicy, said "yes," and exnressed annoyance
when he fo\nid she hid alreaily renewed it with
defeudants. The plaintiti' denied these state-
ments ; Htdd. that thi.s evidence, if helieved,
was sutheient to prove the plea ; and it having
been withdrawn from the jury, a new trial was
granted forndsdireetion. S.^ndile, that the com- ;
munication was privileged ; Itutthis ground was i
m»t taken at the trial. //nlHihni v. Oiititrin
Ffirmiin' Mutual Firr lii». Co., XMl B. mH.
This case was carried to appeal, hut the appeal
wasdismissed without any decision on the merits, I
there heing a misunderstanding as to what took {
place at the trial. //>.
Plaintiff's daughter ka<l b«en in defendant's I
■ervice fur some time, ami after she had left
dcfon<lant's wife went to where she wm staviu
at her sister's, and claimed sonic tliiiii'»uj,
property, as heing taken hy the j,riri Tli|. 1!\
and her sister went and told this tn llhiimi
the plaintiff ; and the plaintill', his wiu- t'
girl, the sister, and the si.ster's liiisliaml «.f
together to defendant. Plaintill s.ml hi. jJ!,
to emjuire ahout the charge against hisiLiui'lit,
hefendant said she had lic'en ^,tcalll|.' ,M .i
time she hail heen at his house. I'hiintilf tl
said, that if so defemlant should imt h.ni- ti-
ller in his service'. Defenilant tluii s.ud tij
the plaintill' was a thief, and that liisfaiiiilv«>,
all thieves, and that tin y wire all laiiviUirt
the same stick ; Held, not a privile.'c
ideation, .so as to reipiire ])roof of i\u[\
Milln- V. Johthiloii, i'} ('. P. ,"i,SO,
See./oHc.'* V. Stiinirt, T.iy. 4,"i;t, p. |(r)4.\„.„,
Vf flilliiiiil, 1,S (). B. .m p. lOiu . lii.ur,\
Aim,/,; !•_>('. P. 1!», p. |0(!(i.
II. CiiAmiK OK Imi|( rAiu.i: Okkksik.
An action will lie for wonls spoken here iul
tie
"iiiiii(.
ni:ili., 1
pntiiii' the commission, in a colony siilijcit tn
British criminal law, of a crime' imnish.ililt
that hiw. Mdllnrli v. (Inilm
I'l
•-' 1 1.
:tti
It is actionid>le to charge a man with [Iwn.aj
mission of felony in a foreign eountrv Si„iiln
fill Ii lis, Wi). B."l.
But words spoken imputing the cnnu. i," ais„m
where the hurning of tlu^ liuilijinj,' ni »hi,J
plaintiff was accused would not have cun.'itituttiil
such crime, are not actionable. .l/r.Vn'. v
Miiijroili, .">(». S. .')lt>.
l)eclarati(Ui, thiit one A. had liccn niuni.ivl
and that defendant hail saiil to the {ilaintill. 'ii
the deceased, " that boy who isimw lviii:.'aliie.|
less corpse on the floor, you have litcii tlio rtwl
of his murder, and his 1>I 1 liis iiijim yi.ml
hea<l," meaning thereby that tiic iijaintilf liaj)
feloniously murdered the .said A. Itcimirn-r.r
because the innuendo was unwarranti'il In tliel
charge : —Held, declaration good, for it «x< iVirJ
the jury to determine whether the wimls nerel
spoken in the sense imputed. ./ii./».,» v. .l/f.|
DoiKilil, I Q. B. I!».
The declaration set out that the |il;iintilf lU-l
ried on the business ami trade of a wi.iwr in,!
&'e., and di'fendant had emplnyeil |>laiiititf tol
weave thirty-tive pounds of yaiii fur him. luvll
had delivered such yarn to the phiiiitill' iMrtliitl
jiurpose : that upon said yarn beini,' wnve. ,t.,it|
liad been alleged by di^lendant th;it live ]i(iiiiiill|
(if the yarn was detieient, and li.ul hciii ielii-I
niously stolen by the pliiiutitl'. The ilicliiratwnl
then, in the third count, alleged that thi' lii!*]
dant, in a certain other discourse nf ami niHTni-l
ing the yarn, and in the iireseiice .uid htaniniifl
divers persons, sjioke and puhlislu'd tlii'l"ll"T'r
ing words, that is to say ; " T. V. (tin: iilaiiitif)|
stole live pounds of my yarn ; it was a rngiiiis'
trick." And in the fourth count the wnnlsurej
alleged to have been, " T. Y. atole live iKiumlil
of my yarn :" — Held, that the words, sp
' |K»llIiUI
Hikt'ii in|
the presence of strangers, ignorant of the pur-
ticular circumstances relating to the yam, wfij
acti(mable. Hehl, also, -on motion iu arrest of
judgment on the ground that the iilaintiff l«ii _
a bailee could not be guilty of larceny, -th«< tin
lOlllf tilings ;lS[(J
he ;,'irl. tin. -.]
.his tiiilhin.ii,,.
ititV, llis Wl,,-, ;;(
r's luisliiiinl, «,,(
iititi s;u,l |a.,;j,,
gainst liis,l,ui^lit,r.
ill ^tt'Hlilis; iiW ti(
i»o. I'laintilf tl„ 1
>>ulil iiMt li.ivf k^
.lilt tin. II s.illl tU
.liill iiishunilyvifn I
■i!iv ill! tuiroUiaj
liriviU.j^nl .i.iiiim.
>tol' rX|IIVS.slli;llKt.|
"iSO.
4."):{, II. 10:i4;\..u
II. Hii:r. ; /;/... /: v.
.MU.i: <lKKK,Sc K.
lis Sliiikill licrr lul
I'lllciliy ^llllil■l.t tutljT
•riiiH' iiiiiiisliiilili. W|
ini, -.Ml. s. :tn.
a man with tlu-niij.!
11 i-(iiinti-v. Smlilixl
ig tlio eriiiiB (it ais<in,|
: lillililillg iif wlii/J
nut ii:iV(. oi>nstit:Uai|
maMo. .1/.-.V."'. v.|
[hail liccii iiiiinlri.l,!
|l til till. |>l;iintill'. <ji|
isniiw iviiii: :i liiVl
lavf liriii till' awnm
il lii'« ii[Kiii yNurl
the iilaiiitilf litll
il \. l>t.iimrn-r,[
iwaiTiiiti'il liv ibej
null, for it w:l' i»rl
Iht till' wiinls «i.re|
;,l. .hirhni, V, J/'-
lat thu iilaiiititr iir-l
railo iif 11 wi'iivur in,l
iililiiyt'il plaiiitill' tol
yarn fiir liiiii. :iiiil|
mI- iilaiiitirt' tnrtliJtj
.nlii'ini; wuvi., .\i'..itl
lint tliat live ]«mitl
ami li:iil ln'i'ii ''''"•j
itV. Tlio iluoLiritmnl
ognl tlmt the '\<:»\
lurMi' lit iiiiil iiiini'mj
joniTanillii'sriniiiil
lllllislu'il till- l"ll'*-[
'\\ Y. (tlifiiliuiitiJII
I ; it was a rMj;tif«liJ
cimiit till' \viinlsa«|
Y. 3tiilt'tiveiKiuuili|
lie wiinls, .ilHiki'ii ii|
giioriiiit of tliepij
Ig tn tilt yarn, fttA
I motion iu af"*' '*|
t the jilaintiff '*'?l|
If larceny, -tli»« '"I
1053
DEFAMATION.
1054
t ,«. of wonl'* inil>iiting an indictahlc (iffunce is I
.u'tioiiahh' iir mit nc-c..r.liiig to the scmse in
uliicli tluv may ho fairly umlurstmHl liy liy- |
»oiulpiMiiiit ac.iiuaiiit"il with the matter to whieh ]
they n'lati'. ) """,'/ v. •>/""". -' < • I'- -'»4.
The iliclaration olmrged as a libel the foliou- j
jin; wiiiil." : •■ Vou have st:ileii gomls in yniir |
iKiiiso, aii'l.viiu Uniiwit:" iiiniiemlo, that ilet'eii- |
lint kill'" ''"■ ^'oi'il^ were in lii.s Inni.ie mhI were I
st..li.n; llil'l. ii'it aitiiiii.ilile, tlioii;,'li simkeii of j
all,! tn an mnlii^'l'i'''. /'"'"■•■<"" v. Cnlliiis, 11 ^
\). H. ii:t.
Iii'tliiratiiiii (or .ilamler aveneil that ilefemlaiit
u.siil ami inihii.'ilu'il the wonl.i, " ( >lil ( irotV inaile
fiisewritini.'''," niraiiiiig that the ]iiaiiitill' t'ofireil ;
wntiiii.'*. *'■• '■""' "■"" P"'t.^"' h"^'»'i'.v : Helil.
,.,kkI, iiiiili'imii'''"''. 'i'-* ><hewiii.u a u I eause of i
ttiiiii I'l'i' aeiusiii^' iilaintill' of forgery, drof
\- Ih-icbr, U'. v. IM.
Woiils iiii|iiitiiig to the |ilaiiitill' the haviiis,'
ukiu a falsi' oath. Imt not in any jiidieial luo-
imlini.', Ill' i"i '"'.V oi'i'i'''*''iii where it would he an
iiltiiHi' in law, are not aetimialile ; Imt where
till' jiiiy I'll fineh a eliarge gave C2 Ids damages ,
tlic iiiitit refilled a new trial in order to give
ilii'iiiilaiit lii.s iiists, hilt arrested the judgment.
//,»//« V. //";//!. I <■><.>. H. .".IS.
ehiirgud defendant witli saying
it the time of the eleetioii liad
[iniiierty to the |ilaiiititl without ,
Hid that the iilaintill' afterwards
took it from him without (laying
adding, "The fact is. he is a
illaiii anil a tluuideriiig thief :'" Held, not
;utiniialik'. Fi lloir.s v. /liiiiln; -JO t^. H. :»8'J.
■liiiliiinii', you whore, and steal more pota- 1
twsiniin lV};gy's lield, and steal niore ehemises
fmm us ;" Held, aetionahle, for it iniimtud |
that the iioi'sim addres.sed had previously stolen j
other thiiif,'si if the same kind ; and the potatoes ^
niiilit liave heeii severed, and so the sulijeet of ;
Umiiv. Ifiiiiliril ii.i: v. Jfiiithr i-f ii.r., •_'.") {).
I \ii \
I r» a ileelai'atiiiii iniitaining six eonnts, eaeh [
liarj,niig iletVinlaiit with having aeeused the .
ylaiiititl iif iiiisaiiiii'o]iriatioii of moneys entrusted i
to him lis trnstee, defendant jileaded not guilty, j
ciilyiaiiil the jury gave a general verdiet for;
iWiO. Ihi niiitiiiii lor anew trial, the sutistantial j
iiimlln'ing that the verdii't was general, while !
•miieiif the euuiita Were defeetive :- Held, that
ifsii, the lUiiiMT eourse would not he a new trial
hilt atrial lie nnvo, whieh might he ordered on
niiitidH for a new trial ; hut held, that eaeh eount '
isehiseil a sntlieieiit eause of aetion, for in eaeh '
;he ilefeiulant was eharged with a liiisdenieanor,
witliin the ('. S, V. e. !('J, s. "tl, and there was 1
It" [ilea ilenving that he was a trustee ;w alleged.
p>(M V. 'M, •.'.-) q. K 188.
Held, that u iluelaration iu slander for calling
jdefemlaiit a "siidimiite, " suttieiently iniimtud
Ithe charge of an iiulietuhle otlenee, without any
miueiiilo. But if this were otherwise, defendant
|Liviiig by his iilea justified the words as imput-
'mg the statutiUile erime -.—Held, that an aniend-
nent, hy aikling the innuendo, aliould have been
llnweil. Aiiuii. 29 Q. B. 45G.
Heclaratiiiii
that "lie M;
t; iiii'rti:.i,i;ti' hi.s
[t omsi'li'iatii'ii.
foral'iseil ami
anything, am
See Cutvr/fi/
11063.
v. Cam-kif, 3 0. S. 338, p.
Tir. AFKEcriNi; Peu.sons in Tkadf. or Bisinks.-*
OK IN OKKK'K.
Where a paper contains nnitter that is grossly
lilielloiis per se, and without refereiiee to any
particular situation or otiice to make it so, it
is no olijection to a verdict upon such lihel that
the ]ilaintilt' tilled no such otliee as ineiitiniicd in
the declaration. Nor is such lihel excused mi
pretence of its heiiig a I'oniial application to the
licad of the dcp.irtmeiit for redress oj gricvaiucs,
the plaintill' lii'ing a piistiii.istii'. .\iid cliarj;iiig
a person with violating a |iulilic trust, are words
lilielloiis |icr .sc, and do not rcpiire connection
with any particular ollice ; an otlicc may lie iii-
Iriiiluccd as an explanatory circumstance, ./nuis
V. S/iirar/, 'Pay. 4'f',i.
The lirst eount set out that the ]ilaiiitilV was a
trader in the ]iurchasc and sale of Ii.iid, an I in
li'iiding money: and that defcnd.'iit had nir-
chascii a lot ^^f land for himself and the )ila'iititl"
which they agreeil to divide hy lot, one to taki!
the I'ast and the other the west h;ilf, the l.itter
liciiig of most value. And it was allcgi-d that in
speaking of the plaintill in reference to his said
trade and to the liawiiig lots, defendant had
asserted that iiie /'iiis wen' preiiared liy the
plaintill' in such a way (explaining it) that defen-
dant was piecliidcd from getting anything hut
the cast half. In another count, after stating
the same trick, defendant was alleged to have
added, " It then struck me I was swindled."
.'\iid in another he was said to have prefaced the
relation with, " He cheated me out of 100 acres
of land," and concluded liy saying, "so ho
cheated and swindled me out of the lot :"-- Held,
on demurrer, that no cause of aetion was shewn,
for the Words alleged in the lirst count could not
lie treated as spoken of the plaintill' in any trade
or husiness, Imt in a pii\ate transaction ; and
the additional words stated in the other counts
were not of themselves actioiiahle. Fi IIch-ik v.
///(///-(', 'JO (}. K ;i8-_'.
i'laintitl' and defendant were tailors, the latter
also selling dry goods. I'laintitl' went into de-
fendant's shop to liuy cloth to make up a p.iir of
trowsers for one A., who was with him, when
defendant said to A., " Hon't you have anything
to do with that man ; that man will roli you:
he is a rogue." He also asked A. to let him
make the trowsers. The jury were direct'.'d that
the words were actionalile if spoken of the plain-
tiB'in the way of his trade ; and a verdict found
for the plaintill' was uidield. S/niiiiiii v. < liix-
li'ihii, -2-2 ij. n. 20.
The plaintitl' alleged that he was a eonimission
inerehant buying wheat, and that defendant
simke of him, in relation to his said trade, "I
sold wheat to Mr. .Marsden, and he cheated me
out of two bushels of wheat, and when 1 went
to try the scales, he tinger-rigged some screw
alsnit the scales, and threw on some weight at
the same time, and I will not patronize him any
more ; - Hehl, clearly a slander of the ]ilaiiitit)'
in his business, .I/k/'w/ch v. Ilfiul) rxou, 'I'l Q.
H. 585.
In an aetion by husband and wife for a verbal
slander of the Litter, not autionable without
special damage, the atlidavit stated only that
persons not named hod in eonseipience with-
drawn their custom from her husband, who was
a tailor. The learned judge expressetl surpiise
(uid regret that au arrest shuuld have been
I!-." '.;
Hilt
i
::,;(«
. Jipi
1055
DEFAMATION.
10,V;
m^'
! r''-'^
oriU'iccl (III siu'li Mtuti'inuutH, hut Ht^t it iiMiik' nii
the gnmiiil of irregularity uiilv. AHiniiii il ii.i-,
V. Ktit.'trl, ai*. I!, no. C'. L. C'lmiiili. Hiigurty
See ;,'».«.// V. iriM<.s '27 ii. 15. 280, p. lOil'J.
IV. Immokai.itv ami Unkitnks.s kou S(«iKrv.
llcM, jior Itiiliiiisdii, ('. ,t,, uiid .loni'H, .F., tlmt
wiirtls iiii|iiitiii;,' tiii' criiiu! of iii('i'.st to a |iaiil
pri'iii'liirnr lay ixlinrti'iof tlu' Mi'tlicidisK 'liiinli,
lire of tlii'iiisilvi's ai'tioiialilc, witlumt .s]ii'cial
(luniano, on the gruiiiiil that the tfiidcin'y of tlii'
slaiiiler is to in'c'isioii tlii^ 1om.>* of iilaiiitiil'.s t'lii-
pliiyiiii'iit or oltict', even tliipuj,'li it « as not spoki'ii
uitli rcfcn'iii'i' to till' olliio. .M.'uaiilay, .1., ami
Hagi-'rnian, .1., diss. S/urr w (inrihur, <> (>. .S.
Cl-J
Sayiiii,' nf a Methodist lH'cadicr, tli.it he kfiit
coiiijiaiiy with a prostitiiti', and di'ffiidant (diild
])idvt' it : Meld, not aetioiialilc, at all events
without sjieeiiil d.-iiiiage. lirnv v. Sn'ils, 'I'M),
n. '.14.
Ueilaratioii, that the plaintilV was and is a
elergyiiiaii of the ( 'hiiivli of Knglaiid, and that
the defendant falsely and iiialieiously siioke and
piililished of him, in relation t<> his said (irofes-
nion, " lie will ;,'et drunk ; I have seen liiin
drunk," meaning tliereliy that the iilaintilV was
an unlit ami iiii|iroiier iierson to exereiso his said
fivlliiig, wlierehy the iilaiiitiH' was injured in his
good name, kr., and shunned hy divers persons,
withoiitany averment of s]iecialclauiage : Held,
on denimrer, deelaration had. '/Vi/Zn v. Wnhs,
3,S (,>. |{. 47!).
V. Si.AMir.i! ov Trri.K.
.'\n action for slander of title will not lie
wlieii the alleged slander is siiokeu hona tide and
in a.ssertion of right. Jinii/fnii v. Sliii li/s, 3 ().
B. 21.
Deelaration for puhlisjiing of and eonoeniing
plaiiititr, and of and eoneermng hitn in relation
to his Imsiness, anil of and eoneerniiig certain
letters patent and the invention ))atented, and the
plaintitl' as inventor and proprietor thereof, tlie
following : " ( 'aution to all pei-soihs who may lie
entering into any arrangenu'iits with .1. .M. < '. for
his sell-acting cattle and stock pump, who claims
to liavi.' patented the same in April last, I wish
by this notice to caution the juihlic against hav-
ing anything to do with Cousins or his pumps,
it heiiig an infringenieiit on my |)atent, whieh
was ohtained l)y me in 1H58. I intend to prose-
cute him immeiliately. IJeware of the fraud and
save costs :" Held, that the deelaration set out
u cause of action for slander of title, in the alle-
gation that plaintitl's pumiis were an infringe-
ment on defendant's patent, for which defendant
intended to pro.secute i)laiiititl' immediately.
Held, also, that it disclosed a lihel on plaintiH'
personally in the caution against having any-
thing to do with plaintitf or liM pumps, and in
the words, " heware of the f;auil, ' in relation to
the infringement of the patent. The evidence
shewing that defendant was entitled to a ver-
dict as to the slander of title, and the verdict
for i>laintift" being general :-- Hehl, that the
verdict must be set aside, unless plaintiti' would
confine it to the general issue applicable to the
personal ^mrt of tlie MM. In such an action the
I!,-
attention of the jury should he clji-, ( ttr| t,,
separate character of the piihli. utinn, j|, y"']
their linding one part to he true an. I tlicitl
untrue ; and the damages shoidil \,f si,,.", n
awarded for that iiart wliich is iintin,. < ' ' ■
V. Mn-rill, \iiV. V. 114.
In !in action for slandiT of title, tin- i].,
tioii should not only contain an .dli^'atinn
the words comptained of as coin iviiil' tlic si
are false .ami iiialieiously iittiivd, |,iit ;,|,',
express allegation of some x\ iaj dani.iur rZiili
ing from the slainler ii<-hiii//i/ «//.</, ,;,„;/ i
must aope.ir upon the dei'laratimi tu h,. tji,.,,"'^
iiatur.al and direct coiisei|iieiiee of tlirwiinU •,',
plaincil of. In this case the avciin, nt, -yiil'l"
l)y said M. was prevented from cutvIh' „i,i
ami completing, .'iml letiisecl to i;ui\ (iiu
complete said contract for the imrcjiast. ,,|' vlj'l
l.ind from plaiiitill', aii.l pl.-iimJH lias Iiit|,l',
lost tile s.ale ol said land and the ii.i'' nf tlic i
chase money thereof, and ll,■|^ Keen iiiialilitn.|
and dispose of .said land, and \ms iiirMiiv,! ■1'
lie.ii put to great lo.ss and e\|iciise in aii,| alN.H-
said .•ontract with M., and the eiir,,,-,.,' ,!
thereof, and in and aliout i|iiicliin. tliitit|,.|
said laiKl," was held a sulli, iriirnv,.,!,,, „", *
special tlamage. AkIi/oi-iI \. c hunt. ,■;,[){• \> ,-'
Case for lihel in luihlishiiig a piint,,! i,,,,;,,
denying the idaiiitill "s title to ccit.iiii laii,| „
which the declaration alleged tli.it lie was .stin.i
ill fee, and which he hail .•idveitiserl hirsili. hi'
stating that one C. ,1. had the title, aii,| tl'iat j
suit was pen. ling in < haiicery to establish Iw
iindoulited right. Se<'oiid pj,.,,, (J,,.,! n,,. ^.^^^^
till' was not, at the said time when, \.., siis,,lx.
of fee of or in tlu; land, or any pait tlini.if
Third [lea, that the matters |iiil.|i>|||.,| l,y tin-
defendant were at the said times wli.n, aihl >!il|
I are true in stdistance and elle.t. I'dinth i.l'a
I that the said C. .1. had and still liasaii iiii,l„ul,(„i
right to the laud; and that the dclViul.iiit v.
helieying, as her agent, and at licr iv,|ii,st,
published the aotiee to protect her ri]L,'lit, aiii
without malice. The lil'th |ilca allegnrtliatiW
jdaintitrs only title was hy virtue m' an iii,l,ii
■ ture of mortgage execiiteil to him l.y .nic K.,
who was then seised in fee : that the .s'aiil iii.iui'
ture was given to secure usurious iiitiTcst : llut
the said K. died intestate, and liis Ijcjr )a\<:U
the said C. .1. full lii'ense toeiiter on ainl'i.iviij.v
the said land during her life ; and tliir,'ii|ii.iitlK
'defendant, as her agent, puhlislieil. i\:,., n. in
j the fourth plea.) The ]il.iiiiliir i(|ilinl, lpy«,iy
I of estoppel, a verdict and jinlgiiient in an iu'tiii
j of ejectment brought by him against tlic ilwrn
' dant and one H. ^ ., '^ ...over |iossissiiiiiiiithii
! land, in which it was foi.nd liy the jnnth.itth.'
i said indenture was not illegal r.r iisiirimis:
I Held, on demurrer, second |)le,i good : llinit|ilti
i bad, as too general ; fourth ami tilth |ilia<y,
i for omitting to justify the stateiiicnt tli.it i
Chancery suit was pending, that luiiii; a wri
nuiterial part of the lihel. Scinlilc, that tie
replication to the lifth plea slicHcil aiustiiii|*L
.)/(((•(• V. VhIij, I'-'t^. H. 71.
VI. Action foii.
I. (iiniviillij,
A joint action may he iiiaiiit.iiia'il againitl
.several persons for tlie joint |iiil)lit'atiim of I
Uljel. Brown v, Hirlfi/ et «/., 5 U. S. "34.
Li':' ' is,
10.5?
)L' llilVitcil tn ti.
'■aticiii, ill vii.„,,.
'H' iUl.l tlu-„th9
"M<\ lie Sll,.,.|;Jl,
Ml 111 nil.. r,,„;i
1037
'krl.iri.
lillr. tl
111 Mll,.i.'atl.,ii II,;
\-fyillL'tllcsl;i||,|,!
;';i'|''l, lint al... ,:
•iai il,'iiiiai.M' r, <,ii.
// ■■< II. if, I inn I, «|||,
tiuii t.il... tlicimr.
•<il lli('Wiirilv..iii
ivrnniiit, "mIi,.
I'l'lll CiirVVily ,,;;
t" rai-rv (iiu iii„l
I' imivlias,.,.!' sii,l
intill liiis liitlhtt.
the lis- nf 111,. ||„
lu'iii iiiiali|,,.tM..,l| j
I lia> iiiiMnx'il ;uiJ
I't'iisc ill aiMlal«,i|ii
1 tin- i'iil'.ir,iiii,'i;|
llii'tin^ thr title I.
tirii'iit avcnii, 1,1 ,,.
'Iiiiiili, •.'(! ('. I'. i;i I
IK 11 IM-iiitiil ii(iti„|
to cntaiii laiiil.
1 that lie Was sii.
iTtiscfl tor Sill', aiii.
11' title, and tliat il
iTV tiii'staMisli |,,i|
ilea, that the |i|aiii.[
when, i\:f., sii<nl.x»l
r any jiart tliirc"i,j
•N imhlislii'il liytlu'l
lull's w h,Mi, aiiif
Itlfct. I'luirth
,111 has, an iiikIhiiIiImI |
the ilflciiilant
it lii'i- riv|iust, 1
vl licr i'i;;lil, aii'l
a alli'geil that tlit j
rtiR' 111' an iiuW
liiii liy iiiK' K.,
lat the saiil iiniiii- 1
Ills intori'st ; tint |
, his lifir i;avc t..
tcr nil and i.irii]iv|
ami tliri\'iii»iutfe
isllrd, tVi-., ixsinl
Il i'c|diuil, liy wiy j
;iii('r.t in iiii ;u'ti»D|
luaiiist the ili'lVn I
• piisscssinii iif thiil
y till" jiiiythatthi'
al nr iisiiriiiiK
a j;iHii| ; tliiiiilik j
mil lil'tli pli'iis '
statfinent that J |
that lieiiy a Vtt)'.]
S.iiihlo, that the I
hivvt'd an K'fio\t\»:[
Kdli.
iiaintaini'd .igainitj
imhlii'atioii oi i]
5 (.». ^*. 734.
t(i hi
lldi:
DKE'AMATEtJN. \ms
TliL' iiliiiiitilV iivi'Vi • t lat slu' was the iimthi'i'
c'f one H., mill tlu'ii .iiniilaiiM'il that tin' ili't'cii
iliii.t Will kiiiiwiiif,' this, |iiili|ishi'il in his |i:i|nr
till' t'nlhiw iii>,' litx'l, wliiili .sill' .vvfiTi'il iiii|iiii'ti'il
tluit she was till' iiintlii'i' (if ail ilh'Kitiiiiiiti' iliihl
Xo ac'tiiiii will •il' '•"" wonU si'okeii when tho^y
nlv ret'iT innHin'i'tivi'ly tn sniiic Met whicli. !f
lloniiiiittt'il, wniiM ho 11 1'l-inio. Cnidi// v, '/'limiii.-
<»,i. tHM'. ■-'.•<«•
A„ .,,tti.n li.i- -nil .xl'""!^''' will ""t li»- -WiitiHt \l",\\ ''1'," '"}' *'"' '""»'"•'• "• '"' ilWitiniat,' il.ihl
•^ , f 1 .,tu i,,iMtlv r,i,-,.;,,. V t;Y,.;.,.i * *' "i*' barkers that w.is tin- iiaini' n hi
.>'i(' p "7(1 I'l'lillttil lathii' ; ^^llat w, is his inntlu'l's I I'ltlu'
ff II/., '-.' ^ • ■ -■' • 1 iit'vur kiii'W, HI' have liiiuiit, Imt, I kimw it wa
Di rliiriitiiiii.
(il)
( mil .
idiratliili to ('liaiij.'i' the vviuit' in
1 iiiiiiity wlu'i'c till' I'.'vi'sf III'
the witiii'ssfs '.I'snlcil, aliil
111
ami
All :i|'l , ,
;uti'iii of li'"'' t
actii'ii aril'"*'
„l„ivliy tlnl-f wiHiliI 1k' ;i ^Ti'.it savin;,' of I'X-
iKiiM'. "•'■'* "I'l"""''' "" ''"' J^'i'' 'III'' that a fair
triiil I'li'il'' II"' '"' ''■"' '" """''' •■"'ii'','^'. "will;,' tn
iilli'id iiivjniliic ayaiiist the iilaiiititl', arising
alll-'lll [in j. .'..-' "(^ ^ I ^ .III. HI iiii .i;m 111 ll-ll
fri.iii a l"ilili'''i' t'xcit.'ini'iit (U'casimuil l.y an iiinlt'i' twi'lvc, ami tin
ilirtinii lii!'l tli'ii' t'li'i'*' .V*'!ii''< pifvioiisly ; i'i.fi.iini.,. to siii'h ihiiiul
Kflil. that till' vi'iim niiiHt ln' I'h.'ingL'd, the action (•>('. I', ."id.
1 ,' i>i'iv-!ifi. iiiiiii'v. mill not. ii iii!ifti.|. nt*
I'
._ -lis
I not Kai'kcr." I»iniiiri> r tn tin' ih'riaiatinii, as
! not I'ontainiiii.' iiiiliii'iini'iits sullicii'iit tn sii|i|iiirt
siK'h ,111 iiiniH'iiiln ; lint liilil, ilirlaratinii L-'uml.
.\iii/i-!i,ii V. .Stnriir/, 8 (,t, 11. •2V.i.
\S 11 Tl' till' Wnfds Mpnkfll were, "(ii'i.cn, ynll
have lii'i'ii mail with iiic cvci- siin'c I caiiuht ynii
withyniir ilan;;lit('r, " iiininniln, h.iviiii; si'Mial
intt'i'cniii'si' w itii his ilaiiuhtir iiinlcf tlir ai;i' ol
twi'lvr : llihl, that tlir ih rlaiatinli shiiilliriiavi"
aviTi'i'il that the |il,iiiitiir hail .i ilaii-hti'i' ritlni
niiili'i' till' agi' of ten or almvi' that aj,'i' ami
iimli'i- twi'hf, ami that the wnnls spnki'ii liail
iter. < ! n III V. i'lnniilii II,
Iviiii; lor a private injury, ami not a niiittiT of
.inlilj;. iiitiiiest, anil fill' pi'ohaliilit't's of the ciise
|i^j,i,,agiiiiist the lielief that a fair trial eoiiM m,"
1k' nlitaim'ili aKalk';;i'il, iiml tlio prepoiulcraiu'c of
tiiuvoiiiiiii't' ;i'"' I'xpi'iif"' heiii;i gri'atly in favour
„( till' I'haiiyi-'. Iviilii V /'ii/riii\r< 1'. 1!. •.'10.
('. LChiiiiih. l>alton. <'. C. .(• /',
Whin ill an aetinn foi a liliol eontaiiicil in ti
iiw>l>:ilii'r, till' pl.iiiitill lii.v« the venue in a
lii'inarks as to tliu ell't'i't of ( '. L. I'. Act, s.
Il(», now «'. S. I". ('. c. WX .•<. •-', anil as to the
ili'cisinii ill lli'niiiiiii.i,'s /•. (iassmi, K. I'.. iV V,. .'Uli.
ISImk V. Aliink; I'JC, r, I'.l.
(c) Sliili nil III III' /)ij'iniiii/i,ri/ Muliii-.
\\'hcn wni'ils arc liliolloiis in theinsi Ives, it i.s
not i.eces.sary tn aver that tin y were spoken of
cmiiit\ ili.'^taiit friiin tlnir in whii'li the newspaper —•'■■-• ---'i.i ••.■ ••<.• >.i..i. >..<,< .-^.^ .^|...i», h ..i
isiiiiWiiil ill"! the parties rcsnh., so that the ''"' p'^'i'itiH' i" niiy jiartieuhir charaitcr, or in
ifnlraiivhe fi''«' ii'"iii ''"''i' iiiliucmcs, it will I'l'lcrciiec tn any particular taet. /li II \. SI, inni,
not I* I'liiiiip''! '" '''I' i'"iiiity 111 which the cause
. nf.iitiiiii arose, iiie cly liccaiisc it woiiM he innrc
iciiiivciiii'iit ami Ic-ir exjicnsivc tn try the case in
hht lattir loiinty. 'I'lio nhtaining of a fair trial
linast iivi'fhi'ar t'vci y t'onsiilcriitinii nf cnnve-
lliiuiue. liliu'kliiii'ii v. ('iiiiiiriui, ."> 1'
If. I,, rhamh. Il.ilt. II, <: <: ■(■ /*.
I{. -Ml.
uniiiccs
i:. T. 11 (ico. iv
W'licn the plaintitl' ilcclarcs ag.ainst the ilcfeii-
ilaiit for chai'ijinj,' iiini with liciiii,' "a piililic
inlilicr," with an innucmlo that 'In', the plain-
till', h.'iil ilefraiiilcil the iii''.iic in his private
ilealinys with tliciii," it h: ii.'t necessary !or the
lil.iintir tn aver that he is in .uiy oliicc, trailc, or
eniplnynient, ill which he cm. hi have ilcfrainleil
the pnlilic. M.icuil i\ , .1., ili.- ■. '/'milur \. Curr,
a (,>. I!. :«m;.
The |ilaintit)', a schnnlinastcr, .sueil ilci'einlant
lor lilicl, ami laiil as special il ina^'cs his ilisniis-
sal frniii his school. It appearcil at the trial
tli;it the real eU'eit nf the lilicl was tn lUcvent
his iieiii^ exaiiiineil liy the supciiiitenilciit w itli
a view tn his ijualilicitinii for rcccivinc a rc-
lU'Weil certilicate. 'I'lie iilaintilV applieil at tin'
. , . o trial for lca\e to anicinl the special il.iiiia;^!' to
irial issili'. .Miiisliiiiv. Mr/hwulil, I i). |(. .'Wl. meet the . viileiicc, which wasallowcil : llelil,
A,k'ilaratioii,inthcfollowin.'Wor,ls,.'iHvarie.l !!'"^ the jml«c at nisi prius. hail power tn make
tlmolitl'm'iitiimiits: " 1 saw Peter (mean ""' ■""'■'•'''ii''i'<- ./,i,'/-.m,» v. .s-,»/'-"'' » <.'• ''•-^'•
igtlu'iilaintill) with the heifer," lineaniiii,' that As to theilegree nf certainty formerly rcipiinil
If ililiiid.ant .siw the plaiiititr c init the crime in niakiii;:,' the colloipiiimi r'ci'er tn tjie iinlnce
si.hmiy with the heifer); 2. "! saw I'eter nient, .''^ee Murl.rv. D'nilut, 4 (,». I'.. Ul.
ithtliiliwfirjii.st at the cross way," (meaniiiL' ,,,, , „ , . ', , , ,•
• • ■ • " I lie wnrils allct'eil in the ilcclaratmn were
" It's my sniil's npinion that nothin.L; elf*!' kept
that gill in the linnfc last winter In.* taking
nieilicii, ;nltani»li the yniing haker." liinueinln.
that the plaintilV took meilicine to procure alior-
tion : llehl, that the ileclariition eliaigeil agooil
cause of action; also, that the ilaniages (fUM))
though large, were not umler the eircuinstances
I excess. ve. Millir v. lloinjliUni, 10 (i- H. ,'148.
(Ill liiiliii'iii III mill liiiiiii mill.
[Tlie iiiiliit'eiiieut appears now tn he
ury. liyC. S. V. C. c. HW, s. •_>. |
U'linls laiiiiut 111' ainpliticil in their meaning
llivuiiwairaiiteil inniiciiiloes. Mml, i/ \. Xirlml.i,
|i'(i. li, •.';(.•).
I'lea negativing the iinlueeinent only : llehl,
bail, oil siR-'oial ileiiiiirrer, as temleriii;,' an iniiiia-
t tho ill fuiilaiit saw the plainti")!' then com-
Bit the iiiiiie id smlouiy with the ilefemlant's
tati-n ; 1 " I have seen Peter .lohnsnu with my
kciiir; IVter.hiliiisi.u is the man that iliil it,
Mil 1 oaii .swear within a foot to the grouml
ii'iv' he stiioil when he eomiiiitteil the crime
iliinsaiil : " Helil, hail, in arrest nf juilgment,
H the gn.uiiil that the wonls did not of them- .
\es iimKirt what was charged as tlieir mean- !
\es
{, aiiil that there was no surtieient inducement ; Held, that in tiiis case a siiHieient cause of
.^lenient ot prefatory matter, to which the ' action for lil)el was stated, the article comi.laii.ea
mieiiiiwau) the ileclaratum could refer. Roh- | of charging the plaintiff with lieing coneerned
>»n,l.j.,a.«!. Johwon V. He,l,je, 6Q. B. 337. ! in a system of plumlering visitors to the Falls.
^7
' ;l-
1059
DEFAMATION.
m
','!■•«
Lrp..^i,.,i|
m
(ind that there w.ih n<» groiunl for iirreHtinj,' jiulg-
iiiL'iit. Hiiniri V. Ihir'iM, 14 (}. W. 'J7I.
Suvcriil L'iPiiiitH for rt'in'iitcd uttcruiiL'UH of the
alli'^L'il Hlanilur on thu wiiiu! occiMiou wuru al-
lowf.l. /•V„7»,s V. MrClilliniil, 4 1*. K. Tti.-V.
L. Clialiil). Uraper.
The lirntanil hi'C'oihI comitH of a ilei'hiratioii, in
an ai'tioti liy IniMlianil anil wife, iOiar>,'f(l MlaniliT
of thi' wifi', conMisfiii;,' of ini|intationM of udnlti'i'v
anil prostitution, without Mfttinj^ out the wonU :
-Held, iliMily l>;iil. Tho thini count was for
aswaultin;,' the wifu, wiiiicliy, &i'. ; ainltho fourth
and fifth counts wcri' respectively for assault of
the wife, per ipiod eonsortiuni ainisit, and of the
huslianil himself. The phiintilt's el.iiiniMl damages
jointly under the lirst four counts, and tlie
husliauil alone under the lifth count. Seiidile,
that the claim foi- claniages liy lioth plaintitls,
thougii had as to the fourth count, was good as
to the lirst three ; hut that lioth i)laintitf's liciiig
expressed in the ileclaration to sue in respctct of
all the counts, though the hushand alone, at the
conclusion, cLiiiucil in respect of the hfth count,
the whole declariition was had. Ilin n it //,/•. v.
McJJi.„al</. -JL' C. I'. I'itS.
(d) Ot/iu- ('ttxi'.'t.
(hir count for slander stated a cause of action
accruing to the jilaintitls as partners, liy reason
of its lieing an injury to them in their joint
business ; other counts in the same declaration
charged defendant with imputing forgery to the
plaintitls a.s partners, &c. : - Held, the imputation
of forgery not heing a partnership imputation,
that the declaration vas had for misjoinder of
counts. Miii-ltji it III. V. yii-/ivl.t, 1 (^. B. ^'35.
A defendant will iU)t he allowed in slander to
single out some of the words of a count, and
denmr to them as not actionahle, while the same
count contains other words uttered in the same
conversation which are clearly actionable. Ma-
eaulay, J., diss. 7V( ///(„• v. Cnn; 3 i). H. ;}0().
3. J'/iiis iif Jiinlijii-iitiiin.
In case for a libel charging the plaintiff with
being a "convicted felon, ' a plea that in a memo-
rial to the lieutenant-governor he had confessed
being guilty of bigamy, is bad, as an argumenta-
tive and in.sutKcient way of pleading a justifica-
tion. Loiii/iroii/i V. J/i/ni/iniiii, 1 Q. B. 17.
To an action for slander, in saying of the plain-
tiff, " 1 am told that Munui was the man tliat
killed the pedlar, and 1 believe it," defendant
pleaded that he was told that the plaintitf was
the man that killed the pedlar, and he did be-
lieve it :- Held, insufficient. Minim v. J/itniwr,
17 y. B. 2!»3.
Held, upon the delaration for libel and the
several jjleas thereto, set out in this ease, that
the pleivB were bad ; the second and third as
being too general, and not stating the facts on
which defendant formed his opinion as given in
the libel of the plaintiff's want of respectability
and influence, and the fourth as not co-extensive
with that part of the publication which it at-
tempted to justify. G'ihh v. iShaw, 18 Q. B. 165.
The aixth count was for a libel, in which
defendant had stated that the plaintiff stood
t.i
m I
charged with the crime of forgery, ((ininiiti i
not against one man, but a whole' 'npininiuui
Defendant pleaded, justifying this vhwu^ V
setting out at length a fraud connnittcil liviil
titl' ami others at an election by f ilsii'vi, ' l*"
books, and uiscrtnig tictitious votcn, ,i||,|r
trial and conviction therefor; and liu Ml',, g
that this was what he referred fn in tii.it iri'if
tht^ libel, ami was understood to ni'.in liV'^il,'
whom it was published : Held, SMlliijcn't V
/iiiri.i V. Iliiiitii; -iO tj. B. ;WJ.
.\m to an assertion in the libel ciinMilaii|,.,| ,.
that the ]ilaintill'_" left New York with his, r,,t
tors in the lurch," defendant plcid, ,| th.it \,.{1
the allegeil grievances the li'iintilV n m,K,|"h
New ^'ork, anil came to ( 'an.-uhi pi nii.iin'iith-
reside without having pai.l or .s;itislii.,l hjs tt„ij.
tors in New York : Held, upon diniiunr, l,a,|
as for all that was stated in tlir ph^u thuiilaiii;,|j
ndglit have left New York with the cniistut
approbation of his creditors. As to ii char.,,
that the plaintiU' "resorted to tiiat stvl,,;
linanciering which in the vcni;iiid,ir \» iMllf^
swindling," defendant pleaded that the iilaintif
obtained from one AV. I!. B. a cirtaiii |iiunii»„r,
note, with the understanding that he, W, \\,^
should at the matinity thereof jiay ih,. niiiiiiii
actually due between the i>laintilf'aMil Iliiiitii
and that the jdaintiff shoidd ntinthf imti'; .mj
that \V. 1!. B. did i>ay plaintilf the aiiK.iiiit
due, but jilaintitl' did not retire tiic ii„tf, anjj
W . U. B. was sued thereon, Sccomllv, tliiittk
plaintilf obtained from one \V, a pioiiiissurviiNti
for !J>200, and upon its maturity a icinwal U
.•ijilOO and SlOO in cash, niion the ex]iriss uinkf
standing that he would retire the .■<'JJ(I Mk.
which he did not, but used and appni|iiiatiil tin-
funds and new note to his own use ; Ihlil, that
the receipt and application of the funds asaL.ve
stated did not in thu first case aniimiit tuMiiii-
dling ; and that the facts of the scnunl a<<
stated as a justiticatimi were stilhiiciith statnl
to entitle defendant to the dccisinn ,ii a jiirv
thereon. Hroini \. limttji, !•_'('. 1'. lo;
I This was an action of libel. The iiiattiirilifill
I upon as libellous was that the iilaiiititf "lla^il.^|
the past twelve months made his painia ri-tp-l
tacle for coarse alaise, scurrilmis juismialitits, J
\ and in some cases gross shmders on privatiiiuli'
: viduals who happened to come within tlit jsilt I
of his displeasure. That he had diag^'eil :iito|
print in the most offensive maiuiur tlii' iiaiiRs oi I
; some of our nn)8t respectable and pliilaiitlirniricj
^citizens, invaded the privacy of tliiir iitr>"iBll
relations, and held their pecidiaritics n]i t» ruli-
cule, and luis, by heaping uiiiiicntiil aliustm|
some of our most valued institiitiniis, cinliavnur' |
ed to turn them into a byc-wnnl ami a lau!,'lii
I stock. There is, no doubt, a geiiftims inipntej
i in our nature, . . . but it is surely lamiiijj
such an impulse a great deal toil far . . ii"*j
j so far lose the sense of his moral taijiitii'leuj
: to elevate into an oppressed lain tiioiiiaiiMiiniJJ
suffering the merited con.sei|Ucia'es of a l"iigj
course of deliberate, deterniiueil, ami ivikleaj
wickedness." Defendant ju.stilieil, setting 'ntj
articles from the newspaper jiulilisliecl li.v the!
plaintiff twelve months previmis to the pub- 1
lication by tlie defendant of the conununii'atiiin j
complained of, and alleging that the saiil niattffl j
published by the plaintiff were false ami null- j
cious, and that the persons so lilwlleil «nj
persons of good name," &c. ; anil it wasr
W'llt'^ I
1061
DEFAMATION.
ior.2
I ''\
\
that prii"'' f'"^'" *''•' articles set foitli in thu
iltiwiill'iirilttl n juBtitii'iitioii for tlu-iillugud Ii)i(.|.
»{tlil, i>l«'. '" iii'<''"''iluiK'o with Urowii ''. Heiitty-
!■>('' I'. I07, that tlie \t\vii whh not lnul for imil-
ti^'iirioiiniii'"^. S/iinirt v. h'oir/itint.^, I4('. I*. 4,S.">.
Hil.iriitioii for u libel t'lmrgiiij^ (k-ffiiiliiiit, iiii
simtiiiL' li'lil olHcor of miltiii witli swciuin^;
li ilrmikiiiiii''*'' "" 'i NjH'iilii-' occasion ami j.'cnc-
I'lci, that tile utatcincnts coni|iiaiiicc| of
wcietnic ill tlic m'nMf in wliicli tlicy were ai-
\f,\-i\ t(p liiivc lieen uhuiI i lleiij, plea l)acl, as
litMUg ti">Ke'iuTal. Hun /to v. /'//•;. . •_'(! «,). li. 4ii.S.
\ iiliii s(ii<iMf,' to justify tlie use of tli" wonl.s
nil
an
r,iiiv
;i si'lise
;lll(.wni. Imt _
^vlliTillly. /■''
('. I,. Cliaml
litl'creut to tiii't iin|(uteil was dis-
■flu. iillejii'il lil'i'l l)uriM)rteil to lie foundeil on
iiil'tiriiritiiin yivcu to defendant l)y "a resilient ot
fendant was i)crriiitte(l to justify
■liiHV. Mi'Ch'lhiti,!, 4 I'. I!. •.':•_».
I iraper
m
if
iljistity yesterday, " meaning the day heforethe
liuliliiatiim. 'hie of the pleas soujjht to he
hkiiilfil iilk'jieil that tlie gravjinien of the charge
wMiiiiitterof " imlilie notoriety and discussion,"
ami that the words used were a fair coniinent,
Jko., anil ni:ide other statements which it was
allw'il wciulil enahle ilefendant to introduce
t'.iileiioo lit irrelevant matters \— Held, that the
ral Iilea, that the imlilieation was a fair
.. ,' ..1. B :..i.i. I... . 1 1
the plea iii* framed and set out in the ease, was
iiuimsistent with the words useil in the allei,'eil
W, ami c'duM not he allowed. f)i rliii v. J/o//-
l,u.Jl>. n. l,">0.-('. li. t'haml..— A. Wilson.'
.i« t" part of a liliel eoniplained of, charging
that the jilaintitl' hail narrowly escaped lieing
iiiiliikil uir perjury, defendimt justitied, .alleg-
ing that in a certain suit the plaintiff, as plain-
tills attorney therein, in an atHdiivit for a ca.
, sa. Iiail swiiru falsely to certain speeitied state-
i ments maile to him by one I{. ; tliat defendant
-' in that suit hill recovered danivges .against the
K ibintitf for f.ilsely anil milieionsly making such
jlliilavit, anil einiteniplateil a prosecution of the
: lilamtiH' fur jurjury, hut w.is dissuaded : -Held,
1 3 giiiiil (ilea. In the second count, the lihel
Talitgeil wiis ill part the puMieation of an atlida-
I lit made hy It., in which he set out tlie action
[jgainst the plaiutitt', and the statements sworn
I byiiLiiiititf to have lieeii mule to him hy I!., and
^averitil that mi the trial of that action he. It,,
I h;iil sworn that these statements were false, as
I in favt they were. Defend int in a jdea to this
[ jiirt lif the lihel, averred that these statements
iniailehy It., repe.ating them, were true : -Held,
Sufficient. In a third count the lihel was, that
Itheiil.iiutitf, a jiractising barrister and attorney,
I was a [lettifoggcr and without character. Tliis
jilefeiiilaut justitieil, by setting luit one matter
lithe suit meiitiiined in the other pleas) in which
jtheiJaiatiti'waa alle<'eil to have acted .as charged
lui the liliel -.-HeM, had, for the general charge
Iconlil not be jiistiheil by a single inistanee. Flfr/i
y. LtiiiiiKni, L'T t^. B. it.S.
The first cuniit set out that the plaintiffs
Iwere watehmakcrs, anil sold certain watches
Imaile for them in .Switzerland, and other superior
Iwtehes maile in Kngland, marking the former
■inth the name of their Krm only, adding on the
other the words, " Chronometer makers to the
P"!^'^ The libel complained of charged in
■wlistance that a large proportion of the watches
Mvettaed by them were merely Swiss watches,
I im])oio(l upon the public a.'t Knglish, and at twice
their true value. In the second count the libel
alleged charged the plaintiffs with selling their
watches made in Swit/eiland a.* I'Inglish, and
thus defrauding the public I'lea to e ich count,
that the plaintills marked their Swiss watches
with the name, " 'rhonias Itiissell \ .'^oiii, Lon-
don und Liverpool," not '•'riionns Itiissill it
Sons," only, as alliLicd : Held, b.ad, as oUciing
an immaterial issue Hi Id, also, that each count
shewed a good cause of action. /i'//,<i/ // i7 ,;/. v.
ir/Z/v-S ■_•: i). H. -JMO.
The dccl ir.itioji was for a libel of the pi liliiitf,
in the following words: "Old S., who wis ni-
tiir.di/ed liy serving a term in the pcnifeiiti iry
of .VewN'ork state.'' Innuendo, til it the pliintiif
had served a term as a rmivict in said pri>'i>n.
Hefeiidants justified li\ setting up a conviction of
the plaintiff of an indn't.ible olfeiice before the
Itccorder'sC 'ourt in Itnffalo, ]iri'>rtothc publica-
tion of the libel, his sentence to imprisonnieiit in
the state prison of New N'ork st itc for two ye.irs,
and his detention there for that piiiod. Iteplica-
tion, that within three months from the .alleged
conviction, and ln'forethe plain tiff was imprisoned
for said term, the conviction was reversed liy
the Supreme Court of tlie st it'', and the |daintitl'
released from ciistody upon the iliargt against
him : — Held, on demurrer, replication good.
/>,(/-M v. Sliinir/, LSC. I'. 4S-.'.
The plaintiff eiini|ilained of a libel describing
him as an ex-penitentiary kiirii from the state
)irison at Auburn, in the stit • of New York.
Innuendo, that the plaintiff had served aterni in
the penitentiary as a convict, to which it was
alleged that he was sent on a conviction for
olitaining inouey by false pretences. Hefen 1 mt
]deailed, as to the words without the meaning
alleged, that the plaintiff, before the libel, liaii
been duly convicted of the offence mentione I,
and imprisoned .at .\nburn undei- sentence there-
for. The plaintiff replied that the alleged con-
viction Wiis obtained without legal evidence, anil
afterwards, on appeal to the proper court, was
reversed and annulled, as defendant well knew
before publishing the libel : Held, on demurrer,
reidicationgood. Held, also, plea good, although
pleaded to the words without the innuendo.
Diirh v. Slrirnrt, •_'!» t^. B. 441.
Declar.ation, that the [ihiintiff wasa eoiiduetir
in the emphiyment of a railway company of
which the defendant w is ni in iger, and had been
dismissed therefrom, and that defendant falsely
and maliciously published of the iiliintiff. in
relation to his conduct while so emiiloyed and hi.'i
dismissal, in the form of a I. nid-liill addressed
til the employees of tlic comp; ny, the following :
" It having come to the knowledge of the direc-
tors of the company tli.it .in envelope was m tiled
at Hamilton, containing four coupon tickets for
passages from Suspension Bridge toI>utroit,which
liiil been previously used, but not cancelled or
returned to the audit oflice in accordance with
the regulations, and which envelope was n '.-
dresseiiin the handwriting of conductor T. Ithe
plaintiff), to a conductor on the New York (.'en-
tral Railw.ay Company, conductors and others are
informed that conductor T. has been ilisinissed
from the service of the (ireat Western Railway
Company. " Innuendo, that the plaintiff ha*l con-
ducted himself fraudulently in his said employ-
ment, andattempted to defraud the company, and
hail been dismissed therefor. Plea, that it is
■>■!
m
10(13
DEFAMATION.
W,i
trill', iiHNt.iti'iI in tilt' ullcfii'illilii'l, tliut iiiicmvcIihh'
U'liH niitili'' ut lliiiiiiltoii ciiiitiiitiiii^ t'lmr coupon
tii'kctH till ii.iMMaifcM ti'iini SiiH|ii'nHi(iii Kiiilgc tn
iK'ti'iiit. wliioli liuil Ix'cn |iri'viiinNl,\ ii^cil, Itnt
not I'.'Ui'i'lli'il 1)1' I'ctnrncil to the iiiiilit oDicK in
lU'iionlanci' « itii the I't'uniiitionx. .iml wliirli en-
VL'lo|ic waM adilri'Msi'il in |il,'iintiH"« liamlw litinv
to a t'ondiictoron tl'c New N oi'k( 'nitral Itaiiw ay
('oni|pafi\. aiiil that conclnrtoi'M ami otlui't* WiTi'
intoi'iiii'il iliattlii' p'aintifl' hiul liccn ilisniiHNcil
from till' sc'i'vii'f ot till' I ii'iat \\ I'Mti'in Itailway
( 'om|pnMV ; lli'lil, on ilcninrnT, that iiMilir I '. S.
U. ( '. t'. lOM, N. '2, till' |ili'a was a ^'ooil clcfi'iu'c,
for that till' (li'fi'iiilanl iimltrtook li.v it to juHtify
till' lilx'l with till' iiiiiiii'mlo. Ti iirli v. Siriui/an/,
'-'!» if. W. .II!*.
Thf lilx'l for which the plaintitl' nul'iI aUcj;i'il
in Hnlistanct' tliat the ]ilaintitr«, a lifi' asxiiraiu'c
i.'(im|>any, hail lost hi'avily on ilclpcntui-rs takin
lit par, ami nearly worthlrss, which they hail
nevertheless continiicil to value : that they were
eoin]ielh'cl liy pnlilie o|iiiiion to eajj in an aetu-
aiv, lint preventeil him from makin;; a proper
valuation : that tiieir history was one of out
rageons extraviiKanee anil ilaii),'i'rons deliility :
that for years they hail trenilileil on the very
veri,"' of disaster; and that they were in an
unsonnd and precarious conilition, i^e. The jilea
to the w hull declaration alle;,'eil only, in su1>-
Htance, that defendants had for several years
niaile untruthlnl annual st.itements : that they
had lost large sums of money liy investments;
and tliat they paid larger lionnses and dividends
and salaries than their true linimcial position
would justify : Meld, tiiat the plea did not jus-
tify all the inatcriid charges in the dcelar.itiiin,
iind was therefore had. Cniiiii/d /.!/', A'cainnirr
Co. v. O'hitiH,, •A-2 I,). H. ,S7!t.
Declaration, that the jilaintitV voted lit a cer-
tain parliamentary election, and took the oath
preserilied liy sec. 41 of the election law of I8(kS,
and that in reference to such oath defi^udiiit
falsely and maliciously spoke, ite. , of the plain-
titl' the words : " He swore to wliat was false,
and lean prove it," meaning that the jilaintiti'
was guilty of wilful and eorru]it iierjury. Plea,
to so much of the declaration as related to the
Hpeakiu'.' of the alleged words without the al-
leged meaning, that the ]ilaiutiir did swear false
in swearing that he was a resident of a certain
electoral division, and ;is such entitled to vote,
&e. ; Held, on demnriv, pica had, liecause if it
intended to specify perjury, it should have dis-
tinctly charged that otlence, and if not, the
general issue should have lieeu pleaded. Slrnr/iini
V. /ill lion, 34 (,». H. .S74.
■Instilication in Criminal Proceedings. See
VII. p. 10(1!).
See .S'(«(//i' V. MrKiir.ii, Dra. 174, p. lOtiti.
4. J-Jriiffiire,
(a) Pronf of Dffamatorji Mntfir mul linuiimhi.
Held, that a declaration alleging that ilefeii-
dant charged the plaiiititi' with stealing a Ixmtl,
without any iiiduceinent as to what description of
bond it was, was not su])iK)rto<l by proof of the
plaintiff having surreptitiously taken a liond for
the conveyance of land to the [ilaintiff, which
he had previously delivered up to be cancelled,
this not being a crime v.nder 2 Geo. II. c, 25.
Caverley v. Caverley, 3 O. S. 338.
Wolds stated in the dcd.'ir.ition an if iiamtj
liy defendant in fhi third person, arc nut ,.
ported liy proof of Mords Hiiokeii liy liiii, j,| J
lirst iH'i'son. riiill'i/is V. Oil,//, ,*) o^ s. 4,s,') '
Where, in ease for slander of the iilainini
steamlioat, it was averred in the decfiiatiuiithi!
certain persons v»ere going on a veyai;!' in \i
steauilioal, and that the slandii'iui.. \\,,|.||, j,^
spoken in the hearing of a particidir ii.'rM,ii ;iii,|
others, liUt no |i,oof was given of tlic Vnyiiui.n,,
of the pci'soiis who were going mi it, unV,,) .i.
individuals in whose hearing the wufil, k^h
stated to ha\c liei:ii spukcu, and ||ii. nu'Vliiiih
for the plaintitl', thecoiiit held that tlic c'viiliijj
did not suppiiit the ih ■ laratioii, and a iirw tn,\l
was granted without c^ts. //uuii/ini, \ If,,/, ,'
4(>. S. •J4.
Whi'ic the Words charged wci'c, •• Wm ihIiLj
the mail," and those proved, " I am imt liliu v.m
running alioiit the country with tiirHcl i||.',.,ij I
and rotiliiii'^ the m.iil as \ou did ;" Ihl,!^ dm I
the variance was fatal. Mi/l,ini\, H;//;,,,,
(). S, I'.Sll.
Where the iuniiendo was "That tlir |il.iiiitii;|
in performing his duties of the ullicc el ticiisin,,!
of a district, li.'ul made a lalsc I'l'tiini iiinliTiitiT
to the government of the aniouut of iisM«iiii|it,|
received liy him," and at tlic tiial tlic HitiuMfjl
stated that they understocid the Wiinli tn iih'mI
that the plaiiitill' had sworii that lie li.ui pulf
over mniicys that he had not jiaid nvcr, u vit.liitl
:fiil' the plaintitl' was set aside, as tlu' iiii'iiiiinl
■ charged was negatived liy e\idciii'i' ./r,/,/,.(„ii
V. Mr Dunn/,/, '>(). H. '-'(Ml."
Where the words chaigcd were, " IliUiu'wiiin;!
the ])laintit}') liurnt my liarn, " iiieaiiiui,', thm'liv,
I that the plaintitl' had feloniously luiiiit ilt'i'iii.
' daiit's liarn, and the words pinvi'il wen., "tliirel
is the man that Imrnt my barn; if lie Mir,, imt
guilty of it he Would imt cirry jiistuls : " it «
I held thiit the jU'oof did not siipimrt the ilcrliM.
I tiou. Viinkriinii v. <<'rilllM, •_>(), 1',. l'.';).
Where the deelaratioii only ehargeil ilefciiiUt
'with saying of the ]ilaiiitiir, " lie luinit Kiinx'i |
I barn," and the proof w.-is that defi'iidiiiit aiiU i
I " because one of the girls would imi manv liiia"
; (,)ua're, whether there was not a fatal v.iriaiu* |
.Mnii/i/ V. Cin-ii, 3 i). 11. ;!SI).
Mere proof of the dcfendaiit sayiiii; r.itii<|
plaintitl", "he burnt Kuo.x's liarii, " witiiniit |iri<ii[
of the eolloi|uinni reS|icctiiig .Mrs. Kimx'skini, j
I alleged in the declaration was iiLsuliiciwit /'»,
I
The words chargeil weic, '•Hestnli'wlu'atliit
j winter." The words jiruved were, "lie ithi'i'liiii- 1
tit!') stole aw.ay the whc.-it in the iii'.;iit, aii'l
j was well aware of it, and could liavo imt liiiiiit I
I gaol for doing it ;" Held, a fat:il val'i.ilioi'. .V' ]
.Xinii/li/ V. .4 //<;/, ,S (,). H. ;t()4.
The last sentence of the liliel a.s set nut V3i.
"'We suiipo.sed that they had hei'iiiiu' aware nil
i the fact,' I've. The senti'iice as ]ii'iivnl w
i " AVe HuppiLScd that they had I ly this time I*- j
come aware of the fact :" Held, vaiiaiiaimiM-
terial. Siiil/ri/ v. Mi-l)vii<j,il/, 10 (,•. li. 113.
The words charged were spoken iitanektia j
with reference to plaintiff's iiualiticiition, a nut-,
ter in which defendant had an intorest. and f« j
which it is of conseijuence to uueourajri' free<l"«i j
of discussion. The evidence was ilouhtiulistoj
the sense in which they were used, m\ the!
i -,«i
(lllllW«>'"
A .!.•
ion HH if iiiiiMW
■Hull, HIT licit «ll|,
•'II liv liiin ill ti,,
.'> <•. s, |h;i,
"f till- iiUiimJ,
II' iU'cl:iriiliii||t|,;K
II it vi'vn;!' ill \l
liTiiii" wnriUuir.
(ii'iil ir |«T»iiii aii.i
nl 111,' \iiyni;i'n"
H "11 it, iiiir lit th-
; till' wiirdu ^t,.^
inl till' iiiry t'c'iiii,
I tllllt till' l'Vi<lt||.|
Ml, .'lllil ii lU'W tn;u
tiiiiill'iii \, Willi.,,,
riTi', •' \>i» riililn'l
" I am lint like V'lii, I
,\ itii Imui'il ili'i'il*.
.liil :' llrlil, tlml
/;. 111. V. iiViii/i,,, .i|
"'I'llilt the lil.illitlil
U' cilliri' lit tlViWll'i'tl
If I'l'tiini iiiiilfriaibl
llllllt 111' ;isM'<MIMItil
I' trial till' witiu'wtil
till' wiiiiU til iiu'aiil
11 tll.lt 111' liiul l«lil|
t (laiil ilVlT, HVl'lilKtl
^iiK', as till' iiu'iuiiiij
CViiU'lKT. J'lhliA*
wi'Vf, "lli'(mi':iimij|
1," iiicaiiiiii;, tlicri'liy,
iiiciiisly lnu'iit ili'lVn.
jircivnl wi'i'i'. "tliire I
liani ; it' ln' "iT'* "'<
iri'v (list. lis ; " it MM I
SIlllliHl't till' lU'ilui'
•j(}. 11. !•-':!.
ily ('liai->;i'il ilcfiU'lat j
[i',' " lie liuriit KiiHii'' I
iiat cli't'i'iiil:iiit ;uMi'i.
mill lint iiiarn him.
lint a fatal v.iriaiw.
iilaiit sayiiii; "i tkii
liani,""itlii"iM"''"'i
,!,r Mrs. Kiinx'sl'ini, I
Ivas iiisiilliiii'iit. /''.
•Hi'stiili'wiu':iti,v!
Iwofi', "lii'ithi'l'l'»
ill tlic iii'Jit. aii'li
uiilil liavc imtliimit
la fatal variance, i'-
lilK'l as si't "lit VJI,
lad lii'i'oiut' w:iff"i
lii.'C as lii'i'Vi'il TO.
Jiiid liv this timi'W
iHi'M. vari;uiivimiM-
Vll, 10(>. 11. 113.
\pokouatanfW*l
(lualiticatiiiii, aiiut-
ail interest, ami <* I
Ito elieniiratlf t'rwM
Icuwasaoulit.iili*;*]
1 were used, wA I
J>KKA.MATION.
Kliil!
laiK
Till' tuiiit, iniili'i- tiit'Ht' I'iniiiii-
II IMtyilll'Ilt of CIINtM.
.Sinlii
In ftii ii>'ti<"i un-iinxt liiKtlniinl aii'l wifi', tlu'
,,„ alli').'«'il till' Hlamlir to liavr Iwiii
b,.,i liv liiitli il''l<'ii'l'"'*''*' "I'ili' til'' I'viili'ini'
,r„v!'il till' »!''■ •''"'"' '" 'l'*^'' 'I-"'' 'li'' ""I'l":
II II tint till' (ll'l lanitinll Uil.s Unt .sll|i|liil'tl'll
,,;;;■„. 'iMi'iiii.'.'. ""-" v. n-.^' .< ".'., h <•.
iratii'ii li'i' li'i*'' "'■' ""' ''"' t'"lli'"iiiK
,,,„ ''I'lii' I'ariiii'i'M, lis :i rla.sn nf lUniliu'crH,
"",',li,,'i,iily iiiit's tli.it I am awari' nf wli.i iillnw
'hiitlii'r il"""' •'"' l"!''!''''*'''''' "' *'"'i' I'i"'li'>'''i '
',h,.„ili riKlit <" "'■'«'' ^'"■''' I"""'""'- •""' '"■•!'■
|,„U -111111111 III tliiir ■iL'i'i-'i'iii- ■ 'I'lii'* "tatf ot
ihiius Iris iiitiiHliui'il a L'l I!"* of iiKii .iiiiiu'wliat
nliir til Iti'l' "">. « I'" '■''" tlii'iiiML'lvi'i^ I'Kiii-
I'Lioii iiiiivliaiits aiicl wlii'iit, liii.v.'M, ami iii.-ik.'
it tiicir liii"!""'"*" '" '"'V^' I'l^i-'li'iiii'l iij"'" ''M'l'.V
■ ',,1 tint sells tlii'iii a luail of wheat, 'rilit* is
,l„i„.|iViisi.ei'ii's lit tliiiiilileriKfJliii.' i.i'rtMrim'.|nii
tin. iiliitt'iiiiii scales, liy uliieli frnm live to ten
Wirli" are taken fln'lii every liiimlreil I.iisIu'Im
\;ht " witliaii iiimiiii'l" that all this \vaj4 in-
to tliein, mill liuriit tliei'cfc.if MiiHtuiii the iietinn ;
lint that ax there Max iii>thin>,' tu shew that ilo-
I'l'llilant waM Npeakilih' nf nr ,'illiiiliiiu t<> the eaiiHU
lit' the I'liilil's ileatli, Mini m>t merely in nfi r.'iiif
til the i|iit'sliiiii wliii was its nil >t her, the innin lulu
Wa.s lint sll|iliiirli'il liy the eviilelne. Ilelil, also,
that the eiiminiiiiiiiitiiin wan imt priMlep'il. Ito'
lii.irks MM fip theetViil iif the''. I.. 1'. .\i't, set',
110, ami MS til the ilei'lHiniis in llemiiiiii|K'M r.
liusm.ii, K. it. \ i;. :U(i. Itlmk v. .1/.'...'/', !•_•
('. I'. l!l.
Ik'HK''-' ■ 1 ' I'.i- 'ii
tciiileil til 1 liai'Ki' the jilaintill with siieli prae-
ji,.i.j. hi till' lil'i'l I'liiveil, at the (ihii'i' niai'keil
\i til II "tiifi this .seiiteiii'i' wan t'nntaiiieil : "This
rtiitei'lliellil>'xs'l''l'''"l''"''.'^' I"'" '"'''" i"ti'i»l>i>''''l
,.|,1, till' |ilatfiiriii seales, w liieli the fanner lia.s
„„t vet leanii'il tn iisi', fur when the lialanee
I ^j1; «;i8 ill use either party perfninifil the
[.dUratiiiii 111 weif,'liiiij;, ami fraii.l was huoii de-
Iti'tti^l " llil'l. ""t a snhstantial varianee, for
thi-'imi' iiiiputatiiiii appeareil npoli the writing'
' mtliiir witlimit tlif part dliiitteil. HeM, mIhd,
tbt tlioiii'li a ilasH iiiily waH iK'nerilieil, the
hlaiiitill'iiiiKlit I't' referred to, and that a verdiit
Ijn hi!< fiivdur was jn.stitifd hy the evidriiee of
l»itiu'«!'i'» wliii Btatud this to lie their iiiider-
Ijtaiiiliiij: aii'l iH^^li'^'f- ■'/"'•'"''" v. Ihmh ismt, U2
}(). iV aW.
Till' lirst I'liimt of tlie doelaration set out that
Jtlif iihiiiititV was an uiiinarried woiiian ; that
Iherv liiiiHii'i'ii a loriiner's im|nest held on tlui
IV.lviif :iii infant found on defendant's premises,
jtliiiji' ileatli till' jury found was eiiu-sed liy
i'Sirtiiin initl exposure hy persons to them iiii-
luiiiwii; iuiil it then alli'j,'ed that the defendant,
Hiking I if ami I'oiiieriiing the jilaintiU', the said
liiiiiiit, iiiiil the iiHiili'.st then being held, said to
II., i\ iiiiistalile attending on the impiest,
|"\Vhyili(l yiiu not bring Miss H. (the plaintitl")
AiMii with Villi? She has had time to ihange
iir aiiln'iinmie. I loiild see the I'liild looked
I'tlu'iiiiitlior, Miss H., liecaiise she hivs red hair
1 jii liiul the child," meaning tlierehy that the
ikintill was the iiiotlier of the said ehild, ami
»il ilt'sirtiil and left and expo.sed it, or caused
Bill |irin'iireil it to lie left and exposed on or near
■ ilifi'iiihuit's ^ireiuises, whereby the child,
Riii;; 111 m tender an age i\8 to be unable to take
HP i.f itself, died in eiinseipieiu'c of being de-
Irtiil and left as aforesaid." In a aeeoiul count
ke ilefendiuit was charged with s.iying that the
)iilil wiis the very image of its mother, and
Hth naming the plniutiir in answer to iv ouestion
w;i.s the iiuither, the innuendo being the
I'iisinthe lirst count. Defendant pleaded
Uy licit guilty. The words charged were
iveil; and the jury having foiinil for the
iitiff:-Held, that the worils, coupled with
|b) I'liili r llii h'l III iiil (mmiii.
Fii ail action for libel the truth of ilifi'iidant'K
remarks is not adiiiissib|i. iiinlir the general
issue. Siiiiill V. MrKi ir.'ii , lira. IT-l.
Ill ease, for slander, defend.int may, under
the gi'lieral issue, shew that the words spcikeil
Were used ill a privileged coiiilillllili'Mtinll. /i'i>'/i-
1IC1/.S V. litillltnll, 40. S. !)■').
Or give evidence to repel the inference of
nialici'. .I/c.Vk'i V. Miuji-nili, :\^). ,s. ."dii, Kinjim
V. l{«llM„ll, 11 1^. 11. 'M\
\ .'Ml the circumstances iiiiiincliately attending
and |irt'ceding the s]ieakiiigof the words may bo
given in evideiice iiiider not guilty. K";iiiii v.
, /{iiliMiiii, li I). K .S7.">.
j In slander not guilty puts in issue the defania-
torv sense imputed to the words, /''i/'/d.-i v. Mi'-
\Vli'H<iiii/, il'.\[.'21-2. ('. L. Clianib. Draper.
i faets, Were eajjable of the luoiuiing imputed
(e) Of Miilii-i mill ill Aijji'iii-iiliiiii nr Miliiiii/'iuii nj'
I Diiiiiiiilis
111 slander the ilufeiidant may give facts ami
eireuinstanccs in evidence in mitigation of dum*
ages. Jiiliiiiiin v. Eiisl imiii, Tay. l!43.
j Slander of the pl'iintitl' as a jdiysician, with
'respect to his treatment of one II., deceased,
whom lie had attended after her conlinemeiit.
Plea, not guilty. I'',videme of statements made
1 by H. to the same etl't'ct as the words charged
was received, though objected to, ;is shewing t11.1t
' defendant did not originate the alleged slander ;
! and the plaintitl' had a verdict of Is. Qmere,
whether such evidence was admissible, but held,
i that its proper recejition would be no gronnil
for a new trial, for the pl.iiiitifl' had iiotwith-
I standing obtained a verdii't, and he did not
I move for smalliiess of damages. AVh/c/'.i v. Miinni<,
•J.-)(,). H. 15,3.
j In an action of slander for charging the plain-
: titV with perjury committed as a witness at a
1 trial between defendant and another, the defen-
! daiit pleaded and tried to jirove a justilication,
' but having failed in the atteniiit abandoned the
plea. The jury were told tliat if defendant
believed the charge to be true, and acted bimfl
tide, and did not make it before more person.- or
I in stronger language than was necessary, they
might consider the circumstanci's of the speak-
i ing, and entertain them as evidence to rebut the
' legal inference of nriliee : Held, there being no
ground for saying that the communication was
' privileged, that this was misdirection. Held,
also, that the jury shouhl have been told that
they might consider defendant's condnct in
! pleading and attempting to prove the justilication
j as some evidence of malice, and an aggravation
I of the injury. FaiicUt v. Booth, 31 Q. IJ. 2G3.
c
1
, 1
: , I
■ ti"
1067
DEFAMATION.
1068
(d) Of riidvartfir.
Held, that in an action of sliinder, evidence of
the iiliiiutitl"s general bad cliaracter is inadmis-
ailde, e\X'n in niitigition of damages. The ver-
dict l)ein^ for §15, ami such evidence urged only
in mitigation, thj court refused leave to appeal.
MifriMv. Ciirrie, 22 Q. B. 470.
In an action for Mlinder imputing theft, defen-
dant liivin;4 plciiled and cndeivourcd to support
j)k'as of justilication : Hclil, that evidence of
tlie plaintitVs gcncrd had I'haracter for lionesty
was properly rejected. Senihlc, per Magarty, .J.,
th it it would liave been inadmi.ssihle even witii-
out tliu justitication ; l)ut tiiat if not guilty only-
he idc iiied, clefcudant may slutw, solely in miti-
gation of d am igi's, and to relmt tlie presum|ition
of m dice, tint hcforc speaking the words it was
a counrion rumour in the ncighliourhood that
defendant had l)ecn guiltv of the sjiecilic otf'nce
charged. F-':,,ir v. \,-,rll/, 24 Q. H. 215.
(e) ()/fi<r fVi.scx.
Proof that 8e\VraI persons practising physic
Ind purchased meiHcines from the plaintiff: —
Held, sulficient to prove an allegation that plain-
tiff was iv druggist, vendor of medicines, and
.apothecary. T'-rrii v. Slurkircnthcr, Tay. 57.
Where in an action for lihel, the plaintiff set
out with an inducement of character as "a phy-
sician and surgeon, licensed tol)ractice acconl'ng
to the laws of the province,' it was held, 'hut
prooi' that he acted as such wasinsulHcient '.ith-
out shewing a license ; imt that, as he was
libelled in his private character, he was entitled
to recover on that ground, notwithstanding the
failure of proof of the other averment ; and the
omission of part of the lil)el, which did not alter
the sense, was considered immaterial. Iliiiiiil/on
V. litirwrll, 2 O. S. 205.
Fii an .action for libel the publication given in
tn'idence consisted of the re])ort of a trial given
in a newspa])er of which the defendant was
editor and publisher, together with his com-
ments thereon. The libellous matter set forth
in the declaration was altogether contained in
the comment, and .at the trial defendant gave
in evidence under the general issue in justifica-
tion of his comments, that the report of the trial
w IS correct ; l)ut the court, considering th.at this
evidence was inadmissible, grante<l a new trial
withiuit costs. Siiinll V. AfrKnizh', Dra. 174.
In an action for a libel published in a news-
paper .ig.iinst the plaintiff in his professional
cipicity ,is town engincicr of, &c. , where a ver-
dict WIS rendered for tin; defend mt on evidence
pre|)onderating gre.itly in plaintiff's lavour, the
court set axidc such verdict, and granted a new
tri I, on p lyuumt of costs. I'lti-rs v. Witl/ufi,
5 ('. I'. 2.S8.
In an action for libel against a surgeon respect-
ing un-ikilful treatment by him of a fractured
thigii, the ipn.'stion w is raised, whether the fail-
ure to cure was not owing to the rough treat-
ment of the patient by his master ; and defendant
desired to jn-ovc that the patient had been heard
to comjjlain of such nsage. Senible, that such
evidence was admissible. Sniiili v. Mrliitiixli, 14
y. B. .W2.
In an action of libel for publication in a news-
paser, the plaintiff's couusul proved the paper
containing the publication, but di.l nut (He jt ,„
read the .article containing the allfgcil liliei
Defenilant's counsel opened his case, ami said h
wouhl call no witnesses. The plaintirt'sinnii,,..]
then moved to have the \>a|ier rcid and ill,.,!
which the learned ju<lge allowed, risii-vinir J^.^/
to the defendant to move to eutir a iionsuit i-
.according to ■'Irirt /inif/iit the iil.aintitl' wis |„,i
entitled to read the papers : - Held, that thu ivi-
deuce offered was not adniissilile, ixrciit in tlu
discretion of the judge trying th.: cause, ami ,
nonsuit was therefore ordered. C';vw.< v Ifichii-il
■■«„,, 13 C. 1'. 4.S3.
5. Diiiiiiijic-i.
The court will not grant a new tria! fur snmll
ness of damages in an action for slander. .l//;,i,
V. 7'//orH^iH,'l>ra. 2.3!l; I'l-ori,,,- y, ,|M'/, T T
2 & .3 Vict.
In slander for accusing the plaintill'iii'janonv,
.and .1 verdict of €150 ilamages, theciniit icfiisiil
a new trial for excessive damages. Hakin.-! v
Emus, 3 O. S. .S8.3.
In an action for HIkjI, the imimtatious lieini;nf
a very slandenms cliaracter, and a |i](:a nf jnsti-
ticatiim pleaded which Wiis not attfm|ited to lio
proved, the court refuseil a new tri.il fur ixtc.i-
sive damages, though they wouM have lnvii
much better satisfied with .a siualler vordiot
((fnt('rer\. Iloffmnu, 15 K). B. 441.
The evidence in support of one of the ]jlea3iii
justification of charge of tle.'ft was very strung'
sutHcient to have warranted a convictiim if tlit
plaintiff had been on his trial. The ilwr^v.
how >ver, was made three years after tlio .illi'mil
offence, fiu- which there had been no pniseciitinn,
and defend.aiit hail no special interest in tlit
matter. The jury having found for tlie pLiin-
tiff, and .'*450 d.amages, the court refu^id t"
interfere. E<l>iur v. Xiirrll, 24 t^. R •Jl.V
The jilaintiff, a schoolmaster, sued the delVii-
dant for a libel, and laid .as its (Miiisei|Uenn'. liy
way of special ilamage, his dismissal fmiu lii<
school ; whereas it a|)|)eiied at the tri.il th it tin-
real effect of the lil)e'. w:ls to ])reveiit Lis living
examineil by the superintendent, with a vien to
his (pi.alitication for receiving a reiicHal (irtili-
c.ate. The plaintiff ajiplied to the judaic i\t Nisi
I'rius to amend his special dan.ag'' tu meit the
evidence, which the learned jiuV'' alluwid :-
Held, on a motion for a nonsuif, that tlu' jmlge
at Nisi I'rius had jiower to iii ^f siudi .iiiiiuil-
ment. J(vk<ii» v. Sini/i-iiiii, 4 (,>. R 'ST.
The second count of the declararioii was k
defamation in the use of words i.ut adiiimiile
without s^iecial damage alleged, ainl the aver-
ment w.as, " whercliy jilaintifl' lust the liiiiiil
%\u]), assistance, ami li<ispit.ality nt Isjiecifyiiig
certain parties.) and many otlicis of his iiiiijli-
hours, divers of whom refused .iinl were unwill-
ing, .as theretofore, to ileal with and tivuisitt
business with the plaintiff, .and fi-mu whu t Iriiiiil-
ahi]), liosi)itality, and business dcdiMjis iilaiiitif
had derived profit and advantage : Ih lil. nmi
licient. Aitlifuiil \. f 7/.»//. , '-0 < '. !'. 471. ■'^«
S. (.'., 1). 10()5.
See Simn v. CMIiml, l."i (^ H. ^^^\ V- I*'':
Miller v. /fow,l,fo,i, 10 «/. B. MS, p. IO.kS ; Hm
et ujc. V. McDoiHiM, 22 V. V. 2!t8. p. 10.)!l.
iitiir
Sill-
lint lileit, i.r
I', iiiiil siiiillit
iititl"> (.■im\btl
•t':iil ami liM,
esiTviiig luave
r a iKiiHuit, li
liiitilf wi< im;
., tliat tlio I'vi-
fXri'^it ill tlk
i cause, luid a
'iKi V. Itirhnfil
tvial for small-
laiwliT. Alkiiif
V. .I'/n,, T. T.
intitVnl larcL'iiy,
le nmit ivlHSi-il
gfs. HiikhiA V.
itations lieins;"!
a jilca lit' justi-
!lttclll|ltt'll til W
trial fur uxies-
imM liavt; lieoii
smaller venlict.
41.
le of the pleiis of
was very striin^'
ciiiivietiim if tiit
il. The oliiirjii'.
i after the alle^i'il
Ml nil proseouti'iii.
interest ill the
111 fiir the liliiii-
•iiurt refti^iil t"
t^ 15. -il"!.
,ueil till- ililVll-
nillsei|Ui'lin'. '>)'
siiiissal friiiii lii^
the trial tint tW
■I'Vi'iit l.is Ih'iii:'
t. with a vif.v tii
a renewal iiTtili-
the jmlfie at Nisi
a^.> til ivi'i't the
.11^,^'e alliiWL'il:-
t, that the jiiite
kf f^iu'li anitii'l-
1! :sT.
arafiiin W;i3 fur
s i.nt aeliiiiiil'le
,. uii'l tiio liver-
it th.; trieii'l-
. of Ojiedfyiiig
t-rs ill his luigli'
anil were uiiWlU-
-ith ami traii.<Kt
il
tv
•mil will' f
lilealinjL's
intiiii'
iil.iiiii
titf
H. Ill, uisiil-
iC. r. 471. J^"
]<,. 33.'., 1).
lOtKi;
10r>8 ; /ir-
is. i>. lOiW.
1069
DEFAMATION.
1070
(). COll(H.
Ill an actimi of lilxil wherein the plaintiff re-
I covereil ""Iv -'^- "l-"""*^'-'*- *!'« J"'l«*-' "'•'" *"■•<-"'*
the cause refuHeil to certify. C<iiiin-i>i, v. MrLi-aii,
Tav.':i8l.
Where the jury found, in an action of slander.
Inivices ami full costs of suit, full costs were
allinveil. Shiimry. M<"r, d O. S. .U,.
The eeitilieate under Ki Vict. e. 17.'), s. -I>,
iliil not necessarily entitle the plaintiff to full
.,i,t< hut only to such costs as niiylit otherwise
have lieeii reeiiveivd, and did not uiterfere with
tL •'! .lae. I. e. Ki. Where, therefore, in slander
Miecial ilauiage heing laid) the verdict
111'
."rtilied.
WiiS
under 1(>
f„r Is., ami the judge
Viit that the grievance was wiltul ami ;iiali-
ciiiiis the iilaiiitiir was restrained hy the -Jl .lae.
fnmi'ohtJiiiiiiig more costs than .ianiages. /'.-/-
,(„.v..1/wn, 1 1'. U. 117. -Q.B. !
Ill an iietiim for slander plaintiff is entitled, !
luiilor a eertitieate for full costs, pursuant to II i
Viit. c. "24, '•■. to t'*" f"'l costs of suit ; but, per
(Iwvnne, J., he is not so entitled without a cev-
titii'ate, where .snme of the words mentioned in
the iki'laratiiin are not actionable without sjiecial
damage laiil. Slnnirt v. Mojfuft, -.'Of. I'. 8i>.
VII. ClilMINAL PROCEnrRE FOR LlllEI..
Where a party on moving for a criminal infor-
nutimi tor a liliel, swears that the libel was
ijiililislieil iif hini, and his attiilavits set out the
iiVl. which lilies not charge him in express tenns,
imr is iiiaile to- refer to him by innuendo, the
niirt vill grant a rule. Itcijimi v. Crookf, M. T.
Ill such a ease, a verified copy of the Iciter
oiitaiiiiiig the liliel is sutlicient to move upon,
s.tiiHiit the prmluction of the original. I h.
Ilailefemlaut was indicted for a libel, which
illc.iiltliattheprisecutor, fJ. N., had lieen pro-
; kuitiil for perjury, in swearing that de.' -nlant
I U attenijiteil to assassinate liini. Defendant
pli.iWtwiiplea.s in justification, tliegist of which
[ftre, th.atiiiie'l. X. had f.ilsely laid an iufornia-
[tioiiiiniiath against the defendant, charging de
IfeniLuit with attempting to jissa. linate liini by
[firiugapiatolathiin; and, ^. That a.'idd. N. was
jpMtiittHl for perJMry for '.lavin^ laid this false
|iiii(iniiatiiin. !t was^liewi at the trial that the
Itaiil (1, N. liail lieeii jire ji jd by tl j grand jury
lurjury, Imt not for the matters complainei'i
IcI liy ileiemlant, and the jury found for the
IcMwu. The eiiurt refused a new trial. Hnjinii
|v. 'I'.iir,!,,, 7 (,'. p, 13(i.
Where an oriler for pivynu^nt of costs is sought
Itliich may, uiuler ('. S. 1 1. ('. c. iM, s. I!t, Iil
lidlliiv.til liy exeeutiiin, as in this instance, for
Ipay'iiiiit of costs iif a prosecution for liliel under
"S, r. (-'. e. 103, the service of the suinnmns
tiust in j;eneral lie personal. The court niay,
Wir sjK'ei.il eiri'iiiiistances, dispense v ith per-
pniial serviee. AVhere the defendant is abroad,
■ it is known where he lives, jiersonal service
fill imt l)e ilispenseil with, unless it be made to
ipiiear that ilefeiiilant is keeping out of ihe way
* eviule service ; and even m this ease it is by
'nuaiis clear that personal service will lie ilis-
enscil with. (Service on the attorney on the
^Til, ami on the wife of the defendant, it not
leiug shewn that he was keeping out of the w ay
to avoid service, was liehl insufficient, though it
Wiis shewn that he had left I'jiper < 'anada, anil
gone to reside in the United States, linilnii v.
.Sim/Lsuti, 10 L. J. •220. - ( '. I-. ( hanib. A. NVilson.
Upon an indictment for libel, published at
defendants' instance in a newspaper, it a|ipeared
that the editor (who was not imiicted) before
inserting the libel shewed it to the prosi'cutor,
will! did not express any wish to siijipress the
publication, but wrote a rejily, whieli was also
inserted : Held, not such a defence for the
parties indicted as to render a conviction illegal,
and a new trial was refused, /'iii'iiin v. MiKI-
<l<r,-ii<l 'il., lit (,). H. KilS.
A idea to an infurniatinn for libel under the
C. .S. U. ('. c. I0:<, .s. !», must allege the truth of
all the matters charged ; and Held, upon the
infill Illation and plea set out in this case, that
the plea was clearly iiisutlieieiit in that respect.
Jii-jiiKi v. Mui/laii, \<J {). H. iV2l.
On .I'l aiijdicatioii for a criminal inforniation
againsv '.ei'ciidaiits for a libel, the .applicant's
atlidavit stated that he had read an article [lub-
lislied ill the Xnlhiinil newspaper in 'roronto, on
the Kith of .luly, 1874, setting it out : tliat he
W!vs the peixon referred to : that the statements
therein were untrue, and that they were inten-
ded to prejudice and injure him : that the defen-
dants were, on the Kitli of .luly, proprietors and
publishers of said paper : anil tr.at the article
was printed and published by them, and is the
.same article contained in tlie said newspaper,
•ittaelied to the athdavit of l{., "tiled on this
application." U.'s atlidavit was sworn on the
•22nd of August, and stated that " the jiimexed
copy of the Xiiliunnl newspaper, bearing date
the Itith of .(Illy, 1874, was on that day )mb-
lished in Toronto, at No. ^21 Adelaide street
lC;ist," by defendants, " who are the publisherD
and proprietors thereof. " The newspaiicr con-
tained the libel set out in the applicants atlid.a-
vit. 'I'he ap]ilication was not made until the
•24tli of August, two days after the alHd.ivit was
sworn : -Held, that the applicant's atlidavit was
sufficient ; that the reference to K.'s atHilavit as
"filed on this application" could only mean,
there being only one application, the application
about to beniaileonlhesc atiidavits. Held, also,
that it was no objection that the rule nisi was
stateil to have been moved by counsel fur the
criiwii, instead of for the ajiplicant Held, also,
that it was no objection that the atlid ivit de-
scribed the applicant as " Msiniire " only, for it
was not necessary to shew that he nceupiiMl any
ptiiilic or ollicial position. In answer to the
application, defi'iidants tiled an allidavil stating
that they hail no )ierson,il liiiowlcilge of the
matter contained in the alhtged libels, but re-
ceived the inforinatii n from persons whuiii they
lielieved to be reliable ami trustworthy ; that
the '//<'" newspaper was iiiiitrolled by the ap-
]ilicaiit, who was an active |iiilitiei in, ii I had
published a number of articles violently attach-
ing one ,'^., who was a c.indidate for a public
office, and the libels in ipiestioii were published
with a view c*' counteracting the eff'ect of these
a-licles, and believi.ig them to be true and
without malice: Held, no answer. Idii'iiia v.
Tliihiij.im it id., ^24 C. 1'. •2.52.
! The 37 Vict. c. .18, a. 11, enacts that the right
, of th(! crown to eau.se jurors to stand asiile shr.ll
1 not be cxerci8<)d "on the trial uf any iadictmeut
i . ;)•
l;i
m
mm
1071
DEMURRAGE.
IP.
"F information by a private prosecutor for the I tliately on ))eing informed of sucli slaiuler TV
pulilic'iition of !i defamatory liljel :"- -Held, to i evidence Laving l>een rejected, andavrl*
found for ,t'140, a new trial was gr.iiiteil that'll
the circumstances might he eliLitctl v/ /'
Lewl.1, 3 0. 8. 385. ' ' ' '•
include all cases of defamatory libels upon indi
viduals, as di.stinguishcil from seditious or Mas
phcmous Ii1)cl8 ; and tliat the fiict of the prose-
cution licing conducted liy a counsel ajipointed
liy and re|ircscnting the attorney -general, would
make no tlill'crence. Kki'iiui v. /'i(/t<Miii, SfiQ. li.
1 117.
Held, in an actio;i for assault, tli.it 111,^11,,.,
and ahusivo articles rcHectin" on ti,,. i .■'*
ilants, puolished on the day ot, aiul |iixvi.,r
the assault, in a newspaper of wliii,li tin; iihmtl
The learned juilge at the trial allowed the 1 was the pro)>rictor, were adinissilil,- m ^,^.j,l
crown counsel ni swell a case to direct jurors to i ia mitigation of damages. Tint wlu ittlu' viil'!
stand asiilc, liut after the verdict, entertaining ^ was for ^."lO only, anil tliough sucli ivicluniv /
doulits, he reserved a ca.sc for the opinion of this j rejected the jur ;• were fully iiifoniuil l.y .i,,,
court, as to the ])ropriety of his having permitted ' dants' counsel tli.it tile assault was luniiiDtt. 1
it : — Held, that he was clearly not i)recludcd I consequence oi these articles, and tlic ciiiiit < "
from such reservation l>y having allowed the ; no reason to lielieve that clc't'eiiclaiits ha,! )
right when claimed, ami that such ipicstion was a : prejudiced by the ruling, a new trial was itiiK'!l''
(luestion of Law which ariose on the trial, within i but, under the circumstances, witlmut tiKt"^
the meaning of the statute. /Ii
The prosecutor's usual residence was in Kng-
l.ani!, but he lu'.d come iiere with emigrants, anil
at the time of the )ail)liciition of the liiiel had
gone back for a temporary purjiose, intending to
return :- Held, that his absence was no ausv/er
to the indictment. //(.
The libel contained several distinct charges,
all of which were justified by a general plea of
their truth, and the jury were directed that un-
less all the charges which were libellous were
justified, they should convict : — Held, that the
charge was I'iglit. Ih.
term to either partj'.
C. F. r)2I.
/*«/•'■// V. (11,1
VIII. ArouMJV.
This action was brought for libels published
in a nevvspaper called the Ddili/ Lead/ r, of which
defendant was proprietor. Plea ; The first pub-
lication appeared on the 29th October, i8fi'2, the
second on the "ith of November. This action
was commenced oil the 15thof December, and the
declaration was dated on the 24tii l)eceinl)er,
I8(i'2. On the same day an apology was iiub-
lished in the same paper, which the jdaintiff's
counsel, on argunient, admitted was sulHcient, if
published in time, under the statute, which point
iwing left by the judge who tried the cau.se to
the jury, they found for the defendant. Upon
motion for a new trial, --Held, that tlieipiestion
of the pulilication of the apology within a rea-
sonable time was prip^rly left to the jury to
decide. Senible, the apology was too late ; but
the evidence shewed neither actual malice nor
gross negligence in the piiblicatiim fif the libel,
and the court refiLsed to set aside a verdict for
defendant. The publication of the apology
"at the earliest opportunity,"' is to be con-
strued as incaning within a reasonable time, the
circniiistanccs of the case, and the opportunities
of the ilefeiidant to publish it, being ciuisidered.
Cotton V. /;--(///, 13 t'. I'. •243.
IX. MlSCKI.L.VNEOUS CaSE.X.
An order to arrest was refused in actiiuis for
malicious arrest and libel. V'Coiiiiur v. Aiioii.
ami Diirnis v. Ilnll, T. T. 2 & 3 Vict. See All-
tnnn v. Kniml, 3 1'. It. 1 10.
Where in trespaas for assault and battery the
defendant offered to jirove in mitigation of dam-
.ages that tlie plaintitl' had slandered his wife,
and that he had conunittcd the trespass iuune-
DE IXJURIA.
See PLE.VDiNii AT Law,
DELIVERY.
I. Ok DEEDs-.S'ec IJeki> Mouic.m.k.
II. Ok Goods— iSee Sai.k of (Jouds.
DELIVERY OHDKII.N
Where A., having 217 bushels of wlicii
in B. 's warehouse, gave t'., who had paid the]
I price of the wheat, a delivery older ii|ihii R !
I who refused to deliver the wluat t.i ('. until i;e,'
I B., had lieen previously sat isliiM I a ilciiiaiKliifhijI
! own against C, wholly uiifoiiiicitcd with the}
I transaction between \. and ('. : HfM, tliati
! upon such refusal ('. could sustain an adim
j against A. for the non-delivery of tin- whoat;!
j the delivery order when given "to tlio imroliasfrj
not being an actual delivery of tlic wheat, ktj
: merely an evidence in the luunls of the .■iilk j
that he had the wheat in H.'s waiclnaisc, aiiilinj
■ the hand of the purchaser that lie liail the rigktj
i to demand the wheat from li, I'mmlUfi \,\
' AiiitirKon, 7 Q. H. .'i73.
i Held, that the delivery of waicliinist' leaipuj
: for flour, and the delivery oidt'i-.s tluTetm-, isMtj
I a constructive delivery ot po.sscssiioiiof thedunr,]
Dcddi/ v. (loufleiioiiiili, ■') (.'. 1'. llKJ,
DEMAND,
I. PaRTU'ULAR.S OK---S'(i I'liACTICE.uLlW.j
II. Ok Pos.SE.S.SIOX -,SVr H,IK("r.MEVT-LlN>|
i.uui) AND Tenant.
III. Is Actions of Trover -iVc Trover.
DEMURRAGE,
(SVe 8inr.
,, ami a Vfr.ii,»
graiitfil tliatun
iciti'il. ,V/ii.,-)T
lit, thilt lll„tll„5i
; I'll tlif iltiVn.
f, ami iiri'.;,Miiii,
■liivli tln' i>lamui|
ssililc ill ivi.lc.iKt
will IT the vi'Vilio !
ucli cviilfiiiv ttm
ifiiniii'il liyU-lin.
was I'liiuimtt'.ilii:
ami tlif cniirt s;m ,
L'liilaiits iiail Imj 1
.trial was ri'iujtil,
, witlmut costs in
10(3
DESJARDINS CANAL COMPANY.
107-t
A.
r I, AW.
DEMURRER.
V.
Miiiirc.M.K.
(iK (liinlis.
{DKliS.
iliflsiif wliuai
wlin had i«iil tlie]
ry diiUi' uiiHii B,, I
heat t.i ('. untili'.e, I
lit'd a lUiiiamlof hiil
li'iiiiMoi.'ti'd with the J
,1 ('. ; -Helil, that!
sustain an lutinnl
L-rv iif till' «lii;it;j
•II to the imrchasri
y 111 thf whwt, I'ltj
liamls 111" till' sclltr|
s waivliiiiisi', iuiilinl
lat la' liail the nghtl
li i'). I'niii'lfvi v.f
warehouse recciptjl
I'llers tiioremv. i»n»»|
Issessimiof thi'll"W.|
KiS.
rilMTli F AT Uf.j
llvlKlTMKVr ■ Ll«>*|
Iek --*''•'■ Titiivri;.
IX.
I GeNKRAUI-Y — iSVc Pl.E.\OIN(( AT LAW—
I'l.I-.AUlNU IX V'vflTY. I
11.
VmK.MiMENT ok ri-E.\UIN(J.S AFTEK Jl'DO-
MENT ON—.?''' AmESU-MENT AT LaW.
DEPAIITURE IX PLEADING.
Se<' Ple\i>ix<i at law.
DEPOSIT RECEIPT.
See Banks.
DEPOSITIONS.
I Cektiobaki to imixii ip, in Criminal
(^•^^K^._,5t.» Certiouari.
II Undek Commissions. — .SV'^ EviDENt-E.
Ill, In Criminal Case.s—*'' Criminal Law.
UEPUTY CLERK OF THE CROWN.
See Crown Ofkice.
V. Boundaries — Si-e Boindaky ~ Sikvey
— ^Vater ani> Water CornsES.
VI. Roads or Rkiht ok Way— .SVr Way.
VII. In Sales and Deeds for Taxes — See
Assessment and Taxes.
Vlll. In Sales iiy order ok the Coirt— .S'c'
Sale ok Land uv Order ok the
ColRT.
IX. In Sales by Sherikk— .SVf Sheriff.
X. COMI'ENSATION FOR ErROR IN -.S'rt- SPE-
CIFll' Per FORM AN(E.
DESERTION.
I. Assistinc; Soldiers oh Sailors to De-
sert — See Criminal Law.
II. Alimony kor— .sVc Htsband and Wife,
BKPITY UIXIISTHAK <>F THE COURT OF
; CHANCERY.
U,il masters ami (kimty registrars of tlie
Iccurt are imt at liherty to practise in partiier-
bip nith iiolieitnrs iiractising in the Court of
hancerv, although they may not actually siiare
1 till' limolumeut of suits. MeLean v. CVo.<.<,
JChv. Cliaiiili. 43'-'.— Spragge.
DEPUTY SHERIFF.
See SlIKlUKK.
DESCENT.
.SVe Estate.
DESCRIPTIOX OF (JOODS.
I. Is liii.i.s OF Sale and Chattel Mort-
liAiiF.s — .SVi Bills ok Sale and
Ciiattkl Mortoaoes.
II. In ri.KAinNiis in Actions ok Detini'e
.W DEXlNrE.
KESCHUTION OF LANDS.
I. Is FjEfTMEXT— .V"' Ejectment.
II. Is Deed.s— .S'cf Deed.
j 111, Is Pateots— .?(>(> Deed.
I IV. In Wills— .bVe Will.
1)8
DESISTMENT.
.Vm Kailwavs and IIailway Comi-amks
DES.IARDINS CANAL COMPANY'.
A railway CI •iiipaiiy liail tliu control of a swing
briilge over this canal. The iilaintilV's sliii. was
navigating the c.inal when trains were almut
passing anil repassing tin.' lulilge. Notiic was
given i)f the plaintiH's vessel lieirig almut to
pass, l>y Mowing a horn ami hailing, ami notice
was given liy the eonipany's servants hy signal
that till' hriilge coiiM not then he swung, and
tile jilaiiititl's vessel was injiireil liy running
against the liriilge while it reiiiaiiuil closeil : — ■
Helil, that cLs the reipiireiiients of the railway
trattie coiiipelleil the liriilgc to he closeil, the
company were not then Imnnd to open the liriilge,
and were not lialile for such injury, to which tlie
plalntitl' had contrilmted hy his own negligence.
Turner y. Orent \Vi.<lrni /,''. IT. r,,.,)!!'. V.WiVi.
Held, that the (!. W. It. Co., were lioiind by
the .")tli sec. of l(i \'ict. c. M, to maintain in
repair the hridge over the Dcsjanliiis canal,
which it allows them to I'rect. Tli.it hriilge
forms jiart of a road leading into the plaintitl's'
road : — Held, that the loss of custom and tolls
iiccasiinied to the plaintiH's, was not siiliicieiit to
eiialile them uo ni.iiiitain an action against defen-
dants for allowing such hridge to I'.ill out of
repair. Hiuiiiltmi (iml lirnrl: /'iiml ( (iiiijiniii/ v.
ilreiit Wtstrrn I'. Cn., 17 'i. 1'.. oliT.
Held, that, by the various acts of ]iarlianicnt
refevring thereto, the erection of defendants'
drawliridge over the Desjardiiis canal was sanc-
tioned and recogiii/ed ; and that i'. must be
assumed to have liecn lawfully erected, thougli
the formalities renuired by sections l.')(!, IH7, ami
138 of the Railway Act, might not have been
complied with. The Desjuriliits ChikiI Cu. v.
Great West, rii R. II'. Co., •21 i). P.. MliS.
Held, also, that the first count of the declara-
tion, charging defendants with neglect and re-
fusal to open the bridge and permit ves lels to
enter or leave the canal, was defective, in not
alh.'ging that it was not at such times being
actually used by defendants for the passage of
,! ■•■>
1075
DETINUE.
i";i;
tlii'ir trains; ami that the seco kI count was
good. II).
Tlie Dcsjanlina canal company having been
indicted for not keeping in repair tiie hriilge
over tlieir canal wlicre it cmsseH the highway,
Imilt for tliein l.y the<;. \V. I!. Co. :■- Held, that
tliey, and not the company, were hound to kecji
suchliriilge in rejiair. ni<iiii<i v. Disjan/iii-iCiiiidl
Co., 27 (,>. B. .S74.
Injunction granted at the .suit of the creditors
of t\u; Desjardin.s canal comjiany, who h;id a
lien on the canal, against a sale thereof under a
Sul).SC(plent execution. '/'mrn iif l)i(iiihls\. I)i:t-
jard'iiiM CtinatCo., 17 C'hy. •2~.
Aji act of i)arlianient having provided that it
should he lawful for the Dcsjardin.s canal coiu-
puny to cut a chainicl across a certain highway,
and to erect, keep, and maintain a safe and
commodious liridgc iunws the canal, and the
hridge after being irccted having become unsafe
througli the default of the canal comiiany, an
incor];oralcd road i-otiipiiny, wiiicli had ac(|uircd
the road, made several endeavour.'-- to get the
bridge rc]i;iiied, but all of them having f.iiled
through the insolvency of the canal company,
the road company at length eonnueiiecil the
erection of a lixed bridge, which would impede
the navigation of the canal: Hehl, icvcrsing
the decision below (17 Chy. ;{1), that they hail
no right to do so, and n permanent injunction
•was granted. Spragge, ('., and Mowat, \'. t'.,
diss. '/'(,((•■/ III' /hitii/iix V. I III iiiilliiii mid MUtvii
Detinue for an indenture of bargain and si
Plca.s "1. Noil iletinet. '_'. That \\w ,1,.,!,] .
not the jilaintitr's. The jury fouiid tliHttii'**
denture was delivered by one \, tu tlnili"'
ilant, to be delivered to tlic iilaiiitiff afti'r v
death, on condition that he (the plaiiitiili s|„rii
keep A. until his death, and sli.,nl,| „,,",
debts ; and tli.at the plaintill' iimiI imt m ,i„ri;,T
A., luit after his death w.as iva.U- to ? l
delits: ^lleld, that the plaintilf .■'„i,|,i '„;'p
cover; for the writing being dclivi-iiil t', -t
defendant merely as an escrow, wa.-iiKitnif
a deed as ilcscribed in tlu^ deilar.ilimi, ninl tt
lilaintiir had forfeited ills riglit by a 'lnv;,,!, ■
one of the conditiona. JIii/kuIi/.s y' iy,,,/ 1 n l
q. K ii. ' '•
Uetinup for a watch and cli.iiii
that defendant had obtained iii>>
tilings by redeeming tlicm,
It a,
HiiiiilO
IS Cliv. HI I, in ap]>cal.
DETAINER.
1.
Of I'KUSONS - .S'fc .AlinKST
II.
l-'diii iiii.i; Enicv .\m) D
Ckimisai. I,.\w.
III.
Or fbiiiDs— .SVr PnriMi;-
KETIXTE.
1.
Miii;i:i; IT I.IKS, 1()7.".
11.
I'l.KAIMMJS AMI I'.VUHAri:,
111.
Damacks, 1077.
rKI.sONKK.
Dktaiser
TliOVKK.
1077.
T. Will'. UK
nil „i y
,. - - .„ , 'H'l^UMt,ti"s,V,|te,|
troni a person with whom tlicy wiiv hlill,
and that he had refused to give tlicm nif
payment of the money advancecj, ijaiiim',, j
further sum due by the ]ilaiiitili I'm |,„,„.,i "
verdict having been found ioi- t lie I nil vain,,;
the articles, it was slfw,, upmi ■itlldavit'.'. tO
before the trial the defeiidaiit liad i''taiiii,l fl
eutioii against the plaiiitilf for tliis mi|., i„,Lf
hivision C'lirt, under which the liailitf, l,v|J
lilaintitf's directions, had sei/cd this wattii ,i3
chain in the defendant's posscs^idn ; -inil d,.,, J
lirevciit tlieir being sold, the pLiintitl
cured some one to advance the iiiniirviiii 1™
allowcil to retain them as security : IliU tlj
this action slioidd not have been |"ini, ,.i.,|i.,l „j,|j
and a new trial was ordered withdiit co^ts,
the plaintill' would reduce his venlii't tnM„niiii]|
damages ; and that lie shouhl in citlur astwl
the costs of this apiilic.-itioii. ./m/,„.,„» v /,,, J
13 t^. li. .">()8.
I>etiiiu. for a conveyance ol' lainl lini;;l,tlnl
Sec ! tlif plaintill' from one (!. : Field, that ii|«iiitliJ
tacts and evidence set out in this ims,., .Ifitnl
daiit was not shewn to have lietii actiii:; rtiierl
■..isc throiigoout than as the agent dl' \\. ; tlia|
the (Iced was in defeud.-int's hamls siiii|ily!
(J.'s ,.^'ent, and the detention was ii<,t lynj
ilant's act : that if this (|ncstiiin h.-nl htTiiliitti
the jury they ought to have ioiuid iurdciciniantl
and a new trial was ordered. I'urbi-y Si^i
1 •-'('. 1>. 81.
Held, that the Division Coiiits liav,' imisiliej
tioii in actions of detinue. /,»(■./>■ v. A''W(, J
L. d. 147. V. C — Kobii'son.
Detinue is maintainable though I'ri'duliiiitM
not the goods when acHon lumight ; it is-jfi
eieiit if he once . .A, and iniii|-o|ieilv iiaitniaiti
Matin, ■" V. Liiiich, L\SQ. H.";K.
i them.
Defendant ha\ iiig a < laiiii against one 1'., sued
out an attachment from .' Division Court, under
Mhieh he directed the bailill' to seize certain goods \ The iilaiutitl 's servant, one D., heiii: iiiifarj
in til.' house when' W. was living with the plain- i of his horses, sold one. witlimit the iilauiiif'l
till, and he was jiresent when such seizure was' anth.irity, to the dcfcndani .- 'vit'c. wlin liaillif
made. The goo, Is w, re ]>laced by the bailill' in : inamigement of defcmlant's h.isiiio.-s, rm'innl
the custody of the clerk of the Divisimi Court, .'<'J0 in cash, and dclemlaiit's liitc tDrSM]
in whose possession they I'oiitinued until the
bringing of this ;utioii ; Held, that as *he
goods were Kcized in the pos.si'ssion of the deft'n- <
daiit in the altachmeiit, an action of iletiiiue
could not be maintained against this defendant, | $17, wlifli, however, she did iint t.di,'. llilU
even admitting the goods to have been all the brought detinue : Held, that tlic [ilaiiitili »d
time under his absolute control, without shew- j entitled to recover ; for that he was ii,it bmiJ
ing that the ]ilaiiitill' had made him acipiaintod j to tender to defendant the nnto and tliiiiM<j
with her claim, and demanded to have tlicni ! he li.ad received, nor could ilefciidaiit ivfaint
1,'iveu up. ('/(((•/• V. (>n\ II (^>. H. 43(5. j horse until he obtained them, at alK'viiit-wti^
able to O. Afterwards, nieetiiig (»., till' I'lai
till" got from him the note, .andsij incasli
]ilaiiitiir dcnianded the liors,' ireiii tlio >
daut's wile, and oll'cred liei' tiio imtt' aiiil thj
l)ar;,';iiii;iliil.4^
i:it til.' ilmliji i
I'imii.l thattlnu. I
A. tutli.,y«,
ilaiiitilV iil'tiT .V, I
If lilaintitl'i sli„iil]
ll SIIMUM |,;iv juj
liul n»{ niiuiit'aitel 1
r.'iuly ti. i«iylij
iitilV .'111111 uiit ,.1
! lU'livi'i'iil til tb j
i\v, was n.itiiif«|
'I'liir.itii.ii, iiml tU
^;lit l.y ;i l.i'.';ulii(j
'./i/.v v. ir.r,W,H, i»l
DISCOVERY.
1078
";i
I . „:..;„„ ii.itico th.it lie woulil .1« so, aftor first '
Cwiuliug thciu. .1/,-/7,-// V. .SV-.m, :W(,). H. 158.
II. ri.r.AI'INIJH AND KVIDKNCK.
A li.,!] luiiv tn! siiecially iilojulfil in an ftetion
Ifitinuc. 'irwnln. v. Jir,,.;,, I C. V. 1!M».
Vre.Utivi'iyof tlie g Is ti> iilaiiitilV peiulinji;
i) nit 111- al'tVi' l>loa, must l)u iileiulinl. John-
Whi'Vi'tiie Ui'ixls liavo boon rciilevietl uiukT
I ,it |"> V'''t- ''• *'"*• "'"' ^'"^ (li'olaration is
llov ill'
ili'tmiu', .111'' '^
,.„liiin» iiu'it'ly, tlu' l)loailiii;;s slioulil l>u us
11 ll
•liaiii. it uiiiicjts^l
I |lllSM'>sillll iif tlifj
t iiliiintilVsiviiitoJ
lli'y \\\\r liliilgtij
I give tlu'iii mi
viiiu'.'.l, claiiiiiiis;
iMtitV I'.ir li.iar'l i|
l.ir tlu' lull valiu
.il'iiii 'itrnlavits tlj
it lia.l i.'itaiiii'.loxjj
fill- tills Mini iiity
II tlic liailitr. livtM
'i/t'il this watch ad
iscssiiiii ; aiul tliatlj
ic lilaiiititV hail [in
tlic iiiiHii'V mi lii'ii
I'l'iivity ; ili'lil. tij
lic'i'ii (ir.ii i'i'.k'.l\riili|
witli.iiit ciisls, 1
lis vt'i'iliit t.iiiiiimiiJ
.ilil ill citliii' casi'iaJ
1. ./()/i;iMiii V. /..III!
Ill' lailil Imi-.tlit li]|
ll.'lil, tliatuiKiiitlK
t ill tliis I'asi', iltftn
\w lii'i'ii ai'tiiij; I'thfij
If ai;fiil nl tl. ; tkj
itV liaii.ls siiii|ilvi
til 111 was imt
stiiill liail lil'l'lllritK
tiiiiiiil I'lirili'k'iiilatl
I'lii-b rwSi r.i,^
units liavi' iiirislJ
l.iir.is V. yM,\
^'11.
,111 High iK'fi'iiilaiitliJ
I lir.iii-lit : it is<4
liiii'.iin'ilv iiartoUitl
|js(,), i!.':!."i-:.
liH'tt., liiiiu:iiHlttt»
Itliiiiit tlH''l>l:ii«tif|
It ,-, '.ilV'. wlinhaltlf
Ivasiiioss, iTci'md
I „ n.iti' till' s.Vi, |«S|
l.'.'tinu ('..tliil''!"
Iiii.l SIT ill «'sli' T
ll'sr U'dlll tho lit'*']
Ir llio iifte aiiil tkj
|i,l nut taki'. WM
liat the iilaiiitill »^
[it 111' was imt l««n
1 iiiito ami till' iiwBj
,lofi'iiilalitivt:iintl
li, atalK'Viii'-rtll
lifii cniiiint III' /_'ivoii ill evideiiuo
,., lir i liiw lifiiviiii,' till' iiiaiiitiir's iH-opurty.
J!',;„«.v. '•,.».;«.; iii<^ 15. :e.t.
iK'tiiiii'' for a chfiiuo. IMwi, tliiit ilffomlaiita
■ivi'il the flu'ijiif 'I"'"" tlif I'liiilitill' til luvsfiit
1 I'.illii't it iiiiiii tliii liaiiU (III wliifli it was
iwii: that tlu'y iHii iircsfiit it, Imt iiaynu'iit
■i, I'liiisi'il liy the liaiik iiiaiiaucr, wlm rctaiiiL'd
1 kiiit till' saiiH', alif,i,'iii^' tiiat tlic iiaiiie.^ of
„, 4r;uM'i-s tiifri'tii wfi'o t'oi\i,'i'il : llflii, a good
feiiiior; t.ir il' tiif ciifijUf was forgcil tiieilfti'ii-
111 was riflhtt'iil, ami if i^cmiiiif, ilftViulants lost
iiitroi I'ViT it liy III! w roii,ul'ul act, and tlif plain-
sri'UH'ilv "'1^ •'>''■'''"'*' *'"' '"^'i'^' /''■""'" V.
ii.i„,,,M.',7 ((/., L'l ^i. r>. 4:18.
IMil, .111 iiiotiiiii to arrest judgiiu'iit, that tlie
mljwort' stitiifii'iitly di'sfrilifd in .-i count in
Itiiuif .'i-s t'*"' iiii^lif'-'* "t ''.V^- Ri'liiinl.iiiit V.
,,,,'«M,i. a UliO.
V ,il<ii as til ilfscription of ^'oods in detinue,
timit' for till! lifys of iilaiiitilV's dwi'llin^
isf. I'ha, leave and license. .Second re|)li-
ion, that liel'iire tiie .leteiitiim tile lil.-iilltiH'
[cki'tltlieaiie:;eil leave, of wiiiciitiie defendant
uiitirt'. rvejiiimier. that within a rca.sonahle
lealtcltlie levneatioii and notice of it, defcn-
itwilelivL'ivil the key.s to tlie iilaintill', who
'iitiil thi'iu • Held, reiilication ami rejoinder
gi.,1,1. Ham V. Mclkmahl, 32 (I B. 1!M).
II' Willi' "itet..iiied" in a declaration means an
Wf lieti'iitiiiii, ami it is nniiecess.iry, tliere-
t" iiiiail leave and lice iiso siiecially. Hi.
'hinl iviiiieatiiiii, tiiat defendant, as sherill',
Till tlu' liniise with the i>laintitl"s consent, to
iimk-rali. fa, aj.'iinst tlie iilaiiitilf's .;oods,
ill',' lii'st iilitaineil tiie keys for that imrpiise ;
tliat, ill excess of Ills duly as slicritV, he
liiieil tho keys frniii tiic iilaiiititl', and locked
lilt lit ills liimse fur several days, whereliy
ilaiiitilf siitt'ereii the injuries coiniilailied of
|t!i.'il.'cla'-:.!ii.ii : Held, good, ,'is lu'iiig in the
ire lit a.i iiifnniial new aasignnient, //<.
ill. Da.mai.ks.
leniliii', tli,it ill iletiniie tor a conveyance of
p, wluTo th.' jilr.'Aititr shews hiinself entitled
lii'iui.i, Imt ilefei'.laiit, intending to do right,
Igivi'ii it 11)1 t.i aniitlier, the ilainagea should
pl'tasaiiiu'stiiin for the jury under the cir-
Btaiu'.s, ami shuuld not ;is of course he tho
fe lit till' laiiil. R<'!iiiol<hv. iWiddiH, \-2i.). H. •).
ilitiiiiui fur ,1 de.'il. (^luere, wluthcr the
fitill an roeiiver ilaniages for having been
Jiiitoil liy the want of it from obtaining
tiH'iiitivate hin farm. i\'tiii<l\. Ihiin/ni,
■ li, ^ilti.
DKVAST.WIT.
Si-f E.XKcrrous anh .■KnMiMSTit.vroRs.
DEVIATION".
1. Ok .Siiii' -.Vcc 1nsi'I!AN('i;.
11. FliOM ('(INrUAcr .S'e. WoitK AND Laiioik.
DHVISK.
Si-r Will.
Hli;K(T(tl{.
«SVi' Coni'oK.vrioNs.
DISCLAIM Kit.
1. Ok Tri'Li-: — Siv KiKrrMKN'r- Landlokd
AM) TKNANr.
II. In .'^iiTs (IN .MimniAiiK.s -.S'(<- MoitniAuK.
III. In t'oNruoVKurKD Elk.ctions— .SVr' Mini-
CirAl. ("oln'OHAlKINS.
DISrONTINUANCK.
f. Ok Action Sir PiiArrrcK at Law,
II. Ok I'o.SSK.SSIIIN - iS'eC lilMITATIos OK
Actions and .Snrs.
DISCoVilHY.
I. Ok Dorr.Mi'.Ms- ,s'(i Knidknck.
II. Hills ok.
To a liill of disi'ovcry in aid of all action at
law, in which defendant has |ilei'.ded, defendant
eaniiot plead a legal dofciiie in bar, unless such
defence lias been niie.l iiiioii in the action, /'iil
V. Hiiii/siiii/l, 1 ( 'liy. .">8t.
Till' Iilaintill' in a bill ..f discoM'iy was out
( f the jurisdiction of tiie ..mrt, ami the defeii-
iliint, having answere.l, had obtained tiic usual
order for tlie iiaynieiit of his costs, but witli
which order the ]il,iintiH' negle.te.l to comply, in
eonseijiiei'ce of w lucll the defeinlant was obliged
to take out a sii!i]i(ena, ami apply to the . mirt
for leave to serve tile plaintitr therewith mit of
the jiirisdietion. The court gave the defemlaiifc
i^avi! to starve the plaintill' out of the jurisdiction,
and directed the plaintill' to pay the costs of the
motion. .S'. C. 2 Chy. '21'2.
A bill will not lie to discover facts which the
plaintill' in eijuity may prove aliunde in ins de-
fence .it law. Iiitiiiiliini V. yV(i/)/).i, 7 Oh\. 483.
Where several persons severally liable on a
note or bill, are jointly sued ,at law by the hohlcr,
one of the defendants in the action at law can-
not obtain discovery against the plaintill' at
law and the other defendants, t.ie ilefeudanta
ill
pi:
m
'. 'i ■»
1079
DISTRESS.
Li ,
as butwuvM tliuiiisulvi!M not buiiig litiuiitiii^ par-
ties, l>ut witm;.s!ju^^. A 1)111 lih'd for tno piiriMme
is ik'iiiiirrahlu. /h.
Thu orders of court of ISoS, which aludisili all
interrogatories in hills, do not a]ii)ly to hills for
discovery in aid of an action at law. The old
jirivetice still prevails, lldi/lidll v. Slii/)liiri/, \'2
Chy. 4i!t;.
Although, since the ( '. L. I'. Act, hills for dis-
covery in aid of defences at law are rare, yet
they will lie ; hut in such a case the ]ilaintitr
cannot move for an injunction to restrain the
proceeding at law until he has tiled interroga-
tories. Under special circumstances, however,
the court <lirectcd the defendant to suhmit to an
examination in aid of such motion, or in <lefault
ordered the injunction to go. Jdinin v. Sntirr,
15 CJiy. 2'J9.
TMSMISSINO HILLS.
I. (lENKHAl.l.V -.V(( I'UAt TICK I.V Kl^t ITY.
IL In FonF.(i,ostKE— iSVr Moktoaue.
DISOHDKHLY HOr.SK.
Sfc Bawdy IIoise.
DISTILLKU.S.
Set: ReVEM'E.
DISTKK.SS,
1. liKNT.
I. /'i rxdiin 1)1*1 niiiiiiiij, IO.SO.
'_'. Fur ii'liiil h'i'ii/s.
(a) Ifriit Hill imij'ililt III Mmiii/, 108'J.
(h) nihir CiiMf.*, |(,S"J.
3. Tiim iif DUtroiiiinj, l(),S4.
•t. Iliiv In /« miiilr, 10.S4.
;"). Willi! iiiiiii tif DUtnuHi'd.
(a) (liiiiih III' Thii-il I'lirliis, 1085.
(1>) A'./i iii/iliiiiii fur liiiii III iif '/'null ,
IOH.'i.
(c) Cllilllrl.-< ill IIKI', lOHIi.
(.1) S/in/,, l(),S(i.
(u) Mililiii //iir-irx, |<)8(i.
(f) ( '/mill 1.1 ill Kjiriilitiii or CiiMinhi iij'
llw Lair, l()8().
(g) Aflir I/iiiioriit, 1087.
(h) Vi'KKil.^dl Wliiirr-x, 1087.
(i) Fijiiiri-i Sii KixnuKs.
(i. Siriinil J)inlri'.iM, 1087.
7. Sale o/O'iiijih JJiMlrdiiiiil, 1088.
8. W'nmnfiil, Irniinlnr, or Exr.i-mice D'm-
I n Ks.
(a) Hiimilij fur, 108!).
(It) Phdiliniisiii Arliuii.1, 1089.
(c) Jimlilii'iiliiiuiiiiilir Wurrdiitof Din-
trKSK, lO'JI.
m
(d) IhiiiiiiiiiK, 1001.
(e) (Hliir ViiMi'M, lO'.W.
0. /'li'dM III Aitiwrim iif IHnlrM /;„ ij
-Si-v Ueplkvin.
II. Hates.
1. Miiiiiripiil — S'le As.s|.s^M^■^I
Taxes.
•_». SrIlDol HdliH—Si'i' I'l Ml,- Si lion
III. Damaok Kea.sant, l(t!l|.
IV. Im|'(HNI>I.\(I -,SVr rolNii.KKKI'f.l;
V. Costs of Disthess, I Oil.",.
VI. Undeh Maiiisthatks' Wackam
.ll'STlCES OK Till: ''km K.
Vll. Lanmi.okd's Claim koh IIksi ,,\ pJ
Cl'TION - Sfi- .SllKlllH'.
I. Rent.
I. Pi ruiiiiK l>i.*irniiiii„j.
Where a mortgagee received rent frnin ^^
ant of the mortgaj;(ir hy Ic.inc .siiliscMnicutt,,
mortgage, Itu' afterwards diintnl thu t.imill
iiay ti.o rent to the innrtgagdr, wliicli Ijv ,i|,|.
Held, that the iiiortgagcc cuiilil m.t ,\^A
aft'.;rwurds, as he had hiiiiscll put an ni.l t,,
implied ti'iiancy crcatcil hy liis Innin r iinJ
rent. I.diiiliirl v. Miirsli,' '2 i). H. ;t!l. |
A. demises to If. for a tcnn : I!, ilnnii;'!
term ahscoiids and .liiaiulciiis tlic inniHrtv;
lindiiig the place vacant, puts ,i yrrmm in r
session, and makes a dcmisi' to |i. ; A. ilijtn
for rent under his lease to |{. : Hill, .li.trj
legal. Umliiliili v. liirininl, 1 (,i. |i. •.';j\
A testator, l>y his will, ijcsjiv,! tli;it libise<
tors should sell and dispose ol lii.s larnl. .iinl
nominated .iiiil appnintivl his rxcriitoi>, tluirej
cutors and adniinistijitors, to mmI, txiciiti, ;
deliver any deeds that nML;lit lir iinijsm |
making a title to tlic ]nnrliaNiT ; Hil.l.t
this dcvi.se vested no intiirst in tlif i\i iiti
hut gave them a mere power, ainl ii'1im.|iiiIi(
that they '••piiiii iml ;'isti'.iiii I'm iviil .icvniiiiji
their ow'i time, iiefiire tlio la.nl Hassnlil, .W
v. C'lil','!-, -} (J. U. -iM.
A la..i.':ord eaniint distrain alter lii« iiitu
in the estate has expinil. llnrllniK. J'u-n
<i. H. .-)4.-..
.\ distress made liy an agent inr tin- I'liirfill
his principal, in liisnwn iiaiiic, ami siilis<'<|iitl
r.itiiied hy the primipal : llrM, iitfil. 'i«
V. MiMiildii, IOC. ]'. XW.
I >efendant leased til the |plailitiH la Iral,
three years, there ln'iiig aimllni' |Hn"iiuii |
session of part, as a niiiiitlil\ Irnaiit. «i'"'
succeedi'il liy two iillicrs, huliliiij; iniiliTiid
dant : llel/l, that t!:c lease In tiie |il,'>iiitilll4|
under .seal, (Hieraled as a grant el the iiv«tl
(with the r>;iit incident iheieli!,! as t" liirf
thus held, and that deli ndaiit h;i.< ciitil
therefore to dii:train for the wlinleniit inarr
Kelly r. Irwin. 17 <". !'• ■'<•", ivni.irki'l ii«
and not followed, //ullmi'l v. I'mi'i'iiif.
H. I.').
One of tlie defeinhuits ill an aetimi'iraK
fill distress, iiad assigned eertaili iv'it In Jj
<lefe!idant, who gave the tenant iiiliiiiititf' ""i
I.
0!):i.
'IN.
AssK.s>MKNT isj
' riiii.ic Siii„„i.,
lO'.lt.
I'ulNli-KKKI'KII.
lOlCi.
I'K.s' \V.M!IIA\T -5
IK !'i.V(K.
It Kill! ItK.NT ON F.si
in; III IK.
NT.
'm/jvu'/i/'/i;;,
•I'ivril niil I'l'ipiii ai(
lease silliM'inirut t"
I iliiTitnl till- triiantl
{ii>;iir, w liii'li lie i\\\\
;r(' ciiiilil lint illslJ
ilisi'll' |iiit all tii'ltuf
1>V liis tiu'iiiiT rciiii
/,'-j (.1. 11. :i!i.
a tel'lii : 1 1, iliirilii;!
mloiin till- |iriiiKTty;
t, |>llls :i pi rsnii ill [
uisr to 1 1. ; .\. .ll-tn
•Inll. ; ll(M,4l,t|.
I,; I, 4 (,). I!. '.'Us.
, cli'«ii'fi| tlint lii>i\e^
III' lii.t laiiil.
f cxei'iitors, tliiirij
rs, to seal, exiriiU',
iiiiiilit lie ni'i'wsm' I
llllrliasi'l'
H,U.
lel-e.st ill tlh'fXt'iUll
luel', llllil eiiU»i;i|«™
liii till- relit aciTuiinj
1.1. .Vk
lii.iil wa.sso.
tram a
Iter ll
IS MlM
1. //o,//.,./V.
ii^elit ior tliil'ilifl
Ilia , iiiiil ^ali'i'l"!
lleM
ill. I'f
lie (.
lailitill' IivJwll
iiolher |Ki>"iiiii|
litlilv tenant, «i"''
,.lcr.l
• to tlieiilainlilll<|
•aiit ol tlie IvHrt
l.o, holiliii^
llerete
I'lViii
as
t" I lie
;i
'111
(III
/ V.
in
ill)
el
ant
ant was
1 liole l-i'llf III -Iff
arki'l iilj
I'tliiU
.irw
1 ri"it t" »J
aiiititf' 1
m
DISTRESS.
1082
I Uflil, that tnch ftu ftSsiL'nineiit ooiifcrroil an
Ljitf ami tl'''' '""''''■ ■* A'""*^. >'• "'. *"*• '•. 10,
i.isiL'iiw "'''" *''ititli^<l to (listniiii for the rent
„ .stiiiii whether tiic ti^niint iittoriit'd or imt.
„i:\.. „••,,;/„ 17 (MMVJ.
\ l;iiiilloiil, after loasili^' certain pi-L'iiiises.^ liy
,. 1 "aHsi'iieil, traiiHferri'il, ami set nver" *ii
two ilistalliielits (if till' rent reserved, ' '
1
ii.iiitfil nil" his attcirnev tci «ile fur, eolleet iir
V liv laiiill"'''! ■•* "''irraiit, if neee.ssary, in lii.s
V- |i',i,||,,i-,l')il name ; Held, that the ilistru-
'^.iit ,eiitiiiii'"l a ;;rant, and (if a rent chaijie,
111 in.'iir|""'''"'l liereditaiiielit, aeeoiniianied
tti I I'laiHc "' distress, and tlierefure not of a
lit seek, and that M. eoiild distrain for the-
k|it ill lii:" """ ii:"i"' ; '"'t *'''''^' whether rent
,,,,,r rent seek, he had e(|iially tin; iiowerof
'„U,in.l.r4"''"' il.c. -'S. //(I/.. V. ll7/(Ve, HI
; 1' 47!!, allirniing >■• ''. ISC. J'. 4.S0.
\ ,liii«- ill ••> niortgnjte, that thu innrtua^'or
niitiiiile ill liossession, eonided with liis
iciupiti'iii ill imisiianee of it, and with a eove-
Inr ilisticss, in aeeord.inee with the terms
I laibi.' 1.') of the second sclieiliile tn "JT \' -H
,. .'il, fivates the relationship of landlord
liltiiiiilit iit a lixeil rent : Meld, that liy the
llfiilim' of iiiol-t.oaoe set (int. tlu^ teii.aney
lejt.'ilwat until the (lay of iv|iayiiieiit of the
Inciiml. fill' •> d' leiiiiinate tenii, .iiid therciifter
MiUKV at will .It an annual rent, incident to
kicli tfiianey was the ri^'ht of distraining' ii|ion
, ifimhIs (if third iiersoiis ii|)oii the premises.
\ft\fm\itmHliniik\. Kill;/, l!M'. !'. lOti.
.n rcjili'vin, eliarfjiii),' a distress of |ilaiiititl"s
ill;-, .Icfcnilaiit avowed settilij; out .a lii(ir(,^at;e
(cntcl fii liiiii liy oiH^ I'., in piirsnance of the
I roi"itiiin .-*liiMt I'orins of niort>;a^'es, and
limil llwt under the proviso therein I), was
ssnl III tlie ]ireiiiises as tenant of defen
jiiil sii eoiitimied until after said dis-
; thiit |i. made default in payment under
I nii'rljii:"'. 'mt defendant did not enter liy
((Hitiuh'iit. Iiiit permitted \K to eoiitinne in
(i]»ti"nas Ilia tenant ; avowiii).' the takiiij; of
iitifi'ii l'iiihIs as distress for .-irrears of inte
-lli'lii, "II ileiniirrer, ;:oiid, for that l>., so
Biivnij.', was tenant of defemlant at a lixed
It KiiiK til.' interest on the piimip.il sum
diml; tlwtilcfeiidant had the rij.dit todistrain
urli interest, "liy way of rent reserved,"
limiiiTty (if third persons on the lands
rtfit'iii ; and that the coiitiniiaini' of the
It^.V"!' i" l'""'""'~i"ii. after the (lay n.uncil for
ii'iit. witli the permission of the inoit^aiiee,
ititiitt'il liini tliereafter tenant at will of the
^ijicc, ami on the terms of distress con
in the iiioit|raj,'c. S. ('. MIC. I'. 480.
Ul<". >'. '■ -dC. I'. .">l!l. reversed on appeal.
|C. P. 'iTIi.
iihlur liail Ih'cii made f.'iviiio .i receiver
ity to ilistrain for arrisirs of rent. I'pon
la|i|ilii'i>tiiiii iif ;i tenant distrained upon for
p:ii',;(' Ml this order, it .alipeared that the
i(\ li;iil ilitcriuined iimre than six nionths
; tlic "fill 1 to distrain was made, so that
te»» cMiiM nut he made under S .\iinf!, c.
I. li Mill 7. The order to distr.iin was llii^re-
idisoharKcil. rnjinii v. I>iiii/,,i, (I I*. |{. |i>7.
liy. Cliumli. HdlincHted, liijin-i: -Hliike.
|(o irntiie iiwl he ({iven to a tenant of an
licitinn fur an order givinj; ;t rttceivi.-r leaic
listraiii. Ih,
i. For ii-liiil I!' iil^.
(a) Itml lint jiiii/iih/i ill Afiiiiii/,
A distress may lie made for rent for a sum
certain iiayalde in prodilee at the market |irice,
and sneli distress niav he sold. '/'Ikhiiii.iiiii v.
Marnh, -J <». S. ;»."i.">.
A rent of a snin certain reserved (layalile in
leather, lii.av he distrained for. < 'iiiiiiiiiiui v.
//;//, c. ( >. ,s; ;i(i:{.
<,>iia're, as to the ri>;ht to (li.-.traiii for the noii-
fnllilinent of a contract respeetiiij,' certain rails
aoreed to lie delivered in lieii of rent I'nliiii-
■■uiii v. ShiihU, |."i C. I'. ;{,S(1.
Defundant luiuiud a farm to the plaintil!' for
tivo yts'irs from Hist Man h, ISCiCi. Me was to
lind the te.'ini and seed for the liist year, "to
receive as rent for the first ye.ir two-thirds of all
the >,'raiii when clcaiicd, threshed, and re.idy for
market, also oiif third of the straw, turnips,
and root crops, .uid half the hay ; for the re-
in.iiiidcr of the term to receive one-third of all
the (M'ops, with the exception of the li.iy, of
which oiiclialf. " Seiiililc, that the rent was
snlliciciitly certain to warrant .i distress, and
that such di.stress niij;lit ho sold. Xuinri/ v.
Ciiiiii,//;/, o;i t^». It. ;{;i.
(h) OHk rCii.^ri.
A plea of distres.s for rent, on a deniisi; of a
lioiise and other premises to .A. ;it a certain rent,
and that the plaintil!' occiipn d the house with
.•\. diiriiii,' .A.'s lifetime, and .•nl.r his death coii-
tiiiiiiMl as defendant's tenant, .ind that defendant
distr.iiiicil for the rent of the house and other
lircinises on the plaintill's ^ouds in the house,
w.is ludd liad, .is the |i| lintill', iiiidcr llu^ deiiiiso
to him, was lialdc for the rent of the house only
after .\.'s death, .and coiild not lie distrained mt
for the rent due for the entire premises demised
to A. S/nit/iiii v. <'/-oo/[w, li (t. S. .')S7.
.\ Landlord agreed with his teii.ant that if Ins
should not paint the tavern outside, and tho
sheds and driviiii,' house, iVc, in Is4;{, the tcii.ant
mii^ht do it in 1.S14, and charci. it against the
lent of ISI,".. 'I'he laiidlonl did not |i;iint ; tlni
l( n.iiit oiilv liei,'.iii to paint in .liinc, I. S I. "i. during,'
which iiii'iith he )iailited oln- side and two elid.i
of the tavern, Init had not tinislied p.aiiitiii^,' any
of the liiiildin^js on the ll'th of .Inly, I.Sl."i, when
the land' rd distrained for a i|iiarter's rent diiu
(III the 1st of .Inly, lH4,"i: He'd, ill repli.vin, that
under the ti lans ul the le.ise with respect to tho
p.'iintiiiif, the 1,'tiidlord iiiioht distrain for tho
(luarter's rent due on the 1st of .Inly, l,H4."),
thotl^'h the paiiifint,' w liiidi had lieeii then lieynn,
Imt not eompleteil, exceeded the (|ilHrter's rent
for which the l.indlord had distrained. Mil/iiiiiie
V. //.»/■/, 4 (,». 15. .VJ.-).
Where a tenant, with the knowledge and con-
sent of his l.iiidlord, takes a lease from another
person, to whom the landh'rd has tr.insl'erred
the reversion, this ainonnts to a surrender in law
of the leiuse ; the relation of landlui'd and ten-
ant no louver exists ; and ciinsc(nitiitly the ri),dit
to distrain is gone. I.i irU v. /);i<o/-.<, ,S (.». H. ,")7ti.
.•\ landlord may astiign rent, and since the 4
Ceo. II. c. "JS, s. ."i, n^nt ( liarL'c or rent seek, may
bu diHtntinc'd for, and liy tnic who has not tho
! !
i
If :''• W'
' i'
1 1 c •'
1083 DISTHEaS,
rcverHidii, an, for ilistiinco, tin; iiHsigiioii of tliu j hIiiiuIiI Ik'ciiiim' iiiscilvont, (ir tiiki' tlic
' ~ " ill '
runt hIiou.iI iiniiK'iliiitclv bi'ciiiiii
"111
liiiiill..r.l. Whit, V. /A)/(f, 17 V. P. .Vi ; .S'. C. 1»
(". I'. 470.
The tirHt and si'conil I'onnta of the declaration i "i"" "";-'";, ' '"•, ■'■' "•""• "" r-'.v .my iH.rti,,,/
wore rc«i..,Ttiv..lv for -listrainiuK wlioiv no rn.t ' ^''^' f'\"'' ■""' ■'"'•• tl't' mTniu „f ,i„
was duo an,i for rx.Tssiv.. distrr.K for rrnt. It : H"'»'-ttT y ja.v.nj.nt W.Mn... ms„lv.,,, ; j,?
ai.i..Nvr..d that dcfrudant had l..;,se.l to ..laintitr I '='* ''''^/'•"l '''t '';"' t>»', '•'«l't ,t., ,|i,tr;„„,,^
for a turn, of wars ...Ttain |.roinis..s, mrtions j *'''' «"'"''^ "'' *' •' '''•'■''^U''''''"';'- '■•'■ tl,,.,k,,
of whi.h w.nrat the time in the ooH.Jssion of ! 'I"''"-V';'>' I"'.)'"'"*' "' •^V* '■■"•'',"'■■" M «•
other parties, and that these parties retained pos- | ^•>>«<;'l '•'";. ''^-'t";''^ the n.solveney, l,„t t|,;,t, j,.
any insolvent aet, the then eiiiiitif ,„,,,« . i
•' . .... •<■ 'i'i.in«f|i
the torni V lid. M. failed to ji.'iy ai'iy' '
the .STOO, .ind after the aeeriial
((iiarterly |i.iyinent lieeann-
HU.ssion a-ainst the plaintill'.'an.l refused to ^ive ' "ithst.mdn.K thf -litlerent pr..v,s s ,.,„„;,„
them up to him. In eon.secp.enee of this, defen- 1 '" ^ "' ''''^''■' '"' ;'""'', ""\ ''-'^"'f.' '^'iH ,i,;
<lant <//>.-• tl,r ,,r,nran„„ uflh ,l,:^l ./.ar, aKree.l ' *" "'V ''""" ' ^'l'' "";. ''*""''; '^ ^i •
with i.laintitrto an al.atement in 'the rent for i '";^:'':."''.*''^' ! '^1' "^ytion nt tlir |,„„K,
Willi piainiill to an .loatemeiit in the rent lor r i.,..- i- i ■ r 1, \ , ••"•'i\n.; xtt
that year, and -ave him a reeeipt for the l.al- ! "j >«<••'._; '«V '',';' '.','' "'^' "■'"''^' '''"<'■ ''•#■ J
ftliue, wliieh plaintill' p.iid ;is the amount of rent j ''"'"'"- -I t . I • I- 1
I'l
the
line upon the Jireinises ; defeiidiint, however,
8ul>.sei|uentiy distrained for the sum a^,'reed to
be remitted : llcM, ilistingiiishin^ Watson ''.
AVailil, 8 Kx. .S.S."), tliat the agreement hetweeii
plailititl' and defendant as to ^he aliatemeiit of
the rent did not cn'ate a iic^w tenancy liitweeii
them at a new rent, e'ltitling defeiid.iiit to dis-
train tlierefor, because the agiiement was not
made itiilll iij'li r lln- i .ijiiritHim of the ye.ir, to
wliich it alone hail refereiici', so th.it the rela-
tionship of landlord ami tenant could not have
been created for that yiar, and the sum agreed
to be paid could not have Iteeii rent, tint a mere
sum ill gross, and coiihl not coiiscc|neiitly have
been distrained for : Meld, also, that the |ilain-
titr could Hot recover on the tirst ami second
uoiints, which were fr.imed upon tiie assumi)tioii
that the plaintilV \mis tenant to defendant at a
certain rent. A''//// v. Irtrin, 17 ('. 1'. .'{."il.
Defendant leased to plaintill' certain land at a
yearly rent of l.-is. per acri', and the ta.ves, .so that
said taxes should not exceed t'KIa year, any sum
above that to be piid by the lessor ; and it was
provideil that the lessor might sell any jiart of
the farm, miking a reasonable deduction from
the rent therefor, to be clctciinined liy arbiti.i-
tion ill case of dispute. The (irand Trunk rail
way company gave notice to ilefeiidant that they
reipiired a portion of the land, which \w con
voyed to them after an arbitration ay to price :
■ — Held, I. Tli.it the kind t.ikeii by the coinp.iny
was .sidd by defendant «ithiii the meaning of the
lease : '1. That tlu^ abatement from the rent
should not be nii'asurcd by the interest of the
moiuty paiil by the railway company, but sliouhl
be determined by the jury, ii|)ou a (luisideratioii
of the comparative value to the tenant of the
land sold, assuming l.ls. per acre as the aver.ige j
value of the w hole ; .'1. That after the sale the
lessor could not distrain, without lirst ..rranging
w olf'ering to arliitrati! an to the amount to be
ilediietcd ; 4. That there was no ground fori
claiming any abateiiu'iit of the taxes from the j
i;iO on aecouiit of the sale. lihktr \. liutllii, 17!
y. H. 4(i."». :
Defendant leased to one M. at an annual rent, {
anil as one of the covenants in eonsider.ation of
The SIst scctiiui of the liiMilvint .\(t..i \-,
:{•_• it ;{;i Xict. c IC, restricts thi' I;iim1|.ii,1 t..
year's rent where he has distr.iiind i.x n,,,
before the insolvency of the tcii;,iit. Mi
//iiiiiilliiii, in ;ip|ic:d, '2'2('. I'. HI,
deeisiiui iiehiw, "J'J (". I'. \'M.
i'cvcrsinj;t
3. Tliiii' (if DlMtrdliiiiKj,
A distress more than six mouflis iil'tiiixinit
tion lit the ti'iiancy is illegal, ^nul ,i (■■nitiinniij
of the tenancy will not iiecessinly In nniil
from the mere fact of the paitv iiiiriiiiiin |
pos.se.ssion. .S'(c« c v. Ilnnni, 4 (i, S. |(i;t.
\ iileaof distress for rent under .iilciuisiaitk
.\ Jill
the lei
use had exiiired, was held liaij, ti,r n
st.itillg that the ilistress w;is iiiiidr witliin .
calendar months .iftcr the dctcnniiiuti i tl
lease, according to S .\niie, e. 14. Siiv'h
Crnnti, (i (). S. ."(87.
A lettiiig.it an .aiinuid it ut c(lll^titlltl^;■ ua
tenaiu'y, w hicli eontiniics at the siuiii- mit Jiil
the second year, if the tenant rein.iin in |«,,k:
sion ; and tiie landloiil ui.iy distrain hi tij
lirst vt^ar's rent at the cud of tin: .hchiuI veil
The 4 Will. IV. e. I, .s. -JO, iC S. T ('. ,•, \s,^
it,) does not deti riiiine tile teimiuy ,it thii.iuli
the hrst year, so as to iii.ike it iiecissan tmlii
train within six inontlis iifterwunls. .!/<■' l-m
ijh'iii V. ISarkti; I <,•. !'•. Jil.
\ landlord cannot distr liii after Ins iiitin
in the crtt.vte has expircil. //iirllni v. .Aia-Ii
7 (,». 15. .')4\
See Mill/ V. Sinri, '^4 ('. I'. ;t!lil, [i. KlvS.
4. I full' III III' iiiiiili.
Where ,i siib-lenant has an apartiiiLiitwitl
outer diMU', it is illcjjal to Incak iiit" tli;it
meiit to make a distress. MrArlhurs. Iliilii
M. T. 4 Vict.
The I X'iet. c. I(i, has not di^piliHcil with til
necessity for two sworn appraisers. SlMi
V. Ai-ili'rh/, li (». S. ;UI.').
Ivcpleviii against a landloid and his laililff^
goods distrained. It appeaici
anil lis .me or llie covenants m eonsi.leratioii oi „,,; .li^trained. It appeared that the
which the demise w.is inade after reciting that ' ,,.^,, . t„ the plaintilfs' stmv. win, t.l.l
M. hadagreedto pay. ■<<(M)/v/ ,<•,,,/,;,,,,, /,^,o,m/ 1 ^,, n,,,eeed and they would ivpkrv, .m.i
ri'iil, lor the purchase of the good will ot t he i ^. J.^.^t^.,! ,,j,„ j,, ^^.j^,. „„,„. i,anvl.s ni >|
<leiiiised premises -M. covenanted to pay the ^.j,;^,, ,,^, ,,i,,^ ^,,,1 ,iit,.i„anls adv.rtisf.l tiid
$1()0 111 ten (piarterly payments of .«!7U eaeh, | f,„. ^^^^^, i„ the usual maimer: he diil iint MJ
with a proviso that in ease of torfeiture of any j ^^^^^, ^,,^^^^^ ,„. 1,,.^,,.^. .^,,y ,„„, j,, |„,s.sessi"ii,"rur
of his covenants, the said i?7(H), or the balance ] ^^.^.^^j^ ^^ their production at the time.. •:!
thereof, w.is to become at once payable h,/ ini;/ 1 r^iyi,,,,^ ,v8 hj. said, on the pi.iintills' ;k<iiMC(
o/ruiil, and with a further covenant that, if M. ! ^^^^ knowing that they intended tn r^iiltv.v :
DLSTUESS.
1086
take tlir l,,i,....,(
r-'.V .•my |H.rtHo(|
'•i\>'>l''l "f the turtj
5 ilisiilviiit: Hil,!
,'lit tu .listniini,,,!
•ciiiisrsi,,,. tl|,.,Jj,^l
f!it;li tli:it lia,l«.j
■fiicy, Imt that, M-f
|iriivision» cintomll
itiitc S Anil.., i]\.\\\
lit' tile llls..lvvli(.\^|
<ilu ST(M). (Jrimj
lloolvcllt Ai'tiil 1
s till' ImikIIim'iI t'HiM
(listv.iiiii'il inr iu,|
K" tiiliilit. .l/.i..,Ml
1'. 411, ivMTsingt
10.
ifrnimiiij.
llllUlths Ill'tlT l-Xllil
III, uiiil a I'niitiiimaM
it'i'ussiii'ily lie iiiijili
o iKU'tv ruiiniiiiiig il
(•/,, 4 ( i. s. i(i;t.
it uniU'railiMirwait*
■us liflil liail, liT 11^
WMS !ii:iili' witlim !
J ik'tcniiiiiatiiiii ni tt|
le, c. 14. .v/i'(i'/"ji
•lllc(ill>titllti> ;' Vilrt]
iit till' siiiiu' niit iiil
iiaiit I'i'iiiaiii ill |«'
may ilistraiii fur tlij
il of tin; Moiml vrH
i, iC S. r ('. c. N!t,l
I' tfiiniiiy at tlivi/iuli
,kr it lUH-osan t"'
li'i'wanis. .1/f' ''*
•liii lifter lii.i iiitcn
, //,(/■/'.;/ V. ./.ii-rH
I. 1'. ;!',lil, 11. IONS.
Ian ajiai'tiiii'iit w!tlii|
lii'fak iiitiitli;it aj'Jl
j.l/r-.IW/iHi'V. iri''I-i(|
lit llillH'llSI'llwitlltlj
^ilHiraisfrK. >'"''lif
,1,1 ami liis Uiiliff f
■an'il tliat tlif l«iS
' stciri'. "lii't'.M tii|
la r.'|ik'\y, iiii'l'l*
■nil' liaiivis III >i'irill
laiils ailvi'rti.<fil tha
I,,,,. : !„■ iliil ii.'l M
1 ill |iipsses.<i"M, "f'T
|in at tlio tiiuf I
|,|aiiitillW »«iiran(|
ItcmluiUii rc,iltv) :•
11 ti i siillii'ii'iit seiziiru. Fiiiu it nl. v. ,1A(."- i
\ llftiliU' HJ/l'll I'LTt.lill K""'l'* llll'll'l' il k'lllll
li.pl,. warrant, t'ur ri;iit in iirriMr, Imt illil not
^.iii,,i„ ill liiKsfscioii, I'f t.iku iinv fnrtlu-r steps
. [.^^.^^^t^ it, t'.xifpt tliiit, lis tliu jury t'lHiiiil,
-jl/tiMiiiit vvai Clin- itutoil the l.uiilliiii'.'s ii>,'fnt
. j^Ij'^, iiin^oinimio' till' KiMiils fur liiiii iiniler tin,'
..' riMt Altir iiLiirt! tliiiii 11 nionfli, ii in-rson ,
, ji , ., |ii(in;,;a;4c mi tlli' ;,'ii(mIs tmik |ii)ssi'ssiiin
UliiiUi it, ^11"' ri'l!i.iV(;il till' gunils, till- w liii'li tilt)
lUiinl r.'lili'vieil ; IK'lii, tint tlif .ic'linn I'imltl
In, I't !».■ luiiintaiiieil. A'-"' v. /,'i.//. /•. ■.';( ('. I'. 7(i.
^ iliitlii'i'- y. /'"< •"'"•'^' I. !'■ «>'••-■
,"i. 117)1'/ III"!/ '"■ hiiiiiiiiii'ii.
la) (!oii'!< III' 'I'liir'l I'lirlo^.
\ str.uij.'i'''" wliosL' 1,'iiiiils liavi' Im'i'II siI/imI on
ftlii' nreiiiifii'^ "' 'i tenant ami ilisti.iincil fur ivnt,
|tiiiii"t. any 1I1IIIV tl> '" till' tt'iiiint liiinsi'lf, i|uus-
Iti.'ii till' laiiilliirirs ri-lit ti> ilcniisi'. Sni'iih v.
f. iivfiieil a liiiili^r anil sinuki' )ii|ii' wliii-li hail
(tn cri'i'ti'il ill 11 Imililin!,' of wliiili lie was siili
ipj^.. Oil till.' I'.ttli I'eliriiiiry, tliey wiri' sulil
ioriitv taxi'.-i iliu,' liy liiin, ir.d imiinlit Ity tlm
»)Uiia:rt'; Imt tlio wlmlf • arcliasi iiKiiiey nut
lieiiiiiv:"''' '''^'.^' "'*''■'' '■''' '" '■''•'''«" "' tlif ''itV
iiuUrliiiii. On tin- -.Sn I, lie setti il the liivl-
met mill was reiiiiiviii;,' the jfomls or the 'Jlith,
fhi'n tlii'.v «'i'iv sei/eil fur lent iliie tn the iirigi
„ laiiilliirii: -Hi'l'li that tlii'y wore lialile to
ich stiziiri.'. LiiiKjl'iii V. liiii-iiii. 17 i). I!. ooU.
Htlil, tint il jiair of liorse.'i liuloiigiiii^ to ft
.«i:tr, wlliili were ilriveli on to the |ireliiises
»1 tiiil, till' party in whose eliaixe they were
iiijiiit'i the liiiiise, were Hot sei/ilile for rent
thi'V «urt' ill ai'tiiiil n.se at the time of the
(■„,„•/, V. Cuiir/an/, Id ('. I'. 4!li.
lb) ErfMpt'umnj'oi' III'' In iir/it i,f Trudi-,
] M.. 11 shiplmililer, c.irrieil on liis ImsiuuHs in
Ijarl li' i.s-iil frniu A. The [ilaintill' .sent two
klstlu'iv til he ri'iuireil, Imt .M. not having
llfcii'iit means, it was agreeil tint the plaiiitill'
hiul'l fiiniisli the materials, ami he piirehaseil
tiiii M. Iiir the piirpi-.'-e some oak tiiiili/r then
itiwyaiii. Tile plaintill's foreiiiiin tuok pus
isii'il III it, aliil a iiiirtion hail lieeli Winkeil up
jTtlic jihiiititf s anil M.'s men, wlion A. ilis-
liiK'il Imtli it ainl the vessels for rent : llehl,
latUitliit aii'l tile vessels were e.\eiiipt fnnii
fjtftss. (I'lW.i-v/iMvv. .l«/Vr/i(/., Klt^t. I!. 401.
I (iiiikIs vi-re uDiisigiieil to It. liy plaiiitill, with
fti'li iirii-e.s allixeii in the iiivoiee, lielow wliieli
(Was lint til sell, ami all iihovc which he might
!e|ii»r liiiiisel:; ami it apiiearcil that he wan in
tluliitiit traiislerriiig them when convenient
• lajiiiiiit lit his own ilehts, charging himself
rillitbi;ma.s siilil at the invoice prices. I'mler
py arrtiniataiioi's, therefore, he whs not paiil
y wmmissiiiii on tli'j sales : Held, that such
s W'.i'e Hot exempt from lUstress for rent ilne
ill IhiMiliil v. iJiiriHit III.. •2:\ Q H. lU.'J.
[ AiU'iigine anil boiler were left with I), liy the
Jiiititl til lit lepiiireil anil sohl liy him, the re-
■"^tiiln; uiaile ill cimsiiloration of the use of the
engine .'iml liniler while in his possession ; if a
"ale slioiilil lie iiiaile within six iiioliths, I) to ]iiiy
plaiiitill' .5400, anil retain anything over as Iliu
eonimission ; if nut sohl in .si.< inonths, plaintill'
to lie at lilierty to ret.iin the gooils, l». to leavo
the same in repair, witlunit, elitirye, ami to pay
nothing for their ive :-- llelil, tliit I*. ai'i|iiireil
no lieneticial interest until the repairs were
iiial'i ; ami, ."^eiiilile, that they Were exeiiint
from seizure, for his rent. Mm/ v. Sfi^i-rn el ill.,
•_'4«'. I'. :t!M).
(c) I'llillli l-i 111 ll.^l■,
The aetiial user of gomls, of whatever kinil,
exempts them from seizure, either liy I'.istress or
otlierwi.se, ami whether, in the ease of ilistress,
there lie a sullieieiu y or not of otlier gooils on
the )iremises lialile therefor. .M'lllir v. .Millii;
IT ('. I', -"-'(i.
See r„»,-/( V. Crini-/,,,;!, IOC. P. 401, ji. 108.').
(it) Sli.,.,,.
It is illegal to ilistraiu sheep for rent when
there are other giimls upon the preini.-es siitli-
cieiit to satisfy the claim. //'//" v. W li'ih , •2:1
('. I'. .-..
(e) .Milili'i //iii:hi-^.
A )»i'rsoii serving with or attaelieil to a militia
c iv.ilrv troop as i|iiarteriiiastei is an ollirer there-
of, aiiil his liiirse protecteil from ilistress umler
see. Ill of IS N'ict. c. 77. JJiiri i/ v. < iirlirrh/lil,
2()('. I'. I.
(f) I'h'iflili III E I'll' iil'ii III nr I'li-iliiihii'l' 'III Litir.
A sheriir seizeil gooils umler execution, liut
left them in the pnssession of the execution
ilelitor upon receiving a receipt for the same,
with an iimlert.iking to ileliver them to the
shei'ill' when reip.uisteil ; lli.'lil, that the sheliH'
Il III not such a possession of the gooils as pre-
chiileil the l.imlloiil fiiiiii ilistraining. Mi'lnlyre
V. .s'/K^t i/ ((/., 4 ('. 1'. '.'IS.
( '. owneil a lioiler ami simikepipe, which hail
lieen ereetdl in a liiiililing of which he was suli-
lessee. ( »ii the lOtli I'Vliruary, they were solil
for city taxes ilue liy him, ami lioiight liy the
plaiiitill'; liut the whole purchase uioiicy not
lieing |iaiil, they were left in charge of the city
i'liaiiili"rl.iiii. l>n the •J,'{rii, he settleil the lial-
aiice, aii'l was removing the gumls on the "Jtitli,
when they were seizeil for rent ilue to the
original lainlloiil : lleM, that the g Is could
not lie ciiiisiilcieil as in the custody of the law
after the sale mi the lOtli of Kehruary. Lmu.ilon
V. Ii,ii-i,ii, 17 *i. IJ. "ii'iO.
Although gooils Doi/.uil liy the sherilF cannot
lie distrained in his custody, still they must 1k3
removed within a reasmiahle time after sale, in
oriler to protect the purcliiiser against a distress
for rent ; and in this case, under the facts .set
out, it was Held, .\. Wilson, .1., diiliitante, that
' the goods had not lieeii removed within a reason-
! alile time either after the sale or after notice to
\ plaintill's to remove them, and that in either
] view they were lialile to defendant's distress for
I rent. Iluijlim el ttl. v. Toicers, 10 L". 1'. -87.
I ; '.
:'ii|
^ I
' I
■ • w
108/
DISTUEHS.
l'"i
A l):kiliir HL'i/u(l ccrtititi h«(u\h ninler n litiiil- j
lord's ilistrcHH wurriiiit fur runt in iir. .iir, Imtdiil i
not remain in ])oHM<'MHion or tiiku any furtliur
stt'iw to cxuciitf tlio uiirrunt, fxccjit tliiit iim tlif
jnry loiiml tin; tenant wax conKtitnti'il t)u> land-
lord's iijitnt to t.'ikt^ iiosHCHsion of tlii' j,'oodM for
liini nudi r tlu' uarrant. /Vt<'r niori' tlian ii I
niontli. till' clcfcndaiit liavini; a chatti'l niortuii^c
on till' ^'oiiilx, took |io,HM<'HHioii iindiT it and rc-
nio\'i'd till' 1^ Is forwiiirli tile landlord liioii^ht
rt'|>li'vin ; Hi'ld, that the attioii ronid not lie
maintaintd. /I'nr v. /{n/iir, •_';< ( '. I'. 7<'».
Sec ll'(//;'(/».iv. Hn/i, •-'.'{('. I'. -)(JI, [k 10H!».
(j;) Ajli r ri iiKirnl.
Clivttlc may I'u taken on tlie lii^diway an a dis-
tri'H.M, if driven oil' the land in the view of the
bnilitr : and if the le/^ality of a diHtreNn turn iijion
the |ilaee of seiznre, as whether it was a lii;,di
wa\ or not, that jioint should he left clearly to
the jury. Ihilsh.l V. Mc<'i<riiiiii-k 1 1 fl., K. T.
;t N'iet."
In ease of a fraudulent removal, the landlord
can follow the i,oods of his ti'iiant only, and not
those of a strant,rer, whieh had lu'en on the pre
inises. .V.-.lc'/////-v. \\'iilkl<;iil III., M. 'I'. 4 \iet.
A landlord on t lie day of thu removal of goodH,
rent lieiiii,' in anear, forhadi' siuli I'emoval until
it was paid, rpon a sei/.un^ on the luLtliway for
sueh rent : Held, that a sutlieient iiiee|ition ol
distress had t.iken |i'aee to warrant sueh sei/lMe.
r,ih:i- V. >•,,(..■ w „/., ;( ('. 1'. :.'7o.
r"|>udiating nny intereHt in the tirin. SnU
i|nently, the goods proving inHntlieiint, liyf,.,
of a eliattel mortgage, the assi^^nie tiiMM ^ ,
he eoldd not eontinue responsilije, ainj M.t||. T
niion, on the '.'4th of .Septemlier, i-iMiiil an(i,|j
ditress for same rent; llehl, that tlu' «.,„j
distress was had, for on the aliandoiiiii,.|it ,,itu
lirst distress, whieh could not he •<.iii| to ha«
lieen at the re((Uest of the tenant, M,', ri;;|it « I
distridn was gone, and he could unly \m\\\
the insolvent's goods, which pas-iil, witli.,iitti|
term, to the assi^>nee. llcM, ,iis,i, that tbl
Heeoiid distress could not he Mipporti i| iiiiijirilil
statute of Anne, as having hecn iiiailc witligl
six months after the detcrinin.itioii i.| tlu' timi
.!/((,'/ V. .V. r, i-H 1 1 III., '2{ ( '. r. ;i'.lii.
7. Siili ll^'(,'lllll/.^ /)liiiii'iiiiii.
Th.
(h) \'i 1.11 1:1 III W'hiirnn.
Wliero a wharf has huen leasecl, ■' with all the
lirivilegcM thereto helon^in;,'," a vessel attaehi'd
to the wharf liy the iisiid fastenings cannot lie
distiaiiicd for rent, not lii:ing on the promises
demised. Siiinlirinii v. '/'/((• lilin/nloii Miirim II.
II'. Co., :! ii. h. ii;8.
Ii. .S'( njiiil /H.tlri'sx.
.\. li.'ivini,' distrained the g Is of I'., for rent
said to lie due to liini liy I'l., and ahaiKloiud the
same without realizing;, ami siihseipicntly, upon
a second distress for the sann' rent, having sold
the goods : Meld, i|i an action for illegal dis
tress, that the defendant lia\iiig shewn no siilli-
cient ground for the aliandoninent of the lirst
distress without realizing, the second was illegal ;
and a verdict .ig.iinst him for S2(> in the < 'ounty
Court was u))|ield. A///(r.v.s v. .sV/Vo/i, lit ('. 1". lit.
I>. was tenant to .M. under a lease, \vhich
provideil that in the event of |). making an
iiHsigmnent in insolvency the term should liecome
forfeited and void, hut that the then current i
(juarter's rout, as well as tlu^ iie.xt siieeeeding '
current ijuarter's rent, should immediately he-
conn? due and payable. On the "Jlst of .'lune, J
187-, I •. maih' an a.ssigniiient in insolvency to
K., an ollicial a.ssignee ; and .M. innnediatuly dis-
trained for the rent, including two quarters .lue
liy virtu(! of the forfeituie. At the reiiuest of;
the ollicial assignee, M. ahandoned the distress, I
mid in lieu thereof ;igreed to look to the iiisol- i
vent estate, the assignee thinking that there
would l)u iihundanuu of property to pay it, but
purchaser of |iropcity sold fur rout, u.
remo\e the same oil' the prmiiscs witlm
reasonahle time after the sale, .l/icn,; \
ilir.'oiii, :^ i). H. ;«.
If the iiroperty he sold on the l.")tli (p| KlJ
nary, and the purchaser I'liters to ninnvi' iii
the premises on the '-'lith .March InJluHm.
w ill he liable as a trespasser. ///.
In the lasi? of distress for rent, tlurc iiiim 1
(ivi; clear days between the day of iliilri'iis umI
the s;de, at the expiration of w liieli the l.tii<ll»ni|
is at libeity to sell ; b\it he has a iv,hiiii,il,lJ
time after tlie live days so to do, ami uiiatiMl
reasonable time is a i|nestion for the jun. Inl
this ease, therefore, the jud;;e li.nin.' liiiLtnlf
the jury that the lamlloril w.-is liniiiiil tn { ,M
to sell on the sixth day : Held, tli.it tluilirrili nl
was improper, and that the iij;lit dir.'cti"iiHiiiiH|
h.'ivc been, after having told the jiiiy tlu'tiiMJ
when the gooils could lirst have hi'iii suli!. Itifl
tlu'in to liiid whether under all tlie I'acts ihtl
defi'ndant had remained an niirea.seiMMi' tinHl
in possi'ssion after the live days heinii' .■idliiiiF
LllHi-li V, liii-lli, 17 <'. I'. •">4!t. See Tlinmi"-''
Miirifh, •_» (). S, 3.V..
I'laintiir distr.iincd upon hlsti'ii.uil. ami :ittiie|
.sale, with toe hitter's consent, puiclia.s(il ;i|»r'[
tion of the projieity .sold, which lie li ft ii|niiirlie|
tenant's premises I'oi' a couple oi days, «liiii iti
was removed, p.irtly by his own si rvaiit. niidl
p.-vrtly by the delivery of the fiiiaiit tnliini;
Held, that though ;is a gciier.il priiivi|ilc U""M|
cm sustain the double ehar.ictcr ef mIIit inJ
buyer, yet wlu'rc, as in this case, tlio tiiiMlj
i.'onseiits to the purchase by the lanilliinl. tlu«l«l
can besuiiported ; and th.relorc ll< M. tliitthej
projierty sold jiassed to the plaiiilitl. nul ttiitj
lie eould hold it .'igainst defend. mi's exiriili'ii
issued snbsei|nently to the s.ih', pr(iviili'.l tlitftj
was an immediate delivery, follnwril liyaii;iitii»lj
and continued change of possession, luiilirLNJ
U. C, c. 45, ti, 4. Wooils V. Itmikin, Lsr.r.H|
In .buuniry, KS7',J, the plaintill', a iiiiisii',iliii-|
stniment maker at Toronto, leiitnl a |ii:iii'iti)J
one .1., at Woodstock, at .'^(i per iiiniitli, nitlitiiel
right of purcha.se, the rent to ;.;(i te\\aril>|a.V'|
melit of purchase money, w liicli was lixi'ii »!
.':j4.">0 ; and several nmntiis afterwartls, «iiiii'.
had paid three months' rent, a written oniitnill
was signed by J. The defendant, .l.'s hiiMlliH]
having caused the [liano to he distr.iintil l"f j
rent ill arrear, it was sold by the luililf wj
m ■iu80
DiSTItKSS.
1(»9()
f I'
111' tiTin. Siilj,
(itlii'icht, tiyriMn
iKiu.' toM'M.iij, I
il>lf, :iii.l M.th,^.
cr, i.-Mli'i| ;l in.,i,ij j
ll. tliiit tlic „■,.,;■
lKinil>>iiiiii'iit ill tji
it !"■ nail I til liai
laiit, M.V riuht J
'iillhl iillly limk \\
\yM*Mi\, witliiiiittil
I'lil, iilsii. tliiit tM
iii|i|"irtiil iiihlcrtlil
liiiii luaili' uitiiii]
ii;itiiiii III till- tirtui
:t!M;.
SI ill 1 fur iflit, :i,'„,;J
IM-i iiiisin within J
Ilk', .l/i'ii', V. .{A
in till' l.'itli iif YA
trrs til niniivi' it.fl
^illl'i'll liilliiUIIU
IVllt, tluTC lllU»t U
(liiv lit ili^tri'.'ii :ii4|
I' W llil'll till' l.tlliljiiml
III' has a rt'iixiiiialiltl
II ilii, ami wliiit i«i|
nil liir till' jiiry. inl
il),'r liavillv illlntMll
las lioiiinl til |iii»iTilI
III, tliat tlu'iliri'ttuiiil
ri;;lit liiri'i-tininvHulil
ll till' jlll'V tlli''.IIMl
liavr lii'iu silL iofi
.'I- all till' liU't^ tkj
I uiii'i'asniialili' liiMI
• ilays lii'i'iii'i' silliiiii
!•. Sou y7i"«i/'<""
jistriiaiil, ainl attwl
lilt, |iiu'rliasi'4 al'ii'T
liirli 111' li'l't iiiM.iitiej
lili' III' ila\s, wlii'ii itl
- iittii servant, aW
ti iiaiit til liim:-|
I'i'al |iriir;iiili'n""M|
Ir.ii'ti'i' 111 M'lliT anil
.„. i-asi', till' ti'iMll
li.'laiiilliii'il. tln'«J«[
.n- II.M, tliatthej
|ilaiiitill', ni'i tUJ
I'l'llll.lllt's l'\l'lllti"ll|
[all', jii'iiviiii'il tlitiel
■ iw.'il l.yaii:wtii«lj
|si's>ii)ii, iiiiik'rt'-'^ 1
\i;,u,l:iii, ISC.l'HJ
liiitilV, a iiiii.sii'.ilia-
_ I'l'iiti'il a iiiaiu'WJ
liiTMiniitli. withtbe
;4ii towaril'ia)''!
lii.'ii was lixeil »:j
ll'tiTwai'ils, wliiii''
lil Wl'ittl'll CiilltWtj
limit, .l.'sla"'ll"[>''I
• Ji' ilistraiiu'il i"f j
lliy the bailiff w|
Irri tlifli'''''"'""' Iwinn till' imri'lmscr. uml tlif
|;Mi'iiiU'it alttrwunU iillnw.'.l .1. !t\-2^ fxtrii
I ill scttli'iii''"' with him. making .'^•.'(M» in all :
liclil. ll'i't ''"' ''viilfiiri' siitlicii'iitly .-xlu'Wi'il
Ithi' iiiiiii" til 111' the i>liiiiitiirs |iriiiu'i't\. iiml fhiit
111,, viasi'ntith'il til inaintuin finviT tnr it iiKaiiiKt
Ulniiliiiit ; 111 111. i'l«". "'i't til'' "!*''' t" ""■
I |^,,,,i„|i,„t iiass.il iiiithiiiK. f"i" UH lanill.ii'il he
l,.,.iilil lint hiiiisi'll' lini'i'lmsi' ii Is snhl liy his
Liiitf. im.io.' -J Will. .^1- «<•«-• I, '•••■'• ''■v'T'
K|,||,,||j,|, as liitwri'ii •!. anil ili'lcniliint, the ilr
fiinlaiits I'liii'ii niinlit l>o luiiiph'ti' liy tln' siilisc-
,,udit ari'aii;;<lii«'iit with .!., yi't tin' |ihiintill',
j |,ln.„„ lull was nut lioiliiil l>y it : llclil. also.
tint ili'li'iiili'iit ''"'ll'l ""t "•■' "I' " '•''" '"•' *■'"'
niil as atfiiiist tin' |ilaintitl'. t'ni' the ilisticHu was
1 ataiiiinl. ^""1 '!"' ^''^'l"* i" "" "".V in the i.'U.i
'tiHlviit tla'hi"'. WillUniix v. fi'/'<'//, i',\ ('. I', rttii.
S. H'l'ii";;'""'. Iri'djiilnr, or ICrriiMli'i- hlitrmi.
(ill Kviiiidii Jiii:
Tri.'Mias.s li>'!< ll"' tl"' ''•'l'- "' I'l'i'l'fi'ty si'i/til as
I «ilbtii-.ss aiiil .illiiwt'il til I'l'inain mi the iininisis
[ BKiri' tli'in tivr ilays aftfr .sci/iiii', Imt tin' full
IvaliK' 111 till' in'iiiK'ity c.'inniit he rt'invireil,
\ji /*■" V, .lAo's/i, 'id. .^, :i.V).
WlnTi' si'iiit' iif the rent iliHtruiniil tnr was
lnot illli' : lli'lil, that I'iise mill lint tl'rsiias,s was
^the I'f i'l'i' iviiii'ily- KiiiilrU-k V. /,(>■, li ( >, S, 'J7-
IVtiif till' |ilaintill"s ;,'iiiiils having,' lu'fii ilis-
Itniliiil tiir I't'iit ntf the |ii'eliiises : llehl, that
it luinlit I'l'i'iiver their value either ill trrs|ia».s
fcrtfiiviT. Iliid'iiisiiii V. I.inrriiiii, 'Jl! l^». H. "i70.
i Wliiri' tji'ixls '''»"' lieeii iliHtraiiieil fnrrent: —
Belli, tliat till' (ilaintitV was I'lititleil tn inaiiitain
vs|i;m liiiawiiiii),'liil iiintinnain'i' in iinssessinn
kvi'iiil tlii'tiiiii' ilit'i'iiilant was I'lasniialily aiitlin-
Itn kci'li till' same, Li/iir/i v, liirLI,, \' ( '.
P. Mil.
, Til'.' ri'i'iiviT ill a eaiise ilistraiiieil tnr rent.
ihitlu' f.illi'wiii).', ilay iintiee waM given liy a jirinr
Miiiliriilu'i'i' that he el liineil the rent, ami
_.. ilays altirw arils the liailill' was witlnlrawn.
rhf tt'iiaiit liriiii;,'lit trespass a^'aiiist the reeeiver.
rill iiiilit restiaiiii'il the aetinn. Sihi/ikihi v.
H«td'Miii, ' Cliy. ;{08.
(h) I'lriiiHiiili ill Affliiiis,
In an ai'timi ii|iiiii the 'A Will, it M. e. 5, fur
ikiiigiitisti'L'ss when im rent wils iliie, the ileela-
Btimi liail imt set Inrth any teliaiuy helweeii
' i; [wrtii's ; it is silHiL'ient if it ajipear that tiie
fcizuix' \va.s iiiaile ninler enlniir nt' a ilistress.
ISlwWiir/v. Aiilii-lii, (I (». S. m").
.\cimiitiii wise fur nialieioiisly seizing a horse
I larjii.' valiit' as a ilistres.s fnr a very small siiiii,
Finn tluTo well! (itlier i.'hattels nf smaller value,
I that the ilelemlaiit afterwanls snlil the linrse
r miu'h less than he wa.s wnrtli, is nnt hail fnr
hliliiity. //i;/rt,H V. Thoiiiimin, 8 g. B. 5tjl.
1 iK'ilaratioii fnr ilistraiiiiny for more rent than
K *i. ; IK'lil, hail, heeauao it iliil not ailniit
ptammiiitiif rent ilistraineil for to he in arrear,
'it'W where the ilistress really took i«lace.
f'y\t V. J,i(kmn, 1 r. L. Chaml). '20.— Ma-
puy,
(iU
('niiiit in a ilt'i'laratiiin fnr a wniiiufiil ilistreNH,
ailniittin>{ that Slime rent was iliie : Mrhl, hail
nil (lemiirrer. ('ni-livna v. W'llnli, 7 < '. I'. '-'I,
|)i'l'i'nilant, in Oetolier, IH'tlt, leiutt'il |ireniiHeH
til line \\. anil the |i|aiiititr as jnint tinaiits, fnr
si'Viii years frnin the 1st nf (litnliir, ak a yearly
rent, iiayalile i|iiiirteily in ailvanie, finm the 1st
nf Uctiilii'l', fii., till' til'st liaMllt'llt In In' niaiie at
the t'nmmeiii'emeiit nf the term ; ainl in the inn-
I'lnsinli nf the lease it was aureeil that the lirst
three iimtrtei's' rent shniihl he line anil paiil "nil
the ilay when the saiil term ininmiiires," ( >ii
the 1st of .laiinary, Is.'iii. ilefi'inhint ilistraineil
for twn i|liarters' rent, illle mi the 1st nf ( Irtnlier
iiri'ieiliiij.'. ri.'iintiH liriiii;.;lit tii's|ia»s, i'iim|ilaiii'
nil,' that the ilistress, if rightful, was merely, a
|ireteliee for getting |insseHsimi. He gave evi-
tleliee teliililig tn slieu this, ami |ii'iiveil that
ill feliilant eiitel'i'il ilitn the limist', assiinieil the
maii.'iueini'lit nf it as if the tiriii were at an eiiil,
iiisisteit mi till jilaintitl's \Nilelea\iiig a rnnm
ilnwii stairs w hii'li she iierii|iiril as a lieil inmn,
ami taking aiinther almve. .iml reniaiiietl there
nine ilays against the jilaintitrs w ill. I''iii' tlio
ili'i'i inhiiit it was |iriivei| that W., the m tenant,
hail siii'i'i'Mili'ii'il tn him his inteiest in the lease,
.'iiiil til it the |ilaiiitill, w hnliail nevii' luiiil his rent,
tliiiiigh nnt then assenting, a few ilays afterwanls
Inn the '.Itli nf .laiiiiaiy) eiitiriil iiitn an arrange-
ment li\ whii'll he gave llli |iiisses:.imi. 'I'lie jury
gave t'7."> ilainages : llelil, that any aiithnrity
ileriveil frnm W., the ill tenant, emilil imt lio
given iiii'viileiiee uniler the general issue, |ier stat.
I I ( ieii. 1 1, e. I!) ; ami that at all events it imilil
nnt have jilsliliiil ileleinlant's enmlilrt. ' Vkiii- v.
.Snu/'liin, 14 (}. II. ."tiW.
{ In an aetinii liy a tenant ag.iiiist his laiiilloril
fill wrmigfnl ilistnss .unl sale, the gist nf the
ai'tinii is the wrmig eiimiilaiiiiil nf, ami therefnri!
a \ariaili'e hetweeli the enlitl'lit set iillt ill tilt!
ilerlaratinn an. I that |ii'ii\ eil is immaterial. /i'i//<-
I ilisiili V. Shiilils, l.'t ('. I'. ;j)S(i.
Ill siieli an aetimi it is necessary tn state enr-
reetly to wlimii the rent is ilne. " .Nnt guilty"
puts in issue the teiianey ami the nwiiersliip nf
the gonils. //>.
The lirst eniint alli'geil that mie II. Inhl |il'e-
iliises as tenant tn ili'feiiilaiils at a eeitaiii rent :
that the jilaintiH "s ;innils lieing there, ilelenilants
wrniigfillly sei/eil the s.iiiii', as well as all the
tenant's gnmls, jis .'i ilistress fill' alli'geil ai'i'e.ii's
nf relit, to wit, .S40I, then elainieil liy ilefeii-
ilaiits, a'.iil afterwanls snhl the .-aiiie fnr siieli
arrears ami I'nsts, whereas mily ."^IJ.S was really
line, for whii'll nlie-liftll of the gomls Wnlllil have
.sullieeil, aiiil the tenant's gnmls alone wmihl
have lieeii more than siillieieiit : llelil, ninler
the authority of rrelieh r. I'liillips, 1 II. \ N.
li.")-!, that theeiiiint iliselnseil no eaiise of aetioii,
for, as a eoiint for ilistrainiiig for iiinre th.'iii was
line, it .'iverreil lin telliler nf the pi'nper slllll,
ami tlioiigh the ]ilaiiitill' eniilil make no teiuler,
he eniilil avail himself nf mie niaile h^- the ten-
ant ; anil if for excessive ilistress, it shmilil have
allegeil ilistinetly that the ilistress was exee.ssive
anil niireasoiialile, or that the proeeeils were more
than reasonalilv siillieieiit. lliiskiiiMin v. Lmii-
riNir (/ <(/., L'.-ig. |{. .">S.
The secoiiil count, after stating the teiiaiiey,
ami that tlio plaintiti's gooils were mi tin; pre-
mises, alleged that the dufciiilaiitti wrongfully
1 M
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IMAGE EVALUATION
TEST TARGET (MT-3)
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23 W£ST MAIN STREET
WEBSTER, NY. 14580
(716) 872-4503
fe' C<'.
L-P-
a: mm'.
'I,
1001
DISTRESS.
10112
(listraiiiud for arrears of rent the said goods of
greater value tliaii such arrears and costs, al-
though a small jiart would have suHiced, and
.altliiiugh the tenant's goods also distrained were
of themselves sutlieient ; and that defendants
thcrehy niade an excessive and uureasonahle dis-
ti'ess for said arrears, contrary to the statute : -
Held, good, and that it was clearly unnecessary
to allege malice. Jh.
Action for taking goods. Third plea, avowry
as ])ailiirs of A\'. H., for rent due by one W. 15.,
the goods being on the demised premises. Third
replication, that on tiie Ttli May, 1870, the ten-
ant, liy deed, releasetl to the plaintiff all his
estate in the land, and the landlord, in conside-
ration thereof, released the tenant from the rent
and covenants : — Held, good, for though the
plaintiff wo\dd be estoi>ped from denying the
landlord's right to tLstrain, the release shewed
that no rent was payable. J/di/irtinl v. Tluu'ki r,
31 {,). B. 4-J7.
Third plea, avowry and cognizance under a
distress for rent due upon a demise from defen-
dant A. H. to W. 11 Second replication, that
b'ifore the demise one ^V. H. was seized in fee
of the land, and by deed, dated SOtli October,
lS(i!), granted it to the ])laintiff, who entered and
took possession, and held it as owner in fee at
the time of the distress. It was objected tliat,
consistently with this replication, A. H. might
have held such an interest in the land as wouhl
enable him t(- make the lease prior and jiara-
niount to plaintiil's title ; — Hehl, replication
clearly good. ///.
(c) Jii.s/ilic(iH(jii iiiiilir Warrant of Dialn'As.
A bailiir distraining for rent need not have a
written warrant of distress, for if the warrant
be insuthcient, but the landlord adojit the dis-
tress, the bailirt' niav justify under him. Jlal-
ntvil v. MvCuriiiack c'i at., K T. 3 Vict.
Where a party assumes to act as jtrlncipal in
inakir.; a distress for rent, he cannot afterwards
justify as ha'iliff, on the subse(|uent contirmation
of the Jtarty entitled to the rent. J^atiihert v.
M<ir.'<h, 2 i}. B. 3!».
To an action of trespass q. c. f., defendant
justified the entry under a warrant of distress,
and the plaintitl' replied <le injuria : — Held, that
under these pleadings, and under the facts
proved, there could be no enquiry into defend-
ant's motives ; and that the plaintitl', having pre-
vented the defendant from distraining, was not
at liberty to shew that he had no intention of
executing the warrant when he entered, although
nothing was done inconsistent with such an in-
tention. Lueas r. Kockells, 4 Bing. 740, dis-
tinguished. iSfott V. V(tncf', 9 Q. B. 013.
(d) Damages.
Trespass lies for a seizure and sale of goods
where they have been left on the premises after
a distress longer than five <lays, no jjcrson being
in charge of them, the seizure and sale for which
the aeticm is brought being subse(iueut to the
five days after the first seizure ; but in such case
the full value of the goods cannot be recovered,
but only special damages. I'houqtson v. Marsh,
2 0. S. 355.
In case for illegal distress, the lilaintitlis m
titled to succeed on shewing that tliuru \\\
such a])praisenient as the law ilir^uts ■v'."'
though but for nominal ilaniages. l/n,/',,; ' '^"
PoKt, 5 0. S. 1. - .' '" \.
In an action fm- distraining wlitii m, rent wi
due, wliere the ease was left to the jury as an urX
nary case, without being expressly iui'ttn tl '.'
to find doitble damages, and witlnnit tlieji- iJi"!',
apprised of the provisions of tlie statntu tl'
court refuse<l to increase the verdict td iliml.'lr
the value of the goods distrained. .S/,,/,,,,,,,, '^.'
(f'rai/i/dii, 5 CI. I'. 405.
Defendant in October, 18.55, leased curtaiii
l)remises to one W. and the iilaintiif as inint
tenants, to hold for seven years from tlii; I'stof
October, at a yearly rent, jiayaMe i|iiarkTlv in
advance, on the 1st of Octolier, \'c., tin., ijist
jiayment to be made at the c()inniciariii,,i,t I'f
the term ; and in the conclusion of tlio Icasu it
was agreed that the first three i|iiartuis' n'nt
slKPuhl lie due and paid "on tile day wlitii tlit
said term commences." On the 1st I'll .laimaiv
18.")(i, defen<lant distrained fortwoi|iiaiturs'rfiit'
due on the 1st of October iireeedini;. I'laiiitili'
1 irought trespass, complainir.g that tiie (hstrcss if
rightful, was merely a pretence for -fttiin,' ]»,.s.
session. He gave evidence tending to' slu'W tliis
and proved that defeiKhuit entered into the
house, assumed the management of it as if the
term were at an end, insisted on the iilaiiitilfs
wife leaving a room down .stairs which sliui.icii-
pied as a bed i-oom, and taking aiiotlier alime;
and renuiincd there nine days against the iiLmi-
tiff's will. For tlie defendant, it was prnwd that
W. , the co-tenant, had siirn^ndered tci him his
interest in the lease, and that the )ilaiiititf, hIi.i
had never jiaid his rent, tliougli nut thuu asa'Ut-
ing, a few <hiys afterwards (on tlie ilth .faiuiarv,)
entered into an arrangement by wliiili hu lmvi-um
I jssession. The jury gave t:7.") damages :-- Ihhl,
that any autliority derived from \V. thu cdttii-
ant, could not be given in evidence uiKk'ithe
general issue, liy .statute ( 1 1 ( ieo. II. c. Illi : tliat
at all events it could not have ju.sti!ieil the- iloliii-
(hint's conduct ; anil that, althmigli the ilaniagts
seemed excessive, the verdict iiuist stand. (,7i«.<«
V. .Sfriji/iiri', 14 (). H. 5!)8.
Held, that the words, " recover dcmlile of the
value of the goods or chattels so distrainuil. aii.l
sold together with full costs of suit," in tlie
Imperial statute '2 Will. & M. Sess. 1, c. .'i, s. .'i,
does not mean double tlic value of thegnmls, \o.,
distrained aiif/ dotdile cost.s, but only ilnnhlf the
value of goods, &c., and full or onHiiary ccst.snf
suit. McVaUnin v. Snider, (i L. .1. 187.— i'. L
Chamb. — Burns.
A reference to arbitration disentitles a iihiiii-
tifF from recovering treble damages ami wstMn j
cases where he would otherwise he entitled to ]
them under the 2 Will. & M. e. ">, s. 4. The ;
word "recover," used in the statute, hikim^
"recover by the verdict of a jury." C<iirhs.
Inviii el «/., 8 L. J. 2\.- C. h. t'liaiiili. -Hums. I
The actiim for double value, uiuler i Will & j
M. sess. 1 , e. 5, s. 5, for illegal distivs.s for rent,
is not eontined to the landlord only, hut uxtemlsj
to those who distrain on his behiilf, or in his J
name or right Hop'' v. WhUi it oL, 17 *.'• !'• '•>"
llemarks as to the hardship of the statute!
allowing double damages for distraining' whettj
1002
! l)laiiitiir is tn.
it tliLTl; was 1,0
ilii'L'ots, fven
len nil vent wi\.
■ .jury asauiii'ili.
sly luft tn tkn,
II lilt tlii'ir liuiiijj
lie .^tatutu, tic
uvilict til iliiiilile
,'il. Sliipiiin}, V.
I leased eertain
ilaintitl' as jniut
S friiMl tlu: i St 111'
ilile ijiuirtevly in
er, tcf., tile lii'st
iiiiineneenn;!it ni
1 ot' the lease, it
uc iiuai'ters' runt
he day wlieii the
u 1st lit .lanuaiy,
\V(ii|naiters' rent,
eediiiu. I'laiiititf
liattliedistiess. it
J f<ir ^;ettiiig ym-
ling tn sliuw tliis,
entered iiitn tlic
,ent (if it as if the
nil tlie ]ilaiiititl'3
rs wliieli sIkjiiixu-
i;^' mmtlier almve;
i against tlie iilaiu-
it was priiveiltlKit
idered tn liim his
: the iilaiutilL \\\m
jli nut then asstut-
the '.1th .hniuary.)
whiehhegaveiil)
aniages :— Helil,
in \V. the eiitiii-
idenee uiuler the
. 11. e. l'.li:tliiit
nsti'.iedtlieilekll-
uuh the damages
must stand. C'.'i'i.'e
ivov diiulile III tlic
;s(i distraiiieil. iiii'l
lit suit," ill the
•■^tss. I, e. .i, s. .'i,
• III' thegiiiiils, kc,
mt iiiily diHilile tlie
ir ui'dinarv ousts "1
L. ,1. Ks'T.-I'. L
disentitles a I'hiin-
mages and eiistsin |
wise heeiititleilto i
,1. e. 5, s. 4. The j
liL' statute, meani,]
I juvv." '■""■'■■*'■
„ C'lraiiih. -I*'''""'
lie, under i Will, (i i
Ll distress lor reiit, i
tl iiiilv, hut extends
L behalf, or m !"» I
1, .<«/., IT C.l'.
1093
DISTRESS.
1094
rent due, when the landlord has acted upon
,.rroiiemi.s construction of a doubtful lease.
Bn.,ri< V. niarhrrll, 3.5 Q. b. '239.
Where a tenant, to relieve his good.s from an
11 ..-al distress, pays the amount of the distress
iiuf'reeiivers his guilds : Semlde, that in an
actiiiii of trespass for the wrongful seizure, he
ij not entitled to reuovei' as d.unages at least the
valiif of the goods. Jfatlic-'oH v. h'll/i/, L't C.
P. ,598.
Iliiji of tilt) sta
distraining "
iitute
MJieU]
(e) Other Canes.
In trespa-ss to land and goods, the defendant
iiistilieil the seizure of the goods as a ilistress
torrent under a demise to A. 15. The plaintiff
reiilieil tliat A. 1!. and the plaintill' at the time
(it said deiuisu were partners in trade : that
liefoie the rent accrued A. B. died, and the
(Icfeiiihuit and A. B.'s executors, in consideration
that the iilaiiititl' would carry on the business
fur his and their bcnelit, demised the same
iireinises to jilaiiititl' for so long as he shoiihl so
eaiTV it oil, without jiayment of rent : that the |
iilaiiitirt' under this demise entered and occupied,
aiiil tlicreiipiin the demise to A. B. was sur-
rdiileiTilaiid detenniiieil : —Held, a good answer |
to the iilea, as shewing that there was no right
tutlie rent distrained for. Strathcij v. C'rooti, li
0. S. ."i87.
AlaiiiUord when sued in trespass for an illegal
(L-tioss, is iireelnded by the distress from claim-
iiy the lioods as his own under a prior bill of
alt. 'r'Ms V. Cntirfonl et It/., 8 Q. B. 155.
Iiianai'tion for wrongful distress, the receiiit by
the tenant fnmi the bailiff of the surplr.s of the
pMceeils of the sale, was Held no condonation
oithe wrong eninplained of, the payment having
been neither made nor accepted in satisfaction
or eiiiniiromise of the injury sufi'ered. l'i)liin--<oii
T. !<IMh, 15 ('. V. 38().
The hailiff having :v warrant from defendant
t" ilistrain, seized property olf the premises.
This «Ms ilone witlmut defendant's knowledge,
jh'I there was iin evidence of his having adopted
the aet;— Held, tint defendant was not liable,
j aitlthitthe plaintiff could not maintain replevin
I against him. Fi-rrh-r v. Cole. '5(^. B. 5()l.
.\e'iiint eliargiug the laiidlord with selling the
giMilstiir extortionate and illegal charges, cannot
besustaineil, fur the charge of extortion lies only
aeiiiist tlie hiilitF who received the fee. See I
Viet, e. hi, s. 4, niiH- V. S. U. C. e. 123, ss. 7, 8.
yirhJ.< V. .l/.«,;„-,/ ,t al., 1 Q. B. 199.
The rent due was S40I, and the value of the
j gmiils ihstrained .'?4()'.) : — Held, that the difference
ffasinsiUlioient tosujiportan action for excessive
' ilistress. ]Iitd-iiMin v. Lawmicv, 2() Q. B. 570.
A [ilea to an avowry was held not objectionable
for iluiilieity, for stating that the articles dis-
traiiieil ami replevied were beasts of the plough
j anil ail iiniilenient of husbandry, and also that
: they Were in actual use of the plaintiff ; because
the artieles were not absolutely privileged, but
oruysubmoilo, and to constitute an absolute pri-
vilege it was necessary further to have alleged
that there was a sufficiency of other goods on
the iiremises liable to be distrained ; but as that
couhl not be alleged in this case, the plaintiff was
entitled to relv on the actual user at the time of
distress, which exempted them as fully as if
there had been other goods liable to seizure.
Miliar V. MUkr, 17 C. I'. 22(i.
A plea which .alleged that there were other
articles on the premises besides the privileged
article : — Held, good, as affording a sutlicient
.answer to the seizure. Hi.
Per (iwynne, .1. — To divest a 1 uidlord of his
riglit to distrain, a strict le^al tender must be
shewn. Miithi'smi v. Kilhi, 24 ('. 1'. 5<.)tS.
III. Damaok Feas.vnt.
Tresjiass foi- taking, impounding, and selling
plaintiff's horses. Pica, that horse was damage
feasant. Heplicatiini, that by town meeting
regulations, fences should be live feet high, and
that defendant's fences not being that height,
but ruinous and out of reiiair, idiintilf's horses
escaiied out of his close into defendant's close
without the knowledge and consent of plaintiff:
— Held, good on general deiiiuricr. Irv.s v.
llltchi-od; Dra. 247.
On the (luestiou of the sulHciency of a fence
according to township regulations, where cattle
are distrained damage feasant, tlie award of
fence viewers is conclusive. Stidiiiun v. Wnth >i,
E. T. 4 Vict.
The plaintiff's horse escaped from his st.ible
.and got into the plaintifT's pasture Held, but «as
immediately pursued by M., the plaintiff's sou-
in-law, who saw it escape, and was leading it
out of defendant's tiedd, wdieii defendant seized
and detained it. The plaintiff re]ilevieil, and
defendant avowed as for distress d;inia,i,'e feas-
ant : — Held, that the horse, niider the circum-
stances, was not distraiiiable. Mcliitiiri- v.
I.orkrhhji' ft <tl., 23 Q.B. 204.
Plaintiff sued defendant for taking his cattle.
Plea, justifying as for distress damage feas.int on
defendant's land, iteplication, that the ])laintiff
demised to defendant the land mentioned in the
plea reserving a light of way along the west
side thereof, and the alleged trespass was the
use of such way. llejoinder— that the trespass
was beyond the right of way, .Surrejoinder —
that at the time of the lease there was a fence
along the (;ast side of the way to prevent horses,
itc, str.aying therefrom ; that defendant cove-
nanted by the lease to keep such fence in rep.air,
but removed it, whereby the plaintiff's horses
straj-ed from the way upon defendant's land.
Relmtter — that the lease contained covenants
allowing the plaintiff to enter on the land and
view the state of re])air, and that defendant would
repair according to notice ; that the plaintiff'
directed tiie defendant to remove the fence along
the e.ast side of the w.ay, and use the rails for
j other purposes, wdiicli defendant, with the jilain-
j tiff's assistance, and as the act of the plaintiff,
i .accordingly did ; and this is the removal referred
I to in the surrejoinder :— Held, that upon the
evidence, set out in the case, the jury were justi-
I tied in finding the rebutter proved by defendant,
I whether it was a good answer in law to the sur-
' rejoimler not being a (juestion for them. The
j jury were directed, that if the removal of the
fence was the plaintiff's act, he was bound, hav-
ing thus thrown open the way, so to use his right
j over it as not to injure the defendant's lancL
ll
1095
DISTPtlBUTlON OF ESTATE.
lOM
, ) i
1^ '■'*») ■.' ;
>Seinl)le, that the fjuestioii of iilaiiitiff's duty in
this resjiect was not really raisuil l>y tlio ])lL'ail-
ings, but that the charyu was correct. W'ixuu v.
I'irbir,/, -',-)(,). B.. 307.
V. Costs of Distress.
'I'hc form of order given in the schedule tn
C S. U. ('., c, iL'S, (rchjiciting the costs of dis-
tress for rents and penalties not exceeding 880,)
states the \inlawful charges to have been taken
from the complainant, "under a ilistress for (as
the case may he :") -Held, suflicieut to say "a
distress for rent," and that it was unnecessary to
state such rent to have ))een iinder .'jf.SO, in order
to shew jurisdiction, /'n/hid v, Stcirarl, 'lo I}.
B. 3-.>7.
:)TST1{IBUT1()N OF ESTATE
T. Pahiition (H- Est.vtf. — Sec P.^rtition.
IJ. AL(diiiiiN(; TO Tkstamkntary Deposi-
TFONS— .Sec Wn.L.
in. AiiMiNisriiArioN SriTS — Sec Adminis-
TliATION .SriT.
IV. PaI'vTIKS TO DiSTHIlSrTR — SVc KXKCITORS
AND Admin isTR.vroi'.s.
A testator placed his two sons in possession
of portions of his I'eal estate, intending to con-
vey or devise the same to tliem, l)ut during his
lifetime retained the full control of the pro-
perty ; notwithstanding this, the sons made
valuable impi-ovements upon tluMr respective
portions. L'jKin a bill tiled after the decease of
the father foi' a distribution of the estate, the
court refused to make to the sons any allowance
in respect of sueli improvements. Fustcr v.
l^iiifrsoii, 5 Chy. 1.3.").
A father placed one of his sons in possession
of certain wild laml, and announced his inten-
tion of giving it to liim Ity way of advancement.
He diecl without carrying out tliis intention ;
meanwhile the son had taken iiossession, and by
his imiirovements nearly doubled the value of
the land :-- Held, that the son was entitled to a
ehai'ge for his improvements, and to have the
laml allotted to him in the division of his father's
estate, ])rovided the present value of the land in
its unimiiroved state would not exceed his share
of the estate. Qua're, in such a case, whether
the son is not entitled to an absolute ilecree for
the land. IJic/m v. liiilni, 18 Chy. 407 ; /forci/
V. FvfijH,i<m, 18 Chy. 498.
A division of the reHi<luary personal estate of
a testator was made between his legatees, with
their C(mcurrence, appropriating to one <if them,
.18 part of her share, a mortgage for about t'lO, -
(X)(), assumeil to lie gooil, but which, fnmi defec-
tive title and other causes, was luit worth one-
fourth of that sum ; — Held, that in conserpience
of tlie mistake as to the character and value of
the mortgage, the ajipropriation was not binding
on such legatee. Clark)' v. Ilavkr. 11 Chy. .527.
An unecpial and unjust division of a residuary
estate was agreed to in IS.'jS, under circum-
stances, which are fully stated in the ri|ir,it. mid
which rendered the transaction iiivaijil. i|,,.
division was acted on to a certain extent l,v
both jiarties, tliough conveyances had nut I,,,,,',,
executed. A bill being tiled in I Sill, to .set asiilt
the division, and the delay sullicientlyaiv(.iinu.(l
for, a decree was made as jM-ayed, 'and it ww
referred to the master to make a new (livi<j,,ii
not disturliing the old divisiim more tliaiisliniil.i
be necessary. Ih.
A testator devised to his son a certain ii„miii1
lot ; the residue of his estate, after certain (■tlur
s]iecilic devises, lie directed to be liivi.lid l«.
tweeu his two brotliersand sistei-, aniuiigstMiiniii
after tlie death of the testator, tlic pi'Din-rtv \\m
divide<l. In this division, liy mistake, tlie Lit
devised to his son was incluiled, and wasall.ittrd
to (uie of the residuary devisees as [lai't nf \\\f
share, wlio devised the same to liis suns, ami
who, on discovering the mistake wliieii iia,l l„.i.|,
oonnnitted a]iplied to those intensteil in the
rcsiiluary estate tfi have the mistake n'ctilied. it
tJien ajiiieai-ed that some of the other residii;irv
devisees had sold portions of tiie shares allntted
to them, by reason of wliicli a re ilivisimi nt the
estate was impossible, and a iiill was thereiipim
filed jiraying for comjiensation f<ii- the loss si<-
taiiied by reason of tlie imst.ike in tlms allot-
ting tlie devised lot. The court, under the eir-
cumstances, ordered a valuation to he iniidedt
the residuary estate, at its present value, one-
third of which, with interest from the date the
first division was made, to becontrilnited ratiiMy
by the other residuary devisees, or their repR'
sentatives, or, if 4lesired by either nf the |i:u-
ties, with an account of rents and [irutits re
ceived. Sttmoii v. Mmm, 10 Chy. !l-l.
A. who w.as <lomi iled in Scotland, died there
intestate, leaving souk; personal iirii|H;rty. Three
of his next of kin, a. brother .-uid two sisters.
concurred in a]ipointing an agent in Scdthmd t"
wind up tlie estate and tr.uismit and aeeiuintti
them therefor ; the agent did so, ami ti'iinsinit-
ted to the brother some money and iiei-seiial
chattels as all that I'e'mained after ii,-iyiiiL' the
intestate's debts and funeral expenses. The
brother [laid the sisters theirshares of the iiieiuy,
but kept all the chattels. In a suit liy the si?-
ters for a division of these, an olije-c-timi t.iheii
to the alisence of any jiersoiial repre.sent,itive e;
tin; deceased in this country, was iiver-rhled.
SiillurliuKl \. HfiKx, 13 Chy. ."i07.
One of several heirs of an intestate hein^'lim:';
tic, an act was procni'cd ar.thori/iiij.' tliesideef
the intestate's lands, and the investment el tlw
lunatic's share, for the benelit of the liiiiatrC
"and his representatives." The liniatie alter-
wards died, and it was Meld, that this share, i"r
the purposes of distribution, I'etained tin- ehar-
acter of realty, and was to be ilivided lietweeii
his real representatives and not his next nf kin.
Ctiwplirltv. Cdiii/ihc//, 19 Chy. L'.'il.
By the statute -."J ^'ict. c. 2$, s. •.'«, the a.ssets
of a deceased debtor, in case of dclieieiiov. are
to be distributed amongst his several ereilit"r5
pari passu, without any priority uvereaeh ether;
and where the executrix in sneli aeaseallewei
judgment to be i-ecovered by two eivditers aii'l
execution to be issued, under wliiedi thev «er.
paid nearly in full, when by applyinj; to the eourt
HI that action the proper distrilmtioii of the estate
would have been ordereil, the court cliargeil her,
li. 1!
IV
I'l
\-
Ai
VI.
E.\
1.
Vll, Kx
vm. Tra
I.X, .hi
1(
DIVISION COURT.
1098
in favdtir of tlie otlier creditors of the estate,
with the excess lieyoiid tlie ratable proportion of
tlie cliiiu (hte tlie execution creditors ; giving
an iirder over in fav(jiir of the executrix against
those creilitors, wlio were ordered to pay to the
other iiartii.'s to the suit all the costs, other than
those of proving their chiini at the amount
allowed bv the coiirt, and to this extent they
\^■^.^^ helil entitled to recover their costs. Tdi/lm-
V, lin„li,; 21 Chy. 607.
DISTRICT COURT.
See CocsTV CofRT.
DISTRINCAS.
Ouiere, if a venire and distringas should not
issue t'or',1 special jury. Morreij v. Min/iKin/, 4
I). S. 323.
Tills writ is not the proper process to com-
mtiice A suit against a corporation. Cuopir v.
Tlirl'iimuln Com 11(111 ij, Dra. 18!).
Ill lU'oeeeding against a corporation to enforce
olitiUenee to a decree or order, it is not necessary
til sue out a writ of distringas ; the proper mode
of nroceeiliiig is hy orders nisi and alisolute for
;i seiiuestratToM. 'Spragge, V. C, dulntante.
AiiHfmij dfnii-al V. Brinilj'ui-d, 1 Chy. Chamb.
20.- -(.■hy.
DITCH.
,Sh' WaTRU ANT) W.\TKR CoiTJSES.
DIVISION COURTS.
I. .UllISHK TIOX.
1. Wliifi' Arlinii.f iitii--<t he hroui/hf and
I'l-iiridl'iiKj't ciiri'ieil (III, 1008.
•->. 'mictn Lit ml, 1009.
S. Oh Ari-oinih, 1000.
4. SiiUlt'iiKj Ciiii.-ii.-i (if Aethiii, 1101.
5. (Hhi'i- ('(UeH, 1101.
II. ilcMovAi, OK C.\u.sF,s— .5<'e Certior.\ki.
ill. ISTEIil'LK.MlKR, 1102.
iV. 1'racTICE ANU I'ROt'EDl'KE, 1104.
V. Am,ic.\Trox FOR County Court CoiSTs —
See Co.STS.
VI. ExEcrTioxs.
1. UriicmHij, HOC),
i AUneh incuts, 1109.
(a) ildlic'uimhj IkkkIiiiI — See M ALR'IOUS
Ahhkst, Prosecution and Other
riUlCRKDlNOS.
^11. Kx.vMiN.vriox OK JuDCiMENT Dehtorh —
See BanKHUPTCV AND INSOLVENCY.
^111. Tr.\.ns(ript of Judgment, 1110.
IX. JlUOE.
1. Adlom ttijainsf, IIll.
2. Ci'!iiiiii(il lii''(iniitithin (vin'iii^t — See
Chi.minai. Inkoh.mation.
.3. MdiKlaiiiiix ti) — Si'c Manda.mus.
4. J'nMhitioll to— See pROIUllITIoN.
\. Cl.EUK AND ins SlHETlES.
1. LiilhUifi/ (if, (111(1 Aefldii.i (i(/(tiihsl, 1112.
XI. Bailiff and his Sukkties.
1. Aetioii.^ Iiii (iitd (Kjdiiifi, 1118.
2. Xol ire (if A el lull t(j Bdilijl'—See Acnos
AND SlTT.
XII. MiscEi.i.ANKois Casks, 1117.
I. Jurisdiction.
id'iiKj!*
1. Where A ctiun-i iinmf he liroiKjlit diid /'racci
earricd an.
The jurisdiction of the Division Court, under
13 & 14 Vict. c. .">3, ilid not extend to jjcrsons
residing out of the county. DidiiuKje v. Tlie
Jitdije (if Leedx (Old (Ireiirille, \'li}. H. 32.
Held, atlirming Kongard v. McWhirter, 12 Q.
; B. 143, that under Hi Vict. c. 177, s. 0, a suitor
! desiring to remove the cause to another ilivision,
I must apply to tlie judge who ordinarily would
have cognizance of the cause, not to the judge
: of the division to whicii he desires to transfer it.
But the only issue taken lieing as to whicli divi-
sion was most convenient to try in, upon that
point the decision of tiie judge who had granted
the order was held to be decisive. Me Whirter
V. BdiKjdi-d, 14 (). 15. 84.
On an application for a prohiliition on the
ground that the cause of action did not arise
within the jurisdiction of the judge of the
county of Lambton, it appeared that the defen-
dant resided at (!., where a bargain was made
for the delivery of goods at W., and the bar-
gain was fultilled by such clelivery and accep-
tance : — Held, th.it the cause of action arose
partly at (I. and i^artly at \V., and the judge
of the county where \V. was situate had no
authority in respect of the cause of action.
Kemi) V." Oii-ci, 14 C. r. 432.
Defendants, residing at Toroiit(. agreed to sell
to the plaintitl's at Kingston certa'n barrels of
oil. Upon the oil being delivered i.t i\iiigston,
it was found to run short, and an action was
brought for the shortage in tlie Division Court
there : -Held, that it should have been brought
at Toronto, where defenilants resided. ('(irKkij
V. rU-di ct (ll., 4 V. II. 2.-),"). — C. L. L'hainb.—
Morrison.
AVhere defendants, residing at (iodericli, made
a contract at Brantford with one ^V. to <leliver
to him certain goods at the railway station at
(iodericli :— Hehl, that an action in the Divison
Court for the bad ipiality rif the goods delivered
must be brought at (ioderich, as the whole cause
of action did not arise at Brantford. IWdt v.
Vdii Eren/, 23 Q. B. 19(1.
Section 7, sub-s. 1 of the Ontario Division
Court Act, 32 Vict. c. 23, provides that tlie gar-
nishee summons sliall issue, "out of the Division
Court of the division in which the garnishee
lives or carries on business" : — Held, in the case
of a foreign railway doing business within this
province, to mean that iiroceeilings may be taken
in the division in which the principal oilices for
v
1099
DIVISION COURTS.
lliiii
|!
the])ri)viiii'i; are located. By 29 & 30 Vict. c.
02, the <i. 'I'. Kaihv.'iy (Jii., whoso head office is
at Mdiitroiil, lea.sed the Buffalo and Lake Huron
It. W., whose jirincipal odices were at Brant-
ford;- Held, that garnishee i)roceeilini;s against
the eoinpany, were iimiierly taken at IJrantt'ord.
Fair V. ,Jiiiiii-i, () li. J. X. S. .'!20. — C. ('. — Jones,
Held, that a railway eoni))any does not "live
and carry on business," witliin the meaning of
32 Vict. c. 23, s. 7, ()., at any other place thau
its head oHice, at which its Inisiness is managed.
AVlierc the garnishees had their principal station
at -Montreal, and a local station at Jierlin, at
whicli they took ])asscngers and received goods,
and the plaintiff issued a garnishee summons
against the company out of the Division Court at
Berlin, under that section, on the ground that
they lived and carried on business there: — Held,
that tlie judge of said Hi^ision t'ourt had no juris-
diction, and a proliihition was ordered. A/nrnti
V. JIc(;i//!<ial, 23 (J. P. 171.
Statutes regulating the practice and procedure
of a court a|)i)ly only to matters within its juris-
diction, and cannot Ijc called in aid to give juris-
diction where it is in (jucstion. //».
" ( 'auso of action," within the Division Court
Act, 0. 8. U. C. c. 1!), s. 71, means tlie "whole
cause of action :" and therefore whore the plain-
tiffs sued defendant in the Division Court at
Ingerscdl, in tlie county of Oxford, on a note
payable there, lint made at Strath roy, in tlie
county of Middlesex, wliere defendant resided :
— Held, that as the whole cause of action did
not arise at Ingersoll, the action would not lie
there, but should have been brought at Strath-
roy, where defendant resided ; an<l tliat a pro-
hibition was properly ordered. Vaughan r.
Woldon, L. R. 10 C. P. 47, and the cases on
the C. L. P. Act, s. 44, distinguished, yoxon
etal. V. IMiiK^s tt uL, 24 (J. P. 541.
2. Tillr l<> Lan'L
Prima facie proof of a title to land being given,
and that such title must come in (piestion, and no
cause Ijeing shewn to the contrary, a prohibition
was granted. M<u-ar(i v. M(ii''.ili, 11 C. P. 74.
A., intending to make a lino fence between
his land and that of B., by mistake made tlie
fence on B. 's land. Afterwards, a correct lino
having been run, it was agreed that A. and B.
should each make a portion of the fence on the
correct line. B., in making his .share, used the
rails of the old fence made by A. A. sued B.
in the Division Court for the price of the rails so
used, and the judge having decided in his favour,
B. applied for a prohibition ; but — Held, that
the judge had jurisdiction. Re. lirmhliaw '"
Diiffij, 4 P. K. 50.~C. L. Chamb. --Hagarty.
The judge of a Division Court may entertain
an interpleader application to try the proj)erty
in goods, even though the enquiry may involve
the title to land. The judge him.iclf must de-
cide such application without the aid of a jury.
Munsie v. McK'mley, 15 C. P. 50.
3. On Accounts.
The plaintiff sued defendant, a married wo-
man, on a demand exceeding .$200, but aban-
doned the excess above .?99.75. Defendant
claimed a set off exceeding §400, but ('(lll-li^til|„
of various unconnoeted items : — Ilelil, thit n-,
ground was sliewn for a prohibition to tin. |)]vi!
sion ( 'ourt : that the suit was clearly within tli-
jurisdiction; and that the defence nf (■in|.|.(||j,'
should have been sot up in the cunrt lui u
l{<-<i<l v. ]V,,lii<; 20 Q. B. 4r)(;.
Plaintiff stated his claim to be for goods i,„u
£2(i 14s., and four years' interest tlieroim, ;,|,/|
for two promissory notes, £1.') oacii, aiidintL.vi.^t
in all, £73, and gave credit for cash |i;iviiiiiik
of £4(>, abandoning tlie excess of tlic ijaLuiiJ
above i'2't. At the trial, ilefcndant (ilijuitid f,
the jurisdiction, and judgment li:iviii^f h^.^.,!
given against him, he afterwards olitulm..,! ;i
new trial on atlidavit of merit ;. in "raiitiiii; it
the judge allowed the ])l:iinii|f tii^amciul his
claim, and tlie account then rendi-ruil rhiiiii^,]
only the balance due on the notes, in all, i'4ii
gave credit for £23, ai d abandoiiuil all Init i'L'."i
of the l>alance : — Hold, that as aniciMlcl tiii.
claim was clearly witliin the jurisilirtimi, aii.l
that the amondment being iin)ir()|n.'r wuiihl imni
no ground for prohibition. (,)u;i'i'c, win, tlii-r tin-
first account shewed a claim beyond tliu juris-
diction, as witliout the notjs, which \wn: liinii.
dated demands, the account would imt l-xii-kI
£.")0. In re UiijijinholhiDn v. Moon-, 21 i}. H. 3'J(i,
An action on an unsettled account exi-i-eiiiii"
!i?200, reduced by payment to .■^100 :~Ht-ld. nut
to bo within the jurisdiction; Minju /'. Mel alji-,
4 P. K. 171, considered. WhikjIi v. Cwnnui I
L. J. N. S. 228.— C. C.—Logie.'
The plaintiff in a Division tJourt uiay reoirver
i?100, being the balance of an unsettled :u'L-iiiiiit
not oxcooding !:<200, but when the wlmle aa-miiit
oxeoods that sum there is no jurisdictinn. An
unsettled account means an account the aiiiiniiit
of which has not boon ailjustod, detcniiiiinl, irr
admitted by some act of the parties. Thc[iluiii-
tiff here sued for .?84, being the balance iliiu fur
rent of promises occupied liy defendant as his
tenant for several years, ;it .^IfiO a year, after
deducting the payments made from tiiin- tn
time : — Held, not within the jurisdiction. In
ir llitll V. Cnrlalii, 28 (.). \'>. ,"),'{3 ; overmliiy
Mlron V. McCaltc, 4 P. It. 171.
The pLiintilf claimed §94.88, aniiexini; to his
summons particulars of claim, shewing; an .lo-
count for goods for .§384.23, reduced by crc-ilits
to the sum sued fin- ; but nothing had Ix'cudime
by the parties to li(jaidate the account or a.^i't-r-
tain the balance, oxcejit a small amount admittcil
to have boon p;iid, and a credit of .§,'il{ irivt'ii for
some returned barrels, but which still left an
unsettled balance of upwanls of .-^301); Held, nut
within the jurisdiction, and a j)roliiliitii]invas
ordered. //( rv the Ju<l<ii- of the Cninilij Citiirl "J
tht' United Counti<'--< of Xitiihiiiiihirlitii(l ninl Vur-
ham, 19 C. P. 299.
Plaintiff, having been employed by defcmlniits
to purchase wool for them on connidssiiin, snnl
them in the Division Court for this coinmistiim,
and for §10 paid to an assistant. It a|i|icart'd
that defendants had furni.shed the plaiiitilf with
§1,100, and that the plaintiff had expended -flU
beyond this sum in the purchase of the wnul, hut
no question was made at the trial as to the due
expenditure of the .§1,100, the only (iiiej^ien
being whether plaintiff was entitled to:iiiy com-
mission at all, and no claim was made for the
IKKt
Hit rtMwi-tlll;
lll'lll. tlllt ll„
n til till; lllvi.
rly witliiii tilt
u nf ciivcvtiir';
cult it lll'llPtt
or gciiids siiU,
; tlicrcHii. :ii|,l
1, ami intun-st,
:isli inyiniiitH
I tlif lialuiice
lilt iilii'jctfil tn
liaviiii; littu
lis iilit;iiii(.-(l a
III griuitiiiL' it,
to allRMlil \m
ilrruil i.'laimuil
•!(, ill all, ail,
oil all liiit Cii
aiiifiiileil tlif
risilii.'tinii. ;inil
per wuuM iiinu
;-c, wlu'thur the
•oiiil the juris-
lirli wiTu liijui-
ulil not ■.■xi'ffil
(V, •JKJ.r,. 3'^i).
•ouiit I'Xfi'i.'iliii^
()(» : — Hi'1.1, iiut
in 111 /'. Mcl.'iiljf,
7( V. (Jotnniii, 4
ui't may I'convi-r
isottli'il aL'i:iimit
(' wliolo aoc'iiimt
[ii'isilii.'tiiiu. All
lint the aiiiiiiiiit
L'tuniiiniMl, IIP
'riicplain-
ilaiKT' iluu fur
fiiilaiit as Ills
(;o a yoar, aftir
friiiii tiiiii' t(i
isilictiuii. In
VA ; iiViTi'iiliiio'
1101
DIVISION COURTS.
1102
iiiiK'xiiiL;tiihis
UrwiiiL.' an no-
icoil liy ciT'lits
hail liffii il""^'
jfouut 111' asi'i'i'-
iiiiiunt ailiiiitU'il
it' SSI) irivoii ii'i
I'll still li'tt M
;WI): llil'l.ii"t
jiriihiliitiiiuwM
< 'iiiiiihj Cmirt "J
■rlitiiil I""' jf''"'
ly ilctVinlniits
iimiiissinii. siK'l
his oiiniiiii^'^i""'
t. It apiiciwl
If ]ilaiiitill' witli
.1 oxiiL'iuU'il S'i
iif tliewiiul, liiit
al as to tlio line
„ily (iueJ*ii'U
,le(l to any com-
uiaile for the
viCi iiraiiv iiortioii of it, tlu; jilaiiitill "s iloniaiul
l' ■ ' , ;.(iiitiiioil to the ooiiiiiiisMioii itlaiiiiuil on the
1 uaiititv of wool imrchiisuil, ami not on the
llricf imi'l : -Hold, not an action for the lial-
iHicc of an unsettled aecimnt exeeeiling ?<'J()0,
Ij halaiK'c of the unsettled aeeount between
tlu' parties lieiiig !?•'<'•> vvliieli was not in (|iiestion
in this suit ; and a |ii-ohil>ition was therefore re-
fuseil M''liii'- V. J<'"l)!ii.i <■/ til., -20 C. V. 13.").
4. SpUttiiKj CiniM.i iif Arlinii.
Where lilaintitT sued defendants on an alleged
nruinisu to return ayoke ot oxei
ui as good I'on-
aitii.ii as when hired, alU^ging as a Iireaeli that
tlu-v were not so returned, itc, hut wert^ injured,
tc" anil it aiipeared on the trial that defendants
h.iil he^ii hefore sued hy the i>Iaiiitill' for the hire
of the same oxen on the same contract for hiring,
whieh suit resulted in judgment for the plaiii-
titf; -Hehl. a splitting of the plaintitl"s cause of
action, within the meaning of the Division t'oiirts
Act, .awl juilginent was given for defendants.
li.;/i/v, l.!iuii.<ft (il., 7 L. J. 7-4. —C.C. — Hughes.
I'laintitf rendered an account to defendant,
ciiiiinwiicing with the .amount nf .in account
ixnikreil mi the IWtli of .liiiie, 18(iL', and eon-
tiimeil to the 14th of October, when the balance,
alter aUowiiig a credit of !?4.'2.'), was .slO(;.4;{. In
February, IS(i3, he sued in the Division < 'ourt,
tile statonieiit of claim ciuninencing with the
24th III April, and ending on the lOtli of Octo-
Wr, ISiH, amuunting to S',)!).3l. He was allowed
to rccuver without abandoning the excess, not-
witlistaniliiii,' the production of the larger ac-
count renilereil ; and in May he sued for the
items ineluileil in that acciuint, but not in the
former aetioii, .uid was also allowed to recover.
DcMiilant then aiiplied for a prohibition. Seni-
ble, that the application slionhl have been inaac
in the lirst suit, but the point was not settled,
as, alter rule nisi granted, the plaiiititF consented
lotiiewrit going without costs. Jn /v- d'ruct' v.
ir,iWi,,11'. It. iltl!.— Q. B.
Claims, such a.s promissory notes, which woulil
each eimstitute a distinct cause of acti'ui if sued
nfoii ilirectly, come within the rule as to split-
ting! "' eauses of action when sued upon indi-
rectly, , as in an action for money paiii by an
eniliirser tn the use of the maker. (fWxvt v.
(»rf,4L..I. X. 8. 229.— C. C— Lode.
Weill, 111! the facts ot this case stated, supra,
I tliat there was no splitting, the plaintifl" having
I tn" Separate' eauses of action, one for work
I Mil liliiiur, aiiil the other for a balance duo for
j nii'iiey paiil liy him for goods in excess of tlie
j imiiuiit furnished to him. Mcliai' v. Uohins et
ln'.,20C. r. 135.
5. Other Cmen.
A township collector might sue for an assess-
I Bent I'lir eonmimi schools, under 4 & 5 Vict. c.
IS, s. 10, ill A iJivisicn Court. MrOrcaur v.
1'^f'f, 1 Q, B. 15.
Courts nf Requests can entertain a suit for
I the klauce remaining due upon a ■written under-
I '"''wg to pay a larger sum. Lonriworth v. McKa ii,
60.S, 14'J.
. ^ec. •?: of 13 k \\ Vict. c. 53, does not restrict
jmlauts from suing in the Division Courts for
anything but wages, but enables tlieiii to recover
for their own labour, contrary to the |iiiiu'iples
of the coniinon law. FirrU v. Fn.r, 11 i). I',. (ii2.
The jurisdiction of Division Courts is restric-
ted to SM) in actions brought purely and siiiiidy
to recover unci'rt.iin damages dciu'iiding on mat-
ters of opinion whether the cause of action
arose out of tort or breach of agreement. 11;/-
liuiil V. Warnii, (i L. .1. I Id. ('. ('. -Alacken/ie.
Division Courts have jurisdiction in .actions
of detinue. When,', thei-cfure, the plainliU'sncd
in a County Cmirt, and the value of the article
detained w.is found to be i<\, and no certilicate
giMiited for full costs, the |daintitl' was restricted
to Division (Niurt cost-i only, and set-oil' of costs
aUowcd. l.iini.-< V. ICIIh/i, !» L. .1. 147. --('. C.
— Robinson.
Held, tint under ;i2 Viet. c. 2;!. ()., a judgi'of
a Division ('ourt has power in garnishment pro-
ceedings, when the justice of the case reipiires
it, to gi'ant .-i new trial after the lajiseof fourteen
days, notwithstanding L'. S. U. C. c. I!), s. 107.
Mi-Li'iii, <■/ III. v. MrLcinl, 3 r. It. 4(i7. -C. L.
Chamb. — Hagarty.
Held, that an action for breach of a warranty
of a horse where the damages vecovercd were
over .'*40 and under SIOO. was within the juris-
diction of the Division Court. Marri-; v. I'laiif-
roii, 12 C. V. 422.
Held, that a party not raising the ipiestimi of
jurisdiction on the lirst trial of a case in the 1 )i vi-
sion ('ourt, is not prohibited from raising the
iiucstion upon the second trial, a new tri.d having
been granted. /Jihi/hkiii v. Aiir'n'dlluriil (iml
Arts A.fMorianiiii, (i 1'. K. I7(). <'. L. Chamb.^
(I.'ilt.
Held, that Division Courts are, by virtue of
32 Vict. e. 23, s. 1, O., courts of record. (.'<n'-
.^,(11/ (p t. V. Tiii/lor, 10 L. J. N. S. 320. -C. 0.
—Elliot.
Held, also, that a penal action for not return-
ing a conviction is founded on tort, and fur that
reason cannot be brought in a I •ivisimi ( 'ourt. Jh.
See Hrnhiiiii v. Snuui rl al., 18 Q. 11 -182, p.
1112.
III. lNTEiii'i.i:.\iir.n.
A. had claimed certain steers .seized unilcr a
Division Court attachment against one F. The
bailiff who seized obtained a suniinons to deter-
mine such claim, which was heard on the 2+th
of .Jiiue, 18.53; and on the 8tli of .Inly, 1853, an
order was made by the judge of the Division
Court deciding against A.'s claim. A. then
lirought trespass ag.iinst the liailiiV : -Held, th.it
the regularity of the proceedings nn the inter-
pleader suninions couhl not be ciupiired into, and
that all proceedings in this action since the
issuing of such summons must be stayed. Fiii-
lai/x(»i V. Hinriiril, 1 I'. I!. 224. -C. L. Chamb.
— Draper.
An interpleader issue in a Di\-ision Court was
held not to be within sec. .51 of the Division Courts
Act, and so not removaljle by certiorari. Ruf.tcli v.
WilliamH, 8 L. .1. 277.— C. 1.. (Jhamb.— Ilichards.
The plaintiflf in November, 185(), sued defen-
dant, a bailiff of a Division Court, in trespass for
seizing his goods. Defendant thereupon, in Feb-
.!i '^i'
IIO.T
DIVISION COURTS.
I Kit
ruaiy, liS.'iT. dlitaiiitil a huiiiiihiii« in tliiH cdiiit,
Ciilliiig (111 tliL' iiliiiiitiir to k\ww cause « liy tlu'
ac'tiiiii '<lio;ilil not liu stayuil, and wliy tlie juilgo
isiMuing tlu' siM',nions slioulil not a'ljnilicati'
upon tlie iplaintill's tlaini. Wliun tliis suni-
lnon« was o)>ta'Mi!(l, an inturjileailui' oidiT was
jiencling in tlk' |li\iMion Couit, which the juilgi;
of that ( 'ourt lUturniiiicil in Mai'h, )iy decidinij
that tliu iilaintid was cntitli'd to I'lu ih'occlmU: of
tlie goods sohl, and fl5 as danlag(;^' for laking
tlieni, whii li thu execution jihiintitl' then jiaid
into tile division Court. In thu meantime,
liowever, tile siiniinons in this court iiad ))een
discliarged ; anil afterwards the plaintill jiro-
ceeiled \Nith tiiis action by tiling a declaration in
August, to w hich the defendant pleaded ; and a
trial took jdaee, which resulted in a verdict for
the jilaintitr. The defendant then ajijilied to
rescind the onlcr discharging the sunimons in
this court, and to stay iiroceedings ; — Held, that
the summons sliouhl not have ocen discliarged
altogether, hut jiroceedings should have been
stayed, as directed by the l(i Vict. c. 177, s. 7 ;
aii(l that the defendant was still entitled to a
stay of proceedings, under the statute, notwith-
staniling his laches ; but on account of his delay
the rule was made alis(dute witliout costs. Un-
der the I.S & 14 Vict. c. M, s. 102, and Kf ^■iet.
e. 177, s. 7, anieiiding it, the judge of the Divi-
sion ( 'ourt must a<ljudicate uiion the claim to
goods seized ; but the apiilieation to stay iiro-
ceuilings in any action lirought for the seizure,
must be made to the court, or a judge of the
court, in which such action is pending. ]l'(ii/i-
inijton V. \y<hh, 1 ()(,>. 11 ■2:i-2.
Certain goods, being seized under an attach-
ment from the Itivision Court, were placed by
the baiiitl' in custody of tlie clerk, from whom
they were replevied by tiie plaintitl'. A sunnnons
then issued from the Division Court, calling
before the judge there the attaching creditors
and the plaintiff as claimant of the goods : —
Held, that under the Hi ^'ict. c. 177, the pro-
ceedings in tlie replevin suit in this court must,
be stayed : — Held, also, tliat if the plaintitl' had
been allowed to proceed, he must have faileil,
for neither trespass nor trover would lie against
the clerk, anil therefore replevin could not be
maiiitaiued. (,>u;ere, as to the remedy which
the defendant, tlu; clerk of the Division Court,
or the attaching creditors, would have in case
the ]ilaintif}' in rejilevin should be held by the
judge to have no claim. Curaii v. Urnlntm, 18
Q. B. :^l^>.
Held, following Jones /•. Williams, 4 H. & N.
70(i, that under the Division Courts Act, C. S.
U. C. e. lit, 8. 17"), this court has no power to
stay proceedings in an action brought after the
adjudication by the judge in the Division Court.
tiliaiiti'hui-H V. TntKkf, 'M i}. 15. 543.
The decision of the judge of the Division
Court on an interpleader, is final, under C. ,S. U.
C. c. 10, c. 173. Kcnii,- v. .SIcdiiKtii, 10 C. P. 43n.
In trespass against a Division Court bailifl"
•and one B., for entering plaintiflf's close and
taking goods, defendants pleaded that one H
having recovered judgment and execution in a
Division Court against ()., the plaintifl's mother,
find these goods having been seized there, the
plaintitl' claimed them, whereupon, on an inter-
pleader, the judge adjudged that the goods were
the property of said execution cretlitor, and
liable to said execution. The inteiplcjidi..
nioiis was produced, with a iiiiiiiitc cii,l„rst*j'|'
the judge, adjuilging tliat the giHuis vit,. ••/
tli«
projierty ot tlie execution ''icilitor, " aii,| i,ni,
ing the costs to be ]iaid by thccl;iilii;uit in liij,''"
day.s. The plaiiititl's witnesscx swoic thin tl'
judge did not ilccide the matter, Imt put (,|| .i"
hearing on payment of costs bv tlit- |,l',j,„'j
within tiftcen days; but. Held, that thf luinn,
of adjudication and order mciv ciiiiclnsiv,' /
Held, also, that the minute, tlioiigli iiii„r'i|,'||
was in substance a disinissid of tlie hlaintilj ,
claim, and a protection to the baiiill. Iii'i,.!,,!,,,!
B. having declared that he owned tlic ijiljt nl
that the execution was issued at his instaii '
and haying appeared fiu- tlie excciition ,.r,',lit!|
on the interpleader suniiiioiis : 11,1,1 .^niii,,,
evidence to go to the jury o| Ins bcin.- a iiiiut
trespasser. O/l/i/iunt v. Lr.ilii ii,il,^ ^i (r |', 'jii^
On an interpleader in the iMvisioii ('„urt, the
judge may determine the claimant's ni/littd.iii
equitable interest. Mr/nln.-i/i \, \/r/iii,.,i, w
Chy. ."iS.
(ioods seized under a Division Cduit cxwi-
tion were claimed by the plaintitl', ami th,
bailitJ'sohl them exjiressly subjiTt to tiu: iv<iilt
of an interpleader, for wliicii lie iiitemltil t.i
ajiijly. Nothing was paid, and L'lcy wtiu t(. re-
main in his custody until the dicisioii. Alter.
wards, on an interpleader, the jii.lge ilcti'iiiiiinil
that the goods l)eh)iiged to the i Xcciitic)ii(k.|,t„r
and the iilaintifl' .sued the baililf in this aitiml
for selling the property :- Hold, that Ik- imiM
not recover, for the iiiterplcadc'r pmccrdiiigj
were not invalid, as liavi,ig t >kcii placr atUT
sale, the sale uiion such c( inlitions lii'lni; iiniln-
tual ; and the good,s, M'crclon., -till iviiiiinn,!
subject t<i the execution, llnnu'i- \. r.i«M„ •'■),
Q. ii. 47!t.
See .]fiiii-si( V. MrK'i iliii, {,") ( '. p. ,",0^ i, |||i|i|.
Mi-Arthur v. Cno/, I!' 1,1.' 1',. 47ti, p. ill,",'
W . Tn.vcTicK .\M) I'lioi KuriiK.
(,)ua're, can a Division Court jiiil,L:e sit asi.ka |
judgment and execution 011 wiiicii tlic iiidiity
has been regularly luade, on an aiipliujitinh to
him for a new trial, where the papers v. civ untj
regularly tiled with the clerk of the ciiiut'; .l/'-
Kiir.ic V. /\((iif, .") \j. .1. i'l'."). --( '. L. ('iuiiiil).-l
Bobinson.
It is an established rule of I'jiglisli law that 1
negligence or lireach of duty eaiiiint he sit U|i,i3 1
a defence in an action for the recovery nf fivi^lit j
where the defendant has derived a partial luiiilitj
under the contract but ileicinlant iiuist lniiy a I
cross action for damages ; and sucli rule iiiiitt l«i j
taken to prevail in Division Courts, ii(it\iitli-
standing the ])rovisions of tiic liivisimi (, '.mrfsj
Act enabling the judge to decide acciu'diiu'toj
eijuity and good conscience. Ilnurn v. .l/mW, j
7 L. J. I'llS. -D. C.^Duggan.
Held, that the Imperi;'' statute 4.3 Eliz. e
as to remov.d of causes by certiorari, aiiiilitsfoi
cases in Division t'ourts, where a jury is eiii-f
pannelled by the judge, and a verdict leinkmll
before delivery of the writ of ccrtinniii to thej
judge. Bhrk v. II'm/<//, 8 L. ,1. i".-C.h.f
Chand). — Biehards.
Semble, the act in spirit ajiplics tn eases wlitr^
the plaintiff's witnesses iiru sw oni, altliiMii;li lift'
jury is called. lb.
itl- ClKilirH'illiV
'.Ills ven^ ■•ti,;,
;iir," iiihl iirilir.
iiii:viit in tiiu,.|,
swiii-u thiit ti,t
Imt imti.tltlit
i.v till' iilniiitif
Lli;it tliu imiiiitj
J I'lmcliisivi: : .
iiini;li iiil'iirii;,il
l' Uiu li|;iiiititl j
lilill. hi'lciKliun
jil the ili-lit. u;i,l
:it liis iii.itiiiim,
;iMiitiiiii creilitiit
1 1 (111, SUllifiullt
llis licill;^ ;l jiiint
il., 2H^I',,;illS.
.-isiiiii Cimrt, the
lint's riL'lit t" an
v. Mnnt',4, Is
linn Cnlirt I'M'iU-
laiiitilV, anil the
ject til tlu' I'fsuh
he ilitLMiiluil t"
Ihuy wi'i'f ti' K-
ilifi.siiiii. Al'trt- j
JM.lgi.' lU'ti'i'iniitol
I xn'iitiiiinklitiir,
ilill in tills iictimil
111, tlmt Ik- niuUl
■lulor |ii'iii.'i.'i'iliiigs|
I ikfU iiliux' attrtl
ions lifing iiR'llw
n; still ivinaiikil I
/■/»!/• V. ('ii«'ii;i, ',13
lUi'"'
DIVISION COUKTiS.
1100
.-lO. II
. 111.1
ll)!l!»;
r.iiiUb:.
luil.U'^-' sut iisiik'.l I
irll tlk' lllnllty [
m niiiiliciitimi to]
|l!ipL'l'S V.l.i'C llllt j
thu cMiiirt'.' )!'■]
(.'. !,. rliuiiili.-
'.M^lisli law tint]
Hint iiL' sut Ujiasj
iiivory III i'lviL'litj
i a |iai'tialliiin'lit j
lilt must liiiii:: jj
null I'uk- iiiUft k ]
Cmirts, niitwith-j
jivisiiiiilViirtsl
fiili' iicfiirilinjitoi
i-(iint V. .V"'i''', I
sliiiulil nut lif iilliiwfil
tiito 43 Eliz. !■
itiiirai-i, aiiiilit^tol
wiv. a jiiiy i» en'-l
, \-onlict roiulimlj
(.■(.'i-tiorari tu thel
,. .1 -JTT.-l' H
lios to eases whurei
Horn, altkoughiio
Seiiikk, tliataiv.'dvury Hliiii
' Divisimi < 'iiiii'l' aj,'HiiiMtau ondiirsvr cit ii iiotf,
without liiovii'i,' liivi^'^^''t"»^'"t (ir iii.tioe. Si,l,hi//
Y iiii'.iiiii, 17 Q' '•• •'"■
1 inattiiiii nil ii niiti' payiililc to |>laiiititr <ir
■,iiiii''lit ill tlio nanii^ of tlio jilaintill',
•ivisiiinCiiiii'ts Act, ('. S. r. ('. c. Ill,
iiison wlio liail iilitained t'xui'ution
tliat fiiiiit, ilclV'iiilantH ])lfiiikil
that the iiliiiiititl' was not tho ■ ('hanih
1(1
if iiiiu T., til
the iiliiiiitiir iir ilrlrnikiiit in any catiso lift'di'o
liiin in that onurt. altluiugh thu lU'iiiainl cxii'i'il
Uulil, that unilui- ',i'2 Vict. c. '2',i, «>. , ii judgo
(if a DiviHidii Cduit lias jiowor in i^'ainishinont
lii'iicei'ilinyH, when the jnstiec df the i ase rei|uii'es
it, to grant a new trial after the lajise of foiirti'eii
(hiVrt, iiotwith.staii(liiig ( '. S. l'. ('. e. Ill, 8. 107.
/»■ rr Mr/.,, 1,1 V. M,L,.„l, .'■. I'. I!. 4(17. <'. \u
Hagarty.
iitarfr,
Uliiltrtliel
i. I.V.', I'.v •' 1"
against kill' n'
'friltihli'i- It apiieared that the note hadlieeii j Nonsuit lifter iiavnunt (if nmnev into eourt -
^oiziil 'iv the li:iili" >" t'"^' l"ii»''« "f ""^' '''•- to Division Court riiic' LSI) - lni|.oiiniiing money for
uhiiiiifliL' likiiiitil'' '■•"1 liiUiilcd it for eoiieetlon : defendant's oostis. Ok/y.s v. M,,,;/,!!,, S L. .l". N.
_Hchl, tliiit it was iidt indi.siiensalile tiiat the ' s. I'-KS. -('. (,'. Iluglies.
1 l.„ifiiiii sliniikl shew the Huit tii lie liroiiglit : ,. i • . ,. i i
(kdai'*""" • " , i„f ii,..f .l..f..„.l.,„f^ >,^,i... I No lieisoii exeeiit ;i liarri.ster or attoriiev duly
1 .till, statute, out that (leteinlants were ,. ' , . . ,' , , .■ 'i •/
lliiiki III' -'" • ,, .1,,, , .„„ f,,,. ii,,. ,,i.,:,,i;ii' iiualihed, IS entitled to iiroseetite or defend suita
.iti..,l til siuieed o I the lilea, tor tlu; iil.iintiii ■'■.■■■ ,, , ,' / , ,• ,i ,, ,
eiititkil I" »!>> i.,,i.i,:,. .,,,,1 *,, „„f;fl.. til.. Ill l>ivision ( onrts. /a r, ./iii/<i,- i, /li,- Cuiinfii
. t in t'li't the liolder, and to entitle the ■ , , . ,, ,..,,. ,. ...- * , ,. . •
::; i^ m hLw ids .iglit under the statute ' ■"";/ "-! ,^ '": •, •^' ' ;., '^- ^••■. '^-^ ''l^' ''"'■"""
^Sihv^^'^^^^- lit- the iioniinal i-laintiir, the ; v. A''''"'.'/'. •? I-. •'• ■<-'• -< • < . - foiwau.
j!n.ts>hiiiilil liii^*-' '"^^"' si'i''-'i''»H.V I't^'l'lii'ik It is |Seo now 3r> Viet. u. iS, ()., eiuiioweriiig all
' ,j,'|. ji, uiioli iictions to aver and iirove a judg- persons to .iiiiear oil behalf of others in tho
iiit:ittiisuii|inrt the exeeution, hut senilile, that; Division Courts.]
it is lint esseiitiak McDumil,! v. MrJ)„„„l,/ ,1 .^ j^^^^j^,^ ,^j. .^^.^j,,,^ j^^ tresi.ass under the l>ivi-
(i/.,iiy. 1^' •'''-■ ision Courts Aet. C S. U. C., e. lit, s. VX\ :—
■fl,^. real jilaiiititr need not shew uiiou the trial i Held, insullieient for not stating the time ami
that s'.'iiirit>' for eosts has been given as re(|uired phiee of the alleged trespass. There is no sub-
hysec' l.'i-l-" If "dt given, dcfeiiduntsmay uioye stantial ditlereiice in this res]ieet between the
ji,j(.iv iiidceediiigs, or jierhaps may plead it in form of notice re(juire(l under that aet and under
lianit till' action. Qiuere, a.s to the meaning of ; (,'. .S. U. C. c. I'.'O. Mnnri' v. 'ii'/liii, ;{!' (J. l!. 'J'.i'.i.
thatdause in the .statute. /''• _ \ j^ ,,1.^;,,^ ;„ .^ Division ( ^ourt for 840, for " de-
HeH, that a judgment in a Division (. ourt . tciitioii of plaintitV by defendants, on a journey
mavWsetoH'and allowe(l against the judgment f,.,im Toronto to Detroit and back (the iourney
ofasiiiieriiircdiirtof reconk /"'''"'^•'."' V' 'y"''''S ' occurring between --'Sth Xoveniber, when he
•2LJ. N. !^- •15-'-'- ^- Miami). -Uicharls. started from Toronto, and 'AM December, Mlieii
\,;,it in the l>i vision Cdurt having been tried he got back)," was removed by certiorari into
ontlif IStli ibily, before a deputy Judge duly ap- the (iliieen's Uencli, where the declaration was in
uiintdl, tlicdelcU'lant oil the •_'2nd.Iuly, applied contract for J^'iOO for delaying the plaiutill' in his
joraikW trial, by which, under rule iV2 ot the journey, in not starting the train at the time
liiiisimi Ciiiii'ts, iirocecdiugs were stayed. The named. An application to set asidi' the deela-
jii(l;;t ilifil nil the "Jtitli; the deputy judge before ration wa.s refused, the two claims being held
irlMii the CISC had been tried did nothing in the sulliciently similar, considering the want of teeli-
HBlttr, anil tlie new jmlge was not a|niointed nicalitv in Division Court pleadings. Ilnnlif
■ ■ ' V. <lmi„l Trim/: /!. 11'. Co., (! I'. It". ()7. C. L.
Chamb.- Dalton, C. ('. if /'.
Statutes regulating the practice and procedure
of a court apply only to matters within its juris-
diction, and cannot be called in aid to give juris-
diction where it is in i[ucstiiui. Aliriii-i v. .1/c-
lllctulier. Ill ilanuary following he ordered
D new trial :— Held, that he was authorized to
Uosiiumter sec. 107 of the Division Courts Act
Ic.S. U. ('. c. 19, and the Interpretation Act, C.
I i>.t'. 0. a, 9. (i, sul)-s. '2'A, taken together. ApinUir
[v.Mvr, •27Q. B. 4S(').
Atoeharge uiiilcr the Insolvent Act, does not (lillhjtit, 'I'.W. P. 171.
IfRvoiita party from being cominitted upon a
I jjilgiueiit S111111U011.S under the Division Courts
l.te, /h n Myicbiij V. (•',jo,/,i,jii, '2~ (}. li. I'tiS.
.\llivisiim Cimrt judge may, under sec. S(i of
jtheDivisiiin t'nurt Act, adjourn the hearing of
lumsi'liiini a regular sitting of the court to his
Ickmhers within tlie division, and such adjourn-
JBtiitis, if mit nlijected to by the parties, an
I nljiiuniment nf the eourt to hear that cause.
\hr, lhirrvin.i, ISO. P. 493.
Where a
I tie h»ariiu
The Administration of .lusticc .Act. 1S73, sees.
"24 etseij., authorizing the examination of parties
to a suit, &c., does not apply to Division Courts.
Ill rr Williiiij v. h'l/iiitl, 7th Dec. 1S7.">, AVilsou,
J., sitting alone. Mot yet reported.
VI. EXEI'UTION.S.
1. Gi'ucrnlh/.
The bailiff of a Division Court from which a
District Court judge, at the close of warrant of execution issued could, under 13 it 14
of a cause, said he would take time Vict. c. .53, execute it in any other county ill
It) Cdiisiilei', and deliver judgment at his chain- ] which defendant had
Iberson a suliseiiucut day, witliout naming an ' 10 Q. B. ()47.
j lour, aiiil liefoiv that day sent a written judg-
JBenttothe clerk of the court, who read it in
jli'otiiuo til the ajj'onts of both parties on that
j day,- Held, a sutlicient delivery of a written
ijo'lgmeiit within section lOG of the Division
|^'iiarts.\ct. //..
■\ Divisinn ( "i
(Kills. L'/ifijMrf V. SrriirH,
[See now V. S. U. C. c. 19, s. 1.%.]
Excentious from a Division Court do not bind
the property before they are placed in the bailifl 's
hands ; and, Qu;ere, whether before an actual
seizure. Calloihn v. MrlJuuxlf, 17 i}. B. 351).
' t judge may, under section 102 | In an action by the plaintiff upon an agreement
I oi the Division Courts Act, examine under oath 1 for moneys alleged to be due him, a special plea
70
I
»
r !
If
HOT
DIV^rSION COITIITS.
HL'tlirig iiiit tlmt «liili' tlif iiKincys iciiitiiind in
(lt;ti'iiil:uit'H li.uiils tlicy Wfiv sri/i'd liy a Iciilid
(if a |ii\ isiiiii ( 'iiiirt, iiiidrr an cxti'iiticiii ixHiii'd
frniii tljat I'diiit aj,'aiiist tin' (ilaintill', at the Mtiit
iif i>ii(j<l. : llclil, li.iil, III! lU'iiiiiri'ci', as it iiii-
IMH'tiMl (inly that cht'iiiilant was imliliticl to tin;
lilaintilV in a icrtain .sum, ami .sncli a claim cimlil
iiiit 111! Hfi/nl nndcr i;{ fi | | Vict. c. Xi, ». S!>.
(.Ml,' I'c, if defendant had set ciut the aniutint of
|ilaintiH"M njiincy in lii.s hands, and aNcii'id that
this siini I'cniaiucd .'U'ljaratc and a]iai't fiuni hid
(iwn fell- tliu plaintiir wiicn it was sui/cd, wlathur
that Wiiulil liave liccn a ;;ciiid defunci'. (Jliifkv v.
K<i.-h,n, 14 (^ H. ■.'.")!.
riaintili' claiimd a horse as imri-liasiT. De-
fuiidant clainii.'d nndcr a sale u]i(in a hivisioii
Ccinrt cxccuticm, which it a|i|iciii'c(l had nntliccn
I'l'gldarly ivncMfd ; Held, that the e\eciiti(in nut
I un in,!.' Iiecn kept iej,'iitafly in fnrce, the sale in
the interval cut it (Hit, and that the plaintill' was
entitled to roudVL'i'. Ciirrn/I \. Liiiiii, 1 0. 1*. oU).
A term for years in land cannot he sold nnder
a l>i\isi(in Conrt execntion, Imt oidy such thinys
IIS can he delivered ovi^r to the jmrehaser, or
HUuh securities as the < '. S. I'. ( '. e. I!l, s. I")!,
exjiresslv autliori/es the seizure of. Dniiiimi v.
KltxDii, -()(,». M. ;<l(i.
On the ISth of March, I.S.V), the lUill'alo, I'.rant
ford, and (ioderich railway company mortgaifud
the ;L,'iiods in (juestioii to Her .Maji;st\', to secure
i'la.OOO; and on the 17th of April,' KS.".:.. they
executed a .second mortgage of the saine projierty
ti) other jiarticH. Thest' mortgages \\cre duly
tiled. On the "JOth of l'\:lii'uar\ , I.S.'ilJ, an execu-
tion wa.s issued at the suit of Mer .Majesty for
the same deht, oji which the property was seized,
and afterwards other execution.-) came. The
sherill' put defendant, M'ho was a hailitf of a
r)ivision ('(Uirt, in jiossessiou on the •Jitth of
April, IS.")!), to hold, first, on aeeoniit of the
sherill, and next on uccnunt of sevei'al executions
which defendant had in his hands from hivision
Courts. On the lltli of l'\;iiruary, IS,">(!, the
Bullido, Hiantford, and (ioderich railway iiim-
jiany sold out to the llutialu and Lake Huron
made liv tl
the latter
sheriff, trespass will ii.it li,. ng;ii|.,(
tor the H('izure
law. A';,i./
mJiilc liv iHir
goods lieing, under the Divisidu ('nn-t wrt
alrcadv in the custody of the he
M,ir,/,',„ii/,/, \r,c. v. Mii;.
Held, also, in the aliscnee of a c.iMiit in t
declaration for nioui'y had and reccivcil, 111,1111"
plaintiir could not recover for the suri.liVs li, '*
which, under see. •-'."■.J. the sheritf c,,,!!,! ij.
seized in the hands iif the Hivision ('durt liiuijif'
aftur satisfaction of the jirior execiitimi //, '
Kxecutions for ahoul .'<•.'()() issued ;it';iin»t tli
l.l:iintitl' from Division fnurt, the (ii,t .il tV
county, imdcr which liindier was sci/nl at hi'.
mill, within that division. A .sale w:i,-.;ittci'iiiit,,l
tlicre without sueci'ss, and hy diieetinn ,if „„',
of the execution creditors tl'ie liiiilill' ||,.„| t|,^.
lundier removed to the county town, tliirtvinij,'^
oil, in the tifth division, « Jiieh cost s|i;(i |J
was there li.iught liy (;., the depiitv .dienif, i„r
Sim, and defendant pnrcha.sed trmii liim. ''I'lie
pl.iintilV having lirought trover, a i.siiit wa«
ordired, foi- though sec. I.M iprovi.les milv fi.r
sale in the division whci'e tl ' "
S(^iz(.'d, yet
a sale in another divisina tn a li,,!,;,
tide purchaser would jiass the pni|iertv, leavinj
the jiarty injured tosuetlie li.iiiill ; tliatC, uhkJ
such a iiurch.'iser, and '.hatj
assumed to
defendant could not lie made liaMe (m- puivlia,v I
iug from him. <,»iuere, whether 011 the eviiltiiw.
stated in the ca.se, the jury luiylit iKitliavti
found that (i. was in fact puich,iMiii,' fur (klVii-
(hint, who was a Hivision ( 'ourt li.'iiliU'; ami, if
so, under sec. l.">7, the sale would have heiMi Vi'iil.
I'emarks as to the ii;ir(lship df the la.se ti]nii the I
lilaintitr. ('(nn/iln// v. I'iikIiIhh-iI, -.'."i (^1. |;, ii^ij
A declaration against a Hivision ('(uu-t lailiil' I
fm- not levying nnder ;in execiitien, allegoil that
the plaintiir iMa'oveii.'d a judgiiieiit in 'thu IJr-t
Hivision Court yf the county, and tluiviiiiMii
sued out an execution dirccteil to clefeiiilaiit .is j
li.iiliir of the second Hivision ( 'onrt, eiiiiuii.iliiliin;
him to make the money out of the ;.'iii)ils nf ]
defemiant in the .'iiiit, wherusdever the same |
might lie found ; and that there were j;m(i(1s ..f
such defend, mt within the hailiuick ei (klVii-
railway comiianv, Mhieli was conliiined by the lit
Viet. e. •-'! ; and that company having arranged ; ''^"'t. ontof which he couM have levied : Ihll
the e.xeeiitions, the sherilt' aft'erw.irds delivered , that the count was had ; that tile writ wa.s imt
jHisscssion to their agent of the luiipeity at P.raiit- >'"'"" to he within the ."-J Viet. c. -J,'!, ss, IS,
ford, in the name of the whole. 'Defendant 'i'. '''"' it wa.s not alleged that the ti. fa. was to
liowever, chiimed to hoM, notwithstanding, under ' 'ju executed in the defendant's ilivisieii .ir mar
the J)ivision Court executions. Tlieseiixeeutions I t" it, or that the goods were within Miili ilivi-
■were all sulweipieut to the .sale made on the | »<"". the defendants hailiwick e.xteii.liiig tntiie
lith Fehruary, IS.KI, and had expired before the i whole county. Jhtrii v. ././///..<(//', .'il (,l. I!. l,Vi,
slerlir gave up iH.sse.ssion. The plaintills (the j Section 5!) of the In.solveiit Act of ISCd, aii-
.llurtaloaud lake Hiinm railway comi)any) having 1 pii^^ to judgment debts recov. icl in Hivisimi
replevied Irom defendant :- Field, thatthey were c,„„.ts, ,,,1 which exeeuthm has been issiad w .
entitled to recover. TIk linijal,, ,u,<l Lob II n- . ,„„| ^j,^, ,„„„yy l^^^vie(l thereunder by a bailitlnl
ro» ]l. II. Co. V. /Jrootshaiih, ID Q. II. 'M,. , j,,,^.], o,„„.ts, iiltliougli the seetidU speak.s inilyl
of executions delivered to lln ■■<lit riif. In this'l
action by the assignee in insulveiiey fdriiiniiiy j
levied under executions against tlie in.sulvdit,
or received by defendant the clerk nf a |iivi>i"aj
let'enilaiit re-
urt, liiiiij
Defendant, a baililT, having an execution against
L. , seized a yoke of oxen, which he allowed L.
to retain (Ui receiving an acknowledgment of the
lev\' endorsed on the writ. H. absconded Icav- , , . - 1 . ■
ing the oxen wjth plaintitf. In an action against j ^ '.'"''t. 'f ^''W objected that the 1 etem
defemiant for taking them away : -Hehl, that I ^^'^'^'^ *'"-' .""'"^'y ","!>' '"-^ '-^''' \"! ^''^' V ,,
by the acknowledginent given the debtor had ' I* '^I'l'eaml that the sale ha(l ta k'n i,lm. att.r
put it out of his power to transfer the goods i t''V assignment ; and it was. ^Hel.l, that there
^ • • - '■- _ .. „ — °... being no hen created by the mere sLi/nre, Willi 11
seized. Lonsint/v. Ji'miiiii/x, 9 Q. B. 401!, p. 1114.
A seizure of goods under a Division (Jourt
execution being entitled, under sec. 2()l!, C S. U.
C. c. '22, to priority over a seizure subse(|uently
took place before the assignment, the iilaiiitilf|
as assignee, was entitled to the miniey a.s |iartiit|
the insolvent's estate, no matter in wimsc l.aiuUI
it might be. Patterson v. McCurllnj, ii'i i). h. li'
llOi)
DIVIHloX ContTS.
1110
'J. .{Ilililiiiii llt^.
M„l,Vil j'"i--\ 111 trcspasM t'.ip t;ikiii>,' h.mhIh,
kfi'iiilaiit jiiHtiticil miilrraii iitt:vcliimnt ticnii ii
hivinii'li ' '"'"'' "''''■'' '"' ■ivci'icil til have Ki'i'ii
i MyA 111! Iiisalliilavit tliat the |ilaiiitiir was almiit
tdiilMiiiti'l Iniiii tliiMi>r(iviiicc, m- Iravo tin iiiity
uitli intcTit anil dcxi^'ii to ili'tVaiul liiiii of his
i;ii,l(lilit, taking: iiwiiy l)t'rsipiiai estate lialilc to
IV iiiiilir cxciiitiori lor ilclit ; IliM, plea
the altiilii^'it MfitliiT avci'riii;,' tlic eoinlitloiis
•iiu'ti'il liv till' statutr on wliicli an attachniciit
' . i,^||,.', nnr an.swii'ihji to tin' t'orni of alii'lavit
jjivin ill tlio si'liL'' till'', lio'lli \. W'nn/, II (,».
B, 4111.
Si'iiilili'. iix tliiTi' is II inateriKl ilill'crciice lic-
twfi'ii tlu' L'tiac'lini; I'laiisi^ ami tlie I'oi'in of alli-
ilavit givi'ii. tliiit tiiu former innst govern. //<.
T|n, .iiiidavit on wliieli tliu iittaelinient issuoil,
gtiiti'il. till' iiideliteilness of ]ilainti(rs to ilefell-
ihiit;tli:it ilclenilant liaci ;;(ioil reason to, anil
iliil lii'lif^'' ^l'"'' jil'ii'itill''' "liatli" aliseomleil
from tlif iiiiivince of ( 'anad.i, witli intent, >S:e. ,
((nlilniiiil, ite., '//' that the iilaintitl's " is" ahout
t(i alisciiiiil, i^i:., to ilefr.uiil, &e., oc leave the
Cdiiiitv III I'riini^ I'liUvaiil, \\ifli inti'ut, ite.,
taJiini; :i«.'iy personal property lialile to sei/nre,
jj ,„. that plaintilfs " is" eorieealeil within the
cou'ulviif I'rinre IMwanl, to avoid I leing served
villi till iL'e.'^s, with intent, ite. : Held, had, as
imtniiitaiiiini,' .•my one of the three alternatives
intlio. ■statute, ('. S. I'. ('. e. I!t, s. l!Mt. V'""*"-
l„i,/M/ri/. V. Sni'hi; IS C. 1'. 1!M;.
A iimi'istratf having issued ii warrant of at-
taclimi'irt miller sei'. -()(► of th(! Division Courts
M, witliiiut tliu atlidiivit ruipiii-ed, under w liieh
wmIs were seized : Held, that he had no juris-
diotinii wliiitevi'r, and was therefore a tresj)asser.
IJnijx.M'-dii-ti/i/ III., '2-2 C. r. 5(iS.
Defcmhuit, a justice of tlio jience, issued a
warrant of .-ittaclmient under the I 'i vision ( 'ourts
Alt. sir. 1 '.!'.> ; Held, that it was unneeessary,
iiioriler til give defendant jnrisdietion, that the
aliiilavit slinuld he lileil with the elerk, though
his Ufi'k'i't to do so miglit lie a hroaeh of duty.
j/w,-,\. (ihihii, :\-2 (). 15. --'as.
0(/ii/' rr(.<(.<.] - (loods in the hands of a Mivi-
HdiiCiiurt elerk under an attaehinent are lialile
til ;m I'Xi'iutiiiii issuing from a sujierior court
lied iri' till' iittac'liiug creditor has olitaincd judg-
meiit. Till' slieritl', therefore, may seize s\ieli
fiHKls;liut. (Jiia're, if the seizure wim-o illegal,
vtlittliir ;iii aetiiiu on the case wimld lie h// tln'
flMii/i;; rnililur against the sheritl' and the
[ilaintiff in the execution. Franris y. Jirmrii, 11
Q. B. mS.
Acimstalile of any town within the county in
wliioli a warrant (if attachment is issued under
12 Vict. e. ()9, s. 1, may execute such warrant.
Dthmii V. ifuori; 9 Q. I{. •2!)4.
Sees, .u luiil ;')() of C. L. P. Act only apply to
smtsinwliiuli an orighuil process has been served.
Fifhn- V. Siilkji, 3 L. .). 89.— 0. L. Chamb.—
Hagarty.
An (jiriifio/i of a superior court always takes
precedence iif an attachment of the l)ivisiou
Court. ///.
•Attaching creditors in a Division Court of the
ileiemlant in a judgment in the superior court,
will luit l)u admitted to except to such judg-
ment on the ground of fraud. I h.
I (ioodti Huixed iiinler an atlai hnicnt fioni the
I IHvision Ciiiirt may be i-eplevied by a third party
I ehiiming t hem us his own. Anin/ily. liniiiin'^,
, II (,». U. 191.
The defendant ha\ ing a elaiui ,ii;ainst one I!.
sued out an attaehnient froiii a I'ivision < 'oiirt,
under «hieh he directed the liaililt to seize cer-
tain g Is in the house where It. was li\ ing with
the plaintill', and he was present when sui'h
seizure w.is made. The goods Were placed by
the bailiir in the custody of the clerk of the
Division ('onrt, in whose p" session they con-
tinued until the bringing of this action : Held,
I that as the goods were seized in the possession
' of the defendant in the attachment, an action of
detinue could not be m.iintained against this
dclenihint, even aibnitting the goods to have
; bctM) all the tim*^ under his alisolute control,
without shewing that the idaintitl' had made him
actpiaintcd with hei'i'laim, and dcmindcd to have
them given up. (' liirL- \\ < hi; 11 (,t. I!. I.'K;.
In an action for seizing goods under Division
( 'ourt attachments, it was luovcd that a few
days bcfiM'e the seizure the goods h.id been sold
by ,'inctiiin under the ilirection of one of the
jilaintill's, who executed a bill of sale to the
Vendee, witnessed by the auctioned' : Held,
that this plaintill' could not afterw.irds bi^ pi'r-
mitted to set up that the sale was void because
fi'.iudnlent as against the plaintilVs' creditors,
and to maintain trespass for si'izing the same
goods ,'is if thev were liis own. Mi'l'hnlli r il <i/.
V. L1.1II1 i-l iil.^-2:Ui. H. 'till
.See Clin, II v. dnihniii, 18 (,•. H. :il.">, ji, IIO.'J.
X'lll. TUANSI IMl'l' UK .Il IKIMKN'r.
Held, under ('. S. IT. ('. e. 19, s. 14'.>, that a
transcript omitting to st.ite the issue and return
of a ti. fa. goods was a, nullity, and therefore that
a ti. fa. lands could not issue thereon. I'nrr v.
I}„l,'iii'<, \-2V. I'. .S,-).
Upon ejectment for land which had been sold
[and conveyed l.y the sheritl' under a von. e.\.
issued upon a County Court judgment, based
ui)on a Division Court judgment, the sale was
held void, inasmuch as the transcrijit of the
judgment from tlii' Division Court ilid not con-
form to the reiplirenicnt of sec. 14'_' of the Divi-
! sion (Aiurts .Act, by st.-iting the proci.'cdings
in the cause in the court below. .Iiimiiih v.
I lliurij, IHC. I'. 377.
A transcrijit of judgment in the Division ( 'ourt
for .'?(!,■?, having been liled in the County Court :
-Held, 1. Thatit thereby becinie a judgmentof
the County Court, so that under C. S. V. C. c.
24, s. 41, defendant could be ex;.inined under it,
and, 2. That umlui- .see. 41 a ca. sa. might be
issued by the judge for unsatisfactory answers,
though the judgment was for less than SIOO.
This section is to bo road as indepondont of sec.
I '2, and the ca. sa. under it being issued l>y the
judge, and not by the plaintiff, there is im limit
as to the sum. Kvhue v. Broini, 13 C. P. 549.
Ejectment having been brought for land sold
and convoyed by the sheriff to the plaintiff under
a writ of ven. ex. issued upon a County Court
judgment, based upon a Division Court judg-
ment, recovered on proceedings commenced by
attachment and summons issued the same day :
i ..i;i
'4i
nil
DIVISION (.'ouirrs.
I'l
- M fill, tliiit tlie M.ilf iiiiiliT till' vi'li. ex. WilM
Vniil, liy loaNnii nl tlif tlilll«rii|it iil' till' jllilKllit'llt
from till' l>i\ iMJiiii ('iiiirt imt having hIusx ii tliiU
till' |l|iM'l'l!llill;,'s ill that rulllt Will' I'otlllllrlUl'il
iiy iittai'iiiiicut. //'v» V. f. '/•-/(•-.«, lu'. I'. ;w;».
Hidil, that iiiiiKr tlu' hiviMimi CuiirtH Act, (',
S. I'. ('. c. I!), MS. 14l', I 1.'», I »■'), ail I'MTiitioii
ajiniiint ynmlM ami oliattils, must lir.-it isMiu' mit
(if till' l>ivi>iiiiii ('unit in whiili iiiilj^'imiit wa.s
oiiniiially ri't'iiviri'il, ami hi! ii'tuiiii'il nulla Imna,
bi't'iirn a traiisiri|it lit tlii' jiiili;mi'iit ran lit' tiaiiM-
initti'il Hinl lili'il ill a ('minty (.'mirt. Wlu'ro,
tlu'ri't'iiii', withuiit tliL' issue iif such uxt'ciitinii
mill its I'ctiii'ii nulla limia, a ti'aii>ii'i'i|it was Ijh'il
ill tliu ('iiiiiity ('(iiiit, umlcr which plaintill's
lamls wcri' scizt'il liy tin; shuiill' ami sulil : -
Ili'lil, that the salu was vuiil. Hiti-ijixn v. Tiilhi
(I III., -Jt ('. 1'. .•.4!».
IX. .lri)i:K.
I . Ai'liiiii.i iiiinin-*!,
Att.K'liniciit lies iiLtaiiist I'uuiniissinnL'rs of a
Coiut of ltci|ucsts who try causes in w liicli they
liave an interest. I!i r v. .UrJnt/zrc il nl. , 'lay. ■_'•_'.
f'oniniisHioucrs of the ciuut of reiniests umler
the olil Couit of Heiiuests .Act, who liail t,'i\en
jmlifiiieut ill a matter licyoml their jiiiisilictioii :
-Helil, not to lie liable for a seizure coiiimitteil
umler an execution issueil mi the juilj,'ineiit liy
the jmlge of die District Court, umler the
iJivisiou (4iurt Act, Dm-U v. Moure <■! nl., 2
Q. H. 180.
Kelil, that it is the duty of the .jmlyc to fix
the amount ami niimlier of sureties to lie {;i veil
liy the Division ( 'ourt clerk, before the elerk
enters on his iliity ; ami that iicriuittiny the clerk'
to enter on his iluty without it, gives a riiflit of
aetioii to a party grieveil, if ilaiiiages be shewn
resulting from it. A count ailiuittiiig the fullil-
luent of the reijiiiremeiits of the statute, Init
denying that the sureties weri^ freelioMers or
resiihuits of the county : -HcM, bail on ileniur-
rer. The juilge is not res|iiiiisible for the liling
of the securities of the Division t'ourt elerk, ami
the non-liling of the securitv woiilil not relieve
thesureues. r(irt-< v. Diirl^, 10 (.'. I'. L'u'!».
An action w.is brought in the Division Court
of Hastings by A. ami H. against ('., who lived
in W'olfiird, county of (ireiiville, for the [irice of
ci rc:(]iiug machine. Xo defence was oti'erod or
objection taken, ami judgment was given for the
lilaiutili', it being proved by a witness that the
maeliiiu; had been ordered by C. in Hastings, or
contr.ieted for there by him. The elerk of the
court, on the .•ip[iIication of one of the [ilaintitl's,
transmitted a tran.script of the jndgineiit to the
clerk of the Division Court of Wolford, on which
he issued execution, and gave it to a bailill', who
made the money under it, being indemnilied.
The defendant in the Division Court thereupon
sued the judge who decided the ease, the elerk
of his court, the two plaintiH's in the suit, the
clerk of tha court in Wolford, the bailill', and
the two jiei'sous who indemnilied him, resting
his ca.so on the ground that the judge had no
jurisdiction :-- Held, that the clerks ami the bai-
liff were clearly not liable, as they acted only in
a ministeri.d ca[)acity and in the performance of
their duty, and that the parties indenniifying
them for doing so were eipially free : that no
lU'tiiin wiiiild lie iigiiluHt the jud^t, fdr thr i^
deiicc justllicd him ill assuming that tln' ..ml
of action aroM' within his JMrisilictlnii, .m,) ,i\,
pliiintill' (di'feudant in the suit) li ul .it ,ill i,.v,.||(',
waived the objection by lint takiuj; it iit tliitn,il
ftiiil that the plaintiH's in the suit "i I'r iMtli.il,],.
as they had dniic nothing but st.itc tlmr (ian,,'
Meld, also, that evidence to shew want i.f 'm<,.
dicti which had not been given in tlu' liuisi,,,.
Court, w.'is rightiv rejected. <li'iiliiii,i v Smn-i
if <il., IH g. H. 'WJ.
.\. Cl.r.IlK AMI Ills Sl|i|.;|||.;s,
I. l/ntliiHtil III', mill .Iff'hiiH iiijiiiiiHl,
A luandamus was granted against the i\vx\
of a i 'ourt of l!ci|ue'<ts to give up tlic \n„\ ainl
jiiipers of the court, which he had refiHid tml,,
on being removed from ollice. hi ,■, J nrrmj
4 o. iS. :<a<».
In an action by a treasurer of a ilistri.t, imdir
the Division Courts Act, against the c!e'i-|.- i,f a
Division ('ourt, for not paying over inmuvH i\.
eeived, it issullieieiit to dccl.iii' in tliu tiv.iMiivr's
own name for money had and ivciivcil iivililtu-
daiit to the use of the plaintitl' I'm' the imnmsM
of the act. /Iiiiriiril v. Wnlinn, •_' 1^1. I!. %\\
The sureties of the clerk having ('utiToil into
the bonds authori/ed by 4 it ."i N'ii't. c. H, .iinl H
Viet. e. ;}7, are liable u|iiiii such Imih,! tn the
crown for moneys collected by tlic ilirk fur
suitors. Ifii/iiiii v. I'lttliiii, /\'i ijliiii V. Mfi'ulhiiiijh,
and Hetjiiui V. Munut, 7 <»>. IS. S;i.
Seiiible, tli.-it ill such action the ci'iiwn wmiM
be entitled to a verdict for the pciuiltv nf the
bond, and not merely for the sum ivicivi'l iiiiil
not paid over. I h.
The baililf of a Division Court may sue tlw
clerk's sureties upon the bond given ii'iiili'r l.'Kt
14 Met. e. oS, for fees on the service of imiass
received by hini :'or the bailill' and iint puiil nwr,
The declaration in such a case iiccil iiut .<iitrify
the names of the p.artics from win uii, ur the suits
in which, the money:-; claimed were recti vul.
Whether the money received was iiayalilc tul'.ire
aetioii brought, or ^^■lletller the clerk wiis justi-
fied in withholding it under theaot, isai|in;sti(in
of evidence as to Ciich sum. (.'mil \: Sirit-.mt
III., 1!K,». 1!. 109.
In ail aetioii against a clerk nf tlic hivisinii
(.'ourt for moneys reci;ived for li:iilill'.s lues,
entries made by such clerk in the unursc nf his
business in books kept under the jinivi.^iiniiif
an act for that jiurpose ; Held, cviili'iicc aj.':iiiist
the sureties. Miilillrfii I'l v. (lunhl il nl, IOC,
P. 0.
Held, that it is the duty of the judge tn lix the
amount and number of sureties to lit' jjivcii U
the Division Court elerk, bei'ore the clerk enters
on his duty, and jierniittiiig the clerk tn eiitei'im
his duty without it gives a right of iietiiiutna
party grieved, if d image be shewn resulting
from it. Piid.H v. DarU, 10 C. P. --'i!).
A count admitting the fullilmeiit of the re-
quirement of the statute, but dcuyiiii,' that the
sureties were freeholders or residents nf the
county : — Held, bad on demurrer. I'l.
The judge is not responsible for the tiling of
the security of the Division Court clerk ; and
1113
DIVISION (oiiri's.
nil
,li(iiu, ur tlu'suits
\wru ri'i.'fi\nl.
,s |i:\y;iliU' liil'ire
oli'i'l; \v,is jiisti-
act, LsiUiiK'stinu
Itlie fimrsi' "I ins
the |inivisiiiniif
,4erk tiM'Uti'V'ii
it df lU'timit'ia
., „i,i,. tiling of it wiiiilil not n-lifvi' thu Hure-
tie». "'• , ..,.,.
\ii ,11'ti'iii aKiiiiiHt till' siiri'tu"* lit ii Divihuhi
-, 'iiff |,|,,ik liir iiiniu'y* ri'i'fivi'il li\ liini for tlic
I'liiititf ImviiiK' I I ii^fi'lT('(l to iiiliitrafioii, tlic
I'rl'itri'"!' ""'""'**'''' '' "1"''''"''''"*''" "*■'''"« t'l'i^
• IS.'iS tlu' pl lilltill MlU'd tllf cli'lk fof ;,'i>iii|s Kold
tnliiin : tint the ilcrk tlifii proiliiciMl ii ini'iiio-
"lilulii lit' ■'ittlriiiciit lii'twcrli tin'lll, sij,'ii(M| liy
[i',. i.l.iilifill'. lvl:itiM« to MilitM ill til.' hivisioii
('Miirt, wliiili ^ilit'wi'il .iMuni of CM) (Is. Sd. iliu' to
tluM'l'i'k ; iiii'l •!' '' *'"' .i'"''-^'' tli''i't'ii|"ii". iiKiinst
♦/. I l,'rk'!< "i'-li. iiii'l witlioiit liny partiLiilars of
.(.,,11 liavitii.' l"'''!' >-'i^'''i> trciti'il tills lis ii sft-oH'
"iiliioiiiitiil it from t\w |il liiitill's claiiii, 'I'liii
'su'ivtii'.-. clffciidaiits ill tlu' suit ivfrrivd, .•on
t,.ii.l>'.l tliat til.' [il liiitill's ilcmiii.l tlini siumI for
k'ini.' II I'vivati! acooiiiit 111,'iiMst tin' clerk, that
siiiiHMiimiir.i|'i'i'ly fo't i'"'. ''H'l tl"''.v "•laiiiic.l t.i
liavoit iTcliti'.t to thotu in tliis iii'ti.in against
ii'ii.iifVHcili.v iv.a'iviMl for the l.laintill': liehl,
tint M lilt liiiil ''*'■" 'li'HL' ii> the foriiior suit
omU ii.'t hf thus ivvii'Wi'il, iiikI tliiit as the ■
oVrk .■'iiiM 'i"t t'''^'' ''''''''it 'I si.i',.u.l time f.ir this
,,,,„ ,w ftLjaiiist till' iilaiiititr. iiL'itlicr ciuihl iiis
iiiivtifs. FiviiUh V. (.■/•-.,»/» .7 „/., •.'() (,). 1{. SI.
PI liiitjif ,111.1 others took on tattiichiiU'iitsatraiiist
jniilis.Mii.liiiii.l.'htor, an. I til.- 1,'oo.ls s.a/e.l L.-in;;
cUiiiii'it. the |>laiiitiir iii.l.'nniilie.l tlie liailill", who
joH mill liii'l "^''''' ^'"^' ""'i'>'y t" .It'feii.laut, the
dirkiil'tli.' nivisioii C.airt. Tlii' elaini iiits siu'.l
thi' I'liiiitilf iiii'l the jiiurliasei's, iiii.l riTovered
ir iiitlii'm the value of the ifooils, after wliieli
,l,i.ii,|:iMt ilistriliuteil tlm in.uicy aniotij,' the at
r/ !,; ri'i"litors, of wl'om he himself was on.',
,,1 r„ti, i'liiii*' V ' ', reu]iim sue.l .lefiMiilaiit
V,' I'.iJsur.'ties as forni.mey reeuivi'il to his use :
11.11 ersiui,' the ju.l,LCineiit of tlie County'
: ,1;. I 1 ■ hu eiiiil.l not ri'eover, for the 111. mey
wi-iiiitiX'Ot'ivcil l>y ilefi'U.lant in his otli.'ial eajia-
. citv ib til.' iilaiatilV's, aii.l the h'covery a^'iiiiist i
tlie |il:mitilf, to wlii.:li ilefen.laiit was a strivu,i,ror, I
I wiiHii'it iinke it his as iif,'ainst (lufcn.laiit, ho iis
Ui ^'ii'imrt this aetion u)ioti the statut.n'V t'ovo-
luiit. (^iiiTo, per Ifayarty, .1., whether the
I phintiff, liaviuj,' iiroeuretl tlii; money to lie pai.l ^
Itotk'.li'ft'iiilaut us (;hat of the att.aehiiij,' cre.li- |
tors, cmiM ■ ftcrwanls elaini it as his own. Prc.i- I
Iteiv. Il'i/m'i/, '23 Q. B. 348. !
SomliK'. tli.it iiotico to A Division f 'ourt clerk is
I nilticifiit if it eiimjilies with ('. S. V. ('. c. 1!),
Iss. IIIS, HU. thiiujih it may not eiuitain all that
I ii rciiiiiv.l liy e. i2t'>, I'm" the latter act does not
I iivcrnik' tlie fiiriiu'i', hut thev estahlisti rule.s for
l&tinotaisoj. Md>I,i(tl,ry.'h.'<n.; 2;U,>. B. 573.
kiHivlnuii V. Smart, 18 Q. B. 482. p. 1112.
XI. R.Mf.IFF .\ND HIS SURKTIRS.
1. Acltitns hij and a111tl11.1l.
TrespHs i\. c. f.. with a connt for taking good.s.
like ikfeiiilmts justitied as eonunissii)nurs and
iliff i)f the Court of l{o(|uests, and the jdain-
f replii'il that lie was not duly summoned to
hlten.l nt the court at which judgment was
lii;ciiVtre.l ;--Hchl, reiilicatiou hail on general
|iltmiirrer. SItmi.i v. Cowan ct al., 5 O. S. 572.
Casehelil inaintain.ible against a bailifif of a
ICoiirt of Reiinests for falsely swearing to the
Iierrice of a siuumons, whereby judgment was
given agrtiuHt the idaiiitilV. t'/im v, .Wi-lhninlil,
K T. 2 Vi. t.
Hi'hl, that th.' Iiiiliir si'i/iiiL; Ulnlif lUl exeeii
ti.iii issiii.l liy till' ju.ly.' .if a histii.t ( 'oiirt under
till' IMn isioii ( 'oiirts .\et, on a iii.lyiiniit given
liy the .'onimissi.iners of the e.iiiit of ie.|iii'nti4
iiii.ler til.' old Ciiirl of lli'i|iii'sts .\ct, in a mat-
ter III yoii'l their jiiris.liitioii, was not lialile, Imt
that his dele lee must lie Jil.'a.li i| speii illy ;
Imt, iiiiiire, whi'tli'T he was not wilhiii th.' 21
.III.'. I. c. 12. /),f>-n\-. Mun,;, 2 i). Ii. ISO.
'I'll.' |ilaiiitiU' .li'.'laie.l in ti'.'H|iaHs for lueaking
ami entering the |il.iiiilin"s ,|iis.' in tln' .Nia','ariv
.listriet, \i'. 'I'll.' .li'f.'iiilant pl.'a.le.l thit li.ing
liaililV of a liivisioii < 'oiirt in the district of
I'li'o'k, he eoinmitte.l the allegi'.l trespiss ill dis-
cli iige ..t his duty as sii.'h ! iiiul that no n.iticc
was given to him of the action .me month li.fiire
it was lii'oiight. I>enimrer to the plea, .ui the
groiiii.l that it is not sh.'W n liy what authority
the defen.l lilt, tlioiinh a liiilill' in th.' .listriet of
Mroek, actcil in tlu' .lisfii.'t .if NiiiLtira wli.rc the
ti'.'spass is iaiil : II'M, pl.'i lia.i. hiir'i.i v.
.l/o.,,',, 4 <>>. Ii. ■-•(»!».
'rill' ilcfeiiilant, a liailill' of a l>ivision 1 'ourt,
having an exeeutioii .i'_'iinst [,., went to liini iiiid
sei/i'il a yok.t of oxen, \il.i' '1 he iillowe.l him to
letiin on reeei\ing an aul,' vle.lgmcnl of the
levy en.lorse.l on the writ. I,, aliseon.lc.l leav-
ing the oxen with the pl inlill. The .lefen.liint
t.iok th.'iii away, w' eup.m Aw hroii' '■ ires-
|Mss, alleging that ' ' lia.l reeeive.l i.icin from
Ii. .111 the day .>f his tlepartu'i' in [niyment of a
ilclit : Mel.l, tiiit under a ,ilea denying the
pliintilV's ]irop 'rty. it ^^ 'is ■' iii.peteiit for the
deleiiilant to give in e\..i.'n. i- the execution iin.l
sci/.ui'c under it. Hel.l, ivNm, thit l>y the aeknow-
K'il','inent given, the delitor h"' put it out of his
power to tr insfer till' go.ids seizeil. Lii-<xi>iti v.
./niiii/);ii, it >). B. 4()(i.
The l(i Vict. e. 177, s. 14, (('. S. V. ('. c. lit,
.s. lit,"),) rcpiiriiig (U'liian.l of |ierusiil and copy
of wu-rant .Iocs not apjily in an action iig linst a
hailitr acting nu.ler a warrint of atticlimeiit or
execution from a l>ivisi.in ('our!:, v here the
wrong coiiiplaiue.l of is the misc.uiiluct of the
defcii lant, ami not anything illegal in the writ
itself, or in the' act of granting it. .SVc/.r.v v.
Fiiii/liii/, 12 (,». B. I5,">. Followeil in i)l!/ili<iiif v.
A'-'/'''', 24 (,). Ii. 3!1S, and /''arson v. /{n'taii <t a/.,
loc. r. 7it.
Hel.l, th'it the surety of a jtivision ( 'ourt liaililT
under ( '. .'>^. V. ('. c. lit, s. 2.''>, is Jiot relieve.l
from liability uniler bis covenant by neglect of
his lu'iueiiial to execute such covenant. Mllhr
V. 7'»)//V, 10 ( '. I'. 423.
See. 25 of V. S. U. C c. lit, is ilirectory, not
mandatory: — Held, therefore, in an action against
a bailit^'and his sureties for an excessive seizure
by the former, &c. , that the fact of the sureties
of a Division Court bailitl' being luui-residents of
the county in which the bailitV's duties lay, did
not avoid their ovenant. J'<'arKon v. I'li/laii,
15 C. P. 7i).
In an i. tion against a bailitT of a Division
Court, the venue being local was by mistake laid
in the wrong county, and the jdaintitl' discover-
ing the mistake did not go to trial in pursuance
of his notice. Cross rules having been obtained,
the plaintiff was allowed to amen. I by changing
n'i^^-SmR \p ^ '■ '■ '' ■■'•'«
1115
DIVISION COURTS.
IIK
ii';
■;■■<.
the venue, ami the (lefendiint's rule for juilg- ' abscond
inent as in ease of nonsuit was iliseliarged on
the i)eivni(itoi-y undertaking, and on ))ayment of
costs. \V<in/'v.S<'.r.ini!t/i, 1 I'. It. ,S8'.'.— P. C —
Hiehards.
Tiie h:iilitr of a division Court may sue tlie
sureties for the elerU, ujion the bond given under
13 & 14 Viet. e. "18. for fees on the service of
Mumnionses, execui .ns and warrants, received
by liini for the bailiff and not i)aid over. In the
declaration in sucli a c:ise, it is not necessary to
Under this certain gooila.verf sti^p,!
and to an action l)ronght against tlie ifiistij,!
the magistrate, and the creditor, tlu' ciinst )7'
K., pleadcil not guilty, by sees. l!)li, 111;, .1,1,1' J,^
of the act:— Held, that these sections li;i'i|,.l,..iri.
no aiiplieation, for K. was not sluuii i„],.^
'lailiti' of any Division Court, and lia.l
'i""Mrr;,i,t
sjiccify tlie names of the parties from whom, or
the suits in whicli the moneys claimeil were re-
ceived. Wiietiier the money rceeiveil w.is pay-
able before action brought, or wlietiier the clerk
was justilied in withholding it under the act, is
a (juestion of evidence as to each sum. Cd-iI v.
Sinlzci; lit Q. B. l!)!l.
Declaration against a baililF of a Division
C(Uirt and his sureties on their covenant, under
C. S. I'. C. c. lit, s. '25, alleging th.at the bailitl'
under an execution ag.iinst H., wrongfully seized
and sold the plaintiff's goods, and received the
proceeds; that the plaintiff having sued the
bailiff in the County < 'ourt, the bailiff issued an
interpleader sunnnons, on which the .judge of
the Division (^'ourt determined that the plaintiff
owned the goods, and was entitled to the money
receiv(Ml by defendant, with the costs : tiiat the
bailiff still refused to ]iay the money to the plain-
tiff, wliereu))on the plaintiff proceeded with his
suit in the County Court, an<l issued execution
thereon, which was returned nulla liona. And so
the plaintiff alleged that the l)ailiff had neglected
to pay said money so received by him as such
bailiff to the plidntiff, being tiie jurty entitled
thereto, and luul misconducteil himself in his
office, to tlie ]ilaintiff's damage. I'lea, by the
sureties, that the said ))ailiff <lid i)ay to the ]ilain-
tiff all the money lie had received l)y virtue of
his office, to which the jilaintitf was eutitle<l,
and had not misconducted liimsclf, itc. :- -Field,
on dcnuirrer to the declaration, 1, that the de-
fendants could be properly sued on the covenant
in a joint action; but, 2. McLean, J., diss.,
that no cause of action upon the covenant was
shewn: that the wrongful act of the bailiff, in
seizing by mistake the goods of a stranger, was
not misconduct or neglect of duty for which his
sureties were liable ; that the money received
by him, though not received for the plaintitl'.at
first, became the ])lair.tiff's by virtue of the in-
terpleader order, but (McLean, .)., di.ss. on this
point oidy) that the plaintiff had lost his right
to sue for it upon the covenant by proceeding
with the County Ccmrt action, and obtaining
judgment there. Mc Arthur \. Cool ««(/ yi.ivn
V. Stafford, lit Q. B. 47(1.
The plaintiff sued C, a Division Court bailiff,
and his sureties, on their covenant, alleging a
judgment recovered by himself against (.,'., for
selling his goods under execution, contrary to
the orders of the plaintiff in the suit: — Held,
declar.-vtion ba<l ; for the plaintiff having re-
covered judgment against C. for the tort, could
not afterwards sue upon the covenant for the
same cause. Shan v. Creaxor ct at., 22 Q. B. 127.
Defendant M., a m.agistrate, gave a warrant
to defendant K., a constable, on the 2.Sr(l of
September, under sec. 200 of the Division Courts
Act, to attach the goods of (i. in the possession
of the plaintiff and others, who were about to
from the clerk. (Irmi v. McCki-Ii/
B. ."1(18. ' ■ ~. ,.
In an action of trespass agiin^t a Divi^,,
Court bailiff and one B. for cntiTii,^, ],i..,;||(jjj'"
close and tiiking goods, defendants iii~:i,k'il 'Jut
one H. h iving recovered a judgment in a Jijvj
sion Court against <>., tlic phintilf's nidtlier. ;iii,l
the goods in (|Uestion having l>ccn seized ii'ii,|,.r
an execution issued tliercon, tlic I'laintilf rlaiunj
them, wliercnpon the li:iililf olitaiiu'd an iutor
]ilcadcr summons, on which the judyf, altir
licaring the parties, adjudged tliat tfii' J„„,l^
were tlie property of tlio said exccutiiiii civ.litHi-
anil liable to said execution. The iiitiqiliM,K.r
sunnnons was produced, witli a niiniiti' cihImis,.,!
by the judge, adjudging tliat tlic
■ the
property ot tlie execution cinlitdv, an.l
ordcriu"; the costs to lie paiil l,v Hn. ciuin,';,!,! in
fifteen days, 'fhe plaintiff called witiicsvs wh,,
swore that the judge diil not decide the iimtUT
, but put off the hearing on pa,^ iiieiit m' ,.>.sts Ijv
\ the plaintiff within fifteen .lay's : -Held, tli:it tli'o
' minute of adjudication and iirdcr were eimdii-
sive to shew that the summons was ii(itenl:ii-"t'i|
and that the jury should have been so direotnl.'
j lichl, also, that although the iiiiiuite \va< iiitur^
1 nial, iii_ adjudging that tJK' goods were the jii'm.
pcrty of the execution creditor, instead (if saviii^'
, that they were the claimant's, or nut the ex'ecii'
i tion del)tor's, yet it was in substance a dismiss.il
of the plaintiff's claim, and a imiteetioii te the
liailiff. (>/{j)li(iiit V. Lcdh; 24 i,). 1!. ;fl)S.
In an acticui against a Divisimi Cuiirt h.iiliil'
and two execution creditors for seizing ;; is:
, - Held, upon the facts set out in this ease, that
; there was eviileiice to shew tlnit it was niit
seizure and one sale under the dircctimi and t"r
; the benefit of tiie two defendants linldiiiu' wim-
, rate executions, anil that they were theivfiTc
jointly liable. Loir/h v. (Jolcniaii, 2it (^l. H. Hii;.
A declaration against a Division Cmrt hailiff
j for not levying under an execution, allet;cd that
the plaintiff recovere<l a judgment in tliu first
Division Court of the county, ami tliemiiKJii
: sued out an execution .directed to defendant ;i.s
' b liliff of the second Division Court, cdininiiiidiiii
^ him to make the money out of the gdndsnf ili-
feiulant in the suit, whcres'fjver tlic same niijit
I be fmind ; and that there \rcre gcidds ef siiih
defendant within the bailiwick of ilelemlant,
out of which he could have levied : Held, tliat
the count was bad ; that the writ w;is imt sluwii
to be within the Act 32 Vict. c. 23, su. 18, 111,
for it was not alleged that the fi. fa. was t(i he
executed in the (lefendant's division or iiwrtfl
it, or that the goods were within such divisinn,
the defendant's "bailiwick" extending tn the
whole county. Dareij v. J0I111.1011, 31 (i*. B. I'A
Defendant, a Division C'ourt bailiff, received \
an executi(m against K. on the 12th of May, IS'.'i,
on a judgment recovered on tli:it day, iimler i
which, on the 14th, he seized two horses. Ihi,
the 10th, K. executed a vohintiiry assignment]
under the Insolvent Act, hut the ftssignce on j
being made acipiainted with it advised a [irivatsj
up
HIT
DOMICILE.
1118
iftbnient, iui'l •^'"'^ "*'*' receive ami act oii the
I 'liinimeiit until the 7th June. The hailill' who
till left tlie horses in K.'s pdsseusion, taidiig a
,1 for their fdrthcoiniug, took them ivgain
T nilvertisetl them for sale on the '2nd .lune,
h't .ill Iwiiig notified hy the >>tlicial assignee, he
Hiveretl them over to him (Mi the Itth. The
' f iv li' tlit'ii sneil the bailiff and his sureties (m
\eir"ciiveiiimt, f"r not selling and paying over
tl miiiiey hetwcen the seizure ami the clann^hy
I j,,,J^,^. ; Held, that he eoidd not recover ;
If i I'here was no misconduct, because the
i" iA' 'W^si''^ to the assignee on tlie execution
'[•",\^, lis^^iynuuMit, wliich was before the ju.lg-
.. .,„,(_ :.>. If the delivery was a breach of
Jj|[,^. 'tin' iilaiiititl' had sustained no damage,
f iiuit ii'r if the baililV had proceeiled to sell
„ .rfliHiKsi'Miee would no doubt liave claimed
SlKllUT, 1111. a^..;, ,• 1 fi 1 ;>
,,,. ]|,,rse8, as he did attcrwards. liroint v.
Lam'"'..:^''^^'5- 378.
XII. Mls(i:i.(.ANE01S C.VSE.S.
\iiiKtiiii> i'* ii"t maintainable in this court on
afiukmentiihtained in a division t'ourt, under
nt'u^i^^t. c. .">'l. McJ'/ii r~"in v. F.irr'-'^t(r,
l'ri.i.H.HIi'.!.
Hil.1, atiinniiig the judgment of the County
Oiiirt iiii'l I'liUowing the previous case, that an
,.^ti„ii' wi.ulil not lie in a County Court upon a
Iliviioli ('"lU't judgment. Jhniiii/l,/ rl ill. v.
*...,■(, :;:' (.». B. :m.
Stmlile, that debts of accounts within the
jnriMlictidii of Division Courts, will not be at-
tichttl liy the superior courts uniler C. L. V.
Act, IS'iti, 8. I'.H. Tuiij,hiii V. Sail, W I.. .1. 14,
If.Ll'lwmb.— Hagarty.
.\ tlaim in a Division Court for §40, for "de-
I tentioii lit iilaiiitill' l->y defendants, on a journey
ta Tiimiito to Detroit and back (journey
luviirmig liftwuen 2Sth Xoveuiber, when he
jitarttil lima 'I'l'i'onto, and .Srd December, when
Ili Silt liack,)" was removed by certiorari into
I fa\Hiwu's ikncli, where the declaration was
Icaciiutract for 8.')00 for delaying the plaintitl' in
liiiijiiurney, in not starting the train at the time
llBineil. An application to set aside the decla-
I ration was retused, the two claims being held
I siffioii'utly similar corisidering the want of tech-
luiality ill Division Court pleadings. Ilnntir v.
in- (.'film/ Ti-ank R. 11'. V<>., (J P. K. (17.— C. L.
lllumb.-Dalton, C. C. A- P.
city, after pn clamation of such bydaws, may
be "shot. MrKin-.i- v. Cuimili'll, 1 i). 11. I'tl.
DIVISION LINES.
See BOUNDARV— -SUKVEY.
DOCTOR.
iS'ef Medical Practitioner.s.
DOGS.
The corporation of the city of Toronto have
Ipower from time to time, at their discretion, to
liuke by-laws by which dogs found running at
IttrgerthinthtMmitsand hbertiesof the said
DOMICILE.
Sue KoHKItiN' Law.
The law of England as to granting ])r()bate or
connnitting letters of administration, is the law
to be administered by our i'mbate and Surro-
gate courts. Where a ]iarty domiciled in the
state of New York died suddenly, in itincre,
in the county of Wentworth, in this province,
having trilling personal ellccts about him of less
value than i'.") : — Held, that the Surrogate Court
of Wentworth had jurisdiction to grant ad-
ministration of his eti'ccts. Such administration
shiudd be granted by the Surrogate ( 'ourt only
to an inhabitant of the province. (Irmit v. Tin'
arnif ]];:-<f< rii J'. 11. ('"., 7 C. !'. 4;iS ; allirmcd
on ajipeal, .") L. .1. 210.
The ])arciits of the child were foreigners. 'I'liey
lived aiiart, and had brought cross actions I'or
divorce in the I'uited States ( 'ourts, the husl.and
complaining of adultery, anil the wife of cruelty.
'I'he child was placed by the father in custody of
a person in ('mada. The mother aindied to
have the child delivered up to her on tlie grouiul
that by the law of the State of Michigan, she
was entitled, when living apart from her hus-
band, to the custody of the child until it sho\dd
arrive at the age of twelve, subject, however,
to the right of the court to interfi're w ith and
remove it for cause assigned. An ex jiarte order
had been nuule in April, 187."), in the wife's
divorce suit in her fa\i>ur, directing the father
to give u)) the child to her. In .Inly, 1874, the
wife had given a formal doeunu'ut to her husband
renouncing all claim to the custody of the child :
--Held, that the p;n'ents being toreigners and
the domicile of the cliild not having, under the
circumstances, been changed, the law of the
,State of Michigan must govern ; but that the
order in favour of the wife being ex parte, and
the foreign judgment not being conclusive (-.S
Vict. c. 24), it was connietefit to consider the
"cause assigned" by the father ; and so it was
held (especially in view that the divmce suits
would be tried in a few weeks' time, and so set-
tle the merit! of the ease), that the mother hav-
ing voluntarily given up the custody of the child
to the father, she should not, under the present
facts, have it re-delivereil to her. In /v Khun if,
(i r. R. •245. --(.'. L. Chanii) -A. Wilson.
The writ of no exeat grante<l after filing a bill
in an alimony suit, renuiiua in fiirce after decree ;
and it is no objection that the wife resides out of
the jurisdiction, as during coverture the domicile
of the husband is the doniieilo of the wife. Mc-
Donald V. Mr Donald, 5 L. J. G6. —Chy.— Blake.
A woman left her husband in conseiiuence of
disagreements, without any threats of persomil
violence, or any well founded apprehension on
her part of violence ; and the husband expressed
liis readiness and willingness to take her back.
The wife failed to return, however, and the
husband left this province and went to reside
permanently in the United States. The wife,
without any eoniniunication with her husl)and,
or any intimation of a desire on her part to
; ■-; »l
'i,
1119
DOWER.
m>
renew their marital relations, and without any
oS'er to live with him, or any expression of
willingness to do so, filed a bill for alimony on
the ground of desertion , — Held, that in the
alisencc of an offer on her part to return to her
Intshand, and a refusal by him to receive her
his debts, &c., and then went tn the r,,;, i
States, where he remained for siime ytais (i
of the trustees took the sole niauagoineiit iif t^'
trust estate and went into possossidn Sv\
(juehtly, under an execution against tlRi.,„„i,'
the owner, the sheriff sold the steam iiiwii-'y
back, she was not in a position to claim alimony ; ! up in the mill, which the managinc^ tnisto I
that the domicile of her husliand was her donu
cilo also, and that his being resident in tlie
United Statas afforded no gro\ind for dispensing '
with an oiler I'y her to return to and live with
her husband, it not appearing that she was igno- :
rant of his i)lace of residence. Kihrnnh v. '
E<hi'a,-i1.s 20 C'liy. 392. j
Per Stntng, ^'. C, the will in ij^ucstion in this i
case, having directed the whole estate to be i
converted into personalty, the testatoi''s grand-
children doniicik'il witlnjut the province of
Ontario could not be affected l)y any act of the
legislature of this province, tlie locality of all
rights to personal or movable property Ijeing at
the domicile of the person entitled to it ; and '•
therefore the contingent interests of tlie grand- '
children was not "property, or ,a civil right" |
within tlie province. In re Guodhiiv, 19Chy. 3()(i
DONATIO MORTIS CAUSA.
.SV(' \ViLr..
DORMANT EQUITIES.
The DoniLint E(iuities Act IS Vict. c. 124, (C.
S. U. C. c. 12, ss. ")!), ()0) apjilies only to cases when
the cause of suit arose t)cfore tlie passing of the
Chancery Act, (18.37). The locatee of lands of
the crown in 1824 contracted to sell a portion
thereof, the consideration for which was paiit,
but lie continued to liold possession of the lands
until the year IH.'i"), when the heirs of tiie Ijar-
gainee tiled a l)ill to enforce specilie iierformance
of the contract, the patent from the crown hav-
ing lieeii issued in 1830. The court dismissed
the bill witli costs. Silrijx v. >V'7/.<, (i C'liy. 2.37.
Senible, that tlie-act ajiplies as well to express
trusts as to trusts created hy implication of law.
Spragge, V. C, diss. Wnujijw Beckltt, 7 Chj'.
220, in ajipeal.
Held, otiierwise, and the preceding case com-
mented on in (\ilihrrll v. //«//, (i L. J. 141 ;
affirmed in appeal, 7 L. J. 42; Aftoruiii-dcmml
V. (r'rdxi-//, () (-'liy. 48."), and Tijfaiii/\. T/Kiinji.fon,
9 C!hy. 244.
(v)uiere, whether it extends to every ease of
express trust. Attoriioj-Uenenil v. GrasM, 8
Chy. 130, in appeal.
It does not extend to cases of mortgage, and
it makes no difference that the mortgage is
created l)y a deed absolute in form. CaldirtU v.
Hall, () L. J. 141 ; Hall v. Caldwell, 7 L. J. 42,
in appeal ; Malloch v. Phi/u'i/, 9 Chy. itiSO ; J/c-
Doiiald v. MrDondl, 2 E. &'a. 39.3.
In 1832, a person who held a bond for the con-
veyance of laud on whieli lie had erected a steam
saw-mill and other buildings, having become
involveil, assigned his property to certain credi-
tors as trustees, to work the mill and sell the
lumlier, and apply the proceeds in payment of
was agent only for one of the wA\U-^ ,„.
chased for his iirincipal, at a great iin.luiv 'h'
aaid removed the same from tlic mill, ami ,'it '
wards procured a deed of the |ii-n|icrtv iii i
own name from the pr<iprictor, whieh li,.'.,i'
transferred to his jiriuciiial. In |,sr),-, tl
signor tiled a l)ill for an account df Vli,. "tvir
property, alleging that his poverty in the mean!
time had prevented him fnnn eiiir,r|.inu
rights. It was— Hell], in the eimit l.i "
he was entitled to tlie relief s(nii;ht
standing the Statute of l.iiiiitatiuiis' '"
mant I'lcpiities Act. litckit v.
1"W. tliat
imtwitli.
iliil the |i„|.
'■".7;/, 'It'liy. 4."4,
Rut on appeal the decree was revei'se.l, an.] th,.
bill in the court below was dismissed wi'tli ,,, •'
S. C. 7 Chy. 220. '''
In 1834, a contract was made fol■thel,ul■(■lM^l.„.■
the easterly hfty acres of a hitof laml, l,i,t t\\Mvl
mistake the deed covered the Mli(,le X ', thig
conveying the legal title ti. the nortli-ea^terl'v arf
north-westerly (piarters, but the imrehaserHeiit'
into possession of tlie portion actually iiiteinMJ
to be conveyed, and shortly after tlie vemlee
the westerly portion w(^iit into piissessiini i.f arnll
occupied it without any ilistuibanre nf lii< t'itlei
or assertion of right by the p.irty tn wh..m thej
conveyance had been made by mistake, (altlimi
all parties knew of the ermr that had (leLiint.li
until the year 1857, when the assignee n'' tli'i
person holding tlie legal title instituted pr„ae,l-i
ings in ejectnieiit, and recovered jud^iiRnt; tlie;
evidence of adverse possession not lieiiii'Milti.
cieiit to (mtweigh the legal etl'eet ef tliodml
which had been so emmeously executed. Tlie
court, upon a bill tiled for that piu'iiose, ivstraiiiol
tlic owner of the legal title from iiideeediiiL'M:
recover possession, and ordered him so eunW
the legal title in the land to the |ilaiiititt', wli.,«ii»i
eipiitalily entitlc<l thereto, and to ]iav the i"st»
of the suit, holding that the Donuai'it K.|uitii-i
Act <lid not apply to bar the plaiutitf. .l/v/.;-v,
MrKinma, 9 Chy. 22().
DOWKR.
I. Rkjiit of.
1. Wiiloii-sof Alhns, 1121.
2. M<)vt<ja(if<l Fropi-rlij, 1121.
3. Lanil.-i .told under E.r'ciiHijii n
Ta.n.f, 112.).
4. Other CV(.se.s 112.-).
II. B.iR OR CONVEYANCK OF DiiWEK ANI^
FOHFEITURE.
1. Bi/ lieleaae.
(a) Certijicate of Bar cj Ihim r, 11
(b) After Second Marrhiijr, WIS,
(c) Ot/ier am'.'^, 1 129,
2. Bii Eleetkm.
(a) Aereiitlnij DerUenor Bi ijti'-^l-', I131J
(b) Other Cane.x, 113(5.
1120
lit to tilt Viiit,,!
lanagena'iitiif u,
ossossidii. Sllli^.
gainst the g(h„is',j
a sttMiii fiigiiiu J,,
:igiii,H tnistw, w':.,
the I'l-fditirrj, ],i,;,
gi'L'iit uinlurvafe
liu mill, imil ;iit,7
a iinijierty in ]..,
tor, wliicii hi; al,
Tu IS."),"), the ,u
ciiuiit 111' thr tni>-
viTty ill tlicj iiiMi,
nun oiifun.'in^- |„j |
U t:iilll't licliiW. ;li
f sought, iiiitwitli.
iition.siiiiil till' liiii.
ir>'((;y;/, tj ('liy. 4:4,
lis rovorsc'il, mi.l tl,.
sini!<st;il witli oists
1-' fiirtliu]iiirrha-,.
iil'!anil,lmttliriii',.:,
K- whulu X. ,1,. tliu^
i lll>l■tll•l■,■l^t(.i■ly aiilj
tlu' ]niri'liasi.T wviitl
11 iictualty iiitciiilc-it
iifti'v tlif vcmleui;
to iiossc'ssiiin of audi
iirliaiicf of histitlil
pii'ty til wlmm thel
V mistake, laltliimutil
that liail (iccuiTei
tlif assigutc .if ty
s in.-itituti'il iiriimd-l
uri'il jiiil^imiit ; tliel
.ion 111 it huiiig siilli.I
1 t'tl'ei't (if theilmll
ly cXfciitfil.
)Ur|iiis(.', ri'stiaiikill
I'rniii iirinx'i'iliiiL'toJ
■il him Ml innvtvl
|ilaiiititl', wliHUasI
il til jiay thu iiistlj
hiinmint l'.i|r,itifil
laiiitilV. ,l/>./v,|
1121
DOWER.
1122
i ;Mf
H.iiciifidii III' jm
1; oi; DowKii ASD
irnf Diimr, llil.
hirriiiiji-, ll'-'S.
•J'.t.
iMo/' Bi ijtii ■<>■■', "'^'1
3G.
3. Bij if iirriaje Settlement, 113G.
4. liy Adulter!/, 1137.
,"). Statute of L'lmituthins, 11,37.
C. Other C(iiie.% 1137.
[11. ExcHANOE OF Lands, 1139.
IV. AsSKiNMEXT OF DoWER, 1140.
V. S.U.K <>F. I'NPEK I''XECUTIOX.S, 1140.
VI. Actions and .SrtT.s for.
I, Who nmi/ lie DeJ'endantu, 1141.
._>. pknilhiij, 1142.
3. Prnet'ire.
(a) II'/vV.S 114.3.
(b) Other Cnsct, 1 143.
4. Ei'iiliiiei',
(a) <)/ if(irriii;ie, 1145.
(1)) (ifSeixhi, 114").
(c) '>///(■/• C((.'<e'(, 1 147.
"i. DituKiijea (till? C'ontft.
(a! When Reeonralile, 1147.
(b) J)i iii'Wil anil Offer to Annii/n under
l;,',0 14 Vkt'. e. ->H, C. 'a. U. C.
c. ,.V, 1 148.
(c) Hou- Extimated, 11 -,2.
(A) Other Ca.se.i, 1152.
VII. KliniTS OF PlRlHASER.'^ WHERF. THERE IS
(1i TsTANDixr; Dower, 115,3.
VIII. Miscellaneous C.vses, 1153.
l.\. Action' on Covenant for title when
Claim for Dower Exists — See
Covenant for Title.
[Th: iire.ii-iit Dou-ir Act of Ontario U the S.'
]y. (. 7, hji which ('. S. U. C. c. 2S, and :.'4
IX. c. JiO, are rejterded. Thin Act ;.< ntrotipec-
fc; ft Tate, .'T L. J. X. S. :.'ila.]
I. RiOIIT OF.
1. WidoiCK ()/' AlieuK.
Tlie widow of an alien naturalized is entitled
toiliiwer. White v. Laimj, 2 C. P. 18G.
Tlif willow of an alien is entitled to dower in
lamliif which her hnshand has been seised dur-
ing Ills lifetime. Durenpurt v. Davenport, 7
I C. P. 401.
2. Mort{iuijed Projiertij.
D. S., seised in fee of Innds, mortgaged them for
999 years to one S., who took jjossession. 1). S.
jfterwanls conveyed in fee to C, and after C.'s
I death the [ireniises were sold to defendant at
I iherilf's sale under judgment against ('. His
iriilow then sued for dower ;— Held, that she
ihoulil have judgment for dowei , with a cesset
I Heciitiii (luring the term ; but Semble, that to
authorize a cesset exeeutio, the facts respecting
thetenn should have appeared on record. And
q«*re as to plaintitf's right if defendant had
atished the mortgage, and had not taken an
alignment of it, or kept it alive. Chinholm v.
\ Tip'H, 11 Q. B. 338.
"1
ixiid uaiinot rely
/'lifts v. Mei/)i:i,
The wife of a mortgagee is not entitled to
dower. Jfani v. Ifaiu, 14 (). B. 497.
Where an estate was conveyed to a vendee,
and immediately mortgaged back again to the
seller to secure payment of the purchase inoiiey :
— Held, that the widow of the mortgagor was
entitled to dower, Itidiiiisoii. ('..!., diss. .Senible,
per liurns, .!., that to r;iisc this ijuestion the
tenant must plead specially,
upon the plea denying sei.sin.
14 (}. B. 499.
A. conveyed land to B. in 1833, and on the
same day took a mortgage for the wlnde purchase
money. B. paid nothing for cither principal or
interest, and in 1840 rc-coiiveycd absolutely to
A., the land being then vacant. H."s wife did
not join in either mortgage or reconveyance, and
eighteen years after IJ. 's death, biought an
action against ('., who had purchased from A.
Soon after tjie reconveyance, and had erected
valuable buildings : Held, in a]ipeal, alKrining
the judgment of the Queen's Bcncii, 20 (). B.
213, an.l I'otts r. Meyers, 14 (,). B. 499, that the
seisin of the husband, B. , was coinpiete, and
th.at the widow was entitled to dower. Smith v.
Xortoii, 7 L. J. 2(13. — K. & A. .See, also, Lipich
V. O'llara, (! C. P. 259.
Dower may be maintained against a mortgagee
in fee, although not in possession, and although
the mortgage entitles the mortgagor to hidd until
default, which has not been made. Strirart v.
Kill/, 25 Q. B. 15. Sec, also, Walb r v. Boultnn,
G 6. S. 553.
Held, that the eijuitablc defence in eject-
ment in this cause, lilcil under the Adminis-
tration of .Instice Act of 1873, sees. 3 and 4,
setting up tlie right of a widow and dowress, who
had paid otf a mortgage made by her husband,
to possession of the land as against the plain-
tiffs, her children, until .she should be repaid, and
afterwards as dowress ; and setting up also a lien
for improvements made under a lease from her,
fully set out in the report of this case, though
probably not att'ording a good eiiuitable defence,
should l)e aUowcd ;- Hold, ;ilso, that a plaintiff
may reply and demur to such an cipiitaljle de-
fence. 3() Vict. c._22, as to improvements on land
made in mistake before notice, ami the lien there-
for, discussed. CitiTickx. Smith, 34 t,). B. 389.
A married woman is not, in respect of dower,
a necessary pi'.rty to a bill for the foreclosure
of a mortgage in which she has joined to bar
dower. On an application, however, for a mar-
ried woman so made a jiarty to answer sejiarately
an order will be granted, but the plaiutill' will
take it at the risk of having the costs of nniking
her a party afterwards disallowed. Dariilxon v.
Jioi/es, () P. R. 27. — Chy. C'liamb. — Strong, on
appeal from Holmested, A'efiire.
Where a mortgagor has executed several mort-
gages, in one only of whicli his wife joined, the
projier deci-ee on a bill for foreclosure against
the widow and devisees of the mortgagor, is one
in the usual form against them all, with a deidara-
tion that upon paj'ment of tlie mortgage execu-
ted by the widow, she shall, if she choose, be
let into her dower. Thihodo v. Collar, 1 Chy. 147.
A person eijuitably entitled to lands (one who
had not paid up his purchase money or obtained
a conveyance) mortgaged them with a power of
sale. The power was not exercised until after
' ','
.l
I
1123
DOWER.
tlie death of tlic mortgagor ; afterwards his
widow (ilud a hill against the purcliaser under
the jiower for dower. A dennirrer for want (»f
e(iuity was allowed ; dower attaching only to
siieli eciiiitahle estates as the husljand dies seised
of, and the sale when made having relation to the
time of creating the jiower, and theroliy over-
reaching tlie title to dower, which hail in the
meantime attached. Siuil/i v. Smith, 3 C'hy. 451.
L. purchased froni S. , who conveyed to him,
and immediately took hack a mortgage to secure
the purchase money, in which L.'s wife did not
join. L. afterwards conveyed his eipiity of
redemption to H., who suhseipiently conveyed
to S. , and S. then sold to another party. I^.
having died, his widow sued at law for dower.
A l)i)i was tded, praying an injunction to stay
the action, and for a declaration that the widow
was, Ui:der the circumstances, not entitled to
dower ; — Meld, that the mortgage was not ex-
tinguished as a charge on the purchase of the
equity of redemption l>y S. fioui H., or merged
in his legal estate ; hut the court refused to
restrain the action at law, and declared that the
dower to be allotted sliould he charged with
the payment of one-third of the interest of the
mortgage money unless defendant chose to pay
off one-third of the mortgage debt. Eipiity will
assist a dowrcss liy remoxing out of her way a
satistieil nuirtgage, and will aUow her to redeem
an unsatislicd mortgage. Per Esten, V.C, that
the (piestion of merger is one of intention ; in
the absence of evidence of intention, the court
will consider that course selected ^)y the pur-
chaser which was most for his lienetit ; and that
in this ease the luoi'tgage became merged in S. 's
estate : that the plaintiti' had no eipiity to re-
strain the action for dower, ami that the Ijill
shouhi be dismissed. Per Spragge, V. ('., that
L. had in him before his conveyance to H. the
benelieial legal estate, being entitle<l to the value
of the land lieyond tlie mortgage debt, and any
other incidental advantage ; and that in the in-
terval between the execution of the conveyance
and mortgage, I,, was a trustee for S., l)ut not a
1)are trustee, llcncij v. Lmr, \) Ch}'. ^Oo.
]f the wife of the miu'tgagor join in the exe-
cution of the incund)ranee, 'and a sale of the
mortgaged estate is afterwards eH'ected under a
decree of the court made in a cause instituted
upon such mortgage, it is not necessary for her to
join in the conveyance to the purchaser. J/oo/v
V. Sh'iiimn'K, 1 Chy. Chamb. o!). — VanKoughnet.
A final order for foreclosure having been ob-
tained, some time afterwards the mortgagor
tiled a bill to redeem, and the etiurt had opened
the foi'eclosure and granted redemption, it i\\>
pearing that no change had taken place in the
relative position of the parties : — Held, on a
motion by the mortgagee for payment out of the
court of the mortgage money, that it M'as unne-
cessary for the wife of the mortgagee to join in
the conveyance to the mortgagor to bar dower.
Sinqmm v. Simpsvn, 1 Chy. Chaml). 205. — Esten.
Where a woman bars her dower in a mortgage
to secure a debt of her husband, and after his
death the property is sold for more than tlie
claim of the mortgagee, the widow will be en-
titled to have her dower secured out of the sur-
plus in preference to the simple contract creditors
of her husband. Shcppardy. Shcppard, 14 Chy.
174. But see White v. Bastedo, 15 Chy. 546.
A wiihiw who has barred her il
llii
'^^^•^■i' ill a iiinn.
gage given l)y tlie husband for lus nMmlil.t
entitled to have the mortgage ]iii
husband's assets. If she claim i
iilf 1,
""■'■I' 'IlLTclv rm
of the ecjuity of redemption, she lias luinrit-
over creditors, but if out of the cunms i,f tf^
jiropcrty, she is postpone<l to tlifiu, (i|, .^ '<
of the lands, as soon as the debts of tlm ImUan;
are paid, she takes precedence ovci- tlic liuir iiiJ
volunteers claiming under the liusliand aiil I '
conies absolutely entitlctl to hcrri;,'litsas ildwiv,
in the balance of the pnn'ceds. Sluiniai,! ,.
Sheppard, 14 (irant 174, noticed. /,'. 1/,)/, ,•■;
8 L. .1. N. S. L>84. — 15oyil, .l/-(x/,.r. ' "'
A mortgage was created by an al.snhiti^ lun.
veance with a separate defeazancc, ami tlir ui„rt.
gor having <lied, his heirell'cctcd aiiamnyuufnt
with the mortgagee, who convcyt'd t(i tlit' hvir
an<l accepted from him a dec<l of a piirtinii,,t th
land in discharge of the iuortgaj,'(.' ilclit. Tli'
heir afterwards sold to a liarty wIk, IkuI nutiie
of the several conveyances : -Held, that the
widow of the mortgagor was entitled tnilinvtrin
the portion conveyed by the liuii- tu tin;
chaser. Mcliitii,-<h \. Wood, 15 Cliv. !Il'.
pur-
A testator while married purdiaseil tlk't-iimtvi
of redemption in lands to wiiicli he al'lcnvanlji
died beiielieially entitled. The widow ehiiiiit,!
dower out of the whcde property liotli k-'al wkI
e(piitable, and that the surjiliis money iiriidiiadl
by a sale of the premises after ]iayiie' nil' the
mortgage, being less than oiic-tlurd iif t1icMii„Jc
purchase money, should lie invested I'l.r htri
benefit, as her dower ; but there lieiii;; ennlitdrs,
and specific and pecuniary legates under the I
will of the testator, whose claims woiihl eximl
the suridus :--Held, that the widdw was oiilv
entitled to dower in the siu'iilus iiKniev which ''
rejiresentcd the value of the c(|uity.iif ivdiiiiii- '
tioil. Thnqic \. .Nir/iiin/.<, 15 Chy.' 4o;j,
AVhere the wife joiiin in a iiinrteaye ef her j
husband's estate as a security to tlie"iniirtga"ee, '■
and for no other purpose, she parts with her
dower so far only as may be necessary fur that i
purpose, and she is a necessary ]>arty to a siihse-
(pient sale by the husband free Irnni diiwer, >
Furnxf \. Laijcock, 18 Chy. (ill.
A wife joined in a mortgage of her luisbaiiirs
estate to secure a loan of onc-fimrth or onc-tii'tli j
of the value of the property, and lie suliseiiiieiitly
sold the property ; his wife claiineil to lie uiititleil
to dower, and refused to join in the oonveyaiicei
without a reasonable compensation being ni*le j
to her ; her right to dower being supiniseilliy all j
parties to exist, her hus'ljand hail a [lieoe ei Liml j
conveyed to her, which she accejited, and tliere-
upon she signed the conveyance of the nmrtgagcil j
estate. The transaction appearing tu lia\i' been
for the interest of creditors, it wa.s held tn k j
valid, independently of the ipicstion whether he.' i
claim to dower was in such a case well fouiuteil ]
in j)oiiit of law or not. Ih.
Where a wife joins in a mortgage she is uotj
entitled on the death of her husliiuid, insolvent, |
■;o have the debt paid in full out of the assets to!
the prejudice of creditors, Bahrx. Dowharn, 191
Chy. 113. See, also, Whitew Bii.-<U'<h>, 15Chy.546,r
A vendor took from the purchaser a raortgagei
for the whole purchase money, in which his mfe!
joined to bar dower :— Held, the hufsbmul liaviiigl
died, and the property having been sold, thatj
DOWER.
1126
*)rtgage she is not j
luslmuil, insolvent, J
mt (if the assets to j
bry. Dii'i'hnrihy ,
,(4m/o, 15Chy.o4()',i
rchaseramdrtga^j
r, in which liisffifej
,be hushanil liavnigl
ig been sold, tiiatl
1 ttidiiw "■^^"■"'^'"'^^'^ ti> iliiwei- in the excess,
f."' .jyiiioiit 111' ni()rtj,Mge iiKiiioy unci interest,
f ^ ',,'i.ir.' ' 'iimiilii'll V. /.'«//((/ ( 'iiiiiiilUui liiiiik:
lilt 11(1 niii'"-' /
|l!)Cliv,334.
S,et'«"^""'"l/v. Al.j'ru;; 1-JQ. \\.'.m, p. 1141.
Exi'ctttUiii or I'll r Taxii.
3. |.,I|||I■^ •>'"''' "'"''''■
The dcwo"' (if ii wife is n(it l)arreil l)y the
I 1 :„ ..viM-ntion (if liei'lni.sband's estate. Wnlbr
ls.lli'ine.\ei."y
(' ihed seised in fee (if land, having devised
tlie^iine to hi'' "ife for life, and after her death
; Jy, j„ii, the demandant's hnsliand, in fee.
TIr. te>titiir's widow, the devisee f<ir life, died
l'.,„rtdeniaii(laMt's luisliaud, and (hiring her life
111 interest was sold under ali. fa. against lands,
iiVninveveil td (ine .1., who having recovered
t,-i>>iim's(d(l to the tenant, who mortgaged
li'iii; '"iiin to •!., hut continued in iiosses.sioii. i
]'t«isii"t shewn whether all the mortgage money !
h,,lliedi li:iid or not ; hut the time for iiayinent \
oi stveral (if the instalments had not arrived : —
Heltl, that the demandant could not succi^ed, ffjr
*1,^. hibltind was never so seised as to entitle his
i.w4rt\ tiidower, his reversionary interest having
Veil sold (luring his lifetime. Ciniiiiihi'j v. .1/-
m'.f.Vl IJ. !'■ '^'W ; atfirined in I'ulki r v. Eriiii.-<,
13 (,t. ii. .'dli.
A sale (if land for taxes destroys the right of
likwidtiwof the owner to dower. Toiiilinson
lY.//i",5('hy- -•'"•
4. Othi'r CuiCH.
Wlit'rea iioiiiiiiee of lands hefore patent issued
^cflvcvedtheni away, being unm^irried, and after-
ir^U hivinii (ditained the jiatent, made a new
nvey,lnee to the same party, being then mar- j
>.1:-Hel(l,tiiat his wife e(ml(l not claim dower, j
slio was estoiipeil by the deed made before !
le piteiit issued. Mfljvtiii v. Ldi'l/iur, 2 Q. j
i
A tcjtatiir. after making s]ieeiHe devises of j
lltrt,mi lands, aihled, "at which time." (i. c., |
pitcr his youngest sou should have arrived at the
editwcuty-due years,) "it ismy will that the '
lltiilt of Hiy lands lie divided in four e(iUiil ;
prts: one jiart of which I give jind l)e(iueath to i
Inytwo dauglitei's, A. and B., the other three j
parts to lie divided anumg my three sons, (.'., I).,
oil K.' .sieinble, that under this devise of the
esiJiury estate the devisees took not a vested
bt«e, Imt a eontingeut ami future estate, and
lat I'lir life only ; the estate in the meantime
kesting ill the lieir-atdav.-. Semble, also, that
Ike heir-iit law would vheii have an estate which
^oulil not entitle his widow to her claim for
lower, the estate not be'.ng a benelicial estate of
ilieritinee, hut a mere temporary interest of
ineertain duration, contingent upon a distrihu-
I Ijeiiig made in pursuance of the will. Mr-
ku V. .l/i;;;/((//, 7 Q. B. 554.
.\. conveys land without consideration to N.
"., who remains in possession some years and
aves. A. suhsequently conveys to T. W., for
' , the same land. In an action for dower by
|e willow of N. W. against T. \V.— Held, that
? first deed being without consideration was
Milulent as against the second, and that the
claim for dower resting nj)on the seisin under
it w.as not sustainalde. Wil-inn v. Il'/Vvo//, St'.
I'. 525.
A. by will devised a certain lot of land to B.
for her natural life, and then to ('. diii'ing his
natural life, and then to iiis heirs forever. B.
snbse(iuently e.vecuted a writing, liy Mhieh she
agreed to demise the land in ciuestion for all her
term and interest to ('. in ennsideration of his
allowing her the occupation and use of certain
portions of the premises, &e. : Held, tliit the
force of the surrender to t'. whieii was elVected
by the demise to him of all tiie term of the
interest of B., the tenant for lite, passed to him
an estate of fee simple in possession, whereof his
wife was entitled to (lower, lini-t,* v. Jhinli/, 9
C. I'. li'O.
Where the husband is seised as tenant in com-
mon, his wife may be endowed. //((//( v. Ifuni,
14 (,). B. 4!»7.
The death of one of two joint tenants during
their joint seisin jiasscs the title to the other joint
tenant free from dower of the deceased tenant's
wiibiw. HiU-llI V. Fiui^rr, !•_>('. 1'. IIS.'I.
Dower. Plea, on eipiitable grounds, that the
land was part of the partnersliip proiierty and
the stock in trade of the husband and S. trading
together as merchants, and was [uirehased liy
them as such jiartners, and jiaid for out of their
partnershii) money, and used in the said part-
nership business, and tiiat the husband was
never seized thereof, otlierwise tlian as such
pirtner : — Held, that the pleasutKeieiitly shewed
the land to have been purchased for partnership
purposes, and formed a good defence. Cun'iirv.
Pint/, 25 Q. B. 277.
Held, that a devise of land by the husband to
his widow for her own and her son's siipiiort
till they should ciune of age, did not make her
tenant of the freehold, so as to prevent her from
recovering dower, she not having elected to take
under the devise. Jfri/nnldn v. I'ci/iiolils if ai,
29 Q. B. 225.
A widow is entitled to dower in Iambi pur-
chised from the crown by her husband, and
whereof he died possessed, although no patent
issued, and the purchase luoney had not been all
paid. .She is also entitled to one-third of the
rents and profits for six years before the suit.
C'ritiii V. Ti'iiiiilrliiii, S Chy. 483.
The seisin of a husband when he takes an
estate in fee, and immediately mortgages it to
secure a portion of the purchase money, is sufti-
eieut for the wife's right of dower to attach to
it. Lijur/i V. O'llara, C. P. 259.
A. entered into an agreement wherehy he con-
veyed part of his land to his son, L., "on account
of natural love," tins son to give his father one-
half of the produce, if demanded : — Held, ii
valuable consideration. A. afterwards by deed
conveyed to others these premises, and their
assignee having commenced ejectment, L. 's widow
obtained an injunction against the action. L.'s
widow having meantime intermarried, the ivssig-
nee moved to dissolve, urging that the widow's
estate had determined, and that it was defeasible,
and had been defeated by the testator's subse-
(juent transfer for value, under 27 Eliz. c. 4 ; but
the application was, under the circumstances,
refused. Leech v. Leech, 1 1 Chy. 572.
i m
ir^mty, ,
f . . ,,
1127
DOWER.
ft
Tlio 4 Will. IV. c. 1, giving dower nut of
e(Hiit;il)le interests, ai)i)lies as well where the
])nrtii's were married after as before the aet.
M,-liiiusl, V. \V<„i<l, 1.-) Chy. !)2.
Where property was conveyed to a husband,
under an agreement with the grantee that the
grantor should be allowed to remain in posses-
sion for life of a .spucilied portion : -Held, that
the wi<liiw of the gr.inte(! had no right to dower
out of this ))ortion during the life of the grantor.
Sliitn-y. Slidir, 17 Chy. 4.").
rro]i(^rty owned by a married woman was in
jHis.sessiiin of her an<l her Inisbaiid ; W. their
seeoiid .sciii lived with them. The wife died, and
the liusband afterwords left tlie premises, but
AN", continued to reside there. After the death
of their father, .(., the eldest sori of the original
owner, ('onveyed in KS.S'J to ^V., who Wivs still in
sole ])ossession : .l.'s wife<li(l not join in the eon-
veyanee: HeM, tliat there having been no dis-
seisin, and .1. h.iviiig conveyed before the jiassing
of the Ileal I'mpertv Aet, his widow was entitled
to <lower. i;< lliii'jiii.<, l!t fhy. .30.S.
See Burns v. Buni.t, 21 Chy. 7, p. 1139.
11231
A certificate on a deed executed in isir
which the wife of tlie grantor was not t ''"
stated, that "on the HOth .May, I,Sl>!( ^l^''\
came before me \. !•'., judge nf'tli, MTil'"-!
District Court, Mary, wife of tli,. witl,;; , 1
eonltobert :McXally," and bciu,- ,.N;,,nil",rf '
sented to be barreil of iicr dower. 'I"],,, „ '' ■
was described in the (U'cd us of tlic tnwu ,1?""
ston, county of [''rontenae. It wasulm,t.u.,lt'k^;|
the wife did not appear to have liee,, xy^'^Jj'X
in the county when the certilicate was ,' \
but -Held otherwise, for tlie |iie,«niiiiitii!i '^i
that she resided with her Imsliiin,!. ;,|„i thl^l
residence enntinued the same. 11, 1,1 (hit itl
•-' Vi^ct. e. (i, s 4, clearly rciiiove.l any „l,je,,i«l
(m tlie ground that slie "as ii,it a umv tn til
deed. MfXnI/i/ v. C/iiorli, 'j; (_). ]>, |();j *■
'■^■iiiiirktj
II. B.VR OR CoN'VEVAN( E OF DoWER .\XT) FoK-
FEITfKK.
1. Bi/ Reli'iine.
fa) Crr/ificdfi- of Bur of Doiivr.
[Bii Ihv 37 Oio. 111. r. 7, (C. S. U. C. r. ,V^,
M. .'), G, ) II jn'ruiiii t'litttliil ft) ilnii'i'r nihjht rcti-n.ii'
her riijht hij ili'i'ij, f.vii'iihil lillur nloiic or jnhithi
ir'tf/i til/it r jiir--<(iiix ; Iml to inithi- ■■iiii'h dii-il i-iTii-tual,
it limit hi iickiiiiirliihiiil liifiiri' tin: cliiif Jiistiri' or
oiii' at' till' Jiii/iiis III' till' (Jiiii-ii'.-f Bi'iir/i, or liifori'
till' (Jiiiirti-r Si'.iiioii.s, mill a ci'rlitiniti' of xiirh
exiiiiiiliiitiini irii.s rii/ii!rii/ to hi' i/u/ocW on the
ihiil. Uji J I'irt. r. It, thii iirhiifir'i'iliiini'nl iriix
iliKjii 11.111/ irlt/i irhi'iiinr t/ie iiiiirriiil iriniiiiii .slioiihl
join ir'itli liir /iii.ihiinif in mii/ ihiil roiitiiiiiiini u
rehii.-!,- iif (toirrr. Bi/ thf /trt'.ti-nt fh/inr Art, ■!.'
I'irt. r. 7, -I. ..'■>', (>., till' 11h.11 iiri' of' or inn/ iii/'or-
iiiiiliti/ ill till' iifkiioirfiifi/iiiiiif !■■) ri'iiihriil iiiiiiin-
firiof.]
Held, that on the pleadings set out in this case
it eoiilil not be lield, from the state of the record,
that the defeiiclant had given her C(msent before
a judge to be barred of her dower. Hii[finini v.
Axkln, '2 C. P. 4'_',3.
A certificate of bar of dower indorsed on a
deed, in KSSO, stating that the wife "being duly
examined," &c., did a^ijiear, &c., but not stating
that she was " (irivately" examined, &e. : — Held,
sutticient. BiiH- v. MrCiilliiiii, 1.1 C. T. IC.3.
The husband, wlio died before the 24 Vict. c.
40, having conveyed land in 1840, in the follow-
ing year his wife by deed, with his concurrence,
testilied by his execution thereof, released her
right of dower to T., through whom the tenant
claimed. There was no certificate of acknow-
ledgment before magistrates, &c. : — Held, that
such release was effectual, being within the letter
of 2 A'ict. c. (), a. .1, which is not conlined to
deeds by which the husband is conveying lands ;
and thai were thi.. otherwise, the action wtiuld
be barred by sec. 1!) of 24 Vict. c. 40, which is
not limited in its application by see. Hi. Hill et
vx. V. Greiimoood, 23 Q. B. 404.
Hunter 1: .lolinson, 14 C. p. \'2^
upon. Jh.
Where the riglit to dower is releaseil hv ml
instrument separate fmiii tlie conveyaiiec livtbij
husband, an examin.ition and eertilieate j^' s-l
necessary, as l)cfore the 1,-ite statute H,„
Patterson, 14 t'hy. CilM.
AVhcre after a IiusIkukI's e.^^tate liail l,eeii vi<g
by onler of the court in A., a pun'ha.ser, his Mii
executed a ileed to A., in whieli tlie liusl,,;i|
joined, containing a release of dower liv i.ir. 1
no wonls of rclea.se or coiiveyau,,' liv' tliu hul
band :— Hchl, sutliciciit, witlii'jiit exaiimmti,,
certilicatc. //< /'-,(/■,/ v. Sr,,//, •_> ( '1iv.i;Ikuii1i.
— Mowat.
(b) After Si'conil Mil n^'iii .
A woman under a second civerture oaiiinj
without her husl).iiiirs concurreiuv. release kfl
right to dower in lands of herlir-it liiisliaii,! ; m|
Qua'l-e. whether she could release tliis li-lit
a conveyance in accordaiiee ^^ itii tlie statiutsi^ij
enabling married women to alieii;itc tluii- rd
estate. An action was brought in the naiiifs
the husband and wife for dower in laiuls 1,1 kil
first husband. After action tlie wife exeoutcl
release to the defendant fif her rii.'lit. i\\\\ t\\
tained a <;erti!icatc of her exaiiiiiiatiuii ainl iniii
sent, according to .")0 ( ieo. 1 1 1, e. ID : llel,l, tluB
such release was no bar, beiii;.' witlnmt the oiiiJ
enrrence of the husliaml, and not lieiiii; aiMiiJ
veyaiice for any purpose conteiiiiilativj l,y tli|
difl'erent statutes for barriiii;- dower. Ilumii-'h,
U'ihon, 10 Q. K \m; afliniie,! in Mrir,'!
Squire, 13 Q. B. ,"),")0.
Action for <lower by S., and il. his wife, :
land of M."s former hiisliaiid. I'lea, a reli-a
under seal by S. of all ///'< interest in the laiul
Hehl, bad, as behig 110 bar to the actieii. iiiijj
mn v. Moiitijoimrii, 10 Q. B. .J'JS.
l)ower — Defendant iilcadeil that liv deed "Mil
21st of August, 1837, the husband ei,iiveyeiltlii
land to T. C , and that on the L'3rd of .\|iril. 1S.V
the demandant, by deed jointly exerute,l nitj
her husband, released her dower to T. ('.. wh'
conveyed to defendant : and on this issue «^j
joined. The release of the 23111 of A]inl. was!
deed poll of release of dower, tor a luuniii.il coa
sideration, executed by demaiulaiit hy markl
and the only subscribing witness Ijoiiii; tlieild
fendant, it had been decided that it cdiiKl i4
be proved by evidence of lii.s liamlwiiting : J^
Clark V. Stevenson, 22 Q. B. 575. The deienj
|U'3
1 iiliciiiitL' tlu'ir rtal
ilit in tlif ii:\nits
lUi.r in laiiiU ui lieq
tlie wife oxuoutol
f luT riuht. iiiil I'
:;nuiniitinii iiiul >:•>
\\.r. 10; Hfldtlljfl
withiiiit tlio miiJ
DOWER.
1 1 ;30
the action. L'M
lltliatliyik'filni'ili^
lisliaiiiK'onvcyoiltlu
L'Snlot Al'i'il. \^'^
iitlv L'xoi'nteil witlj
for a luiinuw
•il tliu exLH'utiim
therefiiro i)r<iveil tliu exei'iitum of the ; deed of tlie lauds to a pureliaser, in wliicli deed
■• {|,y -Jlst i>f AiigUHt, ISH", wliieli was \ a release of dower was eoutained : Ui'M, ,i;ood,
1)V tlie demandant, tiionyh slie was ; tiiouyh the jnirehaser was not named or shewn
cuti'il
mrtv to it, and it eontained no release ot
'r \tTrtirieateof two justiees was in<lor3ed,
"y.),„i ,,t March, 18")6, that the demandant
I r ' ..jretlliefore them, and <lnly barred her
6 ''r • anil t'ne of them proved that she was
.U,7A
(CV.
miey,
(Miimt-'
;ul sent 1
leil exeeiited the deed, ami received 810.
jjeiomhiit ' iieeii to her to sign a i)ai)er for T.
which she h:id signed ; and that the next
(lav sl.f ti'l'l defenilant .•she had no rights there.
Jhe i'lry fiHind for defendant. Drajier, C. .1.,
(mliteil wln'ther there was sullieieiit to^go to
iiee of the e.xeeutioli of
:li:it, Held -Morri.sou, J., eoneurring -that
Idtidi'lmt, lieing oliliged to I'esort in etleet to
icoiii'liry evidence, was hound to call the de-
Biiii'liiit". wh(i could have given the hest, not-
^itliitamliiig her ailvorse interest ; and that the
to have taken a freehold estate.
KiC. i'. iVi'J
After reeovery in ujeutment against the hus-
band by the iiurehaser at shcrill's sale of the
husband's estate in the land in ciuestion, ))ut
J,,,..,,,.,- before judgment entered, and wliile the husband
('., tlie grantee, jiroveil that she agreed to i ^^.jj, j„ actual possession, liis wife joined with
iir her dnwer, and that he took her to the , ]^„^ to release her dower in a eonvevance in feo
:jj,i,,,s f„r that purpise, but lindnig that the i „f tin, i,„„i^ i,y ^vay of bargain and sale, to' a
iritfeediiife' lit'f'"'^' ^'"-'"' ^*"''* metlectual, he hail j third party. No money consider.ition passed,
the release iif tlie -'Srd of Aj^nl, I S50, prepared, ! the grantee executing a "mortgage l)aek for the
it to her by defendant, with a note for ^.l,„Tu purchase money mentioned in the deed to
him, and the husband reinained in possession
t it the release was e.xeeuieu. oinerwi.se re- „,itil dispossessed by tile sherill" under liroeess in
■If,! : ami that T. C. brought back to hini the | the ejectment suit. The defendants, tiie tenants
rek-i8e''>l'l'"''-'"*^b'e>:eeuted, Imtiiottlienote. !„f the laud, claimed under the imivhaser at
his eviileiiee was received, (though objected to) jslmriU's sale ;— Held, tint the dennndant was
ttiifeto strengthen the prob.ibdity that the I ^.iititled to her dower in the land in ipiestion ;
lease wis really executed ; it being also sworn j f,,^ that the husband not having at tiiu time the
cHiitirmatioii that the demandant's name tu j t.j,tate he jjrofe.ssed to grant, nothing passed by
etelei-e w a'" by her Imsbiud : tliatni j 1,1,., deed, and tile release of the wife, as incident
avlHlliiwi' A' deinandaiit told witness tlwit to, fell with it, as there was nothing upon which
it could attach ; that it was not a cise within
the ii Vict. e. 40, s. I'.l : that though the bar-
gainee acipiired an estate as ag.iiiist the liusband,
and perhajis against tlie wife also, by estoppel,
. - .the defendants, being no [lartii'S to tlie deed,
jiirj- as evidence of the execution of the^re- j )j,,t claiming adversely to it, could not conclude
^' ~ * ' "'' the demaiulaut from saying she had not released
her dower to a purchaser. Miliary. Wih ii, 17
(!. V. .S(!8.
(^tua're, whether husband and wife can at law
convey the right of dower as a distinct subject
largaiu and lU'op'rty ; or whether slie herself
. , ^ . i.1 • Tj t. T I >""' 'h> so after his death, and before the assiitii-
b'mi.' irrelevant to ■
'ei.it must therefore be set aside. .Morrison, , ^^^
tli.iii'ilit the evidence objected to inadmissible I ,- ct. \ ■ ^ 4.\ i i t-
'"""-"^'•"^ J. Tj i. T I can do so after his death, and betoi\
the issue. Hagarty, ■)., i ^ c ■,. m ^ ii j.i ». ii ~i
s, ,,. ,1 ij.1 1 o .' , ' : inent of it. It so, Seinhle, that the remedy
nti'i hiililiu'' that the evidence was iiroierly i , ,,, i i i.i • • i- "'
mui, iiiimiii.-, \ ■ f , in should be pursued by the assignee in his own
ceiveilas tiinuiiig l>art ot the history ot 'lie I ^^ ^^^ ^^^ ■> "
loletraiisaetioii, and tending to shew why the I ',,■■,,,,. , ,
iioniinal consideration only, ! A husband by deed aliens land, and the wife,
though not named in the coinnieuceinent as a
formal party, in the body of it releases iierdowor,
and both execute it : — Held, a suliicieiit bar of
dower. Boiiti-r v. Xorfhru/,-, HO C. P. 7(i.
I Semble, that where a deed contains a covenant
I that a wife shall release her dower in considera-
tion of a settlement made in her favour by a
, deed of sepiratiou, and she dojs so. after recon-
ciliation and separation, at iiis inst nice, the deed
is thereby revived. M'\irtlinr v. Wvhljif itL, "21
C. L'. SoS.
Ill setting aside a ileed for fraud, at the in-
sam, asheshouhl think lit, and to execute ' stf">«« "f ^ judgment creditor, by a decree of
f such dower. On the •2-2nd of May he | the Court of Chancery, the proper form is to
Jeise.1, in her name, to defendants her dower i ii^oid the deed only as against the p irti 's injured
Itiie hiuls ill ipiestion, for a consideratimi '>.V the couveyauce, and direct a sale of the
fpresseilof .*4flf), hut M. swore that he agreed property. The court will imt simply set aside
:SHlK), anil that this was not paid uutd ^ the deed and aUow the judgment creditor to
The ijower was revoked on the L'.'ird of ' pi'octod and enforce his claim at law ; and where
(leaso w.as tnr a
dill a fiirm implying a previous conveyance
( t!if lee, wliich might otherwise have given]
i t« siisiiieioii ; and that defendant was not
m'ltiieall the demandant. Chirh- v. Sti-rcii-
i,i4Q. B.'JOO.
(c) Othir ("'((.set. I
I The demandant on the (ith March, 18(53, exe- '
■ted a iniwer of attorney to one M. to demand :
triliiwcriu all lands of her late husband, to •
Imrmiiid tor her claim, and to .accept such siiiii \
Vifii thereof, eitlicr by annual i>aymeiits or in !
py, and the jury found that the release had been
isiy exeenteil : -Held, that the power to
lease «as not eoiuHtioiial upon receiving a cash
turan arr.aiigenieiit for an annuity : that
;iliffereiiee hetweeii the sum meutioued in the
; and that received by !M. could not avoid
e ; and that the tenants therefore were
tied tisnececil. WilHiimn v. Thr Cniiniiix-
'11 Ik Cijimirti ?'"'«' Tnt.'il, 23 Q. B. 330.
ilea, that demandant during her liusb.and's
Kime ji)ined with him in a conveyance liy
the wife of the giantiu' joins in such a deed to
bar her dower, it should be avoided only so far
as it passes the estate and interest of the grantor,
the creditor not lieing entitled to the lieiielit of
sindi release of dower. Bitii/iof t'. C v. TfiDiimn,
2 E. & A. 502.
Quiere, in such a case, what is properly the
effect following from the release of dower, and
to whose benefit it will enure. Jh.
Where a married woman hail signed a deed
which, however, eoutained no bar of dower, the
i I
H\
i'\
11. 'H
St'i'ivtary refuse
wla'tlicr »Ik' iuti
tlinltj,'ll tliuiv w
iiiterustuil ill li;
relief winiid lie
l^liiiiiiji.ii'ii V. 7
Taylor, Sn'vitui
AVliere a wife
bivmrM e.st.'itens
she jKirts with
lieceM.saiy fur ti
sary jiarty t(i a.
free froiii dower
DOWER.
il to direct a reference to iiKjuire
iidud tliereliy to liar her dower,
elf infant defeiidaiitM who were
iving the dower harred. Sueh
jjroiierly the sulijeet of a liill.
'/iiiiii/isDii, '2 Chy. Cliaiul). '211.
joins ill a iiiort!,'age of her lius-
a Meeiirity only to the iiiortga;,'ee,
her dower mo far only as may be
lat ]PUi']pose, and she is a iieees-
MiiliHe(]Ueiit sale by the hiislmiid
, Fiirn .tt X. Jjiiiii'iirk, IS Chy. (ill.
and inaintenanec was intemlcil by tistatir i I
in lii'ii of ilower ;' and the dcinaii(|,iiit „.' .'
death liitherto, in lien of her ilowir |,;jt|, ' ^" '
to oeeiiiiy tlie rooms, ite., and il-'fiMnlant . i I
proviiled lier with all thin;;s re(juin,,| | . 1
will, whifh she elected to take and (li,| ,'1 ""*!
lieuof her(h)wer; Held, p)... 1... 1 ''* M
ing aease 111 wliieh ei|nity woniil iiuttii,.
to her election, liobr v. /lu/.rr, 'J."i i)
"2. />'// Elirtliiii.
(a) Acfi'jitiiiij JJi'i'lsi-.t III- liitincst.^.
Where a will expres-sly declares that what is
given to the widow is inteinlcd to be in lien of
dowel', and the widow aecejits it, she is as iiuich
bound by her election in a court of law as in
ecjuity. ' Walton v. /////. S (}. H. -^H^-J..
A widow cannot so far elect to take under a
devise as to enter into possession of the whole
lirojieity out of wliicli she claims dower, and yet
sue for her dower, when th.it was jiart of the
proiierty expressly dcviseil to her in lieu of
(lower. ///.
Held, th.at a jilca of election by demandant to
take under her husband's will was not sustained
upon the evidence set out in this case. I'lilki r
V. Eniii.-i, 13 (.}. IJ. 540.
J)ower. I'lea, on e(iuitable groumls, that the
husband devised to demandant half an acre of
land, after the decease of the husband's parents,
for her life, and all the rest of his real and perso-
nal estate to defendants in trust to support de-
mandant and testator's children, and .^l^ for her
mouri. ML', and 810 annually f ir clothing if she
should continue to live in tlie homestead, and if
not, then i^.'W a year in lieu of her dower : that
another previous will was revoked, and this will
made on the exjiress agreement by demandant
that she would accept tliese provisions in lieu of
dower : that after the death of the lui"band
demandant received from defendants, executors
under the will, the said sum of SI2 for niou ruing,
and continued to live on the land under the
■will for .six months, wlien she left of her own
accord : that defendants have been and are ready-
to carry out the provisions of the will in her
favour ; and so defendants say that the deman-
dant ought not in e(iuity to have dower, and
duly elected to accept the provisions of the
saiil will in lieu thereof : — Held, on demurrer,
no defence, for the acceptance of the §12 and
continuing on the land for six months was not
a sufficient election : that the words, " in lieu of
dower," ill the will applicil rather to the .*>30 ;
and the averment of election was stated only as
a conclusion from the previous facts. Coojii-r v.
WatsMi <t al., 23 Q. B. 345.
I'lea, on equitable grounds, that the husband
devised the land to defendant, in trust to main-
tain the demandant during her life in everything
necessary for her comfort, and allow her two
rooms in the house, and all the furniture, and
provide her with a horse, two cows, and a servant
girl ; or if she preferred it should give her £50
a year, payably quarterly : that such allowance
!"'"l'frty, i„lj
»:itisi'a,ti.
I'liiiii.lJ
i\'c 'Icuiainl
fl;iiv(l t(i lif
It Ml
»;inii. «-]|
lii'c : that 1
Dower- First plea, that dcin;,ii,l,iiifs h,,,! -,.
by his will gave her an annuity nt (.'•.'.l, ,1, ,.
able on his estate, .■iiid a life "estate" in V'
huid.s, .and thereby declared that sue!, ;,:;: 7
shoiilil he 111 hen or dower : th it ilci
entered into possession of siiiili
received the annuity, and electei
did take the same in lieu aiiil
her dower. ."Second plea, du winitalil,
that by said will the husband
an annuity of t'2."), which was iC ' "'"'"'"'"'I
lieu of dower, and was to be paid mit nil
estate by his executor, and hv tl
he devised certain land to licr t'
afterwards died, leaving, besides land, uvtmi
estate sufficient to pay thcannuitv : tli'atdtrn;
dant entered on said land, and elected td i-om
sai.l annuity and devises in lien of l„r A<m\
but before ;iiiy ](aynieiit of siicli aiimiitv Ir
fallen due, she. against the will of th,. exuut.
possessed herself of the iiersonal estate, ainl 01
verted the same to her own ii.sc ; ;ii;d the esic
tor having no other property nut (,t which
could pay such annuity, M'as tiierdiv \>\\\mt
from paying the same, as he woiiM „thi.r«-
have done pursuant to the will : Held, un j
murrer, both jileas good ; that tlie tii,t «■
clearly a good defence at law; and as tn tl
second, though the demandant's wnni.'fnl a
alone would not defeat her claim, vet then- «•,
besides an express averment that s'lie eiirtul
take the annuity and devises in lieu di ,i„vei
which was sutlicient withunt shcwiiij; the ivmi
of anv portion of the aiimiitv. "il'ii/m,./,
]rttliii--:Uif, 20 Q. 1!. 3!»2.
It apjieared on the trial that ileiiiaiidaiit'> liii^
band, who was a jiotter, devised tn caeh
children certain real est,-itc, and gave tn his «i]
an annuity of L'2.'i, to lie paid halt' yearly hvl
executor, and to be in lieu of dower, and ikvisj
to her curtain town lots for life. The imttrtvl
directed to be rented until liis sun .1. di.V
eimie of age, when all his estate not otiicnvil
devised was to lie divided anioiigst iiis ehiH
subject to the ;iiiiiuity. She was to have lirj
wood off the premises in i|iiestinn ; and his es|
cutors were to sell all his stock and larmin
utensils, &c. After the testator's death, in isti
the executor, who coiiseiitcil tu act at the (i|
mandant's urgent request, sold the steok. iJ
and handed tlie whole procecMls to her. SI
kept the jiottery until her son came ei ;,
collected the debts, and having inairit'd
months .after the testator's death, siie anil
second husband managed ajl the real fstato
received the rents. The aiiiuiity was iiefl
specifically paid to her, Imt the rents excccdJ
it : — Held, that there w.as sufficient eviiloncel
warrant a verdict for the tenant (inaiiieaj
election. WnliUHkij v. Walm^hn, -li) q. B. •-'141
To an action of dower defendant iiloaik'il, j
equitable grounds, that before the linsl ami
seised his father owned the land, and wwf^
DOWER.
1134
ii:ui.|;int,Miin,i,„
ilii\Vfi'li;itli,l,.,.^n
I'l <l>'ti'iiil;iiit 1141,
" l'l-'(,llilf,| l,v,[|J
Ni K.'iil, a.t iiiitsli,». I
'iilil imt tiiL'Hi,i,,fj
'/."■. -jr. fM'..+i\
iu;iMil:int's lnwl.;«[]
iiity -f e.'.-i, ,.h;,r.^.I
fc cstiitu ill ctrtiil
tliat Mich iiiiiiu;ijl
y ■■ tli:it iluiii n.^kJ
su.ili iimiitrty. ai,l|
•Ifc'tl^d tn t.lkf ;,ni|
ami » itisl:ii:tiiiii .
uiiiiitalilf ','Vimii,i
111 gavf >kiiiiiii,l,iiiU
as ilrcl;il\'il to
111' iiiiiil uiit (if lij
il liy tile saiiif «ij
iu'i- tor liiV' ; that 1
sides laml, iht-iiJ
iinuity : tliatilrtiiai
ml rU'i'ti'il til I'niii
I lieu III hi 1- (liiwt
if such annuity hj
will 111 thr ijxwiiM
.iiiial estate, ainl
, use ; aiiil the I'Snl
n'ty nut 111 whiili ]
is tllelvliy lireVillt«|
lie wimhl nthiivi'ii
! will ; Hell!, nil
: that the tiist «i(
law ; anil as tn thi
mlaiit's wrniiiiiul ad
elaiin, yet tlieivwj
t that she eleitiil I
ill lieu nf liiivtil
lewiug till' ivwia
itv. ir(i/m.<'n,
it ileiuaiii'laiit'? lini
sell tn eai'h "i 1
Hill gave til hiswil
1 halt' yearly hy 1
luwei', ami iltvia
ile. The imttiTvll
1 his sou ■'■ (■li"i
-tate lint iitliii'«i(
iiniigst his ehililrel
e was tn liiivi' lil^
lustimi ; anil lii*
stiiL-k ami t'iirmul
itnr's ileatli, iiib4(
eil tn aet at tile il«
snlil the stuck. -^
leei.'ils tn hel'' '
r snii eame el ;i
haviiii; niairii'il
s ileatii. she ami
,11 the real estato
annuity «as iu-T|
it the rents exrewl^
suiticieut eviilt
tenant imaifcij
efcmlant pleaiU'ib
■nre the Imsl mi'
B liuul, anil ciiiuejj
I j»,ti„.hiisliaiiil ill eniimdcrntioii of imtiinil iiffec-
■ " iiiil that tlio grantor iiiid liix witV ^Inuilil
I " "I'lV it I'i'i' 'I"'*' ''^''^" •'""' *'"^*' "' *'"' '*"''^'^"'' '■
tl"''t'tlie hiisliaml liiivHi'il it tn liis t'lither iiml um-
, inilii.' their jiiint lives ami the lit'eof tiio sur-
. •ii- wliieh wasmteiiiliMl tnr tlieir su|iiiiirt, ami
)r.'iiiiitliei'- lI'^' fO"'^ i^'"' '""1 ""^' "* *''•' tenants,
' iMniiiitlieV nieaiiH (if Miiinxirt : that afterwanls
i l!,*hiislian'lii*'vifi''l liis jieTsimal iimperty ami
11 his real e-tate to ileniamlant until his two
'Ins Hhiiahl eiiliic of age, on wliieli event lie
kviseil a linrtion to eaeli, siiKjeet to oertain
harL'es ill favour of liis wife, wliieh devise he
*■ ■' ■ ' liv hi-
• fliileil anil iiy ms will deelari'd to he in lieu of
'i" vtr • tii;if neither of the sons attained twenty-
^' tiiit after the death of her hushand the
iilK' : uiai '111^ . Ill-
I ,„,„„lant tnnk i.oss<es.sion ot, and had smee
j.iVdl. ill! 1'^''' hushand s real estate, and took
'li'the' lieisniiid e.state, and had used and dis-
l^iliif the .same for her own u,se : llehl, on
iuiuner, a had plea, for not aliening expressly
an doitii'i" liv the widow, Imt leavnig it to ho
inferrcil fmui the other statements. A'r///,o/(/.s v. i
/,V„„„/,/.s, 2!! g. H. •-'•-'.■). ^ ^ \
The uviik'iiee shewed that the testator died in
(leht ; that the e.xecutor deelined to prove the
wEtiiLiv heiiig no money to jiay jiroliate or
jm,^!i;,l i.xiieii.ses : that the widow sold some of
thtst'uk. linrses and eows, to suiijiort the family,
aniliitliiTS heeaiise there was no fodder to keep
thtiir. anil the furniture, &c., was sold hy the
tkriff mukr execution. The real estate oon-
jisttiliif tiirty-live aeres, without a house on it,
leasfl mi shares, and worth ahont 8S0 a year ;
aniliinlu'relainiiug dower live years hefore, the
pcM wiirkiiiLT it had agreed to pay her .':?r>0 a
ve.ir. wiiieli hail heen paid for one year ;~-Hold,
iiii'iviikiu'fiif an eleetioii to take under the will
inlifimtihiwer. //'•
Hijil. that the widow, under the devises
niditi.iiR'il in the will in this ease, was put to
tktwhuthershe would take under the will, or
claim her ilnwer. A'- /•/• v. Lii.-<lii,i<iii, 8 Ohy. 43").
.Uistatnr liy his will gave to his wife a life
iiilire>t ill eei'tain portions of his real estate, and
tsrlaiii annual allnwanees, both in money and
Ibiiil. siioli as tn exclude the prohahility that she |
tculil rciiuive any other moans for her suiiport.
Die wits ami prntits of the real estate after pay-
iBent nf suth annual allowanco lioing insuliioiout
to satisfy the willow's claim for dowor ; — Hold,
tkt-liv'was bnuud to elect. B<vkcr\. Hani-
\ml \i Chy. 48').
A testator devised to his wife all his real and
jpersmial jiniiiorty during widowhood, under
ihidi ,4u entoroil upon the real estate, and took
Uil applieil tn her own use the personal pro-
trty. The court restrained an action for dower
iMUght liy her and her second husl)and, holding
Itkt slic hail elected to take under the will.
V,^,mH V. Cud-crHiic, 13 Chy. 79.
Qurftc, whether a provision for the mainte-
(if testator's widow, charged on the real
tate, is hy implication in lieu of dower. McLen-
m\.Unmt, 15 Chy. U5.
A testator devised his fann to bis eldest son
I tail, iijioii condition, amongst other things,
lit lie should support the testator's widow dur-
■] her Hte ; that she should be mistress and
' the control ot the dwelliug-bouse on the
n, and should have the proceeds of one-half
the cows and sheep kept on the Jirelliises ; and
that tin; farm sliould be a home for the test.itor's
sou ,1., so loiig.is it niiglit 111' neeess;iry for him to
reiiiain, and for another sou, |)., should any mis-
fortune happen to him : Meld, that the w idow
was lint entitled to dowor in additiou to this
provision made for her. Mi'l.iiiiinii v. (irmit,
!."> Chy. (i.").
Where the ipiestioii as to w liether the widow
had elected to take an annuity in lieu of dower,
arose ill eonneetiou with adaiiiiof the defendant
for p.ist iiiaiiiteuaiiie and odueitioii of the plain-
tilt, and was ,i mere matter of infereiiie, depond-
iiig to a certain extent on the ;imoiiiit of inoiioys
the widow had received, the jioiut was reserved
until after the master had made his report.
Will 1,1.1/11/ V. Ilii/I, 1.-) Chy. -JIO.
Where ft testator by his will made )irovisioii
for his widow, but did not cniucss the same to
be in lieu of dower, evidence for the ]iuriiose
of shew ing that he inteuded it to bo in lion of
dower w.is held iiiadmissiblo. /'iiirirai/lK r v.
Ar,'l,lh,<l,l, l.-)Chy. •_>.-.-).
Where a testator by his will, after providing
for his widow, directed certain of his real estate
to be sold at the expiration of a lease thereof
then existing, and the iiroceeds to be divided
among his three daughters, and that in the
ineantime the rent was to bo di\ ided anioiig
them : Held, that this latter exiiression was
not inconsistent with her claim to dowcr. Ih.
\\\ intending purchaser of devised lands doubt-
ing whether a provision iiiado by testator was in
lieu of dowor, asked the widow whether shu
had or clainiod dower : Meld, that even if her
answer was in the negative, it all'ordod 110 ground
for the purchaserapplyingtii this court tori'strain
her action for dower, brought on her being ad-
vised that under the will she was not put to her
election. Ih.
Whore a testator dcvi.sed one parcel of land to
his wife ill lion of dower, and another parcel
without expressing that it was to bo in lieu of
(lower, and then devised his lomaining lands to
other parties, and the will contaiiiod other ovi-
deiico shewing an intention that such last men-
tioned devises should be free from dowor :- -
Held, that on the w idow electing to take dowor
she birfoitod both parcels of land. Sl< irarl v.
Hunter, 2 Chy. Chamb. 33(i, — Mowat.
A testator devised to his daughter for life a
house and four acres of land, and the will .shewed
that he contemplated that the dovisoo shouhl
reside on this property : Hold, that the testator
had thereby sulHeiently indicated his intention
to doviso free from the w idow's dowor ; and that
thoreforo the widow could not have dowor in
either this land or the other lands devised, with-
out foregoing the jirovisions in her favour in the
will. Itiifchin-ion v. Sdnji 11/, lli Chy. 78.
A testator by his will made certain gifts to
his widow, not saying they were in lieu of dower.
Jt was suggested that the estate was not sutli-
eient to answer those gifts in addition to the
(lower : — Held, that the other devisees were
entitled to an iiupiiry as to this, and the weight
to be attached to the circumstance would be con-
sidered after the result of the iiKpiiry was ascer-
tained. Lapi> v. Lapp, IG Chy. 15!>.
A testator at the time of making his will aiul
of his death had real estate to the value of .^7,000,
1 ■ ■M
I i ! ■ r-
■!(■■ \ • :'.
IIS.I
DOWER.
II3«
iiiiil iPiTsoiml Install' til tlie valiii' nt' fii.'lO.'i, wliicli
roiilt.y tci tlif iiiiiimiit of iilMHit !*.'?, S(),"i lie iliM(Hi.si'cl
of l)y liin will iliirin;,' IiIh wifuV litV ; and lie k't't
Ifgiicit'M tci tlu' .iiiiiiiiiit iif SM, 1(K). To liin wife
lie left :i life iiiten .-it in his lnuneMteail farm, and
a legacy of Jj^l.tHK). The other real uhtate he
(lireeteii to he sold. The reMidue he divided ;
hut there would he no residue if the widow was
to have her dower : Held, that the widow nmst
eleet hetwi.'en the jirovision made for her \>y the
will and her dower, /.ii/i/i v. /.ii/i/>, MK'hy. (108,
A testator ilevised his f.irm to his wiilow for
life, determinahle upon her marrying again, and
gave her a certain |Hiition of the dwidling house
thereon ; and .suhjeet to tiiis the will shewed
an intention that the rest of the house and the
farm should he kejit in entirety, and he perso- |
nally oeeupied hy his sons until the youngest
should attani twenty-one: Held, that the widow
must eleet. Held, also, that a seeoml marriage,
after having elected under the will, would not I
resuseit.ite the right to dower, ('tiliiiidii v. (I'lmi-
rlllr, ISChy. 41.'.
In such a ease the widow reraninud on tho
farm, and received some small sums of money
for her own use, hut had never had set apart
for her exclusive enjoyment the portion of the
house deviseil to her : -Held, that tiieseacts ilid
n<it amount to that deliheratt' and well considered
choice, made with a knowledge of rights and in
full view of conse(|uenees, which i.s necessary to
constitute an election. //».
A testator hy his will gave to his widow an
annuity of .'?4,(KH> in lieu of (h)wer. His will j
contained certain devises, and gave other legacies \
and annuities which the testator charged on the [
whole of his estate not hefore devised, and he
empowered his executors to sell any of his pro- i
perty whicli they should think necessary. The
widow elected to take the amiuity : Held, that
she was not entitled to dower out of any of the
testator's lands, whether devised or not. Held,
also, that the legacit s and annuities were payalile
prinnirily out of the [icrsonal estate. iJuctiUnu
v. BuoiiK'i; 18 C'hy. 47"), in appeiil.
A testator lie(|ueathed a sum of money to
his wife in lien of all dower, &c. , and revoked
"all gifts or <Ioeils or deed of gift of any real
estate made l)y nie at any time heretofore : " —
Held, that the widow was put to her election
wliether .she would accept the heijucst or retain
an estate conveyed to her by a deed of gift
(luring the lifetime of her Imsliand. Lee v.
McKiiihi, 18 Chy. 527.
A testator devised land to his children in tail
with cross reinaimlers, and in the event of their
dying without issue, to his brother ; and directed
his widow to receive the whole of the rents, &c.,
during Avidowhood ; and in the event of her
marrying she was to receive one-half thereof for
life : — Held, that the contingency of the widow
surviving all the children was too remote to put
her to eleet. Tranrs v. LIuMn, 20 Chy. 10().
A testator by liis will gave to his widow 100
acres of land, which he expressed should " he
my wife's portion during her natural life, " and
the balance of his real estate, fifty acres, he
directed to be sold, and until sold that the same
shoulil be rented, "and the rent shall be given
to my wife to jvssist her in keeping and support-
ing of herself and the children that may choose
to reside with her :" Held, that the wiil.n, ,
not entitled to her dower in the liity mr,., "I
also to the provision niaile for her \,\ tin' w'll
but that she was bound to elect. I/„m/,v
Aviiisln.tui, 21 Chy. XA. '*
A testator directed, lirst, that all |,i, ,y .
funeral and testamentary e.xpcnsis, s|ii,ii|i| | ,
paid; and then, that all his real ,ii'i.| iiirsi.iJ
estate, of every natiiri' and 'Icsi I'ipticn, ,<||„',,'u
be eipially divided between his \(ii,. ;iii,l',|„,,|
share and share alike: IMd, tint tiiu wi,l„''
was not i;ntitled to dowei' juiii to tlic 'mivi, *
made for her by the will; Imt tliat',!,,. "'''°
|iut to her election. Mfdrniui- \ ]/, ■(;,;,,, '.',
C'hy. 4.')0. '■•"
A testator devised all his real and iim^in]
estate to trustees, with full [lower nf Itx,;,,,
incumbering, and selling the same, as m tli™
oiiinion might be advi.sable, and at n nit,,,,
perioil to convey the same to liischiidixi,,,,-,.!,',!,!
then surviving. Hy a codicil Uv ,liiv,t,.,l „|i i,,,
personal property to be e.jually dividol liitHv,,,
his three ilaughters and his widow : iKl,|, ii|,(
the wi(hiw was, umler the ternis oi' the will '
Ixmnd to elect between the provi.siiiii fdrliuUi
the will and her th)wer. I'alri,-!; x.siian-,- A\
I'hy. I2;i. '•"
(b) Dthn- CiM,::,.
A wife caniuit be endoweil of land yivuii a„,ll
taken in exchange, but she has jier ckctiMii i,,
take one or the other. McLillim d »./. y. .)/,,,.
il'ilt, 7 (^ K o.")4 ; ly/ii/r V. /.(/,//,/, 2(', 1'. lsi;,|
Such election must lie ideaded by a jwrtv de-
fending in an action for dower. H'/k'. v /'
2f. P. 180.
As to the form of such a plea. See Ltii4\-
Dtiiiii-; 24 <,). r.. 12i).
""■J<
3. Bij Miirriiuji' .Si'ttkinnit.
Dower. Kipiitable plea, that liy dciil, iicjurel
and in consideration of demandant's iiiti-iuMl
marriage, it was agreed between Jier ami larin-f
tended husband that cert:iiii iaiid.-' slnmW Uj
conveyed by him after marriage t(i tn!stt.ij.t()j
his use for life, then to her use fur lite, thiiitiil
the use of the issue of the marriage, ainl imlcfaiiltl
of such issue to his heirs: tli:it alter tlici!i:iriia.'i
the hinds were accoi'dingly so convcyeil, ainl ile
mandant after her husband sdeatli liecaini'si'i/iill
and entered into pus.session of such laiidj mi.lfrj
the settlement in lieu and s:itislacti(iii uf lieff
dower in all his lands, accordii;g to saiil sittle-
ment : — Hehl, a bad ]ilea, foi- there was iin pro-j
vision, exiiress or imiilie<l, tiiat .sucli sfttieiuinM
was to be in lieu of dower ; and the alluLMtiuiiof
entry in lieu, thelaml being licniwii, (.duld iiia'i*
no (.litlerence. O'ilkiMin v. Kll'tntl. 27 'i*. li iCi.
By a marriage contr.ict exccutcil in L'nveis
Canada, the intended wife, in ciiii.sidcratinn i
certain provisions made therein fur lior sqaiati
benefit, agreed to renounce her dower in tk lamll
of her intended husliand, either 'V'ustumaryJ
prefix, or stiimlated," no nientimi lioing madf
of lands in Upper Canada :- Held, atiinuiiig tin
judgment of the Common I'luns, that this di|
not preclude her from claiming iluwor mit i
lands in Upper Canada, held hy her i.iijKini
during the coverture j and this notwithstandii
lliil
DOW Kit.
11. -S8
lliat liy lU't'il, lit!'
laiiilaut's iiittiulull
k'cii lior ami lar i
liii laiiil.-- slumlil Ui
'X in tnisU'is, tol
fur life, tliditol
,'!•, aiiiliiiiliMill
lit alter tliuiii;)rria;'(
iMiuVfyud, uml 'Ic-j
Ideatli liui'iiiiiesii/iil
1)1' siK'li laiiiU uiiitcrl
iatishK'tiiiii "i licrT
'dir.g til saiil stttle-:
|r tlicro was im I'ro-I
:it siK'li scttlouimM
liid tliu alli'g:itii'iio|
Ik r own, (.'iiuWi
I in ciiiisi'liTiitinu I
oiii for lior *c\<m\*
liciition ln'in;; mi^
Uclil, aliinuing
lliis iKitwitbstaml
I ,l,t. contrfti't HO ouUTcl int.. w.mM f..nn a tirnt
' on all tlu' iimiPiTty wliwh the hiisliaml
h 111 it the tinn^ of tin: I'oiitr.i.'t, or wliicli iiii>,'lit
1 .(•f..rwaril>'ai'i|uiivil liv him. VaiiKdiiolimt,
1: ,lwl ■''>'"'■ ■-■"• ^-- '"'■''"''' - '■•• ''^ •■^- -'-• '-
Ir'.'i'.W)!- I
4. /<// All (lit. ri/. I
\„ifu ahaniloiicd hy lit;r liiisliand, and Mili-
-..imMitlv «iiiltv of luliiltfi'y, H(dd. not liiirrcd
It iii the voluntary living apirt in adnltcry
tlnt'li'liiivL's a wile of dower, w licllu'r loavmy
,/.|„isl land's roof wmh wna siionti.', or in i'.imhi'-
iiU'iKfiif hiH vinU'neu, or wliL'tlu'r hi' aliandonod
I'ltiwllli'i'lt provision. \\'>ioI.m, // v. Fiiirli, •_'() ( '. 1'.
I'V' alliruit'l Ml .V'/v. Tliuiii/i'iiiii, '_'0 ( '. I'. -'1 1.
.',. Shitilli nf l.iiiiiliit'ioiis.
Ill,,;' I'ic/, i; /', I. .'.', ". 1 '"' I'l't'iDU iij' ilixri I
2,11 In 'lii-iiiKjIif lull irilliiii In: iilij i/iitr-i from I h
(Ml '/'/"' '"'■•''"""' ';'''"; '/•'iiiiiiiiitnt.
<IW' I'
m-nI'Milll "■"••< I'l'lltldll'll in ..'.f
Tlw
\'k-l. r
IS iii'ililii' lii'i' "'"•'' ''"' """"' '""''■'■ 4 "''"• ^ •'• <*
;' iiiniiiiiii: <!r""iii-', '-' Q. It- '/!-'/ ; MiVlrlluwl
\. |^(,,.l/^ ; '.'. a*- ■'/ •• ■'^trno„<iiii r. M,iiiii,<h,
,<(/./;'.■■»■■ 1
■||i„ii„l, the widow has liiHjn allowed to remain
ill |K..--fi"s.<ien for nearly twenty years from tile
hu'liiii'l's death, she must still sue for her dower
within the twenty vears after his death. J/<>
/),„,,(,/ v.. i/./«W/..s<,>. I'.. :{.s.s.
Ill il'ivvir ik'feiidant jile ideil that the right
[UTiaol mure than twenty yearn lietore the
Luini, t» wliieli the plainliir replied that the
,1(111(1 while seised, and during his marriage,
Ifimviilto II. M. <!eo. |\'., Iii.s heirs iind sue-
artam lamls, ineliiding those in
IccSMirs,
the
Jtrhritimi, of whieh he and his suecesscn's eou-
tiiiiiiil toii;iiit.s in liH' until twenty years liet'oiv
tliijs.iit : that forty years had not (dapsed siiiee
thilin-liiiitis death": and that H. .\l. tjneeii
Victwi;! anil her pivderessors had at .all times
Wiiiiiitiit the jurisdietion :- - Held, replieatioii
M aiiswm-, fur the exeeptions to the operation
oi tilt statute (V.. S. I'. ('. c. S8, s. 1,) iirise only
Mt 111 the pi lintill 's (losition, not defendant's.
Bt/ffi/v. /Vie SI. I'lili-ir/y.-! Ijili-rari/ Ansiiciiil'niii
i^'tkGtiifiJ Ottawa, •2;i Q. I'>. H!*"). '
QiHTo, a« to the oper.ation of '24 Viet. e. 40, s.
18, ami the utl'eet upon it of see. l(i. //'.
I I'ki, that the seisin of the Inisliand was a
Jeiiiu ill law, and that he was seised upwai'ds of
forty yi;ir.s liefnre this suit, and for ujiwards of
tkttiiiieliefure this suit the tenant, and those
Eilcrwhiiin he elainied, wen; in actual possus-
liiiii III tk' lands, elainiing title adversely to the
ksluiul ; -Held, no defenee, for tliongh ii dow-
lessiiiinie sense elaiuis thnuigh her husband,
jet the right claimed is one that first accrues,
sot to him, hut to her on Lis death. Leach v.
D(Mi.s24Q. B. lUi).
(!. Other Canes.
Where a father had conveyed a house aiid pre-
|inisestuhis8oniufoL',audtbesonafterward8leased
|tc his father ami mother for their joint lives, at
a nominal init, and on the sinn' d.iy the f.ither
.and motlnr exeeuted an agr.ement under seal to
the son, that he should oeeilpy the house, 4Xi'ept
eertain rooms, and t.die the rent.s and prolitH
upon celt, tin eonditiiiiis, on lireaeli of .uiy of
wliiili he was to go out of possession, Imt Ids
mother did not relisise lur right under the stat
nte : Semlde, tli.lt the mol her eollld imt, after
the fatlii r's death, on the ground tli.at slu: liail
not liarred liei- dower iindi r (lie life lea.te, niain-
t.aili ejeetinent for the whole of the premises,
without shewing a forfeitun' of the agreement
liy lire.aeh of the uiuditiolis, although she waH
entitled to reeover the roouis w liieli were ex-
eipted from the son's oei i[iilion under the
agreement. Dm d. /'.-'/• v. /',./•, 1 (,). II. 4'-'.
The demandant had aeeepled for Inr el.iim a
liond from the tenant, seeiiriug to her, as part of a
family ariangemeiit, a in.aiiilenani'e whieh, after
enjoying for some time, she lelinipiished. .Sjn-
h.id .also exiented the lioiid : 111 Id, that even
though the.reiitals in the hoiid did not operate
liy way of estoppel, a jiiiy were wair.inted in
hnding that it aniouuted to a satisfaelimi of her
claim to dower. 'I'l /•//"'<;/ v. Slniirt, 7 ' '• 1'. ,'!l(i.
A pica setting up a eoiiveyanee liy the hiis-
I land to the king: and tli.it the land .ifterwaids,
under the 7 \'iet. e. II, Ipiaame Vested in the
|iriiieipil ollieels of ordn.une, who conveyed to
the tenant: llehl, li.id on demui'icr, for that
deniandaiit's right was not extinguished liy the
conveyaiue to tlu- erowii, nor liy the pin\ isioiisof
the statute, /ir;//'// «/ ".'•. v. < :',},.i,,ii. 111 (^ ii. 4i-)!S.
Plea, that demandant from the "Jiid of No-
vemlier, IS.'iS, had lieeii teii.int of the premises
to deleiidanl under ;i demise, at the rent of tl.'"!
: a year, one-tliini of w liieli she was to ri t.iin, and
still docs retain, for lu'r dower, and the ileiiian-
d.uit acee[ited the same in lieu of lur dower;
and so the tenant averred that she as.sigiied to
demandant, and deniandaiit accepted her said
! dower. To support tlii.s ple:i, the follow iiig in-
strument was [lut in, signed liy the demandant
only, not under seal ; " I do liereliy attorn to
('. S. for (deseriliing the l.iiid,) and 1 agree to
\ liecome her tenant tlunefor at the yiarly rent.d
oi' t,'I.'> a year, with taxivs, payalde (iiuirterly
. from this date, one-third of wiiieh I am to ret.iiii
i as my dower, and the reiiiaiiiing two-thii'ds to
lie paid to ('. .S. diiiiiig her life. And in case a
1 higher rent can lie olitained for said premises, I
i agree to ijuit on receiving three month.s' notice
' previous to thccndof any i|U.irter :"— Held, that
1 the [dca was not provi'd, for the iiistrumont
jiassed no interest in the land to demandant, and
could not liar the right to dower, or lie treated as
a satisfaction of it. Siir.<ii( I'l v. Siir--'tii lil, 'I'l i).
A plea that demandant had been in possession
of the land in which dower was claimed since
her huslijind's death : H(dd, no liar, for this
could not deprive her of lier right to have dower
assigned, (lilkison v. KUiott, '2~ (^. 1?. !•.").
A widow having by her conduct ]iarted with
her right to eipiitable dower in favour of her
son, a subsequent creditor of hers was not en-
titled to have her dower set out and applied to
pay his demand, though she was not aware of
her right to dower at the time she was said to
have parted with it. Cvtlle v. Mcllurdy, J7
Chy. 342,
ill
• 'I I
li;u)
DOWKH.
I
it
NVIicic fur ten yc'irx a wifccoiicciilnl fnnii tlir
{iillilic hi'i' I'i'l.'itinii t<i liir IiiihIi.iiiiI, iiiiil allowi'il
liiii to livi' with iiii'illiir wuiiiiiii n^ IiIm wife
IliiiliT mi iiHHiiiiii'il II, mil', tile rciil \y'\U> living,' in
till' liri^rlilMiiirliMiiil, ami iciijs ill;; trulll tlli'lli iuT
(i«ii »ii|i|inif, it was lit'lil tliiit hlif WMH |irciliiiifil
flMlii I'laiiiiiii;,' ildWiT (lilt of hiliil |p|iiclmMfil
(InriiiH tiiiM iniioil in the liiiMliaiiil'M iisMiinii'il
liaiiic, mill iiftcru.inU Holil |jy liiiii ami IiIh hiiji-
^loHiil ttili' to a iMiirliaHiT, wlio liniiMJit in ^^oimI
tiiitli, ami uillioiit any iiotiro of the ii'al ri'iu-
tionHlii|i iif tlif |i:ntic.-i. //iiii/ V. Iliiriliiii, 17
Ciiy. .")!l!l.
•I. W . !>., a « iilivur, was lotatii' of tlii' rri>« n,
anil a;,'riril uitli Ium hoii, .1. II., to ax!<i;{n IiIh
intcri'.st in the lainl on lonilition of Iun mhi'h
making,' ocrtain p lyimnts, ami |mi foiiiiiii;.' iiitain
Bi'ivici'M lor the latin r, u hirli \m ic at! iliily niailc
anil liriliiriiiiil ; niiil uftriwarils the liatilit «as
iHsiifil in tile naiiic of ,1. jl., liy wliich nanii' llic
I'litlior waH kiiouii lo tln^ olliiivx of tlio laiiil
^rantiii;; ill liaitiiiiiit. Mianwliilc, liffmc tlii'
ISHuin;; of till' iiatriit, the tatliiT niiiniiil a;,'aiii.
■'I'lii' son. i|iiriii;L! all till' fathi'i'n lift', roiitiniuil
til orrii|iy the iniiiiisuH, iiiakin;; valiialili' ini-
IirovfiiicntH, without any claim liy tlir fallicr
uxofjit for lii« K\;]'|Mirt iimlcr tlio a;,'rri'nu'iit
inaiU' licfMccn tlic latliiT ami son. .Afti r tlif
fatliir'siKatli. till' willow liliil a liill fur iluwcr
in till' |irrniises, Imt tlif loiirt lulil, that I'vi'ii
ililniittiii;; that till' -rant of the laiiil was to, ami
was |jy till' ;;ox iriinii lit liicaiit to lie to, tlu'
fatliur, that lu'i'oiilil lu' trratnl only as a tiiisti't'
for the son, ami ilisniissul tlu' lull wit-li I'o.stit.
Jiiirii.i V. /!"ni--; •_'! ( 'li\-. 7-
III. Kxril.VMii: III- l,\M'S.
A w iff t'aniiot ho I'liilowiil of lainl givni ami
taken ill i'\i'haii;,'i', Imt •.lii' has her eleetimi to
lia\e one or the other. Mfl.ilh'ii it ii.i-. \. Mn/
iliitl, 7 ".'• H. .■..■i4 : WliUi V. L,ri,i,i, -J ( '. I', isii.
Uower. I'lea, that the liusli.iiul exehanyeil
other lamls with one V. for the laiiils in qiies-
tion, anil that the ileniamhvnt eleeteil tu le
eiiiloweil of sueli other lamls. 'I'o )irove this
exeli.inge. ;in oi'iliiiary ileeil of liar^'ain ami .sale
(if the other laiiils was Jiroiliieeil. exieuteil liy
(-leiiiaml.-iiit's hiishaml, for an expiesseil eonsiiler-
atioii of L'(i(H); aiiil it was shewn elearly liy
liarol e\iilenee tli.it the traiisaetion lietweuli F.
ami the husliaml was in faet an exehanyo :
Helil, that sueli eviilenee eoiihl not avail : that
the exehanye must ln! proveil in jimiier teehiiieal
form, ;iml liy ileeil : ami that the ileiiiamlant
was tlurefore eiititleil to sneeeeil. Tmrsli ii v.
Siiiilh, VI (,). Ii. .VV).
Where the ilefeiiee in ilowir lesteil U|ioli an
Jillegeil exehaiige liy the huslianil for other l;uiils
out of wliieh the « iilow hail lieeii satislieil her
(lower, ami no ileeils were iiroilueeil, ami the only
eviilenee for the ilelenee eonsisleil of jiaiol state-
ments that the lutsliaml hail " trailed" eertain
lamls; J{elil, not siitlieient eviilenee to warrant
a veriliet for defumlaiit. StuiJovd v. Trni inati,
7 C. r. 41.
Plea, that during the marriage, the liiisliaiid
agreed with one I), to exehango the lands in
(juestiou with other laiid», and in imrsuauee
thereof, they ])y deeds "conveyed" the lands
to eaeli other, D.'s wife barring her dower : that
the demandant afterwards elected to take her
iliiVM'r in the other Imnl. .md liy ilcc,] r,,|,
(lie Maine to one ('. : lleld, pf,.,, |m| ^^^
shewing strii'tly an "exi'liaiiKe" ut' tlir h,j'
for the Wold i;, Ill-Ill has not H,,. «,.,„„. .,j ■
I ^ 1.1 ii.: ..1 , ". '"'Tt;
uiiil, seinlile, 11(1 other Ntord ran
l.iiirli v. IhiinU, '1\ il II. I'.MI.
"■ 'lllwtltlllftl,
IV. .\sst(iSMK\T (H IliiUii
lleld, til it Upon the e\ ideure j|, f||j, ,.,
jiii'v were jiistilii'il in timling tint tlii-Xl,!^ '
had assigned dower liefore artimi //„„ i
\. Iliirli'ii, Hi (>l. 11. ".I I. "'"'"'
.\ riL^lll to dower, ,lItlloll;,'| t ;,„ ,„,.|,^
an interest in land w itliin ( '. s. I'. ( ■. ,.. ikJ. ')
therefore, Seinlile, that iimlei that Ktiitnt,!"
Hum III may lielore a.ssignimiit of ilinvir\„ii'( !
her riyht to any person. .l/,7/, ,■ v. 11;/,,, in,.
r. .")•_'!». Hut see MrAiiiHiiiii V, 7'„,''„/,v;' 1,
IChy.L'llH, infra. '"
.\n assignment of dower hy tin- ..lu.HiV iin„,i
lie liy metes and lioumN. Wlnr.' tHn l,!i,l
Iroiiteil on a river, ami were tlierefi.tv invi,4J
ill shape, and the .slinilV nssi;;m.,| tlip e;i,t flnrjj
of one ;inil the west third of the ntjiei', i,
no siii-vev and giving iiu further ilev,.vj|',i|,
assignment « IS held insutliririit. F:./i'i\ (, ,■
'IS (,». I!. Wll. '"'
Hut neither livery of seisin iicir writih
neress.ary to an assignment ; .'iiiil wlirre t!i'
ant of the freehold, after siu'li :i.->i;..|iiiu.|||, ;_,,„.'J
liotiee to deiii.inilaiit to make lirr «li,uv nrty
fenee lietween these portions wlui'li li;ii||it.(.J
nssigneil liv the sherilV as hi r il.iwcr in tin- «:ii,
lots and the ih'femlant's )Mirtii'ii : lli'M, tiui
this Mils evidem f an assent hy liim t',i tliJ
assignment .as mailr. wlneh was tlieicluiv >iiiijJ
eient. ///. i
.\ widow's title to dower liel'iil'e lissij;iiliiiiitJ
altliough not transfi rralile at eiiiiiiiniii l.iw, nuJ
he the sulijeet of sale and eiiliveyaiice ilU''|liitvJ
/I'l^i \. Shiiiii: rmiiii, ."I ( 'hy. ."i!)s!
.\ widow havingni'ivried. slieaml her liii.luini
vi'i'lially ;igreeil with the devi.'^ee.s cf lur lirsli
huslianil, that she and Inr husliiiinl >liiin|i| (iijni
a eert liii portion of the estate iliirin- lu-r lii'i', ia
resjieet of lierinterest therein ; lleM. th.ittliij
was liiiiiliiig on .'ill parties interestLil, a.«ln'iiL':ii
jigreenieiit not within the .St itiite et Frwlsl
and the eoiirt restrained a |iin'eliaser ef imrtion
of the estate from disriirliing tlie (liiHi-t',s,< an^
her luisli.iml during her liU'linie. I.mfh \\
Sliiiir, S t 'hy. 4'.(4.
[.See next suli-lieail.|
V. Sai.k ok fXDi'it E\i:i iTiiiSs.
A right to dower is not .salalile uinlfr vxi n<
tioii against the lands of a dowrcs.s. Till ilmvei
is assigned she has no estate in tlie hiii'l. iiol
even a right of entry ; neitlur ilnes Iut iiitifi^
come witliin the meaning of the wnnis. liiil
S. U. V. c.DO, s. .'), ) "a eontingi'iit. iire\i.i'iit"T
or a future interest, or a pn.ssiljility I'luifli
with an interest." MrAniinmi v. Tiini'mll,
t'hy. -298.
The Court of Chancery has jiirisiliction in j
suit, as well as on a petition, to ilecree ii sal
an inchoate right of (lower. Camin: '''"*.'/. 1|
Chy. 3!)0. '
1141
|K)\VKK.
inj
(iiivi'vaiu'i-' 111 f'|UityJ
>t ituti' lit FlMUilsl
lliiircliasi'i- iif iiiiitii'iii
iliililo iimki' tXi-'iil
tlu' wiinls. 'in
,.,. iiiiliiiatr ii«lit "I Ik in.iiiiril wiiiiiaii tn liMHnl liy u ri'iTivir In .i Mint in this i mirt ; -
j, ,|,,t Kiililil"' miili'i' cMMiitiiiii iig.iiiiHt llflil, til it >\if w.is nut ,it lilinty tn |iiiMCfil in
l//i»i V ''" {■^ili'i^>iii'il/i I'ij'i' AnHiiniiui , M\ih lutiuii witlnmt tli,' Iciivii nt tliu ciiurt.
'"'' I'lrliv.-;' Vohitiiiii V. Ulniiiilli, IS<'liy. 4'-'.
\ I \i ilii ^N'li SlM'ls Rtll.
1. Willi li. 'Ill I" hij'i iiiiiiiiti.
s niliK' '•'"' w'" '"' ''"' ^'^'''l''"'*' "'' '«■'* ^''i'f
I ,he't.n:ititHi'>^"' ■•"■''"" "> ;i';"-;\<";.'l'l I'^vr
nliL-UOil illi«''''. «!'"'' """''' '"• '".'"'",'- "I"'"
1 ilviM, till' iliniand.iiits ai'i' (ntltii'ii to hiii^
T'liiiiii till' isxiif iif lion Icniiii'iinl, witliniit
"" r.. ..iviiii' til tlif t'liiniianitivi' v'""!"'''*'* ">'
;'l''-tini''>'^ !'"'•• Mcrl,■lhi,>,l„..■.^■. M..,:,nl>,l
\V C.iliuilHfixi'il ill ft't'i'f Hk' lii'iil ill t|Ui.'i!itiiiii,
, ji'„,'l,vimil till' Hiiiiii! to liis will' I'm- lift', hihI
VrHcrilriitli. t" liif* """ *,'"' ')''ii''"i'''ii''''' li"'''-
" 'l ill I,.,.. 'I'lu' li statnr's willow, the ilrvixfU
|',''"|ili' ilii'il I'l''"'''' ''"' 'l''>ll'""l:"it'« llllsllllllll,
' 1 Im'iriLi lift' lili' 111'* illtiMi'st wr.s solil imdri'
imiiiiiMt liiiiil^*. ini'l ''onvfyuil til OIK' .1.
, li, 111.
Molll to tllO
.'■
Tiiv r.n II ^■i<•t•
;,tilt:|*Nilli* I
iilil, liiit tilt' nioi't-
lb,i liiivilij! rt'i'ovi'lril |iossrssioii
.,„,,„,, «!„, iiiiiit;,';i.i;v«l I'iii'k nyiiiii to .1,, |,nt
,,,llflilK'l i" 1""<«''-'"'"- 't »;IH not hIu'WII
,|„thirali tiK' i"i'"t,i!"K»""""L'.v "••"' '"•''!' I''>"1
„f„,it; liiit till' tiiiii' for imyiiii'iit of Hcvciiil of
the iiiJuliiiiiit'* liiil not iiniviil 1 Hiil, tli;it
thdiliWii'^"' ''""''' ""'^ ttiiiii'iMil. for t lit' tenant
TO nut ti'iiiitit of the
t'ldiiiiiiiiii y. All/
18, niiiilc no i'liiinj,'i! in
hiMi' to nil ai'tioii of (Inwor. IliwrU
\'.'sMt>'iu 17 (i- H. .V-'O.
Inaitiiiii fi'V il'iwei' in tliri'i' lots of laml, to
pMVttli;itili'fi'i"liiiif WHMti'iiant of tlio fi'i'diolil,
l«itiifMist;iti'il tliiit 111' liail ocoiiliioil onr of tlii'
lots lis ti'ii;iiit til (iLfriiilant, ami alimit ti'ii yoarn
MHiillVl'Vfil all llliri' lotH to omi II.. wllii.swol'l-
to Ik I'luivi'Vi^il to ili'fi'iiilaiit after liavinj,'
111 iiMiwiicr, iiiiil Imilt ii|ioii tilt' 1. mil. A
certiliiil I'l'liy <if tlif iiR'iiiorial of this ileivl was
put ill, iiiitii'i' til piiiiiiico liaviiij,' lieon j,'ivuii to
liiuiiibiit: Helil, siillieioilt eviileiiee to yo to
lav jury. FUn- v. Ilar/n, •_'.'{ g. I!. 408.
lldii, tliat thu (lefeiitlaiits, c.vecutors uiiiler
tht Mill iif N. S., ilivi.sing "all and every the
liiMsiu"i'.'' :iiiil tfiieiiieiitM whatsoi^ver, whereof
wnliiuni 1 li:ive or am entitled to any estate
4 I'lvdii'M nr iiilieritanee, liy virtue of any
toirti;;ijit' nr iiKirtgayes, unto and to the use of
my fxwiitiirs (tliL' ilefeiidaiits) to the intent."
ii., tiiiik ^Ul;ll !Ui estate as to make tlieiii lialile
■ an iiction foriluwcr. I.inr v. S/mr/cs <■/ nl., 14
P. '2.1.
Stmtilf, miller ('. S. V. C. c. '28. tlio tenant of
Itte iriLlmlil tan ho sued only when within the
siliitimi , if nut of it, then a mere oeeuiiier
lay \k siiiil, Imt a recovery against him will
Kit biiiil the right of the tenant of the freehold.
fhiijwUoiirldii, '27 Q. B- 178.
Tualiill for etiuitable dower, the tenant in
Ictual jKiiisession nf the premises may be a pro-
Jtr, tliiiugh not a necessary party. Mc/ntoifi v.
\\\'ml, 1,-) Chy. 92.
A willow entitled to dower eommenced an
tion therefor against a tenant to whom, with
Hpresa authority, the property hail been
•2. /'/,,(,/;„;/.
.\m to till' jiha of alien he .'tiid the form of the
reiitii'ation thereto. See llnliiint \ . I.i ii'ii, |)ra.44.
Wliere a plea ritates that the husband de\ ist'd
eertain lands to the ileiiiaiid.'int in bar ami s.itis-
faetioli of iliiwer, and th.it she agreed to llie
devise, it is sllllieient '.vitliollt setting out the
Words of the iKvise. Aliter, where the devise
is not ill ex|ir,ss terms in bi,- oi dower. Ilind-
<iiriilii< V. Kiiiii, 4 (). S. 180
.■\ plea of lion tenure is l ot lieeessarils a plea
in abaleiiii'iit, and it may be iileadi d either to
piirt or the whole of the lands diiiiamled. I li.
Noll tenure to the whole r.imiiit lie pleaded
with other pie is in bar. Xu/mi v. /,'iiil. I I'. I!.
'2(i(i. I'. ('. Ihaper.
.\ wife laiimit be emlowed of land given and
taken in e\eliangi', but she li is her ehetion to
t.iUe one or the other, Mfl.illiiii li (m-. \, Mnj-
<liii/, 7 (,t. I!, .'i.'il ; \\'li!lr\. /.iiiiiij, -2 ('. r. IS(I. '
And siiih eleetiiiii must be pleaded by a party
di'feiidiiig in an aetion for dower. H'/c'/. \.
/.iiiiiii, •>{'. I', use.
As to the form of siirli ,1 plea. See A' '■''/( v.
DiiiiHs, -21 i). I!. I'2'.t.
j A denial of the Heisin and marriage were al-
lowi'd together, but .'i tliinl pha, tli it di iiian-
dant had assigned her right, was striiek out.
SIriif V. hiiUii, '2 v. \[.:m;. C l,. Chaml). -
IJiiriis.
'The tenant plcided a relereiue to arbitratoi's
; and an assignment by them of certain speeilied
I land, of which dciii iml ml had notice, and aver-
I red that he iiad always been and .still was ready
to abide liy such assigioneiit : Held, on demur-
rer, plea bad, for not shewing that the assign-
ment had been actually uiaih . Mi'L'nii v. Ilm"
I litii, !) {}. IS. (IS,").
i IJeplieation to a ple;v of lie iinipies aeeonple,
that the deinandaiit, on the 1st of May, I70O,
, and beliii'e suit, was aecim]ilcd to \. 15. deceased,
in lawful matrinioiiy : IKld. good, without
alleging when, or liy whom, or liy what form
; of religious rite the demandant was married.
WiU'iiiiiix V. Lii\ (iiiil Williiiiii--' v. Viiii.tiliiirl, '1
( '. I'. 17.').
As to the form of replication to a plea of the
Statute of Limitations, and to a plea of ne un-
(|ues sei/ie, and the proper eonelnsion of such
pleas. //;.
AVhcro in dower, after declaration filed and
notice to jilead served upon infant tenants,
the latter neglect to plead, an order nisi may be
made that unless the infants plead within a given
time the deuianilant may assign John Doe for
their guardian ; which order nisi afterwards,
upon an attidavit of service and atHdavit that no
plea tiletl, will be made absolute, liobhimn v.
BliimUharil ct ul., 9 L. J. 23.— C. L. Chamb.—
Draper.
Defendant having allowed judgment to go by
default, the court, under the circumstauces of
i
ii'
im
11 43
DOWER.
uu
tliis case, refused to allow him to i)lea<l a release
liy (leiiiniiilaiit, or a denial that the hus]>and
died seized as alleged in the plaint : — Held,
however, tliat such alleijation was not admitted
by defendant not pleading, for it was an aver-
ment not material to the right of action, and
must l)e jiroveil if requireil to establish a claim
to damages. Soraffk v. Jdrhoit, 25 (.}. B. 5!)8.
Seinble, uu<ler ('. S. U. V. e. 28, that aver-
ments of the service of demand, and that the
husliand died seized, should not be inserted in
the declaration, hut suggested afterwards ; and
being irrelevant to the right of action, if so
alleged, they are not admitted l)y not being
traversed. ".V. f '. 2<) (). li. 18!).
I'ower. I'lea, tint demandant never was ac-
coupled to the luisb:iuil during the time he was
seized of the said l.md : -Held, that the jdca
admitted the seisin, and denied the coverture
only. Loxfi' v. Miirrni/, 24 i). B. r>8(i.
'J'lie jtrovisions of the ('. L. I'. Act as to plead-
ing double, ajiplies to actions of dower. S/rnf
\.'lh,l^„n, -1 L. .]. -.'OS. (J. L. Chamb.— Burns.
|)ower. I'lea, on eijuitable grounds, that the
laud w.is |i:irt of the partnership jiroperty and
stock in trade of the husband and S., trading
together as merehiuts, and «as purehised by
them MS sUL'h partneis, and p:ii(l for out of their
partnershii) moneys, and used in the said part-
iiershi|i liusiness, and thit the husband was
never seized thereot, otherwise tlian as sueli
p:ut:ier : -Ib'ld, that the (ilea sullieiently shewed
the land to have been purchased fi r jiartnership
])Urposes, and formed a good defence. — Cum/ir
V. /'htf, 2r. g. B. 277.
In a liill for dower, the )daintiil' alleged that
her Imsbimd w;is in ills lifetime, at the time of
his death, and also at tlie time of miking his
last will, .ii-i.-iii/ iir mlillcil in fee in possessi(ui ;
anil in another pirt of the bill, tiiat the luisband
had in his lifetime eontrai'ti'd for the sale of the
premises, out of which tin? dower was sought : -
Held, bad, on deunirrer, it nowhere ajipearing
that the husliand had been seised during cover-
ture, or that the contract of sale had not lieen
entered into before niarri ige. Hordon v. (j'orduii,
10 Chy. 4()(5.
(a) Wrlt.f.
The form of writ of summons to commence
an action of dower, is now provideil for by 32
Vict. e. 7, s. 4, (). For decisions as to the writ
and proceedings eon neeteil therewith, under the
old practice, see /'/iclun v. I'hchm, Dra. 38G ;
J'Viizcr )'/ ii.v. v. /t'lcliiirifMtii, 4 (). S.-SiH ; /iixsotitl
ft ux. V. RtuhidiiirM, M. T. 1 Viet., H. & H. Dig.
170 ; FhIIiiui- ct nx. v. Doni/un, 1 Q. B. 402.
lu dower, the sunmions, if served on the
tenant, need not be served on the premises.
lluiisburtjh V. Fritz, 5 O. S. 73.
A writ of assignment of dower is a writ of
execution, within see. 249 of the C. L. P. Act,
and may therefore be tested when issued.
Fkher v. Grace, 28 Q. B. 312.
If an infant be tenant, the i)arol i, i,, . .,|i , ,
to dennir. /'/.
It is irregular in dower to style tk ,«,,.,«
<lenuindant and rcuptmilriil^ and attidavit,,
intituled cannot be read. FiriiiiMin v 1/ ,/ "
1 Q. B. 510. ' ' *'
As to the practice and pleadiii:.'.s in ,l„«>r
un.ler 13 & 14 Vict. c. 5.S, .sec /)';./,„,„■;,■;■ V
Pmr,;; 12 Q. B. 30() ; Willinn ■ ' '
K. 41.
Jiidn;
(b) Other Cfutes.
An infant demandant may sue for dower.
Phelan v. Phelan, Dra. 386.
Particulars of the premises canuct ln.„lit!iii,e,|
by the tenant. Xnlan v. ('hirni | p p .i—
P. (J. -Draper. • " -i,.-
In an action of dower, .j\idiriii.-iit w.is .'iva
in favour of the tenant in .lune, l,S."iii |t
August, the tenant died, and the entry <>{ \\\.\.,
ment was delayed by the ilitlicnltv iii'iinuninir
the afiidavitof disbursements, ,i;i:. The dim in'
daut brought another action against tliu kir<„t
the tenant for dower in the same lainl, m,,, j,
April, 1857, an application was made tii ;iil..it
the judgment given in .lune to be oiitorod nimo
pro tune: - Held, too late. Slutlunl v. Trihrn.,,
2 P. R. 154; 3L. J. 114. (1. L ( 'Imnili. -IIA
inson.
Qua>re, as to the right to sign imlniiifiit KtI
default on a suggestion of ili;niand ami ilIu,>jI
of dower. I'mlcr 24 Vict. c. 40, c. IS, a ii'.riiJ
of action was necessary in all eases, hut tliuw.iiiJ
of it nuist be speciallv ple:i>lud. 117,;/, v. */,'i,„J
sliaur, 23 Q. B. 75.
The ])laiutirt'iu dower ha' ingsemcd a diinimll
on dcfen<lant, the tenant v.. the freili(dd rusidiuJ
in Scotland, served the d ■eLirathm and iidtirtl
to plcid on the tenants in possession ui tliel
land, and on this entered juilgnient hy nil ilnitl
against the defendant for seisin and nists ,iiul|
issued execution. The sherilt' <leliven'il \n
sion according to the reiiiii-t of the ciiinnii,-i>hiiiiTs|
appointed, under 24 Vict. e. 40 ; and their Itcsj
including the charge of the surveynr i iii|!!i,yuli
by them, aniounte.l to S-JiMi. .\n cmhr kmI
atterwanls made to refer this charge t,i tiixiti"ii,l
on a sunnnons e illing on the sluiilt' ;uid tliel
connuissioners and sui'veynr, Imt not on tiiel
jdaiutitt: ---Hehl, that the judgment was invi;«-r
hir, and must be set aside ; for service nf tliej
ileelaration on the tenants of the land enuM luitl
enure as a ser\-ice on the ciefendant, tho fiiKintJ
of the freehohl. O'linrlic/ v. (luiirliii/, i' y.|
B. 178.
Qua're, as to the <lel'eiid:iiit"s light tn
judgment by default for the costs ; lint assuiningi
sucli judgment to be valiii : field, that
costs of the commissioners, under 21 Vict. o. -10,1
would be reeoveralde against detendant. Hiiil,!
also, that the order to refer such costs cmildl
not be sustained, for defendant should have
been a party to the sunnnons. //<.
For other cases under t!ie practice Iwfnrc 131
& 14 Viet. c. 58, see Ruhlii,/ v. /.,('■;«, Dra. Uf
Henderson v. Ste/ilieii-i, 2 \). B. (it ; Amhi U
WoodeorH; 2 Q. B. 1 10 ; (/„.,■ v . lid ml, 4 (,'. B. i^
The plaintiff claimed dower. A ilecree wa
made less extensive than she elaiua'd. Ihi
master made his report in pursuance of th<
decree. The solicitor on the same day sigueil
consent to a decree on fuither <lirectioii9 htin|
made iu certain terms stated in the cimseiitj
These terms were in accordance with the decn
iiu
prill is Hut i,ll„,,,i
1 stylt-' tlif ]]iirtiti
ami (itli.lavits s„
ntii.11111 V. Mill
landings ill iliiwer,
!'(//'■< V. Il[,l,,\ 1 1'.
(Miimit luMibtiiimi
"•'■,'/, 1 i'. 1!.-j::.-
iiluiiK'iit \v,is jiivei I
• luiK-', IH.'il). In I
I the fiitiy iif jii.li;.
lit'ulty ill iiriifuriiij |
s, i*cc'. Tilt' ilfiiKin-
against Ww licirs f,i
; i'linn; liiiiil, iiiniin j
was iiKuK' t(i allii»l
til 111' uiitiTuil iiiincl
•Hdiriifil V. Tni' Willi, j
.).'!.. Cliaiil.. -I
) sign iiiilgiiK'ht Iffl
iliMiiiuul :iiiil rtfiisij
c. -10, c. Is, a nntioel
Ic.isus, Imt tbuw.iutj
uil. H'liilf V. dr'ii
ing>it;r\(;'l a ikiiiMill
till' trL'tliiilil resjiliuijl
•lnati.iu ami luitirtl
n iiiisscssioii III the]
uilgniunt liy nil il'.iil
\,'S\M\\ anil L'lists ,mil|
H' ilt'livoriil ]iii,<>L'!-r
till' ^■lMIMllis^illllt•r3j
1(1 ; ami their itcs,!
urvi'Niir i:iiiii!iiyiilj
An iirilcr wmI
cliargL'tii tiixitii'ii,!
lu slK'i'iir ami tliel
lint mit nil tliel
gnii.'iit was imcii-l
till- sri'vicc (it tliel
tlu' laml (.'iiiiM iititl
'iiilant, tlie ti'ii;mt|
■. doiii-l'tt), '27 ^
nit's liylit t(i smt
i>ts : liiitassiuiiiiig
lli'M, that tliel
,„lL'i-'JtVict..'.40,r
_. (li'tLmlaiit. Hi'lil,!
■r snoli I'lists i."iilil
iiilaut slmulil hav»j
iirat'ticL' liofiirc 131
V. Aiin-s Dm. 44|
V>. (14; -Iwn'v.r
'.//i-m/, 4y.l!.'-"iH
or. A ileiTtY «m|
ilR' I'lainieil.
jinrsiianue of thd
J same day sigutil
lior ilirectioiis hcui^
e,l in the. cunsei*
ncti with the ilocn
1115
DOWER.
lUG
1 , 1 ri'liiirt- ''"".V I'roviik'il, also, that in lieu of
r'ln'werthciilaintiti'sliiinld liu iiaiilucertiiin aiinual
Himiianit'il. The dt'creu was not drawn np, Imt
I . [ ,/Ti.;.iiifnt whicli it eniliodiiMl was acted on
1 1 ir ei 'ht yars : Jluld, tliat tlie plaiutiti was
IbiiniMiV '*! '""^ *'"'* '^'"^ could (p))taiii no relief
1 111 the ''n 111"'' that the original decree shonld
ii'ive lieeii nmre favonralile to her. .S'(7/.s v. {
|U.i:n.y.<i!'i. I
A willow t'iititle<l to dower commenced an
I itiiin thercfiir agairist a tenant, to whom, with-
liiiit exiiress atitiiority, the projicrty had been
ktseil liy !' icceiver in a snit in this court :
nidi that she was nut at lihcrty to jirocced in
ui'h'iietioii without the leave of the court.
nWi«w«v.'.V((Hr(7/r, ISL'hy. 4-.>. j
4. Kfidoirr.
(a) Of Miii-riiKji .
Fviileiiee "f cnhaliitation and rcinitation of
ni,irri.ij;e wi
mariw't: ""■ '■■ suliicient in dower; it is not
I ii^csiirvtoiinive the marriage hy j ersons who
were iinwiit at the ceremony. S/uik r v. \\'<ill<ni,
j fiU S lilO: l'liil'J"< V. Miiiin\ ") (i- H. I(i ; <!nt-
I \m 'I "■'■•V. /.""'. t' ' '• •'• 3'<' ; l^'""ti '''■ li'"lt!h
|- (\ p. 484 ; I'li^i''' V. Miiri-dju -4 ^)- 1 >. "iSli.
But where the demandant relied uium such
eviileiiee of imiarriage said to have taken place
in the I'niteil States, and failed, thecimrt, uiuler
: tlic ciroinnstaneus of tliis case, refused a new
trill. .S'/'ii'v. DdUiii. 14 Q. B. 5,37.
Ami where the demandant relied upon such
eviildioe of an alleged marriage in Ireland many
rars lirevioiis, and there was a second verdict
(orthtilefeiiilant, the court refused to interfere.
I lyiW, V. 07/((r«, ()('. V. -i-)!!, '-'(IS ».
, lnthisea.se, irrespective of general "cputati'in,
Itkercwas evidence tiiat defendant hid told :i
I thiril pirty he ws to give demandant's husliand
I |hL< hrotlier), 8100 to hring out his wife and
[cliililrtii from Seotlanil, who was to execute to
I iim ill retiu'ii a deed of the land in question. De-
I bliiit afterwards said lie had received the
I W, .inil that the wife would War her dower on
I kerarrival here, (hi her arrival, di feiidant rc-
I eeiveilher into liis In ise as his tirother's wife,
[ aid rt'uiL'iiized her as such until his brother's
I deaths-Held, good prima facie evidence of
I marriage. ,'<oiiilile, that the recognition of de-
linanilaiit a? his briither's wife would aluiie have
llrtn sullieieiit ]irini;'i fa''ie evidence of their
I marriage, as against di^f, iidaiit in this action.
B>«ii:i\:li"illfi, 17 (■. P. 484.
.\ Separation deed executed by the il..'ceased
IWuiml, wherein he aekuowlodged the plaintiff'
jjahiswiie, with proof of payments made to her
liU'lerit, and a eertilicd copy of registry of mar-
1 tiape frniii the iiarish nigistry in Ireland :-
. ...'U, suttieieiit evidence of marriage against in-
Ifant lU'fendant.s ; the adult infants by their
linsiver ailmitting the niarriage. Cniii/ v. Tmi-
|p'*ii, St'hv. 48X
(b) Of Seizin.
\ iiiUr the plea nf nc unipies seizie, possession
IW the hushand is priinfi facie evidence of a
Iteianinfee. Lwkman v. NeMw, 5 0. S. r)05.
But in this case it was held that merely giving
jeviileiice that the husband had been in posses-
sion of the estate, •.vithout jiroving his title, was
insufficient. John-ton v. Mrdil/, (i (). H. 1!»4.
Held, that the evidence stated in this ease
was insuHicient to establish the hiisliand's seisin;
but on the atiidavit tiled the court granted anew
trial on payment of costs. iVniindcult v. Filluli r,
1 1 t^. J5. 4!».
It was jiroved that the tenant held under .-i lon-
vejance made to the husband, and by the hus-
band to another iiarty. He admitted that ho
had both these deeds in his |iossessioii, iiiid de-
clined to ju'iiduce them on notice : Held, ani]ile
evidence of seisin. MuIIkkhh v. Mnl/nr/i, i;{ (^.
1!. ;{.-.4.
In dower, by the widow of M.. ita]i\ieared that
a patent for the l.md issued to one K., and a
witness proved tliat he was one of the snbsirib-
ing witnesses to K.'s will, but the will was not
produced, and no evidence of its contents given.
It was proved, howi'ver, that U., from wlmni
defendants purchased, derived title through I'.,
who had held a bond for a deed from the paten-
tee, and that I'., before he sold to I!., took aipiit
claim from W. of all his interest in the liiiid,
executed by M. only, in which it was state' that
the laud was devised by will to the saiil M. by
K., the original grantee of the crown :~Ilehl,
that no estoppel arose upon tliis deed, ami that
there was no proof of sei/iii in .M. Miia'tir v.
Hair/.i,is, Miniibv v. Ash, -JO (,>. li. 20.
Dower. I'leas, I. Ne umpies seizie : '2. Xe
umiues acconjde ; 3. That demaiidaut and her
husband were both aliens born, and imt natural-
ized before he sold. The loss of most of the
deeds all'ecting the title was proveil, (or rather
presumed) from the burning of the house of the
owner in fee, and a deed was proved to the de-
mandant's husband and brother as joint ten ;nts
by jiroduction of a nieiiiori.al from the registry
oitice and the death of the deiiiaiidaiit's hus-
band before his brother, and co-joint ten.int,
was also proved. I'lxiiia motion to eiitera non-
suit :--Held, that the demandant couhl not, with-
out specially reidying it, rely upon the tenant
being estopped, by ttiking a conxeyanee from
her husband after marriage, from shewing that
the seisin of the demandant's liusband was as
joint tenant with his biother, and that he died
tirst ; '1. That secondary evidence of the loss of
the ileeds was admissible, lla.^k'ill \. Fru.ti r, 12
In an action ' ir dowei in the west half of a
lot, the husband's seisin being denied, it was
proved that upwards of sixty yc;Ms ago his father,
whose title was not sllcv^•n, dieii in possession,
leaving the husband, his eldest son and heir-at-
law . He married demandant foity-live years
ago, and nnived on to the east half about 1814.
His brother, who had always lived with him and
the mother on the west half, remained there,
but knew that the husband claimcil it until his
death, eight ycais before the trial : Held, sutti-
cient to sup])ort a verdict for demandant, for the
husband's .seisin by descent from his father was
in full force when he married, and if afterwards
his brother had obtained a title by possession,
tluit could not ail'ect demandant's right. .1/c-
DwKiidx. McMilhni, "23 Q. B. ,W2.
The evidence nf sei.siu was defendant's decla-
ration to a third party that the husband was to
convey the lant'l in t|nestiou to him, and his
\ %
\W--'^
1U7
DOWER.
.! .-i
\\\i
him in fee, together witli a ineiiKirial of thm
conveyance executed by tlie (lefen(hint. Tlie
husband had been also on and ott" the hind before
the cons'eyance : — Hehl, snlficient
Bmtty, 17 0. 1'. 484.
Btiifti/ V.
tlTtll 1,
subsefjuent declaration that he had conveyed to ; may recover ilair.ages withuiit sottiiir
shewing a demand. 7i/H;;(7/ v, /,,«,r/.v, sV'h.';'!;?
Action for dower-no suggestion oi, the reeori
that the husl)aud died seised, pleas 1 Ti '
the tenant is, and always lias been, rrailv t"
render dower ; "2. Tout tumiis iirist, \mi\ i tp
der of .lower and refusal lifioiv artiiui l,r„'„,,i!'
Replication to first plea, vrayin- iii,L'nK,n ,
, demandants dower to be as.si"iu.il tci Imt. t
iSeiulde, th:it where the evidence shews tliat [second plea, a demand and relus.il bv tui ■ t
e tenants in an acticm of dower could have I the rejoinder to wliich was dcuuinvil to ■ h"|T
assigned <lower, which would be binding upon | that lipon this record thcr<; cimM bu iki k,
themselves, tlie deiiiaiidants are entitled to i ment of damages. IIhwLsIhiii' ''
succeed upon the is.sue of non tenuerunt, with ; (^. B. 71.
out any reference to the cinnp.arative goodness |j^ dower where ;
(c) Olhir Cii^r
the
//■»/;;;«.,, II
of thdrUtle. M<-CH/a>, ,-l ..rv. M,vU''it .V ./.. ! .le^b.^.thm; am? j;'ign::!;;ran,!: '•""'' '" ""
f>^>?-^^' •'•''■ i fault, costs may I '
Ill an action for dower 1)y husband and wife,
a competent witness, ('iidiiutn it n.r.
be recovered
17 Q. 13. •218;'Strei'/ v. L'uir.
til i;ii livde.
11,
10 (X B. 591.
I lower, midfi-a'c. Ill
. and tlii.'iv is iki |iro.
I dciu iiiiliiiit t'l .
iVlilci
the wife i
V. fat roll ij,
A tenant n dower is not compellable to give
evidence of the contents of the title deeds, tic,
under which he claims. Lipich v. iS Hard, (i C
P. 2,")!1.
Held, in an action of .lower, that the pr...luc- !•'''"" '^'- /^'""•'"«'"'. ^1 0. !'. 4S4
tioii .)f an abstract .if tlie registries up.m a hit, I Tf the bill is simply for .Inwur, aii.l \\w title is
showing the granting by the crown of a jiatent, I admitted, no osts will In; given, but \\li,n th.
was not sutiicient evi.lence .if the patent with.)ut j .lefeinlaiit makes an uiirc:is.iiial')le detl-nce ami
the pro.luction of an exeinpliticati.ai. <iua're, i fails, he ,vill be nia.le to pay costs. '
is an abstract reeeivalile in evi.lence at all if' "' ' ' "
objectc.l t.) ? But under the facts state.l in tlie
case, the c.mrt refuse.l t.) so'', aside a verdict for
deman.lant. V.V. f/ < / u.r.. v. Ranhs 10 C. P. 202.
A .judgment for seisin of
of 32 Vict. e. 7, (»., is liiia
vision in such a case entitHii
any damages, nor any pr.icee.iiiii.' pnr
ascertaining any such .laiuages. I'lit.. Statiu- m'
Merton remarke.l up.iii and ilistiii^uislifil. /;„.
'■"':/ V,
lu an action of dower, the tenant relied upon
a release liy the .lemainlant an.l her husban.l to
C, fr.iin wh.iiii the tenant hail afterwards pur-
chased the land. This release was executeil by
the demandant by mark, her name being writ-
ten by some .me else, and the tenant was the
only subscribing witness ;— Hel.l, that pro.if of
the tenant's signature was n.it ren.leie.l a.lmis-
sible to pnive the .led by the fact of liis being
a party to the recoi'.l ; and that as he could not
be examine.l on liis own behalf, and .itl'ereil n.)
other evi.lence that the .lemaiidaiit executed tlie
release, the .leman.laiit must succee.l. Hagarty,
J., dissenting. L'l<u-k v. Stiniisun, 2.'i (.^>. V>. ."i2a.
TiiniilrUiii, 8 L'hy. 4So.
Whereawi.low insiste.l mi licr rl^'Jit tiiiiiiivrtl
as well as to the be.picsts iiiaile liv thr will, tliel
court allowe.l her her costs, altii.iiigh uiisiiivi«.!
ful in such contention ; the i|iiesti.iii liaviii'-j
arisen from the terms of the will, and .Iciwuinitl
having Ijcen in terms exc!u.(cd, but haviii.-lwn]
hehl t.t be exclude.l .in extrinsic eviiliiM.
lii'fhirx. flinniniiiid, 12 t'liv. -IS.').
\v;
the
."). D<nii<iiii.t (iiitl CoMa.
(a) 1(7(1-;/ I'trw.rtiMi'.
A suggestion mig!>.t be entered after final ju.lg-
nieut that the husliaiiil .lied seise. 1, and an
in.juiry ha. I concerning the ilamages since the \ ( 'hy. oliO
death, although the tenant was the alienee of the
heir, h'ohtnct v. Lciri-t, Dra. 228.
In dower neither damages nor c.ists can be
recovere.l when the husband di.l n.it die seised.
Ddijtoti v. Aiililjo, (i O. S. 143; LuchiiKVi v.
AVw, .") U. S. oO.") : W'ulbr v. Himltdii, (i (>. .S.
553.
The rule is tlie same in e.piity. ],<)sn v. Arm-
stnniij, 1 1 C'hy. '^\1-
A writ of execution for .lamages an.l costs was
set aside, .lamages being neither claimed tui the
reord nor awarde.l in the judgment. D.triti v.
JlWiih, ti (). S. 157.
AViiere the husband dies seised, unless the
tenant pleads tout temps prist the demandant
lere tUe annual value of a wiilow'sUMWcrl
was u. it large, an.l she made im ilciiiai.il I'mit, (
but resi.le.l .in the property with her s.ni, tliej
heir, .luring his life, having no iiitfiitimi
claiming . I. iwer, a claim fdr "invars a;; liiist Ins j
estate after his death was iviiisvid. /'/»/-';.< v.
Ziiiniit'fiiMn, 18 C'hy. 22-).
_ The mere fact, that at tlic ileatli nf, nr :iliiiia-|
tiou by, the husband his baids were .if im iv:i
able value, is not alone siiliirieiit to iliseiititlej
the wi.low to damages, if the land lias lietii snli-I
se.juently nia.le rentable by icasnii nf iinprme.]
meiits or otherwise, either by the heir or vtmlet;
as in such a case a poi'timi of llie rent iji
attributable t.i the lainl. WnUiu-c v. J/u
Plea, tout teuijis jirist. Tlicre w.is im aveH
ment that the husbaml died scisf.l ami lUHlaai-l
ages claimed, but the jury fuuii.l i.ir tliu iilaiiitif I
an.l Is. .lamages : —Hel.l, that tlie. lauiaL'i'smi'S'
be struck .)Ut. /finii/i/irii" v. /Sunicit, iiii,'. B.
4(i3.
See (roitrhii/v. (Joiirltty, 27 <)■ H. ITS, p. IIW.i
(b) Driiiaiiil and offiT fa iixi'iijti iimhr
Vlrt. c. 'iS, 'anil ('. .V. i'. C. f. .V
/.;,r!|i
I'liiMleJ
The tenant pleaded tout temps prist.
mandant replie.l, denying the tenant's ivinliiui
to assign, an.l averring a .leiiian.l iimlur '.'K*i 1
Vict. e. 58, and a refusal. The tenant tiaviiw
.t scttiii;' tiirtli,,,
/0H(7.-.i, S (}. li. w;^
stidii (111 till' riHurt
1. ri(.':is, 1, Tlu;
ii.s lii't'U, ri'iulv \,,
« prist, iuul :i't,.n.
)iv actiim 1 in .light
yiiig jii'lLriiiiMit (,t
■siglifii t(i Iut; to
■L'l'lis.ll liy tcMiaut--
murro(lt.i : -H.-lil,
,-oiil(l lie iiiia>st'Sj-
'"• V. //.,./;/;„,,, II
I is iivuri'eil ill itie :
IdwlmI tip i;(i liv lie-
//'((•/•/.f V. .l/iHv/.'ii
, s (J. r. -m.
ower, iiiiik'i- sei'. Ifi
unci tlnMV is 11(1 |iro-
iil; a (l(;iii iiiiliuit t'l
■udiiii.' pnivi(l(.'(l fur ;
;'.'S. 'I'liL' Statute (,i i
listiiiguislu'il. Im-\
\V(.:r, ami the title is!
;ivL'ii, liut when tliel
siiiialilo (k'feiice ainll
pay costs. '.V('i;;v. j
II lior ri^lit til (liiwttj
ladf liy tlK' will, the
althdugh uiisiKvcss-l
111! i|iiestiiiii li;iviii»|
■ will, anil (IdWiiimtl
ikil, lint liaviii.'liieu)
t'Xtviiisic (.'vidrtit.e. ;
y. 48.').
(if a widdw's iliiwir]
[<_: 11(1 (li'iiiiu.il fnrit,
y with hiT sdii. tk'l
iig no iuti'iitimi nil
V anvars a;,Miiist li;s |
vinsuil. I'iiil!':' v,
e death «i. (ir:Jiiiia-j
llids wi'lV (il lli> lV.lt-]
lliiciciit to ilisi'iititle|
ic land lias lionisiA-
•asiiil lit' iiiil'r"Vi-
Iv tiiuhfiriirvciiiKi;!
lili'.l of tllL' IVIlt ijj
I) <i//mv V. J/o'iC'. H|
rhi'i-L' was 11" :'.vir-
I sciscil ami ii" 'l™'
liniid liii- the l>l:iiiit!lf
|iatlliLMlani:i,L.'i'siiii'*j
1149
DOWER.
1150
1; (,i. li. ii'
11. IIHI
i.v/'i/H iind'r /"''i''^
r. c. c. .'.'''•
Ii'iii[is prist. Tlu'le-j
|iu tv'iiaiit's iv;iilmi*
jniaiid iindi'l' '■'**' '|
I'ho tenant tr.ivd!t.ili
I 1 . refusal. It appeared tiiat after receiving
', ,|^(.,„.'„id the tenant gav a written notice to
■'mwilant that he was willing to asaigu hei'
■'.r In pursuance of this ilotiue, tlie tenant
Ttlie demandant's second bushaiul met on
*,"' „f„„„il and the tenant then ofTered what
rt'iiHidored a third, and pnt up pickets to
nrk the liuHiidary. The hn.shand, however,
I fiiSLil this, and would not say what particular
I '^rtiim thc'dcniaiidant wanted or would take.
iTl'ie P.irtics then separated,juul the action was
jcidit^niiUhatavenlict was rightly fonncljor
,'ht;- Held, that tiie offer proved was sutH-
,,,,,,,(' iiiiil that a verdict was ri^, .
;kteu:u.t. /}<V"7'WW,- .■> ..r.y.Prnrn, I'J Q.
I B. 30iJ.
l)wi*>'
|c. .^S, «-as no'
J., considered that the 1.3 & 14 Viet
t intended to interfere with aiiv
I costs existing under the old practice, or
I"'' „ire a deinaiid where demandant would
li|.l„rt h;ive liecu entitled to costs without it :
tint the plea of tout temps prist admitted a
■„u til il:iiiia;.'(.'S from the comnu'iici;ment of
thouit to the issuing, if not to the execution,
,if\k' writ of cmiuiry, without any suggestion
tliat till! h"sh:ui(l died .seised; and that on the
t lileailiii".S therefore, in the sale, the demandant
mv'lit strictly have recovered such damage and
I (DiiaiFiitlv the costs ; but as this \\as not in-
' siittd on iit'thc trial, and the verdict was jnst,
iheci'iiourrcd in refusing to interfere. //<. See
I H7,i/, V. '>'W»i.i/"'"v, •2'A i). B. 7').
I fin.rt w;is no suggestion in the declaration
Itliattk hiishaiid dfcd sei.sed, ;uid no claim for
l,|3u,„fS. The tenant pleaded tout tenip.s prist.
iRepfcitioii, a demand and refusal, iiejoinder,
ikiii'issue on tlic refusal. It was proved that
lifter I'Uiaud >erved on the tenant, under LS c*t
114 Viit. 0. .")8, s. ."), ne went to demandant's
littimiev, and said that he was ready and willing
ItoassiLiiiliiwer whenever she would come for it.
Itodiidi tlie attorney reidied that the tenant
BBst take his own course. The jury found for
Ljmaiidaiit and Is. damages ; and a laile having
|feii"!itained for a new trial. Held, per Draper,
J.,iii4 Burns, .1., that such rule should he dis-
kliargtd. I'er Draper. .1., that l>y pleading tout
Iteniliqirist the tenant had admitted a right to
'miaies, at least from liringing the action,
Tliii'li wiiulil carry costs. Per IJurns, ,J,, that
tie ntlcr lU'oved was insnlhcient, and in etl'ect
imuimteiltiia refusal, and the demanilant should
(herd'iire liavi! costs ; hut that there could lie no
iiiiagii. asthe husband was not proved to have
Idiedseiseil. Kohiiison, ('. •!., dissenting, on the
fiiimittliat the evidence shewed no such refusal
|Is cniiH ilii away with the etl'ect of the otl'er
jjit'iviil, ami that the oli'er was sntHcient lunler
statute to exempt the tenant from costs.
'flmy.McKiWii, I •-'(,». B. 3-2:i.
Ik' tenant hiving allowed judgment to go liy
iefault, (leuiandaiit entered a suggestiim of do-
aiiil iiiaile heforc action lirought, to which the
tenant made no answer, and a x'enire was awar-
Bcil, on whieh the jury found that such demand
pas made ; -Held, that this was a trial, within
."i, iif 11! & U Vict. c. .")8, and therefore that
biauilant was entitled to co.sts. Aiii/tr.nju v.
lfam.,f/, U Q. K IGl.
Plea, tout teiiiiis prist. Keplication, a de-
Jiiil and refusal. Uejoinder, denying tlie
(eiusid. There was no suggestion that the hus-
litd seised. The uvideuce aheweil that
the tenant bad freiiueiitly olTered the deman-
dant her dower, and to leave it to two jicrsons
to stake out the land, but she declined, saying
that she eonld not work the land, and would
rather have compensation, and no ))ortion was in
fact marked (uit : -Held, that the issue must be
found for the tenant. As the husband did in
fact die seised, Semblc, per P>urns, .1., that that
shmild have been snggcsted uii the record, and
the tenant would then lit\'' been entitled to
damages from the suing out ••( the writ, and con-
scijUeiitlv to costs. Itjirkiiiiiii V. I'lfhiiiiiii, 1.")
• ^ B. •J()(>.
Where nothing appears on the record to shew
th.at a demand of dower was served, Semble,
that the master cannot tax coit-i ; and, IJuicre, !is
to the proper mode of shewing that .-i service of
demaml was "made apjuai- on the trial" so
as to entitle demandant to losts under 13 k. 14
\'ict. c. t")8, s. .5. /fniii/ilir'f s v. lianiitt, 1(1 Q.
B. 4(;;i
In (lower, where a (h!maii(l is averred in the
declaration, and judgment .allowed to go i)y
default, costs may be recovered. llarrU v.
Mnnhii, 17 <,>. B. -278 ; Strut v. 7.'(/'(v, 8 C.
V. •.m;s.
To an action of dower, alleging a demand made
liursiiant to the statute, V. S. ('. C. c. 'Ih, the
tenants jilcaded tout temps prist. I)cinaiidant
replied that she rcijucsted lur dower more tium
one month and less than one year before action,
but that the tenants did not endow her ; and that
the judgment for the said damages and endo.v-
iiient shall wait till the said issue is tried. The
teiiaiits joined issue. The evidence Jiroved il
demand, and that the tenants said demandant
might have her dower, but did nothing : — Held,
that an issue was sutliciently formed npmi the
record, and that upon the evidence demandant
was entitled to a verdict, and to costs. Ikhl. v.
F(,.'<l<r,t <tl., 11) Q. B. 298.
Demandant sued foi' do« cr as widow of ,T.,
alleging in her declaration that .1., died sei.sed,
claiming damages from his death, and .averring
service of a demand of dower. There was no
plea, and the demandant m cut down to assess
(laniiiges : — Hehl, that the tenant bad clearly a
right to shew that.!., had parted with his estate,
and therefore did not die seised, though he cmild
Hot dispute his seisin during coverture. The
tenant iiroved a deed made in KS.'ll, of the laud
! in ijuestion, by .1, to the tenant ; and in reply
! the demandant proved another deed made in
! Is.'it, by .1. to his father, to w liich the tenantwas
' a subscribing witm!.ss :— Held, that as either
; deed shewed the estate out of .1. during his life-
, time, it was unnecessary to consider the etVect
i of the tenant being a subscribing witness to the
second deed ; and in any event, as .). could not
set lip the second deed to avoid the first, having
made both, neither could tlie demandant, who
claimed through him. As . I. therefore did not
die seised, it was held that demandant could
have only nominal damages, from the time of
the deuKind ; but that she was entitled to such
danuiges, and the tenant was not entitled to the
costs of the assessment. .Send)le, that ailemuu-
dant failing in the action is liable to costs.
Srrulrh V. ./(trk:ioii, 'M Q. B. 189.
Qua'rc, when the tenant does not plead, so
that there is no trial, whether the right to costs
cannot be shewn by producing the demand and
;:
Il 1 1
1151
DOWER.
ll.li
affidavit <>f service lieforc the master on taxa-
tion. Scrafrli v. Jarhoii, '2{> Q. 15. 18!). i
Seiiible, under ('. .S. U. ('. c. 'J8, that avei'- j
inoiits of the scrvit e of demand, ami that the ;
liushand died seised, should not he inserted in
the de<''.aratiiin, Imt snij;gested afterwaiiLs ; anil
heiny irrc^levant to the right of .action, if so
alleged, tliey are not admitted hy not being
traversed. //».
.hidgniciit v.is signed in default of jilea to a
deelar.itiiin whieli iivcrred a ilemand of dower
one montli lii^fore ;iitiiin. ami that the action was
brought in less tl':i.n cine year fi'nm sucli ileniand :
but no aliidavit of M'r\ ice of the demand w.is
produeed to tlie master on taxation. An otl'er ,
to assign (hiwer was made befiiro action lirought :
Held, that the dciiiamlant w.is entitled to costs,
and tiiat tlie judumcnt wasnuular. (lillilinul v.
RM, .") r. li.'lK). ('. L. Chamb.- (iwynne.
Seiidile, The dcclar.ition is a iiroj)er, though
perliajis unt the necc^sarv [ilacc, for averring the
necessary demand of dower, under t'. S. I'. ('.
e. "JS, and v, here it does contain it the averment
is admitted liy a judgment liv default. Hi.
Demandant averred that her huslwnd did not
die seised, and a demand pursuant to the act,
and tliat tlie tenant had been cluring six years
next before tin; .action in occupation and receipt
of tlie rents and ]iiii|its, of the yearly value of
£1 ;") : andshe clainie<l her dowei', with tluiprolits
accrued since her husband's death, and damages
for the detention. The tenant pleaded that he
hail always been iiady and willing to render
dower, and before tliis suit, and within a nmnth
after tlie demand, otlcrcd it to demandant, which
she refused ; to which the demandant rcjilied
that he had not always been ready and willing,
&e., for lie did not render to demandant her
dower as .vlleged, tint refused so to do. At the
trial it .appeared that the tenant servecl a written
notice, naming a day and hour to meet deman-
dant on the land ail 1 assign her dower, and atten-
ded accordingly, but demandant having mistaken
thoday a]iiioiiited did not attend, and the tenant
in conseipieiice refused to do anything nuu'e : —
Held, th.it on this evidence the tenant was
clearly nut •entitled to succeed on the issue, and
a verdict having bee'i found in his favour a new
trial was granted. .Seniblc. that the dcniandant.
having trcateil the plea as (iH'eied in bar of dam-
ages and costs only, should have signed judg-
ment at once to recover seisin. (,Huere. as tn the
propriety and cH'cct of ,iii averment that the
husband did not die seiscil, .added to a claim of
damages, the light to which, since the ('. S. V.
V. e. '-'S, well as bci'ore. depends on such seisin.
Cuiik- v. J'/ii/i/iM, -2^ Q. 15. (■)!».
l>ower. Plea, tout temps prist, on winch dc-
niandant signed jiii'
then entered asu,
pr.aying dama,
signed judgment by default, and assessed dam
ages at the assizes : Held, that such assessment
was irregular, for there being no averment that
the huslirtiid died seised, no damages could be
recovered, uotwitlistaiiding the plea. 15ishop-
rick r. I'earce, 12 (). B. 31(1, commented upon.
W/iilr V. (lrhii!<hcnr,; 23 Q. B. 7.').
The oU'er to assign dower reipiired by (.'. S. U.
C 0. 28, s. 7, to deprive demandant of costs, ia
proved by a bonil fide offer, shewing a concession
of demandant's right, and a readinesKtinldi,)
is requisite to render it ; it is not nectssarv ti-
the land should be staked out or assii^ru'rl." 'n'
issue being upon such otl'er, it .■ippeaiuil tlri'
demand having been made under tlif statiit'
the ten.ant served a notice on dcmaiKlant adnii!
ting her right, and iiii]>ointiiig aday im w|,i,i||'
wouhl be upon the land to assign lurilmv,]- u
that day no one aiijieared, but on the uovt ,1 "•
demandant's son and another iieisciii seiitlivh'
came, and the tenant ])(iiiitcd nut tn tliiin"
cleared tield, which he said he Mould irjvi., njif
one-third of the bush land. This \\'~|s ijut ,,'
cepte<l. nor did they tell the tenant w hat tCv
rccpiiied : - Hehl, that the evidence Wa^ Mitiici4't
to go to the jury, and the court refused tiulis
turb a verdict for tenant, lieiuarks an,,,, t|i^
uncertaiutv of the jircsent law a.s tn i!,,«
/.';.'/;/-;• V. 1 1, .in,, 2.S (,). I!, •^m.
(c) lliiir E.<t'niiiit,il,
The mode of estimating daiii.ages fur tlieclit^'-
tioli of dower is now provideil fi.i- hv ;!i;\j,i
c. 7, s. 21, (). See yurtmi v, .S'/»;///, -.'(m^i. |; ._i|;j
alHrmed in appeal, 7 1.. •!. 2('):i ; ll.n-l, y i/^ ,|'
iiiiii, i;u'. I'. i(i:{.
Demandant's residence on the pi'emi.-rs. )ii tb
family and at the exjiense of the heii-atl iw. !>
]iart of the time between the death of Iht hii,.
band .Mud her recovering judgment, i;. imt aiin,].
sible ill evidence as a set oil' tn her ilai
ineiit for her dower. She
^^^.tioii of demand and refusal,
es tor the detention, on which she
■y ill
.-.i.-xv. .■> V.1.1..1.VV, ,1.1 CI 01.1, .'It HI net oaiua^rs
the detention, though proper tn gn tn the iir\
mitigation. Jiiiliiml \. /,< »•,'.,, lira. 2(10.
In case of a sale of laud, a widnw is net i.iitj
tied, as I'ompensation for her dower, tnthehn. I
cut value of one-third of the interest in tliJ
purchase money ; the value is tn he enniinitnl
'th reference to th.,' nature nf the ]iiMi«.'itv.
iriir/ v. 1 1 mill r, 2 (.'liy. Chamli. "Sli. M'cwjt. I
with
In case of land nf which a u idnw is il,.\vali]e,
but ill which her dower has imt Imcii si.t "Ut, if
the timber is cut down she i
come arising from one-thin
dueeil.
lilt, II
ellfitleil tn till- ill-
if tl
le anieinit [ir.-
Furl'!/ V. S'lirlhiij, ISChy. :i7iS.
In such a case the widow had rc-asmi t'l
apprehend that the owner intended tn filltlu'
whole of the wood; it was shewn thai in larthf
had no such intention; but he had an "j'|inr
tunity of undeceiving her, and did imt avui'
himself of it : Held, that [ironf that he b;iil imt]
the intention imputed tn him did nut extiiiiit j
him from liability to the cnst.s. //..
The mere fact, that at the death nf nr alidu- j
tioii by the husband his lauds were nt im iviit-l
able value, is not alone sutlieicnt tniliseiititk'tlieJ
willow to damages, if the laud has heeii siilia'-j
(lUcntly made rentableby reason nf imiirnveimiitsj
or otherwi.He, eitlici' by the heir or vendee; asiiij
su(di a case a jiortiou of the rent is attiihiitalilej
to the land. Wnll'io, v Mum;. ISChv. ."illO.
(d) (Hhir CiM's.
Motion to increase damages refused wlien
not iliadc until the second term after the
IVal'iim V. T(i-ii-illiijii; I (,). 15. 21.
Security for co.sts mav be obtaiiied iinlmviT,
Nolan V. WcW, I P. IX.'IM. f. L. flui"''.
Burns.
llo2
iliiifsst.Mi„„-im
i>t ucc^cMsary tin;
ir assium.il." 'I'l,,
:M'1»->i-i''1 tluita
mici' tin; statute,
li'iii.Miiilaiit ailniil-
ailiiy 1.11 wlii,;iii|,
,^11 lici'ilhwi'i'. Ill,
t on tho iioxt lb
K'Vsuii si'iit liy lie,
;(l (lilt til tlitiiu
Udlllil i;ivi,., witii
Tiii.-. was imt a,;.
tt'iiiiiit what t!i(v
It'iii'c was siirtioitiit
luvt rt'i'iisfil til ili,.
lU'iiiarks apnii tW
law a^ til ilnWrt.
nagt'sfiir tlieileteii-
li-.l fi,r I'v :v.' Vi,t.
.Vi»;//,.'J(i(i, i',.'.i|;j/
•A: l!:,d\. .l/.r„i
tlic ]iiviiiiM.'s, iiitliul
the heir-at-law, I'nf j
iL' (U'atli dl liiji'tms]
jiiiL'Ut, it. not aiiiiiij. I
' to lior ilaiiiagcstfirl
■to L'o to till- ,lllTill|
.-, lira. -JliO.
a willow is lint ciiti'
r lloWlT, to till.' lifts-
the intuvi'st in tk 1
; is to hi- (.:nlll]iutiil I
n; of till' iii'iii'Wty.
laiiili. Ii'il). Mi.Wiit.
a willow is il"«alilc, j
not 111 -I'll M-t iiiit. ii)
is oiititlfil til till in-
ot' thi- anuniiit jirn-
llSCliy.:!>.
low hail ivasiiii t"
iuteniU-il til It'll tlifj
llu'Wii thai 111 'aitlk'
|t 1k' hail ail "it"!'
ami iliil nut av.iil
lii'oot that 1»' hill mill
]iiii iliil not cxi'iiiiit]
i>ts. /'..
iWath of i.ralii;iia-|
Ills wci'i.' of nil idit-i
I'iciittoili'^ciititU'tliel
liiiil has licoli su
ouof innii'iivi'int'iitJj
li'ir or vi'iiilw. :i-'^'i'l
ri'iit is attialiiit.iMej
, l.sChv. .'lilU.
,n;i.s rcfusi'il wln-'rai
■ltiii afttr tilt triaL|
Is. -Jl.
. olitaineili«il"«^'M
C. L. (-'li:"''"'
11.13
DRUNKENNESS.
VII I!ii:iii'.'< "F Trm'iiA'^F.Ks witi'-.i!!-. tiii'.ki: i.
' OirSTANIllNIi DdWEK.
Where a ^arty agrees to eonvey iirrtijcrty, he
■ 1 .,,,,1 to do "so free from dower; or if the
m liiilllin II' '» .
•f. will iw't release her dower, then to eonvey
1 '"i ' .f theruto, with an ali.'itement in the imr-
i£mi!'ley k.m/...'v. ,VA.»..„. 4Chy. 578.
\lthom,'h at law the right to dower is, during
' y,, ,"[' ti|,; vendor, a nominal incumhranee
I '(i,j, ,,iin'h isi'r has a right in eijuity to eom-
"l' ts iuino\:il- or to have sjieeitie in'rfin'mance
'I till' emit'''"'*' "'*'' '''" 'i^'i'tenient in the amount
''■ jl,^, ,„i,.,-ha.se nionev in resjieet of .■sueh iiieiim-
braiu'e! !'<'» Sonnai, v. B<aiii>r,;r, Chy. .-.!)!!.
Theeoiirt refnsed to enforce a eontraet forthe
.,„l-ln,i,l, which wa.s snbject to an outstanding
liin, for ilower, until tin; title to dower was re-
mi,vi.'il <'h Hitler r. Inee, 7 t'hy. 4.S-_', ohserved
,,,„,„ Thompson r. Brunskill, .'//. r)4-.>, .'iiiiiroved
j- (','„wW( V. '/"//)'»'')•••">«, 9 ("hy. 1!)3.
.\ii ,'iiiplieation hy a purchaser in a suit for
jmilii pt-'i-foiniaiK'e for aliateineiit of purchase
inoiii'V, "II >"i" tiround of outstanding dower,
he made in court and not in chainliei'ii.
,., V. (u-'ihdiii, I Chy. ('hand). "Jl-'.
Siir.igt;t'.
•
Vni. MiscKi.i.ANKors ('asf.s.
Tk l>"«er Act 32 ^'iet. c. 7, a. 3, ()., is retro-
I si«tive. /.V ThU, 5 L. J. N. S. -JttO.-Chy.
Tk' ili'fenil.i'it in an action of dower jileadcd
, iieimi|iies seizie i|Ue dower, and after trial and
i verilii't a"ainst him rememliered that a lionil
|yiioi.n''exeenteil hy himself and the dcinan-
lite several years l)efore, ]>roviding for the
Iretee iif the dower in c|Uestion, which liond
iWrdiiaiiKilin the hands of a third jiarty, and
Ibliint heeii iii'iiihiced at the trial. The court
jmutcilanew trial on p'lyincnt of costs, with
I leave to aihl a plea. O'l-iiirthi ct ii.r v. SIniarf,
lU'.P.Sfi.
.\ ffiiliiw's title to dower I «ef ore assignment,
Ijtliiiii^h nut trausfcrahle at eoinmoii law. may
llethi'siihieet ol .sale and conveyance in eiiuity.
\ltiiii\.Simm>riiiiiii, 'A Chy. TiOS.
Iiiaiiailministratiiin suit, the testator's widow
jigRfil that the real estate shouhl be sold free
llriinilicr ilnwer, and the master l>y his rejiort
lilipriivfil of this, hut the sale was delayed at
fte iiirtanee of the creditm's in order to ohtain a
IkKtr iiriie. The widow therefore jiotitioned for
Ipim'ut of a .small sum towards the allowance
liliit might lie niude to her in lieu of dower. ']"he
Icreiliturs were too luiinerous to he all served with
Ithe iK'titiiin. hut many of them, including the
Itliiiitilf, having constmted thereto, and there
|l)tiii!;iiiiiilipiisitiiin. the court granted wh.at was
Imycil. /;/ /•( TliiiiiiiMiii, Hii/nir v. />irk-'iiii, 1
ly. 1 'liamh. ;V_';^.-~Mowat.
Where a wiihiw is made i\ defendant as being
■(ntitkil tn ilower, it is not safFicient for the hill
Iti allege that the husband died leaving her his
Twiiiiiw ; the hill should further exjiressly aver
phat she is entitled to dower, and that she claims
pi W s(i entitled. Murl'iii v. Mr(}li()ihiin, 15
Kliy. ■tS.i.
The Cdurt of Chancery has jurisdiction in a
^t, as well as on petition, to decree a sale of
:3
11.54
if dower. Cii.iMii v. fnx-ifi/.
an inchoate right
I 15 Chy. 3!)!».
1 The defendants, executors of Z., gavi' the Bank
1 of Ujiper Canada, on the "iOth April, l.S.">.S, a con
, fessioii of judgment for t''217.(>37 !)s., in which
I sum tlie estate of '/.. was at that tinii' indebted,
and judgiuent thereon was entered on the foUow-
I ing day. This action was brought to test the
validity of the judgment, the pl'iintitVs conti'ud
ing that the judgment w.'is I'ccovered in fraud of
them and other creditors. It iqipiired that
i defendants being trustees of the real istateof Z.
j as well as his executors, had allowed out of the
j personalty to the widow of '/.. ?<()(),0I)0, to obtain
a release of her right to dower in his, /. 's, binils.
The plaintitl's eolitiiidcd that uinlei the plc'i of
pleno administravit vel uon, thev were entitled to
I judgment to this ainount : Held, that the aji-
I plication of the jiersonalty of the estate to obtain
a release of dower in I iiids was a devastavit
and a misapidication of the money, of which the
IVink of Upper C ui.'lda being iiiteiisted in the
estate had the right to coinpliin. This amount
! however, was .-ifterwanls, ami before the com-
' meneement of this suit, nude oool to the bank
i out of the proceeds of the sale of 1 unh;. Cnder
these facts :}Ield, that the verdict slmuld be
entered for the defend ints. the plaintills being
allowed to take judgment of assets i|uaiido. T/u',
Cditnni'rnnl Ihnih v. Wmx/rnil'i/ nl., \'A ( '. V. (i21 ;
14 C. 1". -li.
DltAIN.
.S'l'. WArr.H AM) WArr.i;-('on;si;s.
iH!iviN(;.
1. NKiii,i(;r.Nr DiMviNc Sn NKiii.n.KNci:.
- Ill I
j DIU'XIvKNNKss
I 1. irNDci.; Inki.if.nii-: wmi Inkium afks - .SVc
! FuAri) AM" MlSIIKl'ltl-'.SKNIA'lloN.
[.SV(- /; ,1. .',V I '(■(•/. r. IS <. .',(1, 1 1
When a w.aggon is left standing in the high-
way, the owner cannot exempt himself from
liability by shewing that the person injured
thereby was drunk at the time of the accident.
Jii'llei/'v. J.ittiih, 10 (i. B. 354.
Held, that a regulation in a municipal by-law
to the ert'ect that no innkceiier shall soil intoxi-
cating drink to any habitual drunkard, after
being forbidden so to do by any relation or friend
of such ilrunkard, was beyond the jurisdiction
of the munieii)ality. In ir /inrrlnii v. Tlir
Miutir'iliiililil (if till' Tuii'iiKhi/i of' Diirliinitiiii, 12
Q. B. 8().
But an enactment that tavern keejieis shouhl
not give or sell liquors to any person in :■ state
of intoxication, was held good. Jii vf (In I's/nrh-
V. T/ii' Miniiripiilili/ of Otuimhvi; 12 Q. B. 458.
Death by " accident caused by intoxication,"
meaning of. 8ee liofiicr v. Cfoi/, 27 (J. B. 438.
•' m-
11 05
EJECTMENT.
11. Mi
u 'f^
;'**ft
A ipursipii was coiivictuil <if lii'iii;,' iliuiik cm n
jnililii; struct, oimtrary to law, and ailjiuljjed to
pay a tine ot' $'■>() and costs, or to lie inninsoiied
for six niontiis at liard labour. There was
power givun l)y l(y-law47Sot' the eitv ol' Toronto,
to inijirisun an otlender for tlie ahove oU'enee,
hut in the warrant of ecniiinitnient no reference
whatever was made to the ))y-law : - Held, tiiat
tiiere is no eoninion law right to imprison any
one for heing drunh on a puhhc sti'cet, and that
tile hy-law not liaving lieen referred to, tlie eoii-
vietion WHS had. //' /v Liriii'intiiiic, (i I'. It. 17. —
('. L. ('hand). -Hagarty.
A person cannot legally be arrested fordrunk-
eimess in ids own liouse, even at the recjuest of
his own family, unless ho is I'reating a distur-
bance of the peace, linihin v. JjliiLrtci/, (i 1'. K.
IV. l!i(;iiT oi.' Way Sr, \V\\,
V. Dkdication i)I-' — SVc Dkdkaiion.
244.
„ ( 'hamb. Gait
nri'LU'iTV.
.Sii- l'u:\\ns(i \T Law.
Du|)licity in an in<lietnu'ut on a summary trial
before the county judge, under H"2 & I^.'! Viet. e.
35, is not a ground of error. (\>rnivull v. He-
tliiut, 33 <^ K lOii.
I
nruEss. I
Where in trover it was ajiparent that the goods i
forwhich thcaction wasbronght, were transferred
by the plaiutili" to defendant when umler duress,
aiul the jury found a verdict for deft'udint against |
the justice of the case, the court granted a new
trial'. Shu-urt v. Biinw, (i O. S. 14(1. 1
A party having been arrested on a charge of I
olitaining niouey under false pretenses, agreed, I
in presence of the magistrates who ha<l issued '
the warrant, to execute a mortgage on his farm j
to secure the amount, whereupon he was dis- 1
charged, and he. with the complainant, went j
and gave instructions for the conveyance, which '
he sub.sei|ucntly executed. The court, under
the circumstances, refused to set aside the mort- I
gage as olitaineil by duress, but as the coiuluct
of the defendant had lieen harsh and oppressive,
dismissed the bill without costs. linihhi v.
Finhij, OCliv. It)2.
DUTIES.
.S'ee Kevk.mk.
DYINdl DECLARATION.
Het' Criminal Law.
EASEMENT.
I. Air— AV Air.
IL Lkmits and Windows — .S>e Lkjhts.
IIL Water. — »S'cc Water and Water
CoUR.SE.S.
An easement c.vn only be granted liy \y.^,y .,11,1
if given by parol, may be revoked at ,iny tiim.
i 'fii-^lcr V. ( 'fihjhldii, Vj. T. '1 \'ict.
flehl, that tweiity years user will lc;,'itiiii;iti.
an easement atleeting private property. Imt not i
nuisanue. Jiiijimt v. Jin irstrnl ti/., s ( '. I'. •>os
The owner of a house sulMlividcd it, ii,,,! u
the north part to one (i. This consisted uf (,,,,
rooms, a front and back mom, tlu' I'miit iiKiin
having a ehiimiey, but out the hitter, (i. l,;,,! .,
stove in the back room, and the cmlv \v:iv Ik.
could use it was by passing a stuveiiiji;. thiiiu"||
a lude in the partition liet«een liisaiid llii'.sniilli
part, and thence into the cliiuiuey in tlmt uan
The owner subseipiently leased tlic s.aUh |i;utt'i
defenilant, who at the time lie hee:uiie toii.iiit
was aw, ire of the existence of the stuvoiiiiiu
G. afterwards .assigned to the iilaiiitill, ;unl mi
leaving took down the jiipe. The phiiiitilf (in
coming in put uji a pipe of his own, with tlit
consent of, or at least without any uhjci.'tiiiii hv
defendant. The defemlaut iriviug aftcrMai'l-'
taken down the pipe and stojiped up the h"ir
Held, that he was a wrong-ih'cr in sn ihmi^, i-ir
that he onl,v held the south part suhjcct tu the
user or easement of the ;ilaintilVof tliestuvciiiiit.
and hole. ('Klnrirrll v. Lnrkitniiun, lHC. !'. i;i|.
The nature of the eujoyiuent of an eiisuiiant,
at the time of the grant, is the pruper iiieasmv
of eiijovment dui'ing the coutiuuaurc ni tlit
grant. Iliintnl v. Jiicksmi, "Jl ( 'liy. •_'(;,'!.
ECCLES1A,ST1CAL COKl'OUATld.N-
Sec Ciin!<'iii:s,
EJECTMENT.
I. For wh.vt it Liks.
1. <lcniriill;i, 11,">8.
'1. Triiil tif (Jiir.ilii)ii.-< iif Humnliirij—^f
fxil'sDAltV.
II. ri.AINTlKF's TlTI.K.
1. /W^CSWIC// Tillr, \\M.
'1. Oat-iiiiiiirniij MiiriiiKiji ", Of Tilk ni j
Slriui;lii:-<, I ItiO.
3. ])iiiiitiiil I'J /'().«( .<.</!/// (UkI AV"' /'' j
'Jiiif.
(a) Vi'iii/or (iiiil I'drrlidv ,: IHi'.'.
(b) Jjiiiiilliin/ (iiiil Tiiiiiiil, ll(i4.
(e) Morti/ai/iir ninl MorlijU'jK- S": (i.
1174.
(d) Siijlirlinc!/ of, lllUi.
(e) (ftlier Cas(% IKitl.
4. Otiur Cn.ir.i, 11(;7.
5. Ev'idvnrr of T'tlh'.
(a) ClaimiiKj hy niffiniit yW-, li:0.j
(b) Hi-tthiij Kji Di/a-riit D;himf, \\'\-\
(c) Offer I'll Difimhiid tu Pirvkn,]
1171.
i;iH»l!.Vri(iN^
1/ MorUjor-li'^' /'•
11 .i7
EJECTMENT.
loS
1 172.
-SW Evidence.
^,1) (itlnr ('iisi
(e) Of P'llini'i-
(f) 1^!/ ('Ii'iiii'ii'^ iiiiifi r Slirriif'n Dci'il
-.SVc lOxKcirioN.
III. \\\ I UlTllllAl! I'KKSdNS. ,
1 Join! Ti'iiiliil" (liiil Ti'IiiIiiIh 'hi Coiiiiikjii,
2, lliii<>i(iiiil 'iiiif "(V'l 1174.
H. Murlijii'joi' mil/ Morliiniirr, 1174.
4. lii/ iiiiil Aii'iiiist /ii/iiiiIk '.Sic Infants.
,"l. l.illiill'iCil i""l Tlllltllt Sir LaNDI.OHI)
AM) 'I'KNANT.
IV, ruAiricAi. 1'ko<'EIH-re.
1. I'lii-liry,
(ii) Uniirdllii, 1177.
(h) Adilimi mill Strikiini out Piirlks^
Si'i'i,. 119!).
•j. Writ i)f Siiiiniiiiiix.
(;i) Sirriri' iif, 1170.
(b) Ollwr ''((SCI, 1180.
X Xiilicr of Tilli .
(a) Fiirm of, nnd Pnirtin , IKSO.
[h) Ihi PImiitif, 11 SO.
(e) Bfi Di/i'i'lmi/, IIS'2.
(d) rm'liniliirs iif Title, 11S4.
(e) Anil inliiii'iil "f — See /i. ll'OO.
.(. ,V.,/;.v' lAiiiitiiiii Di'ftnce, 1184.
,'). E>iiiiti('>li' DiJ'imu:-<, 1185.
G. .Yii/iVi ^' Difiiiilmit ti) xlnir Tillv, 1 18().
7, Dirliinitiiiii.
(a| l-'unii mil/ Sirrirc if, 1187.
(1)) Ajlii/dl-it of S"ri'ifr, 1187.
(c) !'',/,((', 1188.
8. Xulii'i' to itji/Kiii; 1188.
11. Ai>ii(iiniiiri' mill Difence.
(a) irM(« !'•//((/ 7V;y(f', 1189.
(li) Bij Lniii/ionl, 1189.
(e) Bif iilliir Pi-r.iniiK not iinnml in tlu
Wi-it, 1191.
(il) tiilia-('iiii:<, 119-2.
lU. (Vh.<.)i/ /'h/c, 1 19S.
11. Siin-tiiil for not VinifcMinii Li'usi', Eiilrn,
iiiii/'Oiinlir, 1193.
I:'. Hull fur Jiii/ijnifn/, 119,S.
i;i. Jiiilijiii lit fir Difin/t (f A/ipi<irmiir or
llifeli'i-i, WXi.
14. lull rrmintiiHi I'/nintUI' or Jji tmi/mit,
\m.
15. Driitli of PIniiififf or Difimlmit, 1194.
li). Tml, Virilh-t, mill JiulijiiienI, 1195.
IT. iVcri(/(oH.
(al llm-riillii, 1197.
(b) Ki-ititution, (Uid Aftiirliminl for lie-
Kiiinimj J'lifiscKMon, 1198.
IS. Aiii'iiilmfnt of ProrrcdinijH.
(ii) liij Aililini/ mill i!)trikiiiij out Ptir-
tiM, 1199.
(b) Of Svtin of Title, I'iOO.
(c) O/Riruri/ at Xiti Priii,i, 1201.
(tl) OfCvnmU Rid< — tiev p. 1193.
(u) (>///(/• C'./.«.i, 1202.
19. Other Canen re/iitiinj to J'niilin, 1202.
V. Stayin(» Prockkdinos.
1. Bi/ liijuiii-tion, 1203.
2. /(( Ejevliiieiil till .\[iirtiiiiiiiin niii/i r i
(ieo. 11. r. '.'II, lion- ('. ,V. C, ('. r.
.17, K. h'l, 1204.
3. Olliir ('ii.Hi:'<, 120").
VI. Costs.
1. On .Inilijinint I,;/ Drfinll, 120."i.
2. Seen rit/i fur t'ost.'i, 120li.
3. Sliii/ini/ /'r irii'diiiii-t niiii/ (\i.ii.^ of Pre -
riiiiit Ariioii.t II n I'liid, 1200.
4. Attor/niiiiil for .Vim jiiii/iiH lit off''i.<ts,
1207.
5. (Jtlier fVivM, 1208.
VII. KKFKCroKjllXf.MKNr IN IvIKCl'MKNT, 1208,
VIII. Mksni; I'RuFcrs.
1. P/riii/hi;/, 1212.
2. Eridiniw, 1213.
3. Daiiiiit/i'x, 1213.
4. Other Cii.^i.^, 1213.
IX. MiscKLi.ANr.ms Casks, 1214.
X. 15v LandOwnkrs adainst iIailway (.Ujm-
I'ANIKS See IiAII.WAVS AM) KaII.WAY
Co.Ml'ANlK.S.
XI. OVEKH0LDIX(J 'rKNANIS--.S'.< LaNI)I.(IUI)
AND Tenant.
XII. liUillT OF POSSE.SSION INDKI! ('i>Ml;A(T
TO PURCHA.SE— .SVc SaLK dl' I.AM).
.XIII. Nkw Tuiai- in— ,V(-(; Nf.w Tuial,
1. FoH What ir i^iiis.
I. <liiiirii//ii .
j Pluiiitifl' l)r()iight I'jc'itiiR'iit ayaiiist defeinliint
1 after he liiul (juitteil i)(ist<i;s.si()ii. Defomhiiit
' appearoil, not liniitiiig his (let'ciice, nor stating
the nature of his own elaini, hut at the same
time he served a notice on the j)laiiititi"s attor-
ney tliat lie <liil not deny the plaiiititl's title,
and Inid given iij) possession before action
brought, 'i'he plaintilf nevertheless took the
record down to trial : - Held, that the bringing
an action under the circumstances was unneces-
sary, but that defend lilt should have applied
to the court to set aside the writ, instead of
iippeariiig to it ; and both parties being wrong,
the j)roeeedings were set aside witlu)ut costs.
' llar/ier v. Lowiulex, 1,") Q. li. 430.
Held, that tlie sale of ''oad owneil by a com-
pany under the Iload Comp.iny's Act, C. S. U.
C. e. 49, by a sheritl uiuler a li. fa. lands, is 9,
valid sale, and a conveyance nuule by hiiu to the
purchaser is suHicieut to ena))le the vendee to
bring ejectment. To/ten v. lluUiiimi, 13 C. P. i")G7.
Held, that the plaintifl", a member of the
church of England, eould not maintain eject-
ment for pews in St. James's church held by him,
because he was not entitled to the exclusive pos-
session of them, his possession being limited to
the special purpose of attending divine service,
at which time alone he had the right to enter ;
I and because such right was of an incorporeal
■ \:
1 I;
I i,.
■I I-
' '^•;|;
n.idM'^
i«" I
1139
EJFXTMENT.
iiiitiiTr, iiiiil ]Hi.ssessi(>ii of it cotild not 1)0 givuii
by the sheiitl'. /{Idoiit v. J/nrnn, 17 V. P. 88.
Til ejectment it aiiijuureil that the land in
(liK'stioii liiul liccn survi'ytMl liy tiin ;,'ovei'niiiciit,
uutl liiiil out .in slicut.s in 18;VJ, in their phiii
lilcil in tlu! ii.';;ii<ti\v otlicu ; and that tlie pLiiii-
tills had aftcrwanlH 1il'i;ii iiicoi|)oratt,'d as a t((\vn |
iiiolndiny thi'.s(! strofts witliin their limits. I'ev j
MeLeaii, .1. The land was ve.sti.'d in the ])lain- j
tiffs. IVr Kmiis, .1. The freeliold reniainod in
the erowii ; Imt, Held, that the iilaintiflk at all
events eoiild not maintain ejectinent, the land [
lieing a |iiil>li(' hi;4liway. '/'//(■ ('iir/)i>r(ifiiiii d/'l/ir
Ttiirn "/' Saniid v. 7'/i( Until Wisttrii 1! Co.,
21 (i li. r)<j.
II. I'i^mntikf'.-* Trrr.K.
1, /'iisncntiori/ Tillt'.
■ Possession from Avhieh seisin may he inferred
nir.st 1)1! iietnal or visible, not eonstruetive. l)oi-
(I. Muriinii V. SiiiijiMin, .5 (). S. o,').").
A. in 184'J conveyed to li.'s son, then a minor.
The deed was never registered. H. swore that
he bought the land from A., but being in <litti-
eulty had the deeil made to his son, and that he
had ahvay.s eontinued in ])ossession ; but on this
point the evideiici.' was eoutradietory. A.'s heir
ill 184!>, made a deed of release to I!,, and J>. eon-
veyed to the lessors of the iilaiutitl' ; both these
deeds were registered :- Held, that the mere faet
of H. being in jiossession when lie conveyed to the
lessors of tile iilaintifl' could not be relied on as
priiiui facie evidence of sei.siii, after A. had been
shewn to have been in [lo.ssession previously,
and to have conveyed to B. 's siui. Dite d.
Friiw ft ii/. V. (•'h-lij, '.) i). B. 41.
Wliere a pl.iintifl' in ejectment recovers land
of which he lias been for twenty years dispos-
sessed, and is jiitt into possession liy the sheriff, ]
the defendant is not [u-ccluded fioni trying the
right again, and relying in an action brought by i
liini upon hi.s title acijuired by the twenty years' j
possession. Muniii v. Jcx-iup, !,") (). B. 012.
In ejectment against two, the plaintiff's ])roved
a mortgage in fee made by one while in possession
as owner, and duly assigned to them, and that
the other defeiidaiit came in after, without shew- |
ing how : Held, suthcient, prima facie, to en-
title the jilaiutiffa to a verdict against botli.
JUcckx ft (il. V. Pati-rsoii rt <//., '22 i). B. HIT.
In ejectment for 100 acres, the east half of lot
23, the plaintiff claimed under a mortgage exe-
cuted by F. in 1847, and assigiie<l by the execu-
tors of the mortgagee to the plaintiff' in 185(),
and a release of the eijuity of redemption from
F. to the plaintiff in ISli.S. Neither the land nor
the mortgage debt were mentioned in F.'s will.
It was proved tl.at in 1847 F. owned 100 acres
of lot 22 adjoining, and had cleared fimr or five
acres of the half lot in (piestion, of which he
was reputed to be the owner. Defendant had
occupied about twelve acres of it fornearly four-
teen years. Qiuere, whether this was sufficient
prima facie evidence of F. being owner in fee.
HitiiUr V. /'<()•/■ I't <il., 2.3 Q. B. 324.
The plaintiff' proved a mortgage to him in fee
from one B. , and called a witness who swore that
he purchased from one P. the east half of the
lot, of which this land was part, excei^ting nine
acres t that P. had been in pn.ss(,nsinn nf tiaent
half since ISM), and gave H. )icissis-iiiiii nf i\
land sued for before witness iiunli.iscil tl„. ^
inainder from P. and that defendant tujil liji,. i
had "■.^nght from B. NVhcu defcnihiil, ciitt.,,,!'
or under what right, did not ajiijcin- ; idiV
aullicient pi'iiiia facie ^'^■idclK•(• as iigiiiiist i|,.i.,'
(hint. CunrI V. /'(ihiiiAon, '24 i), I). i'y_>
In ejectment for the east iiiilf ut n l,,) .i
plaintiff proved a deed to hiiii tnnii S. di tl •
whole lot executed in I8(i."), and that iiitsih',
claiming under S. had UvimI fr |,s;<7 f,, j^j-^t
on jiart of the west half, liiiihling a jn^ \,„^[^^
and clearing four or live acres. It was niit
shewn that S. had been dispusMssi'il hy „iiv
one ; and the ilcfcndant, «ith those tliniii.r||
whom he clainii'il had been in Jiosscssidn .,j|,'^,,
about I8."i() : Held, that this tvidciiiv wa« imt
sutlicieiit to go to tlie jury. .S7/-(/vy v. Jnmkm
el,,/., 2.-)Q. B. 150.
Kvidence that plaintiff had been in inissi'ssinn
and had been intruded u]iiin hy dcftnilaiit
Held, insiitliciciit, it aiipcariiiL' that the tVc was
still in the crown, the lilaintill' ln'in;.' in imsst',.
sion as a free grant settler, hut vithuiit patent
or license of occupation. IJni'lfrs,,i, \ i/,,,.
risini, 18 ('. P. 221.
Held, upon the facts stated in tins lasf, tiiat
ilTcsiiective of the objections r.iiscd to tiic |ir(iiil' ■
of their paper title, the iilaintilis liad .siitlJcK.nt
title as against tiic defendants, wlio had I'litcrii! :
upon the peaceable possession of tiu- iihiintitlsn]
their grantors. ThinniiMui \. II, innll, •'•' (' p
3!)3.
It ap]ieared that the plaintiff's gr.uitnriiaiUut
timber on the land, and had the Jims run liv:i
surveyor, and tlicu conveyed, clainiinu:! nwntr;
that (lefendant tlieii entered, the hit '.cinfrininc.
cupied and w ild ; but tint there had hcuna |iri,ir
occujiation by ilefendant, at least as ai'tnal as
that of the plaintiff, but no occMiiatimi liy aiiv
one for any period ap]iroarlniii: twenty Vimi's:--
Held, that any jircsuniption in iilainlitl's favmir
fnmi any possession jiroved hy hiiii, \v:is ivlnit-
ted. U'lil/liri'/'ji- v. (H/iiiniir, 22 C. I'. I.Ti,
2. ( htlnliniilhiii Miirliiii.fjt ■< m- Tilli in Slnmn,,
A. mortgaged land.s in fee to I'.., amllielnrf
the time for rcdeniption exiiircd, on an arr;nii;i;-
inent with B., A. conveyed these same lainU in ]
fee to (_'., in full satisfaction of the dcht .<iriiitil i
by mortgage. No re-con \cyancc frmn I!. tiiA,
was proved. ('. went imo pds.scssinii iiml inii.
tinually held for about 13 years, winii I!. niaiKj I
conveyance in fee of tlu^ same jn'cniisfs Uih,
claiming the title througii this iiKutguijc ; - Hdii,
that I), was not entitled to recover in cjn'tnii'iit,
and that if necessary a re-convcyaiiLi' linni R,
to A. might be presumed. Jhfi- d. MrLimi v.:
W/iitcKklcs, .-) (). ,S. 92.
Ejectment cannot be sustained by a miirtgagiii5
against a .stranger where the iiicirtgage is mer-1
due and unsatisfied, the fee and riglit nf \ioiim
sion being in the mortgagee. Dui- d. MrlSiritu\'^
Luiidii, I Q. B. 18(i.
A satisfied mortgage in fee to a tiiinl ji.wtj
cannot be set up by a stranger as a sulisistinj
title, to defeat the true owner. Dw (1. MfKmi
I't uj: v. Johnson, 4 Q. B. 508,
1101
EJECTMENT.
1IG2
liv hiiii. wiis ivliiit-
■/';/'( ill SI I'll ii'jif'.
R'd, on an aiTiii;;f-
lu'Sf saiiu' liiiiiUiii ]
it' tlic- lU'l't swuivl
■aiK'i' I'l'iiiii I', til A.
iMissL'ssidii ami L-i'ii- j
IS, wlu'iiV). in;\iWaj
ClIVtT 111 I'Jt'l-l
ciuvovaiax'
Ifco to a thiril prt
<i. ililo tliiit IV wiiliiw fiiiiiKit lie iilliiwi'd to set A jmrty poMsuMsud of |iiviiii»i'.s is not u.sl<i|H)U(l
' ' iiiiii'tUVM^ ^" " *''''■'' P'^i'ty iixninst tliu heir ] froiu suttiug up uh an imtHtaiuli'iK titlo ii>,'iiiiiHt
"!''.' 1 1 1 //) a c'l limiiiit II idiivi'Viineu to :i tliiid party, al-
Wheiv till' (■■•'tiitc !.>■ ill the cniwn, mid neither
rtvslH'"-' '■'">' '■''''^' ''L'y.'""' "■ ''•ii'i't possesHioii,
'I'.t'iiaiit ill posseMsiiin, if ln' I'liteivd |iLNH,'i.'iil)ly
tllO jUHtCl'tll
liiur cpf a I'lainiin;,' riglit, may set up
IS a det'eiice. I>iic d. ir/7/v'.i v.
peU'iiiliiii' |'i'"l"''^'l '^ niiirtm'age in fee given
, In, ,,l,iiitill't(iiiiie ('., to secuiv tile payinunt
f C'.'fO ''>■ '""'* dliielits. Hy tlie mortgage tile
" iirt'iiiWr "as to ii'iiiaiii in possession until tiiree
'""ntli* iKitiif in writing, aftir default, deman-
IIIIU^ " ,,,, , III I •
iiKlit. I 'iL' lliol'tgiiKe liad lieeli dis
llliilltll:
ilinj; li'iy
(.uniiiioiiffiiH'Ut of
i„ri. ci.llti'lliiei
title wIk'H 111'
til li:i\'-' '"''^" J.''^''-'" ='** rei|uircd by tlie
and lie wiis therefore entitled to pos-
Siilii/ V. Hard-
gage nail heeii (lis-
red a week after the
the aetioii, anil it was tliere-
that the iiliintill' had no legal ,
legaii his suit : - Meld, that lie i
■vertlKloss reeover, for no notiee was
pnii'ti
lUiTttlilgL'
»„„,ii at;:iiiHt the uiiirtgage
Itwisaihnitteil that tlit; plaintill' lia>l irort-
M.,ilthi' iireiiiises to a liuildiiig society, the con-
jitt.iiiil the nioi'tgage h.'ing to pay I'Os. on the
ti-til'.viil every nioiith until the olijeets of the
'i,,(^.\,s stiteil in it, shonlit be fullilled. No
ilehnit'lii'l heeii nride, and it was proved that
.l,„v ictiiin Uniught the soeiety had released to
tlv'iihiiitilf their elanii on the land iii ijuestion :
HiM. tb.it the pl.iiiitill'eould not reeover, for the
iiif the tuortgagt; being uii(,'ert:iiii, he
though that third iierson eould not set up thu
oonveyauee as a bar to a reeoveiy. /'/litliji.i el
<a. V. Lonij It „!.,{) V. v. «4I.
M., owning land, exeeut'd a bond to defen-
dant, reeitiiig that defeiidaiiL was to reside with
him and work the farm foi' their mutual advin-
tage ; that it had been agree'd that afttir M.'s
death it should lieeoiiie deleiid int's, and to seeurc
this, \1. had that day made his will leaving it to
liim ; and the eoiidition w.is, that if the defen-
dant should Work the farm properly, ilte., M.
would not exeeuti^ any other will, nor dispose
of or eiieiimber the land. Afterwards they dis-
agreed, and M. conveyed to the pl.-iinliU', who
brought ejeetment alter having deiiiaiid 'd (los-
session : Held, tli it an niis.itislied mmtg ge
I'.xeeuted by M . before tlii! bond, and |iut in by
defend int. was ele.irlv no defeiiee. Mr/Juiml-l v.
.Hiirpin/, •-'() (,>. I{. :!.')!').
One F. Ill utgageil 1 mil in fee to the Trii^t ami
fjoin Compuiy, with a jiroviso for possession
until default. lJi>on his de.ith his heirs at 1 iw
; brought ejeetment to reeover possession t'lom a
! ten int, no defuilt having been made in the
' mortgage : -Meld, th it the proviso would entillu
I the mortgagor to bring eJeeLmelit, but that tlie
right of action deseeii.led to the executors and not
j to the heir.i. Fun/ it al, v. Jmiri, li» (J. 1'. .'{-"iS.
Semlile, that tli,^ wife of an attainted tnitor,
remaining in i>osse.ssi(in ol' her hii.-iband's 1 mils,
! e mnot defeat the reeoveiy ol a plaiiitill in
•leet-
Mfitimi III me mortu'.ige iieing iliu'ei
ImU a tenant at will when the suit was j nn-'ufc (the purehaser at Hlierill's sale, in an actum
!r„u.l]t ami therefore not entitled to the pos- j hi'might ag.iinst ' ' . ' "
liiliinsoii, (', .1., diss., mi the ground j into before his att diider) by sett;
' the attainder a titlj by I'oi'ieitiire to the ennvn,
wliieli the crown had forborne to assert. l)of d.
(;;t!<'.-<ph- V. U'l.iuii, ,') i). r.. i;}-'.
Sl*lnll
,y ;i stranger to a mortgage cannot in any ease
Jtitit A reciivery liy the mortgagee by setting
mtk iniirty.iu'e where there li.i.s been no ilefault,
\ aailtlio uiiirtgigee by thu terms of the lieed is
j (initlnl til piis^e'ssion till default. A.-ili/'nn/ v.
\IA'iiiniliUii, II <A>. I''. 171. f^ee, also, J>itiiilii,i
,V.irih«r, lU.). B. .Vil.
I'liiiilill'iuiR-hased at sherilV's sale ilefendant's
! iiitcri^t ill eertain l.iiids, and, on ejeetmoiit
' tiMUilit in I8.')(i, defendant iirodueed a mort-
i pgc'ixeiiitud hy one H., under whom he h.id
1 mine into pessession, to secure repayment of
I '.„ ,. 1 1 ... lo o;
lioinl entered
n\> under
■'{. I)i iiiiiii,/ of /'■i.iM-.i.'ihiii infl Xi)tirc III (^ 'it.
(a) Viuilor mill /'iirr/mx-r.
When a minor gives a bond to convey, and he
or his heir afterwards brings ejectment against
j the assignee of the obligee, the defendant is en-
j titled to a deinand of possession. But where
the defend lilt went to the heirand ollered to [lay
£iSiii(lcti)hur, ISlli. This mortgage had been , him the immey due on the bond, and to tike a
I latislieil, as was iiroved hy the mortg.igee, but
|iioilisdiai's,'e hill lieeii registered : -Held, that
I the jury sill mill have been directed, as a matter
Li iniirse, to presume a reeoiivey.inee, and
Iplaiiitirt'sliimlil reeover. CuUiii.i v. JhiiipKiij,
jlKJ. li.OT.
U(wii the trial it appeared that the plaintiff',
Ikyi miiitgaj;e dated 1st October, IStil, had
I conveyed tlio premises to one L. to secure him
jkeiiiliirsiiij; certain notes, the said mortgage
I to k voiil im payment of the notes ; and it con-
Itaiiieihi recital that the notes might he renewed,
ikt iiiilytliree times or for a year, whieli thu
j mortgagee ccmsenteil to. It appeared that the
lnotes liiul hteii renewed for longer than the period
l»llowe(l, ami were afloat at the commeuuement
lof this suit :— Held, that the notes not having
Ikeen paiil witliiu the year, the condition of the
linortgage was broken, anil the right to possesaiou
Iwteil in the mortgagee ; and a nonsuit was
Itherefori! ordered. McMalion v. McFuul, 14 C.
Ip.m
leed from him as heir, it was held that by such
conduct he had waived his right to ademind.
J)i)i' d. Liiiiiiiiii' V. Vnnriitl, 5 ( >. S. 48().
Where defendant ent;ered under an agreement
to purchase, and that he should enjoy until
default in payment : Held, th.it on default he
might be ejected without any notice or demand.
Doi: d. Slii-iiff V. Mi-dillinriii/, (i O. S. •2\H.
Where de-fendant contracted for the purchase
of land, and gave his bond and notes for pay-
ment of the money by instalments, but did not
pay any of them, and his vendors aftorw.irda
sold to the lessor of the plaintiff, who demanded
possession at defendant's dwelling hcmsc in his
absence, in the presenoe of several members of
the family : — Heltl, that if a demand were neces-
sary, that was sufficient, as it did not appear
that defendant was not aware that it had been
made. Doe d. Sherwood v. SleveiiM, (! O. S. 432.
The mere fact of a vendor continuing in pos-
session of land after conveying it, without more
t H
!Hii;
Ivf i'
!'■
IKi.l
EJECTMENT.
llq
Itciiij; h1u« n. ddcs iint I'lititit! him to ii (loiimiicl
of iiiiHscHKiiiu. I>iii (1. /{ifliiirilioji V, Ddfov, 4
Q, ». 484.
AVIiirc 11 |u'is()ii tiikca ]i()SHen»i()ii of land iiiidor
an ii^'ii'ciiiciit ti) pmihaMf it, lu' is u teiiiiiit at
will til tliu si'Uci', anil at the scllci's ilcatli his
heir-at-law caii maintain ejectment withont .my
notice to ((uit, or (iemani! nt |ioNsessiiin. Dm' A.
Kemp V. (hiniei; I (,>. I>. ;)!).
Wlure a ili'tVnit.int was in iiossession \iniler an
aj,'reeniiiit to imiiliasi' ami ]iay liv instalments,
anil alter iiaynjcnt of the first instalment taileil
to pay any of the others, Imt remained in pus
session I'nr many years, until the lessor of thi^
|ilaintill' otlered to j^ive him .i deed on certain
terms, whieli «eri' nut complied with, and told
liii.i he mi^^iit remain for the summer if he would
leave in the autunni, which lU'fendant refused :
— Meld, the jury iiaviiii,' found that the lessiu-
of the plaintitr had ,it tliis time determined the <
holiliu;; at « ill, that defendant was not entitled
to a demand. /)'i< d. M/m/i/i rs v. Tmttt r, I (^).
B. .SIO.
time the pl.iintill" agreed to have tlic m,,,-!,
assigned to defendant. On payuicnt ui y»«
defendant was let into possessinn n ",
default in paynu'nt of the' .SiiOO. pi ,l„f„i"''^
Inin notue that he w.i.'. reail\ toa<viin H,
Uage on payment ol the amount iliie, iiinl tl .
if not Jiaid deleiul.int Would W ejritiij. h.,-
dant refused i>ayment, and said he u,,i,i.l 'i''"i
a suit, and clanned a deed ni tee : H,.|,i .i ,
l>y detault in payment the tenancy at w'iji T
converted into a tenancy at sullcrain'c. an.! th^
therefore, as well as on account m liis ili.srliin
of the iil.iintitr's title, defendant w.a.s net .iititU
to a demand of possession l.t'lnre ailiim . Ji
.also th.at the tenancy at will H,,ti|,i liuvv'l*f'n
determined l>y the dcniand nl pavimnt imiI
the thl'cat of" ejeetin- the dilciiiiant, Mi^^'^'
default of the defendant to Day I'rli,,; v i;
14 c. I', :h!i. ^ ' ■ '"""^ •'/ ■'.
A. eontnieted to sell to 1!. for a sum, to ho paid
liy instalments, and deftiidant went in under M.,
U]ion soini' undei'standiu;^ not explained. I 'efaulc
■was made in tlie p.iyments to \. : Held, that .A.
eiudd eject defendant without luitice or demand. (>. ,S. H(
Dw d. 'j'hi///„,tu V. Croiirh, 5 t^. J{. 4r>;i.
(li) l.iiiiillnrd mil/ Tniiiiil.
In ejectment l.y a mortgagee the tenaiit ,laime,| 1
possession umler a lease from the nnirt-a-.n' iui,|
refused to attorn to the niiirt;.Mi^',.c '"nvi,,,",],,.
nianded possession) and shewed uiricaae, iiuiin'vl
certain holdinj,' : Held, tliat lie was lint'intitlJlj
to notice to ijuit. I)ii( d. Siiiiim,,i\, /'„,•,. il
Held, th.'it under the evidence in thi.seaae, the
defendant having been in jiossession as a pur-
chaser, and failed in making the payments, the
jdaintift' niiiiht eject without a demand. Itohtrt-
sun V. SldlU rii, It) t^. ]!. 4!W.
PlaintiH "s devisor gave .ihond to the defendant
eonditioiied to convey to him npon jiaj'inent of
i!17"> on the 1st .March. IS.'id, when the obligor
was to give the ileed, and defendant to secure
the lialance of the purchase money liy imu'tgage
on the premises. Then tollowed these words :
"'I'lie said I. .\. (the defeiid.intl is to have iios-
session of the said land and jiremises, with the
exce|ition of the house and harn, from the seal-
ing aiid iklivery of these presents :"-Held, that
on default in iiayineiit of the L'17."), plaintiff
might eject defendant. A demand of possession
■was made, liut, Semlile, it was unnecessary.
Sfriiii/liniii V. A iiiiiii riiiiti), 14 Q. 15. 548.
The defendant h;ul been let into possession
under a contract to ])urch,ise, jiayable by instal-
ments, with a sliiml.ition for forfeiture if pay- |
ment w ere not made on a particular day, and tlie >
vendor had subsciiueiit to such day reeeiveil
payment on account:- Held, that defendant was
tenant at will, and not by sufi'eranee, and that
a demand of ]iossession was necessary. Liiiiili/
V. J)oir!/, 7 V. v. 88.
Plaintitl' sold to defendant, and gave a bond
for a deed, receiving defendant's bond for the i
purchase money. Nothing was said about pos- \
session in either instrnment. Defendant having
made default in payment, after having been for
some time in possession : — Held, that the plain-
tiff could eject without either notice or demand.
I{ol>imon v. Smith, 17 Q. B. 218.
Plaintiff being in possession as assignee of a
mortgagee, under a mortgage upon ■which de-
fault had been made, contracted to sell the
mortgage to defendant for $500 : $200 down,
and §300 on the 1st April following ; at which
e .itl
iDvl
Where the lessor of tlie pl.'iiutilt'cmvuvtdiii.
fee to defendant and took hack a least' fur"
a .. iih.nal rent, and dcfcnil.iiit ceiitiminj i„
session for several years w itii the lesser's k'ni!\v
edge, but without his express eiiiisfiit :- 11,1,1
that he was eiititied to a dciiiaiiil uf iMissi«i,.ii'
Dor d. .]/iiiiji V. K<i//i, 4 (). S. M.
The as.sertion of title by a tenant hm\\
coupled with a refusal to pay rent alter aiti.iilj
brought, is snlHcient evidence" of a ilischiiiinTtol
obviate the necessity of proof of a iiuticctiiijiiit,!
e.siiccially w here the tenant attempts tn mK m\
such title at the trial. Dm d. Ci/lilurl.-'i.xl
Sd'iir, (i (). ,s. i:u.
A tenant eiideav
viuiring til lie, end liis p.
sioii by a title ail\-erse to the lessor of tlii' |iUiii-l
till', is not entitled to a uotic'c to (|iiit. y*..,
(Intliimi V. h^iliiKiinl.tDii, I (j). p,. •_'ii."i.
Where possession is dciiiaudeil froniiliifoinlaiitj
in ejectment, and he, iiisteail of claiming to hej
a tenant, asserts his liLrlit to the fee, liu li.is no]
claim to a notice to ipiit as a tcuaiit. /'■•■ ilj
McKni-.h V. Fill rum II. ~ (.{, \\, JH.
Defenicmt had been teu.ant to the plaiiitil! :it|
a yearly rent, pay:ible iniartcrly. for a tiiml
which expired on the 1st of .liilie, IS.')!'. AliMiitf
that time a new lease was agiveil niioii liutu-ieiii
them at an advanced rent, hut uoin' was. \o-|
ented owing to objections raised liy liefeinlaiittttl
the tlraft. Defendant paid a year's ri'iit. a.idj
another ([Uarter having fallen due, tlie ]ilaiMtilI
distrained, but they afterwards aliaiiiliaiiil thai
proceeding, and on the 17tli ef SeptiiiiliCTj
18(!0. the plaintitl's' attorney served a writtei
demand of possession on defemlaiit, wim toU
him that was just what he wished, and that thi
plaintitl's might have the place. He retiiseil
however, to go at once with the attoriiev ani
give it up, saying that he wished first to reniovj
some things. Nothing more was (Ume, .inil thr
plaintiffs three weeks after having hroiigliteji'd
ment, defendant, besides denying their titl«
l)y a ti'iiant lnvre, I
])iiy iviit ;iUrr inti'iiil
lU'c iif a ilisi'liiiiiiriti)]
Mil' (il i\ iiiitia'tiiijuit,!
I iitliiii]its til ivly onj
l),„ il. r»//,/.M7,.',n v.f
lu lessor C)l
ilfil I'niiiiiUtViiilaiitl
,i> till' I'l-T, lio ha- iioj
Imt til the lihuiitil! m
lajiivi'il ui"iti I'L't
lit, liiit iioiif \\ast»
isi'il liyik'tViiilaiitt«j
H a voai-'s i-fiit. aa^
1 ihiis till' I'laiiitilB
■lis aiiaiiiliiiH'<l 'W
Ith the attorney m
l-islieil tii-st to mwf
lltli'J
KJKCTMENT
lliKi
lamii'
ilaintil
,1 til tioM "«
vcri' fii
i,|,.|iilan
IIISI:
,t lll'OM ii<
itli'f
.ti-riHMi I'.v 1"; ';:
tiifii' tenant : llclil, that t)ii> (Iffmilant witlmut nuticc tn c|iiit or iliinanil ul
tith'il to recover, for, I. Thu ixiHHOHsion. /liinny. MrAilniii, I'M,*. !>, UK.
A ilcnianil of iiossissimi in not neies.-. u y « here
o estate of the ilefi iiilani tilMiiiiiiti il hv tliu
t hivmi; iletuiMi tin
tith'
to l|
uit
inlil not
111' Wll.M
tl'er to h'ave the )ilaee. Si'nilile, : ,
that ilffeii'l''"'
t, thou>;h 111' hail not aeee|)teil tli
itli of his j,;rantor, the hiisliainl of the lesMeu
t,.,iili'ri'il. «-.as
tl
11' eirennistaiiees,
lor lifi
\,,/„
I,-. ('. I'
.ili.i.
thi' V
liiiiitill's ten
lilt. Hums, .1., ilisH. on the In ejeetinent the iilaintill elaiineil iimler
Ithiitiletei
claiit heinj,' in as yearly tenant, ileeilfroiii the eliiireh smirty. the pati iitees, tii
ijlt tool
not a
ItiT Ins |i
only 'I '
not
Ifiiii
tlii'ir
lit
the 17th of Sejiteinlier iliil himself, in IStil, halieinliini to him .iml his
sitioii, anil that his notiec was ei'ssois, ineiiiiilieiits of the rhuieli of St. .lolin,
the i>l:iintitl's" ri;;lit to possession, in the parish oi Mono, for ever, with a |irovino
title, ('itrlirnijlit tl III. V. McPliii- th.it the lai
nlil not
le.iseil \\ ifhout the
•:« (,). r-- '-*•'
\,u.r!'i)n tikiii^i a farm
tlTlll I* ''
lessee,
fonseiit 111 writiii',' ot the ehnrehuanlens. The
on shares for asiieeitie ''''''''"'''l'*^ jMoveil that lie took pos-essioii in
IS,").'), with, the assent of the then ineniiilient. V.,
mill entitleil to six nioiiths
iili.r to n"'
f. Dnr (1.
;// V. L.
|,; 'p anil the ehurehw.irileiis, ami that h
■ Will
IV.
s to liavo
so many
WlnTi' a
ilurtni
its CO
le;i<|. lor a e
toiiiiit to pun
teiiauey from year to yearcxists, and
iitiiiuanee tlio parties aj,'ree for a
• to the
teil. the
■itiin term, with a povve
liase. wliii'h is never exeeu
lease fur sixteen years, ami to eh
acres eaeh year, ami )iay taxes, \-c., Imt no leasu
was i^vor excciiteil. lie li.ul rcmaiiieil ever sinco,
havilit,' elcarcil forty acies, ami |iiit up liiiililiiisiH.
\. w.is succeeilcil as incumlieiit liv the iilaintill.
t,,„;,Iltstalllls 111
agrei
tllHMit l.ii
liis ori!,'iiial situation .ifter the
,1(1 cannot lie ejeeteil without
.1 !•'
a siieeesso
.1'
r ol the plaiiitill, «as in
a rtt'iil''"' ""*"■'' '" 'I'
}rlu.ink. -M. T. 5
to iiuit. /'(" (I. ('riii>k->liinil: v.
Viet.
Wliiiv ilolVml mt hail aono into posscssloti of
li,i.l iiMiit'r a ileinisc for four years, which wa.s
viiiil iiii'K'r the Statute of Kramls, ami licforethe
exrintioii of the lirst year the Ic-^sor of the
niiiiitill toM liim th it he shoiihl want the laml
mtlie.<iiriin.', ami ilefeml.ant ayiveil to ;,'ivcitu]>
tlieii; ili'hl. tl''it *■'"'''*' "■■'*' "" "('''^'--^^'t.v f"!'
mviir :i fiiriuil notiec to ijiiit. />■" il. I.iiinh
v..l/.;,-W, •-'<.). i!. 410.
Wliorc a tenant ovcrholils for ,-i eonsiili rahle
' time ;iiiil refuses to Jiay rent, he may lieejectcil
I fitliniit a notice to ipiit or a ilemiinl of [lo.ssus-
liiiiii, /Jw il. liiirnlt V. Diiuhiiiii, 4 (.». H. !)!».
WIkw IV tenant takes a loise from .i stranger,
Ijniluii'lirtikes to piy him rent, his original
nilliinl ni'dl not serve him with :i notice to
[rait 111- ileiniiiil i)os.s(^ssion. before cjeutnieiit.
k',1, /M/oV/.-' V. ll'icNr, -^^). n. "iSil.
A. liail a lease from the government of a clergy
|l«i«nc for twenty one years, einliiig in ISS7.
Lvsiihlet to H. In I84,S, after the term hail
Itspirtil, \. ohtaiiieil a jiatent in fee froiii tlu^
luMwii, ami liiiiling H. still in possession, he
Ibrnditeieetnuiit:" Hold, that B. was not en-
Itity to notice til t|iiit, or demand of possession.
\]):l WUimrw lliin-iKs, [\(i. 15. 1!);{.
IVMiilaiit lielil iiiiilcr lease for live years, con-
Itiiniiii; a eovoiiant liy the lessor to grant him a
iRikw.il lor live years at a rent named, if re-
IqilcsUil. Tile tirst term having expired, anil no
|iB|iiest niaile : ilidil, that the lessor might
Ifjrtt without aiiv ileinand. Ihirsnu v. St. Clair,
imj. K. !)7.
Xi) notice or ileniaiul is noeessary hefore .action
|il<iii a forfeiture', where there is a power of
Itntr) in the lease upon hreaeh of a covenant to
iKjttir iir not to muler-let. ('innu/H y. Pourr, Hi
It. I'. 01.
M. conveyed the laud in question to J. , the
|»ifeotR._I{. alone executed a Iccase to the tle-
nilant, ami lUeil during the term, before his
ife ;-Hehl, tliul oi; R. 's <leath the term ex-
IpiMi. and that the plaintiff claiming under a
Imiveyiuicc from R. and his wife could eject
lient when this action was Inoiight. Neither
the plaiiititr imr !•'. had ever iceogni/ed ilefcn-
daiitiis teniiit, tliongh I'", h.id oircied him S7() to
gootV iiuietly . and I', had ileliiaiided possi'ssioli of
liini, lint the pl.iintiH' h.id not, Imt : Held, that
on the e\iileiice the phiilitill might leiover as
the giantei^ of the society, and that the demand
of jiossession. if necess.iry, made by !•". would
enure to pl.iiiitill's lieiielit. Ili iiili'rsiiii titil. v.
Whit,, •_';! ('. I'. 7S: but
Senible, that no demand of posses>iiin m notiec.
was necessary, for as ;ig.iinst the pl.-iiiilill', the
grantee of the society, the ilefendaiit enuld have
no light, not having cntiTed iimler or been
recognized by him. Jli.
(ill Siitjir'ii iirii itf.
A demand of possession by a person whose
authority is afterwards recogni/ed by the person
h iviiig title, is si-.tlicieiit. Uur il. Cn < ii v. Friix-
iiiHii, 1 Q. 15. 4-JO.
A demand of possession made by a ]H;rsoii
who afteiw.irds assigned his interest to the les-
sor of the plaiiitill'. e.inuot be available by the
lessor so as to make the tenant's In ilding torti-
ous as to him. .V. V. V.. 'W '1 \'ict.
'I'he plaintiff demanded possession at dcfen-
daiits dwelling house in his absence, in tho
jireseiK'c of se\er.il lueliibers of the family : —
Held, sutlicieiit. as it did not ajipear that the
defend.int was not aware that it had been made.
Dof d. Slurini,.,/ v. .Sti/ihiii.-; (1 ( >. S. I.'{2.
The demanil must lie iiarticnlar in pointing
the defendant to the precise parcel of land sued
for. fSec Dof d. Jiffi/y. U'llHinii-i, (>(>>. K KiO.
Ejectment for a house and small lot of Land
adjoining. It appeared that as to the house
notice to quit; had been given too late, but that
the plaintiff was entitled to the land. It was
ordered that unless the plaintiff would contino
his judgment to the land, defendant sliouhl have
a new tri.al. Coiilii/ v. Liv, I'J Q. B. 4r)t;.
(e) Other Co^id.
Where defendant, who went into possession,
under the lessor of the plaintiff, afterwards re--
\l
■■' 1
><i !
1107
EJEOTMKNT.
\ li'HHiir will! Iiiicl till' title at till! tiiii
A iii'iK.iii liMldm; imiUTii lu'i'iiMi: of .H'cimii- l,r,,„nl;t, l.ut in.l at the trial, Is ,
i.ii tn.iii till' ••ri.ttii, i« 1'iitij.lnl to a ili'iiiaii.l i.C .laiiiaKiH, altliounl. Iii< laiiiict iir,,v, ,•
fuHcil III M' kiiiiwli'il^c liiH titli' : llrlil, that lu' iiiaki' u I'ntivcy.itiri' no aH tii ci
Uan llritllrr rlltiti i| til II IHitiri' tn ijllit lliir Ik l'i!CiiVi-t' ill I'ji'l'tllU'llt. /><" I
il.'ii. iml 111' iiiiMMiMMiiiii. I>iii i|. Umilirw t'ravr 'A <). S. .Ml.
1 1 'it., Ml. S. .S(».
A pi'iHiHi Imliliii; iiiiilcr a lioi'iiMe of ncciiiia
ti
jXPHNi'HHiiiii liffiiri' ('ii'i'tiiii'iit liy a uraiifi'i' nt tli
ci'iiwii. />iii il. i'niii \. /■'riiKiiiiiii, .')(>. S. (Itil,
A lU'liiaiiil iif |ioH.>«'Mi<iiiii iniiile liy a iit'rHiiii
wliii attri«iii'ilx ,iH--i','iii'il liii* iiiti'lTHt to tlii' li's-
Mill' III' llir |ilaiiitill, raniiiit Ix! av.illalili' liy the
ll!S-llll' MO ,1^ lO lliakl' till' tl
as to him. . \. ( '. K. T. •_' S'iot
W'lirii' n pi'i'Hoii liaH liL'fii ill
many yiM and iiiaiU; valiialilc iiii|ii'ovciii('iitM ' pri'iiiisi-.i to hi^ hoii in t'l'i
iiiiiirr till' 1 yi! of tin- ou lu'i', IiIm loiiMint to tin.' niailo a li'aHi; to his fith
o('i.'n|i;itiiiii iiiiy hi' iiri'siiiiii'il, ainl tlii' |ioMMi'«.'mii' ' jujnt, |i\,'ii, at ;i iioiMiiial
I'anniit lir rjci'ti'il w ilhoiit a iIi'IimihI ol' posMi'M- day thi' latlirr ami inutlur evrcut,
Nioii. />!.. ,1. Sli<r!f\. Mi);;i/irrii,/, ti ( ». S. IH!I, i ii„'.„t iimli'i ttcal to tliu son tint Iuk
'I' lii« Vl..|l,l,.,,^,
i>i-i<m V. (,■,•„„
I illtl„5
lltltir.l ,„
111* hm
laiit's lioiaiiig tortioiin JnturuHt waM
3 Vii't.
Wlii'ii
\"
ISSl'MHIOII
for
/>./« il. M'!/'i:^ V. ItliiL'nr, V,. W •.>\|,t
Kji'itnii'iit lai t III' iii.'iiiitaiiii'il u\\ .mrm,,
aMsij^'iiniriit, not imili'i' seal, nl all tlh tuiiiil'
rixht, titli', ami iiiti'i'i'st in lln, inviiiisis, it J I
lii'iiij,' slii'wn that lu^ hail any, nr ii' ^„ „|,,j ^^^
Dll, ll. /';■/■/,.//, V. l/,„l,,,„i,^ I' .].
a fatliiT Iriil
All lii'ir iicimI Mot ili'inaml jiiLsst'ssiiin rniiii u '
|H'i'Mon ('l.iiiiiiii^ till' laiiil as tin,' ;;;i'aiiti'i' of tlio
aiii'i'stoi', w III) was a Iciiii' lovi'i't, ami I'.xi'ciiti'il
till' ilri'il liinlcl' wllirli ili'Irliil.iiit il.lillls with lli'l'
liiisli.iiiil uitlioiit Ihi' ailiiiii« liilniiiL'iit rri|iiirril
liy "I'.l (ico. III. (', ,'t, siii'li ili'i'il lii'iiii,' UM to hiT I
,'ll)Sollltrl\ \oiil. />iyi ll. \'ilii.-<ifhl< r \. /-'iliriri//, <
^\. r. 4 \ i.'t. 1
'rhoii;.(li a siii'viviii^' iiartiii'i'iiiay liavi' an I'ljiii-
taliK' litl'', vit the lu'ir of tlii^ ilcreasiil |iaitiiii'
sniiij,' ill I'lctinoiit ii|ioii his aiiru.stor's li'i,'al titli-,
mill not iliin.iml jiiisst'ssioii. Dm A. .\l/:iiisiiii v
M<Li<»l, ;s (^ 15. :U4,
'rill' jilaiiitiil's I'l.iiiiioil as tciniits for lifu iiinlrr ,
a will, aiiil ilvfi'iiil lilt iliil mil holil iimlcr thriii,
ami liy hi.- imtii'i.' ih'iiitil thiir titlu : Iklil, that j
III) iiotii'i' or lU'iii mil was iiL'ci'ssai'\'. Sraii/' r < I ■
III. V. S,;,iif,r, !!)(.). It. 10(1. ■ I
Two |irrsiiiis .'iifi'oi! toe.'vi'han,'!' l.iml ; thatcai'h !
.shall lia\i' iioijsc.ssion lioiii a day named, and j '*' uj^'etiiieiit hron-hf. hy 15. a
that they .<liall e.\eliaii,L(>.' ilei'ds in I'mu year ; and I tJV'« ai'i]iiiriii;4 iiosse.s.simi
each .nives the other a lioiiil to |ii'rforiii these coii-
ditioiis. The yeir elapses without either yiviiiy
a deid. I'lion ejeetmeiit for the lot « liieh the
Itl.iiiitillw IS toeiilivey to tilt! ijefendant : Meld,
that a demand of ]iossi!.ssioii wiis neeessary, and
]iroli.vl)ly also thit tin,' plaiiititl' .should oiler, if
not Hitiially L'ivo n|i, possession of the defen-
dant's lot, which he (plaintill ) oeciipied under
the a'-'ieemeiit. /''(•/■/// v. Anmlil, 11 (). 1'. 41.S.
eiiiivi'Mil a linii.H,. ,„,|
', and tlie.„iiiiittiTHir.|||
er .-md iiiutlii.r fni-tin.,,
rent, ami on th,. ,,,,ii|,|
11 ;i,Tw.
')'!
the hinisi', e.xecpt eertain ioihiim in jt, ;i||,i ^.^^
the rents and prolits upon cerlai ulitii.n.*, „|,
hreaeli of any of w hieii In' w.i.s to ;,'ii nut ui i„,j.
Mi'ssioii, hut his mother did iml ii'lri^,. ||,,|. |.j, u
iimler the statute : Seinlile, tint tlic inntiivr,
eoiild not, after the f.ither'.s death, im tlir ;,'ri,ii||i
that she hid not lulled her diiw.r iimhr tiiei
life lease, maintiin ejeetmeiit Inr thi' wi
the premises, without .sluwim,' .■
the a.','reeiiient l>y lireaeli of tile fuiiijit ,,^
althoiii^h she was eiitithd to reeiiver tlir ii».iii|j
wliieh were exeepti'd fr.nii tilt Mll||'.^ iniii|ii|j,
a,L!reemeiit. />.,. d. /V-'/v. /' !, ||
I under tin,'
{ t,>. li. I'J
; /\., piireh.asiii^ land ,'it slierilf's .sak', n ,i;ii^i|
reisoii to lielieve that he e'lllliiit get liiiii.s;
I without 1i'i,m1 proe-edim^'s a;,'iiiist tlii'exi'.ii".iii|
: delitor, 15., to avoid this, eoiitrivi's, liv iiilli;.|nal
i with ("., li.'.sten lilt, to :4et into piiss(>..'i'iiinvit!i.:iitl
' the eonseiit of li : Held, per lur., in mi u :i.,ii|
aii>t .\., tint .\.r
eolliHivi'ly tlirii;i;li]
li.'s tenant, eaniiot set up any title in liiiii-rll
advei'.se to li. : tli;it hefori! he eaii iln tlii.-, li"»-
ever good his title may lie, he imist alp.iiiil.pii lij
pii.ssi;fsion olitained tiiroiigh !'., .iinl luiii: .in|
actii n ayainst li. I)<ir A. .]/;.'/, r v. '/V /''»■/, 51
Q. H. 711.
J)efemlaiits lieiu-' in default niidtir a demise
A lessee may maintain ejertineiil lu'fiiri'i'iitry.J
The plaintiir elainie 1 under a le ise fiipiii mit
the defendants, 11., dated ."itli Keliniarv. hiii;|
for a term to eoiiiiiK'iice u|ioii the lstel'Miivl(
from plaintiir, he raid the plaintitl' referred all i '"""'*'.'"«• , l'«•[^•U'^_lMt li el.mne.l al>H unl.r l
diilereliee.. and the arl.itrators postpo.ed the I ''^''^^ "■"'""■ ''•^'^•'' ^'"' H'th ot lehniiuv, bn^
date of jiaymeiit. l^ua't'e, whether the ri fei.neu j
and |iostpoiieinent would not eoin'titute def 'ii-
daiit a teii.int ,it will, and so entitle him to fi liu-
inand of imssessioii heforo aetioii. .'>"c A' v.
.■U/,ni, 17 ('. P. -JU).
A. having given to B. his hiuid in ,t'2,r>00, coii-
ditionud, among other things, that <!. ami 1).
should reside on a eertain lot of land so long as
they conducted thumselvus in .1 manner agree-
able to A. :~HeIil, that no notiee or ilemaml
was necessary before l)ringing ejectment. Tii-
dak V. Tixilale, 10 V. P. KM).
' 4. Other Cusex.
Where there is an adverse possession of laud,
an heir-at-law who has never entered cannot
and it was admitted tliat lie h.nl eiiteivil lul'il
the 1st of .M.-ireh, and still lielil |iiisst'S'iinii;
Held, that the plaintitl was eiititleil tn .iviniutj
though he had not eiitereil lunler liis Vai.
Clcrelaml v. /ioiri', •2\ (,l, 1!. IIO'.I.
Tlie plaintitF owned part of lot 7, .iinl iii.'ri'ci
verbally, in 185!), to Imy from mie M. tvm acr
more adjoining on the north, <if wliicli lie wiffl
into possession. In LSIil) M. gave tu ili-ti'ii!l
a bond to convey to him thirty acres ui tlu' lufl
more or less, ilescrihing it as "alltli.it [urU
the said lot lying north of the laml iniiii'il
D.," the plaintiff, "and south of the iii.ul tliruujj
the said lot to Cramahe Hill." He afdrHan
conveyed the two acres to the plaintill', wli"th«(
brought ejectment. M. swore uihui the tri
that these two acres were not iiiteiiili'il to liei
eluded in the bond to defendant, but were lookd
1109
EJROTMKNT.
1170
lllilr 111* MMnlci'tii
I, l)i.iHii V, (f'pi,!^
. till' tilllr .il ilit|„i|
III, H I'lltltli'.l )„
rcciiViT 111* ttnt
I". •-' Viit.
iiiiiil iMi 11 writtii
it ;ill till' U iiuiU
It' Jil'i iiihi s, 11 111,) I
, Ml' it' IIP wlnl liii
s. //"./!;-..^r..I
i'\ I'll :i hiiiHc ,in,i
1 till' ■■nil altt'i'Wirli I
l|i| lllntllcr lol'tllUtl
, mill nil tin: salliel
I'M'i'iitril ^ni ;i;;ri.t-
rtiiiii I'liinliliiiiiA, I'll!
i;\H tn ff> uUt 111 |iiU-|
ml I'diM^i! Iiiir I'lihtl
f, til it till! iiiiilliirl
li'iitli, nil till' ;!i'iiiiiiil
IT ilnwi'l' uinlir tlitl
lit InV till' whuir l,||
\'iii^r il fiii'h'iuir" I
(if till' rniiiliti"in,]
:.(! rci'iivt'i' till' riM.iiul
;liu mm'f iii'i'iiinlii
,r .1. /'w'/'V. /'..'Ul
In: must al'.ili'l
,'t!lli:ntli>'t'"Vi'>'li'iy'J
;l ll'lSf fi'nni'
|,")tli Ki'liniiiry.
.,1 uiiili:r lii^ ''•'**■
I.
llt'M. that till' |ilaiiitil)' niiiHt n
'I'll)' liiiiiil, iiiiilt'i' till' I'irruiiist.'uii'i'H,
nsti'iii'il iiH rt't't'iriii^ to all tlic liiml
h,. lll;lllltlH >* ViHillli: |IIISHI'NHillll lIH IIWIIIT,
^i,,^^ln,|iii^' till' two iii'i't's ; mill, '-'. 'I'lii' ilfcil
'I'"j],,V,,,lt!<M'stril til'.' li'Kill titli' ill tilt' |il.iilltltV,
' , I li'filiililllt'r< n|llit.'ll>lo ri;,'llt llllili'I' tlin liiillil
I'llhllil-
H
llaiit, but were 1
III,, >i„rt nf tilt' |iliiiiitirt"N liiMil rt'ft'rrt'll tn in
"'"!iii,| t|„it ili'tt'iiiiaiit liiiil witlmiit tlifiii liis full
tiiirty ivt'ri'« : ^
I intrr, ("f,
,|iMiiM 1"
111 ll"'
tliu»
I! fVt'lltH M"*K'" III'.' il-HiH lILIi- III
,|l„. ,l,.f^.|lll,'lllt'^' fi|llit.'ll>lc ri^llt llllili'I'
I 'mill llinl'il lin ili'ft'lK'f. Dinnihiiri/ V
hi.r,'Jl'7' 11- •«"•-'•
\ ill li't into iHWHt^MHinii liv I'., ii|"iii an iijii'ti'
iiifiit til imii'li int', with till' uiiilurstiiinliiiK' tlmt
)i, i« til i't'iii:iiii "">•'' ih't^i'ilt. A. ;iftt'r\viiiil.'<.
;|i,.iiiili imt ill ili'l'iiiilt, li't It. into iiiiHsi'Msiiiii, on
tln'cxpri'tt L'liiiilitiim tliiit It. i.stii if.ttin ' I'lhiiii
1^ I (II,, |iiiH>ti'.'*siiiii ill II ti'i'tiiin t'Vi'iit. TliiN !
].',.,'.i,t |,ii|i|i(.iH, liMt H. I'L'taiii.t till' |iiisst'HNitin :
thiit .\., lii'iiiK t'lititlt'il t(i till' ii(iHKi'H.'<i()ii,
„iiil.im;iint:iiii ijt;i;tiiit'iit iigiiiiitit H., thimgli lit:
l,j,l till' li'^iil titlii. t)oi' il. liiukir V. Vi-iixhii, 7 I
y, li. ■-'O'J.
A ti'statiir Hcizeil in fee of laml (levineil tho siuiiu
til his will n" '"I"'"'"" tl"'t I"' «hiillltl Hll]llliH't
theiibiiitilt iliiiiii;; ln'i' l'l'<'. ini'l that- '^hi' Nhmilil
I* iiiisti'i'ns, luiil liiivf t'tiiitrnl (if tilt' ihvt'lliiig
hull* nil till' laml : Htlil, th.it tlit' sun tnuk tlii'
lainl iriiulitiiiiifil fnr the inaiiitiimiit'i' nf tlif
pbilitl iliiniig litT lift', hut tliiit im titli' wa
toiiitrml iipnii litr umU'r whitli shu I'niilil hiiiij;
(ktimiit, till' I'liiitiiil « hit'h tlu' ti'statur iiiuaiit
btiii,; iiK'i'i'ly till' iloini'MtiL' liianagi'iiitiit, nut tin.'
(iwntlTliili III 11"-' linlisc. (I'raii/ v. .\/rl,< iiiiiiii,
16 c.l'. :«».•>
in eJL'otiiieiit, till' jiliiiiititl I'lainit'il uiiiliT a
Kalflliiistniiiit'iit I'.XL't'uti'il in liis favmii' hy oiii'
M.,aiiil«itiii'ssiiij,; that in I'liii.siiK'i'.-itidii uf jirim-
imWiti'ilia'its fur pnifL'ssiiiiial siTvici's, ami to
ittiiri' pliiiitiir fill' future si'i'vii'us nf tlio saiiii'
liml, mill III' 'III "iiiii of t'_'."> ali'utuly paid anil
»iviiK'i'il liy lilaiiitill to him, iti'., ho, 5l., cove-
unteil, uriiiitutl, ami aj,'n.'oil tli;it hi: woulil ■itniii/
muil mill jiiisM .••■■iiil III' f/ii' III nil III i/iiikIIdii, In
IIkk.o III' [iliiiitiir, his huira .'iiid as.sigiiw, //// tin
vi'i iif ilmriii . HI I'll I'll ji, mill iiiiirlijiii/i' on tliu
y inrsaiil iiiniii'ys iiml uo.sts, ami wht'u jilaiii-
tii'siiwts wt:ri: taxt'il, liu was to hu at lihui'ty to
Wl tht iustniiiii'iit as ami hy way of a rlmnir,
iwrf;(ii;;(, mill Hocurity uiioii the land fur llif
«»««/ »" III III- iiKi'i I'tiiiiii il, or M. woulil, and
be I'livciianteil that hu, or his liuir.s, would, on
litniainl I'.xt'i'iiti; a unod and siillicient mortgage
inlaw, with liar nf iTower if niH:t'.ssary, and usual
wi'iiaiits, iti', : Helil, that it eoulil only (ipe-
nte iiiiiliT the Statue of Uses, as lieiug granted
on araiiin.'y eiiiisiileratiou wliieli aiiiiearotl from
tk'tsiu'i'ss rt'eitalseoiitainediii it ; and, Senihle,
tht mil etlcct wnulil he given to the whole
instrunit'iit, ami the real intent of the jiarties
arrii'il nut, liy linltliiig that it was to operate as a
charge, security, and moi'tg.age in equity on the
W. until iilaiiitill's claim ■was ascertained l>y
tuaiion, ami sn cnutiiiue as an eijui table charge,
iinless iilaiutiff desired a legal mortgage, wliich
ia tkat oast' M. covenanted to execute. Quiere,
'hetlier the iilaiiitiff took the legal estate so as
totuaUe him to niaiiitivin ejectment. Miller v.
tof((,/,,l-C. r. 559.
HfW, that trustees under C. S. U. C. c. 69,
nay maintain ejectment in their individual
•Mes, with the description, "as trustees," Ac.,
•titmg the name of the congregation or religious
;4
hody for whom they arc truHtecH, ai't'ording ti>
tl.t' tli'.ti'riptioii 111 till' ili't'd lit I'onvtyani'f.
//iiiii/iliriiii V. /hiii'ir, •.'()('. I'. I.'iti.
A. Mi'l>., in l,S(i4, th'si'i'iliin^ liiniHilf a.x of the
north half of lot 'Si, .'itli t'omt.'^Hioii, N'ottawa-
sag.'i, lii'ipii'iitht'd " tilt' aliovi' nii'iitioni'tl pro-
pt'i'ty ill tilt' fiilliiu iiii; niaiiiii'i' tn my wifn Itlic
lilaiiititl'l and family ." 'I'lii' w ill thru aiithnii/i'tl
tilt' I'Xt'i'iitors to raiist' tilt' pi'iiii'i'iU of fill' sail!
property to In' nsid for the .■^llppnrt ami ki'ipiiig
nf his wilt' and family fnr a ttriii nf twt'iity
yi'ai'« ; am' dirit'tiil tliiiii tn pay his di'lits, Imt
dill nnt iltvist' tilt' pi'npi'i'ty tn lllrlli. Till' will
fiirthcr diri'i'tt'd that, uftir tlir said tiiiii nf '20
M'.'ii's, his Null Itniiald, tlii' ilifilidaiit, was to
liavf tilt' smith part nf tlif almvt' land, wliiili ho
was to iiay fnr, and tlif rciiiaiiidir was il('\ istd
to aiiothi'i' Hon, w ho wah tliiiiti'il to pay li'ga( ics
to his sisters. Siilist:ipii'iitly llmi lid nlitaiiiid a
liatt'lit flnlii the crnwii nf till' land dt'visi'd tn
liiiii, lialit'iiiliini, " siiliji'i't, iii'Vrrthfli'Hs, tn the
ti:riiis and I'miditiniis nf the last will and testa-
ini'lit" nf the tt'statnr, .\. Mi'l>. : Held, that
the wnrds "I lii'ipieath, " itt'.. '" till I'lilliiir'iiHl
iiiiiiiinr, "fir.," to my wife and 1,'iiiiily," taiiiid
tilt: fstatt' tlircrt tn tlit'iii. Until witlistaiidiiig the
ilirt'ctioii of tilt' t'M'ciitnl's : llt'ld, alsn, that
the lU'fi'iidant hohling the legal t'state uiidtr the
patent, and having a lit'iii'tii'ial interest in hi«
own right as niie of the family, the plaiiititl'
I'oiihl not maint.'iiii t'ji'i'tmi'iit against him. Mr-
Ihimilil \. MiDuiiiilil, 'Mil IS. ,•(()!».
,%. Kr'iili lli-r uf Tilli'.
(a) Vliiiiiihnj liii illili'ri'iil Tilli-i.
Where the lessor of the plaiiitill' endeavnurs
at the trial tn establish his title as ilevisee, and
fails, he is nnt thereby preelmled frniii insisting
on his right as heir-at-law, nr as a |)iirt'haser
from the jierson last sei/cd in pos.:''L'ssioii. I)iir
d. I / 111.11 1/ V. (I mil, M. T. t) Vict.
The lessor nf tile plaiiititl' su))jinrteil his title
by a ileed, in eonsideratinii nf love and atlection.
Defendant prnved a siihseiiiient deed frnin the
same party for a valuable eonsideratinii, ami
impeaelied the first tleed as voluntary. The
plaiiititl" then otleied to prove a real eonsidera-
tioii for the first deed beyond what was exjiresscil
in it. This evidence was rejected as going into
a new case; but Held, that it might have been
receivetl, the principle that the iihiintill' slioiiM
go into his whole ca.se at niiee not admitting o,
such a strict application in ejectment. />oc tl.
Lairri'iici' I't lu: v. Sliilkn', 5 Q. 15. lUli.
Seniblo, that a plaintiff in ejectment, relying
in the opening of his case upon a priniil f.i.cie
title by possession, ami being met by proof on
the part of the defendant of a prior possession,
cannot repel such proof by attempting to shew
the pos.scssinii of tlefondant that of a tenant to
him, the plaiiititl', as landlonl ; he should go
into his case fully in the first instance. Ridiin-
son, C. J., diss. Doe. il. O.ihvriie v. McDom.all
i-t al., 6 Q. B. 1.3.5.
A plaintiff having opened his case as heir-at-
law of the patentee, relying upon the assumed
limitetl effect of his own deeu to the defendant,
was not allowed to change his ground and shew
himself entitled under the statute of limitations.
McKinley v. Boioheer, 11 Q. B. 8(j.
li
4
1171
EJECTMENT.
11:2
The plaiiititl in ejuctniunt clainieil title liy ^
ili.'uil fnmi M., t!ic ili^fLiulant l)y loii^tli of jios-
su.ssiipii. At tliu trial the plaintitV fiiilLvl to in'ovo
liis paiiui' title, Imt ulie'.veil tliat ilefeiiilant went
ill uiiifer liini, .uicl it was then (ihjeet('(l that a
iliniaiici (if ]i(issi's.sii)ii was necessary, nn whieli
(lefi'iiilant h nl le ive to move tor a nonsuit. In
tcMlii this iioiiit was not uri'ed, lint di femlant • .11 if 1 , 1 1 ■- , "•"^ "'
1 • i. 1 ii i. i^i 1 • i.ir 1 1 i I , liossession, wnien <ielenilant hail s luwn \t',
(ihji 'ti"! that the iilamtilt emihl not relvoiia }, , ,, , .,,,,. ,, ,,,' '"■»"• Mf-
(lilhrt'Mt title tnini that in Ins notice : Melil, •' ' '
that as this olijeetiiin hail not l)e<'n taken at the
trial, and det'eiidant's ease Has not one to he
favoured, he siiouid not he allowed to raise it |
afterwards ; and the ])laintiir's verdict was u]i
lield. KdiiKi/;/ V. Fri't/i, L'.S l,>. li. !••_'.
the place : Held, sufficient evidcino tn w, »
the jury, without further proof of plaintiti"<titl '
/'i)i'/!iiii/o„ v. ISroiri,/,i; -2^ (}, \',, \S,ix *'
There was some evidence in this cnsc ,,1
oiler liy defenilant to jmrehase plaintitl"^ rlajj
liiit. -Held, that this could avail oiilv if ili'w
ilaiit had no title, not to defeat a gmiil titlo W
See, also, /)iii d. l.iiiin'nii v. Vni.cii ", n ,,
4S(), i-. 1 1 (>•-'. " ' •
(d) (>///</• r,,«,,.
The admissions of the idaiiitilV in ejVctnitiit
(1)) SillhiiJ iiji Dijfi'iU lit Drfilicr^.
Where at the trial a defendant endeavours to
malie title in himself as the owner of the fee, '
and fails, he is in'celiided from relying uiioii want
of notice to ipiit or ileinand of possession, hm
d. KIiuj'k CiiI/ci/i v. (!rii/i<iiii, I l). B. 1")1S.
A (lefen<huit cannot first put the plaintitl' to
proof of his title, and, failing in his defence,
claim a right to notice or a demand, as if he i
were in possession under him. He must ileeide
whether he will claim adversely to or in privity !
with the title ; he cannot do hoth. Dm d. Mnit-
liiiiil v. Dilliilminjh, .-) {). W. -IW.
Where the plaintiff elaimed as grantee of V>. j
and defendajit, heside.s denying the plaintill's '
title, elaimed iiiider a demise troni U. : Held. ,
that defenduit l>y refusing to admit 15. s title at
the trial must he taken to have disci imed, and
was precluded from setting up the teiiaiiey.
J/iiiijl/i/oii V. 'Pliiiiiiii'^i.iii, ^1T^ (}. B. H'u.
Defendant having put plaintitf to jiroof of
title, and taken exceptions thereto, cannot then
set up a tenancy under him from year to year.
IfiUoii V. Jidhil, I'M". I'. !»8.
Defendant not admitting plaintiff's title, hut
allowing him to ])rove it at the trial, without, :
however, eross-esamining his witnesses, or other- 1
wise taking olijection to the title as proved, is i
at liherty to shew title under the plaintitl' as a|
tenant for years, lliirlshnvii v. Kailiii. I!) ( '. ;
r. i:iii.
t
(c) Offi-r I'll Diftiiihinl to /'iirr/ii !.■<(. i
Defendant, heing an occii|iant of land, went '
to the lessor of the [ilaintitl" of his own accord,
made an otl'er to ]iiweh;;se the hind, and made a
jiaymeiit on aecoiint : Held, that he was there-
liy prevented from niaintaiiiiiig an adverse pos-
session, or putting ]ilaintiir to further proof of 1
title. Dtir d. JJiiii/iiiii v. WiitLii; 8 (,>. H. .'iTI.
Where defemlant, having ohtained possession |
without any [irivity with M., tiie plaintill's as- ;
sigiior, went to him and off'ered to purchase, hut
no hargain was made, and he told M. he might
sell to whoever he chose ; llehl, that the jilaiii-
tiff could m.'vintain ejectment without further
proof of his t'tle. Drokr v. Xmifi, 14 Q. B. 47f>.
Where the plaintiff proved that he had leased
to one B., and that after he had left tlefendant
went in : that defendant offered to purchase at
the valnation of a person named, and after the
comnieneeiuent of this action offered .*800 for
I' hciiiyan infanti,
lieing a ri'al person, (the
are not evidence to ]ire\ cut the iwiivoiv nf
the premises. Aiiliiilion ,\, Siniii',,,;! y 'u,
•A (.». S. 84.
Wliei'e in ejectment against a pcrsmi K't int., i
possession of land, a witness stated lie liad smi
a written agreement aliout the land lutwini tlit j
parties, hut it was not shev.-ii in wiiusc iibti.lv
it was or what its terms were, ami it was [irnvti'l ]
tile defendal.!- had written a letter to tlie iijiiin.
tilt's agent, stilting that he was tu •.'ive uiitW
premises on a cert.ain day- it w.is luiil tliattliil
lessor of the plaintitl' could imt he ieiiiiiri'ilto|
produce the agreement, as it was iiot sutlieii'iith'l
shewn to he in his custody or power. /*..
Mitfliill V. Mr /.(<,(/, i> (). .S, .Vi.'i.
Kvideiice will not he receiveii tn sliew tliata i
grant from the crown was iin|iioperly i.^,^^k■ll. !..|
as to eiiahlc a suhseijuent grantee tn leupvui
ejectment. Dm- d. Mrh'di/ v. Iltik'ii.'\ T;j|
& 4 X'ict.
Where the plaintill's counsel in iipeniiii; lijj j
case stated it as ;i (|Uestioii of legitimaev, ami
that defendant cLiimed under a will, ainl tlit
defence was conducted wit liout the |)nMliuti"ii |
of the will, as if the statement nf tlie .hiiuhI
had rendered that uniicccssaiy : Held, that it]
ought to have heeii produced, hai A. /.'/'"(../I
\-. ^Briiik-cii, 2 (,). H. .'U'.l.
Where defendant defeinlcd ,as the laiidiniil
the tenant in jiosscssion, and the le.<>erni ihej
plaintitl' proved a mortgage in Uv fnmi the \<v
ant himself, Imtdid not fiii'tliersliewiieieiidaiit*!
title to the land, and I'st.-ililisheil im pnv)!yj
hetween defendant and himself, and tli.' ikiHi
dant shewed title paraiiioiint in himself to the J
l.aud : Held, that ilcleiidMiit w.is eiititln! i"
recover. I>iw d. Mnllini:-!,,!, v. J"//. L' 1^1. l;.:;].
The jinaincial st.itiife I Will. |\'. e. ■.'ii,j
vesting in a trustee certain laiid.s lieliiiigiii{; ti'l
the i.'state of the late St. (1., has not the t'ttrt'tl
of raising a presumption of title in the [lartiui-j
lar lands eiiumer.ited in the sehednle Mia.>to|
relieve his trustee from the necessity nfslifiviii
title in the lirst instance. /'"' d. Hnl'linv v.|
St„iir, ;-) (I B. ;{8S.
The plaintitl's el vinied under a will, liy wliidij
testator devised to his widow I.OtK) iuiv.s -
land in Walsingham ; and if he had iiss tliaal
l.WH) acres there, then that ipiaiiti'- tn ho ii»l«
up to her out of his Zora lands i-ileld, tlutj
to succeed, the plaintiffs must pmvo that tli«|
testator died seised of l,0(;i) atres iimr- tliar
the land in (juestion in Walsingham. .'/'"' '''^
«l. V. Amjo; 8 (.'. P. 80.
117:1
EJECTMENT.
1174
lilltilV ill ojrrtllKlil,
:(iv liciiiL; :iii iiil'aiit!,
lit tliu iv('n\ (.'ry lit
I. Si.iiih.ol V. /,'.-,
1st a in'i'siiii lot iiitii
s still I'll 111' li;iil sn-u ]
liii land liL'twiriitiii;
,'ll ill wliciso ^■n^tl«ly
V, ami it was iirnvtil
il lutttT to thf I'lilill-
lU was til jiivc iiiitlit'l
it was lii'lil that till'
1 not 111' R'nnii'i'il M I
t was not siitlKifutly]
ly 111' (lower. /''» 'I
'ri,-);!.
lUiisil ill o]n.niii;; Insj
111 III' li'v;itiiu;uy, ami I
iiiK'i- a will, ainl tlitj
limit till' iiriiilmtiiiii;
■iiinit 111 till' ihuimI
hlii'rslu'\vili'Kiiil:i
Italilislii-il 11" l'"""!
iisi'll', ami tlii' ili'l
Hit ill liiiiisell til
liiut was iiititli'il
riiiiiitifflinit'ijlit cjoctment .against the defon-
1 lit attiT liL' liail iiiiittcil iiosficssion. I )ofoiiilaiit
'.Mipiari'il, ""* limiting l>i'-< tli'lViux', nor stating
tl ' iiitiiri-' of liis own claim, Imt at tlu' sanii'
tiiH' lii: si'i'Vfil a niitiia; mi tlio |ilaintiH"s attur-
'vtliat liL' iliil "lit ili'iiy tlm jilaintitl's titli',
ill li:iil "i^'^^'i "1' ]i<isst'.ssion lit'fiii'c actimi
iiriiii"lit. I'll' lilaintitf ncvi'rtliiili'SH tnnk tlui
r,.i,iil iliiwii to trial : Held, that tlic niiticc
irivcii witli tliL' apiiiMraiii'ii diil not oliligi' tlio
'lilaiiititi t" pi'ovi' at till' trial tl.at tlif ik'ti'inlaiit
' ' j„ |iiis,;L'>!sioii when the writ issiiL'd. J/<(ijii r
,.',,„„,;„/,.., 1,-, I,). B. 4.W. I
rill' iilaiiitilV was entitled to sneeced, nniler
(lii^, |.,,,,jsti'y law, it' a [latent had issued tor the
luiil. a.iil at the trial no objection was taken lor
want lit tinidl nf that fact : Held, that such
olijii'tiiiii 1,'iiidd not lie taken in term ; and,
Quiri', wliL'thor a deed from defendant cove-
naiitiiii' fur title, siilijectto the reservations, ite.,
c'liutaiiu'il ill the original iiateiit, was not some
eviili'iiiT against him. (Idrnll v. /llid'li/, '.) V.
V. 41:
Kji'i'tiiu'iit having liecn lirought against A.,
B, was allowed to defend in liis jilaee. The
iilaiiititfs clainied under a mortgage from A.,
Miisi' title !>• ileiiied ; and, Semlile, that niion
till' I'viili'iiee set out in tlii' ease, the verdict
furtbi' plaiiititl's could not hesinijiorted. I'cchlcK
ffd/.v. Luih-hiiii- ,t III., I!) (,). li. (as.
IVii'iiilaiit being in possession under one M.,
.;.T«il, uiiiler seal, to give up jieaeealile jiossijs-
siiiutiiiilaiiitiU's, together with certain furniture
■ siwlii-'il, within one week from the date, iiiion
tm'i|itiif ?*;{(). <Mi the following day the plaiii-
tilfs ttiiileroil to him •'*!!0, which he refused, and
Ik'V liicii lirimght ejectment : Held, that in
ihealisi'iiie of any explanation it was proiierly
1 Itit tl. 'he jury as importing an admission by
fe'dihiiit tint the plaiiititl's were entitled to
I possos-siiin on paying or tendering the !?.S().
jVifiiW r( ((/. v. C(i III! foil, -20 Q. H. IWA.
in. By I'.MiTK'ULAR r:;HsoN-s.
\. Jiiliii TciKiiifx null 'J'tniiiifn ill CiiiiiDiiiii.
Tenants in eonnnon cannot make a joint demise
linaiii'ji'i'tnient. Dnr d. MrXiih ft ul. v. Siii'ir,
|5M.S.;V.';i; yv d. Sliiili'i-y. Crrl'.r, H. T. H Vi 't
•li'iiit tenants, in bringing ejectment, ii'ay sr y.-
lintlioirileiiiise. /hud. liiirn-irh \. '• iiii'ii , J
I y. 11. ."i4!l.
lii'li'i- the iiM ]iraetice, in ei' ;• n at by one
Ittiiiuit ill eiiiuiiioii against anotlu'i. •■•he 'e the
I ciiiimiiiii loiiseiit rule had been eM'crei into,
[liriiiit' lit an actual ouster was disjii i..sni with.
\l>-lihiiimii V. Jliidiii.^, '2 i). H ; '}.
iiiii'teiuiit in eonnnon nnde: a wil conveyed
I till' Mill lie estate, elaiining it as lieii -at-law. hi
jeMiiieiit liy the other teiiaiits in common
l«giiiistliisgrsntee: -Held, that proof of ai hial
lonstir was unnueessary. S(-)/t ,'t ul v. MiLrod,
jug. K. "174.
I Si'vml iilaintitlH elaimiiig each an undivided
lintmst uecil not prove a joint title, or any pri-
rity, lii't may maintain a joint action upon sepa-
|fatt titlu. Bnulki/ H at v. Ferry, 20 Q. B. TKiS.
Theilefenrontdefemledfor the whole, giving
"onoticenf defeuc' as tenant in commi,;:, uii'-'or
.see. eOcif the Kj. etinelit .Vet, ('. S. V . C. e. 27.
The evidence shewed that she « as entitled to an
undivided niiiii'ty ; but, Held, that defendant
not having limited her defence, the iilaintitV was
entitled to the poste.i. I.crli v. /.<.i'/i il ill., 24
g. 15. .-v.'i.
The plaintiir was held ontitleil to ;cover two
iindiviileii third jiarts, It was iii-Lred, 011 the
.iiithority of Leieh 1: heeeh, 2-1 (.». V.. .T_'l, that
the idaiiitiir being held so entitled, the [lostea
should be awarded to him generally ; but, Held,
not, the proceedings (>ii both sides in that and
other cases having b ;i directed to try the title
to the whole. /,//.>'/«;■ V. H'liiiiiiii; 2(! Q. 15. 2.1;?.
Where the action was against three, and two
elaimed only under the iiilaiit, admitting the
plainlill' s right to two niidivid.ed thirds, Imt
denying ouster : Held, that as the infant's right
to one third was established, the [ilaii'tiH with-
out proof of ouster could not recover against the
others, tiilc/iri.il v. ItnitLinii il ul., 27 ^1. B. ")U0.
2. II ii-iliiiiiil mill Wifv.
'{"hough the wife own the fee, the hnsbaiul
may maintain ejectment on his own demise
alone, but lu must i>rove his marriage. Dor d.
IMi'i-.'iiiii V. CroiiL; ">(,). B. l.'i.").
.A husband entitled to land in the riglit of hi.s
wife, may bring ejectment without her being
joined in the action. /></< d. Klu-rf-iy. Mmilri'iiil,
'() (.). H. .")ir>.
ruder ."('.•(b'o. III. e. 'A, a deed e.Kcented by
husband and wife, but without an examination
of the wile and a eertilicate thereof, is void ; so
that, notw ithstaiidiiig the deed, the husband may
maintain ejei'tmeiit during the coverture. Dor
d. Mrl),,ii',ll,l w Tiriutl, •"> <i». li. 11)7.
Semble, however, that under the more recent
act, 1 Will. 1 \'. c. 2, the grantce'.s iiossession
cannot be disturbed during the lifetime of the
husband. //).
One of the jilaintitl's having married since the
devise to her of the land in ipiestion, under
wl'.ich they elaimed : Held, that she was not
entitled by 22 \'ict. c. .'i4, to sue alone in ejeet-
ineiit, but that her husband must join. ti)na're,
as to the elleet of that .statute upon the husband's
right to po.ssession of his wife's land where ho
IS not tenant bv the eiirtcsy. .Srniilrr v. .Snnilir,
.'•, i). B. \m. '
,See. I of .'{."iXict. e. Hi, so far as regards the real
estate of any married woman v Iiieh is owned
: by her at the time of her niarri,i..e, a]>iilies oidy
to ni;irriagi's which *akc place alter the passing
, of the act. When, tlierefi.. • ' ' 'laintitl', who
married in IS.'il, had lived uimn the land in
I (piestioii, w hieh was his wile's property, from
I 18;)2 until 1S()I, and had then joined with his
wife in a lease to defeiidani for ten years ; — •
. Held, that on the expiration of such lease the
j plaintitV alone might maintain ejectment. Diiuj-
I until .. Aiixliii, a", vj. !'. I'H).
?i. Mi.'tiiii'iur
(ii.'l Mnrli/aiji:!'.
i.'/' )«''»«/.] — Where A.
y<'d'n--if:f J'vr imlii'f or
morty fx:\ Ma ■,)r',[ierty to two persons at diirer-
ent tui.c«i, and died \fter default in the first
mortgncro. -vitaout h ving redeemed eitl. ■ r, and
the tifit ii i"<g«i{ee '.;'ving taken, possession 30UI
)il'
, 1, ;. '
.1 ^f '
1175
EJECTMENT.
117
to A.'s heir for a valuable consideration, who
entered into possession and died, leaving B.
his heir, who was also A.'s lieir : — Hehl, that
the second ni<irtga^ee, having a niortgiige of the
efj'..ity of rcdenijition only, could not eject B. ,
who was in by jmrcliase, and notV)y descent, and
was therefore not estopped by A.'sdee<l. Dne
a. Gilhxj.ie v. Muctiidan, H. f. 7 Will. IV.
Where a mortgagor in possession after default
received a letter from the mortgagee, who was
in a foreign country, directing him to put in a
spring crop, unless he came back in time for the
mortgagor to remove in the sjiring, and he did not
come until the sunnner: — Held, tliat notwitli-
standing the relation of mortgagor and mort-
gagee, defendant, under the circumstances, could
not be ejected while tlie crops were growing,
nor without a demand of jiossession. />w- d.
Patfciwin V. linnni, H. T. Vict.
A mortgage contained the usual covenant to
pay, and that in case of default the mortgagee
might enter into possession ; also, a declaration
that if the mortgagor should make default, and
the mortgagee should, after the time of jiayment,
have given a month's notice, dem.inding Jiay-
ment, the mortgagee might take jiossession, &e.
The mortgagor also covenanted that no means
should l)e taken for recovering possession unti^
after such notice : — Held, that ejectment wouhi
not lie until such month's notice had been given
after default made. ''"yv> v. I/dIiiick, ti V. P. .373.
A mortgage jirovided that" no means sliould be
taken to olitain pos.session until after a month's
notice in writing, after default, demanding pay-
ment : — Helil, in ejectment by the mortgagee,
that a notice signed liy the jilaintitF's attorney,
who was also iiis attorney in a suit lu'ought n]ion
the covenant more than a month before tliis
action, was suHicient, witliout any proof of au-
thority. Ki'i/irorlh v. Tlnnuii^oti, 1(> Q. B. 178.
1). mortgaged to tlie Trust and Loan Company,
and afterwards to .\., who assigned to the plain-
tiff. 1). then conveyed to the defendant, who
took ])()ssession, and was recognized by the Trust
and Loan (lomjiany as holding under them. Tlie
plaintiff brought ejictment, tlierc iiaving ))een
no ilefault under the mortgage to tiie 'I'rust and
Loan < 'ompauy, which contained a proviso for
possession by I), until default ; — Held, that the
plaintiff was enUtled to recover, for 1). could
not in the face of his mortgage, deny A.'s right
of possession, (though A. might be ejected l)y
the company,) or that of the plaintiff as his as-
signee. Hi ill V. MrBvaii, 8 (.'. P. '_'4(i.
In ejectment brouglit upon a mortgage, it
apjieared that before the mortgage was given
defendant became a tenant of the mortgagor for
a year : — Held, that at the end of tliat time his
right ceased, and that the mortgagees could eject
him with(mt notice. Ciniailn /'iriiKiiicii/ litiild-
in;/ anil SitriiKjK Soricti/ v. Ji'umll, IJ) Q. B. 124.
The plaintiff (mortgagee) covenanted with de-
fendant (mortgagor), that no sale of the land
and premises or any lease should be made until
one mcnith's notice in writing should be given : —
Held, that defendant was not entitled to a
month's notice before bringing ejectment. <S'^'-
ivnuoii V. Ciilbevtuun ct ai, 12 V. V. 79.
In April, 188 1, R. mortgaged the land to de-
fendant for $1000, payable on the 23rd of April,
18()3, with interest in the meantime half-yearly,
that the plaintiff might recover Mitli(i\it Inn
given the month's notice, foi li.ivi.ig :u( ir' jti,'
t any
V anil
., .If
\\\mt-
iii.iiV
covenanting that after default ilcfondaiit miolt
enter; that if he should make default, and ,|
fendant should after the time for p.iviiunt h '
given written notice demandiuL' iiaviiiint ,„ i ^
11 Ai 1 1 1 1 * . * ^' '"''I a
calendar month sliould have clu]i,-i,il wit),
payment, defendant might cuter mkI Icn.vJt'
sell; ancl defendant covenantc<l that im sal- '
lease should be made, nor any steps takin l"
him to obtain possession, until siicli notice Nlinnfi
have been given. There was a iiidvjsn t||A
until default after such notice 11. mi,. Ik k, n
]iossession. In May, 18(il, <lcfeiiiLiiit '^i.^simu
tliis mortgage to the plaintiff. !!. in Adv,.,,,!,^,,.
18(j'_', being in possession, leased to iloliii,|.,|,J
for two years, and in Dcccniber tnlluwiiiH i,,
conveyed his ecpiity of redem])tioii to tlir plaiiitiu'
Nothing had been paid on the niortga-c. Iii.lulv
I8(!3, the plaintiff' brought cjcctiiiciit : Hilij
iiig
11.11 my ac( 11'- . I '
land and lost his claim to the debt, tin , Hasn,,
one on whom a demand of paynuiit odiilil 1^.
made. Kvvkli v. Mdi/hii', -''.i (/. H. •J74.
By a mortgage in fee to securi' payiiKiit .,•
•SI, 490. 42, by monthly iiistalnieiits, it' was pr,,
vided that the moi-tgagor should Ih-cihiii' ti'ii,ii,t
to the mortgagees thencefoitli at will, at tlniiiit
of one pepper-corn montidy until default. ai„|
after default at the ycaily ivnt ol .sMiiiijj!
pyable monthly. There was also a |ii-ivis»tliat
in case of default the mortgagee'!, w
previous demand of possession, i. ' ,
sell. t)ii ejectment by the inort^ s, i
fault, against a lessee of the iioif.'a'.
(pient to the mortgage : -fich , that li.
to (|uit nor demand of pi ssusio i was nicu.-i. rv:
that the conibine<l eff>"'* of ho two cliuisis Wiy
to create in the nio-.tgagor a >;ii ililicil tuiiaiiryat
will, and toenabl'jthe nKutgagcus at their Hptmii
either to distrain or at any time tn ckit the
mortgagor hinisdf without demand; lait tkt
the mortgagor's icssce, not having lieenaarptci
by tiie n.ortgagees as their tenant, was luitm-
titled to a denian 1 of jiosscssion. If the iimrt-
gagor hail been si iijily tenant at will ; .SinlJo,
that the mortgigces might have tivateil the i
lease by him t.i di I'.'iilant as a deteniiiiiatiirii
of such tenancy. ('<tn.i<ln l'cniii,:'nit ISnililmjl
and ,Siiriiii/s Soficti/ \. /i.,'i'rs, !<)('. : , 4;;i
Other ('(i«'M. ]— Where a ii,'"'*L'-,,'<'e has neither j
taken possession of the land after default, niiv- ;
eeiveil interest within twenty yeais, the title is I
in the mortgagor; and the inortgageo, it suai.'in
ejectment a third party in possessimi, miy i*
nonsuited. J>o • d. McLiaii v. Fiili, S Q. B '.'iCi. j
Helil, that a receipt of Is. in full nf il'.m.igej j
and costs, in an action in debt. Idiimleil iipmithel
covenant in a mortgage, did not operate as are- j
conveyance of the estate so as to defeat an tject-i
ment brought subsequently upon the saims .n-
rity. Carter et al. v. Mrl^Kiirin, S ( '. 1'. -111!',
Defendants mortgaged laml to the phiiitili'sfirj
£87"), jiayable on tiie 2t'{rd .bine, IS(i4, ami iiifertst j
half-yearly, on the 2.'b'd .lime ami benmlw,}
with a proviso for entry iiy the nmrtganeeii after!
and possession by the mortgagm-.s until ilifaulf.r
The interest due on the 2;(ril of .lime. ISiC!,!
being in arrear, on the lltli of I )ei'enilu'r f"llow-J
ing the plaintiffs brought cjei'*.iiie;;* I'oienf
dants' attorney paid the in^ urest up tn tin flni
of that month, and on tin 2!)tli nf Jiil.v fi'How-!
ing, the principal not iiaving heeii iwiil, jmlg^
l\K\l '''
ik'foiiil;mt iuii;lit
(k'f;uilt, liiiil lie.
or ii:iyiiiciit luivt
^ |iayinciit, ainla
L'lullMid wittiipiu
iter Mid k'iiH' i,r
!(\ that no sik Mt
ly stvjis t;iki'ii liy
iUeh iKitio'shdiil',!
8 a imivisn tliit
;i; i;. might li(;l,l
..■ffiiihint a.^sigitol
It. ill XiiviinluT,
iSL'd til dek-iiilaut
111 KM' fiilhiwiiii; Ik.
,i(in til thrpliiiiititi'.
iii(irtj,M;.'(j. Iii.liilv,
L'JL'i-tliKiit : IkW,
\-n- withiiiit h;iviiig
lavi.ig aci ir . Ul^i;
' (U-lit, tlu HM.MIM
]i:iviiKiit I'liulil In'
{ (). \',. ■J74.
sufuiv iiayiiK'ut nf
,liiuMits. it was |ir"
Klllhl llUIMlllll.' tWlllIlt
h at will, at tln' ant
f until dft'aiilt, ;iU
IVllt of Sll'.UI-k'.
as also a \ii'ivisiitli;it
;,naj.r'.'("'. w ''• ;uiy
ion, ,• ' '■■ ''Viiinl
uortj, ■•», 11 1. 'It-
Ir' ni)i'tt;agoi miIih-
Hoh , that 11" ii'iiii"
isio 1 was iii'a.'St,'iT;
he twii I'huisfs w;i,i
n ,;il,dilii--d tiililliiy ;U
tgajjet'sattlu'irMiitinii
y time to cIitI the
lemand ; hut that
aviiig heeii iii'oifcl '
tenant, was ii»t tii'
,ioii. If tliiMimrt-
lilt at will ; Siiiil'le, ,
it have tiv;itt4 tlie '
as a deteniiiiiJti'ii
t'n-iiii.-.'nil li'iMiii
lite. ',47:!.
.■•*-L''..;eeli:lsiiiltln'r
, after default. "iTt-
.ty years, tlu' title is
iiiiir'tgagee, il><uin:'iilj
iiossessioii, uwy Wj
v'am, oQ.B.a;
I. in full (ifil:!m;it'«|
jit, founded iii"iii the j
I not opeiato ;is a K-
as to defu:it aiu'ji*
u)ioii tlio sauii' .< ♦
'»/■(■/(, 8 C.l'.-lliV.
mdtotlieiilaintiffsiorj
uiie, lSli+,imiliiitertstj
line and Itwviiilw,]
the nuirtgiVUft'i' att«rj
irauiirs until ilfl.mlt.f
'l>;h-d of .luuf. l'*'^4
i,„f l)eeenilKTf"ll*|
EJECTMENT.
1178
t;
ejei
iii.irest up to till
•2'.tth
nuj5
itiit w^w entered for want of iipjicarancc, iiinl a
ritef '"''*• '''^'' V"*^- i'*"'*'-''!- I'efuiuliints' attor-
,,■ swore that this p.iynient was aceuiiteil in
iitisfaetion of the suit, wliich the plaiiitills' \
attiii.iey denied :-Hehl, (reseinding an order'
imiile ill ehainUersI, that the jndgnieiit was regu-
1.1 fiir the admitted default in the interest
•..till the land ahsoliitely in the ]daintitl's, and
,|„, sulisei|Ueiit iiayinent ennld not divest it ;
1 .iViidaiits' only remedy lieing an ajiidication for
r^'lid nmlw- the' 7 (ieo. II., c. •_'(), or under the
h-t lii'oviso in the iiiortg.ige. daai/i r(- il <il. v.
II-,//,,,., ,./,,/., 24..). K :{!'.
TJio iilaiiitiir lironglit ejeetinent on the (itli of
,;^,,t,.inliei', 1S(!.">, elaiiniiig under a mortgage
'■ ',,i\V., tlie then defeiiilaiit, ill whose |ilai;e M. '
WIS idliiwed to defend as landlord, elaiming
uiiJi'i a mortgage from \V. to Mel. assigned to
him. The iiioitg.ige to Mel. wa.s given on the :
i|.]i y,,vcndier, ISfJl, and that to tlio jdaintill"
|,„ till' -'l.-'t of March, IS(U. On the '-Mstid''
Sviitviiilier, ISIi.'i, .Mel. hy deed, reeitiiig an in-
tcrli'iiitei'V 'It'^''''^''-' '" ehaneery, in resjieet of the ,
t„rtiliisure of W.'s mortgage to him, I'onvi'yed
tiiM. as W s ajipointee, and on the !)tli of So-
vt'iiilvi', li''i"', 1'^' 'I deeree in the same- suit, this |
„j,i|.t„ lire was liieilly foreeloseit. It was eonten-
,lfilt1wt tlie mortgage to Mel. had merged in '
tliiiiiliirit'iiiee, .■mil eould not he set iqi against |
tlif iiliintilf: Imt, Held, that if it were so the
ijji'.ililf eiiuld not reeover, for when he lirought
liiiaitiiiii lie was li irred liy the mortgage, and
ciiuld not avail himself of what took jdaee
I aitvrwards. MrKnii v. J/<K,ii/, i'l (). K l.'iX ^
A iniu'tgage of land given hy an infant is
viijihlili' iiiily, not void, Imt it iinty lie .avoided
il,nii:;iuf;niey, ami defending hy a gu.ardian an
acti'iiiif ujoetmeiit hrought hy the mortgagee,
is 1 suiKcieiit aet of avoidanee. (•'i/c/wisl v.
fc',„>, ;,,./-(/., '.'7 i,». H. -lOO.
IV. ri;.u rir.M, I'nocKDrnF..
I. P<ii-f!(-i.
(a) (uii'Titlfi/.
/'/.lid/i/Kl- Qua're, as to the ett'eet of a niis-
■ ■liiititl's in ejeetinent under 14 & I")
,;4, '' <!</ (I'l. v. .S'.'-/'/''', 10 (,>. li. :{7-2.
jjoini'; ■
iVic. 1'
/' '.iiiliii'h.] '^."'iore sever.al tenants oeeii|)ii'd
■itap' itnicnts in oo'^ house as several teiie-
I liiei'(s. I'l' that !i dingle aetion might lie
Kuiiiiij:.. I '> premises, serving eaeh tenant
I'u :'. iiM;) iiiii ni'^'eo. J)oi- .1. /id/ v. J'lic, 3
|0,S.li4 '
1'iiilt.T tl '-■ old jiraetieo, the faet of defendant
Ikiiig twiiuit in possession in an aetion of ejeet-
Kiit. mu'.il 11 >t h(} eontested hy allidavits on ;i
jlKHna ta set .side the serviee of the deelara-
lUaiM iiiitif'j. Senihle, that all the tenant
MJil il» v.M'j to ask the court to excuse him from
liiig jMissessioii, and to reiinire the jilain-
i'l til imive it. ]>i)i' d. VdiicDtt il III. V. Hoc, 5
!.B.'J7i-F. C.-Maeaulay.
.\ii pjectiuent sniionona iiaving heen served
i. aiiiH'.. ^ only defended, and R. allowed
'"..•.. to c hy default. The plaintitl' ob-
..tii 11 vtrd'.c , and issued a liab, fac. and
^^^ L fa. for ensti against hoth, whereupon B.
f ,Iuly follo*'5(Mr' '''"scti'. aside as against himself, or to
heen iiaiil, jiiilg-|^^^''° '"« r.r.;r.,! struck out of the proceedings : —
{'iCi
Held, that the phi'iititT was right, for as to the
hah. fae. if 15. claimed no interest in the land,
ami was not in possession, he should li.ive applied
on receiving the siinimons to have his name
struck out. /yArrii v. IIA/Vr, 24 i). 15. 'uO.
In an aetion ag.iinst a lainllord and his tenant,
the latter being in actual jiossession : - Held,
though with niucli doubt, that the name of the
tenant might be struck out of the proceedings.
K,rry. II -//,/;,•, 7 o/., 4 V. 1!. l.'iS. ( '. L. » haii'ib.
- A. Wilson.
houbts as to the pi'iipiii'tv of the |iraetie;' laid
down ill DAicy c. White 24 <,». I'.. ."i70. //-.
• .)na're. whether when -\. is in [lossessiou as a
hired serv.int of I'., a writ of ejectniint should
not be dinieted to tiie latter. /'i';'.-o»s v. Firrilii/,
21 i (.). 15. •!«().
A writ of ejectment was issiieil against defen-
dant, who (as was .alleged by tlu' lilaintilf and
not denieil by the defendant) (dainied to lie
owner of the land. The iiossession was v.icant,
and it was not sin wii that deft.'inlaiit was last in
possession : Held, that defendant was entitled
to have the writ set aside withimt d.iselaiming
title. ll'o/A/ir V. Am; 5]'. i!. 142. ('. I..
( 'liamb. jticliards.
The lljectment Act, ('. .S. \' . {'. c. 27, changcil
the procedure rather than the law for the re-
covery of land ; and therefore the right under
the ohl practice, to make all persons found iu
possession of land defendants, without reference
to whether their possession was joint or several,
still exists. Jiniiin riniiii v. Jhn-.tmi, 17 (.'. P. 257.
The disclosure by one clefendant that he .iccn-
pies a pirt of the l:ind elailiicd not jointly w ith
another defendant, does not entitle him to have
his ii.-ime struck out of the writ, ami oblige the
plaiiititf to ]iroceed against the other alone ; but
the aet provides .i iiiode by wliich every one may
defend, by limiting his defence to the particular
part claimed. //).
Under the Married Woman's Act, 1872, a wife
may be the sole defcmhint in ejeetinent brought
to I'eeover possession of land owned by her hus-
band, who is permanently resident out of the
province. iro;';v/( v. Cuth r<-ll, S L. .1. N. S. 24,").
- (-'. L. Chamb. l>alton, C C. .[■ /'.
Where a wife, living a|iart from her husband,
is in Iiossession of land, under such eircuiiistancea
as iireclndes the ]iresiiiiiptioii of her being agent
of her liusliand, slie must be made a defendant
in ejeetinent for the laud. Wuiiilinitil v. Cum-
iiiiiKi-^. t; 1". U. 110. -('. L. t'hami). -l>.ilton, C.
< : .(• /'.
One defendant in ejeetinent is not entitled to
have his name struck out at the trial, on dis-
claiming all right to possession, in order to ho
called as a v, itiiess for his eo-defeiulalits. (>'ro-
yoii V. At/iiir if III,, 14 (). 15. 47'.l.
Where a person made defendant is not in pos-
session, and claims no right to the land, he is
entitled to liavi' his name struck out. Hull v.
Yiiin, 2 1'. It. 242.-C'. V. .
The name of a clefendant who disclaimed all
interest in the laml excejit asdowress, struck out.
Wi'iinr V. liiin/iys, ."> 1'. 1{. SO". ('. \j. Chamb.
— Kalton, ('. C. ,(• /'.
•See {lav)tir\. Loi"iiili;-i, l.'i Q. 15. 4.'50, p. 1158;
Burnham v. Junes, :}2 Q. 15. 83, p. 1179.
; ' ■■
iir, I
i^
IM
m
m
m
m:"^
EJECTMENT.
1180
Writ ii/' Siiiiniiiju<.
(a) Serrkr of.
(b) Otl„r Chmcs.
St'iublo, that in ejcctniont it is iircin^lir
On Al.s,„t /V/V/uA;»/.l-Thc writ iiaviii- l.eeu '*?'"; '^ ""* ""*."f *'''' "♦''''^' "^ f'^' 'I'pmvderk
SLTve.l ...1 .lululiilaiifs witV, Uvuuj; in i.o^^^rssi.in, ' 7 *"•', '•'■"'^*" "• ■■"' .""^'■'' i'"""t.V. r.,lli„„ ,„„„
an.l stating' that liur hushand was in the I'niti'd ! ''f ^'"''"'t to enter Ins ai.poarana' in tliiitomiltv
wlien tile huuU are situate in aiiiitlnT ,,iiti.'
eounty. In this ease, liii\vrvi_r, thr ildiii.li'!
having; aiijieared and allowed issue to lie iniii, 1
the eonrt refused to interfere, luavinj; liim ( , i '.
writ of error after iudgineiit. '/V»\/ n,,,! /,„'
< 'iiiii/iiiiiiiv. ,S7,-(v ».••■, -2 ]'. 11. (•)(). I'. ( '.^ -niolimi?
States ; under tlu' ]iartieidar eireuinstanees nf the
ease in ordi-r was made allowiiiii the servue as
(if the date of tlie order, (.'ulll' , I nl. v. Mm-fi",
7 I.. •!. lit. - V. \.. ('hand).- liurns.
Wfitiil I'nsxi .-i.-iinii. ] Kjeetnient as on a vaeaiit
IHissession. It was shewn that there was a house
on the jireniises and some artiek's of furniture
thereon, and that the tenant lived near. 'I'lie
eourt si't .iside the j)rofeedinL;s on eondition that
the a)i|)lieant, who elaimeil title as landlonl,
should aiHnMiand defend. /'"i./.f, n; //d. ( 'iijir'ol
V. Ali'intt, ."» (». S. (il.
Held, niion the nuts diselosed in the allidavits
tiled in this canst', that the jneinises tor whieh
the aeticni of ejeetinelit was liroULfht were vaeaiit
when the aetion was I'ommeneed, and that judg-
ment as on a vaeant possession was duly oh-
tained and entered, //imy.y /• v. Ihirh n, 1 1.. .1.
\. s. TiX V. r " "
'I'he snminoi
.1., on the L'Otl,
By nailini; a eo;
was a wild lot : '.• i'.
(hint's liriitluT, \\ ho ' .
dants agent or aiithon/i
him : 8. Hy serving a eop;, on one K. at ilefeii-
(lants late resideiiee. I'pon these nihdavits an
order was made anthori/ing the plaintitl' to pro-
eeed hy signing judgment for want of aji|iear-
ance, whieh Mas done on the l27tli of Ajiril.
I>el'endaiit hail heeii in i-!ngl.iiid sinee lleeenilier,
IS70, and having I'eturned in .luly, he moved in
the next term to set aside the order ;uid iuilg-
t'haml). — I'raper.
as sued out against defeiuhint,
nni'M-y, !S"I, and served : 1.
■ u])oii the l.ind, whieh i j,!.,!! ,
.■ing a eo])y on defoii- ■ ' '
•t shewn to he dcfeii
to aeiept serviee for
The eoniity marked in the iHar<'iii is tn 1
taken as the eounty where the writ Mas isMii.l
and not as the venue laid in the eause. /,';,/,/,))
\. liiUiii,-lC L.y'\\\mh. l',)S. I'.uiiis.
'I'he fact that a writ of suiiunons m eiertiii,, ,,
in some respeets varies from the |iriirii„w,„
whieh it issm>d, is no ground for .settiii" ?m,\
the writ, fiu'the pra'eipe is no step (.r pidj^.viljj,!
in the eause. (•'riiii-tlmirr y, H7,/V, , ;^ ]• |; •j.)|j-
— C L. t'hamlp. Draiier: Cnit,,,) v ]f,-i\'i'',
7 L. J. '2r2.
A writ shimM he endorsed witli the iniiio an'!
ahoile of the attorney .actually siiins; mit the
same, whether he aets as agent I'cjr tlie~;utiini,.v
or is himself the attm-iiev for the iiliintitf'
II'- /,.<'./• V. ^•.>/v, 4 v. \l. l(i!i. (• ■
I., flwml.-i
:?. .v-./;.-. .,/• Til/,.
[Ihl .Hi I'lrl. r. .V, .<. i;:, tit, iiuth-i iiiiiiiiii'ira,,,.
tiiiii mill niiinl)ir of iiioilcx in ir/iirh till,' l-t mi iii}]
(a) Form n/'. Km/ l\;i,'ii,; ,
In ejeetmeiit for hreaeh of eoveirint iiult.ise,
the noti<'e of elaimant's tith' sliniild set mit the 1
partieular eovenant whieh has heeii hnikiii aii,l
nieiit sigiietl under it, on atlidavit denying that the ]iartienhirs of the lireaeli in Lreiieial t.niis.
he had ever had posses>ion of the laud either hy
himself or others : Held, that the rule must he
ahsolute : tiiat it was aea.se of v.ieant possession,
lint no reason was shewn for making .1. a defen-
dant, and no serviee hinding upon him. linrii-
lliilil ,1 III. V. Jiiiirx, :i2 i). \i. .S.'i.
Dt/nr f '((X' X. 1 It is not neeessary, under 14 &
1.") A'let. e. 114. to read .lud explain the pui|iort
of the summons to the ji.vrtv served. A'/'-AA //.v.
Jiridi; 2 ('. K. Chamli. IDS.' Hums.
Serviee on a tenant of jiart of the i^reiiiises,
who was not named in the writ : Held, had.
/,',fii,r v. /lri,.-<,,i,. 1 ]'. i;. •J-Jl. C. L. Chamh.
Turns.
The atlidavit of serviee need not state that the
eojiy served w.is endorsed with the name and
residence of the attorney, mu' that sueh emlorse-
meiit was made on the writ within three d.iys,
n(U' that the servie,' was etleeteil upon the per-
son or tenant in possession. Where sueh writ
is tendered to defemlant, and placed uithin his
reach, and its I'haracter I'xiil.iineil ; Seinhle,
that this is a personal serviee, though he refuse
to take it np. .Unr/in v. .Vrl ■/lor/r.--, 'j.', (). H. •_'7i».
The person serving need not make the en-
dorsement of serviee within three days, iis
reipiired l>y (". L. 1'. Act., s. ]!>, that provision
not a](plvinj|; to ejectment. Lomiii v J/iij(iiii'', 4
I'. 1{. :{4<)."C. L. Cluuul). Drajier.
[See, also, IV, 7 (a), p. 1187.]
■'.'/, '
I- ■!. •-".!. C. l..(h.iiiK
A'' mil i/v. SliiKijhiii
— Burns.
It is '-nly necessary to st:)te how tlif nirtyl
claims, as hy conveyaiiee, dcseeiit. &c.. aiii! trHiiij
wh(un, without exhihiting the whiile chain .
title. Volt mil II \. Uroini, \{\i}. \]. ]Xl
AVliere a landlord is allowed to apiie.-ir insti:dj
of the JM rsoiis named in the writ. iMtlccdf titlej
need not he served. //iron v. /■llliuli, 1 1.. .1, X.J
S. l.")(;. -('. L. Chamh. -A. Wilson.
In ejectment it is not neee-^sary tn aiiucv thel
iiotii'cs of title on either side to the issue 1 k.f
Ciiiiiiiliill v. /'rt/il, ■_>(; (.). K .-)07.
An ohjection that the title ri'lied mi isiinttliej
same as that nielitioneil in the notice, cMiiii"; !«|
taken advantage of after the trial. /'m.-^'J'iI
V. /h-oiriiln; I'S (»). H. IS',1.
(1.) />•// /'lllilllif.
In ejectment for ]iart ej' l'l' in the Sth ciin.!
of Hamilton, deserihed .as extemiiin.' tn thi'el|,'^
of Bice Lake, it was proved tliat tliiic wa-l
concession in the original oiiirvi'V nf tiic t"«iiJ
shiji, (called the !)th,) hetweeu the Stli itn tlif
north thereof) and Hi(.'e hake. The iiLiiiinf
l)roved that the i)atent under which he trw
title deserihed the 8th conce.ssinii as extv
to the hank of Bice Lake, hut the dce.l t.'hinil
self only stated the lot witlhuit giving iiiit«(
1181
EJECTMENT.
1182
ail'
• niarj^iu is t,, K
11' writ Wiis isMi.-.l,
tlu' r;lUSO. A';././, '
liiiriis.
iiinciiis 111 fji'ctiMi . •
III! tlie linCci|lf n'.;
il for si'ttiiii; ;Mi.
1 sti')l nl- imu'i'dll!;
Wliii,. sr. l!.:tti
L with till' 'il:lIIU' Mill
uilly siiiiiy (mt the
L'lit I'oi' tlu- attoriuy,
r tor till' iilaiiititf.
!t. ('. I,. Cliiin'' -
U lt"f'fl'' ttlitll ll'iti' <•</((. I
iHi'iiJi I ill i< I'l lip.] 1
if I'dVi'iiMiit iii;i n;isf.
fir sliiuili! si't nut tilt ]
|in> licrii liiv'kiii and j
li ill ui'iicral trniij,
l.-".l." ('. l..l'll:lllli. ]
stato llnW till' i':.ny|
'ci'iit. &!.■.. ami tr.iiiij
thr uiidk' I'luiii '
(1. 1'.. i:!;i.
■,1 til aiiiK':ii' iustiiill
writ, iiiitii'i'"! titlij
V. l-yin.ti. 1 1..1.N".
Wils.m.
(■t'^sarv to aiiiii'X 'li«|
li' til till.' i-isui' 1 t.f
:io:.
. i-i'liril nil is ii"tliie|
tlic ii.'titr, i:iiir,"t Wl
\w ti-ial. I'l iiii'f'oi
■xtoiiiliiii.' til the
cil that^tlKTi' was
..||l-Vl'\ lit tliotnw
■oil the Stli ito taj
Lake. Tlu' itonf
iiU'i- which ill' tnni^
ncesiiiiili as i'N'i»'H
but till.' ih'>''lt'
Iwitiiiiiit giving iiii'ti
miuls : -Held, tliat although the sjiucilii'
Ks-riptii'ii i>' t''^' I'iitL'iit, and in it the i,'oiR'ial
1 .'iri itii'ii "t" *'»' ^"t' ^^■'"'•I'l l>i'"'>alily j^'ovoiii,
"J'jlij, ■.luiiititl' liaviiii; in liis imtii'i' <if title (Hily
■'■himt'il lilt '-'- ill the Stii e.meessii.n, ivlieivas the
\'.. ,,,„teiiileil fill" "''s in the Hth einieessidn, the
'I'tViii'liiit was entitled tn a verdirt. //. /<'/. ,:--iiii
t'lhuri^. IOC. r.:574.
\ liiu' 11"' "ithiuit le.ual antlmrity lietweeii
l„t', a ami '• ao|uie.seed in fur years, ^va^
siilise-
" iitlv I'l I'll" ' t" ^"' <-'!'''' ""'"'"*• •""' anew line
"''' run acviinlin.i,' to law, which timk aw.iy land
fri.m tlu' siilM"'**^''^ h>t ."), .ind added tn (i. I'lain-
(T <iiii 'lit til reeiiver the laml sn taken, whieli
".. cloarlv a jiart "f lot (i, olaiiniui; riu'ht liy
".Isessimi. thiin,i,'h his grantor never |ireteiideil
'•"Tivoaiiv riiiht thereto, and he did not ehiini liy
!^;i<.i!iiiiiihis iiotiee; Held, that the iiiaiiitiil'
'' 1 li-iviii'' "ft up a possessory title in his nntiee,
',., lU'liaiT^'d tVoin lining so at the trial. Sunf/i
v'r/K/M', IOC. I'. •">:i'^-
The eliii'iiaiit is entitled to set n\' .uiy niiialier
.• ^.„nvi.Yaiii-'es from the grantee ol the emwii of
rcsiiiitiv'o i"irtiiiiis of the land elainied, sueli
\^ii Imt one niiiile of title set nii. 1 1 nm^iunr v.
irp.. i-'c. !'■ ■•-i-
riie iilaiiititl', deseribing lierself as executrix
■■ s, ilainu'il title by virtue of "a mortgage
. 1.1,1'V the ilefeiidant :" - Held, that she was not
I .f-iti'l til )iriiiif of a niorti;age made to herself.
ii'i-iui'lit shew one to the testator, and her own
mill as iVvisee : and that omitting to name the
1 iiiiin'ii:.'ee was at most only want of " reasonable
[«rt,mUv." I'er whieh defeiid.ant might have
1 awfe'l iiinlei- see. i;{ of the Kieetmeiit Aet, C.
\j\ ('. e. '!'■ 'Pile addition of " exeeutrix of, ''
jictiitlie (ilaiiitill's name : llehl. mere matter
joiiescriimiin. Sk'n/inii v. H'A. /o//. -.'4 (,i. t!. 174.
Ijiwre. whether in this eoiintry. owing to the
Ipiwisimisas tn notice of title, a jilaintitl' must
"iveimtieeof his claim being only for a moit ty,
fieiViri' ho can insist uium defendant admitting
lis daiin anil ileiiying actual ouster. I.;ist, ,• v.
^.i»(..:;..'2t>Q. W.'-lXi
Tlii'iilaintilV. by his notice, cl unied as devisee
oil'., ileleiiilaiit, iindei a slieritl"s deed to one
M„iiiiiin a li. fa. against F. 's land. Ilefeiidant
iuviiiiiliriiveilsueirdeed : Meld, that tlie iilain-
titfiHiilil luit in answer, under bis notice, rely
iliniitwiiity years' iiossession held by him siib-
W|iiciitlv : ami ilefeiidant having been in jios-
Kssimitighteeu years, the court refused to ;illow
til auiMiilmeiit of jilaintilV's notice. /■'/'. /./s v.
liiiu.yUin.l.d., 17 C. 1'. IT).
Helil. athnning the judgment of the I'ourt of
(liiiiiiiiiii Pleas. 17 t '. i'. 34 1 Iraper. C. .1. . Van-
KmvJiiR't. ('., ami Hagarty, •!., diss, -that a
iflamtitf having by his notice claimed under V's
lojid' title, eiinhl not, in answer to a lease of
'iqii'«iiisi.'s fi'iiiii him to defendant set uji by
litur. Illy uiiini the forfeiture of such lease
iMisHii iif cniiilition broken, but that, to en-
itlvhim til take advantage of .such forfeiture,
have alleged it ill his notice. I'ltti-
•(■«-\. Ihiijl,, 17 ('. 1>. 4,V,), ill appeal.
Tlie ilmtriue established in the last case, when
It likiiitiH' claims by reason of forfeiture of a
■nil, .ijnilies also to a plaiutitl'elainiiiig to avoid
'■.isiMintbe LToiind of infancy. Jlniiilmni
£-'.•'-;/, 19 C. P. 13!t.
A. entered into possession under 1?., who ver-
bally |proniised him a deed, to be executed as
soiin as he himself should receive a eonveyaneo
friim M.. whose tenant at will he was, and who
had in the nu'antime died. In ejectment by H.
against A.'s heirs: Meld, that 15. having en-
tered under M. originally, notice of title "under
M., who claimed title from the crown," was
sntlieielit to en ible M. to reiMVer. Pettigrew r.
Doyle, 17 C. 1". ;f-J, 4.")(>. distiiiuuished.'" .!/■;»-
.iti-iiiHi y, Anii!</riiiiii, 'Jl C. I', 1.
See /'»-,/. //v. //o.Ai/i, iVi C. P. 17."i, p. I'JOI.
(cl /,'// l> hliih'l,!.
Ilefeiidant will be allowed in the notice re-
iplired by the C. I,. \\ Act of l.S.")li, s. •_'-.;i, to
set up a pajier title, and also title by iiossession,
upon atlidavit that lie can est.iblish biitli titles ;
and that he wishes to establish his pa]ier title, but
least hi' should fail in doing so from being unable
to procure tlie iiecc>sary witnesses, he di'sires
also to set up title by |iiissessiiiu. Leave will be
granted ex p.arte in tirst instance. 'I'mhl v. Cuin,
•1 I.. .1. •.':<•_>. C. I.. Chamb. Ihinis.
Where defendant's notice describeil the l.iiid
for which he intended to defend as it jinii of
till liil nil iiliniiiil III till irril, he was not allowed
to contend at the trial that w hat he defended
fur was not included in such lot, and therefore
iiut pl.iintili's ]irii]iertv. Durliini v. U nl/in-i, !)
t^i. K till.
-V notice of claim under the statute, may at
the same time deny the title of the plaintiH's
and shew in what respei't it is defective, t'niii-
iiii rriiil I'lrniiiiii lit liiii/iHiii/ Suriiti/ y. I'mi-iU, '•>
L. .1. iSO. C. L. Chamb. 'Hicliards.
Where defemlant in his nntiee claimed the
whole jireinises under a conveyance from !>., he
was not allowed at the trial to set up that he
was tenant in eomnion with the plaiiititl', ami
insist iqiiin jiroof of ouster. J/rCiiHinii v. lii>.'<iri II,
l.-)t,>. U. -M-X
((•iia're, jier Itobiiison, ( '. .1., whether, if de-
fendant aiipears, but omits to give notice of the
nature of his title, the ]ilaiiitill' may sign judg-
ment as for want of ai>pearaiice. //iir/nr v.
I.i.iniil,.<, I. ->(,). H. 4m
Where defendant, by his notice, besides deny-
ing the )ilaintiH "s title, elainied to hold under a
lease : Scuible, that he was entitled to shew an
adverse possession by himself for twenty years
in order to defeat the plaiiititl "s claim, although
the etl'ect might be to establish a title in himself
of which he had given no notice. Hill v. .1/c-
Kiiiiinii. 1(! (,». H. "JKi.
Where defendant, in his notice of title, claimed
as jiurchaser through one M.. and the plaiiititl',
in iiroviiig his title, put in a lease from one M.
to iiimself : Meld, that it was unnecessary for
the plaintitV to shew M.'s title. liriiinliiii v.
Cnrlhunii. lit ^», H. ;i((8. See, also. Curtirriiilil
V. Mrriiii-iiiii, -20 l,t. !i. -Jol.
The notice of title eontines the claimant to
proof of the title therein stated, but allows him
to defeat by any means the title set uji by the
defendant ; ami in like manner the defendant is
conlined to proof of the title claimed by his
notice, bnt may eijually <lefeat (and that without
going into his own title) the title set up by plain-
Lai
wm.
li8;i
EJECTMENT.
Hat
tiff. AVhc'i). Lliereforc, the plnintiffs, clniniing'
by tlioir ii.itice niuliT a. grant • mIu the crown, !
had i)ut in such granc, it wa odnipctcnt for do- '
fcndant, tlioiigh his notici' chiinicd title in iiim- I
self, as dnived fnmi one A., under a h'asu from :
the iilaintiffs, to rely ujion ]iroof of such lease
alone as defealing the iilaintilis' title, without
]iinvingan assignment to himself. '/'Ik Ciniittfo '
CoiiijKtii;/ V 11 (■/•. 7 «'. P. ;i4l. I
Ejeetnient for lots l.">, I.S, \- X. A I'.', in 'Jnd '
con. of Sandwich. The defendant in his notice
ol title, /" "ii/i s ill ii/iiiii/ 1 III' I'liiiiiiiiiil'-'i Hill', t'l.'iinied
title in himself as their tenant. The )ilaintifl's,
under tiiis notice ni defence, elaiineil tliat the
defendant « .as tliereliy dt'liarc<l fl'om dispnting
their title as landloid, and liro\i'd a recei]it for
rent in fidl to .'list of March, ISIil. The defen-
dant in reply jiroved his tenancy : -Held, that
the case ot ('artwright r. ^IcI'herson, :2() (,». r>.
'2ii\, uyim which the jilaintitls relied, did not
relieve the iilaintitl's from the ]'roof of the deter-
mination of defendant'.s tenancy, although it
Avas evidence to (stoji defendant from denying
that he was jilaintitls' tenant, ('ulln/i/ nl. v.
Willi, rj ('. r. !t.').
flelil, that the omission of the words, '• he-
sides iknying the title of the jilaintill" in the
(lefcndant's notice of deft nee, did not entitle the
plaintill' to recover without judving the title
statt (I in his notice : Held, also, that the ap-
jH'aring of defendant at the trial, he having tiled
an a]ipearance v ithout any notice of defence.
Would eijuali^ the plaintiff on Jiroof of his
title; hut h.niig proved his title, defendant
would lie deliarrii fr ni giving rehuttal evi-
dence. SI,'., -I I'l III v. Mi( iihi it III., IOC. r. iK).
Defcnilaut . 'erei an ajipearanee without
tiling any notice of tiLle:— Held, that he iculd
imt at the tiial set up a title in himself hy jios-
session, the eli'cetof his appearance lieing merely
to ileny the title of the claimant, and allow
him to make any answer to it which did not
assert title in liiniself oi' in any one under whom
he claimed. In such a ease, the jilaintiff must
prove a strict title, and, defemiant may shew
that this title has not heen perfectly proved, or,
licing proved, he may shew a better title in some
one else, hut not in himself, or in any one under
whom he claims, hinki v. liiitth', 17 C. P. 47S.
Where the idaintifl claimed as assignee ot a
nnirtgage made hy defemiant, and defendant 1>y
his notice claimed under a deed from the mort-
gagee : Held, that defendant might shew that
he was an infant when he executed the mort-
gage. O'ltinx. Wliililiiiid, ]() Q. B. ."lO.
The defemiant, in his notice of defence, hesides
denying the claimant's title, claimed title as
tenant or liy pcrmi.-sion of the tenants in fee of
the land. < >n the trial the plaintiffs, having
proved their title, ohjeeted to the defendant
tjeing permittccl to go into his defence heeanse
he had denied and put the plaintiffs to proof of
their title. 'I'he learned judge, under the au-
thority of t'artwright r. MuPherson, 20 Q. B.
^ol. refused to receive the evidence. A new
trial was grante<l without costs, the court ad-
hearing to their opinions in Canachi I'ompany r,
^Veir, and Shore c. MeC'abe, both of which were
delivered before the ease of ('artwright v. Mc-
Pherson came before the Queen's Bench. Tlioiiq)-
eon ct III. V. Falconer, 13 C. P. 78.
aiil
"V,|.
Where defendant, besides denyiu" tlic il
tiff's title, claimed title under 'iWil IV,,,! l?'
plaintiff to M., and under M. :- 11.1,1, t),;,,' V
notice did not relieve the jilaintiH' fi,,,,, ,,,.„/.
title. Brandon)'. ( 'awthorne, l!l t^i. |;, ;1(|,^"' "
('artwright r. .Mcl'herson, 20 (,t.'j'., '
ruled ; Canada ( 'onipanv ''. Weir 7 (' p 'ui
Shore r. McCabe. 10 C." I'. -Jd ; Colliv , » I,'
11' C. 1'. !».-), and Thomi)son ,-. Falr,„„i-, |3( t
78, followed. Mi'ilvi V. J/r/.n/nih/;,,^ ■_!;((,' i, '
A defendant ajipearing cannot he ninnn.iy ,
tile a notice of Ids title ; but if In- ,l,„.s n„t l.' I
is jircclndcd finni setting u]. title in hmMi 'J\\
the plamtilf will recover on provi,,^ ]„/,', '
title. 1- III I- mini y. W hil' , -lA ^l \\. \->\\ '
Hjcctmeiiton inortgagc. !»ri, i„|„|,r .u,,,,. „.,...
but on examination under .Ail. .), .\it Is"') |
a.dmittcd the execution of the liiiiit'';.ut! '. 'h
that the defence was merely for tiiiir:" n'.i,']
that the appearance and dcfcuci nmM m.t'i'
stiuck out mi 'he authiiritviif Mi-Mi^tti-,' 1' *
tie, 10 L. .1. .\.S. Kl.'f, asdclcn.l.„t«;,s.,„i'|u
to posses.^ion untd plaintiff >liinil. I |ii,,\o|ii,,..|,^, 1
Milrn/ii/i/iiii /lii'ililiiii/ mill Siu-iini Si„'i,hi V /''; 1
ilin, \-l L. ,1. .-.0. -C'. L. Ch.mib'. lytimVi 1
See hiifill V. Lniril,,: 4 I.. ,1. i;); „ ii,,.,
Uirou V. ElUiiU \ \ .IN. s. l:,i. uiw,
lliiiinr V. I.i,iri„li:<, 1.) t^l. ]}. 4;;((_ j, ||,|o
id) Pin-l'ienhir-i uf Til/,.
Hefendant is entitled to iiaiti.'iiiars nf a iiloi,.
tiff's claim in ejectment alter a[i|itai\uia' „r-,t|
any other stage if it appear pinper to n'miA
that lie should have tiielii. He/,,,,, y /j',.i,rA
4 1'. 1!. -M-IC. L. Chaiiili. .\. \Vik',„. ''
Held, that an order for better iiartieiilai-s ni |
plaintill's title may, in ejectiiiciit, lie inailc W |
fore appearance is entered. /•',<(/;,■/;■ v /»,„■„,.
(1 1'. i;. 101.- C. L. Chamb. Daltm,. r. r.,',/'
4. Xiil'iri //ni,iliii,/ I II I'l It,; ,
Where immediately after aiipearaiieo, tliej
plaintiff served the issue bunk, tuijetlier nitbl
notice of trial, and sul.isei|Ueiilly, VWe'ii /'„,
(/((//.< (//■/<;■ iii'iiini-iiiio', ilcfclidaiit ;,'ave ii.itirel
limiting his defence, which notieediii net aiiiwirj
upon the issue book or record : Held, thattlief
notice of trial was irregular, as tlie iiuiiir limit.r
ing the defence was regular, ami slmiiM apu'arj
on the issue book, and be serveil with initial
of trial. ^'/•(///.^7((//'• V. Wh'ii, ,i,il., I'J ('.]'. ."i^l.
Where defendant limits ids dcfeiKo iiiickrC.
.S. V. C. c. •_'7, s. 1-J, to ii.art of tile liuiils siiiditj
to be recovered, he is entitled to the I'niir ilayif
allowed him by the statute, even tliiiiiL:li tliul
may have the elfcct of tliinwiiig thu |il:iiiitiff|
over an assize ; and an order will imt lie,i:i'ami'il|
to plaintitl' to aiiicnd the is.-ue wliiili lias ludij
served by him before the four days liaveelaiiH«L|
without jirejuilice to his notice of trial. I'hVfim
I'i III. v. Wintivs, W 1>. 1!. \^\•l. ('. b. lliami
Urajier ; followed in liiii'liiiiiiin v. A'l /'..,. 'j L .l,^
N. S. 71.--('. L. Chamb. A. Wilsim. lint h*
next ease.
Where a defendant tiles his apiiearaiRv. tli^
cause is at issue, and the plaintiff nia,v 'v*
issue book and notice of trial. 1 lofiiulaiit nii.vj
'118.1
! hi.wever, within four (
; „„tia- hniiting his deti
ms, 111"'*''' '^'"^' I'"'*''-''
\,|iiiinistratii'ii of .Ins
i„i,ik aliu'lidcd 111 acco
\ tinii. Imt he I" ii"t en
„i trial set aside, r.
■ri^C. L < 'liaiiib.
Heicnihiid lihd a not
1 1,1,1,1 "niciitioiicd ami
' (.'jtrtiiR'Ht siliiiiiioiis her.
is„iifl iii'"'' •i"*^''''-' "
,bvs iit'w appi'.iranee,
her ilctelicc to .all sanl
tiicreof, desci
I chains in
lat,
ibt
ver,
liIlO 'VK
|i,mii'ls, ^^''''
wiiltli. It being t,io
of trial, the iilaiiitill our
aimiiil the is.Mie liook w
„„tia',il trial, by addin.
t,, a liiiiitcil ilefcilcc, ai
t. On iiiotion to ;
ildii, as it was shewn
ti,iii,it h,iiin,laiy bctwc,
nntue limiting the def,
tiiie, that after expressl\
wlmliMit the iireiiiiscs, tl
.viil.'tlieiinler. as the ell
5i;is t" iiiTiiiit licfcnilant
it w;i,< hmia tide, ami if
yrmilil lilt assist her.
(i«i.lt whether a judge h
An- a huiiii tide notice
rr'iilirlv served after noti
v,"r ',«./«, 17 C. 1'. .")•_'.•(.
I:. . :i'tliieiit for part of
i:„ :,:av,l that 1,., tiic
..ivf t,i his son .lames
,: ■ / iMst iialf, with ce
1, , -tiimlating that he
;;■:.;. :iiil !,'ivc his father
■ . if ileiiiaiidcil. In 1
t«-.'tliir suns the cast h
ilin the decil lieiiu
light ejcctllieiit at
levia'f I'lir life of .lames.
[fliiilt'. giving no notice of
(iiiniiiiiii, miller sec. 29 o
IC.S, r. (.'. c. 27: HeM
ilinl lit IS.')."), \vas tc
imuirtv ,if the half lot to .1;
lant iii't having limited In
|tif was elititleil to the po,
ii'.,L'4(.l. B. .tJl.
jii-e Ihijm, v. Ailiiiii.i, ;■
Umifiimii V. Di'iCKiiii, 17 (
."). Ei/iiiliilili' IJ
Hi'iil, that there is no ant
tS, js. 4, 7, 0., for carry i
Ijectiiieiit further than rep
Vai/m«i/, liP. R. 211.-^
h, '.'. ('. ,(■ /'.
1 Per .\. Wilson, ,(., that the
ljii.tmtiit ill this cause, setl
Vi'linvancldinvress, who I
pge iiiaile hy her husband,
[be laiitl M against the plai
Nil she shaulil lie repaid,
mm; ami setting up alsJ
Mts under a lease from 1
*"1
118.')
ETECTMENT.
1186
I vever, within fnur diiys iiftur a^ipuaraiice givi:
'' i;mlHn" his ilefuiice ; ami il' liu do ho, liu ,
unilfi' tliL' iMiwera iit ainuinliiiL'iit in tlii"
I ilmiiiistnititin of Justice Act, have tlii' issiu-
k uik'HiIl''! in aouonlaiico with tho liiiiita-
I ■" iut hi' i"* not fiititlt'il to liavc thi' iiotito
*'.-"!;„l .<et aHi.lo. r„M,i/ V. Mctliath. (i 1'. I!.
'0-4 t'.' I. C'lianil..-l)alton, V. C .( /'.
lloiiwl:"'* tili'l a iioticf olainiiiiy tith' to the
I ,1 .. ||„,,iti(Piu'il anil ck'Mciilii'il in tlu. writ of
■tiiRiit siunnions heroin," ami uftei- service of
■'" I ,iik -.iiil notiee of ti'ial, aii.l w ithiii four
V » iit'ccr aiipear.nu'e, served a iiotici' hniitnii;
I nloteiico to all said land, exeejit a striii on
;,1.. tiiereof, ileseriKing it \>\ metes and
li,.i'.iils, two clianis in length liy one liii/: m
!'],],' It licinn' too lati.' to serve a fresh notiee
Ttriiil. the iilaintill' ohtained a judge s order to
." .. ,1 the is.-ne liiKik without prejudiee to the
""t'i'i'Mt triid. by adding the usual statement as
i '"' I (|,i,it,.il (lefi'uee, and went on au<l took a
f ' ij.t (fii motion to set aside this order, itc. :
^'lldil ^w it "'"* shew n that there was no ijUes-
iiioiini'liiiuiidary between the parties, and the
• itiio limiting the defence could not he liona
', J'! ,i|.,t -itter expressly claiming title to the
'y^. Jf (lie pi'emises, the court would not set
^ iiil'tkiinler, as the etlect of the amendment
«<tiiRniut defendant to set up her defence if
it «;b li"im I'lle, an<l if it was not the court
ffi.uil nut assist her. The court declined to
■iWtwliftlier a judge has power so to amend,
^Ivrvalmii:"! tide notice limiting the defence is
trenuidv served after notice of trial. VnninHiu
Iv r,'««m/(, IT*'- I'- •''•-'•■^•
ill tji'i'tmeiit for part of the east half of ;i lot,
Bit ai'ivari-'il that 1... the iiatentee, in IS.'i.'), l.y
( iln'l MVf to his sou .lames his interest in one half
Lo! fill" iM.^t half, with certain ]iortions of the
\vm, stiiml.vting that he was to till tlie farm as
IhsmI' Aiiil ^ivc his father one half of the pro-
^Juw,' if ili''iii:uided. In lS(i;?, L. eouveyed to
ItTiiiitlicv Mills the east half, the consideration
feWK-si'iiin the deed being falK), ami their ven-
liltc iinni','lit ejectment against the widow and
tiicviMi' I'lir life of .lames. She defended for the
li'ii'li'. "iviiii,' no notice of defence as tenant in
|»niim, umler see. -'ft of the Hjeetnieiit Act,
|C. S r. C. c. '.'7 ; - Held, that the etiect of
mk iliiil of IS.V), was to give an undivided
pnoit'tv Hi the half lot to .lames, hut that defcu-
Jdant iii't liaving limited her defence, the jdain-
Itif WIS entitled to the postea. L<ich v. I.<ii-li
l,24Q. B. :W1.
S« Ihiftmi V. Ailani», .'i f. P. 404, p. J I'.fJ ;
[iiiiiiii niwH v. Ddvmn, 17 V. V. 'lo~, \>. I17S.
Helil, th;it there is no authority under 'M\ \'ict.
:. S. ss. 4. 7. "., for carrying the pleadings in
[ijectnit'iit further than replication, ('iisrdiii-lti-
■.i:U-oml,{\l\ K. -Jll. -('. L. Chaml). - Dal-
lOD, C. (,'. ,(■ /'.
Per A. Wilson, .1., that the equitahle defence in
^jittrntiit ill this cause, setting up the right of
^wi4'i\vaiul iliiwress, who luul paid oil' n iiiort-
to iii.iili' Ijy her husband, to the possession of
le laud as against the plaintiffs, her children,
Wil she shmilil he repaid, and afterwards as
mm; and setting up also a lien for improve-
ments umler a lease from her, fully set out in
the report, and tiled under "The .Administra-
tion of .lustice .Act of 1S7.S," ss. ;{ and 4, though
probably not allording a good eipiitable defence,
should be allowed. Cnrfirk' if iilv. Smi/li, 'Mij.
1!. ,SS!I.
HeM, that a plaintitV may reply and demur to
such an eiiuitable defence. / li.
(1. .\f,i:,; I,, /), /, iiiliiiil til .■<li' ir Tilh .
When in ejectment it is necessary to lei\ e
the ipiestioii of adverse possession in the defen-
dant for twenty years as a doubtful point to the
jury, it is not n c.ise in which a jil.iiiititl' can
avail himsilf of the ])rovisions of 4 Will. W. c.
I, s. .V2, anil give notice to defendant as aa in-
truder. i)()i- i\. LiiDii-i v. Criurl'tiril, (i (>. S. M.'U.
The plaintill' jiioved a pa(ier title, but the giant
from the crown liid not issue until IS'_'(), and the
deed from the grantee was e.vceuted in KS'_'4.
This deed was lost, and the ineinoii.d of it pro-
duced as secondaiy eviiieiice, shewed it to have
been an ordinary conveyance in fee, but did not
shewwhat covenants it contained. The iilaiutdV
gave a notice umler ('. .S. V. ( '. c. •J7, s. 17. and
defendants shewed no title: Ibid, that the
deed by the patentee should be pn sumed to have
been one which would operate by estoppel, and
that the statute .ipiilied. Aniixl rirnj v. L'ltth-
ft III., -JO Q. H. 4-.'.'..
'I'he jilaintills in ejectment, executors ami
trustees of S,, claiined title by a s.de under exe-
cution ug.iinst t'. It apjieared that ihe patent
for the land issued to one N ., of the townshipof
Fredericksbiirgh, in ISIO. There was no deed
proved from V., but in IS.'U, one l>., of the same
township, convcyeil to ('. tile whole lot, and it
was shewn that the jiateut had been in i). 's pos-
session, and in that of ('., whose jiapers had been
burned. No claim had been m.idi by or under
\., but no possession had been taken of the land
until I.S47, when the lot was sold for taxes and
purchased by ('.. who p.iid the taxes and exer-
cised acts of ow iHiship until the defendant eu-
teied as a trespasser : - Helil, a case within sees.
17 & IS of the Kjectnieiit Act, C. .^. I'. ( '. c. --'7 :
that the iilaintill', under see. IS, was a pei'son
entitled in justice to be regarded as the proprie-
tor of the land, but unable to shew a perfect
legal title from a cause not within his ]iiiwer to
remedy by due diligence; and that the ih feil-
dant being a mere intruder and stianger lo the
title, and having received a notice to shew what
legal right he liad, under see. 17. was not at
liberty to take objictions to the iilaintills' title.
Jhirix I / III. V. I'liiiXnriiiiiii, 'M (.). li. 4.')7.
Held, that under the circumstances of this
ease, the phiintill's, by serving a notice umler (.'.
S. r. ('. e. '21, s. 17, might have compelled the
defendant to shew title. 'L'liiiiiiii-tun tl nl. v. //'(//
-/ „l., -.W Q. H. 3(i7.
Land sold for taxes under t'. S. I'. ('. c. "i."!,
was described in the assessment roll, advertiae-
inents, and treasurer's warrant, ,as the sinitli
part of the west half of lot 17, in the (tth eoii-
eessioii of Iviiwdon 7.''> acres ; and in the sheriff's
deed by metes and bounds. The plaintiff in
ejectment claiming through this sale, and being
a bona tide purchaser, gave defendant a notice,
under sec. 17 of the Ejectment Act, V. .S. I'. C.
c. 27, reipiiring him to prove liis title : — Held,
>\ I
118:
EJECTMENT.
11«
that tlio ik'fiiiiliuit, itiiiiii tlic eviili'iice sut out iiimitlicii'iit, uiilu.Si- it statu ilcpDiiuiif's lnjli,.f,i
"- *>■:■■ ■■"' "■• ' *'■•■♦ *' — ■ I ='■■■ - -• l)i)i- I. Siiiiihrsun v. //,„, ■]■ j^
in thi.s case, wa.s a inuiv iiitnuli'i' ; that the cawi-
was within thi,' Ntatute; and that (k'funihiiit ciuiM
not tilvc ailvanta^'t; of thu (h'Toctivf ilcsciiiitiou.
/!nui/, V. (.■Infiroiiil, 32 Q. K '-';(,
Si'mliif, tiiat an iiliji'^tioh to the ahsiMK-i; of
proof 111 an onh'i' in ChanciTv, i-L-i-itcd in a ilued
fXCi-'Utnl nndcr the oidur, liut wliirh onh'r is
not otlifiwiso ])riivi'cl, may he met l)y a notiiu
nniU'f si'f. 17 of the KicutinLlit Ait. TIi'ihi/isdh
V. li, niKtl, '1-1 a I'. WXX
sllu IS so.
3 Vict.
An atiiihivit of HLTviuc cannot \\v
the attorney in tlio cause. hw
//.,<, T. T. -i & 3 Vict.
The atiichivit must shew the time ,
l)(,> i\. S/ii rii-'iiii/ V. ItiK, ,"i <,). li. ;;|;i
U
d. ir.,«v,'
/hr/iiritl'i
ii'iii mill iS'i I'fh'i
fli,
Tin ,;
s. r.
sitiili'
{:{) I'liriii mill St riin nj.
II'III' no ill rliiniliiiii in rji rtiii ill. liii
, till- irr'if M fil Itr yi'l'i il III
' . ■ . . * ,
illilliiiri
i/irlilfiifliiii III I'jir'iiii'lif
IK III
(/•(/.< j'liriiii rill .-t'-rnil. ]
Service upon one of se\eril tenants in com-
mon in ipossession of tlie s.une parcel, is snlticieut.
Dm d. Dn fill-nil V. /,•(.<', 'Pay. 4!tl.
Where several tenants occujiied diH'erent
apartments in one house, as several tenements :
— H(dd. that ,•: single action mii;lit he l)roU'4lit
for tiie ]iremises, serving eaeli ten.uit with a
copy anil notice. Dm A. Hillx. I'm, 3 (). S. (14.
The ileclaration cannot he served by the lessor
of the plaintitr. Dnr d. Annitriiini v. lim , 4 < >.
S. 301'.
Service on a person fiiot siu'wn to he a servant
of the teiiint I on tile ))remises el limed, explainini;
the mcanini,' .lud intent thereof, --Held, ins\illi-
cient. without shewing tiiat the tenant h id re-
ceived it. /><«' d. Sii'lUll V. ilni-, .") (>. S. ,SO(i.
A ileclaration designating the pro]iertyhy the
lot and cniiecssioii, without nieutioning theipial-
ity or description of land, is siithcielit. />". il.
ii'niillij V. riikli, 1 (,>. H. -IS-l.
Service upon any person Ipiit the tenant or his
wife is insullieient, unless it can he shewn tliat
the declaration came to the tenant's knowledge
before the first dav of the term. I)m d. (Irmi v.
/.'or, ,-) (». S. 4S3 {Dm d. 1 1 II nil r v. I!m, 3 (/. R
I-J7.
The declaration ill ejectment is not ineluded in
tiie proviso to see. "Jliof \'l \'iit. e. (!3, hut may lie
served lietwcen tiie Istof .liilv and L'lst Vumist.
Doi- il .Slmrlt-' v. Nni; '2 V. ]j. ( 'liami), lOii."
(c) Viiiiii.
The venue in ejectment is iii,il.
c. 114, nitide no ciiaiigc in tint r,
\ Kiiiil.-iii/ \. Jiihii.ilnii, \l(). li, -JO!!,
In a local action, if the jilaiiitilt' dusiit tutrvl
the cause in another district, li • slmnld uimlvt f
enter a suggestion on the roll tu tiytlienJ
there, not for an order to ili in^jy \\^^
/till d. ('/•(/■//■.■•• V. I'll III iii'imi. W i). li. li,").
Under 14 it 1.") \'ict. c. 114, it w.u imt n,,
sary that the a(;tioii should hehroiii;lit, (ii'im^.j
tiled, in the county where the inciiiisus «v]
situate and the venue laid. I'li^.^nmri \
1 1'. I!. 318. V. L. t'liamh.-l!,,l,iusnn.'
Ui;;Vi
p^-vt .1/,.,
vi.'iiiie.l
[Now it is otherwise hy ('. S.
(■
In ejectment eiunnieneed aftrr 'Jt Nj.t. ,
\ for land in the city of Toronto, tlievciiufwaslu
! in and ti ^' tri il took jilace at tlie .\.<sizi.sf.irtlii
I united counties of \'ork and IVel. I'tr Uniijij
sou, ('..I. -The second section iif the ai t t!r
allowed that course. Per Hums, . I. Iiti
was wrong, the defect «diilil hcciu-M: .,
statutes of .leofails. I'lillnn v. ' V/hi. (■•«•' .i/J
•21 (,). K .3()4.
; Held, 1. Where under 24 \'ii t. r. X\. s. ■.', t|
\ venue in ejectment is laid in tliecuiintynl Vnr!
when the lands lie in the city of Ti'imit", tl
venue may he changed, on the iilaiiitillVaiiii
cation, to the city, hy virtue ami in ixiri'ist ui
common law power; 2. In such a ii^u. tlii|i
jier motion is to clnnge the vciiiK', ami wA
enter a suggestion ; 3. Section 4 nf that mtiil
does not apply to actions of eicctliiciit : 4. Tl
lilaintiH' having lost a trial l>y iriiuularitj I'li
part, the venue \vill not he cliaiiL'cil. mi liis aii]il
cation, in order to expedite the trial;
ejectment the case nnist he at issiiu as tualltl
defendants before such motion is iiiaik'. .1'"'-
■■'nil V. /{mini, 2 1.. .r, X. S. Ilil. ('. 1.. ( hunl
I — A. Wilson.
Held, that the fact of a dcfc'iidaiit lifiii.'i
i County judge, where the iilaiiitilV mi:;lit
■wise iiave jiroceeded under tliu nviili"l;ii
Tenant's Act of KSliS, and theivliyhavocliMiaa
a more summary remeily. is .sutiiciiiit ri:iS'ii|
change the place of trial in cjci'timiit.
4 1'. It. 310. ('. I.. Chamh. Diapur.
(hi Aljiiliti-il III' Si rrin.'
M'here sei vice upon the tenant in possessi/in '
was sworn to, the court refused to set it aside
uiion an altid ivit stating it to have been served
upon a stranger or servant on the premises.
Due d. Diiiilii/i V. A''"', Tay. 3."iO.
Where the attid.avit stated a service on the
teiiaut in ])ossession of part of the premises, a'
rule for judgment against the casual ejector was j
granted as to such i)art. Dm d. Davidnoii v. \
Roi; M. T. 1 Vict.
Service on a person stated in the a'fiilavit to ant by the christian name of .laims iiistiid
have .aduntted himself to be tenant in possession, William, an anieudnieiit was allmvi'l. /'"'I
is not sufiicicnt ; he must be sworn to be tenant Criiinhiirk v. lioi , 1 (). B. ."ilS.
in possessi.m. Doi- A. Diuiiix. lim, K. T. 2 Viet. , ^yj^^^^ ^,^^ j,,^^;^^ ^..^, ,, ,, ., „,,„„, (,,,„,
An artiilavit of service on a person who repre- \ the right term w.as inserted in peiicil, ;mu1 |i"inl
sented herself to be the wife of the tenant is ■ out to the tenant at the time of sernce, the i^
S. Xi.llii'i In Aji/ii Hi:
[Xiil null' ijii'ii), i-.ii'i /ii III/ llii ii'ril.]]
Where such notice was addnwi'il tutlie
EJFX'TMENT.
1190
i;\miR':it'sln..li,.iti^
'" V. A''",T. T.ul
mot lir swurn Uju,, i
/*'.• a. ll'.;/;,.,.
tliu time (if svivi^t
,». 1'.. .•ll'.i,
1 tint r.'xiiLvt.
plaintill' ili-sii\ i.\:
•t, ll ■ sllnllM ;i|i|,'n •
Villi t(i try till-
i'h'Uli,'i' till' i; ,
l-t, it w.if III it iiivju
1 Ik'liriiiiu'lit. iii'|M|ivtJ
vc tlio inviiiisus wci
I 'i I. ■i.-^ IK 1 1 ri V. >'fi,')ij
ll, IlllllillSilll,
C'.S. r.c. r. •j:,>.:i,|
!(l (lI't.T-.H ViL't. c.'lU
into, tlio vi'nui'W;i*li;^
.' ilt till' A^si/l■<!'n^tll^
ilUil \\'r\. IVrlli.iJ
rtimi III till' :ii't clfarl|
liuriis, .1. lftla'Vini|
«imlil 111! eui'uil liytlii
lull V. ('iliii'i''m
•1\ Vii't. 1-. ."i:;, s :, 111
1 ill tUfcinmtyniVr|iil
If city of TiTirtit", t'M
111 till' iiliiiitiil-
tiK' aiiit ill c\iri".-i "i I
11 siu'li ;i i-r-L', tlii|in]j
tlij vuimo, lui'l 11 't I
LH'tillU 4 lit tllllt Stltlltj
111' (.■ioctiiifut : 4. Tb|
ll liy irivi;iil:irity"iib
f i-li;ui,i:i.'il, lllllli^allll^
rilitf tile tri;il; ■'■
lir ivt issue iis tn :\11 ti
iitiiiii is iiimlo. ■\<M
S. Kil. »'. 1- '''">"1
\{ a lU'k'liiliilit ln.'iiijj
liiiiitilV lui^lit "tlie(
Liicr till' nviiii"Hil
ll tlRMvliyli;ivf»lit,iiDij
{. is sulliciuiit ivii.-iiiif
ill oifctiiR'iit. ■!"'
lull. -DraiHT.
.t/./-iiO'.
|,.,/i/ hij Ihi in-il.l
Is aililivssi'il til tlie
],„o iif •'iiiiH-< iiistrtai
was alliittx-l, /'"'
51 S.
fur a wniiigtiTiii.
]..liiilieiK'il,:'iiili«iinl]
linio of service, tliowr
siilu the .survico.
I. l'.»
//,„, 1 (i. n. 40(i.
.,,„seilti.set:isi.
" ■■ KSl. V. ( . .lolios,
hiii: ll. M'dU V. , (huiiUonl) til I'oiiii! in iiiul ilufeiul. Mi m r v.
Sue, also, Dw j /io/x/, 3 L. .). 150. —C L tJhiunb.— Koliinsdii.
A'i/»;iv. /'"'i ' H'- "• "»""• 'piij, teimiit ill |)iissi'ssiiiii liaviiig iii'i,'li'i'ti'il tii
I iiititl's attiirni'V having si'rviil iii.s ilediirn- , notify liis laiiillnni, tlif ili'fi'inlaiit, nf tln' artimi,
,l..,iiiM'iit « itii imtii'i' til aiiiiiariu ll ti-nii tlic iilaintitV ulitaiiii'i"
jlHl 111 ']" '" , . . ' ■ . ... '.
i„, issiiiilili' ill .HTiinliiiri'
jiiil;.'iiii'iit, anil having
'vith a iiKiiliTii mil' iif isstu'il cxumitinii tliiTiii|iiiii, gut ]iiiH.-ii'SMiiiii. A
|, ,..(,, |- l^iiii^f's Moiiili ill I'ji'i-tliifiit lint iiitM- jnilgi' in ohaiiiliersi s.'t asiilr the jiulgnii'iit ami
1 iiifii this niiiiitry, imr aiijioariiig in Tiilil's writ uf ]iiissi'ssiim, ami let ih'tVmlnit in tinh'fi'iiil
if',11 lit 1S17, the" imlgniuiit wnn .sut a.siilo. , iiii tenii,». < hi imition tn ri'siiml tliu nnli'i- fur
'' I'li'lisli nili' i-" now ailniite'il. /hir il. llnffiii ' want of jmisiliitiuii ; ilehl, tint it was in tlio
' '. 1 '. ' ilisri'L'tiiiii of tliu iiiilu's iinil Im hail jiowcr to
/;„ T:iv, -JO;!. >i'i',
il. Aiijii'ii'i'i- ■' '""' Di'j'iiici'.
iai W'Uhhi ii-luit Tiiiic.
l'lnHiitiif siiiiiiiiiins uiiiti'r till' Hjft'tnu'iit Act
P.iniivstlie ilefeiiilaiit tiia|i|>i'ar "within sixtruii
iJiv- liter tlie servii'u lii'i'fof."' A siininions was
jjvcl nil till' l-th, ami jiulgimnt sigiu'il on tlii'
Btlr -Ih'l'l- f"" ■■"'""• •'^'''"" ■^'^ /■'''•/■•ll'", I I'.
•j(iii.— ('. L. C'lmmh. Iiiiliinsim ; fnllowoil in
lifii'ii/.;"//'"'.'/ V. lii-iiint, 2 L. .J. N. S. 7"-'. ('. L.
liaii'ili.-A. Wilson.
t Siimnmis servi'il mi loth l''iliruary fmit ln'ing
an vi':ir.l .luilgiiii'nt sigiii'il in ilcfanlt of aji-
faiKT iiii tin; 4th .ManJi. thf .'Inl March, the
(it tlie sixteen ilay.s within which ilcfcmlant
lit 111
ill til aiijiear.
Ijiiii' V. (Viic/c//,
lotrisiin.
hcini; .'^iiiiilav
4 r. i;. ST.
lldil, regular.
. L. Chiuiil).
\h} Ihl l.iiiiil/'i/'i/.
?Al:m41iiril may he ailniitteil to defi'iul witli-
|t iinlliihivit stilting that he is so. /)n< d.
*M-. A", Tay. ■-'.S.'i.
Iflliircjiiilyiiiciitiis.ilitaineil against the casual
t.iriiieiiiisei|iU'iiieof the teii.-int in jiosscssion
|r.iuiiv_'..'eteil to give notice to his hiinllonl,
(oiiirt will set the jinlgiiieiit .iml writ of pos-
toi'ii :i.siite, ami conipel th- tenant to (lat
k I)"' ll. V. /,''.'" --Asi,,, V. .1/. '.•"//', Tay. :{77.
Ilneji'i'tnieiit nil a v.icant iiossession, after the
scretioii ot tliu Jinlge, ami lie ii.i
make the order. 7'"//' '/ v, WiUhniisiin. 1,'{ ('.
r. risi.
Defeml.int heiiig tenant was scrveil with the
writ, which he Iniiilcil to 11., hisliimlliiiil, ami H.
took it to his attorney, who. instead of getting
leave for 11. to defend, entered an aiijie ir.ince
in del'endaiit's naiiic without his authority. A
verdict having lieeii iilit.ained ag.iiiist defendant,
the judge refused to interfere, Imt left him to
his reiiieily against lii.-< landlord and the attor-
ney. Murdii v. Sr/ii niii r/i(ini, '2 1'. It. •_'()!.'('.
I.,. I'lnuiih. - Hums.
In ejectineut against A. and H., Imtli were
served with tin suniimins, and hcfoie the time
for a]i|icarance had exiiired one I., w.is allowed
to eiiliie ill and defend as l.indlord, liy jtidge'.s
order, which did not ex^uess whether he was to
defend in idace of .\. and 1!. or with tlielii, nor
did this ai:]ieai' friiiii his a|i]iearaiice or notice.
They did not appear, and judgincnt was signed
against them liy default. The issue with L. was
carried down and tried, and a verdict rendered tor
the [ilaintill', on which judginent \\ as entered, and
co.sts taxed against L. only, and a writ of pos-
session issued against the three : Held, that
the plaintitV was entitled to enter the judginent
against A. ,iml B., and that his ]iroceedings were
regular. //".</'//.< v. ('(iiiiinii I'l iil., '1 V. I!. XW.
Q. B.
Where leave is given to a limllord to aii(iear
and defend, the apjiearance must lie entitled in
the cause against the ilcfeiidants named in the
writ. Notice of aiijicarance and notice of title,
if .so entitled (i. e. in the cause against the origi-
nal defendantsi, are correctly entitled. A siim-
1 rule hail hecii olitained liy the plaintiH', mons oht lined to set ashle the appearance and
suliseipient proceedings for irregularity, styled in
the cause against the new defeiulant-s. was eor-
rectlv entitled. Iln-ini v. Kllhitt il "/., 1 L. .1.
N. 8." l.")t). (". L. Chamli. A. Wilson.
In ejectment against A. and R., by consent of
the plaintiH".s attorney an ap)ieaiaiice was en-
tered for .S. as landlord, A. and l>. not appear-
ing. The notice of trial was entitled as against
A. and B., and notice was served on the plain-
tiff's attorney warning him that this wouhl he
objected to. The nisi prius record contained no
appearance, lint annexed to it was an appearance
by S, as landlord. The plaintitl' was allowed to
enter this on the record, and took a verdict, de-
fendant not appearing. On application to set
aside the verdict, the plaintitl' objected that the
afHdavits tileil by defendant, entitled as against
S. alone, were wrongly entitled, and that no
judge's order was shewn allowing S. to defend :
Hehl, I. That the plaintiff was precluded from
the last objection, for he had consented to S.
! ajipearing, and obtained leave to enter his ap-
I pearanee on the record ; 2. That the plaintiff s
I joilgnient regularly obtained will not be set 'own proceedings warranted S. in jussuniing that
ptur the purpose of allowing a third party 1 he was to appear alone, and that the attidavita
jtciiurt Set the prucccdings aside, on allidavit:
Itiij:; thit there was a house mi the premises,
H-vrr.il articles of furnitiiri' in it, and that
fcttiiiiiit liveil near, mi condition that the .ippli-
kt. whii ehiiuieil as landlord, should appear
dilcl'eiiil. /•'•v'/'''"' /' d. ( 'iijii-'ol v, Ah'nill, ,")
|$.l)l.
km'irtv'ii;ee will not lie admitted to defeml
Ikii'lliir.L unless he can shew that the tenant
lorli.iMsHniler liisinortgagnr. Ihnd. Mulfur/i
, M. T. 1 \iet.
Bn tjirtuieiit against two tenants, the landlord
piiiK-il leave to join in a clefenee as a third
rty. Imt nut avaihng himself of the order the
iiitili' niaile uji his record .against the two
Bllt^;llMne. He gave notice of trial, however,
SiJiiseas against the three : ;inil the two not
|fessiiig. ie., the plaintiff was nonsuited. On
feitiiiu in term, -Held, that under these
Mistaiices there was no necessity to set aside
|ii'iiisiiit, hut it was set aside on terms. Dnr
Viirphn: Midu'in ,t ,il., 7 Q. B. 40,'>.
i' ii.ii.
1191
EJECTMENT.
f)l)ji'i'tf(l to wtTo tlii'ivfdiv rightly eiititlud ; 'X
Tliiit thu iiotict' of tiiiil wiiH widiigly eiititluil.
Tin' vi'iilii't tlK'i't'fore was set asicli', tlii' costs to
l)t' liaiil l)y i>laiiititf. .Ihium v. Si itlmi, 'i{\ (). H.
I lit).
W'licru ill I'ici'tim'iit a landlord is allowed to
iMdiif ill ami ill iViid, till' onli'i' not saying wlu'tliiT
it is instead ol', or in addition to, the original
deleiidant, it is irregular to omit tlienanieof the
latter ill the style of the cause. Yiiuiiiin v.
ShiiKi; 5 I*. I!, -t'lill. ('. I.. Chaiiili. Italtoii.-
C. C. .1 /'.
One Cassclinan, ilainiiiig under slierill's sali',
recovered ]iossessioii liy ejectment against defen-
dant, wlio had liccii his tenant at w ill since the
iniichase at sheiill's sale, anil oil the ".^Oth of
July, INdd, tinned him out of jiossessioii ; Imt
the juemises wire left vacant. On the "Jlltli of
March, IStid, jilaintill' coiiimcnccd this action of
ejectment against defendaiit, and on the 8th of
.liiiie, IS()7, was [lut ill ))o...sessiiin under a writ
in this suit. ( 'asselman then ajiplied toset aside
this judgment, and to lie let in to det'eiid as
landlord, hut, Held, that hi: must he left to his
ordinarv reniedv liv ejectment.
Miir/iliif, 4 V. I!." I.S-i. ('. I,. Chan
8ee Luf: v. Ji,<i<ll<, ") V. It. 418, \k I-.'08
M J
< '(UiK mil V.
Hagartv
(e) 7)// (Hliir l\ isiiii.i lint iiiiiiiiil ill t/ir ]\'r!/.
On an atiidavit shewing that the defendant
sued in ejectnieiit Was merely the agent of one
1{., an order was made to suhstitutc I'.'s name
as defendant, and that he he allowed three days
to enter an aiilnarance. Murri.t v. Snii/llii, '2 L.
.1. I !■_'.- ('. I.. Chaiuh. I'.urns.
A {lurson in iiosscssion and not named in the
writ will he allnv.ed to a]ipear ami defend, even
though defendant ha.s eonfessed judgment, and
;i writ of hal). fac. has heen issued thereon.
lliirriiiijinii v. Iliirriiiijluii, 3 1^. .1. HO. — (.'. L.
(.'hamh. Hums.
Leave to ajijiear and defend will he granted to
a iierson not named in the writ, luirsuant to see.
•J2.")<.f ('. I,. 1". Act, l8.-)(i, ui>on atiidavit of the
a](iilicant that he is in piissessinn, and disclosing
his title. WilisUr v. J/nrsliiirijIi, o L. J. ',i'2. —
C. L. t'hainl). — Richards.
Ill general an ajiiilication for a third party to
he allowed to defend, will not he entertained
after judgment. .lA/vicv, Ilimil, I? L. ,1. I'lO.-
C L. ( 'lianil), liohinson.
A mortgagee out of }iossession is entitled,
under see. !tof (.'. S. V. ('. c. '27, to lie admitted
to defend an action against his mortgagor. Mr-
Jhriiiotl V. Kicliiiii, 7 li. J. l.'iO. -'('. li. t'hamh.
— Draiier.
Kjectment having hceii Ijiought against A., 1>.
was liy judge's order allowed to defend in his
place, and the i.ssne hook and notice of trial
were served as against H. alone, hut A.'s name
was inserted in the record as a co-defendant. A 1
verdict having heen fouml for the plaintiff', on
motion in term an athdavit was tiled thatB. 'si
attorney was not aware of A.'s name heing on [
the record until after the trial had commenced,
and that B. had lieen prejudiced in his defence
l)y iK'ing deprived of A.'s evidence. The court
set aside the record and verdict for irregnhvrity. j
Pvebleg v. Lottruhje, 19 Q. B. 628.
(d) O/lirr Ciis,:^,
Where, in stvling the lessors nf tlii'nliinl
"The chancelior, pr.siihiit, an,! v|„'l;,^^J
King's college at N ork, in the pinvini'i. ,,> i
Canada," in the consent rulr, a|i|iiai-;iii,,
))lea in ejcitmeiit the words ••jn tlic i,',,,'"]
of Cpjier Canada," were oiiiitti d, (I,, ..m^,
was held not material, or at all cvint, ii'J
nullity, and might lie curcil liy laili,,. /,'\
Cliniin lliii\ it-c.. Ill' Kiiiifs ( 'nlli .j, \ /',„ I I
Cham).. III. Mlicauhiy.
'riie court refused to di,--tiiili ji vrriiUi
plaintiir, on the grimud that the irninl ,ii,i ,1
contain the appearance lilccj, wjnv,. jt ^^.j .■.
a notice liy dcfciid.ints liuiitiiig tlicir (l,.i,,|,|
and a jilea in tlii' form given hy 14,^ LIVi-T
114. I'li/iiiii V. Ailiiiii-^, .'IC. 1'. 4(M.
Where the notice of delciidaMt'.s titit w,i, J
addressed to the jilaintitl as rii|iuivil livV
I'. .Vet, 18.-)(i, .s. •.••-'4. tlie dcfcuihuit, .,,, ■„„.,,,J
to set aside the a]i)iearaiicc ainl intir i
was allowed to amend his iintiir ..n i
costs. 'J'/lnlli/Mill V. Ill /'■A. ,'! !.. .1. |;i
Chamli. Ilagarty.
riaintitr hi-oiight ejectment agiiiust thi'iitjJ
dant aftei' he had i|uittcil Jiosscssji.n. |V|,|,,1,
appeared, not limiting his defiii.'c, imr .utj
the nature of his own claim, Knt at tin
time he served a notice on thr plaiiititW unJ
iicy that he did not deny tlii' pLuiitill '.•^ titK.;
had given i;p possession hclorc artinn liri.y
The pi lintilV, nevertheless, tmii; tlic ivmr,!
to trial : Held, that upon siii'ii iiiitiatliiMjji
tilt could not liavi' signed iiiilL:iiiciit. Ihiq.
h,iriii/i.t, l.'i (,t. H. 4:h».
(,»iuere, per lloliinsnu, C. .1., wlutluv ii.lrij
dant appears, hut omits to Liivc iiutiif nf i
nature of his title, the plaiutill may hi'ii jnj
lueiit as for want of apjieaiaiRi. //..
Ilefiiidant will he admitted tu aiiaii'l hiu
pearance on payment of costs, ulniu Ji,
omitted to tile the renuisite iinticu dl title.
he must avail himself of liiivc tn aiiuinl «:t|j
a reasonahle time, and if [ilaiiititi'ifniscti'
or receive the aniniint oi costs nf aiiiiiiiiiiid
tile amendment may he made hclmv |iavii:tija
costs. J)iilli// V. Liiiri/ir. 4 I,. .1. IH;', I',
Cliainl). Holiinson.
I>efeiidant in his a])pe,".rauce wintf tlu]ilj
titl's 11,-iiiie Samuel instead nf Tliniiia.v .liiiLnj
signed thereii|ioii, was, uiiiicr the i il■^■^llli^
of the ease, set aside on pavnaiit nl insts, *'
V. Mi'DiiiiiU, -2 v. W. (i.-i. -l'. C. i;icli:u-.i<
The time for ajipearaiKc ex|iiRii mi tli?
May. On that day iilaintitrseaiviuil loiiiif
aiice, hut foniid none. The next day ana|ip
ance was entered with a imtirc uf titlo, »!(
notice was scrveil on plaiiitili' eii tin TtuMJ
on the 14tliof .May iilaintitr iiiaile aliiil.iv,t"fj
search of L'lid May, Imt siippiv.s'ii iiartui]
facts, upon which an ex iiartc iinler mi'ltrf
!)2 was made :- Held, that tlii.s unlir liiii.-t
set aside, as the appearance ciiiijii imt ln'trtH
as a nullity, and as the older was iiiailiisp
withiuit all the facts having heen kiinHin.r
sidereil. I'tiiiXiiriinui v. .l/i7-Mr/((((i, l' 1. II
S. 207.
Kjectment on mortgage. I )efeml!Uit apit.j
hut on examination under Ad. ■!. -Act, '
admitted the execution of the in irtgagf.J
that the defence was merely for time :
EJECTMENT.
111)4
,t 'in apiM'il'''*"^''' '""^ lU'ft'lK't' I'ciiilil not In-
r li'iiiii '11 tluiuitlmrity iif MiMiistcr <•. IWat-
11) L 'I- ^' ^- "*■'• "*• ilft'i'iiiliuit wiiH fiititloil
i«tf«'!*!'iiii" ""'•'' !''■""'••" nIi'HiI'I I'l'dvu Wm
\lil,-i,j,i,liliiii /{iiililiiiii (iiiil Siiriiiij Siiriilif
" I'j.'lm, I- I- •'• -W. — ('. L. (.'haiuh. I)ultini,
10. CoH-^dlf /{nil.
\ , /A i-nfiii'il I'l if '"'<' ""'.'/ I'l'/irrid III. 1
\<tiitlii' ''"'"'"' '■iiii'*i''>t rulo, SCO />(«' (I. Can-
b" ,.^ y 11,1,^ ■_>(». S. -JOlt ; !)i>f (I. TIkiiii/'ioii v.
P. nil ;j((. S. Itl'J ; /^«' <1. ITc^^ V. //iiintril
t'l 4(1. S. !.'{■"); />'" il. A'""" V. /I'n-', M. T. 1
r t I' it II I'i''- !'■ ''*^! '■*'"' ''• ''''W''""" V.
I Ast(i;imtii'liiHiit iif it, 1)1)1 il. I('(.v/ V. //iiiriinh
W'hvn' a biiiillonl ii]iiilicM to In' iiUnwcil (n cu-
ter jiulgiiiciit in cjci'tiiii'iit tor want <>< a|(|>ear-
uncu against a truant whci li:is almionilt'i) and
oanniit l>e )>i'rs(inaliy sitviiI ; the actinn lu'ing
iin a pcpwor tn re fntcr tor mm |>a\nunt of rent,
lit! innst, it' i>o,ssil)l(', |ircHliiii' the K'a.Mc aixt sliow
that lii3 is L'lititli'cl to rc'-cnti'r. /.iri-n-'nii/ih v.
/V(((v/, 3 [.. J. Ksr>. ('. L. Clianil). Holiinson.
(^iin'ro, )U'r lloliinHon. ( '. .)., wlietliur, it' do-
fendant ajUKsir, Imt omit to give notice of the
' nature of iiis title, tlie plaintitl' may sign judg-
nient as for want of .((ijiearanee. Ilnrin r v.
Luiriiili.^, I,") (). H. i;«).
14. hilirriiijiiliiiij I'ln'inl'iifur lii j'l luluiil.
Interrogatories referring to tiie ilefeiiee will
not in general l)o alloveil in ejectment.
Iluin
;< 1,. .1.
'I'M V.
( '. li. ( 'liainl). Itoliinson.
Defendant may administer ijiterrogatories to
the plaintitl' under sue. I7(i of the ( '. I,. I'. Act,
li, to other i.oint.s, /;,»■ d. Lmnil v. Itm, 1 ('.'«•]'!- t..uehing the nature of his title, hut not as
'all in,-.- Ih'< d. Sutl.i,, V. liiilK 1 <^ li. i t" 1"« »'^'"l^">''.'- •'■'^' I'^'t.V "',',V >Mterrog,te the
" "■"" other as to tacts necessary tor his own case,
although the answers may sliew the weakness of
the ease of the party answering. /'/l/'///M/^^ v.
lliirrixii}!. 4 I/. •!. .Sll. ( '. L. ('hiiiih. Itichards.
8ee also Unrsnuni v. //ur-iiiinii, "J \,. ,1. "Jll.
The provisions of the (', I,. I'. .\ct as to iiitor-
riigatories are apiilicahle in ejectnicnt. Wnirrr
V. /ifov/cw, .-. 1'. K. ;M,-.. (.'. r.. Clianil.. Dalton,
v. V. .'(• /'.
s in'i ! /'"' '!■ .1/i'V""" \'- y<i'i''iiiifiih, I (,>•
SjIII ; "'"' •'■ ■^'/"'''"" ^'' />'((/».<((//, 7 (I. H. 44(i-
[As to (ith'
g. \i., (1. Kiiiif" ( 'o/li'iji- V. h'lii , 1 V. L. ( 'lianih.
'. /).,m1 llii/l V- Shiiiiiiiiii, S g. li. ,VJS ; Dm-
i,n't>i>. V. S'/'".''. '•• '.>• I''- l!^0 ; -/'"' 'I- ^''</-
r\.II'i'fiii"ii, ^^i- ■*■ •*-•''•
1 .Yoiwi' /''"' ""' ' '""./'■'•■••"'";/ I^iiixe, Kn/n/, iiinl
Oll-iti I'.
liiiMuit for net confessing lease, entry, and
itfr. iiiiiltT the old practice. A]iplicatioiis to
iii\k. Sec Dm- d. r/((c/- V. MrQiiii II, HO S.
{A. A'(<vv. />'(/;-i, .S < ». S. :\\ I ; />.« d. LiLilii-r
hfir.iO. S. IWlt ; />'"' d. /.iiiiuiri/ \. .Mjiivk,
f B '.I'O ; i'w d. Fininxiiii v. Mcdirlln/, '2
nil; jy.HMl. Kvtfham v. y^(^ 3 <'. ]'. 25!).
laintitfs were nonsuited for not confessing
ditry, and ouster. ,Sul)se(iuent to the
iHiuilant executed a cognovit : Held, on
feoniiira new trial, that this was a waiver of
I iiTinal exception. Dm A. Kirr ct til. v.
tf.m^B. 180.
An onler will not he niaile under ('. .S. U.
0. c. -J 4, s. 41, as amende.l l.y -JT k U'S Vict,
c. "2."), for the exaiiiinatioii of adet'eiidant in eject-
ment against « hoiii tliert; his lieeii a judgment
for costs. Witlbr v. Fairhniin, (i 1'. li. 'i,")l.—
0. L. Chaml). -Daltmi, C C . A- l\
One of two ilefendants allowed jiidgineiit to
go liy <lefault: -Held, that he was nevertheless
liahle to he examined under the .Vdmiiiistr itioti of
j .lustice Act, IS73, sec. 'li. Hii<-i>i\ v. CnmjiUvU, (}
r. 11. -275. C. L. Chaml). -Dalton, ( '. C. A- l\
12. Riih' fur Juihjmiul.
t mhforjuilijmiiit mjitiii-it fin fu.iiiiil ejector
fcrtlieilooisiinis regarding it, see Doi- d. /fur-
jr./f.'.in.S, MS, Dm' d. MrFur/om v. /.'«<',
.;Will. IV. K. & H. Dig. p. 177 ; (,'<im/liH,-
<>„ V. ftui.M T. 1 Vict., I{. & H. Dig.
p: l)'iii\. Ilimil v. Ho,', H. T. 1 Vict., U. ^
.1% IK 17(1 ; Dw McJhiiii!,/ v. /.'<»•, H. T.
k, li. i H. Dig. p. 17(> ; Bor d. Stncl v.
IM. T. i Viet., 1!. & H. Dig. p. 17(i ; Doe d.
|ft V, /,'■», ;i (.». B. 377.
I tithe rule for judgment nisi under 13 & 14
it.",, sieElliotI v. AV, 1 P. R. 11.— P. C.
Bper.
I Jii'hjiMnI foi- Default of Appearance or
Difcnce.
I to judgment against the casual ejector,
Btheoliliiractice. See /)ofi d. Robimon v.
It T. 3 Vict., R. & H. Dig. 253 ; Doe Hen-
^ V. /Joe, 4 Q. B. 366.
15. Di'itth if PlitiiifiJ'nr Defciii/niit.
In ejectment under the old form, where the
lessor of the plaintitl' dieil liefore the trial, no
sci. fa. was necessary, Imt judgment niigiit lie
entered, and writ of ixissession i.htaiiied. />i(c d,
J/iii/ v. ///(«/, 12 t^. H. &2,-).
The 25th section of the ( '. I.. P. Act, l85l), is
applicable to judgments entered after the ('. li. P.
Act came into force, even when proceedings eoin-
ineneed and verdict had under the old practice.
Mi-('(lll,ini V. MrCii/linii, 2 I.. ■). 211. . L.
C'hanib. — Burns.
The trial took place in May, 1854, and a ver-
dict was rendered for the plaintitt'. In Haster
Term following, a rule nisi was obtained for a
new trial, but no cause was shewn until faster
Term, 185(), and in the meantime plaintitl' died.
Semble, per Kobinson, C. J., that judgment
could not be entered nunc pro tunc, and at all
events no writ of possession could issue. Per
McLean, and Burns, JJ., that judgment might
be so entered. Dary v. Cameron, 14 Q. B. 483.
The court, on a subsequent application, allowed
judgment to be entered nunc pro tunc, and a
Is
IIM
KJKCT.MKNT.
HiiKi{cMtii>ii to III' (Miti'i'i'il iif till' ilt'ikth, livvviiiK it
to Iti' aft 'fwarilH (Icttiiiiiiiril w lic'tlii'i till' ( '. I,.
I*. Act, H. '.'is, Wcilllil illPjilv lrfnw|U'itivi'lv.
.V. r. I.-, <,». II, 17,-..
'I'lir ilcllllul' mil' I'l' t«i> lillilltiUs, litter jlliji;-
iiiciit (wlicie lor itil tliiit .•i|i|ir,u.i till' iiiKVi'iy
in jiiiiit, iiiiil ?>m'vivc.sl, iliii's nut iiuilir iuM'.»iaiy
II HU!.'',{i'Htii>ii III till' ili'itli oil tlii'i'iill ill iinliT til
Hiiii|iiiit IV writ III li til, t'lir. |iom.i. Jnlnislnii ,1
III. V. MfK'1,,,,1. W I'. I!. •.>■.'!».('. !,. ('Ii.iiiili.
A. WilNiiii.
I(i. Trinl, \'i rilii'l, miil ■Imliiiiit iil.
Wlirll IIk' trrill ill lllr ilii'lir.ltiiill lllis cxpilril,
till' |ilaiiiliir is I'lititli'il til rci'iivi'r imiiiiinil ilaiii-
llgcs ami iiistK, iiltlinii>,'li li'' cuniiiit irruvi'r |iiis-
Hi'.Hsioii. Dm il. 'I.ii-I,\. .\ii->iiitni, li. T. (i \'ii:t.
A jll'lyc .it rliiiiiliil •< Il IS |iii\vi'r til set .isiilu t\
juili^uu'iit ill I'jri'lnii'iit, anil tliu hull. fui'. jmss.
isslliil tlu'll'iill. I'tijilih ir II A. C'l/in 'il V, Aliliiitl,
r> (), s. i.'4r..
Wliori' a ttiiiilit iiiovi'il to SL't asiiKi a jiiil>;
UR'ii'. .i^Miiist till' I'.isiial L'ji'otiir, mi the j^roiiinl
of I'nllnsiiiii lii'twccn tlie lessor of tiie iilaiiitill'
Itnil I lie tell nit's wile, ill Jieei'litilij,' serxiei' of
the ileeh'ii'.itioii the eoiirt refuseil to interfere, 1
mole than a year haviiij.; eliiiiseil siiiee the uxu- I
cutioll iif the writ of |iiissessiiiii . I)iii il (Ifiiii
V. /I'l-i, II. T. 4\'ict. I'. ('. .limes. ' !
Where a venliet was reiiilereil fur the |ilaiiitiir
ill ejeetllieiit, sillijeet to )iuiiits reserveil, alnl
wiliiiiiit any ,'ir;,'iinieiit uf the puiiits, the plain-
till eiitereil ailil tuiik (iiisse.Hsioii, tiie eoui't le-
fusel lu iiiteriiiise ami set the jiiili;ii'.eiit asiile
after a la)ise uf mure than two vears. /'nr d. j
J/.//.C.1 V. Tnlniiiii. I (.>. M. .">•_>(). ' I'. ('. I lager-
man.
Where t lie truant in |)(i8He8siun is .sh"wn to
have liieii aetiiig in eulliisiiin with the le.ssur uf
the plaiiitiir the eoiirt will set asiile the jmlg-
nieiit a;,'ainst the casual ejector. /'." il. Il< ii-
ili r.ioii \. I{>», X Q. H. ;tti().
The eiiiirt, tliuuiih they will set asiile a .jmlg-
ineiit olitaineil hy eolliisinn lietween the lessor of
the [ilaiiititl' anil the tenant in |iiissessioii. «ill
nut oilier the tenant in possessimi to jiay the
costs, lint will leave the lamllonl to his reineily
iimlor *lie statute II (Ico. II. //;,
\Vhere ilefemlant was a few minutes too Lite
in entering his apiiearanee, ami aftei wants
j)riini]itly ajiplieil to set asiile the jiiilgnient ii])oii
an aiiiilavit of merits, shewing the merits in ilo-
tail, the appliiatiuii was alloweil, u]iiiii the terms
of entry uf appearance, ami iiayiiieiit of costs
vithin a niuiith, utherwise siinitiions to lie ilis-
chargeil. ir((//.-v. Lilllr if <il. inul Wnllsy. Luikii
tt III., (i L. J. --'S.S. "C. L. Cliaml). Hohinsoii.
llelil, that the action of ejectment is within
sec. 18 of the Law Refonn Act, 18li8; ami
Semble, that such action must he trieil without
the intervention of a jury, subject only to the
juilge's discretion to direct one. //iuii/i/iri'ij.s v.
Jliiuti'r, 20 C. I'. 4r)«.
[Sec, now, 3't Vict. c. 19, ()., which enacts that
the claimant or defendant may reijuire the issue
to be tried, and the damfiges, if any, to be as-
sessed by a jury.]
Where the plaiiitilF declared geiierMly ii
iieithi r the eiini'i'-4sioii nor lot, ami iliV |
ilefeli led for lot ■.'.'(, and lit the tri il tin. ii'
proved title to lilt •.'•-', whieh in tl,,.,|J''''''"
alipeireil to imliide lot 'J.'! ; l|r|,|, Hi,,'
pl.liiitill' Has entitled to ageiier.d jii,l;^niiiit
til it he mint tike pos^i'ssiuii lit' III,, fj ,|.'|
at Ilis p.ril, />" A.i'irmy. I'n.-f,.,^ \\ /^ ,J
In ejeetllieiit, where the pl.lilltilf pruu . 1
title to possession of any jiait uf tlii. |,f., 'I
HUl'il fur, lit! niiisl iibtiiii ,1 Miijiit. /^,„ ij
itiiii \. I'inii-iiiii, 7 •,'. I' I I'i.
The jiiiy h.ivii|.,r fuiiii.l a K<li' I'.ii Vit.||,| J
the lihiintiir, tliuii:,di the ilel'eliil.iiit H;i,i ,11 , J
enlitlrd to the p.irt he had eleareil ; H,.|,|
giiiiiml fur a new trial, Imt fur an apiilinti,!,,'!
restrain the plaintill' froiii ti' in./ )„is!i,.,,|„.
such part. /> rrii r v. .l/.i.i./; n 'i-,,
llU'jeetmeiit under I t iV |."i ,, m ^
moreof s.'\eral |ilaiiitiirsniij,r|ii renivir. jir,
.1., silgyeited. th.'lt under see. .'i tile re |||j;||, j
a distilietion lietweell the elailil ,'niil tlli-titli. I
as to render it ineiimlieiit on iLiiiniur., „L
there is nioie thin one, to puint mit iiitii, J
nil what iir wlliisi; title they lely a.-. ;;iviu.. tij
a riiflit to the possession, ainl tu pnnesihlmj
whiili ni.'iy be either in uiie ui tluin-.
possiblv ill I third party, llnilt ,- ii ,il i,i
itlilsnii,' 10 <^. I(. (i4;».
Where several |il,iint ill's ilaim juintly. iiiittj
is nut jiriived in all of tiuiii, tliric willKia
diet tor those who prove title, and funlciuMj
against the others. II'//.*..// v. Ilni,;!, IIIC, j'
Kieetineiit Upon mortgage. hel'iinlaiit
pea red, and notice of trial was mtvi.c! nn jj
I8tli of Septeinlier for the ."llth uf ( letiiinr.
I the eveiiingof the •_*!tth ilefeiida' • si.rvi.i|,ii|.;ji
of confession on the plaiiitilf is iv.<!.|.,ii(]
thirty miles frum the a^sj. ^[^^J,
attorney had gone; and mi .ivenli
was t.ikeii, ilefendalit imt a|i|i> ,„iiji;, aiii| I
pi lintill 's attiiiiiey being igiiur.int uf tlii'miii
siiill. The court refused tu set asi.ie tliiMtiiliJ
A'u"' V. (hiiiilini, IM (,). I!. l.V.'.
In ejei'tnieiit it appeared tiiat tlir iiliintiil
recovered judgment in duwer ai;;iiii<t il'.iri
ant's landlurd, wliu had siilmiitt.'il Im i!i; ia
■and defemlint after tliis aetiuii h;iii att..nnl|
the iilaintitl' and paid rent tu \m att.niJ
There had been alsu a deiiialiil uf p(l<^^^^ili:li
Held, that the plaintill' was eiititliil tiiaviriH
and juilgiiieiit fur eiists, imt imt tn ,i «r;tj
jiossessimi, for she hail accept.'il ii hii.laiil .
tenant. /•'/'.</;< /• v. ,/. Iiii.i/iiii, 'I't (,'. li. liM
'^I'liu court has power tu grant a ik'M ';
half of a lot of l.'inil, aliuHiiig tlu' vtil;.!!
stand as to the other li.ilf, wlie i tiiu graiitf
of such new trial is in theilisei'etii.'uil tliii
and this in an action \ii ejeetir .t. Wkrol
new trial is ordered ex dehitu j'.>!iti;f, filial
record is thrown open ; ami this will lit-ilnW
ejectment, unless the del'iiidant o'lijiiil 1
verdict standing for such pnitiun nt tlii' biiJj
I the plaintirt' has faili^d to piuve titli't".
statute governing the action uf ejcitiiioiitinJl
lit divisible both us to the laiuls r.iul tlifinij
! claiming them. MrXah v. .Sinnirl, l.'i t'-
The old practice of al lowing :i iilaiiitilf, 1
' ancceeded as to part of the laiul, tu tiskf aj
' diet for the whole, and tu iii'(ici'i.il tliemi
I'd! v'l'IH'nlly, ,t,,,^_,
r lot, mill iliMiiJ,!
till tnil III.. |,|,;,,j|
icli in tlir ilc.,r|i.
UH: IliU tlu, ,,.
H'liiTiil |'i'l';niii;t,,,J
Hiiiii nt llir n;lit !,J
■.''".•'.■', M,T. tV,
ir |iUiiilitV [iriiN,.
■ li:\rl "f tile iiri'iiin
. vonlii't. /)hi il. >i
11 ;j<'llrl';il viTiliit I
dclVliilaiit H,\i> III Jij
id .•liMl-cil : IliM,
lit till' iill aluilliitMiJ
III ti' 'I''' ViWi's.iiiii
11..'/; I', ;i:;i.
fi\:> .. r, lU.iii,,:,
iiiiylit ri'fiivt-r. |ir:i|i
r HfC. .'» tluTl' llii:;lit ll
i i.'liiilil :illil till- tUli'.J
(.'lit oil rlaiiiMii'-. wM
:o |ioiiit iiiit HI till t'J
licy Vfly :i» Kiviu.' ttd
, mill to iuMvcsui'litiill
I olli' oi tlu'iiwlvtj.j
J , I III III I- 1 1 III. . /J
lis rl.iim jiiiiitly. liiiil;!|
lll'lll, tliiTc will 1» Mvd
• tillr, ilMil I'lil iKlill'i^
/...,/, V. /;h;,-./, I'.icr.s
irtuii;.'!'. lU'tVinliiiit 1
trial wan Mi'Vi'il mi :|
;lic liOtll ol (Miiinr.
clrt'cinla' 'scrvi'iliurt
aiiitill' is ivs'lviid
a^isi. villi'
1(111 .iv.MI
imt ali|K.uili);, iUi'lt
\il ii^llolMIlt ol tlll'liilliJ
iT III si'lasiiK'tlaVir'li^
1'.. l.v.'.
iivil that the liliiliti;
ill
\wr a;^aiibt ilviril
I -uliiiiittfil tiitliv liiJ
rtloll liai
attiii'inl
,t til lu'V att'inJ
ili-iiiali
was I'
ll of llllS-l'-
lititli'ilto:iVir>li
It nut til :i «ntl
.•lit:
.<h,ii,
,1 l,i\|iil;iiit,.-lj
,"i (I. 1'.. til"
ii9'
IMKCTMKNT.
119K
linK Ioiij{ «iii<'i' I'lMWfil to III' till' iiiit' |i|aintill jiftirwiirilH niiii'tlv t'efiiiiiiiiMlics tlmf
III til
rtloll ot I'Jl'l
tlllrlit, as lii'M ill tile liint
(livisilil
, liiml '"!''
i,|.'r ni.'i'l'-' '
iiiliiiK'li'' I' ,
l,|,ilntitl to that 1
issi'siiiiii III <'oiisi'i|iic'iiro of III ariiio flint ail
(',S. r. t '. c. '2', iioth iiijiiintioii hail isiinil tiimi the ( 'mirt of i 'h ui
|iai'ti('H : lli'lil, tht'i't'fori', that niy : llolil, that ii|ioii the iiijiiiirtioii l><'iiiu
V th' ' ' ■ ■ • ■ ■ , • . . . . .
stra, liV
u' jiiilt'i' who tiiril I ho riiUHc iliKsolxcil, tluy i oiiM not oi'imt tin' |plaiiilill' a
niliiiiiiU
tl
(lilt ol' alniM M lit of
iitioii tor wliii h III' hail 'A
|iiiH.'«rsn|ii|| .
hn
l>iinii V, III
.■> (.». II. 'JOS.
aiiil ri'ioiiliiij; a vcnliit lor ili'li'inhiiit
thus rntitliim till' latter tothi'
, til.' n'sunu'
III ili'Irllia'
lie iii«i
|»i,lliir the i'lii'l
fur that rcriiliii', ami ilini'tiiijij
jirilli* ncord to hi' di'liMinl to ilrf«'l|.
iiiii'|ioM> III' Hiirh aiiii'iiiliiiciit, had
1\ niailc Milliiili V. 1,11, It! ( '.
l'|iiin till' fai tx III this i asc it wii llilil that
th<' riiiii'l had no authority , iimU'i tin I'Ji h < laiiso
of .V.Mii'ii. III. I'. Ill, to st i\ |iriM I I'diiii^s until
th. . . • .
il.'l
ciidiiiil ri'i'i'iv III
till
valilr o
I h
iits, or until tilt' |ihiiiitiir convcyi'd the
to urant am-wm;
al:lil
.^ till' vcfl'-
hall, wlif 1 the ('■■'
(if tlli'V
WIktJ
iillowii
llioili-rl'otli.'l
|t I'H'i'i
ili'liitn
iltli
.the
,l,'i
nil this ttill '"'
I'fi'iiilaiit ii'iisi-'"
tii.u uf till' ta'H
h \"
11 to 111
Iii'tidii ol "-'J"-'
title tl'.
.'tiiieiit mil
thi
laiiils Mi'l tlie i*
\h V. Stiii-ai'l,
allowing « 1"
If tlu' laiiil. t'
lid to iiroct't'i
l,VA.
laiiitilf. 1
take a i
i\\em
;il.v
ilefi'iiilaiit di'fiiiili'd for till' whole, ^iviny
e as tenant in ioiumioii, under
I'tliieii
iitit'i'iil ileleln
land ill diiii|illte. hn
II. 1-17.
\VI
.Sill
ll
11X1, M (.>.
nil' a :nle has
taki
ait aii'l Mi'i'Veil
'"I 111 tlie
[111. 'Viill'lll'l'
t .\et, (', s. r. (•
,- for the landlord tiMlefeinl, the h'N^
■rol tl
iIm
nJicMi'il Ihatrhe was t lititlcil to
liiViili'il iiioii'ty : liiit. Mi'l'l. <h at defendant
ti'il iier defeiiee, the plaiiitiir was
till. tllollL;h
•aslial e|eetol, has II
may .si;.'n ,jiid;;ii
lehl against the
ht to taki t
ih. fll
itiioiit
ea\e ol
kit liiiviiiK
nut.
hii
Mm/ii
,titl,il tn the postea.
/..
Liir/i ,/„/., -24
I ('. I.. Chi
iB.;«
\VI
Mil). Iloliinsoii.
lele the Wilt was is-io'd within one year
[Tlii'liUiiiti'l'"'''' "*■''
Lliviileil third jiarts,
Id (iititleil to recover tW'ii
it was nr;;eil, on the
iiliviileil tliini (laris. ii was in^'u me
itlmnty iif the 1 ist ease that th«' lilaiiitiir lieiiiK
llilmi elititli'ii, the |iostoil sliollhl he awarded
I liiiii generally : Imt, Meld, not, the proeeed-
ij^iililiiilli sides in that and other e.iseM havilij,'
fetll ilmiti'i to tr\ the title to the whole.
|j,*,-v. ilit'iKi'j'; '2^H). It. '2X\.
I" -•iiriiripllj.'ht ejeetliielit ilKailut the defeli-
lie ll.'id i|llitted iMissessiini of the pl'e-
nlltstii 1. hefeiidant appi aied, not
fciliiiihisihleiK''. nor statin;; the nature of his
iciaiiii. Imt at the same tinu' he '•erveil a
hill, 'II the |ilaiiiliir's attorney that In did not
Lllii'iihiuil ill's title, and had oiveii up pos-
L'li iiiniiL' aetioii linmglit. 'riie pliiiiititl',
fctrtheliS'S took the reeord down to trial: —
■", tli.it lilioli sllell notice the phiintiH' (•(illlil
liVi.. »if;iieil iildgiue'lit. Ilinjii r \'. I.kii'iiiIi k,
V I'l. lllll.
.Ijiiari, \KV liiiliiiisoii, ( '. d., whether, if defeii-
Lt al'liear, hut omit to ;;ive iiotiee of the
Wtiit lii> title, the iilaiiiiitr may sii;ii jiidg-
tuasf.ii uant of an aiipearaiiee. Hi.
Jlu'ti there is a limited defeiiee, it is invgu-
Mthf iiliiiitill to enter judgment without
'.'iitiiiiiiii,:,' a judge's order, or a rule of court,
'ri/iii.' the siu'uiiig of Judglneiit, which rule
.Mir, nr a iliiplieatc thereof, iiin.-^t, under
It', ill lili'il tii;;ether with tin.' writ, lliirnlil
. 1. sini-iirt ,/ III., \\ I', u, ;!:ri. -'■ '
ill.- .\. Wilson.
-C. I..
17. E.ii I'lilhni.
(a) li'iiirtilli/.
BViiirv, ,'iftir the execution of a writ of lial).
ll»iss.. the tenant who had lieeii in possession
M t'l sit aside tl'.e proceci tings for irregu-
Ety. mill his rule having heeii discharged,
bfiliately fureihly dispoHsos.scd the lessor of
jplaiiititf, the eimrt granted a now writ, the
1 nut having heeii returned by the sherifl',
I iinlereil that the defendant should pay the
■ lit the ,iii]ilieati(iii within a month. Jhir d.
|i-v. i;»,'jy. B. 27,
Ifhtre the sheriff puts a plaintiff in posses-
'l miller a writ of hab. fac. poss,, and the
lifter entry of jndgnient an alias writ issneil
more than si.\ v. .iis thereafter is regular with-
out reviving the jmlginent. Julnisiui, v. ,1/c-
Kniiiii, W V. I!. •.'•-•!!. ('. I,. Chaml., A. Wilson.
Wheii' the sherilV letiiined to till' lirxt writ of
habeas, that "iioiie eaine toreei-ivi posses.simi,"
the presumption of leliasi' of llie iiidgnn nt did
not ari.se in the same m.innei an if nothing had
been done upon the jiidemelit. Hi.
'I'lie writ miiy be executed by the removal
from piKssession of a person who was the widow
of a person that elaiined limler a jildgiiielit de-
fendant. Hi.
I'lider the eireiiiii-laiiees set out in this ease,
' a new writ of li.ib. lac, [los. (the lirst li;i\ ing been
executed and returned.) was refused : Wilson r.
Chaiiton, (1 I,, 'r, .\. S. 2Ti\ fol|o,ved, h'l/niiri/^
V. Uniiiill, .-) I', I!, Il.l. \\ C. (iwyniie.
No such lelii'f will be ','iveii to a iihiintiH' w hen
tln' iiartio agaiii.-t whom the a]iplii','ition Is iii.ide
do not assert title throii;,;ii the defeiid.iiit. but in
some (itlicr way, .iiid w here no forcible taking
\ piisses.sioii or exiuilsidii of the plaiiitill'. or inter-
I Icrclice with the plaiiitilt's officer in the exeeii-
I tioii of the writ, is shewn. /'<,
i Seiiible, the writ of execution shniild, as in
other actions, follow the jiidgnicnt ; and where,
by reason of a limited defence, the ]ilaiiilill' is
entitled to recover less than he claims in his
I writ of summons, there should be some entry
j on the roll to aiitlioi i/e the deviation. Ilmulil
{v. Stnnirf, .'f 1'. U. X\X ('. I,. Chanib.— A.
I Wilson.
I Staving the e.iiecutioii of writ of possession. —
.See \. 1, ,S, p. I -JO.-).
(b) ItiMiliit'iii)!, mill A/liir/iiiii lit fur Iii.iiniiiiiij
J'v.<.tlX.li{ill.
In ejectment an attachment was refused against
the original tenant, who resuineil possession more
tiian a year after execution executed. Dm d.
J/.(/« /.s V. No<; T. T. 3 & 4 \'iet.
A writ of hab, fac. [loss. was completely e>ecut-
ed, and po.ssession given to plaintitl'. Three weeks
after, defendant (claiming to be eiiuitably entitled,
and who was infornieil and found that the
\n
1199
EJECTMENT.
m I
premises were vacant, and the door of the house
iinfasteneil, and who denied knowledge of wlio
ojtened it,) retook possession. A rnle to rede-
liver possession to plaintiff or to attaclx defendant
as for contempt, was refused. McDcrmitIt v.
McDermoH, 41'. R. 252.— P. C— Jlorrison.
Wliere a writ of liab. fac . poss. was executed
before an injunction restraining such proceeding
could l)e served, but the plaintiffs in ejectment
had been informed of the intention to apply for
the injunction, the court, under the circum-
stances, granted a mandatory injunction requir-
ing the possession to ha rcilelivered to the
defendants in tliat suit, pending an appeal to
tlie ( !ourt of Krror and Appeal against a decree
dismissing a bill filed by thoni to redeem. ('</;«/<-
hill V. Tliv i'ni/dl CiUKtilinn Bind; 10 Chy. 477.
18. Amembiunt of Prufti'dinijs.
(a) Bfi Aihliiiij anil Striking out Partus.
Quiure, as to the eflect o f a niisjoinder of
plaintiffs in ejectment under the 14 ;t 15 Vict,
c. 114. Yijuiiij I't al. v. Stohh, 10 Q. b. .S72.
A judge's order was ol)tained to amend the
proceedings after the cf)nsent rule and plea UmX
been filed, (by adding three new demises, ) and
no proceedings had been taken under the oriler
until tlie commission day of the Assizes —
some moutlis after the granting of the onler —
when tlie nisi prius record was passed with addi-
tional demises. The record was entered for
trial, and after the jury had been sworn, and the
plaintiffs had given evidence, defendants objected
to the amendment, and refused to confess lease,
entry and ouster, except to the original demises,
and a verdict was entered for the jilaintiffs on
the original demises only : — Held, on an applica-
tion to set aside the verdict <in the original
demises, that the new demises added to the nisi
prius record did not violate the nisi prius record
or verdict ; and that the lessors of the plaintiff
could abandon the order to amend. DotiX. Du[f'
it al. v. JJviiiinll I't al., 2 C". P. I(i9.
Held, also, that after defendants apj)earing
and confessing the lease, &c., it was too late to
object to the regxdarity of the notice of trial, /h.
Application to add to a declaration in eject-
ment a tlemise by A. B., after issue joined, was
refused under the circumstances <if the case.
JJoi' d. XirhiilK V. ilirini it nl., 1 V. h. C'hamb.
'99. — Macaulay.
Held, that the (". L. P. Act does not authorize
the striking out of all the })laintiffs' names in a
summons in ejectment, and substituting a new
set therefor, after tiie entry of the record for
trial. HiMnmn v. Bill, anil ViiKhimlfr v. Bell,
9 C. P. 21.
Held, on the authority of Blake r. Done, 7 H.
& I^. 4()5, that a judge at Nisi I'rius has power,
under s. 222 of C. L. P, Act, to amend by adding
parties, where such amendment is necessary for
the purpose of determining the real (question in
controversy : — Held, also, that the guardian of
an infant, cappointed uni>;r C. S. U. C. c. 74, can
under sec. 5 consent to the name of the infant
being so added as plaintiif in an action of eject-
ment which seems to be for the latter's benefit.
Oyilvie v. McRory, 15 C. P. 557.
Quaere, whether such consent shdiiM L I
writing ; but the point not having 1,een rai«1
at the trial, the court refused to Liittrtain tk
objection. Ih. ' * '
On the argument in term, it w:us .AAmx
that as F., who had been joined a.s a iiluintitl « 1
the trial, was not present when the aiiiuinlinf.
was made, his consent in Mritiiij,' sli,„ii,i ],„
lieen filed ;— Hehl, that thoiigli tlii.s (ibjiotiinwaj
raised at the time the ameiidiiifnt \v:i^ nn.L
yet as F. afterwards appeared and wa.s cxaniinJJ
as a witness, and no question was then xim.,\A
to his assenting or iion-assentiiiK, ainl tlie jii.! J
reported that there really was iki i|iRsti.inal,MJ
it, the court would not entertain tlio ubieitini I
HniilerMU v. White, 23 (.'. P. 78. ^ '
The plaintiffs claimed under a duuil fnnn R
and defendants under a lease fidni T. ami li
wife, trustees of the [daiiititts. '|'lii> piiintiifj
proved a deed under which the juiljiu luM that
T. and his wife took the legal cstat^ astiiMitil
for the plaintiffs. 1'lie plaiiititis then a]i|rlit,l t„|
make T. and wife plaintifis, and to .uM a ilvml
by them for an alleged forfeiture .if tlidr \nA
' to defendant under which dcFonilant ilaiimd :--|
I Held, that such application was ]ii(iiRTlvrtiii<t4|
Mitchell I't al. v. Stiiellk', 20 C. P. 38!»."
See IV. 1 (a), p. 1177.
(b) Of Xutii-e nf Tith.
Where the notice of defemlant's title \va« ii'ij
addressed to the plaintiff as reiiuireil byC.
P. Act, 185(), s. 224, the defemlaiit, mi '\\\„in
to set aside the appciU-ancc and enter jiKb.iiiint,!
was allowed to amend Lis notice on iiaviiiintnfl
costs. Thinnpxim v. Welrh, ,S I,. .1, i;j,i-C. L|
Chamb.- -Hagarty.
Hehl, that a judge at Nisi Prius had im |iM»fr|
to amend a notice of title. Muriiiin v. (',„,;, |)|
Q. B. 599; but sec the cases f(iliii« iii!.'.
Leave was given to plaintiif in ejeetiiitut I
amend his notice of title by setting up a ildulj
claim, notwithstanding delay on his |i,irt id
making the application. Tnrltii v. ir(7/iiim*fli
10 L. J. 188.— C. L. C'hamb. -iiraiier.
In ejectment the judge at Nisi I'riiis gniiiii>|
a summons to amend tlie plaintiff's iietict (
title, returnable before himsclt in cliamliors i
half an hour, and upon it made an urderlnr tli4
amendment. The case then pnieeedeil, an.! m
plaintiff had a verdict. J'ln-Miiix v. Fn-nk,i
(}. B. 380.
Under sec. 222 ('. h. P. Act, a jti<lge at .Mi
Prius has the same power of anieinliiientinijrtl
nient as in any other action ; and a Nisi I'nM
amendment of a plaintiff's notioe nt title fti
therefore held properly made. ('liaiUiii\. "
win, 17 C. P. G29.
The plaintiffs claimed under a deed fi'Diii BJ
and defendants under a lea.se I'ldin T. ami '
wife, trustees of the plaintitl's. The iiLiiiitii
proved a deed, under which the jiiilge heUtli^j
T. and his wife took the le^al estate, as trusW
for the plaintiffs. The plaintitts then aiiiilitill
make T. and wife plaintiffs, and tuaililacla
by them for an alleged forfeiture (if their Itasel
defendant, under which defendant claim«l:-
Held, that such application was properly refast
Mitchell tt al. v. Smdlie, 20 C. V. 389.
'wi'4s;i
12f)0|
iiscnt shoiiW In ,n I
having l)eti\ rais*,! |
eil til futertaiu tie
111, it \v:us ul,jt,.t(,i|
iiiud as a iilaiutiH al I
lien tlic aiiii'iiilintiit 1
writin;,' sliuuMluv; I
gli this ul)jti'tiii;i wail
uiuhiR'iit was iii:i4e, I
L'llanil was oxiiniintilj
111 was then nisi'.lajl
itiiii.', ami the jmlgJ
as nil i|in.-stiiinal».ntl
L'rtain tht- ulijecti'iil
.'. 78.
iilcr a ilcL'il iiiiiii B.,
L'asu from T. ainl liiij
titl's. The iiliiiitilfil
, thi.; jiulge Ill-Ill tliatl
L'i;al estate as tnbUtsI
iiititVs then ajiiiliiiltol
s, anil til ailil a (iaiml
rfi'itniv iif tlieir liiiel
ilot'eiiilant elaiiiiei! ;-|
was ]irii])ei'lv rtlihnll
0'-'. r. :«!).■
, 1). 1177.
'■ufTith'.
fciiilant's title \v;i~
r as renuiivil liyi', l..|
ilufemlaiit. nil iii"!!*!
.•e anil enter juil.'UiditT
s notice on \iavmral "fl
,7(, .H 1.. .1. Ud-t.Ll
isi Prills hail an \*mn
.l/,„v,,(» V. '',„,!•, 1^
ses fiillowiiig.
lintiff in ejectmiirt td
ly settiiii,' up a ilmil'lll
lelay nil his yM
'I'lirh II V. \Villiniii"*H
ill. -Diaper.
.■ at Nisi rriusgraiiU'(J
u plaintiff's iietia' (
Tiiscli in eluiiiilieP ill
luaile an onler Inr tw
en pnieeeileil, .iii'lthl
'iu:<i'iis V. ficW'i;/, i
. Aet, a jiiilf^e at Ni^
iif aineiiiliMeiitini.'Jn^
Ition ; ami a Nisi M
liiitiee of titk' '■^
Lilo. r/(r(i/.<i;/v. ;.''i#
lumleraileedfnmiBJ
llease from 'l'^ '""' 'J
lintilVs. Tlie 1)1;«"';1
Ih the juilgeW™
tgal estate, as trusW
Vintitfs then aiipliall
ks, anil t«ailila«
feituru of their Icasetl
laefeiulant daimt.!;^
li was properly reW
to C. 1'. 38'J.
1201
EJECTMENT.
]ii02
In eieetmeiit the plaintiff claimed under a niort-
I nacf maile hv defendant, and defendant under
a lieeil fi'oiii "the plaintifl', the mortgage having
been dven to secure part <if the purchase money.
Dcfeiiilaiit iiroveil a judgment in an action of
covenant hronght by tiio plaintiff against the
delciiilant on this mortgage to recover the money
KCtireil thereby, in which defendant pleaded
that tlie mortgage had lieeii obtained by fraud,
ami iiiil'meiit was given in his favour on that
issue ; -Held, that the defendant could not .set
niitiie jiiilgineiit as a tlefeiiee to this action, not
havini: placed the plaintiff in statu (juoby ..-.tor-
jujjtohiin possession of the premises. Seinble,
that tlie [ilaiiitilf's notice of claim was sutlicient,
j,„l tii.it, if necessary , an amendment of it would
iiivi' been alliiwed iiimc pro tunc. I'lurldl v.
tf,,;,,,,, :>:!<'. r. 175.
SeefiVW^' V. /w'(VH(7.f^(», 17 C P. 1.5, p. 1181.
It is no objection to the record, on the part of
a defendant, that it omits the entry of jiidgnieiit
as to the undefended jiart of the land, lirovided
it contain the issue raised by him. ///.
The court in liauc after verdict ami exception
taken, amended the record by adding the words
" lands and preiiii
It'iiliiiit v. llinil-'.
es to the property sued for.
17 ('. 1'. 8S.
(e) Of lieroril (tf Xiv Priii.i.
Ameiiihuent allowed by correcting date of du-
[ma. /)'"' d. SiiK'lnir \. Armtlil, 1 Q. B. 42.
In ejectment by tenants in common (m a joint
deuiise, au ameuduient to separate demises not
jllfwtil. Doe d. Amiemun et al. v. Errbujton, 1
y. B. 15il.
Oi ileraiso in a declaration of ejectment, fi'oin
jriiiit tenancy to a tenancy in cimimoii, refused.
i/il. Ciiri'lUrr (i 111. v. James, 4 Q. B. 41)0.
lathe name of the lessor of plaintiffs in eject-
lllient ; Qna-re, whether allowable. Doe d. A iik-
lmii\.il'>im', 1 g. B. IGO.
Alloweil at Nisi Prius, to a plaintiff in eject-
liieDt, til amend the record, but not made at the
Itinie. refused afterwards. .S'. ('. lb. 277.
Where ejectment was brought by the heir-at-
1ȴ against hia ancestor's widow, ami the demise
! improperly laid before the 40 days of ipiar-
iptine hail expired ; — Held, that the demise
ijhtl; amended at Nisi Prius, and that evi-
Stncf of the ancestor's possession was rightly
m-il. iJiif d. Cdiiivjhaii v. Vallaqhan, 1 C.
1P.J4S.
QuOTe, whether the 40th rule of H. T. 13
Firt.. giving the form of Nisi Prius record, does
Mtapiilytn ejectments, and whether, therefore,
tore n\is any ground for the ex'ception taken,
«tii errms in the placita ? An award of venire
• nut ikce.-sary. Due A. Sprimicr v. Miller, 10
f*w. also, as to objections to and amendment
ptlieplaeitaand continuances. Doed. Sherrard
I In cjettment a judge at Nisi Prius lias power
l» annul the record by ad<ling a venire, and in-
Fting the dates in the notices annexed, thereto.
tirmijUm v. Fnll, 15 0. P. 541.
I The want of an appearance on the record may
■ aiemleil after trial; but the objection is
iveil, anil the amendment unnecessary, if de-
aunt apiicar and go into his defence. Johmon
F»' V. JMenim, 10 Q. B. 520,
I The record may be amended at the trial by
JJiang the plea required under 14& 15 Vict. c.
I". Dmmn v. St. Clair, 14 Q. B. 97.
I (e) Olhir f W.«-.v.
All ameiidinent was refused in a declaration in
cjectiiioiit by .ilteriiig the iiaiiu' of the township
in which the lands lay. Dof v. /iV, Dra. 170.
Where upon two scjiaratc demises in a <le-
claration a verdict jiasses for the plaiiitiif on one
and for defendant on the other, the i^nnrt will
not, upon defendant's application, strike out the
i demise to the successful plaintilf on the groniul
I of want of authority for suing in his name, ex-
cept in very clear cases. /)ur d. SIhijimhii et
(I I. V. ^f,l/l,l>| ,t al., (» (,). B. 30'.'.
In ejectment, defendant may amend his ap-
jioaraiicc if tiled without the notice rcijuired by
('. L. P. .Act, IS.'if), s. 224. Ti-iisl ,i„il l.oiiiiCi}.
V. EtUoii, 3 L. .1. (iO.—C. L. Chamb. --Mcl,ean.
I Defendant will be admitted to amend his ap-
pearance on jiaynieiit of costs, where he has
omitted to tile the rei[uisitc notice of title, but
, he must avail himself of leave to amend within
[ a reasonable time, and if plaintid' refuse to state
j or receive the amount of costs of amendment,
i the amendment mav be made before payment of
\ costs. Diiffill V. L,nr,l,r, 4 L. J. 137.— C L.
Chamb. — itobinson.
[ Where ejectment, brought under the old prao-
j tice in 1848, had lieeii stayed for security for
costs, and the demise had expired nine years
: since, the court refu.sed an amendment by en-
larging the term, which would have deprived
j defendant of a title acipiired under the .Statute
of Lhnitations. Doi- d. Day v. Bennett, 21 Q.
B. 405.
19. Other Canen relating to Practice.
The order of this court which authorizes rules
to be taken out in the deputy's otlice, in the
cimntry, does not include rules nisi in ejectment.
Doe d. Cl((rke v. L'oe, Tay. 247.
A lessor in ejectment will not be allowed to
release the action. Doe d. Jioi/er v. Ctati.s, 3 O.
S. 14«.
The Court has power to grant a new trial as
to half of a lot of land, allowing the verdict to
stand as to the other half when the granting of
such new trial is in the discretion of the court ;
and this in an action of ejectment. When a new
trial is ordered ex deliito justitia", the whole
record is thrown open ; and this will bo done in
ejectment unless the defendant consents to a
verdict standing for such part of the land as tho
plaintitt' has failed to prove title to. McNah v.
Stewart, 15 C. P. 189.
The C. S. U. C. c. 27, governing the action of
ejectment, makes it divisilile both as to the lauds
and the parties claiming them. Il>.
In an ejectment on the several demises of the
lessor iu different representative characters, and
n
1203
also ill bis imlividnal right, an .affidavit to set
aside proot-'uiliiigs intituled in the demises on
his reid'eseiitative eharacter alone, was held in-
siiliieieiit. Udc iI. SIml <■/. <tl. v. Jioi/, K. T.
3 Vict.
EJECTMENT.
Wliere ejectment had been hr
I2i>l
purchaser of lands alleged to Lave l.ili, i]|' ,r
sold for taxes, tlie court declined tu inttifer 1
injunction to restrain the action. The iJ "^
course in such a ease, in the event i if the J?
being found invalid, is for the owner to tfiul
deed to the purciiaser for executi( m. arid (.n i,;'''
fusal to execute such a deed, to a
As to the necessity for the placita, continu-
ances, jiirita, ite. , in the record i'l ejectment
under the old lu'actice. J>i>(-d. liurnlntiii v. .S'im-
■iiH,ml.-<, 7 (). H. .'.OS ; />(«■ d. .ir/As v. Kilhj, 2 (,'.
1'. 1 ; !)<>,■ d. Ciiiiinii-x v. A'oc, (^». B. 82 ; Ihn
d. S„riw„-r V. Milkr, 10 Q. B. 57. , .„.„.„ „ „ .....„..„„ .„ ,,,, ,,,,_
One month's notice of intention to proceed is | ci'iiveyance thereof executed i,y the sli, iiii' ,'„'
necessary in ejectment as in other actions, when | l'<;rtnig to convey the same to tlio
for relief. liaiitlieri/ir v. Mrkuii, i;, (1,^ .j,,. j
The equity of redemption in niiiit;;a,r,.,i ,, I
luises, was sold under execution .it h " *'
four terms have passed without an^' proceed
ing.s. The /!i,i/in/t <;/' Torontd v. C(iiitn\ll, 11 C
P. 371.
.Senihle, tliat the Kjectnient Act, C. S. U.C.
c. 27, as it stands, is intended to contain all pro-
visions necessary to carry out pineeedings in
ejectment. Lt-i-.-Kni v. /liijijliif, 4 V. R. 340. —
C, L. Cliaml*. ^Draper.
Where a defendant tiles his appearance the
cause is at issue, and tlie plaintitl' may serve
issue hook and n.itice of trial. ( 'axa/ v. McUrath,
11 L. J. 330. -C. L. Chamb.— Dalton, C. C. ,f P.
V. Staying I'koceeding.s.
1. Bji Injunction,
An injunction may be gr.inted in actions of
ejectment. Ii(ildni< v. Porlii; '2 L. J. 230; JitU
V. W/iitc, 3 L. .1. 107 ; Fraser v. Robins et al., 2
r. 11. I(i2, 3L. J. 112.
The .above decisions arc not now to be fol-
lowed ; Burns, J., having decided, on the author-
ity of Baylis r. Le (iros, 2 C. B. N. S. 318, that
the C. L. V. Act does not .authorize the issuing
of injunctions in actions of ejectment. The other
judges concurred in the above decision. Land
V. dilkinsiin tit (il., 7 L. J. I'll.
But now, under the Administr.ation of Justice
Act, 1873, sec. 8, an ex parte injunction may be
granted. Kidd v. Ctd/wort/i. — Q. B. — I'er A.
Wilson, 14th Dec. 1S7">. Not yet reported.
The owner of lands agreed to sell a portion,
and admitted the party into possession, who
improved the premises, and afterwards oll'ered
to sell his improvements back to his vendor.
For the purpose of ascertaining the amount to
be i)aid, it was referred to arbitrators, who
nia(le an award, the terms of which were never
complied with, and tlie vendor afterwards Jirought
ejectment against the party in possession. The
court gr.anted an interim injunction, restraining
the plaintitl' from executing a writ of possession.
Cook v. Sniit/i, 4 Chy. 441.
Upon a contract tor sale of land, the purch.aser
was let into possession ; the vendor, instead of
com[)lyiiig with hi.^ veiuleu's demand for iiii ab-
stract of title, brought ejectment, so as 'o i;onipel
payment of the [luivluwe money ; and tlie pur-
chaser defended that .action, an<l did not proceed
in this court until the vendor had recovered
judgment. On investigating the title it w.as
round to bo b.ad. The court, although it gave
the purchaser relief so far as restraining the pro-
ceedings in ejectment, refused liiiu his costs of
liis defence at law, but gave him his costs iu this
court. Winlem v. Sutton, 12 Chy. 1 13.
who subsecjuently p.aid oil tlie nnntu
['"sillier I
from the mortgagee a statutoi;v ilisrTiar'o tl "
which he caused to be regi.steiiij,
pos.session of the mortgaged
ceeding at law, the sale
clared void in eon.se(juenee of the iiivalii!itv„f
the writ under which ho had as.sumod to sill 1
HeM, that the purchaser was entitled to r
11-Tl.ViJ
""' Wfllt ilitJ
proiKi-ty. iiia|,rn.l
y tin: shuritl' wa.s.l;.f
ejectment brought by the mort"aL'o|-
Art-, 17 Chy. 4M.
I'straml
fn. Ejfctinen.
;.'(>, nt>w
J[(irt<iwii-is nndn- 7 dto 1 1 , 1
■ 'V. U. V. c. ..'7\ ,. 71 ' '
A judgment and execution in ejoctiiieut nn
mortgage will be set aside in favour of M\m
cent purchaser without notice, so astoeiialj
him to redeem on payment of costs, imiiirj]
(.ieo. 11. c. 20. J)oi' d. Mdhurni' v. SihhiM
4 0.8.330.
A. having purch.ased land, ami jiaid sive;
instalments, Imt received no deed, assit'iieill;
right to B., taking a bond Inmi liimtkitii
shouhl obtain the deed, on the lia\ naiit k .1.1
to him of £100, in two years, he w'oiiM oin'iviy
to A. : — Hehl, on ejectment liy !>., tliu twi
years having expired, that A. uoiild not treal
the bond as a mortgage, and recUuiii uuikr till
act. Dof d. S/koiiioii v. Ji'oi, o O. S. 4s4.
In ejectment on a mortgage, tlie imirt w:
not order the proceedings to be stayed, amlari
conveyance under 7 Ceo. II. o. L'(i, on [lajiiMl
into court by d»^fendant of the money ciiii'iijioi
the bond and mortgage, to'4etlier with tin.' wsl
of the action, where the wiinle amount stoiin
by the mortgage is not adniitteil to In' dut; ni
will a reference to the master lie ordei'uil t",i
certain the amount .actually due. /Jm d. .1/i
Kenzie I't al. v. liutlnrfunl, 1 t^». 1!. 17l>.
A defendant in ejectment applying tu sta]
proceedings on p.ayment of the niortgai;^ iii"ii<
must be the person who has the right to rcikc
and therefore a motion by the tenant "I
assignee of a lease I'lU' years fnnii tlie htirett
mortgagor, was refused. Hut iiido|iiiidiiitly
this ground, the facts, as set out, would iiavi-:
the court from interfering suniniarilv. M'b'in
V. Jhmii, 11 (,». B. 318.
Held, that this case could not, uiiou tliccoi
tradictory athdavits, be ccin.-;idei'ed as within ti
.act. Co/'v/y. I'd/.-, 1 1'. I!. •.'10.--r.('.-lin|«i
A mortgagor is not, under 7 ••<;". II.
entitleil as of course to redecni, liooaiisi' t
plaintitT has given no notice denying thui^'iil
but the plaintiff may still shew that the case
not one within the statute, //>.
See Qoodtt'e v. Wtdlace, 24 (J. IS. .31, p. W'X
l-'Oo
EJECTMENT.
120G
(('('.s' iinihr 7 '/to. //. r,\
laiui, aiitl \m\ swcral
. Ill) (leL'il, iissigiii'tl liii
111 In (in liiiii tb.it ii iiel
OH the iiayiiiL-iit iivA,!
ruars, 1k' wnuld miivcjl
iiRMit liy r>., tliu tffC
|iat A. cimlil nut tnatf
iikI vfiUuiu uiiilvi- th^
, .")(>. S. 4>>4.
lul.l not, uimii tho ooi
TiisiikTolaswitluutM
..lo.-1'.C.-l'rsFl
3. Other CdMP.^.
I'lMin tlio facts of this case it was : —Held,
liliitthefimrt had no aiitliin'ity uiuler tliu 12tli
Ihusuiif •"'" '''■'"■ "'•'''• '■*■' to stay l>i-oceL>(liiig.s
I itii till' ilefoiiilaiit roouiveil the value of liis
Ihm.rdVoiiu'Dts, or until tlie plaintitl' conveyed
|.| I ).,||,l ill ilisi)ute. /hit d. Sfiiirf v. /his.t, 8
Iq.'r 147.
fiiis ccmrt will "ot intei-pose summarily to
llfwive '1 plaiiitirt" in ejeotiuent of the full henelit
I (ii'jwrit, hy ro-itr lining him from takinj,' \>oh-
lo.wiimiil inrt of the premises recovered, exei^pt
lin a very I'li''" '-''**"'• Where, therefore, the
Idefeiice iirgcil was one under the Statute of
Jniititii'i'S' and unjust under the eirciiinst luees,
KniltliiMV lii'l he-" contradietory evidence, and
Inoiiiisilirectiiin, they refused to interfere. Ifvin-
(i;„,,r.r7 V. U'liliiiiiKJi'-Kil, 11 Q. H. 317.
The iiirv having found a general venlict for the
fnlaintitf, tlMUu'li defendant was in fact entitled
1 the Viii't l"" '''^'^ cleared : — Held, not ground
JoraiHW tri:d, hut for an application to restrain
She iilaiutitf from taking jiossession of such part.
|f„;i.rv.-VW,V. 1-2Q. B. .37!t.
Thereeiivery on a judgment roll f(U' the whole
Icf a'"t, when in fact the plaintiff proved title to
l^lijfjjthulf only, is not such an irregularity as to
jjjj^ ,lL>lenilaiit'to move against the judgment.
Tieenurt nr a judge will in such a case restrain
laintitf J'rom tiking possession of more than he
liactreeiivered. Jnhiiitton \'. MrKiiinn, 3 1'.
■3.-1'. L. Uhanil).— A. Wilson.
; Tkiilaiutiff'in this cause having endorsed his
Tit iiir the recovery of the east half only, to
Ihichhe proved title, there was no ground for
eintertereiico of either ccmrt or judge. Jh.
here :i (lefemlant after judgment, hut bef(U'e
Intiii'uiissessiou executeil, aci]uires the title to
i jjiul, the court will stay the execution of
(sritiif iiossessiou. //(-//;( v. Croi.iDii, 17 C
iloO.
VI. Co.sTs.
1. On Jmhjmi-nt li'i Difault.
ill. hy the Queen's Bench, that a plaintiif in
Wnidit is not entitled to costs on a judgment
ytiiiwl hy default. White v. Cochllii, 2 P. I{.
- 1,1. li. The decisions on this point had been
jtSiotiiy : see /I'./oAv v. lutniUcott, 2 P. 11. 230.
iLihaml). -Richards; y/((// V. YiiUI, 2 P.
■Hi.-V. V. ; niu'drr v. Canijiliell, 4 L. .T.
6.-1'. L. Cliainl). -Draper.
IAii eiectineut suuiinons having been served on
L ml R., A. only defended, and B. allowed
Pi'iuiiit to go liy default. The plaintiff ob-
iiipl a vonlict auil issued a hab. fuc. poss. and
i.lHreust? against both, wliereuiion B. moved
Isetit asiile as against himself, or to have his
lae stniik init of the proceedings : -Held, as
|thcti. la. fur costs, that he was liable, for al-
mjh if sule ilufeuilaut lie would not have been,
Iwhtii there art two persons in possession, and
Vil'licir:, the JHilgnient is suspended till the
Ko! the issue ; if the latter succeed, it enures
Ihe Wndit of the other, and if he fail, both
I liaWe for the whole costs, (as in aeticuis for
i»k'esi uf which there can only be one taxa-
D'Arciiy. WItlte et al., 24 Q. B. 570.
^cSiVict. c, 14, 0.]
Seriir'if}! for Cll.^t.■<.
, In ejectment, security for costs caniKit be ob-
j tained before appearance is entered, as in other
actions ; ami the entering an appearance does not
put the cause at issue, so as to/iu-event the cle-
f'endant apiilying tVn' security for costs. ( 'rmri' I'l
III. V. Mrt/iiiri,S ]...]. 20.-.. ('. L. Cliamb.—
l)raper.
i The action was coninienci.'d 2(lth February,
' 18(il, and apiiearance entered 18tli .March, f<d-
lowing, defendant (ui IKtli of the same month,
ilem inded security tor costs, because plaintitt'
resided in Cireat Britain, but no proceedings were
aftcrw.irds taken, either bv [ilaintilF or defen-
dant, till 2Sth .lanuary, ISdl, when the plair^ifi'
give defendant a term's notice of his intention to
proceed by serving notice of trial : - Helil, that
ail ,ap])lieation by defendant for security after
service of the notice of tri.il was too late, /'"/o
V. r,,j,h.r, 3 P. 1!. .30!).— ('. L. Chamb.— J.
' Wilson.
The mere fact of a si'cond action of ejectment
being brought between the same parties, and for
' the same land, is no re:ison for ordering security
if the costs of the Hrst action have been jiaid,
! and the second action brought in gooil faith.
Anu.'itrimii v. Moiitnoniir//, .") P. It. 4()1. -C. L.
! Chamb. --Dalton, C. C. d' P.
j But the fact of the costs of the fcunuer unsuc-
! cessful actions having been paid, is not neces-
sarily a ground for refusing to make an order.
ChinnlHr-fV. L'lnrr, (i P. B. 101.— C. L. Chamb.
j —Dalton, C. C. ,i- /'.
I
]
' 3. Siiiii'iiiij PruciiirDi'j.* until C(t.st.-< <;/' I'ri riun.^
\ Aet'ion lire jxi'ul.
\ In a second ejectment for the same premises,
' between the same parties, proceedings will be
I stayeil fiw uonpavnient of the costs of the first.
' A(c d. //(/.s.>r// V. ■/^"', K. T. 3 Vict.
I The plaintiif jirotecded, notwithstanding the
I order to stay, and was nonsuited f(U' not confes-
sing lease, entry, and ouster. The allidavit on
I wliich defendant moved to set aside the proceed-
} ings was so worded as to be evidently made in
i the Krst cause, but the court overruled this ex-
I cepti<»ii anil set aside the proceedings. /)ou d.
' Lidr V. Darii, 3 O. S. 311.
i
I Where the lessor of the plaintiff had been
j attached and was on the limits for non-jiayment
' of the costs of the former ejectment for the same
I premises, a rule to stay in'ocecdings was refused.
I y)ti<- d. .Stornrt v. Noe, M. T. 1 Vict.
In ejectment by an heir, the court refused to
istiy proceedings until the costs of a former
' action, brought for the same premises by the
ancestor, had been paid, the ancestor having died
before aiiv legal determination of that suit, /^ic
; il. J/cA'r(// V. J,'n,. H). B. 400.- P. (.'.-,1 ones.
! Where a party fails in his rirst action and then
; brings a second, defendant cannot apply forpay-
1 ment of costs of the first till he has appeared.
I Doe d. Fliinih-r.-< et ill, v. Hoe, 3 (,). B. 127.— P.
(^'. — Hagerman.
■ Where the plaintiff bad abandoned the first
I action, and coniinenced a second for the same
I lanil, he Wiis ordered to stay proceedings in the
I second unless he paid the costs of the hrst. Ho
i J
1207
EJECTMENT.
miglit, it Hooius, uiidi'i'this, elect to ])r(icee(l with
the Hi'st, ill wliicli casu the order woulil liiive no
ett'eet as to the (uists. Dm' i\. MfLntil y. Jnlui-
.""//, 1 V. f.. ( 'iiiinih. VA'.i. — Hol)iii»oii.
Wliere in ejectment under tlie ohl imictice
tlie h'ssor of tlie iilaintilV never signed the con-
sent tendered hy defendant, conceiving tliat it
Wii.s defective, Imt alian(h)neil tliat action and
hrouglit a second : —Held, tliat the .second suit
niu.st he stayed until |iavnieiit of costs in the
first. Frn-hr v. M<r„/;,', 1 I'. |{, ITil. -('. L.
Chanil). — Hums; /Jnc d. Ain/ir-iini v. AmbrMU),
1 l,>. I!. -27.").
Where plaintirt' recovered ag.iiiist three ilefcn-
ilants, and afterwards, without diseoiitiiining
his action; eoinmeneed a second action against
two of the defemlants for the same ])reinises, an
order was made that unless the plaintiff elected '
to discontinue one or other of the two suit.-*, and
pay the costs of the suit discontinued, the
second action .should he .staj'ed. <!riiii<liaii'i- v.
White, 3 r. R. 320.— C. L. C'hamh. -Uraper.
riaiiititf claimed to recover in a second action
the same laud sued for in a former action, and
under a forfeiture in the same lease, but a dif- j
ferent forfeiture incurred long after the obtain- !
ing judgment in the prior action : — Held, that |
as the second action wa.s not brought for the
same cause as the first, it should not be stayed.
Bvll V. Cxff, 4 r. R. 155. -t'. L. Chamb.— A. |
Wilson. :
Qiuere, if it were shewn that the (piestion in
the second suit had been involved in and could
have been tried by the first, and that the second
suit was brought vexatiously. Ih. ]
Where a former action of ejectment involving !
the qiiestion at issue in this suit had been i
brought and decided on the merits, and no real ;
or probable cause of suit was sworn to in this ;
suit moved in, an order was granted to stay \
proceedings until the costs of the action of eject-
ment were paid. < t.ilninilcr \. Chlrnnilcr, 3 Chy. I
C'hainb. 50. — (.'. L. Chamb. — Taylor, Secretari/. >
Attachment on the demise of several W
was granted against one without proof i,f ik^j^^ll
or service upon the others, /hin], <'ii\,;ii,ini
Mchoil, I (,). B. 304.-P. ('.~^Iacanl;iv. '
When the term in a declaration in ojiYtiimit
has expired, the plaintiff is entitle'. 1 k, r,.^.„^.
nominal damages and his costs, altlioiixli lifc;,„. j
not recover possession. Diw i\. I,'i,-k\ ^[„
H. T. (i Vict.
1 ''VH'f/,
f^ffeet of disclaimer by defendant iiiuU.r s«
15 of 14 & 15 Vict. c. 114 I'laiiitilt's li^^lit ,„,
costs thereiijion. Howihii v. Mi-lntiire \y i>
no.— C. L. Chamb.— McLean. '
A defendant in an ejectment suit, cntitlnltol
relief in ciiuity, on tlie ground of niistnk,.. ,i(.
fended the action, in wiiiidi lie was inism'ctssful 1
instead of coming at once to this court I'lin-ilief'i
Subseiiueutly he fil(;d a bill and olitaimnl a ilccriiei
with costs : but the plaiiititl' at law was hdill
entitled to set off against such (.-osts his cn-t,
the ejectment suliseijueiit to tlie writ Ihnu^it
v. (lillen, 21 Chy. 15. ■ . ' i
Defendant
(1 and
appeared and clamicil title a.Mni-j
ant of one \\. Two ilays before a]iiii'anii.;f. l!
had disposed of his interest in tlic i;ui/|.< t.. >
who, after notice of trial, applied un atliiLniui
setting out the conveyance and tlw siilistniiciiJ
attornment to him of rlefeiidant (ikiw his \v^<w\
to be admitted as landlord to dcfeiid theactiim-I
l)nt the applicati(m, being o|i]i(]scd liy the iiLiin.!
tiff, was refused. I'laiiititl' havini; sik'«w1p1,|
applied for a rule ordering S. to pay the enstsuff
the action, on the ground that the lii'teiidaiini.t
insolvent, and the ccuiduct of S., li<ith in iiiakiiigi
the above application and at the trial ami siili.i
sequeutly thereto, jiroved him to lie tli.icjll
defendant: — Held, that plaintiff w,is mti
ped from making such an aiiplicatimi hy l,aviiig
<)ppos(!d the prior ajiplicatioii of .'^.. ami the nil3
was made absolute. Lnl-, v. Bimlli . ,"il'. 11 41S.|
— P. C. — Gwj'ime.
4. AttdcJnncut for X(in-)iaiiiiunl of CoM-i.
Where the lessors sued in a corporate name to
which they w'ere not entitled, and so entered
into the consent rule and were nonsuited : —
Held, that an attachr.ui.t ^....I<1 ..ot issue against
them for iiou-jiayment of costs demande.l of
them individually. A/c d. Millwditt Tnixtrc.s
v. ('((ririii, Vj. T. 3 Vict.
It is not necessary that a (i. fa. or ca. sa.
should issue against the nominal plaintitl' on a
judgment for defendant, before ;ui attachment
against the lessor of the jilaintitl'fornou-payment
of costs under the consent rule. Due d. Inipcij
V. drill), H. T. 4 Vict. — P. (_'. — Jones.
An attachment is not a writ of execution, and
a party taken under it is not entitled to be dis-
charged from custody as having been illegally
arrested for costs only, under 5 W^ill. IV. c. 3,
s. 2. Jii'i/iiia V. Killi/, tJ O. S. 152. See, also,
Wilmn V. DWiniihaiii, tJ O. S. 537.
An attachment might issue under a consent
rule, notwithstanding the act abolishing im-
prisonment for debt. Doe d. Dunmerx. Benton,
1 Q. B. 157.
VII. F.rECT OF .JfWi.MENr IN K.IKiTMKM.
Held, that a judgment in ejectiuont. ioeiiver«t
after twentj' years had expired, wonlil imt -ivJ
the statute ; aliter, if recovered within t«iiitB
years, and the occupant within the twenty vtiii
had been dispossessed upon such jiiilL;iiieiit. 1>4
j tl. Perri) v. Jfeudermii, 3 ^l R 4Sl).
I One F. rented the locus in (pio fruni the |iLiia|
i tiff previous to May, KS5I, when he went i
and defendant obtained ])osscssi(iii. The |)liiiiitij
i recovered in ejectment, in which tiie ileniisewai
! laid on the 14tli of .liine, 1851. and entered
judgment in .March, 1852 ; he then liimiL'lit tra
pass (J. e. f., alleging the tres|i;i,<s tn have
committed on the 5th of .Inly, 18."il. The trti
pass proveil was in May, 1851, while F. wa-
possessicui ; Imt Hehl, tliat the actio:, was mui
tainable, for the recovery in cjcctiiieiit entitle(
the plaintiff to treat the defeiulant as a trt
passer from the day of the demise. /W'tI
FoMer, 10 Q. B. G07.
At the trial of an ejectment, iimler 14 k 1
Viet. c. 114, recovery was proved in f.ivimr<
John Doe, on the demise of the now defemlanf
' \
: of HL'ViM'iil Ifsj/ir,
it 1)1-1 It .f (.f(ltinai„l
)(»m1. r,(l,;ii,ii,i y
-M.leaul;\y.
nitinii in cji'itinuit j
outitluil til rwiivi'i I
ts, MltliuiijiUlieoim. i
il. Lichv. AuMiinii,
.•I'l'inlaiit uuili'i- .,.,
I'liiintilt'V lii'lit u
:. M'-lnhirr. 1 i'. i;
nil.
nut suit, I'lititlnltnl
mini (if iiiistakij. At-
1r' was iiiHiK'oi'ssmlJ
this cMiMvt I'lii'vtliei.f
ml (ilitaiiii.'il a ilccreel
;itV at law was liflill
idi ccists Ills oistsofl
,() tliL' writ. Iliiiiiif.m
i.'laiiiicil title a.' tui-l
let'div aiiiiiMi'iiiii'. ll.|
si ill thf laiiilst.iS,
apiilii'il I'll alliilavii
■ anil till.' snlisL'i|iuiitl
iilaiit (iiiiw liis lesswll
to lU'l'i'iiil tlieaotiiiiiJ
iHijiosi;!! liy till' |iLuiiT
itV Uaviiij: >iRvwilfil,|
S. til iiay th'-- i-'"Stsi
;liiitthi.'iirU'iiilaiit«
E of S,, liutli ill iiiakiiigl
it tlio trial ami dy
1 liini to 111' tluTcjll
liiititl' was 111 lis!"]
Hiplicatiiiii I'V h:\vii
on of S.. ami thi' nilil
V. /,'.-.(.//.. .'i 1', l: 4K|
Ik.ni- in F-m-i tmknt.
I'JL'ctiiu'iit. iwivi'ri4
lliii'i'il. wiiiilil ii"t -wd
livercil within ivM^
Itliin tlK' twi'iityviii
sucli jiiil'^iiiK'nt. m
I.). 11. 4»'i.
lin i|Uo frma thf I'l.iw
II, wllfll \W Willi
Isessiiin. Tlu' iilaintil
Iwliicli tlii'iK'Hii*"*
Tl,S,")l, ami lutfix'il lii
1,0 tlR'iilii"";-'!!"!''^
Jtivsiiass til liavil'i^
lulv, 1!S"'I- ''■'"■"■'f
llS,-)l, whik' F. iva,<ll
■, the :n'tii>i' "•'* '»'"5
fin (.'jcotim'iit iiititM
1 (k'femlaiit an :i trt'
lio tU'iiiise. />'"■<
Iment, nniler 14 * I
oroved in fa^'"'"'
U the now tlefenuai^
1209
EJECTMENT.
1210
I against
in this case : — Hold, oloarly no
iiiiii.'i, fii'rtliat jiul^'iiifiit was lift wot' 1 1 dillurciit
thu (lid
' '• ' ' •■ this \ct has altiTud the cli'ei.'t of a re
aiiil under
I ivlietli*-''' ,
,„viTV ill I'jL'ftuioiit, !is I'egards estopi
' Ijnriis, .1., that, under the Xtli see., it
ir!r It /III' jillil'ill'.l i--< Jill' till- I'/il'llllinif-l,
liraetiee. (ilinere,
the eli'ee
Is estoiiiiel. Sell)-
I has nut.
Cl'ili'iiii'
Mi-Mi'Uai, 1 1 (,>. li. •-'.")().
the now plaintiff ; and it appeared that plaintiff's. lleplieation, that defendant ouylit
. iiestion there decided, l)einy one of houn- \ not to he allowed so to (dead, lieeanse liy writ
V' V was precisely the same as that again issued on the lltli of August, 18."iS, the pliin-
■ liiiiht iiji ill *'''** ^^>i'i '• — Held, dearly no till" sued defemlant in ejectment to recover pos-
'1" f , .. il .4 :.,.i.M.,...,f ,...,1. i.,.f......,i. .lid... f session of the same land, and after trial olitained
Jndgineiit therein : Held, on demurrer, replica-
tion had, as lieing pleaded to the \v hole plea,
and containing no answer to the defence ,is to
any time previous to the llthof Au>,'ust, 1S.")S.
(Irirn V. Kiiiii, 18 <^ 15. ()•_'(>.
The [ilaintill' lieiiig tenant in eonnnon with
defendant (her inotlier) and a sister, lived on the
[dace with tiicm until March, IS5!t wiieii she
left of her own accord. 'Die mother inviteil her
to return, which she refused to do, and in April,
ISf!0, she liidiight ejectment as tenant in com-
mon against liotli of her eotenints, in which
she olitained judgnient for iK'fault of jipliearance
in (ktiilier, Init nevtatoiik po.^session. In March,
IS(;t, she sued for inesKe prolits, and defemlant
pleaded not guilty : Held, that tlie judgnient
. „ (II suti,,,; „,..,. — ^^.^..w , „ ...^ in ejectment was not conclusive proof of ouster:
K ilieil intestate, and iiis heir gave to the said that tlie plaintilF had never in fact lieeli so kept
" ' ■'' ' out of possession as to make defendant liable
in trespass ; and that she coiihl therefore recover
onlv the costs of the ejeetmeut. Si'iii v. Sliiii,
•-'I (,). It. 4,-. 4.
CaH' fur lihel in pnlilishing a printed notice
1 niiii.' tlic iilaintiir's title to certain land, of
(It'll* ll'o "'^ I ,, 1 jl . 1 - 1
wlu'i'htlu'ilcclar.ition alleged that he was seised
ill iif. .iii'l ^vhicll he had advertised for sale, and
stitiiv'that iiiie C d. had the title, and that a
gli'it ■■v.is iii'iiiling ill Cliancery to estiililish her
liiilhtcd ri'^ht. 'File liftli plea alleged that the
Sdiilv title was liy virtue of an indenture
(I'Xeeut-'d to him liy one K., wiio was
{l,^„seisi'ilili fee: that the said indeiituiv was
iven t' I secure usurious interest ; that the said
ilieil intestate, and iiis heir gave to the said
J mil license to enter on and occupy the said
jiiiiil'
I plain till'*
Lif niortg:yo
linil (lurin,!; ht'i' li'^' ! and thereuiion the defeii-
IS her ai'eiit, pnlilisheil, itc. 'Flie plaintill'
' " .^
him
I dint.
j1, a verdict and iudi
I'.V
Miucii, !'•. way ol estoppel, a
fflfiitiiiiinii'-tion <>'' ejectmentliroiight
ifflinst till! (lefcndant and one H. V., to recover
i^jjsidii III' this land, in which it was found hy
the^ jury that the said indenture w.is not illegal
or
A jiidginent in ejectment ag.iinst the casual
ejector does not estop a defcnd.uit, in an action
for mesne prolits, from disputing the title of the
he
tbe)"P''''V iT Vi 'Vh . . oli .'iti W plaintiff from the time of the demise laid in the
nnwiriiius. .seiiilile, that tlie replication sliewed , 1 ,. <• . . i. j> , r\ i \ ,\ m i^-
cruiiiiiii" I _ 1 action of eiectment. I'liiiinii \. Diilii,\ Q. V>. \bi.
me-toiipe. Maii-y. '"','/, I- V'. n. /I. ■■ ." ^
FiM count, del.t on the statute for double -'^ judgment in e)eetment for p.art (ii tne
Inlne'ilainiiii" f40 ; sec.uul count, for use and l>i>'''"^'^« >» an estoppel against deteudant s denial
iMMtiiin eliinuing tl'O. I'leas : 1, that after "} tl"-' phvmtid s interest in such portion. Dw: v.
'IlLiui; (if 14 & ir) ^•ict., c. I U, the plaintiff I /'"".'/-^ !» ^i- B. ti7(..
mpbileil the defendant in an action of eject- ] Held, in ejectment, that a record in ejeetineut
jiient fur the same premises in the declaration , ;„ a, f„inier trial substantially between the same
liditi'iiiLil, i^L"., ill which action the jury were , parties, was properlv admitted as evidence, and
t„ni as well to try the issue joined as to assess , that all that could be inferred against tli.. jdaiii-
iilamages to which the plaintiff might be , tiff's right to recover at that time, and the defen-
ItntitW fur the u.se and oceupation (if said ; iijmt's right to possession, were proper inferences
frcmi the production of the record. Or-ii r v.
|Vr«o«, 14 C. P. 573.
Ijiniiibt^ and a verdict was rendered for the ;
[plaintiff, as and for damages for the use and j
iiMiiliatinii iif said premises, ic. ; "J, to the wlnde
IkLmtiiiii, a.s to t'JO, paieel, &c. , the same |
-Held, (111 (lemurrer, both pleas bad, as i
Iwiig 111 I answer to the lirst count, aii'l for not ,
ihiiviiiL.' that notice of claim to substantial dam- I
was given, or that judgnient had been ]
tatiTfil, iir that the recovery was for the same
Idjiiii ; and that the second plea was bad also,
Ibt nut shewing to what f'JO it was pkaded.
nx.hlhlij, V^(i, H. -2X1
(jiiitre, as to the effect of the issue in eject-
ment imw liting only as to the right of posses-
tun. UMiisiiii v. Siiiitli, 17 <,». B. --MS.
Vimii an action by N. against W. for mesne
Mts ;— Held, that judgment in ejectment re-
bvered hy N. against a third party, who was
toveil t<i have lieeii acknowledged by W. as liis
fcnaiit, was evidence against W. , he being looked
M as laiidl ird of the party against whom the
xtmi'iit wivslimught, with notice of the action,
jrkli he might have defended. .A'('((/c v. Win-
I Miratiiin, upon a writ issued on the 21st of
Veniber, 1858, for entering plaintiff's elose,
pd keeping him out of possession thereof for
. years. Plea, that the land was not the
Tresp;vss to plaintiff's land in the township of
Saltfleet, digging and making drains, iScc, con-
verting same into a niad or highway, and expel-
ling plaintiff' therefrom. Second plea land not
plaintiff's. Fourth plea as to the digging and
making drains for six years next before action
brought, and m lintaining the land during that
period as a highway, and keeping plaintiff' out of
exclusive possession that before and during the
period of six years before action brought, there
was a higliway over the wlnde of the said land,
upon which statute labour had before and since
been annually performed ; that during said six
years defendants, as such municipal corp ration,
had jurisdiction over said highway ; that the
.^ll'll oiiil fnihiilil of said land, being such high-
way, were during that period vested in the
crown, or in defendants, under the statute in
that behalf, and defendants were thereby bound
during said period to keep said highway in re-
pair. 'I'he plea went on to deny the reservation
of any rights in the soil hy any individual, or the
exclusive possession during said period by plain-
tiff, or any other person, but averred that the
same had been used as a highway, and that the
trespasses complained of were eominitted for
the purpose of repairing the said highway.
• !
■!
,i it
1
I
I
■•
pfi
1211
EJECTMENT.
1212
Tic'iiliciitidiis, to so imicli of the |ik'as as related
to that portion of the tresjiasMcs eomniitteil since
the coinnieiuetneiit of an action of ejectment,
brought l>y |ihiiutitl' against dcfenchuits fur tlif
sniiic land, tliat defendants were estojiiied l>y
the recovery of judgment )>y defaidt m that
action and ]i(iss(ssion taken thereunder, from
jilcadiiig said jileas : Held, on dcunirrer, rejdi-
eatioiis good, tlie exceptions thereto licing sus-
tained neither in fact nor law ; in fact, liieause
plaintili did not liring ejectment for a Idiilnraif ;
and in law, liccinse, suing as plnintitl diil sue,
he rightly l)rought his action for so nuu'h land,
though there w.is a right of way ovei' it for the
puMic, in accordance witii the law as laid down
in (loodtitle r. Alker, 1 liurr, l:« : Hehl, als<i.
that the writ in ejectment not having ilcscrihed
the ]iroiieity siU'd for as a /lif/liiriiii, the recovery
in that action ^^■ould not have estopped tlu^ de-
fendants from setting U|), undei' a juvipei' plea,
tlitit the land w,!s a highway, and that they en-
tered upon'it for the ]iur]iosc of rc)iair ; for that
the rccovei'v "as not alisohitely irreconcilahle
with tlu; fact of the luid having lieeii all along
a highway, the plaintilV, auci not the defendants,
heing the owner of the soil, the |)ulilic ha\ ing
the right of way over it, and therefore the right
to enter and make repairs ; l>ut that defendants
Could nut, after the rcciiVcry in ejectment, set
u]) the pleas they had pleaded ; the second, deny-
ing that the land was ]ilaiiititl"s [)roperty, and
the fourth nut licing conlinctl toa mere assi^rtion
that the land was a highway, hut distinctly
Jllleging the soil and freehold of the land to he
in the crowii, or in defendants ; besides other
averments ijuite opposed to plaintiff's having
any right in the jn'mierty, and therefore to his
right to recover in ejectment, as he had recovered.
(^'(1 riciilli-ii V. 'J'/ii' ('(ir/jiirn/id/i uf th'- ^liiiiii'l/inUli/
o/SdItr/rrt, 17 ('. P. -M!t.
Plaintiflf elaimed under a deed from E. , M., ami
T. Defendants shewed no title. It appeared
th.at K., on the "Jlith ,lune, lS.")(i, recovered
judgment in ejectment for the land, against
defendant, in an action connneueed on the 3rd
September, IS.")."), and the hab. fac. was leturned
executed on the "Jlst ,luly, 18.")(!, ]ios.session
having been delivered to tlie plaintiff's agent,
who held it for two or three years. It also ap-
peared that on the ITtli of March, IS.')8, the de-
fendant brought ejectment against K. ami the
other two plaintiffs herein, and was nonsuited.
How he afterwards obtained po.ssessitui did not
appear : Held that the defendant could not
dispute the plaintiff's' title further back than the
3rd Septendier, IS.")"), the judgment in ejectment
being evidence of their title at that time as
against this defendant, who shewed no title in
himself. Tliiiiiiii.-'tiii if ol. v. Ihill it nl., '\\ t}.
B. ,%:.
In trespass for mesne prolits, &e., defendants
justified under a demise from a tenant in com-
mon for one year froin May, 1871. The plaintiff'
replied estoi>pel by a judgment in ejectment,
recovered in 1870, against a tenant of defendants
then in possession, of which suit defendants had
notice. Oil demurrer to the replication, on the
urouiid of want of privity between the tenant
in common and the defendant in ejectment, and
because it did not appear that the title under
which the plaintiff recovered in ejectment con-
tinued up to the demise to defeiidant : — Held,
that the replicatiou was ^ood, the presumption
being that the title contimied luitil the m
trary was shewn. Ilirr \. \Vi slim i<i nl ■iin
j H. 402.
The plaintiff' on the 4th .April. ISiU, ,|,,,„
gaged lanil to I,., who covenanted thciil,v |,,
i|uiet enjoyment by the idaintiir nntil d.faiilt
'I II an action against L. 's adniinistratur
I'll tilt
covenant, alleging an eviction by I'l rsi.ns thim.
ing iindcr b., d(/fendant picided tiiat I., i,,,,^
veyed the land to the )ilaiMtilf, im t|,^. ;;;,.
March, 18(>l, which w,-is tin; pl.iinfi'i's milvtitli.
to the land : th.it the niortgjigc sued on ^J-n .,
si/eure the jiui'diase nioni'V, and Has fXotiitiil
immediately after the deed, and as a iMit i,i i
the s.-ime transaction : that the |ilaiiitilf l,v
the mortgage covenanted tli:;t he m as s,iH-,l i',, i
fee. and h;id go(id right to convey, and lliat tW '
eviction eoniidaiiied of \v:is an aitimi i,|' t.;,.,.).
nieiit brought by the heirs of b, uu the I'Viiiiinl |
that b. was of unsound niiml when lu' exicutol
the deed on the ,'il.-.t .March, iMI-t, Mhidi naJ
pnived at the trial, and tlie jury tlieiviiin,iit'„iii'i,l
for the heirs : Held, that the plea was
for tile avoidance of the deed for iiisanitvilidiiit]
necessarily involve the avoidance ot tia' iiimi;.
gage ; nor did the estoppel, ai)|ilifaKle to tlic
deed, extend to thi' mortgage : that ilekiniiiiitl
should have ]ileaded b.'s in.s.-inity <liintiy t"tlicl
.mortgage if he wished to test its validitv ; ,i!i,l
I nioreovci- the parties here were not tlie .siuk' njl
in the ejectment s\iit, nor was it certain hninj
the record in ejectment that the recovery tliiivm I
1 was on the ground allcgc<l. ICrrhx v. fnirni 'V'l
(^ H. (iX"). ■'
1 A judgment in I'jei'tnieiit is e\ iilmce »i t!ic|
title of the party in whose favmir it wa.-; ^ivm;!
but whether it is conclusive, ami may lie [ikulti
by way of estdjipel, has not been detenniiiiil.
, Wiijlitniiui V. Fiilils, lilChy. ."CiO.
i Wliere a vendor brought ejectment .iiiiltiiiiinlj
the heirs of the purchaser out of piissessi.iii. iie|
' was held to have disabled himself fi'mn emiiin',
I to the Court for specific jierfoniiance, aiiiK"iiHJ
only do so in order to bind their interest in.-r, lij
: a manner as to render the pniperty saLil'lt.
t/iiii-ii v. Vii-iliimi, "JO Chy. ")IS.
VIIT. Mksm; riioiiTs.
1. /'/■'lur,,,,/.
A declaration in tresjiass for mesne |ii'iiiitj|
must state that the land was tlic jilaintili s; sikiil
omission is not cured by stating tlicir cximlsiiiii.]
(Innit v. Fiiiiiilii',1, Tay. 470.
In trespass for mesne prolits aijaiiist tlieivi:-!
cutrix of a sheriff, a plea justifying tin- tiitraiRai
<m and seizure of the property umleran attadn
ment directed to the testator under the Alison-I
ding Debtors' Act against the estate, ival aiid
personal, of a stranger, was In Id had nn si'wial
demurrer, as amounting to the geneial isjiie.j
li'niti V. J/iniitl/oii, t) (). S. 7!l.
In an actiim for mesne prolits: lield, tliaa
if the declaration or replieatinii is (ilijeetimij
able from vagueness, defendant .slmuld deiiia
for want of a sufficient dcscriiitinn, or a m»
assignment, ami not raise an issue to the country
on the fact of itleiitity of the premises ineatiinier
ill the declaration ami those iiieiitinned in till
pleas. MtKfuzk v. Fairwun, 1 1'. !'• 50.
121i
u;il until the o.ii.
'ikIiiii (7 ii/., \\l (J
\lil'il. I S(14, iiihit
liilitfil tlRMvl.yii.r
ititV until liif'iiiilt.
liiiistratc.r i.i; tli,.
liy I'l rsiiiis uliiiiii.
iiliil that I., uiii.
iitill'. (Ill thf HUt
iliiillti'l's ■ililytitj.'
.'I' Mini mi wii, tn
iiud was fxwutul
anil lis a yxrx „(
t till' plailitill' l,y
;t lie was sfisul in i
nivcy. anil tliut tl,( !
an m tiiiii i.l I'jwt-
f I,, nil tlie gl'iillli.l •
1 wlicii lit i-xiaiti'.l
li, lMi4, wliiili \v;w
ii'y tlii'riiiiii.iit'iiim,!
till- Ilka was 1
fur iiis.iiiityiliiliiiitl
ilaiice (it till' iiii.n.
, aiijilicalilu tn the
I,'!' ; tliiit ili'tVliiiaiitl
aiiity ilinctly tntlioj
st its valiility ; .iiiilj
L'l'c not tin; sank' as!
was it I'l'itain Irniaj
tlie ruuiivtry tliiruiiil
AV(7., V. Lmnij. ',1li
t is fviilfik'u lit tiiej
'uviiiir it was j;ivtii;l
, ami niay In.' IiKmiIc'I I
it lii'rii lUtciinliiol. I
\. Tm!).
(.•ctinciit aiiiltiiimill
lit' jiiisst'ssiiin. liel
iiself from ciiiiiiiijj
iirniaiK'i.', ami uoiilil|
i.ii' intiTLst ill siuh
limiiurtv saliilJi'. I
IS.
'niit-irs.
till- iiH'siif [iriiiitsl
lilaintiirsi.-inlij
iiig tlii/ii- t\iiiil>i"ii.f
1:!13
ELECTION.
1214
Us auaiiist till' t'M-i
.il'yiiiu till.' I'litraiK-al
■tv'nniU'i'aii attarli-j
iiiiikT till' AliM' 11-
.K L'stati', iviil iii.ill
hi'lil liail nil si^iij
thu geiK'ial is»i;«--
I.
rolits : lu'M, tH
■atiiin is nlijet'tiniij
lant sliiiiilil lUiiitit]
(.•riiitiiiii, 111- a iii'«
lissuf totlieccuiutr]^
liircinises mentiime*
nifiitioiieil in *'"!
I 1 C. 1'. 50.
2. Ei'i'h'nre. ]
Where after a recovery in ejectment nii action '
H liiiiiiL'ht fi>r the mesne jirotits, iiiiil eviilence of
titli' i« uiveii. it in not iiceeH.sary to mIiow the '
iiil'iiH''it in fjectnient. Strjihiiiidii v. MclUmili.i,
'm.T. 4Vict. _ _ j
\.stiitla' t'tleetiif the jiidginent in ejeetnient
asi'viileliof, .see Vli. p. iL'OS.
'.\. DttllllKJi-t.
\^^lK<w:'> fill' iiiL'siie jimtits (lefenilaiit may
ipHiii iiiitiL;atiiiii of ilamani.'.s the valiU'iif Imilil-
inusertJLteil I'll the invmiriu'S l.y him. /.;iii/.-:ii,/
v.'jA'Fd !•/;»!/, I'ra. (i.
liiaii actiiiii fill' nu'siie iirolit?!, after jiiilnnR'iit
liv ili.'iaiilt ill ejrctiiieiit, it is not iieecs.siiry that
: iu,.|i,stsiif till' ejeetnient sliiiuld 1h; taxed liefoie
I thevcim he ireiiveivd. liaid- uf ('. ('. v. Ann-
um,,,, H. T. (i Viet.
In an actinn fur mesne prolits the jury gave
I »venlift fur miniiiial damages, l-lvidenee was
jivfU that the ilufeinlant had made Hulistaiitial
Linivemeiits on the lot from wliieh he had
{ ||j{„ ejected, and fvidenee of the eo.st.s of the
fjei'iiiieiit suits: -Hehl. that the damages were
\ in the iliscretion of the jury, and that the
iniai'C'S ami eusts of the ejeetmeiit might he
I coiwiilereil as |iaid for by the improvements, and
i J new trial was refused. PnlhrMin v. I'ctinlnii,
jIQ.B. 3l'ti.
i Where a mortgagee brought ejectment after
lorecliiiiure. and defendants appeared to be mere
I, tresiwssei's having no privity with tlie mortga-
I pr. the iilaintill' was held clearly entitled to
|Be<iie iiriitits from the date of the foreclosure.
I J(W V, (■(('.'/ Wk/., 11 t^ B. 308.
, Tlie iihiiiitiH') having recovered in ejectment
jjpiiist line W. for lands occupied by W. as i
i tenant tn ilefeiidant, lironght an action against !
Iteiihuit f(ir mesne profits, and succeeded, the |
I cistjiif the ejectment being allowed aa part of j
I tie ibniagcs. These costs were subsequently j
lieJuceilnn revision in Toronto by tl'JO 15h. 2d. : :
iHtU, that the amount taxed was the amount j
[iteiti'swere eiititleil to, and the verdict was |
liduceiiacoiiriliiigly. Xral'' tt lu: v. Wiiifcr, 10 |
A landlord procpcding against an overlmlding
tenant under 4 Will. IV. e. I, a. ."iH, cannot, under
14 it I") \'ict. c. 114, s. 12, rci'over mesne piotits,
the latter ;iet applying only to actions <.f ejeet-
nient. Jlldii V. A'o;/. )■>', i;i<,t. I!. Kill.
I.\. .MisiKi.i.AM^ors ('asI'.s.
A lessor ill ejectment will imt be allo'iveil to
release the action, lio, d. Jim/i r d iit. v. t'/itnn,
3<). S. 14(1.
The conrt w ill not eoni]iel a vendee of land,
who has leeoveled fmni the veinloi'the purchase
money and interest for defect of title, to stay
proeeediligs on his judgment until he gives up
pos.session. The vendor must |iroeeed by eject-
ment ; and (^)uiere, as to his right to recover.
JIf Kill null V. Uiirriiii:^, 4 O. S. 71.
.S(i Vict. c. 22, as to inqiroveiiieiits on land in
mistake before notice, and the lien therefor dis-
cussed. Viin-ii-k V. Siii'illi, :\\ ii. W. .SS'.t.
Ill an action for trespass to land, the ]ilaiiitill'
proved a goml Jiajier title derived tlirougli a sale
for taxes, but he had never lucii in actual [los-
session, and it was shewn that after the plaintiff
obtained his deed the defeiidaiit had cut timlier
on the land and built a .shanty for the luiulier-
meii, although the iilaiutill' went there and I'or-
bad him ; and it appeared that tlu; plaiiilitl' had
brought ejectment against him, but had not pro-
ceeded with it after defendant apiieared. The
defendant claimed under a deed I'roiii the heirs
of the patentee, and it was sworn that before
defendant puixh.ised the plaintill' also ^^•ished to
buy from tlieni. saying that he thoiiglit liis own
title not good : Meld, that the plaiiitill' was snf-
tieiently in possession to maintain tiesjiass, and
that he was not estoiP[)eil by having brought
ejectment, as being an admission of defendant's
possession. Ih-ck v. Kii'ijip, 20 (,>. H. 'M>0.
4. Oilier Ciisi'.t.
An actidii for mesne profits may Ijc maintained
lljainst an executrix under 7 ^Vill. IV. e. .3 ; and I
Ifkrethe aetiiin is bmndcd on the judgment i
Itjaiuit the casual ejector in ejectment, it is no I
Ipouiid iif ilefenee that although the writ of I
Ipossessiiin is tested in the tenant's lifetime, it •
iTi! issiieil ami executed after his death without
I»ici. fa. G'/w/i V. Hnmilluu, E. T. 3 Viet. i
k plaintiff in ejectment claiming substantial j
-taiages nnder 14 & 15 Viet. e. 114, must give
lictice lui the act directs, and proceed for such
Itoiages at the trial of the ejectment, otherwise
Ike wived his claim, and could maintain no .action
liiterwanls. Vartk v. JarvU, 10 Q. B. 4()G.
Semhle, per Burns, J., that a plaintiff in eject-
pt, miller 14 & 15 Vict. o. 114, not having
iweeded for substantial damages, is precluded
»m recovering them in a siibsequent action.
lilaiwrv.inini/, 13Q.B.233.
KLKI'TION.
I. I'ltoci'.KDiNd i.N Law ok I'](,>riiv — V«c
Ph.^ctu'K in Kyrrrv.
II. Widow's EtiifTiox— .Vk- Duwi-.n AVii.i..
III. Of Memdkks ok Paim.iamknt — Si-.- I'ak-
I.IAMKNT.
IV. Ok MKJIIiF.lIS ()!' MiNKll'AI. Col'NCII.S —
Scv .MlNICII'AI. CoUPoHATIilNS.
V. Of Sriiooi, Tn isrKi'.s --.sVc Piiu.ic
.Schools.
VI. Cki.MINAL OfFKNCKS CONNF.eTKl) VVITU —
Si'i- (hiuiiNAi. Law.
VII. (.'i.osiNo Tav-.iins on Days of — .SVe
TavKKNS .\.Mi SlIOF.s.
Vllf. Undku Wills -.SVc Will.
A condition endorsed on an insurance policy
provided that if for anj' cause the company
should so elect, it should be optional with them
to terminate the insurance tijion notice given to
the insured or his representatives of their inten-
tion so to do, in which case the company should
refund a ratable proportion of the premium : —
1215
ENROLLING DECREE.
12M
'G'i
HuM, not c.Hseiitiiil that tlm iiotioo bhould jiru- i were not entitled to rescind on forfiitnv f
cede the termination of the insurance, Imt tlmt | moneys piiid, Imt that the option was wjti i'
tiieyniiyhtlieco-tenijHiraneoiiH, and that tlieeom- I idaintifl' ; '-'. That tliere was evidruVf t,, ', '
jiany eould terminate tlie risk by L'ivinj,' notice the jury that the plaintirt' liacl eUrtuil t. t*'''"
tliat they iliil so, and refunding the nnearned
premium. Hild, also, that in this case, on tliu
facts set out in thi^ rc|)ort, then; was evidence
for the jury to sliew a termination of t)ie risk
nnder the condition. Cidii v. 'J'/n- /.(iiinn/iifr
/«.M. Co., i>7 i). I!. 4.-);!.
It was ]iro\ idcd liy an insurance jiolicy, tliat
wliencNcr (kfendants shonhl pay any loss to the
insured, lie ai^rced to assign over all his right to
recover satisfaction therefor from any other per-
son, town, or other cor[)oration, or to prosecute
theri'for at the charge and for the account of
defendants if rctpiested. Scmlile, )icr Wilson,
J., that defendants had not the right nnder such
agreement to elect wlietlier tile plaintlll sho\dd
assign <ir pro.-ccute. Itiisur v. /'inriin'ln/ /».<.
Co.] :j:j (,». i!. .'{."i;.
Held, unde'- tile facts stated in the report of
this ease, Wilson. .1., diss., that the defendant,
althongh the attaching creditor in insolvency,
was not put to his election, hut might proceed in
insolvency as well as upon his ti. fa. T/iorm v.
Tufr<t>ir(; 1() (', ]'. 44") ; attirmed in ajipeal, 18
C. P. ■2[), JIagartv, (!. .1., Wilson, J., and .Mowat,
V. C.,diss.
T'laintiir, on the 20th January, ISdIi, agreed
under seal with defendants to sell to them cer-
tain land for ^oOOO ; .S'ioOO to be jiaid on 1st
April, 18()(i, and S'ioOO on the 1st May, 18(>(),
with interest, and to convey on these pay-
ments being made. Defemlants covenanteil to
pay, and that if they made default, "the agree-
ment should be void and of no effect, and all
moneys ])ai<l thereunder up to the time of such
default sliould be forfeited to the plaintiff," and
that time should be of the essence of the c(m-
tract. To an action on this covenant, alleging
non-payment by defendants, and their neglect
to complete the j)urchase, defendants pleaded on
etpiitable grounds, that defendants went into
possession and paid SlOOO, but having made de-
fault in a further payment, the plaintiff evicted
and kept them out of possession, ami elected to
treat the agreement as forfeited, whereby the
covenant became void. At the trial it appeared
that the whole purchase money wa^ !5(iOOO, of
which slOOK was paid down, aiul .^lOOO more on
the Ttli April, KSHO, when, by an end(n-sement
under sea! on the agreement, the plaintiff ex-
tended the time for jiaymeut of the balance to
20th -May, 18()i>. l>efendants had taken posses-
sion under a previous lease in !May, 18()."), and
expended about .'S4000 boring for oil, and had a
steam engine on the premiocs. They were not
interfered with until about the 25tli of May,
when they were about to move this engine,
which the plaintiff refused to aUow, saying that
they bad forfeited the land, havnig failed to
make their payments, and that the ju-operty was
his, and they were trespassers. He brought
several men with him who threatened defen-
dants with violence if they attempted to cross
the fence into the premises, and he nailed up the
engine house, refusing to let defendants enter it.
The plaintiff gave evidence tending to shew that
his object in this was to obtain payment. The
jury having found for defeitdants upon the plea :
— Held, 1. That under the agreement defendants
the agreement as'alleged ; ami tliu vcn'l'iJ'""'
upiield. Jhtrcm v. Smith vt a/., \- r.
tn;.
W;i)
HLKKMOSYNAHY INSTITCTIoxs
Si'i- L'n.\uiT\.
i:[d':(;iT.
anient is not a lici
A judgment IS not a licii u(iiiii |aii,i., f,,,. ,.
purpose of an elegit, so as to avoid t' '
a li. fa. against lands, issued on a
judgment, but jdaceil in the siiciill
to tiie elegit. Dur d. /A/^rA /•.-,,,/, v
' S. 514.
Quiere, can
this province.
If t-tl'fct .
MlliS(.,|i|,.i|- j
an elegit
II,.
I>e is.-iUcil I'c
yiilaiiv
EMBEZZLKMKNT.
.Vt" Ckiminai. Law.
KMBLKMMXTS.
S^K Chops — Lanulohu ami
KNANr.
E.MlUtACKUV.
S<-l' (.'llAAlrEKi'V AND M Al NTKN ANlK.
ENDORSEMEXT,
I. Ok Bills or Notes— .sVr Mii.i.s hf Kx-
l'IIAN(iE AND PkoMISSOIIV X{iiKS.
II. Of Bills uf Ladino -.SVr- Hu.i.s ok Lad-|
I.V(i AND WaKKIIOISK llnKIITS.
ill. Ok Papers -,SVp PKAcrui- is Hyiiiv.
IV. Of Writs.
1. IVrilS (If' SiniDIIUIIii'-Sri' I'llAilllK All
Law.
2. l|V(7.s of E.ri'niliiiH-Sif KxKcriKiy.
ENLISTMENT.
•SVe Criminal Law.
ENQUIRY, WRIT UR
Sk' Trial.
ENROLLING DECREE.
See Practice in Eqiitv
121'
issufil rui'ularlv ;i
ACl'HK IN K'lifV.
ERROR AND APPEAL.
1218
KNKt»LI,Mi;XT.
.SV( HK.dlSTKV La\V.>
I. KliUDK.
KNTAII.
,S((- r.srAi'K,
KNTItlKS.
■(. KviriKNcK.
The court refused to sot iisiduiiixm inotioii, a
I fi. »a. issiiod u|ioii 11 jiid),'iiiL'iit moru tli;iii a yoar
I olil \vitlio\it a sui. fa. to revive it. Tlie ea. na.
I'loarl
V irroi,'ulir, vi'
L't not void, Imt voidalile,
lulil sei'in to he a writ
ami tlie pro[)er reineily woi
ot\error. MrXnlIri/ v. Slrii/nni, 'I'ay. -(!.'<.
^Vileru either ]iarty ean apjieal fioiii !i Distriot
t'ourt, under S Viet. e. 1,S, s. .", the .^([lelhiiit
mnst take that eoiir.se, and not hv writ ol error.
7'A.
v. Ililiiin; 4 q. H. r)-J7.
Ti
R> jiroper \m
diny to rever.Tiu a jiid''nioiit
.)f tile ( 'ourt of (,liiarter Sessions on an indiet-
I nieiit, is l)y writ of error, not i>y certiorari ami
I lial
)ea3 uorpus.
//.;/;
rll, •»! (X 15. •_'!,■
IX^riTAr.LK ASSK iX.\rF.NT.><.
,Vif t'liosK IN Action'.
'i'ln; idaintitl's deninrreil t(
I'l
ilead(
Fit^U'lTAHLH i':xi-:(
xKcrriox.
IKjriTABLK M()UT(iA(iK.
S(( MoKT(JA(ii:.
|.(,>UITABLK PLKAS.
See I'l.KAUlNi; at I-a\V.
KRllOU AND APPEAL.
Erh'ik, 1-lS.
Al'I'KAI. Fl'-OM SlTKKIOl! (Joll
T.s.
1-2-20.
and to.ik i.■<.^lle on another; ami the deuuirrer,
on arnunient. iiaxiny lieen oviM'nilcd, the plaiii-
titt's entered jmlj^ment .•ij,M,inst theileninrrer, .and
before tile i.ssue in fact was tried lirought error :
[—Held, that until the issue in faet was disposed
; of. error couhl not lie sust lined. Dhk-tnn v.
; Wxnl, -1 K. i: A. •iT.I.
! Krror will only lie iijioii ;, tiral judgment.
Therefore where the entry o:i th- roll was, that
the [ilea was held had, and th j declaration good,
Mid that tiie iilaintill' ought to recover his dam-
ages, it e., Imt heeause it was uulviiown, itc.,
jildgnient was stayed till damages ascertained,
&c. ;— HeM, that error would not lie on this
I record. (Irnml Trunk li. Cn. v. .,-( //K-y, •_'() C P. 6.
I Au apidication made in the County Court
i after the removal of the cause to the ( . P., to
; set aside the linal judgment entered, because the
I claim was unliiiuidated, had lieeii refused, he-
' cause, having complied with the certiorari, the
judge had no longer jurisdiction in the cause : —
Held, that the subject matter of the suit being
within the jurisdiction of the judge below, his
' judgment couhl not be reviewed on the proceed-
i ing before this court ; but, semble, that if it
' appeared cm tlie face of the record that the judg-
ment was final when it ought to have been inter-
locutory, a writ of error would lie. Seinble, that
, any iiroceedings in the court below after removal
j of t'.ie causL! into this court, could not be sus-
tained : — Held, also, that after the return of the
record, Ac, under the procedendo, to the court
: below, the judge there had jiower to set aside
the judtjmeiit anil let defendant in, upon terms,
to plead. Jiariti.i,t al. v. Co.c, 16 C. P. 'iSt).
T'he plaintift" having coinmenced an action m
the County Court, at the trial a bill of excep-
tions was tendered, and it was then agreed that
the pleadings and evidence should be stated as a
special ease for the (^jueen's Hencli, on which the
Pkaitice court might order a verdict for plaiiititl' or de-
fendants, or, at the election of the plaintiff, a
nonsuit or new tri.il, the court to draw infer-
ences as a jury. This was argued as a special
case in the Queen's Bench, and judgment given
for the plaintift', whereupon the defendants
brought error. In the copy of the judgmeut
roll transmitted, immediately after the plead-
Sce Certiorari, ings and venire, the evidence was set out, and
9. Smml Aiiplicalioii—See Practu'E at i tjie" a statement of the contention on either
\^^\); side, and a formal entry of judgment for the
IIV. In Crimina'i. CxHEs-See Criminal Law. fti''^'^' '^''^ ^i","''* ^ ^^Tf '"^'T] ^T't^'^'i
1 i tain the case, holding that it it was to be looked
V, MisiELLANEois Case.s RELATING TO Ap- upoii OS ail informal api)eal from the County
VKxi—Ste Api'EAL. Court to the Queen's Bench, it was not a special
77
W'hni Aipinl irtll ni\ l'-M9.
Aidre lu AiiiKdl unil Xotk-c,
SI(Vi(iiij I'riictiiliiiij-i, l'22l.
( ■„./., \-2-2X
,'i. Iliiiiil mill AUotnnicc \'2'2X
ti. (;//„.,■ f ',/.<,.<, I2"2r).
oniKi; AriT.Ai.s.
1. Frniii A'<fi-H'<iii III
AND TaXE.S.
2. Ill liivilMini—Si'i' BaNKRI
Insoi.vkxcy.
Ffiiiii Cmiiitii C'liiir/ — • .SV<'
Cinin's.
t'rnii Priifl'iri' Cuiui — .V"'
I'ofKT.
fiviii Miiijistrnti'ii — S'^i' .Se.s.sion.s.
From Mil •l^'/• — Si'e PRACTICE
KyriTY.
Friinidrilirs—See PRACTICE IN EQUITY
— I'HACTICE AT IjAW.
Ruiiunil III' (.'(((w-s
-Sre AssE.SSMENT
I'TCV AND
3.
6.
County
IN
:!
\'-
i n:
121!)
ERROR AND ARPEAL.
liii)
C1180 witliiii HL'i's. I")0 or !.">" <>f tlioC. I,. V. Act,
Ulidii wliii'li error coulil lie liroit^lit : that if it
WiVM to 111! ti'ciiteil as a iMiise in tlid (^UL'en'H
objecting that tho cane wan not appiali
however, that in tlii.s cnnv the cinivt
lie taiieli t<i have deciih'il as iiiiiin ;i
"■'"Wniii.tl
lieneli, tiien the a;,'reenieiit of tlie parties to tlie enter a nonmiit, ami tiiat tlie ri^jht nf iiinifiii, I
Nlieei.il case, and a jiiilge's older allowinj,' it, <'iear. limillni, it nl, v. SmUli, Is (^) |t j-, ]
Hlioidd have ainieared on the idll, the t'aets and appeal. ' ""
not the evideni'e <iniy shouhl ii;ne l)een stated,
and the
An ajipeal uiil lie t'loni an iiitirpli
WUhiiii v. Ki r,\ IH (.>. 11. 470.
:l.irr i,.
aureenient ot the p.utii's slioidd have
lieen .disnliite, not yivinj; the iilaintitt an option
to t.\ke a nonsuit or new tri.il instead of lieiiit' ^, - • , •,, . i- ..
liouM.l hv the ind;in>ent. Huh,,,.. V. Th. >;,;n„l *^'f ■■'" "I'lV' ".'" ";' 1"'^ n;.na,le. ,,„ „„ ,
..-..'' ^ . iiiilt' 11111.11 rill. 1 1 i.^i.i'iirti III i.t fli.i *, 1 I f
.Appeal dismissed at the heariiiudn tin. ,_.|.„|,,.|
IVi|llllvlj
only njion the diseretion of tile coint lulnw
not upon matters of law. ('',,ii/ .l/.i,-, v )/'("
1,") <,». 1!. (101, (;l(», note. "'
I'llder ('. .S. r. ('. e. l:t, s. l.'!',. tliciv ., „,
a)i]ieal to tile Court of I'lrror and .\]ihc;i|, «),,.!!
a new trial is jjranted in the eonit lniiV i,,,
m-itter of diseretion only ; and aii ■iii|ic>ii!iim]J
ease w.is, under see. 10, i|U;is!kiI witji ^„.,\
Ihilly. Il,iiiiill„ii, •_'4('. I'. ;<(»•-'.
On a reference at Nisi I'riiis tie' iiiil,.]' i,,
till,' arliitrator, at the rei|iiest of eitlnr tiiirtv \A
state any special facts for the eoiut, uliiflMiaj
tliil
aruh' eallin^/u|imi th'ei.i.dnti'lv'tVi'assign ernirs: ''■ivinu stated a ease, the cmut nn.lu i, ml
— Held, not his ])roper eour.se; Imt that lie thereon : Hehl, that no .appeal «.,uM li,., aw
sliould have sued out ;i scire facias (piiire execn-
tioneni non :- Jleld, also, that this writ eouhl j;';''"' !'"V.1'T.!"?"*("Y,n"'
not lie said to have Ueeii sued out merely for de- --'' ! '"^- ' • •> •''• * -A^' '-0.
lay, in wliii h ease the court \m11 ii<it stay e.xeeu- The rii;ht of ajijieal from ( 'liaiiccry is ,
tioii, for there wax fair ^'roitnd for eoiitending to orders or deerei's madcMii a cause pin
that the jilaiiitiH' was entitled to I )i vision Court tween parties. An appeal from aiioiilcr
c<iat.s, iiiid that tlie defendant should have de-
ducteil his own costs in such court from his own
County Court costs. l'"i,c v. IMIhi, •_'!» (). 15. 47S.
Tri,i,k' Util/,,;,,/ i ■„., •.'!! (,>. IS. ■.'1»4.
The jiroei'edinus lu're with riLtard to writs of
error to County ('ourts must lie ),'o\eriied liy the
old |iraetiee in i'lnjiland. The plaintitV, in the
County Court, recovered .S.'i on a ileelaration
containiiiii counts on tin; warranty of a liorsi',
for deceit, and tin' conimou coupts. No cei'tili-
cate was j,'ranted, and jud^ruieiit was entered foi'
defendant for Ids costs of defence as lietwi'en
attorney and client, less the ><."i damages. 'I'lie
jilaintill' removed the judgment hy writ of error,
contending that under the stai ''■ of Ontario,
31 Viet. e. -.'4, s. •_', suli-s. 4, he «as entitled to thereupon empowered to alter or aimiH
Division Court costs. The defendant olit.ained yenliet .-.s it might tlimk projier. Tla.„il,itr
not
.1/;//..
II I iiteivil. wnA
"tal
The ;W Vict. c. 7, s. \-2, <»., provides that
"the law and practice as to writs of error, and
the proceedings thereon, sh.ill hereafter he the ' (juash the proceedings,
same as the law ami practice now in force in ]
the taxation of a solicitor'.s liill a^'aiiist
in a particular mode, was tlieiefuiv ili.-mj,;,,
with costs. //( ,; F,;, ,11111, 1 1 nl,, •_' |.;, ;\- \ m
The respondent, although he may, i>iiiitlHi(iiij
in such ;i case to move at an enrlier .staw I
Ih.
England ;" and there error cannot he hrought |
for any error in a indginent with respect to :
costs : — Held, that the statute was not retro- '
spective, so as to atFeet a writ of error in respect
of costs issued liefore its passing ; for such a
writ is a new .action, and there is nothing in the
statute shewing that it was intended to take
away a vested right. 7^//"- v. /i*!;////, 129 Q. B. 4!).").
Held, th.at the court will not arrest judg- '
liieiit after verdict, or reverse judgment in error,
for any defect patent on the face of the iiidict-
2. Li'iir,- til A/)/ii',il III,,/ Xiitii'i.
[Li'iirc to (ippi'iil 1)1 cil-.i'.i of iinitii,,, i'i„- ,11
is liiiir llini<'a:s.i(iri/ : SJf. Vh-t. r. II. II.]
Where evidence offered at a trial ;uhl i\'j,Tte.lj
affected (Uily the amount of ilaiiia;.'i's, wliioj
were small, the court refused leave tn a]ii
Mili-rsy. Cnrrli; L. ,). l.')2.-(.). 15.
Judgment W!is given ayaiiist <lefoiiiliiii'iiiI
T., 1S()1, on demurrer ami sjiecial oa.<i'. H
nient." as liy 32 & M3 A'ict. e. 2!», s. 32,'"."d.jectkm g'-anting leave to ajipeal the chief jnsti^v
to such .lefectniust he taken l.v demurrer, or l,y ""it«<l that defendants remedy, it aiiv. m^
motion to quash the indictment. Niiihiu v. ''^"' * .''»"«'ry- Ke.cudaut fhrii sian
Mason 2"' C 1' •'4() 'MvX having tailed ajiiiiicd in tcis tonii linlf.in
ltd give notice of ajipeal, iintwitli.-itaiiiliii,' thj
Whether the Police Court is a court of justice ' Lapse of three years. The appliratimi wis p
within .S2 & 33 Vict. c. 21, s. 18, or not, is ii fused. Such leave may he given iimiirO. I
([uestion of law which may he reserved liy the ; C. c. 13, s. 2"), after "fourteen days' fnnithj
judge .at the trial, under C. S. I.'. C. c. 112, s. 1, decision comiilaincil of have elapsed. //;/""' »i
and where it does not appear lij' the record in .^fi//ir, 23 Q. B. 20().
error that the judge refi.sed to reserve such; ^ ;„i^. ^j^; f,n- new trial w.is iiimcil. aiiim
•luestion It cannot he consnlered upon a writ ot ; ^^^j^^^. g,.„„,„,^^ f,„. ,„is,lirectio,i. aii-1 nfuiej
^""'■- •'''• upon that ground. The plaiiitill' liaviiii; t;ik«i
and arguetf it upon other giouiuls. tliu o'l
would not grant leave to appeal finiii tlitivfiiiaj
Brkh'r v. Ana'll. 23 Q. 15. 481.
Where a defendant delayed to pinceeil in a
peal for an unreasonable time, the cdiirt nrilert
the leave to be rescinded, unless lie sliouUwithj
a mouth settle a case for appeiil. ClimM^
Machell, 25 Q. B. 540.
II. Appk.\l from Superior Covrt.s.
1. U'/ieii Aj)j)eal mil I'n'.
Where the verdict had. been taken subject to
the opinion of the court, and the respondents
attended before a judge to settle the case for
appeal : — Held, that they were precluded from
li:!l
ERROR AND API'KAL.
\'2-22
it aplicalilil,., l|,,i||
If (Mnirt lu'ldwinmJ
lis iMinii a iiiMtii.ii t„l
■ fiiilit Mt ;i]i)iu!»ul
iili, IS t,'. IV l,>, al
II iutrriilcMil.f i„ii, I
0.
il'MVill'Jlilltllu L;rui;;,l|
I'nlii a ikTi>io|i iv^im
the I'liili't lii'lhw, ,1
'illil .'/■'l> V. .1/,,,,/i,'
I, s. 'JCi. tlui-.. i,
IV lUiil .\|ilii';il, Hh
till' iiilUt lii'lilW i.hi
ami .'111 ijilii'iiliiiMitlJ
i|Ua>!Kil with lu-tiJ
•ills till' iii'ili-nvi|«iri.l
3»t dl' ritliiv j'lirty. tJ
till' cniirt, wliiih wjj
iilti'V I IV aiiiiii'l tlij
ini|ii.'r. 'i'lif luliitriitiii
i- niiirt lii'iili' a rail
aiipral Uiiiilil lie. anl
it lirrll I lltl'l'i'il. irn^
I/;//..- V. /\i»;/, Ul.
M ( 'haiii'i'i'v i> I'liiiliiid
ill a I'ailsi' |ii-iiiliii:;l
friiiii an iiriliiiliivi'tiii|
s liill UL-'aiiist lii> Am
as tlu'iul'iU'i' ili,-iiii-i
,„,/ ,ii.,-- K .^ A, umi
;;li 111' may, i>iiiill«itoi|
at ail uprlior staa-
Ill ini'l .v./'''.
.(■ iiiiithm fur ;'"''i«i|
hi r. II, ().]
at a triiilaliil n]<:d«\
lit lit' ilaiii;i;.'is, wliioll
[I'liseil U'avo til ;>lil":.ll
|.VJ. Q. 15.
aiiist ck'foiiilaii'iul
mil sjioriill i.':i-'^>'- ")
till' i-'liif' jiistia' int(
vc'iiu'ily. il' !>">• '""^
ant tliiii ^iii'il tliiit
il ill ti'is tiTiii I'lirlf^l
iiiitwitli.'tmiiliii^tllj
III' aiiiilii';iti"ii "■■'*
lie i^ivi'ii iiiiik'r*'. ^l
|iuTt'i.'n iliiy.-' fii'iiitl^
■0 I'laiisoil. H'li'i"'
\\:\\ va« lii'iveil. M'^
IlilTctiiiii. aii'l ''^■'';*
1 jilaiiititi' IwviiiL' taW
L.y grilllllll'. tk' c™
|qi]ieiil from tilt' refiisi
4S1.
laved to vrnceeilins,
Vmc, the coiii't (>v.le«
[unless he shoulil™
Wlitri' tiiiii' ^" npi'^'"' '" the ('(imt (if Kri'di'
■ ,i Viilieal fii ill il" ih'Ut ni.icli; ill I'liaiiilitTH
I ilil ('X|i'''e 1" f"'*' "'"'I' apiieal fiuilil lit' lu'aiil,
I ili'C ill iliainlieM .■aiiiiut cxtcliil tiic tiliii'.
IVlliiv. /''•'''/^''•''A •'< l-'N.^. 10-.-('liy.
|chMili.-T'>.vl">'- iV»'C/v /«(/•-/
WliiTO a >'aiii*e had lii'rii ri'luaid ml the nri-
nil ili'i-T'-e alliriiHil, an aiipeal iiiiist lie lii'iiiij,'lit
Uitliiii a year fi'"ii. f'l*' "liginal dt'enu;, or a
imiiil iiiililiiatiiin \'>r liaxc tu apiiejil ni.i.li'.
kiffii I '""'"•'■ /^"'^''""'' • *'''.V. Ciianili. :{77 ; s.c.
;n,y. ( Iwiiih. MH. Mnw.it.
The fiic't I'f I'" a|iiiliratiiiii tu cxtLiid tlin
hiiiii'f'"''''l'l"'''''"f'' '"^'"'K "ii'di' liifiii'c till' cxiiiry
I ,i I veiir liHlii the deeri'i' nii rthi'ariiij,', \\:in
n ktil "11 i'^ a ni;;eiit I'ea.siiii for cxtrinliii',' the
,, '/Vii'v. ICi '.'.,:! <'hy.<'liainli.:i;{. Sti'nii,ir.
,als(i, ihtjfy. Iliirrill, .'! ( 'liy. < iiainli. .'{|.S.
JliiWflt. '
V partv si'i'kinj; leave tu aiipeal after the time
jiuiitiil iiii' aii|ie.-il has uxiiircd, mii.st aeirniint
tjjjj.n.ti.rily III)' the delay, and shew scniio
MiiMiiiiilile j^rmuids why siieli an imliilgeiiee
iilil l,t. giulited. A party will imt l>e aided
J\ till' aiiirt ill setting up a teehnieal defeliee tn
Itieat a I'l 'ill! just in itself. Where leave to
liiwil after the usual time, was asked under
tj|.^.,„„'jtaiu'es wliieh, in an nrdiiiary case, wcnild
iivt Imli Millieielit to sustain the applieation,
at till' vase siiiight tn ho made hy the apjii'llaiit
^ii stiiL'tissimi juris, anil « itli the view of
leirttinu' ail ei|iiitalile elaiiii, the motion was
[(iiiKil with eiists. (Ullnrl v. Jiirris, -J Chy.
, iVill, \'anKougliiiet.
j iiii.iiiaiiiilieatiiiii fur leave to apjieal from the
loartiit'Cliaiieei-y, tlu' proeeedings were lielil to
[rightly styled as in the ('unit of ('liaiiet:ry,
bniiili'seeiirity for appealing had lieeii jier-
U,l yyic V. Willi,, .'U'liy. Chaml.. :«.—
'oiij;.
Uvo til appeal given under speeial eireiim-
Jaiia>, alter the time had ekljised. litiiik nf
Kj,i(',i/ii(i/r( v. W'ulltii-i, - t'liy. (."liamli. Ki!).
laiiKiiimliiitt ; Uu.ry. I'mrinrinl liisiirinin <\i.,
Il'liy. t'liaiiili. SilT. -'raylor, Simlni-ji ; Unilir
Y'Uirh, ;tl'liy. Chaiiiii. '.tl.- Mowat.
ISiidi loave, after the time has elapsed, will
htW gianteil if the delay is not properly ac-
(uiittil lor. Ihillni V. Riiiirirk, 1 Chy. Cliaiiili.
■•^livngge ; DfiiiMni v. DiiiUnn, '1 Chy.
Ikaiiili. ira.- \aiiKoughnet; Diiji' v. Bornlt, S
fcy. I'baml). HIS. -Mowat.
iTliecdiirt, altliiiugli reluetaiit to shut out a
rtyfrum the privilege of appealing, will not
Icavo tu appeal after a long lapse of time,
wlieri' muiienius sittings of the Court of
Ippeal have keen hekl since the judgment.
■i''«'ii V. Biiiiiiiii; ',i Chy. Clminli. ST"'. —
Iniffii'.
3, HUiijhuj Priici'i'diiiii".
IWcre a li. fa. has keen acted upon bafore the
lit lit ainieul has keen allowed, there can lie
htayot t'xecutimi. The sheriti' must sell and
|; the mmiey iutu court to abide the event of
"Hwal. Uiliiiimry. Halletal., 10 Q. B. 308.
M court refused to resciml the stay of pro-
iliigs on the execution, although no notice of
egtoumb of appeal had lieen served or formal
leave to ap)ieal a.«ked, all ]iartieH having under-
st 1 that the ea.se wmild be .ippeahil. Ilrmif
V. dniit U'lihrii I!. IT. Co., ,S ( '. I', ;4H.
Uefiiidaiits lia\ ilig suei'eeded in rejilevin for a
sekooner, tlie plaintill served iiotiei' of appeal,
and applied to stay prneeedinns for a month to
perfeet his seeliiity, so that delendants might
not in the meantime olitam a return ot the ves-
sel. The court, however, letnsed to interfere.
Sriillx. Ciirrilh it ill., '.'(l (,». I'.. -bTi.
.\ rule nisi fur .i new tri.'il having been dis
eh.il'ged, defendant gave imtiee of appeal, and
olitained an order to stay pmeeeilings until the
appeal bond slionht be entered into by the deti li
dant, or until tlnre should be a riili,' or order
iillowing the plaintitV to proeeed. 'i'lie appeal
bond Nsas marked "allowed" by a jmlL'i' in
ehanibers, after « liieli the plaintitl' entered jndg-
meiit on his verdict. On nintioii to set aside
this judgment : Meld, that the order I'cased to
stay |iroeeeilings altir tlie ajipeal bond had been
allowed ; that sink allowance was a supersedeas
of exeintion only : and th.it the judgnieiit, tlure-
fore, should lie allowed to stand, subject to the
decision in ainieal. /{uliiiisnn v. llurilnii i/ nl.,
•J4 «,>. I'.. -JiS."),
Tlu' court has full pnwcr, nntw ithst:uiding the
I'lrror ,'iiid .\ii)ieal Act, I iS.'iT, to suspend the ope-
ration of its decree, so as to allow an appeal.
Ciitliiii V. ('nfliji, .'i I,. .1. (17. ( 'hy.
\ defend.int in ei|iiity having appealed fruni
an oi'der clireeting liis eoiiiniittal for breaek of
an injunction, a stay of pioeeedings under tke
order )ii'ndilig tke aiipeal was refused, (iiimlili'
V. I/nirlinnl, ,'{ Chy. -JSl.
It is not usual to stay proceedings under a
decree pending all ajipeal, and under the facts of
this ease it was letiised. Jliiruril V. Iliiniril, i
Chy. Chanib. -lA'!. Taylor, Syrilurii.
Security for the costs in appeal, as well as
bekiw, will be reiiiiired before inoeeedings bi'low
will be stayed pending an app< al. .V, <'. Ih. "il."!.
A'aiiKougkiiet.
On a motion forastayoi' execution pending an
appeal it is not necessary to give fourteen clays
notice. Tke ordinary notice is snllieicnt. //" mni
V. Dnriir, .'i Cliy. Clianib, l!)!l. Taylor. /,'</< nc
IJy an ordt.r of tke Court of i'lrror and .\p]ieal,
the Hamilton ami Milton mad eonip.niv were
ordered to remove a bridge constructed by tlieiii
wliicli ini]ieded the lunigatioii of the llesjardins
canal, against which the road company aiipealed
to the (^liieeii in council :--!leli!, tlial under tke
statute, tke circumstance of tke road company
liaving iierfeeteil tke security iv(|iiired by tke
orders of the privy council, was a sullicient an-
swer to a motion lor seiiuestratioii for non-ioni-
pliancc witli tke order reipiiriiig tke removal of
the bridge ; and tke road company liaving aii-
plied to tliis court for a stay of proceeilings
under tke order, pending tkeir appeal to tke
jirivy council, botli motions were refused, but
umler tke circumstances witlmut costs to either
party. DiiikIhk v. Umiiillnu <ni'/ Mlllnii limiil
C'(;.,'l!» Cliy. A'w.
On motion to stay proceedings pending re-
hearing, tke court will foHow the practice laid
down in tke Error and Appeal Act with refer-
ence to staying proceedings [lending an appeal
! to the C'ourt of Error and Appeal, ('lun/ihe//. v.
I EdwanU, G V. R. 159. — Chy. Chanib. —Spragge.
ii
^W^TT-
] 22.1
V.Uluni AND AIM'KAL.
\:-u
4. CditM.
Willie tlif Cciiiit III' (.hii'inH Mi'inli itiiil ('din-
llliili |'|r;lM li.'nl ^'JMii ii|i|iiiMi|i^' il!cl;,'llirlits nil tile
MiUlU' i|iic'sti<>ii, this ciiiirt, nil utlii'iiiiii^' mil' nf
tlicnr jllil){lllt'lltM, iliMiiii.sMt'il tile M|i|ii';il \\ itlliMit
roMtx. ,SV.<7„/i V. I'iiihiii, -J i;. \' A. •.'111. j
'I'llI'lO ]ll'rHclll« I'lltlTfrl jlltil siVllill ciilltl'lutH :
ill tilt' liiiliio iif niic III' till' tlil'cc, I'm' the cmi-
Htnu'timi III' |Mirtimis nl' a rail ruin I, «illiiiiit iiiiy
writli'ii .•i;,'ri'i'iiii'iil ill to till' fliiu'i' nl I'.uli in tlic
coiiliMi'ts, mill i\, liiil X I.S lilt'il liy mir tn have an
wi'cniiiit t.iki'ii, I'l.iiiiiiiii; a larger r<li:iri' in tliu
jirniitji timn tlu^ iiuiHtir allnwi'il liiiii liy liii iv
]Hirt, frmii wliirli all |ia 'tlt'>- aiipialiil ; ami liv
arraiiiiciiicnt tlif iniut Ki'lnw alliriin'il tlic limi-
in;; 111 till' niasti'r «itli a vii'W tn apiieal. 'I'lii'
I'lMIlt, nil illlirillill;,' till' nnll T ln.'lii'A, IflllSl'll till' '
iiist'<nt till' appral tn citlicr party. .Vir/iu/i y,
Mi-I)ii,i(ilil, ,S('liy, Klli, in ai.pi'al."
A ilnrcc liail Iiccn niailr in a faiix' ff' in;; tlu'
plaintillM rclii't, ainl nrilcriii;; ililiinlant^ tn pay
till' iiist.i, uliii'li. Imwc'Vi'r. ttfii' imt paiil. Tin.'
Jilaiiitills appiali'il trmii a pmtinn nf tlu.' ili'ii't'o
witli « liiili tlit'y wci'i' ilisnati-ilii'il, wliivii ap]it'al
\\l\* iliHIuissi'il villi cnstM, tn 111.' paid tn mil' n|'
tlu' rt'spniiili'iiti ; anil tluroiipmi tlu' plaiiitill's
llpplil'il tn wi't nil tile aiiinlllit sn nidiii'd tn lio
jiuiil against tlu' t'lKt.-* ilircrti'il tn lie paid liy tin.'
di'l'i'inlantK in tliu inuit lii'lnw tn tin' plaintill,'<,
wLicli wa.s nrdorud ac'Liiiilingly. /Inn/: a/ I'/i/nr
Camii/ii V. TIkiiiiiii', 10 < 'liy. ;i.">(>.
When tliu cmirt rt'l'iisi'd tn hear an iiiipral, and
orduri'il it tn lie struck nut, lieean.se it had lint
lieeii »et ilnwii I'm argunieiit within the time
lilliiwed liy ;U Viet. e. II, s. 4, (». ; Held, tiiat ,
the reipniideiit, w lin had ap|ii'ared tnaiiHwerthe
appeal, was entitled In his ensts, Im- the ajipel
lant sliniild have applied earlier fur an exteiisiiin
(if the time ; and that the emirt had jiirisilietinii
to grant ensts, thniigh tlu^ ajipeal had imt lieen
heard. Senilile, that the respondent shniild
have stated the lapse nf time as one of liis rea- .
sons against the aiijieal. /'ni/ii/ ('iimKliaii lioiik
V. SliiHiisuii, •_'•_' ' ', r. alii'. ' j
The eniirt on allnwing an appeal gave the costs
of it tn the apiiellant. //</'/» ;'M-. /''(/'/,', 17) V.
P. :.;. j
The Court nf i'lirnr and Apjieal reversed an ]
order of the ( 'nurt of Chaiirery, and direeted a
lietitioii to he dismissed with costs : Held, that
this did not entitle the appellants tn ensts of
Iiroceedings in the court lielow, sul>s;'i{uent to
the order which \vas rever.-ed. //( (I'lKiJIdii, (i
I', it. ST. -Chy. Chamb. Jlohnested, /if/i-ri-i.
."). liiiiiil mill Alhiiniiici .
Where se:.Mirity has heeii allowed under ('. ^*.
U. (.'. c. \'A, s. ',^'^, without <il)jectinii, the court
\"ill not rescind the allowance for want of tliu pro-
eeelings required liy .sees. 33 and 34. The neglect
l)y appellant to take the proceeduigs mentioned
in sees. 3(1 and 37, is no ground for rescinding
the allow :inee. lii.nir v. Jiirris, 14 t '. P. 1244.
.Judgment having been given for the plaintiff',
on motion to allow an appeal bond in a penalty
of £100, it was objectetl that no appeal would
lie, and that the bond should be not merely for
costs, but to secure the judgment : — Held, that
these o))jection8 must be decided by the court
alKivu. Semble, hnwever, that it wm -iiiliri,,,)
in nniount, the case being mn. in MJijii, ^ Z
»'. S. I'. (', •'. 13, M. Mi, subs. », tllr|v«, .*,',''
stay of cXeeutinli. I i'im.^ih/, v. '/'/.. '„,„„(; ,
/jiiiii/ mill h'liiiiiriillnii <'./., •2\ i). ||. j.vj
It is irregnl.ir I'nr a snlicitur In I .iiu'Hvuntr
for costs of appeal I'nr his iliciit. Il-rfiii ^
Wni'i;!, I I 'liy. ('haiiili. ."i. Sprii).'j(|..
.\n appeal bmid and the allidavit nf cxitih,,!
therenf are separatr dociiiiiiiiU, ,1111! iui|,i |,
stamped us such when liled. 'I'ju' rn'mt J,.
respectin;^' law st imps h.is m uje i„, alt,T,iti„ii',j ;
the prJlctli'i' nf the cniirt as tn the liiiidi. „'' ,.,„„,
pilling the proper amninit of lecn. .1/11./,,//, V
Siiiitrl, I Chy. Chanili. lM!l, VaiiKiul^liiict
Where a bond I'nr seiiiiit,\ lor m-its, iiri..r |l|, 1
due priiseeiitinn nf all ap|ieal, i^ liled in .m ..iit«
cniinty, all oliiectinns tn it or to tli-' inlviii. v u;
the suietii s shnllld be decided liV tlic iiiii.t.'i .,•
that county, ilriiilimn v. .V(,(;//(, '| ( 'jiy. rh,,!,,!,'
3,'fl, \'HiiKoughnet.
The blind and the .illiihu its nf cNrrMtinii ;iii.| I
justilicatinii were all clititli'd in tile iiiiiia'(,| \\„\
nrigiiial plaiiitilis. mie nf \\ limn li ul ijicl, mi,!
linth Were lianied as oliligers in tin. I»i||,l:_|
Held, irregular. .UrFiii-Inn, \. />;,■/,■„,„. icin
< haiiili. 377. .Mowat.
A party nppiising the allnwauce nl a siiaiyil
linlld I'nr security I'nr ciists nf all Hplit'iil, iil'ivl
read allidavits in nppnsitimi to the siiictv's alji-f
davit nf jiistilie.itimi. ('mii/i'ii/l \-, /,'ii././'/c,/»,|.j
iliiiii ilmd; li I'. I!. 43. •Ilohnesteil, /,'./'./•.
All appeal bond is prnpcrly ciititii'il in rlif|
cause in the court liclnw. //,.
The bmid should be styled ill the ( 'niiilnf jirrfirl
and .Appeal. The style nf the chiim' in tln' o.iirtj
below, if adnpted, slimild he the style in I'lill, aid]
the parties shiiuld be descrilicd as tlicv IhilhihI
ap|iellaiits and rcspniidcnts, Iml ihcy niiiv l«j
given in the same nider as in tln' stVic "i tliej
nriginal cause. IT' /'/' v. Miitlii.1,,11, -J Chy. ('Iiaiiili,f
73. NauKniighiiet. Sw. //uri'i i/ \. Smiili,
k A. 4S(».
There should be two siillicieiit sui'i'tic!i, anil \(\
one die or become insnlveiit, aimtlur will If^
ordered to be substituted. Hniilmiii v. Smii-
I Chy. Clianib. ,"t34, overruled mi tin- piiiiit I
Sdiiiiilir.iv. Fiiniiriil/, "iChy. ( 'haiiili. I. "ill. -Van
Knughnet.
Security for costs nf appeal, as well ;!.■< tlinsi-.ifl
court below, will be rei|iiiieil I he ^.'ivL'ii iKlnrel
proceedings in the court helow will \k •^tayull
liending an appeal. //< .''in'i/ v. I/i mini, '.M'!iy.|
C'hamb. 24.'). \'an Knughnet.
It is not necessary to move fm- fli' ;i!l"W,iik^
of the bond. If not moved'
teen days fnmi noti' ■ nf i' , ^i\i :
aHowed. Jii'iiil \ > ly. Cliainli. ^'J'
Tayhir, Srrre/m
The practice : , ne perfecting of i^'
to stay execution ippealuig from tlii> ■
is .litlerent from lUi practice .1 aiipwils at U
No motion is necessary hurt ' alluw the .■^kuJ
rity ; the onus of moving u^.iiutt tliu swiintj
being on the party objecting tn it. 7/««"«
JJewiir, 3 Chy. Chamb. !!)!».— 'IVylnr, */"'"■
An application for leave to pay i".'" ^''""■' '-^
as security for costs of an appeal fmni 11 |'trti*
cate of title under the Quieting Titles Act liaviii|
lilt it win '.nili.i„i(
iiic ill wliiLli, m\„
■%. 4, tlluri! Mill Hi
(■ V. 7'/m '',i,„„/;„
I <,> 11 l.VJ
If to liuriiliiciiriint;
rlii'llt, ll'ri',11 f
S|irfii.'u>'.
,lliil;ivit III lAiviiii, ,
iiciit^, ami iiiiKi lie '
il, 'I'lir I'li'ilit .kl
riilf 111! uUiT.itiniun ]
tn th>: llimlt' <i' I'liU).
if fc'M. .l/.|r/,.//, V.
\':illKiiil;^luic't
y Imt rintit, nrlMrtlitl
tl, i-t lilt'il ill :iii i.iiter I
or til till' aiilvi'ii'v I
Il'cI liy till' iiiii«t"r 'li '
i'»ii'/i, 1 I'liy, Cliiiinl),
iit'< I'l (•Xk'i'Utinll ;ll|il[
'<! ill till' IIUllK' I't tlicl
ivllnlll il III ilii'il, llll'l
giTS ill till' li'illil :-
'iir V. /J(i'i'.v.'/i, I Cliy.l
liiwiiiK'i' iif il Hiiiity'il
ts III' illl illljll'.ll, IIIIJ'I
111 til till.' ."iirity's alli'l
iii/i'i'll V. /,'iii/ii/('ii»'i-r
InllllOMtl'll, /i'i.''i
i|nilv I'lltitli'il ill tlie|
'il ill till'* 'lim'tiifi-'.rri'rj
tilt' r:Ul>i' ill till' i.nnrt|
11' till' styli' ill lull. m1
lilinl lis tlll'V liir.'ll-
Is, liUt tliry lii:i.v l»j
iis ill till' styk'iif tliej
/hf.^nii, "J Cliy.Cbiiili.
Ilm-ri 11 V. Siiiilli, '1 1h|
llicii'iit siiR'tii'Miiiilifl
I'llt, lUlotlll'l' will V: I
r,i-'i\ili<iiii V. .Swi'i'
i-nili'il nil tin- imiiit
, ('luiiiili- I'''
l.-Va
I'l'il I
I It'll IX
cllastli'W'fj
I' i;ivi:ll lii-lnrel
liil 111' st:ivi4
vii^
I l,,,.ll uTIlll
taliii'.' "■mil
til it.
y/i
ft«'l«'
(i)._'l'i.yliir, R'f'
to pay iiit" '^""'''
Il api)'
Itiug
il frniiiai'wt*
i'itlt's Act havi:
KSCU(>NV
ll'-'tJ
It nut
W'lu'ii' li'HVc will rfNcrvi'il at tin* tri.il ti
II IllllVt)
',/ V. //i
ft.
,vc for till' iillowaiK^I
^ given.
IV. Cliiiii'''
iit'i'i'i;i.'tiii^ 111 -
thb
^ ^ jaU at l.i»'j
aiow the sccttj
4 the swuritf
liax iiiK
•nl «ll« 11" '
till liy the ri'fcri'c ex |iiirtf,
111 liioiiylit ti> liii^ iiiitiri' tliiit till' ii|i t" .si't iisiijo till' vci'ilii't, ami tn oiitrr a Miilii-t
to till" Ni'liaiatr iuuii'Ih III lainl, mn' Im' tlio iilaiiitiH' ; llilil, that tlir I 'unit nl' .\ii|»uil
Liiiiieil liy il
liil-li:
il M itV, ami till' iitlii'i' •iiiilil mill
1 VI lilirt til
I'lltili
ll> /■'"■/■'
1,V till' liiixi'i'
liaiiil aliiiit', it was lioM that tl iiirr v. /'iii7, '_'."» ( ', I'. ",
»:iii iiiiil, 11"
1 kliii»li '
. iirlillli
1 1 liV.
I'lU'tH .sliiiiilil liavi' lircii iiiaili'
till' I'l'li'liT, ami till' iii'ilrl' llliili'l' itiirli |
I'll' I!
,(■..!., iilll
I iiiTwili iillVrtoil
ly a ili'i ii'c il.M'M iiiit a|i|iral tiniii i
I. til.
iiiwt
tiiiii'i'i iiiailo niioi" niilii'i'. !'• //n,rl,,„'/, „p,,„ (|„, |,|,[„,|il ,,| amitlnr jiarty may -ivc niii'I
" ri'lii'f ii.s tliii t'liiirt may iliiiiU till' |iailir!< iiititli'il
Cliaiiili. Mi. Strung
1 tilt' I'll
il liiimli till' I'anyiiij,' a rajii' tu tim to. Simiii'iin v. M> .\ lilmr, S ( liv.
,'J. Ill aiiiii'ii
ll.
Ciiurt I
f .\|i|ii'iil. i'" altiilavit lit' jiistiliiatiiiii i« Sco, iilno, Tufiiihiii \. ./o'.//A, I K. \ \. ■Ml*.'.
lii'i'i
fK\X\ nil'
III- till' niilor III' till' Ciiint of Mriiii
ii'.'i
1 Ni
ili.iiii
II. 4S. Taylor, /t\l'rii
,11
<l V,
.In
■I <||V.
w
ll.'l.
It til
liilaiits a|i|ii
jiiiiitlv
iiijjlit that all i<vi'i'|it olio Will' I'll
tn III' ii'lii'V I'll li'iiiii till' ili'i'iio, tlll'V iiM'isr
titli'il
ll it,
(i. Othi )■ Cm
All ;iiliniiii'*t''''l""' "■'" I'"' '"!"""""' ''"'''^i^'' I',, it .\. Il'.l
tiotw ithstaiiiliiiL.' tli.it .'ot tn iMii' a)i)ii'll.iiit tho ovi-
ilcmi' was siillii'ii'iit tn i'Ht.'ilili..h tho will iimlci'
liii'li till' lijaiiititr I'laiiiii'il. Itlml, \. lilni'k, 2
] jmlaim;
an ii|ip«i
lit ill lavolirnl Ins llltostato, IHllillllK
I til till' I'liiii't 111 till' j,'iivi'i'iiiir ill I niiiH'i'
^l•lll
lih
a nintiiiii tn iiiako a i
'11 1 till' ( '111111
till' Kiii^
r\\\ I'liiiiif
ll
il,
III tho on/imi
illiilavit that
IC'
utimi, iiltliiiiiuh it ho i.invoil l.y alliila VI t that
till' iihiiiitilf, ill wliiiso faMiiir jmluiiioiit w.is
thii I'liiiit holnw, ilii'il afti r iinlonu'iit,
iiiil IhI'iiii' till' iillnwaiii.'i' (if tho aiiiioal tn tho
KilW ill iiillll'ili tlioiiKli aftor tho allnwaiioo nf
tlin.tiithi^ U'lvi I'liof ami inunoil. Wiiilifnini v. !
p.'«'.//, '.'ll. S. Ili.S.
Htlil. I'll' K-^ti'ii. V, ('., ami llaKarty, .1., that
thti'"iiit»it''i»'i"''""''' ''''"■'"' '■'!"' 'y. 11 1'lliii),'
I jjtliiia.ii'i.oii""* fl'iilii I'l iiiiiinii law 111- I'haiiooiy.
ISwK/iv, yorlnii, 7 L. J. 'JiiH, in i\\>\>ui\\.
Tlirai'iNllim'" i'l ""''■' '""'ioi- umlof tho •_'7th
;aiil«';il mil', imloly st.'itoil lliat tho iiiilj^'iiioiit
tfin-rniiii'iiiis as hoiii^; aj.';iiiist i,i\v ami oviiloiioo,
liii.l U'l'iusi' till.' jiiiy woro niisiliroi'toil. Tho
Iciiiirtlit'lil this iiisiillicioiit, amlnriloroil thatoxo-
Iciiti'ii luiuht issiio : Ijimoro, hnwovor, whothi'i'
ill' was iR'i'ossai'V, as siuli iinticu t'liuhl
.„r I'tl't'i't as a sii|ioi'soiloas. '/'nrraiirf v.
lj;.'i';,.«,ii, II (). 15. •-'()().
At the tiiil tho [ilaiiititl' imt in twn i;hattol
lliicrtg:ii;i's, ami tho lirst hoiiig nlijootoil tn for
liaiit nf ii'liliiif;, 111' II lioil iiimii tho Mocmnl only,
Ikli at till' trial anil nil tho arguinont in torin.
|lliatranrtgii;,'i' was holil tn ho iiivaliil ; anil thu
|(.'«urtiif Apiieal I'omurriiig in the decision, and
liking till' iil'iiiitilt's' laso not one to he favnured,
Irttiistil tn iilliiw tlii'iii to rely ujion the tirst mort-
Ipgi'. Ilnitliimy. Smith, 18 Q. H. 4r)8, in appeal.
(Jiwrc, whether, on the arjjnniont, e\oe]itinnfi
lean lie taken nf wliioli no niitioe has lieeli given,
IfoWiv. Minrhriiil, 13 {). B. !», in appeal.
Nil writ nf error iir appeal is reipiired. Sec.
If.'iiV. S. r.C, e. IS, ahnlishes it notwithstand-
liiiu' ■I'l'. 1)4, iilliriiiiiii,' the oi'der.s of the court until
tiri'il. W here iiiilymoiit of non pros, is autho-
!i/til liy sie. 311, it is not necessary tn ohtain
avenl the cmirt to sign it. The statute and
krilirsMulilethe respondent to jiress tlie case ot
• hearing. Hmrc v. Jiirnit, 14 C. P. '244.
Tlic giiieral rule is, that tlie jndgnient of the
Mrt, ajiptiileil .igaiiist stands, unless the appel-
ke court can say that it is clearly wrong. Keciia
f.&'Wam, 16 C. P. 435.
The ajijv a this case was dismissed without
myilecisii.u ,,ii the merits, there being a mis-
^ilerstamling as to what tnnk place at flie trial.
H(/W"/.ii/v, (Jntario Farmer's Mutual Fire Inau-
'", 33Q. B. 558.
'■ nf Aiiiioal an iinlor nf tho ( 'miit nf t 'ham orv may
I 1 1 1 1 :,' * I. . .. I .. ■ » 1. ':. . 1 1.*. .
10 iiiailo ill t'hanilii'i's if tli
I'll.
r IS tn no III
llu
tornis of tho dooroo, Imt if fiiithii' iliroitiniis or
now tonus are nooossary to laiiy mit tho ilrcroe
in apiioal, the nintinn shniilil ho to tho onurt.
Il'i'i'iv, .l/d/A' sn/y, '_' ( hy, ( 'liaiiil), Itt. .'^inagge.
When; a niarried wnnian dofonded a suit in
Chaiioiry witliniit a next fiioinl, it w.is hold that
tho hiisliaml and wife omilil .ippoal tn this iinirt
withniit any next fiioiid. Ilnth r w ('Inin/i, IH
( hy. I'.KI, ill appeal.
Wlioro the < 'niirt nf .Vjipoal mill is payinont nf
inniioy, and says iintliing as tn any antooodont
intorost thoionn, siioh intorost oaiiiint aftoiwanU
1)0 addoil hy the ( 'nilit nf ( 'haiiooiy ; at all ovoiits,
in oa.sos in wliioli thniiirh intorost is usually givoii,
it is not a matter nf strict legal right, Imt nf dis-
orotinn. linjy. I'mr'nirinl hm. Cu., l!l Cliy. 48.
.\p])ollati' cmirts will nnt, except under spe-
cial oiroiimstanoos, intorfero with tho limling as
to i|iiostiims of fact ilojieiiding on the voracity
and credit of witnesses. ihillnii EIu'Ihui. —
lliirriM V. li,til>,r, II L. .1. -JT.'}. H. ,t A.
KSCAPK.
Si'i' CoN.sr.'ViiLi':- ("iti.MiSAi. li.wv — Sheiufi.'.
E,<5rAPK WAItltANT.
I The Kiiglish statutes 1 Anno st. 2, e. (>, and 5
Anne c. !(, relating to escape warrants, are not
j in force in this province. .\. Wilson, .1., diss.
Ifcihlh V. ]\',inl, 17 ('. P. (it>7.
■See, also, Eciiiifi v. Sliinr, Dra. 3.").
KSCHKAT.
.SVp ArrAiNPEH.
Whether trust estates escheat, considered.
He AiluniH, 4 Chy. Chanib. '2!). —Taylor, JlcJ'tree.
ESCROW.
.SVe Deed.
1;;; I
i
M.
1227
ESTATE.
F.
II.
Ill,
IV.
V.
VJ.
VII,
VIII.
IX.
X.
XI.
XII.
XIII.
KSTATE.
Estate at Will, I "228.
For Veakh — Sie Lanhlord and
Tenant.
For Like.
1. (km'rnllji, lL»;iO.
2. Ttmml l>ii Vki-Iisji, 12.32.
',\. jMiinr- Sii Dower.
4. lihjhl til rnt Timlnr and Tne.i — Svf
Wa.ste.
EsiATE Tail, 12.32.
Estate in Fee, 1233.
Coparceners, Joint Tena.nts, and
Tenants in (.'o.m.mon.
1. O'lural/i/, 12.34.
2. J{iij/,f lo Cru/..^, 123.">.
3. I'lijlif lo Miiinliiin T rarer for CrojM
— S<-i- Tkover.
4. Otli,:r ('(Mcx, 123G.
5. Kji'i't nil lit III/ — .SVc Ejectment.
Kevehsioners and Reveksioxary
EsTATE.S.
1. aciuriil/!/, 1237.
2. Siili (,/■ I'n'i rsionuri/ Intcnit nndir
Kiecniion — .Vic' EXECITION.
.3. Action jlor JJumuijis l/i/ Jhri'rsioii-
erx — iSif IJAMAHE.S.
LeciAL AND EyUITAHLE EsTATE, 12,38.!
Construction of Deeds as regards i
THE Estate Created.
1. K[l'i'rt inid OiM'riition ui' I'lirtkidttr
WoriU, 1240.
2. Olhir CiLtis, 1240.
3. Diidx of liikoKi- and Qn'it VIdiiii —
•Sci- liEl.EASE.
Estate hv Estoppel — Srr Est<jpi'EL.
1. Qentrnllii, 1244.
2. Ritjht of Doinr in Ldii'lsExd,,,,,,,,
— See I)0WEP,.
XVI. MiSCELL.iiNEOUS Casks, 1:>4,;
XVII. Of I'articular rKiisoNs.
1. Oj Aliin.'t iinil lliiir Jh.mi„l,i„,,
<SVc Alien.
2. Of /n/antn—Ser Inkaxi.s.
3. Of Lnnotii:t~-Si, Linato.
4. OfMiirriiil ]V„niii,^--S,, Dowif
— HrsiJAND AND Wife.
.">. Of I'lliiiiiint hi^lihifi,,!!.., __ V,,
ClURCIlES.
(). Of TriixtiiM mill Visini ,/i„ y,.,,,j
—.See Tri'sts am. TiusTKi-
1-.
niMiui ASH
.m>
Trust Estates and Uses
Trisis and Tri.stees — Use.
-.SVe
7. Of Tenanli — .V*.' I,.vn
Tenant.
XVIII. Ad.ministraiid:: ok ,v,, AwiiNi-.
TRATION Si IT HxF.(iroR.S
ADJIINISTRATOIts.
XI.\. Conversion of Ukaltv nv Statue
See CoNVER-.loN (IK Kkauv l;t
Statute.
XX. Conveyance of— .sV* Dkf.h.
XXI. DlSTRIIiUTION OF-. v.,. DlSTRIBlTlwl
OF Estates.
XXII. Mer(;er of— .S'«' .Mkhi;ki!.
XXII I. I'artition of— ,SV( Paktition.
XXIV. Release ovSee Release.
-KXV. Forfeiture of — sVr Attaixdi-h.
XXVI. Oper.viion of .luiMiMF.XTs and Kxe-
CUTIONS — See K.\K( ITKIN -Kst-
cutors and Admin isiK.\ruii>-
MoRTliAOE.
XXVI 1. By Devise-.sv, Whi.
XXVIII. Title Deeds ^.v, Tm.K.
DE.SCENT, 1241.
Heir.
1. Artionx unit Proreedimjx liji anil
A 1 1(1 in it, 1242.
2. Other C«.iM, 1243.
3. Of A/ienM-^Sie Aliens.
4. Leiilinri if I'ediijree — Si
DENCE.
5. I'iuiie'i lo Sitiln in Etjuilij.
I. Estate at Wiir.,
If oil the (lentil of ii teiiMit at will liislifirl
enter, such entry is tortious ; ami il the hv
die, iiiul his heir enter, tiie migiiial owner. irh
heir will he put to his aetion. Dni A. .!/wiv. |
h'injiii/, 3 O. ,S. 4,S-.
Where a jierson enters into [Missi'ssidinit hinlj
. under an ai^reemeiit to puivhase, lie is teiuiit ill
i will to thr seller, and at the sailor's ileitli li:i J
I hcir-atdaw can maintain ejectiiiuiit against liiial
j,<.., ■ without any notice to (niit or ileiiiand of |kis.<c"
I sioii. One d. Kemp V. 1,'iirii' r, I <). li St.
The defendant had heen let into iniiv^iviiDi
XIV.
XV.
(a) UeneraUii — See Pleadin.j ,s ""'l^''- -v ^'.''ntract to ,mreiiase payaMc i.y iiidj
Eou'lTV iiieiits. With !i stiiniiation tor tiirtoitiire il |<i,v-l
, , . /, ' ,-, ,, i nient not made on a particular il.iv, aii'l tiwl
(b) Of torerlomre - See Mort- | vj,,,,,,,^ ,,,„i suhsequent to surli .l.i'y rmivdj
"■^'•'^- I payment on account :— HeM. that clcltiiii;iiitir«|
6. liiijhix of III Ji'ideeni — Sie MoRT- I tenant at will and not hy suir>raiitc, anl tli.it >l
«a«e. I demand of possea.sioii was necessary. Lninli^.l
JJoreii, 7 < '. 1". 38.
A. and B. being partners, A. almn' vcrlvillyj
leased eertain premises for a plaec nf lnisi''<'*f
for a term of five years, at a given rent, i^n
Inith went into possession. A nifnnini'iiitim i'tt
a leivsu was prepared by A. but never sij^fA ^jt
7. Heir and jyeriwe ('oinmiMnion->~See
Heii; and Devisee Commis-
.SION .
Covenant to .Stand Seized, 1244.
ExcuANOB of Lands.
1229
ESTATE.
1230
, ijggor- — Helil, that A. was tenant at will, l By a mortgage in fee to secure the payment of
ftwi^A-iw V. littlfoiir, 3C. P. 72. !814<K).4-2, l)y niontlily instalments of $l-2A-2 it
, ,- ,v i I lo-.i ii T> «• 1 1 i was iirovideil that the niorti'ai'fir slioulil l)eeonie
•>(t 1 ot October, IS.t'J, the Tiufialo and . ',. * ii j. 41 c ' ' ^^".'"^
linto iidssossimi 1)1
On the
that tilt I'lMiiitill
l-flv Ix't
lul
It lllMllltlll ll.K
biiil iiuTily Ik'Ii :illowe(l l)y hi.s father to occuiiy
if iiis
„i tliniiii' 1 the liind 111 (iiU'stion. It aii ueared , , 1 .■ 1.^ • ^ 1 •.. .,
aniltliniii!;"^:^ 1 1' 1 1 ..' niortnai-'ees, inn >n detanlt, a<.'ainst a lessee ot the
had no title to the land, luit . 1 j. ^ i.i~ ^ ,, , ,
mortgagor siibseiiueiit to the liiortgagi; : — Held,
that no notice to i|ilit oi' dein.uid of Jiossession
was necessary : that tiie eoiiiliiiied etfeet of tiic
two clauses was to create in the irortgagor a
(lualilied teiiimey .'it will, and to iiiahlc theniort-
g.igees at their ojdion either to distrain, orntanv
time to eject the mortg.igor himself without
dcm.iiid ; Imt that the mortgagor's lessee, not
having heeii acceiited liy the mortg.agees as tlieir
tenant, was not eiititle<l to ,1 dcmanil of jiosses-
; sion. If the mortgagor had lieeii simply a tenant
at will, Semhle, that the mortgagees might have
, treiiteil the lease liy him to defendant asadeter-
i mination of such tenancy. Ciiintihi /'irniuiii'iit-
linililiuij mill Siiriiiii-1 .V'/i'/V/i/ V. liiiiri, 111 ( '. I'.
• • t'i;it lie h''d a<linitteil ill presence ot
thir that it was with his father, and not w ith
bi:ii that the coiiipany must settle ; and that he
hid wiii'Ki'il midcr the defendant, a contractor
with the ociiniiaiiy, in making the fence .along
the hue thnnigh this hand. After the deed, the;
nhiiiitiff and liis father forbade the defendant '
iMUi entering.
The defendant entered in l>e-
ofinWr, IS.VJ, for the purpose of making the
niiffiy. .aii'l til'" fences along the line lieing iii-
sutiieieiit. the jilaintiff's wheat w.as injured hy
oittle "ettiiig in. For these injuries, he sued in
thi^aetimi trespass (piiere clausum fregit: Held,
thst the iilaiiititr conld not maintain tresjia-ss ] ,_.,
;.,™st aiiv one claiming under the company ; : '•; , ..x
I,", Wivas'iiot at any time more than a tenant l^ee thecases under Limitatiox.sok Action.s
...nil ami the deed de*- .ed the will .and I ^^ I' SriTs, ' in which the operation of the
" • ■ • ^ >^'"*"'- ■■■■«• f"-"^"*--- ■••*'- case of a tenancy
deed de*- .ed the will .and I AN i> Mti
■left him tenant at sim'ci-ance oiily,^ with a right i Statutes o
tiLiittT and remove the crop. Xilsuu v. Cuok,
li 1,1. R •-'•-'.
Tk- |ihiintiH', hy indenture dated (ith April,
IS-M. 'liil " lease let and to farm let," the laml
[ in iiiestion to defendant upon the terms that he
lifcinlljiiy all rates, levies, and assessments upon
[ttoiiil liri'liei'lv. inclose the s.anie with a good
Ifeim. and t'anii the same in a husliand-like
[imuiier, and not transfer without the lessor's
111 which the
Limitations in the
at will is considered. I
.^ee, also, Kject.mknt II. ;} [it] p. IKi'J.
■ lit. and the plaiiititl'for himself, his heirs and
.;,-, (lid thcrehy relit unto the defendant
: I iiiijusi at till' rate of six pence per acre per
1. lavahle hah yearly in .adv.anee. There
1. i liviiy of seisin, nor any time mentioned ;
the defendant entered into possession ; -
i that an estate at will only p.assed. Wiliiiut
: buvU, 7 ('. V. 407.
Ivfendant lieing in default underailemise from
luiitiff, he .and the iilaintitt' referred all ditler-
bces, and the arliitrators jiostponed the <late of
jiTOieiit. (^iiaTc, whether the reference and
uiiient wordd not constitute defendant a
aaiit at will, lilnik w Allan, 17 C. 1'. 240.
[ I'lmitiff being in posession .as assignee of a
li.rtg.igee, under aiiinrtgage upon which default
Mln'eiunade, contracted to sell the inorfgage
fleiidant liir.S")<H); .■*-'()() down, .and .SHIM* on
1st k\\n\ fidliiwiiig ; at which time the plain
la>!reedtii have the uiortg.age assigned to de-
lilant. On payiMeiit of .'i<2(M) defendant w.as
hit" iiiissessiciii. Hi' made ilefault in jiay-
III. For Life.
I. (ii'iii-riilli/.
Under a convey.anee to " B. and her children
for ever," there lieing no children at the time of
the deed : - Helil, that the grantee took only a
j life estate. ,S/iitii/: v. ( Vf/w, j I (). B. •_'07.
A. ilied leaving his wiilow, the plaiiitill', and
' defendant, his heir-atdaw. The plaiiitill' lieing
I in possessi<iii of ]iart of the property, defendant
I executed the following instrument under sivil :
I "Know yo, all men, that I, .1 (1. H., do liind
j myself, my heirs, executors, and assigns, in the
1 sum of t';i(M) to let my iiKither, L. H., retain
' ipiiet and peacealile possession of the lot of land
' now in her possession, the same lieing lifty acres,
more or less, for the term of her natural life ;"—
Hehl, a lease for lif. . and that the plaiiititf
might maintain ejiMtment. Sfinlile, jicr Burns,
I J., that the writing might also ]k- supported as a
j release. Null w /full, l."i i). B. (i;i7.
I Defeiidanton the I.Stli of ( )ctolier, lS.-)2, granted
the land in (|iicstioii to one S., to hold •• to the
said S., and the heirs of his liody, for twenty-
one years, or the term of his natural life, from
the 1st of Ajiril, l!S."i;{. fully to liu complete and
and ended," Imt not to lie iiii<lirli't to any per-
tlie fainilv of the said
.son, exi'ciit to the tainily ot t!ie said S., for any
at iif i'M. I'laiiitirt' gave him iiotiei! that period during the said term. .\ yearly rent was
wo.* ready tu .assign the mortgage on pay- reserved, which .S. covenanted t 1 pay, .and it
lit iif the ainimnt due, and if not |iaid, de- w.as |irovided that on failure to [lerform the
Imt wiiuM he ejected: — Held, tli.it liy cdvenants, the lease and the term theretiygr.mted
flit iu jayineut, the tenancy at will was should cease and lie utterly null and void. The
iverted iiitd a teiianey at autl'erance ; .and, lessee entered, ami on the 1st of .April, IS.'ii), a
I. that the tenancy at will would have been year's rent lieing in arrear, defendant distrained
nniiiwl hy the denianil of payment under \ and sold the goods of ,S., who remained for
thn.'.-it iif ejecting thv dtifendaut, and the ; some time on the jiremises as defendant's aer-
It ui the (lefemlaut to pay. Prince v. \ vaut ; and the sheritt' afterwarns, umler execu-
'1 H C. 1'. 349. 1 tious which had been in his hands since Novem-
''
j
i
1
1231
ESTATE.
1232
bcr, 18jS, sold tlie uiioxpired term of S. in the
prt'inises, deauiiliiiig it as a tcnn with fifteen
yearn yet tii run, at a rent of 8100 a year. Tlie
I)laintirt" l)ei'anie the imrehaser, anil lirought
ejeetnient against ilefeiidant on tlie sheriff's deed :
— Held, that hy the lease S. todk a life estate,
in whieh the term murged, and he therefore had
no ilitrrest whieh the sherill' eonlil nvW under the
ti. fa. against goods. I'fr Mel.eau, .)., the ]il:'.in-
tift "s title also f.iiled. on the ground tli.it the le.ise
being void l>v the non-])ayment of rent, and S.
having given rij) jxissession l)y arrangement with
defendant, his interest was gone. /inh/i v.
JMiirtsoii, V.U). W. 411.
'J'hough a man has heeii in ])ossession for 20
years of land granted to his wife for life, liu does
not thereby aeijuire an absidute title to the land :
for lie is merely seised with her, by operation of
law, of her estate therein, and any grant made
by him will only iiiss an estate for his own life,
if /li.t irij'c shiiiilil Ml Inini I'li-i', and if he pre-
deeease her, tliu right to possession will revert
to her, and entitle her to m.iintain ejeetment
jigainst His grantee. Xnlun v. h'nx, \'tV. P.
I'ndcr a deed of land to a married woman,
dated '.'Tth Mareh. lS-_'4. to hold from the 30th
(/((// (;/" thf xiniir iiKiiit/i, nntil her deeease. and
•after that to her husband for his life : Held,
that though it miglit, if exeetited and livery of
seisin given on the day it bore date, be void, yet
if not exeeuted or livery of seisin not given nntil
after the day on whieh it was to begin to ojie-
rate, it would be good ; but, Sendde, that the
jury might ])roperly have been asked, under the
pceuli ir faets of the ease, to presume one or
both of these propositions in favour of the plain-
tiff, the grantee un<ler the deed. //).
A grant to a m.irried woman of a life estate
in hind does not reipiire the assent of her
husband to jiass the title to her; and unless he
repudiate it in some way, both will be seised in
lier right. 7b.
Senible, a tenant for life of the whole estate
of the testator, consisting of an improved farm,
and of wild l.mds, is bound to keep down
the taxes on the wh(de. li'ismc v,
6 Cliy. 4,S8.
The devisee of a life estate in all
property, is bouml to keep down
taxes on the land, and they bu-m a first charge
on the testator's iutei'est. dfiui v. llntrh, 18
n.y. ?.'.
A testator devised certain lands to his wife for
life, remainder to such of his children as she
should a})point, and, failing issue, to such ehihl
or chihlren of .). ('. as she slumld ajijioint. The
proiierty, it was alleged, was incumbered to its
full value, whieh incuudirance the widow directed
to lie paid out o*' her own funds, and a]i])ointed
the estate to the defendant iM. V. l'p<in a bill
filed to have the sums so ji.iid by the widow
declared a charge on the estate, evidence was
directed to be given as to whether the estate was
of considerably greater value than the claims so
paid off, in which case it w<iuld be declared that
the widow had a lien tliercun for the amount
advanced by her ; but if otherwise, it would Ije
iutciided that the appointment of the estate had
been made freed au(t discharged of such claim.
Macklem v. Cummintj», 7 Chy. 318.
2. Ti iiinil li,/ Ciirfi'.-ii/,
[See .S.'i Viet. e. Ki, s. j. (), j
ffeld, that the husband of a deita.i.ii "'
e.'iuncit be tenant by tlie eurtesy, ex,.i.i|t ,,.■ i *'!' j
of which his wife was seised iif sudi an' ,1'"'''
as that her issue by liiiii Would iiiliciit .•bV'V
to her ; and that as bet ween the rcvei-si,',|ier '*[
tenant by eurtesy, a eonveyauee fmni the t^
ant bv the curtesv opei'ates as a surreinlenf tl" '
life estate, and tlie freeli(,ld in lawvist, i,', • I
assignee befon; entry: and the li'sstr i.,;" j
would, by oper.ition of law ;is lietweL-ii tie
merge in the greater, ;iiid the as>i;;ii,.,,.-s ri"i!t'°'.
enjoyment would be immediate, as if tlii> t'l
for life had died. Itiehards, .1. dj^^ V i ' j
MirrH- ,t al., 8 0. P. .307. " '
Where a married woman elaiiiis uihler l,.ttj.j
jiatent from the crown, her liusli.m,! ^^^.^.,\ '^ I
hiue enteivd upon the land in onUr tn intitL j
him to tenancy by the curtesy, the letters i
sno vigorc, constituting seisin in liut
V. Jiii,y<.-s it ((/., '2-2 ('. v. 104.
im%\
]'inijiiiir/t\,
a testator's
the aunu.al
IV. llsT.vri; 'I'aii..
A testator seised in fee of iainl, linviiiiNUvwll
to one of three sons, "to In- liy liiiii iiitailfil J
any of his issue he may think |iici]iei-," with M
further provision that if jiny ot the tliive shi'dj
die without issue, tiie jiropertv shouhl
divided eijually between tlieir mum i.ss..i-s
jeet to entailment," died liefore the ilth .Marci]
1834. In November, IS;i7, two nl tliu sdiis. Ii|
& K., by deed convi'yed their estates in thuiaiT
to the third son, < '. 'I'liis deed wax luvtrrciil
tered. (". had a eliild whieh Iire-<k\'uase4 liinl
By several deeds, exeeuted respectively in FeH
nary and Mareh, 18(m, D, and his :i^si>;iirt i
insolvency conveyed to ]il;niititl'. Hcith tlies
conveyances were duly registered : IK-Ll, tlial
the three sons took estates tail in the iaiijj
that I). & H. had a contingent interost iiiiJ
tail on failure of the issue of ( '. ; ami that D J
as heir at law of the testator, had the reversion
in fee. Diimhh' v. ./o/nixmi i-f til., 17 t'. P. 9,
Held, also, that although the dieil of Xnveuj
her, 18.")1, might not for want ( f ngistratm
under ('. S. IJ. (!. c. 8.S, s. :!!. havo harri'il thj
entail as against their issue, it diil pass the inJif
vidual rights of the gr.viitois diiriiij,' tlio.ilivaJ
and that as 1)., undi^r wiioni ahuie tlie |iiaiiitir
claimed, was still aliv(^ and cinilil iint iinnacll
this deed, no more could the jilaintitf, whutiol
no higher interest than 1). had it tliin iiihisjuwe/
totransfei'. //(.
Hehl, also, th:it if tlie title had lieeii rei:i>ttre
before 1S.")I, of which tluiv was no eviiknii
and if the plaintiff had relieil en the ii"iire.i
tration of this deed uiuh'r the general lligistij
Act, he woidd, ii))on proof that he was a |iiia
chaser for valuable eonsidcratioii, (as t"«k'i|
howevei', the evidence was otherwise) have li
entitled to succeed as to that purtimi nf th i
which 1). himself ecudd have claimed. jii>;a! J
the deed of 1851 had never hcen cxeeiitel
Sec. 44 of C. S, U. C. c. 83, " Aii .\et r.-i«;(
ing the assurance of estates tail," aifliiv
to cases arising under that statute, aiid iksii
authorize the court, in every case whew a M
band is living apart from his wife, to ilis|it»
with his concurrence in a uonvey.ince hy r
In re McElroy, 32 Q. B. 95.
, s. 1. <).)
of ii iU'ci'ii^'imI viit !
;csy. <-X>.'uiit ht'Ul, I
ll of SlK-ll ill! tstjjj j
(i\ilil iiilifiit. iis htij I
1 till' rfVcrsiimiTanl |
yaiiLM; trniii tlie t* ]
as a ^un•ulllk•r nf tin i
I ill law vfstsiii tail
\il tin: li'ssur o«tat( I
\v as lii'twffii tlifnj
lie as.-igiirt''s ri;;htii||
liati', as if tin- ti'iMtl
Is, .1.. .liss. ir;;,l,v,"
II claims luiilfvktteni
lur lni:-li;uiil iiiT'l ii„tl
Uul ill iM-ill'l' t" illtltl*
I'sy, tliL' lotti-rs[KitiM,|
'isiii ill t'lK-t. I"
104.
1233
ESTATE.
1234
\ decree for specific ixsrforniance will be made pay rent, and by A. for (puet; enjoyment during
inst a tenant in tail. (Inihani v. (lr(ili<tiii. (J: the term. At the end of the term M. gave up
Mmit
Lliv. ST-'.
Btfiire the passing of the Act respecting the
siirmne nf estates tail, a tenant in tail executed
rHeeil liiniiorting to convey the proiierty in fee.
1 "live up possession to the purchaser
i tli'it'tli'' Statute of Limitations did not begin t
Hehl,
gin to
f the tenant in tail until
fim iUMiii'^t the heir o
tlif ileitli i>f the grantor. Jff Slmni; 3 Chy.
lliMil.. ST'-', ^'""■••^t'
\ ti'iwiit in tail, who w.as supposed to have
..', ^^,^. siiupli'. sold the property a few weeks
Wore the passing of the Act respecting assur-
aiiYiif estates tail : the purciiaser acceiited the
convev;niei. iinil liai<l the purchase money, with-
out seeinir the will or having the title invcsti-
iit((l i'he eldest son ot the vendor was not
*" '■ tweiitv-iine at the time • I.- "-w mwm,-.. ,.r
[ l|Ulti
the lease to A., saying he liad no further claim,
but he was alloweil to continue in ]iossession
upon no definite understanding, and defendant
went in after him. I'pon ejectment brought by
the devisee of A. : — Held, that without livery
of seisin the fee sim])le granteil in the ]iremises
could not take eU'ect, ami tlu; tialM>iidnm for 21
years would stancl ; hut a new tiial was granted
to determine the fact of liverv. McUmitihl v.
Mi-(r,in.<, L'l; (.». \\. 4.-),s.
Semble, that the juiy should not be directed
to pi-esume livery of seisin, as tliey would be if
the possi'ssiou had been hehl as on a claim of
absohite ownership. Hi.
A ileod conveying land in fee sim])le, " reser-
ving, nevertheless, to my " the gr;intov's "own
K 'I'.ui..
of land, having cltvi*il
11 he by him eiitailtiltJ
hiiik pro|n.r," with thJ
any ol the three sii'iiiHJ
jiidjierty sliiiulil
I their sueeessui-s, >iiW
I l.efori' the litli M.mii,!
i'.tT, two of the sons, D|
their estates ia thelnnj
lis ileed was never rwil
which iire-ileeeaseil liiaLl
ited respectively ill IViiT
n. and his a^sij;lll1' al
plaiiititl'. Until tli^SiT
mistered : Hi-M, tiiltl
tes t;iil in the Wf
itinueiit interest ill It*
,. ,,f'('. : ami tlwtP.J
vtnr, had the ivviM
,u,l,il, 17 ('.P.O.
l\\ the d( eil »f Xovftal
" want I f registratnn^
s. HI, have liarreil tlK
sue, it did imss till' inili^
,iitors during tlio.r lives!
lioiii al"iie thqtoitif
uid e.aild not iiun*!
the i.laintill'. \vbnt'«)lj
). had it then ill 111' 1"''^*'
title had heeii iviisWte
there was no evi.ltiiilj
veiled i.ntlieiioii-r«ir
,,ler the ueneral lUiiiin
,„of that he was .i 1«1
isideration, (ustowliicK
was otherwise) have *
I that portion ot till' 1«
have elainieiliii'tuj
[ever been executiM
^, 83 " AnAetri-si*.!
|states'tail,"arit*T
Ihat statute, awl ihniM
I evervi'as'-'wlwK'''*
Ironi h'is wife, to iliM*'*
lin a conveyauceliyii^
t.95.
use, benelit and liehoof, the occupation, rents,
I'li- interest, lint was anxious that the sale should issues, ami prolits of the said above granted
k' etfti'teil, urged the purchaser to buy, ami was premises, for and during the term of my natural
jrivvto the eoiiipletiou of the purchase, without life:"— Held, a conveyaiiee of the fee simple, not
mniV.'aiiy notice of his title or of the defect in
the iatlier's right to convey. The purcliaser went
iiitMimssessiiin and improved the premises, and
lail 110 iiotiee of the defect in his title nutil after
tlii ikitli of the vendor :- Held, that he was
entitkil to hold the property in enuity against
.the issue in tail. /''.
Ijefiit ill tlie vendor's title is no bar to the
MriliJ.-rt''s right to relief. Ih.
Held,
a mere testamentary jiajier which the grantor
could revoke by a subseipient deed. •^>ua're,
whether the reservation was void, or whether
oidy the reversion jiassed subject to the life
estate. ,Siiii/i-<'iii v. J/<irliii'iii, "JT *)■ l>. 4(>0.
Under a conveyance of land to M., to hold
"during her natural life, then to go to her heirs
111 juch a case, constructive notice of the • eiiually alike, and their heirs and assigns for
ever :" -Held, that the rule in Shelley's case
apjilied, and that M. took a fee. lirumi v.
0'l)ii-ii<, ;?,:•>(). a 3.->4.
A deed executed in Lower ( '.mada convoyed
certain lands situate in Tjipcr Canada to ]iartics
"and their successors," which words it was
ju'oved would convey the fee simjile aeeording to
the law of Lower Cmada, and it was shewn that
the grantor's intention was to convey the lands
abscdutely. The court ordered the devisee of
the grantor to execute a release of the lands
according to the law of I'pper Canada. A/luii v.
T/ioni,', :i ("hy. t)4.').
See also the cases under "IiKi.kask," relating
to estates in laml.
i.H;
;,iiv, whether a mortgage in tlie short form
■r, k 2.S Vict. c. ;ll, executed by the
ill tail, has the eil'cct of barring the
111: IhiLiiii, 4 Chy. Chaml). SO. — Taylor,
V. KsT.vri: i\ Vf.k.
L,aa '
1 was granted by letters jiatent to A. C,
|er 111 iis anil assigns for ever, "to have and to
kill tht' said parcel or tract of land hereby
Ivciiaiid granted toiler the saiil A. (i., in trust
licrsilf and her children. M. <i. and F. (!.":
Hfil'l. that A. ti. took the fee, and th.at no ^
>tate passed to the children. Hnlilir v.
B;/l,r, K! (,». 11. 00.3.
iTlw iilaintitf in ejectment claimed under a
(ll from one S., who was proved to be the
Her ill fee, expressed to he nnide in pursuance
Itlii'Aet to facilitate the conveyance of real
Wrty, liy which .S. , in consideration of t'To,
"i|iiit elaim til oiie(i., his heirs and assiifns
t ever, all his right and title to the land in
istimi. it wiw* added that <i. might take pos-
lliiiii, that S. would execute such further as-
fJiices as might he rctiuisite, that he liad <lone
ttc\ tn eneuiiilier ; and he released and ((uitted
»iito(i.all his claim upon said lands : — Held,
ioient to pass the title in fee. Xh'htilnon v.
Um.jh, 21 Q. B, .VJl.
. by indenture, in 1820, in consideration of
i itiits and eoveuants by M. to lie paid and
Konned, "granted, demised, and to fann let
KI., his heirs and assigns," certain land,
Tenilum, "unto the said M., his heirs and
, from the day of the date hereof, for and
ng the term of 21 years," yielding and pay-
|yearly duriug said term to M., his heirs and
"8. (A. There was a covenant by M. to
a joint de-
VL CoP.VUCF.NERS, .loINT Tf.N.SNTS, AMI TkX-
ANTs IN Common.
1. (I'l'iiiriill;/.
Tenants in connnon cammt make
uiise in ejectment. Dm d. .Vi-X(if> v.
(>. S. -A-IX
Mortgagees are not trustees umler 4 Will. IV.
e. 1, s. 48, so as to take jointly when the deed
is silent as to the tenancy created. Dm' d. .S7(i(-
/ir (7 III. V. Cfirln; H. T". 2 Vict.
A release by one joint tenant to another eon-
vevs a fee, without words of iidieritance. linllan
v.'h'Kltdii, M. T. 4 Viet.
A conveyance in fee to A. by R. , the survivor
of two joint tenants, "of his undivided half of
the lot, "puts an end to the joint tenancy and
makes the joint tenant B. till he die a tenant in
common with A. ; antl B. by his will may ileviso
the moiety he has not by his deed conveyed to
A. Dof d. EherU v. Montreuil, 6 Q. B. 513.
The eflfect of C. S. U. C. c. 82, s. 10, is to create
a tenaucv in common only in cases where before
the 1st July, 1834, there would have bceu a joint
' '1'
Mi
1235
tenancy. /// re
31 Q. B. (>03.
ESTATE.
Slidivr ft (il., (iiut Hart vt ui.
12,15
with su;L;ar corn and potatoes, and imctbirl •
the Indian corn, anil that H. was to In'
remainder. Sulisecinently, H., ])uiii.r iii,||'.|\' !'"
tlie plaiiititt' on a note, soM l,is interest in' i
■ growini; crop to the jil lintitl', tli
idlowed on tile note.
i eiited a hill <if .side of the crop to tii- .iii,,,!
At a later perin,! \\ ^^^
who afterwanls claimed tlic c
lltllV
One tenant in common may commit trespass . „. , „ .,„,im
l)y expelling his co-tenant and taking tht; whole | tlie plaiiititt' on a note, sold iiis interest
enjoyment of the estate wrongfully to himself.
I'clrh V. Titijh.r, ;{ Q. H. 457.
At co'iiiiion law tiiere can lie no action of ac
count liy one tenant in common or joint tenant,
unless there h:is lieen an appoiiitiiient of one by
the otiier as liailill'. (iri'/uri/ <t ii.i: v. I'diiiioIIi},
7 Q. B. i-)(K).
Under the stitute .") .Anne, c. llj, however,
one tenant in common, or joint tenant, may he
sueil as i)ailill' in an action of account, whenever
he has entered and taken more than iiis just
share of the protits, whether hy appointment of
his co-tenant or not. //;.
t.,
in;
';':"[' :is 1,1,
own, and harvested it ; Ifelil, tii.it |(
fcnd.iiit were tenants in coiiiiiicin i,\ t]^. .,, .
Indian com ; that one tenant, in e.i!iiiM,m ' '
not maintain trespass or tn.vev a-iiin h,'*
tenmt for merely rcaiiing ,ind liinvstiiKM^
crop ; Imt he may, if his co-tenant ii,,s , 1 ]
tile crop, or dealt with it .so th it lie ,i,iii„t l
take it or pursue his remedies .iLtaiiist tin, ],.fj
wlio Have possession ot it; and that iiii'lertltf
circumstinces of tiiec ase tiie cmirt nii"litis„„
Semide, that coparceners, not coming withiir after verdict for the plaiiitiir, in tii.-i'
that statute, I'anuot sue each other in an action
of account. The |)oint, however, was not ex
anyipiestiou raised on the p^iint, t.li'a sii,.li',!v'!'','il
had h ippenedas entitled the plaintillM
■ mere i
pre.ssly decided, as the court lielil that in this his action against the defeinl'ant for omv,?''' "l
case the facts shewed tiivt the defendant entered Hrdili/ v. Aniohl, li» ( '. |'. 4^). Sre i!*' TTl
into possession of the laiul not as a coparcener, iv /• v. .}/iir/,'/riii, II (). M. ,"i|;j '' '"'
claiming through his wife an.l in privity with the Although tlio general ndeis that tlie ,
plaintitl, l.ut as .111 execut<(r claiming adverselv to ,,f ,,.,,. f,.niiif in e..n.,n,„, 1 t, '
the plaintitfwitiiout his consent :aiultii:tt on that tL c^ ti v ^ ate w ^ r il f'''rr:' 4
1 i.1 i.- c L. I I i !• II IIU. I Utile CSt.ltU, \\\\\ Uitt IVM'lfl* lilJll li 1 iK. * J
ground the action of account would not lie. II,. ,,„,t,,„ ^„t, „.ho might himself e, 't'l ,'l,Il tlJ
Wliere a husliaud is seised as tenant in com- ■^'' ' '^' '■ ■'
mon, his wife may be endowed. Jlani v. //((/«,
14 (). B. 4!)7.
The deith of one joint tenant during their
joint .seisin, ]>asses the title to the co-joiiit ten-
ant five from dower of tile deceased joint ten-
ant's widow, //itd'tll V. Frani r, 12 C l*. 383.
Ill ejeetmeiit for part of the cast half of a lot,
it appeared tiiat L., the patentee, in IS."!."), exe-
cuted an agi'eemeMf^ uiiderse.il, wiiereliy he gave
to iiis son .1. liis right, title, and interest of one
half of tile east half, with certain jiortionsof the
house, stiiiulating that lu' was to till the farm as
usual, ami give the fatheroue-h.ilf of the produce.
if demamled :~HeM, tiiat tlie ellcct ..f the deed
wa.s to give an undivided nioietv of the half lot
to J. U(i-/i V. /..■-•-•/( </ ,(/., L>4 {). B. 321.
2. Ifiulit lu rOv/y<.v.
Where the jilaintill' and ilefendant, being each
possessed of a farm, agreed towork them together
and divide the protits arising from them at the
end of tlie season ; and before the harvest defen-
dant was dispossessed of his farm by ejcetnicnt, !
and the ])laintiH' thereujion g.ive him notice th.lt
he would not divide his crojis with him. iiotwith- 1
standing which the defendant entered the plain- '
tiff's farm aii<l took away his share of tlie crop : -
Held, that the plaintiff could not niaintaiu tres- '
pass against him. Wiuipx. Mdrnioii, 2 Q. B. 14(i.
A., of whom the plaintiff was administratrix,
and defendant having worked and stocked a,
farm in partnership : - Held, that on the deatli [
of one, the survivor ilid not take the whole of
the chattels, but that the maxim "Jus accres- 1
cendi inter mercatores locum noii habet, "ap-
plied. llatliinU v. liidhirvU, 2ti (,). B. 179.
H., by agreement witli defendant, planted six-
teen and a half acres of defendant's land with
Indian corn and other crops, the agreement being
that H. was to do all the work, and defendant
to receive for his share as much Indian corn as
should represent the portion of the land sown
the pos.sessioii with the other, ami tht nrt\iil
not ill such a case interfere with the deijlir
such co-tenant in regard to tlie jMdiiertv: "till
where the co-ten iiit in iiossessiuii was tlieiii'.tlia
of the other co-tenants, all of wlioiii w.'iv iniin^
at the time of her second iiriniai.'e, the oim
at the iiistinee of one of the ehildreii wlmy
attaincil majiirity, restrained the huslmiii
wife from selling or disjiosing ot' the ehiiisnity
current year, or the lU'oeeei Is thereof, unless tiit|
undertook to bring into c<iiirt nne-tliinl nf >';i
proceeds; but refused to interfere with tlif |.
session of the mother and her liiisliiinliii rou
of jirevious years, .altlioiigh ;is to .siah |iito
years the mother iiiighl liave been ,U'-(iiiiit,iii|t
to her infant children as trustee fur them /ti/3
v. Miirliii, 12 Chy. 4!K).
4. Otiii'r (Vf.srs.
One tenant in common will he ivstr.iiiifl ;
the suit of a co-teiiaut from diitirim,' earth t
bricks on the joint in'opertv. /hitninll \ f,,.!^
4 Chy. 3I!».
Where costs were iueiirred liy a tenant i
common, suing on beh.df of hiiiis'elt amlliiso
tenants, in restraining the eoniniittiiii; ni »;ii|
oil the joint |iro])erty by a straiiirer, it w.isj
Held, that, on its being shewn that the suits
necessary and proper, and that it ivsiiltel
beiielit to the co-owners, they sIkhiI.I sImmK
exiicnse. in proportion to the adv.int i.-i tiirv
derived from the suit, '/f/' v. .l/ii/ftoAW/, 1
Chy. 14').
The plaintill' and L. were tenants in 1 iniiiil
of an oil well. They tilled an oil tank vx\\\
cipial in ((uantity to 2,400 b,iiiel>, nt wliidi 1.
belonged to the jilaintill' and ,S(MI tii lidiiiili
and they agreed that tlii^ oil was nut tnKd
under .*>"> a barrel ; tliey were nut partnirs.
without authority, contracted for the silinH
the oil in the tank at ^\.^l'^ a barrel : Hil
a bill against the imrchaser, that L. hail iinnjl
to sell the plaintiff's portion of the oil, anil
the defendant's removal of it wnuM Ik.' wronjfi
123f,
», ami iiiu'-tbini ..i
[. w.is til liavf tiij
., \M\\ii imWitoltu
I liis iiiteivst iiitlie
itV, till' jirlif ln;iii^
liter juMinil H. ixt.
o)) til til.' ili'luiiihiit,
i; I'litir.' i-riiii ;is liij
jlil, tli:it II. :m.i.
iiiiiiin 111 tliu iT..|M,j
lilt, ill I'liiiiiiLiin < ,1.
;riiVL'V aii'iiii^t Ih^m-
aii'l Irirvi-stiiig lit I
• tfiiaiit li;is I'liusuniiil I
Mil til it he I'lnunt K-
ics:iu:lilist tile ji' r-.M I
; iiml that lUhliTtii*]
le ciiurt liiiullt ussiiiiir,
ititT, ill the aU^eiirt „i 1
|) lint, th it such I'Viiitj j
le (ilaiiitilVtiiiiiiiiitiinl
'Uilaiit I'lir emiv.-v-iii
I'. \1. See, aUii. f'„(.j
r.i:<.
lie' is that the men' 1:11
II ImMiim \insse<siiiii„
; VellileV hilll lilhlv t"
iiusell' eiiti'i' ami liii^
tiler, ami the i-mirt Mil
■rt; with the lUviliii^fl
I to the \iviiiierty: >til|
issessiiiu was theinitliei
ill III' whiiiii weivmiiiit^
ml iiririiaue, the i-i
)!' the ehihlivii \vh"kj
raiiieil the hushaivl jij
iiisiu'i III' the emibiiitlid
•oeils thel-eiif, uiili'SStWjj
ciiurt iilie-tliiril I't ;
II interfere with tin/ !»■
iilhei-liusliaii.liii^.-'
umh a.s til sileli intv!':
I ivt.' lii'eii ac'.'iiiiiit;i''14
trustee fnl' tlielil. if''
oil will he restraiir
I rum ili.Htliii.i! >•■
;irtll I
evtv.
/hiiiiiitil y
II V. fn:
liieiiv
veil hv a tdiMtl
il liuiise
It ami li:
liV
■iiiiiiittiii,;; "1 »^1
stlMllflel', it «■':
shewn
that the snii'
anil that it i'
tliev
ilmul.
suite
sh:ir.' ti
the ailvant i;e tli<
dii'i' V.
were tenants in o
hieil an
il tank witM
JM)l.arrels,iitwW
[ff iUiil S(M) to ih'H'ii'l*
1 was lint till*'
„-i' lint \iM-U\iK-
;teil fur the siilnii
lie 1)1
Itrae
SI.'.'.") ;i l«rre
HittJ
thatlJw'l"',
„f the oil. anil«
iof itwimWI«f™8'
liaser,
Iirtiou
1237
ESTATE.
1238
tut that .OS the oil was a staple cfunmoility which ;
hul not liny jieculiar value, anil as there was no
tilneitiry relation between the plaintitl' ami [,.
ti,,. iiliiiiititi' was not entitled to an iujiinetion ;
.,,, 1 tlliit his iiiily renieily was an action at law.
j/„*i« V. .Vi'/v/V, 18Chy. mi
(iiieiif two teiitints in eonnmm of himl, leased
iirt iif it •'•'* -^ stone ijuurry : Held, that the
ithiT tenant in cumnioii was entitled to an
'iiiinnitiiiu against furtlier (|nairyiiii,% ■•iml to an ;
■iinnt a"aiiist the lessee for one moiety of what
'Ij'^'llieenTilready (juanied. On a hill liled liy
.L oiiteiiant .igainst the lessor and lessee,
^llfinjie tli.it the lessee Inid iiiiarried stmie t
' iiffjil ° the limits as well as within the limits
III the liiliils ileiiiised, the lessee by his answer
i,isi>tiil I'll his right to (|iiaiTy where he had,
the limits uI the ai I'e really agreed to be de-
jiiscil lieing '''""^'''^"t from those nientioned in
the lease, hut did not submit to aeeoiint for the
gtiiiie qiianied. At the hearing the court niado
a ikcice fur all aecoiiiit with costs against the
lessee. VimdiiiDW V. Fttn/iilini; 1!> C'hy. liU.
due iif several devisees claimed to be sidely
entitW, mill nmrtgaged the iiro|ierty ; and the
niiirt"ai'ees entered into the receijitof the rents :
-Hi-iil tliat they must aci'oiiiit to the other
il.visci's fur their shares of tlie rents, .\frliiiii.ili
y/l'l„ Uiiliirii) /idid; ly t'hy. l.V).
due (if several tenants in comnion, being in
: ailciiiLSsessiiin of the iireiiiises and claiming to be
; ji,l(lv eiititlt "
insured the luiildings on the
IpKity ; the Imililings having been destroyed
I 1a !• the iiisiiraiice moneys were jiaid to the
I ,i:v uisuiiii", anil new buildings were erected
: , liei.'iili til wliiiin he had contracted to sell
il, 1! iiieity :- Held, on relieaiiiig, varying the
i...!, liriimiiuieeil. Spragge, ('., ilubitante, (IK
II, l.u.lthat the party insuring wis entitled
t„ ! iiiiiiiriate the insurance money to his own
hiiiit. Mliitutli V. tliiliirin liiiiik, L'O Chy. •1\.
IIM, al.sii. varying the original decree, that
l.ii-init entitled to any allowance in respect
(i: i' new liiiililinga. U>.
\ t unit in eiiinmon being in actual oeciii>ation
c :,. jiiiiit estate forms no ground for charging
l;;!;i uith rent. It would be otherwise, however,
iiiii liail lieeii in the actual receipt of rent from
;i!i4 unties, y.'ice v. d'conji', 'JO t'hy. l.'2I.
due iif several tenants in common, or joint
lunts, making iniiiroveineiits on the joint
tote, is nut entitled to be paid therefor, unless,
the iitlier hand, he consents to be charged
thiiiin]iatiiin rent. Semble, that one tenant
nminiin selling timber oil" the joint property is
it eluir^'ualile with sums reali/.ed therefrom. /!>.
■Iiiint tenants in tail executed articles of agree-
itiit till' a ilivisidii of the property ; and each
tilt intii jiiissessiiiii, and for thirty-six years
iiitimteil til eiijiiy the portion allotted to him,
tliciialiill was tiled to enforce the agreement :
Hdil, that the defendant could not .set upas
(lefeneetii sueh hill that the phiintitl hatl by
wssioii aeiiiiired a perfect title at hiw. O'ra-
'iiv. (Irnhiim, t) (.'hy. 37'J.
VII. Reversioneks and IIEVEK.SI0N.4RY
Estates.
1. dencralbj.
iHelil, that the acceptance of a deed of land
im the reversioner in fee did not of itself
acknowledge any present right or interest in sueh
reversioner. Wilkitituii v. ('onkliii, 10 V. V. 'Jll,
The mortg.aceo of a term of years, being in
possession of the mortgaged estate, will at tho
suit of the mortgagor be restrained by injunction
from felling tinilier on the mortgaged premises ;
although the mortgagee may have obtiiincd tho
consent of the reversioner to what he is doing.
VliUluibii V. Sliililiiii, I Chy. 3l,S.
Qmere, whether tin; doctrine a[)plie.'ible in
hhigland between termor iiml reversioner in re-
spect to felling timber, can prevail as to an
estate in this country ; the beiielieial enjoyment
of which is ordinarily attained, and can be gene-
rally obtained only through the destruction of
the growing timber ; and whether the doctiines
of the common law as to growing timber can be
applied in all their extent to forest land in this
country. Jli.
Although the number of persons in this country
in the pnsitioii of expeetint heirs and reversioners
is but small, still the same rule .applies here as in
Kiiidand, the principle of the doctrine being that
sudi persons need to be protected against the
ci)nsei|uences of their own improvidence in deal-
ing with designing men. Man if v. Toihn, 6
Chy. 17<).
Where the tenant for life was the father of the
reversioner, but the son was not dependent upon
him, and had no expectation from him, and both
were illiterate (tersons :- -Held, that the father's
knowledge of the sale of the rever.sion by the
son did not render sueh sale unimpeachable, lb.
N'lll. Lkcai. ami KviirAiii.K Kstatk.
Wliere defendant in November, 1.S5S, conveyed
the re.il estate which lornied his i|ualitication to
his f.ither, f"r a consideratiuii of t.'WO, for which
he took his father's notes payable at ilistant
dates, and in February, I8(i0, purchased tho
prii[ierty back, returning to his father all tho
notes; though tho father did not reconvoy the
! property to tho son till ;h'il < )etober, 1800, yet
the son was held to have had at the time of the
assessment, "an ecpiitable estate" within tho
meaning of sec. 70 of the Municipal Institutions
Act. Iliijiitu I'.r nl. T'dl V. Cliii/ni', ~ L.J. i)'J. —
I C. L. t'hamb. — Draper.
Though a surviving partner may have an ccpii-
t.ible title, yet the heir of the deceased partner
\ suing in ejectment upon his ancestor's legal title
need not demand possession. J)<i) d. AlkiiiHaii,
I V. MrL,„(l, H(). H. :U4.
I On tho lilthof .fanuary, IS'J4, tho crown gran-
ted to O. S., <;. M., and .1. M., in fee, certain
lands which had formerly been set apart for a
rectory, and on which ac'hurch had been erected,
in trust to eontirm all existing lea.ses, and to
grant new leases, and apply tho rent first to the
payment of any money borrowed for erecting a
new church, and then to pay tho rent to tho
I clergyman of such church ; with a proviso for
the appointment of new trustees by the throe
grantees, or tho survivors or survivor of them,
and a further proviso, that whenever the gover-
nor should erect a parsonage or rectory in King-
ston, and duly present an incumbent thereto,
the trustees should by instrument under their
hands and seals, attested by two credible wit-
nesses, convey the laud to such incumbent and
li' ■!!
I'll :|
i
'i'
1 !
ii
1239
ESTATE.
1210
liis successors forever, upon the same trusts I to recover the amount jinid to I?. .I- V. ■_« ],
thereinbefore expressed. On the '2 1st of January, 1 atfirmini,' the juik'uient of tlie cmirt liili.^ ,| ,
18H(), letters patent issued erecting a rectory in ' the phiintifl' couhl not reeovei', for tint tli i ^'
Kingston
trusts nf the patent of !S24 liad heen fuhilled, i grouni
and on that ihiy hy deed poll, after reciting the i by the
two ])ateiits uliove mentioned, and the induction
of the said < >. S. into the said rectory, the said
Before the tOth of May, 18.37, the t would constitute a good defence mi ^,|.,,;, i,
rounds to an action lirougiit iigiiinst iliLi,?'
. . - _, , . «""; !i"d the title of tlicC(,v,.|ni,t„|,',"';
two ])ateiits above mentioned, and the induction covenantee being ecjuitable only, tjic i.hiiTl-
■ . " '' i« assignee (if the c()venant, coi'il'l staiul ill',,
(i. M. and .1. M., the two other grantees in the better pnsition than his assiniKir. r/„,/,
iirst patent mentioned, in fullilmentof the trust j Oilhirt, •24 ('. P. "UK). '" ' ' "" ^
conveyed the land to the said (>. S., as rector ! » •!■ > ^ >
- ••' ■ .■■,,.. , : ,. A wue s conveyance of lu
and incundient, to hold to him and tn his sue
cessors, siilyect to and under the uses and trusts
set forth in the letters ]iatent to them. 'I'o this
was api)cnded another deed poll of the same
date, executeil by O. S. , and declaring, lor him-
self and his heirs, that as one of the trustees
named in the patent of 18'24 he agreed to this
assignment, and held the same in his capacity of
rector and incundient <)f Kiiigstini, and not other-
wise. In 1S4-2, (). S. leased the land for twenty-
one years, with certain covenants for liuilding
and renewal. In this lease he was described as
rector, and it recited the two jiatents of 1824
and 183(1. 'I'he successor of (>. S. brought eject
r ei|iiit,il.jc(..,»tn,. j,
valid without the husliand juiiiiin.' in tlnH'.iiiv,v
auce : and the husliinid h,-i\iiin ' d,,. ],.„.|| jV
veste.l in him, the wifi''« vumU.,. „:,« j'^.i,! ''
titled to a decice against the jiiisli '
veyanec. Adninn \. Liiniii'i.-i. -Ji-i {
See " CoVKNANTS Kol! 'I'm
'••iiid tnr.u,,,,.
liy. nil.
III.
■1.
in;(;Ai;ii. n,j
I.\. CiiNSTltiClloV (IK |)Kr;i)> AS
KsT.^Ti: t'liK.vir.i).
1. Kji'ifl mill OjiiniUmi uf I'lirln-nhi,- ||„,.,;,
In an iustr
- . 'tniment under seal the wiinl< ".|,„i
nient against defendants, claiming under this for securing, i\:c., tiie said 1'. i'. ilntli h v' ■
specially bind, nblige, iiKirtgagc, aiitlliyiintliJ2 j
lease : — Held, on the authority of Ilcuned. liow-
yer r. Judge, 1 1 Ivist "288, that the conveyance of
18.37 passed two-thirds to the plaintiff, and that
he Mas entitled to recover for that ; for, Sendile,
in a court of law the ground that the trust to
coirey being joint was incapable of severance
could not arise, the legal estate onlj" being in
question. Ay.-''('/' v. KirlqMir'ti'k it c/., 2() Q. H.
217.
But for that decision. Semble, that if the
appointment of <'. S. as rector rendered him
ipso facto incapable of acting in the trusts of the
patent of 1824, it could not divest him of the
estate, or prevent him from joining in a convey-
ance to any new trustee substituted tor him ;
nor could the deed poll of 1837, executed l)y
him, pass the estate vested in him in trust in his
natural capacity, to himself as a rector and cor-
poration sole; that whether the grantees in the
patent were to be treated as taking a power or
as trustees owning the fee, the conveyance bj- two
only of the three was inoperative ; and, SendJe,
tliat they were trustees. ///.
Defendant being seized in fee of certain land
in trust for his son, at the recpiest of the son,
mortgaged it to B. i& ^'. for ?i!400, the son re-
ceiving tile ni(Uiey and agreeing to pay it ofi'.
Afterwards the defendant conveyed to his son,
the consideration stated being .'54,000, but in
reality it was a gift, and the deed by inadser-
tenee and mistake contained a covenant for the
right to convey, ^notwithstanding defendant's
acts, and that he had done no act to encumber
the laud. On the 21st October, 18(il), the son
mortgaged the land to the plaintiff for .'?400, .and
the .s:ud pKX'c or jiarcel of Luid," &,.„,,;,.,, „J
nitercst ; they only shew an intention t( civate
a charge or lien. Dm d. /,'.,..„■ v. /'<(/.-/, sii'i!
liy a cmveyancc of land, together with the j
houses and casements, prolits. privi!ei.'cs. \wxA
(litanients, (.\:c., to said parcel of l,iii.rlil'"!i m-
or HI anywise appei'taining, and all tliu \\h\1
issues and prolits tiiercol, gMwiii',' cin|is in tlit
ground at the execution of the lici..] uiH [,,,s5t,i
the grantee. Wmiil \-, /,,(/,./,.",(' P. 204.
Held, that the Words '-all niy ]'i;;lit. iiitvrust,
and estate of, in and to tiic estate ol C. M, ami j
.M. M." in a conveyance, passed all tiie estatfoij
the grantor in C. .M.'s e.>tate. O'Xiil \ i',i,:,i I
8c. r. ;i.S!l. ' ■'
"Assign ' is a goml opurativc word tn|ia,->tk|
fee. /•'/•((.<(•/• v. /•'/■'(..(,• |4('. I'. 70.
2. Olliir ( ■ii.ir.i.
A. received from ]!. a [loucr of attorney IomU
lands. I'ndei'thispower A. diliveiviltii(',a.i i(ij
professing to be nnule as follows : '•llc'tHviii A., j
fiy and under ]iower of r.ttorney, lpiariii:,'il:ik, I
iVc, by and from one H., &c.. yeniiian. nf tluIir-tJ
jiart, and (_'. of the other part." Tliniii;;li.iiit]
the deed. A., the said ]iartyof the lir>t ii,''t. u.ijj
nuide the grantoi', and die deed w.is tiui- r\i'-j
cuted : '■ liy power of attorney liuarinL'datr I4:li|
April, 1S41».
(Siunedi A. [L.S]
(Signed) <. ll-^-\
this mortgage was foreclosed by the plaintitl', ITcld, that A. licing tiie gianting [liirty in tliel
who was compelled to pay oft' the mortgage to i deed, and not ]i., B. 's interest did nut i«i,-
B. it V. It did not .appear that the idaintiii' ! the (leed. Z\irk><ti ili r x. Jiuinl, ') (}. H. .'ilil.
had any knowledge of the trust between the ; ^ 1 1 i.i i. 'c r> i i i i
father and son, or of the arrangement between I ^''f'^"' *'f * ^^'^'l '\ ^- Vi , 1 "" ,.
them as to the mortgage to B. & V.. or that he \ «''f."t'"« 1'="^' *''^^ 'l^'«' ^V(inld have Kn;,, ... *
knew of this mortgagee until after the foreclosure, '''^''''' ^■"""^ ^^"^ '"^^''''''^^^ """''-' '" ^■'""'""'' ' '
hut it appeared that it, together with the other
conveyances, had been duly registered, and that
tlie laud was worth both the mortgages. The
plaintitl' having sued the defendant on the cove-
uant coutaiued in defendant's deed to the son,
the]
If a party convey land and all his estate thema
as hrir-at-law of another person (looeased, thuui;*
he claim as devisee and not as In ir-al-ln"; st'ffi
the land passes. Doe d, Clark v. ^[dllm■■',6^
B. 28.
12iO
R. & V. ;-H,.i,i
court liiliiw, tlm
for tluit tliuiiutj
.'iKT on (.■(niiiiii,!,
against d. iiMnhn!
lie riivcn;int"riuiil
inly, the i.laintiif,
coiiM stauil 111 ||„
ignor. '■/„,,(„„ y
■ (•llMit:ll'll•l■^t.HMi
iniug in tln'omviv-
in'i tlif li'ii:il tit'ls
mice was ia!,l in.
hnsliand fur a imi-
■^■1 ( liy. W.
i.i:," lil. -1. 11. sv
s AS r,r.i;Ai;iis nn
I'dl'f'irill'l,-
,;l.
al ilic wui-ils, "iiuil j
I', i'. .Intli liiivly
igu, anil hyiintlii'iMtc j
lanJ," iVc, [KISS iifi j
1 intfutiou tr dvatc |
«x V. ;'.(/■•/, Ml. B.
1, to.uvtiR'i' witli the]
lits, jirivilcgus, licrt-
i/L'! ol' laml iicl"Ui:iiii;|
H, ami all tin.' iviit*, I
gi-owinu i.'ici|is ill tile j
the ilfiil will lu-t'ij
1./. .'if. r. ■-'(1-1.
11
my ri,:;lit, iiituv-t.
stato ol i;. M. ;iiiil|
jilall tlii'fst;it.-.ijj
(i'y>il\: ('.I/
ivr Wol'il tnli;l>>t!ie|
k, I- of attonu'VtiM'U
.i.livciviltoC.iiclmll
lows ; '•lletwufli A.,j
unity. liiariii.v''lati',;
vi'o'man. of tlu'lirst
jiavt." TliriiiiKli'iiltl
of tho lirst l'.'-!. «-.ijj
■ lU'i'il was tlub >.«•[
uoy lifariiiL'ilatoUtliJ
Ml) A. \IM
■ai u |i->i, ,
■anting varty "' t i«l
rest iliil not iiibj hy
|,;,v/, ,^ (,•. n. ■>'.'i.
I had Ix'cn niaiU' the]
liil.l have het'ii wM
Vie of exa'Utum. /'J
nil his estate tlimia
ison deeeased, thou*
as A' ;»•-'!?■'""•. s''"
UMl
ESTATE.
1243
hiilaiuiary, 1841, B. devised to his dau^jliter, , oituveyance. It was not distinctly proved at
the wife of defendant, the land in iiiiestioii in the trial when T. died, nor wa.s it left to the
,■ . Ill ,liily following B. and the defendant
111 Ilia wife executed a deed, reciting the will,
!* ,1 bating that the [larties had mutually agreed
tl it tlie defemlant and his wife should come
mil the hind and jiosses.s and enjoy it without
lis heirs or
I licfeiidant and lii.s wife should
his wife in the niaiiiierdi
set out, tl
<li.l
assii'im,
ami
<crrie(
tliointernijitioiiot said 15..
a« h'lij; ■'I'* '
T|n. ilied then set out, that in eoiisiiK-ratioii of
tlii'\dll, and that !>. diil jmt defendant ami his
wile in iiossessioii, they had agreed to inaiiit.iiii
till' >,iid !'■■ ;nid lii'< wi'*' during tlii'ir natural
livi's ; and that if defendant .uid his wife should
Uii their a:;ivenieiit, then the land was to lic-
(iiiif the proiierty of the .said defendant ;iiid his
U\'. tlaii' l"''''^"'""' ••'^'''g"« forever. H. lived
with Mi\ was siqiiiorted liy defendant and iiis
.until liis wife ilie.l in IS47. He aftcr\e:irds
a"aiii. and in duly, KS.'iO, a few days
liisileith, made aiiothei- will revidiing all
ills, and diieeting his executors to sell
all hi* land, ami diviile trie lu'oeeeds ec|ually
j,,,,,,,;^ liis four daughters. !»i'feiidant had iiiaile
coiisi'lfi-ahle imiirovements on the farm during
hisiialliotiou :— llelcl, in ejeetm. nt hrcuiglit liy
oiRiif the four daughters, that the dcod passeil
iiiH'stateof iiiheritauce, and that nothing con-
ttiikilin it eoiild oiierate as an estii[iiiel on the
(levistts under the second will ; that it gave only
aniilittii oeeiipy until testator's death, with the
jssuWe that if the agreement were kept liy
(kidiiliiit and his w ife, he would make no .altera-
tii.niiilii-i lirst will. Thrnnji ct //,,■ v. Eiliiunnlx,
\i\\. 11. 33.
Quiirc, wiiether defendant, having kept the
coiiilitiiiu on his part, would have any remedy
avaiiist IS. s representative for breach of the
jj,Tifiiii.'nt. /'i.
will' 1
iitiriii'ii
^■Ii'
I'lpniii-i' ^"''
jury to lind whether he died liefore or after the
1st .lanuary, 18,VJ, when the 14 it l.'i \'ict. c. (i,
came into force, this point h.iviiig escaped atten-
tion If lie died liefolc, then the defendant
Would lie entitled, as elaiiiiing under his si.-.ter,
who wciiild lie 'i'.'s heiress; if after, the defeii-
support (hint Would lie entitled as his mothei', in prefer-
ence to his sister. A new tri il was theretore
ordered, with costs to aldde the event, in order
to gi\(; the idaintiir an opportunity of estahlisli-
ing his case mi this point. It.ilitl v. /'o/, VX (}.
\',.:m.
W here a jiarty claims as one <if the heirs of
the lialf-lilood of an intestate, and in his hill pro-
fesses to set out how his interest arises, it is
necessary for him to iiegati\e the fact of t'lu
intestate having olitaincd the land liy gift oi
dexisc from his ancestor ; or if he clid -■. olitain
it, the claimant liiust shew that he is of the liloo'l
of such ancestor. Triinii \. /'a r, l;i Chy. ,'{ll.
A testator, who owned lands in Ijigland and
Ontario in fee >iinple, de\ ised the same to his
will' for life, and after her decease ga\e and
dcviseil them unto his ••I'iglit heirs for ever:" —
llehl, that the 14 .V. I.". Viei. c. (i, ( '. S. V. ( '. e.
S-', under which defendants claimed to share in
the [iropcrty, did not apply, and therefore the
ehlest son took the estates here as in Hngland.
7'///., V. /;-(//, 11» C'hv. (101.
Held, also, that even if the Act <lid apply, the
coninion law heir was the jiarty to take the
estates under the words of this devise. /'/.
1. A
XIII
"liiill/< (111(1 I'rai'l ( (
HKin.
////;/v /i;l ((ltd
An action does not lie against
iiiiiiisiiii ''. .Me.Vrthur, 8 t'hv. 7-, remarked ,. , . .i,.,-,--
' I ,1 1 , ,■.,„.,,. (-1,' ..,,,,,, , 1.,,,;, I. .,1 simple contract delit of his ancestor.
:uul oveirilleo so tar as tnc same ilecnleo , ^ ,, ,, ,^ ..^.^
Ujnill,
tluttho right to piirclia.se contained in a lease of
laii4 w;i.< iiersiinaltv. Uii(rtli((ii v. (!((l/(i(il((-i; '2
Kyailecd of tru.st certain lands were eoii-
vtviil til trustees for the heiielit of an infant, to
wli .111 the trustees were to convey in fee on her
j inaiiiing twenty-one : — Held, that the infant
t«(ik :i vested interest : and the court directed
uitiii|uii'Y as to her pastand future niainteiiance.
Ulnniii V. (i7((.v;;(/(r, 15 I'hy. (io.S.
iliiciif the devisees of all estate sold her interest
I tlitriiii til her lnother, and executed with her
hiisliaml an iiistrumeiit in the form of a power
iiiattni'iwy, authorizing the assignee for his own
feiittit til ileiiiaiid and receive of .and from the
I exmitur, &e., all moneys which might heeonie
ilur ami jiayalile to her and her liushand, or
I t'tliiT III tlieiii, liy virtue of all devises and
li(i|ik>ts under the last will and testament of her
litiai. Ill fact she was then entitled to a share
I li aimthir lirother's portion of the estate liy
heir on the
/■'(•(■.•■(/t/i it
(il. V. //(«//, Dra. :i(l4.
The heir-at law is entitled to recover from ii
sheritl'the suridus of moneys arising fiom a sale
of his ancestor's land, on a Ii. fa. against those
: lailtls in the hands of the executors. lldJi'ilcs v.
\B(iki<', .SO. .S. .S47.
AVliere there is an adverse possession of land,
an heir-at law who has never entered, cannot
make a conveyance so as to eiiahle his vendee to
reeo\ er in ejectment. Doc d. ]>(.( m v. (Iraid,
ao. ,s. -)ii.
1
Held, tlitit an heir could not .sue on a covenant
I entered into with the ancestor, to convey land
' to him, his heirs and assigns, within a certain
time, the heir not lieing nientioiicd in the cove-
' iiant, and the hreach having taken place in the
! ancestor's lifetime. (/(Kida// v. ICliKib ii, K. T.,
4. Viet.
In this province (though not in Kngland), the
heir is only liable for the debts of his ancestor
s.v<i^iiiiKiit from him :— Held, that the iiistru- { on descent of lands. He is not liable for uii-
Imeiitluiil lint the eireet of transferring the share
lot till wife in the portion of the brother so
lastigiitil, Pkn-illv. Phei-rill, 10 Chy. 580.
XII. De.scent.
Kiitli iilaintiff and defendant claimed by deed
I from T.'s sister, the plaintiff having the first
litiuiilated damages -as, for instance, upon lus
ancestor's covenant for good title. VdiiKmKjh-
nett V. J{oM, 7 Q. B. '248.
Declaration, against defendants as heirs-at-law
of J. A. , who died seised of lands, on a coveu. nt
of J. A. to pay inonej', averring that there is no
personal representative of J. A. The defendants
pleaded rieus per descent. The plaintiffs replied
ii
1243
ESTATE.
12U
th, ■
that the equity of redemption in fee of the said tliat the right to juirchase contniiipil
lands, Rulijt'i't to n certain mortgage to A. H., [ was personalty. Such riglit goi^ t
descended oil defcnihiiits. On deninrrer; Hehl, at law, not to the ]icrsonal n'presciit.itivi>, (,„ .i
insiilhcicnt, tor not shewing legal assets iiidefen- death of the lessee', //iiiri/nni v. '.'.i//,i,,/„ . ,,
dants. ///////-■(/ V. J,v/,/»m/ (7 ((/., lUC. 1'. ;«!». K. * A. .S.SH.
The lialiility of lands fcir delits under fideo.
II. e. 7, is not : ll'i'i'ted liy the death of the
dehtor. He, or his heir or devisee iiftcr his
ileatli, nriy st'll or convey to a lion:'i (idc piir-
chaser for value, at any tinii! Iiefort' judgment
lias lieeii eiitend :igiiiiist him or his iiciMiiiial
repre.-<eiit:itivis, or execution against laiiils issued
n]ion it ; and sucii purcliaser will have a good j
title as against creditors I.eviscoiite c. |)oil,iiid. '
17 >). I?. 4It7, remarked upon, /'di/ v. Millir,
•_>4(.). |{. (ilO.
For the purpnses of an execution against lauds,
heirs arc piiiiia facie liouiul liy a jiidgineiit
against the executor or aduiinistratoi' of tlieir
ancestor, in tlic -<aiiie way as next of kin are
hound ; and alth(illgh tlieyare not entitled as of
course to have the issues tried over again, still
it is open to tiieiii to shew not only fraud and
colliisinii, lint that the judgment or ileciee,
thongii proper against the defeiuhint, was in
resjiect of a matter for which the heirs were not
lialile. I.<,i:lly. HihM.n, I'.X'hy. -JiSO.
Heirs, hciiig also next of kin, wlio had licuii
jiarties to tlic contiiniing of the Imsiiiess of the
deceased with his assets and those of his partner,
Were held precludi'd from ohjeeting to iiaymcnt
liy the estate of the losses incurred in eontinning
the lmsine.«s. //>.
A patent was issued piirjiortiiig to unmt 1„|J
to 11 as a diiughter of a l'. K. l.o\alist. Imt |{
had died six months ]irevioiisly": Kd,!^ .i'^
patent lieiiig alisolutely void, that the liiiro.nU
not tile a liill to set asidi^ a coiu'evMiice i
under a pow(5r of attorney from j',. ;ii|,
have heeii forged, i'miisc v. (.'riim, U(|,
V '-lltfll
:"1 til
IV. li"
XW. ( 'ovi;s.\si' To Siamp Sn/iii
111 cjectliient. tlic plailitilf elaiiiie.! uinkr j
sealed iie-trnmeiit executed in liis taNmu' liv nne
M., and witnessing that in consideratieii iif"|,rii,t
indehteiliiess for iirofcssional serv i<(>, ainl i,
secure the plaiiititl for future ser\ ici-s nt tin
same kind, mul n/ llif .iinii of C'J.'i ah'<iiilv iiiid
and advanced hy plaiiititl' to liiin, \c , |j,., \[
covenanted, granted, and agreed tliat lie wduH
.<Uiiiil .•'I iiit'il null iiiis.tr.txid ,,i' III, liiiiil ;/,./((,.,/,„„
Id /III' iisi- <;/' the plaiiititl, Ills heirs ami assiiiiis
''.'/ "'".'/ iij' i-hiii-iji , .tirnrilii, mill niiirlijiiii, mi tlif
land for said moneys and costs; and wlnn t|it
idaintitl's costs were taxed, he \\as to lieatlili.
erty to hidd the instrument as and liy w.iVdi a
cliiiri/i-, nior/iiiii/i, and security upon t lie l.iinl ('.,)■
till uiiiiiinit .111 III III' ii<i-irtiiih' il. Ill M. wiiiijil'
and he covenanted that lie or his heirs Mniijil'
on demand, execute a good and siilli,i|.|it in"n-
gage in law, with har of doMir if iitass.irv,
and usual covenants, &e. : llehi, that tlit in-
strument could only ojierate under tlic Statiit.
of l'.ses, as liciiig granted on a iiuiiiey uunsi4f
ration, which aiiiieared friPiii the ex|in'ss iidt:d<
contained in it; and, Semlile, tliat lull ctlut
would he given to the whole instiiuiKlit. .iiiij
the real intent of the jiarties einiiil mit l.y
liolding that it was to operate as a ch.-ii-;;!', •.ciii-
rity, and mortgage in eiputy mi the land, until
idaintitl's claim was asceitaiiied iiy taxali.iii,
and so continue as an ei)iiital)le cliaiire imlcs.^
the pl.-iiiititf desired a Icg.il inortga-e.'uhiiliiii
that case, M. coViiiaiiteil to execute. l,lll;iR'.
whether the plailitiir took the legal estate .so :«
to eiiahle him to maintain ejectment, il'ilhrs.
V. .V)<.l.
'1. Otlit r Cn^rii.
If on the death of a tenant at will his heii'
enter, such entry is tortious ; and if the heir
die, and his heir enter, the original owner or
his heir will he jiut to his action. Jfnr d. Monk
V. Hiiijiiii, \\ ( ». S. 488.
The lieir-atd:vw can convey land descended to
him, hcforc ho enters. Dm d. Sjiiiil'nril v. /iniil.i'ii-
rill ill', 1 (.,'. r. 4!t2.
Although the nuniher of persons in this coun-
try in the position of expectant heirs and rever-
sioners is Imt small, still the same rule aiiplics
here as in Knglaiid ; tlic principle of the doctrine
heing, that such persons need to lie protected '**''"''"'•. 17 (
against the consequences of their own imiirovi-
dence in ilealing with designing men. Miiri'ijv. I
Till till, (J (;hy. i7i;. I
The eldest son and heir-at-law of a person I
who had in his lifetime ai'reed for the purclia.se
of land from the Canada Company, left this
country without in any manner attemiiting to
complete the purchase. The other children of the
jinrchascr jiaid the halance of purchase money
due on the land, and sold it in portions to three
several purchasers. In a suit hrought in the name
of the .several purchasers against their vendors
and Canada Company, it appeared that the heir-
at-law had not heen heard of for upwards of [;; f.;^;i;■V^,;";x^,|\".^„^'■y '.Zii^.f^^
tweuty-tive years. The court, under the circum- ^^^„Hld not avail : that the cxchage iinist he imwl
stances, ordered the conveyance of the several , ,„ jmiper technical form, and liv deed, and that
portions to the purchasers without recpiiring any i the demandant Wivs therefore entitled tasiicrwl.
administration of the estate of the heir-at-law, : 'J\,iri<li!i/ v. Smith 1'2 Q. H. ."i.Vi.
the Canada Comisany not ohjeeting thereto. ; ,,., . , ^.i t c 4. i .,„
„ ,,,,, ., '■ "V. . \ r'\ Kw I \\ here in dower the defence rested uimii an
JiuriDi V. I lie Canada Cuiinxtni, 7 (.iUy. 5ai. 1, , , 1 j.i 1 1 1 ,■ .. *i, .Vi.m.u
•' ■" •' j alleged exchange by the husband ter iithiTlaiKis
Simpson v. McArthur, 8 Chy. 72, remarked , out of which the widow hail been .s.itistied her
upon, and overnilecl so far as the same decided • dower, and no deeds were produced, aiul the only
.\V. Kxiii.vNci; (i|- Lands.
I. < li iiiriilhi.
Dower. Pica, that the hii-.l)aiid esdian.'i'il
other lands with one V. fortlie l.inds iiii|iiesti"U,
and that the demandant elected tn he eiidnwiil
of such other lands. To prove this e\ili.iii!.v,
an ordiiuwy deed of bargain and salent thenthir
lands was produced, cxeeiltiil by deiiiaiidiiiit's
husband, for an expressed cnnsideiatieiinl I'liiKl;
and it was shewn clearly by ]iai'id evidence that
the tran.saction between R and the hnshaiid was ,
T' )T
12U
nntninoil in a i,,,,^
t «'"■•< ti. tlhli,,',.
nivsciitativiM.iiti,,
inn V. ti'iillihjLf .1
'l-tili;,' tdv'i'aiit l;,i|,l
K. LnVillist, Kut h
, tllilt till' llcir lnll|,l
IlllVl'VillKVCVuilUil
from r,. alkiiul t„
I Crniii, UCIiv. r,"
'■|.\Mi Sll/lli,
ill' rlaillU'l llljiU! ;i
ill liis l':i\iiui' liy .111^.
iiiisiiicriitimi (if |in„,
:il N(;rvi(cs, ami t.i
Mirc si'r\iia'> i.f till-
pf C2'i alnailv |ia4
t(i iiiiii. \i.. r,r. M.,
<,'rcf.i that lie «,,i,|,l
IIk litiiil ill i/i(i,./ii,i,
li.-i heirs anil as>i;'iis,
III'/ liiurlifini: nil tlif
;(iNts ; ainl wluinln;
lu' was Xu lio at lili-
as ami liy way "I u |
ity iilHiii 1ln' laiiil r..r
llilnil, lir M. HnllM;
e or Ills lu'lis wniiM,
ami -iulliiai-iit iiiHi-t-
lldWtT il IH•l'l■^s:lrv,
- IIlIiI, that till' lii-
tu lllick'r thf Statute
111! a nullify unlisjilt-
II tin' I'Xiiriss riritah
ilih', that full cllrtt
inlr iii>tniimiit. .iiiil
ftii's i-ari'iiil lint l.y
,it(: as a chaivi', nrll-
ty nil tlK- lanil, until
taiiail liy taxati.iii.
italilo chaiw inili'ss
liKiftiiam', ulmli ill
I cMMiltr. Ijliiaiv,
ic lt;L.'al istatf .«o :«
jcctllR'llt. J/("f/'V.
[ir l.AMis.
i-liaiiil lAi'liaii.'i'il
laials iiHiUfstiiiii.
■Ctl'll til llL- I'llllliMtll
riivf this rxfliaii!.'!.'.
land sak'nt tli.'iitluf
liy ilriiiaiiilai!t's
llisiili'l'atiiiiiiit O'llld;
jianil (■\iiu'iia' that
luil the hiisliamh™
that slirll fviili'lia'
liagi' iiiiist liujiliivfil
Il hy ilfid, ami that
ontitltil t'.isuawl
Ico ivsteil iilMiii all ,
lliiml fiiriithcrlaiiiU j
, been satislieil lier ;
Iduceil, aiultheoiilyi
UM5
ESTATE.
124G
■iiliiui'li"' t''" ilefence consisteil nf pivnil Htatu-
' .iun that the liuslmnil liail " triuleil" eertain
H<hl. tliei'o wan not eviili'me to warrant
tiiiilini.' for tlui ilefemhuit. Slnil'iinl v.
('. r. 41.
lainl*
a jury '"
■frii'iii'iii' ''
ll.nvtT. Sei'oml Jih^d. that ilnriiij,' the niar-
.fc the hiisliinil a>,'riMMi with one I». (o v\-
•I mi!!' the laiiiis in c|iifstioii « ith otlnr l.imls,
liMniiiNiialiie thereof, thev 1>V ileeils conveveil
mill 1" 1 .1 I %■ ' * • 1- 1 • "i
tl ■ luluN to each other. D. s wite haniiiL; her
liwir; th it tlie ileiiiamlint afterwanls eleeteil
tiitiki' lii'r iliiwer ill theother lain), ami liydinul
.i|.is,il the same to one ( '. : lleM, jilea liail,
., ||,,t >lii'«iii^' stiietly an exelian;.'e of the lainls,
f r till' ""'''• '■'""■'.'' ''•'"* ""t the same elleet ;
ill Niiihle, no other word ean lie siihstitiited.
i',';iv.A''''''X -'*<.»• I'-- I-'!'-
"■wii IK'i'i""'^' ''•'^''' I'oxsessed of a lot of laml,
,,,rc,'il til exchange lots : that eaeh shoniil have
tK*iMi«iiiii iif the other's lot from a day nanieil.
Lltiuittliey should exehange Lfood and snllieieiit
\.„\s ill iiiie year from the date of the lioiid,
I ^..^^.]•, i.Mve the other a liond with a pen dty
(iiiiilltiiiiifd to |ieiform the •onditions almve.
Thi' vo.irela|iseil without either giving a deed.
ViNiii ('iwtiiieiit lii'oiiglit for the lot wliieli the
iihiiititf was to convey to the defendiint : Held,
thit a ili'iiiaiid of possession of the iiremiscs
wjs lu'oci'saiy. and iirolialily .dso that the jil lin-
tiff >lii'iiM "ill'''- '' ""* "I't'i'ill.v P^'i' "1'. I'osses-
girni "1 ili'I'elid lilt's lot, which he (iiLiintiH')
(nYiniii'il under the agreeinelit. I'l rrilt v. .1 nmlil,
IC.P. 113.
Ml txcliam;e of lands liy an infant is not
oiil. Imt viiidahle only, and as sneli m ly lie
j Milrrt'l valid hy acts of I'oiitinnation. "Where,
ItttMi'iv. a jiarty saiil to have lieon under age
laBiliiitiixieated wlu^ii ho made an exchange of
jlauls oi'iitiiiiied. after coming of age. in ])ossus-
lit the iirii)icrt,y received in exiliaiige, and
[aitrtwarils sold or exchanged it for other jiro
p;rty, it was euiisidered smdi a eontirmation as
kmdthiise elainiiiig under him from imiieaeh-
I ill! tlio traiisaetimi. Milli r v. Oxlnimlrr, ]•*
|ciiy.:U!l.
J. awl S., the owners of two distinot parcels
|(ii bml, agreed to exchange the one for the other.
ilaiiil was subject to a mortgage, which be
I jiTfid tn pay lilt', but did not ; and .1. was eom-
Itlkd til ivileeiii the same: Held, that . I. was
leLtithil til a lien on the land conveyed by liiiii
ItiiS.. as fur miiiaid jiiireliaso money, for the
luiiimiit iiaid to redeem the mortgage. Si mi/ v.
iPw-K I'jchv. :m.
Thr [ilaiiitilV and defendant agreed to an ex-
I change (if lands, the plaintitl' conveying 100 acres
lin R. iiimn which there wa.s a mortgage for
Hl.OT, ami the defendant agreeing to convey to
Itliciiliiiitirt' vhiehever of two lots - one in T.
ItheiithcriiiS, -he should select; in the event
lof liissiliotiiig the latter, it was to be assigned
itohira, siiliject to the jiaynieiit of B\f)0 in four
I ti|U3l amiiial instalments, with interest at seven
Ifcriviit. The pkintiff .selected the latter, but
I it aii|R;:ireil that the defeuilant h.'Vil not j'et ob-
Itainnl a title thereto, although he w.as in a posi-
Itiiiii U ill for a jiatent from the crown on
jBiikiM: attain p,aynients, and which he pro-
jtari'ii the day the cause wivs heard. The court,
jMtheilefemlaiit had all alonjr had a title to the
Ikt, anil Wits at the time in a position to carry
I out his part of the agreer.tent, and submitted to
I do HO. directed that the luract should lie com-
pleted by conveyance '•! the lot in S., ami that
the time for p.iymeiit of the !*1.")<) should date
from the heariiij.', from which time also the in-
terest should In m|iuted, but refused to givo
to either piitv the costs of the litinatioii. linn/
V. Hi IS,,,; I.-, (hy. •_'0.-. ; 1(1 Chy. (114.
The .Settled ['.states .Acts do not anthori/e the
court ill sanctioning an exchaiiye of the lands of
an inf .lit cestui ipie trust : but when in siudi a
casi' it can be shewn that a part of the property
of the iiif.int is exposed to di'preeiatioii if tho
|iro]iosed exeli inge be not i ll'ected, the court
may order the same to be carried out under tho
|irovisions of sec. ."lO of cli. \'H'. S. V. ( '. lin
/li.~/ii,j„ii/:, -Jl (.'hy. .").S!I.
-W'l. Mlsri;i.i.ANKi)rs ('.\sKh.
A., the owner of (crtain lands, conveyed to
the pl.iiiitill' by deed, « liieli was never reenrded ;
the plaiiitiir conviyed to others, who icgistcioil
their deeds ; the delcndaiit, .V.'s son and lieir-
at law, siibsei|iieiitly rch'.ised to ,S. , whiidi wa«
also recorded ; the defendant h.id never been in
jiossessioii. lilitthe jiersoiis to whom the plaintitl'
conveyed Were. The plaintitl sued defendant
for the peii.alty under ."•_' Hen. \'lll. c. !», for
.selling a iircteiided right : Held, that tlie 14 &
1.") \"ut. 0. 7, Wduld not ajijily in defendant's
favour, for th.it only allows the sale of a right
of entry, and as bis fathi'i's deed w.is binding
lljion him, he had no sneli right. /Inh,/ i|, t. V.
Wilts,,,,, \:u). n. :>:u.
In ejectment, it appealed that ( '. died in bS.")!,
seized of an iinex|iired teini of years in the laml,
intestate, and leaving an only son, ^1,, who re-
mained in jiossession. and on his "'.atb, in bS.",
devised it to his uncle .1. I> " life, and theiieo
to the id.iintill', testator's (diihi. .M. I)., another
uncle of the testator, was a)i]iointed executor.
He saw .1. |). ill possession .iftev M.'s death, and
was himstdf living on the place, but in IS.'iS, ho,
as exeoutor, eonveyeil the term to one F. ; anil
afterwards in ISdO, .1. 1>. administerod to ( '.'s
ost.ite. and as such administrator, assigiieil his
interest to !•'., nndorwhoni cb'fendant claimed.
The court being left to draw the same inferences
as a jury, .'iiid the defeiid.iiit's claim a)>pcaring
to be dishonest: — Held, that the plaintitl must
succeed : that on the do:itli <if < '., her only child,
yi., remaining in ]iossession, bociini! entitled,
so that ■!. 1>.'-- <\i:cA as administrator convoyed
nothing: that there was sntlieieiit evidence to
infer an assent by M.'s execiitnr to tho bo(|iiest
to .1. |)., which would extend to the subsei[Uciit
devise to the ]ilaiiitill'. and that his conveyance
as executor was therefoie inoper:itive. Tiitlmn
V. /.'-(/////. -M «^). B. •2U>.
In an action for dist'' 'iiiing when no rent was
due. it apjioiired that one of the clefondants as-
signed cert ill rent to a co-defendant, who gave
the tenant i lintiil') notice :- Hold, that such an
assignment eonferred an estate, ami that under 4
Anno c. 1(), ss. Hand 10, the .-issignoe was entitled
to I
tena
P. 52.
A bill was tiled in respect of certain timber
limits by two of the devisees and legatees of the
original licensee thereof ; — Held, that the suit
ought to 1)0 by the personal rei)re8eutative, and
ItllV. 1^. I^'f Ot3. ('(VIKt *!■') LIIV Hi-"!-" 1^1 !*-■*- 'I n>3 ^. tll'iv^wi,
i distrain for tho rent in ijuestion, whether the
nant attorned or not. JIo/k' v. Wliilf, 17 C.
i
i Mi!
A:>i
r€TI:
ni
1247
ESTOrrEL.
I2t,^
a (li'iiiiirrur to tlic lull, on thi' groiiml tlmt it wivs I
not MO conntituti!(l, \vii« hUowimI. liniiut v. '
O'Jfnirii, l.jfhy. ;«t(i.
( )ni! of seviTiil lu'ii'M of nil iiitcHtati; luiii^
liiiiJitii', .■111 Act of l',irli:uii(iit was )iiii(iiiim1
niitlioiiziiii; till' sail' of the iiitcstatt's laiiiln, ami
tlic iiivistimiit ol till' liiiiatii'M Mliarc in (iovfi-ii
iiii'iit si'iiii'itii8 or iiiortj;a),'i'M 'or tlii' lit'iiulit of
till' liiuatiL' '•aiiil lii.i rf|iii'niiitativi:i. " 'I'Iil-
liinatit' aiti'TwanlH ilicil ; ami in a (iroi'i't'diiij^ to
(llstril)iiti' liis .-iliaii', it \va> llilil, that this sliari',
for tliu |iiiriiosi.'s of iliMtriliiitioii, ri'tanii'il tlu'
fliaru'ti'r oi roalty, ami was to ln' iliviilcd lic-
twiin his ii'al ri.'itn'S(.'iitativt'.s ami not his next
tif kill. <'< I III III I'll. V. Ctiiiijih. II, 1!) Chy. L'.">4.
I'lS'l'Ol'j'Kl-.
I. V<\ |)i;i:i>.
I. /)// H Ill-Ill imi III- .[ri'i ji/iliiri- nf I h iih
III- < 'iilirrlllllli'i .1, l"2-(S.
'2. K^lllll III/ h':^lll/l/li I.
(a) Ciiiii-i i/inii-i liii'ui-i /..l.</^ ni' /'ii/i nf,
iL'.vi.
(li) n//iii- Cil,:,.:, I'.'.V).
:<. It, rill 1 1.1, 1 •_>,-.,-,.
4. /tmi/il.i mull I- ,Si III, Il'.'iC).
."). /'iii-liii mill Pririi .1, ]'2'u.
11. Is Pais.
1. '/"lllr III /'l-li/il rli/.
(,■1) diiiiih, I'J,V.».
(h) Liiii,l.i, l-_>()4.
'2. /I'li'i ii-liii/ III- iiU'hui II III i-i Ijil fill- 1 1'liiiil.t,
l-JliS.
.^. li'ill.i nf h'.ri-liitinii nnil J'ruiiii-noi-i/
.Xi.'ii.i, |-_'7().
4. Ciii-jiiii'iiliiiiix, li!71.
r». 111 riliilinii III Minih-iiiiil Ell I'l'iiiin, \'1~'2.
{>. I'iiuiii.<. I-273.
7. I'lilii/iliiiii'Oilii-iiil Ai-iiiirA /i/iiiiiii nil Ills,
\-2i:i:
8. Aijiiiiitl ilini/iiKj Lliiliilili/, l'J7o.
i(. //( Ai-linliK iIijiIiiikI Sill i-iff Jill- J-'iiIm
Hi'liini, A-i-,, \'2'i'<.
10. Olhii- CiiKin, l-_'7ii.
11. />'// Airiril - Si I- AlililTlJATloS AND
AWAltl).
JII. Bv 1;k( iiiii).
1. Jlif I'l rilii-l or Jiiihinii III.
(a) (•'■■iKi-iilfi/ — .SV<.' Jrixi.MENT.
(b) //( Eji'i-lliKllt—Sii- KjEirMENT.
IV. I-AcEPnoNS, V2~Vi.
V. Pl.KADI.S.J, 1281. '
VI. K.sTdi'i'F.i, AND Waiver in Mattei!.'^ he
I'KArricE — SVc PRArTR'E AT Law —
Waiver.
VII. AiiAiNsT Di.si'iriNi; Title bv Oekek to
FuKfiiAsE — Si'e Ejectment.
VIII. Art Betwee.v Landlord and Tenant —
See Landlord and Tenant.
, I. Hv I»eei>.
I. lijl E.i-i'nit'iiiii III- Ari-i/itiiiii-i ii/' /),,,i^
I'llllllll'IH,
WIht.' a fatliiT, iiitcmliny in tlu' cli>tnl,iiti„
'"• '■•„
.if his property to givi; his.s""oii nM)ari'i.s',!f'i',|'|?
was imliui'd liy tin.' son to I'Xclriiig,. t|i:it |:,||,|('
thf iiropi'rty of a stniigfr, tin' tatlin- ',,;,„"!
C I •.'.") for siuh cxi'hati;,'!', and the ,,,ii iif,,'iii,j,'
to ii'iiiiy it, so that it iiiif;lit '^n m tlif ,|i,t.|l„^
tioii to tliu ri'st ot till' laiiiily ; an,! the iiitli.
tlu'ii for a noininal I'oiisidi'ra'tion, fdnvrvnl I,'
till' son tin: land ri'ci'ivi'd in "'Xcliaii.;,. : ' ||„l,i'
that till' oxi'i'iitors of tlif fatlifr iiii;,rl~t luiiint™
an iii'tion against the son tor tlif CI'.'.', a^ m,,,,,,. i
jiaid to hisusi' ; and that tliry wcit m.t v^u^l:',]
liy the I'oiisidcr.'ition stiti'd in tin. di-cii
lii-iili' il III. V. I'lii-iiill, 4 (». .S. |,vj.
Where A., liaviii;; only a Loud f,,,. ,, ,i^.j,,|^ ,
not having paid all the |pui'cli;i.si. nn.m.v,',',,!,.
veyed ill fee to J5. ami dieil, and 11. \vi.'nt |||t,i
posse.ssioii and eontiini.'.l for several \i:ii<, «||,,|, i
ill in. I
that thJ
J/-.
to liiniself from the olili^or
adiiiinistiator hv making iisi
.A.'s adiiiinistrator ohtaiiied ii eniiv, V.'iih'i' m i
Wvv ■ '"■
. . , , ' 'II'- 'IWlWili
guilty ot a triiml, ami tli.'it his title iiiukr it
could not prevail against |',. Ma'aiil.iv. .1., .|i>,
J)iii d. Diiliii V. I'll mil ili/i, ."ill. S. S.'i.
Aco\eii.ant in a deed profe.s.siii;^ tn l,i. maile
jointly liy hiisliaiid and wife, hut e.'^riiiti.i I'uly
by the Imsliand, is not siillieient tn wmk .iiu*.
tojijiel. I>iiid. Tiffiiiiii \. .l/'''V(i/i, M. T. I Vjit I
Where a father hail eonveyeil a lioibu aidl
premises to his son in fee, and tlie sun uftir.j
wards made a lease to Ids t'.ither .iinl innthir i„r|
their joint lives, at a iioniiiial rent, ;iii.l mi tlief
same day the father ;md niotlni- eNc'tiitnlaiil
agreement under seal to the sun tliat lie sli„iill|
oeeiipy the house, e.\i'e])t eertiili riiiiiii.< in itj
and take the rents and prolits of the lainl m,!A
certain conditions, on hreaeli of any "i hIikIiI
he was to go out of possession, hut tliu iiiiitlierl
did not release her right under the .statntt':
Seiiihle, that the mother could iidt, .■it'ttr fhel
father's death, on the ground that <ln.' Ii:ul ii^.tl
liarred her frechidd interest under the lilr ka>f,|
maintain ejectment for the whole of the juviiiiseji
without shewing a forfi'iture of the .■ij;iveiiidit|
by breach of the conditions, .•ilthnii.h
entitled to recover the rooms wliirh weie «•!
cepted from thesoii'soeeupatioii under the ;i;r«-I
meiit. /)'/<' il. I'li-k- V. I'li-lc, 1 (,». !;. 4'.'.
( 'onstriictiou of a deed in peculiar tenii>. vA\
out in this case, as to its opcraticiii hv est"i'i»l.|
Dill' A. PiiiiKilli V. rii/iiiilir, 4 (,». !!. 101.
A sherirt's deed, being but a cimijileticiii ni lliel
sale, is only good for land actually sdld ; a iiartyf
therefore is not estopped by sueli a deeil irmiij
proving by parol that iioitions of thelanil tli-rdi^
described as sold were not in faet iiieluilnlinj
the sale. />iii- d. Milln- v. Tifimi/, ."i (,i. li. 'I'X
The grantee, by t.ikiiig a title fmin theOTn.]
tor, does not estop himself from denying that liif
grantor was legallv seised. Iiiilriik \. in'n:iii»t\
1 Q. K 448.
Held, that the aeceptiuice of a ileeil "i Im
from the reversioner in fee did imt et itsclfl
acknowledge any present right "r iiitcri'st '4
such reversioner. Wilkiiiduii d al. v. t'«/iWi», llf
C. P. 211.
1211
Ui^
ESTOPI'EL
llV)0
( <;/' />tiil.i ,!,■ (■„„,
ill tlic ili>triliiit;„,
II |(M)il(r,.H .l[ 1;||,,|^
li:ili^;r tint Lii'li-i
the father myuij I
I till' ■•I 111 iir.iiiihiiij
ii" 111 the ilistnlm.
ily : mid tlie inthrr I
Mtimi, ci.nviy,,! t,,]
I'XrIi iii-i' : " H'W,
^luT iiiifilit iiiiiiiitaiui
the Cl'.'."i a- iimiKyl
'V WCIT ll.it ,-.t..i.|,^'l
ill tln' iltnl. ■■
S. l.VJ.
xilid lur a ilecil, ;iiiil
ll'clrisc iiiiiiiiT, iviii.
I, iiml IV wunt iiiLi I
• suVfiMl uar<, wlunj
a ociuvryaiin' iiitVej
ir: -Hclil. tiiiit thfl
tse lit' tiie iliT.hv.isI
it liis title iiiuKr itl
Ma.'aiilav. .I.,,1k..|
."» ( I. S. ,S,V
niffs.-iinK tn \iv inailel
tV, Imt I'Xrellte'l 'ijilyl
lii'iciit til wiirk aiiM-f
/WVm„.M.T. IVid
livi'Veil a Innbe ainll
c, anil tlir sun iii'tor'|
'atlu'i' and inntlitT l"r|
inal I'l'iit, and m tki
niutiiiT eXfi-'iitohnl
e Mill tliat ill' shmiHl
certain i lus in itT
ilits ill' till' land ui»inl
aril ill' any "I «liiili|
dull, Imt tliu iiiiitlierl
uiiili'r the statutf;
1-1 mill iiiit, al'tt-r tliel
mil tliat die liul ii"t|
t iiiidfV till- liiv Icm
wliidfiil' till' in'iui'iil
|uiv ill' tliL- a;;ri'i.iiidit|
s, altlimi-li >lii/ «.ii
mis wliiili «fiv tvl
III imi UlldlTtlliaiiM-l
1 <>'.
uliar term*, xtl
n-ratiiiii iiy I'stiii'if
t <■».
101.
lit a I'liiiiili'tii'ii
! tliel
i-tuallvsiild; aiurtyj
1 liy siii'li a 1
IS 111' till
It in fai't iiK
li'uil iriit
liiilid id
I'li'U
A (.1.
title fmnitlifiranj
Ifriilii deliyilii-'tliatliif
if a dt"
lit I:lllil
L.o .lid imt 111 it-*tj
I right iir intcrt'st 4
ll,lil, iiiiil''i' till' Hpi-'fiftl fiU'tx iif tliiM I'lisc, th;it lunl tlic ilcfcinlaiit ami IiIh wifi-, I'Xcciiti'il u liccil
|ili, iilaiiititl' «'i'' 'i"t '■'<'"l'l"''l 'ly liit i».-iMi;,'iiiiii'iit ri'eitin;; the will, ami stating that tin- (laitius
tk Hi"'!*"' 'iT^'' ''"''"'''• ''' treat iiii{thinf hail iniitiiaily agreed that the ilel'einlaiit and his
Ifltiii
I l«rt)''
laiits as ^iiiltv I't a eiiuversinii iil Ins jiiii
I'mil'
.'/'' .'/ ^'
\ilftliiratiiill ill enveliaiit stated that, liy ii
will
lid
me ii|iiiii tlie land, and Indd, ami
elijiiy It, Ultlmllt the iiil« 1 1 Ulitlull
deiilil lit
hiiii till' sail
It.
lis hi ii-i iir assi;.'ns, as lull'.; iiH
(■utiire iiiai
lietweell thr \
l.iilititl's
I di'leli- *'"' difilldllll and his wife shmild sll|ilinrt t
dailt», tile lillilitills dellll^rd to the del'elidailts
Itbi'tnll^ Hiltliuri/ed l>y 1 iw tn lie I'eeeived il|iiiii
jj.^.ft;iiiitiirniiike mad, tm- tin' term iif iiiie ye.ir ;
tjutilililld'i'if" enViliaiited tii pay a eertaiii rent
d I
Ins Wl!e
III tl
III inner
ill'
■|'l
thel
I set iillt, til it ill I'lillsiih'IMtliill III
the will, and that the said I!, did put the defeii-
d.lllt and his wife in pussrs-sinli, they hid .i;:ri'eil
I tlwri'tiii'
th.it
liy virtue nt san
I d.
In iiiiintain the sai
I I!
Ills Wll
diiri
IILT their
till' ililelidaiits entered and wen
1 1 I'l
itni'.'il livi
Mill ti'nii.
iHdil.'iii'
eil iriiiii 1
jktlii'irex|ir
itiuV tk' iii'ii-
Itre.'iell, lliill p.iyineiit Iif the rent :
iiiiirivr, that difeiid.ints were estn
W lie sill
W'.'ls tn
d k
d that if the defeiidaiit and his
lent, till II till' 1 iinl
P their ai'leeii
line tin
leiiviliL.' the deiiiise, and were
iimiiil
ilaiit and his wife, their heir^
rtv iif the said defeii-
d
iiasitriis Inr-
■ss eiiveliant tn
lay
tl
le rent ;
ever. I!, lived with ;ni 1 was siiiiiHirted liv tliu
•xeeiltiiill liy tlic lessnrs
|(leftiii.-i;.
.1/
I//1 "'(/«/
/ i'liiiuril lit' /■',
iih'tmr
\sr,
ii.'iiit
M
aiii
Ills wile nil
til
Ills will' died III
e alterwards iiiiriiei
Mill,
mil III
tw llll'l
I A'l'liiK.li'iii V
( •hisl
mil.
<.i •.>. li. .Si;,
•Inly, jS.'iO, a few days liifnii' his d.atli, liride
A., the pnti'li
tt'o of lot I'.', in till' seeimd
aniitlier wil
revidiiii'' all funnel
d
Ic(»<|i>ll 111
f I!
died
inte.state liefnre |,S|;{, ,|i,.i,|,, f,,^. ,.
1>..,t. .>f .I.,.,- I!,' ,,....,.. . I
lil'ietiii'^' his exeeiitnis tn sell all his land, and
kjviii.'ilefeiidaiit H. his heir-at law . I'.y imieii- ,|,||.rlit
iii'eeil.." ei
licariii'.'
..' date l-Jth .sJepteinlier, |.S4:(, def
Del'.
i|n.illy am
idaiit had made
ItllR' Ik'
[tlin! H, "itliiiiit liaviiia entered .m saiil lot, in
Icdii-iiKratiiiii that the les.snr ui the pl.iiiitill' had
— ii'imtlrit tlie intestate (the nriiiinal loeatee nf
■thcliiti liad lial'U.'iined and snld tn him the said
Jut.:lllil iii'ii! il' eiillsideratinll nf ."is., enliVeyed
(till Slid lessor nf the plaiiitill' the s.iid liit ill
Ik. Tlii.1 indenture wa.s registered nn the ,'liil
I .Iiiui'. iN'iO. By iiiileiitnre. made "Jlst .laii-
l»:^■. l!v(l, lii'tween the defendant \'t. .ind mie
nil. then ill pnssussinii nf the iinrtli half of
e iiiil lilt, tlie sai.l Brnwii, fur the eniisi.ler-
tinnsnu'iitiiiiied, liiul siirreiidereil and assigne.l '
tsliiluiirlh half tn defendant H. 'This ilidell-
en.i.'i rei,'istel'i'il nil the L'dtli I'Vdiriiary, IS.'iO.
III. lie twii several indentures hearing date 21st
.Ijiiuary, KS.'iO, lietweeii dufeii.lant l>. and
leienluitsC. and i)., ivspeetively, it \va.s wit-
«wl, thittiie defendant H. ennveyed tn ilefeii-
iitjC. and I)., respeetively, the sniith half nf
l"t. viz., ."lO aei'es nf the .said simtli half tn
fc'h "I till' said ilefeii.laiits ('. and D. ; ami said
leMiilaiits ( '. and l>. sever.illyiniirtgage.ltliejirii-
Isrly iiilivuyed tn them severally hy sai.l defeli-
ll:t It. Tlle.se indentures Were registered nil the
iFi'lii'iiiry, IS.'iO. It apjieared that twelve i
ear- silk''..', a man iiained \V. wa.s in possi's.sinn nf ■
pint. I'lainiin,' under niie (iidenii liiilli.s : that [
itlcvil III lt,U'j,'aiii and .sale nf the hit existed (Imt
k»iiiit|ii'iMliioe.l .ir proved), ,a.s from the patentee
tills; tlut im the I 1th nf Oetnher, KS'W.,
illij I'Xe.'UtL'd a eiiuveyaiiee in fee nf the lot tn j
f. whidi was reyistere.l nn the 'Jdlh I'V'lirtfiry,
p; that im the ISthnf Mareh, 18-H, W. e.x'e- '
lauiiivey.UR'e tn ( I. Hr.iwii,\vliieli was i'egi.s-
Vil th'-' siiiie day ; tint Brnwii cniitiiiued in
ssiiiniif the iinrtli half ever since, and that !
lldiilaiits ('. and 1>. entered into possession of
Jesi'Uth half under liiin : Held, that ilefen.lant
Uis I'Stiipiied fi'nin disimtiiig the title of hi«
•ni liargaiiiee a;.'ainst his own deed ; .and iis to
« smith half, the defemlants C. and I), being
ktl-'il fnini .lisimting his title as luort^Mgee,
Pt aki e.st.ipiicl from .lisputing the title of
Itssiir iif the ]ilaiiititt' claiming under a deed
nihini^ Doi d.Sjiaforil y. Brmb'iindijc itnL,
ii'Ji>im,uy, 1841, B. made his will, devising
[his ilaiighter, the wife of the defendant, the
I uiiiueation in fee. In July following, B.
79
iniprnveiiients nn the lariii .
Iiiriii
ti'iii
II.,
d lll''ll
III e|eitllli'llt lirnll:
dit I
1'4 Ills Inlir
iniisideralile
his iireiipa-
ly nil. i<i the
fniir d iii'^hters, that the d.'i'd [lassed nn est ite
i<i inhi'rit iiu'i', and that iinthing eniitaiiiiil in it
.'iillld nper.ite as an estnppel nil tile .l.visees iiii-
.lertli.' seeiiiid will ; that it ;4.ive nid.\ a light to
nei'iipy until the test.'itnr's ileatli, with the assur-
ance that if the agi'i'i'ineiit were kept liy defeii-
il.'iiit .111.1 his wife, he wniild maU>' im alteration
in his lirst will. 'I'liriiti/i 1 1 n r. y, i'. Iiintmh, 12
(,>. B. X\.
|l. innrtgage.l tn the 'I'liist and Lmii ('iini|iaiiy,
iiid afterwards tn A., whn assigned tn the [daiii-
till'. I), then ennveyed tn the .lefendaiit, who
tniik pnssessinii. and was I'ecngni/.'d liy the Trust
and 1,11 in < 'nmpaiiy as linlding under them. The
plaintitr lirnught eje.'tinent, tlnie hiving lieeii
nn .Kfault under the mnitgage tn the Trust ami
L.iin ('nmpuiy, which cnntaine.l a prnvisn fnr
pnssessinii liy 1). until .lefault ; -Hehl, that the
plaiiitiir WIS entitle.l tn reenver, fnr I), e.inld
lint ill the face of his mnrtg.'ige deny A. 's right
tn iiii.ssessinii, (thniigh A. might lie ejected liy
the Trust ami I, i.in e.impany), nr tli;it of the
pl'iintiir as his as-iigiiee. Ilvhl v. Miliidii, 8
V. V. -IMl
The linn of ('. (J. & Co. hoing iiidolited tn the
plaiiititl's, mnrtgigcd to them in fee certain l.-iiid
ami promises, nn which w.vs erected an irnii
fnundry with the m ichinery and tittings u.sed
ill the Imsine.s.i. I'l'eyi.uis tn this mnrtgage a
prior nwiier of the land hidalrei.ly iii.irtg.igod
it ill lee to one (1.. wlii'li mortgage was still
.lutstamliiig. The defend uit, assignee of ( '. (I.
& ( 'ii., reiinived certain portions of tlie maehinery,
ami a dispute arose with the plaiiitifl' as tn what
[i.-irt of the prniiei'ty sn remove.l c. insisted of
fixtures :— Hehl, that the .lefendaiit lieiiig as-
signee of (.'. (i. k I'n. , enul.l not set up the prior
mnrtgage tn<;. as disabling tlieiii frnm mortg.i-
giiig to the plaiiitill's what they assumed tn mort-
gage, and that the only .juestion therefore was
what portion of the articles mentioned foriiieil
jiart of the laud, (looilvrhum c/ al. y. DciiIidIiii,
IS t^ B. 203.
Declaratifin, that before the Ki Vict. c. 4:?, the
plaintitfs, with others, promoters of the (Jranil
Junction Railway Co., incorporated thereby, had
caused certain preliminary plans and surveys of
12.') I
ESTOIM'KI,.
the Miiid riiilwny t«i Jii! jirepari'il : that tlio linu
of mill r.'iilwiiy iiii!<himI tln'ciii«ti iilaiiitill'n' torri
inly, :in<l the |iliiiiitiirN iiinliir tli.tl Ad iIoI'mvimI
tlii'ir liiir |ii'i)i((ii ticm nl tlm i'X|(fiih(' i>i mu'li
iiliuiM, \('., wliii'li sum tlir Miiiil <'iiiii|iitiiy, \>y
flllri! Ill' HUllI Ht.'ltUti'. H. .*), Ilt'l'illllt' liiklili' to
rfl'illiil tci till' |ilaiiitiir-i : tli.it uliili' nu liiililf,
till' H.i'xA i'iiiii|iiny ami the ilrti'inlaiits wci'c,
iiikIi'I' till' l)i N'li't. t'. 71', mill It ri'i'taiii iIih'iI hI
niii.ili;:iiii itimi, liiniu'il iitn niii' riiiii|i:iiiy, ami
Iter iiiii' am ilKiliiiti^l ; a.iil tlir I il;iii>l Juiu'IimM
Ituiiway ('>>. iliil iiiti'iNoi't tlii' iiiaiii line, uriil
Maiil MMivcyH liavi' liii'li a|i|Pi'ii|ii iatnl liy ilf-
fiiiilaiiti til lliiir iiwii ii«i', aiiil liy Iihtii nt
said aits ilrliinlaiitH have ln'i'iiiiu' lialilr tnpiy
til |>1 liiitiDs till' saiil |ii'i>|Hirtiiiii so jiaiil liy llii'iii
lis ariii'i'salil. I'lia, tliat tlii' rajntil stiii'k in
Hail! liraiiil .liiiii'tinii Itiiluay I'n. \\as imt taken
liy till' |ii'i'siiiis III siiil Art iianii'il, i<r any iitiitrs,
liiii' was any inumy t'\> r paiil ii|ii>n it, ami ililrii-
(1 ants iii'xcr liii'aiiii' stiiikliiililrrs in saiil I'nin- I
limy. I*i'|iliratli>n. tliat ili'tcmlalits slmnlil iii>t
Ik' alliiwcil sii til plrail, licraiisc, liy tlir ik'cil ul
iiniali; inialiiin ini'iitiiiiiiil in lliv lU'rlaratiini. tiny
iinitiil tlirni>ilvi's « itii ' lir < iiaml .liimtimi Rail-
way ('11., Hiiil iiTii^ni: I'll it as an existing,' I'uin-
jiany, ami tlir saiin' tluii'liy lii'i'anii' ami liassinrc
existi'il as a |iart ul lU'ltinlants. l.'i'Jiiimlrr,
that ilcfinilants shmilil imt lii' ini'dmli'il I'lnin
their |ili'a, lici'iusi' saiil lU'vA was mily inailf liy
authiiiity III' the |iiiivisiiiiial iliii rtms in tin' Iti
A'ii't. c. 4'.'. nanii'il, Imt thi'i'c iit'vir wurr any
shai'chdlik'is in saiil i'iiiii|iany, nor was saiil ili'cil
t'Vir duly ratiticd liy tlioiii, as i't'i|uii'uil liy the '
statute: lltld, nn diiiiurii r, rejuimler ;;iiiid ;
and that tlnie was mi siuli estuiipel as relied |
(III liy the iilaintills. Miiiiiri/Hi/ I'miiifil uj /In
I'lii/n/ Ciiiiiiliis III' /'ilirhiiriiiiii/i mill Virhir'ni v.
Ilniiiil TniiiL- /!.' 11'. di. i,/' riuiiiiln KS (,». 1!. •-'•-'O.
I >et'enilaiit owning a vessel nmrtgaged her tii
( '., and ( '. .-issiirned tin,' niiirtgaj,'e, with his iither .
jinilierty, tn the plaiiitill' in trust t'<ir ereditms.
The plaintill' lia\iiii,' linmirht replevin to olit.iiii
iMissessiiin : Meld, that del'endant eiiuld nut
dispute till! pi liiitill "s title, ur set uii tli.it he
MMs trustee for a t'uri'igii eorpnratiiiii, who liy |
law I'liuld nut liiild .sliijis. I'lihiii V. Jiriiiriii, 111
i). 15. :{:i7. i
in diiwer, liy the widow of .M., it aiijieareil |
that a p.ituiit for the land i.'^sued to mij K., and ■
a witness ]iroved that he was one of the siili-
surihing witnesses to K.'s will, Imt the will'
was Hot produeed, .ind no evidenee of its eon- I
tents given. It was proved, howevei-, that 1!., 1
fniiii whom defendants pnrehased, derived title'
through I'., who held alioiid for a deed from the I
pit.mtee, and tint 1'., liefore he sold to I!., t ink 1
a (piit claim from M. of all his interest in the
land, executed liy M. only, in which it was j
atated that the land was devised liy will to the j
said .M. liy K., the original grantee of the crown : 1
— Held, that no estopjiel arose upon this deed,
and that there was no proof of .seisin in M. Minn- '
kir V. //itir/,iiis, Miiiiihr ^■. Ashi; '20 i). B. I'O.
Defendant heing indclited to plaintiff, hy an
indenture reciting his indelitedness, and that he
hud agreed with plaintill" for the ro-ii.ayment of
the said sum due within six months from date,
with interest, conveyed to plaintitl' certain lands
habendum in fee ; Proviso, that the plaintiff, if
the debt was duly paid, wouhl re-convey. In
an action to recover the money : — Hehl, that
defendant could not deny that he was at the date
M:
of Haid indenture indebted to the hlaintiir
>n,fi v. /fi/liini/, II r. IV :«)().
Ai'tiiin on a bomi r.'eit,n« that tl„. ,,|,i„tiir .,
slierill had sei/ed goods nmlir a II, f.i.at t|„
of (i, i\ ( '., and I'liiiditioiii d to be \ii|,{ |,'",'j'J
obligiir shiiiild deliver the >.,iilli' to tlir «1|, ri|| '',
Niii'li time and pl.ieeas he mIiiiiiIiI appoint j'l.'
that at the time pointed out lur d. Iu,.rv ,'1''
Mheiiir had mi writ at the suit of ( I iiii,|, ,. ;,i "> [
I III II 1 I ■ "ii'it I W |;|c).
lie eoiilil liaii' solil saiil u [^, \i i|,,, .,,, < ,, '
only wilt pliidlli'eil WIIN one teited tin 'JKt ,,1 I
May, IS."i!», iind spent. Issue h iviii;,' in, .;,"(, 1^,''
and a viidiet rendered fur deieiM.inr ..n ,'||S
ple.i: Held, that there must be |i|.li.iniiit,|„J
obstante, for as the bond "■xpiv^ilv ai||iiiit,,| ,1
levy under this writ, del'eiidaiit niiiM ii.,t ,,l,j,.^t
to I hi' plaintiff's right to mdl. and the |ili i tlnij.,
lore formed no defeliee. fi'urhiiii \- fuM,,,. I
Del'endant, being lesseo fur year,-i, with a n i,; i
to pill'i'liase the lee. ill IS,'">!I ll|iirt„M;.'ii| t(niiir>
fur t'T.'), ii.'ivalile in fuur years, witli ;, |,mvi»,i
that until ili'l'aiilt defend, iiit sliuidil ||<i|
sion, In ISCil he made aiiiitlur iiiurtgiiL'i' III tliej
same lireinises to the pl.iilitilV III Icr jiiifllsf
p.ayabli' in six years, with a similar pinvii,,. ij
ISCi.'t the first niurtiiage w.'i.s assii;||,.,| 1,^, ^ („
the pl.iintitt': and mi ejeetiiu'iit liniii;.r|it iiv Imni
upon it, delelidaiit set up llie pmvi.vi in the
second mortgage, on whieli there li;iil liivii |„i
default : Held, that the plaintill «,i< imi ,.,.'
tiipjied ; for, I. The sei'oml liiiiit^:\i.'c iiiin||t t;,!;,
ell'eet liy jiassiiig an interest; •_'. It the |il:iiiiti!f|
W;is estopped by the seeond iiiiirt^'.iije. iliiiinlnitl
was estojiped by the lii-st, .'iiid an e,,tip|,|irll
against an estoiipel sets the matter at lar.'i ;J
but, 'X Sembli', that the re-demise in a iiinit;;i_'e|
eanniit uperate, by estuiipil ur uilnrwi.ii, U
grant a greater est.ite than the miiit,;;:ii;iir((iii.j
veyed, out of which it is e.irveil, ami liciv li«|
had no such title as lie jirufe.sseil lu pa,*;!, ,Ai,,„j|
V. Midiliiiiii, •_'< {). W. l,Vi.
'J'he plaintill' brought ejectment mi tlielltli,Si]i.|
tember, ISfi.'i, elaiming under a iiiiiit:;;ii,'i' imuI
\V., the then defendant, in wlmse jilaei- .\l \\.\A
allowed to defend as laiidliird, ilaiiiiiii.' nii.i.ril
niiirtg.'ige fmni \V. tu ,Mel. a-si','iieil tn liiNi.1
The iniirtgage tu Mel. was given en tiif !i!b|
Xiiveinber, IStiJ, and that to the plaintill Hiitliel
L'lst March, ISlU. On the L'Ist Septemlnr. |v;.
.Me.l. liy deed reciting ,aii iiiterlueiitery >\v rdI
inC'lialicery in I'espeet tu the fureelnsiiren! \V sj
niiirtgage tu him emiveyed tu M. a,< W.-
liointee, and on the ".Itli Nuviiiilier, Isil.'i,
decree in the .same suit, this mnrtgige \v,i>
dosed. It was euntended that tlie iiiert'ji^itd
.Mel. had merged in the inlieritane'. an<i o'lill
nut be set up against tie,' plaintill', l>iit IKH
that if it were su, tin,' plaiiitilf euuM iietrinniTj
for when he bruuglit his aetiuu lie hms larrcl
by the murtgage, 'and he cuuld net :iv,iil l.im|
self Ilf what tiiok place afterwai'.l-. It
proved that the defendant, in April "i' ,M;iyJ
ISli'i, assorted that he had i,'.it a deeil ut tt*
equity of rcdemjition from W. : lloli li'ivl
ever, th;it this might refer tu the ei|iiity
created by the second murtgage, ami that till
defendant was not estopiicd fnnii ileiiyiiig^V
title to mortgage in fee in l,Sli4, J/cA'"// I'i
McKnji, 25 Q. B. 1.33.
A ])erson who has executed a decil ciiiii"t t
bound by an alteration made in his abstiia' bjj
till' iiiiirt#i;;i'rn:i-|
'.■irvt'il. ami Immv liel
fussuil til jiuss. ./ii i i|
IVr to tin- fi|uity
urt-.'igo, aiul that l_
,1 in nil iloiiynig"
Ited a ileetl cuiiini
i,W
KSTol'I'F'lL
1 '2.n
h"
|.|^1 ilircitioll. O""'!"''. ^vlirtlicr, ll|iiili the ili'Mirilircl liy llU'tcn mill liiiiniilN, riiliiliirllrili^; llt
tiitiil ill lilt' l'<'|ii>l't lit tlilM cum', ilcli'li' till' N. I'!, iinulr lit till' lilt 'I'IiIh Mtill'tiii^' |iiiilit
I.lrllii
,t (Mllll
i.iitii>»:
I III' lirlil rHtii|i|«'il liy IiIn iK'tH I'lmii ii|iiiii till' ;^ri>iiiiil uaH iiii<liN|iiiti'i|, iiiiil it wnn
tin
ml Nil altrli
.1/.
Illill V
//i
ailliillli il tliiit till' ili'^i I iiitim
I ^IM'll I'lK
till
.ii g. H. W».
till' mil
III!
,„,.<l.lllll I
.In
I'V, IHM ' ,1. W. tiiiik
he mill III iiiii'Htliiii iiiiiirr an , . ,■ ',
.. . ,' ., ^ ... 11.,,. Ii'tn I ami
l.iliil riailiii'il li.S till' |i|aiiitilt : liilil. lliat ili li li-
■ hint w.'iM r>t|ii|i|ii'il liy lil!« il I. aliil imilil imt
t up any i|iii'Mtiiiii an tn llir liniinilarv lutuirii
■III'
liiitiiri'
f ji'ioc liir liilM' yrai'N I'Mriifiil liy t
(riiM^irnili V. f.'i(;/i. .'Iv! I,). |l. I'lli.
■til, .i«U' I'l II
11,1. I |iii\\<'i' 111 .'ittni'iny. at till' lent I >i ilai.tlinii, I'nr I'litt'cili;.' |ilaliitiH"H laiiil, ami
ai'i'iy
III'. Tlllri illstlUllirlil alsii riHltallii
|i„,ritlitti.imi.liaHi
iNn )llailltltl 'l llwi'lliti;,' 111
tl
U'lTiill, all
I I'l
L|„, , Ml uti ' <'i'' ili'^'iiiiii'lit all
•" . 1 *.. ..1' i'\ii I.
I'lir f'J.'iO. C."il) tu 1)1' iiaiil nil iiiiiN inn till' Iiuii.hi' tin i'iIhiii, ami iiinvritiii;,' it
fiiiir 111"
Ijiuiuiir.v ill •■II"
till' linlalli r til ilrU'llilanlH IINr. I'll'l tn Mil nillill I'l till'
taliiii'iit'* "' '•'"'" I'lili. I'll tlir '.nil 111 iiiiiiit a» II liTN til till' il\M llin>,'-liiiiiM', that liituri)
Il yrai', till' lirxt iiayimiit li
linlitl
iDlilil'
Iclri'i »
|iii-«iH.iil ami i.Miirr nl tlio
laiil il\Mllili;;liiillHi'
iiiitlic'.ltli "I .latiilary. IHI.'i, .iinl it tlii' ]iiii' int. ililiiiilantrt jilari il tl
aKrairi'il mit, in Inn nl tlii' nut ii'mii'MiI tin iihii, mi lliat it iiii>.'lit tlniialti r l.i' hiihai'iI
111 tn --ix |it'i' I'i'nt. nn till' ni'iijiii.il jiiir- I>,N tin in. imt allixin;: it In tin' hiinl ; ami ililVii'
,11111 i''|ii'
|clu«' iiii'i"'.^'
.sIlMllll
1"
il. .1. U
liiailc the
aiilM att('i'>\aril~. ami w liiln tlin lami \min iiiiin-
IliM |'''.Vlii'
lit 111 C'll I'l^ till' time 111 I'xri iitin^' clnsiil ami iini'iI an a ininiiinii.
.1 til'
Itlii* III:
.iriiiiifii
t, .'iiiil ilr|iiisiti il L'.'iO in till' liank n|ii'ii ami niiiici'iiiiiiil, in tlii' ilay tiiin'. |ir,'ii'i'liilly
Itiillicrttll'' "''■'"
III, I lilt till' III rxnli in \N linni tin' rlltcliil llin lilt .nil I lrnin\ nl the ilwi'llili
4,lti-' w.l" Vi'S
t.'.l li;
„iii| iiiitliiiiK ninri; w.in ilnin'. .1. \\ . ri'-
toiiiiil ill |"i''i*i'''''<i"" 'I'iti' liiw 'li'iitli in I.S."iO,
liilmilii' «•!'' >'iii'''i'>''l'''l 'i.v Ili''* •'<i'ii. I" Mliniii it
that 111' liail |iri'vinllr<ly snlil, .iml tlic
Wt
iiiif.iri'ii
laviii;; ilii'il it was imt llm sanii' liiiiij; tliiir |irn|n'ity, ami |ilarril it nil
tlnir nw n l.iml, « linli art' part nl tlic ti'i'hpa.'-.m'M
■ nniplaillril nl, llrpliiat inn, tll.'lt ilcl'i'llilall t >4
slinlllil lint lie allnwi'il tn pirai I ;4.iii I pli'U. In rill-i'
tlii'S Will' I'lititli'il tn an ilitiTi^'il III s.iiil I. mil,
ami lillilt till' linllsi' nil till' laliil, ami n(rll|iii'il it,
anil altirwai'iU, ami Intuit' tlu' tri'Kpa>si'M, .Sjc,
liy ilifil iniiNiyt'il till' laiiil, uilli tin' appiiiti.'-
n.'inri'S, tii.V,, w linrnnviyi'il tn plailltlll.-i: lli'lil,
li')ilil'.'ltlnii >,'iinil, liv way nl i'Stnp|U'l. Cii nil fnii
v. l/iiii/ii; ;u (,», li. l-.'j'.
vuil tn llu' ilt'lVmlaiitK, w liii intii'i il ami ami
Hi||nillU'.\
*lUiii ill piis-t'H-.inn I'ViT siini.' : llrlil, that
_»lln'i'iitrv 111 •!■ ^V., nmlii' uhniii thoxnii ami
Utn ik'kiiiiaiits ilaiiiii'il, wan iimli'r ('., lUli'ii
Jjutmiilil'l ll"t iilijn't tnC'tt titii-at the tillK'nl'
i \V s tiiti'\ . Ciiliiiiii- V. Si-iill, (iiliiiiir V. h'rii ,
ji;, I'. 'Vif.
(In till' l."illl hii'i'inlii'r. \S4H. ( t. rnlivryi'il tn
i.rattiit lilt .'l^l. ami III' I'liiuiyi'il l>y tlii' saini'
1 "as aji|iiiili'ii.'int tn till' lami, a lull, Irir
iliiiiiX'striitiil i'ij;ht 111' M.'iy in, nviT, n|iiiii ami
H;, ami til iixi' ii« '-^ piiMic hi|.'hwa.\ nr .strcrt
stri|iiil laiiil lit' twi'iity lilt ill linailtli
Il '.till' Hi'^li'i'ly siili' nl till' naiil panrl nl
iiiiliiij.' Irniii till' highway alnii'.saiil tn
llrwati'l's iilgi' nl the rivir .St. Luwi'i'iii't', at
litmus anil si'a.'^iiiis Inr I'ViT ln-'realtiT." Iiiaii
lull ini' iilistnictiiig the right nl' way liy a
Mtlmusi;: llilil, that it wmilil liu iln ilil'iini.'
kit till- liiiatliiiiisi' wiis lii'liiw high-wiitiT mark,
li'iiyli II. s I'ijjlit Hilly I'xti'iiilt'il .sn far, Inr O.
I tliu ili'l'i'iiilaiit I'laiining iiiiili-r him wuiv
to>i{i|>i'il liyli. silt'til tn 1'., w hirli graiitoil tn the
hlrtstilge. I'liiiiih \. Mi-d'iiiiiiiiii, ',i'2 (>). 15. 8.
I in vjn'tiiii'iit the plaintilV I'laiiiieil tlimugh
ilftil irmii .1. .M. tn .1. ; ileli'inlant elaiineil
iigli ;i liiiri'lia.se at sherill'.i .sale iimler e.xeeii-
ag.iiii.it .1. M. Alter the .sheriU'.s sale, .1.
ktirui iiitii Mil agii'i'ineiit with l>., the jitir-
■it'irat siii'li sale, liy wliieh I >. enyeiiauteil to
iiiiny till' liiiiil til .1. I'll piiyineiit nf SlA'.i within
[Utrks; the a^;i'eeliielit tn- lie yniil mi imii-
IIJTiitiit. The iiiiiiiey was lint paiil. I >. enii-
kvnltii M., with whnin .1. maile an agieeiiieiit,
Tatmiliis iwiiig M. .•?l,'_'(K) within ii ye.ir M.
li'iiiiviy tl) liiiii : that . I. might .sell within
tVKii. an! NJiiiiihl hiue all he eolililget ulinye
aiiil that .M. .slnmlil liuye pns.ses.siiiii,
'I. aui'iii'iliiigly gaye to him. After this
'nvt.vcl til the phiiiitill' :- Helil, that neither
F«iiitiit I'stoppeil the phiintitt' from ohjuetiiig
Mil'.' title ileriveil iiiiiler the alieritl"8 sale or
Nl - ttiug up hi.s legal title. Jlorrimm v. Sfeei;
Bi,|. B. IS'J.
In tri'siLiss, 4. e. f., it appuareil that defen-
mtmiiveywl to the plaintiff 19 acres of lot 2,
,a«l ;
'2. liiiiiii 1,1/ h'tii./ijii I.
(al ) 'iiiin i/iiiii'ilii I'lirr /■■<''iii ul I'nliiil.
\\ here a niiiniiiie nf the einw n liilnie the issn-
ilig nf litti'I'.s pati lit, enliyi'_\ s in It e tn nne pi l-nll,
eithir liy imieiitui'e nr lUeil pull, ami he altir-
wai'ils nlitaiiiM the p.iteiit tn hiiiiM'U, ami then
I'liiiyeys tn aiinthei', w liii iiyaiii iniiveys. the
patentee nf the iinwii, ami his assi.nns as pijyii'M
111 estate, are i'stii|ipi'il liy the liist enin lyaiiee,
ami the patent I'leils the i stnp|iel ami inake.s
it a yesteil interest ami estate. /)iii' il. Hiniiit/iii
y. Mill IS, '_' ( ». S. 41.M. alliinie I in />i,i d. Tiil'niiii
y. .l/<'/-,'/n//, .'lO. S. .V.I.S; /),,i il. In-ilii \. ]\'i'l,st,,\
•-•«,». li. •_"_'4 ; liniilhi' y. /{iiiiiilli.ii, l.")t'. P. l-.'.'t.
Where il iininiiiee of laiiil liefiire patent i.SHUeil
eniiyeyt'il it away, lieiiig uiiinarrieil, ami after-
warils, haying nlit.iineil the patent, iiiaile a new
eniiyeyanee tn the .same part,\', lieiiig then iiiiir-
rieil : llelil, that his wile eniilil lint el.iini ilnw er,
.us she was' estnl)|ieil hy the ileeil iiiaile liel'nre
the patent isslleil. Mrl.iiin \\ l.iiiilliiii\ •_' (j.
li. •_'•_'•_'.
Where the nnininee nf the iinW 11 uaye a liniiil
fnr il ileeil nf the lami tn lie inilile when the
jiateiit shniilil issue, ami in the same linml enii-
yeyeil ami enyeiiaiiteil to guarantie the title : -
Melil, nil I'ji'etmeiit liy a gnintee nf the nnminee
miller a ileeil exeeuteil after the patent issiieil,
tlmt this hnml gaye tn the nliligee no title liy
estnppel. I)i,i il. Mi-Cill y. Slim, 2 i). H. 48.%
fnlloweil ill Tiiilil y. L'liiii, l(i (i. W. 't\i\.
The plaintiff' in ejectment proveil a jiajier title,
but the grant from the crown iliil not i.ssiie until
18'2(i, aiiil the iloetl from the grantee wa» exeeuteil
in 18*24. TiuM ilecil was liiHt, anil the memorial
of it proiluceil as seconilary eyiilence shewed it
to be an ordinary conveyance in fee, but did not
nm
"f"
i H:^:0
1255
ESTOPPEL.
\L-
shew what coveiiauts it t'oiitaine<l. The iilaintilf
gavi! a noticu uiider V. S. l'. C. v. 27, sec. 17,
and ilefeiidaiit slieweil no title ; — Held, that the
<leed l>y the jiateiitee should Ih.- presumed to have \
lieeu one which wmdd ojierate liy estoppel. Arm
.■i/roii;, V. Lillh, L'O ij. H. 4lV).
ill) Dl/c r I 'd-ti.-!,
S. h.iviiiu' iiioitL;ai.'ed tirtaiii land in fee. after-
wards leased it tor 21 years, niaiiinj; no mention
of such morti,'age in the lease. He then con-
veyed *• > the plaintilV in trust, suhject to the
inortj,'age. 1'., the a.ssi^^nee of the mortgage,
jirocceded to foreclo.-e, and under a decree in
( 'hauctTV, the land was sold expressly snliject to
the li ase to .1., who receivcil a conveyance from
S, it I', .-ind the plaiiititV, each using apt Woids
(liargain, sill, ami release, i to convey a legal
estate in fee. On the same day, J. mortgaged
to the iiLuntitr to secure a lialance of the pnr-
cha.se money. This mortgage had lieen dis-
charged l)eforc .ulion liy certilicatc duly regis-
tered, and the plaintill sued defendant, who was
a mortgagee of the term liy assignment, for rent
acerueil during tile existence of the mortgage :
Held, that though S., when he leascl, had only
an ei|uity of rt'iiemiition, yet as this fact did not
appear in the lease, he had a legal reversion hy
esto]ipel as against tile tenant. ('iiiiniuiii v.
Twhl, -l-l {). li. :i'M, alhrmed in appeal, 2 E. &
A. 434.
Held, that the deed in iplestion in thl.s viiHc,
which giantid the land and not merely ilefeii-
dant's interest tlieiein, tlnnigh without cove-
nants, operated l>y way of estoppel, anil that the
title sul>se(|Uciitly acipiired liy defcmlalit jiassed
at once to the [daintill': Todd r. < 'ain. 1(> i). I!.
,")l(i, and Doc .Mc(!ill -•. Shea, •_' (). H. 483, .lis-
tinguish mI. I':<itli' i:<lni,\ .Mi-/h,w II, !.-)('. I'. l(iL>.
(^'u.ere, u liether the ileed of an infant, unless
legally a\oiiled, would operate hy estopptl to
pass the title to the land as soon as the fee ves-
ted in him on ohtaiiung his majority. J/i''o/»-
jiiiiw Mriliiin, .St <i>. li. l.">7.
See. also, I. p. I -.MS.
;}, ltidtiil.1.
A. conveyed to 15., covenanting that at the
time of making tiie conveyance, he was seised ■
in fee simple. H. afterwarils conveyed to I'., \
reciting that he was then possessed in his own
right of the l.ind in (juestion :- Held, in an
action hy ('., the assignee, of li., against A,,
iijion the covenant, that ( '. was not estop]icil Kv
R's rccit.d. i;ii„il,l>- if III. V. /.'.(.•<, (i «,». H. .SIMI.
'I'lie sherilF, holding exee'ii ions against defen-
dant at tlie suit of ditlerent parties, took from
him a hond reciting that he had seized his good.s,
and indemnifying the slieritl "against any loss,
damage, or liahility, v.liieh may he incurred liy
reason of the execution, the wrongful execution,
or non-execution ,if the said writ." The slieritl
afterwards sold the goods contrary to defendant's
wish, who informed him that they helongetl to one
a. — (i. lirought trover against tlin slieritl, j)r(ived |
a liona tide hill of sale, recovereil the value of the ■
goods anil registered his judgment. The slieritl
then sued defendant on his bond : — Held, 1, I
that the defendant was not estopped by the I
recital from denying his property in the;.,,.],.
2, that although the damage .aciniin.' "t,,V|
sheriil' came literally witliin the cniiriitiiL ,f|
the hond, yet that the defendant, linvm,. 1 1
pre.ssly olijecte<l to the sale, wouM imt li.. ir.ij'f
VoHiill V Jln/d-id; !) g. B. 47!l. *
The demandant in dower had aeceiitiij ii,r j. |
claim as dower, a hond from the ten.int nj tt I
laiiil for the puriMise of securing to licr. a- i«ir!.j|
a family arrangement, a maiuteiiaiuc, wlii.j, I
after enjoying for some time, sla- ruliiini|j.i,l|l
.She iiad also added her own hand .and sea] xut'T
lioiid : Held, tliat even tlioligli tile ItiJuL, it
the hond did not o|ierate hy way nf t->t»iii»ll
a jury were warranted in liiidiiig tiiat it aiinitj
ed to a satisfaction of the iilaiutili'.s tiaiintJ
dower. (Iii'iiiii'iii V. Shiiirl, ~ ( '. |', .'jli;,
llchl, that tlic recitals in tiie ih^cl |.,.ll intlij.
case, are not hinding on the grantee, tlicv U™
entirely the language of the grantor ; iiiiil,„|,u
i|Ucntly tliat the grantee was not estn|,|n.,l ff,,,
setting up the contrary in an aetii.n ii,,t i,,inf
(led oil tiic instrument anil wliu'.ly n.ljittn' '
it. MiiKihr V. A.ih, IOC. I'. ,'!(;.•{.
Held, that defendants were nut e>tip|i)ii-,lliJ
the lease umlcr w liich they clainieil fiHin ,\f^\
iiig the power of the lessor in this cLse. t"l
for the recitals professed to shew wliat titltk
had. A.v-Vr /• V. Kir/.-jiiilrii-k, -Jii i), |;, I'l;
4. /I'iri ijif.-i mill, r S,,il.
In an action for the imrciiase iiiniuy ni la
coliveye.l, a receilit under seal in the cuiivtvaiiJ
is conclusive evidence under the ]ilia .r; ij,]
inent ; and it is unnecessary (o plead tin .-tn; '
specially. Kilrliiiin v. SmUli, •_'(• (J. ll. :i
fii-iiil \. Mi-Ci'll, l!t C. I'. ".(().
The slieritl', in an action for the |iiirch;i.*i'iii.iii(i
of goods .sold, was ludd not estci|i|Kil, unilfrtil
facts stated in this case, froiu deiiyini.' tluiuji
meiit liy the ackiiiiwledguieiit iiiider seal, inihl
hill of sale, of rcccijit iroiu C, the tnistfifiiiJ
agent of the defendants, the piiivha.^tis; lurj
w;is not specially ]deadcil, the aetimi was iil
upon the ileed nor against a party tn it, .imitlkij
was notiiiiig on the f.aee of it to luniiirt •■.
defendants. Cur'-.ill v. /tmil. nt' M':ii'i"'i l'IiI
It. I,S.
I'laintiir a-ssigned to defendant his intiri-t il
a certain lease liy deed, eontaiiiing a imi|it;
the consideration money, .S.'i.'iO, This di-.i
placedin K.'s hands to hnhl till ileli-iulaiit.:
posited this sum. K. deliNerd it tn ilflVii'iai
on his promise that he would pay, hhI ililVii'l;
afterwards paiii him .ST.'i. saying lie wnuMlanj
him the balance as soon as he iilitainoilit, 'l
being askeil again, he said that he liailtlura"iiei
but that the plaintiir shoiihl pay [.art "i t'lcJ
peiise of a bond which he had to give iisinvrr
the title, riaintilt then sued nium tliei »
counts, for the purchase niuiiiy nt l;inii »"■'
an account stated; -Held, that he was ist'i'f
by the receipt under seal, and cmilil iint m"v|
on either count. Cocking c W'.uil. I ''f* '*■!
distinguished, as to the accoiiiit stat- i *"«
/(';/;/ V. Siinnii-, '2'> (.}. H. "J."!!'.
riiiiititl' in Augu.st. IS(i7. eiiiiveveil t"iei^
dant certain land, by deed eiintaiiiiiii,'ariMf'
for the imrchase money, it apiieaivil, li"«»<(
tluit when this conveyance wiw iiwile, *
1257
K3T0PPEL.
1258
Diiurty in tlie ;;i»«lj.|
iigu aciTUiiig "t„ ,t|J
in tlio (.■niiilitinri „|l
ftVuilaiit, ii;uiii^. ci.f
Wdlllil lint lit lulitj
4711.
liail iU'ctiiti->lii,rl,(,|
nil tliu triKint Ml tt^l
riiiL' tci luT. a'^]«in«
iii:uiitiiKiiKc, wliitl
inc. slif I'oliinini.y^^
liliaiiil ;iii>l M.'al i„\'n
;lii)\ii.'li till- m-iiii
■ liy way nf f>tiij
luliiii; tiiiit it aiiiirtind
K' iplaiutilf's flaiiii tfll
■'. 7 ('. I'. :;ir,.
II tllr ilff'l |>i'll Ultllil
111' L'l'iiiitif. they Uin)
K' ,i_'i'aiitiir ; ainl.uij*
ivas Hut t.-stn|ijif,l jti,|
II an artinii nut i.,im|
III wlln'.lv nill:itit:l!
wvw not u^ti'iUK-.i'ii
L'V I'laillKil h't'M ■\rn^
ir ill tlii;- ca:*!'. t" 111'
tip slu-« wliat title 1
!•/(■. -Jii I.I. 1'.. -'17.
iiii'cliasi.' iiioiuy 1.! i.iti
r sral in tlio I'nUVi-yaDd
iinilrr tlif jilua "I |«>yJ
irv til |ilrailtlii.i>t"]iiif
Sw'iih. •-'(• <,' li. :il3|
I'. '.Ml.
ir tlif \iuri'litiM'iii;icj
fstii|i|nil, uii'iii taj
trniii ilfiiyiii:.' tt I'l!!
i'lit niiili'r >t:il. '■ti'if
II (1.. till' tnlsIri-lDJ
tin- )niri.'hasi.i'> ; l^rl
,1, tllo aitiiill «:1>1JJ
(larty tu it, .iii4tl.i-ij
it til niiim-i't 'i. «it|
liiiilaiit liis intiTfti^
iit.iiniii:-' a miii't :i^
.<!.'>(!. 'i'lii> '1
mill ciU ilctViiilim;
.v,.|-il it tiMldVu'iai
lllil [lay, -Mill ililili'll'
.-.ayiiili 111' ""lil'lM
,H ■ln-',iUtaiiii''lit i
tlial 111- Iwi'l till- 'ii"nt)j
iilil iia> i.art'iltVi:
lail til .liivi' iv>l« ■
t^iicil iiiiiiii tln'i"»iiii
iiiiiiiry 111 I'lii'l ■^''''*'
1, tli.'it li>' \»a*i'*'l'P
Hill I'oiilil ii"tm"V<
V,-. Waril. M'.B.^'I
aix'imiit rttati 1- "<■'*
i.".il.
sii7, I'diivi'Vi'ilt'i'lfi^
^.,1 (•imtaiiiinL';ir'''<j
1 1 aiiiicari'il. li""*''
n jtioii beiii).' raised as to plaintiffs'' title, tlie ' having rodeenieil either, ami the lirst niintoagee
1 -'uj.mt retained -SICM) (if the imrehiHu money, having taken ]«isseKsi(iii snld tnA.'.-^ lu'ir I'dv a
■ "^.liii (Ictiilier tVilli'wiiig, g.'ive the [ilaintiff the valnahle oiiiisidfratiuii, wlni (.iitti-ed intn ]inssfs-
■ ' cnieiit : " Harriston, Octiiher l.st, sion and died, leaving IV liis lu'ir, wlm was also
•|l„„i„,, agieenieni : Harriston, Octoher Ist,
\it\- Kilti'in nionth.'i alter date, I jiruniisf to
iv'tiitlii' in'iler of W. H., or heari'i-, the sniii of
Jlid iiriiviiliiig that the title i.-i good, on lots
lii,.iiiia.'<tii\vn hall, loiirt hcm.-n', an " fairground,
jituati'il I'll the north siil.' of Klor;. street, for
valm rt'i-iiviil. ' tlitsc lieilig the lots tdiivoyed.
Plaiiititf sued ilefendant on this agreuiinjiit, and
tlif ciiiiiiiiuii eoiints.
leu
to winch ilctcndant
1 lit : Held, that the iilaintitl' was
|lili*Kill':l.V>'i'l
' nil liy tlic reeci]it in tlu' dccil, wliuli iii-
1 this ,«!l(K), and that he could not recover.
' I'ri.it,,!,. •_>•_' ('. 1'. .■>7(>.
Iftt"
Idaii
|Jiii'W»"» V.
\ttiiiii en tlie coiiinioii coiiiits, and on an
ijirri-liRllt liL'tween iilaintitl and dclciiil;uit,
^itilMliiif -V|iril, Ks7;i, liy which, in considcr-
lllii.ii that the |il.iint'"i Would iKlivcr to dcfcii-
.nt M l''irt Maitiand, when rci|Ucrttcd. that
irtiuii 111 the rigging of the vessel I!. D., then
defciiilant «oiilil
defciiilaiit iilcided
relca.se liy deed.
Iminl till' .-^aiil vessel, tli
Dvtlu' Iilaintitl' ••^4(Mt. 'I'lit
ttvuitiit liefiire action, am
At tlif trial tills agreement was proved, and
lit I'Vfli ilatc, under the plaintill's hand
ml Will, hy which the plaintitl' sold to the
kidulant fur ."^.SIMI, the receipt whereof was
(tkiii'«ltilgeil, the liody and hull of the 15. !>..
A.'s heir: -Held, that the second mortgagee,
having a mortgage of the ei|uity of reileinption
only, could not bring ejectment against li., win.
was in hy purchase, and not liy descent, and w.'i.s
therefore not estoiiped Ky .\.'s deed. />tii d.
(ti//f.i/iii- V. Miinni/iiji, II. '['. 7 ^^'ill. l\'.
Where in ;vn interpleader issue (the execution
creditor liciii- ilefciid.nitl it a)niearci| that the
pl.iintilt' liaii t.ikcii a hill of sale of the goods in
i|llestioll from till' exc lltioll delitor while tll" li.
fa. was in the slierill's hands : Mild, that he
was not thereliy estopped frmii ih iiyiiig the
debtor's title, this .letioii not lieing uiioii the
deed, and lietwecli other parties. Mni-iiidnii v.
Mii,:^hiill, -JO (). P.. -ra-
in d iwer, it ajipeaicd that aftei' recovery in
ejectment ag.'iiiist the husli.iinl liy the purchaser
at slierill's s.'de of the hnsli.iiid's estate in the
land in ir 'ration, hue hefore judgnieiit entered,
,iiid while li.e husliaml was in aitual possession,
his wife joined with him to release her dower
in a conveyaiiee in fee of the land, hy way of
hargain and sale, to a third party. No money
consiihratioii passed, th" grantee executing a
mortg.iiie hack for the wlioli' |(iircli,'ise money
mentioned in the deed to him, and the hus-
l,il...ihis lights 111 a contract tor stripping i,,j,„i ,.,'niained in po.ssession until di.-pos.se.ssed
.Iv.'s.'.t'l. anil any iiayiiieiits .|ne Iron, the I. i,^. t|„, ,i,^.,.i,j' ,„„|^,,. j,,.,,,.,.^^ i,, th, ejectment
|l!..;:r,mei-.MMip.iiiy tor stri|.ping said vessel, or ,,',it '|i„. ,K.u.u,lai,ts, the tellant.■^ of the land,
elainied under the imrcliaser at slierill's sale :
I'li'iiiiaiit for any work done under the
bietnit til striji the vessel. It also ap]iiarei!
kit till' vi's.-iil having run u]ioii a reef in lake
/It. till' lilmitill had heeli eiiipliiyed hy the T.
jn-nrimi' I iiiiii'aiiy tostnp her and put the oiit-
i 111 :i plat'c 111 safety, for which he was to re-
evi '>".''''i(l anil the hull. hefclidant hoimlit the
iint iriim till' Insiiiaiiee comiiany for ."^'.l.'fO. and
iinil ami riLilit- under the stripping contract
ri'intlii' iiliiiitlH liii .SS(K). 'I'lie dcfendan! only
Uiitlif ]ilaiiitill •■s4(K) on the agreement signed
: tlif iil.iiiitill. and gave him the agreeiMent
isui'iliiii: III III. that the Iilaintitl was not
liU'il liy till' receipt in the deed from sliew-
ftliit the ayrueiiicnt siu'il on was part of the
WiilTUtii
Kiitiniicil 111 .sail I agr
t-Vi-'ii'/iiH., ;u(r H. 47!».
Held, that the dciiiandant was entitled to
herdower: that tlion;;li the hargainee aei|iiired
an estate as against the linsliainl, and pcihaps
against tlie wife also, hy estoppel, the defen-
dants heing no parties to the deed, hut claiming
adversely to it, eoiild not roncliide the deiiian
daiit from saying she had imt released henhiwcr
to a purch.iser. Mi/i,r v. Wi/ii/ ,i ,»/., 17 ('.
r. -Mis.
Ill dower the tcn.int proved a deed made in
IS.'U of the laiiil in ijUestioii hy .1., the deccaised
husli.iiid, to the tenant ; and in reply the de-
mand.int proved another deed made in Ih.HI hy
nil ilj|;ieciiu 111' fuel, lui « ,i.-i |iiti l iu iiie i i ■ ■ , i ' i i
itiiiii "fur said deed, and that the .S4(H) •'• t"'"^ iMwv, to w4iich the tenant was a snh
ilin.s:u.la«reenient wasi.. oai... Sn,i//, '-^enhmg witness : Held, that as either ilecd
shewed the estate out of I. during his lifetime,
it was unnecessary to consider the etrcet of the
.\ imiliiatc of ilii charge of a i lortgage, not tenant heing a .suh.scriliing witness to the second
iIvijA : .iiid ill any event as .1. coiild not set
up the second deed to avoid the lirst, having
made hotli, neither could the demandant who
claimed through him. Snu'rl, \, J.trl,-...-,,!!, '2(>
(I I!. IS!».
The defendant in ejectment, under the faets
.Uiiiiiiiii'c (if the crown liel'ore the issuing of stated in the report, was held not estopped from
ttt^||.iti'iit iiiaile a conveyance in fee to one setting n|> the .iliciiage of ,S.. for he elainied
N'li. alter wliicli the p.'iteiit was issued to under H., whose title lie supported against that
" :tiiil 111' tlieii loiiveyed to another, who ' of S. /Ii r \. /■yiiutt ,/ <il., '.i'* i). H. 4:U.
To a ill
elijoyinclit
eciited hy T.. the deleiidaiits' grantee, one defen-
dant pleaded that T. did not after (he making of
the deed convey to the plaintill'. The deed from
defendants to T. was d.ited ■J'Jiid . I line, and the
mortgage from T. to (he iilaintitl's was dated lOtli
April, IS.'i.'t. Moth were registered on the 'J8th
.lu'y, the deed lirst. It apiieared that there
wi'»"e two mortgages from 'l. to the plaintiffs on
BDi: iiiului- seal. Held, no ei toppcl against tin
i-rviit till' ilcht if nm ii. .ruth p...il. /liii,
.<'m/'i/. 14 C. 1'. •,'7(i.
.'). I^'ifll'i till'/ /*;'(i'(V.-i.
pin rnavivi'il : Held, that the patentee of
itiiwii, aiiil his assigns as privies in estate,
p:tn"tii]ijii'il hy till' lirst conveyance, ami that
t Intuit It'll tile cslojipel and made it a vested
Itri-t, iiiiitii'iiijiigthe c;use of Hoed. Helinesy
IMMrs •> (I. s. 4'.'4. /)(» d. Tilliiini v. J/c-
. ''I'l. S. ,V.IS. ' ' 1
["liirt A. iiiaile a mortgage of his property ti.
foi*r8<iii8.itiliffi'reiit times, and died after" the
"Be iur paymcut in the tirst mortgage, without
•laration on a covenant for ipiiet
in a mortgage to the plaintill's ex-
'I
, t-t*
12/59
ESTOPPEL.
i^<;q
iiiiotlior lilt wlioii tliis iiKirt^'agu was niailu, and t(>i)k from lier a iii(>rtgaj,'e of all the J
iii.stL'iil (if wliicii it was givoii. After oxucutiiig iirojierty for advancfs made liy tlicin ti) l',.. -n I
this iniirtg.ige, T. found that a ileed from the sheritl' afterwards Mei/ed uudcr (In. Hiit n i [''I
flefiMld'Ltlfs t.o him u-;ik in s<4;trv.' f.ii irivellifll thi; tu'o tnisf.f>f*s forll.-lde the h;iIi* • l..,t :.'' ' '^1
defend iMts to hii
legal title, am
was lueissarv to give him the two trustees forhade the sah' ; imt it « .
got the deed in (piestion. The and one of them lioiight the giioijs, :i,„| . ,;
two nioitgages were not diseharged until the liill of wile from the sliiTilV, aijaiiist mIkh ".i
Kith August: Held, that if the mortgage had then lirought an aetiou for thr siizm. . li ui
been clelivered liefore ihe ileeil (wliieh the faets that they were nit estoi(|ie(l li\ liiviu • ■ ''
did not sluiwl, tlie defendants would not have at the sale, hut that having taki
been liali'.' on the ground of estin>pel, for the
esto[ii(el would apiily to '!". only, not to defen-
dants. '/'//' '/'mil mil/ l.ixiii Co. V. Ciirtii it til.
'.VI O. 11. -i-i-i.
In trove
mother as
II. In Pais.
1. Till' hi /'rii/iirli/.
(;i) ' ■ ii/-<.
where the plainlitl' sued liy his
lis ne.xt friend, the eourt held that
the latter, by allowing lierseh' to be made guai -
dian foi' bringing this suit, did not wai'e any
right she might h.ive had to thi' g Is sued for,
and til, it the eiiusent of the mother to bt.'eolne
ju'oihiin ami was no legal estojiiiel on her.
/linbr v. Tnfii r, .") ( ». S. .".70.
A landlord, \\ Inn sued in tresii.iss for aii ille
iii'li'^l
I) till- iijiii'. I
from the widow w hile tiie wrii. wa< in tb, f'^t
ill's hands, they eouKl not alli':,'e tint the' i^
were not then heis : and tlu ivlnic ^\^;^^''
could not reeover ; Held, also, th it tl •
creasi' of the stock nnist he s;ihjf|.( [,, (i.,, ,'
rule as the stoek. /'m-.i rl ,;/ y ,•, '"
ii. IJ. •_'-2!t.
A bailee of gonds lield unt est,,j,i„.,| iv,,,,^;
|.uting the bailor's title. tV/iii, ,i „; ,. i..'
!•_'(,>. 15. 477. See MrMii/ur.i v. 'ir',,;,; ;)(' h ,
I'laintill' liad sold certain l'oo.Is t.. M „|,.|
were at the tiuK^ lying ;it 'leli-ii.j ,iits''|.,,||i'l
station, and defendants were in"
■'II I
sale, hut notwithstan ung tliey niiitru-ti'
the iilaintiirtoeari '^and deliv
gal ilistri'.ss, is jpreeluded liy the ilisti
Irmn
bill
elaiining the goods as his own miiler a prior
of s.ile. Ilililix V. < 'riiirj'iiri/, N (,>, H. I.'m.
A. by artiliee obtained ,iii order from I!., direr
ted to iiis agent, to deliver wheat to A., u iiii h
order A. id'eselited, not to the agent, but to the
deleiidant, a whirlinger in whose warehouse H.
had wheat. The deleiidant theieiiiion ga\e liim
his eertilieate or lion for the v. lie.it deliverable
(in demand, and A., .after notiee by defendant
that he would not deliver, transferred his riglit
to tile \\ Ileal, but not the eertilieate, to the
[iliintiUs : Held, that (leleiidint wa.'' not estop-
Jied by his eertilie.ile from denying [ilaiiitills'
title. " />iii-U 1 1 III. V. /liiiiriii, !» (^. l!. MCb
Where the sheriil under a li. fa. seized and
sold eertain goods elaimed by pliintiil's : Held,
that tile f.iet of one of the plaint'tls ha\ ing at-
tended and bid .it the .sale, did not estop ilieni
from eomplaining of the sei/uri' of the goods .is
their own. /Jiii.i<l n/. v. Unnnji, 12 t^. H. 'JlMl.
Tile owner of goofjs may, to prevent them
being ■■.lerilieed, liliy them in at the slierills s:ile,
uhirli lilies not deiMi' him from setting up his
title against the slierill' lor .selling. //i.e//'/ li
III. V. Miiiirii, !M', r. 4(i--'.
In tresjiass against the slierill' for seizing an
engine and boiler under a ti. t.i., it w.us held that
the pl.iintili's, hiving pnreliast'd them as chat-
tels by verb.il .sale, wt^re t. stopped from asserting
that the e.xi'eutioll did I'ot .iltaeli bee.ium they
were part of the re.iltv. Wnlinii v. .InrrU, \'A
ti». K (ili;; 14 (). li. (i4(>.
One \V. devised all his personal estate to three
trustees, of whom his widow was one, in trust
to jiay the interest and prodiiee thereof to his
widow during her life, for herself and his chil-
dren. The widow .ifter W'.'s death remained
laintill'to carry and ilelivirthtiii as n-i! '
and g.ive him a shipping liill aci.i,r.[iii..lv
an action by pl;iii,till' .ag linst ih.|',.|i,l;i|,tri'„'| .
non d.divery : Held, tliat del'eiKl.ints ,.„uMm
set up M.'s title' to the go(;ils as ;ii.';iiii*t tU
plaiatiir, for a bailee settil:;, up the "iiuli'
third |ier.son against his li.ii|,i|., must i„ ,
liile dcfi tiding on the right ami titi.. u' „
third person. lirill v. Tin- Uniinl Trmil' I'
(■>., -20 r. I'. 440.
Tlie slierill having seized g.ioijs iihJ |. ;, r ;
received a written notii e in in tlie )ii,iiiitit!;y
tiler.: w.,s then due to linn ■'one li.iji veiw'
for the premises, not stating \i hiii thi' r
line, nor for what jieriod it wa.. rLiimeii
lilaintill afterward.- wcit to tlie slirnll', ainl
.iske.l when his rent fell due. s lid tli.i" li..t|ii,iiJ
it wouhl be It: l/ii- j'lilliiiriii,/ .]/,,ii.l,i,i „!■ I',i,.,(,fi
Tile slieiil! the'l'. upon ordereil Iji,.
reneived and sol'l : Held, that tlir |.|,iiiiliili
iioiind by his o.vn declaration, ami iimlilrK,
nod.iinages from t!ie slierill', .iltlim-li itjip^.j
that tlu rent was in f.iet [layalili- i|ii:irti.rk.
that one ipiiirter w.-is due at tlii time nf.siia
'/'iiiiiliii.i'in V. ./nrrf.i. 111). 15. ill).
It. bein
111
in.leliteil to I, giv,. mill .uiiati
mort;,Mgi and eoiife.<>i( f jiiik'liitiii, ;iiil ,)(
the iientg.ige becime due ni.nK. an hs.mj.'I!i«
for the licnelit of creditors to \V. aiiil.'>, «
took po.s.session of the goods. I,, thdi lull
writ of ti. fa. in the sheritl's liaii.lMl:r,,tif
him to levy ami make tli.' .iiiKiiiiit nl iii<
out of tliegooih, of I!, ; Iblil. that tliiiii.t|
I,. h.Hiiig put ;.n e.xe.'Utioii in the shinrtMiii
at hi^: suit, directing to h.vy ol tl.t i; I»iij4
gaged to him .IS the goods of I! . iliil ii"t i
him from setting up ins title uiilir tik iliit
mortgage. Wiihlii lil v. /,//io(, ,"iC. |', tjii
.■Xssunipsit for g Is bargained aii'l i»\\
the plaintitr, as slierill', totlietli.:iihlaiit: Hi!
that the defendant coiilil not set ii{i as a'liiei
that the goods piireli.iseil by iiiiii a.s lulmi:!!
the execution debtor, I'.eie in lait li;>
llHlton V. Wi-llir, 14 (). U. 44.
on his farm, and in po.sse.ssion of the Htoek and
person.il jiropeity, some of which she Hold, and i The iiluintilV insured with ilil'inilant.-a
the stock had been added to by breeding. An j as :ip]iiirten int to his freelmlil. .\ltir il
uxeuutioii came into the sliei'iti's hands against | burned, ho m;v<le a claim iiinkr thr |M>lioy.
her, and while it was there the two other trustees i treating it as appurtenant to the I'rteUJ,
i*'i'
ESTOPPEL.
I2i;2
! of -M tli(: ,,^.rv,njl
;1>y tlirriLtnliiT. Tr,»|
iilcr till' w nt, ;iii.l t|i,|
<iilc ; Imt it \M.iit"ii,I
;lii' ;_'i>oils, ai\il ti-.'jJ
tV, :iu:iiiist wlii.iii n,,,!
r tln' scizur' ; ll,j,i j
il )iy ll:ivill(iliill' ii.„^l
J,' taki'ii till' iii..it.i.il
• writ w:is in tl,, ,,.'jj
, !illi':;i- tli:it till' .M.,y
I tli.Ti'liirc tliiit tii-i
(I, iilM), tint the J
l)t! .SIllljlM't t'l till,' Mini
.■I (■/ (tl. \. I'ltn-'il!
I Itiviiis
lint I'Stnjuifil fri m ,'
Whit,- .1 „!. V. /;,, ,
'n:i V. '//■..,■.,■, ;U'. l'.„J
ilill yuiiils tn M.. wlivH
ilt I U'lrllil lilts' riilwij
,VIT<' t'illlv IHiiri- u\ ti«
'j; tlii'V luiitiMctnl viit|
li'livcrtli''iii;is rii|im'.^
ij.: Uill ;icn,r.llli-ly, ||
lilisl ilrl'i'Uiliiiit-
i;it ili-l'fiubllts 1 .
u; L'lH'ds :is :ii.';iiib', ;!ij
ittir.;, ii)! till' riglr
if- li.iiliir, iiiii<t li. I
rij;lit :iii4 titi.-.
'I'll, ilniiiil Ton:':]' i|]
l/.uil g'lixls Ullll I'll 'i. ill
e in ill tlic |ilaiiititl:ii^
iiii •'iiiiu liiili yww'
tatiii;{ \*l^'ii till' r-
III It \v:i> ■.■lulliifil.
,t 111 t'lK' slll'l'lll', illhlWll^
(lllr. s liil till' lli.'t'.iiiilif
\ir'illil M'^iclihl n(- f*..!-!
iiriliToil till' i;iiiiilstii
fill, tliat ;lii' iibiiililtn
linitioii, ami luulil mn
liTilV, ,ittlriil.;liit.ililii'al
c.'t [Kiyal'li- i|ii:irtirly. J
HI- at till' tiiiif "•' .. null
( t. li. •'.!!,
1 I, ;,':ivo iiilii iiiiiitl
L III' ii|il<,'liitlit, :ilil ill
lui' iiiaiK' iui ;isM),n!iiii
lililois to W. amis,,
i^immI.'*. L. thru liOH
|slllTitl"-i IlilllilMlmil
th,' aiiiiiiMit III liiolil
: lli'M. th;itllii,'i.i<.'t|
litiiiii ill tliesliiTillsIa
In levy nl' tl.c L'i"«lsn4
lioils rl II . ill'l lint riU
lis titli' iiii'lir tikiliii^
|v. I.;!"", ■''' ''■■'I"'
s li:iruaim-'il :'"'' *"'''!
tn lln'il(:i'li'h"it:-1^
ilil lint stt ll|iiis;iil';«,
III liy iiiiii xs ln'liiiWiJl
r.i'rr 111 l:i''t 'i'-*
U. It.
1 with ili'li.'11'bnt.-slJ
friM-linlii. AmtUi^
Liiii iiiiili,Ttlii'l"'M:,
[liUll tn tllO iKMi\
fniliil i" l>i'<'viiig titlu tl' the I'liiil, ho
I 'lit til ri'invcr 1)11 tile j,'niiiiiil tliat tliu liavn
I '"' i i.'li:iltrl, iiiiil II'* Hiii'h iusuivil liy liiin : -
Ih!iiI iltli^llill^' thu jiiili,'iiuiiit Ih'Idw/.'U) (^ H,
I" , ji|.,t |„. was inccliliU'il I'rniu setting mi such
i nil i'li'l '''•''^ ""'' l'''""t'f' ^'""''' ""' ''-• '"eanl
* ' 1 till' l'"'" "''*• "■ <-'i'i'tt'„'l. S/iirliiiii' (i>i V.
\fCll.,vrM"'"i'H-""-' liistirnnnC,., .TM,). li. 1.
\j>niii|isit.nii aiiiitv' iirule liyilet'emlaiit inilitly
,t| \ ;illil 15. I'liM, tliiit the iiiitu w.is given I'm-
I *,' j,|.,.l,;,so liinliey lit' .1 sehi.iilicl' Hiilil liy lil.lill-
lltftiiV nil'' "■• 'i«'li''"'''i"t ''eing their stiivty ;
It'hit till' I'lii'"''" "" '*"'^'' ■''H''^' >,'il:"'''"t<''''l *!>'■
I ^.1 til lit' .'niiiiil, li'it she wa.s nut siiuiiil, Imt
j !*',,. aiiil iiitteii. as jilaintiir well knew ; iiml
I .,,i \ mill l>. iniiiieili itely after the sale ilis
I ',^'j,| till. iiiisnllllillU'SS, retunieil the vessel tii
[lil'iiiitill '""' '■'•|""'''''t»''l till' ■'^^I't-- -^t the trial,
Itj.writtfii iiistiuiiiiiit w;is iiniilileeil, Irnlii
L 'iili it .liipi'i'l"''' '■''•■^^ *'"' *'"' ^^'•'•"'' *" '''''''•'
Ijjilt ;lliim', I'lll'l "" "1"''' gll'll'i'l'llee lis .■illeg..,l,
J ,,,.„||t:iiiii.il in it. Suiiilile, tli it the iletemlalit
Liul'l M"t *li>'" . in the t'aee of the writing ,ii'n-
jl 1 tliiit the sale was tn A, ami I'.., imt tn
IhLi!. //'"'/"'•■"'" V. '^>llrr, !.-> Q. 15. :U.-).
IVuuliiit vv>^iit tn I'.ngliiiil. leiving A., ai.
1 a' lit. I'll hi^ t'.',''iii, wliii imi'i'liaseil enrn tnnii
|»h, Uintill tn I'eeil ileleiiilaiit'i lattle. Mxeni-
' 111! i--iiie.! against ilcteiiiliint. ami A.,
I t lit the lattle, iissigiieil them tn the lil.iin-
I I 1 1 li.iv the sii'ii line to him t'nr enrn, Imt
L . it tlif same titni' an iimlert iking that he
hH|ii,v i.astur.igi- I'nr then' iittlie usual rates ;
liciiii the hailill' eame tn seize, the |il lintill'
(jjii'kii tliu lattle as his nwii : Melil, that he
taiil lint at'tii'wai'ils sue ili-femlaiit t'nr the pas-
W, . fir having eniieiirreil in the Irainl hy
1 lilt the eattle as his nwii, he ivas estn|i-
■;/, V. /■'./, 1.". (^ U. rilll.
! Inaiiiictiiiii ag.iilist thesherill' I'ni gnmls >ri/|.il
I, till' jury having twi-e fnimil in |il lintill's
kviiiir; Ih'lil, that althimgh it si-emeil elear
J till' iiiiliin;e that the jil. lintill' hail never in
let iiiinlnseil IT paiil t'nr the gninls, lint h ul
Lii -it ii|i a>. a piirehaser 'ni;rely tn prnteet
Itmiriiiii "tlur iieilitnrs, yet as H. it Cn., the
ttiltii'iililiiiitiirsaiiil the real ilefeiiil.'ints in thia
Kimi. Ill'l iiiii.-'i'.rre'l in hnMiiig him mit in false
l-tfV, tlh' I'lllirt shnlllii lint interfei'e. ''('//</•
_. < V. .1/(kh/(i, I."> <,». li. (JOI. The enlirt nil
IjHil iiitimitoil that they tiilly emieurnvl in
|t\ii\v wliiili tliLM.'nurt lielnw llnl heeli taken :
ii;iii. iiuti.' I'll.
lActiim aj^iiint the sherilf fnr seizing ami sel-
Vgiimls. I'll' IS, net guilty, ainl imt p iss.'ssnl.
laiijiiiiiiil tint till' pi, lintill' liail innrtgageil tli,'
►Tt\ til iiiif M., ami exii'iitimn e.iim,' intn
.slii/nlf .< li iiuls linth a^'iinst the jil liiitid',
I Ml ill |i.nse>siiill nf the gnmls, aiel the
liirt.Mni'i. The iilaintilV tnhl the sheriHthit
Ill's wii'e lint his, Imt were uiiiler mnrtg ig-:
JM. ;iiiil till' f.lierilV si'izeil .'inil snhl iimler the
Mitimi ly.iiiist M : Helil. tiiat the plaiiitilV
_ .1 lily imt estnppeil friiiii reenveriiig, liy
Itiii,; tiilil tlie sherili' tli.it the g Is were nnt
y tliiit is, imt his ahsnliite prnperty hut
fcrt.';ii;ii| til M., fur hi tnhl niily the truth, ami
y .slifriH' ki<L'\v what M.'s interest really was.
Y^'mns. Fm-luni', IS Q. B. MO. |
|Illtre»|i;i.ssng,iiiist the sheriff fnr taking gnmls, :
S lilaiiitilt ciiUud tllu kiilitl' whu inaile the
seizure ami sale. He swnre tint the plaiiitilt',
after giving lintiee nf his elaiiii tn the gnmls,
withilrew it, ami that the sale then went nn.
The plaintitl' nll'ereil tn ilisprnve the witlnlriiwal.
.•^einlile, that if the pl.aiiititV in faet witlnlrew his
elaiiii, anil thus imlneeil ilelemlaiit tn prneeeil
with the sale, wliieli w.is fnr the jury tn ilei.'iile,
lie wnllhl lie estnppeil fl'nlll r.'invering. Itnhiii-
■otii V. h\uiii.,!,/s, -SA i). li. .".CO.
The exei'iltiiili nf ilefemlant in an iiiterpleailer
issue Itlie exeeiitinii pi lintill) lieiiig ill the slii-ritr's
li.iiiils, the father nf the exeeiitinii ilehtnr el.iiineil
the gnmls, wherellpnii the slurilV liy ilireetinll nf
ilefeinlaiit's attiU'iiey withilrew. Tln' pi liiitid'
(the el.liiniiit in the issiiel siiliseipiiMitly pi leeil
;iii exeeiitinii in the sherill's himls ag liiist Imth
father and smi, when the furiiier gave him u
innrtgage nn the gnmls, uliieli the snii h ii I as-
signed tn hiin, and the pl.iiiitiir theienpnii with-
drew his writ, and si'ver.il iminths .ifterw.il'ds
the sheriti' agiiii seized iimler det'iiid.iiit's writ.
There was iin evidenee that delend int kimwingly
either did nr said .nytliing tn indiiee pi liiitill' to
alti'r his pnsitinil. The jiiry were tnld th it if
ilefeiidant al>iiiilnii"d the seizure, and in eniiso-
i|ileiiee t'lie pi lintill' withdrew his writ and tnnk
the nmrtgige, difeiidaiit w.is estnppeil frniii dis-
puting tile v.ilidity nf the innrtgage : Held, a
niisdireetinii, and that there \\:is im est.ip[icl.
.)/-.;■.•» V. T/i'wiiiM.ii, l!M'. I'. 01.
The pl.iiiitill' liiing in pnssessinii nf a stnek nf
gnmls, W.IS assessed theiefiir in his nwii ii line,
.igiinst wliieh he appealed tn the Ciilirt nf Itevi-
sinii, ,iiiil tn tliel'imnty Cniirt .judge, when .-ill
indenture i'i assignment ni the gnmls tn niie U.
.M. upnii trusts Inr ereditiii's w.is prndueeil, .iiiil
the pliiiitilVs name was erased and that nf It.
M. siilistitiited theret'nr. The jil lintitV alli'geil,
liiiwever, til it his n iiiie w.as nnt struck mit on
his applieatinii, for thit his grniiml i>\ ap|ie il w is
that the gnmls were Imt eipl ll tn tile delits dill!
lipnli thelii, .and sii Were exempt. hiteiidintH
llivilli,' ilisll'.ilied llpiin the gnmls, the pllilltilV
replt^vieil, and defendants avnwed as fnr taxes
due tn tlii'in liy the phiiiitill', wlin.se niine did
lU.t appe.ir on the enlleitnr's rnll. !t Wis enll-
teiided til it the pi lintill' ll i\ illg denied his title,
and his n mie lieing er.ised finin the roll, he was
deliiri'ed fi'nin replevying the g Is distr lined ;
Imt -Held, that he was nnt estiijilieil. Suni'iut,
v. TIk- ('ill) n/Toriilllu, I'.'C. I'. IS."..
ri.aiiititl' .ind ntlrrs tmik nut attaehmeiits
agiinst .111 aliseniiding del.tnr, and the gnmls
seizel l.i'iiig el'.iiiiid the pi liiititl' indemiiilieil
the liailill', wlin .suM .mil paid uwv tile mniny to
delend ant, th ■ clerk nl the hivisimi ( 'mill. Till)
eliini lilts sued the pi lintill' and the imicti iser.s,
and I'ecnvered frnm tliclil th • V line 111 the gm.ds,
after which dcf/iid iiit distrilmted the inniiey
aninllg the ,ltt uhillg ereditnis, nf wlinili he him-
self W.IS one, pro r.it.i. I'liintiir tliereiipnii siieil
ili^fendaiit and his sureties as fnr innliey reeeiveil
to his us,', ((liiarc. ]i'r Hagirty, .1., whether
the pl.iiiitiir. having iirneiired the nmiiey tn hu
paid tn the di'tend lilt as that tti the attaching
creditors, eniilil afterw.irds elaiin it as his own.
I'n^h.i, V. ll'/'/;/ii.r, 2;i (i. Ii. ;J4H.
Ill an action for seizing goods under Division
Court attaehnieiits, it was proved that a few
days liefiire the seizure the gnnds had lii-eii solil
hy anetiiiii under the ilireetion of one of tho
plaiutitl's, who exeeiitud ii hill of salu to the
12G3
ESTOPPEL.
m
vemlt'i', Avitiiesscil l)y the .inotionecr : -Huhl, I nwii or ol'iim them, ami only sold t.i tlif iiliirtif
tliat this pliiintitV cuulil imt afti'i'wards sut up ' the iiruiiiiMus ■withdiit tliuin ; ami ih.it th,. tj';
tliat till' sale was void lifuausc fraiiduloiit as titf'hy reas(.iial)lt; c:iri' tduld have ' •■'■""
against till- )daintitls' ort'ditors, and maintain tros-
i)aKs fdrscizing thi^ gnodsas it' tlii'V wiTi: his own.
Mi-I'ii(iit,r 'I (ii. V. Li<i:, ,1 ill., •_>;{ (^ II. .")7;{.
Two mill stones were seized ami sold for taxes,
tlie tiiimt of tile mill, wlio was assessed as ocen
jiant, lii'ing jiresent at tin- saU' ami makin
ohjectioM. In replevin l>y the owner <if the mill
iigiiinst the (luri'liaser : Held, that the tenant's
aeipiieseenei' was innnaterial ; tor his possession,
Avhen proved to he meiily as occupant, was no
proof of (property, and tin' pl.iintitl' therefori' wa.-.
not prevented from disputiui; the s.dc, which Wiis
ele.'irly illegal, the stones licing i>ai i" of the mill.
(Ir'iiiiiliiiirr V. liiiniliii III, -."i (,'. M. 117.
• ml,
' '•''t'lKlCil Jul] I
information from defend.mts, Imt iiu'liir.,,! I
omitted to do so: lleM, that tin: rcn'lj't ''l
was good, and the rejoinder had. /'/v i/u
(lin-iiiii i-t III., -Mi (.». ]i. Xi. • •'"
If the true owner of goods so ( ..ndiut Ijinw:
no as to enai)le another, who has tljc i.ii,*,.,;,,,,
hut not the jiropci'ty, of sueh gcmds. i, ;
him.stdf out to the \Mirld as the niil l,^^ , .
true owner is esto)p)ied from clciivin^' tl
an innoeent purchiser for value. '\'\\,- ,,
of jiroperty attached tn the redty. wlii,!, tliir.l,
heeomes realty, is asiitlicient imli'.'iticpn dfn,-,,,,;']
.sliijp t<p estipp the real owner as a^iiiist aii imJ
cent purchaser f(pr value. .Mr/hiiwlfl y \[
S ( 'hy. -J!):.
An insolvent ])ersipn spiM his liui.l t..lii>i,f,„
ther : a creilitor lileil .'i hill im]pciiliiii^, tlip
;is fr.iudulent ; [lart «pf the i sidij-.iti.pn mi«sii,|
hy the (h'femlants ti) Ipe a piir ipf li,,,,,,
wagi,'cpn (pf the valu.' ipf s-JCX); l.ut tli,. jp.irti.snw
fraudulently given (PUt after tin' sil- tint tli.-
hipl'ses were still the horse." .i[ tli" liMth,.
iiail hiPULdit the land, ami in thi-iw.w
the plaiiitili' and (pthcr > reilitnrs : Hi-M. ly
this hrotlu'r was estop]pcd from aftcrw.inl.-M.ttii,
up airiii'st the creditppi- that the s-.'(H) ii,,]!,,
jp.upI in that way, ami tin.' plaiiitill's .k'lpt l^jm
less than that anepuiit, he was Ji.M ciititlol t<
dei'ree fipr payment, ipr iii default ;i sale nf tk
laud. Mi-Ciirli/ V. .]/r.]f,ii;-iiii, IS ( 'hv. iKH
'!"he plaintitt went to Kritish ( 'cplundpia nine
years hei'ore this action, leaving his wit'e here t(P
wliom he wripte and (pccisiipually sent money.
She pnpcuri'il the def( mlant to endiprse a lupte
made I py her for the prici' (pf fuiiiiluie tip carry
on a luparding house, i which she suhseipU'Utly
eurrieil (Pii with the ]plaintiH"s Umpwlcdiic, | and
oxei'uted to delei plant a ihattel impltga-e under
seal in her <pwn name ipii said furniture. The
rent of the iiipuse heing in arrear, anp| ]part ipf
tile niiprtg.lge niipuey over ilut', the l.in;ilpprd 'lis-
+raim'il, and the ilefenplant enfiucepl his mort-
gage, and till' [il.iiutitr's wife not dissenting luit
rather iissciitiiig, the goods were sold ,iml the
balance, .'iftei'the payment of rent ami mortg;ige,
was h iiided ipvei' to her. The plaintill' therciiipon
sued the defeiid.int in trespass and trover:
Held. tli:it :is hy this :ii tion the pliintill' r.ititied
the conduct of his wife in jpurcli ising the furni-
ture, he should liipt he allowed to repudi ite the
mortg ige, which formed part of the whole ar-
rangement. Scinhle, that the wil'e stimling hy
and ipcrmitting the sale of the j'l'opcrty tnider
tile moi'tgige, was some evideliee timlei the [)I. :i
of le;ivc and license. //nl/'i iimi \. /'riiiiur/:, Xi
Q. i!. ■-••-»•.
Dcclar.ition, that ilefendants heing in ; os.ses-
Bion of certain premises (desciilu'di, :'.s tenants
of the |plaintiti', wrongfully )pullcil down and
carricil :iw.iy eertaiu lixtures. ','le.i, th:it tlie
premises were oecu)pieil hy defendants as sc.ile
IimkerH. having long hefore Ipeen let to ih-fcn
daiits and others for c:iri'jing on the''' traple :
that deii'ud.ints and others, for sneh pur,'osi',
<luriiig their tenancies, put ujp the lixturis (de
serihing the lixtures ]put uip hy eaehl, and the
otlieis, during their ten.'ineics, sold ,'iiid conveyed
their part of the lixliiies to lUfcmhints, who tipipk
possession theieof and used them on s:ud prem-
ises in their trade ; and heing so p.pssessed, they, from tlu eonstruetion ipf the loail, ainlet t'.TH'vJ
(luring their tenancy, pulled down ;ind eiirried he .igreed "to :illow and |pp'liiiit tin- mi! ■ 'liil
away >.iid lixtures, doing no unnecessary ilaiii:ige. paiiy forthwith to take, occupy, imps<i<s, mil
The third replic:itioii .set up, hy waj of estoppel, enjoy 'f .md through" the land is ■iiii'>ti"ii. Ill
a surrender in law hy defendants of the prem- apipcared tint the phiiiititl' had im title t"th«|
ises to ipne ('., the then owner in fee, and :in l.-iiul, Imt had merely heeii allowed liy lii- lillia
aeee|it iiie(! of a new lease from C, and that ( '. to oeeupy it ; that he l.:id admittiil iii iin-'i
afierwards eoiiveyed in fee to the plaintitl', who ipf his father that it wis with liis father, nil nil
then saw the new lease, and wa.s informed and with him, tlnit the eomiiauy umst -ettK ; ;mil
believed that the said lixtures formed part of the that he iiad worked under tlie defiiiiint. •i'"iij
freehold; and that defendants afterwarils heeame tractor with tie e(pmp:iny, in uiakiiiL' tin iir'I
plaintitl'.s tenants. Koiiitahle rejoinder, that he- along the lim ihrougli thislaiid. Afteith' 'i^W
fore the eoiiveyanee liy ('. to tlie plaintitl', the the plaiiitiU' andliis father forh:uk'tlii.'ileleii'
plaintilV knew that defendants were in actual from entering. The defeinluit oiitereil in Ivj
oeeupation, elainiing and using all saiil lixtures eeuiher, 18ri2, for the purpose of making tin i
as their own, aud was told by C. that he did uot way, and the fences along the line ln'iiiL' n^'^A
(h) L'lii.h.
.VssunilPsit for money lent aiel iii.iiiey Inl jiull
reeeivi'd. (Mi the (itli of Septeiiil.ii', ISv;. tiiJ
wife of the iplaiutill'. with liis assent, in np|>j,lHr^
;ition of t"7<> paid (the money IpciiiL,- the pru
of the s.ile of her l.iudsi, olitiiiied fr.pin tl|p-.i«-
fimdant a le:lseof ccitiiii premises tip ImM t.li
own us,, during her natural life, the ileleii.laiiH
I. ivenaiiting at the expiration of the lei^' tj
[iiy IliiiiiKii llii.ilii, litii:<, (II- p(.v..;,^,n^ til.' -Bin
of t'.'iO : .leld, that the pI,•lintiH".^ renieilv
entitled to sue for the t'.'ili, mn^t lie uinlirttd
le:ise iii an action of covemiut , :uid tint li:iviij
asselltcil to tll'J cleinise to his \\\<>', he e
now sue for the eonsid^'r:l^i■■ll iiiipiny iPinl.
nionev had and reei'ived to liis n- ■. //■ ■'
IliiKj'iinl, 1 ('. I". -J I-!.
l>n the L'dth of Oetohcr, IS.".", tlie Bii1'il":iii.||
Hr.nitford .loiiit Stock I'lilroul Co. tniik a i
from the pkiintiU's l';ither, bv wliieh. in inn
I'l'ation ipf the heiielit.. liich wouM re'^ultt'ihii
ly«"Mt..tlii.,,i,„„„|j|
; iiiiil tli.it tli.:i,i,u.r
111 llilVl' ill.tlili,..,l;,,l|l
Its, iMit iie^li.,,,,-!,]
tli;lt tlh- lV|,li,„i J
erl.iul. /V, ,,,,„„, f
iIh so r.,|„l|U.t |,|,|,.,lj
• lias tlU' |1C1»SI-<.1.,I;
siii'li .yiiiuls, t'l !. .;
» till' I'l'lll iiwiiti; t|i_
111 ili'iiyiiii: tlii:tiili„i|
.•aliii'. Till' iii,«„..v ,
I'cilty. wliiolitlii-r.ly
it iii'li •.■itiiMiiirnwin.r^
.■r as airiiii-t aiimii.i.
M'l> './v. \\:.[,\
ll llis l;ill.l tullisLrrK
II illllHMl'llill;' tlnMlJ
L'llllsiiliTatinll \vi«.iii|r
a ji-iir 111' liuiM., :iii<||
O; liilt till- ji;irtii's!i:ii|
IT till' s:il" tint tli.i«
'.r .-.t till' lii..tluT»ii.)|
ill till'* w,iv hill i
iviliti.rs:' \U\-
Vuiii afti-iwanl.-M't!i|
lat tin.- s-im h:i,l l..,j
' iilaiutilVs .irlit Uiij
was llrl.l illtitlnlt'i
ilcfault a s;ilf ..i th^
'/■/•r(i/, IS ('liv. 'illl.
iit aiiil iiiiiUfV liil jiiiH
Su|iti-iiilii'r. IS4';. totl
Ills asM'iit, ill i'iii>i(|-r-|
iii'V lii'iii;; tliu Jii"
lilt liiiril trmii till lie-
I'l'iiiisus til Imlil t'ilk-rl
ral lil'c, till- iK'tVii'lantf
lat ii 111 lit till- k'lM- ti|
, III- .(...-/■;(;i<, til'-
|ilaiiititl"s iTiwili. ifl
.")!), iini>t \k- iimlir ikj
liaiit , aii'l tint luving
1 his «;!'■•, Ill' 1- ■">(
imi iiiDiii'V (Liiil. lira
itii llis iisL'. /A '■' 'iJ
IS.-i.-, till., llu'lll..:*!!
111-. ml I 'll. tniik :l i-
li\ wliirh. ill I -i'i^
■ll wiiiiM ru<iiltt..liini
lail, aii.l..tt:-':il'J
])i.riiiit tin- s:iil."nij
in-i_.U]iy, piis>i-*.-. .iiiif
l,-illil i ; .iili'stii'li.
Ill' hail 11.1 ■,iili.t.'th«|
alliinnlliylii-tatliel
ailniittfit in jin
lith his I'.-itlaT. aii'l wi
liiv iim-^t suttli' : anil
[till. lU't'i'iLhiit. ;ii"ii|
ill iiiakiiif: flu' iini^
llaiiil. Al'ti.rtb.ili'fiy
|f(irliailL.tlicik'ti.".l.w
liilant tiitiTfil ill l'«J
l)su of making tkrail^
ltheliin.'lieinL'iMu4
125J
ESTOrPEL.
nt tlieplftintifTs wheat was injured by cattle
".. jL ill. j.'iir thuse iiijiirie.s lie .sued in this
vtiiiiiiit tresp.irts iiuie;-ij ehiiisipii fre^it :-Hel.l,
, , 1,11 lejr,-il i,'r(minls, iiidf|i(.|itleiitly of his own
lint, H'liii'li i" .jiiftiee should eMCop him, the
Yjiitiif cull 111 not maintain trespass ai^.aiiiHt any
' ■liiii.' iiiidei' the eoiiipany; for he was not
iiiv time iiioie than ,'i tenant u will, and the
'l ll iictcriuiiieil the will and left him tt'iiant at
.1 fj,n.,.iiiilv, with a riL,'lit to enter and remove
\Cn^- .v;/.-." V. roo/.-, i-.'(.». I!. •.>•_'.
.p„.(;r,\iiil Trunk Itailw.-iy ( 'o. passed throuj^ii
■frtain liiiil "' whieli ( '. wasownerand the plain-
Itili'.iti'iiiiiit fill' years. In I .S."),'{ an arliitratioii was
th l(it.iik'ti;riiiiiii' the sum to he paid to( '., and the
I I jiilill lioiii^ api'iiinted arliitr.-itor on liis liehalf
[wniumil ill ll'•^kin^' an award, .sayiii>,' nothing
jjj,^ii„f;iiiy claim on llis own Jiart ; but in I.SrM,
twK tlwii six months after the eonipany had
foil iHWscssion of the land, lie lironi^'ht tres-
,_j aLMiift them. Semhle, that the jilaintill',
Kiciinihiot, had estopped himself friiin m.-ikini,'
Lnvcbim against the eomiiaiiy. JHlur v. ilrniiil
iTwHi'. '■■■•, 1'>Q- B. .5<).-),
IX-ieinlaiit had been tenant to the ]ilaintitrs at
, Vf.irlv lent, iiayable iiuarterly, for a term
tL.;!i txpileil on the 1st .Inne, I8.V.(. About
ijl tiliiiNi new lease was a.i^reed upon between
ihfiiiataii ailv.ineeil rent, but none was e.veeii
i.iviii" til iibji-etious raised liy defeinlant to
IhtJral't. defendant p.iid a year's rent, an. I
iii,itliiri|U;irter liaviii,!,' fallen due, the plaintill's
fetraiiuil. but they afterward.-; abandmied that
'Wuvliiij:, and on the 17th Sei>teinber, I.SdO,
ttkfiiliiiiitltlV attiirney ser»-ed ii written demand
i.,>si.ssiiiii on defiiidaiit, who told him that
ti<i!Ht«iiat he wished, and that tii.- plaintill's
fc . : Vivi- tlie plaee. lie refused, however, to
.1- with the attorney and i,'ave it up, say-
iliiatlif wished lirst to remove some things.
fiii'Liii:; iinire was done, anil the plaintill's three
,- ,!tiT liaviiij,' brought ejeetnieiit, defen-
-, ll^i■lu» ileiiying their title, elaimed to
iliaitlu-ii- teii.int : Held, tli,-.t the plaiiitiU'.t
^eri-iiititk'il to reeiiver, for, i. I'he ilefendant,
bviiigili-iiii'il tlii'ir title, eoiild not insist upon
kto til i|iiit ; ;iiiil '_'. lie w;is (-stopped by his
Ulcrt.ili-ivi' the plaee. ('iirhi'i-ljlil v. Mr/'/a r-
^. '.1)1,1. Ii. 'J.-il.
In ejectinunt by the souH-iii-law and dangli-
iiK 111' an iiite.state, io reeover [lossessioi; of
ii.l<s.ilil luiil-'V an invalid Ii. fa., it having ap-
nriA tint the former, being tenants for life,
1 siigifi'stfil an. I urged the sale' in (lUestmn for
■.•irimii liwietit ; and tli,-it the party, (a eredi-
tiw I'state of the intestate,) for whose
Itnrtit tin- iiif.-iiiled eonveyaiiee on siirh sale
^s.< mail.', liiil i-iiaiigt^d his position, and had
mwii-'l t!i - i'lilgiiieiit iiiuler wliieh the sale t^-'nk
iaa. i.ir till' lieiielit of one of the- male pl.iin
s.aii.l.'it llis reijiiest : -Held, an estnppel in
>wliiilili;H-reil the male iilaintill's, partieiilar' ,
Kti-r iIk- hipue nt m u'ly, if not ipiite, twenty
•Mrs imiii ili»iiutiiig the validity of said eon
|fya:i.i--, iiihl that tin- bar was not removed by
Mriiaviii;' jiiiiicil llioir wives with them in the
Ittnii. ill wliii-h the validity of such eonveyaiiee
'|iii-stiiini'il. .Semble, that there w;us no
|\i.i.ii.i- ..I niiiiliu't on the p;irt of tile female
ii'il!> t.u'Mtalilish ;in I'stoppol against them,
flH tint im the death of their liusliailds tlie
Illy vstiipinl ci-eated would euiMu to operiite
1206
against them.
I'. I!M».
in an aetion of tresp,-iss to Ijnid : Held, that
the plaintill', having sullieient possession to
inaiiit lin trespass, was not est()p|ied by having
brought ejeetnieiit, as being an .•idmission uf
defendant's possession. Ihi-k' v. Kii(i/,/i, '20 {.).
I!, aiio.
.\. entered into ])ossession of land under the
authority of and by permission of I!, who made
him a verbal |ii'oinise for a deed to bi' e.xeeiited
as soon iis he himself should receive ;i eonvey-
anee from .M., whosi! tenant .it will he was, and
who had in the meantiine died : field, that A.
having entered under iV, Ins heirs were estuplied
from ilisputing i>. s title, and that they could bi-
ejeeted bv i>. A nu.iti'iiini v. Asiii-itrDini il k/.,
•ii c. p. 4.
i>. 's father died in IS17, having lirst made Ids
will, purporting to devise all his real est.ite to
his wife ill fee, but this will was not executed
in the proper form, and therefore i>. became en-
titled to the land as heir-at law. 'i'liree months
before i>. became uf age, he agreed with I', for
the sale to liini of the re.d estate for valuable
eonsideratiiiii. \ eonveyaiiee to i'. was (ire-
jiared by i)., and e.xeeuti'd by his mother, the
devisee under his father's will, 1 >. being the
witness to it. 1'. .ifterwards sold and conveyed
his interest, and I), brought ejeetnieiit against
the purchaser. On a bill liled to restrain this
.letion, it was shewn that i>. had, at various
times acipiiesced in the sale after he bicaine of
age :- ileld, that i>. s eoiidiict with referciiee'
to th" s.ile te I'., was franduleiit, and was to be
eoiisiilered as .in assci'' ion that his mother was
entitled as devise ■ in fee, although he was then
not of age ; and that such conduct, and hissiib-
seipient acipiieseeiii-e after his attaining m.-ijoi-
ity, estop|ied liiiii from denying the validity nf
the s.-ile : and lie was enjoined from proceeding
with the ejeetnieiit, and orderi'd to execute a
eiiiivevance to the i>laiiitill'. the vendee of I'.
Lxti-i'i v. /.'.Mr, lOChy. MKi.
A tenant in tail, who was siippnsed to li.ive
the fi'e simiile, sold tin' iirupcity a few weeks
before the passing of the act respecting assur;inee
of estates tail. 'I'Ih' purchaser accepted the
conveyance, and ])-iid the p;ii-cliase nioiu'y, with-
out seeing the will or having the title investi-
g,-lted. 'i'he eldest son of the vendor was not
i|uit ' twenty one at tlii' time ; he w;is aware of
llis interest, but w.is anxious that the sale should
be ell'eeted, lll'geil tile liurcliascl' to buy, and was
privy to the eumpletirii of llic punthasc wilhnut
gi\ iiig any notice of his title or of the defect in
the father's right to convey, 'i'he pnrch.-iscr went
into possession aii-l improved the premises, and
had nil notice of tin- defect in his title until after
the de.itli of tile \ I'lidor : Ileld, that he was
;'nti;leil to hold the property ill eipiity against
the issue ill tail. Re ,Shiinr, 'A Chy. Chamb. 371I.
-.Mowat.
An intending piireh.-iserof devised lands, iloubt-
ing whether a pnivision made by the testator was
ill lien of dower, asked • le widnw u hctliei she liad
or elaimed dower : Held, that even if her ;in-
swer was in the negative, it aH'orded no gruuiid
for the iiurehaserapplying to this court to restrain
lu r action for dower, bi-uiight on her being ad-
viseil tli.it under the will slie was not juit to her
■ election. Fiiirweul/ur v . Arcliilntlil, 15 ( 'liy. '2iiii.
■V'lf
m V
pkmi
m
1367
ESTOPPEL.
Where for ten years ii wit'econeeaKMl fi'iini the '
public lier reliitidii to licr liiislnnd, and iilliiwud
lliin to live with aiinthcT wninaii iis his w iic
under an aHsnnied iiiiine, the nvil witc hviiiL; in
the neiglihcmrhoixl, and reeeiv in;,' troni tlieni la r
own suiUHirt. it was held tliat slie wis pii i liidici
from claiming dower out of lunl |iiircliased
during this |)erioil in tlie liMsliaiiil's assumed i
name, and atterwanls sold liy iiim and his sup-
posed wife to a pureliaser, hIio liouglit in ^ood |
faith, and without any notice of the nal nlation-
shipof the parties, j/nii/ v. (I'lirilfin, 17 ( 'liy. ."ili'.t.
A married woman, owner of red estate, re|>re- '
senting herself to he, and sellin;,' it as a spin
4(! ; and the mortK.'iged property was sril,l,.,,,i I
niort;,'a,i,'ee's suit, tlie two cousins .■liic'riii-, I
tlie tirst time that the mortgagor li.ul ii,i"n1 '''l
ll:el
rcsp<'i't of l(! ; tUv. right was <'oiisi(K.i', ,, ,„,
ful at the time, hut the purcliast^ riMniili.t","!,'
purchase; Held, in a sMlise(|iii',i| mik |,.. '
purchaser ag:iiust the Tuoi'tv'agor .iiicl ||is ,.,',11,
who owned 4(i, that the plaintill li.id 1 n..|,t'!'
overtlow 4ti. I!..,//, V. An,n/,l, |t; ('l,v, j-^|| "
!!y a deed duly executed and rei;ist( rwl l„ij
with a w.itcr front:ige were vested in a inaii H
hfe, remaindi'r to his son in fee. Tln' ilw.,! .
tained an agreement or stipulatinii that niX,!
party should heat liherty to dis|M,>i. „| „,.
ster, is not entitled in eiinitv to set up that the ; ^''I'ld'ci' the property in anv wav MitiiinitiU
_..i,. ....;.i 1 1- . .. .' - i. 1 -.■ ' 1 ..I- tl *i -pi' .■ :, "''iMD«l
sale Wiis void l)eeau.se of a conveyance not liavnig
been executed in conformity with the statutes
as to the conv<^yances of land liy married wo-
men, (ira/iiiiii V. Miiif'illji, KiCliy. (KJI.
Where the owner ot an estate stands hy .md
allows a third person to appear ,is the nwncr,
consent i>f the otlier. 'rhe father, with tli.k
knowledge hut without the consent 1 if hi, ,„| I
sold jiortions of the water froiu:.;,(., anil tb
juirchaser, with the knowh ilge of U,',. sun, |„,J
ju-oviil thereon. .After the ileatli u\ tju. fatjitrl
the son s.dd and conveyed the lands, m„1u,1iJ
the water frontage, to \V., when ii|i(,n a lijlina,
and to enter into a contract as such, the owner | |i|,,,l |,y the vendee under tiu. fatiilr .''an 7
Will be decreed .speeilu^ally to pertorm such eon- «,,„ ^nd \V., claiming al.solutciv the imi '. 1
tract. Ihii'iH V. S„tt't<'r, 1 Chy. I.'il. „.,,ter frontage which ha.l l.een',.niv,'v',-,| h'v iij
wi.„..„ *i.., .„■.,...,. ,.i' .,,, ..^f..t., ,.-.... ■ o....* father, on the ''round of acuuiisciii,,. 1.,'. .1.
Where the owner of an estate was iiresent
and permitted ;■. thinl pi'rsou to agree foi' the
sale of his laml, and the pureliaser was let into
possession, who made improvenieiits, and heing
afterwards ejected by the owner of the ]iroperty
filed a bill for payment of the \.due of those
improvements, the court allowed a demurrer for
want of eijuity. Ih.
A. took a eonveyanee ivs tnistee for B.- B.,
in answer to a liill by a jierson c laiming the pro-
perty against botii, was induced liy .\. lo swear
that he (B.) had not any interest in the property :
Held, in a subsei)uent suit by Ii. .igaiiist .V.,
that he (B. ) was not jirecluded from sliewingthe
trust. ]\'ii.<>/ihiini V. Ft n-i-<, in appeal. ItiChy.
7(5 ; S. ('. in chancery, 14 Chv. r>|ti.
f.-ither, on the ground of aci(uii'sien,.t. hv tJ
son, and that \\'. had notice of the plaintitf'J
interest : Meld, that the ivgistratinn ,,1 thi
deed under which the father and smi A:\mM
was actual notice of the son's title, ainl that liii
aei|uiescence or lying by cnild imt alfi-.t i
interest, but at most coiiiil onlv he nmstrnw
into a consent iiy him to the sale liy th.' utliti
of his ow!i interest ; an I Senible. tliiit iiiiiiirtlK
circumstances, if even rcgistr.itiun \n.r,. ^
••I' ilial notice, the .aei|uieseene.. wniihl n.it liiiiijj
his reversionary interest; and that i\\n li tli(|
jdaintiir had a<'ipiired any ei|nUalih nit.-N
arising out of !?iich a<'ipiiesi'eu.'e, he ,niii,i i|,i(
enforce it ag.-iinst \V. withmit pruviii;' .vtiii|
notice to him of such ei|iiitah|e iiiteiv.si. I!,lh
Wiifhi; -JO Chv. .-.,■8.
'J. Ill rr'iriiiij III- tiiciini II /'ini/if fur f,',„„/<
The pl.iintiH' agreed veilidiv witlnh: : ,t|
to sell and deliver wheat to him, and nu ,j ;:. ijj
lie rceeiveij a receipt, signed liy di'ti'iiiiiiitl
njiller, .as follows : " lieeeived in sturc iii.i
.losepli McHride foi' .Mr. do. do., ."d liusjul- ial|
wheat, at , .S. ft.," \-e. : Held, that the whpH
Divers lands ha\ iiig been devised to three j
sisters. P., A., and 1.., they in I. S40 agreed to a
partition, by whieli, aiiioiii,'st other things, I'. '
was to have a certain lot 4."i, h itii the jirix ilcge ■
of oyerllowing4(), and A. was to ha.'e 4i!. subjict
to that privilege, t 'onveyances werj signed carry-
ing out the partition, but tlie matter being trans-
acted without professional advice, A. and L., ,
who were married w,.::ie>!, .lid not execute so a.'-.
to pass any estate. .Ml entered into [los.session of "'' ^\'^' receipt e.\|(re.ssiiig the wheat t.i Ii.iviItci
their several lands, and in l,S4l I', exe.uted to '•''cived " in store," did not pivehnlr the |.1,«
her sou a voluntary convevance of 4."i, with the j til' trom proving an .il.sohite sale .mth.-tdi
privilege, and .A. and her husband conveyed 4(> ''''"^''' _«'"} '""'''• M''/'"'"'' v- .sV/.v rfAi.o
to their son. The error in regard to the i!.vecu- | *i- ''• •'■*•'•
tion of the |iartition dee<l having been after- 1 hefendants gave a receipt to ('. II. * I'ni
wards discovered, 1'., with .\. and her liiisb.ind ' statin:; th'it they had receivid and hihl mi lii'
and L. 's heir, (I.,, being dead,! in Is4!t, joined
in a conveyance of all the lands to a trustee
in order to carry into edVei, the previous par-
tition ; but liy an oversi^^lit this new deed
omitted to meiititm l'.,s right of overllowiiig
4G. A.'.s sou and I'.'s son were .aetive in get-
ting this new deed executed, but were ii'it
parties to it. Immediately after ifs exi'cution,
A. anil her liiisbaiid exci'uted to their son a new
deed of 4() ; no new deed w.is executed to I'.'s
son. He thereafter, with the kiiowledu'e and
aciiu'escenee of .Vs sou, built a mill in |S1."»,
and placed his <iam wlii'ie it neecssiiily caused tint they hid not .it the dale llieiml llif
the overliowing of 4li ; he afterwards mortgaged tity of wheat mentioned tliereiii in stmi' 1 1
45, with hia supposed privilege of overflowing ' H. & Co. Jlnllmi v. Soiimiii il n'-. II •' I' '
' (('. II. it Co. 'st account ."i(H> lillsliels 111 Miiiiltj
I Mai lit ill' relying upon this lei eipt, amlllu iv|ir
sentations made by ( '. H & Co., ]imvli,isiil 'in
the said C. II. ,t Co. the siijiposed ."ilMI Im^lu'
of wheat, and took .an assigniiunt ni ||i.-
receipt as evidence of his piii'iliase, .iliilas:iullilli
rity to defendants to deliver the saiiii t" |il
tit!'. In fact, however, the ileleliilaiits :il !ll
date of the receipt had only reeeivoil mhih' -'H
bushels on .iceount of C. II. .V Co. : HiM. i.'ial
defendants |i.i\ing ;4iveu tll.ii- receipt l"i
biislnds of wheat, were cstopp.'d li'niii .si'ltiii: Hi
ilKTtywiisw.MaijiiJ
cimsiiis .■illfuiii.. j,„|
;j,MKi'i'liai| 11,1 ri."
as cMiisiilorcil 11
IThllMtT liniH,lfU,;;,jJ
)SlMlllCilt .Milt liyikjl
UMgor iiii.l lii-i ,,',|,,,^|
aiiitill iM'lari^'ht J
'"/'/, It'. »i,y. m
ivnil i-cL'isti.Tcil, lai|,t
,' vostiii in ii mail j,,
It tVc, Tlic ,li.,..l M,M
ilpiilati.pii tli;it ii,;|.,
tn i||s|iip-c nl ..| ,.
any wiy witimiit t|,J
Till' tiitlior, with ihJ
lU CllllniMlt of hi, ,„||^|
IT tniiK>^v, ami M
\\i i\jH- 111' till' smi. iiii.j
f ilcatli dl' tli>' tatlirtj
1 tlu' laihls, iiidiiili
, w lirnillidii a liiihvaj^
till' latlii'i- a^raiihttJ
•liitily thf part .,1 thJ
lii'fli I'liiivi'Vi'il liytliJ
I' iii'i|iiii'sii,'iict' liv ly
itioL' lit' till' |jlaiiit.:li
It iv<j;i.stratinii .,t tii«|
;lu'r ami sun claiini
mi's titli', aiiil that hit
' coiilil imt allivt hu
iilil iiiily 111- I'liii-iiiuill
till' sail' liy thi' liitli.J
■>i'mlilf. that iiihlti tlij
ivt,'isti'aticiii wciv M
«a'iiri' wiiiilil nnt hiiiil
; ami that rvuii il tiij
my I'ljiiitaliU- iiiiiw
irsrciicT, hi' cmil'l w4
liflliillt )il'iiVili'_' :i,lil4
talilf iiitei'i'st. //'"vl
/.'• n i/il fill- (lnml<.
1 illy with ili'l'i'iiilM
liiiii, aiiil iiuili'livfi
iii'il liy ilrl'i'iiil iiit'^
•ivi'il in stiiri' ii"
,. iln., .'il liibh.l-iafl
lii'hl, thatthi-Wnnll
ir wllral til ImVi'Ih'
I |ilvrluili' till' lil.UU'
nil' sail' nn tln' ti.rii4
ii|,t t.i r. II. xr,
\r.| ami Ih'IiI "II lii'.i
HI liiishi'N "if wiii-itj
irri'i|it, anil till iv]ir
; ( 'n., jil'.ivliasnl 'PiU
sll)i|iii.'*i'il .'ilMI hi
.sidiilin'nl "1 till' *M
ini'rlia.-'i'. anila.'<:iiillld
ri' till' sanii til jiiaiBJ
i, .li'linilants at
iv i-ii'i'ivcil Miiiif '-'i|
,|,'\ Cii. :-Hi'l'l.tluf
th.ir riTi'ipt I'lT '
i|i|i^'.i Imni Mttiii.'i
ili' llii'iviil till' '|ii:«i
iiiTom in ift'"'' ' ''■
H.ni'., II'''
|l2fi!)
ESTOrPEL
1270
llfll'IH
I Ivirn'
limits uavn rci'diits tu (Hir 15. lur T'ltMl jiiiIl;' rliari;('il tlu' jnry that ilit'i'iiilaiits wore not
,1 lliiinas ill stiili' liir tlii'iii at Craiil I'niil, lialiK' lur tin' ilaiiiajii' liy lire, nr tor tlii' ili'liiy
.j^oi limira'
.(■t t" lii- "!■'''
Mmitr
IBr.iii"'
It. ilri'W nil till' |ilaiiitills at Islaml I'mul, a.-i tliiy liail nut iinitrai'tiMl t(i
h llii'i'iidli till' hank 111 Miiiiti'i'al at ;,'iiaril a^.iinst this: ami that the |ilaintill' wiia
I, tii"liiini 111' hainliil tlii'sc ri'('i'i|its, , I'lititli'il tn sinli ilaiicps as amstr fniiii dcfen
till' liiii
i lit tlii'lc tiirwaiilril till' lulls,
laiil.-
Ifltli <>
tiliriitc that III' liilil siirli ii'i'i'i|its. in ('aiiailiaii Ih'i
jli'i't in ilrlivcriii)^ niixcil instead (it nil
■ the
lieail nil
ii'i 111
ln'Oi'lit'
Itfivi'i
Itlu'iii
,1 ami
linUl I
.Mmilii'a
th
I, wl
H'lf till' I
.ml liii' till' aiiiiiiiiit iif uhort
ihiintills wridht. 'I'hi' jury liaviiii,' tniiiiil lur tlii' jiluiiitiil',
I'laiiititls havini4 ic- Jlchl, uii nintiiui I'm' a in-w trial, that the ]ilaiil-
il'i liiiilants iiiily TIM'S liarrils, siuil till' «as nut I'stuinifil liy tin' taking ul' tlii' Aineri-
4 fill' lal>i' anil fiaiiilnk'iit rt'|iii'si'iit.itiiiiis can wuul Irmii shi'W inj; a iiiiivi'isimi liy ilofen-
II. that tl
liail rii'i'i\ I'll 111 stiiii' lur him 7">(Ht (lants ul' tin- Caiiailian
III ; Imt that had
lurii'
I Mil
In'lifi
hiili i'c'|pri'si'iitatiiiiis tiny alli-dcil dv Idi'l'iinlants |ilrailrii that hi' tuuk tlif lattur in
bills kiit'W hy till' I'uiirsf uf traili' wuiild lii' lii;ii nl' tlii' Ininu'r, ur nC sn niui'li thi'ri'ut as WftS
lipiiii liv liirsmis ih'aliiii; « itii I'.., and nii di'lii'ii'iit, tlicii' was cvidi'in'r tn fi'i ti. tilt' .jury
Ithi't'iil"
111 Willi
Il thu jilaintilVs iiiailr adval
til warrant a vi'idict I'ni' diti'iiilaiits In a oiTtiiiii
thf ti'll
valiK' n
I that i|iiaiitity. 'I'lir jury I'xli'iit, it nnt I'nr all that ri'ally mij,'ht to have
otiil that as lii'twrii
thi'msi'lvi'S and liei'li di'livori'd : llrld, alsn, that tl
]iroj)er
Ithelilaiiitil^.'l''''^'!'
daiits wi'ii' limiiid liy tliiir ic- i diri'i.'tinn tn the jury wmild lir. that di't'undants
Iceiiit?
1 lialilr in this aitimi. Iliniiirh till' I'rrnr I well' iinl liaMi: tm- tlu' di'lay, nr Inss l>y lire
llMSffrnIll "»
itaki'iinly; lli'ld, a iiiisiliri'i'limi : : that tiny wvw lialilr I'm' llir wnnl lii;liiiij,'iiig t"
Itliatllifiriitti'iitinii
dd
liavf III 111 drawn tn jilaintill', wliiih tiny I'arriid tn H. ami did not
Itlit uaini'i
thi
il till' duffl. • nts' liiisini'ss, .'iiiil till' ili'liM'i' ; Imt that il' tin' plaiiitiH', with kiinwledgo
lits
tl
lid h
Icbjeft ill tlH'«' ri'i'i'lins, a.. : uiry siiniiiu liavt'
Iwii ;i>ki'il til say whi'tlii'r the I'rrnr in this oasn
lin« I'min mistake nr a dt!sij,'ii tn deeiive, nr
|fp.m siii'h ni',i.'li,i;i'iii'*' "■'* mi^dit had tn the inii-
Iclw'iiM'i f"ml- }h- 1. 1 II II 1 1 III. V. 77(. liiifiilii
I'iriiiiiistaiii'i's, tnnk the niie kind for
;iml snld it, when he iiii>,dit have h.nd
lit all till
the iithi'l'
his own, and tlie daiiia;.'ed Caiiadiaii wnnl waa
deliveii'il tn tin' cmisi^inei' nl' the Anieriean wool
with |>laiiitiH"s eniiseiit, in rmisideratinii nl' his
' gettiii;; the Anieriiaii in lien of it, then tho
•J4 t,l. I'. "JTO, where a verdiet lor the iilaintill' emild imt elaiiii siilistaiitial daiii.ages
,:1. was iiiiheld
ynililf, tliat the Hills nt Ladin- Act, 'Xi \'iet.
.I'.l, 11, tli'ati's nil estii|i|iel as tn the riinililhni
lifliicli;.'iiiiils are when shijiiiLil. > '/iii/iiiinii v.
Umihr. I'. 4-.'i.
either t'nr lireaeli nl' emitrai't nr lur the wrnngful
eniiversiiiii. Milliiiiiii v. (I'riiin/ 'I'liiid- l{. ir.
/'.... 17 <'. I'. Il">.
Certain liars and Iniiidles nf iron eanie hy shiii
from <>las;;nw tn Mnntreal, emisigned to the
1 Jilaintill'. Mis a,L;eiit gave tn ilel'eiidants' .agent
janni'der til d,.t tlieiii frniii thu ship, and alter
: w.'irds lei'i'ived frmn the latter a reeeipt, speoify-
{ iiig the iminlier nt hars and Imndles and the
■ ■ ■ ■ h
Declaratimi I'nr lireaeh nf ili'iindants' ciiiitraet
>iiirr\ ,'f'.'4-l liiiiiiids nf ('aiiadian Wnnl troiii '\\
kil', i.'y rail, ami theliee l,o H. liy steanilio;it nr , ...^
Ill, ami ili'livir there to |ilaiiitiir, iert;iiii perils ! ^rins.s weiiiht, Imt with a |iriiited iiotiee at the
iiltiibualtii'seMi'pti'il : witii a eoiiiit ill trover : tl))) nf it, that "rates and weight entered in
k:.!'. :;i«"l^ 'I'll!' ivideiire was, that on the , reeeipts nr shipiiing hills will not lie aeknowl-
(ibi.fSlitiliilnr. I'Stit, pl'lilitill' delivered tilde- ! ,.dgeil." .VII the iron reeeived hy defendants
i,imt>tliliti'rii saiks I'i wnnl. wtiuhiiig ,'f_M4 fnr the plaintill' was dilivered at (Jiielph, Imt
ili'u.ssi'il tn the enii.sigiiees ill 1>., tn lie there was a Very I'lmsideralile deliiieney in the
llit-iih)i'it tmli'lemhints' t.'iiill .and tn the enii- , weight, ."^n far Jis appeared, the irnn had not
lliiili« iiiiitaiiiiil in III.' plainliU's written re- i l),.fii weighed eitliel- on heiiig t.ikeli from the
slii]i, or afterwards : Held, that defeiidantH
were not estopped hy their statiiiielit of weight
in the reei'ipt, and were not lialile to the plaintitl's.
/liu:>iiiiiiii V. (irmi'l I'mul: I,'. 11'. Cn., 'A\ i). B.
.V}."), in appeal. N. ' '. in (,». I'.., :«)(.». 1!. 1.10.
l«ttiiiKfiiiilaiits tn rei'eive .same, deli'iidants
iraisia riiiiiit with similar eonditions thereon.
Ilhwiiul wa.-i |int into a ear with wool from
ikliiiiau, innsij^ni'il tn niie I!., tngether with
^rtamihitiilili' iiiiiids. and all .'irriM'd at Isl.iml
mi .11 till' IStll Septemlier Inllnwili:;, w here
bwtri' ili'taiiii'il liy the eustnnis .uithnrities.
tilt rar ^l^llMl|lH'lltly tnnk tire, and the >aeks
^iiitaiiiiii^' till' wnnl were liiirnt. .'<iime of the
li>iUii.«alMi liiinit, and sniiie of it singed. In
jlraviiuriii),' tn save it, the wool iioeaiiii nii.xed.
IH'I waM'aiiii'il ill this state to 1'., where new
Jili> «rri' nlifaiiieil and the wonl eoiiveyed in
fttiiit" IV, ami tile thirteen saeks delivered to
iiisiv'lici's nil •_"iiiil (letiiher. Init iniitainiiig
»lv ■J4!IS imliiiils. inste.iil of '.i'^Ml wllirll the
III lailim; slu'Wi'il. (hi the deliverv nf fniir
n. Hills III' K.ii-liiiini, iiiiil I'riiiiiisiiori/ XoIi'k.
The indniser nf a hill is estnpped hy the fact
of his imli.rsi nieiil, from denying either the sig-
nature 111 the drawer nr her enmpelenee, (lieillg
a letiie envert in this easel, to draw the hill.
h'osMi/ III. v. J>i.i;i, 'i). M. 414.
.\ . lieing iinleliti'd tn the plaiiltilVs. iifl'ered
till 111 .1 liiile with .111 elidiii'ser. The pl.iintitVH
1 111 laiinijj siu'wi'ii. wiiiiie iieiiM'iyni iiinr agreed tn iuiepl one, ami A. made a ante pay-
liitiiiiial saik.s. the weiglit heiiig still short liy a,lili' to the plaintitls, proeiired the defendant to
lent) mill' |iiiiiiii|s, an examinatinn nf the wnnl omhirse it in lilank, and deli\ eied it tn the plain-
minli', wlii'ii it was Iniiiid t insist nf S~'A '■ tiHs. The plaintitls diseniinted the nnte. having
iiil.'int ('aiiaila lli'i'i'e, I ItiO Henirhed ( 'anada, eiidnrseil it iiinh r the delemlantH endnrsement.
The nnte lia\ iiig lieeii dishnmmred, the plaintitl's
took it up, striii'k out their eiidorsenu'iit, ;iiid
again eiidor.sed it ahoxe defend.int's name, ad-
- - ding to their own naiiie '• witliiiiit reeourse," ami
-■■'■. .1 liiithfr ainieared that !tli"_' pmiiids then sued defendant ; Held, tliiit thnugh tho
JMila llt'tcc hail heeu delivered to I!. The plaint ill's had nnt endorsed the note when dofen-
1 IlliS jHnimls .Viiieriean tieeee damaged liy
lit. This wa.f siilil nil plamtill s aieniint, Imt
fH ii"t n-alizi' as niiieli. it was iirnved, as it
ponlil liavihrnii^'ht had it arrived .'iliniit.i iimnth
irlier. It
M
f^%^'-
we
1271
KSTOPPEL.
K'lil iind (iccii|ii<"il liy til
>f N. (the (Icfciiilaiit.'^) iiiid (
(l.'iiit I'lulorMoil it, iiml tlinu;,'|i their ciulorHi'iiiont, | iziii^' tlic real |)n)|i('rty not :iclii.ill
iriiikilij,' tliclii .staml iiH lirst I'lidorscrx (III the iiiitr,
wiiK not written cm it until alter aetion Kron^lit,
yet that such endorsement was siitlieient. St'in
lile, also, that the defendant was estopped from
denying' that the plaintills' name Mas endorseil
when it onj;lit to have lieen. /'(<•/■ tl <il, v.
/'Iilji/xm, <J t). IJ. 73.
I'laintifTdeelared aj,'.iinst \,. ami A. as endor-
sers of a iironiissory note, payahle to the older
of Ij., averrin;,' that the defendants duly I'lidor
sod the said note, iilii) that A. deli\ered the saiil
note so endorsed to the |ilaiiitiir ; Held, on de
liiiirrer, that A. iniist lie taken to he the iiiiine
diate endorsee of L., ami e iiild not deny I,, s en-
dorsement, (irijllii \\ /.iiliiiii n I (i/., \',H). H. 1,S7.
m
llM.l,;t|
""■ Villa.,., J
<,luiere, as to how lar an endorser is estopped
from denyinj{ tlu^ maker's sijjnature. //ini-inniii
V. Cotton', ]{>(). n. !»S.
Defendants and one M. were in partnership in
the Inmlier luisiness. M. took to the plaiiitiU'i
a note for .':<SI)iS, tilled up in his writing; and
piirpoitini; to he made liy the linn, payahle to
himself and eihhnsed liy him, »hieh the pl.iin-
tills took from him for \aliie. This note was
made for his own private )inr]ioses in fraud
of the partnerslii[i. The plainlill's' ni,ina;,'er
swore that he relied on .M.'s seeiiiity, anil did
not enipiire aliont the linn. I'er Hiirton and
Patterson, .1.1., .\l., as lietween himself and his
eo-partners, was not .anthorizeil to sij,'n the note
in tin'ir name; and the iilaintill's haviii;,; avowedly
aeeepteil it on the seelirity of M., not of the
linn, aliout whom they knew nothin^r and made
no enipiiries, the delend.-ints were not estopped
from settiiifj; up .M.'s want of authority to liinil
them. ('1111111/11111 /liiii/: of Comiiuri'iv, WHmiii
<l III., .'{IJ (}. M. !»., ill ai.peal.
I>.,aiid in eapitali/inj,' tlii! ralalilc inrw,,!,;,,
perty there for the year, the lil.iilitills ,M|,ji,||'|,j
at ten instead of si.\ per cent., ii.h ilin, t,,! I
law, and apportioned tlu'reoii .inioii^ tin si\ Ii
inunieipalitii^s, wheieliy i<I,0(M),(MMU,,, „i'|iilt„
from the eapitali/ation, ami the ii;:x'i< ;;at, ( i"
of the ratadle jiroperty in N., aiiTftlh am,'
direeted to lie raisi'd there, was erium iiii,s|,
illegally made up: Meld, on dci n r, ,i„l,|
defenee, foi' sneli eapitali/atiou wa» 1 i.ntraH J
tilt, statute, and though it hsseiicij tli,. ||,., .
daiits' a.ssessmeiit they were not pri(lii(l,,| ||.|,,|
ohjeeting, for the i.laiiitiU's eonld 'inh ,rnt,,|
del.t hy eomplying with the Aet. /■/»' r,,,.,,,,„|
lion o/thf Count II of l.iii,;iln v. '/'A. r,,,-.,,,,',,;,!
oj till' Toim 0/ Xiiojitrii, iVi {), It. ,-,-^ "^
In anaetionliy amiinieipaleorpiiiMtiiiiia-iiiul
their treasurer on his lioiid, allc;;in:.' iiiiii.!,;,"!,,,,,
s I of moneys received, it appe.-ind tli.it inanac,
eoiiiit remlered to the eoiiiu'il hy ditViniaiit
sum of money which was in i|iiestii'iii « a.s diarJ
as jiaid to one V.., and it was asscii,,,! that
had made siiliscipieiit payments to liiin,
the account to lie correct. The I'.iitsili.l
this to he the case, hut l^iemhle, tluit tl
would not have liecii liinind hy miiittiiiij
or ohject to this item, whatever mi^lit l>, ym
eH'oet if the account had hecn nyidarU .iii.jit.
'J'/ii ('or/ioriitiiiii III' till \"illii,i, ,,;' /»,/,,„,//
Chilli irii-L; l!> (,). I!. I'TS.
(^mere, this iiction heiiig hy (||,. cimi.iij i.fjii
year after that in which the payment |>li*l
was made, whether the facts wmilil li.ivcall.n
any defence against the eouiic'il « Im tiiii>),iii,
tioned the paynieiit. .V. '', , ///. ■j.sii. Sir
Miniici/iiiliti/ o/' J'Ju.it y i.i.ioii ri v. //(/,•<. m.iii ||
Q. H. ."i7(i, r)S3.
4. C
or/ioriitioii
|)el)t on award made liy .arhitrators appointed
to value the plaintifl's proiierty, through which
till! defendants had liy their hy law direeted ;i
road to he made : -Held, that the defemlants
h.aving gone to arhitration, were estopped from
olijectiiig that the liy-law was not averred in the
declaration to have lieeii under seal. liit.'<oii v.
Mimici/iiit Coiinril of tin' toirn of I'ort //o/h', 10
(^. n. 40").
A dchenture issued hy a mmiicipjil council
under their corporate seal, and signed hy the
he.ad of such corporation, for payment of a deht
duo or loan contracted under a hy law m liieh
does not provide hy sjiecial rate for the payment
of such delit or loan, does not estop such muni-
eijial council from setting 11)) as a defence to jiii
aetion on the didieiitiire the invalidity and nullity
of such hy law. .)/illisli v. Tlir Tmrn Coiiiiril of
tlir Toirn of liriiiitforil, '_' (,'. 1'. ,'{5. See, also,
Anijiiii V. Till' Miniii'i/iiililil of thr Tiiirn.'<lii/i of
Kivijitim, It) (jl. 11. I'JI ; Cniirforil V. Cor/mnitinn
of till' Toirn of I'olioiini, '1\ (). |{. I|;{: Srolt v.
Cor/ioniliiiiioftlii Town iif /'ill rlioroii;ili, !!)(,>. It.
4(i!t ; Wriijlil v. < 'or/torulioii of tin < 'oiintji ofllri'ii,
l'J('. I'. 47!'; Crox.tx. Cor/Hirnlion of /lirCi/i/ 0/
Oil inn I, 2:{ (,•. 15. 'JSH.
l>eclanition on a county hy law to levy numoy
for the general )mrposes of the year, alleging
non-payment hy defendants of the pro[iortioii
tu be raiHod hy them. I'lea, that in capital-
IIS
i-^'iiiiiiiil
IM.l,
I- i'"lll|.1
tiMl(.|l,<
."». /n /I'lliitiiDi III Miiiiiri/iiil Kl,i'ti„ii.,,
Till! Court will not set aside an clirti J
the relation of a p.arty who coin iiiivil in t|i|
election, .■ilid voted for tlie |iei-siMi wijiwilirtini
ho jifterwards atteinps to set .■isiilc. Hi'i'mr,
ril. h'o.ti'liii.ili v. J'adii; -' < '. I'. I."i.
A party cannot complain uf the clcitiiiii"!^
candidate whom he ii.is hiniscif vntiil Inr, links)
he can shew that he was, at the time of v.itina
ignorant of tho ohjcctions wliicli hv lll■^ir^-
iirgc. Ili'ijinii r.i- I'll ('iili'iHiiii V. (*'//iir. ■'
2 1'. U. 18.-C. L. Chamh. Hiirii,*.
A. liivd his dwelling lioiise ,li lluwniiiivil
whore his M'ife and family residcil, Imt 1h h
saw-mill and store, and was |iustiii.i>ti'i' nil
townshi]! of Cartwright, wliicli urca.si I liiri
freipieiitly to visit that p!;icc, ami wliili' linfl
he used to hoard with one of Ills iiini in ,1 luna
owned hy himself. After votiii;' .it Imniiiii^
villo he went down to ( 'artwri^'lit, ainl
there al.so .at the election hir the tii«ii.«lii|i'"ii«
cillor, which w,as heiiig held al tlic sanu' liiiw
It a[ipeare(l that the relator, lUii: ni tlif iiwil
dates for ( 'artwright, ohjcctcd tu A.'.^iVdtitiiti
hut said that it .slioiild he aci'i'|itcil il Im'»"|||
swear that lie was a resident : .iinl that .\ I'l
such outli, and his vote w;is tlicicii)iiiiin'C"r'ltiH
-Hehl, that tho relator's iiliut nnil'lnj
eatoi> him from afterwards iihjcitiiii.'tii tli>' '"'I
h'cijinii (,f /•(■/. Taylor v. Cn-^iu; \i\). H.^'il
1271 1
;ii-tiially niit.'d, i,„(i
liW llfis III il„, (,,^1^1
('. ami till vill;i;,,,J
nilalilr i»r».,iiii| |,„J
fiil:iiiititl-^,;iliit;ili/„lf
(•(■lit., UN iliriT|,,l \,A
nil allinli;,' tile si\,rj|
l.(MM».(K)(» waM.||i,tt,J
il till' a--ri-iit,. \,,||,J
1 N., ami till' ;iiii.,ii|/
!, wan (■n-ip|i(uihly;„i,i
(III ili'iiiiinci'. ;i ^,„n
taliiiii wa- iniitriin tuL
it lissclii'il II:,. ililiiJ
■Vi' imt |iri( Imliil ip,jk
lis ((illM iilllv itril. J
lie Art. '/■/„■ <',„-,,.„-.,.|
ihl V. 'I'll! '''■/■y»;,-,l);i,(
.'.") (,i. li. ."iTS.
ijial (•iii'|i(irati"iiii:;;iiii!iJ
I, all(';.'iiii.'li(,ii-li;iyiiuii3
IHicaicil tliat ill ;iii;iJ
(Hiiu-il liy ilitVii.lu:' )|
in i{ii('sti<iii was' i
was assfi'lcil til 1'
incuts t<> liiiii, :^- Il . {I
'I'lic t'actsiliil iicii,|i,
ciiililc, tliat tile i''iiiim
ikI I'V iiliiittiii:j tmiMti't
I liatcvcf iiiii;lit 1h till
liccii ivt(iilavly auilitnlJ
r;//,(;/, i,f /,'i.;. r..,/' J
11^' liy tllr iiillMil i.itlJ
II tlic |iayiiuiit lilrailni
acts wiiiiM liaviiilliinirf'
ciiiuii'il \t Iki tiiii> suic|
<'., III. "JSIi. Sir. ;il>
umiufi V. //ci/'<Mii'iii, Il
lllllir'ljHll I'.hi'i'inlli.
t aside all i'li'rli"ii i
will! Cllllrlll'rcil ill tlij
lie iiersdii \vliiiHirlictii(
t aside. /,'.?i
.'''. I'. !.">.
ill (if tile elirti"ll'iil(
iliiscll' veted lor, link!
it tile time ef V'tUlg
lis wlliell lie ili"-iri>
,1,1,11111 V. 07/i'r"''i|
liilllis.
il
hiiiise at liiiwiiniiviliia
y resided, Imt I'c li*lf
\v;i.s iiustiiiastcniithf
wlliell iiee:isi"lli'l M
place, and wliil'' ''i''*
le (if Ids men illiill"»!J
.cr Vdtiii'' at liiiwiitifl
Carlwi-i-lit, aii'l 'M
f,ir tlie tiiHlislll|ii'
lleld at the s;niictlliij
latdf, "lie "' ''"■ '■"""
cetedt.i.A.'sVdtctli.ri
|',c a(ce|ited il l"'«"''l
lent ; and tliiit -V i"!
ilHtliel-eiili"iir«*'^'"1
)v's e(iiidiict I""''' 'I
ls(il)jeetini;t(itlii'V"11
11273
\o(|iiic
leKfti""
ijnln 1*('"""
ESTOPPEL
1274
(< III' II cnniliilntc in nn irrcpiUrj In nn iictimi ,'i>;.'iiiiHt the cndorxer of h niit<<, it
liiiw far it iiis(|iialili('H liini from after- : n|>|it'iir('(l tliat liist name iuul lieeii written liy tiio
HCl'IK
ii;; a relatiir. /I'liihin i.r i; I. .Uili-ln II maker, liis iie|i|ie
tlier
(• was no evKlcnc'o
,\ihm'
I ('. I,. Cliaml). -MX ISiirns.
d' ex|iress antliority ; Imt it was |irove(l tiiiit
nlwi III (■' Cliiirl)'* V. L>>i'ii>, 'iC I.. ( 'lianil
.lefi
eiidant li.'K
id'orc anil afterwards endorm^tl
^,,111111 '
,1. I'>:.^l
t!. I'lilmtK
ri.t/oii, III. IT'.t.
for his ii(|ilic\\ on ]inr( lias(s liy liini from flu-Hc
idiiintilVs, and tl at u lien |iaynient of tliis noti^
was (leliiaiiileil
liiiriiiR
if liini, lie liad asked for tiniu,
and li.'iil not denied liis cndoisemeiit until soniu
months nfterwanls, w hen the maker had iil>-
no
the existence of a license the licenmir I Hi'onded. His excustfj was, that he kejit
,t iliiiimte till' validity of a i>ateiit old.iined nieinorandii f hist
iliA||
[U him, i"i'
i'n<i(
I'lit.-'
UKl sii)i|ioS(;(
valiK
I .ifterwards assigned liy him for it was rij,dit : Hi Id, that the dtd'endaiit hiul
til .iiidtlier. Wli'il'in'jy. Tiillli, I7<'hy. VA. l're(dn(lc(l hinis(lf liy his conduct from dis)iiitiiij,'
I'll,, hdlder of l"!
tents fiir im|>roveinents in
liahilits
/'/•.(// ,1 III. V. Diiikr, 17 V- "• -"•
tccrtaiii .•
ltd 'Icli'ii'
'llIC
liciiltilial ilii|ili:ineiits a>;reeil to assij;n 1 |
ant the
hisive riiiht to sidl these i f,
an action on a j^jnarantee toseeiirt^ iiayment
ir jjoods furnished liy id lintill's to oiu'
W., ,al-
linii'i''
Ills, Int not to maniifactiirc tlieni ; and ' Icj^'cd to have lieeii made iiy defendant and one < ;
rtiini centiiijicncies lie al.sd agreed to a.ssi^-n Imt afterwards |iroved to lie a forgery, it a|i|ieart.il
Ithc |i:iti'
Kfh'ilivalul
lits tlieiiisidve
III fact the ]iatents \ t|,,,i th
ntill's had had m
i f,ir want (it novelty, and the defcii- , whatever with defendant dnrilij; the
to liiivinj: reasHiifiied any interest he had in the i ,,r tliu account sued for ; Imt thai W. afterwards
I'oinniunieatmn
currency
Mts. (.laimed the ri^dit to maniifaeturc th
lis own lielielit : liidd, that
leeiimiiiL; insolvent, one 1'. was .sent to Kincar-
dine, where \V. live(l, to rcjiresent certain credi-
tors, anion;{st whom were |ilaiiitill's, and at iv
meeting.' at wliiih defendant was jiresent, I'".
.iskeil \V. w h.it (daiins were guaranteed, and liy
w hoin, towliii h W. iUiswcrcd th.at (ilaintiU's' noti",
with certain others, was (indorsed liy dtd'endaut
aiiiHi., and altlionj;li defendant heard this, hu
said nothin;;. I'"., however, did not then appetir
to have lieeii aware of the j^uurantec. After
this \V. alisconded, and hoiiic time afterwards
l.ini tide siipiiosed to l>c a conind^ doner dclendant and <i. went to plaintiffs' ollice and
uiity of Lennox, and .k know led>,'ed a t"icd to make a settlement, for a less amount,
1, . Aiiice,' were ll(d(l, not estoiiped from } of W.'s li.iliility. 'I'liis the plaintiffs refused
j|iiiliiii; the antliority of A. as commissidiier.
11*''
1 iiuiikmciit.i liir , . ,
1 011111' til till' agrcenieiit lictwcen the parties, and
Ithiir ilcaliiigs with each other thereunder, the
iiinlaiit was estopped from ((Uestioninj,' the
Inliilitv of the ]iatents. ilillii.* v Ciillnii, '_'•_'
fhv. i:';t.
;. y.iluHiji iif Ojliiiiil .!('/.< »o- .^iiiiiiiiiiii.' ii/.-t.
icmbiits, who had noiu! lieforc one \. who
iW.ri" v. .!//<(", ti C. P. V.W.
i In. lease fur a malicious proseeution liefore a
iji>tnti' : Held, that defendant, liy having
ivilllii'iilililicatioii to the ma^'istrate as such,
> nut ini'iluded froin olijeetiii;,' that he had no
lonvlntiiiii, there lieiuf,' nothing,' to shew that
iiil.int (lid nut really liclieve him to have
(atli'inty, llmil v. .Mr.'lr/liiii; '.M i). It. 'iM. I
kill, that the plaiiitiH' haviiiL; proved his i
mil U'l'iiiv the assij,'iice in insolvency, ai\d |
||iiii; iihtaincd an order in this eoiirt to set
Dik till- iiiMilveiit's disehar^'c in the insolvent
lurt, with (lists to he paid to him out of their
fritt, was luviliided from ohjectinj,' that the
Wgliir w,is iKit duly apliointed. .illiiii v. (i,ir-
'.''., HO (,l. It. Uui.
S. .[,fnhiil Pi iniiiiij /,liiliili/i/.
|lii'i(iiilaiit, sued as maker of a note liy the
nki^co, had liefiiie the endorsenu'nt admitted
m.ikiiii; t(i the plaintitr, and induced the
|jmtilV til take it : lleld, that the suliseriliiiiji
- liccil lint he ealled, as defendant was
III. I',mi\. I.iiirl,. ■<.■<, r>(). I!. .".11.
rUirc an ajjreenient under seal, hut of a
Itiirc hilt ivi|iiiiiiiif a seal, was executed liy one
rii jiartiicis in the name of the lirni, anil the
itiicr lint eyeciitilii,' afterwards acted under
I rcci'ivcil the lieuolit of it, siudi a^'reenient
• siHtaiiuil as his deed ; and it was held that
|mi1i1 lint he alhiwed to dispute the antliority
I'liidi It wa.s executed in his name. Uluninlri/
li!ml„i,,iul.,'n). W. 455.
to do, alle^'ini,' that they were fully secured,
and pro'luced the guarantee. 11. at once said
that he did not lielieve it to lie his signature ;
Imt defendant said nothing : lleld, that defen-
dant w.'is not estopiied liy his eonduet from de-
nyini,' his lialdlitv. Turin r , t nl. v. Wil-^mi, '2'\
{'. v. .ST.
A gas company incorporated under l(i N'ict. e.
I7;<, I'.V resolution of the ilirectors made certain
calls, to lie paid on particular days named, Imt
liy the notice pulilislied they were made p;iy
aide on dill'erent d;iys. Defendant had written
to the company, enclosing his note for four of
the calls, saying that lor the lialanee lie would
send his note soiiii, and re(piesting them to accept
this oiler, as he had licen alisent in Kiirope, and
had no knowledge of any of the e;ills. The com
pany, however, declined : lleld, that the calls
Were illegal, lieing unauthori/.e'l liy the resolu-
tion, .'111(1 that defendant was not estopped from
disputing them. I.iiiiilini <i'iit< ('iiiii/iiiiii/ v. <.'iiiii/i-
bill, 14 (^ h. I4:<.
I>efendant lieitig employed liy ]ilaintiffs as
their locomotive and car superintendent, made
use of their materials and ini'ii in doing work
for a sewing machine manufactory, ir. which lie
was a partner, and untruly entered sueli time and
materials as employed in the plaintiff's .service.
The |il,'iintilVs h.-iving sued him upon the common
counts, claiming in their particulars fm- goods
furnished, Imt not for w(irk and lahour : lleld,
that defendant was precluded liy his ow n mis-
comluct from setting up as a defen(;e that the
jilaintiU's under their charter could not sue on
such a cause of action. Xoilhrrn /'. Co w l/islir,
■-'7 y. H. r.7.
I li,:
■im.
m
127. 'i
ESTOPPKL
lluirfi, liciii;{ .'iImii III xt ciI km, \\lin li.ul
l•l'(•ll,^ of HilK' ll|Mlll II.K CXCflltlllll. 'I'hi
|iai'tii!H tn till' roiitiiiiiiiiij III tilt' liiislinss III' tlio cxii iiliiiii ('\|ili'i'il mi 'Jlltli .liiiin.ii\. |
lll'I'lMHl'l
I will
I lii.sa.iMcli anil Hm.'^i' nl his iLiitiicr, uiim ritiii'iii
1 1
li
''■iiiitidi'
ill ilttnlii,
wi.Tf II I'll I |iii rlinliil 1 11 III I iiliiicliin; til |iayiin lit tlir plain tills, was tlir assij;inr nl |i|,iiiititr,«
by till' I'slali' 111 llir Insnis inriiriiii ill I'liiitiiiiiiii^i inriil, ami liiiirlirially iiitiii'shil tlniin
the 1 1
A.
, //
i iiltr
!l (■
.'SO.
an ai'tiiin a^'ain.-il the ilclinilaiit, ||
a lalsc I'otiii'ii
II.
that till' iJi'tV'ii.l
!l. /;/ .|l'/lil)(.s l/l/K/'/l.s/ Slit lifl' I'tll Fll/.Si
lliit ('stii|i|ii'il liy lilH I'lltllii'alt' 1. 1 •.'Stii I
LSI
//.
'"/■«, ill
1-, Irnin urttili^
,1/1
tills artliill.
n|i II.
/ ./ III.
N writ as ai
■nil,
illlt V)||
lllllW,
I iiii.Hi.r t(,|
"""■ i:h'|':,m
I'll an ai'tiiin a^Hiiist a Hhi'iill' t'l.i' a false rctiini ^ |,, an aitimi a,i,'aiiis| tin' slunlf \
of nulla Imna tu a w lit nf li. la
till' I
that tl
II'
laintilV aftrr sinli iitiirn hiu'iI
lari! tai'f ; ti|i'|,_ it ji]i|it'ai'>'il that nii tlir ijav I
'ir a l;i|,
ca 811. will III' no ilil'i'iu'i', iinliss
avrrrcil in tin' plea I li.it tin
It
itill'
fiirti
i.t.'.l til
"t " plaint ill'.-.' writ rami' in, h
tl
ll'I'iTl' th,
<'i'»-ivii| a ii. 1,1 J, 1
le suit nf mil' K. fur llini'i tll.ni til
retiini III nil
tiiiK! that it
K '-'(in.
Ill
'' till ili'litms ;,'ii(
I' viilm „fl
anil piM' a Hanaiit tu hal
w.is lalsi'
with a kniiwi.'il.ui' at the ' l,,.ij|j|i; uhniinly wi at tu tin' ileht,
/.'i///.y \. Unlhiii, (i (.1. I (,,|,| liiii, ,,f it
ifiallsi' III' tliiill;;|jt
'li<>|>an<l|
III' j,'iit liy alliiwin;; him tn ;;ii m
lllllIT
an ai'tiiin a).'ainst a
■ihi'liU fur lalselv i-r I I'V""*
hy alliiwin;; liim tu ;;ii un witj, ||„ |,u,,.
On the |ilaiiititl's' writ lie i||,| n,,,),,,,'.
turning' In a li. fa. ;;iiiiilh in haml
tu till' \aliu' iif ''"' I'li'iiiitills' attiiiniy w mfi' tw
lit.
iH. anil nulla iiuii
iliitl
ir I'l'Slillll', u lull I null
tu ai't, anil riiltil him, ami i
I'T, llr;j||i: 111
ml
n rrliniarv. I.Sili'i.lnl
hail in fart liieii sei/eil tu .satisfy tlir writ, the '■'■'""'"'■'' ^''''^ " '" imll^i I .1, K.swnt
(lofeml.'int (ileaihil liy way uf e.sti.|i|ii'l, that the '"''". I'li'vnuisly reiieweil. 'I'lie emirt
plaintiir rei|iiesteil him tu ret inn niill.i lnin.i,
iiL'oe|iteil ami aeteil mi that ret inn, anil tuuk
a Veil. ex. w itii a full kiiuw leili,'!' i>i the i.U'U
I'llifl
111 il
aw inlereiiees uf faet
III
I'llij; litti
lint
matter uf faet tliesheriH' lie
tli.'it
a matter ul law, li<
ili.'iiii
ver .'"inzeil, iirtli,
:i.4 il
lit ,'u|
un ilemiirrer.
le I i,'i
Mill.
rill
II.
11 {). li. .•lO-',
Cane liir false r.tiirn uf nulla limi.i tu a li. fa. , lic-itiun f
thiiiiKli his ai'ls iiiij.'lit imt alleit K. i
lietM.'eii K. anil the |ilaintills, yet tli
I'll him frmii settiii;,' up the tirst writ
It : ami that,!
II ail mvA
||'I'VH1-|
" as a jiisti-l
Plea, that tl
kiiuwiiii' it to
e plainlilV ai'e.'ptt:.l
m- his ri'tnrn tu the seeiniil, i|n. ,,1
upon it
llelil.
iintriit
■ III ilefelii'
etiiril tills were, therefor.'. In III entitle,!
il a li. la. lamis ! /.',„/,/• v. (llu^s, Jli ( 1. |i. -.'TT.
tn If
M.ii-tli V. 77,1
VA (}. H. -.UVX !
A nheritl' liaviii),' sul.l shares in a Hteamship [
eoinjiaiiy iiinler exeeiitimi, ami I'ee.'iveil the !
inuiieyi eaii mil return iiiilLi limia un the ;;riiunil i
that they weri' nut proii.'i'ly saleable iiniler the j t|
10. nili.r (\
'I'
le assij,'iice.s u
itti
fall
iinkriipt iiisiiiiij,t|||.,||,.|.,|fl
writ, /fiiri/t v.riiiini/, \:>i). |{. ;v.i.
The sherill eaniiot ailniit .1 ilelitur tu th.' limits
'.'present th.' int.'i-est uf eieililurs ,iii,| ii„| ii|,r(ly|
■|e p.rsmi iir .'state uf the liaiilirii|it. Tli
therefore, w ill nut I
iiii'ht he, f
stiipi
eil, .'Is till' K;iiili
rmii ilispntiiiu n,,. vajiilitv ni ,1 r
li
ler.' \\v lilies sii on a
I'Xeept liy statute. W
not in aeeorilaiiee with tin
tt viilmitary esea]ie, ami a ereilitur
iiuireil ami taken an assiLrnnient uf .'ui.h a limn
hunil I ii"^'t' «i^'^^"' I'.V the liankriipt in irini,! „i tliel
t he is li.'ilile .'is lur [ 'i'iiil<''ii|'t '^iw. mi the ;.;riiiiiiil uf fraii.j. /
h.
.1/0,1,/
<■».
:wi
•.1"
in Dot estojipeil Irom
Kiiiiimi V. //,///, •_'.•{ (^. I!, mx
iill;,' tu till!
sheriH.
The plaintills liehl .stuppeil fnun .1
inellt .it eert.'lill nutes s
taken a iiiiirt;,'a;;e as s.'eiirits' fur tl
.At th
it uf
iiiyin>;|i.iy-
11. -il nil, wliiii tiifV li.iil
ii'ii' iiayniiiit,!
II. uinlera li. fa. ilateil -JStli '""' '""'I'l: !' pnwer of .sale tiaieiii lia,lM.|.!tD
April, KS">!t, the ilefemlaiit (sh.'rill) s.i/.il the
laiiils of \V., ileeeaseil, ami niaih' his return
tliiril [larties for the aiiiuiiut of tile imti^. //„»i|
//. X. .1.
,/'//., SI.I.
" lands on haml to the value uf t'lO.
.\ V.'l
ex. was sue.
I' D.'liluii award ina.te liy arhitratms
1 uiit, iiml.'r whieh ilefeinlant .-^ulil ami , t,, value the plaintill's iiruiirrtv t
. ..t.:. .. .1 tl t 1 1 .. 41... . . . . ' . ..Ill'"'
re!ili/(Ml a purtimi of the amount : ami 111
iler tl
same writ other lands
illereil fur s:i
tir
'femlants had
tl
leir liv-Jaw 1
there lieiiig iiu liidders, the sherill', mi the 1st of I |
M, . . . !
"It road tu he made: Held, tli.it'tlii
iiilititl]
wlll','1]
iiii'itnii
L't'l'lllllllltll
ly, ISliO, endorsed a return mi the writ, that | ,,|,j,.^.t
laviiii; ;,'um^ to arliitratimi,
he had made l''2,'5S, /,/;,,/.< ,//, Innul I'm- "',(/,/,;/' I d,.',.);
ij; that the hydaw was imt
Were estnpiu'il l|-,'m
1"
ilVelTi'iJ lilt
liili/ii:^ tn rutin uf i.
Iilllils" I'lif ri sill II
ration tu have heen iiiuler seal. Ii','/<";iv.
whieh w lit, with the return th.remi, v
1)V the sherill' till Ist.lulv. IHIi-'. < »n the •JStli uf
Till M
I'tained ■ |() (> |',. ((,,-,
iiiiin/iiit ( 'iiiiiii'i
it nf tin ■/',
„/'/',„•///.
7'il
Jii
I Si;.',
li. fa. 1.
mils was siieil uii
t 1,
11 an ai'timi ni im
litatiis
issiiiii|isit, ili'li'iiJ
the jire.sent plaintill's, and endursi'd fur f_''_'l", 1 "":i"t I'lendeil, I. .\s tu all lint f Kill Is. lid,
tl
le same 1
lav tiu' defendant irave ! ""H ii«sumpsit ; •_'. .-Vs tu CIS lis. (1,1.
his eertilieate that he had 110 exeeutimi ur ex-
tents in his hands
(.leeea.se
payment as tu f
iiliii', h
list 111.' lands uf s.ii.l \\ . I piiyment into eou
rt. I'laiiititrtiiiik 1
On the •-'ml Feliriiary, ISIiL', a veil. : lii'st plea; traversed the payiin'iit alli'i;!'
ex. ami li. la. n
esnliie was su.hI i
lUtanddeliveKd seemid; and as to the tliinl
tniik
•II! tllfl
to the ilelendaiit at tlu^
it uf 11. aliiive in.
imiliey ]iaiil iiitu en
irt: Held, that it '
tiuued f.ir t;:U»;, &e. rndertliis writ def.'iidant tu the plaiiititl'
tl
Iverti/.ed, ami the attorney of |,laiiitiU's iiotilied j eliarye not eovered by the other pie
1.! j,'ener,ll l^slll■ to |il"U
IS ; aiiil'W
defendant that the ]ilaiiitillselainieil |iriiii'ity over
the defendant, liaviiif,' swurii that lie haii |»ii|
H.
8 e.xeeution. Defendant, iiutw ithstandiiif,' 1 m nuthing
aeeuuiit uf that i-liarj,'!', iia.^lir
such uotiee, duly sold uniler and applied the pro- ■ eludod from showing that the otliur items wIikI
KSTOI'I'
127ft
lllnll, 'rhl|,l;,|„t,;J,'|
.lilim.UV, iHdll, i,||,l
l>., tlic attiirii.'\ i„r|
uc 111' iii.iiiititfB jiiiij.r
rf^tc.l tllrlvill 1,1
iliint, ilic -ImtiH, (,,,|
,t tllr ilrlilnUiit Wu|
at.' I.I •JMli .Itmiw/
w I'it an AW aii««iT inl
. //./'/. 1H( 1' :,m|
sllrnlV I'lir il l;il..
till' ilay liflnii
; rci'i'ivfcl a li, i,, jj
ire tliali till' Viihimif
ivc n Warrant tn tuil
111" ili'lilor's siiiip amll
tllllM^Ilt llliil'c i'iil|i<|l
H>t IMI Willi lll.sliu,i.[
writ lie iliil iiiitliiin;.|
lite Iwi.-i', iiriiiii^ li;iii|
III l''i'liriKirv, Isiii'i, bel
iiin.-i, K.'> Hi'it liaviiiJ
'I'lii nil liini(;ltit|
•t : llrlil, that ,b a|
u'Vi'i' M.'i/fil, iirtbiitMl
iiiliMiril it ; ami that,!
iilli'i't K. Ill all ui'tiunl
tills, yet tlifv iiivvin-l
10 lii'st w I'it aw a iiisti-l
If sccdiiil. Till' |il,iin.
I ciititli'il til reoivtr.l
lljit ill sllj||j^'tllr>lirr:f,|
I'llitors, ami iml iinrilyl
the lianlviiiiit. 'I'ImJ
i|i|iril, ,'!> till' liaiiknipll
tlir valiilily III a I'l^T
I'lijit ill Iraii'l III tliil
liunl iif fiaiiil. I'i'vi'A
lijii'il t'liiiii ill nynifiiay-l
■i| nil, win II tliuy h.vll
ity tor llnir liayiiiclit,!
Ir' tliiivin liail viMidI
lit III tlic niiti>. I!'i«i\
, S (.1. II. Ml.
• :irliitratiii's aiiiHiintnll
Unity, tlinm^li whivhl
Ihcir liylaw iliirrtiiUl
tliat'tlii' ili'lViulant^
[I, wi'iT c'stiiii|u'ilir"ra|
|uas mil avciTciliiitliel
llinlrr seal. H'i'** v.f
L- T'lini nf I'nri llrM
|.ilns assiiiiil^it. ili'ii'li-l
,11 liiit ClUi; Is. IM..|
L''JS I'.'s. Ilil. IMfitlJ
'.l.-i. ."ill. iTsiilui'. S;i'i|
llititr timk isslK' iilitll«r
iiiyiiii'iit alltgi'il ill ilfl
Lii-il iilia, tiiiik iiiit r
Jlulil, tliatilw.isiiH
Liii'i-al i.ssui' tii|iri'vef
J otlifi- |ilca.s ; aiiiltW
lorii tliat lif hiiilF"^
Itliat rliarci'. \\m\
Itlio (itlicr items wbiol
|,l„.|.l;iiii».itl'wii.'^
i>ntitl('il tiiwiiiilil not nivi'i' till' |iiil(' till' liaiiility III' tluM'iivcii.'iiitci' til tliciluiiia^oH
Imiiiif.v
I Hit" iiiiirt. 'I'liiiliir V. /'Villi'/, 10 Hii rt'nivi'i't'il. S/mirr v. llntnr, '2i (,». IV 277
h
li.'4:.s.
Ih, |,laiiit
llrttiliir
lot
ill li.'iviii^'imt ill II will
,,■ lit' II. jis his will', w
I I'riiiii iUii\ iiiK till' iii.in iaj^'i',
III W illi'll
rill
not
iiCi/i V.
rM'-^H''.'- •'•''»■<•
Till' |iliiiitill' siii'il il.fi inl.iiit fur .•i<l."i(), iiiiiiu'v
li'lit. 111 W liirll ili'l'i'lulaiii plraili'il it sit nil' iin.iilist
!.., mil' 111' till' [il iiiitill-i, a ptril liy I,, in natis-
I'litiiili. It a|ipi'.ii'('i| tli'it ili't'i'iiil lilt li iviiii; liiiilt
a Iniini' till' I.., I'nws (li'iiiamU unni' mit "I tin-
Whiri' ft
Iniisui""'
ip'Utv, I'V lilH "«ii iiiinliirt iinil ail- < t'lU t, ami tllcil
t ■ ... *i .■ ii. 1 • I I ^..f»i .fr . ti. .* ti
iilirlti
I'jjiitiati
fur
hiw< jiiHtilii'il till' falling,'
itiilijri't til till' IIMO iif Hllrll nailK
Iniiiii-. In: '■•"I"
iMiiiiiMiiinii'i-.
1- .(', L. Cliiiinli. Itii'liiiiil.s.
Iiiiii liy a wi(iii;< [ Ncttlcint'iit ; tli.it tin' .sl.'id \v,im nii'iitiuniil, ami
L.'s Miiliiitui' iill'i'icil til pay .•^li.V) in full uf al'
/;
(/ .(/. V.
I:u'
IK'
|tlie*i'»li^
lm'»ti''l
Ik :> |>
Siiiii/i. I I'. K. in ittir-, I ikiiii; tlii-< sl.'iO into ari'iiiint asa iri'ilit
til I,. Iii'l'.inlint ri'fiisi'il ti. tiki' Irss tli.ui .':<7(M),
that IV IHT'*"" liaMiiL; ciiinctn livi' witlilii ,,(■ {|
il I.
W llnsi' snlii'ltiir
Im'I'i
nil' lie wasawaro
, ... v.ii' Miiit, [laiil -"^iriO. ami Jiftcrw iiils paiil !?•'»<)
,f amiis.iiK't' iiftiT tlii'saiiii' liiil Im'i'Ii j,,,,, ,.,,„,.f^ „|,j,.), „.^,„ taki'ii mit. 'I'l
iliil lint jirevi'iit lii.s cnniiiliiiiin
if it
lilic luiisiviicf.
It
riiiiiii y
II
m.
wcri! aski'il wlii'tlnT I., nr his attmiii'y a^'ii'cil
alisnliitily til allow tin' Sl.'iO as ii |i:iynn'iit nii
tin' iiiiitiai't, or only for the saki' of ,i .•Httli'iinnt,
I ISlil wliili' ili'tVliilaiit was Iniililin;,' a tan- wliiihwas nut arriMil at; to w liiili ili'li'inlaiit
III! laiul ailji'iniiiK t'lf |ilaiiitiH's, tin' plain ; nlijcrti'il, thit if tin' n(';.;ntiatiniis prnrcciKil nii tlni
(lail ilifi'inl'ii'f to pioi'i'i'il. 'I'hi' liiisi siippo.sitioii that the .'^l.'iO was to lir so .'illow cil.
IlKry
Itilftiu'iiiii'
igetti »iw Clllllllllllfl
the .saiiii' vi'.ir ; in IHtill ami I,. aflciHanls
il t
lie S700
• lill'i
rent
|lililiti"iis
iii.iilo to tho ImililiiiLi't with tin' iimlirstamliii;,', h
liiMiliil so tn st itr at till!
InliiiititfM kiiiiwIi'lK'' i'li'l in'i|ilii'.'<i'i'nii' : •'i"! tin' tiiiir : lli'M, that tin' iliii'i'tion was ri^'lit, ami
luljiiititl iiiaili-' I'" rninplaint until ISd.S, tlmiiyh [ a vcnlict fnr tin' pliiiitill's was u|iln'lil. Ymiiiii
llU this tiiiii' till' liiisiinss hail ln'i'ii carrii'il on, ilnls. '/'i(///i. ;■,•_*."> (^. It. ."iSH.
|«,1 the pl:ii>;t>IV hail ivsiilc'il on tin' pri'li.is.'.s , __,. ^^^^_
|,dii,mmg: .-H.'lil. that h. hail 'l^''';'n;nl li,in.s,.|l , ^^ ^^^,^^.^,^^. ,.^_^, ^_ _^ ^^^^^J^^ __._ J, . ..
■.J. niiiif • -Mi'lil mac III' nail tiunirirn iiii.^i-o , ,, ,. v i ■ ■ a- i 1.1
lldjumiiii,'- """•/'""' 1 ,• . . , a pi'iriltv tor not I'l'tiirniiiL' a loiivntioii to tlio
lfc,™n.lii'f III t'liilltv, on t 10 Ki'iilin' "' •' taniit'iv ,, . w' • 11 11 .1 > .1 1 .• 1 i
lljiiBiri'iii' iiii'l"".'- " - f' ,. ■' (jMiartir >tssioiis : Hi lil, that llii' ili'k'inlaiitH
Ite a mimii.'i'. "•'"''''^- ''','.':''''' '^•ihavinir iirtnallv .'nnvi.li'il ami iiiip'..s.'il a lin.',
. Ill appi'al, IS ( hy. I.!\ ' . . • '
ibtiiii:
|KB;alliriiii'.liii.il'l»'iii. '••< ' "V. »•>>. ', |,, „„^ ,.^,;,|,, j„ j|„, ,i,.,.| ,|.j,'| „„ t|„
Tnaiiaitiim lirniiLilit for twoi'illsoii stnik, niic L;iniiml that it iliil imt shi'W that he hail juris-
■ ' '' '' ilii'tinll tn rniivii't. //i/i//< (/ i|. I. V. I'lirt'n, I .'i
('. I'. ;ti;(;.
^jlfiHi till' nth lii'iv'iiilii.'i-, I.S.'i.S, ami till' ntlii'
|i*thii;tli.liini', IS.'ilt, ili'li'inlaiit piiil intncmirt
KliritiMll, ami pli'aih'il ii"Vt'r imh'liti'il tn thr
KiijDil. .Vttlii' trial III-' ailniittt'il liaviii',' lu'M
ieit.«.li, luit alli'Hi'il that on tlii' .'illi of Ki'lirn
^•, Iv.'i, 111.' Innl tran.sfrrrc'il it to .M., ami In'
lei'Iiimtciifiir liaviiij; siilHi'ipU'iitly paiil the lirst
lsiii.-il iiir, liy st.itin;^ that hi' hail ,L,'ivi'n a
,1 til till' iilaiiitill's to pay tli.it call, ami thuri.'-
irtiliilsi-i iintwitlistamliii.i,' tin' tiMiisfcr. To
mvt the tiaiislVr, tin' plaintill'.s' tiaiisfci' Imok
.i jiriHliuiMl, ill whii'li it was ciiterol, tlii'
m^I^■rallllal•L■llltalH't.' lu-'iiii,' siyiii'il liy l»., who
jtulhiii till' plaiiitill's' inanaiii'r, as attorni'y for
kli Mrties, ami tlii'ir stock linnk was also prn-
Iwl ill Hindi "till' stiii'k appi'iiri'il in -M.'.s
jjine Jiiiee tlio .'itli of I'Vlinuiry, IsriS. Thi'
Mfi's III attiiriioy w I'll- lint piniliiiiil, Imt till'
(liiiititlV si'i'irtary, wlin prmlin-ril tin' Imoks,
milii- liilii'Vi'il tlii'V I'xistcil, anil that ;ill tin'
a]i(i^» I'll' ill till' li.imls of the plaiiitill's' altor
' , tint till' traiisfi'i' was Nuili'ii'iitlv
'Till' pl.'iiiitiir was ,'it lii'li iii'ipnlis wlii'ii tin'
i;nn:|s w liicli III' Irni yi\ I'li to ilrfiinlants to rany,
(cxi't'pt till' iiii--siiii; liii\ siii'il fnr) .irrixi'il tliiri',
ami I'l'iiiiiiiril until soiiii' time in the inniith fnl
lowiii'.' : Hell, tli.it li'.' was I'esiihnt there
within the eomlitioii 111 the ileleinlaiits' eoiitract
relatiii!,' to resiileiits lieynml tlnir line, ami tliilt
li'uilij; naini'il hiinsilf as the ennsi;,'iiee at that
plare he w.is istnppeil fl'cin ileliyin;^ sileh lesi-
ileiiee. I.ii I'liiiih v. Wiiiiul TniiiL' A*. IT. Cn.,
•-'(i(.). I!. I7'.t.
Siiiii'.' on ,111 aw ir.l will est'ip a pirty from
il'-iiviiii,' the Mithnritv of the arliitr itnl'.-i. Illnck
V. . I //-(», 17 «'. I'. -Mtt.
( '.I'taiii ileMms e.xeeiiteil a iliiil i\i assiyimu'ut
Inr [iiynii'iit of ereilitms, Imt not in aeennlamiu
with the llisnlveiit .-Vet nf ISCil. Tlie ilefemlaiit,
,,,,,,,, , ,, ,, siilisenm'iitU tn this ili'i'il, issiieil a writ nf exeeii-
•V I'l, tilt tie tr.iiis er was Niiili'ieiitlv ,■ ' ■ .'., . , , 1 ^i , 1 1
■ , ', ■ . ,, ■ ,■ 1 • tioii at;. mist the ilehtois, , mil then took prnt'euil-
riiVti li;!' til' niiriioses *oi this aetion, liellli.' ' • ■' ■ 1 in \ 1 I' lu.'i • i.
',',',",11.,.. •,. ... , ,r nil's 111 llisolvelii'V, llllilei' the .Alt 111 IS(i4, aiMlllst
i^li-aiiy till- lilailltllls nliiee,' as a-el.t Inr linth ^,^^,.,. ^_^^ ,.^,,.',|_^. „_,,^^,,.^^, ,^_,,_^,,., ^,,. ,.,.,,,(7^,,,.^ .
irtii'v anil I'veiiKi.l/.'.l 11. their k. : that it ,,,,,,, ^,|,i,,,„i , j,,,, j,„, „„.„t „,■ tho ( '. P., U!
,>,m,,.ci'S.ant.iproim'.' he l.oml «,venl.y ,, ,. ,,-_ n,,^^ i,,,, ,,,,i„„„„.„t ^as an aet of
ifiii ant ; ami t i,it 1 e em iinl was not estop- 11 , 11 1 11 1 1 l
' ., , ,, , ■ 1. 1 , liankiiiptey ami vmil, ami eniilil imt lie setup,
1 hv laviiii; pan t le e:ill iiiaile III |)eeelillier, ' ,. \ ; ■ , , ,, '.'
f" ' . ^1.111. .■ 1 ,1 ; oil the issue loineil, tor any piir lose ; ami that,
>, trniii iissi'itiii'4 that lie hail traiish'rreil the I , ,, ■' 1 ,■ ,, 1 ,, ,, ..i' , ' ^, ' ,,,• , . , ,- ,■.,•
„ ,, . ,1 , ,, , II ■ • ; t lii'iilnie, the iletemlant, the exeeiitmn plailitilt,
Buklii'lori't nut ii'i'ea 1 was iiiaile. / rnciiifinl . . . . ,■ ■ 1, 11 1 -.i
f ,, .,, , ., ,,, ,, I, -.,., I tlnmith pi'titiniur III iiisnlvenev, eoiilil, iiotwith-
U'lii-iiiifi- i 'I, III I iiiiinlti v..S/(((»', .• ',1. li. .».».(. ' » r 1 r ■ ' 1 r 11
I ' ' 1 staiiiliiiL; Ills proiii'iliiius 111 iiisolviiiey, loumleil
.\ ilisi'liarj;i nf a nioi'ti,'af;i', not lieiiii;- uinler | on his jiiilnineii! at law .iml the assi;,'iiiiii'iit,
', llthl. Mil I'stiippel against the reeovery of ■ elifone his exeriilioii a;:ainst the ilelitor's estate,
'It'hl, il nut ui truth )iaiil.' Iliili/niry. Sluiili'l, | to the linslpnliemellt ill the lest of the ereilitol'S.
i lla,^'al•ty, .1., .\. Wilson, . I., ami .\lnwat, \'.('.,
Wliiri'tlR'i'i'isaeiivi'ii.'uit to imleinnify, ami ' ''i^-^- Tliur„r y. Turnnirr, Is ('. I'. •J!l, in ap-
w rwivi'iy against w liieli it wa.s given was ; 1'*' ''•
toiiiwl withiiut I'lillusion ami fairly ilis|inti'il, ! Seinlile, that on applie ilinii to tin.' iirnpei'eniirt,
le cuvi'iiantni- liaviiii,' an op|povtiinity of inter ilefemlaiit iiiij,'lit have liceii restrain "il liniii .as-
iig. l^uajru, wlictlier, w hen sued, he eaii ilis- j serting ;uiy right umler the exeeiitiuli at law. JO.
|4I
■ III
IMAGE EVALUATION
TEST TARGET (MT-3)
1.0
I.I
1.25
V- llllll
ilM
M
Z2
1 2.0
1.8
U 111.6
Photographic
Sciences
Corporation
\
#>
V
1.
N?
:\
\
^\^
O
.V
/s
6^
n.
^
V
Pt?
23 WEST MAIN STREET
WEBSTER, NY. 14580
(7'6) 872-4503
4r
w-
w.
(/J
\
o^
m
T-V
1279
ESTOPPEL.
12?0
Held, affirming tlio jiulgineut of tlio Couvt of
('. P., '20 O. R 4!t0, (Jwyiiiie, J., <liss., that thu
Ijjiw Society were not released, uiidur the fiiut.s
!iu(l eircuiiiHtauces tliere set forth, from tlieir
eoveniiiit to repair ami inaiiitaiii the Imihliiig
known as "Osgoode Hall" for the aeeoiiimoila- '.
tion of the superior eoiirts of common law and
ecjuity ; and that no estoppel arose in favour of
the society against the crown in conseipience of
the several acts of the legislature that had been
passed in relation thereto, /ici/iiiti v. Tlic Liiir
Surk/j/, L'l 0. ]'. 2-29.'
To prove a judgment recovered in Lower
C!anada, an instrument was produced headed
"Province of Quebec, District of Montreal, .Su-
perior CVmrt of Lower Canada," and setting out
tiie judgment of thj court, and eertilied to l>e a
true copy un<ler the hand of the protlionotary
and the seal of the court. It was olijectcd that
tlie judgment was not suHicient, as the defen-
dant had not been personally served with pro-
cess in the action in the foreign court, lint
Held, that as defendant liad procured bail to be
put in, and so obtained his freight which had
been attached, the objection ctiuhlnot be raised.
Ti/toH v. MrKiii), 24 C. P. !U.
(iua're, whether a married woman consenting
to a breach of trust can afterwards complain of
it ; and, Semble, if she make a representation
and encourage another to .act upon it, she will
l)e cimipelled to make it good. //«/"■ v. /imnl,
SCliy. 380.
Two years after a mortgage had been in part
paid off', the mortgag(n' applied to the mortgagee
to re-borrow the money, agreeing verbally to
return the receipts for the money paid, so tiiat
there should not remain any eviilenee of payment ;
and that the amount so rc-borrowed should be
considered as of the original charge created ty
the mortgage. .Some but not all of the receipts
were returned to tlie mortgagee, and the money
re-advanced by him upon the terms proposed by
t;-; mortgagor. Under this state of facts, the
master in taking tiie accounts ilii'cctud by tiie
<leeree, allowed the mortgagee the full amount
of the mortgage. On an appeal from the mas-
ter's report : -Held, that the principle upon
which he had taken the account was correct ;
and that the niortg.agor was estopped from prov-
ing the payment of any portion of the original
sum advanced. — VanKoughnet, C, duljitante.
y»;//;,s V. ailchrist, 10 Chy. 301.
A debtor being a vendee of the crown of land,
and in default in paying the purchase money, a
creditor obtained execution against his lands,
and purchased his debtor's interest for a sum
e(puil to the debt and costs, and took the sheriff's
deed accordingly ; — Held, that he could not
afterwards repudiate the purchase and claim his
debt, on the ground that the debtor's interest
was not salable by the sheriff. Ft njiinoii v.
Fergunoti, 10 Chy. SOU.
IV. Exceptions.
The assignees of a bankrupt in suing the sheriff'
represent the interest of creditors, and not
merely the person or estate of the bankrupt ;
they therefore will not be estopped, as the i)aidv-
rupt might be, from disputing the validity of a
cognovit given by the baidcrupt in fraud of the
bankru])t law, on the grountl of fraud. I'onloii
V. Moodie, 7 Q. B. 301.
Replevin for horses. Pica, justifying; tli,.t;ikj„„j
under a w.irrant for school taxes. laMiliriiti,,,''
setting out facts to shew the rate illt'i;,i|, aini I
averring that tlie plaintill', after si'izuni ni' tli',.'
goods, at the re(piest of the collfrtiir iiinl tin,.'
tees, give his note for a sum nanicl ,ii,,t sivin;!
thac it was tiie amount due by iiinil, iiav.ilik' t'll
bearer, which was acceptc<l in siitisf.-u'tinii „f|
the taxes : --Held, on demurrer, i'e|iliiatiiiii \\m\\
f<ir, the delit lieing due to tlie public, ovtii ifl
the note had been .alleged to be fm- a.snlli(.i|.,it|
.amount to ]):iy the rate, yet tln' iiii|]|-,,|it.| ;,^..
ceptance of it by the trustees woiiiil imt |iii;\>iit|
them from afterwards distrainiii"' ,S,;,// ^ u,
Kira,', ISQ. I'.. Hi I.
Qua're, whether a tenant nr Hcimisit i.i I.ukI,
is estop]ieil from disputing his laiiillnnl's nri
licensor's title as being void mi a ^^t;ltllt;lKleI
objection. Ilalliick v. Wilsmi, 7('. |'. ;.>s.
There can be no estojipel on a sliciitl'. whtnl
sued as an individual, liy rea.sou of a dct'd (•.xi.j
ciited by him exclusively as a )iiililii/ ntlioLr.I
Ki.i^iichy. Jiirri.-t, !•('. P. lofi.
As to how far tin; niuiiici]ial council nf nnei
year can be estoiijied by the acts in pais cil
council of a preceding year : Sc(! ' 'nr/i'irdliin, ..fl
liKjii-.toll V. ('htiilii-trh; 111 (>l. IS. 2Sil; .l/./,„:;.|
/iii/i/i/ (i/ K((xl Xisiiiuri V. //ijc.vf mil II, 1(1 (,l. Ii.,"i\'j.r
On an indictment for false prttcMci's, it m\
peared that <lcfcndant held the title nf cirtiid
land behinging to one A., who lived in tlia
United States. A. exchanged it with il. itlia
prosecutor,) for other laud, and gave an milcif
on defendant to convey to II. Wlicii If. pre^
sented this onlcr, defendant reprcscMifcil tli.ita
claim having b(!cn niad(^ against him fur A.'^
debts, he had sworn that the farm lirliin;r.lti|j
himself ; ami to keep uji the ap|iearam'c "I tliii
being true, it was agreed between II. and ilil'iuJ
dant, that a certain siun should be paid (iviita
H. to defenilaut on receiving the deed, as Imtlia
purchase money and iuiniediately retiirnnl. IL
borrowed i^TOO for the purpose, .-iiid they, witll
H. 's brother and others, went to a suhiitur'J
oflice, where the deed was drawn, with a imiI
.sideration expressetl of .'i<.'{, l.'iO. The .!>700«;i
handed to defenibint, ami counted ovei' hy liin
as if it were .'i!!2,000, and notes given liy I
his brother for the balance .si, l.")!). llflViidanI
insteail of returning the money and imti.s nid
away with them : — Held, the public intuivstliciiii
concerned, that the principle of estniipid «niilJ
not apply, so as to prevent II. from assiTtiiiJ
that the payment -wliiidi he professed to make il
good faith was in fact only a pretem'c. Il"jin\
V. Hmiiij, 21 (,t. li. 523.
B. acted for the plaintitV, who owned a iiiiird
which was matched to trot a I'aec^ with aii"tliej
mare for .§200 a side ; ami the iiiatrii was ir;iilj
an(l the paper, stating the terms of it, si,i;ni'd li
H., and by one (.!., who had no interest in tli
other mare. li. deposited .*-'(MI of the |il;iintillj
money with defendant as a stakidmlder, lnrwhicf
the plalntiir .sued :-llei,l that the traiisu.W
wasilleg.il, umlcr I30eo. II. ,e. M), C netM«mi^
the horse to be run by him ; and that \W\'\m
tiff' was not estopped from shewiii.u' the ntlisl
horse and the money to be his, fur thuivc"iili
be no estojipel again.st shewing the ilk'ga'S
created liy .statute ; and that he was ePtith'i «
recover. BaUvmby v. Uildl, 23 (l- B. 48:'.
12?0
isti fy ill',' till' tukiiv'l
iXfS. la'iilii'iitiui'
lu nitu illoyiil, 11,1,1
t'tt'l' sciziin> 111' tl|„
oillu^'tiir ;iiiil trih-l
UlUlluil iUiit s.iyill!'!
I)y him I, |i;iy;iliiitii|
ill siitislai'tiiin ii(|
cr, i-u|iliriitiiiii liiiil;
tiii^ liiililic, ovi-ii ifl
hi lie fill- ii Miillk'ji-iitl
t till' iiiiprnin'i ill-]
< wmilil nut iH'eviiitl
iuiiig. Sjii-ii V. M-
or liciMisi'o 111' liinl.l
^ liis laiiilliirirs nrj
)iil (111 a ^^tatllt■,ll■lo|
(III, 7 ('• !'• lis.
:1 on a slii'iitV, wln.nl
L'llSiPli of a ilcnl ixc-
as a jiulilif utlii.'er.j
'id.
oii)al ciiiiiK'il "I niiel
u acts ill |iais uf the
; Sc(! ( 'ui'inii'ttfiiiii ijfl
(^>. J!. -JSil ; .l/i(;i;ii.|
»/'.M »!((», Ill ij>. is.ri^itJ
,lsi! jiri'ti;ncf.-i, it iiii-j
[ tlio titli; 111' oei'tainT
., wlio livud ill tlie
ML'tMl it with II. itiiel
il, ami Liavo an unlcil
„ II. Wiii'ii ILine^
lit rciiK'si'uti'il tliiit s
against him t"i' \.'i
[the farm hi-liiii;.vltil
uii|iraraiiff nt tiiii
■twi'eii II. ami ililVul
iihl hi' liaiil nv.rt«j
,tlm tlceil, as fill l'
liati'ly ivtiiriH'il. Il.|
^iiisc', ami tluy, withf
wont tci a siilii'itiii'^
drawn, witli a ni
1.-1(1. 'I'hf !<T(IOW;i
iiuiituil iiwr livliinl
tos nivoii liy li..imh
S|,i,-)0. lifliiiluil
iiiiiuy ami ii"tis lanf
, ^iuhliciiiti.Ti>tl»iii|
lie of u.stdiiiiil «"iilJ
it H. fi'i'iii :isM'i'tui
liriifcssi'il tiiiiiaki'iB
a invttiii't'. It"ii!ii
, who (iwm:il aiii:ird
'a rai:c with :iii'ithii(
the inati-ii was ii'*lj
.rrnis of it, »igiii''l lii
III no intiTi'.st ill M
.■^■JllO of the iilaiutill]
,taUfholihT,l.'r«iiK
that the ti'aiisiitiiil
I ,. 111. ('. iiiit"«i"'ij
,':' amllhattla'l'li'3
II .shfwiim till' "tha
,, Ills, for tlK-i'f oiiilj
thu ill>.'f!''li'|
12-^1
EVICTION.
1282
V. Pl,EAI>I.N(i.
Ih'WUI,!,'
w a^f I'l'
titK'i
III, -j;) (,». 13. 4S'.'
]\'lifit )iioi-"iri/.] — Tn an action agaiiLst tliu
Idienlf i>i"l '''^ .'iuretics for not arrustiiig a party
"( (li^, plain tiU"s suit :---IIi;lil, that defendants
WK iiiit coiiclnded with pwji^rd to the fact of the
arrest ht'iiig made, l»y the dueision in that suit in
I the Comity <'oi"'t, no estojipel lieing pleadeil, nor
(,,,1,1,1 such decision act as an ostoiipcd, being res
inter alius acta. Mr/iifosli v. Jurris <t <if., 8 Q.
J.,-i;!5.
luM .iction for the inircliase money of land
I cdiiveveil. a receipt nniler seal in the conveyance
hg eoiielusive eviilence under a jilea of payment,
L,„i it ia niiiiccessary to plead the estoppel speci-
allv K'Irlii'iii ^'- ■'"'iiiiffi, -0 i). 11 .'H,'!; Sjiiir/iii;/
Plaintiff sold anil conveyed to defendant cer-
(ji„laii,l, the deed eiiiita.iiiiiig a receipt for the
iiuriliase money, ^HOO. with a receipt for the
mmluse money also eiiilorsed. Plaintitl' then
iiieil ild'e'Uilaiit njion the common counts for the
iiiiniirije' money of the land, .■mil on an account
gtiteil The defendant pleaded, among other
flea.*, mviiieiit. After the s.-do defendant told
line .\I. tiwt he had only jiaid idaintifl' S4\, and
(fell to pay him (M.I whatever plaintitl' was
mlliu" lie slioiilil. It also appeared, though not
notverv clearly, that the plaintitl' was [ireseiit at
tteciiuver-iatiiin : -Held, following the two last
c«s, tluit the plaintili' was ci included by the
reoeiptiu the deed and that he could not ro-
ciivtr im either count. C'k.s'k// v. Mct'all, 19 C.
P. 110.
In an aetiiiii of dower: — Held, that the do-
mivlaiit cimlil not, without specially replying it,
rtlyiiiiiiu the tenant lieing estopped, by taking a
iwtyanee from her husband after marriage,
fan sliewuig that the seisin of the demandant's
bn-liaml wa.s as joint tenant with his brother,
anil tliat he died lirst. JJa.tkUl v. FniMi; 12 C.
P. a
Certain goods of H. were seized under an
Heeiitiiin at the suit of defendant, and claimed
ktlieiilaintitr. The issu-^ was decided in the
phintilfs favour, who then sued defendant for
I lie seirai'L', which he had directed ; — Hehl, that
tie adiiin wouhl lie, and that by the Inter-
pkiler Act ((_' S. U. (". c. 80, s. 5) the result
i oi the i,s.sue was conclusive as to the plaintill's
ridit til the goods, though not replied as an
ilielti) ilefemlant's plea that the goods W"ere
I B'jt the iihuntitt's. Ihirnici- v. Ooiiiiihck; 21 Q.
I
W/ifi' /((.«('.<.]— Held, that defendant having
fleaileil til the declaration as containing two
Riarato oimiit.s, couhl not afterwards object that
tbc w;is hut one. Mtii/ <■/ <tl. v. JLnrlanrl ft
I'U'JIJ. H. fl(i.
Hehl, that ilefeiidants were clearly not estopped
miiulenying that the instrument sued on was
mote by having, in addition to the plea of non
lecenint, iile.aileil other pleas in which they de-
nieil their liability to pay ' ' the said jjromissory
I We," BtndUm v. June.-! H ai, 19 Q. B. 517.
An action at law having been brought upon
I » promissory note, and the defendant having
pleweil that it had been given as collateral
Wnty for another debt, which had been paid,
[wailduceano evidence to establish this fact,
81
was Held precluded, in a suit afterwards insti-
tuted in the Court of Chaiicoiy to' enforce the
charge of the judgment i.gain'st lands, from shew-
ing any payments prior t.i the time of plea
pleaded.- -Msteli, V.l'., diss, i'arjicntir v. Tin:
Ciiiiniii'rcidl Jlniik of Canada, 8 L. J. 2()8, in
appeal.
A defendant at law pleading a plea of pay-
ment, and either failing m neglecting to estab-
lish the )ilea, cannot afterwards set up the same
fact.s as a defence to a bill in ci|uity' to enforce
payment of the judgment at law. 1 h.
Action on a judgment recovered against an
executor. TTie declaration set out the judgiiieiit,
alleging the issuing of a ti. fa. and a return of
iiuUa bona, aiul suggested a devastavit. I'lea,
that ill the action on which this action is founded,
the defendant jileadcd plene adiniiiistravit, and
that the plaintilf I'cplicd lands, on which judg-
ment was given : that the lands were assets in
the hands of the defendant as executor :--Held,
that the replication of lauds was a full admis-
sion of the truth of the jilea of plciie adiniiiis-
travit ; and that the plaintitl' by his replication
in a former action being estopped fniiii .setting
up a devastavit now, the defendant was at liberty
to shew the true state of the ease to save him-
self from personal liability, //(n/nii v. Mnn'i.i.-ii/,
U ('. 1'. 441.
Held, under the facts .-ipiicariiig on the plead-
ings, that the denial by defendants, in their an-
swer in (.'hancery, that the agreement sued on
in this action was illegal, could not estop them
from asserting such illegality here. Carrel al.
■■'. TannahUf, H al., 30 Xl W. 217 ; 31 Q. B. 201.
In ejectment, — Hehl, that it was uo admission
of the title of the party through whom defendant
claimed, that the Jiarty through whom plaintiff
derived title had, long after his title liy posses-
sion had matured, tiled a bill in Chancery against
the former for specilic performance of an agree-
ment for sale of the land in ijuestion to him.
Miil/iollamlv. Conklin, 22 C. P. 372.
^Vhere a party alleges the legal effect and ope-
ration of an instrument, he is bound by such
allegation. FoaUv v. Ucall, 15 Chy. 244.
A, tooK a conveyance as trustee for B. B., in
answer to a bill by a jierson claiming the pro-
perty against both, was induced by A. to swear
that he (B. ) had not any interest in the property:
— Held, in a subseipient suit by B. against A.,
that he (B.) was not precluded from shewing the
trust. Wa.thliiirii v. Firr'ix, 10 Chy. 70, in appeal ;
.S. C. 14 Chy. .-)l(i.
ESTREAT.
I. Op RE('0(iMZ.\Xt'E— .See llECOflSIZANCE.
By a liberal construction of the Estreat Act,
7 AVill. IV. c. 10, the court will, in certain cases,
relieve jurors from Knes imiiosed on them at
Nisi Prius, after the tine has been levied by the
sherift'. In re Cole, G O. S. 425.
\ I
;■!
EVICTION.
See Landlord and Tenant.
1 :.'
i t.'.i
mm
1283
EVIDHNCE.
I. Matikhs JrnrciAr.r.v Nottc'ed, 1288.
II. Admissions.
1. li;/ r/ni'/iiKj-i and Pnicfic, I2Si).
2. Ai/iii!it<iiiii.'i iL-itliDitt I'lrjui/iri', 1291.
3. Jii/ mil/ iii/iiiii.it Piiiif!/iii/s mill Sure-
/(V'N, l'2!)2.
4. AdiiiU^ionx III/ /'iir/li'K, 1292.
5. Ari-wnit.-t Hi iiiIithI, 129(5.
(!. Ailiiii.in'nin of Diiila iir Titli\ 1297.
7. Otiur CaxcK, 1298.
8. Jiy Atliirmijx — .SVc Attorney am»
SOLK'ITOB.
9. Bij P(irfiriil(ii:i of /)i'i>iaiii/ — Sif-
PiiAcTiiK AT Law.
10. fii (Jriiiiiiiaf C'ati'n — See Ckimixal
Law.
III. PuESfMPTIONS.
1. As Id /)i'i-i/.i.
(a) ai-iiin-allii, I.'IOO.
(b) A.< tit Mnrriii/ U'dwiii's Ccrtifi-
rali's nil Jh'iils — (Vic HrsKVXIl
AND Wife.
2. As to Erii-tiirismiil fntirliiwatioiis.
(a) III IhrdsSi'c Deed.
(b) //( Wills— See Will.
3. Frwii ii<ni-/iriiiliirliiiii uj' Boohs or
Accounts, 1304.
4. As to nmtli, bSOa.
5. Arisiiii/ from (tjlic'utl Appoint mints
uu'd Arts, 1305.
0. Otiiir Crisis, ],S0,").
7. Of Li!iiliinoci/—S<i' Bastard.
8. Of Miirriiiiji .
(a) (Iriieriilhi — iS'rt' Husband and
WlKK."
(b) //( Actionsof Bower — See Dower.
IV. PrIVILKUED CoMMrNICATIONS.
1. Attoriiei/s ond Solicitors, 1307.
2. Willilioldini/ Documents on tjroiind of
Privileije or Prirucij—See 2>. 1340.
v. Attendance ok Witnesses.
1. Xoticc to j)firties to Suit to attend
Trial lis icitne^ses for the o/)po-
Kite piirti/, under Id ]'ict. c. /,'/, ,s.
!.', (('. S.'C. C. c. ;L', s. lo,J 1309.
2. Process.
(a) /'((/• Serricp out of Ontario, 1309.
(b) Otiier Cases, 1310.
3. Pees of Witnesses.
(a) At Trials or Em/niries, 1311.
(b) At Jmiuests—See Coroner.
(c) Tiu-ation of — See Co.sts.
4. Ik'inedi/ for Non-attendance.
(a) Attachment, 1311.
(b) Other Cases, 1312.
5. liecoijnizance — See Recognizance.
6. Before Arbitrators— See Arbitra-
tion and Award. I
EVIDENCE.
VI.
i2n
Competency ok AVitnessks.
1. Piirlits to Suits or I'l-uer,,!;,,,,,
(a) Before Li \'\ei. c. 7o, 13i;j,
(b) Under 14 .(• 1.', |';,v. ,•. i:n^ 13]3
(c) Under 1(1 Vicl.c. I'l ,'c ^ ;• ,'
c. J..',) 1314. "■ •
2. Husband and ll'j/V, |;i]4.
3. Parties Interested.
(a) Before /,.' Viet. ,-. ",i,^ l;i|,-,
(1)) Under l,i Vict, c.'i 1 1,11 ml ii |- ,
(o) Other Cases, 13l(i.
4. Il'elilflOUS lielief 1317.
."). Other Casis, 1317.
(!. In Criminal Mollrcs — Sw ('i;nii\u
La w.
VII. Examination undki; ('(i\imi>m(in,
1. Apiilicittioii for, iiiitl Uxiic if r.„|.
mission, 1317.
2. Puhnciilioii, 1319.
3. Irreiiu/iiritiis in, und I'lliirn i,f,
(a) Affidacitof due liiknui^ l;)ii).
(b) Jieturn, 1321.
(c) Other Ciisis, 1,3-Jl'.
4. Costs, 1323.
5. Other Cases, 1.323.
G. De bene esse— See ji. 1.3.30.
VIII. Letters Rooatoky, 132.").
IX. Examination ok Pahtii:-! ami W'n-
NESSES OUT OK Collil'.
1. At Common Law.
(a) Under Jnterroi/iildci's, ]^i',,
(b) Under the A ilmiiiiflcaliim ufj^ '■ |
tice Act, 132(i.
2. /;( Chtincerij,
(a) Order and Xolice, 132(1.
(b) Time of E.i-iiniiuiiliiiii, l.')27.
(c) Where Taken, 1.328.
(d) C'ross-craminalioii, 1328.
(e) Further, or l\'e-exuiiiiiiiiiiiiii,\i^. ]
(f) PrOinteresse sllij, 13.30.
(g) J)e bene esse, 13.30.
(h) Pitblicatiou, 1,3.30.
(i) Other Cases, 1332.
3. Under t'ommissiiiii — Su' p. l.'ilT.
X. Inspection, DiscovEin, \.M) I'liubn-
TION OK DOCU.MKNTS.
1. At Common Lmc.
(a) Apidicalion fii\ 1334.
(b) What Docuiwiilt, 13,')4.
2. /;* Chancer!/.
(a) Order to Proilii'v, 1,3.3,').
(b) What Pocuiiiriifs, 1331).
(c) Withholdinij hccuune IhmnU^
soui/ld are nut mutifwl, 13,1S.
(d) Withholding on the iiromnh i/j
Pririkije or Priruci/, 1,339.
(e) Other Cases rehttiiuj lo Pm(tkt,\
1340.
1285
EVIDENCE.
128G
TNESSES.
f/A C.s— .S'm ClUMISVi,
ir.i; ( JiMMis>iiiN.
r, II III' /.-■.<»(' uf Ci,,,!. ,
f P.VKTir.-! AN!' Wu-
m CiiiiiT.
\I. Evil I FN If-. AND KXAMI.VAl'ION (IK WlT-
NKSSKS, AT TRfAI. OK HkaKINU.
1, l',irl!i:i til SiiU, 1341.
2. Ai Uiiiriitij dill/ /'i-liiiiriiiij, 134'2.
;i. Al''< r //"triiiii, 1;!4l'.
4. l!i I'liMiii;/ fii A ii.iirir, I'M'.i.
5, llii'itxli'iiiij Miiiiorii, 1344.
g. Cmifi'iiiHrlinil Witiii-ia-i.
(a) On Cnlhifiriif h:iiif', 134.").
(li) rw/(«'/- CV^^■.•,s■, 134.').
7. o//(M' rK.vc-t, KUC.
\;ij .Trrmi VI,, Okkuial, and othki; I'i-iilic
hiuT.MKNTS.
1. Jiiil'inii'iilx, Oi'ifir.-t, mill JJi-nrm of
l-'ni-lii/H ( 'illlrl".
(a) I'l-iK'j' i>j\ i;U7.
(li) Effi'i't of, "»'/■ /iiiirfir Cuiicfuslri'
"Sl'e Jl'DOMENT.
2. Olliir Jw/iiiiifiifx (Dill Dea-K's, 1348.
(a) Efi'<:l of Jiidijiiiiiif ill Eject mi'iit
"_,V,r K.IECTMKNT.
(b) Kfi'cf of Jiiihjiiii'tits in other Ac-
lioiii — See JuDcniKNT.
3. Pfiof III/ Copiex Olid E.i:ti\iel.-i, 1349.
4. Other Caxe.i, VS'il.
,"). I'lvhiile mil/ f.ilterx of Ai/iiiiiiUtrn-
limi—See EXECTTiiHS AND Ad-
MINIsritATlHtS.
fi. Pi-'iif of Hjl-lmcx — See MVNK.'II'AL
Corporation's.
XIII. I'RIVATK DocrMKNTS.
1. /'/.(»,-•, 13.-)3.
■1. Aiieli'iit Due nine 11 /t, 13/i3.
3. Deei/".
(a) Ueiieriillji, 135.").
(b) Priinf bi/ Secom/an/ Evidence —
See p.' 1371).
(c) Memorittlii — See p. 138J.
(il) yj// Coriiorafi'iiDi—Sie CouronA-
TION.S.
4. IMhr Diteuinentx, 135!).
.". Aieni-il — See ARBITRATION AM>
AwAlil).
(J. WilU-Sie Will.
fXIV. Pahol E.\rLAN.vnoN of Doh-mext.s.
1. Til Vwij or Ej plain Deeds.
(a) Deeit.i idimiliite in form, Init in-
tiiiili-il to he III Id (IS Seoirihj or
ill Triixt, 135'J.
(b) 7'y E.c/iliiin Discrijition of I.mid
-See Deeu.
(c) Pniifof Trust— See Tku.sts and
Trcstees.
(.1) Otkr Cases, 1303.
2. To Viini or Explain other Writings,
13(i7.
3. Amhhjaitij Oenerallij, 1368.
4. Explanation of Words, 1369.
5. Parlies to Contracts, 1370.
6. Subject Matter of Contracts, 1371.
7. Terms and Incidents of Contracts,
1372.
8. <it/i<r Ciisix, 1377.
9. Custom and Csai/e — .Vff C'r.vroM and
rsAOM.
10. To riiiiii'i-f Wriliiiil^fiiriiiiii'iCiiiitriicI
Itndei- Stiitilff of Ermids --Sie
— Salk oe.- LaM).
11. To Viiriiur Expliiiii HV//., Vm Will.
XV. ritooF OK Hanuwritinc;, 1377.
XVI. pRooK nv SriisciuniN*; Witness, 1379.
XVII. Prook iiv Secondary Evidence.
1. Will II I)oeiliiii'il's liili-l he jiruilni-i il.
1379.
2. Proof that Doe II mi III Exist, d, |;iSl.
.3. I'roof of LoKs and Seareli, 13S'2.
4. Proof of Derds hij Ml iiioriiils, 1385.
5. Oj' Erii/ence previoushi ijir, II, 1387.
()'. Ot/ier Cases, 1.387.
XVllI. Proof akter Notice to I'lioDicE.
1. W/ien Xoticr \iee.-.-<,ir!/, l^WO.
2. Srrrire of Xotin; 1.3!)|.
.3. Form, of Xotiee, Ki'.H.
4. (jther Cases, 1392.
XIX. Proof iiv Kntuies and l»i;ii.Ai:ArioNs,
1,393.
XX. Hearsay J'^.vidence.
1. /n fjitestions of Pii/i'jrn, 1395.
2. His ijestir, 1398.
3. Proof of Marriaiji hii Riftnlijlina- —
See Dower - HisiiAND and Wiik.
4. Difuiij Deelaratioiis — See Criminal
Law.
XXT. KviDEN<'E ok Charactkr, 1399.
1. In A efioiisj'or Defa matiun — See Deka-
:\IATION.
XXII. Prodcction AND Admission of Evi-
dence.
1. Onus Prohandi, 1399.
(a) In Actions on Cori'nanis for Title
— See Covenants for Title.
(1») AtlacliiiiintforNon-prodiii-lioii of
Doeiiiiii-nt.i — See ATTACHMENT
ok the Person.
2. nelerancji, 1402.
3. Dutji of Jiidiji's as to Iteceirinij or
Itejeelinil Erideiice, 1404.
4. Inlfeplii, 1405.
5. Othir Cases, 1405.
0. Secondarji Eridence — Si-e p: 1,379.
7. Ai/dre«ses of Counsel— See BARRISTER
AT Law.
XXIII. Contradictory Evidence, 1406.
XXIV. Mhcellaxeous Cases, 1409.
XXV. Right to be(*inand Reply— S'i'f Trial.
XXVI. In Criminal Matters — See Criminal
Law.
XXVII. Evidence in Particular A("rioNn,
Suits, or Procekdinos.
1. Account Stated — See Money
Counts.
;ii ■ I
ill I :Jl
1287
EVIDENCE.
'J. Adiiiiiiiitrafor/t — ,S'(< KxEci'ToiiS
AM) Al>MtNISTKATOHH.
;{. All'iihivilx — .SVc AFKiriAVIT.
4. I'lii'idiifi' liitiri-iii /■Jrii/i'iicc mill At-
li'iiiiliiitis ill I'/iiii/iiiij.i — Sec
Amkndmknt at I,a\v.
5. A-ssiiiil/ — ,sV< TiiKsi'Ass.
(i. Airaril.i — .Vie AiiiiniiAririN and
AWAKU.
7. lidiikriijilrii ~-Si'c Han Kif 1' I'c V
AM) Insoia'kniv.
8. A'/Z/.v iif Kfr/iiiinif mill fi'iiiiiisMinj
Sii/i s -' Sir Mll.T.sol' I'lxi IIAN(iE
ANU PmoiissiPia N(iii:s.
'.). Iliiiiils- Sii Hon I).
10. Vitith'iii'i I'h il h'li t'f'n/iM.
(a) /ii M iiiiif'iiiiil Elii'tiiiiiH — Sn:
MrNKII'AI. ( '(illl'oHATIONS.
(1)) /// /'iiiiiii/iirii/iiv!/ Klii-tiiiiin —
.SV' i'M!I,IA.Mi;N r.
11. C'lin iimit.< — /S'(( I'livKNAsr — f'ov-
ENAN'i'.s FoK Tiri-i:.
I "J. Criiii luii/C(iKi.S'Sii Chimin a i. 1 ^\ w.
l.'l. ('riiiii)iiil Ci III rrf.^iil hill — ,SV(' Hl'S-
IIAM) ANI> Will:.
14. Cllnllilll -Sli: ClSTd.M AND I'sAliK.
ir>. Umiiii'ii .I, Ai/iii'iiriilinii mill Miti-
HUliiill (i/Sir |)A.MAc;i;s.
Ki. Di/miKiliunSi'i' liKKAMArioN.
17. I)iliiiiii'--Sii' I)KnNrK.
I 8. /)i.:roriri/, liillsilf — iSV< I )|S( <IVKliY.
I!). Ihiiri I-— Sit DoWKH.
20. Eji'i'llllillt—Sir IIjKI TMI'.NT.
'J I. J:'.ri riif<ii:< miil A iiiiiiiifni/orx — iSi'e
KXF.Ct'ToUS ANU A DM IN I.ST RA-
TDK.S.
22. Kiirai/itiiDi—Si'i' Exthadition.
23. Foniijii f.mv—Si-i' Fduiuon Law.
24. (Iiiarmitit — Si'i' CiiAiiANTKF. and
JMlEMMjy.
2"). JIiihIkiiiiI mill Wlj'i'—Sii' Hu.sjsand
AM) AViKK.
2(). /ill ii/i/i/ iif I'l isiiii.'imiil I'viijiiiiij —
Sri- IdKNTITV.
27. lull r/iliililir— Sir iNTI-lfl'l.KADKJi.
28. Iiiinisiiiii—Srr Jnthisiox.
2!(. Lfimr.l — Srr JjANDl.oKD AND
Tknant.
30. Lihil—Sre Ukka.mation.
31. J.rilitiliiiiril—Sfi' Bastakd.
l\2. JAiHilntiuvn — Sre Limitation ok
Actions and Slits.
33. Miiliciiiii'i A m-Kf mid Prnsrcutinu —
,SV(' Malil'Iois Ahhksi', 1'ko-
SECTTION, AND OTHER Tro-
CKEDISOS.
34. MiirrimirSee Do WER— Husband
AND Wife.
35. Mi'me Prujits—Sve Ejectmf;nt.
3(). Miiiii'i/CoiDiti^-Sei' Money Counts.
37. Neil' Trial, Ajiplicationn for — .SVe
New Trial.
38. Notice of Action, Proof of — See
Action ani Suit.
3!>.
40.
41.
42.
4:{.
44.
45.
4(>.
47.
48.
4!».
no.
.")2.
r)3.
r.4.
05.
5().
57.
58.
5!).
-Mi-Nii ir,i j
Xlilirr if m.slinii,,,,,; i',-uu,\,,\,
I5ii.i.soiKx(|ian,,|.;am',i.,,''
.MISSOUV ^<^T|■;s.
Polirirn if /iiKiiniiir, . ,y,,,, i
RANlk. ■'■
Pll!/lHr|lt—Sl■rV^\^u•.^J \iy,^.^^,^_
J'rvlr.il-Srr V.iu.s „|.' K\vn\y,'r
.\ND I'RO.MI.SSDWV .Niilf;.,
l'r<fn-t--See I'leadinii at f.uv
ijliirtiliil Tilli:^^- Sr, Or,,..',,'
TiTi.Ks Act. ' "'■
(Jill) Wiirrmilii -■- Sir
( 'oHFoKAThiNs.
Ueijinlrntioil of hiit/.^-
Tin- Laws.
/,'' /ill rii. -Si, l;i:iM.|;viN.
Snliirlinii —Sir .SKIircTION.
Srt;if-~Srr S|;T-(iFF.
s7(. )■///• mill /,;.v siifii;..,, ,,i,,;„„^,
ii!liiiliiit--Sir ,Sui:i;ilK.
Sliiiiikr—Sre Deka matkin.
Sliiji.1, Oiriiri^-lii/i if--Sii' Siii|..
Of '."ii.rrs in Amur Sn Aw:,.
A'KNT AND TaXFS.
Titlr~Srr K.IEcimk>|'_'
TrntjiiiM—Srr 'l'l!Ksl'As>
Trorrr — Srr Trove::.
I'xr mill ()eriiiiiitiiiii..Si
OCCFI'ATION.
ir/7/.s — SV,' Wii.i,.
Wurh- mill Liitioiii- — Sir WniiK.ivJ
JjAllOlR.
liu:.
L'si: w
.lN!t|
I. .Matti:I!s .(i diciama N(iti(i:i..
j WliL'i'u il ilurciulaut iilcMcls (ivtr ami t.ikts i
I exccjitioii to tliu iluohiiMlioii, tlii' (.■mii't amJ
take jiidie'ial iiotictMif tliu w ant of Ic'al aiitli.in!i]
I ill tlie plaiiititl's to sue in tlieirrni-pdratuaiMtvi
j lirnd- if Ji y. A. V. Slirririiiiil, (> (^. K. l'I3. '
I In truspas.s for false iinpri.siinnifiit, where tin
(IffciKlaiit jnstilicd uinlcr a writ uf ca. .sii,,;iiii
I the jil.'iintitl' replieil that it had liueii set m.J
heforu iietioii hronght :- Seliilile, tliat tlit jii.lj
at the trial - hefore whom tlie ca. •ia. in tliista
liatl heen set aside, alter armiiiiciit in iliiiiiilirni
with eoiiseiit of the parties, as if liy the I'lJ
1 eoiirt ill term, and to whom tiiu fact."
whieh the writ had lieeii set iisido liail Kwomi
judicially known -liad a riglit to uuiiiiiHiitl
the jury upon some of those fact.*, Hiiitli
I been left uiieontradieted as well ii|i(iii tlietril
j as upon the ;ipplieatioii in eliaiiil]c.r.<, Mmi
\ such facts had not lieeii af,'aiii ex|iivt:sly iir.iiigij
[ out hy the plaintitt' in his eviiiuiKu lnhii (i
jury in this case. The facts thus statcil livtlj
: juilge were, however, afterwards witlnLawuli
liini from the consideration of tlie jury. /.''
son V. Mryrr.t, ~ Q. B. 423.
Upon a covenant to pay mturost at tm [
cent., made while It) Vict. e. 80, was in k
and before the 22 Vict. c. 85 ;~llcl(i, tliattl
court was bound to notice tiiat liy tiie statiif
no more than six per cent. couM be rec"vera
though non est factum only had liecii jileaJlj
ainUextouc v. O'lMlli), 21 (,l. H. 409.
In an action on a replevin lioml given t" Bo
of the coroners of the county, the dufeiiJai
iiiiiir, /'/v/ii/'c,/'™,!;,,
>C( IIAMIK ANIi 1'kii.
iiTI-s.
•iriiiiri - Sir Isn]-.
VaYMKNT lUtrRiiT.
5ll.l,S 1)F l'ACIlANi,£
ISSdltV NlllKs.
Vl.KAlMSd AT Law
■It— S'l' tJni-.TlN,;
I'T.
() -— .SVc Ml'Mi ip^ i
I'lONS.
if hulls — ,SVc lU'j.h. I
( liKlM.r.VIN.
IC Sl'.HrcTKlN.
Si, -I' nrr.
Ii'i.i Siii-i ii'<, Admt
N.I Siir.r.iiK.
(' Df.kamatuin.
■i:<lii/> 11/ -Si'i- Sliiv.
A ,;■,■:,■ Srr As*KSv|
Ml 'I'aM.S.
l'".i i-.('i\i I'.M- Tni.K.
Sri- 'l'i!i;srAs>.
( 'rudvr.u.
■in)iiitiiiii-'Sii' U>F. AMI
/niiN.
Wii.i..
I.itlii.ill- Si' WiillKASjl
r
iAM.V XuTICKli.
^•ails iiVLi- anil takes l
atiiiu, thf (.•niirt camiol
^uautdt li'gal aiitlmrit^
tli'.'irr(.riiurat>.Haiiwty|
iiroiiil. (i Q. B. -13. ■
.i]iris(iiimoiit, wlimthj
;r a writ of ca. siv.ani
.t it liail lit-'Wi si't asvi^
Seiiililf, thattiic jiilgl
11 tla^ ca. sa. intliiscil
ar,i;uim'iit in cliaiulxil
,rtiis, as if l>y the iaj
whutii tlie facts up
11 sut iisiilc liail litem
a right to ciniiiiKiitl
thiisu fact.s whitli Isj
I as wull 11 111 111 tlictrii
ill cliaiiilii.rs, allhod
.igain uxiirossly linnisl
his uvidoiioo lit'furc tlj
facts thus statcilliyti
ftorwanls witlnl.-awni
,i.m cif the jury. I'M
■A.
I pay interest at ten (
lid. e. 80, was 111 tiir
I c. 8r>;-neW,tliattl
l,tioe tiiat hy the sUf
tent, coulil lie rec'ivert^
. only Iw'l ''^■'•'" 1'''*''
I '21 0. B. ■«)'''•
levin himd given toB.o
euunty, the Mmia
1289
EVIDENCE.
1290
iwnnsi
gTliUlll
liV >ill'' '■'
innvi
il in arrest iif jii(l;<nu'iit mi the ' In an actidii mi a iiiorchant's acemint, tli<
1^ that the limiil was iiiai
ner, imt the curmn'i's, u
J-llilil. that tl
\v til ami assi;,'iu'il writ was spi'dally eiiihirsi'il clainiing interest,
rs, iif tiie emiiity : ' .iiiil (lefi'iidant did nut, ajilie.ir: Hehl, tli.it his
le liunil lieiiij,' jirii|ierly set mit in iimi-a[nie;iraiiee was an adiiiissimi nf the el
iratimi. and no issue or
)iiiiiit
,k(. jiiilii'ial notiee tliat tlieri:
raise
I to ti
I coriiiii
atimi was
Pii
,1 nil the iveor
1, till! eiuiit were not lioiind ! --( '. L. Cliiiinli. - liiini:
i,ar«i!
for interest. S/iiinHiiif v. '/'iin'min, l I.. .1. '2'Vk
Were more
,{i thin iiiif
then'fcri
tiieeounty ; and the deel.ir- '
.sustained. .Iiiliii.inn ,1 ul. v.
IMaiutitV dcehired mi ;v 1
hind of suliiuissidii
l,,al.,VlV. W 17!).
alleginj^ that the arliitr.itors heard the matters in
dilfeieliee, ailloliLrst others, the eosts of an Jirtioli
in the ( 'oiiiiiiou I'li'.is hetweeii the |iarties, ami
The C(i
of ever.-
thmyh
Ihiflimj '
urts are hound to take jiidieial notice j awarded that di.'feiidant slimihl emivey eert.iiii
mhtie ae't of tliu jiro
ial legislature, ' s)ieeilieil land to the [ilailitill' in fee, and shollhl
fratioii may lie locally limited, pay him all the eosts of the refereiu'e and of tlio
ii;ti-iii-iid; •-'.'.(,>. 15. 4(;:i.
d aetimi, and that tliev should exeeute niutiial
The iitfel
spil'
alle
■d
in a eonviotioii Uiv se
lll|110
tain M"'"'
itllllllS
without lieeii
was sellin
!"Ji l)e
1:
reaeli, lloll-liavillent of till
stS.
eiiil.'int 1
t liU'aded, I. N(
st faetiim ; "J, That
"aeer
jiillii'ieiit, «■
tity, to wit, one pint'
itliiiiit negi
itiviiig tli.it it was ,
1 the iTiinii:'' I''"-'
kages
with
th
Held
de
L'llll>tioll
," the arliilrators did not make any siieli awan
>1, s. i7vl. for it would
Meld, tli.it on tliisse pleadings the suit and tlii!
faet of its refv'runeu might lie taken to lie admit-
' tod. //;/;/«/•/ V. Sn,ll-1\ (>. li. oSI.
lOill
IP"'
llvliiitiei'il that a pint was less than livo i Dower. Plea, that tlii^ demand iiit iievi'r was
ills or
twelve hottles, wliieli sileli p
Hi id V. .1/-/
,/ -£/.,: tl
liled to the said.l. I-. (the h
d), ill
iiiii4 at least eoiitaiu
\iiiili!e is liiiiiiid to t;ike notiee of tin; terri-
(„^.il,liVi.sioiis of tho iirovinee. Mr/hmu/il v.
^iMlfi. 1 (-'Ijv. Chaiiili. 'M. Hl.ake.
II. All.MIS.<I0NS.
I. //'/ l'l'iiiliiiij.-< mill I'rnciii'i'.
Intresims fm' taking goods : — Held, that a
nuti'v to iiroihiee a writ of exeeiition was H':t
1 with liy the writ lieiiig ph'aded in jus-
ititotimi, the general issue lieiiig alsu dii the
Itcciinl. -Vet. Vie- v. Oshonn d ul., (! O. S. ."tOO.
In iuileliitatiis as.sumpsit the defi'iid.ant, ex-
wnt as to t;;W l-t«., pl'Mded the geiural iss'ie,
8d. into
le time the s.iid .1. L. was soized of the said
laud: Meld, that the plea adiuittod the soi/ili
and dollied the coverture only. Aiwce v. Jfitr-
riii/, -M i). 15. "iSti.
I'laintilV sued upon a policy <if insurance oil
wheat ill a certain warehouse, alleging tli.it at
the time of ell'ectiiig the imliey, ami thence until
and at the time of the loss, he was interested in
the jiroperty to the amount insured. |)efeiidaiit
pleaded that he was not, at the, tiiiu? of the los.s,
interested as alli'gei I : Meld, that on these' plead-
ings it w.is not admitted that the ])l.iiiitiH', at
the date' (if the policy, had in the w.irchouse the
i|iiaiitity meiitimied in the receipt, and that in
the .alisenee of any ])roof of the extent of his
interest, he would lie eiititleil only to nmninal
damages. I'lurhx. Tin- W'l.tUni .\-:iiiriniri('ii.,
'2't o. n. -ioi).
il as to that Slim payiiieiit of t! I. .. ou. ■..u. , j^^ ^^^ .^^^j^^^^ f^^^. ^.^^,,^^.^^ ,^^ ,^ lumberman,
inrt, ami im il:«mages ultra : and the plaiiititt ^,^^. ^y^ ^^^. ,^.,,«ther the person hiring tho
iiliwl tliiit lie had sustained givater damages .: ' , . . . ',. , '7. , ,. ' ,, , ,• 1 1.
liiifii, ni.u 111 ii'> • • " ' .i- r- iihiintitl w.is deteiidaiit s agent, the detciidaiit
H,.|[l tliat t he nlainti t Avas not entitled to a 1 ' , , , i, ir 1 t 1,1 x • 1 ii j. 1 i.
■neiii, lu.ii 111 |M. Ill'" , 1 pleaded a .Set-oil, and at the, tri.il attempted to
vnlii't till' the ill leri;iice letAVeen t.i.i 14s. ami: ' 1 -i, li ;. n 1 • t.-,v 1 1 ■ i
miieriiii uii loiii^K 1" " I vi. 1 lirovo under it that the plaintill had received
1 Is Si iiaiil iiitii court, asasuni a, initti'd on 1 ' , ,. ,, , 1. ii 1 i. tr 1 1 ii j.
livMi,, [iiiiii 11"^ ' .. . , goods troin the store at the shanty : "Held, that
no inference eoiild lie drawn from this as an
admission liy defeiidai:b of his liahility for plaili-
till's wages. Sliinirl v. Srnlf, I'T <,». "U. '27.
asasuni a.,liiiitti'il on 1 - , ,. ,, , 1. ii - 1 i.
, ,, ,, , , 1 goods troin the store at the shaiitv
itk leinnl, Avitliiiut giving a,iiy v'videnee, but!?:., :.c 11 1 1 t.',
liat he must prove damages, no speeitio sum j
Mil.' ailmitteil nil tho record in this form of ;
ictii.iii. /i'ii,« V. (liirrixDii, (i < >. S. (J'JlJ,
III trospiss i|. 0. f. dofeudaiit jdoaded in one
defendant made a note payalilcto T. or liearer,
and '!'. died before it matured. Mis widow irar-
1 title m A., and license trom A. to outer, I . , t ,• 1
.1 tl ,. ,1..^ ,.1 ,.,.i...i nn,, i;,>.„.;.iiK- 1 rieil one 1'., and tliev sold the note to (t., who
ill the other pleas pleaded title speciall.y 1 i i. n 1 • i.-,v ,1 1, 1 ■ ■
\.,i.ivini' eohir to the plaintill'; and the ! t''^"f ^'•"iy;! it to the p aintiH. One 1>. adininis-
llamtilfileineil the license and took issue 0.1 ^ toixMl t,. I . .s estate, and t.iok pn.ceedingsagain.st
1. and his Avite, to recover the assets. A lull was
tiled by dofeiidaiits to restr.iin this .action, ami
ill his answer the jilaintilV swore th.it in eoiise-
(lueiice of the ditfieulties Avitli theadmiiiistratoi',
he had returned the note to (i. before this action ;
that he had no interest in it since, and never
."lutliori/.iMl or heard of thi.s action. The jilain-
till's attorney swore, on the other side, that both
the iilaintitl' and (i. instructed the suit ; and the
plaintiff li.ad recognized it, saying lioA^as indeniiii-
tied by f i. The jury having found for the plaintiff
on a plea denying that he was thelaAvful liohhir :
-Held, on motion for a new trial, that the plain-
tiff's answer in oh.ancery, though very strong
evidence, was not coueliisive ; and that admis-
sions by tt. were improperly rejected, ho being,
according to the plaintiff's statement, the per-
intiither iileiis : - -Held, that the admission liy
Laiiititf of the title in A. by tho replication to
qilea of lieeiisu, did not extend beyond that
[lie iif iileailiiig, and could not bo used by
luliut ill siipiiort of his other pleas of title in
WWmmii V. WiilL-ir, -2(1 li. 1(12.
i A jury caiiiint ho called upon to infer from
pytliiiig on the record that an issue eoiitaiued
irecoril, ami Avhich is to be trieil, is to be
kund either for plaintiff" or defendant. Such
Hue must be supported by testimony other than
"lat til be gathered from the record. Hehl,
fiat in this case it could not be taken as admit-
liy the ple.adings that the defendant had
Iveu her consent before a judge to be barred
1 hiir dower. Huffman v. Ai<kin, 2 C. P. 423.
1201
Ndii on w lioM' iiiiiiH'iliatc liclialt tlir artinn wa.s
brciught. Cimli.-i V. Kill II it III., •_>; (,>. U. •J84.
A lU'ftMiihuit, l>y his iiuswcr, iidmittt'il tli.it lio
was iloviifi' H-i ullr^jrd in tiie iiill ; Imt iriliicd
tiiat liis ri,'lit tiuical uitli tlic |ii'i)|n rty li;i<l Ih''.!i
taki'ii av.ay liy :i suit I'nr :v iMLnistr.itinn in iliig-
land : — Ifclil, that tlio litu'i' stali'ini'Mt Wis nut
an ex|ilTnati(in of tlic rnrnii'V ; and tiiiil tiii' ail-
liiissiiMi as ti) the will Mii;,dit lie 'vad 1, , tlu' ]ilain-
titV as fviilcniT \\ itliiint ni,ikiii),'('\idi'nc(Mif what
f.dldWcd. S'r-ti,.;/ y. Tl/lir, IS Chy. I'.Ki.
( Ui :i MKitiiin lor ih-'on'O the plaintill' was as-
EVIDENCE.
this, letter
1202
wore imt in wliieli I,,,,! [asso,! 1
tween the attorneys on either siilo witl,,., ,."',
to settlement, the iirst wi'itten e\|)i'|.s,<| ' ''"
ont prejndiee." The iihiintilt's att.
prodneeil tln^ U'tters also swore that
adniitteil it was lie who strnek the
Tile jury found for the pliiiititr: Si
y "«-ni,.
"■ii'T, wliu
L'I'cnilaiit
I'laiiitilf,
the letter;! should not have heeii riwivt.,]' ,.'
for the imi'iiose of iiroviiiu; the identitv ; I'm"^"
the other testimony was .sullieieiit to «"ai'|-;iiittl"
verdiet, the eoiirt refused to iiiteHVi-,. ' n "■' '
V. A-wr, I. •{(,>. 11. 4(kS. *"■""
. , ■ . , . , Where defoudaiit had rendered an anounu
sunied, tor the luu'iioses ot the motion, to admit plaintiir. with a letter stating that th,. i t I
all th<> ;Htateiiients of tlie .iiiswer of whii'h ju'oof ;,,,„i ;ic-eonnt were sent "without im iii,li,., •■ 1
Would lie reeeiv ilile at a hearing ill term. 11//-' ■ ' i ,. . i J i. ml
K'Hi v. fvw.Sc//, \4 ('li3', so.
A liill f(ir redenqition allej^'ed lliat an
I'onveyauee liy the ]ilaintill was intern
then
ilisolllte
e.l as .a
seenrity tVu' a delit then due. The <lefendaiits
admitted that the eonveyaiiee was intended as a
seenrity, Init alle;,'ed that it was to seeiire futuri!
advaiu'es, as well as the existiiiLt deht, and
interest at twelve per eeiit. The jilaintitl' moved
for a deeree on the answer; Ilidd, that the
defendant wa-i entitled to a deelaratioii that the
.security was to eover fiitmat ailvanees, and
twelve ])ereent, interest, an well as the existing
(hdit; hut the eoiirt gavl; leave to the plaintill'
to aliauilon his motion, ami to tile a I'eplieation
and proceed to a hearing in term, if he ehosu. //'.
defendants liy their answer sjiecitied a certain
sum as due w hen the eonvej'anee was executed,
and certain <itlier amonnts as admitted liy the
plaintill' to he due at sulise(|nei.L jicriods : - J leld,
that on amotion for decree these allegations were
iKit liindiug on the plaintill', and min-t be estab-
lished before the master. /'<.
Action on a note made by M. and endorsed by
('. I'leas, by .M.. general issue and set nil', and
by ("., geiieivil issue, sct-otl', and release. The
jilaiiitill's toid\ issue on M.'s pleas, and eiiteved a
nolle proseipii as to t". : — Hi'ld, ]ier liobinson,
('. .1., and .Maeaulay, .1., that in'asmueh as the
plaintill's conft'ssed, by their nolle )iroscipii, that
('. lia<l ;i set-oil' sullieieiit to meet the note, they
could not recover the amount against the other
<lefendant ; ami by Jones and Hagerman, J.I.,
that they were not iirecluded from doing so.
Boburtmii rt al. v. Muure 1 1 <il., (i O. S. (141).
One of two endorsers, who at the time of en-
dorsing were ])artiiers, pleaded that neither he
nor his jiartner had due notice of non-payment ;—
Held, that the other partner having suH'ered
judgment by default, did not operate as an admis-
sion of notice as against the defendant pleading.
PeniiUit V. Mch'nrJi- H al., (i C. P. 808.
A defendant having endorsed an admission of
service on the bill of costs produced : — Held, to
have a<lmitted that the copy received was signed
by the attorney. Bcrri/v. A ml runs, ^ 0. 8. (M').
The admission pro eonfesso by non-attendance
of a party to the suit as witness when notified
under 14 & 1") Vict. c. lit!, was to be taken only
as to the cause of action, and not the amount of
damages. JMn'rtaun v. J\'oiii<, 2 C. V. 193.
case certain projiosds
not accepted ; Held,
plaintill'. It'ilc/ii ;/ y. Iltiit'or
Where a letter makiiii
•'•'i; '■entaiiiLa ivorcl
not adnnssihle f,,). t|,J
/. <!>'. I'. 4:17.
an oiler was i'X|irc>i.i,.,l 1
in the beginning to be without luviiiaiiu, Inittlic
defendants afterwards deelare<l in it th 'ir iiitiu.
tion to use it, if required, as evideiiretisln.w the I
jilaintilV's want of good faith, the |ilaiiititV\vas-.|
Held, elitillcd to shew it and the sulistnuciitj
agreement to re[)el any siieh iniputatiim. r/,,rf|
V. Graiiil TniiiL It. IT. Vu., •2\) O. 11. |;ii;
,'{. /.'// mill lli/ilills/ I'rhir'illills illiil Siii;lu.,,
An admission by a debtor on the limits tliatl
he had gone beyond tin in, is nut ailmissililo to
charge his sureties. Frifi liiml v. ./«;«..<, i; ti, s 44
Held, Uobinscni, O. J., diss,, that the l«mk,<„fi
the agent or clerk o! a public cuiiipauy liurin.J
his lifeMiiie are not good evideiasj against liisf
surety, vlieii sued on his bond for a (luticinRv!
in the ag.'Mit's acjounts. Fvi-iir w ,Ju„i^,t ,\\
8 (,». 1!. l!tL\
In an action against principal a.iid sinvtics as
co-obligors on a colleetor's hoiid : -IfcM. tliati
the admissions of the ]irinripal weiv cliMrlv tvi.!
deuce against liim;;elf ; and per hra|n'r, ('..I., Jtl
might lie strongly argued that uiiatevcr is evi-l
deuce against the priiici|)al will also liu rcofiv-f
able ag.ainst his co-defeiidant in an iiL'tidii oaj
their joint obligation. Tin' Mniiii-iinil VimifM
11/' iSoill/i J'Jdnt/io/ii' V. Jli Inn r if III., 7 C 1'. .50iJ,|
See Mutual Fiir /;;<. Co.
('/-(/.,20Q. H. 441, p. 1314
IOC. P. !), p. 13!W.
ri/' I'lYiriitl V. /•,//,„.,
.Uiilillijklily.dnMl
2. A(liiii.'<.iii>ii.f icitJioiit PirjiuUec.
In trespass for an assault, the act was proved,
but not that defendant committed it. To supply
4. Adllli''.'iiiiil.'i III/ Piiiih:-!.
The vecogi'ition of a bond in a letter friiiiuli'.j
fendant to plaintilf, with [>roof that a ilin'iiuMtl
purporting to be a copy or draft of siuli iustrii-f
nient was shewn bj' dcfeiulant with tlii' titlej
deeds of an estate to which it iviat^il, is tvi.f
dence to go to a jury in proof therenf, afttr ■mticej
by defendant to produce. Itnohlnui v, B'Ml,^
Dra. 345.
The admissions of the plaintill' in ojivtiutiit,!
being a real person (the lessor liuiiii,' an iiiuiiti,l
are not evidence to prevent the rucovuiy "i tliw^
premises. NkhuUuH d. Spiiffiinl w Jim, li 0. S. SiJ
In an action against a meniher of a joiiitstix
company, his admissions that he was a partiiel
are sufficient to prove his liability witlumt pro-l
ducing the partnership deed. Ztt v. J/(((v/"«iiW,l
G U. S. 130.
ii''li liail jiasscil In-.
KT siilo witli.iviiw
en •;Nlilvssly''wit||.
itiir's utt..ni,.y, v|,i|
iVi>l-v' tli:it ik'fiMnliiiit
tni.k tliv iilnintiif
iititV: S,.Mil,l,., tint
lii-i'ii ri'.'t'ived, tvcii '
:1h; idi'iitity ; Init ;y
liririit t..\v;iiT;»iittlic
,1) illl.TlVl'l;. 7j,„.„
IcK'Vnl ;ui ;ir,„ii|it t„
iliiiL.' thiit till' lit!,r.|
itlioiit pn iinlii'o," II, T
n'l'iii ciiiitaiiiuil witt 1
t ailmissilili' fur the j
/•'/, (if. I', t:;:.
II (itVfi- was i'X|ins*,l I
lint iiiviii.li(.T, Imttlicl
aivil ill it tl' :ir intiii.
,st;viilciu'i't islifwtlie I
til, tiie |il:uiitill'\v;is-|
t illlll till,' Slll)Stl|lli'lltj
■li iiiiimtiitinii. r/,i,'j]
., -J'.! t,>. v.. VM.
I ijiiil.-i mill Surii'i, I,
111' nil the' limits thati
11, is nut ailiiiissilk'tol
iiily. ■Iiiiiix, (ID. S. 44,[
liss., that the liimksi.ij
ml)lii' onnijiiuiy iluriiij;]
1 eviik'iii.''! aL'iiiiist hiil
i lioiiil fur a ili'lifii'iicyl
i'l /■/■ I V. Jmiix i(ii/,,
iu'i\ial iiinl suri'ti'.'S as I
r's liiiiiil :-lk'lil, tliatl
hijial wi'i'o I'k'iirly tvi-j
llil pi'T hiMiuT, ('..I., itj
that M liati'vcr is tvi-f
il will also 111' i'c«'iv-j
liiiaiit ill ail iK'tiiiii I'hI
7'Ai' MHiih-'ijiiil Viiiiiif\\\
„,■ 1 1 III., 7 ('. \'.W).\
[,. iif I'l-Ki-iillwl'illm-t
; '.][;i/illijhl,l\:(!,iM
\i,ii ruiih'i.
luil ill a k'ttiT fmm ili'-l
pi'oiif that iulni'imiditl
|r ilraft of siicli iiistra-j
Ifciulaiit with till' till
liii'li it ri'lati'ii, is I'vi'j
[iiif tin-'iviil', al'tfrMiiticei
h'l.rhliiiii V. B'Ml,l
llilaiiitill' ill ojivtiiidlt,
Ijssiir lilting iH' inlantiij
flit the rccoYi'i'y of th^
],//o,v/v.7.V(i, HO.S.^
luoiiiln-Tof ajiiintstflcM
that hi; was :i partner
liabilitv witlmiit 1
led. Ltty.Mmhinm
1293
EVIDENCE.
1294
^yjn^r^, in cjci'tiiK'iit the ]ih'iiiitilT'n (.■niiiiHil in
II,,, iii.s latii' Hlati'ij it as a i(iH'stiiiii iif li'j,'iti-
•I'V ami till' ilcffiuliviit claiiiu'il iimlfi' a « ill,
.lil'tlif ik'fi'ni'o was I'linilin-ti'il witlmnt tin:
' 1 iiliicti"" "' ''"' ^*''"' '''** '' ^'"' ■''t''it>''noiit of tiio
'■'iiu'iisi'l liii'l i-iiiiKti'iI that iiiiiicci'ssary : Ik'hl, I
tl it it iiuuht to have lifi'ii |iioiliii'i'il. Doi il. '
£',(•, -/v. />"/■'„/■,//, -Ji). li. .Tl!!.
I'laiutill is imt lnninil l>y tin' inailvi'i'tt'iit stati'-
iij,,]. aihiiis-iiuii iif his I'onn.sul in oiK'niii!,' his
..«■ siah stati'iiK'Mt lii'inj,' i)i-iiiii|itly ivtrai'tnl.
tii'n'IK' '■■''''"" "'"'"'" '''• "■•'■"•■■K'- "'••l'^«'
Till' I'laiiiti'l (leolart'.s mi twn cniiiits, I. On
1 nut'" ami, -■ On an at-'i:iiiiiit statcil. '\\< tlii'
'jj,,;.i„l;Iiit's jik'a to till' iirst ooiint, tliu iilaintill'
iilii's, tii wliii'li i'i'|ilii'atioii
rqii
tliu ik'l'fliilaiit ill
to aviiiil tliL' risk of
nuin*. !">■ I'laintill tlu'ii
tlir iliiiuim'i', onti'i's a sini|ih' nolh' |irosci|iii to
(|„. lirst iiiiiiit ;- lU'l'l, that tlii' |il,iinliir iiiiulit
P'
V tllt'lliitL' ill t'viill'llil' UlliIlT till' SI'rollil I'oinit,
oil tilt' iii'i'iiiint stateil ; Sfinlih', sili'li i.'viik'iii'C
MDulil liavi' hii'n iiiailinissililu if tlii' iiolk' |irosi.'- 1
,.,; 1,1,1 iiivulvi'il an t'\|ii't'ss ailiuission, as it,
' '■■ ' *i-* tl- ..i-.iMtm- i„i,i ,„, i-iglit
Diiritl.-iiiii, .'t
laiiitit
A,.s/,V V.
rP'
I II-:
I jomitiiiii's iloi'S, that tli
i of ai'tiiiii nil the iioti'.
■ (I. H. t.V.t.
kltt'i's wi'itti'ii hy tho parties to a suit, liko
fni'iiits ami iitlicr ailniissioiis, arc always oin'ii i
t.irtiiliuwtiiiii, uiik'ss tlii'y may have led to aets ■
( iivtliinl iiartii's involving loss to tliuiii, ( 'iiriHii r :
[\'.lif'iinii, 4<,>. r.. 10."). j
Tlu'lilililltitl, as adiiiiiiistr.-itor, sues ilefeinlaiil
miiifiiiil' iiiit>'s niaile in IT'.'li, aM'i'rinu; adiiiiiiis-
Itnitii'iiik' li'iiii** '""• '" If^-^-'", iinil laying promises !
I til liiliisi:lt as ailiiiiiiistrator. defendant denied j
Itk lU'iiiiisi.' : Held, upon the I'aets set out, I
jjunt's, ■!., diss., that if the .'Klniissions iiroved i
Icoulil K' L'lHistnu'il into an .-ilisidiite in'omise to'
. still, hi'iii;,' made hefore the plaiiititl' liaii |
mil hi.s letters of adiiiiuistration, they eoukl :
-ii|iiinrt the issue raised. Iliiinl \. Kildiimi,
W. 114.
riv, whether the adiiiissions in cvitleiiee
'A -uiiiiiirt an ahsoliite promise to ]iay, if
1 1 tlie administrator himself ; anil if so,
■,,r the fact of their lieini; made to a third
', iiisti'ail nf to the administrator, made any
Illll'O. III.
Ill tii'sfiasi! fur seizing plaintifV's goods under
cxiiutioii against A., it was held that a letter
lunttiii liy A. to the phiiutitV before any third
iparty hail an interest in ipiestioniiig the right to
Itlit giuiils, was evideiiee to shew the footing on
Jtliii'li till' iilaiutitr and A. then stood with rusjieet
otlii'giiiJils. Iiiili'iu.fiii) v. Jx'iijii-IJi; 4 tj. H. '2H\)_
A iiiiTC verhal bargain for the sale of land
Hill! imt sulijeet a person to the penalty iiiuler
Hill. Vlll. e. !), for buying a pretended title.
1 ptrsim I'oiilil nut be convicted merely on his
|wi iiiliiiissiiiii that he had taken a deed fi'om a
(arty nut of imssessioii ; some evidence aliunde
Biist lit' iiilihioeil of the oxistuneo of such a
leiHl. Aiilinini. t. '^'. I'^iiii'fi, 7 Q. B. 213.
In an ai'tiiiii for the price of certain fruit trees,
j-Helil, that tlofeiidant having put in a letter
(om the ijlaiiititl' to establish that he had received
lie trees fur .sale, was not bound by a statement
lithe same letter of the amount duo for such
LfMie V. MDrriwii, 10 Q. B. 130.
i Held, that 8worn entries in the custom house,
lthe()iiaii' ly and value of goods imported by
pe party claiming the damages {occasioned by
tire) miller a iioliey of insuraiiee, who elaiiiied a
niiieli larger anioiiiit than appcired to have been
iiiipiiiteil during the period elaiiiu'il for, weri' evi-
deiiee to go to the jury as a iiii';i>tiire of ilamages.
Liniu'i' v. I'liiiiiii- / 11-111 nuin- Cn., S ('. 1'. 1,'{(>.
! Olio I'", transferred a suhooiur to ikfeiidant,
as trustee, to sell and pay certain creditors
(him.self aiiiong the iiiiiiiber) debts due by him
to them. A inenioraiidiim of defendant was
proved on the trial, admitting the leeeipt of
eert.iin moneys on this arioiint, and appropri.'it-
iiig it proportionately to the creditors : I Icdd,
that an ,ii tion at law would lie to recover the
.imoiint so admitted. I'urhx. Ili r.i\i/, iiC. I'. 173.
M . by letter admitted tliat the property in
disimte was in the h.uiil.s of a third li.irty, and
afterwards sued defendant for it: tlelii, that
siieli letter was evideliie, and the .jury having
, foiliid upon it for del'eiiilMit, the eoiirt wmilil not
interfere. Miu-ilniiiilil \. H'oui/, iS ('. !'. 4-_'li.
I The ( Ireat Western railway sliaiehnlders re-
solved, ill l,S.')7. toaih.inee C l."i(>,(HI() sterling to
! the heti'oit iV .Mil.vaiikee rail\\;i.y i'oiiiii:iiiy : and
again, in 1S.").S, a further sum of L'IO(l,(MM) ster-
ling, the two Slims to be ex|iendeil by the
ni.inaging and tinaeial directors of the lenders.
The latter aiiplied to the idaintitl's, then being
the bankers of the (ireat Western railway com-
pany, to aihance money under these resolutions,
kaige advances were made and exchange draw n ;
the business was eairied on for two years, and
money advanced by the (Ireat W estirii railway
to the Detrait i*c Milwaukee company beyond the
amount of the two loans, the result lieinga largo
balance in favour of the ]ilaiiititls. Oilliciilties
arose, ilefeiiil;ints insisting that credit was not
given to them, but cither to the i >etroit iV Mil-
waukee company, orto the individiialdirectorsiie-
gotiating the arrangement ; and the plaiiititl's sued
lor the balance overdrawn, ainouiiliiig to abnitt
.t;l,t)00,0OO:-Hehl, under the eiriiimstaiiees fully
set out in the ea.se, that a book coiitainiiig a
I'ejiort of certain ch.irges made by defeinlants'
shareholders against the direetois, and the reply
to the latter which had been sent out by the
Knglish to the Canadian board, and eireiilatiMl
by the latter here, was admissible, thongli of little
iniportaiieo to the case. Cihiiiik iriiil Jliiid' uf
( 'iiiiiii/ii. V. (.'/•<■<(/ HV.'*^(/-/( N. \y. (. o. , •2-2 i.). 15. L'33.
The action being for goods sold, the ipiestion
was the authority of one McA. to bind defen-
dants, as their agent: Held, that an alHdavit
made by McA., descriliing the nature of his
agency, and tiled by defeiniaiits on motion for a
new trial in another suit brought liy this plain-
till' against them, was clearly admissible against
deferidants. 77/((//('/- v. Si ml ct (d., 23 i). B. 189.
Action upon a tire policy by A., the jiorsoii
insured, averring an assignment to 15. & C, no-
tilied to defendants and endorsed on the policy,
and an agreement by them that it sliouhl stand
for the benefit gf B. iSt ('. I'le.a, denying the
assignment, &c. The policy cmitained no con-
dition as to assignment. The sale and transfer
by A. to B. & L'. of the goods insured m as proved.
An assignment w;is endorsed on the policy, pur-
porting to be made by A. to B. and ('., but
signed by D., the agent of A., in his own name,
and witnessed by M., defeiidiints' local agent.
It was proved that M. entered the transaction
in a book kept by him, and comnninicated with
the head office in Montreal : that the secretary
il'
ill
I ■i>i
120,"i
EVIDENCK.
i>ifl
h'»
tlitrc iiiiswt'ii'il, !<ii;,'j,'('.stiiig a traiisfiT of tlir
jiiilicy, aiiil ,1 new linlicy iipmi wliiili the lUf-
iiiiiiiii for tile mnxiiiii'il tcrin nf the ulil jiiilii y
hIkhiM lie t'lc'ilifcd ; :iii(l tli;it aftttwanls I!. fiC,
iiiiiit an aiMitioiial ]iri'iiiiiiiii td M. t<> covi r an
ilKTcasc (if tin' risk; llclil, tliat tliin t'viili'iK'i'
Wiis sillliciclit to sustain tlic issue I'lU' tlic pliiili- test as lie liail dniu'. Cliiik v. (Ii'miil '/Viil;";''
tiffH: Hi'l.l, also, that tlic .Kclaiatiou of K., H'. r,,., ■_>'.» (.), II. i;t(!. ''
one of the paitii's for whosi' lii'iiclit the suit wus
l>roui;lit, was ailiuissilih' as I'vidiiicf for tlu! lU.'-
fi'iiilauts. It' !>>.■< i t (il. V. 'I'liiCtiiiiiuiiruil I'liiini
Af'iKrdiicc Cii., 'Jd (,». I'l. ,"i,"i!l.
umhr the cirruiiistain'i's, wasailuiis^ili),,),
I'iflu'r that the ih'fi'udaiits had unt j; | „,., ,
of ch^fmrc, uotwithstandiu;.' what tlii'y.'issirtf'l'
otlirrwisi' thc'v vcoidd not havi' waivfil t||,.|i|'
to shew that tlii'v had aj;ri'i'd not towaiviil .'
if the iilaiiitilV wouhl sulnuit to tlii' t,ro|il"i
After oiu' trial, on whieh tlic jury faihil to
agree, defendants' solieitor wrote to tlie Jihiiutill'
to iimko theiu a |iro|'osition, "of eourse without
The i.laintiU'i.roduee.l a warrant isiii,.,lfMri,|, ,
aiTest fcu' not lindiiiL; sureties to tli,. i,,,,,,,^, ■
(lursuanee of an ordei' to tliat I'llVct mit, j i |
the warrant: Meld, that sueli \v;uT.iiit\n!j
|ii'iluA fai'ie evideiu-e of the or'ler
JihI>i:s„„, •_»;{<'. I'. I.VJ.
V,
/"■"«;/ V,
I Where in trover for gooiU, witli a ciiiintf,
uyjudioe. further tiian I will stale ni tins ' ,.,,|„^i„;, t,. eonvey theiii, it niMieiue,! tint tl
etter." The delendants, lie sanl, believed that ;,,,,„t,.,„,t; „.as made hetweeii the iiliintitr 'i
the plaintitr was not injured at all : l.ut if he' 1 '""titt ,u„l
would |iut himself under the eare of tlirei' medi
eal men named, at Montreal, for six months, of
V hieli they would pay all exiumses, and if these
L'eiitlenieii, orally two of them, would say they
believed hv was hurt, del'eiidants would waive
every other defeiiei', alllioiliih they tlioiight they
had i,'ood Ljronnds for further di'fenee, and would
settle witll him <m siieh terms as miL;lit lie
agreed on, or as the three medieal men would
name. This otl'er, he added, was niaile liy
defendants intending to use it if refused, to
shew their siiieerity and the plaiutitl "s reluet.'iliee
ti> sulmiit to a fair test. This was declined, hut
a few days after, and aftera jury had lieeii sworn
in the e.ise, an agreement was entered into of
Hiihstantiajly the same eharaeter. liy it the
the jilaintitV, at defendants' exiH'iise, was to lie
placed for six inonlhs at Toronto under four
inudieal men, and the defendants agrei'd that if
they, or a majority of them, should .agree that
ilelcncl.int for the s.ile liy the latter tn tliij fi.nii,.,
hut the lanil on which the woiUs ami iiiikhinrry
were was conveyed to the plaintilV's wife. «|i„je
liropeity was conveyed to the defcmlnit ,,« hjrt,
eoiisiileration : Held, that the plaiatilf, aii,lii„t!
his wife, was the proper pi'i'snii to siu'. Ii,.|i|
also, that till' acts or aiiinissiuiis ,,f tip' iiliinti'
wi'i'i' ele.arly adinissililc in evidnic,' /•';/„ i,i ,
//ill/;/, :{,-. (). I'., lit.
."). Aci'cinit-i III mil ml,
'I'he pl.iiiitill' is not lioiind hy credits i;iv(!
him ill aecouut on the mere stateiiiciit (.,•
defcnd.ant, lint may reject such ci-eilitsiiulc><,ij.
t'eiidant can shew that tlieyoui;lit tn lie ;illii\\f,|,j
(I'linliiii V. FkIIi i; ."> ( >. S. ,'i7ti
The rendering <if an aci'ouiit hy tlw ]i|;iiiiii!||
attorney in this province, (the plaiiitill'^ ivsi'linj
aliroad) is not hiuding tinally on the |ilaiiitill-
tlie plaintitV was injured at the time, hy the ; to the mode of calculation ; and even tin-
means, .iml in tlu; manner alleged liy him, they
would pay ilamages to lie estimated as jiroviiled
for. The mi'dical men, however, faileil to agree,
and the case was again lirought to trial. 'I'ln:
defeiuc was that the injury was either simulated
or caused liy the pl.iiiititl s own negligence. The
lettiM' and agieeineiit were admitted in evidence
for the plaintiir, and the jury were told, that if
ill donht as to the plaiiititl' having eoiitrilmted
to his own injury, they might cmisiiler the litter
as evidence against defendants on that point.
They found for the iilaintitl', saying that they
dill not think him guilty of any neglect : Hehl,
that the letter ;ind agreement were admissilile,
to shew, (111 the jdaintill's part, that he was
elaimiiig in good faith as he had proved hy snli-
mittiiig to the test proposed ; and that the de-
fendants might have used them to shew under
what circumstances and at whose expense the
pl.aiiititt had been niidcr treatment :-Held, also,
that it was no ohjeotioii to their admission that
they were in.atters arising since the action : -
Held, also, that though the letter was expressed
in the beginning to be without prejudice, yet as
the (bsfendants afterwards declared in it their
intention to use it as evidence to shew the
pl.aintitt' 's w.ant of good faith, the iilaintifT was
entitled to shew it and the subse(iiient agree-
ment to repel any sncli imiiutation : - Held, also,
that the direetioii as to the eH'ect of the letter
was wrong, and was equivalent to admitting it
as evidence of defendants' negligence ; and that
the venliet must therefore be set aside. Wilson,
J., dissented, ou the ground that the letter,
tin's thciiisclves incorrectly statin,!,' an ao "11118
may have it legally adjusted at any tiiiic UU
a tiual settlement. Mrllriiinr rl n'l. v, (;,uih'f{
((/., 4 (i. I?. .STS.
Tn an action for not delivcrini^ tin' iirnid
(piality of oil agreed for: Held, that ilifcn|
(lants' account rendered to .the iil.iiiitiUs afel
! the delivery, for li, 000 gallons of nn'k nil, iva^
I clc:u'ly evidence, as an admission hy tin'iuulwhil
it was tlicv professed to sell. Fjlii'ir 'I ■<'.'l\
The CumuUnn Oil Co., •2:i ij. U, WXl
I'laintiffs, being commissidii nieivliaiitsiiiXl
v., received from defendants a (|naiitit\iif«iieal]
with instructions to shi|i it to b. lur .silv tlicN
not limiting them as to [irice, iinr iliruitiii|;tlli
ein|iloyineut of any ]iai'ticiilar agent: aiiiltliel
made advances iijion it, which as tiny alk'na
exceeded the net \irocee(ls of the
cargo having realized more than the ailvaiii«
the other two cargoes much less. 1 u an :i tiiil
for the excess thus advanced, the ii':iiiitiIJ
proved that they had mailed tn ditViulaiit ta
account sales received by tlieiii frmii tlnir I
agents, with an account lietweeii |ilaiii*iiti.i
defendants founded upon them, ami tliattlit'4
account sales were afterwards seen in liis jh's-M
sion ; and evidence was given that tlw wlieJ
was in a liad condition when sliipinil, ii^Aitl
(lant knew ; that the prices rcalizoil woiv «ii
might have been expected, and the I'hargfssiKj
as were usual. It appeared, alse, that lart (
the wheat belonged to one .1,, and that '»l
ceiving the first account sales shcH'ing a pr'^iif
liii'l >""• ;; l;;Muii,i,
iS what tlu'viiH^irtcl,
HUM' wiuvlmI tli.-ni, „r
'cil nut tn wiiivi' tlnni
limit to till' iiriii 1
■•/■ V. <lriiiiit yViii4 i(.
wariMiil iAiiii'ilfnrhii I
ivtics til tin- lu'iici.', in j
tint olVirt rivitol in 1
it ^^lu■ll Wiirriint \vu]
till' imlrr. .N';//'iiii|i V,
Hills, with II ('(iMllt I'nrl
it (llllMMI'nl tll.lt th(|
t'l'i'ii till' |ih\iiititl' ;wl
Hir latti'i't"tliiMMnu,.r,|
(• wiii'Us ami iiiurhiiivrTl
\ (ilaiiit ill's wilV. uliniel
I the llcl'iMlil'Ult lis l.;lrt|
lit the lilililltilV, lUhl lnt|
• \ii'rsiiu til suo. II,'
iiissiiiiis 111' till' iiliiutif
II rviiliMli'c. Fi/,.','iir
I Unnl.,:.!.
Ulitl liy I'l't-'ilil^ i;ivciiliy
nii'l'i' stulrliu'lit III \\\i
I't such i'n'ilitsuiiK'<<ilc^
lu'V iiU'^ht til ln'iilluwv.
i. i'lTti.
ii'ctiiiiit liy till' iiliiiiitiiF
•c, (till' iil'iiiiititV* nsi'liiiji
lilllllly 111! till' |ilililltili< :i^
n ; mill I'Vi'ii tliu [il;
•tly statin,!,' iiu iir.'fi
sti'il ;it any tiiiu' 1*M
■i ijiir 'I III. V. (i''"''!'"
lU'livrriii^ till' iH"]".':
fill-; llilil. tiiiit ikua|
to. till' I'laiiitills iifea
alloiis lit riK'k o[\,m
uiissiiinhv tlii'iiiiii«M
tiisi.'ll. A'i/:;iii'.'"'.vi
I! {). 1'.. m.
.lissiim nii'ivliiiiits in N'J
aiitsainiiiiitityiifwlK'il
|p it til 1.. I'lirsiik'tM
(ivii'i', mil' ilii'a'tiiuiw
ticiiliu' ;i-oiit; iiiiiltliei
, which ax tlii'V ulle:'"'
l-l,'l.'lls 111' till! Sllk'S,
iiiori: thiiu till' iiilv:W<l
nui'h less. liir.ii»'ti'j
.ilvani'i'il, till' V'''ii"tif
iiiailL'il til ili'i'ciiibiit lOj
l.v thi'iii fi'i'i" >'"•" '
' ■ Hit' '
t lictwci'ii
1 tlu'iii, mil
rwariis sc
lis ^'ivi'ii
li when shivv';;
lirices vcn
)iliiii|H.ifs
tliiitthe*
•II ill his l**-'
thiit tiie *lie^
,1, IV* llilf«
|,veri'«tii
ItL'il, aiulthecliargessui
learoil, also, that i«rtj
I, one . I., ami that o«^
lit sales shewing a proDj
i 1207
KVII>KN(K
I iJOS
.fi'iiiliiiit hail Hi'ttlt'il with liiiii. This i'ar>,'o, lie h It it ; iiinl ii witiii'ss ili'iinMnl to liiiviiiLt 1
it'i'll
llOWl'V
'V'
fiT
ni't
lltKll.'*'
hail nut lii'i'ii i'iinsii;n('il to tlir sitnic tulil hy .\. 11. ami iiiiothri' tliit they hinl ox-
i,'i'il (anus iiinl niinli' ilccil.s to one aiiotlii'i'.
itlu'l- twi
r
ic ini'v hiiviiiLf loiin
iiliiiiilit
Ili'hI. that the cviih'ini' wiis the witlii's.s MtatiiiL' tli it he hinl iva'l tlir ilicil to
nlHiii'iit to slii'W till' |irii'c \«r w
hit'h the .v. I".,ilati'il lieli
I.H:<'J
Aiiothi'V witness, the
,.;lt was sun
1, nor the iiiiiiiinit ot ehiiriiis imi- .seemnl wile ot' A. IV, st.it.il she i;iive to W. K..
1 tlirri'l'i'l
|(Viii':/v
Wl
til til
e Hiiles
il
trial
WllH to soil
if A. n.
iiraiiteil, with eosts to ahiile thi't'\elit. ilenl in i|ni'stiii
ri(/-i'i'/'i'",
•j;i IX r.. Ill
•,i- i),,,i..
Iiiisliaiiil of ili'fi'Miliint, the
il there was also cviileliee
11 witness es-
that \V. li., Iiet'oi'e his ileath, ti
aminiil at the trial he hail jjot this ileeil, whieh
he slii'«fil to w itiiess : - llrhl, snllieii'iit i'\ iileneo
Till,
of a ileiil in fci' to A. H.
i/,iw/'v. Iliir'r/,, \'i
,.fellililllt.s' llttoriley Itilli; the siiliseri-
('. I'
I lit).
lull).'
Wltlll'-
til eertain cleeils, was as
il
■ton
tlii'trii'
lliv tlii'lilai
ntill'
M attoriies to luliiut then
.\ii aillnis>ioii of the exeelitimi ol the limit ;,'iiui)
IS lielil clearly to inelnile the sijiiiatnie to tlr
iiitimi.
Ill
il that he wonhl ilo so in t
, reerllit. ami the I'eecllit ol til
lie . . I III, II , ■ I I
then
Imt 111"!
I"'
■V Wl'IH'
iteil on lieilli; ealleil. While the
'alleil I'lir the trial he Mciit out of i
..tatnl. .\/,-/),,i,„l,/ V. (■/■id:. M) (.). I'.. ;t()7
iviirt. nil'
hciiif:
liliil nut return
II.
that thrileeds I
mill iiiit he receiveil as |iroveil on e\ nleiiei
hue!
.ilTci'I
iiclit to ai
Iniit
am
1. <,»!
it
iieri'. whether
7. iilli'i-
'The ililniissioiis of the
,1.1,
of all ovenlue
it Willi
M liiivi
lieeli siillieieiit to warrant the
lamlw ritiiii;.
li. Il.-i.
note are ailiiiissili
ithoiit callinu him, ii;,'aiiist
jiroof of tl
le w itiiess s
I'l III., It (,).
jreoi'iitiini
lifeii. ir;«-("'''v. -I/O"
WliiTe ilel't'iiiliiiit's attorney liml iiyreeil, in
leiwtiiwiit, til ailinit ileeils liy the ])i'oilnetiiin of
praiiiii'i'i'il* witliuilt iiei'oiiiitin;; for the ileeds,
L,,l t„ :i,|iiiit the exeeiition of sneli ileeil.s ii.s the
Iphiutill'iiiii-'lit iiroiliiee, without iiroof liy ii siili- ,
licnliiii!; witness : Melil, that it emihl not he j
.,,,'i'liii that a ineniorial sii,'neil liy the yrjuitee
iijiuicviilciice 111' the (leeil. Ii'ii/lii/i/i' v. .!/<•-
|i,l,',, I'J (J. I'.. '.;<»."'.
[i,|i'i'tlliclit, thelHiint ill ,lis|inte lieilii^ W hetlier
ll„ iiiic lit the iiliiiiititl's, hail ever eoiivcyeil
hliil til iiile •!. II.. ileceaseil, (iimler wlioiii
left'liilillit ilcriveil title. I e\iilelice was -iveh of
iivtrsatiiius in which T. I!, hail stateil either
latlicliiiil given a deed to ,). I!., or that the
itle »ii.'< vested in .1. I!., lUiil a letter froni T.
Lwiuialsii )ii'iiiluced ret'erriiii; to .such a deed ;
: nil strictly le;L,'ill e\i,lenee was yiveii of the
twiti'iits iif such deed : -Held, that siieli evi-
fcna', miller the eirciinistanees. was adiiiissilile
Intk iiai't 111' ilefciulaiits, as primary evidence,
Ithiit iiiitice to the plaintilVs to iirodiiee such
eihviis uiiiieeesaary. L'luji r.t 1 1 n/, v. Cnnl, 7
: r. 8!i.
Tliethiiil trial uf an aetioii of ejeetnieiit wa.s
nil' iilmn luiyiiielit of costs, '"also on the
joinlitiiiii iif the defendant admitting on any
Jutiirt tiiiil ill this causi' the title of the lessor
If till' [iliiiiitill' til the premises mentioned in the
eilariitiiiii, ami the right to recover jirini.'i I'aeie,
u' .shew a suiierior title to hers on the
li,il thi'i'ciif. 111' any title or defence to defeat
Ike siimc lit law," i!te. At the next trial the
piiitill' I'cfusi'il to iirodnee the [latent, or admit
ihe issuing or date of it, so that defendant was
milili' til gii iiitii his defence miller the Statute
l.iraitiitiinis : - Held, that the iihiiiititl' was
ptitli'il til take this eonrse, for the elt'c't of the
ilirwas til ilispeiise with any proof or imidue-
ioii lit title nil his part, not merely to oliligc the
lefeiiiliuii til lulmit such title wlien produced.
)Ii:U'iiii, .1., diss. Dw d. .Sliiplit:ri/ v. Jiuylii/,
) Q. li. -too.
I The cviilciice shewed that A. B., the ancestor
" the female iiliiintift', through whom the title
■M cluimtil, li\ed on the land in question in
(32, claiming it as his own, until 1843, when
S2
a iiei'soii sniiiLi upon the note, to
I it. .1/'/'
I hill
II lie lias
'/'.
sul).s,'i|uciitlv t raiisfciri'i
•2 {.). II. •J7ir
.\.. del'endiint's attorney, iKceptiug his ini-
strui'tiuus froiii 15. as defeiidaiit's agent, ami
deleiidiiiL; miller them, is Imiiiid liy the admis-
sions 1). has agreed to make. I>n, d. .]lfl)nii,ili(
V. /.('»;/, 4 (,). IS. 14li.
Though the making or endiiisiiig a imtc may
he [Hit ill issue liy the idea, lings, the plaintill',
to entitle himsell'" to the costs of pr , must
Herve the defendant under our rule of court with
a siiiiiniiiiis to iidiuit. Wubji, hi v. Lniu. 1 C.
I,. ( 'liaiuli. ISI. Macaulay.
(hi a motion to admit, im summons can ho
taken out until the »'Xiiiratioii of forty eight
hours from the time specilied in the iiutiee for
an iiispei'tion of the dociimeiits. ('■iri/w Cum-
1,11-1. mil, 1 I', i;. 140. ('. I.. ( luinili. Hnrns.
liefore a party can ta.x the eost.s of olitaining
an exeiii]ililieatiiiii of judgmeiit, he iiuut serve
the other siih' with ,i notice to admit iimler the
rule of court, '-'8 K. I'. IS4'_'. The master, how-
ever, though he eiinnot allow such costs without
iiiitii'c, ite.", may allow the costs of procuring a
copy of the roll, ('ninjir v. MrKirlnii-, 1 ('. L.
I'haml). 'J'JO.— iiiirns.
Siimmon.s calling on defendants to admit doe-
Uinelits discliiirged, as the ('. I.. I'. Act, does
away w itii sitnimonses to admit and orders upon
tlieiii. Dii i'liMii V. Till' Jiinliiii H.itiili,'l\.. '\.
i\\. ('. L. Chamli. Burns.
The proof liy the plaintill' of an admission liy
a ciuistalile, .sued in trespa.ss with two justices,
that a paper produce'il at the t.ial was a copy of
the warrant under which he acted, is not siiHi-
I'ieiit evidence as against the justices to entitle
the coiistalile to an aeipiittal under '1\ tleo. 11.
e. 44, s. (•(. Kiiliir v. Corinnill, S (}. H. lliS.
On the !)th .January plaintiff's attorney sent a
ti. fa., in Holiinson r. lianlcs, to the slieritF, with
, a letter saying that they wished to get at two
I shares of certain luiihling society stock standing
in the name of B. and his wife, and which,
though standing in their name in a representative
capacity, were nevertheless the property of the
i wife, and therefore of the defendant. In an
action against him for false return of nulla bona
I to this writ : Per McLean, J., evidence that B.
1 2!)fl
EVIDKNCK.
Mini liinwili' MiHiUi- 111' tlu'HL' uliari'n il» tlii'ir lUii
w.iH iiiailiiiisrtilili' in tliii mtimi ^^^;llillMt tln' sin rill',
«\rii iiH |iiiin;i liuii' tviili'iici' ut ci\v iii'i-iliiii, iiiul
nil aJHii wci'i' iiii'<wrr» 111! Datli liy U. to inlfiin^'ii.
toi-it... /t'niihiMui, V, f.', ■.(»./. , IS (,». II. •_'(;(>.
till llir trial 111' an iiitAriili'iuli r iiNiii', ili fen-
il.inli ullri'cil in t\ iilinrc a ti'ttfi' rrmii tlir JMil^;
nniit ilclitiir to tln'Mi, « liicli \va« njii'tt'il :
IK'liI, tli.it as it aiUMaicil Irniiitln' cvidi'ru'i' that
the |ilaintill' allnwi'il tlii' iinluinint ilclitur to
make iitluT ilrilaiations with ri^iuct tn the
|irii|icit\, it ini>;lit Im' iirfsniinil tiiat In pii-
initti'il liini til iiiaki' tlniHc ciiiitaincil in tlu'
littiT, wliiili WM* nH'iTnl ill I'viili'Mi'c iiml rc-
jiittil ; ami that thcri' In iiij,' such a lipiiinlatiiiii
laiil at till' trial as mIu'WiiI |iriiiia fario a jniiit
inti'itst, or an iiitci'fst nl' smiu' kiinl, liftwi'i'ii
the plaiiitill' ami ttu' jml^imiit ili'litnr with
rt'j.'iiil til tin.' uiMiils ill i|Ui'sti()n, till' litter wan
niliiiissililf an cviili'iirt'. Ilnrii'i' ii v. Itmik ti/'
Ti>i;,iiln, lie. I'. UMl.
11. Ill, ill an ae'tinii I'nr (•(lUisinii. that cviihlK-e !
Ill' (li'il.iratiiiiis niaili' liy the caiitaiii nl' ili I'ln
ilaiits' vtssfl, as In tin' laiisc nl' tlu' ai'i.i<li nl, mi
thi'ilay alter it had hainit'iu'il, were iiiiiiliiiissiliii.'
I'nr tho iilaiiitill': Init that tin' vi'iilict shniilil lint
111' iiiti'rfi'ii'il with I'nr thiir ivci'iitinii. iis they
jilHioarcil tn have lii'i'ii niily ri')>etitinii> of what
vassaiil liy liiiuat the time nf the aeeiileiit. Shmr
V. I)iSiihilii rrii Xarijdt'mii Cii., IS (,>. H. 5-II,
QtlaTi', Mlietlier the adiiiissinii nl' niie jniiit
tenant nr tenant in eninninii, as tn the extent nl'
the interest held liy him and his en-tenants, is
admissilile as evideiiee aj,'aiiist his en tenants.
y/i /•»,(,■'/ V. ]\;ia;r, •_> !•:. & a. i-_'i.
Ill an iietinii liy |ilaiiiliir fnr wat,'es earned at: ii
lumheniiaii, the dis[ilite lieilig w liether tlie Jier-
Mill hiriiij; him Mais deremlaiit's assent : Held,
that the statements made l>y I,. & Nl., under the
eiiviimstaiiees set niit in this case, were luniierly
reeei\cd. Held, alsn, that a iiieinnraiidiini in
deleinlant's \Mitilij^, niisi^ncil, and attached tn
a liill nt' sail! relating tn tiie liiniher, was admis-
silile. Stciniri V. Sratl, '.'7 i). 15. '-'7.
Letters are admissilile as evidence nf the case
vif the jiarty lundiieing them, thniigh they are
nnt nielitinlieil in the jileadiiigs. Wihimtl v,
Boii//,,ii, 1 t'liy. 47!>.
The atlniissinii of one partner, that a third
persuu was jnintly interested with liiiiiseli ami
liis cn-iiaitners, is nnt uviileuee aj,'aiii.st the
latter tn (irnve such jniiit interest. I'lirj'riii v.
I'dnliii.ikid; I t'hy. "i.S'.t.
AN'here tn let ill seenndary evidence nf a ImiihI
the attnrney nf the nhlignr was called, and uimn
lieiiig shewn letters w ritteii by liimsclf in which
a deed and hond were relcrrcd tn, and the enn-
teuts nf the linnd stated, lie swnre that he had
111) reenllectinn whatever nf these instnnneiits,
altlidugli he had nn dniiht frnin reading the let-
ters that such bniid existed, the oniirt I'ufused
tn receive such letters as evidoiiee nf an admis-
sion by the obligor's agent of the existence of the
bond, they not being part of the res gesta>.
Chirke V. Lltl/<', 5 Chy. a«3.
There may, in a proper case, be an aiijteal from
the master's ruling as to the inadmissibility of
evidence, before the nuister makes hio report.
A bill was tiled by A. and B. to enforce certain
registered judgments. B.'s interest was (is assig-
if .\. The as-miiinriit wan l'..r th,
im\
■ikhiI
nf creditiiis, but it did imt apiirii l\v\\ ^u
cieditnr was paitv nr privy to the .H'vnjiiiii,||.'
and the assicnee liad swiuil in nlic 111 tjli'.iili '
\ its tiled, that his niily interent " .i'< .i» tni.i-
Inr .v. : Held, that any evideine ayaiiint .\, ,,„
admissilile against Imtli plaintilN. .I/./;,,,,,,,/*
Il'<;;/A/, i--'('hy. .VfJ.
In an .idiiiinistratinii suit themily iiiimfiiftJ
reeei|it nf certain mniicys by the wil'i' iliirin.iy
life lit her hiisliaud, w as her n« u v\ iilmn., i'|, J
at the N.tine time she stated that the lUuiiivU
^ been given tn her liv her lilisli.ind. 'I'lu'i^nJ
I "olisidcied her entitled tn retiiii tile iiiiiuiutJ
iainl that it Inrmed nn part nf the test:itii|v
' snmil estate. Mc l-'.ihrnrili \ . // m-, Ii ('hv, ;
in. !'l;i;siMi'linN'i,
1. As Ii, />,,,/,<,
(ai Hi III nillii,
I ii'( ',,iii; iiinii'i . I .\ lessee of the cihh ii \\tU-i\i
assigned his lease tn Ii.. who paid liiiii luritiuJ
went into pnssessinn, and after smm' years .IJiJ
in pnssessinn, having received the nri^inal lioi
frnin A. A. afterwards died, and la.s ailiiiimu
tratnr brniight ejectment against ll.'.s iiilniiuij
tratnr. .\t the trial the lessnr nl' tin' iilaimij
put in an excinplilic.itinn nl' the uii!,iii;il Ic
.and letters nf administratinii. The ili'li'iiiLun
prn\ ed as abiixe, and that .liter li.'s ili;itli ilJ
lease and ntliir papers had lieeii taken mit, if H,!
trunk, and the lessnr nf the ]ilaiiititf liml mm
stated it was in his pnssessinn, '{'lie Icisc «,ij
nnt lirndllecd nil lintiee, but the lessnr nf tlj
plaint ill' prndiiccd it afterdefeiiil.iiit'si'ast'cliHj
Held, that the jury wcri' jiistilitil in iirmiai
iiig a legal assigiinieiit
circumstances. /'m d
•J t). .S. II.-..
nf the lease llliilir t|i|
Miiriih;i\. Mnll,,,
When the husliand nf a w
Milan sei/i
il i.f k
syiuil
in her nu n right, during the cnveituii'
writing (imt scaled) ackimu li-.lgiug that lie luj
bargained and snld certain lamls, and lurii [viii
in full I'nr theiii, and afterwards hy lettiTiliRrl^
his name tn be signed tn a deed ul the s;uii(
land, which was dniie, the wife nut cn:ii|ilyiiii
with the reipiisites nf the statute to cli'l«irt \v:lB
her estate, and the vemlee ciitercil aii.l cial
! tinned in jinssessinii as nwiier iiiiwai'ilsnftMiti
years : —Held, that a jury, in ejectiiu'iit lirmiilii
by .such husband, might [iresuiiic a I'mivi'vak*
frnin him : and that, during his lile :it liMst, bJ
ejectment eonhl be sustained tn disimssiss t!i|
vendee nr thnse claiming under liiiii. /'■»
U'il.ioil 1 1 H.r. v. 11 '(.«(' //.<,"■■) (>. .'s. •-'Si
I In ejectment the plaintitV prnved a patoiitt
! himself, which had been in his jinssi'ssiimsinol
ISO.'!. Defendant claimed under a di'iil imii
tn B., executed in ISOli. A. was imt sliiwul
have been in possession, and no doiil fruiii tbj
■ plaintitV to A. was produced, unr any I'vidciicl
: given that he had ever executed siu'li a ilrtdj
! the facts proved only went tn shew a li;irf
liability that he might have dmie so: -Holil.tlu
there w as no legal evidence fur tlio jiiiy. mi '111
facts stated, to shew an alieuatinn hy tlii'[>:«eij
tee. £>(!<■ (1. J'ctit v. Jhminl, U Ij. B. TiOl.
The plaintiff claimed under deeds from X. \
S. in 1834, and from S. to plaintilf iii ISJIl
KVIDI-INCK,
inoi
lit \\i\0 i"V tlll''l..|ullt|
not llplll ,U t||,|t J5yj
y ll' till' .l"H!lllllu,>;l
Pll ill iillr Hi tliiMlil,!!
illtirtut «.l» :h trii-ml
\ iilrliri' iiy.Ulliit A. s^l
ililitlll--. .1/' /'mim,(,I
it liir iiuU IM'iMif.if t|i(|
liy till' \MlV illlriii; ttiJ
I'l' (iwii v\ iilcii.v, wvj
.'ll tli:it till' lliu.h
r liiwli.iiiil. 'I'li,
tci ivtiill till' ;uii:4,..J
rt cil' till' ti'>l:UM|'<]*HJ
•ill V. /,'..s lit'liy. ;i;j_
MniiiNs,
. r.ill;.
sfi' 111' tlu'i'niwnvii'lvilljj
wliii \iaiil him li>nt:iii|
ll iil'tt'i' Hi mil' >i';ib '
I'fivi'il till' iirii;iii;il Kj^
I ilii'il, aiiil Ins iiilwiiuM
lit ii,i;;iiM>t I'l.'s iiiliimui]
L> Icssnr ul' till' jil
(111 ot' tilt' iil'i).'in:il
r.'itiiiii. Till' ili'li'iiil,
llmt al'ti'i' \>.'* ili'iitii I
ail ln'i'll taki'linllt"! r..'J
t' till' iilaiiititV h.i'l a;.,^
iSl'Ssiull. Till' ll'IIW «](
I', liut till' IrxsiT I'i tlK
'rili'ii'liil;nit'si';isi'i'|iw.i|
M'l'i' iiistilii'il ill |ius«j»
, 111' till' K'asi' iiiiiliT iIk
M,iri,l,ii\. MiilM' Ij
a wniiian si'i/i'
ll I'i 1,
IDl
till' I'liVl'l'tlU'l' Slglll'l
iiiwli'iluiii^; tlwit iii'M
ill laiiils, ami Ihi'U i^iil
■wanls liy k'ttiTiliruul
|l to a ili't'il I'i tln.'s,uii(
till' wil't' not I'uiiii'lyuij
statiiti' to ili'i«rt Willi
iri' I'llti'l'i'il illl'l
iM iii'i' iiiiwai'ilM'I twi'iiti
|i-\ . ill fji'i'tiiii'iit liri'iiiWr
iii'i'siuiii' a I'
illlVl'VMlil
liniiu
lite at li'iis;,
'$.< tli(
kailK'il to ilisl«>sst
liii,' iiiiilir liiiii. '""
ititV \iiovi'il a i>atiiitt
In in 111
'I"
i-iimi sinil
'll unili'i' a ik'i'il
A. was not !
111. anil noilci'il Inniitkj
jiliu'i'il, nor any i'viili'»«|
|l- L'Xl'l'lltl'il siu'lwu'
LMit to slii'W a liari' l'«
41i'U.thi
ivvoiloni.' so
iico for the ]""'.
alienation hv till' p:««ij
mini, ti Q. I'' ■'I"'
under ileeils from i
to iilaiiitiff in ^'^^
IW
iiiti'ii
l.wl'
\, hail iiiailf IV ili'i'il til liiiH Mtt'|i-iiiiitlii'i', liini thai tho jiati'iiti'i' li,'\.l rxoi'iiti'il f<iii'li a ilonl,
iJil to ho ill lit'ii iif ilnWiT ill liH tithor's ainl it h iil ahvay'i lioiii mo iiinlorMtnocI in tho
It waH I'loar that liin iiiti'iitimi wan toioii- I'linily. It was aJNn iiiumiI that until tho jii'i'Mriit
vtliif hi"' ''<'•''' f'"' ^*''''' I''"'' "' •'"' '"^' ''"' **'"' ''■'' I'ati'liti'c'!* laiiiily, tliiiii'.;li li\ iiii,' iIuhi' to
tiK'
I liMHi'Vi'r
waK I
I' tl
10 I'ant iiirt. It waH y
til. »i
jtlllli:!'!
1 vrv mil
iii'llii* l""ii
rnvi'il till' jut, liail iicvi'i' inailo any ilaini In it : that ill
that S, hail lii'i'ii ill |iii!<»i'>.«niii i>t' I'SI.'t II. hail ,'im«iiiiioi| tu iloal with tho iiiii|n'rty
art in IHvIit, ami that ho iiml tho plain- a>« lli^* own liy I'lMivoyinu a iinrtioii ol it tooni' S.,
over Mllii'o
ll.'hi. that
•ll ilii'il wan ri'i^istoi'i'il ill I'Slii
wh
ill'
in
mi A. to the I'laiiitiir, in I'lmliniiatinii Hi'i|iii'iitl\ ouiiM'Vt
itii lull I'livi'iiaiitH tor titli
llll:'irtt'SSlllll
mill
nut
[(iir »"'
h a eon
vevaiii'o Wiiiilil 111
|iii'sniiii'il, that ill ls;i."i II. n Kiiii ami lioir-at I iw iniivoyi'i
iiiHistont I the lami in i|iii'stlnii with full ihm'ii iiit
hth «liat «'
III 1,1,
ll. .■>: ••
aM iliilio ill IS.'M. ll'/uVr V. Mi/ii:m, , wliiih |iiis.-,r-isiiiii has ovor ci
I that tho jiati'iit was Iniiml .iiii
tf.1
lii» ii'f
IllVMlltillli
ll''. It wa.'* I
i; the noiiiiin't' of the ornwii, tr.iiiHl'or-
tiiii'ite to M. in ITtttl, who smm at'tor.
II.
I
th'tl tlii.-<
II.
Iliiwi'il ; ami
s paiior* ;
wax .Miitlii'ii'iit i'\ iiloiii'i' fruiii
ihii'll a ileeil riiilll the pateliteo In II.
It !>'
not iiiiih r mal, I'nntraeleil ti
tl
\m
ll. //;// V. I.nwi.t <ll..
c. I'
lit shewn whether ( '. Ii.iil in.'iilo the
imiits s|ii'eilieil liy his aureoineiit, luit he
The elili'st sill
Imnt lilt'
bl li.'M
hail
11 aiiil hi'ir .it law nl a |i r^mi w liu
liossession, ami lie a
mil
111 his liletiiiie .'|o|','(>i| liii' the ]illl
,'ll
lit
lOSl'l'llll.lllts I'll
liMiii the ( ana
laC
iiii|i Ills', lilt thisi'iiiiiitrv
iiiiiiitirriiiitt'illy tor imire than liity "ith"iit in any inannor atteiiijiliiii; to i'oiii|ileto
ilelemlaiit eliiineil iimlei' tin
iteiit lirst is.siieil tu .\.
th
I'
Th
III
ler I'llllillell III the |i
W hose
'tliieiit. It was left to the jniy ti
iln IVi:, a |i;
Jriiu.lit I'ji'
kiri'iiinii' a ^'r;int iiiaile liy .\. liofuri' the jLiteiil,
tlhi'V liuiii'l for the (ilaiiitiir, ami the emirt
., it. I set aside tho verdiet. Mr I tnmilil \,
... \\i}. II. 7!».
Eji'i'tliii'lit. Ihe lilailitill' el.'lini 'd ilii.lerlhe
JII1I.V111 and heir atd.'iw of the inteiiteo. I''. I >. ;
'liiliiit under his seeuml son, |)., to wlnnii it
j;ill,'i;i'il that he had I'onveyod. The patent
iii.r l.'.'OO aeres, iiieliidiiij,' the l.'Uid in i|iies-
rill' lieir-atdaw, who eonvoyi'd to the
biiitill'.'i. was liviii', in the state uf Mii-hio.iii,
I ,i|.ln.al'i'il e lielieved he li.id no title
llitiitlu' lilaiiitilVs imreliased his rioht fi-om hiin
' :i small eonsideratiiiii. h'ur tho defeii-
«as proved that it was always iiiidei'-
i>«l 111 till' f.'iiiiily of the patentee that I >. uwiied
lishinl ; that D. had lent his father nioiiey,
"liiiil lii'eii heard to say that ho had^'iveii
II this land for the ilelit, if lie eoiild not pay ;
iatlii' afterwards said he eimld imt : and he
k'lll. went tojiether to the land, that his father
lij;lit |iiit liiiii ill possession ; and on their re-
Ini. till' father was relieved from the deht, he
^viiii; L'iveii I'- the l.'iiid. This w.is liefore
The eldest son of the patentee had Hex el
111]. liny I'laiiii, knowing, as his lirnther swore,
iath. .iwiu'il the land. |). devised this, with
jht't liiiiil, aiiioiif; his ehildreii, wliu liy iiartitiini
lovivi'il it til one of them, .)., who afterwards
visi'il III his hrother It., I{. died, and his land
si.il.l miller a jiid^'inent, olitaiiied against ('.,
mill', "11 a eoiifession given liy her as his ad-
|n!,»tiati'ix. and was ]iiin'liased liy her at the
. .■iiiiK'iiiiveyed to the defendant ; ('. and her
!i*l hiisliaiiil, M., tirst went to tho land in
|3ll, aiiil ilifeiidaiit and his father had held it
riie plaintill's had also taken a eonvey-
^f from the heirs of I).: -Held, Hurn.s, ,1.,
wtiiij;, that there was .sntlieieiit oviiletieo
' till' jury to ]iresuino jv eimveyaiiee liy the
Ifiiti'f. ami that having found for the ifofeu-
kit. tlu'ir verdiet should not lie disturbed.
¥:f ■! id. V. M,i.ni;ll, 17 Q. H. 17;}.
Incjectmeiit it appeared that the patent issued
lone (1. in 1802. No conveyance from the
kntee to H., through whom defendant claimed
'. w,is imiihiced or proved ; but one of the
btee's grandchildren proved that shortly
fiK 1812 H. came to his father's and informed
heir I I'haser p dd Ihe lialanee nf the piireliise imnicy
, line nil
the la'id, ami sold it in iinrtiuiis to tin
eo
' sever.il jiiireli isers. In a suit lirmiLdit in the
11 line of the sever.il iiiiri'liii>. is against their ven-
dors and the ( 'aii.i'la I 'iliipany , it appeared that
iiany
lii'i'i
j the heir at law had lueii heard nf for up-
wards 01 twenty-live ^ ■.■ .. The eniirt, under
I the eireiiinstames, ordt 1 d the eoiiveyanei. nf
the several pnrtions t i t'le \iiii'i'liaseis, without
reipiiriiig .my adio'iiistrati'iii nf the es' il • nf the
heir-at law, the ■ laila ( 'milpaiiy i" .1 nbjeeting
theri'tn. Jliirii- \. Tlu Citn'i'l Vo)iil>iiiiii, 7
j ( 'hy. riS7.
! (,>iia're, as to wheth. ' tl.. ]nesnni|itinii that a
iii.'iii 's innneeiit nf iiaiiil until prnved guilty, is
; siillielelit tn relillt the presmnptinii nl the exeeu-
tioii nf a fraildiilelit deed . ,1 I'd by the Jironf nf
the liamlw riling of an att. sting witness /mi./mw
i V. .Sliuiii-i, 10 I 'by, •J-t;t.
()i'lif-('iiiiriiitiiirc.\ ,\. im rtgagud lumls in fee
I to I!., and before tlie tiiiio for redeniption ex-
1 pired, nil an arraiigenieiit with H. , A. eoiiveyed
I those same lands in fee tn ( '., in full satisfaetinn
] of the debt seeiired by ninrtgagi . No re enii-
veyanee frnni I!, tn .\. was prnveil. V. went into
possessinii and eniitiniially held Inrabnitt thirteen
years, when M. made a eniiveyanee in fee nl' the
same iireniises tn I)., elaiining the title thrniigh
this innrtgage : Held, that I >. was not entitled
to reenver ill ejeetnient, and that if neeessary a
i re-eonveyanee frniii U. tnA. might be presumed.
l>oc d. JfrLaiii v. ir/(i7. siWe.s', .■. <). S. ;i-_'.
\Vlien iimnrtgagor ia in possession, a mortgage
may be presuiiieil satistied when twenty years
have elapsed finm the time of the [laynient nf
the mnrtgage nioiiev. /'m' d. Mr(/rf(iiir v. Hdirkf,
T) (). ,S. 4!lli.
Semble, that a eertilieate nf a registrar of the
discharge nf a mnrtgage, eiidnrsed nil the mort-
gage, is sullieicnt evidence of n reconveyance,
without proof of the exeeutinn ni the disehargo
itself. Doe d. Crook'.'ilniiik v. Jliuiihir.itoiic, (JO.
iS. 103.
AN'here interest on a mortgage has not been
paid, and the mortgagee has never entered, it
will be presumed that the money has been paid
at the day, and eonseuuently that the mortgagee
has no subsisting title. Due d. Dunloi) v. Mc-
Xitb, 5 Q. B. L>8U.
1' ■•: i
1303
EVIDENCE.
l:5in
Plaintiff' piirclmaed at 8licriff''s sale defen-
dant's interest in i'(Ttain lands, and, on ejectment
bi'nuglit in IS'iC), dufendant prodnoed a mort-
gage executed liy one H., niider wliom he liad
gone into possession, to secure repayment of
£28 in Octolua', IS4(i. This nioi'tgage iiad been
satislieil, as was jiroved l>y the mortgagee, hut
no diseliargc luid lieen registered : — Held, tliat
the jury sim dd liave l)een directed, as a matter
of course, , presume a reconveyance, ami the
plaintitr shoulil recover. Cul/iiis y, Driii/inii/, 14
Q. B. 3i»:t.
In ejectnuMit, it ajijieaveil that A. in IS3!I. con-
veyed to his son N., who devised to the i)hiintill.
For the defendant, it was ])rovcd that in IS-.S
A. had nuule a deed to another son, 1., whicii
was produced v llh the seals torn oil', and had
been found among A. 's papers after his death.
A few years after this deed was given, 1. had re-
mo\ ed from that part of the country, 'i ving A.
in possession, lie, I., died in IHIJO. i; 'r hav-
ing maiic any cl.iim, and A., in 1S3N >u\ his
son >i'., i,i IS41, both died in ])ossess u. In
1847, l.'» son brought ejectment against N.'s
widow, this plaiutiil' being then an infant, but
the suit was eomiiromised. The jury were di-
rected that if the deed to I. was voluntary, or,
being nuule for good consideration, was cancelled
by his consent before the conveyance to X., the
plaintill' should lecover ; and they found in his
favcmr : — Held, that the mere cancelling of the
deed by I., or witli his consent, would luit (liv(vst
him of the estate, but that if 1. gave up ami
cancelled the deed intending to surrender the
estate, and his father afterwards entered and
conveyed to X., and that jxissession was held
consistently with these facts till 1847, the jury
might presume a re-conveyance by I., in pursu-
ance of his int( ntion. Frat^ir v. Fr<ilii-k am/
FrtiKvr, 21 C^ H. 343.
?ni
•&■]
Ot/i(r('iiyis.] — In ejectment the plaintiff proved
a ]iaiier title, but the patent di<l not issue until
1S2(), and the deed from the patentee was exe-
cuted in 1824. 'i'his deed was lost, and the
memorial of it shewed it to have l)een an ordi- i
nary conveyance in fee, but not what covenants |
it contained. The plaintitt gave a ncitiee under j
C. S. U. ( '. c. 27, s. 17, and defendants shewed |
no title : ]Ii4d, that the deed by the patentee i
should be presumed to have been one which
would operate by estop])el, and tiiat the statute
ai>plied. A nnHlnmij v. L'dtk ct <il. , 20 Q. B. 425.
Po.ssession is evidence of livery of seisin of
land ; and where ])osse.ssion goes with a deed
for uiiwards of thirty years, seisin nuiy well be
presumed. Xulan v. Fux, 15 C. V. 5(!5.
By a deed dated 27th March, 1824, (me J. S.
leased land to il. 1". to hold from the thirtiith
diuf of till- miiiic iiKititli, until her decease : —
Held, that though under the authorities, it
might, if executed and livery of seisin given on
the day it bore date, be void, yet if not executed
or livery of seisin not given until after the day
on whicli it was to begin to operate, it would be
good. Ui.
Send)le, that the jury might properly have been
asked under the peculiar facts of the case, t(j pre-
sume one or both of these propositions in favour
of the plaintiff, the grantee under the deed, Jh.
Held, that the word "signed" before the
lessor's name to a lease raised no presumption
that the instrument was a co])y, nottlienri.i
Jiichtr V. WoDiit, K; C. I". 29.
Defendant jiroduced a deed, upwanlti oftliift
; Olio years old, with such eertilii-.ite tlitiv.,,;,"
j from ])laintilf and her husband to tli,; iltvi-m' '
J dei'endant's wife, and it was admitteil tliat,!,
! fendant and those under whoiN \w elaiiMi.il ui
j been in i>ossession <luriug all this |iiTi(iil ; .|(.i]
: foUownig O.sser c. Vernon, 14 ('. I'. ,')7;!^ tliatti
, deeil with the eertilicate upon it, cMiiin.. in,™
i the proi)er custody, proved itsell' : ■,\\\,\ tliau'nm
i the fact that the posscssicuiof tiie land liailr.m
■ ni accordanei! with it for more tiiaii tliirtvuiie
years, it woidd be presumed that tho il,.;-,! j,
: produced had been properly executed, aii,l tla*
■ every thing done ))y the justices, a^ iniiJi,
cers, had been rightly done uutil tlie iniitn
I was shewn. Mmilc v. FarliiKii r, 17 ('. p. 41'
! A witness testitied that A. W. leaseil tjiv 1,
to l-t. for five years : that botli parties iiiiil m.i
; formed him of this : that 1>. went into luK^tJ
i siou and told him he was a teu.-uit tn A. li.. au'l]
j that he remained on the laud until tlif lin
! 1843 : that W. B. moved on and lived there
I with B. ; and that both said tiic luniier liaj
Ixiught out the balance (d' the hitter's tenuitliai
I he heard of both having gone to one L. tu havj
j the lease signed, and W. B. said tiiuy Iwil M
j there to get the "w?-itings" signed, .-iinitiitj
witness, the second wife of A. li., stated thatfi
■ had a lease for live years from Mari li. Iscj,
: a certain rental, and that I!, and iier luisliiai
j had both tidd her the terms of it. A tm
'witness, the wife of B. , said tjiat her Imsliani
and she moveil on to the land in ISt.'i, iiii(ltr7
j lease from A. !*>. her father, for live years. ,id|
i that her husband lived there for several iiiniitlJ
when he sold out to W. B. : dield, mkm
evidence to warrant a jury in presuming' a wrin
ten lease for five years from Mareli, 1S13.
hufct iu:y. Burfi'li, 17 C. 1'. Kiil.
A deed is presuULcd to have l)eeu delivtredJ
the day it bears date. JLiijii-iiril v. Tliart'tl
III., 31" y. B. 427.
3. From y<»i-proiliif/i(iii of Hunts m' Aivi,ni>.%
If a party withhold fnuu inspootinii a lool
containing entries relating to tlie matters i
<piestion in the cause, on the greiuid tliat it]
private, it will be taken to c mtain eviddue
favourable to himself. I.oircll \. Tmlil iiol.,\
c. r. 30(i.
Where all the accounts and recdnls nt i
election are inteutioiudly destnjyed liytlwr
spondent's agent, even if the cause ln' HtM
of all other circumstances, the .str(iii:;cst oiiu'lj
sions will lie drawn against the n.'spouikiit. 1
every presumption will be made a;.';u!:-t tl
higality of the acts coiu^ealed hy such ininliil
Collllli/ if (Iri'il, Soiltli /iiilhi;! Eli'liiiii, Hmd'A
Lnndi'i; 8 L. ,"l. X. S. 17.— Iv t. -.Mii«at.
On an information under 27 & -S Vict c
against defendant as a distiller for tho iiuiip
ment of duty on spirits mauul'actinvd liyliia
Held, that the jury were rightly tild tliat J
fendant's non-production, upnu miticc, ol'll
books, which he was proved to liavo kopt, i
nisheil ground for strong presiiiiii)tiiin aflilj
him. Attorney-Gcmnd \. lUiUiikij, 'ii>^'\
397.
coity, 11' it thf (iii'iiui. I
•20.
oil, uiiwavil.-iditiiirty. I
I corlilicalu tliticiil
nuiil tci tlic tlfvi-m ^,j I
v;is aclliiittoil tli;itil(.f
rt-liiiiii 111' cl;iiiiii4iiaii 1
lUtlli>slM'ii(nl; lltVj
14('. I'. .■)T:i,tlwttik
UlMill it, f.iluill;; iri.uj
litsflf : ami tliat iri,nil
111 of till- laiul liml oinel
uidi'c tliaii tliivtyiiiitl
iiR'd that thi! ik'i-.lajl
rly executed, an.l tliatl
justiees, a- imiilii'iiiS
)iio until the niiitr.
rliiiijii; 17 ('. 1'. 41.
t A. R. leaseil tin: latiilj
;vt I'i'tli parties hail in.l
it r>. went iiitii iiiissts.]
i ;i tenant t" .\. !!.. aii-lj
lu hunl until tliu fall i
13(1 (111 anil liveil tlirt«|
I sniil the fdiiiU'V It
if the latter's term ; llialj
u(piiu til line 1.. t'l liivj
. 15. saiil thuy IkhI liwJ
;iiigs" signeil. Aiiutliei
i (if A. li., stateil that E
[•3 friiiu ^h^l■ell. bis, i
iiat 1>. iiiiil her luislial
terms of it, A tliii{
, Hiiiil that her \mM
■he hinil in IS 13, uiulcrl
ather, fur live yu;\r«, aii|
tliere for several inmtlij
SV. n. : llelit. JllliuKIll
jury ill \iresuiiiiiiga\vnl
frii'iu Mareh, lS-13. .*iil
'. I'. Ilia
to have lieeiiilehvittili)!
Jln/inn-'l v. Th>t'itl
fi-iiiii insiR'ctinii a 1«>
latiiijj; to the luatttr- i
Lu The enuuul that iti
In to c iiitaiu evhlduv jlj
/.,„(•(// V. y.i.W.'"'.i
J milts ami rcciinU nt (
lilly tlostriiyeil hytliel
if the eaiise he stripiil
Icos, the stnmgestciK^
lailist tlie lesiioliiUiit. »
till be niaile against t
Ineealeil liv siiclioinulul
\l!i,r,it'l Eh<lh"U ^/""'"■j
Il7.— E. C.-'-Mo\vat.
Iiiinlor •JT&'^SVioto.l
1 distiller for tho mv^
Its iiiaiuifaetinvil hy linr
lore rightly tuM that
li.m, uiiim iiiitirt, ^'1'
liiroveil to havokopt,"
Idiig iiresumliti.'U ¥;><
i 1305
EVIDENCE.
130G
4. As to Death.
T'ffas iiroveil at tho trial in 1847, that A. was
I. .'\.j,^,„ in tlie ijriiviiice in Deouinlier, IS'27, anil
IS iiivtr afterw.irds lieard (if. A li. fa. ayaiiist
I 1 '■, i.iiids was jilaecd in the Hherilfs hands <iii
ttu'l^th July, iy;W. tested tlia •2!»th June, 1833.
I t[ iiiii' iif.V. I'l'iiught ejeetiiient against the
I ,|p,i,jsor at the .sherilV's sale, under an exe-
I tinn ai'ainst A., and atteniiitod tn recover
I niiiiii tlie""i'o"i"^ that, after •2'2 years had elajisod
I ■L^\, was last heard (if, the jircsunnition that
lieiliiliiiit die till tlie exiiiratiiin of tlie seventh
rwajataneiid: that defendant niiist sliuw
I :, ll,„ili,l nut ilie till after the seventh year ;
I {[|,,t the Jury should he directed to find
ttlu'ther he did <ir did not die within the seven
Ivcar?; Ini'i H*^^l''' ^''^ proiicr direction was that
I'attlie'i'i"' "t seven years the fact of death was
It In' iiivsiuii^''l, and not sooner, unless there was
L'onio eviileiiee atl'eeting the lu-olialiility of life
L„i,tiiiuiii"Sii long, and also that the plaintill',
liwt the ilefeiidant, must shew when A. died.
\ht\ llmia'iH'iii V. Sli-Diiii il (iL, 4 (). B. "ilO ;
W-liuSQ. B.-2<)i.
S^y^ded. Arnold v. Aii/ilju, 5 Q. B. 171, p.
11397.
15. Amii'l ti'Oia Official Appoint nunlii and Acts.
in an action against a slierilV for seizing and
diiods, it il - .. .
id them colore oliieii, without
iiii' I'liods, it is suilicient to prove that the
Heput')' sherill' seized them colore oliieii,
htoviii" the writ of execution, or giving other
Iviileuceof his hcing deputy shcritl' than that of
keral rt'iiutatiun. Holt v. Jarri.-i, Dm. 1!)0.
I Tiiuriive payment of taxes it is not necessary
'» shew that the collector was duly aiipoiiited ;
I is sullio'ieiit to shew that he acted and was
itkmiwk'ilged as such. .Sinitli v. lialford, 12
fty, 310.
' On an application for a mandamus to open a
lighway alleged to have been established bj' the
lessioiis iu ISSO, under 'lO (Ico. HI. c. ], a sur-
(eviir's report, dated "ith July, 183!), that he
1 laid nut the road, was produced from the
Uerk "i the peace, on which was an endorsement
Sotilateil, "Allowed, I. F., (.'hairnian tjtuartcr
Kssiuiis, M.D." but that report bore no date of
ling 111- entry, and there was no entry in the
limitcsiif the .inly or October sessions of any
tiler rtlerring to this report : — Held, that the
Ipiiliatiiiii must fail for want of proof that the
jep'Tt was hied or jircsented to tlie sessions next
iter its date or the road ordered to be opened.
lemhle, that if there had been a minute in tho
oceeiliiys of the next sessions that tlie re-
fcrtWM presented, and the road ordered to be
)ent'il,the eourt wuuhl presume that the sessions
ilcne all that w^as necessary to warrant such
1 entry or mumte. Seiuble, also, that a minute
|tliealhi\vaiiee of the rtijtort, omitting to show^
latthe road was ordered to be opened, would
fcthesniheieiit. In ir i.mrrenre and the Corpo-
fioiu///ie Townnhip of Thurlow, 33 Q. B. 223.
6. Otlm' Cases.
I^^Tiere A. defended as landlord in ejectment
piust a purchaser at Blierifl''8 sale of an expired
pwn lease, suld as belonging to B. by assigii-
pt :-lleld, that after proof of the excmplifica-
j tion of the lease, the judgment, fi. fa, and shcritF'a
1 deed, a notice to produce the original lease and
j assignment, without specifying iiartieulars, or
I showing tlieiu to have been in .\, s possession,
j was snliicicnt to let in secondary evidence of the
I assignment to 14. ; and that as A. shewed no
i title, nor that he had ever been in possession,
1 the same presuniptioii sliould be made in favour
of the purchaser as if he had been left to contend
i with the debtor himself. Doi- d. JJcd'iiirc v.
/Jainlx, 2 O. S. 580.
A foreign post mark on a letter, is priinfl facie
evidence of the time when the letter was mailed.
OW'dll V. I'lrrbi, M. T. 3 \ict.
The principle that the later items of an ac-
count draw tlii^ others after them, and thus save
all from the Statute of Limitations, does not
apjily when quarterly iiaymeiits, (c. g. for rent
or tuition), are made and received as for a late
s]ieeitie and inde]iendeiit ipiarter, due at the time
I of ]iaynient, unmixed with items for any earlier
I ipiarter. The presuiuiition in such a ease is,
i unless the ciutrary be sliewn to be the fact,
that the earlier ijuarters have lieen all jiaid and
i satislied. Kin'/'.-t t'ollci/i' v. Mt: Doioinll, 'i (}. 15.
31.-).
The rrovineial Statute, 1 Will. IV. e. '2(i,
I vesting in a trustee certain lands as belonging to
! the estate of tho late St. (i., has not the etl'ect
of raising .i \iresuniption of title in the partieu-
j lar lands enumerated in the scheduie, so as to
relieve his trustee froni the necessitj' of .shewing
' title in the lirst instance. Doi' d. Bahlirin v.
Stone, -) Q. B. 388.
There is no presumption th.it goods sold in
one year coiitinuc tlie property of the vendee
when afterwards found in the possession of a
third party as owner ; and the shcrill' may shew
that they belonged to such third party. K'f<.<oek
V. Jitn-U, y ('. P. !.■)«.
On an indictment against defendant, as a
citizen of the United States, for entering this
]irovince with intent to levy war against Her
Majesty : — Held, that the fact of the invaders
I coming from the United States, would be prim;!
I facie evidence of their being citizens or subjects
I thereof. /.•(■;/(;((( v. Liinrh, 2G t^ B. 208.
\ The word "signed," before the lessor's name,
j r'i'ses no presumption that the instrument is a
I copy, not the original. Berher v. Woods, Ifi C.
; I*. 20.
j In an action against defendant, who was a
i married man, for persuiding the ])laintitf to go
I through a jiretcndeil marriage ceremony, and
i afterwards to cohaliit with him : — Held, that the
presumption of innocence, that the defendant had
not boon guilty of a crime, was an answer to any
presumption of a marriage ceremony to be drawn
from the colialiitatiou proved. Wrhiht v. Skinner,
17 C. P. 317.
Remarks upon the extent to which the posses-
sion of means of knowledge furnishes evidence
of actual knowledge. Sweenei/ v. Pri'.iiilent, <lr.,
of Port Burwell Jfarhour, 17 V. P. 574. See,
also, London Election Case, 24 C P. 434.
Ejectment. In 1821 J. S., with his son S.,
and his daughter H. , (who afterwards married
M., a British subject,) came from the United
States, and settled in Canada, all being aliens.
On the 20th March, 1821, the crown granted the
'\m
1
r ",
1307
f:VIDENCE.
It
\^^\^.
m
limcl ill ((iiestidii to J. S. Xeitliur J. S. nor liis | foi'cnt course was taken
cliililit.'ii ever took the oath of allegiance, .f. S. j new trial, that it mi
died on the 17th M:'.y, 1S2S, and S. about the
()tli >i'oveiiilier, 1S4'_': Held, that under the
Alien Act of IS'JS, assented to on lOth -May,
IH'JS, .1. S. was a British suhjeet, for it might
he liresumed that he t<M)k the oath when he
got the patent. Idr v. Elliott it id., W'l (}.
B. 434.
If the shori(l"s vendee verhally agree to ac-
cept ])ayiiieiit of the redemption money for land
.sold for ta.xes personally at a distance from the
county town, in lieu of its heing made to the
treasurer foi- liini, and the owner acts on this
agreement, the other cannot afterwards, to the
owner's prejudice, require the nn ney to lie paid
for him to the trea.surer, refuse to receive it
himself when it is too late to jiay the treasurer,
an<l insist on holding the land as forfeited.
Wliere sucli an agreement was proved hy a
credible witness, l)ut there was contr.idictory
Mlibi, j
'"'itfjMim.t^ll
Held, (.11 Hint:.,,,,., I
ht he deeliinl a Min,,, J
upon the client, and a new trial was ■■xa '"'
with costs to abide the event. Ai
V. (.■iirl.i/iori', 2.S i). H. Kili,
Where a defendant desired lur attnmi.v , I
adopt a eert.iin c(Uirse in reference tu auntii
the h.ands of the sherill, which coni'-,i> \vi,\,. j
C(U'dingly pursued :- -Held, that tlii,s was n,,.' L
privilcgi'd coininimication. Witllun \- II,..,, .if
•2Chy.'344. ' "•'
The communications from a dcbtiirtu iii,
citor as to a coniiiromise, wlii<'li thu ili-W I
desired his solicitor to elt'cct witli iiis iru'Iitiiiil
and on which coiiiinunieations the solii^l
acted, and at length etl'ccted the c(iiii|ifii|||Ll
are not itrivileged, and the solicitdr's uvi.lcnj
of them is admi.ssible. Fru.scr v. .V«/A, ,■/„„/, J
Chy. 442.
Tn a case between venihirand purdiaser, wLibi
evidence as to whether what took place amounted a defendant refused to produce a certain IttttJ
to an agreement, the court, holding that the pre- i on the grounds, "that the same is aiKlcintjij
sumption in case of iloidit must be in favour of j an opinion from the said M., who wns |
fair dealing and not of forfeiture, gave the owner ; acting as my counsel aii<l solicitor iii tin' ninftef
relief. Cidiii'voii v. Hanilidrf, 14 Chy. (i(!l.
i of the purchase of the lands ami pivmiscs, mi„»i
! my title to the said lands and iircmisses. iilullijj
i cause the same is a communicatiou hotwei'iuiivl
.self and my solicitor, relative to my s.iiij titk:"l.|
j Held, to be a jirivilegeil communii'atiuii. H',;,.,,,;
: V. Jiruiis/iill, - Chy. C'hamb. 1.S7. -Tavlnr,
j rHarij.
! A defendant, one of the members ni' tlitii
i of ( J. & (.'. , when jiroving a claim in tlio iiia,«ier'j
otiice, was called on to produce "all thu Lttctj
' to or from Mr. L. (his solicitor), in ivfwin, ,
: the i|uestions inv(dved in the pniewln,,
cuwvi, in the view that the deposit, j proving the claim of (1. & C, excepting mi......
alleged by the bank, was hi wful, I I'^issed in contemplation of C. & C. pniviiij-t^
laim in the iiresent suit :" -Hclil
The customer of a bank created a mortgage
in its favour by the ileposit of title deeds. In
a suit to reali/c the security, the debtor swore
that tlic deposit had been mad'; to secure certain
futuri^ advances, all of wliich hail been paid oil';
the otlicerof the bank, on the other hand, swore
that the security was reiiuired by the bank and
given by the debtor to secure all his indebted-
ness, pa.st as well as future, and a memorandum
endorsed at the time of the deposit on the en-
velope containing the deeds was to the same
effect. The
if made as alleged hy
while if made for the purpose stated )iy the
debtor it would have been illegal, made a decree
in favour of the ba:ik with costs. Ruijiil Viuin-
niaii Bank v. ('ininnci; 15 Clij'. ()"27.
IV. l'uivii.i:(!r.ii ('oMMUsicvTioNs.
1. Altiiriii !/■■< Kiiif Si)liriloi:<.
A coinmunication made to an attorney in his
professional character is privileged, although
no .suit concerning the suliject matter be pending
or conteinplated. Jhitli-r.thii v. Jfiu/ci/ck, K. T.
2 Vict.
An attorney is an admissible witness to prove
m 111 tnc iiresent suit : -Held, that 1
bound to do so. JfuriliDinl'/ v. I'lilnnin, 1
258.
The distinction between the pniteetinii ,ifo
ded to solictors and clients, respootivdv, iiitlJ
regard to communications made in'iiiliii.' nr i
antici])atiou of litigation, pointed mit. /'..
Communications between solicitor aiij ilieai
are privileged, no matter at what tiiin- iii,iile.i|
long as they are professional ami iiiaileiiiapr
fessional character. .Macdmialil r. I'litiiuu:,
Chy. 258, not followed. J/iinnliin v. H7i,'\
P. Jl. 143.— Chy. Chamb.- Strong.
The following clause, in an alliilavitiniii
duction, was held a sulKcient statement": till
by whom he was employed to sue out a bailable ; nature of the document produccil : -"luliitifl
writ. Bi'iiiiiir v. Diirliiuj, 4 <,>. B. 24i(.
All attorney is not obliged to answer as to
the contents of deeds, &c. , placed in his hands
))}' a defendant for the purposes of his defence.
Liliich V. O'/farii, (i C. P. 250.
The defendant's counsel at the trial desired to
ask the plaintiff's attorney what his client told
him about the note sued upon when ho gave
instructions for the suit : — Held, that such evi-
dence was rightly rejected. JIarris v. McLeod
H (iL, 14 Q. B. 164.
A solicitor, when questioned as a witness with
regard to matters involving his client's interests,
should decline to answer unless directed or at
least permitted by the court ; and where a dif-
to jiroduce the documents set forth ill tlii'Sniiiil
part of the first si'hedule, on the ,;,'rniniil tluij
being communications between soliiitor aal
client, they are privileged." /'/.
A County Court judge being .serveil iviim
subpa'iia duces tecum to priiduci'ailei'il,iliiiii
attend, and, on motion for an attaehmciit. t
cused his absence on the grouinl, aniniigstntlirBi
that he obtained the deed ami I iceanie possesse
of the infonnation as an attorney i-HiM.tla
he should have attended : ami tlio rule
made absolute, but the writ nf attaihni
was directed not to issue for a month, aitl thd
only in case he should not have paiil tlio c^
of the application. Dead man v. Evvi, '.
B. 170.
l;v
—Held, I'll Hint; :
1)1! (luUlMfil ;l M;;
LL'W trial was utmh\_ |
3.
jsivuil Ik'i' attiii;,,
[ rcl't-'ri'lll-r to a \v>;;;j ■
whioli <'iiiirsu wu.. jt.j
1, tli;it this w:w iKitjl
1. \VrJl<m V. n,f„o,.\]
om a ilc'iitdi'tn lii, s(,lj.i
su, which the MuX
llV'ct witli his (.ruilitoB,!
iiic;itiniis thi! sdlioitnl
I'cotfcl tho t'lmnirumiit,!
tho solifitiir's eviilencel
Fniser v. Suilm-hui-'m
liiv:uul luirchasiT, wlitrjl
pniiliRM ;i ci'i'taiii Itttnl
:lu; same is ;iii(l ccnitiiiisl
iiiiil M., wh'i was tlwl
(1 solicitdi' ill till- iMtttfj
imds iuul inviuisi-s, m„J
s and \ireiiiissi's, mwIi,,!
iiiuiiicatinu lietwttiiinv-l
.ativoto my saiil title;-!
udinmiiiiii.'atinii. iri'-iijl
[laiuli. lIiT.— Taylcr, S,r.\
the iiK'mliiTs ni tlioilr
ig a claim in tliu masttri
proihicc "all tlitk-ttd
sdlicitiir), in R'tereiicc !)|
(I ill the \iroi'uL'(liii^ '
,. & C , exociiting mat
(if (1. &C'. iiriiviii^ tiiriij
-HcM, that t-w
(iltl V. t'liliiiiiu, 11 l.'iiyj
ecu th'J \ii'oti.'cti»ii aJit
licuts, rcs^iectivi'ly, witli
ms maitc jieiulhi.' nr i
111, \ii>iiitcil imt. /''.
Avecu solicitiii' ainlil'.e™
■ r at what time iiuilciJ
iial ami iiiailo in a pro]
hiciloiiaM i: I'litiiiaii, "
lliiiiiihiit V. ir/ii''
llll.^ Sti-niig.
in an alli'lavit mi ['
itiiciciit statement "i th(
it pi'iMluceil; -■'I'li'it-J
its set fiirth intln.-jcroni
iilc, on the gi'"iiii'l llu'j
hut ween aulicitor a*
;e.l." Ih-
ilgu heiiig serveil witU
;() jirci(lucea(loeil,ilitln«j
for an attaelimi-ul e^
.gronml, aiiimiiistiitliti
Led and hecaimqi*?ej!«j
In attorney : -H^'M. '•"
fled ; and the rule
lie writ lit' attaolme^
luc for a inoiitli, w\ M
1 not have vai'l tlio c4
Oeadmaii v, Emm,
EVIDENCE.
1310
V. Attf.mdanc'K of Wit.vksses.
I \V'V'' ''' l"^"'^"'" '" •■""' '" ""''"' tr'nil (in
irillli'-*'"'' /'"' ''"' "I'ff'^if'' }i"i'Uh illii/ir I'l
Vici. c-iu, K. -', (c. s. r. c. c. ■!.', H. 1.-..J
J.i I],!' jiiiiiic* to n xiiif iirr iiiiiih- i'iiui])ctent
j,'^,U.< im thh- own Ixhol/.]
Helil no "ronnd for setting aside a verdict for
1 iiititi's tlwt one of tlie ]ilaiiititls iiotilied to
" I |,y defendant failed to attend, as he was
'. -illeil li>r at the trial -ilefeiidant's I'oiiiisel
igjs,. ahsent. P<<nt <■! <,l. v. /'/,/„/.■, 3 C. I'.
M ilcft'ii'lni't notified faileil to attend, and a
Lriliot lii'i' eiiiifeaso was taken against liiiii, the
\,l',vileeliiiiiig to hear evidence in snppoi't of
n/iika. Ijuri'i'''. whether the evidence sliould
Lt have hceii received ; and whetiier the conrt
L" luwer under this statute to i-eview the
\,;\j„i, „f the judge at Nisi Prius. MiUunn v.
iThiilt'li'ii''''"'^ having failed to attend on no-
Itt- ll'l'l, that no attention sliomd lie given
Idisatlidavit imiicaching the eorrectiii.'ss of the
Itiiiot. J/'""'..";/ V. -l/''/7v, l-_><,>. I!..-,!.-..
iliviiiier sum for his expenses should lie teii-
x,\ til the jiarty with the notice. Sfinf v.
fcfc.r, 15Q-B- ll'i-
Ifjrtios ivsideiit out of the jurisdiction eould
llvomilielled to attend on notice. /\ifrl,hi v.
fk 10 Q. B. (iSit ; 7','/'-' V. ir;//-. .S-, 18 (}. B. 4().
kiKitiee to attend served on the '2.'>tli of (1e-
leriiii'tlie 1st of Xovemlier, was too late, not
"at least eight days. '' Voiinij v. O' l!> ilhj,
Ht.B. IT'-'.
. iiii'liiinitioii aggregate was not liound to
Lr at the trial as witness under a notice
fcil "11 their attorney under l(i Vict. e. ID,
.\Wirm/ Trilslii .■< ,,/' Schiiill Si-rl 1(1)1 Xii. .' iif
\l;n.ihlii "J Piillirirli v. Mrll,afli, 4 ('.
jelil, that under the facts state<l in tliis case,
Jihiileeaseiiiight have been taken pro confesso
Heti'iiilant's iion-aiipearance, and a verdict en- j
iliurthe plaintill', which the learned judge
ikliiieil til do. MiWhiiinfij \. Jtr(JiAii'/, ") i
EP. nil. i
had (ilitained the usual order for paynient of his
costs, liut in c(insei|Uenee of the plamtill's
neglect to comply « ith it the defendant was
oliligcd to take out a suli|i,ena, and apply to the
court for leave to serve the plaintitl' out of the
jurisdiction ; the court gave defendant such leave,
and directed the plaintitl' to pay the costs of the
motion. J'f'l V. Kliii/siiiill, '2 V\iy. 27-.
Where, between the time of obtaining an oi'der
for service out of the jurisdiction and the service,
the name of a town (liefore the mayor of wjiieh
the aliidavit of service was diiecled to be made)
had been changed, a certificate of the town clerk
sealed with the corporate seal of the town, under
its new name, was received as procif nf the fact
of such change having taken place, /'"l/i/i v.
<:i(li„„iu •2('hy. (I'J.S.
The court has authority to grant an order f<ir
a subpieiia to issue to Lower Can.ida, though the
evidence of the propiised witness is not intended
to be used at the hearing of the cause. Mr.
Kt'i-rlih V. Moii'iin/iif rii, 1 Cliy. ( 'haiiib. •JlT). —
Spragge.
A ilffi ikIiiiiI asking for an order I'm- ,a subiHcna
to e.xamini' a ///(/(/('///' resident in Lower ( 'anada,
need not shew that there is no cause of action
for the same matter pending in I^ower < 'anada.
Ihihi V. li'dli'ii.-niii, 1 ('liy. Chainb. I'Tl. \'an-
Koiighnet.
Before a subpieiia will be issued to tiie yin-
vince of <^>uebee, it is necessary to shew that no
suit is pending in that province for the .same
cause of action. Mfl'lnrsmt v. Mi-I'liirsnn, H
Chy. Chamb. oS. — Taylor, Strrifiirii.
A ])laintiff desirous of obtaining tlu- evidence
of a defendant who resided out of the jurisdic-
tion and could not be served liersonally, paid a
sutiieieiit sum to the defendant'?- solicitor for
conduct money, and moved for substitutional
service of a subjio'iia on tlie solicitor, and that if
default was maile in attending, the bill might
be taken jiro confesso. 'J'he apiilication wis
refused with costs. Sii'fiiii v. Liimli/, 4 C'liy.
C'hanib. X\. — Taylor, h'l/inr.
2. Pmci'.ss.
(a) Fur Si'rriri- out of Ontariu.
pre, whether s. 4 of (A .S. t'. c. T'.l, autlio-
B till' issue (if a subpiena to Lower t 'anada,
■estiia [larty to the suit. Seiiible, not a.s
I, r. I', e. W'l, s. l(i, apparently contemplates
limissiiin in such case, Yvuini v. < >' Ri Uhi, .
iiu;-j. But ' j
Jill, that liiiikiiig at the object of the act,
Itlie iimiiriety of its application to the ex- '
ktiou of parties, the term "witness" in sec. \
Ml be used in its widest sense, and should !
p parties td the cause as well as witnesses !
i onliuary sense of the word. Moffatt v. j
li", 9 L J. N. S. 159. — Spragge, on appeal i
iHolmested, Rifirn\ '
t plaiiitiflf in a hill of discovery was out of
jtrisdictioii, aud defeudant haviug answered
(b) (tthl'l- ClM:-!.
It is not necessary that there should be tiftecu
davK between the teste and return of a subpiena
on a criminal inform.itioii, where the venue is
laid in the homo district. Jiniiun v. C'c/m/.v, K.
T. 3 Vict.
I?, having been served at Niagara with a sub-
l>iena tested '2'2ni\ .May, issued by the clerk of
Assi/e, to attend on the (itli of tlie same month,
at the Assizes then sitting at Toronto: - Hehl,
1. That the subpiena was invalid on its face ;
and, '2. That a subpiena issued by the court of
Nisi I'rius, which is of local jurisdiction, is not
binding out of the county where such court is
then sitting. (Ir<inthiiiii v. lii.tliitj}^ I (,'. 1'. 237.
An ex parte onlcr under rule 31 T. T. , I8")(i,
will be granted in the lirst instance, for a sub-
piena to the registrar of a surrogate court for the
production of an original will, upon atlidavit that
said will is necessary to establish the case of a
party applying, and that no notice h.is been
given of his nitention to use tho probate or
letters of administration cum test, annex, of
same, and shewing good reason for not having
■ 1 ■■[
. li
■. i
' \'i'
. \ :\.
\
1 'i
, ■ ,
:M:-
1311 EVIDENCE.
1312
given or giving such notice. ShuhUn v. .Smith,
2 L. .1. 23:}.— t'. L. Ghamh.— H.'vgarty.
Held, that service of suhim-n.as made by one of
the (lefeuiUmta could not l)e allowed on taxation,
unless such defendant held a warrant or written
authority from th(! sherill' to act as his h.aililT on
the (jeeasion. J/iiin ct ii.c. v. La-<liir <l ill., 24
Q. V>. 3,-)7.
A suhjio'ua should bo under the seal of the
court, and if under that of a deimty registrar,
the witness is not Ixiuiul to o1)ey it. Wiiilili.ll v.
Mi-iliiilii, 2C'iiy. C'liamb. 44."). — T.aylor, Sirretari/.
A sul)i)iena sho\ild not bo dated prior to the
time at w liieh the party taking out such sub-
pcena, is entitled to examine the party or witness
served. Mi'Miimn/ v. (Iruinl Triink Jtiiiliva /
Co., 3 Chy. Chanil).' 130.— Mowat.
See Y. 4, infra.
3. F<'< of ir(7«('.ss(.s.
(a) At Trials or Enquiries.
Remble, that a returning officer whose conduct
has l)oen impeached is not entitled to his ex-
l)enscs as a witness before a committee of the
liouse of assend)ly. Bliirk-lnck v. MrMarliii,
Tay. 320.
Notice by plaintiff to revise taxation. As
to the sums paid to and expended by wit-
nesses, dofeudant being iiound to a strict com-
pliance witli the l().")tii rule of T. T. 20 Vict.,
and the master having authority to make all
such in(juiries as he migiit deem necessary to
satisfy himself, the court refused to give any
directions as to such iuijuiries. //((//; (/ u.r. v.
La^lurit III., 24 (^ B. 3.57.
All witnesses should be paid before taxation,
and only actual disl)ursements proved are tax-
able, not mere engagements to pay. JO.
I'laintifT having attended under defendant's
notice without being paid, which she w.is not
bound to do, the court refused to direct her ex-
])enses to be deducted from defendant's costs. Hi.
A witness appearing upon an order granted Ijy
the judge uuiter sec. 10, sub-s. 4, of the Insol-
vent Act of IS()4, is not bound to be sworn uiitil
his expenses are paid. Wnrtliiinitoii v. 'I'm/lor,
10 L. J. .304.— C. ('.--Logic.
The insolvent who appears by virtue of the
sanio order, is not entitled to claim his expenses
before being sworn, and he may be examined be-
fore as well as at or after the meeting mentioned
in sub-s. 1 of s. 10. Jh.
A public officer in charge of documents for
which he is respfuisible, and attending as a wit-
ness in his public cap.aeity, and in relation to
matters coimectod with his office, will be allowed
professional witness fees of .*4 a day. fit re.
Xclwii, '2 Chy. Chamb. 252.
See Dcadman v. Emn, 27 Q. B. 17G, p. 1312.
4. Jicmc'ilj/for Xun-atlendance,
See V. 2, p. 1309.
(a) Attachment.
An attachment for not obeying a subpn?na was
refused against a witness who resided twenty-
five miles from the assize town, and IluI I,,.,,
subpci'Uaed only the day before tlic tii;il. /•„■..
rliiiiii d. Tlioiiiji'i'iii V. I'liliiiiiii, M. X. (i Will IV
AVhen a witness is subpo'uacd to attwiil ,,], ,
particular day, and not from day to day, hecan.
not 1)0 attached if ho were pre-iont niitlmt ilav
but went away afterwards. /I'uhirill, y j'„„'.)j
3 Q. B. 128.— P. C— Hagcrniui. ' ' '
The court in banc, cannot attach a Hitii(s<
disobeyinga subpiena issued at N'isi I'cins livtli,
clerk of Assize. Hiiinui v, Ki rr, 3 (,). j; •_)4-
QuaTO, can the court at \isi i'l-Jns puni^], ,
witness for contemjit of its authority in iY\>i,]k\.
ing a subpiena. J li.
AVhero the affidavit of service ilid nut stiito that
the original suVipiena had been shewn tu tliu Hit-
ness : — Held, that attaciniicnt would iint ]■..
though the witness attended several days liffilrj
the trial, and was ]>aid. Tln' Ci.riini-.iihm ..i
East Xixiioiirl v. ('misirill (I III., -2 1' |; •;>•, ' i
P. C— Burns.
A County Court judge being servi.l with a j
subpoena duces tecum to jirodiice a deed, did not I
attend; ami on motion for au attaclinieiit tx-l
cused his absence on the ground of iiii|iiirt;iiit|
private business, urging also that lir id,tiditalj
the deed and l)cconio possessed of tlie nilnriii,!-
tion as an attorney ; that he had a lien nii the I
deed, and that lie was entitled to witnc-s fiTSMl
an attorney :--Helil, that he was not so eiititlnl,]
and should have attended ; and the nili' n;a|
made absolute. Di'dilinnii v. En; n, 27 {}. \',, \',\\
Where a party, ]daintiH' in a cause, liiid luml
served with a subpiena, dated before lie w.ijj
regularly lial>le to exaiuinati.m, a niotifiii tol
commit him or dismiss liis bill was refiisi'd, Kiitl
without costs. .)[r Mil mill v. Tin Ciuiml y',w„ij
li. Co., 3 Chy. Chamb. 130.- Mowat.
(b) Other CiUix.
On an application that a witness ho ordiivd Mi
attend l)eforo a master or examiner ;it hi< nuaf
expense, the evidence of his default slioidd >l]i\i
that he was duly subinenaed ; the ceitilicafc i
the master or examiner that evidenoe nf tin ^r^
vice of the subpcena had been produced liuf.i:
him, will not be s\ilticient. W'nihll.' v, .'/'■'oii'i/|
2 Chy. Chamb. 4-t2.-- Tayhu', Sicnturii.
The engagements of a witness, wlm w.i,s
senator of tlio Doiniiucm ami a nicniliur "i tli^
executive council, at his duties at ( Ittawa, wli
the senate was in session, was dccincil sum
cient excuse for not procuring his attundaiiijej
and good grounds for putting (df the li(':iriii|
AVc'.i v. Attonii'ii-dciiiriil, 2 Cliy. Cliaiid). ItSfij
— Taylor, Secretdri/.
A witness or a party is not obliged tu atteal
and give evidence, or submit to cri)ss-e.\aniiiii
tion, except he be tluly notified or .sulipiinaw
even if he happen to bo present v lien the
ceeilings are going on. AMiere, tlierefwe, ai'^H
to a suit who had made an atiidavit was prtsei
in the master's office, and the scdioitor fur tl|
opposite party proposed to cros.s-examiiio
on his affidavit, and ho refused to aihwtr,
motion ex parte to compel him tn iittond
be examined was refused. Ji'ohin.'i v. C(IM>»,|
Chy. Chamb. 343. —Taylor, Secretai-i).
1312 ■ 1313
EVIDENCE.
UU
II, ;iuil hail ln't-n
tin; trial, F'l'if-
M.T. i;\ViU.lV.
;il to .'vttuiiil Mil a
ny til iliiy, lieo.w-
■scut im tliiit ilay,
fiiiiirillf V. I'uiriH,
, llttill'll a witiwH
t Nisi I'rina livthe
,-/•/•, :i (.>. 11 247.
isi Vrins pmiisli a
.tluirity in ilUnlity-
cciliiliiiitstiitutliat
usIkwii tu tlic wit-
;iit wmilil nut li'i,
sevunU iliiYs liciiire ]
Till' Ciiriinniii'iii ■>!"
I III.. -2 1'. i;. ;isr..-j
xmi servi'il with a I
Klui'e a ilceil, i\iiliwt|
1- :m iittai'hmeiit ix-
tfi'iiuiul of impiirt;intl
so that ln' iihtiiintdj
ossoil of the iufiinni-j
hf hail a lie" "^ tliel
tleil to witness IcMMJ
10 was not so eiititltil,!
,1 ; anil the rule was]
V. /;<n'H,'27Q.15-'"
' in a cause, hml hnnl
ilateil hefore he w;al
iuatiou, a nmtii'ii tal
, ,,iU was ivtiisiM, Initl
,, V. Til' <:,-<n,'IT/,i.h^
t'O.- Mowat.
,C('.<i>'.
[i witness he I iraereiltd
..•xannner at lii< ii»al
,is ilefault shouhl slicW
lacil ; the eevtiliak oO
^;it cviileneeiiftliescr^
Iheen in'oilueeil het"
ir,,,/,//.' V. .w.'Im«';;|
i-l,,v, Sii-riliii-ij.
witness, who was I
anil a menihev nt tW
lutiesatttttawa wlu-B-
,,n, was ileeuieil sHlll
,u,iuy his attdulaiKt
littin^ olVthehoannl
o Obv. Chamli.
,snotohlij;eiUiiattea
Imit to eross-ex,«iiii^
Lotitieil or s>iHw'i'^'«
[present when the V«
Ihere, therefore, a r»rt
lnatUilavitwasF*«
ll the solicitor tor tl
1 to eroas-examiiw
vefnseil to an>wir
U hini to attenil i
Hohiii.^ V, till-*-'".
fcr, .S'n'i-eM'V/.
To coHH"-'' *'"^ attenilaiicc of- a witness, or a
mrtv whom it is sought to examine', he must lie
lulv siihiiienaeil or served witii an apiiointment
i rlit iliivs iirevioua to an examination. MiMiir-
'■'',v. fhi- (ininil Tnnik R. Co., 8 (Jliy. Chamb.
13(),„Mowat.
The term "witness," in C. S. C. c. 70, a. 4,
iiK'hiilc'S jiartiesto the cause, as well as witnesses
in the orilinary sense of tlie word. Mufhift v.
I'niitii'i; t> !'■ H- 38. — Spragjje, on appeal from
Holinedteil, h'i'/iire.
(e) Cmh-r It! Vict. r. Hi, (('. S. T. C. c. ,;,.'. )
AVlien a party to a suit calls the opposite party,
he is not necessarily conclmled hy liis answers.
Miiir V. C'»/// <■(' al., 10 (,>. B. 321.
Iii^
AVliere in an action for goods .sold and ile-
livered, plaintitl' made out a prima facie case
through his clerk, who proved a delivery of the
goods ; and the promise to pay on reiiuest imjilied
therefrom was repelled hy defendant, who stated
a special contniet varying from that implied : —
Held, that the plaintill' w.as admissible as a wit-
Kxamiiiation of a defendant after answer, under ness to re[)ly to the new case set U|i by defendant,
Order 13S, is an examination of witnesses within ^ and Senible, he could not be excluded as a wit-
ness by reason of his presence in court during
tlio examination of his clerk. MrFaiiaiU' v.
Martin. 3 (J. P. (i4.
A plaintiff or defendant called as a witness
under 1(! \'iet. c. HI, is not entitled to any other
notice or to be subpienaed dill'erently from any
other witness. Xnxh v. lUixh, "> ('. I'. 300.
this Act. II'. j
•^iiphcatiiiii for an order under s. 4 of the Act \
is iiroiicrly made to the referee in chambers, lb. \
VI. CoMl'KTKNI'y OK WiTNKSSKS.
1. Pitrtien to Suits or Prorcciliiuj.'i.
( )n the trial of a contested nninicipal electi<m :
\B>I I' I"^"''' ''■ ^'^> "" ''"'"/""'il!/ ''.'/ rffuon of — Held, that the evidence of the defendant and
(riiiifijr iiiti'ri'it wn.s itlioH-ilii'il ; hut pnrtieK to the \ of the returning otlicer, was proj)erly rejected.
i!ii/ ii-ir (M7;(V.i.s/// I'j'ccjifi'd. ]
[fl// 14 lO I'l Virf. I'. GO, thcij wi ri' ri'wlrrcil
mUmihk at witnesnes on (heir own hekalf.]
V]nV) Viii. c. 10, fhi< wnx ri'pmJiil, ami thinj
infriWuvril to he ralliil onhj as u'itiwxxen for thi'
mpiite pitrtii. Thifi act ('vf.s iiimrporntiif in C.
U-.C.r.V..]
[fii/W Vict, i: l-J, <>., till' Inir irns oi/iiiii rhatxjfil,
mAlhiH ui'i' ""'t' rottipeti'tit ((■('(hc.iw.< od their own
Wa'/.j
(a) Diforr JJ Vii-t. r. 76.
Tlie clerk of the commissioners of a turnpike
tnist, empowered to sue for tolls under 3 Vict.
c. 3ii. is not a competent witness in the action.
tiiwuiiHi/'i V. UluiiKiip I't ah, 1 Q. B. 3()4.
lii'ijinii c.r nl. ^irhi'-ioii v. DoiiojihiH', ]it Q. B.
4r)4 ; Riifiiiii it rcl. Mrdreijorx. Kir, 7 L. J. C7.
— C. Ij. Chamb. — Draper.
The atlldavit of a relator in support of objec-
tions to au election may be sulHcient to obtain
> the writ, but he is incompetent as a witness
under 1(> Vict. c. 19, s. 1 ; and therefore to
establish the case at the trial, some other evi-
dence is reiinired. Ni'iiimi er ref. CiirroU v.
liii-kirith I't a I., 1 P. \\. 1'78.— C. L. Chamb.—
j Kobinson.
Action against three members of a municipal
corporation : — ?telil, that one defend.ant who had
I sutfered judgment by ilefault could not be called
on behalf of the otliers. }[inrii-iiinJilii of Ea^t
_yi.<.iouri V. J/or-ii'iiiiui, 18 Q. B. 31. See, also,
: Kirr v. Ihnfonl H al., 17 Q. B. 158.
In au .action on a bond against principal and
One ilufemlant having deposed to a fact, which ; sureties for the due performance by the principal
il'liroveil hy proper testimony would have tend
eil to defeat the suit .against all the ilefendants :
%'iTe, whether his evidence is admissible on
khall of his co-defendants. ,Siin2i.<on v. Smyth,
I E. .*: A. 9.
<(• /.■) Vict.
(!(>.
of his duties as agent to the plaintiil's, .alleging
the non-payment of moneys received : — -Held,
that the ])rincipal was clearly a competent wit-
ness for the plaintiffs to prove the .amount of his
def.alcation ; and that on the authority of Lamb
V. Ward, 18 Q. B. 304, his evidence for defen-
dants on other points was rightly rejected. 77/fl
Miiliiiit Fin- fii.s. Co. ol' J'ri-icutt v. Palmer el al.,
•20 Q. B. 441.
(h) Cii'lir 14
Held, that hy the 14 & 13 Vict. c. (!(), the parties
U. a suit are admissible on their own behalf, i ,„ ,i„„.^, t,,^ ^^^^^^^^ ^.^^ t,,^ „„i g^i.scribing
B -WKUM- / r.»/M^ 9 Q B. .^2, dissentin^^ to a deed essenti.al to his defence :-
I " u','\ (,'"""' ' . '^- "'^ ' '" " ""'' '* ''■''' Hchl, that proof of the tenant's signature was not
I ^'" '''■•>' "'«y ^^^"'■'^ ""*• ; thereby rendered admissible to p?ove the deed.
Soticehad heeu given on a previous day of Hagarty, .1., diss. Clark v. Sfereiiwn, 23 Q. B,
tte Assizes, that parties to the record wishing ; 025.
jtogivecviileiiceiM. it not remain in cimrt during j At the hearing of the cause evidence is not
admissible by ime defendant ag.ainst another.
77i<' Attormii-deneral v. The Toronto Street li.
Co., 15Chy.'l87.
-C.
tlie sxamination of the other witnesses ; the
JBilge rejected the evidence of a defendant for
ilisoWdieuce of such notice :— Held, that he had
1 iotliurity to do so. Winter v. Mi.rer, 10 Q. B.
But it Wiis held otherwise in Strachun v.
\Jm, 3 C. P. 253, and in Marfarlane v. Martin,
[See now 34 Viet. c. 12, s. 9,0.]
In an action for dower by husband and wife,
I -Held, that the wife was a competent witness.
|<.*J»w,u( lu;. V. Slroruj, 10 Q. B. 591.
83
See also, .S7. John v. Hisertf, 5 L. J. 118.-
C— Campbell.
2. Hmhaml and Wife.
[Bij the preM'nt law, 36 Viet. c. 10, ()., the hus-
bands and, loices of the partit.s to any Huit, Ac,
§
IP
1315
EVIDENCE.
1316
(lilt/ of /III' /n'r-ioiiK ill ir/iiM- lii/iiilf an;/ .siirli .tiii/
mill/ III' liriiilijlil lit' ili-j'iiii/ii/, s/iii//, i:rci'/il iin hi tlinl
Alt i-.rnjitiil, III- riiiii/ii/rii/ mill riinijH'lliililv to i/'in-
eriili'iiri' ml hi'liillf iif i-itliir or mil/ of /hi' //iirliis
/i) .sii'iil ■'<iii/, il'C. till/ nil liiisliiiml III- ii'i/'i' sliiill III'
ri/in/ii lliililr III il'isrliisi' mil/ I'liiniiiiiiiinillnii iiiiiili'
III/ I'ltliir to llir iillii r iliiriiii/ tin- imirriiiiji- ; iiml iin
Inixlimiil III' ii'ij'i- fliall In- roiiipf/i'iit or roiniiillnlili-
til i/iri' irii/rnri' j'lir or iii/niimt tin' ntlnr in niii/ /irn-
cceilin;/ iiistilittiil in cunxiqiicin:!' of iiiliilli-ri/.]
For decisions under the previoua law and stat-
utes, see, Liiiiltiii/ V. Till' liinih iif Miinl mil, l.S
C'liy. (13 ; I'ifi rhiiruiii/li \. ('mii/i'i; I Cliy. Cliaiiil).
35; ]'iiiiXiiriiimi it iix. v. //miiillnii, '2ri (,). 15. 14!l;
Sl(iri'i/y. Vi'iiili I'f ii,i\, Aiiilii'unii il II.I-. v. WnlL-ir,
Thiirh-inni it ii.r. v. A.i/cin it al., 22 C'.. 1'. I (14;
'ruins it ii.r. V. Till' ('iirjtoriition iif till- Tun'ii-ililp
of Whithi), 32 Q. H. 24!t.
When a counsel upon stating to tlic jurv tl
facts lie hiinsell' could i)rove, was reiniiiil(i,| i,\.,|"
judge that he could not act hotli as iin ailviVt!
and a witness, and then ininu'diatciv sif ,i ,'
ceased to act as counsel, an<l i,'ave cxiclnu.,, ,
the cause, the court would not sat aside tin. i.'
diet, ('innvron v. For.ii/tli H «/. , \ {^ ]j |ui|^''
(1)) Unili'i- 1.' Vict r. 711, mill ir, r;,./ ,• ii, i,,
S. r. C.i:.l.:) ' '' ■
\Tlii'si ilirision.i, i-liicjli/tnrninij I'l'im lli, i'X,ri „;
till /iriiri-iii lii'j'iiri' iiU iitiuni'il, m-i imir ,Ju„l,'f,. ',
it in niijllrii'iit III ri'j'ir til fill' (■((.■.(■.,■. I '
See Dill' d. Mr/hnii II v. /,'iiilriii/ 7 O 1! wi
Wliiti'V. W'l/rott, 1 ('. P. 320; JAov,/-.,-;/ /.■,;„;„"/ ;
Co. V. .)riirni'!/, 1 C. l>. 2!) ; Hitrhcd' v, r, '„.
/•/7c, ],") (,). Ii. loT ; Jlonnfi- v. Mu'lirml/, i} (•
r. ."(04; T/ir Miinii-i/iiiliii/ ii/' K;i„iy_ /fnni,,', i-
(,». 15. 253; McMnllinx. M',i,-il„ii\ I'.M,). l'. ,^|Vj' .
I'i'i/iiiii ('.'• vil. MiG'ri'i/iir v. Kfr, "
til;
In an action of dower liy husband and wife
— Held, that the wife was a competent witness
Ciiiiiiiini it n.r. V. Stnuii/, 10 Q. 15. 5',)1.
Held, that under 35 Vict. c. !(!, s. I, (>., a ! •^^"^'';"''/- f'''^''' '!|/) •'• -^'J,- iMii^^.n x.
married woman cm maintain an action for lier : iC'"'"' ' V ,; ' ,. //''■'' '.'' ""'"• ''^''l'-
wages earneil whilst livin" with lier hushand, \-^f'' '/-\r\'.'lV' fV ' '•' ^'''""''" ^'- '''"'">',
who as agent for the defcirdants employed her ; ; 'J "■-_'•' )■ } ' •^^- '• '"''■'""" )'■ J^l''"", -> L. .1. X.
an.l that her hushand is a competent Witness on : ^: "'" = /'"'"'■/■,; '^'":'-'""'' '/) T' ''• *"' ' ''''"
tiir/ioriitiiin uj linrli'ii/li v. //nlis, 27 0.1', 'o.
Coiiti'.i V. Ki'lti/, 27 (^ I!. 284 ; (Jnohl v, SiiM,'y.\
(J. r. 427 ; Mr/inniilil V. Jiirris, 5 (.'hv, .I'lis.
Proctor V. ilrnnt, !) Chy. 2(1 ; \Vnn;n v. 'Aii//.,V
RiiM V. Tm/liir, !) (Jhy. 59; Citii ll,i„t \.' M,'.
Conki'!/, 12 Chy. 385; I'mnuifln \. M;/,-!,,!!^ \^^
C!hy. (i(i5 ; Scott v. Ilnnti r, 14 Chy. ;{7(i; //„„,'„,(.
V. Mcllroi/, 18 Chy. 20!t ; Siimli'rsni, \. Burd.ii'
ipi
her behalf. MrCmnli/ \. Tmr.'lAV. \\ 101.
3. Partii:i [ntiri-xtiil.
[Bji 1 ' Vivt. c. '!l), all inciiiii/iitinci/ / roiii intircst
ira-i aliolisliiil. Pruriilcil that tlir act nlioiilil not
rcnilcr conijiiti'iit till' piirtic.i to the .suit, <(.•(•,, "or
(1)11/ /iirnon in n'hii.ii' inuniiTnili' or iniliridiinl hilialf \(iii aii/ical,) IS (.'hy. 417.
nni/ action initij hi- hruiiiihl or ili-fiiidi'il, litlirr ■
irhollij or in /lart " 'J'hr /.} 'I' /•' i'ict. c. Ud, re-
jH'iili'il thi-1 jirori.in, but that Act teas ri-pcali'il, l^A Oihir ('ani.<i
anil the prorisi) ri'-i'iiacti-il, hi/ 111 Vict. c.l9, irhich
ia.'<t Act mis consoliiliiti'il in the. C. S. U. (J. c. 8..\]
[/>// the .loVict. c. l.l, <>., the 2irori.-<ions of the
last Act are rcpe.ali'il, snhject to the cjcceptions in
sec. J; anil "no per.ion ojlereil as n idtiiess shall
hereafter lie exclnileil hi/ reason if incapacity, from
crime or interest, from i/irimj edilence."]
(a) Bifon- tJ Vict. c. 70.
[Tt is thoiii/ht nnneci'.isiiri/ to ilo wore than refer
to the.ie ilecisions, iis thei/ ilepellit iipim the coininon
lair, irhich the siihseipient slittiites hiire enlireli/
chaiii/eil.]
See Mofatt v. Loiicl.-s, Tay. 305 ; /Imd- of U.
C. V. Wiiliner, 2 (». S. 222; Boijce v. Park; 5 ().
S. 50S ; /)ije d. Sjirini/.tteil v. //o/ikins, 5 (>. S.
570; ll'(7.w/^ V. Sterens, 5 (). S. 321; Hall \:
Shannon, E. T. '2\\ct. It. & H. Dig. p. 452 ; JSnf-
falo liankx. Trnscntt, M. T. 2 \'ict. It. & H. Dig.
p. 452 ; Itoij V. J/innllton, (i (». S. 285; Jiiink of
B. X. A. V, Ilolinmi, 1 Q. 15. 30!» ; Hank of
Michii/an V. (h-aii, 1 Q. H. 422 ; liohinson v.
Itaiielje, 4 Q. ]5. 28!» ; Doei\. Park v. J/emlerson,
7 g. K 182.
If a witness be objected to as interested, and
on voir dire deines a;iy interest, other witnesses
may be called to prove that he is incompetent.
Thrasher v. Tullurh, 5 O. S. 32(5.
If a witness be called for the plaintiff who is in-
competent from 'itercst, and be afterwards called
for the defendant, the incompetency is cured.
JJall V. Shannon, E. T. 2 Vict.
As to competency of witnesses in eioetinent,
See Doe d. Mason v. /{allnnl, 1 (,•. 15. 2 ; /fa'
d. Vernon v. Wethirall, 5 (,). 15. 342 ; Dm d
McDonell X. Rattra,/, 7 (,»). 15. 321 ; /)iiii,l„.< y,
Johnston et III., 24 Q. 15. 547 ; /Inini/ v. A,,*,',
27 y. 15. 509; Bminerniun v. J)eicsijii et nl re
P. 257.
In an action on a bond the attm-iicy fnrtlie
plaintirt', who was the subscribing witness t(i the
bond, was called to i>rove iis cxcnitiiin. His
evidence was objected to by the ilcfiMnlaiit mu
the ground that lie had bccoiui' aiiswenililc fur
costs. ^ To (ibviate this ditliculty the ilffumlant ;
paid into court a sutiicient sum to onvur tlic j
costs, and was then aUowed to be cxaminoil
Meld, that the evidence of the attunuy after i
paying the money into court was in-upurly re-
ceived. CuiHlHer it al. V. 7'A/7yni/./, 5 (,». li.';)2S. j
Unilcr the Imperial Act, 8 k 9 \'ict. c. !W, s.
89, the surveyor of customs, not beiui,' the (larty j
either " seizing or informing," is nut oiititk'il to 1
a share of the penalty. He, tlu'refcirc, Gi'iiiotl
be rejected as an inconipetcut witness iiii"ii a |
case of information ,/or,(( pi null;/, for liarlmiiriiy
snniggled goods. Atliirneij-O'ini nil v. ll'<''/Mi/'|i
5 Q. B. 485.
It is too late to object to the ciiniiii'toin'y nf il
witness as being interesteil after his rxarainatiiin,!
upon grounds known before be eutert'd tlic'nai
Poirell V. Jarri.i, 5 Q. 15. 489.
The solicitor of the husliand, being city iimr-j
der, was held not to be disqualified to take ;w a 1
13U
i til tlie iurytk.
u't-iiiiiiiloilliy thi-
ll us an iiclviniit,.
liiitcly sat iluwii,
>j;avo cviiliiiicc in
sat aside tlif voi-
/., Hi. \i. ISll.
h;/ iiiuiii till i'ffti-l„i
■I' null' (I'wd/c'i , III!./
'-■■ 1
Itnni, 7 l,>. 1'.. S21;
M it lUiiiil'ii raiiiiili-ii
It'lli'llCnck V. fVr,,,.
.'. Mii'Uririll, ;i c.
A';/)'/ V. //»i//m.v, i;
.v/.-(/; HM,>. li. ."i(l(;;
/\"/-, 7 1.. .1, i;;;
•J-JO : lIiilvh,Mm V.
V. ii';/..<„», ISC V.
/' Cmiiiild V. /'ii»uii,
x.EIIU.ti, -1 1,..I.N.
IS ('. I'. :V21; 7'^.-
//,./.. s •27g.u. ;2;
; (i'i»</i/ V. SiiM, lit
Jiin-is, ") Cliy. .'iiiS;
; ll'driv/i V. 7'ii;;/'.r,
); C'llil Ihiiitw M-
iDiiitlii V. Mih-hill. in
I4('liy. ;{7t); ll'iiinfk
Smi'li ('.«-'» V. Biirihii^
c'ssos in ejectment,
•,/, 1 (.». H. 'J ; /V
). 15. -M-l ; />« a,
'.. S-21 ; P"/"'"< V,
; lli'tlllll V. /'(ict'ir,
PiirnDU (•' I''.. I"!.'.
the attdi-ney fnrtlie
i'il>ing witness tutk
its exe''ution. His
1)Y tlie ilefemlant m
ecdinr answeralilt t'nr
liciiUy the (letViuliiiit
nit Slim to eevcr tlit
;1 to he examini'il;-
the attm-ncy iW'ter ■
urt was inMiiurly re
ThU,uil<K .") (.>. li. 3'-8.
8 & !) ^'i<■t. 0. M. 8.
not heinytheiartyl
,',. " is not'entitWtoj
le', therefore, ca:mot
Itent witness wyn^
L«ii////, t'orli;nl«'iinii3]
\ll-t!,ii' ral V. il''i
, the eomiH'toiioy "i »1
lifter his '■xamimitinn.l
be entered the box.]
189.
Lul,1)eingeityrecor-!
Lualific-ltotakeMU
1317
EVIDENCE.
ni«
iiristratc the oxiiininatii)ii (if a married woiiiiiii
lui'the' fonveyiincu of Ikt huiil. .^[>ni«gi', C,
aiiliit:uite. Koiii'iiK" V. rni-M'i; 17 C'liy. Ml.
Ma'istrates iuteri'sted in tlu? transactions, aie
t toiiilit'tcnt to take the exaniination of a nuir
,,l wouiiiu for the eonveyaiico of her land. ///.
I'lie .solii'itor of tlio hiisUaud is not as such
,lisiiii,ililii''l. / ''•
\ ilevise hy a testator, who died in ISIJO, to a
iiuimt'il "■'""•'"• "1""^^' l"i«''aiid was oniMif the
tivi.witnesse.s to the exei'iition to tlie will :
H .111 void iiiitM itlistandinj^ theiirovisionsof the
VviiUwe Aet of I.S.-.l.', (K; Viet. e. 1<>.) Cnnr-
4. Ri'lliiioiis Btl'iif.
On a trial for murder an Indi in witness was
offercil, and on his oxaminition hy the judgo it]
ap'Wirtil that lie was not a Christian, and had
ii'i'km'wledLte of any eeremony in use among his
tril,, '• 'ay a person to siieak the truth. It
ji, ., however, that he hail a full sense (if 1
' ,„jiii'atiou to do so, and that he and his triho .
iKliivcif in a future state, and in a Suiirume
Bfiu'Mvho ereated all things, and in a future
stati'if rewards or jiunishnient aeeording to their !
ciiiiiluctin this life. He was then sworn in the
onliiiaiy way : Held, that his evideueewas ad-
missible. Jx'n/nKi V. P(i/i-Mii/i-(i(t;l, ^O (■). U. l!t.').
,■>. Otliir ('(t-sc.^. I
I
Awrsiin not heing a lieonsed .surveyor is a
ciiiiiiKitunt witness on a (juestion of lioundary.
Pi,«o'v. CaiiipMI, IHQ. V>. 10!). |
All ciitiitahle jilea must ho jiroved by such i
Titiies.sfS as a eimrt of law can receive. Pirlci/ 1
\.L.mtnt(il., 18 g. 15. 42!). ]
Where ,it the hearing the comiictcney of a wit-
ntsswas iilijeeted to, and the court received the
eriilonce siiiijeet to the (dijection, hut afterwards
helil tile witness incompetent, a refereneo was '■
Jirecttil as to the material points to w hieli his
eiiilenee applied, and further directions were
KsiTved. Liiiil-<iti/ V. Thill-iihiif'Miiiitnal, \'i
thy. (i3. ' j
VII. EX.V.MIN.VTION INDKl; Co.MMlSSIO.N .
\. Ajiplirntldii j'lii; mill Ixxite nf Vitiiiiiiixsuni.
Tlieoiuut will not, under the provision of the
I prmiiioial statute for issuing commissions to
esamiiie witnesses ahout to leave the pi'ovincc, '
1 orfcr such conimissiou heforo dechiratimi tiled.
I kmdm V. Phiijlcr, Tay. 37. ;
Tlie imitiou for a connnission must he sup-
I ported liy affidavit. MrXuir v. Sliihlmi, Tay. 4") 1.
A party may have a couimission upon his
uiiilertiikiiig not to aet under it until after issue
[joined Duinjidl v. Mmitlh; 1 Q. B. 'I'u.
An order for the examination of ^^■itucsse8 out
I of tlie jurisdiction, will not be made before issue
I jouied, nieidy to expedite proceedings. Allan
|t, .hi(/mM, P. K. 32.
It is not imperative upon the court to grant a
I commission to examine witnesses out of their
jurisdiction ; and where a suit was pending in
Lower Canada for a claim arising there, and tlio
idaiiitHl' bavin;; fmind one of the defendants
lierc served him with ])roecss, and desired the
cvideneeof a witness in .Montreal, tlieap[di(atiiiii
was refused. Mnir \. Ami' r-<tiii, 11 (,>. I!. KiO.
A m.ateri.al witness for plaiutiH' st.iti^d during
the Assizes that he w.as oliliged to go to the
Stateson husiness ; and a commission was granted
and the witness examined. Defi'iidiiit's counsel
objected to the issuing of the commission, and
refused to cross-examine, as he could not consult
his client, but he attended at the trial, and made
the best defence lie could. It being very im-
]iortaiit, under the circumstances of the case,
that this witness should be siilijected to cross-
examination, the court granted :i new trial mi
liayment (if costs. Ariinldy. Hhjijiii.', I 1 (J. H. I'.li.
The rules of practice which allow (evidence
to be taken under connnission are not to be
extended where the object is to ))roi'ure mere
scicntitic testimony ; tlitit is to say, the testi-
mony of experts. Itii-t-iill V. <lr<'iit Wi^h rii It.
C'(A,*3 L. .1. 11().--C. 1,. Chamb.- -Hagarty.
After notice of mntion served for an order to
administer the estate of an intestate, a connnis-
sion may he obtained to establish the fact that
the iiarty applying for the order is one of the
next of kin. FtiiT'll v, ('rnii'k.sli'Kik, 1 Chy.
Chamb. I'J. .Spraggo.
A demurrer had been argued, and the court
instead of allowing the demurrer, g.iv c the plaiu-
titl' lilierty to amend on payiiieiit of co.sts. An
apjilication by the plaiiititl' for a cunimission to
examine the defendant in Lower Can.ada before
amendment, was refu.sed with costs. Cliiiiifi: v.
Ilnidi i:sini, I Cliy. Chamb. 30. -Ulake.
Where it was considered conducive to the ends
of justice, publication was opened and leave given
to examine further witnesses, and to issue a
foreign commission upon payment of costs, and
u[Hiii the terms of examining the witnesses in
Canada at the next examination term, and the
witnesses residing out of Canada at the same
term, or by foreign commission in the nieantinie ;
if the latter, the commission to he returned and
depositions disclosed two weeks before the exanii-
nation term, it appearing not to be owing to the
negligence of the party ajiplying that the evi-
dence had not been taken before. Jidiiiix. Ti'mj-
hcn-ij, 1 Chy. Chamb. 104. Spragge.
A conimis.siiui to examine a witness abroad to
use his evidence in a pending reference to a
master, should be moved I'oi' on the master's
certilicate, and not on an atlidavit as to the facts.
iStijiliiiis V. Mitirx, 1 Chy. ('liaiiib. 'JOO. — Ksten.
A commission cannot regularly he issued until
after replication tiled. Jx'ni/nl (\iniulkin Hank v.
Ciiiinarr, '2 Chy. Chamb. 388. — Taylor, Si-rn-fari/.
The master cannot ex parte issue a cortitieate
f(jr a foreign commission. Mcl.mnun v. Jfcljys,
3 Chy. Chamb. 193.— Chy.
C. S. C. c. 79, s. 4, which authorizes the issue
of a subpo'ua to the province of Quebec requir-
ing the attendance of a witness for examination
in this province, (h)es not deprive a party of the
right to have witnesses in Quebec examined by
commission. S( rat ford v. Gnat Western li, Co.,
G r. K. 91.— Holmested, Referte.
I :!
1319
EVIDENCE.
i;k'()
A c'oniinisHiim fur thu o.\:iiiiin;itiiiii of a jiarty
ti) tliL' f iiHii on ills own iii)|)lication will not be
grautfil iiiiJoss it is tluaily shewn tliat the com-
mission wouM, umler the eirenuistaiiees, be eon-
(lueive to thj emls of justi(!e. /'/•(<•( v. fi'iilii/,
G P. 11. 2.")'/). — Chy. Chanib. — Blake, oil appeal
from Holniesteil, I'lj'vnv.
2. Piihlii'iitUiii.
If a coniiiiissiou to examine witnesses abroad,
issueil at tlie instance of one J'arty and executed
at his e.\|)ense, be returned by the commissioners
into court according to the statute, the opposite
party has a right to call for and make \ise of the
evidence at tiie trial of tlie cause. .Scnjble, that
an order for the [lublication of the evidence may
be obtained before trial. (Inrilnii v. Fii/lrr, iiO.
8. 174.
AVhen a commission has been executed and
returned into court, an oiiler ex parte will be
granted for oiiening it and publication of the
evidence, notice to the o])]iosite party being re-
quired of the time of (jpcning. XkiIiv. W'lllinur,
4 L. J. 88.— C. L. Chamli. ■ Burn.s.
Xo order is necessary for leave to open a
foreign commission duly returned. Tiie pro]ier
l)ractice is to open it without order, in the
presence of all parties. Clinlncr-i v. I'hjalt, 1
Chy. (Jhand). 282. — Spi'agge.
3. Irri ;/i(l(iri/i('s in, nml Jt'diini a/.
(;i) Affuldrit tif (lur lakbuj.
Whcro the execution of a connuission to ex-
amine witnesses in the United States was prove<l
l)y the allidavit of the commissioner named
therein, and the return thereof made under his
hand (witlnmt his seal) : — Held, that umler the
provincial statute 2 (Jeo. IV. e. I, the execution
was suliieientlv authenticated. Biuch v. Oiliil,
4 (). S. 8.
The return of a commission under the hand,
Vmt not the seal, of the c<innnissiouer, is sulli-
cient ; and the affidavit of the execution may
be sworn by the eonunissioncr himself. //;.
The signature and seal of a person affixing
the same as chief nuigistrate to an affidavit prov-
ing the due execution of a commission issued
from this court, will lie presumed genuine until
the contrary is proved. (ihuerc, whether the
■witnesses should not sign their depo.sition, and
whether it should exjiressly appear on the face
of the answer that they \\ ere sworn. Dut d.
Leiiiobw. v. liiuiiiioHtl, 5 (). S. 337.
Where the mayor or chief magistrate of a
place to whicli a commis.siou is sent is the plain-
tiff, the due taking of the eimimission may be
sworn before and certified by the person next in
rank. Thoinpmn v. Cummhujx, O. S. 106.
Semble, that an affidavit stating that the ex-
amination of the witnesses was duly taken, and
not that the commission was dulj' taken, in
accordance with the literal wording of the stat-
ute, i8 sufficient. McLaud v. Torrance, 3 Q.
B. 14().
Semble, also, the affidavit need not be intituled
in the cause, Ih,
The affidavit, though not intituled in tlii> court
or in the cause, is sullicicnt, when aiiULXcil to
the connuission under the seal of the inuiniis.
sioners and referring to it. />'., d /'nrk ii ni
V. Hi'mlirnon, 7 Q. B. 182.
■\Vherc the duo taking of the cviiliiii:^ was
sworn to by A. l)cfore 15., who certilicl at tl'iK
foot of the affidavit that he was "pohcr iiiili-i;"
of a certain town in the state of Kciitiukv: tku
A. was a person well known to him ; ,;iiil tliut
' he ileiioscd before him the triitii of the nmttirs
' stati'd above, and who signed the ciTtilicntL'
with a scroll, (), in the phux' of a seal, aililin.r
that he had no corjioratc seal ; - Held, iiikiii an
objection because the alii<lavit was not siihs(.ri|]t..,l
by the deponent, ;ind there was no ]iroiif df the
i authority of H., and no seal attiehnl to his
name, that the connuission was duly exucuttil
j anil might be read. l'(i--<--iiiiiiri v. Iliur'i< 4 (I
H. 344.
The allidavit of the due taking of the luiiimis-
sion need not be signed bv the dciioneiit. WiU
iiKif V. \yii>/sin,rtli,'\0 (}. h. 'm.
1 Where a commission to a foreign eninitiv has
been executed and returned, and reinaiiis uii-
o])ened, and it is supi)osed that there is im
proper affidavit of the execution iittueliuil, tlie
court will order it to be ret\irned to the ('(iiiiiMis.
sioners. /Jot- d. //;(// v. //»;/, 1 1'. II. 44, p.
, C. — Burns.
I The alfidavit need not state in so m.iiiy Wdnl.s
I that the cvi<lcnce was tluly taken. It may iju-
I scribe the proceedings and thus shew it. liiiiiiiii
I V. WhUliiii; 14 (,). B. 241.
A commission issued to one (i., of the city of
H., in the L'nited .States, to takceviileiKenf one
1 S. of the sai<l city. It was riitunieil with an
alfidavit by the commissioui'r of due exeeiition,
sworn at H. befoi'e the mayoi', but the alliihivit
did not shew that the witness was exaiiiiiietl
there : — Held, sullicicnt. Sldihliii v. Amli rsnii,
20 Q. B. 230.
I QuaTo, whether the affidavit nuist be sworn
: before the m,iyor, &c., of the place where the
! evidence is taken. J h.
At the I'ommenccment of the trial, tlie eoiiii-
scl for defendant not being present, the eimnsei
for the plaintili' opened his case, and wiiile he
was reading evidence taken uiide'r a c(>!iimi.ssioa
at -Montreal, tiie counsel for defcmlaiit ajipeareil
and objected to the commissidn, .-.s tlie eiiveh'pe
enclosing it w.as not under the haml ami seal of
the commissioner, and there was no allidavit of
the due taking :--IIeld, that the nhjectioii wm
[ fatal, and taken in time. lt<fi>nl. v. MrDoitiilil,
I 14 ('. P. 150.
I It is no objection to an affidavit of execution
; of a commission to take evidence ahmail, that
' the contractions, Plf. and Di'j't. were useil in the
■ intituling of it. Fnink v. Ciirnuii, ]'> C 1'. 135.
i Nor that such affidavit was intituled in the
Common Pleas instead of the (Juueu's Bench.
(JuniHtock v. Jiurroiren, 13 Q. B. 43i).
The affidavit stated that "the ex.amination :
of B., the witness named in the said cdiiimissinn,
was taken before me and the said )V. .it, tc.,
according to the directions of the said commis-
sion :"■- Held, that the examination annexed to .
the commission was not proved, for the allidavit
1321
EVIDENCE.
1322
vit must be sworn
thu triiil. the i-oim-
[rtsullt. tlie cninisil
lease, and while be
iiii.l.'i- a iMiunnissii'ii
l,MLiiilaut appeiueil
(i,u, as the envel"V>;
haiul anil seiil <'t
luas U" alliilavit h1
the Hl.jeetioii WW
[,.,■,;,•,/ V. MrDvliilhl,
lidavit of execution
i.lfuce al.ioa.l, that
[•',;.». l.-.C. IMS'''
Ls intituled in the
Ihe (Queen's Bench.
[B. 439.
"the examination!
jhosai.lcommisswii.
11,0 said W. fit. *'■•
f the said conimis-
Lnatiouanuexedto
led, fortheathda^'M
(lid nut in any way identify it witli that wliich
it atited tn iivve l)uon duly taken. Mill'i^inn v.
(hvwl Trunk Ji. Co., 1« 0. 1". I!»l.
Held, unilor 34 Vict. c. 14, ()., tliat tliu tine
tikini'iifa I'onimission, executed in Montreal,
wits aiitlieicntly proveil hy an adidavit made
U'fiire a notary public there, and not liefiire the
nviviir or (diief niagi.stratc as retjuircd hy C .S.
V.'C. e. :i-2, s. 21. IJi'inl v. Sl,;-I<; 'M (,>. B. 4.^
(1)) Rifiini.
Wlierc the execution of a conimission to ex-
.inline witnesses in the United States was j)rc)Ved
!iv the aliidavit of the coniniissicner named
tiieiein, and the return thereof made under his
hand (without his seal) : -Held, that under the
iimviiieial statute "2 (leo. I\'. e. I, the execution
w.is sutlieiently authenticated. lUnrh v. (hli/l,
4 0. S, 8.
The retmii of a commission under the hand,
Imt ncit the seal, of the commisHioner, is sutli-
cieiit ; and the affidavit of the execution may he
SKiirn hy the connnissioner himself. //'.
Wliere at the trial an (d)jection was taken as
tithe ninu (d' the return, the court would not
an argnniout aUovv another ohjcction, which
OTuld have been fatal if urycd at the trial.
llihUi-l V. Juli/i.tliiit, (! U. S. tilfa.
Held,th!it the connnission not having been re-
turned to the oIKee of the deputy clerk of the
cniwn pursuant to the judge's order, was no
objection at Xisi I'rius to the admission of the
eriileiice. St'trwiOH v. Ji'iic, '2 U. 1*. 40(>.
A cdmmission enclosed in an envelope, wliich
came to hand with an opening not large enough
t" allow ijf the escape of the papers contained
tlierein, is sulHciently close to render it admis-
sible. Friiiik \. <\irxiin, lo C 1'. 13").
Effect of the word "close" considered. //).
Such connnission need not be endorsed with
tlie style of the cause in which it is issueil. //).
Xor need the evidence be annexed to the com-
mission. Ih.
A commission should be so framed as to bind
all parties to be examined under it, particularly
13 to the mode of administering the reijuisite
oaths, as, for instance, to Jews. Ih.
Sendile, 1. An objection to a return, wliich
states that the execution thereof will appear
"by the schedules and papers annexed," while
the examination and affidavit of due taking are
not annexed, if such (d)jection be either that the
return is defective, or that it is no return at all,
maybe fatal; but if the objection be merely
that the return is separate from the schedule, it
must fail ; i. That in all cases a return should
be endorsed on the commission. lb.
A party who joins in acting under a commis-
sion, which contains specific directions as to the
mode of return, cannot afterwards object that
certain foruulities prescribed by the statute, but
»ot by the commission, have been omitted. Ih.
see, also, Ikylamlw. Scott, 19 C. P. 1«5.
A commission produced at the trial in an
envelope open at both ends, though otherwise
fell secured, and under the hand and seal of the
commissioner, is properly admitted in evidence,
it ai)pearing that it arrive<l at the Toronto post
otiicc ill that state, and there being no suspicion
of its having been tampered with by cither of
the parties interesteil. (Irahani v. Slfintrt, 15
C. P. l(i!».
It is always open to a party to explain to the
satisfaction of the presiding judLre how the en-
closure became o])en, and the reception of it
being a matter resting very niucii with the judge,
the court will not be disposed to interfere with
the exercise of his discretion. ///.
The atlidavit of the commissioner stated that
" the examination of A. M., the witness named
in the said commission, was duly taken before
inc at, &c., as above certilied, under and accord-
ing to the directions of the said connnission."
rreceding this atlidavit was a certiticate stating
that "the foregoing are the depositions of A.M.,
in the annexed connnission nanu'd, upon the
interrogatories taken hefore me at, i^c, under
the connnission hereto annexed ; and 1 certify
that the same were taken according to theilirec-
tions in said coinniission contained, and that
I annexed hereto and to said commission are the
said interrogatories and the doeuments therein
res[>eetively referred to." On theeoiinnission was
' endorsed the fidlowing return: "The retuiii of
the within written coniniissioii will appear by
i the depositions, allidavits, and pajiers thereunto
I annexeil :" — Held, that the examination or depo-
I sitions, which were in etlect held to be synimy-
I inous terms, was, or were, fully identified as the
examination (d' the witness under and annexed
I to the commission. Mm-hh v. Liu/hno, IG C.
I'. 4-20.
Observations on the inconvenience of the pre-
I sent rigid statutory provisions respecting the
! admissibility of evidence t.dvcii umler a connnis-
sion. //'.
See JfifonI v. MrDomihl, 14 C. 1". MO, p. 1320.
(c) Olhi'r rV(.sv.«.
Ft is no objection that one of the witnesses
attirmed instead of .swearing, liniiiicl v. H7n7-
law, 14 Q. 15. -241.
Held, that upon the afiidavits it sutlieiently
appeared that defendant had waived tiling cross
interrogatories, more especially as the evidence
had been taken more than six months before
the trial, and he had never moved .against the
proceedings. Ih.
Held, that a mistake in the entitling of the
cause in the commission, (the defendant having
been styled William instc^ail of Samuel,) was
fatal to it ; and that the taking of the evidence
under it was a void proceeding. iJr<ih(tiii v.
Stewfirl, 15 C. P. 1G!».
A commission was aildressed to S. B. Hevry.
and(}., of Philadelphia, jointly and severally.
(t. took no part in executing it, but all was done
by one S. B. Iliifi/, and an affidavit of the
plaintiff's counsel at Philadelphia, taken before
Ct., explainedthatHuey was the name forwarded
by him to the plaintiffs' attorney here, butthrough
sinne clerical error it was directed to Ilciiri/ ;
that he knew no such person as S. B. Ilcurij in
Philadelphia, but that the Huey before whom
the depositions were taken, was the person in-
tended. This objection was not taken to the
commission at the trial, though others were, and
' ^H^
' : 1-
l.i!-
1323
EVIDENCE.
1.121
tlie fvidi'iH'u of witncssis on Imtli nJcIcs tiikeii
uiiiUt it was I'l'ail ; Ik'ld, Iliig.'irty, .1., <lisH.,
tliat iiuvortliclcsM tile irliJL'ctiiiii w iiM tat:il, fiirtho
ik'iionitiiiiis litiiij,' taken witlnmt autlnirity were
iKit ill tact ileiHi.sitiiilit, and the exeeuticm of tlie
coniniinsiiiii was a nullity. I'l'i- Drajier, ('. .1.
It will Ipo very liesitMlile in aitdpt tlie siij;j,'estiiili
ill drill ('. (iiiunil I run Serew ( 'dllier Conipauy,
I.. I!. I ('. I'. (KMI, ami ti. leave all merely tech-
nieal nhjeetidiiM to lie taken ailvantaire (if by
inotiiiii in elianiliers. giviin; etl'eet at N'i.'^i I'riiis
"Illy to tlie aliMene(! nf what onr statute makes
conditions jiroeedunt to the use of the deiiosi-
tions. LiKijn- V, Thoiii/ixoii, 2(5 (.). H. "iSH.
Defendant having; made one olijeetion to the
evideiiee wliieli was overruled, allowed it to lie
road, and eommeiited uiioii it : Meld, that lie
was ]iveeludnl from takiuj; any further exeeji-
tiolis. Fdi-irly. Slijilnii-i, 17 Q. B. -TiO.
Where the eoiuiiiissiou jireserilies a \iaitieular
time and jdaei^ for takili;; the evideiiee : <i>iuere
as tu the elVeet of iiegleetiii>,' this direetion. III.
It is no ground at the trial for exeludini,' evi-
deiiee, that the d;iy lirst n:imed for the exainina-
tioii was ehaiiged liy the iilaintill' and another
ajiliointed. Sueh an olijeetion, if avail.alile at
all, must lie taken by motion before the trial.
CoiiiKtock it III. V. (Iiiilii-aitli, •_'! (,>. I'.. "iOT.
It is not esseiiti.il that an examination should
take phiee iipon the lirst day ajijioiiited therefor,
but a iiotiee annulling the first one, and aji]ioiut-
ing a subsei|ueiit ilay for sueh examination : —
Held, sutlieieiit. Ciniisfw/: ( I ii/. v. 'I'yrri II c/ dl.,
1-2 c. I'. I7;{.
I'lMin a eommission, the naiiu' of one witness ,
was stated to be \\'illiaiii Lansing Flyiin, and in
the return of tlie eommissioners, they stated
they had redueed to writing the answers of
William L. Klyiin : — Held, not to vitiate the |
coiniuissioii. Jh. i
4. ( 'imtK.
Notice of trial was given and duly counter-
manded. Defendant obtained a judgment as
in c:isc of nonsuit, the iilaiiititf not having pro-
ceeded to trial according to the practice, and
claimed costs of a cominission to examine wit-
nesses ill the United States, also, a counsel fee,
and a fee for preparing a brief. These were
refused by the master ; and ujion motion for
revision, it was held that under the circumstan-
ces of the case the master ought to have aUowed
the commission, notwithstanding the counter-
niaiul. Pei/'j v. /V./</, 7 Q. ii. 'Jl'O ; See ,S'. C. 1
C. L. Chanib. 190.
An action in wliich it will be necessiiry to
issue such commission, may be brought in a
superior court, although the amount sued for
may be within the jurisdiction of an inferior
court. Coinstock v. Leaneij, 3 L. J. 1,3. — C. L.
Chamb.— Burns. See, now, C. S. U. C. c. .32,
s. 19.
The costs of a cominission to take evidence in
a foreign country form part of tlie costs of the
cause. Culhornv v. Thomas, 4 Cliy. 1G9.
5. Other Cases.
If a witness be examined under a cominission
in a foreign country, it is not necessary at the
trial to prove that be is still without tiic Mirij.
diction. WalMoii V. Ln, II. T. .I \' let,
C. S. r. C. c. .32, ss. 19,21, autjinii,,, ,i„
examination of aged or iiitirm inis.jus im,!,,.
eommissioii within, or any peisnii out ef Cijiitf
( 'aliada, but lirovidea for the prc.f and riri.|itii,u
of sueh latter exaniiiiatioii only : Ilild, tiuit
an exaiiiinationwithin Tpper ( 'aiiadaw.iNcii.nlv
by necessary intendment, made reeeiviiMi; uiiilir
t . S. r. ('. e. .32, when duly taken, wlii,!, in
this ease M'as Jiroved by the eoiiiinissi,,inr
llil<iii V. Divinii.i; 2() (>•. P>. 100.
Till! note, the subject of the ai'tioii, uliirjiwas
eoinmeneed on the 27tli .luiie, ISt;.'), wa.s ijatiil
(itb .Mareh, IS.')7. To .-ui internigatory, refcrriii;'
totlie note as marked " .\," but asdatid tlnlltfi
March, IS.")7, the witness answered. " I was tlie
holder of the [iro. note iiiarkeil '.\.' henimto an-
nexed, up to and until M.iivh (itii. i;.' ; | «usi
sueh holder from Mareli (Itli, '")7, to Maivli, '(u,."
To a subse(|iieiit interim ig.itory, as toanyiiav-
iiieiit made by defendant on the note, lie >tatcil
that he had received, besides several in'evinim
amounts, the sum of .SI.") on 2litli .Vevimliur,
l.S,"i!> : -Held, that the note sued n|ioii liad Uvu
sullieiently ideiitilied as thiit iipmi «lii,li the
piyment bad been made to t;ike it nut nf tiie
Statute of Limitations : that the mere mistake
ill the cpiestioii as to the date ji.id been srt rii'lit
by the answer; and that tlie iiiaxiiii "t'lilsa
deinoiistratio non iioeet" jipiilied. .l/»i7,A v
Lnillijiv, It. ('. 1'. 420.
A comnii.ssion directed to two |ieisiiii.<, ]ir(i.
vided as follows : "and we L.'ive to eacii (if Vdil
full power and authority to administer siali ilatii
or ;ilIii'inatioii to the other." The .sole aetiii"
conimi.ssioner was not sworii before lii^s lellnw
eommissioiier, but before, an imliiiarv eiiiniiii>.
sioner of the court ; Held, tiiat the eiiniini.^inii
was admissible. Ili ijIhikI v. Srutl, I!) ('. ]', lii,"i.
The plaintitt" by his eoiiiisel atteiided lielnie
the coiiimissioner so sworn, .-iiid took ]artiii the
examination of the witness jirodiieed, witlimit
further objection than refusing to eiuiseiit to
the mode of admiiiistering the oatii. (jMiiere,
whether he could afterwards oliject. /A.
The r).3rd general order of May, KS.'iO, dues ii"t
apply to a foreign commission for taking dqjosi-
tions. Anon., 2 Chy. 122.
Adhere a defendant in a suit refused tu atteiul
before commissioners .appointed for the- iniiiinse
of taking his evidence in a foreign eniiiitrv, tiie
usual order to set the cau-ie down, to lie t;ikeu
pro coufesso, was made. I'iU'itt'i-<s w Bmibi;\
Chy. 147.
Held, that where one defeudaut olitiiiiis m
order and examines one of his co-dcfeiulaiit;',
and the other parties to the suit crnss-examine
such co-defendant, he is thereby made a gn<A
witness in the cause. (iriDialiaiir v. Pud", ti L
J. 142.— Chy.
Where a commission to take cvideiice alnnad
could not be executed in time by reasitn iif the
illness of the commissioner, the plaiiititi was
allowed further time to set the cause down for
examination and liearing. Mcliili/ri' v. Caimiki
Company, 2 Chy. Chamb. 4()4 —Taylor, &cft-
tary.
All examinivtions under foreign commission
must be by interrogatories, unless otherwise
\T1'>
EVIDENCK.
13l'l>
loreiK" conmiission
unless othermse
•iiriiiiiC^il '">' i'"'""'"t. li'iiriliiii V. KUiiil, •_* ( 'liy.
Chami'. 471.
('. S. ('. I'. "". ''•''• 4 I't ^'''l> ^vliii'li aiitliciii/i'
the is""^ "' Hiil'l""''""^ til the iiriiviiii'f cil' l^iiclifi',
,l,ii!i iiiit take i'vviiy till' iinwcr of tliu ciniit, imr
liipiivr till' |>l:iiiitiir (if till! ri^ilit til I'Xiiiiiiiu'
witnew'* tliii'i! liy ('oiimii.sMiiiii. M'/nti/n v.
/■„„■,(! I'. If. 110.- t'. li. Climu'i. Divltim, r.
(' iiV. ; Sliiil/iifil V. (Iridi Wixli'ii li. W. I'll.,
jl'l^ ,[,>•, S, HI"-'. Cliy. CliJiiuli. 'I'.iyliir, ,V. .■-
filiU-IJ.
\lll. r,r.ii'i:ns iiiicATiiia.
LottiMs riiyiitiiiy, Hiioh lis .iff iiriiviilcil I'nrliy
■mactiil tlu! ('iiii,!,'n'.«H nf tliu I'liituil Stiitcs ai
'i.»ii:ililf I'nuii iiiiy l(ilfi','li cii'irt, will In; issiifil
liv till' niiii't lii'i'i-'. iiltliiiiij,'li ill tln! jin'sciit state
(li imi' law nil rL'L'iiii'uiMl ■ (.•(•(iniiiiiMiatidii can he
aliiink'il lit-Tc t(i suitdis in tin: I'liitt/d Status. In
IttttTS i'iii,'iit"''.V sii issued Ihtc, tlic usual otlci'to
Riiilor similar sLTvicu when ri,'(|uirc(l was uccus-
siriivdiiiitt^-'il' SiR'li k'tt(/rs in^od luit iifL'cssai'iiy
In' ill the luuno <il thu sovortij;!!, hut wuru issued
;is irmii the judf^'es (if tlieCdUit of ( 'iiaiu;erv.
fiiiiiil Sliili's y. I)iiii.t(iii, 2 Chy. t'liaiub. ITli.
Tavli'i', SirrilKi-i/.
Leave was gnintcd to administer interr(i;,'at(i-
lies before jilea lileadid, leave to [ilead several
matters lieing asked for in the same sumiiioiis,
and the interrogatories liaviiii; iiarticular refer
ellee to the jileas siiiigllt to he pleaded.' ,S7/Vi/
V. Ciithhii-I, W I.. .1. II. C. I., CIliihIi. Ihirns.
Aetion liy executors for dealh of test.itor,
caused hy defendants' neglinilice. Measure of
damiiges. Intel'l'ogatiiries liroliosed hy defen-
dants to |ilainti(l's after issue joined, as hearing
Ulioii the i|Uestion of ilaiu.ages how far allow-
alile, and when they should he )iro|iose(l. l-'orni
and nature of siudi inteiingaturieM. When and
how oliiectiiins should he taUell. Frri'ii i / ill. V.
(.■,;iil \\,i/irii It. <'"., I.") «,». li. ."ii;}.
( hi an examination of aw itness under ( '. I.. I'.
Act, sees. ISI, 188, his evidence will not ho
read if the ri^dit of eross-exaniinatioii has hceii
denied. Cnlrillr v. .Inhii-^iiiii, ."i 1'. I!. K;-.'.— C.
L. Cli.inih. Dalton, (\ r. .e /'.
See /'/,»•.. v.
i:m.
Mill tun, L. .1. N. S.
i'.t.
!'•
I.\. Examination ov 1'aktiks and WiT.nkssks
HIT OK LVlUUT.
1. At CoiDiiiDii Law.
(a) ['mil r liifi-rnii/iiloriit.
[Tht e.aniiiiiiilii'ii <if llii- u/i/nhiifi- piir>i/ iijinii
i(l(f)Y'«;'(/'i('ii s II lull' I' •'<■'''•.■<. IUD-I'.I'i nf llw <'. L.
j>, ,|r/, liiin liiiii .•(iiiii'i;ii-ili-(l ill jiruf/lri' hi/ llii' oriil
uiiiiiiiiiiiioii jimi'iiliil for liji till' Aiiiiiiiiixtriitiiin
<'Vw(i(v ,1(7, lS7o, xirx. :.'f-tii.]
Iiitm-dgatiiries for the discovery of the nature
(li (lifeiiilant's title under C. L. 1'. Act, 1851),
.«. \'\\, allowcil upon siiinnious to shew cause.
\lw*miui\. Iliir.iiiiitii, 2 L J. ;21 1. -C. L. C'liamh.
-Bums.
Aiiplii'atioii for leave to deliver interrogatories
liinliT sfi.'.^. 17(1 and 177 of the ('. L. l'. Act,
IS'ili, imist be siipjiorted by a positive alKdavit
(li mi-rits. Mi-Liii'iti v. lliilrlii.iini, 4 L. J. S,"). —
r. I.. I'hamb. Itichanls.
Under tlie C. L. 1'. Act, see. 190, the leave of
tlic fdurt (ir a judge is necessary to authorize
iiittmigatdi'ies either with the deelanvtion or
pl(.':is, or at any other time. Bank nf U. C v.
to'«, 3P. K, 4G.— y. B.
luterrngatdi'ies will not be allowed to be put
for the (liacovury of matters on which to found a
pita, but must be in support of pleas already
pb(W. filri-el V. Promlfiiot, 'J L. .J. 213.— ('.
L. Chauil).— Burns.
liitijrrngatories will not be allowed before de-
cljratidn without special facts being shewn.
Jfi:AV,i:,V y. (7,,,.^., 4 p. R._C. L. Chanib.—
liraptT.
^'or wliere the application is of a tishing char-
acter, to ascertain whether the plaintiff has in
act any cause of action, or to fish out information
of a peual character. Ih.
Xor where the interrogatories are such that
j the answers would, as ui case of libel, tend to
cnmiiiate the person interrogated. lb.
(b) I'liilir till .[iliiiiiii.ilriiliiiii nf .liixtiir Art.
The allidavit in supjiortof a motion under see.
■J!) of the Ad. of .1. .\ct of 1S7:I, for an order for
the examination of the di fi'iidant, was made by
the ]iartiier of the plaiutill's attorney: llehl,
sullicieiit. IJni/il y . Ill iiilii:iiiii,{i \'. 1!. 2.")t. -C.
L Chandj. Dalton, ('. C. .(■ /'.
In the case of Haniilton /•. (iivat Western It.
Co., the aflidavit in support of a similar .ipplica-
tion was made by the managing clerk, and Mr.
Dalton held it to be sulticient. /'/.
On an a])plicatioii for an ordei' to examine the
chief engineer of defendants ; lltdd, that he
was an oliicer of the company, within the mean-
ing of sec. 24. 0((/,7( (/ V. Tiir'iiitii, li'ri I/, ,{■ llrinr,
li. Co., (i I'. H. •l:^•^. ' ('. L Chamb. 'Dalton, U.
V. A- P.
'V\w wolds, "action at law," in the 2 Itli sec,
includeaii interpleader iiroceeding, and defendant
therein may be examined. Ciiiiiiilii I'l-niiiiin iit
Biiililimi Siinitii V. i'lii-ixt, C P. It. 2,")4. V. L.
Chand).' -Dalton, C. V. .0 /'.
One of two defendants in an action of eject-
ment allowed judgment to go by default : lleld,
that he was nevertheless liable to lie examined
under sec. 24. ISiifoii v. ('iim/ilull it nl., 12 L.
.1. 17.— C. L. ('hand).— Ihdton, ('. <\ .(• I\
2. //( ( 'liiiiicirii.
(a) < li'iliv mill Xnt'icr.
The ■"joth order of May, 1850, renders it no
longer necessary to obtain a special (uderfor the
examination of witnesses in a cause before an
examiner. Fiillir v. liirlniioiiil, 2 Chy. oO!).
Service on the solicitor of a copy of the exami-
ner's appointment for the examination of a party
is a surticient notice to the solicitor ; and it is
not necessary that the appointment should name
the parties at length. Fnidir v. Bolton, 12
Chy. 437.
Where a plaintiff, thougli duly served with a
subpa-na ami the examiner's appointment, does
not appear to be examined under 22nd order of
i'ii
1327
KVIDKNCK.
( 1. 1' '
-, , h
."I r
, I
i;i28
tlx* 3i'(l of .liino, \HC>X till) ilcft'iiiliuit'rt luotiiin
tliiit he iln atti'liil 111' Ntaiid I'diiiliiitti d Im iiihiIi'
(^\ parte, iiiiU',s.s tliu ciiiii't Hui' lit ti> iliiTct iioticu
tci III' j^ivcli. //).
A ik'l'('ii(lant \i:m n rl^'lit to cxiiniiiut tlic jiiaiii-
till IVM soiiii .IH lii« uiixWiT is IIIimI, tliiiu^;li tlufe
liiiiy III' iitliiT ilut'tiiiliiiitH wliii liavi' lint :uiH\\ t It'll ;
iiiiil it is not iiei'iH.Hary to mui'vo tlioia with imticu
(if thu uxjiininiitiiin. /I>.
Till! plaiiitilVlinx Ji riKlit to I'Xiwnim. tin.,!,,!,,,,.
iliiiiL lit till' i-xiiiiiiiiatiiiii ami Ihmhh^ ,,| ,| ,
I'lUiMi', altliiiii),'li till' plaiiitill may li.n,, „|,,;,,|.,
i'Mm«-i'Xuiiiiiii'il liiiii mi his aiiivMi-, .'iinl nu ;i|i;,||,
ihivit wliirli III' liuH iiiiiili' in tlir eaiim', '/V,,,,,,,,
All appliratiiiii Inr iiu oiiIit that a party tn
a Hiiit ilii siiliiiiit til lie t'xaiiiiiii'il at IiIh own
ex|iL'iiNi', iir ill ili'faiilt \n' iniiiiiiitti'il, will iml In'
graiiti'il ux parte ; iiutiee iiiiiHt he Ner\eil. 'the
rij^lit til exaiiiiiii' a party tii the cause is nut
atleeteil liy No. '_' iif the < liilers iif lOtli .laimary,
18ti:i. llV'ic V. .]f(il/,i.i,w, I t'hy. Chainli. •-'•-'4.'
Spragge.
Moii V. Hiiii/, I < 'liy. < 'haiiili. 'Jt7,
>priiggi.
(e) n'li,r>- Tiihn.
Since the iirilers of Kehniary,
' will nut ilirect the exaniinalinn
t;iki' plai'c lull re an oxaiiiiner in
III! re.siilelit niastcr has lieelia|
eiuiMi'iitcil til liy the parties
iCChy. ;W4.
' Where a ilufemhint liveil at llaiiiillun, ;,ii(l
the hill was tileil at 'riirniito, plaiiitiir tm.li mit
nil apiiniiitnieiit tn eriiss-exaniiiie tlie ili'liiiiliuii
i>i'".S, tlK'i'„„rt
III Wltlllll,s|., tii
ii I'liiintVMliirt
I'liiiillteil, ultliuli^'h
I'll. 1,11, V. /'/„/„„
All apjiliontiini fur nil ordur for tlio ilefemlaiit | hefme the Deputy Master at <liiili lirh
to attenil at his own expense, anil he exaiiiineil ; pniiitnieiit was set asiile with ei.sts.
en his answer, may he iiiaile ex parte, llnrnsnn ,„;,l y, McDmiiid, '-' < 'hy. Cliamh. :{;■.'.
V. (/nir, "JChy. Chaiiili. I'M. 'laylur, Srcn/drii. Siri-'liifi/.
As a rule, a suitor has imt a ri'-lit tn
till' ,11,-
Tayliir,
Wliere a party to a suit, having no solieitor,
is rei|uileil to attenil het'ore a master •o lie ex-
amineil. it woulil seem that forty-eight Iioiiih'
liotiee theroof shoiilil he given to liiiii. Wa/.-ont
V. J/iiiii, 1 C'hy. ( 'haiuli. I'lKJ. Spragge.
The (lefcuihint is cntitleil to examine the iilaiii-
titV hefore a spi'cial examiner uinler onler '_'- ot'
the .Hi'il of .liiiie, iH.'i,'!, iiotwithstaiiiling that the
cause has hei'U set liowii, ami iiotiee iil examiiia-
tion anil liearing served. ('lurhi \. Ilnifh, I
Chy. Chanil). HKi. Mowat.
'I'll compel the atteiiilanee of a witness, or a
party whom it is sought to examine, he must he
(luiy sulipieiiaeil or served with an appointment
eight days previous to an exaiiiinatioii. Mi-
Miii-yiiii V. Till' (Iriiii'l Tnnil: It. IT. di., ."< Cliy.
C'hainh. I. SO. Mowat.
Apiilicatioii for an order under sec. 4 of t'. S.
C. e. 7!', ii^ ]>roiierly made to the referee in cham-
bers. Miijl'iilf V. rniiliri', (i 1'. It. Xi. spragge
on appeal h .n Holmested, liij'vret<.
nil;' liii
oiijionent to 'roi'iilitii, or else« licn' I'mni jn, |.,.,|.
deuce, for the purpose of illterliielltnry i'x;iiiiiii;i-
; tion, except uiioii special gi'iniinls. When',
I tlierefiire, an order hiul lieeli iii.nle hy tlii' seen-
tary for a plaiiititV to iitteinl hcfui'i' a »|nriiil
I examiner at 'roroiito -the venue in tlit ciiiisc
heiiig laid at ( ioilerich, and the p.utii'M ri'>iiliiiij
there, and the plaintilV's solicitor ri'.<iiliiii; tliirc
also, the solicitor for the exuiiiiiiiiig liiliinlaiit
residing in 'I'oronto such order was rcHiiii.kil
upon tile plaintitV refiindiiig the couihirt inniny
paid him without costs, di'tcmlaut Ih'Iiil; lii'Llt.i
have acted in accordance witli \\\\.\i a|i|iiaiiil tu
have lieeli very generally iiiiilcrstu'"! in 'I'liniiit'i
as to the riglitof examining parties. Tlu'iui'nr
practice in a ease where sjiccial gn minis uxist, is
an ap|ilicatioii on notice in Chaiiilii'rs slii'uiiii; j
such special grounds, (liillinjln r v. (Iniriliin;
'2 <Jliy. (Jhamb. 480. — Spragge.
The court will take into eoiisideratinii tlir fwt
that parties can he iiiore elliciciitly exaiiiiiioliii
'i'oronto than in siune outer cinuiticii, amluill
mit consider alone the halaiice of ciiiiviiiii'iitcni
the parties or solicitors attimliiig. .An a|iiilii'.i-
tion to change the examinatioii f rum Stnitinnl tu
Toronto was granted, although iin great iliHi'ii'iK'e
was shewn as to the coiiveiiieiicc of tlic [lartii'S
interested, on the suggestion, witlicut alliilaviti,
that the examinatioii coiilil lie uinic I'ltirii'iitly
and expeditiously condiicteil in Tenintn. K'ili»
V. Riifj'nril, 8 t'hy. Chanih. "if).
[la Coo/ji-r'.^ DiijiKl, 187;!, p. Ill, it is state<l
that, — "This case is mi.s-rcpiirteil. Tliu api'li'
cation under the circumstiiices was I'i'fiisi'lhliiitl
tion, or parts of it, m the same manner Hsa jj, -^^ understood that the fact that a witi.i'ss or
party can he more ellieieiitly exainiiii'il i» Ti'tmi-i
to, will weigh with the court ol jiuigw y" »|
motion to eluvnge the place of exaininatiuii. )
(1>) 'rililr Iif K.iiliilhliilhili.
A defendant may he examined viva voce in
support of a motion, notice of which has heeii
given, although the time for answering has not
elapsed. MfClriiiiiiijIiiin v. liiirliiiiiaii, 7 (Jhy.92.
The examination of defendant .after answer,
or after the time for answering has expired, is a
substitute for the di.scovery hy answer, and a
plaintilf can at the hearing read such examiiia-
defendaut's answer, or passages from it, could
be used against him at the hearing. l'\ir this
purpose it is not necessary to examine the defen-
dant at the examination of witnesses. Prvctur
V. ilrnnt, 9 Chy. 26.
Where the plaintiflf examines several defen-
dants before answer, the examination of one
cannot be read against the other at the liearing.
JJo}i<il(is.i V. ]Vanl, 1 1 Chy. 3'J.
The plaintiflf bv amending his bill does not
postpone his liability to be examined until after
the time for answering the amendments ex-
pires. Fuwltr V. Boultoii, 12 Chy. 437.
(d) C'roKK-i'.cdiiiiiiiiHuii.
A (li'femlaiit is liable to cross-exiuiiinatidn oil
his answer to a bill tiled hy a wife ami coiJaiU'r
titfs against her husband. I'attemm v. Kmul},]
2 Chy. Chamb. 372.— Mowat.
The right of cross-examination uiioii a" ■
davit under order 2l)8 applies to cases ivliert
the affidavit has not yet been, but io ai»ut t
"Xivmiiii' tlif ilviin.
ll llrlllillK cif tin
luiiy liiivc iilirmiy
WIT, mill ci|i:iu;ilh.
Ill' i'iiii»i\ Tifiiij,
!17. Spriigjji'.
^'1 II,
iry. ISAS, tlifomrt
,ic>u III' witiuiiwH til
I' ill II nullity wliiru
mijiiiiiitfil, ultliiiii|;h
WO
KVIDKNCK.
:t.io
\iiiiiiiiifii,
/'A./.r,, V
I'lJ.I,,,
I ;it ll;i,iiiilli>n, :uiil
1), |il:iiiitilV timk Milt
;ililliir tilt' lU'li'liilalit
,t (iiiili'lii'll till' .iji
villi i-i.r^ts. Mrllu-
'lliillili. HT-. 'r.iyliir,
it 11 i'itj;lit til liriii;:lii«
ii'wiii'i'i' fnmi lii« i''-i-
llti'rliirllt"l'yN:illil"i''
I LsriiiiinN. Wlicri',
I'll iiiaili- liy till' «'i.rf
ttt'inl lirlni-i' a«lll'i.l;il
f vt'imo in tliu aiisc
,1 till' \i;irlii'« vi'»iilni|!
^iilii'itiir ri'fiiiliii^tlurc
cxiiiiiiiiiiig ili'k'inliint
II iit'ili'l- was ri'si'iiuli'il
ii;,' till' (:iiiiilii>'t iiiiiiity
|>7i'iiil;viit ln'iiii:ln.'l'lt''
with vsliiit aiiiiiaii'lt'i
iiiiiln-st 1 iiiTniMiiti
ii^r iiai'ljrs, 'l'ln'l'i'"|«>
Hiccial j;iiiiliiil'*(.'!ii»t,n
in CliaiiiliiTs slii'wim
UilUujhir V. <.'iiM''«".
ji'oiisiiU'i'atioiitlu'lMt
I'llii'li'iitlv vsaiiiiiit'li'l
jiiti'i' ciiiiiitii'S, ami Mill
laiiri' ii( I'liuvuiiii'iitO'l'
atniiliii^'. AiiiiVV''*
latiiiii inmiStvatl.'plti
\,„i.liii,iL;ivatilitlci«'e
Ivi'iiii'iu'i' "I tlu' IBirtW
tiim, witlii'utalliiUviM
„il,l bi'UK'ii' I'tiiiii'iity
'tcl in 'I'fi-oiitci. ^"*«l
ri"i.
T;!, 11. Ill, itisstite-lj
p-rqiiii-tfil Tlif^llH
|tiiit'oswa«vi.'fii*"l;''""|
. tat't that awiti.c'Si'f]
J,tlvexaiiiim''l"'l"'""l
I. court (ll j"'!);'-'*''" *|
Le of oxaiiiiiiatuiii' 1 "
|-,(/;|(/m'(C)/l.
lo cn,ss-exai.iiiwti"n!i
1 by a wife aiuU'oitoj
' /'a«fr.«o»v.Af«mJ.*.|
lowat.
Ivminatiou "l'""»"f,«
' lU, but io about tt
\\ lii'i'i', tlu'i'i'fiiri', nil ii|i|iiiiiitiiii'iit
I I^vIIk'''" taken ti' fXaiiiilii' ii ilrtiinlaiit mi iiii
iltiiluMt wlii'li I""' '"'•'" iili'raily iiMcil, (III a
iiintiuii for iiijniK'tiiiii. till! ii|i|Miiiitiiioiit waM, on
ui,itiiiii, »>'t aniilf. t'lloii V. Miilill, ;j Chy.
I (.liiuiili. ■'>''• 'I'aylor, Sirritnr;/.
A iiiirtv 111 iluiiK alliiliixit for tlio iiiir|iii:<i' iif
nii'Viiu t'l rliali^s't' tin' M'liili', anil .statilij,' that
rrtiiii pirtii'i aro iiiatt'iial iiinl inri'Msiiy wit
I iit'wi'H in iiiitlioiiml "II rro.Mncxainiiiatioii to Mtato
»li;it iviili'iii'i' 111' fXI't'i'tn fioiii Miii'li « Iliii'Sf-i's,
I lilt" stiitr fai ts tt'inliiiK to test tin' inalniMlity
till' iini]ii«i'il i'\ iili'iii'r. (.'fiiiiihii \, III II, W
K'hy. Clialiili. l'.»">. Mowat.
Till' iiiacti r it lioiiinl i'i(iiallv with tlio nnirt to
I jil.iw a Hitiii'"" to lie i'io.'<M-t'\aniiin'il in tin' w liolo
I i-tfi' williiii't I'l'^i"''' f" '''" <'xaiiiiiiatioii in cliirf,
Hilt ill niiiiu' lasi'H. till' nuistiT may cxcrcisi' a
iWritimi as to who mIioiiIiI iiay tlii' IVch of tlic
txiiiiiiiiatiiiii. ('riiiiil'ill v. .1/ooh, (> I,. ,1, \4'.i.
It'hy.- Ksti'ii.
Ill till' aliwin'c of aiitliority to tlio lontraiy, it
liaslii'l'l tliat 1 roMi-cxaiiiiiiiitioiis u|iiiii alliilavits
[ill ri'|ily >lioiiM III' allowuil, an in the caso of
Idtlurailiilavits, more I'.siii'i'iaily a.s allidavits in
Milvriiiii'liiot otlii'l'wiMi' hoanxwi'i'eil. //< /■'<«/(/•,
m.'.i, N. s. ;ti;{ ; /.' r-'-fii; i> v, \i tir>. chy.
I Ihaliili. llliiko.
Aiiiilliilavit on jui. notion is nut within tlii'
[[iMvisioiis of oi'iler •_'(IS, ainl thfrifnri' a party
(niiikiiy mil' ihns not lii'i'oiiii' liahh' to ci'iims-
|euiiiiii:iti<iii iijioii it, i'\>'i'|>t so far ais this i.-in lie
lluil liv I'Xaiiiiiiatioii for iliscovt'i'v iiinli'r orih'r
iiJv /v/.i/iv../i.H..s(; I*. I;. i;t:.. ' c. i,. chainii.
f-H"liiii'.sti'(l, h'ifi rif.
It') t'lil'llli f, nr /Ki'-r.illut'lllill'iiill.
If a ri'li'i't'iifi; liai'k to tht^ iiiasti'r to ru-
ins it'jiiii't is iliioi'ti'il, till' niastiT is at
til R'l't'lVl
Miirli 1/ V.
fiirthfr cviduiii'i!
N. S. •.'!. -Chy
1 ^VIuTi' till' I'liiu't, oil a rclVri'iici' liark to tliu
sstcr, diifs nut mean that ht' shall take fiirtliur
■wliiKi', tlie iii'iler I'oiitain.s a iliri'i'tioii to that
pttt; iink'ss tlie ri-fi'ii'in'o hack is cxiiressi'il to
I'Tii iiuriiuse (111 which further eviileiice coiihl
pt Ix' miiti'rial. ///.
pVhm'a iwrty upon whom the onus of proof
"^ liriHliici's ait'ceiiit liefore tlie master, or other
wfiifaiiiitiiie {generally conclusive, ami closes
ii oviileiK'i' ; aiiil the other siili? jmiiluces testi-
Ny tiiiiliiig til shake this evidence, furtlicr
'finiiioi.' ill siiiiiiiii-t should lie allowed to ho
fnliiwl, tliiiiigh in strietnesi- it may lie such as
gglit have lifcu proilnced in the first instance.
l"«';;v..l/i'('((«H, 1 Uhy. t'hamh. 88. -Ksteii.
IWliere ilffeiulant'-j solicitor had omitted to
P .1 Mitiicss what had heeonie of the deed
fcimimeii hy the witness in his examination,
PwlHimissiiiii wiiulil have precluded defendant
•raigmiiysei'iimlai-y evidence of the eonteiits,
iniiiMiiii to exhiliit an interrogatory, to l.u
■niwlliy till' examiner, to prove where 'the deed
B, was given to defendants after the cause
Vb , !",'? '" *''* papers for hearing. Comrt
[Baiih,, (,e., K'hy. Cdti.
|In a crclitor's suit a witness had been exam-
T' 111 the master's office, touching the claim of
I Ulejied creditor, with a view to the claim
84
liiint! disiillowtil. .\fti'r his ix.iiniiiiifio.i hid
I'l loiii'lnili'd, pi uiitill' stati'il on ntlidav it that
Mince the t'xiiniiiatiiiii he li.ul leanii'd that thu
witness coiild have deposi'd to the fact of tint
alli'>,'i:il creditor having adiiiittid that his i laim
Inid lieen settled, and moved to lie ullowed to
re <'xaniine the witnes,s on this point. 'I'lin
motion was refused with costs, /'uliirinii v.
Sriiil, I Chy. .'iW.
W'liiMc the master refused to open a c ise w In re
the evideiiee wiis eloseil, on tlii' ground that the
appliiant had not liiaile sneh a ease as entitled
him to a new trial at law : the eonrt siist lined
his ruling. \V,i,!,l,ll\, Suf/i/i, .'U 'liy. ( 'haiiili. ll'J.
Cliv.
(f) /'I'li III!' I'l M.ii' ,^llll,
The etVeet of a claim. int's examination pro iii-
tel'esse siiii considered /'iinliis v. /tn iiiinii, '2
CilV. .VS-.>,
(g) l)i III III I ■■<■■>• .
'I'lie eiiiirt ordered a eommission for ex iiiiiiia-
tion III an aged witness to is.siie withmil itc|iiii-
ing liill to lie served ill the lil'st illstaiiee , till)
olijeet of the suit lieillg to perpetuate t( stinioliv,
and it having lieeii sworn that there was daiigfr
of testinionv lieing lost. Jlnnl v, fi'inliAn, 4
Chy. 4H7.
All application for an order to exainiiie a wit
liess lie lii'iie esse on aicnnnt of ill health may
lie made ex parte. Olinr v. />i(7,'< //,'_'( 'hy.
( 'haiiili. 87.- Spvagge ; ( 'rl/iiii ii v. ihjili-ii, Ih. ;!04.
I liiit not on the ground that he is aliout to
I leave the iiiiisdietioii. I'Jiirlii v. Mrh'ill, 1 Chy.
Chanil). •_','i7. Spragge.
Nor on the ground of illness, unless there is
ininiediate danger. .linlir-inii v. AinI' rimi, 1
Chy. (hanil). 2itl. Spragge.
Orders to examine witnesses de lieiie esse, are
only granted where it is shewn that the evidence
is to he used lor some deliiiile |iiir|iose ; yet, the
court w i" make such an order when it considers
that practice reiiuiies it. \\ IiUiIikhI \. Jliijl'ii/n
mill l.iiki lliirmi Ji'iiilinii/ Co., '} I,. .1. ■_'."{-.< 'Iiy.
( 'liaiiili. I'lsteii.
On applying for such order it should he elearly
' shewn that the witness is the only witness as to
the fact sought to lie jd'oved liy him. An atli-
davit of the solicitor as to his lielief is iiisiilli-
eiciit. .Ill nil Mill V. .linii-.-i, .'< Chy. Chainli. !(8. —
Taylor, Sirnlnrii,
111 examination.-i de heiie esse if the evidence
is not used, and tlu; witnesses arc within reach
of sulipieiia, the costs of the examinatioii should
not lie allowed. Where the evidence is material
and is used, the costs hecoiiie costs in the cause.
MiMilliiiiw Mr.yilliiii,H \., .]. X. S. •J8.").('hy.
Chanil). — Htiyd, Masli r,
I (h) PnhUi-iitiun.'
Liiliiriiiiiij.] — l^tniere, whether upon an applica-
I tiini by the plaintiti' for a stay of jiroeeediiigs. to
1 which the court considered him not entitled, an
I enlargement of publieatioii can bo ordereil when
\ an order in that form would parti.illy accomplish
j what the plaintiflf desired by his motion, //ow-
j cuti V. 7»Ve.f, 2 Chy. 437.
f. 1 'h''
If : £
'Ml
1331
EVIDENCE.
1333
(^•un're, whotliur tlic oonrt would I'lilarge j)ul)-
liuiitioii so iw til uiiJililu ii idiiiiitirt' ti> lie iiiv8unt
at tlie vivA. v<icu cxaiiiiiiatidii (if the ilofi'udant,
when,' Hiieli exaiiiiuatidii hail been iiiistpDiiL'il
by an aeeiileiit, (it which the deft'inlaiit or his
S(ili(.:it(ir was tlio uniiitiMitidiial cause, till after
Lhe iilaintill's de[iai'tui'e fnmi tlu^ iiroviiicc (iii
jii'essiiig liusiness, and tiie ]ilaiutitl swore that
it was necessary foi- his interests tliat he should
lie present. /''.
Ojitiiiii!/.] -Where on the exaniiuation of a
witness, on the '24tliof .January, a ]iersiin's name
was mentioned as having lieen resident on a lot
adioiniiiL; tlie ]iremises in ijuestion in tiie cause,
and on the 'JSth of Mai'ch, after iiulilication had
passed, the cause sot down for hearinj;', and a
sulijKena to hear judgment sers'e(l, tiic defendant
moved for leave to open luililieatiou and examine
as a witness the person whose name iiad been
nientiiuuMl, and who, he had sworn, could give
material evidence, the motion was refused with
costs. ir.(/. /■.< V. Slniilf, •_' (.'hy. -ibS.
The principles laid down l)y the court in
Waters r. Shade, '1 Cliy. 2IS, in respect of open-
ing publication, apply as well to suits for alimony
as other cases. MrKai/ v. ^fl■/\'((l/. (i t'hy. 27'J.
Where a defendant had applied to ojien publi-
cation, and an order was made for that purpose
on payment of costs, it was subseipiently dis-
covered that the plaintilV had proceeded to set
the cause down forbearing, without takiiig out
the rules to produce and pass pulilieation ; and
the defendant thei'oupon nnived to strike the
cause out of the paper of causes for heai'ing ; the
motion was refused with costs. Iliiiiiilhjii v.
Stnrt, 3 Chy. 1 •_'•_>.
Wherea pul)licatiiin had passed shortly before
a motion to open was made by the jilaintili', and
it appeared on the niotiuii that the defendant
had examined \\ itnesses, but the plaintilV had
not examined any ; and tlie plaintitl' and others
.swore that his evidence was nniterial, and that
the delay had arisen from the poverty of the
jilaintitt', publication was opened on payment of
costs. 7V////(//' V. ■Sliiijl', 'A (,'hy. 1 r)3.
AVliere it was considered eoniUicive to the ends
fif justice, pulilieation was opened, and leave
given to examine further witnesses, and to issue
a foreign commission (ui payment of costs, and
upon the terms of examining the witnesses in
Canada at the next examination term; and the
witnesses residing out of (..'anada, at the same
term, or by foreign commission in the meantime ;
if the latter, the eommissiou to bo returned, and
ilepositions disclosed two weeks before the ex-
amination term ; it appearing not to be owing to
the negligence of the party applying that the
evidence had not been taken before. Bluiii v.
'J'irri/licrri/, 1 Chy. Chamb. 10-t — Sin-agge.
The court refused to open publication in order
to obtain evidence of an alleged conversation
l)etween a person mentioned in the pleadings
and one of the defendants. Mullorh v. Piiiln-i/,
1 Clij'. Chamb. 103. — VanKoughnet.
An order made on motion to dismiss, 'pving
leave to go to examination, has the ell'ect of open-
ing publication. IViirx. iVeir, 1 Chy. Chamb.
194.— VanKoughnet.
After judgment had been given in a cause,
an application -n.-as made to open publication,
on the ground that since the dt
"... ,. -''« ''f »■>■ li»'l Wen
pronounced it was discovered that a nm-^\
witness in the cause was liciiuiiriujjv im,
ested in the setting aside a will « jii^.j, j( J''
the object of the suit to have dccLuv,] vi ,f
and had eiitijred into an agrecnicut to inili.im'uf'
the plaintitl's from the costs; but as the r*' It
would have been the same had that witu */
testimony been out of the case, tin.' cmirt ivtii"«l
the motion ; but oli'cred the ilcfi.-uilaiit. \ihi,a',
lilied, liberty to gi\-e evidence to rstaliHsh tip
fact of interest in the witness, in .iiilcr tliitj'i
the event of the cause goiuj,' to aiiiit;,! ]„[ '
evidence should not ajipear tlicicas tlici'viiLi-
of an unbiassed witness. It'".', rlmii,, <■ /, i,,]
Chy. I7(i. ' ■ "'
It is iueumbent on the court to taki' >;:iiv tjiatl
the same subject should not be put in a i..|,iiri«l
(if repeated litigation; and thit, with a viiwtj
the termination of a suit, the iii-ccs.-itv (if iisinj
reasonably active diligence in the lirst iibtaiKcl
should be imposed uiion parlies. Wlioru, tliwfrl
fore, a defendant did not .appear .-it the licariiijl
of the cause, and :i decree was pr iihitoI iij
favour of the plaiutill', ami three iii.iiiths afttr.f
wards defendant applied to opfii paliliuatiim. >
! as to let ill proof of a docuincnt ui the cxistajl
I of which he was aware, and a copy n:' which Id
had in his possession, the court refused the ao.
}ilication with costs. ViiIuh'ki! 7'/v/../..v. r,i„„|.„„j
I'l Chy. 70 ; aliirnied on re-heariiig. ///. 7i;.
P(i.-<.':iiiii.] — ^\'hen a cause i.-. set down for tiiel
examination of witucises, puhlicatinn iiasscsaa
the end of the enr.uing ex.'iiiiinatiuu tt'iiu, all
though issue may hive bevu joined les.s thai
three weeks before tiie comnicMcenienl ni tliad
term. Wal/uii v, Mr Km/, 1 Chy. t'hamh. liM
—Blake.
(i) Ot/iir CiiiiKi.
Wliere idaintitf sets down a cau.sc lurthfosj
aininatiouof witnesses, anil serves nutice thtTcoi
on the other side, liut fails to priuucd withtilJ
examination, this will not entitle defeiiilaiit t
costs of the day ; his proper cmu'se is tiK'X,iuiiDi|
his own witnesses, as thereby the iilaiiititiwiiiffl
be excluded from going into evidence iiiili* '
leave of the court. Walhi'-i v. .l/'A'";/, i (.'livj
Chamb. ()7. — Blake.
A cause was set down for the cxaniiiiatiuiiii
witnesses, and when called on the [ilaiiititl' wij
not prepared to proceed : -Held, iiveniiHiii,'tli|
last case, that the defendant wa.s entitled tiib|
the case struck out of the paper with ei'Sts
the day. Ctiliiiiir<i (iml /V/<i7//;/-»«;//( 11. II. ('(|
v. Coroi, 7 Chy. 41 1.
^Vhere a defendant has been exainiiieiloiili
answer, the answer and exaininatimi iif.v
read in connection and used as an atiiilavi:i
support of a motion for deciee. .l/n/Vii i
i Short, 14 Chy. 254.
Where one of the defeudant.s w.is a curiwrl
tion, for whom the plaintitl' had tiito'l
appearance under the "oth of VieeChanoellil
! Jameson's orders :— Held, no ulijeeticii t>ia i
, tion for an order to examine witnes.'it's agaial
' the other defendants. Jiechtty. JIns -' t'liy. IS*
I On appeal from the master's reiKUt, sctti^
1 out certain grounds of appeal : -Held, that™
EVIDENCE.
1334
k-eriMl tli:it ;i nau-rial
[VS liolli'lieiiiUy intti.
I a will wliiiJi it vi\i
,) hiivo lUrhivil \-i,\\^
LjfoL'mciit til iinU'imuiv
ost.H ; Imt as tiu' rwiiit 1
lie hail that witutsH !
caso, the CHiirtivfustil
tlu' ik'fouilaiit, will) af-
(k'ULX' to (.'stiililisli tdj
tiifss, in link')' tliat in ]
Jelling til ainiuiil. Ills
:ir thui'L' as thu eviik-iijj I
I)'i(/(y7("'(<i V. /.", 10 j
ciiuvt to taki' eari; tliat j
lint liL' jiut in a e»iirs«|
.uil that, with a vitwtijl
t, thf la-ffssity "i usinjl
iL'u ill thi: lirst iiistaKuJ
jiarlii's. Wlifi'u. tlitrt.l
t mipi'ai' at till- k-arin^t
lTl'C was jii'iiii'imia-il ial
anil tUvii.' nuiutlis aiutJ
I til lip*"!! liullliuatiiili. Mil
iiciiiuunt 111' till.' t'xistciksl
awl a i-iiiiy ii:' wliidi IkI
he I'liui-t ivfusnl the ap-
iliiiiiii! 7'/'('.<'-' V. Ciiiii'i''
111 ro-hfaving. /''. 'fi.
lauso i.- sft iliiwii I'lir we]
<es, pv.hlicatiiiii iiassi'saH
nir ex:aiiiiiatiiiii trtiu, all
•J'Ik'vii jiiiiifil less tlml
tj ciiiiimuiiceiiK'iit III tliaa
Kail, 1 (-'hy- •-''''""''■ H
l^iP,l^,fe,i(lantohtains an nnk'rand examines one
111' his co-ih'fi-'iiiliiiits, anil the other jiarties to
li, j„it LTiiss-L'xaiiiino.s such eo-ilefenilant he is j
Ilk ri'liv iiiaclf a giiiiil witness in the cause. (I rim-
■!lvJ'i'/-/'s'<ili. •'. l4-.>.-Chy.
The examination of a ilefemlant uinlcr general
linler I'W. 's t'''^' sulistituto for iliscovcry liy
L(|,r|.|y„tiirii'S, ami to entitle a iilaintilf to ex-
miiiKMrn any jiarticular subject he must niiike a
^le fur it ill liis hill. /)irtiiin v. Cori'rt, 2 Cliy.
fhaiiili. ;i4'.'.--'l"ayl"i'. .Sccrcftiri/,
Where a ilefenilaut refused to answer (luestions
lot fouinlfil oil any case or charge or allegation
nailt ill tlie hill, an apiilicatioii to coniiicl him
aatteiiilauil answer was refused with costs. //(.
Where a siihiiu'in liad hcen sued out under
ikr'iiiii. ami an aiiiinintment thercuiulcr given
|v a <iieei:il examiner at a time when no niotiou
|t otlier jii'iiceeiling was iieinling, it was held
[il*invL;ulai', anil that the (Icpositious taUen
loull lint lie read. The attending under such a
iBiiri wa.s hflil not to he a w<uvcr of the
'.;iil:irity. tile iihjectioii being to the jnrisdic-
liiiuvhiiii no M'aiver couhl confer. Slnnt v.
IK'hv. Ciiaiub. 'M'y2. — Taylor, Rrfcivr.
hla>ter,< shniihl he careful not to attach too
iuoh Weight to oral testimony in oiiiiosition to
nilence nf facts and circumstances. JJ((i/ v.
irwx ISChy. (iSi.
iiiirt will not interfere with the discretion
jtav master in deciding on the I'clative veracity
i witnesses, where evidence has lieim talccn
jvavwe lief lire him. W'tukkllv. Sini/t/i, '.i Cliy.
biiiii.41'2,-l'hy
l^reiiii a ret'erenoo to the master the jilain-
liw ire that he never received the amount of
jei'K'ytiwhieli he w.is entitled, and thedefen-
Btsivuie that he had paid all liut .?80, and a
tnesscillel DV the plaiutitF proved an adiiiis-
iliytheilel'e;iilant that the whole legacy was
it, hut the master reported that this witness
lUiitMlie relied on, tne court, in view of all
icircnmstaueBs, refus< d to disturb the master's
IlieVebytlieiili'i"''"^*'""'!
.' illti'i cviileliee Ullle.'
",lh,,; V. .1/i'A'i','/, 1 *1
Big.
illrrv. Cottn; 21 t'liy. 159.
le masters rejKHt.
Ifhcrea ilefendai.i has been eross-ex.amiued
Ihis answer, he h;is a riglit in all future pro-
liniis ill the ease to make the same use thereof
Imnler the fiirmer practice, could bo made of
jaiiswertii the interrogatories in a bill ; and
pre a ilefemlant after having been so cross-
miiicililieil, anil the c, iise was revived against
Ireal rejiresentativcs, the defendants were
Iwetlatthe heariuL to read Buelicross-exami-
T«n in answer to the stat-mient.s of the bill ;
I rendering it necessary that such statements
pHlxi [iriiveil hy two witnesses, or, if by one
pessonly, enrrohor, ted by attendant circum-
Ve. P<nnlty.Let,, 20 Chy. ()21.
fie term "witness," in V. S. C. c. 70, s. 4,
K parties to the cause as well as witnesses
; onliiiary sense of the wonl. Miift'ittt v.
f''', 1 P. K. ^X — Spragge, on appeal from
"lesteil, Rffn-ei:
Mmnation of a defendant after answer under
f m8, is an examination of witnesses within
Ny one examination of a party under order
Pihehail. l\uton v. Jone:^, (i P. R. 1.35.
Py. "-nnmb.-Holmested, Befcree.
X. lNSl'i;ri(0\, l)|sri)Vi;iiV, ANIi I'UUIMCTIOX
or DlM'lMKNTS.
1. Al ('iiiiliiioii f.i'ir.
(a) A/i/i/ici(/i"ii I'ui:
Interrogatories for the discovery of the nature
of defendant's title, under ('. L. I'. Act, IS.'il),
sec. ITli, allowed u[iiiii siininioiis to shew cause.
//(ir.iiiiiDi V. /[(>r--iiiiiiii, 2 L. •). 21 1. — Vj. Ij. Cliaiiib.
— Hums.
]'laintiir, as judgment creditor of 11. & ('n. ,
had obtained a writ calling on dereiidaiit as gar-
nishee to shew cause why lie should not pay to
the plaintiti' a delit whicii he owed them, the
allegation being that he had Mild certiiin goods
of H. it do., under a chattel mortgage which
they h;iil given him, and reeeived more than the
mortgage money : -Ifeld, that upon the atlidavits
set out in tiie case ciiough v.'as stated to call
upon defendant to shew what books he had in
iiis possession ridating to the m ittcrs in dispute.
The plaintiti' also swore that he believed the
defendant h id reeeived certain notes and securi-
ties in coniuetion with the sale, some of which
remained in his pussession : Held, iusu'licient,
the doeuineiits asked for not being idcntitied or
shewn to exist. Sni'il/ v. /vvA.v, ii |>. it. 180.-
(). K
If dcfen laut .admits the ]iosses.siou of certain
doeunieiits, but states ]iiisitively, or even says he
is advised and believes, that they will not sup-
port the plaintili's' ease : — Semble, that produc-
tion will not be ordered. //(.
Held, fidlowing Christopherson '•. I.otinga, lo
(.'. H. N. S. 800, that on an apjilication for inspec-
tion, and to take copies of documents in posses-
sion of the adverse p.irty, the plaintiH'. and to
deliver intcrrog itories, the athdavit of the party
to the cause cannot be dispensed with, even
though such party is not benelicially interested,
and the apjilication is made on behalf of, and
supported by the athdavit of, the interested party
(who in this c;i.se had paid the debt and taken
an assignment of the judgment) and of his attor-
ney. liitnriA- v. Jh- hltd/iiieiv, 4 1*. K. 2()7. —
C. L. Ohamb. — Draper.
Held, that on an application for leave to ad-
minister interrogatones, when ajiarty desires to
ascertain what documents his opponent has in
his possession relating to the suit, he must pro-
ceed under sec. ISO of ('. L. P. A t ; and cannot
administer an i"terrogati.ry to that eU'eet under
sec. 100. P/i'ir.i v. Miiltoii, L. ,1. N. S. 2.'j0.—
C. L. Chanib.— Dalton, C. ('. ,1. /'.
(b) What Docuini'titif.
When a judge in chambers has ordered the
inspection and discovery of documents, the court
will not interfere unless it appear that such
order has not been made with due discretion
with reference to the facts before him ; and in
this ease they refused to interfere. The plain-
tiffs sued defendants upon a banking account kept
as they alleged upon the credit of the defendants,
while defendants asserted that it was upon the
credit either of the Detroit & Milwaukee R. W.
Co., for whose benefit the money went, or on
the credit of Messrs. B. & R., two of defendants'
directors, who acted also for that company.
Inspection and discovery was granted to the
plaintiffs, 1. Of a statement or report of trans-
i /!l
■: VI
1.K15
EVIDENCE.
\m\
actions lictwcen dofendants and tlio 1). & M. Co., i to documents in the various stlicilules v
made l>y accountants for a committee ai)]iointed l)ut no documents were set out ji, the sl) jT
by the (h'fendants ; '2. Of letters written i)y the afhtUvvit was directed to he taki.ii r i'
Messrs. H. & 1!. to tlie cliainnan or secretary of ' tiles with costs. HmjiTu v. f '/V).,/,-.</,„„^. \
X. S. 45. — Chy. Chamb.- Taylnr,
"■/>/,„
.JJ
(b) Whiit Jhji-iiiiiiiil.i.
The mere fact of the iilaiiititr, duriu.- thtviJ
voce examination of a defeiidiiiit, iirniluiin,,;,
the defendants' com|iany resjiecting sucli trans
actions, and referred to in such report; ',\. Of
all letters in the defendants' custody, written or
received before the controversy leading to this
suit liy Messrs. l'>. it K. as the deeiidants' maii-
a;,'ingand tinanciid dircct<irs, to or from tlie defen-
dants' chairnum. and all the defeudaiits' books i „„,,.„i.^ f,.„ fi,,, ,„,,„„,„„ ,. , ' , ""■;'i
c 1. 1 i.' i i.1 i.i ■ L- , nments tor the i)uri)ose ot lia\ m . t iini i„ ,.
or account relitini' to tlie matters m (iiiestion. ,.,,n „,.i ,.„(.;n,, n... i f. „ i ,. 7 V '" "">t
„,,..,, o 1 , will not entitle tlie (letemlaiit to til- run,.!,, t
Ihe (h'fendants were also allowed msiiection and r, „. i.,, ,,.,„.„..,i „„,.,„..,„„ ,,r +. PN'MiictK,
1- c 1 ii. -i.!. 1 ii 1 ■ i.-iv ' lor tlie general puriiosea ot tile suit //„„.,.,«
discovery ot letters written bj- the l)laiiitins i)^,^^ 'Mlliv •■))'< "''"•'«j
cashier to a bank in .Vew York, ex])laiiiing the I ' ' " J' •"•
plaintill's' jiosition witli the defemlants, anil on ! When a party a<lmits doiuiiH.nts jn 1,1^
the subject of notes of the I )etroit it .Milwaukee session, he is prima facie lioiunl tu iiiiiiliRvt|''i
E. W. (_'o. Tlu'Ctiiiiiiicrriiil Hind- 11/ CiiiiaJii v. : or assign a sullicient reason wliv In,- shuuMn,
7'//c Orrat llV.s^/vf //. IT. ( '<>., io Q. B. 335. See, But where a jiarty refers in his I'liU t.Hlni,,,,,,,,!
also, .V. U. 2 L. J. >;. S. !»'.). which otlierwise he would ii(,t 1,,.. |i;ii,|^. („
<luce, he does not by so doing crc'ite a lial.iiijl
to produce them. Oni-n v. -{mni ■'> 11,]
C'hanib. 138.— Ksten. ■ > - «
As a general rule a pluintill' in ei|uity isinU
tied to a discovery, not only of tliit wjiicli.n
stitutes his (uvii title, but al.so ui \vli:iti'vtt|
iKiterial to repel the case set ii]i liv tlii-di-t'J
'2. /// ('hanccrij.
(a) ()n/rr Id /'iikIikv.
When it is renuired to proiluce any of the
original jdeadiiigs tiled in tliis court l)et'oi'e any
other court, the party <lesiring their production ^ daiit ; and as' a part of th:it iliscMveixt''
must obtain an order of this court for the pur- production of sucii docuineiits as aiv iimUrii
pose. Co/l/c V. (.'luiimiiiiix, -2 Vhy. i>SO. i the same purpose. Where, tlieret'ure.'a liill
AVhen a .lefendant neglects to put in an an- ! I'^^''^ ''^ !>; .1>^'''«"" claiming iiiidei- a >\mm
swer, and the plaintiff tiles a travershig note | '" "l'l",'^'V"", A'""'','"" '^V ''""'•"' ^'"^^ l"'"'
under the 3L'nd onler, the phiintilV was entitle,! , '^'V" "' '^f '«' ,*'"; ''^''^■'"l^'nt .sH„re that
to an (U-der for production of documents^ pursu- ' '^^'^'^ testator lia.l^ not made any vali,| „i
ant to the terms of the 31st order. Wilsmi v.
T/ioiiijMuii, 3 t'hy. 557.
Where a bill is tiled in au outer ollice, the
order for jiroduction and other onlers of course
are properly olitainalde at such ollice and not
oeiiig sworn that lie was not nV sduinl
when the suppo.sed will was execiituil, thi;co(
ordered the deed I,, be pniiiiifed. Liirlwi
Miiirliisoii, 3 Chy. 553.
Where promissory notes iiail liuen ;;ivdij
FiV,n' til'^registra^■■'7>,^»vJ//T"lVy//;;^^^■l■7•i;J^ I P^iyit^i't of the pu'rchase nioiuy „f l;n„l, J
Chamb. 15,5:~\-aiiKouglinet. I '^'-''•^•■'^* >;^'"'f 'I't^l^vards a hill «as t,l„l l|
I venilee ot the origuiiU iiniijnitnr a{,';uii<t 1
Held, following a former (iecision of the chaii- j heirs-atdaw of the original piiriliastT, it
cellcr, that the liling a di.sputing note was not > Held, that the promissory imtis must lie 1
an answer, it merely put in issue the annmiit duced or satisfactor'ly acciiuiitcd tnr lufdrel
claimed ; and that an order to produce obtained purchase money would hi; nrdciud t"
on pr;eci|)e must be set aside, but plaintitt' could even although a gooil title were siicnii. ij
obtiiii such order o;' an e.x parte motion on pro- ', v. (//cnii, 8 Chy. L'Sll.
per groiiniLs. Jtir/idvi/soii v. Biainiri', '2 Chy. I , ,■,„.,■,-, 1 •,,
-■■*'------ ' •' ' A plamtifT tiled a bdl against Ins assign!
representative for an account, cliai'giuijtlutf
tain mortgages then in lii;; inisst'ssiiiii, aii'll
parently belonging to the iissigiiije's estate,!
reality were part of his estate. ( hi iiiiiigstrf
with the usual order for tlie iini'luctionnfilol
ineiits, the plaiiititi' tiled an alliilavit, ulijitll
to produce the mortgages, on tlii' ;,'r"iiiiiljir
they were held by the assigiui> tlu iJaintl
trustee, and that he had a !(• n mi tlieml
nnmeys expended by him on acuiMiiit oftliej
perties covered by them. 'I'lu.' atliibit f
described certain other ilociinieiits in thi'|ilj
tin "s possession generally. Tlie aiiswir ilea
on information and belief, tliat the mni'M
•/iiirnsi/ii V,
Chamb. 54. — VauKoughnet.
Where documents are in the custody of the
deputy registrar in another cause, and are re-
tpiired at the hearing, an order for their produc
ti(m will be granted c.v parte, (ritlmr v. Duiili-,
2 Chy. Cluunb. 27!*. —Taylor, ,Sn-nfiiri/.
An order to produce cannot regularly be taken
out after decree. An order so t.akeii out on pr;e-
cipe was on motion set aside with costs. VultU'
v. ViiiiKiltart, 2 Chy. Chamb. 3!)().--'J'aylor, Sec-
rclur}!.
The deputy registrar will be ordered toatteml
at a trial with papers in his custody. Kut to
obtain sueh an order it should lie shewn that had ever been the property nf the |iliii
the papers reijuired are the original documents, | Upon the application of the duft'iulaiit. au
and that the production of ottice copies will was granted reipiiring pruiliu'tiim of the
nrtt be sufficient. ('hinlirick \. Thomiixon, 2
Chy. Chamb. 38!). — Taylor, Sccrilivij. See, also,
Jdjl v. Maalomll, 2 Chy. Chfinb. 71. — Vau-
Koughnet.
Where an aflidavit was a printed copy ot the
form in schedule K. to the orders, and referred
gages, and for a more particular atlidavit. Wt
v. Xeilil, 1 Chy. Chamb. 131. Simgge.
Three members of a vestry heing .iiil>i>iii|
building committee, and by it, one"f tlief
treasurer thereof, the treasurer, ln'iug sj
agent, cannot be compelled, in a suit by a r
Il337
us sclii'iluk's aiintxtil
t out in till' Hclicilnl.-jJ
.1 to 111' taki.ii nlitU
V. <'rii'iL.<liiiid: U.. jj
— Tavliir, S(rMiirii.
EVIDENCE.
\:i:\8
„f the ves
try on 1)L'lialf of liiinnulf nwX all in j; that M., in lireach of tlio arranironiciit, liad
IlitlllT IIH'
I (leffli
)or.i uxt'L'pt HUi'l! tieasui'LT, wiio was sull'iirud tiic i statu to veiiiain in tlio liands of I'
limit, to jirodiRv' i)a|)L'i'.s in his liands , douiiniunt.s liuld liy M. as assigiu:i: won; hold
i trf:Mll'i'l'
—tlio otlior nionitiors of tho ooiimiit- ; liaMo to jiroduotion. II
ossai y iiartios. Mtiiiiihuj v. (Uthill, ' 1{. KST. — llolniostod, YiV/'r
(iijiii r V.
Mh
(i 1'
jchy
rliiiiiih. 177.— l''Mtoii.
Tho iilaintifr"» oaso, foi' tho jiurposo of disiov-
Wliere
l)iiiiks wore in actual usoliy dofoiidant, i cry, consists of ovory thin;; nooossary to olitain
ilaiutitV, iluriii;; tlii'vivj]
tViidiiiit, |iiMihuiii; iii«
of haviii.; tluMii ]\\i<
idant to tlii'iiind.liidwi
of the s\iit. //'Hiv-iifi
ts diii:milcllts ill liis)i,(
liiiuiiil til jiviiiliKi tlien^
;asoii wliy In. slmiililnii
I's in liis liilUiiilncuiiimi
luld not 111' liilili,' t'ljitJ
io doing cro'.itu a WMA
Irii-ii v. A mill, 'J CkJ
jilaintilV ill oiniity istiil
t only <if thiit wliii'liio
, hut also iif wli:iti.'vut I
case SL't iqi hy the ik-id
of that lUsL'iivcry, t.itj
'UUU'iits as live iimtcriiilS
k'hi.'re, tlu'rcfiiiv, iiliilH
iniiig uiiiU-r a ili'visw.
tioii to ciiiii\ifl till: jir.iilij
ik'foiiilaiit swuiv tlut IL
not luado any viiliil willl
e was liiit of siiaiul i\if
,-ill was oxocuteil, tlic' ,
ho produeoil. i<«"'Vj
i3.
notes hail hewi ijivdij
•haso iiiom'y "1 liiii'l' i
1 arils a hill "was tlWlin
Inal pi'iiprii'tiii' a);;iiii-t r
lorii^inal imri.liiisi'i'. it '
lissorv noti's must in' 1
lV uix'oiiiiti'il till' lii't'iiri'l
[I'dd ho oriliri-il til ln'iill
I title wore shewn. ' V«j
It, !
Ii hill against his assiJ
■ aeeount, cli;\rgni!;tli;itf
|i in hi:. iM.ssessi.m,a!i4j
,n tho assigiu'e's estate^
lliis estate, (hihemgseil
f,„. tlioiiro'hiaiimiiliMI
I tiled an alliihivit, iililC'Cl
Itgages, oil the iivinmiisf
ItTio' assignee th.: vl™*!
Vo hail a n,ii (i« tlieml
him iinaoeinwt 111 tilt 1
them. The arti.l«it|
.horaoeninent-iuthqj
lerally. TIh' ansufr '1«J
■ holiof, that the miitrt
,,roi.ertv of the I'lai^
|l„f llieilefell.hmt.|i««'
[i„g vvnanetiniu'ftl'y.
l.KirtieuhiralhiUvit. ffl
Luh. 131. Si)i"W.
(f avostrvheingaj-rj
laud hyit,»>'t;"t«'«1
Ihe treasure.', hen. aj
luiielle'l. '"»*'"'■
iV' iiurt refused to order liini to inako voriliod a docroo, including what iii.ay lie roi|Hirod t(
,i;..s lit entries relative to matters in (|Ui'stion I answer the defeiioe set up. An aflidavit on
,,l.iiiititf s use
iif tl
hut where it was sworn on product
,(.mi'tet Die liliin
' \ ., i »i... t..f
titr, and not denied hy de- ; (ihjeeted to jiroduoo certain
lo hy defendant, in which he
l:uit,
<s of aooonnt,
that tlie latter had doeiiineiits so rela- i was iield insulliciont to iirotict them fnnn dis-
ivhiili were not nieiitioned in his aliidavit, covery, hecaiiso it did not state that tlu' hooks
iil'ilered to produce them. JliDomU v. ' did not eolitain evidenee snhstantiating the jilaiii-
It IVilS
r
Whore ii I
/I'lii/, 'J Cliy. Cliamh. 141.— Mowat.
tills' ease, or th.-it they only related to thodofi
hint's case. T/ir \\'i.i/i rii n/' ('hiuk/ii Oil (\
lit retused to i)rodU(!c on the i ,,. „ ,, ■,■, ,, ,,,, -„' ,„ , ,, ,
, i ■ 1- Wiilbf, () P. I!. l!tl.--(.hv. ( hanil). — Proud-
piiUlliI
lioii
thilt he iiad no documents in his ] losses;- ' , ,
liiit iis siieli lian
k agent, it was held th.-it lie
on appeal from Hohiiested, J'l/irn'
[M to se
t lint in his atlidavit what doctiiiionts ' A suit was hrought hy a married woman to
Itercsi
Ijj answer
in his iiiissession ; and it appe.iring troin w
hieli her hnshaiid was joined as a defendant.
tiiat ho had take
ilUlfl'l
,ist
trustee for the hank, and that lie had j tioii of
eyance to The jilaintilV tiled the usual aliidavit on iirodne-
,'iiiiients, iiiodneing all the doiuniriita
jertaiuiliieuniei
ts not mentioned in his aliidavit.
rilei'eil to jiroiliice tlieiii, although the tioii in ti
or possession ri'lating to the matters in ipii^s-
siiit.
link was m
, Aiiiiirti,':igee is n
it a jiarty to the cause. //•
)t hound to produce lii.s mort-
■i;til«il fill' the inspection of the niortgagor,
ihtii tlii'i'e is no i|uestioii of title in disimte
lll\J'liiimliirli-ii,
The defendant apjilied to
compel furtiior production, viz., of ihieiiments
which, it appeared, the defendant, the plaiii-
titl's hushaii
h.'ld
alleged that lie held tin
111 his possession.
It wa.s
loriinieiits for the
' ,, ,,1 , ,,„, fi. 1 iieneiit ot the plaiiitill, and that it was inlended
;U'hy. ( hainl). 4l".). — laylor, i ,, ,i , ., , '. ,, , , ,,...,..,,,....
to use them at the
vtlidavit will only he ordered ujion proof of ai
Meld, that a hotter
1-
A|iartv is not ohliged to produce deeds or; mission under o.'ith, hv the jiai'ty against w
tumiiits which relate to his own title, and do
jittdiil til estiililish the case of the party call-
It l"t
tile
1 1 I'm
Striiii;:
hietioii. Slonl v. Ciilc.i, 4 t'liy.
tho apiilieation is inado, of having otUor ilocii-
i meiits in his possession hosidos those alro.'idy
that a feme covert plaiiitill', whose
iiU
h
d is a ilofeiidant.
it hi
111 tn
pri
Iwheru a party having joint interest in docu- i production of documents hy her hushand for the
tuts with a stranger to the suit, has the sole henetit of his co-dofendants: and that the rule
J piis.sussiiin thereof, prodnetioii will not he \ respecting tiie olitainiiig of discovery from ji eo-
Bfiviiiuik'ss the suit he of such a nature that , defendant, jirotected the plaintitl's hnshaiul
xiiirt can say that the party having the legal ; from liahility to examination hy his co-defeu-
ItiJv siilheiently represents the other party i dants. Jirmrn v. Cii/iruii, {> V. \{. '20'A. — Cliy.
Wti'il. ^'ut '" **'"-''' ^'^^^ *'''" Polity ill whose Cliamb. - -Holmested, Ri;j\ni'.
itssiiiii theiliieuiiientsare, will ho roipiired to
i&i'uvery iif their contents, and to furnish
int'iii'inatiiin in his aliidavit, on production,
liKiiuielijiarticnIarityas was reiiuircd in aiis-
iin:'tlie inti'iTogatiirios as to doiniineuts, under
(c) Witliliiihlaiij hrfiiiiMi' Dorininiili* iiiiiillil (trr nut
Jl all' rill/.
IB.
,. ,, , ,, ,. , The iilaintiff had given .'iinortg.ige on a steam-
inner liractiee J-m.^irv Hon,,' ,.■< Cn., (, ,,„,^^ .J,,j j,,^ m„rtgVigee afterw^udssold the ves-
l 4o..-Uiy. Cliamk-Holmested, A <;/.,■,-,•. ^^j^ .^,^,j ^,,^ ,,,i,.,ti;,,i was, vvhother he was to 1.
piescioii was, vvnoiiier no was to iwj
ItlViiihint was nrdcrod to permit the iiispoc- j charged with the amount of tho imrehase money,
liytlR'iihintitf of the hooks in daily usi; in ' or luerely with certain seciiritiis received on the
ki'iulant's Imsiiicss, whieii he ohjeetcd to sali; in lieu of such amount. The defendant (the
iaci.' 1111 th'.it aeeouut, hut which ho was luii.tgageo's executor) ;idinitt..'d the possession of
ing til imiihiee at the hearing of the cause, a copy of a letter froiii the ni'irti^'agec, refusing
»'V V. ir/ii/d, ti P. 1{. I W. ^( 'hy. Ch'.imh. to join in the sale, aul an opinion of coiiiisol
rel.vting to the s line matter, hut alleged that
these dooumonts did "/lo/ ir/iilr to /In- /i/iiiiifiil''.'<
rung.
wmi'uts fnrnierlv ill tho jiossession of tho' i i.jj i. ii ii i
Biibt. anil lileil iiv iiiiii in a master's ollico \ ''"'' '"' ''":;■"'"■'' """''; ''.'/ ''"• '"'' : Held, that
Mlitv suit, were dirooted to he produced hy the plaintitt was entitled to production, as the
It upon his heing indemiiilied hv the phmitifts case and that of the dofondant wore,
under th.o eircuinstauces stated, so interwoven
and iuaeparahly eonnected, that uotliiiig eould
1 relate to the one without also relating to the
other. JliiiiiUtuu v. Street, 1 Chy. .3'27.
leieiulaut upon Ills lieing inileninilieil hy
btiii' ag.aiiist tho expense of (d)taining them
i court. Ih.
ail arrangeiiient made by one T*. with
reiliturs, hy way of composition, the dofen-
t M. hdil the estate of P. in trust to secure
Rimbursenient or indemnity of the jilaintiffs
lone H.,whii became sureties for the pay-
^nf the composition. Some time .afterwards
icamc again iiisdvont, and defendant, M..
ilMinted his as.i- juee. A bill being tiled
^uTO the arraiigeineut for indemnity, charg-
A party to the suit admitting tlie possession
of documents relating to the matters in ijues-
tion in the cause, the opposite party is jirim.l
f.acie entitled to their production, and the party
in whose custody tliey are, must assign some
ground for exempting them from the general
rule. The defendant having obtaineil an order
]. •{;!!)
EVIDE^X'E.
I (.
of course; for the ]iriMliic'ticiii of ilouuments in tlic i must bu nroihiood. Such party
lilaiiitill's ]ioss(,ssioii ri'lating to tlie matters in
•liu'.stioii in tin: c.uisc, tlie plaintitl', witiiout pro-
(huing any, Imliji'.l an adiilavit stating tinvt lio
liad no snrli docuini'nts oxccpt tin; title deoils of
till! iiropc ity in (|ll(^stion in tlie suit, and curtain
letters ail<lressed l)y the defendant to one K.,
who h.ad purchased the jiropeity fi-oni the de-
fenchmt, and wiio afterwards sold the same pro-
perty to the [ilaintitl'; that the suit was for the
specific iKM-forinance of a parol agri^enieiit )iartly
pt^rfiinncd and not admitted l)y the ilefendaut,
anil that the letters did not relate totlie matters
in (pu'stion otherwise than l>y adbrding evidence '
of tlie agi'ccmcnt and its part performance. The
afiiduvit filed in support of the motion, merely
said that defendant \\as desirous of inspecting coumnniications lietween
the letters in order to correct his intended testi-
mony : Held, tliat he was not entitled to tiieir
production
part of tlieir (contents by cuttiui; nut i,,,,,,,,
the letters. )\'iiii(iii\. ItntiUlri • I ■'rl,, i i '"
/ /. - I aylor, •Sicri'/nri/.
Cominunications between seliiitnr an.! ,'
are privileged, no iriatter at wiiat tiim ],, ,;"'
long as they are professional, and iria.l.. ji,'
fessional character: .Mchonald r, I'mi ,, ij
('liy. •_'.")cS, not followed. Ilin,,,l,/ii \jy; ,'.''
K. 143.— Ohy. (.!hanib.— Strong.
The following clause in an allid.u it
tion was ludd a suHii'ieut statenunt
of the documents produced ; '• | ii
duce the documents set forth in the
'■I I'f-
ot
'I tin II,
'jl''-'t t-.
«i'"illl4 tli:it l„
licitor aii,l tij,
nilrniwiiiLut nil
the lirst sclieclule, on the
S(
they are privileged." //<.
In a suit to restrain the
patent, the lilaintills olijectc
meiits describe<l as " profes.sional niiiiiiinij „i ii
writers of tluiUi," (wiio were eiininetrs "aj
the validity of tiie jiatent, tin; snhjfct matter
this suit," eiaiming that they were mivilt
couununications : - Held, tiiat diiciinu'iitsuft]
th'scription are oidy lirotected wliurc tlnvb
been ol)tained in view of or in aiitiuiiiatin'
litigation which has actually taken ]ilai.T, aij
which the discovery is sought. 7'o,v.ii/., (.Vni
J'iKii/ <_'<). V. '/'ii///iir, (i I'
- Holmosted, AV/'c/vi.
K. •2-2:. - 1 hv. Ciiani
lliiin-iitt v. lii'i-s 12 (Jhy. -.'(is.
\Vhatcvei- discovery a defendant would have
l)een bound to give by answer with respect to
documents in iiis possession, must now be fur-
nished by the aliidavit in answer to a motion to
compel jiroduction under the Ijjst order of May,
lSr>() ; and the giound upon which he relies to
excuse ])roduction, must be stated with the same
particularity. When, therefore, a party tiled a
bill claiming title as heir-at-law of an intestate
and callecl upon the defendant to produce deeds,
itc, and in answer to a motion to com[iel pro-
iluction, the defendant put in an aihdavitstatiny
that the deeds in his [lossession did not prove
the plaintitl's title, without furnishing any cle-
scripti(Ui so as to enable the c<mrt to judge of
the effect ])roper to be given to this general alle-
gation, such atlidavit was held not to be sulti-
cient, and ]U'oduction of the documents ordered.
^V(V//(,// V. Ellhitl, 3 C'hy. ,-)8(>.
A plaintiir seeking to establish a partnership,
is not bound by tlie defendant's view of the re-
levancy or otherwise of papenrAvhich he seeks ;
and altliough the defeudar.t swears po.sitively and papers, the proper UKjde of pr.KTOliii-ijl
that the ])aper.s have no bearing upon the case serve personally notice of motion td oi'J
made by the bill, the court will oriler their pro-
duction. Siiiiii<l<i;sy. Funiirit//, :i ( 'liy. t'hamb.
4<». Mowat.
(e) Oilier C'aM:-< rda/iiri h, /',■,;,•/;,■,
A party to the suit, liaving reeeiveil ]Hiti§
being examined by the op]io.site iiartv, is i
entitled to call tor the productidii nf miitRl
the possession of his adversary, ii; iiriiri
better to enable him to give his ttstiiiiuj
Jloirnilt V. A'ccs -2 ( 'hy. •_'i;«.
Where a party neglects to C(jiniily witlilj
terms of an order for the jirodiietimi nf l..j
J'liti'r.foii V. Iluirin, 4 Chy. -H.
Semble, where a defendant admits in m\
the possession of
swer tne possessnm oi clocauieiits, aiiu ml
answer to an (u-dei- to produce tiles an alblfl
excusing production, the answer ami alii'ii
The court will not act merely upon an allega-
tion, by a paity seeking to protect documents
from production, that they are not inaterial, if it nnist be read together. Mamuu.j v. f„;,;/fj
ajipear fi'om their nature, or otherwise, that they Chy. ('hand). 177. Estcn.
nuiy atl'ord nuiterial a.ssistance to the Jiarty seek-
ing prod\iction in establishing his case. /•'/".<<'/
V. //omi' /ii". Cii., (i 1'. J!. 45. — t'lij-. ('hamb. —
Hidmested, Itij'cm .
(d) WilhhoUI'inij vii the (Iruiiiid <if PnvUeije
Privaeij.
In moving for an cu'der nisi fiinhni-iimiliicl
in the master's otiice, the uiastcr's eertiticiti
to non-iiroduction nuist bear the latest [«
date. Siiiuiiii rriHe y. Jifyee, 1 (.'iiy. t'liauiKl
— Hstuu.
The notice of motion to take the altiilan^
production off the file.J, and to eeinmit fur J
, tempt, should be served on defeinlant'ss'Jia
A party called on to produce documents must | and not (ui defendant personally. Il<'-^>y.l'4
state distinctly in his affidavit on production, mhi, '2 C'hy. t'hamb. (iO.— Taylor, .Viov/rtiy.j
■what are the doenmenta lip seeks to protect, and ; ,, . r i ■ r J
the groumls on which he claims them to be | Motions for orders to comnnt f<inio'i-i.r.i(]
privilegeil. Wnijht v. Wnfteni limiintnee Co.,
2 Chy. Chanib. 403, — Taylor, .SVovVtn'//.
Letters passing between agents of a party to
the cause, although written as between them-
selves in contidenee, are not jirivileged commu-
nications or protected from discovery. Such
lettei-s are c<msidered in the custody or power of
the party in whose interest they are written, and 1 compel production or inspection. A luotiof
tion, are properly made in chaiiiljcrs, /*.
A party parting with pajicrs after servio
him of an order to produce, wa.s oiileit'iltol
duce them, to lile a better atlidavit, ami,
costs. II).
Under an order to produce, taken outli
defendant, other defen<lant.s have im rigU
m
m
EVIDENCE
l;?i2
rtlier
fwtti'iii; nut ii»rti..ii,^^B«ir'-'"n""',"'
iiil-itrcl, -t'liy. I'liiiiiiil
iittMiivit l)y clftViiilaiit, was uiiclcv siirli i Tlie )iliviiitift' Iiivh a lijilit tn fxaniiiie tlic <U'lVii
t,s. ,S'( (///((/(/)• V. I (laiit at tilt' fxaiiiiuatiiiii anil lu'ariii'' lit' tin; (.'aiisf
ces vv
tUSlMl
with
.(/,, SCliy. ClianiU. 11 -J.
:lVlnl'
illtll
ni,'li tlif 1
'laintiir
IV h;
licailv cripss-
iiicil liini 1)11 liis answer, ami cm an alliilavit
uon sdlii'itnr ami rti
r at what tiiiiu m.A~.,>
mal, aiiil mini'- iiiiijiH
uUiiiialil '•. I'miiuii!, 1|
//,f„(.-/;/» V. Il7i,i;.
-Strung.
Ill an atl'uliix it on |,r.hla^
t stateimiitiil tin mn
iu'imI : " I I'ii.iirt tM),
fiirth in tlio Kruu.l ],
1 tlu' grniniil that 1«
;cu sdlicitiir ami tlitu
n tht; iiit'ringcmeut ii\
)liii'i-ti-il tuimiiWi
nitVssinnal inuniuus h! til
1(1 WUIV OUgillfl'V.-, "J;!
;i.'nt, tlu^ suliiui-t iiiattrtj
:,liat tliry wurc \m\\i:»
:U, that (hn'illUflitsiiitll
lirntoctfil wlKTf tlli'vlu'
:w lit' (ir in aiitiuiiati'iiil
ctnally taktMi jiW, iiii'll
IS sought. Tifomi" '■'!
i 1'. K. --". -1 liy. rmij
j vinlht'j III l'r<ii'li'
t, having received ii"ti«|
tho npiiiisito viuty, isi
tliu prt"Uicti(iii »1 i«pj
(is ailvtrsary,
lini ti. givt '
y. -if.S.
lu(;ts to (-'"iinilyMi;!
tin: I'Voilmtiiiii "t 1'
mode of \ilMiailili:
ti(ju. of niotidU til oiffiifl
ly. 44.
ofcnilant aihiiit^ in }a-
,,f (locunK'iit>, ;miii
t,,, |ii-oiluci> lilf> an al&ll
tliL' answer awl a*U
KT. Moiir.'K.i V. rMll
Kstcii.
lalor nisi for ii.m-iiri«lKl
the master's iTiliIMtl
lUist heart!iulati;stl«
V .Ivii'-r, 1 (.'hy. t'liaiuM
u'f
ir
L>r 1
4('
lie
11
ir, nriWJ
liis tfSlillM
Tht alliilavit on i
iroiliietioii is a siihstitnte for ^*'
liieli he has made in tin; eaiisi
■/'//.
I'livery
oil mterrni
;atorie
jiaity IS en-
//(•/('/, 1 Chv. Chanih.
•247
Si.ragge.
•Ill/iyiiil v.
ii,l tn'siieli diseovei'V nii to the latest iiossihle
'"•"'.:. ..iii.'l....:i. 1....1 1 1.,..
late.
When
in allidavit hail lieeii sworn he-
iles,
n'vec'
on
litliersoiia
llv. /I'l-vJ"^
tit)
— 'I'avlor. •'"'■''
hU%
k to conini
kia<
Ic ill ehaiiili"'*
ith iwi'tv:
/''.
ftlii' serviee i
klilti
if an order tn ]<
it was
•2. At If,
iij (lliil Hi -III 'iriiiij.
\V
he irregular and insnllirieiit, ami a new
,„lK'ttfratliilavit ordered tii lie liled. Kniiiiih/ ,^,„[
Uml'il lii^iii-iniri i '
' !ihi4i r.
\ rU\ . Chanili. 4S!). —
I eaiise issetdown for hearing iilion hill
uiswer, exhihits may he jn'oved at the hear-
ing liy allidavit. Killiili/w ii'i-u/niiii, '_' Cliv. SI.
kiy
Till' pri'l
tion to UU tlio ailiami
and to eimimit mri
ffiulaiit s siilil
it fill' r.ii'ii'i*!
aftov servict
lyn
iduee, was
Ol'cll'K'l
better
atliilavit, »>
lo pv
iihice,
taken out 'f
fendaiits Iwi
Lr iiisvcctioii.
ler iiioilo of eimtradiiting an allidavit
I'lilL'tiiiii is hy eross-exainination of the de-
t hv eonnter-allidavit. Slriil/nnl
Do
•iiineiits use
d
tl
le exainiiiatiiin of wit-
kii I'ri
itut, ami no:
, Ihvi'
Hiiilii
II C
U L. .1. N.
:n;i.
nesses liefore an examiner, must In
in.irkiil hv the oil
l"'"l»
lei'i'.
and referred to in tl
Hy
Chv. ( ii:""
Ana
h. Hohnested, J.'i/i
tol
. nil ngi^
A inotiof
tliilavit on iprodnetion is not within the
„iii< iif order 'JliS, and therefore the jiarty
lilt therehv heeonie lialile to
lakinL'it. d'
evidence, otherwise they eaiinot he read at the
hearing. Ilnlliiiniuil v." \\'iilir-<, (i Cliy. :{2!t.
An ohjeetioii to evidenee for insullieieiiey must
he taken at the hearing, and eaniiot he taken on
a motion to viirv the iniiiutes. M,-/)i,iiiiii/ v.
iiniination niMin it, except so tar a;
lOSi'-l'X:
) lie hail hy
th
Hiinrll, S Chv.
!K).
examimitnin tor diseovery nniler Where a partv to a suit examines a witness at
iler IDS. "illy one examiiiatioii ot a party the liearii
uler in
iler 1.1S can
he had. /
th
lartv
illi
him eaniiot after
il.rlii
pi; 133._Clij-,L'liamh.- Hohnested, /t'l/i
exclude his tcstinioiiv from th
ide-
•ation
if till
irt.
iii/i,
M:ir/„//. i;{
iMiK ilecree, no discovery will he lU'dered
iji(l,a|i]i(;ars to the Court to he immaterial to
Ktiiiii to he tried at the hearing. Mi r-
(> r. It., .-ii. fhv.
|ii'i|nes'
/;.i.,/,' V. TUiliih',
mil.- lloliiie.sted, I'ifi rn-.
A iiiiitiiin fur a hetter allidavit mi produetiiin. \
;k alternative is that the jiarty he eommitted ;
(iiniailiiig tn lile the hetter atlidavit, is siih-
intiallv a motion
to commit, and therefore
fiiur ilays notice. Ahil v. Hill-<
f I'J'i -CliV- I 'lianih. -Holmested. I'ifi r
See XVII. 1, i>, I371>.
(i P,
Kvnii:\rE,.vNi)Ex.vMiN.vrioN ok Wipskssks,
.Vr TUI.U. 1)1! HK.MMMi.
1, Pinl'ii-t tl) Siiil. \
Wen a jiarty to a suit calls the opi)i)site i
(ty, lie is not necessarilv eoncliideil hv his !
}li,ii-\. Cull/, 10(,). H. .'Wl. ' j
toe after close of the plaintitl"s ease he is |
Ivrtil to exaiuiiie the defendant, this does not i
Ipen the matter, so as to entitle him to call |
let witnesses. ll'iV/v..-.' v. lli-alun, 17 l^h B. Do. j
ItW, Burns, .1., diss., that where a jiarty to ]
I suit is called hy the opposite party, he is not !
rtliyiiiaile a witness for all purposes, hut can
iexamiiied hy his own counsel, or the
iseldl his oil plaintill' or defendant, only as
jhiise matters upon which he has heen exani-
Iby the party calling him', Lmiili \. Wnnl, \
^. ii. 1)04; fiilliiwed in Mutiiol Fin' hi.-<. Co.
I'lflv. I\tl,ii<,- It al., I'O <.). K 441 ; hut
Ipnteil from ill Oi>/!-,so» s-. J'lnrli, 11 C. 1*. 14(1,
I'theCiimniiiu I'leas decided that a party
»lleil was made a general witiie.ss, and his
(aiityhy leasuuof interest wholly removed.
Ill, Blake, ('., diss., that where a plaintiff
Hues a ilefeiiilaut, whose interest in the suit
Chv. (id.-).
A l);irty is entitled to have an order upon
pra'i;il)e, to prove viva voce at the rediearing of
a cause depositions which had not heen used at
the original hearing. Cnlinii v. Curliii, I Chv.
Cliainl). 10. -Si)ragge.
\Vliere a plaintitl' sets down a cause for the
exainiiiation of witnesses, and serves notice
thereof on the other side, hut fails to ])roeeed
with the exainiiiation, this will not entitle de-
fendant to costs of the day ; his proper course
is to examine his own witnesses, as therehy the
plaintilV Would he excluded from going into evi-
denee unless hy leave of the court. WitUiiri' v.
MiKini, 1 Chy. Chamh. (17. -Blake.
The fact that a defendant in a cause has, since
the tiling of the hill, teni])orarily left the juri.'^-
dietioii of the court, is no ground for postponing'
the examination of witnesses and the hearing of
the cause. Iliillirnilh v. Onrini/, 1 Chy. Cluinib.
'J7!>. -VauKoughnet.
On a motion for decree, the plaintitT was aa-
siinied, for the purpose of the motion, to admit
all the statements of the answer of which proof
would he receivable at a hearing in term. Wilfna
V. Uiiisi'i/, 14 Chy. SO.,
At the hearing of a cause, evidence is not ad-
inissihle hy one defeiid.'int against another. 'I'ln
Alluriiii/C'iiii nil y. Tin: '/''inmln Slml llii'dwnii
Co., I.") eh v. 1S7.
.S. A/tir Uiin-hiij.
The particular.s stated, that are necessary to he
shewn in support of a petition to he allowed after
the hearing of a cause to put in newly discovered
evidence. Mnmn v. .SV/ii//, 12 Chy. 143.
Where after the evidence at the lu;n-ing of a
cause was chised on hotli sides, the court ordered
h that a ilecree for the plaintitl' must uece.s- the cause to stand over to add a i)arty, further
"iH-'iatc for the henetit of such defendant, evidence between the original parties wa.s lielil
saminatioiuloes not disentitle the plaintitf ' to be iiiadiuissible at the adjourned hearing.
'M arainst the other defendants. Mc- j Tlic Al/iinii'i/-(!<'iii-r<il v. T/ir Turoiitu Street
:«v. J/(ii^/-(,i-/, 1 Chy. ^(iS. . I linlliraij Co., 15 Chy. 187.
^c :!,:
ii-hr-
1343
EVIDENCE.
m
111 a pi-cKvciliiig oliarginy that the nidtln,,.
coiiiiM't with tlio ntlaT two ilcri'inlints |ii''i]
I jietitioii (if I'fvitiw. ' ilucti'd imil kept in udiiueahiiont tlic vliililr.
'I'lic o.mi't will not rofusu to admit ovidoiu'e
roofiitly discovorcil even after a oauHi; has liuun
Mt't down for lioariii),' on
Whuro a uausu is against the representatives of the plaintitl', the two defendants rplusiii j
a deeoased trustee, who had lieou defendant, the swer eertaiu ((Uestions put to tlieiii rMiMt
eourt in its discretion will exereise a greater de- ' the ehildren on the ground that tlif
gree of inilulgeiiee in the rectejition of new evi-
denee than if the original defendant himself,
who siiouM have known all the eireuinstanei^s,
was alive. Snnil/ v. Kccln, '1 V\\y. (.'hanih. 07.
VanKoughnet.
would tend to ren<ler them liahl
An applieation to take evidenee after hearing,
should he hy [letitinu and in eourt, and an aiijili-
cation made in ehamhers was dismissed with
eosts. Xhhnlltx. .1A(";/v , 'J Chy. I'lianih. 474.
Taylor, Stcrc/iirii.
to (,Ti]||i]jji
prosecution under the " Aet res]ieitiiiL; (,ir,,
ilgiiinst the person," 'V2 tk. Ii,'{ \'iet. e. 20: -lIJi'
that, under thtise eireumstances, tlio dcfi.T, i„u
wercMiot hound to answer, kntliv /„,,; .J
t'hy. 4!t7. ' '''*
I'laintid'tileilahill fo
to lie
if land
Ai>ldieation to let in evidc^
of a eanse,
Carrtiiliir v.
[.'fused
Ciirrli',
nndi
I) Chv.
Iiought as hi.s
ice after the heanng ^ j.uller, and the
the eircuiu.stanees. i strike out the
108.
<ir speeilK- |K'l'fnnii:iiio,.
II eontraet alleged to lie made wilh ililViidnti
. ^^ whicli the pl'ii'iitl
wasaliidder. 'I'hedetendant set uiitli;iti
illegal on the grounds st.iteil.
4. l\i j'liKiiiij /() A ii.tiri r. i
Tt is in the di.-*oretion of a judge at nisi ]irius
to refrain from eonimitting a witness for eontem|it
in not answei'ing, if it lie sought liy the i|uestions
put to elicit an admission of facts importing ]
scandal iiiion himself; and esiiecially so if the
witness lie intoxicated and not ahle to give evi- :
deuce at all. Dor d. Jfurr v. Mtirr, 3 ( '. I'. SI). '
A defendant, tenant in dower, is not compel- j
lalilo to give evidenee of the contents of the j
title deeds, Ike, under which he claims. Li/nr/i
V. O'/rum, () C. I'. •_'.■)!).
An attorney is not oliliged to answer as to :
contents of decd.s, &c., placed in his hands by i
defendant for the purposes of his defence. lb. I
A person sumnuineilas a witness in insolvency
proceedings, I'luinot refuse to give evi<lence re- .
sjieeting his own dealings with the inscdvents l)y I
alleging that he is a ereditm'. A'l //innillnn am/ i
JJai-ii, 1 L. .1. X. S. 02.— C.C— Logic.
On an aitplication made liy the plaintifls in an i
administration suit for an order directing the i
jiersonal reprcsiMitative to institute ]iroceediugs
to imiieaeh the validity of a judgment and exe-
cution rccovereil liy a third party against a
debtor to the estate, as being fraudulent and col-
lusive, the debtor was sub|i(enaed as a witness
in snjiportof the motion, and on his examination
touching the bona tides of a judgment in ijues-
tion, he thus stated his objection : " 1 object to
answer, on the ground that in this suit I cannot
be examined in respect of matters arising in an-
other suit, in which 1 am a party ; and also that
I cannot be exaniine<l in this suit for the purjioso
of tisliing out evidence upon which to found a
suit against me, and to be used on an applicati<in
in which fraud and collusion are clnrged against
nie :" — Helil, that this objection was not tenable,
and the w'itness was ordere<l to attend again, at
his own expense, and answer, and pay all costs
occasioned to the plaintiffs and the pers<in.al rep-
resentative by his refusal : — Held, also, that to
entitle the witness to privilege, on the ground
that his answer wouhl expose liini to a "penalty
or forfeiture," ho must state explicitly that he
believes his answer would have that effect, and
not merely leave it to be inferred that his an-
swer w-nild have that effect. Graiiigtr v.
Latham, 2Chy. Chamb. 313. — Spragge.
i ii . .1 ', "■ i''"i"i
rent; that the |,l;.i„titr „,«
sale illcg.'d. i'i.uiititrmiivoi
allcg.'itions as to tlic salt Vu
■ . - , 1 • '■' ■-'■■""'ill .11
iin])ertinenct^ : and ded.iid.uit iiiiivc;il tli;it tj
plaintitl' submit to examin.itioii, lie liavJH,,
fused to answer ([Uestions rclatiui; tn thi; all',
fraudulent features of the traus.actinn :-_f|,"
that the matter being matci'ial, was nut scaml
Ions, and th.it the iilaintill' nuist aiiswtr:
]ier i|Uestions. ./mns v. II iniiiiniihiii^ u
('hamb. 117. — Strong. .Sec hh-L-^un \- i;
Chy. ('hand.. ;U2.
I'rivilegetl c<innmniicatiiins, a- lictui'tu.ttj
ney and client. See ]). 1,S07.
Kefusal to produce privileged ddciuiifiits
p. 1. •!;!!).
.">. RifreshiiKj M'liinrii.
A witness uuiy, to refresh his nu'iiuirv, nftrl
.1 memorandum made ne'ir the tiiiir wliiiit]
event occurred, when the fact was fro.<li i
mind. Frdfur i-t id. v. Frii.-nrci (tL, 14 C.
6. ContrniJiclin<j ]Vitiii.s'ti%
(a) On CoUiilu-(il I.-<mr
A ipiestion cannot be put by a witness mi oiil
for the mere puriiose nf cmitrM
such (jucstion be rclcv.uit tii j
(pu'stiim be jiut. tlii' aiist
^/■/•/(iiw, tie. P.f
exaunuatuiu
ting, unless
issue ; and if such ipu'stiin
is conclusive, (lillnr/ v. (/.
A witness for the en
.•rowu gave eviiloiue lA
ditl'erent from a previous written stitm
maile by him to the prosecutui-'s unuiscl.
admitteil such statenmut when sliewiitiil
but saiil it was all untrue, and mulutusavtli
self. I'er Wilson. .1., tlie ]irn.s('L'ut(irs lotd
was properly admitted to di.sprovc the witii|
assertion as to how the statement taiiii't
made, for the fact of its being "litainnl
stated would tend very nuicli to iiivjiiiliciJ
prosecution, and was therefore nut a I'lillal
matter, Imt relevant. Uiigarty, •!.. iinlinej
. the ojiiniou that the witness having fully ail
' ted his previous inconsistent statemoii'i. m
tlier evidence relating to it sIkhiM have |
received. Reijimi v. Jci'nit d c'., il^].
Defendants called the plaintiff, aiulafterl
ing him some (piestious, pnidueed a ileH
made by him before a magistrate, whioh vi
variance with his answers. He ailiiiitt«(i
contradiction, but said his ])resent eviileiiod
correct, and .gave as an explanation that hi
l:iu|
i:!!.-)
EVIDENCE.
i;vk;
i that thi' iii.itlitr, J
(I ik'l'i'inlaiits, \m\M
llllUMlt tlu' I'hllilMio
iiilaiits iTlu<i'tl t(i jjl
it til tln'iii ivs|i,'rt™
ml tliat tliL'ir ;iMs«ti|
Ik'Im Halite tci ^■rillll[D
Act ivsiifctinniii!',!™
X\ Vict. c. iO;-lleS
stances, the ili^U'inlinJ
■r. K' i'h V. /.;;, ,■!,, ij
spocilic iici'fiivmancei
luailc witli ilil'i.uil:iv,tl
, at which the ii!iii,t|
iilautsct ujitliiit iiliiiitil
tliat thi' iiliiutity wiisi
'gah I'laiutitl'iiievoili
(lis as til the s;ilf W
statcil, as se'uiilul iJ
'ciiilaiit luiivcil th;it til
luinatii'ii, he haviiiij
lus I'chitinu t" theallfjl
the trausactii'ii ; -Htl(
iiiatci'ial, was imt saw^
iitilV must answer 111! (Ill
V. Iliiiiiiii'jilfii, ',\ I'hJ
Sec iJ'n'k'i'iii V. I',
icatiiius, a^ lietweni;itt^
). i:?o7.
priviU'giMlihieulllellts.
nhiiKj M''iii"i':i.
1-ofi'esli his meliievy, nic
e ueai- the time wlMiij
I the fact was I'vesli i:i '
I iiohciiiil""^^''' lit the time, heiu;,' witlmiit iia|icrs
hl'h 1"^' "■'■■''"■''I '" '■'-'''•''' '"' '""' '^''■''^ ''" '"' ^''i''
Lw.tiii tlicih'l»>siti(.ii : II.M, tliat tiiis e\-
mtjiiii wasa cdllatcral matter, and ilct'eiiilants
could not call tlie magistiati^ to ilis-
„,v 1, till III' r V. A'' /■/• ' / ('/., ■-'.'} i). U. .").')7.
] ,j^.^|,,issa)s'aiimt the sherifl' t'ortakiii;,'g(iiiils.
, TiliiiitilV ciUeil tlie liailitr uIki macle tiie
sale. He swine tiiat the iiiaiiitilf,
Iphll:)
IttlCft'f'
I'laiiitilV was called
did not tell !•:., de-
tlie l.liUitll
iM ■'iviiiu iietice (it Ins tdaiin tn the gmids,
uidi.lrew it and that the sale went (ill. The
l„i,,ill',illciv(l t(i di.spnive the withdrawal :-
W.1,1 tliitsiicii i;\i(leiice wan admis.-.ilile iiiidel'
IM r Act. fci'' -l-t. as relevant til tiie issue,
.li,m'heiiatr-iilictin>;tlieiilaiiitill"s(iwn witiioss.
S!te« V, it'lliiM^- •-'••! «.»• 15- -"H).
AotiiiiiKii « •'"■'■ l>"l><'.v
lu a witness, and said : '•
I, [.Jilts' aucnt, I had nut lieen Imined dut
efiir- ' "'■■'•■' ""* asked liv him. " K. was called,
liiiilit m;is prolKned tii asli him i|iiestiiins tn enii-
vli^t tlie plaintitl' (111 this jiuiiit : -Held, that
jioli cviileiice was imiperly rejected, as raiding
■ vlbt'-ml issue. MfCiillii'-h v. Tin lim-r />ii-
Cy\liit,hll I'll-' /lisiiriilirr <•<,., ;U (). U. :i!S4,
iiiimuyN. '■•:<•-' '.'•'«• '"'•'•.
\l^i-siili liavinj; a ]ia|ier title tn land nt' w hiidi
ikfw.isnnt the actual nwner, created a in(irt;,'aj,'e
IhertMii til a iicisnM nut a party tu a suit, hy the
urtvlieiieliL'':"'.* interested, tn get rid nf aimther
JKirtiiu'c created liy him mi the est.ate, was
kjktiii ho hail given iKitiee (it the claim nf the
J nwner when creating the tirst iiKirtguge,
Ljjjd, lie asserted he had given, and also denied
Lin.' made such nmrtgage :— Held, lint .1 enl-
kteniissiie, and that evidence was admissilile
bMitrailict him. (.'/•((// v. CoiicIki; K"i Ciiy. 4 l!l.
U'lrtinil iri'(if.'i.«c.».
I'oUitl, rill /s.iii'.
K'liut liy a witness ell on
Imere iiui'iidse nf eeiitraJ
liestiiin he vclev.nit to I
lucstion he imt, tlio m
•I v. (>'i."'/")-/"nii,IJr, P. I
leriiwu gave eviileme i|j
l-eviiais written stUtiT
|iriisecutiiv's eouiiwl.
Iment when shewn to
Itrue, and iiinle t" sivtl
1) ._ the pniscenfur's cod
■A to disin-iivc the witilj
th(^ statement erne t
.,f its heiug lilitiiuel
Lery umch tn \m]\\i\w
la therefore not a I'olia
Hagarty, .L.tix-'M
rwitiiesshavini; fully adi
insistent statemoiil, mI
L,' to it shiml.l \\m T
I the iilaintift', a«'li>ft«J
Lus, vroihu'cd a ik'iw^
a magistrate, wliifl"
Inswers. He aihmtt«
lid his present cviiiciiM
' auexplanatiMitktlil
The iilaintilV claimed as hehinging tn him a
ninrtgagc, w liicli was in defendant's nainc, and
h.id lieeii given fur the imrcha.se liiniicy of the
mnrtgaged land. The iilaintill' had liceu in the
Insnlvcnt ('niirt at mie time after the transae-
timi, and had swnin that he had (i.uted w itli his
interest in the liriiperty tn the defendant in satis-
faetinn nf a deht : Meld, that thniiuh there was
snine (not satisfactory) evidence in l.avnur ni the
idaintiir's present cl.iini, it was nnt snilicient
against this swnrii statement nf his nwn. /i'n.<,<
V. //.M.<, Id Chy. (i47.
Where witnc.s.so8 directly cmitradiet each
nther, the jiivsumptinn is, nnt that niie sjieaks
falsely, hut that mu^ has fnrgntteii the eireuin-
I o(;.inces. unless the facts directly repel such an
iassnmptinn. in investigatiii'! .i charge institu-
ted liy tli(^ eiiurt against a Jdlicitnr, and which
if estalilished would have jirnved nf a very grave
nature, the cniirt acted nil the alinve iirincijile,
and acei.'iited tin! snlicitnr's explanatinii nf the
facts, although distinctly eniitradict'd hy the
cliiuit. /ii rr 'J'liiiii, ill till' iiKilfi r III' M . ('. ('aim'-
roil, ',\ Chy. Cliaml). '_'04. — i^pragge.
(li) (lllii r Ciixis,
[WV.-e the plaintill", in trespass fnr cutting
i] iwryiiii.' away timlier, issue lieing jniiied
a nvee.itiou of license, called tlu^ agent nf
Itii'kint to prove that he had revoked the
:uic to him, and the witness denied siudi rc-
.tioii: -Held, that the iil.iintitl' might call
ler witnesses to prove thai they had heard
witness admit that the license had lieen
Mkoil t" him. and that the w itnesses knew
It 111' hml still gone nil and cut the timlier
r lie hail made the admission. Mr\iili v.
i«. (iO. S. 445.
'hintitf sued as cudnrscj nf a nnte. .\ witness
iliii'iue s.iiil lie thought the .signature nf the
irsev nut genuine. On crnss-exaniin.itinn he
ill whether two signatuies on a paper
mitidiini were the indorser's, and he said lie
laglitimt. Ill reply the plaintitl' pi-nved that
lywcTe, ilefendaut olijecting to such proof as
igin suiijiLrt of the plaiiititV's original ease,
iieeived at the trial for the purpose of
celling the witness, lint withheld from the
as evidence til sustain the plaintitl "s case :
that heiug .idniissilde fnr one purpose, it
miU'iice generally in the cause, and should
lieeii sii left to the jury. Hininl Vnnudinn
y. Brown etai, '21 Q. B. 41.
le rale that a distinct denial in an answer
itcmeuts made in the bill, must he contra-
il liy two witnesses, or by one witness cor-
wte.1 liy attendant circumstances, considered
acted uiHju. Boidton v. liobiiisvii, 4 Chy. 109.
85
7. * »Ilir (V/.ve.i.
Senilile, that the ]ireeise time at whiidi, iipoii
a trial jiartienlar evidenee may be introduced,
is fnr the judge exclusively to determine. l\oh-
iiixiiii v. /'ii/iifj'', 4 <,>. K 'iSil.
It is not admissible to ask medical witnesses
on eross-exaniination what books they consider
the best U[iiin the subject in iiuestioii, and then
to read such books to the jury ; but they ni;iy
lie asked whether such books have intlueiieeil
their opinion. Brmrn v. Sht/iinii'i/, 13(i>. H. I7S.
The prisoner's witness having stated that death
j was caused by two blows from a stick of certain
! dimensinns, — Held, that a medical witness pre-
1 vinnsly examined for the crown, was ]iidperly
allowed to be reealled to state that in his npinioii
the injuries found on the body could not have
been so nceasiniied. liniiim v. (I'lii/ini, 17 T. I'.
On the trial of an action nii a jiromissnry nnte,
brought by the ]ilaintitl's, a banking eorpor.ition,
and to which defendants jileaded usury, eonsist-
ing in the )ilaiiititrs making the note payable at
a distance from the place of discount, and thereby
seenriiig a Larger rate of intcri'st, in the slia]ie of
eoinmission, than they were Icg.dly entitled to,
the pliiintill's' agent was asked by tlu^ defendants,
in cross-cxaminatiiin, whether during the time
he was in I', (the place of diseoiiut) he had
dire('teil or caused any other note to be made
))ayable at any other ji'ace than I'. : — Held, that
the ([uestion was adnu. Me. Tin' liinik of Mon-
Irnil V. Snitt ,1 III., 17 V,. \\ 3,"),S.
The theory of the defence in an indictmeut for
ninnler, was, that the death was caused by the
communication of small pox virus by Dr. M., who
■ attended the deceased, and one of the witnesses
, f(n- the defence explained how the contagion
I could be guarded against. J)r. M. had not in
i his examination in chief or eross-examiiiatiou
{ been asked anything on this subject; — Held, that
he was properly .allowed to be called in reply, to
; state what precautions had been taken by him
to guard against the infection . Ueijina v.Sparham
I and Urecwes, 25 C. V. 143.
: i
Hl^
1347
EvMDENCE.
\m
AVlicii! tlij I'viiloiu^o was luit suliii'iiMitly clear
to ciititU' the iilaiiitill' ti) a diicrt'c, tlimiyli it was
aiiL'li iis irinli'ivil liis c(|iiity prolialilc, tliu court
jjavc liiiii till' option ot ail issue, or to liave Ik-
))ill (lismissu'il witliout costs. Ciiri'mc \. VhiiIhih-
kirh, I Chy. o.T.l.
All aliiilavit, in answer to atiidavits tiled in
rcjily, lileil utter an entargeinint of tlie niotion,
was lielcl rei^nlarly tiliMl, and allowed to lie read,
the court otleiiiii,' to ;,'ive the other [i.iity time to
reply to it, it' he reipiired to do so. /hirnry. <>ri\
JJiirarv. S/Kirliii'i, ,'{ t'liy. Cliainl). "2124. Strong.
A plaintiU" desirous of obtaining tlw; evidence
of a defendant who resided nut of the jurisdic-
tion, and could not lie served personally, paid a
sullicient sum to the dctendant's solicitor for
conduct iiioney, and moved for suhstitiitional
.service of a sulipo'iia on the solicitor, and that
if default w.is made in attending, the liill might
bu taken i)ro confesso. The application was
refused « itli costs. Scfldit v. Liiiii/i/, 4 Chy.
Ch.iml). .'t.S. Taylor, Jlij'tni-.
i'"ttlie
piMnl
«.n
iiiirin.
XU. Ji-
lAi., Oi-Kicr.vr., .vNii
llOCI'MKNTS.
(iriiKii I'rni.ic
1. Jinlijiiii ii/,^, Onlcr-i, (tinl Dccrte-i tif Fort ijn
Vuiiiin.
(a) Prvo/tif.
The judge's private seal is not eviilence of the
jiroceedings of a foreign court of justice, livmrn
V. lliulsdii, Tay. '-'T-.
Evidence of one witness that ho luul seen the
seal of a foreign court, and lielievcd the seal
nthxeil to the docliniellt produced to he the seal of
that court, and of another witness, that he had
lieeii to the oilice of the foreign court, and com-
pared the seal, wliich was shewn him liy an
odicer of the court, with that proiluced in evi-
cence ;--lleld, sullicient i)riin:l facie evidence of
the judgment. Hull v. AriiinKi; 5 0. S. 3.
A foreign jiidgnieiit eaunot be proved by a
certificate from the clerk of the foreign court
that judgment has been entered for a certain
HUin ill favour of the plaintiU'. Xnfloii v. I'o.tt,
5 O. S. 137.
The iii.Tc cxciuplitic itimi of such judgment,
if properly jirovcd to be under the seil of tiie
court, is suilicicnt proof. ]Viir' mr v. Kitn/.^inill,
7 V. J'>. 40!).
To prove a judgiueut of the supreme court of
the state of New \'ork, held at Watcrtown, in
the county of .letlerson, a copy of the roll was
jiroduced, ccrtilied by the county clerk under
the seal of the couiitv : Held, iusuiiicient.
tVouilnifv. ]y,illi,i<i, l'2\l li. M\.
Debt on a judgment rendered in an inferior
court ill the I'nited States. It was ]iidved that
the court had no seal, and the judge's book was '
Jiroduced containing the judgment, and his hand- ;
writing and signature proved : — Held, sutiicieut. :
Kcrhy V. Elliott, VI Q. B. 3G7. '
1
In an action on a judgment recovered in the \
tenth judicial district ol the state of t'alifornia, j
the plaintiU' put in evidence an exenipliticatiou
under a seal which jiurported by the impression
to bo that of thiifoiirtviiith district, and the cer-
tilicate of the clerk of the court verifying it was
i stated to be under the seal of liis djli,.
seal of the court : Held, that tlic
iiisutlicient. Jiiid'in v. Diir'n, 'JuM,*. j! .'(Vi'l •,
ing.V. C. (iC. P. 408.
I I'laintill' ]iroduced as evidence nf a juilmn .. j
! .against <lefeiiilant in the court of tlit- lixdicMu i
of I'leas in i'lngland, "'■'■'''!'''"/'"//,'/ 1 luivdt in',:
t\w hand of one of thi^ masters u\ that ('(iiiii.
Held, insuHicieiit ; and that the plaiiitilf sliipuiii
at least have produced an exeiiipliii,.,,tiuii imJ ,
the seal of the court. Ilixk'lh \ ll'i,/ p
1*. I!t0.
I'laintitl's ofl'ered no jiroof of idiiititvni fl •
dant with the person named in ila- juii-iii,jr J
Semble, that as ilefeiidant had plradtil m ,,,,. j
fession and avoiilance, this, cuupl,,! with ty
iileiitityof the name, was some eviileiicc. //,
Helil, that a vesting order of tlie Court c
Chancery of hliigland proves itself u\\ iir„lncL
tion, by the Imperial Act 14 & l"i \'iit. i. M|
and was therefore properly receiveil in uviiluMl
' CaliiKir V. ,Sc(itt, (.'(iliiuir v. Frlr, -J'j c. [■ -iji "
To prove a judgment recovered in [juvLrC:
<la an instrument was produciil, lu'aduil, 'd
vince of (^tuebec, district of .Montreal, suin.™
court of Lower Canada," and .Mttiiii; "lit i\i
judgment of the court, and certiliid u, luMtruJ
copy underthe hand of the pi'ithiiiKitarvaiiiltlii
seal ot the court :~-Held, suliiriiMit, uii'l-rC,
L'. C. c. 80, s. 1. It was also nhjirtod tl, •
judgment was not sullicient, as tlic doiLi, ,
had not been personally servcil witli tlic iirntj
in the action in the foreign cmn't ; Kiit llilj
that as defendant had pnicnicd li.iil to W m
in, and so obtained his freight, which li;iill>.tl
attached, the objection could iidt hu nixii
Tilton V. McKau, 24 C. 1'. i'i.
\ '2. Othi r Jitihjmiiilx diul /Xcm.-
j A judgment in an inferior court fur ,i sjuci
sum, is prima facie evidence in a sii[iuri(ii icuil
against a less sum only being due, and as r
spects the nun-its it is conclusive till iviu'llnl
proof sullicient t<i destroy the ctiect nf ,1 tortid
judgment as evidence of a debt. /'n./. v, 1'^
1(111, 1 (). 15. l>,-)4.
A defendant in assumpsit plradi'il in ;ili:it{
nicnt a former action pciidiiig. and tlu' plaiiitil
r<'plicd mil tiel record. 'The dixdaratioii iiitM
lirst action contained only a cnnnt fur iu"ii(j
had and received ; in the sccinid a cdinitmiM
count stated was added : Held, that the rrp|
cation was not siip[iortcd, and thit dilVinlai
was entitled to juilgmeiit. ll'iin v. Hiiin.
q. n. 07.'.
The production of the original iiuliftiiieiitisnl
sullicient to prove an indictnieiit fipr ftimy;!)
a record must be made up with a |iriiiiiTv:iiitid
i/tiiri/y. Liltlt' (till., 11 (J. K '2%.
Judgments may be proved at nisi iiriiHiivpn
duciiig the original ndl, as well as liy iXt'i)i|ilB
cation, but the clerk shmild nut |in)diKv su|
ndl without proper authoritv. /'"'< /wi/iv. '/»
1.'4 t,>. B. '-"Jil; >Slu(in v. Whulvii, 15 C. V-M
In an action by the plaintiff for wages oarnj
a.s a lumberman, the dispute heiiij; wLtluTa
jierson hiring him was the defendant s aijeM
the defendant pleaded a set-oil', and at tlio t«
attempted ^o prove under it that tlie I'liimi
EVIDENCE.
1350
(if liis iilli'v, ii.it thel
tlllVt till' \iruui *,yj
7.1, •.J'J (,».!'.. ;W.i,utlim.
iiU'iuH' 111' ;i iuilyiurtl
lurl 111 tliu l'Ailk'.|iij|l
»'((/<''l/l.'/lllUlVlil' llltlrtl
istei'.s til' tluit l-iillll ;-|
,ivt IIh' lillliutlll >llul
oxciiniiiliiMti'iii mi.ltfl
li:.-<blli V. ir-ir/, i:i',J
)of cif iiU'iitity "1 lU'itu.!
liU'ii in tlie juil,;;iiwt,|
lit liail jilcadi'il iiiciiB.I
his, i'ou|iUil with tliij
i simu' fviilfiK't;. ik
(ivilor nf tile Cimrt (
rovfs itst'lf (111 \m«W
Vet 14 & ir. Vi.'t. i.'Al
cly ri'L'oivfil in fviiluncej
V. AV/r, li-iCl'. "iM.
ecDVcvi'il in Luvwi'I'ms^
ii'oihu'i-il, hrailucl,
it of Muutivul, suivnol
;V," illlll M'ttiug "lit tkd
;viiil cortilii'il toliciitruJ
tlio prolliiiiiiit;iry:iiiiltii(|
,il, sulliciriit, uii'l' vT
ilS also oliji'Cteii I
ilk'ii'iit, as till' ili''.<-i
y scrvcil witli Uu' I'M"
i.reiyu court ; Imt Hill
I jiroL'UVi'il liail t" 111
i fi-fij^lit, wliii'li lu'l
m couM nut lie raiaiy
r. m.
mills tiiiil Dici-iff.
uforior court for ■\ sveeiS
lU'UCt; in a suiierinr om^
ily l>eiii;i 'l>"'' '""' ''*'
,oiiiieluMvctillrqii.'lliil
Iv.iy the ctVfi-t Ml A t.iraa
lof a .Iclit. I'o'.l- '■■ 'H
lumi
1 (IL'U'
I. i™.eiveil ijoikIs from tho store at the shanty : |
"u ,1,1 that it was allowalilc to provo liy iier- j
workiiij; witli the iiiaiiitilV, that thoy hail i
If"' .^jii iiy tliiMlcfonilant on aiipiication to him,
I itlwt in suits Ill-ought l>y them ajjainst him t
iriiiJli-iiilnioney into eon rt ; and that tho jinlg-
I iin in sacU suits were also ailmissilile, though
wMc^^'ry. 67Mn,Wv..Vro^M'7(i. B. -27.
Action liy A atakeholtlor, alleging that he harl
kit liver the wager to clefenilant, one of tho
F^j.(j^,, „ii his agreeing to iiuleiimify him ; and
Uj, ij.', tlio iither i>arty to the wager, sued and ;
a-iiviwl juilguieiit against the jilaintill', Imt that
y ;.|„|.i|,t iliil not iuileinnify. Uefendaiit pleaded
jij( [|,y nlaiiititt' falsely representeil to him that
gl^diKit (leiuaiiiled the w.-iger from him, and '
uiat on llie fiiitl' "' sueh statement ho promised
Icinikniiiifv. Tli>-' plaintitl' imidueod an exem- 1
Litication ii'f the juclginent reeovered against him i
Iv li- ti"^' lilci"l'"J-''' aiul issues in wliieh shewed
i^jt tilt jury must have found a demand hy H. |
Iliis. it «■:'•'' contended, was evidence of such
Utiiiiuiil in tliis action; Imt, Held, that ;it all
fcwiiuitwiiiilil not prove defendant's plea, which '
Irisiiotsuiiliortcil by the othor eviileiiee. May- \
V, Tudfi,, i!7 Q. H. -tW- i
J Priiiif of ■hlll^'Ulent on issue of nu! tiel record,
•■Jllit;.ME.NT."
^it pliMileil ill^''^
linu. ami the lilaintl
he'ilcclawti.iii "ilij
only a count I'ov wni
the sccoml a cnnntoiu
Ucia, tliit the rifl
ivted, ami tint ild*l.'f
|eon"inaliiiiUctmoiitHn
Indictment for teliiny;
. up witlialiri'l'ei"'W
IIQ. ll.» i
Loved at nisi v™s''>i;!|
|l as well as hv exemvl
IshouUl net l'i-i"t"^'^;''J
■hority. /''"";:'";-,;1
Ipiaintitr for «f ;••;"}
Ilisputoheini^A'll'^'j
L the 'If -'"'f \\,f,3
Lderittottbeiito*
3. Proof by Copies and Extracts.
i Sworn collies of exhihits tiled in the crown
facanmit lie received in evidence ; the origi- -
jsliouhl lie produced. Molsun v. McDiiiifll, >
I
I Papers liled iu court should not he soiit away !
( W used ,19 evidence at Nisi I'rius, unless:
ikn the originals are essential, and the Jiarty j
jilyiiig to have them transmitted has some
lilt in tliem, or the interest of pulilie justice
huire their tr.ansiuission ; and in that case the j
livrs siiiiling should take a voucher from the !
Iw rweiving them. O'ai/iwi' v. Salt, '21 Q. j
|180. " :
[in ,in aetiou for a nialieious arrest, an ex.ain- I
kl copy of the allidavit on which the arrest
ampule, coming from the hands of the proper j
Iceraiiil shewn to have been used in tho cause,
liutheieiit to jirove that it was made by the
■tuilant. ,s'yii(i/'on/ v. liiu'lnuinu ct al., 3 O. S.
|1; Fihjuvldv. ll'cMo-, T. T., 2 & .'{ \'ict.
el(i, altinning Spatford r. I^iiehaiian, .S O. S.
, that in an action for malicious arrest on a
[a., the atiiihivit is sufHeiently jiroved by a
jy 111 the original liled in the erown oliice ;
ithat the identity of defemlant with deponent
! l)t \iresuinod prima faeie from tlie name.
Vtm V. Tlinriii', 18 (I B. 443.
lln ,111 apjilioation for the discharge of a person
bstody under the Ashburton treaty, certified
pes of deiinsitious sworn in the United States
fcr jiroeeeiliiigs had been initiated in Canada,
] after the arrest in C'anada, were heM admis-
ecviilenee before the police magistrate. Ex
'f-Vni/iii, 4L. J. N. S. 198.— C. L. Chamb.
Morrison.
F}' piiUic document filed in a public oflica
5 government, may be proved by an ex-
lacileopy. McLean v. McDonell, 1 Q. B. 13.
The production of the registrar's book in wliieh
a memorial is recorded, is good evideiiee of tha
title being a registered title. And Semble, that
the registrar prodiieing an examined eo]iy from
his book, without either his book or the memo-
rial, would be good evidelue. Doe d. Prince v.
Girtji, y q. B. 41.
A eertilicate purjii rting to shew the registered
conveyjinees of land, from tin: laiunty ri'gistmr's
olliee, under the hand of the deputy registrar : —
Held, not admissible evideiiee of the title, under
the 13 .t 14 \'iet. e. 1!), s. 4, so as to shew an
ineumbiMiiec on the land. (Iiuiililc v. McKtiii, 7
('. 1'. 31!>.
Held, that an abstract of the registries upon
a lot, shewing a patent, was clearly not sutlieient
evidence of the patent without an exempliliea-
tion. Quu'ro, is an abstract receivable in evi-
dence at all, if objected to. Itieil v. I{aiik.-i, 10
C. l". •->0-.'.
Copies of memorials eertiliod by tjie registrar
are evidence of the contents of the deeds. Lynch
V. (>'//, tin, (; C. 1'. i>.")'.t.
.\ eertilied copy of a ]iowcr of attorney to con-
voy l.uids, from the depository of notarial rocoids
in Lower t'aiKula, under the corporate seal of
the board of notaries of Montreal, is admissible,
it being presumed that such power, although
not in itself an oliieial doeuiiieiit, came otlicially
into tho hands of the notary aiucmg whoso
records it was found, dmy v. McMillan, 5 C.
1'. 400.
A certified co]iy of a patent taken from the
books in the provincial registr; "'s ollico, and
signed by the deputy registrar, is not suflicieuf,
,as primary evidence instead of an exempliliea-
tion. Prince v. McLean, 17 (-). B. 4(i3.
Semble, th.at an admitted copy of the field notes
from the Crown Lands otiice, may be reoeivod in
evidence. Jkie d. StnuKj v. Janes, 7 (i- B. 385.
A certified copy of part of the field notes of
the original survey is admissible in evidence.
Varrick v. JolinMo'n, "Jl! Q. B. (iO.
An assignment of a .sipiatter's right in tho
crown lands olhee is not "an original record" or
"original memorial" reipiiring a judg'j's onler
to the comniissioner of erown lands to produca
it. Met; Hire v. Sneat/i, '2 L. ,1. 184. -C. L.
Chamb. — Hichards.
The .3'Jnd rule means records of the court and
niemorials in the hands of tho registrars. Jh.
Defendants' secretary, called by the jihiintifl's,
produced copies of the proceedings of defen-
dants' London r.oard, which he said had been
sent by them to the boaial here as such copies,
but which lie could not prove otherwise to be so :
— Held, clearly suflicient. Caininercial Bank v.
Great WeM, rn liailieay Co., '22 (^. B. 233.
Semble, that a conviction returned under the
statute to the Quarter Sessions, and filed by the
clerk of the peace, bocomea a record of the court,
and in.ay bo proved by a certified copy, tlralianl
V. Mc Arthur, 25 Q. B. 478.
A [ilan was produced from the registry office,
aworn to bo th.at furnished by tho commissioner
of crown lauds. It w.as headed "CardilF," (the
name of the township, (and at the bottom was
written "Department of crown Lmds, Ottawa,
'
m.
13.-il
EVIDENCE.
Nciveiiilicr, IS(!(!, A. ItiiMsfoll, .'iHsistaut ('(iinmiH-
hidiK^r," wIkwi' MiyiiMtiirr wii« proved ; Hilil,
siillH'ii'iitlv I't rtitii'il, jiiul ri'cuiviililo in evidt'iui'.
yirh„U„ii'\: /'(III', '21 >). IV ;{18.
A ciipy lit' ;v iM'titiiiii tn tlu^ iuliniiiistnitor iif
tlio j,'ip\ I'limii'iit iTitilii il l)y tluMlcik uf tlic I'xi;-
cutivu i,'(iiiii<-il, iiurpnrtiiiy; to liu sij^'iU'il liy iicli-
tioiioi'H, oiiu lifiiiji a marksiiiaii, tlicLiiilorscnicnt
slifwing tli:it it w.us riHn'ivid <m tlio loth Miiy,
IT'.'T, «;is lu'lil ailiiiis.silili' iis I'vidfiKo, witlumt
proof of tile MigliiitiU'L'. Minitiiiiiii' n/ v. (.Irnham,
•M g. II. iu.
Ill trespass to laiiil, <lefeii(l.iiit jiistiliiil umtir
an iiwanl of I'eiice-viewcrs. 'I'lie township eliik
profliueil ;i eopy, which he swore was a triK^ copy
t)f tlie award, the origiiialheitij.; in hiseiistody : -
Held, tiiat sneh eopy was adinissihlo in evidence
under ( '. S I'. ('. ■'. \V1, s. (!, these awards lieing
made liy a statnalilt! pnhlie ollicer aetinir in a
judicial e.ipacity, and w hich might atVeet a large
portion of the pulilie. and even niuniciiialities.
iSeliilile, per Wilson, .1., that if the eopy had lieeii
one delivered liy the fence-viewers nndertlie stat-
ute, it might have heeii received witiiont proving
it to he a true eopy. Witrviu v. Jti-s/i/i/ii-n, H,'{
Q. J{. r.!».
Wlieiiueause issetdown lor hearing upon liil
and ;inswer, exhiliits may lie proved at the heai''
iug hy allidavit. Killuli/ v. llrulniiii, '2 Chy. "JSl .
4. Olhi )• ('ii.-<(\<.
The certiticate of a commissioner for adiiiinis-
teriiig the oath of alh'gianee, is evidence (after
his death and that of the jiarty t.akingthe oath)
that such oath was administered. Dor il. Mc-
Fafliini: \, Lbiiiiiiii, lira. I'J.S.
A continuance I'oll found in the jiropor oHice
and entered and lile<l there hy the proper otticer,
is a recoril of the court, altlnuigh not compared
with the papers lileil in the cause. I'.arol testi-
mony cannot lie received to cinitradict tiiu roll.
Printkf \. llnmiltnii, Dra. IWS.
Suinhle, that <a certiticate of a registrar of tl)e
discharge of a mortgiige endorsed on the iiiori-
gage, is sutlicient evidence of a reconveyance,
without proof of the execution of the discharge
itself. hueiX. ('Diikxliinikw l[iiiiilivri<tonv,(>0. !S.
103.
The ooinnieiiecmcnt of an action may he proved
l)y the writ of ca. re. 'I'lu! minutes of the i lerk
of the crov.n or his deputy on the writ, marking
the time of issuing, is prima facie proof of the
fact, i'ppir v. Mrl'iir/iiiif/ <t II!., iiQ. H. 101.
A party who had lost his jiatent for land, will
not he allowed to give jiarol evidence of its con-
tents ; he must luodnce an excinpliticatioii of
the patent. McCnlliun v. Duns, 8 (l B. I'lO.
The production of the original indictmont is
iiisulHcient to ])rove an indictment for felony.
A record must he made up, with .1 proper cap-
tion. Hatrn V. Linlc, 11 (l \^. iOti.
In an action for maliciously and witlnnit
probable cause, arresting the plaintifi" : — Held,
that an cxemplitication by which the indictment
appeared to have no general heading or caption,
was not evidence sutlicient to sustain the action,
Aston V. Wriijld, 13 C. P. 14.
Held, that upon a (|iieMtion of tiiu ,1.,.
\<iter, the written return of the ciir^^rvinii iJ
married his father and motiuM-, irji'l',. n,,!.'?
(ieo. W . e. .'til, w;is lietter eviilmn. iln, '.'j
memory of individuals unacccinipain' ,1 1,, J
memoranda. /oi/. »■.'•. /v /. /•'in'irni'il y /;,'., '
( '. I'. M-A. ' ' '"■
In an .iction for the m.'iinten.uicc df nij jli >
timatc child, the :.tlidavit was priNhi.i,| /
the otiice of tile city clerk, and liin-piiit,,! t,,|
sworn hefore the polices niagistntr oi Tuni
where the ilcpoiu'iit residcil : lldil^ Millj.i"
evidence to go to the jury that it was 4,.|„„jJ,
by her ill the propel' olliee. ./ihi'sun y r
'Mi), li. Ml.
Upon a question ;is to the bninidariisiifa«,!ir^
section : Held that the niiip pniiuivil hv tS
township clerk, under sec. -i;) of tlir Sclm,,! \i
('. .S. I'. (.'. c. (i4, shewing tli<' ilivisi.iij i,f tH
townshi]! into sections, was ;idiiji>silil,. ;„ jj
deiice. '/'/(<• ( '/liij'Siijieriiitciiili nl ni' Kilihu\l',„„
S/iiiri'i/ mill T/ini.i/ii r il iiL, :!0 </ |i. ,"1114
A book was pro<liiceil, dated '.Mil, Jmn. \^4
signed by the surveyor geiu'rai, ciint,iiiiii]i;alj
. of grantees and the lots granted, with tln'mn
; her of acres in each lot, in wliicji this jut 1
peared, with tlu' name of V.. II. ii|iiiiisit|. t„
and the letter |). opposite lur ii.-niic ; iimlitj
' shi'wn that the lot was granted \„ |i,r in |.
! -Meld, sutlicient evidence that tiic lot haill
returned as dcserihed for patent, th(p|i"h tJ
was no heading to the hook ilcsciiliin^. jt,
jeet or object. Jinii.-i v. Cnirihii, IH H. H ;
atlirnied in ajipeal, H(i (^(. 11. 4!l.'>.
Land marked out in tiic ori;;iu,-il pjn, ,J
township as an allowance' for a luad, ijui
lose that I'haracter bceaiise it lias iii'Vori<(
used as a road for forty years ; ami a coiivnfj
plan certilied by the surveyor-general is,iili
sible to prove such allowance, aJtliiniu'li it ilJ
not apjiear by whom, nor frniii what materia
the j)lan was compiled. Mac.iidav, .l.,ilissiiitia
I Jiiu/ijiliji V. Jii'iii/ci; ;i (). ,S. liL'l.'
I Defendant put in a sworn aiui exiiiiiiiicilcfll
■ of the original inaii from the oriiwii hwhi
partment of recent d.itc, ainl eimt.iiiiiii^'iled
i (hint's name Jis entitled to tlic tiiiih.'r hiiiit-sj
\ jirove that the creek vis within such limitsf
i Held, that this, cou])led with tiio lact tliati
I had been for many years in ]i(issessiiiii ulT
I timber limits, cutting timber tiiereini ami |
' pro\ ing the same, wa;i sonic eviileiiir tn
. piry that he was not a mere' iutnuk'i' niil
rights of the crown. W'/irluu v. .Ud.n'li
1() C. v. lO'J.
Papers tiled in court should imt Iw stiitai
to be used as evidence at Nisi I'l'ius, iiii|
when the originals are essentials, and tljt
ap])lyiiig to have them traiisnntteil lias :
right in them, or the interests uf iiuhho jiisl
reipiirc their transmissimi, ainI in tliati«|
ofiicer sending should take a viiuiiioil'r"iii|
otlicev receiving tlicin. (Iiniiinr 'I til, v. Sullg
y. B. 180.
Where a probate is useil a.s eviiii'iiot'. ui
C. S. U. C. c. 1 (), it is evidence nl the tostaa
death, as well as of the will. Anwi/iij
Van Xunnun, 30 Q. U. 4^7.
A certificate of a de]iuty clerk oftliefiJ
of the date of the tiling a paper, iii thcsbpel
11353
jstidU Hi' tlif a^c iiii
(if till' clrru'villuiwlijl
inotlu-r, nriili' iinlirl
tiM' fviili'lu'i' tliui ;y
,lli;wc'iilil|i;uii''4 l,y aiii]
/. /'(iCIl'ilci/ V, /,'ii,l.i,
,talc:ir(l, i.i "" I'Vi'li'iu't
./„/„
EVIDENCE.
jilllil/, lU't'DllllKUl
V th
:o.-i'. 1-. «
— haltoll, ('. (.'. il- /*. 1>V tllU l'\ ilU'llCl! Mut out ilt tlU' I'i!
1 ;'..-) i
'ii'iii (IcimI WilM lint Hllxtailiud
Orsir V,
1), .limit
nts imcil 'I" till' oxaniiintidii of wit"
1\
r
14 (,', I', ru-x
oliirt' iiii
t'x.iiiiiinr, iiiiiNt 111' III
,1 liv the cillii'i'l',
liiopcrly
'I'liu imMluctioii iif a lU't'd thirty ytvirs nlil,
1 ri'l'tiicil til ill till' l'il''|"'l'tiiiy tn liu i'Xi:oilti'il iimli'l' a imwiT of
iiii«'i '
thii'wi.-iL' tlu'V (Miiiiot 111
,<l at till
aiiitfiiatii'i' of iiii \\]f.iM
,vit was iniiduiiul fr-ii
I'k, ami iMiriHiittiil t..
I maijjislntr nl 'i'uriintj
siili'il ; IK'M, KiifeJ
iry that it \»as ilniiwtj
lice. Jlll■l:.^i,ll V, /in.
th>'liii"iiilarii'!<iif asrhni
ic mail !'i'i'l';iiV'l I'V tlJ
wc. A'.^oi th.' Si'liimJAJ
viiig thr ilivi^ii'U lit tl(
t, was aihiii>--ilili' a? isj
■IIiIiIkIi III III' A,''/l/i'll/Jii)l, 1
I (I I., :to <y. U. .-104.
■il, (lat.'il •J-ltli.luuL', IvJI
1' gfiu'ral, cuiitaiiiiiis;^!
its granti'il. witii tliimii
hit, in wlni'h this li.t i
u; (if I''.. 11. I'lilii'siti'tii
iinitf her iiaiiu' ; mulin
IS jj;raiiti'il tn her in bl|
lU'iU'i' that tho lilt haill«
I fur jiati'iit, tiiiiiigh m
,hc hook lU'Scviliiii^it'
:i V. (Jiiii-il'ii, !H *l IV 'ii
li Q. B. 4t)r..
; in the original \i1,hi ii||
waiu'(; for a ro;ul, ilm
[ lii'i'aust' it has iu'vorH
•tv years ; ami a cuiiynill
sn'rv('Vor-i;>'iii'''''l '*^'''
allowaiK't', althimL'hitilJ
11, nor from what iiiatcrij
Ma('aiilav,.l..ilissi-'iiti^
;u>. s. •J'Ji."
sworn ami cxaniiiioil ci|
from the crown l;«iil:
ate, and coiitaiiiin;.' ilefj
,,, to the tinihiT limitsl
w-is within sii.'h lim'.Hl
iloil with tlu' lact tkitj
years in liosscssiim "IT
nj; timlii'i' tlu'i'i'iiii aiiili
«va;' soiiii; t.'viih'"<-'i' tuiij
,t a int'rc intriuki'
U7(.'/(i» V. ildi'fi't
lirtshonhl iiotlu'si'iita^
^;ncu at Nisi Vm^ n
U'c essential, ami tlic
lu'in traiii<initti'il luu Ml
intrrusts ol imhlio j«sl
nis>.i(in, ami i" that c«l
ll,l take a vuufhorlri'iiil
li. (;,(i/m<''i' (if. V. 'Villi
is used as eviiU'm'o, ai
is fviiUaicc 111 thi' t««||
If the will. /'"'•'■*'"'
B. 4;?7.
doimty clerk i^M
|ingai>ai.er,iuthi'>lui*l
Itariiijj-
//,/////»•<((/</ V. irif'-'/'i, (» t'hy. ;)'-"J.
Xlll. I'lllVArK DdlTMKNTS.
ttoriicy, iloL's not prove the |iiiwt'r. In thin
oase the only proof of authority was the pro-
illletioM of a paper professiii;^ to li>wi copy of all
unsi'aled (lower of attorney, ilateil in Mi'Ji, and
rceeived liy the piaiiilill "s attorney fn
th
1. /'Ill
Till- i|ii''''"
itiiiii heiii){ iw t(i the limits of (lefeii- Mullf
of the person a]ipoiiiteil hy it, sinee dead
Held, eleariy insnllieieiit. ./nins it nl. v. J
, whieli niii
Ihlil, that as
from Saiiiiwicli to Wiiii
nits hail lieeii
thi
, tbi.' til"'" "
f W'imlso' when the defendants ,.||t
Mr
i). \i. :.i'.
if il petition to the adniinistiator of
•rniiU'iit eertilie.l hv tlu! clerk of the exe-
I'V
ive eouiieil
part of |,K.|,t sh
inimoiily called Windsor stooil, hid M,iv, I7!I7
iti'il Wiuilsoroii a plan which he had lileil
.hi
itry otiice, and reterred to in giviiii,' i;,-iili
til the popular iiiiderst indiiii,' as ti
;!i o. H. .-.
limp
irtini' ti
SrerciiHi'i'l""''''^'''' "'" ''"""'' w.iuld look to what pctitioiiers, one lieiiiL; a
iipiiiiit'tiir of the land on wliic' - ' ■■
>fii;it w i\'''.
J till' ri',-''
^■lls ; anil
li,t I'linstitilted Windsor; and that, taUiii;,'
■ iai't" as j;uiih'S, it was (|nit(^ clear that the
Mil hail hi'i'li cxteiideil into the town, .'iiid a
ijiti' plaued within the limits. Dini'inll y.
V\,.' \iinlii''ii'li mil/ Wiiti/^iii' I'liiii/: mill llntnl
|„„i/(v., 12 ij. ]'. r.i).
_\,ii;,]ilir(iihu'ed from the custody of the son
[tlk'iiri-i'i'd owner of tlii^ lot, and sworn to
he iiiali iil"in which the township was oriui-
itiii;,' to lie signed liy thrco
iiiai'ksnian, tlie cinlorsu
d«
that it was received on the l.'ith
idniissilile an evidence,
ithoiit proof of the signatures. Mniitijuiiii ri/ v.
Ultlll'l.'.
Held, to he pl(ip(
Villi Ki'i rii V. l)nihi
See, alao, XII. 4, p. l.S.II
2. Aiii'ii'iit Diinniii'iift.
I lui'miirial mure than thirty years old of a
ilw'il. i.'S yiioil evidence uiioii its liare prodiic-
. withiiut calling or aceotiiiting for the suh-
iliiiii witness, /)ue il. Mdclein v. Tiirii'niH, ,'>
jB.lk
ISdiiliK', that this principlo extends to any writ-
iilin'iinRnt, even to letters. Il>.
Dn eji'ttment, the plaintitl's claimed throni,di
ilei'ilj, over thirty years old, in iiroof of
tell tlwy shewed one to have come from the
Itiniy ol the former owner's a^eiit, and the
ler til have heeu produced under a written
lerfriiin i.ie agent ; -Held, sutlicieiit proof of
■K liavinj,' cdiiie from the proper custody,
iuiitoalliuu; the agent who had had charge of
Vwkdiil. v.Chmlir, 1-2 C. V. "ilT.
tmont. The plaintiff claimed from the
kiiti'i' miller a deed executed in 1S4,'?. De-
Want relied (in a former deed executed in
|3 liv till
dsof thirty years
old were prodiic.'d from tlie ciislody of the so-
licitors of the iilaiiitills, who elaimed as trus-
tees, and one ot which solicitors was a plaintitl'
ill the .action. The plaintill's claimed under
these h'cds, tlirou^;li several inesiie conveyances.
The solicitor plaintiir had once recovered .jiidg-
iiieiit in ejectmeiit for the l.'ind in ipiestioii, as
one of the three trustees : Ihhl, that the deeds
were piddiieed from the proper custody, to enti-
y admitted in tie them to lie received in evidence as ancient
'.) ('. I'. -178. ihiuilineiits. T/iom/i.yon v. /liiiiiiN, -J-J ('. I'. ;{!».S.
f
I I'er (Iwynne, .1., a deed may lie proved liy
j c(Uiiparisoii of the h.-iiidwritiiio of the sign.ituro
j with the signature of another deed which is
produced and received in cvideiiei^ as ,'in ancient
diiciiiiieiit, liut the h.'inilwriting of which is not
otherwise pn.ved. //'.
.1. .McK., having an order in council for 100
acres, executed in Felirnary, ISl'7, to Shore, a
liond for a deed. The petition for a location and
the lioiid were executed hy mark, and in the
lioiid the oldig.ir was de.serilicd .as of York, la-
liourcr. In May, the jiateiit issued to McK.,
and was in the possession of Shore shortly after
its date. Shore went into iiossessiou in IS28,
cleared ahoiit seven acres, and after three years
left it ill the poseession of the plaintitl's, who
had the lieiietit of it up to within a short [leriod
of the death of Shore in I St!). The pLiintitl's,
claiming as heirs at law of Shore, tiled their hill
: to olitain a conveyance of the hind, and produced
the patent. T'lie defendants, .Sliortis and .Mc-
( 'alie, produced a conveyance purporting to have
heeii made liy, and signed ".lames McKeiiiiy,"
now of the township of Niagara, i^c., yeoman,
to .lames Smith, dated 7tli Septemln
„ patentee, (a married woman), „„ t<' •''""fs Miiicii, (lateii an Septemlier, 18.13;
nil was eiiilorsed a certilicate of her seiiarate l^'"' ,=•• ^oii veyamie trom Smith to .Sliortis dated
luiiiiatiiin l.y chief justice Seott. This deed '" ^^^y' ^^-^:^ ' '"''.'i ''^'g'stered. No or.al testi-
llirnilueeilhy the son of the executor of the !'"";>' ";^« ^"^''^^» "'.*•"' '!l'r"*\*y ? ^^l" «'•=!»*•""
iutee (if the pateiiteo, and proved to have '» *'>« deed to Smith, with the locatee (it the
Miuiiiil among the testator's papers :--Held, ! crown, and m, en,/nire of ih r,,s/o-/// during tl
Urcustddy in point of law, so as to render I *!"'■*>' yC'"^''" : - Held, that the deed from Met
; iiniduetidu evidence. Held, also, that
i ileeil under which plaintiff claimed, i-ather
I tile ancient deed, e;u'ried with it the im-
htiiiii of fi'<aud, and the production and proof
■■. iliil not r.iicuaoit.'vte the calling of the siib-
witnesses to the ohl deed if living, or
uig their sigimtures if dead. Held, also, that
I objection that possession of the land did not
le
K.
to Smith did not come within the rule th.at an
ancient document proves itself. Jioijersx. Shor-
fix, lOChy. L'43.
Although an ancient deed produced from the
proper custody proves itself, this does not pre-
clude a party interested from proving the deed
a forgery, or invalid on any other grountl.
Chamberlain v. Torrance, 14 Chy. 181.
13-i.i
evidb:nck.
135i;
8. Dfifn.
(ii) niiiiTii/h/.
A. H fi ( '. art' witiic.idi'H to iidfi'd. A. lnv-
ill^ liorii hIu'Wii t(i lie ilriiil, liis liiiiiilu'l'itili^ Ih
III'iivimI ; tile IiiUkIw I'itih^ of K. , wlio Ih uIhii
luNMiir of tliii iiliiintiir ill an .'ictinti of ('jci'tiiii'iit
in iiIho |iriiVoi|. |). , tliiMli'li'iiilaiit in tluMu^tioii
nf fjci'tini'iit, li.iviii;,' in'ovi'il U. '« liiindu litin;,',
TVrtln his |)llMil' of till) llci'il tlll'll', witllollt lit-
toiii|i(iiii,' to ac<iiuiit ill iiny way for tin' ali«i'in'u
of (I., till' tliinl witness. Si'iiilili', per .loiu'n,
J., tli;it till,' ili'i'il, without iu'foiintiii^' for tlii'
ftlisiiii'i' of till' « itnt'Hs ( '., wiiH not li';,'.ill\ |iiovi'il.
!)'!■ i\. M,-f)i,wii<i \. TivKjij ,1 III., 't {} u. k;;.
Ii. ii'ctiihiit liy a son ;iL':iinMt liis father, tln'
itlaiiitill' I laiiiii'il iinihr a tlt'i'ii from lU'li'iiiiant.
Tlnri' was I'viili'in'e to mIk'W tli.it siiui' this iliiil
(lifi 11(1. lilt hail litrii niori.' than twenty year.'i in
jiossi'usion without any rccoj,'iiition of the plain
till'H ri^ht. Till' |ilaiiitill' attriniited to shrw
that, ihiriiiL,' a part of that perioil, thft'iidaiit was
in poiisfssion as agent of his (the plaintill 's)
brother, to whom he had gi\'eil ii le;ise ; and
niiiong other evideiiee he olliied a paper in de-
fendant's handwriting.', purporting t > lii! a le.isi-
from the i>laiiitiir to l>. .M., his In-other, of cer-
tain lands, iiieliiding the premises in i|uestioii,
for .1 1
cliMctl the land. TliJH rolonjn' wn.H e\(.(i,(,,,i i
the demandant hy mark, her iiann' Ih in;,' 1 ''
ten hy Moine oliii else, ami the t, lliiht « u a
only MuliseriliiiiK witness ; ||,.l,|, ,||,|( ,,r,,, "'I
the tenant's sign itiire was not reiii|e,v,| |,|. '
silile to prove the deed liy the fait iif jij, | .""' 1
a party to the reeonl ; and ih.it, as In i',,|,|,| '"'*
lie examined on his own lieh.ilf, aii,| ,,|i;,..|'
other I videliee that the deinand.iMt I'Vivnt,.,! T
release, the demandant liiiist siieeedj, || , ,. - |
J., diss. CliiiL' V. S/. rnisiiii, •.>;( i;. |i ;|,j-'' ■'
Dower. I'lea, tlliit hy deed i,f til,. .i| . ,1
August, |.S;<7, the husliallil eonveved tliiLiil, I
T. ('., and that on I he '.Vtid of .'\|,nl, Is.";,; , "I
demalldailt, hy deed jointly e.NeeMtcil with' | 'I
hlisli.'ind, released lier ilower to T. ('., (,.1.,, .' f
\eyed to ilefendaiit ; and on this issue w,,, i,,,,, i
The release of the 'S.hd of .\pri| was a ijini |.i|
of release of dower, for a noliiili.'il iMi .|,|,.i,j[|'|'
exeelited liy deiu.andant liy iii;irk ; ai.^j tli,'i,J,L
silliseriliilig witness heiiig the defeliilunt, ni'i
lieeli deeided t'lat it eoiiM not he |,rn,,i ,
evideiiei' of his handwritiiiL.' : See r|,ii|; ,, s,''
Velisoii, •_'•_'(,». M. ,'i7.'i. 'I'he ijeleiiduit tl|. n '. "^'
])roveil the exeeiition of the deed of tlii"| i
August, IH;<7, whieh was exeelited hy tlii.h niii,.
daiit, though she was no party to it, miij n
tained no relea.se of dower. .\ eertiliiMt,. ,,1 t»j
lart of the time during w liieli defendant ,„
t'lailiK'd to have hiM adversely. At the foot, J<'«t'>vs was eiidoised, d.ited •.>ii,| „f M,,,,!,, kV)
but not in defendant's writing, was written the *''",'^ V"i '''''"•'^'"'•'•,"'' '';"' ''I'l"' nvd Ik l'»iv tli,i
jilaintill's name, .ind the word " copy." No proof •""' duly l.arred her dower; ami mio „i tki
Mas ollered lesi.ecting this paiier, except that it l;''"\'''l "\'^^ «'"^' "•'•■^ '•Xamnied, vxmih:
was in deieiidant's handwriting: liehl, that deed a-.d r.'.'eived !5I(). T. (',, th,. ^-k
Slu'li pajier slioiild have lieiii leeeived. l>raper,
J., diss. Mi(,)i(iiii V. .Viijniiii, 1()(,». i'.. IIW.
In ejoL'tnient, the jioiiit in dispute w.'.s wlietht;''
T. I!., one of the pliiiitiU's, had ever convi'yiid
the land to one d. Iv., deceased, (nmler whom
defendant derived title,) evidenee was given of
Conversations in which 'W I!, had stated either
that ho had given i\ deed to J. ]{., or that the
title was vested in ,1. H., and a. letter from T.
K. was also priidiieed ret'erring to such .'i deeil ;
but no striutly legal eviiieiiee was given of the
Contents of sueh deed ;- Jd'ld, that such evi-
dence, under the circunistaiieL's, was admissilile
on the jiart of defendants as primary evidenee,
and that notiee to the pliiintiH'.s to produeu sueh
deed was uimeoessary. Jdn/cru vt at. v. Vttril, 7
C. P. 89.
In an action for dnwur in three loL' of land,
to provo that defendant was tenant of the free-
hold, a witness was ealled, who stated that ho
liad occupied one of the lots as t' n 'lit to defen-
dant ; and about ten yeara ago cii.'. eyed all
three lots to one H., who swoie rl'.t he had
conveyed to defendant after haviii
owner and built upon the In
cofiy of the memorial of this ('.'''"i was put in,
notiee to proibiee having been given to defendant;
— Held, sulKcient eviilenco to go to the jury.
Fisher v. //lu///, 23 Q. K 408.
The covenant in question liad no seal on it
when produced at the trial, but there was a
mark of where the .seal had ))cen, and the witness
to its execution awore he had put a seal on it
before execution. The jury having found that
it was sealed when executed, the finding was
accepted. Stewart v. Clark, 13 C. P. 203.
In an action of dower, the tenant relied upon
a release by the demandant and her husband to
C, from whom the tenant had afterwards pur-
.-:uitii
Jiroveil tliat ;^iie .-igreeit to h,ir In r ilnHir. .inj
that he ti'sli her to the justices fur tliiit Mir'i.'.
but linding that the lU'oceeiliiig hehpi-c ili.iii ,^
inelfectual, he had the release of the 'Mi
.April, 18.")0, jirepared, ami sent it tn \m[
defendant, with a note for .-j-KI wliiili In. liej
against her hustiand, to be kept if tlic nit,
was executed, otherwise retiiriicil ;aiiil tliiitikiti
dant brought liack to him the release ;i|i|iartiit|J
exi cuted, but not the note. This I'viiliiuf «J
received (though objected tu), ,xs tfii.liii- 1
strengthen the probability that the i-uleasc mIJ
was executed ; it being also swurii, in '(iiilirt,
tioii, that the demanilaiit's iiaini' to tln' nleii
was written by her liiisli.iml ; that in M;iyl^
htwing the deniand.int told a witiiea.-i tliat'icfe^
dant liad been to her to sign a paper lurT, ij
wliieli she had signed ; and that tlie mxtd.u.lf
told defendant she liad im rights tlniv,
jury found for defendant. 1 )iaper, ( '. .1., ilniikt^
whether there was sntlicieut to gu tu the jni
as evidence of the executimi of tlio rilc.iw;
Held, Morri.son, ■!., concurring, tli;it AAvwi
being obliged to resort in ell'cct tiisii'iiinlarveil
'■ccuiiied as , <lence, was bound to call the ileniiiiuliiiit, «|
A certified i could have given the best, iiiitHitlisiaiidiiik'
adverse interest ; and that the venlict iiiiisttkl
fore be set aside. Morrismi, .1., tlimiglit tht
deuce inadmissible as being irrelevant tuthiMll
Hagarty, J., diss., holding that tlieevliltncei
properly received as foriiiiiig part nf tlit
of the ivhole transaotinii, and ti iiiling t" ilJ
why the release was for a muiiiiial (.(nisiilcrstir
only, and in a form implying .i previniijconvi
ance of the fee, which might nthenvise b^
given rise to suspicion ; and that ilefemlanti
not bound to call the demandant. (^yi\
Stevenson, 24 Q. B. 200.
The seal of a corporation having liecn ]OTfj
—Held, that the production of a document wif
m ■ 1^^'
}\rr niiini' luinj; »nt
il till' tilKVIlt »;v» til,
; ll.'l.l, timt i.r..,.|„( I
H lint rrlMli'Viil ihiii^
y till' t'lict vi Ills |,.in„
III lll.'lt, iis ill- I'OllMlll.t
lii'li;ilf, mill nilVriil M I
i'lli:vnil:iiit cxiviiuM tti*
Hint hill ri'iil. ll;i)jartv,
i»<.i», •.':» <;. IV wri. "
ly ilrril of lln' '^|.t ((
ml riiuvryi''! tlir IuhIu
'j;tril 111' .\|iril, ih:,i;, th.
lltly I'Xrrlltnl with lut
iiwci' til T. <'., wliii i-hii.
im tlii>i iiiiw w;w ']t>mu\
of Alil'il was 11 ilinl ]. ',
a iioiiiiiiiil fi" <iiliT,vri ■
; liy iiiiuk ; iiiM tli'Mi,:,
n;; till' ili't'i'iiil;uit, it h !J
I'nlllil lint In' \iriiVnl i,y|
■ritiiii,' : Si'i' ('l;irli i'. Si«
'I'll!' ili't'riiilillt tlicWii!
f till' iK'i'il 111' tli.''j|>t
lis I'Xl'l'lltl'il liy llliiirliiilJ
no jiiirty til it, mill \{: 'J
wt'l'. A I'i'VtitiiMti' II! tirJ
■ luti'il'Jml 111 Miiich, WOj
lail illHU'ill'i'il Inliilr
iliiwi'V ; ami mii' "i tlitii
I fxaiiiiiu'il, I'Xirutcil ty
51(1. '!'. ('., tlio «raitt«'
•I'll Id liar licr ilmvir, anj
U' jiistii'c'* fiif tti:it l'Ur|«.
il'iiucciliuK lii'l"!'!' tln'iiiwj
tilt! rt'li'asi; (if till' a! (
'il, ami silit it til iitt lij
,U.' fur •••■Itl wliii'li hi'litll
til 111.' Ui'|it if tln' rrk'JI
iscri'tiininl; aiiilthatiluiri
iiiiii till' nli'a»i' :iiii>;irrfillj
llotO. 'I'llis I'Vilil'lKT w^
ii'i'ti'il til), as ti'ii'liiii I,
ility tli:it tin: Mease m11|
i; iiImii swiini, ill 'I'lilin
lant'i* naiiii' tu tin: rtleal
husliaml ; that in Miyitl
it tiilil a\vitiii'S'<tliiit'li'iel
to Mifiu a ]ia\ier fur I 11
; anil tliat the mxt .lav >
hail no I'iglitK tlii'iv
aiit. Di-aiiiT, ('■•l..'l"'>'''<
lullii'ifiit til gii til the JM
ei'.utiou of the rekyv;!"
lolicuvrilig, that ilelfii'li
rt ill cli'i'ottiiseoniilaryej
, call till' (k'luiiiiAiiit. ft
best, notwillistiiiiiliui; •
that till.' via-iliet must the^
„mson,.l.,th.ni!;littliH
lii;iiigii'i'i'li'V«i>tt"'''^'""1
il.lillg that the evuli'iiceir
I forming [lart of tlit'M
Lthm, ami t.'iiiliiit: t'l skj
for a niiniiiial omsi.lerati'
nnl.lying a iircvim.n'nnvi
Lich Ti.ight iitbenvisehj
L ; ami that .lefcmlMtl
;he ilemanilant. Uart\
!00.
oration having IwiilH
lUictiouofiKlocument'ilf
kviuknck
with till' N«':li at
i:\oS
i^mni iif tin) «!or|Mimtion, with tin' Ncal at-
.I'j „ »illli.'i*'nt |ililll:i I'.liii' rviili'lli'.' iif ItM
" .'.xnutiiin. )h,„lhilly.S„inr.n,. IMM'.
ijii'i.
.y|„,i, ...illatiTnl isHni'H ariH.'uiit nt c |i(in«oii
,. |„.,itin«, ■iiiil cviilcni'i' in nlatioii to tlii'in
I .'iMi'H inlmi'^i'''^" lit a Htap' i.f till' rails.' uhiii
" „|i| iitlii'i'tti'i"' ''*' I'Xi'lmlt'il, siii'li I'viiliiii'i'
Ui'
|it«
11.11
l lic' tnati'il 11.-* ii|i|ilii'.ilil.' to till' I'iiiti' Kfii-
"'ik' wlun it iiriiuirly aii|ilii'M to it. /i'i<.(/«i/
Tlii'i'Xi'i'ii'i""'" a ri'li'aHi! of iluwir liiiii),' ijii-
till' lUfi'iiilaiit iHovi'il till' lianilwritin^,'
till' «llli'iil'i'ii"K witlirss, who WiiH ilrail.
that till' miMioiial of tin; nlrasr, ilatnl
th..Uv'i'"''''''' "'t'' t^'"' iill"'l''vit "I "Xi'i'iitioii
,!.■ liv I'l "'''• ailiiiissilili', HI |>:iri .■' tlio ns
"" ■iiiiliid shi'«''>K tliiit 1'. h:iil swiirii til thii
;, null, /i'"'' V. ''",'//"•, '-'7 (^ »». '-'TO. j
i,l,iiit iiiiiiliii'''il II ill'*"' iiliWHiils of thirty
111, with a iiiairii'il wniiian's nrtiliratc
tl,r,..ii fi'iii'i tli>' lihiii't'll 'iii'l li'''' lii"*'iiiiiil to tliii I
' "I'lif till' ili'ii'iiilaiit's wifi', .iiiil it was ail- !
Iliutr'
Iif r
liit'iuhl
IM
Idcvi
hill'"!'
iiltul that ilifiiiilaiit anil tlioMi' iiiiilir « hmii he
'Lii.l hail liiTM ill iios.sos.sii ill iliiriiii; all thi.s
llclil, follii« innOsHi'r ''. N'l'iiioii, 14 ('.
V;! thai tho ili'i'il with tliu I'crtilii'ati' iiiioii j
i',',imii« fiiii" tl"' liriil'frcnsttiily luovi'il it.srlf ;
111 that frill" til'' ""''' *'"''' ""^' l'i'~"*''i<«i'ii' "' tl'*^'
1,1(1 glint' in lu'i'iinlani r with it lor iiioii'
ijiitlii'ty-iiiH' yoars, it woiihl l>i' inisiiniiil that
j,l,.^.,liili|iriiiliiri'il hail Ih'uii iirnjii'ily rxi'i'iitfil.
1,1 that evirvtliiiiK ilmii' I'.V tin' justlci's ;i.s jmli-
„llia'is hail lii'iii riditly ilmu', until thti t'liii-
irvwas shewn. Mi'iilv. Fiu-lin'ji r, ITC 1*. 41.
Tlie "viiluiii-'ii shi'Wiiil that A. H., tin; uiicusto'"
the fi'iiialo iilaintifl', thrmiKli wlioni tlif titli'
ilaiiiiL'il, livuil nil tliii lainl ill iiiii'stinii in
lU iliiiiniiig it '■"* l'''"* "^^"' ""t'l 1^4;t, wlu'ii
ltd it; anil a witin ss ilciiosi'il to having liui'ii
1 1)V A. I'l. anil anotlii'r tli:it thi'y hail I'.x-
1 fiUiiiM ami iiii>ili' ili'iils to oiii' aiinthur.
le witness stating that In' li:iil ri'Uil thi' iloi'il to
B,, ilati'il hofiiri' IS;V.'. Anothi'r witiii'ss, tlu'
oiiiUiliMif A. H., Htati'il she j,'!ivi. to W. H.,
it*miif A. H., and liiishainl ol ilL'l'i'iiilant, the
in i|nt'stiiin ; ami thfro w,is also eviilciici'
BtW. IV, hel'iiri' his iluatli, tohl ii witili'ss ex-
ineil at the trial that he hail got this ileuil
liih he sheweil to witness; -Helil, siitlieieiit
iiltiioe iif a ik'cil in fee to A.H. S/tiiiliDil' tt ii.r.
hrh-li,\lC. 1'. HiO.
In ciiveiruit against two ilefoinlaiits, the iii-
iture iif aii|irt'ntifesliii( sueil iipnii was ]iro-
iciil friiiii tlio eustoily of ilefeiidants, with
ifliii the aiiiireiitii;e hail scrvuil until his ilia-
lal. It liail fiiiir seals, iiml was sigiieil hy the
iiitiff. Ilia Sim the aiipreiitice, ami one of the
'emUiits, hut lint hy the other defemlaiit ; —
that there was eviileiioo of exeeutioii hy
ih ileft'iiilanta. Jlt(llJ^ v. Thomson et «/., '21)
B. m.
liming is nut essential to a ileetl, though it
inlil never he ilisiieiiseil with. I(t.
fhere a conveyance is proiluceil upon notice
an mlversc party who claims an interest in
cause under the deed so produoeil, the party
iiig for its proiluction is not bound to prove
execution. Vhisholm v. Sheldon, 2 Cliy. 178.
he (k'femlants produced a conveyance pur-
ling to have lx;en made by and signed " J.
Mi'K.," now of tliii township of Niagara, Ai'.,
yeoman, who was the patiiitrr, to ,1. S, No oral
ti'stimmiy was given of the identity nf llio
grantor with the Incatee of the erouii, Init tlio
Migiiatni'i' and death of one of the attesting; wit-
nesses was proved, and the aliseiiee of the other
witness w.is ai'ioiiiited for : lltld, I. That
there was xiillirii'iit prima faeie proof of its exe-
eiitiiin ; '.'. 'rii:il siirh proof must he taken to
iliehlde tli.'it thii party liy wlioiii the died plir-
ported to III' I'Xi Tiitid, was not mily a pii'smi of
that n.iiiie, lint the ideiitiial pirsini in whniii
was ve, ted the estate w hiili the diid pmpnrted
til I'onvey. A'l.i/i c.s v. .V/io/Viw, 10 ('hy. '.'Ht.
Where a party snppnrting a deed |iriivi's the
handwriting of a dei'e.ised witness in ordi'r to
riise the presiimption of due exeentiiin, the
other p;irty may give evideliee of the ehai iiefer
of sili'li deee ised witness as iinrolior.itive of
evidi'ine teinlillg to shew tli;it the deed was a
forgery eoiieoetrd liv liiiii. I 'h'liiilii rlniii v. Voi'-
i-'ini-f,' 14 Chy. IMI.'
The I'ourt, upon th mllii'tiiig ivideiiee ill
this ease, upon a pititinii under the mt for
Hiiii'ting titles, dceideil that a power of attorney
and lioiid relied npon were forgeries. Hiniisi'
V. Shiiiiiir, III ( 'hy. '<7)'A.
In .1 suit against a widow hy the assiyiire of a
liiortg.ige piirporting to he exeeiited hy her late
hiisliiiiil and herself, the plaintill' proved their
sigiiatni'es and that of the siiliseriliing witness,
who also was iliinl. The judge liy whom the
defi'iiilaiit li.'id been exainilied verilled Iiim eerti-
lieate, though he did not reeollect the eirenni-
staiices. Tlie doenmeiit Wiis a iiitihed instrii-
iiieiit, iiiid the [larts were not ivfirred to in the
attesting elaiise or otherwi.ie antheiitieateil :
Mild, on rehearing, freviMsing the decree of
.Miiwat, \'. ('.,| that the uiisnppm ted evidence
of the defendant, tlioilj;li believed by the viee-
eh:iii''ellor, was not snilicieiit to disprive the
execution of the iiistriinieiit by her, iiir to ihinw
on the plain till' the onus of )iroviiig that the |ia tell-
ing of the instrnmeiit had been before exeeiitioii.
.Mowat,\'.('.,iliss. \iir/hirti(iit v. Kiii/imi. iHChy.
(143. -.v. <'., on the original hearing, 17 t'hy. '147.
To complete the chain of the ]iaper title to the
land in respect to which a eertiiicate of title was
prayed, prudiiction or ]iroiif of a power of iittor-
ney from the jiateiitee to one ,1. was reipiired.
Search had been iinule for it without Hiiceess.
Its existence was not sworn to jmsitively l<v the
petitioner, and the only evidence of it wii an
atlidavit of one I'., who did not swear that lie
had ever seen it, and did not state lii.s means of
! knowledge of its existence. There were also
some suspicions circnnistances with regard to a
deed executed apparently in piirsnanee of tlio
jiower. The only evidence as to )iossession was
a statement in the petitioner's atlidavit that ono
H., to whom the petitioner agreed to sell the
■ land in I8(!(), was still in possession, and that
; possession hiid alwiiys accompanied the title.
N'o notice appeared to have been given to the
person who was in possession. No attida' it was
put in as to adverse claims served upon the per-
son directed to receive them. The evidence as
to possession and the existence of the power of
attorney was — Held insutlioient, and a certificate
of title was refused until further evidence should
be given to clear up the suspicions circumstances
in tlie deed, said to he executed in pursuance of
i:
I Hipi
1359
EVIDENCE.
I3i;f
the power .if attorney, ;viul atfoiiliiii,' positive
proof of the exi.steuce of the power, or elwe shew-
ing tlie oxereise of aets of (iwiursUiii, whieh
woiilil justifv the iiresiiniptioii tliat A eonveyanec
of the leg.il estate had heen niaile liy the paten-
tee. \otieo was ilirected to Ite given to the
person in possession, ami an allid-ivit as to ad-
verse elainis or(h'red to he furnisheil. Be Street,
■ L. J. X. S. 1U7. -I'ayhir, /.V/c/'c. .
4. Otlii'r DDi-iiiin-ntn.
Tf a party rely on a patent from tlie erown
to nialie out his tith', he shouhl, in the event of
its heing rniitihited or injured so as to reinler it
inipossihie to aseertain its eontents satisfaetorily,
ol)tain an exeinplieation. (Idniltillc ix ilviii.
Siuiihrv. /liid-ei; 5 O. ,S. ,S3:{.
The defendants were sued on aby-hiw, alleged
to have heen made hy them, I'liaeting tiiat all
persons who at the time of snhseriliing should
pay uji their stoek in full, sjiould he entitled to
inti^rest on the annmnt of tlieir investment.
The defenilauts' hook of hy-laws was [U'odneed,
in whieh this hy-law was written out, but not
sealed, and in the margin was written " ex-
pungeil," signed \\ith the [>resident's initials : —
Held, that sueli proof, even without the entry
in the margin, m onld have heen insullieient to
shew a hy-law. Mr Dniit II y. Tin ( )iili(rin. Simcoc
(iHil J/iir'cii l'iiU,ii U. W. Co., 11 g. B. liHT.
Xl\'. 1'ai;oi. I'.mm.an \ rioN of I)o( i.mknts.
I. '/''I Wir'i III- l\:i-jil(i'n( l>ci'(l.i.
(a) Deeds ith.iiiliili in form, hut hilcii'lid lo he lirhl
lis II Seciirilij or ill Trnxt.
I'arol evidence eanuot he reeeived that a deed
ahsolute in its terms was intended only as a
seeurity. (•'ilinour v. //((//m, (J (>. !S. tilil.
The ]ilaintili', who was the owner of landahnut
to he sold at slierill"s sale, agi'eeil with defen-
dant that defendant should buy tiie property at
the sale for him, and pay out of delendant's own
funds, and give tlie iil;iintill' two ye.irs to repay
him. The property was then sold for about one
fifth or one-eiglith of its value to defendant, wlio
paid for it, and the plaintill' remained in posses-
si(Mi for two years, under the agreement, ami
niaile valuable imjn'ovements ; -Held, that parol ;
evidence was admissible to prove the agreement, j
I'tijiiiuiiK V (iiinl, 2 Cliy. '>\\i. ■ j
Where an ahsolute conveyance is executed '
with a parol .agreen cut f((r redemption, and the
grantor continues in possession, if the jiarties so
deal with one another as to render such posses-
sion clearly referable to the i)arol agreement, as
by demand ami paynuint of the debt or interest,
or some part thereof, such pmd agreement will
be enforced in ecpiity. Send)le, where it is clear ^
from written evidence that the agreement really '
made between the parties to a deed is not tluit :
stated iu the deed, but the written evidence does
not shew what it was, pand evidence of it ia [
adniissil le. Send)le, a grantor continuing for j
years in possession of property after execution
of an absolute conveyance, is alone sufli-.'ient to
let iu evidence of the parol agreement for re-
demption, in pursuance of whieh such posses-
sion took place. LeTanje v. DeTiiyll, 1 Chy.
227.
A decree was subsequently lu.'idc to lit i>l
till' in to redeem, /h. ,S Chy. .'{(l!). '
Where a party assigned his est.ite livwuvnf
nmrtgage, but the instrument I'Urpi.i't^.il t,i |,',.
absolute, and noeleuigeof possession tiiiil< |,|,, '
the teniut of the mortgagor eoiitiMuiiiL; tn \M
possession; Meld, on ap|ieal (vont C'\min.f^
tlUit this was not such a possession hv the iiii.iV.
gagor as would allect a purchas<.r froin thinmirt!
gagee with notice of the int -ri'st of tli,; nmr-
•,'agor, Ksten, V. ('., diss : LeTar-e c. lloTiuli
approved of. llreeiiAliiilil.< \. /!,iriil,,ii-i^ H I In'
I ; atlirmed on appeal to the I'rivv ('i.iin.il i
Chy. il'l.
AVhere an absolute deed of real e-stati' Imd !„,„
executed, and the gr.intor, by iiis bill, i|||^„p| ,
that the deed so exeeut(Ml was inteiKl'd as/sc
curity only, and that it had been veil ally i,,,|.jpi
to execute defeasance at some fntnrc tiim', Imt I
it did not .ippear that any acts of the •sn;,'.)^ i
were inconsistent with his suppositinn tiint t!ie '
conveyance was intended to be alisujiite. ,iiiiliii,t i
by way of security, Jiarol evideiiee of theiillu^'iil j
agreement was held inadmissilile ; I.eTap'e f.
he'l'uvU remarked uiioii. //../(•/-(«,/ v. Sliiruri j
1> Chy. (i. • 'I
^\'here a party assigned his inter.'st Irv «jv j
of Seeurity. but the assigmnent purpurteif t.il« j
absolute, and he remained in [possosinufniiiitliej
execution till the tinu' of the iu'/uiuj:. li:irol evi-
dence was adndtted to shew the real ii;ituivii| tlie j
transaction, linrnhurt \. /'iilhr-inii, 1 Chv.i'A |
Where a party, being in clo-se cHstmlyiit tliel
suit of another, agreed to execute a ediivcy.iikel
to him as a security fiu' his dilit ainl ensts, aiiilj
executed an assignment aecordiiigly. liMttlieii
strameut w.is deemeil in law an ai;:-iilii!eassi;'n.[
nieut giving the assigneu a rigiit of n'-ii:in'l.«,i
and after the diy of iiayuu'Ut had ehi|)s,'il tliiil
deeil was set up as a bar to the pirty's lijjlit toj
redei'in, par<d evidence- was adiiiittril "ii thel
ground of fraud. Shinni v. Hm-lnn, L' ( 'hy. -(.i.l
One test by whieh a coiiditioiial .-^ale i.< ills
tinguished from a mortgage is, the aile(|Uiii'yo
the consideration. Wlicre, therefore, it M
shewn that the plaintill' had eouveyeil iiiU'StaMl
for less than one-fourth of its value, with ;uha.!M
giving him a right of re-imrcliase, tliceiiiivevffleu
was declared to be a security only. /''.
In a suit by the rei)reseutatives of H, :ii;.iinsi
the re[U'esentatives of C., [larol eviileiia'i'krll
proved that .-V. ami H. had agreed to exclianjf
pro[(erties, H. paying A. tT-i for diHerciioee
value : that H. had conveyed liis ]irii|iertytii.\.|
and after the arrangement was coiiiiilettil, .i'l
property had been conveyed to ('. hyH. aM
security for the t'74, which ( '. unilertii(iktii]«|
B. in goods, and it appeared freiiit'.'sl kstliif
he had charged the i;74 to B., and eri'di:t'4 ani
afterwards satiatied that amount to A., ainl kaj
credited the rents to M., and eliart;ed liimwitl
the repairs of the premises ; and letters writtq
by r A'^r., also iu proof, which iiiditMtO'l tU
existence <".' some agreeiueiit res|iei'tiiii; tlj
Itroperty : — Held, that the parol evideiuv irj
atlmissible ; and it appearing that the dtit af
been paid, the defendants were deehued tniitej
of the jn'operty iu cpiestion for the iiLii™
Willitrilv. MrXal), 2 Chy. (iOI.
Upon the 4uesti(ui whether a ik't'l, :'''*™1
in its terms, was really iiiteuiled ;u a secnwS
i3i;f)
ly lUiiilf t'l li.'t \4;im-
ly. w.y
his i.'st,itf liy \v;\y.ii
out puriii'i'tcd t.i li.;
jOSSl'Ssinll t"iik pllw,
ir (.•outiiuiinj; tn luil
[lual I mm ( 'Imiufry,
irtst'>isiiin liy tliuiiKirt'
chiiJifV fniiii tlii;m»rt-
int ri'st iif tlio mnrt-
l,u'riU',L;o '■. KoTiiyll,
^ V. liiinilmrl, W I liy.
the I'rivy Cimiwil, 5
<»f rc'i\l i-'stati' li;ul linn
[ir, hy hi.-* hiU, nlkgfl
, was ititi'inl'il as ;i Sc-
ad liLM'ii virl«llyii;;i'i.T'l
t sniiu' futuru timi',li\it
uiy acts "f the liniiitti) ;
his suiiiii'sitinii that the ]
I til hcahsuhiti'. iiiiiliiiit I
,1 cviiU'iirviil' tlu'iilk-grl I
lauiissihh' ; hi'lar^v '
11,,11-htiiil V. Shinir
ic.l his hiterrst hy «y ,
uiniK'iit iiuqiiTti'il tiliej
i'A in jinssufsi'iutvumtl'.el
,t' iW ln-'aiiut;. \M-<Am-\
iiewthc ivaliKituiviittlie
V. l'(iHn-<iw, 1 Cliy.ttj
^ ill chisf cust(«lyatt!i«|
>r liis (h'i)t ami nists, imll
it acoov.lin-ly. liattlifiiiT
in hiwan al)«ilute:issii.ii-i
,. . ii ri"iit "f iv-\iMivl.:!je,l
ivnirut ha.l ehqi^."! thsl
I'.totlu' v u-tv's right t«l
,. Nvas aaiuittcil oiithel
-,W V. //tn'/"», '^(V'^'l
, o.militioiial sak is fe-J
■b'agois, tlieaili'iiiwcy
Vhe'l-e, tlKTefuru, It «
IV haiU-oiiveyul aiustiMi
,,|- its vahif, with iU'taiJ
.,mivlias.'.tlieo,iivcy,uic^
purity only. /''•
•csoutativcs of U, ^f4
I' ,,;ll-(llfVi'll'll''t'*'"'g
ii'aa at;iv.Ml to exchange-
■ .\ t74 fni- (htloim'e«
,vovlmI his vr"liortyt--\J
la.n't was .Miinp etc. . A.J
,„voVea tn chyi M
14 toll, ana erea...a Hi
at aiuuUMt to A , aii'l '^
1h aii.leh^U'i:e.lh:m«>t«
ni^es; ana letters «n..J
liof, which .naK*.ltM
Lrcnient ■'eslicctm. «^
lly uiteiiacil .w 1
1361
EVIDENCE.
1302
.'lu'cl in(;inoraiiiliim (if tho traiis-
tiiiif t'cii' the use
L'k'rlv wliii ilrc'W tho doe'd tin-
iiierelv. -i" "'i^'A!'
•tiiiii niaiU' iit tlif tiiiif t'cir the usu of the ])ai'tii;s
i,v the attiiniey's
tli'iii washfia sutiicii.'ut tn lot in jiarid uviduucc.
|, I (.viaeiu'i! (hies imt lieediue adniissihle in
tliis class dl' cases, liecansu <if ii iKite in wt'itini{
sutlicieiit tn take the ease out (if the Statute of i
Viaiiils, li"t hecause (if the existence <if some i
ii't which evinces the real intention of the i
larties to have hecn (litl'ei'eiit from that exiireaaed l
ill the ilecd- Where an alisoliite deed aiijieared i
from l"i-(il evidence (which, under the eirciim- |
stances, was admissilile) to have lieeii iiiteii-
1.(1 as a seeiiritv only, and the defendant, the
kvisee and executrix of the j,'rantee, swore that
sk' helievcd the e(|nity of redem|iti(in, if any, i
lubimt an end to liy ii sulise(nient parol ajiree-
meiit between the ]iarties. casual conversations
livtlie mortgagor with third [lersons, from which '
-iioh an agreement was attemiited to lie inferreil,
mre hekfinsiiHicient |ir(iof of it, tlionoh it was
-aiil the mortgagor lind claimed no interest in the
lirifcrty from the time of the alleged agreeiiK.'iit
imtil after the death of the mortgiigee, a ]ieriod
„t ihiiut tun years, /f'lhm.i v. Mitlthiir.<, .S ( 'liy. ;
V} \
I'hc decree in the uhove case was revei-sed on I
' aiiinal, anil the plaintiff's liill dismissed w ith
; (lists. ' .Vi'"/"'"'-' V. Ifiihiti^. .") Chy. 1 ; .and on
Mical to the I'rivy < 'onncil tiie judgment was
; altnneil. See //o/dic-.' v. MiiN/iin:-:, ,"i t.'hy. 108.
The eircmnstanees under which jiarol evidence
; fliiiiijil he admitted to give an atisoliiti' deed the
I i.jKT:itiiin of a mortgage hetweeii the parties,
I (iiiisiikred and discussed. Matlhvir.'i v. Hot mix, ^
|5Cliy. 1. j
Ainrson having a claim against the owner of
|aii)ill, lirongiit an action against his executors,
lanil recovered judgment. An execution against
llaiiiiswiissnea (int and placed in the hands of the
ffiierili', iiiiiUr which all the lar.'lsof the testator,
|{ii which the mill and the mill iireniises formed
|» IKiitiini, were duly advertised for sale liy the
Bherilf. The testator by his will had devised his
Wsto his relations, and the mill and mill-.
Ipraiiises to an infant on his attaining twenty-
lone, his father during his minority heiiig entitled
tetn. liy an agreement made liy the adult
jJsvisces with a friend of the family, it was av-
rangi'il that this person should attend at tile
iheritV's sale and hid such an amou'it !"< .he ^
ithiik iiMjierty as would cover the exe( „• :.
Belt ami costs, and that he shod;! ' Id tin sane)
pr the several (iwnei's. Ace, -di'i^tly hi attended
t the .sale and liid the stlpui.itv ' laumiit, the
^rniiric'tdi-s and their agent i'.hn ii.ce.uli''g there,
nil ineveiiting conipetition hy opjnly .'.niumne-
I the arrangement which had he( i im.mIo ; and
Illy line hid was made for the ])v, lersy. which
p ihily Conveyed hy the sherifi t ' the purelia-
Vr.vdui afterwards conveyed to the devisees
Nr resjicctive portions of the est.ite upon being
Bill a iiriiiiortiimate share of the amount bid at
le sale, e: oept the mill and mil) -premises, .vhich
fc wirclw.ser retained, occupied, and improved
lOfingthe iniiKirity of the devisee, who on his
learning his full age, "'nnanded a conveyance,
Imoh ikinand the purenaser refused to comply
Tth, alleging the purchase tliercof to have been
rhiiwii heiictit, whereupon the devisee filed
1^ > compel the purcliaser to carry out the
fangemt:>t. The court, under the circuui-
"ices, held i",.- nlaiutiflf entitled to rcdccr" the
86
mill-preniises ; and that the arrangement under
whicii the pur , 'base was made at shcritl's sale
was cajiable of being ]iroved bv parol, McdiH
V. Mrdliiihiui, (i Chy. .'V_'4.
The jiri'.iciple upon which parol evidence will
be received to cut down a deed ilisolute on its
face to a mere security coiisii. cd and acted
on : LeTargc r. DeT'iiyll, 1 Chy. "JTT. eoinnieiited
on and apjUMVed of. liirimril \. W'alti r, '1 10.
(.t A. r-'i.
Parol evidence to vary a wriiten iustrumi'iit
rejected, although it w.is doubtfiil if it contained
all the agreement oetwccii the parties. .1/c.l Iji'mr
V. l[oii\\) Chy. T,i.
An assignment of ;i bond for the ciiiive*;^;ince
of land w.is made from a debtor to his civditor,
by a writing absolute in form, but the creditor
a.t the same time executed a niemorandiini shew-
ing such assignment to be by way (if security
only. Subsei|Ueiitly the debtor executed an-
other absolute assignment without receiving
back any such memorandum, 'i'lie court refused
to act niion jiarol evidenc that the assignor was
to be interested in the proceeds of the land over
and above his indebtedness to the assignee. ///.
A nKU'tgagee jiurchasing a ]iriiu' mortgage was
advised by his solicitor to take the assignment
to another ]>ersoii as trustei', and took it accnrd-
ingly in the name of his son, not intending it as
an advancement to the son : Held, that jiarol
evidence was admissible to prove the trust.
liarr V. liurr, l.") Chy. 27.
Having afterwards forechised all other incum-
brancers, the father was advised to release his
interest to his son, so that the whole title might
be in him as trustee. Tlio deed did not nieiitioii
any trust, but was retained by the, father, and
the son knew nothing of it for more than live
years, during all w liich time the father received
p.iyiueiits from the mortgagor to his, the father's,
own use, w ith the knowledge of the son, and
Without any claim by him : -Held, that ]iarol
evidence was admissilile tojirove these facts, .and
a conveyance to the father was decreed. /)((/•/■
' V. liurr, 1.") ( 'hy. '11.
A deed was made by one joint owner of iiro-
perty at the instance of the other to a third per-
son, under a parol ;igrccmeiit th.it the grantee
>-;lioiild hold the property to secure money whicll
, he was to advance to p.iv interest on a mortgage
111 the property, and subject thereto in trust for
the wife of such other joint owiu r, who remained
in jiossession : — Held, that ]iai. .! evidence of the
! agreement was admissible. CVi»///n'// v. Diirkiit,
! 17 Chy. 80.
I A man conveyed lano . s\y on a parol
trust, and the trustee made large advances on
account of the grantor and his family. They
; afterwards settled accounts, and it was agreed
that the grant(;e should ret: in a jiortion of the
land at a specitied ]>riee i)i satisfaction of the
I balance due to him ; ir.utu.d releases were exe-
: cutnl, and tiie veialii..; of tiie parties terminated.
After tile Icith of the gr.intee the gr.antor's wife
and chihlre I tilci! a V-i'' ;i,''.eging that the hind
I - 1 retained \v.'.3 h ;ld \r trust for them ; but the
I court, (loii; , -.itiated i,li.T.r this was not so, dis-
missed Ihelill. '.'erveijy. lioomi'r, 17 Chy, 558.
'inc nlaiiit J aj-,i ^ed with .T. to purchase a
minim; tcsi ;()r the • joint benefit, the c. nsidera-
tion ""oi .'.' cii wai'. t > bu the testing ot the ore at
\.U
rt.iff
]3r;3
EVIDENCE.
the cnisliiiig mill of the plaintifT, and at his
expeiiHU. In iiiirsuancc of this arran;L,'ement, J.
(lit! arrange for tiie lease, but took the agree-
ment therefor in Iiis own name. 'J'hu ore was,
as agreuil upon, tested at the erushing mill of
the jiLiintill', and .at ids expense, but.f. attempted
to exclude the jilaintilF from any partieipation in
the lease, asserting that he hail obtained the
same for his own benefit solely : — Held, that
the true agreemi'nt eould be shewn by jiarol ;
and that tlie plaintiff was entitled to tlie ben-
efit of the agreement. fVU/idiiin v. Ji))kinx, 18
Chy. 5.3({.
R. and .'^. beeame the purehasers of the estate'
real and personal, of ;in insolvent debtor (I).), S-
asserting in the presence of 1!. that he v.-as pur-
chasing for the lienelit of D. The ])roperty was
duly conveyed to the purehasers by an absolute
deed of transfer, and 1). w.as retained to m.anage \
the Imsiness, and continued to occuiiy the i)ro-
perty, !^. assuming the exclusive control of tlie
linaneial part thereof and making all payments
on acccmntof the purchase : and after the liabili- j
ties of the estate had all been diseiiarged, H. I
filed a bill claiming to have the surplus of the
estate realized, and the proceeds divided between '
himself .and S. and 1). : — Held, that the transac- !
tion was one in whicli, owing tf) l>.'s possession, i
notwithstanding the .Statute of l'"rauda, parol
evidence was receivable to shew that the pur- j
ch.ase was intended for tlio benetit of l>. ; but i
Wake, V. C., being of opinion that the evidence
was not <if tliat clear and positive nature reijuired
in such cases, mide a decree in favour of J{., I
which, on re-hearing, w,as affirmed by the full
Court. Ndlii'ii.iun v. Siitltli, Oij'Icn v. liiihciitidii,
21 Chy. 30.S. I
[See, also, the cases under "Mortoaor," as to !
whether a contract is to be treated as one of '
mortgage or sale.]
IJIU
(d) Other ('(i.ic-s.
To an action on a bond defendant cannot set
lip as a <lefence a separate .agreement not under
seal, varying the condition from that which the
bond itself imports, and alleged to have been
entered into at the same time with the making
of the Ixpud. Cramer v. Jfoi/i/soii, 3 Q. B. 174.
Defendant agreed by bond that upon the
plaintiff's assigning to him a life policy for t'r),000,
he would pay them €(),(X)0 ; and in suing defeu-
d.ant for the t(),000, the i)laintifi's averred ttiat
the i)olicy defendant was to receive was one for
£3,000 only, an<l not for tr),000, as defendant
well knew : — Helil, declaration Ijad, for the
written contract could not be variei' by parol.
Bank of I'. ('. v. Boiilloii, 7 i). B. '23;-).
A conversation prior to a written agreement
under seal cannot i)e receiveil to alter its terms.
Gi/jii)i v. Grctiii', 7 y. B. r><S(i.
Parol evidence held inadmissible, under the
facts stated, to vary or add to a contract of con-
veyance. ViiijU'ij V. Mdhindlet al., 8 Q. B. 454.
A. covenants th.at ho will repay B. on the
1st .Septeml)er, 1847, any advances of cash and
goods made by B. to 0., (a lumberer on the
Ottawa), provided the timber should not before
then be sold and disposed of at Quebec. B. after
the Ist of Septem!)ur, 1847, sues A. upon this
absolute covenant for the moneys adv.incuij t.
0. A. ple.ads that after this covenant \v,as nia.le
and the moneys were advanced it wus wix^l
between B. and C. that if (_'. would imiki. tin
arrangement described in the ))le:i, tla.n ]{ „.,, n
discharge A. from his cover iiit ; ami that!
did make the arrangement, whereby A. luiiiiv
wholly discharged from his agri'tiiitait : -lit.],!
that this jilea being taken citliir tn sit ui
efVect a parol agreement to discliarjju A. l
his agreement under seal (wliirli tii
seemed to think that it must lie), or, tii asson
th.at such a conseipiencc rosulteil iVmii the farf
stated, independent of tlie allem'd a'Trt'iiniii
was luit in either case a legal dcfcuoe. l/i/V, '
son ft al. V. DU-ksnn 8 Q. B. L'!t.
Action to recover back the liurcli;iso hkiuk-
paid l)y plaintiff' for two years' ]iriilits uUvrtii'n
mining shares under a sealed agn^nient, cm tl,-
allegation that before the two y . n,-,,; (-xhjiv.i
the defendant hail sold the share,, ami that tip
considenitiou had failed. Plea, tliat s\ich shares
had become valueless and uiiiirinhictivi; uf ini.iit
and that the act of selling was in fact at tl.-
plaintiff's parol reiiuest, and for his luncht -
Held, that tlie sale not being a lire n'h of the
sealed agreement, the ])lea was imt iilijuetimialJe
as setting up a parol disch.arge fiMiii smh .ngree-
nieut. Sanders v. Bali;/, 7 ' '. 1'. -.VJ,
Assumpsit, on a note made by 1 iiliiit jninth'
with A. and B. I'lea, tha" - i; o was ,/ivfii
for the ])nrchase money o! . ciiiM i-..!r siijii In-
jdaintifF to A. and H. , defi.niai't licini' their
surety ; that tlie plaintiff i n such sa! ^'laranteeil
the vessel to be so inn, Imt she wa.s imt siniii,!,
but unsafe uiid roctei , ai iilaiiititf weii kiuw;
and said A. and B. ii.ni.ediately after thu suit
discoveieil the unsoundness, returm.'il tliu vis-tl
to plaintifT, and re)mdiatcil the salu. At the
trial, tl e wi'itteii instrument was iirmliifcl, inini
which it appeared th:it the sale was ta ilifm-
dan*- alone, and no sucli guarantee as allefji-fl,
wai e uitaiiied in it. Semble, that the litfti'
daiit eould not shew, in the face of tlie writiii;
proituce ', that the sale was to A. ami B,, iinttr
himself. Il^nilir^iin v. Cutler, I,') (,». B. ;U,").
Action by the •■•heriir upmi a iiiiirti;ai,'(.' nwile
by defeni,ant to oii'; 1.. seized by tlie .ilieritf un-
der an txecutio'; against L. .An ei|iiitaUe
l>lea, adinittii.g the making of a iniirt;,'a;;e fiT
a certain .anionnt, but eliiiiiing tlmt iiii agree-
ment that certain sums (when ]iaiil as therein
mentioned.) wen; to nave lieeii alkiweil mi thi'
first instalment, for wliii'h this aetimi was
brought, was Held not to anioiiiit to a vari.uice
of a covenant by a parol agreement, ami there-
fore good. Smith V. liernk. 10 < ', 1'. L'-t,').
Declanition on a note made liy detViiilaiit-- 1'.,
W., & I)., jointly and severally, payahle to
plaintifT. Kijuitable ]>leas, 1, liy deft i hint IL,
that he made the note as surtty tur lefemlaiit
I*. , of which the plaintifT was aware when lie
took it, and that after it becaiiie ilue the i>lain-
tifT, without his knowledge, by ileeil rekiseil P.
therefrom. 2. By defendant" W., tliat he an!
defendant 1). made the note for the .lecmiimo-
dation of P., as his surety, to secure a ilehtih.;
to the plaintifT solely from 1'. : tliiit it was >h j[jl
livered to and accepted by the ;'laiiitift'fr"mtlie
defendants upon an expre- agieeiiii"t that U.
& L). should lie liable orly as sureties; ai.'lth^t
the plaintifl; without ^'..'s consent, by iloeil .-"■
1%
picas
time
au-rwii
laiiitiil'.'
nut ;iiiy s'l'
notim-'luiii-'i
the \>l
bvtlic
exci'
utf
thereto
cliarge
tirsi
m ^ 1360
moneys advanced to
5 covenant was mink,
ancoil it was apml
C. wmilcl ni;\ki' tke
;\e)ilf:i, tlicnU.wiiuU
i-cr uit ; ami tliatt,
;, wliureliy A. ljwam«
IS a),'i\'fiiii.'iit : -Htlil,
11 eithi.T til set uii \i
to (lisi'haryi; A. irom
il (which thy emirt
mist 1h'), III-, til assert
jHultcil '.'iiim tliffactj
le alk'goil agrefiiii'iit,
ual (lofouei;. J/r/Vi.f.
B. '_'!».
i thi; \iiiivhas(; moiity
y'uars' iirolits nf wrtiiiii
ik'd agrernieiit, mi iht
two y' ■ iiiii'i cxiiirf'l
liL' share, , ami that tlie
PU;a, that sinli shwes
uinii'oiluctivcuf iiiiilit,
iiig was ill fact at tie
anil fill- his lieiielit ;-
hfiiig a lii'i'ieh iii' the
a was not ohjfctiunaMe
harge from such agree-
7 (.'. r. -Jo-j.
adeliy^l ■iihintjuintly
la' ' ' !:■ '-•'■■ was jiivfii
■ o! ciiii' ''er siilii liy
duftiiitavt l)cing their
'c n such sa'. ;,'iaraiitetil
lilt she was not sinin.l,
ai ]ihiintilt' wcii Iviun;
i.fdiati-ly alter the- sale
foss, ri'turiioil the vis*el
atfd the sale. At the
lit was [iriiihiceil. friiin
the; sale was to ilet'eii-
gnaraiitfo as allepeil,
icnilik, that the ileici'-
10 face of the writilij
as to A. anil B., iintti
.Her, 1. '>•,>. b-;Ua.
poll a mortgage male
zed l>y theslierili'mi-
ist L. An ei|uitalile
iiig of a mortgage for I
aiming that an agree-
when' iwid as therein
e lieeii alloweil on the ^
hich this action \ni ,
ainonnt to a vari.mce ',
agreement, ami there-
Hic wr.v.-m
ii-ide hv ilefcmlant' 1'.,
sev.M-allv, payahlo to ]
:is, 1- liy'ilclVi lautD.,
as surety lor lefemlant j
ff was aware when ho ■
„ became ilne the i.ljm-
Ui liv deeil rcleaseill-
laiit'W-, tliatheaiil
lii.ite for the aeciiimno- j
V, to secure a ilehtili.^
:„ii 1'. ; that it was lie- f^jl
y the plaintiff trom the I
EVIDENCE
13GG
>(l P. Eiiuitalde replications, 1. Tliat tin; being a stri]> on the western portion of the pro
ach refer to the same deed ; that at the ' perty, as soon as said land could be surveyed
(if nii
!,')0 on .■ii>
ikiu" it P. was indebted to the iilaintill Tiie deed to J- included four acres, p.iit of which
account stated, as well as for the at the eastern end was covered with water : —
„nnt of the ni
ite ; tliat it
itended and Held, that the defeiidaiit clear'v was iicit entitled
iilv to release the S'JoO, and not the note ; to ret;
nil -., acres o
tiiat for the purpose o
f so eonliniii'' the deed tin
ivered with water,
f dry hii
mt
ill addition to that
only
)f the
liter his signature tiiereto. " -S-"''-), whole: -Held, also, that parol evidence of the
reties on
this ;
d that the note was ex|)
I, or iuteniled by defendant I', or by the land intended, was
ins and declarations of the parties as ti
lissilile til su|i]iort
vinti
IV to be includeil, in the debts released the defendant's construction of the liomt. '.'
leed. -. That the release was drawn and ('/ »,;■. v. Jnhiixtnii, li'i (^>. H. 7'
,1 hv mistake, the intention of the parties
to execute a consent on
Iv t(
III an action for ille^'al distn^ss before the I'cnt
,f 1'. uni
ler the Insolvent Act of lSli4,
.111
evidence w
as tendered that the in-itriic
it slniulil have been ilrawn si. as to o]ierate
tioiis to draw
the le
dtl
le ,11'iveinent ol
ith
that way only,
'"- - H
sureties: — nc
,t replieat
ailileil forme
fore set up or
that on CI (ui
d not as a discharge of any
demurrer, that at law th
]i:irties was, that the rent should be p:iid i
dvance : — Hehl, there being no ei|uit.ible pie;
would be bad, for the
I no part of the release, and it theie-
il matter to ([ualify the deed ; but
d
that an e(piit:ible defence was not admissible
1 that such evidence was properly rejected
tin
aenil issue by statute, lir
aljH, that ti
table grounds it was sullieieut
Held, -«/'"■•■"■''''. ;^"' <^ J"'- -;^!'-
1 replication was bad. /'i
lat me sect
Wher
nl evide
idniissible to
ntrol
re parol evidence is adniissihle to control
the legal ojieratioii of a deed, no ett'ect c:iu be
given to such evidence if contradictory, or its
aecuraev is involved in doubt. !{<■ Brmrni', 2
■)90.
To an action on certain notes and bills, and on
the eomniiiu counts, ag.ainst defendant and H.,
(letoiiilant pleaded satisfaction and ilischarge be- ''.'»'■
iiire ;iction, by an assignment under seal of do- i>;i,.,,i L-videiice is not .idinissible to shew that
lemlaiit's etlects to the plaintitl' and another tor i,y mistiUc the written bond ilid not exprer.s the
thehimelit of creilitors :"---llehl, that parol testi- true agreement, unless mistake is expres.sly
charged. MiDniuilil \. Rasi, 17 t'hy. ().")7.
iimnv was properly admitted of the agreement
to aeoept the assignment in satisfaction and ilis-
chaige, the ell'eet of it lieing not to vary the
writnn', hut merely to prove a collateral fact.
mmjw Willi, 17 C. r. 474.
All instrument under seal may bo varied in
ecjuity by an agreement for valuable coiisiilera-
tion, not under seal. Urmrn v. pi'tiroii, 12
! Q]iy |OjJ
Tlie description of a lot by metes and bounds j J- • ■
from the crown lands department, is admissible ' An alleged parol agreement .said to have been
iiieviilcnce to explain the patent for the lot, in entered into eonteniporanconsly with a covenant
which it is described only by the number and under seal, was not iiermitted to control the cove-
concession. Jla'jdrlii V. Bilttuii, ',W i^). li. ',V1\. nant, the parol agreement h iviiig been proved
by one witness only, whose intention to speak
the truth was admitted, but whose recollection
was not ciiiilirined by other evidence. A» ('■(.>■ y.
Ji'vhsuii, 18 t'hy. ;{!I5'.
Rennrks as to the nature of the evidence ad-
niissililc, -documentary eviilcnce, plans, conduct
ci the iiarties, &c.,~-in order to ascertain what
hml was intended to pass by a patent. Jit-ini v.
fti//ii//(/.<, 34 Q. B. 174. See, also, C/nrk-y. lion-
misih; 3 0. S. 528.
biclaratioii, that defendant leased certain land
Parol evidence is admissible to reform a mort-
gage which omitted land shewn by the mortgag(jr
to the mortgagee as part of the pro|ierty to be
mortgageil. SlvrrliniU.-t Bank oi' Canndn v. ,lAor-
plaini '
o;h. .
le-: agrecuu'
i.t that W.
ly as sureties ; a..'l tbit ]
Is consent, by dee.1
pbintiff for a year, ami covenanted to ,.;„^ -pj ^.^ . j
: . 'tlnn the term, or to pay the m- •'
■ ot . vear (ma mortgage given by the ' The amount mentioned in a ooiiveyance as the
'on the lam', t'lit did neither. Plea, that consideration money is not conelusive evidence
otiil hy th': same ileed, thiit if the plain- of the true eoi^iiler:ition in favour of tin: veinlor,
d, during the term, sell the laml to an- on a bill tiled b ■ him impeaching the transaction,
, ;v ulant should not pay the interest, aiul on the ground of inadeipiacy of price. Slntiik v.
i tiiiii tl c plaint il' sold and (lefendant gave up Cok/^Akc/, H) (iiy. .'{24.
j possc'siuii 111 the purchaser. Replication, that \ . , . . , . , , • , ,
befoa '.he term expired defendant notilie.l the ' ^^ '"•^" ''>' j"' "'f"'''"''! instrument assigne.l to
i plaintr that he would m.t purchase, ami re- , f.'^'''^^^'^"; '^'f '"•1^«'^''t^'.'""' eftcefi on the eondi-
(iue4cel Lim to .sell, and that the plaintill in eon.se- ''"", "f ^he trustc'c: paying to each <.t the children
mncc so d, hut subject to the defen.hmfs term, ' °f ^'"^ assignor S'40( . Mibse.piently tlie grantor
J .hich is the sale alleged in the plea :- Hehl, ; conveye.l to one ..f his s(.ns a honseanil prenii.se.s
i after -.erdict for the i.laiutitf, that the replicatifm:^''^'"'^'! at *200 :-Hehl, that the trustee eoiild
U was had, as attempting to vary the <leed by a \ ""* ^V^* t\x\^ nv ;« p/irt satisfaction ot tlie .^4<)0
in./ . mentioned in the lirst deed ; and that declara-
tions of the father, made subseipiently to the
assignment in trust, and the ccaveyaiice to, and
in the absence of, the son, were inadmissible to
shew that the conveyance was made, and inten-
ded to be in part satisfaction of the sum so
secureil to the son. 1'he decree in this case,
reported IJ) Chy. 288, allirnied on rehearing.
MuUwlland v. Mvrriam, 20 Cliy. 152.
ipting to vary
I ivuiil agreement ; and a venliet wa.s entered for
I (If'-nilant. Malutt v. Varmtdihn, \M Q. B. 3()3.
The I'.pfendaiit gave a bond to the plaintiff in
%\-^ , ••-" iiif, '-hat he had that day purchased
.uinlaiilkiMwn as the mill property, in the
vil f>go ;,i' t., and fully described in a deed made
hv one J., and conditioned to convey to the
uitiff ■.11 the land in said deed over 2J acres,
,P1^
" 'oG7
EVIDENCE.
m
2. 7'f- r
VIll"
li(iui(liitiim of tliu saiiK', '■■:
II' !-t-iti"l in coiinc'otidii with tlie
•;<'e iliat may Ix; Cdiiiing
u saiil coiiijiositidii, to 1)0
It) iiniouiMlH
Is (pf tiio saiil
iii'i/ or Exphiiii (ilh( r ]\'rifiii;i-i.
'I'lic ooiirt w ill ruifivc |iircil uvidciu!!.' ti> rectify
ii \» rittcn iiistiiiiiiciit, notwitlistiiiuliiig tlio l.iii-
guagc usL'il «a.s that iiitt'inli'il liy thu parties,
■wliLiv the legal ell'eet iifsiieh language is dillereiit
fi'olii what was the iiiteliticiii ami agreement of
the (>artios. J[< n-l/f v. /-•->, -J ( >. S. L',"i. ( 'hy.
Knilorsee (•. Kiidnr.ser of ii note. IJjxdi the issue
as to whether the chiiin ii]m)I1 this note was or
was not inehiileil in a eertain eoniposition alleged
to have heen entered into lietweeii tiie defendant
and iiis ereilitors, the following meinorandiim in
writing, given liy the agent oi' the creditors to
the ilefendant, was put in evidence ; " I herehy
acknowledge to liave received as agent for the
creilitor.-t of It., whose names are s|pecilied in the
foregoing schedule <if creditors, the ]iromissory
notes as stated in the foregoing schedule, to he
applied, &c. Ami I hereliy discharge' the said
It. from any further lialiility for or on account
of the said claims, save and except the claim of
T. & ( 'o. and (1., the same not yet lia\ iiig heen
ascertained liy reas<in of an etjnitalile security
on certain real projierty of said I!., hut 1 have |
taken security f)n said notes fiu' 7s. (id. [ter pound '
on the wliol' <>' siid claims of T. i^ Co., which is
to he apiilie
any balance ,
property, aiv'
to K. after pa; o
returned to him
notes." And he aUde>i ihe.se words : "I have
received the within noti'S mi aceonnt of the
within mentioned claims, and I do hereliy dis-
cliarge K. in full of all the .Montreal claims
excepting T. & Co. and (i.'a collateral claims,
anil in aecordance w ith niv letter to II. of August
last." This was signed (let. '-'.S, !.S4.') : - Hehl,
tiiat the aliove memoraiiduni so clearly e.\ee|ited
the ]ilaintill"s claim upon thi.s note from tlie I'oni-
position, that parol evidence with respect to its
meaniim was inadmissible. Ilalilm \. Rtn/iit^, 4
Parol evidence is admissible to deny the re-
ceiiit of value for a bill or note, but not to vary
the engagement to pav the amount at the time
speeilied. Jhiris y. J/rS/i, rn/, 7 Q. H. 41)0.
AVhere the defendant, however, at the trial,
disclaiming any «is]i to succeed against the jus-
tice of the case, assents to the reception of [larol
evidence to jirove the understanding on which a
note was given, and a verdict is given against
him, ho cannot lie allowed afterwards to argue in
banc, the technical objection he had waived at
the trial. //>.
" l'"or value received, 1 jiromise to jiay James
Met,|ueeii and .(aeob Md^neeii, or their order,
the sum of t.'l02 l.'js. cy., to be paid in yearly
proportioiLS : '- Hehl, that no paiol evidence
could be admitted of an agreement that the
money should not be payable for four years, or
until after the death of the jilaiiitill's father.
Mc(ii«'i'ii ri III. v. MfQin:iii, !) (l K WM).
Action for wrongful distress. The plaintiff
produced a receipt dated .'?nl March, 18(10, for
rent to date : — Hehl, that parol evidence was
iidniissilile to explain the eircunistanees under
which the receipt was given, but not to vary or
control it. Butii-errilk v. JJoan, 12 C. P. 127.
Declaration on defendant's bond for the per-
formance by one H. of he covenants in a lease
of land to II. from the plaintiH', allcginy tlmt li
tilereliy covenanted that he would liy jlj,. |^. ■
March, IST.'J, divide a certain lidd 'di, tlici,,-!'
niises by a rail fence into four licMs i,i i., '„'|
dimensions: breach, noii-perforiiian''ij \,\ u
Ki|iiitable [ilea, that in the s]iring ni ItiJ'j ([
part iierl'orin;iiice of his covenant, civcteii "
fence across the held, so as to divide it into tw
parts, and tiiereafter, while there was tiiiif i„,
him wholl\ to perform his coven.iut. Il.i(.'(|m.,v[,'.'i
tlie ]ilaintitl' to extend the time foi- i-r.'itiii" ti''
other fence until the 1st of .Marrli, Is;.)^ ^d^jl
the plaiiitill' did verbally, before the tiiiic I'i,,'
performing tiie contract had ehip.-cl, withipiit
tiie knowledge or consent of the dclciiiluit ai 1
such extension remained iinrevokcil until uitw
the time for i>urforiiiiiig tiie covenant lr;,'u tii'isi,.,!.
■ Held, on demurrer, |)lea bad, as sliowin , ||,|
binding agreement to give time, and S(.'ttiii"';i|,,i
new contract, not founded on any cuiisiilrratji'ii
to coiitr.-iilict the written one. /•'./;/• v /',,„, ;/,'
:ii(). H. (ill. •'
.S. A iiilili/iii/ii (it III r'i//i/.
In trespass for cutting timber the i|iicsti(iini.i.
in which of two towiishiiis there wis an ullnv-
juice for road, and the grants from tin; Cniwii ii,,t
ilicit, parol evidence was ;i(hiiitt((l
Millrr v. I'niiiii r ,7 nl. , ;{ ( i. s. 4;;:,.
icing very explicit, pai
on both sides '""
In actions in which the king is a partv, in tlit
eoiistriiction of grants from the crmvii, wlaic
there is an ambiguity in res]iect of th..' nninisi-.-
as, for instance, what is to be coiisidenil tju-ljank
of a river, other grants from tiie ciown iiri' ail-
missible to assist in the coiistriictioii. ('Iiiii,i
III. V. JiiDiiii/auslli, 3 ( ». S. .V.'.S.
I'emarks as to the nature of tiie eviilona' ail-
missible documentary evidence, plans, cmiilikt
of the parties, etc., in order to ascertain what
land was intended to pass liv a patent. Jmrni v
/f'!/iii,lil.<, -Mi}. H. 174. "
The following draft or order dirccti'd tudukn-
dant ill favour of plaintill', ami sigind liv \V. ;
"A. Ker, Msij,, treasurer, town of (I.ilt, '|'l,.asc
|)ay to I-;. S. Cutten or order tlic sum df siiil,
and eiiarge same to my account. ( '. .\. Williir,"
was accepted by defendant in tiicse terms: ".-Ic-
cejited, )iayable from the tir.st niniiey.s t(i lio|i;iiil
Mr. Wilber. A. Ker." The evidciuu .sluwiil
th:it \V., being a sub-contractor fur a'ltiin
work about the town h:ill of (i:ilt, ;iiiil having
an unsettled claim against the cor]ii)r:itiiiii lor
extras, gave this order, and that it \v:is iiinlcr-
stood at the time, and in ]ilaintill"s [ircstiia',
that it wa.s acce]ited only witli refcrciia' to tlie
moneys exjiected for such extra wcrk. .Alter j
the acceptance, defemhint, as trciisiinT, ami mi
the order of the committee, of wiiuiii the plain-
titr was one, ]iaid \V. certain moneys fur wurkj
done upon a bridge, the contract fur wh
however, had not been entered into, ur tveni
eonteinplated, until after the acce]itain.'u of the]
order in (|uestioii. Snlise(|ueiitly it wasasaT-.
tallied that nothing was due to W, fur ixtnj
work on the town hall. It did not acinar tliatj
the plaintitl' had ever ajiplied to defciuiaiit t»lie|
paid the amount of the order out of the nKnicysj
due to \V. on the bridge : -Held, in an lutionj
by jilaintiff against defendant (iiiliisaeeeiitaiice;
that the evidence failed to shew that ilefemiaiit
had ever as an individual received any inoiitysi
136«
HV, alK'-iiiu tliiit li,
Wdiilil liy tile Ui ,ii
ill liflil iiu tlm iirt.
I'oill- \\Ms (il njuil
lUl'l'lirnilUlrc l,y II
l.viiiK "I 1^7-, il.,ui
■(ivfiiiuit, iM'ickil a
t(i ilividf it iutii two
1 thci-f WHS tiiuf idt
)Vi'iiiiiit. ILri'inu'stol
tiiiif fur i-i'.'.tiiiL! the
M.utU, ls;4, \iliicli
\)ol'i>ri; tlio time icir
;iil ulaiiMil, ttitlumt
if till-' iK-lcinliiit, mill
iiuvvdUiiI until iiliw
covenant li;ii>:':i)isfil;
I bail, as sliowiu/ im
tiiiii!, anil si'ttiiij; iiji,!
nil any riiiisiilriMtinii,
.111'. F'i':i' \. /'m'I/'w,
<!(ii< fiill;!.
imliiM' tlRM|Ufstinn w^
IS lUiTc was an iiUuw-
iits from tin; (.'rnwii U'lt
fviili:ni;i' was ailiiiittvil
iilni'i- J I'i, WO.SA'IX
■ kinj; is a I'arty, in tlit
rum till' I'l'iiwii, wlkTc
I'L'sjR'i't of till' pri'iiii#i<,
ilii' I'oiisiik'riil tlK^liaiik
from till' iTiiwiiaroin!-
cuiistrnrtiiin. Clitiic
;, 5-28.
jui'i' of till' I'viili'iici' ,iil-
iilciii'o, I'lans, I'.inilmt
(lor tu ascertain what
liy a \iati;iit. Jmon v.
inli'r iliii'i'ti'il tnikltii-
IV, ami si_L'iii-il liy \V. ;
luwui'f ilalt,-riijasc
.i.li'r till.' sum uf sl'.H,
unt. < '. A. WillRT,"
lit intlii'si' tonus; "Ac-
lirst moneys til liojiaiil ,
Till' eviilL'iii'usln.'Wt'il i
...iiitractor fur certain i
ill of (!alt, ami having i
list tlio eiiri«ii'atiimtiir
villi that It wasuniliT-
in |ilaintill"s iirt'Stun',
,■ with refoi'i'iia' t" tk
L'h extra work. Al'tiT .
\t, as treasurer, ami "«
tee, oi whiiiu the lilai"-
■tain niuiieys f»r wnrk
le contraet fi>r wh.'.li,
entered into, or iviul
the aeeeiitaiia iit the j"
leuueiitlv it wasasaT-
^s due tiiNV. for extra
Itdidiiotairartliatl
,,liedtoaefeii.laiitt..l«|
lirder uut of tlie immeys
■ :- --Held, in an aotn'ii]
idaut ouhisaocqitaiice;
|t„ shew that aetenaant
il received any moneys I
13119
to lie l>!ii'
caiin;
curl"
iinral
till' latter, :
EVIDENCE.
1 :^7( »
1 to W., lint tliat the only moneys that maturity of T. iS: Son's note, "to jiroeuie tin;
to liis hands were moneys hiloiiixin^' to the saiil T. k Son to renew tlieil' said fi'i'Mt note, liy
;itiiin. •""'"'''''''''"* ^'''''^**"'''''' "' the I'or- iriviiii; their seven proiiiissory notes fo
iitioli, 111' «'•■'
lioitiiil to pay out as (lii'eeted liy amoniits pavalile to »/// niulii
id
1 that the iiionevs \\ liieli he hail
two, and three niontlis.
pay
■1,1
il
iMe
I to \V. had liec'i iiaid t
(liriction ;
liiiii iiiiiler siu'li
till' words
pay
ilih'ti
I lliv ol'iler
Held, that
did not
Held, also, that even rejeeting the sarily iniliort
an iiiu'oiiili
tioiial endorsement 1>
expr
■as cvnleiice
tl
lo iindei'slandiii
•Il (if defendant of the se\i'ii notes, Uiit iiiiiiht mean
tliesarroninlni
k't'U gi
;^ f.'ietsas niioht iiidis]iiitalily have only such an endorsenieiit as would ]iass tli'
veil m evil
lene
fiiH
V warranted the
property in theiii to the plaiiitill': tliat evidence
elusion
meant
k' p:"'
town 1
that the lirst inont'ys to lie paid to \\'., of eoiiv ersatioiis lietweeii
tl
le
partu
'ton
the lirst inoneys that minlit lie ordered to makiii;,' the aLTieeinent, ■•iiid of the siirroniidiiiL
,1 to him "II iii''^ elaim for work on the eireiinistaiiees, was therefore admissilile to shew
Seiiilile, that the instrnnieiit sued its tr
lie nieaninu
■(illtiUlU'l
,. the view ei
1 a latent ainliiynity, and that ill that for ST.'iO, also payalile to defem
d it appeariiij,' that the note
laiit'i
iteiided for liv defeiidalit, that endorsed liv defendant " without ri;eoiii'se,
111
the iieei
iitaiieeliiust he eonstriied as refei
the ilaiiii fur extra work, won
hi
d
to that the plaintiH' desioiu.iUy joft tin; a^'reenieiit
itfnl.
so as to insist upon an uneoiiditiona
a\irine
lit air
[ proof, and that the latter would endorsenieiit us to the other;
Held, that he
(ullv sustain siieh a defenou. t'litlin v.
Hi eunid elaim only that these notes should he
endorsed as the lirst one was. .)!<■(', ir//n/ v. !'(//<•,
'2-2 C. I'. 458.
4. h'.r/i/illlil/iiill of H'u/''/.-..
Itv a iioliey of iiisliraiiee on a "gener.il stoek
1,1 iniu and hardware," it was provided that if
..luiiiiiwiler were kept on the |ii'i'iiiises without
written I'oiiseiit, the poliey should lie void. Tu
^iilea settiiio lip a lireaeh of this eondition, the
iilaiiitilf replied that it was well iiiiderstooil liy
the iiart'cs that the Words '• general stoek of
iri.il ami hardware," iiieluded gunpowder in tins
and canisters tu the e.xteiit of •-'■"illis., whieli was
the "uniiowiler meiitioneil in the jilea : Held,
that"tlie replieation w.is had, for the eondition,
nhieh wholly e.xeluded guiipowiler, eould not
lie thus iinalilied hy parol evideiiee. Mii.ton v.
r/i. Ihiifwd Fiir /ii.<. L'o., -2!) (i». I'.. .'iS.'i.
DefemlaHts euntraeted in writing to pureliasu j
irmn laaintilV KMIO " iirinie " .saw higs, at .so!
imieh per lOIIOeuliie feet, which defendants sent
their ai'eiit til eiiU and measure. Plaint ill' eharged
theau'unt not to select any that did not conform
td tlw contract, hut notwithstanding this the
])i an action on ;i policy of insurance, Held.
th;it the term " inachiiie and repair shop," did
nut necessarily iiieaii a sliup in which iron wurk
alune is to lie done : tli.it it was properly left to
the jury to say w liether the luisiuess carried on
there, of making shingles, w.is that of a iiiaehinu
and repair shop ; and that the evidence set out
w.irrautcil their linding that it was. <'hi'jtV„i v.
I'riiraiciiil /ii.tiiriinrc Co., 'J.S ( '. 1.'. "278.
In an action on the folluwing agreement : " Duo
W. M. i<m), pay.ililc ill luinher": Held, that
" liimlier " lieing the general term used for dif-
lereiit kinds of luinliei', iiaml evidence was
admissilile to shew what kind of lumlier the
liarties intended, namely, "culls and joist.s."
.1/'',|./;. v. Sills, •J4('. P. (iOi;.
5, Piuihti til Ciiii>riii-I.<.
I'laintilV sued defi;iidaiit for Innilier fiiinislied
on the occasion of the i'rovinci.il .Xgricnitiir.il
.., ^ 1 • J. „ . .t „, .1 1 Society's meeting at Hamilton. 'I'lie defeiu'c was,
.v'tiit. wit loiit coinplaiiit or eomnieiit, niarkeil .,..,■ ■ , '^ ■ 1.111 111
y" ' .", .14.', 1 I ;„ f, tiatt 10 society, an incorporated liodv, was liahe.
the logs with defeiidauts' mark, designatin
them as of two i|u:ilities, and defend.-ints, instead
(if refusing! them, accepted and used tlielii, with-
(iiit iiiforining plaiiititl' of the mode adopted liy
their agent, or giving him the opportuuity of
shewing that the logs did in fact cuiiforni tu the
cmitract, and at the same time refused tu pay
iir the second (piality more than half the price
i nareeil to' ho paid fur "jirime" lugs. On the
trial of an action liroiiglit to recover the full
ciiiitract price of the logs (for which the jury
dive a verdict), a witness called hy iilaintill' was
; .iskeil to explain the meaiiing of the word
'■prime," and as he stated that the word h.'id
and not defendant. The learned judge left it
to the jury to liinl w lielher defendant had con-
tracted iiersonally, or as uiie of a eonimittee who
undertook to superintend — in either of which
events, he held him to he personally lialde ; hut
the jury were told, that if he contracted only as
repieseliting, or on lielialf of the corporation, ho
would nut lie liable : - Held, that the direction
was correct. !>iiii/i':nii v. ''(()•/■, "> (,). 11. ',\2C>.
Ill an action for work ,ind lalxmr against .\.
and K. the plaiiitill' put in an agrcenieiit headed,
" .\n estimate fur the car|ienter and juiner wurk
of a lirick cottage, tu he done for \Villi;iiii
III! technical iiieaniiig, and was not used in the Walker," (defendants' father.) Then foUuwi'd
the specilications, and an agreenient hy idaintilt'
to do the Work. Receipts Were emlorsed. signed
liy the ]ilaintiir, hut not saying from wliniii the
money w;is received. Tin; plaiiitill was not tu lind
materials, and no time was mciitiuned for com-
pletion of the work : - Held, that parol i;videiici;
was admissilile to shew that defendants were
lialile on the contract. Ihihliaril v. Widktr el
ul., my. B. i205.
traile, his evidence w-as (dijccted to liy defen-
ihiiits' counsel iHcld, that the evidence under
the eireuiiistaiices wiis admissilile. S/irtiij v.
1 i:<d-lnmi el ul. 19 C. I'. ti.'J. |
hi an action on an agreement, hy whicli-in
I eniisiaeratioii of the plaiiitill' giving defendant
I Lisprimiissory note for .'*4.'-t8, payalile four nmnth.'i
afterdate, as the purchase niiiney for a, note for
SillOniaile hy T. & Son, having then ten months
to run, payalile to defendant's urder—defeiidaiit
Jgreeil to keep the plaiiititt"'s note renewed until
tk maturing of T. &. Son's note; and at the
Assumpsit on a note made liy defendant jointly
with A. and li. Plea, that the note was given for
the purchase money of a sehouncr suld hy plain-
,J .( Jllipp"
f
1371
EVIDKNCE
l:i?i
tilTtii A. .ind H. i'.',l"oii(liiut 'loiiig their surety :
that tlu! jihiiiitili' on sii ii wale giiaraiituod the
vessel to l)e simml, Imt slie was luit soiitul, Imt
unsafe and rotten, as [ilaintitl' well knew ; and
said A. and 15. immediately after the sale, dis-
covered the unsoundness, returned the vissel to
jdaintit!", .ind reinnliated the sale. At the trial
the written instrument was iirodueed, from whieh
it ajijieared that the sale was to defendant .•don(^
ami nosneh guarantee as allej,'ed was contained
in it. It was Jiroved that A. and Ii., after kee)i-
ing the vessel a fortnight, tendered her hack to
the iilaintill', l)ut she was refuseil, and they went
on Using her. f>enilile, that the defendant could
not shew, in the facj of the writing produced,
that the sale was to A. ami B., not to hiniselt',
Jliiiili r.ioii V. (\itti r, 1"> (jl. li. '.\Ai\.
A marine jioliey was in this form : The .Ktna
lnsi\ranee comiiany of, ite. ,on aceoinit of V., loss, |
if any, ]iayalileto M. in gold, ilo make insurance, i
&c. : — ileld, that the contract on this policy'
was entered into with ('., and that making the
loss jiayalile to M. did not make him the party
insui'eil. ScUililc, that the insertion in the policy
after M.'s name of the words "for, or in the
name of all 2)ersons interested," &c., or "for
whom it may concern, ' would have enabled .M.,
on shewing interest, to recover ; also, that the
words, "as broker" or "as agent," f<dlowing
after t'.'.s nanu', would have let in parol evidence
to shew ;;l;e interest and right of an undisclosed
principal ' could have sued on the poiicv.
MrCiill' .. .. J'Jliiit /iLsiirance Co., 20 I.'. I'. LVS!».
See, also, Eviry v. /'rurlnciid InKiintiici' ('o., 10
c. r. 20.
ffi. SHlijrrf-.)f litter of Contmct.f.
By an ngrenient under seal between the jdain-
titTand B. , B., in consideration of seven cents
])er foot, agreed to deliver to the plaintitV at
tioderich harbor 14, (HM) culiic feet of good elm
timber, to be of specified dimensions, and noth-
ing but gooil sound rock elm ; the plaintitl' to
draw it from the Imsh, and leave it on the liank
of the ri\er ,Maitland, and to pay at certain
periods named. In ti'over for such tindier,
which the ilefcndant elainn;d under a purchase
from B : — Held, that the agreement clearly did
not prevent the pl.iintiH' from shewing that the
timber to l,>e delivered belonged to him, and not
to B. Litlh' V. Foil II, -Jl (I B. 177.
Defendant ami (mo H. agreed to purcliase from
plaintiffs all tlieir claims against an incorpor.ited
company, and their interest in the same, and, as
far iis the)' eoidd sell it, their control over the
charter of the company, for .'?H,(MM). Oefendant
ami n. subsci|Uently gave pliintiIVs a written
promise to pay the price agreed uiion " for the
charter," as expressed in writing: Held, that
evidence was admissible to shew that the subject
of the s.ile was not the franchise itself, but a
mere claim against or right in the comp.iny,
capable of being legally sold. Milkr i:t al. v.
T/iiiiiijtion, Hi C 1'. 613.
Defendant Wcas a shareholder in a company, of
which some of the cai)ital stock subscribed for
had not been taken uji, and these shares being
otl'ered to the stockholders at (!0c. on the dollar,
defendant took some of them. On the '-'.'{nl
^lareli the plaintifl" agreed to purchase the de-
feiidaut's shares at iil^c. in the dollar, and on
the 2r>th March tlio following transfer w,u
cuted : " For value received, \V. R s iLJi^"'
and assigns to.l.t. tout teen shares, dn ,,.. i .
which iias been paid .S">(H), anioiintiii;; to tli ■
of i-i7tKH), in the capital stock of tlu^l.uli^. !<'"'"
rior Navigation Company," i\:e. : llcl,|, jj't
tllllr
M
rior Navigation Company," Ike. ; \l,.[,\ .
evidence w.is ailmissible to shew that attliMt
of the sale on the 2,'h'd, the plaiiitilf wa.s t 1
tiiat these shares liad beei
tiiey were paid up in
directors and tlie
tulo.dyasl.t.,,,;;,
sharehold.'rs ; I,,,- tl,i.. „,„
e\idence to shew what was the siilijtct ii,,tt.
of the contract ; and the transfer \v,is unf il
concluded bargain between tlu' parties l'
]ilaintill' having sued defendant tci rii'iivir tl'-
dill'erenee : — Held, therefore, th.it lie ii,i|],l ,,„,
recover. Chirk v. Sanj'iinl, 2.") C. 1'. ^jti
7. Ti rill.') II lid /iiriiliiit.< of Ciiiitrurii
Contnicf.- riliifiiiij to /.'"^x ) - A., l,y i„oii,,,.
rantlum of agreement, leased to B, a f.inji i„r
four years, wiiich B. agreed to work, &u.- ,ii,J
if A. sold the farm, he (B) wouM give it i',,', ,„
three months after notice. A., bcfiiro his ilath
s(dd to ('., from whom B. le;iseil, ami li, suei
the administr.ati'i.v of A. for r.'pairs iliml. ..,
the farm during A. 's life, allegiui; tliat tlnrc
was a veri)al agreement that siicii iiMpniveimntj
should be paid for by A. : llfld. that tlnMctM,
was not maintainable, there being nn stiiiiihti,,!!
in the lease as to ini]irovenicMts ; ami that the
plaintitl' eould not (jualify or add to the written
instriMucnt. Ak.-vi v. A'cro;-, 5 C. 1'. Ji4.
In an action on an agreement un.kr seal to i
accej)t a h'.isc :— HcM, that [larol eviiluiioi.' was
not, under the circumstances, ailniissihl.'tusluiv
that the iilaintill' w;is boinid to eoniiilctu lertain i
repairs before calling on defendant bi acfopt, i„r ]
this Would l)e to aihl to the sealed .iL'rmniiit
0'.V< ;/ v. J/mij/iam, 9 C. 1'. 14.
Action l>y lessee agaiiist les.sor <iii a c(iven,int|
to deliver possessiim of the deniLscil iininisej
to plaintill'on the 20th of .March, KS()4, as-iuiiii' 1
as a breach that defendant hid not iklivtrfJI
liossession to |daintill', and had ileiiiivcil liiiu
the use of the land an<l ]iicuii.sfs. Offtiulaiitl
lile.uled, on eiiuitabic grounds, tli.it thi; iilaiiitilfj
iiy an agreement in writing executed C(iiiti'iii|itin- j
neoiisly with the lease, in eonsidcratinii tliat.le- j
feiiilant /((((/ liii.-iiil to liiiii the pruiuist* men.
tioiied in the declaration, which weiv tluiiinj
the possession of one \'., who hail ayrwl toj
surrender jiossession by the said :!Oth .Mareh,f
agreed not to bring any claim or daiuaLif ag.iiwt j
defendant, if possession eoald not Ik- olitaiiieill
on the day as provided in the deed ; averring]
that on 20tli March Y. was and cmitiiiiieil inj
])ossessionof the ]ireniises, and refusi'il tdiltliverj
them up to defendant, who, coiiseinieiitly, imiiil
mit obtain jiossession thereof on tlir s,iii|ibv,|
and eould not liy reason thereof deliver ]»i<ses|
sion on 20th March to plaintitl'. I'lamtitl iieir|
iussigned that he brought his .action as well n'rl
the eau.ses iittempted to lie jiistitieil as fur uo^
giving possession of the premises en the L'IsB
Alareh : - Held, on demurrer to Imtli pliM anl
new assignment, ' that the ]ilea was hail as a
legal defence, for attempting to .alter an inJ
strunicnt umler seal by <iiie nierel' in writinf
not under seal ; as a legal and ci|aitaii
fence, for want of a gi.iod consideration ; iillvgiu^
U''»ilr,icl.i iif .ii,l,..]^\
pt.\ iiroimsiiig to sell
>in Slim, the jiroportii
lisiiraiice then eli'ected
Fiiiy bad yet to run,
pser ill ua-sh. The pi
ly, and a re.'iilar a
I'll to ilefendant, i
li'iiisurance was made :-
pglit nevertheless recovi
P'lants. J/n,,.„„ y. /;,•„,
Ipci.laintiff.-igreed ve
tmuit, to he got out
1373
EVIDENCE.
1374
. jjj .J nast cimsiileration as thiit on which ] timber limits liultl l)y licr from the Crown, for
'h.'i'reeiiuiit wa.s lascil. 'I'liat if it was in- j "iOs. por thoimaiul ft'ct, i)aya1)lo on its arrival at
.'ill til lie urgi'il tliat the aj,'rcoincnl was (,)u"l)i'i.'. 'I'Iil'si: limits liad fornnrly IkIoujiimI to
" t"'f tlio iiistninu'ut uuilor seal, and cxccuteil her liiisl)anil, of whom siic was ailministratrix,
r"^ ' i„..,„,.,iiisly witli it, it was not so stati'il ; | ami it was agriu'd, dcfi'ndant licinj,' a jiarty to
'"" "^^ ,.il tii'fori' the lease, and as part of the \ tile arranj^enient, tiiat iialf of tiie irioney siimdil
1)0 a]ililied towards payment of delits due hy tilj
intestate. .\ written aL,'reement was tliell signed
l)y plaintiir, intended to relate to the payment
of iier share only, l>y wiiieh siii' aj,'rei;il to sell to
defendant the ri^iit to eut tile tindier at lOs. per
tlioiisand feet: -Hold, Uoliinsoii, t '. .1., donl)t-
,.;tV liil.l the lanil unuor an nmeniiire oi ; ,, , ., ,' ,, , , .
aiiitin "Y , , t . i.1 »■ ,; ,, c, „ „„ I 1 MIL', th.it ovnlenee ot the vi'rl)al a;;reement waa
( itendant, on the ne''otiatiiin tor anil '" . ... ,, -i- i- i T . • i
" I li^.j i adnnssihle, as tlie writnii,' did not eontain, and
,-, . f „•.." fi,.,f .1..,,.,, 1 was not intended to eontain, the whoh' aifroe-
theiii. :iiiil till' true a^'reeii.oiit « ,is, that_ deion- I
■|,,..,ti,,ii for makiiiL; tlii' lease, it was not so
Deolariitieii for breaking and entorini; the
tili's eliise and eiitting and earryiiij; away
rle.i, on ei|uitable grounds, th.it the
plain'
'^ " ' " 'eld the land under an indentiir
lt:i»e friimii
txociiti"""' " lucli it was verliallyaiiree.
., • 1 ,. J ,,t I ),.,„,.. ,f , inoiit l)etweeii the parties; ami that tile nliintitl
1 .,f =liMii\il nave the iliiht to enter and liarvest ,, ^, . ,, ' ' .,,, ..■ ,
iWit-'i""" "•• , ?,, 1 . „. 1 1 ,. i,;„, . *i,.,f therotoro niiL' it reeover tlie 'JOs. iior thoiisiud
,1 . ,11111 tKii in the ground so\\eilli\ him : that ; ; ■ .. •,; ..i,> u uvi
tilt' iii'li oiwi n ..„,...(;,.,. ,.f loot. ( /iiiiiilii'iidiii V. Siiiilli, "Jl U. 15. lO.J.
nluii tlie lease Wiis e:;eeilted a reservation ot ' *
qtih n'M hi it was suggested, but omitted on j Tho jilaiiitilF sued defendants n])ou a eontract
in iihiintilV's assiiranee that it was iinneeessary, I by them to ptirehase from him 4()0(t b.iriels of
.rthe :i"i'eeiiient between them w,is well under- ernde i)etroleiini, elaiuiing d images for the loss
iv.i.l, iiliil ilefeiidaiit Would b<' allowed to take | df a large ipiaiitity di'stroyed by an aeeideiital
,ijf\.riiii; mill that the entry, it e., in pnrsiianee tin;, and wliieli ho alleged should have been
pi qiili aL'reeiiieiit, is the tresjiass eomplained of : | previously taken by them under the ,iL"'eiiiient,
_f[„l,l, that tlie i>lea was good, for the indeiien- j which bi'miid them to take it as fast as their
ileiit ve'i'hil agreement, made in eoiisideration of ■ barrels could be reeeivei', eiiiiitied and returned,
(ti.'i.ii.l.iiit sit;iiiiig the lease, was good as an | 'I'lio defendants refused to accept, on tho ground
: iirrrt'ineiit. tliimtrli defendant by the 4th see. of ; that the oil was not of the' cpiality eoiitraet'd fur :
'the Statute iif Kriuds, might be prevented from ' - Hi^ld, that evideneo was inadmissible that, in
.uiiv'iiuit ; and as eipiity in siieh a ease would conversation shortly before die written agreo-
dwree speeitie perfornianee, there w:is ground ; mciit, tho defendant spoke of agrooing to roeeive
^ "■ ''' '' six or seven car loads per .veek ; and such evi-
dence having been received a new trial was
granted without costs, ^'uhlc v. Sixiircr rt til,
Tt (l H. -JIO.
Declaration (|. e. f. for cutting and removing
trees, with a count in trover and the eoinmon
counts. Pleas, leave and license ; and .i special
oiplitable plea, setting up that the ilefeiidant,
Vioing owner of the land, contracted by parol to
soil it to the iil.iintitl', and that at the time of
such contract and of the conveyance of the laiul
to defendant, it was expressly agreed that defen-
dant should have certain trees thereon, and bo
at liberty to cut and remove them, but that such
reservation should not be, and it aeconlingly
was not, inserted in the
ffor:i I'eriietiial injunetion ag linst this aetimi.
iQuiw. whether the plea was not also a jnstili-
Icjtiiiuat law, as under an agreement wliiidi was
Idiil til priitect the defeiulant, though he could
iBot have enforced it by action. Mcdiitncsx v.
lit/Ill.'.^/, -i!) k>- 11- 'J^-
On a treaty for the lease of a mill property
iktweiii the executors and the trustei:s of a
Ite'.iseil iiwiier, and an intending lessee, the exe-
[cntoi-s ami trustees expressly agreeil that they
lirnulil rthiiild the dam upon the ]ireniises, and
rilhmit thisau'reenieiit the lease would not have
LJistfil : - llelil, that such agreement could bo
jeslililisheil by parol, and was binding im the
estite iif the testator. Ii> re Md-^oii (.ml Sn,l/, 21
fhy. llili; allirmeii on rehearing, //>. (>'2!».
On appeal the above decision was reversed.
conveyance ; and that
the defendant entered and cut tho trees, &c. ,
iocliaii agreeiiioiit, tobei>rovableby parol, must ' w Inch are the trespasses, itc. The defendant,
lotiiuly lie eiillateral to and inde]iendent of the : as a witness at trial, having ])roved tho sale of
itteii'i'iie, but it must be consistent with it. th e land, it was pro[iosed to shew by him the
ere the lo.a,se bound the lessee to do what by ' ag roenieiit as set up in the eipiitalile plea: Ifeld,
icagaenieiit was to be done by the lessors, and th at such ovidenco was improperly rejected, for
,^hit it WIS admissible both under tho ei(nit:ible
plea and the plea of leave and license. Soluble,
tijat the e(piit;ible plo:i showed a good defeneo ;
uu<l th:it at all events, the pliintitl' li:iving t:ikeu
issue upon it, the defendant was entitled to hivo
the issue tried. Waller v. Dexter, 34 Q. B. 4'2G.
Bii;ri'\va.s one :igreeineiit only, founded on one
tdnsiikTatimi, lint twodistiiat independent agreo-
biiit.*. The alleged |i:irol agreeiiu^nt, too, was
Be cmioi-niiiig an interest in himl, and was re-
kireil, theretiire, to be in writing under the
|tatutc of Fraiuls.- '22 C'liy. 2s ot yet reported.
Cnuirttrl.'i iij .<((/('.]— IMaintiir wrote to defen-
liiits, priipusiiig to sell them a vessel for a cer-
A vendor executed an agreement to convey
certain premises and receive b;ick a niortg:ige for
lain sum, the prnportion of premium on the i p;irt of the price p.iyable by instalments, but
piraiiie tlieii eti'ected, during the time the ' omitted to s:iy th;it the mortgage should be p:iy-
Wicy h:ul yet to run, to be paid by the pur- ahlo witli interest. In a suit brought to enforce
jhaser in cash. The proposition was accepted | apecitic performance of the agreement, and to
letlully, ami a rei'ular assignment of the vessel i compel the vendor to accept a mortgage without
Kcciiteil tiulefi'iiilant, in which no mention of i interest, iiarol evideneo was admitted to shew
Tit insurance was made : — Held, tliat tho plaintitr 1 that the real understanding was thiit the interest
bi^lit nevertheless recover the premium from de- alionld be payable. Outild v. Hamiltun, it Uhy.
" 15)2.
A woman sold her re.al estate, her husband
joininy in the convoyauee, and receiving to his
pilants. Masunw Hriind-illetal., 15 Q. B. 300.
I The iilaiiitiff agreed verb.ally to sell timber to
jeicnJint, tu he got out by him upon certain
f
•■f
1 ,
j I
-f^Wmimmm
l:W
EVIDENCE.
(iwii ii.s • the ]imv'li isf iiKiiicy ; in I'lin.siik'ratinn
of wliicli Ik' ;i>,'nM'il tn settle (in his wile oei'taiii
other |pi(iiieity wlii ii lie held lunler lease with
till" rii,'ht lit' jmreliHse. luul the li:iso W.ls iieeonl-
ili;;ly iissieiied tn a trustee tor the use of the
wile, the husliiuil .it the same time pnimisiii;,' t(i
Jiay till! amount a^'reed to he paid lor the pur-
])ose ot' olitiiuiML; the eonveyanee of the tee. 'The
liusli.iiid h.i\ inn died and his estate heiuj,' in the
course of administr itiou iu this court, and liis
widow having lirouLcht a idaini into the master's
otiice for the amount uciess.iry to )iroeuri! tlu'
fee :- Held, that the master had |iroiieily re
ceived ]iarol evidene • to estahlish such claim of
of the widow. I!l's^ v. Mii.-um, <) Chy. ."ifi.S.
O/livr ('<iM ■<.] jiefcndaiit ohtaincd an advance
from iilaintill's on wheat which he hail shi[p|).Ml
from Oakville to Oswego, consigned to thcni, to
the eaie of ( '. & I!. 'I'lie iilaintill's went to sell
the wheat for defendant, and jiay him the iiro-
cced.s, deducting the advance and charges, &C.
Tlu' wheat having liecu lost on the (lassage : - \
Held, that defendant was iiound to ri'fund the
sum advanced, as the m heat still continuei! his
property. I >efcndant at the trial desired to prove
that when tiu' advantte was made the plaintill's
went s]iiikcn to almut insuring the wheat, and
replied th.it they were their own insurers, and
took the risk of wheat shijiped on their account :
— Held, that such evidence was rightly rejected ; !
and that if admitted it would not have atl'ccted
defendant's lialiilitv. (lundi rluim it «l. v. Mur-
Uttl, 14 (i. 15. '2-2S. '
I)efeiidants, two directors of the Canada I'ow'
der('omi)any, placed in the hands of ('., their
seeri'tary, their promissory note for .'*S0()(), made
in Novemher, KS.")S, pay.alilc to the plaintill's on
demaiiil, which ( '. deiiosited with the pi lintifl's,
having a receipt written under it ,ind signed tiy
their agent, which exiiressed that the note w.is
to lie held liy the pl.untitis as coll.iteral security
fur any uiiretired paper they might at any time
hold of till' company. In an action on this note
the plaintill's' agent swore that he took it ujioii
the understanding expressed in the receipt, which
was in C.'s h.indwriting, and lie lielievcd was
signed at the same time ; and that he made the
arrangement wholly with ('., never having any
communication with tliedel'eiidaiits reg;irdiiig it.
Defendants had pleaded as an ei|iiitalile defence,
and desired to prove, that the note was given in
conseijuciiee of a doiilit as to the power of the
I'owder Company to heconie parties to a note,
and as security only against the want of such
iiower, and until it should ho conferred upon
them by the legislature, which was done in May,
1S,")'.I, without loss in the meantime to the plain-
tirt's : Held, that such evidence was rightly
rejected, for that the defendants having entrusted
C with their mite were hound liy his agreement,
on which the plaiiitifl's had advanced their money,
and which could not he varied by jiarol testi-
mony. T/ic CoinmiTchil Hank of Cauada v. Mcr-
ritt cl <il. 21 t^. H. 3r)8.
Upon an indictment for stealing money, the
proi)erty of certain persons, (composing tlie tirni
of the American Kxpress Company) it appeared
in evidence that the agent of the exjiresa eoni-
pany in St. M. delivered two parcels, containing
S888.'2l*, which had been sent by one K., ad-
dressed to K. & S., at St. M., to the prisoner to
deliver, and tliat ho appropriated them to his
own US'. On t'Ue trial in the Coiiutv Ci.uit ti
couiisid for tlic crown asked the .'i"eiit ni ti'
eoiniiany when their (the ciimp:uiy'sl liil,;!;,'!
ceased, which was ob ceted to bv t ii' uri „ ■
counsel. I poll aiipcal to tins enint: Ijin
that the empliry .aimed at w.is luati'riiil (,, ji '
I. ..1 .... 1 .1 1 ' 'I'.'W
how far the coni(>any h ul uiidert d;eii to ilij'i ." j
and therefore whitn their duty , is euTii'r'si.|.,yj'
but that the iplestion ju' put "'.is iilij(.,.|;i,,||.||i '
'2. That it was a (lucstion for the iiirv \vh,'tl . I
the contract of the company w.is tu ildivcr i I
K. it S., and the jiroperty in the iii.iiiiv wustlur''
fore properly laid in the iinliitiiiiut ; ,'t. T|.,,j
if the undertaking was to deliver tin: niiiiievtoJ
K. it S., tile prisoner w.is tic ;ig,'iit ul ||u. ^„,A
paiiv for that iiurpo.se. J'l'/iiin v. l/n,.,, 'ni
C. 1'. 484. ' • .'Ul
I'ly an .agreement under seal b.'tweiii tlif |,l,,ii,.i
till' and l!., U., in consideration .;' ^>'U'ii ixMits'i pL
foot, agreed to deliver to pl.aiiitili' at tlmlirliil
harbour, U,(M)() cubic feet of g.ind flu, timl,'.?
to be of s]ieciried dimensions, and iiuihiii'liiiti
good .sound rock elm. 'I'he plahitilf to ilwwitl
from the bush and le.ive it on tiiu li.vnL ni \u\
river .Maitland, and to pay at certain \nn,\A
iiained. In trover for such tiiiilur, whiii, ti,j|
defendant clainicd under a piii'eliase fnuii j). .^J
Held, that the agreement cde.'ii'ly iliil imt utfS
vent the plaintill' from shewing tli it tiiu tiiiilifri
to be ■delivered belonged to him and imt i,,]) j
Litlk\. tvliij, "24 (^ H. 177.
i In a declaration for not eilitiiig a iiia^'aziin im
j accordance with agreement, the iilaintirt'alk'i
that, although defendant was alluweil liviiiiitiML
.agreement to absent himself until tin' '.'Jtlhij
.lanuary, 1<S()4, yet he did imt after tliat ihtJ
return to his duties ar. editor. Tu tliisiluii.n.bj
jileadeil that before any breaeli, liy a ]miiii>(
randuni under seal between him ami tln' iil;
tilt', it was agreed that del'ciidani slmulil ;.. t^j
Kuroiie to try and sell the nia^i/iiif, ami thai
during his absence the editorial ili'iiartiiiiiil
fdlould be lirovided for by the plaintill': tluti
was no where stipulated in such ,ij.'ivriiii'iif tliaj
' the defendant should return iiy tliu
.lanuary, or any other day : that lie Ma.s inwi^
sarily absent on such journey until Maiv
lowing, and on his return w.is reaily tinvsiiiiij
his duties, but before his services wiii; iii|iiirsJ
the phiintitr discontinued the inililicatinii ;
Held, on demurrer, a b.id plea, fur it wawi
averred that the agreement |ilcaik'il oiiutmitl
I the whole contract as to the ile.'i'nilint'.salisii.-e
: and tliero might have been a cullati'ial iiuknid
dent .agreement that he should ivtiinilivaspn'^
; lied day. Elmovf v. Iliwl, '.'l Q. IS. I.'i'i;,
i The declaration charged dL'feiiilant.i, in lb)
I first count, on a contract to carry ivrtaia woo
I from (Jobourg to Boston within a rfi.viwbi
I time, subject to certain coiiditiuns fiularscil
I a receipt given by defendants animigst ntliel
[that defendants should not he iv.«ii»iisilile loi
d.aniagea occasioned by delays I'luni stnrnis, a(J
cidents, or unavoidable causes ami allo^iijia
a breacli the neglect to carry. In tlio stonn
count the contract was st.iteil t" lie to cirrt
within a reasonable time, ami su that the W
should be imported into the I'liitcil States M
fore the 17th of March, when the Heeiiinwi
Treaty would expire. Hrcacli, that ilefemls
did not so carry, by which the iilaintill's »ii
disabled from importing the woul intu tlie.'^t,it«|
unless upon payment of duties. As to the lin
V%rJ
EVIDENX'E.
1378
■ slmI hv'twt'Lil tile lililli-]
r;itii)ii i! S''Vi'iu'i/iits]iir|
to iiliiiutilV at ( 1(1.1. ricii]
jt of jjouil flm tiiiilKT,
isiims, ;ui.l iiiil'lmi.;lml|
'I'liu iilaiiititV t.i .liM« iti
I it (111 till! li;uil .it tli«l
p;iy iVt ui'Vtain i«rii«lj
such tiiiilicr, wlii.li t'lisl
1- ;i jmrcliasL' fnnu 11. ;-]
cut oU'ai-ly ili'l iiiit \<k-
slicwiii,i; that tlio tiiiiLcr)
uil to liiiM ami nut t..HJ
.. 177.
iKit L'tlitiiii; a iii;\j;:i/iiif in
ilR'llt, till' lil;uiititl';illi';;ft|
lilt was allowod liyimitiu
hiinsclf until tlk' 'iit
. dill not at'tiT tliiit lid
(."ilitor. Til tliisilotVii.lini
iiiiy lin'iu'li, l)y a mtin.).
tw'oi'ii liiin anil tlu' iilamj
t (U'ffiKlani slmuM .mM
■11 till' iiia^^iziiif, iiinlty
10 oilitoiial lU'iKirtnivil
,!• liy till-' lilaiutilV: thai i)
il ill such aniwiiii'iit thai
return liY till' 'iltli
,lay : that he was iitits
journey until Miuvli
turn w'as reaily to ivsiiiit
lliis services were ii'i|iiir
iinu'il the luililii'ati'.ii :
liad plea, fur it wus no
eiiicut iileaili'il I'.nit.iilie^
to thoilel'ellil.iut'saliSilK^
ll.ceu a eolhUi'ial m<\M
Ic sliiiuhl return hyusitt'^
|.,iv,.eil (lefoiuiaiits, in tllj
'aJt to carry I'l'Vtain iiiJ
,toii within a wmr^
1,1 coinlitiiins t'lulorsiil
[ciiilaiits-aiiii'iigst"™"
1,1 not he re?lieiwiili.'l«
.V ilolays t'nmi steriii;. »
I'u causes anil iillfJ".-
to carry. '"""^
i;is stateil til hi' t" .Mf
(inic, anil sii that th.-»;'
lo the rnitoil ^t.it.' I
Ich, when the Krtil'i';*,
Hrcacli,thatileti"'ta«
tvhieli the i'i^''»;;"*j"
_^tliowiioliiit'^,"";''fj
b1 duties. As
ai.l, tli;it
;oimIs to tlu'lll
,„niuo i • ii«uli'^t,aMliali|iiali-
ti-itiiiiiiit til' ciHitnict dcclari'ii on, wliieli tlicru- ,
( Iff was nut jiiiived as iilli';;cil. As to tlic sucoinl
ciiwit. the siliic i-ccci|it .-ilililieil, wliieli named
|.iy I,,,, earriai^c into tlic riiiti'd .States, luit
tluTi' was vcrlial cvidiiu'c ol iin .•ijiiiciiiciit to
i„|.,vji-,llpythc 17>ii .March ; Held, tliat tlioii;,'h
.i.;_ ...itii iniLdit thus 1)1' adili'd to (
I tiiiv were iireparcd to deliver the
f„rfllithertraiisi.ort : Held,
itiadnt'-i"'! *. ' " **'■".■ ...■■. • ■'. , — . -- . ■ . -.-..
iiii.iilivisicin of real estate, a written ;ii,'i'ee-
lieiit was sij,'iicd jirovidiiiL; for the iiayiiieiit of
JllOOtol*. I'., one of the iiarties interested, to
makf his ^liare eqiial to the otliers : Meld, that
kriileiK't' was in.idiiiissilile of u coiitelii|ioi-aiieoiis
herluliigl'eeineut that the aniount agreed to lie
taiilwas-SKSOO, partof thedillereneedi'iieiuliny on
llCiintiligency. I'lin-nU \. I'Ii'itUI, 1,'{ ( 'hy, 47li.
ilthn- Cdtr.t.
Inaiiactiim for services rendered to a vessel ;
i-Hilil, that oral evidence of ownersliiji of a
iessdwas ailinissilile, amlthat it was not neees-
kn- til iiriiiluec the eertilicate of registration ;
ioti'i^iiiniiii,' tliiit in actions by or against owncr.s
y a tfjistereil vessel as owners the ownership
mst 111' proved hy eertilicate, yet the mere
Wrsliip may not create a lialiility, iind defeii-
lantsmay he lialile apart from it under a eon-
Kt iiiiuie hy their agent, as in this case liy tlie
llirscr. Semlile, tlitit the olijection «as not
Kiitu the ilefeiiilants after their proof, without
xiiliii'tiiiii of the eertilicate, tliat \V. H. had
asi'il til he mviicr. Lnhi' Siijxrinr Xnvhiitt'iDii
k. V. /M/v <Nt/., 34 Q. B. '-'Ol.
hVlii'iethe purchase was made liy a jiersoii in
ii iiwii iiailie, I. lit in reality for the lielietit of
lotliiT, pariil eviileiicc of the agency \va.s held
jhiissihlf, ami the purchaser who entered into
lei'uiiti'ait in his own name, and who was a de-
plaut, was hehl a good witness on hehalf of the
aiiititi against his co-purchaser, the other de-
iiilant. Suiiild'sun v. liiirilctf, (in itp/iciil) 18
ly.417.
iPan.l eviileiico was liehl admissible tn identify
^"rtiiage as the instrument enclosed in a letter
jtMiuiiiiig it. ||'<„-</ V. nu!i»ii, I'J Chy. -23!).
XV. Pkoof ok HA\mvKiTr\(i.
Bfc'''. L. P. A. »'. ,J1,1, 3J ,t' JJ Vh-t. c. JO, K.
87
.\ docniiiieiit exeeuteil liy an agent in the name
of his principal, the siiliscriliiiig witnesses to
which are dead or out of the [irovince, can lie
|iroved liy proving the handw riting, i. e., liy the
sjinie evidi'iiie \\ hieli would lie siillieielit to piiive
its execution hy the principal. I)ir(.:-<fiii v. ./iirrii,
.") ( >. S. (i!l4.
.Mthoiigh one of two witnesses to an agri'e-
nieiit m.'iy deny his signature, and a [leison well
aei|iiainti'il with the h.'iiidwriting ol the other
m;iy refuse to say tli.it the signatiir' is geiiuim.',
it may still lie left to the jury to say, under the
circiiinst'inces of the case, wliethi'r the .igrceinent
h.is not in f.u.'t been signeil by the [larties. /lur-
II' r V. Ami^lriiiiii, (l <>. .s. 'A',\.
A ilefiudant's eouiisel, to get from a witness
an opinion as to the handwriting of the jd lintill's
receipt in full to the action, propo...,.d to juit into
"lis hands othei' jiapers purporting to have been
sigiieil by the plaintili', but in no way connected
with the cause: Held, that the li^ariied judge
rightly refused to iillow the witness to be e.xam-
iiied as to the other writings till he had lirst,
from his own recollection of the pi, linl ill's liaiid-
writimr, given an opinion u]ioii the siLrnature of
the reeeilit. dliixmi v. Wnlhn; , \ {^ \\. •_'!.">.
Whin collater.il issues ari--e out of I'omparison
of liiindwriting, and evideiiei' in relation to them
liecoincs admissible at a stage of the cause « hen
it would othei'w ise be excluded, such eviilence
should be treated as ap|ilicalile to the ease gen-
erally, when it iiroperly applies to it. /'(ii/nl
< 'itiiniliiiii lilt III: V. liriitrii it nt. 'Si {). \',. 41.
I'laintiir sued iis endorsee m' a note. A witness
for defence said he thought the signature of the
eiidorsei' not genuine. (In cross examination he
w.is asked whether two signatures on a (lajier
shewn to him were the endorser's, and he s.iid he
thought not. In rejily the plaintili' proved that
they were, defendant objecting to such ]iroof as
being in support of the plaintill's original ca.se.
It v\as received at the tri.il for the purpose of
inipcaching the witness, but withlield from the
jury as evidence to sustain the plaintill's ease :
Held, that being admissible for one purpose, it
was eviilence giMierally in the cause, and should
have been left to the jury. Jl>.
Action upon a note. I'lea, inui fecit. The
plaintili' put in a bond admitted to have lieeu
signeil by defendant, and called no witnesses,
contending that the jury might eoinpare the twi)
writings, and tiiid their verdict thereon. ( !alt,
.1., at the trial held that this could not be done,
and nonsuited the ]ilaintill'. Per Morrison. ,L,
the nonsuit was right. I'er Wilson, J., it was
wrong. Kill!/ V. Kiii;/, ."lO Q. U. )Ht.
Where, ill an action ag.iinst the maker of a jiro-
niissory note, the plaintili' produced several wit-
nesses who swore to the defendant's signature,
which two of them said he had admitted, but
the jury found for the
defendant on his own
evidence alone, the court granted a new trial,
I witli costs to abide the event. ('iiiunHiiii Hunk
of (XiniiKiri' V. MrMi/liiti, 31 l,>. B. ")9t).
Per Wilson, J., the evidence stated in this
case was insuliieient to shew that defendant was
the maker of the note sued on, alleged to have
been signed by him as a marksman, and the
I plaintili' should have l)een nonsuited. Hand v.
I Aijnew, 32 Q. B. 559.
,'■ IMIfi
1379
EVIDENOK.
13«0
For till' |iui'ii(isu of jiriiviiij,' tlu' cxiriifidn of
ilt'fils, !i uitlirHt, \\li() ^^•a^^ imt tlif witiu'ss tii
till' ill'fils, Wl'llt to tilt' JUTSdllM liy "hiilll tlu'
ilci'ds ]nir]Hirti'(l to Imvi' lu'i'ii cxt'ciitcil, who
.'iiliiiitliil tn liliii tliiit till' siL;iiatiiri's wi'iT tluiis.
and wliii uiiito tlirir iiuiiics in tlu' \ii'tsi lu'i' nf
tlif \vitni'^s, wliii liaii ni> [iri'ximis a(i|\iaintanit'
Avitli tlnin (11' witli tlu'ir liamlw ritini; : IliM,
tliat fviiU'ni'i- (if tlii'nr adinisNiuns ami of tin' lie-
lii'f of tiu' witness, from the know ledye of the
handw litini; thus ae'iuired, that the si^natnt'es
to the deuils wele ^'en'.iiiu', was good e\ idi'nee
to go to a jury; an<l, in the alisenee of any
eoiitraiUetoiy evidenei', sullieient to wairant a
linding that tlu' deeds liad lieeu dniy exeeuted
npon tin' I'lspeetive clays npon « liieh they Jiui'-
]iorted to have lieen exeenti'd. '/'//(k/z/wo// v.
n< 1111(11, 2'2i\ W '.WKi.
IVr dwyniu', .1., a deed may lie proved liy
eonijiarison of the handwritim,' of the signature
vith the .-igiiature of another deed wliieh is
prodneed and received in evidence as an ancient
doennient. Init the iiandwriting of which is not
otherwise ju'oved. //i.
In an aetii'U on a [ironiissory note against the
maker, the defemlant swore that the signature
was not his. Imt an exjiert, eomjiaring it \\ ith
iidmitteil signatures, said that it was written hy
the sanm person. The jury having found for
the plaintili' : - llehl, on ajipeal from tiie County
t'ourt, no ground for a new tri.d that the jury
had not heen directed that the evidence of ex-
perts was entitled to little weight when contra-
dieteU hy direct testiumnj' ; and the learned
jmlge hehpw having lieen satistied with the ver-
dict, this court would not interfere. Luce v.
Co//"', -'^'i 'i'- '^- "^or).
agreement hy their allidavit of dcht ; an 1 tl
as the writing was the hest evidence, it .,||, 'i'
have licen pro<lueed. (lilln rt il nl, v, SI,
ffA
llnll. J
,\VI. I'lIooK ItV SrilSCHIlilMi WlTNKSS.
[.SVc C. /,. /'. vl. ,s'. .'/;.', J:; ,1- ;1S Virt. c. ,'(/, .s'.
(JiJ, 1).]
Where tlie suhseribiiig witness to a homl is
out of the country, and his handwriting cannot
be ])roved, evidence of the handwriting of the
obligor is sutliuient. Briiiiflt v. Mcl)oind<l, K.
T. 3 \iet.
Every rea.sonahle eminiry must lie m.ade for
the subscribing witness in the nnist likely phiee.
TiihliH v. Bulhi,, 'A (l B. 10.
I'or .lones, .)., all the witnesses nmst be ae-
C(mnte(l f(n', though the plaintili' is one of them,
and his handwriting jiroved. Din- d, McDuiiald
V. Tiriijij <l III., o t,». H. ItiT.
,See, also, XIII. 3 (a) p. l.S')").
S
XVII. Pkook i)v .Secontury Evidence.
1. ]V/it'n Docami'iitii iiiunt be J'roiliiced.
In assumpsit for not delivering goods after the
iilaintirt' had proveil a verbal agreement, defen-
clant gave in evidence a copy of the athdavit of
debt made in the cause, and of an agreement in
writing incorporated therein, sworn to by one of
the plaiutitFs, and then called upon the plaintift's
to produce the original ai'reemcnt, not having
served any notice tr) produce :— Held, that no
notice to produce wius necessary, the plaiutiiTs
having shewn themselves iu yossessiou of the
NN'lure a sealed instnnnent was |ilc:.ili.il ml,
a jirolVrt and jiroduecd at the tri;d, ami siilij
i|Uently in term, but was afterwards riislai,i,,.,„i
when secondary evidence was gone iito, ili.L!
dant objected to lliiif seeondary ev dciii'i., Imi
not to '///// secomlary evidence, the cu n'tri'iiij,;
to allow a noTisuit to be entered firtlio
liroduction of the instrument, /o./- ;«,/ v
I ( ». s. -2:,:.
In assumpsit forwurUand labour, \^ln.|■^.(|| .
is a written agreement lixing tlic piia', Muhl
agreement nnist be produced on tlic trial nf tLl
cause, unless it has hecn resciiukd. H'dft,,,. '
M„/,i.s, -) (). S. 111).
.Assumjisit for work and labour. Tlic iilaintjif
witness swore that the work \v;is ilmic ii|ii,|,,|
written agri'i'liieiit, which he hid in cmirt, l,,.,!
refused to produce, lie had n<it been siiliiKHiJ
ed : -Held, that he was as much IhhiiuI t,M,nij
duce the writing as if in attcinLuirc iiii,|,.fjj
snbpiena duces tecum. Hut, scmlilc. thatintJ
witness had been i'ei|uired by the cmirt tiiiirn.]
duce the agreement, ami had still rifii.<L.,l, tlnjl
would not have been sullieient to warnint ttjj
receiition of seeondarv evidence, /'n/'/i vf i|/|
V. (Intham, <» (f. B. 4:t>S.
Where a bond is plcadi'd w ith a iiriilurt, tlijl
admission of its execution, under a jiiili;t''sMiiii.l
mons for that purjiose, does not ilis|nii.<,. wji],
the necessity for its production at tri.il, Imt mil
with the necessity of jiroof of execution. /...J
V. Loihij, ") O. S." 482.
In ejectment against a iicrsoii let int(ii«stjj
sion of land, a witness stated he liacl seeiiawnJ
ten agreement about the laud liutwi'ni thJ
parties, but it was not shewn in wiinse instolj
I it was or what its terms were, aiul it was iirnvj
the defendant had written a letter tn tlio I'Liin
titl"s agent, stating that he was to i,'iveuiiiii(
I |iremises on a certain day ; Held, that tlii
plaintitl" need not i>roduce the agroeiiant, ajil
was not sntKeiently shewn to he in his oiistinlJ
: or power. /A/c d. Mifrlnllv. J/fA-w/, tin. s.5j|
I Where in ejectment the pliiiitilf s ciuiiisdij
: Opening stated it as a iiucstinn uf leyitiiiucj
, and that the defendant claimed under a nil
' and the defence did not produce tlie will, jsi
' the statement had rendered it iiuiivfi'ssarv;
Held, that it ought to have been ]iriKliKeil. /»(j
I d. Hniihnj V. Bnukcij, •_> (.). I!. ;{(!l.
Where goods have lieen transferred tn the ve|
flee by writing, the vendor rcniaiuiiij; in |iiij,id
sion, the vendee suing in trespa.ss fur takiiigtl
! goods, must produce the writing to [inivch
' title. Vuldu-dl v. Um-ii il a I., 8 (^1. li. 'iTi. S«j
I also, liridt v. Lve, 7 C. 1'. 2S0.
I One of plaintitT's witnes.ses pnived that k\i
: (laut took possessimi of the laud uinkraverl)j
I agreement with the plaintili' to jiuri'liiiso it fro
I him ; and on cross-exaiuinatidu, \k swurf thl
'■ several days afterwards he heard the iilaiii|
■ saj' that there was some writing Iiotwrtiili
; and the defendant : -Held, nut snlHi.'ii.'ntev' ';iij
I of a written agreement to render its imnliii'til
1 by tile plaintin' necessary. y'lii/i/ii/V v. /V', I
!Q. B. (ill.
it of 'U'lit ; ;iii\ ii,,|
; ovidi'iii'c, it A\'.\\\i
,,■1 il III. V. Sl,.,.,-j
lit Wiis lili;.ili.'.l witl,
t till' tl-i;il, :iliil *\\\,i,.
tiTwarils 1 lisluiil, ;\ii,l !
iV!lH ;^'iiiii' iit.i, iltJti,.
'( Hillary I'v iU'Iut, 1,^
L'lii'i', thf I'll irt rcl'iiM
ciitiTcil 1' ir tlu' Hull.
nit. /.'•"■•'"■'v. Wr,
iiiil laliiuu', \\ hi'i'o llitrH
lixin^i; tin' Iivili;, nM
ll'l'.l nil till' trilll (li tilt]
ri'si'iiiiliil. H'lil/'iiv.
(1 laluiur. 'I'lii' \il;iiiititl I
\vink was iliiiic uimul
■h Uf l\:i'l in I'nurt, laj
■ hail nut lii'in suliiKim.f
as iimrli IhiuiiiI tinii«.l
in atti'iulaiic-i' uivkt il
I'.ut, Sl'luMc, tllllt iitli«|
ii-oil liy till' I'lHii't to]ip.j
il hail still ii'Uisnl, t'
sullii-'ii'iit til warviiiit!
• (.'viiU'iu'i'. /''(ii'/ii/il III.]
S.
.eiuleil witli a I'vulirt, tfed
tiun, vuuli'V a iuilj;o's sum.]
., (Ini'S imt ilis)H'll>i' witi
•iiihu'tiiHiat trial, Imti.nljij
|iroii{ of oxci'Utiiiii.
t a i»-'i'siiii li't into i«isit*|
statcil lu'liail sii'u ;i wnt'l
It tlu' laii'l littwrtii till
it slifwu in wliost' nistiull
us wi'i'i'. aiiilitwaqirid
itti'ii a li'tti'l' tn tk I'liinj
hat 111' was to i;ivo iiv tki
„ .lay •• Hi'lil, tint M
|,i,lui.'i.''tlu' ayi-ei'iiicnt. .wi(
lifwu to lio ill lii* in*'**']
{■lolly. .V.'/.-W.f.ti.S.rx.^
tliu \iliiiititl"s ciimisil'
a (HK'stion lit li'gitiiii*
luit I'laiuii'l uii'Kr ;i »"il
liiiit proilui'i' till' will, IS
I'luloriMl it imiK'i'isary-
have ln'i'iivi'"'"^'^^'''
o (). 11. ;ii'.i.
liefutniiislV'n'i'iltiillK'Wl
loiiilor ri'iiKUiimt; m l-'ssi
in ti'i's\iass for takuiiltl
the wntin.U to vrnve
\.,i,l„l.,i>(i. l!.:<-''^<
'. 1'. -Jso.
lituessosiirovi'iltliatileii
V,f tholaii'liiii'l^T •'.'■"'
llaiiitilVtoimi'.'lwsi'itir
kamiuatioii, 111' f«"7''
Lis hi' lu-aril till' M
l.iue writiiij; K'twicn
yieM,iiot^iilli^''^'"^^'V-
|,t toriMiiU'ritsF-'-W
Liry. :/'":/;/'"■' '■ '"'"'
m
EVIDENCE.
1.182
Viu'xoi'utor siu'il for luoiu'V ivoi'ivi'il fur liis
(jtitiir on a note luiyalilc to him. Tlif inakor
,» m tli.it hi' liail ii-viil iloti'Milant, wlni liaiiiloil
jjijidn, iioti', which lu' still hail, thini;,'h with tho
iiaiiii' torn
nil': Ht'iii, not ni'ii'ssary to |iriiiliico
I'llH Mil II V. /■';
15. ,-)7n.
ti>r
iiari'
tlii'iliiti'. ' '"' '""" y- I III nil n , 11 (,1.
ri»m ftii action aj^ainat a shurill' for a falso ro- 1
tiiniiiiiiiii a li. fa. ^'ooils, lii« ilcfchfi' was :i ch.it-
tiluiiirtu'.Ui' '"I l''"'t "' t'"^' {-'ooils, anil a ilistross
ri'iit to cover thu rcniaimlcr : llcM, tli.'it
' I'viiU'iicc was ailniissililc to juovc a ilcniisc
iivtlii'l.'ii'"'"'''' f*!- !''• '" sustain a ilistrcss, al-
,j iij,), ■iiiicMiiiranilinn luul liccn iliawii ii|i as to
tlittWiiis of the lease, Imt sij^neil only liy tlii'
tenant. Villi nfiiif v. Siiii//i, '.) C. V. oil.
Wlit'ii' to an action on a note ajjainst the
niaki'rs, ilcfcinlaiits ideaileil franil : Hehl, that
till' niiti iiiii'^t '"■ I'l'i'veil, ami that, as ilefeii-
ilnit<liaii given no notice to iirmlnce, ami it was
ii.it jlu'ivii tiiat the iplaintill's nr their attorney
li;ul till note in court, the ilefenee coulil not lie
.Mill' into, limik II/ Moiilnul w Sm/ili r il nl., 18
(i.jl.HI'J.
liu'icitnu'nt, the i>laintiir elainieil nmler tlm
liriiiit I!., wliiiilieil in IS'_'(!, leaving a will, which
mii.'ilu'Wii to lie in ilefemlant's iiossessioii, who
,1, hiuil to |>riiiliiee it on notice : HeM, that
li •.mlaiit was not conipellalile to jiroiluee the
Ttill. Iliiitliiillv. Slii/iliiii-il, 'Jr) g. 15. XM).
Til ail action on a homl, tiie plea was the ilis-
(We of tbc ilefcmlant as snrety liy time given
[■tulheliriiicilial ilehtor ;--lIelil, that it was neees-
■V I'lir ilefcnilant to prove the lioml, in order
to iilontily it with the arrangement meiitioneil
intWpli'.'i. Kni-y. liiiiil/nii.'l'i i). H. '2SJ:.
iii.lamiary, 1S7-, the plaintilV, a nuisieal in-
■Itninii'Ut maker, at Toronto, rented a jiiano to
iMi'.l, atWooilstock, at ."?<> per month, with the
jjlit of imi'cliase, the rent to go towards pay-
itiitof imicliase money, which was fixed S-loO ;
several months afterwards, wheii.l. had paid
iroe iiiiiiitlis' rent, a written contract was
pii'il liy .1. The defendant, J.'s landlord,
ring caused the piano to he distrained for
int ill aneiir, it was sold by the hailiti' and the
LimtilT Immglit trover. Semlde, that the plain-
was not liouml to produce the contract, for
title to the piano, which he had not acijuired
the eoiitract, was alone in issue ; and, more-
er, tlie [ilaintitrs original bailment to. I. being
(yverlial li.ai'gain, it was for defendant to shew
it a ilitl'ereiit disposition was afterwanls made.
/7i<i)ii,<v. (Iny, 23 C P. 'Ail.
The ilefemliiiits objeoteil to prodnce certain
'unieuts, (111 the ground that tliey were in the
lessioii of a third party, to whom t)ie defeii-
its hail assigned all their estate for tho benelit
their i reilitors. The assignee hail realized the
,te .iiiil ilistrihuted the proceeds aunmgst the
ilitiirs ;— Held, no excuse for the non-pro-
ictiiui, aiiil a better athdavit was ordered.
I'hVi Aiiurim lii.^iirutice (Jo. v. iyUk'iii.^itii, (i
R. 2G8.-Chy. Chamb.— Holmested, Jie/eree.
2. Proiif that Documents exinted.
Petiire secondary evidence can be let in, proof
list lie aililuceil that such deed once existed,
P that it has been destroyed or lost, ami
pgeiit search made therefor. Anskii v. Breo
■ I'U'. 1'. 371.
Meld, tliat npon the evidence in this case
there was no snllieicnt proof of the exccutinn of
the lease under which ileleiolaiits I'l.iimeil tn let
in secondary evidence of it. hnk^ini \. Mi-I'ur-
hliir it III, 'h i). 15. XM.
3. I^rniif iif l.itix mill Si II rill.
Where a promissory note had been endorsed
to an attorney's elerk in the I'nnrsu of business,
ami mislaid : Held, that secnmlary evidence of
it riiiilil mit be given, without calling the clerk,
altliongh the attorney was called and s«iirn to
his belief of its hiss. I ! mn r \. C/iir/ci I nl., .")().
.S. -.'OS.
.■\fter secondary evidence of a dui'umcnt h.is
been rci'eived, it is too late to cibject to the
sullicicncy of the search. />'« d. Mm-li in v.
Tiii-nlinll', r^i). 15. joi).
.■Vt the trial a witness stated that as agent for
idaintill' he gave di'feiiil.int certain parcels to
deliver, with a meiiioramiiim of cli.irges mi each
to ciillect, and that defendant owed a balance to
the plaintill', lor w hich this action was brought ;
that witness li.'ul entered in a memorandum
blink ;ill the parcels given to defeiulant, with
the charges against them, ami had credited
ilel'cndant with tiie amounts paid ; that he had
given thisboiik to plaintitl, and had since searched
among papers left by him with plaintitl"s agent
for it, but without success. The witness pro-
duced a statement iiiade from the memorandum
bcMik, and said he recollected the delivery of tho
parcel, his recollection not depending on the
l)o(ik, but that he eould not speak of the sums
except from the memorandum bmik ; Hehl, tliiit
the non-production of the meninrandnm book was
not sutliciently accounti d for to admit secondary
evidence of its contents. Stnrrl v. .llliii, 1 (.". 1".
:ioo.
The loss of a bond being alleged and not
traversed, evidence may be given of its contents
without proving the loss. I'lnnniircial linnk uf
till' Midlniid Dliti-ii-t V. Miiirliiad, 4 V. P. 4.34. '
The plaintitl', claiming under a bill of sale
which had been lo.st, otlcrcd evidence to shew
that he (the plaintill'), and his wife (who were
then inadmissible as witnesses), had made search
in the presence of witnesses, who did not make
any search themselves, and h.'id declared they
eould not tind it; -Held, insutHcient, as being
merely his owii declaration and that of his wife,
which were not evidence. Jiiiitt v. Ln , 7 C. P. "280.
' lu ejectment it was proved that the deed in
(|uestiou was about 1824 in the possession of
one \V., who had bought the property, but who
stated that he was an alien and th i. :'. re could
not hold it, and that before he ci'iivjv.jd to G.
he had mislaid this deed, but thai li' found lie
I wimld deliver it to C C., who conveyed to the
I plaintiiT, proved that he had never had this
deed ; there was no ground for surmising that it
hiid ever come to the plaintitt" ; and it had not
I been seen for thirty years. No enijuiry after
I W. or his papers WiW proved, but no objection
I oil this ground was taken at the trial. Secon-
dary evidence of the deed having been admitted,
the court after verdict refused to interfere,
Tifanii V. McCiunhn; 13 Q. B. l,")!).
The degree of diligence reipiired in a search
must depend on the circumstances of each case,
ifi
.'il
138.1
?:VII)KNOK.
M
mill (il'ti'T 11 Iciiit! Iiipsi' (if tiiiin till' Miiiiic aiiiiiiiiif
(it HCllt'l'll llll;.^llt lint til III' l'l'l|llil'l'll. III.
Ilt'iil, tliiit the Mt'cdiiiliiry i^viili'iii'iMif tlm hoiii'iIi
f(ir anil ciiiitciitn iif ii lust liiuul, ax ^{ivcti mi the
tl'ial III' this laiiMc, wan I'liaily ailiiiisHilili' ami
HUlluifiit. Arihiltl \-. Itiilln- <iul., I.'>(,>. I». •.'.Vi.
(I'l'taiii h'ttirn put in at the tlist trial in the
( iiiiiity ( 'iiiirt Mfif tilril in tin < 'unit ul ( '. I*, mi
ajipral Ironi tlii' iht'iximi, ami at the Mci'iiml trial
a uiliit'SM |ir(ivi'il that he lia<l a|i|ili('il tn the
ell rk 111 till' I'diirt, whn scanhcil in lii.s iillici',
ami tiihl tin; witni'HX that In^ hail aUii cmiiiircil
(it till' jml^'i', lint that the |ia|ii'i'H cmilil nut
lie tmiml : llihl. sniliriiiit to lit ill Micnmhiry
cviili'iicu. .Sii/ur\. Mcl.iiiii, I.Hl.t. U. »'.il).
Kji'i'tincnt mi m shciiU'V ilcnl. Tu pnivi' a
ilccil ti'iiii the sill rill', tlir iiicinmial « as iiiit in, it
liavini,' liciii slii'w ;i liy M. (a ]iartin'r nt W. !•.,
tliL' Hiiiil \S . I>. liavin;; luniiiily lucii ii.irtni'i'
(if .1. I>., then uttnriicy I'lir till' iiliiiiitid'si, thai
tilt' ili'i'il hail ciiIKi inlii till' nihil' III' .1. |). (.1. |).
not lic'in^' lallrill, ami rmilil imt hr rmiml tlu'ic mi
(lili;;i.'iit si'arch liy 11. It liiiiij; nlijii'lril that tin'
till' |ilaiiitill 'm attmiii\ , In u Imsr liamls tlir Awv
ill s ih'i'il was trai'i'il, slimilil havr lii'cii ralli'il ;
llrlil, that iliii^^i'iil Kiarch liy Ii., wlm was
partiirr \Mtii W. I>., tlio tnrniir ['artiur nl .1. !>.,
Mith wlimii till' ilcril h III Ih'cii Ictl, the saiil IS.
liaviiig jini'ci'filcil .1. I». in the Imsim's.-*, aim hav-
ing aeeess tii all his paiieis, ami having i-een the
(Iceil in his nllii.'e lately, was jniU'cieiit se.ireh ti>
lulinit (.1 secmiilarN eviiii^nei; williniil ealling J.
I). X^sliUI V. A'*'.''., UC. 1'. lOlt.
In ejeetliient mi a sherill 's deed, seemidafv evi-
ileiiri' il' tile Ii. t'.l lands h.'nini; lieeii rejected :
Held, that every phu'e slimild have Keen Hearelied
where there was reasnnalile ^rduml t" siiiniost^
that die t'. fa. niiL;lit lie I'miiid, and that siiiiie of
the slieritt's jiapt is lia\ iiig lieeii left in theennrt
limise, se.ii'eh slimild have lieeu made aiiimi;^
them liefiire seem;ilary evideiieu was adinissilile ;
iiut jvtlidavits iLiving lieeli tiled that diligent
.seareli had sinee lieeii made in the emirt linlise,
a new trial was granted mi payment uf eusts.
Soii/iMV. DiiiKirnii, 14('. I', ."ilt)"
l>. wasaliseiit frmii the louiitry, and the jilaiii-
titl' priived ;v seaivh with .several of his re'l.itives
for a deed frmii 1'. tn liiiii, Iiiit it was not
^liewil that l>. had lived nr left the charge nf his
]iaiiers with any nf tluin. Sucnndary eviduneu
lieing then adiiiitted, snliji'ut t-. nliitutimi, hu
proved llie 'j.xi.steiue nf this deed, and the exe-
eiitinii liy 1'. nf a iminnrial nf it, whii ii tlio
deputy registi'ar prndiieed : Meld, tli.it tin'
search was not snttieieiit tn let in .sueniidary
eviduuee. Vnnrt v. liiihhi.t ni, '1\ (,>. IV 'l^i.
In tlu^ ease nf Inst deeds, it is always a ipies-
tinli for the l>resiiliiig judge whether siillicieiit
Bearch has lieeii in.idu tn justify the adniissimi nf
seeniidaiy evidence as tn their cmiti nts. In this
oiwo the witness, whn was the son if the late
agent nf miu nf the griHitnrs, stated that his
father h.ul pnsseisinu nf all the iiajierH nf the
graiitnr relating tn lands in l'pper( 'aiiada ; that
he had searched through his f.itlier's pa]ier.-' and
the jiapers of the grantor, all of wiiieh were
then in pos.sesslmi of himself and innther ; that
at the suggestion of the executors of the said
grantor, another pe'-soii had aearehed among
those of his papers deposited in. •\ certain hank,
aa well as elsewhere amongst his private p;ipers,
lint that he had not anplied tn the lniiM,,,. ,i
vi.iees of the grantor, llioiigli he hml niinli. ,.\ ..',
other ini|iiiry win re there was a piiili.ilnlni '■
Ins liliiliiig the deedn ill ijllehtimi ; iii.c {„„| I
searelieil aiming the papers nt the iillii'i' i.|.;||,r "
liieaiiKc lie was a lianknipt, and t||,. .'i.,.'
ainniigst w linse papers he had alreailv •..hi, |,,,i
w.is his assignee : Held, siillieii iittii,i,'|||iit»i.,.|,,|.
liars e\iilelii'e nf the deeds. l!ii^xill\ t',.,
i.-ii', I'. ;»:.-..
The plaintill in ejeetlnent iLiim, .j ii||,|, ,,
ninrtgage frmn ( '. to ((..executed m |s,",i; (
III ilig called priiveil hiseseciitimi of »ii, h iim,,,.
gage, and the nieinnrial of it si-md \.\ limm,,
prndllecd frnlll the registry oilier. ||,' 1, „| \[.
seen the l 'tga^e with (>.. the liinit;,';,;.,,., "i, i
IS.'iT. <>. in I'S."!'.! Iiecaiiie insni\eiit, iiiif iiia,|,. I
an as.^ignnieiit nf all his est 'i.- t,i |' Jl,, ,1,.
seniided tn the l'. S. slimtiv
MMi l„|
ll*l CV,T j
Inwi'il liy I'". It was not she , |.'
Ii.id the ninrtgage, thoiigli the land » as ii,HHii;ii„,
tn him ; and it aiipeared tli.il in a suit ii^jiimj I
him and (>., in ('haiuery, on li.half ni tlicmij. |
itnrs, cmiiniciieed many years alter tli,. ii.„jj_^|.
nieiit, and which resulted in th,. a|i|iniiitiiit'iit"„f|
the plaintill' as receivei. K. pindiieiil tlii'|i,,iKrjl
in the suit under an mder of the ( 'mirt, ,'iii,| thij j
mmtgage was not animig them. \ s,.avili via]
proved tn have lieeii made in the iiiasti I'.i iitlivt |
with the plaintill's sniicitnr in tlii'.i ,iiit, ,.,ii,l|
animig the receiver's jiaiieis, Imt imt with ii,,
w'.in was still living in Nlichi-.m, ii,,i' „jt|| |„jj
solicitor ill the suit : Held, that tlic |irH,i| nfl
j search was siilliciciit to let in the MroiiiLin'l
; evidence ; for under the cireuiiistaiu'i'snl tlii.iu4|
there was no prcsiimiilion that n. n.tiiini'il tlml
inmtgage or tnok it to the rniteil ,S|:ites witl
i him. UtiiiliiH V. Mil'liiiil, ,'{•_' t,i. II. |,mi.
I In ejeetlnent liy trustees nf , ^\ esl, yiiii Mitli.l
: odist cmigri'gation for the p' ij;i''iii'ii|iritv,f
it was proved that a searci i.'uli' t"r tjitl
deed from the patentee to ties at tlitl
]iars,inage house, its prii]ier iiii.. usual |ilareiif|
depnsit, and that an eni|iiiry had liecn m.nli'ulf
the minister whn olliciated there wlieii tln'i
: was supposed to have gone astray. .Nniic 'ifl
the ministers formerly ollici.itiiig tlieiv liaiUuifl
'. interest in the deed nr the possession ul it.
, it was nf nil use tn any one imciiiiiiiitiil uitl
the present enjnyment of the pnipirty : licit
; siillieieiit proof of the lii.ss to let in si'ouiilarj
' evidence. Tin- Tni^tn-.i ,./' tin Aiiilnii'ilh I'm
ijriijillioll iif /III' W'isli'llllil MilliiiiitM I'liilirli
i'auuiUi V. (Iri'trfi; '2'A ('. 1'. '>Xi.
In .laniiary, ISTli, the pliiintill', :\ iiiii.«ic,il i
stniiueiit maker at 'I'onnito, iviitcil a piaini
, one .1., at Woodstock, at ."^li |icr iiiniitli. \utlitlJ
'< right of jiurcliase, the rent tn gn t"\vanl.< ['ayl
nient nf purchase nimiey, wliicli was lixi'i
!?l."iO; and several inmitlis after .vanls, wlirii ,
had ]iaid three inmiths' rent, a written i'iiiitr,i<l
i was signed liy .1. The defend i ic, •'.'.< laiiillin
lia\'ilig caused the piano tn he iii>^i-aiiu'il liirri'il|
ill arrear, it was sold by the haililf t'nr .">e'i, tU
defendant being tlu' ]iurehasci', ami thi' ili'li'I
daiit afterwards allnwed .1. .-^IL'."! extra in si'ttl(
I ineiit with him. making .%'0(l in ,ill. In S.ptd
I her or Octolier following, the pl.iiiitilf's.-yi'iitl
I p.issing through Wnndsiock lie.-ini nf till'
■•mil telegrajiheil to the [ilaiiitilV tn soiul uiitj
! contract, which mi the same il;iy tlii' plainly
I mailed to him at Woodstnck, hut it mviiri.Kii
i him. Seareh was made at the pust-nllit't'
ll til tllr ll'ir* Mf i|,.
li lit' li;iil iiiiiili' tverv
viXH II \iriili:iliilil\ ,',(
U'Ktiiill i imr liiul ll,
III' llir iilli.T tJlMiibir,
it. mill till' iiUMu,
liiiil alrriiilv ■.iiiii ||,,i
llit'lrllttii.lillllltm'niu.
, /i','....'/ V, /',.,..,•,
rill I'tsiiiiii'il iiiiiliT a
xiiiili'il ill IVii'i. r.
■cut ion 111 ^iiili iiiiinrt
it xinlliil li\ lljlll M:n
y iillii'i', Hi' li.ul Iwt
(»,, till' iniirt^a;.'!!', m
t: illHiilvclit, illil liiaiV I
i.»t"''' to )•'. 111. all- 1
tly • I \Vii» t,.| ^
illl' . !''• tlinl CVtT 1
1 till- liiliil \v:i!i iWMjdi.i
tliiit ill ii ciiit ii^.iiint I
, nil lil-llllll' 111 till' iTfi-
VlilTH Ilttl'l' tllc II.N.l;-!!.
i ill till' ainiiinitinriiti.tl
1'". jiiiiiliii'cil till' nquMJ
•V III till' Ciuin, aii'ltliisl
;4 tlii'in. A ^.':iii.li wuj
K' ill till' iiiiistp r'sulhi'cl
U'itiii' ill tlii'.l >uit, iiikl
llHll, Imt lint witli IV,
Nlirlii^;aii, imr with hiil
lii'ia, tliat till' |iru»l ,.|j
,11 Irt ill till' sii'iiiiilm'r
I'iri'iiiiisliiiici'siil tlii'i'iuel
inn tliiit <•. i-i'taiiu'il tlwl
. till' I'liiti'il St:iti'S withl
„;/, :w »,». r.. wi.
1,1'i's 111" ; ^Vusloyaii Mttli-j
11' II
ii'.'l
tn
ipi'l' :ui
till' 1' V^' lir"l««Sl
null' fur tlnj
ti'i's ;it th
ilslllll \<W(n
I'liiry liail ln'i-u m.i'li''
I'll tlli'li' wllrll tlll'iltlj
mil' astray. N"i»'
iriatiii^; tl'ii'ii' hiiilaiif
I,' iinssi'ssiiiii 111 it, ;mij
I Illl' luu'iiiinii'ti'il «itl^
i| tlif iniiiifity : Illl'
loss til let ill si'iiiiiihir]
„/' till .ii/i/ii/i'i"' ''»il\
uiil Mi-llinili^i '''""■'■'' '
r. y.vA.
, lilaiiitilV, a nmsiiiil iiH
flllltll, IV'Utl'll il l'i'l'["'j
vt Sli pol- llliilltll, witlitll^
lit til i;ii tiiw:llils 1'''
i,.y, wliii'li was lixi'il
tiis af tor A-anls will"'
' ri'iit, A w vitti'ii ri'iitrai
,l.'s lurolli'i'
lU'ti'iiil I ll.
I to 111' .',i^*l•alm•l
1 1.T rea
till' liailiti I
rhivsi'i', ami th' 'l^i'^l
Ll .1. .-:l'.'."i I'Xtr.i ill '^^
'f'JOO 111 a
, tlio 1
11. liiSi'ptd
iitilf's iigtl'M
U lii'anl "f tiw
i.laiutilV to soiii
I uv I
■till.'
till' I'li
k, liiititiii'^^'''!'^''''™
at the 11'
,st-iilli<-''
l3Si'
til,' Imti'l « ll
KVIDKNCH
1:580
i|:Uir
mut-Kl
■ ic ill' Wi'iM NtiiyiiiK, . 'Will iilxii lit till' liiilH wrrc tlu-ii ull'i'ii'il un Hi'i'inuliiiy t>viilfiii'(i,
tiif'» |ilai'i' at 'rurniitii. A \vitiir»« I'l'inii tlii' Imt iTJii'ti'il mi tlu' jiiniiinl tlmt tiny uiii nut
lliic ntatt'il tliiit iiiilr.'<s iri;i?»tiri'il llii'y .slii'Wii tn lia\ f lii'i ll 1 1 Kintcri'il liy liny mii- inii-
111 not till it' any li'ttrr hail I'niiir fni' tlii' nri ti'il uitli tin isiiit. ll waM iil'ti'r\\.>rils |iinvril
lUiutill'i •"'
mil
1'
OlR'
I that li'lti'i'M alti
lii'iii^' aihi
rti-o'il lli;tt a jiartiti
hail
'M'liil'il in IHIS
91'llt. I«ii
llinlltlin atti-r liTiilit, tn till' ill. Ill lii'twi'i'll the IniU' Hiilis >>[ ll,, ti\ wllii'li tllr l.lllil
1 .^^.f iillii'i' at Ktt.iwa, lint « hat wais ilniirwilh in iiiii'.slinii wmt In I,, iiiiilir w liniii ili'tcmlaiit
tliiiii til
\V;lH lint hIii'WII
II
that
iliry I'Vii
I'litti'ili
I ; ami tin' iin iimrial nl tin' uill |iiir|^iiii
li'iH'f III" tilt' I'lintrai't wan inniiirly ml i ti'il tn In' cxriiiti'il li\ S., aiintln'i' nl tin' Iniir
1, Miiliiiiit IH'iKif lit u Hi^ai'i'h at tln< ilciiil > hihim, tm ii ilov incii : llrlil, lli.it tln> iiii'inniialM
lltti'V 1
itlii'i''
Willi
'>■'•' .'/,
iwr. !'
.Ill
■ill', alKii,
.i/.»,-i''/, V. T/o'^'s r. ('. I". •Ji'j.
4. I'lniij' nl' /iilill III/ Ml lllllflill.H
rill II I, lull Illl, wiTi' lightly n'i«i'ti'il, liir tl
rraMiiii j,'i\i'n, tlimuli tiny uniilil have Imtii ail-
niiHsilih' attir tlir Milir<i'i|ni'iit cvi Icin'i' : lull .ih
tlii'V wiTd lint tlii'ii a;;.iiii nitri'cil, ami tin' jilain
tills CiiMi' WaH lint iillr tn lir I'.IVnin'l'' I, th
I Irln.ii'il tn inti'l'lili'
li.'ll
mil
al.in, tliat ilclVii-
(.S'li mill'
XI r
■.''. n.
llil.ltmvrl'Ht.iiif olliri' a nn'innii.il nl a niiil't,'aj;t
i„r yi'iirit I'liiiii an alien In tin' nriyinal j,'ianti'r
ilaiit was lint i'n!ii|irllali|>' t'l )ii'iiiliir(i tlii' will.
Ilinjliiill \.Sl„,,li,iril, •_'.■) (^ il. XMi.
Ilt'lil, that a iiniiinrial twiiitv live vi'arn i
iM.
,'i'iiMii, mil
liT w lin.M' 111 ir till' travi'i'HiT wiiii'li a witm'ss stitrl In' liilii'X nl tn lie siuni'il
ll a Nt'i/iii III
lint riil|rlll>i|Vi' i'\ liliuii' n
at tilt' tiiiit' iif till' iniii'tL'a;j
lit till
iliiiii», i'
(„. ill till' alit'ii at tilt'
/>,rv. '/'/in.A, |)ra..Tn.
\ iiii'iiiiiri.il i* ;{iinil M'.'i'iiliilaiy I'viilriiri' nl .'<iirli
lattHi'l ilii'iliiila.s aro tiansirilii'il in il, withnnl
',illii,„tlii'Milisi'i'iliiii;; uitni'Hs, Ami it i.'* iin nli
I ktiiiii 'ill' tlii^ jmrjiiwi' that Urn aihlitiniisnt tin'
1 lulmrriliinnwitiii'SML's tn tin' ilfi'il ari' imt insi'rtt'il
; iiiit. /»ii. ll. Kii'iliiiiil V. Crii-iiliil' , li (>. S. :!.">(.
.Miiimriiiln 111" ft'L;i.stt'rt'il ili'i'il.-i arc si'i'umlary
Uviili'iiw ""'>■' •' iirniliii't'il ami |iriivt'il, nr if
Itkirtv vi UN olil witliniit jii'iinl', I'liininj,' ri'niii tlif
IrtL-istiy iitlicc. Miiriiii v. Hnli-i, ll ('. I*. •_'(1S ;
|.i;.i,i';« V. ''lO'/M, /'-. -I-'.
, 111' iiii'liiiirials ci'rtilii'il Uy tin' ri'oi.itrar
liM'i'iiu'iicu iif tho ciint'jiit.-^ nf tin.' ili'i'ils. I.i/iirli
|t.'/7/.i/'.(, lit'. I'. •-'.")!>.
.\ iiwiuiiriiil sigiiDil liy tln' ^,'raiitnr in imt siilli -
Icitiit I'viilt'iK'i' "f a iK'i'il a;,Miiist a |irisnii imt
liljiiiiiiii! iiiiiliT him, withniit lir.st afrmintiii;,' I'nr
Itkiiri^iii-il. '>■""■'/' V. \irill,.i, IS l^. i{. 47:{.
Iiiijii'tnioiit tlio iilaintitl' )ii'iivi'il a ii,i|ii'r titli'.
Itat (!i liitelit iliil lint i.s.siio until I.S'JIl, ami tlif
lilrel li'iiui the iiati'iite;' was cxi'i'iiti'il in IS'J-t.
ITIii- ili'i'il was lust, ami the iin'iiinrial nf it
lilitwi'il it tn liavi' Imi'ii an nnliiiary I'onvoy.'UU'e
Iin fii', Imt not whit rnvunaiits it I'niit.'iiin'il,
|Thi' pbiiitill' gave a iintieo iiinli'r ( '. S. l'. ( '. i-.
',, anil ili'I'einlants shewi'il mi title :
iHtlil, that tlie ileeil liy the iiateiitiH' hIihiiIiI In
iprtsiuiieil til liavi' lieeii iilie wliieli wniiM niier.ite
wi'Stiiiiiiul, mill that the statute' aniilioil. Ann-
iimjw Lilth-it III., I'O (.i. 11. 4*2r>.
Priiiif liy a witiies.s that he saw a deeil a]i]ia-
iMtlyansworiiii; the ileseriiitinii oniit.'iiiieil in the
Bt'innrial, ami its loss, witlinut further ]irniit nf
iilwi'itiiig nr geniiineiiess, is lint siilheieiit tn
makfaniiimirial in the eniiuty registry exeeiiteil
[by the grantee only, ami iirnveil liy an alliilavit,
pliirsiil, nf a witness wlni swnro that he saw
tlie ciiiiveyance iliily sii,'iieil liy the graiitiir, gnnil
^miliary eviileiiee nf the original oniiveyaiiee,
; tile alisuiiee nf any act done or jinssossinii
liktii fill' a Inii'/ series of years, (liiiiiih v. Mr-
Briik, IOC. r.'KK) ; fnllnweil ill Ansli,/ v. Jhro,
|lU',r, 371.
In ejectment, the plaintiff claimed under tlie
Kirof B., who (lied in 1821), leaving a will, which
jfasshewii to he in dufeiulant's possessinn, who
Winwl to jiroiluco it on notice. Two iiieuio-
liy the ili'i't'vsi'il jgraiinr in the ileeil, liasiiu,' his
III the f.iet that tin
'lllHI'lv
'iioniitlire elm
ri'M'iiili!;''! Ills liimlw riling, whiehhe h.-nl seen
in the liniiks ami iiajiirs lielniigiiiL.' tn him in his
(the witne-iM'sl I'liarge, tlinilgh he had never seen
him write, and the si^^'iiatiires nf the witiu'sses
to which iiieiiinrial, mie nf wlimii was dead and
the ntller lint nf the jlirisdiit inn. he knew ; nr a
nieinnii.il ii)iw,'irils ni thirty ye.irs old. iirndiii'cil
liy the delillty ri'Lji^trar frnlli the regi'-try nlliee,
and signed I y the j^rilltnr in the deed, lei'itillg
the deed and its cnnteiits ; is gnnd (^viilence nf the
execiltinn nf the deed ; ill the litter case either
,'is all'iii'iliiig seriiiidary evideiiee nf its emiti'iits,
wliieh wimlil 1' I .•ig.iiiist all the wnrld. nr an
a declaratinii "i' adniissinii iiiider seal liy the
iiWIlcr nf the tee, M lli'tl ill |iii.ssessiiill, that he
had snld and enliveyeil tn the grantee. Seinlile,
th it in the I'l inner case |iriinf nf hainlwriting nf
the grantiir aliuie wmild liavi' lieeii siillicieiit e\ i-
deiiec. Held, alsn, that a iiieiiinrial signed liy
I the graiitnr is evidinee nnt merely against the
giMiiliir ,'uiil all el. liming under or in privity
with him, Imt against third jiirties alsn, aslieiiig
a .■>t,iti'nii'iit and act liy the party in pnssessinn
against his own interest as the reputed nwiier nf
the land in i|iiestinn. (jlinere, whether this
wimld lie sn if it appeared that tin; land was at
the time in aetiial pnssessinn nf snnie line ntlier
than the gr.intnr, and iint holding in privity
with him. /i'"sii // v. Frm' r, l.")('. 1'. .MT.").
The execution of a releiseof dowtr lieingili.s-
, imted, the lU'fendant proved the hamlwritiiig
! of I'., the snliseriliing witness, who was deail
iSunilile, tli.'it the meimiri.il of the release, dated
' tin; day after it, with the allidavit of exeetitinii
made l>y 1'., was admissilile. as jiart of the res
gt.'sta". and as shewing that I', had sworn to the
j execution, /i'n.w v. Ciiijli'r, "27 (). H. -70.
I In ejeetnietit liy trustees of a Wesleyau
I Methnilist eniigregatio'n for the parsonage pro-
perty, a search for and the loss of the deed from
: the patentee to the trustees at the parsonage
1 Ir.iuse having lieeii proved : Held, that t" e evi-
! deuce of the subserihing witness as to the execu-
tion of the deed and memorial, with a copy of the
ineniorial certilied by the registrar, was clearly
sullieient secondary evidence. Tlii' Tnisti'i-n nf
tlu'Aiiilii/i'ille (.'oiiiiri'iialion of llu' Wi'ili'i/iiii Mc'lio-
ilM Church in Camtda v. Orewn; '2.3 C". P. 533.
Ill examining a title under the act for (juietiug
titles, a memorial executed by the grantee, is
w^
i;
EVIDENCE.
l:]Sfj
f.
,'()()(1 secondary eviilencc where the possession I
Ills l)fun in accordiince witli the tithiso ohiinied. ,
Tile weigiit of autliority aj^iears to 1)e also tliat '
siicli evidenee is admissible in ordinary suits. Jtc 1
Jllmibi", 1!> t'liy. ■■103. j
A eoiiveyaiiee executed hy a married woman
and her liusl)and in tlie year IS-."), was lost : —
Held, tiiat the re;,'istration of tlie memorial was no
evidence of the wife having' been examined, or a
certilieate of the examination having l)een en-
dorsed on the deed. / 1>.
See /'/('/( At V. .Liniuj-fhiiic, 17 C. 1'. 1,"), p. 13S'.)-
Where a sealed instrument was ]ilia(U.il witl
a profert and produced at the trial, ,inil .si,),^,
(juently in term, Init was afterwanls iiiislai.j
and on a second trial defendant anricd td ailn
the execution, knowing that it had '
and will
."). Oj Ei'hli ticc jircr!tin.i/i/ 'I'lrcii.
NViicre on a .second tiial it a])pears tliat a wit-
lU'ss who was examineil at the first trial is absent
from the country, his evidence then given may
be reeeived. Siitor v. Mr/.cdii, 18 Q. B. 4i)0.
At a trial for nnirder the jirisoncr's counsel
projioseil to prove by a witness his own deposition
at the in<juest, and to shew liy otiier witnesses
that it contained a true statement of liis evidenee,
althougli the witness alleged it to be incorrect.
The learned judge ruled tiiat the coroner must
be called to [trove the deposition, lie was after-
wants called to prove them, and the evidence
before ollered was not again tenilered. Senible,
that the ruling as to proof of the depositions was
right, they liaving been taken l)efore a coroner ;
but, Held, that tlie jioiut became iniinaterial
wlien they were afterwards proved in acconlance
with it ; and tiiat it must Ije assumed that it
was not intended to adduce the other evidence.
Jfiijiiiii V. J/i(iiiiltuii, l(i V. V. 34().
The object of taking depositions is not to
afford information to the prisoner, but to secure
the testimony. Jh.
Held, that under s. L'.S of 32 Vict. e. 32, it is
irregular f(U- the judge who tries the ease to call
a jury or to receive deiiositions of witnesses as
evidence; but tliis is not gnmnd for prohibition.
Jii re JJriiini tunl U'dl/nn, 8 L. J. N. S. 81. —
C. L. t'hanib.— (!alt.
t)n an examination of a witness under ('. L. V.
Act, sees. 184, 188, his evidence will not lie rea<l
if the right of cross-exaniiiiatiou has lieen denied.
Cu!rlil<- V. Juhmtuii, ii 1'. It. 4(i-_>.— (,'. L. t'lianb.
— Daltoii, (.'. ( '. <t' P.
Where a person who had given eviileuco in an
action at law between sulistantially the same
persons as were the parties to this suit, was
afterwards committed to the provincial ]>eniten-
tiary, and refused to be examined in tliis cause,
the court orden^d his evidenee to be reail from
the notes of the judge wlio had tried the action
at law. Sirilzir v. lioiillim, '1 C'hy. (i!t3.
See Powell v. L,<i. '.'0 Chy. 021, p. 1333;
Ilnnarii v. Dk-vi, 23 Q. B. 580, p. 1394.
(•>. Othii- Vows.
The recognition of a bond in a letter from de-
fendant to plaintiff, with proof that a document
purjwrting to be a copy or draft of such iusfcru-
nieiit was shewn by defendant with the title
deeds of an estate to which it related, is evi-
dence to go to a jury in proof thereof, after notice
to defendant to produce, Rwhli'au v. BklwvU,
Dru. 357 ■
lit
- . , '^'^^^ mislaid
icn secondary evidence was ;.'(iii,. jm,.
defendant objected to tliat sccoiidaiv ividin,,.
but not to iihji secondary evidiiuc, the inm-t
refuseil to allow a nonsuit to be tiitcii'il tnrtli.
non-production of the instrument. /,'i. »■,/,,/,
Tula; 4(). S. 207.
Parol evidence of a lost jpatciit hir Lm,! ^
not admissible ; an exemplilicatioii must lio iin,
(luced. McCdlliiiii y. /><irii, H (}. !'.. l,"i|).
To connect a defendant sued for nialicinus
arrest with the writ, the writ itself sIkiuIiI 1,^.
))roduceil, or, to let in secondary I'vidfii,^. jt<
loss must be shewn or notice to proilnic it,i,|,.
less defendant has adoiited the arrest, aslivlilin..
atlidavits in jnstitication. Tli'>ri'r v l/,',,.„„ 3
Q. B. 23(1.
Trover for iiroiiiissory notes. The iijaiiitilt's
counsel, in opening the case, stated tliat tli.'
notes were left by the plaiutill' with tlie (ifffn.
dant as security, and that tlicy had liccn "iwu
n\i by him to the makers impniinrly. Iu'luivaiiv
demand oil the defendant or iviusal nu his part
to return them :- Held, that no notice t(i tlii'
defendant to produce was necessary : ami dira-
per, J., di.ss. ) that the plaintitV was eiitiflcii h,
jirove the contents of the notes witliciit s1r«.
ing the originals lost or destroyed, cr laviiii;
any foundation for the admission ot' secmulaiv
evidence. Till;/ v. FUhir, I0(,». 1! :{•_'.
Senible, that under the circuiiistaiiee.s et this
case, secondary evidence of a deed in the chain
of title was properly received, some evideiRv <>[
its loss, and of a search having been given: aiiil
the court refused to intci'feri', as the siiliiiiincv
of such evidence was not (dijceted to at thu trial.
Tifaiii/v. MrCunihcr, 13 U.' B l.'i'J.
In dower, the loss of most of the deeils affoctiui;
the title was jiroved (or rather |iresiiineili Irmu I
the burning of the house of the owner in fee, hut
a deed was proved to the deiiiandaiit's IiusIkiihI
and brother as joint tenants, by iinidiutimi uta
memorial from tlie registry otliee, and the ileatli
of the demandant's husltand liefoie his hiiitlur I
and co-jcdnt tenant was also proved : - ilehl,
that secondary eviileiiee of the deeds \va.s ailmis-
sible. Ihidl'llx. FniM'i; 12 C. 1'. ;it<3.
In ejectment, a copy of lui uiiderleasehetweeii 1
the tenant and his umler-teuant was pnived in
evidence upon notice given to prodiiee it. l'|»m j
objection in term : — Held, adiuissilile. a-i a^'aiii.4 j
the under-tenant, he having adinitteil it v,:\ft\\
copy, and no objection having been taken t" it |
at the trial. I'oiiuill v. /'oi'vc, bl ('. I'. HI.
Where the i.apei's belo'iging to the ilistiiitj
court and to the sheriff had been Imnieil, audi
the records themselves thus destioyed ; lleld.illj
ejectment, that the defendant, claiinin^' nnderaj
sheriff's deed, might prove the jiidyineiit audi
executions by secondary evidence odiitained iiil
the sheriff's books and in a feeliiioknf theeiunt,!
and by the plaintiff's attorney in the jiiilj;nuiit, j
whose papers had also been burned, anil ay tli»l
plaintiff ; and that he was not hemid t» iditain
exemplifications. J/caiii/ v. J'aibi; il ^i- H-i
500.
i':!i
,t was lilfiulcil with
lie trial, ami suIim,.
ll'tiTWanls iiiislaii]
ant auivcil tuailmit
it liail lioi'iuiiislaiil,
1100 was L'liiii' iiitii.
loodiiilarv oviik'ii, i-,
oviiloiuo, tlio iimrt
(> lio oiitoroil tdi'tW
'UlllOllt. /,'oll-,||;i; V.
; |iatriit I'm- laiwl i*
lioatinii must lie jirn.
i, 8 g. r.. irio.
t suod for nuilioinns
vrit itsolf sIkhiW lie
(Hillary oviiiriicf, its
ico til proiliii'i' it, mi-
tlir arrost, asliytiliii;;
'I'liKi-i" V, .Uii.«./i, S
iiitos. 'i'lio iilaiiitiltV
iiso, statoil that tin;
intitV vitli till) ilitVu-
tlii'V hail lii'fii givfii
iiil'riiin'i'ly. lii'l'iirc iiny
(ir rol'usal mi liis [liirt
iiat nil iiiitii'i: til till'
iR'ccssary ; ami (lira-
liiititV was iiititlcii t"
uiiti's witliuut slitw-
ik'stmyoil, or hiving
ilinissiuii iif si'ci iiiiliii'v
■, 10 t.>. H. ;i'2.
1 oirouinstau.TS rt tlii>.
iif a ik'oil ill the tluiiii
1, siiim' cviik'nei' "f
iiig licoii given ; :uiil
IV, as tl'.e siltlieieiwy
joi-toil til at the trial.
15 159.
1389
EVIDENCE.
l.WO
t
I if the ilooils ati'eetilig
thor |irusuiiieili Irmii I
tlio owner ill lee, Iml;
einaiiilant's husliaml
<, liy iiroiliietimi "i:! j
(itlioo, anil the ileath .
,1 liefiire his liliither j
ilsii jiruveil ; He
tho (loeils was ailiiiis- j
12('. I', ^^s:^.
II nniler-leasehetweell
toiiaiit was iiriiveil in
til iiroilnee it. rji'iuj
aihnissililo, ;w against
ig ailinitte.l it was a
viii" lieeii taken tuit |
,»•,.,-, KiC. I'.m.
I'lgiiig to the ilistrietl
lad lieeii liiirueil, aiuli
iilostrnveil:- Helilllll
Lilt, ehiiiiiing miihT»j
[o tho juilgiiu'iit iuull
Iviilunoo wiiitaineil ml
Ifooliookiit tlieeiiuiU
liioy in the jmluim'nt,!
li Imnie.l, ami hy tli9|
not limniil to nhtain
It is not necessary that a writ nf fi. fa. wliioli
hwiii't hoen retunieil, shmilil lie onrolkMl liofnro
it can he given in eviik'iioe ; lint the writ itself
raav if liiiiil'ieod, lie given in eviilenee ; ami if
i,jj , 1,1,1 iinenrolleil, seeomlary uviilenee may lie
liun of it. Soi'lcf V. Douoniii, 15 1". 1'. 121.
hi ejcetnu'iit, tlie defemlant olainieil umler a
jln.filj'sileoil, whieli was nut |ir(iililoeil, .•mil, after
ivin" eviilenee of a seareh, wliieli the eiinrt lielil
siittie'ient, ilefem'aiit, in iiriler to jiruve it, ]int in
aucxcinlililieatiiin of the jiiilgineiit aguMist I-'.,
aiidoitheli. fa. giiiids returned nulla Im" i, anil lie
iiroihieeil the ti. fa. lands fimnd aniiing the iia^iers
III the sh.ritl, since deceased, with a nieiimran-
iliim annexeil, 'vritten and signed liy the sherifl",
stitin" that this hit had keen sold at siieriH"s
i im the 11th Decemlier, 1S'_'4, for fl'_'."., to
M., ivhii hail jiaid t!ie slieriir's foes. The <!it:i lli
contaiiiiii- tlie ailvertiseinent of the sale of this
lilt on that day under tlie execntion was also
[irDiliiceil. A nieinorial was then iirodiieed from
tlie re"istrar's oltiee, of a deed dated Kith I te-
leiiilier, ISHO, hv vliieli the slierill', in ciinside-
nitiiin lit fll'.'i, giMiited I''. '.s interest in this lot
tiiM. I'li.ssossion had not lieen t.iken under the
alk'eil ileeil until eighteen years afterwards, liut
itiiailgiiiie for tlie last eighteen years in accord-
ance with the title derived through it:- Held,
tbt the slurilV could, in 1880, make a deed
miller the sale of 18"J4, notwithstanding the
(ielitiir's ilo.ath ; and that the eviilenee was snlH-
cieiit til c.^tahlish such deed. Fiililx v. Liriiii/-
M 17C. r. l'>.
The eviilenee shewed that A. B., the ancestor
ill the female iilaintitt', through whom the title
wjs olainieil. lived on the land in iiuestion in
Mt'.', elainiing it as his own, until 18-13, wlien
ke left it: and awitnes.s deposed to having keen
toll hy \. H. and another that they had ex-
oliaiigeil f:uins and ni;iik^ deeds to one another,
tile witness stating that he had read the deed to
.V B., dated liefore \ii',i'2. Another witness, tlie
itcoiiilwifeof A. B., stated she gave to ^V. H.,
fiiiiiif A. R, anil huskaudof defendant, the deed
m i;uestiiHi ; anil there was also evidence that
ff.R.,hefiire his death, told a witness exaniined
itthe trial that he had got this deed, which ho
(liewril til witness : - llehl, siifKcicnt evidence of
liiee'linfeo to .\. B. SleAnlmlJ' it ii.i; v. Jhirlr/i,
i;C. I'.KIO.
To emiiiik'te the elniin of the jiaper title to the
I Win respect to which a certiticate of title was
pmeil, proihietion or proof of a power of attm-
1 M (riiin the jiateiitee to one J. was re(|nired.
I Stanh hail heeii made for it without success.
[ Ibexisteiiee was not sworn to positively ky the
[rtitinner, iiiiil the only evidence of it was an
Akvitiif one 1'., win; did not swear that he
U ever seen it, and did not state his means of
biiwleilge (if its existence. There were also
Mesusiiieimis eireiinistances with regard to a
i»\ executed app:ireiitly in pursu.anee of the
pnwer. The only eviilenee as to jtossession w.is
hiUtenient in the petitioner's affidavit tluit one
H.,tiiwhiim the petitioner agreed to sell the
lutl in 18(il), was still in possession, and that
jwsessioii had always aoconipanied the title.
Koiidtiee appeared to have keen given to the
I (ersiin who was in possession. No affidavit was
I pot ill as to adverse claims served upon the per-
I m directed to receive them. The evidence as
jloposiwssiuuand the existence of the power of
attorney was -Held insntlicii^nt, and a certiticate
of title w:i.s refused nntd further eviilenee should
ke given to clear np the suspicious circumstances
in the deed, said to ke executed in iiursiiaiice of
the jHiv^-er of attorney, and alVording positive
proof of the existeiiee of the power, or elso shew-
ing the exercise of ai'ts of ownership, which
would justify the presnniptioii that :i conveyance
of the legal estate had keen m.ide liy the p:iten-
tee. Xotice was ilirected to ke given to the
pel'son in possession, and an allidavit as to :i(l-
verse olaiins ordered to ke furnished. I'r S/ra/,
8 L. J. N. .S. lit;. -Tayhir, J.'r/rn,.
Will. l^uiMii' .\iri:i; Xorn r. in I'miini i:.
I. H'/l'll \:ilirr iii'Cv.-<.iiiiil.
ill assumiisit for not delivering goods, after
the ])laintiti' liad proved a verkal agreement,
defeiiil.int gave in evidence a cii]iy of tlie alH-
ihivit of dekt made in the c:uise. :inil of an ;igree-
iiieiit in writing incorpoiated theiein, sworn to
ky one of the idaintitl's, and then c:dleil upon the
plaiiititl's to produce the crigiiitd agreement, not
iiaving served any notice to ,iriiiliice: - Held, that
no notice to [iioduee w:is necessary, the plaintid's
having shewn themselves in iiossession of the
agreement by tiii'ir affidavit of dekt ; and that
;is till! writing was the kest evidence, it should
have keen produced. (llUurt it nl. v. .Sin /ti i; 'A
O. S. 13.5.
I Before parol or secondary evidence can lie
I given of a note keing r'ceived ky the pl.iiiitik's
; in satisfaction of claim fur work done, defendant
must prove notice to the plaintitf to ]proiluee the
\ note. Iliiniril v. MfDuiniall, 3 ( ». S. (>47.
Ill trespass for taking goods : -Held, that a
notice to produce a writ of execution was not
dispensed with ky the writ keing pleaded in
justitic;itiiin, the general issue keing also on the
record. MrVriu v. (Jaliitnir it nl., (i (>. S. "lOO.
Trover for promissory notes. The ^ilaintifl's
counsel, in opening the case, stated that the
notes were left ky the plaintiti' with the defin-
daiit as security, and that they had keoii given
np ky him to the makers iinpruperly, kefore any
demand on the deteinhint, or refusal on his part
to return them : Held, tlnit no notice to the
defendant to produce was necessary ; and (Dra-
per, J., diss.) that the phiintit}' was entitled to
]irove the contents of the notes without shewing
the originals lost or destroyed, or laying any
foundation for the admission of secondary evi-
dence. Tillii V. /■•;.</;<;•, 10 (l W. 3-'.
In ejectment, the point in dispute was whether
T. H.. one of the phiintitls, had ever conveyed
the land to one J. Ik, deceased (under whom
defendant derived title). Evidence was given of
conversations in which T. It. had stateil either
that he h;id given a deed to .1. I!., or that tho
title was vested in .1. R., and a letter from T.
I\. was also produeed referring to such a deed ;
kut no atrictly legal evidence was given of the
contents of such deed : Held, tlnit sneh evi-
ilenee, under the eircuinstanoes, was adinissikle
on the part of defendants as primary evidence,
I and that notice to the plnintiU's to produce such
I deed was unnecessary. Jiiiijir^ it <il. v. Cunt, 7
('. V. 8!).
A letter written ky defendant to plaintiff,
saying that he was still willing to settle iiHiicably,
' i ^ JH"""
1391
EVIDENCE.
but that if tlio plaintiff vofuscd to meet liiiii in i oal onoi', wliioh could not mislf.K
the same sjiirit he wo\ilcl i)u..li tlie matter to the
utmost :- Held, not j>rovahle by secondary evi-
dence, witiiimt a notice to produce. Jloud v.
Croiikilr, I'll Q. B. 98.
Where a conveyance is i)roduce 1 upon notice,
by an adverse party, who claims an interest in
the cause under the deed so i)r(Mliiced, the party
calling;; for it, is not Iiound to prove its exeuutioii.
ChUltuliit V. ,'i/i(l<loii, 2 ( 'hy. 178.
2. Seri'icc of Xotkc.
Where defendant, residinj( in the assize town,
was served on Saturday with a notice to (produce
on the following Monday i- Held, sulileient.
liohirtnoii V. Jiiiiiltiiii, H. 'r. () Vict.
In trespass foi' seizing the plaintiff's property
under an illegal execution said to liave been
issued by defendants, a notice to pi'oduee the
writ, served on delendants' attorney four days
after the commencement of the assizes, defen-
dants living more than ninety miles from the
assize town, v>"as Held insutlicient. MrCrac v.
Uslnii-Hc it 111. ,()(». .S. ,')00.
Quaere, can a notice to pi'odnce be served on
the agent of the defendant's attorncv. Jann's v.
M!//s, 4 (^». n. 3()().
The sutheieiicy of a notice with respect to
the /iiiic of service, seems to rest with the judge
at the ti'ial. / '/.
Service on plaintiff's attorney on the day of
and within one hour of the trial, is too late.
yuK/i V. Bii.-<li, 5 V. 1'. 300. i
Tn dowel', the demand was served upon the ;
tenant of the lands, who then di ••lared that he
did not own tiie Limls :- -Held, that a notice to
produce served u}ion sucli tenant was unavailing
to let in secondary evideu(;e of the deeds under i
whi'di demandant claimed. JIarrin v. HkIch, (i
C. P. '.'08.
An afhdavit
!iot admissible
(lihiioin; ") g. H. 21 -2.
Plaintiff s\ieil defendant for tlie iiriti' ,if
fruit trees, and the defence wa>^ lliat t!ii.vT'''i
not been jiui'diascd by delendaiit, Imt ivaiv,'.'
to sell ui")]) connidssion foi' iilaiutill'. h.MciiJ."
h,ad given notice to ]proiluce " tlic s, vtml ,1,
nients hereunder sjpceilied, and all i,tln,|. ■
nients, letters," itc, " relating to tlie n
(juestion in this cause." 'I'he sclnilul
all letters, iS;c., and "parti
iliii.1l.
liittci-s in
lui'iiifii
•>■ i''-lt:iili „nl,.|.j
given liy defenihint to ))laintili to hirw;,!',! .i
trees which ilefciidant was to sell fur tii'c i,I '*
titr under the agreement betwe.i] tlani''"|Ji
which orders are dated in orabuut Mardi i's.ic''
; - Held, snthcieiit to let in stHMjinlary c'vi.lin'p
[of a letter written by defendant tn plaiutiir ^
. March, reipiiring the trees to be sent l.v
, tain timi\ Li.<li( v. Miirr'it^nii, lilil 1; 'i
111 1
;!(i.
4. Otlu-,-(\i.<
Where in ejectment notice to prii(liici;a n»\n \
ase, under ,ch tlie lessor ot tliu
claimed, haii
and tl
lilaiutitfj
Ml given, aiKi the lease was imt l
produced, but an exc:mplilicatioii cil it initin
and defendant gave parol tcstiiiiiinv that the I
lease had been assigned to a tliinl '[.artv, win,}
ha<l given a mortgage on it to the less„v',i| the
plaintiff, which ha<l heen [jaiil at the ihiy; aid
tlie jury found for the defemlant : -lIuLl! that
the evidence that the lessor of tlie jilaiiitilf Jijil
parted with his interest was riullicieiit tn Mipiinrt
the verdict. J)i)<- d. < 'rdi'ihri/ v. CnlililKlih i
(.». S. ;<2S.
Qiia-ro, has the plaintill' a right td nl! ninle.i
feiidant's attorney in court, in an actimi f„ri
malicious arrest, to say u hetlier lie liiSiirhMl
not tlie writ ill his ])ossession. Jhhikv ]I;IiA
4(,). 15. ;{(ji). " "
In dower, notice was given to (lel'einLiiitto)
I produce his title deeds, and dcfeiulaut's titliw,!
, ■ c i- .. 1 • ; ^^''"* ^^■'i''* calleil, ileclined to swear iidsitivilv
it service of notice to produce IS „.i, ,+i. ... n, ,„ „.' , ;„ i ■ l;"^"o}i
, /.I p \ f ,,— , whether they were 111 his possession or his SIIII1-
1 1 1 "T ,••, a- ',,'■'• ^' ',"•' l-'l^'l'l' thatsecondary evidence. pfthe.lfea.MiMl
unless made by the iilamtilt s attornev or his „.],,, ;„„;i,i,, /..,;,, . , .. / ,•,■! n,,r
clerk. Patfer-L v. Morri.o,,, 17 Q. K.^KIO. I '^'1""««'''^^'' '""'"'"' "' "■'• '■■ /-'"'. ^^- I'SH'T
Qua.re, whether service on a female servant I , Jl'^l^^l'^r'-itiou alleged that the plaiiitilf aid)
at the oHice and residence of defendant's attor- > 'l'=»^'"''i"t ^'^'-'1' "'^■^'••"'"^ ''"'""l to the utiur, .„.•[
iiey 18 sutHcient.
See iSiilliraii v.
Il>.
Khnj, 24 Q. B. Kil, p. 13<).3.
3. Fiirm of Xutlci
ditioned, after reciting certain dilferLiifis thatl
had arisen, to abide liy the aHanl nf twiiinr-l
sons named, and such third iiersona-s tlieyiiii,i;ht|
I aj)[ioint, eoucerning the same, costs to he in flkirl
discretion : that an award was duly iii;iili' tli.".^
defendant slunild pay tlej plaiiititl'.S440, :iiiiUaih|
Where .\. defended as landlord in ejectment i 1,"!;\ *'',•,'"' ""^"1'" " ,*'" '*".'',";>'<^',"ii. •""! H
against a inirchaser at sheriff's sale of an unex- : ^l''*^' "*''«' «'«ts, should he paid ,y thrme,|uall J
pired crown lease, sold as beh.nging to B. by i '^''If ^''..'.'''''-l^'^"'^"* "' the ^440, ana a m.iR.t»r
assignment : -Held, that-after proof of an exeni- "^ ^^'"^ *'*.?;, ^ If'is. '. ;;"y"'S lie suhnus.sion aiil
plitieation of the lease, the judgment, ti. fa., and I IV'''^''"/- • ''^ pl'""''" l"-"v^-l the exucutiui. ^
sheriff's deed, -a notice to produce the original | *'"-" '^^^f "I'"'* « bond and gave sccmaaiy m^
lease and assignment, without speeifving par- ! '''i"'^^ "* ''''"'.'« exe-cute. a similar iMmaiiinidf^
ticulars, or shtAving them to ha\o been in A.'s i ^'l'^'' ^' f fT\^'- ;''''*f.' '•'"''' '"" "' \''%
possesshui, was suth .ient to let in secondary evi- , l""»t'»'^»tt.f «'« third arbitrator eiiaoiseauintij
deuce of the assign i.u- it to B. Due A. MiUuiri'
V. Dtium, 2 (>. s. :<sy.
In an action for malicious arrest, a notice to
produce the writ of ca. re. issued, &c., at the
suit of A. against the ili'/i Niluiif in this cause :—
Held, sufficient, the mistake in using the word
"defendant" for "plaintiff," being a mere cleri-
having served a notice to produce on ilulciulaiiti
attorney, at 11 a. m., on the day iiieviDiis, thi
commission day, defendant living sfveiiteei
miles off', at a place to which there was .i a;iil|
mail. lie also proved by one of the arhitratun^
the execution of the award by all three ; -HtlJ
1. That the execution of plaintiflF's imiul beiiij
put in issue, it might properly he iiresuuiwl "
EVIDENCE.
i;594
(ivrll t(i lU'lV'lulUit to
[ill ilcfi'iulautV latliir,
1 s\vc;ii- iMisitivtly
los.sL'Ssioii or Ills suns;.
lcneL'iit'tlif<lufils«i«|
. V. I.iur, (1 ('. 1'. ,'
I, j-jKissessioii of (lefuiidiint's attorney ; au<l if
liu'iviiiiti tli'it the notice iiuiler the eiieuiii-
litaiK'rt "''^"' siitfieieiit. SiiUlrtm v. Kin;/, '2i ().
i nil.'
liu'ifotnieiit, acojiy of an iiiider-leme lietweeii
lih tt'iiaiit ikiiil his miller tenant, was priiviMl in
I viikiirt iiiiiiii notice f^iven to jiroilnce it. l'i)on ',
|cl)jfttmii ill term :-
Iniisn
Held, aclmissilile, asa^^ain.st
the uiuler-teiiant. he having ailniitted it was a|
., .jiiil 11(1 (ilijectiou having liceii taken to it
^Wtrial. C'.uu.// v. roarr, V.iC. V. 01. |
Wkretlie jilaintiff claimed niider a will, and
edcfemlaiit under a deed from the lieir-atdaw, 1
,5tcrt,niLtiiie the will: Held, tiiat the plain- i
hiviiilliii)-' for the deed under a notice t<p |iro- j
iduiv.'iiii'l iiiit^t'"M '*' '" "" '"'"ther hranch of the i
Itaie.'luniislu'd prima facie eviileiice of the c(Ui- j
|ii,ler;iti'iii :is mentioned in it. Jiinii/;/ v. Fo.r, •_".)
II. lUi4. !
WlifiTa I'liiiveyance is produced upon notice,
Ibv all :iih'L'rsc party, who claims an interest in
Ittccaiist; miller the deed so produced, the party :
lalliii" fill' its production i.s not hound to prove
liUesefUtioii. ChUhnliit v. Shclduti, '1 C'hy. 17S.
fXlX. i'liiior "V I'^NriUKs and Iii'.ri.AiiArioNs.
TliciikiintilV is not hound by credits given hy
Jhilii in iiociiiuit, on the mere statement of the
liWtiiilaiit, Imt may reject such credits, unless
lliit iWciiiliUit can shew that they ought to he
lUowed. <lunhii v. Fuller, 5 O. S. 'ut't.
The ilecliirations of a deceased testator respeet-
,™; ills ii"L' at the exeentiou of his will are not
Oiiissille. Dor (1, Stcphin ct ii.r. v. /''n/v/, ;} (J.
|b.;!.v.'.
.\ lieilaratiiiii under the 5 (Jeo. 11. c. 7, hy a
Mrty ri'siiliug iu parts beyond the sea, and who
tenilil not lie received to state on oath at the
Itk facts therein coutained, is inadniissihle.
^,M\ Derhhhir, , I C. l\ 4-J2.
InsuiiiKirt iif a claim for work and labour, the
kbiiitilis jiriiiliiced declarations of witnesses,
ikiii iiiiilcr tlie imperial acts ;'» it (i Will. IV.
i h'i irai'iiortiiig to he taken before a J. V. in
fclasgiiw, Imt nut jiroperly authenticated or trans-
Bitttih— Hl'M, that such evidence could not be
eiiiviil. The court remarked upon the great
aiit ni aiutiiiii apiiareiit in the provisions of the
tatiiti'. Siiiilh V. Mrdiiinni, I'i t^. H. 270. .See
Hs.i'i'. ''. 11 i). H. :m, and (!(ii-(l(,n v. Fiilln; ")
V S. 174.
lu an adiiiii against the clerk of the Division
Court fur iiiiiiieys received for bailill".s fees,
ptrits iiiaik )iy such clerk in the course of his
taiii'ss ill liiiuka kept under the provision of
Bad liir that purpose : — Held, evidence against
|tt surotits. Miililli'/Md v. Gould tl til., 10 C.
, '.I.
I In an action against a sheriff for the sale of
Oils mulcr a H. fa. without paying the rent due
) the lamllnrd :— Held, that the statement of
llettnantiniHissession, made before thedistress,
lat the tirst year's rent had boon paid, was not
[vidence in the cause. Galhra'Uh v. Fortune, 10
. P. 109.
[In an action hy the executors of A., the
'ier, against the exeeutrix of B. , the son, on
1 agreement said to be lost, to recover IISOO
83
alleged to have been lent by .A. to 11., the defence
was that the miiiiey was a gift, im ciindilion that
the sun should pay the lather ,iii annuity at the
rate of four per cent, during his lite. It was
clearly proved that the t':{()() was advanced by
.\. to 1?., and that 15. gave :i note or \\ ritiiig nf
sonic kind for it ; ami it ,i]ipi':iri'd tint A., during
his lifetim.', had, in Octob r, ISIil, sin'd IV'.s
executrix fur the money, li. died on the l.'ith
of .Innc, ISiil. The plaintilf" gave in evidence
till' fidlowiii,' ri'ceipt, signed by A., dated .\pri!
•JStli, lS(il, which had been found among .\.'s
pa|iers, w.afercd to a meinnrandiiiii I k ki'pt by
him : " Ucceived from my son Stephen (i.intoii "
(abnve referred to as H.) "the sum of forty-eight
doll.irs for interest of L'lJDDat, fmir per cent., due
till! 1st day of May next, acording tti agreement,
which I cuiiiot liiid, so I have put the receipt
on tliis p.iper. ' There w.is no evidence to shew
at what time this was inide. Oefendant Jiut in
the foUowiii:; recei|)t, also signed by .V., d ited
.May .'h'd, 1,S.")S : " Iticeived from my son .Stephen
(Jaiiton till,' sum of twelve [loiinds, being mie
year's annuity diii.' tome iiecording to ;igreeineiit
bearing date'.M.iy the lirst, I S.")S •" Held, that
the lirst-mentioned receipt was inidiiiissible for
the iilaiiitill' as an entry against interest, for
though it admitted the i-ecei[)t of .'>tS, yet it
supported a claim for (JHOi) by stating the exist-
I'lice and loss of the agreenieiit, and describing
the payment as iiitere^ft instead of an annuity,
as ill the previous receiiit; .and the whole entry
therefore was niucli more for the declarant's
interest than against it. (luii/tiii v. S'rj' <l <it., '1'2
Q. 15. 47:5. Aiiirnied in appeal, •_> K. & A. 'MH.
In replevin for goods sold for taxes, the plain-
tiff having succeeded for want of evidence of any
demand by the collector, defendants moved for
a new trial on allidavits shewing the discovery,
since the trial, in the collector's blank receipt
book, op[)osite to the receipt intended to have
been given for these taxes, of a minute made by
the collector, " Wrote .laiiuary "_' 1st, ISl)4. " The
death of the collector was shewn, but not when
he died, nor when the entry was made, nor that
it was in the usual course of business to make
such an entry : Held, that it would be insnlK-
cieiit to establish a demand ; and a new trial
was therefore refused, linrlim w The Curiinrn-
liiiii.df Ihr Tiiiriiiif /Jiiiidiisit III,, "24 i). 15. •J7H.
In an action against attorneys for negligence,
the defendant W. hiving made an entry or
nieinorandum of his instructions in presence of
the iilaintiff, but not, so far as appeared, with
the jilaintilf's knowledge, offered it as evidence
of tile transaction ; — Held, notadniissible. J'/ifljm
V. WiUoi, et at., 13 O. P. 3iS. '
The ipiestion in dispute at the trial being the
boundary line between 11 and I'J, in the oth
concession of Salttleet, allidavits were offered in
evidence as to the line between lots 4 and ■"), and
14 and 1."), in the same cmieession, taken by the
surveyor employed by defenilants to run this
line in 18()0, and tiled with the registrar under
(.'. S. U. C. c. !)3, 8. 51 : -Hehl, that such allida-
vits were properly rejected. Mniinry v. Da-ili,
23 Q. B. 380.
yuii.'re, as to the effect of the words in that
section, " subjeet to be produced thereafter iu
evidence in any court of law or eijuity within
Upper Canada." One of these atlidavits went
to shew that none of the side lines in this uou-
iii !
!;!'-'r
■ill
m
H
it
! " K ¥•'■
! iIF!
^^^M^
139J
EVIDENCE.
. 'J!
■n
'■'■liiti.n.|
cession liad \wxn\ niu in tlio Di'iL'inal survcv,
owing to ii largo swamp : - lluld, not an attidavit tions as to jiudign'o, made l)y a ivlutidn ,
witliin till' .statute, lor uvideiiee "eoneerning any family, there must lie shewn, I. 'I'lio iLi
l)oiiii<larv " does not mean evidence that no sueh : that relation; and, '2. The fact nf ||i^ f, '
boundary ever existed; and on thisgi'ound, also, j shiji to the family, which fact caniMit
such atlidavit was rightly' rejected. //*.
In an iiiter])lcader to try the riglit to goods
seized under execution against .A. & 1!., and
claimed by the jilaintiiV, ('., a lirotlier of H. : —
Held, that h.'s statement, while in possession of
the jirojierty w itii the idaintitl's assent, that it
lieloiiged to his sister, could not lie evidence, as
by his own assertion. Jhiid. DiiiiIhiiv I' r
(>. U. 284, • ■ """•]
ill ejectment the plaintiff clainnil lUiikiail.J
to him from one (ieorge <>. '■ raves, tliu liirfl
the patentee, Captain Adam (Jiuvls. H,. ir J
evidence that his grantor was lli,. la-jr i/' j
Adam (iraves who had been
against the plaiiitilt, to disprove the plaintiff's "■i^y. '""• l"'t "'.the patent t
right. Kiinislniif v. 'ruiillill.-oni, 'ili (i. h. (ilO.
Tlie execution of a release of dower being dis-
puted, the defeiiilant proved the handwriting of
1'., the subscribing witness, who was dead. 'I'lie
demandant, who alleged the release to be a for-
gery, ottered to jirove a dechiration by I', that
he had left the country because he lia<l forged the
demandant's name :Helit, following Stobart /•.
Dryden, 1 M. & W. (iKi, that such evidence was
rightly rejected. Hose v. Ciii/lii; 27 (.). B. 270.
with ii deed to himself fron
' '"ipt:iin ill ty
" the alk-ueilhtji „
the same land, of which the luiid in ,ij,,|„,
formed part: Held, siitlicieiit cviijcin,. t„,L,
the jury of identity between tlic ii;itLiitte''aiii
the alleged ancestor. Jlrnirii v. I.'n'ii,,,,/,,.
W'Ul'Ii a party ■.■laimsas one nf thr lirii-s ,,iti,|
half-blood of an Intestate, and in liis liill|,||,|;.j,
to set (i;it how his interest arises, it is luwxr
for him to negative the fact of tiiu iiiti'suti
having obtained the land liy gift m- dfvisi.' I'riir
In a suit by a creditor to set aside a deed on ' an ancestor ; or, if he did so olitain it, thi'iliim3
the ground (amongst other things), that it was ' ant must shew that he is of the lihuid uf
made to defen<lant on a secret trust for the ' ancestor. 'J'ri/nii \. Piir, 18 Cliy. .'il I.
grantor and to defeat his creditors, it was ;
Held, that the grantor's statements after the i
conveyance that it was a real transaction, were '
admissible evidence for the defendant, but weie ■
not entitled to much weight. ICooi/ v. hiriii,
U) t'hv. 3ilS.
XX. Hkaksay Evidkmk.
1. Ill (^>iii.'</i(iii.'< of' Pcdujrci'.
In ejectment, between a person claiming as
heir and a stranger, slight evidence of pedigree
is allowed to go to the jury. Due d. Mtn/licr v.
Cliishiihii, iJra. 227.
In ejectuient by co-heiresses it was proved
that the part}' in possession had acknowledgeil
the ancestor's title, and it was also shewn that
the lessors of the plaintiff were his children ; but
the jury found for the defendant. On motion
for a new trial, the court would not entertain
,, 1 ■ .• ii i i. 1 1 1. 1 1 ii i. I i<> f> ■ . lee, was luii in. iieHiiiiaiaiiixtHl
tlie ol)iection that it had not lieen proved that . .-. ■ ' r ,, ■, .• , .
,, , •' ii 1 i- i 111 fit ! to in-ove a iietition trom tlic wnlnw nt .A. t
the lessors were tlic letfitimate children ot tlie , . i. c d i i .• i ..,. ,• i
„ , , ..■^, ill i. 1 Court ot Irobate, iiraviii'' dr letters II ui II
Ejectment. At the trial the |i!aintili' init i
an exemjilitication of a patent datcil lllth.Mard
17!t7, granting certain lots in fee to A. It w^
then proved tliat A. marricil in tiiis [iniviiiit ii
1794, and had two daughters: tliiit mii' nf tlu
lessors was one of those dauglitcrs: that till
othw lessor was the son of the other iliiiigimri
that he, A. , left for Xew York in tiie fall i,t i;iijj
and was heard of as having gone finin tluiicf t
the West Indies, and was at tlie time .■iinlwliti
heard from at Xew N'ork, in a very iiiiiaiiiiiii
state of health, on which accoiiiit lie liaij ,'iiii
awaj' ; and it was heard in tiie fiillii\viiii;s[irinj
that he died in the West Indies ; ainl it was
understood and believed in his family ever siiii'^
The defence was, that he died liel'ure the
March, 17il7, ami that therefore the iiateiittoliid
dated on that day was void, ami that a stennl
patent issued in consequence tlieieol; aiul
patent issued in 1801, gnintiug tliese samelamlj
to .B ■'. . fee, was put in. Hefi'iulaiit iiextiilitr4
tntlll
iiiliiiinistratiiiu \vr:
piised til put ill II pr
n, , ii " i • i. 1 1 i 1 v.oui'L oi I loojite, iiravi
CL'ed ancestor, as that iioiut had not been i . . • i i. /■ li ~ i i- i ■ i .i
. t", , ., . '. , ,, 'i ,, 1,1 i trution, and statinii the dav ot ins ileath
raised at the trial. JJat- a. Jiorronii/i tt ol. v. •, c \- i ti ^i' t i ti v
,, , ., ,^ ,, ,. '' I evidence of his death on that ilav. liiiswal
Jliiiiliii , 2 V. n. ,io;i, ; : i. i ti i 14. .. i
■' < ' I rejected. Ihe letters ot
When a ])laintirt' in ejectment capable of in- ; ,,,,4 ;„ ]t y,.;is next pro
heriting and prima facie entitled to inherit, makes ; tj„„_ .signed by .some iiiciiibers of the t'auiih (
out a reasonable case, tlie court will throw ii/khi j jt^ ^ t„ ^\^^ executive goveriiiiiciit, [iraviiigtliatj
//(,' ilffimlrnU, especially if he be a stranger to I new patent might issue, in ciiiisei|neiieeii| .if
the title, the onus of shewing a nearer heir. ! death befr>re lOtli of March, 17'.'7, as a ilnlan
Where, for instance, the plaintiff claiming by i tion of that fact b.y rehitives of the family.
descent as the brother of an elder brother dying [ ^\\^\ „„t ajipear who the parties wore that sij.nie(
with(mt issue, proved by pers(nis connected with ; the petition. This was rcjectcil also. KdfB
the family, "that they had heard of the' ehler i ,i,,„t then offered the uiciuorial i.l IS, |inniii[
brother's marriage many years ago, but knew ! that a new patent might issue tn iiiiii, alM
nothing of his having any issue," the court hold that the patent of the lOtli :\laieh, ITli;, w
this evi<lence sufficient, in the absence of any
proof to the contrary, to entitle the lessor of the
plaintiff' to recover. Doc d. Pliirr v Shu; 4 Q.
B. .S()l».
If the lessor of the jilaintiff elaini as son and
heir-at-law to the deceased owner, he must shew
who was his mother, and prove her marriage
with his alleged father. Dofi d. Humlwrnfmie v.
Thwiim, 3 (). S. 33.
pater
issued subseiiuently to the death "f .\.,aiiiiasl|
ing the grant for the benefit of .\.'s creiliters,^
whom B. Wivs one, with consent uf A.'aaiiniiui
tratrix. This was also rejecteil. hefemla
then called a surviving brother nf .\.. »lio m
ved that the latter left this pioviiiee iii the t(|
of 17% in very liad health, being in faet eoi
sidered in a desperate condition : tint ho vn
from New York, stating that he wm better, r
;is diK' 111 the lii'irs .iftlJ
V, and ill In-iliilliiriiks-j
rust iii'isos, it is iit'a'.<,-:iry|
lio fiK't Hi' tliu iliti'sutr
1(1 liy gift iir (li'vi* irn:
lid .sii iilitaiii it, dio Am^
,0 is lit tln' liliinil 111 sikIj
irr, i:U'liy. :!11.
ti'iul tliL' iilaintiH' ym ig{
Itiitoiit datril lOtli Mar-li,
li.ts in I'tr to A. It n
liinicd in this [irovimeil
lUglitfi's : tliat iiiR' Ml thl
liDse d:iiij.'liti'rs : that tbl
(111 of the iitln.'!' ilaiightiTl
!\v Viii-kiutln.'t'all»ti:!«i|
living gdiR' fnuii tluiiw L
was at till.' time ainlwliei
■|irk, in a very luvcarinii
licli accdinit liu liail „'iiiii
nl in the fnllnwingsiirin
ost Indies ; ami it wisi
I'd in his family ivcrsiik^
; ho died liefi'il-e the Ultl
tlieret'(iretlie\iatcnttiiliiil
s viiid, and that a xnm
sei|neiiee tlui-euf; ainl
granting these sarai' lainK
,'" Dffc'nilaiitiiextiilliW
111 the wuiiiw III A. til thl
■ill" fur letters lit ailmiiiii
,110" (lav (if his death
(111 tliat day. Thiswi
ts (if iidiuiuistratiiiii ivi'j
jirnliiised til luit ilia i«li
liiieintiers nf the family f
liveniineiit. imiyiiig tliat I
lie, in eiinseiiiieiieeiit Aj
jlairli, IT'.IT. IIS a ihdail'
ilatives (if the family.
11 parties were that si;ii9
as rejected alsii. IVien
. nieiiiorial uf I!., \'rm
I'ht issue to him, alkt'in
fe 10th Maivh, l?.i:.«i^
thudeathof A.,aiiihslj
lenelit nf A.'s cieiliturs.
11 cdiiseiitiif A. •» allium
l8„ rejeeteil. \kkw\»i
• lirntlierof A., whiM',1
t this iiroviiiee ill the fj
lealtli, heiiig i» f»^'' "-"^
3(inditioii : tint he «
ig that he was hetttr, ;
m
EVIDENX'E.
1308
RiteiiilC'l pniceeding to the West Indies: and iilsn, that D. ('. L.'s .statements, niidcr tl
K , j„ the following spring the witness was
leil of his death. The leanied .judge re-
j,,l evidt'iii'e of the day 'm whieli (as the
intiirniL"
",i,fS5lie:irill his death took jilaee, or of the
b lilv n'l'"t''''"" "' *''^' ''"^V "' '''^ death, or to
,• the witness to prove the statements of a
' s,iii wii" L'aiiie friiiu the' West Indies, stating
,j,,.li til hi\y>^ heen the servant of A,, or to
In ive the eiinteiits of eertaiii jiajiers (siiiee lost)
the witness received from the servant,
11 ,,1 tl, have lieeii an inventory of A.'s ell'eets
htthctiiiie of his death, and an aeeonnt of the
„f his ell'eets after his death. Andii|)onthe
[,n,lime ailmitted the jury found that A. died
Xitfithi' lOtliiif Mareli, 1707: Held, Holiinsoii,
Wr ,1 iliss., that the evidence rrjectedat the trial
Ijjsiiiaihnissilile ; hut as the nature and chirac-
iiiine parts of the evidence rejected were
jit tiiiiwii with sutlieient certainty, a new trial
,'ialiteil (111 liayment of costs. 'I'lie chief
.■ti,^' was also of oiiinion, that even rejecting
E]jj.„|i„lci)f the evidence olijected to, the verdict
JduU have heen for defendant upon the evi-
L„rt. ailmitted. Di'r- d. Arimld v. Aiililjn, ,">
'.B.lTl.
title made uiiih^r a near relative
T- ilisiiirtt-'i'
liamlili' iif inheriting, it should he shewn that
Hitrt i'* ^"I'lC "lie in existence reiiresenting the
D'<>A.P,trk
Ihtrt is
fetd ehlerhraueh of the family.
y. V. Uni(hr''iiii, 7 Q. B. 1S2.
[ The oiieiuiistance of its coining out on the
sexaiiiiiiivtion of a witness of the lessor of Held, clearly sutlieient
iilaiiitilV elainiiug as ludr that his ancestor '
kit a «ill, dot's not disahle the plaintifl' from'
ijiveriui; as heir until he produces or gives
iilciice (if the will : it is for the defendant to
lew the eiinteiits of the will. /-*'"• d. Atkiiixnii
IMhW, 8 (J. B. 344.
[Where it eoines out in the course of a cause
lit the ancestor of one of the parties to the
lit who claims at heirat-law, has in fact made
|will. it is iiiciiniheiit on the court to direct an
iqnirv nil that |ioiiit, although unnoticed in the
blii'igs. ChUiiihii V. S full'/,, II, 1 C'liy. I OS.
eir-
umstinces, sufHcieiitly jiroved his h''irslii)>: and
that it was not necessiry to |)rove the m irriago
of his father and mother unless it w.is disjnited.
W'lllhrhhj,' V. .loi„s, X\ {). \\. (ii;!.
In ejectment, the plaiiitill'i'l liincd title throiigh
the heirs-at 1 aw of !'. .\ witiu'ss testilied that
in 1S71 he called at the house of P., who wis a
retired merchant, in Lmi Ion, KiiLtlaml, hut did
not see him, as he was unwell : th it ;ifter-
wards, in IS7-, he w.is tidd hy niemhers of the
f.iniily there, representing theiiHidvcs to he 1'. 's
only hrothers and sisters, that I', had di 'd on
the •JOth of May, IS7'_', iiiti^stite. and without
(diildreii : and that li.' received .from one of them
the deeds for the lot, which were prodlU'ed, four
in nnmlier, imdnding the )iateiit. A deed to the
]ilaiiitirt"s gr.intor was )nit in, e.vecnte 1 hy all
these ]iirti('s in presence of this witness, who
stated that he was satislied they were I'. 's lieirs-
atdaw, and that he had searched at Doctor's
< 'oiiinions for 1'. 's will, Imt found iioin'. It was
olijected that there was no snllicieiit evidence of
heirship, hut the learned judge' who tried the
cause without a jury, found a verdict for tlio
])laiiitill' ; and the defendant shewiiio no pretence
of title, the court refused to interfere on this
ground, (.'iilliran v. O' Doiimll, 3(> (). B. •l')0.
There was no ])roof of identity of the ditferent
gr.uitors and grantees in the deeds shew ing the
chain of title, except the similarity of names,
iiid the possession of the iiateiit and deeds : —
" //-.
2. Efx ricntii'.
'V\\v tireat AVestcrn railway shareholders re-
sidved in IS,")7, to advance t'l."i(),()0() stg., to the
Detroit and Milwaukee railway com|iaiiy, and
again, in IS.vS, a further .sum I'lf tlOO.OtiO stg.
The lirst loan was expressly sanction" d hy par-
liament, and they also hut parlianieiitary au-
thority to use their funds " hy way of loan or
otherwise, in jiroviding proper connections, and
in jinuiioting their tratlic with railways in the
United .States." These two loans were to he
Iiicjeetiiieiit, the plaintitV claimed under one ' expended hy the iiianaging and tiii;incial direc-
L ('., whom he alleged to he eldest son and tors of the lenders. The hitter ajiplied to the
■at law of h. C, assignee of the grantee of plaiiititTs, then heing the hankers of the(<reat
leiriiMii. The patent from the erowii was to Western Railway Coinpany, to advance money
HVi<. ,111(1 the deed to L. ('. was signed under these resolutions : all tratlic receipts of
F. Vi'i'Ut as a marksinan. Tliere was no the Detroit and Milwaukee company to he de-
I eviih'iK'e of the identity of Weis and posited with the plaiiitill's, and exch:iiige on tlie
eist The deed was proved hy the ineinorial, (rreat Western Itailway's London hoard to he
secmiilaiy ovideiiee, hut it was shewn to given monthly to cover any dcliciency. The
ive K'cii in the custody of defendant, who account was opened hy the plaintifts .as "Detroit
nicil miller the will of L. (!., which he pro- and Milwankee railway account, (Ireat Western
led anil had heen with the patent in the pos- I'ailway, " and kept distinct from the (!reat
liiiii (if the t'. family since ISKJ. It was not' Western railway aeeonnt proper. I/ii je advan-
wii there was any other F. A\'eis except the ces were made, and exchange drawn : the hnsi-
n who conveyed as V . We;ist. The only ness was c;irried on for two years, and moneys
ileiice (if the heirship of D. L. ( ". was his owii. ; .advaimed hy the (i. \V. It. to the I). & M. Co..
shewed a general knowledge of the affairs heyoiid the amount of the two loans, the result
niciiiliers of the family, was hrought up in heing a large halance in favour of the jdaintiffs.
neighbdiirliood of a numher of relatives, and It was ])roved that of the two lo.iiis only ahout
Iwu informed of his heirship hy his mother §700,000 was paid to the iilaintiffs hy exchange
his father's mother. Several uncles and ■ or traffic receipts. Dittieulties arose, defendants
:rrektivcs were called, hut no other witness I insisting that credit was not given to tlieni, hut
examined as to his heirship. The defeiulant either to the D. & M. Co. or to the individual
imeil as devisee under the will of the same \,. ' directors negotiating the arrangement, and the
li under whom the plaintiff elaimed : — Held, I plaintiffssue(l forthe halance overdrawn, amount-
^t the identity nf Weis and Weast wlio made | nig to ahout .«1, 000. 000. B. * R. (defendants'
ileed to L C. was sutficiently proved. Held, i managing and Hnanoial directfirs), wrote to the
vji I
Si
I
1 tl^l'
1399
KVIDENCK.
Umj
pliiiiitiiVs, askiiii; tor :i oivilit of >!1(H).(MM> oil i:\Mi' is tlirowii ti|M)ii tlii' (Iffcinlaiit. U, I
tlicir I •. .V M. .u'liiiiiit, wliicli \\:\H I'liiisiilcrcil (Pii McKnij v. /'iinli/, (> ( >. .S. |4|. '" ''•I
till' 1st nf Ajiiil, IS.'iS, at the iiliiiiititls' Imi.umI,
iliid \Nas nc('i|iti'il liy IftttT (if tlitir imsIiJit dii
tlu' saiiii' (lay ; - Held, tliat tlu' niiiiiitis of the
l)(iai(l WL'iv adiiii.-ssiMc tor the iiliiiiitills, a-< part
<if till' lis gcsta' : - lli'ld. also, that a hank statc-
liifiit si'iit l>y till' idaiiititt's' agent at llainiltdii
to their head olliee, shewiiij,' Ikiw the aeediiiit
v.as kijit, was inoiierly admitted. When it was
jil'dposed td diieii tile aeeoiiiit, the lilaiiitill's"
cashier met I!., defendants' linaneial direetdf, in
'rdi'diitd, td discuss the niattev, and made an
ai langenunt v liiili it aiijieared 1!. was aware
the cashier had to ri'iidit td his hoard for aniii'd-
val, and which he told li. he had no itolilit
Would 111' carried out : Held, that the cashier's
verlial report to thu lilaiiitill's' hoard on his
return, t«(i days after, was admissilile as part
of the res gcsta', as a declaration aceoinpaiiv iiig
an act. ('uiinm rcinl limih v. (Irml Wislirii
/,'„lhn,,i (■„., '2-2Q. ]i. •_':« ; •_' K. & A. •_%■).
The execution of a release of doWer lieiiig
ilis]iuted, the defend.'iiit iiroved the handwriting
of !'. , the snliseriliiiig witness, w hd was de.id
.Semlile, that the iiieiiKirial of the release, dated
the day after it, m ith the atlidavit of execution
made liy 1'., was admissilile, as part of the res
gesta', and as shewing that I', had sworn to the
execution. A'lwi- v. Cii/f/i r, '2~ (). H, iJTO.
^^'here, to let in secondary evidence of a hoiid,
the jittoriicy of the ohligor was called, and U]i(iii
licing shewn letters writtealiy himself in which
a ileed and IhiiiiI were referred to, and the con-
tents of the I idiid stated, he swore that he had
no recollection whatever of these instruments,
although he had no doiiht from re.'idint.' the let-
ters tifat such liond existed ; the court refused
to receive such letters as evidence of an admis-
sion liy the oliligor's agent of the existence of
the lioiid, thev not liciug part of the ris gesta'.
Chirb V. J.i/i/,, ,") Chy. .Sti.'}.
See X/idir V, J)i- Saliilnrri) Xiiri'/dlkiii (.'•)., 18
(,). r.. .-.41, p. l-_>!»!).
.\.\1. Kvmr.NcK (IK C'liAHAi rri).
\V
lere in an action on
•.Vl"'oMuss„ryn„u,,|,j
joined, thcdefemlant ii ■ • "'"""''"'li
defendant jilcads no eoiisulcratidu
.... _ ""^'imiU'iKhtl,,!
md it is not iiec.svuv I,,,- tl, I
'■Ml
issue
eonsideralioi
plaiutill' to prove the coiisidci-.iiiiii, m ||^
instance. Sullirrliind v. I'litlirsmi, .M. 'I'dc,
Where in deht on an indeiiiiiity li,ii„i ,;, ■
defendant pleaded that if the lilaiutilf m,i, j "f
nilied she « as daniiiilied of her (hm, w i-(inV "'ii
the plaintiir took issue on the plc:i, ^ini .u .j
assign any lireach ; and at the tri.il, the i,l:,j|,J||
not oll'ering any evidence to prove tii;u >||. 1
daniiiilied, was nonsuited (in a iiiiiti.,|i i„
new trial, on the ground that the i>MHH,i" '
the defeiKJants, and that they shoiiM li;m.l,,'.",,j,
the iioiLsuit was held to lie riLrhl. //.i,,,;//"
Dai-Uil III., '2 i). li. i:!7.
AVliere defendant pleaded a Juil^iiijut n-oirJ
ered liy him in a former action mi i|n' sai^, ,,fj
niises, to \\hich the lilaiulill' I'eplif,!, tli:it thj
judglneiii was not I'ecoVei-ed oii tlu' .<:,im.. i,^J
mi.ses, it was held that tlu' issue «.i.< mi
daiit, and he must [irovc the fi.ina.r I'wnvcrvJ
OWrHI il III. V. /.((';//(/, ;{ g. 1',. 70.
Where an endorsee suing the eiiilei-scni|,„]ij
note produces it at the trial from iiis dwiunj
tody, with defendant's eiidorseiiieiit tliiTdni ^
celled, not as if l>y any accident, hut in tlitiiim
uiie(piivoeal inanner, some I'Xpliiiiatiiui must I
given to the jury for re.jectiiig the iiUciviia'tli^
the note hud heeli satisliul hy (lefeiidant «l|,j
uaine is thus cancelled. I'irl v. Kiiiii«mill
B. .Sii4.
In e.jectnient, it was iirovcd ,-it tln' tn;il f
1S47, that A. was last seen in the innvinoi
Deecinher, 18-7, and was never afterwai'ilshcuJ
of. A ti. fa. against A.'s lands «as iilari'iliutiJ
slieriir's hands on the 1,'itli .liilv, ls;i;!, t.stel
the --".tth dune, 18:W. The heir' df .\. Kmuii^
I'.jeetment against the purchaser at tiu' .■ijitiiif
sale, and attempted to recover iipun the vin
that, after twenty-two years had elapscil .*niic J
was last heard of, the iiresuui]itiiiii tliat in-
not die till the expiration of the soveiith.vwrw^
, -^ r I , e • !• at an end; and that defendant iiiiist sJR'w th.it
In a.ssun.psit /or breach _ of pronuse of mar- ,,;,, „„^ ,,i^, till after the seventh v.ar; I
riage, the defendant is entitled to cross examine
the plaiutill "sown witness respecting the general
had character of the plaintitf. Mrdrninr v.
MiArlhin; .-) ( '. V. 4!»;}.
Where a party supporting a deed proves the
handwriting of a deceased witness in onler to
raise the presuinption of due execution, the
other party may shew the character of such wit-
ness as cornihorative of evidence tending to
shew that the deed was a forgery eoncoeted liy
him. ('Iiitmlnrlnin v. Ti/rriiiirr, 14 Chy. 181.
.Sue also Ix'o-ii' v. Ctn/li-i; 21 (j. H. 270.
XXII. PitdDrcTKiN .\Nii Admis.sion of
Kviiie:>ck.
1. Omit Pnihiinili.
"Where a vessel is seized as not heing British
built, under the 7 & 8 Will. HI. the claimant, in ; ',7,;t7i";e\",„„8 of proof "of fraud or „f thoreki
order to recover must prove that the vessel was , ^^ ,^f j,,^ oonipany to satisfy the juagm,
built at a British port. /^<',r v. A <m//, Tay. 19?. fj^^ ,,,^ ^,,^ defeudaiits, the iilaiatilf iuv
111 ejectment, the burilen of proof to shew that | obtained one return of uuUa hoiia. Jtntim
the statute 4 Will. IV. c. 1, s. 17, is inapiili- ! Wilcock; 11 0. P. 505.
'iit.-i
Held, that the plaiutill', not tiicdufciui.iiit. mk
shew when A. died. I)o( d. Ilii<i't'iiiiiit\.sifi4
4 tj. B. 510 ; atiirined in 8 Q. R •Jill.
Ill an action brought upmi a jiiilioy nt \
surance, defendants plcailed tile imn t'ulliliceJ
of the twelfth eonditioii of the luilii'V, wliifl
re([uired the certilicate of the nearest iiiagistial
iif the cause of the tire, iipun wliieli tlii' iihiiiitJ
took issue :- -Held, that the immf nf tin jill'
rested upon defendants, and the jilaiiitilf liavil
given prima facie proof of the fiilliliiiont nf f
condition was entitled to the verdict. l'kt\
Till O'uir DUtrirt Mill mil Fin /«.«. (V, !H',|
405.
In an action by a creditor ef a ItailwayCd
against a shareholder, it is not iitti'ssary thitj
ti. fa. (goods) should be returned nulla liiiiiJ IN
ill the counties through wliieh the r.iihvay rd
uoi
EVIDENCE.
1102
ic ilulfliiluiit.
, in.
;i iiniiiussiiry nutvtlijl
isiil.Tiitioii, uimii wlii^Jj
iilaiit imisi iiuiiwidtLJ
lint lHTr.s>;ll V fi,r 111,!
llLsiiU'lMliilll ill til,, ijfjj
I'littrr.^uu, M.T.iiVnt.]
,11 iiiiUiiuiity liiiii.l tlijl
if till' liliiiitilV M ;i,m1.iii,.|
III' lll'l' own Wmili;, iUllM
m till' lilc:i, ;iii(l i|i,l|,,^
lit ttiu tri.il, tlu' i.liiiiitil
V til i>riivu tiiiit sluMiai
X'll nil a lllotiiili t,i[|
Hl tllllt till' In.SIU- \V;i.;,
D tlu'V ^lll(mMllilVl■ln■,^lIll
II hi; riglll. Ihiiiiilhiinf
t • I
•iiilocl a ]iiil,'iiijnt rw.iv^
!■ ai-tiiill nil tliu >;lliiL, [
laiiititf vi.'iiliuil, t!i:ii thJ
iVi'roil nil tlie s:.iiif ^l^J
I till.' i.ssiu' \Mis nil .Itlmf
live till.; Inniifi' ivo>vtrvI
iuiiiU till' I'liddi'sir u|i..iiJ
le trial Irmii liis iiwiun
ciiilnrsfiui'iit tluTiiiiiiuj
,' aoi-iilont, Imt iii tWim^l
iiiiiie rxplaiiiitiiiii must 1
tijoi'tinti till' iuliTi'iia'tlai
;isliiil iiy cli'liMi(l;iiit \iii.i||
I. /'m7 v. Kilrlvilill,'
as )u'n\iMl at till' trill
It M'vn ill till' luiiviihi
las iifvi'l' at'tervvarilshiMri
s lamls was |iliiri'il inth
i:Uli .Inly, ISIW, ti
rill,' lirir 111 A. liri'iiibl
iiiri'liasi'i- at the .■<liiTill
ri'i'iivii' uiiHii till' gi-i'Uii
cai'.s liail I'liiiisiil.-iiiw.'
ii'i'.'^iiiiilitiiiii tliiit Ik- 'iii
II nt till' siivi'iitli yu.irwl
t'l'iulaiit must slii'Htli;itl
till' si'Vi'iitli yi'iir; Imt.-
tf, lint tlli'ili'lill'liut. lll»i
)()l- ll. Ilifil'i-lllilllwSlf'llJl
II 8 (l B. -".11.
it uiinli a |iiilicy nf
li'aik'il till' iioii-l'iillikei
inll nf till' V'llii'y, «lii^
of till' iii'ari'st iii;igi>tia
iipnii wliii'h till' iil;iiiiti
at till- pi-iii't' "I till I'l
1, ami till' iil:iiiititflmi<
f nf tlu; fiillilmeiit lit
_ tn the vci'ilict. l'hlt\
tiuil Fin- /"•<■. (V,!U'.
;roilitor cf a Railway C(^
it 18 not uei'i'ssary tli.i^
I'L'tunieilimlhilwiulr
tU wliiL'litlier,iilHayriu
(if fraiulnrof there W
, to satisfy the jiuigm^
its, the iilaiutiff hivi
f nulla bua.^ ./'»»"iM
1 1 .III Ai"tii>i> f>n a jmlLjini'iit olit.iiiicil liy |>I.iiii- '
J ' jiijt lU'foiiil lilt ill tlio I'liiti'il St.-iti'.s, ili'-
. j'lJ'ijploali'l. I. 'I'liat the iii.li,'iii'.'iit hail licuii
I""- pveri'l fur liioiify allc;,'iil to liavi' lii'iii [laiil
iriilaiiitirt '"'■ ^'''^ "'"' "' 'l"''''ii''"'i'^ ; ••'"' tli'''t
Ik WIS lie^i''' iiuli'l'tol as allctrcil ; L'. Payiiiiiit
|?'l„^,' j,„lgiiiiiit : Hi'lil, .1. Wil.siiii, .).,'(li.Hs.,
I , ' .|i„ oiiiis iirnliaiiili \v.i.'4 u|inii ili'fi'iiilaiit.
|}liV/V. /VM-m/M../-, 17 1'. r. HOC.
Ti) III ai'tii'ii for wiiik aiiil laliiMir. ili'l'.iiilaiits
■ I iiliil a rili''>si' iiiuliT .si'al, iiiaUiii;^' jirnfirt.
t\l' iilaiiititl ii'l'li^''! t'lat tin- ri'lcasi' was ilc-
I., . ,.,j .p, ,111 1'si'i'iiw, tn lit; Vdiil on iiiiii-]iayuii'iit
11 '.lifiii'laiit^ "' l-'-'*^'' ^'Y ''i <-'>'''t'"i> 'I'ly ; also,
|l,',','li.|Vii,laiits iliil lint pay: Holil, tliat ilf-
|[ ,i,i.ii,ts must prnvf till' I'xci-iitinii of tlir agri'i-
I ,„t ainl that it w.is not iii'i'i'ssary for the
I hiiitilft" ■"'"'" •''*' •-•oiiilitidiial ili'livory as ]iart
liiicvse l.i'llit y. i\'iii,i/.if(ir/: ninl Liihu I'.r'u
1 statute wii.1 l>iis9e(l reversing the attaiiulcr
Lf \ S.. .-Hi'l takiiiL' aw.iy the fnrffitiire wroiii/Ut
L.,Ll,v .<ii far as it iiiiLrht aU'ert |iortiniis of this
Lititi' iii't ahvuly ileelareil forleiteil ami sold
Jcr autliiirity nf law, ami vesting siieli estate
,1,^^, „|i,i I'eiiM elaiiii it if he li.iil not lieeii
ttaiiitiil ! prnviiled always, that iintliiii^' in the
i; t -lii'iilil ali'i'i-t any prnjierty sold or eoiiveyed
f. (1^, eiiiiiuiissioiiei'S i>( forfeited estates, iVe.
itlie preanihle, it was reeited that a part of
(istatc liiil hreii taken upon im|iiisitioii, and
kizt'lhv tlieiinwii : Held, that the iilaintill's,
jjjiiiiiiJ. ill fjci'tiiieiit as devisees of A. .S., iiiiist
ihiw, ,is part nf their ease in the lirst instaiieo,
lut thi' lamls I laiiiled were not part of those
jrititiil ami ■•^olil- ^^"'' 'I- •S'''''"'< '' "'• v.
fir,,,.,,/, H U !'■ ''•"'^^•
J f -ili'iin for a Imi-so. I'lea, that the lior.se
tiulie lii'i'se iif the defendant and not of the
JjilitiS' a.s alleged, and issne thereon ; -Held,
Jut tile plaintill' was entitled to begin. Si rilli'
(./V.'.'Sy. B. 2;il.
I (111 ;iii aiiplitatinn for a certiorari to remove a
ivii'tiiiii of one .1. H. for selling liquor without
Ifaiise ;- Helil, that on sueli a charge, it was
Ir ili'fciiilaut to shew his license, and not for
ke iiifi rmaiit to negative its existence. In n
|iiT'//, '.'8 (,>. B. :>.")rt.
liin-ganlto lands in the ooenpatinn of the
luiis, it is uniii'cess iry, in the proceedings of
iecmimissiiiuers under the statutes "J Vict. c.
i, ,iiiil 12 Viot. c. it, or hy express evidence, to
jiiitivi' the t'xi'optiniis speeitied ill the latter of
lesi' statutes. I'lijnut v. S/roii'i, I < 'hy. 3!t'J.
I A lessee of the crown being in arrear for rent.
pigiieil his interest to another, t iking a lioiid
II reioiivey oiiedialf thereof, on payment of
lllitheaiminnt advanced, within a year, which
InicJuiviiii; lieeii allowed tn elapse without jiay
kitiii this sum, the assignei; refused to ciiiivey,
Itpiig that the transactinn was a eniiditional
lie. rimii a hill tiled to redeem, the court held
[at uiiiliT these circumstances the transaction
lis iiriiiia facie one of mortgage, ami that the
■Silt iiroving it to he a sale devolved upon the
nvattrihiitiiig that character to the •^rausao-
Itiun. Ihj^iirH V. Pliiini>.-<, {) Chy. 4'27.
I In May, KSt'iO, a purchivse was made liy parol
"a liii of laml, in addition to three other lots
leriously Ixiught by the siuue purchaser from
e sanie vemlor, and the purchaser went into
possession and erected thereon a cnach-hoiiso
and St ilile, and the other portion of it wis Used
as a I iwii to the liiiuse which he h id eri'rti'd oii
the otlu'i lots whii'li hid beeii duly conveyi'd to
him. Ill the year JSilO, ami aL'iin in ISti:!, the
|iiiri'li:iscr rcpe.itcdly .iski'd for .i deed, ollciing to
give the vendor his note for the piilihasi' imiiiiy,
lint which he refiisid to aicept. A bill for s|ie-
cilic ]K'rforiii Mice w.is subseipiently tiled by the
veiiiliir ; Held, that the piirchiscr, liy his con-
duct, had w. lived his right to coniiiel the \ eiidor
to iiKike out a good title, but that he was at
liberty tn shew that the vendor had no title, in
which CISC he would be entitled to g.'t rid of his
ciintr.ict ; the onus of prnnf under the circum-
stances being shifted from the vendor to the
purch iser. /)> nl^mi v. Fiilh r, 10 ( 'hy. f'.IS.
Where a bill is liled by a priv.ite individiiil to
relieal letters |iatent on the griiiind of error, the
onus nf [iroof is on the pl.iintitl', though it may
to sonic extent involve iiroof of a negative.
Mi-liitili'' y- '/'ll' Alliiriifii-d.'iiiriif, 14 Chy. SI).
Till' ileeree directed a reference tn the master
at Br.intfnrd to take an account of the amount
due upon the niortgige in ipiestioii. The only
evidence before the master, besiiles \\ liat was
used .it the lii;aring of the cause, was the allida-
vit of the i)er.sonal reprcseiit.itive of the mort-
g.igce, which stated that he believed the whole
aimuint to be due. All .liipcal from the iii ister's
report linding the whole aiiinunt due \i,is al-
lowed. Seinble, that the onus of proof under
such a reference rests upon the hnlilcr of the
mortgage. KllUilly. Huiitir, loCliy. (UO.
^Kit} XiirllKcoody. Kiitliti'j, 18 Chy. filH, p. l.'i.'iS.
'1. IfcfiTanri/.
IMaintitV sued a railway coinp.iiiy for the loss
of his trunk, which he alleged contaiiii'd several
valuable pajiers, and among them the lease of a
farm fmm his father to himself. l)efendants
resisted his claim as fraudulent, denying that
they had ever received the trunk, and g.ive
strong evidence to sujiport their defence. 'I'licy
then olVered to prove (as tending further to shew
the dishonesty of the claim) that this f.irm had
been the subject of a suit in Chancery, in wliii'h
it was decreed that the plaintiff's father held the
laml only as agent foraiiother, and should convey
tn him ; and that the plaintiff was aware of the
fact, having been examined as a w itiiess in the
(■ase : Held, that such evidence was rightly
received. '/'/ihiiki.-i y. ili'dtt Wi^tiVn /'. IT. Cu.,
U(^ 15. 38! >.
Plaintiff was snii-iii-law of on '.1. |)., i.iid lived
in the same house, using half the s.iuie shop, and
it was clearly shewn that the plaintiff ami .1. 1).
had made cert.iin arraiigenieiits with the express
object of putting .1. D.'s property out of reach
of certain creditors. Part of the evideiic ad-
mitted tor this puriiose was a settlenieiit of .1.
|). 's real estate prior to plaintiff's ni'irri igc with
his daughter. In an action to try the title to
certain goods alleged to hive been imrehased by
plaintiff' at a sherilV's sale of .1. |), 's goods, it
appeared that the purchase nioiiey paid by [ilain-
■ tiff had been credited to him out of sums payable
by plaintiff" to another estate, and in fact went
in relief of the claims on .1. 1). : — Held, 1. that
evidence of the settlement was admissible as
being material to the subject matter in disjtute ;
«!
1403
EVIDENCE.
•J. that till' jury riylitlv fimiid :ij,'aiiist the iilain
titlH tl.iiiii. r.-.//(-'v. i/im/rii, 7 ('. I'. .'r)4.
I'risiiiK'r liuiii^' iiidic'toil fur tliu iiiunkT of miu
M., tlu^ [iiiiR'i|Piil witiii'ss for the eiowii Mtatuil
tliat till' criiiit' was I'limiiiitti'il on the tirst nf
Dui'i'iulhi', IS.'ill, (111 ;i liiiilf,'i' (ivlT the rivtT hiiii,
.■iiiil that thr inisiPiuT ,uiil oiii' S. (who liail liucii
jiruviciiisly ti'ii'il and iUiiuitti'il) tliiew II. iiviT
thu [laiaiiot nf tlu' liiiilui' into tliu liver. 'I'lie
iciiiiisil t'(ir the [irisiiiuT then iini|iiisiMl to prove
liy one l>. tliat S. was at his plaee, lifty niik's
oil', on tliat eveninj,', Imt tlie Ksiriicil jililge re-
jeete<l the e\iik>nre, saying that S. might lie
oalUd, and if contradicted, nli^dlt lie continued
liy other testimony. S. was ealk'd, and swore
that lie was not ]nvsent at tlie time, Imt he not
being contradicted, l>. was imt exainiiieil ; —
Hekl, that the iircseiiee of S. was a fact material
to the eiii|uiry, and that D. therefore should
have lieeli admitted when tendered ; and, the
jirisoner liaviiig lieeii found guilty, a new tri.il
was ordered. Itujiint v. lifniru, '1\ i}. 15. '.i'M.
l>ower. Defendant pleaded that hy deed of tlie
'21st of .Vngiist, \S'A~, the hnshaiid conveyed tlie
land toT. ('., and that on the l-'.'lnl of .Vprii, 1S,".(I,
the ilemandant l>y deed jointly executed witii
her husband, released her ilower to '!'. ('. , who
conveyed to defendant ; anil on this issue was
joined. The release of the "J.Srd of April, was a
deed poll of release of dower, for a nominal eon-
siileration, exeeutud by demamlaiit by mark ; and
the only subscribing witncs.^' being the defendant,
it had lieeli deeideil that it could not be proved
by evidence of his liandwriting ; See Clark r.
Stevenson "J".' Q, H. '>'!}. The defendant there-
fore proved the execution of the deed of the 21st
of August, 18;{7, which was executed by the
cleniandant, though she was no party to it, and
it contained no release of ikiwer. A ucrtiticate
of two justices was endor.scil, dated '2nd of March,
ISoO, that the deiiiaudant hail appeared before
them, and duly burred her dower ; and one of
them proved that .she was examined, ccecuted
the deed, and receiveil §10. T. ('., the grantee,
jiroved that she agreed to bar her dower, and
that he took her to the justices for that pur-
pose, but finding thatthe proceeding before them
was ineffectual, he had the release of the I'.Srd of
April, 18.")(). ]iroi)areil, and sent it to her by de-
fendant, with a note for .*!40, which lie hekl
against her husband, to be kejit if the release was
executed, otherwise returned; and that defeii-
ilant brought back to him the release app irently
executed, imt not the note. The evidence was
received, (though oltjected to) as tending to
strengthen the probability that the release was
really executed ; it being also sworn in eontirma-
tion, that the demand nt's name to the release
was written by her husband : that in May fol-
lowing, the deiiia' ^^ ild witness that ilefen-
d.aut hail been to her to sign a paper for T. C,
wdiich she had signed ; and that the next day
she told defendant she had no right there. The
jury found for defendant. l>ra{)er, 0. J., doubted
■wliether there was sutiieient to go to the jury as
evidence of the execution of the release ; but,
Held, Morrison, .J., eoncurring, that defendant
being obliged to resort in eU'eet to secondary evi-
dence, was bound to call the demandant, who
coukl have given the best, notwithstanding her
adverse interest ; and that the verdict must
therefore be set aside. Morrison, J., thought
the evidence objected to inadmissible, as benig
1 I'll I
llagarty, .1.
I"'"l"i-lyre.w,ii|
llM- ..til * ■
irrelevant to th.^ issue, llagarty, .1., ,11.,, , ,
hokling that tiie evidence was ■ ' "'
as forming part of the histmy of tlu-
transacti 111, and tending to shew ulivtl,.,
was lor .1 iiominal consideration unK in.i |
form implying a iireyious coiivcyaiKy ,',f't|,'^,'"''
which might otlii'iwisi' have givcii ri.s
and that defendant Was Hot I
•isu tii
"I'l tliatl
i'liiii>sii,lJ
"".
picioii ; anil tliat ileteiulaiit was Hot hdiiiult 'i
the deinandant. CIdrf: v. S/rrmvni, -.^ o \> ,1,''| i
111 .111 action by the idaintill' for \v,y,., ,,||,, ,
as a liimbcrmaii, the ilisputi- hciu;.; Hh.tlurt'i
person hiring him was the dclVihiant's,.,,,,,,,''
the ik'fcndaiit pleaded a set-oti', and nt tluM l'
attempted to }Udve under it that tliv ji],, 1
iiad received goods from the stijiv at dn'sli'n ■ '
—Meld, that it was allowalilc to iiiuvi' l,v!|'!'
sons working with the plaiiitill', that tla'vU
iieeii paid by the defendant on a|i|iliati'„ii .«
him ; and that in suits brought hy tlicm .i^miihI
him, he had paid money into court ; ii ^
the judgments in such suits Weiv als(
though unnecessary. Slrinni v ,'
H. -21.
( >ii the trial of an action on a promissory imt. I
brought liy the plaiiititi's, a hanking c(irim'r;iti„u'l
and to which defeinhuits pleaded iisiny, oiiiMstJ
iiig in the plaintill's making the note iiaviuVjJ
a distance from the jilace oi discount, and tlnnli?
securing a larger rate of interest, in tiic shajnX
commission, than they were legally ciititli'd tj
the plaintill's' agent was asked liy tlie iltliiiiLintif
in cross-examination, whether duriiii,' tla'tim
he was in 1'. itlie place of discinint) ho luil
rected or caused any other note to he iniuleinri
able at any other place than 1'. : -Held, tliattiii
ipiestiiui was admi.ssilile. T/w Jiunk nf I/,,;,/,,,"
V. .S'co^^ it (it., 17 V. V. SoS.
3. Duly of Jtubje* im to JiircUunn timl ltf}nth,\
Evtilinrv.
'When a defence is specially pleailod, tliocfiii(
will not, with the consent of the parties, ,i4[
evidence of such defence under the gem-ral issuij
Loiiijirort/i V. McKiiij ft ul., (i O. S. U'J.
Seinblc, that the precise time at wliidi, um
I a trial, particular evidence may he intioiliifej
j is for the judge exclusively to deteriiiiiie. A'j
I It does not necessarily follcnv, that WiiiisetU
plaintiff's w^itness when recalled tn ivl.nt tj
phiintitf's evidence, makes statciiioiits wliidi
fact amount to a new case for the plaintiff, thj
judge must therefore refuse to alhiw siuli stall
inents to go to the jury. Di-rliit v. (.'/vxfrij
Q. B. 398.
In an action for insurance upon a vi'ssel iiiulJ
the usual interim receipt, the plaintiff, ,it til
trial, claimed <as owner under a sale nf ,inei|iiilj
of redemption under execution, which 'liejiuli
hekl to jiass no interest ; and he wa thq
allowed to prove his interest as mortgaf
Upon a motion for nonsuit upon that grmmil :l
Hekl, that it was a matter in the discretiiinj
the judge at Nisi Prius, to jierinit such aval
anee in line of proof, and the defendants J
shewi'ig themselves damnified hy the t.xcrcis* j
this discretion, a nonsuit was refused. Scotrkt^
V. Eijnitahk Fire iiinuranrc Co., 8 0. 1'. 41.5.
In an action of libel for publication inai:
paper, the jJaintifif 's counsel proved the pad
:i^;;irty, .1., ilissim,,
was \i|-nii.i'lyri.'.in,,ij
liistciry III' tli(^ »l,„ij
islicw wliytliiMvli.isei
L'lMtillU lillly, ilM4llu|
L'iiiivi'y:uu'tMifthiM'M I
iivi; i^ivcii risi: tu .ns.!
b was Hut ImhiihI tiirjUl
SI I'fi II SI I II, 'H {y li.'Jn) I
ill! ill' t'liv wa^'i'svirimll
iiitc liciii;^ wliitlH-nliej
tllf ili'l't'iiil, lilt's ;iL;ti:i)j
iot-ntr, iuiil at tliclri,i{l
.■!■ it that till' [iliiMijI
tllf stun.' at llii'sli;iiitvil
walilf tu iM'iivi' liviifrJ
plaiutilV, that tlRylijI
iilant uii aii|ilii;iti..ii tol
iriiiiiiht liy tlu-iu a^uiistl
y iiitii cimrt ; ami tlntl
lits wt'rt' also aihuissiUJ
Shirmi v. Si'nit, •<,; I J
ion (Ml a \)riiiiussiiryniite,l
s, iv liankiiiy: uiiqiiiratiiiii,!
s jik-ailfil usury, niii>K4
<.'i\\)i thu iiuti' )i;iy:iWfaJ
l; iii iliscuuiit, auil thiTilij
t iiiti'ivst, in till' sliiijiK^
woiv k%'ally uutitli'il tJ
i aski'il liy tliL' ih'luiiilaiitjr
whether iluriuy tW'tiniJ
i^e (il ilisoiiuut! lio lu'lilil
thui' liiitu tu he ni;iiWii:w|
than 1'. : -Ik'M, tliattin
e. Till' liiiiik ni Mmici
358.
'(( IliriifiiKj mill Itrjefliiijl
\iili<iiri'.
Lecially iik>aileil, tlioouil
,unt of the parties, ailnil
[ue uinkr the general mi
I III., (1 O. S. 149.
[•ocise time at wliieli, uim
ieiico may he iiitri»lu«
livuly to ileterniine. ft.
liy follow, tliatheoaiisctlJ
lion rei;alleil to rel;;it <i
lakes statements wiiiAl
1 case for the vlaintiti, ttf
Lfnsc to allow aiiclisurf
liry. Dfrl'in v. (,Vu'fof,|
Irauee upon a vessel luuU
Tjipt, the plaintill', at IB
• untkr a sale of an ciiui^
xeention, whieli 'lie W
brest ; ami he wa.s th^
. interest as nwm^
isuit n\)iin tlmt grmiuil;'
jiatter in the iliscretwnl
Iu8, to \ierniit such a vs
1 au<l the ilefeiulants
Liiniiieil Viy the excmsej
lilt was refused. licMi^
|«»r,'ro.,8(U'.4i:..
lforimhlicatioiiinaiiei<
I counsel proved the 1*3
H05
KVIDKNCE.
140G
■ jii^j till' |>uliliratiiiii, lint ilid nut lik' it or ' Imt, Held, that the |i(iiiit lii'ianic iiniiiatiTial
' 1 tlie artiele I'untaining the allegeil liliil. when they wore aftiTwanU |ii'ovoil in accurilaiiec
Itiiuluit's euun.sel ojieniil lii.s case, anil saiil ' with it ; ainl that it nmst In' assnnied that it
i uiiilil eall no witnesses. 'I'lu' jilaintill's was not intemlnl to aililiicc the utlior eviilciicu.
lii'f
I ^ttiwltlien inuvi'il to have the jiajier read and
Ll'il wiiieli the learned jndije allowed, reserving
II 'tiitlie ilefeiidant to move to enter a lion-
I '■( if iiri-')i'ilii".l '" '•<'''"'' /iriirlin-, the iilaintill'
r^!J,'i,„'t entitled to read tiie paiier : ll>ld, that
Itk.fViiU'Uee ull'ered was not adnnssilile, exeeiit
ii'the diseretioii of the jndge trying tiie cause.
I„„l lUiiiisint «;'** tlii'relore ordered.
( 'l'ii:<.s V.
4. /n li' /ill/.
Till' k'SstT of the jilaintill' su|iported liis title
llvuleeil, in eunsideration of love and alleetion.
I [radio
was not intended to addiiee the other evidciicu.
liiijiiiit v. Iliiiiiilliiii, ll'iC. I'. ;{40.
In ejeetineiit upon ti slierilV's deed, the jilain-
till' |irodiii'i'd thi^ original jndgment, luit nimn
its heing olijeeted that it Was not st linped, he
withdrew it hy leave of the court, and rested
his ease n|ion tiie ti. fa. lands : llild, tli.it the
judgment having lieen w ithdr.iw n .is cvideiue liy
leave of the court, nmst lie considered as if it
had never liecn oll'ered. Scmhle, tin' dcfeiidaiit's
Jiroiicr course, if he desired to shew the inv.ili-
tlity of the judgment, and the execution issued
under it, w.is to have given it in evidence him-
self. Iliilsiuii V. Iliii/lisiiii, \- {'. v. -MW.
, Where in an action for goods sold ;ind de-
IW'didaiit I'l'"^''''' !* snhsLMiiient deed Ironi the j livoi-t.,!, |,l,.,iiitiil' made out a iirinia f.icic caso
;„ty for a valuahk consideration, and ini- j through his clerk, who jirovd a delivery of the
liie lirstdced as voluntary, '{'he (ilaiii- ' i,,„„|s'; .ind the )ironiise to pay on rei|Uest"iiiiiilied
tiiitlKU nll'ereil to prove a real consideration for j therefrom was rcpclhil liy d.'Veiid.iiit, who stated
tb lirst deed heyoml what was exiire.sscd in it. , .^ sjiccial contract varying frmn that implied : -
Tfovvideuee was rejected as going into a new j |i,,i,i_ that the plaintill was ai'mi.ssililc as a wit-
tasL'ilmt, Held, that it might have been re- , ,|^,^^ to reply to the new ea.^e s-;, up l.v defendant,
Jveii. tlie principk that the phiintitl should g<. ] .^,„i^ .Seinlil'c, he coiihl no, he excln.ied as a wit-
jnto Hi« «hiile cise at oiiee not admitti^ng (it mj^s, i,y reason of his ])rcsenec in court during
the examination of his clerk. MrFniiniii y.
M,ir/!ii, -A i'. l>. (14.
mcbastriet applieatiim in cjeetniciit. J)iir d.
lidirrfNic (■' "'C- V. Sliilb-r, 5 Q. 15. 34(i.
Tlietliwirv of the defeiieu in an indictment for
jranier, \va.s that the death was caused liy the
IftiinimimeiUioii of small pox virus hy Dr. .M.,
flioattfudeil the dceeaaed, and one of the wit-
tjitslur the defence explained how the ('oiitiv-
ionwiild he guarded against. Dr. M. liad not
ahisoNaiiiinatiou in chief or eross-exuininatioii
» ;isked anything (m this subject :- -Held,
Jut 111' was properly allowed to be called in
Itflv, til st.ite what precautions had been taken
Ivliiinti) guard against the infection. Riijbui
Vinnkm 1111(1 (<'nitiV!<, '2^^ (.". P. 143.
1 The prisuiier's witness hiiving stated that death
Irjgcaiised hy two blows from a, stick of certain
imtnsiiins ;— Held, that a medical witness pre-
ivusly exauiiiied for the crown, was properly
told to he recalled to state that in his opinion
be injuries fmiiul on the body could not have
(eDsoocoaaioiied. Jfii/iiiav.Joiii'n, 28 Q. \i. 41().
hVliire a party upon whom the onus of proof
s [iriiiliices a receipt before the master, or other
Kifof anature generally conclusive, and closes
In ej(!ctnient, thi^ jilaintitl' cl.iimed under the
heir of B, , who died in IS'JIi, leaving a will,
which was shewn to be in defendant's possession,
who declined to produce on notice. Two memo-
rials were then oll'ered as secondary evidence,
but rejected on the ground that they wert; n()t
shewn to have been registered by any one con-
nected with the suit. It was afterwards proved
that a partition deed had been executed ill
1848, between the four sons of H., by which the
land in (piestion went to I., under whom defen-
dant claimed ; and the meinorial of the will pnr-
jiorted to be executed by S,, another of the four
sons as a devisee : -Held, that the memorials
irlii'ti ^'H(/('/v(/ were rightly rejected for the reason
given, though they would have been admissible
after the subseiiueiit evidence ; but as they were
not then again offered, and the plaintiff's case
was one not to be favoured, the court refused to
interfere. Ilnyhall v. Slii'/i/ianl, '2'i Q. H. 53G.
When collateral issues arise out of comparison
of handwriting, and evidence in rolatimi to them
evidence, amF the other side produces testi- 1 '>"<;""»«» admissible at a stage of the cause when
my tending to shake this evidence, further 1 »* ^*"»l'l otherwise be excluded, such evidence
liileiici' ill support should be allowed to be pro-
hceJ, thiiugli in strictness it may be such iis
ight have been produced in Uie first instance.
Iw/f/v. ,l/cC'(()i;i, 1 Chy. Clianib. 88. — listen.
5. Otiii'r Canes.
lAtatrial for murder, the prisoner's counsel
)8edto prove hy witness his own deposition
I the iuiiuest, and to shew by other witnesses
kit coil tiiined a true statement of his evidence,
Bough the witness alleged it to be incorrect.
K learned judge ruled that the coroner must
Icalled to prove the deposition. He was after-
Fila called to prove them, ami the evidence
lore offered was not again tendered. Semble,
|t the ruling ;is to proof of the depositions was
should be treated as applicable to the caae gen-
erally, when it properly applies to it. lioi/al
L'aniulidn Bank v. Jirowii et al., 27 Q. B. 41.
XXIII. CoNTK.\ui( TOKY Evidence.
Where a witness Iwiing called to prove the
])laintiff's case, persists in making positive,
though very improbalde statements, disproving
it, the court, in the absence of any other wit-
ness, will not aUow the CiOse to go to the jury.
Macaulay, J., dubitante. Vinri')il v. Sjiniijite,
3 Q. B. 28.3. See also Barlur v. Arm.ttromj, «
U. S. .543 ; Lam- v. Jnrris, 5 Q. B. 127 ; Mickle
v. Oliver, 1 1 (!. P. 3G3.
Ejectment on a mortgage. The defendants
pleaded usury ; and they produced two papers
they having been taken before a coroner ; I purporting to be copies of fetters written by the
' i
Pf.' ' K^i
' "TTT
1407
EVinENCK.
Uii\|
llic.it^'.iL'iif til the i.laiiitilV (tlic iiiMitj,';i).'t't'), im ' fair draliiii,' aii.l lint iif forffitiir.'. ;;;,v,. ,) ,
ti'iKliii;; til shew tli;it tlicy ucre n'plics iiiailc liy j ivlift'. Ciiiiiiriniy. Jlnriilniit, I'lT'liy dn'^''*''
Till' cuNtoimT i>t" a liaiik i'ival.(
tin' I I^.'.iiior t(i litters wrilti'ii liv tlii' iilaiiitilf
wiiirli wrvv in-iiiliuiil ; ami tlii'V iiliiil U|iiiii tin-
wlinic I'liirospiiiiili'iin' as iiiakiiit,' mit ilraiiy a
lisiiriiiiis liirnaiii. 'I'lu' iil.tintill' waM cillnl ami
HUuii'llial 111' liail iii'MT i( i'('i\i(l till' li'ttris of
\\ liirll tli>' ili'trliilantH |>l'iili'H.si'il ti> |il'iiilii('>' ciijiit'S,
iiml tliat llii'ir \\a.s mi ii.siirv in tlii' iiiint^atji'
traiisartiim : llclil, tiiat it slumlil iii'Vcitluli'Ms
liaM' liii II lit't til till' jury tn say wliitliir tiny
dill lint lii'lli'Vi', limii till' plaiiititl's own littirs,
that siuli aiiswi'is liail lici'ii rcciivi'il as tlu' ilcti'ii-
(laiits ri lii'il ii|inii : ami if su, wlutlu i- on tlir
wlitilo c'iirrt's]iiiiiik'iii'i' tlu'ii' was siilliciiiit piiinl
(if usury. Mah- w r„/,i,/„!., MMJ. It. :!'.'l.
Mjritimiit fur liit.s l."i, l;i, ami iimtli li.ilf of
\'2. in till' "Jml i'iiiu't'.s.-.iiiu of Samlwii'h. 'I'lii'
ilt'fi miant, in liis imtii't' of titli', licsiili.s liiiiyiiij^
till' rialniant's titli'. I'laininl titli' in liini.si'h as
tlii'ir truant. 'I'lir iiLiiiitiUs, umUr this iintiii'
(if ili'ii'iiif, rlaiim li that tlii' ilililiilaiit w a.s thcrc-
liy ilili.n nil finiii ilisputin;: 'nir titli' as laml-
lnril, aiiil |iriiM'il a ri'i'ript fm niit in full tu tlii'
■'{Ist iif Maiili, I Mil. 'I'll i.s act inn \\asi'iiniim'ni'i.'il
• 111 till' lL>th iif (•rt.iliir, ISl'.i. 'I'hi' ili'Icmlant,
ill ri'iily, [irnvi'il his ti'iiani'v I'lininicni'til in May,
ami that nni' nf tlu' plaiiititl's, in .April ISCil,
V hill' visit'ni,' thi' fanii, I'xpn.ssi'il his satislartimi
as to its stati'. ami tnhl him lu' wislu'il him tu
remain on. 'i'lii' jury ha\ in;; fmiml fur tho plaiii-
titl's, ami that the iltli'mlant w.'is thi'ir af^rlit nil
till' pi'i'iiiisi's : lli'lil, (III iiiiitiiin fur a new trial,
th.'it till' (lirci't I'viili'iii'i' «if tlio I'lmitni'iii'i'incnt
(if the tonam'V in .Mav was oiititlcd tn ^ircatcr
ill its faviiiir
y till' ill'piisit nf tllir ,|i'I''u'''T|
It Hint tn ri'ali/1' till' siTiirity, the ilij,!,,,^ "J
that the ih'linsit luid luiii lii.idc tn.si, nr,, '^''"l
flltUlV ailv.-IIU'l'i, all nf «|ii,h ||:„| i,r,.|,,,.J|'| ''"J
till' ntlii'i'i's nf the liaiik, nii tl Iliirliin'l !, ' 'L
that the si'iurity was ri'ipiiK d ),y ||„. lyijl;'* 'tf
>;iv('ii liy the dilitnr tn sccuri' ,ii| his in.i,ii
iii'ss, p.-ist a,s wi'll as flit 111',., ,'md a iii,.|,„i,'' V,,.,
I'mlnr.si'd at tin' tiiiu' nl the il.i,,,sit „„ ,1 \
1 1 ■ 1 I 11 I " "M [111' tll,l
Vi'lnpc innt.Ullin^' till' dii'iis w,-(,, t,, ,1 r
ill'i'i't. 'I'hi! I'lUiit. in till' \i, w Ili;it tli,',i,,,","'''l
if inadi' as alli'^cd liy the i.aiij,, ,ja,, \\^j\
while if made fur the purp,,,,' statr,| |,\ , ■
di'litnr it Wiiulil have lieeu ill. ,,d, iiiailc ail ,
ill favniir nf the hank with en.,|s. /,',,, ^„'/ ,■'
iliiiii lUiiik' \. ('kiiiiiiii; l."t ( 'iiv. (I'_'7.
Where alireiieh nf an iiijinieii,,n ^'issiinnit
liy a sinj,de (K'liniicnt, and \\,is dniinl LvJl'
(li'feiiilaiit. and there was im eiiii-,,|ii,|.atn
deiiei', till' ennrt l\-fiis"d a iiintinii t
S/i irnr/ \. /'ii/iiiri/yun. ITCliv. I,"i|).
Where, after the decease nf (iiie nl (lie 111,(1 «
1 (if the peace liy whniii an exaiiiiii.'itinii Hast:ik,i
the ntlier. an nld man nf .•(cviiitxtlirir. ,.n.g
evideiii'c that he did imt n licet ;i|iil i||,f||,J
^ lielievc that the wife was exaiiiiiieil as the ntti
' licate stated, the enurt ;,'avc ercdit tn the ., nil
' eate mitwithstandiiiL; the i'\ idciice. /,'.,„„ii„,
I /•'/■(/.<(/', 17 Cliy. '_'(i7.
I Where witllessus directly cniiti'aili.t caelidtlnj
" ('"iiiiiiitl
■ 1 . ,, 1.-1 ^ 1 ^1 .inii I'M 1 the pi-esiiinptiiiii IS, lint that niic sne.ik.^ iil.,lJ
wi'i'dit than a receipt dated the .SOth n \ arch, 1 „. ',i,„, ,' 1,.,, ,• ,. , ,, ., I,' '">■'' I'H-ilJI
i- " i. 4. 1 i. /. ;; , I li- /; 1 .> / ■ 1 ''"'' '''n't nlie lias tnr^'ntteii tie ru'fliinstiii.ri
tnr rent uii tn i ate. ( hIIki 1 al. v. ((/', _ t . ! ... 1 ,1 ,• x. , ]•, n" , , ""^'"""''"kci
1, ,,- ' ■ i i'iih'-'<« the tacts directly repel siieli an a.s.siiiii|,ti„|
••;'■ •,..,,. . ; In investiyatiiigacharee iiistitiitiillivtlieoiiiii
W here parnl evidence is admussililc tn cniitrnl ] against a sulicitnr, and « hieli if est,il,|isheil«,iiiy
the legal nlieratinii of ii deed, mi cll'ect can he ' |i:tve iirnvcd nf a Vcrv grave iialiiiv. the nui]
given tn .such cvideiico if ciiiitradictDry, nr its | ,icteil nil the alinvc iirineiplc, and anei.tnltli
accuracy ia iiivolvod iii.ihmbt. Id //(('/''"c, L' snlicitnr's cxplaiiatimi nf the lact.s, altlu.ii h dii
t'liy. .")!»(). j tiiietly enlitradicted l>y the client.' Ii< 1; f„»;i
(hi an appeal frmii a ducrt'o nf the enurt lielow ] '/"' nintli r nf .1/. ('. ( 'inm run, ;i ( '|iy. ( 'lianilp, 'jol
fnr slieeilic pcrfnlin.incc nf a parnl cniitiact, it ■'^[iragge.
appeared that the dcfcmlant denied th.at there ; y\,,^t^r^ „!,„,, Id he careful imt tn attaoli tJ
was any enntract tnr sale, and alleged that the ' ,„„^,i, ^.^.j ,,t t„ „,al testimniiv 111 i.|i|i,Niti„n I
plaintill was 111 pnsse.ssinii, as tenant merely ..,.i,,^,„^.^ „,• f.^,,^^ .„„, i.i,..„„;stanas: /a„
and nut vendee ; the enntract as swnrii tn Iiy ! /;,•„;/■„ ]^ ('|,y (j,s|.
the plaintill "s witnesses, was lint the enntract ' ' '
alleged liv the will, and the cvideiiee of there I .Mthnilgh the rule is, that if the ilirisi I'l
liaving lii'i.'U anv enntract was cniitradietnry. I M'H'-'**"'" "*' ''"^'^ 'l;'!'*''"''** "It">-'^'tli'inii tlieen^
The learned judge wlin pnimiuiiced the decree ; *"' '"' K'^'*-'" t" <l"'i'i't tcstmiuiiy of emillidii
having intiinatiMl cmisiderahle dnuht as tn the ' witiies.scs, the enurt, as a riile, will a.lM|.t tlj
evidence, the decree was revcr.sed, and the hill ! hnding nt the master ; still, w linv the evidiiK
in the enurt lielnw nrdered tn he disiiii.ssed, hut 1 "• ''"' mortgagnr and mnrtgaL;ee as te,iiiiimii|i
under the circumstance.s withntit ensts. (ininl ' '"^'''f J'"'*^ '^ mortgage, whie;i had lieeii s.iti«li,
V. /Irairii, !,'{ Chv. -."><>. shniild he allnwed tn cnlitiniie a.s a eulLitri
,f ,, , ■,,■." , , ,, . security fnr sulisciiiU'iit indnrseineiits ainln;
If till' slierill s vendee verliallv ayree to ac- * r 1 1 1 i.i ^ 1 .1
. 4. I- it I i- t I 1 iKites lield liy the ninrtuaece, .iiiil tlie ni.irt;
ceiit iiaynieiit nt the rcdeiniitiiin iiioney tor land , 1111 n 1 T .1 1
I, ' ■' „ ' ,■ . •',. ., deed had lieeii allowed tn reiii.iiii III till li
sold tnr taxes pcrsniially at a distance trnni the ,1 . t 11 1 1 .1 .
. , * 1- "J -i. 1 ■ 1 i ii the mnrti'auee uiidiseliai\'i'i|, and the iiiurt;;
oimiity tnwn, in lieu nt its lieiiii: made to the ! 1 1 1 ° r ■ 1 '^ . .1 . .1
. • 1- 1 ■ 1 i.1 i. i.1 ■ ' had alsn retained lin.ssessinu nl tlie title
treasurer tnr liiin, and the owner acts on this 1 ., . ■ 1 1 n
. ,, ,, 1 11. 1 X J.1 the enurt coiibidered these eireiiiiistauiw
aLtreeineiit, the other cannot atten!i,ar(ls, to the , ■ ,• ■ i\ \- ^ ■ \ 1
" , . I- ■ ., , , • , I stniiiuly conlirinini; the direct ovnliiieenl
owner s lire udiee, reifuire the money to lie iiaid ; .*• . ■ . ., 1 ■ ,
c 1 ■ i '^ ii i. ' 1- y • i liKirtgagee, and revcrseil the ileeisuiii nl
tor linn to the treasurer, refuse to receive it ; i 1 1 1 . 1 ■ ^ ,1 ,■ . ,-
, . ic 1 i • X 1 4. \ ii i. master, who had Inund auaiiist the' laet"t ■
liiniself when it is too late to pay the treasurer, . , • , - 11..,,,
, . . . Ill- ii 11 r f -i. 1 Hii agreement having lieeii inaile lietwuii 1
and insist on lioldniL' the land as forfeited. ,-'' ,, . " ;■ 1 ■ 1,, ,1 101 1
,,., 1 *' . , , liarties. J/()/v..s(»/( v. /k/'/k/siik, IIK liv. -Wi.
\\ here such an agreement was proved hy a ' 1
credilile witness, hut there was eontradietory There may be agency and its duties ami lislJ
evidence as to whether what took place amounted ties without express w nnls of ii|i|iciiiitmeiit lifl
to an agi'eeinent, the court, holding that the pre- eeptaiiee ; and where a party ia'gotiatiiii;idirj
sumption in a case of doubt must be in favour of two persons, the one desiring tn sell, tlicdir
I'ittirt', n:\w tliv..«.,^,r|
lift, \\ Cliy. (Itil.
U ilClltnl il ninrtjllirjl
sit ul tltlr (IccU
rity, till' ilclilor <\V(,r,l
lii;iilr tiiHii iiniirt,,!,,!
lilll liul l»||l )i;l|,l „|f,l
II tlii'iillur Iniul, >w.itel
iiirnl \>\ till' l«iik, ;inil|
u'lMuv nil lii» iii.Kl,t,,l.|
,iv, anil a HHMiinniiiilnni
tin- il<'|Hisit mi tlicui.1
i'CmIm Wii.s til tile ,iiiJ
I' VlL'W tllllt the ilil«i<it,l
tlu^ liiUiU, \Mi.> LittiiiJ
|inriiii>(' st:itnl l,y tliJ
.■11 illi '^al, iMiiilc iiiU'irJ
illi fii.-^ls, Iv-iitil rii„ij
I'lCliy. il'JT.
iuiuiutiuii wassMnriitol
mill was iliiiiiil liy till
I'liH nil iMirviiliiU'ativr iv\J
••(I a iiiutidM t(i oiiiiiiiit,!
IT cliy. i:>o.
casi'iif iiiir 111 till' jii-tua
,11 fxaiiiiiialiiiii\vast;iki'i
1 lit seventy tliivi', t;\v(
iiiit reeoUeet nlnl iliil im(
as exaniiiieil as the iiitil
i;ave ereilit tn tile ivitijT
he eviileliee. Hi'iimi,.
.■ellyeiiiiti'ailii't eailmtkJ
it that ime sjiealis l;ilHij|
gnttell the eiiviuustaikti
vreiielslieliali as>uiiHitMl
Tj^'e institiileil liv tlifiiiiill
whieh itestahlisluilwinijl
V ;;rave iiatinv, thi' oiiin
inueilile, aiul aeeeiitci til
(,t the laets, altlinu.li ilif
y theelielit. //' i'' '/'"
'iiK i-nii, W <'liy, ( 'hiiinli. ■.t)l
earefnl not t" iittiicli tf
estiniiiiiy 111 iiiniesiti""!
|| eireiinistanees. Il'':i I
lis, that it' the lUr isi.'li'ilj
Vils altiijietliereiitlitmif
It testiiuiiliy "1 ^'I'lllM
,as a rule." will ail.>l't I
J; still, where tlleevi.kM
|niiii-t,i,aL;eeastiiaiiamiiJ
]., wh'ie'.i hail heili satlslid
eipiitinue as a mlUttll
Int iiiihii-seiiients ami
jrt.uanee, ami the iii"it,i3l
la III remain in tlieli»l«J
Iharm'il, anil tlie iiuntJ
IsessToii 111' llie titk' Jn
ll these eil-eiini>t;ili«*
(the iliivet eviilei'cc ni t
].rseil. the ileeisu'li "1 '
|uil ajiaiiist the laa "I 4
r hooii nw-U' l'i't««M
' lt„l,n,^o„, UKhy.WV
|.vaii.litsiliitiisiii"ll'4
|v.mlsofaiilii'iiit'"^';"'1
llK,rtynej.'iitiatii.g*ti
' desiring te .<cll, tlic ctl
MOD
EVIDENCE.
1 HO
.iiiiy (Mil lin laud, j^ave the fnrmor ti) iiinler
(Uii'l tli'i* '"' ^^''^ ivi'fiiiL; in li' r interest, it w.is
Ul.that sill wa.H entitleil to the full (iriee wliieli
, iiiitiiilii'l I'"' t'l'' '••■inl, tliun^'h it exeeeileil the
iiiit wliieli 111' 'l:>il i>'>taiiii'il her enuseut to
1, dit. Ill ■■*"*''' " >■•'«> I there lieinj,' a eonlliet an
tinlwlhuil passeil in the eniivi'r.satiuii,-!, ami no
tli,r wttiii"*^ "' tlii'iii liemj^ prmliieeil, it was ^
HiM, that iitlii'i" lliin^'^ lii'iu^ eiiiial, the vi'i'simi
1 j fli^, .lect'iveil party .shuillil he aeeepteil in pre
I ((Muv til lli^it "' ^"^' iither party. W'ri'jiil v.
/;„*, 18 t'liy.tVJ.-., I
Wliiro nil a referenoo to the master the plain
i tltfjffnre that lie never reeeiveil the aiiniuiit of
• IcMi'V ti> "liii'li !'>' '•*'■*'' entitleil, ami the ile-
j fa.hiit swi'i'i' tliat he hail p,iiil all Init J<S(), ami
, juitiir"^ ealleil hv the plaintill' pinveil an .ulinis-
limi liv the ilet'emlant, that the wlinle 1e;,'aey
t«M.«iliii'. '"'t t''^' "••"**>'■' I'l'pi'i'ti'il that this wit-
iiiit til he relieil on, the einirt, in view
i oi all the liieiini'itaiieos, ret'ii.seil to ilisturh the
Ui,<tii'sliii'iiiife'- Cvtiir V. L'littii; '21 (.'liy. I,V.»_
III l!si!(, a luortjiagu was transforrod to secure
jitViiMl iiiito.-t i)f the niiirtj,';i]L;ee, one iif whieli
l»-,v,, alimit I'liiiiteen years al'terwanls, fuuinl in
|tliiii.iiiil-''iil' the assi>,'iieu of the nmrtgagee, ami
[itoiiijiiiiitly w'tli '^'i "liii I'l'iinied to he eiiti-
Itliil til the iiiite, tiled a liill to foreclosio. The
jinortgagtiraiiil inortgagce hotli te.stiliod tli,it they
thdiight, anil had for years heen under the iiii-
|prts.>i"n. that tlii^ whole claim iimler the assign-
llDditlMilhi.'1'ii P'^i'l ; that tlu^ iilaintitV .M. was
liwintiiv-iteil ill this note; and that through
lovmight it had not hei'ii delivered up. The
llttonny wliii hail aeted for M. having sworn that
hijimtiwa^ the one inwhieh M, was interested,
Bilth.itit hail never heeu paid, the court, in
i««iil the faet that the inortg,'ige and note were
toll iiiiiiiil ill the hands of the assignee, and
IhatiHili'iiiiiiiil ilui'iiig so iiiany years had lieeii
iilofiir their iliseharge, deereed in favour of the
laiiitills. Sciili-liiril v. Kiihi, "21 Cliy. HO.
Til a hill fur alimony, the Inishaiid alleged as
igri.imil iif ilefeneo, that the plaintill' hail been
Bilty iif ailultery. The evidence of the actual
fcnuuissimi iif the crime was distinct and posi-
[vc liy the hrnther and hrother-iudaw of the
islfliiil, who had watched on the outside of the
loiisi'iiu the night that the allegeil act of adiil-
IK Wivs saiil to have heeu comniited. These
pwituusserfalsii proved that the lani'uage used
ytlie [),iilies was of an ohscene ;uid ollensive
uraoter ; ami then! was the faet that letters
I. Ill iihjectiimahle nature had been discovered
ipa.«siuj,' hotween the plaintill' and a young man
aiust whiuii the hushaud had warned his wife,
III hail tiirhiilileii her to associate with. The
»r;, miller the eirounistances, gave credence to
e stitemeuts of these two witnesses, although
litliiuit thuir eviileiice the ease would not have
p\ iniirc than one of the very gravest suspi-
Idd; ami this although the plaintitt" ami tlie
irtiicriu lior guilt swore positively that no such
Hi.iilevcrht'eii committed. Campliell v. Caniii-
■', 2-: I'by. 322.
IThe uature of the cvidoiice to bo accepted in
peases, .aiul the rules to be observed in the
isiileratioii of it, discussed. lb.
XXIV. MlsrF.LL.\NEOUS C.-ISES.
uii action ag.iinst a sheriflf for seizing and
mg goDils, it is sufficient to prove that the
89
, s. 1, respecting
ind for proof of
deputy sherifT seized them colore otlieii, without
proving the writ of exeeiitioii, or :;iving other
eviih'iiie of his being deputy sherill' than that of
general repiitatioii. Ilnli \ , .hnius, I »ra, l'.(0.
Where a [urty who had given a mortgage to
secure a debt for which In had made hiinseh liable
as surety, and had received from his priiieipal a
nmrtg.ige on his own est.ite lor the same debt,
afterwards tiled a bill to I'oreelose the latter
and redei'in the lirst mortgage ; and ihe |irineip.'il,
at the hearing, objeeted to the bill, on tho
gi'iiiiml that it was iniilt ifarioiis : Meld, that
evidelire taken by the plaiiitill's to emitr.ldiet
statements made in Ihe answer, was admissible
though not put in issue by the bill. Si-liniiii v.
Ai iii^ti'iniii, "2 ( 1. S. .'{27.
The statute ."i (Jeo, II. c.
allidavits to bi' made in Va\
debts sued for ill this provinci', is not repealed
by the provincial statutes regulating the iiitro-
iluetion of the law of iMigland, or of evideiiee.
(^hia'iv, if iTiili allidav it iiiade before a suit is
[ comineiieed, can be read at a trial subsei|Uently
had ; or, if slU'll allidavit must be entitled in
the cause, tluriloti v. h'nllir, ."id. S. 174.
.\ foreign post m.uk on a letter, is primA facio
evidence iif tlie time w hen tlit^ letter w as mailed.
O'Xii// v. Pin-hi, M. T. .-{ Vict,
Seinble, that a reeit.il in \\ warrant by the
commissioners appointed iiinler 2 \'iet, c. la, to
dispossess the. (larty einivieted, that thirty days'
notice had been given him to remove from the
lands, does not all'ord sullieient evidence that
such notice was in t'.iet given, l/i'tlr ft at. v.
Kinliiiij, t) t ». ,S, 2(i.'i.
Where a witness being called to prove tho
plaiiitill's case, persists in making positive,
though very iini>robable stati'iiieiits, disproving
it, the court, in the absence of any other wit-
ness, will not allow the case to go the jury.
Macaulay, .1., diibitantc. Viiicriil v. S/iriKjin-,
3 i). H. 28,'{. See, also, linrlur v. Ai'mxl riimi. (J
(). S. ."i4:»; l.niH\:.liin-lt:i(). 15. 127; MUk'liw.
Olinr, 1 1 I'. 1'. ;t(i;{.
Where a witness, the payee of a note payable
to bearer, and transferred to the iilaintilV, proved
a iiioinisc by the defendant, the maker, sullieient
to take the note out of the statute, but could
not identify the note as the one to which tho
promise applied, and it w.as not alleged or sug-
gested that there was any other note in e.Kistenco
between the parties: Held, that the not having
identitied the note w.vs no legal defect in tho
evidence of the witness as to the promise to pay,
and that the identity of the note was to be pre-
sumed. Ifii/iKilil.i v. O'Hriiii, 4 Q. B. 221.
The plaintill' decl.ired in ;issuini>sit on two
counts, each (Ui an agreement, dated the IGth
November, 1853, to deliver timber. Hreaeli,
non-delivery. 1 )ef endant pleaded non-assumpsit
to tho whole deehiration, and several other {>lea8
to the first count, and to that count a nolle [iro-
seipii was entered : — Meld, that it was sullieient
at the trial for the iil.iintiir to produce one agree-
ment corresponding with that declared on in tho
second count, and that it was not necessary for
him to prove one eorresponding with each count.
Usiiuriic V. Gram; 13 (). li. I(i4.
A plaintiff is not bound by the inadvertent
atatouient or admission of his counsel in opening
:i)
TfWPP
III
KXKCUTION.
1112
■ r
liin cm', Miiili iit.iti lii.iil liriiig lU'iiiriiitl)' ictni"-
tnl liy tlio iittdiiii'V ami inuiiHt I, Juinirtlit v.
Thi <l,-nlt \Vi^l,i-ii hiilinifi Co., i ('. I'. .»88.
Tlio niitHtur'H rt'iMirt in (iriiiift fnuio uviiluin'c of
what it I'liiilailiN, iiiiU'ih a|)|i<'ali'il froiii. XirlmU
V. M. Ih.,i.,l./, \ I,. .1, -JCO. riiy.
Ill an .'ii'diiii lor iiiiiiiiv liail ami iricivt'il : -
llrlil, tiiat an iiiiliitiiiciit u|iiiii wliicli the ilrfcii-
(laiit had Ih'iii ciiiivutL'il ol iiiil>i'/./,li'iiH'iit, Imt
ac'iuittiil nil a i'liai'j;i> <if laii't'ii^, wan ailiiiiiMilihi
us jiriHif (if tlm* tuot. Mni'iltiKiiti/ v. I\i I'lmin,
7 ('. P. isl.
Thci wi'ight attiiclu'cl l>y tho coui't to tlif
fvidfiHf j^ivou hy (irol't-NNioiial witiii'Mwih is ili-
liiiiiisliiil liy ill'oitH to .iiistaiu tiio vii'WM of thf
iiai'ty who may I'all tliciii; it sliouhl lui given
fivef:oni liiaH. Slwk v. Wimhtul., 7 ('. I*. Il.'7.
It i.i not 111. rssary liiat a « lit of li. fa. wh'ili
has not Ixi'ii ri'tiiriucl, slioiiM iifonroiUil Im'Ioi'o
it oan he ^'ivun in oviili'iiff, lint •.iw writ it«i'lf
inav, if pioiliuiil, in- giviii in f\iilein'(' ; ami if
loMt anil iiiiL'iiiolli'il, wiciiiiilaiy i'\ iilciui' may lio
givL'ii of it. Sfiiliny, hniiDiiiii, l.'tC. I'. \'i,\ .
Tlu! witnc^.-itH 1 alliil to |iio\i' tin iiii|io.Mition
of a (Intv on gomlH in the I nitoil StatcM afti r the
IT'.ii of Manli, iKi'iviii Ihi ir knowlcilge fioiii
lirinti'il I'iivulars : - llt'hl, in.sulliiit;iit. Frwi)'
ft 1,1. V. Thr<;r<iml Ti-'inl.- n. ir, r,.., •_•(•( (^ 15. 488.
ir.M, th.it iin.lor »oo. •-';{ of .TJ \ i.t. o. .T_», it
i.s irnuular for tlii^ judp' w lio tries tlie ease to
tail a jnry, or to rei'cive d('|iositions of witiiej'Ncs
as evidciii'i', 'lilt this is not i,"'oiiml for jnoliilii
tioii. Ill ;'i Unii'-ii it III., 8 I,. .1. N. S. 81. — C
L. Chanili.- <lalt.
Semlili', tliat wlicii the venliet !s olitained
Tipiiii the ti'stiniony I f either iii.iintitl' or ilefeii-
daiit, the viile agaiii-t j,'raiitiiig a new trial on
the weigiit of evidelir.', is less strie'^ than it was
liefore the |i:irties were admissilile as witnesses.
('iiiiiiil'iiiii Jldid' of t'liiiiiiHfrc V. MfMitlmi, \M
i}. H. .V.'ti.
The attesting,' witness to an award may be
compelled to attend and jirove tl;eawvrd. Tiii/-
lur \. tio.^tiricL-, I t'iiy. Clianih. L','5. - Sjiragge.
On the investigation of title between vendor
and vendee, iiiuk'r the ordinary jnri.silietion of
the court, it is not nsii.ally necessary to iirovc
the execution of deeds produced. Jliiiili/ v.
Il(f//.v, 17 t'hy. <lllt).
Allldavits are admissilile for some pnrjioses oil
BUch an imestigation. Where, however, an alli-
ilavit was oU'ered to jirovc the loss of a will,
which had been proved in a Surrogate Court in
Jiiew York, but had mver been registered or
proved in Ontario, and there wa.s some reason
tor .•ipprehiudiiii; that there existed no legal
means of proof of the will by the purchaser,
should he he eoniiiilled to accept the title, the
alhdavit was held insutlicieiit evidence. Hi.
EXAMIXATIOX OF JUDii.MKXT DHHTOil.
I. T(i Arrjcii Dkhts —Vcc AriAi iimkxi of
Dkmt.s.
II. Under C. 8. U. O. c. 24, s. 41.— .•>•.( B.vnk-
KLPTCV AND INSOLVENCY.
III. Undeii Division Conns Act — .SVcBank-
RVPR V AND Insolvency.
KXCilANdK or I.A.Mi,
See Kntatk,
K.Xt'l.sK.
<V<(' Ukveni K.
ma
i:\i:<rTi(»N.
I. Immkiu vir. I",\K( I iios, I II I
II. KiKHi Facias ((iouiM,)
1. I'riirtiri hi hxiiiinj, IHI,
2. Tiiiii of O/iinitioii, I4U;,
[\. K.ii iii/itioiii, 1417.
4. I'ro/H'rti/ Tiihi II.
(ll) Lnl/iili(ilil, Ills.
(b) K'/iiitii „/ /,',>/, iii/,i;,
(c) St,.,i; I IL'O.
(d) i'liiiiii rt/ii/i J'ri,/,, iiii. I rjl,
(e) .l/../(.//, /I""l' l>'l'lM,„i„l.s,r„f,f,,
I4-".'. *
(f) oiliir /'rii/ii ifi/, U'2-2.
(g) FiifiuVK ~Sn FiXTi i:i:s.
5. FfOHihiknt Jftmiivil, M'.'t.
C. oiliir CiLTn, 14-J4.
III. FiKKi Facias (Lanus.)
1. J'nictlcr 111 iK-tii'iiiij.
(a) Ihiilh ii/Exiriitiun Di/'i'iiihml, 1
(b) Kiiciilhm iiiiiiiii.tt l.iuhU iiiidi;,
14-.'5.
2. Tiiiii ij' O/ii'riillnii, I4'J7.
3. ProiHiiij Tidiii.
(a) '/'(/•//( o/' )■,(/, w mill };,„ii;'
I4-J8.
(b) Triixt K.^liit,.i, ll'JS.
(c) l.mnls III IlllwUiif Ihr ll'i,\\\^
(d) El I II it !i of ItvtUiiqilm, I4i's.
(e) liiti fiM of Murtijiniff, H'X,\,
(f) 111 I'l f'lioiiarii liilii-i.itx,\\',\\,
(g) (Hliir Pi-oji, rli,, 14,S4.
4. Pfocted'iV'j itmlir Ejiiind ll'nV,*, 143(
5. Otlirr Cii.<iK, 1 t;iS.
G. Wlli'll K.nciilinii ir'ill h'liiil Lm\ih\
llillii/" of El' cittors— Sic KXEll'l\l|
AND AllMlMslKATilliS.
IV. Sale ov Land \rii/0l^ l^netTiux.
Iiii-
.3.
i-li-efiiiioi., urti,
' .(//// n<(ii, ws.
ritict ill ol/itr I'l'
iiiitikqiiari/ of Cuii'' ''-ll,
(h, I I'll,.,' .y^ f,i:i, 144.i
4. Titl'f oniiiii t I'll Piarhintr, 1443,
5. Er'nli'iiri- of I'itli in EjniiiiiMl h'Ji
cIkiiiii; 144<>.
G. Siltiiiij iiiiili Sol,, 1440.
7. Otliir CiLvs, 14-t!l.
V. Venditioni Kxi'ona>, 14,'il'.
im
1113
FA'KCUTTON.
II
V LAND.
IK.
K.
•,N I K.
I'lnN.
I1..N, lilt,
mil.-'.)
,;»;/, nil.
;„», lilt;.
17.
II.
141S.
lt,iUmi''''«;, 1110.
!0.
;,, I'roiHihl, IWl.
iiok I''''!", "ii'l S^nr' ■■]
-,;„,•/.»/, U'1'2.
-Si'i KlMTltl'S.
tniior^l, ll-M.
im.
,L.VM'S.)
'ilsll'illij.
• tJ.i-,i-il>i(in l)il'niih'lit,\>illi
niiiiiiiiisi I. It iii It II ii'l I '•"■t^
I'dliiiii, 14"J(.
,(/•( II.
1/ )'i ll|•^ mill I'iltf (-'i''
.^,^.s 1V28.
L iiiiiiihofthv //.:r,u:!|
!,,(' I{i-iliitqi'i"i>< !■'-''■
„„/,,. /-.'..y-nv/ iiv;-. u3(
I, 1 1:>8.
.„/;„», will lihiil Liui^'l
liMISlSl'tATDKS.
,„i.' /)(■"'. '♦■'*•
I, , ;„ olini' '■' ■
/.,/ /•,uv/.ii.vr, 1445.
11441'..
I, Siili, 1440.
1441).
txl'OSA-, ll"'--
VI Vn\N I'l.l HIKS, ('oMinitENT.VMi Dl TI.I-
, viK Whits, N.V.>.
VII. Kyf 11'^ "'■'■■ '''AKi ITKiN, HXi.
Vlll. KM"'"'""''^"'''*''' "^ KxKi rriiiNs, 1451.
1\. IlKNKwiMi Whits, 14.'>.'5.
X. AllAM'i'NMKNT, 14ri5.
\1, I'ltiiiunv i)K Kxr.it'TinNs.
) l.iiM- III' /'rlnrilii III/ liii'ii'iiim nut to
KJicul,; I4.S7.
•J, iltliif Ciixi'i, I4rt8.
;|, .l< lii/ii'iin Atliif/i'iiiij Ci'iil'iliir!* (iml
OflnrM—Sir AiiscDNiiiNii l>i:iri'<)it
— ATr.vriiMKM' (IK l)i:iris — Divi-
sion I '01 Ill's.
4. Ojx fitl'ion III Uiiiihriiiilrii nuil Inmihu'iirii
-.v.. H.VNKKI ITtVAMi InsoI.VKNI'V.
5, A* III l^'ill" nf '"^ill' -~>i<i' Hll.l.S OK SALK
AMI ( 'llAI'li;!. M<i|IIIIA(IKS.
0. Itrji^tnifi'tll of •fiii/ijiili Ill't-Sir .Jl'IKi-
MKM'.
\ll. Settim' Asipk. Kxki'I'tion.s, 14(11.
;\I11 SrVVtS"! OH I'oNTUOl.l.INd KXF.rrTION.S,
I4ti:{.
1. Ihl liijiliii't'iiilix -I'^i'' Is.irMTiov.
'.'. Itiii'iiiirf itf En-Ill' mill Ajijmtl — Sir
I!i;i:i>i!" \N1' Ai'i'i; \i..
\\i\. Ml.«Kl.l.ASKOlS I'ASBS, 14li4.
[W, I\ I'liiMiNAi, Casks— Vm L'ki.minai. Law.
iSl OlIlKK WlilTS OF KXECUTION.
I. Ciiji'iiH ml SiitUfiidi'iiiliim — iS'rc Ca-
I'lAS AD SATISKAl'IK.NHr.M.
•J. Vrmni Kjvnitiimit — Sui' CltoWX.
li. Iiiriiinii t'liiu-t Kiti'ulionM — Sit' Divi-
sion ColUT.S,
4. Kliii'il —Sir Ki.EtiiT.
,'>. E-rlilll Sif KXTKNT.
0. Hull. Fur. Poms. -^Si-r Kjkctmknt.
7. Sriiii.-^lniliiin-Srr SEQUESTRATION.
fXVlI. Am Aiii -li KxKci'TioNs.
1. lliiiirullij—Ser A>ii:ni>mf.nt AT Law.
'.'. lttLr"<ti- See SUERIKK.
VUI. SllKKIn's J)L'TV ANli J-lAllll.ITV— ^V<j
SllKHIKK.
pilX. l!i',Tii;\ OF -Sre Sheriff.
\X. riUNiiAiiK— .SV(; Siii:i!iFK.
[\\\. DlSTRKss Wtll'.Iil-. CllATTKI.S AUF, IN V,\-
Ki rrioN Oil C'lsToiiv OF Law — Sn-
]>isTui;s-i.
pill. I.NIEKI'I.IIAHKU ruoi'EEDINCiS — Si C. Is-
TEHrLEAliEK.
pll. Malk idcs LxEcn'TioN — .S'cc Malicious
Aui(E.sr, I'KOSKIUTION, AND OTHER
Pkoceeuinos.
P' '<SUE OF ON TRAN.S(,'RIPT OF JUDGMENT
FROM Divi.sioN Court — See Divi-
sion CouitTs.
T CiuRoixi) i.v Execution — See Pkiso-
xer.
XX\'I. I<ANr>I.oHI>'s ('|.\IM Fill! I'FNr .SVc
MllKUIFF.
XXVIL Thesi'ass Koii Ski/.inii i nkkii Kxk»'»-
TlOX — .SVc TllKSI'ASH.
L l.MMF.KIATK KXEll lIoN.
I'liilir Mi Vict. <!. 17.^, a eounty umirt jiulgo
oimld oi'rtify for iiiinn'iliato ('Xfi'iitiiin in liiscs
Mint iliiwn to liini Ky writ of tiiiil, .is will us in
otlit'i' I'.'isi's. liiiii/i 1 1 III. V. //<(//, loiil /'iiiliriiiiii
V. //,(//, II ii. It. .S.-.d ; MrKi'i/ V. //.«//, 4 V. I'.
I4.\
Sn also in a Mn|ivriiir innrt I'a.si' taken iluwii
for trial til a oiui't^- I'nnrt iimlcr 'JH N'ift. c. 4'J,
a. 4. Uililn-sliirr v. Iliiniilloii, 11 (J. \\ •21)8.
II. I''ii:i!i Kmias ((uioiis).
I. I'rurtirr in /ssiumj.
rriiin inlnit (i//((V.] -It is ii'n.';,'Mlar to issito
uxucution out of tlu! ollU't! of 11 ili'puty ilirk of
till! crown, in which there have liceiiiin iiruvimis
jiriicceilini.,'s in tlu' cause, nr in which tlicru in
no jinlj^nieiit cntcreil. /Jii/ri/iii/>!i v. .MnHni, I
1'. K. :i-'7, riotu. Draiicr.
\ rule nisi for a in.uiilonns wa.s ili.-irli.argcil
with costs. The rule iliMliarj,'inL; the rule nisi
with costs was issucil, anil costs thcreuiiim
taxcil in the jiriiH'i|i.il ollice in 'roronlo. .Alter
warils tin; party cntitlcil tn the costs lileil tlio
rule in till- ollice III' a ilc|iMty clerk of the crown,
ami issued ;i ti. fa. j,'immIs from that otiice : —
Held, that the writ should have liecn issued in
Toronto. //( rr Ihr Jiiilijt uf tlir I'linn/i/ ('imrt
of llir Ciiinili/o/J-J/ijiii, 8 L. .J. 70. — C. L. ( 'haiiil>.
--Draper.
To irliiini iVirtrliil.'l \\\ execution against
goiiils of a deputy sherill'niay lie directi'd to tlio
sheriir of the county in which the deputy re-
sides, and ought not to lie directed to a I'oroner
of that county. In such a ease, the plaintillwas
ivlliiwed to « ithdr.iw his writ of execution and
amend by directing it to the shcrill', and not thu
eoronur, (lonlon \, Uviitn; tJ L. J. ll'_'. — ('. L.
Cliauil). — Mo Ijeaii.
The plaintilT, as coroner, sued upon a iiotu
made liy defendant, ]iayalile to \\. or ordei',
alleging that while it reni;iined unpaid, one M.
recovered a judgment ag.iinst H., C., and D., anil
issued a ti. fa. directed to the plaintill', under
which lit seized the note. Defendant pleaded,
that after the nuiking of the note, and lieforo
this suit, li. being tlu; owner and holdcrjif said
note, delivered it to ('. to receive the aniount
tliereiif, and pay with it a demand made hy tho
owners of a certain vessel against 1>. it Co., and
hand over the residtu; to the Coninicrcial Dank.
And further, that in the suit in which said judg-
ment was recovered, an order was inaile for
defendants to aiipear and bo examined before
the judge of the ("ounty Court as to the debta
duo them, &e., and tho note was then liled in
the Court of Common I'leas : that tho plaiiitifT
and M. had notice of the premises, and said note
was taken out of the ,-..ii(f court by the fraud of
tho plaintiff, and others in cnllusion with him,
and the plaintiff, at the commencement of this
snit was the holder of the said note by fraud : —
!,r
Uli)
EXECUTION.
1415
Held, on demurrer to the plea, declaration good, ment of the jiulgment, less the costs struck off
for it must be assumed that the writ was properly •• — •■■ "'' '^^ „t„ ,.c iv, .• .•
dirccte.l to the coroner, as it might be under 20
Vict. c. 57, s. 22. Plea bad, as shewing no de-
fence. Unnvn v. Gordon, Ifi Q. B. 342.
Held, that a writ of fi. f>.. against a railway
company, which wao directcil to a sheriff liefore
Lc became a director in the company, was pro-
Iierly directed and returnable by lum, !.nd his
jccoming a director before the return of the
writ did not invalidate it. Smith v. Sjiciiccr, 12
C. r. 277.
See Oon Bank v. Gunii, 1 P. R. 323, p. 1454.
'J'liii('/(ir Uiitiii;/.] — It is irregular to is.'iue a
fi. fa. goods after a levy on a writ against defen-
dant's lands, which has not been returned, and
on revision, and the costs of the ti. fn. aiul inf.
of the interest. ^1mo/i., 4 P. li. '.Mi.-C i
Chamb. — Morrison.
It is irrcgidar to take out a ti. fa. tliu instint
costs have been taxed, witliout alli.win,. a rca
sonable time to the solicitor wIkisc (■limt hastn
pay them to communicate the result i.i tlictav.
ation. Ciillcii V. Vulku, 2 C'liy. Cluunlj. y^l^
Mowat.
Otho-Cdm ]— Afi. fa. niay issue ,i,<;aiiist('„„,l,
although defendant may \w 'li''''iiargi.4'fr„iii
prison for not having been rcguhivly oiian-od in
execution. Doniidii v. J'ltir.ian^ T;iy. '21H.
The court will not order tliat execution sliall
issue on a jiulgment for the beuelit nf a stwiwr
• 1 ,. ' i-x 1 ■ • T 1 I to the judgment. Odiitlik if ol. v. BiimII -in
a judgment creditor who IS prejudiced n:ay set j^ g.^y ° '''"•'■
fe.i'cli writ aside. S/triiiti v. Shc.ldvn, T. T. 3&4. ' ' \' [.'
Vict. — P. C. — Macaulay.
A fi. fa. goods might be mailu
an interval of several terms.
A fi. fa. issued on a judgment on a specially was issued on the 18th of ,)ulv,
endorsed writ before the expiration of eight on the 1st of Trinity term IS.'w.
days from the last day for appearance, is mx, Smith, 13 Q. B. 243.
irregularity, and if knowingly issued, an .abuse
of the process of the court, lianihill v. lio}0-
7H<t}i, I L. J. N. .S. 158.— C. L. Chamb.— A.
Wilson.
'vtiini'il.lcwith
111 this asiit
i !S-'4, ixtm-iialje
Befori
A fi. fa. having been issued, the plaintiff, after j
the return day, l)Ut before the return, t.Nikuut '
a second writ for the full aiiinuut, diruftol to j
., «..•,-. ,.- ,« •.. re another sheritr. Tlie first Avrit was aftcnvarjj
re the 20 \ ict. c. 5/, s. 10, it was suffi- i returned, £10 levied, and goods on iiaml turthe
cient to issue a writ of execution within a year , residue ; .and a ven. ex. issued uii.in it-ldii
from the entry of judgment, and it was unneces- that the plaintill' should have pro.-uiv,! a ivtim I
sary also to return and file it within that time. ! „f tlie first before issuing tin- slc'iuhI nrit ml
Holly, n.iitlton, 3 P. It. 142.— C. L. Chamb.— j should liave issued it only for tiic ivsiihic ; and }
A. W ilson. I that the fact of the endorscuunt mi tlif si'n*!
A writ of execution nmy bo sued out at any i ?*'''* l^'iy^'S been lessened, could unt cure the |
time within six years from judgment with- ; "'.''''^'" p *y- -'Y't"'"'''""'' '''■ 'i'l''""l"oii, 1 I'. K,
out a revivor, and if during the six years it is i *"'*'^' ^ • *- • isidlivan.
sued out, returned and filed, the same coiise- j Where a plaintiff in whose favour an awanl
<iuenccs follow as if, under the old practice, a is, dios after the award, but belmv iu.k'iiuiit, I
writ had iicen sued out within a year autl a day " ' ' . i
and retiiiiied and tiled; that is, such writ will j
support a sul)sciiucnt writ issued after that
period without a sci. fa. or revivor. Jiiikiiia v.
Kn-I.n ,'/ al., 2 L. J. \. S. 1«4.— C. L. Chainb.
— Draper.
A party who has to pay costs on a fin.al judg-
ment on verdict, nonsuit, or demurrer, or other-
wise, in the onlinary course of a cause, is not
entitled to any time to p.ay them .after proper
l>roceedings had to entitle the other party to
collect them, nor is any demand for payment
before execution reipiired. A party entitled to
costs may proceed to collect the same by exe-
cution immediately after revision, without wait-
ing a "reasonable time" for p.aymeiit. C'oo/iilije
V. /itnd- of Monli-Kil, (i P. H. 73. See Smith v.
Croiik, Hi. 80.— P. C— A. Wilson.
Plaintill' recovereil a verdict, but del.aj-ed for
some months in seeking to enforce it. He then,
notwithstanding the repeated offers of defen-
dant's attorneys to pay the debt and costs when
taxed, immediately after tax.ation entered judg-
ment, and without notice to defendant put a fi.
fa. in the sheriff's hands to levy on his goods
forthwith, which was done. Some items were
subsecjuently struck off the bill on revision. On
an application by the defendant for relief, it was
Hehi, that the plaintiff's conduct was vexatious
ftnd oppressive, and an abuse of the process of
the Court : and it was ordered that defendant
should be discharged from the fl. fa. upon pay-
thc suit iloca not al)atc, Init juiliriiiint uiavWj
entered under the 17 Car. 11. c. S. Nd iXLVutKni,
however, can issue in the uaiuc of |i|;iintilf3|
executor without reviving the juili.'iucut. /';
tor v. J(lrri.^, 15 Q. B. 187.
The crown m.ay issue a ti. fa. fur the sale]
of lands and goods in order to satisfy a lir.ej
imposed; and the person fined may bu said to J
be indebted, and the tine to be a delit. R jmi
V. Thf Di.yitrdin-s Cinml Co., 20 <J. H. Km.
Lands and goods m.ay be inchukil in tlicsam9|
writ, and it may be made returiialde licidrethel
expiration of twelve months, the orowu uoti
being biiuud by the 43 Geo. ill. c. I. II'.
2. Time of Offratiou.
Where goods are already in the custoily nf thd
law, a fi. fa. <at once .attaches uimhi tlieuj, witiij
lout an actual seizure. liukuKin v. Jiini<,
Q. B. 280.
Under an execution deliveroil tn himmthd
Ifith of November, the sheriff seized ini tin' llthj
the plaintiff, another cre.litor, was thou at m
debtor'sahop receiving <lcli very <>{ siiuiei.'n»'kir^
which the debtor w.as selling him tn satisiy li^
claim. These goods were proveil tn have bc('
set apart for the tdaintitF, and tn havo ' •
marked with liis mark, and one of the artu'ie
h,a(l been delivered to him in the ninio "t tin
whole. Part had been removed, ami the kA
mi;
the costs stnitkoi
)f tlio ti. fii. anil part
4 r. U. 'JW.-C.L
t a li. fa. tin,' iiisUnt
ilidiit iillowiiij^ a rca.
ir wliiisf client histo
tilt' result ut tliotax-
2 Chy. Cluimli. 04.-
U17
EXECUTIOX.
U18
lie
issue .'ijiaiiist gncKls,
ilisrliiirg(.'4 tniia
1 regularly (.liiirgcil in
•lir,iiiii, 'Pay. 'JTS.
r that executiiiii skll
M bcuelit lit a stnuiger
iet al. V. fiiistf//, 50.
1 made veturiiabli; Miti
erius. In this a.si it
July, 18"4, ix-tuniaWe
1 18.W. /•'i*ci((i/. V.
iucil, the pliiiatilf, after !
•e the returh, timknut I
ill aumuut, ilirudeil to
it writ was aftcnvarils
1 godils nu hand fur the |
issueil uiiiiii it ;--lli.'
iiave iiriirurcil a ivtum 1
,' the seeouil writ, and j
liy for the resiiluo ; ami I
irseiueiit on the si'tmiil]
leil, eiiulil nut ciiri; the]
'/( V. Th<iiiiii'»jn, 1 1'. K.
, 1
use favour an awanl
ut liefiire juilmiKiit, I
lut juil,uuient niayWj
I. e. S. Nuuxi'i'utiiin, )
name of pliiutilfsj
the j\ulL:uii.ut. /'/V-l
ti. fa. fill- tlw sale!
nler tn satisfy a line I
liueil lu.ay he saiilto|
t„ heaiU'ht. Rpa\
Co., '.'0 <.»• !<■ l"-).
.M iucluileil in tlic samel
e returualile hefurethel
ouths, the criiwu wtj
111. e. 1. /'•.
Openiti'jH.
inthecustoilyofthel
.fhea uvou them, witli;f
liiikiiiiin Y. Jon-u, '
..livereil to him ,i[ity
(.ritVseizeileiitlielitJI
[ill tor, was then .at thj
livery of ^""""'^^'■'^'T
llling'him to^atisy"
l-c iirove.l to have be
\ilT, and to have M
L.l oue of the lUtuW
liui iu the irune "t tw
Ireuiovca, ami the nA
B-as iletaineil and secured by the sheriff. Plain-
tiff having brought replevin against the sheriff:
-Hclil, that under a ijlea of not possessed,
Jefcnilant was entitled to a verdict. Cakntt v.
Helil, that writs of execution oidy bind moneys,
chiises in ivetion, or securities for money, from
the time of seizure by the .sheritf, au<l not from
the time either of the issue of the writs or de-
bverv tliereof to the sheritf. McDriurll v. Mc-
p,Jll, 10 L. J. 48 ; 1 Chy. Chiimb. 140.— Van-
Koughiiet.
Where a writ of ti. fa. or se(|uestration is
njaceilinthc sherilf's liamhi, it forms a lien on
Jeftmlant's enuitable estate from the date of
inch ilehvery, aiul not merely from the date of
the rliintitl' s tiling a bill to enforce the same.
J/,„'v v. tVi"'/.-, llChy. 4!»7.
Stock in an incorporated company is only
boimil from the time when the notice of the writ
is men to the eonip.any by the sheritf under C.
S t'. c. 70, .ss. 'A, 4, ami not from the delivery
(it the writ to the sheritf. IInli'li v. Ilitivlituil, 5
P. R. •Ji.'l.-C. I- Chamb.— Daltou.— f. C. .{•P.
Phiiiitiff, on 31st iMay, ISO I, purchased and
paid lor a earriage from F., a carriage maker,
ior J17"i, hut did not remove it. At the time
(li tho 9.ale, the defendant, as sheriff, held an
esMition ag:' " '•, of which V. had notice,
Bil \\K i'.oiveil another after tho sale to the
phiiitiff. F. carried on business as usual with
defiiulant's consent, and defendant did not seize
till the nth of Juno. Semble, per Draper, (J.
J., that hail the plaintiff removed the property
itthetime of siile, the sheritf could not have
iHuweilit, for his conduct jiut it in the debtor's
power ti) eoinniit a fraud, and constituted him
I liiiiasiagcnt of the sheritf to sell. ('nrrutlu'r!<
\ T, Rnjnnhh, VI (.'. r. r)'j().
AWt in lawful use by a person owning the
I isnie, thiMigh not a tishorman by trade, is ex-
empt tnmi seizure under an execution for debt.
\hn\i}h\. Diiiw, 7 L. .r. 'ITA- — C. C. — Wilkes.
The 2,1 Vict. e. 2,"), exempting certain articles
from siiznre, does not bind the crown. Semble,
that tile statute does not apidy where the debtor
hajahsL'iiiideil, leaving the goods with his family.
\Stpui V. Ddiuilsitii, 21 (j. Ji. 41.
In .an .action against the sheriff and his sure-
I ties, for not paying over numeys levied under a
fi.f.a,, it aiipeared that certain goods of one H.
I lad Ken seized I ly the sheritf at the [)laintitf's
rait, .and elaiineill)y thedebtor's brother under a
iBle, whiih the plaintitfs alleged to be fraudn-
llent Thodulitoralsoidaimed exemption for .*(!0
Worth, umler 23 \'iet. e. 25, and these latter
Igomlsthe sliorill'solil under a subseijuent exeeu-
Ition, tliedeht for which that juilgment was re-
I covered, having l)een contracted before the lOtli
!ofM.ay, ISIJO, as appeai'od by an exemplitieation
lofthe JHilgment. 'I'ho plaintiffs alleged that
I these giHuls were not subject to that writ, there
[being no ccrtitieate endorsed upon it under 24
Ivirt. c, 27, s. 2 :-Held, that the plaintitfs eould
jMve no claim on account of such goods or their
IpMetoiIs, for they were exempt from their writ
|iiiider23 Vict. c. 25, and even if not subject to
the other execution, the sheriff was responsible
to the execution debtor, not to the plaintitfs, for
the proceeds. Sen. 'mo, however, that the want
of the certificate was immaterial, as tho stat-
ute does not make it the only mode of proving
when the debt was contracted, and here that
was shewn by the exemplitieation. Mtrh'n' it al.
v. IhymM-i d ill., 24 Q. B. .S03.
A horse ordinarily used in the debtor's occu-
p.ation, not exceeding in value 8<>0, is a ' ■ chat-
tel'' within the act, and is therefore not liable to
seizure. Dav'nhoti tt al. \. RninnUU el al., 10
C. P. 140.
4. Pnijii rtij Tah'u.
(a) Lia.il liolil.
A., the assignee of leasehold ]nMperty, assigns
to B., upon tho nnderstanding that he is to huld
the property oidy as his agent till his return
from the United States. A. returns, and directs
B. to assign the same to t'., which he does. D.
h.aving an execution against tho goods of A.,
purchased A.'s interest in the lease at the sher-
iff's sale : — Held, in ejectment by 1). to recover
poasessiim from G., that A. had no estate which
could be sold by the sheriff, and that a verdict
shoidd 1)0 entered for tho defendant C. JJoc d.
Siiiijmiii V. Pr'ifat, 5 Q. B. 215.
A rent charge issuing out of, and chargeable
upon, a freehold estate, and granted to a person
for his life, cannot be seized under a ti. fa. goods.
Sinttli V. Turnliull, 3 Q. B. 5S(j.
The sheriff under a fi. fa. may sell wluat tho
tei'mor continues to hold under a lease, but he
cannot sell part of his interest, or a part of tho
premises. OnliDnii' v. Ken; 17 Q- B. 134.
In debt on a lease it was proved that the
plaintitl' held under tho last of several assign-
ments of a yearly le.ase from the lU'ineipal otKeers
of H. M.'s (U'dnanee. A jiidgment was obtcined
against tho plaintiff, and his interest in tlie lot
sold under a H. fa. against goods. I'laintift' after-
wards demised the >,iiil lot to defendant ; and, on
non-jjayment of rent, brought his action on the
lease; — Held, that tho interest of iilaintitf was
a chattel interest, and might be sold under a ti.
fa. against goods and chattels (see 7 Viet. e. II,
s. 7) ; and that the lease to defendant being
made after such seizure and sale, tho jdaintiff was
not entitled to recover. SjHirroir v. C'finnipaij/ie,
5 C. P. .S94.
A. demised to B. for a term, with a clause of
forfeiture in case the term should be taken iu
execution, and at the same time deliverud cer-
tain chattels into B. "s possession, upon the terms
contained in a memorandum attached to tho
lease, signed by A., st.ating that he agreed to
allow tho use of tho chattels to assist him to pay
the rent and maintain his family. On an inter-
pleader between A. and C, who had seized tho
chattels under an oxei'ition against B, :-}leld,
1. That the memorandum formed no part of tho
lease, but operated only as a license to use, which
was revocable ; 2 That even if the chattels h.ad
been included in the lease, they eouhl not have
been sold ; 3. That at the most B.'s interest in
the chattels was incidental to the term and to
his enjoyment thereof, and that therefore neither
the goods themselves, nor B.'s interest therein,
could be sold separately from the term ; 4. That
^Hi
s-l
i. MS
• I
HW^WW'
m-
U19
EXECUTION.
1420
if the term li.id been aoizod, Huch seizure, as
>vorkiiig a forfeiture of tlic term, would hiive
operated alsi) as a forfeiture of all K.'s interest
in the ehattels. MiickhMon v. Smith, 17 C. P. 401.
Where a sheriff had sold an unexpired term
and certain traile fixtures under an execution at
coniuiou law, l)ut liefore any deeil w<is executed
by liim a settlement was etl'eeted hy the debtor
with the execution ereilitor, who thereup(m de-
sirecl the slierill' to refrain from eompletiuK
tlie sale, and tiie sheriff accordingly refused
to convey the property to the purchaser at
sheriff's sale, who thereupon tiled a hill against
the sheriir to c<impel him sjiecilically ti' jjcrform
the alleged contract, hut it appeared that no
memorandum evidencing the sale had been made
or signed by tlic sh.'riff : — Held, that the con-
tract must bo in writing under the Statute of
Frauds. Wilhnmv. Smilh, 5 Chy. 203.
The plaintiff's mortgage comprised leasehold
premises held by defendant 1!., the mortgagor,
under two distinct leases. After a decree and
final order for sale tile .sheriff of the county in
which the leasehoMs were situate advertised the
interest of K. in the prenii.ses comprised in one
of the leases to be sold under a ti. fa. against the
goods and ehattels of !{., and sold the interest
to one W. — \V. afterwards obtained from the
plaintifr an assignment of his mortgage, and
entered into possession of tlie whole of the mort-
gaged j)remis(!H, and received the rents and
profits thereof, ;ind was subsctpiently made a
party plaintiff' in this suit by order of revivor.
Upon motion l^y I!, for a subse(|uent accountant!
for re-conveyance by ^V. of the wiiole of the
mortgaged premises njion payment of wliat Wiis
fomid due on taking the account : — Helil, that
the sale l)y the sheriff was invalid, and that K.
was entitled to a re-conveyance of the whole
premises ui>on payment of what shouhl be found
due to \V. for what lie had jKiid the sheriff' and
ni)on the mortgage, d'uotil v. JHc/i, 4Chy. Chamb.
87.— Tayh>r, Itifu-iv.
[See ill. 3 (a) p. 14'28.]
(b) Eqtuli) of Jfeilcmptioii,
[S<e a L. P. Ad, .*. MO.]
As to the sale of an eijuity of redemption in a
ship. See Ihthnue v. Corhell, 18 Q. B. 498.
AVliere a mortgaged vessel had been sold U!ider
a ti. fa., and tlie imrcliaser brought replevin : -
Held, that he aci|uired no riglit, tlie eipiity of
redemption not being saleable, and that the
defendant must succeed on a plea denying the
plaintiff's projicrty, though he shewed no con-
nexion with the mortgage. Scott v. Carcet/i, UO
y. H. 430.
Ter I'.obinson, C. J., under a writ against the
mortgagor of goods, the sheriff", under 20 Viet.,
c. .3, can only sell the etpiity of vcd.emption,
which will give a right to his vendee only to
stand in the position of the mortgagor ; he can-
not Sell the goods themselves and transfer the
possession to the iiurohaser. Siiuair et nl, v.
Furttiuf, 18 Q. H. 547.
A mortgagee ot chattel property having taken
possessign, iia he alleged, under his mortgage,
the sheriff seized it under an execution against
he mortgagor, and the mortgagee then applied
for an order to have it delivered up tiihiinarain.
—Held, that there was no power to maku such
order. Smith el nl. v. Colxiunj oinl /*i /. ,/„„i^,,,,i
Ji. W. Co. 3 P. R. 113.— C. L.Chaml,.
iiirus,
Semble, that under an executi(]|i a"aiiist
mortgagor of chattels the sheritl' n
':i.v SOIZU g,„lj
• may
in possession of the mortgagee, so tliat
expose them to view, although lie can sell "yZ
the equity of redemption. III. '
See as to etpiity of redemption in k.astlinl,).
III. 3 (d)p. 1428. ^
(c) Stork.
Stock in the Bond Head HaHinui-Cd. wasiacU
to be personal property of the dcbtur, aiiil iialJe i
to be seized and sold under an cxecutiouai'iinit J
him. Jh-ock v. Jiiiftan, 1 C. P. 2l!S. °' '
On the 9th of J.anuary, t]w plaintilf'.s atti.nioy i
sent a fi. fa. in Kobiiison r. Banks, tu t!u „litriif
with the following letter : " 11. ivwith v.pii«-ili
receive fi. fa. We wish to get at tUn shares of
Wellington I'ermaneiit liuildiiig Sduiut) atmk,
standing in the name of P.aiiks an.l iiis wjie,
These shares, though standing in tlieir uamisui
a representative capacity, are ik vi itlnkss tlie
property of the wife, and tiuivfure uf tlicde-
feiidant. " The stock had beloiimd tdniie II. I
who died intestate, less than a year 'ucfdro anil
Mrs. Banks l)eing his only sister ami lu'stotj
kin, administration was gr.'mted to lior ainllierl
husband, the defendant in the li. fa. Xiuvi-I
deuce was given of any <lebts due liy.\l.,anjl
it appeared that Hanks had ()ai(l .•iuiii.<talimiUoii|
these shares. The sheriff liaviiii; returiu'il I
writ nulla bona. In an action against liirafnrl
a false return :- -Held, that stock in a ImiMingl
society may be taken in exceiitiou uinKr 1'.' Viot. f
c. 23; but, HcM, also, that under the circain-!
stances, this was not property lieldii.'in;; to|
Banks which the shcritV wa.'^ liduml teiize,
Roliiii.toiL V. Cfnnii/r, 18 (^>. B. 2(i().
In an .action by a purchaser of stuck at slieriirjj
sale, claiming a mandamus to the enniiiany to]
enter the jilaintiff in their ruj,'ister as a sli,ire-|
holder : — Held, that the provisiiirs uf ('. .S. C.c. j
70, as well as the V. L. P. .Act, .ss. •.'.Vi, •.Vul, mnstl
be obeyed, and that as no co|iy nl the wntkiil
been served on defen<lants with the sluriirsiwj
tificate, the idaintiff must fail, (umilir'n, v. Tk\
(tttaii'ii iinil J'ri.iciill I!. W. <;,., 2'.' (}. li. Wi.
Upon an application to coinpel a laihvayoim
jiany by mandanuis to register a traiislirnl'sti'ik,!
it appeared that the stock had hecii suM iiiukrl
an execution recovered auainst "tlio .M:iyiir,r
Aldermen, and (.'oininonalty of the city i)(l
Ottawa," and by C. S. U. ('. c. ."i4, the iianifall
the eorporati(Ui was changed td " TIk' i 'eiiiiiB-j
tion of the city of (Ittawa :" llehl that tbsT
writ properly followed the judgiiieiit as mov-j
ered, aiul was sutlicieiit, the edqidiati"ii Iwijl
formerlyknownbytliename then in given. Hiiil,|
'also, that a demand for the transfer uii'ii thij
secretary ami treasurer of the edni]i.iny, ami
notice of facts served upon liiiii in the aamto
the company was suHieient, the eoiiit k'iiij,")
opinion that service niid demand \i\m\ tiieiiwiJ
(lent was not indispen.sablo. In n '/niK/icm v. Thr
Ottawa ami Prexcott li. W. Co., l;^ (.'. 1'. ll'>4.
Stock held by a resident of Kiiystmi iu ti^
Merchants' Bank, |which has its chief iiK'««
U20
vcrcd up til him again;
() power tu iimi<e such
iiurij 'III'! Pitn-lMi;n'j\
1!. L. Chaml). — liums,
1 execution against j
sbcrid' iii:\y seize gixKlj
gagec, SCI that be may
umgh lie cmi sell onlv
L'lnptidii in kasehr.Hj^
,1 Hiii'limirCo. washtU ''
f the (lolitdv, amlliatile
lur an execiitiuu against !
I C. V. '-'IfS.
, till! plaintilFs attunicy ]
i: 15;inks, Id the slidtt,
r : " llerewitli y.niw-ill I
to get at twii shares i)i
lUiihlin;; Sueiety atuck,
of lianks ami iiis wife. !
inding in tiieir names in I
ty, art) mvi rtliele»s tk ]
lUil tlierefiire nf tlicile-
ail lielongeil tu one M,, I
than a year iiefure, and j
only sister and next oil
granteil to her aU'lher j
t in the li. fa. Xne\i-[
y ilehts iluo hy M., andl
lail \>aiil auinstalnuntoal
rilV liavinL' retnnu'il the!
II action a,i;ainst him fori
that stock in a huillingj
(^xeciition rnnler I'J Viet,]
that nmler the eireiim-i
property helnnging to]
tV was liiiniul to seize, I
•haserof stiiekiit sherilTi
iniiis to the eiinniany to
lieir re;,'ister as a sliare-
provisiiirs of (', S, C.c
I'. Art, ss. 'jri.'i, -Tiii, limit j
lio ropy of the Wl'itbdj
its witii tlie slierilFsoer-r
st fail, (!nu,hnii V. ^(1
W. r„,,-j'.'g. H. iM).
,1) eoinpel a railway cum-?
■gister a transfer (if stuck,!
ek iiail lieeli suM UUilerj
I against "the MaynrJ
malty of the eity oil
■, C'c. M, tlie name oil
llligeil to '•■|'hel'iin""»f
tawa:"- ilel'l that thrf
the jinlgtneiit as reoov^
tlu' (!oriNirati"U ln'iil^
lime then ill ,i.'iven. HeH
r tiie transfer ill'mi 'IH|
of the enmiLiny, ami
poll him ill tlie iiaineo
'ifiit, tlie ennrt Wmgo
ileinamlniiuntheWMJ
lie. ill n'!""<hmy-Tli(
\y. Co., 13 I.'. !'■ ■''*■
,ent of Kiiwstoii in tl
li has its eliief pte"
U21
EXECUTION.
1122
business in ^fontrcal : — Hold, to be personal
Tiriiperty owned out of the province, and tliorc-
I'j.,. exempt ; fi>r it waa owned by such resident,
iniirasthe Assessment Act was concerned, at
tl, head or chief place of Imsiness of the bank.
nil ere, whether the sheritr could seize and sell
^!- Ij jt'oek, merely because it might, if the direc-
tirs ehiise, be made traiisferralde at a branch
office. AV/V. V. />o»!//<«.y, 35 Q. B. 12(5. Atfirnied
inaplieal, U7Q- «• Sl-
id) Pnrtiwrsliip Propcrfy.
The sheriir on a fi. fa. against B., one of a
tirm, seized hi.s share of the [lartnership jiro-
ixrtv. b' '' partner and I). It. c& I'o. notitiod
-the sheriff not to sell, and before any sale bad
betii iii'i'l^'i "• ''• ^ *'''i phveed in bis hands an
^exeeiiti'in against the lirni. I'lion this last writ
' (lit sheriti' sold the wholi! of the ])artnersliii) ef-
(c,ts.wliieli ro:dizedonlya,small partof the claim,
11,1 te the lirst writ lie returned nulla bona.
J), had nil projierty except his interest in the
i tirm ; ami it was admitted that when the first
! frit was delivered to the , sheriti, the ]iartnersbij)
Jeet'i were insulhcieiit to meet their debts : —
illelil, that the sheriti' waa not liable for a fake
i return to the lirst writ, even for noniinal dani-
[igis, ITwt'i/y. Dkh-soii, 10(,>. B. 4-J8.
A plaintiff suing a parting' alone upon a note
I mule ui the name of the tirm, iiinl j'ura juirtin r-
I j/ii;/ i/i 'i', cannot under his judgment and exe-
Icutiiiiiaeainst such partner sell the goods of the
lim, exeejit in cases of dormant partnership. A,
ihiviii" a note signed W. h. it Co., and being
[ifliorant (if tin: existence of any other partnei,
jaieil W. B. alone, and obtained judgment and
leseeiitimi, miller which the sheriff seized the
Ipartiieishiii gnods. ){. afterwards obtaineil an
leseeiition against \V. B. and his two partners,
luliiiit aiiiiearecl in reality com|iosed the tirm.
B.tlielainis were for partnership debts, and the
Ipriinrty iif the linn was not suHicieiit to satisfy
Ifither ill fnll : — Held, that B.'s execution must
{prevail. Tidjhf v. JnrrU, 14 t^). B. 128.
V. and J. T). being in partiii'rship, .1. D. went
rat, and his father I>. i>. took his place in the
ISmi. .\himt six months after this, V. assigned
Itoh. b. all the stock in trade, but possession
Ifis not changed, nor the assignment tiled. The
Iphiiitill'j snliseipiently beeame assignees of the
■linn under the Insolvent Act of 18t)4, and of
jeiehr.f the [lartiiers. In an interpleader issue,
ItiUry their right as against an execution credi-
Itor iif V. alone, the execution being after the
lissijniiiient tu 1*. I)., but whether before or after
Ithe idaintiffs' title aecrncd tlid not appear :--
IHelil, that they must succeed ; that they were
Ickrly entitled to the goods tliemselveH, for de-
Ifffiilant a,s ereditor of one jiartuer could not
lieize them uut of the possession of the .assignees
lof the linn, alihi High he might have a right tit
|\ sshiieof the proceeds, if any, after paying
llheiiartnershin delits. W'iUitn et al. v. rm//, 24
|Q.B,li»5.
\Miere .1 siile is made under execution issued
jaiust line iiartiier, the assignee is only entitled
|to luch jartner's interest or share in the assets
'l«r iiaynient of the partnershi]> debts, and that
|t)o even when the ilelit originally was due from
lliepartnershiji to the execution creditors. Pint-
"^k V. Mulwh, 1 Chy. 50.
Quiere, whiit course is the sheritF to pursue
upon an execution against the goods of one ,if
two partners, under the cireiimstaiices of one
lieiiig a bankrupt and the other not. O'Xill v.
Jfnmilton, 4 Q. B. 2',)4.
See Clark v. Crhdt, 27 il B, Kil, p. MOO.
(e) Monc;/, liooh Ddili), idhI Siritr!/!(.i.
Senible, that books of aeeoiiiit and open ac-
counts cannot be seized by the sheriti', under 20
Vict. c. .'•7, s. 22 ; at least they caiinot be sold
or tr.ansferred, but, if seizable at all, must be
held l)y the sheriff" in security for the judgment
debt, and collected as such in his own name.
M<-X(nif//it„ii v. ll'rW.y, I) I,. J. 17. -C. L.
Chaiiib. - -Draper.
A sale of books of account by a sheritF under
an execution, does not pass the [iroperty in the
debts or accounts therein charged. //;.
Money paid into court is not liable to seizure
under execution while in the hands of the ollicer
of the court. Ci/rryh/ v. Siint/i, 'A !.. ,1. ()7.— C.
L. Cliainb.- -itobinson.
Held, that a money bond for the conveyance
of land is seizable on an execution under l.'t it 14
Vict, c, 5.^, and 20 X'iet. e. ."n. - Kiehards, J.,
.liss. Jfiijliia V. Poll, r, 10 ( '. P. .'lO.
Money made under an execution at the suit of
A., cannot lie retained by the sherill' as seized
under an execution against A., and the court
will order such money to lie ]iaid over to him,
iiotwithstanding the seizure. Sli<ir/i<' v. J.iilch,
2 I.. .1. N. S. 132. — I'. C— llagarty.
A lire policy, after a loss hiis taken place, and
money has become payable' thireoii, is a sjieeialty
or security for money seizable under ixeeiltion,
though the amount payable has not been ascer-
tained. T/ir Bind- nf\Unnirr,il V. MrTiirUh, 1.3
Chy. .395.
(f) Other Pro/Hrli/.
(loods in the hands of a division I'ourt clerk
under an attachnient are not prote'cted against
an execution issuing from a snperioreimrt liefore
the attaching creditor h.is obtained his judgment.
The sheritr, therefore, is justified in seizing such
goods, but (jtua-re, if the seizure were illegal,
whether an action on the ease would lie at the
suit of the attaidiing creditor against the sheriti"
and the plaintitl' in the exeeiitioii. Fraiirii v.
liroirii, 1 1 Q. B. .''mS.
One \y . devised all his jicrsoiial estate to three
trustees, of whom his widow w.is one, in trust
to call in and convert the securities into money,
and when received, to invest the same as they
should think best, and p.iy the interest and pro-
duce thereof to his widow during her life, for
the maintenance of herself and his chihlren.
The widow, after the testator's death, remainetl
on his farm and in possession <if the stock and
jiersonal property, some of which she sold, anil
the stock had been added to by breeding. A
writ of execution came into the sherill 's hands
.against her, and while it was there, the two other
trustees took from her a mortgage of all the per-
sonal property for advances made by them to her.
Tlie siierill afterwards seized under the writ, and
the two trusteea forb.ade the sale ; but it went
1423
EXECUTION.
1421
i*;^;;;.
oil, .aii<l oiu' (if them liimglit tlic goods, and took
ii liill (if sale fnnu tlio sliiirid', iiyaiiist whom tliey
then brought lu; iictiou for thu seizure : — Hehl,
tluit tlie iiiereiiHe of the stoekmust he suliject to
tlie same rule as tlie stock. Semblu, that the
projierty was lialik: in tlie widow's hands to the
execution, which, for all tliat aiipeared, might
have heeii for a debt contracted for the sujiport
of herself and family. Peem et nl. v. CutTitll, 11)
(,). I!. :.'2<J.
Upon an action brought by a sheriflf upon a
mortgage seized by him under an execution in a
suit, Sinitii V. Tjawreiice, tlie mortgage being
made by H. (the defendant) to Lawrence: — Held,
that a judgment creditor may take the goods of
a deceased debtor in the hands of the executor
upon a li. fa. against goods if the judgment was
recovered witliiii a year before the debtor's
death ; and that a plea admitting the death of a
testator subseiiuent to the issuing of a veil. ex.
and (i. fa., and while it was in force, but claim-
ing that by the deatii the property seized became
Vested ill the personal reprcseiitativea of the
dece:ised, and was not therefore liable to seizure,
was liad. .S'wif/i v. Jlrn,;<; 10 V. V. iMS.
Plaintifl', on .Slst May, 1S(!1, purchased and
paid for a carriage from one 1''., a carriage maker,
forS'17i'>, but did not remove it from the shop.
Shortly after, iilaintitf's wife saw aiiotlier car-
riage in the course of buildiug which she pre-
ferred, and it was agreed that the jilaintift' should
have it if lie chose upon jiaymeiit of an additional
sum, the one tirst purchased to be his if he did
not take the other. At the time of the sale, the
defendant, as sherill', held an execution against
the goods of I''., of wliicli he (l'\) had notice, and
another one Mas placed in his hands subse-
(pieiitly to the sale to plaintill'. F. carried on
business as usual, ...itwithstanding these ex(!cu-
tioiis, and an actual seizure did not take place
till the nth of .luiie, KS(!1 :-Hehl, that the
plaintitl', having left the carriage in the vendor's
liands more than a rc.isonable time for the re-
moval tliereof, the s.ile came within the provi-
sions (if the Chattel Mortgage Act, C. S. U. C
c. 4.5, and thi^re Iieiiig no dc'livery, followed by
an actual and continued change of possession,
nor any bill of sale liled, in accordance with that
act, the ]ir(iperty remained in K. 's hands, liable
to seizure. Semble, per i)raper, ('. I., that had
plaintill' removed the pid])erty at the time of
sale, the siierifl' could not have followed it.
L'lirrullii rn v. I}ri,ii,,ltl.<, ]•_» C. 1'. otHi.
Though a sale of land may be fraudulent as
against creditors, still where the evidence shewed
that the execution debtor (the vendor) had not
raised the crops, the subject of the seizure, or
furnished the means of doing so, but the labour
and means had been KUitributed by the vendee
alone : — Semble, .1. Wilson, .)., diss., that the
crops \Nere the sole iiiiiperty of the vendee as
against the execution creditor. Kilhridc v.
CiitiicrdH, 17 C. r. 373.
The iirojierty of a woman married beforr the
4tli May, I8.'>!(, without any maiTi.age contract
or settlement, is protijcted as against creditors of
her huslfand whose claims were contracted a/tiT
4th Mav, 1S.")!>, and not otherwise, liommui v.
Ciirnif/'nr.H, 10 J.. J. i.'!M>.— C. L. Chamb.— A.
Wilson.
But whore a aeizurc for debt contracted before
the 4th May, 1869, was not made in the lifetime
liand.
His interest, however, iiiuh^r tiiu .st;itutc as
husband surviving, and that interest dulv „«
held to be liable to the excoution, //,, ''
.5. Fniuihilt lit Hi iiinnil.
A declaration charging defendant with wilfuHv
and fraudulently taking away and sicictiii" th'
goods of one F., against which g is ti](; rl-ij,,.
tiff had placed an execution in the luiiidsiiitii.
sheritt', so that the slieritl could not ili.si.dvirtlie
same, or levy, &c., averring kiiowlcd^re of tlie
facts in the defendant, sluws a gmii'l caiisu ,,(
action at common^hiw, though not iiiiilci',1 Will
IV. c. 3, s. 8. Yuaiiij v. J!iir/iiiii:i/i, (i C. 1'. ilS
A writ against one McK. liaviug liccn uVm.,]
in the shcritl's hands, the defendant in this
action fraudulently removed and seeritcij nminy
and goods liable ito lie seiz((l under tlie exini.
tion. In an action therefor, Held, that thffwt
that defendant removed tlu' giinds to prevent tlit
seizure, was evidence for the jury, but th;it for
such interference they would have l)(.ui tmol
Titntcrv. ri,tfer.i(>n, i3('. I'. 41l'.
In estimating the damages against defen(iaiitf.ir
such fraudulent rcniovaCthe return (if the sluritf
as to the amount made on thi^ pl.iiutitf's writ j
will be presumed to be correct, and if tlie shuriff j
should have applied other niomy-; made iiv iiim
to satisfy the plaintitV's execution, the (lofe'mlaiit i
must shew it. Jli.
(). Oilier CaiiK.
A party purchasing a crop of wheat at sJiiiriff'i j
sale may bring tn.'spass against a peisiiiiennviit.
ing or injuring it, though lie may never iwviij
received possession of the lield. Jlrifhui v.
Ci-(iirfon>, 3 O. S. 583.
Semble, that in order to mountain :v title ,13 1
vendee at a shcritl's sale, it is not neecssary to
prove an actual seizure anteeedent tn the s.ile j
and liefore the return of tiie writ. III.
Qu;erc, is the sale by a sherill' of a enip if
wheat ready for harvest, not the sale ef ,ni in.
terest iii lands, reipiiring a w ritiiig nniKr tlio |
Statute of Frauds; and if not still, tu suti>fy
the statute and mak(^ the sale legal, shenM there j
not bo proof of the delivery of the whe;it, »rl
payment of the price. //(.
{ When a sheriff, under a li. fa., sei/eil Mini S'llll
i certain goods claimed by the )ilaiiitili's :— lleLI, 1
I that the fact of one of the )ilaiiitili's laviiigj
attended and bid at the sale did net estii|ithiial
from complaining of the sei/ure of the ^'ii^uls al
their own. IJhik «7 ul. v. Gramji-, p.' (J. 1!. '.W.;
The plaintiff, as olficial assignee, sned defen-
dant, as administrator, on a iiroinissury ii'taj
pay.lble to W. or licarer. Defendant |ile,i'leill
plene administravit pra'ter gnoils net fiiliiiienti
to satisfy a judgment (lutstaiiding. I'l.iiiitii
replied, confessing the plea, and iiraycd jiiilg-
ment and his damages, fee, of assets '|iwnilfl.J
Tlio pleadings were thus entered on the r"l
m
t the i>i'(ijn;rty liav.
,iu lU'xt iif kiiiuii.Wr
!,^ was Hut liiililf to
)t' luT surviving Imj.
lult.T thf st;itHtc as
.t iiitcix'st iiiily, \vas
jutiun. y//.
/'< mural.
;f(.'iiilaiit with wilfully
vay and sicrutiiij: tlio
liich j; Is tile [ikiiii.
m in llif liumls di'thi;
•milcl nut (iisciivurtlie
1^ kii(iwU'il;,'e of tlie
hjw.s a j^iiiiil causi' ni
iiiyli Hut uuilei-.') Will,
illilKIIKIH, (i L'. 1'. 213,
w. having' '"'in \\.mA
111' ilcfcTiilaiit ill this
iMlaiid sriM'ctcil liiciiicy
ui/c(l uikIlt till.' cXn.ll.
ir, — Held, that the fact
le u'ciods tci provi'iit tk
till' .iiii',v, Imt tli;it fur
imld Imvi! liicii buizoil,
', I'. A\±
csauaiiistdcfi'iiriaiitfnr
tlu' ntiini iif tlic sliiTitf
on till' iilaiiitiU'rt writ •
iri'ci't, and if tlu' .■'lioriff I
■r iimin'ys iiiadc liy liim J
xi'cutiiiii, till' dufuulaiit 1
Vcmn.
i-iipof wheat at slii^rilT'i
[gainst a -juM'SdU i.-nnvd't- 1
"li he may iii'Vi-r have
ic lii'ld. Il<iy.h.n V.
1 to iiiaiiitaiii a tith- as
[, it is not ni'i'cssiivy t)
antiTfdint to the sale
fill! writ. /''.
:i slu'vitV of a .a'MiiHtj
1 not till' salu of auiii-
a writing uiulir tlio
Tif not still, to s.iti>ty
J sale h'^al. ^h'"!!'"'"-''" I
livery of thu wln-.it, ur j
li ti. fa., sei/i'il ami s"lilj
1 tln! lilaintill's:-Ih'lil.f
If tho iilaintill's laviiigl
luluilid not i'st"ii thdul
|si'i/uro of till' gi'i" ,
_ assignee, sueil 'h'l-'ii-j
lin a iiroiiiissory ii'tel
Dcfc'inlaiit iika.leilj
l.r goods not fiiliincnt'
J.utstaniliiig. I'l^iii''™
Ilea, and praycil jm g-i
"tc , of assets .|iiaiiilo.l
entered on the r"!lJ
1425
EXECUTION.
t ictlier with a second prayer of ini]ginei\t ^nuDi/h.'i nffi-r tin' liiHi'fri/ of' thi- irrU /n Ih
(.ir iihiiiitift s debt, &c. Tlien followed the nor iiiili/ n ri/iini of unltit Ihiiki, in f/mlc or in
U26
hirlj'.
iikTiient as f'>'' d.ainages, and a iiw^^entinn jxirf, d/t tn the ijnndif.]
!ut iiitestato died seised of lands, die,, and \ ,• c ■ i i c ii ^ i' i.i
tliat iuitsK'i>' I ■ 1 J. 1 i A li. fa. i.ssned l)efnre the return ot the exeeu-
...-.ivcr that the anionnt reeovereii nin'lit he .. . , i • , i .. i
a ir*.*"'. , , , i r c • I 1 turn aL'.amst l'ooiIh, i.s only an nrei'iilaritv, and
l,,'i,,lof t") hinds A fi. fa .against goods ^^ puvJliaser at sherill-s ^ale eann.Tt he aileeted
;,,„,„, „n lit h hel.ruary. as for daniagc'S re- i ^ }.^ j^^^^, ^j ^. ^, .^^ ^. j ,,_ ,, ,,
coveroil, wlm h was returned no goods, and on ( •' ' •'■ '
tiip •'0th Keliruary a ti. fa, lands issued, wliieh A judgment against an ixeiut.ir to recover
Mioke merely of the amount recovered. There de honis testatoris, will warr.iut an execution
liullH'en no order of reference' to tiii^ master to against testator's lands, on the return of nulla
' |.(.jin the aiiiount, nor any asseHsnient )>y a hona. /Jar d. Jcn-iiip v. liiiribl, ;t (). S. liOli.
■ ,• nor aiiv sei fa. to enquire as to goods : — I « i i • • ^ i. • i i> i . i i
urj, nor .m> -> ^' ■ i n ■ i t A. oiitains a judgment against U. on his bond,
11,1.1 on aiinheatiou to set aside the udg iielits ■ -i a. j.i • ^ ii • i i. i. < . r
Iwlili "" ''1 ! "^ , , . , . .' 1 • 1 'iiid after this assigns the iiidginent to ( . for
awl writs, that the judgment was a liiial jiidg
iuciit .wii that no reference or assessment wa.s
miui'site. JA'f"' v- Baiiimjton, 17 C. 1". 149.
H.Iil, that the writ against goods, on a judg-
nifiit of assets (]iiando, was irregular, there
hmiig I'Pe'ii no writ of sei. fa. or revivor ; ))Ut
tiiat, notwithstanding, the writ agai;ist lands
„M not irre''ular. as the record shcxveil there
assigns the )Uilginent to r. tor
valnahle consideration. ('. having issued a writ
against H.'s lands in the name of A., the court
refused to set the writ aside on the .iiiidicatiiin
of H. Cotiniii'ri'iiil lidiil: v. limilinn, (> <). I!. (i-T.
— 1'. C. — Draper.
MS nut irr
were no goods. //'.
[hill, that the jiroeeedings on the suggestion
fftfi' roi'ular, without any leave to enter such
suM'Stioii or judgment thereon ; and tin; dis-
(Wiain:i<-'S hetweeii debt and dainaoe.s were mere
ilettcts in form, and amendable. ///.
.■V return of a ti. fa. goods in the county where
the venue is laid, is sutlicicnt to warrant a li.
fa. lands to any other i.'oiinty, withinit a writ
against goruls there also ; but l>iitli w rits cannot
run together in the same I'ounty, In this c.i.so
a ti. fa. goods luul issued botli to \\'eiitwoitii,
where the venue was, and to Hastings. That
to Wentworth was returned iiull.i liona, .iiid the
plaintilf then issued a ti. fa. lands to Hastings,
,. . , , , ,, I where the writ against goods was still current,
,,,,,«, whetheT any suggestion of lands at all , ,,,„i ^ .^.j^,,^^ ^^^^ bciMuadc nmlcr it : - Held,
,js roiiiusite. Hi. , ^^^^^^ ^j^^ ,j j-.^ j.^^^^,^ ^^..^^ ii-ivgnlar, and iiiiist be
In ,1 li. fa. goods and the endorsements thereon set aside. Oawidd v. //,///.■- ,•/, '22 (,». H. .'{(X;.
the lilaiiititTs were styled defendants, and vige I . ,, , ' , 4, . ., ■
L the words being tran.sposed throughout, ! Held, alfirniing the last ca.se, that the i.ssuing
iniithechristiaiiii.imesof the defendant were also :"f -i,"- •"• l'";'\« -i.'"! •; '•''^ )'• f't- g<""ls concur-
^ gc,l:-lleld, clearly irregular l>m-i./su„ '-^-''t J' was objectionable ; but that the attcr,
T(,ViHr,r)lM!.-'.VS.- C. L.Chamb.-Arorrison. i ""t ''•■ivii'g been acted on, end be abamloncd,
and the tl. fa. lands retained. I In Onlnrio
Mi, that upon the death of a slierifl" who | Ji,,id-\-. Ki-rhi/, Kit;. 1'. Xt.
hd recovered judgment in an action on notes • . , , .. . , , .,
Icrati, fa., his pers.mal representative I , I'huntills issued ah fa goods, and on th.' s.aiue
■ i ■ - I ,\ay pliioed them in the hands ot shcnlls ot dit-
fereiit counties. Within thri!e weeks tiie writs
were at the reipiest of the plaiiitill's' .■ittoiiu'y,
and iril/i t/ii' roii.'ieiit o/'H., one of the defendants,
returned nulla bona, the other ihl'eiidant, as it
was believed, having no g Is, and the g.iocls of
}{. being claimed by another in privity with him.
Oil the return of these writs, li. fas. lands and
alias li. fas. goods were on the saiiii' day issued
and placed in the sheritl's' h.iiids. Siilisei|iiently
the alias ti. fas. goods were withdrawn, the li. f.as.
lands being left in the shcrilts' liands : -Held,
that although the same rule .•lppli(^s in the ease
of two defendants, as in the case of one, that
the goods (of both) must be exii.uisted before
Butil ttistod in the lifetime of the debtor it the lands are resorted to, and each has, tlierc-
my Iw tiken out and executed after his death, j fore, as great an interest in the due execution of
tod. IIwjvniKniv. Stroiiij, 4 Q. li. 510. j a writ against the goods of his co-defeiidaiit as
Hdd, that the death of a defendant after the | 'tM-;^"!»t ]>i-s o-(vni, before the lands are touehed ;
plucing of an execution .against goods in the ' i'*^*' '"*'''« '^"f- "• ^'""''.^ "" • }'/ ''^'T'" "* • '''
ihcn«'8 hands, did not luaL it ne^^-essary to re- ! {=""«*-'"* thereto, eompl.'uii of the return uii
Vive the juilgment .against his executors or a.l- ! '"'"''^ "'^ I" ^'"''^f j .'""■ '''[''^^ ''*^ complain .,
mistrat^irs to make ?alid the seizure under the i f'"^ T*!'"" '''' *" '" ^'?-.'';''^'"'''V'/' '"'7'"r '"
writ, of j-,«.ils which were owned by the defen- I '■''^^f '"^' .."'V.^'T^, '"'^'''^ r''\^ ''V K \" ! '"
KlZl'il "111
and not his successor in olhce, is entitled to exe-
cntinn. Difhciifiiiii v. //crni/, (I V. IJ. 170. — C.
Laimh.-I>altoii, ('. ('. ,1' /'.
.\8to sheriff's duty in executing the writ, see
Xlp. U.J7, XII. p."l4(il.
III. I-'iEiii Faci.v.s (L.vnus.)
1. Pmcticf. in Intiiimi,
(a) Dinlli I'f E.i'Kiilion Difitiditnt.
Ati. fa. lands tested after the death of defen- !
djntisvoiil. McCiifthij X. Lmr, 2(). S. ,353. |
X
f the
i d»nt at the time of his death,
Iffwi, 13 C. P. 4r.».
Tn'rwr v /^«<- i ^^ '*'** > while the latter could not object to the
return as to H., because, it was alleged, the
gooils of H. were claimed by another under a
title from him, and it was not reason.ible that
(li) ExmUion aijninst Lntuh and Goods
[}iw,hij ,1' Vift. r. ;?,■), O., fxeentinnH (njnhiKt
the plaintiffs should contest this <.'laim, pariieu-
ared to be small, when
larly as the property appea
there was a probability of realizing their claims
ml» md ijiitKh iituij inmii' at thf .innii> tinip, hut ! by a sale of the lauds after the expiration of the
rtt hmU nhaU not Im: nold in l<-n.i than twdve \ usual time. II).
90
'W
•-i;
1427
EXECUTION.
142s
DlKscTVivtions on tlio inconvenience of tliu pro-
cedure liere, hy two writs of execution, in order
to i-eiicli l.-uida, and [)rolial)le intention of 5 Geo.
II. c. 7, with reference thereto. Ih.
A jil.aintitT ounnot at the same time deliver to
tlie simii' slieriir a writ against jjoods and another
against lands, both to be acted ui)on. Tlie
lilaintitr issued a wi'it awiinst <lefcndants' L'oods
to tlic sheritl' of \V., whicli on the 'J'2ndof Aiiril,
]8(!."i,Wiis returned nidla bona, with the consentof
one of tlic defendants, and on that day ti. fas.
against lands issued to the same and to otlier
sheriti's, and an alias ti. fa. goods to the sheritT
of \V., on which latter writ lie seized certain
stock. A motion to set aside these writs was
made on belialf tlie two defendants, and of the
Bank of II. N. A., to whom they had given a
mortgage of lands on the 17th May, 18(i."), the
objections being that there had been no proper
issue and icturii of the writs agaiii.st goods,
and that the writs against lands and goods were
coiuiirreiit :- -Held, that the return of nulla
bona, if any of the defendants had goods, could
be only an irrcgul.irity, against which the l)ank
could not move, nor the defendant wlio had
consented to it ; but, — Held, also, that ;is the
alias writ against gocxls issued on the same day
as the writs against lands, and had been acted
upon, the latter writs were under the cireum-
stanccs illegal, and nnist be set aside : — Held,
also, tliat the mortgage to the bank could not
have prevailed against the writs, which bound
the lands from tlieir receipt by the sherilF. (>/i-
iai'm JJiiii/: V. Mii'irlimtl it al., Ontario Jiank v.
Kn-hij ,t III., 24 Q. U.Ota
tained, he is accountable to the execution cri
tor for the timber so cut and reiiiuved li ^ '
v.liwji;, 11 C'hy. 2.31). ' '""
3. Propi'rtii Taint.
[fict the Ailm'uMtratiaii, o/JunUrr Ah of ly
we. Jtf, (7. Mfi/.] '"'
(a) Term of Yiarn iiml llnd ('Impi..
A term for years cannot lie siil,l mi.lur an
execution against lands. Dual, ('tmrt \ Tm
.5 I). S. t)40. ■ '''"'■'
(Jua're, does a rent cliar;,'c cdim- under tli, •
Geo. 1 1, c. 7, 8. 4. Douijall v. Tiiml.nll, 8 1^1, H, o^m
A rent charge for which tluiu is ii [Kiwer „i
distress conies under tlie teriii.s lainls nr tuie.
meiitsin the li. fa. Hut not a nuiiMxiitscck //,
A rent charge upiui laml for the liff „f ti,^>
grantee is seizalile by the siicriir uiidcnui a-.u.
tiou against lands. .V. ' '. 10 i) Jj joj 'j^
.Siiiilh V. Turuhidl, 1 P. H. ;is. ' " ' '
(b) Triixl Eilati-.^.
AVhere real [iroperty is conveycl t(i tnift.rt
for sale for the satisfaction of lichts, so ;« the '
sale be made within a certain ]« riml, ainj
sale be not made within that time, un use risi.„.
back to the grantor wliicli can be taken in exivu-
tioii for his debts under the Statute of FrauiUJ
lkn' d. Latira.wn v. Tln' Cuiaula Co., HO. .S. 4241
Testator, after giving certain lands to his rjiil- 1
dren, C, W., & .\1., devised to his wile ull the)
, , 1 If 1 . .residue of his lanils for life, and after her .loath!
^TA.l !,! .'.!''.';.,\/uy.!''.*L 1 V^^^^^^^^^ ! *•"= «'"»^' ^'.'.}>y ^■'••••'".V 'Hvlded among all Im
insist that the goods of the others shall be ex
liausted before a writ issue against his lands
yua'i'e, whether this application could have been
entertained on the part of the bank. Semble,
not. III.
The crown may issue a li. fa. for the sale of
lands and goods in order to satisfy a tine im-
posed ; and the person lined may be said to be
indebted, and the line to be a debt, linjina v.
Till- JJixjariliii^ Canal >:v., 2<J Q. B. Ki.').
Lands aii<l goods may be included in the same
writ, and it may be ma<le returnable before the
expinition of twelve months, the crown not being
bound by 4;t Geo. 111. c. 1. Ih.
2. 'I'inii' iij'O/H'rallon.
Lands are bound only from the delivery of the
writ against them to the sheriff, and a judgment
is no hen upon them. />(«'<!. Auldjo v. lIolliMir
5 0. .S. 73'J.
Land not being bound by a judgment for the
purpose of sale, under the .T (!eo. II. c. 7, but only
by the clelivery of ti. fa. lands to the sheritf, the
time of such delivery must be proved by the
purchaser under the sheriff's deed. Doe d.
Buruham v. ShiiiiiniiK, 7 Q. B. 19(5.
A lease of lands made by the agent of au exe-
cutor, after delivery to the sheriff ot a fi. fiv.
lands against such executor, will only convey
an interest subject to such ti. fa. Sloan et al. v.
niialiN, 15 C. I'. 310.
Where the owner of land sells the timl>er upon
it, after a writ against his lands is placed in the
sheriff's hands, and the purchaser cuts down ami
removes the timber before au injunctiou ia ob-
surviving children, except said ('., W, i M., I
share and share alike. A patent was alterwanljl
granted for the land in ((Uestinn, with (itkrj
lands, to the executors of his will, to holil iii.inj
the trusts contained in it. 15ctiuv any ilirisidn,!
while the wife was alive, a li. fa. issued ai'aiiist]
one of the residuary ilevisces : -Held, that the!
defendant in the writ had no interest which ei.uU|
be sold. MrLiaii v. Fislur, 14 (^i. 1!. (117.
Held, that land conveyed to school tnist«sl
for the purposes of a school, cnulil not he sj.lj
under execution against them cui a juilj,'nit'iit iil)-|
tained for the money due for liuildiiu; thescli'Hil
house. Sri>t/ V. Till' 'I'rir^ins nf I'liimi Sfiml
Section Xv. J, in yj///v/e.<y, dr., l!l(,i. li. iS.
(c) Land,'! in llmnh nf Ihf Ihir.
A sci. fa. will not issue against an heir uiKitrl
the .'i (ieo. IT., although an exeeutinii may Lave
issued against the goods ami chattels in the haiflll
of tlie auininistrator, and a return of nulla h*
has been made. Pnti'r.ton v. MrKni/, lay. 43.
A juilgnient on sci. fa. against 15., tliohtir
the deceased owner of the land, and a fi. I
thereon awar<ling the sale of lands of whi
deceased wiv* seise<l on a speciliecl day, jireviui
to which lie had died, will not sustain a ptii
chase ; and the sheriff's deed gives no titli
Varcy v. Muirhead, Dra. 48t).
(d) Equity of Jicikmptiun.
[See C. L. P. Art, .s.s. ..',5?, ..'.->:), 27 Vict. r. l-l]^
An equity of redemption of an estate i
inheritance :— Held, not saleable uuder commo<
U2S
the I'Xijciitiiiii urcli.
il ruiiiuvud. Briiini
Tnkeii.
Jii.tiiir Ah t,j ]oi;j|
,1 llnd Ch.inf.
it 111.' siiM uinlcr an
[)(m1. ' '"iirt V. Tnjyt,
'^(! ciiiiu' uuikr till-
.y»ni/i»//,8Q.lU,M
I tlicii; is a iiiiwiT ui
tcrin.s lauils or Uuc.
. a latMv; I'uiitscck. /'/.
i<l for the hfe of the
ihcritV uiiilei'iui txivu'
. 10 (,t B. I'Jl. .\c
. ;is.
< coiiveyi'il to triistifj
(in of ilelits, so ;is the
•i'i't;iin lieriiiil, luul thi'
hilt tiiiu', Mil iisu rtsulti
II eaii lie taken in cX'rn-
the Statute iit l'rau4-.
(.■(i«.i.^((.V,(lll.S, «i
•ertiiiii lands t(i liis 'liil-
iseil to his wile ;ill the
ife, iiinl after her death
ilivideil anicmg all hii
opt said ('.,\V„&M,
A \ialent was afturwanli
11 iniestidil, with uthefl
,f his will, to li(il<l uj.inj
.t. I'eini-e any ihviiiiiB,!
, a li. la. issued agaiustl
visees ; -Held, that the!
1 11(1 interest wliichwuUJ
/(-/•, u <i r>. HIT.
jved to selioiil tnisti**!
Iioid, eiuild n.it lie S"W|
them nil a ,iud;;mcut "b-l
f.irlmildini.' tlitseli'..ll
,;l.<Uf.-< ul' VW'V .S.-/i'r)J|
IS .(■'•., I'.K'.li. 28.
mnih (if III' Ifi'n:
lie against an lieirmi'letj
I an exeeutiiinmayhjvtT
land ehattels ill tlioliau'll
II a return of nulla 1-ui
l„ V. MrKiiij, Tay. 43.
against li., the heir ol
J the I'Uid, and a tj. »-
lie (if lands of wliioh tin
I siieeilied day, lirevion*
will not sustain a W
|s deed gives uo tiUflj
48G.
lii(hm})tkin.
{57, .-'•'.'*. 2J' '''«'■ *■• '''■'
liptiou of an estate c
Isakahle under comiaM
U29
EXECUTION.
1430
\iuiimty o! reiieiiiiRKiii in
i„,n,,tliiso!d on an exeeution.
\^,"r,i:irnil'l, K. 'I'- -'Viet.
i.iuire, whether an ciniity (if
]'l„,lil interest is .salialile uiiiler eciiiiiiiiii
prtK-iwi. M'-/>"'<"''l V. I!cynvlil.s 14 Chy. (i
;,, iir-iceM. Simj)»on H nl. v. Snn/lh, 2 O. S. 129;
li.i'.''
, purchaser at slicriflf's s.ale of lands R(d(l
n'kr a iudgineiit ami exeeutiiin subsoiiueiit to
•....rtLiL'e in fee liy the dubtor, caiiliot recover
jupiiist the nmrtgaycc in iioSHcssioii. Due il.
I gUir'lm V- Pi'-l-ioii, 2 O. S. 292.
lity of reileniiitiiiii in a term of years
Do, (1. W; U,r
ihiere, whether an eipiity of redeiinitioii in a
niiuoii law
(i'JI.
(hu't^ gave a mortgage, on wliich a covenant
Viv .luc S. was eiidoi-seil as seeiirity for the
interest. C having made default, the niortga-
iprs n'eiivered judgment on the niortgage, and
Itnilerali. fa. lands sold (".'s eiiuity of redeinii-
'tji.n. S. having lieen ealled U)i(in under liis
l(„vtiwnt, his exeeiitur «ued ('., the mortgagor,
linthisaetiim, lor indeiiinity : — .Held, that under
I the t'aets as stated, the s.ile of the eijuity of
I K.kini'tii u did not ojierate as a release of the
|m'Tti;aL'i'r, nor of in. surety, nor of defendant's
Jihtv to iuileniniry his surety. Stiinirf v.
llt.rijSC. 1". 203.
A. made a nmrtg.age of lands to Z. ,and the de-
I'lij'uit, .and the defendant assigned liis interest
Itiireiu to Z., eoveiiantiiig liy the same iiistru-
ijuntiiTtlie imnetiial jiaynient liy the mortgagor
..nehalf of the iiniuti[ial ami interest. To
laeticu lifought Mil this ooveiiant by the exe-
Intors I'f /., defendant pleaded that a judg-
mthid liecn reeovered against tlie mortgagor
said mortgage, for tlie benetit of Z., who
ilteinards clevi.sed all liis real estate to the
liutilfs. and that the eijuity of redemption
tarinL'lieen duly .^idd under said judgment, was
MKhl^ed liy the iilaintitl's as such executors ami
Idmsees, and conveyed to them by the sherilF,
^herehy the debt lieeaine .satisHed, and defeii-
int w;us disch.irged. In another plea it was
cil that the ei|iiity of redemption w.as pur-
tdliy M., one of the plaintiffs, and the con-
Kvuice thereof taken to him for the benefit of
^>elt and the other plaintitl's, as aucli executors
ttt devisees:-- Held, 1. That the plaiutids, .as
fcti,<«'s of '/.., were a.ssigiiees of the mortgage
lithiii 12 Viet. e. T^i, and that the purchase by
fctuiiif the eiiuity of reiteiiiption must have the
He effect ,^s if it had been by Z. in his life-
linf- ; '.'. That the ett'eet of the statute was to
wk a siitisfaction of the mortg.age, though the
i\ivisioii is iiurely that the mortgagee, &c.,
kjin,', shall give a release to the mortgagor ;
ihL Stiiilile, that the defeiid.anC instead of set-
ing I'lit the facts, niiglit li.avc pleaded ji.ayment
I the onhiiary form ; .S. Th.at npon the facts
htetl ill the second plea, the case must be
Ikinl iiimii as if all the executors had been
mhastrs ; 4. That the mortgage being satis-
delcndaiit was also discharged from his
fcvenaiit ; and therefore that tlie second plea
yiiiohwiis demurred to) shewed a good defence.
r-finif,l„l. V. .1/;//.^ 20 Q. B. 51.
[IVfendant, liciiig the owner of certain pro-
, nuirtgagetl it to a building society. The
intiff, with two others, having recovered a
Wpnent against tlie defendant, sold under a fi.
'^linds the premises iu question which the
intiff purcbasetl. Default liaN-iug been made
in the mortgages to the buihliug society, they
advertised ami sold. Upon ejeetnieiit brought
it was eoutemled that the niortgage ami salo
by the liuilding society preveliteil the saU' under
the ti. fa. from operating : Htdd, that tlie salo
under the H. fa. pa.ssi'd all the interest, both
legal and etpiitable, of the inortgatror, and that ;u(
against him the iilaiiitill' was eiititlcMl to ti-eover.
Fiiknt V- ^/l•^fldl,■lt, 12 ('. I'. S.").
(i)ua're, per fiwyiine, .1., wlieth -r an diiiity of
redemption can be sold iqioii an execution issued
upon a judgment recovered at the suit of the
mortgagee, in an action upon the covenant con-
tained in the mortgage for the payiiiiut of the
mortgage debt. ]'iiii\(inii(iii v. MiCurlii, 20
C. v. 42.
A term of 1000 yeai's was executed by >v.,y of
mortgage, and subsuiiueiitly the interest of the
reversioner was sold under an cxecullon agaii;st
his lamls. Upon a bill tiled by the iiiortgi.gor
to redeem ; — Held, that the sale by the .slierilF
did not carry the eiiuity of rcdoiiiption, and that
the mortgager was entitled to redeem, ('/li-ihulni
V. Sl„l,h,ii, 1 Oliy. 108.
Quu're, whether a sale by the sherilV under r«
fi. fa. .against lands of tuu ieversioii, altera term
<if 1000 years h.ad been created by way of mort-
gage, carries with it the right to redeem the
term. .S\ C. 2 Chy. ITS.
The (juestion was subsecineiitly decided in the
aflirmative by the Court of Appeal, lilakc, V.C,
diss. S. C. 3 Chy. 0,">.").
Upon a judgment obtained against the execu-
tors of a mortgagor, a writ against the lands of
the testator was sued out, under which his
interest in the niortgage premises was sold ; and
afterwards the purchaser at .shcrill's .sale ob-
tained a conveyance of the legal estate from the
mortgagee, all which transactions took place after
the passing of the 7 Will. IV. e. 2, (IS.'iT) :--Held,
tliat the devisees of the niortgagor were entitled
to redeem. Wiillaii v. Jiirnmil, 2 Chy. 344.
Qiuere, the effect of a sherilUs sale to a subse-
(lueiit incumbr.ancer of an eijuity of re<lcinptioii
in real estate of a partnership, where the execu-
tion was issued against all the partners ; but one
of the defendants had died after judgiiieiit and
liefore execution, the judgment not having been
revived, and such sale having taken phiee pend-
ing a suit by the first mortgagee for the fore-
closure of the mortgage. BiuUr v. Tarnlmll, 2
Chy. r)21.
12 Vict. c. 7."?, making cijuities of redemption
saleable under legal process, does not apply where
the mortgage is created by a deed absolute iu
form. MrCiihf V. T/kiik/i^hii, ti Chy. 17.'), fol-
lowed in McDumild v. MrDomll, 2 K & A. 303,
AViierc the interest of the debtor was a life
estate, which lie had conveyed away alisolutely,
though .as a security only : — Held, that the st.a-
tute for the sale of equities of redemption did
not apply, the right to redeem not appearing ou
the face of the conveyance, ami that the salo
could not be supported. FilzqibbQU v. JJid/gdn,
11 Chy. 188.
Where land mortgageil is sohl by the sheriff
under the 12 Vict. c. 73, the purchaser ac(iuire3
only the title of the mortgagor at the time the
writ was delivered to the sheriff, not at the time
of registering the judgment. ■l'e(jije v. Mttcalj'v,
5 Chy. 628.
':'!
:
:•!
' ; U
^i. i
wwrn-
i,\ . I' ''I
iiai
EXECUTION.
U:)2
tcrt'd ipviiir tn
20s., nil paitii's
A judgmoiit (.'I'l'ilitiir imrclinNing an cMjuity of
rc<U'iii|>tiim ixt slRi'itl'w milo, ciiiiiupt sut \i\> liia
rpgistcrcil jii(l;,'iiu'iit ;ij,':iiii.st a iiKirtf^ago iiuule
J)i'finv tlic iiilivciy (if tlio writ to thu HliurilF. /'*.
QiiiiTf, wlictlior a stranger inircliasing the
preiniHt'H would not Ix- lionud to pay off juilgment
aH well UH mortgage liclits, as forming togutlier a
IMPition of the iirioe of the land imrchased. //'.
'I'iie owner of lands eriated two mortgages
thereon, after whieh his interest therein was
Bold under a 11. fa. issued upon a judgment regis-
jirior to lioth mortgages, for the sum of
iH'iiig undei' the impression that
the lands were sold sulijeet to the two mort-
gages. Sulise((Uently the ]i\irehaser at sherilF's
sale liongiit \ip the first mortgage, whereupon '
the holilers of the .seeond mortgage liled a liill \
against him, praying i-edemjition or foreclosure,
on the ground that the purchase of tlu? eipiity of
redemption at shcritl's sale liound him to dis-
charge lioth mortgages. 'I'he court at the hearing
refuseil this reliL!', and disniisse<l the liill ; Imt,
owing to the uncertain state of the aiithorities
on the point as to the efl'ect to lie given to the
registering of a judgmi'ut, without costs ; and
witli leave to lile a new hill impugning the sale
un<ler the li. fa. ; or a decree of redemption would
lie ]iron(Uinccd nprni the sulmiission to that ellect
cont.iincd in the answer, if the plaintitls desired
that relief. Jfciik nf Mnutridl v. Tlniiii/iM))i, 9
C'hy. ")! ; allirmcd on appeal, 'A E. & A. 239.
TTeld, reversing the decree of the court below,
that the 1-J Vict. c. 73, s. 1 ((". S. I'. C. e. 22,
s. 2.")7), which authorizes the sale under execu-
tion of an equity of redemption, apjilies (Uily
where the execution is again.st the mortgagor
himself, and on an execution issued against his
lands. — Ksten, V. ('., diss. Bank <ij U. V. v.
BmiKjh, 2 K. k A. i)\
Held, in accordance with the last case, that
an etiuity of redemption in lamls is not saleahle
under an c.xetution issued against the executor of
the mortgagor. Loirill v. Jiaiik iif U. C, 10
Chy. .-.7.
[Ihit see, now, 27 Vict. e. 1.3, s. 1.]
The 27 Vict. e. 13, 1S(»3, after reciting that
(loul)ts had arisen as to the meaning of ss.
2r)7, 2,"),S, and 2.".!l of the C. L. V. Act, enacted
that "whenever the word 'mortgagor' occurs in
the said sections, it shall he i-ead and construed
as if the words 'his heirs, executors, adminis-
trators, or assigns, or persons having the eipiity
of redemjition,' were inserted imnie<liately after
such wiu'd 'mortgagor:' " — Held, that the enact-
ment, c. 13, was a declaratory one; and where
lands sulijeet to a mortgage were .sold hy the
sheritt' under execution in ;'. suit against the exe-
cutors of the mortgagor, and conveyed by the
sheritV to the jiurchaser in October, 18.58, the
court held this sale validated by the statute, and
that the heirs of the mortgagor could not im-
peach the same. I'roudfoot, V. C, diss. Held,
also, that 27 Vict. e. ],">, dicl not affect the ques-
tion. McHrqi/v. Chnu-, 21 Chy. 515.
Where two mortgages had been created on a
leasehold interest in rectory lands, the equity of
redemption in ■ which was afterwards sold at
sherifl' s sale under common law process, and the
])urchaser paid oflf the prior mortgage : — Held,
that the purchaser, being bound to protect the
mortgagor against both the incumbrances, could
not keep alivo the prior as against the seto 1
mortgage. Mrlhmnlil \. /?i'//),,, /,/.>■, 14(1iv'i;m
In such a case the purchaser, u|iiiii tlio ix,,;,
tion of the term, obtained a new le.isc frmii tl
rector and created a mortgage on smli iii>« x,.jj.
—Held, that such new lease was a nicn- mft I
upon the original one, ami as such wa« suliipitt,
the mortgage which had been Kit Hutstiiii,|i„j!
but as notice of that fact couM imt, uniLrtte
circumstances, be imputed to tlic iiii,rt'':ir,f „( J
the' new term, lie was declared eiititiiif t'liri'
ority. ]h.
'Where several lots of laud arc iii(irtL.'.'i!;i-,l t^j
eipiity of redemption in one or siiincdf tlifiiiM;,-
cannot be sold under i^immon law ja'iKvss; ain
ScndiU': that where lands in (Ulleivnt oiiii'i;i..it
are mortgaged, the e(iuity of reileniiitii.n oiinnij
be sold under execution at law, aiiil lan mil.
reached in equity. /fimiri/ v. H'o//', «./.,, 1} I
("hv. 188 ; followed in ]'(iiiyi'ri,i,(ii v. J/.r,,,',
'20 C. P. 4-2.
An estate subject to mortgage wa.s il(vi.,,l|
to several parties, and after the iUiith ni tliJ
testator the party entitled tothr niiirtL,'ii"niiMi:(T|
procured the land to be sold umler cxtriitidii j'J
law:--Held, following llcMard r. W.ilt\iiil,n,r
14 Chy. 188, tliat the act aiithori/iiii: tin- sa!( (,f|
e(piities of redempti<in di<l not ajiiily : thiittlief
sale under execution was inoperative, mi'l tb3
the parties entitled t'l the eciuity ot' nikini.ti.ii
had a right to redeem ; liut, tiiat uinkr tiJ
circumstances, the person represciitiiig tlir v,-. n\
gagee was entitled to be allowed fer iinHMve.
ments. Shaw v. Tini.^, 19 Ciiy. I'.Hi,
The e(piity of redemption in iiiii.tL;:ii.V'i
was ottered for sale under execiitimi at l.iw, ,in|
the mortgagee bid oil' the piniiei'ty at i^id)!
but the sale proved to be iiiu|i(iMtivu :-Hrll
that the mortgagee could not add the aiinniiit J
paid to the amount of his ninit^Mge dilit. /'i
V. Fcri/undii, 14 Chy. 2.'U).
A debtor executed two mortgages, wliifb wei^
in different hands, a portion of thu lainl
prised in one of them being eoininisnl in tK
other, and his interest in all the l.unl was
under execution :-Held, that the sale wii i
valid. Woud v. Woml. 1(! Cliy. 471. Steals
Donovan v. Bacon, 1(! Chy. 472, imto.
UiKler C. S. U. C. c. '2% the sheriff cannot s
or convey any interest, if there is a sucuu.i lu.i
gage outstanding in the liaiulsof ilili'eiviitpartit^
lifKi-enan, SChy.Chamb. 2S.">.- Taylor, /,Vm-.|
Where a first mortgagee aci|nirccl, as he ivi(
tended, a title throi.j^o a purchaser at slurilf
sale of the eciuity of redeiniitioiini' theiiii'rti[,ii;«j
premises, there being mesne iiRiiiiiliraiiics, i
was held that he did not acquire thu lee in t
lands, the sheriff not having power tn sclL /f
The principle established hy tlio ms
Donovan r. Bacon, 1(> Chy. 472, and lIeKnii.ii
3 Chy. Chanib. 285, that tlie equity cf x<\m
tion in mortgage premises is net saluaWt uiiiji
execution where the same arc .siil)juut t" stverj
mortgages in the hands of several iiKirtjfitW
does not apply whore the iiiiirt_i,'a!:es are I
several owners of distinct porticms nf theiitaa
and the same arehehl by one and the same m"'!
gagee, or are in the same hand, /.'"''i'""' t
Culbertwn, 22 Chy. 4()5.
The equity of redemption in mortegcd pil
mises was sold under execution at hw, ■mJI
JU:'
U32
' as .'luaiiist the nx(.jt,\ \
nniiiulJ.i, 14('liy.r,!il.
luiHor, u|"iiitbfcxi.ira.
I a now IfiiHc tr„iM itj |
i,'agcnusiiilint'wtrrii::
L'lVHo wiis a uiiTi' graft 1
I us MlR'li wa!* sulijertto
liL'L'ii U.l't 'mtstiiiiiliii^;
.•t (■(lulil Hot, niiiliT tfie I
L'J to till- llliilf,';i^HM.i
L'l'larcil iiititli'l tiijin.
laii'l ar»' iiinrtL'aL'ul. thej
III' 111' siiiiicnf tlii'in 'iiilr
iiiiiiu law ]vri"\'s?< ; aiii'i,
lis in ililVcrt'iit ciimi;i,ji
;y i>f ivik'niiitii'ii i;;u'.ii"t|
at law, and can "ulyl^l
I inii-l V. \\'nli:„.l.,\ |(|
'(III Xl'I'lllKIl V. ,l/.''.r,-',
> niiiitgaj^f w.u iltvii?.ll
aftii- tin." lU'utli lit tliJ
,>il to tllr ni(irtu'ii;iiMiiHi;iT|
: sdlil tinili'i' I'Xtiaitiuii M
IK'wai'il '•. Wnlii'iulii,
L-t anthiiri/.in'.' the salt m
iliil nut apply : thattlJ
as inn|n'rativi', luiil thiH
tlio t-'iniity lit' ri'iUiiii.tn
in ; Imt, that iiinlir tw
on rt'iircsontiiig tin i::'rt^
1)0 ailiiwcil fur iiiii'iiivi.
, IDChy. t'.lt;.
ijitidn in niiii'ti;aj:i.'t WJ
ik'T fXfcutiim at l.w, ml
V tho iivui»'i'ty at siWJ
III lie inuiicrativu ;"Hrll
ilil lint adil tlio aiiummi^
1
!:(0.
U33
EXECUTION.
1434
lis nmi'tgago ili'lit. /'■
i)iniirtyaL:i'S, wliichweij
irtion of tlif laiiil
lioiiiL' I'niinirisi'il inthi
m all the laii.l was*'
1, that tho sale was
U; Chy. 471. Steal!
:iy. 47'.', niitc.
'22, the sheritY cammt stj
if thi'i'i.' is a suciui'liuir'
lands of ditiViviitl'artita
nil. 'JS^.-'rayliir, /.'•/"■'
li^oc aciiniivd, a.s W O''
,7 a pnroliasi'V at slitnS
.I'llllltinnnf tllfllliirtiSi:'
nifsno iiRniiiliiaiiw-.
lilt aui|uiri; the lee in tl
lavilig piiwer to sell.
ilishud 1)V the casj
'hy 47'.', aii(lUoK««
lat the eiiuity lit' rvlm
Los is 111 it saleabit v.ii.l(
line arc siihjeet t" seve
Ills of several iwrtg^^
the iimrtgageJ art
lict liortiiilisiiftlieeital
l)y one ami the samel
|j«Hiie luuiil. ll'^l''''
[ption in niortL-agcl pi
Texeciitionatlawi.w'tj
Iconvevaii'-'e thereof exeeuteil liy the sherifr jmr-
rtiiil' to cniivey the same to the imrehaser,
li'liiisii^iseinuutly liaiil oil' the murtL'age, olitivinetl
I tniiiitlie niiirtgagee a statntmy ilisJliarge thereof,
1 ill lie caused to lie registereil, and went into
';ssiiiii of the niiirtgageil lu-oiierty. In a pro-
at law, the sale liy the sheritY was de-
id in ciinseiinenee of the invaliility of
iider which he hail iissuineil to sell : —
fl
I pii*'eS!
IcwlilM
I clareil viiul
I ,ln, writ under wluen lie
1)1.1 1 tiiiit the imrehaser was entitled to riistrain
' tut liiiinght liy the niiirtgagor. //«»■''.< v.
inortgaL'ee'8 interest in the nmrtgageil jirt'inises
cannot lie sold nnder an e.xeentinii against l.iiida.
/)ii<' d. C'uii/ilir// V. '/'/luiii/niiii. \l. T, (I Viet.;
J'arh- V. l{U>!i, 3 K. & A. •Jl."i, 'I'M.
Held, that the statute 1.'} Kli/. e. ."i, extends
I only to the assignment of sm h thing . as aro
I liable to be taken in exiTUtion, and that a mmt-
I gagee's interest is not so lialile. I.nilur v. ' '/v hih-
I tun, 9 C. 1'. 205.
lejei'tmeii
See .y. C, at law, Li'f v, Jlouvi,
I/,,, I7riiy. 4.V.>,
Viniirtgage hy devisees suliseiiueut to a writ
Iviiast the testator's lands in his executor's
liji,,!, l,eing delivered to the sheritF, does not
Imvtiit tlie'sheriil' selling, Jiihiixtuii v, Suwiliii,
|l9Cliy.-'2-l-
A.^iiitwas instituted uixin a mortgage .against
|tliia«ii,'ue'e in insnlveney of the iiinrtgagor, and
(iiiiiiin.eeiliiig in the master's otliee it ainieared
thil there were creditors of the mortgagor win.
lultseoiitiiiiis in the hands of the sherill' at the
iniHltlie assigiinient in insolvency :—Hehl, on
jwumI friiiu the ruling of the master, that it was
^MKt t.i add such creditors as parties in his
ofa ('iiiii"l" ^■■'iii'l'^^'l Cmlil Co. V, McAHUler,
5U'by.593.
Tbt [iriiieiiilo on which an e(iuity of redemii-
ioiiisfiiiiui'ed is relief against forfeiture; and
ttfciiiiity i.s not to lie allowed where the miirt-
ij^vclias lieeii guilty of no miseiinduet, and from
Itke licaling.i of the parties the allowance would
fiirk injustice, though twenty years have not
|(h|i5fil since the right to redeem .icenied. Sl:af
i%ii„iiiiii, •2\ (-'hy, ")34,
\\\iK a mortgagee had bought an eijiiity of
•.■luijtiuu at a sheriU's sale, the sale being
iliiseilhyall iiarties at the time to be valid,
ltk:li in fact invalid on technical grounds ; but
ot ^cvt•llteell years before the tiling of a bill t(i
(f) Reremoxiii'i/ Intii'iit.-i.
The interest of a reversimier may be sold dur-
ing the lifetime of the tenant, for life. Dm: d,
C'diiirroii V. Jiolnii'iiiii, 7 (). 1$, .'J.'t.'i,
A term of one thousand vears w.is created
by w.iy of mortgage, an I sulneiiueutly the in-
terest of the reversioner w.is sild under an exe-
cution against his lands. I'limi a bill liK'd by
master's otliee it" a'Jiiieared | tl'tJ mortga^'or to redeem : -Held, tliit the sale
by the slientl' did not cari-y the ei|uity of redemp-
tion, and that the iiioitgagor was entitled to
redeem. CIiUIkjIiii, \- . Sin lilm, 1 Chy. 108.
Qil:ere, whether a sale by the sheriir, under a,
tl. fa. against lands of the reversion, after a term
of one thousainl years had been created by w.iy of
mortgage, carries with it the right to redeem tho
the term. .S'. C. '1 t'liy. ITS.
Tho (juestion was siibse luently decided in the
atlirmative by the Court of Ajipeal, Blake, C,
diss. S.C 3 Chy. (("m.
Held, by Esten and Spragge, V. CC, that the
purchaser at sheriff's sale of a reversion in lands
mortgaged for a term of years, is .ititled to re-
deem the mortgage for his own lieuetit. W'nti rs
v. Sluul', 2 Chy. 457.
Before eipiities of redemption were by statute
made saleable under e.xeeutioii, a sherill" might
sell a debtor's reversionarv interest in the fee,
Wiijlit-
lidu Siiles and re-sales had been made from ! subject to a lease for one thousand years
It til time of various portions of the property, ""<" v. F'ulih, 19 Chy. 550,
tile .asswiiiptiiin of the sheriff's sale being
il ; liiiiklings had been erected; some burnt
houses built for
Eowu ; new buildings put up
tne liiiriKise altered to suit otlier purposes ; other
ijis ami imiirovements thereon made ; fields
eiiimuiiii being converted into sites for
toils, hotels, a bank and other places of busi-
Sj, am! into gardens and yards ; all being done
ritli the cognizance of the mortgagor's heir,
bhofnr ten years of the seventeen was aware of,
tblre.isoii to suspect, the defect in the title
i tlic ittities ; ami his bill was not tiled until a
irjc iiustcuied debt of the mortgagee ai;ainst
4e niiiitgagor, greatly exceeding the v.ahio of
eiimiierty when sold by the sheriff, had been
Btlawuil, and until the jiersons interested in
biitiiig the plaiiitirt's claim, and made defen-
pots to the suit, luunljored nearly one hundred :
hHdil, that redemption would be inequitable,
1 the bill wiis di.siiiissed with costs. 1 b.
I The effect in such a case of the 36 Vict. c. 22,
p.. living a hen for improvements, remarked
111.11. //,.
(c) Intfre.it of Mortgagee.
[After a mortgage iu fee has become forfeited
aoa-payiueut of the mortgage money, the
[Jii/C.
S. U. I
(g) Othir Prupcrfi/.
00, K. It,
nil/ I'-itnti' ur nileresl
ill Innil which, iniili-r -tic. •<, iiini/ I"' cijiicfijtd or
(issiijiied liy any pin'ty, ■ihaU, he llnhle to .iviznre
ami sale iimlcr i-xecution aijainut m(h party.]
[■S'c''. .7, I'lm^ts that a I'lintiiiiji'iit, an caciilory,
ami a future iiitire<t, ami a /nniiliilil!/ roii/ilnl
with an intercut in aii;! Iimd, aUu a r'njht of viitry,
whether iiniae'liate or fiiUire, and irluther rifnteil
or coiitimient, into or ii/ioii any land, may lie di.i-
posed of hy deed.]
[C. L. P. Act, sees. 257-250, prorides for the
sale of an ei/iiity of redemption. These jiroi'isions
seem to reh r .^el'eral of the foUowbuj derisions of
no practical ralue.]
Semble, that where a plaintiff has taken a fi.
fa. against lands and tenements belonging to a
defendant in several districts, tho court woukl
interfere to prevent more of these lands being
sold than would satisfy the plaintiff's demand.
McGill V. McKay, Tay. 88.
Lands and tenements held in fee simple l)y n
debtor at the time of his decease, may be leg.ally
taken iu execution on a judgment .against his
i^'^
■{: I
i*
l-l.ir. FXECITTTON.
Fi)i:ti/lh V. //(///,
[Sue "27 Vict. e. 1."), CDiilirining such Haloa.]
U3<1
cxcuiitiir cir ailiiiiiiiHti'iitdr.
Dra. ;«)4.
Where lands have been sohl l>y a sheritF umlor
n i\. fa. ii])(m a jiidyiiuuit against an oxi'cntnr or
ftilniinistratiir, tin: heir- at law is cntitlccl to ro-
coviT tin: siii|ilus from tliu HhcrilT. JiKi/i/li.i v.
Bi ;/.;-■, 3 ( ). s. ;t47.
cept till; titlti or givo >ii) the term. Prdcn,,)'
for ((uii'tiML,' tli(! title hail lici-ii iiiKtitiiti.',! I''
woru Htill iH'iidiiig ; Held, (by Strni", v' V '
athrminK the order of the r.^fc'rec nfiujin, ,,','"
charge an ordt'i- ('><• uiM.nrlfv f,... k ., .>' '"'*
for Heenrity lor
' s
the [ilaiiit
Jilaintitr siieeeeded in the snit, tlie |;ui,l \,',„|n ,
Mei'e |ios.H.ss.Hion of land )>y a debtor con.stitnteM
prima faeie a nei/in in fi.'e, and sueh an estate
cannot be hoIcI umier an ext^'ution against goods.
JJifi d. Ki'iKjIi V. Ciilli'iiiii, I <j>. It. 1 ")7.
The sheriff emild only
in iMisses.sion ; not a mere right of action while
a tiiird jiiu'ty w.ts in adwrsc posMe.sNion. Dik d.
Auxiiiiiii V. Miiithin'iii', 3 <,>. H. 423.
The interest of a hu.'iband in the freehold es-
tate of liis wife, may be sold under a ti. fa.
snlijeet to the debt.s of
and if he failed, the pur
ablel)y the les.seeM. would \h'. payiblr luitilif,!,,! |
to the plaintit!', but to his anre.st.jr's i,,.,!. 'I
representative; and that the pl.iiiitilf ||'„|'
such an inttirest in the property .'h n,iiii"i
dire( dy re lehed byexeeutinu. //;,/,,;,„' \, ''
///Vs 10 L .1. ^^ s. l,^-,. -(M>y.(M.uMh-s,i':'';
II the debtor'.s interest "" 'il'l"''il fri.ni Holmest.'d, AV/, ,v,, *'
The claim of a debtor to eniniKiiMiti,,,,,, i
niisreprewMitation of parties in olitainin;,,-, i,,t, !
of land, is not liable to be sei/.i.,l, :,tt,i',,|[,''|'''''
seipn«tered before tlie amount is (Ictcii'iiiii',.,]!,"]
I decree or otlu'iwi.se. /I'oAi li.^ v. T/ir r,,,..,,,^',,'''!
Ill/' f/ir Cl/i/ ijf Tiiniiild, l(i Chv. •.•;!(;.
against lands. Mnil'itft v. Uron r, 4 C 1'. 40'2,
,, I, Til • 1 1 -1 ii -i i -'^ riglit to dowor is not salealjlc nn,!,.
IVr r.nrns, J. '.amis acipured whue the writ i (.:,,,, ,,„!f:„„f (.|,„i.,,„i„ ,,f „ i , ,'
;.. ii... .i....:ir'.. i i i i.i i .. :i. I t'"'" 'W'"^t tlic lands or adown ss. liH,
as no estate in the i.iinl.
IS ni the sherilf's h.uids may be sold under it,
if properly advertised, thmigh they h.ave not
been twelve months owned by the debtor.
Hiiltai, V. hri'ii-iiii'i', 1(!(,). |{. 4!1,").
The liability of lands for debts umler ■'i (leo.
II. c. 7, is not all'eeted by t he death of the; ilebtor.
Ji'iii/\: Millii; --U <,». H. (110.
In ejectment, the plaintill' ilainud throngli a
deed from .1. M. to .1. The defendant claimed
through a imrchaser at slieriU's sale, niuler exe-
cution ingauist.l. .M. at the snit of one ('. The
deed from J. M. to .1. was made on the 4tli
Keliruary, 1S.')7. <'. 's jiidgnunit against .f. M.
was entered on 21st .Inui', liS.">."i, and registered on
the 22nd in the registry otiire. On the tlth duly,
18")!), the sheriir sold the land under a plnries li.
f;L tested the 31. st March, IS.VS : ■ Held, that the
sheritl's deed could not transfer the estate pre-
viously vested in .1. MurnMni v. Sliir, 32 Q. H.
KS2.
The court will, .at the instaiu'c of a judgment
creditor of a locateeof the croM n, with execution
against lan<
tlie interest
him to ji>in in the necessary conveyance to enable j that
assigned, sue iiiis no esiate Ml tlir l.unl, U"| , I'li
a right of entry ; neither does her iiiti'nistoniiJ
within the meaning of C!. S. U, ( ■, ^■^ ;i() , ■ „ I
contingent, or exei'iitory, or a future intiTi'-t.f,
a possiliility coupled with .■m interest." 1/,.
Aiiiitiiii/Y. 7'iini/iiil/, lOChy. 2!),S. S"c, iiliii,.|';(,,l
V. /'Mtiihiirii/i Lij'i' AxuiiniiiiT C,,,^ [<j l■\^.^■'.)^^
A creditor having execution against hmlsoanJ
not claim lixtnres which do not hiiiiiL' tn liijl
debtor. Jiviiirii V. Siii/i, || Cliy •_);{(|
Where a debtor had entcivd iiitu a liiiiiliiiiL
contract for tlie sale of his laml, licfni'i.i.xeciiti,,?
ag.iinst his land had issued : lliil, that fcjt
interest as vendor was not sale.ihle iiinlw fU
execution. I'ltrb' v. Itilni, 12 ( liv. li'.l.
A. enterecl into a ji.arol agiT.inriit witli j;. f„p|
the sale to him of certain land, reciMvi'iJ iiiirt'ifl
the price, and gave U. possessiun ,,f tlh'iiMiii<cj.f
A. snbseipiently assigned by p.arel tin- Lulaiwl
of tile price to S., to whom he was iiiilflitnl.I
P., after this assignment, delivered til thfi-liiril
in the hands of the sheriO', direct j an execution against the lauds of A., ami Uc
I' the locatee to be aidd, and order I the purchaser at the sale by the sliorilf : l|i
no interest in the Lauds [lassuil iiinltrilii
the purchaser, under the decree, to apply to the
crown l.inds department for a patent of the land,
as vendee or assignee of the locatee. Yah- v.
Tiil/irlijii, 13(']iy.';{02.
The interest of a debtor in land bought from
the crown, but for which at the time of his
death he hail not fully paid, anil had not obtained
the patent, is availalde in eipiity for tlie beiielit
of his creditors ; ami their right is not destroyed
})j' a friend of the heirs jiaying the balance of
the purchase UKJiiey, and procuring the patent
to issue in the names of the heirs. Frri/ii.Hvn v.
FenjiiKdii, Ki Chy. 300.
A plaintitV lia<l property within the jurisdic-
tion, consisting of a one-sixth interest (nominally
worth §2,()()(i) in lands, subject to a lease made
to the defendants by the plaintiff's .ancestor, the
validity of which lease was in (question in the snit.
This lease was for twenty-one years, and gave
defendants an option to purchase, and under its
terms no rent or taxes was to be paid until the
title had been (juieted, or a certificate refused ;
aud iu the latter event, defcudants were to ac-
sheritrs deed. .V. ('., 3 E. k A. 21."
.-Mthough portions of townsliip lot.< liavo im
lai<l off into village lots, this hirins no (ilijntiiJ
to an undivided interest in the to\viislii]iii't>, l
originally descriiicd being sold inider uxaiitionj
liotlihiin v. CuWortKoii, 22 Chy. 4(1,").
Where lands arc subject to a cliai'iiL' fiiriii,iiii|
teiiance, the interest of p.irtie.s licnclii.iallviiitt:r{
ested therein, subject to such charge, is.sayili
under execution, /h.
4. Prnrcfirlini' tindi'v Rijiii-dl H'n/*.
A sale of lands under a ti. fa. which La.< d
pired, is void. JJuc Buriihnm v, li\mu<Mif\
(I B. 430.
A. ti. fa. lands having been ludgcil in tb!
sheriff's othce, was allowed to exiiire witim
anything being done under it, cither \i^nvM
or offering for sale the lands of the iklitnr. Afta
wards, anew sheriff being aiipiiiiitod, tliisirig
other process was handed over w him, amir
iiiiiii
i j ,; ,
n
\
he term. l'rnn.,..li„„,
1 lii'eii iiistitiitnl, liJt
1. (l.,vStr.mn,V.C„„„
t\'t'i'ri't; I'l'l'usiii^t'i.lii.
tyfcir I'listsKttiutittks
suit, tllr lilllilwiillMl,
111' \'l:iiiilitV'siiii,i.st,,.
liam' iiinnry, whin i,J
111- ii.'iy;ilili'iiiit.lir,Tilv
t till' lililiutilV li;i.l iii,t I
• iimiH'ity lis ciiiM 1.,
iitinii. ///Vi/oin'. Mm. \
• ( Iliy.Cli.imli. -Still
itv ti> »'iiMiin'ii^;\tinin'.r I
tii'Hilliilit.uliili;{;i (i.it.ut
1 ))!■ si.'i/iMl, ;itt,'ii'lK'.|. iif I
mil milt i^^ ilc'tiTiniin-.lly
'nil) rt-< V. '/'//(■ (.'(iCy»/i'.r'i'u
Ki Cliy. -JIW.
not sak'iilile nniUrt\i'i,ii.|
adiiwns.t. 'rillilimaii
tiitc ill tlir Uiiil, ucii'fva
i:r (liiL's lu'i' iiiti'iist oiiiii»i
0. S. U. ('. c. IKI.s,
•y, iir a futuri; iiitiTtst,iv
•\villi iiii iiiti'ivat." .V(J
K'liy.'^'.is. Nr, llUn,
iriu'irr (■„., I'.M'hy.ilS.
ci'iMitinii ;i!.'aiiist taii'lscai
ik'll <lii ll'it lii|ciMi;tii
./,, II Chy. iW.
Ill I'lili'ii'.l iiitii a liimliiig
f liis laiul, lirl'iiiVL'Xi'Liiti'iH
Lssufil ; \\M, that hit
lis Hut salt'.ilili! miiltr t
A';/,,/, I'JCliy. (ill.
iriil auvri'iiii'iit withR. fnij
liii iaiul, ivci'ivcil lurt
liiussi.'ssiiiu uf till' liMii:>es.|
,1 1iv iiiu-ul til" liatol
Wllillll 111: ^v
;is lllili'titdl,
it, ilclivcri'
il tiithi'sluriffl
liy till
lai'iils iii
if A., amll^-i
riff: ihl
.'(l uinlirtlJ
;? r,. & A. -'1.-..
|,i tiiwiisliip liitslmvi'knj
s, this lulliis 11" iihjtctiiij
St in till' tii\vnshil'l"t-,
■iiii' siilil imilt'l' I'M-'i'iitit*
l'2 (Jliy. ■*<>">•
i>t til a ('
liaivL' li'rmam|
f iiartu's lull
1
Itll siu
rlii.iilllv illtd
!i cliar'41-'. IS ^'I'l'-i'
'(/(■)• E.'iii
,1 irWN,
Ller a ti. fa. vvW'-l'l'^V
\Biiriih<tiii V. Swm'Mli
Kvuig iii'c" !<%'> ":,"
^ll,^voll ti. .'Xl'irf^*'
..iiil.M' it, I'itlicr'iys'
llanilsuf tlu'ili'l**''
llifiug aw
.iutt'll, tllii'"
u.lod over wUini.W'l
1437
KXECUTIOX.
ll.'id
K:i'fi
1 fdiMiii'i'ly t" iiirtT fur nail! till! laiiiU (»f v\. tu m'll tlu' laints then in liin hamlH. l/iil/ v.
;lci
(.'iitiiiii
ilclitur, ami iiiailc a rotiirnuf "laiiils
liaiiils fur «
tiir »"'■
an
t uf liiiyirs ;" w li('ri'ii|Hiii the
lilUl
I iiiit a veil. i'\. am
I ti. fii
iiluv
r»'
Ullill'
Otfl-Tll
tbtri'ii
hy .11"
ii't ;>-'»i'
hii'li
fm-
tlic lanils u liirli liail licrii [ircx iunHly
(,'«m/m ,l>il., l.JC. 1'. 101.
S, 0//(< (• I'llMl^,
lalf wiTi' SI
.111.
il
"^.''.V'V"'' j Liiiiils limy lioHulil uii 11 jiiili,'iiu'iit ngaiimt unc uf
lull liluil jicvonil rxi'i'iitiU'H ill aw if it liail ln'cii against all.
,f iiiaili' I'J' till' sliciiir. I'lMin a ^
ithi'i' jmlgintiit iii'.'ilitur, tin,' tuiirt l.i'luw I /;,„, ,( ,^,,,,7/, ^._ sii'uhr < I -'/."Vi ». .s'.' ('i.5."i
W this
111 ulilol'i'il till' ill'Cll tu I
Ik'll ; till' vi'ii. I'X. an
1 ti fa. ii'-iiliii' liiing, I .Mifii frit'iitls rf»iiliiig in their jiruixTt'
Ull'ltT
llivlu
J. '-
the I'U'i'i"
iistani'i's, almiilnttly vui
iitry,
I ; wliit'h' •'annut, n|iuii a Miiiniiiarv a|i|ilii'atiuii tu tlu' runrt
WHS a
lliniii
.1
■>V..lk A. IH,S.
[ipoal. ll'inliiiir v. ''i' ih'iniviil, niuU'i' ."1 (
II.
if thu li'-lit
Nnlllilll,' '•■•''
1h' iluiii' iinikr an I'Vii'iitiuii a
It \\M I
lif V
H'l'
fri'tlllj.
It was
III tul'.'f.
tu an rxi'i'iitiun .against tlir lamls uf tlnir ililitur :
ftur i — •'^•'nilih', tin' alioli.'igc sliuiilil In' jiIi'.hK'.I in lijir
,,,. "f I'xi'iaitiiiii. i\'iiii(/ V. t\iiiii,i,i II, ;! (^1. l!. •_>(•,;(.
what li.'ul liirii inniim'iii'utl , fmo Mimoiiw lialiiii<jl<iii, \' V. V. U'.l, p. 1 I'Jo.
'.'('. I>i" ll. tlfi I llill'li llli V.
I tu hi' inrii'iit, niili's.s fur tliu \t\
[ (iiu-fiin;
,(.». 1!. -SM
\li. la. laiuls hail l>i'
of'Aii^ust, my ""-'
I'll ri;tu'\vi!il tin till' '-'."itli
I niithing ilunr iinih r it till
tk'lii!itil:i.V "I '
ts innt'iii'v, -Uli August, IMliH.
i Oh tliis
|,iv a list uf ili'fcnilanfs l.iinls was givi'
itiif's attiiriuy tu tiir shcritr, am
if
IV. Su.r. IIK L.VNIi IMiKI; I'AI'riTIuS.
1. I iit'i iiliijil III' L'li fiitiiiii.
Si'iiihle, to sujijiurt a salo hy an t'X-.shii'itruut uf
tln^, ollii'i', it must aiipiar tli.it whilu in utiiru hi
irJr:!,7tiK"<aiii.' .lav st'iit tlu.' usual ailviitisu- ' '^'^''^ ")".'" "'" '^^ '''> tu an I'Xt.-nt ainuunting in
[ "it til'vi'iif tu th.' ('Kmn/i, (!,r,ll. ami a Im'al •''."; "'"' .'^t *" 'V.' '•"•'l'"'"t ''tip "■ tlu' ex.'i'iitiuii
sulil uiiilur
V. L.
M*\
twnr. I'll till' -ii'l "f ^'I'l'ti'iiihir fuUuwiiig, it
MiLwi'il ill ^ l'"''' I'-'l"'''- •'""' '" t'"' "".>ll< uii a
(iwiiuent ilay : Hi'l'l. that thu writ was spent,
mil that till' \M\i\'i I'liiil'l iK't he legally su" "
i, n.ijwM.* V. Sh-i't,,; ;( 1'. J{. .-{[.■i
th.inili.- Hagartj'.
Tk ilift'iiilaiit ill ejoetnu'iit elaiiiiiiig thruugli
slielilf '» sale umler exeeutiun, it .aiiiieareil that
li, i,i. lamls issiKil I'lth Si'iiteinher, ISiiC, ami
:asritiinitil 17th Octiilier, IStiT, l.imls un haml
Mill liii laiiils I'ur the ii'siiliie ; hut iiuth
li;i.l liueli iliiiieanil nu laiuls ailvertiseil iimler
(111 till' saiiie ilay a veil. ex. anil a li. fa. resi-
,e«iusileliveivil tu the slieiiir, wliu ailvertiseil
it miller the uriginal wiit, ami sulil the lamls
niifstiim on the -*iiil May, ISti.S. There was
niiirti'iige uimii it, which ilefeiulant, the imr-
ihaii'r.V'''"""" *'"^' '"'"'"' ''''J' "'"' '■""'^ "■ S^'"''
,ito (if ilisrhaige in the usual I'uri.i, stating
,t the iniirtgagiir hail paiil the luuiiey due ;
itsufhai'i'i-titieate as is iiruviileil fur hy the
L 1'. Act, see. 'J.'iS, tin s.ile umler exeention
,1 liiiirtgagiil''s interest: llelil, tli.it the sale
41 not lie suiiliurteil, fur the original writ hail
jiiriil « ith uiittiiug iluiie umler it, ami the veil.
aii'lti. fa. resiiliie hail nut heeii a year in the
ll'slwails hefiire the sale ; ami inureuvur he
jihvisuuieil til aet umler the urigiii.il ti. fa. ami
Itll. vx. luiil uiit the li. fa. resiilue. Seinlile,
)l,it the want uf jirujier ailverti.seliieiits Wuulil
lot have avtiiileil the sale. Ltf v. Iluiris^ ;{0 (^l.
•2<i'i.
Ill' ixjilratiou uf a li. fa. lamls liefore the iu-
iniitil ilay of sale, which has heeii regularly
Idviftisi'il, lilies not cause a cessation of the
izure, which the I'uinineneeineiit of the adver-
Miit'iitiu. In this case, where laiuLs had heeu
irtiseihimler other writs, the plaiiitilV's li. fa.
iigat the time in the sheritV 's hands :~-HeM,
Btalthimgh the sjile under the writs so adver-
liii'itlier took place nor was adjourned, yet
t the iilaintitl's writ operated iijion the lands
iiler the sei/.iin; hy such advertiseineiit, and
itlii'^^^t'' ^'''it the return of "laiula on hand" to this
tit lifter its expiry, was, under the circiun-
Afte^^^P"i'is, the only return W'hich could have lx,'en
; ainl further, that the ahcriti' might have
Jl^^Boiii'ttlcilatthe plaintiff's suit without a ven.
of it, and duly fuUuweil up .-iiili step after lea\ iiig
\ the ullice. hm d. Milli r v. Tijl'mi;/, ."> <,». l!. 71'.
I .'^ee also ('iiiiijiliill V. Clilicli, I ^). I'l. "Jlii.
! Held, Mraper, J.,- diss., that the facts in this
ease, as stated in the report, d instituted such
an inceptiiiii of execution a^jaiie^t lamls liy thu
'. sheriir, during the currency ni th' writ aiul while
he was in ullice, that a deed made under such
exeeutiiiii hy the same slieiill', after the writ was
current and after he had guiieuiit uf utiice, pas.sed
the legal estate to the purchaser. />u< d. '/'ii/niii/
V. Mill,,; (.). 1'.. 4-J(i.
Held, also. Draper, .)., diss., tlial the cuiuluct
uf the executiun delitur, alsu st:iteil in tliercpurt,
shewed an acipiiescnce un his part in the ex-
shcriirs right to proceed with the sale of the
lands as he did. //).
The ahiive decision coinniciiteil 11)11111 .unl ink
hereii to. Duf t\. S/iritiijir v. Milli r, H)(j. I'.. .")7.
.•^ee, also, i>oc d. Ytiiiini v. Smil/i, I ,(^). I!. |!t.") ;
lltidtit V. Hill/, 24 g. li. 4S4.
[The questions arising on these ea.ses are now
provided for hy V. L. 1'. .\ct, sees. lldS, •Jiill. J
] Held, that the deed in (piestion in this case
having keen executed hy thesherill' out of uliiee,
hut in cuinpletiunof the sale made liy him whilst
■ in otiice, w;w valid under s. 'Jii!! uf ('. ,S. {', ('. c.
'22. MilUr V. Stilt ,1 <//., 17 C 1'. .V>!l.
A ti. fa. .against lands was rtturnalile on the
loth .Septeniher, IStiK: the adveitiseineiit uf sale
' was first pnklished after that date ; while tlio
writ was current, the sheritl' had tuld defendant
; that he had the executiun and that the land
'. wuiild ke suld unless he paid ; the sheritl' was
alsu on the lands more than mice kefore the w rit
1 expired, kut he did not go to make ;i sci/iire : —
Held, that there had keen no inceptiun of the
i exucutiim during its currency. lirniVinrn v.
I HtiH, IG Chy. 518.
See Dowjlaxi v. Bnulfonl, 3C'. 1'. 4.59, p. 1447.
2. Advertisement and Dci'd.
It seems that a conveyance from the sherifT by
deed under seal is necessary to complete a ven-
li
.'li
r!
VM
EXKfUTION.
U¥)
K ■■
(lue'n titk' to UuiU miM, iiixUr tliu I)rl>^ ittiiiux of
r> <li'(i, II, : timt tlic retiini upou tin- li. ('«.
caiiiiiit III.' I'liiiNiilircil iiH a uuiAv of ){i\ iii^' nikIi
titU', imr I'.iii HUrli \ I'lidiii' tiiko a title l>y ivt lunl
(i]>c'r,'(ti<iii dt' law iiliiiii' : that a ni'glcit nii the
jiiiit 111' till' Klifiill'to ailviTtiKU tlii^ iiroiii'itv Mi'l'l
V ciiiiil lint cictcat till' vi'iii1i>i-'m titl" ! aiicl altiiniij^li
till' laii'l may Ix' 1 imiki'il ilnwii tii tlu' a^i'iit nt'
n linn, the dciil of .niivi'vaiiri' may lie at't(i\sai'il«
maili' li\ i('i|iii'Ht nf till' >itliiT (lartiuis tn any
imliviilii.il nt tlu^ lirm. />'<<■ il. .\/<>[l'iii \. //'(//,
'lay. 5I(».
A ilcinl i'Xi'<'iiti 4 liy II ili'imty dhiTitl", of laiuln
Molil iimlir ail I Ai V iitKiii at'tir tlii' iKatli of tlic
Hlii'iill ti. wliuiii the writ was iltri^vti'd ami altiT
tlii^ a|i|iointm(nt of a new HhcnH', in void. Jjor
d. Cniii/.l.'/l v. Ihuinlhw, til). S. H«.
'I'lio court will, afti'i' a luilu of liiiidM iiiidur an
c'.xcimtioii, |irev('iit an aMHi^jiniii'iit liy tin HlicrifV
to till' iiuiiliaNiT, wluii' good I'uuKi' i-< sliiwii
for rt'iiiiiriii),' tlii'ir iiitii Icriiu't'. Uank aj L'i'jk r
Ciiiiii'l'i V. Millir, \l. v. ;j Vict.
Any want of ii'j^iilarit> in giviny )iiil)lii' notice
of an adjoiinit'd Halo under a li. fa. will ni>t
invalidate tin- sale where the dehtor attended
tlu' .sale l)y W'.H agent and aftcrwanlH ratilied
wli.it iia<l lieen done. iJur d. JJ'iMelt v. Mc/jiimI,
3 (l It. •.".>7.
A NlieriH"."* ileed, being Imt a conijdetion of tiie
Hale, [H only g 1 for land aetiially «old. .\ party
therefore is not estojipeil hy it from jiroviiig liy
parol til i,t portion.s of tlie land therein cleserilied
as sold Were Hot ill faet sold ; and if the ileserip-
tion of the wlioh l.ind in llie ileed lie so tilendi'd
together that oiic cannot distinguish lietweeii
what was sold and and what was not, Ihu deed
will he had. />u. d. Millrrv. Tijlunij, '> (l H. 7!».
The shurill' having, in I8;W, put uj) and sold
part of a eertain tract of lamj, liy nii.staku con-
veyed the w hole, descriliilig it so that on the
face of the deed no parcel could he distinguished
from the rest, and allowed to pass alone : -Meld,
that he must lie considered as any other person
having a power to execute : that hu could not
lie regarded as functus <itlicio tiv the execution
(if the first deed, whicli was wholly void; and
that he might, therefore, in 184!», make a deed
(if the part actually sold, ti^uivre, whether, lln-
ihlilnl- IhtchliJ <l title to (ill l/lV IiDkI Cullfl'l/Cil, if
the ]iartsol<l had hceii aopar.'vtcly described and
(livi.-iihle from the part not solil on the face of
the deed, it could have pa.sseil alone, (^uiere,
also, wiicther the proper course would not have
lieen t<i aplily to the court to set aside what
had been (lone under the execution. Doe d.
Tlfiiiu/v- MiU'i; 10 Q. B. tJ5.
The court refused to interfere summarily to
C(jnipel the aheritl' to make a deed of a lot sold
by him under execution, where it appeared that
lie had been advised not to coniplute tlie sale on
account of an irre''«larity in the advertisement ;
and tli.'it the same land, on being again advertiseil
and exposed to sale under a suusequeut writ,
brought a price far exceeding thfit for which it
Ii.mI lieen purchased by the applicant. In re
Citmi'hilletuL, 10 Q B. 641.
Under a ti. fa. issued upon a judgment entered
in November, 1851, the sheriflF of the county of
Oxford, in 1853, conveyed certaiu lands in the
township of Oakland, reciting in the deed that
they had licen sei/cd ill l>eccnilier, I,h,'|. h,, i.
Al.'iViet. ('. .'», which came int" f..r. I'mm,,! i !
of.laiiuary, iH.'i'J, thetoMiiship ..| ' ijil;|.,||,| '
annexed to the eoiinly of Ihaiil, Km hy tlii' l"t(,
clause it VMi.i enacted that all idoi,,,). ,,,, ;„
, . , , ' M III 'lliV
court at the time when the act >.\u,n\i\ (mni' nji,,
etleet might lie e.inliniU'd to tll.il and iuiUuiit
in such court, and such judgment iiiinlit U. ,,,.
lilted as if the act had not Imcii p.iB,,.,! . || i j
that under this piuvision the "In nil wiutiiiitLir
l/(!il III cnli^ey as he had doiii'. SloiHt,,,, ,•
llohr, IL' (,». li. 175.
Xor will the iiiuiMsiiiii toad\citi<i;it,ill, ui|,,,
there is no iiiicertaiiily as to what liax Ih'iii»„||
though it may give a n^lit of actmn iig.iiu,!. i|,|.
slieritr. ihliitnii v, Au'c, 17 (^. II |;(4 ui. I
i Ln v. //o-n.w, ;}0Q. l;. -J!!-'. ' 'I
j Tiio sheritl, under a fi. fa, agaiimt one S., ;i,|.
vcrtised for sale all his interest in an uiuxi'iirvl
lease of the premises occiipiecl by K. aii.ili'.rv
stable, (111 Niain street, lietwcm .huiic, aii'i
; Hughson streets. (Main street raiua.'daii.l «ut
.lames and Ilughsnn streets imrtli and wmtlii
K. was then im longer living mi any paiti.! ihcl
land MO leased, but he had occniiiiil a iijicciid
about thirty feet frontage out of cjglity f^.t «l,|,.|,j
I the lease covered. At the sale, an tlic wiiiilit^
evidence shewed, and the jury foinnl, tin; shtriifl
sold all S. 's inte.'est in the lease, it lit'iii>; hill
imiiression that it covered eighty ft'i't, aii.l tb«|
K. was in pos.sessioii of the wlioic, A ffw iia\il
afterward.'., finding that there w,is a iliMnik iul
to w hat had been sold, the sin ritf ailvtrtiseii
another s.ile of all the reiiiaiiiing iiitircst ui ,\;
the lease ; but, having taken ailvicc, lit ■A\m\
dolled this sale, and afterwards iiniviycj
defendant, the purchaser at the sale, ailtln'ten
: of S. in the premises niciitioiiud in tlu! Itae;!
j In the meantime, however, S,, iw.suiuiiig thai
(inly what K. was foiinerly in imsacusiiiii ('
hail been or could be sold iiiidci' the ailvtrtij*
ment, conveyed to defendant all tliu Uml md
, tioned in the lerse, exeejit tli it ; ainl tliu jilai
I tiir brought trespass against defciiilant, wt(|
j claimed the wlnde of tile land Ica-^cil uinli-r tiK
sheritl's s.-vlc and convey aiice. Tiie jury Im
for the defendant ; Held, that it wan iir"|iirlJ
I left to the jury, on evidence nf what t«ik [ib
I at sale, to say what liii'l wa.s .ictiially snlihtLlI
it was the sale, not the advcrti.'ic'iiii'iit, wliicl
, must govern ; and th;it tliescrciiul advtrtisi'iiii,ij
; could have no legal eUcct. If the ailvurtis
j ment had clearly referred only to wliat K. wij
; then (iccupying, (wiiich it was hcM nut t"
but the sherill had put uii and sniil the nhtJ
interest under the lease, the lease, aud imt I
.idvcrtiseiiieiit, would still iiavu ^iivt'rncil,
the 8heritt''s advertiseiiieiit cuiiint lietrcatwll
an auctioneer's printed terms nf aaU' iudnliim
transactions ; his power to convey ilcpoiiilsuix
what the debtor owns, and wliat he actual
sells, and not on the .iccuracy nf liis mlvci
ment. Osborne v. Kerr, 17 Q. B. 134.
Held, that it was innnaterial tiiat the sheril
deed was not made until after the debtur 1
assigned to the plaiutill's, it heiuy jiart uf t
execution. Il>.
Defendant on the 13th Octoher, 1852, L-raiitJ
the land in question to one S., to lioliitDtT
said S. and the heirs of his body fur tweiity-d'
years, or the term of his natural life, fri'iu t
Ist April, 1853, fully to be coniplotc audunJ*
nil
KXKcrrioN.
1112
ii;iilviTti«';atRll, wIkk
^ 111 wliut lill!» livillhiiU,
lit 111" Ai'tli'ii iig:iill»t. tilt
,Y, 17 <.». IV i:t4, Ul;
Il3tli October, 1852, (P
l„ to oneS.,tohol.lto
1 of his iHuly for t«" V
^f his latural life, fn*
to bo complete aiiiUud(
hot lint ti> '»" UlliUirlct til ftlW llorMfill rxi I'lit til
till' hiiii'y "' 'I"' "'ibis., fur liny iH'iiiiil iluriiig
tk will t«TMi. A yeiirly ri'iit iif C:r», uml TiOh,
fur l.'iii'l I'lt'iifi'il, wiiH rcHcrvi'il, wbii'ii
iiir iiiH' ill
> oiviiiiuiti il til piiy, mill it w.iH |iriiviili'il ihiit
nil f lillllV to |l»'l''ill'll' tll<' I'liVrlliUltH till' lollMf Ullll
tW tiTIll thrfi'liy jJI'lllti'il Hliiiilbl ifiiMc Hlnl liu
viiiil riu! I"'"""'"''"^*''''' '•'""' "" '"t A|iril, iH.V.l.ii
viir!! ri'iit liriiij,' in iiri'fur, iliU'inliuit iliHtraiiii'il
111 I mill till' K'""'" "' '"^•' "'"' i< iii'iiii'il l<ir*iiii<'
tiiiA "11 tin" 1''' '"''"''* "''* ''''''"''■'lit « Hii\,iiit, ami
til,' ulurill' iilt'"'wn'"I«. uinUr r\i'tiitiiiiiH wliiuh
uii it |ii'ii|irrty tlx* oxi'i'uniiii iKIitur \uvt, uii<l liiit
iiitiTfit in it ; lir slimilil mil inU ertiio innri' nf tlio
t.'tt.iti' tliin 111' liiiiln tlir ili'litiir i:t in'ii'i'itril ill,
•I III I 1 1 I 111 L III 111 .1 It III 1 1 1 1. 1 I I.I I >l 111'' M i iif iiiii.iif i J 1 1 11
liiim
Nli\ I'llllliT,
l.Si'iH,
Hl'H,
IIM
kiiii\v-« « hilt till' iIi'IiIhi'h iatci'int ii, lio
! Hill li Htiiti Hunt 111 it ill till' ailvir-
iriiviili'iil iiwini' wiiulil ; iipul in
is nut jiistilii'il ill
I'liiil if ill
Mhiiiilil h'ivi
tini'llli'llt lis il |ir
ri'i^iinl til tlirsi' iniitliTs
III
1
dj) uf mi
I Bnluili'
1H,1 Ik 111 ill 111''* ll^lll'l" "IIICI -
,,,l(i till' iiiii'xpii''' tiTin nf S. in tin' iiKinini'
,1,. riliiii-' it 111 till! iiilvi'i'ti.sL'iiicnt iimi ilc'i'il i.
(It, nil witli liftiiii yuiiM yt't tu iiiii, iit 11 ri'iit of
iillKlii vciir. IVt ItiiliiiiHiiii, ( '. .1., lliii HJurilV's
lUil wiiilM li'i^^' lii'cn imiiiiTitivi', mviii:; tu tliu
Lii-ilini-ilitiiiM III tliii iiitL'i'i'st wbii'li S. Iii'lil in
tilt liiii'li •'""' "' tlio iumtiint of runt. liali/i \.
Altliiiiigli i' nlurill'H ilci'il rL'liitcs bai'k tu tin'
Diili', fill' tlio imriiiiHo iif dufi'iitiiij,' inti'i'-
I'liiivrViiiu'cHi xtill tlio vi'inluc I'iiiiliiit
I bmi' I'ji^i'tiiii-'nt until tbo rxooutinn thcruor,
I (;,„i*//r,' V. llnihiii, 1-2 V. I'. ClU.
KrniM iir ilofoctn in tlio ntlvortiHumuiitH, citliiT
I in tilt '"'"•'"' oi' li"'''il li.'ilur, iif a Halo uf Ian
IiinilirtXi'i.tltiiin, will niitaHfit tlio iiui'i:hasi'r s
Ititktvtii if lie lio iiiii; of till' oxoi'iitiiin iiiili-
Ivm. /^l^'•<"« V. To'tii, •-'» f.i. Ii. •_•!•(;.
liujt'ctiiK'iit iiiHiii a sliorill'M (looil fur lainl
liolil nil I'XL'ciitiiiii, it aitiioariMl that tlio miiIo
lli»,l U'lii iliily iiilvorti/.oil in a luoul iiipur fur
Ithra limlitlM lu'l'iil'i' tlio -'7tli uf Augllftt, ISlit;
llUil tiiut an ailvoi'ti.sL'iiutiit iiu'iirroot in sumo
,>»rtii'iil.'ws Init boi'M iiisi'i'ti'il in the (iicil/i uf
Ithilltliiif ■Iiiiio, 1S(I4, ami fiiiir iioxt miinliors,
Ihttmirti being oorri'i'ti'd in tlio sixth in.sortiuii
-alltlitso ailvoitint'inoiits luing uf a salo iin tlio
Kth .\iigU8t. On till! list of Ootiilior fiilliiwiii'',
jBil 111 till' live next iiuinliors, tlio .salo was ail-
mrtisi'il in the (iir.iitr fur tlio I'JtIi uf >iii\oniln'r,
UtaSiiliiiKtliulieliient uf tlio liroviiilis salo ; liiit
Ihis was lint imlilishoil in a local iiaiior, and
fii(.u;;li imtiee of it was jiut uji (in tlio diiur uf
Iht iiiiirt-liim«e, it was nut shown tu havo oiiii-
Witiimtil tliere fur tluoo inmitlis :- -Hold, that
Btiit uilvertiseiueiits oiiiild nut bo oiint<iilort'il a
iuiii|ili,iiii.e with tliu statilto ( '. S. IJ. ( '. c. 'J'J,
\.X, Imt that the difouta wuuld nut alioot tho
fcrili;u-i.'r'.s title. Ih.
lAli. fa. Imids had liei.n roiiowod un tin' -"ith
lugiHt, ISiU, and iiiithiiig duno iindor it till tho
k 'liiy uf its ciirronoy, l.'4th August, ISIkJ.
Btliisday a list of dofendant's lands was givon
J' lliL' liLiiiitill "s attiiruey tu thoshorill, and the
kttcr iiii the siuiie day sunt tho usual sdvortiso-
Wtlitreiif to the Vdiunla (jhziIIv, and a local
H^r. Uu the 2iid Soiitomber fulluwing, it
ftitiml ill a local pajier and in the ilavtU on a
IU,|ii(.iitil;iy :— Held, that tho writ wa.s spout,
il that the laiiils could not bo legally auld uiidor
K'ljMhU V. Stader, 3 1'. U. 315.— C. L.
limb.— Hagarty.
iStmlile, that thi,s court would entertain a bill
IccmiKil a shcritf to convey property aold under
lesetutinn; but the execution ilel)tor must be
Meaiiarty. Witham v. Smith, 5 Chy. 203.
Uheriff having a writ against lands fur exe-
pii, sliimM make reasonable inijuiriea as to
91
'gam 111 incsi' Miaiiors nr is nut jiisiiiiiii in
'ting irregularly by tin' iiiHtrui'liuiiM ni tbo
, laintill's atturnoy, against bis u\n u iiidgliiont,
.\tr/)uiiif/,l v. Cni'i' i-nii, I3('liy. S(.
.\ third prismi wliu piirohiisoM and gets tho
sluriU's di'id is nut .illi'i'ti' 1 by irro^ularitii's uii
the part uf tho shoriir, unloss t'lo oiMunislainoK
are siii'li that tho purchaser's taking tho doeil
call
.SUCH iiuai iiio piircnasors laKiiig
bo ttaiil to ninoiiiit to ii fraud. //'.
tiigo tu thodi'btiir, tbo sail' caniiiit III' iiiaintaini'i
oxci'iit as a soourily fur tho dobt, pruvidiil it
witbiiilt ilolay, and liiluro tho
ia:^scil intii the liainls ni a third
(>.), tho latter III wlinli piuliilnts the rogistia''
tiiin uf dcods uf any purtiuns uf luts su laid uiit,
unless they ounfurni tu the plan uf tho prujiiity
rcgistorod iindor such act. Itnllilmn v. t'lillifrt-
SHU •*'* I 'llV'_ .111.*)
'•«^Ki-
.•mil, '2'2 Chy. -IIki,
iSeo -/>«(• d. (.'iiiiii roil V. Ji'iili'iiiniiii, 7 ','. I!.
l4,Vi ; J/u/',',.si„( V. y.Vi.y, I I'. K. •_'.-), 1
33:i, [1.
,..,,., , , ... -..l.M'/l >. -/Ill 'I, I 1. II. .11, ['•
I Kil ; Jl^iiiL- uf Mijiitnnl v. Mdiirut, 23 tj. J>. -li-t,
II. U.'iS.
3. Ji'i'i i/iiliiiiii( ,< ill iiUii r fi ■■< I iicl .<.
(a) I mull i/il(!i-i/ <;/■ ( 'iiilKi'/i riltiiiii.
Whore an exooutimi eroditur purchased ]iro-
perty at shoritl s salo at uno-sixtb uf its value,
the eiiurt bold that oH'oct cuiild mily bo given to
snob a transact inn as a sciurity fur tho debt and
ousts, and nut as an absuluto piircbaae. K< rr v.
Uaiii, 1 1 Chy. l^X
AN'liere prujiorty wuith 1^1, ."iOO hiul been sold
at sberiti's salo fur iJ'.IO, in cuiiaoiiuonoe of the
title being disputed, the oiuirt refused to give
eH'ect tu tho shorill "s deed as an absuluto pur-
chase. C/iiiliiiirs Vi I'i'j'jiilt, II (..'by. 47r>.
Tho plaintiir liaving piirehased at shorill "s sale,
for a small sum, tho iutoiest of his dobtur in
priiperty which tho dobtur had previuusly iiiiirt-
gaged fur a largo sum, the validity uf the iiiiirt-
gage or the amount due upun it being duubtful,
the ciiurt declined to enfurce the purchase iva
absolute ; but, the plaintifl' subniitting to havo
his deed from the sheritt" treated a.s a security
for his debt, the court made a decree on that
footuig. Mallocli V. IHunkeU, 11 Chy. 431).
1443
EXECUTION.
]\H
liijuleiiuaoy <if price, sullicient to si't asiilu a
cimvcyiuu.i' ii.s lictwoiii iwivatc iiiiliviihial«, will
iKit tti'i'vu as a ^'nmiiil I'nf setting' aside a sale l)j' a
slieiitr iiiidel' exeeutiiili. 'i'lie rule cuiilil only l)e
ji]i]>lieil ill an extreme ease. J.iiiii'/ v. JlaHln icii,
14 Chy. .'{fi.
A slieritr, ill olieilieiiee to;i veil, ex., in Xovem-
lier, l.Slit, exposed for side, liy auction, and sidd
to the .ittorney of the plaiiitilV in the writ for
i'70, a f.iiiii of l.'O aeies, variously (estimated as
wciith OJ lOs. ,111(1 t-Ti per aere ; Imt wliidi \\as
sulijeet to three rights of dower, two of the
parties heiiii,' yonni,' women. In .\)iril, IS(>7,
the party elMiiiiiiiL; under the piireh.iser liled a
petition under the aet to (|iiiet liis title. 'I'lui
devisee of tiie execution de)iti)r opposed the eer-
tilieate on tlic grounds of iuiproper conduet in
the matter of tlie sale hy t he slierill', i;videneed
by tlie griiss iii;ii|e(|nacy of coiisider.itioii. The
referee of titles itported in favour of the claim-
ant ; and, on appeal, liotli parties desiring an
a<l.iudicatioii i.ii the facts appe.iring in tiie athda-
vits and |irocccdiiigs 'ocfore tiie releree, tiie court
alllrmcd the loidiiig of tlie referee and dismissed
the appeal with eo.sts. /''.
A creilitor olttained jii Igmeiit against his
delttor's executors, ami issued thereon execution
against the l.iiids of the decease<l, which had
liiid lieeii lUviscd to a minor. Tlie creditor in-
terfered to ]irevciit coiii)ietition at tlie sale, and
then iMiU'^ht the proiurty at one half its value :
— Ilehl, that his purch.isc w;is not maiiitainahle
ill eipiity. /« iv Jimis, 17 Chy. (iO.S.
The slierill' ,it a sul)sei|uent sale, under another
small execiitiiin against the executors, put up
the wl le f.irni, and the same was knocked down
to tl'j prrchaser of the half at the former sale,
at oiie-si:;teenth of the value of thi^ farm. Ueforo
fonveyance one of the legatiM's lih d his liill to
restrain the carrying out of this sale : and it was
held that he was eiitithil to the relief prayed.
Jvuit V. JoHi", 15 (.'hy. 40.
A party whose lands have hcen s(dd under a
ti. fa. eaniint olijeet to the sale on the ground
of long delay in selling after the seizure, where
sueli s.ile took place at his own instance or with
his assfiit, and he li.a.s received the heiielit of the
jinu'eeds of such s.ale ; licit Ik'I' call his heir after
hisde.lth. I)n, d. Ililfl"! V. .l/c.l/-(//»,s 1 {). H.
141.
'i'he fact that the whole of a farm may have
lieeli sold for a dclit. v hicli ]iiol>alily might have
been satislied by the sale of part, is no ground
to inv.di(!ate the sale. I)iii d, Ilm/i niKiii v.
Sh-'iii;/ <l »/., 4 t). H. r>\o.
After land h.M been sold upon a writ \aliil
upon the face of i*^, tlioiii;h the judgnieiit may
))e reversed for error appeiring upon the record,
yet the ilefeiiclant in the execution can only be
restored to the inoiiej', not the land. //<.
It is no objection to a sale under n li. fa. from
a district court tli.it the writ directs a sum
beyond the jurisdictimi to be levied, which is
Htateil in the writ to have beuii recovered for
damages ami e.ist.s. Jh.
Qiiivre, would the writ and sale be void if it
had been stated in the writ that a sum exceeding
the jurisdiction had been recovered f'lr (huniv. <
only. J I). '
( >n a judgment in assumiisit a li. fa. was is<ii.,l
ill debt, and afterwards aim nded l,y iiilinfciiint
l?efore the amendment the shci ill had mi|,1 th,
land and given the deed, umler wliidi tlie],!;,!],.
till' claimed ; - Held, that the sale w.is nut vml
ils having been made under an iitoikhih writ •
and, ipia're, whether it would huvc heiii void.il.lj
if moved against at the time of making tin; aii-
jilicatioii to amend. I)ii<- d. Klm^h if ,i nr \
.M. devised lauds to his two sons, .hplm ,iii,l
.lames, and died in ls;!4. The will \\a.< rfins-
tercd in KS.VJ, soon after .James eaiiie iil'ai.'i'. tlit
title having been a registered one since js.'jlt. In
I8.")(), .lohn, the eldest son and licir-at law ni M.,
conveyed the south li.ilf cif the 1,'ind tiMJitV iLmt'
who registered hisdecd the same ye.ir. 'ii Iv'iii
the other half was sold to defeiidaiil iiii.lcnii'i
exi'cution .against the executors, ohtaiiiuil cii
tlu'ir confession. In ejectiiient hy .laii.is:-
llelii, that it was no objectinn that tli" li. la.
j goods had not been returned bcfere the li. Ii
Ihuiils issued ; .and that the exi-cutors liailaai'li-
ted olliee bv giviii_' the confession. Miimlir'illr\
Nh-holl, lt;'(,). li. ()0!».
In ejeetnient, it a]ii)eared tli.it tlie lainl in
(juestion was brought to sale hy the .-slHiilf un-
der several executions against M., one <\\ \\\i\A
Was issued by a client of ]ilaiiiLil|'. I'laiiitifs j
agent attended and bid at the >alc, aii'l the
land was knocked down to liiiii .it tlir |rice j
otl'ered, being siitiicient to cover the eXLriitiiin.
'The defendant .Mcliityie al.so utleic d tliu MiiieJ
)irice. Hefore the complctioii of the sale, liniv-j
ever, plaintitl' iiotilied lioih his agent and
sheriir that an injiinctinii had liccii iinjuidj
by the Court of Ch.ancery to issue restraining' j
the sale, and that if the s.iiiie wuic carriiill
out he would apply to set it aside. This ii' '
was followed by one from pl;iiiitilf'Ma^'i.)itt :
sheriir, to the ellect that the latter w.is at liU)'/]
to cmivey the land entered in his n.inu' ;it tbul
jale to any iierson he thinight lit, .'is lio ivliii-l
(luished all ela':,i and interest tiicnin. I
sheritV accordingly, iipnii the iiiiiiiii'tinii luiiij
sul)Sei|Uently dissolved, eolivcycd the Lilid tOi
the ilefendant Mclntyre for the prici' l>iil lijr]
, him at the s.ile ; llidd, that in the alistim
^ any eviileliee to the contrary, it iiaist liiMssiinnii
the slierill' had |iro;eeded icj.idaily in cuiiv.lilil
i the land to .Mclntyre, an<l th:.:, im out al'|Kar|
! ing to be prejiidiceil by the tivi sfcr, the o'liiT
was bound to uphold it." Held, alsn, that t.ikiil|
' all the facts together that it w.is the nu;ui> J
\ which his client hail obt.iined .s.itisl'a'ti.'ii "I
! debt, and that it w;is made niidir thiMXpalj
I authority of his agent, and s.i iiinltr \\v ''»1
'authority, the plaintill' I'ouM ncit he laMi'! '
imiiugn the conveyance of Mclntue. •'''•
V. Sllll ,1 (if., 17 C". r. .Vii).
In ejt'etmeut, a sherilV'.s d.rd of the mw M
to one U. was priHliieed hy del' l.nnt, '>""
which it aippeared that the sl'irfilf iiiniw a !
lands against defi'iidaiit, as exeeiitdr, and «\
wife (the widow of the testatorl, as exucntnx f
I the testator, sold to M., who n.iiviyid tiHldof
i d.aiit. The judgment uiioii whi( h the wntis^iij
' hild been olptaiueil nioli a cegncvit in:iM.i;tlJ
I by one liuell ai'ainst defendant .imi In" «'"'''|[
executor and executrix ; hut ilefeiuhwt a"''
'^f • 'T
1-14')
EXF/'UTION.
iJin
ltlK>l:itti'l-«":''*'
till! iiiimii't"""
wife wi'iv ii'^t the oxeciitoi-s apimiuted 1>y tin.'
will, iif wliiiU ik'ffiiiliiiit WHS aw.iru, as lie Iwul
the will ill I'i'* l"'>sessi(Hi : — Hfld, that this ileoil
cniiM nut iltli'at tlie ;''".:;-.li!»s' rij^ht to ivcovcr.
Hmiiilhii't"!- V. Lhjhthnthi, j.\ V. V. I'.Mi.
Wlkie a slic'i'irt' offui- il for salo the interest
of tlu' ik'htiir in certain lands, not statin;,^ what
it was, altliiiii.i.'l' the means of as^'ertaininy it were
cfiiivi'iiit'iit, anil the interest itself w.as aetnally
kn.i«nti> the jmlgnient ereditor, and iiartiidly
kiiiiwii til the sheriir, lint not mentioned to the
amlii'm't-, the sale was set iiside, lieeanse of the
'uncertainty of the interest or estate jint up for
8.1k'. /•'/''•.;/('''"'" V. Ihi'.l'Jiiii, 11 (.'iiy. ISS.
A testator ehtr^ed .several lejjaeies on his
m\ estate, w' .eh, snhjeet thereto, he devised
(ilithalf to II.. ii'id one-li;df to (i., liis sons.
Kxeeiuiiins against the test.itor's lands, in the
liaiiil« el his executor, to the amount of •'^KU,
ami :ii;aip»t the lands of the devisee !!., to ,a
bwr amount, were placed in the hands of the
sk'rilf. .inil the sheritl' jint U|i the h;df devised
toll,, umler all these writs ; it tironyht SKST.S ;
anil till slieriir, after jiaying the small e.veeutions,
aii|ilieil the halance to the exeeutions against U. :
-Hil'l that it was wrong to sell under the
esftUtiims aiiiiinst the eNceiitor more than was
eiiiiiiL'li tii liay those exee\itions ; that the etl'ect
i.itlieslientV's eiiurse was to apjily tli'.' ]iro|M'rty
of the legatees to I'.ay the de'it of .•luotlier per-
Wli, 11. ; ami that the sale did not dejirive tlie
Itjattes iif their charge ; liut K. having a.ssented
t"tl'.i' s:ile, the same Mas not disturhed so far as
it atl'.oteilhis interest. J(»i('.-<\\Jiimx, lot'liy. 40.
4. 7V/i ifiiiiirc/ III/ i'ltri'liiio r.
The slii'riff' s deed is not to he eonsideiod as 11
1 Kr- release in the strict sense of the term.
ft' il. Di^Hilt V. McLi'i'l, ,S (,». ». -JiC.
Uliere a party purchases land after .1 ti. fa.
I bs lieeii ilelivereil to the sherill', he holds the
uiiisulijea til 11 right of sale under a li. fa. hy
ie juili;iiieiit ercilitor l>i. ,' AirP/i, r.tun v.
|{f«ii'.r,'4(,|. I). 44',l.
. Plaiiitiir sued deferdaii*- on .-, covoniint for
lleisiii.'iiiilriglit tiiciin-ev, :'"i(i defendant jileaded
lonlytliat he was seise! , id hid good right to
ItOBViy. It .ippfared that the jilaiiitiir's interest
iBtlielaiiilhail heen .sold l,y the sherill' to one
IM*., an 1 that the plaintilV had picviousl v niort-
|p»littiiiiiii>Me('.,and the plaintilV's at'toriiev.
IWiigcilliil hy ilufi'Milaiit. swore that this siiit
Inniithiiriseil hy tile plaiiitill' to he l.roiight in
sianiefnr the heiielit of Mi;(i.. and that he,
Itntw, ;ilsM represented the mortgagee, who
*«t» l». iniil ,iut of the verdict. The sum paid
Ph", with the mortgage money, aiiioitiited
Mitarlythe puivl. ise money paid' hy ,ilaiiititr
"''*Hilaiit, with interest, for which the jiiiy
Vea VHiliet. Oil motion for a lU'W trial, with
^t tM ameiiil the pleadings, it was ol.jeeted
^tWiikintifleiiuld not recover, as the'eove-
Wtniiimiigwith the land had p.asscd to M-iO.,
»l tliat the ilaniages were excessive ; Imt the
wn Mn.s,..l t,i interfere, the verdict heing just.
«;•''« v./;,,,-/,,/, pj,^). n ._,Q.j
IQ».im', whether .1 purchaser at sherilT's sale
"l,");*""*!''' to sue on covenants running with
Where a ilclitor ilies intest.'ite, and his I.inds
i arc sold under execution .against his heir f'-r the
' private delit of the heir, and the purch.'iser has
' notice liefore his |iiircliase th.it there .are dcKts
I of the ancestor's oiitstaniling of wli'ch the credi-
1 tors claim payment out of the land seized, such
piirehaser takes only the heiieliei.d interest of
the heir, sulijeet to the ]iavnient of the ances-
tor's (1 j!>ts. '/'«.■/!• v. /liirh , L' ( hy. ( 'haiiih. 'JIM.
I — Mowat.
5. Eriili)iri of Tilli ill I'Jjcchiit III III/ Purrhamr.
Aiiniiiif till' ixn-iiliiiu ilil'ii'i/iiiif, III' tliii.<i' rhiiiii-
iini II mil r liiiii. I \\'here A. defended ;is l,iiidlord
in ejectmelit ag.aiiist .1 piilchaser at sherill "s sale
of an exiiired crown lease, sold as lielonL;iiig to
M. hy assignment :- Held, that after jirouf of tiio
exeie ili'ie.ition of the lease, the judgment, li. fa.,
and : i> litl's deed, a notice to produce the ori-
ginal [ease and assignmeiit, without specifying
|)artieiilars, orshewing them to have lieeii in A.'s
possession, was siitticieiit to let in secondary
evidence of the assignment to 1'.. ; and that as
.\. sheweil no title, nor tliat he had ever lieeii
in ]iossessioi<, the same presumption should he
made in f.avourof the purrh.iser .is if he hail hei'ii
left to contend with the dclitor himself. Dm d.
Mciliiii'i- V. /hiiiiU, 20. S. "i.S'.l.
A delitor in possession after a sherill s sale
is ipiasi tenant :it will to the purchaser, and
cannot dispute his title ; and a third person de-
lending as laiidh.rl, lint shewing no privity with
the dehtor, i.or any connection « ith the dilitor's
title, standsin the same relation to the purchaser
as the dehtor himself, /'or d ,1 (■»e./(,' v. .!/-•-
Hiri'H, :\ ( ). .s 4!i:!.
\ piirchasei' of lands on an exocutioii. is en-
titled to recover in ejectment .against the dehtor
or his represcnt.itive, without proof of the
dehtor's titli, or tli.at he was in posses>iiin of the
jireniises. Dm A. l-'i-ilni' y, ('lirM.<i r 1 > n/., ."> ().
.S. 114; Miirini y. /'ii'fnii, 10 (J. li. lUO.
Ihi*- if the tenant in jiossessioii do not cl.'iiiu
under the execution ilehtor, the dehtor's title
must he proved. JJm: i\. Ci'i in y. I'liirl:, M. T.
4 N'iet.
A imre'ha.ser at a sherill's sile is not held t.>
stricter iiroof of title ag.ainst the serv.int of the
execution il .htor in ]iossession, than he wouhl
he against the dehtor himself. />■>' d. Li/mi y.
/./;/'■'. 4 {). P.. .'{(iO.
Where the only (piestiou is, whether the tie-
fcmhiiit at tlie time of the sale had |iossessioii
under the exi' 'iitioM dehtor or not, the title of
the .lehtor need Hot he shewn. /Jm d. I,'ii«<i II
V. /fml;ll:i'-^, .^. ii. n. .'Its.
A. jnirchascd at a sherill s sale, and got a deed
on the 'J'.ttli Septeinher, l,S4."). !'>., the exccntioii
dehtor, went into possession of the land sold a.s
devisee under lii< fatlnr's will, who died in |.s;i.5.
a, on thel'Sth of Seiitemher, IS4-.>. leased the
hiiid to < '. f 'r three years, who enjoyed it fir a
year, when H. having ahsconded from the pro-
yiiiee, !>., his hmther, purchased the teiiiint's
interest, and went into possession. rpon the
tenant ipiitting i.he place, he took from |). a
written understanding to save him harmless
against H. - H., in [''ehriiary, lSt7, made a deed
of the land to his hrother, who was then in
possession, for the consideration exjnvssed of
>.
ml
ii;
EXECUTION.
111^
ClOO. Tlio (looil was regi8ture<l in July, 18-t7.
Till: slu-'Hir's (leuil to A. WiW luit rogiHtoreil : —
Hiilil, ill oJL'ctnuMit hy A. lyaili.st I)., tli;it Ulmli
tliiJMi! I'lu'ts |). "s iKPHserisiou ;it till! time uf tho
sliurill's Miile \v:is tho ]•(l^'sossi(lll of H., the oxi;-
cutidii ili;))ti'r, tlir(iu;,'li his t"niiiit (!., ami that
thi'ivfdio A. was ciititloil to rcuovcr. /)<>(• d.
y.'(/.v.-.,7/ \-. Un,!,,k-U^, -) (i. 15. .'US.
'Pliu iiiaiiililV, a puriihasur at sharilT's sale, jiio-
(luced th(^ shfrilV's (hi'il, uiiilcr which ho liad
lioM jiosMos.sioii liy liis tonaiits for several yo:U's.
Tho (li'foiiilaiit, hoiii;; tlu^ heir of the (lefeiidant in
over, only roeituil in an informal m minr tliv vtn
ex., not roferring to tho Ii. fa. j^ Is (,il,i|j'
anil no oviiloiioo w:vs given to jnnvc tlu' JuL, i
tlie year riMiiiired )>y law liufoic .siieji sali ,141
t.iko iilaoo : Held, tiiat uiuKi' tlic (Jti.,] ^
nrovod the eoiirt could not iHcsiiine th,. sa],. t,
1)0 regular, and a verdict foi' tli.' pLiintili «,«'
ordered to 1)0 .set aside. Jim it nl y )/,-V7-i
<•/., 13 c. r. 189. " ■ ■'
Held, foUowili;,' holisle ('. hewitt 1S(1 |;
l!oc-. .McNeil, \:U'. I'. lil'J; ■ •' ' ■
stone, 17 <'. I'. !.">, that in
1.1,1;
•'ii'l li'Mr. I.ivii,,,.
1 •.!■• . 1 1 M i'Jy''ti.iri,t ui„|,r'i
tho original suit, ontcreil, and oil action iToiight, i «"i''''" « "i"'''. '0' "'" exei'utioii eiv.litur ule
ol.jectod that there were g Is of his .■ineestor j ^■^■'"''■'' ,"f f'l-' "lieriH), a^;,iiM.st the (Klit.,r, |l,e
which might have heen seized, and that tlie | l''''i"'till need not prove the judgiiieiLt, Imti
jil.iintiir had not jiroied a Ii. fa. gooils returned
nulla lioiia: -Held, tli.it these olijeetions were
jiroperly overruled. /)ue d. Miiici-s v. Mii/ir/t, II
Q. 15. 4(;.-).
1*. brought ejectment for laiul in 15. 's jios-
BCssioii. H. thereupon attorned to I'., und con-
tinued in jiossession. The shcrill' aftc-rwards,
on all oxccutioii ag.iinst I'.'s lan<ls, received hy
liiiii (tlie slieiill) hefore the attornnieiit, .sold and
conveyed the l.ilid to |). , who then lirought
ejectinent ;ig,uiist Ii. : - Held, that \'. wis in
privity witli !'., and hound liy the sale : -Hold,
also, fh.it the levy was sulliciont, tiiough tlio
sheiitl had not ni.ide <'in cntiy on tlie land :
Held, also, th.il as lioLWeeli the parties, proof of
the Ii. fa. against I'.'.s lands, ivitiiout proof of tlu:
judgment w.is siillieieiit. Dmi'i^'iMy. linidfnrd, \i
(,'. 1'. \:^\).
Wliero ojectiueiit is l>roUght on a slierifT's
dee<l against a sti.inger to tin: execution dohtor,
it is lioeessary to (novo the judgnieiit on which
tho execution issued ; liut (,>ua'ro, per Hraper,
•T., where the judginciit ilclitor is the tenant in
posses.sion, ami a .-.traiigor to the jiid;,'inent and
to the tenant comes in to defend - whether any
more neeil ho proved again.st such defendant
tli.in Would iiave heen iei|uircil ag.iinst the actual
tenant ; or wiietheran appheation iiiiist he inaile
under 14 it l."> \'iet. c. 114, s. 2, to strikeout!
hi.saefoneo. I'ury v. I'i'iHnil, VUl \\. Trl.
In ('icetnient, claiming uiidir a sheritr's sale 1
on .'in execution .against oxecutcu-s, o))t;diic>d on i
their confession : Held, no
writ .against yoods had i>ot lieeii ivturiied lieforc
the Ii. fii. Kinds issued, nor tiiat the executors
hail not prov-d the will, for liy eiuifossing judg-
inent they acceptcMl the ollieo. Held, also, that
tho c(Uirt could not go hchiiid the judgment cveii
if there was an\ thing to impeaih it, which did
n..tupi)oar. J/k/-./. c/V/r v. yir/io/l, \iU). 1'.. (itKt.
In jectim nt ag.ainst defendant claiming under
a sheriir'a deed : Held, that the fact that the
writ against lands appe.ircd hy tlio dcoil to have
licen issued on the s.-imc day as tli.it .against
goods was no olijeetion. h'dilm it al. v. Md.nnU,
1; (,). |{. 17:<.
While the pl.iiiitiH' in an ai'tion Imys in tho
dofondaiit's land under the execution, ami hrings
fjeetinont upon the Hherid's ileeil, it \n not
lieeoHsary lor him to shew, in proving liis ease at
first, that a Ii. fa. is.sued within a year after the
juilgment, or that an oxeention against goods
was taken out. Jhlis/i' v. Ihiritt, 18 (^>. 15. 155.
In ejectment, the plaintifTa claimed title under
a Hhoriir'B deed, purporting to ho a conveyance
of the land under a veil. ex. ; the deed, how-
rely on )iroof<.f the shorilV's deed ,111,1 .salidiyliiiu
under the Ii. fa. lands. Hoe d. iUind ,-. S|ii,||,
•.: .Stark. !!»!», referred to. l;„lsf,„i v //„,/;,'
17 ('. I'. .'KM.
In oje( tment, upon a shei-ill's s.ilc umlir ,1 ti.
f.a., lirought .-igiinst an allegeil tenant of tiii.
executor of the delitor, no eviili'iii:!; t],■^.\ \^
given of the title of the executor, „i- nf histi,.
tator. .Siieli tenant cannot, after jiicli^nifiit i.y ;
<lefaiilt agiiiiist his landlord, as exccuti.r. wtiiii ,'
the defi;nee that the latter was imt cxtcut.ir
:-lli,iiii V. W/inlui, 15 c. r. ;tl!».
Hold, in ejcetmeiit hy the sheiill s vin,!,-
land, under a sale on n Ii. f;i., tli.it tlic |M(.,lu,ti,inl
of the veil. ex. under w liich tlie .sile tuul, Y\m,\
and of till.' slieritl"s ilccd, wliicii n;i itni tiuli. 1
fa., was sulljeieiit priiii.i facie evi.leiici: t ifiiii,!.!j
the lilaiiitill' to recover against the jiiii'iiRntJ
dohtor. Liiirv. Jn<k^, ■-'! ('. I'. Ii;<. °
■\ ]illl'cli:iser at ,1 sIk :
on ;in exoeutioii at."iiii>'t a iU'Vivt,|
.•^jl'lll'iM I'J
'in , Iliri/fU
t)tl„ r ('lis,
of lands sol
tikes in luvfereiice to .-i piircli;H,r mi ,1 >iil:
i|ilent execution, thouj;h prior jiiiluiiieiit, iiiiiiiul
tho exi'ciitors of the testator. />ni d. .•l«/.//'„v,
//ulllstir, 5 ( ). ,S. 7;V.t.
Tho .sheriir 's ileed is prima fncie evidiiia'lliM
the writ w.is delivereil to the sliciitl.ui'l tlicl.iii
.sei/i'il and .sold uiidc!' it. /><» il. Sii'iil''ifil
lin.int vt III., ;i (). ,S. !)(» ; Mii.'lnll V
:i ( '. 1'. 4(35.
In ejectmoiit hy the sherill's vtinin' fir lam
icctioii that the!*"'''' in execution, the writ of exei iiti'iii i.'-Milfii
■ oicntly j^roxed liy its .-iwanl on tlie mil, Hitli.ii
producing the writ itself. iJiu il. .sV,»-;l-,(,;/ rj
ll'((^/.S II. T. (I Vict.
As to tile right of a piiivliaM.r .it >liiriirV
to set mi the deed in the liivst plaii' ;is v.iliijj
(pioad the lessor and lessee, ami tluii tu iv|pii'l
ate it as invalid, ipioad the cxi-ciitiiui crolitdlj
/Joi: d. Mi-riiirs,„i v. Iluntii; 4 (^ 1!. 4-III.
Where a title is ple.ided hy ]imrlia.sc;itsliiriS[
s;ile under ali, fa., the judgiiieiit ,-ii|i|iM-(iii;siic|
Ii. fa. should he set out, .-iii'l it slicniM WiW-m
that the shcrill' .seized while I lie writ w.w 111 ! r.t
Mr I),, mil V. Mi'DuikII, !I t,". H. '-'.v.!.
.•Mthouyli a sherill".s deed relates luick 1 111
day of sale for the imrpose of ilelVatiii; i"l«(
mediate conveyances, still the viikIi'u c iiiig
hring ojectmeiil until execillion tlieivef. li"\Ui
V. liinbiii, Il-'C. r. 5l'.t.
The .sherill'H ileed was not prodiucd, -mv\ iftj
giving evidence of a seareli, wliuli tln'
hold sulliciont, defendant, in oi.liT tu prJi
it, put in an exeniphlication of tliu jii'lgmj
and of the Ii. fa. goods rctunied imlla M
1141)
EXECUTION.
1450
:li:isi-l' at iv »li>^
;lltiiill aj.'HillJ't a ill'Vlw,
;v piirch ixr I'll ii *"|"*'|
1 iirior jifl-iiiiMit, ;i;'imt|
tatnr. ■ /'"' -I. AMf't\
M^ .,fao(.'atiii:;ii>w
t,till the v.iuk'f o.«m^
oiili.iiitlaTi"'' '"'
1 ji,, |iiMiliu'i''l the ti. fa. l.imla fouiicl iiiiicmg
th'i«l»'i">' "' ^'"' '''"''''''' «'"'■" "lt'<'.'is('<l, witli a
„„'iii irvmiiliii .vniirXL'il, writti'ii iin.l .si},'iii-(l l.y
,1 , slu'rifl' st.itinf,' tint this Idt had hecii hoM at
l",^jlf, sale, ilth DiMLiiiUiT, ISlJl, for fpJ."), to
\|" Willi liail liaiil thf shclKVn fcis. '^llL'^'"•.(7/('
■|'V,j„j,ij. till' •iilvfi'tisi'iiiunt iif till! sahi of this
1 tiiii tliat ilay iii'ih'f the oxci'iitinii, \va« also
rKl'iinh -^ iiii'Miiirial was then |iriiihic('il frniii
}, |.^„ristrar'^ hII'h'O <>f a dci'il ilatnl the Kith
DcyciiiKt, \>^W. hy wliii'li thi' slnTilt', in cuti-
siiliratiim' i>f ••"'-"'• K'">iit<''l '''•'« intiTist in this
IittiM- I'lisscs-^imi liail not liiii'ii taki'ii uiidfr
j'l,^,.|ll',,j,,.(l ilvTil till fi^htccii years aftcru-anls,
but it liail '.'1""' ''"' ''"' '"'''' <'i-'hti'cii years in
loomliiiiw with the title ilerive.l tliniii;,'h it: -
Hell that till' sherill' I'lmM, in \S'M), make a
(liril uiiilcr till' Nal.'Df IS-.U. niitwitliNtaiiilin!,' the
1 (Itlitiii'Vilt'iitli ; ami that the eviileiiee was snlli-
' cint tii I'stalili-ih fun.'h deeil. N'arianees hetweeii
tkaiiiiiiints ill the jnilfiinent and ti. fas. were
liclil iimiiati'i'ial, as they eunld not avoid the
j jjl,.. ['iilils \: J.irhi(i.-<l<iii, 17<'. I'. l'>.
Tbi' iiiirclw''''''' ^''■'^' *'" ''""' ""'li'i' 'i shi'i'iH"s
sale is priiiiA fai'i<' L;i>od when the sale is made
I niMiii a li'-il writ, and a defendant seeking to
il,lV;ittlii' sale mi the enmnd of .'iny ilefeet ante-
I n„r t" till' writ, tiiiist shew eleaily and con-
I d'lsivi'lv til it tiu'i'e are those defects. Aic d.
I ji,.l:lln,i \: /■'ll';/((.v«'/', "> <i'. H. .")ir).
Till' title of a jiurehaser at sheritV's sale is not
liaMf to iHMlt'feat'.'d liy irre!.nilarities in the i)ro-
I ((fi|iii;>s aiiteriiir to the jiidLrnient. So loin; as
the jii'liliiii'iit sniisist in full force, it Hii]H)(>rt8
j tiic oxi'iiitiiiii, and the execution suiiiiorta the
\v\f. Ik
lldil, th.^t the clofciidant in this case, claiminj;
1 aiiiKra slioriir'-i deed n|ion a sale nndei a ti. fa.
Ws wliii liiil iMirch.'i.sed the jiidi;iiient ill the
C'lirt 'if l!ri|iit"'ts, at whose instance the ,'ictioii
onit w.w linniu'lit, and who had |iiirchased the
jjiiii ill i|iii'stiiiii under an execution in that
ictiiiii, wa.s hiiinid to shew a jiidmnent to war-
nnt siK'li I'Xi'iUtion. Mr/hn/i d. O'Cuiiiiur v.
Ai/i"', I.') <.l. II. ."Sti.
(i. Sillill'l ilslilf Sillr.
Tliecciart refnwil to interfere ei|iiital)ly to set
lisiili ;i slu'rilV'-i sale and covenant for thi; |iay-
I wit "t till' )iiu'ch ise mom 'V entered into thereon.
1>-I\. I.nmhi't. 'lay. 4(;:{.
Will re an aii)ilii'atioii w.is made to set aside a
I Bit iif land liy a slieritl' and dt'lay the execution
lolaiiiiivi'yauci^ to his vendee, and notice of the
jnidtiiiii anil rule had heeii ),'iven to the slieritl'
|laillil;iiiitilV's .■ittiiriicy, hut not to the vendee,
Itheiiiiirt rufiiseil to interfere. MrlliU'm v. Mc-
\l)m<\,IA'.. T. \{ \'ict.
Tliii ocuirt has uutliority to declare void a sale
jdflaiiilsl.y a shcritr. Slrdill \. .\fi-<l/,i.ihiii, G
1 Cliy. :)'J4.
Thf I 'iiuri (if Chancery will, in ;i jn'mier case,
iRtasiilfailouil for lands imiii'o|ierly sold liy the
ihmli uiiilur comiihiii hiw |iroccss, and will not
iwvc a (larty to the reniedv at law ulono.
Y''imiMI\:SmSih, 10 Cliy. '-'Ot';.
lUl, tlwta juili,'inent on sci. fa. against H.,
ilidiciriil tlie (luceased owner of the land, nnil
a ti. fa. thereon awardin;.,' the sale of Lands, of
which the li.'U'ty dec(':i>ed v .'is sci/ed on a siicci-
lied day, previous to which he died, could not
sustain a iiiirchasc, and tli.it a aheiill's deeil
under such judgiiieiit and li. fa. could give no
title. \'iirii/\-. Miiiiliriii/, Dra. 48t>.
The heir at 1,'iw is entitled to ri'cover from a
sherilt' the snriilus of moneys arising from a s.de
of his ancestor's l.'iiids on a li. fa. against the
l.'uids in till' hinds of his executor. /i'"i/'/'i .< v.
/liHir, '.i (). ,S. 27ti.
The statutes 4.'l Ceo. III. c I, and '_' < ieu. | V.
e. 1, s. 'JO, cle.arly coiitempl.ite a |iiililic sah; in
regiird to lands, and that has alw.iys hcen the
course Kith with respect to lands and goods. —
Per Koliiiison, ('. J. Jjni- d. Millir v. I'ilf'iniij,
.-> (}. B. 7!l, SS.
Where the execution creditor hail been paid
his dclit in fill in ISIO, hy the assignee of the
shcrill's vendee of land sold iiiider a ll. fa. lands
the court, upon the f.icts given in the report,
set .iside .'in order in ch.imlieis, olitaiiied liy tlui
.ittorncy for the assignee, and as if ,it the instance
or with the conseiitof the execution creditor, for
the issuing ,'1 li. f,i. lands in l.Stil against the
execution delitor, Imldiiig th.it it M ,is not I'om-
petcnt for the exi-ciition crcilitor .at that distance
<if time to elect to consider his ilelit unsatistied,
and to act ii|ii>n tlu! assniiiptinii that the person
who paid itdid not make the p.iyincnt in jirivity
with his dchtor. Knnl: o/' I'jijhr i'linufhi \.
I Miti-jJui, 7 <i>. 15. ;V-'.S.
The declaration (which is set out in snlistaiice
in the report) w.is held insuMicieiiL : l.sl. lie-
causi! there was no averineiiL th.it the sherill'
seized hefore the return of the writ of ll. fa
against lands; 'Jnd. 'I'hal it not apjiearing lliat
the s;iid rent w.is anything more than ii mere
rent seek, it would not lie li.iMe to sei/ure under
a li. fa. lands. JJui,U"ll v. Tnnihull, 8 Q. 15. C'J'J.
(,)na'ro, does a rent eIi;irgo coiiii' under tin; .">
( !eo. 1 1, c. 7, s. 4. /').
In .111 actiiui against the i-herili'for .'i f dse return
to a li. fa. lands it appeircd that defeiid.iiit,
after the rei'cijit of the pliintitr's writ, received
another writ, at the suit of one S., and under
this seized land owned liy the delitor, and upon
which S. had a mortgage for n-iit, .'•■i. 's judg'iicnt
j lieing for arrears of rent secured hy such iiiort-
j g.ige. S. lioii);lit the l.md for the amount of his
j judgment, ,'ind paid the shcrill's fees. At tho
j trial, however, it did not a|>pear wlicther di'fcn-
j (hint sold only the eipiity of redciiiptinn, or tho
, delitor's interest in the land, exclusive of tho
mortgage. 'I'lie court si't .aside a xi'i'dict for de-
I feiidaiit, and gr.mtiil a in^w trial with costs to
aliide the event. )'"»»;/ v. /I'lliii, i {'. 1'. ,"».'{7.
The plaiiitiir in an oxeiaition ag;ii;;st lands, is
expected to point out to the sherilV the property
of the delitor, lint his not doing so does not
relieve the sherill, if liy re.'isoiuililc cminirics
he could h.ive .iscertaineii the fact. Win re th'j
depiity-Hlierill' had noti(a.' of the delitor ow niiig
lands, it w.is held notice to the sherill', .•ilthougli
the latter li.id no |icrsiinal knowledge on the suli-
jeet, and he was held liahle in .in action fm a talso
return, l/n/rldmii <t at. v. Itniiini, (!('. P. 4.')'i.
A. liy parol agreed with ]!. for the sale to
him of Certain l.iiid, received part of the luice,
and gave K. pDs.sesfion. A. auhauipiently as-
lir.i
KXKCUTIOX.
11
J .It'
si;,'li(Ml liy
to wlmiii In; w.is ilidtlittil. 1". iiftiT thin llM.sij,'!!-
liifiit dclivoriMl to tlic xluM'iir iiii oxi'ciitioii iiu.iiiiHt
tlic Iiuitis of A., ami piiri'liaHiMl :it tln^ sail! the
luriiis so a},'r(i'il to In; sohl to I!. ; Hchl, tliat no
intcifst ill thf lain! passiMl tiiiihr thii shi;ritl"s
(ic.<i. /'„di V. /;;/,;,/, -.i !•;. ,t a. -ji.").
ii-ol thu halaiu'c of tho ]irice to S., ■ ^ja^jor, with an oxccutioii a;,'aiiist lands in t! .
hands of tliii HlK^rili; Ki-aiit.Ml an ii]jiii„,ti„|| (!
restrain futiiri! cnttin^, liy the; iihii-t),';it,"ir hi,
servants, a;,'ents, and workmen, it \„;,tu .i',,,,,]
that the itroperty was a seanty sciinitv i,,rtl
(dailiis of the niort;,'a^,'ees and the aiM.'.iint i\n,i
" ' ' ' ' ir<r-.(/)i V. i;iii„i,i,
SuMilile, that this eonrt W(juld entertain a liill
to eoni|)el a slieiill' to convey [)ro])erty sold
under exeentioii ; hnt the execiLtion delitornmst
1(0 made a i)arty. Wilhum \. Smilh, "> Chy. 203.
A person h.'ivinj,' a claim aj,'.iinst the owner of
a mill, liroii;.dit ;in action aLtainst his executors.
the exei'ntion ereilitor.
Chy. ;fJ!t.
'■, 1.1
V. VKNUIIhlM KxCfiW..;,
A veil. ex. aK.ainst lands h.iviiiy |„it ^ f,,,.
days lietweeii the test(! anil n tiii'ii Is irn.'iilar
. altllon..dl the statutes ri'S|,e<tiii;; the test,", 1,1,'
an.l r,i',,vire,l in.l^'nunt. .\n ex.'cntioii aj.'.unst i ^.^.,.y ,^,„| ictnrii of th.^ li l.i niiv
l:,n,ls w.is.sne.l outami pla,'.',! in th.^ hands ol ^.„„;,,li,.,l „ itj,. Armn,,,- \. .I,uhs,
tlu! .'.Iiirill, iimler whnli .ill the lainls ol the
testator, of which the mill an, I mill iiremises
follnid a poiti,,n, w,re ilnly ailvertiseil Cirsah: liy
till' siieriir. . The list.itor liy Ids will h.ul deviseil
his l;ui,ls to his relations ; the mill uinl mill
Iiremises to an infant, on his att.iiiiiiiK twenty-
one, his father iliiriiij,' ids minority lieiiij; (Mititleil
thereto. I!y an ai,'reemeiit maile liy the .adult
de\isees with a lii,:iiil of the I'aiiiily, it was ar-
raii;,fi',l tli.it this |ieisoii slioiiM alteiul at the
sheriU's sale and l>i,l such an ainoniit for the
whole |iro|ii'rty as would cover the exeentioii
delit ami costs, an, I In; .slioiili! imlil the .same for
thi^ se\ cr.il owners. Aeconlinyly, lu! .ittiiiileil at
the sale .ill, I lii,l the sti|iul.iteil amount, the
jiroprictors anil their aj;ent als,) .itteiidiiii; there
and |ii'e\eiitiiig any coni|,e'tition hy openly aii-
liouiieillf; the arninneliieMt whi,'ll ll.ld liei'ii
maile ; ami only <iii,: hi, I was made for the pro-
piily, w hi, li w.is duly coiiveyiMl liy tin; sherill'
to tile pun h.isi'r, who .ifterw.irds conveyed to
the d'vi.sies their respective liirtions of the estate
upon Iniiiji |i.iid ii proportionate share of the
amount liid at the s.de, except the mill and tln^
mill priiiiises, wliiili the juirehaser ''etained, a. '
o,,iipie,| ami improvcl diiriii^' the miiniiity oi
the devisei;, who oil his attaining his full ;!),'>•
dein,aiide,l a conveyance, which deiiniml the piir-
eliasi'r lefiisi^l to eoinply with, alleging the pur- 1 liand, and a veii. ex. issii,Ml, to «lii,li lli, r, w,u
eliasi! thereof to li.ive iieeii for his own lielielit, i a ri'tiirn lh.it the sherill I. id iii.nl,! CM, ,'iii,i no
wlieieup,iii the devisee filed a liill to compel the j further lands ; .in .alias veil. ex. tlnii issue,!, rcii-
])iir,li.iser to carry out the airaiigeineiit. 'I'lie , tiiig.i Ii. fa. lands and a return Jhiretn of pkkIj
»oi'r(, umler the lireumstances, held the pl.aiiitiir on hand for w.int of Imyers, am' .^■••Tiiih ..'niig
entitled t'l iviU'ein the mill |lcmit;r« ; '".ml that the sherill', as he had hef, ,-, lieeiuiiiiiiii.iinliil, to
till' .•iiiiiiigenient iiiider w hiiii the ]nireh;i.>- • was i sell tiie lands liy lilni In form ,ii,,ies,i|,| tiiliin.
ni.idi! at shei ill's sale w ,is ciip.dile of lieing proved ' The sheritl', iiftei wanls, in |s.")l, i xiiiil,',! .i ijinl
l»y parol. Mrddl v. Mr<;/(i.-(/iiiii, (i VAiy. 'A'24. reciting that In; liail sei/.eil tli.s l.uid in ,|iiisti"n
,1,, , 1 ■ .•„■ 111. -u f i' under the ali.as \eii. ex., and s,,|,i il t. ,."<., tn
.•\lthiiUL;li plaintitls hail lii;eii guilty of great . , , n , i ., . ,, in
^ -'• - " ;' . '^ . whom he eiinveveil : 1 e <1, that tie siei'iinl
i.'ivc Ikih
ay. I!.-,.
Hilt it need not have tliree nii.ntjis l„t\i,cii
its teste and return. LuiidrKii, v. M'ic,iiii,-l,„\
(). H. -.m. v. ('. M.ieaul.iy.
Nor, under t.'HIeo. III. ,■. I, u,.,,] tlur,. In^a
y(;ar. />,/, d. Distil \. M,l.,,,il, 'My |i. •_»)-
Neither a sherill' imr his deputy iiii iiirstilywi
entry, sei/ure, and sale of ;i i|,'leii,|,i],|'s p„„jj
nndi'r a veil. ex. Slall v. .l/<7,,,„/, '\\ 'f. ,'{,^4
\'iet.
The sherill' 111. ly sell under a veii. es. .'iftirthc
return day. liniih of I'. C. v. Mnrf.irl.mr 4(i
15. ;{!»(;. I'. ('. Mei-ean. ' ''
hefeiidant in ejeetnieiii elaiiiicl iiii,],r,i slier-
j ifl''s sale. It appeared tiiat a Ii. f.i. was ivtiini.4
: lamls on hand, and a veii. ex. i.ssiicl, tewjiuii
j there was a return of l.imU sold fur til, ;iiii| no
j further lands ; Imt this last [lart w.asuf ii„,'ir,/,;t
there heiiig 11, 1 Ii. fa. resMiie. All alias Vfii. m.
then iKsiied, instead of an alias Ii. f.i., ,iii,l uii,l,r
I this the land in ipiestioii \\,is t;ik,ii an, I snH.
Seinlile, that sneli s.de i-,>iild not lie sii]i|j,,rtiii.
(' lid mill i:t v. Diilliir, '1'.) I), jj. 'I'.l!!.
In eje(!tiiient, where defendant ,i.iliu,',| iiii,l,r
a Hli(;riH"s deeil en an eX(;eiitioii aL'.iiii>l I.umIs, it
appeard that a Ii. fa. was leiiinn ,| l.in,is ,in
<]elay In .applying to this court for an iiijiinction
to restrain the sale of lands under an execution
at law, yet a sulliiieiit case having lieeii made
out for ,111 enipiiry, the court granted the writ
■ III .111 Intel lociitory iiiotion ; the jilailitills iinder-
t.al.iiig to proceed to an examination of witiiesseH
within one month after answer tiled i>.iid hearing
the cause fortliw itli thereafter, paying tlii! costs
at l.iw iic'iirred liy reason of postponing the Hale,
and p.iyiiig iiiti^rest from the time the sale was
to have taken place until the time (if making the VI, Al.lAS, I'm
decree ii the eansi;, in the invent <if the sale
failing to reali/e enough to ]iay the full anioiint
of the I laim under the exeeiltiiin. 'J'/ir (Uimiilit
I'l rmini'iit Itiiililiinj Suriili/ v. '/Vc liaiik iif I'.
a, 10 (hy. '-'o:<.
Where a mortgagor in poHHCssioii was felling and wliieli receijit the slierilf liail Htatiil 111 lie
tinilter on the mortgage preiiiiiieii, the court at | ruturii of the writ of Ii. fa., the tuiiit 1 nln '1
the iiiHtancc of u judgment ci editor of the mort- ; an aliiui to iauue. J/iuiit rUi/ v. Ouulil, Tiiy-
not he »np|iorted, »■ ' tiial the HJurlir's iki'il
p.issed nothing, for the pnicee'lings sliiwril tli.it
this land had imt lieeii seized or aiiveltlse,! ii]i to
the return of the lirst veii. ex., aii'i linn u ,« no j
Ii. fa. 'ands which could warrant Hn; s,,,,ii,lvi.ii.
ex. ('IiiiiiiIh rs w ('iiiji r, \l't I'. 1'. I HO.
See //nil V. (ioMli'i; l.-)('. I', l(»l, | It.".
KIKS, ( 'OMI lllil;N I \Mi III I'l.l-
I ATK. WUITS.
1 Where, witli a view of giving ilefeiiilint tiiii,;, J
the jilaintill' had, upon the iiiisiiiliinn.itmii "I tluj
deputy sheritl', given a receijit fur the il,;l't, uj
the only proper mode of st.iying tlie cvi'tiiti ", f
U
lilist laiiils III ilm
an iiiiuiictinii to
\\i: iihirtKa;;.ir, his
•II, it. Ili'ill;; «|l,:«n
ity rtcriiriiy I'l.r thi;
(1 tin: ail". mil cluo
till V. Ciiiii.iiln; i;i
liilviiiL! lint a i.\v
n turn in im^iiW,
:till>.' tllr tc-iti- lUli-
la. iiiav liavc \m\\
f,irts„n 'I'ay. Il.'i.
•(•(■ iiii.iitlis li.-twi'im
inn V. Miii'iittiriiii, 1
y-
. I, iii'i'il till ri' Ilia
/,..../, ;!(,». V,.'1'M.
Irimly ran jiistifyan
a il'lrlnlaiit's (.'unIs
Mrl.,,.,1, T. •!'. ;ti4
r a vi'ii. i'\. aftiTthc
. V. .\hlrf„rhll,',V>.
;laimi:il iimli'i" a slier-
a li. fa. was rcliiriwl
. CN. is.-lllril, III wliiih
^ SI ill I fur til, amino
t iiiii't warn if Mii'.'irwt,
If. All alias M'li. I'X.
ilias li. I.I., ami uinliT
was taUi'ii ami s'lH.
ulil lint lit; siiii|inrti,'il.
'.. .'r'.i'.l.
lalit •■laiiiii'l uiwliT
itiiiii ayaiiisl l.ili'U.it
i( liiriinl lamls mi
1,1 «lli|.|l tluTiMVIU
mail.: til, iiii'l "'I
.x,,tli,.|i lssili:il, mi-
ni Ilirl'i'tii iif (.'"'«is
^, am' >-'mii' ''H I
lici'll (■(iliiliiailili-''l,M I
irrii afnrusaiil takrli.
IS.'i-l, ,xi'i-ntfil:i'lii''l
th.s laiiil in i|iiisti"il
mil sulil it l.iS., til
I. that tin: X'lli' '""'''
a tlif slnritl's ilii'il 1
■lo'linns slir«i''l til*' I
,liira.lvfi-lisi'iliil'!" I
I'X., mill ll"'''' w '"""i
rraiit tin,' sirnmlvvii.
I>. 101, 1 "•"•
:i
f.
lllil.M ^^1' ""■'■'■
llT.S-
Ivinn.lofoliilinttinii!,
liii.sMif..nii:itiiin"''"«|
l,.i,ii iiir tlic il.;l't. ^
..Ifhail stat.'lintli«|
1 , thf court ir.UT"41
l/v. t/uii/'/, Toy- 1^*1
115:!
It [* .'HI i''''
itoiii' all :
til till' "nj;i
EXECUTIUN.
j^ai'i.irity 'Hily, aiiil nut a nullity', to liail iircviiiiisiy
111
1454
a irasr (if, |ir.iciiriil mic S.
ilia.s after ii ri.tiirn iif "giKul.s uii li.mil" to a|i|ily fur ami nlit.iin frniii tlii' uw iicr a ir
iiai
li. fa
a vrii. I'X. 1
qiiin it.
ill
aLMtHini'iit tli.it I', slinillil
IV ritiiriis " tliat tin: j^miiLs liail idiitinm- to wnik tlir .saim- .i.s a niicsiry, ,iml fruni
^.|,,,ll tllO HII..1I. ...; .- .".- .... ^:
K.,M.xli.iii»t''' l.y I'H.ir writs ; ami tl
til
Lirity H wiiiyo.
1 I
1'
itit.s rc.iiiilmr.so S. ri-rtaiii a.l
.1
y ill till' a|i|ilii:.'itiiiii alsn pay a .Klit iliir liy I', t.i liiiii, ainl tli.it i'
•V^l!
((1/
list it.
Til' ('iiiiiiinrfiti/. limit v. ,1/('/A>h(7/ j hIi.hiIiI ri-t.-iiii any li.ilam.' fur lii.s uwii
/., 1 <i. I*. •«><■'•
r. (;. .1.
On a lull I
111'.
liy a ere.
lit.
ir II
f I"
•liclit.
1 1 IK
.\ I'l"
rii;H
li. fa. issiii'il liy tin: ili'imty .'l.'rk uf
,'ii (if an (inter ciniiity, in wlii
tin
|.ai«
iiaviiiK
(if tl
ir cause li.i
lici'li clitiTcd 111
til
'11 III
illii
jl|il;{ni('lit
ildlltii ;
||,|,|, r.'!.'ilMr.
Ilcl.l,
at 'I'.
Iliat if sii.'li writ
liccii iiiailc iimlcr
|ii. •JDlli uf hi'ct'liilx'r, tliis a)i|iln'ati(iii ..II
im'K'
iilar, a lovy
liavi: S. declared .i, trnstec fur I'., and to have liii<
interest SdId : Held, that alllidii^h there wa.s
no rcMwItiiiK trii.st imr aiiylru>t iii.uiilested in
writiii;;, still thai I', had .<iicli .'in interest iiiider
the lease as emild lie re;i.li.'d in this .'.iiirt liy an
ei|iiitalile exei'iitmn on a |ii.i{i('r case liiiii^' niaiiu
for sin h relief; and to eii.iiile I he jilaiiitiH' to inako
it "111
till. Illtii I.I I'cl.rii.'iry won
late
ll.'h
such
I .lease, leave was yiv.i
I l(
jIs... tliat the fact of a (le|iiity clerk of the er..wii
(■ iiiit haviiit; traiisiiiil te.l tin: oii^Ljinal li. In. to
terms
Tin
'/
mils V
/'..'/, !•_'(■
Iiini t(
;u.-..
interest ot a delitor in
anninl mi
.ic'lil fr..ni
Tiu'iiiit.
Odiilil not iirejiidiee the |ila
iiitiir.
/(...li- V. '.'
I I', i;. .T.
::!. c. !.. ('Ill
llnliai'iin-
iliii'iniii;,' to iirevioiis decisions in this
CMirl,
tliatwlii'i'c a
li. fa. a''.'iiiist l.i
the crown, liiit not fully |i.'ii(l for at his death,
.111(1 not liatelited, is availalile ill e.|nity for his
creditors : and their rii'lit i... not destroyed liy a,
friend of the heirs |p;iylii;; the iiiir. h.i.-^e lin.iny,
1 .111.1 jirocnriii;,' the jiateiit in tin' ii.inns of the
111
i(. slicri
ll's hamls for twilve months, and n:-
tiiiii.'.i. m"
tliiiii,' having lieeii .hint: ii|ion it, the
'iiii"lit sell under an ali.is issued llnre.in
«itli"iit wailiii;,' f.ir a year from its reeei|it.
t'lm;/
!li.ril
n/iiMiii V. /•'( ri/iisiiii
\'lll. KMi(ii!si;\ii:s'r
ItiC
;tO',l.
Mm:. rrioNs.
,/„//v. !>■ hiKiiiiiiil III; 2» (J|. 15. "i.Hi; ; Mihill ' '|'|
I'l-iui'itir
'I, r.xy.
al li. fa
UiiH
t will not iiiterfei'i: .111 ,'i sfi'i.t lej,'al
nil V. Li'i'iHi'iiiilr, 1(1 jfi'.ininl only to re. Inc. ■ tin- sum emh.rs.-.l t.i levy
111 a li. fa. Miiilliiiiil
■'I, Ida. 4.''.i;,
ith tin: Hllel'iH"
All .irij,'iii'il li. la. with tin: slierill s return
Ikrniii, liaviiiy hi:.'ii hist, tin; |ilaiiitill' was
jll.iwt.l t.i issue a ilui>licate, t.i obtain a return
ivrw.iii'.iiitiii^ all alias. Mrl'^iri ii v. Stiiinhiii'iir.
T.T, ;\Vill. IV-
Tlu'i'.wts (if a eoiieurrent writ will not he ilis-
slj.inr'l iilili:ss it he shown that it was issued
mtfrlvt.i iii.ike a.lititioiial costs. Mi'Ki llur \\
OVm', ;t L. .1. H. *'• L. Chanili. Ila^arty.
l«<iii. (if sucoiid li. fii. goods, the lirst having
lull ritiiriicil, "money made" hy mistake. ;
/;,...(((/. V. .hiiii-s 'Z \.. .1. li.S. ('. r,. Chaiiili. ■
V'ii\Kt. I
.\li. fu. lands w.'vs |ilaei:il in tli.' sli.'rill s hamls,
wl, Ul'.ii'L' the return .lay, tli.' iil-iintills lile.l
tlinr liill in rcs|i('v:t of proiierty .if the delitor
Inwihili'iitly conveyed away. I Miring the peii-
deiii'V"! this suit slierill returned the w 'it " no '
k'ls, " and the iilaiiitills therciiiioii d.'lnered iili
»lii> writ 111 the slieriir Meld, that the plain-
t;li li;iil nut tlierehy lost th.:ir right to proceed
»llli iln s:iit ill eiinity. Sin; n^mi v. /•'rnidliii,
ISi'liy, i;t',l. I
\>: Ln ' . Xiil.viii, .'i L, .). 7'-*, p- 1404.
\ll. I'lyrir.Mii.K I'Ixk.citkin.
Where a suit i» hroiigiit for ui|uital>le c-eou- j
I '.lull lipiiist liiii.ls, ill ai.l of a ju.lgineiit at law,
till' lull iiiiiat shew fiiat an exeeiitioii at law ha,s ,
|b«:ii iilacvil ill tin: h.iiids of the sliuriH'. Slim
V. /Jiiii«i,/i, 14 ciiy. ,",i;{.
liiiuitalili: intere»ts uannot lie rujieheil hy an
I Hciitiiiii irt'.litor indcss he coniineiiees a suit or
1 lik's siiiMt: (itlier step lor the purpose during the
«miiiy iif tin: writ. W'ilmii v. I'mmljiiDl, 15
IcliV. ion.
l'lH.iiigins(ilvciit, luid iinalile to ohtain in IiIh
|«*iiiiaiii(;aL.iun; of ccrUiiu real cBtate which he
III taking out a li. fa. against ex( entois fur
costs, the costs directed to lie levied Inilst follow
the iiidgineiit ; and w In re the siiiii endorscil on
the li. la. is not waiiantcl hy tin' jnd;:nieiit, it
will he referre.l t.i til.' in.ister to t.ix tli.' proper
costs, and to rc.lii.te the en.loi seiiieiit a.'.'..rdiiigly.
'I'lii ti'iii-i liiiiih \. <liiiiii, I ( '. I,, ('liamli. ITU. -
Maeaulay.
In an a.'tion on a hail hon.l, llel.l, that the
un.l.irs.'iiient on tin' w lit uf e.vcciitioii lieing stated
to lie for a less sum than that mentioned in tin:
iinlgmeiit. Was no ground of speii.d demurrer.
h'lisidii I'l III. V. I.iiii'ifliiiiii/i, ',i (,». !'•. 47">.
Ten dollars is an e\c(.ssive einlorsenieiit on a
li. I.i. guilds for the exiu'lis.' .if the writ, and the
moment a writ so einhnscd is haiide.l t.i a sherilV
the Jiarty aggrieve.l .'.in .ipply t.i have a refer-
en.'c t.i til.' master t.i redii.'e the aiimnnt, ami
in.'ike the att.iriny in .lefaiilt pay the costs, even
tlniiigh the at'orney accepts a l.'ss ainoiint,
w liicli tile delitor tcinlirs t.i him, as aiullicient.
<:,rl,.i/ v. Wiillliri.l.ii, •_• I.. .). N. ,s. ;{;{|. (A L
Chanih. Hagarty.
\Vliere part of -a delit has heeii h.vied under a
li. fa., and the writ returned, eitln'r a li. fa.
residue or an alias may issue. Th.' former is the
more correct ; hut il the latter he issued, it
must, on the face of it, .'igree with the jiidgiiient.
T!ie endurseiiient must he according to the true
ainoiint to lie levie.l. //( . v. Xiilimi, .'! I,. .1. 7-.
-('. I,. ( 'h.'iinli. lioliinson.
A |ilaintiir cannot levy on a ti. fa. the anniuiit
pai.l hy him foraeertili. .'iteof {iidgiiielit. l/n'cli-
(/(.■-u;/ v. /y.///,v, •_' I", l;. I'JCi. 1'. ('. Huni- ; Will
V. Aiu, I ('. L. Chainh. 2l(i liiirns ; .l/cA>//<i/' v,
(Ifiiiil, 'A L. .1 14. -('. L C'hainb. liagurty.
I'laintitls, without having jirevioiisly issued
proeeHH, on ."{rd Octoher, IH."i7, took a eonfcH«ion
of jildgnieiit, and neglected to tile it, or a eojiy of
it, within n month, an pruHcrilwd by the Htatutti.
f^ <^'?
145o
EXECUTION.
14513
I mi
On 11 til IVliniiiry, IS.'S, tliuy chUtlmI jiul^'iiii'ut. I
On 'Jltli < •(jtipl>cr, IS'iS, i.«sufil a ti. la. goods;'
liaii MMMii' ivtuniiil nnlla l)on:\. On lOtii Angunt, 1
IStJl, issiuil a li. I'm. liincl.s. Had sumo ivni'wcd I
loth All-list, ISC.-J. (In -Jnd Kcl.iuaiy, 1S(;;{, 1
aniindcd till' I ndoisi niL'iit of levy on writ, and 1
nfttiwards olitaiiud a .sniiinion« for leave to I
ftnieiid tlie eiidor.seniunt on wiitM of li. f.i. lands,
ill the liaiiilM of the .slierill, liy inereasinj,' the '
amount endorsed, or for a new writ of li, fa. 1
landa :--Helil, that so long as the eoufession was
ojieii to tile ohjeetion of not li.iving lieen filed |
within tlie niontli, and so not valid to siiiniort
the judgment, that the anieiidnn'iit eoiild not ,
lie .illowed. .''enilple, if relief eoiiM have lieen
all'orded to iilaintiil', it could only have Keen l)y j
n.:duiig the other cxeention ereditors of defen-
dant and the sheriti' jiarties to the suninions.
Miijiii n it ill. V. JJiir'ii, l) L. .1. 185. — C. L. C'liauib. |
— A. Wilson. I
III ;i li. fa. and the endorsements tliereon the
Iil.iiiitills Were styled defeiid.ints, and viee versa,
tlie words lieiiig transjiosed thronghont, and the
chri.iiian ii;imis of tlie defend. ilit were also trans-
IKised: Held, ile.illv ill'i gul.ir. Din-Ul.iuii 1 1 iil. !
V. '.'nnit/i, ,") 1'. I;."-_',"kS. ('. I,. Chanili.-Mor- i
rkoii.
IX. Kknkwinu Whits.
Held, tnat under ,see. '2V.t, of C. L. I". Act,
writs of exeeiition (exeejit a ea. t-a.) eoiild only
Imj renew edoiiee. yt/xnii v. .Iitrri.i, VAV. I' ITii.
No renewal can t.ike jil.iee v lu'ii .sm 1 writ has
been acted mioii or a levy made. //'.
27 Viet. e. 1;!, s. 'J, which allo\» ,cl reiie.ated
renewals (now ('. F.. 1'. Ait, .s. •.Mil), was lield
not retrosiiective. Mill< r v. 11 nn r Miiliiiil I'lrv
In.tiiriUKi Asniiciiilli'ii, 14 t'. V, tVM.
'J'lie taking a w lit from the sheril ' for iviiew;il,
is not an aliandonnunt, giving iniority to other
writs then in his hands, Imt the rejilacing the
writ in liisliiiiids ii|ion s'lcli renew il, gives it the
same position ;ih it held jirevions to the removal
of it. the i|nestioll of the ohjeet of such removal
alw;iys heing a matter of fact for decision uiioii
the circnmstanciss. /,'..
V. Jiiiri.^, I,-! ('. 1'.
40.-, ; Mior V. .\/,u,ro, 2:1 (^ H. 13!». j
The day of the teste of a li. fa. lands is inclusive;
fiotliat ;i writ i.ssned on llitli May, KSlil, exjiires :
on tlie l.'itli May, IS()2, and a renewal on the j
Kith -May, ISliu', is too late. Jlmil: «/' Miui/rinll
V. 7'.'///o;-, I,-. I'. V. 107. I
\\ liere shortly Iicfore the return dav of ,1 ti. j
fa. l.iiids, tlie jplaiiititi' olit.-iined it from the shcritl' |
for renewal, and did not reliirn it for lifteeii '
(la_\s, when a year from the teste had exjiircd :
—Held, not an aliandoiimeiit of the jilaintitl's
rights under tlie execution. Mi'inilh/ v. .!/<
Kur.ir, 3 K. & A. 201).
X. AHAMioNMENT.
AVhcro ]iersonal iirojierty had lieen seized in
execution hy a shcriHand aftcrwanls aliaiidoned i
hy ilirei'tioii of the iil.iiiititl "a attorney, and a
inemoraiidtini of the suit lieing discharged given
to defeiulaiit, hut the sln'ritl' was afterwards
direited to luocced, and sold to the iilaintitt"
ill this action (tlie property in the nieivutinie
having been sold lionA tide by thed.f,.!,,!;,,,^ «|
hail left it in the iio.sscsNion of the .lifen.laUt "
this action); Hi'ld, that no IToiieity ji.i^'.^.i !"
the jilaintillby the sheriir's sale, as tl',,. livVlJ
been abandoned, and a bona tide s.ilr afti riv I
iii.ade by the execution defendant.' (;.,„//*,.*
ll7»Vr, ■} O. .^. 12 1. "•
A chattel was seized by the slientf, ,■,,1.1 hm
by him bi^fore the return of the; \vrit:-H|.l,| n
aiiandoiiment. Iluiiiilluii \. lUnnl;, 5 (|. s na
The sherilV, on the I'ltli of A|,nl, n^iy ^,
ceived a li. fa. l.inds, and on the Kith of Mp,v
IH.'^C), sold some of delVn.laiit's laud,, iiinlirV-
but other ijortion.s of tiie laud, thor.'i iii,li|,I^.,l'j,[
the advt;rtiseiueiit. [lublished ]iicvhinsly t,, tji t
sale, wi;ru not sold. There bcingiioadiniuiiiiidit
nor Jiostlioiiemeiit of the sale, imr any new a.l-
vertlstiinent, the slierill', in 1 »eciiiih,.i., |^';{^
liroceedcd to sell under the s.iiiie writ tlie hinJa
iiii.sold in ls;v;: but, llchl, that the seizing lUHWr
the writ of l.s;i,->, must be eonsiileied :u ;il,an.
iloiicd, ami the sale of IS.'tS void. yViLfV,,..
I run v. /'ii/iiii.-din it ill., " <,>. I>. ;{;>.").
Held, under the facta set out in thin cas.', thnt
there was no reasouabli- groiiiid to iire.-iiiin.;'!!
abandonment of the execution against lainis.
Mill/nil v. (if.iiniDoii. ,'1 (;. 1". 4(ir).
A shcrilT hayiiu; s.'ized goods under executinn,
took a lioiul for the delivery theicnf wlun ro'
i|uir'il, and allowi'd the debtor to reiiiaiii in
i>;isscsioii and carry on his business as hel'cuvtlit!
seizure ; and while the debtor so cMutinikii in
|iosse.ssion, and alter the return day of tliv writ
liad expired, ;i second execution at tlio Miit of
another creditor, was received by the .slitritl':—
Held, that the second writ took iireiwliiia' i.f
the lirst. Ciixtli V. I\'ntluii, 4 ('. 1'. 2.V.>.
Held, th.it under the evidence stated in tlii<
case, the slierill' could not be s.-iid to have al.;in-
dolled the si'iziire under a II. fa. goods, ir.r/', m
V. Jun-i.i, 14 (^1 r.. (140.
It a]>pearcil that the idaintifl's attonity in the
execution had directed the slu'i ill' imt to'si'll tW
gooils of I,., but to levy ii|ioii aiiotjienleliliiliiit
in the suit; and that that defendant Ijaviiii!
remonstrated and urged him sell, he toleL'ni]'liiil
to the attorney to know if he shinild d.isii, :mil
in aiiswfr, was tohl that he iiiiist act as ho
t! might lit, according to his own iiiilL'iiicnt :—
Held, tli.it this answer was ••ili ahaiidoiuii.nt "f
the lirst ilireetiou. liuiiltuii it at. w Smiih. 11
ij. 11. 400.
The bailitV, having merely made an invnit'TV
of the goods seized under a li. ha. gueils, leaving
no one in [lossession : llelil, that tliey wnv \h^%
ill "eustodia Icgis," and therefore cuiilil net lit!
held against the landlord's ehiiiii for rent. Il''r!
V. /,'ii/iiolils, inc. r. ."lOI. See, also, .l/.//./,'/iv ;
V. Stiitii, 4 C. 1*. 248 ; Jtnlnii.^oii v. Fm-tiuif, tf i
('. I'. 427.
In an action against the sheritf for 11 l;il.«e|
return : — Htdd, that the long delav in res|»rtiif j
the writ of H. over w hich the |il,iintill's ilaiiniilj
(iriority, in the sherilV's hands, fmiii b.V.I toJ
KS(i2, was not, under the circiiinstaiicis statnlj
in this ea.se, in law an aliaiiiloiuiicnt, altlimiu
it was evidence thereof. Mi in v. Hall, I'.i C.
1'. oKS.
Taking a writ from the .sherill' for iviu'wal i^
nut an iibaiulunnieiit. Hour v. Jurrif, h'! •-'•
U.)6
till' lll'fclullUlt, wU
if tln^ ilelVn.laiit in
liri.\HTty )i;is.H,lt„
ill', ;is llu- li-\ V Ii.tI
Mr s;ilo aftinvunlj
iV'iiilaut, (;•..,(/,/ V,
hi' sliiTitV, :\'.\i\ kilt
Jk; Nvnl;~llfM, no
liMiik, 5(1. S. CiU,
of A).i-il, ISr.. re-
111 tho Kith (if May,
llt's liiiiil.-t iin.1i fit;
I, tlior.-'\ iiirhi'luil in
I lui'VlHUsly ti. tlii't
iciiit; imililjiiiiniiiiviit
ill;, imr any iilw a.l-
II Dl'itiiiIht, iMiS,
saiiio writ tin- lamlj
hat till' sfi/uiv iiiiiltr
cniisiik'ri'il iin a!i,in-
■i viiiil. Dije il,('(!w
W. WX).
nut in thin ciisi', tint
.'rimiiil til iiri'i-r.iii" "n
iitiiiii a;.'aiiist l:m<ls.
. I'. Ki.-i.
;iiiiils lllliluri'Xeclltinn,
•fry tluii'iif wlii'u R'-
(It'iitnr tip riiiiuiii in
)iiisii;i'.-<s as Iji'fiPivtlw
•litiii' !^ii oiiiitiiuicil in
•ctuni ilay nl tlit' writ
'I'litiiin at tilt Miit "f
iviil liy till' slu'ritV:-
■it tiiiik \iri'fi'(kin.'o I't
.1, 4 (.'. 1". iVJ.
viiliiii'i' statcil in tlii*
111' saiil til liavf ii'.ian-
li. fa. -mills. If'"''
liiitilV's attnnieyiiithe
^lu■^ill■ lliit tll.11'11 till'
Hill aiii'tlii'i'ili'iiii'l'ii't
|i;il ilcfi'iiilaiit liavniJ
1, lie tt'li'LTai'lii'il
iliiiiiM ilii sii, ml
It, ill- iiiii^t ;u't as \\i
his own jiiil'.'nii-lit :-
Jm ;iii alianilHiini'iit "f
(7 ii/. V. Siii'iih, 17
Iv iiiaili' an invmt'ry
|i li. fa. ijiiiiils, li'avii;^
111, tliat tlu'V wiRni't i
acri'fun' I'lml'l ""^ '* '
li'laiiii fiirri'iit. IM\
Si'.', alsu, Mrh<rA
,i.«,n V. /"/•''(«', '■'I
llic shi'i-itf fur » '■''■
^ii.^.U'lav inn'sin'i't'itl
llu' |ilaiiitills I'laimulj
Tliaiiils, fmm KVi'." M
Jiirriiin^taiici'S staliiU
liinliiiniit'iit, altlii'ii^M
.)/, ,» V. IMK IH ^'■
Ihuriir f'lr niu'walisj
Iv V. J'O'iv, i:h'. I.
1457
KXKCrTToX.
14:)S
inv 1A.<;»- V. yi'>nro, '2^ Q. P.. HH ; M.mUhj v.
j);A/«:;f, 3 K. & A. •.•0!».
Iklil, ''"** ^'"^ iiiiiiailjonriiiiiciit of tlm .siile
Vivprtiieil f'"" 12th Sfiitciiilii'f, IS(i:?, (whiili iliil ^
n'.it tike lili''*'- ' •'""' *'"' r>'''li<''i<ioii of iiii iiiiiia-
rentlv iiiili'iH'iiili'iit notice in tliu folhiwiiig .luno, \
umlir the iilaintitl ".x veil ex.. iliil not iict'i'ssarily
juiil .HHioliii'ivi'ly t'oiixtitutf nn iiliainloiiiiR'nt of
♦hi' i'l'izti''''. "I'll'' '"*'' '"''■" 'awfully nnuU' iimlcr
tbf fiifiner writs ; althoiis.rh im jinHitivt' nilu
ci.nH 1« l^'"' ilown n.i to what woiilil coiistitiito ;
anali.iniliiiii"i«'»t "f l'""ls once si'i/i'il, this litiiig
mattor of fait which must rest vory iiiucli .
ui«,nintt.iition. IIhH y. ilusl..', 1.-, C. 1>. 101.
Hilil, alliriiiiiiir Oswal.l ;•. liykort. '1-1 (,». 15.
%A tli.it till' i-^siiiiij,' of a li. fa. laiuls ;uiil .'ilias
z fa, immhIs I'oiH'nrrcntly was oliji'itiinialiki ;
tilt tbt the latter, not haviiij.,' liciii actiil on,
1,1,1 l^jaluiiiiloiuil ami the li. fa. lands retaiiieil.
J},, Viitariii li«iik V. Ki rliii, Ki (". 1'. 3."). 1
In all .ii'tiiiii against a sIutIII' for a talsc ritiirii,
jjj,,.,f(iri',l that on the ilay ln'fori' tlii' iilaintiU's'
Tnti':n»<-''" ''^' '"^■'^■^■'^'^''' '' ''■ '"■ ''.t the suit of
one K. fur "'Oil' than the value of the ilelitor's
n<,U, anil g.ive a warrant to his li.'iilHF, who
onlviriiit tirtlie ilehtor's shoji ami tohl him of
it, Wi-ausc he thiiiight iiioie eoiihl lie got liy
alli.win" him to go on with his linsiiics.s. On
;[.,- [,Liintiff'.s writ he ilid nothing. The iilain-
t-lTj'.ittiinifV wrote twice urging him to act, anil
nlrl !iim, aiul in Felmiary. ISdl!, he retiinieil
thitwrit nnlla hmia, K.'s writ having lieeii ]iru- ,
i'..,iisly ri'iicweil. The cn'iit heing le.t to draw
isfiriiiiv.i of fact: Held, that as a matter of
fid llii' slitritl' never sei/ed, or that .is a, matter
I (if h« lit! aliamlonod it. Fuslii-it ol. \- (!lii.-<^, '
iSyK'.^"- See, al.sii, MrO'iri rii y. McCmtsldinr
".'!., Ill C. 1'. itia
XI. riUuIUTY OK KxKifTlONs. j
i. i, *< ';/" Priorilii I'll JJinrtiuiin not fa Exccdfi'- j
IVhiTi^ writs of li. fa. goods wore (daced in
j tk liaiiils iif a p-heriir hy sovtral ]ilaiiititrs, witii
I dirrttiuiis til levy, I'lit not to sell unless another
JHCiutliiu was ileliveied to him ; and having re-
Iftivtil aii'itlier execution retnrnalilc the .same
ittnn as the fnruier executions, he letiirnod it
|lislhl«'ii.i.aiiil .'*iild under the lirst : Held, that
. skrill was liahle for a false return, the
Ifoctiiins liy the lirst execution creditors lieing
Ifnailuli'iit as to the suliseiiueiit creditors, ana i
I tic first ixc'ciitii 1118 thuroliy losing their priority, i
I f '..« t/ «/. V. Hiimilluii, E. T. 3 Viet.
Ali. fa. iiWeil in the slieritt"s hands with in- j
itraetimis lint to sell until aiinther writ comes in. I
BiKit in his hands to he executed, and will not
liiiilthegniiils, either against a siihseiiuent exe-
tltiiinora Uiiia tide imrehaser for value, /■'uufcr
tidv.SuM, 13(.». 1!. l.'4;{.
J«ili.niifnt oailitora having executions in the |
iliienffV haiiils under which a seizure had Iteen '
We, sii,aii'il an agreement giving the defendant
tteittnsiunnf tiniefor i.aymeiit on certain eon- I
ditiiM thiToiu luentioiied. Tjiwards of thirty:
aw iftiTw.inls defendant .Lssigned under the
'lii'lvcut act'*, the I'liiiditioiis <if the .igreemeiit
Wins., far iierfoiii.i.l :— Hehir 1. That
i writs were not in the sherill's haiuls for
laecation, wul that the assignnient lUiuU; more
than thirty day.s after their .lelivery t.i the
sherilTtook jiriority. /// n /.'./<<, ,'1 P. K. .'i'.l-t.
— C. L. Chaml).— .J. Wilson.
The county of Klgiii having a writ in tho
sherilV's lian.ls against the laii.ls of L. [irior t.)
the iilaintill's writ, (lass.'.l a ies..liiti..ii rei|iie.st-
ing the war.leii t.i ii.itify tiieir s.ilicit.ir ii.it t.>
eiifiirc'e such execiiti.iii until further instriU'tiniis,
which was transmitted to the si.li.it.ir. In May,
ISIl'J, the sherill', li.ing almut to a.lvertise, went
to the attorney, .ind was tnld liy him that ho
need not a.lvertise uii.l.'r the county's writ. He
therefore a.lvertis.'it I,. 's l.imls in the '.'":. "• ami
a local jiajier, umler otliei' writs, making no
mention of it. After tlir.'c weekly ins.'rti.ms,
he was .lin^cte.l hy the att.irney t.i a.ivertisu
uiion it. and thereu]inn added a note to the Im'al
a.lvertiseliieut, statiie.; that the |iroee.'ds ..f tlio
sale would alsiilie held li ilih' to satisfy this writ,
hut made nil change in tlw (ln-.'lli :- HeM. that
from the time of the .lirection t.» the sheritl' not
to advertise, which was thr same in eU'ei't as a
■ lirection to stay on a writ against goods, tho
eniinty's writ was not in the shcritl's h.-iiids to
he executed ; that it had tiieiefore lost its pri-
ority ; and that the sulisi'i|ueiit order to jiruce.'.l
could not restore it. Pile omission of the writ
from the advertisement wmild alone have lieeii
imm.iterial, as the sei/.iire .'iiid sale have relation
to all the writs in the slieriH"s hands lor exocu-
tioii. IloiiL- •>/ M„ittri •<! V. .1/»,.um, '23 (>». 1'.. H 4.
.Mthougli the fact (if ;; ]iarty not pressing a
]iluriesti. fa. in the sherill 's hands, .'oupled with
til.' iind.iulite.l fact that he lia.l place.l the .iiigi-
nal writs there not to he .^xeeiite.l, is e\ ideiice
on which a jury ni.iy tiii.l that. the later writ
has also lieeil ilelivered to the slu litl' not to lie
acted on, ami lia.s therefore lost its priority ;
yet, the jury having found otlurwise, the court
Would not interfere witli the vcvdict, as it couhl
not he said that there was no evidence to sup-
port it. K'Tritii/. \. Kiii-iti/, 1." (.'. 1'. ."(.'{1.
Tw.i exeeuti.ins against lands were in the h mds
of the sherilV, and the shiiitl had ad\irtise.l a
side iiml.'r the lirst writ. < hi the morning of the
intended sale the sherill was .liiccted not to
proceed with it, ami accordingly the sale did not
take place : — Held, tliit the lirst exeeuti.ui wa.s
thereliy jiostiioned to the seroiiil ; the direction
to the sherilV lieiiig peremptory, althougli it w;is
given for no fraudulent purpose, and altlioiigh in
giving it there was no intention of aliandoniiig
tilt; seizure. 'J'ln' Tni-^f iiinl Lmiii ( '</. v. (.'nth.-
l»-i-t, i;j t 'hy. 41--'.
2. Otlnr Citsi'M.
In determining the pri.iiity of writs, the court
will look to the fraction .if .i .lay. Hn /.■iiinn v.
Jiirrts, ;{ y. 15. •J.SO. See Cmir.'rst v, Mirhi,, ItJ
f. P. 1<)7.
A purehaser.'it sherill "s sale of lan.ls s.d.l .m an
execution against a .li'\ isee, takes in iireferenee
to a pui chaser on a siilisei|iieiit execution, tlioiigh
lirior ju.lgmeiit, against the executor of the tes-
tator. Ddi ([. Aiihljii v. llol/Mer, '> (I. S. 7:{!».
AVhere lands are coiiveye.l to a purchaser
against whom ju.lgmeiits are then registered, an. I
exiM'uti.iiis against lan.ls in the slieritl's hamls,
ami a 'iiortgage is tak.'u li.uk .m tlies.nne day for
a balance of purchase nuuiey, the ju.lgmeiits anil
1451}
EXECUTION.
'^
UCo
cxociitions at.tacli liufiiro tlie mortgage. ItiitUin i
V. Lrha;,,,/,; \{)(). M. 4!>.'>. {
It is a iiiattiT iif inilill't'i'i'iiut' uiuler '.. Iiat writ i
u wliiTill' sei/.cs and mcIIs tin; pioinTty of adclitipr, j
such »oi/uiv liaviii;,' ivlatimi to all tlif w rit.s at
tliL* tiiiii' in iiis lianiln. IK^ nnist apprnpiiati' tliu
money acconlin^' to the prioiity of tiiu writi.
J'din V. ./((/CM. I,'{('. I'. 4!ir>. Sue Hunk ij' Muii-
tniil V, Miiiu-o, 'SMi. K 414.
It i.s not illc^'al for aslieriir, having witlulrawn
from the (.iiNtocly of goods under a li. fa., again
to take iioMscssioM (hiring the cnrreney of tiie
writ ; and a .second sciziiu' under Hueh writ prior
to the receipt of anotiier e.xeeution give.s the tirst
Mrit priority. (Inti .* \. Sinilli, WW. W lu'i.
An alias li. fa. ;it the Hnitof H. was received liy
the then sIl( rill', I'., on the l2(ith of Septendicr,
]iS(>l, and having liecn lenewed was returned on
th'j 7th <if Septend)er, iJSIiH, goods on hand Is.
and nulla Imna us to the residue. This n^turn
was made at the reipiestof 15. '» attorney, although
there hacl licen no seizure, as the attorney doulited
whether the li. fa. could he renewed a sei-ond
time. On the 'l'Z\\i\ a ven. ex. and li. fa. residue
w.as delivered to tile same sheriU", and rem.ained
with him until his lemoval from oliiceoii the lOth
t)f Marih, 1.SII4, when <lefendant was appointed,
but no transfer of the writ to him hy indenture
was uiade until the !tth of May following. On
the l.')th of Apiil, IS(i4, the plaintitl's li. fa. came
in, .md soon after the dehtor's interest in curtain
crops was sold, and the i)rocued8 paid ovur hy
defendant to 15., wlio indumnitied him. 'I'hu
jdaintiH' thereupon sued the shurilV for falsely
returning his w rit nulla hona, uontuiidiiig (among
other things) that the return to li.'s alias li. fa.
lieiiig fal.sc to I!. 's knowledge and jirocurud hy
him, the veil. ex. and li. fa. founded ujioii it was
void, 'riiere was no eviduiicu of any fraud ; and
it appeared that 15. 's writ had been placed and
oontiiiued in the sheritl's hands for uxuciition.
The reason assigned for the long delay in acting
upon it was that the debtor's goods had buun
solil under execution in 18(il, and were supposud
to be exh.iiisteil : -Huhl, atlirming the judgment
of the county court, that 15. 's writ had priority,
for the return, though not true in fact, hound
the late nherill' and 15,, and could not prejudice
the plaintill'. Uuhm^im v. Waihle.U, iM (}. 15. 488.
The plaintill', on the 14tli April, lS(i4, gave
<lefendaiit a li. fa. against (J., >S., ami L., the
(lefeiidaiit then having a writ against (i. ami h.
at the suit of Hingston, and (juu against <r, alone,
at the suit of V. On the I'Oth he received a writ
against L., at the suit of Ilarty. (i., S., and L.
carried on business as (i. it (Jo., each living at a
ditreieiit place, and .S. having authorized L. to
act for her in the partnership by jiower of attor-
ney. The plaintill 's judginunt anil Harty's weru
both for })artnershii) debts. On the .5th Febni-
ury, I8t)4, the tirm made au atisignniunt to K., in
trust, to pay all their orutlitors ucpially. He
S(iM the goods, anil on the 14th April, I8(i4, paid
the proceeds to the (iefendaiit, who gave a re
ceipt for it, "to i)u applied to exucutions in my
hands against Vj. and (!. et al." E. \\ad pre-
viously telegraphed to the plaintitT's attorney
for instructions as to whether he should pay this
iiiouoy to the sliuriff, .and being told to i>ay
him, he did so, and took the recei])t, not being
aware at the time uf any execution but the
plaintiff's. Uu the iiOth April, 18G4, Harty
notilied dcfi'iidant not to pay over the liinnov
the plaintill's iudgment was invidid, .iii'l uu" ti
I'.tth Selitemlier following, the [lUiiititl
meiit and execution, and all prmeiiliiM
lii.l
luent ti
!lp|pearunce, were set aside. The liLiJn
till' again proceeded with the ai'tiuu, iiiul i,', ii,,,
4tli hccember, |.S(i4, jilaced iiiintlier ti. fa i
defendant's '-amis, wliiiii he retiiiiu-ij ik, ,, i'
having paid . '-er the money to llaity l"l.iii tii'.
plaintill' liad recovered judgment. 'I'lit; iiLmit,!]
h.'iving sued deleiidaiit for not li'vyiiii;, iiij.l i„|.
money had and received : Ibid, tliat iif ,i,iil,|
not recover : th.it as to the tirst euiint, tln' i v,.
cutioii defendants had iiolliing in (ji'i'ii,,!,,,,;,
hands during tiie currency of the plaiiititf'M\rit
for if the assigniiieiit to K. was vaiiil, tlnir
estate had vested in him, and if void, tliiv lui.l
through i;. paid over tiic money to iii.|',.|]',|;,|,t
wlio received it as shcrill' for the |iiii|»i«i. i||,.||'
tioiied in his receii>t ; and as to the sei'iiii,||.,,uiit
defendant was entitled to upplv tiiis iuuii,v ;il
specilied in his receipt, uini w.is imt ImiiMil U
wait until an execution lanie to him against all
the members of the linn, i'lurlc v. CurKu •';
Q. 15. Mil.
On the'J.Srd.luly, 1S(!S, M. recovered Jiiilj;iii,iit
against. I. for .*"J,0'J.'5.r)l,and issui'd a li. fa. auaiust
g Is, the uxucution of which was dtlayfiriintj
the end of the following month by ■iii a[iiili,',itir,ii
to aineiid. On the third of Octiplpcr, lSi;i<, .1.
gave plaintill'a chattel mortgage, wliicli wasrt:-
istured the tith < Ictober, pay.-dile ,i ye.ir aftirilati.
.1., with the plaintiir's consent, coMtiiuic' ;h
business, and had sold a large part of tiie cliattils
when the iilaintill' (in .lamiaiy, bSii!!,) caiiiv to
take pos.Hession. Thercuiioii tlic slierilf, wlinvj
previous action under the li. fa., if any. iliil in
appear, but who had no authority fur tkf iklav,
seized and .sold the reniaiiiiiig !,'oii(ls, wlu'ii ]ilaiii-
tiff brought trovei; against him, plaintill', ainMr
fendaiit in the execution, ami .uhitlur wli(ilii4
joined in indemnifying tlu' slierilf, cmitciiiliii^
that the delay in executing the li. f.a. gavo liis
chattel mortg.ige priority. The jury gave a vtr
diet for S|,,">10 against the shcrill, aiiil ill ('.ivuiir j
of all the other defcnd.iiits. This vcnlict luiii,'
inconsistent with any view of the facts, and ix-
f)rbitant in amount, was set asiile; costs to atelt'
the event. Mrdirirn v. Jl'-I'mi.Jdnil d nl.,\') \
C. l'.4()0.
A mortgagee paying oil" a prior execution has j
a lien therefor against siihsci|iieMt exfcnti'iiij.
Tnttt onil Loiin fo. v. Ciiilihn-t, 14Cliy. 410.
A. obtained a juilginent against 15, and regis-
tered the same, and obtained li. fa.s. agaiintj
lands; kept them in force and tiled a liill"ii j
the judgment before the act aliolisliiiigrugistn- J
tion of judgments. C. had ohtaincd judgnwit j
.igainst 15. and registered it, hut 8ulisei|ni'ntlyto j
A. C. tiled his bill to setiisidca iiri(irs.iliMiu4ej
by 15. to U., not making \. a party. AiIiym,
Wiis pronounced in his favour siistainiiigtlii;iaie,|
but giving him a lien on the purolia.se nwiit'y.l
A. ivpplied by petition to be made » [arty amlj
have his priority declared in such suit :— Hil'1,1
that he eouhl not by petition make himsilf »l
party to that suit, and that his remedy, if at all,f
was by bill, (^ua-re, had he any reiueily at JL
City Hank v. McConkeij, .3 L. J. N. S. 125. -t a.v.
Where certain creditors of a deceiised insdlviiitl
sued his executor, recovered jmlgiiieiit, anl s ij
his real estate, and got paid in full ;-HcM, tliiJI
til
I'llt
IKi'i ^ 1461
over the iii.,ii,..y,aj
iiiviiliil, aiiiliiii' til,.
H' iiliiiiititl's ju.W.
lirdCCCllillJ.'* Jill,,,;.
t iifiiili'. Tlu' liUiii.
; iictimi, aucl mi ih,
I iiiiiithiT ti.iii. ia
l'ft\inu-ii 11(1 j;uciil«,
to llaltv l"-'l"ri' tilt
liiclit. Tile lilaiiitill
iMit li'vviiiy, aii.l ti.r
II I'M, tiiatk' ,'.4l
(iiNt IMlllIlt, tin- IXi-
lliiii.L; in ilftViuliiiiU
if till' \ilaiiitill"swnt,
K. was valiil, tlnir
nil if viiiil, tlu'v lia.l
uiiin.'y til ili'frinliiit,
iir tlie iiuriiiim- im-ii-
l.^ tntiiu siH'diiili'iiiiiit,
ajilily tlii" liiuuijy as
ml waM imt Immiil Vi
uv tip liiui against all
Cl,ii-lc\: 0<r'i'",i:
,1, reciivfrcil juilgiiiiiit
I issiii;il all. fa. aijaiurt
iiii'U was ilflavijil uiit:l
until liyaii aiililiiMtwii
of Ui'tiiluT, ISl'i'*, .1.
irti'agi', which wasaj-
.yulilca yai-afterilatc.
j(in><i'iit, ciintimif.'. !ii<
argi^liarti if the chattels
anuary, ISii'.",) ciiiiu- t.i
jHiii tlic shorill', wliiivj
J ti. fa., if any. lUii in
mtlioi'ity f(ir thi; lUay,
iiiiij^ i^mimIs, when I'laiii-
,1 liiin, \ilaintiir, aiiililc-
uia aimlhiT whiili;iil ^
|thi' shcrill', cdutemlini;
ii(^ tin' ti. fa. g'^^v-^ '"*
. 'I'lif jury nave a vtr
|o shcritt, ami ill f.ivi'ur
,ts, 'I'lii'* venliet ln'iii^
w tif the facts, ami ex-
ict aside; cMSta to aUe
MrCinishillil r/ill., I'J
IV :i in-iiir cxeontiiiiiluil
lulpsiM,uclit exeelUlllll^ '
L/,/,,,7, UChy.410.
It against U. and regis!
Itainc.l li. fas. agf H
|.,.„ ami tiled a lull "lit
lactaliulishiugregism-
4,a.l olitaineiljuilgiiwiit]
lit, liutsuhseiiniMitlyt'il
^iusi.loai.n"r«.'»l7W'l«j
i \ aiiarty. Aferrtj
l-ourBustaininijtliesiie,
■ the l>«rchaac mmiey.!
,1,0 nia.leai'arty^'«'fj
- in such suif.-HeU
Ititi.m make hi-?"^'',*!
It his remedy, II at a«,l
1 hu any remedy a ^11.1
|.,fa.leceasedinsolveiiji
L.I j«dg.neut and S||J-
la in full -.-Held, tM
EXECUTION.
11G2
HohiiiHoii ; Fiirrv. Aril< rli/, I f^. 15. IlUT ; Povh i'
V. lloinll, 7 L. J. '-'Oll.-O. C— Mftckuii/iu.
A ti. fii. iHsncd nil u jiiiluiiifiit (111 ii H|iii'iiilly
eiiildrHt'd writ l«'f<iic the rxinratiuu nf ci^ht iliiy>i
fnuii the liLst ilay fur a|i|niiriiiici', is an irri'^n-
larity, iiiiil, if kimwin^ly issued, jiii almse cif the
t.«titor^e''i'<-'"f""''*'""' Irnstces cJi-t;iiii ri;;il luid j liroci'ss of tlu' idiirt. Iljin'hill y. li"i''"Jl[i[ <> "'..
,KTS"nal estate. 'I'lii' real estate wa.s snlijeet to
' ■ 1.I..1. tl.e vendors .iL-reed to iiav: the ,,,,,e„.Uiits, who were 111 ImHiness, knowing
tlint tlie writ had lieeii irre^'iilaily issued, siiid
oil tile day after the issue of exeellti'Ul tllilt tliey
would not mind tht^ issue of the writ if they
Were only alhiwed to keep tliiir store ojieii for
tiie reinainder of tiie week, to w Jiirli the slieHtr
.assented and iiiaile iirr.iiiL'eiiU'iits foisodoiiijj
1 ,• were still hound to iiccimiit, and that the
tPrereditms of tiie insolvent were eiititleil to
1 - the wlielu estate distriliiited liro rata under
•"Ivict e ->•<. /'"'"'' "' Jii'iti.ili Xiiiili Aiinrird
The iilaiiitiir " 'l another bought from the
• „rti,,iL'e,wlii'h the vendors agreed to \>i\y ; tin
'iiureha'ci-'^ I'aid their i.iiri'hase money, hut the
Hidiiis ai'ldied th.' s.iniu to pay other delits of
tlute-tatiiraiid left the mortgage in part unpaid ;
th,. i.laiiititl', having lioiight out Ins e<i-pureha.ser,
i.,la hill against tiie exeeiltors. A <Ieeree hy
was iiiaile gi\iiig the )ilaiiitill' a lien o
tk testator's assets, ordering tlie ileleiidant.s to , n^.i,,^ „„t t„ ,,^ .^ .^..-liwr of the irregui.irity in
inv lieiseliaily wli:it tlie plaintlll" »iiould fail tc
Mli'efriiiii the assets, and direetilig tiie aeeouiits
,iiid eiuiniriL''< "«"■'• i" ■'"' ailmiiiistratioii suit.
Till' eit.ate was iiisiillieieiit to pay all tiie creditors.
Kt'iire tiie iii.akiiig ">f tlii^ decree a creditor ot
tin istite had olitained judgment against the
Hitutors, and the slierill' aei/ed and sold g Is
(litlie testatiir in their hands :—Hehl, tiiat the
iilaiiititl' had im riglit to prevent tiie creditor
Ui receiving the money. J/iiiri/ v. Sl,<irj., IS
liiy. hi.
liuase iif ailelitor dyi'.g loav'iig insullieient
jsxts to pay all his de'its, exccuioii creditors
nhiise writs are in the slieritV'H haiics do not lose
thvir iiiinrity, nor does a creditoi wiio iias a
H. uistratioii in tlu^ liand.s of the »e jiiestrators
ii,c the advantage of it. J/<7/< ;-.i v. Miij, rx, lit
lliv. is:i.
Xli. SKrriX(i .vsiDE Exfx'Utioss.
Tilt court will not set aside an execution upon
jtlit ground that the action was coinmeiiced in
deUaiid the cognovit given iu aasuiupuit. Jiroirii
IV, ir.(/i/n/», Tay. 4!»4.
Tlie court will, after a sale of lands under an
leMitioii, iircveiit an assignment by the shcritt'
jtotht [lurcliaser, where good cause is siiewn for
|r«i]niriiig their
|Jfi//M-, H,
Where in an action against an absconding
IdtlitiT iirocecdin^'s had been carried to judg-
iBtiit and execution against his lands, and lie
Ibi'ViiI to set aside the execution for a variance
Ikweeii it and tiie judgment, and the iilaintilf
\tu alhiWed to luiieud : — Held, tliat he w.as
liiteniards too late to object to irregularities in
larlier iiroeeediiigs iu the cause, as he should
JLvc lirdught tiiem forwaril on his first motion.
k;/ii//v. Liiis.T. T. 5 & G Vict— P. C —
Mh'julay.
The eouit refused a rule to set aside a ti . fa.
ause is.sued hy tiie oHicer at his own house
kiiiw iittice liours. Kulktr el at. v. Fidlir, 10
|lj.B,4:7.
Where a ti. fa. is in itself regular, the court
*ill nut set it aside liecause the sheriti' did not
ike any iiroeeediiigs under it during its cur-
bcy, liut advertised lands after the return day
Utmif. Munimiv. J{n'.'<, 1 P. li, 25.— P. C —
»l)er.
[^.k irregular execution will not be set aside at
e instance of a subseiiueut execution creditor.
fwiii V. Bowu, 5 L. J. 138.— C. L. Chamb.—
interference.
•A Vict.
Jiitnk of U. V. V.
the issue of the exeeillioii. I h.
Qu:ere, can delitois, wiio, being uiiatde to p.ay
tiieir delits in full liifore the issiiit of exei'iition,
called a meeting of tiieir eieditors with a view
to an assignini'iit under the Iiisoheiiey .\et,
w.iive an irregularity in tiie issue of exeeiition,
wliereby one of their ered. tors gains an advantage
over tile general body of ereditor.s. I''ive days
after tiie execution, ami four d.iys after the con-
versation above iiieiiti<ined, the dtbtor.s made
an assignment for tlie general beiielit of eieditors
under tile Insoiveiit .Act : lliid, that the as-
signee in conjunction witii the delitois, were
tlie proper parties to move to set a.side the exe-
cution. III.
Tlie jilaintiir issued a li. fa. lands on tiie Ttil
.Iiiiie, l.Sl!.">, and renewed it from time to time
until 4th .lune, bStlT. I >ii the IKItli Maieli, 18(17,
defendant obtaineil iiis disehiirgi- in insolvency.
I'hiintitl' iiad jiroved his eiaiiii for the fiiii amount
of the judgment in the insolvent Court, and iiad
never attempted to take any proceedings under
the writ, wiiieh lie refiiseil to witlidr.iw, aitiiough
re(|Ueste(l to do so. 'I'iie court set the ti. fa. aside
witii costs. Dirkiiisiia v. Jiiiitin/I, 1!) C 1'. 'JKl.
A iierson having a elaiin .against the owner of
a mill, brought an action against his executors,
and recovered judgment. An execution against
laiiils was sued out and )ilaeed in the iiaiids of
tile siierid', under wiiieii all the lands of tiie tes-
tator, of wiiiciithe mill and mill premises fornieil
a portion, were duly advertised for sale by tiio
sheritr. The testator iiy his will lia<l lievised
his lands to his relations ; tlie mill and liiiii pre-
mises to an infant, on his attaining twenty-one,
ids fatiier during liis miiMrity being entitled
thereto. ]Jy an agreement made by tiie adult
devisees witii a friend of tlie family, it n'as
arranged that this person slnmld attend at tlie
siieritt 'h sale and iiid siieii an amount for the
whole property as would cover the execution
deiit and costs, and that hesliould hold the same
for the several owners. Accordingly, lie attended
at tiie sale and bid the stipulated amount, the
proprietors and their agent also attending tliere,
aiul preventing any competition by openly an-
nouncing the arrangement wliich iiad i>eeu
ni.ide ; and only one bid was made for the pro-
perty, which was duly conveyed by tlic sheriff
to the purchaser, who afterwards conveyed to
the devisees their respective jiortions of tiie es-
tate, upon being paid a proportion.ate sliare of
the amount bid at the s.ale, except tlie mill and
mill premises, which the purcli.oser retained, and
occupied and improved during the minority of
the devisee, who ou his attaining his full age
'i
1^
Ufi.l
KXKcuTroy.
I4r,^
' '
i1i'iii:iiiili'i| ,1 rniivcynni'c, wliirli ili'inaml tlu'imr-
clmscT ri't'lisi'cl til cniiiiily witli, .illi'gini,' tin- |iur-
iliHMi! tlitiiiit' t(i liavt! Ih'i'ii I'lir Ills (iwii ln'iirlit,
wllelrll|iiili tliu ili\ Imoo lilril ;i liill to tiiliipL'l tin:
imriliaMT til cirry mit tlm arniiixfiiiriit. Tlii)
Cdiirt, uiiilcr the I'lrciiiiiHtaiu'i'M, liiOil tln' pliiiii- '
till' ciititli'il til I'i'ilri'Mi tilt' mill |ii'iiiiiscH, ami
that till' arriiti'.'i'iiiciit iimli'i' wliicli tlu' |iuri'liam'
wan iiiiiiU' at »lii rill "h smIi' wan i'a|ialil<' iif liciiig
|iiiiV('il li\- iiai'nl. Mftt'ill V. Mi<llinliiiii, (i Cliy.
\\'liiir a rule for .m'ttiii;,' asiilo a li. fa. a^iiiiiHt
laml.H wa-t ilisfliarp'il at law iiinlcl' a mati'iial
iiri'iir as t" the t'actx : llrlil, no liar tu relief in i
i'i|iiity at tile Miiit nf the ilclitiir's j.'raiitee of tliu
IuuiIh. /'iildiiv. Thf itii'iinn llniih, l.SCIiy. 107.
A jmlu'iiieiit oruilitor hail iKMUt'il at the saiiio
time, aii'l |il:iee(l in the h.inilsuf the sherill', ati.is
li. fas. ;l^.■lills^ u \h ami li. fas. .'iLtainMt lainU.
The sill riir liy ilirertiiiii iif the ereilitor niaile a
Hci/iire iif j^'iMiil.t. The w rits ajiainst j,'iiiiil.i were
afterwar.U ami liefiiri" M.'ile thereiiniler with-
drawn : liiit nil. inwhile the lielitiir hail enriveyeil
luM laml in trust fur ereilitors : lleM, that the
grantee was entitleil in equity tn restrain a salu
iinilcr the li. las. agaiiiHt lands, lli.
XIII. Hr.wiNii (III C'dNTiiiii.r.iNd KxKcfnoN.^.
Tilt) eimrt will mit restridn a iilaintill fnini
K'vyiii:,' the wlmle of his delit on iiiie uf several
defendants. Ziii'U~\. //in,i;ri/(i/., .M. T. 'J Viet.
Kefnsal (by Maeanlny, .1.,) tocnntrdl thojilain-
tillnr his attorney, or the sherilV, hii as to re-
(|uire thi'lil tu lu'oeeed njioii a ti. fa. aj,'ainst th((
goods of sever.d defeiul.-ints in /*«(•(•« .v.m'oi;, tirst
exhausting the ;;oods of one, and then levying
on another, ('niinni rr'ml Ihtiil: v. Viiiikiiii<il(mt
I't It/., I ('. L. Chaiiil.. --'CO.
This oonrt or a judge may at any time inter-
fero, ns exercising the jiowers <if the Court of
Exeliei|Uer, tu restrain undue harshness or haste '
in the e.xeeution of a writ issued for the eiuwn, j
althonyh what is eoni|iIained of may he strictly
authon/eil. Hi'i'iiKi V. ih.-iiiiriliii.i (.'iiiinl Cn.,
2I)(,>. I'.. It;.').
The eiiuit will not stay iimeeediiigson a li. fa.
goods taken nut under . a cognovit, lieeaus" there
has heeii .'i \ irlial arr.ingmeiit when the cognovit
was given that the jilaintill' wmld only resort to
lands. Mrl'lnrmm v. Sulln r/nint, Tiiy. 4'2'2.
Where the ^ilaintifT ulitained judgment ten
years ago, and two or tiiree years afterwards
Hed from the ]iroviiR'e chargiMl with a criinin.al
ofFcnce, and a writ of execution was issued on
the judgment without any Icive of the court,
or notice to the ii;irt>', tlie ciinrt stayid the |)ro-
ceedings. l/nlixnn v. Sliainl, ,S Q. H. 74.
Qiuere, as to the jiower of the court oi' a judge
to delay jilaintill's jirocecdings on an execution,
ill onler to enalile tlefuiidaMt.s to institute an ac-
tion, and to uci|uire a iiositiun in which tluy may
aplily to set oil' the judgment to he recovered
by them against iilaintill's judgment. Semlile,
there is no authority for such a course. Li/iuli
V. iViUvii, U L. J. 242,— C. L. Cliamb.— Dniiier.
AVhere judgment was, oii2Sth Dccemlwr, ISOO,
recovered hy j^ilaintiir against defendant for
£2,486 Hb. Sd. debt, and afterwards defendant
made large jiaymeiits of money ti |il:iimiir „„.,
of which iilaintiir alleged he iiniv,.,! ui,,',,, .
agreement to pay I2.J per cent, iiiti nst f„r
forliearance, which agreenieut di.ti ii.lant a.'i,n,l
and the facts .•idiuittid In twemtlie jiartiiim,,! i
far to iistalilish some sin h agieeim lit or airiu '
nieiit, a summons ohtaiiied hy detVinlant (4^
sought ti. h.ive all interest in ev.-,:.ss nf n |,^^|!
cent, ajijiiii d ill rediietion of thw jud^fiin iit.|,.|V
calling U1.011 pi.iiiitiir, ai ig ,,tii, r tliinj,, (',
show cause why all lUiiceeiliiij^, slmuM imt j,,.
stayed mi a ti. fa. ag'iinst the g |.^ „|- ,i^.,Y|,.
daiit, then in the hands nf the slunti; wa- ,|jj.
charged with en,-,ts. /■'/" Ao.'/ v. /</'.,»',, i| i i
209.-(". L. Chaiiili. \. Wii.ion.
A judgment creilitnr issued at the samc'tiiiU'
and iil.iicd in the liandii of l\n< slurill. .ilini ij'
f;is. against ;;nnds and li. fa.-f. ag.iiii»t iiiii'l.i. Tj,,
,'<lieriir, liy ilirei'tinii nf the creilitnr, .vei/i',1 Jr,,,.",/
and the writs again.st jinods were, IhIhh- «;J,'
withdraw II ; nieanw Idle the dehtnr IimI I'.mvi'Vi.i
his land in trust for creditors. .\u iiijiinrtii.ii
was gr.intcd at the instance nf tile i;faiiti'i tu
restrain a .sale under the writ.s ;ii.',nii]!.t hin.ls
until the heariiii.'. /'a^l« v. 77.. o,.^,,;,. /(„4.
12 ( 'hy. :((•>(;. See, also, .S', ( '. nii tic hi ariii.' ri
Chy. 107.
Where a hill i-i tiled to restrain the suizuro .,:'
the gill Ills nf .\. on an execiitinu ;igriiiist II., ..u
thegriiiind that tlu gn.ids have ,i iieiiiliiu' vaiiit
which d.iniages would not cnniiii'iisati-, tluT"
should In: distinct and iirecise ,dleg:itiiiii.-i nf tin-
necessary facts : and a generid allcgatinii t'l.it
the damage will he irreparahle U imt siillirioit,
on dciniirrcr. llnii-^lmr' v. Tin (!,„■■■ //..h' nJ
Chy. 1>S7.
.\l\'. .Misi ).:i.i.\\-|.;o| s Cvsl-s.
Ill an r.etion ag.iiiist a sherill' for the nvor|.liij|
of money levied under an execiitinii, tiic iil:iiiitilf|
must prove a demand of the iiiniiey l.cf.in' aotiniif
hroiiglit. /i'»;/..//. .1 V. Hiikii; HO. S. •.>7(;,
The court will not order that cxecntinii .sjialll
issue on a judginont for the hi iiolit nf a straiijorl
to the judgment, (liiiiililr v. liii.<.<,ll, ."i U. ,"<. ;i3D, 1
The court refused to grant a iiiaiidainu.'* tiu'nm-l
pel two justices of the jieice to is.-uo I'M't'iitini
mioii ;i ennvictinu uuiler ti Will. I \'. I'. I. -. :',!
for selling liipmrs witlmiit license, tli.'c.i|ivi,ti'ia
having heeii fnunded iipmi the written slat, nu ii|j
of the informer, and the o.'itli nf ntie i.tln-rMit.
ness, there lieing a douht lunlir tlii' stitiUd
whether the in'nriii itinli nuglit lint al.'-ii tn In
oath. /,'.;/;»<( v. .yrc.i.iii'/, (id. .s. (;•.>!).
A sheriir caniint in ;iny iiiaiiiier hirniii.
purchaser of prn[iert\- snld iiinler ;iii lAi'.iiti'a
D(»- d. Thnnnixuu V. .V.'A'. )/.;., M. T. 1 \iit.
Where in an action by an cxeciitriv ai'iii-H
sherill' for money li.id and rcceiviil tn iiir n-
executrix on a writ of li. fa. agaiii.st nii. D.J
which when luoduced recited a recnviry !■'. tlu
plaintitt' executrix against 1>. fnr imt [nit'i'r
certain promises and iindeitaliings iiiiuli' tnti
plaintitl' and for her cnsts, &c., and tliciifl'd
ott'ered tn give in evidciice a set-ell' apiiii'*t til
idaintill' in her nwii right:- Held, tiiat it wi
inadmiasihtc, the plaiiitiU'claiiniii'; in lurivi'rt
aentative char.ictcr, ;dthnii','li the wiit oi ti. fi
wa.s informally worded. Di rlia v. Jniri\
3 Vict
MM
oy tM j.luuiiil, iurt
I'liit. iiitcrfHt fur
it ilitVihlaiit .li'iiii.'i,
L'l'ii tin.' |iaitM»w(iit
;r(riiii nl nr arraiut.
liy 'lifi lnUut (ttli,
, ill lATL'i^H 1. 1' li ^nr
till.' JU'I;,'!!!! Iltitlit,,
11^ cillii r thill;;*, t'l
lill^■. i'lnilllil Imt Iw
till' ■^i"«\^ III' ilftVu.
tllO Jill' litV, Wlliili*.
nil V. /;/'..»■„, II 1.. J.
'ilwMi.
I'll at till- siiiiii' tiiiit,
;' till' »'u-i-itV, aliih li.
(, iiijiiiiist liiiils. Tlw
'rcilitoi', sci^i'il;,'.,iiilj,
lit wi'i'i', Ipi'liia- -alf,
' ilrlitovli;iil I'MiiwyiHl
itiirs. All iniuiii'tinn
ll.'C lit till' UIMIltl'l t'l
i writ'* ;ii;niii»t l;\iiiU
V. 77..- n„i„rl. IU..k.
('. nil till' liiuriii'.'. IS
ristmiii tin' si'iziirooi
■ciitii'ii .'i,L;;unHt IV, i.n
li:ivc ,1 ^H'culiar v.ikie
idt t',(illllll-'ll«ltr. tlliT.'
ciso iilli!;;i'.tioiH nl tli';
;i'iu'riil !illi!x;itiMU t':,it j
r;llil<' i:< Mi't .-llllirii.llt,
V. Th, twr- ISM; n I
isr.ins Casks.
licritV for tlio nvori'lin 1
lexri'iltiiili, tlie lliilililf j
u) iiiiiiifV l.i'l"iv acti'illf
fir, ;H>.'S. 'JTt!.
■r tliiit cvei'iitinii shall!
|u- 1" iiolit 111 astwiivrj
V. /;/(..•..•.'/,.■)( I. S. m [
liit :iiii:iiiil:ilii"«t"''";"-|
lici' Id iscUO CXCCUti'illj
(I Will. IV. >■.•(. n;2, I
lii'iiisc, tlii-'i'"nvii'ti"aj
I till' written stiitiiiiHit
1,.,'ltll 'if nlU'l'tllH-Wlt-l
it miilri- the stiti;t.,'j|
l.ll^ht lint .il.-^ii tn 1h
■v nKiMiicr lii'ii'iii'' 'in|
1,1 iiinlrr nil fv;i'i'iiti"n^
lir.i., M. T. •■J^'i''l-
Lii i!Xcoiitrix atMiurtl
I'ft'oivi'il tnlllTIb" 1
L. fa. ajjainst mu' l*J
litfila rociivin I'.vth
1). fni- lint liirf'Timll
I'l-taliiMu's iiiaile t" '•'
l.\;L'.,aiiiltliiMli'tViHlAtt
.,' a sit-nlV;i-:iiii^"l>
If.- II. 'Ill, tliat it«j
.'iaiming in li'i; '''.l'
l,...li tlui wiit "t h.
Xfhct'ui V. Jfiri'i'i f"
uw
K.XKcrTOKS AND ADMINISTIi.K'H »I!M.
1 ir,r,
A (lieriir f't-'izfl K<"»1'« iimli'i' iiii I'Xi'Liitiini, Imt
1 ft tlllll' ill till' llllHSl'Hsinll ,,f tlu' <'XlM,'lltillIl
[litomi"'" ''''^''''^'''iS' " ff'-'ipt for tlu' HiiiiK',
Kitli .111 iin'l'''t'''*'"K *" 'li'livtr tlniii to tliu
I riir wliiii rii|iiisti'il til ill 1 nil. Till' laiiilliil'il (if
I .j.,.iitiiiii ili'liti'l' lia\ iii^' Hfi/i'il aii'l milil the
hk1» fi'i' '■' "' '''"' *" '''"' ''-^ ^'""' ''''''*'"' • " Hi:lil,
nun :wti"l' "' t'""^'*''" ''.V *'"' nlu'Hir agaili.st the
1 ii'lliinl that till' Hlii'iilV hail imt at tlin tiiiu' nf
ih'ilistri'ss siu li a |iiiNscM.siiiii nl the ^jnniLs uh jh'l'-
1 iiltiii' laii'llni'il fiDiii ilistraiiiiii^' fur runt.
\i"liii'ir' V. >■'"'". ^ ' '• I'- -*•'*' •'^^•^' /•'"'" '■'■"'"
\.J\,:-lm, !l *.'. I'' •*-"•
Cuurtu iif iijiiity canimt, any inure than I'lHirtM
. Im- nil till' fiiiitiii;,' nf want nf imticu of
yi^, ,',litv, givi' ttVii't to lll•lll•l■l•.Iill^'s whiih, on
iiriniil'l''^ •'• ""' '■"""""" l''^^' •'""' >i"'hr acts of
Lli iiiKiit arc utt.rly v.iil. (luriliiii r v. Jii.tmi,
;K.'4A. ISS.
IVr NK'I-'""' •'•' l''"'"'^''* wtinling writs to the
slitntl' I'V I'l'i'' whii'h rt'iiiiiri' iiiinii.liatc atton-
ti„i;, uiiist nm tlu' risk of his iklay in s.inliiiK to
tin pit "llicf. ItuhU.^uii V. (liniKji, 1S<,». 1(. •.'(50.
It is not NcC'""'"'.'/ that ft writ of ti. fa., which
ha.'iiiitlit'tii rcturiu'il, shoiilil lie I'limlkil liuforu
j. ,.,ii 1^, jrivLii ill c'vidfnct' ; Init thu writ itself
U1.1V, ii iiii"lii''''''i '"^' J~'i\''ii ill nviilonce, ami if
liijt'iii'liiiii'"'""'-''' I'ViiliMi'n may he given of it.
i^„l..t\.J)i>i")r.iii, l.') C. 1*. 121.
Hill, that till' issuing of the writ of execution
iiuv In' iiit.rcil nil till' roll at any time, though
B.rctiiiii may tlitii have lieeii maile to it. ///.
ouiR', wht'tlier till' iiroiluctiou of a writ of
tXaUtiiiliatzainst the L^nmlsof (lefellil.'int i.s 8lllli-
titiitliii'iiU iiui'|Mises tnslRW'tiu- iilaiiitill in Miich
writ til he Ilia cieilitnr. A'(>< /'/■ v. Jitrri.-<, ti
C. !'. ;)!W.
T.M.htaiu ail niiler for exeiutinii iiiuKr ( '. S.
U, I.e. -4,8. 1!'. the Nervice nf the siiminniis
liii:-t In- lit'i-snlial, or have must lie nhtaineil to
uakv it ill siiiiic other iiianiiei'. C/i/lon v.
|il)iiv,»/, ;U'. H. (10.— (-'. Iv. Chamli.— Hums.
.\\irit 111 assi;,'iiiiieiit nf (lower is a writ of
einiltiiili witllill the iM'.tth sec. of tlieC. L p.
Aot, :iii'l may tlii'iefnre lie testuil on tlu ilay on
fiii^hit is issiieil. Fisln r v. h'riif,, -^S (^>. li. :iV>.
Tii.ivwi-ru three exeeiitiiiiiM in the sheritl's
ki.l> .igaiiist niie W., ill two of which the [ilain
tills mri' attiiiiieys for tlie execution creilitorH,
U'i tln' lUlciiilant was attorney for mie 11., who
bltiii' iitlur execution. A sali' hail lieen ail-
vtri;M.il liir tile "Jritii .laniiary, aiul on that day
tiinlililulaiit signcil an instriinient uiuler seal,
u i"llinv8 ;— " 1 agree with (J. \V. & {'. (the
pkmtil^,) til pay ntl" the I'rincipal, interest, ami
I mk, with slicrill's fees, in siiit.s (naming the
I tV'isiiits ill ttliich \ilaintill's were atturneys), in
iflibiiltratiiiii nf their agreeing to iii)st|)iino the
»lc lulvuitiseil nf ilefc'idaiit s goods for one
tttii." C. ami the defendant then went to the
ilitriir's iilliou, and instructed the iiersoii in
cliirgi' to iiiibtiiniiu the sale, and the hailill' left
lith iltfiiulaiit to go niit to the jilace and po.st-
pnt it, I'lir which the defendant was to pay the
Miwisi'. When the hailill' got there, the sale
y Wen going mi an hour, Imt it waa sLniiiiotl,
I Mill till' gihiils Mdlil were grtt hack excejit to the
ifflount of 54.")) which Wiw paid to defendant.
TlitplaiutiU's thereuiion sued the dofendant on
1 lia guarantee :— ileld, that they were entitled to
recover the amnimt iiii|>aiil in their two -.nits ;
for they had iierfniiiied their agreeiiiiiit, and
defeiiilaiit had gilt wli.it he had liar^'iiiied for;
and the iilaintill's nmic the |irii|ier |iai'tii's tn suu,
l/iillirii' tl III. V. <)'<'i>iiiii,i; \\\\ (,». II. ;t7'J.
K.XKCUTOKS .\NI> AltMlNlsTi; Al'OIsm.
I. I'lioiiATi; AM) l.,Kri'i:iis of .ViiMiM>rK.v-
Tlo.N.
1. Uem'mUji, l-lCiT.
ii. Ill 11)1111 iiiHiiii, 1 170.
'.i, Fvi'l'liJII .{llill'lllitl liltni:<, 1171.
II. AliMINISTltAIOUIIK AliMINIsTIIArnI!, 1 I7-.
III. Iliiiirrs, .■Viiiiiiiii I V, AMI hiTv.
1. Ill iiniiii riiliiin.
(a) Si rr'iri ■< /t'linlirnl, 147-.
(1)) Kr/ii iiiUliiff mill Aili-iinnn, 1473.
(c) CW'* ill AdinUuHli'iilinii Sii'iIh — See
AlJ.MIM.sTUATIoN Sl'IT.
2. .iWo hihiAilir ill, III 1,11 til,- Tiitiiiui;
1177.
3. /ii I'l'llfihi/ ini'l III ,ili:hiif /ill EsOUc,
147S.
4. Mituii'fiiiij Hull Ksfiili, 147!'.
5. Ollnr Co ■<,■.■<, USD.
(J. Itiijlit III l'"lii III Mnrhjiiijci — Sci .Mmcr-
(iAilK.
7. I)i<iliiiij irilli mill /'iiii'liii.<!iiii I'rniii I/k'
Kililli —SiV 'I'lll'STS AXI> TufSTKKH.
8. An Triitliin — Si^e Tuf.srs and Tki-.s-
TKKS.
IV. l.iAiiii rnivs.
1. I'lrsmiiil Li,t'i'i,'ifi/.
(a) Fur Ai-lM i,/i.irl, iif/ivr, 1482.
(1)) Ollnr Cii.ti.i, USJ.
2. Distrihiifiiiii nf Asii'i.-i, I4S.'».
3. Ihrnslm-il, 1 |,S(!.
4. /'"/■ /"'' '■'•■•''. 14S7.
n. Fur Cusis, I4S".I.
G. Other Cuiin, 141)0.
7. I'lirtii-^ III liilli "/• Xllll'.^ -.SV( Hll.l.s OK
KxcM.v.Mii; AMI I'liiiMis.sonv NorE.s.
8. [ji-ijacien — .SVc Li:iiA(V.
V. PAuriK.s TO Sirr.s.
1. Fiin-clu.^iiri' — Sic MoltiifAiiF:.
2. liill.^ iif Sali'—See Mouthauk.
;i. Otih r Slliln—Si')- Pt.EAlilSd IN KlJl'ITY
VI. AcrKJN.S AN!> .St'ITS IIV.
1. Pliailiiuj, 1491.
2. Ollnr C(tKi:i, I4<.tl.
H. Fur rV' mill Omipa'.iijn — Sic U.sii .VXD
OL'fi'i'.vnos.
VII. At'TIOSH AND I'KOl'EEDINliS AnAIN.ST.
1. Pkailiiiij, 14!)2.
2. ()thi:r L'a«i'.i, 141)4.
VIII. Evidence ix Acri(jN.s and Sirrs nv and
AllAIX.ST.
I;
IMAGE EVALUATION
TEST TARGET (MT-3)
1.0
I.I
m m
2.5
IIM 111112,2
lltt
14
12.0
1.8
1-25 1.4
1.6
< 6" —
►
Photographic
Sciences
Corporation
23 WEST MAIN STREET
WEBSTER, N.Y. 14S80
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UG)
EXECUTOPuS AND ADMINISTRATORS.
\m
IX.
X.
XI.
XII.
XIIT.
XIV.
XV.
XVI.
XVII.
XVIIT.
XIX,
1. /'/•(/()/■ ((/' 111 jtrc. -tint at'wc Charuckr,
14!)S."
2. (ilhcr Ciixi:-<, 1409.
Actions on Admini.stration Bonds.
1. Asuhiiiiinnl (if Biiiiil, 1500.
2. Uiiil,i-r;,ia<o. III. r. S, 1500.
.'1. Ciii/i r Siirroi/iifi- i'oiirt.s Art, C. S. U.
C. c. J II, 1501.
Laniis as Assets in the Hanps of Ex-
ECl'TOUS OK Al).MINIsrUAToHS, 1,")02.
EXECTTol! HE Sox Tol'.T, 1505.
^IisfEi.t.ANEors Casks, 150G.
Adm.nis'i-uaiion SriTs— 5(ti A7>M]Nrs-
IliAI'ION SL'IT.
AiiMiNtsTKATiox AD LiTEM — See Admin-
ISTliATrOX SCIT.
nr.KKUENCK TO AnllITIfATION 1!Y — Sw
AliUITKATIOX AND AWAUD.
C'redttok's Suit — .SVc Creditok's Suit.
DisTiur.UTiNct INSTATE — See Distkibu-
TKiN op Estate.
Ari'OINT.MKNT OP Pf.DSONAI, TtEl'RKSRN-
TVTIVr. .SVc ruACTICK IN Kl^UITV.
. Srr.i'iAi. Po\\i:i!s under Wills — .SVc
Wills.
1. Probate and Letters oe Administration.
1. (liiirrtilhi.
Leave to siK! on a liond given to the lieutcn-
ant-gr)vei'n(iurfoi'tlietinie being, ;i.s judge of tlie
Court of Troliate, should be ajuilied for to that
court, not to the Court of (i>ueen'.s Bench. //;
n Sli'jiiKiii, 5 O. S. 71.
Action on a, note made by defendant, payable to
B.,and endorsed by B.'sadniinistrator to plaintift':
— Held, no ground for inipeaehing the endorse-
ment of the administrator, that the debtor at
the time of the intestate's death resided out of
the jurisdiction of the Surrogate Court by which
the letters of atluiinistratioii had been granted.
Wriijlit V. Mfniiiii, t! (). S. 41)3.
Where to an action on a note brought by an
Cxecut(U', the defendant pleaded that at the time
of tlie testator '.« death tlie defendant resided in
the London district, and that therefore the let-
ters testamentary granted by the Surrogate Court
of the Home <listriet were void, and the iilaintiff
demurred, the court gave judgment against the
demurrer. Kliuj v. C/nrh, H. T. 2 Viet.
Probate of a vnll granted by the Court of
Canterbury, gives no title to an executor to sue
for a cause of action accruing in this country,
the testator having died liere. He must pro-
duce letters test.inientary from the proper au-
thority in this province. While v. Hunter, 1
Q. B. 452.
A will devising lands in U))por Canada havhig
been made in Lower Canada, where testatrix
lived, and being iluly proved and enrolled among
the rec(n'dsof the Courtof King's Bench there, and
copies thereof directed to be made and given to
the parties legally entitled thereto : — Held, that
an ofHee copy of such will, <luly certified, &c.,
was etiuivaleut to letters probate in Upper Can-
ada, and could be registered as smOi. /'.r/,,'
V. liiiijhuiliiu, 4 C. P. 125.
Tlie law (if England as to grantiii-' iir,,l,;,t.. ,,.•
administration, is tlie law to be aihiiiuistiivil !,v
our I'robate and Surrogate CdMrts, WIkiv ".
party domiciled in New Wn-k died sinlilcnlv ii,
itinere in the cdUiity of Wcntwurth, in this iim-
viiico, having trilling personal ctlects i,f less v;iiue
than i'5 :— Held, that the Surrog;itc ('onit fif
Wentworth had jurisdiction to gniiit aduiin-
istration of his etlects. Such ;iihnii]istr;itiun
should be granted only to an inh'iljjtaiit ..f this
lirovince. (/riiii/ v. Tin (irmi H', .</,,-« l;,t'i!,riui
Co., 7 C. P. 438 ; atHrined i.n appe;il, 5 !,. ,1. -Mi
The h^gislature has iiitendi'd that niily th,,^.
causes in which disputed (|Ucstioiisiif Ia»'.ir f.u.t
arise should be removcil to tlie ('iiiirt (if Clwii-
eery, and not contenticms as to whuiii aihninis-
tration should be granted. In n llichriil, :, [
J. 25().— Chy.
Tlie 30th section of tlie Surrngato Aet]iiMvi.Ii'3
for an appointment of an a(hiiiiiistratiir iii^mltiito
lite when the cause is reserved liy the jiiil"u im
argument in term. fli.
Certain goods of testator were Ii-ft in tlio
liouse, where the [ilaiutill', his il;\iiL;liti-v. and lid'
motlier continued to live and use tliciii furaliiut
a year, until the mother died, wlicii (li^'fcinl.iiit,
who had been living elsewin re, t(ini< ]i(issi.-^^i"ii
of the house with these things and ivlusoil tn i
deliver them U]) to tlie plaiiitilt' as tlie iiintlier'j j
executrix': — Held, that tiio phiiiitilV hail imsui'li j
possession of these goods, eitlier in liur own
right or tlirougli her ninthor, as to enalile Lcr to j
treat defendant as a wi-ongihn r : that as Ikt |
niiither's executrix she had no title; and that j
slie therefore eouhl not recover fur tlicni. .1/'.'- ]
Cntri/v. MeCnin/, 22 (,>. B. 520.
Testator by his will, after devising a fanii U
defendant, liis son, in fee, iliivetcd tliat liesliduM j
support liis mother, "and that slu' shall liiivo j
one horse, and my cutter, buggy, and liariuss, tn j
be kept on the place," iS:e., "and tlic Imusu ainl
one acre of ground with tlie orchard all ni'indj
tlie house her lifetime :" — Held, tliat slio t'lnkj
the goods mentioned absolutely, not for life!
only. //(.
An American probate of the \\ill of tlii' tost.i-
tor may be received as corroborative evidona-ufl
the representative character of ti;o exocutur. j
Sloan etui. V. Wladen, 15 C. P. 31!».
The title of an administrator rtdates hack toj
the death of the intestate, so as In eiialik' liimj
to replevy goods taken before the grant uf ailmiii-i
istration. Deitl v. Poltir, 2() ii. B. 578.
Held, that the grant of letters of adniiiiistra-l
tion had relation liack to the death of iutes';atc', sol
as to enable tlie .administratrix i ; ' '""in aonif
tract made by her before such grant, fiirtlHs.>
of the goodwill of intestate's hnsinoss asasuN
geon and jihysician. Cliri.ifii- v. Cltid; '2i i,'- "••]
21 ; affirming Chrittie v. Clark, Ki C. P. 541.
What fees may be cliarged on grant of lettorsj
of -ulmiiiistration by the registrar ami siin"Lat»
judge, under C. S. U. C. e. Ki, and tlict;intlJ
See In re Dallas and the LVi/i^lrar «J th .V-'H
ijate Court for the County ofPirlh, i'.) Q- B. 4y-|
Wlierc a probate is used as evidence uiultr OJ
S. U. C. 0. Hi, it is evidence of the testator^
ur,s
(I as suoli. P'll'iJ'i
graiitin" prnliatc or
1 lie iiilimiustfri'il liy
J (.'<iurtfi. WliiiT ;i
irk ilii-'d siiililviily in
iitunrtli, ill tiiis [ii'ii-
;il ftVcctHiii k'ss value
Sui'i'fiL;!itc (^'otirt iif
idU t(i j,'r;mt ailinin-
SiiL'h luhiuiiistnitiiin
an iuli!»liit:uit "t this
,;itt ll'(.-'<i'H i;ili'int,j
,ii:ipi.ciil, r)L.J.'210.
Ilull'll tll.'lt liuly tllnSC
Ufstiiiiisdf hwvKV to
J tlio Court (if ('li:m-
as to wliniii lulinini*-
In n />''(•(•!'•;//(, 'i L
■iurro^'atp Aot yii'civiilcjs
(liiiiiiistnitdi' v»'l'-i't''
ivved liy tiio jii'lgf i"r
ator were left in tlio
', luH (liiuglitcv. mill luT
unci use tlieiu fiiraliiut
ilieil, wlieu ilefeiulaiit,
iwUero, tiKik inissfssi^u
tliiivLjs ami refuso'l to
laiiitilf :iH tlie iiintlior'i 1
he pliiiiitilVlKv4n.is!K'li ,
(Is, eitUef in her nwn
;her, as tn eniihle ber to
•niul' iliier ; that a^* Iwr
hail nil title : ami that
recover for tliein. -l/'> |
B. TiiO.
fter .levisiu- a farm to I
airecteathathesli^.uU
nil that she shall have
lUg^y. and hanivssto
"'■^and the house anil
the orehar.l all rnnii'l
-diehl, that she M'lkj
isnlutely, not fnr I't*! I
l„f the will of the testA-
l,rroborativeevi.lelia-"tl
laeter of the exeeutnr.f
V, ('. r. 310.
listrator relates liavk to
lite, so as toeiiahlch;.m
Tf„re the uraut of aau.iii-
,•, -21) Q. y>- '''TS-
i,f letters of admiui^tra.
■the death of iutes^^it,',*
Tratnxi ; "ooii ao.n-
I Hiieh !.'nuit, tor til
late's business asasM'
Vv-z-z-, iiu'. r. ^W'
rgedongrautofle.tcrj
, feuistrar and siiri"-'>t^
!- c U;, aiidthetantrj
La as evidence uiuhrjj
Idcuec of the testator!
14G9
EXECUTORS AND ADMINISTRATORS.
1170
D(i >■!.•< i/ III. V. Van-
death as well as of the will.
yuniiitii, 30 Q. 1!. -137.
Where a I'iH ^^''^s ''1*^'^ ^'Y devisees against the
execntiirs, alleging the inaliility of the executors
til atttnil to the trust of the will on account of
Uily intin"'ti*-'s. ami I'l'aying for tlie apiioint-
miut'of a trustee or trustees iu their stead, the
cdiirt ilii'iiiissed the liill with costs, on the gronnil
that the jurisdietion to inteii'ere in such a ease
w'longs to the rrohato and Surrogate Courts.
(■mi'jdv. U'nrij, •_' (-'liy. 3 10.
Whire the validity of u will relating to both
rtihmil iiersonal estate was in dis|)Ute. the [lerso-
ujljiriiiiurty being worth at least f'J.OOO, and it
wasswiiru and not denied that tlie iiuestinns to be
iktiniiiiicd were of sueii iiniiortance that they
ci'iililhe more etfeetually tried and disjuised of
in this eiiurt than in the Surrogate Court, tlie
Mirtiirilced the removal of the matter into this
jijart. Ri- Ei-ch:<, 1 Chy. C'hanib. 37G. — Mowat.
An txecutor, without pro\-ing the will, has
[..wtrtiido almost all acts inciileiit to his olliee.
/;..'.iVo/i V. Ciyi//ie, 14 Chy. ."itil. See /Iri/ct' v.
ftflfdf, 12 C. i*. 409.
A will was prejiared and sent to the testator,
1 was suhsei|Uently seen — signed by the testa
tw. in
tw. in the hands of his wife — by the father of
tkc iwiiliiary legatee and devisee, who read over
tie will, aiid iniiiieiliately on liis return home
mailo a i*neil jotting of the names of the exe-
cntiii's, ;vs well as of the several beijuests other
tlian the jirovisiou for the wife ; and live days
ktiire his death the testator tnhl him that his
Killwas still in existence, and that lie had given
ittiiaiiersmi, whom he refused to name, for the
li!ir]iiise of having a eo<licil jirepared ; and a
S(i..iuiliiiemiiraiiduiii was made by liim from the
worJs of the testator, of what he said the will
contained, which agreed substantially with the
fct mtmorajidum. After the death of the tes-
Utiir, 111- trace o( the will could be discovered.
Alill having been liled for the purpose of estab-
lishing the will, the court made a decree for the
parimse, and directing proliate thereof to be
irantcil to the executors named therein. Hitvu-ij
llin>h,H; 13(_'liy. 'IVJ.
A hi'., hujieaching a will of which pndiate had
l«n granted to the plaintitf liy the Surrogate
Cnurt, stated that after the probate had been
mnteil the plaintill' had discovered a suhse-
HMt will if the testator, and that this subse-
liOtiitwill was the deceased's last will. 'I'he
wills ilisjiiia-il (if both real and personal estate :
-Hdil, that whether the will had lieen ]iroved
III oimmmi furiii or in solenui form, this court
W jiirisilietiiin to try its validity, /'(.■rrin v.
f'rriii, I!) Chy. 259.
Tht title of an executor being derived from
tke will and not from the probate, the court re-
fwd to restrain execution against the lands of
« ilcceasi'd debtor on a judgment recovered
iMiist the executor before iirobate. .Stumpy.
''""H 15 Chy. 30.
JVhere no letters of administration had been
01"^" out, and a lei'atee was entitled to a
*tp- small sum, an order was made for payment
woftheanionnt to the solicitors of the legatee
TOIi'iut letters of administration, he undertak-
'?? to apply it as intended. 7.'o.s^ v. llvs.<, 4 Chy.
Cliamh.'>;,_Tayior, i^,/c)Tt'.
Tlie Surrogate Courts here can grant limited
administrations, as the i'robateCourt in I'ln^laml
can. /ii rr 'r/mr/n', 1") Chy. 7(>. See ('iiiimii v.
CUirk.<iiii, 3 ( 'hy. Chamb. 3flS. — Taylor, H./irn.
Where a ] ersoii, resident in a foreign country,
dies piissessed of mortgages on land situate iu
the iiriivince, the Surrogate Cmirt of the county
where the land lies may grant administration
where the Surrogate Court of no other county
has jurisdiction. //( /••■ T/i'ir/n, 1.") Chy. 7<!.
] L. .appointed M. and K. executors and trustees
of his will for the management of his pruperty
therebj- beipieathed, (which was jiersnnalty) and
the payiiK'Ut of the legacies ; and he afterwards
added and signed a nieninrandum as follows :
"if anything should happen to the trustees, I
appoint li. to be one of the trustees." M. [iroved
the will ; after his death K. renounced : — Held,
that M.'s executor did not represmt the testator
\t, ; and that II. was entitled to probate. //' n'.
\De Lunmili, 19 Chy. U'.l.
Where a bill is tiled against the estate of an
intestate, alleging that letters of administration
have been granted to the defendant of the estate
of the deceased, sueh allegation is suliiciently
established by shewing, at the hearing of the
' ease, that the defendant has olitaiiied letters of
administrati(ui ; although the grant thereof may
have been made subseipiently to the tiling of the
bill and the putting in of the answer, and al-
though defendant has taken the olijection by
way of defence iu answer. Tin Kiliiilmr'jli Life
Aii-'furmicit Cuiiiimh!/ v. Alliii, 19 Cliy. .")93.
An administration order applied for against a
person named iu the will as executor, but who
had not taken out letters of iirobate, was refused.
Oiifnim v. U'l/rUiiiii; (! I'. ][. 1,")0. -Chy. C'hanib.
— Holmested, Jlij'i m .
2. l{i-viinr'iiil\nii.
A release by an executor who is also a trustee
does not amount to areliinjuislunent of the trust,
— eontirniing Doe. il. 15oyer et al. r. Clans, .'{ ( ».
S. 146. Doe d. Berriuiji-r v. Ill<n,lt, (i ( ». S. 23.
Under 21 Henry VITI. e. 4, (uie or more of
several executors has power to convey when the
others decline to act. J^vi d. KU'i^ v. Mrd'i/I, S
Q. B. 224.
A written renunciation, tlmugh not sealed,
made before the surrogate, and ]iroduc(,'il fi'dui
his olliee, is sutKcient to entitle the remaining
executors to act under 21 Henry N'ill. e. 4. Hi.
Under C. S. U. C. e. 1(1, s. !, the renuneiatiou
of pndiate by one of two or more executors is
[leremptory, and cannot be lecalled on the death
of the acting executor or executors. Allin v.
Pnvki;. 17 C. r. 10.-).
^\ here an executor, who has reuoiineed pio-
bate of the will, is made defendant to a suit, the
bill will be dismissed, as against him, with costs.
SliHKim V. Sl'uisoii, 2 Chy. 50S.
Where executors named in a will renounce
probate, what acts or dealings will, notwith-
standing, render them liable as having asMinied
the duty of executors, considered. I'miiiiitti) v.
Mitchill, \'^ Chy. GGo.
Three persons were named as executinvs. Tliey
declined to prove the will, and renounced pro-
I!
1471
EXECUTORS AND ADMINISTRATORS,
Url
Liitf, 'mt exiirusseil tlicir willingness to assist
tliu fiiiuily with tlitir advicu, and accordingly
assistcil in jiruparing a list of debts due by tlie
estate, and of the assets and value there(jf. On
being .si)oken to by acreditor, one of tlieni stated
that tlley had been named as executors, assured
the creditor that lie was all right, and that there
was eiiougji to jiay the debts ; another of them
subse(iuently wrote to the widow stating that
he and the nther parties named "were in I'ort
Hope yesterilay, and after legal advice fin the
subject, have relini|nislied all further action on
the will :" — Jletd. that these facts did not shew
such an acting with the estate as would render the
parties lialde as executors, in opposition to their
renunciation. Jh.
Held, that where a po^^ er of sale was given to
exeeutiirs '/iki executois, and not by name, they
could not, after they had once renounced, execute
such po«t.r. Trite !•■■' v. UitMin, 20 Chj'. 106.
See /// ,;: /> Lurundr, 10 Chy. 119, p. 1470.
3. Fui'ihja Ailiiiui'iMraturfi.
^Vhere a note was made by defendant, a resi-
dent of Upper t'anada, payable to 1'., who died
in the state of >«'eu' N'orU, having the note then
in his possession there : — Jlcld, that his adminis-
trators appointed in tliat state might en(hirse the
note :-o as to enable the endorsee to sue upon it
in this eonr.trv, M'ithout their having adminis-
tered here. //-';•'/ v. PhIuki; 20 Q. B. 20S.
Declaration on a promissory note made by
defendant, pay;dile to I*, or order, on demand,
averring the death of P., and that J. P. and C
P. were duly appointed his administrators, and
duly cndcirsed to the plaintiLl' : that when the
note was made, and from thence to his death,
P. resided in the state of Mew York : that the
plaintitl'at the time of the endorsement to him,
and ir.ini thence hitherto, lived there also ; and
that at the death of said 1'. the note was in the
said state. Plea, that the note was made at
Kingston, in the united e(junties of F. L. k A., in
Upper Canada : that defendant at the death of
said 1'., and licfore and at the time of the making
of said note had, and still has, his domicile there :
that said note at the death of said 1'. was bona
notabilia in said united counties : that said ap-
pointment of J. P. and ('. P. as administrators
was made only by a tribunal of said state, and
that they were never appointed by the proper
authority in Upper ( 'anaila : — Held, on denuirrer,
tliat tile iilea shewed no defence, lb.
Powers and obligations of foreign administra-
tors dialing in < 'anada with foreign assets, and
settling claims (if Canadian creditors, considered.
Grant v. M<:Jh.nald, 8 Chy. 468.
Injunction awarded at suit of the heir to re-
strain execution against the lands of a deceased
person in the hands of his administrator, the
defendant having administered to the estate in
England only, and there being at the time no
Canadian administrator. ///.
A foreign administrator cannot eflfectually re-
lease a mortgage on land in this province. In re
T/ivrjic, 15 Chy. 76.
See Jesmq) v. Siiiqmin tt ah, 14 Q. B. 213, p.
loOS.
11. Aii.MiNisrnvToK ov Aomims
An ailministrator of
rK.VTiiK.
an adimuistriitnxciimiot
1 represent the intestate, but an ailiuiiiistratur,!.
j bonis noil must be a|ipointeil tu the i.iT'iiiii'l '.."^
j tate ; and a .sale by the slurill'of laua.s hd,,,',, j^,'^
I to the intestate under a ti. fa. isniicd ,,ii a uu\j
nient against such adininistratur, is mi!-,. ' *'"
I IwjalU ,t id. V. 7.'.;,/, 1.5 C. I'. 4!)0. * ■
111. Itlt.llTS, AUTlliiluiV, aMp Ihtv,
1. '^eiiiiiiiir'iiii.iii,
(a) Serviri's l!(ii,l, /•, ,/,
Where an administrator, wlio ha,l „oti.-,l
agent for the intestate during liis life-tiiiic Jiiil*
with the assent of the .leCL-asud, iis,,! ,„',,„^^.',
belonging to him, without any atteiiiiit at r,,'.)'
ccalment as to his so using thciii, tliu L..ur
refused to take the account against the ;iiliiiii'i,!!
trator with rests. The muster having all..iu'i i
the estate of the administrator a cdiiiimssi.ii, „.■
live perc.'iit. on moneys passing thrmigh hisJuiuU
in his life-time, the court refused ou iiiipult)
disturb such allowance. Mrl., iiimii v H,mu-'l
DChy. 178. ■ '
Where the agent, alter the decease ui tin I
principal, intestate, had procured letters .. I ad-
ministration to his estate, and sulise.iUeiitlv tliel
person who became possessed of the assets as the I
personal representative of the adiiiiuistrator re-
fused to account, and a bill was tiled tu ininroel
it,^ the court, under the ciri'uinst.iiices, ihrtel
being no evi(lence of any improper ilealiiii; withj
the estate eitlier by the adnhnistrater ni'tli'ise;
representing him, allowed the defeii.'.aiits aeim-|
mission of live per cent, on all innneys leivivi'.!!
and paid over or properly expeiideii liy tlnm-f
selves or their testator, and two auil a halt |iir|
cent, on all moneys received by him or them, liutl
not yet paid over; but refused the costs .il tiiel
suit. IS. ". //). 27!).
This ceiiu-t will not refer it to tlie sm-iM,Mt6|
judge to settle the compensation to he al!iiHVil,|
but ^^•ill tinally dispose of the rights nf all tlisf
parties. Ih.
The rate of compen.-ation to exeeiitdrsditrusJ
tees should depend upon the amount \K\iin\i
through their hands, ;uid tiie time and Ial'"i^
spent by them. In this c.-isc, a cominissinii of li;-!!
per cent, on all moneys received and exiieinlei
by them, and half tliat ainoimt mi the mmirtl
received but not expended, having been ailnH^
an appeal from the master's repdrt, mi tin
ground of excess, was allowed. Thunqisuh vj
FnciiMH, 1") Chy. ,%4.
Where the executors carried on testator's had
nes3 for some years tluougli an agent, mie m1 til
executors visiting the place occasionally tusiipeij
vise the business generally ;— llehl, tint a ;
mission on the mone\s received fmni this smin
was not a proper mode of coiiipeiisatinj; the ix(j
cutors, but that they were eiititleil tu I'e' 0"l
pensated therefor ; and tlnit nut illiberally. /I
The rule laid down in the last case lollinvcj
and executors held entitled to eiiinin'iiNitioj
under the Surrogate Act, 22 ^'iet. c. !W, fuisa
vices performed before the pa.ssiiig of the Afl
McMillan v. McMillan, 21 Cliy. IWX
In no case will an executor be catitleil to allo^
ance for services performed by ^ji agent,
.Vl'MtNISil'.vrHl;,
Imini.stratrix cMiiiit
■Ml uiliuiuistiMliir lie
i\ tu tlic ni-i,'iiial ij.
ill' (if l:uiil,sl».lMiiyuj
l;i. isnUcil (111 ev juilg-
sti'iUuf, is migiit'irv.
1'. 490.
nv, ANu lirrv.
!n,'l< )•■ 'I.
V, who luul iiottil as
•iug liis lifc-tiiuc, kill,
Icocasol, usiil uumtys
it any ;itl>:iiHit :it tmi-
sing tUciii, tliu iiiurt
lit a^^ill^t thi; ailiuiiiia-
iua:-tcv li;iviiig ;il)ii\vt.l
tvat'ir a Liiimiii^^.-iiiiiiit ,
issiU;^ thii'Ugliliisluuiili
t rofnscil nil inniuulto
Md' muni v. lhii-"ti\
tor till' ik'ccasL' ul tlw j
|irijL'Urcil kttcrs ui ail-
;l', auil suliSL'nUL'utly th«l
lissuilol tlif assets iis the I
iif tlif luliuiuistnitiirK-
liill was liltil to Liiinroe
he uii'i-uiustaiK'cn, tliiTel
ly iiiiiii-iilii-Tili.'ahnL,'with|
,l' aihiiinistratcr Mrtlmsel
oil thf (Icfciii'.ants ;u-im-r
t, (111 all ui(iin.'yt; n'Ovivfll
ii'erlv cxpclKka liv tWin-F
[ au'd two ami a hull \ki\
^-filliy hull ol- them, liutj
rctusijtl the c'lsts iii tliel
jfi r it to the .sunvi-;ita|
iR'iisatioii to he ahuw.il
,1 the ri-hts «.£ all the|
inn to L'xeeutovs (irtviisj
,11 tlic amount ii:uviiirf
nd tlic time anil UM
■ase, a commission (iili\l
s I'Lceivoil ami oxiieinleq
it ainoiuit on the liiotitV
.led, haviiiy heeli aU'WoU
master's ivimrt, "» tbr
allov.ed. r/(|"/ii'-"" ^'J
earrieil on testator's l"i
mgh an agent, oiu '•: !
ilaeeoceasi('nallyto>ui«l|
,illy -.-lleU, thitai. '
i-ceeiveil from this f"i;P
. of coiulieusatinii tlie I
,vere entitleil to he cm
,1 that nut ilhl-ieraUy.
f,.ll..we
ii;3
EXECUTORS AND ADMINl!-TRAT()RS.
IIT'I
liu
thf last case
BUt'itled to eomi
ieu>;
i.ct, -- ^' ''•'*• "'•
the \YMim\
of the A(^
•21 Oiv. :mi.
cutorl"
eiititleiltoalM
Ifonnod by •-" ''iJ''
ffliicli were so jiorfoniied liy him gratuitously.
iJMm "■'■ Biinuml, 10 C'hy. 479.
Where an executor had retained money in his
kixU nnemploy-'''' for which on iiassing his
"iiiuts lie «as charged liy the aeeountaiit witli
forest and rests, ho was, notwithstanding, iil-
lincd hi** coniniissioii and costs of tho suit, j
l,Ms.Bnrri't, 11 Thy. yi'X ,
Fiiiir per cent on all transfers of stock and all '
miiiitvs pai'l '" '^"''^ collected : — Held, not un-
rttisiiiiable. Tumtnce v. Chnivtt, 12 C'hy. 407.
The old rule as to comiiensation of trustees
ksiuilv heeii ahrogiited hy the surrogate act so
faras relates to trusts under wills. W'il-ioii v.
j>nM,ul, 15 Chy. 103.
Since '22 Vict. c. 93, sec. 47, C. 8. U. C. c. 10,
s iVt it has heoii tho settled practice of the
intter here, in passing the accounts oi execu-
tors 1 1 allow them coiupousatioii for their exo-
cutiirship, without an order from tho surrogate
jad'c allowing the same. Whore, therefore, an
esrtiitor, I'cndiiig an account heforo the master,
oltiiiied such an order, which tho master acted
mmwitlumt exercising his own judgment, an
spiH-al from the rejiort of tho master by the
cmhtors was alloweil, and th'i executors ordereil
tnmy the costs thereof. Bhiijur \\ lyickxnn, 15
Chy.'i33.
\ Wcv to executors, expressly as a compen-
utiuut((r'their trouhle, does not, on a deliciency
01 assets, al)ate with legacies which are mere
Unties, even though the legacy somewhat
acttds what the executors would otherwise
lave lieeii entitled to demand. Amlersoii v.
!k*rU, 15 fh.v. 405.
Wliere a legacy is given to executors as com-
, p:iis;«i(iii, they are at liberty to claim a further
i (ini under tlio statute if it is not sutlieient.
!hin-m V. DniiMjii, 17 t.'hy. 30G.
Where a suit for the administration of an
I state is iieiidiiig, it is improper for the surro-
gitc judge to interfere by ordering the allowance
I oi a ciiiumissiiui to trustees or executors. Cam-
[(ii*v. llflliiiiii', 15 C'hy. 48(>.
.\ commission should not in general be allowed
1 10 an exeeutor or a trustee in I'espect of sums
I ihich he did not receive, but is charged with on
I tie gruuml of wilful default. Bald v. Thompson,
i;Ciiy. 154.
The rule of the court is to allow compensation
ItCitrustees of real estate under a will, as well as
I to esteutors. //*.
ffliere the estate was large, requiring great
lore and judgment in its management for a
I nmnlier of yeare, the court sustained an allow-
jiiice (if 81500 to the principal executor anil
Itnistce, ami $1500 to the others jointly. Deni-
\m\: Dmlsuii, 17 (diy. 30G.
See also tftHTWon v. Patterson, 11 Chy. 105,
I p. i4;().
(b) Expt'tiiUtKronud Advances,
''«(.*.]— All executor or administrator has no
jngktotile ihillni''- .y to obtain an indemnity
|bv I'lssiiiB hia accounts under the decree of the
There iiuist he some real (piestion to
ibmit to the court or some dispute requiruig
93
interposition, when ho will be entitled to his
costs; otherwise he will not receive them. And
if it should appear that his conduct has been
mala tide or unreasoiialile, he will be ordered to
jiay defendant's costs. \\'/ii>f v. (.'iimiiiiii<i,i, 3
C'liy. 002.
[See now '29 Vict. e. -28, s. 31.]
Under an administration lU'der (ditained bj- a
creditor, the executors admitted a certain sum
in hand, part of wliich they objected to pay into
court, on tho ground tliat it liad lieeii paid by
them to their solicitor for watching and protect-
ing tho interest of the estate uiioii claims of
creditors brought into tiie master's olfice :—
Held, that they were entitled to do so ; as it ia
the duty of tho executors to protect and look
after the interest of the estate upon these eiKjui-
ries, and this thoj^ do, not strictly as accounting
parties, but in virtue of their representative
character. AV /}ithrurk'.< EMuli', S ("hy. 409.
A testator devised his real estate to his widow,
and in the event of her re-marriago to his
children. The widow afterwards tiled a bill
against the executors, charging mal-administra-
tioii, which was wholly disproved ; and the
master having found that the iiersonal assets
were insutHeient to disidiarge the remaining
liabilities, tho court directed the executors to
receive their costs out of the estate : that a com-
petent portion of the real estate should be sidd,
and that the testator's children slionld be made
parties to the suit in the master's oflice for the
purpose of retaking the accounts, if desired by
the guardian, they not being l)ound by the ac-
counts alreadj- taken ; and, under the circum-
stances, refused the widow lier costs. Norris v.
Bell, 9 Chy. 23.
A retaining fee paid by executors to their soli-
citor in an administration suit may be a reason-
able disbursement. Clii.-iliohn v. Barnard, 10
Chy. 479.
Executors are usually entitled to their costs,
as between solicitor and client, out of the estate ;
and if th" executors, in addition to the costs of
the suit, lave incurred any other costs, charges,
and expenses in the administration of the estate,
on this fact being stated to the court, but not
otherwise, an inquiry will be directed, and the
master will bo authorized to include them in his
account. Story v. Dunhtp, 13 Chy. 375.
Where an executor has in good faith paid his
solicitor's bill of expenses incurred in administer-
ing the estate, the master may, without taxing
the bill, moderate it by deducting charges which
appear not to be proper. ^ft•C(n^l|(^r v. McKin-
non, 17 Chy. 525.
The court, although it couoidered the plaintiff
entitled to be paid his demand, thought the exe-
cutor, under the peculiar circumstances, was
justitied in having resisted payment without the
sanction of the court, and that in the administra-
tion of the estate the executor would be entitled
to be paid his costs of litigation. Griffith v.
Paterson, 20 Chy. 615.
One of several chihlren of an intestate insti-
tuted proceedings against her mother, the ad-
ministratrix, and the administrator of the estate,
seeking an account of the personalty, and also
of the rents and profits of the real estate, which
it was proved had been received by the adminis-
mm
117:)
KXI«X!UT()R8 AND AD^riNrSTRATORS.
tl'ilti'ix iiliiiu'. iiiiiir liiiviiiLT lii'iii jpiiiil to tlu^ iid-
liiinistratcpr. 'I'lu' ai'i'mints tiiUcii in tlii' niastur's
(•tli''i' ■iliiwi'il that ill i'rs|icct dl' tlic )ifi'siiiwil estate
tlie iH'i'soiKil n|iicsriitativt'i< had jinnicrly ex-
jiclKled 8400 iiiiiiT than they iiiid i'cci'iv<!il ; and
tliat till' aclniiiiistivitiix had exjiendcd the runts
so voi'i.'ivcil liy lici' in sM]i]ioi'tini; the jdaintitl'
and tlie ofhef i-hildiiMi of the intestate ; and that
all the ]iarties inteicsted tlierein, other than tlie
]ilaintili', liad released the iilaintill' t'roni all lia-
liility in res[iret thereof ; which reh'ase the iilain-
till liad also |ir(iniised to join in, hut sidise-
<inently refused to execute. The court, undi^'
the eireuni.-tauees, though it eould not deiirivc
the jilaintili' of her share of the rents, ordered
her to pay the adnunistrator his costs of suit ;
and also to pay to the administratrix her costs,
less so much thereof as was occasionecl liy lua*
resisting; the claim of the plaintitl' to the rents.
J'ar.^ill V. Knnii.hi, 'I'l Cliy. 117.
Otliir ('«.«■.■'.] — Where executors an<l ilevisees
in trustnf land were assessed as owners : — Hehl,
that they wei'o properly so assessed, ami that
tjieir own goods niiu'ht he seized for the taxes.
JhlDliynVV. Ihlinj. 17 <,t. I'.. ■-'7(>.
A testator's sistei' jirocuivd a niarlile slalito his
mcinoi-y. Ilis^idow, the actinj.' executrix, hav-
ing in hands no funds of the estate, ''ave her the
note to the sister for the price, wliicli was mode-
rate in reference to the estate and degree of the
deceased, lint she had not p.aid the note, when
she made her claim for it in an administration
suit, and its allowance was o|iposeil liy the testa-
mentary i^uardian of the infant lei,'atees. 'i'lie
question clid not ati'ect creditors of the deceased,
and it w;is not |)reteude<l that the estate was
liahle for the note or for tlie ]irice of the slati :
— Held, under these circumstances, that the
amount should be allowed to the executrix.
M-nni"^ V. l-!UU,'ii, 2 (.'liy. :.-14.
An executor is entitled to interest on money
advanced by him, and properly expended in the
management of the estate. 1 h.
In an administration suit the wid<iw of the
testator had made a claim for dower, Mliich had
been allowed, and ii|ion an appeal from that
, decision the Court of A]ipeal reversed the judg-
ment of the court belo\\-, in so far as it had
aOowed the claim for dower, Imt gave no direc-
tions as to the payment of the costs of appeal.
The apptdlants having paid their own costs ot"
the appeal, tiiis court upheld the finding of the
master in allowing tlieni such costs out of the
estate. Ih.
The lessee of land, wicli the right to purchase,
devised the same to his son, if it could be paid
for, and if it eould not, that one li;vlf should be
sold, and the purchase money paid I i the otiier
half, which he gave to his son, an infant. The
executor advanced out of his own moneys suffi-
cient to i)ay the price of the land, and the lessors
conveyed to the devisee. 'J'he personal estate
being exhausted, the court, under the circum-
stances, directed a sale of that portion of the
lot which the testator desired should be sold, if
it should appear uiion eiKpiiry before the master
that the pa.vment to the lessors was for the benefit
of the infant. Laniii v. Jermyn, 9 Chy. 1(50.
Executors became personally liable to the sur-
viving p;irtner of the testator for the payment
f tnr lier
' U'(.'l'.l
'■ of a sum su])liosed to lieei|Ual to lli^ Aun,. i, o
estate, and he thereuiioii released to tlnin n
his interest in the pai-tnershiii estate, wIikI, \s\.
: by them wound np, .and the proeeeil< ■mm,]; i '■
liipiidation <if the testator's .Ichts. Tliis .'"
rangenient was found beiielii^ial to the tc<fit ' '
estate, and the executors were helil eiititlud't
, a lirst charge on the proceeds of the estate fir
, the UKineys paiil by them to the snrvivin t -lart
ner, and for what they still owed liini on their
: personal obligation, as also thi. ainoimt nf ,.„ni.
I mission allowed them by the Judge of tlieSiirrni
! gate Court. Iliii-riiidii v. I'ulii i'miii, II Cjiy |(|-'
I 'J'he widow and administratrix of an intestate
I got in his personal estate, oc<iiiiieil tliu real
j estate, received the rents and [irelits thcn-uf
and silent a considerable sum in iiiiiinivin- it'
She also maintained the infant lieir«, td ulimn
no guardian had been appoiuteil ; dh-M, f||,{
the personal estate, and tlic proceeds m\,\ I'lrniita
of the real estate come to her hands, nm.-t lirst
be applied to vards payment of ihdits, and tlnii to
reimburse her for the sums spent in tlir infants'
maintenance. Xo allowance was mad
I improvements, but she was not t
I with any increase in rental caused tlieivliy, I.
\ re linr.itl, IUotij v. lirn-iU, 11 Chy, •2')'X
An executrix, (vho had an aunnity clniri'Cil nn
; the income of the estate, I'eal ,-nid 'pers.inal cj.
peiided money in good faitli in iiiiiivipvinj;' th,.
real estate, ;ind in other unaiithnrizid \vavs%ii'i
was consei|uenee, found l.'irgi'ly iiidelitcil to the
' estate :- lleld, that hi'r expenditure in inipivive-
^ nuMits should be allowed so far as it had enlimuwl
the value of the estate. .l/i./7. y v Mn'lh-ir)
\ 14 Chy. ,V)I.
^I. was administrator of the estate of S., ami
, was managing the real estate for the heirs' ; he
: was also one of the executors and tni^-toes «i
j E. ; there was a sum of .'JSOS.').') due for taxos nn
some property of the S. estate, and M. iiaiil the
I same with money of the E. estate, dirirting the
agent of that estate to charge the aniount to the
; iS. estate : M. did not enter the anionnt in his
: accounts with the S. estate as a loan, and, on the :
contrary, in the accounts which he rcnilcreil he
: took credit for the .anioiiut as a payment hvliiiu-
self. The heirs knew mithiiig of the loan until j
' sonic time afterwards : they liad not anthoriztd
M. to borrow money ; and he was at the time]
j indebted to them as agent in a sum exiwiliiiji
the amount of the taxes ; M. afterwariLs ilitdl
insolvent, and indebted to both estates :—Heiil, [
I iu appeal, reversing the decree liclow, that the j
j E. estate couhl not hold the heirs of tlieS. estateJ
liable for the i<S(l8.5.'), and w.is not entithil tu.iJ
I lieu therefor on tlic jiroperty in respect ol whidil
' the i.axes were payable. /,'»•'/;/ v. Slirm, 13
Chy. 35 ; S. C. in the court licl.iw, UK liy. i!i;i.J
An executor or .adniiuistrator cannot, liy ]mV
ing <irt' creditors of the estite, create a ilt'iii.'iiiil
in his own favour that will give liini a ii:.'ht i){|
■■ retainer in priority to other creditors. -Ml
! he would, under such eircMiiistauces, he iiititleil
to would be to stand in the place of tla' iTflit'iil
! he has jiaid ott" ; ami if there prove to lifaili'!i-l
I ciency of assets, he will only he cntitk'il to I*
I paid pro rata with the general creditors of tli^
estate. ll';//;« v. ]Villl.-<, L'O Chy. 3110.
A testator devLsed his lauds, clwr{,".'il «itl(
payment of debts, to his wife for life, .unl i" 'li^
event of her death (jr marriage, tu his cliiMren
1 IT'",
;o lli^ hIuII'i,' ilitll(;
lasfil l(F thi'iii n\\
ustiili', wlni.li was
rdoi'ril-i :',]i('licil ill
ili'litf. Tins ;\r-
il to till' ti'^tut'.r's
ru lii'lil I'lititluil til
s of tlio I'Stiitc tor
the surviviu.; pnrt-
iwimI liim mi tlicir
111' iuiKumt (if I'lim-
jiuljir lit' tliiiSiirrn-
iirtvii, II Chy. 105.
itvix 111 M\ iiitiisUte
(lecuiiiiil tlie vtal
mil \inilUs Uiiimit,
mil ill iiHliniviug it.
il'.iiit lu'ir-. til wlmm
„,iut.il:- lliMtliat
priiiTfils mill \iriilit3
her bauils, imii-t tirst
;(if (Icllts, .■lllll tlllll tn
i s\H,'iit in till' infiiiits'
L'e was iiiaile for her
IS lint to lit> i'liiir(:;oil
civiisi'il tlieivliy. /n
/, 11 ciiY. 'i'l:*-
111 aiiiiiiity (■li:ir;.;fil nn
i-vn\ Mii'l IH'VS' 111:11. f-
litli ill iiiili''"\ii>g tl>«
nautliiivizi-il ^vay^ ami
u-H'\\- iiiili'litcil tn the
xiHiulitMi-i- ill iiiivrfi^'e-
iot'arasitliaiUniliaiicoil
,f tlu' estate 111" S., .ami
istatc for the lioirs ; lie
•cutors ami tru^tL'Os nt
;SOS .')."> iluo fur taxes nn
.'^.tate, aiul M- V^ii'l '!'«
\-\. fstate, ilirci'tuig tin)
l,a'r"e the auKHuit tn tiie ,
Lt,-v the auiiiiiiit i" liw ]
W asahian, ami, mi the 1
t^uhirUheiviiiUreinie.
iit.asavaviiieiitliyliira-
',thi..t; "1 "tli^^ 1"^>" ""*'
huv hail nut aiitliiivi'H ]
;„,r he was at the time
rent ill a ^111" exeeeili'-a
M. afti.-nv:ii''''' 'i.i;i|
, to both estates -.-Hv
a.erue l.eluw. that tha
the heirs. if the SMtateJ
Ixvas not eiititUutoaJ
l,erty in respectiit ^^hf
uunliehivv, lii^'li.v.lW.
listratiir eaiimit, ''V H
:.stato,ereatoailem..J
wilUivehimaviJiH
Ihor ereilit'iv^. ^H'"'
j;:.u„ist:uieesl.cei.. le.
It^-elirovetoK-;^
only he eiititleil t.
.,nei-al oreilitii« ul tin
r-20 fhy- 31'0.
t wife for liC'i ^'"'.1' „
Uh
KXKCUTOltS AND AD.M I N1ST15 AT< )i!S.
117S
,1)6 lielil f<"' them until tlu^y come of aye hy would dthurwiso bo barriMl by the statute of
the cxcoiitor.s hereiiiiltei' iiaiiieil, to lie aiipliei
their use uiul beiielit in the way anil manner
LXeciltiirs shall see best ; ainl when '
rhihlreii shall emne of at,'e, the lesiilue
;U'liv. Chamb. 101.
lor
as the
the al
the al
iiive
jimiierty shall be given to the
liniitations. KHm-' v. Klii
Hoyil, .l/((.-/i7'.
The right of retainer out of legal .assets aiijilies
to ei[uita1ile as well as to legal debts, esjieeially
lell 111 e
ua
1 shares." 'I'he exeeutors and
the willow, -having sold the real
estate (as the will enumwered them to do) and
illi-il a large jiortion of the iiroeeeds in siiji-
thilil
executr
I in a e.ise where tliero is no eomiietition t
if
IX,
lit
ereuitors,
//.
.11'!
i.irt ami m:""
iluitll ■
telianee of the ehildreli : -Held
3. //( (/iillicliiii/ (lllll lliiil'r.hiij /III- E-'tiili'
le exei
utors were e
Hint soexiieiu
I'l'ate,
tho am
w;i3 nil "I
uiiU-ter's elhce.
led f
iititled to bi
or maiiiteiiaiiee, w
M! allowei
J All executor sold a mortgage given to the te.s
hi 'h *''^^"''' taking the \i\u
III iiassini
tl
leir aeeouMts in tin
( ' V. U I'll lit I
,t, -I'l ( '1
ly-
imself or onlei
,d
Held,
s notes payable to
luioli an issue o
f 111
lileiie
tn I),l,l.< illl:' till III III/ till- T<.<lilloi:
Anailniiiiistratorl
titis ill <"'
illiiuuie
leiui; a eiei
litiir of the iutea-
iler to seeuri' his own
debt,
iiitess
111
lit
to his friend the iilaintill', to whom the ', JMhumiii v. Jii/t i.^, ',) CI
adiiiiuistravit. that this in law .'imounteil to a
receipt of the original di'bt, making the exeeutor
chargeable with the mortgage as an asset in
pussessiiiii. Miicl.itl, V. Miirhitli, •_'(! (J. IS. ,"4',».
The executor of a mortg.igee had not, under
c. 87, (". S. IT. ('. 8. 5, any ]jower to convey tho
legal estate to a person puivh.asiiig the murtgago.
laliil
ilittst.ate iiwe
tbt tin
tli'J jiii
liv t!ie 1
il nothing, witli the understanding
in his
luld 111
lid um
''liieiit. an
I till
le iiroceeil
Is paid over ti
y. or-'.
[Hut
:!-• Viet. 0. 10, (».]
Although the rule is, that executors or trustees
iiititl. The court, on the application ' will be chiirged with what tln'V
lught tl
tlu' tenant of the land, set aside the judgment : „i;iile, with what they actualiy did niak
> navo
nilewntiiiii with costs.
6 OS. Hi
All oxe
pri'liei'
Hiiiii.<tiily. .\fi .\lii.tt.
eutiir is entitled to t
lie persona
tv at its value for a debt due by tho ' repeal of the usury 1
■' . . 1,- , ill- 2- .,1.,.., I. ,..;♦,- .,t fi,.
w ith what they must be presumed to have made,
out of the moneys of the testator, coiuo to their
hands ; still, where such moneys had, before tho
iw s, lieeu mves
ted
in lirst
kite til him, .and his purchase at public auction elass security at the rate (if six per cent, per
oitlio testator's personal estate, ill lieu of inoiiey •■^" " '"
till
uirt,
on ;ii)iica
.• hiiii, w;i
held valid. Yt>.-<f v. Ci
SC.
F. l.V.i.
He luiv ivt.iin a debt tiarred bv the statute.
d
rep
ort.
il fi
the master'.s
sidered the executors were not called
ipoii, at the risk of being charged with the extra
aiiiouiit of interest, to call in those monevs ami
I'cst tho same at the rates, as tli
de
esliaiisteil, can he retain such a debt out of tho '
pructeils of real estate. Cr<iot-< v. ('riinti, 4
thy. (115.
Atc<^tatoi', a short time before his death in
1^1, ami iliiriiig his last illness, signed a state-
ment liy which liii acknowledged himself in-
(Witeil til his father, one of his executors, in the 1
i nui 111 .t.'73 8s. ,")il. His will contained direct]
I »utli(irity t<i his executors to s 11 his real estate
i fortlie'iaynieiit of his debts. In I84IS the exo- ,
cntiirs ulitaiiK'il an administration order, and the
iitkr siiiidit to have his claims against the!
estate, iiiii.iiliiig the amount so acknowledged,
paiilhya sale of the laud. These claims were 1
tfiistfil liy the widow and the heir-atdaw, the :
I ttitatiir having been in a weak and dying state j
I tteiihesigiioil the acknowledgment. The father
jkl until ahiiut ISii
lllelauil, ami a surcharge was put in against
Uiuitiir the rents and prolits : — Held, that mere
I physical weakness, however great, without proof
joiiiiintal iiicaiiacity, is not siitlicieiit to render
linvaliilaiiaeknnwledgment of debt by a testator:
Ittattlie statute of limitations does not bar the
[tlibiuif an executor against tho estate of his
Ikitator; ami that an exocutcr is not justified in
Uti:|iiiig an estate open and unadmiiiisterod in
lonlerti) ulitain interest had upon a claim against
lit i'lH-sv. Enir.^, 11 Chy. :V2o.
IVhere an exeeutor of a creditor is also admin-
iLttator or executor of such creditor's delitor,
Itht right of retainer arises wlioii there are any
lies't*, and he will be assumod to have exercised
Iwdi riglit without any actual act of appropria-
noc
oaiicil at.
QiiiiTe, where the personal estate^of a testatoiMs | shewed, moneys could have been
It also a])[ieariiig that [lart of the money of the
estate had been loaned by the executors to them-
selves, they were charged with the higher rate
of interest 'thereon. Smi'li v. A'l.., 11 Cliv. :tll.
An assignment by an administratrix of a mort-
gage, )iart of the assets of the intestate, was
held valid, though not therein stated to be exe-
cuted as adiuinistratrix. Yiirriiititiiii y. I.itcii, 12
(.'hy. 308.
Executors should proceed witii iiriiiii))titudu
to realize the as;' 'ts ; and the law presumes that,
as a general rule, a year should be sutlicieiit for
this purpose. They should exercise a reasonable
discretion as to suing debtors, and preserve evi-
dence of having done so in the case of uiicol-
lecteil debts, the onus of proof being 011 them,
been in" the occupation of : '""^ ""^ ''.'^ ^ho legatees. I'.iit wdiere the result
■ ^ lirovcs untortuiiate, they are not charged witli
the loss, though the court should not concur iii
tho propriety of the course which, in the boiul
tide exercise of their discretion, they took. A
delay of ten months, which resulted in the loss
of a debt, was held to rcipiire explanation.
McCarijarv. JfcKimioii, 15 Chy. 301.
Delay on tho part of executors to sell lands,
which by the will are saleable for payment of
debits, will render tho executors liable for rents
and profits. Eiiip/i v. Enux, 1 1 Chy. 3'J,').
In considering whether evidence is suflieient
I to relievo an executor, as between him and lega-
tees, in respect of uncoUecteil debts of the testa-
tor, the lapse of time in connection with the
smallness of the debt is proper to lie taken into
iti* kiuy established ; and though his claim account. McCanjar v. McKinnon, 17 Chy. 525.
n !
IM^r^
1479
EXECUTORS AND AD>rTXISTRATORS.
1 m
I■]xL^•lltcpr.^, ill till! (.'Xuicisu of a {inidont diacre-
ti'iii, limy iioci'iit liiud in ipayiiieiit of an execu-
tion (lul)t. /h. ]
A jierxoii iiitfiiiliiig to take out letters of ad-
niiiiit'tratioii I'xeeiited a [lov.cr of attorney to a I
credit ir of tiie intestate, authorizing lii.u to !
reeeivc' all moneys iluc the intestate. The jiowi-r
was L'iven uimii an aj^reeiiieiit that the attorney '
slionfd jiay himself oiii of any mor.jy he should
receive. 'I'lie aiipointor after\V!'r<ls revoked the
power, and then took out letters of admiuistra-
tioii ;— Held, reversing the decree of the court I
Lelow, that the power was not valid against the
administrator, and tliat payments made to the at- !
torney l>ya delitor after ailministration granted, I
and witli notice of the revocation, were unautlior- .
ized, and did not discharge the debtor. Sprajrge, :
C, diss. Sinclair V. JJiiriir, lOt'hy.o'J; 17 Ohy.
621.
4. Manaijinij lienl Entate.
A. and B. , executors and trustees under a M'ill
■with power of sale, sell and take a mortgage to
secure purchase money, the\- heing in the recital
named as executors. H., witliout the knowledge
or consent of A., assigns the mortgage and ap-
propriates the consideration money to his own
Hse : — Held, that no estate passed under the
assignment, except so far as the trust estate might
Ije found debtor to B. : and also, that as between
the contending eipiitics of the trust estate and
the assignee, the maxim (jui ju'ior est in tempore
potior est in jure would apply in favour of the
trust estate. Ilcmlirxdn v. li'(((«/.i, 9 Chy. 539.
Where executors, with( .,t any authority, as-
sumed to manage the real estate, they were made
to account for their acts, as if they had been
duly empowered as trustees. In such a case it
is tlieir duty to keep accounts, and lie ready at
all times to explain their dealings, t'hisholm v.
Barnard, 10 Chy. 479.
The testator, A. M., had been in partnership
in business with one J. A., and died withoutany
settlement of accounts, appointing A., V., and
L. his execut(us. The testator had, besides his
share of the partnership assets, a large amount of
personal property, and also real estate, which he
specilically devise<l to his f<mr sous, then infants,
and appointed A. their guardian. The executors
receix'ed the rents of the real estate, and applied
them to thy maintenance and education of testa-
tor's children. The real and personal estate
having proved insufficient for the payment of
debts, the executors were held liable to account
to the crc(lit(U's of the testator for the rents re-
ceived by them and applied to the maintenance
anil education of the children. Harrison v.
Paffer-iun, 11 Chy. 105.
Where an executrix, jointly with one or more
of those entitled to the testator's estate, and
during the minority of others of them, con-
tracted for the sale of portions of the real estate,
anil the purchasers made improvements, the
court refuseil to disturb the possession of the
purchasers before the time had arrived for the
partitioning of the estate, and charged them
meanwhile with a ground rent only, ana not with
the improved value. Mvrley v. Matthews, 14
Chy. 551.
When an execution is issued against the lands
of a deceased person iu the hands of his execu-
WlTt
V rt'.'isiiii
tors, and the heir is an infant, or not ciiiu|,(.ti.,,f
or not aware of the proceedings, tlic ixoouturi
should ai;t ill the matter of the s.iiu us a pniil.Tt
owner would. /» re /)arii<, 17 Chy. tlOH.
Executors with a discretionary power to sell
their testator's real estate :- irdil, ui.t ]\^],u
under the cireunistances, for loss ari-iiu' fr,,'
deferring a sale. Hut where they kept tliu iin
cecils of a sale in their hands, witlmiit liavinrit
into court, pending the suit, thi-y wtiu ciiar.,!
with interest. McSlillnu v. MrM'iiliiK, 'Jl ( liy vn
Kxecutors were cmi)owercd to si;li the real
estate, but the widow refused to bar licr ilnwe'r
which the executors were advised by C(imi«oi
she was entitled to claim. In fact, acccinliihrto
the terms of will, she was l)oiiiid to elott, Imt
the executors honestly believeil s|u; was iiitltl„l
to dower as well as the ])iovisioii uiiiler thi' will
and refrained from selling when tluyc.ml.l Jiave
done so to advantage : --Held, tiiat tiny
not responsible for any loss sust.iiiiud
of the delay in selling. Hi.
The master by his reixirt foiuul thai the m-
cutors had paid to sonic of the chilili'.n df the
testator, all of whom were eipially ciititliil muli^f
the will, diti'erent amounts, and to one df ti^,,,,
nothing, the estate proving iiisullicioiit : llfM,
not a Lrrimnd for apoealing froiu the liiasfir'i
report, but that the ipi-stimi, whether tlif oxwu.
tors were estmiped from denying the siilliiicuoy
of the estate to make payment toall tliiMhiMnu
eipially, or whether tliose paid wcic liniin.l to
refund, was one proper to be discu.'SSL'diiii fmtlitr
directions. 1 h.
5. Other Cases.
An expresf, promise to pay made to a tiiini
party may (,nure to the benetit of an a-hninis-
trator de bonis non with the will auuuxuil, thmigh
at the tiw'jof such promise he had not ulitaiiifj
letters of administration. /^'K/v/ v. Kii'-hmn 6
Q. B. 470.
A. makes a note payable to B. or nnkr ; B.
endorses to C, who endorses to I). ; |l., the
holder, dies, leaving B. one of the cxccutoin ; the
executors of i). sue C. : — Held, that l». haviiiL'
made B. his executor, B. Mas disciiai-uail, and
that there was no remedy again.-^t tlic sui)si;i|Ueiit
endorser. Jenkinsx. McKenzie, (i (I B. 544.
Ejectment. The plaintilF claimed uiulfi'the
grandson and heir-at-law of tlie patcntiu, F.
Drouillard ; defendant under his secoiul son
Dennis, to whom it was alleged that lie had
conveyed. The patent was for \iiVi acits, in-
cluding the land in iiuestion. Dennis ilevised
this, with other land, among his cliildieii, who
by partition conveyed it to one of them, ,1.,
who afterwards devised to his linither 1! — K.
died, and his land was sold uiuler a jiiilgimnt
obtained against C., his wife, on a cunfessinii
given by her as his adniiiiistratiix, ami was
purchased by her at the sale, and cdiiveyedto
the defendant :— Held, that the fact of C. being
administratrix could not be impeacheil, so long
as the letters of administration granted to her
remained in force ; and that she could le;_allygi>e
the confession she did, and purchase iiuder the
judgment obtained on it against herself, tlmngh
it might furnish grounds for suspicion of fraud.
Eades et al. v. JUaxwell, 17 Q. B. 173.
1./^
■f
iiMiJtivfe.k \ "I
t, or not «Mimi]ctiMit,
lings, tlui I'X.'outnri
liu sail; ii.i ii iiniiU'iit
17 Chy. r,OH.
onarv i»iwur to lell
- Hi'lil, iM.t lialile,
)!• lews ari^iiiy frmn
.■ tlii'y kt'jit tiif ]iri).
s, witliniit l«i_viiij;it
, tlifV wiTt; riiarm;'!
V.U;//,i/i,'.>H'liy.3ii9,
'e<l to NcU tlii; real
eil to bar !n.'r ildwer,
ailvisoil liy cimiiiirl
In fact, aocordiiii; to
ImhiihI to fleet, Imt
;voil slu; was iiititlwl
kisicMi multr tlic will,
vIk'H tln'y I'ouM liave
Irlil, that tliuy wcri'
s ruistaini'il liy rwismi
; found that the m-
if tlio chihhvii 111" the
LMpially fntitk'il uiidtr
, anil to mil' ui thtm
jj; insiitlicient : IhM,
n^ from tlic iii.istiv'j
in, wliL'tliur thi' (.-xirii.
I'liying tin.' siiirn-'iciiuy
ncnt to all tliccliiMiuii
; paiil Wi'n.' liiuunl to
lifilisuussL'ilonliirthi.T
pay mailo to a tiiinl
liun'otit of an ailiniiiis-
will aunoXL'il, tlimigk
hi; had not ohtaiucJ
liranl V. K(t'-li'uit,6
le to B. or order; B.
rsfs to I). ; i-l., the
_ of the executors ; the
Held, that 1». haviii(j
was disehargeil, and
against tlio subse(|Uent
u-Je, ()Q. B.5-W.
If claimed under the
.)f the patentee, 1'.
iider his seccuid si.ii
alleged that he had
as for 1'200 acre», in-
ion. Dennis devisal
,i,g his children, who
to one of them, J.,
, his hrnther K -It.
dd under a jmlgimnt
wife, (in i> cunfessimi
uinistratrix, ami was
Isale, and conveyed to
it the fact of C. li^'ii'g
died, so long
ll«l
EXKCLTTORS AND ADMTXI8TRAT0R.S.
US2
|be impea
•ation gr
ante
d to lllT
she could legally gi;
[I pur
taiust
jr suspic
Q. B, 173.
■hase imder the
'herself, tlumgji
fraud.
In ejeetment it appeareil tliat f). died in ISril,
iitestnte, seized of an unexpired term of years in
the 1.1'.'
niaiiie
and leaving an only son, M,, who re
1 ill pdsieHsion, and on his death, in lsr)7,
(Ipvised it to hin niiele, .1. !>., for life, ami then
I til,, [liaintitr, the testator's eiiild. M. I).,
notiH'r mi'le of the testator, wa.s appointed
itceiitiir. lie saw .F. I), in possession utter M.'s
loath, and was liiniself living on the place, hut
|8."'S, lie, as executor, conveyed the term to
V. ; and afterwards, in ISliO, .f. I), adiiiinis-
C.'s estate, and as .such .nlministrator
ion ot
in
line
tered to
a^sii-'iied
fiiiilaut elaimed. The court I )eing left to draw-
tin, same iiifereiiees as a jury, and the defen-
d.int's claim alipearing to l>e dishone.st : — Htdd,
that tlie plaintill' must succeed ; that on the
dtatli of * •' I'cr only ihild, M., lemaining in
,i,isse-ision, liccanie entitleil, so that .1. 1). 's deed
i/adiiiiiiis'tr.itor conveyed nothing; that there
„;ii snttieieiit evidence to infer an assent liy AF.'s
(xveiitnr to the heiplest to .T. H., which would
extend to tlic suliseijuent devise to the plaint'tF;
and tliat his conveyance as ext-entor was the. e-
fnreinniierative. Tcuhim v. Leamiij, 21 Q. B. 'illi.
Ciitiin goods of testator were left in the house,
where the plaintitV (his daughter) and her mother
continued to live and use them for ahont a year,
until the mother died, when defendant, who had
ht't-n living elsewhere, took possessionof the house
with these tilings, and refused to deliver them
mito tiie lilaiiititV .as the mother's executrix: —
Hdd, th.at the ]ilaintiir had no such pos.session
nf tliese goods, either in her own right or through
liorniiither, as to enable her to treatdefeiidant as a
wronL'iloer: that as herniother's executrix she had
iiiitifle : ami that she therefore eouhl not recover
[orthem. Mc<-'niri/ v. Mil'mri/, '22(.}. B. C>'20.
V\«m a jiidgiueiit (d)taine(l against the execu-
tors of a mortgagor, a writ again.st the lands of
the fe^t.itor was sued out, under which his in-
terest in tlic mortg.age iiremises was sidd ; and
afterwards the purch.aser at sheriff's sale (d)-
Uineil a conv.yanee of the leg.al estate from the
iiiiirti.'agee, all which transactions to(d{ jdaee
afttr'tlie ]iassiiig of the 7 Will. IV. c. 2, 1837 :
Held, that under such circumstances the devisees
of tiie mortgagor were entitled to redeem. Walton
T. ani'i/W, -2 Chy. 344.
Quale, whether an administrator de bonis non
canoalliniiuestion the administration of his prede-
cessor hi otKee. Ti[f'ii ">/ v. Thonijmm, !( Chy. 244.
Where the same persons are executors and trus-
tees under a will, they do not lose their power.s as
moll executors and become mere trustees, when
all the testator's known debts are paid, f)r by
mere lapse of tune. Eirart v. Gordon, 13 Chy. 40.
Where advances were made by way of loan to
the managing executor, as such, and subse<piently
security was taken therefor from him on part of
the assets of the estate, such advances being
made and security taken in good faith on the
part of the lender, and it appeared that some of
the .advances were duly entered in the books of
the estate, and the name of the lender, who had
no other transactions with the estate, appeared
as a creditor in several annual balance sheets
Mut to the other executors by their agent, and
no ohjection on their part was ever made ; the
court refused, .it the instance of such executors,
to order the securities to 1)0 delivered back to
them, without payment of such advances. lb.
A te.itator'8 directio i to his executors to con-
tinue to carry on Imsiness with his siir\iving
partners, does not anthoiisc the executors to
emiiark .inv new c;i])ital in llie Imsiness. Smith
V. Sinil/i, 13 Chy. 81.
M. was the administrator of the estate of S.,
and was managing the real estate foi' the Iniis ;
he was also one of the fxcciitois and trustees of
K. ; there was a sum of SS()S.,")."i due for taxtsoii
some imiperty of the ,"^. estate, and M. )(aid the
same with money of the H. estate, ilincting the
agent of tiiat estate to idiarge the amount to tiiu
.S. estate ; M. did not enter the aniount in his
accounts with the S. estate as a loan, and, on
the contrary, in the accounts w hich he leiidcrcd
he took credit for tlie amount as a iiaynieiit by
himself; the heirs knew nothing of the loan
until sometime afterwards ; tiiey had nut autho-
rized M. to liorrow the money, and ho was at
the time indebted to tluiii as agent in a sum
exceeding the anioiiiit of the taxes. M. after-
wards died insolvent, and indebted to both
estates : Held, ri'Versing the decree of the court
below, K; Chy. 1!)3, that the E. estate could not
hold the heirs of the S. estate li.dde for the
§808."),"), and was not entitled to a lien tiu^refor
on the property in respect of which the taxes
were payable. L'n-iirt v. Stin ii, 18 Chy. 3.').
A discretion given to executors to apply the
interest of a legacy to th" maintenance ami edu-
cation of the legatees, nephews and niece of the
testator, is not subject to the coiitnd of the
court where there is no charge of fraud, or the
like .agaiiLst the executors. Fun iintii v. Mcd'iU,
19 Chy. 210.
An administr.ator, being desirous of converting
saw logs into lumber, for tlie benefit of tiie estate,
an application under 2!» \'ict. e. 28, s. 31, was
entertained, and an opinion of a judge given in
favour of the course suggested. Ri- CaldmU
Ei^tuti', 2 Chy. Chamb. loO. — ib)wat.
Where an executor is appointed for a limited
periocl or until the hai)i)eniiig of some event, his
power ceases with the oecuircnee of such event.
Conron v. C lurk. ■urn, 3 Cliy. Chamb. 3tiS. — Taylor,
Hcfiree.
The assets of a deceased person are not liable
for debts incurred by an executor or adminis-
trator in continuing the trade or business of the
deceased. Lon/l y. d'Hi.-nni, 1!) Chy. 280.
An administrator is entitled ex parte to an
administration order, where the liabilities of the
estate exceed the assets. J{c Ilalli lille, 10 L. ,1.
X. S. 249. -Chy. Chamb. -Blake.
IV. Ll.iHII.lTIES.
1. Pcrmnul LiahUity.
(a) For ActH of each other.
One of • several executors cannot bind the
others by a coijtiorit, and a judgment entered on
buoh a confession was set aside as against all.
The drawer of a bill accepted by the testator
having joined in a confession thus given, the
court refused to set aside the judgment as against
him. Commercial Bank of Canada \. Woodruff
etal., 21 Q. B. 602.
Five executors an<l trustees took an assign-
ment of a mortgage to two of their number,
I i.
1 !
4.:!i
14H.T
KXKcrTOlJS AND AD.MINlSTItAToliS.
jUii
Ih
n
wliioh ik'sriilii'd tlifiii as I'Xi'iiiturs jiinl tnistics
iimtfr tliL' will, l)iit icmtiiiiicil iki tuitlur rrtVr-
eni.'o tn tlio will. Tliu iigi.'iit fur tlio live tlit-ri!-
»Hhiii g.ivo iicitiff to the iiini-tj,',iv;<ir tli.it the
u.s.Hi^'iiMiiiit li:i(l hiii'li liiriilo to till' uXL'iiitnrH : —
Htlii, that liu waH jiistiliiil in ussiiiiiiiig tliat tlio
nMsii;iMiniit was iiiaclu tn tliu t'XiMiiitnis as such ;
aiiii |iayiiH'iits t(i iiiiu III' them iiiailu huii:! liilu,
wero held valid. Kinui v. JJryih'ii, 13 Chy. 60.
r>evi.sees in trust foi- sale iif real estate iiiust
jointly receive (ir unite in leeeipts fcir the [lur-
chase inoney, unless the will pnivide.s otherwise,
and the ease is not atleeted li^ the ju'operty
being eharu'eil witli delits, and tiie [lower of sale
V)eiii^' to the executors eo nomine. h'lrart v,
Hiiyihr, la (.'hy. nr).
Where such a mortgage was taken and the
mortgagees wt^re therein descrihed as executors
anil devisees in trust, jiayinents to one were held
not to be thereby authorized. //>.
One of two executors was indebted to the
estate on a mortgage to the ti-stator, of which
his co-executor was aware, l)ut took no steps
to comiiel iiaynient, and tiie mortgagor as execu-
tor executed a diacharge under tlie statute, and
registered the same : — Ileld, that the co-execu-
tor was liable to make good any loss occasioned
therel>y. Mcl'luidihn v. liiuvii, 13 Chy. o!H.
Qua?re, whether the discharge of mortgage, to
be valid, did not require the signature of both
executors. Ih.
Where an executor saw the estate wasted from
time to time liy his co-executrix and an agent she !
liad apiiointed, and took no .steps to prevent the |
same, he was charged with the los.s. Suctiviijn
V. .Sori'ivi;/)!, 15 Chy. Sol*.
See 77(1' Prurisidind ( 'ninicil af tin' ('orjiovd/idu
of I hi' Ciiiin/i/ < if Hi- ace v. CrviiKir, '22 Q. B. 321,
p. 1.500.
(b) Other CiiKes.
Where executors conveyed land under a power
of sale in the will of testator, but covenanted
for themselves, their heirs, &c., in the deed, for
eood title ;— lleM, that they were personally
liable, and that the grant by them as executors
could not control their express covenant. Mr-
Dunahl V. JJouill et ni, G O. S. lOit.
A. and H. , executor and executrix, having
given a cognovit signed as executor and execu-
trix, and which the plaintiff 's attorney led them
to believe would bind them only as such : — Held,
that though the cognovit might bind them per-
sonally in its terms, a personal judgment against
them must be set aside : — Send>le, also, that the
judgment mil, alleging " a debt due by the tes-
tator in liis life-time on an account stated, iu
consideration of which defendants promised to
pay," would not warrant a judgment against de-
fendants personally. Oorrie v. Beard et al., 5
Q. B. G'2().
Action against J. 8. M. and J. his wife, M. N.,
and AV. N., as makers of four notes signed " The
executors of the estate of the late >V. N. , per
Ero. J. S. M." M. X. was called aa a witness by
plaintiffs, and proved that J. S. M. had managed
the affairs of the estate since testator's death,
and she had left it to him to do what he thought
best in winding it up ; but she said she never
gave him power to make her personally liable,
and that she kiit-w nothing of tlicne iintej.
Held, that though M. might liave ,ullidtnt an-
thority as regarded the estate, lii: ijnily I'.i
none to bind defendants personallv, ai tlii'vu-.
sued. Thr l'ri'.'<idiiil, ilc.. nf' the' i;,,,; lt',i,,h''^
Mir.dUh vtid., 2i\(l h. 2',\i. ■
The plaintiiVs sui'd defendant, , in i\,,iit„ri,(
E., as endurser of three notes payalile tu "th.
executors of tin: late V,.," two lieiii;; i'iiil„r<,.,i
".r. M. 15., agent of the execnturs Z\ the lit',;
!•;. " and the third "the executii|> Iritr i;., i,..
jiro H." li. held a power of attonnv Ini'ii'i the
executors, by which they as exei.iiirix mul n^-
cutors authori/.ed him ("ainong iitli..r th;ni;si i,,r
them as such to make and endorse all ,iirli n.itoa
as naghtbe reijuisite in tlie m.in.'ip.iueiit uf the
estate. These notes, it ap|ieairil, were Vt'ci-iviil
by 15. fr the niak.'rs for dibts ilue to the
estate, anil given hy liim, endorsed as almvc, to
.M., one of the execnturs, who wa> laiL'iJv'iu.
deliteil to the estate, and was in dillii uhi,.!!, J]
telling him that he wanted to get tliLiii iHsci'iuu!
ted on his own account. They weiv sn ilLvuim.
ted liy the pl.untiU's, to wlmi'ii M. ownl a iiiive
sum, and who made no encjuii-ii'S as to thefXtiiit
of H. 's authority, or the cireiuiistiiMron iiiulHr
which M. obtained them. Defeinl.iiit lim-wiiuth.
ing of the matter until after the imtes fell iliie.
The court being left to draw iMfeiiiiri- ni fact,
and the iiuestion being the persmiid lialiilitvnf
the defendant ; Held, 1. Tliat tliei'inl.n-.-iwiicntj
wercsuthcientin form ; hut, 2. Tli.itnut liciiii;i„r
the purposes of the estate they \ww \i„i wilhia
the authority given to M,, the extent «i which
it was iilaintill's' duty to ascertain; .aiul ii nun-
suit was ordered. (.Hia-re, as to the etl'eut nf a
power given by an executor. .Senihle. that it
may authorize the attorney to ciiarj.'e him hy
acceptances, itc, in his own right, I'ur ntlieiwi.se
it would be illusory, hut only i'or the payiiieiit of
testator's debts. Thi' /'n-iii'/i nl, dc, u/lli, (,'(,iv
Jiaiik V. CrouLi, ii() (,J. B. 2'>[.
l)eclaration on a special agreement, hy wliioh
plaintiff sold to defendant a steam engine fur
.^700, alleging non-payment, and mi tlie euiiimi/ii
counts. Sixth plea, set-otl' on two jiniiiiissury
notes made by the plaintitf, payaMe tn !■'. ami
H., and endorsed by them to del'i'iid.iiit, ami (or
goods sold and delivered, kc, claiming a lialaiue
from plaintitt'. Third replication, eqiiitahle :
that the causes of action sued for accriml tn the
plaintiff as executor of one I'., and in it ntliiTwise,
for gofids Sold by pl.untitf to deteinlaiit, which
goods were assets of the estate, as will lie th«
money sued for if recovered ; ami the [ilaiiitilf
sues for the benefit of the estate uiily : -IkLl,
that the replication was bad, for, aiiiniig nther
reasons, the plaintitf on the transactinii ajiju'cir-
ing would he personally liable. I'lir.^mis v. CniW,
31 Q. B. 4,34.
Executors suffered judgment against them at
law for a debt of their testator ; ami the lamls
were sold upon process issued therenii, althuugh
one of the executors owed the estate in :i liirj-'iT
amount. The court ordered Imtli exeiiitnrs to
make good the ditference between what the
lands were actually worth, and the aiiiniiiit real-
ized upon the sale. Mi-Phaildin v. ft""/i, 13
Chy. 591.
One of several executors being imluhteil tnthe
estate, the matter was referred hy liimselt aiiil
his co-executors, and a large sum awarded against
^•M^' ■■
l■^!^!i. t
llsl
; III" tllrw lii>U'»;-~
i li!i\ !• sutliiiciit mi-
tf, lu' iliMily )wil
iiiimIK, iis tlnAMvite
'I'Um'i;.,,; Ihd'\:
iliuit, iui cM'-iitiirdt
ti'M iiiiyaKlv to "the
tNVii lifiiij; i'iiili>r«il
CfiMltnfs (il tllf lat«
;t;i'Utnrs Ititc K,, )ier
if attiinii'V I'l'iiui the
I exucuiiix uiul I'xe.
llll>{ iitlli.!' thiuiiSI flit
inliilSL' nil sUi'llUcitM
iii:ui;i),iniKiit nf the
luiii'i'il, Wire rt'ci'ivtil
;'iir ilclit:' line tuthe
InliiVSfil :is iiliuve, to
wild Wiis lai'^'«.'ly in-
win ill ilillirultii;", M.
to ;4ft tlifiii ilisoimii-
'hey wijiv ^u iliscnim-
111 nil M. iiwi-il 11 liirije
nii'if:< as til theexti-iit
i'irriiliiHt;ilii'oa illiiliT
|»i;fi'iiil:iiit kiRiw iiNth-
.T till' niiti'.s t'fU line.
raw iiiffri.'iiri'< iif fact,
n; iiL'rsiiu;il liuliility "i
riiat tln.M'iiilirsi.'iiRnti
t, '2. 'riiiitiiiit ln.-iii|.'i"r
tlu'y WL'i'i' in it within
, tliii fxtfiit Iif which
asoortuiii ; ami a imii-
, as tip till.' c'tt'ect iif a
utni'. Si-iiiliU', that it
la-y tii I'liarjie liiiii hy
vii" riglit, fur litlioiwise
iiily fi>i' thu iiayiiiciit of
uihiit, ill'., "/ III' ''W'l:
;,■)!.
.■igrffiuoiit, liy which
it a steam engine fur
it, lUiil on the eiiinmull
irt' on two iironiissiiry
titV, payalile to !•'. aii.l
|i to ilefemlant, ami for
kc, L'laiiiiing :i halance
leplication, e;|uitalile :
iueil for aconu'il t" the
1'., anil not otlu-i-wise,
|tV to ilefcmlalit. which
estate, as will he the
■fil ; ami tiie lilaiutilt
■ e estate only -.-llehl,
[hail, for, among "tl"^^r
he transaction ainiear-
ilile. /'((;>"«.< v.Cni'i'i,
liiient against them at
Istator ; ami tiie lawls
lueil thereon, altliough
the estate in a lar-cr
l-oil hoth exeeiitiirs to
|e hetweeii wliat the
ami the amount re.ih
f-l>l„iihhn V. Il'i''"i>,^i
, being imlehteil til the
Iferreil hv himsell am :
lebumawanleilag'ims'
HS.')
EXRfTTolfS ANI> A l>.M I M,s|'|;aToI;s.
1 [SO
ijii, ._ lIiM, tint thmi^ih theawanl inij,'lit imt lie
i';„.liiii.' oil tile iieisdiis lioiioliri,illy iiitciestcil in
liliiiii'i© 1 ■ 1 ■ 1 1 * i 1
tltntatf. It wa« liilnlnig on the exeeiitur, ami
I unit hv tlie exeeiitoi'.H he wanileeiceil tn pay
llu. .-inioii'it- h'liflf" V. Mrh'i ir.'c, l.'iChy. XW.
Y ,^.i,l,,w ami cliiMreii Wfl'o ciitithil mnlir a
II (,, jiii'liort out of the ti'.stalui's property, ami
iii,il» were Hilpplieil for tiiis piupo.se tn the exe
iiler!! : - "ehl, lln't the cieililor wiin mlvaiieeil
,|„. jjiiiiils hail no ehai-oi! iijgaiiist the estate, tint
t iiriieeeil aoainst the oxei'iitors perHtiiiallv.
;"„„/l,«v. />■•/', UH'hy. \\r,.
Where cert,iin creilitors of a deoeiised insiil-
V lit sueil lii^ exeeiitnr, recovereil jinlLfiiients
^i,'„l'„ilil his real estate ami ^'ol paiil in full :
HtM, that they weru still linimil to aeennut,
aiilt'he other ereilitors of tlio insolvent were
■rtitled to iiave the wlmli' estate tlistriliuteil pro
nt;i tiii'ler the aet of '-'!» \'ict. e. L'.S. Jia„k „/
iy.Aiwri-<i V. Miilfiiri/, 17 <"liy. 102.
Where a ilehtor ilied, leavinf,' insntVieieiit per-
smala^setstopay his lialiilitie>, ainl liis executor,
liotwitlistamliiig, allowed .a (;reilit(ir to reeiiver a
iuit'iiieiit against him l>y default ; llihl, that
tiie'exeentor, on olitiiining an ailiniiiistr,itioii
lifilcr, was not entitled to an iiijniii'tion against
wmwiliug on the jndgineiit. l>o)it:v v. AV^,
in'hy. 2-."J.
•1. DUtnhution of Anxeln.
[^,e>viii- rj Vkt. c. eS, ,w. i'r, :.'9].
in iiaviiient ofdehts, a mortgage not due must
It i.veierreil before simple eoiitraet debts, and
tliejilaiiitill' may shew that siinjile coiitraet debts
bve heeii tirst paid, under the replieatinii of
assets ill hand when action bii night, and need
ii"t ni'ly specially. Fi>r<<iith v. JuIhiMdu, 'J". T.
34 4 Vict.
licciaration against defendant, as execntfix of
McK., iiaaii award iiiado in pnrsuaiiee of a bond
eiecutoil hy him in his lifetime, to refer certain
(litfd'eiiees toarhitration and abide by the award ;
avcrmciit, tlnit the award had been made in the
liietiiiie Iif the deceased ; breach, that deceased
bl imt ill his lifetime, nor had defendant, as
such executrix since his death, paid the sum
aw.inltil. I'lea, that by covenant in a deed
Mile by said .McK. in his lifetime, he had in-
curml a specialty debt to (nie H., which was
ovtnlue, and defendant, as executrix, was bound
tti ilisciiarge it in preference to plaintitr's debt :
-Hclil, mi ileiiiiirrer, plea bad, for the action
TO on a specialty, and an executrix could not
pltail ail mitstanding debt of the same degree
to ,111 action for another debt of eipial degree.
M<dkm\: MrKbinoit, 10 C. P. 14'2.
Since the 29 Vict. c. 28, s. 28, aboli-shing all
distinction between the dill'erent classes of debts
in the aihniiiistration of an estate, it is no de-
fence for an executor sued on a promissory note
of his testator, that there are specialty debts
unpaid mure than equal to the goods not admiu-
istereil. Pummn v. Guodimj, 33 Q. B. 4S)!).
Where certain creditors of a deceased insol-
vent sut'il his executor, recovered judgments,
lU'l SDJil his real estate, and got paiil in full : —
Helil, that they were still bound to account, and
that the other creditors were entitled to have
the whole estate distributed pro rata, under the
Aet 2!l Viet. c. 28, h. 2.S. Th.' U.ii.l „/' ItrUhh
.\'iiill( Aiii' ricd V. Miilliiii/, ITChy. 1(12.
Hy the statute 21) \'iet. o. 2S, s. 2.S, the as.set.H
of a deceased dilitor, in case of delieiein v, are
to be distributed aniniigst his several creditors
paii jiassu, and without any priority over each
other ; and wlieie the executrix in siieli a caso
allowed jiidginent to be reioVered by two credi-
tors, and exeiiitioii tn be is-in-d, under which
they Were paid iicirly in full, u hen by applying
to the eoiirt in that jiition, the proper distribu-
tion of the estal would iiave been ordered, the
court charged her, in favour of tlie other credi-
tors of the estate, with the excess beyond the
rat.iblc pioiiortion of the eliim due the exeeii-
tioii ci'cditors ; giving ;ni order over in favmir of
the executrix against those crediturs, who were
ordered to ]iay to the other parties to the suit
all the costs, other th.in those of jiroving their
el'iim at the amount .illowed liy the court, ,iiid
to this extent thay were held entitled to rcrnver
their costs. Tm/liir \\ ///'oi/i'', 21 Chv.'KlT.
.S. administered to tlie est.ite of an insolvent,
at the reipiest of a sim]ile contract creditor, and
was on the following d.iy servi'd by the latter
with a summons for his debt, lie took no steps
to iv.scertain whether tliere We're any other delits,
but allowed jildgnient by default, and all the
chattel property of tlie intestate to be sold under
the exeeiitiou : Held, at the suit of a specialty
creditor, that the adininistrator could not stjt up
the defence of no notice of the sjiecialty debt,
and that the anioiint produced by the sale
must be applied in due course of adniinistration,
llitti-liiiison V. Eiliii'i.tiiii, II I'liy. 477.
A surety for an administrator, deceased, who
was indebted to tlui est;ite, on judgment being
recovered against him paid the amount, and took
an n.ssignmeiit of the administration bond to a
trustee for hiniself. (,)u;ere. whether the debt
to the surety was a specialty or a simple contract
debt. /" ri' Whilli nmri', Rum v. Mukoii, 2 Chy.
C'hamb. 17. — Mowat.
lu case of a debtor dying leaving insiitlicient
assets to pay all his debts, execution creditors
whose writs are in the siierill's li.ands do not lose
their jiriority ; nor does a creditor who has a
seipiestration in the hands of tlie sei(uestrators
lose the advantage of it. .l/c/i rs v. Jlry /•■■i, 19
Chy. IS.').
Soe ('iiiin)i''rriifl limik ni' CiuiU'ln v. ]Voiidniff
ft <il., 13 C. P. 1)21, p. 1487.
<i. I)ir<i.'tt(t»!t.
The court allowed a judgment on a sci. fa.
against an administrator tn be amended in the
name of the intestate, by making it correspond
with the original judgment against him. On a
return of devastavit a ca. sa. does not issue as a
matter of course, without empiiry. WUhird v.
nuolco/l, J)ra.,2()l.
In an action of debt against an administrator
to make him personally liable upon a judgment
recovered by default against the goods of the
intest.ate, alleging waste : — Held, that the record
of the judgment in the first action and the writ
of ti. fa, thereon, and the sheriff's return of
nulla bona, were sufficient prinifV facie evidence
to shew a devastavit, and that the production
by defendant of writs of ti. fa. against the intes-
? (■ • w (T
11S7
EXF/'ITTORS AND AOMFMHTRATOHS.
tiitfV giiiwN, with the slu'iilV's ri'tiirti ut' fni
tli(!iiM>ii, uithniit prciv iiig tlic jiidgnKtitH on w hie li
they wi'ic t'(iiiii(Ui(l, uii« Hut Miithiii'iit fviiU'iict!
ti) HhfW tliiit thi' iiitcMtiito's L'Htiiti! hail hi'fii
cxhiiUNtcil. W'i/^iiii V, Aiiilnti', HV. 1'. 'I'.'H.
I'hiiiititl' hiiil Hiiril ih'fciiclant a.s niliiiiiiiHtivitcir
Ulicill 11 s|if(iiil iigliM'liiclit )iy tfstlltnr to tllkr
care (pf ami ru (h'livcr i iTtairi w licat, alii'giiig in
iliU'cii'iit I'liiintH a |iiiiniiHi' anil lucich hy tcstatm'
ami lU^IVnclaiit i(M|ici'ti\cly. hcfiiiilant Hullrrtil
jnilgnicnt liy ilctanlt an td lln^ hccuiiiI count, and
aftiTwarils runt'csmd jniluiniiit aw to tlii' liint.
In an actioinif ililit <iiithc judgnn'nt, MiigHi'Hting
udf\ astavit : Held, that tlic adniiMMioii ot' aMHi't.-i
atloriicd liy tlir |ilcadin:,'H conld not lu^ rilmttcd
liy Hht'winji that when thf original jiidgnicnt was
roi'ovuird tiic'lr «('ri' asmts tosatiHty it, lint that
afti rwaiilH, a sale licing foictMl, they jiiovod in-
Kiitlicicnt. Wii/fiiK V. Aiiili-iir, 14 i^t.' li. ,"i!l4.
This action was hioiight to contest thi' validity
of a judgment hy the liank of I'lipei- Canada
a','ainst deri'iidaiits, executors of Z., on a confes- '
NHin for L''_'I7,'!;{7 i's., the plaintill's contending
that tlu^ judgment was recovered in fi'aml of,
them and other < reditors. It ajijicared in evi-
(lem<^ that nearly half of the judgment was for
a del)t due liy Z. to the liank ; the remainder!
was for delits of Z. assumed and Jiaid hy tho
hank at det'eiidants' rei|Uest, and for the advaiu'e
of S'()0,(KMI to def(Miilants, toeliahle them to e<im-
lilete the Sarnia hrancii of the (Jreiit Western
HaiJM.ay ; - Held, that the deht on which this
judgment was olitained was not unjust or illegal,
it heing clear that executors may ]iay a deht of
e(|ual ilegrce, in jirefcrenee to another of the
aanu! degree, or .allow or confess judgment to one
creditor in iirefen nee to another. It apjieared
also that defendants, heing trustees of the real
estate, a.s well as his executors, had allowed out
of the jiiTsonalty of Z. to his \\ iilow, .':?liO,000,
to ohtain a release of her right to dower in his,
Z.'s lands. The \ilaintiti's t:ontended that uncler
tho i.ssue of " jilene administiavit vol non,"they
Were entitled to judgment to this anioinit ; -
Held, that the ajiplieation of the persomvlty to
ohtain a release of dower in land was a devas-
tavit, and a misaiiplicatioa of tiie money, of
■which the Hank of I'pjier t'anada, heing inter-
ested in the estate, had the right to complain.
This amount, however, was afterwards, and he-
fore the commencement of this suit, made good
to tho hank out of the proceeds of the sale of
lands, lender these facts, Hold, that tho ver-
dict should ho entered for defendants, and the
plaiiitills were allowed to take judgment of as-
sets (piando. 77/e C'liinnii'iridl liuuk of Vioiiulu
V. Wvailnif ,/ It/., VA ('. 1'. (il'l.
Held, that under the pleadings set out in this
ca.se, the plaintitl' did not dispute defendants'
right to keep the .C4,()(X) nienticmeil to be applied
on the Hank of Upper Canada judgment, but
complained that defemhuits had not otherwise
fully adniinistere<l ; and the eoniplaint being the
settlement of Mrs. Z.'s dower, which was decided
in defendants' favour in the Commercial Bank t:
WoodrufF et al., 13 C. V. (521, that defendanta
were entitled to judgment. Hamiltonx. Wood-
ruff et al., 14 C. P. 22.
th<
' ""It,
large.l the executor with tlmeontd nf Hm,
an<l with interest on the halauccH tr(,ii| tim,. .
time in his hands, anil directed tlie an nft'il '
taken with annual rests. AV.s/;,,, y (■„,,'! n
I Chy. ruO. ' ''"'"•
]\y MX agreement cnt.'red into inUvnn th
executors ot an estate in Lower ( '.iii.nl.i ;ii„| tL
residuary legati'es, tlu' former iii;riTi| t,i „.ttl"
a iiarticnlar legacy, and indcnMiit^ the rv.\Lm
legatees from it. According I 'I ■ ■'
I'oiintry inti'rcst is not recover,
until suit brought therefor w itlmiit' an lAi.n..
4. For Interest.
In a suit against an executor for an account,
the court, under the special circumstances,
resii
and afterwards
IllelllH., „| that
I'' lll""lu!i'j..;,oy
, , , 'It an I'xiiri'.j
'!'''' ti''''>'«''t;'''':»'f''nvdtuiuu.,yW,i
here for th,. legacy, .•jllegmg an ex,,ri..,„ ,;„„„„
liy lioth exi'cutiirs and resuhuiry Icyateis tuiav
sucii interest, in which iictiou tL exn-utni,
di^nicd such promise, /ind gut a verdict, Imtthe
' 'uary legiltecs .alluweil judxiiient l,y ,|,f,,|,lt
bill intili...ri,|Mt'tiii„iii|„j
the execnturs tu uidiiuiufy tiini] ;i^aiii,t tlin
liability they had incurred. The cumt, n\\,y
the circumstances, dismissed the liilj Hit'lu'iiiit«
peal, « Chy. 220. '
An executor or trust<'c who has hcin ^niltvui
negligence merely, in umittiugto ilnc.-t hmni'v*
will be charged with interest .'it .ii\ ,»;■ ..'ut
Wiiird V. (.■ahh; 8 Chy. 4,-)8. '
■Where an executor had cuMimitted a liivaihi.f
trust in .selling lands to pay delits, I'l.r wliiol, tin.
licrsonal estate come tu his h;iiii|s li.-ul i,v„vi.,l
more than sullicii'iit, and had .lisu ,iiiii!ii-,l trust
funds to his own use ; the mnrt nnliMVil tlio
acouunt to be taken against him with annual
rests. .'/(.
The
I iR^ principle u|)iiii wlncli an
lould lie charged w itii interest m
iiiiiiiistntiir
M fllluls lu'lnli:
ing to the estate considered and actiil lui. .1/".
lAHiinn V. Iliwtiril, Itchy. ITS.
An administr.-itorde bonis uon living nlit.iinoil I
a decree against the rcpri'seutativcs uf ailmiiMil
administrator for an account of his ilealin^swith
tho estate ; — Held, that he was eiititluil tudiiiive j
the representatives w ith iiitere.-<t, kc, in tho
same manner, and to tho same t^xtciit, as luic of 1
the next of kin might have done. ///.
Although the court will order exeoiitnw nr
trustees t<i make good moneys lust liy m'i,'lei.'t nr I
default, it will not also ciiarge them \vitli iiiteri>t |
on those sums. VnH.^tun \. ThmiiiiMnii, \0('\\\:
542.
Where part of the money of tlic estate li.nl
been loaned by the executors to tliciiisch cs, tiny
were charged with a higher rate of inteivst tliire-
on than six per cent. .Smitli v. h'm , 1 1 Chy. 311.
Leave to appeal from a I'epurt was refiLsiill
with costs, where it appeared that the nhjectotj
the appeal was to tix oxecuturs with 'iiterest j
upon a sum which thoy had investeil, and uiwaj
which a loss occurred. Contis v. Mf(!hi<hiii, 2]
Chy. Chanib. 218.— Spraggo.
The widow of an intestate married .'ij;:iin, ,iiidj
allowed her husband to use tho inunevs ul thai
estate in her hands : — Held, that she wa.s liaUsI
to pay interest at six per cent. only. FiMa-\:
O'llarci, 14 Chy. 22.3.
Execntors and trustees may be eliarged with!
interest as well as principal in resjieot of sunul
lost through their misconduct, though the [mi
\m
tllC ri.it- nf tllr.llit,
»llUlr,s in.lii tllUf to
'tf'l tllc aii'iilllit tiiUj
AV.Uiii. V. ('ii)i./.'»l/
•il into lirtwi'fii tho
iiWiT t';in.'iiU ;iiiil tin;
HUT iimml tn wttl,:
IrtliliitS till' ri'»iil\i;iry
IK to tllr luH.s nf that
Vi'f.llilr mioll :i lijiiwy
r \\ itiioiit ail I'xproi
I'ffiivil to li.niii^ Mifl
llj; ail tAliri'SB lilnlMl..;
iiliiary li'j^atrcs t» jMy
ai'lioii till' vxiiiiti'is
got a vci'ilift, LiittW
I iuil;;iiU'Ut liy ■li.i'.iult,
ill tlliMi'Ult tiinilllli.l
lil'y tliilii aj;:iiiist tli"
•A. 'I'ln' court, uii.liT
Nl'll till' llili Witll rufl'.
y. ."ilH, allilliu'il nil a|r
wlio has lircii ;;uiUyHl
ttiiig to iiivi'i-t iii'Muy-,
tci'iftt at ."ix iiiT wilt.
iriS.
1 1'oiiiniittcil a liiv;\i!i "t
>ay ili'lits, I'ov wliii'li the
his liaiiils liail iii'MViil
I hail also .■iiiiilicil trust
the I'oiirt onli'ivil tht
aiiist him with iiiiiuul
.vhich
iiiti'i't'st oil I'liii'ls ln'huL
i'imI anil aitiil mi. .'/'■
Ill aihuiiii-trUnr
' ill.
IV.
:s.
I^^y KXHClToItS ANIJ
■ 1 ... e It... I 1...L .. 1... 1 : I
AI>.MINISTI{.\T(>|{S.
II DO
mis noil having iilitiiui'il 1
.'si'iitativis of aik'i-Ta.H'il
unit of his iloaliiigswitk
10 was ciititlfil tiiihiii'ge
h inttR'st, &c., in tlii) i
.saiiio cxtL'iit, as uncut
ivo ilolio. II'.
will Ol'lll'l- l^Xl'c'llt'il'* 'T 1
uiuys lii>it hy m'gK'ct "F
argu thoni witii iiitiTiM
V. Thow]""'!!, lOI-'liy.
loucy <'f the ostato liad I
tors" to thiunsi'tvcs, they]
iL'i'ratfof iiiti'R'st there-
,i//M-. /i'.",n<V.;ui.
11 ;v ivport was refii*'lj
loaivil thattla'ulijeotntj
executors with 'nterest 1
hadinvcstfil, :imliil"«j
Coatis V. M(ah<li""<'-\
fitivto marvifil again, .indj
use tho nii.ncys ut tliej
Lhl, that she wa.s iiiil'l-
Ir cunt. only. t'l'M-'^
_,, may he chargciUithl
lipal in resrect f 5"'"»|
Vuluct, though the imn^
I ,,,,[ \yitli tli.it aiiioiiiit, mill with iiiti'ii'st
fr!'m till' tiiii'' of the iipiiri/i'iiiciit in Is." ; tho
1j,w,. iif time not lieili^ enilsiilercil .siillieielll to
lartlioriglit to interest. ''»,//„_// v. l'icli„i/, •_'!
I'hv, IM.
"■,11,111 y. ■VrMiil'iii, -Jl Ciiv. :iil<.t, p.
V. T< rnil>, rni, I'JCliy. •.'•-'1, p. Il!»7.
See .l/i'.l/;//.l
USOl W.li"
!). For ' '".i/i.
Kxcoiitursenijiloyiiij,' nil attorney, are persoii-
jllyre.'iliuiisilitc to iiiiii for the costs. I>irt-<iin i.l
„(v,tVwfo ''"/■. 'M' 'i'. 4 Viet.
Kieeiitnr.i will he onlcreil iiersoinilly to reimy
ciistsiuiil to tlieiii or their solicitor under a tle-
crtc «hich is afterwanls reversed. Ditrhhon v.
nMl, I C'hy- -'84.
Where executors had iiniirniierly dealt with a
wirtifinof ♦''!' fuiitlf of till' ('State, liy iilliiwiiig|
OM 1 I lUiiilier to retain it in his ii.'nids at
iliiw rate of interest, the court refused tlie'r
Mts Jiriur to decree. Axhh'iiKjh v. A.-ilihnnijIi,
iOl'by.433.
Cuts given to iilaintilV under siieeial eireuni-
stMCes, ni)twitlistandiny fraud, was charged
I ijpiinst executors, which was not establishod. ll>.
Where the executors, hy lU'gleetiiig to pre-
I [ure accounts or atl'ord iiifonuatioii reasoiialdy
alleil for hy the legatees, had given rise to the
rait, they Were charged with the general costs
[ thereof, less certain costs oeeasioiied hy uiifimiid-
eil claims set uii hy the hill. Siiiilli v. lio,', 11
|tliy.311.
Inlitigiiting with third jieraoiis, exeoutor.s arc,
I with respect to costs, in the same iiiwitiriii as
Mrties whu litigate in their own right. Uirat
\\ukrnH. ir. t'o. V. Joms, 13 I 'by. S').").
Wliere an executrix ainioaled against the luas-
I ter'a report, and the appeal was allowed witiiout
:— Held, that she could not, on further
I directions, claim the costs of the appeal out of
I tie estate. Stivnj v. Dunh>i>, 13 Chy. 375.
Where an administrator brought an imfounded
iKtion against the testator's widow, which she
I WIS put to costs in defending : — Held, that her
I only remedy for such costs was against the ad-
I ministrator personally, not against the estate.
M,im\: Rmijm, 13 Chy. 457.
Where a bill was tiled against an executor and
Itrastecforthe ailniiiiistratiou of an estate, and
jprayiug a receiver on the ground of the execu-
I tor having become embarrassed, and of his mis-
Iconiliict, and the circumstances were such as to
jjnstity alarm on the part of the cestui ipie trust,
94
the executor was eh.irgeil with mo niiieh of the
uoHtn of the suit Up to the hearing as was oeea-
Hionc'd by the suit neing for a receiver, lii\iil v,
T/iiiiii/miDi, 17 Chy. 154.
.Sue, AV.i/(i)i.' v. ('<tmiMI, 1 Chy. 570, p. UHS.
Sue, also, III. 1, (I.) p. 1473.
Where ill assuniiisit on a eontraet against
executors they pleaded that the cause of action
accrued in Scotland, against their testator iind
one A. jointly : that A. w.is still living, anil that
by the law of Scotland where the eontraet wiw
iiiade, if one of the p.iities to a joint eoiitrat't
die, his personal representatives are discharged,
the plea wa.H held bad on a general deiiiiirrer,
as by our statute I \'ict. e. 7, the l.iw here is
ililieieiit, and the lex loci eontraetus a|>plies
only to the contract, not to the ri'iiiedy. Uilntni'i:
V. t'niiih, II. T. (■> \'iet.
The executors of suieties are liable for the
defalcation of the )iriiicipal, cniiiiiiitted after tho
death of their testator, and e\eii after notice
that tliev would not be li.ible. lu'iiiin v. I.n iti-
imj, 7 Q. I! '•<"'
Held, that .' Miigh the ;idiiiiiiistr,itrix was
not bound 111 suli the goodwill of testator's busi-
ness aaaHurj;e ill ind physician, yet, having doiio
so, the prc'i'uds w -re assets, !' wliiili she must
aeciumt i'hriutit' v. Clm:' '2] <J. I'l. '.'1 ; S. C,
1(5 U. r. o44.
In a suit fill Me partition of the re.il estate ol
an inti'stato, '< Im \ias one of the exeeiitois of his
father's will auit had taken posse'ssioii of the
pi^rsonal estate, and who died ;i niinor, it was
elainied on behalf . . i'lfant legatees, who had not
bei'ii paid their legacies, that ; .i 'U'ciuint should
be taken of the personal ('state coiiie ti, .he h.m Is
of such executor, and that their shares tlieiv >f
might be charged uiion the land in iiiustion
before [lartition :--llehl, that the executor having
been a minor, his i .state was not liable to account
therefor. Xasli v. MrKnit. 15 Chy. •_'47.
Where an executor alleged that he hail kept
money belonging to the estati; for sever.il years
in his house, until the same was destroyed b\
tire and the money lost, the court held tin;
executor guilty of a breach of trust, and his
atlidavit as to the destruction being unsatisfac-
tory, refused to discharge him from custody
under a writ of arrest. Jjdir.-oin v. t'rook''</iiiid;
'2 Chy. Chainb. 42(i.--Mowat.
A mortgagee appointed the mortgagor one of
his executors ; and the mortgagor became the
acting executor. The mortgagor afterwards
agreed with B., the owner of other property,
for an exchange free from encumbrances, and
that B. should pay .'?'2,000 for tho dill'crcnce in
value. The mortgagor had endorsed on the
mortgage certain sums as paid by him theremi
after the mortgagee's death, reducing thereby
the amount ^.ppearing to be due on the mort-
gage to §1,600, no part of which, however, was
oayable. B. satisfied the §1,(100, partly in money
paid to the mortgagor, partly l)y a debt owing
to B. by the mortgagor, and partly by moneys
which had theretofore been lent by B. for tho
purposes of the mortgagee's estate, and the mort-
gagor thereupon indorsed on tho mortgage a re-
1491
EXECUTORS AND ADMINISTRATORS.
U'J2
ceii)t fur 81,<>00 in full. Tlio ccmtomiioraiicmis
jiayiiiuut (if iniiuey Avas Avitli the assent of tho
(itliLT uXL'L'Utdr. It afttTwarilHapiioareil tliiit the
iiioi-tgaj^nf was largi'ly iiidehted to the mortga-
gee's ei tate at theilatu of all tliese transaetioiis :
— Jlelil, that tho coiiteiniioranedus iiaynien! vas
a valid payment jn'o tanto, the same ha\ Ing
been ma<lo with the a>ist;nt of the co-exeeutor ;
hut ' !iat the oHtate or the; eo-exeeutor was 'lot
bouim by the reeeii>ta endorsuil on the nifirtgnge ;
anil tliat 15. w.is not entitled to credit, as against
the estate, for the jirivate debt due to him
by the mortgagor, noi' for liia antecedent loan.
liaciiH V. Shiir, Ui Cliv. 48.").
The title of an administrator
'r relates lia^k t
I the death of thi; inte.Ktate, so as t(i cii,! I. i '
i. 1 111 1 . '-11,11)10 lilin
j to rejili'vy goods taken before tliu mnt „[ ,
; ministration. Dial v. I'ntii ,•, -Ji; Q. |j 5-j.
I The peisonal representative niay liKaliill „
j cmlitor ,sii,ii,hi, upon the testator.; istiiU. m Jl,
. a devisee of hauls under tlie wil'
VI. Actions and Suits by.
1. P/mi/iiii/.
Where one of tliree executors is dead, and the
survivors sue in right of the testator, the decla-
ration must state that payment had not been
made to the deceased executor. S^ichall tt al.
V. U'iinaiiu^, Tay. 21.
I'laintiff in his deelaratiim described himself
administrator, &c. , and laid causes of action accru-
ing to him, administrator as aforesaid. Defen-
dant j)leaded ne umiues administrator : — Held,
bad, on general denuirrer. There was no profert
of letters of administration. Walker v. Curerf,
5 O. S. 58,
AVhei'e a plaintiff sues in a representative
character, the cause of action nuist be stated to
have accrued to him as such. Ham v. Jhaliltii,
5 0. S. 7'2!».
A bill tiled by A. and B. as executors of a
<leceased mortgagee to foreclose, did not iillege
that probate had issued to them : — Held, defec-
tive on denuirrer, Laimnvc \. lliimphrks, 11
Chy. '209.
A bill tiled by an administrator to obtain pos-
session of certain chattels outstanding in the
hands of a third party, and for administration of
the estate : — Held, nniltifarious, lioth as against
such third party and the persons interested in
the estate, t'o/t- v. Uhirir, 1(5 Chy. 392.
2. Other Cases.
Oil a bond given to executors, they may sue
either as executors or in their ow'U right. Vavis
V. Uaris, o O. 8. 551.
AVhere money has been paid by a testator on
an agreement for the jiurchase of lands, which
the vendor has failed to complete, it may be re-
covered back by the executors, as money had
and received to the use of the testator. Junes
V. Broiai, a O. S. (I(i5.
To determine whether a demand sued for on
the record is one claimed by the plaintiffs as
executors or not, the test now is, would the
money when recovered be assets of the estate.
Elliott et al. V. Vraker, 8 il B. 15().
All action can be maintained by two or more
executors for the goods of a testator where pro-
bate is only issued to one, or goods taken out t)f
the possession of one of them, possession of one
being iiossession of all. Jiri/ce el al. v. lieattie,
12 C. P. 409.
, altn' tin iitr
sonal estate is exhausted, and (ilitaiii ,1,1,
an ordinary creditor. Tiilaiiii
Chy. 158. ■'
In a suit by an administrntnr, wit], t),,. nJU
annexed, upon a iiiortgap', the .li-u.n.laiit i.i„. I
'" i
the
duced a release for the iiiorti;;!-.' iiinufv (.jV^,
by the testator in his lifttiunC TlimMii'jun tL
plaintitl' sought to be allowed to pnie'iHid aijaiiist
defendant as a creditor ot tlic estate, liiit k tlii«
would involve an
, 'ut as this
imeiidiuent ereatii,;,. au.i,.
tirely ilitlercnt record, the eourt reui.si-4 it
liitrretl v. t'ro.tthwaite, 9 (In. 4'J'_>.
VII. Actions and 1'1!o(|;koini;s Ai;.u,\vr.
1. Pit;,!],,,,.
A plea thatdefcnd'ints. cxecutdi-sasafdrtsaM
submitted to arbitration, does imt inijilv tliitl
tiiey submitted as executors. Jib.br v. .l/vrj
et al., Tay. 285.
An executor is esto}ipeil from pleailing [ilt„J
administravit to a ilcelaration on a .sci. fa. tal
revive a judgment ag;iiiist liiiii.Nelf. 11 wi v.*
Leemiiiijel al., 2 O. S. 508.
In the concludiii','part(if a derjaration against
executors, it was averred " theri'lere an aotini
hath accrued to the liliiiiitiirtiMleniaiiilandliava^
of and from the defendants, i./vh^/j-.v atmvsaii
&c. " I )emurrei-, on the ground tliat the avurimiiH
should have been "to (leiiiaiid and liave iil aiiif
from the defendants, c.v executors:"- Held, ilwlaj
ration good. Ferrie v. Jmus 1 1 al., 5 (^1. li. M.
Assumjisit against an executrix. I'lea, iikid
administrativit. Asset.s were aihuitted tn
amount less than the claim. It was i)niv((l tlad
testator had joined one M. in giviiij,' a iwttlon
the price <if a carding maeliiue, wliieli M. wa
to hand ivcr to him in <jrder to save liim hanuJ
less. This was not <lone, but alter testatur'^
death defendant got the iiiaehiiie I'rniii M.
hold as security against the note. It was als
proved that there were crops in tliegnniinia
the testator's death :--lleld, I. That the veniidl
should be oiilj'for the value of tlie asset.', iirnvtil,
and not for the amount of tlie debt; '2
the carding machine would not tonii assets;!
That the crops would lie a.sscts, in thealiseiiafl
€any evidence as to the contents ef the will
Finlter et al. v True man it »./., 10 Q. B. till.
The rulemaking the plea of iKin-assuiiiiisit t
a bill or note bad, is couliued to cases where tb
action is lietireeii tlie purtie.t tii tlie hill oniiiti'\\
does not extend to executors, &e. MiwunX
Hdletal., 5Q. I?. (iO.
The plaintiff sued defendants .is executors (
the endorser of a note not cinne due till alter toj
decease of the testator, averring due iKitioet
(lefendanta of dishonour, and that liy rcas
thereof they became liable to pay the imto, aDJ
being so liable, afterwards, as e.Yieiiters, •
niised to pay on recjuest. A pic v denying tBj
promise was held bad, as raising an immaten
U'J2
tvatnr vt/latt's lnu'k t^i
:, sii !i.-i tu fiuililf him
jforu tlio grant (if ml.
Ih r, '2i\ Q. IV r.T.S.
itivi; may lili'aliiU ii..,i
,i.!i<tatnr\ I'state aj;aiiist
,hu will, altir tliu inr-
luiil iilitaiii a (k'tvuf M
Tifniiii V. T'jaiiii, 1)
iiistrator, witli tlw will
,gt', tUf lU'fcuilaiit vi'ii-
iiKil'ti^aui' UKiiicy givi'ii i
I'tiuK'. Tl]i.'Vi.'iiiinn tk
)WL'(1 to pnn'iril against
it' the estati.'. Imt as this
uliiK'nt nvatiiig an iii- 1
tin; (.■iiurt rtiustil it.]
I (.hy. 4-Ji'.
ItiMKKhlNilH AGAINST,
ts, cxeL'utorsasafoi'usaiil, |
in, iliiL'S not iniiily tlntj
utor.i. Jlli'kii-\: .l/i/M'j|
|h;iI from iiloailing jikiiaj
■laj-alioii nil a sui. fa. tol
aiiist liiiii>L'lf. Il'wl v.l
:m.
vtdf 11 ilcularatiim against
i-f(l " tliiTffiirc an adinal
aiiitilV tiMlciiiaml anil liavel
ilaiils, ( .rrriil,,rs atdl'usii'lJ
.gnmnil that the avLTiiKiiH
ilLiiimiil ami have iii ami
I'xoinitiii's:"' lliM.ilrtlil
J,„MS.^(/.,r.g. U.504.
|iu i.'Xui.'utriN. ilea, iiWiiej
■tA wi'VL' ailinittiil tu
laiiii. It \va> imivcil tlial
M. in giving a notcioj
machine, wliieli M- war
iii'dei- to save liini lwnii|
lloiio, liut after test,at"r'(
tho niaehine fmni M.^
,t the note. It was f
■ro eroiis in the gmiiiia al
.Ichl, 1. That the venlid
lvalue of the assets proved
nt of the aelit;i 1 ;
|,mhl not tovm assets;^
,,^ assets, intheahseuaj
he eontcnts ul the wiD
[,nlu.r., log. B. 111,.
ilua of noii-assMmii5it|
Imlinea to oases where tll<
Ixeeutors, &e. M"^''"'
\VJi
EXECUTORS AND ADMINISTRATE US.
M'Jt
iifen.lauts ns cxeoutovs
liiotuonie due till alter to
Ir, averriiife' ilue net.ooJ
|n,r, an.l that hy r^ivs
liiihletovaythenote.aB
Ivanls, as e;»eeutor8, pf
lest. A l.lcwlenym^'«
, as raising
;ui imuiaten
. . j],^. iivoinisu being imiilieil from tho facts
'*^ ' ) ill the (luclaratii)ii and not dunictl in the
[fct I''-
Wliere in an action against dofondaut. as
iMit'ir on a judgment recovered against the
I -titiir'the jikas wore, that testator did not
wiiuise! and, I'-c mKinos exeentor, and jndgment
< entered on the first issue only, taknigno
,ii'f of tin- second : — Ifeld, that althongh du-
j^Jj;|!,i,t's ijleading the first plea wouhl entitle
I ill . iilaiiititf to succeed on the second, yet the
j(u' sliouM have been disposed of ; and that the
nl'iaent, therefore, ■\vould not supiiort an exe-
ai'ti'iu against del'eiidaiit as executor. SlrDadi:
ltyi;mii'ii-\: Diijiii', 1.') t^. B. ;J8().
IKelaratioii on tho eonmion emmts for goods
Inr'iiiietl :""1 sold to intestate ; and for money
liif fcir anil account stated with, defendant as
IsilniiiiWVatrix. I'lea, that after plaintiff's claim
Ibearae (hie .and before action plaintiff was in-
Lthtc'l toS. M. (t < 1., executors of H. G, in §800,
I I jt was then agreed between plaiutitf and
lintcsUte, in his lifetime, and said executors, that
Inlaiiititl' shonlil l)e credited in his account with
laiiloKoutors witli SSDO, and be allowed same
llvtliein M if paid them by plaintiff, and that
I tit intestate should become and be accepted by
Ib;.1 cxeeiitors as their d>;!>tor for the amount of
lavKlaim in lieu of plaintiff, and that jdaintitT's
lelaim a.'aiust the intestate in respect of the last
IbiihiI sum should be di.- charged and satisfied;
liniliiiliiirsnauee of said agreement plaintiff was
liii'cmhteil, and said intestate became and was;
i.tfil hy said executiu's as their debtor ; and
Iplaiiitilf tlieu accepted said agreement, and its
|Kriiirm:iiiee as aforesaid, in satisfaction and dis-
|<lurse of lus claim : — Hehl, plea bad, because
•sin" to answer the whole declaration it
nlvaiiswereil part, and because wholly inappli-
la'iltt'i the eausosof action against theadminis-
Itatrix. ll'o'/(/'// V. Ulhl,,-4i<:ri; IG G. P. 505.
Dtclir.ation against defendant as executrix of
HcK. I'll an award made in pursuance of a sub-
tisiiiii liy hond. I'lea, a debt overdue on cove-
utliv Melv. :— Held, plea bad ; for this action
■ni "II a s[ieeialty, and an executor could not
|lail an outstauiliiig debt of the same degree.
^(Cii//ri«iv. J/cA';//Hi»;/, IGC. P. 14-J.
; lyaration mi a contract by testator to build
imriiie holler and strain engine for plaiutitf,
llcjiiug [lartial enmpletion by testator before his
Ifcitli, ami a iiroiuise by defendants as executors
scMiileto it for the lialance due, but that they
lil lint eiiiii[ilete 'it in time, and delivered it
iiiislieil ami not according to the specifications,
:-llelil, (leelaiati(m not bad for averring a
niiiiise liy testator to perform the work, and
littrwarils hy defendants, as executors, to finish
«ame, testator having died before the time
tciimpletion expired. Leonard v. Sorthey, 22
;.p. U.
I The ileclaratioii alleged that one S., by his
LapiKiintcddoieudant his executor; and after
[triiiiig liis farm, directed his remaining real
pe to he sold and the proceeds thereof and
I mmiey and no':es to be e(pially divided be-
aten his three sons, of whom piaiutiff and de-
Biknt were two ; that defeiulaiit proved the
"11 anil heeaiue puisessed of aaaeta more than
fatto pay plaintiff's claim luuler the will,
iproiierly applicable to the payment thereof,
atterrards promised and agreed with the
plaintiff that the jdaiiitilf was entitled to receive
from him 5(500. and stated that sum as the plaiii-
tilf's claim under the will ; and thereupon, in
consideration of the i)remises, defendant pro-
mised the plaintiff to pay, and the plaintitl' agrited
to accept the said sum of .SodO as and for his
claim. Defendant iileaded that lie did not be-
come pos.sessed of .assets, and tint he did not
promise ; and tiie jury found in bis favour on the
first plea: — Held, 1, that the |ilaintiff's idaim
was not a " purely money deiiiaiid,' towliidi his
right was an eipiitabh; one only, under sec. 2 of
the Admiuistratiiui of .liistice .\ct, I87.'5 ; and if
it were, that that section, which did not take
effect till 1st January, 1874, wMiihl not apply to
this action begun on the 1 Itii December, IST.'i ; 2.
That the allegation of del'eiidaut having assets,
was material, and the verdict on the first plea
was therefore a bar to idaintiff's recovery ; 3.
That the possession of such assets was put in
issue l)y the denial of the proiaise as alleged, —
i. e. , of the promise having been made in con-
sideration of the premises. Seinble, under the
facts stated in the case, that the count should
have avt^rred a tendev of a release, or a readiness
and willingness to execute it. ■SouU'-'i v. Sijult's,
35 il n. 334.
2. Other Ca.v'i.
Where a plaintiff had recovered a verdict
against execut(U's, for a breach of pnunise o£
marriage made by their testator, tho court would
not on the ground that sucli an action could not
lie against personal re]iresentatives, arrest the
judgment. Ddri/ v. Mi/er-f, Tay. 80,
Whore husband and wife executrix are sued,
service of process on the husband only is sutli-
ciout, as well as in other cases. SJidtcr ct al. v.
Marsh vt iix., Tay. 172.
After a sheriff 's death, his [lersonal represen-
tatives cannot be joined with his sureties, in an
action on the covenaiit given liy the sureties .iiiil
the sheriff, under 3 Will. IV. c. S, fiu'a default
by the sheriff in his lifetime, li'iuli'in v. J/ani-
illuii, H. T. 3 Vict.
An action for mesne profits maybe maintained
against an executrix under 7 Will. IV. c. 3 ; and
where the action is founded on the judgnient
against the casual ejector in ejectment, it is no
ground of defence that altiiough the writ of jios-
session is tested in the tenant's lifetime, it was
issued aiul executed :i(U'.r his death without a
sci. fa. Grciii \ . Ilamlltnx, H. T. 3 X'iet.
An account stated l)y an executor of a debt
due by his testator never before ascertained or
determined, is sufficient to eii;>.rge the executor
as a suijstantive debt, without any express pro-
mise to pay. ]VatkiiiH\. Wiishlnini, 2 Q. li. 291.
When a piaiutiff sues two or more defendants
as executors, the entering a nolle prose(iui and
discontinuing «•* to one, is not a discontinuance
of the action. J/fW.iti/i v. /Jill at at., 5 Q. 15. (iO.
The testator, having been appointed by the
finance committee of the district c(juncil to col-
lect wild land tax : — Held, that his representa-
tives were liable to the council for money received
by their authority and not paid over. The
Municipal Council of Lincoln, Wetland, and Hal-
diniand v. Thonqmun vt al., 8 Q, B. G15.
wwww
149.")
EXECUTORS AND ADMINISTRATORS.
1458
On .a plea of ne unques executors by two, the
plaiiitilf may have a verdict .against one only.
J'Ac L'tirl of Ehjbi v. Slonwjii et al., 10 Q. B. 289.
Assumpsit against an executrix. I'lea, plene
ailniinistravit. Assets were admitted to an
amount less than the claim. It was proved that,
the testator had joined one M. in giving a note
for the price of a carding niachino, which M.
was to hand over to him in order to save him
harnilos.s. This was not done, Imt after the
testator's death defendant got the machine from
M. to holil as security against the note. It was
ivl.so proved that there were crops in the ground
at the testator's death :— Held, 1. That the ver-
dict should he only for the value of the assets
proved, and not lor the amount of the debt. 2.
That the carding machine would not form assets.
3. That the crops would he assets, in the absence
of anv evidence as to the contents of the will
Fisher Y. Tnuimii, 10 Q. B. (il7.
ITpon an actir)n brought against executors for
the board and education of testator's daughter,
a verbal contract, at the most for three years,
was ])roved with the testator, and plaintiff's
knowledge of his death was shewn by charges
niaile in the plaintiff's account : — Held, that
the contract not being a binding one upon the
testator if alive, his executors were not liable on
it. /iiiitiliilt; (if LaiJif.'i of the Sacred Heart v.
Matlhew.i, 10 C. 1'. 4:57.
A bill having been lilod against trustees and
executors, residing at ^Montreal, for an account
of the estate, who, at the time of his death, and
for some years previously, had been domiciled
there, the trustees, &c. , although not obliged to
do so, had api)earcd to and answered the bill,
submitting to account, kc, in such manner as the
court shoidd direct. Afterwards, and before any
evidence had been taken, they discovered that
there, was a very important difference as to the
responsibility incurred by them according to tlie
laws of I'i)per or Lower Canada, but which at the
time of filing their answer they were iu)t aware
did exist : — Hehl, th.at under the circumstances
they ought to bo allowed to file a supplemental
answer, for the purpose of placing the necessary
facts upon the pleadings ; and that the fact that
such permission might enable the parties to set
up a defence of want of jurisdiction m the courts
of this province, was no objection against, but
rather a reason for this permission. Torrance v.
Crooks, 1 K. & A. 230.
An executor or administrator may by a sub-
mission to arbitration preclude himself from
E leading plene ailniinistravit, and thus render
iniself personally liable ; but. Held, on demur-
rer to the declaration set out in the report of this
case, th.at an executor or administrator may, as
such, refer to arbitration causes of action which
arise in the lifetime of the testator or intestate,
so as to bind the estate, and without making
himself personallj' responsible ; and, therefore,
the declaration being for a i)reach of submission
to perform the award nuide in pursuance of such
a reference, and also on the common counts
admittedly against the defendant in her repre-
sentative character : — Hehl, that there was no
misjoinder of causes of action, lieid v. Held,
It! C. P. 247.
An executor of an executor represents the origi-
nal testator, and is properly proceeded against on
a claim against him. Atlanv, Parke, 17 C. P. 105.
After the commencement rif an nMinn f
jury occasioned by negligence and iniimnntofn]
duct of the defendant in tlic iiiaiiagoriitnt t
vessel, defendant died :--lli|.l, tiiat tbo it '
could not be revived against hi.s txcfutoi 'r "'
eron v. Milloj/, 22 C. P. 3:n. ' "
A bill was tiled in 184(i, by devisees araiim
executors charging them with iniimjiKr ciiiiiliiH
in the management of the estate; ami tW
swers were all liled within a year afti;r«-,ir
No further proceeding was had tlien/eu luitilthl
beginning of 1851, when the lil;iiiitili's m(n,,l,J
afliilavit for the ai)poiiitineiit nf a reeeiveinf tK
real and personal estate. The emirt iiiuler tli
circumstances, refused the apiilieatinu with J
spect to the personal estate', as ikj new m,\,]2
for the proceeding were stated in tliu alli(|!nl
filed, but grantcil the motion in ivsiieut ,,[ ty
real estate. Jfearham v. Dnipfr, •_' (.'liy. ,'jlt;
As a general rule an assignment for tbe hmea
of creditors will be taken as a deelaratimi i
insolvency, and e(iuivaleiit to baMkruiitu ,
England. Where, therefore, simie ot the knl^\^
of a testator tiled a bill against liis executMra
I two of the legatees, charging iMal-a(hnini.str,itioi
j and alleging that the executor liad mMv i
assignment for the beiielit of his ereilitnrs, s,
was insolvent, the court upon a nintidn ion
injunction and receiver, before answer, granti
an interim injunction and receiver, iii.twitj
standing the executor denied any inal-itdiniui
tration of the estate, or that his iiisdh'tiifv
the reason for his making the assignment 'ni 1
estate. Jfarroldv. Wiilt'iK, <) Vhy.' AVI
A., B., andd. were appointed exeetitfirs.
as acting executor, received a large Miin liiloi
ing to his testatin-'s estate, which lie t'ailtil
account for, and a suit was edmnieiietii to
minister the estate. This suit was eomiirdimij
by the plaintiff therein, who was a lieintioi
under the testator's will, and tlie Cd-ext'iiitol
who took security for tlie sum fdund (hw
B., who agreed to cease all further iuterkTcJ
with the estate, which was tlieuteferth In
nianage<l by A. B. continued to iiuiLlli-
the estate; whereupon A. and (J. tikil a
praying for an account, and fur an iiijiuiotioi
restrain B. from all furtlieriuterl'eieiiCL' witlij
estate : — Held, on demurrer, that the \mv«
iiigs in the former suit and its peiuknoy'
no bar to the relief sought. ,1 ikiiix v. Blim,i
Chy. 212.
A legatee tiled a bill against executors
another person, between wlioui aud the
cutors it was charged, iiiipniper dealings i
taken ]>lace with the estate. Tiiu eiiargial
made were not sustained in evidence, ami
plaintiff was therefore ordered to jiay tliii
of the defendants to the liuariiig, ami alb^
only costs of .and subseipient to decree;
cross-charges of improjier oiuiduct having 1
brought ag.ainst the plaintiff liy otiur legal
made p.arties to the suit, and not suhstantial
the costs incurred in resisting such charges
directed to be paid by the parties making th
Miller v. McXaiiiihlou, 11 Chy. .S08.
Where a legatee tiled a hill chargiiiL' thej
cutors with neglect .and improper coiimict ia
management of the estate, all of which werf
the master's report shewn to be groumlless,
executors having man.aged the estate tn tbej
of their ability, and the cose in reality r
5. U06
uent of ^n actimi tnnnj
yeiicy ;mil iiiiiirdiiorcotij
11 tlio iimnaguiiient di ,
--Ik-M, that the arti.ii
linst his exuciltoi', r,|)iiJ
■xu.
84(1, liy ili'visees agains
II with iiiiiiriiinT cmuhic
the L'Htatt'; anil thu an
ithiii a year aftenvaril
rt'asliail thuHMiu until tt
III tliu plaiiitiIVs niiivtilol
tiiu'utdf a ri'i'fiver lit' tl
c. 'I'ho i.-imi't umler tl
thu a^nilicatiiiii witlira
ustati', as no nuw ground
:w stati'il ill the affiilavi
motion in ivsjii'ct nf tb
< V. /)/•(';»'■, •ithv. niii.j
assignnu;nt fnrtla-lientfi
;aki;ii as a ilfclurntiun
ivak'iit to liankniiitcy
ryfoiv, siiiiuMit tlu)li-i;ate
II a^'ainst his exemitnri
larging nial-ailniinistnitio
le exfciitor liail iiiailc
luui'lit of his eivilitnr?,
ri\irt njmn a miitioii inr
er, 1 Iff ore answer, graiiti
III ami veeeiver, ii"t\vitl
or (knic'il any iiial-iuliiiiii
or that his insnlvelKV
.kiiij^ the assignment ui
Wallix, C'hy. 44H.
re apjiointeil exoeutfirs.
eixivoil a large Mini hilo^
1 estate, which he failiil'
aiit was eomnienetil ti
This suit was eoiiipinmii|
vein, who was a lioutlid
«ill, ami the co-oxeiiito
r the sum fonml ilue ir
lease all further interferej
lieli was thentetnrtli tn
COlltilUleil to meiliUt
ipou A. anil li. tileil II
lit, ami for an injunitin
unlieriiiterfereneewitlil
jeiuurivr, that the jiivoe
[suit ami its pemlencyn
■lit. .1 1'i''"* V' '''"'"i
m
EXECUTORS AND ADMINISTRATORS.
1498
fcougl
liill against exenitnrs
|weeii whom ami the
Leil, imiirori-'r ilealmgs
pe estate. The eliaV|;e»|
lained in eviileiiee, m\
l,-o orilcreil to jny thi' «
lo the hearing, ami 'M
Inliseiiuent to ileeivi-;!
troiier comluet hiivmc «
plaintitl' liy otlur li^al
suit, ami not siihstaiita
resisting such charge- li
|,V the l':ii'tifs iiiakui(! ttj
L;», 11 C'hy. 308.
Ile.1 a 1)111 charging thej
Ivnil iniproiier oniiihict i»
lestate, all of whiel. wd
Liageil the estate ti; tliel
the case in reaUty n
,■ jj shntikl have been proceeded with hy a
I" "iiiirv lUipli'-^ition f<jr an administration order,
I'?'" ,',„"ft^ on further directions, ordered the
I • frifii'l of the plaintiff to pay the executors
I'l^' costs up to the hearing ; not the costs of
If ViTce, or of taking the accounts, or of sub-
1° iiHt nroeeeiliiigs, but directed the plaintiff
\"\L iier own costs thereof. Muuilie v. Leslie,
|]»(iy. 5,37.
Tlr report in an administration suit found
OS ohargeal'le again.st an executor. Of this
, £1247 was for the price of land claimed
ilrectiveil by the executor, the testator's son,
"heir, aii<l his claim to this had long been
Lvnics'i'cd in by the other parties interested, till
\\i otherwise in this suit, when the purcliase
r . „..,j declared to pass under the testator's
Kill to the claimant and others as legatees. A
nBOt itl3S, the value of the testator's chattel
wiiertv left by this executor in the hands of
ie testator's widow, and finally lost to the
state maile up the remainder of the sum charged
^jlilj executor, except a balance of about £34.
Failer the circuinstaiiees the executor was al-
Leil his costs, as of an administration suit, out
litiic estate; ami was not chargeil with interest
itheKalauce in his hands, w' ioh he was re-
loreil to jiay into court within a month, after
tJncting therefrom his share of the estate as
ipto, W,ii,iv. Ten-yberry, 12 Chy. 2121.
I A purchaser of real estate paid a portion of
k jiurohase money during the lifetime of the
leiilor, anil after liis decease paid the balance to
jsiiersonal representatives. None of the heirs-
ilif were infants, but they refused to execute
Iconvevance to the purchaser, who filed a bill
jinst the real ami personal representatives for
(cilic perforiiiance. 'I'he conduct of the per-
I veiireseiitatives was shewn to have been
ert, an.l the court, in making the decree
ikeil, onlereil the plaintiff' to pay the personal
psMiitatives their costs ; but gave tlie plaintiff
(Wits- of suit against the heirs-atlaw ; not
inst the estate of the vendor. Addaman v.
Hi, 13 Chy. 692.
jitre, where it is clear that a purchaser of
estate has paid all his purchase money,
ketlier it is necessary, in a suit of specific per-
! against the heirs-at-law of the vendor,
Lmke the personal representatives parties to
'1 therefor, lb.
Ilnsuch a case it would seem sufficient to add
I personal representatives as parties in the
ter's office. Jb.
IBy the iu,aster's report executors were found
iebteil to the estate, one of whom, being dis-
istied with the linding of the master, gave
fee of ajipe.al to the plaintiff, but did not
rf any notice of appeal on the other executor :
flelil, irregular, and that a special application
Kill he necessary to be allowed to give notice
'eapjieal after the regular time for so doing.
Itiact that the interest of -the party m)t served
I the same as the party appealing made m
llerence in respect to his right of being present
p the argument of the appeal. Larkin v,
ulmg, 1 Chy. Chamb. 62.— Blake.
n» executor of an estate, which was small,
lilted the widow of the testator to receive
kmoneya of the estate and expend them in
Mupportof herself and children, and on the
eldest son coming of age in 18,'')2, the executor
pointed out to him the clause in the will direct-
ing a distribution of the personal estate, but the
only estate the executor tlien li.ad, was some
household furniture. In IStJT, the wiilow having
set up a claim for dower rejecting an annuity
provided for her by the will, tiie lieir at-law tiled
a bill ag.ainst the executor for an aceount : —
Held, that the Statute of Limitations did not
bar the relief ; but, inasnuieh a.s the executor had
! reason to believe he would never be called ou for
an account, the court thought the iiuastor, in pro-
i ceeding under the decree, should act liberally
i upon the rule of court giving the ni.aster a dia-
] cretion as to the mode of vouehing accounts in
his office. Walmslf!/ v. Hull, I.l Chy. 210.
A bill was filed against an executrix de son
tort, charging that she had sold the per.sonal
estate of tlie deceased and apjilied the proceeds
in the purchase of certain lauds, and praying
that she be declared a trustee thereof for the
next of kin, and, if necessary, that the estate of
deceased be administered. An ajiplicatioii was
m.ade under consolidated order ■")() for the aiiimint-
ment of some person to represent the estate iu
the suit, ou the ground that there was no perso-
nal estate outstanding, and the appointment ia
this way would save expense. The motion was
dismissed, it being -Held, that the deceased was
not interested in the matters in (picstion in this
suit, and therefore the case was not within the
provisions of consolidateil (U-der ■"»(! ; and no ac-
count having been taken of the personal estate
it could not lie said that the personal representa-
tive of the deceased would be merely a formal
party, for a balance might bo found due from
the defendant to the estate, which it would be
the duty of the personal representative to ad-
minister. Lronani v. V/ydf.iddle, 10 L. J. N.
S. 107. — Chy. Chamb. — Holmested, J{ffeire.
A bill was filed against two executors and
other persons. One of the executors, .ag.ainst
whom charges of breach of duty were made by
the bill, died. A motion by the surviving de-
fendants, including the co-exccutrix of deceased
defendant, to compel the plaintiff to revive, or in
default that the bill be dismissed, was refused : —
Held, that the proper parties to m.ake such an
application were the representatives of deceased
defend.ants, .and that the surviving defendants
might move to dismiss for want of prosecution in
the usual w.ay. ]Vals(ii) v. Wdtnon, G P. K. 229.
Chy. Chamb. — H(dmested, Referee.
VIII. EviUEXCE IN AcriON.S AND SuiT.S BY AND
ACJAIXST.
1. Pr<wf of Representative Character.
The plaintiffs declared as executors, laying
promises to the testator and to the plaintiffs
after his deatli, and on an account stated with
the plaintiffs. Defendant pleaded only the gen-
eral issue, and plaintitTs proved an acknowledg-
ment of the debt by defendant to them as execu-
tors : — Held, that it was not necessary to produce
probate to prove their representative character.
Dickson et al. v. Marlcle, Dra, 28(i. See, also,
McGiU v. Bell, 3 O. S. 618.
Upon the issue of lie unques administrator,
the plaintiff", producing such letters of adminis-
tration aa he has pleaded, will be entitled to
!, i i
1499
EXEOUTOES AND ADMINISTRATORS.
succeed. If tlioy ill" not give the iilaintiff a
right to Hvie, ))y reason of aiiytliing extrinsic,
such as tile jilacc of resilience of ilefendant, &c.,
the fact must he jileailcil specially. Upon the
issue of ne unipieH atlniinistrator de honi.s non,
the ]ilaiiitil!' ucimI not ]iroiluce the <a<lniinistra-
tion granted to the former administrator. Beard
V. Kclclnnii, ") (^ B. 1 14.
Held, that the evidence given in this case was
sutlicieiit to jirove cxecutoi'ship as against one,
if not as against lioth defendants. Etui of Khj'm
V. >S/air.-<im'(l III., U) (). \>. 2S[):
Tn ejectment, claiming through a sheriff's sale
under an execution against executors ohtained
on their confession : - Held, no ohjection tliat
they had not jinived the will, for by confessing
judgment they accej)ted the ollioc. Maniknlle
V. Xkh:ll, Iti'Q. 1'.. ()0!).
An American jirohate of the will may lie re-
ceived as corroliorative evidence of the repre-
sentative cliaractcr of the executor. Sloan v.
Whi'lni, 1") ('. r. 319.
In an action on a note endorsed to the ])laiu-
tiff, in tilt! state of \ew N'm-k, hy the admin-
istrators of tJic payee, to prove the administra-
tors' authority, an exemplification of letters of
administv.itiou was put in, granted hy the Sur-
rogate Court iif the connty of Otsego, in New
York, A\here the payee had died, and purporting
to he signed hy the surrogate, who certitied it to
be a copy of the originid I'ccord of the letters,
and a seal was aiiixed described as his seal of
oilice. Attached to this was a certiticate under
the great seal of the State of New York, pur-
porting to he signed lij' the governor, verifying
the signature and iHice of the surrogate judge,
and the seal of his court ; Held, suthcient.
Held, also, immaterial that the administrators
had added tn th('ir names "executors" instead
of "administrators," the addition being surplus-
age. J/anly. Paliixr, 21 i). B. 49.
2. Oilier Citup.t.
In an action byaji administrator, a replication
of a promise to the intestate, in answer to a plea
of the Statute of Limitations, is not supported by
proof of a promise to tlie administrator. Wrhjlit
V. j\J('rri(iiii, (5 (). S, \i\~.
Where the defendant in an action of assump-
sit paid money into court, and died, and the
action abated, and the plaintiff afterwards sued
his executor for the same cause of action, and
took the money in the former suit out of court,
but proved his debt to no larger an amount : —
Held, that he could not retain the costs of the
first action, and recover against the executors for
the diflerence between the sum remaining and
that originally paid in. Carci/ v. Clioat ct al.,
6 O. S. 4(7.
The plaintiff', as administrator, sued defendant
upon four notes made in 179t), averring aibninis-
tration de bonis non in 1847, and hiving promises
to hiuLself as administrator. Hefendaut denied
the promise : — Held, upon the fnos set out,
Jones, J., diss., that if the admissions proved
could be construed into an absolute promise to
pay, still being made before the phiintift' had
received his letters of administration, they could
not support the issue raised. Beard \. Ketchiim,
5Q. B. 114.
l.iHl)
Quasre, whether the adnn'ssifjufi jn ,.^.j,
would support an absolute ]irciiiiitit to i'\ "''
made to the administrator Ininstlf ^i,,
whether the fact of their being ni),!
''*•■ e-'itatf, ,111,1 j
II
il in,
person instead of to the administratMi- m',\
difference. Jh. ■
Action on a bond that (1. C lii.4,.v ,.
Kc, sliouhl account and pay over im i,.
Defendant was one of three executufs i)f7;"'i"'
but did not act in the allairs of the
i lived at some distance ; and a reiiutst tn i,
I over all moneys, &c., liad l)eeii nm,l,/,|.,„',, ,i''
I other two executors, but not ou him, h ,,'"
j admitted, however, that all the exLeuti.iv '
I been sued on this bond, mid served with iir,™,.,
, and declaratitui before the ennnueii(viii,.i,t„tti,;! I
; action :— Held, that tiie demaml \v;is siitlid,.!,,
I J he rrovtxiimui (.in-pnrii/inii n/ thi> Ciiihi.i ,f%
Bruce v. Cromar, '22 (). H. .'{21. " '
j QuaTe, per Hagarty, ■!., whetlier, as a aanzll
rule, when a demand upon executors is iit.t.i,„.„.„|
it must be made upon all. Seiulile, nut in „nie[|
to support an action on a contract of tiit- u-uJ
tor, hut that a demand upon oik' wmiifl '
insuthcient to cast any new oi- pursnnul liahil,t^|
on another executor. ///, ''■
IX. Actions o\ .^rr.iiMsTNATK.N J'.hmk.
1. Aa.ihjniiii'ut iij Ail,,i!iii.-<hv'ini, /;,,„,/.
The bond being conditioned to exliihit an mJ
ventory into the Court of I'mhute on the III J
Monday in June, and the breach being that tin
administratrix did not exhibit an iiiveiitnv .
the first ^londay in the i/i'nr, (lie ilcclnratimiiv
— Held bad on general dcnnuTcr. Milrfify
McKinzii, 2 Q. E, 103.
The costs of an a])plitMtion in Cliaiioerv miilei
sec. 82 of the Surrogate Courts' Act, (0. '^. Uj
C. c. Hi,) for an assignment of a proliati' Imii^
in order to an action thereon at conimini lairi
cannot be taxed as (•(«/,< in the action, Imtshnii
be recovered as ilnmiKji'n coiiseinieiit mi tij
breach of the condition sued for. ('/(/<«)« '
Poftt, « L. J. 141.- ('. L. Cliaiuh.-l)rai.ur.
An administration l)ond having liutii givent
the surrogate judge of the united countiis (
Huron and Bruce, and the union haviiy lie
afterwards dissolved : - Held. iimlerC. .\ U. C.
I(), ss. ()3, ()5, that the judge of the senior ciaiiitj
could not order sueli bond to lie asjij,'inil
having been luinied by the Court of CliaiicfiT I
the judge to whose beiielit it should enure; ad
that the plaiiititl', suing as assiL,'noo uiiilti' "
order, must prove sucli iioiHiiiatioii. S'di/'M
McCurrou; 35 Q. 11 22.
An application for the assigiiiiieiit nf an aihiiij
istration bond under the act respecting Siirni
Courts, will not be granted without nntar i"
sureties, lie JlilU, 1 Chy. Cluiiuli. .'JSO.-M.id
2. Vnder 33 Urn. III. (. S.
[ Under this act the hitml ims tnhn to the <j(irtr4
of the province. Xov, vmler (.'. S. U. ( '. <". 10, ■'
it i.H taken to the. jtuhje of the Svn'u'jate Vmii.]\
[As to the form of .'^iieli himd vmln- thjir'Km
and of a, decl<iratiiin theriim, m'i'; ft'i'"' * ■ -f
Kenzi'e, (i O. S. 5S0 ; Metcalfe v. McKeirJ>: v'j
B. 103, 3-:i9.]
liiiisMiiiiK in tvi.lfiH'e
tc imimiHt to iray, ij
ii' himsi'lf, md if sn,
lii'iiin in\.lt' t" a tlnr.i
liiiiiiistrator, nuuic anv
t <1. ('., his executors,
pay iivir nn reiniest.
•et! L'XL'i'utdi's i)f (;. I',,
airs of the estate. ;;ul
ami II i'u(|Uest tn juy ]
I lii'Oli liiiwle 11(11111 the
not on liim. it «aj 1
Jill tl\<! exeoutti^ \a\
xw\ aerveil witli innows j
lecnlliiueiu'uliielitiil tliisj
lU'iuauil was sulliii.-iit. I
•iiliuii of llie Vuiihi'i i.fl
li. :«i."
J., wlii'tlier, as a i;i'Ui:ralj
on fxei'utiii's is uetiwiryl
11. Scnilik', lint ill iil'ittj
a foiiti'iU't of tlie ti-t,i-[
ml upon one wmiiii li«|
lu'w or personal haljility|
'h.
OlIMsmATION I'mMi-
Utioiit'il to exliihit an in^
■t of I'riiliate mi the lirs
ho lireaeh heing that thlj
t uxliiliit an iuveiitmy
-2 i/ciir, tlie ileelaratiiiinviJ
il' iknmrrer. .M>i'-''[f y\
icatioii in Chanoery iimia
itr Conrts' Aet, H'. •-. I'
inu'iit of a prohate l-iK
thoiron at e.iiniiiiniljn
.< ill the action, liiit sin '.ill
Kfr.^ L'onseiiuent mi till
loii sueil for. Vl"--'"i
].. Clianili.-lh-aiier.
,,i„l havin.uheen givittl
I the llliiteil einilitii-
a tho union haviii- lue
Ueia.umlerC.S. I.e.
uiU'eof tlieseiiioi'o™i^
liouil to lie as>i,i;lie.!. ifl
tliu Court ol'l'haiirtiyl
letit it shoiihl enuiv ; ai^
,,, as assi^^nee uu'hi'^
h nomination. V('r/;i '
leas.sionmentofanailmil
[eactrespfetingSiirri'i:^
Ite.l without iiot.tr •." tl]
.fhanih. MO.- M'«»
Oeo. III. <•■ S.
lm/.'rC,.S.r. ('..•• KM
]■/( houd uwhr thepi'
I.1OI
EXECUTORS AND ADMlXlSTRAToltS.
l.")0:
I we to sue on a lioiul givoii to the lie'Utuuant
iveriior f">' tlio time lieiii;,' a.s a judgti of the
\f rMif I'rohate, should lie apjilied lor to that
"rt" nut to the ( 'ourt of t^Jiieeii's lielieh. J 11 rr ;
jj",,ii(iH,5U. S. 71. j
Dolit on (in adniinistratioii liond, as.signing
Ik aches ill tl'^'''''*^'''"'''''""' '''"■■•i^> •■ 'I'hat '//Vcr
I rLi,,- Ni'iiveiiilier, KS.'JH, I the day named in tho
,:jji„j ,111 whieh the admiiiistratoiN were to
pI'ljiT their aecoiint,) to wit, on, etc., and a.s soon
'.' ,. nvwo'iaiilv eiVllhl, till' administrators rell- '
jtiiu\ ri.i'-o.i'" 1. , 1 • 1 11 1 '
I I .J a 'list and tiill aecouut, wliieh was allowud ;
1 V thc'jmUc "•' t'"^' •'^"''''' 'n'*''^' ' '' '"'"* '• -• ' ''^'''''' "■'"■
. Ji.iiallv ; ;<• Thaton the 1st of Novenilier,
I IW "there was no sitting ot the Surrogate ( ourt
Itnviiii'h the administrators eoiihl have remlered
t'wr account: Held, on demurrer, jilea.s had.
]^lE,u-lo/EI:linv.Cro.lnj, 10 (,>. li. KT.
The next of ki" enniiot elaini substairti.al dam- |
lies ill an artion on an administration hond, :
|j|-]jff^,,)i'i,leeree for distriliiitioiihas lieeii obtaiu-
Ll, l,v shewing merely that '.he administrator J
Ihainvcivetl moneys for the estate. The proper
leciirsi' for the (lei'eiidaiit in such a case is, to
iHiiilvtotlie court to stay proceedings on the
Itoi until a decree for di.strilrtition has been
jctoineil. ■^'•<' /''--'fi-
Ahreach, that although a large amount or
|jjjjj(,t i-iichIs. &o., of the deceased had come
llotlii'haiiils of til'-' administrator, he had not 'well
ad truly aihuinisteivil the same according to
lliT;-Hehl, had; and that the only two modes
limiliich a valid breach of a condition in the
|!snn iirescriheil by this act can be assigned are,
jw-lfiisaiico in not duly collei-ting and getting
Ijltlit estate, whereby it is lost or endangered,
IttMlfcasanee in wasting the assets collected by
iMivtrsum of the same to the administrator's
Ijraiise. or .some other nii.sappro[iriation where-
liirtlit' estate is diminished, to the prejudice of
Itios: entitled. -V(/7 w. MfLaiiijIdin, 10 L'. P. SoO.
li. !¥(!•. Vi(i-ro;;((i'f' Cunvt-i Arf, ( ('. S. ('. C c. IG.)
j Hilil, that the rules and orders referred to in
lielStiisoc. of this act, being sanctioned by the
fc I'sidatiire, a boml in accordance with tho
lin:,i;icsci'ilieil by them must be held sulficient,
l&iii'ii it was alleged not to comply the statute.
iil V. M\IU, •-'.■) (,>. 15. oOS.
Part of the condition was, that the ■adminis-
itiir slumlil, when lawfully called, on, make
J exhihit an inventory of all the estate auel
kts which had or should coiiu' into his hands.
first hreaeli alleged was, that the juilge had
nit ail oi'iler upon him to bring in forthwith
invtiitory of the goods, chattels, and credits
tlw ilcceased, and that he did not make or
fit ail inventory of the goods which had
ni- iiitii his liaiiils, or any inventory : — Held,
lit aiiiiiii ly the order to be too large, it w-as
ivertlicless good to the extent of the condition,
Mtliatilie lireaeh, not going beyond such cou-
«, was also good. Held, also, that it was
stcessary to shew the amount recoverable in
ijiettiif such lireaoh. Ih.
Hell, that the non-payment of the plaintiff's
"Ij.'mciit against the intestate could not be
lij.ii.il as a hreaoh of the bond, for the Surro-
' fViiivts' Act gives uo new remedy for the
ivtry of (lelits. lb.
Qu,T.Te, however, as to the mode of carrying
out the provisions of see. fi."). ///.
In an action on an administration bond, the
want of a decree is a good plea to a breach for
not distributing, Imt it is no ground for st.iying
proceedings, nor is the want of a citation for an
account, nor the omission to shew the receipt
anil misappropriation of funds. On such breach
full damages may be recovered. Iiictiiin in Karl
of Hlgiii r. Crosby, 10 (.>. B, 'J.")!;, doubted and
distinguished. Si'dlx. }h-l.<ii(iililht, 4 I'. 1!. 'AVI.
X. Lands .\s AssKis in tmk Hanhsipi- llxixr-
TOKs 01! AiiMiMsii: vrons.
[/iv ,.'7 Vkl. c. 15, it is omclcil thtit iiiiili r the
Iiiipcriid Hliiliite 5 Geo. 11. r. 7, tli>' titif mid
iiifiTi'.if I if' (I ti'.<liitiir or iiili'''tiili> ill litiid miijlil lif,
(tiid hi'ri'iij'tcr mill/ hf, /ni-.n/ ami .unlil iindi'r a
jiidijiiii'iit luid ixh'iiUdh ivi'oimil bij 11 ci'i'dilor nf
till' ti'/ihifor or iiifi:<lidr iKjiiiimf Am' v.ociifDr or ml-
minii/riifor, in tin' miiih' iiiiiiiiu'r, mid under /lie
xiiiiii' jirori'^.^, (1.1 iiiidtr a Jiidi/mcnf mid e.n cidioH
iiijiiiuf/ fill' deri'ihfn/ if liriini ; mid all mtrlt unh'S
lii'rr/of'ori' Hindi' mv finiji rmi'd, t.rci'/ifiii'j cities
jxiidiiiif lit till' jiiis.iinij iij' till: I'd, iir tlicri'tifure
Jimdlif iidjiidijed.]
Semble, that a fi. fa. cannot issue against lands
of an intestate, a.s being .assets in the hands of
an administrator. /'o.- d. Ilini'ili-i v. ('iirl'r<ii\
Tay. '.'li.
The court refused to order a hherifl' to refund
money received by him as the price of laml
sold at sherill's sale, the purchaser iiiving lieen
ejected, on the ground tli.it lands could not be
sohl under a ti. fa. as assets in the hands of an
adiiiiiiistrator. In rr C'lir/nn', Tay. 47-.
; Lands and tenements held in fee simple by a
debtor at the time of his ileccase, may be legally
taken in execution (Ui a judgment against his
executor or administrator. Furfi/tli v. Il'dl,
I ])ra. 29 L
I Quiere, whether, in order to sell the lands of
1 a deceased debtor, against whom jndgiiieiit was
obtained in his lifetime, the proceedings should
; under 5 (!eo. IL c. 7, be against his heir or per-
sonal representative. I'ur'i/ v. Miiirln-iid, J)ra.
4St).
Lands are assets for the satisfaction of debts
in the hands of an executor, under ."> (ieo. 1 1. e.
7 ; and to a plea of pleiie adiuinistravit, the
plaintiir may reply Lands, (jurdiiirr v. (innliin'r,
2 O. S. 520
Demurrer to a replication of lands, on the
ground that the executors had no control over
lands, or could not as executors dispose thereof :
— Hehl, replication good. Si-nlun v. Tiiif/vr, 3
Q. B. .302.
Replication of lands held bad on special de-
murrer. Boires v. Juliii<on, (i (X S. 158 ; W'md
V. Mi'Vormnck, K. T. .") Viet., K. & H. Dig. 208.
Lands may be sold on a judgment against one
of several executors, in the same m.anner as if it
had been against all. Dor d, Sinilli v. Shide.r,
(). S. 055.
Semble, that lands may be sold under a juilg-
ment confessed by au executor. Dot: d. Lifon v,
Leije, 4 Q. B. 3()0.
W:'
.'). !
1503
EXECUTORS AND ADMINISTRATORS.
InOi
[! !
I'lulur 5 Of'o. II. c. 7, lamia are assets in the
liuiuls (if t'xcciitdi's for the payment of iinlitiui-
(latuil damages in an action of covenant, not
merely for debts. Sickles v. Asschtine, 10 Q.
B. 203.
To an action on a covenant for title by the
a.ssiL'neo of the bargainee against the executors
of tlie covenantor, defendants pleaded that they
had fully administered all the testator's goods.
The plaintiirs reidied lands. Defendants rc-
joine<l, that they had fullj- administered all the
lands of the testator which had come to their
hands, kc. The n^joiiider was held clearly bad.
The replication, lieing excepted to, was upheld
on tlie autliority of (Jardiner v. Gardiner, 2 ().
8. r)20. Draper, J., yielded to the authority of
that and otlier cases decideil in this couit. though
he considered the replication bad, for the reasons
stated. ///.
An executor or administrator is not liable to
have a judgment tie bonis propriis entered against
him on a rc}>lication of lands to a plea of plene
administravit, which virtually confesses the truth
of tlie plea. Tii/i/iIik/ et al. v. YanUmjton, 6 C.
P. .347.
Action against an administrator. Defendant
pleaded plene administravit, to which the plain-
titt' replied lands. The defendant rejoined, that
he could not deny but that the intestate died
seised of lands ; liut that his heir-at-law, for a
valualile consideration, conveyed all his interest
to defendant : that at and before the death of
the intestate one II. held a mortgage on said land
for its full value, and that defendant solely to
prevent costs against the estate, and without any
consideration, conveyed the equity of redemp-
tion to said H. : — Held, rejoinder bad. Lcvis-
rontc v. JJortanil, 17 (,*. B. 437.
Declaration against administrators on a promise
of intestate. Defendants pleaded a judgment re-
covered against them, and that they had fully ad-
ministered, except goods, &c., to a small amount,
insufficient to satisfy the judgment. Plaintiffs
took issue on tliis plea, and also replied that the
intestate died seised of lands, &c., which are
assets in defendants' hands. Defendants con-
fessed it to be true that the intestate died seised
of the lands, and that they are such assets ;
nevertheless, inasmuch as defendants, as adminis-
trators, never had power to sell or apply such
lands, &c., to the liquidation of any debts of the
intestate, they prayed judgment if the plaintiffs
should further maintain their action against
them as administrators, as far as the same related
to the liability of their own goods and chattels,
llejoinder held good on denmrrer. Mdn et id.
v. S/iorl ct al., 9 C. P. 244. See also Mein v.
Short, II C. P. 430.
Semble, that for the purpose of enabling the
creditor of an intestate to get execution against
the intestate's lands on a judgment against the
administrator, it is not indispensable to reply to
a plea of plene administravit, or to a plea like
the one in the present case, that the intestate
died seised of lands. S. V. 9 C. P. 244.
Action against au executrix. Plea, a covenant
by testator on which £3, .500 remained due ; and
plene ad-miuistravit, except goods not sufficient
to satisfy eaid specialty debts. Application for
leave to take issue and reply lands was refused,
and the case of Meiu et al. v. Short et al., 1 1 0.
P. 4,30, referred to as the coursr to be nm^.. i
Ifolton v. McDomd,!, 12 0. P. 24(1. ' "^'
The liability of lands for debts uikIlt ,"> {Jt,
II. c. 7, is not affected by the deatlidf tlie delitij
He or his heir or his devisee after hjs death w- ■
sell or convey to a bona tide puicliaser fur vain-
at any time before judgment has lieen entirt,i
against him or his personal representatives ir
execution against lands issued uiiuuit ; amlsiicli
purchaser will have a good title as against rre.ll
tors. Leviseonte r. Dorl.uid, 17 (,i. H. 43;
marked upon, Reed v. M'dli r, 24 (^). ]}. (;i(j
An administrator of an administratrix caniiit
represent the intestate, but au adiiiinistratir ile
bonis non nnist be appointed to the iirii,'ii,il
estate ; and a sale ))y the sherilV nf himls heli.ii''.
ing to the intestate under a li. I'a. issiieii 011 '1
judgment against such administrator is nuLMturv
Imjulls V. Rdd, 1.5 0. P. 490. •
Action on a judgment recovered against aa
executor. The declaration set out a iiidi'ment
recovered, .alleged the issuing of a fi. fa., anJa
return of nulla bona, and sugge'sted a ilevastaWt,
Plea, that in that action defendant pleailediilen
administravit : that the plaintitV rejdied hui<li
on which judgment was given tliat the lanjj I
were assets in the hands of the defendant as
executor. The defendant then averred that the
Lands were suflicient, .and that the plaintiff bil
not proceeded against them. 1 •ennnrer to nleiu I
on the ground that, where judgment has ken I
recovered .and a devastavit is shewn, it is not I
a sufficient reason to excuse the defendant fromj
personal liability, that the idaintitf has obtained!
a judgment to recover of tlie lands of the testi-f
tor : — Held, that the replication of Lindj wsaj
a full ailniission of the truth ot the plea of plensj
admistravit : that the plaintiff, by his replicationl
in the former .action, being estopjjed from settingl
up a devastavit now the defendant was at libertyj
to shew the true state of the case, to save him-]
self from personal li.al)ility ; and that the ripii-l
cation (of lands) commonly used siuee Gardinerj
V. Gardiner, is both illogical and uuuecesaary.I
Ho(jan V. Afor'tttiS!/, 14 C. P. 441.
Re.al estate cannot be sold in this province
j under .an execution obtained against an eiecuto^
de son tort. Mclhule d. O'Cuinwr v. Dapx. '
Q. B. 38G ; Wrntlnnll v. Iii,ie.<, l,j Q. B. 3i)lj
Graham v. NeUm, (i C. P. 280.
Held, that the sale of the reversion in ■% ten
of yeai's under a fi. fa. on a ju<lgnient itg.iinsta
executor de son tort, is a valid s.ale as .against thi
riglitful administrator ; and Semble, it is m
necessary that the tort executor should hivf
been in actual possession in respect of the term
Bain v. Mvlntyre, 17 C. P. ,500.
Since 27 Vict. c. 15, for the purpose of
execution .ag.ainst lands, heirs are prira.^ iu
bound by a judgment .against the executor (
adminstr.ator of their ancestor, in the same vrij
as next of kin are bound ; and although they a
not entitled as of course to have the issues trid
over again, it is open to them to shew, not m
fraud and collusion, but that the judgment I
decree, though proper .against the executor I
jvdmini.itrator, was in respect of a matter q
which the heirs were not liable. Lovdty. Wjioj
19 Chy. 280.
The opinion acted upon by Mowat, V, C,,j
the last case, that for the purpose of an eie(^
if''*
W ■
. I'. •J4(i.
ir (lol)ts uuiltr 5 Cui,,
iieileatlnif the iWlitnr.
oe after liis death may
lu \>iin'h;iserfiir vaW,
K'lit lias lieou entired
lal rci)i\'seiitativu9, nr
iucil iiiMHiit ; andsnA
il title :is ;ig;uiist orcdi-
lana, IT (.1. n. 437, re-
/;//. i; -24 g. B. tilO.
I adiniiiistratrix camut
lit ail ailiiiiuistrator de
lointcil t(i the nriginal
slioritV of lands Ireldiig-
Icr a li. fa. issued ou i
iiiiiuistrator is migatiirv,
4!»0.
it vocovorcd against an
mil SL't out a indgmtiit
.ssiiing of a fi, fa., and a
1 suggi'ste'd a devastavit.
ilcft'inlant pleaded (ikn
I jdaiiititV replied lands,
IS given that the hiidj]
Ills ui the defend.ant asl
Hit tlieii averred thnt the I
1(1 that the plaiiitill h*i I
hem. 1 •eiiinrrer to jdeaa j
here juilgmeut has Wtnl
tavit is shewn, it is iwtl
xcuse the defeiid,ant froml
the jdaintitf has obtainedl
of the lauds of the teitvf
replieatiou of lauds wsJl
truth of the, plea of plenti
blaiutitV, by his replicatioal
Ling estopped from settmgl
fe (lefeiulaiit was at liberty j
of the case, to save bim-F
)ility ; and that the npili-i
onlv vised since Gardinetl
lloo'ical and uuuecessary.i
C."l'. 441.
lie sold in this provino
,aiiiod against an eif <itol
,1 o'Ciiiinor V. Dajo'. \i
y. lhiU'.<, 15Q. B. 391^
1>. -280.
\i the reveraion in a ten
onajndgmeiitagainita
avaliilsaleasagamstibi
I ; and Semblc, it is n*
I't executor should ha»(
m in respect of the term
. r. :m.
_ for the purpose of ^
is, heirs are prima M
1 against the executor (
Lcestor, in the same w^
Id ; and although they a
L to have the issues tn«
V,) them to shew, not onf
Lt that the judgiueut
against the executor (
- respect of a matter 6
lot liable. Iow«v.0.4«
Lpon by Mowat, V, C.,1
1 the purpose of an "'='1
1.105
i:XECl"r(»llV DKVISK.
ir.oo
tion «>■'«'"*' ''""'■■* ''"'''■"' •'"''' """' '"''""' ''"•''^'
• ml l)V a judgment against the executor, was
"ll wed bv Strong, \. V.. witli an intimation
that hut foi' tl''^t ca.su, he (V. ('. Strong) wimld
. I,...-,, arrived at the H:mie eoiielusimi. WiHit
;' ir;//i--, i!> <•'>■■ i>/3.
XI. i-XKiL'Tol; in: .--IIN IDIM'.
Whether a [larty has made himself an execu-
(ie son tort is a mixed i|nesti<iii of law and
•' t The jury must timl tiic facts if disputed,
. d the court are to say whetiier those facts
itite an executurship. Jloni-kc v. VuriUni, (J
\mrtv mil"'' '""^ke liiiiiself an executor de sou
.„rt liv answering as executor to any action
lUwlit against himself, or by pleading any other
„l,.itliimne umiues executor. //-. See, also,
!?1m-.>V/'-',, .'.'/., I4(,>. I!. L'l.S.
against tlie lieir-atdaw of a
lT to idit.iiii a spi( illc iierlorni-
il
'■"•V
I'lvments made to an executor de son tort form
iiidc'feiiee to an action bv the rit;littul executor. ;
»„„(,,■ V. Ii,'/A'-v, 1,S(,>.'15. 3S.Jr :
Debt U'ain.st defendants as (>xeeutor.s of J. ,S., ;
)n a judgment recovered against him. Pleas, ■
hi; niuiues executors, and i)leiie administravc- '
Milt. It ap|iearcd that the testator, who ha<l
toim'dv lived in St. Liiwreiice county in tiie
i Pnitol States, and in this province, died on his
' itmm from California, leaving a will, but ap-
■ no executors. Defendants had cditaiiied
'j,yiu,°tratioii with the will annexed from the
juffL^ate Court of St. Lawrence county, being
j jiij [I'roiier triliunal there, and having iluly ad-
nuiiistered all the assets (the greater part being
' iw.riiiiriated to a debt ilne to one of the adniinis-
trator-sl Iwd olitiiiiicd their discharge. No assets
1 were shewn in tliis country, and no intermed- ,
lil liy defendants here. The evidence was ■■
I coniictinff as to wiietlier testator's domicile was
I inthisprov-ince or in St. Lawrence county, l)ut the
ir;- found tliat it was in St. Lawrence county ;
1 md a verdict was rendered for defendants: —
Held, that such verdict was right. Jomhj, v.
\<mi,m-tiil., 14 g. B. -213.
Held, that real estate cannot be sold in this
I primiice under an execution .ditained against an
Istditordesuii tort. Mc/)<i(/i d. O'Coinmr it nl.
Ir. ^i;V. l.-ig. 15. oSd; U'nifliin/I V. Jln/i.-^, lo
IQ.B.'Sfil; OrHliaw v. Xi^l.-^ou, G C. P. •2S0.
.\i\ action cinnmenced against an intestate
I mav lie reviled under (,'. S. \j. C. c. 2'2, sec. 134,
I aid continued against his executor de S(jn tort.
jAttn-iv. 07/iiw, 10 C. P. 43.").
This question cannot be raised under a plea of
I Dumiiiies executor //*.
Held, that the sale of a reversion in a term of
Ivtars uuder a ti. fa. ou a judgnieut against an
Ifxecutor de son tort, is a valid sale as against a
[rightful adniinistrator ; and, Senible, it is not
Inttessary that the tort executor should have
llieeii in actual possession in respect of the term.
S'my. Mr hfi, in, 17 C. P. 500.
Held, that iu ,in action by a creditor against
lin executrix de son t(U't, she cannot set oti" a
Iileht due from the plaintiff to her testate ir. Held.
Iiki, that she may lie sued as executrix, and on
jkr defending as such the plaintiff' may reply
9.j
that she is exciitrix de son tort, (''imi
f mill run. •_';! ('. !'. I'SO.
In proceeding
pnrcbiiser, in onL ^ ^ y
anee or rescission of the contract, the jiersonal
reiireseiitative of the deceased is a iiecosMi'V
party to the suit, and without one the suit 's
defective, though ail executor clo son tort is a
defeiid.int, ami though no .administration had
been t.ilieii out before the tiling of the bill. O'Xnil
V. M.-Miilinii, -2 (.'hy. 14.-).
An executor de son tort I'aiinot, by giving a
confession of judgment, or in;d<.ing ]i:iyments on
account of a debt, or by any otlier act of his,
give a new start to the Statute of Limitations as
against the rightful admini-^trator, nv the jiarties
beiieticiallv interested iu the estate. Unnil v.
Mrjh.iiii/,}, S Cliy. 4l')S.
See [.■■'•1,11 I'll V. C/i/'l:«l<ii., 10 L. .1. X. S. I07,
p. 14<t.S.
XIT. MlsiEt.LAXEul-,s C'ase>.
A disclaimer as executor by one (d' two execu-
tors and devisees in trust, does not prevent the
tru.st estate from vesting. J)i't:d. Jlni/, r v. CIuhk,
3 (>. S. 14(j.
Where A., having only a bond for a ileed, and.
not having paid all the purchase money, con-
veyed ill fee to P.., and died, and 1!. went into
possession, and coiitinueil for several years, when
A.'s .-idministrator obtaineil a coiivty.anee in fee
to himself, friiiu the person who had given A.
the bond :--lleld, that the administrator wa.s
guilty of a fraud, and that Ins title coiild not
prevail against H. /'(" d. />o'//i v. Viiml' rl'i/i,
5 (>. S. S.-).
Lxecutors empowereil under a will to sell
laiiils. are not bound to sign the deed in pres-
ence of each other, as arbitrators executing an
award. Liitl, v. Aihiinni >t >(/., 2S ^l. IJ. ;i.'>7.
Sec. i'T of the Insidveiit Act <d' ISii."). does not
enable the creditors of a deceased person to put
his executors or ailiiiinistrators into insolvency
in their representative character. In /v Slmrjn',
•10 ('. P. s-.>.
Held, that niioii the death of a sheriff' who
had recovered juilgmeiit in an action on notes
seized under a ti. fa., his personal representative,
ami not his successor in otlice, is entitled to exe-
cution. DirkiiDHiu V. Htirriif, (i 1'. P. 170. — (.'.
L. Chaml).— Daltoii, C. V. ,C P.
Where certain creditors of a deceased insolvent
sued his executitr.s, recovered judgments, and
sold his real estate, and got paid in full : -Held,
that tliey were still hound to account, and the
other creditors of the insolvent were entitled to
have the whole estate distributed prorata, uuder
the Act '-'it Vict. c. 2S. B.ink of B. X. A. v.
MkUvi-ij, 17 Chy. 102.
EXECUTOR DE SOX TOET.
.S'c't' ExF.( VTORs .VNU Admin ismAToKs.
EXECUTORY DEVISE.
Sm Will,
■'■•1. 1
Hi
150-
EXTENT.
150$
KXIfiKNT.
A \Mit iif I'xi^'cnt nnlori'd nynn theainilication ^^ ^i
On tlie taking of
shfviti' (if the Cduntv
f an ni<iiuMiti.,ii l,cf„f^. ,,
y iif Ontario, a ,y,t ],..u
yH,,
f ^, . .,, X i r ■ f-if 1 ■'■• ilio sum of f24r> IOh. (111. was iiiiivcl 1, n
of tl.f i.roHfcuK.r, without it l.Hi.g aim icd for l.y .,,^^^, „f ^j,^. ^^.^j^ ,,,„, „„ t,,^, .,.,.. 1, .,^ ' « tl,e
theattornuy-gt!ni;ral. Jtix \. Klmd, iaj'. I'JO.
EXONEKKTUK.
-SV(^ Hail.
EXPRESS COMPANY.
I. (.'lINVEYANCE OF (lOODH BY— (S'ee CAHR1EB.S.
( 'ontrat't with an cxjirt'ss comiiany to carry ami
jirusent notes for iiayiiicnt — I >flivery to notary
— Failure hy notary to notify endorser of iioii-
pavnient — (.'oiniiaiiy held not liable. Mi<Juarrii'
x/ranjo, '21 C. P. 478.
A parcel wa.s left with an express company's
agent, e. o. d. The contiignee lived heyond the
express company's limits. The parcel was re-
ceived liy the agent witliont objection, and for-
warded liy him, and delivered to the consignee
witlioiit the sum due being collected : — Held,
tiiat the coiniiany were liable. Bcinutt v. VkbrK,
Vl L. J. N. S. iVl.—i). C— Ardagh.
The extent of the authority of an agent of an
expiess company, and the liability of the latter
under the circumstances set out in this cuse, dis-
cussed, lb.
EXTENT.
Whore in the execution of a writ of extent the
Counsel for the crown, considering the property
returned by the tiiiding of the jury to be ample
to cover the crown debt, designedly oaiits
projierty sold before the execution of the writ
l)y the crown debtor to bona tide purchasers for
value, and on an application subsequently made
to (plash that writ of extent a';d issue a second
^\rit of the same teste as the fonner writ, in
order to seize and make contribute the last men-
tioned property, there was no reason suggested
for allowing the application but the fact that the
crown delitor appeared from the books of the
county registry ojtice to liave been possessed of
other projierty than that returned, the applica-
tion was refused. l{<<jin<i v. Murriquhl, 7 L. J.
18.— P. C— Pdchards.
Poundage is recoverable from the defendant
upon a writ of extent. lif<i'ma v. Pattern, 9 Q.
B. 307.
Otliei' expenses attending the execution of the
writ may also be recovered on application to the
court or judge in chambers. //>.
A writ of extent having issued on behalf of
the crown, on athdavits not distinctly stating
that the debt was in danger, but shewing the
exact state of the affairs of the debtor ; upon
motion to set aside the same : — Held, that the
insolvency of defendants was plainly inferable
from the facts stated in the atfidavits, and the
rule was therefore discharged. lici/iiia v. T/n'
Port Wlilthij, cOc, Road Co., 13 C. P. 237.
^V (if tllf in,,„j,;
tion H. ajiproiiriated tile iiKineys liclnn.-iiL /
the defeiKiants in his hands, in oitainijavm ,.'
on behalf of the defendants, wliidi m^s 1",,,^ i'
H. 's counsel, (thougli not stating lie «-,., i,,,,,,.,,'
iiif,' in his belialf) desired to cin>si:.\iiiiiiiu tU
witnesses and to put tlie(|iiestioii tiMimni tl,,.,"''
" JIow much does the said H. imw nwctliccu'
Iinny?" which the sherifl' refii>eil tuiillnw o,
ain>!ieati(in, on this ground, to set a.-idc tiicin'
(juisition so far as H. was concerned in tin,!;,,]
him indebted in the amount .ibove Jiiinti.innl.
— Held, that the (juestion aft( r the iviiliiu,. jj
stated was given, was asking the MitiusstiMlr.iw
a coiielusion of law upon the facts alaaily pidvcil.
and tliat tlie refusal to allow it Ma.^ no i,'riiiiiiil nj
objection. Riijimtw Tin I'mi Wlii/hi/iiml Lnl;,, ,
Sriii/iiii, S'niicoi', ami Jliiran J!i,wl '('0 /,,
y///.-7,//(, 13 C. p. 318.
The Port Whitby, &c., Itoad Co. I,uiiij;iii4i,t^,i
to tile crown, a writ of extent was is^iiiil mnW i
18tli December, 18t)'2,aiid was ]ila(.viliiithfhaiiiij
of the sheriff on the lUth, and iKiticu thcn-.ii
was given by the sheritf to delemlaiit, ilirwt-
ing him not to jiay over any iiKnnys. Tlie |
iiKpiisition beg.an on tlie 2.'Hi'il. ( )ii that dav
before the proceedings coiiiiiieiii'nl, (lulVii.LinV
who was indebted to and an otlicer of tlif niiii'
paiiy, paid over what he owed tlieiii in [lav-
nieiit of the debts of tlie said cmiiiiaiiv, chyyl
to their officers:- Held, 1. That trniirtk. facts j
of the case collusion might be inferroil ; :'. TliatI
even if the money luul been jiaiil liffi.re tul
impiisition began, still the writ wmiM privail,!
for the in(juisition as a judii.i:d act w»iiM takej
effect from tlie earliest iiionieiit nt tho iliyj
on which it began. Ri'i/imt v. Ihiximi, 13 r I
P. 48;-..
Held, 1. That a debt whereon to fiiiuiil a ffritl
of extent may be found on ininii.>itioii witliuuy
viva voce testimony. llni'iiKt v. l,'iiii'niM,ii,,i
P. K. 175.— C. L. Chanib.-' (ialt.
2. That an athdavit of danger is sutlicient.ifil
satisfy the judge to whom the a|iiilK-atiimfrtr|
Hat for a writ of extent is iiiaile. that there 1
danger that the debt will be lust if iiimittli:itj
remedy is not granted. Jli.
3. That it is not an irregularity, that an
quisition finds that the dcfciidaiit was a dilti
to the crown on the 20th .luly, the iii()iiisitii
being tiled and a writ of extent issuiii}; oiitl
21st of July. Ih.
4. That the rule which prevents a civil remeilj
being taken whilst the prosociitidii fur the felon]
which is the foundation of the actiuii is nut c
eluded, does not apply where the emwii, andiii
a private person, is the iilaiiititi'. /'/.
A writ of extent was set aside hy juilgi
order, and it was ordered that anotlier w
might issue upon the tiat for, ami tosteiias
the date of, the former writ : - Held, that su(
order was unobjectionable. I'l'ihid v. J/c.\(ii
30 Q. B. 47!t.
Held, also, that the affidavit set nut in
rejiort of this case, ujion which the writ issiii
was sufficient, and that defeiidaiit was sutlicieiil
I shewn by it to be a debtor t(j tlie crown. lk\
iiiiinisitic'ii lii'furi; tin
niitario, a lUilit liy H.,
(ill was in-civcd at till,
the (lay uf till' iunuin.
,f iiKiiii'ys lii'luiij^iii^. t„
u\h, in I'l'itainiiiiymtuts
lilts, wliidi \v;is [ipivul.
t statin;.' In- was iipjuar-
.m1 tn cruss-cxaiiiiiii tW
KlUl'XtioU tddlH'lif tluiu,
[liil \\. iinw uwi' the I'l.in.
tl' rcfusi'd tn alliiw. (Ill
mil, to xft ,'i^iik' till' in.
•as oiiiK'cnu'il ill timW
Kuiiit aliuvt' luentiiinul ;
nil aftir till' cviiU'iK'!; M
skiiig tin: witi'.isstuilravf
1 tllL' facts ulK'(lily\il(ivi:il;
alliAV it was no gruuiulMf
7(( I'orl W'li'.tl.in'mlLiih'
llurilll li'iillll I'll, In ,;
i.,Roa(K'o. liiiiiiginiWtol |
f extoiit was issiuil mulie |
ml was iilai-'ciliiitlii'liiiiuls I
lUtU, ami niitii.'i' tlidtui
L'ritl' to ilflfiiilaiit, ilirnt-
over aiiv luniays. The
tlie '2'An\. ( )ii tliat ilay, |
.<» coniim-nfi'il, ilulVmlaiit,
anil an nllicor nt thc-oiiii-
lit lit' owimI tlifin in \m-
' the saiil cuiiiiiaiiy, i.liiidyj
hi, 1. 'I'hat I'll nil till' fwtsj
night hf iiiUrri'il ; '-'. Tktj
hail hei'ii y.M M"n tliej
ill the writ wnuM \in\nU
3 a juilii.'ial act wmiM taUl
liest iiKiiiifnt <if tlw ilaj|
]{i'ii'iiiii V. JIikIi'ii, 131-
lit wlifiToii tn [iiumlawritl
[iinl oil iniiuisitiniiwitiMutI
J'lijiiKi V. IliijJniA'm.t
laiiib.-tiiiit.
t(if (langcrissiitiicieiit.ifil
Vvlnmi the ainilK-itiimkl
ont is niailc, ttiat tliiTe m
will be lost il iimiitiliatf
lau irivgularitv, tliataiiiiii
lie defeiiihiiit was a ilMi
J -iOth -hilv, thciiuiuismol
|it of extciit issuing nn tin
hiich iireveiits a civil riiiieifl
|e iirosecutioii tnv thtk-lnnj
Ion of the actimi is nut ooij
ly where the crnwn, m\A ii(j
Tie plaintiff. /''•
] was set asiile hy ]^¥
lirilered that aiiothw wd
lie tiatfur, ami tostalasJ
ler writ:--HeliUbH
Inahle. /,'i|/;mi v. .IM-'*!
0')
Heltl, tl''^' *'"' ^'"''* ***''^''^
Vict 0. 1". *•• '^"' '*■• '^'"^'*
mjiitliecidwn the renieily
kmil given hy a postniiistur.
EXTRADITION.
l.-)10
by e
.\et of 18(J7, 31 i
not take iiwiiy i
extent upon a
Ihe ath.lavit sot mit in t
• writ ijsiia
,i'icn|
lilebtortotlieci-uwu. /M
ine aiim.»>" ■-■
Ivoii which the wn 1*1
lit.lefenilaiitwassutlii'ici
EXTOIITIOX.
Si'f Crimi.nai. Law.
KXTKADITION'.
1, CoNsruucnoN ok tiik Tkf.atv, 1509.
II, EVIDEXCK AND PkocEDLKK, 1511.
I. (.'ONSTIUITIOS tlK THE TrEATV.
Htlil, tliat the Ashbnrtou treaty eoiitaiiia the
^liiilo iif the law of snrreuilev as between Canada
Mil the U. S- ; the S Will. IV. e. ti, being super-
■ jeiieil hy it, and the Imperial Aet (i & 7 Viet. e.
"6 iunriiriiviiicial statute \'2 Vict. e. 19; though
in relation tu other foreign powers, with whom
notreatyor conventional arrangement existed,
tit 3 Will. IV. 0. (), is still in force, linftiia v.
pin', 1 P. 11. 98.-0. L. L'hanib.— Maci'iulay.
Qiiare, Imw far the United States, T^iwer
Caiiaila. "r K'lgland, would respect the .S Will.
I\', c (), if a fugitive surrendered by Upper
Caiiaila to a foreign power were taken through
those countries. //'.
Hclil, that though the surrender must be by
the executive guvernment, yet a party eominitted
mler a magistrate's warrant may apply for a
hakas corpus, anil the court or judge may
dttermiue whether the case be within the
treaty. /''.
HeM, that the Ashburtoii Treaty as to the
Hirailitiou of fugitive felons, and our acts passed
to me ed'ect to it, extend to Britisli subjects
inimittiiig the ofi'ences named in the treaty in
the territory of the United .States and becoming
fugitives to Canada. In re Bnrlii/, 1 L. J. N. S.
I».-Diiggan, lin-unhr ; ,S. (.'. Jh. 34.— C. L.
Chaiiil).— Draper.
Jn.lges are hound to consti ae the treaty in a !
ileral and just spirit, not labouring with legal j
nteuess to find tiaws or doubtful meanings in [
litswnnls, or in those of the legal forms reijuired
[or carrying it into effect. Be Burlnj, 1 L. J. N.
IS.J1.-C. L Chamb.— Hagarty.
Remarks on the propriety of giving a liberal
teqiretation to the extradition treaty, and the
ivlei|nacy of its provisions to meet the class of
lekmits of most eoinmon occurrence iu both
mutries. linjlna v. Morton ct al., 19 C. P. 9.
X. king a slave in the state of Missouri, be-
r' ' g to one M., had left his owner's house
the intention of escaping. Being about
i from his home he met with D. , a planter,
forking in the Held with his negroes, who told
V that as he had not a pass he could not allow
n to proceed, hut that he must remain until
liter ilinner, when he, D., would go with him to
feadjoiuiiig plantation, where A. had told him
lit lie was going. As they were walking to-
Ns D.'s house, A. ran off, and D. ordered his
slaves, four in number, to take him. During
the pursuit D., who had only a small stick in
his hand, met A., and was about to take hold
of him, when A. .stabbed iiiiii with a knife, and
an 1). turned and fell he stalilied him again. D.
soon afterwards died of his wounds. Hy the
law of Missouri any person may Jipprelieiid a
negro suspected of being a runaway slave, and
take liim before a justice of the jieaee ; any slave
found more than twenty miles from his home is
declared a runaway, and a reward is given to
whoever shall appreiieiid and letiiin him to his
master. A. having made his escape to this
province was arrested here upon a charge of
murder, and the justice before whom be was
brought having committed him, he was brought
up in this court on a habeas corpus, and tiie
evidence returned under a certiorari. It was
contended that as A. acted only in defence of
his liliertVi there was no evidence upon whiili to
found a charge of murder if the alleged otl'eiice
had been committed here, and that he could not
be ilemaiiiled by the treaty :— Held, tliat under
the Ashburton treaty, and our statute for giving
effect to it, V. S. ('. c. 89, the prisoner was liable
to be surrendered. McLean, •!., diss., and hold-
ing that the inforinatioii, warrant of commit-
ment, and evidence (to wliicli no objection was
taken on argument) were iiisutlicieiit : that if
the charge bad been clearly made out, the case
was not within the treaty' ; and that the prisoner
therefore was entitled to his discharge. Jii re
Aii<ln-:<,w, 20 Q. B. 124. Sec .S*. C. 11 C. 1'. 9.
Held, that a person convicted of forgery or
uttering forged paper in the L'nited States, who
escaped to Canada after verdict, but before
judgment, was liable to be delivered o\'er. In
'/•-- Wiini,;; 1 L. J. X. S. l(i.— C. U Chamb.—
Hagarty.
A British subject committing one of the crimes
enumerated in the treaty within the jurisdiction
of the l'nited States, and afterwards tleeing to
Canada, is subject to the provisions of the treaty,
which jirovides for the surrender of " all per-
sons" who being charged, &c. In fi' liurhij, l L.
.T. X. S. 34. — C. L. Chamb. — Draper, llichards,
Hagarty.
Lawful acts of war against a belligerent cannot
be either commenced or concluded in a neutral
territory. lb.
The fact that the person is charged with piracy
committed in the foreign country, ought not to
prevent the government of the country where the
fugitive is found, from surrendering him on the
charge of robbery made and proved in the latter
country. Ih.
When surrendered to the government of the
country from which he tied, the government of
the latter are bound to try him fm- the offence
for which he is surrendered, and not for any
other or different offence, lb. — Bichards.
Burglary is not an offence within the treaty
or the statutes passed to give effect to it. In re
B<ebe, 3 P. B. 273.— C. L. Chamb.— Morrison.
A prisoner was arrested here for having com-
mitted in the United States the crime of forgeryi
by forging, coining, &c., spurious silver coin,
&c. : — Held, that the offence as above charged,
did not constitute the crime of " forgery," within
the meaning of the l'2xtradition Treaty or Act.
Definition of the term "forgery," considered.
' 1
14
I.!
l.-.ll
KXTRADITTOX.
lip
Iiiro S,„;ih,\ v. I!. -.Mr.. ('. r.. Cliaml.. A.
AVilsnli.
llclil, tliiit ;i w.irnint fliiiryiiig tluit tliu ]iriH-
Olit'l'H '"ilid I'vldiiiiiiisly sliiKit lit, kc, with iiitiMit,
&c., t(i Uill iuiil miii'dir," siillii-iciitly diargi'il an
"iiHuault with iuti-iit to <(iimiiit iimnlor," tlio
Wdids usi'<l ill till' tri'iit\' ami statute Unjiiiii v.
Jtnioil III., l I'. 1!. --'SI.-' (\ 1-. t.'liuiiil).- Dniiiur.
Tilt; prisDiicr was charj,'*!!! witli as<M/iiilt with
inti'iit ti> ciiniiiiit iiiiii'dci', in tliat lit: hail o|H:iit'<l
n railway switch, with iiiti'iit to I'aiisi; a rtillisioii,
Avlu'i'oliy twi) traii?s iliil I'niiie iiitocollisidii, caus-
ing a s(!vcn' injury to a ikthihi on onu of them :
- Milil, that tliin wan not an " aHsault" within
tlie Htatiitf. //( /•( Lrii-is, C, p. 1!, •_>;<().- -U. L.
Chanil). — (iwvnne. j
II. llviliKMK ANI) I'lilUKlilUK.
IFilil, per Sullivan, .J., that n]ion tlio fiu'ts, set
fortli in till! jiiilunK'nt, the piisoiicr, who liail
buen coniiuittoil tor cxtrailitioii by the mayor ot
Toronto npon an alleged eiinii' ot' forgery, had
been eonmiitteil n]ion in.sullieient evidence, and
niUfit be diseliaiged. /ii lU: Kiriiiiilt, I ('. L,
Clianib. '2'tli. — SuUivau.
Quieiv, ran a eonimittiiig magistrate ih^tain a
prisoner upon e\ideiiee amouuting only to a
ground of sus])ieion, for the purpose of other
ovidonce being imported into the ease so as to
bring it within the treaty. /I>.
A jirisoner eliarged with forgery in ('aim<la
was arrested and surrendered by the government
of the I'nited States luideitlie Asliburton treaty.
Upon apiilieation for bail on the ground that
there was no evidence of the eoi'ims delicto : —
Held, that the surrender of the prisoner by the
United States govi^riunent was sutHeient evi-
dence, lirijiiui V. I'diiAi rnicni, 4 C. P. 288.
Held, that it is in the disi;retion of the magis-
trate investigating into a charge under the treaty '
against a ])crson aecnsed of one of the crime
mentioned in the treaty, to receive evidence for
the defence. />i n jiiir/ri/, 1 L.J. N. S. I'O.--
Duggan, l!i<-in-ih-r.
Per Piehards, t'. J., the judges of the superior
courts in the country where the fugitive is found
maj', on a writ of habeas corpus and certiorari,
consider if there was sullicient evidence before ,
the committing magistrate to justify the com- t
mittal, and so may rexiew the decision of the
magistrate on the evidence. .Sed ipuere per i
Hagarty, and .lohn Wilson, .1,1. lii- Biirlti/, 1 |
L. .1. N. S. U.~V. L. ('hand). ; /.V Wunier, '[ L. '
J. N. S. 1().—C. J.. C'hamb.— Hagarty. {
The duty of the court or a judge on a habeas
corpus, is to determine on the legal suliicieiicy
of the commitment, and to review the magis-
trate's decision as to there being sufficient evi-
dence of criminality. /iii/iKii v. Hi-do, 4 P. P.
281.— ('. U. Chamb.'— Draper.
The magistrate cannot weigh conflicting cvi-
deuce to try whether the prisoner is guilty of the
crime charged. //*. ; /.V Ihirh'ij, 1 L. J. N. S. 20.
The magistrate should not go beyond a bare
enipiiry as to the prima facie evidence of crimi-
nality of the accused, and shonhl not eiupiire
into matters of defence which do not affect such
criminality. In r<- Caldivell, D 1'. 1!. 217.— C. L.
Cliamb. — A. Wilson.
Ifehl, that a warrant of I'onnnitiiifiit issiu,!! .
a magistrate under the treaty and mir ,t„',„'^
('. S. (". c. SO, which used tin", w.mi. 'Nli'i ' |'
fully, maliciously, and feloniously stall. inii i-n'.
and omitted the words " niurdi'r," and 'J.'i
nialicc,aforctlioiight,"an(lcoii,iii(l|.(l l.y iiwtniCt'
ing the gaohir to "there safely k, ,.|', him ,',
prisoner, until he shall be thence dilivrMl I,'-
due course of hiw," did not come witliii, tli
provisions of the treaty or statute, and wast„i"'
seipUMitly defective. //( /v Aii'li riun, lie i'"(!
Held, that when a prisoner was br(iii;:ht 1,(.|V„,,
' ' ',' . l'l"lMlll,liT
warrant ot coniiiiitin,,iif „|„,|,
the court uiion a writ of habeas
our st.itutc, tin
whiidi he was detaiiie
, . . , iiM'cariiigoii it, I'ii,,,.,,,
be detective, tlu! court had no autliritv to v.
maiid him, such powci' only liciiig ]i(i.s,<t'ssi.,l liv
the court at coinnion law, and tiic'prisniu.r |„>
being charged witii any oll'cncc tor wjii,.!, i',',.
could be tried in tiiis [iroviiiee. /I,,
Held, that a magistrate, acting niukt tli.
treaty and statute, after issue of a writ nf Iml,,;,,
ciirims, but before its ivtiirn, iiiiglit clcliw-r t,,
the gaoler a second or amende'd warrant, wiii,],
if returned in (diedieiiee to the writ, iiiii,t ),',
looked at l)y the court or judge beiore wliiiin [|,p
]irisoner is ))roiight. /// n- As/k r IWi,;,,,' j I
.1. N. S. K;. ('. L. (hanib. Ilagartv. ' "
Where the accii.seil, on his exainiinitimi l,^.|■„f^.
the magistrate, admitted the acts charj^cd, Hi,i.li
prima facie amounted to roldiery (one ni tlic
ci'imes enuniei'ated in the treaty), ami alk^'cil liy
way of defence matter of exeusi' wliiidi wasnta'u
eijiiivocal character : Held, tli;it tile ni,ii.'istmte
could not try the ease, Imt was bound tiicuniiiiit i
the accused for trial before the trilmiiuls nf the
foreign country, /ii rr lliirlii/, 1 L. ,]. X. S. ;)4,
— U.^ Ii. Cluunb. Draper, Kicliiirds, Ila^'aitv!
J. Wilson.
Tf the magistrate sitting on a similar I'liiirn' if ;
eonnnitted in Canada woniil commit fer tii;if. he
is eijually bound to eoniniit for trial in tliefiiivi:ii |
country when the oll'cnce, if aiiv, lias lietii phh.
mitted there. /'-.
The warrant for coniniitt.d till sunviideivdj
under the treaty need not set out tiiu cvidtii'-el
taken before the coniinittiug magistrate, iiMrj
show any previous charge made in the fureii'iij
country, or reipiisitiou from the goVLniiiieiitiil]
that country, or w.arrant from tiie },'(iveni"r.|
general of Canada, authorizing and reiiuiriiigthej
magistrate to act. Jh.
The adjudication of the committing niagistnitej
as to the sulficicncy of the evidence fiireniiiiiiittali
may be by way of recital in tlie warrant nf oiiii-'
mitment. ///.
It is not necessary to tlie jurisdic'timi ol }1
magistrate in Canad.a, acting under tlic tivatyi
and statutes, eitliei' that a charge sl'niihl he
first laiil in the United States, that a iv(|iiisitiiin|
should be first made by th(> govi'rmneiit ni tliei
United States upon the ( 'anailiaii guveiniiieiit, oq
that the governor-general slii)nld lirst issue hii
warrant reipiiring magistrates to aid in tlie arj
rest of the fugitives ; in other words, tlie ebarj,"!
may l)e originated before the niagi.strate in Can*
ila. Ih.
It is not necessary, underthc Extraditiim treatjj
and Act, .31 Vict. c. 1)4, 1)., that an crigiii.-il wai*
rant shouhl have been granted in the I'liitei
States for the apprehension in this coimtty of tli
ilUlllitllirilt i«siic,\liv
■iity ami nin- ntiitut,",
tile words "iliil yf\\
linii.'ly stall. ui,! kill,"
imnKr," ami "witi,
iiii.'liulfil liy iiiHtniit-
sal'oly kicji liiin, the
tlll'lll'l' ill'livi'l'tij l,v
nut r(iii\e within tlw
statutt', ainl was nn,.
Aiiili rKiiii, 11 ('. r, SI,
iiT was liriiiij;ln luiVirt
halii'as ■•ui'ims iiiiik-r
Clf IMllMlllitllK'llt lllKill
ilicariiiL; mi its l;wt»
ad nil aiitlirity t" iv-
ily licini; jmss^'ssi'd liv
■, and tlu' \ii'isiiiu'r ii.,t
olVi'uci! I III' wliii'li li,.
ivini'u. /'i.
iitc, ai'ting unilor tli..
ssilu of a writ nf IiiiIkms
turn, ini^lit ildivc-r ti
ii'ndi.'d warrant, wlii.li,
,' tu till' writ, imi>t In-
• judge lii'tori: whiiiii tk
, ri A-iIk r W'linin: 1 1..
ml., llagarty.
1 liis cxaniiiiatiipii \vh<r<:
. till' acts I'liai'm-il, wliK-li
til riililii'i-y Iniiu III' till'
,e troaty), and ;ilk';;eil liy
I' exnisi' wliii-li was lit ail
hdd, that thf iii.u'istriitt
lilt wan 1m mild til I'Miiiiiiit ■
'iiro till! triliiiiials nl tlie
liiii-lni. 1 I-. .I.N. s. ;u.
lor, Itiidiards, Il;i-;uty,
ii'i I'll a I'iiiiilar i.'li:ir^f if
li.iild iMiiniiiit tnr ti'iiil. lie
liiit t'nr trial in tliofiiri-iau j
_', if any, lias Iil'Mi oiiii-
iiiiiittal till siinvniliivl!
Lt .si.'t iiUt tlio rviiUli.ii 1
Imittiu- inagi^^triito, iinrl
iiiaik' ill tlio I'lirtiniij
Ifroiii till' giiVLniiiii'iiti'il
uit I'nnn Hn' ynviTinT-
|ori/.iiigaiidi-eH"'""e'''*j
|iociiiiiiiiittiii,L;iiw::i-^tnte|
111' L'vidoiii'i'fiiri'iiiiuiiittalj
111 in the warrant ct r-i:i-j
Ito the jurisiliitiim -i a]
laetinj;- under tlu' ti'iatyl
[lat a iliar-e sl'"uW ''SI
Istates, that a n'i|iiiMti.ial
the ;(iiveriniieiit nl tlir^
'anadiangoveriiiiioMt.rtB
|al shoulil lirst issui- lii^
^trates to aid in tlio ar|
. ;ither words, the iharij
jc the magistrate in Can*
(lorthcExtra.lition treat]
In., tliatanongniiihva"
,-ranteil in the I ime(
bioniuthi.souuutryi'itl*
I'll 3
FACTOR.
>1(
,1 a.eii.sed, to eiialile lirneeeillllL's to lie eireut- j
IK' taken against luni ui tins iinivmee lor an
"i„:,,.e' within the treaty. /// ,- r„/,/„r//, ,■> I',
„ .M7 -('. L. Chanili. A. Wilson.
I'viileiioe of aeeonipliees is Hiillieient to
Thf
[I! for the iiiir|iiiMe.s of extiaili-
eiiWlilisli a ehargi!
tiiin. /''• . , . . I
Where the eriiiie eoines w itliiu the treaty, it is |
iiiuiiiitL'rial whether it is, aeeording to the law.s
till' I'li'ti''^ States, only a niLsileiiieanour or
,1 iciiiiiy'
//-.
Wlure a |irisoiiur in eiistoily under the Asli- i
liiirtiiii treaty olitained ii lialiuas eor|iiis and eer- ;
t'liiWi-i I'er liis discharge, it was held that the
,ir|,'iiiiii;nt as to the reguhu'ity or irrei^iilarity of
tlie iiiitiatiiry iiroeeeiling.s, siieli as inforniatioii,
wirriint, fi'''< "'■^'^ •' uiatter of no eoiisei|iienee,
tlif uiiterial nuestion lieiiig whether, lieiiig in
ciistiiilv. there was a silllieielit ease niade out to
iiijtitv the eoiiiniitnielit for the crime eliarj^'ed.
Itw.isheld, that eertilied eojiies of deliositious
,wiii'ii ill the I'liited States after |>roceeilings
li,,l lii'i'U initiated in (.'anada, ami after the arrest
ill I aiuiila, were adiiiissilile evidence liefore the
,„lito iiiagistrato. h'.r j>itr/<' Afitrthi, 4 L. .1. \.
!, IDS,— L'. I„ Chiiuil). -Morrison.
The authority of the inigistrate need not lie
ilifWiiiin the face of a warrant of coinniitiiient,
aiiil wlure the crime has lieeii committed in a
foriigneimiitry, and the eommittiiig magistrate
jjj, [;;j J[c.M. "had in this ease), .jurisdiction in
fvjiiv oiuiity ill (tntario, the warrant is not lnul, ,
tlidU'h dated at 'rormito, the coiiiit,v nieiitioneil
ill thf margin being York, but directed to the
j^,n<t;ililL's, °&e. , of the county of Essex, and
btiiw sii'iied by the poliee magistrate as such for '
tlif county oi Kssex. Itcijiitu v. Riiki it uL, 4
' p [I '.isl.— C. L. C'liamb. — Dniiier.
I'liilorSl Viet. c. !U, D., the last Kxtradition
Alt, all that the committing magistrate or the
i cinirtiira judge has to do is, to determine whether
i tilt eviilfiiee of criminality woiilil, aoeording to :
I tic laws "f ( liitario, justify the aii]irelieiisioii and [
cuiiiiiiittal t'lir trial of the accu-seil if the crime
I Lvllicen ciiiiuiiitteil therein. //>.
Mall ik'eisioii, if adverse to tlie]irisoner, does
I iiiitiiiiii'hiileliiiii ; as the iiuestioii of extradition
or .lischarge exclusively rests with the govornor
1 jiciicriil. /''.
Kviilfucc iitVered to a magistrate by a prisoner
lonau exauiiuation of this kind, by wa,v of aii-
I swer til a strung iiriuia facie case, nia,v jierliajis
1 priil«rlY he taken, but wouhl not justify tiie
I magistrate in discharging the prisoner. And,
juart, whi'tlier it was not the iuteutiou of .SI
IVitt. til transfer to the governor exclusivel,y the
I Misiiluration of all the eviileiiee, that he might
kii'iiiiiiu whether the prisoner should be ile-
I tveivil u)!. I li,
I'mler the cireiiiu.stanees of this case, it was
[hdil that there was. sutlieieiit prinul faeio evi-
Utiirtiif tliceriiiiiuality of the prisoners to war-
[.Mt a refusal to discharge them, aiul that there
I f.is eviik'iice to go to a, jury to lead to the eou-
Icltsiuu that the intent of the iirisouers was, at
jfctimeof slidoting, to commit a murder. lb.
Apiilicatiou for the discharge on habeas corpus
Ic'i prisoiiers charged with robbery committed
lintliel'iiiteil States, and committed at Sand-
JTicbiur extradition i)y Mr. McMieken, a police
I magistrate appointed under '28 Viet. e. 20. The
prisoners, it seemed, h.id been previmi.sly arrested
at Toronto on the same charge, .ind been ilis-
ch.irged by the local |iolice magistr.ite, after a
lengthened investigation bet'oie him : Helil,
that this did not previiit .inother duly i|iialilled
ollieer from entcrt, lining the rharge against them
on the s.aine or on fiisU m iteri ils. Meld, also,
that see. 'A'li of 2'.) \'ict. e. .")!, did not preclude
.M. from taking the iiifornrition and issuing his
warrant in Turoiito. wlnr • there was already a
police magistrate; for thit the words of the
section merely exeludi'd him from jurisdiction
there in local eases. Held, also, that the appoint-
ment of .\l. might well iiave been inade under
2.S\'ii't. c. 20, for any one of or for .ill the rounties
of I'pper Canada, ini'luding Toronto, and his
jiowers made the same .is a imlice magistrate in
cities, except as regarded purely mnnicipal mat-
ters ; and that this act was eoiitiniied by 31
Viet. e. 17, s. 4., (). ; but that as nothing was
suggested impiiL;ning his autlmritv to act, the
warriiiit must be tre.ited as exernted by an oth-
cer possessing such authority. Held, also, that
the depositions on wliii h the wai'rant issued ill
the l.'nitcd States after the arrest in Canada,
were pro|ierly adiiiitted here as evidence of
criiiiinalit,\', their ad mission being within both the
letter and spirit of the .'il \'ict. c. !I4. H'lfniiiv.
Mnrfnil ,t ,ll., lit C. I'. 10.
If the evidence present several views, on any
one of which there may be a conviction, if adop-
ted by the jury, the court will direct extradition.
Ildjiim V. (loiild, 20 C. I'. I'll.
ruder HI A'ict. c. 04, the de|iiisitioiis must bo
those upon which the original warrant was
granted in the United .States, eertilicd iiinler the
hand of the person is filing, and not deinisitions
taken snbsei|iiently 1 1 the issue of the original
warrant, and without any apparent connection
therewith. I'lii'mii v. J'u'iin.sdii, •> V. I!. 1<S1). —
( '. L. Ch iiiib. - Morrison.
In extradition cases, the forms and technicali-
ties with which the statute surrounds the pro-
duction of affidavit evidence must be strictly
complied with ; and therefore. Held, that depo-
sitioiLS taken in the I'liited States cannot be read
uiiles.s eertitied under the hand of the iiia,gis-
trate who issued the original warrant as being
copies of the deposilimis 11)1011 which such war-
rant issued, although ;ittcsteil by the ]iarty i)ro-
ducingtliem to be such true co]iies ; but, Senible,
the prisoner iiiight be reininiied to enable Jiro-
]ierly eertitied copies to be produced. //( re
Li:iri«, (J r. 1!. 2.Sli.- -(". L. Clianib. ~(!wynne.
EXTIIA8.
T. Is Rrii.uiMi CiiNrnACT.s — ,?(•<■ Wouk and
Lahoi.k.
. FAGTOU,
Se( Commission Mi;iiri[ANTt>.
The defendants, as factors of one W., sold
wheat to the plaintifl', who subsyquently obtained
an award in his favour iu an arbitration on a
separate transaction between himself and W.,
to which defeudanta were not parties, though they
' f""
1.T15
FKNTKM.
m
m
> i
actively intervonoil n« \V. 'h ngoiitii. Fii ftn actiim
of nMHiini|iMit liy plniiititl' to recover a liiilftiu'isiif
nci'imiit : Kcld, that he wum not ciititliMl to in-
cliiiU^ ill liiM ilt'liit a|,'aiiiNt the ilcfoiiiliiiitM tliu
niiioiint of the Hiiiii iiwanliMl to liiiii iin a^'HUxt
tli.,iii. ///vni «/•;// V. A'/;///.// (•/ ((/., (I V. V. M'.i.
Ciu^C lii'iiij^ the li'HMi'i- of a <'oaI yard ami
|irriiiim'.s, auMijiiiccI tlu' |iro|pcrty to S. A- II., wlio
ai;rcc'il to icci'ivi' iih wiiicIiouhciih'II tlicri'lii kikIi
wood and coal an ( '. iiii;,'lit dc]iiinit, and ^raiit
him warehouse reci'ipts tiu^rufor, in coiiKidera-
tioii of which li(^ ajirecd to jiay them two and a-
halt |ier cent, on the v'diie of hiicIi g Is, and
to Kive them a lirst lien therefor. < '. continued
to hold iKissexMidii iif till' IHCIiliNes as liefiire the
asHi^'iiiMcnt, no visilile change lieing iiiudi^ ; his
Fiign leinained up, he liroiiglit in and tixik out
coal as he iili'ascd, and he was to pay the rent
and taxes ; Imt S. iV M. entered from time to
time to see that there was eiiiiiigh <oal to meet
their receipts, and on Home occasions tiiey pre-
vented iiiin from reiiinviiig more c(ial. fearing
that there would not lie enough for this |iiir]ioMt!.
It was ex[ire.ssly jigreed hetweeii them tiiat all
coal taken out for wliiih receipts had hccii given,
shoulil Jie reiilaced ^^itll other coal. ( '. luiving
lieconic insdlveiit, a (pic.-<lion arose as het«eeii
his assignee and the receipt Iwddcis, ami It. &
Co., mentioned liehiw, as to tlu> right to tlu' <oal
in tho yard. Some of the coal hail lieen sent
to ('., the insolvent, liy I!., to sell for him on
commissinii, after thi^ receipts had l>ceii given,
niitl Were nutstaniling ;- Held, that ( '. could not,
under tiie l-'actors Act, (.'. S. ('. c. 5'.), ]ilcdge this
coal for tlie jiayment of the receipt lioMers : and
that H. was entitled hefnre them to so much of
luH uoal as remained iinsdld. /ii re I'tiliiiKiii, 'M\
Q. B. ,').■)!).
FALSE ni IM JTSOXMEXT.
I. Actions fou.
1. Aijohl-f/ Coil.-ifdlilr.i-Si'i' t'oN.S'i'Alil.K.
2. Aijd'niift iliiiii.tinttci — Si'e Ju.srr('F..s ok
TIIF. Pk.\(E.
3. Trcijn>>ix—Si'i' TiiKsi-Ass.
II. Malicioi-.s Ahhkst — Sec M.\Liriof.s Ar-
hkst, I'no.sKci'TioN-, an'i> Othkr I'lio-
I'KKDINO.s.
FKK.S.
T.
II.
in.
IV.
V.
VI.
\'ll.
VIII.
FAL.^^E I'KETEXC'KS.
See Ckimtnai. Law.
FA LSE \l E PKES i:\TA TT( >\.
.SVe FliAUD A.VI) Ml.SUKPKlXKNT.VTm.N.
FATSE EETUnX.
1. To ExKccTioN.s— iSV<' Shehikf.
FARM CROSSINGS.
See Railway.s and Railway CoMrAxiK.s.
ARIllTltVToHs ,S'..' Al(hlll!Mi„v
AWAKII. "
ArroRNF.VH AM) Soi.KMToli- \,, \r|.„|,
NKV AM) Soi.lriroR. " '
Clkrk of thf. I'k.vck S,, (•uuk „f m,
f'ol-NSKI, - .SVc llAlililsIFIl M I ^„ _
( '( ISTS.
iNiRoNF.H -Sit' ('olii(Si;i(,
Costs (Ifnkuai.i.v ,s',,' Costx,
WirsKSM Fkks.
1. /» Acfloun III- Sui^■^ -Sfr (\isfs~l\,
liKMK.
'2. Al 1)111111. ^ts Sic ('oIioskI:.
ExK('fT()MS~-,V,r Ex Kll- lulls AM. AliMls.
ISTKATORS.
.(rUolt.S Sti' .IlliV.
I'KdIHTRARS.
I. (1/ ('i)iiiiiii'M -Sir liKcivnn |,j,v,
'J. Of' Siirriiiin/r CiiiirU -Sir S|-|;ii,„,j|,
ColKTS.
MIKlilFK Srr S|li;iil|-K.
TUfSTKK.S— .SVc Tlil sTs AMI Till <\\;\.
FEKiNEK i.ssri:.
See Intf.ri'i.dadkh.
Fr.LOW.
L (iKNKKALI.V—.SV/' ClIIMINAI, l.AU.
IL Sr.si'KVSIoN OF AcTiriV l\ ('\»Ksii|. fcj^
ONV — See Action and .Suit.
During tho hushand'H iiii)irisiiiiiiuMit fnrfiliiiyj
the wife can contract, at all events as t" wliitj
might he regarded as gouils ami diiitttis. injl
feme sole ; and Seiiihle, that she iiKiy cxwiitef
a deed of land without her liiislKimi jiiiiiiiiJ
Crorker el kx. v. Sinrilm, H.'i (^», 1>, 'A{)',
FEMi: C()\F.I:T.
.SVe HUSBANII AM) W'iKK.
l.\.
X.
XL
XIL
FEXCES.
I. Generally, \7>\~.
IL Underthe Acts Hesi-wtinc LiskFeni :
AND W.VTER CorH.sKS, 1,")I8.
III. COVENANT.S FOR IlErATRINO AND liKlHIIJ
IN(} — .SVe Laxih.oiu) and Tena.vt,
IV. Division Fences— -SVe Boindarv-LdOi
TATION OF ACTION.S AND 8lTTS.
V. Railway Fences— *»' Railways asj
Railway Companies.
im;
I-'KNCKS.
I .-.18
I. (iKNKK.VI.I.V.
W ARmr\iATi(i\ ^M,
's iiiiiirisdiiiiiciit iiirulnyl
at :ill ovt'iitH as t" wliatj
;c II Ills anil (.■liatti'ls. :b >l
|lr, that sliu may fXi'iitef
[ut licr hiisliaiui iuiiiiii^J
ll'KH L'ofHSF.S l."il8.
Ianiii."1ui ani> Tknant.
bs-,SVcBorNiiARV-Li>il!
lArnoNs AMI SiiTs.
L,S_.SV(' K.ULWAYS AN"!
fcoMI-ANIES.
Triniiii'"' f'"" >"M""""''"K ■*'"' "<•"'">{ l'lnintiU"M
, n |'l,.a, tliat till' liciint'H wtTi' ilaiim>{i' tVao
\ Ki'iiliiatimi, tliiit liy tciwii iiUM'tin^,' it'^nla-
i"i« t'eliot'^ sliiiiilil 111' livf ft'i't IiIkIi, mill that
'u(|,,,,l,v,it'rifriii'i' "lit l"'iii« that lu'iKlit. Imt niiii
luiiailili'<''""'''l'"'''' ""' l''"i"''", "'""'"'•''"■'"'•'l"'''
till 111" iJiMc'iiitii ih'li'Mihiiit'.i cliwr, withiiiit
Idiiiu li'ilgo III' I'liliitt'lit : llrlil, ^'iiiiil
/civ, l/MiruH; Ida. '.'47.
i hi
..Untilf'
'i, ^..iienil'li'i'""'''''
1 |..„,l iiwiiiT in thin roiintry inuHt fciu'c
,^;,,„t I'attli'. SMFnnly. IIMIr, M. T.-J Vict.
lialiiratii'ii, that iilaintill' iiml ilt'lciiilantH iihn- [
j^,„,,l;„lj,iiiiiiii,'iliiw».iii"' that l>y ii'axiiii tin riiof |
,t lur.Ulir thi' illlty 'il' .ti'I'cliil.'illts til kcf|> ill I
jir (111, iliv i^iiiii fi'iKT ; mill ill aimthi'i' iniiiit
it WW i'liiii>;''''i *''''t ilft'i'iiilaiits fur the ."taliiii
ri'.'uiiu Will' I"""" 1 t" •^'•''P '" I'lpiiii' hall' nf Haiil
fiii'i'i lliiil. hiith I'liiiiitM liail, an shi'wiiiy im
[j,,(, fiiini wliiili till' iliity alh'm'il wniiM ai'iTtiii. ;
ihiivre, whi'thii' wiiH'i' thi' iiassiiii; ul' ,S N'ii.'t. c.
•li) aii'ai-'tMii liki' ttn' pivsi'iit wmiM lit'. ("In v.
/W,i«-M/.,!'<v'' H- ■'<'■'•■<•
Trt'spMS II. I', f. will li'' liy till' iiwiur nf a
(l,i« iiitii wliiih a m'iuliliiiur'M iiiu may Im'ak
nil I tutor, ivii'l >'" ihiiiiaj,'!-, a^jaiiist tlu' nwiiiT of
the pi|,'». imh'"-' he L'.'lll fXi-llii' till' ai't I'm' ilrtVrt
tfiiKT-i I"' ii|i"ii ■limit' I'thi'i' sporial gnuiinl.
i//„4'/.«7' ■• .1/;//;:"", ;$<'. i'. :u. ' j
i'laiatil! loil iK'fi'inlaiit for taking liin oattlu. !
I'JKi, justify ai;,' ii'-^ fiirili.-ttrcss ilaiii;i,i,'i' fi'a.saiit mi •
(ktinbiit's hni'l- lti'iilii,';itiiiii, that tlif iilaiutiir
'niiiistil til ililciiihiiit till) laml iiu'iitiiiiu'il in tliu
iik.i, rcsiTviii;,' a right of way aliiiig thi' wt'st
■Ilk' tlu'iviif aii'l till' alli'gi'il tri'spa.ss was thi.'
11,1' iif sucli way. Itojoiinlur, that the trcHjiaMs
was liuyiiuil tho right nf way. Siirii'jiiiinK'i',
tli.it at till' tiiiii' lit till' li'a.'<ii tliuni wa.s a fi'iici'
almii; till' fast Mili' uf the way tn iiri'Vi'iit hiirsi's,
S..,stniviiii<tht'i'i.'friiiii ; ami th.'it ilofi'iulaiit I'livu-
iimti'il iiy till' lease til keeiiMiieh feiu'e ill rejiair, j
liiit ri'Uiiivi'il it, whereliy the jilaiiitiU's liiii'si.'s'
stnyoil I'liiiii tiie way uiiim ilefuiulaiit's l.iiiil. '
Kfliiitter, that the lease cniitaiiieil enveiiauts
jUiiwiui,' the plaiiitilV to enter (in the laml ami
viw the state of rejiair, ami tliatilefeinlaiit wmiM
Miair acainling tn iiotiee : that the jilaiiititl'
Jirctti'd the ilefemlant to remove the feiiee along
tk i-ast side nf the way, ami nse the rails for
iitliorimriiiises, whieli ilefemlaiit, with the jilaiii-
tiff's .issistiiiiee, ami as the aet of the iilaintill',
Kciirilingly iliil ; ami this is the removal referreil
ti iu thu surrejiiiniler : — Held, that ujioii the
tvi'li'iRi;, Set nut ill the ease, the jury were justi-
licil iu liiiiliiig the relmtter proveil liy defeiulaiit,
ulietkr it was a gooil .answer in law to the sur-
rcj^iuder not being a i|Uestioii fur them. The
jury wire direeteil, that if the removal of the
Mtewas the plaiiititrs aet. he was houml, liav-
iiiilthiis thrown open the way, so to use his right
over it as not to injure the defenilaiit's iaml.
Semble, that the iiuestiou of plaintiff's duty in
Ibis respcut was not really raised by the iilead-
iiigs, but that the charge was correct. nh'im
\.Pid(irtl, '.V) (^. K 307. See, also, rickurd v.
iritwi, 2-t Q. B. 410.
Action of trespass to land for removing a fence
in May, 181)8. The plaintiff was a tenant only,
ami his Liiullady swore that she leased the place
to him ill November, 1805, and added, " Plain-
tiJ was my tenant wheu the rails were taken
away, paying ho niiu'h a year hixen and .<tatiitn
Irtlionr. " There was im fm tlier evidence an to tln>
nature of the tuaiii.' or iliiratinn of tin.' tiriii :
Meld, that the damage xlioiild not, as a matter of
law, have liceii iiiiiiiiiial mily, Imt estimated nil
the injury, the loss of the fence Would cause m
the piaiiitiir during; the live or six iiioiiths for
which he then had a right to poKHeMHioii. t"i/ihi>r
V. f/c.d-., •-•7 1^. II. 158.
II. rMU'it TiiK Airs HK.NrKiriM. Link I'kncm
ANli W.VTKK ConiSKH.
[Tlif net now in j'nirif U .17 VWl. c. .'V, O. Tin'
I'lirlirr utiitiitrn irifi' >!,' ]'ict. <: 4'>y "• .' ''.-V. I.'.
('.<'..j7 : S \'M. p. M; ,ii„l .', Will. /!'. .•. IJ.]
The I Will, l\'.i', I'J, for icgiilatiiig line fences,
did not all'i'ct any agi'eeini'iit iinide between
parties respecting division fences between thuni.
L:n„l> V. Miil/inl'/,iii<l. 5 (». S. lOK.
On the ((Uestion of the suHicieiiey of a funco
according to township itgnlatiniis, wheie cattle
are distrained dam.igc feasant, the award of feiico
viewers is eniicliisivc, .Sf.iliiinii \. Hxi/. //, K.
T. 4 Viet.
Ill an action for nbstnicting a drain, the jury
having fimnded their verdict uimii an award
made by the fence viewers: Held, under tho
facts stated in this ease, that it w ,is unnecessary
to prove the regular app'iiiitnieiif "f the fence
viewers ; and that the award was binding under
S Vict. e. "JO. Main,,, v. /'"■</<■„,,•, II (/. H. IKi.
Oefelidants liavinu im]iiiuiiileil plaiiititl's horses
for getting into his licld, the m.ittcr was referreil
to the fence viewers, who awaiilcd that defeii-
dants' fence was law fill, and apiiraised the dam-
age. The (ilaiiititV replc\ icil, ami dcsirid topi ivo
tiiat del'eiiilaiits had put up the fence higher alter
the horses got over, and before the award: —
Meld, that under the .Municipal Institutions .\et,
('. ,S. I'. V. e. 54, sec, ,'li;i), the award was conclu-
sive as to the legalitv of the fence. .S/i(ii-t v.
P«, ■„„,■, I „!., -24 (,». li. li;i;',.
This court had no authority to set aside ,iii
award of fence viewers mailer under ( '. S. V . C.
e. 57. Ill re Vimii i-i„i tt ul., '2') {}. ]\. '>Xi.
I The right of appe.-vl to the judge of the County
, Court against an award of fence viewers, under
H'J Viet, c, 4(i, s. S, is not restricted to an awanl
I made under .see. (I, subs, 2 of the aet, when tho
land beiietited, is in two municipalities, but ex-
tends to an award made by three fence viewers
] under C. S. U. C. e. 57, which the later act
amends, and is made p.irt of. //) cc MrP'<„i,lil,
rl III. V. Cull, III, irl, 1 1 III., .so <,». H. 4:V.i, athrming
j.V. C, 5 P. R. '288.
I In trespass, defendant justified cutting the
ditch coiiiplained of under an award of fence
, viewers, &c. The township clerk produced a
' copy, which he swore was a true one. of tho
j fence viewers' award, the original being in his
I custody : — Held, that such eojiy was admissible
1 in evidence under C. IS. U. C. c. .'<'J, see. (i, these
awards being niaile by a statutable public otKcer
acting in a judicial capacity, and w liich might
affect a large portion of the public, and even
municiiialities. .Semble, per A. Wilson, J., that if
the copy had been one delivered by the fence
viewers under the statute, it might have heeu
received without proving it to be a true copy,
II arren v. Dediiipvg, 33 Q. B. 59.
1519
FIRE.
1520
In an actirm of trcsjinss f<iv pulling down aline
fence lietween plaintitJ's and det'enilaiit'.s adjciin-
ing iireniises in the eity tif Torfmto, it appeared
that the fence had been erected l>y tlie defen-
dant, and was on his own land. The plaintiff
had got the city oonniiissinner to value the fence,
treating it as a line fence, hut no by-law was
proveil, the proceeding wa.s whollj- ex jiarte,
and the award was uncertain : — Hehl, that this
clearlv could give no right. A'/'if/'/ v. J'lf/trs,
25 r." I'. 150.
Quaere, whether an action couM have been
sustained under ('. S. V. C c. 57, sec. 'A, if it had.
not ))een repealed by the 37 Vict. c. "25, (•.. /'*.
■See OUo v. l\liui H uL, 9 Q. B. 303, p. 1517. i
For decisions under these statutes relating
to water courses, — S'-v " Watef^ and AVatkh
Curit.sE.s."
FEXH: VIEWERS.
.V(c Fknces.
FEKKY.
[See 33 Vi<-f. c. 33, D., 30 Vi<t. r. .jS, x. 3S3, vih-n. 4.]
In an action for disturbing plaintiffs ferry, it
is not necessary to pnive that defendant cither
received or claimed any hire or pajinent. Biif-
fonl V. OHi\r, Dra. It. "
The govennucnt of this country has pov.-cr to
grant a right of fcnyou rivcr.ssciiarating Canada
and the L'nitcd States, and the grantee may
maintain aii action against anyone who disturbs
his ferry on the water> over which the ihitish
goveriiii.eiit has jurisdiction. Am'//// v. /.( /'v'.v, (i
(). .S. •20~ ; aliirmed in Ji'ii/ina v. JJann/ini-t, 10
q. B. 411.
A letter from the governor's secretary, autho-
rizing a pers(]ii in the name of the government
to take possession of a ferry, is not sutiicient to
establish his right to tlic ferry, so as to enable
him to maintain an action fur its disturbance.
Jiiiitii v. Francr, (,>. S. 4'JO.
If, in such action, it be shewn that the ferry
is under tlie management of a third person, who
receives tlie ferriage for his own beiietit by ,
agreement with the pfiintitf, the plaintiff can at
most recover only nominal damages. /'/.
The crown grants a right of ferry to A., \\]\u
lensus by writing not under seal to l>. — C dis-
turbs the right of ferry; — Ilebi, that the right j
to sue is in A., and nut in I!. J/ii/'iiiL^v. J/uijiHi,
7 Q. B. 101.
The crown, on the 23rd of February, 1838,
granted a lease to D. of "our ferry across the
river Detroit, from Windsor to l>etr<iit, " during
pleasure, at an aiiiuial rent, payable <pn the 24th
of June. (In the 14th of March, 1843, a jire-
ci.sely similar lease of the same ferry was granted
to B., and it was jn'oved tiiat from that tiinc B.
had useil the ferry greatly to I), 's injury • —Held,
that the second lease revoked the lirst : that I*.
was liable for rent only up to the then last
yearly day of jiaynient mentioned in his lea.se ;
and that he was not liable for the use and occu-
pation had afterwards. /Ay'/'f' v. /;,),•, ,„,, .,
;iOQ. B. 411. '"'
j The crown has a right to grant a li^'ense nf ferry
I across the Ottawa, between Ontario aiuliineln.'
I free from the restrictions coiitaiiicil in (', s V
1 C e. 40, that statute not applying tn .■iUulirias^
I Siiii/h V. Jfiittr, 15 Chy. 473, in apiicil, Hllinuin',
! S. v., 13 Chy. 020. "
! The 9 Vict. 0. 9, s. 1, as well as tlit t.inimnr.
j law, authorizes a person to use his dwn lidat
I within the limits of a ferry for busiia^^s cr iik'a.
i sure, freely and without sliewing his imitivts nr
I occasion for allowing any person to puss in hij
boat, provided such persim be not a travt'lkr
'' anil nothing lie charged for carrviii" h;, y'
I Cairiti, 3 Q. B. 4(!4. ' '
The defendant was held liable uuilcrii Vict.
45, for plying with his stcaml/uat dii .Sini.j.u-
between the city of Toronto and tlic ]itninsHk
persons carried between tho.se [ilaccs imt luiiii;
travellers within the meaning of the (.•xcc'iitiuii
in the act. Jiiijina v. Tinniiuj, 11 (j. H. ciji;.
Particulars ordered in an actinu ini tlie case
for disturbing a ferry, as to the imiiihcr df ^u-
sengers, goods, &e., conveyed. /(v,< v. (W/c;«
1 C. L. Chaiiilj. 8. — ^lacaulay.
The omission to furnish full accoimuiKlationto
any number of persons ollering tliciiiselves t» lit;
ferried over is no defence to an action lur a ilis.
turbaiice of an admitted right. Hh-l.-it 7 \' (uhhf.
.Hlnrc, 10 C. P. 4()0.
IIKVA I'ACIA.S.
S< 1/ Ex E(; I" T K.) .V — S a 1 ; 1 ! I r v.
.S'CC BUII-DINO SoiIETIF.S,
Conviction by a lUcagistrate for olistnictini; a
highway, and order to pay a continuing tine
until the removal of such ob.^tvuetion :-HcLl,
bad. Riijiua v. llulnr, 15 Q. IJ. 5,sit,
The crown may is.sue a ti. fa. for tliu sale ff
lands and goods in order ti) satisfy a tine im-
posed ; and the jierson lined may he said to lie
iiiilcbtcd, and the line to be a delit. Ik'fiM v,
77(1- JJe.'-iarilitis Canul Co., 2t» (J. H. 1(1,').'
The Court of Quarter Sessions lias imwer. in
the case of an assault, to proiioiiuee n jciitcii'.c
t)i tine and costs of prosecution, ami imiirisioi-
inent in default of payineiit. 0(v «s v, 7'";/V,
19 C. P. 49.
FIRE.
I. When an Exit.se for NoN-rKiiFun.MA.M e
OK CoXTKACT, 1.521.
II. Clearing Land, 1522.
III. IxyuEsT, 1524.
IV. Miscellaneous Cases, I.")2o.
V. Ix.suraxce— -SVc In.sikance.
1520
lliijilio V. I)iu;,,jf,(i^
grant a license of ferrv
u tliitarinaiuli^uuliti",
cdutaiiioil in ('. S. r
jiplyin^ til .-iuuli aast.
■;!, in ainn'iil, iittiniiin;;
,s woll as tilt (.iimnKiii
to use his nwn Imat
ry fur Imsiuuss cr i4ea-
shuwiiig liis niutivts "r
y iicrsiiu tu puss in his
son Ik; not a tnvelltr,
I lur carrying, by.* v.
ul lialilf uuilevHVirt. 0.
1 stuanilioat cm Sun4ay
onto anil tho iivniiisuLi,
1 tboM.' plai.i-s nut lirtiij;
leaning oi tin.' uxoujiti.ju |
■;„»;»;;, 11 < J. \>. (illli.
n an aotinu im tlie case
as to till-' inuiiliL-r nf jias-
vcyeil. /'■'■< V. Cii/i;i/,
canlay.
sli full acooniniiiilatiimti)
olVcring tlu-nisulvw t" l)e
CO to an actinu inr a (lis-
I right. ir,rl:l.;iyA:Mj--
Vyl\
FIRE.
(
15
FACIAS.
iKiN— Siii;i;irK.
In lis.
1M; SucllVI'lF.s.
[istrate fnv ,.1 istriatiiig i
1 1 pay a lontiiiuing line
Incli ol).st'nK'tiou ;-Holil,
I, 1.-. q. \>. .">>''-•.
if a ti. ta. fur the sale f'i
]lor to satisfy a line im-
lined mav he sai.l to U
[o he a ilelit. Ih»"' '•'•
,., ll'.tC^t. r.. Hiri.
Sus-sions has vower. in
L pronounce a sentence
i-,iseeution, and imimsuu-
linent. Oc'-^v. Tonhn;
lin:.
I' KOli NoN-rKKFoRMAN'E
I; l.Vil.
15-2-J.
IvsEs, loi'i.
IISSUKANCK.
VI. LiAiiii.iTV OK Ten'axt aktf.h Fuse— >Vc i
i^ANDLoiU) AM) Tenant.
VII. FiKEFKOM Railway Encinks— .SV- Rail- ,
WAYS ASt> 1{AIL\YAY CtlMl'ANIES, I
I When an Exctsk foh Xon-perfokmani e of
CONTUACT.
f,ir('iii-n(i[i<- "f Goodx.] — The Imperial statute
.i(j(^;^,;, 111. c. 81), s. '2, enacting that owners of
shiiis sliouH not he liahle for any loss or damage
ifliieli mav happen to any goods shipped on any
inch vessel by reason or means of any tire happen-
in,r to sncli ship, is in force iu this province.
rUiM''V..s'.--W', SCR. 411.
IWemlants seeking to avail themselves of that
ai nwil nut aver that they are British subjects.
'//,;„■/, V. /,-«,■.>•, 15 Q. 13.251).
Ditenilants as connnon carriers undertook to
(jrrv "<'<id'^ "f tlie plaintilV, ^^ho resided at I'ort
llovcr! I'roni Butlalo to Caledonia, whence tlie
vliintilf was to take them. Upon their arrival at
Ithe t-'alciliiiiia station, the customs duties not
taring heeii paid, and no one being in readiness
toreaivc tliein, they were placed in a lionded
irjrchiiusc, and whilst there were destroyed liy
jre;-llelil, that defendanta were not liable, an<l
tta their duty as cf)nnuou carriers ceased on the
Itposit of the goods in the bonded warehouse.
TkiiriiK'iiile iif (•'Neill r. Great Western I!. \V.
Co 'it ('. 1'. 20:^, alKnncd. /imian v. HiiJUlo
JlII. /.'. ir. ''"■, ' C". R. 3-J5. ,Sec Thirhll
T.(',if/., ■..!,«, 1 Q. B. 318.
Carriage of goods by railway — Special condi-
tiii-ixtiiiliting from liability from loss l)y tire.
V .'/"''('/'I" y.Ordiid Trunk 1{. W. Co., 17 C.
P.ll'i; I'muVinl v. Gnat \Vi'.-<tifa II. IT. ('».,
iH'. 1'. olO;' (itinliiu <-■/ al. \. Gnat Wcili^ni U.
|r.r,,.,i-i('. r. 488.
Tt'i iilaiiit ill's, living at Southamiiton. having
Kki-^eil giinils at Montreal, directed them to
( inrwarileil to Kingston, to the care of the
Wmer "Itegiiia." They were sent iu one
: the mail stcaniors, but the cajitain of the
hEtLiua" being unable to wait at Kingston,
Wti'l ileleiiiliuits, wliowere forwarders there,
I till H on by the same steamer to Hamil-
liiB. aiiil tliLUce by the railway to Sarnia, where
ewnuU take them \\\} on his way to Simth-
iftiiii. Defendants, however, shipped them
Kb Kingston by a propeller, which was burned,
ptlithegooils on board, in the river St. Clair.
bliacl been ii.sured to go by the " Itegina,"
litliaving l)eei shipped on a different vessel the
llitywas caaeelled It was held in the Queen's
Itiehanls, C. •!., doubting, that on the
|Kr:kt for not sending as directed, defendants
( liable only fur nominal damages, the loss
tferdieing too remote ; and. Richards, C. ,J.,
p., that they were not liable iu trover. On
ftal.-Helil, reversing the judgment, ihat de-
kiiints were liable on the contract for the value
Itlie L-iioils. Wnlliici' it al. \. Su-ift it al., 31
mlf (■,iv,.<,]_\viiere a defendant had agreed
iJUnnia steamer chartered by him on a certain
lin^iiiiil repair, "dangers of the lake excep-
it was ileciileil that damage to the steamer
l»ii ateiilental tire, not occasioned by lightning,
li'it excuse the charterers, as it did not come
^rtht exception. Lamed x.Mc Km, U^B.tlD.
9ti
Qua-re, whether a lire occurring in a steamer
from some cause clearly connected with the use
of steam, would come within such e.vception. //'.
Where Hour w.is delivered to defendants, who
were warehousemen ami carriers, with directions
to .sell as much of it .as they could during the
winter, and put the remainder iu transitu for
plaintiff in the sjiring, and some sales having
tieen maile before the navigation ojicned in the
spring, an accidental lire destroyed the remain-
der, without any default or negligence of defen-
ilants ; — Held, that as llie tlonr at the time of
the tire was in the hands of defendants as ware-
housemen, and not .as common carriers, they"
were not responsible. Tliirbll v. Mrl'lii'rxun ct
at., 1 Q. K. 318.
In consider.itiou that the jd lintill' wmild de-
liver to defendant •J,00() bushels (if wheat, the
defemlant ]iromiseil to deliver to him, witbiii a
reasiinable time therefrom, ■WO barrels of tlonr :
— Held, that the word "therefriuu" must be
construed to mean thereafter, and not that the
Hour was to be made from the identic. il wheat
<lelivered. This being the proper construction
of the agreement, it was clearly no defence to
plead that the dcfend.ant's mill containing the
wheat was burnt down witliuiit any negligence
on his i)art ; though he would have been excused
in that case if the other construction of the
agreement could have been adopted. Tilt v.
Silri,-thi,nii-, 11 Q. H. (ill).
In an .action fiu- \Vork and labour against A.
and B. , the i>lairitill' ]>iit in an agreement heailed,
" An estimate for the carpenter and jniner work
of a brick cottage, to be done for Mr. \\'illiam
Walker" (defemhuit's father.) Then followed
the specitications, and an agreement by plaintiff
to do the work. Receipts were endorsed, signed
by the plaintiif, but not saying from whom the
iiionev was received. The plaintitf was not to
find materials, and no time was mentioned lor
completion of the work : -Held, that parol evi-
dence was admissible to shew that defendants
were liable on the contract. Held, alsn, tint the
destruction of the building by tire befi re the
completion of the plaintilf's Mork could not
defeat his claim for u hat he hail .already done.
Huhhardx. Wiilh r, l.'i Q. 1!. 205.
II. Ci.EAiuNii Land.
A persiin kindling a tire on his own land for
the 1)11. (lose of clearing it, is not li.ible at all
risks for any injurious consciiiiences that may
ensue to the iiropcrtv of his neighbours. Diaii x.
MrCini;/, 2 (,). B. 448.
The plaintitf owiieil land in Xottawasaga,
through which the defendants constructed their
railway. Portions of the work of construction,
including the cutting, grubbing, and clearing of
the track of trees, to bi> done to the satisfaction
of the defendants' engineer, were let to ^I.
& G., who sub-let it to other parties. The engi-
neer, who had power to urge on the work, but
no control over the men, directed the workmen,
servants of the su'o-contractor, to hurry on, and
told them to burn the brush and timber in the
centre of the track, not on either side. The tiro
was lit in July, and spread into the plaintitf s
laud. In October, the tire having sniouldereil
meaiiwliile, .as the plaintiff alleged, broke out
afresh, and did the greater part of the damage :
K?
a
Hi
Hi
f;' )
1523
FIRE.
•cH
— Held, that the contractors, not the defendants,
were priniu facie respon8il)le for the injury, if
caused by negligence on the \>art of those who
set out tlie hre ; and that the evidence, more
fully set out in the report of this case, did not
shew such an interference hy the engineer as
would make the defendants liahle : — Held, also.
Act, sec. 83, limiting suits to six miintlisaft.
the damage sustained, did not apiiK, thf ii ^'
charged being at coniuKJU law, by ,,iiL. i.ii,|,n[!![;
of land against another, indeiieiidciit (Ji iinvu*
of the railway. Preml'-riinM v. 77,,. r,Vii«,/ ■;•. "^[
It. W. Co., 25 Q. B. 193. ^'"'•
A man must exercise care and discretio
tliat if the action could be maintained, only the ,, ^^"""' "","" '^•■^•^'^'»'= '-■"'l- ="',1 ,.,sn-etio,, a.,,,
•lamages awar.lcd for the Hrst Kre in July shouM f.'"^ tnne ,an<l mode of clearing \n. lan.l : anl ,.
1 . 1 ii • ij f 1 1 1 I his neignl)our be niiured by nis luc^s m. ;„
be recovered, as the weiyht of evidence shewed i ■, .* i • -^ ^ • - ""*'"" iiimn.
1.1 t ii 1 1- c i' i.1 siderateness on Ills part, in scttim' rln^ h,. .
that the second brc arose from otner causes than ., . , •,,', ,'. ,' v , p "' ""^ 'Jf
the first fire. (,'il/.^t)ii v. Xiirth (!rci/ li. W. Co.,
33 Q. R. 1-J8.
On appeal tlie above decision was affirmed ; ; the evidence woulil fullTfKuV'wair.iiiti.,
and— Held, following Dean r. McCarty, 2 <^ B. I ft,,.e,it finding. WUkin^'v. //.„-■, I,", c ]■
448, Blake, V. ('., diss., tliat a proprietor setting I
that purpose, he will be liubk: to liiiii ; imt tl,,, ■
is fdways a ijuesticm for the jury, ainl 'tin. ,,,||jJ
refused to disturb a verdict for di'tVuilmt, thnr /I
V.\
out lire on his own land in order to clear it, is
not an insurer that no injury shall happen to
his neighbour, but is responsildc only for negli-
gence. S. C. 35 Q. B. 475.
Fletcher v. Bylands et al., L. R. 3 H. L. .S.SO,
coninieiited upon, and held not applicable totliis !
case. III.
However clear the rule may be tli.it a |,,irn-i
may kindle or permit lire to" burn i.i, \\\^„^X
land, still if it is likely by spreinUiig tu injnrej
his neighbour, he is liouml to put it.mt, inisirtl
himself so to do, otherwise he will Ijc luij,; J
Ball v. TlicUmiul Trunk II. IT. Co., liiL. !'.:',)■> J
Tlie first count of a deil:iratiim fur si-ttinjl
Blake, V. C, was of opinion, that upon the ! fire to the plaintilV's barn, k^-., alK-i,! t!wt thJ
rule of law laid <lowii in that ci-se, defendants: plaintifl', a/f/ir Unic wIkii, &c.. was posstsst,! ofl
here were liable whetiier the fire was set out /i f'"'"'. *:'^'- ■ tli^i* the defendant ('. w.i.s .r; /J
negligently or not ; and that they were respon- | ••""''' ''"'" posses.sed of the S(.utlKTly imitiuns ,
sible for their contractors, because the act done, , t'^e lots of which the plaintitf had the ii'TtlicrlJ
the setting out of the fire, was not collateral, but parts, and that ( !., being tlie servant aiM iiM|
was done necessarily in the work which the (ic- i "^ t'., and l)y his instnictinns, and iiudi.'iu'tlrj
feudniits had employed them to perform. Jh. \ set fire to a brush heap on t'.'s laii.l, Ac.. ,,:
that by reason of iiegligeiiee the lire .sjiivi,;
the plaintiti"s land and Imnied iiis l«.ni, td
The third count alleged posses.siuunt tlu;|i|:uiitj
and C, as in the Hrst count ; it tlieii iliHrii*
the defendant's premises as adjuiuing the iiLiJi
titl's premis'"s, and then alleged that (t. nvtli
said (1. li(iiigattlnt;M
in the service and employ oi ('., sit tiivt'ii
brush heap, &c., and that the deleiidaiit ■li,h|
use due care, &c., whereby, \;e. :- lieM, tiiatliJ
allegation, tliat (.'. was at the time whcii, Q
was a material allegation. That the alk-iitifl
of (i., '"■(/';/, etc., ill tlie first cmint reiemiiti
, time stated, namely, at the time nf the (Mimu
One M. agreeil to burn and clear off the timber I ting, &c., ar.a was suliieientlv eeitain. Tlj;itt
on defendant's fallow at a certain price per acre. I allegation distinctly apjieaied in the tir.-t o.ui
A\ hile the work was 111 progress the defendant, i and was <iuite distinct from the \vr,.iii;!iil i
who lived on the place, came occasionally to see I alleged. 'J'hat the allegation that (^ wapiti
how it was getting (m, and advised him to set i time when, k>:., was not in issue uii.lertliv pi
fire to t)ie log heaps. M. told defendant that a : „f ^.t guilty, and should, if inteii.le.l ti. "
brush fence, which extended to the corner of | p„ted, have'bcen specially traverse.l. II"
plaintiff's land, might take fire, but defendant j y. Cluiiiinaii, 3 P. It. ;W1. -(.'. 1.. ('liaiiiK.-l
said it would make no difference. M. then fired ! Wilson.
the lieaiis, an-' went lioine, two or three miles I „ , • ,ii ^ , ■ ^ • i
- - ' rersonshaveariglit to set out tire 1)11 tlieirl)
Quiere, jier Draper, C .T. , whether a count
alleging only wrongfully permitting a fire to
remain on a defendant's land, witlumt averring
that it was c.auseil by him, or arose through his
negligence, shews a good cause of action. III.
Action for negligently setting out and manag- ! "f'^ei', &c., of C. he tin
ing a fire on a road allowance in order to clear it.
The evideni;e shewed that the fire was set out
by a person who h;id contracte<l with defeiidanis
to clear the allowance .it a certain price : — Held,
that defendants were not liable. Ciirrull v. Cor-
lioratiiiii of J'li/iiiplon, 'J C .1'. 345.
gence : — ileid, tliat M. upt
not an imlependent contractor, over whom de-
fendant had no control, but rather a workman
ill his employment, and subject to his directions :
and that defendant was responsible. Johtititon
\. IIuMu', ,30 y. B. 1'32.
Quiere, per Wilson, .1., whether if M. had
been such contractor, the defendant would have
been liable. Ih.
In an action against a lailway company for so
negligently managing, a fire which liad liegun
upon their track that it extended to the plain-
tiff's laud adjoining : — Held, that the llailway
the jury that defendants were lidiiii'l t"
anticipated the rising of the wiml, aii'l '
extraordinary caution. Hni-htdiiiii v. ](/«(
«/., 23 C. P.'lOl.
[Actions against railway eomiwiiies, l"rj
caused by sparks from iocoiiiotives-.')'"' ' "
WAV.S .\ND HaILW.W C'O.Ml'.VMK.S. "]
III. Inkiest.
Under the 20 Vict. c. 3(1, the cnroiier is i
the judge of the necessity lor iuvcstigatwul
ts to six miiiitlis aitti
I nf)t iiVl'lV' t^i>; ii'l'Ty
law, l>y I'liiu \iriniin't.i'r
liilulit'inlcut ot :myusi;r ^^ in
K.s^ V. Til'' (Ifnitd i'riifi
lare and ili^iTetifmasto
.•ariuj^ Uis laii4 : iiii-l it
;il liy rasluu'js ur iucoii-
t, in' sotting mit tire for |
: liaMo tn liim ; \mt tliii j
the jury, :vnil tk cnutt j
at;tf<il'<U:U-niliUlt, tliHHgii
y have warruuttil a ilii- 1
/v. linir, 15 c v.m:.
•ulc n\ay l"-- that a nirlyj
tiro to hum "U liisuwuj
[y by siiroading tu injure I
uiul to \iut it oat, i.uscrtl
lorwiso lio will In; liiiUe.J
wku. ir. co.,h)c.i'.'2.)i
a (loclaratiou fnr srttin}!
)arn, &o., allogi'.l that tliJ
/(,/), &o.. was iinssisstd ofl
e ilofouclant < '. wa> "
■ tin.' sduthorly iiiirti"i\s I
iilaintitV had tliu ivnMi
icing tlio sorvaut ami aOTl
strut'tions, aiul uugli-eutlyl
lioap on C.'s lau'l, iVc, aii'l*
j-liuonoo tho tire svivi.l
anil hurnoil liis l>ani, fccj
'Oil iiossossion of tliq'laiiiH
rst oouut ; it tlioii at,cni«
nisos as aajninnig tlu'VUiJ
thonallogo.l tl>at(..nytl«
tho saiiKLhouigattlKtini
employ of C, ».-t tiMn
,1 that tho aofouaunt .u; a^
Uorehy,^Vo.:-:HoM.iuttJ
wvs at tho tinio wliin, \(i|
...atiou. That tho alluati
[tho lirst count rolonvlt.iti
at tlie time of tlw-mii|
Lllioiently cortani. lli:itar
' aiuioaro.liuthotu'stojii^
■i„ot from tho wrunguill
:,Uo.gatiouthat<;.va».>tt
^snotiuir^suouii.UvthvR
,houhl, if lutouacltol.ij
,eoiaUytravorso.l. »■-''■'
;^;;i. _-(,'. L. tliMil'.-
ktt.^sotouttinMmtkirlji
foloaringit,,an,luk .
|nt\uonoootawma«l^
.lamage to a uegli .r,l
,.,ut 1,1-oofolmA*'"' ,
lotion in -^"^-''/^ "-'f ; J
Imliuits wore huuaa .-
^iuj. of tho wuid, ai..l .'
railway compa"'^''- |
|-„inloooniotivo9-'V'
Ly t'OMl'AN"'-^' 1
FISHERY.
, cause of Ji fire • and therefore to an api)lica-
• jfif ^ iiianclanius to tho treasurer to pay him
15-20
\ 1(11 a *"'*" L J
fges it was — Held, no answer to shew that
the opiuion of tlie reeve and others the en-
was not oalleil for. In /v Firi/K.i li iiL, 18
n. iNgvEsT.
l,.f ;W, the coronet is I
Ii:,i4'forinvesti,.noa
,imrv
i,B..S41.
IV. MiscF.r.LANEoi-s Cases.
In covenant against a sheriff's sureties, the
brcacli assigned was, that the sheriff arrested
tte lUWoi' i" the original action on a oa. re.
Itlivered to him, and afterwards alloweil him to
escilie. Defendants pleailed that the gaol was
ai4leutally dostroye(l hy lire, and so the debtor
iOiilicil. The (ilea was held l)ad, for not denying
tliatthe fire iiecurred through the negligence or
default of the slieriff or his deputy, (.'orbrif v.
' gnlmi d (il., 1 Q. B. .SI.").
Pei'l.iration against a sheriff f n- not executing
I J li fa., alleging tliat there were goods out of
Uhidi lie cduM liave levied the nnniey endorsed,
tattiwtlie did not levy the same. ITea, that
lietVirebo ooidd hy due diligence have levie<l the
moutys, the gomls were destroyed liy tire :—
I Jitll'iin donuuTor, plea l)ad ; fi >v levying includes
Ljjuri. and sale, and consistently with the plea
j tie ij'KiiU might have heon <lostroyed in defen-
Idant'si'iistoily afto'r seizure, in which case he
\mi\ lie liable. y.'o« v. aridi;/'', 25 Q. K 39().
The defendant agreed witii the plaintiff to saw
I lor him. at a certain price, whatever logs should
Ifeildivored at the defendant's mill, the plaintiff
Itoilrawinvay tho lumber as soon as possilde after
|itna.<oiit : tlio defendant also agreed to deliver
litPiirt I'erry, within a reasonable time, any
Ijiniilicr cut Ity him under the agreement after
Itletirstof March. .'>ome lumber was cut before
Ithelirstrtf Mareii, and ilrawn away by the plain-
; some was also cut after tho' 1st of March,
lalthis was destroyed at tho mill by an acciden-
Itil lire ill ■Tnne following. 'I'he jury found that
|«! the latter portion the defend;int might have
iMivereil ahont 40,00t) feet befiu'e the tire : —
, that the plaintiff" was entitled to recover
e value of tho lumber so destroyed, and which
ijlithave heon delivered, and that the defen-
Idaiitwas entitled to be paid tor sawing this lum-
kra.<well ai that drawn away bv the plaintiff'.
fiUiiMx.Tuirii, Tuiriiy. Srli<lji,-lil, \-l(l B. 43!).
.\ steam saw mill having been burnt ilown,
( engine and hoilers were loft, the boilers set
mile lirick wall of the furnace, and the engine
hpimrte'l hy a frame which was bolted tip tini-
p sunk in the ground. The sheriir seized
liAimiltr a fi. fa. treating them as chattels,
pit t»n iueft'eotual attempts to sell, and re-
p.ril giioils on hand. On the return day of
:«rit they were removed by the plaintiff',
rti'i hail imroliivsed by verl)al agreement from
leexteiition ilchtor ; but tho sheriff" foUowed,
f-tociji them as seized under tho rt. fa., and
t«r«arils sold under a ven. e.\. The plaintiff's
kWl the sale, and brouj^ht trespass against
'tslicriff :-Held, per llobmson, ('. J., and Mc-
"!.■'., while tho engine and boiler remained
krf ill the mill, after the tire, they partook of
«tealty, ami eouhl not Ix; seized under the ri.
^ lU'hattels. Per Bums, J., by the tire they
nie chattels, and might have been seized ;
PV-He. that the plaintiff's, having purchased
M onattels hy verbal sale were estopped
"asserting tliat the execution did not attach,
because tliey were part of the realty. Wallon
I'inl. V. Jan-U, 14 (J. B. 040.
C. owning land on which tiie l)uilding for a
steam saw mill had been in part erected, mort-
gaged it to J)., having previnnsly cxooutod a
mortgage of it toM. Afterw.irds the machinery
was put in ; 1). assigned his mortgage to H. ;
and the mill having been desti-oycd by tiro, tho
nuiehinery, engine, iioilor, vtc, were roinovoil by
('., with the assent of H., to another county, to
place in a new mill, and wliile still dctaoliod tlioy
were seized there under an exooiition against the
goods of ( '. , the mortgagor. On an intoi'idoader
issue between H., as plaintiff, and the exi'ciition
creditor : — Held, that the plaintiff" mustsuroccd.
for the machinery, itc. , were tixtiucs before the
tiro, and after it continued to lie the property of
the mortgagee ; and though there was a pi'ioi-
morti;age, the execution croilitnr shewed no right
as against H. II<irrU v. M^illn,-!,, •_>! (,t. 11. si
Defendant occupied a .stall in the market, the
cellar beneath which was usccl by the plaintiff to
keep goods in. He went out, leaving a lire in
his stove, with no (Uio to watch it, and a block
of wood too close to tho stove. A fire broke out
which burned through the floor, and <lestroyed
plaintiff's goods below, and t\\j jury found that
such tire was occasioned by defendant's negli-
gence :- Held, that it was nevertheless an acci-
dental tire, within It (loo. HI. c. 7S, s. S5, and
that defendant was not liable, iltixfun v. Wnlil,
I!) Q. B. 5S().
Kvery one has a right to the air on his |iromises
uncontaminated by the occupants of other pro-
perty, though those who live in a city I'anuot
insist on tho complete immunity from all inter-
ference which they might have in the country.
But tho occupant of city pro[ierty cannot justify
throwing into the air in and around his neigh-
bour's house any impurity wliiili there are
known means of guarding against. The defen-
dant erected in the city of Kingston a planing
machine and circular .«'u\', driven by steam, and
was in the habit of burning the pine shavings and
other I'ofuso : he took no means to consume or
prevent tho smoke, and it being cai'riod to the
i plaintitY's promises in sutlicieiit ((uantitios to be
a nuisance, the defendant was decreed to desist
j from using his steam engine in such a manner as
j to occasion damage or annoyance to the plaintitl"
! from the smoke. CartnTiijhf v. driiii. 1"_' ( 'hy. WW.
FIKK
.S'-'r
IX.sriiAXOK
Insikam K.
I riSHEUY.
The crown cannot grant an exclusive right of
! ffshory in navigable watei-s in this province.
I Motfiilf V. lioihlji, M. T. '1 Vict.
I In trosjiass for entering the plaintiff's close
' and digging post holes, and l)uildiiig a shanty, &c.,
' and occupying tho beach fm- the purpose of lish-
I ing :— Hohl, that the crown has the power to
I grant the beach to high water mark, and that
the defendant was a trespasser, the patent having
I conveyed to tho plaintiff' tho land on the waters
I of Ijake Ontario. Parker ft u.v. v. Elliott, 1 C.
! P. 470.
i|
f
1527
PIXTURES.
152S
Hold, that no coninion law ri^ht exists to tlie ; the foundation by mort.ar, is a lixtiiiu ],^\„, „■
imlilio t" use the lieach alxive higli water mark to tlie owner of tlie soil, and wlioii wn '''"*
tor the iitirjpose of tishing, when the lieach has severed it becomes a chattel ; aiu
been eonveyed by the crown to a subject, /h. dants, the vendee of the Ian
"fully
and iithurs \ii
hail at first removed it into tlie iiii;luviiv ■ J
afterwards took it away, wwv In.],! li';,'|']',"
trespass for taking the g Is (if tliu iilaiiitiil"th"
owner of the soil, d'a-'in, v. Jliii:tliiil/ ,7 „i '■ ^l
H. \'.n ; followed in Cliiirrrv. Ciilhid,.,, "' "
li. 4!tl.
H 0,
A barn, whether atlixed to tli
e siiii nr iii,t j,
as between vjuilor and vendue „i tlie liiiul a i, -J
of the land, and not a personal ciiattfl ti.r'w|,i!'i'
an action of trover will lie. •!. died havin. '
This iutinii was brought to try the right to an
inlet on liMilingtun Hay The jilaintitf claimed
title liy patent dated li»th March, IT'.tS, and con-
tended that it conveyed the inlet ; and that the
" bank" referred to in the patent was part<if the
liay, and not p.irt nf the inlet, and conse(iuently
the jpublic hail im right thereon. J>efenilant
cniitendeil that the inlet was part of the bay, and
that tile [latent dnl )iot cover, but excluded, the
inlet ; and fnrtlier, that the locus in (|Uo lieing , ,„ ,
navi..'able waters, if the crown could grant at all, "gl't of iireiMiiption to certain lands ; l,is «,!
the public had the right to use the tish in it :— i entors disposed ol tins right to the plamtitl' m1,'„
HeM, that the locus in (pio was a navigable ; received possession ot the land, and ,,1 a l.mi
water, and tlieiefore the public hail a right to which was supposed to be 011 it. It tiiriitiloiu
the free use thereof as such. O'ln/e v. Ji(it>:.t, 7 however, that the barn stond [lartly mi a hi.!,'.
C. I'. Ijil. ' way, and [tartly on the dcfeudant's Jan,! fi„
ir,, , .,'. .111 M • t • 1 • * 1 'defendant removed it, and the ;,Iaiiititn.)„u -lit
If. Id, 1. I hat all her Majesty s subjects have , trover : Held, that the action »„iiM uJt
a right to take bait or lish 111 any harbour, river, ; Jj,„iiiill v. Tii/ipir, 10 (,>. 1!. -HI. "
or luililic water in Upper Canada (not duly set j
apart )iy the governor in council for the natural or, A fr.ame house rested iipmi p,ists sunk in tu.;
artilicial propagation of lish,) so that in so doing 1 gi'oiiinl, but not in any way attached tlifii nn :^
they ticsi.a.>s not on crown lands or beaches, or Hehl, a fixture, and not li.dile to s.il
by their jilacc, time, or mode of fishing contra-
vene any provision of the fisheries Act, or any
regulations made by the governor general under
its provision, and apjilicalile not merely to indi-
viduals, but ci|ually to all Her Majesty's sub-
execution against the goods ut' the
:mi
^'eii' : tlie
land, by whom it had liceii put up as a ihvilln,
house. Jid/i/ V. J/iiiitii; '.) {'. 1'. ,S8-.'.
'i\
jects. hnrtuih v. JJiniii, 7 Ij. J. -73. — C C-
Wilkes.
Held, that a boat in lawful use by a jierson
owning the same, though not a lisherman liy
trade, is exempt from seizure under an execution
for debt. ///.
The plaiiitilV contnictcd to sell a lut nf IiukII
to A., who agreed to build a house uiiiiuit. \.|
put up the house, but the Jilaiiitilf i-efuscil tJ
open certain streets, as he h.ad agreed tn ili,, iiujl
the lot was in coiiseiiueiice inaccossilik., \J
then assigned to defendant, mIiu roiiiuve,! tiuj
house to another lot, which lie had alsn a.'Un
to purchast' from the plaiiitilf; and after -ikIi
" le
Held, that a constable acting under a warrant ! 'f ":'^'"/ ^i''' I'';''"*!'!' "^■^■"'^i'' ''l/^'l ♦",'1^'*
issued under the Fishery Act.'ll Vict. c. (iO, D, ' '''""^ "' ^'""^ '''"'■'■ ^''^' ^^"'' ^'" 'he Imi,
directing him to convey plaintiff to gaol, and
the gaoler to hold him for thirty days abso-
lutely, and not until tiie fine, i*tc., be sooner
jiaid, for the 11011-jiaynieiit of which the warrant
was issued, had no authority to receive the money
and discharge the jirisoiier. Held, also, that
under the act a warrant of commitment might
issue in the first instance, the statute not reijuir-
ing that a distress warrant must first issue.
AnioK V. nrtul/i/, ^'A C. 1'. 1.
thereon : - Held, that notwitlistaiidiiii,' the uiefl
the jilaintili' might inaintain trover fur thfli.msc
so removed ; lint the jury having given
iiomina' .aniages, the court under the
stances refused to interfere.
IT) Q. B. riSU.
I'lMiiai
II.
Ill
IV
l'l.\Tri!KS.
W'llAr AUK I'lXTlUKS.
1. I{n;i,l\„.i.<, 1.VJ7.
•J. Miirli!ii<r;i, l.V.'i).
3. Ifoi, l\,l..,, l.-,.34.
t'oNTUAris ItlCSPKlTlNd, 1,"),34.
"WlIKN liKMOVAJil.K, 15,3().
KkiiiVKKV (IF, 15.37.
1.
What akk Fixtiues.
1. Jiiiililillil".
Vindor and Pkix/him r.] — A building put up
by a vendue of land in possession, under a con-
tract to )iurcliase, resting ujion a foundation in
some parts let into the soil, and connected to
T.diulliiril mill '/'i iKiiit.] ~\ gi'eeiiliiiuse, oil
servatory, and hothouse, affixed to the freeliull
were held not to be reiiiovahle hy a teiiautl
also, the glass roofs. Hiiriliinr v. /'ii/V,
Chy. 2(i.
But machinery for heating givenluinses. wliicj
rested by its own weight on liricks, ainhvasiin
fastened to the freehold, w.as held tu liereinnvalili
also, the [lijies passing fioni the Imilers thmna
a brick wall into tuijoining Iniihliiigs. Ik
Olhii' Cii.sis.] -The plaintiff insiuvil with 1
fendants a bam as aiipurtcuant tu liis friT'liiJ
After it was burned, he made a claim uinlei t|
policy, still treating it as ap[nirteii.iiit M
freehold, but having failed in jiniviiig title
the land, he sought to recover nii the grmnj
that the barn was a chattel, and as sueh iiisiirt
by him :— Held, atKriiiiiig the jiulgiiieiit hdi
that he w,is jirecluded fnnii setting; "p
a claim, and that the plaintiff odiihl imthehd
to say the barn was a chattel. Slhrkm.'ini
Till- liiiinr ,]fiifii(il Fiir hi-tiinuia ''»., ,'j,'i(,i.j
1 ; 30 Q. B. 472.
Declaration, for entering plaintiff's huiil,
•also plaiutili"b dwelling house tlieiemi, am
152«
is a lixtuvc litliiiigiuj;
ami wUfii wriiDj-uiUy
.ttul ; :iuil tlie iltttii-
laud au'l otliors, wlii,
into the lugliwuy, ;uil
Ills of tlio iilaintill, tlir
V. Miti:*li<ill 'I III.," (,i.
iiv (• V. Ciilltiilni, 14 (I
id til the soil iiv iii,t, i;,
:iidfe 111' tin: laiiil, iiinirt
I'sdual i-li;itti'l torwhitli
lit'. <i. diuil hiiviiii; a
curtain lands ; liisfX'.-
>;lit til tlif \il:uutirt', wlw
;1\L' land, and ut u Imtii
DC <in it. It t\n'iitil nut,
stiind |i:atly nil n liigli. ■
■ defendant's Uiid. The [
md the \.!;iintili' bvimgiit j
le actitin would imt lis,
J. 15. 414.
1 upiiu posts swuk in tk
way attached tlieivmi ■.-
,t li'alih' to s;d ■ .111
rooils of the veni : tiie
been \iut n\i iu n lUvi'lliiij
r, It 0. I', asi
,ctcd to sell a lot "1 luiil
mild a house ui«mit, \.
it the lilaintill' vetUMVi to
IS he had agreed to .li., ;ml
L^iiucnce inaeeessihle. .\.
ciidaut, who reiiinvt'.! tin
which he had ;dso ii^rt
c idaintitV; and afti-v >\U'
executed a deed tiMU-ka.
,1, with all the ImiWiiigl
n'olwithstanduijitlie linJ
utaiu ti'ovei- for till li-:^
jui-y having givHi "iil
■ourt under the rtwiiaj
brleru. Vhu-'f\.t'"l"''-'
ml.] -\ greenhousL'. i"B1
Use', aliixcd to tlie iwMi
rcniovahle hy •' t^"''"'|
catino iireenhoiisrs. wl.id
rht.miirieks. 1111.1 Nv;i.^iiij
\ washeldtolieVelii..valW
' fnmi the holler-^ tliV"U^
'luihUngs. i'>'
1.VJ9
FIXTrRKS.
i.-.no
1^
linins.
with I
,viiii' the house tlicvefnmi, ninl cimve. 4iig it
""' Vmlant's use. Plea, t(i .s.ii niiicli of tlio
Mit as refers to tlio (IwcUiiig-lnmsc, tliat licforc
t„ ,lufeiidant s use.
hintilf lieeanu; iiossc-sscd and owiujr of the lot,
Cl'l
'i , „,lints iilaced the said (hvcllingdinuse there-
<Htli:it it niiont thiTcatter lie ri'movcil liy
4 111 iiotaltixini,' it to the land ; and defendants
I- p,..ii.ils, and w hill' the land was iinencldsed
1 j,j^,il ;is a eonmiou. and the Inmse open ami
' ' ,"nviiiiied, in the day time, ]icacefiilly entered
,1,. jnt iUiil renidvcd tiie dwi'lling Imnse, the
' ^jliio lieiiig their lirdperty. and iilaced it on
i l.ir i)«ii laud, which arc jiiirt of the trospa-sses
I rtiiii.biiied of. Iteplioation, that (h'fendaiits
i ilinihl ii"t liealldwed td plead said plea, liecansc
Itkv wti'e entitled to an interest in .said land,
jliHJlttlie house dii the land, and dci'upied it,
jinl afterwards, and lieforc the tresjiasses, i\:c.,
IliVikil conveyed the land, with the ajiimrte-
■s to A., wlmconvcycMl to phiintill's: -Held,
I'int; mi justiticatidU
also, replication
|»i««l liv way of estdppel. i'n nicrnii v. Ifiiiilir,
I ,iat the pli-'a was had, as she wi
I i,ir tlie tresiwss :ldniitto(l. 1 1 e|i
idaintitV insured v
',;,,urtcnanttohisnYh"J
llie made a eliuui uu'h'i
it as aiiimrteniuit t.i
failed in ]irovuig title
, to recover on the grma
Ihattel, and as such lusiirt
Ining the judgment \M
lied from setting iir«
lulaintilfoouMuothehe-
l\v cliattel. N^. '■'--!
.',•)•(' Iih'iiiiviiir ('i.,*iV:
lterin>' plaintitT's lan.l,
lug ho«.o thereon, aii'l
2. Mdfliiii' rii.
V.iiiliyiiiil rinrliii!i( r.] ~-A luiildingdrigiiially
IwUs i> storehouse w.as converted into a steam
iT-tmill. Afterwards the mill macliinei'y was
Inkdi out, the lioiler ami cng'inc lieing left to
Iprk varidiis other niacliines, wliich were jiut in
|i»t the iiiir|iose of making; sashes and Idimls,
|» a.s iiliuiing iimchines, turning lathe, itc.
IHirto were fastened td the tldnrs and timliers cif
■'ie Imihliiig to steadj' them wdiilc in nidtion,
Idch macliiue lieing' independent, caiialile df
ijg miived witlumt material injury td the
lU'liiiL', w interfering with the engine, and df
Ifeniirked hy any dtlier prdpiir ludtive ]idwcr.
Jlr. tlie iissignment under which the plaintitl'
Idiiiiieil, these machines were descrihed as cliat-
fe, hilt the deed lieing vciid as to tho persdiialty
Bitwut of registration, he contended that they
here iiavt of tho inheritance, not snliject to an
^viitinn .against goods, and passed to iiim with
(ttthinl ami Imilding in wdiich they were, which
Itre included in the assignment ; -Held, that
« machines were chattels, and sei/alile under
111. !a. goods. Citrsctd/iii v. Mom/ii rl it/., l.j
I Ime J. sold the land in (luestidu td W., who
Vk i«'Sse.ssiou under the contract fur sale, and
Kltd a set of hay scales, partly ujidn it, and
fnlyiiiiiin the street. A pit was <lug aliout
W icet deep, which was lidarded inside, ami
itets let into the soil to hang the scales upon,
jb\ s rests. The platfui'ni rested upiin posts
Ins U in. and hung upcin linoks in the posts, so
^t tho .■scales might he removed liy lifting it up,
pout ilistnrhing the posts (ir Ixiards. The
th w.is hanked up on the dutside, so that
mscraihl drive upon the platform. \V. could
Jarrviiut the contr.aet, and with his eouseut
Ic'Uthe land to the plaintitl's, anil conveyed
Itothem liy a deed in the usual fdrm, in which
pkiiig was siieeitied as to the hay scales. 'I'lie
peDilants, \V. and another, having removed
a. taking away ivll except the jiosts : — Held,
btliiywere uotlixtures ius lietweeu J. an<l his
Mrs, the jilaintill's, and ilid Udt pass liy the
pviiiiee. Miirkli ft id V. Iliwrk' it til., 19 Q.
m
}[iirliiiiiior fifil ^^o^•h|,l,|l, .] An engine fas-
tened intd and lidlted npun ;i Wdoden frame let
ititd the grdund, is a lixture. and is Ud less sd
liecause it could lie rcmiived without ilefaciiig or
ri'nidving any part of the walls of the Imildin'g.
0,/^.< v.'Ciniirrnii, 7 (,». li. -J-JS.
A. dwning land on which was a saw-mill, nioi't-
gaged t<i ( '. and D. td jiay for nuiehinery put U[i
ill the mill, df which his son was in possession
as tenant at will, (laying no rent. A. made de-
fault, and ('. and 1>) gave iioiicc, and attempted
td sell. Defendant, the shcrill'. npdii an exccii-
tidii against A., seized the machincrv. wliich was
replevied liy the sdii, wloi chiinied : Held, that
the prcipcrty w Idle attached to the freehold was
the property of the mortLrngei's. and that the
)ihiintitl lieing ciniy their tenant liy siiU'erance,
latter default in the nidrtgage) cdiild not remove
it as tr.ide lixtures. Aiuh r.-'dii \. Mi'Kmn, ".) ('.
W i7(i.
The firm of C, <i. k Co. hcing indditcd to tho
plaintitl's, mortgaged to them in fei^ certain land
ami premises, on which was erected an iron
foundry, with the niachincry and iron littings
used in the business. Previous to tliismortgage
a prior owiierof the land hail alri'ady murtgageil
it ill fee to one (1., which mortgage was still
diitstanding. The delVmlant, assignee df ( '., (i.
k Co., removcil certain portinns of the machi-
nery, and a disjmte ai'dsc with the iilaintitl's as
td what part nf the prd|icrty sn removed con-
sisted of fixtures. Tlu' mattei' was referred to
an arliitrator, who snlimitted a special case,
descrihing particularly the various articles in
dispute, and the manner in which they were
aiincxeil to the freehoM. The dill'crcnt articles
enumerated, and their connection w ith the free-
hold, are stated in the case, and the judgment of
the court as given updii them respectively, smne
lieing held fixtures and some mit. (luijih rhiim
<l III. v. /)iiiliij/,ii, IS(,>. P.. L'O.S.
Tddls ordinarily in use for the purpose of
Working any of the macl'iines so attached :is to
form partof the freehold: — Held, lixtures; other
tools not Jh.
The avbitr.ator on a reference back amemlod
his report in the deseri])tioii of some of the
machines and tools and littings mentioned in the
case tii'st snlimitted ; and on the n purt sd amend-
ed, which is set out in the case, the cmirt g.ive
judgment, altering their decisiiin as to some of
the articles. //).
Heltiiig necessary for commuuicatiiig tlie mo-
tive power fr<iiii the engine : — Held, a lixture.
//-. 214.
the Imilding for a
iiart erected, mort-
C. owning land on w hicii
steam saw-mill had been in
gaged it to 1)., Inaving [ucviously iiKirtgaged it
to M. Afterwards the machinery was put in ;
I), assigned his inortgage to H. : ami the mill
having been destroyeil by tire, the machinery,
engine, boiler, &o., were removed by (.'.. with
the assent of H., to another county, to place in
a new mill, and w liile still detacheil they were
seized there under an exeeuti.'ii against the goods
(pf ('., the mortgagor. On an i'iter[de;ider issue
between H., as plaintitV, and the .'xecution credi-
tor : — HeM, that the plaintitl' must succeed, for
the machinery, &c., were fixtures before t're tire,
and after it continued to be the property of the
mortgagee ; and though there was a prior mort-
''If
il
i
Vi
1
i
H
' ■ 1
. r
i ■
" r
j i ■ ■
1
■'
j?
* ; ■
1' -
1
• , _
"^ m
1531
FIXTURES.
I53i
g.igf tliu exociitiiPii i-rcilitor hIicwuiI ho right as
against H. J/mrU v. Mallw/i, 21 Q. B. 82.
The execution dehtor inortgagetl a grist-mill
and ]ireniisfK to oni! B. , and this mortgage was
assigned to tlie claimant, Init not until after the
execution issued. I'revious to the execution,
however, the debtor had executed a second
mortgage to the claimant direct. The machinery
of the mill had lieen disconnected, and taken
clown to he altered and rejiaired, iritli tin hitoi-
tioii iif ri'/ilnciiiii it (»;/<""■ —Held, that while
thus lying in the mill, and on the jiren ises, it
could not lie treated as chattels. (Iriiiity. m/naii,
17 Q. B. 144.
Held, that a jihuiiug machine standing hy its
own Weight on the tloor, without fastening, with
belts and an mgine to work it, is a chattel liable
to seizure I'or taxes, //"//c v. ('uniiiiiiii/, IOC
V. 1 IS. See Mr]h,„iihl v. ]\\ik^, 8 Chy. 21>7.
A. owning a term with right of purchase,
built a water mill on the [.iremises and mortgaged
to B. for present and ftiture advances. He after-
wards introduced steam power, consisting of
engine and boiler, into the mill, atK.xed as de-
scribed in the case. Subseijueutly an extension
of the term to B. , the mortgagee, with right of
purchase, was obtained from the reversioners by
•leed, to which A. and B. were jiarties, reciting
their position : — Held, that the steam power
belonged to B. as mortgagee, anil could not be
seized under execution against A., thougli they
might be trade (ixtures, and though tlie estate
mortgaged was not a freehold interest. Pnttrsitu
V. /'///""'•, -0 C. I'. 278.
The owner of laud upon which there are
fixtures, such as machinery in a mill, has the
right to sever the chattels from the realty ; and
therefore a mortgage by him upon the fixtures
was held not to lie prejudiced by his subsequent
mortgage of the laiul. The mortgage was not
re-liled within the year, but within the year, the
mortgagor having sold the fixtures, the purchaser
gave the moitg.igee a mortgage of the same in
substitution of the original mortgage, containing
.a recital of that mortgage, and of the sale of the
fixtures to him subject thereto, and that he had
obtained an extension of time on condition of
giving tliis mortgage for the sum unpaid : — Held,
that the omission to re-Hle did not give the
mortgagee of the land priority, for he could not
be considered a '• sulLseijuent mortgagee in gootl
faith for valuable consideration," within the
statute ; and that the prior severance of the fix-
tures eontinucd down to the giving of the second
mortgage, which carried it on by its recitals and
legal effect. Semble, that if the chattel mort-
gage were paid oft", the mortgagee of the realty
woidd then be entitled to the fixtures. Hmc v.
//../„, 22 t'. B. 482.
A mortgagor put up a steam l)oiler and engine
for the purpose of working plaining machinery.
The boiler reste<l on brick work, without fasten-
ing : the engine was firmly attached to the Hoor,
with bolts and nuts to make it work steadily ;
the machinery propelled by it was all uncon-
nected with the premises :— Held, that the boiler
and engines were not fixtures. Schn'ihir v.
Malruhn, 8 Chy. 433.
The iutenti^m, object, and purpose for which
articles for the purposes of tracfe, or manufac-
ture, are put up by the owner of the inheritance,
arc the true criterion by whicli tn ilutcrniii
whether sucli articles become realty uriidt "
the mere fastening to the soil. .lAcA./in// '
MVe-ivs 8Chy. 2'.)7. ''
The purchaser of the equity of redumijtioii i.
certain mortgage premises, erected tluTidn
m.achine sho]), wherein he jilaeed a Imiltr,, •
engine, and intrcxluced into the Imildin,, tlir'
latlies, a wood cutter, and a pliniiu;,' hkhI,,,™
all of which were worked and (biveu by .siuli i
gine, but were in no way attached t.i tiiV machine
shop, except by belting or siniiiiu' iinaiis wlim
in motion ; being in every other Wiiy inio.nnr-
ted with it or any of the fixed iiiai'liiinrv and J
capable of being removed witlnmt ili.stmi;,,', I
the machinery or doing any <huiiiti.'etntlu' rtaltv
in any way :— Held, that tiu' artieles win- rt.
movable as trade fixtures, I'ultn-xim \ I,)
.-<(./(, 10 Chy. -)83. ' '
The distinction between chattels alli.vcil uith |
nails or other fastenings, and tlmsi.' re,<tiih'l.v|
their own weight, remaining eliatte'..'< i.r licwniinjl
part of the realty, considered and ildiilitfil. /vf
McDonald i\ Weeks, siipni, cuiLsitli
approved of. Ih,
On the sale of a woollen factory ainl inacliinm-
it was stipulated th.at until the 'pureluiso iji-iifyl
should be fully paid, the vendees wiiv nut toj
remove the machinery. The veinluis altinvanlil
i conveyed to the purchasers, wiiu, td bcLiiittiul
' unpaid purchase money, executed a iiiurt.Mfe
i purjiorting to be of the factory diily, aiiir'n^l
J mentioning the machinery: Held, tli.it tliicve.!
I nant against removing the niaeliiiicry iviiwuk-J
I in force : — Held, also, that the iiKirtgage c"Vire(
I not only the machinery whieli \v:w hAa\H
with nails or screws, Imt also niaeliiiiw whij
were kept in their place Iiy eleat.s, as well j
the pLatcs and i>aiier useil with the iiresii. Tt
purchasers resold, their vendee liaviiii' iiotitco
the covenant, and the vemlee suliseijutiitlv 1*
came insolvent : — Hehl, that his assignee [j
insolvency was not at liberty to remove the in*
chinery by reason of non-registratidu uiulertb
Chattel ^lortgage Act or otherwise, ('fiun'bt
V. Find/ai/, 18 Chy. 31.
Itreil aid I
See also The Great U'esti rn RMmui 0<
Bum, 15 C. P. 207, p. 1535.
Lnudlord ami Ti'vaiit.] — The saws ami nthel
machinery of a saw-mill, are not trade tL^turei
Jficliardiiun v. llanufii, 2 C. P. 4ii0.
One I. being the tenant of )ireiiiisos iiinlertiJ
plaintiii', consisting of a mill, etc., upon thesam
being burned down, refitted the inaeLinery, pul
ting in some of the old and souie new pnrtinnl
The sherifi" under an exeeutioii against the ta
ant, seized some part of the gearing. It
not shewn whether the tenant's term bade
pired at the time of the seiziue (jr not.
whether he was under a eoveiiaut to repairai
keep in repair or not : — Held, that the faots»'«(
not sufficiently shewn to enable tlieeoiirttiici)4
to a decision, but that jiriina facie, the laa
lord Wivs entitled to the gootls seized. Ikit
V. CromhU', 11 C. P. (iOl.
The execution debtor had leased from id%
dant certain premises in which were an eiigi
ami boiler, to be left by him in repair mi I
determination of his lease. Kindingliothuiititfl
his purposes, a larger cylinder v as put iiitu t
MP
y whicli to cU'tumiint
joiiie ri-Mlty nr iiut, \\„x
i(iuity of rfilfiiiiitiiiii ill
aes, t-'i'tfti'il tliiTtiiii a
\\ti \A'MvA a linileraiul !
into the Imilding thtce
11(1 a \il;uiiii« miwhiiit,
1 uuil ilrivt/ii liy siiilun. I
ivttiK'lifd to till- niacliiiie |
(ir similar lui-aiis when |
fry otln-'i- wiiy mu'nimw-
lu lixotl luacliiiK'rv, aud 1
■,:i:l
FIXTl' RES.
m.'U
I'ctl witlidUt ilisturl
"5
rnc with iU'f''iiilaiit'a concent and jiartly at I faHtuiiod to tliu frcfliold, was liidd t(
r:'|,j,it.iisi', wliifli on tiL'ing broken was rt'idaceil lile. Also, tlie pines iiassinj; troni
'■ -^1- * *•' — -I haft, ; tliroughal)riek wallintoatljoinniy liuildings. I h
I")'
I .lis
lie remova-
tlic lidileru
; any dania_i.'e to tlie realty
at the articles were tt-
ires, I'nttn-'i'iii v, .Mi,.
i-eeu eliattels atiixfil withl
iirs, and tlii«e rtstiiij^l.yl
iuiiig ehattu'.sur liccrminjl
sidcred and doubto'l. IK
s, sinira, L'oii^iilcrtil audi
leu factory and inacliiiim,!
until the imrchasi; iirai(y|
till' vendees wiTc imt tol
,-, 'I'he veiidurs afti-vwat'llj
jliasers, who, U> scciiMhel
iiey, executed a liiurtgagJ
tlie faetovv only, aii.l ivJ
uery. Held, that till- CmV6
iif the luaehiiiei'V rcinaiiw
"that the mortgage o'Vtrtdl
inery wliieh was I:\,-tii,id|
i, l.iit also maeliiuus wiw
idaee hv eleats, as wtU ;
used with the vri-ss. Tlid
leir vendee having iinticc
he vendee suhsemitntly !«
leld, that his assigiict il
,t liberty to remove tin- mij
iiou-re^gistration inukrtlil
;t or otherwise. Cmm
M.
1,,^ ]V,'stu-ii liitiUcaij C'u. '
L. ir)3r>.
L(;(^] -Hk' saws aiul "t'lid
liiiill.are not trade tixturH
{,/, •> c. r. -liiO.
■euaut of in-einises uwlertli|
Tf a will, &>-•■■ "l'™tl"*''"
J retitted the niachniery, pul
|old ami some new i)"rtiuiK
execution aganist tk tef
Lrt of the gearing, It «
the tenant's term kvie
lof the seizure or not, "
ler a covenant to rtpriij
I-— Held, that the facts »■«
Into enable the court tocolj
Ithat l.rima facie, the 1 "J
the goods seized, W'.iw
(iOl.
i.tor had leased from .lel^
L in which were an J
Ift by him i'";'-'rf"i|
(lease. lMndiiigh"tlimiht«
V oyliiuler was i«iit into «■
another at the tenant's exiicnse, as. ilso as
■Bilk livwheel, eonneoting-rod, slides, &c. with
jihflVreiit kind of cngine-iiuniii, A ne\v boiler,
Js,! instead of the old one, was put into the
nreiiiiswhy tlie tenant, and was by brick-work
I tuched til tlic freehold ; it was also reinova-
!,, \il the additions made by the tenant had
ken so "i'"'*^ '"'" ^'"-' l""'l'*'''**-'s of his trade, and
tiiouiib attached to the freehold could be re-
vedwitli little injury thereto, the machinery
I j„ , aduiitted by holes made in the walls, and
I tliH shafting attached to the building. There,
,ilso. certain drying jiresses, vats, and
Icoib ill t'"^ building, ami all were placed on a
jimnirv flooring, supi>orted on scantling and
I lj^l^.,vork not let into the walls or ground;
nirtitions of the buihliiig were of wood: —
th.it the engine in its entire state be-
C0lt3
IttBl"'
jtttssl'
jtlieF
llowiil til defendant, as part of the freehold,
[was not lialde to seizure under execution ;
jbuttliat the temporary floors, scantling, parti-
Iticw, presses, shafting, other than had been
Ifeliiamtlie buihling, vats and cocks, were all
llivlf fixtures, and so liable to seizure under
Inei'iitioii. Jliiijlii" i-t III. v. Tim-ci-K, IGC. 1'. "287.
Till rule respecting trade fixtures, as between
lyinnl and tenant, is, that all such as can be
without materially injuring the build-
reimived, and is liable for sale under
lb.
Irtniovi'ii
I Biav
^i'--. on against the tenant
The tendency of nuxleru decisions seems to
V to tffeetuate the apparent intention of the
prtiesatthe time the article in ipiestion Wius
tolled t(i the freehold, I )efendant leased land
It,) M. fur ■-'.') years for the purpose of boring for
dalt, or minerals, M. was to be aUowed two
Ttars tor testing the oil-bearing character of the
when, if oil was not found in paying tpiiiii-
ities, the lease was to be null and void, A steam
jiiif w.is jilaced upon the land, fur the purpose
ilnlliiig the rock and experimenting for oil.
[hrtitedou sills let into the ground, and was
ittiitd to the sills by bolts and spikes. It was
ihr to others which it appeared were mova-
le, ami were used on the surface for the pur-
se (if sinking .shafts to test whether or not
lere was oil there. The two years having
ihistd without M. obtaining the oil, defendant
'ttlareil the lease forfeited, and resumed posses-
aot the land, and claimed the engine as part
the freehold :— Held, that under the facts
.>eii, the engine was not a fixture. Burn-
I-,!,-/, V. J/.i/r«,s 17 0. r. 4,30.
An engine and boiler put into a carpenter's
iimlniamifactory of agricultural implements:
iclil, to be trade fixtures, and removable by
tenant. Pn>ii"uei/ v. Giinui/ et al, 37 Q. B.
. See, also, S. 'c. "SG Q. B. 53, p. 1537.
Held, that neither the increase nor reduction
tlie rent, under the facts stated in this case,
rated as a snrreiuler of the term, and accept-
ce iif a new tenancy, so as to prevent the
its from claiming the fixtures. lit.
A greeii-luiuse conservatory and a hot-house
'lied to the freehold, were held not to l)e re-
lOTaUe liy the tenant. Also, the glass roof.
nii&iirv. Parbr, 18 Chy. 2G.
t uiaehiuery for heating green-houses which
Oilier <'((,</■,•!,] -Trespass against the sheriff for
seizing under a fi. fa. The goods in ipiestion,
an engine and boiler, hail ))een in a saw-mill
which was burnt down, ami remained there,
set in brick, and bolted to timbers let into tlie
ground. The .sherifl' otl'ered them for sale while
n> this state, but there Were no buyers, (hi the
return day of the writ the execution debtor sold
them verbally to the plaintifl's, wdio detached
them from the mill, and removed them to another
place, where tlii' sheritl' follnwed and sidd under
a veil. ex. : -Held, that the first attempt at sale
was clearly illegal, .'is the gomls were then fixed
to the freehold, and could not be taken as cluvt-
tels. C^ua're, whether the verbal sale was effec-
tual, or whether the Statute of Frauds would
apply. Semble, that it Would not ; but that the
sale would in effect aninunt <inly to a license to
the vendee to enter on the land and detach the
goods ; and Quarc, whether on being so .severed
the fi. fa. would not attach uiionthem. H'li/lna
ctal. V. Jin-rlit, V.\ {}. H. CKi.
After a second trial it was held on the same
facts, per Robinsiui, ('..I., and .McLean, .1., th.-xt
the engine and builer while Hxed in the mill
after tlie tire could not be seized as chattels.
Per Burns, .1. — By the fire they became chattels,
and might have been seized. S. ('. 14 *}. B. (140.
On the death of the owner of a distillery, the
still goes to the heir or devisee with the realty.
MvLmcti V. Couiiili.'i, Iti Chy. r>87.
The widow professed to sell the proiicrty, but
hiid no authority to do so under the will, except
for her own life ; the purchaser removeil the
still, sold it, and ])ut in a new one. Finding
after the widow's death that his title was defec-
tive, he removed the still, and it was — Held,
that the devisee w.is not entitled to have the
new still restored, but was entitled to the value
of the old still. //'.
3. llottPuh:^.
Hop poles left standing in the ground after the
hops have been gathered, are not distraiuable.
Robinson, C. J.
B. 34.
.n
iss. Altrai/ V. Anthrsiiii, .5 Q.
II. Contracts REsrECTixii.
The plaintiff contracted to sell a lot of land
to A., who .agreed to buihl a house upon it. A.
put up the house, but the iilaintiff refused to
open certain streets, as he had agreed to do, and
the lot wiis ' > conseiiuence inaccessible. A.
then assigned to defendant, who removed the
house to another hit, which he also had agreed
to purchase from the plaintiff ; and after such
removal the plaintiti' executed a deeil to defen-
dant of this latter lot, with all the buildings
thereon : — Held, that notwithstanding the ileed
the plaintiff might maintain trover for the house
so removed ; but the jury h.aving given only
noniin.al dam.ages, the court, under the eircum-
stiinces, refused to interfere. ( 'Iniftr v. Ciillodni,
15 Q. B. oS'J.
B. mortgaged to the plaintiffs certain premises,
te liy its own weight on bricks, and was not i together with the water wheel and tlumes, out
f A
ir.r)
FIXTURES.
Ur,
linusc!<, lniil(liiii,'M, w.'iys, w.-itcrs, M-atcrconrsos,
iiii\ili'i,'fH mill ;i|i]nirtt'ii:iii(.'es to tlio siiiil i)rciiiisc»
Ik'Imii},'!!!;,' ; ami iiltriwanln iiiurtgagcd to II. the
satui' pi-i'iiiiscs, clcsi'viliinj; tliuiu aw tlK- wonllfii
MiirUs, anil al snail tliu lire ciijiiiif. Imiloi', ;.: '•liin-
rrv anil tixtiiri'.s, ami tlii' water wheel, ami all
tixciliiiarhniery, ,Mml sh.-it'tiii^aml lixturesnf every
kinil aliiPiit the same. ,Sul(sei|neiitly ti) the iiinrt-
gagi^ til the ]ilaiiitill's there were placed mi the
jii'einises eertaiii Imims, s|iiiiiiiiigmaehiiies, war]i-
iiig inilis. ami various other artielen of the same
kiml, whieli were .seeureil by nails ami serews to
tlie tloors, ami by liraees seeureil by serews ami
bolts to the eeiliiig, but eolllil be easily removed
without injury either to the ]ireiiiise» or to
tiieiiiselves. In an aetioii to try the right to
this last mentioned luaehinery, it w.'Vs -Held,
that the terms of the niortg.ige to the jilaintill's
imlieated an inteiitiou that the lilaintiU's should
not have a claim upon any portion of the machi-
nery in the ]ireniises exee]it that only which
related to the motive iiower of the mill. Seliible,
that though the machinery might for many piir-
jposes ha\e lieen looked u|)oii as (i.xture.s, yet as
between the ])laintitt's as nioi'tgagces and 1>., ami
all iicrsous elainiing under him, it was not so
annexed to the freehold as to be irremoval)le by
the latter. 'I'lir (irt-nt \\'t'--<lcrii Ittiilirini Cii. v.
Biiill, \-^ ('. p. iOl.
Qua'fe, -as to the general right of a mortgagor
to remove from the niortgagetl preiiii.ses maehi-
nory of the kind annexed in such a way to the
freehoM. II).
(ieneral review of the authorities both in Kug-
laml and this country on the subject of lixtures
since Carseallen r. Moodie, 15 i}. B. 304. Ih.
Action on a covenant in a lea.se, that ilefeii-
dant had not incumbered, charged, or ntl'ected
the premises leased in any manner, and a.ssigning
as a breach that A. and B., claiming under the
defendant prior to the plaintill's lease, and hav-
ing a right to certain fixtures on the kw^ed ])re-
mise.s from the defendant, would have entered to
remove them, if the iilaintitl' had not iiaid them
for them, i'lea, that licfore the lease to the plaiu-
tirt', the defendant liid leased the same premises
f(U' live years to ('., who had a I'iglit, under the
lease, to the fixtures, which were trade li.xtures,
and that (.'. assigned to A. amlB., who claimed
these ti.\tures as trade tixturea : — Held, on special
dcmui'rer, plea clearly bad. Ctuiii-ruii v. Tdrrntt,
1 Q. R ^\-l.
IJefeiidant leased a building to L., for the pur-
pose of a mill, with certain special recitals and
agreements as to the machinery. The assignee
of the lessee sold the macliinery to the plaintilf,
who was taking it down when the defendant
prevented him, and the plaintiff replevied. De-
fendant pleaded only tliat the machinery was
not the plaintift's : — Held, that the plaintiff was
entitled to recover, for by the terms of the lease
the machinery was expressly made chattels and
the property of the lessee, and though defendant,
after it had been detached from the freehold,
might have distrained npon it for liis rent, yet
he iiad not idaced his defence up<m thatgnmnd.
Da VII y. Li'Ii-;.,, 18 Q. B. 21.
In an indenture of a lease, \). covenanted with
A. at all times during the term to repair, sup-
port, amend, and keep the demised premises,
with all necessary reparations and amendments
■whatsoever, and the said premises so repaii-ed,
"with the appurtenancoa, and all tliino^ ,vliicl
at the time of the execution of tlic sud j,„],,, '
tiin^were, or at any time during the term .<li,„'|U
be fixed or fasteneil to, or set up in nr nii,,!, tl'.
premises," at the expiration of tlii' tcnn, u^.^^,^
ably to yield up to A. " with all ami «iii.,'iil;ii't'|',^ i
lixtures thereto lieloiiging," in as giKj,] n.niliti,!,.
as the same were at the execution nf tlii. iiulp,, |
ture, re:isona))le use excepted : -^HrM, tlpit the I
covenant extended to a building restiiic. m] l,],,,,].
of wood, not let into thi' ground, alsu to ;i l,nj|,|
ing laid upon scantling and old pn.-its, 'ii„t Jcj I
into theground, all placed on the ilcniiscil inv.
mises during the term. Alliinlln' y. JJi^f^|| ||(">
r. -JTs. ■ ' ■
111. ViiHN IIkmo.aiw.i:.
T. K. & t'o., i',.rrying on business us . -iiiti"
ami \ilunibcrs, contraeti 1 verbally v ,.;, i ., m]
hotel keejier, to su]i|ily a new iintii la- '«,ijl
erecting with various aiticles in the Wiivni tlnirl
traile, which were to be ]iaid for a- tli'M\..||iI
jirogressed. I), afterward.s left tins pnivin,,. ,.,(1
account of ill health, having previiiiis|y(xii.utiil|
a power of attorney to one S. , autliui-izini; |,|,n|
to carry on his business during his alisuinv.
K. it Co. having diseoveivil tliat I ». 's i'4;itr Wi\j|
greatly involved, refused to pidcccil with tlniJ
contract unless secured for their work ami matej
rials ; whereupon S., with a view of iniiurJnJ
them to comiilcte their contract, in imrsuiiiui .S
a pi'evious arrangement, execute/ ■iuoh att'prJ
ney a chattel mortgage of the gi.,,.i. hmn>\
by them, secui'ing to them payiiaMit of theii
denuind. At the time of the exccutiuu nl thi
instrument 1). "was dead, but this fait \v:i> iiol
known to the parties until some time aftir tlif
eompletiim of the work : — Held, rovtrsiiii; thf
decree of the court below, that T. K. i- ij
were not under this mo'-tgage entitk'il toiviinrvl
any of the fittings jiuc in the hotel; tlirir "iilJ
remeily being for the price of tii''ir \V"iiv ;iii|
material under their contract witli It, .ki>iiiie(
r. \Vorthington, 7 t'hy. Iil2, ilistint:iiisla'il anil
aiiproved of. Mc'JnexU'n v. ThiitiqifiiH. i 11 1
A. KiT.
The weight of authority is, that a tenant maj
remove trade fixtures which he might liavt
moved during the term, if he iviiniins m lawn
possession after the end of the term, \\»\A
possession of the premises under a right still t
consider himself a tenant. Declaratiun, that (I|
fendants being in possession of certain iirniiisi
(described) as tenants of the plaiutitl, wrunutiiD
pulled down and carried away certain tixtim
I'lea, that the ju-emises were occujiicil liyilefel
ilauts as scale makers, having long liufniv
let to defendants ami others for earning
their trade: that defendants and ntliers, lursuj
purpose, during their tenancies, imt up tl
lixtures, (describing the fixtures put up liy eaJ
and the others, during their teuaiieies, siJil m
conveyed their part of the lixtures to clutemlanf
who took possession thereof and nseit th "
3a,id premises in their trade ; and liein^'s" J)^
sessed, they, during their tenancy, pnlleil
and carried away said fixtures, doing no mil
cessary damage. First replication, as 1
fixtures put up by the others, that they \v(
not severed or removed during tlie tenancii'S|
the parties who atlixcd them, nuv for a hmg tU
afterwards :— Held, that the rejilicationwa.
for if defendants owned the tixtures, awl
iVllll !lll tl^ll^^ wliioii
ion III' tlu' s:iiil iiiili'ii.
ilurinj: thi- tcnu sluiuM
r Hi't iqi ill iir iiji.iii tliv
on I if till' tfini, \\v^i:y.
\,\th (ill !iuil sii|...ii!irtlii!
;," in iis i:iiiiil n,ii.litii,:i
ixfinitiiin 111' till' iiiilfii-
L.jitiMl ; -^Hi'U, tlrittlie
iililini,'n'stiiii;Mii lil.«li^ |
uriiuiiil, hImi t'l a Imilil.
mill iilil liiists, Hut let ]
'il nil tlic lU'iuisi'il lire.
|//,i,'i/i'v V. Dl^Uii, lU'.
llKMin-.vm.r.
(Ill liusiiu.'ss lis .. ^litteiil
I ] vfvlially v.ii. ii., aul
y a now Imtil lit' Wiisl
■tick's ill till' way ni thtiri
lie (laiil till' ii> till.' W'lvkl
:ivils li'l't tliis iiniviui.'i' nal
iving prt'viiiusly i'\i;i.-uti.'il|
11110 S., MUtlmriziiiL' liiml
< (luvinn liis iilisuiia'. 1'.!
•ol-oil tliiit l».'si'st;iti.'\v,v
0(1 til |iriioi'i'il witli tli.;iij
I for thoir wiirk amlmateJ
with a viow nf iinluriiifl
[• ciintnu't, ill imvsn;iin'iii
it, oxociiti." "Ui'li :itt"i
go lit tlio i;"" I' funiishpi
I tlicin payiiK'Ht III tlii'il
,0 of tlio oxi-'eutiiiii lit tliii
•ail, Imt tlii^ I'lU't w:i> uo(
until siiiiio tiuu' alter tld
iil'lv •.— Holil, Vl.•v^■l•^ill: t'ul
lliolovv, that T. K. iv I'o,
II ir
i,i,i:
FLOUR.
i.');w
auo cntitK'il t.nviu'ivl
in tiio hiiU'l; tlu-'iv "iil|
irioo lit' tli"ii' W'lvk :itt|
lutract with !». 'l^i'M'"
lit'2, ilistiiii^uiNlii'l M
ten V. Tli"i"l'f"i'' - '
^ 1
ly
ority is that a ttiiaiit niaj
wiiich lio ii>i,^l>t l'''^'
if ho ivniaiiis in hv
end I if tUo tonu, li'-Mu
msesniiilor a n-lit ^till I
ant. Doclaratimi, thatil'
,ossiim of iH'vtaiu I'V im^L
of tlioiilaiiitill.w!'"ii-i«ll
■icd away oovtaui tixi»r«
■s wero oocuiiu'il livil'jia
having h'»)i '"^■'''"■': '"^
,1 othoi-.s for '-''i''''y'"n 'j
,aantsanaiitlK'VSl""1
r tonanoios, imt "1' 1
lotixtuivMiutuiiliye'iicll
■r thoir touaiu-H's, sM ai
. tholixtuivstn,k'U'i.'!»i'l
Itheroof anil iiseilllKml
Ir trade ; '""^ ''^'"'- f.l
Iheir tonauoy, V>'1'^">'';
ll tixturos, iliini'^ 1'" "™
i-st i-oiilii'iitii'ii. f "' .
L others, tl.attkywj
lod during the toiiam.'io^
I them, nov fur 11 lull-' 2
liatthereiilii^^tiinnv:i>'<
Inod the lixtiuv*, m\ }
iveil tlieiii whil.st ill jMis.sessioii of tlio prcnii.'^oM,
I , fij;lit til eiinsiilor ttioliinolve.s tenants, the
, , .'(,1 reliio^'e tlieiii " fur a loiiy time" wmilil
"L'^.ii,i,litr.i'oiieo. Held, iilso, that the Jilea was
"'..1 There wa.s an ei|iiital)le lojoiiidor, wliicli
T'tmit ill tlie i'ol"irt, the validity nf which was
' t ik'fiih'il. ■'^eeiinil ri'idieation, that the lix- ^
I !", ., were so allixed to the luiihliiig's mi the
I iiiisi'il iiiviiiises that they could not l>o reiuoveil !
^^[i,|,„t injury to the freelndd. Kejoiiuler, that '
I tkv wi'i'e ''""■■'' t''"''l'' lixtures as in the (ilea!
1 lie 'I'll, aliil were iviiiovi'd without causing more i
niiiivtii the freehold than Mas iicniiissililc liy
ih'iiivs nf (liitario eoiiceinin,!; lixtures ; -Meh!,
iht tliL' reiilicaliou and rejniiider were liotli
i ,,<!■ tliilt it might he a mixed i|iiestioii of law
Uiiii iiu't. whether the allegi'd lixtures wore so
iiiilii''! tli'''f tlicy could not liy law he rciuovcd :
I i]i4tliiit tile ivjoiiiilor might lie eoiisidored .'is
LiiilMi'iiial jiiiiiiler of is.sue. 'I'he third leiili-
I fjti.iii sit up, hy way of ostopjiel, a surrender in
KjliVik'tVliilailts of the lU'oliiisos to <ilie('., the
j jlijii I'miier in fee, and an acceptanco of a new
Iwii'iiiii '•■ '""' that ('. aftcrw.'irds eonveyod
If, let til tlie iilaintilV, who then saw the now |
I lOM'. aiiil was inforiiied and helievod that the
I nil livtures forined |iart of the freehold ; and
Itlut ikl'i'iiitiiiit'* afterwards lioeaine jdaiiitilV's
I teMiit>. Kniiitahlo rejoinder, that liefore the
Liiivivame hyC to the iilaintitf, the plaintitV
Ibiriv'tliatik'teiiilants wore in actual occujiation. ■
I djiiiiiiii; mil' ii'*iiig' !''! **'>''' fixtures as their own, ,
luilwastiilil l>y ('. that ho did not own or elaiin ;
Itheni, aiiilmily sold to the plaiiititt' the iiremises '
lintlii'iit tlieiii ; and that the iilaintitl liy reason- ,
lllile wiv fiiuld have ohtaiiied full inforniatioii j
Ifrinnleiinilaiits hut negligently omitted to do
|iii:-Hi-lil, that the replication was good, and
Itltrejiiiiler had. I'rnnijHfii v. (I'liriiri/ it ii/., 'AH
\i\',Xi See, also, S. ('. 37 Q. H. .-UT.
Seed'ioi/ HV. </(/■» J{. ir. Cu. V. liitiii, 13 ('. P.
I»:.p.i.jsr..
IV. IvKCOVKKV OK.
In tii'.'iiass fur taking away mill machinery,
lnillitiiiWH. wheels, ito., till.' defondaiit pleaded
In i»i.*st.'sseil, and it appeared that the injury
IvK ikiue liy severing lixtures in the mill and
Ititiii:; thi'iii away : — Hohl, that the action would
Ik .i>«liiii tliey were severed they hecanie per-
liinal pniiiirty. for which the owner could iiiaiii-
Itoi ti'isliass. Ml i/ii:i V. Miu:<h, '2 (}. ]'>. 14S.
htresjiass, it was Held, on motion in arrest of
litilgiiMit, that the word "lixtures"' in tlio de-
liiir.iti'iii iliil lint necessarily mean things at-
IkM til the freehokl. .V. (,'. .//>., 185.
Tmvlt raiuint he maintained for a Hxture so
it remains annexed to the freehold.
hi.s\:i\i,ii,rnii, 7 Q- l>. •2-2S.
I k civilitiir having execution against lands,
wii't ilaini fixtures which do not holong to his
iM. iWiiin, V. ,SV(!/r, 1 1 Chy. I'.Slt.
FLOUR.
I. Bkaxmxo, 15.S8.
II. INSI'EITIOX AND Warkaxty, 1538.
97
111. CoNTUAiis Koit MantI' vcriiaNt; Whkat
i.srn Fi.diii, 15,'JS.
T\'. ('i)NTi(A('Ts Koii I UK Sai.k ok -.SV< Sai.f.
(IK ( looDS.
\'. W'AIIF.IIorsK llKCKII-rs - .SVi Mll.l.s OF
J.AiiiM; ASH Waiik.ihiisk HEiKirrs
— \Vai:i;iioiskmi;n.
I. IfKANIIINll.
'I'he seller of tliiur in harivls not marked or
luanded under t iV ." N'iet. e. .S'.), s. ■_';>, was not
lialilo to the penalty iinposod, only the manufac-
turer or packer ; and magistrates h.id no sum-
mary jiuisdictiiiu where the afciimiilattd peiial-
tii's Wero more than flO. /,','iiiiii v. 11 'Lufiii,
•-• (,). 1!. .-)7.
Where the iiispoi tor in a enrpor.iti' town Mas
the ilifiirmcr, he was not entitled to half the
penalty. /''•.
II. TvsrniTiiis ANH WAnI{A^•T^■.
Held, that under the circuinstances of this case,
the ]ilaiutill' w.is entitled to recover, hecauso
certain llmir sold to him as " X'ictori.'i Mxtra,"
had not passed insiioctioii as "extra suporline."
niniiiil \. WhUliiir, |4(,». H. '241.
Where llour is guaranteed to iiisiiect of a ]iai-
ticular grade, such as "No. I siqierlim''," it must
inspect sweet of that grade. Ilnin v. d'um/i r-
lutiii ft ill., 15 (,). B. 3;?.'
AVliero a person iiiaunfacturiHg llour marks it
as of a particular (piali'v, that ainoiiiits to a
warranty of its heing sueh ijuality : -Mold, that
in this ease the evidence of represontatniis made
hy the seller at the time of sale wore .»utliciont
to warrant the jury in lindiug ai> ^.liiiress war-
ranty. C/iis/iiiliii v. Prmiilt'i.uf :.j (,{. B. I'OS.
III. CllNTHAITS Kill; MaNTKAI TIIMNK 'Wl.KAT
INTO Fi.orii.
Semhie, that if in an .aotiouupoii the case for not
manufacturing 4(H) hnshels of whe.it into liour,
the idaintiff rooovor the value of the wheat de-
livered to defendant, ho cannot rocnvor for goods
sold for part of the wheat which had, in ])oiiit
of fact, 1)0011 re-dolivorod to the plaintitf; and
that such re-delivery should have lieeii proved
in mitigation of damagos ; and that an action
upon the commoii counts could not at any rate
ho sustained. AiiilrHx v. linnnll, 'I'ay. 382.
In consideration that the iilaintill' would do-
liver to dofondant "J, 000 Imshols of wheat ;
defendant promised to deliver to him, within a
reasouahle time therofroni, ."lOO liarrels of llour :
Held, that " thorefrom, " must ho coiistrueil
llii'nii/tii; iiiid not that the Hour was to he made
from the identical wheat delivored. It waa
therefore clearly no dofoiice to plead that the
defendant's mill, containing the wheat, was
Imrnt down without any iiegligonc(^ on his part;
though he would have lioeii excused in that ease
on the other eoiistruction of the agroomeut.
Tilf V. Silvcrthorni; 11 Q. B. (ill).
The plaintiff, having ])nrcliase(l a (luantitj-
of wheat, defeiulant agreed that, on eondition of
'i'
i, -A
%
■ i
WRW
i:)M
F(J11E1(JN LAW AND FOIIEKJNKR.
1540
tli(^ lilaintifT ili'livcriiig to (k'fciidaiit wliciit of
llif KiuiK' <|ii,ility us tliu HimiiiK,' jn'oviimsly hIuwii
to tiufuiiiliuit, to lit! m'l'oimil into lloiir, tlit! ilctVii-
(liiiit \voiiI<l iiiiiiiiit'uotmo the waiil wluMt into
llour, uiiil for ivfiy four Irnvsliels anil forty
])iMiiicl« of wlioat, of tliu i|nality and ui'oordinf;
to till) sain))lo ri!('uivi'd, In; would deliver oni:
l)arrel of (lour wliicdi siiould pass iiiHpeetion
as sujierline at Montreal : - Held, that the eon-
tract was Hot a contract for tiic sale of the wiieat
liut an ajireenu'ut to manufacture for the plain-
till' the identic d wheat delivered into llour ; that
it was a comlifion jireccMlent, on the idaintill "s ^
part, that the wheat delivered nlioulil lie of the j
same (|uality as the sample ; that an aci'eptanco j
of the wheat hy defendant, anil his nianufactur- |
ing it into flour, did not cause the rules jirevail- '
ing lietwecn vendor and vendee to apply with i
t'lplal force in this case as in the case of an ab-
solute sale, toconclude the defendant fromaftor- |
wards disputiui,' the corn.'spondcnce of the wheat
delivered with the sample. Sli /ihi nson v. Umi-
li'H, 1.M'. V. li)li.
4.
T).
(1.
8.
-Si,
mil.
iis<iiTr.
liANK.
See, also, ^f<i.<(i)i v.
Co., :ji (,». 15. T.i.
Till- (.'rent n'c.'tlrni /.'. jr.
1.
FORC'IRLH HXTRY.
Sa' C'kiminai, \j.\\v.
FOTJECLOSURE.
?iIoiiT(;.V(iKS |)K L,VNI>.
A(jaiii.it liifdiit-i — .Src Infant.
A(jatii.<l (it/i'f P<r.'<o>i.i — Si'c Moktciaiie.
|-(»UKI(i\ LAW AND K()l!EI(JNK|t.
I. Fimr.KiN Lasv.
1. O/iirntlnii iif, ir)40.
2. I'/i iii/iiii/ mil/ /'riinf' ni\ |;i|;j
;{. /^(iir.i iif /jiiii'if Ciiiiiiilii.
(a) l/cmrii/li/, 1,")44.
(b) :fo/!n' I,/ l>i'<li<iii(,iiri,f lt\}l,,i,.„„.^^
or /iiii/iili/i ill l.,iii-ii-i;,,„„i„
Hll.l.SOK I''.M1I\M|K AMi
soKV Nirn:s.
Cniint'iliifiiiiiiil I, mi' — .V,,. Ci
TiiiNAL Law.
D'liiikili' — Sic hoMlrn.i;.
h'tii-nijii llmi/.-ni/iirii /,,(,r<_,v,,,, ].^
m TTiv ami Insoi.veniv.
Funiilii liill.'i nr Xiiiis -S,, Wn,^ ,,j,
KxcitAMli; AM. !'lfoMls.so|iv.\„|.j.,
Fiii-iiiiii (Jiirpiiriii'iuii.'<—.Sii (ViHi'iii't.
TIOSS.
9. Forrh/ii Ciirrciii-i/ - S.. Bn.i.s m i.^. ;
CIIAXUK AM. l'lM,M|s-i.|;\ .\,,||.-,'
MONKY.
10. Fofchjn Jllf/f/lllllitA - Sr, .lrii|;M|,;M-
11. Fordljn Pfoliltfr-Sr, Knki irn|;> \su\
Admisisthatous.
12. Forciijn rr.v.ic/.s — Sif Smi',
IL FoRKKiXKli.
1. Alicii/i — Scr Ai.ir.N.
3. A rri:il of — Si'i' A k h kst.
4. Extradlliun of— Set- Kxthamtkin,
III. Miscellaneous Casks, l,)4(j.
I. FoKEiiiN Law.
1. Opi'ruthn of.
he mortgagee of chattels, like the mortgagee .
of real estate, is entitled to a foreeh.sure in " hero an insolvent is dischargeaf.-,.in anvsl
default of pavnient of the amount secured there- | '^y foi-^^'g" Juitlii.rity, the court will unt si t .i-iilal
Ijy. Cock wFlooil, .') t'hy. 4()3. '^" arrest made under the process i.f tliis cmirl
for the same cause of action. Jlivirn v. llinhnid
\\bere a party held a mortgage on chattel 'Puy. 3!)0. See, also, Jhu-icnml, v. //,.r-.»U
property, find also mortgages on real Ciitate, '■ Tay. 438.
the court refused to make a decree for sale
of the chattels and of foreclosure as to the ! ^ I'lea that the ilefemlaut ami iilaiutiit wit
realty. ///. i '"'t'l residing in a foreign coinitry wln'ii tifl
. . . , ,,.,.., ; cause of action accrued, anil tlcit liv tlif laws
A mortgagee or judgnient creditor of a railway that eouutrv the defendant is ilisciK;ri.vil Wx.m
company is not entitled to enforce payment of „„ ,i,,tio„ was brought within six vears, tluile.
lis demaiul by sale or foreclosure of the railway ; i fi,„,lant and plaintilf having l.utirrcsi.kil then
he IS only entiled to have a manager or receiver .iiiring all that time, was held hail nn ..dan
(.ttheuiidertakiiigai.pointed. (laity. Lrir mid aemiirrer. Hart w. WlUon. i\ (). i<. \'X
Mai/ara It W. Co. 14 t'hy. 4!}!).
^ , ,, ,, , . ,, . . ,, AVlicrc a bill is made paval.le at a iiarticiilai
Quierc, whether the rule is otherwise in the i^^^ j„ ^ f,,,,^.; couiitrv,' and tluno is „ii.rfl
case of a vendor seeking to enforce his hen for j ,\^,,^^ „f p.-egentment there, m.r of the law J
unpaid purchase inoiiey. //(.
FOREIGN A(}GRESSIONS.
Sae CuiMiSAL Law.
FOREIGN ENLISTMENT.
.SVe Criminal Law.
that country on the subject, the iiueL'ssity 10
presentment must be deterniiiieil by mir l:i»
Biillah Bank v. Trn-tcott d a I., M. T.' •-' Xkl
Where in an action of assumpsit mi a cull
tract against executors, they pleadeil thai tl^
cause of action accrued in Scotlaml, ajjaiiist tH
testator and one A., jointly ; that A. is stj
living, ami that by the law of iSontlaml, whefl
the contract was made, if one of the jiartii-s f
a joint contract die, his personal reitreiuntitiif
are discharged, the plea was held hail on goiiet|
demurrer, as by our provincial stutiitc 1 \ id
R)|{HI(!N l,A\V AN'I> TOUKKiN Kl!
IM:
) KoltKIcNl
■ (■imi-t will lint s.t;i-icl«
idaut and iilaintitV «f
l.i.ru cinniti'V Wlll'll t
and tliat liv the lutt> «l
Ivitliin six yea
,d there is iw ' nj
I, T. tlio 1"
,ei'siiiial I'fliri'Sfiitiitivt's (if ii jciint ciui- vimis loiisiMit in writini;; and that tliry nt'Vir
;uv inadu lialilo notwithstanding the ciinsiMiti'd to any a.tsi>,'nni(nt ti> thi' idaintillH,
siirvivi
no tluTiiiu.
'I'., tl
trii'
■tnn II!
l^liiiiiit' the iitlier, and tlii' lex Imi cnn- wlm, thficfini', innld
piilics (inlv tl) till' contract, and not to the |jlaintiir-< iiiiliid, that alter tlit- liis.-i on the
vineily
(;;/
v.(
(/., ll.T.liVict
jMiiicy hai
I been Hiistaint'd, M. a!<Mi>,'ncd to tl
11 Id, tli.it a foreign legislature eoulil make ni
ilaintills his rii^ht of uetion for the leeoverv of
Ijiv tri'
iitiiiif a Ml
n on legal estate in ( 'anada, and
the inonev niyalile therefor, and the .said I'l. not
fllllWfl'-'
tiy that anv eontraet foiiinleil on sneli a ,
lenig a resiilei
it of the St ite of New York, tin
ratiiMi «a.s voi
iiiiti
Mn/i^
', idanitills, 111 aeeordaiiee wi
itii the law.s of that
1 /... ('"
('. was ill'
II', •.////«(», S (). It. 4H7
St ite
there III tl
leir own natne.s jis siieli
assignees, ami ri'eovered jndgnieiit, as liy tli(
U'htoil to tliu jilaintill', whose vessi 1 laus of said Stati' they hail a right to d
liii'i
: fct'ii
Sll'l 'li'
I llilill"
I BHl 1'
hiU'teieil to carry et'rtaiii liiinlier lieli
i.tfinliiiits from
lai
( Mtl<tle
Meld, a good rc)i|i(ation, for defciidant.s liy their
limits from ( 'olliiigwood to ( 'hicago, acts of iiicoriioratioii lieing evidently desigiieil
iitili' having threatened to detain the ' to carry on the Imsiness alu'oad, and being le-
its arrival at ( 'hie ago if his I laini was dared lialde on |iolicie.H issued in the I'liited
rtHs .old liy del'eiidants that it would States or tdsewherc, it could not licassiinicd that
I (Hit of the inoiicys coining to ('. on this jiolicy was inide in I'lpjier ( '.iiiada, and if
iif the vessel. (,>ua>re, whether the niiile in New N'ork the law tliiiv would gi
■r nil
aid, WHS .1
fhiiitilt's li
irlioai
iiig to detain defeiidaii
its' 111
I'er llagarty, .1. The assigiiiiiiMit of the right of
lie Ind tlireateiied W(nil(l have licen sulli- action a
«llt oiiKi'
ftcr the loss was not a Ineac
ot the
loratioii, it licing unknown
to th
I wrt'.t
lull 'nc
tlior the law at Chicago W(nild alh
onditioii ; and thi^ right of the iilaintill's to suu
"le foreign law was a
111 their own niiiie
tl
h ri"lit, though our law clearly wmild (luestion of iirocediire, on which that law niiist
t"I.
M'-i'iirl'i V. Jiiiiiii.i it III., 1.') (,". |{. •_'.'
lerii. Ill another Jilea the defendants set Uji
Iifliratiiiu ell fi pnlicy "f insurance on a lu'o- j
I'lua, that the vcssid was lost in Lak
ith
fiirtl
ISS til'
ler jnovision in the iiolicy
that
III case ot
WOllll
be jiaid within sixty days
j|n.lij,_,iii liy eiiiiiiiig into c(dlisioii with ,a schooiii r
in Ameneiiii waters, and that the right and
ialiilitiu.i under said jiidicy on account of such
^|i^i"ll iiiiglit to be governed by the laws of the
I'liittd States, according to which all steamers
Mitiiteii "lit of the way of sailing vessels, and
iaasonf eullisioii and loss occasioned thereby
V.iht steamer, it is presumed that the fault was
ItrNJinl lier owners cannot recover from the
(MiTs lit tlie sailing vessel, or from insurers ;
tit tile iilaiiitill's steamer did not avoid the
scWunr lis she might have done, whereby the
TOtk was (leeasioncd. Keidication, that the
tbintili's vessel did not collide with the sidiooiicr
iii'li the want of ordinary care and skill in
Bvi.'iitiiy lief, such as is imiiier in the iiaviga-
(fant tile likes. Iicjoinder, that the jirojieller
US an Anierieiui vessel, sailing under Ainericau
l«liiir^ iiiiil ill American waters at the time of
:tiel"5s; that the defendants are an Ainericau
jwiaiiy : tliat hy the American Law, as the
jliiiitili' Well knew, the schooner was ju.stilied
Imktfi'iiii; lier eiuirse, while the steamer should
kftiiriieil (lilt of her way to enable her to do
a she iiiiglit have done, yet the steamer's
iii«w;us lint altered, as it easily might have
eDiaiid siihy reason of the said facts the coUi-
■uilid t;ike iihiee from the want of ordinary care
ikiU iu navigating the .steamer. Siirro-
fflk, that the steamer was not lost through
»:mt iif iiriliiiary care and skill in those
rating her, as alleged iu the rejoinder : —
iin deuniiTcr, that the surrejoinder was
As til the plea, — Hold, that the allegation
Milt of oare on the plaintiffs' part formed no
:kce; ami that if it had been averred in the
dmtimi that the eontraet was made in this
iviiiif, the Aiiierieau law would not govern,
igh the liiss liaiipeiied in their waters. Palti'f-
V. 'I'h. Cmtincii/dl Jus. Co., 18 Q. B. 9.
Toanactiimon a judgment recovered iu the
ifttme I'mirt of the State of New York, de-
lants iileadcil that the judginenfc was on a
B' of iusuraiiee made by them to one B. ,
li ciiutaiiieil a provision that it slumld be
111 case of being assigned without their jire-
Ui
after proof and ;idjustlneiit, and allc;;ed that
proof or adjnstnieiit was ever made. The plain-
tills re[ilieil, that when c.illed upon to pay, de-
fendants refused, not for th'' want of such iiroof
or adjustnieiit, but for other and dillcreiit reasons
allegi'd in \\ ritiiig ; that they thereby, according
to tile law of New York, waived the eoiidition
pleaded, and under said law becaiiu^ liable, .and
said judgment was recovered, upon proof of such
waiver, witlmnt any evidence of proof or adjust-
ment. Held, on demurrer, replic ition b.ad, for
as the same defence could have been pleaded iu
the original suit it iniglit, under '-'.'l X'ict. c. '24,
be set up here ; and wdiether the condition was
w. lived or jicrformed was a matter of evidence
only, on which our law must prevail. W'lnidill
if It/. V. 'J'lii' /'roi'liii-liil In 111 ni lie Cu., '2] i). I>. liPJ.
I A contract for the sale of goods to plaintitl's
at a certain [nice, jiayable in 'i'oriiit( , was in.ide
by defendant at Chicago, through his agent
there, the goods to be shiiiped by the (i. T. It.
from 'J'oronto. No sold note was signed by the
broker until after action brought for the iioii-
! delivery ; but it was proxed tli.'it the ITtli sec.
of the Statute of Frauds was not in force iu
Illinois : — Held, that the contract being valid
where it was made, could be enforced here,
though not in writing, d'rtcii i.lnl. v. J.i iri<, 2i'>
t,). b. U18.
I A jiolicy having been prepared in the United
States, where defeuilants were incorporated, and
transmitted to their agent lieri', with whom the
plaintiti' insured : -Held that the law of this
country, and not of the foreign country, should
govern, the contract being in fact made here.
i Mi'iujliir V. Thr J'Jm Jus. Co., 'JO (.). 1'.. (il)7.
1 The plaintitr in' ejectment claimed as heir of
his father, H. , who it appeared, while a slave iu
the state of Virginia, had in IS'-'o been married
to the plaiutill's mother, S., also a slave. Tlio
man-iage was performed by a Baptist minister,
with the usual cereniouj% and with all the for-
malities practicable to make it binding, but
; without a license, which slaves could not obtain.
I They lived together as man and wife until 183;^,
1 H, having a house of his own in Richmond, ami
:»
% i
Hrr'f
i.-.ci
F(H!K1(;\ LAW .\\I> KollKKiNKIt.
wcirkiiii; at lii« traili' i\n a piiiiiti'r, |p;iyiii>,' lii'* nf mii' ilcl'iinlimt iiiay l)u muil, llItllll||^||
lllltntiT till' lli.l tlllir, IIM WilM I'llNtiilllMI V
III Ih:i:| mIIii'I' ilcti iiilaiit r<iii'\ ino.
II'
••'1'
il tr
York
I lll'I'l
itlllT
\«iiliiail, \t hllr >. irlliailH
III' iiiai'i'ii'i
il ill l!ii'liiiii>Mil
I T. ;< ViLt.
iiiiii/ \, /,
ainl \\.i» axaiii inaiiiril tlicn
It
waH |ii'iiM'i
tiiat li\ till' la\i III' \'ii';.'iiia, until tin' la.<t tiv
j 'I'll ilis|ilai'r till- ilrlVliru tii a ii.itc, l,y ^\.,
till' lex liii'i ciPiitiai'tilM an ililjiii nt ii,,!,, (|
I'lii^t "' "'" ''"'"^''' "'"''' ''"''''VII law iiiii.t I
1 tL,
iim;i,.
yt'Hi's, HJiwi's \M'i'c iiicaiialili' nf iiiaiiyiiiK : t
to I'liiiNtitilti' a Ntl'ii't li't^ai liiaiiia;;c In t«i'cii tlct' ",'."j ,'■,,' ,',"'.' "'.' .|''" .'i": "i'
Hill nvt Hilt nil
th.
(iri'MuiM a hi'i'iiJtc wiin I'Msciitial ; imt tliac j<iaM'M
('•Mill! Mot (ilitaiii it, III' ill aii\ \tay I'laitiai't a li'V'il
liiai li.iL,'!', liriiiL.' ri'i.'aril(il liy tin' law as )iiii|ifit\
.•II t.i. II. KCJ.
I'll' \Vil>,,
«■ ii'iili, 1
7" \. I ,lhl,.: //^
'''""I V. I',il,l,i;ll
II.
.1., tl
li a \\n*
'■'III l.,r
iiiily. imt iiiTniiiiM. It wah rniitriiiliii that tlif iiili'viny that tlu' iinti', iiihIci' tlic t,i"ti< i.t itcl
Idii'tii'M liaxiiiv' liiiiii' all ill thrir |Mi\\i r til iiiiiUf \iiiilliy tlir law nl' l.Mul hy Mliicli tli
liMt
"• \illiil|tv
tlii'ir iiiai liaui' liiiiiliii;,', it iiiii.-*! In' hclil \,iliil ut' tln' iinfr iiiii>t lir ili'ijiliij.' J'lJn ri^u,, \ I
Ik-ii', till ly iiii|ifiliiiiiiit til it* valiility in Nil'- »•,//. :;| i}. ]',. ^d'J,
f.
una ai'i'^iii'.; iruiii tin
law 111' A:
vi rv, w liu'li niir
iivv riiiilil imt I'l "iiizc
lit,' llrlil, iitlli'I'W ix
for the )iai'tii'H lint liriiiii IWiti h Nlilijirts, as in
It is lint il.'.sirnlili', t'Vi'ii «itli (]
)iai'>.it'.s, that tin.' I'mii't hlioiijil c'niii.t
I'llM.'Ill
lllr l|j,.
liinliii'./ '. .^liiifh, 'J lla;;-. ( 'oiiHi;«t. I!. :iS.->. t
li^^, 111' 11 fnri'i^ii I'liiintiy, iiistcul n| th.' lait
'I «i
valiilitN 111 till' iiiari'iam.' must, arinnlini,' to tin
guini'
il I'lih
ili'ti'iiiiiiinl liv t lit' law lit till'
.s tlu' law tlul't', lii'lll;,' lUnvi'il l.y 1;imvi.
ini'L'ign iimntiy. J/« i';/Ai /■ v. / /» ]/;'/„,, /,
Mt
I -..I Midi
t'Olllitr\ wlir
it wa:< ci k'liiati.1
//./
I'ri.i V.
(
, ;{i (.>. li. is'j.
liaiTiits 111' till' cliilil wt'i'c t'ol'i'ij,'iiri'.-<. 'I'liiy
liait, ami hail li|'nii;;lit i rn^s lU'timiH I'lU'ili-
I till' I'liitiil Stales iiiui'ts, tin.' llU^llallll
chv. :i.-.4.
1111/1111(11, mil
I Ihi ll„,ii. I
ti.tlll'tfUiU f'
•A. I.I
VI 111 'l' II
I'omiilainiii;^ nl ailiiltiiv, ai
Tl
1 tl
n,' w lU' 111 ii'in. Itv.
(a) ^■
I II, I
was iilarci
IV the latliii' 111 I iisti
.1
jicismi in ('ana
•I'll
liaxf the I'hilil ik'livi
(' niiitlit'i' a]i|ili<'il t
st.'itni', liy his will iiiailu in h4i'. .li vi.,,lj
"il in i|iU'.stiiin, Int ,'17, tn his .'•I'li .).,iui,l t,,
Alt
I'll iqi tn lit-T nil till.' giniiml till' iilaiiitill, Ali'xaiiili'i', aimtlu'i' .-nii, Int ,'iL'. I,|]{
that l>y till' law nt' tin; Stato of Michigan slii' ilii'i'ctiil that if .1. .--hiinlil |ii'i'li'r lot .T.' h,' .||„|||,i
wa.s I'litith'il, wlii'ii liviii;,' ajiait fi'inii liui' hiis- takf it, ami tlu.' |ilaiiitill sliniiM tlicn Ji.-n,. |,,{J
Itaml, to the I'listnily nf tlu' chihl until it slnuilil ;)7. IJy a I'nilii'il hi' lU'daii'il his will tn
ivu at the aiji; of twilvi', siilijrit, linwi'Xi r, tn if his snii A. mIihiiIiI imt taki' Imly nn
, tliitJ
till' I'if^ht of tliu I'liiu't tn inti'ifi'i'i' with ami ii'- intiiiilt'il, thru lu' slimilil liavi' Int ,'17, ami,!. |,,t
mil VI' It for lauxu a.ssiyinil, An i'\ jiaiti' miki' ;!•_', ami tliu jilaintill' the \M'st hah nl' Int ;)| ; ;,ii,t|
liail lii'i'ii iiiaili' ill Ainil, Ks7."), in tliu wil'i
■tl
If nlK' Il
nivnl'ii.' sill
t ill ht'i' favnui', ilii'i'L'tini' thr fatlu'i' to tlii' otiu r « ith iniisi'iit of t
rntlii'i' iii.iy I'liaiiui' nr >,.|jl
up tlli
ihl til hi'i'. Ill .lulv, I.S74, till' tl
u'lltnl.-
K' IILljUr |,;llt .ifl
Wltl'
liaiiil
I'hiM
'ivi'ii a tni'ina
1 .1
lilt lint niit 111 tlif laiiiil
I ilinii'llt tn lll'l' liiis-
'I'liniim'iii'' a
11
il Allan lint lliviill' nl' h|Vi' nvrr
ill ml!
kit
H.
to tho I'ustnily of tilt' i'i|ual iiortion of tlif lioiisf in .S|. j'aiil'.s ,ti',,t,
iiiii
I thf ilmiiifilf of tl
that thf jiaii'iits lifiiiy foifigiifis, Mniitri'al, as was his innthi'i's iiitiiitiiin,
If fill
III lint liavii
th,
If fii'funistaiiffs, liftii iliaii'ail, thf law nf tlm dfvisf that inv
irs liv lii.'i' last will, in w liicli laM' I mV
saiil snii
Alia
Staff of Mifliiyan iiiust "ovf rii ; imt that thf nf
onlf r in favi
if th
If wiff lifiiig f.\ jiartf, ami my last
my )iin|ifrty wh
lit has I
Hall Hilly I'.-niva
iffl W illtd tu him 1
thi'll this finlifil tn lu
thf fni'fiyii jiiilgiiifiit lint lifiiig foiiflusivf d'A viiiil." The will of Mrs. M, I'l'frm.d t" «a
A'ift. f. '-'4). it was foiniiftfiit to fonsiiU'r tin; niinlf in Tjnifi' ( 'aiiiula in Is-JS, ami ilivisul tin
I"
f nusf assigiif 1
1" hv thf latin
il so it was housf iiifiitioiifil to Ikt smi .\ll.i
'Mith
lifld (fsjiffially in vifW that thf ilivniff suits tn give an fi|
iM lif trifil ill a ffw wcfks' tiiiif
ll-f tn llis .sisttls HildU
il sn ( 'iitlii riiif, aiul llariift, ami tnliis liintlitr.liilm
sfttlf till' nifiits of thf fasi'i, that tlif inotlifr Afttr thf tcstatm'
liavini; vnluntarily givfii up thf fustmly of the 'A'2. Allan iifwr t
■alh,
.1. flfftfil tu t;iki
Imt In.'
L'hili
till
fatl
sh
ImlV 111
jirfsfiit f.'U'ts, liavf it I'f-ilfli', "I'fil to Ikt. ///
Kiiiiii II. (! 1". I!. •J4,'). ( '. I,. ( h.in.-! .- A. Wilson
•J. I'liiiiVinu ihi'l r ■no/of.
Ill not, umk'i' the nnt ilividfil tlif prnpfity in St. I'aiil ^tn•l't, l>ul
th
iiitraiv tif.'itfil it as his nwii, am
i:irl
I it 1
IS mtfi'fst was .-nM iiihIii'I
tlj
g ninrtgayfi
ilgiiifiit to thf mortgauffs, w liii siilis.'iiiiiii
il"
ilitaim
a I'flfasf fidiii thf hi'ntlKT ami >i?ti.'n
Mrs. M.'s will, of tlifir iiittic'^t. ;m^
I iiiil;;liiflit nf ilistrilnitiuii in
A fni'fign l.iw authorizing the (lisfhnrge of an ( 'aiiacla. It was prnvfil hy two ailvuciitts in
iiisnlvfiit ilflitor must liu ilii'fftly piovfil, ami Mnntrr.il, that liy thf law nl' I.hWiI' i ;iii;iil:i tl
11 tn ail aiiplifatinii fur thf will nf .Mrs. .M. vt'stfil an fipial iiitii'cst in tliiluiJ
'las alliiWfil ill AU.'in anil his lirntlifrs ami sistiis n.inii'ii :
thf fiiurt w ill lint listf
.li.sfh
iii'gf lit sufli )ifi'son attfr
hf 1
juilgiiifiit to go liy ilf fault, ami i.s in f.\ffiitinii. ; Hfhl, that thf fniulitinii in tlif i'nili,ili't.'^|i('.tini
Jir
Jfiiif.^
r
0-
:U()
Till' juilgf's private seal is not cviiloiiee of ^lie
profefiliiigs of a fnrfign eimit of justiff. .V. ('.
/!>. •.'7--'.
If a forei'^n judgment against two defendanta bo
th
tlr
iipi
f pl'npfl'ty 11
Mniitifal must he
th
I'pper ( 'anada as n'ganltil it.* ill'
'ami 111 ipit'itinii
\l,U-lll,Hlll\.M
III, !'.> O. 15. VM). Sfu M.irih.ii'il'l \: M
\flonell, -IK. & A. ;U1.
8everalinitstfrnis,tliefoui'tlierewillliolditgood The crown in 17(18 graiitfd land ti
as acoi in
ling to the law of the foreign eouiitry Hav, and three ntlifi'.s. In KSUO K lii'i;iim.':i
until the oontrarv be .shewn ; and the exfuutor in Montreal, by which, ac
tu tl
If law
FnUKKJN LAW AND rol^KKiNKK.
i:>k;
Allan sliiill niily iv,
s liufl Willl'il tiillllll ui|
,.,„lifil tn I'f mill
[Mrs. M. i-rlVnvil t"
is-JS, uikI ili-vi-i.
11 Allan, ■•witlii'"«'.'i|
ti. Ills .-isU'T'S illl'll,
;atnhislirotlicr.l"lra.
L| it !i« lii« I'""' •""'
„|' tli>-ir iiitiiv-t. alli
,1 sisti rt* ";i'i"^^''
I ,,,.r t'liiiiV'li' hIii' lii'iwutif rivilly ili'inl im li'iiuril-
,1 licr iirii|i»''t.Vi '""' "'"■ iiltiTwiiiiU iliiil tlifii'
' KW: lli'l'l". tl'"t "!'>' '">'' ilti>ll,V li.v niir law
*il.*tiii'i' '*l'ar>' I'V l>t'»(iming a nun. .Stmut v.
';;,„/,.., •.•<».,•. it..Vi:i.
IK'lil. tliat tiif pluiiitill', will! liml u ili|il<iinii
(m |_,,«,r rmmila, was intitliil tcijnintihi' tlu'
111 ill l"'"'^''*"''"" '" ''"' "I'l"'' I'l"^ i'lic Klllijirt
till If.
,„U,vlncll law alliTlilii,' tlu' |.|.il,,s|.,ii
P,,v. /,;„/„«,•.'•.> <Ml. 177.
|h,iiii;uiiii,u'<' I'liiitnu't lAciiitril in l,(i\ni( 'ana-
I di,, iiiti'ii'li'il witV, ill I'ciii-iiilriMtiiiii lit I'cit.iii,
'(i.i,ilis iii.iili' tlirl'rin Inr liir mi iiai.iti' Ih'IhIIi,
'' I tiF ri'iii'iiiiii' iiiT iluWff ill till' I imU 'if Inr
iiitvivU liiisl'an'l, citlicr " ■ •'v^,,„l((•.'/, /injix, nr
„,/,i(m/," nil nii'iitiiiii ln'in,' iiiiidi' nf lainls in
I'.iier Ciiliiila ; lli'M, attinniliL; tlir jinlyiiii'iit
„( till' Ciiiiiniiin I'li'.iM, tliat tliiM ilnl imt inc-
■liiilf liiT li'iini claiiniiij,' ilnwcr mit nl' l.iinU in
'I'liKTCiUiiiila lii'lil I'.V liiT liiiNliainl ihuiiij,' tlif
ii.viTtui'i'; ami tliut, imtw itlist:iiiilinn tlir fmi-
twtivlmli wa' I'litcrcil into wmilil timii a lir.it
,|ijr.i. Mil all till' iin>|nTtv wliirli tlii' liiisli.iinl
m'lt tlir tiiiif iif tlif riiiitiai't, 111' M liirh iiii>.'lit
UaiunviinlH ari|uii'i'il liy liini. N'iiiiKnnuliiii't,
I .liins. .Iiniii'-"'!' V. Fill" r, "J I'',. iV A, '.' I'J ; /-V.vAi /•
iV.iNi;--""!, !•-'('. I'. (!01.
A lull liavint; I'LU'n liluit against tnistfi-n iiinl
ntiiitma, i'<-'»>ili'iM at Muntrfal. fur an ariniiiit
ij tlif c»t:iti' lit till' tt'statiir, wliii at tlio tiliii' nt
builrttliiiniil tiirminieyi'ar.siifi'x iiiusly, liail lit'i'ii
lUiicikil tliL'ii.', till' tiiiMtfiix, iVc, altliiiiifili nut
i,|,|U.il til ilii .so, liail iiiiiicurcil til anil aiiswiTuil,
tk hill, ouliiiiittiiig til aiTiiiint, i.\:i'., in sin-li
Miner as tliuciiurt .slnnilil ilii-i'ct. .M'tciwanls,
111,1 liil'iiru any uviili'iifc liail Ik'imi t.iki'ii, tlii'y
iliioiifivil tliat tluTu wart a \i'i-y iiiiinntant ilil-
ItMia'iUs til till' rcsiiiiiiKiliility iiu'iiii-i:il liy tlinii
jiiunliu" til till.' laws lit' rpin'riii' i.uwi'iM 'aiiaila,
Imt wlikii at tliu tiiiii! nt' tiling tlii'ii' iiiiswiT
tlidwdv not awari' dill exist : Mi'M, tli it iiinlur
tlKiiri'iiliistaiKi's, tlii'y miglit tn lie allnweil tn
lilt ;i siiiiiili'iiii'iital iinswor, fur tlio iiiir]H)su of
l.'kiii« the iiL'i'fS.sary farts npnii the iileailings ;
u\ tliiit tlie laet that such \ieniiis,siiiii might
tuUt tliu jiarties tn set tip a ilefeiiee (if want nf
jinj4ii.tiiiu ill the enurts nf this proviiiee, was
Diiiilijidiiiu iiyaiiist, Imt rather a reasmi tnr this
[(nuisjimi. Tiirrttiifc v. Cruul-K, I K. it A. '_'.'{().
TrisjiiMs nr til ivcr will lie here fnr tiinlier ent
in till iiniviin.'L' nf <i>ueliee (the ileelaratinii imt
itegili;,' liny trL'spaHs tn the realty,) althniigh it
mv lit' ii«e»sary in such aetimi tn try the title
til the lain 1 nil which it was cut. Mil.un n il til.
t, A>i«, :ii; i^». 15. ao7.
By an ayreuiiieiit entered intn lietweeii the
tSKiitms iif lui estate in Lnwer (.'anadii, mid the
ttsi'kuy legatees, the fnriner agreed tn settle
aiiiirlieiiliir lugiifV, and indeniiiify the residuary
kjjiitas Irmii it. Accnrding tn the laws nf that
iMiiiitry interest is nut rucnveralile upnii ii legacy
iiitiUuit liiimght therefnr, withnut an express
fMiiise ; anil tile legatee referred to liaving sued
;kc fur the legacy, alleging an express prnniise
klKitliexeeutiirs and residuary legatees tn jiay
Will interest, in which action the execntnrs
ilrtiicil siuli in'imiise, and got a verdict, hut the
ttM'luiiry legatees allowed judgnieut hy default,
»1 aiterwarils tiled a bill in tliis court to coni-
jiel the executors to indemnify tlieni against the
mility they liiul incurred. The court, under
tliecireunutaiiceii, dismUsed the bill with costs.
I'riiiiltn V. Ti'irniiti, It ( hy. .'ijS ; iilliinied mi ap-
peal, HChy. •.'•-•0.
Hy an ante. nuptial Mettlciiieiit made in l.nwrr
ranadaiii IS.'I.'I, arinrdiiig tn the la«>tli<'ie in
force, it was agreed between the parties t" the
prnpiined iii.irriage that im I'linimiiiiinii of pro-
perty lietwei'ii tlii'ln shniild evinl, but that eaeli
sliiiilM linld iind I'lilitinne tnenjny w hat eiieh then
had, I II shniilil thei't'aftir ueipiire. In I His eertaiii
Uiinili and chattels nf the IlilMbiind were "nld lit
.■•hi'iill N .sale, nil I'M'i'iitinii against the hiisbaiid,
and having been bmiuht in by a third persnii,
were by a deed of diiiiatinii enliMyril tn the wifo
Inr her separate Use. The p.irties having n*-
iiinved tn Tpper ( 'aiiada, brnught with them
these gnnds, W null Were seized liuiler i \ei lit i'lllH
issued nil jlldgnielits nbtaillid against tile hus-
band : Held, til it the marriage settlellieilt and
deed nf ilnnatinll plnp.l ly Vested the gnnilM
therein ineiiliniied 111 the wile, and that they
Were lint liable tn seizure fnr her llllsband'^ debts.
H;llo,i,l V. Minill, II Chy. I.'C).
.\ bill was lileil ill this eiiiirt bir the piiiposu
nf adiniinsteriiig an estate in the lilnviin e of
(.•llibee, which had been assigned by im iiisol-
VI lit debtnr tn trustees fnr the lieliellt nf credi-
tors. All the parties tn the suit, ntlier than tlio
debtnr, W lln resided in (^tiiebee, were resident ill
(•iitarin, it being a part nf the agreement that
the debtor shniild act as a nialiager bir the trus-
tees, and that all niniieys leeeived by him nn
aecniint ni the estate were tn be ilepnsited ill a
bank in •>iit,irin Ui the credit nf the triisteeu.
\ deiiinirer was tiled nn the gnmnd nf want of
juiisdictinii. The cniirt iivei luleil the demurrer
with (lists, gi\ iiig tn the definilaiits peiiiiissinii
tn answer, mi their uiidei'taking tn aHm'd the
]ilaiiitil1 facilities Inr gning tn a heaiili:.; at the.
then apprnaehing sittings. (Iinnl \. J:il'l;i, 'Jl
( 'hy. 4.->, (id, iinte.
III. -M I.SCKI.I.ANKdl s Casks.
In caseK. where if niniiey belniiged tn an infant
residing in l'|i|iei' ( 'aiiada, the eniirtwniild in-
vest it fnr his belielit, the enlirt will, where the
infant is resident in a furcign cniiiitiy, direct an
, investineiit bir liis beiietit in the securities of
such country. Smihuni v. SiiiiIku-h, 1 1 ( hy. ,S.">'J.
(Ml the deterininatiiin of the civil war in the
I'liited .Stati'S the gnveriinicnt at \\'asliiiigtnii
became entitled tn the pinperty heretnlme be-
Imigiiig totheCmifederate gov crnn nt. '/'/" I'lii-
l.il'.Shlttsi,/ Xlil-lll Alllil'icil V. linlfil, l.'it'hy. ISS.
During the war, I'nited .States pnstage stainjis
tn the ainiiiint nf SlOj-'itHt were taken liyaCnii-
federatc ship fmiii a I'liitcd States vessel. There
was no cnndeniiiatinn in a prize cnurt, imr any
transfer nf the stanijis tn any persnii by tliet'nii-
fcderatc gnveriiineiit. Alter the war was nver,
these stamps being in pnsscssion nf an nlHcer nf
' the (.'nnfederatc ship, were snld by him tliiniigh
a brnker tn the defendant in Liverpnnl at a largo
disciiunt. The defendant alleged that he had
bmight without iintice of any • itirniity in the
title; but the court being satislied that he
bought with knowledge of the facts, or with a
strong suspicion of them, and designedly avoided
enipiiry urdered the stamps to be delivere 1 up
I to the United States government. /'<.
j By acts of the legislature of Canada and the
i state of New York respectively, a compa;iy waa
d:'\
I ' f
1.14 r
FOEB^EITirjlE.
incorjifiratoil in citlicr cmintrv f"v tlic pui'iHise '
of CMiifitriictiiig a siisiieiision liriilgc across the
river Niagara, fur raihoail and otliur jmrjinhios,
with L'oiiiipul.sciry jxiwurs as to the taking fif
lauds, &L'., and having tlio riglit to inijiosc tiills j
fur thu user (if the liridge. 'i'he two eoinjianies '
till inc(ir|pnrated joined in a lease of the ni^ier oi'
raihvay Ihior of tlie liridge for the term of their
eiiarters to a railway eonipany, to lie for theii'
exehisive use, and tlie use of such other railway
ooinpanies as the lessees might arrange with : — i
Held, tiiat sueh assignment was ultra vires and i
Void. Al/nriiii/-<,'tiii i-iil v. y'liiiiarn /■'nl/.i lulcr-
uiithiiiiil liriihji- Co., •_'() (.'hy. 4'.)().
T
K.V-
JI.
Ill
2. Of LerrxfiH—Sec Lanm.ui;:, \>;,
ANT.
3. Of AliiiiM—Si't; Ai.iKN.
4. Fur Trcd.'o !\—Si:i- Attainhkh-Ix, i ,
.srrioN. '
■"). I'liihi- ]\'il(i~S,<- Wii.i.,
Ok (iooijs — Sic I'mvkm i:.
Ok Stock — .SV" Coupoiiaiions,
I'laintilT on the l]Oth
II .lainiarv. JSlli;, a-M-,!
under seal with <lefenilaiits to .-,lH t.i tlionr ..rr.
'J'he Krie and Niagara I'ailway Company liad, tain land for SoUOO ; .'^•JodU to he iiaiij (jn |,t i
liy statute, authority to arrange for the jiassagc! ' April, I8()(!, and sl'oOO on tlie 1st .\lav Isd;
over sueh bridge from ( 'anada into the I'nited with interest, and to eonvev on tiies
States; hut it was alleged that the lessees refused nients lieing made. Defendarts eiiveiiaiitiiVt, j
them iierndssion to eross the liridge. 'I'liereuiiou pa^', ami that if they niaile default, "thu a"iv
an information liy the attorney-general of On- meiit should he void and of no ett'ei.t, v.\v\ Hi
tario, at the relation of the Krie and Niagara ( 'o., moin ys jiaid thereuuder up to the time nl mi li I
an<l a hill hy that eompany, was tiled against default slmidd he forfeited to the plaintilf;" aiul I
the two hriilge roin]ianii\s and their lessees, com- ■^'■■'■* ' '' > ■• ■■ • -
jilaining of sueh refusal ; and praying a <leelara-
tion, 1. 'L'hat the lease of the liridge was ultra
vires; '1. 'Jliat the Krie and Niagara ( 'ouipany
Were entitleil to the use of the liridge on paying
reasonal lie tolls; and for an iujunetion restraining possession and pai(
that time should he of the e.ssuiife of thu ti.n. |
traet. To an aetion on this euvriiaMt, allc
mm-paynient hy defendants, and tln.ii- ikl,
to eoniplete the iiurehase, defiMidants pleailuii .iii
ecp'italile grounds, that defendants went iutu
.■<I000, Imt i
the ilefeiidants fnini prexenting the I'.iie and
Niagara Company using the hridge. The evi-
dence sheweii that the llrie and Niagara Coni-
jiaiiy had not etl'ected any actual eonneetion with
the liridge, and that it was not clear they eoidd
do so without passing over lands of the lessees ;
and that hy tlieii- iharter the American liridge
Company had the jiowerof making a le.i.se to one
railway eompany exclusively. I'nder these cir-
cumstances, as the ilamage, if any, to the Krie -0th May, 1S()(). J)efeudants had tukeii
iiiti>
laviii:; iii::ili-i'nr.
fault in -A fuither payment, the phiiutiH' uvifttdl
and ke]it them out of possession, ami elccti'ij tul
ti'eat the agreement as forfeited, wliureliy the!
covenant lieeame void. At the trial it ainVaivil j
that tlii^ whole pur<'h;ise money was .'<f;ii(ll). ,ifj
which .>5lO()() was paid dox\n. .-ui'il .'ddOo u,,.-, „„ j
the 7t!i Ajiril, ISliti, Mlieii, hy an I'mlMrsuiiiiiitJ
uudir seal <iii the agreement," the iilaintilf tx-
tended the time for payment of the halaiiuc to|
and Niagara Company was only iii(is[ieetive, and
they coidd not he saiil to have sustained any
actual damage hy the refusal of the defendants to
recogni/e their right t i usi; the liridge. the court
at the hearing dismissed their hill as against all
tile ilefendauts, and also dismissed the informa-
tion as against the American liridge Comiiany
with costs ; declared the lease of the liridge, a.s
reganleil the Canadian Hridge Company, void,
and restrained them from further acting there-
under. And, .St'udile, that even if the luie and
,sion under a previous lease in .May, iMi.'i, -mAX
exiK'iidcd ahont S-IOOO horiug ioroi'l, ami lu'l aj
steam engine on the premises. They \w\\' ii'it
interfered with until ahoiit the i"tii ef .\!:iy,
when they were ahout to move this eii:iiiv,|
wliich the plaintiff refu.sed to allow, sayini;- tli:it]
they h:id forfeited the hand, having "faikil t*
nuvke their payments, and that the imipirty nasi
his, and they were trespassers. He ! :'iiii.!itl
several men with l;im. «ho thrcatciicililefuiiilaiitsl
with violence if they atti-mpted tou'ess tlio fiMnel
Niagara Company had estalilished a e<iniplete title into the pi'enuscs, ami he nailed up tlio onLiinej
house, refusing to let defendants enter it. Tlie|
plaintitl' gave evidence tending to shew th;!t liisi
ohject in this was to ohtain payuient. Tiiu jiiryj
having fouml for defendants upon the jilfii : -I
Held, 1. That under the agreement duldulaiiti
Were not entitled to rescind on fnrfeitinv nf the
numeys paid, hut that the option was with tliei
Jilaintill; •_'. That there was evidence tn g" t»
the jury that the plaiutiti' had elrctcil tn fortVife
the agreement as .alleged ; and the vi nlict v;i8|
upheld ; .'5. That the endorsement extenilinL,'tli^
time for payment did not do .-iw.iv with thu inn-j
vision for forfeiture, lint iueoriiorateil theu.xtuiH
lied time in the agreement as if iirigin;illy tliiw
Mairii.-' V. Siititli 1 1 III., 17 C. 1'. 4lil.
to relief a.s against the Canadian Bridge C<ini-
pany, still as this court had no authority to
interfere with the American Ihidge Comiiany,
and coidd oidy have compelled the other <lefen-
dants t<i permit the ears of the Krie and Niagara
Company to cross as far as the Can.idian liridge
Company's charter extended, i.e., to the centre
(if the hriilge, i nd was thus umdile to allord any
t'U'eetnal assistance, the court on thi.s ground
also would have refused to interfere. //*.
Where a roliliery hail been committed in a
foreign country, hut no trial had taken iilaee,
and the numey stolen had lieen invested in the
jiurchase of property here ; the court restrained
the .selling or ineumi ering thereof. Tin Mer-
Ci'iiiii/'i' LVjiri .■<.■< Co. V. Murtiin, 15 Chy. 274.
FORFEITUKE.
1. (If E.states.
1. (>r' Dour r —Sec Dower.
Under an agreement with the plaintilf, ihiM
18th Septemher, 1874, defeud.tiit agruol t" pur
chase certain lauds for .S(i,r)0(), sMm to hu lonl :"
cash, 81000 and interest oi Uie 1st May, l.sT'i.iHi
two further instalments of Sodd (.uh en thu Isj
May, 187;"), and 187(>, respectively, .•imMuiuiMaull
to assume a mortgage on the jiroperly nf .•<4.IKK)J
The defendant was to recoup the phiintitfi"i«'i3J
L.\N"li!.ni;ii ANIi Tkn-
\i.ir.N.
"'■ Attain ni;i;-l.N,jii.
,;■ Wll.l..
'.VKNlr,.
lUI'iillAiluNs,
.hiiinary. ISliil, a;iiTOl
ts til ntU til tlii'lii ar-
.")IIU to 111-' liaiil nil 1st I
(111 till.- I.St Miiy, ISiii;,
■oiivcy (lu tliusu jKiv-
fciiiUii'ts ciiwiiaut'.il t'l j
i\v ilffatilt, "the a;;vw-
il ot' 11(1 utlVi't, aiul ,11 1
\\\i to tli(,' tiiiic 111 M'.ih
■il to tliu jilaiiitill' :" ainl]
till.' (.•.sscmr (if till.' lull-
1 tills (-'iivi'iiaut, alK'j.'iiy
.ants, ami tlii.ii' iK-^latl
.', iK't'i'iidaiits iik'adiil Ml I
; lU'fiiulaiits wi'iit inti>|
00, Imt liaviii:; iiii'ilu lii.-
.'lit, till-' iitaiiitill I'vidi/'l]
lfi^^t's^illIl, anil t'lui-'tcil to
fdi'ti'iti'il, wlu'i'i'liy the I
At till' trial it ainirui'i'ill
se nnnuy was sCddll,
louii, ami SlUOd III'.!'; I'llj
Ir'Ii, liy ail (.'iiiliirsi.iiii'iiti
I'liit'iit, the plailitilV i.x-
yiiR'iit of tli(.' lialaiK'i.' ti)|
iidant.^ had takrii l'ii>>i>
k-aso ill May, iMia. ai:il|
Kiriug lor oil, ami Iwil a|
't'llUM-'S. 'i'lll'V Wl'Vr ll'i:
iliimt tht' 'Jritii III .Miy,l
to move this oiiiiiiii-,!
d to allow, sayiiK.' tli;',tj
land, haviiiL.' faik'l to.
id that thcliriiliii'ty«:isi
-' • lit
IMI"
FRAUD A^D MISREPRESENTATION.
1. -).-)()
i:i.-<sers.
He
iiijitl
ll;othr(-'atL'iiL'iliU'feiiil;i:it»i
llllit(.d tiul'nss tllc fi.'l!i-'i
interest he should pay on i,'iib mortgage up to the
It ,M;>V. 187"), aim was to have a deed on i)ay-
.,^.,llllf"thl' moneys and mortgage, iviid imsaession
,,11 pavmt'iit of the instalmont on 1st ^Iay, 1S7.">.
The iiiTeeiiunt then jirovided for time lieing of
tliiHxsciic'L' of the eoiitract; and that, unless said
nwiii'i't' wt'ie imnctiially made, the agreement
llii.iiM lit-' null and void, and tiie jihiintill' should
|,p:it lilierty to resell the land. The defendant
jijviii'' niaile default in ]iaynieiit of the .SlitHW on
tilt 1st May, 187">, the plaiiitill' attemjited, with-
init ii,itice to defendant, to resell the jiroperty
1)V auitiiiii '• 1'"'' having failed to do so, he also,
liter the 1st May, m.'ido arrangements with the
tenant in possession for an inereased rent, pay- |
jlilf iii,;;it!ily, instead of yearly as hefore. On
tit ISthdf the same month he sued the defeii- i
ilintiin the agreement for the instalment due : — \
Hflil. (lalt, •'•, dissenting, that neither the
otfcriiii; the property for sale, without any sale
liciii" etfected, nor the new arrangements made
vithtlie tenant, amounted to an election hy the
phiiitilftii put an end to the agreement, so as to
fonii a ile'feuee to the action. SlrConl v. Harper, I
MC. 1'. 91). '
!( the sherifl's vendee verbally .agree to ac-
Mit iiavment of the redemption inoiiL'y for land
(.Jil fill' ta.xes personally, at a distaiiee from the
couiitv tdwn, in lieu of it.-s being made to the
treasurer for him, and the owner aets on this
jiTeement, the other eannot afterwaids, to the
oniir'siu'cjudiee, re(|iiire the money to he paid
kliim t(i the treasurer, refuse to rut'cive it hit i-
((•Ifwlieii it is too late to pay the treasurer, and
insist 1,111 iiuliling the laml as forfeited. Where
sntli an aureeiiieiit was pi'oved by a eredible
litiiess, hut there was eontradietury evidenee
»s tiMvhetlier what took plaee amounted to an
MTeeiiKiit, the eonrt holding that the presunip-
tiun ill case of doubt must lie in favour of fair
ilcalin,' and not of forfeiture, gave the owner
leliei. Ciiiiwrou v. lUiriihtu-l, 1-1 t'hy, (iljl.
FOltdKRY.
See Cl!I..lINAl, L.VW.
dead before the validity of the deed w,as im-
peaehed in any way. The court, under the
eirenmstanees, refused the relief pi';>ye(l, and
dismissed the liill with costs. Flrh v. Mr-
Mkhad, 5 C'liy. ()4().
Iiiel
|lir nailed up the eiiLiiiii
.hiiilants enter it.
|leuihn[
;ain payment.
Iiihiuts upon
the
lie ("li
tion wi'
Wltll
til
was cvnleiiee m
itV had eleeteil to I.",' itj
il
iini
th the plaintill'. ihit'"
lefcndant agreeil fi l|iii
,.-,()(), S,MH)t.i he p'l'l'
Uu'lstMay.INi''.
lit .-i'lOO eae
FORMA T. 'I'KIUS.
Set I'viPKi:.
FORMER ACQUrn'AL.
.SVc Citi.MiNAL Law.
Held, that the acipiittalof a locomotive driver
on a train upon a charge of manslaughter for the
death of a party, on aceountof whose death the
action for damages was brought by his adminis-
tratrix, did not constitute any answer to the
action. Jliiiii v. 'J'IkCi-iukI Trmd: 11. W. ('u,,
11 c. r. SG. .
Inaiiiiotiiin by the last endorsee against the
,. ^^^- ksteiiiliii'seriif a promissory note, it is i.o defence
to shew that '"^^B ty the names of the i.rior eiido-'si '^ acj forged.
Iiejlir^^^ £„,,„.,„„/,,,„/_ y ilV.s?/r-//, t) ti. S. . ■
ai'-rceiiieiit ileiVnilaiits^^M The Bank of B. N. A. i.i P]ngiai.d received
eimfon fiirfeitmv lit di^^H money there tii be iiaui I'litted to A. in Upper
t'anaila, ami sent a lett- ' . -ledit by [lost to A.
[ ti'teaive the money at a 'rai^'i of the bank in
Tiinmtd. The letter was c.kei. out of the post
the veiiliit ^>'3^^H "fi'e in Canada, {A. ha> ii'^ in the meantime
irsemciit exteiiiliii- liiM^H fcliainl A.'aniinic forged . u t.ic letter of credit,
It do aw, IV with the 1'<''-^^H wil the mmiey received hy i)me person unknown:
the extia^^B -Hdil, that \.'s executri': was entitled to re-
lit as it .'iiginally tluio.^^B civer the money from the branch at Toronto, as
IV ('. V. 41'i. j^H ""'"ty li^il ami received to A.'s use. (lixKhnj it
\ ''-v. Hifiin; (I (.). ,S. oOo.
A person ag.iinst whom an action of ejectment
»5s Iinmght I'l'ed a bill to restrain the ai'tion,
^^i sllfpngiiaagiouiid, that the deed under .vhicb
I'l (111 th.' '^H^H '''M'l''n(tiff ill the ejectment claimed was a for- ]
ctivelv •uiilik'ie"'l'"'V^H f)- ''''"^ 'Iced was dated about fifty yer."a i
the properly iif s4.inK) ^Jg Wurethe liill was tiled, and all he persons .,.,o |
I'ouptlieplaiiititf I'" ''')Bff ™ witutsseil the deed, four in number, were)
FORMER RECOVERY.
I. P.V dlDilMKNT.
1. Ginirdllji — .SVc .Ji'iMniF.Nr.
2. As a JJifi'iici' to Ai-liiiii--i on Bill.< or
yotc.i — See lill.LS (IF ExiHANliF.
AND PltO.MI.SSllUV XoTKS.
.'?. /v Eject nil-. i/f — S:-e IvrFCTMKNT.
F()i:\vAi;iii:i;.
Sea (.'Al!l;ri;i;s.
FR.-iUD AND MI.SRErRE.^EXTATI(»\.
I. In Sai.f. oh (.'onvkvan( i; of Lands.
1. Iiiipnirii/riice, ]'h>\.
2. Undue Influence.
(a) Piirent nml Chihl, \^^y^.
(b) Other llelitfinn^, loSj.
(c) Invbrinte-t, X'^'u.
(u) Other rase.i, 1,"),")!).
3. Friutil w ^li-irejirr.si iiliifion (i-i n
(Iroioi"' of Action or Defence at
Lan; LKil.
4. /'/i.,. " ^[i.1repre.■<eulat'lOll a-^ a
ilrotinil for /ielie,"in Ki/idti/, 15G(>.
5. Settinij a-i'n/i' Frtnnlulent Conrei/ances
a.iiii'aln''t <'reilitor< or l*nrclia>,er>i
-Sei FhaI'I>1'LF:NT t'ONVKVANt'F.S.
IL Action f.)k Fai.sk REi'UF.sF.NTArioN.
i. <->f S( ivencij^ l.")70.
"J. Of Anthoriti/ or Aijenci/, 1,")71.
3. A'ptiuxt Jiitnl: Direetori for False
' if'jiort.^, 1572.
-i. Plea.-: of Fraud and Misnpresenta-
llvn, I'u'.i.
/ , Other Cases, lo~4- '
ir).-)!
FRAUD AND MISREPRESENTATION.
1.m2
III.
CoMi'ROMisK OK Sktti.ement liY jKirt of the projjorty, sulvjuL't t(
ri'iidorud tlie tniiisactiin
Fkm'u, l.">7!t.
IV. MiscKi.i.ASKor.s Casks, 1,'iSI.
V. Uv Ari'DHNKY OH Sdi.icrroR— .?(•(' At-
ToliNl'.Y AM) Sol.Icn'dU.
\l. FKAri) AND ll.l.l'.IIAl.t'oNSniEHATION" IN
Jiu.i.s OK Notes— <SVc Bii.i.s ov E.\-
t'UANCE AND PkoMISSOKV >i'oTES.
V[I. Fkati) [N I'koclkinc Paten is — Sir
I'kown Lands.
VIII. I'" i;m' or lent Assignment— .SVc liASK-
Kii'Tcv and Insoi.vencv — ('Hnii-
NAL IjXW — KKArUfl.KNT (.'oN-
VEYANCES.
'"liti'insMlii,.!.
luT i.art ; iiiid it iipiiuimd tli;it sli,. \,,,s ,llit,r.,,
.iml (lull ot iiitullfut, ami had im pr..tis,i„,|. i *
other conilieti'iit adviser in tiie niatt.T. iil,,'] ,i''J
not ill some iiuiinrtaiit I'esiierts iiiiil,Mstai,!hi
nature or ett'eet of the traiisiictioii : -Kii '"
it wa.s not liiiidiiii,'
Jhiiiiihl, !•_• Thy. S-'.
All iiiiprovident
OH iivr. j/r/,,,,,,.;;;;.' ';)'■
lar-aiii for tin., salt
-.■" .'.','1' >.i;.o.i loiTin.. salt <it tin.
l)laiiititl s i.roperty, m here the liarticsiviTt. vm-
uiie(Hial as regards means, iiite!lit;i.|n.T,ui.lntin.r.
wild
IX
X. Fi
XI
XII
Xlll. By
XIV
i'KAUDlM.ENT ('oNVi;VAN(i;s .V
DULENT t'oNVEYANCES.
liapers were .Irawi, hv tlic vui,.l«.
some iiiiiiortant jarts „f tk- l,,ir.
vendors had not tlie iir..tei'ti»'i'„i
■'•■pendent a.lviee, was !i,M i,.t to
111 the veiiilors. /•■,,//„„ y. A'..
AlDl'I.ENT JlIXiMENT
DIEENT .k'DCiMENT.
-Si r Esrop-
XV.
XVI.
XVII.
xvm.
.Vs A ( iKoiNi) OK Esrori'E
I'EI..
FkAIDI lent UeMDVAI. — Srf HlSTKESS
- IIxi'.CfTION.
M.AKiiiEi) Women
AND \N"ll-K.
In Cases of Insikance
KANCE.
CoNTK.UTS AND 1 )EAI.1N0S W irH l.TNA-
TICS — Svi- Ll'NATIC.
In Cases of rKiNciPAi,
-Svi' Pkincii'ai. and
and tl
niitted
gain, and tlu^
eoiii|ieteiit in
lie liiiidin;,' on th
FuAr- !•_' Chy. ;i88.
I A widow of iineominoii vi:;ui' ,it' ii,;,,,! .^^i
■.S'"' Fkat- i strength of eharaeter, aeeiis^MMied foniiavv-u's
to manage all her .iwii » .ars, and wluVuHn,,!
' property to the value of at Ie:ist t'J.'.,(KK), iiimr.
red liabilities to the extent of fS.ooO; ami the
time of her indehtediies.s hfiiigoiie of m-uat ^
meivial <leiiressioii, sshe eouli'l imt rarsu in„iitv
to pay, and was in danger of h,siii!.r all sin- luil
hy a foreed sale. .sIr. hail two sons-in-law, m-
sons of wealth and eredit : her solicitnr, witliMiit
any eoiiiiiHinieation with tlieiii. advistil lani.
(liter her iiroperty to them on terms wlmh w„iil,l
make it W(jrtli their whi' 'o devote tlnir time
and energy to save !■ , '.„ lor tliemsflvis; >lie
some days d<,; .. aiii i adojited this i„l.
iiid jiroposei' to tlieiii to take all lur iim.
AND AcENT l>i-'''t.v, evei'it tw'. farms wi, i M-hicli slit wifhul
-VoENT.
Sw IIl'SBAND
-.sVi iNsr
after
viee. ;
Between Pautn eks -
siiir.
,S'(( Paktne,{-
.\r
Sale of J^and koh Taxes
Assessment and Taxes.
.SV(
-.sv.
Hr.v EN I i:.
Tursi,^ AND
XI.\. FiiAVD ON IIevente
X.\. In Cases of Trust — *•<'
TRlsrEES.
XXI. .Sl'EClFIC PeKFOU.MANCE of CoNTLAcr
WICEKE FkaFD ol! MiSKEI'KE MEN-
TATION HAS i!i:en ised a t Sa.k —
Si-i- Si'EciFic Pkkfokmance.
1. In Sale ok Convkvance of J^ands.
]. I iiijiror'uli'iirv.
Although the numlier of persons in this coun-
try in the jiositioii of expectant heirs and
reversioners is lint small, still the same rule
applies as in I'higlaiid ; the principle of the doc-
trine lieing that such ])ersons need to be pro-
tected against the eonseipieiiees of their own
improvidenco in dealing with designing men.
Mnni/ V. Tiilliu, (i Chy. 17(i.
Where the tomint for life was the father of
the reversioner, hut the son was not dependent
on him, and had no expectations from him, and
both were illiterate : — Held, that the father's
knowledge of a sale of the reversion by the sou
did not render such sale uuinipeiicha))lu. lli.
Where a woimiii of sixty, who had a first
charge on property for her niaiiitenaiice for life,
was iiuluued to exchange it for a life lease of procured the I'-ceds to he exec
t.' pn.v'de for the only t\>-(i iiiemhers cf lit-r
family, besi les the wives of tlii,- t'v,, . •insiiilaw,
wl«o had not already had large ,'uiiis irmu ln-i-
■ and the consideration which she ]iriiii(is(i| tutlie
! two sons-in-law, was that they slioiiM nav lut
^ liabilities and pay to herself aii'aiicmty. tlnv,
with some reluctance, accepted her [ii' .pusal,
which was duly carried out, and she lui-.i idf:
seven years without making any oiii"cti'iut.itlie
I transaction, though she was aware that thtyliailj
made considerable jirolit out of it. .-Vftir htrj
d'Nitli, some of her heirs liaviui; tiled a liill iiU'
pc.u'hiiig the transaction on thcgriiiiiKlsdiiraiiilj
aiK. trust, the bill w.is dismissed with t ists.,
1 'I'.illi.i v. A ml n- IIS, Hi Chy. (IL'4.
The plaiutill', an inth'iii man scvciity-tivt \
old, and nearly deaf, having (|iianvil(il «■
son in whose house he had for some time
conveyed by deeds, w hicli did not cc.. .n , , .^
jiower of revocation all his property a. ' ..;l, tr
wiU'th about Sii.OOO, to another son, tin ''•'ltii*3
(hint, with whom he went to live, the lilaiutlli,
receiving liack .-it the suggestion of the [h'mh
employed by the father to prepare the lUnls,
bond in S'_',(KM) jieiialty, seeuiiiig to the fathii'
niainteiiance or ■'?1'J."") a year, in the event cf hi
being unable to continue to -esiile with tht il
felidant, but v\hicli did not charge the aiin.illl
on the realty in any way. Oil a liii! 111. ' lythi
father to be relieved from the traiisactiiiii
entered into, the court, on the groiiiul M'tliiM
treme improvidence of the bargain, ain: that tl'
instruments did not, as the plaiiititi sh 'iv. lan
out his real intention, set the tiaiis.iet
but the bill having inniropeily iharj'-' 1
fcndant with liaviii'/ iraud'deiitly luaitis miimI
the iilaiiititr, and with havi>m i.v iiiidii.. iiiriiiii'4
this
\:ui
l.V):i
I'liilitiunswliiiii
Ut t(i I'll
i\ iiiiiiri
tliut sill' w.is illittrau-
mil 1111 iiriifi:ssiMii;il ,,r
II tlu- iiiattiM'. uu.l ili.l
sin'ct-; ninlfistiunl tin
iisiifti.iii : -llfM, tii.it
';r. McLttih-iii V, J/r.
ill tor till' sail i.f tliu
_• till' \iartii's«iTi' vi-ry
iiiti.'llii;fiiri.';uiilntla-r.
; ilrawu liy tin.' vuinlce.
■taut ]iarts nf tlif liar-
il iiiit the ]iriiti.\tiii:i nt
;ii1v'k\>. was liijM iiiit til
irs. Fiilinii V. A'l'iM.i,
)U vigiir lit luiiul uinl
(.'iist-ii'iK'il fiii'iiKiyy.ws
II, virs, aiiil wliu imiuil
at least t'J.'i.tHH). iui.nr-
L'lit <if t^.lHIO; ami the
lifiii,L;iiiio lit gi'uat oiiii-
oiiulil 111 it raisi.' iiinmy
I'V nf liisinii all siifluil |
lail two siiii-i-iii-law, \vy- [
it ; luTsiilicitiir, withi.ut I
til tlioni. uilviM'il liti'tn
:iii (ill tcniis wliioliwmiMl
Id' 'o lU'Viiti' tlifir time
. ',., inr tlii'msflvi's; «lie
,ui' ' ailin'tvil tliis ii.l-
ctK'ni to taUi' all lui'iii'ii-
s \vi' ;i M-liich slif wisluil
ilv t\''ii iiU'inlici's lit ln'f
(.■sot tliu t>v.. .-iiir-iiilaw,
III large sums trmii Ikt;
vliii'h slio iiriniiisiilt'ithe
that they slimilil 'ay lur
rsell' iviiaui'.iuty. 'liny,
aceepteil her yr <\<">a\,
,1 out, anil she lut-.i lifi
.kiui; aiiyoiij.-i'tiiiiitiitlie;
■ \v;is aware that llii-yliaii
tit out ot' it. At'ttr
irs haviiiir lileilaliilliiU'
tliejl'riiiliiiUiil iraiull
,.< iiraiiteil without costs.
"u'hv.TO.
■J. I'lli/ili fllfllli'llir.
(a) Piirviif mill Cli'ihl.
I jiistam a deed of gift to a iicrsoii
FRAUD AND MLSREPRKSENTATloX.
W'ntxDii V. Wiil'iiii,
i:).-)i
1,! any I
rebtii'ii
tnipliiy :
i asiile-
J/illVil
I Will
iii his
staiidiiii,'
'..intjili'iitial relation to the donor, (in this
', ' it was liv ;i father to his sou), the diuiee
' ,^, itililish by elear evideiiee that the iiatuiv
1 etlei't I't the deed were fully and truly ex-
Wil til the donor ; that he iierfeetly uiider-
!'t,«i' tlitiii ; that he was made alive, liy exjila-
' .• I, miilailviee, to the elleet and eoiisei|Uenees
; rtrtUtiiig it, and that the deed was a willing
■tuliliis li.irt, and not olitaiiied liy the exeieise
of tliat iutlueliee whieli the eonlideiitial
relitiiiiisl'il'"' *''^' '*""'^^' I'"' "' ''! ''•'* Jii'wer to
iitlierwise sueh deed of gift will lie set
l/i(.<i,» V. Ni'Of (/, 11 Cliv. 417. See, also,
j|,„v„,,*v. J/"»r.(.v, S'chy. --".tH.
Wiiiw a sou who had the entire nianageiiieiit
ijij father's luisiuess, the father lieiiig old,
j jii,lfiirvi'ai's r.iialile to attend to liiisiness, — oh-
.,:.,.,! ilVcils of v'ift from his father and mother
ISiIli-il ii^^'" p _ ,
I iJtlitii'l"'"l"-'''^y' ^^''thout tlie intervention ot any
ilviM'i', M\'\ failed to give sueh evideiiee as aliove
Mitinlit'il. tlie deeds were set aside. Mn^'iiu v.
y,,,,, lU'hy. 447.
Hit'iilaiiititl'lieiug old and inlinn, was indueed
Ikliissiiii, with whom he resided and who had
■itjt iiitliii'iiee with him, to agree in writing to
(jjvitii the ileei:iiui of two referees the terms
I (li his will, and to exeeute a will in juirsuanee
|i)ithdi':iwi"''l' A lease to the son was exeeuted
litthesaun; time. The son having failed to es-
I aUish that his father had eonnieteut, iiidoiieii-
' litnt ailvit'f ill the matter, or had entered into
tilt traiisictii 111 willingly, or without jiressure
1 iwii tbi' sua. the eoiii't" deetved the lease void,
I al tilt will reviioalile at the |ileasure of the
Iplauitilf. Dmahliuii v. Dniiitlihuii, I'iCliy. 4.S1.
A eitivevance liy a man, 84 years of^agc, of
llisiarm, whieli was almost his only means, to
with
fciiurrioil iliuighter, sulijeet to a iirovision that '''■■* ^^''"'l'-' l>i-"l'^-'i't.V
fit slimilil iimii^-'rly niaint.iin him, liut with no
pisiiiial haliility on the [.art of any one to see
til his iiriiiiteu iiiee, was held to lie a deed of
ji;. iiiil iiiily siistaiiialile liy the same evidonoe
. ■iissaiy in ei|uity to maintain a deed of
. Hi'UMHX. KiiKji/i, I.S ( 'liy. S!KS.
.\lilieilt'el, .iiade two days afterwards to the
lieli ilid iii't "■■'■i> ■" ,' '^'^il^pntiir's till, who had managed the farm for
his iiriiperty a,: -ili-- - },i'«,!iit years aliiiiir with farms of his own; the
whieli might lie necessary in the ease of a gift
from a ehild to a jiareiit. Wijcntt v. /Inhiiiiii, 14
Cliy. 'Jl!!; Ariiii/riiiHi y. Anii-ilruii'j, />•. ."rJS.
There is ordinarily no jiresuiuiition of iindiio
iiitluenee in the ease of a gift from a lather to a
son, unless it is proved that the .sou oeciiiiied at
the time, a relation of eontideiiee and inlhieiiee ;
Imt if tliat is jiroved, the gift may need for it:
sniiport the same evideiiee as a gift to any other
jH^rsou oecuiiving siieh relation. .]fr( 'omi'/l v.
MrCu.iwII, l,-|('hy. •_'().
Where a father made a deed of gift of all his
property to his son, and there was no evideiieo
of undue iutlueliee on the [lart of the son, or of
his having taken an uneonseieiitioiis advantage
of his father, and the court was satisHed that
the cleed had lieeu duly exeeuteil, the sou was
not reijuired to prove that the father in making
the deed was aware of its nature and eonse-
i|Ueiiees ; and the deed was upheld. Arm-it i-nii'j
V. Arnixtriiiiii, 14 Cliy. "ills.
.-\ widower, a shrewd, thrifty man, jiossessed
of eonsiileralile real and liersoiial estate, lieing
apjireheiisive of a suit against him for lircach ot"
proniisi:, determined t > convey his land to his
children, which he did, taking eonditional notes
for the purchase luoney. The children did not
occupy any eonlideiitial relation towards him,
and the transaction was his own suggestion,
without .-iiiy intluencc or pressure on their part.
What he ret lined was more than ample for lii.s
w.ints : Held, in a suit instituted liy the father
seven years afterw.irds, that thi' deeds could not
lie imiieaehed. I.iitmi v. Sumh r-^, 14 Cliy. .'il-l7.
A gift can only lie upheld if i learly proved ;
and evidence of lo ise, casual, and inconsisteut
admissions olVered to prove a gift liy a mother to
her son, of all the donor's means was held iu-
sutlicieut. MrCaiiinll y. MrCuinir//,, l.")('hy. '20.
Where there is no jiroof of mala tides or of aii
unfair exercise of iulluence, a gift of a tritliiijj
sum, as compared with the ilmior's ]iro|ierty,
does not stand in the same imsitioii as a gift of
jill oil 1
iisuiissei
IChy. (i-.!4.
[ui man seventy
liaviiig iiiiarrellfi'
[lad t'lirsuiue tiim
111
If the donee is a son who occupied to his father
(the donor) a relation of cnulidence and intluelice,
though a gift of the whole of his father's lueaiis,
if large, may not lie upheld withnut the cvideuoe
rc(|uircd in other cases, of due delilieration, ex-
planation, and advice, the gift of more than iv
trilling iiroportion may lie sustiinalile without
such evid !iice. //'.
another sou, ti
lent til live, the
aiiii .1111
il'Vtb
ilaiiiti^
suggestion of thf ln^nflj
• tiV prepare tlie 'hfl'.
securing til the fathirl
year, in the event nt M
ue to -esiile with tlu'
not charge the
V. (In a liiii
'from the traiiKadi"ii i
„„ thegriimid'i'theex
hareaiu, am. that tW
the plaiiititVs«.iiv.iarT
,et the trau^:Ha'^
iDrniierly ehai-j': i
ui.;'ileiitlvpriu'i--'f"l«l
uiiihi'-' 11" '"■"'■^
ii.'iiler inn fur the conveyance lioing the son s
li»"iMil I'lail to maintain the grantor and his
Irieilimiii,' the rest of their lives, without iiny
<itlier snuiity :- Held, not valid, unless shewn
Ithi
liavmj;
be execute
il. this
■'.It
A fiither having olit lined a cuiiveyancc of tlio.
interest of liis sons under a mirriage settlement
for an alleged considciMtinn w liich did not exceed
oue-lifth of the value of such interest, and which
I was never piid, tlu^ trans.ietion was set asido
liikivtlieeii mule freely and voluntarily after after the death of tlu,' settler and one of the sons,
>ltiit.'iiilcnt ami jiroper advice; -Hehl, also, i„ a suit by the devi.sees of the deceased sou.
Msiith a eiiiiveyanee, unless s:i made, was not .\lr(h:,ii,r v. /fa/i./Jr, 17 C'hy. 3S ; ,S'. <'. iuap-
llile iinml hy evidence of a verbal agrecnieiit iieal, 18 Cliy. 44li.
W,il viars hefiire, that the son shouhl work , ,, if,.,- ■ , r i i
ItltLirmaiiiliiiaiutain his father and mother, in ,., ' 'l^. 'li;f^''i'l:i"t '"'i- '"« received from the p am-
'Wilmtiiin „f the property being left to the till, his father, money to buy land, liought a
r "ill I a deed and will being essentially P^vrty s interest -n an unii;itented !"t, and took
iftft-nt ///. '"' JisHignineiit in his own name. \\ lieu the
father afterwards came to this eountrv with lii.«
^niy ase nf a gift from a parent to a child, wife and family, they ;vll settled on the lot ; the
-■i- 1» till rule which reipiires thw child, in the mother died live ye:irs afterwards, and a few
'•wiw nf evuluuce shewing imposition or undue days after her death, and w hile the plaintitl" was
"HwKf, to siippdrt the deeU by tiie evidence . in a state of nientivl (lepressidii, tlie defendant,
1)1
! I
.1 (
I
1555
FRAUD AND MISREPRESENTATION.
1,
I.,.,
with tlio .assistance of jiiKitliur son, in whom tho nmuli nmro v.aluaMo than the dtlur. TIrmi
fiitiier liail ciintidcnce, iiulucedthe wither to c(in- (if any) paid was niiieli less than tlievalii. i'"r
Buiit to defemhxnt's retaining the hit so bought. h)t eonveyed. Tlie conveyance was sit '
in consideration, among other things, of defcn-
(hint's agreeing to pay for another hit which hud
l)ecn bought, and of liis procuring a deed of lialf
tliis hit to the father, and of the other half to the
son who was acting for the father. Tliis con-
sideration was not adeijuate ; the transaction
was otherwise an iniiirovideiit one for the father ;
and there was considerable doubt wliether the
father hail under.-*tood tliebai'gain to be as stated
])y the defendant : - Held, not binding in c(|uity,
nnd that the plaintitl' was entitled to a convey-
ance on payment of the sums wiiich the defen-
dant had ])aid in imrsuancc of the alleged con-
iiillii.
tract. ,/i>/iii--iliiii V,
alHrmed on rehearing.
Jiilnistnll, 17
lOChy. i:W.
Cliy. lll.H;
(b) Olhi'i- nehtthm.^.
An nncijual division of a residuary est.ate,
agreed to by the parties interested, and sanc-
tioned by the executors, was held not to be
1)iniliiig, whore it appeared that the lady to
whom the division M'as unjust liad agreed there-
to iiont professional or other independent
advi .vith undue haste, and i.. ignorance of
the r.. . ' ' of trie largest item <if tlu' assets
of the ic otlier jiarty to the .igreemcnt
heing aw Mier-in-law, and being the only
person, e.\i • j 'le executors, mIui ajijicarcd to
have had any of her conlidcnce in matters of
business. Chirki v. J/iiirki', II C'hy. .V_'7. See,
also, Mcrntt v. S/ntn; lo C'hy. ',i'2i.
It is essential to the validity of a deed of
gift in favor of a person occupying towards the
grantor a relation of trust and I'ontidence, (in
this case a brother in favc^ur of iiis lirotliers,) that
as Iiaving been olitained liy muhu ii,iii'n.,'
although six years had elaiised bctwoi.ii tin. ,.'^^'
cution of the deed and the suit iiiuiri,i,i„ '.Y'
transaction. JiiiiOiiiiiii/ v. .V/„,-, ,/ nci'^
".'i 't I liy. m.
A man deliberately and with ic-al a.*.sistaii,.,
executed to his son-in-law a deed i,f i,js Z "'
subject to a life-estate in the L;raiitiii' iV!""' '
sidcration of the grantee's agrecTii- t.. aUi.t't'i"' '
grantor in working the place .hiriiii,' iiis lii\. ,^,'i j
to indemnity him against certain iimrt"'
There was no fraud or pretence of uiiiluf'
ciice. and tlie grantor fully uuderstd.i.j «li-,t i,. j
was doing : but (piarrels snbseciueiitlv ariw' J
the .son-in-law left the farn; , nlieivin,,,], 'ti,.!
father-in-law liled a liill to sjt asiid tln> litcil ,','^1
the ground that the conveyance inei rriTthiii,'],.'!
tioned a consideration of .•-■.',(100, and that tli>|
true consideration was not in wi-jtinLr: liati. 'tl
appeared that tile solicitor had renimiuwulL.raj
writing, and that the grantor had vuluiitanlvf
preferred to dispense witli it, the emut (Ifdiiivill
to cancel the transaction. ('(
III III/, 17 t'hy, L'vSC.
An old man whose mental facuitiLs li;i,l 'i„^,|J
somewhat impaired l>y age, being in ililiiiiiltifjl
with his sou, aiiplied for'advice to tiiu atturiu'v
of persons against whom he had rccnviivd 'J
judgment for one <lebt, .-iiid a verdict fur aimthe^
debt ; the attorney obtained from liim a vtavf
of the two delitors witliout any eiiiisiiliratinn:
and without his having any iitJier aiivi.i' M
regard to the transaction ; and tlie (nilyfviili.acJ
of what had Jiassed between tlie two was tlia
evidence of the attorney liini.sell, tik- diuij
being .lead : -Held, thattlic release could imtl
maintained in ec|uity. J.hintr v. .<y«o'/«.'/, Ij
II III' ri)ii V.
■Ill,-,-
action. /J
ll/l-.-iOII v.
Dim:'
\-i t;i
ly-
-s.
V-iUII,
A younger son who was entitled to a large
estate under the \\ill of liis father, shortly afte
coming of age, imivhaseil from a step-brother —
twenty years his senior, and who was greatly
embarrassed the eijuity of redempti<iii in fifty
acres of land, the mortgages on which he was to
pay oil' out <if the purchase money. Shortly
afterwards the purchaser left this country for
the I'niteil States, where he resided for some
years, diu'ing which time the mortgagees had
foreclosed
liled a bill impeaching tlie transaction, on the
grounds of undue inlluence on the [lart of the
vendor and excess in price. On the hearing, the
evidence failed to establish the fact of uiulue iii-
Hueiicc, and the evidence as to value being con-
tra<lictorv, the bill was dismissed with costs.
JiciiUiiii V. Diiiisiiii, l.'H'hy. 114 ; allirnied on re-
hearing, Mowat, \'. ('., diss. Jh. oiKi.
An infant entitled to real estate was brought
the grantee should show tiiat tlie grantor had (.'liy. iiX^.
comiietciit and independent advice in the trans- i . ,. i- i ■ i , , ,
■ .y-^ t A tanner died intestate, leaving twii s.ins and
two daugiiters, and consiiKralile pi'ii|iurtv, iiwi
of whicli was in the possession of oiienf tiii'siria
Tuii days after the funeral, at tile sug.'i'jtiim (
the sons, all went into town, tlie si.sto|-.s li.™
under the idea tlicy were going to tlie retri-tr
otlice to make empiiries about tlie iii»|nrtfl
instead of which tliey were taken to sou a lawvj
about the estate ; and while there, tlirimi.'li tl^
intluence and importunity of tiie suus, aiiil i
the faith of their representations, some uf wliid
_ _ were not cori'cet, and witliout full <ii' i.niTe(
The piuvliaser, having returned, information of tlie value of tlie estate, unonith
(laughters, in her husiiand's aliseiicc. aihlwitlwlj
any independent advice, executed a tiaiiskr
her interest in the c'state to (he son wlii was
possession, in consideration of his ui>tc fnral«)0|
one-tifth of the value of her sliarc, [lavalik
six years M'ithout interest. There wciv inn;
reasons why she should have iiiaile a giiuro
settlement with this son ; but tlie sottliiiie
having been <ibtaiiied as stiteil, was luM
,, . ^1 r •■ .., , i- -, ^lowat, \'. ('., not to be biinliiiir : aii'l mi
111) princnially 111 the family ot lier uncle, trom the , • ii t n ■. i ;., , ,i, , ; ,
!',,'■' ., i-i , '■ ... lieariiig the full ciuirt, consulcnui; the isi
age of eleven months until her marriage after i j. '^ ii i- i. i ,■ .-, ► ,. .„ .h
f, • . , ... 1) • i. 1 j-t ■ : between the parties to be one ot tact, ivliisiil I
attaining her majority. J'revious to her attain- 1 u j.i i ' /.-./• ,), . .mil,, '
, ^^ .,■' -^ 1 1 1 1 i • 1 f 1 I alter the decree. ( n.'ouf'V. < nrlirniK , -Hif hy.
ing twenty-one the uncle had obtained trom her
a promise to con \cy to him one of two lots of 1 Tho testator, who died in Aiiril, ISli,,
land left by her father, tho niiclo asserting that i been a captain in the army, and was icinvsinM
lie had ailvanced the money to complete the ! as a man of intelligence and Imsiiicss ca|i:u'W
purchase of both lots, .\fter her marriage tho | although addicted to habits of iiitiiiiiiiiaiifl
iiiece, feeling herself bound by this promise, con- i He had no relatives other than the iihiintills
veyed the lot selected by her uncle, whioh was the defendant, the latter -a minister nt '
heiitlKr. TIk; nii.iii.v
, tlmii tlii.'V;ilm.„itl,'^.
)-;im'L' was sft ,l,i,l^._
,)Slm1 lictwci'ii till- 1.\^..
u suit iiiUK'iic'.iing tlis
V. St' I,; II, lU'liy, m.
with l(';.'al a.-'sistau';.;
w a (IuimI irt Ills lariii,
1 tliL' uraiitur, in i'i,ii.
< agix-t'iiiL; til as>ist tilt- i
vuc thiriiii; his hlV, and j
st I'fvtaiii iiinvta^'ts.
ijtclK'i' 111 uiiilue iiitlii. I
ly iiiiiliTstiiii'l wliiitlui!
siih.st'nucutly arnM. aiiil]
fani: , \vhi.'ivii]iHii the I
:i> sjt asiiU tin.' ilwl luj
L'yaiii'c iiK'i nvLtlviiitu-
if S'J,()l»0. ami th';it the I
lit ill writiii;.' ; hut ;i>
iir hail i'ci.'iiiiiiui;nilt.li|
;rantiir hail voUmtanlyf
:ii it, tiK' I'liurt iliiliiii.'.l|
.11. ' 'it lit' t'ltii V. Siitl'
■ iital I'aiiiltifS li;iil UtiJ
\<st\ lii'iivir ill iliilii-iilticsi
r ailvicu to thu attiiriicy
iiu Uu hail ri'i'iivcivi! ;
ami a vcnliit fur iumtiiei
liiii'il I'viiui him a mas
himt any ciiiisiiUnitiin
in' any iithrv ailvin^ ij(
111 ; anil thfuiilyuviikii
L'twcL'n thu two was thj
i-nt-y himsi.-ll, tlio L-liiiiJ
,itt"lio irloasf omlil ii"t 1
/)( tftir V. Sjiitt'liii'j.
iti'. h'avini,' twn sons aii
iiUvahlo V''"!"-'''')'' ""*
(.■ssiiiiint line of tlii's
oral, at tho siig-'wliii:!
town, till' sisters In".
Vf oiiiiii.' to the ri'gisttj
;,.> ahout tho iirojitr
ii>/ taken to see a hwytl
while thciv, thrmyh tW
nitv of the sous, aii.l
H'li'tations, soimMilwl!
vithoiit full or ii'Vits
if the estate, one I'l tbl
FRAUD AND ^[ISREPRKSEXTATION.
Ill's ah;
kte
Ltioli 1
ee, amlwitimH
euteil a traiisiir
to the sou wli'iwib
,f his note fi'V :il"ia
if her
■est.
;|iare,
iiava
'I'lieri' Were vM
A have lua
,le a
son :
insi
1)0 olio
liut tlie s.ttlema
st iteil, was liel
hiniliuL' •• ami -i
ileriu.u the
of fact. reliiM
llioil in
•JOI'h;
Ai.ril, IN
111 was rein
,1 husiiH'ss ay
haliits
i,f intemiK i;i>i^
1,1.11
rhiinli "f I'-nglaiul - - hoin^' tlio hrutlior of hi.s
f. who had ilie'il in tho iirovious aiituinn.
' _-,ftcr lier clocoaso tho to.stator, wlio was
!, J fesicteiit ill l^miihiii, sent for tho ilefonil-
t wlio I'l'-"*''''"'' "*' Hi'"i'kvillo, til 0(11110 to liiin ;
■ lirih'i' t" iis^'ist liiiii with lii.s atVairs. This the \
jetVnil.ii't iliil, iiK'l. a'li'ing.st other tliiiioH, oon- i
u I ^]^^ solieitov of tho tostator as to tho stato
",|,1 eiiiiihtion of liis all'airs ; iiiul ;i powor of at-
iinitVwaspre|iaroil hy tho .solioitor ami oxoontoil
Utile' testator antliori/.iiio tho ilofomlaiit to soil
i,lilis|"'so of siimlry artiolos of furiiituro ami
iiilur etl'ects, wliioh ho iliil. Two ilay,s after
I'lij, testator inado his will, hotiuoathing to tho
jckiiil:iiit all his i>ictnros, jowollory, triiikots,
,,J wearing aiiiiarid ; ami to hi.s lirothor, (!. \V,,
fin.„f the I'laintitls, all iii.s .silvor-plato hoariiig
liifaniiiv eivst, <H' tho rosiiliio of his o.stato,
till anil personal, ho gave ono-half to (i. VV.
ii.,itlie otiier iialf ho jravo to tho otlior plaiutitl's
* nieces ; ami apliointoil dofomlaiit o.xooutor.
\,.xt ilav tlio testator oxooutotl a ti-aiislVr of a
mliiV lit iiisuranoo on his lifo to tho dofoinlant ;
' lilt iiistrnet ions for this instrniiiont, a.-i woll as
i iorthe will, having liooii givon l>y tho testator
.,i.p,„,i;illy to his solioitor, who testiliod as to the
' ititatiir's tiiorough oonipetenoy to exoouto hotli.
I 111., ilefeiiiliiut was jii'osont with the testator
I thfii instructions for the transl'or were given to
i tl!i<iilieitor, and so i-einainoil until the iiistrn-
niiiit was exeeiitoil. The test.ator died within
sis muntlis afterwards, and the iiisnr.uiee nionoy
Ltnaiil to the det\:iiilant. Tho solioitor in his
trtltni-'e .stated that ho was not infornu'il as to
I tk "hjeet of the transfer, wliieh was alisolnto in
fiirai ami for a uoiiiiiial eonsidoration, Init that
lieiiiiilerstooii it was l>y way of seeiirity for some
UlvMur or ilolit. Tlie ilofomlant did imt prove
llkwill. or olitain proliate thereof until Juno,
|K4, ami on tlio iL'th of Oetolier of that year
I tlqilaintill's dhtainod an adiiiiiiistration order,
limlsiiilillit ill proeeediiig tiierouiider to coiiipel
I tilt ilfleiiilaut to refuml tlio insuranee iiiouey,
laitiiti;riiuuil tiiat the transfer of the pidioy had
iWii uiitaiiied 1 y fraiul or umluo intlnoiieo, or
j ifi> iiitemleil merely as in aid of the will or as a
JMrity; Imt the court (reversing the dooision
loillkmasterl" Held, that tho oironiiistaiioes of
I lit tase were not such as to lead to tho pro-
luiiilitiiin that tho defendant had lieeii guilty of
Iiiiyiraiil or undue iiitluonee in olitaining siieli
|l.<sigiiiiieiit, and tiiat he was Hot hound to give
liviiltuee that tlie testator voluntarily and do-
llititntely perforiiied the act, knowing its nature
luiiltlleet. //' Wlilli, KiMm V. 7'ititi, 'i-J (;liy.
15.") 8
than the pi
lior
litter— a tu
litltfs
uistor lit '
(c) liiihrittti't.
Til'.' mere fact of a person oxeouting while iii-
llHicUeil, will not, as a rule, sutliee to set such
|Wiu,iile, unless nmlue advantage was taken.
Euwer, where a person sixty- two years of ago,
luil an lialiitual drunkard, oxoeuted a deed of
|t(!! tstate in trust for the keeper of the tavern
I'liiTihe lesiileil, — and who was in the lialiit of
IsiH'lyiiigiuni with whatever drink ho desired, —
|!'» 1 greatly iuailciiuato einisidoratioii, and after-
Iwls ileviseil the .same iiroperty to his hrothor,
|lk« miirt, at the iuataneu of the devisee, sot
|Btktho cuuvoyaiico, ami onleretl the t.iverii
«l«r to pay costs of the suit. CInrkson v.
'''«,-taiy. 244.
An improvident deed, oht lined liy a tavern
keeper from a lioarder who was greatly addioteil
to intoinperanee, was set aside with costs. Mr-
(Iriijitr y. Jititi/ltut, l-_>('iiy. -JSS,
An old man, greatly addiotod to drinking,
executed deeds of all his property, real and
personal, to the tavern keeper with whom he
lioarded, and accepted in considoratinn therefor
tho bond of tlie hitter for his snpi>ort for life,
\\hioh was an inadei|uate (•oiisideration. Within
ti\e months afterwards the grantor died ; ami
on til' apidieation of one of liis heirs, tho eourt
sot aside the deeds with ousts. Utiiiti- v. i'tntk,
K; C'hy, 84,
A persiiii who had at one time been ivmaik-
ahlo tor strength Imtii of liody and mind, ami was
mnoii res]iooteil, having lieeoiiie, from hahitnal
driinkoiiiie.ss, imhecile, made a deed of valiiahle
property to one of his sons who hud lieeii in the
hahit of furnishing him witli drink ; and aluuit
lifteeii months afterwards exeenteil a deed for
till' same property to the wife of the same son. A
hill was afterwards llhd to set aside those ooii-
voyancos for fraud and incaiiaeity on tho part of
the grantor. After evidence had liei'ii taken at
great length, a release of the action was olitailiod
from the plamtitl w itinuit tlie intoi-vention of
any legal adviser on his lichalf. The omirt sot
aside the eonveyanoes, as also the release, with
ousts. AV/vV/..- V, Xt fi/U, (i Chy. I-Jl.
To a hill for spocitic perforniiiiue of an agree-
ment to pure'haso lands, the vendee sot n]i tiiat
ho had lieen led into drink hy the fraudulent
eontrivances of tho vendor, and while in .an iii-
sensihle state of intoxication had been induced
to sign the agreement, in w hieii the price stipu-
lated to 1)0 paid for the iiroperty was most ex-
orliitant, ami which was now songht to ho on-
forood. At the hearing it was clearly shewn
that tho purchaser had hoen at the time of
executing the eontiMot intoxicated, and that the
price agreed to lie paid was oxorhitant, Imt tiio
court exonerated tho vendor from ;iny fraiidn-
leiit eondnct, and therefore refused to give the
defendant his ousts in the dismissal of the hill,
Silttijiilil V. 'J'tiiitiiiiiitils, () Cliy. ."iliS.
A iierson given to drinking made a deed to
his wife, nnderstanding what he was doing, Imt
without professional advice. A hill hy his heir
impoaehing tho deed was dismissed, t'lirrii/iiii
v. i'lirriijiiii, l.") t'hy, ;j41,
A., who was greatly addiotod to drinking, gave
to l'>. a mortgage to seouro a small deht ; the
property was worth at least seven times tho
I deht ; and the rent of half the property for throe
I years would have paid otV the claim. ; hut live
years hoforo tho delit was payalilo .\., without
any additional consideration, released his oipiity
of redemption to H. ; and 15. was allowed to re-
main in possession for seven or eight years after
the mortgage deht w as paid oH' hy routs : Held,
in appeal, altirniing tho deereo below, that the
facts and evidence shewed that tho release was
given oil a parol trust, for tho benelit of the
mortgagor and his family, and that to sot up the
release as an absolute jmrehase was a fr.iud on
H., against wliioh the court should relievo not-
withstanding the lapse of time and tho death of
some of the witnesses, C'rijiiitn v, OifUt'it', IS
t'hy. •J.-.-S,
A testator, amongst other things, devised to
i his wife the proceeds of all his rentable property,
1.559
FRAUD AND MISREPRESENTATION.
i.ir,ii
aftiT lulling iiL'f( ss. iV outlays, fur tliu iimiiitu-
iiiiiicu anil sujiiHii I of horself uiid six infant cliil-
ilrcn, ami gave cfitain ]iarts of liis estate to his
<'liililit'n, to lie (.onvi'ytiil to tlieni on tliu ilcatli
<if tlu'ir niotliur ; ami tlic will furtlior jn'oviilotl
that tlio willow should liavu the jkiWct, with tlif
ajundval ami uons'unt of thu executors and trus-
ters, of whom she was one, to jmt any of the
said ihihlreii into po^.session of the real or ]ielso-
nal jii-oiierty lie(|ueatlie(l to tlieiii after attaining
the age of twenty-one. One of the sons sold the
jiortion devised to iiini, and tlie widow joined in
the <leeil to the ]inrehasers, whieli declared that
the widow had jiiit her son in jiossession of the
lands. The oidy exeeutor beside the wife,
Avho jiroved the will, was absent from the lu-o-
vinee, ami gave no consent to the sale. Less
than two months after the sale the jiurchasers
sold the estate at an ailvauced jirice to one 'I'.,
having in the interval created a mortgage there-
on, and shoitly aftei'wards tlie son died ; ami
thereupon a hill was tiled liy the executois and
the infant children against the purchasers and
their vi/'uilee, T. , and also the widow, seeking to
set aside the conveyance on the gi'ouml that the
same was obtaiued by tiie purchasers framlu-
lently, when tiie son and his nmther were both
in a state of intoxication, produced and brought
alxiut by the purchasers; and that their vendee,
T., was ad'ected with notice, as the want of con-
sent of the executor should have put him on
t'l, o y. The evidence, however, negatived the
*" . 'f intoxication on the part of the son, but
shewed great mental incapacity on the part of
the widow, and tlie court, altliough unable to set
nsidii the t'-ausaction, refused the purchasers
\. '• cor, n. account of their conduct in the
luaiter. ( uHiiKjiriKnl v. < 'tiUiiiiiirntiil, l2l I'iiV. 10-.
See Kdiiiliiifijh L'll'i' As.iiirdiici- Ca. v. Allen, 18
<'hy. 4-2o, p. lh(i(). ■
(d) O/lnr <'ii.-:r.'<.
T., who owned a farm which he had mort-
gaged to its full value, conveyed it to defendant,
ami procured her to execute a mortgage thereon
in his favour for t'l I'-'.'i. Defendant was a woman
of fifty or sixty years old at this time, and had
been living for .some weeks at T. 's house, who
had her entire conlidence. She had no other
adviser and there was no reliablu evidence of the
deeds having been read over orexplaineil toiler,
and no evidence of any pi'evious negotiation for
a purchase by her : -Held, that the transaction
was iuvaliil. JUijic v. Cdnijilicll, 1'2 C'hy. \',V2.
A sale at an undervalue to a person under
whose intlnence the grantor is, is as objecti(Uiable
a.s a gift, ^[ns(,n v. Siiki/, \'2 Chy. 143.
AVhtii a deed of gift is objectionable according
to the doctrines acted upon in eijuity to guard
against undue iiillnenee, the mere circunistance
tliat the grantor had previously expressed an
intention of at some time giving the property to
the grantee is not a sufficient ground for uphold-
ing the deed. Dairnoii v. Ditirnoii, 12 Chy. 278.
A deed in favour of a third person, obtained
through the iuHuence of one occupying a fidu-
ciary relation to the grantor, and not giving him
the ailvice which he (uight to have received, cfin-
iiot be sustained. J\
A widow, to whom dower had been assigned,
•agreed with the person by whom she was em-
ployed as housekeeper, to convey the s.imth 1 ,
in trust for his son eight or nine vtiirsnlil i 1
to wliom it appeared she was luuch attiiohj,! '
iiisideration of a certain sum. for tlif
of which the widow's lands
and were liable to be sold, an
secured to her ; the C(Uisideratioi
layiii,,,.
t.iiu tile
iiiiwritiii.
«'cn' .■lllMVel■,■|lll^.^
' " 'Ul illlllllitv
iiiwuvtr, iiiit
being at all ei|iial to the value of the jiniinrtv
'l"he coui't, in the absence of ]iroiif uf •my m i'
iulliieiice, oppression, iiersuasimi, nr iV;m,l
fused to set aside the agrceiiii'iit as icMinstt!
infant. (Iiiiii-liii y. llidilrll, )•_' ( liv. ."ils.
The plaintilV, a sipiatter on irnun hui,!,, ,<
signed to defendant to enable him to ulit.ii '
patent for the \ilaintifl'. Tlicic was
shewing the trust, and defemlant Imviiii' |,|-,;.
cured the iiateiit in his own name, iihlui'i'i tlit
]p|aiiitill' to release his interest in tlie estiitc f^
less than half its value. Tlierc was lii-em inf.
ipiality between the parties in their" l.nsiin.,,
capacity and otherwise, and deleiiilaiit tailtil t<,
shew that he had given the phiintitf all tliiiiitVr.
Illation he was entitled to, or that tin- iilaintilf
hail made the assignment without iiiu>miii. ,]■
influence. The court held that the plaiutitlwa,
entitled to redeem on payinunt of the ani(iiim„i
ilcfemlant's advances, althoiigli seven viars \a\
elapsed before the idaintitV tiled his liiH' iiii[n,;i;.l,.
iiig the transaetious ; the excuse assiKiaillurtlni
delay being his poverty : it ajipeariiiy that the
parties cimid be restiu'cd to theii' nri^'iiial im-i.
tions without loss to the defeiiilaut. lU-n'hix
luiiniii, 14 fhy. 214.
I»ifl'erences having arisen between tlif ]iartits
A. obtained against 15. a decree fur an atTOiiit |
and large sums were in disimte hetwet'ii tlnin.
AVhile the reference was pending, H. j.iitii rfJiMsel
of the suit preii.ared for A. 's signature : a friniilj
brought A. to H. 's othce, ami il. there iiulnuilj
A. to sign the release in cunsiilcratinu nf s|,'iO,J
which he jironiised to jiay. ( hi a sulisoijiitntj
I day A. went for the money, ami then at H.'sl
request executed a ipiit claim deeil el ail liijl
interest in the land. There was nn I'vidtiHtiitJ
I the true state of the accounts at the tiiii- iifl
i these transactions : A. was sober when ho ciitimlf
into them, and he uniU'rstood tlieir natmv : aiil
H. had no fraudulent pui'liose therein : H, u;u|
a person of large experience, A. iiail littit, '
any, business experience, and his lialiits win
intemperate and thriftless ; and he exfciitiilt
two instruments without the knowleilge of liii
solicitor, and without advice ■,-Helil, that tlij
j instruments were void in eipiity. /;''/;n'».,v/|
\ Lij'i- A-i-'iirnnci' (.'<!. v. Alliu, IS (.'iiy. 4-'.'i.
The owner of laud subject to iiinrtgagi-'j ]
[due, and otherwise pressed fur iiumicv, api'l
' to a third person, who agreed, after siiuie ■
cussion, to jiurchase the real estate, as ais'i tlj
■ chattel property thereon, fiiralmat SC.SIMI. whicj
1 the purchaser arranged, and went iiit" \«'^fS
sion of the property. Soinetiiiie attcnvanlsti
! vendor tileil a bill' seeking tn imiieach tht. siM
I on the ground of undue intineiae ami iiiailoiuad
i of consideration ; but the court, huiiigiif'tiniq
'that the property was nut worth nmri' th(
! .•?7,500 : that the vendor had had aiii|ile tinnd
deliberation between the vorlial arraiigcme!
'• ami the written agreement, wliicli tiiiiu he «
' mitted he hiul emphiyed i.i trying tn il" ''i"
with his property than b>- accepting tlu'
; chaser's ofter, aiid that the bargain iiiaileltt'twel
\:m
m
FRAUD AND MISKKPHKSKNTATIOX.
u tlic \i;mivs,
• an iiL'i'i'iiiit, I
L'twei'U tlitw.
\. yitiirtW.Ml
uru ; A friciull
Ui.iu (if ?^i'io,r
;i sulisui|\Mit|
tliuii ;it H.'sl
j,l ..i all liiil
Id I'VilklKl- 'itl
t till' tim- 'ill
111 lnj i.iitiwl|
iKit\ii'f ; aiiC
vein : B. \n
h\A lutk
; hMu «in
. uxi'iuti'l the)
.wli'iliic -i !ii(
,-ia, that tliJ
V. 4-J.-..
l.nn'V, ait'!*"
Itir Vciwt ■'
lu. as als" til
sc.sOd.wliiq
Lftcrwanls t»
[uai'li till >;'M
|\(l ii\aili-''i"''^
^.i,lf.nifnl'illl2
Jmlilf tilllf I
rtvraiigii'i^
|h tiiiii; W
tii ill I I'lti
litiiii; tlH' I'l
liaailfl'ft**
nrtii'S wiia n» giMiil a ono :vh iit tliu time him that tlieiv More imt, Imt thit I!
luiiiltr tli'^' lii'cuiiiMtaiices t'lmlil liave liuoii tain lots thtTu to wliiili lie wmilil sell
Tt lueil -ili-^iiiissfil tile liill with costn. SlmiiL' ami tho ;)laiiitill hoiiii; iiitroduct
IV
l.-.<i2
iiail lur-
his right,
A. to n.
;:';";;);A:rn/.ii.<'hy. :<-4.
;(irt
w
iavii'.ii
timii'ii
liuriii!.'
\ Hiil"^> li''^''"H '' '^■'•'''" to (I'ltaiii lamls liu-
l,'„jiii' to tin; Six Nations Indians, [iivvaili'd
''"ij'j .fncrsMii to aft as a-;t'iit in iirofuring thu
l' i,'wli;ili!>iit'"t I'.V tliL' fliK'fs of hfr titk', « hich
I'liW' ''i""-'!' y^'''' trciiilile ainl uxiifiisu mi thu
'^ ' ,t till' ayent, ami in acconlam-c with sitfh
',. fiiiti"ii the rrowii jiatuiit for tin; lainl was
'"Si'ti-'il ; wliereiiiioii the !,;raiitee of the erown
'I'lvtwl l'^' '^'-''''^ "' J^'" '" '''^' "rt'-'i't 'I" '""'.'■
" I I'liiiiietv of the estati; as a reward f<ir his
..rvice^^ il' lil'"'''"''"'K tl'^ «''''>'t lireVloUsl.\- to
•lifhslie li:i'l exeeiited a jiowor ot attorney in
if the ui'eiit, authorising him to sell or
„,„rtj,,,i;c all iKT lands in rm„.,- Canada, and
siilwMiieiitlv went to Kn-lanil, where she t ■
til reside until the time ot her death,
lier resiiloiiee there, she urged the agent
,„,li<niiso of her moiety of the iiroperty, and in
tilt omrse of the eorresiiondeliee, stated that
4. -.viiulil he willing to aeeept t'l.OOO for it,
|lj,.|„eiit, iu ISW, having directed the iirojuity
toU'siilil hy a\tetiiin, his sister lieeaine the jiur-
■h;UHT for i'l'-!^. having authorised the j-ersiin
Uiiatteliileil to hid at the sale, on her liehalf,
, ,'js high :l^^ t'f<*"> for the property. I'lion a
Lilftik-il h.V the sou and heir of the owner, in
\\,\ several years after the agent's death,
^ekiiiL' to set a.side the ileed of gift, as having
K-u niitaiiieil hy undue inllueiiee, and the sale
■iv,iiutiiiii 11'* hiiving lieeii made at a great uu-
«nalui;;tlie eoiirt, under the eireuinstanees,
I Mii^i'l to ilisturh the title derived under the
lilctil"! L'ift ; hut set aside the sale liy auetion,
Isliaviiii; heeu made at a jiriee not warranted
Ik the :ij,'eiit's authority. The infaney of the
I iiiiintilf at the death of his mother, and his
L'feiidant intending, \-e.,
Iv repre.-^'Uted to pl.iiiitills
, and
lant
jiaid C.")() for his goodwill, tugether «ith the
lirst instalment reipiired liy governmeiit, •.ml
reeeived from him a nreipt tor the latter Mgned
liy A. as eiow n lands ,i:;ent. 'Die jii'v found
that the n^preselitation that there were 110 lands
for sale was false, and made liy A. in eon eit
with l'>., toenalile the latter to olitain an advanee
upiiii the government price: Held, that the
f."i() and interest might lie iiMioxered in an action
ag.iinst .\. and I!., either iilmn ii spei'ial count
ehargiug the falsi^ reiireselitation, :'.nd the daiii-
agi' sulleiecl iu eoiise((Ue:ice ; or as inniiey had
and received. Mr.\fii<lrr v. (I'l'/i/is ,/ «/., li(
(.>. I'.. •_'u;.
hedaratioii, that d
falsely iUid fraudulent 1
th.itcertain land and timlier were defei
that he had the right to grant to plaiiitilis the
privilege of cutting the timlier ihereoii, and that
all Clown dues in respect of .such timlier and tin;
cutting thereof li.id lieeii paid liy him : whereas
the land and timlier were not defeinhiiit's jiro-
perty. imr had dc.'eiidaiit any right to grant to
plaintitl's tin; privilege of cutting the timlier,
nor had tlu' said dues lieeii paid hy ih;fendant,
as defendant well knew ; liy reason wnereof the
lilaintill's Were induced to eoiitraet with defen-
dant to purelia e said timlier. and paid him •■^SS
for the same, and for the privilege of cutting it :
and lint to investigate the title to the l.iud ami
timlier ; and relying on die same, they cut and
conveyed to (,)iieliec the said timlier to he sold
on their helialf ; and tliit liy rea.soii of the pre-
mises, and lii'fore sale, the timlier was seized oii
liehalf of the crown for non-p.iymeiit of the said
<liies, and plaintitl's had to pav the same, and
the ille<
uliintill 'it the 'leatu <ir iiis inouier, ami 111s -himages for the illegal cutting thereof, and wen
k'lw s'iil,sei|Ueiitlvoii dutv with his regiment, 'Ic-imved thereof for a long time, and prevented
to'ikemea sutlicieiit circumstances to excuse 'luring that time In.m selling the same, and the
tlieikhv which had occurred in instituting pro- •'<:ii»l' lieeaniegreatlydepreeiated 111 value: -llehl,
iwliiu'sliv him ; and it was shewn that a suit 011 demurrer, good ; tor it sutiiciently disclosed a
ini.tituu-.riiv his mother, during her residence ^'Hi--*^^' "f ivctiou against defendant for assuming
iji Fii"laii.r had hueii dismissed, owing to her fraudulently to sell the privilege of cutting tho
iii,«tv to' procure .security for costs to he timlier di.scharged troni crown dues to which it
I ft:
'A'tiv V. L-il'iftii, 7 <'hy. -til'.
Is, /'.'«'' "/• .^fi^ri /irrsrii/ii/iiii) iiM (I t iron 11(1 oj
.k< II fimmiil (if ,l(V;ii)/.]-AVheii on a sale of
Ibl tlwie lias lieeii a ei)n\-eyaneo perfected,
•Jiiltjs tniuiliileiit niisstatement or eoneealmeiit
lb tltarly made out, there can he no action e\-
|«pt "11 the covenants, and where tin re are no statute of Fran
Iwtiiiuits, or none that will extend to the cause ,,i- intended tl
loitviotiiiii. there can he no action against the
Iraiilur, Sciiilile, that where fraud is estalilished,
IkttliiLiiiivfyaiice has heeii made, and the p.ir-
Kes caiiliut he placed in statu ipio, then the
I.'enkilyisliy an action for deceit, and assumpsit
li"tiii"iuy hail and received, to recover the pur-
Itk-v iiiMUty, will not lie: -Meld, that on the
jtri'ltinT set out in this ease, the defendant was
Mslicwiitii havelieen guilty of fraudulent mis-
jKjittsiiitatiiin or eoiieealuieiit title. ThmiKts v.
ICn..^, 11 il B. ."):!»
was sulijeet, when it w.is not discharged from
them ; and that it did not profess to set out a
ease of either defendant or plaintitl's heiiig mere
wroiig-ihiers, without license of any kind from the
erown. (,>u;ere, as to an action on thec:isc lying,
where the cause of action :iriscs from matter of
contract. K(U(((II d a/, v, IIokkII, IliC. I'. !i:!.
Before the defendant can he ehargeil with
ileceit in a contract for sale of land, he must he
shewn to have contracted as required hy the
s, and to have clearly [iractised
le deceit allcL'ed. I rchni \ . Mi ri-
,t„i(t, :i (,>. n. 'll-l.
l)eelaration on the c:isc tor falsely alleging
that a cert:iiii hotel stood upon defendant's laud,
whereliy the plaintiH' was induced to purchase
said land, detendant well knowing that the hotel
was not on his land, but on land adjoining, and
to the (^tiieeii. I'leas. I. 'I'hat the said
hotel was not erecteil upon the land <if the (^tuceii,
&c. ; •_'. That the idaintitl' knew th:it the false
repre.seiitations, &c., were false, and if damnitiei'
therehy, he was daumitied of his own wrong ;-
.\,. a crown laud agent, being asked by the Hehl, both pleas bad. Hehlalso that the deelara
|laiiititl whether there W'ere any lamls for sale tion, given at full length in the report, was gooc
Pthcgiivemnient iu the t()N\'n8hip of M., told iu substance. Tcnnci-ii w St'dci, 'tii- U. •J,")4.
• •^ f 'IT"
ir,r)3
FRAUD AND 3lISREPREi^P:NTATI(;)N.
l'.G4
rr ;i
l)ffuiiilant (iwing tliu j)laintilT fiii bills ami ilufomlaii . cei'taiii laml, wliitU tjic iilaintitl id
notes, oxfciituil til Iiiiu a iimrtgagu fur the HoiiteiH'.iat lie iiail jmrcliaseil liuin j^mvciiihi 1 1
aiiKiiint, wliiili the i>laiiitill' aceejited on defen- and \va: entitled to ohtain a jiut
dant'.s leinesentation that it was a liist claim on
the lanil, hut on seanhinj,' at oiiee lie found a
jirioi- iueuniliranee, and told defendant he would
Jiot aeee])t the luortg/ige : Held, that the jilain-
till' eould not tliei'eui)on sue ou the original eause
of action, luit should at least have tendered a re-
conveyance. Ailiiiiit V. Xi'l-iDii, '2'2 <i>. H. !!•!•.
ateiit l,,n,ii ,,av.
n lent of .*.")()() : that defendant tluTi.n|iiiii",'',vV
nanted to iciy thi; i>hiiutiti' the S.'ilid.ainl iilainti'ii'
covenanted that on ree^'iving it lie WduM^.m,,,
a )iatent to he issued iu defendant's iiami; • tht
defendant had always Ik'cu leady tn iiav • liir
thatiilaintdf iiad not |)urchased fniin tliri'-uuri,.
inent, and had no right co the laii.l, 11,,'i'
Declaration, that the dufendauts owning the | ''.'^ 1",'-';"'',' '' '"''V',* = '"!'' ''' '''-''^■'"l^u'it iiai.l 1:
lan<l ui.on which the i.rovincial exhibition was ^'"-' f •,'""• he woul(l receive no coiisi,imti„ii. ,1
Would he uiKilile to recover it
"iilil
lini
'iiiil
had plea, for the agreement was nut allei'i',! tnln.
the same as tiiat sued on ; no fraud wasavi-ii, J •
no delinite misreiiresentatioii which iiKliicuil ,\^.
fendai't's contract ; no hi'cach of cmitract niitlie
jilaintill"s part w.ih stated ; and no •^'ninml (ni-.n,
injunction was shewn. ('niiiirnii \- Jim-;',-
,inii>, --VS (.). H. L'(J-_'.
Action on the comnui.i counts for work ai
to lie held, advertised certain portions to he let
liy auction for the ])urposeof refreshnuMit hooths :
that the jilaintilF attended and leased one of such
portions : that at tiie auction defendants maile
certain statements and representations as to tiie
positioTis <if the gates and entrances to the fair
grounds, the number of persons to be allowed
to sell refreshments, and the relative positions of
the booths, on which tlie value of tiie [daiutitl "s
letting wasestiinate(l and depended, and relying labour in cutting and sawing tinilicr fcir .Kit
on w liich the ]ilaintitl' )iurehased and erected a ilants. I'lea on ecinitablc groiiinls, in ,,|,i|.
booth ; but that defendants deiiarted from such stance, that the plaintitt'f.dsely and liainhiiuntlv
reiu'csontatiolis, and so eiianged the position of repi'eseiited to the defendants t liat lie liaiKt)'.
the gates, ami the number of the booths, that tain interests in and the title to certain l.inils
tiio phuntitl's letting becamo useless to him; — and certain interests in and tlie ri;.'lit tn uit
Held, that no cause of actic^n was shewn, for the timber on other lands, wiiereliy dcfeiiilaiits miic
<leelaration was f<ir a wrong, and the stateineiits induced to purchase the .said interests, itc, iiav-
were not alleged to have been false when made, Mig a certain Hum do«ii, and seciiriii>' the iv^t
or to have been made in order to induce the ' .ly nnu'tgage ; and it « as further agreed that the
plaintiff to contract. L'li'/ v. T/ir liaiinl o/' plaintill' should cut ami saw into iuiiiljcr all the
A [I rim llu re fur i'/ijnr ('(tinnhi, 2(5 (}. B. oWo. ' saw logs on the said lands tirst iiientidiicil ii.r
: the defendants ; that defendants, relviic mi i.hiiii-
A.'< II (liuitniil „/ J)r/riin:]—A. was in pos- , tilf's representations, eiiteie<l iijm'hi sai.l i,,i„lj
session of the premises inciue.stmn, without and cut and made timlicr on said lands scomaiv
title thereto. B. came to him and represented above mentioue.l, and expended a lar'c siiiiMif
himself as t.wner of said premises, when 111 fact „K,iiev therein ; yet that the plaiiitiiriiad iiut
he was not. A. by writing agreed to lease from the right in respect of a laix'c (piaiititv of the
B. for live years, at a rental of f4 10. This writ- ^aid secondly above mentioncl lands, !,v n,,.-.!!
ing was signed by A. ahme : — Held, that under whereof defendants acciuird rigiits „f imR-hks
the circumstances A. c<iul<l dispute B.';; title to y.^\^^^. t|,,,,, the plaintill represented lie lu.ssosid,
said prenii.ses on the gnuinds of fraud and niisrep- namely, bv a sum exceeding the plaiutilfs'chiim ';
resentation. Li/iu II v. r,uiiii.-i,ii, I V. V. 144. ;„„i defendants lirst became aware of the sai.l
One W., aa agent for J., scdd to defendant two t'idse ami fraudulent ivpreseutatimi after tiny
lots of land for.sl(KH), receiving .SlOO down and l»;id purchased said lands, cut the tiniher an^l
defendant's notes t(U- the balance. This laiitl e.\pen<led the money as aforesaid, and defeiMlaiits
had been purchased from the crown in KS.-)4, by are likely to lose a large (jiiaiitity of tiie sahl
one Wake, who had assigned his right to (/cdvin, timber and saw higs so cut and made )iy them
and Colvin to J. The instalments had all been as aforesaid : that the plaintiff's cause nf aeti.iii
paid to government, ami W. t.dd defendant that arose in, cutting and sawing into liniilier, uii.lir
-when he did the settlement duties, he could get «iid agreement, the saw h.gs upon the saidahuvc
the patent. He also handed to defendant the , "iii'itioned lands, and otherwise in part iieil'.inu-
assignments and receipts, with an assignment ance of this agreement. And defciidaiits iuMVid
from J. to defendant. The lots were then va-
cant, and defendant soon after went into posses-
sion and performed the settlement duties, but
when he applied for his patent, he was inftu'iiied
that the original sale to Wake had been cancel-
led, as having been obtaineil in fraud of their , ^
regulations; ami to avoid losing the land he ! liquidated damages, the subject of an actum .it
again purchase.l it from government for .s.-^O. j law and not of a suit 111 ciiuity : dhhl, i\U,
In an action brought bv J.'s agent npon the that no ground was shewn tor thereseissiiiiiof|
notes, W. swore that ho" believed what he told i the contract, and an aiiieiidiiieut, liy aJdiiiga:
defendant to be true, and had no doubt J. also '. pniyer thorefor, was reluscd. (^tiia^ro, 11.^ t.Mle-
that it might lie declared that they were iH]
liable to jiay anything to the plaiiitilf, and th.itJ
the plaintili' might be ordered to jiay defendaiitsj
what was just and eijuitablc for the loss they hailj
sustained: — Held, plea bad, as constituting iiOl
defence, but only amounting to a claim fur uii-:
lielieved it, and there was no proof to the con-
trary : — Held, that there w.as no evidence to sus-
tain a defence on the ground of fraud ; that there
■was not a total failure of consideration ; and
that the plaintiff therefore was entitled to re-
cover. ]V(ilh;r v. Doiojldx, 23 Q. B. D.
Deelaraticin on a covenant to pay $500. Eqiiit-
.able plea, that the plaiutiff agreed to sell to
fendants' right to claim a rescission of the eoiH
tract. Laj)p v. Fii-ithruvk it iil., 24 C. 1'. ii'X
Tlie defendant, to an action 011 a onvciiant fori
payment of mortgage money, pleaded mi eiiuitalils
grounds, that before making the iiiortjjage sued?
on the plaintiff falsely and fraudulently reiirfr
seiited himself to be the owner of the laiul. lre<
from all incumbrances, but that the legal estat(
P«
•li tlic \iliiintitV ii)irf.
L'd IriiiiL ;,'MViTuiMiiit,
ii \i;iti'iil I'lir (lit jiuy.
lllUt tlliTt.lllliill ciiVl'-
tlic S.'idO, ami iil;iiiitill'
1),' it llr Wiiulii r;ui>t;
iVuiUllit's iiiuiii' ; tliiit
uu iL'iuly tu ii;iy ; liut
liisfil friiiii tlirgiAi.ni'
I till' liuiil, iiiiv nmlil
it' iti'tViiilimt ii;iiil liiiii
• IK) (.•iiiisiik'iMtiiiii, mill
VLT it li:i>-k ; ll.'M, a
it WHS licit uUfgUll tiiln'
nil friiii'! wn.Havi/iivil;
inn wliii'ii imliiccil ik-
(.■ach cif fiiiiti-ac't nil till'
; and iio^viiiiiiil t'nr.iu
('null I'' III V. Hui-fim--
u c( Hints fur wnrk iiml
rtiiiij; tiiiiln'i' fill' lU'i'm-
a!iK' gviiuiiils, ill Mill-
I'alsi'ly and framliiU'iitly
udaiits that In; luul w\-
e titlu to ri'i-taiii lamls
II and tin.' i'i;^lit tu iiit
lifvuliy (IflViidauts wtic
said intfVfsts, Sl'., (lay-
I, and si'ciiriiig tlii' it-t
,s furtlR'i'a^reetltUattln;
saw iidu ImidiiT all the
uids tiist uiLiitiiilioil lur
L'udants, a'lyiiigiiiil'liiiii-
uiiteix'd lil"ill siiid lalnli
cx nil said laliils sifumily
oxpL'iidi-d a lar;^o sum iii
lat the jilaiiitill iuul imt
■ a largu iiuautity ol tlii;
ntiiincd l:iuds. l,y R'a.v.ii
|uiivd rights 111 laurlik-s
ri'pivscnti^d lie [lussi >Hil,
diiigtlif iilaiiititts' claim;
iL'eaiiie awavu nf tlic saiil
L'lircsentatiiiu alter tiny
lids, (.'lit thf tiiiilicr aiil
al'nri'said, ami dolVmlaiitJ
-(. i|Uantity 111 tlu- siiili]
cut and iimdc hy thtm '
iilaintitV's cause ut actimi
iviiig into hiiiihcr, miiliT
• logs niimi the saiilalinve
|the"wiso ill part Veil"! m-
\nd dcfeiidaiits vravid
aivd that they wiv n-t
Ito the plaintul, ami tli.it
rdeivd to l.ay 'hiciiilauts
'alile lor the loss they hail
had, as constituting »»
ii.tiii- to a claim for mi-
. snl.jeet of an actioii nt
I ill ciuitv •• -lliW, iU=".
Lwn lortherescissiimof
^niendnicnt, hy aiMm^*
..fused. (,>uarc, ast.Mle-
u a rescission ot Uie e.^i-
1 action on a covenant j4
Ley, pleaded oil eHU.t^
'aking the mortgage >,m
I and fvaudideiitly re t^
c owner of the hrnkr^
but that the legal e.taU
l.il)."'
FRAXTD AND -MISKKPRESKNTATlDN.
ir.GG
i vested in onu W,, who held in trust for liini :
'lilt ilefenili'nt relying U]Min his reiiresentation
' reliiised the land, iVe., although the jdaiiitiH'
t'hvii«'ell knew of a mortgage to the Trust .t
I ui'"., which he fraudulently eoneealed from
/'^lefeiidald ; and thereiilion said \V., at the
iliiiitilf" rei|uest, eoiiveyed to defemlant liy a
I, iK'iiiitaining ahaoliite eovenants for title free
iriii'ii iiieniilhrances, and defendant executed the
irt'ML'e sued on to secure the lialaiiee of [iiir-
"hU miiiii^^'- ''''"^ l''*-''' '^''^'" '^ll'V*"! the exis-
leiK'tdl the mortgage to the Trust Hi Loan Co ,
iliich f.aet was well known to the plaintillat the
Mifsueli sale and false reiireseiitation, Imt
»•,!.< Il\.,.uiilently eoneealed hy him from defeii-
liiit I'lir the jiiiriiose of defrauding did'endant,
tfliiHitlierwise would not have imrehased : that
the land was soM hy the Trust and Loan ('o.,
,11,1 lyeiiilaiit was evicted therefrom and lost
thi^same, iSe. Senihle, that the jdea shewed a good
Ual ilefeiiee on the ground of fraud, hut was
ttit'iifli an eiinitahle Jilei as could he admitted
j „„,li.rtlie t'oinnioii Law rroeeduro Act. 117/(7' - .
I i,„,<. V. Ihii'i", 120 (i- H. 7-S, ()."). I
IVdaratioii on defendants' covenant to pay the
Ti.iuil rent on land, which li. held underlease,
I anil wliieli the plaintiU's, his exeentors, hy deed
i tuitins; tlie lease, had assigned to defendants.
I Deidiihints pleaded, hy way of eiiiiitahle defence,
tint the sole ohjeet of their imrchase was to
Lt(,t Iniilihngs on Front street, for which juir-
1 tii;e the frolit.ige on said street was ex [iressly
itiiiiilated for, and included in the description of ;
iiiil iiiemisus, and the rent calculated on such ;
fr(inta!;e, as in the dejlaration inentiiuied ; and
tkpriiperty without such fnuitage was valueless ;
ikttliey never were in actual possession of any
rartiif the premises : that since Ajiril, IS(!'2, de-
MiUiits tii-st discovered that the description in
lilt liMse did not include any frontage on J'ront
strer.; ami so defendants alleged that hy sucii
emir ami oniission they had not the huids they
Wcaiiieilfiir: that the land in the lease to B. wa.s
!iieci!ieallyilescrilied,and the northern houudary ,
»titailjiii"iied the southern boundary of a strip of
bl heliingiiig to the city, twenty feet wide,
tsteniling to I'ront street : that such strip was |
ittiWeil in tlie deed between plaintid' and ile- I
k'bnts: that the eorportion had, since the;
aeciitiiiii ii{ such deed, entered into possession :
oisiid strip, and now hold it by title paramount '■
totheiilaiiitilfs :-— Held, on demurrer, reversing
tke jiiilginent liedow, that the plea atl'orded no
miwtr, t'lir no concealnieiit or imposition was
illcJCil ; and defendants, by calling i'or the lease,
(ii which they h.id notice by thu assigmneiit,
night have ascertained the facts at first. Titlhut
,(M/.v. y,v«;/M7,(/., 2:iQ. B. 170.
T'l a declaration on the covenant to pay, eon-
Ibisid in a mortgage of lands for the balance of
|l«^'hajc mmiey, defendant pleaded apriormort-
p.iti B., executed by the plaintiff', and frau-
li'iltiitly CDiiecaled from him, which had after-
|«rl< li»en fiireelosed, and defendant ejected.
|Tln iJaintitf repli.;d, in substance, that the
Mtjiage sued ou had been assigned to 1)., for
'te benefit the plaintitl" was suing, and that
|Wiirc this action, by indenture between D. aiul
•■ mortgagee, of which defendant had notice,
«di liriiir mortgage "was released and dis-
"gid ;"— Huhl, on demurrer, that the reiilica-
» was good, for 1). , the buuelioial plaiutitf,
mng proeurwl the discharge of B.'s mortgage,
had removed the (Uily objection urged by defon-
<lant, and was in a position to give him a gooil
title. . Mi-Uiiiiiiilt v. W'oikiiiiui, '1\ i). I!. KiV.
To a declaratiiui on the common count for
freight, defendant ideaded on equitable grounds
as to .S!t(iS, ])art of the money claimed, and being
the ditlcrence bi't«cen !H> cents and ."^l per ton,
that the lilailitill's fal-ely and fraudiihntly repre-
sented to defendant's agent that defendant had
agreed to piy tlieiii freight at .SI per ton, and
had chartireil their vessel at that rate, whereas
defendant had refiiseil to jiay them more than ilO
cents per ton : that on the faith of such repre-
sentations the agent delivered to them the coal
and received a bill of lading expressing the
freight to be .^l per ton, and the jilaiiitills carried
the coal and delivered it to the agent before de-
fendant could forliid them : Held, a good plea
on demurrer, tlioii^ji unnecessary, the defence
being admissilde under never iinlebted. /linn-
iiiuiii/ if III. V. Ciiiiijii: — Wi (). 15. ."(17. — llagarty,
sittini' in vaeatiim.
4. Fniiiil ur Mi<ri jiri-.i'-n/iifioii m a (Iriiiiinl for
III I'll/ III K'liiitij.
A bill being tiled to rescind a contract fortlie
purchase of an Indian right to certain lamls on
thetir.md Itiver, and to set aside the assignment
executeil in pursuance tliereof, on the groninls
of fraudulent misrepresentations, or to obtain
eompensatiiui for an alleged deliciency in ijiiiin-
tity : - Held, that as the whole estate, both
legal and eijuitable, was in the crown, the court
would not interfere, even if the plaintitV had
established the case stated ; anil that no fraud
having been proved, the bill ought t<> be dis-
missed with costs, linirii v. IIVi/, I (,>. ^i. 287.
Where a debtor, to cfTcct a coinpromiso with
his ercditor.s, ottered a mortgage on property,
which he represented as belonging to a person
who desired to assist liiiii, and the creditors ac-
cepted the oiler and took the mortgage, but
afterwards discovered that before it was execu-
ted the debtor had obtained a ci'iiveyancc of
the property to hims(df : Held, that .'■ucli con-
veyance was, under the circumstances, subject to
the mortgage. Fraii r\. .Siillnrlitiiil, '2 Chy. 442.
Defendant induced plaiiititf's agent to agree
with him for the sale of Black Acre, the agent
vsupposing he was selling \Vhite Acre. Tho
agreement was set aside with costs, it apiiearing
that the agent's error was either fr.uidulently
occ;isioned, or contirmedby, or at all events well
known to defeiidant, when he entered into the
agreement. Tnl'i'it v. //iiiiiUlun, 4 Chy. 200.
In 1810, one Street .agreed in writing with one
IJyckman to furnish the latter with certain sup-
plies, in eonsiderati(Ui of which Street was to
receive from Ryckman a conveyance of certain
lands ; and the agreement was deposited with
one Benson. The supplies were only partly fur-
nished ; but in 1824, deeds were prepared by
Ityckman of the lands, and were handed to one
Shook to be delivered to Street on getting up
the agreement. Shook delivered up the deeds
to Street on getting an order on Benson for the
agreement ; but ou his presenting the order, it
was found that tho agreement was not forth-
coming. The agreement afterwards got into
Street's possession, and no explanation wivs alfor-
4- '
Sa* ff'''ils 'i '■ '
lAr,;
FRA r T) A y D MTSK KPH KS KNTATK )N
156^
If iiLL
lUilcf tliis, [n 1S"J."i, tlu' (Ici'iln WL'iv iU'ciili'ii-
tiilly ilcMtmyiil l>y tire. Scvonil iictiniLs uf
t-jfctiniiit a|i|)f.ir(il tn liiivc liccii uftuiwardN
liriiiinlit, ami with \aryiii;,' ii'sults ; ami in IH.'id,
a liill was lilid liy Stivi't's di-visi'u ot' jiait nt' tliu
|)riiiP( rty auaiiist tlio clct'clKlalit, «lii> ilaiiiicd
iimli-i' jlili's, t<i wliiMii llycUiiiaii hail .-<>lil ami
Cdlixcyiil till.' ]i|(ilnlty ill ls;i'_'. 'I'lifliill, wliirli
l>rayi'il I'm- a ciiiivcyaiifi' ami tur tlu' laiici'ilatiini
<il till' MilisLMiiii'iit iIi'lmIm uiiclcr « iiii'ti lUlVmlaiit
ilaiiiiiil, wa.s, iimli'i' the I'iivuiiistaiu'os, ilisniis-
huil with c(p^ts. Sirifly. J/'i./i liimui, .'tChy. I'J.S.
A resident in I'.liL'land (n\ niii;; lamin in ( aiiada,
wlii'i'L' III' iiad iu\ir liivn, was iiimd liy a irsi-
dent wtir the lanil tn make iiiiii a luaso. wIik
roiiri's<nti'd in his (.(iiifsiiiindi ik'c that tlu' lands
Merc nmniii]iied, save liy scmic si|uatters, mIki
had liuilt sdiiie lints and w ere >tii|i]iinLr the land iit'
must cif the valnalile liniher, d whieh they were
nearly denuded ; that the lamls wei'e lialile to
t'cii'teitui-e liir taxes, ami that the title dt' these
trespassers wiiuld shortly lieeoine alisiiliite liy
lapse (it time. The dwiier was thus imlneed to
oxeetite a leafie I'cir twenty-niie yeais, whieh he
transmitted to the lessee, who went to the ]iei-
sons in possession, and ;,'iit deeds of (|iiit-elaiiii
of theii' interest lespeetivily, taking from him a
liond to reeonvey in ease he should not lie enti-
tled to the possession. It was shewn tluit the
lursons wei't; not as represented, hut sulistantial
farmers, with valualile elearings and liuildiii;.'s.
I'lMin a ili.si-overy of the misrepresentations, the
lessor and the oeeu)iants w ho had exeented i|liit-
C'laims tileil a hill to set asi<le the transaetions,
ami the eourt held them entitled to the relief
prayed for, and that they wei'o not improperly
joined asplaintili's. Jlii/,,/\-. ('iiriitiinj/i, .") ( 'hy..'i7.S.
h. . as daiii,'liter of a I'. I".. Loyalist, had lieeii
f ranted a lot of laml, liut left Canada for the
'nited States, in l.S"_',"), where she had resided
fvei' sinee. \'arious jiersons took pos.session of
the laml, and improved it so that it was worth :
£•_',,")(»(). ( '. sent his agent to \.. in Miehigan, to '
treat for the purehase of her interest. This agent
made numerous false representations as to the
jiosition and value of the land, and as to the in-
tentions of his principal, and thereliy induced I..
to convey her interest in the laml to ( '. for an
ineonsider.dih' sum. ( hi a hill tiled to set aside
this conveyance :— Held, that the representa-
tions made liy the agent were material, and to lie j
considered in weighing the hona tides of the con- |
tract, w hich was ordered to he cancelled. J.nlhuni
V. <.'/•',.■</-//, 10 t'hy. .SdS.
A party on a sale of laml attemleil and stateil '
that he was Imying on hehalf of his lirother'.s i
family, the ett'ect of which was to prevent com- i
petition at such sale, and he hecame the pur-
chaser ; hut he suliseijueiitly refused to admit
the right of the jilaintills, his hiotlier's family,
to redeem the proiierty in his hands. The court
declared the plaintilis entitled to redeem, and ;
ordered defendant to pay all the costs of the |
miit. IViit.^iiii \. ■/iitiKx, IKChy. ■'{,"». |
The jilaiiitilV tiled his hill, praying to have the '
l)enetit of certain mortgige securities executeil '
l>j' defendant, founding tiis right to relief, inter |
alia, on groumis <if fraud, which he entirely failed '
to estahlish, and in his hill he had made state- '
luents which he knew to lie untrue, and sup-
pressed the truth in other matters ; the court, :
considering him entitled to relief on other I
grounds, which he hid sustained, liiiiilt- ii ,1 .,.
in his favour, hut without costs. //„ ; *■""'
M,.-M, 4('hy. MS. "■''"'•" ^
Misrepresentation in iidvertise'.iniit df i,, i,
he sold IHleet of. S,;i O.J,„n,. y 77„ r '"
I \l I ' • It ■! !■ .. . ' "I'll" :\
mill .Mir/iiiiiif.-. Iiiiililillij Siii'i.tij^ "iCIiv '('!■
Till' Citiiitilii I'l niiiiiii III llii'ililiim „,,,/'.■ '.* '
I • 1» ■ •* ■' '" ' '^lll'llhu
Siii'iilij \. } (iiiii,/, IS ( iiy, ,')(;(i. '
Mv the advertisement of
lam
in lots. It was stated, ••The ,s„i| j, „. n
adajited for gardening purpi-ses, aii.l a ^.i„|,j,|
erahlc portion of the liropeny is e'lMi,.,! „j,[','
line grow til of piim ami oak," wlii.li «il! vitii ''
hirge i|iiaiitity of cordw 1, and the ivii'i,iii|,u
is covered w itli an ornamental seroinl nimvth n
evei'greeii ami various other kinds cf tnx'.s" \
purchaser at the sale, whieh (,„,!< place u|i„ii tli^
priiperty, set up as a defence to a suit fur s|,i.i.i|L
perlormanee that the .soil was not my], „, ,, ,^
reiireseiited, and was unlit for giinlfuiiiH i,,,',"
poses, and that the trees upon the |iin|K.|tv (u.,,!
not of the description set fort.i in llie aih'iiti. •
inent :-- llehl, that these relirc-eiitatioii, |i;iviiK
lieeii made in respect of matteis wlii,.!, „„,'
ohjects of sense, and as to wliicli an intfn,!,,,"
purchaser ouglit in |irud(nce to Imvo cNmniiini
for himself, formed no ground tor lelievini. the i
purchaser from the contract. < 'muk-! y fi,,,-
•U'hy. ;}I7.
The rule is, that to entitle a i«u't\- tn stt ibide i
or vary a deed on the ground of niisiviJKs.iita
tion hy another party to it, the evidcnivtlunif i
must lie the strongest ]ios.sihlc ; allil w|iii,;.,|
vendor makes verlial statements in ivl.itinii M
liroperty, the correctness of which tliu iiiiivli:Mr|
has the means of testing hy refcreliie tu ilnai.f
nients within his reach and does nut cl .<.■ tiuli)!
so, he will not, on the facts turiiiiiL; nut t« l«|
ditl'erelit from what they were rc|iii'«oiitid, 1*1
entitled to any relief. ('iifi/<.< \, Ji,i,:,ii ■'[
Chy. -M.
M. having hy fraud iuilueeil II, tn iidv.iiKi
money on mortgage U|ion the assm-aiiuu that the
title was c<irrect, although well awiire that thai
[larty executing the mortgage had im title, a \nia
of ne exeat was issued .-igaiiist him, .\ iwitiiiL
to discharge the writ on the grouinl that tlir hill
alleged that the delit arose> out of the fraiuliikiitl
conduct of the defendant, was refusal witlu'i.-t*
llinilir v. Miiuiiljiiii, tj Cliy. 4.'<,'i.
'Where a party desires to iiupcach an iiistiui
meiit on the ground of frauil and cxturtiini. till
more convenient course is, to institute in'iieiaa
iiigs in order to annul it, as it is rarely that etitd
can he given to a defence on sneli gruuml in|
suit to enforce it. Kiiiiitv. Mrlnln.^/i, IdCliy.
An uueipial partition ohtaincd in a ('mmh
Court against a niinor and feme ciivert thiiiiiia
the contrivance of the co-ten.iiit, the ^.tus
of theguanlian ad litem, and the niisaiipivikll
sioii of the referee (appointeil inuler tlie
section of the Partition .\ct) as tu the extent <
his iluty and power, was held net liimliiii'. Til
minor, on coming of age, liled a hill I'm' anal
liartition, and a decree was made aeeniiliuglj
Mn-ntt V. Shun; 15 Cliy. \\-l\.
The clefendant, a man of weak intelleet,
fraudulently induced to execuio a i|nit-ehil
deed of certain latid to which he was eMtitkdf
heir-at-law, hut no consideratieii was jiiven f
such deed. The laiul was afterwards emivfyi
i:\ns ■ P'^>'
FltAlK AM> .MISI!i:!'i;r,Si;NTAMI«»X.
IvillCll, llliuU' U clfirei;
costs. ll",liAlin \
■ovtisiy.iii'ntnf Uiul tn
Imrii' V. 7'/i/ /■'iiciinr.'
SurihI. .'l I'hy. S'ili;
ISii'l'I'ti'i mill .SiN'IiM|,
r>i!ii.
,f an iiit'inU'il .-:\k' hi
ml, " Till' "iiil i> wvU
U'\" il'", mi'l •> ^.'I'llS.l
uTiV iM I'uViTcil witli :,
livk, wliiili will yii'U ;,
nil, :iliil tlif iviiiitiliiin
I'lital wriiuil ijriiwtli .,'.
icr U\ii'l> lit tri'i's." A
icU tiiiiU |ilawiniiiii thv
lll'l' tllll l^uit fill' S\lfl.ilic
il was lint fiiili us was
iilit fur i;.iriliMiiiii; \iiii-
iqinii till' IHiiln'itywilv
it I'l'i-l.i ill iIh' ailviitK'-
u iviMvsi'utatiniis kiviiii;
of iimttcis wliidi \\i:\\'
i to wliii-li an iiiti'iiiliu;
nil lU'C til llilVl' I'XlUlliur'l ',
i^riiiuiil liiv ulii'viii;! tlic :
Urait. 'V"ii/;.iv. /ino.,
ntilli' a \iiiity tii set iwile
yvouiiil of iiiisiv\iri.'sinta-
to it, till' (■viiU'in.'i.'tlii.'i'i.i'i
t iiossilili' : ami wIki'i: a
stati-'iiU'iits in VflatinU u]
^,^s of whii'li till' imivlia-irl
lljf liy rofi'ivmi; tn ilmll-
I aiiil ili'<-'^ lint I'liiiiisi.' t"iU
' facts turiiiu;^ mit t"W
thfv wun' n-l'ivsi-uti'il, !«;
f. " ri>i(/(.< V. y)(ii''i)i. '.11
1 iniluci-il H. tn a.lvaiicei
„,„ tlif assuiaiKT tliat t lel
iinii"U well awaiv that tli«l
„-t.."i;^cliailiiiititU, aivviH
.,1 iwaiiist liiiii. Am.'tiniU
u,n the L!i'i'Uiiil that ihU\
arnsi: out of the frauiwWnfl
lit was vi'fusnl with ci'>tsJ
jl ('liy. 4SS.
■ i-cs to iiii\ii^uli an imtrul
If fvauil ami ixtnvtiini. tlif
Isf is, to institute iiviiwj
lit, asitisraKlytliatctkcl
IviiL-o on such gri'U..a >M
I, nlitaincil in a ( "imtt
, anil feme cnvort thmu^^
J co-tenant, thc.uriifshioli'-
Ici, anil the f^'^^
laviioinliMl uiiiltT tlK l.«
In Actiastotkyxtc.
Las Uclil not ImiihuL'. I"
^ ;,ic, 1ile.lal.illh..7U.i
|,c°was nu.ilu aco.i-.u..J|
Uy. \V2\.
Ian of weak i'lt'^ll^'^^^,
■ to cNec.ao a ^f^^M
^.,^vlliel.lK■^va-^^■"«';^J
[msiilovatioii w^i;^ g'^^ J
Il was aftei-.vanl*^'""''J1
ti
ati'iii
hou
thi'
ti'K'
hiiitilV-i ill tlii'Hc suits, for vajiiililn coiisiiler-
.\|'tiT tlio i.ijwf of iiioie tlnii tiftieii
thi' il''l'''"'""' lii'oti;,'lit cji itiuriit against
^' liaiiititl-i. aliil it w^is deciiliil tliat tlic ii'i,'al
•|,lil lint passe I liy the ilei.l excil'.ti'il liy
I'lic iilaiiitills tlicieiipnii iii^titiitcil |ini-
'""'imt.'x i" ''''" '■"'"'*• *" '''''"'■'" til'' ''i'*''l I""'-
?Vil hv ik'l'''"'''^"^' '"'• tl'eatiliL! it as a coiitlMct
'"," i,;,. ;| sjiecilic ]irrf(inil:lliei' tllofi'iif : llclil,
I 'iliat tlioiij-'li tin." lilaiiititl's liaii ciiiiitins as
iivhasei's fol' value, yet tlie ilefeiiilaiit hail nil
iiitvtii *<'t asiile the ileeil he was iteeeiveil into
'.'■■litiii'.' : '""' *'"^'' '"'^ t'i|iiity liciiii; the eliler,
wMiavinu' the h';.,'al title in his favour, the i oiirt
,,,,1,1 liiit Uitci-fi'l't-' to ,i.'i\-f the jilailititt's relief;
,1 •' tliat thoui-'li the laches ami aeiiuie:-ieeiice
*( ,'li,'',U.l'ciiiiaut for so liiiin a iicriml, iiii^ht lu-
ll fur refusing him relief, \\ere he a jihiiii-
thcv were no nrounil for granting the
iilaiutitl's the reliof sought : ami the court ili.s-
LiiMil till' hill with costs. Liriiiii-iliiiif v. .I<'/t,
Ijl'liy. I'llO.
twii luiii'tgagi's on proiierty of a niarrieil wo-
jriu'.wiiteii hy her ami Inu- hiisliaml, in iiian-
Krrt|iiiri''"'.V the statute in that liehalf, were
iiiilii:Klii.'il hyher as having heeii -olitainuil l>y
fraiii. Iiraetiscilliy the plaintill' in collusion
llicliiishaiiil, anill'or want of the eviileiiei
wsary ill ei|iiity to sustain gifts
irtlie iiuii-tgagcs liiil lieeii given
cnuiik'nitiiiii, anil tile inortga
hilt fhit he couM not tell e\aelly, as
never .se|iarateil them from his ]iersoiial
liieiit ; the fact lieiiii,' that for -oine ye:
owner hail liecii )iiyiiig nearly iloiilil
i:.70
le hail
assi'ss-
IS the
e that
niiionnt. The intemlini,' lessee, however, aeee|it-
e.l tile owner's statement ilinl fXeellteil tlio
lease without makiiigaiiy rffcrenee to th 'I'liain-
lierlaill's otliie, wliei'e the exact .11111.. it rateil
on the |>ieinisis eiiiilil lia\e lit'cn useertaiiieil.
'riuM'oiirt. miller the eireuiiistanees, refusoil any
relief to the lessee oil the nroiinil of misieiiru-
sontation. Citnlis v. /Iiii'mi, "Jl ( liv. "Jl.
»rea-i'i
till. «ti!l
1 sKimti'
\ iiirsiiii agiveil with tlio owners of oil lands
I j,,f tlie imiviiaso of certain lots at stipnlateil
prirts, ami was to have a certain time to ;icee|)t.
I Till' l>un«"'>J was to form a coinpiny to Imy at
1 ailv.iiia'. To facilitate tlii.s the re.al iirices
I wiiv til lie foiiecalcil ; one of the veinlor.s was to
iKtiu' a letter luu porting to oll'erthe whole at an
[ikiinvil price wiiieh he iianieil ; the interest of
I tic "till r. whose jiiilgiiieiit in such matters jiar-
1 tits wiiuhl lie likely to rely on, was not to appear,
lailliewas til write a letter reconr.nemling the
Itniwatiiiii. The ]iroject was successful ; the
If^lllt■l■tv was hiiught, conveyeil, anil jiaiil for.
iTlc ^liarehiililers before conniletiiig the transac-
Itiiiiiliail notice that something was wrong, liut
ihfViiiTieil nut tile ]iiircliase iiotwitiistainliiig,
luiiiliiliHit iilijcct til the trinsaction until after
illiiii.khail greatly fallen in the market. The
ICi'iirt "I .Appeal (reversing the onler of the court
Iw.wiu tliis respect) liehl that it was too late
■to hsiiiiil tlie purchase ; Imt, that tiie company
|l» eiititleil tn a ilecree for payineiit of the
;t!it's prnlit, tirst against the agent liimsell,
! ill ilefault of his paying, then against the
!(& parties. —Spragge, (.'., and Mowat, \'.C.,
I.hiil-iiii/ Pilnilci'.iii (J'd <'(>■ V. Iliirif, 17
Iflv 11.'). in appeal ; S. ('. intlie (.'ourtof t'lian-
Itrt'v. h; (liy. 147.
ainieal to the I'rivy (i'ouncil it was held
|ll/i till- eiintraet must lie wholly rescinded, the
.■ iiliaiil. ami the land roconveved. .S'. ('. ,
.11. .il'. ('.'.':! I.
I ita the neynciation for a lease of real estate
litliv lity (if Tnrouto, the intended lessee asked
« iiittiiileil lessor, who had owned, occniiied,
l«iil tlie tixes .assessed on the ]iroposcd lease
The plailitiiVs sought to set .aside their purchase
of a Lrrist mill from the defeiid.aiit. on tlie ;.'riiiinil
of false re)ireseiit:itions kmni iiitrly made to them
liy the ilefcnd.int. and relied upon liv them, as
to the state of rejiair in which the mill was, and
as to the vater supply and the caineity of the
mill f ir grinding. The evidence allirming and
denying these re|iresent!itions was eipially posi-
tive and explicit on either side. It aplieared,
however, that til" ))iiriliase w.is not a hasty one ;
that the plaintill's were and )irofessed to he eoin-
petent jlldnes of the snlijeet matter, one lieillt,'a
miller and the othei' an cnginee?' ; that they
I xamineil for themselves and made eni)uiries ;
that they were more e iger to Imy tli in the de-
fciiilant w.is to sell ; and that the condiiet of tliu
Meld, th.it plaintill's w hieji ninler the eonllict of evidence
tor valiialile was .•issnnied to he the safest guide- was iiicon-
eehad heeii nuilty sisteiit with their assertion of a \\ arr;uit\-, for
he
lis
(greed that they shouM pay .•^1,000 to he let otV
the hargiin. I'lider all the facts, which are
more fully .set out in the judgment, the court
refused to set aside the contract : lint, ;is the
evidence tended to shew a want of candour on
the defeiiilantV- ji.art, and a ilisingcnuous ex-
aggeration of the condition and cajiacity of the
jiioperty, tlie hill was dismissed w itliont costs.
Il<nr;i it III. V. r'tiiiliii; 'Il Chy. 'ITu.
with
■ lle-
i,f liii fraiiil ill oht.iining them, they_ were valid they did not at lirst set it uji, Imt asked to 1
sftinitiei'. MiiHioIIiiikI v. Mnrlnj, 17 Chy. 'J!».3. relieved as a favour, and at one time it Wi
II. Ai rioN I'oK I-'ai.si'. llrii'UKsf.NTA riiiN.
1. i)f Solfini-ii.
\ ileel.iration that defend.ait falsely, deceit-
fully, iraiidulciitly, and wilfully re]iresented the
maker and eiidorser (without naming them) of
a promissory note, to lie gooil : Meld, had, on
deninrrer. for uncertainty. Xi n^iinii v. Ki.j.^m-l-,
>S ('. r. 41.
In an action for false npresentation of the
credit of a linn, the statement ciiin]ilained of was
that the iiirtners were worth from L'4(M)() to
t'.'iOOO hetweeii them, out of which they owed
det'endant and other.s t'lOOO; and the pliiiitiff
allcired that they were not " '\ I'roiii i'4()0(» to
C.'ilMH) (not adding lietwee' ' ; e.ii) ; ;inil that they
Were not then indelited lo tlje defend.iiit i'lnl
others in t' 10(10, hut in fl^OOO :— Held, that the
denial of their worth was not more extensive
than the statement, and tint it w.is sutiicieiitly
alleircd that tliev were indelited in more than
flOOO: 2. That it was sutlicient to allege tli.at
the defendant wrongfully and falsely m idc such
statements, knowing tlieiii to he f.alse. witlmufc
adiling fr.niiluhntly, for fraud is included in the
allegation : 'A. That in the declaration, set out,
remises for several years, what the taxes it apiieired that the plaiiititV had given credit to
(4i lie im the property, and the intended the tirni in (juestion. l-'mrh r \. lit njum'in, IG
*>'\ answered they were about !j70 or §7o, ! (}. II. 174.
} i
l-l
Fi:\ri) AND MISIIKPHKSKNTATION,
m. f>i' Aiiltiiirilii i,r A'ji ii'-i/.
An nj{ri'i'iiii'iil was niiulc lictwcrn |iliiiiif iir« of
til" ipiit! |i:irt, ;iiiil tile (ii'fiit W'cMtciii l!:iil«,iy,
liy thrir ;i>;i'iit, i>t' tlu' ntlur imit, liy « liicli tlic
|iliiiiitillH iiiiitr.icti'il til turiiif'li ii liiivi' i|ii:mfit_v
lit' I'lirilwiiiiil nil till' ti'i'iiiK s]HTili 'il 'I'ln' ayiri'
iiu'iit \\i\* sii.'iH'il mill mmU'iI liy tli • iihiihtillt,
mill liy (lilVii lint, ntyliii;,' liiiiisilt' ":i^iiit. " Nn
rL')iri'Mfiit,'iliiiii as to aiitlimity \\a'< xliiwu tii liavi'
lui'ii iiiaili' liy ilffi'ini.uit, lait it wa.'i iirnvcil tliat
iil'tiT til' iiiiiiii itiy liul ai'i'i'iitfil ami |iaiil fur a
lini'tiiii) of tiii'«iiiiil flii'V jifiiKi'il til lariy mit
tli'j (•(iiitrait, aiiil ilcfiMtnl tlif iilaiiitilt's in an
action iliion it liy m ttiiij,' \\\i tlu' want of their
ciiV|iiii'ato Ni'al : llilil, tliat this eviilciui' was
iiisullic'ii'iit t I siiitain an aition a;,Min«t ilitiiulant
fur falsily nini'si'iitiii:; t.i the pi liiitill's that he
liiul iiutliiirit\ til liiml tho tinniianv. Mr hnnnlil
,t >iK V. .!/-•. i/;//./;/, 17 (,». Ii. :t77. ■
A iiiT-iiin who iinhu'cs niiiitliev tiifontr.ift with
him i\* till' aiieiit of a tliinl |>arfv hy an iiiii|itali- i
tic'il assurtimi that ho is «iuh aifi'iit, in aiiHWur-
alilc til the |n'rsiiii who sn cnntracts, fur any
ilaiii i,'.s whii'li lie 111 ly sustain liy roasmi of the
assertion lii'iiii,' untrue. Anil eosts iiR'nrreil liy
sui'li tliiril iii'i-on for tlio roeovery of ilaiii:i;.'i's in
an aetiiiii a;,'aiiist the suiniosi'il inineiji il, may ho
ro(.'o\or<!(l as ihuiiagos. AV/.'.</< //( v. \Vliilthi<t<l, |
10 ( '. I'. (M. I
llefeinlant haviii^^'lieeii aiiiiointeil liy the pmiier
authority oltieial assi:,'iioo in in-mlveiioy for a
oiiunty in whieli ho was noii-resiilont, assuniiiij.'
t<i aot as siieh assi;,'iK'e, sohl the i; Is of the i
insolvent to ]ilaiiitiir, who iiur<'has„'il on ilefeii-
ilant's assertion that ho hail the rij,'lit to soil,
after full iliseussioii liotwoin the [lartios as to '
this riL;ht, an I plaiiitill' haviiiti lieon satislieil liy
ilefiiilalit's assertion, iiiaih' in the honest lielief
that he hill sueli ri;,'lit. 'I'lie sale to the plaintill'
having Ireii [iroiiouiieeil invaliil : llelil, that
ilefenilant's honest holiof in his ri;,'iit to s^ll, as
;i<siv'nee, iliil not in'oteot him from li.'.liility to
]ilMintill' it Ik; warranteil his title, nor was the
kiio\\li;ili{o on iilaintill's part of the pnssililo ilo- '
foot ill (lofoiiilaiit's title fatal to the warranty on
the sale of the uooils. lloM, also, that hail iiotli- [
inj; oeeiirred li.'yiiinl the iliseussioii of his title,
mill jilaintilt'ha'l liiiiiL,'lit u itii this full know loilj,'e.
ilefonilant woulil not have lieeii lialile ; liiit as it
was olo ir that after full ilisoussiou of the suji-
posod ilefoet of title, ihionilaiit might have in-
ilueeil jilaintili' to huy on exiiress warranty, a
new trial was i,'ranteil to as.-, riain this faet.
'I'he thiril eount of )ilaiiitiH"s ileeliriitinn allegeil
that ilefeinl lilt, liy falsely iiroteiiiling and repro-
senting himself to lie oliieial assigiiue of the in-
solvent, anil as sueli to have a lawful right aiul
title to the gnoils then in his )iossession, ami to
sell and deliver the s.-iine to [ilaintiir, indileoil
lilaintitl' to Iniy tlie same, and thereiiiion iilaintitl'
jiaid defemlant tor same, w hereas, in truth, de-
fendant was not siioli assignee, and had no right
to sell, whereby the goods were lost to }ilaintitf',
and t ikon from him hy iiroooss of law : — Held, ,
a good eount, as ii eount in oaso uimu a broach '
of warranty. Johii.ttuii v. Barki:r, 20 V. 1'. 'i'iS. i
Deelaration. that a certain vessel insured in '
the rrovineial I iisuraneo Company was sunk, and
that ilofcndaut, who w.'is the agent of the oom-
pany in oH'eeting suttlemonts mi aeeoiint of ves-
sels lost or dainagod -in eonsideration that the
plaiutili' would eontr.iot with defendant as, and ,
UHKuminK to bo, the .iKHit of the t ,|,;,„y
raise the vessi 1 for .'^It, |(M», the i|lli'st|.in ,,|'
liability to |iay sai '
sum \'
nroinisi'd the
be
■.til
>l the
''•■:'Tivi| ti,
arliitiation iiroinisi'd the |'laiiiliir„ (!,:,( ,.„
was autlioli/i'd by the eumiiany tm udr lui,, .i
said itraet as their agi'iit, at fiil|i„v, "m"!
eoiitraet was then set nut, made lnt«,.,.'„ ,|'"
|ilaiiitllls aii'l the eomii.niy, aii<l i.i-iu.,1 |,y ,|J'
defeiulant lor the eoin|iiny) ; tint tli^' il imtitf!!
entered into sneh eontraet with 'l.'fti„|,,|, ,„
and assuming tube, the au'eiit of the ,i,iii|,,.,v'
and raised the vessel; yet i|ef.iid;uit tt.i.< iJ
autliori/ed by the eoin|iaiiy to make mi' i, \uii.
trai't, and rofiisi'd to ]iiy the iilnintillHtln .s;i,i('i(('
or to refer the i|Ue.-;tiiin of liabilit" til |i,i\ ti '.
same to arbitr.itiiin, by reasmi whirenf ||„.;,|J|.
tills eniild not I'liforeo the eiuitr.irt aifuii.t (i
eomiiany, inid were •"Mn oxik'uso, \,' \>\^l
that the iilaiiitills . ;,|,|„ tn cnlnr c tliu
eontraet, not bee.iti ^iidant was imt .uui,,,.
ri/.ed to contract, ''Ut boeiiise the emitnut «,«
by parol, and, as the plaiiititis well I;ihh, ii!,t
Uliiler the em porate seal of theeoiii|iiuiv; ||,i,|
on demurrer, 1. 'I'hit their v.ns in, us',,. it ', |
the doelaratiou of dol'elidiint beiii:; tic i vnj |
ineonsistt.'nt W llll the allegatinli of Ills wvnt i.fi
authority ; •.'. 'I'hat the pira shewed im ik.f,,,,,^' I
for if defendant had been aiitliiiri/nl a> lici, |,r,.!
Hciitod, the eoiniiany eould have hoeii I'liiuinlliiL
in uipiity to alHx their sods t'l tli'' inutr.n'.l
t'lili'lii ,t lit. V. J)(iriifsiiii, 'A\ i). 11. ;i:i!;,
S. by letter infm-ined |{. iV K. that his
was a jiartner in a tiriii, and tint lie h;i.l
vanood to him C.'tOOII as his slriiM nf tho lanull
thoroof. 'riielinu ha\iiig f.iiled. iiiadi' iiii :i>,|..i|/
niont. in « liieh S. w.is preferred to thv ;iiii.,mij
of t'.'l.'iti.'i, reiiroselited as made Up of luam ;iii|
advanees to the linn. The aotiial cii.iid
vanood to the son a)i ared tn be mily tMimi:
Held, iiiitwithstaui' that S. w.is Ihuii.I td
make uood his re itinii to 1!. ainI
far as they alone ' ■eriied : hut that "tlic^
ereditors eould not ]partieipate, the ii'inviiiit*
tion being only to a iiartieiilar orcliter; iiiil.j
it should a|i|k',ir that a ]iortiiiii I'i the ihvIiim'
elaimof S. was not a debt of the Ih'iii tn hiiii, it
oonsistedof capital advaiieed tn the snii, iim!
event that portion would hi' ajipli..'! mi •
olainn. it not .ijnioaring that tlieg Is fiiiiu-.^
by them hail boon sold upnii tile faith "t tin
reproseiit.itioii to 1!. and 1\. ; hut, SinMf, f
that had ln'oii shewn to h.no been tho ca<i'. t!w
Would have had that ri^lit. Ji'niiu'/y. /(iV(„i|j
8 Chy. 4.')0.
Whore a ]iorson f.ilsely repivsoiitiiiL; him*;.
to be the agent for the owner of eortiiii liii'll
entered into a eniitraet for the sale tluTiHi, m
received a deposit on acenuiit nf the ]ii'iviiaL
money, but the volldeo eould imt nlit lii! a s|iA'il
perl'orniaiice of the cintraet : - Holil. tli.it
reinodv against the a.'.eiit for the ivtiirii '
de ■
^...-.., ..^■, ....,„ ^..^ ..,„.. ^ _
.eposit w.'s at law and that a hill fur ta
lurpose M'ouM not lie. (Iriil^iiiii v. /'•"'■•/', 1
i'hy. :i-21.
3. Ai/aiii.-il liaiik Dinrlvi-K fur /'(/-i H'l'i
The plaintitV sued defeiidaiit as ilireetur o
bank, alleging in siibstaiire that in ;i rt'imrt maj
to the shareholders in KSliii, ami a .st:iti"!K'iit |
companying it, the defendant falsely ami InU
ulently misrepresented the oiinditinUiittln.'li.U
over-estimating the assets and uu'li;r-i.'.stiw:it)
I'|;AI I) AND MlsiiKI'lMlSKNlArHiN,
iiiiito, tUo u'Viv-iiti
1,1, 111 111' tho linn til liiiii.
:nil,\niit.i>'ty;'-''r^a
,tr;u't: HcM. tlut f
■ut fill- tli>-' '■'■»"■" "'
1, ii-|l,ilitii'!<. tlitTiliy iniliiciii>{ cli'l'cinl.iiit t(<
|»lllVf it wil'l"' '""' til |llirr|l.Ml Ktili'k ; llcltl,
II till' i'viili'iii'i^ Hft (lut ill till' I' IMC, I. 'I'liivt
"I" , fl-.,, ||<> I'viill'IU''' lit' fl';ill(l •'llltiiirllt tci
nruiiMiii till' iU'tiiiii tliut is, ut' l',il«.' xtiitiiiu'iitH
:i,imu«lv maiU' I'V clct'i'liil.iut with ;i I'l'uinliilriit
mt lit. I'l"' •"'»<"i''' "' '!"' "'i""l n'ljiiiri'il tn
411*1.1111 *ii''l' •' >'li'"'K*' i'"M.<iili'ri'il, mil) fill! luitliii-
niii't rvvii'«i'il : -■ 'l'l>"t tlu' i't'|iiii't muk not a
^.lin*iit:itiiiii "itiiiii ' '■ ■'^- I'. •'. t'. -H. M, Hi, HI)
j,iiini|i'.ii''' i' '" ''^' ■■'i.i^'"''' liy lift' iiiliiiit. ."1.
T],,til llic nliitcmi'iitK «»■•'»' l.il-i' mill t'l'au'liili'iit,
,l,liii.l,iiit «iiiil'l '"' liii'ilt'. iiltliiiiiL;li tlii'y wt'i't'
mili' tiitln'!<tiii'kliiilili'i'^. I'lirtliL'V w.'i'i' iiitciiiti'il
jiiiliw' fill' liii'ili'' iiil'i'i'iiiiiti'iii. /'''/•/'■ (• y. .)/'■•
4. /V.ii.v I'f h'i'iUi'l oii'l M'lKi'i'in'i viitiithiii.
In lUiictiiiii till' iiioiii'V liiiil mill ri'L'eivc'iI iij^niiist
I Ml :itt"i'iii'yi 111-' i''>'i""t »*i't up iiH iiii aiLswcr til
I 111! ilii"'. '!'■'' ''"■' jii'lv'i'i^'iit iiiiili-'r w liii'li tliii
I j„,.,n.v w.^iiilli'ttuil Wits traiiiliiKiilly rmil'i'.sNiiil
] In till' ili'l'cinlant ill lluit raiiNL' tn iIk' client.
liV .i«n V. K'niii, hni. 4:!!l.
I A. ••"Ill !'■ i'Xi'li:ii">,'i'il Imrxi-'-*! t'iiL'li t:iUiii'.; tliiit
1(1 thi-iitin'r. iiiii' "• 'A'^^''^' -■^' " ""'•' '•"' •■' ililli'i'-
Idiivil vuliii' ill till' i'\i'li:iii;;t', A. miIiI tlio linrsc
|ke;nt I'liiiii li. iiliiiii-'t iiiiiiii'iliitL'ly ; mi'l iil'tiT
|li:i'k.riif twii yi.':li'fi, iliil'iii.i; \\ iiifli iintiiiii;,' illi-
|»ar< 111 iiftvt' lict'ii iliiiu' liy I'illa'i' iiarl>, If. in
l<i)f,luiioiitlii» imtiiliy A. ; IKIil, tliiit I'., niiilil
l»i!sct up It'* ii liil'i'iK'i' tliiit tlu' Imrsi' 111' I'l'i'uivi.'il
Iti! iiiisiiiiiul, :iltliiiiii.'li A. !i;iil iloclii'Lil liiiiitrui'
Ifeiuiaillt ami KK'Uiisli iit tliu tiiiu' nt' s:ilc, Hull
X^J.mw, ;ii). .S. .•(11.
■ Hilil.tliat tho iililii.'iii' lit a luiinl wliirli, liy tlii'
Ipliiiitili's invii >la'\viiij;, i.s I'loarly I'nuululi'iit,
Ijtvl ii"t jiloail I'raiiil to jirovfiit a ii'inxury mi
111 >„■;//. V. mitrirli, S (,t. H. ."i,S!l.
WIriv t'rauil iii iiliji'i'toil till' ilistiiK'tiiiii lio-
Ifivii suali'il iiistruiiiuiits miil .siiiiiiU' cniitnuts
lulliivailiiotliiii^'. //'.
Ill ,111 ;ii.'fiiiii tor I'alls mi stnrk, ii plt'ii that
k'eli'lillt lii'C.mit' liiilili'l' 111' till' filiai'fs liy siili-
H'ti'iii, anil was indiici'il tu Ih'cuiui.' sn hy tho
hiiil"! tliL' I'liiniiaiiy, ami that ho h:is rocoivoil
iKik'lit fniiii, ami litis rojnuliatoil tho shares :
\-Mi\, giiiiil, 111! iloiiiiii'i'or. /'riiriiiriiil /ii.iiir-
■ V'l. V. Ilciiini if III.; I'l'iifiiii-'iiil /lis!' I'll iifi
%\:I)iiirij<'lir, !)l'. 1". -JSt;.
i A sWrilT having; iiiiulo a rotiiru tn a writ nf li.
I "liiiuls (111 liaiiil t'lir want ut Imyors, " ami
iviii!; siilisi'i|iii.'iitly, iiiiilor .'i writ nf vouilitinni
Hitos ill tilt' same .suit, .snM tho lainls iimloi a
U'liii:: oiiiitnu't, nil wliioli writ ut \oiiilitimii
1>i|i,i*1k' inaik' a rutuni uf " no l.iinls ;" a jiloa
1 tijUitiilile groiiiiils to a iloolaratimi against
!ur a false return, that tho plaiiititf inis-
,.t!Liitiil til the shoriir that tho laiuls lovioil
l»trf the huiils of tho oxoeiitiun ilolitor: -
'. 1" lie nil answur to tho aotimi. I'uffi rMnu
inuaxK, \\v. I', 'tm.
IWaratiim against a shorill' fur faisoly oorti-
"ijl that there wore no oxocutimis against tho
Hilsiii (iiie H. riea, on oiiuitalilo grounds, in
telle, that the [ilaiiititts' agent duly autlior-
J ill that behalf, late in the day, and after
Itfi-iiiliiiit's iitliee wa.s closed, aii]iliod to do-
tot's clerk fur the certificate on the street ;
I. -.74
th U tlio olork lri\ ill),' drolilluil to r»'tlU'il to thv
otiieo to liiakotho lei|llisitt' so.U'oh. tho plaiuMdtk'
agent tlioii ri>i>i'oHoiii''il to hiiii tli.tt tho |<ltiHtirt'it
woi'o aw.iro of lluir own kiiowloilno tliat iIkto
wore no oxoiiitiiiiis, and wuuld take tho risk of
there Ix'iiii; any, and wuiilu tint hold di.'i'oiiilniit
roH|ioii-<ililo if siioli oertilii'.ae should |iriivo
iliitrili', ot whioh
111
'lit said thoro \Vi»i»
no dinger wliatovor ; and tlio olork tlr I'oUiinU
.signed the oortilieato at the amnt'.s lo (iioitt, in
roliaiii'o solely U|ion siieh reiiir-eiit itimis. and
w ithiiiit si'irohing ill his duty ioi|iiiied, and un-
der the Uelief indllied hy itiuh rol'I'oselit.ltiuU.t
that there were no eXoMilioiis, and uifui llie
undii'.-it. Hiding afotosaid, tlr.it im rosj.undl'itity
kIiouIiI uttai'li t 1 ilol'ondmit : Hold, mi doniui'-
ret', a good defouio, fur it sliewod tint the
certitioate was olit linod liy tho false ro|>reseiiti\'
tioli of the plaint ill''.' igeiit in idc liy liini at tho
time, for whioh the plaiiitill's were rosp ui-'ilile,
Ciilniiiiil Si'i'ii/iii' ^ <;,. V. T'i;il'ii; -Ml). 15. ;{7t'>.
rartii'iil 'iM will he urdorod of the fraud
oliargi'd in a plea to ii declaration, allo'^iiiu tho
lu'oaoh of an a;,'reenii'iit. It is siilliiicnt it the
allidavit on whioh the application is fuiindod, in
made hy the attorney on the ro.ord. />i»i;i v.
MrKii'l, r, I', i;. •li;.-.. f. I,. (•InniU. halton,
(.'. r. .1' /'.
I'l, Ollii r ( 'iiMi .^,
I'l case for fr.iiidiilont niisreiirosoutitiun, tho
Statute of Liinit.itions liogins to run from tho
time of the inisropres 'utatimi, imt froin the time
of its disiovory liy the pliiintill, loir from the
time ! ii it damages aoeriiod. /'ic/- ■•.,// v. ./,),•<•(■.«,
.". ( ). .>. (I'.M.
A shoriir cannot inaiiitain an uoti.iii on tho
case as for a fr.iuiliiloiit ropio.soiitatiuii, when,
having seized gomls on an exooiitiun uf a third
party, he i.s afterwards instructed Ky defoiidaiit
to seize them on his execution, altlniiiah on an
aihorse cl.iini licing set uji, the pl.iiiitil!' in the
' lir.st writ withdrew his cxi.'cutiun, and the dofoll-
; daiit refuses either to witlidr.iw his, or tu indem-
nify tho sheliir, and the adverse claiiiiant atter-
ward.s piosecuti's the shoritt', and lecuvers fur tho
illegal .seizure and dotontimi. Jun-is v. The
, Ciiiiiiiii i-fiiii till III.; f> (>. s. ;!;t7.
'' (^hiare, can a misrepreseiitatiuu ,i\uid a emi-
tract witiiuut fraud. /.umi v. S/n nn r, 'A »,».
I H. Iiiii.
I An action will not lie for knowingly prusoen-
tiiig a false claim liefore the heir and devisee
ooiiiinission, to the iilaintill's injury, and with
i '.now lodge of his claiiii. OncM., in IS.'i'.t, hav-
ing a right of piirohaso of a lot from the oruwii,
uiortg.igod to |)eH. to soeiire ii.iyniont of a sum
liy instalinonts, the last of which wuuld fall duo
in IS4!). Siioii after this mortgage, M. gave to
i 15. a lioiiil for a deed, on certain conditions to ho
] fiillillod liy 15., who took possession. In IS.'iU,
j the plaiiitilV w eiit in under an agroenioiit for
j purcliase from 15., who had not fullilled tho ciin-
' ditiuns of his lioiid. In 1S-jI , the defondaiit touk
an as.sigiimeiit uf |)eI5.'s niurtgago, and in the
, same year ho claimed liefure the heir and devi.sec
commission, making the usual allidavit of ignor-
ance of any adverse claim, and olitaiiioil a patent.
, The plaintitt tlureupmi lirought an action on the
; case, alleging in iloj lirst and second counts that
' the defendant nialieioiisiy contriving and intend-
, -1 /I!
! ,- '■ .*'
i:.
FUAri) AND -MlSllJ:PrvESEXTATI<)X.
iiiu til injure liiiii, rc-prusfiiti'il liiinsi'lf iis assiLini'c
(if tliu original iiniiiiiiL'o ot tlio ■•iip\v!i and tl.iiiiic'd
iis siii'li liftnvf thf (■(imiiiissidii, ;iiiil in urdur to
dft'ivuid t'.K' I'laintilV, and not liaviny hiiiisidf
;iny Mull IdUiidid chiini, and kiiowin;,' the jiiain-
tiii's claim, niadu atliilavit that lu- was nut av.ari:
<>( any advorso claim, and pruciu'cd liis own
claim to lie allii«cd -wlicriOiy, iVc. : - Held, that
im the evidence the allc<;atiiinM were nut su)!-
IMivted ; and that admittin;4 them all to he true,
nil nrci\ind (if action wmdil lie >lie\vii. Slih I'l.i v.
I),)ll„<iiihri, ]•_' (,». I!. :irt(i.
The lii-st count of the declaration .nllegid that
the iilaintill waH an hotel kueiier at Aiugara
Falls, and furnished guides and dresses to per-
sons going under tlio falls, and liy consent of the
government, had a stairway for visitors down
the hank of the river ; that defendants also had
a stairway for the same iiMrimse ; that the iilaiu-
titl's stairway had liecn liurued down, and while
lie was rijiiiiiiding it, the defendants, contriving
to injury him, falsely and maliciously, and w ith-
(lUt reasonahle or [irolialile cause, re[iresentcd to
the attorney -general that the land on which the
]ilaintill"s stairway was huilt (w Inch helonged to
the crown) was necessary for military jiuriioses,
and that the land on top of the hank was le-
(|uired for a highwiiy, and had so heen used for
many years liy license from the crow n, and that
the (ilaintill' had vrongfldly intruded on said
land, and had licgun to excavate and destroy
the elitf at the top of the hank, reducing the
w idth of the road ; and tiierehy the defendants
indiujcd the attorncygeneral to permit the Use
of his name in tiling an information in chancery
to restrain the plaintiH', and olit.iiucd an injunc-
tion against the plaintill' to re-train him Irom
interfering with the hank ; whereliy the iilainlill
was delayed iu completir.g his stairway until he
(ihtained a license fi'om the crown so to do, and
lost the prolits of his husiness, &e. The second
count alleged that the jilaintitl and defendants
were tioth engaged in furnishing refl'eshments
and dresses to persons wishing lo go under the
falls : that there was a certain pulilic stairwa.y
for such peisons down the hank ; that the de-
fendants intending to injure the plaintill, fadsely
and maliciously, and without reasonahle or ]iro-
lialile cause, represented to the puhlic w ishing
to go down the stairway that they had a right
to previ nt thcni, and forliadc and refused to
allow persons wearing dresses furnished hy the
plaintill' to pass (hiwn, hy reason whereof hun-
dreds of (lersons who would have procureil
dresses from the plaintill', were forced and
(ihliged to get their dresses fi'om the defendants,
and the jilaintill' lost the jin tits of hiring his
dresses and selling refreshments, iVc. ;--Helil,
<in dennirrcr, that lioth cc unts were had ; for as
to the tirst no action would lie so long as the
decree in cipiity remained in force, notw ith.->t in-
ding the sidisei|iient license from the eiow n :
and as to the second, it charged no violation of
any right of the jilaintill, nor the maliciously
procurnig the hreach of any contr.ict w ith him.
and it therefore shewed no cause of action.
Dii'-U V. JiiiriKl/ ./ oL, -Jii (.) 1'.. lO'.l.
'l"he plaintill' declared that defendant, hy
falsely ]>rctcnding and reprcsciiting to the plain-
titi', that if the ])laintill' would go with his vessel
to Willie's hiiy, for the j.urposc of carrying a
load of defenilant's Wdod thence to ('., he would
he ahle to a[iiiroach the shore and load the wood
:i;;a;ii.t|
on his vessel with .scows, indue.] tin. ,,i,.,j||,-,
to go with his vessel to said hay fortli.it •'un ■''
and to incur great expense,' i\:c.. v.-litixa,"!'!' '
depth of water, &.<:., Mas not .sulli,i,.||t ^- .'^
H(dd, on n:.ition in arrest of juilmih.iit.'i ■n".
the- ih'clar.ition w,is sutticient, witliiiiit'avi.in',
that defendant knew of the want nt W'ti ■ •!'
'I'hat it sutlicicntly appeared that <lH'fiiiiaht'i,T
duced the plaintill' to go for llie weml i,y : ^'
false reiirescntation. though no cuiitiact tciIiuTv
was stated. J/nrri ;/ y, Wu'ldn , lijo |; -ji ■
\\. ohtained from P. an order lor e.'iO, t\\\;.,.i
was paidi on a statement that he c.mM uruj.l',,
him for felony : - Meld, recoveralilc mi ;iii -utin' ;
hrought therefor. /'fisn, y. IT. ./,/,(;(■ '"
Although as a general do./trii f | ,„. ,, ,,^. ,
who makes a false statement, knowiii' it i,, ','.
such, which is acted iijion hy aiiotluM', m.iv '1
held li.dih- for any injury thus eause.l.u.tHl,,,!
a jiarty, in laying an iiifoniiatioii ln-tnren ].„]„,,
magistrate, had given an iucorivet vefsinn ,',i .]|' ■
statement made hy him to tli, ilet'eiiilaii' m.ll
..•auscd the iilaintiM's arre.st, it «a> lirM tlat ,il,|
ai/tion therel'or could not he m.-iiut.-an,.
the defendant. S/mr/.--^ y. ./..,,y,/,_ ye p i^,.
The defendant insured his dwellin.r ||,,||j^..,|| J
contents in a mutmd insur.ince cuiii|i'aiiv. st.-itin*
in his ajiiilication that he was tiic ,.Hni.V..f tiijl
jiroperty hy deed in fee. The pnipeity \r.uT
destroyed hy lire, defendant sWhiv til till' m'hJ
facts in his affidavit of claim, .■uid (iht.iiiie,! s;i|(]
from the plaint. H's in si'ttleiinut. 'I'lir i.Liint'fJ
suhseijui'iitly discovered that tlie piniKitv »;«
not owned Ity the defendant, hut liv his t.ithj
and they threatened to ariv-t iletcinhiiit :ii:J
]iroscciite him for ohtainiiig the iii'.ii.'V I'.'ii.
him under false pret •nces and lur p-ijim : am
defeiiil.iiu- to avoid the arrest ami ]iroM.'oiiti„ig
gave the plaintiffs a note hir.-<7(«): ll.i.i, ti,.,
the plaintill's could not recover on '!iu imtc. id
in the aoseiicc of the poliey, wliidi Ha< imt im
duced ill evideiice, it was not slieuu tli.it tlii'iiiia
rejiresentation as to title avoidcil ir, mi iititloj
the plaintill's to recover hack the iuMuaiioj
money, and therefore no eonsiilcratimi ii|ii'ei:'
hut that of .avoiiUng the ai'rest aii-l ipriwtiili
Held, .also, that foi the same leasmi ilu. iiluntil
could not leeocer on the eiinniinii loiiiits
iiiiiiiey p.aid under .a mistake or iiusreiire.H'iit.uiii
of fact ; hilt a new trial was gniiili'il t" I'liali
plaintills to shew the facts umw tiiHv. (/iia-
as to the etl'ect upon the \aliility "I tlu-iint
of the thleat^ to prosecute deiemiaiit, il it
heen shewn that the plaintills were tiititki.
recover the nmiiey lor which it \va.- ;'ivt'li. iTl
Ciniiulti I'liiUii' rs M iilihi! Iii.^ni-iiiti; I'u.y, ll'.'-ti
LT) C. 1'. I.
defendants gav
stating that they had received ami luMi.iitli
iC. II. & < 'o. 's) aceiiunt ,"(l(l hitsluls iif viii
I'l'.intitl relying upon this receipt. aiiiltlnR[i
selitations made hy ( '. II. \ Co., |iiiiili;is..l
the .s:iid ('. H. &.\'i>. the .aippu.-^d M)U:>
of wheat, and took an assigiiiaeiit nl the
receipt as evidence of his piircliiisc, iiinlasaiitl
rity to defendants to deli\el' the same t^i pL
titf. Ill fact, however, the ilcfemlaiii.s .it
(late of the receijit had only I'rccivcil fninc
hushels on account of ('. II. it Cn. : IKM.
dcfenihmts h.iving given their iviript l"r
hushels of whe.it. weri estiip|iel I'rmu .si'ttiii!
that thev had not tit the date tlioivnf the
a receipt tn ('. II. k I'j
-iiidurtil the \ilaiiitiil
liiiy t'ortliiit \iuv\»i*i',
l»u, iVc. v,lniv;in tlie
iii>t suliiiii.-ut, Xc. :--
<if iiiilgmciit, I. Tint
ii'ut, witliiiut avuvriiit
111! WiUlt lit wiittr ; 1
ivil that ilfti-uilimt in-
for lliL' wniiil l.y ii\>
^li 11(1 uiiutriict tiHjMiv
'iillit,-:. It; (J. U. .'lOS. '
I M'.'.lcr lor C.'O, iwlii.'ii
thilt llLM-nllM liri.M.rlU.-
L'lMivi'nii'K' "II ;m Hiti'iii
„ V. If.;;:/, C.C. I'.Ti.
(In.'tvin.' ni l,.w,i ].,',«>
lU'iit, kiiHwiiig it I'l In-
Mill l>y luiiitliuv, may V-
V tlm.s o:uirn-il, yi'twlnie
ni-iiiatiiiii ln'tiirra jmliu'l
II iui'iinvi't vi'vsiiiii "\ tlif]
II til til.' lU'Icinlaiit, ;m.ll
ivst, it Uii> lu'U tli:it all I
it 111' iiiaiutaiiR'il ;i:;:iiH»t|
, V. ./.i.'.v,/,, 7 C. I', ii',1.
..,1 lii> ihvL'Uiiiy Imlisi.' iiull
isuniiH'v i/unniaiiy, statinjl
liL' was t'liL iiwiioriii t!ie|
:oL'. 'I'Ih' \iriiiii.'ity lnhi^
iiilant swim.' tn tlu'
claim. I'.iiil iilitaini'il^'iO
„,'ttl.'iiii-'iit. 'nie iilaiii-i '
L'll that tlu' iivojiurty v,:i
t'uiulaiit, liiit liy li'.s t;;;L.;
to iM'ivst lU'tiiiiliiiit ;iii^
itaiuiii.i:- Ui.' iiiui.'y l»t
:ii(.','s ami liiv 1' ■I'jiii'y ■
[in.' ,'UTcsl ami 111"*'-'"""'
nntc iiirSTlM): U.liUi.i
vtcii\'<.'i' "" ''•''-■ ""'^'' ''^
lii'V. w liii--h was imt yr-
s lint sIk'W 11 tiiat till.' Ui!^
■ ' avoiik'il it. Ill- I'lititlof
vi.'V Ikk'U the iiwuaiicl
usitk'iatiiiii ainiui:
ic an-t'st aiiiliivii.-1'i'iU'.'i
saiiiu voasiui till' l'l;''i""l
in; I'liiiiuii'H 'iiiiiitNi^ll
;takL'iii'misri.'iii'eH'i!t.iti9
•il wa.s ijraiili'il to I'liaj
'lai'ts luinv tally. H\y4
,1 tlu^ valiility 111 tlu'Ui*
,.„tc ili'ti'iiilaat. 11 U li^
pl.lilltiils Wi'R'l'lltUl""
., uln.'li itM'^^-'i^'"',
,//„.„.,',l».-. '"-v. Il'^'
VC.'cilit til f. 11. i^'l
...ivi'ilamlli'M""''*
tu
I'lU'i'ivi
tint
|i t
,"(10
liv.Mulsi.l \'i"i^
tity
tC"'
t.i lie
r.;a'ilit
his TO'i'lliV. :'"'
H.\ >"'• I'
lil.iivii
bv'lin
, tho
ail a;
U'l"
\ :m 1.11'
his
ilL'iivi.'r
ilT,
si-Miiii II' '
inti'.'liaM-.
il tilt
till' S.IIIU' til I'l
iK'tViiiliiiit" 'it
,U.iito''
,1 only iTci'ivi'i
It I.'
liivi'ii
11. Xt'
tlK'ir II
lU
L'ijit
stiipl'
tl'iilU
till I
ii'ttiiiJ
■ HiAl'D ANT) MlslIKPl^ESENTATroX. l.".
,f ^vlii'i'.t irt'iitioiK'il tlitTfin in stnrc fori'. H. il'iinaiic.-i thi' costs of this unsuccessful action
He
assiiim'i
111' ilat.' tlii'K"! tlH'iii^
.H.H
also, that fioiii the I viilcncc it \v
1 that the ilet'emlaiits .j;a\e this
se of eii.'ililini,'
y means thereof to sell the ainonnt
lis to
Hehl, that huc
sts
llll
not
lie recovei'eil
.1/.
/'/ V
.V<
i' .'/.. -JO (}. I!. .")40.
tiiC. H. it Co. for the iiiii'i
I'htiiitiiriieiiiL; iiiileliteil to ilefendant on a note
,t therein ineiitioiicil to luiy |ier.s(i
■jlii'iii
!)V sii
tliov oU'ereil the
line for sale,
am
1 th
lliuiciit 1
rivitv wa
iitaiutitfaiii
■i estalili.sheil liet
ill]
\\een
feiiilaiits to eiialile liiiii to sue for
for .'^lOliaiul 111
him for l!'().
iiri-eil, was sol
ill
lelits, execiiteil a iiioi'l^age to
in saiil inorti.'ai:e eniii-
iml after iiaviiieiit
if tl
y 1
il.iint
ill, ihiiiai.'e
lie sust.'iiiie
,11
IV re:
111 of their (de-
left the
le jirior eneiiiiiliraiii'es tinreoi
then
w.is
of ••<;i(), to 1)0
ai.-|ii
lU'feiiilimt's
ailauts I
false reiireseiitatioii.
//..//.,
.'( y..'iiiii-"iii
iimrtgane, on inyiiiciit of which
ilcl'i
iiilant
,/ II C. I'. liOil
' execu
te'il
a iliscli:!r
ge th
icieiiilanr
lii'leiu
liinia' rt'ceii
lauts, a r.iihvay conn
;ave ware-
its to on
e H. for
■moliarn
•i! Ill
store liir Iniii, oi
I the faith of which the
seiiuently sued plaiiitill" iii the division t '
for a lialanee on said note and hookdelits,
recovi'i-eil the sum of
fendaiit for fraud,
suli-
imrt
laintilf now sues de
111 (IcteliilaiiL s ii.'ivin.' sue
ill's accc)iteil and paid Mils dr.iwn ujiou
hini for said
note
hat when said iiioi't-
uiii »y
liv H.
there lie
i km'
iniii
tlicv sued detelii
daiits
il ileucienev ■
or a lal
.f i'lU'
[.'ige was given, defemh-int ai
to I'lve 111! ;
111
,\ note Vi'lieii the inortLj
;atisiied : - Held,
liilc'iit relirc'
■iitation mai
le liv them, which '• I >eelar,itiiin not timved in fact;
Hi
ihrt' knew wi
111
tl
le course o
f trade lie "f mortgaite not liciiig under seal, not
seliarg'j
an e
I'll 111
i.lfllOl'
liy jiersons i
leali
ith r.
Til.
That if the declaration had lieen iirov
stop
t^hewed defendants knew such receijits I
Ham
tilf
('Oil
Id
I'
nut, alter failiu'' in the division
,-ercl'lllllllllllll.^
l<iii, aiii
Ivus
dti
itaiii advances of moiiev
Court suit, niaiiitaiii tl
le action.
n
'.'/'
■/.,
V.
1 that they soliietimes gave rccei]its to , ^("^'ll, 1-1 <' !'• -('>.
B,iiii'tiii'.ir ill advanee, on heing told that it was Tlio deelaratioi; alleged that d
idaut.
« tlie way
hut 1
tl
istake in oiiestion agent for the iilaintiU's
] v.'.'is lint shewn ;
'I
Held, that there wa.s c
that a \ ei'diet I'ortlie 1
iidertook to e
ln'tiim'i!
Ijasa.i^iitii thejury,
iteitilVs must lie allowed to stand, altliougli
tti'V iiiiL'lit well have found otherwise. Mr/.aiii
,!,',! k'TIi liiill'iilixim/ Liih-r Jlarnii I!. W. C..,,
yii 1!. 'JTO. "See .V. (.'. •-':! (.». I!. 4t.S.
lirtl.iratiiiii st.itcil that one A. having recovered
|jinii:;im.'iit against 1!. i^v B. his attorney (defeii-
lta,Mli--li\'^''^'' ti. t'a. to plaintilf as slieritl',
liiirediii^' liiiii to levy on certain goods in the
|ii*>ir<siiiii ef one liuriis, as the ..;oiiilsol 11. & I!.,
Iftottiie likiutill' helieving .said representation to
I'xtriii'. levied ami sold the said g.ioils ; and that
.. iiliiintilli aitcrwards >uil'ereil damage in an
litti.iiilii'iiii.L'lit liy Burns the owner of the goods.
Illeiiiiin'er. that dcfeiidant acting a.s an attorney,
iiliiitlialilc under the circuiiistances stated, and
itthisaetimi will lie at all, it should lie against
the liliiiitill' ill the execution : Held, on
niiirrcr, that it heiiig exjiressly stated that ■
itre was a false representation, and that the
ikit ilirocted the plaintill' to levy, and
igmaile liiiu a ui'Uidatory or agent for taking
L'liiils, that i|Uiiad the trespass in seizing
i.ltr the authnrity of Humphrey r. I'ratt, .">
ill. N. 1!. I.")-1), the declaration was gund :
Wjifei, that (defendant) honestly lielieved the
■;iiiiils lielmiged to H. i'l; 1>., and made such
jtiiKM.'iitatiiiii Hilly for the purpose of assisting
fee iilaiiitilV in the execution of the writ : -
peH, liiiil, as iiiit lieiiig a traverse of any par-
bhr fact, ami ail answer merely to the false
Jtpn'si.'iititiiiii, hut not to the direction to levy,
■hidi is the suhstaiice of the complaint. J/m/i/iV
\.h.«<'i»», 1-^-'. 1*. •)•■>■').
DdViiil,iiit.s .siilil tu plaintill' and received the
pt'iase iiiiuiey fur some wheat, which they
h'tooiiteil tn he their own, liut wliicli lielimgcd
)"!it 11., wlin nhtaiiied it from the r.iihvay eniii-
. ill whiise cars it wa.s. The plaiiititi' sued
iiijiany fur delivering it to 1!., and the
Himi w,is referred and decided against him,
fii'iiilaiits ht'iiig jire.sent at the arliitration, liut
»is imt shewn that they were otherwi.se eon-
"1 ill the suit. The plaintill then siud
|BtiiiUiit3 fur the deceit, elaimiiig aa siiecial
-'rtain inonevs for them on certain roads
xiielii
am
rii
il fr.iudiileiitly rep
irt
es : tliat lie taiscly ami rr.'iuii
scute I t.i tlieiii tli-'it he li;id cause.l work to In
done ; .iiid in eolliisiiin with the persons alleged
to have done such wor!;, and liy drawing false
orders in their favour eoiit.iining such reiueseii-
titioiis. caused a certain sum to he dr.-iwn out of
the plaiiitill's' tre.'isUi'V : whereas, the\\(irk h.-id
not liccii done, and pi lintiti's thus lost the money.
Comiiioii counts were added, it ajipeared that
the I'orporation, liy one resolution, directed that
.-^nOi) should he granted to each councillor, dc-
fcndaut lieiiig one. to lie hv them exjiended on
the roads ; aiid liy aunther," tli.it .'-dOO should lie
placed to the credit of each eouncillor, to he ex-
p.aided hy them on tlu; i'o:;ds and liridges in
their respective divisions. This was in accord-
ance with an est.'ililislied practiee, liy which the
councillor.s superintended the laying out of mo-
neys in their resiiective divisions. Defendant
granted sever;',l orders on the treasurer to dilt'er-
eiit persons as for "work done, " which were
p.'iid, and it jipiieare 1 that such work, //hiiiijIi
riiiitriiftcil I'm; had not then lieeii performed.
There was no I'videiiee, however, of any fraud or
eoliiision on dei'endants' part, or of any gain to
himself, exeeiit the usual charge to the corimra-
tion of th'.' eoiiimission on siuli moneys ;is ex-
pended. The jury haviiii,' found for the plaiiitill's,
on a direction that mor.il fr.iiid was iiece.s.s.iry to
sustain the action: Held, that though givii'g
iirder.i fiilse in f:ict might i':iise a jirini:'! f;ieie case,
yet the proof that the work had lieeii contracted
for leliutted the eh irge of fniud. A ii(!W trial
was therefore gr:iiited v.itliout costs. YVc- (.'nr-
li-irntini III' th- '/'i)irii.</i!ji iif (.'lull llll III v. Iliiii''iiiv,
T, (,). 15. .ViO.
The deelaiMtion alleged th:it the defi'iid:uit
before the eommitting of the gi'iev.ince, iVc, w :is
a carrier and express agent : tli:it the plaintitl'
delivered to one W, a sum of money to lie handed
to defendant, to lie e:u'ried and delivered to S.,
and that deleiuhint f:ilsely and fiaiidulcntly rep-
resented to the plaintill' that \N'. had delivered
s:iid money to him, whcreliy the plaintill wa.s
s:itistieil of the fiiet, where:is in truth it had not
lieeii so delivered, but aiipropriated by \V. to
1
)( :
FliAUD AND ^rTSREPEESENTATIOX.
1
iNIl
liis oM'ii iiSL' ; anil by reasdii (if such falie and
frauduloiit ic]in'neiitation \V. dlitaiiicd tiiiio to
ami iliil alisniiid, and the ](laintitr lust said
nmnfy, wliicli he wonld (ptiifi'visi,' liavo rufovdiu'd
ffnni \V. : Held, (in dumnrm', that a snlticii;nt
cause rif aetiiin was sliewn : that it was unneces-
Kary to allene that dct'eui'int knew the reliresen-
tations to he false, the words /'k/.v./// iind/Vin"//'-
I'lifli/ ))ein_!.' ei|uivalent to hiiniriiiiihi ; or that
defendant was a earlier at the time when, itc,
for the;^i'onnil of action heiuj^ the fraud, liisiieing
a carrier \\ as iiumateri.d. Vi'ini'/ \. Ifc/.i /■-•, '.V2
(,>. 1!. ;wr..
The jilaintifl' ]iurchaseil a steam vessel from
defendant on tlie fiiitii, as lie alleged, hut which
defendant denied, of certain reiiresentations
made liy defendant as t<i her [lowcr and eaji.a-
liility ; and, after some discussion, a document
calleil a hill of sale, hut n<it under seal, the ves-
sel lieing unregistercil, was executeil. Tins
liurely stated that the defendant, in consider-
ation iif s;!,(l()(), SI. Id and assigned the vessel to
iilainlill'. \\ itii a warranty only as to title. The
boat did not answer tlu' alleged representations
as to jiower and cajialulity, hut no fraiul was
ehaigeil :igainst defendant. Tile jilaintiir having
lirouglit an .action fora false representation, and
also fill- hie:ich of warranty : Held, that the
plaintiU' could not recover as for a false repre-
sentation, there heilig no imputation of fraud :
that his remedy, if at ;i!l, must he for hivaeli of
warr.'uily : ;iiid tliat altliougli the doeiinient con-
tained only a warranty ;;s to title, still it wa.s a
(|Uestion lor the jury, U]ion the wiiole evidence,
whether the defendant hail in fad intended to
warrant her power and cijialiility, or whether
the dociiiiieiit contained ilie whole eontr.aet.
Brnnitt V. Tn;/',,/, 1'4 ('. I'. oC/.".
Declaration, that the defendant and one T,.
did unlawfully and fraudulently comhine, eoii-
S])ire, and agree together to defraud the iile.intill'
of S|(M>, and in jiursiiance and ttirtheranee of
said comhination and eons]iiraev, the said L. did
liroeure and imluee the plaintiiV to lend him
!^1(H) on his note, and in pursuance and hy means
of such conihination and agreement the said L.
procured the said .'rlOO from the phiintiti', with
out any intention uf re-]iaying the same, and
with intent to defraud the ]ilaiiitili', wherchy
the idaintitl' lost the said ."'lOO: Held, iusulti-
eieiit on deinurrer for not sliewiiig what reiire-
sentations Were made or means used, or \\ hat
the facts «ore which constituted the allcgeil
fraud or e-iuse of action. Arai'^trijit'i \. Liinii,
;U (,». I!. (i-J(l.
aid
]II. CiiMi'iaiMisK oii Si:rri.i:Mi:N r iiv l-'it.vi n.
The relationship of a medical mail to his patient
is one of trust and eoiiliilenee, and he must .let
houa tide in advising hini, or any settlement
made through him, or in coiiseipieiieo of advice
given mala tide, will he set aside. /i'</»v v.
TIk <;ri<ii'l TriKil: lt>ili"-'i;, C-j., hi ('. 1'. "(Ol).
It is llie duty of a itarty getting ii)) that a
settlement of a I'laim foi' iniuries had been ob-
tained liy misrepresentation to establish not only
tliat the settlement has bt^en so obtained ; but
also, that the amount jiaid is inadeipiate eoni-
pensation for such injuries ; and where there Mils
an I'litire failure of evidence on this latter point,
a new trial was granted on payment of costs, /It.
I The plaintiff having sued ii]i(iii a m.ti
; on the common counts for gonds snlil iui,i i
livered, itc., defendant pleaded to tlic \\\,'\,
declaration that the goods weri' sriM on .fl'/
: and before it had exiiired the liliiiiitilf na ■!!.!. i
from him a less sum in full satisfaetinn u',,
j having been taken on this ple:i. it Miipwuv,! tU
I the iilaintiir had settled for half tiieaiiii.iint -111,1
given a receipt in full to M., tlu- ikuii.la',,,',
brother-in-law, who paid it ; but tlii> si-ttli-nHut
was brought .-diout by a letter fi-em M („ ./
^ plaintitf, saying that !••; had jii.st lie;-,i-,i ir,,,,,,]^';
i feiidant, who was in New Vurk, ami dn hi* „;,;■
I to California, and had placed nieaii,-- within l,',
reach to pay lifty cents in the .-<. \vl,i,.|| t|,'j
' writer ollered in full. There was sti ; .-i-,ii,||,|
1 for supposing the defembint never w^rin X,,,-
York, or inteiideil to go to ( 'alilninin. Tin- imv
having found for the phiintitf fur tlie Inli „| (!,„
: debt unpaid ;- Held, that the plea sli,,i,l,l lire
bi.-eli deinnricd to a.s pleaded to the wli(,li.i!,,l|.
I ration, and answering only to the ilaim ti.i--,,,!,
' sold : but though the p,-irties had truati-'l'it ;is
I an answer to the action, the mint, uiidii- 1!;,.
■ eirermstaiiees, instead of snanieiidiii- it, ilivi-t-'il
■ a 1- der, with leave to the i.laiiitilf'tu r.|l\-
' fra, 10 the jilea when amend, -d. Semi,],.. t||.it
' the setth ineiit if obtained on the ri-lirt-M-ntnti'ii,
knowingly fal.se. that the defendant was in' N\vr
York, and on his way to California, w„iiM imti
bind the idaintiH'; but, (^Mi.-ere, whetlu rtli.-i.jaji,.
I tilt' could reply the fraud, having a.anii,-,! the:
j settlement by receiving ami refaiiiuigtln_-m„iivv
'■ Tiiriii r \, JJiiirt rmiiii, 2!l(,). i!. lyy,
i A. gu.araiiteed to I',, (a eie.litiir of C'.iartait
eomiiiisition notes, which l;. wa.s tu eiiil(ii.-ii
the other cretlitors of C. I!, represeiituil t id
I or more of the creditors, before the coinimsiti.,!,
i wa.s agreed to, that he (1!.) was to aciviit ,1 i;k3
- eoniposition hinuself, but he had 11 seci-i-t li,n-.-iii(
: with C. that he should be paid in lull :--llrl,
on grounds of )mblic jioliey, that tlii.-< .-•wi-tl Itirs
gain violated the whole tr'aiisactiipii, au'l tint .1
was not liable to 1!. lui his KuarantcL- TAr vj
: /!!'<■/„ ;/, 1 1 chy. 411!l.
' In 1840, the defendant e-mtraeti-.i Inr tiif.-iiJ
of a building lot in Toronto to tin- iil,mitid'(
father (one of the deleiulaiit's wniluiiiii,
S.'iOd. pay.-dde in eight amiual iiistahiuiit--;
purchaser v.-eiit into possession and Imilt tn
small houses mi the Int. He died in Is.'lliiita
tate. 'I'lie piaintilt', who was his (.iilyrliill
iinniediately af terwanls i-iilistcd and lult (iiir-
■ leaving a po«er of ,-ittnriiey v.itli (Uil- A.
manage his atl'airs ; he was imt i|iiite nl a:
i this time : in Keliruary, bS.V.i, tlu' ilefin-'
brought i-jectmeiit, am! A. in tilt- f"ll-vi
March, tiled a bill in plaiiitiH"siKiiiu-f"r s]«
lierformance of the contract. Tlr- di-Li;
olainied that there was .ihout SfiOO dm- tlui
and the claim appeared to he etin'irnu-ii liVl
book produced by a bookdieeper el tin- ili'
dint, who was examined as a witness : tin- v,
of the jiroperty .-it the time, was aluiiitsTtlH
believing the ilefeiiilaiit's icpreseiitiitiuiis, a;ri
with liilii to dismiss the hill without I'lists
he aeeoi-dingly did, and gave ii]! i"'s-i>:
the defendant. Some years afti-rwanls.
IM'v? OCK-IKiaill. OMIMC ^>c,ll.s ,vii« 1 •".■■'■. ^
plaintili' returned to the province, and discuvcq
that not one half tin- ainoiint so chiiiR-d liy H
defendant was due at the time of disiiiissiii.'f
bill, .-ind thereupon tiled a hill fnr siinilK '
fonn.ance, and iiroved this state ef the iw
r.sfi
icil upon !» iii'te, Mil
or i^odils snlil ami ili.-.
[ik'uilfil til the wlihli'
rt ^VL'n' sdW (111 (.Toilit.
, the iilaiutilV .'UT;).tivl
nil s:itisf:n>tiiili. l?.v,.
;< \t\v:\. it iililieavo'l tli:,-
(11' li;>lt till' iiliii.iiiit. all'
to M.. till' iliUinliiit'.
it ; Imt this si'ttlHiuut
X k'ttuv irciii M. t'l till-
liiul just hi':;nl iiiiimlc
IV York, mill mi liis wny
ilacoil means witliiii \\\>
ts ill tliL' s, wliiili thi!
I'lion.' was stnm;; ;.Tniiuil
iiil;\iit iii-.vi'V wa.i ill Ni'iv
I to I 'alil'oriiiiu Tlii; jury ,
iiiutitl' for till' liull i.i tW
iKit till' plea slimilil liavc
i:aiU:il to tlir wliuk'ikila-
iiily to tlif claim tiirgi««ls j
liai'tii'.s bail tivati'l it ns|
ion, the lonrt, hihUv t!ie]
of so aiiiLiiiliu^: it. iliivitol j
J to till.' I'laiutilV til ni'W
II aini'niU'il. Si'inlili\ tbtj
nod on tlu-' roinvK'ntatii".!,]
till' ilofiMiilaiit was in Nov!
\- to Califoniia, wi'iiM ii"t-|
, (,)naTi', wlR'tlurtliqtoi-l
'rauil, having ai.iriiu'il tliel
luaml ri'tainiii','tlu.'mi'Ui-y,j
"ill <^ r>. \^'i-
',. (a (.■vi'ditor of C.U'irt.'ui
iiich !'-. wastotuiluis. Tl
[ C. r>. tX'lil-fsclitei' t-. .:i«|
turn, liul'oro the i'iiiiiii">:>
Vo (1).) -was to iitci'lit ,i i.'i«j
^nt he Uail a soiivt I'lr.ii
lio paiil in HiU : -!!■,'
iliov, that thissi-iivtlii
,■ transartioii, aU'l tlut .
1 his unarantoo. (''.i.-i rj
uit (.••iutractr.lf'>rti;i>'i^
Tovoiitii to til" vluiuittj
Icl'i'inhmt'.- wovkiiiiii.^ tq
uuiual instahiic lit-- ; tbj
iiossos-'ii'ii aii'l I'li'lt
,t. Hfilit'il iiil^'i'iiH^
who was liis imly.'li'.W
.IsonlistiMlanilkltlaiKi'lj
attorni'V v.itli mw A. '
,,. \va> not nmti-' m a;;j'i
nrv, IS.V.I, thi' ilfi™!f
FKAUD AND :^II8REri{ESENTATI()N.
l.-)Sl
It
A A. in
thu l"il"^''ii
|r
aintitV'snaiiu-liirsi'i'
■oiitiact.
Th'
IS alioii
iri'il to
t SSOt) ilii'
tluVl'Ol
iiii'inm'u
iik-kct'ii
ler 1
witni's
if til
If lllM
: till' ■
tmio,
lint's ixi
;,s alii'ut <My
i.utiiliiius.ii;;!-*
Ithi'
lull without ousts. «li
line .vo
tl,^. oi-oviiii'i'
vc iiV 1"'^'''7
iirs afti'i'w:"'"'
aii'i
am-
Hint so (.'
lainii'l':
i,f ilisiiiissi"
tlio tinii'
ill this
statu I
,f tl'.e »'■■'
ID'IM
11(1
,1 .nvisf :"(■'"• "' ^'"-'W of tliL' iiiisi-i'i)ri.'si'n-
t tiiilis "' 'he (lefenilant and the aliseueo of thu
hiutitf. that the iil.iiiitill".s ri^dit to a docrt-i;
fij imt' harred liy IniKso of time. J,<n-Lin v.
jtti
it, it goes strongly to prove
V. Ci/irio/, 4 (».'S. •2-r
IV. Mis(Ki.r..\NEiirs Casks.
\ i-iiuit of law eau set aside a deed where a
V liiiils fraud in olitaiiiiiig it ; and altiiouoh
mi'ri' iiwileiiuaey of pi'iee is no ground, yet, in
Himi'it'"" >vith the mental imiieeility of the
mrtv exfeiitinjj
(rami. />^'' 'I- «^'^"''
WliiTc the defendant signed, as maker, a
.,.j,itii! fiirni of a note, and handed it to A., liy
Umiitwas lilled up for SS.").*!, and the plaintills
iftir.vanls hee.une endorsees of it foi' value with-
iitiiiitii't!:~H^''''' t'l'i'' the di't'eiidant \\'as lialile,
thiui'li it iMij,'ht liave been fraudulently m' ini-
ppiiiJrly lill»--i"l "P '"' i-'"d'irscd. Mr /inns v.
Mfci.iiO 'i'- J'- "^'^■'- ''^^''^ Stinfurilif III. V. yi'o.«,
\\\^f.Yc I' Is have been openly set up for sale
n'lilcr :v li- ta., and bona tide bonglit by the exu-
cati'iiu'ieilitor, he may, if he please, lend them ini-
titiliati'ly after s.iU; to the exemtion del)tor, and
jlijlf iii'liis po.^ses.-.ion they eanuot be seized by
ikslarilf at tlie suit of a snlLseijueut o.xeention
iiitries in the boidis of the defendant and ' in the expectation and f.iitli that 1^. F. would
reeeive back from the assignees one half of tlic
stock of goods assigned by him, and that ( '.
would reeeive the other lidf, lie and K. I-', tiins
liecoming eo-partnei's ill the goods, and the goods
were afterwards all delivered to ('., witli the
kuowledgo and assent of K. !■". : Held, that
their deiiil eould not bo avoided oii the grotind
i of fraud, because there was subseiinently a par-
tial failure in ilie arrangement on the faith of
which they iiad made it. Miiilli'i'-.-inn it til. v.
Uniihrsnii ,1 ill., l,-)(.'. I'. DO.
' If a deed be obt.aincd by fraud, a jierson in-
nocently taking under it for valuable eonsider-
ation will lie protuotod. / //.
! To an action on the common counts for goods
sold defendant pleaded that at the time of sale
laintill' .-ii^reed to and did receive in pay-
the
nient tliercfor two promissory notes made liy one
. M. The plaintiir replied that he was indtu'eil
to receive tiicse notes by fr.ui I (setting out de-
fciidaiit'.s fraudtilcnt ie[iresentatioii rcs|)ecting
tlieni.) The facts as stated in the (ileadings
I being admitted by the plaintitl "s cotiiiscl : Held.
i atiiriiiing tlic judgment of the County Court that
the plaintitl' couhl not recover, for there liiiiig an
ex[iri.ss contract defendant's fraud could not
create an implied one, though it would entitle
the plaintiir to recover back tin: goods, or main-
tvin a special .aetion for the deceit. Sln/'iil'v.
Mr('„,i,-r, <l 1). .V.)7.
milittir ; and where they had been so sei/ed, , , , .,
■11,1 the sliiritV w:«.s sued in trespass bv the cxe- \ " '"^i'" executors ha.l improperly dealt with a
citioii -kl'ti-r, and the jnrv found for tlie de- ! portion of the funds of the estate by allowing
feiiilirt iiliiin a direction t'roni tlic judge that i """^i "f their number to retain it in his hands at
" irraii'onienls must be looked upon as in i !i I""' I'iite of interest, the court refused them
bdiHilvcs'^'witiiout reference to the facts of the ' their costs prior to decree. ( 'osts given to plaiii-
Icjsi, im'.iiw»tent with good faith and the rights , tilV, uotwithstanding fraud was chiirgcd against
Icitulisi'uiiont creditors- tliu court set aside the
iTfflict
Iritii
XitbvuM. 7 Q. r>. ;kSl. j ()„ ^ ),iii |iij,,i i,y ,„,y ,,(• t^,.,, infant jilaiutiti's
C ,,1,11' CiimMars, carrying on business at'!" .'^" administration suit, (after attaining ma-
■ ■ ■ -.tcdto'H.'&Co. forgoods, :.l'"''t.V.I ^fckmg to inipcacii tlic proceedings
tliercni on tlie ground ot traild : -Held, that the
also the
the executors, which was not establishc
dor
lit t.ir misdirection and granted a new trial, i the circumstaiiees appearing hi the judgment.
ciists to abide the e'veiit. ir;'.';<///(.s v. : As/ihoif^l, v. A.-^lilxiihj/i, 10 Chy. V.V.i.
iMltvilli-, heing inde
lesrtiitfil til tlicm a confession of judgniciit.
IhcLMiNls sliiiuld be sold by the sherilV : that a I
' lu'i'ufC.iuid l'.Cini|Mars, a minor, should buy
lOther m-,liti.rs pressing, an execution wa.,"i.ssued:[^"tt'''^t the pl.mititK. in that suit, as
«tliisiv,iitos..i..n, ,and an arrangement made that i trustees and the executors, had been represented
- by <iiie solicitor ; tlie omi.ision troiii the decree
of any direction as to wilful neglect or default
Itkeiiun, auil tlic execution ilelZirs'n^'eiveciiMlit "" t'!M':"'t of the defendants tlu'rcin : a niate-
ktW i.rnavds, and that the business should nal dillerence between the decree, and the decree
Luriol on hvl.ini and C. Cin<,Mars, the goods <"' '"''^''^-•'' directions as to the lands directed to
Uiuiii. in ins name as ostensible owner. 1'. I '''^ «"1'/. 'l'"' •^atislactmn ..[debts ; a purchase by
folMars lived in .Montreal. Afterwards the | t''^ «<'l>L''t"r so acting tor the .several partie^ of a
fcii'tiii Kicked up the goods, and being ,il,oi,t i vahiable portion ot the estate, ,hd not ot tliem-
.ia4 thini to his brother ill Montre-il, thev ■'^^'''ir'',;^',". i ",''' "'f", '" ^'"l^'"*!""- ■^'■'^'''''jM
■ v. Hi II, 10 L hv. 'JiS.}.
|Ttri->iizi'(| and sold liy !>. it Co as the property
Itlr. ( iiinMars. For this the phiiiititt' sued ;
111- jiuy having twice found in his favour :
HiM. tliat altlumgh it seemed clear that the
A eertiticate granted ex parte <in a false atti-
davit was set aside w itli costs, notwithstanding
the contention tliat the notices as to the service
jiliiiitili' liail never in fact purchased or paid for of which the false allegation was made would
Is, liut had been set up as a purchaser not have been dircctcir had the full facts been
Mftly til iiinteet them from other creilitors, yet before the court, tlic court declining to enter
sB, kVi,. had eoncurrcd in holding him out in ' intoany ipicstion of merits. AV Aihj'n.-tl, .S Chy.
la- (harai'ter, the court should not interfere. , ^'lianib. 77. — Mowat.
liiiiival will not lie in such a case. ('ii:iiMiirs ' , i, n ,, , .■> ..• ^i »
1/1- ,.,, p ,.,,, ' A. 15. iV C. were partners. 1 wo ot them, A.
I it n., lietore the expiration ot the te; in, luilueed
[WimsJ. H., I!. M. and V. II., had agreed the third (C.) to agree to a dissolution, a valna-
djivi' their notes to the creditors of Iv V., (who tion of the assets, and a settlement based on sucli
ilairiMily made an assignment f<ir their ben- valuation, under the false inipre.-sinn that A.
Itti in luiiiiiiisitioii for his debts at 10s. in the w,-is the partner who wrs te retire, and that tlio
i-sinl kill executed a deed to that eti'eet, but business was to be continued by 1'.. & C., wliilo
i ! 11- \'
m
> !
m ^
ir)83
FRAUDULENT CONVEYANC'EH.
i:,N<
tlie fiu't was tliiit the olijcct of A. k H. w.is to
^ut lid of ('., and til carry nii tlio luisiness with-
out him : " Ili'ld, that, liy roiis in <it' this dctuit,
the transaction was not liiuding on ('., every
]iartMcr ln'iny entitled to the utmost i,'ood faitli
by his co-pai'tners in ell'ectiny a dissohition I'f
the jiartnership and winding uji its all'airs, as
Well as in tlieii' jirevious transactions. O'Cutinni'
V. XivKjhtoii, IH (_'hy. 4-28.
Where the delitor died owing nioiv tlrui lie
had the means of paying, ami a montii after-
wards, his iiiother, who wished to pay all his
delits, wasin.liiced to give her note to one of the
creditors for an amount wiiich was less than one-
eighth the value of her propeity, it wa;;- -Held,
that in the ali.^ence of fraud, the note, though
given witho;;t professional orothi'r advice, could
not he im|ie.icheil in eipiity. Ciiiii/ili< II v. Jlal-
four, IG Chy. lOS.
I.
II.
111.
V.
VI.
A'll.
FlIAUDS (.sTATrXl': OF.)
i;i>i'i:( Tivc A(:1!i;kmi-:nts ,S"m- Contkact.
I'liOMlSKS Til TllIKIi I'AlnlKS SVc ( ! U.Vlt-
ANTKK ASH InUKMNITV.
i;i;srr.(TiN"(! Lkasks — Sn- LANrn.oKn and
TkXANT — .Sl'IX'lFU.' PKUI'OltMA.NCi;,
KlJ-IT.CI'IXC SaI.KS OI' (iooHS OK LaXUS.
1. Bii Andioii — iSVc An tiu.n ami Air-
TIONEKR.
■J. ( 1;' ( !niiil.< — Sir Sam: tu' (loons.
;>. oy l.iDiil.i ---Sir Sai.k (II' Lanii -Srr.-
ciKif Pkiu'ou.manci:.
i; r.- r!:i"i-| N<: I'sKs and Tnrs'i'.s- — SVc
Tiirsrs AND TifrsTKHs.
1'akoi. I",\ iDiAcK ro Vaijv J)i;i:iis on
Will riNcs Si-i> lOviiiKNci:.
iUcsi'K! rise Wii.i.s ^-,V(' Wii.i..
I\". V>\ Maukiaci: Sirrn.i-.MiiNT.
(a) Jli/nri' Afiirrio'ji , liKiO.
(Ii) Aj'tir Miirriiiiji, lil(i-j.
V. rnAcTirK IN ,Si:TriN(i A-ini:.
I. rni-tii--:, uwx
•J. J^li-ll'/'nill lllllt J-jl-iil, lir,^ liloj
;!. r„.i/.-; KiOS.
4. Ol/ti r ('itxr.i, KiO;).
VI. AssKINMKNT I'Ol; Tin: lU:M:iTTnM'|:n,,.
TOKS- .S'cc l>ANRI:l I'icv \y|, |^'^
VI:N("\'.
V! !. iMiAlUn.KNT AssKiSMKNT— ,S., ('lilMiNi,
Law.
VIIl. Bona kidks in Hii.l.s ok .SAi.n AMiCmT
Ti:i. .\louT(iA(:i:s-,v., liii.i.s,,; San
AND ClIATl'i:!. MolMCAi.KS. '
FKArDn.l'.XT (OMVKVAXCKS.
1. As Ai.AlNST CjlKiUTOKS.
I. I': ' : A,' .V'(':. c, ,7, miil at CoiiUiuhi
Lini; ir)S4,
'i. Uiuhr 1,1 EViz. i: ■'> : .'.' VId. c. Ud :
C. S. I'. ('. i: ..'<:.
(a) drill, -nil :i, 1")!t4.
(1)) Jli/ iriiif iif' J'l-rj'irciiri', l.")!)?.
(c) Pri/'cn iiliiil Anxiiiiiiiiriifi fur thr
hriiijit iij Ci-illUnrx Sir Ww K -
lill'I'CV AND INSDl.VI■;N^■^■.
;}. I'uihr till lii.-iulniit Art.t'-See Bank-
lirrnv and Insoi.vkxcv.
II. As AliAINST I'ri!(llAS?:KS.
!. (iiiiiraliii, I.V.IS.
'J. I'vlini/iiri/ < 'iiiirri/inin ■■< — Sir ^ OLI'X-
TAHV C'oNVKVAXCF.S.
J II. As liivrwKKX 1'ai(tib.s — Sec Fkald and
.MlsUKl'liESKNTATIOX.
T. As AtlAINST ('l;i:iUTol;s,
1. I'lulrr l-l Kli-.. r. .7, mill III ('unint,,,, /„,,
[*'(• >/',7 Vict. I-. II, (),]
Where A. 1)uing seized in fee of Linils snH A
portion of it to H., Imt gave him nn .i.^,!, .,|„[
' B. went into )iossession, and A. aftervv;i,,N miMI
i all the land to ('., directing tliivt a ilefrUi|,,i]l,[|
' he madi! to !'>. of his portion v.lieii lie y-m •■■A
it in full, anil ( '. sold all to I), except Ii.> ].nr.
, tion, which D. suhsci|Uently hmc'lit at sli, rii'si
sale, where it was Mild for 1!. 's dclit, ainl r. t:;,.|ij
made a deed of B.'s portion to a stnuiu'tT vt a.
nominal consideration : Held, that such .Ii.ilJ
was fraudulent as well a:^'.-iiust l>. as a.'.ii'Ntl
creditors. I>ir A. KVAvw v. VAnn^, 4 (I. s.;;|.j,
A., being iiidelited, nrnle a vohuKary imivivj
ance of certain i-eal estate to i!. to |iivvi!it :
being t:ikou in execution, leaving;, liiiuvwrJ
ample property to satisfy hi.< creditni's. .\.iv4i4
tor obt^iiiied judgment after this a;;aiiift .\,.l.ii(|
before any execution against hui/ts \\. snjl i
defendant for \'alualile cousiilcratinii, lint «itli|
notice of the nature of tlie tirst cunveviin
After this s.ale an execution was taken imt. m:
this lot w.as sold, a^iparently to satisfy thcji'di^
munt. It appeared, however, that tile jiiil.'iiHfl
Wiis in liict satistied by the lieir.s nf A. initnl iiil
estate, and tint the sale under this cXfLiitim
was intended for their benelit, and the I'liiviiase
at sl]eriU"s sale was acting on their aci'miii;. mid
j had paid nothing: Held, that this ^aii- iHiiij
I not defeat the convevancc iiiailc hv .\. t" I!., m
I by B. to the defendants. Ih., A.' I)iu':i w \'4
I KiMiijluirt, .-) (). S. --Mi;.
It is not always to be taken as cuinhisivi' i\'|
dence that a deed is fraudulent a;.'aiiisti.rni;t";
; that tiie delitor has remaiucil in pnssissimi
j oeiving the rents and jirolitsfora Imij; time ;ilt(
; the execution of the deed. Ihu il. Jtcii\. ll'i'U^
Inn, (i O. S. 410.
Seinble, that since Wood /■. hixic, 7 <,i. !'■ i^
a bona tide transfer of property iiKule liyaddit
to a third party, cannot he cmisiilfivil inn"
merely because the oliject of tliu .silc, iii
mind of both parties, was to defeat an i\iiiot(
execution. J5ut see the remarks nf \l<Um^
C.J., (lisai»priiving of that ilecisimi. I""'-'
Stcnnx, 7 Q. B- 340.
,')•((/< /ii'' , llJUl.
iiv-iilo ii voluir.m muwy^
cstrito to U. tu ;>ivvt'iit itt
jt'utiim, kMviii.u. !i"«vv>r
lisly lii.s oivilitors. A^ivli
lit al'ti!!' this ai:aiiift A .li\ilj
1 U'iaiiist luii'W i'>. >"1 i '
-VousidiTiticiii, I'lit Mitl^
of tho lir.-t omveyi
/lition w:»s taken mit. ;m^
inntlv to satisfy tk' jivl
owov^v, thattlifjua-mf
y tllO lioirsnf A. (.lltcil
'sale uiulor this cXecntuK
|r l.ciR'lit, aii.ltliei""'^'"''**
lUU oil tlu-'ir aeotmnt. ;ini
llcM, that this siV o'UJ
i,h,louta','aiii''tiiv.ht"i
aini'il ill i"'s>t'>-'"" ,1
ilitsforaloivutimi'iltt
iK'lcat an e\i«M
the i-oiuai'lvs
l.iW
Wiieri; «■
,ld-i>ti-'.
FIJALDU LKN'r ( '( )N V KVAN( KS.
loSG
til'
iiitiiiii
iiuiiit
ere
hatuly
ods biive bei'ii (ijiciily si't iqi for salu in 18.").'l, as tiiu hiw tlicu :.t!ioil, ha 1 not the uilout
ii., ami lH)iia liilo lpoiii,'ht liy thu fXu- of ilulayiiii;, liimleiiii;,' or ilcfr.iiiiliii:,' the ]ihiiii-
litor, he may, if liu j)luasi>, luiut tliuin till, so as to iirakf it v ' "
ilcr till' stitiitu ]',i
Iv after sale to the exceutioii ilelitor, Kli/. c. ."> : that tlie s.iiil statute exteiuls only to
Itthik'iii his possessioi
th
i.v tlio
rilt' at thi' suit of a sillisji|iieiit exee
ley cannot lie seizeil tlie assioiinient of siiv.'h thiiii{< as are Ii ilile to
lij taken in exeeution.
illtor: aii'l where
tliev had 1
li'ell so sei/ei
uiten
.■it IS not
lialde
anil tiiat n in irtirai^ee s
Ln/;
till' slicriir was sued in tiespa-is )iy the exe- C. 1'. •_'!l,"i
!;////■.
!)
lUtl"
.liiiit iq
.kilter, ai
d the iurv found for the def
iiu a 1
iits
i^livs', without releren
■,„,„u,isteiit Nvilh gooi
litors -
lireetion from the jiidue that siieh
st lie lookeil at as in thein-
In an int
t^'riileider tlr
luirehiser under an exee
ilaiiitili'
iition, 11
lion ^1 ,1
to the facts of the eas
ol which he was the assignee, the deti'iidant
aimed as
ud!.'ment
la
j„l«iHieiit ere
I faith
■the ei
and tir
lurt set asi(
i-hts of
■r a snii.seoiieiit execution.
Tl
lioni lilies
th
; fur misilirci
■iists t"
tioii aiirl t^ranted .a m w t"
III the Jndniiieiit am
not disputed, ai
d assi''iiment to the iilaintill'
d th
Ills had 1
1'^
i„-cn reyu-
alii
le th
11';/';.
1 irly sold und.rtheli. fa. Ujion it to the idiintitl".
.!/■■.
./,/. 7 II. r.. :<"
It apji-'ari'd, Imuev
-■r, that the exei'ution
itiir
had lien a party to the notes given Iiy the.
trover the court thought the' jury plaintilV for a imrtion of the purchase money of
WIkto 111
ii„„l,| liive treated the traiisaetion as lieiiig
tl
le original judgment, am
laiiitiff's own shew
kilt. tlii'V grail
I fK mi'
(Vdit.
ip:
ted a new trial, th
facto fraudu- '''I'l ivMiained.
h the verdict li'"
lief I
Iv'fiir fU lO.s., with eo.sts to aliide the H the oli]cc
'Kmiir'«'ii V. ('iiii'i r, 7 ',». !'>■ 4."i,"i.
ischold furnitiiri
t of the
litn
that
1
th
tOSSt'SSlOll (
lie
if till
jury were
told that
as to prevent other
\ liV deed of Hth of .April, ISt!!, conveyed
.,'r ciM'tiiii lauds, the eonsideration liciic,' ex-
,Lj,,Un the deed as OVl lO.s.. hut fp-' lOs.
ialv was paid. At the exjciition of such deed
I \ was einharrassed, all. fa. having liecii issucil
iHiiist his !.'oods ill {''eliru.iry, IS4!?. .\. had
Jiicr iirnperty hcsi les the iircmises in dispute :
L,l liisiuMperty siilisei|U-'iitly turned out well.
Iln S iiteaiher, IS4'i, the sheritf conveyed the
Imiiivi til ilefendaut liy deed, reciting ••in exe-
I'oU'iiia.'Uii^t the lauds" of .\., tested I'Stli duly,
jl\l,'; and upiiu this deed ilefelid.ilit relied,
Iwitiii.' til' oiiuveyancj to t>. as voliintiry and
|t(.iii;isii','ailist cred'tors. After \-erdiet for the
liliiBtili', H.,— Held, that tire ipiestiou of the
l&tiB. lieiiig voluntary, and as siudi fiMiuln-
Inviiii^ lieeu siileiiitted to the jury, and
lltvlriviiii; fiiiiud that it v.ws lioiia tide and for
Ivilik'. tlitTe HMs no suHieieut reason to disturli
liicii viM'iliet. h'ciiiiii- v. <!'iii/itiri/,C> {'. W 170.
WliiTO ii!i alleged sale of goods in a stor,' liy a
(iiitihis niiither, (the plaintill') the only c'.iange
i>sossiiiii euiisisteil in the former assuming
(It lo-itiiiii of clerk to the latter, and no stock
[Tistik.'ii. an 1 there were other circumstances
Wiiii:: t" shi'^^' "'ant of Imna lides in the tr.iiis-
;>iii. aiiil 111 evideiu'c was given of a written
siiiiiiieiit, nr of such assigunicnt having lieen
ka-t.ivd : -Htdd, that a verdict for the )ilain-
f»,is iigiiiist evidence, and a new trial was
Iticrel yci»//// V. Mniilii il III., (■> (_'. V. 471.
I Tlisiilo iif guilds liy parol in this ease, witli-
Rt.myaotuil ikdivery and change of ]i,iss;'<sioii :
\-\\M. viiiil as ag.ainst suliseipieiit creditors.
'&!„,' wUnprlir, 8C. I'. KS(i.
iliily, 18"i3, 1!., in order to provide for his
Mitcr.aiul in cousidcr.ition of ."i.s. , assigned the
iiloiiiwycd and money secured liy a mortgage
liy .'^. til a trustee for his said daughter.
.\ugiist. IS.'ili, the plaiiititV recovered jndg-
ait ;\;'ninst 1!., and Muliseipieiitly olitained ii
muliw oriler against ('., the executor of S.,
'HilidC. til ]iay him a sum then due on the
» fniiii S. to i;. At the time of the
Bmoiit there was nothing due and payable
^H. til tlie ]ilaiiitiir, nor was he in a situation
kwktiienfiiree the payment of his claim until
p)>;-lklil tliit the assignment of mortgage
100
creditors from eiifiireiiig their (dainis, it would lie
void : Held, a misdirection, and that it shonlil
have lieeu left to them to sav (as in (iraham ''.
iMirlicr, I4('. U. 4141 whetluu' the sale to tins
plaintill' was Inula tide for the jiurpose of reliev-
ing the execution delitor from the necessity of ;i
forced sale of his good.-, or for the mere purpose
of |irotecting tiieiu from the claims of other
creditors, in which latter case it would lie frau-
dulent and void. C/<ir/.- v. MnrrH, -.M (,». U.r.'Mi.
l>eclarat;iin mi dcfeii lint's cnvciiant. made in
lS."i7, to iny the [d lintill' i;."!7 lOs., anii interest.
I'lea, that the coven int was contained in a chattel
mortgage made liy defendant at the plaintill "s rc-
(|ilest, and to liindi'r. defeat, and defraud liiil
creditors, and without consideration. I'lionde-
mnrrer,Hc!d, Ind, for a covenant so executed
is only void as agiinst third pirties, and not
lietweeii the jiarties to it. .s'co'iA- v. !!• ikhii, 12
('. 1'. (i.'i.
'i'lioiigh a sale of land may lie fraudulent as
against cred.itors, still where the evidence sheweil
that the exeeution delitor (the vendorl had not
raised the crops, the suliject of the seizure, or
furnished the ine ins of doing so, Imt the lalionr
and means h id lieeii contriliiited liy the veiideo
alone: Semlile, Wilson, .1 ., diss., that the crops
were the sole pro[ierty of the vcudi'c as against
the execution creditor. K'l'Ur'i-li v. Cniinriiii,
17 <'. I'. 'MW.
A sale .and conveyance for valualile considera-
tion, paid at the time, of the grantor's interest in
certain land to his father-in-law, made in IS.'iT,
iclieil as licim; fran luleiit as .against
l:{ l-;ii/. c. ."). The leariietl
was impeac
creditors under the i;< l-.li/.
judge asked the jury whether the deed was a,
lioni'i tide transaction, adeedn ide for a v iluahlo
eonsider.ition, or whether it was fraudulently
made, as a mere scheme or contrivanee for tlio
liiiuk
ilcfr.anding
puqiose of delaying, hindering, or -^
creilitors, in which latter case he said it woiilil
lie void ; and he lefiised to add, that if they
lielieved the consideration was ]iaid to cover tlio
property and protect it froiii creditors, they
should liiid against the deed : Held, atlirmiiig
the judgment of the (^tueen's r>ciicli, •_'7 <»>. l'>. 1 !•.">,
that the charge was uuolijectioiialile, lieiiig suli-
stantially in accordance with \Vood c l>ixie, 7
• ^t. Ii. .Si(2, which was recognized and followed.
Spragge, V.C., dissented, on the ground that tUu
1387
FRAUDULENT ( ■ONYEYANCES.
loi*i*
jury slnmld have ouuii told, that iilthouyli tliuy
iiii<,'lit find that thr (Minvoy.UK'u was for \aliU', yi^t
if th(^ iiituiit iiid ]iiir]iciso nt iKith graiitur and
uraiiti'i^ was t.i (k't'iaud i rt'ilituiH, tliciU'ud wimld
Ik! void ; and that this was imt the I'lVcct of tiiu
cliar;,'o. SiiiUh v. Mofiili, 2S (}. 15. 4Sii, in
aiijiiial.
In I'jfctnii'nt thf jiliiintili' L'lainicd tlirou^^h a
tlt'i'd troni .1. M. to.)., niackr in IS.'iT. |)clV'ndaiit
chunu'd thrnunh a imrchasc: at slicrill's salo undor
e.xfi/ntinn against .). M., at thf suit (if imu*'.,
and he iiintcmk'd also that that ihiod from .1. M.
to .1. was void undi.'r tin; statute of l-Mizahcth.
Both .1. M. and .1,, howDVcr, swort^ that this dot'd
Avas made iii j^ood faith for a vahialile eonsider-
atiiiu ; ]n-(ivisi(in was made for ]i;iyin;,' oil' (', 's
Jud;;nient out of tiie |]ure]ia»e money : and it did
notaii]Mar that .1. M. had any other I'reditors:
Held, that tlie deed was good. Mtirrismi v.
A7<'/', ;;•_' (^). I!. IS-.'.
I)i\ers conveyances made liy ilefemlant shortly
hefore the eommeueeinent of tliis suit, declared
fraudulent and void as .-inaiust the plaintill'.
/'nil /!.•<.■< V. Ill-Ill mil', 4 ( 'liy. I tS.
The owner of landf, suhjeet to sever.il mort-
gages, conveyed to his hrother, liut without his
know leilge ; and the person liy whose advice the
cleeil was executed stated in evidence that the
<leed, thougli al>s(j|ute in form, was made upon
trust for securing the iucundiranecs att'ecting the
]iro|ierty, and for the lieuelit of the grantor's
children ; the grant<ir at the time lieiug greatly
involved, and having no other pi'operty except
hook delits and household furniture. A sale of
the grantor's interest was subsequently etl'eeteil
liy the sherili' ujion an execution, and the pur-
chaser having tiled a hill impeaching the con-
veyance ujiou trust as a fraud u]ion cre<litors,
nuil praying to he .•idmitted to reileem, the court,
under tlie circumstances, decreed in his favour, i
lii'iiinl-'li V. i'liiii'i-iii/, (It'jiy. .■)8(). j
A conveyance may he fniudulent and void .as
against creditors, aithongh no debt may he iu
existence at the time, if made in ooutemplatioii ;
of heeouiing indelited. /Imi/c iif Ji. A. ..-I. V. |
J,'iil/<iiliiirif, 7 < 'liy. ."!«;{. ' '
The ag(.'nt of a h.iuk h.iving liecome largely
indelited to it was sued, ami when t'Xecuti<in was
about to issue, he absconded from the country ;
and, with the avowed o!)jeet of defeating the
claim of the bank, but, as the agent .alleged, for
the ])urposc of paying his other civditors, con- ^
veyed away to a person to whom he was only
then introiluced, a large (|uantitv of valuable
lautls, to be paid for in goods at long dates,
returning at night for the purjiose of executing
the conveyances, and wliieli were exeeute<l with-
out any investigation of the title of the ])ro]>erty ;
and the agent subsctpiently assigned tlie agree-
ment for the <lelivery of the goods to his son,
taking in payment his notes payable o\er a ]ierio<l
of several years. The court, under the circum-
stances, set aside the s do as fraiululent as against
the bank. T/n- liiniL- nf L'. f. v. Tliuiiin^, 'J;
Chy. 3-_'l. See ,V. C. in appeal, 2 K. & A. 'A)i.
A secmid mortgagee, as such, eammt impeach
a prior retfistered mortj-'aije, as fraudulent and
voul ;ig.ainst creditors. t\'(irrcii v. Tfii/lnr, it
("hy. M.
There being disputed accounts between A. and
R. , an action at law was commenced by the
f(U-meragain.st the latter pricn- to I'eljiii.irv u-'i
In December of that year J!, exccutidii ^
gage for £]:W to one H., to sucairc tn lunrii''
payment ot CM), but i)riuci]iMl'y «itli tliinli'.','
of raising money njioii ^it witli 'which tu mv"!
another indebtedness. There beiu:.' a iiij»tii.',
the description, and K. rc(|uiriiig" i v „i,l '
than this mortgage "( mid cover, iMiiptlurii, "
gage (for f-'OO) was executed for tlic«f i.nn,,'""'
lioth of these instruments wci'c li|.|,| 1,^ ii !'
sale, in oi-der to raise the ivipiircd aiimi'inf ,, -
he withheld them froi.. registi-aiioii luitij lniu'il!'
lind a purchaser. (In the U''.']id S,.pt,.||,l„.|, '|1|,.||
\. j-ecovered a judgnu'ut, wliir], l^. ivHi^touJ .
on the same day. Hearing that .A. was ;X„'
enter judgment, H. on th
judgment, and
,as aiiliearci
lav
•mt t.i
•r ciit,;ni,,, tli, j
»-'Uti-y, tn.mji,;, f,J
without the kuowlci|;.'c (if
lietore the
ri'::
Besides the lands covered
owned other available \\
tered the mortgages for the avov.-.'il iiuiihih' >'
retaining his jiriority. Shortly .■iftcrtk- hvi"'.
tration II. returned the lirst iuorti,'aj,'i' tn B 1
intending to use the second one only, iiU'lfUflu
voureil immediately afterwards to sell j(. ajij
had contr.U'tcd to do so bir the bnii;! liilc i,
of raising money wherewith to pay n:i||n. j.yml
of A., thoiigii the object Was not "aci i]ili,slK',i.|
by the nmrtp.'i-. E.f
al estate iiumv tli,al
suthcieiit to pay his delits, as al.-:o a liiiaiitn
household furniture. On a bill ilkil ay.iiiist '
and il., im]ieacliiiig the mortgage a^ v»liiiit;r, I
without consideration, and with intent tn
and delay creditors :---J[eld, tliat tiicsi.' ,
were not sup]iorted ; but the plaintilf v,a,.all"U.H
to redeem on iiaynieiit of tlic aiiiouiit int wi,;,
the mortgage wa.s a subsisting security, ami ].:\
ing 11. his costs of .suit. K.-^toi, \'.('.] ili.<>., v.j
thought for all in excess of CM, ami intin-!
the inort.cages were fr.auilulcnt and vniil /'
:uy nil
'ii,s,,n V. hnjlil', 10 ('
1 H.
S., by arrangement between liiiu.clt aa.l 1
the owner of the eipiity oi:' rcdeiiiiitinii um,;..
, mortgage made liy <i., latleased tlic security witiij
; out any consideration paid tlicivfur iiy 11. i,i il,
: and disehargeil II. from lialiility. (»n al>illiil..i
I by an execution creditor of S,, cliari^iii!.' tliiit :il|
! the time of this release S. was iiiilciitcii'tn \a%
and was in eudi.arrassed and iiisuhciit fiiv;:iiil
staiua's, praying tli.at tlu^ discharge lui.'ht Iv
clared void, as being within the l.'i Kli/. .,
underourd. L. I*. A(;t, bS.'ili., and fnr fnivili,-;:
or sale, and .an order against II. to ]iay tlk' '1
tieiency ; - -lield, that the intci-est of a iiiiirt.'iw
is of a nature to bring it within tlu- .-tatutti
VAi/.., if it can be seized midi'r the ('. 1.. R .\d
or can be compulsoriiy ajiplied to the ]iayia-'i
of the debts, and that a discliaige of it witlinj
consideration is "a gift or alienation" witliiiitM
pri(U' .statute : that the nioi'tnaL;c wimjil liafl
been seizable lir;d it not been (liseliar:,'i.'il ; tli^
when the inortg.ige is actually scizwl U tit
sheriir, and the mortgage debt is t.i lie ivaive
the sherilt', |icrhaps, must sue. amltlicm"!
are, under the statute, entitled to the .<aiin' iv
; odies (with that one exccptiim) as an "iiliniU
j as.signe(; : that when the iiKirtgaue ilclit i:
i realizeil otherwise than by the sherilf siuii.'. I
: lies upon the court to see that it is rcaliztd f|
the benetit of the party entitled ; tliat tln'
charge of the miirtea;,'e, and tlie aiTar.i;fiiia|
htetweeii H. and S., had the elfcct er ri'M
;(!. from lialiility, though the release mi^'lit j
declared void, and the uuirtgago set uji
I.-
priiir t(i Fi-liiiwry. IvV.i
l\., to suL-\in' tiiliiiii tW
iucil):il'y \sitli till.' (il.jirt
it witli \\Uii;li til iiiiv.if '
TliciT liriiiL' iiinistiik, ii;
;. rciiuiriii^,' iihmv uiMiity
i\ilil fdVfi. aiiiitlur niiin.
cutfil till' tlii'Sf i.iiri»..i.s.
■uts wei'i' hi'M liy II. i„|.
110 i'oi[iiii'c'l .■iiuiiiiiit, aihl
ivi.'istnvliiiu until lifcuuH
Ir' "J'-'nil Si'iiti'Hitiit, ISM), :
cut, whirli lie ivj.'i^rtol I
.rin)4 that A. was iilinHtt.i I
1 till' il;iy nf I'litcriii.; tlwj
tho t'liti'y, tiiim^li ^., iar I
III! kliii\vli'i!_:^i' ill li.,ru:;is-
>r till: aviiWfil [luijiitfe I,; I
Slini'tly al'ti'i' till' H'p!.J
;lio tirst iiiui-t'^agi' t"Vsj
ei'diul iiiif iiiily, aii'l i.iiilta-
afti'i'wanls til si'll it. Mill
<i lur till' lioiifi liili' iiurpnsjl
ri'with til iiay ulltin' liuimi
oct was nut ai.'i'"iiiiilisiu.l
I'.ri'il liy till' mnrt'.':ii;i-. ]'..
lie vual I'state uinri' tlhiij
cU:lits, us also a i|iiaiitity"fl
On a liill illiil ai.Miiist L.]
tho iiiiirtyaiji' as vuliiiiii
1, ami with iiiti'iit t" iiiiun
-llolil, that thi'SL' iliit^i
Imt tlu' )ihiiiitilV was alinMn
it of till' aimmiit inv \vl;ii
lUbsistiiig SLTiirity, atul y\s4
it. F.sttii, V.('.,ihs>.,\\lii)l
oxi"^'.-<^< of i;;>l). aii'l intiift
■I'lUii'iiiloiit ai'.il viiiil ''■'
hy. Tti.
t li'jtwi'i'ii hiiiM'h' aii'i^ 11
[itv of ivih'iii|iti'iii uaili'r:
I'oloasL'i
th.
M
ai.l thorolni'l.y 11. "r<
I'lirUvwitiii
1!.'
lialiilitv- <'»:'
hill 111.
itor of S., L'hai'yiiiu that M
S. was iiiili'iiti'i
to llililj
ami iiisoivi'
t,ho ilischai'go III
lit I'lmiMl
uiit 1.1' ■i«r
ithiii tho i;i r.liZ'
I't. IS.'ili.. ami loi' f"iwl"'i';'
I'l' auainst II. to lay the '
I ho iiiti'ivst of a iii"rt,.'iij'S|
ill., it within thi' >t;ituti C
/oanii.hM-thoC. 1.. I'.AcI
liy ainiliod to till' I'ayiU'
liit a ilisi'hario i '
hft or alioii
JtUo
It m
iiiortiraL;
i| It witlii
itiou" within tM
iiiiM hill'
itl
liM'liar,'i'i
lOOll 1
ai'tually >oi:
I : till
•il hv ta
Msio uoo
t is to III' I'l'i-''-''^'
lliiust SlU'
ul til
IC I'l'l'ilitm
,,titlo.ltiitlio«mi-;r>-'^
L'XOL'iitioii) as
tho iiiorti,'ai;o i
all iiruiiiai
lit is t'l '
an iiy
the slion
if i-mw:,
that it IS V
.■alizi"! I
Ivrty
'a;,'o,
fhail tl
lollL
utitlo.l ; that t!u
1,1 the urnu-.grtw
tl
10 oiu-i
10 I'olo
I (11 I'l'li"'*
, Jit i
ISO nil:
lliO nil
,vtL;ai,o SI'
t HI'
Kl!A('l)ri-KNT CONVFA'ANCKS.
l.")'.i(l'
therefore that ('<■ would not liavo hooii a' 100 aoi
if h
iinl HI I'oiisi
lol'uti
ifl
loll III iiinasstiniiiiL
IT'
ilT ]'
art\.
/iiiiii' «i' r. r. V. si,ir/,-ii
10
lyniont of 'I'. '.s jnil;,'iiioiit, ami of liis inakiii),' ii
by.h'T. ,;;
Where a iiorsoii in lnisiiios.s lioinj; liahlo to a .
for lifo to .1. I!. Ill' .1. 1".
wito
if
1.1 aoro«
aiikast'iHii
I'sor for others
to ahont Cli, ."lOO, iiml
mil
iiwii aeioiui
t to alioiit t;.'<, ."i(IO, ami otlior-
,. t" a
lar.
'.vtoiit, in.ulo a oiltot a nioiti'aoo
nhiili 111
um
the ola
ill npoii loal ostato for t'J.'iO, hy ri
iinlitm":
to tl
assets at the tii:
I ■ owner i
if tl
iii^ri'
,l(l.t.
than flO.OOO) ai
liifss to the lian'
ll Sllli;
M>
le oi|
tii.'ii
ith
llltv ol
f the laiiil, hoini; the aralile \
I. 15. was then the hoi,'
^ivoii to him in satisfaition of wa;,'es eariioc
him ,is liireil i
)iiirsiiaiii
toT.
irtion thereof.
if a line hill for CJO,
I 1
ili
'.V
servant with .in elihr lirotlier, iiiul iii
if till
10 saiil aLireeiiieiit transfern
ih
III roeoiveil 1 aynieiit tlioreot, am
ll tl
I als
us
, made a iiroinissorv note joiiitis' w
n w i> J' .. »i. 1 .1 .' -■ '!> ' i .:. .
lith .1. Ii
am
\V. 1!. fortl
L'huiii, whioh note
as iloiililoil, ami after-
,;ir.ls a juilgm-
iit was olitaiiieil liv th
xei'iitiiiii i>snoi
t ol
Mill I'
; ill ri'^Ti''-
relt'te ;-
tho ciso wi
M. iiitir
, yjpls i'""-'*''
hank,
out aiiainst liiin for L'(!,.S."."i,
inoiievs line
it the (late of th
roinaiiieil iiii))aiil. No eoiiveyaiioo was exeonteil
liy •'. H. until .lime, ISil'i, ami no life lease until
l>. iiiailo a lease to his
niothor for lite, it l.ein.L: iiiade to her ami not to
M
vroli, iSii."), when
lleM, that tlie.se faets ili
thill the IS Kliz. //-.
it ll
.1. I!.,f
tor
or the inu'liose ol ihon eiitiliy •!. h. s erei
ili-
s imm takliio it in exeeiition.
if 1 SlU, amis
if I.SilL'..!. H. Ill
III the Militer
iliilelitoil
ti'iV'i'il laml to ];. fi ir .".! ino. .iml after- to the iilaiiititl's, who leeovereil jiiil.'iimiit, ami
it tl
leil into vilhiLje hits, ''I'.-il a hill to set asiile the trans.ietioii as
jiiiii
ilaiis tl:
loreof mailo. M. then lieeaiiie in-
T'hti'il t" ('. :"iil others, who iditaiiieil Jiulgnieiit
1 ami L'Neeiitiiiiis a;^aiiist him ; W. was then also
laii-cilitnriif -M. hy .simiile emitraet. 15. ailver- '.
i tiH'il the jii'oiiiisos for sale iiniler the (lowor of
fill his iiiiirtg.'lf,'0, siU'li sale to he in villa;.;e
hub iii'i'iililili'-' to tlie lil.ili thereof. M. ami the
skri'rt, wliii lii'hl the writs of exo'iltion in-evious
I til the .''^ll'-'. iiyrooil that the sheritV slioiiM hiiy
1 in till' iu'eiiiises at tho amoniit iliie 11., ami liohl
I the saiiif >» t™-"*t '"•' -^l- It was foiiml ilillionlt
[ittliesale to soil in villagi' lots, ami at the siii;-
linstiiiii "f tho sheritl', ami with M.'s eonsont,
ihevwei-e jmt uji on hloe, ami hoiight hy the
.ittritf fur tlie anionnt due 15. \V. afterwards
I olitaiiii'il jiiili^iiioiit aii'l issued exeeution ag.'iinst
, Bids, ami nil IV hill hy t'. and W. a,i;aiiist M., .
I tkt sheriff ami 15., tho sale was set aside as eollu-
lare, ami teiidiii^' to delay eroditors, within 13
Itiiii'. .''. H'r'/"/,/ 1-. J/i'f.'o /■/////, lOCliy. 4l(i.
.V lieilif; largely indebted to 11. & ( 'o. and the
I owner ill tee lit oortain real estate, eoiivoyed the '
Isiiiie til liis son, without eonsideratioii. I.!. i.\:
It'll, ivoivel'eil judgment against A., and issued
lesontiiiii against Jiis lands in .May, I.S()4, hut in
I Ftlini.irv iirevioiis the .son had eonveyed the ;
Immi.'^i'.^ til !>., taking for his piireliase thereof
lliisiiriiiiiis.'^iiry notes not yet due, and still uii-
Ijuiil. Eviileiii'O ostahlishiiig eollusioli hetween
l.l. his sun, anil 1)., was addiioed, and hotli the
liiiinvvaiiees were deolared fraudiilent, and the'
Ik.ls lielil snhjoot to the [ilaiiititl"s jmlgineut '
|lelit, llii'-liiiiinii \. hhi-^li 11, II (_'liv. V.Vl. I
Tlienwiieriif real estate worth .'ii!4,800, suhjoot !
lioaiiiiiitgago oil whioh •'r<l,'.l.")() was due, sold the
|ti|iiity uf I'eiU'iiiiitioii for .'^."lOO to avoid exeon- i
lliiinsat the suit of his eroditors, he lieing iiisol-
Ivtiit, aiiil the veiiiloo aware of that faet, and that
iiii.jiit was to plaoe his jinqiorty out of the
uhiit hisei'iilitors. 'I'lie imri.'haser resold the
||irilicrty!iir an ailvaiioe of .'^1,001), after the iiisti-
ItatMi Ili in'iieeeiliiigs to siet aside the traiisaetioii,
.i)i«!iKhtlie iiartyiuirohasingMas aware : iiold,
ItLit the trausaetioii was within the l,S Kli/., and
lltiiiiM 111' set aside, as having lieeii made to
Ik'ld' anil ilelav eroditors. Fui-iiinii v. I/oi/iixmi,
"lliv. l,-iO.
lent within the statute of Kli/aheth
Held,
I 111 .\iigiist, ISlil, .T. B., hciug indebted jointly
|»itli\V. IS. tiiT. in the sum of tSS, for wliioii
ju'lgiii'-ntliail heeii rooovered. and to one K. in
tkfsiiiiii.i flO, agreed with R. 15., who was his
M. Mil was not llion of age to convoy to him
that under the eirounistames, the oonvovanoe
to I!. 15. eould not be deeiiied voluntary, but
that the life lease was volmitary, ami must
be set aside. The hill was therefore disniissod
.•IS against U. !>., hut without ousts. Ihlcsihr-
Ili' r y. i'lirtnii, l"2('hy. .')<i!'.
.\ iiorson having a elaiiii a,i;aiiist an insolvent
liersoii, gave it to his sister, tliewifeof the insol-
vent, in older that she might thereby obtain
from her husband a deed of his }iro])i rty in eoii-
sidoration of siioh debt, v. Iiieii she did through
the intorxeiitioii of a third jiarty, who oon\eyed.
the hind to her. The eoiu't set aside the ooli-
voyaneo at the ilistanoe of a ereditor of the liiis-
baiid, as void under the 115 VAv/.. and the Indigent
' Debtor's .\et of this provilieo. I'ul'l v. Easlitiiin,
13 (hy. i:57.
A'oluntary I'liiivoyaiioe.i are void against exist-
in.".' debts whioh are thereby defeated ordol lyed,
whether the enliveyanoes were fnnidulolit or not.
' Irir'iii v. l-'rii iiiiiii, Ili ('hy. 4ii.">.
Whore a debt, the reiiiedy for whioh is barred
by the Statute of Liniit.itions, is aekmiwledged
by the debtor, and judgment is reoovered there-
for, a volunt.iry settlement made before stieli
aokmiwledgment, and before the reinody was
barred, i> void as against a tl. fa. issued on thu
judgniont. III.
A debtor suld his prii|!erty, re.serviiig by liarol.
eort:\iii future rents to pay a oreilitor, and whioh
were sullieioiit for the |)iii']iose : the objeet was
to delay the ereditor, and to ooiiipel him to wait
for payment until these rents shoiild aooruo, anil
all parties oonibiiiod for that obieet. The salo
was held wholly void against the ereditor, .'i
tr.insaotioii to delay a ereditor being within the
l.S VAv/.. as iiiiieh as a tr.uisaotioii to defeat him
altogether. Miirllui \. McKiiiiia, I4('liy. ."lit.
Where ;ui insoheiit who was pressed by his
eroditors, and eoiiteniplated leaving the eouiitry
ill eoiisei|iieiioe of his ombarr.issmonts, made a
eonveyanoo on 1st August, IS.'iS, of all his t.'iii-
gible projiorty for ;in iliiilei|iiate oonsideratioii to
a relative who was aware of his eireumstanees,
! the eoiivevaiioe was set aside as against eroditors.
! Crnir/nril'v. .Vr/i/nnn, .S K. it .\."l01.
An insolvent per.soii exoeutod to his son a
mortg.ige for ."^KWO, of whioh .'rJiiOO was a sum
fraudulently pretended to be due to the mort-
gagor's wife : — Hold, that, even if the rem- iiiinjj
IP'.;*' .
r.' I
ir.ui
F 1 ! A TDt" LENT ( '( »XVFA'A N( ' KS.
i.V,):!
i ! ,
m
."um wiiH really cluu to the iiinrtj,'a;,'ci', liiw inii-
ciintiK'u ill till! fiauil as to tliu sdOd ixiiiliit'cl
tlio iiiiii-t^'a;,'!.' \iii(l in tdtii. Tnt/i I) V. />iiii:/fii<,
i:. ciiy. I •-'(;.
A iiiaiTicil wniiiaii (.'iitt'ivd iiitii a cmitraft fur
the jmivliase iil' laiiil : one (if the teniiH l>eiiim' that
the eiiliveyaiiee shuuhl lie to herself. In jiay
liieiitiif the iniiieijial Jiaituf tlie ]iiiivhas*e iniiney
tile hiisliaiid assiyiieil to the vendor a in<iitj,,'a,L;e
hi' lield on otlier pinpei'ty, wliieh, so far as ai)-
peaied, was his only means. It did not appear
tliat he was iiidehlt'd jvt the time, Imt a month
afterwards he endorsed a note for I'lO, whieh
was not paid. The family, iiieludiiiy the hits-
liand, went into possessinn of the land ininie-
diately after the pnrelia.se, and made improve-
ments, lint no deed was olitained, and a small
lialaiiee of the jmrehase money remained uniiaid
for twelve years, wiieii tile money was raised l>y
loan on the property, ami the deed was taken to
a sen of the |iiirehaser : Held, that this deed
wtm Void as against the holder of the note.
Wii'/'/li V. Mrdiiihi, l.'iChy. 'Jlil.
J., the owner of lands, eonveyed his land in fee
to L.--L. afterwards eonveyed tlieiii to. I. s wife.
She and her i;iisliaiid then mortgaged the lands to
.1. ; liiit the wife was never se]iarately ixamined.
L. then liled his liill, alleging that the niortua;.'e
'off ff O p
was to lie taken to secure part ot the piirehase
money, and that.!. 's wife refused to be e.\aniiiieil.
By tile decree it was referred to the master at
(iiielpii to ascertain the consideration for the
original deeds. The master reiiorted that the
original deeds were given liy .1. to ],. w ithoiit con-
.sideration, and to enahlc .). to defeat his credi-
tors. From this rejiort the plaintilt' ajipealed ;
lint the ap[ieal was dismissed. Defendants then
heard the cause on further ilirectioiis ; Imt the
lilaintitl' did not ajipear : - Held, that under the
eiixumstance.^ tii..' plaiutiil' was entitled to have '
the mortgage completed, or the deeds to J.'s ,
wife given up t<i lie eaiieelled. Hut as the plain-
till' did not a]ipear, he did not get a decree,
tliiuigli the defendants were refused any relief.
J/'nii-iiii) V. JiiltiiKliiii, 1,") (-'liy. 440.
A person lieing eniliarrassed made a deed of
land to his son in IIS(i4, in alleged pursuance of a
prior agreement, liut he remained in possession
and kept tile deed in his own hands, and unregis-
tered, tor tifteeii months ; ;iiid there were other
circumstances against the good faith of the trans-
action : — Held, that the deed was void as against
sulisenueiit creditors, the jirior creditors having
been paid. S/i-riiixii:! v. FniiiL-liii, Hi C'hy. IH'J.
r A person indebted to his housekeeper in .'j'tiOO,
conveyed to her some land in satisfaction of the ,
debt, the eoiisi !eratioii being not inade(piiite.
On a bill by another creditor to set aside the
eonveyance as fraudulent and void, the court
being .satislied that the debt was owing, and that
the conveyance was intended to be etl'ectual,
held it valid, and dismissed the bill, but without
costs. Muiirc V. J)iiri.-<, Ki (.'liy. li'J4.
A sale made with intent of both vendor and
vendee, to defeat the creditors of the former, is
void in eijuity, whether the sale was or was not
intended to take efl'eet as bijitweeii the parties
to it. Wtivd V. Jrii-iii, Ki Cliy. 'M)S.
AVliere such motives exist in the mind of a
solicitor as would be sufhcieiit with ordinary men
to induce them to withhold information from
the client, the presumption is, that itMasnitl
held ; and the iincummiinicated kinnvlii]., ;
till! solicitor is not imputed to the (.■liint "'
notice. Where mortgagees sold the llllll•t.^•,„^.f
defeat or delay their credit<irs, but the vmhI.'!
had no actual notice of the ]iurpo.He, it was tlOl"
that the cireiinistance of
ii'iviiig u:iii,l„vt,i
one of the mortgagees as his soliciturli, ,i.'..n,|| ,
the assignment, iVc., did not make the kmn^'
ledge ol the solicitor notice In the Vciil..,.
('mill run \. II itlrli'ismi, hi ( 'hy, ."I'jii,
A conveyance exeiiiteil by a dehtiir in ,;iti«.
faction of or security for a ilelit, if iiitiiuli.,! .,'
operati: between the parties, is valiil tiimi,'
olitained in order to gam iniority to an 'ixiiwtni
claim of the crown under a recngiiiziiiice. ji
Atliiniiii-<!i 1,1 rill \, lliiniiir, l(i ( hv. ,"i,'j;(.
A debtor
(I laiKl
conveyed land to his fatlw ;u„l
brother-ni-law respectively, which tliev daiiitel
to lie boiiii lide, and for valuable c(ii,M,k'niiii.ii
On a bill bva creditor the court w
IS iidt iiitinlv
satislied with the aceount given of tin tmiiMt.
tioii with the father, ami had seriuii.> ili,i.!,t, n,
regard to the transaction with the sun ; imt Kim-
of opinion that the evidence was insuiliijijit ;"
[irove the account of the traiisactiuiis uu ,ivb:u.
dant's part to be false, sustained Imtli ii,ii',,\.
ances. //;.
H. being indebted to J.!., and botli lnii,;.' ij,
pecuniary ditliciilties, H. made an alisuliui- on.
veyaiice of his land to J!., wliicli wus iutiin'ml
to secure the debt due to 1!., hut was luadi al,.
solute in form to deceixe II. 's c'.eilitiDs. Vari.ni! ]
snbseijuent dealings witli the pliiperty tdiikphia' j
with a view of securing the eiedildr.s nl' l.itli |
parties, and by means thereof tlie iiiteiust nt H.
and 1!., if any, appeared to he a iiiivi; iiiniitvl
charge on the [iroperty at the time ti, fa.s. iitiaiiistl
their lands were given ti thesherill ; Imt - Htl
that the writs bound their res|ieetivc iiittivst.-, J
and that they should be sold in cijuity t(i [mv tie j
execution delits. Hrnrl- \, Smi/, Ki i'liy. "r>|i.
J. A. S. contracted to inirchase fidin .M. ..
credit a wood lot, ',U, ami to secure tlif prit
(t;400| the purchaser's father gave aiudi'tpiui'iil
his farm ; this mortgage not being iiaiil.Wiu]
foreclosed. Shortly atterwards, .M. licini.' -iillj
willing to receive his money, J. A. suM lut :t'|
for il'MO, which sum went to .\l. ; jiart (if tlif ic-f
maining C 100 was satislied )iy delivering t» M.I
a pair of horses I'aised on the farm, v:iliiiil ,iti
0)'2 10s. ; and ^V. S., another smi uf the niviitril
agreeing to pay the balance, L'li7 10s. Tlie laimJ
by arrangement between all the parties, ivia^
conveyed to \V. S., who was imt limre tlua
twenty-one years oiil, if so iiuicli :--Helil. tiiaH
these transactions were, as respects the latkn
and sons, a mere roundabnut way nf seeiimi|
the farm from the crcditnrs nf the father. :i)il
the farm was ordered to be sold tn pay tlieil:ii:ii
tit!', an execution creditor of the father. J/cf
Jjoiiulil \. MvLcaii. 1() C'hy. (ill.").
A widow having by her eoinluet paiteil witM
her right to eiputable dower in favniirnt liC
son, a snbseijnent creditor of hers, was nut eiita
tleil to have her dower, set out and aiiiiliult
pay his demand, though she was nut aware nl lia
right to (hiwer at the time she was said l< lu*l
parted with it. Cultli- v. Mrll,u'il;i, 17 Cli.v. m
An insolvent executed to his mhi a murtgiijj
for iJlOOO, of which §400 was a pretemiea
I is, tliiit il was witV
liciitcil kiii.wkiliiv „•
iti'il ti) till' dimt ,,s
s siilil till' incirt;'n^i-t"
itiii's, Imt till' V(."ii,l.v
.■ (lUi'iiiiHo, it Wii> tli'14,
■ his llUVill;^ Lilll'lnypl
iiis niilicitui- 111 ilrwiiij.
[ licit ni;\lu' till- liiii*-
iidticu 111 tlm vi'inln-.
; ( hy. .VJil.
;(l liy !i ili'litm-iu >;iti<.
I- a ik'lit, il luti.iuli'il 1.1
ivtifs, is viiliil, tlimiji
liiiui'ity til an cxjieitnl
;• il riii-'iijiiii/.uiK-i', T':.
:„( i; Ki t liy. ."ui;),
;illil til llis ilUlllT aii4
fly, \\liieli tlifV uhillitoi
r viiliwilili-' i-iii,Mck'nitiMii.
lie ciiiirt «as iiiiti'iilirtly
lit j:ivuii 111' tilt transit-
(I Iwiil s^.i■ilHl^ ilnv.lits ;ii
II witli tUfsiiM ; ImtUiii:
ilciicf was iusulliiifut \n
lu tv;iiisai-'tiiiiis nn ildeii'
, r-Ustiliufil Imtll I'lillVrt-
11 K., ami liiitli lifiii^ ill I
II, mailf an alisulr.ti- o.ii- j
II 1!.. wiiii'li was iiitiui'a'4
til 1!., liut was iiiiuli' .ill-
vi.. II. 's i-iiMlitnis. Vani.ui j
til till-' iniiliLrtytmikjiliia'l
;-iii'' tin: cR-ilitors d' l«lii 1
thtrciif till' iiitL-a-st >.'. 11.
u'L'il til lie iv iii'.vciiii.iKyj
at till! tiiuf ti. fas. iigiiiirfj
ti tlioslR'i'itl; liut
tlK'ir K
iiL'ctlVi' iatd\>t-,
iiM iiii'iniitytii\i;_iyi
.'/,' V. S<i"l, "> *'">'•
til pu
I'l'hast; triiiii
M. "11
1 1 tl) Sl'ClUV
till
ithergiivL'auiurt^iv
rage
[iiUorwai'
luiiiii-'y
jut tl
nut lit'liig
lis, M.
.1. A. si.M I'.i :i-|
M. ; part "1 till- re-
^,-n,,l l,y ill'livcnll
on tl'if fiiriu,
t.i\U
itUov
1,111 lit' till' i'«"iitri|
lla.icc, CiT 10s. Tlii'iim..^
Ti'cu all the I'lU'tK'S, |v
Iwliii was
Ullt
tliiitt
11 Sll
lllUl'
Ire, as vi'si"
I"'
Lilitiivs 1
lo lie so'
li:--Hilil.tlia|
cts the l:itli«n
lal.i.ut way nt si'i»nii|
the father, luiif
111 tu
■till
litiir of the father.
t'llV.Ol"''
her
iiliii't parti"
.'/ci
I witl
(liiwer 111
favuur I'l iiei
lit.irof hers, was 111
it luta
ir, se
t out anil ai'lihei
she was nil
t aware
Itinie si
saiil t'l lii'i
'.I to his
loo was a p:
',/,/. IT t'hV' 'A
oil a
lllOl'tglll
eteiul
leil
VWX I ' 1 >r LKNT ( '( )X V i; VA N( 'i:.s.
i:-iu
]n. soil, ami •■?liOO a ini'trinleil ilelit tu liis his assionee aj^aiii.st I>, anil ( ','h ri'iuvsfiitative.s
the
..thi'r.
Sim siil)sei|iK'iitly, tunler an ar- in respi-et uf anntlnr iKlit iliie liy < ', tu !!., that.
1 iii-'e
men
;,' til
.it-:i;,'oi'
..t with the father, ti'.insfenril tlie ninrt- imtw ithstainlini,' tin- ililt'eiviiee nf piirtios, the
('., who \vas the hiililiT nf nntes nf the ileeree in the liist suit was liiinliiii,' in thesueninl
t.itl
le amnuiit nf •'■■liOl), w liieh he ;,'ave mi the niustimi iti fr.iiul. Pi
the mortgagee, ami He paul in eas
hIi -S-KH)
„ the nil
\ the nil
I, IS l«ini
laiiii fill'
.litvtii SI
Tt-agee,
(
I linti
if tl
le eliiiiarter
Aih
'i|liaey nt eniisi
lerati
nil is lint lli'ress.'irv tn
I'tL'a^'f. hut the traiisaetinii with him
liile ; Helil, that he was entitle. I tn
the full aiiiniiiit of the seeurity, in jiri-
niaiiitain a transaetinii nmler the \'.i l'!li/. : tl
th.
.liliseii
llellt e.xeeutinli eiei
lite
if th.
mler the l.< r.li/. : thniigh
iH'iilil sniiie eviileme of
Hut .1 eiiiiveyaiiie hy a failier
tn his .'■nil, in (•niif.iileratinii nf an aiiiniitv of less
'111
e inailec|uaev iiiii\'
Itv ki " '
inwleilye,
iiiiirt{.'ai;i"':
Miiwat, V. ('
Tilth
jl,.J.llllM(lll "I'l"
tl). ISt'hy, .-Ml ; ir>Cliy, |-_'Ci
valuf I
Kest tl
th
y'
■n|iertv
Itv I. '
ll, .1.
les net sujj
ivIlnW I
I'e nf a fi'aiiil l>v his
jiiihy
•2-i:t.
.\ii .iisol
it soM himl tn his lirnthei' ; a
I'll-
tili'i
all 1
lal
f the
lill liujieae
hill" till
I ri'ili-
1 frauiliileiit ;
lather, in the same way that acniiveyanee for an
inailt'i|iiate ]iriee to a str.iliu'ei' sninelinies ilnes.
Ill (■
lO.S.
msiileration was saiil liy the i
ilefeii-
A ileeil liv a ilevisee tn ihfeat a ereilitnr of his
juts til he a pi
lir ot horses ami wai^'gnii, i
.f the own, is viiiil against the di vi.snr's ereilitors also.
value of •"<-'ll" : I'Ut the 1
rties had riaiicliihiitlv ■litliii.-^tuii v. Si, mini, l!l ( 'hy, l!'Jl,
jllVtIl I
'till til.
\\k laiiil, an
lilt alter I
liiil'.ses I
lie th.it these hi Uses were
if the Ill-other whn hail liniiLiht
1 ill this wav hml mi
If (II
.'feat
e purpiise ot a sale am! I'lmveyai ■(
is tl
a ereihtnr
till
le sale is, in ei|Uitv, vni
tillaiiil
tlii'rereilitnr>
lielil, that this luutlier
the plain- J,, |,i,„ y,.„^, ^. j;,,,.,,!,,,,,,^ JilChv, •-'.'U,
i-stnli
fiiiiii atteruan
,■ orei
n.iy ; am
that anil
htiir that tin
1, the phii
.'ttiii;,' Up against
A sale
.1,
tn defeat the
•_'(l(l had been paid in that ehiiiii nf .'v ereiiitur nf the testiitri.\ ; the ereditor
litill's llellt lieili!,' le
tl
lan I'eenvered jmlijine
nt a fi'W davs after th
lie
nut, he was held entitled tn a ileeree fnr and liefni-e the piinhase niniiey ; and an linslte-
[siy
lueiit, iir 111 lie
fault
ale nt the land. .)/<'
sful
I flic';/ V
The ruli
1 isa:"!"'
.1/<'.1/"
KS (.'hy. 1104.
<l
appli.'atii
was afti'iwaids made in the.
velidnr's lianie tn enlltest th
ease nf a wife s ilnwer tn a purehaser
1 cdiisiileration f. ir the grant of a reasmi-
lli
in a suit hv a ereditnr
impeaehili!,' the
it d
thi
lie
that the vendee had under the eireiiinstanees no
aUi- eiimpeii;
atiiiii to the wife
iiiaile III ma
tide is va
cwi
ilitiirs.
Fi
si V
lill
I All,
III sueh a grant
st the hiisliamrs
eiiuitv tn he allnwed tn emitest the
rk; IS (.'hy. (ill
A eniiveyaiiee lietweeli
dehti
]iai'ty liiiiia tide, and Inr v.iliialili
dgnient. ///.
• and a third
uisideration
d in a iiioi'
ti'age of her husliand's "hen the lunperty wi
a liian nt niie-tnurth nr m
-fifth
A wife jiiiiie
i tstate tn seelll'e
..i its value, and he suhseiiuelitly s.ild the prn-
I wrtv ; his wife elaiiiied dnwer, and refuseil tn
I i„i!i in the eoiiveyaneo witlmut a reasmialile
(..uilieiisatiiiii. Her right tn dnwer lieing slippnsed
kail imrties to exist, her husliand had a pieee
i.i kill eimveyed to her, wliieli- she aeeepted,
laiiiltliereiipiiii she signed the enliveyanee. The
Itraiisiietinn appearing tn have lieeii fnr the iii-
te.<tiif ereditors, it was held to he valid, iiide-
[irti'ieiitly iif the i(iiestiiiii whether her elaini tn
1 j..\vii' wiis well founded in law or not. ///.
Ill .hmuary, 18(10, a debtor assigned to ceiiaiii
Icrt^litiivshis interest in land under a eontraet nf
Ifurdiase : the assignment was made absolute in
[tnnn sii 1V.S to deeeive other ereditors ; but the
Ifiirpise lis between the parties was merely tn
Ifttiiie the llellt due tn the assignees, ."slmrtly
Ijiti-rwui'ils the assignees, with the deblnr s eon-
Ikut, hail an arliitratimi with the veiidnr in
\k!\\A 111 the eontraet, obtained an award for
|Sl,rtRI ill lieu of the land, and reeeived the
iiiitv. In 1S7I a bill was tiled by another
lirt.htiir against the debtor's administratnr and
Itlii assignees, for payment niitnf the .^l,(i()tl, and
|;tKa>-Hehl, that the plaintitl' was entitled tn
i.ii iiaynieiit : that in view nf the fraud and
Itriist, tlielinise of time was no defenee, and that
Ijliill against the assignees by the ereditor, instead
pi liv the adniinistratoi', was proper, dilliis v.
Ifc'. lilChv. .•!■-'.
intended ti
I"
iml tl
ic
illsiileratlnll Illnliev
:i i:ii
laii
Held, valid under
It ot
11/. I.-, .), liotw ithstaiidiiig that the intent
the parties tn the transaetinii was tn defeat a
ereditnr whn had nbtained jiidgiiieiit. JJnlijIi-'li
V, MrCiir/li;/, I!) Chy. ruS.
Held, thatabiin;\ tide luuehase f rnni a grantee
whn had given im enusideratioii, and who had
taken a eniiveyaiiee fr.uidiilent against erediton-;
under the l.S l^lix., was valid, imtw ithstamling
sueh bulla tide purehaser had lintiee ni the fiiMiier
fraud, and puiehased the property with a view
., nf carrying nut the intent t.i defeat eroditnrs.
I Spragge, V., diss. //•,
The iiei'snii Upon wlinin a robbi.iy has been
eoniinitted is, e\eu before enii\ietinn, entitled to
be eniisidered as a ereditnr lA' tlie party eoin-
niitting the robbery, altlnmgh the I'l'inedy for the
reeovery of the aninunc may be suspended until
after eonvietinii. Where, therefore, a jiersnii had
felnliiniisly pnssessed himself of eertain .securities,
and invested a portion of the innliev reali/.eil
therefi'niii in the purchase of real estate, the
conveyance nf w liicli he prneured tn be made to
his wife, in nnler to its being jn-eserved in the
event of ]ii'iiceeilings being taken by the party
I'lilibeil, the court, on a bill tiled by a subseiiuelit
creditor, declared the conveyance void as against
creditors, under the l.'i Mliz. c. ."). Hi'nl x. h'lii-
Hill;/, L'l (.'hv. Si).
hiasuit hy a ereditor, .\., and his assignee B., 2. I' mh r /.,' Kir..
ltd I mmee payment of a debt due by (.'. out of
■till: iiriiteecls of eertain property assigned by C
|Vi h.. it hail been declared that the assignments
lert iraiiiliilunt and void against the plaiiititis
'i tin suit :-Held, in anotlier suit by B. and
r
'.ii;
C. S.
r.c. i: .'>:.
(a) (,'iiiiritlli/.
}>{. sold goods to v., and took back a mort-
age on theiu for the price, together with I'. 'a
<!■
f^^TT^W^'
H'l ; ,
irii).')
l'l!Ari>rLKXT (ONVKVANCKS.
I'liit)
lUtltT-
*ii)te. Aftcr.v.'inlM. and aftiT i\\v ■_''J N'ict. o. 111!, WiukI c, hixic, 7 <ii. l'-. S!'-, was a ms,. ,,|
M., who was tlii'h iii.-cilvi'iit, iiH.sij^iioil tlio iiiurt- t-iicL', iiiid elms luit ilctidi: tint tin. int, ut
gagu t<i I'"., and l''.'s u;;t'nt ivri'ivi'd jiusMi'ssidn nf dulcat I'l't'ditoi's is not cnnniialilc iiitu, in^-m. i
tliu yoiids, most III' Mliiidi, if not all, liail liuc:! the nalc was lor i;ip(id (■(inHidciatinii, mul jpj,,. i ,
oiiginally |niii'li:',Mfd liy.M. I'lcini I''., and wi!ru ' '' "" ' '' - '■
Htill iinjiaid I'of. 'I'lii.' goods lia\ ing liccn siiztd
undiT an (.xucutiou aj,'ainst M., an iiiti r|pKadir
issue was dii'i'fti-'d liutwiun V. aii<l tin jiidnnn'iit
creditor illilil, tliat the as>ij,'iuneut of the
mortgage t<i !•'. was void iiniler ■_'"_' Viet. e. 'Mi ;
hut tiiat, |uittiiig it aside, M., as iiiort^j.iyee, hail
no interest which could he sold under execu-
tion, and that 1'., therefore, having (lossetision, a pn feienee, the sale was void, ii
to pass tin: iir(p|H'rty ; Imt, Senilpje, it w,,i|
he sustained here under the |iro\ iinial j,|.t,\v||i,.i"
liroilihits |ireferences, I'er .1 . W'ilsiiii, .|._ il'nj .1
jury shoidd have lieeli furthcM- dii'ii'tnl. tli.it .'i
the vitndors were at the time of sale iuvih'.,.
or knew llieniselves to he on tjie i-ve nl m^,]
veney, ami niaiie the sale with intent t" ilo;, it
hday tlieir eriMlitors, or to ;,'ive .,iil. ,,v ni.'i.,.
or
- - . • . . niless mud,.. ;|,
was entitle<l to hold tlie j;oods as against the the onlinary course of tradt' to an inii(n.Lnt 1
execution creditor. /''/■/•(/ v. I'lni/mni, 19 ().
i!. •-'»!.
iir-
cii.iser ; tliat a s.de nuiy l>e liona lidi; as (iIiik,.,.,!
to colourahle, and yet Voirl hy ( '. S. 1'. ('. ,. .y
s. IS, if the intent was to contravene its |i|',,"i.
sions ; and that the ([Uestion for the jurv is ,. „
it made with that intent. Jli.
Held, alHnuing the ahove .iiid..'niont. tliiitMidi
sale was valid ; lait if tiie sah/ liad lnou nmk
with intent, hy vendor and |iur(li.iser, tn iltiVat
_ or dtday crcditorn, it would iiave hirii vii.i
in (luestion would not, tliough inaile Imuu'i li.le with the intintimi „f
iin<ler tlie evidence, have constituted such an act passing the property. X. ('. 'A \',. &. A, 1114.
there. 'I'lie wonls, "in the ordinai'v course of
lnterplcadi:r issue to try plaintilV s right to
property .seized liy tlu' sherill' on executions
Lssued iiy defendant against ('. The plaintill'
claimed hy piircliase piioi- to the execution ; -
Hehl, thiit under < '. .S I', ( ', c, L'(i, s. IS, a sale of
goods tor casii would notlx' void, where a similar
Hale would not he an .1 ' of hankruptey in Kng-
lainl ; and tiiat tiie sii
Semhle, the 'J-J Vict. e. 'Jd, has unt alttii'ihlie
law except as to preferenti.d assignnieius. I/,/.
c((//'v. A\, /■(,-, SChy. If'.L'; 7 I.. .). ■lli).
To inaint.'iin a sale inipeaclieil hy eivditurs. it
is not sullicient in this court to pmvc tli;it tlit
transaction was really intended tn p.iss tln' m-,,.
)ierty ; for, as laid down hy the ( 'imrt nf Kir.,r
and Appeal in( iottw.-dlsc. Mullmllanrl, ••.•iltlinu.'hl
the s.-de may have hecn IkjUh liile, with iiittiitto J
\pass the property, yet if made uitli intunt |.y[
Vendor ;ilid puriduiser to defeat and ileliiy civli-'
tors, it would he voiil." .\h ,-i'liiiiil.< i'n'iil: ,i(\
Ciiiiik/ii v. <'/(ir/,-(, lS<'liv. ."illj.
trade," &c. , were inserted in our statute hy way
(if greater [irecaution, to ]irotcct the ordinary '
dea)"ngs of jiarties having mutual accounts, where
the ))arty selling was not known to lie insolvent.
Held, also, that the evidence clid not shew ('. to
he in insolvent eirciinistanees : that the judge's
chai'ge was virtually to the ellect, ''that if ( '.
had sold his oidy horses when as a farmer he
needed them, .md w hen the sale so made wouhl
imply a sus[iici(in that tlie same was m it in tln'
<iniiuary course of dealing, and if the plaintitl'
liad then purchased, the sale wouhl not have
heeu hona lide :" ami that such dirccti<in was in
iieeordance with the statute. Tin r\. //(irfi-^mi,
,14 C. ]'. 44!t. i A trader heing insolvent, at a nicctini; ni lijjl
A sale or conveyance hy an insolvent, though i creditors, entered into .a written ajirounitiit tol
not in the onliiiary course of trade, without ■'^s^'.^n to tru.stees, for his creditors, , 'ill lii.s pin
intent to defeat or delay I'reditors, or to give a I'^'i'ty, (except certain policies of life insinaiitcH
preference, is valid ; for the intent with which :""l "" the second day after he execiitnl thej
it was made must govern. ^'o/,'/c,(//.s v. J/ii/- deed agreed upon, which the trustees uivt|iti-il
liiitliiiiil, lo ('. 1'. {>•!. I and several of his creditors exerutcd it. .Vlttr-!
The last clause of see. 18, c. -Jd, C. S. U. (".. i ^V"''""* '* '™'* diseov..rcd that ,.n the day h.t uveal
a.ies ...It avoid all eonvevanecs l-v an insolvent '. tl'^V'-''^'^'"'^'" t" assign and the executinnn, thd
which are not for the henelit of ere,litor.s, or , •V«-^'«""''-'!'t, the dehtor ha,l sold a valuahk- i-.rj
which are not made in the onlinarv conr.se of i *"""• '"^ ^'"^''^ m trade at a cmht nniian/
trade to uiuoccnt purch.aser.s : it merely excepts 1 "7^'' *'"'^'S' J'^'"'-*' '""' '''" '^"■^I'V"' ''-^ "I"""7
the eases therein mentioned fnun the operation:*'"' 1"'!"">^^S'"\V ""tcs ot the purchaser.
of the antecedent portion of the section, hut does
not invalidate other transactions within the ob-
jects of the act. In this ease the execution clehtor.s
cm the eve of insolvency, and after service iijion
them of the w rit at the suit of defendants (the
execution creditors,) sohl their st<ick in trade to
the \ilaintitl', w ho knew that they had lieen so
sued, taking from him nott's payable in one, two,
three, and tour years, for the puriiose of dividing
them ratably anuing their creditors. These notes
were accordingly accepted by the creditors, with
the exceiition of defendants, who rejected them : '
■ — Held, that the jury were properly ilireeted to i A preference which a dehtor is iiidiuuil t'>i.'il
support the sale to plaintill', if they found it made ! by threats of criminal or other iinnuoih";;*,]
bona fide with intent to transfer the property to ; not void uiuler the 'I'l Viet. c. Ill), or the In*
lihiintili', and not eohuirable to protect it for the i vent Act of J8(i4. Hut to sustain the iivLleiviid
debtor, even though the eti'ect might be to clefeat the pressure nnist have heeu re:d, aii'l miti
the tlefendant's execution. Held, also, that save i feigned contrivance between the dehtnr ami it's
as to the provisions in our statute against prefer- itor to wear the appearance of iircssuri.'. ii'i'
ence, it is substantially like the 13 Eliz. c. "). , mere purpose of giving etleet to the dulitcust
Tlk-n
upon the trustees tiled a bill to set aside this
as fraiululent and void as against them ;- Hdil
that the trustees being in the [MisitinM "f imw
chasers, coulil claim only such rights as tb
debtor was legally entitled to at thui'xociiti"iiO
the deed of trust, and that the sale lieini,' hiiidj
ing ujion the debtor, ami those chiiiiiin:.' iniil
him, the trustees were not entitled t(i the iilia
prayed ; but, .'^cmblc, that this sale .vmilil UM
have been sustained as ag iust ;i jndgiiuiit crtdj
tor who had sued out execution. .I/''.'/'"'
(.'lure, 7 Chy. ri.'iO.
I tint till' iiitiiit tu
rulilc iiitii, i'\i.ii«lini
uniliiiM, iuuliiiti'iuifil
Sriiililc, it wniilil ii„t
' \iliivilU'iulu(t,\vlliil|
l.WilsillI, .1., tillt till;
rtlu;r iliiii'ti'il, t!i;it n
iiiu 111 •■♦iili.' iii^iilvtut,
le oil the iivi- ul iiiMil.
willi ilitiiit t" ikli;,>l
• to jiW'^ "IIU 111' lll'iT':
Viiill, lllllfss llliulc 111
lU' t(i an imicicwit \m-
IC Ipillll'l liill' lis ii[ilni-c(l
.iiiyc. s. r. ('..•.•:(',,
II fuiiti'iivi'iif its iiruvi-
iiiii I'lir tliL' iurv is, \v,is
II,.
ivo jiiiiu'iiu'iit, tliiit>mk
lU si'ilf luiil lui-'ii iii;i'U'
nil liUi'rli.i^t'V, til iV'iiat
rtlllllll IliUL' llUUll Vniil,
with tliu iiittiitiiiii ni
<. c. 'A v.. & A. m.
'. 'Jd, lia ; lint iilti. ri'il the
iiti.il u.-^iuuiiK'iits, .I/.'-
ifj; 7 1.. .l.-iTO.
iqiu^icluMl liy (.■lY'litnrs. it ]
is (.'(inrt tn in-iivi' thiit tlif
lltciwll-'ll tl'lMSS tin pi-
ni liv till' t'liiirt "I l>i"r|
,r. M'u11iii11:uii1, "ultliiiuAJ
1 lidua tiili^, with iiittmto|
if niiiilf vitli iiitout liyj
to (lutY'iit iuiil iklay iivli-'
d," .1/. ,v7/ioi/.< l'i"«l: '/|
( 'iiy. .")".U.
lit, lit a iin'i'tiii;.' »t liisl
I writti-u asivui-nitiit toj
lis civilitm-S all liis \<h<
Hilicics (it' lilV' iiisiuiuia')!
,• lifter Uf i:xoi.'Uti.il thel
I tlie triistufs lunl'ti'ilJ
,,vs L'Xci'Uti'il it. Altir-f
il tliat nil tlH'ilayl"!tt«fti
mill the. xwiitiiiii"' the]
;iiul sold a viiUial'li- l""-)
iilu lit a I'vnlit nuiiiii
ail acofiitf-l as suriiritjj
f tlio iiuirhusi-r. Uni*
L bill to sot a^iik' tln-.i
as aiiiain^^ttlR'ia;- ll'l'
J, infill-' iMisitiiiiH'i 1'"
iTuly siii/li "gl't^ •'* '"
tliurxi'i-'iit"""'
l.V.ll
»il
iii'iii'
tkil to at
that the
liui
I those e
J not eiitit
Ithat this
W liiMiij; I'll
laiuiiii.i: mi
!vil tu the vili
<aU! .V'lU
liUd
inst a jii.lyiiH'iit .veil
loxocutiou.
MrMo
(lelitor is iuiliUTi
i or
iithiT l>l'"
Vict. e.
!1(>, 111"
to sustain
the 111-
It'iglll
lings,
the ins<
.icrciiq
loeii I'l'i'
Iweun
Ivaiiec o
theilelitiivai
f liv
ml irt
essure.
e»ml iiiteiitioii to mvo ji juvlL'ivimu
,„.v, Ojiii-ri->"; ll! (Miy. ."147.
\. til I'uiiveyaiii'i'n iniiile iimU'r invsmnv, sou
fiirtkr" lUN^'iiri'ivv .vni> Is <oi.\ Ksrv," ii, 4'U).
(ll' III/ H'",'/ ';/' I'l-i/i !•: iirr.
II,. .V. N'l'l '" '*• '''" '"'•J'''''*t i" eel't.lill I mil,
.1 r,. lit'iii" an am unit ilii;.' t!ieiVMi;i toolitiiiiii
i'^ pirt'ol whi^li A., uuil the rem liiil.T IV,
^.',.'lii \<\y- '*• .-''^'^ *': ■^- l'-''"'" |l in'oiierty
iiitli i\W. anil amou^' it the hor.-o in i|iiiitiiiii
.itliisn'i't) lor hi.s interest in the laml; lint ti
Lure the iiaymont l.y A. of hi.i sliare, (f4-J
"iiij 4,1.,) 15. took Iroiii A. 11 iiiortm;,'!^ on the
liirse An c.xeiution Irivini,' been issue I out of
t'li'/nivisioii Court ai,'iinst A., tiie Imrse w.i.s
,(,|.l iiultT it, aiiil luireliaseil l>y the iilaiiitili',
j, ii^.ji,,, iiri'seiit anil iirotestini,' a^j, liiist the (<;ik'.
Ji viilni'i|iie:itly pit peic'ilile imsses.sion of the
liiirsi', mill tliis'aetioii of iT|ileviii was lirmiLtht to
j,,.",j,', jiiissessioii of it from him, the |il lintilV
I'thiiiiiiig it miller the Division ('mirt s.ilu:--
' HtM, til it the mortga;,'e win not voiil, as liein^ h
I mit'ivntiiil assis,'iiiuent nu'ler the IStli seetimi
'ii'tlit'l'' ■'^' ^'' *'•' ^' "''■ '*' '''''".^' '•■ '■'"nteiii-
iiraiifiiu.s security for the inirchiise money of
niid'tv taken at the time of the sale. Hox.i v.
11:11, thit a tiuirtgv^' liy lui insolvent, or l>y
KffltiiiatiiJ fvo of iiisilvuuey, exeeatel iliuler
I'llAllHI.KN r CONVKVANi'K.^.
t'lciu-
l.")',)S
I prdiiir
. hv t!ij creilitir, as for iiistinee, a threat
[ij jtriiiiiiril iiroseciitiou, hat j,'iveii to seeiiro a
|M.«istiii,'ilel)t, was uiit a fraiflnleiit pivfer-
ta.viiU'loK'. S. L'. 0. <;. '.':). s. IS, the iircssuiv
l»liv'mttiir,' the luvsumiitioii of a framluleiit
■JJViet. c. 'Ji. ; U. 'I'h it the solicit ir of ('. must
he restrieteil to the costs iii.'Urreil liy him in this
iietioii lirouj,'ht liy (1. a'.^iiint I'., ami that ll.
must st iiiil as nil onlin iry ircilil ir. /'./c/i/som
V. />.//■/' /s, 1,-, t'hy. ;U7.
M. I!., ail iiiimarriul woinui, ii-iilel forsmin!
yells with her sister iiml liiother-in-law. Ho
hiviiii; ll 'i.'iiiiK' iiivolveil, eiinveyeil his real es-
tate to M. 15., for the !illej,'eil coiiiiil. •ration of
wa^'es due her lis a hired servant. Not.'s wero
also mule and jiiveii to .M. 15. liy her lirother-iii-
I iw ; mill, on tlii'se liotjs lieeomin.;- due, jinlg-
meiit WMs (lilt lined, under w'.iiih M. IS., sold tlio
f.irm stock and other (lersou il ludperty of liur
lirotherdii law, liec inline; herself the iiuicli isoi*.
The evid.'lie,; as to hoiri lidi's ami ,i;oid c msidur-
atioii forth; tr.iiisfer of tlu land and gis in^ of
the notes was nusitisfactury, an I tlu' eoiivey-
ii'.iee w.is sjt aside as fr.iii Inleiit, at the iiist iiic,'
of the oreilitors of the ),'i',intor. JJiH v. /inllnii-
f/l,ir, II Cliy. I<)!l.
Th' \12 Vict. e. 'J'i, s. IS, iv/iinst ]iri'ffre:iei!S,
does not apply to a eoiiveyanc" of real estato
sold liv th'j di'lilor li'fore his insolvency, hut
II it pill for. C.irr" /''rr y. fHrri'', liK'liy. IDS.
A pL^rsou in otu') vrr issed circum^t luees ap-
1 jilied to one of his creditors to si^iply him witli
i;oods to eiiilile him to e irry on his liiisiiiess,
i which th'J ere litor agreed to siqiply on olit lining
neeiirity therefor, as also for his )ire-i'xistiii,L,'del)t ;
and a chattel m irt;,'!.," for this purpose was ao-
cordiii',dy ^'iveii, and t!ie goods supulied ; — Held,
; that this WIS not sudi a iir.'ferenc ■ as reiiileroil
tlio ehitt'l 111 irtgige v.iid. /i''<,',' v. S/ninaii,
•J I Chy. -'.-.0.
tfuct to the iWl'tel-
liDt^iitiiiuiiii the ii.irt of the delito" to prefer the I
r. 'I'iiJ intent with which the iiistriimjiit
|-i!:nveii hein,' a niiestion for the jury, the cir-
l(!iiniti;i;.'s of pressure attending its execution,
Idi'litiiottii lie «'itli Irawii from them. Hnnhiif'
lW.iV, .l/'--/>-''.7'''. l'''^'- I'- -t"">- ■ I
.\ m irtgii^.' of chattels to a uruilitor liy a per- '
lijiiin iiH'ilv-'ut cireumstiiiee^ not made with'
ltl(iiit'iit uf giving such creditor a preference,
Vs'iinmljr pressiire, and t > olitain an exteiisiim
If' liill.', uailer the exjieet.itiou of lining tliereliy
laulilolti pay all his credit. ir.s in full, is not
IwltiiiikT the J^ Viet. c. 'JiJ. Ourdoii v. Ynuwj,
lliChy, 318.
IViijKivtire p iliey w.is after a loss verhally
Isii'^o I t'l a creditor hy ,aii insolvent person, in
liitistu'tiim iif a deht not yet due, and in eou-
|tiler,itiii!i III aa ailv.mej of money at the time,
i<i.;iiiii 'lit W.IS held void, as a fraudulent
.'i.v within t". S. IT. (A, c. e.i, s. IS. TIk-
MniMMr^'dx. MrTiirUh, KH'hy. .S;!.").
I'l. ra'iivcveil a ju.lgiucnt against I)., and iiftor-
Inriis tliiiiigh insolvent, assigned it liy two
|e-'i:'.i:iK'iits tu his attorney, one for costs due
llimi.iyli. ami the other for a delit due to It. liy
|(i. Aft-i'v.anls, V. olit.vined a judgment against
B.,aii:latt.ii.'lieil the delit .so due to him liy I).,
|»li;.>vi,' iiiitice of the attachineiit to 1). lieforo
mLs-igiii'i; uf (!. h'lil given notice of his assigii-
K'Jt, It. jiiiil the moiieys duo to (!. by himself
IHit slicritr, miller an execution is.siied at the
litiiici'iif the assignee of (r. :— Held, 1. Tint the
We iatt uf (_'. having been the lirst to give
Wi'iulil nut entitle him tu priority over the
KfflKiil (;., hut that, by reason of the insol-
Nityui (i., the assigniueuts wero void nudor
1 1. .\s AiiViNsr I'l i!ii; AsKiis.
1. (I III full II.
[,S'.- .;/ Vr-t. ,'. u, o. I
A dejd purporting to lu a deed of barg lin and
silo, but C'lntaining no stitemeiit of e.iiisidor-
atioii pLieuniary or otherwise, and no sullieiont
proof of c liisidor.itioa alinndo : -Held, void in
liw agiinst a bom lido purchaser for value at
sherilV's sale under jiidgmviit and execution,
although the jury h id by their verdict iicg.itivoil
any fr.iiid in fact in the dee I expressing no con-
sideration. J) I ,l',-iiiul;\iiit V. .l/cf '/•((■,(!(>., S. r)02.
A debtor after judgment an 1 cxueution against
his goods, hiving convey v'd cert.iiii lands with-
out considi'r.itioii, which \vi h.'ld as tlu; legal
owner nil lor a deed cont lining no declaration of
trust, and the si'ii; lands having li.vjn sold un-
der an execution siiliseipieiitly issued agaiii~t his
lands, the court held tint the deed, being a
volunt.ii'y onveyaucj, wa.s fraudulent and void
against tlrj sli.'ritl's vendee. Do- d. S!n4 v.
Mrtrill. .M. T. (i Vict.
A deed male by one brother to anotlier ill
CDisider.ition of natural love aiil atleetion, i.s
void as against a sub ;;!i|ueiit purchaser from thu
gr.iiitor for a v.iliiible cmsideration. /> ii; d.
r/i!iij>)ti V. /ii'iiirini,!,/, 1 q. 15. :5.-,().
; Held, that under the special facts s'.'t out in
this case, tlio deed of the defendant, 15., to tlie
lessor of the plaintitT, was not to be reg.irdod as
voliintvry, under the •J7 Hli/.c. 4, nor would the
deeds sulise.piontly executod for a valniblo con-
sideration defeat it on that ground of objection.
I).,' d. Stifjhrd v. Bn-'ib-iu-ilf, 1 C. P. 41)2.
it
inr^
m
l.T.)'.»
FIIA I • I >r l,KNT ( •( >\V KVA N('KS.
A ili'i .1 )iy till' lii'ir atliiw tn lii.-t liinflicr cif
ciTtMiii IiiiiiU ill lifii "f iliiwi'i' Im iiiit til Im' roll-
niclcrfil ,i« vuliiiit \iy mi'l t'rni'liili'iit M;„Miii><t miiIi
M('l|lll-llt |ilIli|||icr.-< fur Vlllllr, \c., llltl|HUt;ll till'
l'(ili>iilri;itiiili ^•\ll1•l•^<.'^^•ll in .xiii'll clccil lie iiliHli'V,
mill nil iiiiiiirv ill tart III' jinivi'il t<> liivc beuu
IHlill. I'llhlL V. Iluilhlillnll. t C. 1'. I'J.V
A, ciiiiv.'v-i witliniit fiiiisj.li'r itiiiii tn N. W. a
lot, 111' iiiiiil, wllii t:ilvi'S it ;illil I'l'lilililM ill ]Mwsi'T«.
Riiiii Hiitiii,' \i':ir-i, mill li'a\i"<. A Miilisi'i|iii'iitly
(.'IlllViys tn 'r. \V., I'lir V.lilli', till' s:mir l.lllil.
I'liiiii H I'l iKif 111' iiiiiiiit'> Mi'i.sii' i|iii' iliiuci', ill an
ni'tiipii fnr iliiwt'i' l>v till' wiilmN nf N. W . aiiaiii^t
T. \V. : Hi'hl, tliit till' lii'.-it il.'i'il, l.iiii:,' with-
«iut I'linsi.li'iMti'in, was friiiiliiK'iit an a'jiiin^t tin'
scciiml, mill til It til" I'l'iini Int' iIumit n'stint,'
liimn till' Ht'iMJ'i iiiiilcr it ^va^^ not MUstiinaMo.
WiUnii V. ir;/v,//. H r. \\ \:\
A inilitnii'iit I'l't'ilitiii' i.-i imt a piiri'linsin' fur
Viiliio ■rtitliin till' "JT l')li/. c. l. Wil/ci/ii'' v.
\'iiii IC'jiii'iiiilt, (i I'liy. 7^',^'^.
A \ rii'li'i.' lit' t!ii' ci'iiwn ni'ii't-'au"il his intiTi'-it
tn a iHT-ioM. wlidtiink liiiiii IliU'. A r'ti'rw.u'il-i till"
viiiiiii' iiiaiK' a si't'iiiiil aMsi;iiiiiK'iit t'nr a nnniinal
(■nii.-iili.'iatinn nt f'Jdd, Imt no inniiry in fait
liassril, tlic ciinsiiliiatiiin iiHiitii)nril lii-iny iii-
ti'iiiti'il tn riivi'i' till' aiiinnnt wliiili till' a^isij^ni 'j
Wiinlil III' iiiilinL'il tn [iiy till' ;,'iiVtinilH'lit till' till-
lialaiii.'i' iliiL'. On a liill lili'il liy the nimt^'a/Lii'i' tn
sft till' >iii)iiil rniiv.'V iiii.'L' a.siilf : - IIl'IiI. that as
against the jilaintill' tiu' .xeoninl ilufil was vnliiii-
tai'y : ami even if it hail lieeii rei,'i.stei'eil iiniler
the st itute reijillatiiiL; the tale ni einwii laiiils, it
■\vniil.l lint li'ive pievaileil a;4aiiist the prini' in-
eiiinliranie oi the plaiiitill'. ilnr.-ihh v. K'lini,
•_»('hv. (IT.'J.
As j'.^'aiiist a ]iurelriser tnr value, a vnluiit uv
<lei';l, anil imi'iinrtiiii,' tn hi' sn, thniij,'h re^jistereil,
is vniil ; aii'l as this nlijeetinii will avail the pnr-
vhasiT in any ]Pi'nreeilin'^' ailnpteil either liy nf
aj,'aiiist him, this eniirt u ill imt interfere tn re-
innv.- the registratinii nf the vniil ileeil as a elninl
on the title, /lur/iinniii v. ( 'niii/iln II, \\{ 'hy. Iti.'l.
Tn ejeetliieiit, hnth jiaities el liliieil the title
thrnllLfh line X. M. The ilefemlant eniiteinleil
that a ileeil fl'iilll N. .M. In CkA. .M.,ilateil
I'Jth Se|iteiiilper, IM.'i.S, wis vnlimtai'V, ami Ihere-
fiiie \iiiil. The jiirv liaviiii.' I'miml fur |ilaiiitiir,
«lHin nintinn fnr new trial : - Helil, that tlie ileeil
eiiiiM niily lie vniil as ayailist a suliseijueiit jiiir-
elnsi'r fnr value, ami that iiiasiniieli as there was
eviileiiee tn shew tint ( '. >V .1. M., wore in pns-
sessinii nil the .'{Ist nf Aii',qist, ISItH, when N.
M. eniiveyeil tn A. II. .M . tliinuuh whnin ih'feii-
ilaiit elainieil, the ileeil tn A. II. M. was tliere-
fnre vnjil, ami he was eniiseiniently jireeliuleil
fi'iiiii siyiiiu' the ileeil to ( '. \' .1. .M. was vniil
liee ilise vnjunt.irv. Wt'llifw /la il'/r(ir"< it <il.,
i4('. ]'. ;{i;o.
A iniiiin,' lease fnr !>!( years containcil provi-
simiH eiialiliiin the lessor to ileiiiand, at lii.s
nlitinn, a my ilty lllinii the jiroeeeils nf the liiines.
or St, ODD in lien nl sueh myalty ; the lessnr had
not e.icereiseil siieh n|itiiin : — lleM, that the lessee
Wivs a piirehiser fnr value, ami that a jirinr vnl-
niitary eoliveyanee was vniil .'is against him.
Ctiiil'iii V. L'liini; l(i(-'liy. .'')4I.
Tho\"iiliiiitai'y('nnveyaiiee.s Aet, IStiS, ,SI Vii t.
c. 0, (). , give.s ett'eet as ,ag;iiust snliseiiueiit jmr-
chasers to prior voluut;iry conveyaueej executed
lllltir.
in ynnil faith, and tn tliein mily ; im,]
ennvi'Mlliee tn a wife fnr tl'e "plirpii,,. „f ,,f„,
ing innperty fmiii eri'ditnis, «a, |||.|,| n, ."
gnnd aitaiiist a Miiliseiiiient limit 1.,, ,. '
tnr. Iifli'inhiiii w .ii'iiiihi'/, , Iscliv 'il"
III. il\ .M Mini Mil: Sirrii:Mi'ST.
(a) //./'..IT .]/„,
'■".!■
I'l.iiiitilt' was M. Ill ill liiw 111' Mill
!•., Using liilf nf the saini^ i
'^■^''1 with ,,|,
"'1'' I'llnl ill
had made arrangements with the expiv,, „|,
nf putting.!. It.'s I'l-iipi'l'ty nllt nf ri'iidi nj'i".
t.iili enditnis. I'art nl 'he eviijen, ,. ,„||||j„| ,'"
thispurpnse was a .settlement uf .1. Ii.'sn.,,],.!,,
prior to plaiiitill "s m irriage witli hin i|;u,!!u",
In an aetimi tn try the title tn e rtii "
allei;iil to have lieeli ]iliiili:i.si
shelill's sale nf ,1, I ). 's guilds, it
the piirehase money paid hy pi ijntiif hii.l
eleilited to liiin nut of the sinus p.iy-llili. j'lvil
till' tn annther estate, and in fart wnit ' '"'
111 the elaims mi .1. |). : Ilild, I. Tli
if the seltleliieiit was adliii-.-iilil
1111 ,,
\ l.liUlltltt ,
'l'l;;:nvil tli.|i I
■11
III ivli,.f|
iiti'vi.i,.:,,,
jury rightly found a.,'ainst the pi i'ii"tiii','!i ';,"|
Cinh V. Iliiiilnj, 7 ('. P. ;(.Vt. i
.Mthniigh the ennsider.itinii nf iiiai'ria"i. i*„|.«
nf the must valualile, still a settieimait imuii tUl
' marriage, either nf the settlni nr liisiliij,! j, jij^J
any other eoii\ey;iiiee, lialile t'l he iiiMit.in.lu.,i*l.
void under the statute of |':ii/;il„.t| , ,j'j
grniind of having iieeii made tn liimliT ainl,
ereditiirs. \Vhere, theri'fore, a iiei'sim in ,.„,
^ liarrassed i;ireiinist:inees liastelieil tlii' iinir.,
j of his daughter, an. I eniiveyed all in-, ivil,.',
I tn a trustee fnr her heiielit and the i>.,ui. i,i t
intended marriage having .st.iteil tn tlifs.ilK.it,
^ «lm pi'i'pai'ed the eniiveyaiiee, and tntlu'tribti
that his nlijeet was tn prevent his |irii].i rtv ti
lieing sei/ed liy his ereditors, ainl tlur,. li'i-iu,
strung presniiiptioii th:it tin.' iluightrr aii.i i
intended husliand had alsn liein iiiliinin..i|,,| tli
nlijeet the eniirt, uiiiin a hill lile.l hy a jii
liieiit ereditnr, against the hiishaml aii.l wifi.a:
I their infant eliildreii, tn set aside such .,ittl
' nu'iit, deel ireil tin- same void as a^'aiiM (\-i
tors ; iintiee liy the trustee iti th.' irainliilt
purposes of the settlni' huilig .>iilli,.ii..iit ti. li
the issue of the niarri.ige. Tn sueh a hill i'
settlnr is lint a neees.sary ]i;iit\. ''.,/«„„,,
/).'/(/' './■ ( 'inimlii v. ( './o/v, 'il ( hy. ."I'.M.
A meninraiidiim was prinhie.il |i,utlviK>trivl
liy tire, tn the elt'.i.:t th:it W. uii.li'i't.i'nk fiiM-'tij
the pmiierty nf iiis intemled w ife a.s lioi'.
iaiis slnmlil reipiire ; this prnveil tn hj In I
handwriting, and tn have lieeii seen in a p. if*
.-tate sinee his decease, and, as the \vitlii.- '
signed liy W , and th.it lulmv t|
I' he V ! pi'iuii nd I'lail a ]ia|.!!
' ■ iieinnraiiiiiuii Went, tn it. .in
le wife's property was all ;
•v-eeils applied i W. tn the |iiir]iO
.i.iiuess, who suh- iitly. amlwiiiiel
lieved,
niarri.i
ilar, s.
til. ■
; ui!
jof
i 81)1 1
)iolie\
iksaigued to the . i.sliier
I the hie of liiniself, (W.
Ill a haiiU
, ) ill trust,!
Sllf tllf
p.iy eert.iin h; -. of his in the liaii.
and then tn lii.i.l the limiieys tn
the ]ioIiey for the lienetit of his \\ i
Imt ill tile event iit W. paying
ru-assigii the pnliey tn liiiii, nr
apiKiint. W. having died, the tni.itff real'
the insurance money, paid these hills, anlclaii
V receivi'l
ami diii
If the V
as Ik' >..
iiuly ; iiii'l .ivnlimtiry
ihi' \im-|iiiM: iif |,r,,t,.Tt.
ii's, «,!• MA m.t t„U
it iii(irtu.i.ii' tn;i,r,,|i.
tii'f , isi'iiv. .M'.'.
ll'iHl
ri;.\ri»ii.i:N'i" rn\\i:v.\N('i:s.
K.02
;i'. M rnr.MKST.
w 111' ainl liw'il ^^irl\,,|,,
• Hmill' Mh'Hl, illlil ll;.i
will) till' l'X|ll'l'»» nil].,'.
■vty "lit 111 icikIi ii! m.
Ill' I viiliii' !■ .I'lmitti.l ii.t I
mint lit •'. I '. » I'l nK>t;it« I
vi;vu<' \vit!i iiii ilmulittt.
,|ii: titU' til !• vtiili ; .hh|
iri'li;\si'il liy jiluiititl
, ^hihU, it aini'ai-iil r!.,i',|
liii liy \i! liutill li:i.l i.Tivl
\w siiiu^ |i.i>:ilili' liy\iUm.l
mill ill t'ait wi'iit in ixMl
: 1 1 fill, I. 'I'lnti'viilrtej
( iiilnii-i-'ilili' '. -. ni;ii ;iii)|
liust tlu' \il liiiUtlV 'i«
v. \m.
Icratiiiii lit iiiai'iiu:;i' i-
still 11 Sl'ttU'llUMlt \i\"K) ■':
o si'ttliir 111' ln>i'lnMi-,liii
■, lialiK' t'l 111- iiniicai.ln''i ;
i'uti' iif l''li/.;ilii-'tli, "II till
II ni;viU' tu liiuilfV iiml ilil*
tlKTft'liV>'. :i lii-r*iiii ill •'*
icus li:i>toiu^il till' iii.nr.1,1
ciinvi'Vcil .ill 111-- ii'il
ln'iu'li't ami ll"' i'-""' "' t
liaviii.^' st.vtoil tutlu'Miliiit
Imvi'vaiu-'o, ami tu till' tiiH
, in-fVeiit lii« \iriilHVt\ inn
vi'iUtm-s, ami tluTc luiii^
lth:tt till' il'in.i^litir ami lie
li.l also liL'iii iiiii)niifil"!tlii
Loll a liill lil^'* ''>■''
't the lui-l'-'iiiliiii'l will! ;iii
11. to sL't asiilo Mich M.ttl
I "uiio viiiil asa'jiuiM cr.-i
tnistci- i.i tlir trauiliili'i
Jul- li.'iiig -illi'i^'i't '"'"',
■inTi'"'- 'I'" siifli 11 lull ilg
Ix'xsavv V^riy- ''""""■''■
lim,v„aiKviliurtlYiU'*trd
I til it \V. uii'U'vtiii.Utiivtfl
liutrmU'il %vitoasliergu:it(
• tlii:< i.i-ovuil til li^ m
I'lavo liofU SUCH ill a 111 rt«
1.,.. ami, a- tlio wit,"-.'^'
IW ami tint liotiuv
nili'tailaiKilitr-
■oraiiili"" WL'it. tiiit. At]
life's l.r.iiierty was all >
;,,il ' W.ti.tklniiV
|,,,,,. i.tly.aliilM'ilol
I liii.is.ll, tNV..l i" ""N
yi.ii.tliolia"'l^-''tl'^.'^
[e niiiiifys tu
liiuliti'f lii''^^'
I w. I'liy"'^ ' , „
t„ him, '"• "*' "- -
... ,lie.l, tlio tiTOteuiwe^
ri.aiiltli<.-<-'l"^''
• It t.l llililv tilt' SlMl'lll^ 111 IMMIIK nil iitlllT
i *'lMlltK- "' ^^'' '" ""' '""''• . ''i.'"" •' '.''" ''''■''
^ ,1, . wi'li'W 1""' 'liilili'*'!' "• ^^ ■ ii;{aiii-<L tlir
... tin' ruiii't tliuiiulit till' aiiti'iiii|iti.il
'n.,.m>'nt .Hiiiraicntl.v cut ilili"!!..!!, ami miliTcil
7. trii.^ti't' t" l''>' "^''''' till' I'll.uii'i', witli ill-
' mill that tlu' tiii'<ti(i lii'iiiK till' !• ishirr nf
i i liiiik, nil" ''•"' ''""* '''•'■''■^■^''l •'"' lii'iii'lit iif
I iJ^iiiiii'vit, 111' •<iilliiii'iitly i'1'iin'.Hi'iiti'il till' li;iiik,
lit «ii.'< tlii'i'i'li'i'' 'i"t iii'i'i''<saiy til make tlu'
"'ititiitii'ii ''•■"''• " 1""'-^ '" ""' ""'^ • '"'* "'"''■''
ir ^Irciiiiiitaiii'i'M. ilii'iiiU'il all paitii's tn tln'
til rt'ci'ive tliuir inst.s mit nt' tin' I'liinl.
Bv »ii iMitfj-iiiiptiiil ML'ttluineiit iimilo in I.nwor
(.uuiUiii •^•'•'i airiinliiiK to tlu' laws tluTo in
I., if was aiifoi'il lit'twi'L'li tlu; partii-s to till'
n.ikM'il iiiii'iiaui' that no commiinion ol |(ro-
LrtvliftiM'i'ii llii'ii' sho'iM f.xi.st, Imt th.it laili
LiiM li"''' •""' ii'i'ti'i""' to tinji'V what oarli
iJuliail. I'l''"'"'"^'' tiR'i'cat'ti'i' a<'i|iiin'. In ISIS
itt'itiin K'""'^ "' t'"' lii'x'''"iil "I'l'i' solil at sluT-
jj'jjj,., 111! I'Xi'riitioii a;_'aiiist tlir liiisliaiiil, and
'^,vilu^ iici'ii hiiiiulit ill liy a tliiiil |iai'ty, wcro,
kv ii ilrt'il lit iluiiatidii, I'liiivi'Ni'il til till! will' for
Nr.iiiinti' 11^1'. 'I I"' pai'tii's haviiiLt removed
1, I'liin'r ('aiiada, liroii;.'lit with them these
L,.,ls, wllit'll «<■•'*' seized under exerlltioii issued
kiju'i'.'iiii.'iit'' ulitaiiieil against the hiisli.'iiid ;
till, "that till' iiiarriagt) settlement and deed
iliiiwtiiili lUiipL'i'l.V vested the <i Is therein '
jliliinii'il ill the wife, and tli.il they Were not
lilf t" si'iziii'i' fur her husliand's delits. Itiilmiil
l.\k,in, II Chy. i:<">.
.\ili'i'il |iiiiliiii'tiiiL; to he a liarttiin and sale in
liiilcritiiiiiiit t'lIMM), and lieariii'.^ date the day
i(,rttht'mariiai.'eof the uraiitorto the grantee,
iiiilieaclit'il liy a siil)se((iielit ereditor of the.
,„(„,. Tlii'i"!' «as no cviik'iieo of any [irior
n(iti;itiiiii fill' ii marriage settlement. The deed
usniiti'Xti'iiti'il hy the grantee, and there was
eviih'iK'e that it was known to her, or to any
.ni.tiii;'fiii' lii'i'. tiiitil long after tlu^ niarriige.
kt criutiii', who was in trade, eontinued to
iith the inulierty as owner, and the deed
. ii.'t remastered for three yi ii'.s afterwards,
Mitlii' i;i'aiitiii' had lit'come insolvent : Meld,
ittlieileeil emilil only he regarded as a volnn-
\(lrtd; ami as it did not appear that the
it.ii w.i.s ill cireumstaiiees at the time to
iki I .'ilt nf sii nnieli lU'operty, the deed was
x-\\y .\* a fraud on ereditnrs. .Sjiragge, \'. ( '.,
M:i'hiJI(iiiil \. II (7/(((Hi.<o/(, I-_' Chy. ill.
liiii ji'lual fiiim tht! nlxivc decision, the court
: sitisliuil that the deed was executed as a
maL'i'sittleiiieiit, and not considering there
Bamin'iiiif of a fraudulent intent, upheld the
ilil ami vaiieil the decree iiiadc in the court
'.inliiigly, with costs. \ anKouuliiiet,
.1. WilsiMi, J., and Mowat, ^'. V., diss. S.
LlU'hv.'illl.
veeeivcJ
mill eh'.!
,.- 1.11' the 1'
Mail
Itie insolvent had conveyed hy w.ay of settle-
jDttiilii.s iiiteiiih'il wife a lot of land on which
|!miiiimm''iieeil a house, but which was not
pi^lttiil until after the marriage. On a hill
1 liy the .i.ssiiiiieo in insolvency, the court
arcilthat fur so much of the Imilding as was
lileteil after tile marriage the creditors had a
mm the prnperty ; Imt gave the wife the
It t" tied whether she would lie paid the
B iif her interest without the expenditure
iMnamage, or pay the assignee the amount
101
of Mill h expcinlitiiri' : and it sulwiiueiitly ap-
pearing th.it the Inisliaiid hid eri ited ,•» umrt^.'ij}!}
prior to the setth'llielit, the Wife Was ilii'lal'i'il
entitled to have the v.lllle of the iniproVellientN
111 iile after niarii i'.^c applied in disehirge of the
iiioitgige ill priority to the claims of th • credi-
tors. Jiirhiiiii \. Itiiii'iiiiiii, l-iCliy. l-'Ml.
.\ widower, on his second inarriatre, excciiteila
settlement which made iii'iivision fur hin eliililreii
liy his lirst nilll i.lge : lleld. alliriilili'4 the deerec
lii'low, 17 Cliv. Hh, that the provisinii could not
lie defeated iiV a sale for value liy the .■Ncttlor.
.1/ef ,•,',;/,„• V. /.'1//1-//1, ('ill "/ly/Mi// is Chy. 4t(;,
alliriiiing .v. t'. IT Chy. 44l(.
'■"iee also /,(//.< it ii.r. v. Mi-/>l»,:^-ui, \' C. V.
•Jiili. p. HUH.
(li) Al'/f r Afiirriiiiir.
A settlor tiled a hill to set .'iside a settletuelit
on his wife and her heirs, allcgiiii,' fraud hy the
trustees in iiidiii'ilig him to make the settleliient.
The wile died leaving iio cliiMieii liy him, Imt
leaviiii.' ihildreii hy a former liusl..ind. The
.llley.itioiis of the hill failed, and it was ■•e rd-
iiigly dismissed, hut it was li'ld that th. ..^.■-
liieiit only vested a life estate in the tri. .iccs ;
.•Hid. .'<eli'ilile. that the settlor could defeat the
settlement liV a s lie. (,'/•<(//;.(■•/ \ . Mr />,,,, m/',, ,">
I,. I. I, ST. -Chy.
.\ person agiinst whom severil executions for
sniiill aiiioiints were in the sherill 's hands, and
whose I'll ittel ))rii])erty when sold hy the slieriH'
was not sutlicieiit to pay those executions, made
a settlement of the only real estite he had in
trust for his wife and children ; Held, fr.mdu-
leiit and Void under III I'M/., c. .'». diiijiln-iii v.
Williiiiii". ."iChy. "ilV.l.
The owner of re il estiti' liciiig aliout to enter
into a liiisiiiess p irtiiership. settled his property
on his wife and children. The evideiuc shewed
that it was made at the iiist iiue of the settlor's
wife, and with a view to save the pro()erty from
any delits which nii','ht arise in coiisei|iienee of
the partnership : - Held, tli.if the scttleiiii'iit wa.s
void as against siihseipieiit creditors ; although
at the time of the .H'ttleliieiit the settlor was
perfectly solvent, and no inti'iitinii i,f fr.indii-
leii^ly w ithdr.iwing his assets could he iiii]inteil
to him, and the pro|ierty in i|Uestioii was partly
piid for hv money given to the wife hy her
father. /i»«'/('/.'/('/ v. /.'..."<■, 7 Chy. 140.
When a delitor makes a voluiit iry settlement
under circiimst.'inces that render it void asn;,'ainst
creditors, the gr.iiitee is not entitled, as heiiig in
eU'ect a surety for the deht, to li.lil the iiroperty
exonerated from the deht, in conseiiuence «if
time lieiiig given to tlie delitor, or of any like
transaction that would free a surety fmin his
liahilitv in ordinary cases of suretyship. K'lnij
V. Kidtitii/, 12 Chy. -J!).
A. having received a large sum for the sale of
a secret imp.irted to him and his wife hy a rela-
tive of the latter, liought with it part of a farm,
of which he took the deed in his own name; and
afterwards gave instructions for a scttli'Uieiit of
the lu'opei'ty for the use of himself for life, with
remainder to his wife and children ; hut the set-
tlement was II. 1 prejiareil or executed for a year.
Shortly before it was executed he had entered
into a hazardous business, which ]iroved disiis-
troiis all his means not sutticing to pay it.n
\{
IGO.T
FRAUDUI-ENT CONYEYANf'ES.
Idssi's. Till! farm was the (inly real estate he
liail ill the indviiiee : - Ffeld, at the suit of a
civilitor wliiwe ileht accnieil l>efiiie the settle-
ment, that tlie settlement wan void as against
crulitois. Kill!/ V. Kiii/iiiij, \'2 C'hy. '21).
A mai'i'ieil wiiiiiuu liail left her liiisli.ind, and had
for sume lime lieeii livilij,' ajcirt fidin him nn ae-
eountof his alle^'ed adultery, and he had nut eon-
triliuted ill any way tn the suiipurt nf her (ir her
children, whom he alluwed to remain witii their
llflitlier. Tiie wife was advised tn take iimeeed-
iiij,'s a^'aiiist him under tlie statute fur not pro-
viding' iier and lier cliildivii with food, ite., and
also to lili; a liill a^'.iinst him for alimony. To
eoiiijiromlse these threatened jiioife<liiii.s, the
liilsliand m.idi' a settleineiit in lavour of the
wife and eliildreii. The liiisl>,iiid ip faet was
then insolvent, lint neither the wife nor the
trustees had any knowlediie thereof : -Held,
that the settli'ineiit loiild Hot he imjieaehed un-
der the statute l.S Kli/. J/cv <// v. Sr<,t.', -JO
fhy. 84.
A jioat-nuiitial settlement was exeeiiteil by a
person iiis(d\elit, hut the trustee was ignorant
of the faet of his iudehtedness. Tlie Court, on
a hill liled imiiuaehing the settlement as fraudu-
lent against eredit(U's, set it aside with eosts as
.agaiii>t the settlor ; hut ordered the trustee to
reeeive liis eosts out of any residue of the fund,
after iiaymeiit in full of the elaiins of the eri'd-
itms. with eost.s. '/'//( Mi.rrliiiiil.-< liiink \. Mm-
(/uiKi/il, lit I'hy. 47(i.
A (lersoii heiiig emharrassed, jiro)iosed to a.ssigu
a lioliey on his life, in trust, lirst to seeiire eer-
t.iiii advanees. and then for liis wifu. The ad-
vaiiees were made and the assiguineut exeeiited,
hut no trust in favour of the wife was deelaied,
or was reciuired hy the lender as a eonditioii of
the loan. Siihsunuentiy the trustee made further
advanee.s to the settlor, and in his evideiiee
stateil tliat the settlor might have alisorhed the
whole amount if he (the trustee) had seen lit to
advaiiee it. After the death of t\n'. settlor all
the advanees were paid, and the residue of the
insuram c moneys investeil for the henetit of the
M idow : Held, tiiat so far as the interest of the
widow was eiui :eriied, the settlement was void.
(•n",,ii v. \',iii-<iHin-l, '-'O Chy. •_'4l.
A trader in iiis(dvent eireiimst.inecs, for the
]iiir|iose, avowedly, of indueiiig his wife to release
her dower in a iiroperty shewn to lia.e heeii
Worth alxuit Sl,;^(M(, eouveyeil to hcra farm, the
net value of wliieli was aliout S|,7()() : Held,
that this was a fraud uimiii ereditors ; and tlie
eoiirt set aside the transaetioli with eost.s. lihirl;
V. Fu'intii'iii, '-'S Cliy. 174.
y. I'KAcTiri: OS Skitim: Asiuk.
I. I'diiU's.
A iierson elaimiiig umlor a disseisor, may ob-
tain a release from tlie dis.seisee, iiotwithstaiuling
he has previously exeeiited what purported to
lie a eonveyaiiee in fee to a tliiril jiersoii, void
for fraud as well as for want of interest in the
grantor; and may file a hill to have sueli eon-
veyaiiee delivered up, without making the dis-
seisee a party. Wh'ifliix. M'Jiitii-i/i,'2.0.S. \0.
To a hill hy an exeeutioii ereilitor of two joint
dehtorj) to set aside eoiiveyiiiiees hy one of tlieiu
us fraudulent uud void against creditors, thu
ii;ii{
It tw
lilitiir
grantor was a defendant; Hild, tlmt
grantor was a necessary jiarty, \ns tp.
should he a jiarty also. J'l/jKiy (\i,. t
t'hy. 131. ' ■ '
To a hill filed by one co-jiartiier ,t!,';unst iini.ti
seeking to set aside a iiianTii;c M.ttl,.||n.||['"
\ having lieeii made hy the settlor .u ;i tini. wU
he was insolvent, the trustees and a»tiii,,i.
trust of tile settlement are iieecssai-v irirtJ^iV
they are entitled to have tile arriiiints nf t^
\ partnersiiip taken, and assets tluTiuf ii|i|,]|,.,| ^
t'Xoiieratioii of the settled lainls. Tin,,,,,,, "
Tumi life, I Chy. Chaiiib. 4l>. Kstcn.
j To a bill to set aside a eouvi'vaiiut' ,is v..i.l
! against the gr.aiitor's creditor.s, tin; u'rimtMr t!,
whom a small balanei^ was due, ,iii,| « h,, nsi.'u
in the United States, was llclil, imt til,
j necessary party. Sniti v. linnilitun, l!iC|iv.:":i/
' '{'he plaintill's who were se\uni|y iiitiiv-Uil
in certain chattels, joined in a Kill strkiii'tii
j have an alleged sale and traiist'cr nftliuiito
defendant, set aside on the grcjiind u\ t'iviii,iiili.|i{
practices by the defendant. A (Icnmnvr „ii tli
ground of misjoinder of iplaiiitills, was all„«,,i
and a deiniirrer tor want of 0(|uity w.'is iivirri;l.,l'
but, following the rule in I'aiii'e /■. rii.-,.,„;j,i
iC'liy. .S.'iS, without costs to citlici- lui'v vl'
\iK-r V. I'iihinr, -JDChy. ;!74.
j To a hill against a married weiiian tn *v[ a^.
I a mortgage made to her 011 tlic ^rniiinl tlnttliij
; same was fraudulent as against civdit.ii,. tbi
hiisband was made a ]i:irty dcfiiKhiiit : IM
on demurrer, that since the passing dt thi' \'
1 ried Woiiicn's I'ropcrty .\ct, 1S7'J, tin,' iiu-Imi,
i was not a necessary or a iirojicr party. .'^I'luli]
that such a dealing on the p;irt ni a iii:irriej
woman was a "tort" within tlic nii'.-iiiiii^' ..r t
above act, for which sin- cniiM he jirmviil
against as if unmarried. Mi-l-'ni-hiiu v. l/u/yij
•-M Chy. SO.
1 See CdiiiiiK ri:iiil Hiiiih v. Coukt , II Chy. ,V'4 |
l(il«>.
•J. /'i,,i,!h,:i <i,i.i /•>;,/,„■■ .
' Where a Jiarty liled a bill I0 set aside ,\ile(
on the ground of fraud : IbM, that cviiltiiie|
j particidar acts of fraud, althoufjli not .'lurjl
in the bill, was ailiiiissilile. ii /■/'.//,/ v. //./n/^
:.so«, I (». ,S. .•{04.
Tlw plaintiir prayed that his ilrid toniis|
{ the defendants should be set aside i<<\ inu
and though liu failed toprove tin' fi-anilas;ill.:;ej
1 yet the case being extrcnicly penil.ar ami m
rounded with many circuiiistaiKM.s nf siwiuili
I the court directeil issues for the trial at l.i»
I the points in dispute. TtniUir\.Sh<:jl\\V\i\. i
I A defendant in ejectment liled a hill ♦luvsttj
i the action, alleging that the AwA. uiidcrwli
I the plaintill' idaiincd, was a fergery.
was dated abiuit tilty years heteiv the lnlH
liled, and the four witnesses to it were dead l«i
I the validity v is impeached in any way.
; court dismiss' I the bill with eii,st.i Fid v.
; Mii-hii.l, .") t'hy. (i4().
j After thirty years possessinn nf land
I person to whom the gr.aiitee el the eiiwii]
! eonveyeil the property in exehange l"r
I lands, the vendor discovered adefeet iiitiiej
I hy reason of the non-registry nf the i w*
■and executed^ ft deed to a per.son wlmliadl
; •.^-Hcl.!, tliat it tW
party, liis cu-iUlitnr
l'ill>' I' V. ''iIm;'i'"||, Hi
-^liivtiKM' i\y;un't ;ui"tlitr
iiian'i'i>;<.' >i-ttlcim.Mit m
• sfttliir lit ;i tiiiif wlieii
tnistous iiinl cestui .|Ue
iru uei'ossary ir\rtif.<, as
ivo till' iici'iiimtMii tlie
VSScts tlui'i'if ;\)lllllril ill
lci\ l;uiils. 7'A'M».i< V.
\). 4t). I'.stiu.
U' a ciiuvi'y;uici' iis V"il|
^rt'ditiirs, tiie uiMtitiir, ti) 1
A-iis iluo, ;iM'l wliiin«i'lHlj
was llclil. lint tu iK'al
V, liiinili'iiii, mCliy.-''^'
were sovcriUy iiitcVfttnll
iurmI ill a Kill stukiin; tol
aiiil ti-aiisl'fV «i thfiii t»|
u tlie gnmiiiliil Iriunlukiitl
idaiit. A cliMiiunvr nil tli«|
i,t ).\aiutilVs. was ;ill"\n-l,l
uitof ciiuity was iivemiWlJ
\v. ill Value r. rliiiViiaii, ■
^rtts to I'itlii'v \';<'"-y- •''■''I''
y. :r.\.
uiari-led woman to n t a-:
, Ikt oil til'- K'o""'^. ''"''■' J
it lis a^iaiust iTuait"i>. tM
a i.artv acleii.laiit : WM
i„cc tlu' v:i^-i"- ';' t'>^' ,
ertv Act, IST-J, llie inHuU
or'a iirovef iKUty. NmH«
, ,„i tlif l>:u-t ol a uiH
"' witliiii the imaiuii: -i t«
|i,h slir >'ouia W' l";p .
,,„„^.v. r,„.t,l)i'hy.^^M
Ki: A r DT' i.ENT ( '( )N V KV ANCKS.
I t'.oo
i.iissessioii (if a jiortioii of the jimiierty for
v nl veai>; iimler the veiuleo's lieir. To a l)ill
"i 1 {„" set asiile this eoiiveyaiiee, tlie veiulor
1 tlie seeoiiil veiiilee set llti tlie iioii-lieirshiii o!
thiihiiiitilt ". a piirehase lor value without iio-
tn" aiiil that; tiie ori;.'iual vemlee was a minor
'(I'lj. time of the exehauj^'e, ami hail lepuiliateil
tiietMiisiotiolioii i)iH'oiiiiiij,'of a^'e ; and further,
tliitlw li'"^ "" ^^^^^' ^" ''''^' ''""^ eoiiveyed in ex-
I'li,,,. 'I'lie court eoiisidered that the long
ii,i<cssiiiii '11'^ the ahseiiee of jiroot' of the facts
alli"'i-il liv tlie defendants were siillieieiit to eli-
ttlf tliL' lilaiiltiH to a deeree with eosts. Iln rhhi
'l\lM,ii, li ciiy. -lo") ; 7 «'hy. -JW.
Xlie I'liiirt, though it refused to set asidi' a
luiR'lwse iiu the ground of fraud in tlie vendor,
w k'iive to amend the hill, alleging over \alue
j,;i iiriiiiiiil f'"' •''^■'•t^f- I'' ' ■< ^'^ 'I ''"'■'"■/.•, (i ( 'hy.
fflioro the eireuinstanees attending a trans-
ferni iviil estate from one hrother to another.
Sere siK'li that the eourt felt satislied that a
iiirvwiiulil li 1^1' ■"'''i^''-''l '^^ the eonelusioii that
tksiK' "as eolourahle and lietitious. and made
i.ir tlie luiriiose of defrauding treditors, the
ila.l Mils ileelared void at the iiistanee of a
crt'literiil the assignor, the amount of whose
aiiiu Wiis iirdered to lie paid in one month, or
indttaiiU that the proiierty in cjue.stiou .should
i,c villi. ■/'/"■ li'iith-i'j li. .\. A. \. Il'ifh iihiirK,
;iliy.:i8:i.
Tilt fact that a sinqile eontraet ereditor has
■A "lit a writ of attaehnient against an ali-
RWiiliiii'ilt'htor, does not atl'ord any ground for
{(iniiii;' til this court to have a eonveyaaiee al-
led a hill t" ''^t •''''^','' ,
..iu,l •- Uel.l.thatevi.liiel
'n-aud. altli.m;iliu'iteh.ij
„i,.il,le. U r.ihl ^. ll-'i
Led that his deoU^iaj
lould 1.0 -set usiile 1 . ^«*
lltoi.rovetlielvauila>.>"^
r.feii.elylio'">f ^»" -
l;:.rcuiiistaiiee."l>>M«1
le. 7'ii.v''"'V-'^'":.'''-'* •
|ieeimeiitliU"l^^''i"*;"'"Hl
t itat the deeil umler «^
Td was a Un-i^'in- '1
i V years hcl, ve tot
litliesscstoltwevei '«J
Inpcachc. ui au> « ■ «
1 lull with i'l'^t*- ^"^'
iietion should not he rested on the niU'orrolMU-ated
ti'stimoiiv of the [i.irties to it. '/'/h M' i-rlfiiil<
li<iiil: nj'(\niii'l<t V. Cliirh, ISCliy. .")!U.
Where a hill w;us tiled to iiuiieaeh a deed ; s
eoloniahle, and the evidence shewed it to liu
fraiidtih^nt, if not eolonrahle, and the same state-
ments would have lieeii neeessary had tlu^ hill
sought to impeaeh it mi the ground of fraud,
the court refused to entertain an ohjectioli at the
hearing that the hill had not sought to set it
asiile on that ground, or assigned fraud as an
alternative greiind of relief. ('niiKinrriiil Ihinh
v. C<,„L;; it Cliy. .V-'4.
An execution creditor 'iroeeedjd to a sale of
the lands of his dehtor, and sold a iiro|ieity
whii-li was suhjeet to mortgage for t'."()(), given,
as the creditor alleged, to def/at creditors, hut
which iiroiieity Hie creditor alleged w.is not
woitli more than t""JO(), and hecinii' himseli the
luirchaser thereof at tlieliriceof fid lils.; where-
ii|>on h(^ liled a hill setting lortli the-se facts, or
that the mortgage was given to secure a miiell
sm.iUer, if any deht, and praying alternativo
relief, in accordance w ith such alleg.itions. 'riio
court at the hearing pro eoiil'esso refused to set
asidcthe mortgage, hut gave the plaintitl'tlieusual
deeree as a judgment I'reilitor, not as a pur-
chaser. The proper course tor the plaintitf was
to have come to this court in the tirst instincL',
and not to proceed to a sale of the ])iopeity with
such a i-loud uiiiii the title. .Unllnrii v. I'lmibfl,
!l Chy. .V.i;.
Where a dehtor executes a fr.iuduleiit convey-
aiiee, in resjiect of which relief in eipiify may
have to he sought, the ]iroiier course for tho
It" he fraudulent as against the creditors of creditor is, not to have the iiropcrty soiil hy the
iiklitiirset aside, liefore the court can he
luiiiiu to do so, the ereditor must estahlish
jiii;lit til recover at law. W/ii/im/ y. /.iin-i-n-
|«(i, fcliy. (i03.
Inn suit tu set aside a voluntary conveyance
L<V"i4 i.'iiiiist creditors, it lies upon the p.arties
in suiiporting the ih:ed to shew the
Ktcineiif other proiierty in the dehtor avail-
Llf I r his creditors ; hut in such a case, the
r.itsiiiiviiig omitted to give such ovideiiee, the
s.it! , It the hearing directed an ein[uiry hefore
iM.-ter as to the iiidelitedness of the grantor
ttiiiilite (if theeouveyance. /Irmr,! v. I),iriil-
s..!l('hv. 4;!!).
sherill' at a great undervalue, aiitl then to come
into eipiity to have the sale coiilirmed ; hut to
come into ei|iiity lirst to have the convey aiice set
aside, and the jiiopertv then sold, /v'l /•/• v. IS'ihi,
II Chy. 4'_>:t.
Where a hill was liled to set aside a loiivey-
ance as having heeii made to hinder iivditois,
on grounds w hich the plaintitl' failed to siihstaii-
tiate, hut till I'videiice of the grantee himself
shewed that on other grounds the jilaintilt wa.s
intitled to relief, ;it the hearing lea\ e was given
him to amend, setting forth such grounds, and
a deeree was iiiaile in his favour, hut \\ itliout
eosts. \\'iil«iii V. MfCdiih;/, 10 Chy. -tlfi.
.\ilc.il li:iviiig heeii executed hy a hiishand
Iwiii' miller such circumstances as to make
iiiiveyaiiee ^•ohlIltary, the court held that
Tile ow ner of real estate heing iiiuhr arrest
upon civil |iroeess, conveyed his lands to a per-
son for the piii|)ose of eiiahling the grantee to
"iiiis wiLs oil the iirantee, of jiroviiiL; that the justify as special hail in the action; and after the
itiirs uiiilerstooil the nature and eti'eet of the same had heeii setth'd the lands w ere reeon\ eyed,
; aiiil as it did not appear to have lieeii hut in the meantime a writ against the lands of
liiiul liefiire heiug executed, the ileed was the grantee had heeii placed in tlu; hands of the
iuvaliil. A'/Ksi/'v. I'liiliiiij, \'l Chy. l.")4 ; sherill', and a sale w,is ell'eeted thereunder after
!iiiiig\ (.'. II Chy. 42(). such reassignment, and a eonveyance made to
Hill n: .• n i.1 1. r ii 1 1- 1 i the purchaser (the plaiiitifl' in the writ, ) who had
■Mull, setting' forth that one of the deteiidaiits .■' ,- .i , • ' , .■ ■ ■' ,
,,. I „ ^ .. ..11 ^'m- I notice of the claim set up hy the oiitrinal owner:
urnl a eniiveyaiiee from the ulainti I hv ii ii i-i ^ .i * ..■ i.
1 „„] n \ L 1 i.1 \' Melil, that the transaction was om; .igauist
'I, .iinl I'.lterwarils inort'raL'ed the iiroiiertv i i- i- i ii i i.i ■. .i <.
• . *? * ^ 1 '-'".r piihlie p.iluy and morality, and that the eourt
would not lend its aid to the grantor in getting
hack Ills estate ; hut the imrchaser at .slieritl's
sale having in his answer disclaimed any interest
in the lands other than a lien thereon for the
full amount of hi> judgment and exiienses, the
eourt ilecreed the plaintitl' relief upon the terms
of his paying the full amount of such jinlgineiit
and expenses, together with interest and tho
costs of suit ; ami the defendant having also hy
Miiiitlitrilefeiiilaut, is not demurrahle for want
|Jdi;irge that the latter had notice of the
iMiii'lHifiire lie received his mortgage. It
IIm tilt ilefeiidaiit, in such a ease, to set up
fileiena' iif nil notice. Kitrhni v. Kitclnit, Ui
is, 'V)<1
PMlie o:ise of a sale hy an insolvent ]ierson
' rditive, atteiideil hy suspicions circum-
I*, tin; veality and hona tide,s of the trans-
I
•■]:;
IJ
1607
FKA I'DrLKNT ( ONVEYANXES.
li;i.
lii« .•iii>\Mi- .lUfgcil that the Cdiiveyance was n ad ■
foi' thr |iiiiiiijsi' iif inahliiig th<.' i;raiitc'o tlitre ii
to justily a.sliail. ami tliat he ilid jiistity as .Midi
1):iii iqiim the lands so com cyud, and saliinittud
that "thf jilaintiir under till' (.•iiTuiiistanucsc HI vht
til l.f ust'ijijuMl and intil'.idfd Iriiiii saving that thu
said lands arc not the land.-." of the grantee.
ileld, also, that althongli the defendant diil not
olijeet that tlie act was against jmhlie iiolicy.
tliere was sntticient stated to ciiaMe the court
to give etl'eet to the olijictioii of illegality, not-
withstamliiig the answer ilid not state that suili
use Would lie ni.-idc of the facts .stated. I.iiiujhti.-^
V. liii'm, 10 Chv. ."i.^S ; alliinieil on rehearing. II
C'hy. -Jl.
To a hill liy an exi'cntion creditor to set asich,'
ns fraiidideut against I'lcilitor-', two distinct con-
veyances e.xeiiitcil at ditlerent times to two
sejiarate grantees, the twn tiansfers having no
connexion with one aiiothei' a cleniurrer for
niultifarioiisuess was allowed. J'i//"-r v. ('.i,'-
i-rn„. I,", Chv. 131.
The widow of the grantor in a deed inqie.aihed
as fraudulent ag.iinst creditors, wa.s entitled to a
legacy under the will of her hushand : Meld,
that uowithstaiiding such interest on hei- |)art,
she wa^ a competent witness to jirovo notice as
against the imrchasers from the grantee in the
imiieacheil ileed. Snilf v. llinilir, 14t'hy. HTti.
\N'here a bona tide traiisiotion takes jdace
l)etween a failing dehtor and a favouivd creditor,
it is the duty of the creditoi- to emiiloy all jirac-
tieahle means to free tlie transaction trom unite-
served susjiicioii. and altord to the other creditors
reasoiialile satisfaction, as to the moral charac-
ter of the transaction ; and, if this duty is
neglected, the favoured creditor may have to
hear his own costs of afterwards estahlishing
the transaction, if imiieached in tliis court liy
till' other creditors whom it tlisaiipoiuted.
y/."/i// V. D,iiiir/s, uciiy. (;:{;?.
The owner of an ei|uit,il)le interest in hinds
under a eontraet of imrchase conveyed to the
]>laintilt', his lirother in law, and sul)sei|iientl>
whih.' still ill jiossession of the land, assigned it
to third parties, in consideration of tlii'ir giving
liiin a lease of the jiremi.ses. whicli was sulise-
qneiitly executed in the jireseiice of and wit-
nessed hy the [ilaintitt after the deeds were
eoinpleted. The iil.aintill sniiie time afterwards
tiled a hill impeaeliiny the assignment and lease
as fraudulent. The evidence tended to shew
that the conveyance to the jilaintili was colour-
ahle only ; and there not heiiig any evidence of
notice of the claim of the ]ilaiiititr the court
dismissed the hill witli C'i>t>. hurisun v. II'- //■•■.
!.■> (hy. Hit.
A sale of land was ell'eeted sniiject to :i mort-
gage created hy a former oWium- : Meld, that
this circumstance did not [Hecliide the pur-
eliascr from setting up the deteiiee of a purchase
for \aliie without iintici'. ( 'tnnji'tiii v. J-'nirlinirii,
ir> Chv. (!74.
The Jilaintili' having oceasinn to raise .S."?. KM)
to j)ay the church society for a lot w hieh he had
leased and improved, and which was worth
S!4. ■_'(»() cash, procured defendant ti> raise the
money and to pay it to the society ; whereu|ion
the society eoliveyed the l.ind to the idaiiititl',
and the ijlaintitl' to def.'udant. The ilefendant
a few davs afterwards .so'd the h)t for si.'JOO
liiintiir 1
iiiit iiiliiii
cash, to a iiersoii with whom tln' ]
heeii previously negoeiating. liefci
ted that, after the sale, he ilitein,,., ^,, ,„
plaintilV the ditlerence, less his 'UMi cxi,,.,.';',
and .-^-JOfl for his trouhle. There w;i.s i<iv:itT
eiiiiality lietwt'eiithe jiarties, and sniiu'evi'il.,!
ot I'oiitidelice lietweeii them, .-iiid tlu- lif^iioj;,!,,,
hetweeii the two were private. 'I'lif omrf im
1 .■ ti,., ...1. ..I. .....;. 1 • ""'
lietweeii tlie two were private. ' lie ciiiirtinin
red from the whole evidence tli.it tin- intcin,,,
had lieeli ex]iressed during the lifymiuti,/
hetween the plaintitl' and defeiidiiiit,",ii|,l ti-
the iilaiiititf liad conveved on tlic .sfi-..„.,.i
the plaintitl liait conveyeil on tlic >tMii'tl
it; and. Meld, that it constituted an :i^'i«'iii
which the court would enforce. .1/1^/,,,/
III-/',,,. 17 Chy. S4.
Where a creditor siniiily seeU.v tn liiivi' :i ,1 ,
iiiaih' hy hi.s dehtor declared frainliikiit iiiulvi.i'.j
it is not necessary to allege that tliecrnliti.rli;,
carried his claim to judgiueiit. In M^h ;, ,,.u
liowever, the creditor must sue on liclialf nf lijn,.
self and all the either creditor^ /n/ni. ,"„,,.
MUrh.ll, 17 Chy. I'M). •' ■
In a suit iiiipeachini; a eniiveyaiico mi tW
ground of fraud, the hill stated that tlii' "niiitirl
irofessed vahiahle eonsideratinn comuvrj
the conveyance ' ua.s iiwiliMmiil
ek.v ti. li;
tor a 1
the Land ; iiim me coiivi'\;iIl
eiit on tlie Jiart of the said defcinlaiit tn ,i
t .1.1 1 .1..1- 1 ii.
iiit
'eat, delay, and defraud the s lid |ilaiiititl." ;u ij
the other creditors i -Meld, that thisMUli.imtS
stated a want of eonsidciatioii fur thi- cm wv
and that the ohject was to dcli-at, hiinitr
aiiee
a
.nee. ami tiiau tue oii|ect was to iicli-at. hiinii
.ml delay creditors within the iiie:iiiins; ,.i t
l{ Kli/. c. ."). Siiiriiir V. l.'nituii, •.','{ t'liv, ,:
Where a hill was filed hy an exeiiitini! > ,
tor to impeaidi .a conveyaiiee hy the ilil,t"i. a
it did not ajipear that the action at law lii,]!.^
eoiiimenced after the passing of the Ailiiiii.;.':
tioii of .lustice .\ct, a deimiirer on tlii' l'|"!.i
that the plaintitl' ought to hive nht.iiiK.f iiiiej
ill the suit at law was overruled. /'..
;5. <\>si.<.
A creditor tiled a hill to set asiiie a ikui (
fraudulent against creditors, and tlie ^laiitir I
his answer disci. liined .ind allei:''il that tin-. ii^i
was executed witimut his know leil;;e m oiiu-cl
and that when he heeaiae awaiv oi it lit Id
re[iudiatcd it : -Meld, tli.it having' hci.ii [.ri'inil
made a defendant, he was imt eiititkil t" '
cost.s. Sh,inl,(n,rlli V. A'l./i. ;■/.<, UCIiy. iC j
\N here a eonveyanee is set aside as v.ii.l,
ereditois, a sale ordered, and cnstM ii|i
hearing given against the delemlants. tli^
costs sJKUild he paid hy the ilelemhiiits iiiiO|
diatidy, where it is maiiih'st tlic iiiii|ii'ity i
sutlieient to pav the creditors in lull. 'r''/|
Turn II, 11 Chy. 474.
Where a I'reditor lilcd a hill iinn.'arliiii.'C
vey.inces made hy the dehtnr a.< tniinliiil
against creditors, and the relict jiniynl
gr.anted at the hearing, the court oi'ili'ad I
diH'ereiice hetweeii party and |iarty ;uii|..."Iki
and client costs to he paid ]iro rata liv .>iiil
the creditors as might avail tlieni«'hv-"I ]
helietit of the suit, tor the |iiir]iiiM.' el nI'Mi
pavmelit of their deinaliils. /'. !/•/ v. /.'■i'''<
i;n'iiy. i:i7.
A hill was lilcd hy credifurs iiiiiK';iclni|
coiivey.inee as fraudulent, hut the fiuts [it
failed to estahlish uuwe than a case of i'lu'liil
ir,iiv
•lumi till.' \>liiiiitilV k,i
Jig. Ik'l'fiiiliut iiilmn-
, \it' iutuiiiliMl t" '.nvt
less liis <'Wii (XjifiiH-..
:. 'rUci'i.' was gviiu ill.
•ties, rtiiil si.iiii' I'viili ii,.i.
ein. :iinl till' i»-i;Mi;iiiti.iin
vivate. 'I'lif cnurt iiiict-
ileliee tliiit tile ilitMH|..ii
Auriufi tlu' ueii'niutina,
Hill irelfiiilaiit, aiul tlm
i;yeil nil the >tH.llgtli li
eiilif-titiitr>l all iigvn-iiitut
1,1 eliliilce. Mrb.J
iiply seeks tn luive a W|
■kii'ed 1 vuiuUikiit ami vuiil, |
lle'.e that tile .;reiliti.vkiil|
, lament. Ill siiL'li a 'ii-i'.
iiuist sue "11 liiliali iiiliiii\..|
V eveilit.'i-. l.■'ll^J■■^■^:
lili'-' ;l eniivevaiue "11 tW
l.ilT state,! that tin; L:ra;^T[
1,U' etmsithji-atiHii icnv.ypil
uve yaiiee ' ' « as liiaik \\nkl
the saiil ileK-ii4aiit t" .u-]
luil the saiil vl:ii"ti"'-" :"''
Heh>, that thisMiliMiii!'.!
onsiiU-vatiiiii l"i' tlii' o'liVf.vJ
lUjeet was to <'ieleat. l,ii/;,r,1
within the lueaiUU;; ■
,,• V. /,;«'..'-. •jsriiy. ,>
lUeil I'V an exeinitinii t'vlil
iveyaiiee l>.v the aekt"!. an
at the aeti'>natlawli:iAl«.n
I'e i>assiie,' of the .VihiiuiMr!
a ilelimrrei- uu tlie l'VKB
iht to h-ive ohtaiiKil nil
< nvemileil. '''•
( \,st.-:.
nil to set asi.le a nwil
Kill's, anil tl
that till-
■ veilitors. ami the -I'autn;
am
lut Ins K
l alle-'Ml
h
uowlei
•aiiie awaiv
<x nr coliwl
i.i it lit 1
■1,1 thath;ivin'.;l'eiMii.r<r
ith'l t"
■i:\:.
not
lilt
l!.,l..ri<. 11 »'Uv
i.leas\"i'hi
. IS set af
■ileiva, ami eosts up V
st tl
lelelliklllts
tll<
l.V t
niaiii
lie ere
■I.
Ik. ileU'inlaiitj imtj
lest tlie I'V
tvtv i>
ilitors 111
lull.
lile.l a I
.iUiiiiiioa.'luiui
the ilehtoi; lis
tnuuliill
the veliH I'V;
. till' eouit "ri
ro 1-
l.arty ai
lie I'aiil V
li^ht avail
1- the i>un
1,1 V'H'ty "'"
kwl
U"li<i
ata liV sil'-'l
tlieiii:
lo
lleiiiaiKl:
1 l.V Ll'
elv
i.l
/'.;/:/ ^■
■ilitors mil'
"M
.;H-!ill|
luh'Ut. Imt the u.t* r
nidi*
FKArDlJ J:NT C( )N V i:V AN( KS
10
...ftlu. li;ina tiiles of the trausaetioii ; ami
• siuu' I'^'l''^'' '"^'"'.rj ''^''^" so;iij;lit 111 a lull hy
"t' iT I'l'i-'il't'"'"* wh" "■'-■'''-• 'il^" tl"-' peisoii d repie-
titivi'^ ,il the ilelitiir, an, I wliieh n^lief wa.s
"''■' 1 tiie eoiirt ill ilisiiiissiiii,' the jiresent hill
; ^ I SI, 'with e ists, iiotwithstainling the re isoiis
j ■"., jmilitiiu tl".' '"'"''■ ''''^''' "' til- ti'ansaetioii.
\%,tty. Ilim/rr. 14 Cll.V. 37li.
Wliere a h >ii:l till*-' traus:ieti,m t.iki.s plaee he-
.„ia f liliiU' 'l^'l'tor ami a favoui-eil ere,litor,
I 'tiVtlu'ihit^' "' '!"-' '■'■'-'''•tor to eniiihiy all jiiMe-
I 1-ilile nic.uis to free tiie traiisaeti,iii fr,i:ii uinl,!-
' ,1.5H.<|iieioii, ami alt'or,! to thi'otiier erciitoi-s
i.iarilik' sitisfaeti,)!! as to the iiioi'.il ehiraeter
"J till' traiHietion : an. I if tliisiliity i.s neuleeteil
1 •ktavotiivil eivilitor in ly have to hear his own
I' jj^iii ;iiteruMr,ls estalilishiiii,' the tr.insaetioii,
|.jiii',,n;;nili....liii this eoiirt hy the ,itliei ,-re,litors
Uli.^i'i'it 'lis-4'l'"'"'^''l- ll'"''!l ^'- />'iin.!.<, 14
ihy. ii;w.
I tliill w.is tiloil iiiii>.,':iehinii a ileeil as voiil
I irniler tlie statute of KHz., and the sani,' was set
I v<iilf «itli •■■i"»t.^. !"* ;i;,';linsC the jcirty heiietiei.illy
liiitfrejteii : hut witliont eosts, as ag.iiust the
I ira'twi', us the >,'rouii,l u]ioii which the same was
|s(ia.siik"''is ii"t iieee.ssarily, .-iml |,i'olialily was
l|i,.:'kiiovvii to them. y>» 'm-v v. .V.w,,,',-,,, •_>()
|/:!iv. :r.'.'.
Imore
than a '
I sii>l'«
4. oilrr f,'v,.v.
li.isuithya judgment ereilitor to set asi,le
Llnii'laL'nt sultienient, ami t,> realize ins .jml.Lr-
|j|..u;, |ii..iyiiiif a s.de of t'.ic iiruperty on ilefinlt
|ilii,iVJiit.'i"it, if the sale j)",jvo aliortive : - -Semhle,
ItJut tli^' usual onler lor re,leiiii)tioii, ,pr -i default
|i„rtcl"suie will l> ■ ;;r.intjd ; at all events it
Itiiill li..' S'' if tllL' jud.:,'meut delit w.is sulijeet to
H.nir m!irtL'i:;e wliieli the juili^'iiient ei'eilitor
illi'j elltitieil to redeem, ('niinih rr'nil lliml-
,.(■, 1 (.'liy. Ch-.tmlj. liO.'). -•.^[irag.ge.
.Viii'.'ty heiiiy' ill gaol ,ni a ehirge of fehmy,
. lilicMteil uiion the present defemlaiit lie-
^.ll^ilu I'lil fi"' 1''^ a[iiiear.uiee ; aii'l having
tetwfju liis lilierati,,!! ami trial eouve.\e,l his
fiivity til ,lefeu,l,int for an iiiadeinnte e,iii-
fclcMtiiili. afterwards tiled a hill to set it asiile
1 lii..'i;ri,uiiil of fr.uid, alleging his imiiression
ili'ldiilaut's assur.mee that the ileed was
Braiv a ivciiguizmee for lii.s due apiiearanee.
alli','atiiiii heing disproved, the court dis-
td til'.' hill, hut without eosts, ami g.ive the
liiitiilkavc to lile aii,irher, if s,i a,lvised, on
•.•;i',uiiils iif iiiadeiju.iey of consideration ami
imi'.it! iulluciiee. ViilVii r \. I.i\ '- t'liy. <iO!!.
I Tlic [ilaiiititf liiid hought fmin ilefoiidaiit 47
Ittus. )iii,l fur it, and tUien a coiiveyaneo, hut
ltti-c|iK'iitly ,liseovere,l that -14 acres of it were
tverfhvitli water ; whereu|)oii he tile, I a hill
KTi.'iiiL.'ik'fwiilaiit with fraud. No evidence of
pyi'.iuil having hjeii given, and it rather ap-
ruig tint h,itli parties aeteil in igmirance, the
Bwijilismisscl with costs, luit witluuit pre-
»li« tn any new hill heing liled. ('lurk v.
^lAnni, '1 t'liy. (144.
li'.aiiitifl' iiiaile a note in fav,iur of his
itMu law, wliieh the hill alleged had heeii
11 nitli tlu^ expi'iss umlerstaiiiling that the
itiialslmulil never he called in hy the payee,
^Ullit\vitll^tall■ling, sueil on the note an,! le-
pivil juilgiiieiit. The plaintitl' thereupon con-
veyi'l all his red estate t,i a third ii.irty. to
,lefeat the juilginent. A deniurrer t,, a hill tileil
t,i have the grantee ileelared a trustee for thu
pl.iiutitr, or foi' ii.iymeiit of the allege,! purchase
money, was .dloweil for want of eipiity. !!'■<■ if
hiirijli'i-x. 'I'liiiiii'K, ."> ( liy. tio.").
A ilehtor eoiiveyel his laml in fee tor a sum
greatly helow its value, liiit cilitiniied in p.isses-
si, in without paying rent ; the heir ,if his vemleo
sever.d years afterwarils sol, I ami eoiiveveil the
l.'iiiil, the sale having heeii hroiight ahotit ami
ininaged hy the ilehtor, and the purchaser was
shewn to h.ivo Irid mitic of the inlelitedne.s.s
and other miterial ein'umst iiices. A creditor
alterwanls siid out an execiitiou ag.iiiist 'thu
1 mils of the delitiU', luider wliieh his interest in
this jirolurty was sold for .Vs. to the execution
ereditoi', who tiled a hill to sjt asiile the sale hy
tlie original owner, ami have himself <leelaie,l
the owner of the land. The court refused this,
hut gave him a right to reileem hy virtue of hi.s
jmlgmeiit, in accirdanee with an alteinative
prayer in the hill. ir(/'.<'//( v. S/il, ,; li <'hy. ti;{0.
The court will, in a proper case, order a ileeil
to ho cancelled ; ,ir, if rigistered, a eonveyanco
of the estate t,( the pers,in properly t'lititlcd ;
and th'.it, although his title tiiay lie suliieient
us a defence to anv .'leti'in at liw. //''(•/. '.v v.
Ittiliiihm, (i t'hy. 4(1.') ; 7 < hy. '-'to.
Property was conveyeil to a trustee lor the
piu'iHise of disapp,iiiiting creditors, ami at'ter-
wanls the pel's, HI elaiining to ho heiietici'illy in-
teri'steil. tiled a hill for a eoiivcyaii,-e to himscll.
iiider these cireuiiistanees the hill wouhl haViJ
heen ilismissed, h,i,l not the clefeiidant hy his
answer ailmitted that he was a trustee, and it
ajipearing thit the wife, who was not a party to
the suit, and was living se|iarate from her lins-
hand, was entitled to the henelicial inheritance,
an eiiipiiry was directed as to the cause of her
separation, to iis..!ei't lin how the court shouM
ilirect the rents of the estate to he aiil'lied,
J'/i'!,iit V. Frii«i; (> (_'hy. 'XM\.
A suit having heen institute, 1 hy .jmlgmeut
ci'eilit.irs to set asiile conveyances hy their ,leotol'
made fraudulently and with a view to delay
creditors, the ,lehtor attem[iteil t,i shew facta
which, if estahlished, would tend to annul the
juilgmeiit altogether, or reilneo it ; such f.icts
liaving heeli diseovcl'od since the jndgnient at
law, and when it wa- too late to ohtaiii a new
trial : Meld, that the lu'iiper nieaii.sof nhtainiiig
such relief was hy cross hill ; the oltler of the
court (den. <*r. I'J, s. 4, of .Inne, 1S.").'1, i per-
mitting cross relief to hi' given to a clcfciidant
against the plaiiitill', apjilying ,mly where the
defemlant is entitleil to some relief growing ,iut
of the same transaction as forms the huuidation
of the suit ; Hot w here the oliject of the ilefelico
is to ohtaiii relief not grow iiig ,iut of siii'h trans-
action, hut against it. litiiliniiitii v. t'lnin'onii.-ini,
10 (hy. .".i:i.
^VIlere a p;ut.v desires to impeach an iiistrii-
ineiit on the grouml of fraud am! extortion, tlio
more cmvcnicnt ciuirso is, to institute pr,icee,!-
ings in or,ler to annul it, as it is rarely that eU'ect
can ho given t,i a ilefeiice on such ground in a
suit to enforce it. Kniii.iy. .Ui/ntus/i, JOCIiy. lilt.
A deed purporting to convey laml to .\I, was
exccutcl liy the [ilaintitl. under circumstancos
which niiide it an inxalid ileed. The grantee,
I
IGIl
FIJ AUl) U LENT J U D(IM KNT.
1012
untitk'il to tlie lialaiuic <i( tin; lunrtyage moiiuy j were sliewii the court has the liowfc (if ii!' i''"
from l;., ami to a decree against M. for wliat M. [ iiig tlic relief to l)e given, so as nnt tn wrui.tf
hail reeeivud ; Imt the eonrt, nnder the facts, l parties ; or it might, in its diseretidn ivfut.
refused to remove the invalid <leed aa a cloud on i give any relief, (.'tirr'n v. Hilli ^im , '.'1 (1,,. .'i,-
tlie title of the grantor. Fni^ir v. /'ihIiki/, I'J ■"''•
C'hy. l.Vl. ' I . « _
A deed of gift void against the grantor may
l>e set aside at the instance of his heirs after his
<le:ith. Ihiir<:,ii v. J)ini:i(,ii, l-_'('liy. '.'TS.
An agreement may he allowed to stand, al-
tlinngh a voluntary deed arising out of it may he
set aside. l)<li.iilrn('cr\-.Biii-iiii(, llM'hy. .")()!).
In setting aside a deed for fraud, at the in-
.stauce of a jmlgment ereilitor Ity a decree of the
court, the proper form is to avoid the deed only
as against tiu' pai'ties injured hy the conveyance,
and ilirect a sale of the projierty ; the court will
FRAUDirLFAT .llhcMKy
1. WHF.N olIIAINIlli r.\- C
HF.N olIIAINIlli
l-AII.r, l(!l-.
II. MisiKi,; ANKors ('asi>
IdlN,
T. U'lir.N oiirAiNKi) i;v
An administratcu'
('.
ONKIN-^ION 111; Dkh-
'^.'iMg a rreihtiiniftk. in-
testate, in order to secure his own ili.l,t, ,,.,,,■,„.
1 . ■■.■,-,-. , ,, , ^^''1 i'"lK"'L'i>t to his friend the nlaiiiiiil' f,,„; ,
"I'Lr!'"):'-:...'^/:,,:!'^'^,!:''";.'''^^': '"rL:'"'?',*''^ ; tl><^ >"t^tate owed nothing, wilh X IhXk'!' i
ling that the lands in his hamls >liinil,l Iv Niii' j
judgment creditor to enforce his claim at law
And where the wife of the grantor joins in such
a deed to har her ilower, it should he avoided
only so far as it passes the estate of the gnsntor,
the creditor not heiiig entitled to the lieiielit of
such release of <lower. (jhuere, in such a case
what is properly the ell'ect following from the
release ol ilovver, and to wlio-e lienetit it will
enure. I'tiinh nf I'j.'/" /■ ( 'nnm/n v. 'I'/imiKi-i, '2 K.
&. A. .-)(VJ.
under the judgment, and the pnn'ccils |«i.l„viTl
to him by the plaintilK The court, mi tlif ahiJi. J
cation of the tenant of the land, set asi.l'i. tliej
judgment andi!Xecutioii with enst.s ll,,i,;,r.!
McM(i-<tri; () ( >. .S. .'J-J.
A cognovit given liy an aihiunistrntrix t- ij
creditor to eiiahle him to sell the lamls of ii.te
t.ate to pel feet his title, without taking' mit ,in|
execution against goods, was set asiilf Is oJlii-f
sive against the heir. tVuri/ y. l/.^r,,,, ,„.; |i|
Where a phiiiitill' had lieeii giiiltv uf 'j:..^
usury in taking a confession of judj-iiifiitiriiir
■ a defelidant, the court stayed tlie prncueiliii;>,.il
payment of the true delit and iuteivst, iilth"i;.lil
! the judgment had heen assigned, the a.->i-!i el
having lieen slu:wn to have had iintir.' ni
usury before he tool; the assigmiicut. A',"';;
FiirrcKf, () t). S. 'uu.
Where a debtor conveyed away his estate, in
fraud of creditors, to a ]iersoii having a judg-
ment against him, which conveyance was.declared
fraudulent against creditors, upon a bill tiled at
the iust^iiicc of certain of them : — Held, in this
respect varying the decree of the court lielow,
that the creditor to whom the conveyance had
been nnule, was not, nnder the circunist auces,
preeluiled from enforcing his judgment against
the laiulsof the delitor, tin- convi.'yaiice of which
had been so avoided. N'auKoiighiiet, < '., diss. //>.
I'ebt on a loud, conditioiieil to save the |J:i;iii
titi' h.arniless from all damages or suits i-('i:iir.lini
a certain sum advanci'd by one .\. tn tin- \>\.m
till', through the agency of I'.., ami Hliiihsunni
also claimed to have been paid tu the iibin;
by one ('., and to lie now due ami owiiij; t" I'J
Plea, that the jilaiutiir, if danniilieil, wa/ilamiij
hed of his own wrong. licpli.Mtioii. jottiii:,"ul
as a lireach the recovery nl jmlgiiuiit .-uul u.\,'
tioii against pl.'untilV liy ('., fur tlio .saiil mi:
liejoiiider, that the jndgiiieut was recnvi-ivii 1
the fraud ami covin of the phiiiitilf. u|inii «liii
issue was joined. It was shewn that the ivo
cry by ( '. had been on adiiiis.-iiriis iiwli'
A\ here a deed is set aside as fraudulent against plaiiititl' after the execution of tlie Iminl : Id
creditors, a pnrcliaser from the grantee in the not sulHcient to sup]iort the iilca ; .■uul tlu' | la:
impeached deed will not be allowed for im|irove
nieiits made by him uimu t!ie [iroperty. Sm// v
llinih r, 14 t'hy. ."iTli. ' i ,,., , , , • , , i
^_ ' j W lun-e a debtor liciugeiiiliairas^eil exautol-
The plaintill' had o.xecnted a conveyance of ; cognovit to one creditor \\ithoiit his kimwH
land without consideration, to avoid an execution ; and the debtor's houscholil funiitmv heiii;: .-
exiiceted, upon the secret trustor understanding uiion execution, the creditor piiie'.,,i.si.'il iiiul ii
tliat when called upon the grantee would re-con- mediately leased it to the ilehtnr, at a reni
vey, the court, under these circumstances, re- amounting only to the interest uf tlii' imivhi
fused to enforce a reconvey.uice, and a liill money, giving the debtor imwir ti ictaiii it
tiled for that purpose was dismissed with costs, j long as he jileased, and imt making any |ii
Kmr.ix. Hnrliri; loC'hy. (iT'.l. i sions for deterioration; and it wa-" afttrwa:
111 a suit to declare a conxeyance to a wife void
as against creditors, it was idicged that the land
li; d been con\-eyed by the father of the wife to '
the husliand afterexecutiug his will, (whereby he
devised the same Jiropei'ty to his said daughter,) \
under pressure and undue intluence such as, if
true, to render the deed liable to be impeached
on those grounds ; but the court refused to try
such issue in this suit, as the creditors of the
husliand were entitled to make out of his title
to the [iropcrty at the time of the conveyance
impeat'lu'd what they could towards satisfaction
of their cl.iiins. y'r;/;/ v. L'ii.-(/,i,iiii, I3(,'hy. KIT.
till' having recovered a Veidii't, tliecniut ivliiM
to interfere. {',,„; /I v. Ili.uli,,,,. •_' 1 1. H. -!\.
in siiiii-'. Hi'M, »„ „!,.
to set iisiiU' a Aw\ as
,ors, wbi.To till- iNisitii,ii
e;K'li(-'il i--i'iivevaiinili;i,l
fil l>y tliiMlflay ; iitlm
lis the \»i\ver nf lun.liiy-
I, SI) iis lint til wnuigtiic
its ilisi-i-cti(iu, rd'uM't,,
V. '/;'/, .•y.;..'Jl(1,y.x
T .UIHIMKXT.
1 I'.V ( 'iiNn>SlllN 111; In.
Casks, Ifil.S,
('(iNKKSsluN 111; llriA' ,i
uiii;,' ;i I'lvilit'ir nt th'..' in
•live his ilWM cllOit, l-nliUv j
.•nil the jihuiiliir. tinvii.iiiij
hiui.', with the lUulfMai!-
liis hiiiuis >hiiulil U- x'VA
iinl the |iriHi'i'ils |i.ii'l "\':t\
The' i.-ii'ivt. uu till- iiiijili-
it tin; hiinl. set asiili' tiioj
111 witli I'lists. /)M/ii.-(.''' V,
\,y an uiliiiiinstiatiix t^' 3,\
ltd sull tlu' laiiils ul ii.!i-
;k', witluuit taking mit aiij
(Ills, was si't asiilcas o'
I-. Winil y. .UW.,,-,,,.!- Mil
li;\il liutn Liuilty "f ;'."■
inl'i'ssiiiii iif jn'l.'iiR'iit iiM
stavi'il t!u- |irni'i.oilii::>"
ik'lit'aii'l iiiti'i-i'st, altlum;!^
ell assigiK'il, the ;i>-iji
til liave'hail until'' "i tin
tlie assitniiiuMit. Ap"i;'V,|
lulitioiitMl to save tile lilr.il^
;iiiiai:es or siiit« r<';;ai'l
; l.N^.iue A. t.itlie \'\mi
■V of V... aiiilwhiilisiiiii»;«
.' lieou (laiil to tlle \'\MMJ
now ilue ;inil lAvili;.' t" '
X. \\ a;uiiinlieil. \va:= ilalii"^
Itelilieatimi. settin,^ ■
• ry oi jilil;;iiieiit ainiex.'
■ liy <'., t'll' tlie siiil '1'
uil>jiilent was reeiivilcij I
,t tlie iilaiiitilV. ulnui wl"'
was shewn that tlieiw;
,,11 aaiiiisHi.iis iiW'W
• utioiiot thehi'ii'l: fW^
lilt the lilea. ami tliti'la
;i venliet, theeiimtlvlUSI
V. /;,„//^l)^ -J •,'• 1>. ^^^
|i,lnelll!lal■ms^■.•lUwutl;ll
,„■ witliiint his kiiiiwlelj
-eli'ilil iuiiiitiire hei
Iveilitoi- iiiiie;,,iseil :iii'l '«
1„ the .lehtiir. :»t a m%
le interest ot the l'"''>
|.l,toriio"ert^iret".l" 'M
i„l not luakiii.^auvi'i"'
, . ;,nil it was atti'vw.ii^
l(ii:i
FRAUDULENT JUDGMENT.
li]U
I il at tliL' suit of iiiiotlicr crmlitor ; ami on
th'i oliiiiii of tiie liixt ereilitor, an interiileailor
i;,-..,ti'il which was fouml in favour of tlie
i Miiil exeiiitioii ereilitor, on tlie 'Tounil that
i 'f ' . u t,i the first liail been collusive - the
I rt ri'fiiseil to I'r.ant a new trial on atlidavit.
Sullivan. •'■i "l'"» tJ>»^ atlidavita set out in the
I . »irt I'f this case, refused to set aside the exe- '
1 '^itim niiii" a eoj,'novit, either on the ground
I ,i ilifeiulaiit's insanity, <ir of iilaintitl's fraud.
n,,/, , •.<•.!" V. S'|l(ir'■.^, 1 C L. Chanil). '-'.'{1.
. ^j,j^^iiiit\ taken for a lioin'i tiile lo:ui of money
i]i,,t fraiiihileiit and void merely lieeaiisu the .
! ' irv was lent to enalile the borrower to leave |
I tl (lUiitl'V in order to eseape Iroiii his creditors, i
I (•'), 111 iiiviilved went to K., and iiifoinied him
I tli,it Ih. ■' ereditor, wa.s iirussin^' him, and he
I m'i*t k'ave the eountry. K. lent him iiiniiey to •
I liilikliini til eet away, took a eonfessimi of jiidij!-
I mciit. Iiavahle iiniiiediately, entered judgment,
I jmliUiwl exeeiitioii, on which the sheritl' seized
Ics i;i,iiils wliieh he had left liehind. 'i'lie day
I juiion'ing tlie execution, II. sued out an attach-
I meut a>'ainst the estate of ( '. as an ali.seondini,'
lilelitiirt-Held. the bona tides of the loan not
Ibdii'' ilisimted, that the object for which the
L,i,"v\vis adv:iiiejil would not deprive K. of
Itiietifiifiit of his judgiiient as against II. l/n'l
h.KUU;U(). 1!. U. !
M., tlie testator, died in November, IS47, in-
deiiti'l til the iihvintitJ'in Ci't, hiving aiiiiointed
Ideieii'laiit Ills executrix. The aecoiint w.is eon-
Itiiiucl ait'T his death, and was afterwards ren-
IdsMlt iili'feiniant and headed asag;iinst widow
IM. ; aii'l fiii'ther advances were made to her
liMUtimi-' til time, andpaymeiits made by her on
K\Mimt. iliiwii to August, ISH>, the ii.iynients
liaiiiiiiitiim til far more than the debt due from
Illif tiNt.itiir. In Deeeiubcr, LSI!), a eonfe^ssion
loi jii.l;'iii.'iit was obtained troiu defendant, as
latfutrix lit the testator. <>n a rule nisi to set ■
iBiilt till- juikiiient entered on the confession : -
liltR hy .Mi-'l.e:ui, ■!., tli;it the iilaintili" li;iviiig
Itriusiorii'il his claim against tlie estate to the
Ijniliviiliial afceiiut with the defendant, and with
lltrawut, and having siin'C reeeivial more than
iBijimt t:i cover the debt of the estate, he
ItwlilMiit sever the two accounts and fall back
|ll«iiithce-tate for the amount due at the test i-
lt»t< ilf:itli, and the judgment was set asiile.
I&.1'.'/ V. M<i.nnll. 1 1'. J!. 8.").
IVrl'iunis, J. -.\ subsei|uent judgment eredi-
Iteiii.k'fciiilant cannot attack a prior judgment
Ikiii-iitti ■ieiiey of the speci;il endorsement on the
Imt "11 which it was obtained, but he may do so
iBitir .'riiiiiii'. that it was allowed to be entered
|k;i.i;i4, anil to defeat his claim, for judgments
liUiii.il nil a writ s)iecially en !ors.,'il are for this
wqiii-tii he lniikeil uiioii in the s.inie light as if
1 uimn a confession. Where it ajipcared
|tkit til..' liiiiiii lilies of the judgment was open to
aiikiuii. an issue was directed to determine it.
llTi'""/ V. ll'i7.v()H, -J 1'. K. ,'i74 ; aiiproved of and
P«,.diii KUh, V. A'/,,„, 7 L. .1. -JIM), r. C. -
jHii'irtv. Sue, also, MrKi iizic v. Jlnrris, 10 L.
I.2l:t.' I'.C. A. Wilson; I'orbr v. Hoinll, 7
.'.W.- C. C.-McKenzie.
A jiul-.-ment will be set aside on the motion
iiasiilise[iieiit judgment ereditor, only when it
sliicu iiiocuied by fraud, and the process of
the court thus abused. If a nullity upon any
other ground, a stranger cannot be prejudiced by
it, and if irregular only, he h is im liu'lit to coni-
lilain. Ilii/foiir v. Klli.^ui, ,1 .//., !S 1,. .1. :VM). ('.
I,. Chamb. -Hums.
Where the jilaintiirs had incurred liabilities by
joining with a trader in notes, and took a judg-
ment liy confession from him before they had
dischirged siuds liabilities, or bel'ore any actual
debt was owing from such ti'.ider to them :
Held, that such traiisaetion was not necessarily
void as against the creditors of such trader, and
that it was prnjierly left to the jury to say
whether it was bona lide. Sn-iii/nr v. Unlliin, (!
c;. r. ;<!»!».
An attachment issued against defendant on
()th .Inly. ( )n the same day a summons was
served on him aliro;id at the suit of (J. Within
six months the iilaiiitill' sued out another attach-
ment. It did not apiie.ir whether the |ilaiiitill' in
the first .ittachnunt had obtained juilnmcnt, or
whether that writ was issued, or (i.'s snminons
served lirst, but <i. first olitainei! execution •
Held, that so far as appeared ( i. was entitled to
the benefit of his ti. fa. as ag:uiist tliesi' plaintitVs,
and that the mere fact that defendant w ithdrew
his plea and allowed (1. to get judgment by de-
fault, was no ground for imiinting collusion in
obtaining such judgment. Ciiiril v. h'lljll, '1 P.
l;. •liVl. ( '. L.( 'hamb. Ihirns. See, also, /'nrh r
i v. //.„,; II, 7 1-. .1. -JOit. -C. ('. MeKeii/.ie.
AVhere a trader beiiiL' in eiiibarr.issiuent, ar-
ranged Mitli the iiliintilt' to su]iply him with
goods as agent, with a right to retain whatever
sum he could make over a certain price, and also
g.ive plaiiitifl' a confession of judgment, under
which execution was issued and the trader's fur-
niture sold, jiirt of which was puiilnsed by the
|iliiiititi, and remained in possession of a brother-
in-law of the trader, in thi' house of the latter,
and the bona fides of the trans. iction was proved
; at the trial solely by the evidence of the trader
and his brother-in law, when a disinterested
witness might h.ivc been called. 'I'lie court
ordered a vt'rdict lor the plainlifl' to be set aside,
and a new trial had, on the ground that the end.s
of justice niinlit be furthered bv a si^eond inves-
tigation, /-'wi
' /• V.
//, //'/
'■//. '
('. P. :{-)().
\Vhere goods have been attac-hed, a creditor
obtaining a confession of judgment for the debtor
without service of jirocess, and execution uiion
it before the attaching creilitms, does not obtain
priority : — Meld, that on the allidavits filed no
case was made out for setting aside the judg-
ment so obtained for fraud or collusion. litn/
V. Fiili/ii; 17 <^ I!. "i;{'i.
If the judgment entered upon a cognovit bo
irregular, anotlier judgment creditor of defen-
dant 111 IV move t'lset it aside. ,l;(.'/o"/' v. d'r-
i-il/irrs, '■> v. l;. •_'I7. A), li.
Defendants being insolvent, the plaiiitifl', on
the 7th of .lanuary, issued a writ, w liieh w.as
served on the PJtli. On the 17tli an ajipcaraiice
was entered and a consent given two days after
to withdraw tlie same, which was liled on the
•Jlird, and judgment entered for w.aiit of ajipear-
ance on the same day. Kxecntion was issued oil
^ the HOth. (hi the i'Jtli of .(anuary, defendants
I dissolved |iartnership, and on the "JMrd, I no
of the defendants, absconded from the jirovince.
, A creditor of defendaiit.s, sued out an attach-
:n-!
%
If T
I F
;? ' .
JC.l.")
rii AV 1 » r i .i;nt .j u i x ;.m ent.
1016
H 'J
iiu'iit ;ij,Min>t t!iu ^.linls i)f h. uikUt C. S. l'. ( '.
«.■. ■_'.">, s. ■_', imd .•ipliliiiil luiilur s. "J'J, to set aside
tilt.' juil^iiuMit ;iii(l fxi'i/iitioii ipf iilaiiitill's for
I'raiiil mill >'iilliisi(iii in ohtaiiiiiij,' miiiiu liotwi'cii
liluiiitill's mill iL't'eiiilmit.s ; Helil, that tile with-
ilrawal <it' tlie apiiearanee liy L. umlcr tile eir-
c'Uii-.staiicvs set out ahove, ami in the alliilavits
lileil nil the iiicitioii, Mheweil siillieieiit j,'riiuiiil^<
tor setting aside the execution for fraud and
colliisioii. \\7iitr v. Lonl, V.M'. I'. l'.S!».
Where the apjilieatioii is really in the interest
of a siil)sei|Ueiit jud,i;iiieiit ereditor, the mere
faet that the jud'^nient deKtor makes an atlida-
vit in support ot the application, is not enoiiiih
t<i make him the party a|ii>lyiiij.'. Where the
delit is liiina tide due, the tircumstanee that the
delitor faeilit.'ites tlie plaiiititl's recovery <if a
Judgineiit on a specially endorsed writ, e\eli in
pursuance of a inevioiis nnderstandiiji;', while he
defends suits ))riuij,dit against him Ity other cred-
itors, is not enough to constitute fraiul The
( '. S. I'. (_'. c. "Jd, s. 17, U'hieli avoids jndgnients
ohtained oil cognovits delivered under eirciini
stances therein mentioned, does not extend to
jildginelits ohtained under s|ieeially endorsed
writs. <,)inere, is the fact that the delitor agrt^es
to expedite the creditor's recovery of a just debt
liy juilgmeiit, under any eirciimstances, a eolhi.
sive, a fraudulent, or a wrongful |iroceediiig.
White c. Lord, l.'t ('. I'. '-'Sit, in this respect
doulited. .)/'■ A'' /(-.;. w Ihin-lu 10 I.. J. L'i;i.—
1'. I'. -A. Wilson.
This action was lirouglit to contest the validity
of a judgment liy the Bank of I 'pper Canada,
against defendants, executors of Z., on a confes-
sion for U'_'17,li;{7 !ls., the iilaintitl's contending
that tlie judgment was I'ecovered in fraud of
them anil other creditors. It .aiipeaied in evi-
dence, that nearly half of the judgment w.as for
a delit due hy Z. to the hank ; the remainder
was for delits of Z. assumed and paid iiy the
liaiik .It defendants' riMjUcst, and fortius advance
ef .si;i),()()l) to defendants, to enable them to com-
plete the .Sarnia lir.mch of the (Ireat Western
Kailw.iy : -Held, that the delit on which this
judgineiit wa.'; ohtained, w.is not unjust or illegal,
it lieing clear tiiat executors may pay a delit of
eipial degree, in prefei'ence to another of the
same degree, or allow or confess judgment to one .
creditor in preference to another. The ('(ini-
iiii ri'hil liiiiih nf < 'iiikkIii v. Wiiiiilriilfcl ii/., ]'.i ('.
i". fil.'l ; Ihtinilhiiiw W'iiuilriilJ'd III'.', 14('. I', i'l.
I'laiiitill's having seized the goods of defen-
dants uiidi^r ;iii execution upon cognovit, other
execution creditors a]i[ilied to set aside or post- 1
pone the execution of plaiiititl's. on the ground
that the eo'/iuivit was void as a^raiiist (•reditors
under C. S. V. ('. c. L'il, s. 17 : 'HeM, that the
court ought not to interfere, liiit leave the jiar-
ties t'l enforce their respective claims against
the sheritr. F'l-iiii.iiiii v. Ilniril if a/., 10 ( '.
J'. 4<.);{.
It fip[ieai'ed that H.'s judgment, which was
.ittached, was made u]i for the most part of notes
on whicii he was lialih; for the defendant in the
execution, hut which he had not then paid. The
defendant had not defended R's action, though
he hid for a time defended that of the plaintitt' :
— Held, that tliis conduct did not of itself avoid
the judgment, and that the jury were warranted
in linding it not fraudulent. Siinrr v, Wmlili II,
24(.>. I'.. Itj.-|.
Where llnal judgment in default uf ;iiiii,.„ra
to a specially ciidi isimI writ w;is eiiteriil m tT
•-'.'h-d .laiiuary, and execution i.ssii,,! mi t|,J '•;,'['
of same i itli, and a writ of attitilnuLjit i||',i
the Insolvent .\etiif 18(i4, issued on tlic.'j|-,l u' 7
nary, an apiilieatioii on the •.'Sth .Nhuvli, ,',t tV
instance of tli'j ollieial assignee, to set ;wiil . ,•
judgment as irregnl.ir for a delect in tlii'iitti,"i,iv'!
of service was held to lie too Lite /j,„ ,
hiui,,, \ L. .1. .\. .s. ,.;,.,..,.,., i:,.|j;;;^
: nicliards.
.\pplieation liy tin; 15ank of Moiiti'L-a] t,,,.*
aside the judgment in this cause, lor ti'iicVii'l
collusion with the alisconding dchtur. '('lit 1
fcudant, being largely indebted to tk. |,,„X
absconded on the '.Mtli of May, ISlU, j,,!,!,,,',
previously, on the 7tli of May, a.-i.si.n,,.,l n,,., ,|
his jiroperty to the beiielicial pl.iiiitilf h,,,j'|J
'I'he judgment was on a imti; fur >l.(KHi, ,l,,tt,l
1st October, lS(i;i. The suniiiioiis u-,is'is,;n.,i
■_'7th Aiiril, IStU, judgment signeij \;\, \\■^^
and execution issued :.'."itli. The ti. u. m;is^;|!
dorsed for .s|,();i7.8.'{di"lit, and •■<l7.;i;) ,,ists! The
benetieial pLiintifl' admitted that he li;„l „||lv
advanced flOO on the note:- Held, timt t!ie
beiielicial plaintill' not denying uy cNiilaiiiin-iJie :
circumstances mentioned in tln' atiiilivits i^il.rl'
(ir why he allowed judgineiit to be ciitcri-il ;,ii,i
the execution endorsed fur .'<l,<l(l(| iiisu-iul „f|
••^400, (the amount actually due him) until the
j judgment was attacked ;' the jiidgliUMit «;,i|
fraudulent and should be set aside " IM;..,
Mi-Miiliiw, I4('. 1'. .V.'l.
( )ne of the creditors of ih.'feudaiit, an iil,.,„ii.i
ding debtor, aiililied to set aside the JM.l-iii,iit,J
i^^'c., ill this euise, for collusion, itc. It aii|i!.;iriilj
by the atliilavits liled, thit one of the iintcMiaf
which the action was broiiiilit, was AwlvA the]
same day the writ was issued. Tlnv,. ,l,ivj|
after the defendant abscondeil. 'I'ho ivlatjuiij
between the defendant and the plaintill', He
Jiroved to have been ilitiinate. A lawvir h:v
been consulted a week luvviuiisly to tiif i iiii^
nieiiceinent of the action, in relation tliiivto. aiij
no defence had been made : - llrM, tn In.' laitl
from which collusion might bi' iufenvil siulia
the statute was intended to ]irevciit. A'ovj. vj
Will, It, 14 ('. P. .-il.
A judgment upon a confession olitaiiu'il ■,"iij
trary to the ('. S. I'. ('. c. u'li, s. 17, m'.i.>^. iii>i,
the application of other judL:iiiciit civilit"Mi(
the debtor, [lostpolied to their jiiduniwit. .!/■;<'
(.Vc v. I!iiii-il il III., 3 I'. 1!. !l. i.>.
A judgment will be set aiide only mi tli
motion of a subseijueiit jiiilgiuciit ereilitm- \diei.
it has been procured by fraud, and the |inia'lj
of the court thus abused. If a nullity u]mi^
any other ground, a stranger caiumt hi- invj,
diced by it ; and if iricgiilar only, lie lias u
right to complain. Jlnliour v. EIH\iiii ii nl.A
V. it. 30. I'. C— Hums.
The suffering a judgment by ilcfa.iilt, «iieB
.Statutes of Limitations would li.ivc ln'i'ii a Isif
is no proof of fraud in iL'tcndant. If .-inli jmlj
ment be fraudulent, as giving a pivliitiuv I
one creditor, it can only be objectuil tiiimtW
ground by the creditor, and not, as in '
bv the tenant of the executor.
n'liuli'ii, 15 C. r. .31!).
.Some nine years after defendant bad ol'taiii<
his discharge in insolvency, the iilaiiititi',!
[his a
'r . ■ r
m
I ilffiUlU <4 ill'lU'llMl,,;..
rit wiis tiitiM'til .11, tin.
,iiiii isstiiiil nil til,; ;;(it|,
it of Uttilillllliut Ull.liT
[, issiu'il I'll tlii'linl Fill-
Lhc -^Stli M;nvli, nt tl,e
ssi;.'llft.', til set usiilt tiie
a ik'lL'ct ill till' :iltiil;ivit
111' tiiii l.itf. /)";iii V,
•j:i".l. -<'. I., tliiliul..-
');lliU (it Mi'llU-Liil ti. Mt
his I'anso. I'nr fnii'l \\\\
iMiliiij; ili'lit"!'. Till' 'If
imU'litiMl 1.. till' liiiuk,
II of May, 1M14, hiiviii;;
if May, iis>i.'iii;'l I'lirt .if i
uiiL'lii-ial I'liuiititV Ik-mii.
a ii.itr fur '■^l.tHH*. 'Uu-'l
'he suiiiiiiiiiis was is'.iiu.l I
giiu'iit >i'4!ii'il ITt'i May,
•'."ith. 'I'hi: li. fa. WHS HI-
:T.t, anil ''IT. :!'.!. -..St*. The]
mitti'il that lu' li:i<l "lily !
i' imti' : IK'M. that thej
lU'liyiliii 111' (•Nlil:iiliiii:.'tlie|
iR'il "ill till' alliilivits liW'l,
ill^llK'Ht til 111- rlltul-l'l iiml I
I'.A fill- Sl,MlH) ilistia.l ..t|
■tiially "Uii; liiii'l ""''1 '''«l
ki'.l ;' till' .iii.l;.'iii''iit w:«|
ll he sut a^^iilo. /''■'■'.•■'
Il21.
l-s of lU'fi'Uilaiit, iiii alivi'ii.l
to si't asiilf tlio iinl^lin'iit,!
■ ciilliisiiiii. iVi'. Itaiilrari-'ll
1, thit I'lii' lit tlii'liiiti>"tt|
as hriiuuht, was 'lati.l
1 was isMu;il. 'I'lili-i-- il'iyl]
,si-iiii.li'il. 'ri>»; rA'\(\'<\\i
mt ami thi.' iilaiiitilV. wiTl
iiiliiuati'. .\ bwyi.".- hill
k piv.viiiiisly til till' 1
11, ill ivlatini'itliuvtii.aiid
,,a,lc: - li.Vi. t.i I.' 1|K«
...i.^ht lie iiifevivil si'.ha
a.'iT t.i \itvvcilt. /'"'
a I'liiifessiiin iihtaiiu'il oinj
(' I', -li'i. s. IT, w.i.". «H
tlii'v iuil-mi.'Ut cri'ilitiTsii
to tlicii- juili;"!^''"' -"'''
I". I'l. '.1. '.'-I'-'
1,1' ,.ut a»iiU' "lily ""''
„t jU'lj-iiieiitLTcaitiinvh^
hv fnina. ami tin.' r«
l,,,'.^.,!. II '^ »"11''.^' "1"'
i-aii'^i'V ^'^iiiii"' .'"^ .i"'l'
jilli
l-l!An)ri.KNT .HlKiMKNT.
ItlliS
str
irrei;u
I/;. (//'..
Iinis.
lar oil
Iv. lio li'i^
iIl'III'
■lit
A'//:..
l,v ilofaiiU, wliei
lis wo
1 ,1 'fll
as a
iiily 1
IV, 111!
oxee
fCii a
laiit.
ivili.:.
If .-lulijim
.'Il'll'lKl.'
lijecteil til oil
utor.
it, as 111
.s7i/iM
this
ilefeiuliiut hail "I't
iilvcuey,
tlic 1'
am
itiff,
I ,^,it',li.'i\ilitoi\ is.>iii'il .a li. fa. ai.Minst ilefni
', ''{s ,, mills on .-l JMil^'liicnt rt'i'iiveli'il luloi-e tiif
'r l.in'i' iiinti-niliii}: that tliu ilisi-haij^o wa.s
I i,m.;iiise liilaiiil.uit liail, |irfVions to Ins
'*Ji„„tiit, fniinlnliiitly ullowoil a iui|i,'nK'iit to
I rtiiiVfVi'il aiiaiiist him ami Ills jisscts t.ikeii :
«.i .'lis". lii'i.':iii'*''' 'li'* ■'"'•'o-'t--^ hi'iii;,' .so taken,
't||tiiWM"i"t'i'")-' :it the time of the assi^'iinieiit
„mvhicli it eoiiiil oiierate. It aiijieiireil, how-
tliat the |il.iiiitilV eoiiseiiti'il to the assi;L,'n-
radit. mill iliil not ai.peal t'loni the onler of
.lij'harL'f ; nor 'li'l li''. when tlie disehar^ie was
1 jii./ .raiite.l. r.iise tlie ohjeetion of no .a.ssets :
H'lX tiiat the li. fa. j,' Is must he set asiile :
Liiltha't tlie iilaintiir's remeiiv, if any, w.is liy ,
■ .timi nil the jiiiljiment. .S'liilile, however, tli.it
• iiiiitilt liv his eomliiet ami laiise ol time,
, ns W"-''"'''-"''" ''"''^'' '■ /^".'/. --* ^■'- !'• •■•''■'•
■r' 11. .f that a ilthtor ilefeiulu one aetion
lllL' Mil 111" , . , ... Ill
, xj .,„:iiiist Imii liy ii ereilitor, ami allows
lil.l.uicilt^iiviU'1'iH'lf I'lir want of .an a|i|iear,iiiee
B-uinthersilit, is not siieh an i;nilue iirelireme
..iiiiu'crcilitiiras will remler the jiiilgiiieiit vonl
i aiiiiir .'•- ViL't. e. !ll>, ss. hS ami )!>. l'o'/»;/ v.
\,lel), !• wliile inileliteil to oni' ereilitor. ami
Ijlrnil til lie insolvent, assigned a note to an-
KtlicriTi'ilitiir furahona tiileileht. Snhseiiiieiitly
|i.,th i--a''litiirs lii'oiiv'lit aetions to reeover their
L,.witi\TiU'iii:iiiils. liiit in onler to eiialile one
..ithfiii til iihtain a lirst jmlj^'iiient, no ilefeiiee
'iii<i.iitewl til his aetion, while tlie other aetion
1 Ti* .kfiiiileil. 'I'lieemirt (follow iiii,' the ileeision
• V'lUiy '•■ I'lii'istie, in T <'liy. ol'-) refuseil an
liniimitii^i tn restrain the lirst jmlj^ment ereilitor
L„i, tufiiiviiii,' the e.veeiltioii sueil out on his
litiUitut. M'-K'iiiiii V. Siii'i//i, 10 <.'hy. 40.
In a suit til set asiile a jiuli,'ment ohtaineil liy ^
|i»iii a^aiii-*t his father, as heiiiL; framliilent j
Iciiiist creilitnrs, it was allegeil liy Imtli that
llild the siiu hail attaiiieil twi.'iity-oue, he hail
iMuiiii'il wiii'kiu,!,' with his f.ither as his fanner
liuil ..viTst'cr, the father iiromising to (itiy liini
Itkitwas li-ilit, hut no sum as wages was ever
|uDii."l. This allegeil agreuuieiit eontinueil for
111,- lit liilit vcars, the son in the meantime hav-
liiiiuw'. it'll ami hrmight his wife lioiiie to resiile
Iliil his fatlier, who elotheil ami maintaineil
Itkii. The father having lieeonie einliarrasseil,
iLiviim eiiiliirseil for his luother, on whieh
k!i..iishaiHveiieiimnieiieeil against him, settleil
...iiiits with the .son, he ilemamling, aiul the
lliiTa;;ivt'iiig to give, -"i^l'ia month to the son,
l.<uiiiiiiithtii the son's wife iluriiig herresi-
tox'Ui the liiiuse, a.s wages. For this aimiunt
khttathur gave his note to the son, jiayalile on
Ktminl, whieh was immeiliately juit in suit, ami
^. .vtinii lint lieiiig ilefeiuleil, jmlgment ami
paiitimi tlieieiii were ohtaineil hefore the plain-
IfimH re.;uver jiiilgiiieiit in her aetion, whieh
b .itlfiiik'il. Ahout the same time the father
p*vcyi'il his farm to the son for .>?l,;i(M), allegeil
kibvflifi.-ii jiaiil hy the father of the sou's wife,
fcliri.inity at the time being sulijeet to .several
l«tj;a^i.s, line nf them, for .'*'_',000, having lieeii
)vtiil'y tin; father in iiayment of a small lot of
I utai' Saniia, hut whieh neither the father
I". *"ii lia.l I'ver seen. The court, Spragge, V.
Ii&s.. iiiiiler the eireunistanees, tleelareil the
Tfineiit ,iiiii exeeution frauilulent ami voiil as
jPiiisttlu' iilaiiititl', ami onlereil the ilefenilants
ppy the eiists of the suit. JJomilnn^ \. iVunl,
m\. ;iii.
\ jiiilgment reeovereil at law hy the fraiulii-
leiit aeiuieseeme of the ilefemlaiit ill the aetion,
will he em|uirei| into in this lourt at the instance
of a sulise |Ueiit ereilitor ; although the rule at
law is, that only the party to the aetion can
move ag.iinst the juilgment there. .M<- Ihrnnlil
V. //o;.v, \-2 Ciiy. 4S.
.\ jiiilgni.Mit ilclitor h iT siillereil a jmlgment
am! eNe'-ntion agiinst his •.'.loils, in a suit whieh
he hill himself e luseil 'o he luoiight hy a party
■•IS trustee for his wife, iimler the assuin|itioii tlia*'
she w.ts lieiieliei ally eiititleil to the money eomu
to his hamis from the estiteof her leather, which
in l.iit she was not, Imt a thinl [lerson. her
mother, «.is eipiitahly entitle.l. On .in appliea-
tioii at the iiist inee of ,a jiiilgmeiit rreilitor, that
a eo-ilefeii'laiit with the iuilgiii"'it ilehtor shoiilil
lie ilireiteil tolih'a hill to iripeaeh the iiulgnient
.so ohtaineil hy the wife's trusti e, the eotirt
refuseil to interfere, hohling th.it fieri' was.sutti-
eieiit iloulit of the inipeaehaliility of the jmlg-
nieiit to imlilee the eoiiit to refrain froiii ilireet-
ing a hill to he lileil. Imt left the party eiititleil
til the eijiiity to take pron 'ilings on her own
lesjii.nsiliiiity. Tin.' aiiplie itiou was umler tins
eiri'um..t.iii.'es refie-eil witll'illt costs. (Iriiiniif
V. /.ii'/kiiii, - Chy. Cliimli. 4I!>. '^pragge.
When a security intemleil to he given for tliu
lieiielit of one supposeil to he eipiit.alily entitled,
although ill prefeiinee to anotlier ereilitor, ami
whiiTi woiihl itself he iliiimpeaiTialile, has heeii
given liy mistike to a wrong [lerson, ami that
liersoii the wife of the grantor, the traiisaetioii,
altliou!.''i the gr.iiitee had heeii apparently in-
llueiieed hy motives of personal adv.intage, was
held not necessarily to he impeaehalile. /';.
1 1. Mi^ii:i.i.A\Kors Casks.
Tilt, rpleider, to try the right to certain shares*
in a schooner, seized under an I'Xeeution at tho
suit of the defelid.int against \V. S. M., on tho
■Jml of April, iSli.S. The ]ilaiiitili'"s title arose
thus: 1. On the 'iTth of April, IS.".!!, \V. .S. M.
made a voluntirv eoiiveyaiue to his smi ; 'J. On
the ,")th of March, hSCiO, the slieriH', under a von.
ex. against W. S. M.. sohl to .S. M. ; ;!. The son
on the "-Mth of March, lS(i;i, coiilirmed this title
hy a voluntary deed to S. M., who on the sinio
day conveyed to the iil.iiiitiH'. S. M. had in
Deccmher. ISfil, miirt:ga!.'eil to one T., who on
the -J'Sthof March, hSii.S, assigned to the iilaintirt".
All these conveyances wi'ic duly registered at
the custom house. The defendant ohjected that
a judgment should have hecii shewn to sup))ort
the veil, ex., and he desired to prove fr.uid af-
fecting the slicrilV's sale, hy shewing that W. S.
M. supplied the niolie\ then paid ; hut it was
not denied that the pl.iintill was alionit tide |iur-
eliascr for value without notice : Held, that the
; defendant, who so far as appeared was not Jl.
creditor of ^V. S. M. until long after the deed ti>
his son, and who was a stranger to the juilgment
on w liicli the veil. ex. issued was not in a posi-
tion to imiicach the plaiiitill's title, or to require
that such judgineiit should he proved. Viiulln
V. \V<illU, •J4 (). 15. !l.
I A. sued 15., who had lieen previou.sly sued liy
('. ,tlie plaiiitill'. Moth suits were in the superior
courts, hut A. ohtaineil judgment lirst, cliieHy
hy having his ease tried in tiie County Court.
, A. issued L'xeeution and sold the goods of li.»
|:C
■ 1' '
"t ■'!
4
1G19
(JAWINU.
K.2ft
who was Ill's sun, aftiT whidi lie issiK^l ex<;cuticiii
ngiiiiist IS.'s liiiiils for tin; irsidue, aiul iiilvfi'tiscil 1
tliL'iii tor sale. ( '. tliuii liloil liis liill, cliarjiiii^,' j
tliat at the time of refnvfiiiiji; jiulj^iiiciit iiiitliiii>^
WHS line iViiiii li. to A., and tliat tliu jnil>,'inent
was colliisivr ami frainliiluiit. lint it api^'aivil
that A. Iiad advanced various sinus to !>., or](aid
tlii'iii on his account, and had also ^{ivcn him
goods to a considcialdc anioimt, while tlieii' was
no evidi'iR(! of anything having liccii jiaiil or
givon on account liy H. : Held, that the jud;^-
liicnt of A. w.is j,'ood under the circuiiistanccs ;
Imt ('. conseiitiiii,' to allow A. to examine U. as a
witness, a refenMicc was directed to a^certain the
nnioiint actually diu^ troin 15. to. A. at tlu> time
of A.'s recovering jiidmneiit, reserving furtiicr
directions. S/ciyiishh v. yir/id/.-:, 1,"{ Cliy. -KS!I.
A judgment fraudulent ag.aiiist creditors as to
part of the sum included therein, is void as \
against them ill toto. '/'/n ('niiuiu rcinl liiinic \. \
tVi/s,,,,, :i !•;. & A. iT.T ; 14 Cliy. 47:». \
A side was made hy a devi.sec to ilefeat the
claim of a creditor of the testatrix ; the creditor
reeovercil iudgineiit a few clays after the sale, '.
and hefore the |iaymeiit of the ]mrcliase money ; '
jind an unsuccessful a|i|)lic,ition was afterwards
made in the vendor's name to contest the amount
due :— Held, in a suit liy a creditor imipcachiiig
the sale, tli.at the vendee h.iil umlcr the ciicum-
stivnces no ei|uity to he alloweil to contest the
judgment. Sriilf V. liurnhdiii, liK'liy. I'.'W.
For the j)iir|)oses of an exi'cution against lands,
heirs are prima facie hound hy a judgment
against the executor or administrator of their
ancestor in the same way as next of kin are
iKUiiid ; aiul, altliougli they are not entitled as
of iMJiiise to have the issues tried over again,
still it is oiieii to them to shew, not only fraud
anil collusion, but that the jii<lgment or decree, '<
though i)ro]icr against the ilefeiidant, was in re-
spect of a matter for which the heirs were not
liahlc. /.,„;■// v. <;i/M,„i, llK'hy. -JSO.
AN'herc a judgment is successfully ini]ieached
oil the ground of fraud and collusion between
the ereilitor and the executor of the delitor, it is
open to tlie )iaities iiitenvsted in the estate of
the deceased to set up the Statute of Limitations
to the claim of the creditor, which tiic execut<u'
had omitted or iicglectetl to plead. Jurilhif v.
Il'oo'/, lllChy. (il7.
Wlicie by fraud and I'ollusiou a judgment has
been recovcied at law to luoteet the property of
the juilgmeiit delitor, ami a creditor takes [uo-
oceiliiigs ,it law for the recovery of his demand,
he is [irccludcd from ajiiilyiiig to this court for
relief, as the court of law has power to work out
nil the rights ami remedies iieces.sary to do coni-
pluto justice. Kiiii.r V. Trari I'M, 'J.'} Chy. 41.
FIlArDULKNT RKM(i\\|.
Sic I'lXKCl'TION.
Kl!i;i>i;i!l<'KSI5ri!(!H ('l'l»\V\yi|||. ,,|,. ,
AVhere it was shewn that a Mii-^.y i||;„i^, „^
this township, under7<leo. I\'. r. bl. vva.n,,i
made as nearly as could be aseertaiiifiliiiincurii.
aiice with the original survey, accordin^f to tint
act, it was liehl invalid. Jhu d. 'V,,,,^, i, '.
. 1 . .) \ let.
KltArDlT.F.XT I'RKFKRENCKS.
1. IJEroHi: ('. S. r. C'. c. •_>()-, V(< T.ANK
HII'TCV ANIt InsOI.VEMV.
II. Undei! ('. S. U. ('. c. •_>(;-*'.• Bank-
Hi rnv ANi> Insdi.vicncv- FKAriir-
LENT (,'oNVEVAN( |-.S.
III. Undeu Insolvent Acts — .SVc Bank-
ui rnv AM) Insoi.vexcv.
IV. Bv JrDilMENT — Si-C FKAl'Dri-KNT Jl'lMf-
.M„NT.
FlKtXTlKli ((ii"ri;A(.i;> i iux,,
Sli- ('l:l.MlNAl. l.AU.
FrRTHHI! ASsri;.\N( I
Sd ('ovKSANT-- loi; Thi.i:.
<;amiX(;.
1. l.oTrKlIV. IC-Jd.
II. lloi:-i. I!.\i ::, 111-.':).
III. Mis( r.i.i.vNKois i'asi:.-, li;-_'i.
T. LoriEiM.
[,sv<- C. s. ('., r. .'/.; ; .-,',1- :s I';.-.'. ,•. .;.•,]
A doelaratioii under 10 iV II Will. 1 1 j. !,,i [.ln.
ingat a lottery, is insiitlicicut it it st:itc tln' (.liiiiiei
for jilayiiigat a game "called" a luttciy, \vi;!i..iid
further speciticatioii. f /<'/•/,■- v. />"«'/('/, T. T,j
.") & (1 \'iet.
The P_'(ieo. II. e. 'iS, supcr>vdcs tlic lOi 11,
Will. III. with respect to luttirics ul Im:-
carriages, and other iiersonal cliattels. /'■.
AVherc defeiulant sold ii>v tlic |il;uiitiir .i niil
of horses won by plaiiititl'nt a ralllc, ami rcaiviJ
the piiichase money ; Held, that he cnul'l lidl
refuse to jiay it over, on the giniiiiil tlwt th
jdaiiitill' had obtained the Imnscs hy giiiuliliiig
./(iiiiiisii/i V. S/urifiHii/, |4<^>. I>. '2&2.
'J'lie inijierial statute against luttcrius, I'-M^e
II., e. "is, held ti be in force in this cmiiitn
('<irl>i/y. MrlJiiul,/ I'l III., Hi <,». H. 'A'H; r,vJ
V. W'li/ihr, |(i(,). IS. :{.■)(); Viir-^liiill \. 1'K\
C. I'. 18!).
As'sunipsit on a note uiado hy A. iwyaUt' I
B., endorsed by I>. to ('., and by <'. tn jilaiiitif
A. pleaded, ."). That he gave the iiiitutitlj
jiayee as part of the coiisideratioii f'H' tin- pu
chase of a lottery ticket, contrarv tetlk'statatt
and, (i. The same defence, with tht.' aviiiinil
that the plaintilt' became endorsee uitli full kiMl
ledge : Held, both [.leas b;„l. liel.l, :il*", tb*
under the facts and iileadiiigs, set nut infln'V
there was no defence under the st:itutr> ,. ul
gambling. 11',// //c/'/A/r v. Il"-hi. VM). I!. :«ii|
Hel.l, that under the st.itiitc I'.' <»•". H.j
28, securities given for the pii.'e nf tickets I
not void in the hands of a bniia tide him
Wll
(JA.M
Mnr/.'f, •2\ (}. IS. ■)47 ;
I N( ;.
IC:
1 O'o^^N^llll'oi.'.
LdTiruv.
10 & U Will. III. ("ii'.ivj
(lificiit ilit .st;vtftlii'clur^«
••rilU'il";il"tt''''v. «it!i"U^
(/„,./, V. />n„. //;;. T T.
•JS. suiifi>>''lt''* till' In ; ill
H.,.t tn lllttrri.'S ul lii . <,|
lovsouaK'UatU'ls. /
;,l,l f(.r tlu: iiUiintill
ntli tlu: Kv.niid
Wluri' till' i'"'y f"'""' ''■''' '^l"' I'liiiiitills liiul
,,tii.,' lit till" illt'uality. tiif I'liiiit ii't'ii^eil a
trill liiililiiig till' ili't't'iii'i.' iiiit iiiio to ix'
il.,ii,tiff sdlil I* tract of liuiil to H., giviiiL' nil
■nit'iit til iiiiivey oil iiayinriit ot' the imvcliasu
(-1.
\K. it wii.";
vA 11'
jjvi'uri'tl
r
, it nitaiii ihtiihIs, ami M. iv-snlil it in
iiiiiiii* I'l. >'■" 'i ■ 1 . 1 1 ■ 111-
IJ^. ,j l,,ttii y, V null tile iilaiiititl wa>^ awniv
iii't liail imtliiii^' tinlo with. Attci- tli-' ilraw
inaiiv'i'il that tlic iilaintilV, in.'<ti'ail nt'
m' .liiiiiM iiiti'i' iiit" aurcciiiiiitM with thu |>ir-
;j, nuicliasiuu Uy till' tiiiijii' to louvoy to tluiii
tl, lilts wliitii tlii'y liad iliawii (111 tlif tiTiiis
I J. .ijjrei.il ii|Hin, anil that tlio .sums iiayalilc
l,v tiiiiii sliiiulil lit' luci'ivi'il liy till' i>iaiiitiir
,i, aaoHiit ot the \iuriliaHi' nimay iliii' to
tiiiiliV H. Ill 11" aitiiiii liy thu iilaintilV mi thv
iiMiiiiiit t'l liay. rniitaiiii'il in miuot' .sm/h ai.'i'ci'-
miits: Hclii. that tlif .salf liy lottiTy wa.s iik-
■il uiiiIl'I' till- l-'ii-'o- 11-1 >^'- '-'''. wliii'h must lie
tMtiil as ill ti"''^^ liL'i'i.', iKitwitli.staiHliii),' our
,' 111 Vict. c. 4!> ; ami that the aj;ii('iiu'iit df-
iiitil ui'i'ii. Iii'''i;^' "" ailoiition ot' such sale,
j,ijl,l i,i,> he ciit'invi.'<l. CniKi/ii v. W'iili/' r, l(!
] 1,1. li. .S."ili.
\s\lc iif laiiil liy lot ill vvhicli tiiiTc wire two
mV.- Iklil, within tlu' I'-' Ctu. II., c. '.'S,
I ]/,„■,/,„// V. /•/,(//, ,S('. 1'. 1S1».
Till' jijaiiit ill' liaviiiu- illegally suM laiul to A.,
;,v li.ttiTV, tliis aj;rfuliioiit was cam-cllfil, ami
i:.i«iiiiv iiiaili'with li., to whuiii A. hail sohl.
i ii .iftt'rwunls ,<iilil to iluft'iiilaut, to wlniiii tlio
kliiiitili' «uhsi'i|iifiitly gavi! a ih.'t'il, rocciviiiLf a
L^riiiiyo I'lir tliii li.ilaiu'u ot' imri'liasu iiionfy.
I SdtlW li. mil' ili't'eiiilunt WL'iv loiux'iiK'il ill the
liittfry. Tlif iiiiii-tgagL' was sold hy the jilaintill',
an aitiiiii hrouglit 11)1011 it in his ii.anir.
I Hfi'l. tliiit till' mortgage was not eomiecti-d with
llEilii^t illegal sale, ami that the |il,iiutill' might
ho.vvr. r,-ii»//» V. ilnjlit/i-<, \i>(). I'l, .'i'.Mi.
.Vti'iii nil eiivciiants for title in a eoin > yaiue
liviivlVuilaiit to jilaiiititf. I'lea, that one \\'.,
liKi,iiir ileleiiilaiit, sold the land in ijiiestioii
llvl'itti'iv, and dis|iii.sed of the tieUets tor t'.'iO
Iticli: tliiit tlie jilaiiititl' liought one of the tieUets
IfrwiiW., klinwiiig that he aeted for defeiiil.iiit,
lilt, Mttiiij,'iiut tlieselieme of sale). And the de-
litiii'laiit iivci-R'il that the iilaintill' drew the land
litin' iHlivi'vaiiee dei-lareil iijioii meiitinned as
Iblinzi' ill :'aiil lottery : that defemlaiit in imi-
Ituinv III the illegal agreement exeeiited said
liniitnturi' ; and that the iilaintilV took it with
1 liiiiiwli'ilge of the cireumstanees. Held, on
IfainrriT, jilua good, the agreement set out
lilitwiiy a liitter\- within the statute. /'tun-r v.
|f«».i/;iSI,l. li! 40;i.
llnliratiiiii I'lir tlOO, agreed to lie )iaid liy
ieitii.laiit tu plaiutitl' for his right to eertaill
»iL I'iea, that one .1. .sold liy way of lottery,
Mitniry'ii the statute, to one A'., whose riglit
Kliliiil kimwleilge of the lottery iilaiiititl' inir-
ltt<til, uiil .sdlil to ilefeiidaiit with d.'s eoiiselit,
plliii.i>ii'.oycil to defendant. Held, Jilea good,
islitwiii;; a eiiiitract void under 12 (leo. 11.
Nv.''^i/7-, lie. I'. •.>4S.
I IWean iiifnnnation wa.s tiled by a eoinnion
i'lniiiT, under I'J (ieo. II., e. •JS, to forfeit
i»is illigally sold hy defeiulant hy lottery, the
I'ourt, the (iiiintilV not olijertiii!.', allowed the
o« ner of a iiortioii of the lands, who was imt in
possessioii, and had imt lieeii served with the
information, to eome in and defend. Seliilile,
however, that the interest of smdi owner eoiild
not have heeii atl'eeted liy a judgineiit olit.'iilieil
against defendant. .)/• irlmrii y. S/mt, -2] (). 15.
:ioi>.
An informatioii to forfeit land sold hy lottery,
contrary to l"_' (ieo. II. c. •_'S, m.iy lie liled liy a
(irivate indi\ idiiid, and need not lie hy tiie attor-
ney-general or any |iulilic otlii'er. No writ or
jiroei'ss is necess.iry, the informatioii lieiiig the
eomnunceinelit of the ]irocecding ; and at all
events the W/illt of it eonld Imt lie olijeeted to 011
ileniiirrer, after defendant hid a|i|ieared and
|ileaileil. 'I'lie )ilaiiitilV lihd his infurmation more
than live yens .after the s.ile conililaiiied of :
Meld, too late, for that tlu' case came within the
.'il Kii/. e. ."1, liy which he wiis limited to one
yenr. No |ireeedent haviiii; lieeii foiind of such
an information, the eoiirt siiuLtestcd that it nii.uht
he lieeess.iry to consider in any future e.ise,
whether it should not lie shewn that the party
e\|iosing the land to sale liy lottery li.id lieeii
liro|ieily convicted of the otreiiee, whether the
infoiination must not he served on the |iiiity in
)iossession of the land, whether all claiming title
should not lie I'alled u|iiiii liy iiroclamitinii or
otherwise to eome in and defend, and whether
any iireliminary iiroeeedings were rei|uisitc.
Semlile, that the land is not li;ilile to for-
feiture after it has i;ot into the hands i<i a Immi
tide |iiircliasei' for value, without notice of the
illegality, or exeeiit in a iiroeeediiig against
the Jier-soii guilty of the oll'eiice, or one ill jios-
sessioii who had aei|uired the hind ille^allv. >'.
C. /I: 4',tS.
The lirst eiuint t the decl ir.itioii claimed
CIOO, lieiiig the consideration for the assi;.'iinieiit
liy plaintill to defendant of hi.s interest in an
agreeineiit for the iiuichase of certain freehold
in'oiierty. Seeoml count, for money pay ilile for
land liargained and sold liv plaintill' to defendant,
on an .leeoiint stated, and for interest. •!., the
owner of ."iO acres, agreed to convey certain lots,
ill aceordanee with a lottery, to he held liy one
1 1. Lot No. 107 in the lottery was the prize,
ami w.is supposed to have a mill privilege upon
it. (hie \'., the holder of ticket Nd. ;{.">, lieeame
entitled to No. 107, and he reipiested .1. to eoli-
vey it to plaintill', which was done, ."suliseipieiitly
('. idefeiidalit) agreed to ]iiircliase the mill privi-
lege from plaiiititr, Imt not lieiiig satisfied with
his title, he tonka ipiit claim deed from .1., pay-
ing him fl.'i 7s., which he said he wiiild dedilet
from the amount he was to ]iay )ilaiiitiir. Fi.
(plaintill'l had drawn .iiiother lot, and olit.iined
a ciinveyanee of it upon living his note- for the
]inreliase money, which notes .1. gave to (lurk
(di'fendantl w hen he conveyed the mill iioiid to
li'iii. These notes formed no jiart of plaiutitl s
1' ynient for lot 107 : Held, that the e\ ideiiee
dill not siijiport the ilecl.iration, iiiasmm h as if
the lot mentioned therein was the mill pond.
]ilaiiititt' li;id no right or title to it, and could
not therefore hargain to sell it ; .'iiid if it related
to lot 107, the transfer alleged in the deidaratioii
was not proved, lieeause jilaiiitill', at the eom-
meneement of the suit, was the holder of it.
Held, also, that the evidence did not support a
elaiiii uiion an aeeouiit stated. /Jmi'l v. Cturk,
l-JC. 1'. 3-20.
S4 <»
iS'l'l
:lfii':i
CAol, AND (;A(»1.I:I!.
li!:'t
A ililitor I'diivi'Viil III-* I'liil fstatt' til tiiiHti'cH
fur tlic Ipuiulit lit liiw rifilitiiiH, til 111' ilis|iiisi'(l iif
'ly tlu' tiii«tiTM, lirxt, liy a lnttriy. iiml fMiliiii;iii
tli.it |iliiii 111 ilisiin.xitiiiii, tlii'ii ill trii.Ht til stll lis
till.' tniNlii's -^lioulil ilrclii must iiilviilitiijii'iius :
Ullil, tllilt .lltlKHlyll till.' iluL'll WHS voiil as til tile
trust Ciii'ii lottery, it was Viiliil uh tu the iitliur
trusts tlieruiii ilucliirud. h'uoilm: v, .\Jitiiii' rn, ,')
C'liv. III.
II. Iiiii;-;i: I;a<k.
Will le, aci'nriliiiL; tu tiie ruleiif u rai'e, t'lirmie
liuinlrnl ;;llilieas, llic ileiisimi nt the ste«arils
was til lie liiial, anil tile lilaiiilill 's Imrse wmi the
first heat, aiiil eaiiie in lir^t in the seemiil, Imt, in
'iinseiiueneeiir al!ey;eil iiiul riilinj;, was ail juil;;eil
liy the stewarils tii ha\ e lieeii ilistaneeil, anil
aiiiither imrse was |iiiiiiiiuiieeil the winner;
Melil, that tile ]i!aintiir emilil nut emitest slieh a
ih.'eision in .111 aetimi t'ur inniiiy hail anil I'eteiveil
against the treasurer ul' the raee, wliu had not
liaiilo\er the purse. '/'»;■/«(/<( v. Ilntillun, (i ().
.S. .'i-.'l.
I'laintiir ami A. liel uimn a Imrse raee, ainl
>le|iiisiteil the nmni'V \iith iletemlant as stake-
holiler. The liet « as ille;.,'al, as iieitlier of the
[larties iiwneil litlier ot' the horses, ami they
were not niMniiii,' lor .my other stake. \. won,
anil the ileteiiilant |iaiil ovir the money on his
onler. ha\ ing lieen jirevionsly imtilii'il not to ilo
so : Held, that the |j|aiiitili' might reeovt'r liaek
tile amount troin delemlant as nioiii'V had and
reeeived. J//'/'/'no» \\ llnllirnitli, |(i (,*. IV .")7 ;
Sllililnll V. /,(("•, .SO..S. 8.-); Unit, , -si, II V. Oilill,
■2',\ (.». I!. 4V_'.
hefi'iidant, lieiiig the treasurer lit a tiirl' eluli
liy wliieh Imrse laees were eomlueted, reeeived
snliseri|itioiis from inemliers and others to form
a fund out of wliiili the purses run fur weru tu
lie [laid. The plaintilf enteied horses and won
]iurses, hut defendant lefused to Jiay, alleging
that the eluli was indelited him for advanees
uliieh he had previously made: Held, that
iilaiiitiir eould nut sue defeiiilaiit fur money had
and reeeived, there lieing no jirivity lietweeii
them, and defendant lieing aeemuitalile only to
the dull. Shiiiiis V. IhiiUiiii, iVS (^. H. :!•_»;{.
'i'lie proprietor of .a raee eourse is not resiion-
silile for the purses run for, unless n]ion an e\-
[iress undertaking. Ii'uh.i \. '/'inniini, •'! ^i'- 1!.
2!ir> ; .") (). ]',. :>u>.
A winner has 1111 right to reeover his entrance
lllonev lieeause the ]iui'se iias imt lieen paid o\er
to him. S. <: -Ai). I'-. ;.>!C..
A trotting mateh for t'.'iO lietween two horses
in sleighs on the iee, is legal within l.'l(!eii. II.
e. !!(, and IS (ieo. II. e. 'Ai. Fiiltnii v. ,/iiiiii.-<, .">
V. V. KS-2.
Two parties, W. i^ L., eaeli deposited foO iu de-
fendant's hands, to he run for liy their horses on
the folUiwing terms : L. 's horse (Huteher) was to
distanee \V. s lioi'se (W'urriori three times out of
five, in mile heats. Two heats were run ; the tiist
liiiteher distanced Warrior, the seeoud Warrior
distaneeii Huteher, when Warrior's owner con-
tended that he had won the r.iec as liy the usual
rule <i[ racing, a distanced horse could not run
Jigtaiii ; - Held, that this rule wa.s jirojiei'ly held
iliapplicahle, and that the nace was not won.
il'(7.-»</( V. Ciillcii, 7 C. 1'. 47(1.
I I I. .MlsrKI.I..VNI-.iU s ( Asp.s.
In an .aelioii against the maker nf u ,|,,(|. ,■
value, payable to hearer, and tr.iii,. frrivii ,,,,1''
plaintill lor value, also, after it \mi,s i1ii,,_ it',', "'
defeme that the note was assigiieil tatl'iiij"
titr's tiMUsl'erroi- in payment of ;i :.'aiiil,|j|| ,',u"'
and throiiyh fraud. /Imr v. Mur^h, M, 'i' 1 > ' '}
No iieiialty can he reeovereil iiinlii' ^i; i ,1..
Viet. e. 4, s. !l, for nut allixing st.iiini, tn'l ^"
missory note fur money lust at pi ly, fnrsniilii, i
■Miller !» Anne, e. 14,' is utterlv' void Tu/
V. (li'ihliiiij, L'S (,». It. HIS. ' ' '
( lamliliug, liy a person w ho sMlwiiiK.iitlv,.].,,,,,^
the lielletit of the lllsohcnt .\et, is \u,x ^n\\.\
within the meaning ot the Im.s.iUoih \,,( ',•
ISCI; and, (.Ml, .'r.', whether g.iiiil.lin^ ,, n.,,,,,,'}
at all under that lU't. In n ./,„/,,,, ,i,i'li,,„i. ,.
4 r. I!. .•!17. <'. I.. Cliaiiili. A. Wilsim. "'
(i.\(il, .\.\|) C \(i|.|;|;.
I. Col i:r lliil si; Si, ('ori;i ||i,i ,|;,
1 1. Hmi. Ill ■jiii; l.iMirs s,. p.vn.,
III. I,i.\r.ii.n\ III- Siii:iiii-r mi; K„ ait
.•^lllClill-K,
[,s',
r;.v.
.'iS.
./.^ •«. ..'./.S ..';';, n.]
'I'he court refused to diseh;irge ;i prisuini'i.iiB
of custody, on the ground tli;il tlie iineli'i- lul
taken liini to ;i iii;igistr;ite upon Mis)iieiii]| nf {ijl
luiviiig committed ;i hu'eeiis in ■';ii,| /,'i,/,;„..J
V. //.'//, Tay. 4.S1.'.
The court refused to I'omiiiit ;i primmer liriiii^hlj
liy lialieas corpus from a eouiitv gn.il tn tli.-^i*
tody of the sherill' of VorU. /','
H(dd not tinreasoiKilile l.ir ;i g;iiiler t" cli;i!iH
(id. jier mile, liotli going ami retimiiiiy v.ithi
prisoner liy haheas coi'pus. /'..
In an action fur ;ni esc;i[ie 011 IIimI |irur,,.
lilea of the iusuflirieMev of the giml i- vn
/!'Hr,i„ V. MfDniKll, II. T. ;i \iet. '
Where justices have a geuenil jiirisilittinii me
the suliject nnittcr u]ion which they li;ive issiiei
;i warrant of coiiimitmeut to the yanlcr. tliMiii
their proceedings lie erroueuus, the u'anli'i'i* iiol
lialile. .Sccus, if the proeeuiliiii^s he wli
void. Ju r;iii-(.iiiii V. .l'/f(»(.<, ."1 (^1. ji. IKl.
• (•n;ere. Where ;i UKigistr;ite h;i.'<. imiK'i' th
Summ;iry I'uuishment Act, euiiiiiiitteil ii I'lirl
uncouilitiomilly w hen it slioidil li;ive luiii oil
diti.imd, u[iun his nut p;iyiiig ;i line, i.;iii lii- «;in
r;iiit lie a justilicatiou to the g;iii|cr. /''.
Semlilc: Tluit under iH (ieo. II. <: 44
j cojiy of the warrant, if delivcreil hy the L.i.'la
. witliont shewing the original, ami iiiMilijivtiq
made, will he suttieieiit. Seiiihle, alsn. tliiit
the original he deliuiuded, its prdihictimi «il
good, though shewn ;ifter six days. /'-.
The g;ioler of ;v eoiuuion g;uil is linuini t" ^
ceive and detain until rcleiised ;i pri.MiiiiT ili-lip
ei'ed into his custody liy a eoii.'-t;ilile mi ;i rlalj
. of felony, without \\;iri-:iiit ; ;iiiil ia;iy jn>ti!y j
' an iiction for false iiiiprisuiiiiieiit witliniit >lK«ii
what the iiarticul;ir felony was witli wimli f'
])laintili' was cliarge.l. Mr'lulh,- \. Mwt\uki
1 L'. V. 4.-)7.
( ; I i"i'
KiL'i:
|> C Anl.Kl!.
S" ('ill \:\ lloi -I,.
|M1I> >•■ I'MI..
iiKltii'i- I'll; l>i All:
ami rftuniiuy
I l'MM\ir nil lill'l' V'""":'
ihifli tlu'V liiivi'^'iiej
tin- ^aiiluv. tlii'iij
.■rroiii-'iiit^.
nl'iiiX'lMllll,^-' III'
It Alt, iMiiiiiiiitti'il ii l':!'^
, shoiil'l liii^'-' '"■""
I ivIcus.mI ;i iiri>"iii'-
)|;lillUni>Ul'l'll
f city iirisiiiHTs in I'fnmty vanl
AJ'
iiii'ii
t tlliTil'"!' Mll1li<i|iil Art 111' |,S(!tJ
V\ it »l!'l
■1% < •
;,IUm.
■Ih V.
\\\ i). H. .'S.-..
'■/"
it' III. <\
<illihi
;/■ llu <',l;l .,/■
(;.\i!Xlsii.Mi;.\T.
iV« Air.M IIMK.M UK DkIII-
III. (Ill I- (iiiTMNKi) \\\ f'li.vri) on I'm.ii
Inki.ii.mi: .V(. KitAi i> ash Mhimi'-
IIKSKNI'M liiN.
I\'. Hi |,i;i,ai\ .S.i i.i:i:\r\.
\'. JiiiNMiii Miiiiir^ t'vfsA -S'l Wii.i,
I. <^^
liiiDliM INTKll vr\i>-i.
Ill
(IAS ( <».MI'ANII>. !
ai'tioii ii){ain)*t a n^w i'iiin)>:iiiv t'ni' :i iiui-
i,r, » pli''' "' jllKtitioatiiill (■iiiit.iiniiii,' tlir a\ iT-
that H;,'it't t'lnni S, tu tlii' iilaiiiill, in tliin
I ciixf lit iiTtain mart's, not liuiim ,iii'nni|ianiril liy
lilflivi'iy, iliil nut vi'Mt tlic inniH'ity nt tin- niarcM
I in till" iilaintill. Siu.ll v. .\/r.O,,ii,',, li ( *. I'. ;w_».
Ill an
'I'll make a v.iliil i;iit ni pri'snnil iirii|iirty intiT
viiK, all ai-tual iK 'i\ itv ami rli iii;,'i' nf ]iiissi'.s.siiiii
\n not iiirr>.iaiv : it is siillii iriit that tin
IlilllOt
lutii:
1 (JlVlll
aiuiiii'
tliat tli.y aiv ni.w niana;;in- tinir wniks ,„ tl„. parti^.s >ii,iulil sh.« tliit tin' nwinrshii. lias
llv, ami tiiat tin.' \a]iiiiiis iMin|ilainril iil
alilv ansi', is
liail,
aHaii|ilyiiin ihr ililcmi'
lii'i'ii
lai^c
I.
'Jlli'l V,
ilM'
nil.
t"
tiu'tiiiH'i'' i''''''"''".~' '^'"^ ""^ "' '^''^'"" '""".^''^' '" t>'i>^'i'<' li'i' ''^ stiiiu|i niai'hiiii', i: ,a|i|i>'aivil
IlllS I '
th;
(,». I!, -ji;-.
(k'liarati
Miilili', tli;it a lii'iiaratiim wiiiilil In- i,'iiiiil in
I ^;,ir_iiii.' lict'i'iiilants ;,a'iii'faily \\ itii ransiiij,' ut'-
■,i..uv vaimrs tii ariso, iVi'., witiimit assigniiii;'
I ,ln|,;iiticiilai raiiNfiif tlu' \ aimis ; lint tiu' ili'ti'it
I ii.iijil iiu I'liivil iiy till' Jiii'a iiiiiliTtakini; til <lu-
I itnliftlii' I'aiisL-s, itt'., .ami tu ,|iistil'y tln'in. Ih.
\\\u-n\ i':ni tlu' ;;as i'iiin|i;in.\ ot' tin' rity nf
I j„v..iitci, iiinliT tiioii' ai't nf ini-iir|iiiratiiin iimi
Itiirliaji' tiiiiii till' I'ity, carry mi thiir work nf
I MiuiMfturiiiM g''»«. !•'*;>■■. "itimiit lialiiiity f.irniii-
1 (Hires iiijiii'iiiii" til jM'ivati' riirlits, su Inn:,' as tlii-y
Idri'iiiii nil iniisaiii'o wliii'ii tlicy umilil liy ilui'
|«irtiwveaviiiiii.Ml. Il>.
A.;iM.'"iii|iaiiy iiii.'iii']iiiratt'il iiinK'r ( '. .'^. ( '. i;.
It\ iuviiiu' iiI'Ii'l' it cliar^'e fni- a .special iliiiiniiia-
|t,i3, wliiili was ilis|mtL'ii, ri;fnsi'il tn sniniiy ;^as
|tMlii>:inif inviiiisi's fill- ni'iiinary ]iiiipiisis until
I fcnliiiii li;iil iii-'i'" li'i'il : llrlil, tliat tliis was
|n,.t jn-titii'ii, lint tliat a niainlaiiuis wniiM nnt
Itt.iistlR' statiitL' iiiiiiiisoil nniiuty ; ami that tin'
litlvivinc'iy was liy ai-tinii. Iki'i Tin <'iiiiiiii-r-
|(»i'/{'Ih/' "/'''''/""'" mill till l.iiiiiliiii ti'ii.^ Cii., "JO
lif.K'm'
AciimiKUiy incoriKirateil iiiiildr thu iiiX'ict. c.
R i"i' sHinilyiiiK IV L'ity with ga.s, will lie iv-
lltniiitililiiniig the I'lirri'iicy nf a ijiiartur fmni
|(ilttiit''ill till' j^as fniin a hnnsf, the iH'iMlpaiit nf
Itliicliliail jiaiil thuivnt fur tlu' ]iri'ri'ilinL;iiuarti.'r.
ISnci'i V. Till- Liiiiilnii liiis Cii., 7 < liy. 11-.
[.\sti) calls oil stock —.V'l " ( 'oHriiiiArniNs."]
'As til lialiiiity mi contracts imt uiuIlt s^al —
IS' "I'liui'iiiiAriiiNs."!
CKXHliAL 1,'^sri:.
Sir I'l.I.AIilNi; Xt J,AW.
(IMNKKAI, SK.s.^^ldX.s.
Ji'^ .IrsTIiES OF I'UK I'kacK — SkssIuN-
( ; 1 1 "r.
"t'tllloIlS INTKU VIVOS. 1()2(!.
Ilf LvNI)-^-.V('(- VnHN'TAUV (.'iiNVKVAMK.
that till' |ilaintill' hail wmkril on a taiiii fi
ihlriiilant, iiis ninir, sinrr liu was tun years nlil
iiliiinst iiintinnniisly until nf ay. I'l'tfinlant
hail siatril that lu' iiiti'iiih'il tu s;i\i' th,' niaihiiii'
tn tilt' |ilaiiitilt if 111' i'i'iiiaiiu''l with him until In-
t.'aint' nf aj,'i', ami tlii' plaintiti' swii' that aftir hf
caiiii' nf aj,'i' till' ili'ftii'l lilt sail! "tin' inat'liiiii'
was till' pi lintill'.s," Imt hi' (ih'ii'Uil.int) wislii'il
thr plaintiti' tn li't him wnrk it until Iw ynt tin-
stumps nut. 'I'lif ili'fi'ml.int ik'iiit'il this, ami tilt-
niaihini' hail iit'Vci Im'iu taki'ii ,'iway liy tlu!
lilantiir. It alsn ajiiK'nnil thai w hi'ii t.ixiMl with
silling till' niaihiiu', ilffimlant saiil In' was aliniit
to st'll his fiiini, ami wmilil tln'ii pi\- tin; ]ilaiii-
tilFi-Hilil, that if thr jiiiy lit'lii'v.'i'l tho pl.iiii-
tilV'.s ui'i'iiunt. thfi'i' h.nl ln't'ii a iumpltti' ;;ift
iiiti'r vivos, ami a vt'nliit fur the iilaintill' was
niiht'M. \"i' V. \'ii/. -.Ui). li. 104.
Mniii'V was siiit liy a fatliur tn his smi, thr
jmliinii'iit lU'litiir, as a !.;ift, thrniigh a hank.
I'li'fnit' any I'limiiinniiatinn liy the liaiik tn the
juili;iin'Ut ihlitnr, the exeeutimi ereilitni' nlitaineil
an attaehiiig nnler ainl siiininnns nn the liank to
pay liver. The uriKr was issueil oii the ITtli nf
.\iiuust, thirteen ilays liefnre the li.'ink ai^eiiey at
the [ilaee where the ilelitnr resiileil was ailviseil
iii till' ik'pnsit : llelil, that the aimmnt enulil
imt lie attaeheil. Senilile, that the father niinlit
reviike the jLjift, ainl therefnre it was nnt a ilelit.
('ii!.<M- V. Tli'ir/i, .") 1'. K. I'll."). ('. L. I 'haiiilt. --
Daltnii, C. C. .{■ /'.
A parent wa.s imt perniitteil tn reeall a gift,
wliieli, ill view nf the ni.irriage of one of liur two
sous, she hail inaile verlially to the twn, of ecr-
tiiiii arrears nf an annuity w liieli hail aeeriieil ilue
finiii them while she liveil with them: the
attempt tn reeall the gift imt h.iving lieeii niaile
until after the mai'riage ami death nf the son.
I'er Mowat anil Strmig, A'.CC, ami ."spraggu, (.'.,
ilis.s. Lmiij V. Liiii'i, 17 Cliy. -.">1 ; Hi <'hy. -',V.l
The only proof of the receipt of curtain niniiey.s
liy the wife iluriiig the life nf her liiisliaml was
her own e\ iihiiee, liiit she also stateil that the
liioiiey hail lieeii given to her liy him. The court
oolisiilereil her eiititleil tn retain the amount, ami
that it furineil im \iart of the testator's [leiaoiial
estate. .MrEihrmils v. Itu-ix, (1 t'liy. .'{7.'{.
The holilev of a iiinrtgage security while
l.alinuring mnlev an attack nf sickness, nf which
he siil>sei|uently ilieil, emlnrsi'il nn the iinlentiire
a ineiiiiiraiiilum assii.'iiing the same tn his wife
1027
<;r AllANTKK AND INDKMMTV
f'-r tilt' liciu'lit i>f 111 THc)!' unci liin cliililrcii, wliic li
lie Hi>;licil, Imt iliil lliit lllHx llis xr;il tlliHctri,
Jiltliiiiij.'li tlir nil iiiniaiiiliiiii i\|irfHfii'cl it to \iv
iinilcrHcal : Hi'lil, tliiit the wilV tmik ii>i liiti'lTHt
iiikIci' hiii'Ii iiNxi^iiiiii'iit, t'itlier its n ;^irt inter
viviiH, or iiM a iloiintio iiiortiH ciiu^u ; iiinl ii liill
lili'cl liy lu'r to coiiiiK'l till' fXia'iitor« to I'Xi'intv
U lol'lllili II Mi^fllllU'llt of till! lllort;{il|.'(' \MI.-i ilix-
iiuhmlmI witl. I'lwts. Tijl'iiiiij V. f'liiiki, ti < liy. tH.
(;li:iik i,a.ni)s.
Sii' ClIIIH IIKS.
(i(l()|)S.
I. AssniNMK.Nr, nil MiiltliHiiKiiK Xm Itll.l.s
(IK S.VI.K ASH ClIAllKI MiiuTi, \ii|;s.
1 1. (iiKr iiK .sVr (iirr.
111. Sm.i; Ml' Sif Sm.i; uv (ioon-.
|iiiri>l.
'I'ldhllW T/li fi'l-lll'hill /,',„„/)■,
162K
"I'lHlJ,
lii;AM.MAIt s.||n(i|.s,
•Sfi^ rilll.lc Si 11 ,
«i|;ANl> .ir.SCTKiN IIAII.WW ,,,\,
.S'c RAiLV WSAMl IImi.WW ('uM|(Mf,
(KKIhW 11,1,.
Tilt' i{ooilwill of a jiriifcMfioiiid Imisjiu'hh, as ii
Hiirjffoii H, may l)u solil iiy tlu' |p(r,Hoii,il ru|pn'si'ii-
tativi', ivml tlu' t'ontr.ict ciifoi'ii'il, wlini.' tlio
|irii-t' li:is lii'i'ii ii;,'ri;t.'il upon, or iiiiy otlnr iiiraiis
of tixiii;; its valiii.' ]iioviilo(l. It is tlu'ri'liuu an
a.Hsit of tilt' I'stati', to III' ai'i'iiiintt'il foi' in the
orilinary coiiisi' of lulniiiiistratinn. SeniKli', Imw -
(,'vtr, that tilt' )it'r.soiial iv|iri'siiitativc' louM not
lit; foiii|iillril to liiiil a sale for it. Chi-l-'l'ii v.
r/<N/v, k; c. I'. .-.44. See .V. r. 27 (.». 1'.. -Jl.
Tile plaiiititl' inutiiaseil tlie ilefeinlaiit's liiisi-
iiess as an exelian^'e Inokerat Kiiifiston, .iiel the
latter a^'l'eeil Hot to f^o into the luisiness tlleit:
again. The iiliiintill' afteiMiinls solil out tonne
('., iuiil eiitereil into a like ajjreeiiunt uitli
him : llt'lil, that the iilaiiitill' after this .sale
hail not .siuli an intertist in the eontraet with
the ilefeiiilant as entitleil iiiiii to an injiiiK'tion,
and that his reineih', if am , «as at law. Jiiiii\i
V. ir-<-/-//, i(i (liy. km;.
Dufenilaiit soM to the iilaiiititr the gomlwill of
the litisiiiess of an iiinkee[ier wliieh he was earry-
iiig on ill Loiiiloii, in this )irovinee, uiiiler the
name of " Mason's Hotel, " or " \\ estern Hotel :"
llelil, (alllriiiing the deeiee of the < 'ourt lielow).
that sueli sale iiiiplieil an ol)lij,'ation, eiiton-ilile
in eiiuity, that ilefeinlant would not thereafter
resume or earry on the luisiness of an iiiiikee|per
ill London, underthe name of " Masmi's lintel, "
or "Western Hntel ;" and Mniild iint resume or
carry on sueli Imsiiiess under any name or in any
manner, in the jiremises in ijuestion ; and wmilil
not hold out in any way that he was earrying mi
Imsiuess ill eoiitiniiation of or siieeession to the
Imsiiiess formerly earried nil hy him under the
.said iiiinies, or either nf them. Mimxn/i v. Mutuii,
KSC'hy. 4:).S; 17 ('hy. .SliO ; 1(1 Cliy. :W2.
[See, .alsn, the eases nf Cniitraet, in re.straiiit of
tnule, under "t'oNTHAcr," ji. 711>.J
(iHAFTUX H(»A1) COMPANY.
Tlie(trafton Koad t'ompany have iiower, under
10 & n Vict. e. 'Xi, s. 'Mi, to nnike contracts by
CIIAXI) IMVKIl NAVlCATIONcnMi.^vv
i>i'elar;ttion in ease for wroniifiilly ki'i'iniriii,
certain ihiiiis, and iiii're:isiiig tlie iiiii.'lit oi'ti .
same, and tlieleliy |ieliliil|i,' l.aek the Mat,.,,,, ,|||;
(iraiid river, and eaiising it to llinvaj.Miii.tt,..
pliiintiir's mills and n\er his preniisei. I'lti, n,!^^
tifying under the ilefeiid,Miits'actofiiic„ri,i,ri't)„„ I
•-'Will. IV. e. l:i; Held, ^.ninl, fiMth'tthi't
autliori/ed the nets eniiiplaiind nf aihl jiistilir.!
A( /'//// V. <iriiiii/ Itifi r .\iiriiiii>ifiii i ',,., 1 1 1 1. |t ;m
The eom|)any are not liable for imiiwiiikihiiiI
injuries arising from works eivetcil hv thtni.|
Yii'iii'i V. '/'/(' (liiniil llifi ,• \iii'iiiiii(,,ii' c, i.'il
(,». 11. ",. " ' '•'
They are lialile for iibstnietimis in the iiiiturall
eli.iniiel, and imt merely for siiili as ni'iiir intlijf
artiliei;d ehaiinels or Works eonstnuteil liy tlidii.|
/'/iil/ii V. T/ii tliuiiul Ji'irir Xiii-',ijni',„fi' Ci ya
i). 15. L'4.-.. ' ' '^
They must exercise their pM^rrs iv,is(iiiiil,|vJ
so as to a\-oid any uiiiieeessary injury tn m-l^
bouring |iroprietors. .Uum-i v. '/'A. lirnihl Hu-.i
It'ini- Xiirriiil'iiiii Co., i;i Cliv. .Ido.
(ii;A.\l» TIMNK i; AII.W A^ ( (iMr.\.\V,
Sfi' KaII.WAV,-. ash KmI.WVN ( 'n\ll'A\|],..
(JIIHAT \VKS'j'i:i;.\ i; \ll,\\A\ ruMI'A.W
.V"- I!aI1,W.V\S ami KaM.\\\\ ( 'uMI'WItX
(inoWINd ( Kdl'S.
Stf Cl;oi's.
OrAIiAXTEH A\l» INDKMXITY.
1. Ol'KIiATloN 'IK TIIK STATiri-: oF FkaH
1. Aiiraiiii iit.i ir'i/ltiii tld- Statuti; llHll.
'1. (Jiiii'tii/irii/iiiii, lii.'iJ.
II. Contract ok l.suf.MMrv, I'i.'U.
1. ludnnitilji liijuiU—Sit liiiMi.
2. lioii'h for till' dUdtunji: i)/(inVfrt
Si'i' lioNI).
llfilll Ituilil (■,„„, u|„,|
I MI.W V\ f'oMI'VMO,
,-|(;ATHiNr(iMl'ANV.
tlu'ir i^'Wrrs rciisniiallyJ
M, ,111-1 \'. 'I'll' Umii'l /.'"■•
i:i I'liv. '<^'M.
1;A1I.\V \V ( hMI'ANV.
1, l;\IIA\ \N fnMl'\M)>.
KMI.W W ChMMMK-
\N1» INKKMNI'l'V.
V3
III.
(aAlJANTKK AM) I N hKM MTV.
1 C.-M)
V,
VI.
Vll.
('(iNVriil I Hon '>>' < 'i>N IIIAI T.
I W'I'iO iiiiiiiiiiili< I'l II lliiiirmii'
.[ _|, 1,1 llir I 'i I II III III irliiiiii ii'i
J I , /,, Ciiiliiiililiin-. 1(141.
:,. iHhn' Olii", l"!4'.'.
|lh( llMtttK <>►• «it AliASluli
I M. ANI> Sl'IIKTV.
|'|.KAI'1N<' AM) KVIIIK.M K,
Ml-i K.I.I.ANKIMS «'ahKi, KM.'i.
A-iiiKiANKKN riiiM irvi, AM> .Si ui:r\
.Sm I'llIM II'AI. am> Sihktv.
iii:<7.
, lilU).
.Vll I'lUM I-
i(->4:t.
Cisiiiiiu iroN
Hii.i.s .
Ml-^SdllV
Si l!KI\.
ItKIWKKN Si I(KT1K.H
r IImiiamii: ash
Nclli;s I'lUM ll'AI
Sir
I'lio.
AMI
otluTt, il tlii'y Udiilil .ixsi't in raftiiij,' tin- tliiilitT
til (/iicIm'c', out lit' till' |iiiu Ih III it>i Miilf tlimi :
iji'lil, that nil hIu'WIIi^ till' Hall' tlirli', tlir |ililill-
tiir uiiM ciititlril til rt'i'iixt'i' fur Iiim MaucN lut
iiiniirv II III ami rci'civtil ; ami that thf >'ii'<i' uim
imt uithiii the Statiitu of KrHUiU. Mi/tmi'l/
V. <■-../(, I l^ H. .'.4-.'.
WluTi' ih'fciiilaiit iifrrt'oii tliat if tlir iilniiitift'
wiiiilil yivr ii|i his iliiiiii a;,'aiiixt A. H. \><f t'4<i,
hr wmilil jiilV hilll L'.'t.'i iillt lit till' |iriir('riln iif II
rntiiii lalt wlii'ii it >liiiii|il arm I' at i.Mu'lit'C :
lli'lil, that till' iilaiiitillriMiM .'•iii' tlir ili'tcinlaiit
, oil Hinli a^'rorliirllt ll|iiili thi' ••itiillinli riUllltH,
witlimitaii a,'i'i'i'iiu'iit in writiii;;. M,f>,ii,il,l\.
] tlllls^, « i). II. •.'».'!.
'riio iilaintitl' hail >Miiki'.l inr W. in ;,'i ttiii)^
iiiit I'crt.iin tiiiilicr, Imt hail imt hcin |i'iii| in full.
Itt'fi'iiihint afttrwai'ils i'iii|i|iiy('il the |ilaiiitiir to
gi't tin; saiiii' tinilirr tn inarkrt. iirniiii-iiii; in
' lulilitinn til lif« iiiilinaiy wani"* tn pay him tlio
nri'i'ar.'i lino liy W. : llclil, imt an uiiilrrtakiii;{
tn aii.'*\vi'r fur the lU'lit nf aimtlnr, luit anew
uiiil iiri;,'iiial |irniiii.'<i' niailr iiiinii a iliHtiiict onii-
: Hiilcratinii nf lunt'tit to ili'ltMniaiit. Tuilililni/ v.
i .»/(//.<•.», Hi <^ U. 14:i.
.v., ik'i'i'iisi'il, wa.'< iiuli'liti'il tn H., whn hiul
taki'ii I'l'it.'iiii .sL'i'uiitii'H Inr tin- ilrlit. ('., mi rc-
ci'ivinj,' tlii'Mi' .st'i'iiritiL'H, navo ll. tlir fi<ilii\vin;i;
u;,'ri'L'iiii'iit : 'I'liin is tn I'lTlify that I, ('., iln
a;;i'ci' tn Mt'ttti' all .iriinint.-* a^'.iiii'<t llif f...t.iti' nf
A., ilei'tMHi'il, lii'iiiiialtir niintiniH'il : that i«, an
: niiMuttli'il ai riiiiiit lictwrcn II. tV A., ami oiiu
niitt' nf iiaiiil lii'lil liy I ». aj^ainst the «aiil A.,
I mill out' iintc liuhl liy i). a;.'aiiist l>. : liilil, imt
withiii.tho statllti'. ' <,; inn- \. Clit,-/.; !M,i. |i.-.'|<.».
IMaiiitill' liail woikuil for M . A' I >. iit their mill,
ami tlioy owinj,' him fnr \\.'ii.'i's, the )ilaiiitilT'H
tather iimiiii.si'il tn let tht'iii have ,'i si.linj; iii.i-
I'liine to lint u|i in the mill, ainl that t)ie plain-
till' slmiitil work it until lie li.'ul saweil enough
I tn pay the arrears iliie tn him ami his wages
I while Nil eli^'ageil, ami the )iriee of the iiiaeliilif,
' tliey timlini; the power ami tiinher. |)ef.'mlant,
who was then almiit to purchase the mill frnni
M. iS: II., agreeil to this iiropositioii, ami lie
afterwaril.s i'oliilileteiltlie|iiiieliasi'. The niaehiiic
1 idiisiili'iation of the sum of one was put up ami wmkeil liy the pliiintill'. ami ile-
■ gu.irantee the p.iyinent of the femlaiit atlerwanls pmiiiiseil tn pay him liin
I IM'FRATION I'K TItK SlATlTK i)K FllAlMl.S.
1, .ji/i'i' ""■"'••' K'illi'll ill, Shililli,
" rk'1190 ori'ilit A. f 1 00, ami I iigrcv to holil
jivkII rcipiiiisihle Inr the payment ot the Maine."
in'iirt' is till" iinilertakiiig w illiiii the Statute of
IFniniU. /'"'•/■'-•v. I>iii<l,i r, •_•(». S. lOli.
Wliiri' ill eiiiisiileratioii of the sale of a vessel
1,„\_H. jiiiiu'il with him in an agreeiiu'iit tn
; linriiuii'i'-i' : llelil, a joint eniitraet, .■iltlmngh
[', « IS mily surety, ami that the eoiisiileratioii,
I iJicrtlmc, iiieil not apiie.ir on the agreement.
J',,:,ii<-'i,ii V. tininiihiiiK, M. 'r. 4 Vict.
A Lii iiaiitee einlnrseil on a note at the time of
litjfXiciitiiUi ill tile fnllnw iiig wni'ils, " We giiar-
juitir tlit'liiiyiiHiit of the within imte," does not
lihivi ;i siillii'H'iit I'oiisiileration for the |iroiiiise,
Itiii; cast' lieiiig within the Statute of l'"iauils.
JW-' «!■ V. Il<i'l 'I "/., <> <». S. •.".>."). See
\uk'f\.<>'itiiiiii, ; I,. .1. :«Mi.
The ilefoiiiliuit, owing the plaintitl', ilelivereil
It him a III itc fur .SUM), iiiaile hy one .101111 Me-
Ii.tf. ii.aaliK' tn ilefeiiil.int or hearer, on the
liikk "I «liiili ilel'einlant signeil the fnllnwiiig
[.•ajrimti't',
laii'liwl (Inllai's,
liuliiii iiiitf ; Iklil, that the guar.intee was
iKlhiiint within the 4tli see. of the .Statute of
IFmuU; Inr iiltliimgh im pnuiiise was naiiieil
In:;, Vi't till' ri.fireiiee ill the guarantee to " the
Imliiii imti' iiiaile it a iirnmise enuring to the
Ikutlit lit till' hearer, whoever he might lie.
ISiUilili', that tile guarantee ereateil ,'iii alisoliite
IfMuisi' tn [lay 111 all evelit.s, ami that ilefemlant
In* imt I'lititli' I tn imtiee nf ilishniioiir; lillt
Ikttcwas nil |ilea raising this ipiestinn. (.luiere,
|»kthvr cliliiiilaiit eniilil he treateil as a jniiit
Imlivr. I',ili„ii' V. liiikii; 'I'A V. V. •MYl.
A. Iiiiiig iiiikhti'il to 1$., ami ('. tn A., a prn-
lliH lijC that he will pay 15. the deht ilile tn
\li„uiU-^'' l'"^"'
wages while so employeil : Ilehl, that liy the
arrangement ilet'emlaut hail assiimeil the arrears
line to ilefemlant liy M. iV l>. as a ilelit of his
own, ami was lialile w ithniit any w ritten agree-
iiieiit ; Imt lieM also that his letters set nut in
the report of this eise sullieieiitly shewed a enii-
traet in writing. C/iid-w Wiiilil'ill, !(;(,>. H. ;{."»•».
H. signed a writing in the fnllowing W'oi is: —
"'rorimtn, Itith heeemlier, I.S.^S. .Mr. Pixnn —
IMease let the hearer, li. , have what gnnds he
may roipiire, and eharge yniirs, .\I. HiitehiuMnii.''
Held, not agiiirantee tor goods furnished tn |i. on
the authority of it, Imt adireetinii tn furnish the
. . . \ goods on defendant's ereilit as principal. Hut
ifaliy.V iiiiniisi.ler.itioii that 15. will diseharge Mmpcr, < '. .1., and Itiehards, J., disagreed a-s to
iniiit within the statute. A'/.i.<i-'-/.' v. H'om/- I the defendaiit'.s lialiility nii the eniimmn ciuiiita.
Hi''', 1 y. B. 344. I jviid Hagarty, .1., delivering iin judgment, the
I '.Vhiri' the Iilaintitl' ha.l l.een employed by A. I r;il<j/\';';i'l'i-'''- ''''"■•"•" ''' •'^- ^'- J'"'<l>'"^"><. 10
patting (lilt tiuiher, which A. afterwards .sold p • '' -''''•
tlie'liliiulaiit, « Im agreed verlially with the ' 15. and another had executed a mnrtgage to
Miti mill iitlii'i's who had lieen working with | the plaintitl's, liy which the principal nmuey l>e-
tht timlier heiiig in their imsaussion, that came due on default in the interest, and the
wuiihl pay the wages of the plaiutitl' ami the , plaintitt'ti also held the mortgagors' note eailoraeiL
io:?i
(M'AIJANTKK AND INDEMNITY
i
tci tliciii liy the |i.iyit'. 'riiu iii(irt]L!.ij.'ins assigiiL'il
nil tlicir tstatc- ami iirL'<ts, jiicliiiliiiLr tlic iiKJit-
ga^'cil iH'i'iicM'ty, til ili't( iiilaiif, in trust tdr (ridi
tills, and ill', in lonsiiUratinn that flu^ jilaintills
■wunlil not cntDii'i' ]iayniiiit nt tlic jpiiniiiial
iniini'V \\ liiili liail liurunii' ihu' nn tlw niiirt,t;a>;(',
l)nt wiiulil ai'i(|it tJK' inti rr.st M lull IrmiiiiIiI iiiiy
it, vi'ilialiy |iiiiiniscil tn iiay tliu imtc : Hell, ii
])iiiniist; to answer tor the ilelit nf aiintlicr, ami
that the ]ilaintiHs tlnieture eniilil nut reeuver.
L<, ,l,il. V. Mit.liJI, -JJH^ 1!. ;{U.
Held, iiiider the uvideiiue set out in tlii.s fiiso,
that there was im evideiiee nf ipriginal liahility mi
the (lart I'l ileteiidalit lor the [iriee nt the i;nni|s
III i|iiestinii ; and that hi.-- inniiiise tn ]iay iint
lieiiij; in wiitiiiLr uas theiet'niv \iiid under the
J^tatlito nl Fiaiiils. liiit as the jjiiint siii.';.;ested
on the arLrnnieiit that S. (the iinrehaserl liein;.'an
infant eniild lint he iiriinarily liaMe. the ilefeiiilant
must lie, Mas lint ta'u ii at tlie trial, therniirt
granted a new trial ensts tn aliide the event.
Miiinrw KliUi, 17 C. 1'. I'sT.
.-\. heiii;; indehteil tn the iilaintill' ill s\ ,m\ fnr
tiinher f'lrnished tn hiiii, ami ii.sed in a \ossel
Avhieli liu h;id enntraeted tn Imild fnr the de-
fenilaiit, the jilaintiH' refused tn furnish .'ny
niitre, and the defendant then said tn him, that
if lie, the lilaintilV, \Miiild furnish what further
timlier was rei|iiired tn liiii>h the vessel. In,' (de-
feiiihiiit) wniild jiay the jilaintill' fnr it, nil the
jilaiiitill L:ettiii;,' an mder frniii A. ; and that if
the iilaiiitiH ;.'nt ;iii mder frmii A. fnr the deht
then nwiiiL; hy the |ilaiiitiir tn .\., he wmild ]).iy
it: Meld, tint the innniise as tn the S|. IIMI was
vnid, under the Statute iti Frauds, iint lieiiii; in
writiMg ; and that it iiiiist lie re;;ariUd .is a mere
naked iiUihi-takiiiL: tn |i,iy .\.'sdelit. lint as made
in eiMi'i (el itinii nf the |ilaiiitill liirnishiiiu .\.
with the tiniher. Iln'iinl- v. .1/"//. ;{."> (,». I>. ;{(»7.
One .V. had enntraeted tn hiiild icrtaiii Imnses
for ilefeiiil.iiit. and the plaint ill' a^'ieed with.V.
to dn the liliekHnrk, hilt havin;; snine dmilit as
to .Vs. aliility tn pay. the plaintill' hesitated tn
go on. The defendant tnhl till' plaiiititl' that he
■would see him paid, vhiieiipmi the jilaintiti'
|)roeeedid and Imishid the v.nrk ; Meld, that
(leteiidant's pinnii>e «,is within thi' statute, and
l>eill^' Verhal niily the plaintitr 1 nuld lint reen\er,
for -As. liahility tn the plaiiitil) < (iiitiniied. ind
(lefelidant's nidy li.iliilit \ ainse frmii this prninise.
Iiu„il \. Ti-iiiliiii, ;i7 (,!.' It. ;tG(t.
\. enntraeted to liuild houses fnr defendant,
and siih let the iilasterinji to the plaintitt'. The
Jilaintill rnmmiiireil the wmk, hut refused to |^o
on withniit seeiirity, whereii|inii .\. j/ave him a
written nrder to tin- aiehiteet' tn^^ixt' him eerti
Keati's for the plasteriiij,' as thi' wmk jirneeided.
After this the plaintill ^nt iiiniiey fmm time tn
time flnin the arehiteets withniit refeleliee tn .\.
.\. failed, and the plaintill stnpped Work fnr
Home Weeks, when the def'lid.int tnld llilli tn j;n
on, sayinu he, the pliintill, knew all was riirht ;
and he till rellpnii went nli and enm|ileteil the
Work : Held, that there W.is lin slllistitutinll nf
the plaintill Inr .\., lint that .\'s. liahility enii
tinned ; and that defemlants prmnise lieiiiL.' enl-
lateral, and verhal. was void, iindei the statute
of fr.iids, /'<,iir/„r V. Ti-iiiIk;/, ;{7 i). 15. :l(i7.
An undertakiiiu as surety must, to comply
■U'ith the .Statute nl l''rauds, name the person to
■wlinm it is j,'iven. '/'//< f'lirjinrdfinii i,f' iln ('mnilii
of 1 1 urn,) \. h'lir, I.") I.'liy. -(!.').
AVhere a eiiaraiitee did "ot sulli, i,.||tly ,,„, j,
with the Statute nf Frauds, hut the tiaiis;i,;ji;
related tn an interest ill lands fnr nn,, year •!
the jirineipal li.ul ;,'iine iiitn pnsse-.siui, I'linl,',. t| ,
eniitraet and retained pnssessinn : ||,.],| ,1 '.
the emitraet was hiniliii;.,' on Imtli iiriiiiii,,ll '|']','
surety, on the grniiml of jiart iiertnniiaiuv. //
In sueli a ease .smiie nf the sureties >„|,|,
weeks .-ifter posse.ssiim was taken, refnseil t.,>i„|
a fnrni.al le.-ise. No prneeediiii,'s \\,\v tiiki-ii V'
eiifmee their undertakiiii,' until the year lial ,\.
pired, and the jiriiieipjil had -ivui uj, jmssiU,,,
a det.iulter ill respeet nf his nut :- -Hi-M, tlir
the delay was 1111 har to the suit. //,.
See //«'// V. /h 1,1,1, Im, || (^). 1'.. ;;."it. 1,, |(i;j;;.
Irnii' V. \iiliiil.<,iii,-l{) i), Ii. 4(i4. p, li;4,"i ;(;,..
lilt, II \. 11'"//, •_>.") (^). |{. ;<(;."), p. l(j;{.i . I/,',-,,,. ^
A7, ;», 17 C. I'. •.!S7, 11. Kil,-).
l2. / 'misiili I'i'I'i'iii.
[liij .'/; Viri. r. 4.-,, .- / //„ ,;,i,.<;ii,,;ir„.i, ,„,
III! /I I'l I III ill- mill It'll iiiiir iij,ji,iir i,, »•,;/;„, ^1 '
'• I liereliy ;ruarantee to ymi tlif paynuht ..
the eardiiiu maehiiie w hiili lluuli .Mi|liiiial/i.
I'!s(|., Stniie Mills, has pureha.sed fr vnii, .,|.
the terms ,i;;reeil on hetweeii ymi and liiiii :
Held, per Sherw 1, .1,, that the e.in<iileiati.iii
was sulliiieiitly .stated. Per .Mi Lean. .1., tliat.t
was lint. Uii^iiii V. //;//, () 0. S. '.).
A ;L;U;iraiitee elldnrseil on a Uute, ^•\\\^ jiiai-
aiitee the' payiiRiit of the witliiu imte. " ilmMi.t j
shew a suttieieiit eonsideratina. /.■./ ■;
l.'iii/ 1 1 III., (> O. S. •_•!».").
"Sir. Mr.. I. iiifnrins iiiethat urn iiaveailniil.t j
respeetiiii; the v.-didity nf a iiiiiiti;;n.'e fi"iii liiiiil
to you for ynurilaiin fnr the saiN .iinl ni;i,Mii:';j
1 am willing; t 1 heenine respmisihle tn ynii that]
;i ;.'i)nd and valid ninrtyaue shall he iiuule t" vmil
ill the enursi nf this fall, jirnviileil Vull eun-iiitj
tn the Vessel lieim,' titled fnr sea, iir ill ilelaiilt.ifl
yniir lint reeeivin^ it, I will he respmisilili' i.irl
the )iayineiit nf yniir deht in twelve laiuitli- ;-|
Held, tli;it this did not im]iiiit a past iiiiL-iiliia-r
tioii. ./iiiUiis V. /,'iiltiiii, S (>. 1!. CJ,").
Ill an aetion on the following' guaniiitie : "IJ
Ai\ heri'hy prniiii.se tn j,'iiarantee the payiiuiit ni
.•my sum to S. that the aihitratni's rlinsiii liyl
himself and .S, A: ('n,, and a liftli peisiui tn Wl
ehnseii liy them, may ;iwaril to .said S.. in
arliitratinii imw iiemling hettteeii the sanl |'.ir-j
tie.s." dated th.' •-".Ilh 111' Septeinlier. |S."d. tlirf
deelaratimi stated, that .11 eiiiisider.itinii tlialtlnj
|ilailitiir, at defelidaiit s l'ei|tiest, winiiil li.iv(
eertaiii ditli reiU'i's hetwe. 11 the |ilaintill ainl >. )
Cn. tn theawarilnf, iVe., tliv deleliilalit pl"IMl-i>d
tn pay him any sum that inij;lit he aHanliii
him. A liniid iii siilimissiiin was siuiieil l'> >
Cn. on the ;hil nt (letnlur, hS.'il: lltl.l.tlld
evidenee' shewing that the arhitr.itimi "•!- H'f
einieliisivelv agreed iiimn when the L;iiai;iiital
was si-iied, that the yuariintee sii~taiiK'l tll(
eniisider.itinii as iilleued, and that tln' ""!''
" iinw pi'lidin;,'," did nnt necessarily iliiply a |'.i^
eniisideratimi. .Slmir v. I'miiiSi IK 10 ',•■ "■ I'?
The plaintill' de.l.ired nu a verhal prmni-';
pav twn ipiarters' rent due on eertaiii piiim**
wliieh had heel. Iea.s»il hy the plaintill t. Mil!'' ifj
the eoll^,ideratioll heiiij; tli;it tin; plMiiHH "I'llf
1 forliear to distrain. It aiipeareil tluit wli''
1633
GU.illANTEE AND TXDEMNTTY
IG.'M
-aiN ami n,i;i!ii«;
I'ilU'll VH\l CU\IMllt3
rlit in twi'lvc r.mntli-
jj,^ was made niily one iiuartor'.s rout was
^ . .-Hulil, that the iiri)ii.i-e l)eiiig voiil as to
li!i„.,iiiiil (iiuii-ter's ro'-.c )>y tlie xtatiite, was
llaltogetlKT. Il'ill V. Ih.hnin,, 11 (,). 1!. XA.
(' hail eontriietetl with ilekuilaiits to cany
tlnir l"'"'"^''' ''■'"" <'«'ll>i'g"(KHl I ) Chicago, anil
h iKliurti'ivil tin; plaintill's vessel for that imr-
'..^ V'. lit'iiig iiiilel)te(l to the p! liiititl', gave
l*im tw" orders on <leteiMhiiits aiiiouiitiiig to f'Jl 1
Ilk (ill l)Ltiiiilaiit;a dill not aecejit the onlers
iini'liv ttliiii I'reseutL'il, Imt ret.iiiieil them anil
' ,li'^. pliliitiir a written authority toilraw on
I ;i,,,||| ;it ti'ii liays on the return of the vessel to
I ^'inii.rHiiiiil. The idaintill' ilrew aia'onliiigly,
K|,j,l^!|;.,„lants then tolil him that C. hail liuen
(ivirmiil ''.v them, ami thuy rufusi.'il to aeuciit.
lnv'is sliewii that tlie plaintilt' hail tlnvatuneil to
I ^j,j'j„ till' hiiiilier on its arrival at ( 'hieago if his
cliiiii W'l* ""' 1''''''' '""' "'"^ '-"''' '">' 'lefi'Milants
I tit it W""' ' '■'' ><atislieil out of the moneys
I (diuiic til ('. Ill' the return of the vessel : -Helil,
llluttiii-' iil.iiutill' was entitled to recover from
I liddi'l lilt*, tor that the evidence suliieieiitly
(Win-a :i disi'liarge ofC- hy the lilaiiitilf, or a
,leteliil:ilit lHHim;'-'^
the arhitratii.il «;'
,.,,1 ■\ ihsi'iiarge
I iviii.; time to liim until ten days after the return
Litlii' siliiiiiiier, eitlier of which would fimn a
l««.l oiiiisiiliratiou for defendant's iironiiso. i
Wro, wlietlur plaintitrs forheariiig to detain
faiiiiif.s hiMilier as he iiad threatened wonld
live iK'tii a sinheient eonsideratio.i, it heing '
uliii.iwn to tile jiarties whether the law at
Ciacu'ii wiiiild allow him such right, though our
biduarly woilld not. Malirtiri/ y. liium.sct III.,
log. 11. 'i.-).
liilVmlaiit gave plaintitV the following : " 1
Wiv lininiie respoiisilile to you for the jiav-
KMi'l tl-0, oil the 1st day of Aiiril next, in
a* r. fails in jvaymg you that sum." In
Wiring nil this the idaintilV alleg-'d that ■ '.
nsimlolitiil to him in the sum named at the
itteni tin' L'Uiraiit.'c, and that in consideration
Wilis 'iviii;; time till tlie 1st of .April, defendant
wjiimil t'l nay then, iSre. I>efeiiilant pleaded
Mia^sumiisit ; - Meld, that the idaintill' must
l(ii.iiisiuti.'l, f(ir the consideratii-o stated was
JKMiiiiiiiti'il liy the instrument pioiluci;il, and
4«likM [lilt in iMiie the eousideration as well as
lieirumiso. t')-()/.i v. /tnliiiiiini, \{> (). H. I()!».
.1 iciisi'il fnmi 15. eert'iii', pr'inises, eovtiiant-
i til [iiy 'vrtaiu rents (IntheliacU of the
mstlii- iiilliiwiiig Miemi.randuin signed liy
i ill' i^iiaraiitee thai the with'n rents shall
ipi'l liy me an t'njy liecome due, according
tLukiM'. in c. -0 , .' iii evei.t that the within
11(4 A. lilies nut p ly thi'm. " 'This « as sigiu'd
'Utile ilfliviry of the lease, and as a jiart oi'
■aiiii- ti'ihsartinn : Meld, that the li'ase and
iiiliir~i'!iiciit might he looked at together to
th'' iiiiii-iileiatioii, and that the letting of
I'lvmisis was a sullicieiit owe. Mirri< i' v.
.tr'"'"''. IOC. I', '.'.v.).
llkiiiaii aitiiin lirnuglit on a guarantee for the
lyuMKiit twii imtes given in p.iymeiit fur land,
iti"lli.\\iii:. u'li'irautee was given in evidenci. ;
lliirily . i.iiantee to T. I'., or bearer, the
wtii'ii ih two notes hereunto attached, said
I'lri' iLituil as foll.iWM (setting them out,) I
vliy ryrie to pav i II costs thai may occtir in
1 iiilln tioii, anil the said T. 1'. or hearer,
K'Ml till' .Mill iidtes cannot he ciplle.'teil frnm
II I'l.tlu' Miakcr of s.ad notes, liy tiie said
► E Mui- the notes and costs, to (raiisfer the
1113
juilgment to him, or if the said .T. R considers
liest, may replace the said notes I'V other notes,
suhject to apjiroval : " — Held, not to contain a
snilicient consideration on its face, and [larol
evidence not heing admissihlc to prove the con-
sideration, that it Was void. I'l rrni v. /liiniliiii;!,
11 c. r. .SOI).
"1 liereliy guarantee to pay \V. IF., itc, s]0
per month until the sum of ^'AOO due hy .Messrs.
15. and 11., \c., shall he jiaid, etc. .Signed, M.
M. ' (the defendant) : Held, void, for not ex-
pressing or implying any consideration, /'o/,-.-
ijiiirr v. Miir/ilii/, 14 C. I'. lo.'J.
The declaration stated that hy agreement he-
tween the plaintitf and .1. and II., two of the
defendants, the plaintitf was entitled, un deliver-
ing to tlu'iii '■ertaiii gnoils, to a conveyance in
fee, free from inctiinhr.mccs, of t\Mi Ints men-
tioned, tlieii suhject to a mortgagi^ to mw S. ;
anil in consideration that the plaintill" wuuld
accejit a conveyance and delivi-r up the "nods ;
ih'feiidants in w riting promised to pav the iilain-
i!;r.S">0<> ill six weeks, if in the meantime the
i IS should not he released from the niorti'afe.
Averment, that the conveyance was so accepted
and the goods deli'.'crcd ; that the inoi'tga^e had
not heeii discharged ; and that the del'endants
h.id not [laid tin ^."itH). The lirst agreement under
seal, dated 1st .lune, ISd."), Set out the s.iie of the
goods hy till' ]ilaiiitiir to the defend.intN .1. and
II., for which they agreed to pay .'<l,40(), s-2{){)
on receiving possession, .•^."iOd hy a conveyaneu
in fee of the t\M( lots, to he t.iken as ca.sji for
that sum, and tin remaining .-sTdOhy inst.ilnients
as stated in the agreeii'.ent. The second, dated
lltth .lune, ^\as :'.-< follows: ".Six Meeks after
date, we, or either of ns, )iidniisi' to i);iy to
Thonni.i Cihhs (ireeiiham S^M). \;diie recei\eil,
if in the mean time p.irk lets 7 and .S in the
(iarvan survey he not released from the sub-
sisting mortgage thereon i , A. .S. deceased."
Signed by all the defendants: Held, jissumilin-
' the ]iromi:ie sued upon to he within the Statute
' of I'rands, either as a contract by the third de-
fendant to indemnify ag;iinst the default of the
o'lUers, or as respecting an interest in lands —
that the two agreements (the connection between
which w;is established hy their contents!. ,.on-
strueil with the surrounding circumstanc.s to lie
g;itliered therefrom, together w itii the averments
111 the declaration, siilliciently shewed the con-
sideration for detemhints' iiromisc. Senible,
however, that there need ha\ e been no v ritine
to hind tile tiiird dcfemhint, for the consideration
was executed hy the iil,iintiirdili\ cring the g Is
without getting ;i conveyance free from eiicum-
hraiiees. Held, also, that iiiiilir the first ai'ree-
ment the defendants Mere not entitled to posses-
.'lion of the goods until payment of the .S'2tK» .and
, execution ol the eonvevance. dm iilinin v Wnti
i •-'.") (I. ii. ;{(i.">.
.See llhjliil V. ('iiiiniihiij.i, 10 (,). I". o-JJ, p
Ki.S!): liiHiiiiU V. .1/"//, X) (,i. r.. .•!t'i7, p, K;;}) ;
Uiitlirit 1 1 III., V. <i'i'(iniiiir,'M*i. '»• •57'-, p. 10-13.
1 1. ( 'on rii.\rr m- iNHKMsrrv.
SherilVs recommended to take ])reci>e written
engagemei'ts from attorneys when they mean to
hold tliein liable in cases they have i othing to
do wiMi except iirofessionallx , though the court,
w here tin allorncy li.is verh:illy agreed to iiulem-
m.-.f)
GUARANTEE AND INTVEIMNITY.
1G3G
iiify, if the agruuniuiit is nilmitted, will eufiirce I ceediiij,' .S-, HiO, l>y ilced clatud Oetnlicr, lS,"il
i'urlir/t v. O'Utll/i/, 8 g. B. 130,
( '(pveii:iiit t(i iiiik'iniiify "generally ainl with-
iut exee|itiiin" a;,';iiiist a cliarter pirty, wliieli
, iiiiiicr tlie eir-
ratlier witlidiit
cinisi(Urati<iii of a release of the SSO,
i^-tjCHX) (laiil, assigned to defemlantall t
■fl,i
Hid assets (fxi;(.'|it
defend lilts had assumed : Held,
euiiistaiiees of tlu' ease, tn me
exiiiitiiiii as to the di'seriiitinn of v laiiii, tliiui as ",'
to time ; and tliat defendants would lie lialile
oiilv for nionevs aeenliiiu' due under it duriiii'
in trade, 1 k debts,
hold furniture) with a
jiart to indemnify the jilaiiitill's
eoveiiaiit
d de
not
eoveiiant liv hoth
IhiHx;.
'II 'iLlVlLlllllt^l
'i-oiii :ill ,W
hid.
for .•?4,0()() as li.iuidated d
l>laintilt-i ami ,1
their oo-|iartiiershij(, and theiiee to the exjiir
tion of the eliarter.
g.
"^ formame of the eoxeiiants
uiia-cs i„r tl;
I'litH
.1 1'ur-
I'ttiiilaiit
(//■,
il III.. !>
taiiu'd in the deeil. I']
nth
■nil's cipii.
I .Sli.
The ))laiiitiir deela
u
'Oil an aetinii l.inii^i.
IMPii the eoveiiaiit to indeiimifv, and
It
to arbitration, it
rctLTiinf
not under si-a
tiiat
I sjieeial agreement, i,a,l ,,„i,l plaintitls' liabilities t
iltearrd that the ilelMiilant
eoiisideration tliat the .s| ,t;-,y
plaintilt', then being a baiiill' of a 'l'vi>ion eoiirt,
ant( eiaiiiiei
I th,
ti
do his duty as the law direetei
settletl that sum by
if s:!.-i
le rininiiiit nf
L'ttin
iir th,
iii, he 1
i:iviih'
and selling erops on the farm of one K.
aeeount of a eeitain judirmeiit olit:iiiU'd bv de-
li seizing the ereditors of the iilaintilts to wl
d.'bts
due.
sums ot iiioiHv due \
fend,
uit ai'ailist one M., he, tin
jfendaiit, then
(litors to the iilaiiititf.<, Im
sum.' with
I'llll till' sii.l
I'lllll tllu^o
l«rtiK'r,slii|i
jii'omised the iilaintitl' to indemnify liim against ],y i\
ilebts due to iilaintills and assiKiied tnilctVn.l,
ill risk that iniglit arise in relation to h
his said duty : that he ilid afterwanls, as tli
law direeted, sei^e and sell the erojis on the:
farm, bv virtue of a warrant issued on sa "
e deed above stated : Hi/M, tli.;ttl
so set ofl'l."*.'!."!!')) was not jiart of tl
;'ll (left
it had
,l,'l
iiiit
R' >II1M
t.< a;;aiii>t
eovenanted tn iii.k'iiiinlv,
meiit, and tliat aft'
erwai
ds
liil jiid
1 tl
several persons ( ■ |> i)
and that the plaintills were entitled t
'/i for that amount. Ilaihirfonl it nl.
" a vi'i',li,.t
'''. I'.'
(1 goods, sued the plaintill', and
elainiei
reeovered a vcnliet of t.")((, will
iblij^ed. to pay ; yet that the difeiidant, liaviiij.
■\\ 1
le nail
tlr
l»eft'iidant, took an assigimu'iit of a
liiitil!'.
li'.l.H' tnii:i
eovenantiiii,' to perform ;ill the
notie
if all tliirt, refused t
o imli
mnity aeeoniing
eovenants in it on plaintili"s part, ami to iiulf
lit. A verdiet havin;; been foiiiui
to his agreeme
for the pl.iintiir, held, on motion to arrest jm
nity liiiii against them.
1
ment, that the iliel.iration sullieieiitlv
■laintitr for b
and reeov
L'h ol tl
The h
ssoi' stu'il the
ered, clefemlaiit 1
le eoveii.iiits to n
I'^ir,
laviii^' imticc i,f j
lat tl
le p
■till'
reipiireil to di
ith
I liieh might (lossibly turn out not to be a le
e.\cention ot the [ir
leess, aiic
tl
lereforo that the
agreement was not illegal : Mild, also, that
siifHcieiit eoiisideration apjieared for the promise.
A'o/ii ;7.-.'oH v. Jinx Ill/ill,/, IIQ. li. 407. j
Held, that a party giving an absidute eoveiiaiit
the aetion, and, aeeoniing to sonic ui' thi wit-
ne.sses, having sanetioned the defelu'e i-iKhl
that under defendant's eoveiiaiit the iilaiiitilfj
was entitled to reeover the damages .uul I'usts
in that suit, but not to iute ■ S/mir' \ \
Hid,,!; ■.>4 (>>. H. -1".
AVlien there is a eovenant to
lor titl
nnu'tgage \\\
id a bond eonditioiie
poll the huiil bv a d
I t,
pay
ill
the reeovery against wliiih it was
HiV,
IV nanieii
ibtained witi
lout
M
;iviii was I
liable tcpi' the aniipunt of the mortgage, tin
th
e eoveiiantor haviiii; an
eolliisioii ami fairly ilis|piiti:.l,
ipiprtiiinty
h'.'al
pi'oreeilings li.'ive
been taken on it by
f _ fering. <i»ua're, whether, when sued dii the. '"Vf
(■
I'. 4.".(1
jiarty is ciamiu
lieil.
llehl, that tl
le value (p
(.'.I
'.Is
'/;.-'/,
,1
jud,'.'ment reeovereil upon a mortgage niaile by
Ih-il,
th.
nant, he can dis|iute the liability of the
nantee to damages so reeovereil. Id.
Held, that the faet of
the ipl.iiiitill's, against w hi.
di tl
ley lie
hi
l IpoiiiI ol
having undeitakeii to indeninily
lawful acts done in his ojiiiial ranac
;i iiimiK'ip.il I'l.uiM
liii'i' I.prj
11':^ ii.ii
eitv, ih
iileiiiinty from di'l'i'inlant, did iHPt lorm tin
iiieasui'e of damages, but they were held eiititlei
ntitl
him
to look to them fnriiuieiHiiitvaL'.iiiul
tl
to reeover the ainouiit of sue
h jud;
'luellt. /i'"',
le eoiisi'i|Ueliees i
staiiee, in this ease,
it 'in
lawf
ul
arts, as, li.r in
of a wroiiu'fiil ili.-itri's
iiiia
iiiuinlit ((/. V. CnajKi; 8 C. V. '.ibH.
that the iiliintili'eoiild not be allnweil t.piiN|.v
the judgment of a eoniiieteiit eourt
A person who indoniiiilies the sherift' for sciz- Ir. was lield to be aw
mr
Is does not bythataet beeonii
lable as a f '
I,-
mIiIoI
7'il
trespasser. MiLvnl il at. v. /'o,'/////., 1',! (). 1!. OS.
jiiiriititin iif J/((/'(/<i/.v(/, '2'2 ('
Hehl, that nil ei|iiitalple plea in an iutiipii liiiiBj
The plaiiitiir anil M. having been in partner- ' a note that the iilaiiitill' had
laiiti.l t.i pa
.ship, on their dissolution M ., with the two defeinlant's debts, whieli hi' h.ul limki
other defendants, agreed to pay the debts of the by defendant was damniiied to an am. unit i-iiU
linn, and t.p relieve th" plaintitl' therefr
to th
it ipf the note, vas had, ;mil sh..
eoi
isideration of wliieh the iplaintiU' assigned to : lie stiuek out as
emlparra.ssiiiL;
Ci-lmil,
defendants all
its, k'\, due to the linn. In (.'rijil'li, (> V. U. 172. -('. 1,. ('liaiiih, Cnyii
an aetiipii against defendants foreerlain <lebts due
by the linn, wliieh the plaintitl' alleged defend-
ants had not paid, and for some of \\ liieli the
plaintilt' had been siieil, and jiidgniiiit reeov-
ered : Meld, that the plaiiitiH' had no right <pf
aetion uiiles-i he had himself jpaid sueli dibts.
ih-'fi/ v. M<-Mill<ii, it III., •_'•_• {). 15. 4.")(i.
W. sohl and eiinveyed lands hy iiuti's
bounds to 1!., who conveyed tn 1>. hy a .la
itaiiiing ,'ibsolute eovenants for title. .\ |i<
tion of the land so eonveyid was sii
hst'lllU'llH
elaiined by one
was brought by
an ai'tiiiii nt iji'itnui
im to reeover ]
HlSSOSIIPll .
il I), instituted proeeediiigs iiinler thi' m]
The iilaintill's being indebted to defendant in nant against 15. ruder these eireumstiiKi
.'*SO,(HH), and to other parties (whether partner- exeeuted to his vendee a iiiiii'tga),:e t.
Hhip ur individuiil debts) in an amount not ex- him ngiiinst all damages, ensts aiul
ihuriji'sl
11)3(5
tf.l Hrtiiiitr, 1S:>'.>, in
.f the SSII.lKHt, ;iuil uf
'oiiilaiiliiU tli"ir>tiKk
linlilV- iriiiii ;iU M-U
my S'_MtiO. Mill iii'ur-
iiiulitl's ;u\il iWkiiiluut
(iMiiayrs !iir till' (Hi-
lts oil biith >iilus lull.
Kill !\ll il'tinll lil'.mgllt
Iciiiuily, iin.l rckT.iiif
■il lluit tint ilcltiulaiit
itii's to till' iiiui'unt i.i
(Ulii of s:i."ii;, lie Iwviii;^
tiii;^' olV tlK's;\iiii' with
ititVs to wliuiu til'.' siii'l
iiioiuy iliu.' t'l-iiiii tliH-i;
itVs, liL'iiv^ \i;'.rtiKr>liiii
111 ixssii;iu'il to ili-fi'ii.l;iiit
il -.-HfM, th;;t till' Mini
|.!irt of tlif 'lil'ts ;ij:iiust
ivi'iKUitiMl fn iipU'iimity,
■eri! fiititl.Ml to a WV'M
,,-hjr<l 'I 'il. V. .•—■■'. !■:
siyuiiu'Ut of a lr;\.-i- (vi.m
.iim to \n-ifonii all tlw
itilV's part, ami to iii.Wm-
1. 'I'lio K-ssor siifil the |
till' I'ovi-ll.lllts to xy\m._
frinhint having iiotio -i ]
ilillji to S'otlic of till' «,t-
liucftlii; .k-f.'iKr:-U''l'i.|
,'s covcliiUit till- lila.uutll
^,^• till' tliuiiagf* .'"'l '■"'»]
t to iiitc ■■ ■"•■;""" ^■■1
vonaut to ..'■ • uly, Mi.lj
wUi.'li it was j;ivni vv;ijl
iisioii au'l fairly ili^l'iitnl,!
tmiity "I iiiti-r-r
.(1 on till' '-■"ve-
4 an o\nioi'
,r, wlu'ii sui
tho lial>ilit\
i.f til
K oive-i
1.1. il'.
,-t of a II
niiiioiiKil o'lUK'i
■o UK
Uiuoify all oliiiir I"*
illicial '-ai
aiitv.
.riu.li-iuiiityapuuJI
ful
Itlu'inl
unlaw
If a wi-oiij-'liil '•'
acts
Il not lioa
llo
as, I"i 111
stress '.
I toiiu)'>->i«!l
.pctcut court l>y wll'>;i^
Iwioliiiooi'l.
[il.lc i>W
litV bail coven
all ai-lioii "1'"
lllll'lL'l
aiit.a t.i \<i
\•.^■ hail lirokeii. «lii'
milt e.iUi
lll.l Sll'il
(Avviia
I to an am
itc, Mas
li;
iilian-assini;.
('. !,. Clianii
lamls liv
,yi'ii
vnvcyi'
il to
l». I'V
llVCll
liiivi'Vcil
lilts f.T tltlf
was s
I, I an action
,, recover V'""*''
llliseil'li
of cjeetli
simi "
lfi37
r;T\vij.vNTi:E and TXDi:>rxiTV.
1 r,;^s
riiiect iif tlio action of coviiiaiit. 15. sulisc-
ni'utlv conniroinisi'il with 1!. rusiioctiiii,' his
'him:"-H'M. tli.it W.'s estate was only lialile
t r \vli.at slioulil lie founil to lie the value of the
jiR'
fS lllll
,eeeclin>,''
I'l- these cue
,. a iiiort>;;iK"
ler tlie
UlllstUK'
to lllile
mill
Itefcinlant emioi-sci" notes for the aeconiniu(la-
tioii of the ill iker, w ho w.i.s in Imsiiuss asaclrug-
l^'ist, without kiiou Iiil; how they were to ho
apiilieil. anil tlie linker transl'erreil them to thu
;es, co:
sts all"
I eluil'l^ell
.... lit laiul so elaiiiied, ami not the amount ]iiaiiiti(l's lor ljoihIs pmvha.seil from them. I>e-
iil liV his veinlee on the oeelsion of the eoin- i'einlant not lieini; lialile upoii them as imtes, the
1'
uriiiiiisc.
lliiil V. ISiiirii, 7 Chy. 117.
sums piyalile li.'ino uiieertain : Melil, tint there
.,,. , , i <■ \.- 1, 11 w.is eleirlv no riiilit of action ayainst him as uiion
The jila.at.llenih.rseil notes for \\ I... vvlmh „,;,„t',, l.'<>tn.:.f:rt y. /'„7»„ ,-,-J0(^ H. :i07.
,r.. ilscouiiteil at two ililterelit h.iiiks, ami 'A . * ' '
«.jreiliscii
lii.H
r iii'li'iiniitieil iil.iiutilt ai,'ainst these einlorse- due 1{., re(|uiriii;; fonie (iroof spirits for
iiii'iits liv luortgai.'e. The notes weri' (laiil when tr.ule, iceeivect from defeiiilant a letter to tho
Jiit at these liauks, with the jiroeeeils of other iilaiiitill", a ilistiller. to whom ilefemlaiit wa.s
iiiitcsiifW. B. . eiiilor.seil liy |ilaiiitilt', ainl ilis will known, hut 11. a straiioi'r. There hail lieeii
iiiiliteil at a tliinl hank : -Hc'lil, that the in- no inevious applic' ition hy II. to the iilaiutill' for
ilmiiitvsccui'eiltlieiilaiiititrai,':iiiist the last men- a credit, iior had the latter lUeliiieil dealiii'.; with
••uiii'il "cMdorseliieiit.^. linrnhdiii v. JJur.'i/itrui,
10 liiy. 48,').
Stiiihlc, th.it indemnity u'iveii to an endorser
,,11 iiriitect him a'.'.iinst lialiility on any other
wuritifs, in whatever shape, to whii'h he may
ln-coiiie a Jiarty at the ivipiest of the lU.aker, to
'mi the iUiiounts of the iiot.'s oiitst.iiidi}ig. /'>.
111. CoNsTuriTioN oi ('ii\ri;.\iT.
1. W'liiil Aiiiiiinit.< ft) II Cihii-iiiilfi .
A. ediitracts with a eompauy to make a high-
wjv, :ili'l 1''- hecoines his security to them. A.
fjiiin emiiloys ('. to cut out certain timlier for
aim. Mill wiiile ('. is thus eii,uis,'eil A. fails in his
„ntract\vitli the company. II., the surety, tells
i.t'i'i'ioii and he will see him paid. L'pou
...'iiiilftiii;.' his work ('. sues A. and 15. jointly :
-Hcl'l, that there was no joint eontr.u't hy .\.
liim without a ;4uarantee. Tiie htter was as
follows; "The 'learer is Mr. II., a friend of
mine, who wishes to pureha-si' soine iiroof spirits,
which he hears that yon in.i.mfaeture. If you
e.iii arraiiue luitters to your mutual s.itisfaclion,
1 am sure that Mr. It. will prove a very relialilu
]ierson to deal with. I will myself, with pleas-
ure, hecoiue security for aiiyrliin^ he may ho
ilis|ii)sed toi;i\e an order for :" -Held, not a per-
fect guarantee in itself, Imt that to make it such
the iilaintilV should have liotilied defendant that
he aeci'pted the in'oli'ered unrirantee, and th'.tlut
had Lj'iveii or meant to givt; credit to FI. on the
strength of it. Kiis,i,< r\\ Whishniliii, •_'() ( '. 1'. 1(11 .
The owner of a mill |u-operty wrote t > a'l in-
tendino purchaser, " I will sell the mill as it now
st.iuds, at I llenmorris, with all riglits and privi-
leges lieloiiging to it as sold me, and I will guar-
antiee to give a head of live feet hy l.iying out
ahout f.'MI ; hut as it is, there is four feet, ami
dB. with ('., hut that A. was primarily lialde there is w.iter enough to run ten run of stones if
„n his euiitract, and I?. ;is a guarantor. A/'A-./kx
x.Kltt'jdfil., .-)(>. n. .SlM.
.•<ii- —Mr. .1. informs me that you have .adouht
rtsiieetiiig the validity of a mortgage from him
!■! villi fur youv cl.iiiu for the sails and rigging.
Uiii willing to hecome respoiisihle to ymi that
;»iolaiiil valii'i mortgage shall he made to yon
■itheeiiur.se of this fall, ]iroviileil you consent
!<ithe vessel heing lifted for .-lea, or in default of
viiiir imt receiving it, I will he resiionsihle tor
V.K iKiyiiieiit of your deht in twelve months :
Ht!il. i. All actual guarantee, and not a mere
[.pilKisal iV()uiriiig acceptance to render it hind-
is;; 1 That oll'ering a mmtgage snhjeet to two
pniif iiiiirtg.igcs, (which were given moreover
j'tei tiio i;iiaraiitee) was not such a valid niort-
. . i< the u'liarantee imported. Ji ukius v. //"/-
. ^ (,i. 11." tl-J.").
'iV. mailc a note payahle to pi
ll;ii)ti.\lile, which delendaiits eiidoisei
necessiry ; Held, tluit these representations
amounted to express guar.intees, uiion the several
jioints emhraeed
Chv. t!l2.
ill them, (lull v. Ilnhi rl, li
S. hy letter inforiued It. and K. tint his son
was ,1 )iartner in a lirm, and that he had ad-
vanced to him I'.'flMMt as his share of the capital
thereof. The lirm having f:iiled made an as-
signment, in which S. wiis preferred to the
■imoiint of Cl{."iti."), represented as mid-' up of
liKius and ailv;inces to the tirin. The actinil
capital advanced to the son appeared to lie only
CKHM): Meld, notwithstiinding, that S. was
hound to imike good his reiircseiitation to 1!. it
K. so far as they alone were eoiiceriii'd ; hut
that other creditors could not p:utiiipati . the
representation heing only to a i>articul ir credi-
tor ; unless it should apiiear that a jiortioii of
iiititV hut not '^''"^' lirclerred claim of S. was not a deht of the (irni
I. It was t" h'ui, hut iiin--istcil of ci)iital adv;.nceil to the
pvid tn have heen given for moliev lent to W. •■<"l>. "' "''"'I' event that portion woilhl he applied
kthei.l;iiiititls in .lefendants' i.rcsenee, and for "" t''''"' chums, it not appcinvg that the g Is
ilidithev agreed to heeoine seeiiritv; that one of furnished hy them h id heen sold Ulmn the laitli ot
themluiil'iwiil interest on it, and that hotli hid the representation to K .iS; k. : hut S, nihle. it that
wiiiiMil til pay the note, when s|iokeii to
lilt iletelidants could not he held liahle as
sii'iiAiinte, nor as on an aeeoiint stated. I^>ua'i'e,
j 'bethtr the iilaintitl's eould Inive recovered as
f 3I«'ii a i;iiar,'uitue. SkillM'tk it nl. v. I'urtt r <l
■'.UiM',. 4;iO.
1 Kii.iiaiitee thu payment of the within,"
tiiiliirsiil uu a note, over the signature of the
!«*, UiMteil as an endorsement of the note,
I 111 I ill it 111 a guarantee or colhiteril eiigau'emeiit
|:oritiiiiiyiiieiit. Walk, I- \: 0'J,;;//y, 7 L.'.I. 'MO.
-''■ t. -Mackenzie.
i.ld heen shew II to h:ive heen the e ise, they would
have had tint right. J'niiii ;/ v. />ifl.:<"ii, S( 'hy. 4(t."i.
1). having negotiated for the inirchase of uii-
pati'iited hinds, ami the vendee of the crown
rei|iiiring security for the ]iiirchase money, l».
oht:iiiieil from his father a h'tter addressed to
hiinself, .as follows ; "If you in:ike the contem-
phited ]iurclnse from li. of wild lands, amoiiut-
iiig to Id.tHM) acres, at ."«'i p.r acre, and deduct-
ing all amounts due or hereafter p.iy.vhle on tho
same, I will hecome your security for the pay-
ment of the piimip.ir oil the crown iiin'is and
'■t I
1 O.V.i
GUARANTEE AND INDEMNITY.
interest, ami the interest mi the cleeiled himls."
" r. S.- I will see ydU have tile f-'OOO ti) [lay in
casjiwlien all jiajieisare .-iiyneil :" - llelit, that this
letter was nut a iirmnise to jnoviile fur the liav-
inentiif tli<' t''_',(l()Oeash, which eiiuM he entiireeil
]>y tiie venihir. Ililliiri II v. J)ivl:'«>ii, 1» Chy. 414.
'1. Kill III III' Liriliilihi.
"Mes.^rs. A. & !•. Shaw : (ientlemen, — I
have jn.st reeeiveil a line troni V. intorniing me
tliat he wishes U> Jinrehase ^'omls fnuii you.
JJein;,' ae.[ii,iiuteil witii his < ireunistaiiee.s, ami
knowing liini to Ik^ a m.ui <it prn.lenee iml in-
tegrity, 1 do not hesitate to lie res|ionsil)le to
you tor t'l.'iOoi' i'JlM) worth of goods, should he
rei|uire that amount ;" - Held, not aiijilieahle to
the 1)111 ehase ol' ^ood.s liy I", and a ii:irtner. lint liy ,
F. ahme. Sliiiii-ii III. V. \'iiiii'ii.-iii, ."•(,>. M. ,S5,S. j
The executors of sureties are lialde for the'
(!efalrati<in of the iirineipai coinmitted after the
death of their testator, and ->en after notice
given hy the exeeiitoi's tiiat they would not he
liahle. Iliifiiiil V. I.ri ili'niij, 7 <4*. li. ;;<*!>. \
111 an ac.ion on the following guarantee: —
"Wliereas II. II. it Co., of .\ll>aiiy, li.ive author-
ized S. and .!., of Hougliton, Canada West, to
draw on them to the amount of .•>,">, 0(10 ; and
whereas the said .S. and .1. [iroiiiise ami agree to
Hhi]i to the Slid II. H. X' Co., a sullicieiit c[iiaii-
tity ot luinlier, in tlie nioiitlis oi .May, .liine,
July, ;uid .Viigiist next, to \y.\y the .same. Now,
therefore, in eonsi<leratioii of .'<l to me in hand
paiil, I horehy guarantee to .NIessi's. H. ll.>'(:Co.
that the lumher .sli ill go forward .•igree;il)ly to
eontraet, and in ilefault of the s.iiiie, I will lie
resiioiisihh' to them to the amount of the .id-
vaiiees, till' same not exceeding .•*.'>, 000 :" Meld,
that defeirdant was not entitleil to credit .as
i gain<t his gii.irantce for tiie gross value of the
liimlicr sent, Imt that the [il.iintitl's were entitled
to ili.cluct their charges. Id Id, als(i, lii-.t tlii
declaration, as to the statenient of the eonsider-
ition. w.is snlliiiently suiiporti'd hy the proof. :
K,4n
der an agreement, to do a jiortii'ii of the wi irk
The iihiintill eoiiiiilaineil that .S. did nut i,. ■
him as he had undirtaken to do, and w.i.mi,,',':!'
ling to lH'oceed, and after some neiiiitiatini, ii, .
toliowing pajier was signed ; "Stratluiij •''|'. v
.May, I.S.-.N.- .sJiKS.-Cood to 1'. A. l.„l't,".V,l';,
plaintill) or hearer, for .•<1!>S, jiayahj,. >.,, .,„„u .
I.ottiis comidetes and linishes his < ontr.Kt it I'
C. I.te's tlwejling house in Stratfuiil. 'x\^.^
Scriingour. " 'I'liis was endorsed liy di fciiilair
Kee, anil at the foot was written as l'illu«< -J
" f.'iii. A fnrtlier sum of tifty-si\ iiniinilMuii
lie due to l.oftus, lieing lialaneeof eoiitiart tin-.
months after said contract is e(im]ileti.i| jhhI ui
ceiited hy the architect. This sum I Mriui.t,
l.oftus for account of .Scriingoiii-. f. ( , (^..'
A. .Serimgour. " 'i'hu work had h.ci; ciiiiM,li.t^.,i
ami eertilied : it was imivcd tint heii.a- till
writing was signed defendant had told tin- hy,,.
that it he wouM wait he would he ,iii,,«i.i-il,i^.
for the ^^hoIe amount due hiiu, and ileieiuiii'it
had paid the plaintill' s\\o, f„r which a l■l.^,!j|,t
was endorsed on the paper. The iir.-t iMUnt n| tin.
declaration alleged that in eoiisiderati- n that thr
j pl.iintiir, at detcndant's reiiiust. WoiiM |,r,,ni,i
with the w ork, defendant priniii.->eil to pay him tht
t'.'ili, i.V;c. ; theothercounts Were lor wiiiiiaiiil ii,a.
terials, and mi account stated :- Held, that t!i.'
plaintill' «as entitled to recover the C."ii;, liuti,,,;
the li.ilan.'cof tlie.'l^i'.W. I.oj'li(.<\-. /,t,, hSW.Ji. |ii,-,.
< »ne T. contracted with two tiriiis in (,Iih.1k,
X. & Co. and M. iV Co., fur advaine.>, tn 1».
covered hy .--hiiniieiits of timlier witliin a .^|.,,:
lied period, agreeing to f'lrnish dcleiiilaiit'.- uu.,
;;iitee for iierlormanee of his |i.irtof tlic inii;i,i.
Hefendant in a letter to M., a paitiiei- iiiniuM.t
the (inns, gu.ir.intee.l thatT. woiiM iiiini.ditinil,.;-
in tlie year I8.")il, eipial in value to the adv. ih-
made hy him, .M., t i said ']". :- H. Id, j. Ti at
an action hy M. ahme he could only ivcuvtit.
ainmint of /k'.s mrn adv.inecs to T. ; •_'. That .\i.
must, as lar ,as defendant was cou.erinii ■•'i\
dit fi
llimlier receiv
d
Sli
hy liiiii iiiiiii i
(/ ((/. v. Mif.iim, 10 ( '. r. 411.
Ili'jliit if III. v.
Cin.
'1,1 1, 10 (,». H. •->•.'•_'.
.\p
il, I.S.-|0, 1!. Ill
seciinlv to tin
Defendants on the '.'Oth A
tl
pnl
lu writing the jiaymeiit to the jil.iiatill.
pl.iintilis for .S. to the extent of flOO, .and .S.
;aril
of his .ICCOIlllt <
tlieieiiliou receivei
ids f
nun tliein
to till
nursery [iroidietions to
le ilelivciv
ainouii
t of fl.">l. In Apri
1 .S.
ilesirei( \o niilie
furtlur purcha.se. \l. unite to t!ie pl.i.ntiU's h
spring
liv 11.
lid
tl
iaihst II. !
I t,i II. til
payment to he made to the |
ilaliitil
itv to the extent of CI
am
1 in 1
lis
lette
d.
I iiiiderstanil from S. that he
as p;iid you f"."' on .lecm
lilt ot the L'lOO.
r the deleiidants within tvveiuy day
Iter receipt of tile Uees hy H. ( i|i thr 4tli .'
liiriiary preceding, an agieeiiieiit iimler .<(■,.
ad lieeli executed lietweeii the |il;iilltilt iiini H,,
pl.iintilis sent no answer, luic siipp
lied t
I'j mnnis
'I'
The L'7.") had heeii jiaid hy S., and i
his letter em losing it In- said, " I send you \l~'t
'11 account ot ;;o(
ihi
iii:,dit liv nie heiiiL' one ha
if tl
le W
hole
Held, th.it 15. w.is entithii to
that tlie plaintill' slimild deliver trees at
stations, ;it the jiriecs mentiniu.,i, in muIi i|iiaii
aiiro'.i I"
tlie tni-.
- tities as H. might *»!!, h.r which II.
J. pay miodialf tv days .alter delivery nl
have the wlmje of this piyinent credited iig,
tl
le 11)1 seen 11
Ullst
il liyhi.i Iir.-t ;;U.iraiitee. and (hat
id to give his note endorsed lor the l.al
payalile in six or eight months from dell' iiy,
the notes of the
1"
ehasei>
II
the jilainti
fill's
ilil not
art of thedilit of S. fi
ippiopriate it to any
Inch I!. W.IS not liahle.
antee it appeared Miat tl
I an actinii ni:
If
lalalii'c ilcf
Liliii'iii 'I III. V. Mill' >: !•_» (,». I!
th
hy H. in all, for deliver
was .-<4li0. •_'•_', of which -SiO
part of the trai saelion, and nuU this iiart ii..
les „rter the giiaraiitiu.
was due (111 the lii^ii
A. .agrees to heeoiiie sio-ety to 15. for all smh licmi entered hy the plaintill in" his iha l»."li;
.tdv mees as 15. may make to ( '. during a liiiiiteil t,,i- the lest heliihl puiilia.sers' notes :" HiM
period. H. makes no individu.il advaiiees to that the guarantee elearlv eoiild apiily mily t"
<'. at all. Imt during the perioil M. with !».. a the .':?t>0. Li il,
stranger to A., make advances to C
- ; Heh..
that n. I'annot recover fnuii A. such advances.
Stirni^'iiii V. Ml Liiiii, 1 1 C. I'. L'OH.
(tne S. had contr.ut'd to Imihl a h ius,> for
lilt, and hid eiiip!oy< I tlie iil.iiiitill', iin-
.iiiiij 1 1 II
I.. •.': (.1. n. 4s:'
;<. .I;
.Mr. The
f.i fii. r
mas Mas
rsnii III iiiiiiiii iiivni
He
ir Sir. Ill .■'.:i''"
L'feiid,
to voiir favour of tlii-i date. I hegtnsay
[villi
K4H
iVtii'll <if tin: \V..|k.
;>t S. iliil lii>tii;iy
(Ui, ;iii(l\v;in iiiiwii-
mu iu'i:i'ti:iti.ii..tln-
"Stviitlnnl. UUt..:
, V. A. l.i.ltiMth.-
, ]i:iyal>li' ■■•>< s""ii;w
:(i llin tiiutr.k't ;it r.
11 Str;itf"ir.l. AU-x.
(irsLil liy iliffiiiliiiit
vitti'ii ii> I'lUuws:-
tiity-si\ \ii.miil> will
icfuf fiiulKic't, Un\r
is c(iin]ik't<.il mill ill-
riiis sum I suLiirctii
iin;^'iur. V. t . Lit.
hull l)fv-'l'. cMiiii.k-tfil
ivcil tint lii-ti.a- th.
lit hr.iltiilii tlupluiii
wuuM '»-' uiinWiralili
him, ami iK'li.iiiLii.".
■), ior wliiili A I'mil''
'I'lir lil>trimiaiil til-
ciill>iil<-'l'ati' u tli:itti,'
.■il\n.<t, \M>ul.l iiri...'
vimiiM;il to iiay limit;,'
Wfiv liirwnrUuiiil II. 1
;att.l:- lli-'W. tli.it ti.
■covlt till- C.")!!, luiti...;
;,V-MV./.", lf>l.l.ll.l'.i:..
h twii tinus in t^hiflnv,
fill' ailvaiii-i.-.-, t" !»■
tiiii\ii-i- within a ^l'^^l
wiii^h <k'U-iiil.uit '^ i.u;it-
his (..irt 111 tlu'i;<iiitr.id.
M.. a iKiitiii;!' ill 1.111' "i
tT.\M'iil'l luim.-litimlni-
u value t.i the iiiiv .no
I T. :- llil'l. I- 'l'''^"
• ■ciiulil i>ulv ivc.ivtr l'..'
ti. ■[■. I -J. 'niat M.
It was fiiui^iiifil. uiyt
ivcil l>v liiiii iniiu T.
10 < '.v. 111.
1, A|ivii. 1>">T. !.:>w™-
H.llt tl.tho lll.ll.ltlll. ii
;Kri.Ullt il.LllllllSt II. i"l
,, ,h.ll\iivltll H. tlKlt
,0 uia.le til tho I'laintill
^ within twi-my '^-■}'
),v H. tm til. -Itli .'!
iigivi-iii.-nt luiihT *f-l
,1, the j.laiiUitV..u.|H-.
acUvirtiv.>at'.iili".i'l
outii.iu-.l. i" ^>'^l' M'»»-
t..r which ll.agv.i-.lt..
.,.riMiviiyi'ltliftr.i--
„l,..-sc.l h.i- tlif hiil.i">^^'^-
„,„tli,. li-iiiii'iili'i'O'"'
iiM-i-s. lu ■•»" :>i'""",""
1041
UrAKANTEE AND IXDEMNITY
]iUi>
ICK
♦hat the 1>.^1'
,.ItlT
tho giiar.iiitw.
|>;iiO \va.-( .lu.' .'11
1 .iul>
nlilV ill
am
luU't 1...
hi.s ila> 1«'.''>,
:lia.-<il-s lii'tis
llvl'i
ul.l u|.|>l.v ""■!
./., •:;
4v:
lll•:^r^'ir•
r;iiv/i
y.uir
siuiiiu'
ivsimlisilili;
:^aliie ti)
agents ill New
1..1V wliitiviT Slim yiiii iiviy agree uidh tn p.-iy
I ; .ii, iiiiiiiihus, if yiiu slintiiil liinl mio tn suit
i-,,ii .s.i .SI Mill as the saino is lUliveieil tn ynil in
ilmiilt'i" ; anil this may he eiuisiiUTeil as a
uir.iiitee tn the \i.irty Irnin wliinii yon may
niuvhwe. I ivmaiii Villus wiv truly. (.Si'giie.l)
SMiUfi .\lills :" -Hehl, that" this," though ,i,l-
.!r..-isi'1 .mly tn T. -M., wniihl attaeli at niiee as a
iwr.'iiitee in favour of any i>.irty a\ Im might
"iriiisli the nmnihiis ; ami that im fuither lirnnf
I aa'clitaliee nr of eniisi.leratiiiii w.is reijuire.l.
'I/„'««;h;/ V. -l/W", l-t^ 15. .">1."..
I lel'iMlilailt iv.l.lrosseil tn I. V. it Co. the fnllnw-
II . 'inr.inteo : " ( Jeiitlemuii, —In eonsiik ration
,;"vnur liUing the .ir.lers f.ir gnmls fmm ^■""'•
|{,riiiiii!:li:llii liolisu nf ■). ('. it dt., say the
„i|i..rt:itious, 1 hereby lioM myself
,,r ami guarantee the p.-iynieiit nf tin
Villi." I. ^- &•'"• were the agents in .>ew
V..rk fiir the Hiniiingh:iin house referivil tn,
whi.iii the .lefeliilant knew, liut they lia.l no
„tlar enmiei-tinii with them, '{'lie giin;ls lia\ iiig
i.rli fiiniislieil to. I. ('. it Co. : -Helil. lliat the
Hmniiiu'li.iin linn eouhl sue minii tiie guarantee,
' iiitemleil for their lienetit, wliieh might l>u
i.ri.veii hy I'arnl evi.leliee. I'lU; Wart <( til. v.
;•,„■,««/./•, -J I ii». 15. :5-'<»-
(IneT. coiitraete.l with two tiriiis in (^Mieliee.
N. & Co. ami .M. it Co., for ailvaneus, to lie
oivert'il hy shiinuelits nf titiilier within a sjieeilieil
in'ri.Hl, ajieiing to furnish ilefeiiilant'sguar.intee
Mr in-rf.irinanee nf his jiarl nf the eniitraet.
iMiMiilaiit in a letter tn .\1., a i>aitiier in mie
,.l the linns, gnaranteo.l that T. woiil.l furnish
timlitT lU 1S,")!I. ei|Ual in val.ie to the ailvanees
niiiile hv hiiii, M., tn sai.l J'. : lUhl, that a
idint action hy -M- ami N. & i'". wnul.l imL lie.
'>;i„iii^t>ii'l 'il. V. Mr/. 1,111, IOC. I'. 414.
See lln'hrh- •■>
1., 1043.
at. V. 0'r„y,„..,', \\'\ <). I!. :i7'.',
In KiiMv
,hvt.'. IhegtoMV
1 villi
4. .!'< ^) (,'iiiit'iiiiiiiiirf.
Viluri' lUfeiiilant .-igroeil tn leml th.' iil.iiiitilf
i'ilKHI, t.i he a.lv.iiieeil as it might he renuij'eil.
aii'l receive. 1 fr.iiii iilaintitl'a ennveyaiiee nf land
t.i secure the ailvaiieos, ami gave hae'.i a Imiiil
rtiitnii: the agreement, an.l liimling himself tn
ftiiiiivey the lamls nn rejiav nieiit of the sum
ailvaiiecil, mi aeert.iin day, and ilefeiid.iiit helnre
tint ilay iiiaile further advanees tn flll.OIKl. and
naiveil tiiiiher, i';e., nn aeenmit tn tT.IHMI : —
Htlil, tliat the homl was a enntiiiuiiig security,
.W'ltliat ilefe .ilant was nnt ohli.'e.l t.i ree..iiv(_'y
•u pivuieiit .if the i'J.OOO first a.lvanee.l. !l < //■<
V. /,v;,;,,ii o. :>. i.s.
Tin iilaiiitill' sue.l ilefeii.lant on the fnllnwing
.•iariiiitce : " I lievehy hnld ni\sclf aeeountalile
i'Viiu fur aiiv g.io.ls Mr. !■'. M. miiy |iiirehasenf
yni til the amount nf t'".!.">0 ey : Hel.l, :■. ..m-
timiiui guarantee. Jfox" '. Il^nloii, -^ i). J5. ,'{."i7.
'■ Messrs. .-V. IV 1). Shaw . ( i-^iitl.nuii, 1 have
]■« receive.l a line fr.un I', inf.irming me that
iitwislk'Mii jiiirehase gon.ls fr.mi y.iu. I5eing
^Huaiiiteil with his eireumstan.'es, an.l know ing
Himt.i lie a man of iiru.lenee ami integrity, 1 dn
U'tlasitate to he resiinnsilile t.i you f.ir l'l.")0 .ir
Om Worth of goo.ls shnul.l he rci|uire that
M'laiit :"- Hel.l, n.it a, cintiiuiing guarantee.
^it^ur,i ,il, V. VmuhiMii, .') ii. 15. 'AW,\.
KtViulant anil annther addressed In iilain-
j tiff this mite : " In cnn.si.leration nf yniir .mhi-
jilying to M. sujijilie- of, Xe., nut of .vnur store
for his liiisiiiL'SS, we agree t.i hee.ini.' res|iiiii-ii(h'
for the iiayineiit of ."fJOO for sue': gno.ls, an.l
guar.iiitee the p 'vment nf that .■i:iii>nnt, whether
the same he ilue .in iinti' .irimok aeeoiint. t.i y.m
for sai.l hardware, inoi, iVe. :"- - Uel.l, a e.mtinu-
iiiLr :,'uaranti.'. Ilel.l. also, fnllnw ing Hia.lhiirv '•.
.M.irgan, 1 H. vt C. l.'4!l, that the .leath ..f ..ne nf
the unarantors .li.l n.>t extiiignisli tlu' -uarantee,
in the ali.seiieenf .'iny iintiee t.i |ilaintili' .m lulialf
of his estate, an.l the snrviv.ir ha\ ing aeknow-
le.li,'e.l his liahilitv, an.l jir.nni.ie.l t.i settle.
.'•'. ,M/r// V. .Mrdiiiiv. •2\ c. r. l;i4.
S. hy hotter inf.. niieil W. .iii.l K. that his sou
was a iiirtiier in a lirm, and thai he ha.l advaneed
him f,'f,(KMI as his sli ire of the eajiit.il thereof.
'I'lie linn having f.iih'd, made an assigiiiiu'iit in
wliieh .S. was piL' felled tn the am.innt .if l'l!,."i(')."i,
reiir.'Sinte.l as made u[i t)\ loans ami advanees
to the linn. 'I'he aetual ia|iital a.lvaiu'eil to tlio
Mill aplnare.l to lie only ill, (Kit): Meld, lint-
withst. 111. ling that S. was li.ininl t.> I!, an.l K. liy
his niir.sL'iitati.in, ami that sueh statement of S.
niier.iti-.l as a eontinuing guarantee tn theiii.
/.'"''/(','/ V. I)\rl.-K„ii, .S Ciiy. 4.")0.
."). Ul!„ r Ciixi.-i.
lleelaration nn the hillnwing gtiarantee :
" I'lease ere.lit A. I'lOO, an.l I agree tn iinhl
myself res|)oii.si!ih. for the iiaymi nt of the same,'
and averring that the iilaintill' .lid eredit A. : —
Hel.l, that the iil.iiiit ill' must jirove sueh aver-
ment ; an.l that ealliiig a elerk, wli.i state.l that
sueh ere.lit had heeii given, lieeause he saw it
eiitereil in the Jil.iintill s honks, wliieh were ti.it
jiio.luee.l, and wliieh entry had not Iweii made
liy him, was not sulheieiit. .Siinhle, that sueh
guarantee might refer to an existing a><-nnnt, or
to future eredit. and tlK'.t nn the evi.lenee it was
|iriili.'rly f.niml to ii|i|ilv to the f.iriiier. /'"/■/.■■ /•
V, huh'l,,,; •_' (>. S. 10(1.
.\ guarantee sh.ml.l lie e.instrne.l as all other
eoiilraets, n.it strietly as against either side, hut
hy e.illeeting tlii' real intenti.m nf the jiarties
fr.im the in.-.tniment and the surroun.ling eir-
eunistaiiees, taking the wnr.ls in their ordinary
sense, unless hy the knnwn usage nf tra.lc they
have ae.inire.l a peeuliar lueanini;. K'l-iiur v.
Winxln,,!,;!, •.»0C. 1'. 101.
Thero -vvcfe three exeeuti.ms in the slieritl's
liamls against. me \V., in two nf wliieh the iilaiii-
tills weie attoiiu'ys fnr the exeeiiti.m ere.lit. its,
and the .l.^feii.lant was .itt.irney f.ir .me II., wli.i
ha.l the .ither ixeentinii. \ sale ha.l li.'eii a.!-
vertise.l f.ir the 'J.'ith -lannary, an.l .m th.it .lay
the .lefindant signed an iiistrnnieiit nmler seal,
as follows: " I .agree with C. W. .\; C. (the
lilaintill'sl to ]iay ntf the iiriniiiial. interest ami
ensts, with sli. ritl's fees, in suits miming the
tw.t suits in wliieh iilaintitl's were attorneysi, in
eniisi.k'rati.iii nf their agreeini; tn postpniie the
sale advertise.l of def.n.lant s gno.ls fnr .me
week." C an.l the ilefemhint tlun vent t.i the
sheriU's.itliee, an.l instruete.l the iiersi.n in ehargo
tn iiostlione the sale, ami the h.iiliU' left with
.lefen.lant to i,'ii nut to the [il;ie in.i p.ist|i.ine it,
fnr which the .lefi'ii.l int was t.i pay the expenses.
When the liailitV got ther.' the s-de ha.l lieen
g.iing .m an h.iiir, hut it was stopped, and the
gnn.ls snhl were got lia.'k exeejit t. the aninuilt
<if s|."), whieh was iiaiil ' ' '■'■■♦ '■''■■
to .lefen.lant.
The
Kit.-.
(aJAltAXTKI': AND IN'DKMXITV.
ICli
jilaiiitiU'H tlicrcuiiiiii hiK'il the (U'fi'iiclant (ni lii«
gnaraiitfr : Muld, tliat they Wfle ciititltMl to
ri'i'ovi'r' till' ainoiiiit iiiiiiaiil in tliiir twu units ;
f(ir tlicy liail )icil'(iiinr(l tlu'ir nun'tnifiit, and
(k'fi'niliUit had j^'nt what hi,' Iiad liai';;ainc'il fur ;
mid thi' Jilaintiir.-' wi ii' tiic ])i(>ii(.'r (laitits tii .snu.
(iiillirii ii III. V. O'Cniiiinr, ;{(; (^». ^.. W,-!.
One M., i'f(|uii'in;,' niat'liimiv fur a chi'tse
fuctiiiy, uavi! till' jdaiiititl's, wlio nianiifartiiii d
isnch macldni'iy, an nider lor it in Mar<h, tn iie
Hliiii|iLd tip him 111! till' 1st May, at the ]ii'iiu <if
SMld, 'I'lio ]piailitillM icnuiiid siciiiity hulole
tilling the chiIlt, ami tlu' defendant wrote to
tlieni on till' li.'ith March, IST.") : '" I reeoniinend
^I. to yon, and if he should fail in his inoinise
to you foi- anythini; in your way, I eoiisider my-
self jointly lialile ioi' the anioiint of SI'IMI, )iay-
ahle in six iiionths to your linn." The halanee
was seeiired liy the guarantees of other ))eisons.
The muehineiy was shipjied to M., the last
Khi])nient heing on the ."ith May. and M. gave
his note payahle in six months from that day ■
six months' ereilit lieiiig the jilaintill's' usual
eolirse of dealing: Held, taking the guarantee
ill connection w ith the surroiimliii.' eir< umstaii-
ees, that it must he nfei'red to the sjiceihi- order
which M. hail given, and of wliii ii dcfemlant
must lie suiiposed to have heeii aware ; and that
defendants lialiility arose inimediately on M.'s
ilt'fanlt at the exiiiration of the six months"
credit. The defendant s eontciitioii was that the
guarantee limited the lieriod during v hieh de-
fendant should lie lialile to six months from it.,
date, and that a further time having heen given
he wa.s discharged; and at this trial tl": learned
judge ruled that it was a eon'.inning guarantee
for any goods to the exten' of !?'J(l(i, hut that
defendant wius not liahle niixil the expiration of
«ix months after M.'s default, .so that thisaeiion,
hmught on the '.)th llece.nlier, was iiieinatiii'e.
Ii<i;il> v. JlniiHiii, ('. I'., I". T.. KS7(i, not yet
rejiorted.
.Sue ,/,,//,■,'(/.>■ v. h't't/oii, > (,>. 11. ClV) 11. li;;!7.
V. I'l.MAIlINi: Asl) KVIDKM C. '
An action for goods hargained and sold can-
not be maintained ag.i'iist a iier.son who has he-
eonie resiioiiHilile f.ir the jiayment of goods
delivered to ;i tiiird iiartv. J/cR'in.li iful. v.
Mi'li,ini, 4(». S. V.M. ' '
I
An action for money jiaid will not lie against
a person who has engaged to indemnify another,
against the costs of an action limught against :
him for the amoinit of these costs, after they
had heen (laid liy the party indemnilied. 'J'he
action should he siieeial on the indeimiity. MU-
Icr v. Milinn, (i (). S. I(')(i.
Where in asKuniiisit on a iinunise to indemnify,
the defendant ]ileadeil that more than six years
had elapsed since the promise aeerned, the [ilea
was held had on general demurrer. //•'.>.■ v. !ri.<,
T. T. .S & 4 \'ict.
The plaiiitilV sued defendant on the following
guarantee ; " I lierehy hold myself aeuountahle
to you for any goods Mr. Francis .Muridiy may
imrehase of yon, to the amount of fJ.'iO cur-
rency." It was iiroveil that the plaintill's had
sold goods to M. on the l!lth Novenilier, IS-l."),
annmnting to t'.311, and that after the original
credit of six months on the fSIl, (uniler.-itooil
lietweeii the parties at the time of sali. a* tl ,■
jury found) had expired, the )ilaiiitrils l'i:i,i .j.
tended the time hy taking notes w itlnmt ij,.',., .
dant's privity. It was also jiroved tli.it iin'ti,,,
'.ind of A]iril, IS-Ki, other goods wen shM t,, \|
to the amount of fSM, for which M. at th.' tir^
gave his hill at three mmith.s. Di lendaiit \C?.
ded a defence which covered only tlie liist » '.
of t'.'Jl 1, to w liich the iilaiiitill's, hy tliiir i-,|,lj| ',.
tion simjily denying the truth I'.l his ili.t,,,,,,,'
admitted ids claim to he limited : Hiil, tli',t
though th. sum of t'H.S might have heen rirn'v,.n,|
under the continuing guarantee, yet that with.. I't
a iicM' assi^'iiiiieiit the jilaintill' ci.iild imt ivn,v,.
in this action. I'uki i-i hI, v. Ilniidi,, I n. j;. ."„■-
Where the plaintiH' eharged defendiut aMiii,,-
a guarantee to pay a eertai;, judenient. Hlii,i,|„
set out in siiecitie terms, anil alte; v,;iiils pinvt '
at the trial a guarantee extending lo all ilaiii,.
Held, nonsuit right. .V"//i<, •/,!/,, / ,/ „/ ^. o
Ciidi/f, :>{). 15. ,Sl(i.
.Semlile, howevei', that if the pliintilf l.a.h,.
out the guarantee as it was, and .•ivcrinl tli,
claim miller the judgment, he would liavc >-,-
tained his action. ///.
Where A., in consideration of l!. s ailvaiiijn
money to ('., guaranteed that M. 's ai'rc|itaiiri."
('."s drafis .diould he covered hy ieiisi','iiiii,ut,
of Hiiir, together with eonniiissinii ; aii<l in an
action r.gainst A. for nou-fiillilnit iit, lie iilturl!'.';
that liefore the maturity of the dratt.s, ulnoL
ainiiuiited in all to fl,."iO(l. the plaiiititf.< ili.l n.
eeivi; from P.., to cover tlw s.iuie, siiiidrv l:ii;'i
ijUantitics of flour, anionntiiig in tlie\vhiili.'t'ilii«i
liaiiel-, and did sell the same ior a lai-jjoi^uii,
namely, t.'l,()."i7 ."is. '.Id., and much ninri; than
suliicieiit to cover the s.iiil drafts .sn aualitci.
i*te., and the .said commission : -Held, jilia Laii,
in not avei-riiig directly that the plaihlilfi,
advances were covered, together with i.imi;;
sioii ; and also, in tendering an iuiiiia;
issue, in llIl^lding that llmir was reciivid n.
more than sutlicient to eovir, itc. /.. .i.'.
(7 ((/. V. Sli< i-in„,il, 7 (^1. It. WM),
• hie 1>. having reeovefed a iiidgiiiL'iit aj,'.mi>tl
.M. 0. Co., certain notes ii.iyahlu to tlieliriiMVinj
deposited with |{., and underneath a li^t ef tliiii:|
w.is the tollowing guarantee; " We lu'ivliy. ;
consideration of t'.'id hy us received nmii I
this day, guarantee the pnyiiieiit nf the iilim.
notes hy the respective makers at the ri'.>|u'Lti\t|
maturities thereof." This was siu'iiccl Ijv M. ,V '
Co., and nnderneath was an agiceimiit tlia:.
payment of the judgment within ten days. Il
notis should he returned to .\l. Ill an actiii i
against M. & Co., on this guarantee, avi-mii.
noii-p.iymLiit of one of the notes ; Ikil, tluitj
it was siiflicient to declare ou the ^.tiariiitii-Hiilv,
without nientioni'ig the agieciiici.t at tlic l'>"t ' :
it. I)ii;l \. MrLi.jJ ,1 ,il.\ IS (J. 1!. •Jjl'i.
The defendant pnrch.a.sed guods fnmi tlit'iilii:i-
tilts with instrucf ions to charge .■mil .*iiil tliiiaj
to one l''ox, which they did, and alter iwcivinJ
a portion of the purchase iiioiiey lir"Ui;lit tlii.4j
action ai'ainst the defendant, claiiiiiiii.' that li*
wa;s liahle as purch.iscr of the gmiil^. >i'Vi'r;il|
letters were put in evidence written hy tlK'l'liiiij
till' to Fox, in one of which was the fiillii«iii|
pasMiige ; " It i.s now .so long since ymu'"*''"""!
was line, that thi're is im other rcCHiir.-v Kitixl
ceiit to follow up Mr. Mel,, who is giiaMiitu
i; tillH' I'f Mile. a> tl;.'
In.' lilllilitilVs li;i.l ,\.
uiiti'S witlii'Mt 'li';,ir
d JH'nVnl tllllt (.11 tl|.-
<(iliils Wl'lr siilil til M.
wliirh M. Ht til.' tin;.
tlis. iKl'rlnlalit |.li-;i
ivil only till. liiM sil.
utill's, li_v tlii'ir ri'iili. ,,■
tr\Uli t.t h\> ilckiir..
. liuiitod : HiM, tli,;'
lit liavuliiTii m'nviTf.i
iiiitri', yot tli:it witli"',;:
lltitV i-i.llM lint ivi'i.v. ;
V. /;»,/'.//,» t^t. li. ::."
irgcilitt'fi'iiiliuitasiiii..;
;iiu jiiil;:iiu.iit. wliii'iilii
aiul iilti-rv, mils i.vnvi '.
ixti'iuliny til :ill (•laii..
,ill„ rliiii'l 1 1 "I- V. j;
; if tliu \i!;iiiitill' '..;i.l *. •.
t \>;is, aii'l iivi'irwl tli(
lit, 111' wi'uM liiivc >■■,-
ration of 1'.!* ailvniu'iii;
1 that H.'safv-qit^iiM ..;
L-llVl.Vcll liV ii.llsi;;llllUlit-
i-(ininus:;ii.ii ; aiiil in :i:i
im-li\Hilui> lit, 111' iiluniW'i
■ity lit till' ilrait.s, wlii.i
■lOit, IIk' iilaiiititV.Mli.liv
• till' saiiK', i-mnlry lir:..
nntin.i: in t!R'\vli"l>-'t" '■"■«'
:li,. saiiu' lui' a lar;:(; sun,
li., ami ninoli in»i'>.' ilim
saiil ilnitts sii aa'qiti-.i.
,iis.-ion : - IK^lil, pkaLuii.
tlv tliat till' iil'.iuilitl U. >
,i; tuiii'tlK r "itli o'iHi"i>
u'lMiM'iii.ii :"' inmw-""'''
111 nil' wasi rci'i'ivi'il lu'iiil.
IIAIJKAS CORPIuS.
li
•.»!.
/.. M'
a jiiil-mi'lit :i:...iii>
all!;' tiitlii'tii'iii^ii''
s pay
uinU'nii'atli a
irantoi.'
ihV us 1'1'1,'L'ivi
li.^i'ithi'm
\Vi' lioi'il'V. Ill 1
ii'iiiii
avint'ii
t (if tlic iil"|^
ilui's at tli« ri'.-in'im
1 liv M. .1
■ I'
ll'liis was Mu'iii''
an njii'i'i
■A.
ion I w
I'licil
lit tin
ithiii ti'ii 'liiy-
t(l M. Ill llUill'lMlj
s i^uai'.iuti'i', iivi-miigj
Ik'lil, tliii'l
iiuly,
till' i<«.t "1
tliis
l.i' iliL' nutt's ;
llaR'.inlhi'K."'"''""''''
ajiii'iini'i
t at
\i;i)(iilslnimtlii'r
liasi'i
ltd I'liivi'i;*'
111
.11(1
lliasi' iiiiini'V
il'IKl
liter Vi'i'
tlii'iiil
nil
Ifi'lidiint,
,11' (if lli(-' ,i-"'
laiiiiiii;
,,ls.
,jlit tiiiij
tiwtlii
Sovirall
lU'iii'i' w
rittiii iiV
tlii'l'l
tliu f<illii«i"i
^liii'li was
1(111^' since y'lff:
Ml
ahi'v ri'i'""''
vlii) is,
kit ixj
iwraiit.'i'-
IGIG
(;r.\i;iiiAX.
(t| Im'AM'S -.Vi( Im'ANI.
Or I.L'NAI'KS —.'«■. • LlNATII.
11110 iiriniicl' fl'nin iiiol'oii.iiits in \!(;i,tn.'ai, I
jii.liii siiiiio iiistaiH'c" jiaid, and in ntiiors given I
hijiiwii iidtos fur tlu'iii. 'I'lio jury liaviiig fdiiiid
fur till' iilaintills, and that tiio oi'odit was (iri^i^i-
uJlv L'ivi'ii t(i tlio di'foiid.'int, tlio oinirt rofiisud ,
tiilistiu'litlio vcnliot. Oii'drir d nl, v. MiLm'l, '
llfJ". m j
Ii, nil aotidii for goods sold, Hi. Id, iiiidor the ]
simiil f.ii'ts set out ill tlu' case, that thorc was i
,,„ eviiliiii'i' of original liahility on tlio jiart of
ilfivniliiiit, hilt that the only li.diility was from
l,is iiriiiuisi' to piiy jilaintill' the aiiionnt, and this
\kWJ. vtrlial, was void uiuKt the Stiittito of
CriiiiIs. til \\h(i'n the goods were .sold, ^l( riiir
.. \i.:,. it ('. 1'. '"ST.
Ill
IV,
\
i;\rUA-
d' 'nlildll in. II ui: Mi'ui'i iiiii'** I in- ^^.^^ll a.-^,-^ijL;ii
mint til lit' I'lit on n'oord, the dofoiKhuits jiro-
aiiji'd that the arraiigcniont made witii .\. for
I till. iiiiviiu.iit of ♦lie said Ipal.'iiiee should lie duly
I carrit'ii (lilt, (ithervii.se dofoiidaiits would pay the
I Itlailititf i\'.\'K tll.it heillL; til • sum to he soouied.
I Till- liri'iiL'h was, that defendants would not eairy
I lint t!i(' said ari'aui'onient, nor Mociire to the
ItlaUltUI ll.l.'. lu.il; iioiiij; 111 • niiiii III III
Till- liri'iiL'h was, that defendants would _,
1 lint t!i(' said arrauironient, nor Mociire to the
liliiUitili tlio I'Ki"). Uefelidiilit N. lileadod lioii-
tsmiipMt. The guarantee, when luiidiieed,
sWiVtii that dofiiid.i lit.- liad not agreed alisoliitoly
t.. .11.. nn. til,. Iil.'liill ill'. .'IS allf.rt'd. llllt. tit ll.-IV tlio
ItH'Wl'd lliaiUOl OIK (.1111.- 11.11 I I Mil 11^ I I III ill'^CKIlOI^
Idsniiic iho |ilaintill', as alleged, lint to |iay the
■|;iul N. (lid not do so ; -dold, th.it verlial ovi-
I dtiiii' (if an agi'oeinent to the (.Hoot di.ol.irod
, Sir Piid:r v. Diirhn; •-'(». S. KM;, p. Kid'J
\lr.:„<\. llnhhiMjii, UH}. n. I(l!l, p. in:i;f.
\1, .MiSCI'.l.l.AMlDl'S ( 'aSI'.S.
Wl.i-na party hinds liiniself in an agreement
U.|i;iy tiio (ilaiiitiir C2'> if .\. I!, does not fulfil
I «iitlii I'livonaiits and eonditioiis of the agree-
1 Wit. iho Cl'> must he looked on ;i.s a penalty,
Ijiiilii.it iis linuid.'itod damages gi'-iiii: the plaia-
Itd ;iii ;i..'tiiiii as for an ahsolute delit. Mil.iiiii
|v.'/'.i..,'..v, 7t,>. r.. 4(1.
.'\. i;iwr,iiitfod to H. la ereditor of ('.) certain
leonilKisiiidu mites, wiiieh li. wa.s to endorse for
jthtiitliii' d'oditors of ('. I! represented to one
I it Un lie (if tlio oreditors, liefore the oompositon
|n-;i.'r...il t(i, that he ll'..) wa.s to ae.;e|it il like
|t(iinii.i>itiiiii liiiusolf, hilt he had a seeret liargaiii
JTOii ( . that ho should he paid in full : Hehl,
|Mgr(iiiii(l»(if jiuhlio polioy, that this .seeret har-
I piu vitiated the whole tran«aetion, and that .\.
1 »« iKit liahk to R on liis guarantee. Clnfb v.
I too,. 11 e'liy. 4<n).
ir.M'.K.XS ('(»|;IM S.
l-sri; oh'.
I. ir/(',i. ■iniiit.il. I (ill!.
'2. Willi 111111/ iirmii, 1(147.
3. /'nii-liir, It;i7.
Itr.iriiS I'd, liU.S.
l>i-( iiAi.(ir. or l'i:i>i(Si:i;, ItU'.i.
Misi KLi.Axr.oi s Casks, H'ol'.i.
In ('\sf.s ok KxrHAiurios Sn
IlllldS.
1. Is-ri; (ii Willi'.
I. 117(1 II i/i-im': 'I.
It is not illegal to issue a writ of liah'jas eoipiis
to hring lip a delitor in eustody on an attaoli-
ineiii, 1." the noii-jiay nieiit of eosts, and the
.shorili eaiinot therefore jil.-.tify an esoape from
the attaohnient on the gioiind that the dolitov
was hidught iqi \>y h.ilnis oorpus hy tlie jilaiu-
till', and that it would ha\o' lieon illegal for the
sherill' afterwards to detain him, and so he was
permitti'd to leave his ellstoily. (irnliniii v.
Kiihj-^iii'ill, li (». S. ."),S4.
A halloas oorpus will not lie gr ..iited to lii'ing
lip a prisoner uiidor soiitoiioe at the .^i'-.--ions for
lareeny. Hn/ui'i v. Cni'i'ii , II <^>. I!. 447.
A w rit of halie.as corpus ad testilieaiithiiii may
lie issued to the warden of the penitentiary to
irin.g up a eoiiviet for life, to give tetetinioiiy
on liehalf of the ei'owii in a ease of murdei.
1,'i'jiiiii V. Tiiii-iii" nil, ;t L. d. IS4. I'. \j. Cluuilh.
Itlll'US.
'riioiigh .'111 oHoiidor for who.so arrest a magis-
trate's warrant is is.^iied he in a diliorent county,
and a prisoner for deht in close custody, he may
lie removed under writs of halieas and reeiiiias.
h'liliiii' v. I'hiiiiis. 4 1,. .1. lt;o. C. I.. Chanili.
Hagarty.
Where it a]ipeartil that the prisoner was in
eustody under a writ of e.ipias, issued out of the
County Court, regular on it faee, luit w liieli, it
was eonteiided, had lieeii inijiidporly issued, a
judge in ('haniliors lefnsed to iliseh.irgo the
prisoner. /// /( A'//;/' /•, IOL.J.;j;i'.l. C. L.t'haml).
.1. U'iLson, Hagarty.
When a odiinty .judge Iiaa jurisdiotiiM in the
premises a .'^iiperioi' Court judge will not in gen-
eral (if at all) exoioise a power of apiioal Ity
halloas oorjiiis, whioli was never intemU'd as a
means df appealing from the discretion of a
coiintv judge. Itiiiiiiiiiini v. Ann^trntiij, '_' L. J.
N.S. Iti"). ('. I„ Chainl). -A. Wilson.'
Semlile, that a prisoner is not untitled to a
writ of h.ilieas corpus under the statute of
Charles unless there he "a roipiest made in
, writing l>y him or any one on his hehalf, attes-
n
1G47
HAItKAS CORPUS.
K\i
ti'il liy t\M> w itntsMcs wIiowitc iircsiMit at tlii'
• lilivcry <if till! Hiuiii'. " /n /•< ('(iriiitr/idi I, I L. .1,
-\. S. 'in. V. L. Chaiiil.. ,(. Wilson.
Tliu j)r<)i)i;r itrocemliiiji; tii revnrKU n juilgint'iit
ami ht'iitt'iict; 111 tlio Cinut <if (,iiiiii-tt'r Se.sHioiis in
liy writ lit' cri'iir, nut liy ciitinrari anci liiliuaH
Ci"il|Mls. /,'.;/(•;(</ V. /',,in/l, L'l (,». |',. •_>!,-..
I!(;niark.s aM t(i tliu incnnvonicuci.', if nut danger,
<if iiiakiiig till' writ nf lialnus i'cir|nis a nuMi'
ini;tli(iil ill' apjiraling frniii cptliir trilmnals on
jidints mure nl' iirai'ticc than all'ci-ting thu merits.
/« /•' .!/»///(, -J.-. (^>. I!. 124.
Tlu" •_'!! it .'iO Vict. f. 4.") hail in view ami remg-
nizcH the right of every man cinnniitteil nn a
criminal charge to have tiie (i|iiniiin nf a jii'lge
111' a Sn|icriiir ( 'iinrt lipon the cansc nl' liin euni-
mitnient hv an inlerior iurisilictiim. /'"tiim v
J/cWi/-, 4 i". 1!. (i4. -C. L. ('harnl..--.I. Wilsmi.
A lU'imty jiiilgc of ii County ('ui'.rt ilecliiieil,
on the grniinil that lie was tlie iiartncr of the
iilaintill'.^' attnrney, tn entertain ;in aii|ilicaticin
liy till! ilelenilant for a suiielseiliaH lieeaiisc he ■
liail not lieeii cli.irgeil in cxeention \;itliiii the i
term next after jnilgnii'iit : llchl. tiiat the ile-
femlant was entitleil to lie ilisehaigeil from ens- ,
toilv ilinier ;i writ of lialieas enrims. /i'< (</ i/ nl, '•
V. 'hnib, 4 I'. I!. 141. (', L. Chamli. -A.
Wilson.
A iirisoner having lieeii sent to tln' ]ieniteii- ;
tiary mion a jinlgnient wliieii was afteiwanls
reverseil. as having lieeii iiroiiouiKeil ii|iiiii two
eonnts, one of wiiicli was ilefective, a halieas
ciirpns was onlereil to liring him \\\t to receive
tile jiroiiei' jnilginent. Cunin-all v. /''i/init, 33
(,». 15. 10(i. ■ I
'2. MV/o 111111/ ijrini/.
.\s til the ri;.;ht of a jmlge sitting in Clianilicrs
in rii]icr ( 'aiKula to nnlcr the issue of a writ of
halic.is CI ipiis, where the cnstmly is not for crini
inal or sii|i|iiiseil criminal matter; the lm|ierial
Statute .")(! (ieo. III. c. I(M>, not licing in force in
this colony, /n n //mrLiiix, '.) I,. .1, liilS, ilnnliteil. i
/n ,•'■ lihju'i; 1(» L. .1. ;(•-'!».- (". L. Chamli. J.
Wilson, llagarty.
.•V jnilgc in Practice Court cannot grant a rule ,
nisi for a halic;is eor|ius ail siilijieieinluni. liajimt
V. Si„ill,, •1\ g. K 4S(). ' '
Hclil, that at cninnion law the jtnlges of the '
sn]>erior courts of Coinmnn l.a« can nnlcr «rits i
of halieas corims ail snlijicieiiilnin in vacation, |
retnrualile either in term or vacatini. Ili llthr-
/.■illy, H I', it. •_':<!». I'. L. Chamt).- A. Wilson.
A jnilge in Clianiliers, nniler v.nlers of 18.'),%
may grant a writ of hal)ea.s enriuis. I!' I'nlun,
4('liy. 147.
" i
.3. Pnirlici: i
The aliiilavit ujinii which an onler for a Inlieas
eiirims is nniveil, slinuhl he entitleil in one of the |
.snjieiior courts. As a general rule it shonlil lie i
luii/lc hy the [irisoner himself, or some reiusoii,
Kueli as eiierciiiii, iS:c., shewn for his not making
it. It is iliscretiiinary with the jnilge to receive
an aliiil.ivit of a ililiereiit kiinl. //( re Rush, 3 P.
R. 301. -C. L. Chaml). -J. Wilson. !
Quarc, can a judge in Chambers re. .ind his '
order for a halieas eoriins, oriiuash the writ itself,
on_tlie ground that it issued impruviileiitly. Hi.
(Jinei'e, has he iiiiwer to call iiiinn il,,. ..^
tor or magistrate to shew cuise h|i\ ,,1 i „ '
eor|ins shonlil nut issue, instead ni at nini. ,,r,| "
iiig thu writ. ///. '■'^'
iiig
II. llKTrits To.
It is sudlcient to return to a «rit nf l,.,!,.
coriuis a copy of the warrant miih r Mhi,!, 't|"
prisoner is detained, juid mit tln' nii .j||,| J'
n /{„ss, 3 I'. I!.;i(ll. C. 1, Ch;ui,l.. .1. Wii.,,,"
Held, that the jicrson to wl i ,i h.il,™ ,,„.
pus is dinctcd, conimaiiiling him fu iituiii "tji,
cause of taking and detainer," niii^t ntiim the
original, and not merely a copy of tlir H;irniit
In re l!iis.s, 3 I'. I!. ;!(ll, to theeinitniiy, ,l„iil,t,.,|'
/ii rr<'ni-iiiii-liii>l, U) I,. .1. ;t'J.-).- ('. I,'. (I,;,,,,!, ;
l)raper.
«,>na'rc, I. .As to (he ]inwer of a jinl,',' .vittni- ,
in Chamhers, on .■m ap|ilicatinu ui a |in"„i„r|„f ]
his disch.irge nil ;i liail warrant, to nni:iii,| hi,,,
and in aid of the prosecution to nnl.r the jmubI
of a certiorari to liring up flic ili|iii>itinii^, ;;,. .
'2. .As to power of a cnurt or iMil^'c uiiiin'r™l!l
iiig the deposition.s, toaniciid a had Warrant i.i'i I
coroner, or issue a new one for the imriuwe „t|
detaining a jirisoner in eustody. //,.
The prisoner was eoiiviitcd hy tlic in.li.i
mayistrate for the city of Tornntd,' lurtliat m\
"did on," >tc., "at the said rity ut Tnrniu,, I
keep a eomnioii disnrdcrly liawdy Imu:*! nn (in,.,.,',!
street, ill the said city," and cniiiiiiittcl t.! -njl
at hard lalmur for six months. .\ lialniis i„r|,in|
and certiorari issued ; in return t.i Mliiih tlitl
coinmittmciit, cniiviction, iiifiiiiii.itinn, anil.lciH
sitioiis were lirounht up. On ;ipplic'aliiin inr licr
dischiirge : Held, no nlijcctimi tli:it tluiv «a
no evidence to warrant the cniiviitinii Inrwlifi
a iirniier cominitmcnt is retiiineil tn a liaU'.n
coriius, .•mil there was evideiire, tlir ruurtwijL
never enter into the ipiestimi whetliii tli.' iii,i:'ijj
tr.itc has drawn the right eoiiehi.-inn I'lnm it,|
SiMiilile, that on such an nppli.itinii alljilavitt
cannot he received to snstiiii nhiei tiiiis fu till
conduct of a m.agistrate in ile.iliii^' «i|li thf a
liefiire him ; hut that such cnudiict inav I'uniisli
ground for a criminal inforui.'itimi. f.iii.iiv. Mitk
reg.-ird to some nf the iilijectinlis, wlii'tlltr till
coiirt, on such an application, can lih luliiiiil till
warrant of commitment. Iti'i'ni'i v. M'i«i-",-A
(.}. Ii. 44.
The mere fact of the w .rraut nf ininmitnui
having heeii countersigned, iimlir 31 Vict. v. 1^
I)., l>y the clerk of the I'livy Cninnil, ilms mi|{
withdraw the case from the jiirisdiitinn nf
judge on a halieas corpus. The iniiiiiir iiiajj
contradict the return to the writ liv sIk-mmii
that one of the jiersons who sigiuil tln' wiirr;.,
was not a legallv ipialilied justice nf flu- |ir,ifd
/t'ri/hiii v. /;..///'', 4 I', i;. ■_'.■•(;. C l,. Cliamli.
Morrison.
A habeas corjuis directed to a ganliT H;b .sell
to the clerk of the crown, w itli a lefiiin stiitini
that he held the jMisniiers iiinlir a warrant ^
committal annexed, but was iiiialile In iirnilufl
them for want of mciiis to pay Inr tlnir rmivej
anee. This return haviiiy hccii iiiicluil liy th
clerk, "lietnrned and liled, ' a jii kv alLml
these prt'.iers to be witlnlrawii I'nr the |iiir|"i.<i'(
having another return iiiailc The |iii.<iiiii!l
were afterwards ^irudueed with the writ, tuwhiol
lall \i\n,\\ till' |ir'isi.,n.
wtcuil'ii al Mini' iirtler-
UN Til.
1 til ii wiit I if liaU'M
.rraiil iiiiiUr wliiih dm
I lint till' iili-ill;il. In
I. Cliiuiili. .1. \Vil».,|i.
til wlimii a lialiiMs nif.
liii;,' liiiii to I'l'tiini "tk
aiiifi'," iini''t rituni tho
,• 11 niiiy 111 till' Wiiirant,
til tliiM'initrarv, iliiiilitnl.
.). If.'.-..- f. I.'.(1l;ilul..-
IMiwci' 111 a juil,'!' sitting I
ilii'atinn nl a iiri^umr li.rl
wan'iiiit, til rciiKmil liiiii,
I'fdtiiin til iinl'i- tlic )*m\
iqi rlu' ilcViiMtiiiiii<, iii:.;\
lurt ill' jiiilui'. uiiiiii rf:iil-
ainciiil a liail warniit "iai
W niic fur the liurimsf if j
Clistmly. I".
ciiiivirtcit 'ly tlio )K.|ioe
/ (if 'rnl'illltn, fur tllllt >lie
thu saiil lity nl TiimMm,
•rly liawily liuasc'ini.iiui'tt
V," ami riiiiiiiiUtc'l tM .'i"l
'iniiuths. A lialuas iMijiiui
; ill ri'tuni t'l wliii'li tlitl
,i(iii, iiifiiruritiiiii. aiiiMi|»»'
l]!. On aiijiliiMlii'ii 1"V
1 .iliicctimi tli:i.t tlnav «;»■
it tlici'iiiivii'tii'ii fi'r»!:-l|
t is rctunn-'il t" a lu'irml
S L'Vilk'Ili'l', till' Cnlllt Willi
lU'stiim whrtlici til'' iii.r:u-r
i'ij;tit i-oni-liiMi'ii ii"i"it.|
1 an iiiiiilii'iti'iii alli'bvia
n sustain iilijoiti'iii* t" t'H^
ti' in a.'aliii;; with tin
sii.'li I'liuihu't may I'lmiisi
infiiniiatiiiii. '.iii.' T''. «itlj
I,, (ilijcrtinns, wlictlui- m
.ii'iitiiin. can .i^n luliiu'l tl*"
'lit. /.'•:/'"" V. .1'"
iw w .n-aiit I'f n.iniiiitnu'n
y^Mi'il, nnilri- ;?1 Viit. c. l(i
I'u' I'rivy Ciiuiu-il, '''"'* ""•
|i-,,ni tin- inris'lli'ti'iii i.f
„,.,„s. -nu' iiriMiui'nwJ)
to till- writ I'V s1k'*'wJ
,,s wliii siL'iK'il tlirw:irr;i
ilii'.l jiistii'i' lit till' !*;>«
\\ •'.'ii;. <'. !■■ ''I''""''- '
liU9
JlAItlM^rU COM PA NIKS.
Ifi.^O
.|ij, l„rogiiini; ruturii wns iiiiiu-ximI, lunl aiKithurj
.^l„i,. tliat tlio )ii-isiini'rs wi'iT lu'lil nnilcr tlif
tarraiit alnaily n]iiikt'n of ami a snlisfinii'Mt
rirniiit. I'.v wliirli an alU'^jml lU'fi'it in tin' tirHt
fuiiitt'inli'il to 1h: I'lirnl : llclil, 1. That the
jptrt'turiiwaH in fai't no return, nnnly alh'^ring
jiittirsiif c.M.'iiMu fur not niakinu a rrtiirn ; 'J,
Tint a rctirn cannot 111,' tili'il until it ha« ln'cn
^,1,1 kfiit' till' jml>,'u ; ami that thf Hi'i'oml
jjinnm'ii., iiutliiiri/i'il. /'fjiiin v. Hi nu it nl,, 4
|i i; 'j*)!.— C. Ji. Chunili. hrajiui'.
lit. Pisrll.Mici; oK I'liisiiNT.l;.
Jlit I'liiirt rt'fiisi'ii to ilisi'liarL,'!' a jirisoiiiT out
l„(riistiiily. "I' 'li'^' j^'Viiiiml that till' L'aoh'r hail
I „]^,,ii liiiii to a iiiaijiMtrati' n|iofi siis|iii'ion of his
|jjviii;;i'iimiiiitf''il a larceny in gaol. Hnliiiiiini
|v,//ii". 'I'liy' ^^-■
aHiilt' those writs or sns|u'nil iiroeoeilint's ii|iiiii
thi'ni. I'lii'iiiii v. M'"/ilurk I f iiK: In ri MinunrH
V, a<irh; I 1^. U. .•I-".'.
I'.'ctc.l t.ia-aiilcrwa^s'-'nl
,\vn, with II ri'tiira *'■>""(
L,ucrs iniili'V •»"•"'■■ , ,
lut was uiialiU' tu vr-N
lnstoi.ayfiirtlii'ii-;:"i>veJ
lavin- '"■^■'"."^';'^"' r'.?
1,1 lilc.l," a ni'li;'' •>""«•
Ihili-awn fur tla' |'»iV"*^'
L n.a.lc. Th-' 1"'*"", .
Ice.l with the wilt, 111 wl'ia
l./i'"i -'V'
Tliu I'liiirt ri'fiiscil to eoniniit a iirismu r limught
Ij^yifits ciir|ius from a conuty goal to the cus-
|V.l\iil the slicrill'of York. //<.
fflicTC ft I'l'rsiin is rcstraineil of liliirty iiiulci'
I, statute, lit' slimilil Ik; ilischargcil, unless the
aK' ii* satistieil liy nneiiuivocal wonls in the
(Utiiti'tliat the iiniirisonnient is wananteil. //i
Lv„(,,',i/i./ W<IU, !• I-. .1. •-'!. «'. I-. Chanili.
I-Hagarty.
I HfM, that whore a jirisoner is uiuKt a w rit of
|bW;U!i'iiriiii-^ 'li'^cliaryeil from close custody on
Ithe .'nmiiil that the warrant of coimnitment
liiim's no iiHeiice, he is not, iimler .sec. Ci of .'{!
ICjT". II. e. -, eiititli'il to his ilisihargeas aijainst
|ii!il#n|Ueiit warrant correctly .•^tatiiiL,' the of-
■tece, upiiii the alleiteil griiuml that the seeonil
l»fnr"tlie same olleiice'' as the first arrest. /«
|fii„,'„„V/„i,/, I L. ,J. N. S. •_'-»;<. -f. L. L'hanil..
-.I.W'ilsiiii.
HiU. that ill favour of lilicrty. it is the iluty
«ajiiil;;e mi .'i halicas coi'iuis, when iliiiilitiu','
t siiitiiieiiey of a w.'irrant of conimitiiient, to
(cbriietlie iirisiiner. /» r< ll'ili,,\\ I', l;. -.'yo.
CLt'liamh. — Hajjarty.
I Pjt jmlnes iif the Sujierior Courts are lionml,
plrtiii ini.siiiier is lirou^'ht Kefore them umler
StliiiVict. c. 4.">, to examine, the ]irocee( lings
leviili'iK'e ant'riiir to the warrant of eommit-
iot, aii'l til iliseliarge him if there does not
(<.ir siilliiieiit cause for Jiis detention, 'riie
H'ldki' 111 this ea.se warranted the magistrate
ki*l«iriiigliail. Itnjiiiit v. Mn.^iir, 4 I'. U. (J4.
k i' • liaiiili. -A. Wilson.
IV. MiSI Kl.l.ANr.ulS (ASKS.
[rieoiiirt ik'terniineil it not nnrea-niialile for
(.■aiiler tu charge kIx jieiice [icr mile Imth
«ii|; mill returning with a |irisoner liy liabeiw
as. /I'l./iiH.i.iH V. //((//, 'I'ay. 4J''J.
|.\viriiid Willi taken in a cause at nisi jiriiis
l^eit t(i , a reference, and the rule of reference
ijiurwanls made a rule of court, and eim-
I'lii' iimial clause Jigai)ist filing any liil\ in
pill; ami the defendant, against whom the
KilwM iiiaile, did not make any motion in
Kimrt m iii'ii]ier time, Imt tiled" his liill
ii.vr.K.NhrM.
Sir DkKIi.
The testator, wlio died in 1S"J!), devised utt
follows: "To my son, •!. !'., I yive and devino
all that my real estate situate, lying and lieiux
lot No. ."i, in the Itli concession of N'armoiith, in
the London hlstrnt. containing '.'(Kl acres, Ik)
the same more or less," and also I give and Ik--
i|iieath to my said son ,1. all that my n/al estatu
situate, lying and luiiig lot .No. (1. in the (tli
concession of \'ariiiiiuth. in the London liistriet,
coiit.'iining 'JtMl .icies, he tile .-aine more or lesH,
to hiilil unto him, the s.iid .1. I'., his heirs ami
assigns for ever :" Held, th.'it .F. I', took a fee ill
lot ti\ e, the haliendiim ,'i|i|ilying to that lot as well
as to lot si.\. /'/lil'iii V. ('irnlnii,,, •_••_• (J. li. ;IS0.
llAllKKi: I''A«'1AS I'd.ssK.ssloNK.M.
Sti K.IKiTMKN r.
n.\Mll,TnN, (CITY oK.)
This city is a )iortiin l..ikc Untaiio. '/.o/'///- v.
<.7,(.vs 14 tj. li. ."ill.
IIAMII.rnN, (T(t\VNs|||l' oF.i
The ]ilaiiitilV owned lot "is and defendant lot
•_'", in the ;{ril concessinii of Hamilton, lietweeli
which there was no I'oad allowarne, and the
]il,iiiitill'. iirevimis to the siir\ey of that coiieeH-
siiiii made under I'il \iit. c. 7-. h.id occuiiied tho
land in iiiiestion for more than twenty yeam.
liy this survey it lieloiiged to lot "JT : Helil,
Morrison, .1., diss., that the etl'ect of sin'h sur-
vey was to lix conclusively the division lim- hc-
twccn the lots; hut. Held, also, tli.it the (ilain-
titl's title liv jiossessioii was not taken away hy
it, Tiii//iii'\. Ci-i'/t. ;t(M,i. I!. "iW.
HANI>\VI!ll'INt;.
,V(< KvillKM'K.
HAi;i<()rK (•(•Ml'ANIK.S.
I. I.I Mill.l |■^ I'ol: (Mis-l'Ki riinss,
!l. .Misi i:i.i.am;oi s t'AsK.H, KJ.'ill.
KI.-iO.
I. l.iAiin.irv vow Oiisini I ritiss.
Defendants, ineor^xirated under ( '. ■'*>. C
,. . . , . . W,
ity, fur which the court granted attachments construclid two jiiers running mit into lake Kriu,
Mliiiii iiiiil his solicitor, ii|ion w hiih writs .'ind had forsome time coliected tolls iiiioii \esselH,
Wieiis (.'iiqiiiH were suhseiiiieiitly issued, though it was s.'iid that tin- harliour was not
P". ■'« refused til entertain a niouou to set . linished, and that it Wiw intended to carry tho
ltl4
1651
IIAI{|;nrit (OM PAN IKS.
M:,2
m
\i
liifr» further "lit. Tin: |iIaiiitiir'M vcsml, ImimihI
for luintlit r port, iiut with an aicidciit, inid li.iv-
iu^ iittrtii|>ttil ill iiiii!(c(|iicii(c t(p t'litir this h.ii-
liciiir, was wi'i'i'ki'cl ii|i(iii a Maiiil -har almiit -IN)
feet iiiitsiih' cif the |iior», ami thr ciU'^o wan hmt.
It a|i|M aii'il that this saml-har wan ot a »hittiii),'
iiatiii'i', ili-'a|>|ii'ariiij^ ainl I'ciriiiiiiL; at ilillcriiit
tiliu's, hut ill iiii(laiit.'<, Miuiic wi'cks licfurc the ac-
ciilriit, hail hr;,'iiii til ri'iimvi' it, anil hail nut ;;i>ii('
<ill with the Willi;. Till' jlli V liavili;,' lnilinl that
the lipsM \\:'.!< laiisiil hy lUl'cml.iiit'.H ii(yli;.,'tnri' :
llclil, that ih'ti mhiiilN wiii' liahlc, ami a
vitrilut fur the valiu; uf iilaintill'.s caiL'ii was up-
Jii'l.l. Mil,iaii, .1.. iliss. 11/ V. V. /'ikV ///•/«•-
JIaHiiiiif Cii., lil t^t. II. dl,") ; iilliriucil "11 appeal,
MM^, l(, )i-j:i, anil,
I'll' I'rapir, ( '. .1. My hf^inniuj,' to rfcuivc
t"llN, till' I'liiiipany must he taken t" as.sert that
their liarhdiir is cipahle of iii'ei\ iiij; ami .shelter-
in;,' ves.sels iif such si/e as it is litteil fur. 'I'hi.-i
iiiehiih's the a]>pi'"aeli tii the harhiiiir ; ami if
afteiM arils an iih.struetiim remlers it within their
kli"« leil;,'e unsafe t" attempt an eiitranee, they
are hiiuiiil t itlier ti> reimivt^ the iilmtiuetiiin, nr
to <■lo.^e the harliiiiir, hy giving imtiee tn the
liuhlie lli.it it ealiniit he safely appmaeheil.
llag.uty, .1., th"U;;ht till) weight "f eviileliee
Htmngly against the iilaintill', hut eoneurreil in
tile juilgiiieiit, liiililiiig that t" he im gnuiml "f
a|ipeal. Me ("iisiihieil, luiwcver, that tin- ver-
ilii'l e"ulil lie sust.'iini'il imly n|iiin tli.it |><'irt of
the e\ iihiiei' wliirli teliileil to shew that ilefell-
(l.int;^ hail iiiiih rtakeii to remove the har in i|Ues-
tion ; ami that if it were a known natural
olistruetiiiii, outsiilv of their li.irhour, wliiili they
hail never innfes^eil to interfere with, tin ii they
Woiilil not he liahle. S. < '. in ajuieal, l!l(^». I >. (>•_*,'!.
jliiii.'irks .as to the iluty of harhiiiir eonipanies
to k'l p the harliour free from ohstruetioiis,
anil their liahility for iiegleet. Hiiriiinnii v.
I'l-i^iiltiil, ,(■'■., 1. 1' I', III lliiriri// Jldi-liimr, '1\ ().
B. :u.
I'efemlants, on the .'ith Xoveniher, IKIid,
resolveil to elose tin ir harhour npoii ami after
that ilay, to iliseontiniie the reecipt of tolls, ami ,
to reniiive the light whiehwa.s plaeeil on the j
western pier as a guiile to the entr.iiiee ; this
(leleiiniiiation having hi'en lonie to in emise-
• pieli f the Water hetweili the Jiiers ami oil
the liar mitsiile tlielii having lueoiiie so shallow
an to emlanger the "largei' elass of vessels,'
vliieh Were ill the hahitot entering the harhoiir,
uiiil heiaiise the stormy Weather hail preveliteil
till ir ilreilging it out. A printiil iiotiee nf this
resolve \Mis aeeonlingly on that ih'y jiiit uji .at
i'ort lliirw ell, ,iml .ilso sent to ilill'eleut eolleitois
of ( iistoni.s, hotli 111 the . I'liitiil .states anil in
I'pper ( '.inail.i, for piihlieatioii in several news-
papers, in w hieli It was inseiteil. due of the
notlres was put up in the Custom House in
ISiillalo, ;iiiit was .also piililisliMl in a newspaper
thiii; on ".tth Novemher. The plaintill' arrived in
his Mssel, from a port west of ami l>e\iiiiil I'ort
I!urwrll, on 7th Novemher, having seen ilefeml-
aiits' light on his way ilown, and on the lOth
Novemher he eh'ared ag.iin from llulialo on his
return trip, .and on the morning of I Itli .\o\em-
lior, in lii.s ende.avoiir to enter defendants' har-
liour, in eonseipieiiee of stl'es.s of weather, the
vessel striiek on the western pier and was lost,
the iiiiniediate eause of the sti iking again.st the
l>ier heing, as aiipearcd, the ahsenoo of the light, ,
the presi lire of wliiili Would have cil,nlli.,l tl
vessel, wliiih was of light dr.itt, tn luti.r i J
to the time of the aieidelit neither |iLi|iit|i[ , 9
any one on hoiird had aiiv aitu.il imtin. ,,| ,,]
removal of the light : Held, revursiiii' thr inl
lliellt of the ('. r., 17 ('. I'. .-.74: | 'nut ''
feiidaiits had authority under the iiiiiiin.t,,,
to elose the harhour and remove tlie lij;!,!
That the notiee of cliising w.is siilliiiiut ...j
that the plaintitr «iis not eiititlid tn uitiiil ij
sonal llotlieof the faet : ;i. Thati|eti.||,|,.i||t, J"
not, therefore, liahle to the pl.iiiitiH Imtli,, |„.
of his vessel, and that they were I'lititlnj lA
Verdict on the ]ilea of imt giiiltv. Si:
rill I'll -nil lit, ,IV., Ill III, I'liil lli'u-ir.ll ll,',,i'l
I'.M'. I'. ;»7ii.
In tho ('onimon I'loas it was luM, in tli,. |
earn!, that in addition to the value nf liisv(,,J
the jplaintill was entitled to reenver :i imtin
sum expeiideil hy him ill good faitli, an.! »itl
reasoliahle expeetation of sllieen.^, iiiiittiiii
iiig to rai.so the vessel to repair her .V ( i-
i'. .-.74.
That an insuraiiee enmp.iny, «liiili Iii,| n,g
upon the Vessel, was not entitled tMr.v"v,r.
the plaintill's n.iiiie, moneys expeinled Kv it ml
similar attempt. //>,
Seiiihle, that a ple.i of imt guilty imt ii,
sue the negligence only, and imt the ili •'.
Icged. /'-.
IJeiiiarks iijion the evteiil tn wliirli tin i
session of means of know ledge tllrlli.^lu•.».•vl(i,a
of actual knowledge. //..
Held, that the defendants, in wIkhu tin iiJ
hour of Tiiroiito is vested hy llt.t II \iit. .
were not liahle to the pl.iiiiiilf fer mi n,
caused to his vessel hy ruiiiiiiig against mn
sunken jiier, at a point north ul tin' wiii.iiai
line, in the line of Cliiirch street priiiliii'til.\\!;(
street iliK'S not e.xteml to the watiT ; lii|>
pier was Hot within the limit.i of tin- liail«iiir|
vestud in defemlaiits, and they liad ii"
against the owner of the snil to ninnvv
Jtoiiil V. 'I'll' ( 'mil iiiiMlnin i:- ul' till Jlitfhmif^
Toi'oii/o, 34 i). H. .S7.
The ahovi' decision was .alliniieil nn iiiijit
Senililc. that the harhour was nut hy tlii-
utes vested ill the coniiiiissiniiers, hiit muKI
Works coiistructcd for its iiiiprnveiiiuiit.
ease distinguished from .Mersev I'ncksainl
hour l!o.iril Trii.stees -■. ( ;ilih.>,l.. I!. I. II.
and others e'ted, on the gruiiiiil that liiiv
harhour was .a n.atiiral one ope:j tn tlu' |iiiUi*
of right, not an .artilirial work elTctiil U\
deftmlants, and which tiiey nivitnl tlu' |'UJ
to tise on payment of tolls : Ihlil, al;
under tlie statute there was im iliity 11111"^
U]ioii the delVliihints to eiiiploy the filli'N |J
under their ciiiitiol, and the tolls wliicli liny
autliori/ed to im[iose, in rcinoviiig tlii' "I'-tB
tion coiiiplaiiied of. which e.xisteil hi'Inri' tl
iiicor]ioratiiin, hut that a ili.Mivtiiiiiwii-vi.ll
ill them not to he coiitrolleil hv a jiiiy. ."^ml
per r.iirton and Patterson, .1.1.. the cunrt
t^nipowered to draw infereiiies nf l.ut. tliattl
was nosullicicnt evidence to shew kiinMli'ilil
the defendants that the iihuc in iiiii.«ti"nj
dangerous to ves.sels. I'er ratter.inii. 1 . f
power to draw inferences of fact, whiii ;
hy consent, is not contineil to the coiirt^
Imt extends to Ihid court. .S. ''. >i' <i'- "
iiKii;
10.')4
jfeiidiiits, in whniu tin- li|
fsteil liv KUV H Vid.. ■
till' iilaiiitill fur :in iU;!
■1 liy niiiuiuu against .m(
millt IKM'lll "1 111'' """'H
liiuvlistivftpnKlii.v.l, '. il
ciid to tin- \vatfr; :■ -ll
tlic limitM ni tlir li;iil«'iirj
, ami iIh'V lia.l H" !»'
lIlMHtlll IV III
II was atlii'iiii''! i'" ''I'H
ilidiir was iiiit liy tl
ll.•llmllli^si'lMl•|■s. liut I'
llor lis iiuiiro\(iiKiit
mil MiTsi'V hotksiu
llilicial Willi
Ic, ill I'tiin'Viiii;
Kit a .liscnti-ii wa-v^'"3
itnillcil liyaimv.
It tlu' i'la'>' "1 '1"^'*'
II. Mlsre.i.l.WKiifs Casks.
fn
itain siuii i.ir tnii of Itl inliic frrt, (ii
CiilHmi'),' Hftrliinirc'iiiinKiiiy nn- imt wlmrf- !i
ln'cniis"' tlu'V Imvit ii'fctfd ]ii<'i!* ami
|iti' aj^rriiuciil sit cuit ill this rasi',) tiaii:<liii>iit'l
at Mniiti'iMl, a
pelt I'll till
II
iiiti
■vrtaiiiif
iliii;" ti> tlii'ir fliaitiT, ainl arc imt
liiTi' liarliiiiir ilms wrir rliarj.'i'il, ainl siiit tliiiu
fore rfs|Miii.silil(' fur ),'iiiii1m lilt u|iuii tl
V rail tiniM thi'iv
th
I
111 an ai'tinii liriiii:;lit tor
kbrv
cmiiiHtni-
.1. /.
I'll! II V,
rill
iiiiirti
lln
liailiiiiir liiiis thus rliaij,'!''! ami paiil l>y A. : —
lli'lil, that the (.'oiitiait luili^' tn ililivtr thu
;,'oiiilsat sii iiiiK'li prrtiiii, II. ua.si'iititli'il tl) iinvf
drill (Pilll
irlil
:tg. ».
4 Will. I^■. o, U'J, M. .', iiai'tifs li'iciviny thi'iii itclivfinl .at that jiriiM' Iiim- i,i ;ill i\|
the I'mt Civilil llailiniir, in itn . tJihinni-ihiiir rt n/. v. Yniui,! ,i nl., |-J('. I'. l.'tT
uiiliiiislicil st.ato, liiiist [lay the tolls pru-
Ipl I'liiiCfrilil lliirliiiiir I '<i. y. , /mil 111 III.,
hy|j|,f,, till' i|uestiiiii wiw, w iiitlii'i' till' hirlii
A iiarliiiiir ami mail jniiit stnrk I'niiiiiaiiv l>v
it:< rhait.T, K) N'iit. r. HI, hail |
IliWl'
'" 1
til I
ivy
tlills (III ;,'ii
lamh
pii
'I'llii'il liiiiitH
• liipp
till'
1 1
within ii'itain
rlx
riiails
)t'
lit .stall' til slii'ltiT vi'MsrIs, until wliiih w liarvos, .unl all llu' rial r«t ito wti-f tn I
;„llcMiilil iiiit 111' ixai'ti'il ari'iinliii;,' tn the v< ...tdl in thu ininpaiiy ami tlu'ii' siu'i'i'ssnrs I'nr
'Will. IV. ^■■ i">, mill till' jiiil;,'!' iliri'i'ti'il cvi
'II
II' Liiiiipaiiy limliiij^ It Ui'cfssary ti
tint if till' liai'liiiiir wiTe lit tn slu'ltiT imirtgavf' tlu' harlinui-, tulls, iti., iliil
(jnry
iiB.«lin'i'tiiii
SII iimit'i
vi'ssi'
Is, tn
lulil III' ili'iiialiilril : lli'lil, aiithnrity nf tliuir chai'tii', aii<l tlir iimrt^a^'uc
.liikiii" V. /*'/;'/ Hiiriri II //iir- fnri'i'ln.siil tlio si'iurit\ , iiitiTi'
I iiit
11 IMlsHCSSlnll,
T. T. 3 it 4 Nii't.
iniii U'tiiiii nyniiiHt a liarliniir rniiipaiiy, fur
p»'r
t(j iTListir H trjiiisl'ir nf stock l>v oiu: S.
ilailitllls
li.
that tl
11' I'liinpauy
hail
fillii'li nil till' sti Ilk fill' hai'lioiir tolls iliii
ami liiisi'il to till' plaiiitilV, who niiiiI ili'fiuilaiit,
ow Mil' of till' wharf within tin' --tatiitilili' limits
nf till' harliniii', for toll mi ^ Is shippnl or lamli'il
oil ili'fi'iiilaiit's wharf : llrM, that llii' plaiiititl
coiilil Sill' only in tlii' roriinniti' u.iuu', uml a iioii
iliiiii, ami 11
iilil not tlii'iii
sti'r tl
that
Mint was tlii'ii'lori' ilirirtii
ll7-iV, -;.A V. /Ml-
mff'
lidiisu til ri'Ulsti'l' till' assii; nt
■h,l III. V. itiiii'l Jluiil llaihu ■ ill., !) (J.
1!, tliit iiii'liT I- Vii't. ('. 81, M. (10. Mills.
i,tii.;i>iif tiiulii'r miuht In- in.'iih' to pay tliu
viii a liarliiiiir maMti r, ami tluir tiinlii'i' ilu-
I iiiv iiiiii-|iayiiuiit of ;i tax li'xii'il for such
.aiiil tliiiiisL'lvi'.s Hulijfct tn tini' anil iiii-
Mlillt. Hmliii'/ V. Tiiii'ii C'liiiiril nf III III-
..lit. I'. t.'.').'
[iie|ii;iiiitiirii\viu'il laml upon .'i iTCfk nuiiiiiig
ilaki- Ki'ii', at tin' imnitli of w liiih ili'lon-
Minci'lMirati'il liy 12 \"irt. I'. (Ht, construi'-
•Ji'ir liarliimr. .\ strai^^ht mit lunl liouii
kYiii;i*ly iiiaili' hy iiiinthur ininpaiiy, of wliiili
uphmlitl' liail lii^rii si'rri'tary, from tin' I'l'ct'k,
itWiitt his laml, tl) tlm Ivki'. Wliili- iK'fi'ii-
iKjWi.iv iiiakiiii,' thi'ir hailiniir, llio pl.iintitl'
iifiiUil lliiiii til iK'i'iirii tlii.s I'lit, wliii'htln'y
Lsinl iit his i'i'i[iu'st pl.'u'i'il on his l.iml tliu
phwhiih thi'V hail ilruiljji'il up. Itcforc ile-
^iuits ln'iiau tliiir work, tlii' plainlilV hail
bl .il'iiLi till' finiit of hi.s lot on the stii'ain,
CAiyiliilimt [lili' along till' laml lowi'r ilnwii,
' L'w.itiT hiiiig ilrivun up from llu' laki' hy
bWb viiiiU, sprcail over this laml, aiwl ran
mlidiLV nil tn tin; plaintill's laml, getting
1 till' iiilu-s whirli ill' hail placiil : lli'lil,
ilnKinlauts wi'ii' not lialiU' tor this injury.
ft//v, '/'A. I'ri.'<iiliiil, lii:, iiftlii- J'liif liii'rinll
'":-i:<i.,-M ii. |{. ;{4i.
I'ivorcil with tilt' waters of a liarl)iiiir, i.s
itUxiUv; lli'lil. therehire, that the liult'ahi
Liki- Hiii'r 11 IJailway ( 'o. eoiilil imt lie taxeil
Jtliirii'iikriih liarliDur. Tin lliiil'iiln uml l.itb
« /'. H . ' 'ii. V. Till ('iir/iiiriiliiiii I'l' l/ii Tuim
\Un-A, 31 (j. IJ. 117.
loiirgHarliiiiir |)el)eiitui'es issuoil hy the
TuiirMJKuii'g, miller i:{& 14 N'ict. e. >s;i,"vi;st-
tbtlurlitiiii' ill the town- -Form ami reijni.sites
l«itlhli;lifiitiiri'.s-See f 'y((ic/'o/'«/«(' !(/. v. ( 'nrjui-
fi'^'filif Tumi of Cuhoni-i/, '21 *). li. 11:5.
bvitig sntoveil into an eiigageineiit w itli
J'".:uryjjiimU fmni Livorpiiol to Jlainiltuii,
I'liii mill
C. I'
III.
Ity ;t \'iit. e. H;i, till' jil.iiiitiirs Were iiieoipor-
Hteil, ami were ileelaieil V) U' eapalile nf i.iUl-
tiaetilig ami heiii;; eniitraeteil with .siieing ami
lieillg Slleil, ite. 'I'hey were alsn antlinri/.eil tn
eiiiistriiet a hailioiir, to iiiipnse eh.irge.s I'nrthi' use
theienf, ami to ileiii.iml .iml ri'io\ er MU'h eliar^es.
It wa.s further en;uteil that if any person slnuilil
iiegleet or refuse ti) Jiay tlie toll.- or iliies, the
plaintill's might iletaiii the gomU on w liieh the
tolls or ilii"s Were ilue .iiiil payalile, until siieli
tolls .shiiiilit lie p.iiil : llelil, that the plailitills
were imt enlililieil to tlie lelileily hv Way of ili.s-
tress, hut eniiM al;<o inaint.iiii an aitioii. 77ii
/'ri tiili III, <1''., ()/' 11.' Itl'nllir llill'liiilir V. irAi'i,
•J.SC. I'. 1(14.
ii.vsTiNd.-^ (CdrN'rv of,)
Aets passeil tn renieilv errors in ri'^istr.itimi
of ileeils, ;i Vict. t'. I-.', ami Kt iS: I I Viet. e. .SS. -
( 'onstruetiou nf. .See Ciiiiqi'it'l v. t'n.i , 20 l^. 15.
t;:ii.
IIAWKKIJ.s AM> l'i:i)l.AI!
AC
in an .'let ion of trespa.ss for fal.M' iiiiiirisiimiient,
a plea justifying the arri'«t, a.s a eoiistalile, w itli
out a warr.int, umler the Hawkers .-uiil I'eill.irs'
Alt, ."iSCen. 111. en. for pe'lilliiig without lii.'i'lise,
must .shew tint tile plaintitV w.is fouml trailing
at the time of the arrest, ami that ilefemlant
took him liefore the nearest justice of the peace.
Oriiitl V. Ill II, I (^ I!. IS.
llFli;.
Sii I'^STArK.
Where limls have liecii soM liy a slieriil' uinlor
iv li. fa. upon a jmlgniciit against an executor or
IMAGE EVALUATION
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33 WEST MAIN STREIT
WEBSTER, NY 14580
(716) 872-4502
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HORSE.
m
julministratnr, the lieir-at-law is entitled to re- i count}' of Middlcaex, but ;ill witlimit th ■ 't •
cover till! surplus from the sheriff. J'ii(j!j/'.i v. i I^ondon. ISonie were purehased liv liiin ' "^
Udkif, 3 0. S. .'UT ; S. C. Ih. •27(). some out of the county, liut uniiu witl'l^
city ; and they were l)i'uui,'ht Ijy lii„i j||l|'
• city, placed m his tannery theru. an.l i„,„„.-.
HEIl! AND DEVI8EK COMMISSION.
An action will not lie for knowingly prosecut-
ing a false claim liefore the heir and devisee
commission, to the plaintiff's injury, and with
that, admitting them all to be true, no ground of
action would be shewn. Sli'dldx v. Dcli/ai/nirri-,
\-2 <). H. 88(1.
city, placeii in uis tannery tUcru, ana i,,,,,,,,-,
tured into leather. The plaintiff was a,,';,, '
tor of raw hides and leather, aiiiHiiut,.,! „„
•27 k 28 Vict. c. -.'I, •_•!» & ;io \-i,[;,, o/^,;™
Viet. c. 37, D., for the city and cdimty, iijviii
place of inspection witlun the city, Imt i,i,. ,1
1 11 f 1 • 1 •■ HIT-" '1 i.- ; where : — Held, 1. That liis coinniilsmT ,
knowledge ot Ills clanii :—-Helil, m such an action, '„,.„, 1 1 „i,. V , +i •.. 7 '' ' ' M"'"'.
J.1 i ii 11 i- 1 i 1 \ extended only to the citv, but t lat \\\< 1;,,;.
that tlie allegations were not suppoi-ted ; and t • , ,. . , • .. ,„.•,],,. 4. ,, '"- "'''^ nit iiimt,
- . . '^ . .. . 11 ' - - inspection iniglit extend to tile area as-i'ii ,1
him as the district in which tliccitvv,;'>"i'
although his acting therein wmili'l C '
, , . : witl' bini ; and he might in liis discmiM,,
J he commissioners under the heir and devisee ■ into any iiart of the province imt within m t
•act, in deciding ujion claims brnngiit before them, I inspector's lunits ; 2. Tliat all raw li '
are not bound ],y the stri t rules applicable to ' irreen raw hides, produced witliiii a citv
courts of law. Wiiere, therefore, a purchaser i f„r which there is an inspector iiiiiJt 1
from the crown devised land, for which the before beiii" soM there : tl
:iia|
le iiisiicci
Kit It prn,liK-,,l .
city or town, thcv artixem
from inspection until lirought within it -. aii4
sold without such
patent had not yet issued, to his wife for life,
with power of appointment amongst hisdecend- ..„
ants in tail; and she by her will devised her , then purchaser niust have lilei"/i\'i"j!irte(iT'fI
estate to one of such descendants iu fee, who i selling or disposing of them in anv \w nJ
appvlied to the heir and ilevisee commission ; and I ~ "" . ■ «
the commissioners recommended a grant in tail I
to the person named as devisee, and the crown
acting upon such recommendation, issued a patent
in fav(Uir of such ilevisee — to a bill afterwards
filed to set aside the patent as having been issued
iu error, or through improvidence, a demurrer
put in ore tenus at the hearing for want of ecpiity
was allowed. Sftuic v. lliu-lrifk, 7 Chy. 1(11.
The heir and devisee commission having re-
ported that the hcirs-at-law of A. were entitled
to a patent of curtain lands in the Indian reserves,
(.'harlottenliurgh, the governor in council after-
wards, upon a report of the solicitor-general in
favour of H., a brotlier of A., issued a patent to
B. for the lands. The heiri; of A. tlierenp(ui
filed a bill to have the patent set aside and a new
patent issued to themselves, u[>on the ground of
the patent having lieen issued to B. under an error.
The court having found there was no error of
fact: — I'-ld, that the patent was properly issued
to B. notwithstaiKliiig the linding of the com-
mission. McD'Hd-iii'idx. Me/)i((niii<l, i) t'hy. 144.
Semble, this court may, in a proper case, set
aside a patent issued ujioii the linding of the heir
and devisee coinmission. Ih,
HIDES.
Upon a sale of hides by weight, of .specified
qualities according to inspection, i.e. , "cure<l
and inspected >.'o. 1 hides," &e. :— Held, that
the weiglit as ascertiiined and marked by the
inspector, under 27 i>i: 28 Viet. c. 21, and 2!)&30
Vict. c. 24, were binding upon the pa'ties in the
absence of anything in the agreement to the
contrary. M<vh-(<tii v. Tlionic, 30 i). B. 4()4.
Held, that the seller iinist })ay the inspector's
fees, the agreement not providing otherwise. Ih.
Held, that upon the evidence set out iu the
report of this case the defendants were acting as
principals, not as agents of the plaintiff's, the
purchasers, and therefore couhl not charge com-
mission. I/).
Defendant bought hides, some of which had
Ijeeu proiluced within and some without the
ever ; 3. That the tanning or usini; tht hij
in his own business was not a '•lilsimsiiul
them in any way wliatever,'' within thi^titf
2;> & 30 \'ict. c. 24, s. 1. Wilson. .1., 1
Defendant, therefore, was held lujt li;th|i;'to|
lienalty for not having these liide.s
Olircr q. t. v I/i/iiiKii, 30 Q. H. .■il7.
HIGH TltE.\SUX.
.SVp Chiminai. Law,
T.
HKJHWAV.
Siv ^^'Av.
HIRIXO.
E.Mr•Lo^■|••.Ks ou Seuvants — .V-
.VNi) Skrva.nt.
Mt
TI. Ok Horsks-'-.SV'c Housk.
HI. Of HorsF.s — Sir Landluud andTexJ
HOLIDAY.
Sae PiiACTicE XT Law— Simiav-Tdis
HORSE.
I. LEN'DINCi OK HlIUN'fl.
1. LialnUlji fur Jiijurii-.i, l(!,"i7.
II. W.iRHANTV, l()r)7.
III. MisrKi.i.A.SKovs Casks, KiJS.
IV. LiF-.v OF Innkeeper — A' Innkei
V. l.VJrRIES ilV XEfa.KiENT Manai:i
OF— .SVc NEIILKiKSiF.
VL llACINd— *'<' Ga-mimi.
1G3
l)Ut all witliiiutthecitv
purchast'il liy liim iiiaa
inty, Imt mmi! witliin 1
lirniijilit liy him intu
luiui'v there, anil maimfal
rhe \iliuiitill' was an iihjij
il leather, aiiiinintfil
2<.) & SO Viet.e. •J4, ;ui.lj
e eity and enunty. Wing
ithiii the eity, hut iiutty
hat liis ciimjiulsiiry (mv
I city, Imt that his hinitsj
,enil to tlie area assi;:iitilj
II whieli the eity v,\',ss!tuaj
; therein wnuld hu i.jitioi
light ill his cliseretiiiu:;"
prnviiiee imt withiiuiii>l
•2. 'I'liat all raw liidt,
(idiieeil witliin a eity (irt
II iiispeetor must lie i«s\ii'd
there : that if \ir<«hii.M(l i
'itv I IV t'lwn, they arciMnj
:il linnij.'ht within it : aii.ll
it have them iusiieettil liff|
' of them in any wiiy \vh
tanniiii; or u.sin;: thf kil
ss was not a '•ilis|insiiigl
ivliatever," witliin tliestatj
'24, s. 1. Wilson. .1..
)i-u, was held not hahlitn
aviug these hides iiwritl
i„<iii, :w <,>. R. ."'17.
HORSE.
10r)8
IIH TltKASUN.
Chiminai, L.wv.
HKiHWAY.
,SV«- Way.
imuNt;.
1,1! Skuvants — .^''■
|;r.KVANT.
S^-,SVt' HOHSK.
L Sl-i: I.,ANllU)l!ll AM
TrsJ
H()1.11>AY.
AT Law— SiMiAV
HOUSE.
1K HiuiN-c.
I.'/ f^'' liU'"'"'"'
Ki.'iT.
-Tims
iiiriT
KOrs ('ASK^
U),-)S.
Innkkf.
i-r.ii — .''I'
IVY
■Vir
NKiiUOKNl'
Nf.C)LIOKSI.'E.
<;amini'.
Innkb
Masai;i
SKlltf
I, Lf.n'DIN(i ou HiiiiNf;.
1. L'inli'dil ij for liijiirhx.
1 1 lent ahorse to B. for a sjiecial jinriiosc, anil
ifl! was using liini uoiisistuiitly witli sucdi
ijj r, the liorsi! was .aceitlentally hurt, ami
intiiutiitlv li-'ft "t aimblic stalilc, of -whicli H.
1. immediate notice. A. having seen the
ri'fti3'-''l to take him, anil went to H.'s
20 miles from wlicru tlio horse was
ami ileiiiandeil him hack sonnd as rc-
Je(l:-Htld, that 15. 's non-ilulivcry of the
alter sneli deniainl, did not furnisli cvi-
i,f 1 ciinviii'sion, and tiiat A. could not
„ trover. Il''/'-' v. Cnir, 5 (). S. I'O'J.
„c iilaintiff charged defendant with taking
"iiuR- 111! !'«"' '""' "■■^'iig '"-'•' iniproiierly,
ftliv she died ; and defendant ideaded that
tomuiltlie niaru on a contract for hire, not
l((iii --Held, a good an.swcr. Jlolniisnii v.
' y. 15. ;54.").
JlTcin assiimiisit for the immoderate riding
j,,,y loaned to the defendant, and not ru-
iii;.' litr. with a breach that she was not
lotAto [ilaiiitilV, liut was so injured that she
; (letciidant pleaded one plea as to re-
.. her only, the plea was held a good an-
tii that part of the lireacli it professed to
i:„miMl V. Bualton, -1 (,). B. L>0-_'.
iction at'ainst a bailee for killing a liorse
t.i hiw hy cureless driving, ami breaking
.:;.'v and "harness, and not returning them.
:';{ That the horse was a runaway horse,
lie ilamaye occasioned thereby ; 4. that the
itij' liiivil the horse kmiwiug biiii to be a
m\. and that he ran away without the
,); the ilufeiidant ; ."). Tiiat defendant did
ti. return the buggy and harness after they
!iriiktni-Held, pleas bad. J/'7v((// v.
!■"«, r. (,i. 15. •.'.")7.
flaintitt' lent or hired his horse to S., who,
u a journey, put it up at defendant's inn,
itwas strangled in the stable there, owing,
lijiiiv fimnd, to the negligence of defeli-
jscrvaiit in tying it up in the stall : — Held,
ike iilaiiitilf might maintain an action tliere-
ll"*.,'v..s7»(/7«-, ai (l 15. 340.
|[. Wahuantv.
L«1B. exchanged horses, and 15. gave A. a
ii'tthe ilirt'erenee in the exchange ; A. sold
lliiiKe he got from 15. almost immediately,
;■ two years, during whicii nothing ap-
pl to have heen done by either party, 1>.
lujmn the note by A. : — Held, that H.
Jlni't set up as a defence that the horse he
liwUas unsiiiuiil, although A. had declared
li^T ;iiiia fault and blemish at tlie time of
lh'ily.i;,l,'ii,(iti, •MX H. ;5'J.
piaetinnon the case on the warranty of a
ttlit [ilea of not guiltv puts the warranty
ilumwrJI V. Jhtns, •_> (I B. (;:5.
BiinlMt sold plaintifl' a stallion, \\arranting
liilH.a ^iioil eiiverer and foal-getter. The
^timinl out worthless as a foal-getter, ami
f gave i\'A) dai:'ages. 'I'lie Court, al-
"tisiileringthe damages too high, refused
► tnal. Siil,iu.i\-. XhihliiKjiilf, 7 (..'. 1'. -'(!(!.
>-'-''''initiiiil'Siiiiriii Aiifh-iiltiiriil Sdriili/ v.
l-'Ml (114 ; Cnwj v.' Mill,,; '2-2 V. V. ius.
T'laintiff sold two hor^ea to defeiid.int, who
sent them back as not agreeing with an alleged
warranty. The plaintirt giivi, Ini.i repeated
notice to take tlicni again, or th.at siie diould
charge him for tlieir keep. Defendant, in
answer, insisted that he had a ri^dit to return
thein. The plaintitt' h.iving sued upon conimon
counts for agistment and jiisturage, the jury
found that the horses belonged to defendant : —
Held, that the plaintilf could not recover, for
the mere fact of ownership would not make de-
fendant liable, and the evidence as to his con-
duct, i*tc., tended to negitive any implied reijuest
or promise to pa\'. J/a/lii/m/ v. While, -JU (^t. B.
5<i;5.
When
and lion
in. Mrsir.i.i.ANEdrs Casks.
a horse was stolen from the' plaintifl'
....,v ......j^ht by defendant at public auction, but
not in market overt, and the plaintill' afterwards
seeing the horse took possession of it, ami de-
fiMuhint immediately retook it : — Held, that the
plaintilf had a right to retake it, no property
having passed to defendant by the sale ; and
that although it w s in his jiossession only for a
moment, yet the property revesteil in him, ami
he could maintain trespass against the defendant
for the retaking. Jlutrimiii v. Vii li/ini/ ( l a/., M.
T. :} Vict.
Qua're, as to a favi'ier's right of lien on a liorse
for services rendered. A/co'/.s v. JJinifiii, 11
Q. 15. ;5:5-2.
A lior.se onlinarily used in the debtor's occu-
pation, not exceeding in value S(JO, is a '■chat-
tel" within the meaning of the Exemption Act,
2."> \'iet. c. '2') sec. 4 sub-sec. (i, and is, therefore,
not liable to seizure for debt. J)((iiil^ijii '/. a(.
V. J,'r,/ii,>l,l.-i ,t «/., K; C. r. 140.
A person serving with or attached to a militia
cavalry troop as (piartermaster is an otticei' there-
of, and his horse protected from distress under
sec. 31 of 18 \'iet. c. 77. Dniuij v. Curtirrlilit,
20 C. P. 1.
Defendant having charge of the plaintilV's
colt, took it to a biacksimth's shop to be shod
for the lirst time, and having tied it there went
out. The colt pulling back threw itself, ami
received injuries of which it died. The plain-
till' sued defendant for negligence in so tying the
colt instead of having it held while being sliod ;
and several witnesses were of opinion th.it what
defendant had done was iiiiproper, w liil.' others
thought he had adopted the iii'o[iei- [ilan : Jlcld,
not a case in whicli there should be a nonsuit oil
the ground that tlie evidence was consistei it cither
with the existence or non-existence ol negli-
gence, but that the ipiestion was for the juiy.
Cotten '•. Wood, 8C. I>. >■'. S. ."itlS, and .1 icksoii
i: Hyde, 2.S(>». B. •Ji)4, distingui.-^he I. llendrrMiii
v. /JKnits, 32 (>|. B. 17<i.
J)eelaration, that defendant was po.ssessed of
a wild, vicious, and mis Lhievious horse, and it
was unsafe and improper to p;'rmit tiie .saiil
horse to go or run at large on any .public highway,
yet defendant wrongliilly and negligenely per-
mitted and sulicred the horse, so licing vicious,
&e., to go at large on the public high '.iv, where
the plaintill' then lawfully was, whercoy the
horse ran at and jiini[icd iiiioii tlu" plaintill', ami
broke his k'g : Held, b.id, lor knowledge of the
animal's vicious nature w.is not averred, and
j i
^■£Slsf■'
mm
) ■ :■'
I
• it'-'''-:,.'
.(,:
k
. ' i ■
J ; ■ • . •■ ■
J
m
icno
HUSBAND AND WIFE.
W,<}\
the allowing it to lie r.t large on the highway,
was not a lireaeli of any diitv iluo from defendant
to plaintitl'. ''//„>■,. v. M<''lh,ii<ilil, '2,") ('. \\ I'-'!).
' convey their dofcasihlc title. Ilr],,,... m- ,
Kit'. P. •-'!». ' '■'''.
(.tua-re, whether they eould nrit ;il,<,, -,,
i this land nnder the seeoml
IlOTClll'OT.
A child, who has lieeii advanced, i.s lionnd to
bring into lioteh])ot that wherewith he lias lieen
advance<l only when it has lieen so expressed in
writing, either Iiy th.e parent or tlie ehilil so ail-
vaneed. /•'Hiikiii v. Fi/ninii, 15 Chy. CA'A.
A testator devised a projierty to three grand-
dangliters, as tenants in eoniinon in e(|nal shares,
and then devised to one another pro]ierty in
severalty, adding, " provided always * * that
the said last-mentioned jiroperty so solely de-
vised to my said granddaughter A., shall he
valued by my executors hereinafter named, or
the surviv(jrof them, and shall he dedui;ted from
her one-third i)roportion of tlie said lands here-
inlijforo devised to my said three granddaugh-
ter.-, in pro]iortion to the value which my said
executors or the survivor of them shall put upon
said lirst-mentioneil land ; and in case I shall
sell any or all of said lirst-mentioned lands, or
that aftei )ny decease, my said three grand-
childien shall sell the same, then and in that case
the value aforesaid of tlie said residence and
]ireiuiscs, hereinliefore devised to my said grand-
daughter A., shall he deducted from her one-
third proportion of the proceeds of the sales of tiie
said lirst-mentioned land :" — Held, (reversing
the decision of I'roudfoot, ^'. ('. ) that the above
clau.se did not constitute a hotchpot clause ; that
the rents of the lands devised in .severalty were
not to be accounted for by A., but that she was
only entitleil to the same proportion of the rents
of the land held in conniion as she was entitled
to of the land itself after deducting the value of
the land specitically devised to Jicr. I'roudfoot
V. C, diss. J'liil)ij>s V. Yitnajoil, 21 Chy. O'J'i'
pn.visd, the
''''•■'Hiire
"gift" being often confounded with ''C.,/" >
If tliey couhl, they had assigiu..,! to tliu |,l"i','i',j i
within seven years, and in eitlier viow th. i .; '^
he was entitled to recover. //<, ""''
HUSBAND AND Will:.
[T/ic rhjIitK and Unliilitici it/ liiixhn ■! „,„/ ^,..j
liari' liii'ii XI, iiKitirliilli/ c/iiniii'il In/ ih, .irf„i'iJ!!t
C.S. U. ('. r. 7.3, am/ lain-'li-ijUfn'm,, llmiinJ
hi-i'ii (•Difi'liri'i/ iiiuri' con '•rnh ut In ij'd;. //„, ;,,.•_■ 1
ini'lcr tilt HO lilntntcH tui/illii r, 'I' In- ,;i.«.g ,/,,,. ,1
■■<iili-/ii'ail K., i;i:n'pl. tliDxc ill \\\ | (^.J „,., ,,.| , j
fore coufiiii'd to iledtioiix lufurr or iiiili.,,,!,,!,'^ '
tlii;.-<e arfx.]
1. M.VI!HIA(ii:.
1. I'll/illi/l/ III',
iik;
HOTEL.
.V(-(- I.NNKEErKK — T.VVi:i!N.S .\ND SllOl'r
HURON fOLLEOf].
By their act of incorporation 2() Vict. c. ,SI,
Huron t'(dlcge is authorized to take, hold and
convey lands sold, given or granted to it, ]>ro-
vided that such land so hehl shall be only such
as may be reipiired for the puiposes of college
buildings, &c., and provided, also, that it may
acipiire any other real estate, by gift, devise or
l)e((Uest, and hold the same for seven years, to
revert to the person from whom it was ac(]nircd
if not disposed of within that time. The plain-
titl' in ejectment claimed as assignee of a mort-
gage executed to the college in 18(14, ami assigned
by them to him in the same j'ear ; and it w,as
objected that they had no power uitlier to take
or a,ssign such mortgage : — Held, that under the
first part of the clause the college could take
the Lands ; and if prevented from liolding it bv
the first }U'oviso, that the crown only could take
advantage of their disability, and they could
•2. Proiifiif.
(a) (li-iK'i-aUii, l(iTi3.
(b) In Af/ioi>-< III' Ihiir. I'—Si, li„.;
.'}. ('iinti-acfa in ('unt'idi nil'mn uf M,i,;;.„
— /SVc ("ONIKACT.
TT. Action roii JJiiKAiii m- |'iiini|,|;, ],;(
III. M.vi!KiAr;f; .Srrn.KMKMs anh A.'d
MKNTS TlfKHKI'ol;.
1. Antr XkiiI'hiI, Kid',").
•_'. Pi,Ht Xiijil'ml, 1()(17.
3. Frandiilfiit ir/iiinxf r,-, ,/;/,„■, ,,,.
chancrsSiv l'"HAnjr].i-.\rr.i\vii
.VNCES.
IV. Oi'ER.vrios- oi' ]Mauiiiai;f. h\ \\
I'UOrKUTV.
1. Cuiircijana' of IVij'i's Jlml E-^hii'.
(a) Cerlijicati' and EMtinimif;,,,,. 1
(b) Dcfi.iiDils iiiidiy C. S. r.c. .-. ;. . ij
,!■') ]'ict.c. l(l-~Sii ii/i. \f',\'.>
(c) JJccImiiii.i Hiidir.l'i Viii.i'.:-.
(d) Otliir Caxi.i, 1071.
'2. Ol/wr CntPK nl'ithni hi \\':i'.\
Estate, hu'2.
.'!. Wifc'.i Ei/iiit!i to ti Si till- nil III, Vul\
4. ]Viji'n Si'iianili' EkIiiIi- ill A'iy»f7r;,
5. J[iinhai)d'i /idifrif.
(a) Gi'wvallii, liiT;?.
(b) Tena iici/ hij tin- t'ldiisij-S, . };-r|
V. QrAiiANTixK, 1(17-1.
VI. HusiiA>i)"s LiAiiii.rrtEs.
1. For Wii'"\t Xi-ei'xmi r'li^^ lil74.
'J. On Cunt nuts nnuli In/ U'ij'i, lij'il. ;
VII. FlUVir.KdES AND (NCArA( iriKs iifII
1. Pririli'i/i' from Arrcut ui' Ai'"'ii
1(177. '
'2. Lialiiliti/ on i'liiiirni'i.-i, 1077.
3. Lialilllt;/ in Eiiiiilij fur FM'."l'it\
ri'prcHinliiliijii, l(i7S.
VIII. Deed of .Skpahatiox, 107!).
i title. /)'"7n,'v. IIV.,^
ey ciiulil nut iils.i ati|niiel
suciinA in'iivisd, tk- wutill
oiifduuik-il witli "t;nii,i;'
kI assijiiifil h, till; vlMititfil
1(1 in citliiT view, tbi.i\ii,i|.J
cover. /''.
\) ANi> NVIIK.
I/,/ cIkiiiiI'iI 'i:iII'' ■"■''';'.' J
,/ Ai/i-r liiiU'.ii'iiiii. ;/iii';ii„,jf
I'liiii'iii'ti III III i;ii'i ''ii '"'•",
fi„l,ilii i: 'I'll' '•"-- ''■."■!,
//m/n.- i/i IV. 1 ii.-;, "!■' t|(.f«|
siMd^- /"/"/•': o/' 'tii'li'i.fii'lnl (
':'>
ii;i;i.
[,-thiii>i nj /JoiCi ,•—.>'" Ill'MEl
,s ii>. CoiiMii-iili'jil i/ J/'imnj
(J CONl'RAI 1'.
R BUKAill (iV ?UOMbF,
; SF.rri.KMKNTS AN!) .Vl\
( THEUKKiill.
'niitiitl, Kii;.').
'(ipliiil, H>*iT.
i(/(')ii! (finiiixi r/-((/(/«i'.< !«• Pi
[sees- >''-'' Fi!A\-i)n.r.NT('"Sv^
•K.s.
^- (iv Makium^f, UN V:
nurv.
L,,„,,/- \y[l,\ll.:'llE>M: ^
Irtitii't'l'' '""' A''"""'""'"'"' '*
.•Ithiii'iiiiiili'i'^'-''^- f''-''"
(■;.<('*;/-i iimlif ■i'i I'lV. '•■'■• ^i
I/,,/- C'(t"''-S 1*"'"1-
C(f,.vf.i i-i-hll'iiuj III
/.;,/»i7;; '0 II .SVH/fHCii/, Iwij
Srpiinili' ^■■''"'-•' ii> I^'1''''''jA
liid'.i liili-i'i'^l-
llrfllHH, l'>''^'
INF., If'T-l-
s LiM'.n.rriEs.
'(/■<-'.•< Xcccivi'/'"", I'i'-t-
Iks ani> lNr.\i'A"-nK-"v\^
,,,;,, from v1p-c.s( «/'.li
,7',, ;» 7v,''>'." .'::'• ^'■""■''''j
Ski'AUATHin, ItlTO.
HU8BAND AND WIFE
IX. ArTIO
AN"I>
Suits
A M > A(
Ht SliAM) AM
Al Law.
W
I'di- hijiir'ivK III Wife, KiSd.
1(;g2
ATNST I anco exceiitcil ;is a iVnie snle : - Hclil, that the
1 act liail not sucli a rutrospeutivc effect as to
; ile»troy the ilc il. I'riinilc v. Allan rl al., 18
(). li. '".75.
I c,
(li) /'("• Criiiiiidi
(cl Otlifr C'co-.i, 1()82.
ifiiiii, li'iSl.
It is not necct .aiv tli.it 11
solennu/eu in :i cliuich.
/,
<). 15. (i04.
i;irriai.'es slioii
t'lijiliil V. .
l.l 1h
14
^\'herc baunh have lieen imlili.slied, ami nodis-
ic Imsiiani
I 1»
unilei' age is no olijection,
(a) 11'!/"'' Siiiiii/ III/ Xi.il Fri'Hil, l(iS4. sent then exjivossed hy jiaieiits or tiuanli
(h) Sirvk-i' iif Pojii'i's, lOSd,
(c) Aiixii'i'i'iin.li lliSd.
(d) Olliir ('(^^r.^, KiST.
Piirl'iiK III Fi
MoliTOAdK.
climnr
Siiit.<
iSi'i' 1
even hy tlie I'Jiglisli Marriage .Act, 2(> (!eo. II.
c. Xi ; Imt <^>iueie, whelhijr tliat act is in force
here. J li.
Senil)]e, that the act is not in furif here, /'i-
\. llMllTS AN
1) LlAnil.lTIK;
iK HrsllAM)
i/dlll V
liill, 15 Q. H. -.'ST
AM>
\VTri: iNi>i:a
C. S. U. C,
AM> mi;;
colli).-: 11)11:
III
' ihn.tuinH il)l(li')' 0,1
I'.lH'KNT STATtTES
In- c. s. r. C. <:
Ir
■.H,
l(i89.
It is illegal, here as it was in I'nglanil hcfore
'J(i (Ico. II. e. .'l.S, to marry by lieeiiso, where
either of thi; parties is niuler twenty one, with-
out consent of ii;ireiits or
Vii-t.
Ji:, iGsns.
DfcUiunx lunh'f oU Vh:t. '<•. IS, — .SV
1()70.
XI. .\i.nioN>
<il
i/'('oii)-l ii/C/nuiiyi-;/, lt)!)(J.
gu;ir(lians ; anil the
it of conncnt is a hreach of the lionil given
on olitaining such license. J'l ijiiia v. Jx'uhlu), 21
Q. 15. ;15l'.
Scnildo, ho
is not in force here,
that
A that s
if the statute
nch marriage
[, Jtirixihi'iiiii) '
•,'. liV/V <ij A)-)-i--<l, UiOt).
;i. \\')-it 11/ Xi- L'xfal, HJ97.
4. Willi) iji'iuili-il.
(a) J)f'ti-)-lioi) ami C'rinllii, lt)97. |
{])) /))lirhn AHinuin/, 1(598.
(c) Olhir CiM'x, 1700.
,'. A»wiutt, 1700.
1;. Pi-m'tm', 1701.
;. CiikI.-, 1701.
5. M'-f fi-u))i, 1701.
;i. Olliif f Vi.«.y, 1702.
|X1!, MlSCKLI-ANEors CASES, 1702.
Sill. BuiAMY— Ac CunriNAi. Law.
JilV. DowEK— .Vtc Dowi.:n.
XV. CVlMVETESCV OF AS WlXNESSE.S— .V": EVI-
DENCE.
^Vj. L'lsTODV OF Infant — Si'<; Infant.
therefore is not void
The nlaintiti' in 1
liisfathi
If..
iectuient elaiiiird as licir of
ive ni
who, it apikMi'ei
1. whih; a si:
the State of X'irginia, had in IS'Jo been 111
to the iihuutiU's mother, S., als
1
marriage
with tile
sla
Th
was iierformed 1
ly a
l>;uitist minister
eerenioiiv, and witli all the for-
malities praeticalile to nuake it liiiidi
hu
t witji-
out
icense, wliic
h .shi
ivcs could not ootain.
Mahhiaiie.
Valiililii iij.
They lived together as man and wife until ISIill,
H. liaving a liousc of his own in iiiclimond, and
working at his trade as ai>aiiiter, Jiayiiig his mas-
ter for his time, as w;is customary. In 18IW he
escaped to Now Voi'k, wlicre lie married another
woman, wliile S. remained in Kiehmoiid, and was
.again married tliere. it was proved that 1>y the
law of \'irgini;i, until the hist live ye;irs, skives
were incaiiahle of marrying: th;it to constitute
a strict legal marriage between free persons, a
license was essential : but tli;it slaves could not
ol)t;iiii it or in any way contract . leg;il marriage,
being reg;iriled by the law as property only, not
lersons. It was contended that the parties
laving done all in tlieir power to make their
marriage binding, it must be ludd valid here, the
only impediment to its validity in X'irgiiiia,
arising from tlie law of slavery, wliieli luir law
eouhl not recognize; but, HeM, otlicrwise; for
the parties not lieing Hritisli siilijeets, as in I'ud-
iiig c. Smith, 2 ilagg. Consist. I!. :iS5, the val-
idity of the marriagi; must, according to the
eterniincd bv the law of the
\l
iMarriages contracted in Ireland between
icilitrs iif the Church of Kiigland and Presby-
iaiis, celoliruted bv ministers not beloiiLdiiL' i 111
1,1, ., , .- ,. '', , 1111 *ii ° general rule, l)c
ItntUimx'h ot himlaiid, are leg;ilized liv the ■ ° , ,' ., 1 1 * 1 /;
I , . . . .?,.,'•<- .!.■ 1' 1 countrv where it was celeliratcik V/cc/v.'*
|itn;U statute .) it (> \ let. c. 2() ; and such ,, 'mo \> io.>
1 1 i 1 1 f ii i. i- 1 1 ! vniiiH)' .il 1,1. Ji. IhJ
nagt'S i;clulir:vtc(l lielore that act, are legal !
Dill' d. yy/v,(/.-
•ga
.'/ V.
I The intestate, H, M. , was married in this pro-
vince in 1S50 to the sister of his deceased wife.
• liy whom he had children, and died in IS5(i : —
Held, that, though the marriage was voidable
; during the li\es of both icirties to it, yet not
,,. ^1 ii-\i 1 i.1 ■ i 1 1 il , I having been called in (luestion till after the lius-
i). .^110 ciinveyeil to M., but being tohl that i , ]• 1 i.i i. 4. , 1 * t. 1 • r
',,,•„,„. •'■„ , ' i. 1 4.1 1 11 band s death, it must now be treated as indisso-
nurriane was illegal, executed the deed bv , , , 1 j.i \. ti • ti ,- i.n 1 „„
^fi), ■ 1 f 1 11 ■' 1 Inble, and that the issue tlicreot were entitled as
or I'niiL'le, as if she were sole, lier 1 , ■ u 1 • w v ■/ o/'i,. -ui-
1 ■ i.1 i. 4 fi. .Li heirs. Jliii II))).-! w McJsi'il, '.H\i\. Aw.
treeu henig the witness. After the j ■' •
<if II duo. IV. c. 30, her heir lirought ; Held, also, that Lord Lyndlmrst's Act, 5 & ft
Inii'iit, umtendiug that that statute con- ; Will. I V. c. 54, does not extend to the uolo-
fl tk marriage, so as to avoid her convey- iiies. /'/.
riajjes in this country.
•;/, i q. B. :14!».
B. ?., iiatentee of the land in (luestimi, was
riiil to (iiie (J. by a methodist minister, wlio
i that time no right to solemnize niatri-
aiul (i
I" -'"'^^mmmm
1GG3
HU8BAND AND WIFE.
liJOl
•2. I'nx,/ of.
(a) (t'i'iii-rdlli/.
A reenguitioii liy a piirty tliat A. is lii.s wife,
is suHiticiit tci cliargt: iiiiii with iifcusHaviuH, :il-
tlumgli tlifV ilii not cip|ial)it, having in fact sep-
arated ; anil altlidiigli sliu may not atrioti jnris
Le liis wife. J/nir/n/ v. JJaiti, Tay. ;58.").
In trusiiasH for crim. con. tiie plaintill' ninst
give strict jiroof of liis marriage. More casnal
conversations of defend.'Uit, in wliieli he has
spoken of the «(inian as the plaintill 's wife, or
letters from liiiu directed to her as such, are not
suJiieieut. Cuinjiliill v. Cun; ti O. ,S. 4Sl'.
A ccrtilicate of marriage liy a magistrate in
the foll<iwing form : " I do in^reliy certify that 1
have tliis d.iy married A. and H. according to
tile Ciiui'cli (if I'lngland," datcil in ISOI, with
proof of coiialiitatiou and reputation, Init with-
out i»roof of publication of lianns :— Held, sulH-
cient to estalilish the marriage against the
evidence of c<ihabitation and reiiutatiou of mar-
riage with another person alive at the time of
the second marriage, defects of form in such
cases being cured hv 11 (■co. W . c. 'M. Dm d.
Wliiik-v V. M,'\y,!lnu,i.-f, -1 Q. B. 77.
Where a marriage in fact has been proved,
evidence of reputation and cohabitation is not
suthci('nt to establish a prior marriage.
existed in relation to it a written I'lintra,.*
imxluced. Frank \. ('(irtun, Me. p p;'- "'■
The declaratioii contained four ciiMiits • | r
breach of promise by defendant, an uii'inar '
man, to many the plaiiititl' within a rfasiiinu'.
time ; '_'. For cleeeit, that the defendant an '
married man, falsely, itc, persuaded iila'intji)'!''
go with him to 'I', for the llurp(l^^Mlt■ liavin,
legal marriage celebrated between tlicni.'aiid't'',
enter into a pretended marriage, and iii'i'toii,|!:'
that said marriage was lawfid, and tlieruliv i',! '
suailed iilaintilf to cohabit with him as iiisni't;!
;\. That defendant, &c., pretended tn i.laiut'ii
that he wasunmarrie<l, and desii-ous uf niairvii"-
her, an<l )iy false )iretences caused her tii 'sii'
mit to a pretended marriage with liim ■ Vi ,'
falsely, itc, persuaded her t'liat it was alawfi'i
marriage, and thereby induced her tn nilialo't
" '" ' "videiitu \ia>
Jh)c d.
IIVieeA
( r V.
Mc Willh
;! (I ]!. ll).j.
The presumption arising from reputation may
1)6 rebutted liy proof that the w<iuiau formerly
lived with another man so as to raise the same
presumption of marriage Mith him. The plain-
tifi' having put in a will, in 'which the testator
spoke of H. as his wife, was not estopped from
deriving the marriage, (.icun/i; v. Tlwiinu, 10
y. B. (io-i.
Iteputation and cohabitation for twenty or
thirty years is sullicicnt in ejectment, and if the
jjresuniption therefrom is to be rel)utte(l, it must '
l)e by positive testimony. JJw d. Hrcaki-ii v. !
Bffiikiii, -1 Q. B. \WX ' !
Where the evidence as to tlie fact of marriage
was contiieting, the court ottered tlie plaiiititl' an i
opportunity ot obtaining better evidence or an
issu(; to tiy the (piestion, and if refused directed
the bill to lie dismis.sed. JJitki-r v. \\"tl--<(ii(, ti
Chy. 003.
A separation deeil executed by the deceased
liusl)aiid, wherein he acknowledged the plaintill'
as lii.s wife, with proof of payments made to her
iinder it, and a certitieil copy ot the registry of
marriage, from the parish registry in Ireland: —
Held, sullicicnt against infant ciefendauts, the
a<lult dcfcntlants, by their answer, admitting
the marriage. Coti'j v. Tnii/ilildn, 8 Chy, 483.
The testimony of a woman of the ceremony
having been pertormed, and evidence of respect-
able witnesses of general reputation ; -Held,
.suliicieiit, without proof that the clergyman who
performed the ceremony was iluly authorized ;
and that evidence of reputation alone was suf-
ficient, lidki r v. ir//,v(///, 8 Chy. 37().
Held, that a written contract was not essential
to the validity of a .lewish marriage, which had
been solemnized with all the usual forms and
ceremonies of the Jewish service and faith ; and
that such a mairiage was valid, though there
with him : 4. J''or an assault. I
given of attentions to plaintill' by dtfeniianf .„j
of lettci's ; but it iippearcd that dclendaiit r.'
then married, and plaintill' was aware i it it ir
was also proved that de''cndant had sai.l 1,.
would persmule plaiiititl" tliat he was (HvuivJ
and take her away, to spite liei- eliildreii ; ;i||!l
that jilaintill' had said she would have lui'tlm,
to do with him till he was free I •cfeiiilaiit « « I
never divoreeil, and his wife was still liviiii:attC
trial. l->efenda;it and plaintill' sulisei|iientiv«i'i,t I
to a hotel in ^V., and afterwanls tmik aliiiuij
there, passing as iiiaii and wife, and residul tW I
for a short time. There was no positive eviileinB I
of any marriage I'crcnioiiy : ll(dd, ouiin,ti„iiiar|
nonsuit, (A. Wilson, .1., diss.) that there was no I
evidence to go to a jury on any uf tliu ooiiiitij
■_'. That the presumption of innneeiiee, that ile-'f
fen.lant had not been guilty of a cdnsiiiraiv, uaj
an answer to any presumption nf a iiia'rriaisl
ceremony from the cidiabitation pr^jveil. WrifA
y. Skiiiii~>; 17 C P. 317.
The patent from the crown issued in 1S48 1*
M. A. T., describing her as the wife ol R T,|
In 18.")3 she conveyed to L., not (leseribiiij; lier.j
self as a widow : — Itehl, that the ilescri|ifiiiii ia|
the patent was some evidence of her lieiiiu'iiinrJ
ricd when it issued ; but the ciinrt, lieiiig liittJ
draw inferences as a jury, iircsunied, iiM'av„iit|
of the validity of her deed made in Is.'i,'), tliitf
she was then S(de and conipeteiit tn niiivtvj
T/ii' A'(/iii/iiif(i/i Life ^1.1.111 raiicr t'u. v. /■t/''/«>MiJ
32 Q. 1!. ■2o:\.
See Xiilmi v. Xuhin, I Cliv. ('liaiiib. .'WS. ]
ICilMI ; ('<u-,- V. C(tn; 2 Chy. Clianil). 71, p. iii!»lj|
Hi-(i(ll( II V. JJri/i/li I/, 3 (,'liv. Chaiiil), :&. |i,|
l(J!t'.».
For other
" UowKi;.'
of proof of mariia;,'!.-
11. Al/TIDN' FOH HitKACll OK I'laiMISl
i 'I'lie court refused to arrest jiii'ijimiit oiij
vci'diet against executors fur a hieiieh ol iiriiuiif
j of marriage by testator, on tlie grmuul tliatsii|
an action could not lie against iierseiiai icpn
I seiitatives. /Jki-i/ v. Mi/i-r.'', Tay. 811.
To a count in a.ssumpsit fur a hreacli nf iinniiil
of marriage, ilcfendaiit pleaded a recissiui
f(U'e breach by the delcndaiit ami lilaiiinlj
guardi.an, Mith the pLiintiU's ciineurroin-v, |
till' being then an infant :lleM. Iiul I'lr'
contract could only be avoided hy tlieadnStj
% '•.■■■■■
; a written i'imtrai;t ii..t
i-iiun, l"> ' '• I'. I'l.'i.
ineil fdVii'iMHiuts ; 1. p„t
lut'cn<buit, iui iimiuirritil
iititV within :i U'lisdualilc
ut tlie ilfii'iiiliiiit, uu mi-
(J., jpuVHUiiilfil iikiintill t„
tin; imrimsu ui having ^
;(l lietwouu tliuni, aii.tti
iiKin-iugf, iin.l iiruti.'ii.lf.i
l:i\vt'ul, nml tlitvuhy \vr-
lint witli him :is hiswitV;
:., |)i-ftL'mkMl til \4iiiiitill'
, ixnil (Icsinuis ul iniunm'
tuiici's oansi'il hur tn suli.
inui'viagi; witli him; ;\iil
I \iur tliiit it \va»al;wi;;l.
,• iinUu.'uil hov til enluilit
II assault. MviiU'iifu Mas
lilaintilV liyik'cnilant. abl
pcarcil that (hjiuuilniit was \
lintilV WHS awaiv m' it. 1; '
it ile'V^liilant hail s;iiil W I
iititV tliat lie was ilivuivi-,!,
til s\)ito hci- chililrm; ai4
liil she wiinlil liavo nntliiiy
u was f rt'i' I )L-t'unilaiit wiu 1
lis wife was ^tiU livin-iitthi; I
lilaiiititV snlisoinn-iitlyutttj
,nil aftei'wavils tmik a li"iiiij ]
1 ami wife, anil rusiihil tlittel
lere was iiojiusitivei'viiiciitej
luiiuy :- llelil, iinmiiliiiiiiiir|
1 J., diss.) that thfru wiiuol
jury (111 any iif tlic fumits J
iptiiiii of innnivnci', tliat ile-f
l;u iniilty of a eimsjiivai;y,w»|
iiresuiii\itiiin of a niarmwl
(•oluiliitatiiin pvovud. 1Ii'mi',(|
•Ml.
the crown issued in l^S t*!
her as the wife nl H T,l
ImI to L., nut ileserihing li(i-j
lllelil, that the (lescrilitwui
Ic eviilenee of hev liuiiigiusH
int the eiinrt, lieingltitt^
... ju''yi presunieil, in favod
cr (Iceil niailo in lS.'i3,tliaM
and eonipetent to (.■"UVtyJ
,.l.s.s-»n»»cc t'li. V. Fti-ijiifiH
\ul,nu I C'l'V. t'l'^nuh. M]
I. ■> rhv Chanih. 71, l'- WJ
);,,":? chy. rhamii. ;ct,-^
„f jiriMif of niariia-i-
il! l',i;KA(li 111' ruiiMisE.
La to arrest im'gnuiit ml
|eutorsforahreachiillir*if
lator, outhegri.unilthat^ul
T.t lie a-ainst iiursmial k
is. .!/;/'•'>•> 'i'-'y- ^''•
Imniisitforalivcadii.il'n'm'l
lilant lileaileil a recsj-..." I
Vo ilelenilant ami I'l."'"?
IpkintitV'seimemie.Kv.l.'j
'infant: -ll^l'li '•"»•'
•be avoided by thoiKt'"'
166.)
ILUSHAXD AND WJFE.
ir,0G
infant, ami not of the guar
,,,, .,> ('. 1'. -.'.'iT.
liau. J'lirh v. Mn
'II-
Tho liefen.laut
,ltianltisentitle('
' • the
having iilhiueil juilgnient liy
in iiiitiLfation of damages, to
' iiult 1^ encineu, III llllLi^llLlllIl 111 iiiiiiiii^e.i, to
nrtS-exaniine the iilaintitl's witnesses respecting
1 , ,,«iieral had eharacter of tlie [ihiintitt'. Mc-
Wlare service.s weru rendered liy plaintilF to
■ ; |,,i,t in expectation that the defendant
1,1 marry her, hut there was no ecntraet of
hiriiii', and the plaintill' expivssly said that she
: jasnotto receive, and did not exiit'cl w.ages or
I ,,.!y .-Heidi tl'at on the defendant's refusal to
ra.invthe iilaintitl', no action would lie as upon
jiii'ijill^.d promise to pay the value of such scr-
\ vicvs ill money. Uuliiin^nn v. Sliisti-I, •J;U'. I'. 1 14.
i^ Wi-hjht V. SkiiiuiT, 17 (.'. P. ;U7 p.
1(J(J4.
I 111 M.iKKI.MiK Sr.TTI.EMK.NTS .V.NIi Ac IUKKMENTS
TiiKi'.r.ron.
I. Ante Xuiitinl.
\\\ execution creditor filed a liill against his
ilelitiir, the wile of the dclitor, and certain other
Ipersms; and it appeared that the dehtor on his
I Birri;i!;e, settled certain lands (the suhject of
[thcsiiit! ill trust, to the use fif the wife for life,
Ifitli pinvor of s.ale to the trustee, to he exer-
|(K.l with the husband's consent. The legal
letate wa« in one 1!., who had a primary charge
Ion till' premises. I'lider these circumstances, it
ileorecil that the plaintiff was entitled to
lieikiii R. ; that the wife's estate was exempt
Ifnmu'Vtry charge other than that of It. ; that of
kis clwr.'e she must either keep ihiwn the in-
'tewt 111' pav a proportionate share of tlie princi-
nil; tlKit .she was entitled to a provision out of
krliii' wtate ; that siibjeet to hi^r interest, the
iKiii'ii'ty, 1111 1!. heiu';paid, should be sild ; and
tiii|iiiry was di'ected as to other judgments,
iriltr til a ]irii|ier apiilication of the proceeds.
•uMhin V. O'Sfil, -1 ( 'hy. 'idS.
Qiwre, whether a letter written by a thii'd
irs'ii, anil signed by him, addressed to the iii-
iided wife, and delivered to her by the intend-
.Imsliaiul, with a knowledge on his jiart of its
mtiiits, eviileiiciug an agreement for a settle-
:iit liy him, would be a suttieient writing
ik tile statute of frauds signed by the agent
the party to lie charged. O'illi-.-tpic y. (Innvr,
Cliy. 'ijii.
Pniperty stood limited in trust for such pur-
"icsiir persons as the wife should appoint ; and
iWault iif .appointiuent, in trust for the wife
.1 kr heirs. The wife appointed part of her
itititiilier Imsliand in fee, and the other part
trust liir herself and children : Held, that
lisc appiiiiitinciits were authorized by the
iwrt, Imt it lieiiig suggested on aliid.avit that
^ey were made under the exercise of undue
Ineuee on the part of the husband, further en-
~"WM directed, l-'inlnit v. Cro.-is, 7 Chy. I'O.
IBy ,111 ante-nuptial settlement it was recited
^ttliiMiiteiideil wife was seized in fee of cer-
b laiiilj, 4e., and liad also a claim to other
fcperty liver wliieli .■^lie had not then an abso-
leodiitriil; and that it had been agreed that
Miiteniled husliand sluml.l enter into such
feiiiints, ic., concerning all the real and jier-
1 Mhtes as should be acquired fi'om tiu;e
105
to time by her during the coverture, as were
therein contained, concerning the lands of which
she was then seized, and which were thereby
conveyed to trustees. ,\nd the intended hus-
band covenanted to allow her during the cover-
ture to receive to her own use the rents and
profits of the lands, &c., so conveyed ; and also,
if he should become interested, in right of his
intended wife, in any real or personal estate
which should thercaftci- be given or liei|Ueatlied,
or descend to her, he would allow the same to
remain at her entire disiiosition, and that he
would join with her in ''conveying, assigning,
and assuring, ;ill such property as shall hereafter
descend to, or be given or beipieathed to her,
to the ti'ustees upon the same trusts, and sub-
ject to the same provisoes, itc., as are expressed
herein lelative to the lands, i.\:c. , hereinbefore
conveyed :" - Meld, that this bound the wife to
hring property afterwards given or devised to
her into settlenu'iit, but that it did not bind
lands of which she was th..n seised in reversion.
llUlijiit V. (iiri/iiiii', 7 <'hy. i)05.
Xy a clause in a niarri.agc settlement, it was
stiinilatcd that trustees should at their option,
during the lile of the intended husband, permit
him or the intended wife to take and use the
I'eiits, is.sues and prohts of the trust estate to
their own use ; and a subsequent clause pro-
vided that new trustees should be ap]iiiinteil in
certain contingencies. Upon a bill liled by the
wife to apiuiiiit a new trustee by reason of the
residence of one out of the jurisdiction :- Hehl,
that this trust was one of jiersonal conlidence,
and could not be executed by a trustee appointed
hy the cm.at. And the husband not havinjr
been heaiil of for upwards of four years, the
court appointed a new trustee, and directed him
to pay one half of the rents to the plaintifl', and
the other half to be invested for the benctit of
the husband. Tri/iji y. Mar/in, U Chy. 'JO.
By a marriage contract executed in I.,ower
Canada, the intended wife, in consideration of
certain provisions made therein for her separate
bclielit, agreed to renounce her dower in the
lands of her intended husband, either " I'u.ifoDt-
•ini. iinli.r, )»• -itiinilaliil,'' no mention being made
of lands in Upjier ( 'anada : — Held, atlirming the
judgment of the (,'ommon Pleas that this did not
]irecludc her from claiming dower o'lt of lands in
I'plier Canada held by her husband during her
coverture ; and that, notwithstanding the con-
tract which was entered into would form a tirst
charge on all the jiropcrty which the husband
held at the time of the cimtract, or which might
be afterw.U'ds acquired by him. N'auKoughnet,
(./. , di.ss. J<iii(ii.ii»i v. Fi.iliii; 2 K. & A. '24- ;
Fisl„r V. Jameson, P2 C. P. (idl.
A father, before his daughter's marriage (in
1S.'')7,) wrote a letter to her intended husband,
saying he would give her t'^jTitK) when she came
of age, and one fourth of his residuary estate at
hisdeath. In l.S.">!S, and before she came of age,
the father advanced money to the husband, for
which he took his note, but which ho charged
in his ledger to the joint account of the husbanil
and wife, and intended, if the same was not ro-
])aid til set off the amount against his daugh.ter'a
share of his estate ; -Held, in a suit by the wife
in the luisliand's lifetime for the administration
of the estate, that the executors had a right to set
off the advance against the wife's share ; -Held,
1GC7
}{L>BANI) AXD WIFE.
16G(J
that .sufli ii>,'lit Wiif uipI iill'i'ctiil liy tliu I'.ut tliat
till' fatlicr liy iiis will, iiiadi' altiT tiio iiiariia>.'i',
l)iit liL'fcii'c the aihaiu'c, liail (liirtteil that any
nilvaiit'L'M 111' shiiiihl make were to lit' (U'ducti'il
trmn tho C'2,.")(l(( ; the rcasnii of this in'iivisioii
a|i|iiariii>,' to l>u tliat thu tcstatcir cliil imt I'nii-
ti'iiiiilati; iiiakiii;:; any advaiiucH to an animint
t'Xi'L'u'din;; l!'.',.")(M) ; Hi'lil, also, that .sikIi right
was nut all'ci'ti'il liy the nut that nn i di'manil
lii'inj^ niailu on tlu' father fur the wIkiIu t''_',.')(MI,
when his ilaiiLthter eanie of age, he, in t'nie, re-
liu'tintly yielded to the demand, not iele,''.><inK,
however, (ir agreeing or inteniling to release,
liis right against the husliaiid fur his pn'vidus
iidvauoe. Tiirniiin v. Cluiriit, !•_' ('1^-. 107.
The insolvent had conveyed liy way of settle-
ment to his intended wife a lot of land on whieh
he had eonniienred a house, lint whieh was not
e(ini|ileted until after the marriage. On a liill
liled liy the assigme in insolveiiey, the eourt
deelared tiiat for so mueh of the Imilding as was
completed after the marriage the creditors liad a
claim on the property ; lint gave tlu! wife the
right Co elect whether she wonld lie p.iid the
value of her interest without the exiienilituie
after mari'iage, or pay to the assignee the am(.unt
of such exjienditnre ; and it suliseiiuently ap-
]ieaiiug tliat the hnsliand h;id created a mortgage
prior to the settlement, the wife was declared
entitled to have the value of the im[irovements
made after marriage aii[ilieil in discharge of the
mortgage in ]iriority to the claims of tlie credi-
tors. Jiichmni v. ISoiriiiiiii, 14 Chy. K'lli.
A parent was not jiermitted to recall a gift
■which, in view of the marriage of one of her
two son.s, she had made verbally to the two, of
certain arrears of an ,-innuity which had acrueil
from them w Idle she lived w ith them : the
attempt to recall the gift not having been made
until after marriage and death of the son. Per
Mowat and Strong, V. Ct"., ami Spnigge, ('.,
diss. Loii'j V. Liiiiij, 17 Chy. 'I'A ; l(i Chy. 23!).
2. Pi'^l Xd/i/ial.
.T. B. conveyed certain lands to trustees, to
hold to the use of himself for life, then to the
use of his wife for life, then to the use <if their
children, as he ami his wife .should aiipoint, and
in defaidt of any joint appointment as the sur-
vivor should apjioint, and in default of any a^i-
pointment, to the use of himself in fee, with a
proviso, that after the death of .1. M. and his
■wife, until the eldest child should come of age,
the trustees might apply .so much of the rents
and profits as should he necessary towards the
education of the children. A power of leasing
for a certain sum was given, with a restriction
that there should lie no conveyance made of the
reversion ; and lastly it was providi^d that .1. H.
and his wife, with the trustees, should have such
further and other jiowers for the disposition,
contnil and management of the property, ;is the
said .J. B. and his wife might at any time there-
after, liy deed, &c. , direct and aiipoint — (the
consideration for the settlement, as recited in
it, was the release by J. H. 's wife of her dower
in other lands) — .J. B. and wife first niortgaged
the land, and then eonveye<l the ecjuity of re-
demption to the assignee of the mortgage, from
whom the plaintifl' purchased : — Hehl, that such
conveyance was unauthorized by the settlement,
and th;it the plaiiitilV's title w.is li;ii|
V. Walllii-hliii ii ,tl., 14 <V. B. .'tl2.
A settlor liled a bill to .set aside a scttli.
on his wife and her heirs, allegiu',' fraiu
'"■iirl
lliont
,V til,.
Illlll, llllt
f ., , ''"^l'''ii'l. iv
taileil, anil it was :i,.,j„r,|.
tll''t tills
trustc'es ill inducing him t akellie scttlriii,.,.
The wife ilied, leaving no childieu Kv lii ' '
le.-iving children by a forme;
allegati.iiis ot the bill
ingly dismissed, but it was Ibli
settlement only Vesteil a life est.iti' in tin. ir
t<_es ; and .Seliibh', that the settlor rniil,| ,l,.,-,".',
the settlement by sale. ( 'nili'm-il \ \l,i,' ' ',
U L. .1. 187. Cliy. - ■ "■''''
The owner of re;d estate conveyed tliu saiiict,
trustei's for his daughter, H. S.' oik.. „t' v,],,,,''
was her husb;ind, to disimse tlicii(.f "in ,ii,i
manner as thi' said H. S., her heirs im,! as,!..,,,'
may at any time advise or ilirect, and tn nliik^.
sni'h leases, and further to m;ik" siidi ,„ii',,.v
aners in fee simjih' of the said lands, .Vc, a,, (i
said H. S.,^ her heirs, &c., may at any' thn,' a,'|vi!l
or dii-ect." The trustees <'reatcd a iiii,rt..a"fiii
whii'h K. S. joined:- Held, that tlie niinev.
anee to the trustees ellected a seltlcinuiit tu the
separate use of K. S. : that her joiiiiri;; j,, ,)|^.
mortgage was a sullicieiit direction tu tlio tiih-
tees : that the mortgagee was not Imuii.l tu sm
to the ap|ilicatiiin of the money, ainl that in
default of payment he was entitled tu foarh^c
I'ltia: V. .S/Kiii-u, 7 ( 'hy. 40(i.
iV. UlT.HATlON (IF .MAIililAOK oN Will's
I'HOPKHl'N.
1. Coiir<>!/(tiifi: of WI/i'm JtittI Kilute.
(a) Cirli/irati' nnil Knuiiiiifliiin.
[liifoir the :.'9fli ifm-ch, is',.!, n ».i;',';o/ ,,•„,„„„■
fotllil coiircf/ Iti'l' real iMnlv m hi 'ii/ilml ij;nil,,l\
juiii/li/ irilli licr Im.thiiml, tnt'l 'ic/'ik/ic/m/,/,,/ ,|j,(|
ccrti/iii/ ((.1 (/ii'i'fli'il.]
\liil the Statiilf of Oii'drid, .!): Virl. c, /,v, (/.
: "Tilt Marrici/ IViiiiinii'n llnil Kilnl,' Ai-I, Isi!
\ pds.'iiil J'.itli Mtu-cli, IS},!, till- iirtiiiiirliiliiiiifiihiiiill
I certijicdte air ilUjiiiiniil iritli fur tin fniiij-i .- ,(,,,
! .■iulijift to citrtiihi .i/icrijiiil i\ciijil!iiiii, i(//y.(/,,f a,/|J
niiiinna in irliirli llir liii.'<liiiiiil Imn juiniil n,-, i,.,r/J
niliil, uiifii-ifliftiliiilhi;/ till' iitiM iii-i- III, i}i' nmiil.i.M
ill, till I. II I mi lull lull ur Cfrlijicali.]
[It i.< cimmhrcil iiiiiii'ri-.'iKiir!/, t Inn fun, i., i\m
more tluiii refer .slmrtli/ to llie ■•leivnileii-iiniiittiki
file villiilili/ (;/' .iiirli ileiil.i liiix linii iincxtiim.il (
aecoiiiit of defeets in the eertijienti-.]
As to the elTect of the deed, in the alisiiiii't
a proper certilicate and acknowlcduiiicnt. ii|«
the estate either of the h'.isliaiid or wife. >«/>«
d. ir;/.so// <7 ((,/•. V. nv.«r//.s', ,5(1. s. -i^t-, i*».
Viinsirk'ler v. Fairiri'll, M. T. 4 \'iet., It. i
Dig. l.")2; Due d. Mrlhwiihlw Tirnl;!. ■> <!■
Kit ; MrKinnun V. Ariiulil, .'i Q. H, tlOl: /v
Ifihlile V. Ten Ki/cl; 7 Q. H. (iOO; -I'lV-./H
/,'eiliiur, 14 Q. B. 4.")tl ; J/o//;/// v. ^'/■,/iv,',4C.'
[402 ; MraHly. Fnc.ir, »'V. 1'. 404; iUU]
' Derinin et at. 22 Q. 15. ii4 ; .l/«'.v v. ''.i,-./, f
I Q. B. oOl ; Fitriiiihiir-iim v. .Mu-riiiv. 12 (.'. i
311 ; Doritn v. Rehl, 13 ('. 1'. .SIKS ; S.imf>'.» i
';.l/c.l /'//(»)•, 8 Chy. 72; //-v" v. Ii'iirli^\i
{380; llruhaiiiw Meneillii, Ki Chy. (ltd.
I Who might give the certilicate in \ma (A
I ada under 7 N'iet. c. 18, s. l(i, ^ciiDut i /'<j
1 V. Henderson, 7 Q. B. 182.
IfiGU
,itll! WilM liinl. ^'iiriirt
. 11. 'Mi.
I get m*iil«' n KcttU'iiiMit
, ;illi'i;iii'- ii'i""' ''V the
til uiaki' till' si'iilcmi-iit.
(I rliiMicii liy liiin, ln\l
InniR'V ln\>liimil. 'rii,..
lili'il, ami it wns ;ii'c;iir.l-
Wiis llfl.l, tlint thi*
V life cstnti' ill tln' tviis-
i till.' settlor i-nuliatisit
Cl-djl'"!''! V. .!/■/(■. I.. I;lf,,
ato I'onvi^ycil tlif siiiin'tM
tor, K. S,, iiiif III' Vilinin
lis\"i.-<i' thcri'iif "\i\ sui.li
S., lior lii'irs ;iiiil MiV^iM,
f. or ilivfi't, ami t" wake
lur to liiiiki' siu'li luiivty
tlu; siiiil laiiil:*, lU'., iistiii;
u. , may :it any tiim.' iulvisc
;ei'S (■ri.'ati'il :i umrt^aw in
\\M, that tliu i"mty
IVuctoil a srllUuiflUt.ptln;
; tliat lu'r iiiiuini; in the
iont lUriTtiiiu tn tlu' tnis-
iiifoo was nut liimuil til ste j
f'^tUu niom\v, ami that in
10 vas lUtitlcil til I'liici'hM.
ly. 40ti,
,K M.MiuiAi.r. HN Win:'-
OlM-.UlV.
(,/■ H'i/V'.-i Jliiil I'UMe.
ir (iiiil E.iiiiiiiiictinii-
r,irrh, is:-!," ,,'n-nnl n-'mm]
■Mak
hfml, (""
I'l.cl-iiijii-li'l'.l"! "ni\
' i hi'iirii'
,;-; i'Jw.
;n, I).,
\!S.
,; till- ,(i'/,-»ii"''<''|/i"t«'"'"'|
/ 'ici//( fur III'- fill "f: "^
(// ;«i.</ OiilJ
'liil.-ihiiiiil liiii'.l"'""
llir ,ih.^ilii-iiij, i>i'"ii'J"
nillfr )l"Hl
\ir i:ii
liliniti
[ihl III till' .w'>
thii-if'>f>\ '" ;'i
,h<;U /«'••< '"'■" 7"'
,</|iillf'(
I //it' ('('I'
if tlr
ilei'il, ill tlu'iilwiKe«
,il ackiiii"'
ImlmuUlt. lilKi
ll). >.
ltheUusliai..b'rNVite.^>i^.
] ir, ...V. i'-<
,■!!. V.
\l,-lh,iii
'l'. 4 Vict, I'l. !cl
7(/ V. 7'"';:/;/
,l/'(/i
,/./, ."> tj
Q.
B. (iO-t : i'"- i
]\. tiOO; -I''
kt) • Miitl'iiti V
^ , r. i-
41.
4t)4 ; .V.i«-
111 V.
,1 iiinj V
.U<)-i'(iic.
r.iiV.
12 C,
/ 13 ('.v.:w\;'>
I III/'*
7-2 ; //"/
yjMiivi, s lb
I'lK'lU'.l
Itlie t-'cr
18, ».
111. IS'2
/(», Hi I 'iiy. ''*''■
iilie'ivte m
Hi. See
l/i\ni-
i)« a. /''I
1069
IirSI'.ANI) AN1» WlKi;.
lOTO
Willi nil:
, (•,„■./, -M
'lit f.'ivt' it Ik'iv
ill IS'.
I no 1/
Ptiiiiisito.-i <it' extiL'utioii iif ilccil in livlainl ln'-
-' till! ••'• S- '• ' '• ^- "*•"*■ ^^'^ fill III. fin I- V.
ll'C, I'
flirt.
iVuiI'll '■' '"• •
WJR'rt' tlif ftntitifatc fiiilnr.-'i'il mi a ilcfil, fx-
iiti'il ill Miiini-'Si>t.i. wa.s yivfii liy a piTsini
V.^.^jln;,! as the jiiil,i,'(' of till' District Court in
•lilt st:itf, ami uihIlt tlu- seal of tlu: court, liut
it w.is imt statcil in tlic curtilicatc (which wouM
lit'fii cminyli,) or otlicrwisi; |irovcil, that
hav.
r.l
.r.hti'iii't was a court ot rcco
;i-llt. Mi-<''iiililli"' '^'. lliilil/irr,
He
Ilisiill
•4 ID.
( 'dill ml I'ciitl i
(;. MrX.illij V. :
\stiitli« valiility i>f such certificates in iioiiit
.rlturiii. •'^'•'c .Inrhmi v. HdIh rl-imi, 4 < '. V. -'7- ;
'l/„„(. V l-'iii-Hmin; 17 *'. I'. 41 ; Shii/iur v.
I ,,„„/,, SC. I'. l;W, 4.-. I ; Mr.\,i/I^y. Chiirrli,
•;:(,I.'B. 10.']; M'liV'iii ^- Xiili'im-in, i~, (}. 15.
''■!0- lli-iiiit V. Tmi/iir, L'S (,). ]!. "j;)! ; /'iiIi'iiimiii
;: fi„,,.., i;{ c'hy. ';{ss.
,\j to ilffects cured liy tile 2'_' \'ict. e. ,S").
«i.'t .l/i/;i/' V. I'll i-l I II I III-, 17 ('. I'. 41
])•,,„(■ i/rnH-'i/" V. .V//"''/', i« *'. I'.
Deffct fuivil hy - \'ict
Chmh, '21 Q. H. 10;i
Xs to what is an execution liy the niarricil
Kumau " iiiiiitlv with her hiisliaml." See lliii-ii:t
V i;,..|,Ai«i, 24 (,>. H. 44!t ; Mmik- w Fin-rni'f i\
l',i'. 1'. 41.
The cei'tilic.'itc anil examination were iiuiieces-
i i;irv ill the cuiiveyauce of a leaseholil interest,
1 «&htla'liii''haml alone could disjiose of. .Smu/i-
\m\:Mi'Ai'tliiii; « (.'hy. 7-*, in aiipeal.
Tliowiirils, "duly exaniiiii;il," instead of ex-
! iiiiiKil ''apart from her luisliand :'" -llehl, in-
i ;'.',&ifiit. .Slaijiii'i-y. Aiiji/cijiikySC P. \'Xi, 4,")l.
" Surrender and yield up :" — ^Held, e(|uivalent
I tiitliestatnterv phrase "depart with." .V/z/i/ivno
Iv.i/.iWwiiii, 27 (). H. 4()0.
Hilil, immaterial that tlie certilicate was not
IfflJiirsi'tl on the deed, Imt written in the niai-gin
liin tilt' face <if it : that the venue siitliciently
|<lie«il where the examination took place ; and
|lbtaiiailiiiissiiiii which was made of the justices"
[lutli'iiity must he taken to mean their authority
|:b jiistiijt'3 fur that district. //>.
Where some evidence was yiven to shew that
like ilei'il hail heen acknowledged before ;i jnd<;e
Itiitliisfiiurt ;— Held, that the jury were riglitly
pirectiil, if they should liiid that the <leed had
Ml sii aekiiiiwledged, to presume that it was
Jiloiie within the proper time. Tql'uii,/ v. J/r-
I'liiii'tti', 13 Q. B. lol).
Tilt certilieatc eudorstMl on a deed liuaring date
pStliMay. 182(), was that at the court of j,'eii-
li|iiarter fiessiuus, holdcn at, itc, "on'l'ues-
the llith day of May, 18'2(), jiersonally
teareil, &e,," in the nsual form :-- Held, suf-
Jfltiit, fur it sliimld lie assumed that the Hith
i tl'j lirst day of the sessions, which might
'Ve lieeu t'ontinued and the curtiticato signed
lfttrtlieoxeeiitii)U of the deed. Alli.-ioii v. Jfi-d-
*K 14 Q, B. 4,')!).
I ^Vith rt'Ljanl to a deed thirty years old— Held,
litiiiiithe certificate it was to he presumed,
™ I'aiit', that everything was done liy the
X, who mailo the same, to justify liiui in
certifying what he )irofcsscil to certify. ''.■•.tcc
v. \'i iiiiiii, 14 ( '. I'. .■i7.'l, followed ill .l/oH/l' V,
Fiirlliiij.r, 17 C. 1". 41.
.\s the liainesof the t»o witnesses to the deed
Were the same as those of the justices, ami the
handwriting siniil.ir, and the date of the deed
and certilicate the same: Held, that it might
he inferred that the execution took place in their
presence. .V/'/z/yMo/i v. Ilnrliiinii, 27 *,•. 1>. 4(!0.
Held, that as the judge could not have certi-
lied that the deed was executed ill the )ireselici!
of the witnesses who suliscrilied it without lieiiig
himself present, the inference was that the cer-
tilicate w.is executi'd ill his presence. 'J'ln ('inn-
nil l-r'iill liilllh III' Cililiiilii V. Siililll 1 1 III., l.S ( '. 1'.
214.
'{"lie solicitor of the husliand, liciiig city recor-
der, was held not to lie disinuililied to take, as a
magistrate, the exaiiiiiiati.iii of amarried woman
for the couvt^yance of her land. Spragge, ( '.,
tluliitante. /'iiiiiiiiH.i V. Fruii r, 17 Chv. 2(i7 ;
lliChy. !I7.
Magistrates interested in the transactioii are
not competent to take the examination of a mar-
ried woman for the conveyance of her land.
The solicitor of the liusliaiid is not as such dis-
iptalilied. / li.
Where, after (he dt:ecase of one of the justices
liy whom an examination was taken, the other,
an old man of seventy-three, gave evidence that
he did not recollect and diil not lielieve that the
wife was examined as the certificate stated, the
court gave credit to the certilicate notuithstan-
ding the evidence. /''.
A mortgage at the date of its execution, the
same having lieen registered, was ineU'ectual to
Jiass the wife's estate, tiy reason of her not hav-
ing lieeii examined apart from her husliaiid : and
sulisc((Ueiitly such mortgage was re-executetl liy
the husliand and wife, and the fact of the wife
having licen duly examined endorsed thereon,
so that the deed was made eU'ectiial to pas.s
her estate, lint no re-registration took jilace : —
Held, that the registration was sutlicient under
the statute; liut, that the examination of the
wife upon the re-execution of the mortgage
could not relate hack to the first execution
thereof, so asthereliy to gain for it priority over
an instrument which had liceii suliseipieiitly
executed liy the husband and wife, and duly
registered, iiiiillir v. Jlii/lun, 14 fhy. (i8(!.
(c) Dvr'i-iiiiii.i iiiii/i r Ji: \'!ii. c. IS.
• Ap]^lieations under .'{fi ^'ict. c. bS, s. 4, ()., for
I orders allowing married women to execute con-
' veyances without their husbands being also
)iarties, should be made to a jmlge in Chambers,
not to the referee. YiV Xolun, (i 1*. It. 115.—
i Cliy. Cliamb.-- Spragge.
A married woman is not entitled by the ^Slar-
ried Woman's J{eal Hstate Act, 187.'^, .Si! \"ict. o.
18, ()., to convey land to her husband. 'J'he
reiiuirement that the Husband shall be a Jiarty
' to and execute such deed, means that he must
be a grantor, (hjih-n v. McAiilinr, 3(1 Q. I). 24(J.
I See Davi.'i.ioii v. ^(nji', 20 Cliy. 11.").
Qua're, as to the etVect upon sees. 2, .t, and 4
of C. S. v. V. c. 8r>, of the repeal, by 3(i \'ict. o.
IS, of 34 A'ict. c. 24, which repealed them. J h.
ri!
mv
1G71
HIJSJiAND AND WIFK.
1';::
ii\} nth, r Cii^fM.
A mort^.'iuc niniK'il iiml hchIciI )>y tin,' hiisliaiiil,
l)Ut ill wliiili till' w ill' wiiH till' Diily ;,'iiuitiii;j
piirtv : — Mi'lil, \vlitp|l\- iiiii|M'rativf. /Auiir v.
/iiail, 15 fh\. L'44; '/>.-. il. /{r,i'// v. //o././hn,
•JO. 8. '-M:t.
St'iiililf, tliiit can' slidiild lie tiikcii tli.it till-
(k'fil mIkiiiIiI cxiiiHsMly iiiiivcy tlif ilitfiot nt the
liusliaiiil ; fur it' tlic ilufil iiiciviy shew that ho
joiiiH fur ciiiifdniilty, and to niiiiiifcst his axsuiit
ti) iii« uiff l>artiii;«; with the estate, liis interest
will lint pass. /)iii (1. Mi/)(iiiiil(/ y, 'I'lrUiij il
III, .") t^. H. I(i7.
(^hiiere, wliethei' a ileeil l>y a liiislpaml alniic iif
his wife's laml will oiierate as an eU'eetiial trans-
fer of the liiislianil H marital ii','lifs therein.
ir.///;.s V. iin,-ii,ii, 5 ( 'hy. ;«.•)•_'.
liuhl, that it will. AHuu v. I.,
(). 15. !».
tleil to a ileeree ngainst the hiiHliaij<
vuyiiiieo. A'ldiinw l.'iiiiii'iK, 'i'H\\\.
•_'. <llh' r Ciisi.-i l!,hiliii;l In II
ih'- Hull /;,,/„
Fuller the wtatntes iiasseil to iviuimIv tin .,.■.
>lie survey in llmlirook, I Will IV
X, 7 U ill. IV. e. .">!l, an inliahitant livin- i,, (|'„
front eoni'essioii eaniiot he iliH|iiisessc.'i| li\',,j. ,
ineiit afti'i' a [irior suliinission to arliitriti,,,, '],,
till,' hiisliaiiil of a niarrieil woinaii ownini; iaii<l
the .■iilj.aeelit townshi|.of Saltllei t, tli,.*!,!,,,!..,!!!!'
not liein;,' the owner of the laiiil, ti, wIkihi ..ji',,,,''
these aets ajiply. Dnr il. (.'rdtil-M \, '/',„ /■„, )
/)iir il. t'riiiiks V. Ciili/ir, 7 (). n. "isj. ' '
< »n an ai)|ili(;ati(>ii a.ijaiust a railway n,iiii.,,n
toeoin|»l tiiein to arliitrate a.s to ei'rtuin Iai!
taken, it apiieareil tiiat the laml liiliMin,i] j,/,
/(/', I") j niarrieil woman, and that the eiiiiiii.unv I, ,|
I taken iiossessioii of it upon
Held, that a, deed executed by a man and hi.s
■wife (she owning the estate) under ('. S. I'. ( '.
c. S."), while the wife was under the age of '21,
was i^ood and valiil, inde|ieiidently of the statute,
to pass tlie liuslianii's interest in the land,
although not siillieieiit to liar the wife's. Ihiran
V. Jhiii, i:u'. I'. -MX
M. conveyed tlu' land in ijuestion to .r., the
wife of II., Iv. alone ixeeiited a lease to defen-
dant, and died iluriii;^ the term liei'ore his w ite :
Held, that on li.'s death the term ex|)ired, and
that the plaiutill', elainiin;,' under a conveyance
from 1\. and his wife, eonhl eject defendant
without notice to ipiit or demand of possession.
Biini-iv. MrAilaii,, L'4 g. I!. 44'.>.
The 44th sec. of tiie ('. ,S. U. ( '. c. S.'t, "An
act respectinj,' tlie assurance of Kstates Tail,"
ajiplies only to cases arising under that statute,
and does not aiithori/e tlie court in every case
where a husliand is living apart from his wife,
to dispense with his concurrence in ft eonvevance
Ly her. /» /v fullniruw MrEIn,;!, :W (,». J!. !),").
Semlile, that a married woman ui.ay execute a
deed without her hiisliaud joining, during the
iaipri.sonmentof the liusliand as a felon. ( 'ruckir
d uj: v. .Soiri/iii it til., .'W (.}. H. .S!I7.
A niarned woman owning land, she and her
husliand contracted for the sale thereof, Imt the
deed executed to the purchaser was a eonvcy-
iince by the hu.sliaiid only, with a har of dower
liy the wife. 'I'lie error was not discovered uii;
til after the pro]ierty had lieeii disiiosed of in
parcels and passed into other hands. The origi-
nal owner and her liusliind then executed for a
nominal cousiileratioii a deed conveying the
property alisnlutcly to one of the (larties inter-
ested, liiit under the liidief that the only elfect
of such second deed was to remove the defect in
the lirst deed, and to eoiilirni the title of all
jiarties cl\iniing thereunder. On :x liill hy one
of these p:i,rties and the grantor (the hushand
lieing dead) \'ice-(.'hanc'ellor Ksten decreed the
grantee in the second deed lo he a trustee for
all the parties interested ; and this decree, on
appeal, wasatiirmeil with costs, (iraci v. Mac-
Bcnnott, 13 Chy. •J47.
The wife's conveyance of lier equitalile estate
is valid without the hiisli.ind joining in the con-
veyance ; and the hnshiiid having tlie legal title
vested iu liiui, the wife's vendee was liekl euti-
';/, 11/."
"1 'll'r,il|n|,||||.||.
with her hnsliainl, which would have ii,,.ii
answer to the applii:ation if ji^. had ]|^^.^^ ,j '
owner. An arhitration was ordereil. /„ ,,
/!( Ilsnii el K.r. lllll/ l/li- I'lifl l/ii/ii, l/uiil^i
/Uiii; rifii n. II'. r,,., -Jii (,». i;. .vjv,
A. died in possession intestate in .lulv, |s.-,|
leaving his widow, and tlic plaiiitill' lii's il,|,,'
.son. The iilaintitl', on the loth (ictnlifr, |,Vi|
by deed poll, in consideration of L'.lo, ''ivmisni
released, .•mil forever i|Uit-elaiiiieil " the iainl, n
fee siinjile, to his inothci', who was still liv'iii
on the ])lace. defendants claiiiitil iiiuler inr;--
lleld, that the deed could take ctieet asa rujia,,,.
only: that the widow, being a ten.-nit at .«iillti.
ance, had no estate upon which it ceiiM ii|iii;it,.:
and that it therefore jiassed ncitliiiii,'. lia^aitv
.1,, dissenting, on the ground that »h,itn',i
words would amount to u grant ol an iaeiinii.ivai
hereditament before the .statute, wdiilil, liwii-
tue thereof, operate on corporeal hci'edit.uiitiit-: I
and ipnere, wliether the estate of the wiiji.wwis
not sulhcieiit for the deed to take elKit a^J
release. Arrv v. Liriiiiisloiii' il nl., I'll (j. j{, '.w
The title acipiired by a purchaser at slieriU'si
sale of the husband's interest in \\\^ wife's l:;i:i:-.
is sullicieiit for a release from the husKaiiii aiiiil
wife to operate upon. Bcdtl'ti: \. J/n/i.,,,. |{J
( 'hy. ()S().
Though a man has been in ]Mis.se.s»i(iii firi'l)!
vears of land granted to his wile fur litv, !,e
does not thereby aci|uire an ahsi.liite titk, hi
he i.s merely seised w itli her, hy (iiirnitimi nfl
law, of her estate therein, and any grant iiuili
by him will only pass an estate fcr hi.smviil
if his wife should so long live, yulini \: {'■>.
lo O. V. iit).").
A grant to a married woman of a lifeostatl
in land, does not rei]iiire tiic assent nl iitrliiia
bainl to pass the title to her: .-unl iiiik>-li
reinidiate it in some way, hotii will lie sdzcl
her right. //(.
The elfect of (". S. V. C. c. Sl', seo. 10, i>
create a tenancy in coiiini(in only in cases wliel
before the 1st July, KSIU, there wnuM haw Wd
a joint tenancy: — Held, therefniv. that a tn|
veyance of land to a husband and wite in lirn
not make them tenants in cinmiMii ; Imt i'
they held, as before the statute, hy entiretiij
and" that on the liusliand's death the wile ti)(
the whole estate. In re Slun-ir it. nL v. IM%
«/., 31 t^. B. 1)03.
I,
K)
the liwslauil fur ni.m,
„;x, ■j^icliv.W.
^, 11 ii;'.' !:■'<! Km.
Hfil ti> ri'iii'ilv 'III 1 rv-
inUnM.k, I Will, IV. ,■
iiih:vliit:iiit liviiij; ill t!i.'
If lllrtpllSl':<M'll liy t'icTt-
is!-ioi\ tn iirliitritimi Iv
1 NS(llli;ill lAVlUlly lllllilll;
,i SllUtlrrt, tlir lnbl;ili.'i
tin' lilllil. t'l wllnlll ;il..ui.
, (I. (,'/'<lo/,'< V. T'li fyk.
gainst II vailwiiy cinniKiny
Ui-ali' iX!t til I'lii'tiiiii laii.l
t the lauil lii'lmijiiil 1<:k
that tlio i-'iiiiUKiiiy Iwil
it U\H>11 !lll llVnill;;tMlli'llt
lirh wciulil liiivo Ik'1'11 m\
itinii it' lit' luiil litiu the
on Wil^^ lll'illTl'il. Ill f
I'lll-t llllj" . I.lllll'llltl, "«''
o<l il IV .VJ'.t.
,11 intiistiitf ill .liily, ISM.
ii.l tlu: |ihiliitill liis lUis;
,11 tliu l.'itli tHtnl.L'i', ISAl,
liluratioli 111 t^'-i". "I'diiisoil,
nuit-i'laiuit'il" lliu Uli'l, ill
otlicf, who \v;is still liviiu
nlauts (.'laiiiifil umli'i' lu'i".-
cdiilil talu' t'tVuct as ;ni'la'e ]
\)L'iii;
a ti'uaiit ;\t suliti-
UMlll Nvhi.'liit oiiiWoiiMiitcl
epassL'il iKithiim. Hiigurty,
tlio gnmiiil that wliiittvcr I
It to ii'^i-aiit 'if an iuoirimMl I
the statiiti', woulil, livvii.
,iictii'l>iireiil Uuri.'4it,iuidit>;
i. tho estate (if tliiMvi.l.w was!
lie .loe.l to taUi' ulUrt IM
,v a imi-i'Uasor :\t slk'iiff's j
tsii'itca'stiiiliw"ile'slui;i.i,l
■K'-vso from the liuslniinl a"' 1
^l„m. «'""" ^- •""'' '**
lias liot'U iniiiissfssidiil.'r'^
U.mI to his wile Inr liK'. I"
an ahsnlute titlf, I"!
1G73
1,1 \vith her, hy "l"'™"""
Vherein,in,aauyp.it«J
Lsau estate tor his lAUi;'^
Ion- live. .N"M«v,/.,
L,,.ii,,l vvoinau of «>''■'•■ 'f^
^ are the assent iilWvH
title to her ; ami mil^-
|o Svy, lioth will lie .*il
coiunioii only i" >^'';;; "J
1S;U, there woiiMlw^^'"^
:iU\ thelvfolv,tbt.^
,i.usi,an,la.,.l^v.^■";-;
,..>nts ill eoniniiiii ; l« ""
HUSBAND .\Ni> wni:.
I'mI
The ri'i'1'1
lit fif rent l>y tlic wife, with the Ir
HI' fur the t.'iO, iiiiiH
t 1)1
iiIiT the lease in
lit, fnilM a tenant ot her estate, niter aetioii nl eoN I'lriiit
that
,. ,.\[iirati'
arte year.
;tin.
Ill of a term, ereates a teiianey from to the deniine to Ill's wife, h
laviiii,' assi
llteil
mill
not sue lor
,/(y/i/i.i/(/H it III. V. Ml I.I tltiii, 'Jl ('. 1 the eonsiileiatioii nioni'v iiaiil for the lease, either
- I''
I iiis iMonvy IcHit or hh iiioiiey hail ami
•il ti;
UK llHe.
//,,//,.
11/ V. /siiiiijin
/, I C. I'. '-'l'.'.
St'lll
f'l
raiiiiiiji
jlio cull
j. Wii'i'm EiinUii til II Si Nil III! Ill .
hie, wifi' eiititleil to a lirovisioii out of hi^r
taiK'e, the hiisliainl not main-
lutahle iiilien
her, am
I his
assij,'iiee seekini; the an
I of
rt to make her interest availaiiK
(/;//.
I)ufeinlaiit ilelivereil to the deeeascil wife of
the )ilaintill' a note in iniynicnt of a h',i,'aey In
i|ileatlieil to her, ,'uiil she
liefiir
e iiiyineiit ot
. V. (fCi'l I ' !
.•tChy.
4. \\"ifi'i S.jii
m.
Il, F.^lnli
the note: llelil, that a lile.i, that the wife a.s
liayeo of the note hail ilieil liefore tlu' |ilaintitt"
note into iiiissession,
,il reillie.'il the le''aev
ami that he had not ■nliiiinistertMl to his wife'n
estate, was a
«"
III answer to the liuslii
iletion. Iti)h'iiisiiii \. ('/•/■/'/■■•■, li < '. IMVSI.
\tt'st:itiir hiiviiiK '"'iliieathed CoOO jier aiinuiii, 'I'lie only iiroofof the reeeijit of eert.'iin moneys
ihle iiiit of the rents of his leal and |iersonal \ liy the wife diiriiii.; the lift' of her hilsliand, was
linately, for the sii]i|iort of his ' her own evideiiee, Imt she also stated that the
'"'III,
let' aiinmii,
pv
t.ite iiiuiseriii .
.1 ,«■ anil family, (the widow having lieeome , money had lieeli yiveii to her liy hi
■||
le court
M'l'U
trix,) her seiiarat;' ereditors we
..•Id
ilisideied her entitled to retain tl
amoiint, am
lul til have her share of the annnily severed ; that it formed no p.'irt of the testator's |iersoiial
11,1 attache
1 to satisfy their ilehts, siilijeut, I estate. Mf/Sil
Hi
, (W '
:i:;v
liiiWi'Vi'r,
to the liriorelaims of theest.'ite aj,'aili.st
Wr as executrix,
to I
)e rei'oii]iei
I for 1 1
readies o
A married woman jointly with her husliand
trust am I
till
ihtK'isiinl'roe
ami, .Semlile, that where 1
.'ss whereliy siieli a fund eaii lie i
coiiveyed her estate
jiany, w
liieli at the same tiiin.
Iiitely to a trading eoin-
oveiiauted to
:hcil, this eoiirt has i)o«i
der -Zl Viet,
th
•" j. 'JSS, to apiil.N' a remedy ; as in this ea«e liy
fi|iiiti
.Ultt'lM \''
alilc attachliie
Miilllii
lit. //"/(/,• III' l!rii;</i Xiiiili
re-eoiivey ii|ioii eertain eonditinns, wliieh they
aci'ordiii;,dy ilid several years afterwards ; Imt
while the estate was vested in the eolniiany, and
A pnri'l
ise hv a wi
8C
fe fn
her II
liefore tlr
Jiassii
if th
act tor
tin
udief of
married women.
tlr
••' .1
linst the hu.sliand
udj,'iiu'nt was reeovered
I ('"Mlllc
.estate, was
ration Melii,ii
liaiil out of her selianite j Meld, th.'it tl
I Illy rejiistered
Held, to he maiiitainahle
ist the husliand
d
stratiou lioiind th
liis interest lieini:
state ot
italde,
iTOiiturs I
imsKaiia,
if who
ilelitsshe had no iiotiee. The was not alt'ta'ted liy
le I
if his interest under
ifter the imrehase, exjii
the pi'oiierty
iled
money
an exeeution
at li
at tl
le suit of other ere
ili-
Ht
linmiiiniviuy tlie ..-,,, , .
a iiiih'iiH'iit creditor ot the husliand to olitain
the lieiielit of sueh expenditure, that the wife
nastlititk'il to shew that the delit for wliieh the
i'j.l incut was reeovered had lieeii s.itislied liefore
aotiiui liruiight. I /ill v. Tliniiip^-'y.-ii, 1 7 < 'hy . 44").
A liii,<haiiil and wife were respeetively resi-
ilii.irv iltvisees under a will, and they together
rtli the other residuary devisees united in a
coiivc'vanci; iiurporting to transfer the pmiicrty
til till' wife anil her heirs, so that none of the
iitliiT parties sill luM have any estate right, title,
or iiitert'st therein :- Held, that the eonveyanee
nasiiiinicrative at law so far as it assumed to
pass the interest of the grantee's liusliand, liut
ikatit hiiil the etl'eet of eonstituting the lius-
Ikul a trustee of the legal estate in favour of the
kiit", that ill eipiity tlie wife had an alisolute
I suit liy tors. Firrii- v. A''"//, '.I <'hy. L'li'J.
After the death of a man and his wife, a sum
of money was found deimsited in a hank at the
eledit of the wife, wliieh had Keen so ilopnsited
in the lifetime of the hiisli.inil, Imt it did not
appear hy whom. The wife survived the lius-
li.'ind ; and after her death, a iiiiestiou being
iiiiide towlio.se ('state the fiiml liehnigeil ; Held,
that it lieloiiged to the estate of the wife. /■'' /'-
/'('s V. Jltiiiilflnii, '.) ('hy. 3()2
A mortgage had been created liy a married
woman upon her estate ; after her death, a suit
praying a sale of the mortgaged piemises was
lirought against her husliand ;inil lier ehildreii ;
and the court, in direeting a sale of the mortgage
property, refused to in.'ike the estate of the
ehildreu liable to arrears of interest for more
than six years ; but, djreeted jiayment to the
(Ute in the whole property to her sejiar.ite use, ' „„„.tg;igi;u nut of any excess after payment of
111 hail therefore the same power of devising it i p|.i,n.jp:il nioiiey, costs, and six years'" iuti'rest
ifsheliail heeii a single woman. I)iirh<.'<ijn v. ,,f so much of his lialanee as wonhl represent the
\ husband's interest as tenant by the curtesy in
p. I()(i8 ; such balance. Tuiilnr w //urijrun , l!l Chy. •_'7I.
(iitri.
ii;i(, '20 1'liy. 11').
Ste Phiri- V. S/iturii, 7 I'hy. 40(),
Tiyiio'v. Jijlr.inii, 37 Q. B. i")")!, p. 1
5. llnthnniVs fiili-ri'<t.
(a) Oiiwriillji.
V. (i>IAH.\NTlNK.
extends oiilv to the mausion or
Qnarantin
dwellingdiouse in which the widow is entitled
. : to reside eoncnrrently with the heir
ithe tlth September, 1842, the wiie of the Cnllai/liiiu v. CiUinjhim, 1 (_'. J'. ;Ua
laiiititl, with, his assent, lu consideration of
paiil. heiiig the proceeds of the sale of her
1 lamb, ohtaiiied from defendant a lease of
krtaiu premises, to hold to her own use during
Vtlife, ilefeiidant covenanting at the expiration
ji tlie leise to jiay her, her heirs or assigns, .t^O :
pM, that the pLiintitf 's remedy, if entitled to suHieient to charge hiin with necessaries, al-
Dn
W. Hi'sii.vxn'.s Li.\niT.irif:s.
1. Fill' llV/'t'.s Xii.'i-<iitr!i .1.
A recognition hy a party that A. is his wife is
;!• ■■
i I
ir)7:»
irrsnAND .wn wikr.
If-?!!
tliiiiiKli tlii'Y ilii not L'i>hiiliit, hivviiiK in t'lU't muu-
nnitt!il, uiiil iiltliixi^li xlif iiiivv iii>t stricti jiiriit liu
liiit witt. //itirli'ii V. Jfiiiii, \'i\y. .'{H.'i.
A IhihIhiihI li.ivih},' nivoi nnHcc fn tlic jiliiiiitiir
tllilt lir Wdlllil nut lie riMlMiMilili' tor ycMpdw till-
imhIiiiI tci Ilii «itV, will! Iiiiil witliilniwn hrrsi'lf
fi'iini Ills |>i'iiti'i:tii>ii, wrn* liild nut li.ilili' t'lir ^ihhIm
t'ninishcil tcp licr liy the |iliiintill' witlmnt liis
knowliMlyc iil'tcr sill' Ii.'kI ictnini'il tn liini ii;;iiin.
H'l'iinr V. /.iiirriiirt, I'.. 'I'. ■_' Nii.t.
Wlicrt! tlifM' linH lircii u Ndlnntiiiy Hipiiriitiiin
witlidMt tin; uilV li.MiiiL,' iin ailiiiinitc sn|p|Hii't,
hln; is cntitli'il tu [ilt'il^c her linslLinil's < nilit lor
noi;ti»surit!8. Tuil v. Liinlndii il <il., I'-' • '. I'. 4 II.
In an in'ti'in liya tnnlt'sniun auiiinst a linsliind
fur tlio valni' nt' kcmpiU Kli|i|iliril t<> Ills wife, whom
In- has witJKiMt I'un.sf tnincil nut ol' liis Inni-tc,
till' i|in'!<tiiin is, wlntlnr tin' aitirlcs tninirtlnil
wt^ic ii;iliy nccfSNarii's, anil ti> ilis|niive this lir-
fi'ndant may siu'W tiiat sin' liad lioi'ii nlii'aily
(jiilililiLiI liv iitiiers willi similar ),'iiiiil,-(. Arclii
l„il,l V. /■•////(//, \\i i). 15. .VJ.'i.
In an autiim a;^'ainst a iiiisliand fiir;;ii(iils snp-
plied til \\\x wilV, it a|)]Mar(il tiiat n|i tn I'cli
rnary, iHTl.', when the linshand rtji'i'ivt'd an
ni'piiintnn'nt wnrtli ."^l, '_'(•(• a yoar, lie hail lioon
in undparrassi'd cirriimstani'i's ami owed dchts
nninimtih;,' to .S'MIOO. In May, 1870, Ids \\'\U-
l)i'in^' in dolicnti' lii'altii wi'iit to li\(' with iii'r
father at jliantlord, and niutiiuiid to resiili' with
luni tor two yeais, \\ itli the I'xi't'iitinn ot' an oi'.
ca.'ioiial visit to her hnsliand, who live'd in .St.
Catharines, diirin;,' which time the lather ex-
jieuded on her and her son upwards of .'><I,()(M).
In .May, I,s7'_', when visiting litr hnsliand. she
eompiained tortile lirst timi; ot wantin;,' I'lothes;
the liusliand appearin.^' to have .always turnished
her with nnmey and I'lothi's wlieneNer shi' asked
for theui. and also to have paid for their son's
board and elothes. The liusliand then i,'ave her
what artieles she rei|iiiri.'il and what money he
|iossesseil, at the same time e\|iressly telling her
not to ineiir any delits in Hrantford. In the
following montli, however, she iiieurred tliedeht
now sued fill-, eoiisisting of silks, v.ilnalile laees,
mid shawls, iiiiiounting to the hnsliaiid's saJary
fill' a ijinirter ; the jilaintitr at the time lieiiiy
fidly aware that slie was not living w ith her lius-
liand, hut with her lather: Held, that tlu' hus-
band was not lialile, and a verdict for the plaintitV
was sot aside. XiiiIhikI v. I)( iHiiiri't,'l'HV .V. 117.
Where ;i hushand's conduct towards his wife
is such that she is iiiialile safely or eoinfortalily
to remain in his liiuise, she has a right to pledge
his ereilit for the suitable maintcmince of lier.sidf
and children ; and the party furnishing such
siipiiort may reeovei' therefor, tlinngh he is the
father of the wife, and furnished it without any
ininieiliate intention of making a claim for his
outliiy. (I'rijiilli V. I'iiti-i.-<(iii, l26<'hy. til.").
Where in such a ease a father had for several
years supiiorted his daughter and gj'andehildivn,
liut niaile no claim against the husband ibiring
his lifetime, and after his death made a claim
against his estate, the court, although it eonsid-
ereil him entitled to be paid his demand, thought
the executor, under the peculiar eircnnistances,
Avas justilied in having resisted iiaymeiit of the
demand without the sanctiou of the court ; and
that in the adniinistration of the estate the
executor wouM be entitled to be paid his costs
of litigation. /'/. .
-. On Ciiiili-iii't.i iiiiiilf III,
<h.
Semlile, tli.'it .1 di'lVud.mt's eiidnriiiniiit ■,
by his wife, though in her own naiue, luit iii't,!
wards recognized by defendant, «i,ii|,| \J!
him liiible to an action mi the lull, y,',,,,,l
v. Cnlhl, 7 (,). It. (II. • <i .
Ili'daration on a note made hy ilof,.||,|,.,,
p.iyalile to I ». or orihr, and by l». iiii|,i|.,,.|; ,
plaintilN, Plea, that I), when tlir ii„t,, „",
made was, and still is, ilefendiint's wiiV, \',.,\
cation, that deteudant made tlie hirte \vjt| 'i
intint that l». should endorse it aw.iv, iiii,|t|M
«he endorsed it to t lie plainlill's by lu'diutlii.rji,'
Held, bad mi diiimrrer. ■ Mfh; ,- ,i „i y. i,'
//;.<„(,. bS (,». IS. (;it(.
Pefendaiit, during several years pri»r tu ,„
for part of the year ISd'J, hail a slinii wi,|..i| i,
and his wife, who li\eil with liiiii, ,itteiii|,,| ,r
shop lieiug di\iileil into two parts, in i,),,. ,'.
which defendant carried on a eiiiifictiiiiiiTVin,,
saloon business, and in the other a I'aiicv r,,,,,
business, the latter being under \\w I'lir,,,,,,!
supcrintendenci; of the wife, wlm alw,,.,, „,„'
the orders for the goods, which hu, Iuhhvm
paid for. In ISti'J, ilefeildaut giiVe lip till.' i'„|
' feetionery, \'c., business, and then, an hi' .<tiit,il
sold out the other busilicHS to his wifr furiicr'
tain sum, she agreeing to pay him .'"i.'iiuvuu
which, however, she faih'd to ilu. S|r. onu'
tinned, with his iiermissinu, to carry nn tl,,.
fancy gonds luisiness, still liviiii; witli liim,,,
before. 'Phert' was no change citlnr iiitln'M.
tcrior or in the interior of the simp, cxa'pt tlijt
the defemlant no longer carried on the o,iiiiv.
tionary, &c., busiiu'ss there, tlmu-li ln^ w;,,, fif,
ipiently seen on the pi'emisi's. In iMi'.l, tliiuiji. J
gave an order for the goods in (|iii,4i jihtijj
she had always pre\iciusly to INII'J ln'iMiintlit
habit of doing : — Held, that the lMi>inr..v nm,; i
be considered defcnd.int's, and tli.it lie Wasliiljc I
to the plaiiitill foi' the goods ordiird in |sii|l;..|
Meld, also that the Married Wniirm'.s .\it, c,
j .S. L'. ('. e. 7;<. had no a|iplicatiiiii tn tliiau j
F,,lllll.^ V. Ciii-tiltit, '.'l ('. I'. ;;(;,s.
The ]ilaintilf' went to liritisli < 'nlmiil.n ii;m1
years before this action, leaving hi.-: wilVlarc.f
to whom he wrote and occasioiiiilly .sent Iiihihv,!
,She .procured the defeiid.'int to eiulnr.sf ;i uiitj
made by her for the ]iiice of finiiitiuv tn iW
, (in a boardin.g housi.', (whi.'li she siilKciiiiiitli-i
I carried on with the plaiutilV's kiiii\vlcil:;i.'.'aiiir
' executed to defendant a ch.ittcl limit.!,'aL:c ilii'ltj
' seal ill her own name on said fiuiiitiiiv. I'lij
: rent of the house lieing in arrear, aii'l |i;ir;«
the mortg.age money ovenliic, tlic laiiillnnl ilia
trained, and defendant eufoivcil liis iiiurts;,i;(i
ami the plaintitl's wit'e not dissciitiii:.'. luitratliej
assenting, the goods were sulil, ami tlu' lahiij
after the ]iayinent <if rent and ninrt.'iiL'i', wi
I handed over to her. The pliiiiititf tlaitiipii
; sued defendant in trespass and tnivi-ri-li'
that the wit'e was the agent of her Im.-ltiii'l, llJ
. lilaintitT, in respect to ]iurcliaMiiig the luniiliiK
I and to do all that was neces.sai'v tiiao|iiiivit:-j
Held, also, assuming tluit she exc-ccili'il 1rt,i(
thority in giving a mortgage luiilci' snil, you
the mortgage Would be valid w itiioiit .i st:ili
her own name, the seal did not make it imalij
for all purposes, or prevent it fmrn luiii;.' gn'l
] in evidence as a jnstilicatinii dcriveil fiDiiitl
plaintitl' through his agent of tliu acts ciil
I plained of :— Held, also, that as hy tliisacti^
,111, Ir hij IfJlV.
it's ciiili'i-i'lni'iit lin.'i
!• iiwu li:iiui', li\it iittfi
ffinlaiit, wniiM iiiiil.
1 till' I'lll. I' ■
,. iiiiiili' li\ iliUuilii,',
iui(\ I'V I' linliirsfil tu
). wlllll till' l\"ti' ««
\,.frnillillt.'s wife, r„|,l,.
iiiiiilc till' liiiti' withtlw
iili.rsi- it ii«;iy, iiii.l ll,;,t
iiinlilVrt liy lilHiuitliMnn
.,-. , J/.'/r.-'.'"'. v./.
vciiil Vfiil'" l"'i">' t" ill;'
,(;•_', hiiil !i xli'ii' wliKlili.
I witll llilll. nttrllili.l, til.'
to twii YM-^-^, ill "I ;
.,1 iii\ a I'Miiiii'liimiTy ■»\
1 till' iitlirr ii fiilU'V >;'H«'u
H'illL^ XlllU'l' till' \«'l«ili,\|
ii- witV', wlin ;>hvn\> guv.'
Kills, wliirli 1h'. liiWi'Vti,
fcutliiiit :^:»^'' 'H' till''""
•ss. ami tlii'ii, :>■. lie stiitnl,
(iin'ss to lii^ will' t'lil'iiitr-
yX to Viiy llilll ?•'"> Wrtii,
.'"laili'il to ilo. Shi.' o*
i-tnissiiin. to cavry nil tlir
», Htill liviirj witll liitim
no filling' I'itli'i- iiitlivis.
ior of till' slioii, cxw'iiitte
iii;^i'i' I'liri'ifil "U tlie ci.liiw
is^thi'Vi'i tlioii.uli lii'Wibii'-
pn^misi's. In 1MV.>, tli. Mfc
1,. uooils iinnu-lum, jihtj,
vioiislv to isr.'J I'l-'i'ii mtlit
^l, tlmt till' l.iiMii.'^* raii.t
liiiil's, auiltliatlu' wiislnlle
„. ooi Ills onUira ill ismi-.-
NfirriLMl Womiiu't Ad, I'.
no aiilili^'atioiitntk.a*
1 c. r. :ni«.
It to I'lvitish ( 'iiluml.i\ iiiw
tioii, Icaviu'^ liis will' h*.,
,,„l oi.".:isinn;illy sL'iit liii'iivv,
llrtVlKlallt to CllllilVSl'ab'Jl
urin; of fiirnitiiri' tu iiim"
J (whi.'li sill' siili^t'HiMrt.v
'iilaintilV's Uiiowk'iliii'.'ai.'
nta I'liatti'l iii"i't^''i:>^ '":::
u,H,' on saiil fuviiitmv.
Il„.i„g ill arm.r ai.i !«:.
V ON Cl-iluo, till' bu'lli'i'l '1
[,,^„t ..ufoa'cil lii^ '>'"•■'*«
i,V. not .lissciuni-'. '" i''A
,v.rc SI lU, anil tlu'li;ito
„f rent ami uiortgito', «
,osiiass ami ti'ov.r : - 1^
,w. , ..L'ut of lR'i'lm^l«>i"l''
toim.'c'l.:.siuj,'tlictunim.
,sno.cssaryt..ao|mn|i
:, that sho uxo'ciU'^lliuai
'„ioi't«a;^oumkvs.al,u'
1,0 N^Uil ^vltl..;"t. -'1
.eal ,liilm'tui;>k^\'tw
I stilicatii.n .l>'nv^''> ' ''" 3
lis a-cut ot the act> . <
feo,°tlmtasl.vtlmH
■M
iirsiJANi) AM» Win:
1 07S
],,jl,tiir iiitillril tlin collilni't of liirt wifi! ill joinnl, nKriM'il to rrfer slicll i|Ui'stiiiln ; ainl an
,'liiiHiiii;
1 t'l I'
fnrnitiin
liafi' till' iiioi
III
it I
awalil was inaih'
l..>r
tiiiim' wliirh liinu''il that It. Iiiin^ a fiinc I'ovvit rimlil not mtir into
wi'cn tlii'sr |iirtiis ;
III
llrlil.
I,llt "I
,(„• ttilV
,!,,■ |ll'M|M I'
till' ulioh' ui'i'an>{('inont, Si'nihli', that siU'h an a^Tccnii'Mt to rcl'i'i': that tlii' st.itiiti's as
il.m'i'iili"
Uilji.n, •'.
u,! iiiitti'i'
^tamliiii! h.V "'"' IK'iniittiiiK tin' salt' of to loiiMvam rs liy nianiiil woman of tliiir roal
itv iiinli'i' the nioitna^c, was Honii,' evi I'statis. iliil not a|i]ily to ,^uili a^'iii'iiuiit-t; ami
111' tilt' J'lL'a of loavti ami liofnst!. IVr that tlnr.t'orf tlu; aj,'rt't'niint ami awuiil wero
rnifi'i' <'• S. V. ( '. 11. ''A, thu wit'o not liimliiij,' oii hiT. Itntjliii \. Iluniiilirin, II
to Imv thi' funiitnif with Ikt own Chy. IIS. Sff also ri'/'m/ 11, ./, ,•» A'. IT. t'n. v.
llllMll*
mill till iit'i
lit. .'illil to iloal with l',nl„i. I'J (t. II, Kli;
itiliill *'
llV lll'l'll
ilo an
III! niiMiarru'il ; ami in tlm oiilinai s
if that li^jlit, shi^t'onltl ;,'i\f a inort>;a;:
ill iiri' own nanit' iih if a ffim' soh
//ii'/«li».V V
WluTc a w
/•i
•■k; WW (X II. •.'•J!l.
iti' took an at'tiv.' jiart in hi'i- liiis ,//., ;i,'l (,», 11. WW,
II I'll I, that 1 1 III'! ii'.; lit' r h 11 si 1,1 1 Ill's iin|ii'isoiinii'iil
for It'loiiy, till' wift' roiilil t'oiiti'.u't, at all t'vt'iits
as to wli.'it iiiivlit he ii'iriirtkil as ^ooils ami fliat
ti'ls, as a ti'liit' solo. <'/•,/>'<■'(' 1 1 ii.i-. V. Soii'ilin H
\m\*
InisiiR'ss am
I hail th'
stoils' of his
jiiiii V, Sinn
pall
I to liur wi'i't.' trfitfil as jiaiil ti
III'" .' .' i.|. II lij,l ^..1 sill
(Ii, liiiHhalitl. Itolmixiw V. ( oi/in; It ( iiy. Mil. , ^^^
.\ ti'stator liaviii'.' ili'\ isiil liis I'fal iiro|it'i'ty to
'i of tilt' |ii'i-siiiis naiiit'il as simnlil In' liviiii; at
ih'atli III his willow, tlif ])ai'tit's iiitti'i'sti'il
VII. |'i;ivil.i:i:l
:S AM> Im'M'VI IIIKS OK WiFK. lit'tV
caiiit' to an a^rffniiiit I'm' iiartitimi iliiiiii;; tlio
willow's lift'tiniu. 'I'lit'it' wi'ii' si'M'i'.'il i|iit'siion,H
It'll till' ii,'irtii.'s : till' iiLiiiitiir, w
I'
lo was out.'
I, rririli'ji ffiiiii .1 rfi-tl III'
AlliirL
III lit.
WliL'R'tht'ilflVml'Uit, lii'iiioa iii,'iii'it'il woman, othcfof tin/ iL'\isL'i's, who was-a man
Ikiii'vvii til
11 liv tliL' iilaiiitill', wasai'R'stL'tl that tho l.itttT
of till' tli'visi'L's, was iniliii'L'il to lonsiiit to thu
liartitioii iiiMiii a ilistini't iimliisl,uiiliii^' withaii-
it'll woman,
it of
sliouiil afti'i' iiaititioii, Imlil a
liotli writ ami arit'st wore iiortioii of ln'r sliaii' in trust for t
with t'osta. Full If V. WhUi- ,t
llll ,1 w I'
I Kt :i/'iil
U'liy..il
Wlu'ii tilt' writ. »( <':i" I'y- if* "iil.v a.L^iinst tin
-' . Tl
ilainti
t'fiiit'iit was not known to Liu; otli
[wifi'iui.l I.S ini'KMilar ag
caiiimt he I'liiiilu'lli'i'
iiiimt hi'i', till'
-.liaml
to aiilniar.
III.
S
I wiiiii.'in liviiii; on trrms ot si'jiara- tlu! Statutf of l^'raml'i
visit's; till' 11,'irlitioii tlt'i'il \i:'-i I ■ t'outuil liy all
tin: jiartii's ; tin; |i irlitioii wonhl i ""^ havii liwu
,'iL;rt't'il to liy tin |ilaiiititl' Imt t'oi ihi; jiroinisi;
slati'il ; lli'hl, thai till' iiroiiiisi; wa.s not liiml-
in-;, liotli liLoan-it.' lliuru \va:< no writing within
iiiiin'ii'ii
Itiiiiilniiii her hnsliami, who was in Knroiii'. was
lirristtil fill' 'h'''t' "■ ^*''''''' ""'' ''^hi'wn that tlit'
jiailit"!' hail any knowli'ilyu of lifr haviiiL; a
|bibl'.iii'l living' : " lli'hl, t'l^'t ■■ ithouyh thf wifo
|llii;lit hi'ilititli'il tohor lU.^i II. .1. ,'0 1111 aii|)ln-atioii,
Itlii'arri.'t niiiliT sia'li oiri;iimstani'i;s wonul not
jiiikirt ail ai'ti '' trL'spass. /'i nnrlt it n.i; v.
i!,',Mi(.). R i;;i.
.\iiwmeil ■\Minian, lU'fi'mlant, living vitli liur
th.
mal
iiiii,' it was a mariici
•-'OChv. !Mi.
1'
.an. Mm-lf;/'- hill
.'I. /.ili'-i/i.i/ ill I'Jt/nihl /i,r Fl-'li'' nr .l//y)'iy(/', .<('»•
tlll'lllll.
(^>na ro, whi'tlifr a marrioil wonrMi loiisoiitini;
to a liroaoli ot trust i;aii alti.i waiils
it ; ami st'iiililo, that if sin- mako
t.'o!iilil,iiii of
a roiu'i'sonta-
iil, was tirilt'ri;il to liriiig I'l'rtiiin ai'i'iiunts, tioii anil uin'oiiraut' amithor to ait n]>iiii it, sUu
Imiiiistratrix, into tht; iiiastt-'r's otlioo, ami
IHiviiii; ilisiilii'VC'il tlio ortlor, an aiiiilication to
Miimit lii'i' fur ooiitoiiipt was ri'fii.'ioil, tlio ij;i.'U-
lenl mil' huiiig that thu linsl),uiil iiiiist aiiMwor
Kill' till' wife's ili'f.'Uilt, niilfss In; show soiiio
mako it nooil
//iqir
kriiiiiiil iif exemption. Miiii'/lnni v.
I'liv, I'lialiih. ill. Siirag,i,'o. Soo, als
n'ly.Pnllnl,,,,, (I 1'. Jt. l;tS.
•J. I.iiitiitit;/ llll ('niitftirt.-i.
Wilhi.,, 1
1, Miirchi-
will III' fomiii'llttl tl
/)V,</'i/, ,S ( 'hy. .TSO.
Whi'i'i' a iiiari'iLil wmiiau joiiiril with hor
hnsliaml in making misi'f|)ro.soiitalions to tin e\-
otiitor of a ilrooasoil lu'ison in orilt;r to olitain
jiossossion of a chattol licloiiging to the testator,
the eoui't. upon iip|ieal from the master, lielil her
respoiisililo for sueh inisrepre.-^entation oipially
with a person sni juris, and overruleil an olijee-
tioii to the timling of the nnuster, i;li,'U'gini' her
with the value of the ehattel. liluin v. 'Iiri-y-
1 WkreaniaiTieil woman proenreil the plaintilV' liirri/,
ceinliii'se fur her a liill of exehange, promising
iliiiiiiify him, ami after the liusliamrsileatli
intii I'll the pi'iiinise : - Heltl. that no aotioii
lie, thcmgh it was averroil that the liill
s iicgiitiateil tiirtlio ilefemlant's own use. Lee
iMiigiiei'iilge (.'i Taunt. Wii), Held, to lie in ell'eet
tmU. Diiii- v. Wiirt/ii/., 1 1 {}. 15. ;VJS.
II Chv. •-»«(!.
lAlwml of suhinissiou to avhitration, signetl by
le wifi' iis well as the hiishand, i.s a valiil homl.
M'llil! V. Pi-imilfiiot, 4 (,». H. 40.
A married woman, ownei' of real estate, repro-
sontiiig herself and selling the proiierty as a
siiinster, is not entitled in ci(uity to set up that
the sale was void lieeauso of a eonveyanee not
having liuen cKeouted in eoiiforuiity with the
statutes as to the eouveyanee of laud hy married
women, tlrnliuiii v. M inillii, til (hy. (>(J1.
Where ftir ten years a wifo coneoaletl from the
pulilie her relation to her husliand, and allowed
liin to live with another woiiiau as his wile,
having ileviseil certain real estate, in sopar- under an assumeii name, the real wife living in
rii'ls, til Ii. ami t'., aftcrwanls ineumhuroil the neighhourhot I'l, ami reeeiving from theiu her
lauik V> Was a feme covert, anil ([uestions : own sujiport, it was hehl that she wa.s preeludeil
larisen hetwcen 15. anil ( '. as to the amount ' from elainiing ilower out of laml jiurehasetl ilur-
tlic iinnmhrauec tu he borne by each, they, ing this periml in the husbaiiil's assumed name,
mutual houtls, in which B. and her husbaml and afterwards .sold by him and his supposetl
I, IT'"
Li, ' f
1079
HU8BAND AND WIFE.
ICsi)
wife t(i ii piirjliascr, who hought in gciiiA faith,
uiid without any imtioe of the real relationsliip
of the parties. Jlni'i v. (inrjoii, 17 C'hy. Wiy.
A iiiarrieil woman, wliilo yet under 21 years
(if age, hut repre.sc/ntini,' herself to he of fidl
age, conveyed land to a hona lide iiuiehaser for
Viihio, and the eonveyanoe wan duly registered.
After attaining majority, the married woman
and her huHhand joined in a voluntai-y deeil to
another [lerson as trustee for her, and he sulise-
<juently sold the laud, 'ud lii.s vendee (the same
day) created a mortgage thereon :- Held, that
the married woman, notwithstanding her non-
age, was hound hy her reiiiesentations as to her
being of age ; and that tlie other parties, having
ae(]uired tiioir interests with full knowledge of
the existence of the deed 1)y her to tlie inirchaser
and after the registration thereof, toohsuhjeet to
all the riglits of tlie purchaser; and tlie court
ordered the estate to he vested in the repieseiita-
tive.sof the ])urcliasei', and declared the suhse-
ijuent conveyances void as against them. And
/puere, whether the mortgjigee would he allowed
to retain possession of the mortgage, with a view
of recovering liack the money wliich liad been
advanced thereon t.i tlie mortgagor in good faith.
Batiulto y JIulihii, 21 {■hy. 'J^'.'.
VI [f. Dkeh of Sr.i'AUATioN,
Where in a deeil of separation the husliand
covenanted to pay his wife Ul.'iO, and ajipointed
trustees, wlio, being indebted to the iuisliand in
that amount, gave him tlieir separate notes for
jiayment to his order, wiiich he endorsed in
blank, and returned to thcni for the benctit of
his wife, iind one of the trustees then gave to
the wife the notes signed by jiini, with an en-
dorsement th.it tliey were not to be sold liy her,
and .she assigned them to the plaintitl':- Held,
that lie could not recover against tiie trustee on
the notes, as they having been returned by the
husband to the trustee were I'ancelled ; jiikI that
the wife had, at anv rate, no ]iower t.i transfer
them. ir,7.sv//( v. MrQwm, E. T. 3 Viet.
A deiid of separation between husband and
wife, where the estate is conveyed to the wife
for life, w ith remainder to the children of tiie
marriage on her death, is not avoided by the
subseipient reconciliation of the jiarties, ,a.s the
interests of the children intervene to jireserve
the deed. McA rthur v. \\\l>li ,t a/., 21 ( '. 1'. SoS.
.Semble, tliat where a deed contains a covenant
that a wife shall release her dower in considera-
tion of a settlement made in her favour by a deed
of seiiaratioii, and she does so, after reconciliation
and subse(pient seiiaratioii, at his instance, the
deed is thereby revived. /I'.
Although the policy if the law is to iinluce a
man and wife to resume co habitation notwitli-
standing they may have agreed to a separation,
and that on such renewal of -i-habitation a
deed of separation will be lield void : still where
property was conveyed ti . trustee for the sup-
port and maiuten.ance 111 ;. w.fe and her children
in settlement of a suit i"v alimony, and the hus-
band and wife afterwards renewed eo-habitation,
but the husband subsecpieutly deserted his wife
and family, the court refused, at the instance of
the husband, to set aside the deed. Mv A rthur
V. Webb, 13Chy.303.
! An uiKpialilied covenant in a scimratiim \.^\
i for ii.ayment of an annuity to tiic wiie i„rkf
I life, is not avoided by the sulisci|Ufiit mniicil.
I iatioii of the ]iarties ; or by the wife's leavins
i her husband afterwards without cause H'/iH
v. Walhr, 1!) Chy. 37. '
IX. Actions ami Snis jiv anu A(,uN>i }Jj...
liAMI AND \ViKr..
(al
I. .(/ L,l,r.
Fur liijiiras fa
('as(! by the husband alone for iicglj, rent j,,,]
unskilful treatment of his wife in ciiiM lijfti
'I'iie lirst count was ba<l for merely stiitini'iK'uli!
gence without averring any dani:ij;c ;iivrmii«
j therefrom. The second count allciicd tliiit Iv
' reason of the defendant's improper trcutiiunti't
the iplaintilV's wife, her life was fiiii:iii;;iivil. ;iii,l
she was much injured, being a gnuuKr n|' intinn
for wliich the husband could not sue uliniu. The
; third count coiubined ditleri'iit caiisfs df actiun
some for which the husliand shmilil siu-alniit'
and others for which the wife ought tn he juiiinl'
Held, that the proper cour.se was to arrtrt tlr
judgment, not to award a venire de iinvo Smiiii
jV. Var'/rr, 11 Q. B. 77.
j Tlie plaintilf sued defendant fur iii'iilcetiiiu', M j
a meilical man, to attend iqion 'liv wift- iluniio
childbirth, alleging the contract in iine (•imnttD
be to attend at ."{ p.m. on the I'JtIi'Ajiril, ami in 1
another count to attend wiien luitilioii ;-Htlil,
' that upon the evidence stated in the case ami;.
tract ,'ind lireach of it were shewn, which, witlil
proper amendments, as pointed nut in the last, |
; would support the declaration : l.nt. Ilchl, alsn, ]
that the plaintilt' in this action cnnhl not ivinvur]
for the personal in jurv and sulVcring nf the wift.
Ilniilrr V. O'lil'ii, ;{l i,». K. i;i2.
I After a count by husband and wife for iiijurvj
' done to the wife during covci'turu, a seiMuilj
count, by the husband alone - alter .settiiij; (nit j
, the fact that the horse and cutter, in whieii hotlij
' plaintill's at the time were, had hceii lireeiiii-f
tated over a bridge with the wile, ami that sliel
was thereby greatly injured, and laid ii|i fur i
, long time in conse(|ueuce of the injuries stis-j
tained by her, ami endured great snlKriiij;- ]irii'l
'< ceeded to allege that the hiishaiid was [Hit m
great trouble and expeii.se by reaseii (if the I<ijs|
I of his wife's society and her services, ami vM
compelled to pay, and did pay, large sums ofl
money on account of her illness to nurses am'
medical men, Ac, and also lost the said hurs
and cutter, and was otherwise put to ;4reat exJ
, pcnse, &c. The jury lia\ ing found for the [ilaiiiJ
tirt's, and assessed dain;igcs gciicially on l«itl|
counts :-- Held, that after verdict the swi'ii(l
' count niust be treated as a count only lor th«
' ilamageof the husband, for which lie aloiie eiiiillT
'sue; and that, treating it as such, it was well
joined with the first count, under the ('. 1,. PJ
Act, though damages were smiglit liy hitii iiif
the injury to the horse and cutter, as well iis la
that resn'lting to the husband from the injury'-
tla' wife. Held, also, that defendants were no
entitled to arrest the judgiiieut on the yiouiidthll
■the damages had not been separately :issesse|
upon each count. CdiK/ibi-ll ,/ n.r. y. Tin (<i'f
, Wv^tcrn Ii. ]]'. Co., 20 I'. 1". 345, S. C in .ipi'^'
\Jb. 5t)3.
lant in a Ko\iiiratioii iltt,)
unity to i\u- -.vilVii.rber
the »uli»f(nu.'ut moucil-
or liy tilt-' "il't'a Iming
Is without I'juise. Wniy
ri's iiv AMI A(,\iNsr Hi?-
\M> WlKl..
•1/ /-<"'•.
iy((nV.s /() II I/' .
1(1 ahme for uujilij^mt ami
of his wife in fiiilil liirtli.
a<l for iiiurt'ly ytiitiii;; iu-«li.
riiiy any il:iiii:ige aiiTuiiig
olid oollllt illli'ytd tll;it liy
ant's 1111)11-1 nifv trcutmi'iit iii
or lifu was finlaiigirnl, ami
(1, liuiuji a gi-oiiiiii ni aftiiin
111 I'ouhl not sue almio. Tk
(I ilitVcri'iit causos of actimi,
J husliaiiil sliniilcl siK- alniie, ]
I the wile ought to lie jniiinl:
[lor eom'sc was tn am-st the ;
ard a venii'o ile unvn. .VmWi !
77.
. ilefeudant for ucglfctiu;;, js :
iltteliil "lioii ''i'^ wile iluniig
; the eoutnu't in (Hic nmiittn
ui. on the l-Jth'Avnl, aii.liii
.ttenil when iKitilicii ;-Hi'lil, j
jiu'e stated in the easeant-i
it were shewn, wliieli, with j
s, as pointed ciut in tlie case, J
declaration : hut. lleW, aki,!
this action could not ivowj
nry ami sutVcring ui the wife.
d i). H. 1 :!•-'■
hushaiid and wife InV iiijiiry|
uriiiL; coverture, a ^W"\A
and ah>ue- alter setting i«t|
and cutter. in\vliiclil«itlil
line were, had lieeu \nx<:\\'\-\
with the wile, and that sliel
iniured, and laid H]' i'T a
HUence of the injuncs sns-
iduredi:>''-'"tsnlKriiig-l"
1681
HUSBAND AND WIFE.
1G82
I
I
„at tlie hushand was imt tiij
xiicnse hv veasun of the loa
V and her services, ami wa(
and did pa>-, large sums >A
of her illness U> lUirses M
and also lost tl'.e sai'l li"is»
IS otherwise pnt tn givat t;X-l
' huvinu found Inr the lilaiiH
damages generally nil U\i
at after verdict the «'^';i
Lted as a count only tor tM
land, for which he alone o'nia
ating it as siu'h, it was «olJ
U count, under the( .
,es were sought hy \m i«
frse and cutter, as well a* 1«
hushand from the nijm-y I
o, that defendants were nfl
iu.ljsnientoutliegrouiultj
nt Wen scparatelv asse.8e(
20 r. 1'. 345, .v. C mapH
l<kr
The first and second counts in a doelar.atioii, in
action hy hushand and wife, charged slander
'"j'j,u,,.ift.,' consisting of iiniiutations of adultery
■ mliirostitution, without settingout the words :
u,|il eluarly had. The third count was for
'^auitin"thc wife, whcrehy, &c., ami the fourth
'nil tiftli'connts were respectively for assatilt of
t'h'ffite, per iinod eonsortiiun ainisit, and of the
liii'skuiii himself. The plaiiitiU's (dainied damages
;„iiitiv uiiiier the iirst four counts, and the lius-
iainlalone under the fifth count. Seinlde, that
till, claim foi' ilituiages liy hotli plaintiils, though
lid as til the fourth count, was good as to the
jrst three, hut that l)()th iilaintirt's heing ex-
orcsjcd in the declaration to sue in respect of all
llie'eoiints, chough the hushand alone at the
aiiK'liisioii claimed in respect of the tifth count,
,j „i|iile declaration was had. JirccK it lu: v.
\,l,,,,l,L-2-2i'. V.-2'J8.
Ill a ileelaratioii hy hushand and wife forslan-
ot the wife in accusing liei'of adultery, it was
aUtW a.< sjiccial damage that the wife had lost
jnil heeii dclirivcd of the hosiiitality of friends
ifithwhoni she was in the habit of .associating,
siiil who now refused to associate with her: —
Helil,iininotioiiforarrestof judgment, a siillieient
lallwatiiiaof special damage to support the .action.
Qiu'iv, whether the allegation of the loss of t.he
iM:iMiitium of the husband would h.ive been
ijluiitsiilheieiit. Hehl, also, that the declara'-ion
IflaimiiiJ,' the damages as the wife's, although
iwk'iuwovercd they might belongto the hushand,
|,js nil iihjectiou ; and, at all events, was merely
luatterof form, and so amendable, field, also,
to the eiiurse adopted by the husband at the
with the defendant's concurrence, in eon-
i' the action to bu, in substance, that of the
lie ahme, and coining forward as a witness for
leikieiiee ill sujijiort of a plea of justilicatiou,
^i\ alhiwing the case to be submitted to the
mull the I'jucstioii of the tiaitli or falsity of the
iciiiatiiin, woidd now preclude the motion in
:st III juilgnieiit. Viiiii/ilifl/ il n.i: v. ('(tiiiii-
AiJC. I'.ViS.
I Tklmshand had sued the person accused of
_enhiltery fur charging which this action was
Wit, iuiil recovered a judgment against him
1 Ml aetioii of crim. con., and judgment had
Wii niveiiiii Chancery against the wife on the
biWl tif aihiltcry, iu a suit brought by her
liust the hushand for alinmny :--Held, that
iBiltr these eircumstanees the verdict entered for
ieplaiutitf must he set aside, when the plaintitl',
I ('., if so advised, might raise the (piestion
Mitrhe was not dominus litis, lb.
(h) F'lr ('riiiiiiiid Cdtirrrxnfioii.
I In tresiiass for crim. eon. the plaintilF must
Be strict proof of his marriage. Mere casual
mversatuins of deftindant, in which he has
fan tif the w oin.in as the plaintirt's wife, or
tersfriim him directed to her as such, are uot
Scieiit Vaiiijil)i:ll V. Clin; (i (). ,S. 4.S'2.
|To a ileelaratioii alleging that de'feudant de-
itlieil aiiil carnally knew the wife of the plaiii-
l,ilefeiiilant pleaded only not guilty :— Held,
Ttwwssary to prove that the woman was the
uti's wife. Fiird v. L<iii(/loiii, }'.) i}. B. 31-J.
; is not necessary that direct evidence of
ilteryslumld he given : it is sulficient to prove
10(1
proximate acts and circuu.ntancea : — Held, there-
fore, that the fact if defendant having snjiplieil
the plaintiir's wife, while living apart, with a
bed.stead and mattress at her lioarding house :
that he, an umai-riednian, visited her at all hours
of the day : that he was in tlie habit of driving
anil walking with her: that he admitted he kejtt
a woman ; and that he wrote a telegram from
her to the plaintitl', calling her by his own name,
were strong evidence of adultery. Fntiil: v. ''«/•-
' sini, 15 ('. I' l.S,").
I In an action of crim. con. : -Held, that the
f.iet of plaintitr, liavingafter verdict in his favour
from tncre motives of eomiiassion and considera-
tion for their child, taken back his wife to live
with him, was not such a condonation as wonlil
induce the court to grant a new trial. MiMUkui,
\ V. Jrlhl, 17 (-'. 1'. 702.
' Action for crim. eon. Pleas,!. That the plaiu-
! tifl' had been guilty of adultery with one L. , by
whom he had a cliild now living with him, anil
had cdiitimially treated his wife with intolerable
cruelty, and had friMiucntly used severe ]iersonal
: violence towards her, and tinally put her away
from him by force, and threatened to put her to
death if ever she returned lo him, so that she w.as
in danger of her life, and did live ajiart from him
I |ierinanently ; 'J. That the plaintitl 's wife had,
; while so living apart from him, obtair.ed an order
for protection under the st:itiite, after due notice
to the plaintitl' of herapiilication therefor, which
order was duly registered and is in full force : —
Held, on demurrer, A. A\'ilson, .1., diss., that the
, pleas shewed a good defence. I'nlfi r--<iiii v. .)/c-
^'/r;/'</•, '28 g. ]',. I'SO.
See C(tiiii)lirU\. ( '<i,i,/il„ II, •2r> ( '. 1'. :ill8 p. 1()81.
I (e) Ot/i<r Cits,.^.
Where husband and wife, executrix, are sued,
service of process upon husband only is sulii-
eient, as well as in othijr eases. Sliiili I'ft ill. v.
MhimIi. it »./■., Tay. 17"-'.
In trespass q. c. f. et de bonis asportatis l>y
husb:ind and wife, wdiere the general issue is
pleaded, everything will be intended, after ver-
dict, to support the declaration ; and aithongli
the wife's interest do not clearly appear iu all
the counts, yet it will be sujiported on motion
in arrest of judgment. Ilnin' it ii.r. v. Tlidiii/t-
.<o/(, -M. T. (> N'ict. See contra, in an action on.
contract. tS/iiihcnjy. Cormnill, ti (>. S. 253.
I T. having the title to land, she and her lius-
] band brought trespass for injuries to it, and
defendants jdeaded that the land was not the
j idaintirt's'. It was objected that there was no
joint property to sustain the action ; lint, Hehl,
that the objection was not available as ground
of nonsuit, yua're, whether it conld have been
(111 demurrer or in arrest of judgment. Tucker
'. i-t iu: v. J'/i!l/l/).f It 1,1., 24 (i.'B. (12(1.
I An artidavit of the wife of a party to a cause,
I cannot be read on motion for a new trial. Ifi'ii,-
ili-r.foii V. ]\'iilli(cr, E. T. 2 Vict.
A wife cfmld not sue in her own name, her
husband living, for W(U'k performed by her.
Jltirjilii/ V. Biiiit et ul.y 2 (,). H. 284.
A hushand entitled to land in riidit of his wife
may bring ejectment therefor alone. Dur d.
EIkHh v. Muiitniiil. O. B. 515.
1G83
HUSBAND AND WIFE.
M>l
iiii
Where a wife, living apart from lier husband is ; Cdnnected items : — Held, tliat
in possession of land, nniler such eireunistaneea
as precludes tlie jiresuinption of her l)eing agent
for her husliauit, she must he made a defendant , . ^'uiiiiii
in ejectment for the land. W'liixlini rd \. Cinii- heen set up in the court below. /!iii,l y n
■iiiliHi.-; (> I'. 1!. IIO.-C. L. Chaml).— Dalton, C, ^ •
C. .!■ /'.
- . . ^ -, .... frrdjjjjjj
shewn for a prohibition to the liivisi,,,, (■ "
that the .suit was clearly within the jmisii:!!'"^'
and that the defence of eovertiire sl]|i|,|,|"|'|'"'
:ive
AVhere a wife, wlio had been abandoned by
her husliand for several years, took a lease of
premises without his knowledge, and she brouglit
an action for tres[iass thereto in her husband's
name : — Held, that the action was proper.
Joiii.1 V. SjHiirf, 1 (.}. ]i. ,S{i7.
Assumpsit by husband and wife. Declaration.
1st count, " 'I'liat defendant was indebted to
the jilaintitl's wife, while solo and unni irried,
in f'-'dO for wages as a hired servant ; in t'-'OO
for money lent by her, itc. , and in consideration
whcreot, defend.mt promised to [lay her, itc. ,
(while she was sole and unmarried,) ou request
&c. rieas, 1st. Xim-assumpsit. It appeared
in evidence that the plaintitl's wife dum sola
had lent defendant some money, wlicn to be re-
turned not clearly a^ipearing; and, fui'ther, that
she dum sola had worked f(pr defendant for three
yeai's. 'I'hcre was also evidence of a<lmitted
liability by defendant within six years. The
jury gave a verdict for £'2'), liut it was not ilis-
tinctly stated \\hcther div w.igcs or the money
lent. The court refused to distui'b this verdict,
it being in jiccordanee with tlie Justice of the
case ; and it was said that the addition of an-
other count would obviate all dillienltv. Jinr/.t r-
rltk <l ii.r. V. Curhiil, ;{ ('. V. l.V,).
A nuirried woman, during her husband's al)-
sence from the country, lent defendant money,
taking an acknowK'dgment of indel)tedncss to
herself. In an action on tiie common counts only
by the huslianil and iiis wile, the jury fouml that
it was the husl)and's nu)ney lent by the wife : —
Held, tli.it the wife was improperly joineil.
JfiHi-liiiiilllir 1 1 u.r. V. r/icr/iiiitsi, 11 (^1. |>. 42.").
In an action for the maintenance of an illegiti-
mate child under ('. .S. U. C e. 77 s. 4, it ap-
peared thtit tiic plaintitl was a nuirried woman :
• — Held, tiiat the plaiutitl' couhl not sue, for it
imist lie presumed tiiat the necessaries furnished
were her husband's, and slie must fail on never
indebted, no plea of abatement being reipiisite.
JacL-'u/i V. /vo.s'.-i(/, •_•(! Q. K .'Ul.
In an ajiplicatiou bya married woman to revive
a judgment iiiider ('. L. I*. A. lb.")!) s. liO.S, her
liusbaiid must be joined. Sinni v. Cb-liiinl, '1
L. .1. •-'■•{'). C L. ('hanib. Richards.
In an action brought against a husband and
wife foi' slander, the declaration allegeil the
words constituting the slander to have been
spoken by both the defendants, while the evi-
tleiice proved the wife alone to have nuule use of
the words complained of. (hi motion for non-
suit : — Held, that the declaration should have
alleged that the action was brought against the
defendants fcu' words sjiokeii by.). \\'., being the
wife, ite., and that it was not therefore supported
by the evidence. WiUonw Wc.ft d a.i\, II (.'.
P. 127.
The plaintirt' sued defeiulant, a married woman,
ou a demaiiil exceeding Jj'-'OO, but abando'ied the
excess above .*!!!>. 75. Defendant claimed a set-
otl' exceeding S400, but consisting of various lui-
•20 {,>. 15. 4r)(i.
A. having obtained ])ossessioii of (jortiiin,,, l
and chattels liy bill of sale from a s|ij|.j||';"'
^'.i"'i«|»w,t,v.,vSj
joining !,(., I
?»m an,l
an exeeiition i.ssued on
against a niari'ied woman withdiit
husliand. B. having recovereil ,a jn,!^ ^
issued an execution in the saiijcwav mj.i ,1
joinini.' the husband) conteiK.cil in' ■,ii ;„.
pie.'ider that A. s .ludgmeiit was null an,) v„jj i
and that he was entitled to the .u'ikhIs ■_}l.'i|'j
that A.'s judgment not being alisiiiiit,.|v]|ni|. i
void, and he being in liosscssiou wjtj', ,, ,,p"
facie title, he was entitled to raise tliu sdi',.,
jection to I'l.'s judgment, ami that Imth hiii:/!
nielits being o]ien to the same "hjcctiuus, Jijl,," J
entitled to prevail. JJari.i v. /ycn/if,,; jil
V. I' 2',I2 '
The plaintilf proceeded by writ iifreviv(irti,„ij
tain execution against the hushiiiKhiinl wiiV,, ,
judgment recovered . against the latturl.ii„,vi,|j.j
riagc. The declaration set out the writ, iimli
the jtulguieiit was stated, and praycij ^'Xi^.^,,
against both di'fcuilants u]i(iiiit : ainldi.-tuinlam
demurred, on the grouiiil that ikp Icual li.iit ,
action was shewn against tliuin, .■iiul tliat tiiJ
proceeding by writ of revivor was nut a|i|iliial,i(i
— Held, that under the ('. L. 1'. Ait mi. UJj
the proceeding was proper, and tliiit tliu n:l::„
action need not be shewn, but only ;i r!i;iitiin].i
facie to have execution on tlie init'.;naiit l-J
injr//, v. J'(ill,r.^oii, 21 (). I!, ■.'(i',1. ^
2. /i) /;-/»;///.
(a) Wi/c .Stiiiiij 1)11 yi.rf I'l-'innK.
AN'here in the course of a catisi' it Imuaiej
cessary for a married woman, a (iMrty tiitlK-siil
to make an application exclusively un lur ,
behalf, she can do so only liy licr inxt iiiiiij
C'iKiiii 1/ V. (•'trfiii, 1 C'liy. (.'haiiili. 1)4. Siai
Insults bya married woiii:iii ri'sptrtin:
separate property, siie must sue sepuriitrh im
her husband, (by her next friuml,! iiniiu*
make her husband a defeiidniit. Il'.,i'l',fi\
J'oiilr, 1 t;hy. 2()ii.
Where a married woman lilcs a liill witliui
next friend, the proiier onlcr tn make, in I
tirst instance, is that a next friend he .■i|ii»iiiia
and tiiat all |U'oceedings in the suit liestiinf
the nieantinie. .Mcl'hn-.-iiiii v. ,l/.'(»'~. i if
Chamb. 2.'")0. -Spraggc.
■\Vhere one of several co [iluiiitiiVs isaiiiaH
Woman she must sue by iiixt frieinl, \\,\
be a solvent person, ca|i:ilik' of aiiMVeiiii; ill
I'linn V. I.iurlcs.t, I Cliy. ( 'luuilli. .'i.'i.').
Koughnet.
Semble, if the next friend of ii iiianiul vvlii
makes the necessary atlidavit of ju^tili^■a■
swearing that he is worth L'l(llhiverlii.< 4(j
the ipiestion of his solv ;ncv will nut lie gi'iiiT
McBinn v. lAUcii, 2 Cliy. Chamh. 247. -Sit
The test of the solvency of a next frieu
whether he is worth t'lOO over ami .ilmre
will pay his just deiits. .Mutiun t"
next friend ou the grounds uf iiisnlvdic.i^
1G>
111, that un pm\>\ «■«
I t(i tho bivisi.iu Cmrt.
y within tliu junsil;cu„ii;
(if coVfi'tuvf shuuMhive
thcUnv. /.Vtr.fv.ir.,!,,.,
lioHsession of certain gik.l,
f sale fi'Kiii a A\mfi ii|»,|, i
oil ii juil.uiuijut vw.vi'reil.l
iinan without jimiing 1^, ,
rucovert'd a jiiilgiiitut an.l i
in tlio saiiiu way i«itliiiu|
) coutfUi.Lil in im inurj
lifiuciit was null ami viji.U
itlcil to tho ,U"n.ls;-Ht:l.U
,,,tl)i'iii;^ ahsi.lnU-lymiHa.ll
in j)ossfs:<ioii with a (innul
ititlfd to vaistj thu >;iiiiij«li.j
'iiiout, and that Imth ]\\i
'tho same ohift'tiinis. licwal
J)arif V. /.'!•.;( (/ n!,.
jydeil hy writ of revivor t'".i|.|
st the husliaiuli\\iilwiii'"uf
ni'aiust the lattevliL-iuix-iuarl
.tioii set out the writ, \ii\\1ik1(
stated, and pravfil rtwutigi
laiits upon it ; ;ai4 ildtuilaiiH
rviiimil that UH U-gal vi:iito
' ;i"aiiist them, ali.l tkit M
• ot^vevivov wasu'>ta\iiilKiU
ev the ('. L. r.A>:t.-
s iivoi^er, and that tliunjliti
^.' shewn, hut oulya ngiitii
ir.'i.i
HUSBAND AND AVIFE.
IGSO
ution oil t lie |Ui
, ■2\ g. I'., '^'i'.'.
'■mint.
I, 1 (^ lint sustained hv eviduuce. S/arr/ v.
[rX.'H'l'y- Cliaiiih. 4-.'l -Taylor, JM'tn,'.
Where it hecoines neeesnaiy to siihstitutu ,a
n\ iii'Xt friend, the motion for the apjiointmeiit
l' mill 111' "11 iiotiee, anil an order taken on jira'-
' . is in'0},'iilar. An order so taken was set
„„l,Mvith c'i'ists, on tiie grounds of irregularity,
ilwitluuit L;oing into tlie lllu^stioIl of tliu sol-
velk'Vof the liarty aiipoiiited. Jiriiiir// v. S/inhjii,',
•Mli'v. Clianil.i. 1 '.14. -Taylor, Si'nrtiir;/.
ICi{'
•2. /;/ /v/"'7,-/.
■ourseof a eause it 1ko«
[vied woman, a vartytiitlK-
atiou exelur^ivelyiiuhrtiil
11,, so only hy her uext imii
1 (■hy. (''luuiih. H-Siina^
luavri.'d woman vesveetin::
,l,e must sueseiiaratdylrt
IV her next frieu.1,1 ami i
,1 a deieiidaiit. II'Mk')^
L„l woman Ides a hill ;vuli"(
iil-.H
sue
loll, eapahl
for the jmrjiose.s of the ai.'t a married woman
.shall he deemed a feme solo, /o MrKhii. (i I*.
It. I!l0.-~('liy. Chanili. — Holmested, /ii.<jiii-/iir of
Till,'.'!.
See, also, the eases under " 1'i!oiiii;in- Amv."
'■ (h) Srrrlrf af l^djur^.
1 Whore a hiishaiid and his wife are defendants,
.serviee of a iiotiee of motion iiiioii tlio wife will
I \(|efeiiilaiit ill a suit cannot aet .as the next , not he a good service on the hiishand, unless
j('^.i,,iiif the ]ilaintitl', a married woman. .V. ('. 4 made at his dwelling house, /fiimrd y. Mii'in-
I, J x; s. 4'i. -thy. t'liamh. -'J'aylor, ,SVrr(7((;v/. /(".'/, I C'liy. t'liaml). .'{til!. Spragge.
Uiaiiie i
i'ii.iiuli
(111 a uwtii'n to dismiss the hill of a married
iTPniaii. tlie court refused to count against her
Mvliieh had liceii lost in coiisci|Uence of an
lOTilvn'htaiiied hy the defeiKlaiit reiniiring her to
le a new next friend. Puch' \. I'luili, 'laVy.
I,. 47,"). -Mowat.
\lmshanil and wife may jointly maintain one
,11 fur siieeilio ]ierformanee of a covenant made
iMvile innst sue hy her ne.xt friend. Jixxoj, v.
(!.i„.«, ir. Cliy. 4S!).
U feme cnvert plaintiff may change her next
feilwitiiimt giving hiui notice or security for
litsahvaily iiicnrreil, hut notice to the ojiposit,
tv is neeessary. If 'inn/ v. Jiooinii; 'A Cliy.
jiiili. ll.-Mowat.
ffiid'e a married woman is a co-plaintiir with
tliibhand, who has a suhstantial interest in
iiiit.siienuist nevertheless sue hy next friend.
r,;i,.,,-/( v. MrKiiitiii/, '.i C'hy. Chanih. (>,"). -
.1111.'.
On ;iii appeal agiinst the report of the master
iiiiirieil Wdiiian and her husliand, defeii-
ui tile suit, it is not necessary tli.at the
ririlwiiniaii should have a next friend ; such
ering from an ajiplicatioii hy a married
[iMiiahiiiL', lliiiii'ocLx. MrZ/riii/, ISChy. 'JOD.
iffkiv a married woman defended a suit in
h'atanexttnen.lheaiilii'Uia
.edingsinthesnithestiu.1
Mrl'lin-snii V. M'-l.'
teyevaleo.plaintilVsisamai^
hy next tneml, w.ii"
i,f an^-weriiii i.i|
t'hamli. :i:):i.-«
1 thy.
I next friend ot^inwvviL'lrt
tsiry alVidavit of f^f^
le ,s" worth CUIK liver lii* 'I"
tsolv.ney.iUn,iOio,^M
L oc'liy, Chaiuh..;-!!.^ ' r 1
'"Solvency of a next H
.rtli aOOoveran.U" J
■f ilehts. M"ti"i> til dian|
fSi'^l-uids of iusolv..-
.-\n application for an order to serve a married
woman as if a feme side, and for an order for
sul)stitutional service upon her for her hushand,
who could not he found, was refused, he imt
heing shewn to he out of the jurisdiction. J/(//m'.<
V. JiarLir, '1 Chy.Chainh. 407. -Taylor, Scrrr/'iri/.
A\'here a married woman cl.iinied goods seized
under a Ii. fa., and .-in interpleader order was
applied for, it was held that her hushand ought
to he served with notice of the motion, (iiiiirliiiiv.
liiijrinii, '1 Chy. (.'haml). 2;>7.- -Taylor, ,S('vn-larii.
(C) ..1 ll-lir: riiKj.
A married woin.in had heen served, with an
otHce copy of a hill as well as her husipand, hut
no joint answer was put in, and an order was
served upon her to answer separately from her
hushand. No answer having hccii juit in after
a month from such service, the court refused to
make an order [iro confcsso against her, and
directed a second otlice co]iy of tiie l)ill, together
>vith an order, to he served iiiioii her. directing
her to answer separ.itclv \\ ithin a time limited.
MWrrx. <!i<r<lnii, ,", Cliy. I St.
Where a married woman is interested in an
estate, and no Joint .uiswcr is ])ut in hy liei'self
ami her hushand witiiin the time limited, appli-
jiiiivwitliimt a next friend, it was held that , cation may he made to allow her to ]iut in an
liii>rianil and wife could appeal to the Court answer sejiarate from her husliand, tlie atlidavits
.to'al withiuit any next friend, Jliif/ir v. to state wiiy her answer is reipiired. (lunl'in v.
Wiiinr, ." 1^. ,]. ()7.-('liy.
ma.K IS I'hy. 190.
Liuairieil woman applying under the Act for
littiii;^ Titles, must proceed hy next friend.
|i/ijir'rin'/, 4('liy. ( 'hainh. 74. -Taylor, /'<■/( nc.
I iiiMrieil woman hrought a suit in her own
( t'nr reileinptioii of lands, in which she
inidlau estate for life under a lease made in
-Held, not her separate property, so as to
lilt her to sne without a next friend under ,ir> [
s !). A former suit in respect of :
|siiiic snhject matter in which the hill hail
lismisseil with costs, to he jiaid hy the
tfrii'uil of tlie plaintilV, was eonsidereil as
Uiitially a decree against the plaintilf with
.ami proeeeiliiigs were stayed in a second
jimtil seenrity should he given for the costs
pell soeuiid i3uit. A stay of proceedings
c costs of the former suit were paid
|te!u.seil, there heing a distinction iu this
M liftneen suits hy married women and;
klivjiersons sui juris. Ji'rdiiinii v. liriiirn-<-
ji 1". R. 84.— t'liy. Chanih.— Holmsteil, '
I'ntil the time for answering has expired, the
jdaintill' cannot sue out an order for a married
woman, defendant, to answer .seiiar.itely ; ami,
if the wife put in an answer jointly with her
liushanil, it is hiinling ujion her, w hether the
suit be in respect of the wife's scp irate estate or
not. (Jhii-b' V. McEh-nii, 10 Chy. 'ilO.
Wliere liushaml and wife had jointly answered
and deinurred to a hill, which deinnrrer was
overruled, and the order allowing the same only
extended the time for the hiishaml to put in his
answer : -Held, notw itiistanding, tli it the hus-
hand and wife might put in a joint answer. /'/.
Before an onler will he made to answer sejiai-
ate from her hushand, it must he shewn that an
otlice cojiy of the hill has lieeii served upon her.
and that she is in default for want of answer.
Aiwti!iiii(iii<, 1 Chy. Chanih. !). — Spragge.
A solicitor accepted service of an oHicc copy
hill on behalf of defendant S. and his wife, and
' gave a written consent, in the event of no answer
Imrrieil wmuaii (iliiig a claim under the Act heing tiled, for an order pro coufesso ;— Held,
pictiiij; Titles, will not he reiiuired to name that this did not dispense with an (U'der for the
ptirieiiil, as sec. 41 of the aet provides that wife to answer separately before proceeding to
'i
n
IMI
1
ki '
u
PfP
F
h'
''
?! ' * '
h' *
t'
1' ^ ■*
.:ii«
I
1687
HUJ^BAND AND WIFE.
I:
16SS
take the bill pro confesso. S' riji'mit v. Sliar/x',
1 Chy. Glianib. ()3.— Eaten.
All f)r(ler will not be made to take a l)ill \ivn
conffsso against a niarrieil woman without her
liaving hail an opjKirtiinity to answer st'[)arately.
W/ilt<- V. C/iinr/i, 2 Chy.'Chamb. -JO.S. - TayloV,
Seen til ry.
Husbanil and wife lieiny defendants to a suit
of foreclosure in respect of property belonging
to the wife, the liusband j)ut in an answer alone,
and the phiintitl' moved to take the answer oil'
the tiles for irregularity, and to take the bill jiro
confesso against the husband, wliich was refused
with costs. L'llinlt V. lliuitir, 1 ('hy. Clianib.
.158.— Spragge.
It is not necessary that the bill should be
taken jjro confesso against a husband before an
order to answer sei>ai'ately can be obtained
against Ids wife; it is suHicieiit that the time for
the joint answer shall have elajised. In a fore-
closure suit to which a married wom:ui is a de-
fendant, it is not necessary that the bill be taken
pro confesso .against either husband or wife ; the
proper practice is, when the time for .inswering
by l)oth has elapsed, to apply in chambers for a
direction to clraw up the decree on piwcipe.
W'lilbr V. '/'///'•/■, 1 Chy. < 'liamb. IS!). — Van-
Konghnet.
It is not necessary to serve the bill on a mar-
ried woman (her husband being a co-defendant)
before obtaining an order to answer separately,
service on the husband alone is sufHcient. Btiiiii
V. Barrkuj, 1 (.'liy. Chamb. '_'.")4. — Spragg-s.
The court will not, at the instance of the
plaintitt', grant an order for a married woman to
answer separately, unless the husband has been
served with the bill, even though the husband has
absconded and cannot be found. liriuiilnii v.
Whiilor, I (.'liy. t'hamb. •HVl. Vanlvouglinet.
Where the plaintiff applies for an order against
a married woman to answer separately, on the
ground that the time for the joint answer of her-
self and husband has ehqised and no answer has
been tiled, he must shew that the case is a proper
one for such separate answer. Wrhjlil v. Mi>r-
row, 1 t'iiy. C'hainb. 280. -Spragge.
At the time of serving an onler to .answer
separately on a married woman, the original
order sh.mld be shewn, and the fact sw(nMi to in
the aflidavit of service, otherwise an order pro
ecmfesso will not be granted. UohinMiii v. Doh-
.10)1, 1 Chy. Clianib. 302. — Sin-agge.
Where a married woman received an office
copy order to answer separately by mail, and
accepted service in writing, and returned the
original order with service accepted endorsed
thereon : — Held, sntficient .service. Kiiwliif v.
/iiirliiuiaii, 2 Chy. Chamb. 42. — Mowat.
The case of service of a bill upon a married
•woman, after an order lias been obtained dire(;t-
ing lier to answer the bill separately from her
husband, is not within orders 1)4, !)">, and !M>,
which re(piire a bill to be served within a certain
time from its tiling. Jhirarv. /■')%,() I'. K. 135.
— Chy. Chamb.— Strong, Holinestcd, Rrfirn-.
(d) Other CaacK.
AVhere a mortgage was created by husband and
wife upon lands of the wife, ami the mortgagee,
together with the husb.ind. j„iii,.,l j,, ,, ^.^^^^
ance of all their interests to a luuuhaser tl '
court in a foreclosure suit ivt'iis,.,! ^m jiii,,,,,'): !*;
reference under the orders of is,-,^^ .|,|,| ,|j,,,.,.? "j
the eau.se to be brought to a lifarin^' in thf nir '
lar way. 1 1 'a ///■>• v. yy/(Wo/(, 5 ( 'hy, ViJ. '*'"
The fact that a married wuiiiim js ;, ilftVnilunt
to a foreclosure suit (the time lor Iut suiiar'it •
answer having elapsed) docs uut ivudur it nires'^
sary to apply to a judge fui' a dii-ivti„ii t<, tlio
registrar to draw up the .lecivu on pridiie as
the registr/ir has power to d« sn witlnmt 'ii'iy
direction. Murjir v. .VrP,,i,.i„ll, \ ( 'l,y. ('i,.,,,,!;
2.'j!>. — Vanlvoughnct.
An order to take a liill pro confesso .ig.ijnst a
married woiiian is now uinu'ci'ssarv. Jf,!,-, ^■
SiiHUi, 1 Chy. Cliainl). 31 (i. Muwat.
An order for an intcrplcailer imd hcuii apiili.,!
for to try tlie right of a iiiai'ricd woiiirin t'lcr-
tain goods seized under ti. fa., to wliii'li uiiiiliia-
tion her husband was not a party, and the iiDtinii \
was refused with costs, as i-eportcdiii (limilov
Ingram, 2 Chy. Chamb. 2;!7. l»ii tliat aii|ili,_'ati..il j
certain depositions or cxaniiiiatidii of tin.' Jiiij.
band had been \\\\i in to sliuw tli.it tlie claiiiiantj
was a married woman, but had not liuen fnniiallyj
read, the fact not being dis|i\itcd. On thu d'i>e|
of that application the .soliritnr for the |ilaiiitiffl
took away with him these dcpositioiis, am! imti.el
having been served (ju the hii.sliand, the iiintiMnI
was renewed and an interpleader unler i;raiiti;(I|
by the secretary, wliicli, on appeal, was snstaiiitilJ
Oourli-ijx .Iiiijriiiii,'! ( 'liy. ( 'lianih. •JDS. — S[jr:i:';.'e,]
fx. I)., and H. T). his wife, iiieuiubi!uiuurs,\vira
made parties in the master's otHee, and iintap
jtcaring on the day iianied in notice .\. :— Hdd
by the master that an orderiu ehaniheis iinistli
obtained, giving the wife liberty tn <'iiiiii; in t
prove her claims sei)arate and apart fn'iii lid
husband. 'J'he onler in elianiliers was after)
wards obtained ; and service of a iVcsh iintiq
was dispensed with. Mur-iliiill \: Wiililir,ii
J. X. S. 24.— M. (J.— Taylor, Sin-ftiinj,
Wliere a bill seeks the destnietiini nt traj
estate, some or one of the cestiii.s (|Ue tiiist
necessary parties In order to the prii]iL'r iniiid
tutioii of the suit the Imsliand ol a feniak' inarria
plaintill' must be made a defendant lliiictj
Bahirx. Trii'iimr, 15 Chy. 25'_'.
Where it woidd be attendeil with iiie"a\l
nieiiee to have a niarricil Avoniaii exaiiiiiifil hyl
court or jmlge, tonchiug her con.sout tn ahaiiilt
her interest in the fund in litigation, tiK'examiu
tion may be taken bv the master. Tumiihuiil
Ho/niix, 14 Chy. 24,k
Where the (piestion as to whether tlio wiilJ
had elected to take an animity in lieu of iluMf
arose in connection with a claim of the ili-fi
dant f(n- jiast maintenance and ediieatinii ni |
plaintiff, this point was reserved until alter
master had made his report. Wiiliiiili>i v. S|
15 Chy. 210.
A i.uit was brought by a married woiiii,
which her husband was joined as a ilefeiulj
The plaintiff tiled the usual atiidavit eii I'l')
tion of documents, producing all the ilneiiniq
in her possession relating to the matteis i" 'ji
tion ill the suit. The (lefeiidaiit api'liw
compel further production, vi/., of doeuina
which, it appeared, the defeiuhuit, the \}\m^
im
.s1)an,l. i„i„,,l i„ a convey-
uresis t(, a imruliaser, the
suit ivfiis,.,! an immediate
rlT"\ '^"':^. •""Miivrt,.,!
it to a lieai-in- in the iv.-u.
'iirtoii, 'Why, •,\:,-2, '
rrieMl wimianisailefen.laiit
■ (tlic tiiiK; hir 1,^.,. se|ianite
il) .l..esimtivnaeritneets.
uilgo tin- a ilii-eeti(in to the
the (leeree im pra^eiiie, iw
■wur t(i do sii withimtanv
.1AV>„»;,„//, 1 ('l,y.ci,,j,„i;
liujland, liail ill Jiis ])ossf;ssioii ff „■„„ ,i
that lie held tliese docuniunts f,,,. f. f '''"'-'8''''
tlH- l-laiiitili; an.l that t v.. , " i'";'"''^^ "^
tlicm at the hearing :~h[Ii ^ | , ' "''''^''l '" "^'-^
mssessioii of the wife • that ^ M! '"-' ''^t'
Si oiilv he ordered up fp;,>;^^^^^^^
..i^'i-oath, hy the iwrty a..U^s ' , ■'•'"'""*"'■> i
pfcitinn is made, of having ''V """ '^l'"
li^MLssession heside.s those t v ^•"^""'?"t« "'
Jalenie covert plain iff w Siill''''''^"^ ''
tendaiit, is not lIo„ii,l to ,,. '"'«'«'"I is a
„l.loe,„ne„tshy her husl.a.i, ri'i' !'r'''":!^J''»
liis co-defendants ; an.l that fl. 7 '"^'"-'''t "f
* ohtaini.ig of diseoverv' from a !'o ,r^'""^*"'^'
K-Ucted the plaintiff s husl ", 'i' f "'''-''^^^'":'.';!'t.
, =.K.vamiiiation hy his co-dSilnts "/'"'"'''>'
(>;«, (! P. J!. 203.— t'lu , ','"'" ^■•
HUSBAXD AXD WIFE.
1090
I Kliiltrs AND r^rADlLITrFS .)[,■ H,.,„
SEQUENT STATITTE.S. " ^ ' ' •*^'" •'^'■"-
(iti'kr ('. s. r. C c. 7,1
1. Drrkhin.
Mho ettectof tlie (' S U /' ''' '•ir-<^*'''i''-o, as
k-bul's right to possession of hi, tif''- "\ *''"
.fcro he IS not teiunt ),y the enrte.v v ^'■"l"'
Iliat an action I)v the Jiiis,l,n,„i i
pistai«iiy.seiin. sei '^^^^^^ '\'""f '*'" '■'^
':;ftliipos^essi.;no;i.^'iJ^C"'S-""'^'^
'■*«, IOC. P. 470. ""'t«»il. kra^iiw
Thqmperty of a woman marri..,) I, f x,
(tf'Mav, I8.-)!I, without •„ , • ''^f'"''-' *''«
'S'ttlement, i jm e e e.l ^. '''5" ^'""^'•''^•t
«»%.1S^!», and ml'^Ki^^'-^ted after
fcstmirefora.leht e.mtin t^ V f ^^"* ^here
SI'MWIU-asnotmX ite Z?^-''"'''^^^''
.^;^.it«-,.,heM that the prlert; "" "* *'"-'
Wt* of .listrihutions WIS , ^"i- i",'"''"' ^'"^
1*^*1 In- tlie creditors ;• the s„ v v •"'''" ?" ''«
puitfrest, however ,,h^ t ' . ?° '"'s'w.'d. :
H«'"-iving, and i, li ,'''^ "t-. ''« hu.s- :
|lfi-(iii. • ^- J-- (-haiub.— A.
--S'i.;i^hS;::^'.V'''^!-'<"'-''^.l«eand
.«'tl. defendant t., ' "; '"'1' '''"tirt; .she tree
''■«td,arge of her claim on si "" /"^''''-'''''^'tion and
j'"t ueeordinglv ex ! ' , i^'. " ,""^'-' = tlmtdefend-
*"'"■■ t" l.er hefoiVaei, '' '•;": '^""''^'■'-"'' the
'^xpres.sed any dissent /,' "",' ^''''t «l'e never
'f - «aid tende;^Hohr "'■''/^^'-'^'^'''^''t •'■ W
If-: '• Asnota;e,.W,, til t't,'''''''"'''^''- '^ '"'<l
; "gt. .settlement, so a f?. , Vh'" "'^'^ »" '"^'■•-
! the provisions „f f ,s ' ' "° tlji^ case within
the accord and sat,\;f , V- ' ' ''■ '•» '■> '-■ Reeause
; to have l)eeM in «riti, ., "^'^ "'": '-een alle-ed •
: tnis would ha:v'n^;;^-;,':';'t«hi.di the phHm
•Vflvechnie, 7 « .i..' !;: ^'l -^'.'.V- McKeclinie ..
V.''» «•'; <'l'il.lers' .-■],■,"■ ", ''"""ette, 1|.
' from hi.s control •■>„?• ' '"•■'' ''"shand and
;«-t/'areno;'to't'':^;;;:?i:;:'V''^''-'^''-oon!
; «'f- ahsohite control a 1 I r."" «'^ '"« t''^
i::'';r-'':'"Miren.aidcs ,;'': ;;t''''''''^^
, '^ different eonstruetio,? //" ''""°'-''' to her of
'^'S';;^th^:S:rf--^nn,..,the,dain.
■•'y^"",«t M. and others he ' ''';'V';"''j'''Wn'ent
att,ach the intere.s , '„ " ' -^ '''"'*^^^''' to
—•-'. Wilson
1 !'• d. X. s.
Ul»t,i married woman wic I , ,
f»t„tl,e grantor fo Ci^'' ^'-'f ^d I,y lier
h>mt timher up,,, it 2'/",''' '''^f^'"'I'i"t
^^1 '* injury to / ' , ' ''' '""' ''^■'- l'»sl)an,l
^^^;i-ty.to the'lie*' ,,5Sc s'^V'
h'™ »■ the lease c u I la^' '' ''"'^^ '"^*''*« =
►''^"tliepartiesto t ,> ^'^ «P<i'-.itio„ '
'''^""""■«' reversion n', '^'' ""* ^'^tal.lish '
^'«'l^''Uhatthewk„t^^^^
/i/'f/tfs tint/ / : ./ */■,■
!l''''"'ti«Hl:^■n^';;:;;:V''''''^^-One of the
: "f the land in .^nj 't , , '' 'll'^, '1^ '^"^''^ to her
-'titled l,y the'a t su7. o , ' '''"* •^'"^' ^^"^ ""t
: I'^t hen- husUuid .nus ,f "^;",^^'^tinei,t, hut
I'l'oii an action l)roii..|,f „ • ,
woman for a cause of ' h^ J'f'T^ " "'^"Tied
sola :-Hol.l, I. Th , '"" ' "^•^•'•"^■<I 'lum
■ a ■•er that at the tim,. I, .' i "* '"•''-■'--^sarv tb
n//fu,>, IOC. J. ;^j^o|'"'''^ *^^*tate. MnMuon v.
'pu:;.'Srrr::,;\c'f''-i'r^f''v-ou
'"^•- "'arriage to K. 'the ,' r '/"'''i''-' ''>' ''--"'ter
«-Y-"tion founded t 'eorie'' ^''■'V'^''''^ '■•'-'«»•
jvlllch were the .sep ., .te ,■ i"''' «'""'-*' *«-'•,
I K.) under V. s U ' ' t'.'^"i;-'t.v of I). („,-,,, „^
i Which goods this action ;;:, 1 "'■ ^''-^'l^tention of
, iJ'atth. statute -loe. lot en Id""^''" "^^'^'^^ '•
, """'to hin.l henself as to ■ \"""'-i^''l wo-
, 7te.1t than she was let 1 Tf^ ^'[ " ^''-'-'-''ter
thereof; -2. Thifin ''"'" '"^''"•^' the lussino'
!!y''.nan.icd';t;;,;t2;;v'"'''''"'^'"'-'S
J'':againstherwith It I, '."^"■?!o% will not
^"'^ l''■^ therein ',^^''';^'7'\'l'-''^Joiii^^^
W'th.n the province ' 1' 'V ""« '' '''-■^'''^t
l;f
I fflffiMnlF; '"
IG'Jl
HUSBAND AND WIFE.
U]'.y>
The pliiiiitil't' iluuLircd iipoii n. IhpiuI (latcd 4tli,
of .liiiiu, IcS.'iS, iiiiidu liy tlie (lutfiiiliint I.. I!, and
tnii otliL'i-.s, witliout lier hu.sliand, wlioii sdluaiid
uiimari'iLMl, liy tliu iiiuiii' of 1^. M., to tliu f^'over-
iior^'eiioral, for f,'{l)(), i-oiiditioiu'd for tliu duo
adiiiiiiistnitioii of tlie cst.iti! of A. M., :ilk';,'iiig
tlif issue of letters of adiiiiiiisLriitioii, that goods
and eliattels of A. M. amounting to t''_'.")() came
into liei' hands to lie a<lniinistered on the 1st
duly, KSri.S : that she wasted the same, and ilis-
jiosed tlierecpf to her own use ; and that the bond
was assigned, hy order of tlit; judge, to the
plaintiti' as trustee for the next of kin, who tlu're-
Ulion heeanie entitled to sue thei'eon, itc. After
assessment of damages <ui judgment hy default :
— Held, on motion liy defendants d. I!, and L. !!.
in arrest of judgment, that the ease eame within
see. IS (if ( '. S. r. ( '. e. 7.S : that her husband was
pidperly joined ; and that it was neeessary to
allege that the ciause of action aeerued before
marriage, and that sJie li.-id separate estate. Kir-
chujl'cry. /.'o.v-e/ »,/•., 1 1 ( '. I'. 4(i7.
Sec. 18 of ( '. S. ('.('. e. ~H, jipiilies only to eases
where judgment lias not been obtained against
the wonum before marriage. Ai/lcsiror/// v. J'a/-
(v,:ioii, '.n (). B. •-'(;!).
Tn an interpleader issue, the plaintili', a mar-
ried Woman, elaiuied goods sei/(!d under an exe-
cution against her hnsliand. it ainieared that
the property consisted of stoeU, farming imiile-
meuts, and growing ci'oiis, and wasseizeil upon a
farm on which she and her husband were living,
and which had been devised by the plaintill's
father to trustees for her beuelit, tile rents to bo
payable to her for her separate use ; and that
most of it, except the crops, had been purchased
by the husbaiKl at sales, but paid for by the
claimant <iut of the rents of other lands devised
in the same maimer. .She had been married
before the 4th of May, lS.")!t, without any settle-
ment : — Held, ill the absence of any evidence to
the contrary, that the reasonable presum[ition
was, that the husbaml was tenant of the land,
and, if so, the erojis would be his ; 2. As to the
other jiroperty, that a]iart from our statute it
would not be the claimant's nuirely because it
had been purchased by money which belonged
to her under the will ; ,S. 'I'liat as to the statute,
it should be construed as creating a settlement
before marriage in the terms of the tirst and
second sections ; and if in this case the projiertj'
was bought by the wife to en:ible her linsband to
carry on the farm fur his own benetit and that of
his wife and f.amily, it would be liable to satisfy
liisdebts. Lilt x.Voiiihk rclal liiiitic, 'lAi^. 15. ,5,52.
In the f'ounty Court it was left to the jury to
.say whether the jiroperty claimed did not belong
to the husband, behaving reduced it into posses-
sion : — Held, that this was an iiisutlieient direc-
tion, and that their attention should have been
drawn more explicitly to the ett'ect of the stat-
ute, to the presuiii]ition arising from the husbaml
being the head of the family, occupying ami
farming the land, to the use to which the jiro-
]ierty was [lut, and to the wife's apparent object
ill purchasing it. Ih.
The purpose of this act w>is to preserve to a I
married woman for her own use. and as her own |
estate, all her (>wn property which she had not :
disposed of expressly by a settlement, in like j
manner as if she li.ad secured it by a settlement. '
Liij.i d (/,('. v. McI'/o^r-iuH, 17 C. P. 2(30. i
L,, a few days before his uumii..,. \,, k,-
executed to his intended wife a hillnt'..,! . Z'''
"lid liiul it,l„l
furniture and household
liled.
It recited the iiiteii(h'il
V
'iiiunu;ji., ,in;i
that it had been agivcd that tl,c g,„„ls si,,,,,!,!!;
assigned to make .some (ir,, vision l„r tliu s,,,,, ,
of the intended wife, and imrpurtt.,! t„ l',,. T
111 pursuance of the said agiveiucnt hi,! i,, '
sideratloli <if ."is.
Utld, that llHl,ill,,iv,l,.?,"''
not a coi.ti-m.t or settleiucnt with.,, the „;„,„,:
l^:Ai*l'^::..^':^'^i,'''"'t""«^'vaii,it™:'
ifer <if the goods to the iutciuled w'liV.. i,,,,,
I marriage, and in ecmsiilcratioii „f jf . .„„| ., l
I her title to the goods was tlanx^niv \vl' ', ,/ f
inarriage took place, protected l.y H,, st„t„t .
' notwithstanding her coverture. //,. '
Held, that a married woman liaviiw seinnt,,
real propertyisii.it entitled liv this ad tl, ,
tract debts lor its iiuprdveiueiit su a-
herself liable individually, (A. \Vi|s,',i,, .|, ,ij,, ,
I i.m,.
iiii,kc
le j
IM.l li.l
jiiilgmcnt aaiiiistl
KJllgj
or jointly with her husbrind. IIV;,,/,/ v
I 'J'he declaration alleged tliat the w„i„ai, i„„-
ried betore the 4tli .May, |S.-|<(, witlimu a .^ti,
nient, ami having separate real estate, ami nC
her marriage emphiyed tlu^ lilaiutilf tn ivii in
house on it, f,ir which iieithc' she ii(,r Iv,' i,ii<
baud would pay : -Held, im drimiih,,', tlut'ti"
action would not lie. //;.
L. and his wife, who had marriiil in Isi;.", i,,.
covered judgment in the Division ( '(nut a-'i'iust
B., for rent due to .Mrs. 1,., m, laud whiri
had inherited from her father ii, JS.'i;.'
on the same day recovered
L. for a larger sum : Held, tli'iit ^Irs
entitled under the act to the rent a.s licr nwir
and her husband joined in the action tor t"innr'
mity only, there could lie no sct-on'ai,'ai„..;t it,jf|
H. 's judgment against L. .Such sct-olf havii,
been directed in tlie Division Court, aniamlaiaui
was granted to the clerk, to issue uxeciti ml
the judgment recovered by .Mrs. L. /„ ,-, /,;,|.
llt'll <■/ »./'. v. IlllchdHtllt, ■_".) (}. Ii. 1
A woin.an had been long in iiossessiiiii nf cliat
tels said (but not proved) to have lioi'i, luft tn liei
by her ilecejiseil husband, ami using tluiiiwitl
her children. She then iiiarrieil the cn-plaiiitil
These goods were seized by a creditor of his
Held, that her title before inarriage was \\xm\
facie sutHeient, and after her secoinl iiiaiTia;'f thj
goods were protected, under the act, against hi
second husband's creditors. ('nrr'v' it nl.
C/carn- it III., 21 C. P. ISti.
A married woman who was ei|iiitalilyuiititl
as cestui cpie trust, tii a life estate in celt
lands, joined witii her hushaud in a iinte uii
which judgment was recovered against tliei
Thereupon the plaintilf in the action tileil a bij
seeking to enforce his claiii, against tl,c title
the wife : Held, that the act had not the elii
of increasing the interest of the wif.' so tn
render her estate liable I'or the delit. //
CaiKii/iaii Binilc v. J/itrhil!, 14 Chy. 4lL'.
A married woman who has sepaiate es
which is vested in trustees, cannot on that
count be sued for a legal debt contraelei! bef(
her marriage. In such a case a creditnr Iwa
locus .standi in eijuity, until lie has nhtiiil
judgment at law. Chiniilirrliiiii v, Mflknii
14 Chy. 447.
Qua're, whether a married woman has any
what jus (lisponeudi hi respect/il lier iievsi
UVJ2
s m;UTi;i^o, in lsi;.\
■\U: a liill 111 s;iUmiI lijs
(mills, iilnl liuil it i\nly
ti'iiili'il iiiiuiia;40, uiul
ilt tlu' J^nUlU sllliulill,|.
ivisimi luv tliu Miinmrt
))\iriiiirtiMl tu lie luii.lt;
ai^rrriufiit anil in (.■iiu-
tliat till' liill 111 falexviii
M>t within tliu nu-'anin)^
Imt was a valiil ti'iuis-
; iiitt'inU'il wiif liulori'
.■nitiiin I if it ; anil tli;it
■A^ tlifvi't'iivf, wlicn till'
iitPftuil liy tlic statute,
crturu. III.
wniuau havinij sqmrate
itIiMl liy tliis ai't tu inn-
I'livfiuoiit sii as tu iiiukc
lly, (A. Wilson, •!. ilis^.l
liaiicl. IIVi'i;/i/ V. ti'ri/'/w( 1
oil that the wmnaii ui;>r- i
V, IS.V.t, withmit a<ittlf-j
I-atL' ival fstati', ami alter j
[ the )ilaintill' tu ri'ji.iv.ll
iR'itlii'V slu' uur li.i.'V !iuj-.
■Ill, nil ikiimrrui', that tliej
Ih. [
II liail manii'il in ISiu.rc-l
tho Oivisimi t'liuvt a-:iiii-tl
h's. 1-., oil hiiiil wliii-h-hej
v\- lathi'V ill IH.VJ, lUi'l 11.1
ivfVfil a iuil;;im'iit a-aiiisti
Ikhl, tliat Mrs, !,. liiiiigl
ii;t to till' iviit a.s Irt "WiiJ
L'll ill tho ai'tiiiiifurii'MiiiH
,,11,0 iii.sct-iilVatfiin.-titofl
>t 1-. SiK'h sot-iilV having
)ivisioii('oui't, aiimnilaiang
•U'l-k, to issue uXLTntiiiiiiinjj
.,1 l>y Ml'''- !■■ '" '■■ '-'"^
II, -Jui Q. I'' !•
1,1111' in iiiissessiim ui ih»tj
■,.,l) to have heen left t-hej
iiauil, ami using tluiii witj
Lii marrieil the iMi-i.lauitiffi
'/oil Uy a ereilitui- 111 hi> :-
,,^f,„.o' iiiavria.L'e. was vnml
I'tovliei-secniilmavna-etM
I, uu.ler the aet, against li^
clitors. '-'"■'■"' '' "'■
,'. I8(i.
Lho was e-iuitahly entitled
1 to a life estate m eei-taH
i.,- liusliaiiil ill :n'"t'^' "l*
reeovoreil against then
lilV ill tlioaetiiiulileil;iba
;olaiiii against the title ,
It the aet hail nut the ettM
lorost of the wil- ^"fj
ll.lo for the ileht /e'»
L who lias seliavate es
lustoos, eanuut uii thatl
Lai ilol.t o.iiitraeteu .etq
\l ,v ease a ereilitiir hasj
itv, until he hasoli aiB
.,ai-ne.Uvoiuauhasanyi
liu rcsi.cct/.i iKT r"«
l(i'j3
HUSBAND AND WIl-'E.
tlio Act. cIiiiikIii rliilii V. .1/'
1(594
ijctimi I
(VJilfiiee
sivii'l-'
'„„;„,/,/, UU.y. 44,.
riiiler this aet, a fcnio covort \yfts hulil com- 1
( tu hi'"' '""■ i"t^-'''^'**t as rcsiiluai-y k';^'atco
r, Iii,r written authority to oxcoutors. given ami.
• 1 ,,„„, ill g I faith, to aoocpt laml in .satis-
f ,'i ileht due to tlio estate, without
of the linsliaml having oonourioil in
the authority. Mi-Cunjor v. MrKiniinit,
IjCli.V-t'i'-
The act lilies not exempt personal property of
jMilewliu «as iiiarrioil on or lieforo the 4tli
,| m;,i|, i'i-,ini lialiility I'ordelits contr.ietod liy
4.' lius'ha'nil hefiiro that date. W'lu're a wife,
iwwiuarrieil before the 4th May, lS."i!), ]iiir-
laseil after that date [iroiierty in her own name,
iBil will fol' it (:i« "^^'-'s* alleged) with luoiioy
tkretiifore given to her hy iier son, it was hold,
ijliitween her and a creditor of lior liiisliaiid,
Aise ileht was oontractod lieforo the 4th .May,
Mil tliat nidiiev .so given to the wife lieoanie
instantly her Ir
liinl liuught wit
frti.tfc V. ll'dlin
,id'.s money, and that tiie
was lialilo to the eroditor.
HiChv. I(»l.
\ iWvisc hy a married wnniaii of iiro]iorty
I ,yi was her separate estate, Imt of which her
i iiiikiiiil liailheeii in piissessimi hel'ore the 4tli of
Slav. IS.'i'.l, was lield to lie good. AV ilil/ikir, \
I jtiiy, C'liaiuh. 7l.'.--Mowat.
The .statute docs not authorize a inarriod wo-
Imii.^diii has any oiiild or childroii, to ilovise
,,rliti|iieath her ]iroporty otherwise than to or
I aii'U:' siK'li child or children ; any dis|ii)sition
uiaviiiii' either of her liusliandorotlicr parties is
|t(i.l, ilMill y. W'ir. lit t'hy. ,")(;S.
\(lliiliiuiii!iy. Pciiiiod; 331^1-?. 2-29, p. UiTT.
[Sec next subdioad. ]
i 7> ('(-.'(/»•<»»(/((• .<'■( 17(7. ('. II!.
iffiiiiuliijoi'lKlifii I) }lii.<hiinil (iiiil Wifi . ] --'riio
Ifoilitiesiil a married woman, are not removed
ikrtceut legislation to such an extent as to eii-
liiklitrtoaet as prochein amy. (I'ili-sy. U'li-
hum. (i i'. li. 70.— C. !.. Cliaml). -Dalton, t.
.\iii;uTieil wunian linmglit a suit in iier own
limieturreilemiitioiiof lands in which slie claimed
((State fur life under a lease made in ISUd : —
iBtU, nut lior separate property, so as to enable
liirtdsue withuut a next friend under 'A'l ^"ict.
Itlfi, s, ',1. Uniinnit V. Jiriiirii.^niiiil)!', (J 1'. 1*.
IR-l'liy. I'liaiuh. — Holmested, llij'i m .
.Imairieil wnniaii, married in 1S70, who h.ul
|T,;liiiiitaiiy just cause left her husband's house,
Ittlwas living apart, demanded from him eliat-
jliiiiiilluiiwehiihl furniture which, having been
Ik [imin'i'ty hefore mirriagc, came into liisjios-
simi iiliiiu anil hy virtue oi the marriage, and
iWWtu usuil hy them jointly in his dwelling
(«if,aiiiliiiihisrefus,al brought trover :■ Meld,
liett, S, r. ('. 0. 73, and 3') Vict. c. K;, that
sictiinitimililnot be maiutaine<l. Mriiiiin v.
\ii<iwKi^C, ?. 1-23.
\Ui that muler 35 Vict. c. 1(5, s. 1. (>., a
friwl woman can maintain an action for lier
fijts, laiiital whilst living with her husband,
nasagi'ut of the defeiulants employeel her;
and that her husband is'a eom]ietcnt witness iii
her behalf. M<( 'ninhj v. Ticril nl., '24 ('. P. 101.
Sec. 1 of 35 Viet. e. Hi, so far as regards "the
real t'.statc of any married woman which is owned
by her at the time of her marriage," .aiiiilios only
to mari'iages whieh take idaoe after the jiassing
of the aet. Where, therefnre, the plaiiitill', wlio
married in IS.")!, h.ul lived upon the land iit
ipiestion, which was his wife's property, from
IS5'J niitil IS(il, and had then jnined with liiK
wife in a lease to dofondaiit for ton years ; -
Hold, that on the expiration of such lease the
plaintill alone might maiiit.iiu ejeetmont. Diiiii-
iiiini V. Aii.'<fiii, 33 {}. H. 1!HI.
The aet of 35 \'iot. o. Hi, (»., which gives
power to a married woman in certain cases to
sue ami bo sued alone, does not jtrovent her
husband being ooiisidort'il as dominus litis, .ami
the suit his suit, if she join him as a party jihiin-
till ; nor does it obviate the necessity for a next
friend in order to bind her. //( .S'. uiii/ .1/., ,S(>H-
ci/iirn, 8 L. .1. .\. S. L'45. Chy, Cliainb -Spragge.
Married women joined w itli their husbands in
an a|iplieatioii for taxation of costs : Hold, that
notwithstanding the late act (35 N'iet. 0. Hi, ) the
married women must, in such ease, have a next
friend. /// ci S/ji /icir ( / nl., lOChy. 4(!7.
.■ir/inih< iiiiniiixl 1 1 iisIkiiiiI mill H';/'.!-- Under
the Marrioii Woman's .Vet, 187-. a wife may be
the sole defendant in ejoetmoiit brought to reco-
ver possession of land owned by her husband,
who is permanently resident out of the province.
Wan-Ill V. fiitlrriil, (> V. W. 1 1.- f. 1,. Chamb.
— Dalton, ('. C. .c r.
Hehl, that umler 35 Vict. c. l(i, s. !), <)., an
action at law may be maintained against a mar-
ried woman in respect of a debt inoiirrod by her
upon the faith of her separate estate before the
passing of the act : H.igarty, V. .]., diss., on the
I ground that section !l apiilios only to debts in-
: eurrod after the passing of the act. Mirrkk v.
' S/nririioil, 'J'.' C. 1'. 4(i7.
'i>ua>rc, as to the moans of enforcing the judg-
I ment in such an action, whore the sojiarato estate
; consists of money to bo paid into her hands by
, tnistocs. //i.
i Held, that during her hu.sbaiid's imprisoiimenfc
for felony, the wife could contract at all events
as to what might be regarded as goods and
chattels as a feme sole, ('rur/crr d n.r. v. Soio
[den I'fai., 33 <.i. 15. 3!)7.
I lender 35 Vict. c. Hi, <)., a married woman is
i liable only upon contracts entered into icn the
i eredit of her se]iarate estate. J/rCn mli/ it nl. v.
I lliijithi.i, -lA ( '. 1'. •_'33.
The real estate of a woman married before
1S5!I, not settled by any marriage settlement or
; deed, is not her separate estate ; ami sec. 1 of
35 \'iet. e. l(i, whieh ainilics only to marriages
after th.it aet, docs not make it so. Whore the
plaintill's furnished goods for such a married wo-
, man, having such real estate, upon the strengtli.
of her having it, and took her bond, without the
consent or concurrence of ln;r hnsbaud ; -Held,
i that she was not liable npon it under 35 Vict. c.
i 1(5, during her husband's lifetime. //'.
Declaration on a contract by plaintill' to build
a house for defendant, alleging completion and
non-payment ; and un the common counts. Flea,
HUSBAND AXD WIFE.
'■iiiil inni,
''■"111 this lialiilitv
ri'idii'iitiiin j,'imiiI, I'm- tluit tlii' Miiiriii'il \\ (niuiirs
Act lit' IH''^, sec. !l, was lLti(is['t'i.tivi;. Slii/sy.
llulbntiu, ;(3Q. H. 471.
Semlili', till' rij,'lit tiisttc j^ivi'ii liy.S.") N'ict. <•. I(i,
s. !(, is a iiitTc inatti'V ol jirdi'i'diiri', ami iinjiii.si's
no new lialtility cm tlie mari'iwl woman. ///.
fn ail action against a iiiarricil woiiian on a
lioto, it is Niitlicu'iit to [ilcail uktcIv that the note
was inailc lictoii' tlicjiassing of ,'{") Vict. c. Hi ().,
Jinil that siic was tiicn inairicd, witliont rcgaril-
iiig the tact of her having sc[)aratc estate aiitl
having contracted the (lcl)t on tiic faitii of it ;
but such matters are the .sulijeet of a replication.
Fit Id V. M,- Arthur, 'J5 ('. r.KiT.
A iiiurried woman owned hind under the will
of lier father who died in 18(1"), having devised
all his real estate to his widow for life, ami on
her (leatii, to liis children in fee. Hy deed of
partition hetween his daughters, of whom the ,
defendant, who married in IfSlio was one, and to j the jiortions of the at't whicli liavc luit this tile, t
■which defendant's luisliand and the widow were j should go into o]icration as reganl.s Wdiinn wm.
;|)arties, certain lots were conveyed to defendant lii'd before, as well as after, tlie •Jiul uf M;u\li
in severalty, "to and for her separate use for 1 87-. AduiiiK \, I.ikuh'is, '^'H'Vy. W, '
ever." |)efendant's hiiH))andein])loyed the plain-
renders married women lialile fur ti'iiii- sep.,,'.' ,
engagements in certain cases : .(I,,],! \^^!^^ '"'^^
8 of this act not being ai,plical,l,. t„,|'„, ' J''''^
ca.se. 111 which tiie "liirriage toukphui. l,,t',rJ
pa.ssnig ol tile act, the otiu-r , sections ,ii,i ,.,,
alter tli.^ above rule. It beiiiu shrwi, th.it tl,','
inarned woman was a woman of ^^n.^t fm ■. ■
character, and not in fact iiiider tTic'uuntrl'i '•■
her husband : Held, that this hus mi insiiffi
cieiit reason tor exempting the hiisl,
attachment. 'J"o litMlisc hailed
he must satisfy the court '"that he h:is i,su,lhw
best ' ■ ''-- - ' ' ■
1 . I • . ^ , . ."' """ i'»"l Ills
best endeavours to get his wife tcj iihcvtlr
order. Miirrlicimi v. />>.«„/„„., C p. |;. \-^^i, _^^■^^^^ :
t'liamb. -Holmested, yiV/'cc,,. 'j
Sciiibie, that such iinrtimis of the Mminl
Woman's Property Act, 1S7-.', as wunl,r,li.|„jve
parties ot their vested rigiits, if held tn all,^.|;
women married before its passing, slumlil 'l,,,^,,.
-cad as not to interfere with siui'i ri;;lits ; whilJ
liiveiK.tthistifnt,
^Ii^>> .•-».n_i.'i.i»»iv -J ■■lI•>•'II.l■Il^.tl■|rl1'■1„1|.m(V I/I (till
till' to builil on this land, and tiie plaintiti' ren-
dered his account to the luisliand, knowing
nothing so far as appeared of defend iiit in the
matter :- Held, that tiie defendant was not
liable; for altliough the land was her si')iarate
estate, it could
I
XI. Ai.nioNv.
Jiir'isdh-lhiii ii/llir Ciiiiii n/ ('liiini'i rii.
^ - ■: ■• 1 -, I'iic Court of t'liancery having since it.- liiil^
net lie said that tliis work was establishment (18.S7) exercised jiiiisiiietiini in
done at her reipicst or on her credit, or that there : eases of alimony, refused to ipicstidii tliu lilill
done at her reipicst or on her credit, or that there : eases of alimimy, refused to ipicstic
■was any eontiact with her. Wajiii r v. JiJ'i r- Soidis v. .Soii/i.^, '2 ( 'hy. "J!)!).
nvn, 37 il- li. •"■>1. ,, 1 11 r 1- , ,
On a hill for aliiiiiniy and the custncly oil
To a bill against a marrieii woman to set aside children under twelve, tlie coiiit ciui tniiit tlj
a mortgage made to her, on the ground that the latter relief wiiliout a petition. Miiiiru\. .l/,-„,-(
same was fraudiileiit as against creditors, the j 15 Cliy. 4."il.
husband was made a party defendant :— Held, i '
on demurrer, that since the passing of the Mar- I > ii- •
rieiMVoman's Property Act, I S7'2. the husband "• "''''';/ -''''■''■^■^
was not a nccess;irv or proper party. Senible, I Although the L*L' \"ict. e. :!."), s. 'J, ((!..'>. I', (.c
that such a dealing on the part of a married ' -■!■, s. 10) authorizes the arrest of a dufeiulant io;
woman, was a "tort," within the meaning of
the above act, for which she could be proceeded
against as if iimiiarried. Mit'itrhiiir \. Miir/iln/,
21 Chy. SO.
Ill a proceeding against a married woman to
(d)taiii a eiinveyance of property vested in her,
it is not necessary to join her hushand as aparty.
Where, therefore, a trader in ciintemiilation of
insolvency had ]iiiicliaseil l.iiids, the conveyance
of w liicli he took in his wife's name, witli the
fraudulent design of withdrawing [lart of iiis
estate from his creditors, and thereiiiion a bill
two years' allowance for future aliininiy and ,
rears, still, if the court has olitjiiiieiifiiinlsi
the defendant tjiroiigh any default nf iiis, it ma]
refuse iiayment of them to iiiiii witliiiiit lin
securing the future paviiieiit of alimimv.
V. (;<!», 10 Chy. .')•»;).
The court in im alimony .suit, uii iuimtinii)
discharge defendant from arrest iiiiiler a wiiti
arrest, will look into the meritsuf tlR'ascsufd
as to enable it to judge whether tiie ]ihiiiit;ll >
reasonably expect to succeed in her case, anill
lot, or if defendant displace the piiiiiii faiii' ca
ll.'lll illO ,^ I \^" tlL'l 'I ■"", IklKl l/ll^l ClI III 'II (b lllll li'.^, .'1 II < l,.-!..!!! 1(111 b 1II..| '1<1\ V I 1 I V- [UIJ
was tiled by the otilcial assignee for the ]iiirpiise made by her on olitaiiiiiig the writ, he wi
of obtaining a eon veyanee or sale of the proiierty, j discharged. Mnr/i/a rKan v. .!/i'cy>/«/'.v.iw, iM'li;
^ -'•■■'■ ■■" -'■ ' ' ' ' -.-I'M 1. ■>■'•> .-Spragge.
to which hill the husiiand was made a party
defendant, the i;ourt allowed a deinnrrer thereto
by the luisliand, on the ground that he was not
a necessarv party. IUhihIkuI \. H'/iitmuric/ii.r.,
U'i t'hy. L'L'-i.
A married women, a defendant, living with
her luisliand, was ordered as administratrix of a
former husband, to bring certain accounts into
I'hamli.
A writ of arrest had been gniiitid mi iilaiiitiB
■ alliilavit, alleging violence and ill-tRatiiKiit ;
defendant, and shewing that lie hail ailviitil
I his stock and fanning iiiiiilemeiits for sale,
miition ■''as made to set aside this writ, ami
cruelty ■ is denied. The plaiiitilf was sliowi
be a J'''iiJ.j, robust woman, the di.'l'emlaiit aiil
imi I : 1 •
IGDG
it ill wliiili liii' jiKsnn
cdilfli'iuluiit, (111 ail-
■(IV ilisiiliciliciKi; lit tli>'
hat till' rulr l;iii( ,l,,\vii
'hy.<'li;iiMli.',il,tli!ittli,;
r tin- wiles ilclaiilt nu-
ll (if I'XiMiiiitiiui, Wiis in
Vict. c. Hi, (>., wliicl,
liiililc till- tln'ir sf|iiiratt
caso : IKlil, tliiitsiv.
iqHilic-alili' tiiUiu \iri.'si.iit
llgu tiiiili |ilai.i'lK;tiiri;tlle
,' (itlicr sci'tiiiii.s iliil imt
It lu'iiiy slicwu tliattlie
wiiiiiaii iif ^i\'at fnivu of
'iu-t uiuUt till' I'liiitrul lit
;U:it tliis was an insiilli-
iptiiii^ tin: Imsliaiiil trum '
.•liiiljii'il t'liuii tliislialiility
itirt tliiit 111; lias iisi'il hia 1
ut liis wilo til (iliev tlie I
,„,„/M.i,(i I'. U. ISS.-Vliv.
/iVi/ii.
portiima <if tlic ManiMl 1
:'.t, KS7-. as wiitilil ilijnive I
il'riglits, if lu'lil til al!«t|
its (lassiiii^, sliiiiilil !»■ Ml
re with siK'ii fights ; wink
, whifli liavu nut tins ill'irt,]
iiiii as i-i.';4arils wuuiin iiuir-I
vs aftfi', the -nil uf Mari.li,j
,«i;.s, ■J-.M'hy.W.
Alimony.
fllir ( \iiiv> iif i'hiiiif' nj.
iiuery having since it.- livsti
1) fxurcisi^d juvisiliL-timi iK
isfil to iiuustiim thu vi-^ht.j
Iiniiny :ii»l *'"■' ''""'^'"'y "I
c, the I'oiii't '■!'" f-'''i'"t 'M
jjutitiou. J/w"'-(iV. J/iuii'oJ
|ii.t."...:«,«.^.(<-',^'|'''V-
heanvstof ailolcnaanttoi
fiif future alinioiiy ami
,urt has iihtaiui'il fuii.ls (
haiiy.Vfaultiillii^, it'1'4
1,1,,,,' to liiii" witlii'iit iirr
■lavnieiit of alinuiuy. 0'«
i„„iuy :-.uit. i.n aiiiiiti-ut
rum arrest unilera«nt<
the merits iiftliocW'M
re whether the lihuntill c^
~uc,.fe.l in her ease, ami 1
isnlaee the livUlKi laeli; J'S
■ the writ, he will
. .l/,(.y//H)viH, -'I
liiuii
ly.Mi/i V
Ke.
raiiti;il nil I'hiiiitifl
lOOl
lIUSB.VNr) AND WIKK
1 »)9iS
(if si\tv I'i^'hl ; rtiiil tiio eKiiiliiel of the witliimt any ciiiiiimiiiii'iitidii hnviiij,' piVK.st'il from
f'tiH'ti' have lieen vinleiil ami very iimnoral lier to her liiisl);iiiil, or any iiitimatioii of .ideniro
'I'l .1 J !•. .I.ifi.ii.l .1 II t '^ .liiiii.il .,(' 'iiiir ill. fill lii,i> ii'ii'f (,, i-,iiiii\i- fliiiii' iii!ii<it!il I'liint ii iiiu mill
Mill WW
Itntiiiii
inlcrt'l t" '"
hwte.
til leave
On ilefeiidant's ileuial of any in- on lier [lart to renew their marital reliit
the 1
set aside.
irovniee,
I Ik
tl
le writ wa.s without any olli'r to livt
ions, (till
e witli mm, or any ex-
1'
I'ssion of w illini'ness tu do so, lilcd a hill for
Vuee and iU-treatmeii
L„ that he Iw'l "'l^',''"
l„f implements till- sale
"t aside this Nvnt. |ii"l
The^laiutitl■^va*slle^vl>J
„„aulthedcfeuaantiiu«"
liniony on the ^r
mil of
.■rtioii : II(d(l, that
Aiiielllll
;(. H'ciV of A'< K
if li.iil on iHHiio of writ of ne e\eat
the alisenee of an oH'ir on lier part to return
to her liusliand, and ;i refiis.il hv him to roeeivc.
ni
haek
nil'
iiiiiiiiiiy'
Chiiiiih'
Thcwri
ni, lll'l
ler 'JO Viet. c. .VS, n. :<, in a suit for
//,•-•» v.
■<ipraj,¥e.
tiif
//(I
4 I,. .1. illil. Chy.
alimonv ; that the
herd
u^ w;is not in a ]iosition
to ehi
de
ile of
lier liUHitand was
omii'ile ah
ue exe
„nniiliiiii'i'y ^."
and that his liciuj,' resident in
the I'nited States alVordid no ^'rouml for dis-
jnensinu with an oiler hy her to return to and
at ;;ranteil after lilinj.' a hill ' live with her liusliand, it not a|i|iearinj,' that she
was ignorant of his |il.iie of residonee. h'lln'unli
it, remains in Imee alter deeree
I it IS 11"
ilijeetion that tin; wife resides mit of , v,
tlif jiirisi
,.itlie'
lietioii, asilunn^' ei
ivertnre tliedomu i
liushand is the doinieileof the wife, J/m
Tlr
•'/■s -JO ( '
i.V'
;t!i
sias
lldlKlK V
MiiohiiKiliI, .") I-. J. lit), l-'hy
tieal
itt
eoiiits in I'aij^land will not
the wife
itled to a
III |iei'siinal violenei
laraiion a niei
this eourt, followiiiL; th
not, as a rii
le, f
or only 0110 at
'1. Will II iii-iiiiUil.
I ileeree lor
ml
same iirineiple, will
t of violi-nee make
lere a liusliand had
deela
la
(a) VV
M'liiiiii inn
I C
' Idj-
tor sever.'U years indiil
tin
Ihitw
'111 in the use of intoxiea-
ig lii|Uors to sueh an extent as to have pro-
!lilil,tlii»t under the eirenmstanees set out in dueed repea
ted attaeks of di'liriiiin tromeii-s,
this (*'C',
foraliiw'ny.
ofikscrtiiui liy
ker; still.
the wife was entitled to a deeree : diirin
hii'l
I he lieeaiiie veiy violent ; am
1 \\M
kw restitution
I tWilfsi'i-tiiiii won
Although in Kn!,daiiil the mere faet wife had, on one iiieasion when he heeainu in-
hy the hushaiid would not so entitle toxieated, lieeii eomiielled liy reason of hi.s viii-
iiirt eaiinot lenee to lejive liniiie and go to a neighhonr's
use, w here she remained all iiijiht, ami 011 tho
m tins eoitii
try th
if eoiijngal rights ; Semlile.
Id he sullieieiit to warrant a
foil
owing day, in eoinpany w ith two of her neigh -
i|„roe fur alimony.
Sin rii. v.
IH'hy. -KU. '■ hours, had returned to her liusliand with a v
lew
iK'sertiiiii,
altlioiigh insnllieient in itself to
if indueing him to alistain from drinking, when
I larniiit a ileeree in Kngland, does, when eou|ileil
with ntlier nets of cruelty, form a material iiigre-
I fat ill iletonnining a wife's right to relief. Hi.
Where a few days after leaving her hnsliamrs
hinisi', the wife was found with severe hriiises
I mil i'lijiiries upon her ])er.son, and the evideiiee
tji*il ii strung presumption that they were
jiitcil liy him, t-he eonrt doereud alimony.
I W.«« V. './"(■/■-■"», 8 Chy. 4i»t».
The wife must prove herself aggrieved, or the
I (iwt iwiiiot ileeree alimony. NVliere defendant
liisanswenleiiieil tlii^ eruelty charged against
I liui, ami it was not proved, luit at the hearing
taiiiilaiit eiiiiseiited to a deeret! foralinioiiy, the
I uurt, 1111 the grounds of pnlilie imlicy, refused
I (.Miitirfeie. Uriii-iij v, (/niriil, 17 < 'hy. ll,'{.
lsn(Viii>;v. (,'niiij, I Chy. Chauih. -tl.
.Uvuiiiaii tiled a hill for alimony on the ground
111 ailultery ami desertion, which suit was ulti-
lutflyaiiiuigeil hy the liushand agreeing to pay
isniiiiif iiiiiiiey, which the |)laiiitiH' accepted in i
pjymciit iif all pjustor future claims for alinioiiy ; |
mil a ileeree wax drawn up stating this arrange !
Kilt, ami that it was agreed to disnii.ss the hill ; j
mil that sueh ilisiiiissal slionld he treated as a
ili(iims,al nil the merits : Held, that such deeree |
hraislieil 111! ilofenee to a hill afterw ards liled hy ;
lilt wife fur aliimuiy on the groniid of siihse- |
jneiit ile-sertiiin ami adultery. Ili inli r-mu v. 5
Ultm, IllChy. 4(i4. i
, . i
,\ OTiiiaii left her liushand in conse(|nt-nce ol ;
Ifcgreemeiits, without any threats of personal |
liiileiicc, (ir any well founded ajiprehension on j
npart uf violenee ; and the hnsliand exiiressed '
ftisiwliiiess and willingness to receive her haek.
wife failed to return, however, ami the
left this province and went to reside
luciitly ill the United litatca. Thu wife,
1U7
ral
he a.ssanlteil her with a sticU, iiiMieting sever?
hlows on her head ; wliercu|ion she ran away
and he followed her, kicked at her, and told her
to he gone, and iitherw ise londiictcd himself in
a \ery yioh'iit maiiiicr, altliough this was the
only iiist.incc in w liich he had, during eighteen
years they had been married, ever strncK. her,
the court made a decrci^ for alimony, the wife
swelling tli,i| she was appreheiisivi- of further
ill-treatment if she were to return to live with
her liushand ; which decree on rehearing wan
.illirmcd hy the full court, liudniiiii v. Jtiii/niaii,
•JO Chy. 4J8.
Where with a view of ohtaiiiing a decree for
aliinony it is desired to give evideiiei? of variiuis
acts of violence hy the hnsliand, it is neeessary
to set forth such acts specilieally in the hill, in
order that the liushand may hay(^ notice of tlio
acts charged against him, and so that he may, if
he can, adduce evidence in lelmttal or explana-
tion thereof; and this rule cannot he said tii
iijicrate ii|ipressively upon the w ile, as the facts
and circiinistaliccs chaiged, if true, must be all
within her knowledge ///.
(!■* iiili rim MhiHtiiji
Semble, that the eonrt wil
ease, \iendelite lite. Soilli < v
grant it in a lU'oper
Swdix, aChy. 118.
Where in a suit for a separate niaintenaneu
interim aliinony had not been ai>idied for, the
eonrt refused to allow alimony fnuii a date before
making the decree. Ih.
On an a()plication for an order for interini ali-
mony, the allidavit as to the marriage should
state such iiarticulars (by whom .solemnized, kc.)
that the eourt may judge whether it has been
duly solemnized or not. Tuiiloi' v, Tajlor, \
Cliy. C'liaiub. 234, — iSpraygc.
i^:f I:*
1
'',>
! 1'.
1699
On nil n|)|ili(<atiiii) I'nr interim iilinidiiy uiiil
coHtH, iircMif (if tlu! iii!in'iii),'f Ih all tliiit is ivcuiircil ;
it iH not iic'THHiiry to [irovi! uiiy <>( tlu' otlicr
iillcgiitiiiMH in the liill. Xn/an v. Sulnii, I t'liy.
< 'li.'iinl). .S(W. Spraggo.
In an tvliniony (niho wlicru tlie niurriagt^ w
admitted, or jirovud, interim alimmiy will l)c
granted almoHt aH of cunrsi', tliougli defendant
Hwoars lie iH willing to receive and niaintain tlii^
plaintitr. dirr v. Ctiir, •_' t'liy. ('Iiandi. 71.
Taylor, Smrftir//.
Interim alimony will lie granted on prinu'i
faeiu jiroof of iniirriagc, altliougli tlu' validity of
the marriage is di.Mpnted. Mi-ilmtli v. Mi(,'riit/i,
'2 Chy. Chamli. 41 1. Taylor, Strn/nri/.
On an a|)]ilieation for interim alimony, i\w
valitlity of the allegeil marriage cannot lie tried.
If a marriage de faeto in iiroved, it in Mnllieient.
Hut the plaintiir nnint nliew .she is in want of
means of Hupiiort. When the parties had lieen
living separate for four years, and the wife did
not allege she was in want, and the husliand
swore she was lietter off than he was, an order
was refused. Jini'llci/ v. JinnUi //, ;t ( 'hy. Chainb.
32y.-- Taylor, /.V/'rc'..
Interim alimony runs from the time of the
service of the liill, if there has lieen no want of
ililigenee on the plaintiir'.s |iart in making the
apiiTieation. Ilnnw. /lum , 'M'Uy. ('hand). t'.M.
—Boyd, Atd.ilir,
A plaintitr makes out ;ij[irima faeie ease for
interim alimony liy pniducing (I) an otliee eopy
of the liill (which need not lie verilicd liy allid.'i-
vit), and ('_') proof of marriage ; Imt if the de-
fendant o|ijKise the a]iplication on the ground
that the jilaintitl' has aniplt! nutans of sup[iort,
unless she can shew the contrary to lie the case
her application will he refused. Smi/h v. Smil/i,
() ]'■ H. r)l. Chy. Chanili. -Strong, on appeal
from llolmested, I'tfinr.
The (juestion wlietlier the ])laintitr has been
guilty of adultery eannot lie raiseil on an appli-
cation for interim alimony, ('iiiit/ilii /I y. I'lniip-
lirM, () I'. R. IL'S. Chy <'hamli. llolmested,
The fact that the plaintilV has left the <lefen-
dant, and refuses to return to him although he
ia willing to take her hack to live w ith him, is
no answer to an application for interim alimony.
WiLtnnv. W'lhuii, (i I'. It. I2!». Chy. Ciiand)."-
Holniested, Jtifirci:
An omission to make the endorsement directed
1)y consolidated order 488 to lie niaile ujion the
otfice co]iy of the hill served, does not disentitle
the plaintitl' to ajiply on nuition for inttM'im ali-
mony, hut is a ((Uestion niert^lyaH'ecting the costs
of the motion l^-tiVKan v. I'llcivmi, (i I'. 1{. I")0.
' — Strong, on appeal from llohncstcd, Ucfcnr.
Where a plaintifl' had neglected to proceeil to
A hearing at the first hearing term after i.ssue
joined, it was held that this was no liar to her
obtaining interim alimony ; it appearing that the
neglect wa.s owing to a mere sli]i on the part of
her solicitor, that she had a lion;\ tide intention
to go to a hearing, and had made otters to change
the venue, with a view to enable the cause to be
BlJeedily heard. Ih,
The usual undertaking given by the plaintifl'
on obtaining thu orUur for interim alimony,
IlITSIlANn AND WIFK.
(viz., to proceed to a hearing at tl
tllr
falli
17(
sittings,) was extemled to the \\n\ '""''"'''•^
wher.^ the defen.lant had fail,,!, ,,,„i "^ '''«!'•
refused to jiay interim aliuKniv iiii,l .i; i •
incuts which he hail been ihn rtiij tn hii- i,
slaiiuh v. /l<„r..</,n„jh, (i I'. |!, •.-()() rLr/T
llolmested, l,''jh;r. ").H,,i,nl,
(c) OHlrr ('„.■<,. ^.
Where it appeared that the ,,lai„t,ff', ;,|„,,„,,,
from her husband s residcMe,. \ias vuluiitiry ,
caused .•hietly by her own ^ inhnt t.iniVr'r
that her husband was still williii;^ tn nr'ivi.
sujiport her, the court diHnii.-.M'(l lli,. lij||'"')I"l |
ordereil defendant to pay inits 1/,A,(,, ■■' t/
A'.///, (i Chy. ;iSO. ' ' '"
The right of a wife is t,i reside uitli li.r hu
'«ii'l ill l>i«l> «'. "I' in the j.mit 1, „f i,„,|j
I ^^'I'V'; therefore, It .•,pp,.ared that the l,u.l,a,„i
resided with his children by a fonii,!- wif,. ui.l
compelled his wife to live at Iih1;;|ii;l.s tlir oiiiri
I although no viidence or otlu r ill tivatinnit vu\
shi'wn, made a decree for aliiiKiny ; aiul di'i* I
although it was shewn that diinny s'uclitiiin.tLl
husband had been in the habit (if visitiim .uiill
remaining with his wife. W'lir v '" '' ' ■
")(!.').
A bill for alimony slionld alle;,'e timt tlii'liiu.l
band has refused to receive his \vil'|.. It i< nntf
sutlieieiit to allege merely that lliey aiv Inn
a|iart. ll'(»As//\. |)„/,v/,, | ( 'liy. Clniiiili. 'j.'U .
\ aiiKoiiidinet.
"■'■, 10 1 'liy,
Alllnlllit.
Th
le court, iiiid(!r the (•ireiiiiistiiiict.'s, icftrn
it to till' master to lix ;ui aiiiiiMiit. tn lie |i;ii(l,lurt
iiig such time as the (larties eontinucd tn livi
separat(.'ly. /unjlis/i v, KikjIUIi^ [] ( 'hy, ,-|)(q
The rule that tlu^ conduct of the wilV slimilJ
weigh much in determining the aiiKiimt nf ;dl
iiioiiy, is rea.sonalile ; still the eniut, ninlti thl
circumstances of this case, adopt,Ml the linsli.iiiill
income as the proper guide. Si rirn v Sm
Chy. 10!».
.'VUowance increased fmin t'2.") t(i i'SKI |K'1' ;
num, it being shewn that the liusliiuiil's iiifin-
had HO increased as to justify the ailditimi, /I
The rule as to allowing one-tliinl nf iinnia
how far applicable to this coniitry iiinsiilc:
McCUiUdch v. MeCn/Mi, 10 ( 'liy. .tl'd.
nefcndaut owned re;d estate of the ,iiiim
v.ahu! of iibout CII'J lOs., hut sulijct't tiun
of .i;i(X); he li.ad also lioMseliolil fnniitiire
farm stock, and lie worked his fanii. 'I'lieiilsi
titr with her eight childifu lived ii)art fnmil
on account of his cruelty, and wit'i lui inii.
On a reference to the master to li.v iieriMn
alimony, he allowed C.'IT 10s., wliiili (Ui .npjl
was increased to t'SO per aiinuiii. //'.
The purpose of allotting aliiiiiniy is tucii^
a wife to support herself whilst living iiiwrt,.
as the law- docs not contemplate a squiratiim J
life, the court will not saiietion tlicimviiieiitf
sum in gross in lieu of an annual .sum. //('(/f
v. HiKjitiiij, 11 (.'by. ."iti".'.
An offer by a husband to suiiimit his
sepai'ately is no bar to a suit fur aliiiiouy.
■ \'v"'-
Mm
nr'niK iit. llii'liiKtiMiMil,!,,
I to till' llc\t sittiinj,,
liivil fiiili'il, ;\iiil wiKullv
iilininiiy mill iliHlmriic.
•II cliiTiti'il tu jiay, /(iiir.
1'. H.'JOO. Cliy.'fliml,.
II /' ( 'ir-ii.J.
lull till' |il:iiiitiiT's ;ilwii,'i'
iii\ci\iT was vulmitiiry, ;iiii|
(iwii \ iolciil ti"iMi«'i', aiiil I
still willinji til ri'i'i'ivi: iiinl 1
t ilimin^xnl tlic liill, \mi ]
jiivy iMists. M'-Kiiii V. .1/r. !
is III I'rsiili' witli lii'V liii*. I
ill till' i'liiil liiiiui.' iif li"tli.
ilUH'iiriil tliilt tlu' liii.<li;iiii||
ili't'ii liy a I'liriiH'V wifi', iiml I
livi^ lit liiiljiiii(;s, till' ciiiirt, I
or (itluT ill tvoiitiiii'iit wibI
:ci! fiir iiliiiii'iiy ; iiml tktl
■11 tliiit iliu'iiiH siu'litiiiR'tliel
in tlic lialiit 111' visiting iiiiill
nfo. H'li-'v. ir.;)-, lOCliy.r
sill mill iilli',i;o tliut till' lmi-|
1 ri'i'i'ivi' liis will'. It is iind
iiii'i'i'ly tliiil tlit'y :ii'i' liviiijj
■((Wi, I I'liy. Cluiiili.'iW,-
. Aiiioiiiii.
r tlie I'iri'iiiiistiui'is, lefi'in
an aiiiiiiiiit t" In' iwu'l'lnrj
• iiai'tios I'oiilimicil til lifl
/, \. Hinilisli, (i (lliy. 580.
I'liiiiliii't III' tlio will' shmJ
L"riiiinin« tlir luimunt "f
still till' I'liiii't. "'"^^'f ^\
irasf, aili>liti'iltlii'li«8liaiiill
giiiiU'. Snrrii v. ,Sii'ini,|
si'il fnmi t'J.") to «K) in'i- 1
11 tliat till' luisliiuiil's im'"ni
t.i justify till' niMitmii. If
llowiiin imi'-tliinl of ino'iaj
ti) this I'lmntry I'lmsuU'i
iiurh, lociiy. ;vj(t.
1 ri'al fstati' of tin' a""^
•' UK, Imt siiliji't'ttniuW
Tlsi. liimsi'iii.M Umwtmtt
worUo.l liis farm. 'I w 1«
hililmilivi'ilavai'tfrimil
•rnuUv, auil ^vit'l w ma
the iiwvsti'r to lix verraMV
I C37 !••»., «'l"^''' "" ''^
iO \wr aunuiii. I''-
Lotting aliiiioiiy'st<'H
■vsulfwliiW living M«."| I
cmtoiuplato a si'iiaMtuinl
„ot«aiK'tionthci«yme'itl
„f an annual sum. ""9"
riiw.
luHlianil to suvvort liw 1
Ivr toasuitfuralimunj,^
i;oi
TTU^^RAND AND WrFK.
1703
jlliilAvit of tlio hiiHliiinil glidwiii^' Inn willinK-
"' ,., a(ii)iMirt liit* wiff si'iianiti'ly oaiinnt liu
*^iv,,l. Il'"'/' V. iWn; I Chy, cruu.ili. I(H,
VaiiKimgl"'"^'
ti. I'l-iii-liri'.
Tlioiiiim'i|iIi' laiil iluwn iii 'Wiiti'rs c. Siiiulc, 2
I'liv '.'IS, ill ri'slH'i't to ii|)t'iiin^' iniMii'atinii, ixy-
ifsMWiillto suits for itliiiiony iis to otlier eu»t'.s.
■jl',-A',i;/ V. .)/<'A'-'.'/, tit'liy. ii7!».
\ii iinler on a motion to dimiiiftH, givinj; luavu
I '.iifd examination, lias tlio cirri't of oiK'niiiK
JlVtion, ll'';/-v. Wrir, IChy.Chanii.. I!t4.
' -.VauKoiigliui't.
I'lieilefeiiilant ooiisi'iitoil to an onU'r for ali-
I |,|,y [iiul a iiiotioii for till! onli'i' was ri'fiisi'il,
Lit»iiiilil amount to a dt'ori'i'. It slioiiM lu'
Lp,i,At lii'forf till' full court. Ci-hUj v. ('nihj, I
I ^'liyChiuiil). 41.- Hlaku.
^ml, jmilii'atioii must lio upon notioo. Sirin-
|„t,„v,.ViivHi(Wo/(, '-'tJliy. I'lianil). 4.">;t, Taylor,
I jfm/iir;/.
7. CusLt.
^pliiiiitifl' sui'ooeding is fntitk'il as ;i Koncral
I „it tuber full I'osts. SmiImw S<>iiI,.<, W ( 'liy. IIS.
1'lictest as to allowaiu'o of ousts ainiojirs to lif
lihttlur iir not they have heen vexatioiisly iii-
liirreil. Tlieri'lore where notiee of examination
liBil lii'ariiig was given ami afterwanls eoiinter-
liiaiMiil"'" its eoining to the knowieilge of
lljiewil'o that the huslianil inteiuleil to jiioilme a
IriiiiirsJ frniu aliroad to inove adultery on her
l«t while iin»liil'-l"'in;''-^^ ''''it was done having
l^ii iliiiii' ill good faith, so that she might lie
l-Mfi'il til I'eliiit HO serious a eharge, the eosts
|Biilatwiiti)8ueli notiee and eoiinterniaml were
liliiwnl. Illrmw V. (Ili'iinU; I t'liy. C'haml). I,"),").
l-Spraggc.
J On a i|uestii)U arising under .'Vi Viet. e. IS, O.,
Iinl till' gt'iiel'al order 491, it was held, that tin,'
jjintitt' m an alimony suit is not entitled to the
_J Biciitimioil in the order. (Illili \, VUili, '2
Kaliamb. 40'.'.— 'I'aylor, St'crctanj,
8. IMh-f fi-om,
Tierctlii' plaintiff, after an order for interim
luiiiiyhadk'cii maili!, returned to her husband's
Mif, ami lesiilt'd theie for some time, Imt after-
j ii'ft liy reason of eruelty, a, motion to .set
iiletlii'iuti'liiii order on the ground of eondona-
^».vi rcfusuil with eosts. Mii.iirill v. Ma.i-
tll,lt'hy.niaiul). '27. -Blake.
lAlter a ilceree had been made, and alimony
'd (or several years under it, the court enter-
1 aiiil afterwards granted a petition by the
mil to Ih) relieved from the deeree, on the
il of the wife's subseiiuent adultery. Si'veni
Iktrn, 14 1'liy. 150.
IWhere in an nliinony ease, no one appearing
fdefenilant, an order had been made for iu-
ni alimony for the amount endorsed on the
Hwhich ilefenilaut eonsidered excessive : on
ition by him to sot the order aside, a refer-
»wa8 directed on payment of the costs (dives
lli| of the application, lloopvr \. Iloiqwr, .*{
B.Ckmb. 114.— Mowat.
A husband, against whom his wife ImH ob-
tained alinioiiy on the ground of desertion, iit
not entitled, as of right, to have the decree
vacated or snsiieuded, on his ufterwarilH oll'eriiig
to receive and maintain her. Ciuid' v, Vionk,
llM'Jiy. u'8;i,
9. Olhn- ('ii.-<i.i,
Sc|iai'atioii of husband and wife, llefereiiee
to Settle the allowance in lieu of alimony. Deelii
ration on subniission bond, .'^[lecial demurrer,
liiitsli ji v. Sti'(iiiinii, 'lay. 4!IS.
A bond given to a trustee, by a husband ami
his surety, to secure payment of alimony to the
wife, in pursuance ot a decree of the Court of
Chancery, was held not to be assignable by the
; trustee and the wife, such assignment being eon-
1 trary to jniblic ]iolicy, and tending to lessen the
inilucemeiit to reconciliation. The plaintifl' ile-
clared as assignee of such bond. Itefendant
lilcadcd, on ciiiiitable grounds, the deeree in
Ch.'uicery for alimony : that the bond was given
in piirsnancc thereof to the obligee, who had no
bciielicial interest therein, and the assignment
was in fraud of the decree, against the will of
the husband, and could not lie maintained in
ei|uity. The plaintill' replied that the wife by
deed assigned her bcneiicial interest to him.
Scinble, that the replication was not a departure.
I'i'iffiii!<liiii \. Ilonjii r ,1 III., ;it) t^ 15. •_'<>."i.
A in.'irricd woman had left her husband, and
had for sonic time been living ajiart from him on
account of his alleged adultery, and he had not
contributed in any way to the support of her or
her children, whom he allowed to remain witli
their mother. The wife was advised to tako
proceedings against him under the statute for
not lu'oviding her and her children with food,
iVe., ami also to lile a bill against him for ali-
mony. To comiu'omise these threatened pro-
ceedings, the husband made a settlement in
favour of the wife and ehildren. The husband
in fact was then insolvent, but neither the wife
nor the trustees had any knowledge thereof : —
Meld, that the settlement could not bo im-
peached under the statute 13 KHz. Mason v.
Srott, '20 Chy. 84.
A certificate of lis penden.s shinild not be
i.ssued in a suit brought for alimony only. W/iite
V. IIVi;^^ () I'. It. iJOS.— Chy. Chamb.— Holm-
sted, J'lfirie,
The compromise of an alimony suit is a .sufli-
ciently valuable consideration for a deed from
the husband to the wife. Ailnnis v. Louvils, 22
Chy. !»!>.
XTT. Misc;:i,i.ANF.oi'.s Camiw.
AVhere a wife had left her Imsband and gone to
reside with her father, taking with her her infant
child of about seven years old, and the husband
obtained writs of habeas corpus to his wife's
father to bring up her body, and to his wife to
bring up the child, the court refii.sed, on the
return of the father and daughter to the respec-
tive writs that the husband had ill-treated hia
wife and child, to make any order that they
should be delivered to him, but informed the
wife that she was at liberty to go wherever she
pleased, and to take the child with her. liecjina
V. Buxkr, lii'ijimi v. Siwoks, 2 Q. B. 370.
ife'
^ff
t^l .
'HI f
'Jul it I ' '
!f^
un.T
tt>t:ntitv.
'I'hu riiiiiniiiii t'lTiM't of iv nmrtunKC i** to iMititli'j
tlw' iiioi t^'iif{ri' til t.iki' |Mmst'MHJiiii itt any tiiiii', '
fVCII iH'flll'C llclllllll, llllll'NS till' I'iKllt til I'I'lllltill ill
iHiNMCHHiiiii till lU't^iiilt III' n'Hi'l'M'il ; ami vvlirrc
lliiM riglit liuH iiiit lit I'll iTHiTVi'il Hill! tlii' inni't- I
((iigiir liUN ilicil, till' wiiliiu, Imliliii^' in juivitv |
Hitli lii.s titli', mIiuiiIm ill III) lii'tli'i' |iiiNitiiiii, »itli
ri'KHiil til lii'i- I'i^'lit til till' iiiiHtii'.sMiiiii, than lici'
IhikIiiuiiI. /'i.i iI. Mninil V. Siiiilh il ,il., H i}.
h. 13i».
Ill trover a^jiniimtilcfiiiiiiaiit I'm' tin' ruiivcrMinii
iif ct'i'tiiiii iicrHiHiiil |ii'ii|ii'i'ty lii'i|iii','itlii'il liy ti'N-
tutrix, il iMiuriiil Mmnaii, tn tin- •■'•"■'•'" ••■
:oi
IMiti'iit riiiiii tlic orriwii liuil lii'i
than tNM'iity yi'urH, ami it uax
■','" '•""'■'1 iiiur,
'» iilxii dlivm, .1 ,
tlio uiii'rKtiir lit' till' iliti iiilaiitrt liiiil liiii, ;,||„ ' I
liix riaiiii nmli'i' tin' lliir iiml I'cMm,. a !*'
till' lami ill i|m'ntiiin, thniiKh t«iMii' t|ip,V.,,' '
al'tt'l'WariU tin' liatrlil inMiUij im ,iii,,(|,. . '''"
■ """IIUI lllliii,.
Iiiit with a ili'srn|itiiin that ilid i„,t ii,vi,i,| jj",?
that iif the lu'i'Miiii iimlir wlmm tlic i,l,„l#
I'laiuu'il. /),„■ il. Jlidir V. (,'i„ilfl ,l ,il., ;, i, " I:
Whi'ii' tlii'i'c in iiiithiiij^ til I'.'iJM
r the iiirsiiiis tliiuii;j
1.1' ..ivHUiiU'il t|.,„M till. hlrntiuTf:
In this ras.', huwi.v,.,., i„ ,,„„,,„;
I'MlllI
tatrix, wliii \\s\h li\in;< apart tViiiii her hii.iliam
ilii.'il in |ii)SHi'.st.iiiii lit till' |ii'ii|ii'rty ; tlnTf wan
nil plfa 1111 till' riTiii'il ilriiyin;; the |ilainlill'H
HtatiiH i\H I'Xi'riitni' ; thr hiislianil hail iii'Vir inti'i'-
IMiHuil, mil' iliil iIi'I'i'IiiIhiiI ih'Irliil iimlrr the liiiH-
lumrM right : liilil, iiinU r tlu'sr riiciinistam'c.i,
that it was iiiit ii|i('ii tn tilt' ili'l't'iiilaiit tn laisf
till' nlijci'tinli. .liliiiiiM \, I 'iii'i'iiriin, '-Ti ( '. I'. iVJI.
A niarrii'il wnniaii, living apart I'rniii lit'r him
baml, ai't't'|itt'il snini' iiiiiiiti'ly tnr hfr wagi's :
Mi'iil, that tilt' tranwu'tinii \\ax liiniling mi thr
gi'iiutor, iuiil all I'laiining nmli'i' hiiii. .l/im/i v.
Doi'iH, IliChy. •_>•.'».
Wht-ri; a \\ ill' joins in a imirtgagf, ainl mi tlif
(li'atli iif tilt' hiislianil tlii'ii' aio iint siillitii'iit
iissots for till' iiayiiit'iit nl' all his iltlits, tlif wiilnw
is mit c'lititltil tn liavt' tin' nnirtgagi' tlt'lit [laiil in
full nut iif till' a.sst'ts, tn till' lui'iiiilii'f of ii't'ili-
tms. Ji(Uir\. />inrli(ini, l;»('li\. Il;(; Wli'il, \.
JiiiHlidn, ir. Chy. Mli.
ifiii wasiHKi'ii, Willi III':
ill his iiaiiit' : Molil, that tliuii' was not any ru-
Bultiug trust in favmir nf tlu^ wmnan. Slriit v
Jlolktl, 21 I'hy. 'I'm.
IDKAI SONANS.
Sic MlSNoMEli.
IDKNTITY.
I. Of PnitstiNs, 1703.
II. Ok (iooiis, ITOIi.
in. OriiEK MA'n'KHs, 1707.
IV. L\ PLEAUINlf— iS'tV I'lKADINI! AI' liAW.
I. Of I'krson.s.
In Prorhuj Title to /.(///(/.]— The court refuaeil
to set aside a nonsuit where ilefeiiJants ami
their ancestors had been twenty years and uii-
wards in possession, where itiipiieared that tlie
irl
III. I
the iilt'iitity III' the |iiisiin.s tliiuu;;!, hIi,,,,, „'',',,'|"
I'liiiit's, it ui" ' ' '
the naini's.
the iiltntity, tlnre were lii'siihs Ih,. lunn
tli'si'riiitiiin III' thi' |.arti('s ami tin- IuimUih,,,.
ami tilt' I'ai't that the Valilit l,a,| I,,,,, U.A
iliiWII with tilt' illllrrent inlivi yalll■^^ • m ,| •
aiiiiearnl I'lirtlit'r tiiat Imtli |,ailiis ;i.«i'.|,|,!i t',
the title nf mil' M., who ilaiim,! tliiiiu.l, i|||
ili'i'ils as tn th" names in wlii,h imml'iii i,r,.|,||t,
was iiisistiil u] .\i,l,f,l.i„i, ^, IhiiU.n'f
•-M (.». I!. lOS. See, also, /<„,'„„ v./,',,',/ |'|r'
1'. :t!i;i; ih-Mi-y. i;,-ii<,ii, nc. i-., •,:,■), ' ' '
I'laiiitiir t'laiiiifd nmlfrailitd tn liim ii,,|ii„i,,
(1. (>. (i., the heir nf tlii' |iatiiitii', .\. I, 11,
gave I'videiit'e that his jiiaMtnr was tli,. l',,,,, „
nne A. (;., who hail liri'ii a raiitaiii in tln'imy
and put in tlif patmit tn A, 11. nt liSdaiin, »it|
a ilet'il tn hiiiisi'lf fr thr alliucil lnii m ti,
same land, nf wliirh tlu' lainl in ili.s|iiit,. i„|||„
jiart ; Meld, sulliiii'iit t'\ iiiin,,' tu gu tn tin
jury nf idtlltity hetweell the jiattlitti' ;iii,l t||
ailegi'd aiieestnl'. /.';•"('•/( \. 1,'inii'hlimi ''
1!. ,V-'0.
Lands were I'lmveyi'd, in ISOt, liy ilinl tnUI
It. r>y a di'i'd pnll I'mlni'si'il ii|„ii'i thi' iIit4i
1.S04, and tiateti in Is-j;!. \V. I!., dcsniU .
" tiie witiiin uaiiied W . I!.," gnintid tin ,ai
lauds tn trustees nf a iiiaii'iaui' si'ttii'imiit aJ
eiited in KS'_'0, iimltrwhiih tiie iilaiiitill'sciuimiill
llehl, that the W. I!, wiio exti iitiil tiaili
[lull wiuild lie piesiimed tnliavi' ln'ili thcgraiU
111 tile ili'tul nf 1804, imtw itliHtaiiiliiii; ii'titujs
other deeds, prndiU'i'd liy the iilaiiitili's xs pa
of ilieir I'haili nf title, temliliy tn siii'W that tll
grantee in the ileeil of 1804 wai ilwul Ijefuru I^Jfl
T 1(1)111 i>!<i,ii it (il. V. Jiciiiicll, •2:1 ( '. 1', :m.
In ejeetnient, the jilaintill' elaiiiiiil iiiiikr i
l>. L. ('., whmn he alleged tn lie elilcst smi i
heir-atdaw of L. ('., assignee nf the graiita'
the erown. The patent fitnii the eiuwii was (
F. Will, and the deed tn \,. ('. was sigiitir
F. W'lK.ti a.s a niarksniaii. Tlieie was im ilire
evitleuee of the identity nf Weis ami Wcai
The deed was prnvetl liy the iiitiiiiiriaj, as m
oinlary evitleuee, hut it was shewn tdliavolKiiij
the eustndy of dt'l'i'inlaiit, whinlaiuiiil uiuli'
will of 1,. ('., which hi' inijiliui'il, ami that it ill
been with the patent in the iinssessinii uf tlie^
family sinee ISKi. It was not shewn tlurt'
any other V. Weis exi'ept tiie pei'sim wlin I'U
veyetl a.s V. Weast ; - llehl, tiiat the ideiitityj
Weis ami Weast, who made the ileed to L
was sutlieiently proved. Wnlllichhii- v, «/"i
:Wti. K (il3.
Ill ejeetnient for land in the tiiwiislii|iiil'Moii
the plaintiff elaiiiieil iiiuler a deed I'lniii M., I
patentee of the ernwii; amltlefeiidaiithyatlvc
po.ssession. Al. had eniiveyed tn the plaiiitiff|
I87.S. being then 84 years n'ld. It aiipearol '
ill January, 183.'), one H., ilesciihiiig liimstli|
attorney to M., and as.sertiiig liiinself tu \x fu
II liiiil liccn inMii'il iii.irnl
ll It WAH ;ilHn ,||,.y(|| ili^jj
■lllllUlli li:lll lll-.'ll;lll„\(,.,|j
U'ir ill 111 I lev in,.,, ,\it |„J
.liciuuli t«" "V thriT y,.;in|
tlinl iliil iii.l luvunl «ii||[
miltr will nil tln' |il;iiiiti|f)
• V. (iiiidii iiiii., ,■,((> nil r
iiiK til ruihi' II iliiiilit u» till
Hiiiis tlirnutili wliiiin atitlt
muril liiiiii Uir iili'iitit^ ,
nlsr, liiiNM'Vi r, In n,[i\v^
■ IV lirsiiliH tlic iiiiiuvi \\U
tii's mill till' liaiiil'VU'itiiiul
(' )iiltl'llt Ililil lilrli Liiiiliif
rent I'lnivi y;iiicis ; ;iii,l 'A
,t lintll liilllirH ll.whtnl til
wllii rlillllli'il tluiiuuli thj
4 ill N\ lllrll |iliii>l' III liliiititV
Siiliiil.Miii \. lUidliu'.i.A
lll.HIl, Pi'f'lll V. Iti'iil, 111 l',|
■mill, IK'. 1'. .";t,
iiili'i'aili't'il til liiiii lrii|iiiiu|
if thr )iatrlltfr, A, (,,
liis "iMUlur wild tlir 111,
Im'cii a i"i)itiiiii ill till' iii\y|
I ti> A. ti. Ill' '.tS((iii'ivi, «itH
'iiiii till' alii i^fi'il lii'ir III llJ
till' lallll ill >lis|ll|tl' inllllllf
H'lit cviilriu'r til gii til tb4
wci'll till' iiati'litci' ;iiiil th
llri'ii'ii V. /.ii'iii;/*'"!", 'J'.i
.yu.l, ill ISOJ, liycliTiltiiW
1 ftiiliirwi'il ii|iiiii till' ili'ti'
ih'.':t, w. II., iii'.'*i'iii«ii
1 W. i:.,"nraiiti'il till Mil
a iiiairiam' ni'ttluiiinit vu
\vliiclitlu'lilailitiir^i.'l;liliinl
'. II. wllll CXl'i'lltl'il till' lit
ii'il to liavu lii'i'iitlii.')^fiiir
iiiit\villi'*taiiiliiiL; I'l'i'itiil'i
I'll liy till' plaiiitillx :is [i
If, ti'Uiliui,' to slit'W tliiit tl
t |S04\vai lU-ail iH'fiii'i; IS'J
7,„,K», ±2<'. 1'. m
l.laintitl' clailiu'il uiuK'r ol
allt'fioil to lit' I'Wi'st siiii
issiglii'c of till' gnilitre
tent from tliu itdwu was
H'imI to I,. ('. was sigiii'i'
mail. 'I'lit'iv was no ilir
'iitity of Wi'is aiiil \Vi
■ll li'y till' iiii'iiioi'iiil, •L'*
itWasslu'Wiitiiliavolu'i'ii
laiit. «lioi'laiiiii'iliiii'li'''
1. (.I'oiliU'i'il, auiltliatitli
, in till' iiossi'ssiiui tif tliii
it was not slit'wu tln'"'
XOt'Pt till' pi'l'SOll wli'i CI
^Hol.l, that tilt' ulfiitity^
|i,i made tliu ilwl to L
^,^\, Walllii-hhli- v. J"»^
lulintlu'to«iisl'ip"''J^lH
iiiult'i'ailt'uiltroiii.M.,r
|,;aii.iat'ffmlautliyi»ilva
Viouveyi'il to tlif vlaui i«|
l.ai-so'lil. Itaiipeawl
.lescnljiiig himsfUJ
H.
hssf
rtiiii' liimsi-'l'' tu k la
,:a,i
TDEN'TTTV
ITOfi
rtili
Vi»
Mffil 'ly M. ti> liicftti' mill Kcttli' l(K) lurcH' 'I'lio iiilinixnioii of ft iwrmm hitviiI witli uii
M. wiiH I'lititli'il for militia wirx ircn, nlliri' .oiiy of till' liill, tiiat lii> wii.s tlir iinnicr
liii'li
ifliliiiiii
III, l,i» lilt
m i„r llK' I'l'
Cfllt
11 e*\
1 tliat till' joiatiiiii iiiiu
lit
.1.
Il'tv liailli'il ill :i liill, i^ Mot Hlltlirii'lil |iliiii: of
Iii|i of Mono or ( 'ali'iloii
III .Mlirrli, fill' lilolltitv nf till' pi'lNolLsi'i'Vi'il uitll till' lU'foil
iitioii tii'ki't waM iftMiii'il ill till' iiaiiu' of ilaiit. SliU^
'III, I Cliv. Cliiiiiili,
!:«ti,
III ill iiiit'Mtioii, jpiit .tt.itiiin llial no '.'HT, iiolc. S|ii'uj{>,'i',
t nliiilll'l i!4r<lli' until a li'Mlilrllt si'ttltr liai
titlilislii'il oil tlix lot, u ho slioiilil oil iijiy
It IN lint HUtlii'it'llt |il'iiiif of tlio lilrlltity of a
1 lllll>l'
. llult' I
llVI' till' HlillK'
witi
lill »i\ IIIOlltllM llOlll
party
vi'il out of the iiiii.tilirtioii, that thii
iimtf
f till' tirki't ; ami in
to M. .M.wl
D.i
iIm
r, is;i.-i
lit lUKIIl'l
111 wancNiUiiliU'il an
ili'lioiiclit to till' .'itliila\it of Mirx ire r*^M'al'^4
III' .iri'Mil " tilt' aliovi- iiaiiii'il ili't'i'iiilaiit."
that
'I'hu
,»ltllt'HII. ItW'"'''
I tall •'".^'
I't' that III' iirvir Iviu'Vv
ir n:\\i
UliilaN it hIiiiii
show till' imaiis I
if k
iiiitlioi'ity. ami that ho know iiotliin)^ of ^
V. nul„ih
I Chv. Cliiiinli
lii'il^i'
tlr lilt lllltl
I tilt' |>laintill a|i|ilit'il to liiiii lor a
<r:\nn<\
ivIIV
ll, jiiry tliitt M., '.V
lli'hl, that thi'i'i' was i \ iilcmi' for lli'M, iitlirtiiiliK S|i:ilV<>ril ''. Itiii'liitliaii, It I
>. S.
hii
his a;.'i'iits, hail ll.'ll, that in iin artioii for inalii'iunM arrt'st mi
lltt(lltl
I i{iiii ; iiii'
itiifil 111
1 1,, I III' I'l
.Ulllti'"!
„i- was awuif
ll 1.^
that it hail littii so onti'ii'il a coiiy of tlio oi'i);iiial liliil in thr riow ii olliri'
iHiii till' laml, afti'i' tlu' issuing of tlio ii fU. mu., tin- altiihu it i.s siidn niitly (n
1 .1. .1 :. I 1 I ..i I I' tl ;..;.. ..I i;i...i ;,, ii v, ,
that
t'\ iilint'i' siioiii
li.iM' lii'cn It'
ll that till' iih'iititv of ilrlViiilant with ilopi
til
till' aits ami stati'imnts of II. iilatiM' noiit may lio |pri'siinii'il |priiiia laoio lioiii
lariiiK tht' laml, ho as to tnalili' tlio naiiii'. i\'il^iiii v. 'I'lnir/ii , \H i), 11. •I4;i,
limitations to run : ami as this oviili'iiri'
iliawii fi'oin till' jury, ami tlio only
I'laiiit ill's, siii
|iiiii a Jmluiiii'iit, oH'i'i't'il no
j„ti,iii siiliiiiit'i'il w
as as to till' idi'iitity of tin
|iriiiif of Mil' iili'iitity of ili'fcmlaiit w itii tin- |h'|'siiii
.,,'iitir witli tht' jplaiiitill's 1,'rantiir, a now tri.il
wlliiii'fiiri' xranti'd. I »ii ajuifal tlio jiulnimnt
.1
th
I' iiiilunii
it. .St'iiililo, that as ilu-
|i)ti
ru ii{ilit'
» '.UV
111. Aniiilfiiiiii V. .Sliirtii
I, •.'.■| CI'
I.MiK. Iiaviiinaii onlt'i' in conmil for KKtacri's
iiitt'il in Ki'liniarv, IS"'", to oiu' Sliori'
fi'iiilant hail jiloaihil in ■'oiifission ami a\iiiilam'<>,
this, riiu|>li'il w ith tlio iiltiitity of tlio naiiii', was
soini' t'ViiU'iii'r.
II, 4, III V. Ho,'./, ITC I'. I!K).
I'lr .\. Wilson,.!., tin
ih'
' sot out in this
MM.
,1,111.1 for inlwtl.
Till
)(t'titi
itt'tl ll
I ir
h
'atioii
ll in tl
liuillliilKiiiil wt'iv I'.M'rnti'tl liy i. rk, ami in
1 Willi tlu'ohliKi"'Wik-'*"'''''"^''''''*'"' •"*"' ^ tirk, lalioii
I'liHc was insuHiciint to shew tli.'it ih'fcmlant whm
till' inaki'i' of till' iioti' siii'il on, alh'^'t'il to ha\u
lii'i'ii siuni'il liy him as a niarksniali, ami tin-
11(111(1 \ .
II. Or Ciiiihs,
ilaintill shiiiilil liavi' lu'tii nonsuitiil
.|i///r(c, .TJ l,». I!. r>.">ll,
tr, liiMiytlif pati'iit issiu'il to MiK., ami it wa.s
ullu'liiiasi'itsiipii of Short' shortly iiftor its ilato.
iifi'Wi'iit into iiossi'ssion in IS'JH, t'loari'il aliout
»itii;nri'.i, and afti'i' thi't'o yi'ai's h'ft it in thi'
Mwiaimi iif tilt' iilaintill's, who had tlio liomtit ' In ft" intt'r|di'ftdi'r issiio, tlif plaintill' I'l'.stuil
J^imtii witliiu a short iicriod of tlio doath of his o.'ist' uiioii [iroof of a iliatti'l iiiorti;a^,'i' of car-
iirv, «liiili took i)lai:i: in I.S4!t. Tin' ip'aintill's, ; tain ooods imntioind tlii'ioin, imnli' to him by
iuiuiiigiwlii'irs-at-law iif Shoro, tiltd thi'ir l.ill ] tht' oxi'iution di'litor and iliily llli'd ; Hfld,
lMiltaiii:n.iPiivi'yam'o of thf land, and iirodiii'i'd I'loarly insuirn'ii'iit, for it all'ordi'd no iiroof that
ikjiatiiit. Till! di'ft'iiilaiits, Shortis and Mi'C, j thi! Koods iiiorti,'aj.'i'il wiTo tlui saiiii! ft» tliimo
(^,llll■t■ll 11 iiiiivi'yant'f iiuriioitinj,' to liavo liueii i scizi'd liy tho shoriH' and ilaimod. ,/<ihia v. .fiii-
itleliy, iiml aignutl ".I. .Mt'K., now of tin: town j l^'in", -•"> Q I*- l'">l-
.(.Niagara," &o., yt^imiiin, ti. .laiiifs Smith,! >,.|„, .,i,ii,|titls wi'i'i; iii iiosst'.ssioii i.t t'urtftin
i.t.1 :tli Nt'iitemher, 1 H;i-< : •'•';! 'V '""?'>■;'":':', timl.ur [iniits uinlcr ft lict'ii.se from the iTowii.
toSiiiitli ttiSluirtis, tlfttt'tlMfty, KS4!»; liotli|^^.|,i^.|, ^,x,,i,.e,l in Aiiril, IST'-M-ut it was tlio
prai'tit'c ot the ornwii lands ile)i,'irtmt'iit to ret'og-
ni/.i! the right of lieeiisees to a reiiewul, uiid a
reiiewftl wa.s granted to the iilaintitl's for 187-
,.,,,, , .- ., ,, , "H, ami the ground rent paid in ailvaiioe, the
«*liicliliaiU'li4)»t'.l siiit'eitsftllegetlexeen j ,.^i,,ti,,.^ renmiiiing in i.os.se.ssion. In eolisu-
;lmt tilt' signature ftiitl tleftth ..t one ot the ;,^,„^.^,_ i,„„.,,vt'i', of some ditli.'Mlty ftl.t.ut the
ifeslmKWitiit'8M'8 were i.niveilftiid the al.seiit'e|,,,,,,,,,,.^,.i^ j,,^, ,i,.,,„^,, ,,j,i ^^^ i.s^ie until the
i^theiithei'witut'ssw-fts ftct'ountetl tor: llehl, , .-j,, „f .^,,ii_ j^y.-j^ |„|t jt „-,is statetl to eover
Lrbttlicrewa.sHutheieiitpriiiiu iieieprt..it..tij,, ,^.,.i,,,, ),^tw,'en the -JOtli of .luiie previims.
Jiflaiitiim of tie. lee. from iMeK. tt. Mnith ; | i,,,,.;, t,,;^ ^^,,.i,„,_ ^.^..^.^j,, ,,^,,.„„„_ under whom
lliiit such prtKif must lie taken t..iiielu.le that t,,,,f,,,,,,.,,,t ..ivimed, entered upon the Iftinl aiitl
fciartyliyw^hoiu tlie.lee.l piirporte.l to he ex- ^,„^ .^ ,,„ivntity of sftw logs ; aii.l on the i.lftintiHs
Ij wliicli wi'ie registeretl. No oral testimony
liugiveinif the itlelitity of the grantor in the
lltftlti) Smith with the loeatee of the erown, ami
lill tviilciit'e of its eiistody ihiring the thirty
l)iira
llkll
lnteiUa.H nut (inly ft person of that name, hut
Ilk iileiitieal poiTitiii in wIkiiii was \'eHtetl the
l«ttt(i which the iluetl purptirteil to eonvey.
Ifcirjv, SliuiM 10 Chy. 24S.
going to where tliey were lying in ft ereek
river on their limit for the purpose of marking
them, they were fofeihly iireveiitetl liy ilefenilaiit,
who opened an artiticial tlftiu aiiii uaused the
logs to 1)0 rtoftte.l down the river, whore tlioy
0(lifi'(W».]— Where in an autioii against a | got iiiixetl with some of .lofeinlant's logs. The
iktkr process was served iiptjii his sou of the i plaintitl' then went to whore the logs were, ami
|Mieiianie, ami appeaianee was oiitored aii.l .lo-
' t« maile hy the sou- the eoiirt hold, that a
fa for tlefciulftiit was correet ; and that
rther there was t'dllusioii or not, the plaintitl'
iMnot recover against the son so as to eharge
Kfjther. KWeimv. Strert, M. T, 4 \'ict.
soloetoil the l.igs in ijuestion, lioing of the saiuu
size ami deseripti.m as Iur own logs, ftiul iiuirkotl
thorn : -Heltl, that plftiiititl' iniglit niaiutaiii re-
pltrvin ; that there was suttieieiit evidonoe of
iiloiitity ; aiitl that at ftU events, as the defen-
dant's own wrongful act was the cause of '^ny
ii
1707
TLLECJALTTY,
fit; '*■
iJ}n<7Wit^m ^'
Wif'
\'M
ditticulty, he could not object on this groiuul.
(/ilmoiir ft nl. v. Hud; 24 ('. I'. 187.
(Joods were describeil in ii chattel inoitgiVL'e Ji»
"one kitchen table, four chairs, &c., (describing
them,) ' all contained in an<l aljoutthe dwelling-
lionse anil liarn of the mortgagor, .situate at or
on lots," &e. : -Held, Hutlicient. The uiortgage
contained (> proviso, that in case the mortgagor
Bhould ntteini)t to sell or part with the posses-
sion of or to remove out of the county the goods,
or any of them, the mortgagee miglit take i)os-
Bession of and .sell them, i!tc. The mortgagee,
claiming umler tlii.s proviso, lirouglit trover for
the goods, wiiicli the defendant hail .sei/cd under
ft distress for rent. It appeared that the goods
were .seized in October in tlie iiousc mcntioiu'd
in the mortgage, which had been executed in the
previous August, and were of tlie same kind and
description as those set out in tlie mortgage :
Held, sulticient evidence that they were tlie
same goods as tinpse mortgaged. A'allniss v.
111. Otheu M.\rrEHS.
Where in an action for use and occupation,
the plaintirt' ])ripved liis ease by evidence of ad-
missions of (lefendant, wiio on liis defenee )iut
in a lease under seal from the plaintirt', whicli
he contended was for tlie same iirennses, but
there was no distinct evideuee of identity, and
the jury found for tiie plaintitl', tlie court after-
wards, on attidavits shewing tluvt tliesi' were the
only ju'cinises demised by the plaintirt' to the
defendant, nuide a rule absolute for a new trial
without costs, unless the ))laintirt' would elect to
enter his judgment for the amount of his vrdict
only without costs. liouttmi v. /)i/'rl<n, '2 ii. Ii.
432.
Where a witness, the payee of a note payable
to bearer, and transfein d to the jdaintirt', proved
a promise by the defendant, the maker, sullicient
to take the note out of the statute, but could
not identify the note as the one to which the
promise applied, and it was not alleged or sug-
gested that there was any other note in existence
between the parties: — Held, that the not having
identified the note was no legal defect in the
evidence of the witness as to the promise to pay,
and that the identity was ta be presumed. J{i'i/-
iiolih V. <>'/irif)i, 4 Q. H. '.'Jl.
Trespass against a magistrate for seizing and
selling plaintirt "s goods. To juove the ijuashing
of the conviction a ride of court was ])ut in, in
whicli the oU'ence, tlie name of the complainant,
and of the magistrate, Mere mentioned : Hehl,
sutticient, without further identifying the con-
viction mentioned in the rule with thatiui which
the warrant issued, for the court would not pre-
sume another conviction similar in those respects.
JiroM V. JIiih,-r, ]-) Q. H. 025.
The artidavit of a commissioner to take evidence
stated that "the examination of A. M., the wit-
ness named in the said commission, was duly
taken Injfore me at, &c., as above eertitied, under
and according to the directions of the said eom-
inissiim." I'receding this atlidavit was a certili-
eate stating that "the foregoing arc the deposi-
tions of A. M., in the annexed commission
named, upon the interrogatorieR taken before
nie at, &c., under the coinuiission thereto an-
nexed ; and 1 certify that tiie same were taken
according to the directions in said pf,nin,ig,i, „
contained, and that annexed hen-ti] and to ■ ' 1
commission are the said intern igatni-iw aii'lTl
documents therein respectively refein,.,! j,, >■ ii"
the commission was endorsed tiiu fulldwil], "
turn: "The return of the within wiittfu ?• '^"^^
mission will appear by the deiiiiHitiuiis, :ilti.l:i'vj't'
and papers thereunto aniiexeil ;" liel,! ■ "'
the examination or ile])ositiiPiis, whiih wir.
ert'ect held to be synonymous tiriiis wi,' '"
were, fully identiKed as the cxaiiiiiiutiim of'ti',''
witness under and annexed tn tin
Miidli'w LikIIoii', l(!i'. 1'. 420.
^'"'iinnssiuii,
IDIOT.
Sic LrNATIi
TLLEtJALITV.
I. In Bii.i-s oi! Ni)TKs~,sVr Huls m Kx.j
rllANlIK AM) I'liOMISMiltv NiilKs, '
II. VAI.iniTV or CONTUAITS.
1. A.-i n-iiiirils r<il,r,- /'iilirii ur Sliitiik^,,
Si't CoNTliAI'T.
2. C/i/im/ifii/i ~~Sn- CinMrKiiiv *mi
AIainte.namk. ,
.'!., Siili- III' (IiiikIh -Stc Sai.k ok (iiiiiiis.
111. Ul-.lliVKHV OK MoNEV ON ,SVf M»NeJ
ClIU.NIS.
A party suspected of stealing,' a lini.se ««
brought ut) on a warrant before 11 iii:ii;istrati', \ih
investigated and disinissed tlu'riiiii'j,'!'. 'I'liesii
pccteil individual lu-etended iiini^'littu tlit'linrae]
and tlie magistrate, .it'ter ilisiuissinL' tlit> iluir^
restored the horse tn its sn]i]Hweil uwmv \i\i
j)rosecutor) but before doing so tuok ;i Ijimtl
indemnity :- Held, that siuli buml wiis iioj
necessarily void, as contrary tntlicgi'iicnil \i
of the law. Hiilliiril v. I'uiii-, ;t y. B, 317,
The sherirt", holding executions iig:iiiist ilofeJ
dant at the suit of ditt'creut piirtics, tank fro|
him a bond reciting that he had seizcilliisgniK]
and indemnifying the sheritl "againiit anylus
dam.agc, oi' liability, wliieli iiiiiy Iji; iiicuiU'd
reason of the execution, the wi'oiij;t'ul exwutiiii
or non-execution of the .said wiit." .Semlilu, till
such a bond would l)e void at idinnion kw, (
being an indemnity to the siieiilf for ilisok'viij
the command of the writ. CurliiH v. llopkir
<J (.1 15. 47!l.
I'laintirt' declared on a special agreeiiiciit 1
under seal, that in consideratioii tliat the pla
till', then a bailirt' of a Division Cmut, wuulil
his duty as the law directed in .seizing ami sej
ing crops on the farm of one K., mi aociiuiit(
certain judgment obtained by defeinliuit iigail^
one M., he, defendant, then proiiii.seil the plai
tirt' to indemnify him again.st all risk tiiat mid
arise in relation to his doing liis said iliity ; t^
he did afterwards sell, and tlmt several (lerK
clain-ed the goods, sued the plaiiitilt', ami Kci
ered a verdict of i.TO, whicli he hail been oh''
to pay, yet that defcndaut rcfuseil to imleniii3
■\ verdict having been found for the plaiiitiffj
Held, on motion to arrest jnilgmtiit, that '
linn I
sctions ill said ominnissinn i
iiiiexeil luTi'tii ami toaniilj
lid iiiti;ri'iij;atiini's anil tlw
ipectively rofuircil to." (lu
t!ii(lor«eil tlif fiilliiwiiig rt-
if the within writtiMi cum- i
f tlie <l(,'\ini<itiiiiis, ultiilavih,
to iUUH'Xt'il ;" iii'lil, tliatj
ilu|)(isiti<iiis, whiili wtiv iiij
yiionyuuiiis ti'niis, was, drl
I 1V8 till) I'xamiiiatiim iif tlie I
iviuioximI til till- I'liiinuisaiuii, I
Gi'. r. 4'2().
1109
JiM PRISON MRNT.
1710
IDIOT.
• LrNATIl'.
■ — ►-
LEIIALITY.
11 Notes -«SVi' V>\u.* of Kx^
; AND TuuMISSor.Y NuTES.
V CONTKAI "IS.
,/.< Piihl'i'- I'lili'tJ uf SUllilk'.-\
JoNTliAlT.
,7,^ -^,SV.' ClI VMI'lUflV AMI
S TKNAM'K.
i'ikkU-Sci' SaI.I'. <iK (iiiiilis,
oK MoM'.V ON .S'li MiiNE
N'I'S.
■ctetl of stealing; a Imise w
arriuit ln'fon^ a tiiajiistiatc, «
(lisiiiiHscd the cliargi'. 'I'hesii
preti'UiU'il 1111 right to the Imrsi
'■,i.', After ilisiuissiiiLjtheiliiua,
iu til itM siivl"i«i''' "^^■'"^'' ''''
k'foru lining sii tiiukahuiiil e
[1,1 that siii'h hiiuil wa3 n(^
li«coiitriu-ytothi!gfiii.Tall"ilio]
(linK exucutiiiiis against AM
,of ilifferoiit vi^'tiw, took froi
uKthiitliohailscizeahi8j!.miJ
I the «herili' " agiUi'st '"'y ';«
fitv, wliii-1' may hiMuouiTOl
laitii.ii, thewn.iiglulwwi'tiM
lof the said writ." SmnliMh
,d lie void at nmmum law, I
itv to the sherilV f-n' il'S'il^'v;;
the writ. ('(.W«/M'. //#'"
led on a >*iieoial agveuuifiit i>j
\i cousiilenitiiiu that thu \m
|„f a Division Court, Willi 'I j
Iw directed in sei/.mg a'"' «g
lu-niof oneK„ouiioo,imitf«
l.il.tainedhy.lefon.to^'f'J
llaiit, then lirii;nis>;^^l ';• ^^
luni against all risk lutm«
I his doing his said dii > . IJ
Isell, and that several FM
I, Huedtlieldaintill,^""^',^;^
l-,0,w'hieliheliadheeu'ilij
tfeidant refused to iiuleii nil
I^Lenfimndfiirtheitot^
1 to arrest judgnicut, that
I klaratiou sufticiciitly shewed that the plaiiitilV
f^,i|uired to do sonietliing wliieli iiiigiit pos- j
(tui'H out to lie a legal exeentioii of the in'o- j
I «ig Mill therefore that the agreeiiieiit wa.s not I
,il,ni Unlx'i-lw)! V. Bntiiilf'iiil, 1 1 (). H. 407. '
<,e MArc. V. I HI Christ, i.M C. 1'. 40, p. M'2.
Trover for panii)ldet.s. I'loa, not giiilty. On
j„|,riiiliietiiin of one of the ]),aiiijililets sued for
I It tlie trial, the judge in the t'onnty Court
1 Vttil that the plaintilV was not entitled to
I miitaiii the action hecaiise the iiainiihlet was a
I wltiiiL' ami indecent ittaeU on cliri.stianity, and
LfllerMa nonsuit. On appeal. Ifeld, that the
lifeinbiit could not rely on the illegality of the
I niUioatiou miller the plea of not guilty, Imt
" have pleaded it specially : Held, also,
Itkiithoiilaintill" held proiierty in the iiiatenals
LmMijiiig the iianiplilets, independeiitly of what
lijiiirinteil oil them, and he would have a right
L lie imleiniii tied tliert^for. Seinlde, that there
|,jj,1j,i.:i1 wrong, forwliieli the plaiiitifl' should
kivcawvercil something : that the .judge slionld
lluveilirccted the jury as to tlie nature of works
lilikhtlie law protects and what it proliihits :
\u if tk« pamphlets were not illegal, tliuy
ikdiiMgive damages for their value as a literary
ImlBotiiin ; and if illegal, they should give dani-
|ijtjt<itlie value of the pajier, itc, irrespective
|3tlie words upon it. liniii-lirr v. Sliiiniii, 14
|f,l',41!l.
I'liurts iif equity cannot, any more than courts
liilaw, on the footing of want of notice of the
ality, give ell'ect to jiroceediiig.s which, on
Imcjiilcs (if the coiiimon law and under acts of
Imliami'iit, are utterly void. (Innliin r v. Jtixuii,
liUA. 188.
that the fact of a inunicipal council
Ibring miilertakcn to indemnify an olih er for
IWul acts done in his otlicial ca]iacity, does not
lutitlehim to look to tlieiii for indemnity agaiiist
like oiiiseiineuces of unlawful arts, as, for iii-
Ifiiicc, ill this ca.sc, of a ■,. rongfui distress; and
Itbt till' lilaiiititV could not lie allowed to ini-
■jtuli the judgineiit of a coinpeteiit court liy
■•fchliewas held to lie a wrongdoer, /ririii v.
fh^riKiralkiii of MitriiiiMti, '2)1 V . V. .S(i7.
I A ilelitor conveyed bis real estate to trustees
elieiiefitof his creditors, to he disposed of
It ,nc trustees ; tlrst, liy a lottery, and fidling
kpLiii iif disposition, then in trust to sell as
ntnistccs should deem most advantageous :
bill, tiiat altlitiiigli the deed was void as to I he
Bt tor a lottery, it wjw valid lu' to the other
liL'reiii declared, liwdvc w MmiiHrs,
(I'by.lU.
A ilccil may he good in part, though void in
Where, therefore, a conveyance was made
iWs, ami the grantees contempor.incoiisly
mtcil a declaration of trust in resjiect there-
i,astullo\vs : first, toloiwo tlielijids until sold, |
lit" sell them ; to jiay the annual proceeds to \
Kscttliir tor life, and after the death of the
ll«r, to [wy the same, or in the diserotioii of
iitrastecs a portion thereof, to A. M. iluring
plifc; ami the tru.stees sold a portion of the
". ami after the death of the .settlor, a hill
' lileil iliiiieachiiig the .settlement .as void
►1" the statute of Mortnuiin, which it admit-
»ly»'»s at respected the trusts declared of
koorpusof the estate : -Hold, that the trusts
ftlwiil in favour of the settlor and .\. .\l.,
Seii'iit, howevux", to support the sale
which had hecn efTected ; and the l)ill as against
the trustees, the jmrchaser from tlieni and A.
M., was disniis,sed with costs. Mflxaiir v. lloie-
hrn-li, 20 ( 'hy. 348.
Where a jiarty succeeds in estalilishing thq
illegality of an instrument, he will not be allowed
to enforce any stipulation that may be contained
therein for his benelit. .\lltiniiii-tli m rul v. Xin-
tjani FalU /iilrnnilhiiiiil /ir/V/i/i Co., 20 Cliy. 490.
ILLEOITLMATK CHILD.
Sit liASTAEU).
IMI'KISONMKNT.
I. AiiiiKsr.
1 . (It lit' I'll Uij Si f ,\ii It i;.sT.
2. Miiliriiiiis Arrp.ll Sn' .Malkiocs Ak-
uixr, rKiisr.ririnN, ami oriiKU I'no-
IKKIllMiS.
3. I'unxr unit Dnlii iifCiiii.ilnhlf in iiiakimj
A rri'.t/i - Srr (!oN.srAiii,K.
IT. Arr.vciniK.Nr— .Vcc Att.uhmk.st i>v the
I'khsd.n.
III. C'a. Sa, — .SVc Capias ah Satisfai'ik.v-
IHM.
TV. DiHKss -.SV" DruKs.'^.
V. I'AI.SK. ImI'HISONMKNT Sn TliKSI'A.SS.
\'l. H MIMAS CuliiMS Sir J T A ItKA.S Colil'rs.
\'II. I>^ .MAi!isTUAri;s .SVr Jisjicks hk thk
Tkaik.
VI II. ritlSO.SKll— .SV' I'lilSoM'.K.
'I'lic house of asHcmlily has the power of im-
prisoning ])t'rsoiis guilty of contempt in answer-
ing or refusing to answer ipiestioiis before a
select eoniniittee, .l/cA''(/i v. liiilnr//, rt ill.,
Dra. 144.
A by-l.aw enacting that persons wilfully neg-
lecting, refusing, or failing to comply with its
provisions, sliould be liable to a tine of €."), i>r
I'liiliiitj III jiiiii till .1111111 to 20 days impiisoi.nient,
without providing for any attc iipt to levy by
distress; Held, bad. // n llriii.iltM'k (inil tlif,
MiiiiiiiiiHilitii iij iltitniiliif, VH). R. 4.')8.
lender C. S, U. ('. c. "),"), s. 8(i, a warrant might
j issue to imprison a jierson for non-payment of
statute labour tax, without lirst summoning him
to answer, or making a convic-tion. lieifimi v.
] Miirrix, 21 (V. I!. 302.
A city bylaw to eonipel the drainage of land
into the common sewers, imposed a penalty on
any one of not less than one dollar, nor more
than ten dollars for each month ho sliouhl omit
to do so, and provideil for enforcing i>aynientby
liistressor imprisonment, not exceeding ,'T I days :
ITeld, that the inllii-tion of a penalty for each
month and iniprisonnient for HI days was wholly
unauthorized. In jv MrCiilrlion v. Tlif Cor/io-
rul'.imof till' Vitji nf Tnronlv, 22 Q. B. Ul."*.
\ by-law with regard to markets, emvcted that
any person broaking any of its iirovisious should,
, iJI
frmWWT
if If '
1711
nrPPxOVEMENT.S ON LAND.
i;
upon conviction ])efore tlic mayor or any other ;
magistrate of the town, forfeit and pay a tine not
exceeding i*">0, nor less than $1 and costs, and in I
defanlt tiiereof, and of distress out of which to '
levy, shonld l)c connnitted, witlior without hard ;
lahour, for not more than '21 (hiys. (^ujore,
taking together see. --I'i, sul)sees. (i, 7. 8, and
secis. •_'(»(), 'JOT, 'AW, 3t>(i, of ('. S. U. ('. c. .'A, |
wlietlier the statute autliorizes a discretion a.s to i
tlie amount of tine and term of inijirisoimient to ;
1)0 thus given to tiie magistrate, or whetlier it
nnist not he tixed l>y tlic hy law. There being
room for doulit as to this ])oint, auil reason to
helicve tiiat many convictions might have taken
jdacc under similar provisions in other liy-laws,
the court refused to (plash upon this objection, i
/ii n Fiiiiicll iiuil llii' <'i>r])orii/i(iii oflhr Ton-ii n/'i
Udi'ljih, -24 {). 15. -jas. ' I
Held, that the Court of (Juarter Sessions is a j
court of record, and has jiower, in the ease of an \
assault, to pronounce a sentence of line and
costs of prosecution, and imprisoinncut in ilc-
fanlt of payment ; and that a wairant of com- '
mitment under the seal of the court, or signa- ,
ture of the chairman, is not necessary. Uniix ,
V. Toi/hr, 19 C. F. 4!). |
(^ua're, as to the propriety or iuiprojiriety of [
sv.cli court directing impri.sonnient to be con- 1
tinned until costs as well as lines arc paid. //*.
As to the rights of a married woman during
imprisonment of lici' husliand for felony. See '
Crocker < I it.r. v. .Sum/di rl iil., ,'{.'{ (^>. I>. ',\\)~ .
I.Ml'lioVKMHNTS ()\ L.\M).
1. C'oMI'KNSATlON KOI!, IN Ivl I'.rl'M KNT, rSllIllt
oKCiKo. III. 1. 14; 1-' Vn T. c. 35;
('. S. V. V. <■. ra, 1711.
II. IIndki; 'Mi ViiT. c, •_'•.', (»., I7li'.
III. Mr.-<('i'.i.i,VNi;ois CvsKs, 17l.'<.
IV. By Tkn.vnt— iSVr li.\.M)i,oiti> \s\> Ten.xnt.
\'. Al.LOWANl'K TO AIotiT(,A(IKK I.N I'o.SSKS-
«ION - - .Vcc M uinil A(J K.
1. ('o.Ml'KNSAI'ION Koli, t.N K.IKITMKNI', f.NlJKK .">!(
(iKo. 111. c, 14; !•-• Vict. c. 3.-); C, S. V.
V. c. ',»;{.
The ;■)() «!«^o. Ill, c. 14, s. '2, apjilics as well to
Surveys made upon re lUcst of individuals as by
])ublic authority, ami to survey* made as well
since as before the act, anil although theocc\ipa-
ti(U) of defendant may have counnenced since the
Jict. Jhii' (1. (•'til/iiiilirr v. MrConnil, (i O. S. 347.
Under what circuinstances a defendant in
ejectment can claim comiiensation for his ini-
jirovenieuts before lie can lie dispossessed under
the judgment : Held, under the facts stateil in
the ease, that defemlant could not be said to
have been misled by an erroneous survey. The
object aiul etreet ol the statute discussed. See
D'lv d. Ihur <l (il. V. /'nl/s, .-) (^1. H. 4!V-'.
AVhere the government for any purpose has
ordered a re-survey of a concession, and the s ir
veyor so employed has planted posts to mark his
survey, and defendant has si^ttled on a hit as
luarked by thia survey, the dufeudaut in ejvct>
ment will not be entitled to Ins nuiirnv™,,,
under the o!) (!co. III. c. 14, and •JVj.t.'
if the jury find that the plaintitf is liii]||j,|i
cording to the posts planted at tliu fmut J,
of his hit in the original survey. Tlie iliiVm
in such ease cannot be said t<i iiavc mtty
the land in conse(|Uence of an unskilfi "
Dw d. Miinli' V. Ouii/ihc//, S l}. ]',. ||i.
(i)u:i're, whether the ('. S. V. c. ,. (||;
ajiplics only where ]iarties have taken |Mi.sse,*i
according to tin; original survey, mtd.^iij,.
where a pro[)rietor of land has liccn ^M
;in erroneous survey nnide by a licciiscil siirvw
iin-tv
%
- . '1' "r iif siijif
former owner of the land. iSirandnii ii nl ,
either at the reijuestof the propriitn
I >aniages nniy be assessed in ejcctiiiintv
sec. .")3, ('. S. Li. C. c. !):',, by a (liiViMl.'int i..rii
provements made on lands nut iiis i,\\i\^
seipienee of an erroneous s\irvcy, Mir.,,,
Kii'jiiii, l.SC'. 1'. 547.
In ej(!ctment defendant gave imtia' tli,it 1
did not defend the title, but claiinoil cmiiimisj.
tion for his ini[irovements, vliicli w iiv ma.lf ,
plaintill's land in conseiiueiice nf iin >;nn\m
survey made before the ji.-issing nf tliu stitiitc
X'ict. c. .S.') : -Held, that defemlant wasentitiei
to the v;due of such im|ii'(ivcnicnts, alt
such survey was a private one, ainl niiuli'iiiHi
feiidant's own acc<iunt. ('mii/ilifll y, AVc,/»,.
4 ('. r. 414; followed in lliilli„i\. TrMt.
i'. I*. 'M'u, and in Murtvii v. /.Mn'.v, Hi ('. lUsj
A well and rail fence: -Held, cviiknat"
t<i a jury of iniprovcincnts. Morlmiy hn.
(.'. \\ 485.
II. rNiiiU! ;it) \'
,•-'-', (1.
Held, that the e(jnitable defi'iKv in (jd
ment in this cause, tiled nndei- the Ailmu
istration of .lusticc Act of I ST.'t, sirs. ,1 ainH
setting U]i the right of a widnw ami ilirarca
who had paid otl" a innrtg.agc iinuli' liy lnr
band, to possession of the ImhI as ;ij;aiiirt tl
jilaintitl's, her children, until she slmulil K n
jiaid, and afterwards asdiuvnss; ami sotting i
also a lien for improvements iiiaili- muleralei
from her, (fully set out in the rc'imrtnf this cai
thiiugh probably not atVordiug a^'imil i.'i|iiitali
defence, should be alliiwed. Carrii-I: v, All
;i I (). K :m.
31) N'ict. c. "J'J, (t.,as til inipiiiv..'nii'iitsiiiil
made in mistake before notice, and tlieliiiitlitii
fm", discussed. //).
AVhere a iier.soii puivhased lanil km«viii;;lli
his v(;ndor was ;i married wimian, ami lii*|
signees ]>ut up a house tlnTinii aftif l«'ii
warned by her and forbidden tn i!ii sn, i.f «iii
the defendant was aware; Ikhl, in cji'itm^
by the veuilee <if the Imsliainl, that tho iW(
dant, who clainn'd under the .issii/mrs. i"l
claim no lien for sucli ini]niiVL'nu'nts uiiiltrj
Vict. c. '2'2, (►. Sendile, that tlii' lu'lid'roi|i
by the statute nnlst be ,i I'ca.sonalili.' 1*11
s'liilHi v. <!ih.ion, 25 C. l\ -'48.
gna're, ;w to how the rigid tn smli lieu ij
be tried, and whether a det'einlant in cjirtuf
can first deny the plaintitl 's title ami th«i df
a lieu under the statute. Ik
AND.
i;i.>
>t l)e entitled U> Jiis ininnn ,„
'iMicM. Ill.c. 14, ami il'vi);" "^
(nul that the i)laiiititr is li„i,|::' ''• i
10 posts planted at tlio fr,,,,! if'
the ongnial Hurvev. The ,l,.i ', f
. eann-ithesaicit..],!';;:!:;;™*'!
:oiisei|Uence of an uiiskilfnl ,„' .'
«' V. ViUiqMI, 8 il li. HI '"'■■'
lother the ('. S. \', (■ ,. ,-^^ . i
where parties have tak;.,,',^;;;;;^
the onginal survey, nrtoalle'"!
■netor of land has 1,,,,, ,„|g
survey nwuel.y a hV,.ns,.,|,,n,'
ie,]uestoftliepropn(.tnr„r„f<;,J;
r of the land. Sinin^l,,
n. ivx
my l,eas.sessLMn„„je,t,,,,,,t ,,,,,,
Lr.(.e. U l,Va,lrten,l„itf„f„„.l
iiiidc on lan.ls not |,is „„„, „|^,J
an emuicou.s survov I/,,;, . . f
P. 547. •* ' '■'
d the title, but .•lainicl o,nii«w|
iprovenients, vliicii «,,■, ,„„li,, J
d 111 conseiinence of an „.,,„,,J
-Held, that detendaiit was nmtJ
"t sueh iiniiroveiiicnts, alfli, if
-as a private one, and niailn„i,y
aeeount. C<iiii/,l„ 1/ y, /;,.,, J
followed in //»//„„ v. TrMr.m
1 ill Million V. /.r/cw, 111 ('. j'.iljj
rail fence ; -llr|,l, nidciiaH J
iprovenients. Mur/m v. Ln,^3
^SDKll .'W \|(T, I . L'i, (1,
the ecjuitahle ilefciiw in ijnJ
cause, filed iiiidor tliu Mm
listiee Aet of l,S7;f, s,rs. .'fan,]!
right of a widow and d"wresi
ort' a mortgage madi' liv licr iJ
wsioit of the I'.iid as agaiiirt tl
ehildreii, iuit:i she sIkhiM kr\
wards as diMVivss ; and sottiiii'i
iinproveineiits mailc niidcr a iV
Kset out in the rc|Hirtiif this oa
■ly not att'onliiig a gooil cijiiitjl
I lie allowed. Currid v.
-, (>. , as to iiiiiirinvnicnts.i,,,™
e liefoiv notice, and t lit' lien tlieJ
hn.i
<on purchased land kiiii\viii;.'tl(
■I a married winiian, ami Ills
1 a house tliercdii after Iie4
and forliiddeii to iliiso, i.f wlifl
kvas aware ; field, in ('jtdinc
of the husliaiid, tliiit tlio liotJ
lied under the assigiiet's, wf
or such improveiiK'iits iliiiliTj
Senilde, that flic lii'licfmiiiij
must he a iViisniiiililc l«lr
, IT) ('. 1'. 248,
how the right to siicli lien ifl
liether a defeiid.-uit in cjwtiiij
le plaintiff's title and tlicncll
statute, lb,
IMPEOVEAfENTS ON LAND.
fa f.r h,liiig iii,,,,„„,„„,„ „°',|;"' ='?«" a I of tlio „|„ „,,,,., " ' *
I aim
I iwH' sue
.iiaiirtii,Tti„,,,,„„..i,: tj»^'2" !"'i''»!i i«""iv™n
ir lllfli.ir , ■ . ^ 1 (Mlla.wl tl.: . , ; ''^'O,
lUlV
1.21 C'liy
,■),•} i.
the
M miemi-tioi, s.ippo;;d" i,;f';^f ;'f *'"^ equity ; ^;'""!' ^as ,ii„,, the i,;;;;:',;;';:: ';:" '"•■ ^-"-pon-
Ul,andac,,,.iesc!ed in for ml ^ "''""' *" ''" e L 1i *"""" •— '^'-'I'l. th' t t ' " T" '""""""
kliickiniproviineuts wl! re ',. i^'^^'^^''^- !''":"'«! l"^;.^' ''f ^>: ''>' '''^ '-wn tr r""' ';'""'"«
•:ilid on technical grounds Iv '^'^ '" '■■"-'* i„f f • '"'' '■^■^'it"'ns, wlu,.], I'l ^-T'",'''"'^ '"^li
' ''• '^^'"^ ^-^ ^'l"'l»na„, ( i/"-''-; P'-oteetion, ihi " ' > ^;:':' *'"-■ ""ant
' "'U to the suit. //;. ^ •-'• "' tinn; Has no
;;. tl.e estate U by .'£..:: V *'"', -""''tiou
"■'^'■tiier the plaintiff ^,h'''"^:' l""-^lm«er, ,u„l
fortlie'..>T'/T''"V"^'" '' thir.l I !','^""''t "' iinv Dart of ti. ' *-'-'*','''-"-t'^'eived the
'vim- I Improvcmnnf. ,.,„., , ^"i'"''>'- "'■
in. .M;scELL.\.vEor,s Ca.sks.
),/A,r iiiiil Pttrrhan,'): ]--\Vlif.,.„ fi
in t^tatf was present -m.l , ''^'•'.f'"-V'Wiier r)f
fF-t,,agree^,rtS'sSrf^';^;:Km;'M'Vr'
iiircliiwur was ct into i,ossf.«J; '"'' ''""l thi
."ndh^iir^^r-J^:''--^''^--!. W.-einents^ "'■ " ^
-f hat he was ai:2i^;±': ;"''""'!-• the
fr^umt'iits, ainlheiu" afteru'.;',.r""""''"''""-| I"il)rovomenf ^ , . , '••^"""•y- ■"'•
;=t£e^;^r:^^^^^
iSnt^iJSe':::;:;^^;^-^- -e '.- 1 ^^^sz csr'^ r"'- ^^ i>-v^.- of ...,, ,,
ws where the vendor is mr, I"'' ""Prove- I set aside'^H ',,*'' I *^'" '*'^« in'egnlar ainl
^.itle to the puehase!, but 'Se :, JHClit^r ' '^^'^'''^^ '^''" "^ ou 1 ^ " ,? ^"•\^^'-' "" '^i f
i.il;f such a decree where sw,-iti ."'""* I r''"^'omenta 1... I,n i '"'owed for all th,. ;„.
■ • - "■ I »'ents cnhanee.l the va e " if *'"•"'" '"'l-'-ovo-
"" "I'ther; and that i';; 'V"'"' "'*•>•• ''"*
«i"'li jniprovements as am,.,." ' .''^■■^triete.l to
;vouM have been ent tied f ^''T"'^ '" I'o^ession
,. -- ,. ..ereuLouH ' ' ^-- , ^'^' ^'^'^ "^ "-rtgage";'"'/;! ''' '"•'''^'^. knowing that
;^gi;oen.ent was not'bi, If "'f,, ^''-•""";. ^Init the
*" 't ; and a .leeree or "1 ,""''' ""^ *'"= ^^^^^^
the master was directe ,)"''''' '"'"'^' ' '■'"'f
t't'onin^ to tlie pos.eS „* „ ' ^„':"«'"''l "• I«r-
of ;> >,.,..,i .-
-w>.=uu,..uccree wJiere speeili,
■f the contract can he eonii.elJed.
■ A vendor who was umUo *
Intiactforsaleof real esU e U '""'^'^'^^^ '»« I
lie being defective, had mlv i T"!^ "^ ^"«
>.tnl proceedings at 1 m- t f '''"'^'"'S> '"- I
f the ,,n',.ciia.se .i.Tnc? '11,,;' ?,f ^"-i'? 1'^^^"'"'*
t" ""i""»(;iiicin,s ma
W«fb,uii), il Chy. ^-'jij.
[Aiartycu.itraete.l to purehaae ].., 7 r
fio mi.mts from their m, fi ,"" "^ ««••.
^Weuf selling w ho.t \r'''.' ^™ ""t
l^teer having i, tpi ' "^/•''''•■""^■'l- The titioning t,
imp me,t the prooertv nff... „,. _
[ei i^l-r -ffi"" Hl?^^^^
|»M«iH, uri. retim,",,;";;"'""™"'" "' li"
|«4S'ltS?ss^;iX';!i?*^'«->"«-
The rul> tl '^"'' ""P'ovments. Ji,
1 1
: i
f(
1715 IMPROVKMKNTS ON LAND. j.,,
Ill')
On taking an iicudunt of wliat was due to ft; but during his lit^'itinie rotaiiicil the full i^^,,,. ,
plaiutitf ill iKis.sussion, wlm olaimud under a veu- of the property ; iiotwitlistaiidiiii; tliis, tlic s(
dor of real estate in a HpeeiHc jierforniaiiee suit, niaile valuable iinprovemciitu iipdu tlair i^^ ' ,
the master allowed eertain repairs and improve- tive portions. Uponabill tded ■iftiitiitMlinJ
inents, some of wliieli were made after the com- of the father for a distribution of tin; fstato ir
meneemeiit of the suit. On furtlier directions court refused to make to the sons any alldw.i "^
the court expressed tlie opinion that the only in respect of such iiiiprovcniciits. /'„,,,/. ''
repairs made alter suit commenced that could Kim i:v,ii. ") Chy. l.'Jo.
l)e allowed were such as it was the nlainttl's i .^1.1 11 r 1 ■
.luty to make in order to save the premises from '^ ^''f)'"'' 1'. 'V?' "j"^ "^ '"'* ^""-^ "' V^>^m^
deterioration. Ilmm v. Cuhhjn,-!^) Chy. .^18. "^ certain wild l.au,, and aiinomKnl |,i.s i„t„,
•' , tion ol L'lviiig It to him by way of .■i(lvaiin„n.|,t.
The purchaser at a sale under a decree was by i He died without ciu'ryiiig out this intLiui.
the decree declared entitled to an allowance for
permanent improvcuieiits on tiic property. The
purchaser ilied, and neither he nor bis represen-
tative liaviug carried out the purchase, an order
was made in the usual terms diiectiiig a re sale
and the payment of any deticieiiey by the admin-
istrator of tlie purchaser's estate. 'I he lands
were sold and reali/eil less than the sum bid by
the jiuieliaser at the previous sale. An order
was granted aUowing the amount of the deticieiicy
on re-sale to be set off pro tanto against the
amount found due by the report for improve-
ments, iiii/nrid /iiiii/,- v.Sirr,{> I'. I!. liTT.— Chy.
Cliamb. H.olmestcd, Itij'inf.
Trii.ilii .-i.] The principle, that when a trustee
exiiends his money upon the estate, and tlieiiiby
increases its value, the property will not be
wrested from him w ithout repaying him the ex-
penditure by which the estate has been substan
but meanwhile
e the son hail taken ii(is.stss'i„n'
ind l)y his improvements nearly ilmildfil th'
value of the land : -He
that tl
'e son wastii.
tially imiiro
titled to a charge for his impiovcinints. aniWi,
have the land allotted to him in tlie ilivisii.jinf
his father's est.'ite, jjrovided the I'l'esL'iit valiii- , f
the land in its unimiirin(;d state Mdiiid ii,,*,.^.
ceed his share of the estate. (^Kkitc, in suili a i
ease, whether the .■■011 is not eiititleil tdaii al).„'
lute dei.'ree for the land, liii-lm v. lUrlin, LSdn.
407. ISee llony v. Fii'ijiiaiiii, Ist'liy. -IDS.
The widow of an intestate, haviii" ulitain,,] i
letters of adininistration, reci'ived ami m ]A
his personal estate, went into occniiatinii ,,t •
real estate, received the rents ;iiid in-nlitstlur,
and spent a considerable sum in iin]iriiviiii; ,t. J
She also maintained the iiif.-uit heirs nf tliJin-j
testate, to whom no guardian liad hei'ii aiiimintftl;
Held, that the personal estate, auil the \m-\
acted upon in the case of an j ceeds or protits of tile real estate (•(nin.' tu liei
infant cestui (pie trust. /iivis v. lioiiltuii, 7
liy. ;{!».
^^'here trustees with power of sale had in
good faith, but eironeously, made a conveyance
of a p<irti<iii of the trust estate to one of tiie
eestuis ipie trust, fiU' tlie collateral advantage
to the whole pro[jeity to lie derived from cer-
tain buildings ami improveiiieiits to be made on
the part eoiivtyed thus eoiiimittiiig a technical
breach of trust ; upon diseovering which the
grantee joined with the trustees in a conveyance
of the whole trust estate for value, upon an
h.aiids, must tirst be ajiplied tov.aiVis mvinentis
debts, and then to reimburse her lnr suiii.s >|K;iit|
in the infants' inaiiiteiiaiiee. Xo alluwanciMiul
made to the adininistratrix for her iiniinivi'iiiwitjl
to the realty, but she was nut to lie chai'vilwitiil
any increase in rentnl caused by smli iiii|iriivt.r
meuts. /n rr linnill, Burn/ v. JlnrJI^ IK In]
•25.S.
A patent was issued to A. in ninsiilfratii-ii i
improvements on the land, but fliu hemtitii
these improvements had. (ni an ai'liifiatioii !«
tween A. and 15., bficii adjucl.^eii to 11., ainl
agreeineiit entered into between the parties that ! adjmlication was in no way iiniiuatlii'il 1
he should be iiaid such sum in respect of his
improvements its tile < ourt might consider him ;
entitled to, and theieiipon tiled a bill bir tliat
purpose tile court, iimler the eirciimstances,
directed the grantee tn be allowed such sum as
it shouhl be made to appear the ini[inivemeiits
liivd enhanced the value of the whole property,
or the jirice of the buildings and other improve-
ments made thereon, whichever siiould be the '
lesser in amount, and referred it to the master
to ascertain the aiiioiiiit ; although the rule is
that in such cases payinent bir improvements
will not lie allowed at the instance of the party
nuiking tliein. /V;/''.'/ v. ir«'j(/«, 14 Chy. 47.
credited; and it was shewn to he thestttW
policy and practice of the crown to issue nittiitl
in such cases to those eiititleil tn tlu' iiiiiirnveJ
nieiits : -Held, that though the awani nil
known to the officers of the goveniiin'iit, '
patent should be set aside at tlie suit nf i
attorney-geueral, as having been issiU'd tiii'inig
fraud, ami in error and iinpriividence. Aii"n
i/ciirni/ v. McSiillii, II Chy. L'Sl ; iiliiriiicil
rehearing. Hi. ,581.
By letters patent diited in .lanuary, blL'f,
tain lands were granted to tliivo iiaitiisiiim
the trust, amongst others, to enmvy tlif
to the ineumbeut v.'henever the i,'iiVi'ni»i's!;i'i
erect a parsonage or rectory in Kiiigstiii,
iluly appoint an iuciiinbeiit tlicictii, siitli ifl|
Trustees beingeinpowered to invest the luoiieys
of the trn.st in the purchase of real estate, may
in their iliscrction ilo so in the erection of a new : veyance to be upon trusts similar t" tin
building, when aii increased income can be i inbefore expressed. In .lamiaiy. IS.'iii, a rwti
obtained thereby. It is, however, bir the trustees ; was created in King.stoii. In May, ISS",
to determine for themselves whether the cireuui- I trusts for which the patent of KS'.'4 li;iil'
stances are such as to justify such expenditure, | issued having been carried out, and imi'"!
and that the amount is proper, lie Hemltrmiia trustees named therein apimiiitcil Rct'ir,
Ti-uist«, •->;} Chy. 4.").
Other Call x.] -A testator placed hia two sons
in possession of certain portions of his real estate,
other two joined in a conveyance to liiiiiassfl
rector, to hold to him and his suw'e.ss(ir-, -"I'f
to the uses aiul trusts set fortii in tlugr.mtj
them. In 1842, this iiiennibiiit civatoil il
iuteuding to convey or devise tlio same to them, I for tweuty-one years (under which the iilami
D.
i;i"i
iiu
ilotiiiic rctaiiujil tin. fuH ,„„, ,
iiotwitlistiuKliiiir tliis, til,. ,-
iiprovoiniiiitiH up(]M tliJir ivo"""
JlH)iiii1)ill fill!,! aft..rtlitMl,,|,'Z
a (listrilmtiiiii df thuotnt,.. tl
inaki; to tlu; sMii.H iiny ali,,V,,J';
iiuh iiin)i'ovc'iii(_iits. I',.' .
135. '
of bin
il imc c.t liiH suns ill i,„SM.,.<;„|
and, aii<l iiniKiniKe.l his inte,,
toliinil.y wuyof.-hlvaiiM,,,,,,*
it caiTying oat this i„t,„ti„„,
tho son Iiail fcikun i,,isse«,„„'
rovoniunts nt^rly il„uhK,l the
I :--Hfl(l, tiiiit, the
^"11 was in.
; for his iiiipiovoirifiit.s. amlj',,
ottud to liini ill tlnMlivisi„;i „i
L', ijmvi(k:,i tht' |nvsi..iitv::lii,„i
iiiiiilirov(;cl .sbitc M(iiii,lii„t,j.
f tin; estate. (,lii:,.|v, in si,,].',, ^
e >:oii is not I'lititluil tu an al,.„ ,
lolaiu). ///V/,,,, V. HkIiii. iJid'iv
V. J''f,-'jit.ioii, Is Cliy. 411^ •'
^ an intcstati', iiaving nhtain,.,]
istratioii. i-fci-ivcd and ^m ]d
tc, went into occiiiiatimi „i tli|.|
■■(■d tho rents .-iikI |,n,|itstln.re„, I
sideralile sum in iiii|iniviiii it!l
led tli(^ infant huii-s ,,t tlitin-'j'
in) guardian liad liwiiapiMmitaiij
! pur.soiial estate, aii.l the pro!!
of tile real estate e(iiiif tn fcrj
1)0 ai)i)liedtc>\vanls iiayiueiit nff
;() reiiiilmrse iier fur snins ^|ltlltj
ainteiianee. Xo ajlmvaiiw inj|
nistratri.x for liev iniiinivimenti
; she was not to lie (•liarj.'f.hritlj
•ontiil eause<l by .siuhiniimive-
•u-J//, Bii,-nj V. Uniull, iiriiyl
ssned to .\. in eDiisiiloratini i
11 the land, lint the hwutit.
jnts liad, on an arliitratimi Ikj
l)(!on adjiidiied tn I!., ainlthl
I in no way inijieailitil ur ilid
was shewn to lie thesftttf
ee of the erouii td issiiu nitciili
those entitled tn the iiiiiirovi
tiiat though tiie awani nil
"tieers of the goveniniwit, tin
e set aside at the suit ui tlij
as ha\iiig iieen i.s.siail tiinm^
)r and iiii|iriivi(leiia'. .I'/'./ntjj
lit It, II (hv. •:>i\; attinitol
iSI.
lit dated in .laiiuary, ISl'1, ifl
granteil to tlii'eo |iaitiisiii*j
;Kt others, to eenvey the sii^
; wheiieve'i- the giiveninriifciii
;o or reetory iu Kiiigstmi, aJ
ineuiiihiMit theri.td, siieli oflj
1)11 trusts similar to tlina'tliel
il. lii.laiinai'y, IS.'ili, amto|
Kingston. In Mav, ISHr,
L the patent of l,sl'4 lia.l"
;en earrieil mit, ami niient I
therein appoiiiteil rwtur,
ill a eonveyauee te him as si
him and his sueccssor?, siilij
rusts set forth in tliegraalj
this iiieunilieiit oivateil 'il
aars (uiuler which tk plaiiilj
riaimcil,) whereby lio eoveii.anf,.,! t i •
.ailoliytlie lessoi L the ..' ":.''"■"';,'"""*•
,„• they would execute a renowa I ' '"' *'""= '"=
'. he agreed ujion, and tl.at',^; , ^^^^ ,"" t*-'"-
..iiMiiirmeinentH „r renewal of l.-l^ fl''''V"*"'*
sliimlil retiiiii ]iossession of tb.. .... • ' ' '•-'««'-'e
tkt the ineundient oithe.. as ^^ •'-"'-''-''
tolim power to bind his mj^^^^\"' ''''''^"'•' !
„„(..ovci«eiits, or to enter Into Zl '''■*>' ^•"'
Hindi a prion wouhl e.vtend the' I ''°'''-''-'""^"t
tk t«enty-.,ne years. Kirlnni..- ,' ''(-'.yond
An exeeiitii.v, who IukI .-i,, .,,,„, •.
tkiiioonie of the estate "iI "^ '•'""•godon
liemlei! iiioiicv in good faith I l'^''"*""''''. '-x- '
Jd estate, and ill ^her,;St;;:,-fi';;:-« the;
was in oimseouenee found |.>..,, , ' "■.'•3N and '
theestate; Held, that lli elf, ■^'!"''''''^■'' ^"
pimements .sh.Mihl be allow..,) o"f''" '" '"'■
Uaiioed the value of t, 1.1' ^'^'^ /r ''^ )'■•'.!
A liiirchase by a wife fn.n. i. 7
cmArati.uihe 1, nai dm i „ ''' '"'«'"""'. ^i.c
01 «v Hs she ha.l no notiee ^ The r'}'^'"^
alter th. pi.rehase, expended n.onA 7n '"""'•
mg the property :-Hdd, in ,• s,;?] "i"""^"
Mtereihtor of the husband t.,,.]'". i,, /i' '', ■'""'«•
,ol8iich e.xpeiiditurc, that f bo , . .• *'"-' '"-■'"•"*'*
|to.l,e«- that the debt for hieh 'thT'" ""f''^""^
^reeovere,! had been satisH ! V V'"'-""^"* '
ibrougiit ^/'//v. 7%,..;::;'i';'^,,^'^^^.otionj
A persmi in insoh ent eireunistni,,.,
Ibywayof settlement to his tern T '''•T''^^''^'' i
»f l»"'l. '"• whieh the set lu- 'ul '"^^ '' '"' '
Fitlilia JioiLse, but whie „■' ,, f'""''"'-''-''' *-'
mtil after marriage. ()„ .r bil r/,"",'!''^*^'''
km. in iiisolve^iey, t lie co 1 '.'' 'T *''"
h"'"»^''' "f the buij, ,^,, .'''* '^'-'^•^••"■'^'Ithat
kermaiThige, the ere.Iitor," Cl ^""'l •^'"'"I'^'^ted
h-erty; hut ga\e the u ,7.? '^ V''"'" <>» the
kthet.he wo^lld be p.i ' Iu e"/"'^'"'*,''' '^^^'^^ ,
Wt without the exilj itt; .:£?"^ '■"■■■"■
iriwt,) t he assiiriioes f I, , "'"' "'■•"■'■■age,
ftl.ture;a,,di?X«
attlement, the wife w; s I'f f I"'""' *" the
»^^'i.piiedi,.\,;x :«;:'"''' Y^'«'-'
, m t" the elainis of tlTe c redi ' """'V''^"
INDlAx\8.
-' It. ""»«i,.^i.„„,,„";;;' '-■"'•". » r- k. m.
, ^ 'fill was iiled (,„■ n
a contivjet for"::^^: / :,:;r-;- Perfonnanoe of
^f Before suit the ph intiff th """ ^"i'' *^"*"
I entered ujioi, the land i',"-' ^'«"'lee, had
l:^;;:^ 'S-ilich inereii" i'-itri— "en<^
•>-'»" ••-HeM, that the sul.h^.,/ .*!"""''«' """«
was u.ore than n2()() ...u H ^ .'i"'''"'''' ''nvolvea
t''e.-efore entitled^ toeo" . * " ,*'"^ I'^'^'ntitf Was
'f-'-ig;.-it';;. -;;;;. ■:;:;;;;f;v-.nontu;^^^^
|d eosts ot imj.rovenients I 1 "'terest and
;;1 to redeem, 'that t lie o . r/^^'-'W' "" ^
t') reeover for all „erniin, f ° ?*- "^'"^ entitled
""-■"ts, although Ik est le , r ^^'"« ""Prove-
"■'•'v.m.d in v^luo to , ,*;„ «'"^ ""t ''■■'ve been
-Ijende, thereon. nrZ^^'^^J^jj'th'^-uu.
-' '-by. IS,. """ \ . lhtli,',-iii<jtoii,
-■^iid where the iiiort,,., .
•'^••-enient were ^^^^Z^^ '^"t*^^"^ "'*" t'^'^
, ''fiietieially interested u-.'"'' '"^"'^ the i.er.son
' '"'-^ '"M.nivenieirbei I m ",^'"^-^»* "f thl vari-
•-'•""tted then. : -1 etl t£'/"">.f*""-l ''yand
tliose entitled through lii„,''i,'^''/''«- !•« nor
t ' redeein without ^i, u f ''^ ''" Pmnitted
meiits. //,. l''>i'ig' tor such iniprove-
'jVDEMXITY.
I^-|>K.^LV1T^• act.
Uiie of .several teinnt. •
»"f entitled to i,; |,,ii,| t ,,^!" '^ J;""t estate,
''"''""'Uioeonset'L ,11::;; ""''■'■'!• ''''^''^
;""-t.^^/.-v.r.4:^^^--j=-' with ..ecu-
tnisteesof real eif.,f , , - ~- ■
»"iitlieiirnpe,.tv 4i ', . ",'■*''"" '"'ITove! '
» '"ipimenieiits never wer,.'.^'' ''^"«'-'' ''"t
«n"g,atli„„ing the or wl "'^ •' -"'-■^''. <"'
*■ "'« the .stiiM,lat')!^T '•"""**•"' <-'J'y-
'" :h'' *''« l«a2 waracee,'.t"'r"""'-'"ti
^ ' hm-nl 1 1, ,., ,/ ■'^'^'''I'te.l, could be
^^''I'toi anneal t, •."•'"" ''' "'•. '21 Chv
I ' ''"eeediiiK.s wi.f.. o* 1
J';<lgnient by default and .!:. "*; '• '-' '^^t^'
I v'|ie£:i;;;:^ t^n':^,!^::;"'^/^ j-titicatin..
'^ef BoXD.
^^'' I-NDUN- Lands.
'il
1719
INDIAN LANDS.
i;2o
On a trial for inunlor, an Indian witness was | have tliat
flffered, and on his examination l)y the jndge it
appeared that lie was not a ChriHtian, and had
no knowledge of any eeremony in nse among his
tribe binding a i)erson to sj)eak the trutli. It
same legal eharactor w]^^. ,|j ,
pa;:s throngh Indian lan<l8 as in otlur partscf
their course, altliough they niiglit imt 1^. i^^^ j,
such portion of them) publio allii\v,iiii|.s
appeared, however, that he had a full sense of
the obligation to do so, and that he and his tribe
lielieved in a futnre state, and in a Supreme
Being who created all things, and in a future
state of rewards or punishment according to their !
conduct in this life. He was then sworn in the
ordinary way : —Held, that his evidence was ad- |
missible. A'njinii v. P<ih- Mali -Hay, 20 Q. B. 195. i
A debt contracted by an Indian while C. S. 0.
e. !), was in force, cannot now be sued for under
32-33 Vict. c. (i. M-Kinmm v. VaiiEn-ri/, T) P.
R. 2S4.— 0. ].. Cliamb.— Oalt.
Qua>re, whetlicr a judgment can be obtained
against an Indian even under the latter act. Ih,
An Indian wlu) is a British subject, and other-
wise (jualilied (in this case by holding real estate
in fee simple to a sufhcient amount) has an e(]ual
right with any other British subject to ludd the
position of reeve of a municipality, even though
not enfranchised, and though receiving as an
In<lian a portion of the annual payments from
the common j)roperty of his tribe. RiijiiM c.i:
ril. Gil)l>\. U'/iitc, 5 i'. 11. 313.— C. L. Chamb.—
Dal ton, a. C. tf P.
in any original survey, nor had any |iiililiLii„„|"
been expended or statute labour |ii rinnind nii
them. Bi/nwn v. Btnni, 8 (Jj. B. ISI,
A grant of lands, in 1784, by the then ;;i.v,.rnr,r
of the province of (j)uebec, and uinlor /»«,,,/„/
arma, to the Moliawk Indians and nthi'M. i"iii.
veyeil no legal estate ; 1 . .\s not Ih-Ihl' Iiv li-t^rs
patent under tlie great seal: 2. I''"! wimt ..f .
grantee or grantees capable of liolilin:.'. /y,„ ,]
S/k'/i/ohv. L'diii.^di/ c/ al., '.i (). li. 10,",.
I'iiiii "i an
INDIAN LANDS.
[See 31 Vicf. c: 4J, D; 3 J -33 Vkt. c. 0, D.]
Where an inijuisition had been found against
defendant, under our statute 54 fieo. 111. c. !),
the court refused to set the same aside on the
ground that the lands vested in the crown there-
by had been granted by the Mohawk Indians to
defendant for a term of !)!)!) years, in trust for
the support of his wife (a M(diawk woman) and
Miree children. Jiex v. Phelpn, Tay. 47.
A bill being filed to rescind a contract for the
purchase of an Indian right to certain lands on
the (Irand river, and to set aside the assignment
executed in pursuance thereof, on the grounds of
fraudulent misrepresentations, or to obtain com-
pensation for an alleged deficiency in the quan-
tity of the lands : — Hold, that as the whole
estate both legal and eipiitable was in the crown,
it was not a case in which the court would inter-
fere even if the plaintitl' had established the case
stated in tlic bill by evidence. Bown v. Went,
1 O. S. 287.
Form of conviction by commissioners appointed
under 2 Vict. c. 15, for illegally taking possession
of Indian lands. JAtlle et al. v. Kent'mij, (J O. S. 265.
Semble, that the recital in a warrant by the
commissioners, under the act, to dispossess the
party convicted, that thirty days' notice had
been given him to remove from tlie lands, does
not afford sufhcient evidence that such notice
was in fact given. 1 b.
The 12tli clause of the Highway Act, 50 Geo.
III. c. 1, cannot be taken to mean that every
bye-road or short cut, used by the Indians across
the plains or flats, is to be established as a per-
manent highway. It only means that roads
which, under the provisions of that act, are to
acquire the character of legal highways, should
Held, that the mere fact of a
Indian tribe assuming to .act :in a ihily aiitli,iri/rij
agent in the name and on bclialf of tlie trilK-
shewed no power in him so to act ; and tliereldre
a lease signed by him as agent, &e., ci.iivncil
nothing. And, couseijueiitly, tliat sueli lostee
had no estate which, on his bciiij; siiliscMimtiy
attainted of high treason, c<iuli| In; fdrieiUil to
i the crown, and vested in tlie (.■"iiniiiasioiitridf
f<n-feited estates, under 59 (ieo. III. o. I:'. II,,
The agent for the disposing of tliu liulian lamb
on the (irand river does not coihl' nmlcr the
designation of a district agent of the nmiiiiis-
sionerof crown lands, so as ti^ ;.,ititli; iHiichasfrs
bidding his certificate to the bciielit uf tliu iiru-
visions in the land sale acts. )''i»j/// v ,»,v„v
10 Q. B. 372.
An action against a coniniissionei' of Imlian
affairs for seizing and selKng Iniiiliur cut mi Indian |
land must be liiought witliiii .six iiKnitlis trnni i
the seizure, not from the sale. Jaici v link
12 Q. li. 5,W.
Semble, that the commissimiers for restniining j
trespasses on Indian lands are udt autiiiirizciltol
seize and sell timlier cut l>y the liidiiins them-
selves, or by white people with thi:ii' cmisciit. |
Vanvkck ct al. v, Sic wart rt til., Ill (). li. 4S!).
The 13 & 14 Vict. c. 74, pmhil.it.-i the hiiyinji
or contracting to buy from liidians, imt iiu'relyj
any lands of which they arc in actual i)iis.<e.s.>iiiii,
but any lands held by the gnveniiiiciit fiii'thvirl
use or benefit ; but, quaTc, wliutliur the ilaiisd j
of the act relating to trespasses on Iiiihaii lainljl
extend to any lands not actually iid^-sessi'ilbjl
them : — Held, that the indiotiiifiit in this case,]
after verdict, sufficientl3' averred the lands iiiir-i
chased by defendant to be Indian land.s. i.
lands hehl by the crown for tlicm ; and, (,lii*re,J
whether the act extends only tn lands ,mi1ii11,|
or as well to the lands purchased liy IndianslM
individuals : — Held, also, that no vari.aiiii; w,n
shewn between the land de.scrihcil in the indict
ment and that which the defondaiit wa.'* (inive
to have conti'acted for : — Held, also, nnnhjtctioi^
that the purchase was alleged to hive hetiifrna
certain Indians named, whereas it was in lad
from the tribe through their eouiieil :--Hi'l(l
also, that the evidence in this case was siitliiieiii
to sustain the conviction. Seiiihle, that thi
meaning of the statute is, that no mie
attempt to liargain with the Indians for the jniij
chase of their lands until he has first nbtaiiisj
the consent of the governnieut, and that it 1
therefore contrary to the act to make even a coi
ditional agreement, subject to their apiirovaP
the proposal should be made to gDvernnieiitJ
the first instance. Beijina v. Buby, 12 Q. B. 3
1?20
1 charactLM- wlure tky
laiuls iiH ill iitliiTiiartiiif
they iniglit imt lif i,x< to
) ^)\il)lic !ill"":iiicts iiudi!
nor hail any imlilicmimty
ituto lahimr iiL-rfiinuid on
ni, 8 Q. B. l«l.
1784, hy the tlii'ii giivcrnnr
.ebec, anil uii'liir Am»-'i/,i/,
; Inilians ami Mm\ fiu-
• 1. As uiit lii'iiiL'liy letters
■oat seal: •2. Ki'i' wiiiitnf a
■aiialilt! of hi>Mi"L'. /V(l,
M</.,!tg. B. ui.>.
leve fact of a cliiof »[ an
If to act as a ilnly autliiiriztil
°au<l on lichiilf I'f tlu'triln;,
him so to act ; ami thertiiirc
lim aH ai^cnt, &i-'., cmivuveil
isetiwi^iit'-V' '^'''^*' '*'"^'' '"*'*
li, on his'hciii.ii sulisnuitutly
reason, couM I"! fni'ifito'lto
ited in the coMnnissiiniersnt
ulcr 50 (ieo. 111. c. li /'/.
(lisiiosinjJ! of the liiilumlamls
3V does not eoiiif uiiiltT the
listrict agent of tin; cmnmis-
lis, HO as to ; iititli; inuvhistrs
;ate to the licnelit "f tlii; (iw-
d sale acts. >'""":/ v. .S'^'-i',
List a cominissioner nf Imlian
iv.\ selKiig luiiibcr cut "u Ui'Im
i.uulit witliiii six iiK.ntlis imm
from the s:ilc. J"«'< v. Bnat, j
e commissioners for restraining
liau lanils are not autlmrueato
nl.crcut hytheliiaianstkm.
Ite Dcople with tluMr iv'iisciit.
■t c 74, vr.ihihits tlie liuyinj,
Vmy from In.lians, lu.t iiimly
11 they are in aetiKil P'iS'W*".
ill.y the gnvernment Invtlivlt
., iia.re,°vhether tk eu.es
/to tresiassesonlnaumhnH
;\i,ls not actually V"ssc«c4 m
,t the inilictnieutintlusca>e,l
icieutlvaverrc,lth.lan.uH
ant to he In.lian lamk .. '.1
;rownforthcnKau,U).««,
.extemls only to lai.b - i-'M
L,lsimrchase,ll>yln.l>»»^';
"la also, that no vanm;. *J
elan.l.lescribe.l.uthen>A.ct
lich the .lefenaaut waM*>ve
•^:;^allegc.ltolnvel.cu..v^
.amed, ^vllereas it «. nOu
lirouuh their i^"""^''' •;'"■„
Gin this case was s*
e uovermneut, ami tli t it i
Vtotlieacttomaket've"^
Lt abject to theiravpn)*
'iVl^^mailctogovernnjenU
1--21
INFANT.
1722
The 13 & 14 Vict. c. 74, which prohihits the |
,ili. iiflaiid liy Indians, aiiiilies (ndy to lands
r, .irvtil for tlieir occnpation, and of which the
(ill,, is Htill in the crown, not to lands to which
„,■ imliviilii Imlian has acquired a title. Tof-
:',;v. ii'»/.srm, ir, Q. B. :t!»i.'.
lifft'iulant entered into a vorlial ayrei^nicnt to
farm the land of an Indian woman on shares foi-
live vwns, and took imssession. lie was fonnd
LiuiltV I'f '1 iiusdcnieanour nniler l.'t it 14 \'ict.
c'i. J'lijiii" \'- Ji'i'.i"i; 7 ('■ 1'. .'WO.
Hi'M, that an Indian might sell conlwood cut
jiv him "'■ iiiisiii'i'eiidercd Indian reserve land,
(,i wliii'li lie w.as in oci;\i]iation as a mcinher of
tli,tri!ie. Morrison, . I., concuri'cd on the ground
•diilvtliat the wood in this case might, for all
tiiat ap|ieared, have hiicn cut liy the Indian in
clo'iriii" tlie land with a view to its cidtivatioii
k'him! /•';/"« V- ^^I'-J-'ini, -J!) (). \'.. -JO-J.
Fuller the "J A'ict. c. 1."), s. 1, ]iarol testimony
kmie witness, deposing, to the liestot his hclicf
oiilv tiitlie apjifopriation of the lands in iines-
timi'ti) tlie residence of Indian tribes, and to
tliu will cession of such lands to Her Majesty, is
sullicieiit iirinia facie evideiK'c of those facts.
Hfifiiiii V. S/riimi, 1 (.'liy. ■■!!):.' ; h'ciiiiin v. Julni-
; ,(««, //;. 40!t. ■
In reyaril to lands in the occupation of the
Iiuliaus, it is uniu!cessarv, in the proceedings of
the inininissioners, nnuer 'J Met. c. 15, and 12
Viit e. !l, or hy express evidence, to negative
i tin- txeeiitiiiiis siiei-ilied in the latter of these
statutes. The linding of the coniniissioners,
uiiikr tliiise statutes, is not liad for not adjudg-
1 ing that [losscssion should he relini|uished hy
the tresiiasaer. Jfiijiiiti v. Sfruntj, 1 Chy. .'192.
The act respecting Indian lands, 2,3 Vict. c.
I l.'il, 1)., authori/ed the governor in council to
I Jtduv aiiiiiicahle thereto the act resjiecting
Itimhiroii pulilic lands. An order in council
was issueil accordingly, l^ight years afterwards
Iffiijther act was passed, .'Jl \'ict. c. 42, which
Icuntaiueil a clause authorizing the governor in
Iciimitil to declare the tiiidier act applicalile to
I InJian lamls, and to repeal any such order in
I council ami suhstitute others, and another clause
I siithmizing the governor in council to make
I regiihitions ami iui]iose ])enalties for the sale and
IpMtectinii of timher on Indian lands : —Held.
I that the Tinihcr Act continued in force until
Ireviikeil or altered hy a new order in council.
]TkAiii,rii>'ii-(!riii-r(ir\\ Fi,ii-l<l.<, I8(;iiy. 4;«.
INDICTMENT.
I. flr.xER.vi.i.v — SVc C'rimixai. Law.
II. Tor, Xns.vs'iT.s — .S^•( Niisanck.
The iirnductiou of the original indictment is not
liufcicutto prove an indictment for felony; hut
hrwdiil must he made up with a proper caption.
|i/'«/-;/v. Lhth <t ((/., 11 Q. K 2<H!.
Inaii action for maliciously and without ])roba-
lUe cause arresting the plaintiff i—Hehl, that an
Inemiilitiatioii, hy which the indictment ap-
Ipeareilto have no general heading or caption,
In* not evidence sufficient to sustain the action.
liiloii V. Wriijht, 13 0. P. 14.
Semble, that a person tried for felony ami
aciiuitted can only ohtain a co])y of the indict-
ment and record of aci|nittal, to he used in an
action for malicious prosecution, on the fiat of
the attorney general; and the granting or re-
fusing such a])|ilication cammt he reviewed hy
this court. The aindicatiou here was for a rule
calling on the attorney-general to shew cause
why jmlgnientof acipiitt.il should not In.' entered
on the indictment; Held, that the indictment
not lieing a record of tills court, or hrought into
it hy ccrtiiuari, the court had no jurisdiction.
/.'-■;/'»(( V. Ivy, 24 ('. V. 78.
1.
II
INFANT.
I. ('l)N'n(A(TS 11^-.
1. Df'iiU, I72.S.
2. Olhi-r Ci>iifrni'/.i, 172."..
,'1. Iiitt'ijii-dl'inii mill Ariiiiliiiii-i', 172.'1.
II. AcrroNs AND l'E(o('Ki;i)[Mis nv ANr>
AdAINST.
Ai 1,11 n:
(a) Ejiiinniil, 172.").
0)) Ollirr Artkiii-i, 172().
2. Ill Ei/iiifi/.
(a) Forii'/iiinri', 1727.
(b) Olh-v Siiitx, 1728.
(c) Friniil nr Mi-in/iri-si'iilitliiiii hi/ fii'
j'iiu/.-<, I7:<2.
(d) Piirfiin /it Siiit^—Siv Pleadinc IX
I'A>nrY.
,3. Si'riirifi/ I'lir t'wt.i hij Xr.ii Fr'nnil Sfi'
Co.srs.
(ilJARDIANS.
1. Altl>lirii>iiiti Id A/i/iiiinI, 17.S3.
2. J'crsijii A/i/iiiiiili'il, \~'M.
II. Jii'iiiijfiil anil JS'i'ir Aiijiinnlninil, 1735.
4. ill III- r l.'iiwH, Vi'M\
CisTODY OF Infants, 1737.
1. Of llliiiithiKilc dillilnii -.sVc Bastard.
Inkant's Estate.
1. Maiutfuiiiiii' (iiiil Ailriuirewcnt.
(a) (u'lii'nilli/, 1741.
(b) Of lUiijiriiiiiiti- Cliili/reii—Si'p Bas-
TAUll.
(e) CoHililiDU* la Will—See Will.
2. Part it'll III, Leone, and Sale of.
(a) Prarfire on Aj.^ "zatlon for, 1743.
(b) Othir (;ii.if:% 1743.
3. Inrestineiif of ^funel|)l, 1747.
4. ()llii:r <'ii.-ii'x, 1747.
5. Sni'.i for Speriti'e Performauci' where
. Iiifiiiit.f' lliiililK lire conceriieil — See
SPECIEU' PERFliRMANTE.
G. Trustees of See Trusts and Trustees,
VI. ^IiscELLANEous Case.s, 1748.
VII. Appuentkes -.S'ee Apprentice.
VIII. Illeuitimate Cjiildeen— iS'fft Bastard.
IX. Seductiok ok— .SV Seduction.
^1
1723
INFANT.
1(24
I, Contracts by.
1. Deedn,
A conveyance of lunil or mortgage made by
an infant is not absdhitely void, l»nt voidable by
liira, either before or after he uouieH of age. Doc
a. Jacknon V. Woiiilnill'i; ~ (.). H. ;W2 ; All/lx v.
J)nvU, 9 C. P. M{.);'Fi<itlu'i-Klini v. MiDuiitll,
15 C. P. MS2; Oikln-Utw Raniiin/,-27 Q. 15.500;
Milkr V. (Mrnuiler, 12 Chy. 34!).
Defendant, a minor, imroliaaed an estate, and
|;ave the vendor a mortgage for tlie pnreliase
money. The mortgage wa-s afterwards assigned
to the jilaintitf. On coming of .age defendant
repndiated the mortgage, but atlojited the pur-
cliase, by bringing an action to recover posses-
aion : — Held, that tlic mortgage l)eing void, as
the deed of an infant, a lien for the imrchase
money resulted to the vendor, and thiit such lien
passed to the i)laintifr by assignment of the
mortgage. (Iraci-x. Wli'tl^hiw},! C'\\y.T^\)\. See
Ftntherdon v. Mclhmcll, 15 C.lM(i2; p. 1724.
A deed executed by a man and his wife (she
owning the est.ate) under ('. .S. V. V. c. 85, while
the wife was undei' 21, was lield good and v.alid,
independently of tlie statute, t" ]>ass the hus-
band's interest in the land, altiiougli not sutH-
cient to bar the wife's. Doraii v. UchI, 13 V.
P. 393.
Qniere, whether the deed of an infant, unless
legally avoi<led, would operate by estoppel to p.ass
the title to the land, as soon as the fee vested in
him on obtaining his majority. McViqiinn v.
Jfcdiiirc, 34 y. B. 157.
^■<iill V
2. Other ('(nitritrts.
The 27th clause of 13 & 14 Vict. c. .''..3. does
not restrict infants from suing in the Division
Courts for any thing but wages, but was inten-
<led only to enable them to recover for their
<iwn labour contrary to the principles of the
common law. Ferris v. Fux, 1 1 Q. B. 012.
Quivre, whether if an infant hire himself for
■wages to his parent, the contract is l>inding on
the latter. Pcrlcl v. Pcrhf, 15 Q. B. I(i5.
Where a minor enters into a contract of hiring,
the wages be earns belong to him and not to his
parents. Dcltudernhr v. liartun, 12 Chy. 50SI.
As to the marriage of infants, See liiijina v.
Seeker, 14 Q. B. 004 ; lii'iiina v. Bill, 15 (.1 B.
287 ; lieijinn v. liohlbi, 21 Q. B. 352.
Declaration by the administrator of A., alleg-
ing his death caused by negligent management
4)f defendants' train. Plea, setting up that A. was
ii newsboy in the employment of C. & Co., selling
papers on defendants' trains, under an agreement
between defendants rnd C. & Co., which exemp-
ted defendants from liability. Quiere, if sucli a
contract is to be considered as made with the
jKjrson carried, and if so, as to the effect of his
oeing an infant. Alexander v. Toronto and
Mpmin<i li. W. Co., 33 Q. B. 474 ; H. C. in ap-
peal. 35 Q. B. 453.
3. Ratijieation and Avoidanee.
• The bringing an ejectment by an infant to re-
gain possession of land conveyetl by him, is so
complete an avoidance of the deed tliat he cu
not afterwards ratify it. />(«■ ij. j,„.;., ' '
Woudniffe, 1(1. B. 332.
A cont-n.ct of promise of marriage to an ■ .fan*
can only be avoided i)y the act of tlie infn, ,!,,|
not by the act of her guardian. /'riW.< v I/,'
W, 2C. ]'. 257. ■ ■''■
Where defendant, during niiiwit;u, cunvt.vi.i
land in fee to the grantor of tin: iihiintii)'. an,]
thougli lifteen years had elapsed siiu'c liis I'mi,,.'
ity, took no stejjs to rcpuiliate his ,VxA, iinJii
he defended on this ground an iictinn i,{ m„.,
ment brought against him for tlie lane], ^ ,,„|
veyance of which had in the iiitiiiin, and aittr
the conveyance to tlie plaintitr, ln'cn iriiulp tn
him (defendant) by the persmi entitliil ; \\^\\
that it might be assumed, under tlif iin\VLr.,ivt.iJ
to the court to draw inferences uT f,-u't, fhit tip
defendant had contirmed the decil. and that he
could not now so set up in this .suit the M^wk
of infancy : (irace c. Whitehead, 7 ( 'Jiv. .-|i)| ^^
marked upon. Friil/ier,<loii v. Mrlhi'mll l-, y
P. 1()2. ' '
A mortgage by an infant ni'iy hu ■.\\,i\.\^\
(hiring infancy, and defending liy guardian an
cjeetment brought l)ytlie inortgagi.'e is ;i .•suthiiMt
avoidance. tl'ilehrUl v. /'iini.idi/, 27 t), \>,, ,-|(H),
An infant cannot, during his niiiid-.-ity, avfiiil
on the ga-ound of infancy, a luase wliit'h isf.ir
his bonelit. Jfart.i/iorii v. Furln/, ||i('. p, |;j;i
l)eclarati(ui on dcfendan':'s (-'oveiiiuit t'l luvuff 1
a mortgage to one L., on land cduveyi-'d liy'li
to the plaintitf, alleging n(in-|)ayiiieut, inula sale]
of tlie land under the mortgage t i mie M., wli
evicted the idaintiff. Plea, oii ui|uit;ilde gmimilj, (
that before the mortgage fell ilui', defendant, at 1
the plaintiff's re(|uest, advaneud to him tl'.j
money reipiired to pay it oil', wliieli the iila-.itilf J
promised and gave his Itoiid to the defeinlaiittiil
do; that afterwards the plaintitf, nwiiiydtitii-
dant .^400, gave him a mortgage tlierefnr npiiii|
the same land ; that when the incirt^.ai'e ta '
fell due, the plaintitf being unable tii jiavititfl
according to his Ixmd, it was agreed liy all lur-
ties that L should sell one halt of the lainl furl
more than her mortgage, and ]i:iy the plaintitf I
the surjdus, and rele.ise to the ]daintitf tlie(rtlier|
half : that L. .accordingly s(dd halt the laml toj
M., and released the other hilf to the plaiiitilfj
by deed, in which defendant jciineil, which ik"
the plaintiff aeeeiited, and I.. als(] paid tutliel
plaintitf tlie balance of the pnirhase iiiuntyrn-f
ceived for the otiier half, almvf L.'s iiinrt^'age.l
Replication, that the plaiiitiH', when all tlusej
transactions took place, was an infant, hyri'asoa|
whereof his alleged bond and ninrtgag
voidable, and he has avoided the saine;-HeH,|
that the replication was good, tor that there wai
nothing alleged in the [dea to wliieli the plaiiitift
was prevented from setting up hin inl'an'.'y.ua
answer, and he might avoid the Imnd ainliiiort^
gage whenever they were relieil iipmi :i!,'iiiiul
him. Galkiij/ier v. (Jalluijhrr, 'A) y. B. 41j.
W. 'S[. came of age on the 27t!i August, lS.'i/j
On the Ist of July previous, he e.xeeuted a ileeT
of the premises in (juestiou to l'., under whei^j
defendant claimed, which was le^dstered mitlij
2()tliof August. This deed was leacknowleild
between the 28th and 30th of August, amltU
re-acknowledgment registered on the ilthofSsi
tember in the same.year. ( )n the 28th of k\\<g^
1T24
i)f the lU'i'il tlmt lie can.
it. Jfi" '!• J"''k<iiH V,
,0 of iiiarriiiv'e to an ' .fimt
the act of tlic infm .and
niariliiui. I'lu-hi v. Mmj.
ilurini; lumn^c I'niivuyo,!
utor i)i till! |il;nutitV; iuid,
iii\ eliil'^i'il Kiiii''' lii'' iiiiij'ir-
ru\niiH:itu Ii'm ilot'il, until
groiiU'l 111' lulii'ii iif fjwt-
t liim for till' laml, a oiii
I in tli(^ interim, iiiul aiur
liu iiliiintill', lifi'M mail>- 1"
\ic \K'l'Sim oiitilliil ; Ikll,
iniiil, iiiiiU'i'tUo pnwur ;;iwii
iul'i'Voiii;i!s 111' I'lu't, tint tW
•nied the iU'imI. ami that ht
, \ii) ill this suit tin; Avkwn
WhitfhoatlJ t'liy. Ml, ri
ther.</i>ii V, Milhiicll, l.-iC.
an infant uny ho avuiU
1 .lofuiiiliiig hy ^iiivviliau Ml
(Vthc niorti^ivm^e is iisutticieiit
../v. Ilanr^^ni, -r, (). K :m.
,, (luriii'4 his niiiioritv, avoiil,
iiifaUL'y, a loixsi: which intVir
ihornv. E'irh, lltCl'.Kt'J.
ofeuilaii'-'scMivfiuiiit tMV.iy4 j
1j. , (111 huiil I'liiivi'Veil liyliim
e.'iu" ii(iii-li:iyiu^'"t' iimlasalc j
thi! ^iiiiirtgayu t 1 line M., wliti
ff riea, (111 L'liuitahk tirminils,
ii'ti'iU'u fulliliu', (kfciiilaiit,,it|
[„ue8t, ailvanceil t.. liim tk
,Viy itolV, wliit'h the iihr.itiSj
' his bond to thuaclfiulaiittoj
(Is the pkiiititV, owingileMi-l
lini a iiinrti;age thuivf.ir um
Lit when the iiuivt-ago tn l-l
titi' being unahle tii liayitnlfl
,u.l, it was agnvilhyallpl
ksell one hah' nt thelanamrl
Lrtgage, ami l^y 11'!= pl™"*!
lle,SetothMilamt,itlK-Wrl
,,.Ungly sol.l hall the laicltJ
the .'therhalftotheli«.mfl
(lefeli.laiit .ioiueil, \vhKl' ^11
,,te.l, and 1.. ^'1- l'^^"» ^"H
Le of the imrehase lU'im) k-¥
'er half, above b.'s m>^^iifj
, the iilaiiitilV. when all t*i^
Llace, wasanii.lant,l.y'«*j
Ld bond anil nmitg.'gc «erf
las avoi'ledthe saii'e:-HtH.
In was good, h'l- that tlimwi'
the l.lea to which the lilaum]
in setting up hi^; i"t''"7''"''3
r^UtavonUUelMUilai'M
Tey were reheil ui|.m ._^.'.i«|
,ai-e on the '-'Ttli Aug"f ■ ''^J
Inrevious, heexecutedaileei
ln;stioi;tor.,,.>niler;J
\\ which was i-e,!^istei-e'l """^
' 'h sleed was re.ack.'o«leiM
ad 30th of August, ai.;l^
■,r, I'isteredimtlieotbof!^
r^ear Onthe-JSthofAug^^
1-25
INFANT.
1 720
I JU(!
faviiur '
meiit i
iljj'ment
was entered ni> against W. M. in latter negleet to [ilead, an order iiIm may be
f the jilaintitt' on a confession of judg- ! made that, mil
till
ifaiits jdejiil witliin a
vssumlisit signed the same day, and the | L'iveii time, tlie dt^inandant may assign .loliii l>oe
up
Kill a "'
(.laliiied through ;i Hale by the sheriff
rit iilaced in tlie slieritl's liands on tiie
. , iL,f^- . 11.1.1 4.1...4. i.1 1....I
fth (if Oetiiher, IS." : Held, tliat there liad
tor tlieir guardian. Ittihinmni v. liltimi'iharil tt
al., 9 L. .1. '23.— V. L. C!hainb.— Draper.
kcii 11 s»
liV
tlicieiit re-ael
knowledgmel'.t of the deed ■^'' '."^"^ l''""'*'"" ""' ^";' '"'' :' ''''^ "^ ''J^'*-'*-
.P . ... I liiittir. ni liiu iill'li 11:11111. • liiir titfoi* 11 1 .1 mil i*,iiiiiu
the infant, and tliat the confession of judgment
line ; but after aiijiearanee
TO lint per se mi
(id iliiiii- to avoK
I the deed I •^"tc'ed lie eaiinot take any fmtlier Mteji without
V. Midiiiri; H4 (^ B. 157.
}kt'<'i>i'i
All exe
l.iit v.iiila. - . . • ,• * 1 1
Where, tlicntoic, a party said to nave lieeii
ml intoxicated when he made the
i»'
iviiig a iiL'xt friend ajipoiiited, and any siieli
further proeeedings in tiie iiifantM
own name
liaiveof lands by an infant is not void, ; will he stjt aside. Ciuniilnil v. J/nUii irsun, .'j 1
iMc only, and as such may be eonlirnied. It. !tl.— C. L. ( 'lianib. Hagarty.
iiiiiler age
isohalit.'e, eiiiitinilei
I, after eomilig of
I
,s^ssii,n of the pro[ierty received in exchange
(b) Olli-r A</;
811(1 aftorwar
Is sohl or exchanged it for other
.An infant deiiiaiidant
nay sue in Mower, ami i
il if
imipiT
tii.iii.
■tv, it was eoiif
(lered sullicieiit coiitirma-
an infant tenant be sued the parol is not allowed
iii'/i' (■ V
(Mtniiiili'i; 12 C'liy. ;t49.
to demur. /'In In
I'hrln
Dra. .'<Sf;.
II, AlTI"N;<ANl>
I'l!
OCF.KIUNdS
1. At Liiii:
(a) Ejirtniinl.
HY AMI .\(iAi.Nsr.
In trover, where the jdaiiitill' sued by his
mother as his next friend, the court held that
the Litter, by allowing heisclf to be made guar-
dian for bringing this suit, did not waive any
right she might have had to the goods sued for,
I and that her consent to liniuiie ju'ochein amy
.as no legal estolipel on her. JJiirLrr v. Tnhoi;
When a niiiior gives a bond to convey, and he [ .') (). S. ,')70.
,r Ms heir afterwards brings ejectment ag;aiiist ^ ^,\]^^r^i a father took shares in an .•i>
I the .issigiiei!
f the obligee, the defen.lant is en- i f,„,„„.,i t„ l,„il,l .^ steanil
titW to il demand of possession
fit, .'i t>. S. 4«t).
JJw d. A
lat, in the
sociatiou
lie of liiH
son, then an infant, and during the niiuority of
' the cliild, directed tw o of the .shares to be trana-
iif.int will be admitted to defend as land- | ferred to the defendant, which was done :- Held,
lian. Dw d. Siinil<rno)i\. Hik, T. that the iiitant could not, on attaining his nui-
I jority, maintain assumpsit for money had and
liv I'uai'i
iL^iUViet.
Ai'uardiau apjiointed by the Vice t'hancellor
' ke
the petition of an infant, cannot make a , ^ .jo
received, to recover divnlends on these shares,
received by defendant. Hull v. liiilm'' . ,'{ ().
[uiKili tlie pe. • ' 1 • 1
1 demise fiir the puriiose of trying the title to the
linl'aut's land in ejectment. The demise should
hit hv the infant. l>o(i\. Mar'niiiiicx. Alf.nniiln;
|ig,"B. 120.
A I'Uiirdian appointed to an infant, under 8
ili^ii, !v. c. (!, see. "2, may bring ejectment to try
(tilt infant's title. Senible, it may also be brought
jiii tlie name (if the infant. Vuv d. Atkinnini v.
|j;,-i,M/, 8 (,». H. .•i44.
Hililthat the guardian of an infant appointed
IliiiilerC. S. r. ('. c. 74, can under sec. .') consent
ltd the name of the infant being added as plaintitl'
linaiiaetuiii (if ejectment which seems to be for
Itlie litter's heiiciit. Vua're, whether such con-
Iteiit slKiuld he in \\riting. O'jilrk v. Mrltviij,
ll5C. P. 557.
C. S. U. C. e. 74, s. ,"), does not vest the real
(State (if an inf.ant in the guardian, and such
piwilian eamidt, therefore, bring ejectment in
his (iwii name ; he must proceed as guardian in
Iht name (if the ward. I.'lie last case distin-
islieil. K'iniiiijv. Kfiixomhc, 17 C. 1'. 0!t.
PLiintilf in ejeetiiient, though an infant, sued
aiiersdii. iX'feiulant liecame aware <jf tlie iu-
ffln ,it the Krst trial, but took no objection
iiitil after the second trial, when a verdict was
1 against him fur nim-appeiirance. He then
;il ti) set aside the proeeeiling on this
loimil, anil fur want of jiroper notice of trial :
Weill, that defendant was precluded bj' his
lay, anil the court refused to interfere. Ham
ti,!ii, 3 P. H. 10. —Q. B.
I Where in dower, .iftev declaration filed and
fe to plead served upon infant tenants, the
The mother in possession of the land belong-
ing to the heir, a minor, may sue in trespass (j.
c. f. as the next friend of the minor. •Jnhiitot'
V. Modillls 7 <i». 1'.. :i(i!t.
Infancy is no ground for discharging a person
from arrest. Clarh v. r.'A;/-/,-, .S l..^^ I4;».—
('. li. ('lianib. liobinsun.
The "27111 clause of \',\ k. 14 N'ict. c. "iS, does
not restrict infants from suing in the Division
Courts for .any thing but wages, but was inten-
ded only to enable them only to recover for their
own labour, contrary to the principles of the
cominon law. iurri-i v. Fox, II i^}. li. ()12.
Held, that the fact of the plaintilf, an infant,
having sued by attorney and not by proehein
amy was no ground for setting aside the process,
for bj- the practice the proehein amy niiiy lie ap-
pointed at any time belore declaration. Quiere,
however, whether ,as the writ, and not the de-
claration, is now the eommencement of the
action, the appointment should not more pro-
perly be made liefore suing luit jirocess. O'Ueilli/
V. I iiiiiri'ri/ d ill., 2 P. H. IS4.-('. J., t'liamb.
liichards.
An appearanoe entered by an .attorney for an
infant defendant (no proehein amy having been
.appointed,) is a nullity not an irregularity.
Funntahi v. McS'incii, 4 I', i;. '240. -C. L.
C'liamb. — Hagarty.
Interlocutory judgment cannot be signed until
after proehein amy appointed, lb.
An infant cannot appear l)y attorney, but by-
guardian. If the appeariinee is by attornej% all
i:
INFANT.
i::'i
mili.it'i|ii('iit jinirtuiHii^'s iiiiMircf^iilar. An nttcir- , ami tlio ftflidiivit in NiH)]K)rt of tln' iiidtinii n
iicy whip ;iiijK';ii'M fur :iii inriiiit, knowing of lii« j not stiito that tlu^ iilaintitl' liinl iiiitiii. ,,1 ,,|,''|
infancy, will 1m> (inlorrd to pay thu coHts of all ] allegi'd triiHt, tlio motion wan ivfiiscd ^jti, |.|[ '
Hnl)SL'i|nciit prociM.'dingH, and of tlio aiii)lit'ation l'',«tin, \'.('., dins. Iti, *'
to Hi't till' saniu aside. Mnriiii/iiii v. S'irilli il n ., . .. . , . .
ol.. .-, I', li. '23o. L\ L. Chuiub.--i)iiltou, C C 1'^''' • '" :\ '"'* '''=^''7* '.'«'","-^t "'f"ht ,1hV.,i,|,
,j. /• , ant.-i, tliat tiu; ilecivo having lifcn i,y„],, j^ .,
lifu-tiint' of tlii'ir ancestor, it was imt iicic,,;,,'!'
to innci't in Iho final order a ilay tu th,. inf,, ,
to xhew cause. Sutln rl'iinl v. /)i<-l:..,,ii •>('|. .
t'hand). •_'."), N'aiiKonghnet.
(a) Fiinc'ti-uiri:
On an ni>iiliciti( ii hy the executor of a mort-
gagee, for the infant lieir of a mortgagor to con
The court, where it is cousidcicd liiiiiiiiia|t„
the interests of an infant diMcndiiiit, will i|j|..,,'
vey after the executor has obtained .v linal order >' ""'': ""'t^;"' "' ■■' '"'-eelosur., without it.,|„i,.,„
for foreclosure, the lulitiou and alli,l;ivits .liouhl ']">' 'H"!>^^t}'< ''"V';'' thy vx^vusvs of si,,.], ,,|,^
1.U entitled, not in tho cause, liut in the matter '/""^' "■> ' I'l';,!' '"'",", '.'r. '^'^ '"• '!' V l.-l ;
of the infant, /n ,;■ llo<h,,.^, I Chy. -Jf:.-.. Lii>n;,sun v. htzyi'raM, <) (. hy. ;!7|.
AVhei'c a inortgngee dies intest.itc, leaving an
infant heir, after a decree for foreclosure, lnit
hefni'i/ the linal onler, and liis exocutor revi\es
the suit anil olit.iins such order, and the mort-
gago delit eijuals or exceeds the value of the
jiiortgagcd premises, the infant lieir is a person
sci/ed upon trust, within the meaning of the
statute II (leo. IV., and I WilL IV. c. 10, s. (!,
and may l>o ordered on petition without suit, to
oonvoy the estate to the executor, or to u pur-
chaser from him, /li.
lint the court will not make the order, unless
it apjieav that the applicitioii of the estate in
Where a mortgagor had coiivoycl his ,',.|,i,y
of redeiuptioli to the trustees of his imu'ri;, ,',.
settlement in trust for his wife fur lifo, ri'iiuit
di.'r to his children : and a hill of fii|',.^.|iij||f,.
was tiled ;ifter his death against the tl•ll^t.•u,1l|,i
widow, to \\liieh hill the chililnii, licin.r i,,.
faiits, w(ire not made parties, the ei.iirt ;'Miitr,|a
decree containing the usmd reference t", ii||.|,jf^
whether a sale or foi'eclosure winiM lu' ii,i,ro i
lieiieticial to the infants ; and gave liln rtvfiii!],.
master to make the infants piirties in Ijisi.ili -
iJirkMiii v. JJnijK i; II ( 'hy. ."ili'J.
AVhere a hill by a mortgagee against :iii infant |
i.imv, ;::
uitilir,.
an eiuiniry whether a forci'lnsiire i.i- ii nalc > j
more for the lienelit of the inhiiit, itisimt luvi-
sary to direct the master to iii.ikc the ixtiiiturJ
of the mortgagor a party in his olliee, in tiuu.itj
the master's opinion hi.'ing in Nivuur nf iisulc.J
Triix/ ami Ludii L\i. v. McDuitill, VlV\\-^.\%.
Where the heirs of the nmrtgngnr aiv infants,!
and a foreclosure suit is instituted, tliu nilc nfl
the court is to grant a refeniiee, as ef cnum', tol
iiniuire whether a foreclosure or snie is iniivei'irl
cution of the conveyance. Cm Imaii v. ('Inhiril,
2 t'hy. 'IWl
^Vhere a decree of foreclosure again.st an in-
fant defendant did not reserve a day after his
attainiu'' twenty-one to shew cause, and upon
Lis attaining his nuiiority, the infant applied
upon attidavits to put in a new answer and raise
iV fresh defence: Held, jier enr., lilake, ('.,
ah'Seute, that the ndief asked could not he ob-
tained without a re-hearing of the cause. Mair
V. A'« /•/•, -1 t'hy. !.'•.'.•?.
rpoii the re-hearing of a cause, where the
decree of foreclosure did not reserve a day to
the infant : Held, per cur., lilake, I'., tlis.s.,
that in decrees of foreclosure against infant de-
fendants, a day to shew cause after attaining
twenty-one, must be reserved to the ilefeii-
<lants. //(. Aftirmed on appeal, 2t!th Fehrnary,
IS.-)--'.
Where, under such a decree, an aiiplieatiou is
made to put in a new answer for the purpose of
raising a defence difl'erent from that set up by
the guardian of the infant, the application must
J)e founded on afHdavits shewing that the new
«lefenee is a proper one to be permitted. Where
therefore, tlie ground of the application wiia,
tliat the mortgagor was a mere trustee for others,
It aiiiicav that the aiiiihC'itioii of tlie estate m ; , . 7\, '•' '■■<-o'>n^>- i'a'""''L
question is necessary lor the satisfaction of the ! ['^■"' "' * "' "'<"'t«agor jways a h,ree|,
.lel.ts of the intestate ; and a reference as to this j ^'.'.^ .'l"\\l,V.'''.!;I!;J:'''5::^^*;.''!.'.''! ^''^' ""''
will he directed. //;.
Form of a decree upon a hill for foreclosure by
a mortgagee against the infant heir of the mort-
gagor. Sttiiii(l(i:<i)ii V. Cti.'iltiii, I Chy. .'!4".(.
Held, ]ier cur., .'^iwaggc, ^■.('., diss., tli;it in
foreclosure suits against infant ilcfeiulants the
court would make a decree for summary refer-
ence to the niastei' under the 77th order of May,
18.'")0; the decree, however, directing that in the
p-oceediugy before the master the phuntitf should the benetit of the infants ; but if alli.hivits are
))e obliged in the lirst instance to prove the exe- |iii.,l to satisfy the court as to the iinipiTdoorrt,
or if the guardian consents, the refereiuy iu,ivl«|
dispensetl with. />«<//<'// v. Wi ;r;//, 13 lliy. itl.f
On motion for decree in this wnise, Spwi^e,!
\". ('., decided that inlaiit ilefeuilaiits uiu li'iil
entitled, as a matter of eiitir.-ic, tu an I'Miiiiiryl
whether .a sale or foreelosiir'; is must t" tlioifl
benelit, but that some grounds iimst lie.sknvij
G'riihiiin v. Vm'U, '1 Cliy. Chaiiih. iM.
It must appear clearly that the iiwster itpirti
a sale to be beneticial for inlaMts, liel'niv al
order for sale M'ill be made. Eiln-nrilxw lUitl'ini\
2 Chy. Chamb. 48.
Where in a foreclosure suit, the plaiiitili's
licitor had taken proceedings after tlie |ilaiiitilll/
decease, in ignorance of that tve'it : Hi-
motion to confirm those proecciliiiijs, tluit i
order could be made except hy eiiii.suiit, .la
there being infant defciidauts, im hiiniiiig
sent could be given in this ease. I!ivliii«i\
DurU, 3 L. J. N. iS. •20(i.— Chy. t'liamb.-Tayio^
Swirtarij.
(b) (Mtv Siills.
Where infants were the only parties resiili
within the jurisdiction of the court - tlii'ir ueJ
in siiiijKJrt of t
;lie iiliiiiitill' riai
iti.
Ih
1728
""'"''■' "I' Kll,. I,
IlK.tl.in WU8 ivfllsnl with ,.i,,t,.
revivud iiKaiM.sti,u-,ii,t,i,,,- I
■civu liuvniK l,r,.|i ,n.„l, i„ „ '
an.Tstnr, it,v,-u i,„t ,„.,,.,„ ,
'',"'■' '";''•'■ '^ ''">■ *"♦!"■■ infa,,,,
Sulhrrhnul V. Dh'h,,,, „ jr."
iiKdUgliiiut. ' " •
I'ojt is '•"ll-'i'lrlnl l„.||,,|i,,|,,|
111 llifiiut (liM'iMil.'iiit, V.ill.lj,.,,,
i'"n'yi'..siuv, Miti,n„t,.,,|„i,i;;:
"'"' til" fXpflLScx „l sllcli v,],'
''""""'" V. S,:,lt, (Win. r,;
/'■/v'/.^!)Chy. ;i7i, • '"'•
n;.'or li;i(l envoy.',] his ,,,„it,.
t ic. tni,stw.,s „r |,is niarriai
>t tor Ins w,t.. Inr li,., r,,,„.,jt
ivu : .•111(1 !i l.ill „f f„:v,l.Mir..
<l<.'iltll;l;;;lillsttllctnM.iv„i,l
' ''ill the .■liil,!,..,,, l,,j| ■,.
iulu]iiirt.ii's, tla'c,,iiit;,,.i|,t,,ii
the usual ivfcivnc,. ti. ii„,,„>„
'r tnroclosuri; \voul,l h,,. :i„,|v
iitauts ; ami mivo liliirtytutlio
lu infants jKU'tiw iiihii„tfiw ,
;■, 1 1 ( 'liy. ;i(i:'
' a niortga^'fo ngain.st an iiifant |
:agoi- jirays a tonvlosiuv, aii,|
!"'"t'-'t''ti 't' till' infant iliratj I
liLT a toi-(,'clcisiirc (,r a jiale \A
lit of tho infant, it i.snut mn's.
master to make the ixiriit.jr j
a i>aity in liis ulli,v, iiuiwcf
ion Ijeiiiy ill tavnnr nf a sale j
'o. V. Mi-DuwII, liMiiy. I'Jii.'
3 of tlio inoi't,<,'ai,'(ir ak iniantjj
.suit is institiiteil, tlie nilc .
lit a ref(Mviiee, a.-i ef cinn-sf, taj
foreelosiii'e oi' sale is iiinrofurj
infants ; Imt if allhlavits arej
: eourt as to tlie iirn|ier(li'iTrt,l
consents, tile refiTeiicciuayl*!
DikIIciix. linr-ii, 1,'lChy. i-|i.f
leereo in tins cause, Siira.ve,]
lat infant (lefemluiits arc nolj
tter of eiaifse, tn an i'iii|iiirj
r forcelosiir'; is niest t" tlieii
ioiiiu gniiiiids iiiiist liesliiwiij
, -1 Cliy. Cliaiiili. -.'4.
.'learly that tlie master iv|i"rti
cial for infants, liefeiv .iliuaf
1 10 made. Edironlaw Hiniinim
closure suit, the ])laiiitilf's
irocui'ilings after the [ijaiiitilf j
uieo of that eve'it :- Hell
11 tiiose pi'oeeedines, tluit l
lade except liy eniiseiit, ad
t defendants, nii hiniliiigcn^
■en in tiiis ease, (imldimy
•_'0().— Chy. (•lianil).-Taylol
) Otiwr Sidl.-:
■ere the only parties rosiilia
ition of the comt-thtiruef
13
INFANT.
fneiid hnvinif (lied and no iw.n, i.
i.na,,pei„/:.(i-.secu;.;t:;:r:,«':"^:^''""''^vin«,
I fneiid hnvinif (lied and mo iw.n, i. i-nn
Lea appuiiited - seer t V , . r T"^'"'' '"^^'"y ' When If . ' ' ^^
l«it if tile infants eoil ' I .l"}:* ""'^ '"•'l-rcdt I of ni , , ''T'"'^''^ "eeessarN^ to r.vW ,
.tiini tin. pn-vinei., a,,!;:i ' Si^'j ^"^'f \ I-": i' ;:::s:'«f-^ ""i"'^ -i-ic Mn r Tilf
[..j;.^ the order. -'!- ^. ^^ly^t Tl^Z!^^^^^^^^
.All infant out of the iiii.i^.i: i- I 'he idaintiir „,.,",'." '" ,"'"'
for rdief will he r-W, '''■''''' l'>'t'tioniiiy 'a .so ieit, r . , '''? ''''''.^■' ' ... ,
S»'"" ■'''''■'''■^''''^■'■=^^^^
Tlk■^'ellel■al rule is, that it. .,.u r When. fl. i . ' "'""'''•*" 'hy. .VJ")
l^rlnnnanee a,.unst lu , r , 7".'^ ^"'- «l"^'-'i(ie Let r / , T '''■""^"'' '" '' ••.■den,,,.,-,,,, , ,.
,k. decree should |,, • t| i' "^ '';'"'--< •'' Vendors, u '.,.': ''T'^' l""Mon,uvd ' '*"' '"'■''
'••*'•"<'">• 47..^^"'"""-^'- <'' '"• '/ehlri;::^,,:!;:-';';;; .cai .n.;;;;:!.;;;:;;;;:;-'
Tliii .same rnlu ;i.s t,, +|„, . , „ ''e in.nl,. fi,,, ,1 ''rl''"'.'U ion to reviv '11
"--'''■'■''-'''^^^^^^^ ''v'-- ^;: z^i
'"■''• ' t ''y. Clwnil,: 'l'' iM.,!.'''''"'''^^' '■■ J'om,.
U^l^mM l,v the ...ourt guardi , ' -f "'''^•'*'
teael.mlaMtsin.sMit.st',;.™/' '^
Misapjiliealdeas in n,ort..a.ie C w l"-'r'"''""""-'e
tliei.iirelia.se money |,as ii,?f f, '' \ '"" "''i'''''
dl'lireet the pay „ ! ' t ' ''''"■ *'"' ^■"'"•^
iMiiit. //,. ' ^ "* *'"-■«"■■'>•< I "ur.s costs
iil.die.
'■VIIK-
,,., . ■— ■•■.live.
. "'ii'ic infants Imv,. |,„ ,
'"".■stor had „„t set 1 '^''T'' "■'"■'•'' tl'cir
Uliere executors have •uu.e.d 1 • .- iSl"',;;!:,'"^" '''■'■^'•''t-i K' K.u,l'^'r"'VV
« interest need n \ S"''' '"''"/^ '" ^1'" 1 " euh i ", ^'"''' ''^''^'"-'^ a n . ll' ,""^^"''"
allm,lee.ts ,f they do '^7 ) '""' "'" ""t ''u i L' ' '■ ^'^ '^.'"■'•^' the deeeas. , J- . , V''' /'r''*^
iS'r^s- ,^';:^.,":;ii '..i--cd , L,,^]:^ J., the pnrpoi, ift :; :" .
«*ii..^-ntiiouthrief:-"vf"-" -'y -jcni/i^.^;;::;^';:;, -,:;;;';;.• -- ^'^Z:'z::7';
ll..c»i,rt v,ill direet the costs of ., ,„,„. ,• f^^;!^' ,"'.'^ I'-^ties to tl c'—' h"''^'^ "^ " """'t-
■■(■ii roterenei. U..1 1 .,.,, i ,,''■'"-• costs of I .»••',>_. v..,/,.
|'«^';'!l"«ed {he p ,' . J th """I '"■''*-■'•• *''" '"'""I t e c 'M"' ';'. *'"-■ ''''-■'mts .^ . l:-;'' '<^
|''"lif ease of small esf.f . '""stc()n.seiitt,.fl, ■ '"-''"-'heia y iiit,.,.H«,f . j
1731
INFANT.
1>uiii^ Hurvt'il with notico nf thu Hiiit aftur hiH
I'liiiiiii^' cif it^'c. A iiiiitiiiii til Met nHiilc Hiit'li |it'(i-
cTi'diiiL'M iiM Ini'^'iiliir anil vniil whm rufiiscil with
ciiHtH, liiit tho ili'I'i'iiiliiiit wuM ullowt^l tiitaki^ iin
iinh'i' (jiviiiK lii'ii ii'iivi' tii fiilNify iiiiy nf tiir
itciiiH ill thi' I'liHtH t'lM'i! luiil lU'iiiiints allnwtHl
liy thi' iiiiiHtiT, ri'MiTviiig the coHtu of rrfcrciici'.
I.iiirrii.iiii V. Itiiil.li ij, •_• Ciiy. Clmiiili. 477.
Mowiit.
The iiiCiiit heirs nf an intrHt.itc wim wric riNi-
ih'iit ill thiH |ii'i>\ iiii'i', iihtainril tilt' usual ailniin-
iMtiatioii (uihr a^'ain.if tlu' ailiiiini«tratri\, their
niiithtr, aliil in (iriii'ti'ilin;,' thi'i'i'iiiiilcr in the
inastti's iiliiic, it a)i|M:irf(l tliat the inti'Htato
wan, at llii tiniu nf his ilcatii, |lllSHl'^4^4('ll nf ciin-
siclcialili! ival "Mil |,tiK(iiial I'Mtatc in Ontario, ami
alHo of Mivtiii o:iiinly hiiiil warrants forlandMiii
Manilolia, »liii'li hail lucn iliily asNi^ncil to liini
hy till' ivtiiiiints tlirrcof from tin' j,'ovi'nimi'nt
of till' I'oniinion, wliii'h weri; hoM nnilcr tlir ilu-
I'l'i't^ on furthi'r iliifitionw. On a miccial caxo
licin^' .Hiilimittcil for the opinion of tlu'ciuirt:
Mi'lil, that tiiin court, niiih'r thu tircnnislaiu'i'H,
hail powci' to sill tliL'sc warrants, anil couM
orilcrllic pal tits inti'ristiil in tin' ustiiti' to join
in a I'liiivcyaiKo tliinof ; or tliii conrt might, in
its ilisi'i-otion. >,'rant tiii' nsnal onlcr vi'sting the
saini' in tlii' purcliasi'r : the priiii'iph' ln'ing that
if a |urson si'lccts a trilmiial in wiiii'h to aiic for
thu I'nfoivi'Uii'nt of his rights, lie cannot after-
wards say that the jiidgnicnt of that trilmnal is
not liimliiigon him : and the general ride heing
also clear that infants, like adults, are hound liy
proceedings in a suit in \\ hicli they are plaintill's :
and tliat, to any iirocecdings that might he taken
ill the courts ot Maiiito)>a, the decree and pro-
ceedings in this court would he an answer, and
hind the parties and istop them from disturhing
any title acijuired nuder the sale. A vesting
order ojier/itus on eipiitalde as wi'll as legal
estates. I!r ItuhtrtMiii, lin'ii limni v. /I'liln rfvm,
•JL'Ciiy. 44!t.
Where an ahsent defendant is an infant tlie
court has like poweis as to granting an order for
service liy iiuhlieation as in ease of an adult ;
hut senilile, tiie notice puhlished should not
«tate that in default of answer the hill will
be t;iken ]iio eonfesso. The conrt will also, in
the exercise of the disc^retion given to it liy 118
A'ict. c. 17, s. ll', call upon such defendant hy
the same older to shew cause why a solicitor of
the court should not he ;ipiiointed his guardian
Jill litem. /A(//V y. i)'(.'iii,,iur, 1 (.'hv. Chamh.
.•W3.--.Mowut.
Where a pnichaser died after jiaying tlui^e-
fourths of the purchase money, leaving aniu'aui'
heir, who was entitleil to specific perfonpaiije nf
the contract ; and the vendor at the inaunoii of
the adniinistratri,\ convt^yed the property, v ;di:i
had greatly increased in value, to a third jn rs.,!!,
and it afterwards jiassed into the hands of persons
withmit notice :— Held, that the heir could sue
the vendor in equity for eiinipensatiii;i. There
was a lajise of fourteen years after the vendor's
conveyance hefore the hill for eonipensation
was tiled, the heir having been a minor all this
time. Held, that the vendor having canned this
delay liy his own arrangement with the infant's
relations, which deprived the infant of their
Xjrotection, the lapse of time was no bar to the
suit. With a view to fixing the annniut of com-
pensation, enijiiiry was directed as to the con-
(litiun (if the estate left by the deceased purchaser,
and wlicther thu plaintilT or tli
the lient^lit of any part of the
on the Mllhsei|Uent s;dc of the pi
v. ./nil II 11 ,11, 14 Chy. (»:«!».
Where the heirs
'•"t'lti' r,',',.ivf,i
""■'■'I'lH' 111,,,,,;
'l"'i<y. /'. ,;,
arc iiiinni.4 tln' c
( liancery lias jiirisdiction on prtitinu ,,( tli.
ecutor and executrix to make an iiii||.r vc.i'",
the estate in the imiiliaser, or ,i, ti||,\' '""
direct. This cnurse will cnahli' ,i titlf' "'
made free from any doulil. /hnmlil.,,
•-' i'liy. I'liamli. Id'. Mi.wat.
Ill order to hind an infant dciVihlnht i„
, iVc. , till' proper mode IS, tu iiliti
til
■"" V. //, IV,,
irder of ri'l'erciice in till' ina'*ti'r t
nil ;uj
'I U,1,Trt,l|||
I
w hi'ther the sulimission to arhitraiinii h |-,,f (i ,
heiielit of the infant. .l//«i/( \. o' \',;// .i d '" '
Chanih. •-'•-'. Sprag','.'. ' '" •'•
Where a married w miiin h.nl si^jii,.,! ^ ,l«,i
which, however, contained im har nl iIhwit tli. I
secretary refused to direct ,i rcfciviice tu iii,'|iii|^|
whether siie intended theichy t i ],m licf ,1^,,.^
I though there Mere infant ileVemiiuits win, v^lnl
interested in ha\ ing tiie dower liiiiivij. Siiihl
relief would he pmiielly the siilijict nl u |iil|.|
I Tliiiiii/Miii v. Thiiiiipmii, '-' Chy, Ciiiiinli. 'jn
, Taylor, Sirnhiri/.
The general rule is clear, tliiit an iiil'.int hUi,i.|
till' is, ei|nally with an adult, liniiml liy m-,,,,.,,
ings in a suit institutcil hv liiiii. .I/.-/; „(,;„// ,■ i
/ill/, 10 Chy. •2H;i. '
The father of an infant iilaiiitilf is in tlirlirstl
instance the proper person to net a.s mxt IrMiiJ
Where theiefnre a brother aged •.'•_'. wlm, ;miell
' as the infant, lived with the fatliii hii.l !,.,
appointed, and then' was cniillictiiij,' cviiLiicj
' to thu brother's solvency, an nnlei' was uiailu finj
^ security for costs : Seiiilile, that in siuji a a
the evidence of the father wnidil iio luiiiii.'isilil
even thiuigh prochein ani\'. f /.;•»/((« v. /.''//.((J
a L J. N. S. '2(17. -C. h. Cliaiiih. Uniinr.
An administratrix was sued hy lar liintiifl
for a debt alleged to have liceii iliic liy Irt Inn
band, the intest.ite, and jiidgiiii'iit was ivcuviTfdl
snbsuiiiiently a reference wis niaili'iii ri<ii(vt(i
other moneys come to her liainls tnr the Imuli
of her children, and hy her licpusitiil with ha
brother, and this judgMieiit iuhI the aiiiniiiit 'Im
thereon were, at the arliitratimi, iiii.iiil iiji witj
(piestions as to these trust ninueys, iiiul tb|
award was in respect of all. Thu iniitii':! ;
acted as if these trust ninueys, ami tin,' iliitid
the estate were to be cuiisiiicrcil ami ili.ilt «i(|
together, but the infants were imt njiiVHiitl
before the arbitrators: Held, that tlio iiit;ii
vvere not bound by the award. Sicuril v.i't
■ ilhi, 17 <'hy. .T.'S.
In tliecaseof an infant plaliitili', tlaiHiiiti
not reijuire security for costs, or ivniuvoiiin
friend liecause he is not a (h'Isimi nf siili>I;iil(
A motion to remove a next frii'inl nf an iiiial
on the ground that during the [inmross .if I
suit he had become insolvent, was ifl'iisid
costs. Jte MrVouiiell, H Ciiy. I'iiamh. 42i
'J'aylor, liefine,
See, also, the cases under "I'linniEiN Am
(c) Fraud or MisrijirfniiiUtthm lnj hmntj^
A tenant in tail, who was sniiiioscil to 1
the fee simple, sold the property a few »1
plaii.tiir or tl..M.i,fttu f,v.iv,„i
Uy'%^ '"■"'"''■•^' '■"";/'*
.■ii'M ill-.' iiiiii.ii.^ til,, (.,1,^
nsclictinii on |„.t,it| ,■ til
utnx toinnk.. ,u, M,.,l,,rv„„„';
'"• I""'': '■"*'••■. "!■ 'l,s tli,.y ,J
mr..i. will ..uiil.l,. ,-, titl/tu li
my ilimlit. I)<iiiiil,l,i,„ i. /j, ,,
lt». Miiwivt.
iii.l nil infant 'L.|Vi„luiit, l,y,^,
ini^Hion ti. iifliitiMtiiui Uf„rtL
nut. Allan V. O'.Vm//, •>(•!,,.
ni'd woniiin li.'id xiHn,,] ,i ,i,(,|
nintainoil n<> liunil ,|,nv,.r tli,. I
ltu.lii-.rta.vii'iviin.tn,,i.'|,iTO
nduil tlifi-.'jpy 1 1 li;iili,.|',l„n,.r
i-i' infant ilcfi'iidaiit^ win, ,n.,j
iving lilt! (InWcl- |,;inv,|, SllrilJ
propurly the xiilijirt »i ;,l,i|| [
'idiiijuoli, •_' Chy. {'liHiiili. o|| ;|
/•
llu IH I'loar, that an ini.int jiUJ
itli an aihilt, himwl liy |,r„«
titntiMl l.y him. .1A7;„/,mH ,■
H.
an infant iilaiiitill' is in the tin.
jiiT pci-Mnn t(i art a« iirxt Irinill
a linithiT a;,'cii -Jl', whu, ,ii we
ved with the tathiT .
iiei'i.' wan I'dnllii'tiuf,' cviiifiiifii,
wdvoncy, an <>ri\rv was iniulf foi
< : Scnddi', that in siu'li n oa
tlif fathi'i- wciidd hi' iiduiisMlil
■uliein amy. (!■ niniii \. K'U
r.— (,'. \,. ('hand.. \\\\\\w.
utri.x was siu'd liy her liMtiis
■d to havu hfun (ha; hy IiitIhu
tu, and jiidymcMt wmk rrcdViTi'd
■I'fi'ivnct' w.i.s iiia(h'iii n'«]«vto
inu to her hands fdr tiir ImifS
and hy Irt (h^iuisitoil witli
J jinlgnicnt ami the aminiiitilij
the arliiti'atiiiu, iiii.iuil ii]i win
tliesu trust iiKiiiuys, uinl ti
j-spfc't of all. The [laitit^
triwt nioMtiy.s, and tliu AM
to l)ii fiiiisiiiiiR'd and (li;ilt nil
e infants wvw nnt ivjuv.hii
raturs ; ii(dd, that tlio iiit'a
l>y tilt! aw.'ii'd. .S'kvhv/ v, ','<
5.
m infant [daiidiir, tlK'nuntt
,'ity foi' iMists, or rcnidvoiiH
u i.s not a jiur-sim nf sulistaiX
ovp a iie.Nt frii'ud (if ini iiifaf
hat duriuL,' tlu; [imijri'ss nl I
)Uio insolvent, wm refiistd
oHiiell, 'A ('by. C'liamb. 421
uases iinilei' "I'liociiEiN As
MUreprc^entalion Inj hhvil^
tail, who was .supiiosed tu 1
sold the property ii few '
i:;i;t
rXFANT.
;;;'••••' ^^-in!,lntT;::i;:;;r:^^' «-'•''-.
ition in 1.1 1 . " "iiant, in im ■•....:.•
ay r .
|,.f„r<'th(>piH«inKof thiwict roMi n,,„ ,
„f .,t.tc. t nl. The 1'ur.dniH., t, . t*;.?,' "•"'^'" \ «t l« ..n hn to th .
*'"; ""t"'- of motion V, !'" "'■■ •■"»' n. of
^'uil\on«|,n,.t. '""•'"> ' < iiy. ('han.l.. -j;!;
-v'lM'., and paid ti.; pur . w ^ .i;''?"'"' ""V"""
^TV.W.-fHonofth.. ;*;.n. :,. , • V '^'l''"'''-
»,v .iiixmuH that the h„|,. „||,,,,|,| '''T/' '"", order. //,/,•,.„;.""/;"":„'■'"' '"""'il admini,t,„i"; "
kcdlliplttloM o( the punliane ulll "S^ *" i...
(ahHticT.-ftithM.rof (h,. ,i,,,,,,,. ;'';'''t KiviuK .."'';''•'• the „,„(,„.,■ ,„„, ,■ ., . ,,
;„.„ and improved the p ' m , ^ J" " 1""* "''HVouded and .^h.I ' V T''' ''"' '"'••'"k
...oof the de..et in ,,' titir:' I'V'' I': - ui: i: : 'Ti''-^ •.;;lh"" ,;;.:::;-'■:' -'••
iSrHjnve. Th^im;:;;;;::;^;:;,^;":,;;'*''--^
iKMiunnnd unproved the invniis..r , I""*
J*,na.ofthe ,hdeet in hi! , ' i","' ''■"'""
l,W,.fthevemh.r: -Jl.dd M '""' """'' ""
hM\ tla.|.roperty in e,,nit\- .o i ;:;Vr ':"''"'.-
hli. I!, S/nm-r, .'U'hy. ('hanii,^' -., * "^'; "'•^"" "
I • •"•'. .Mowdt.
I \ iiiirrnd u.Kuau. » i,il,, .-et ,m,.i
""';■- was .lire, vd to ' ' ;'l'l"""hnent, thi.
„ •"7'*'."'/' : xerv.ee o^ , ' ^^'"^ 1''"""
in'iHedwith, ///,,,,,,., / ;'" '"""••■ li.iuu ,|i«
^''NKouKhnet.''^-^'''''''- '''^VM'h.unlti
U,M-.^,WHo,,, '4;^-''''c.ent service. '^. a suit for the, „,,.,.o.w ' ' """•
P" "f jurat in aifidavitM of ' '
witKui iif lidiids f,v,.„ , ^-^W'tioii ami! " J>,.... ,
*« t'"nrt ef ' 1 ' ^f."''"'''""! ami auretiel ' i u, " " '^l't'w"'<l.
'■ I . .'' 's 'rrewilar to .,;, ._ ^' '
" Hniardiau a,I lite , mZ ' ',""""" *" ' I"?J'"l'''''al to the , a,, o"^''^'' "'''''''' ^''^'••"•ly
'A™ 'f "f proper a"e "" '.'f «".'h' ^erve.l I '"« "^ the infants fi^T"" '"'•'' """''1 ^'^i"-
I f '
1735
INFANT.
i;:jf;
Court aiipoiiitcd ?iim guardian ; but this court,
on aiPiieal, being satisHud tliat it was f(ir tlio real
intei'L'Mt of tiiu child that thu undo shouM liu
guanlian, icvi'IsikI thu order l)oh)\v. Jii re Irwin,
fill iiij'init, l(i rhy. 4(!1.
The fatliur <if infiint.« died intestate, and his
widow <ilit:iined h'tters of nilniinistratinn, who
Ly hev will a]iii(iinteii her si.ster, a niai'i'ied wo-
man, S(de j;uardi:in of her two infant ihuighterM.
After iM'v de;itli tile iiatcrnal gramlfatlier ef the
infants ajiplied to the judge of the Surrngato
('ourt to lie a])]Hiinted their guardian, who, in
opjiosition ti) (il)jeetions made liy the sister, did
a|ili(iint him their guardian ; -Held, on apiieal,
(I) That ulthiiugli this ('(Uirt lia.-i jurisdietiou ti>
ii])i)oint guardians to infants notwithstanding
the enaetnicnt of the Surrogate Court CJ'J \'iet.
c. !i;t) it will not do so on an appeal like this.
(1*) That the faet of the person named as guardian
in the will of the deceased mother of the children
being a married woman was itself surtieieut to
prevent the court appointing her. It is not the
practice of the couit to give \\eight to the objec-
tion that a person sought to be ;\ppointeil guar-
dian to an infant is the next of kin to whom the
Luuls if the infant would descend. He Stannard,
1 t'hy. C'hand). lo, referred to an<l ajiproved of.
Jiv .Vdjiiciii, .Vrfjii'ui V. MrMill,i,i, -iSt'liy. 191.
The .'ourt will apjioiut the testamentary guar-
dian a gr.ardian ad litem to infant def^'udants,
without re.|uiiiug all the infants to be produced
in coui't, ^\ hen it appears that the interest of the
guardian is not o[iposeil to that of the infants.
White V. C II mini 11.1, '1 t'hy. 487.
The court will not, even at the ronucst of the
infant defendants, in an amicable suit, .a])point
the ]ilaintiti"s solicitor tjieir guardian ,id litem.
Jniiiisx. Ji'd/rr/.ivii, 1 Chy. Chainb. HIT. -Vau-
Koughnet.
AVhcn a father and his infant children are eo-
<lefeu(lii.nts, if it ap]icar that the interest of the
father coulliets Mitli tliat of the children, the
cou"t ^^■ill not ap]ioint his solicitor guardian ad
litem to the infants. . I //,•/'//.>• v. liluiii, 1 Chy.
(Jhand). •24il. -.'>praggc.
On nu)tion to appoint a guardiiui, the master
sluudd not appoint the jilaintili's nominee, but
should select one of the praetiti(Miers in tiie
county town, the one who seems best titted for
the duty, and apjiointhim in all eases in which he
is not eoncerne<l for any of the parties, if no
luimination is m.idi^ on the part of the infants,
and if no special reason exists for naming some
»)ther solicitor. Chmeiit-s v. Arwilil, .S Chy.
Cluunb. 7"). — Chy.
A suit was brought for ndemiition of mort-
gaged property, and the mortgagee having died,
Iiis widow and infant heirs were the defendants.
l'[ion an njiplication for the appointment of a
guardian ad litem to the infant defendants, a
solicitor, nominated by the nuitbor, was ap-
pointed guardian, it being considered that there
could be no contliet of interest between the
mother ami her children. Ilitrkiiin v. Unrlij, (i
P. 1{. 'J(K). -Chy. Chamb. — I'roudfoot, on appeal
•from Holuiestud, Jie/'iiri'.
3. Remoml and Xew Afijwinlment.
A suit had been instituted by a creditor for
the iulministratiou of the estate of a party de-
ceased, and the agent of the i>laintiir's Sdlicit,,
was appointed guardian ud litem tcitjie iuf™
defendants. After a sale of the laii(k iiiKie.,. ti,.
j decree, at which the plaiutitl', Iiy Icavo df tli^
{ cmirt, had bid otf a portion of the !..;i,l, ^ ,
I tion wr.s made to change the name of the puf
chaser. The court refused tlie ■■Mipli'':Ui"ii L,|
directed that a new guardian shoid I l)i'aii]iiiint,i
who, unless the parties coiiscnti'd tlnTi,.;,, ,„j
to take measures to set the )iniccciliiinj;Jji,|l
F/i'tc/ier v. liii.tinirlli, "> Chy. 4."i.S.
Where the guardian for infant ik-femLints
'being notified, did not appear .'it tlio lit-arin ■'
' anil their interests, which were iicit inllv a^^.fl
tained, were not reiirescutcd, the i'nurt'Mii..il
J a decree in their absence, a]ipo|iitcil aiic.tlicr
guai'ilian, and directed the cause tn Iva-ii,
brought (ui. Sur'Kirii v. Siniliurii, II Cliv. j'':i
\Vhere a guardian ail litem dies, ,i iit\i ..ajj
! ni.ay be appointed ■ ithout notice. /Aia,., .•
j /[nr/ier, 1 Chy, Chandi. "Jl^. — .Sprjiggf.
Where a gaiardian ad litem of infant ilflViiiLua
leaves the province, another will li'a|iiKiiiit..i
the ex parte apjilication of the plaintill'. ir,/,/,j
V. Teiii /lief nil, 1 Chy. Chauib. olio. SiiiMi;;;e.
4. (Jt/ler ('ll.:e.^.
The pos.session of a nmtlier will not lio i.<k\\
ered tortious as against the licii', bciiii; li^r ninj
child, but will rather be treated as tliu |in...,
of a guardian. Dae d. .)/,,(//,■ v. Emj,.'! liQl
8. 488.
The court will exercise a supervision nvg
solicitors a|)pointeil guardians ad litt'iii, aiiiicd
peet at their hands a proper atti'iitiiMi 1m ta
interests of the infants. JJiiiiom v. y/'w., jriifl
C'hand). 443. — Tii;/loi; .Secretary.
The •J'i Viet. c. !).S, does not exclmlo tlitjnri
diction of this court, in resiiect tn t'lu a|i]i.iiij
ment of guardians. /''■ Sluiiii'ti-il, \ Cliv.Ckiaif
ll."). — Ksten.
A solicitor upon the jilaiiititl "s aii]ilicatioiiha|
ing been aiipointed guardian ad littiii tn ;ii:'a|
defendant.s, and being unable tn iilitainliisoi
from the plaiutitl' or from the iiu'aiits' L-state,|
waa ordered that they be paid iiutnf tlio siiitol
fee fund. MrKm/ v. //((//c c, !l L. .1. X.S. ij
Chy. Chamb.- Spragge, on ajiucal fmiii lini
sted, li'e/eree.
The next friend of infants lilfil a liill.ij;an
tlie mother of the infants- their yiianliaii i
pointed by the Surrogate Cmirt— aiuliurhJ
band, alleging ceitain .aetsof niisciiiiiliict, wM
were not established in eviileiice ; ami t!ii .
counts taken under the ilecivo rcsiiltnl
shewing a balance of about S-2 in tlic liaiiJsj
defendants. The court being of npiiiii'ii I
the suit had been institiiteil recklessly aaJ «Tj
out ju'iiper in(|uiry, m-dereil the next irimoi
the plaintifl'to pay the costs nt tliu ik'tolS
as between party and paity. llnichiuMi v. .'
qeiit, 17 Chy. «. See ,!/'■. l'/»//v "' v. Liifhm
la Chy. 193, p. 1729.
In a suit by a vendee of laml linuiglit ag4
the representatives of the vemlor fur sF
performance of the agreeiiunt, lie was lit'l'ij
entitled to his costs. Smne of tin.' ik'limli
beiuK infants, the jilaintitl' applieil fur thel
poiiitmeut of a guardian ail litem, ami »ii«l
.m'v
1735
t (if the \)laiutilV'9 scAicitur
lian ail liUm tu tin.' inimit
I sale of tlio l:iuilsimiWvtlit
10 plaiiitltV, Uy luiivi; ut" the
portiDii III' tlu' l.iiils, a iih.
lange tho uaiiiL' nf tile imt-
rofuHoil tUc iiiivli':;itiMii, m\
;»iaviUau :<lioiill lji'i\ini"inui
irtios (.'onsi'iiti'il tluivji, wis j
to sut, tin; (irnei.'ciliiigsasvle,
/(, .") niy, 4.-.S.
nlian fof intant ilutoiuliii;-,
IK it api'i'ar at tlit; liiMvin.-, I
s, \\\\\c\\ wmv nut fully iiHi-r-
c'lirosuiiteil, thocimrt rifiw.ll
■ ivliaeiu'u, iipvi'iiitii'l miiitlnrj
;-oi.'tc(l the caus^.' tn h a-.iiil
,;,(„■,) V. Siiiihiini, 11 Cliy, li'.l.|
iian a«l litfin ilios, ;>. iiuw ..ne|
I \:itliout untici.-. IIiii-i»f
'liauib. "in.-Si.raggu.
lati ail litem i>t' iiitaiitdftcii.lmu
'o aniitlu'i- will li'MiniHiut".'
icatiou .if tlii; \ilaiiitil!. W'^
'hy. (,'haiul). :>t'0.- SinMg-o.
4. (;(/((■)•('('."■■!.
1 of a niotlRT will i\"t 111' iMii-i'J
'■,,<;ii\ist the luMf. liein;jkvuirf
■vtliL'i-l)etivatrilastlioii">a>^
i)„v .1. -1^'"/' ^'^ •'''"'".■'• "''^
dU uxcreisy a siiiKTvisimi
iitoil .'uariliaiisaiUiti-'in, ;iiiao<
INFANT.
1738
Uan.ls a limlier attoiitum t. tl
inl'auts. Din^nin v. i,".<.-, -M!
'/'„,,/,),•, Secretary.
<);^ does nut exeluik'tln.' ill
court; i.. resiiivt tiitk;nr';
Itiis. U'Sionmu-'K Uhytliar
,ontlioi.laintitVs:.liVli^f"'«j
iti'.l .'uaviliaii ail litom t" :ii.^
ll beui" utialiletii.il't:milns -
ilVor from the iMuU.ts LSt;>UJ
tthcy.H.,ai,limtii.tl.^.t/
^pragge,
on apiieal fi-"i" '
The court, following ! alloweil, on an application by her father for her
'e'lieral rule, orile'roil tiie ]ilaintifl' to pay the | custoily, on allegations that slio was illtreateil
^ (if the i;uarilian, anil refuseil to give the by her annt, to eluet whether she wouM remain
onieilv tiierefor against the estate 1 with her .Mint, or go to liur father. /// cc Kiniif,
101
, jiilKiiukil aceorilingly
tnei
Jftktlni'liir.' .)/"'"/('■.'/ V. J'nro../, 20 ('hy. 418. ."> 1'. li. 184.— ('. L. niainb. — Hagarty,
WlwrtMin a rehearing the ileeree was atlirnie;l, Soluble, that if the ehilil hail reeeiitly lef*: or
Ittlie court was of o])iiuoii that the guanlian been taken away from her father, she won' ■ be
f the infant ilefeiiilants, who rehearil, was jus- ' onlereil to return to him without reference to
ln>l in raising the question for the ileterinina- her own choice, at all events up to the age of
llinif the full' 'imrt, they ilirccteil his costs to sixteen. Jh.
Upon an a])plication by the innther, umlir ('.
S. IT. (I. c. 74, s. 8, for the euntmly of her infant
ilaiighter, four years of age, the husbaiul and
i-iniiliiut of the fund after satisfaction of the
liutiff's claim. Aicn/ v. MMkII. 21 Chy. 510.
I jihiul
Letters of ailministratiou having been granted
It the Willi iw of an intestate, she, without any wife having separated : -Held, that the statute
; iiiiiintiiient as such, acted as guardian I ilocs not take away tlie comnion Law rij;ht of x
Utiieir 'iulant children, and received the rents father to the custody of his child, but only makes
lliiiorits of tlie real estate, all of which she \ the recognition of this paternal right coiulitional
Inlv Kcouiitcd for. The master in taking the : upiui the performaiico of the marital duty, ami
luimits alliiweit her a compensation on the re- | subjects it, in some degree, also to the interest
lit ,111(1 aiiiilication of such rents and prolits, ; of the child. If, therefore, uiiou an application
Lwlia.sthc personal estate, amounting in all of this kind, it ajipear that the husband and
Ito^lS,') <»n further directions the court, re- i wife are living apart, the court will emiuire into
lanliu'' the case as an exceptional one, refused I the cause of their separation, in order to ascer-
|P. '^i - :ti ,1, .,11. „...., ,..,. /)„„,( V. Z'cc/.s, 1 tain (1) whether the husband has forfeited, by
I breach of his marital duties, this jiriiiia facie right
to the possession of his child. (2) and whether
V) interfere with such allowance. JJ'
23 Chy. 207.
SteA« ll. M'inanix'v. Ahxtiwhr 1 Q- 1^- 120, ^ the wife, by deserting; the husbaud without rea-
p.i;r.; /)'"''l. Alk-h,.-'<m\. .VrL>'<>'',H(l B._344, sonablo excuse, has reliiiijuishe.l her claim to the
|. 1:2.1 ; Offilm V. Mi-lionj };\^\ ■ "-"i V- benelit and protection of the statute, whch wa.s
i;i,i; A'iN-vi/y V. .Aewc-o////«', 17C..1.99, p. I'-'J- intended to protect wives from the tyr.annv <>f
hid of infants tileil a lull n^»«
the infants- tlanr guar .»
Surrogate (/'"rt '^"l' K
ieitaiuactsotnnsciuiKt'^
Lhedineviilcncc-.auil
Tunder the ik^^oe
lee of about >^22 iut,ieh.i"4M
fc court hciu, I.. .;^-''
on i-tituteil r^Ui..b^; j
Ity and paitv. " ,,,n,„J
'see MrAvlr'"-y. '■"t""'^
1720.
ivvendeeofhu,inWJ»J^
k,, of the vonji ;f
Tthe agrecincut, u^ . J
J costs, some "*/"•' ,,,^
Ithe i.laiiditV ainiheil t'"; *i
|llie 1"" Kfciii. ail" iil'Sl
I guardian au littui, 1
IV. ffSTODV OF IXKANTS.
Where a wi;e had left her husband and gone
DKsiilcwith her father, taking with her her
jfaiit ehilil of about seven years old, and the
fcihaiiiliilitaiiieil writs of habeas corpus to his
father to bring up her body, and to his
liieti liiiug uji the chihl, the court refused, on
llie return of the father and daughter to the
nective writs tliat the husband had ill-treated
iirieaiiil chilli, to make any order that they
tell he ilolivored to him, but inforined the
[iiethat she was at liberty to go wherever she
lleasiil, anil to take the child with her. Reifuui
t.&ij/i'r, llciiiiiii V. SiKinl-'i, 2 Q. B. 370. See
Icjittnv. Siiiiili (-/ ((/., 2 L. J. 185. — C. L. Chamb.
VPiohiusiin.
I Where it jippeai-ed doubtful whether a minor
i miller or over sixteen, and she had been
ii'il liy license with her own consent, the
urt rtfuaeil to restore her to the custody of
leaiiplieaiit, with whom she had been liviigii*
their husbands who ill-use them, fn )U' Lr'nih,
5 P. K. 402.— ('. li. Chamb.— (Iwynne.
The court will, upon the jietinon of the guar-
dian duly ajipointeil by tl.e Court of Probate or
Surrogate, interfere summarily , ;ind order the
person of the infant to be delivered to such guar-
dian, when there is danger of the infant being
removed out of the jurisdiction, although no suit
is pending respecting the infant's estate. Ra
aWrh; 3 Chy. 270.
A married woman living apart fioiii her hus-
band, petitioned under ('. S. V. C. e. 74, s. 8,
for the custody of her children under the age of
12. A deed of separation was also Hied exeeuteil
between them in 1852, which gave her the solo
control of her children, then or thereafter to be
born. An ex parte order was made upon the
ground stated in the petition, verilicd by atti-
davits. f'lr the delivery of the children to the
petitioiHr, which order upon a subseipient ap])li-
■T.tio.. 'll.' judge refused to rescind. Nuinerou.s
•.till'' ll v.ti'o tiled on both sides, the substance
f which appears in the reiiort. A \.'rit of attach-
*littei eiilil tor some tune previous to her , ,,^,.„^ -^^ eontempt in not obeving the ori,;ima
image, hiu w-l.o was neither her po-ent - ■ , ,.,^^,. ^..^^ ,,y ,,,.,,J,. ,,,• ^^^^ j,^,, ;, i/^„^.,^ ^,.,,,J^ ^^ie
Sonihle, that the Liighsh ila- ^^e , ^,. ^^..^ „f q„;,^,,,.^ j,^.,,^.,, . .^;,,j ^f,^, ,j„,i,„i,i „„,.y,i
|ct, ill lien. II. c. .S3, is not in force here. Ji"-
kt\: li,ll, l■^^l K 287.
lQu:m\ as to the proper form of application ti
» emit, as against the mother, by the father,
ntlii'imstoily of Ilia child. Ifi'ijiii'i v. 'ilu-i-iji'
|(J.B. 1117.
IIii« onler of this court commanding the wife
Idelivtrtlio child to the husband, is sutKciently
kplitil with hy her placing the child in charge
pe hiishanil. If the child returi. of lier own
T to the mother, anil is not afterwards forcibly
^neil, the court will not further interfere.
' ". 403.
lAiirUgeilthirteen yoars ami ten months, who
piTOl with her auut from her infancy, was
a; liiist it for irrcgul;irit.y. It was objt ■ .at
M 'lile in contempt by not having surrendereil
hiiuself under it, he could not be heant ; but —
.Held, that ho migut nevertheless defend himself
by objections to the j»roees8 if irregular; -Held,
!Nlorrison, .!., diss. 1. That an appeal would lie to
the court from the judge's order. The jases in,
and the p';incipi a upon wh'^h, .1.. ;';>j)e tl is or is
notaUowed, reviewei'i by^Vi]soll. .1. ; '.. That ad-
mitting the right to niaki an ex par -.i <■ ''ii / in case
of necessity, •■ •) suflic'ent ;;round w.ia shewn for
it here; 3. 'I'hat the facl. aai' .lot oc >ii pro))erly
stated in tli;' iirst p.riilicuion, t.'.e real reason for
the applicant le,^'- . ig hei hu '/oan i^ 'a house and the
arrangement then loadi: oetwe u them having
beenwithheld; 4. T>;t. t'li^sub'.^ i(uentheariiigot
til f ii''',4 ■ '
IS k Kj' • ■' ,
1739
INFANT.
KW
both sides ui)oii the inerita, Jul not prechitle him through the fault of the husl)aiiil, was tip
from takiiif^tJidvautiige of these objections against flence of tlie wife ; hohling tliat tlictnuft, T'
the oiiginal order, wliieli was therefore set a8i<le. in its disci'etion, in the interest df th^ rn'
"-''""tiler in
Per A. Wilson,.)., that ujiou the whole case direet the enstody to be given to tl
enough was not shewn to warrant an order for de- cases where the cause of lier liviii.
^iriving tlie fatlier of tiie custody of the children ; i her own statement, justiliablo ; aiK
and the deed of 1 8.")iJ could not l)e given effect to not prejiared to say that he ilisl;t..|
mn k
as regarded children l)orn by a
e given elit
cipiiabitatii
)n re- statement. /').
regar(
newed after it and continued ever since, in ] A father devised to trustees for th.. 1
rei.lytotheatlidavits tded by the wife m shew- his daughter, an only child, real est, t.
ing cau.se to the suinniuns to rescind the tirst attaining -Jl years o"r marryiii.^ aii,l' i,,mi ,""
order, the husband desire.l to hie affidavits in j,^.,.,,,,! l,e directe<l that she slmuLl ,,, "?
"-•iirtt (,i I
had; that a court of ei[uity coiiM affiiiii
relief ; and that the estate devised ti> tlie.li.i I
ter, unless the conditions were I'diiiiilitilii ihi
would be forfeited. A wife liml (j!)taiin>,lfri|
An or.ler was made for (he delivery of infant trusteesof his will to iilace his daiiL'htiiii'i'..',";L
children by the father to the mother, (hi an resi'eetable faniily other thaii tlritol tlit,i,i;;',|
ajiiilication to commit thi^ father for ccmteinpt '""tl'^^'''- and in case the ilaujilitcr laikl tn \
in not obuving this order, itaii]pcare(l that in liis I'l.V witli these conditions, lie dcvisoil t! .ta's,
al)sence fronr home tiic children ha.l been re- *" <'t'i»-'>' parties. (Jii a bill tiled t(i „l,t;ii„tU
moved from his house, and taken to the I'nited eonstruction of the will, tlie court w.i.s „i „,,j„i„|
States by his son, .iged liftecii. They denied that altliougli the provisions seenie.lliar,,li j,,,
collusion", the son saying that he acted without eruel, the father had tl powei- in liisi,,,,!,,,',
his fatlier's knowledge or consent; but the father his^ property to elog ii villi the Odiiiliti,,.'^
took no stejis to bring the ehildren back, and did '
not oiler to do so if time were given him. To the
demand iikkIc for the children, the father re]ilici
that tliev were not in his custody ; — Held, that
he was not excused from obeying" the order, and the court an order giving to her tlij
was in coiitcmiit. U.^uixi v. A//t». ."> P. R. 453. I'w "'fjiut daughter, until she I
— C. L. Chamb.— Morria.n. 'ig^ "* P-' years :HeM, that t!.
The Court of Chancery has ii,.t heretofore in- ' '"''■"V'"" f'^^'"^^'", . "^ *'"!• "m""^ "W" "^
terfered. and Courts of Common Law will not, '"/"^T «";V" m '" -'- "'""^-
, 1 • Jj. /• w TT /. -( Oil f 4. Mc< It n ,, '21 thy. .).) .
(subject to ( . N. I . I/, c. i4, s. >S,| interlere to ■• • ' , •'
de])rivi^ the father of his exclusive eommon law T'>'^' parents of the cliiM weiv !areij.'iieii M
right to the custoily of the children, except in lived i'ltart, ami had brought oro.ss aitiniii fj
eases where it is essential to their welfare and divor- e in the rnited States courts, tli>; liii-l
well-beiiii.', either ]ihysicallv, intcllectnalh-, or coin;,lainiiigof adultery, and the wile ..fiTmlt
morally, that they .sli<add so'interfere. ft i"s not '' '» clidd was placed by the lather iiiou.<t..ivj
•sutlicieiit for the" mother, claiming chihlrcn as •' 1 ersoii in Canada. The mothei' aii|.y
against their father, to allege that he holds what l>a»^ the chdd delivered ujt to lier"iitlioi.TMi
she calls dangerous and fanatical religicms views tfiat, by .lie law of the State (rf Midiian.sH
(in this case those of the " .Swedenborgians.")
Nor will a child, even though within the year of
niu'ture, Ijc delivered iiji to the mother under that
act, sec. S, unless she establishes such a ease as
would justify her in leaving her husband's liouic.
/(, rr 'r,irs,'n-l/, t! P. K. 1.M0. -C. L. Chanib. -
<i Wynne.
Th(^ father of the iulaut cliildrcu (under PJ
years of age) was a Protestant, and tlu^ mother i"''^] "'
a Iioniiiii Catholic. She left him, t.ikiiig the ■' -i i
ciiildrcn, alleging cruelty on liis part, and they
both made statements coiniilaiuiiig of each
otlii-r's conduct. The husband at'tei'warcls took
the chililicn from her, placeil them in the care of
a f'lesbytiriaii minister, (the respondent,) and
left the country, it was said, for a temporary
purpose. (Ml an apjilication by the mother for,
the custody of the children : Meld, that she
could not, under the circiiiiistaiices, suceeeil
ag.iinst the father of the chiidien ; and therefori^
was entitled, when living apart iVmii lur lid
band, to tlc^ custody of the eliiM until it, -li.d
arris-e at the age of 1 2 years, snhjeet, li.*tv^
to t.'ie right of the court to interleiv witL :
reiiio-> ■ it f.,i cause assigned. .Vn ex ]iartO'
had been made in A|iiil, bST.'), in tlii' nil
divorce suit in licr favour, direetiiii; tln'Mtl^
to give 111) the child to her. In .Inly, IS"4. 1
wife liad given a formal doeiinient to lur h^j
■enouncing all claim ui tlio eiistmly.
Ilelil, that the parents lieiii;^ lnm.i
and the domicile of the ehiM not having'.
the circumstances, been ehaiimil. the law ■
State ot Michigan must ,i;overn ; hiit tiiatlj
order in favour of the wiie lieing ex parti',
the foreign judgment not being ediieiusivv,
N'ict. c. '24,) it was competent to((iiisiilcr|
" cause assignetl'' by the lather ; airl suit (
held (especially in \ icw that the iliv.ivo
would be tried in a few weeks' time. aiifl
settle the merits of the ease.) that tliiMimli
— ,,,. , 'til li .-tcuiiL till: iiieiiL.T »'i LIU- I .1.-", . I lit. It 111'
could not L'et an order against t he resiioiidcnt, ■ ' i . -i.. ■ . ,,. .\ .„.t,\..
,. i 1^ 1 ' 1,1 i. c ii f i.1 /' I. haviii'' voliintarilv eiveii ii i tlie eustmlj
his custody being tliatot the lather. /;/ ri' /I'o.v.s, i 'i i * n. e fi'. . i. i, „i • „ t ,<„
.. I. 1. »o- /IT /•! 1 t w't ; cliild to the tatlier, sue slioiilo n^t. iiii'
(> P. 1!. •JSo.— I'. L. ( haiiii). A. Wilson. 4. c < i -V i i- ,. 1 f 1, ,
I present facts, have it re-deliveivd tn lui.
The court has an absolute right in its discretion i Kiiiiiii/, (i P. U.'24.") -C. L Chiuiil).- .\ ^^il
to give the custody of a child under twelve to the | (-,„ ^ i,;!] |,^. .^ ^.jfy f,,,. .,hiii(mv and the nid
mother, lie Duns, 3 Chy. Chanib. 277.— Mowat. „f children who are under twe'lve ,,m .fi
The court exercised this right where the only I the court has jurisilictiou togi'.,nttliel|ittiri'
tjvideuce that the jiareuts were living apart without a petition. Mi(iiiv\ .l/ioico, 15(.hy.|
lUO
1-^1
lit of the hiisha;
le; liol.lingthattl,t.c,mrt,,,i„ ■
... m the inter...t of tl„ ,, ^ •
dyt.. begnx.itotl,«n,.,i, i
cause of liev hviii;,' iiiinrti
eiit, justiliahlo ; :w?\ th' j,,,,"' ''"
;o say that lie .li.l,.!!^^^!;!;
sedto trustees f„r tliH,,„i.rtt
lars or marryiiiL;. .-iiiil i„,f;ui
:te,ithatsjs„.,„,,,;.:;s
upuiulerthe wivnniis„,„,i7!
ot the death .,(■ ills in„tkT ttn
I lu hkeniai,ii,.Trosi,lo,vi'tii'
he event of tlie .luiith „f i„, ■"
:illtol,keei„s,l„„,ht,:;!
llyotllerthaiith:it.iltlifii,|J J
ease tlie ihuiuhtcr t';,i|^..| t„
eouditious, he di.'visL'd t' ta'*
s On a bill tiled t.M,l,hi,ii
the will, tile court was. if „,,„,
he i.rovisiouH .seeiiif,! liiir>lia,||
!• had tl power in ilis|„„
> elog ii -vith the o<,ii,liti,?i3
)urt of eciuity (.■ouM atr„r,l
; the estate devised tntliud
eouditious wore I'uiiijili,,!,!,!
ted. A wife had (il'taimdir,,]
ler giving to lu^r tli..> .;
hter, until she 1
:— ilehl, that th ■ , „
<if tilt! infant a\nii..iitiji;:
iu'is of the infant, ji,
'hy. .").-) .
f theeliild weivfiiroigiioR,
1 had liroujiht oross'actin!:, t(J
^nited .States courts, tk-liihik
.dultery. and the witi.' .ifcni,,.
laeed liy the father in ciist(i.h-j
anada. The iiiotlier applit,!!
lelivered ii]i t.> hfrciiitlii-'ruii
w <.f the State nf Midii;,iii.
lien living apart fi-mii lur y
itody of the ehilil until it slm^
i of 1'2 years, Milijeet, li.wj
the court to interfere witL ;
ise assigned. .Viiex ]iai'ti'n
; in A]iril, Is;.'), in the n
her favour, direetiiii,' tlnMa
liild to her. In .hily, ls;4,
a formal doeunieiit tnlitr
,' all ehiini oi the eustoilyui
hat the parents hein^ I'um;
L> of the child iidt liaviiij;. li
es, licen eliaiiued. the la« oi
;an nuist govern; hut that
of the wife lieiiii,' ex |iarte,
gnieiit not lieing eeneiiisivf,
was eoinpeteiit t'Minisiiltr
1'' hy the father ; aii:l.*"it
in view that the iliveivo
in a few weeks' tiiiio. aii4
s of the case.) that tlii'iml
ily given ii|i the eii.^nlyiif
ther, she shmilii nut. iiii'h
ivo it re-<lelivered tn iiil'.
•24o ~C. I,. Chaniii. A. W
wife for alimony ami tiku'ii
are under twelve yuars
•isdietion togi',,nttlw latt.r
ill. Mi(iii-u\ ,l/((«/'", iJChv,
. Ti:e
y. Infant's Est.vte.
I. Jfomfenanc' „n,l A,h-u„cn,„-nt.
(a) Otmrulli/,
INFANT.
1742
^'s V;,-t.
[See r. .'>■'. r. ('. c. /,.', ,ser,^_ 4U-.-,r ; ,-
'■• J''- .V. y.j
f Biaiiiteiianee and edue
,Mmenanee and education of int„,r I . ''"''' writing eitlier l,v fl. '"'''" >"' ^'x press,.,] i,
slili 111 ;i proper ease tlie c.inrt w II '''fe'''*^'^'". -idvaiieed A'/ ^ ^''^^ I">rent or the vhTu
..ell a. to the advaiieei Jt ;T ""^^y **• . , "'^ ^''''"""'' '■'<'' < i' "
.UUm^jh V. AMon,,h, JO c'h\ 4- n "" ""■■'"*«• ' I *^^t'^t"r l>e,,uoatli,.,l ; } . .
n. widow and adn Hi tli^:;;^- ^ . ^ i^^l^ S^ Kl!^ ^ ^- -tJl^Ji^ t^ellt^tl^
It'*''
(tstlte. _ .
«,! spent a -''<^nl.vaU;:i,Z\^"';:!Z '^'''•^'!>'' , ...,o
<k' .'iLso inaintaiiu;,! the int...>f ), .'"l""^'"ig it. (Iun„,r |,,„. ,„;„ "., "■ csrate of
It.'
linfii
;:,*";;;: rrsT;;:;,' "!■*"" i-'v . "''sr " ^■"''- '»■■•■ ™- *'""' "
:«.it»..,i J;,..,-;."-"';,, :';"■■ * ';■ '"»n t.„ , ■''"".ti.i.i »,„i ...aintiC, ' ,, ,1 ""'V'l. '■"'■ «.=
--;;:■£' b;x^ -■ fs^ r: ?-- '--S ..i?,:? ■•. ■»■■■■ ^.i-
Til. ee.,rt will „„t allow to a rolativ I ''• ■^''"■'"■' V- /V,/,-/' V • 1 '■"'"' '■^'I'-'-t tile
pl''i«!''(hyhiniinoastn,-,i„f ^^^'"""'ev .» ,, , , "">">' h. v. L'.T,.
k".,t..fthenr ,1 1 ' ! .'''^''■■''.''•''' ''' tho ii^ -'^ «ten.h,H ■. , .
k "iit.if the proceeds of Ja
f'f';>''l'ii'titioniuiderC see ...,.'""7. "
I "l.i.'fa teshit,... I , , . o ^ t.
■ ..,,1 111-
'' fheintaut.soj.l I
iioiiey \ . .
lie ill'- .,-'\«t^'I'- father's claim t
t «„i.i ; '^'''l.lliee or a inin,., ^
jeetcil on the
'■'""id of iiis 1 i ' . V'*'''' ^*'''* re-
'"" ""^W'liduet. /■■/« A/.-,.
V OVA '" p"""i'lof
«'-ate.tator,,e,,..uhedpartof,,.,,,,,, .1^,^^ the ditreti,. „p „„ , , , ,
lo,- .■„!.■ . •'?''*%'■"''''• ''"-fetini; the ' .' '*^''.'^ '"r pa.st maintcoa ',. f ''', " ''^'t'ler
■ y-:' o^. "•:;;r:;;!.r:':^-'i ^aut , ii- ■?'-'> -tate„.,ti:.^::;,;,:,t' fh-''i-
''^-^npportandcdu^:
'o'r'i'^'^^':;"^ti,ne
Itlii
s
.VfSMte t, , ,,,
IttMt.iloM'.iil
i« until i; vc.'-
Ulit trust. ", mi, hf . ;.4. i. , ■""' 1" "-■' '""■■< time
""■'■■ . ■ a. .uHf ''•■''" "^■^■'•t'lc. same
^^^ .' t.l me.Meofthedeatl f
"•ueenta,.,; ''',, -ll'^'-''^" tlie survivor
««t»rs liad i, ,1,-., ,.;,'• V'"^ the trustee.s
l''«l«ltotl,e,s,,pp,;,V:;;,',''',''I''''>'l'''rt of,
■^■?rr:m,rr^tS--rr-^
•"■""■^'■est on thci ish ;l f ■:",'I'I'""'' •• 'I'Kl
■'""''-' •■"'•"Vier appro* "^'i,'"'*'" *'"^
*'"p.tof -. :I3" „ f;'' the appli.
icii'v ", 'I'-il to .supply the :
"'tst;in.;i
JlCt'
\
III
,;';-i..^u.^ie:.ino;i:;rK:^
--V t.llllKT, I.y l,i<, ,,.,11 •'• "'•
;l"-l t le use „(■ l,i, I,,,,,,"', >• -''f ■■111 .-uinuity,
t.'ite , uring l,er wi,i,„,| ''''•'"' "tlior real et'-
'"."' ^■'•'iiiie,! to 1,0 ,..,i 1 , • '"' "'="■■•'^•'1 .igaiu
"'tcstat,,,.schii,r.^ f,',^',^■'■'''^'"!'"''^^•''^'^e
, ^ ' '"';! -ther/vise. The t .r/ r]'"' f" ^'"■"' ■'<
itlie claim. //,. "- """t retu.se,! to alh.w
i^^^'^inS::S:^'tz'''^''''''^ ■.-
'."""'t-iiauce, wK: tl 1, r""^"'* ^'^■" ^'■■' f-'t , .
«■''-'•- it is satisfStSthe'V'^' •''"•'''' -•
tf.ianee ari.scs inci,lcnVallVii .'''!'''" '"' "'•■""-
wasproiK.rlvi„,titut5 ^ ,,"r;"*;/''''ltl'atit
t mtiou „t ,,„ ,,,t.^t -' dc to the ailniini.,.
: Jl'".i«^what ought , ',;."'"'■ "■^'^t ii„„Ie
,.,.■■'" "" e..jtate, and i
I ' . ."'""« what ouL'ht to Ii.. I ""'"cct iii,„(o
o '"' Ileal ot tJie
:J
MS
;i)-.,rT!iation rcMjuired l)y the statute and orders
reforrtd to can l)c evolved in taking tlie accounts
in such suit. But wliero such a suit was insti-
tuted l)y a party asking fur maintenance out of
the cor|ius of the estate, the court, as a clicck upon
such suits, refused to make any direction as to
maintenance. OvudJ'illoii: v. A'diinif, 20 L'hy. 425.
INFANT.
might l)e charged upon the lan.l m ,
nu
l)et7)re partition!— Held, that tliccx'oni'Lirir''"''
been a miiuir, his estate was nut lialilft,, ■, ^^'"^
therefor. .V(/.s/t v. J/,'A'((//, l.") Chy. uU7, "'"""
An une(iual partition ol)taiiRd in ,i c
Court against a minor and feme cdver't tli"!""!'
the contrivance of the co-tenant, t)iu un, T'!^
,., 1 n... ■ "'""" W'ili-3
of the guardian ad litem, and the ini.sii,],oi,Hi
of the referee (appointed nnd.-r thu I, th gj'"
the I'artition Act) as to the extent i,i l,j^ i
and power was held not himliii.'. Ti,,. ,„;„'"''
33 Vict. c. "21, s. 3, O., only authorizes the ap-
plication of tlie interest on insurance moneys
jipportioned to infants under 2!) Vict. c. 17, for
the maintenance of the infants. The j)rincipal
can, under these acts, only he applied for ad- H^i'i""'fc'"f ''t't-' lili-'<l a I'iH for a ucwp.utitidii ■,, i
vanccment, hut under the general jurisdiction of \ iijlecree was made accordingly. M,,-ntt v. .sy,',,),
the C(nirt may be applied for maintenance. Rf \ ^'^ t!by. 321.
Bazdiu, 12 L. J. 174.— Chy. Chamb.— Proudfoot,
See In re JItintev, 14 Chy. 680, p. 1745.
2. Ptirl'ititm, Li'nue, (iixl Sali' of.
(a) Practice ox AppHcaHuii for.
By an order in an infancy application under
12 Vict. c. 72, (C. !^. U. C.' c. 12), it was refer-
red to the master to take an account of the
value of the crop.^ grown on the premises during
a given year, and " what had liecome tliereof,
and liow mucli hat '";eu converted by one J. (>.
to his own use beyu *l;ird thereof ; and it
was ordered that ;, on service of the
order and report si!'' ' T>ay into court the
amount fouml due Ijy ti • ''ter : — Held, that
the order being tinal so far as J. (). was con-
cerned, tlie report made in pursuance thereof
did not re(]uire confirmation. J\'e YiKjtjie, 1 Chy.
Chamb. KiS. — Spragge.
It is the practice now, where the estate of in-
fanta is of small value, in order to save the j
expense of a sale by auction, to direct the ad-
vertisementt(> be inserted ill a newspaper, asking :''""*'" "'■'■'-''"'' ''" ^\'^^ permitted td iciiiuvi
,. to be maile I ''""'""fe'''?"'' '-"■'-''^*^"""* r"t ''.''■I'ii" "iitlie
Where lands are sold for the pni'iMso of ^.u .^ i
ing a partition, the share of an iiuaiit retaiiisjij
character of realty. Tlionni.fnn \ 1/,(;,V. '•
r. R. lyS.— Chy. Chamb.— l>n,u,lf,M,t. '''
Ejectment : the plaintiff' claiiiRMl titlf tlinnwi,
one (J., who was tlie grantee of V. aii,l hiswif,
and D. an<l his wife, the said \\i\c's i,,iviii„ ),„!,!
the patentees of the crown Ijifiin,. mania.r
Defendant claimed under a lease luaik' l.-p
the father of the patentees, \vliil« tiiev ■ivm
under age and before marriage, as tlioi'r .in,
dian :— Held, tiiat if the patentees' latlicnvaj'
guardian in socage of the daughter uihIlt tlie a.,
of 21 years, (as contended by defendant, uhaj,
guardianship ceaseil upon her attaining tWa-e
of 14, when the lease would Ijc \uu\ /)„,■„,! ^
y^;*/, 13 c. P. 393.
The guardian of an infant, tenant for lif.
without the sanction of the (■(inrt, txeoutM
a lease for years, during tlie existeiiuc i,f whioij
the infant died, and an ai))ilicatiiin iiaviii'/U.
made in the cause for an onler un the tduntu
deliver up possession, he was urilcred to
and on payment into court of tlie anidinit i
tenders aildressed to tiie registrar
for the property. 7»V llan.sill, I Chy. Chamb.
189. — VaiiKouglinet.
All applications under 12 Vict. c. 72, for the
sale of infants' estates must come on before the
same judge, .S'. C , Ih., 205. — Spragge.
On an application under C. S. U. C. e. 12, s.
50, for the sale of infants' estate, the e.xaniina-
tion of the infants liy the master, under consol-
idated order 532, as to their consent, must lie
annexed to the petition. A certificate of the
master stating that the infants have been ex-
amined by him, and that they consent is insuffi-
cient. Hi' A., ford, () 1'. 11. 192.— ('hy. Chamb.—
Holmested, Itej'eree.
(b) Ol/ur Ca^'s. " ';
Where on the hearing of a cause for partition,
it was shewn that the estate could not be divided
M'ithout prejudice, the court, without waiting
for any return to that efl'eet, ordered a sale.
Heuntll V. Bennett, 8 Chy. 44G.
lu a suit for the partition of the real estate of
an intestate, wdio was one of the executors of his
father's will, and had takon possession of the
personal estate, and who dieil a minor, it was
claimed on behalf of infant legatees, who had not
been paid their legacies, that an account shouhl
be taken of the personal estate come to the hands
of such executor, and that their shares thereof
perty, (<loiiig no damage'to tlie ivalty,) liiitthl
court refused to allow him out (if sucii rents
any improvements made by liini uiiim tlieiTej
mises. Toi' .,.4<>i v. Xnl, 10 Cliy. 'i. ' j
Upon, a petition for the saiiction of the cmirl
to a renewal of a lease made liy tliu inlaiitl
ancestor and containing a covcnaiit for miowjl
— Hehl, that none of the ciivunistan(.'us Iwji
alleged under which the court is cnqmHiTidli
the statute to act, the court had nn antlmrityt
make any order. AV- ,J(teki.<, 3 L. .1, N. .S, (ik-
Chy, Chamb. — Taylor, Secntarji.
8enible, the court has antlmritv nnder Impi
rial Act 11 (ieo. IV. and 1 W'il'i. I V. o. ti,),'i
1(), to sanction such a lease, but tlie lease iiiii|
be produced to the court, in order that it ii
judge of the propriety of the terms. Ik
Apiilication for sale under \i \'ict.
the estate of infants -Sale refused under tliv(
cumstauces, the application aiipearing tuheiiKH
for the benefit of the father than of theehiU
Re McDonald, lie Tai/lor, ICliy. !W.
The court will not direct a sale uf the
estate of an infant, merely because the .lueesj
was indebted ; it must lie sliewu that the cstj
will sustain loss, or that the creditors are abi
to enforce payment of their deniamb by $1
lie Buddy, 4 Chy. 144.
The mother applying for the sale of real esl
settled upon infants, was reiiuired to joiuiiil
ed unon tlic laii.l i„ „,. ,.
-He{.l,thattlK:«.cutoK"
V. McKttll, 1.") ( liy. lT
partition <il)taiiu'(l in ,1 (
minor anil fciiiu
'iiiit
minty
ftheoo.teuanur:i!tjf^
III litem, an. 1 tin. ini.si|,,,,i,,„,;„
ililHMntfd iimk.i- thu ITtiisco,
■t) as to the fxtunt ..f hi, ,1;;:
lold not himli
Bd a bill f,
or a in'«-
liitv
I'll-' iiiiiwr(,i,
le acconbngly. .1/. r,-,/^ v. .V/,,,,^'
irosol(lf,„-tlu;imriMsooft.|le,t '
Jie share of an infant retains ,tJ
Ity. lhoiiij,H,,a V. MrCaff.,. ,'-
'. Chamb.— I'nmdfoot. " ' 'j
leplaiiitift'dainiLMltitlftliroiH
1 the grantee of V. and his ,4
vife, the said wives ii.ivin '
if tlie erown Ijifur
led nnder a lease nunk' liv F
lie patentees, wjiik tiwv'KiJe
before marrmge, as tlioir ,^nj.
at if the patentees' lath^nvy
1,'oot thedaugliteruiiilL.rtliea,.,
eontended by ilefenilaiit,i that'
.sell upon her attaiiiiuj,' thca
lease would Lie \-oiil /;■
S)3.
itWl I
marriage, ,
J'lf'Ui V.I
of an infant, tenant for ii|.|
letioirof tile ciurt, txeout^l
during tlie existeiiee v.i wh
and an aiijilieatiiin iiaviiig Ut;iJ
>e for an order un the tdiantti
ssion, he was ordered to
t into eonrt of tiio ain.miit 1
13 was permitted tn i-eniuvetlM
eetioiis put liy liini nutiiepn
damage to tlie realty,) liiitthi
allow liiin out of sueiu'fiits i
ts made by iiini iiimn tliq
y V. Xal, lOCliy.Ti;.
11 for the sanction uf the wui
■A lease made liy tlie iiilauti
taining a eoveuant fiirreiiowal
'lie of the eii'eninstain'uj litijl
lieh the court is enqmu-emll
t, the eonrt had mi anthurityl
AV J,u:k<.<, -A L. .1, .\. ,■<. Oil-
"aylor, Swnlan/.
lurt has antlinritv nndei' Imtij
IV. ami 1 Will. IV. c.tio,'|
leh a lease, liut tlie h'iise
the court, in (ii'der that its
[jriety of the tenus. Ih.
r sale under ll.' \'ict. c. 7i,^
iits — Sale refused under tlit
vpplication appeariiy to be 11
the father tliaimf thecliilJi
f Titi/lor, Why. 'M.
1 not direct a sale of the
lit, merely because the aueei
must 1)0 shewn that the t '
or that the creditm-s are abi
leut of their deinaads by i
. 144.
plying for the sale of real ed
nts, waa reiiuireil to join i '
omvoyaiice for tho pnqwso of surrf..,,! ,„• ., I 7irt
life interest vested in her nn,),.r ![''?"= *''" *" loin tJi„.. • ^^
II directing the sale of i„f„,,i.,.. „ , , I j,„ . "i" "'"•■■"" "ose in,,, 1^ i,„ , , -./•— ^« ■urecD
t t'oven.H,! "/?>"*' ''e^I. estates ' « "';*;le a party. l,nt Z relt h T\' •'"''' «'">"ia
«'""-!-l ; ami sulisemen h Sf '''' ''^''- fe'-'irdia,
-Kvrried, di,,,t„, , , ^^ ; a <H.r such infant ha.
,k-,'.mrt is not govenie.l Iv f L ''o-'*! estates
„f«h:iti.sni.ist for their p^s't «""-^';l-nition j «"">-'.d ; ami sul«o.,u;;;;iv"'V''''' '■-■'• guardian
what k for their iiItiinateTewu •''',! ''■•*' '"'t "'fne.l, .li,,,^^,, -^"tb. after such infant had
nll.rderasaleof a porti m , f ^ f,' f ^}." ^""'•t ' ?'"' ^«--';l'>'sban.l sh, , J 7,'' .''^■'."^ '^^ill .■«. i„f,„V
the rest, for thrie.; ■^•y,'''V'«t'ite !'"'<-■'-■. .'*'»'-'l' w.is , ' f """ '^ "«^v eonveyl
^ '■' ■ "■■- - •''' •"-''- ""^"'t' ;:;";; ^;;:*'''" the masS!:,;,,;^;:;''' '-m that uL
as f the court ha.l .Ii,.ec Ljt ■ ''''' '" ''^''-•^
Y^ eyanee nn.Ier 12 Vic't ,-.""'•■""'='"" "^ "'o
■ "' ''• '• '' -""l that tho
i t'l s.'l>'e
.Vi-Donalif, 1 C'Jiy. t'hamb. 97
-Ksten.
".■ -j.ocen. "-Ill '■'le coiii-M,.,,l i- ' ''^' '"I'l Was in ..flp,,
Ulien pniperty was devised l,y a testator to T"'V'^>''"-'^ »n,t l'" '^i-'-T' "'^ ^^-"^'^ ^S
in i\i.ii)\v tor the maintenin,.,, , , . r"*^ *" I deed wm 1„'„ r '"-"'• <■• 7l? m,! fi J:
Btil the coming of ag " of t "^ '"^ f'""ily v. Ocl^/T, j /'"'f; ,'""' l''''^se,l the es .,f }
m then t., ^^r.lne.tf^ et.s^ :T«^"S^''''''1'I J 7^ ^^^^ ^'''''''^^''^^^^^^ ^"
,ertai., payments .'.t interval h.'^T' '"'''' ' o ^- •^'■'"'"'' ^''-^tates Act. ,1 "
liitlierehihlren, witl.apr,.vil,u■,;",r'^'";i"'•'^^T f'^^''"^
I tWMif another son i„ the eve f>,>"'f'.t"- '■'.'"••"'* ^i''^tui .pPe f usi . ,f "! *''^' lan.ls of
5n,Ara.'e or without issue :-H, ,[ 'f ^, ;, ' >''''« ' ''ft I '"■"" ''" «''"V'i th t V. ■ f V"T '" ""'^•'' a
l,,,,rti,a.lu,,iuris,lieti,,„t,M.,.,lt 's ■, ''"'*''" '"^ ";lant is expo, e dt ,',' ^'^*''•^ P'-'-P'^-'tv
Ip^-iMifsnch jmiperty, the .o„',V "•'' '"•"'^- '""'l'"'^^''' '^•^^^Jiange I„ , / 'L' '"''•■^^'•'ti"" if the
Pvramler ll' Vict.^'c. 70 t ' ' '''''""'» "'':,'''">' .''f'''^''' tl'e same l''^ "■"^"^'. the eo fc
lU estate of infants a-^,i, s~t t , """" "' the ^ l-'-.'^'-^'ons of sec. -yoJoT'i'} "»^ "-"ler the
(„yhst ,rill by which sue estate T'T'"" "^ "'"''■""•-^^■^ 21 Cliy. "so ' ' '^^ ^ " ^'- ^'^ i-'- Iv
1t«,«hinf.iuts; L'. Tliat SI ,-h ,,? ''''« ''^■"■se.l : Th,n.ri„f.;,.l f
tk. real estate of the f,.t\l;?^ N. i; r. , ,,
kiif the act. In /v A ,1/ ',''''," *'"-' '"«••"'- ! "".ler thtef '''"?'"" "f' >'"fauts' estnV 'h
llSi-Spra^e. ' ''^""''' ^ ^ ^'J". Chan.b | wl.ero itt ,::ts:,^tr''^'';l'?'''^' *-" -S
! At^tator by his will devise.l his „. . I Sjtt ^ ."""^•'■'•«*'"' -'f aiM ufc' ''T'"'^'^^ *«
leaity into per.sonaltv tl, ','""■■' t'state from
;;.--'" uaiesbei„|'tj[;;^''f the e-nirt:^
^ t iKu.. any gi-eate^cK tS^, V""vorsio„ shaj,
at'coniidishing the in, , r 1'"' ''^ "we.s.s.ary for
;;-v.rsio,,.= ,,,^J-;--epnrp,.e.,X
llSi-Spragge.
Atestator by his will devis.i.l ],;
Itewife f.ir life, ami after hJr.lVa/r'V"'',^ *"
|« e.,nallv am.mgst his e h ( , . "„ '^' ''■^■'-
IWie/proVi.le.l that le di • '"■ , ^''" ^"^
ItopbeeuMtilthc v.un '.s te 1"!' :'"•"''' "<''
l« the youngest chili/ ij','':;" ^'■"'- """'^ ^
Hf'Tsalenf ajiortion of heS ,''^'''-'" >'«'"'«
.volf a niiirtgagc on the whol".. " i',;) 'f^l *'> ^
nlertnr.salewoMl.l bua.ninsf fl, "'"'''•. ^'at an
lewill, an.l thei-cCore in v!l.; l-'"^-'«'<.ns of
.12, s. '
rbamli.— Hoi
,.u\ t. "^-cessai-y UiY f,,ll.,i , "" eases
^■»ect a c•onversion^,f ' " ; f ^•'■»' l">n"'so.s to
'•ff ity into personalty tl, """'''■' ^'^tate from
''"«"'^'' cases bein^th t h"'^' "f *''« ^■-"
,. „,. ,„., ^"''' "^"aii IS nci'^.o^....
;-"versio„,,;=cj't;; •, -. -
k;»and heii-s-atdawoS^ 'M'^"f t'-c next of
'■'^^'""•''■^- /v.:,.:;,!' f-'t-e.u.eerne,l.
■Hol'nc'ste.l, /,',.,;;,„;,/ • ^'- '-H-^Chy.
ue woiilil ic ■i.*.,;., .f n ""'• mac an I 'pi. , .■■■■-.
..1 therefore n "■.,•" ^''"'''-^"'^^ "f ' ..rderVC'V* T^' '^'^ C .^ T' (• , ,
■-,1 /> c . , ^"'Jatioii,,, ( s TT I ,"-' •' sale of nf.,,,*.^' , , ! • ^- • ' • e. 2, s oO
In a proceeding umler ]■' Vief -, i ■''''.'''' "'''''' "ooe.ss.ary for V)!": '"""''■■•■ '"'*' ^iiat the
*^«.'Wointcd guar, i;n S;;- '-' the "'fant, or that by\ea"on ViV''''""'''"^"^^ "^ t'^e
^'rea erpart of the real es .' i,. , t ' ^'^Y "^ "'''"•'■''^'l *" ^^-'^te or H,' , * '•'' I'-'-'I'^'-tv being
s.irdcred, which was •^,:;,,i- ,*'''" '"^■•"its t'iati,)n fro,„ .any ,,.,,' ''''''l'''''it!.in, or to ,le„re
*'<'tthe csfcit", b,t no nJ •"-■"' "^ the al.so it ap],,,,r,.,i^tl "'''*f'' ''>' '^ '•^'^l'-'. an.l where
,"!« ™ maile.'altl,, ;,/"t ^/'"-'t "^ the ' -ouM ,,V produce 1/^ '"'"--'■^ -'f the a e
Med by the order : the who f '"? '™^^ ' ^T'^^ ^■""'•' '-^^ 'vnted to, f 't ■■'"" •''''' tl^« l-'o^
^'^t-yether with .^o,i'' in?,;l-""'' l"""- I f /'^'^ "^ repair, t n J " '''i^'''"! m .a proper
pi-''r.nti,e support':.; "V"''!'.^''""- ^•^■■^'
■ f 'c appb,.,.tion will n t ' , 'i'-\*'^VI'"'-«I'aser,
: l'''"'t;- to the .suit Ob . t " '^ ' "^''.'f .'"'.V of the
■„ I ^'""li'^'t of a sde .,, V 2. ""^ plaint iFha,! tho
Keitappeared to ],e for H , I''''''''^''"' ^va td le V' '.' V i •'i'^-^* ^'-i^''"! tho
r * ineumlirancers eon r , ' '''■^'" ^'ere ' "•« l>id tlie .s.ile wn« li .-'"^ '"'^'^t Wend hav
***«lewa,sorde.od ;t t *";'• ■■^" "».ne- i ^as m,t <iled r ,?;m"''""' '™- ''''"> certificate
*»"ftlie iuf; t, vi h r'^""^'-' "f the l''^'"tifr toco, i,,;7;;''-''T'- -^ n.ofon \7Z
««'■ tbe mortg i r^",* '•'-"i'"""y the \ "'■■t-^ter's eerti ic' i?''^r' ""t"-it''standi,L J
Pip
1747
INFANT.
M
748
cause if tlio mastur w . i; riglit ii, iiniling the
Bale atiortivu, no nrdur for a n sale was uocus-
sary. (.'/•(iir/onl v. JJoi/il, (i I'. U. '2~S. — Chy.
Chiimb. — llolmeated, Jfi'/crn'.
It is iinportant tliat tlio next friend of an in-
fant sliouM lie a ili-iiitortsted person in iiroc'etMl-
inys taken to sell an estate in wliiuli tlie infant
has an interest. Wliere, tlierefore, the mother,
who ha<l a claim against tlie estate, tiled a liill
as next friend asking for a sale of the property,
the eourt refused to in ike the decree ; hut re-
tained the hill in order that other jiarties to the
cause, if so advised, niiiiht apiily to niikc them-
selves phiintirt's and the infant a defendant.
Bern/ V. limy, i'-' Cliy. •20±
.S. fiim'-iliiicnt of MimiiiK.
Tn cases wliere, if money belonged to an in-
fant residnig in Ui)per ( 'anada, the eourt woidd
invest it fm- his henetit. the eourt will, where
the infant is resident in afiu'eign country, clirect
an investment for his lienetit in the securities of
such country, Saiihoni v. S<tiiliuni, 1 1 Chy. 359.
The guardian ad litem to an infant has uo
authority after the object of the suit has been
accomplished, to act for the infant in investing
any funds for tlie infant. JJix v. Jtuuium, 1
Chy. Chamb. .38. -Blake.
All applicatioi 'o invest moneys of infants
pursuant to ar ■:■ of this court slmuld bo
made by the int.ints, and not by tlie jjersons
wishing to Itorrow. lie IhnU-tj, 1 Chy. Chamb.
190.— VaiiKoiiirhnet.
The court, on n adiiu.i.-itration of an estate,
takes charge of the share going to infants, and
invests the same for tiieir benelit, instead of the
amount Ijeiiig left in the hands of a trustee.
Kiiii/niiiill V. jfillci; lij Chy. 171.
ISince the establishment of a government Do-
minion stock, the investment of infants' money
by the court should, as a general rule, lie in
such stock, rather than, as formerly, in niort-
giiges. Jh.
As a general rule, loans of money in court,
cannot lie made on property on which tliere is |
any prior charge, however small, unless all
parties interested consent. Airln'ir.'< v. Jlrinp-
slr&'t, 1 (-'liy. Chamb. .S47. — Mowat. j
A petition had been presented for sale of an |
infant's estate, fifty acres of land, which pro- '
duced 5^700 and upwards. On an application
that the proceeds might be invested in the pur-
chase of a farm, witli the sanction of the court,
on which it seemed to be intended the father of
the infant — a farm labourer — was to reside with
the infant ; the referee refused to sanction the
purchase. The circumstances under wliicli such ^
sanction would be given considered. He Mawii, i
.3 Chy. (yliamb. 42(i. — Taylor, Jlf/erec.
See Jn re Jliuitei; 14 Chy. 6S0, p. 174,5.
::x(.f
I tile
4. OlJier Cases.
The principle, that when a trustee expends
his money upon the estate, and thereby increases i
its value, the property will not be wrested from j
him without repaying him the expendii^ure by i
which the estate has been substantially improvecl, i
acted upon in the case of an infant cestui im
trust. lierit V. Jiuiiltoii, 7 Chy. .'ii). ' "
Where an execution is issueil agiiinst tlmlanil
of a deceased person in the liand.s ot lij^ |,y
tors, and the heir is an infant, or is imt tm,,,
tent to look afti^r his own interests, nr is i
.aware of the iiroceedings, it is tiie ilutv I'l thn
executors to act in the matter of the .-inlt. ,,
prudent owner would. Jii re Unri.i, I7('||\ J™
Money was recovered by the I'llmini.stmt
.'• person killed by a railw.ay aefiiiont, ^in.
shares allotteil to her children were(It|i.isit,>illi.
her with ner brother, who w.is fiillv (■""ii7.;M,t
wliere the money came from, ami tii \\\\m\\
belonged :— Held, that he was liahle tn inioimt
to the children as their tru.stee. S'-rnol
VuMell.j, 17 (;liy. 3-JS.
VI, :Miscki.i..\nkous C.vsi:.-;
Infancy is not .an inevitable ililliculty withia
the lifteenth section of the Registry .Vet,
to preclude the necessity of an infant ilivisee
registering the will within .six lueiitlis of tlie
death of the devisor, to avoiil a emivuvaiki; In
the heir at law. MeLeud \ . Tri((i.c, 'i i). ,s 4,5,5
See also MiUiileinUe v. Xkliull, Ki y. J{. (nm
The municipality of l>arlingtonpas.seilaliy-],w
enacting, among other things, that ini inii-kajier
shall sell any intoxicating drink to any aiiiiMi-f
tice or minor without the peniiissidti di his le..al|
protector : — Held, beyond the jinisdictinu nftiiej
municipality to impose. In n- liiurbuj ti„ili}J
.]/iiiii-i/iiiliti/ (if the Toirihshiji 1,/ Dnrliuiibw. Ijf
(). IJ. S(i. See also lie Jirudie mnl llie Tmnuj
/iowiiHtnrilk, 12 L. J. 14."). Xot yet leiiortnL '
A widow, to whom dower had been a,s.sjVntil,|
agreeil with the person by wlnnii she w.b' cinf
ployed as housekeeper, to convey tlic sauii; I
him in trust for his son eight or liine years ul
and to whom it appeared she was iiiHeh'attatlied]
ill consideration of a certain sum, fer tlit iiayl
nieiit of which the widow's lamls weiv answerf
able, and were liable to be sold, ami ab
annuity secured to her; the eunsideratiim, liiiir|
ever, not being at all ei|U,d to the value e: tlj
property. The court, in the ahsenee
of any unilue intluenee, o[i|)ressi(iii, [lersiiMMi
or fraud, refused to set aside the ayaTiiia
as against the infant. Gnurli ij v. /cVW'//,
Chy. .TIS.
In August, 18(51, J. B. being indeliteil jniiitl
with W, B, to T. in the sum of t'SS, fiiiHiiio|
judgment had been rccovereil, aiul tu 0111' II.
the sum of tllO, .agreed with it. b.. whii wis
son, and was not then of age, to ennvey tn
100 acres of land in eoiisidei'ati<m ef hisassdj
ing p.iynient of T.'s judgment, ami (if liismaL
a lease for life to .J, B,, or ,1. B.'swife, ut
acres of the laud, being the arable iKirtion the)
of. Iv, B. was then the holder ef adiii'liilll
£'J0, given to him in satisfaetion of wages can
by him as a hired servant with an ehkr brotl^
and in pursuance of the said agieuiueiit tn'
ferred this to T., who received payment tlier(
and also made a note jointly with J, B. amlj
B. for the balance of T.'s claim, which 1
remained unpaid. No couveyaneu Wiis ejec^
by J. B. until June, 18()2, ami no lite le.isei
M.irch, 18(J5, when 11, B. made a lease toj
mother for life, it being made to lier and nflf
148
9
que
10 oase of an infant cestui
iuitl/on, 7 Cliy. .'!!).
ition ia issuiMl a,L!aiiist tliuknds
siiii in tlio lianils of \n^ ^.^^.^.j
!• is an infant, oris iidt (.'(miw!
ur his own intiTosts, ur is nut
oeedings, it is tlie ituty (,t the
n tliu niattur of the sale as a
onlil. Jii re JJiiri.i, ITCliy.iiQJ.
overoil Ly thu ;'.ilniiiii.str.'itrixi>f
)y a railway a.xa.loiit, :iii,l tie
liur cliililron wtTe ili'inisitedliy
)tlier, wiio was lUlly tvi^'nizaiit
f came from, and to \\ii„i,'i jt
, that he was hahlo tuiu'o.unt
as their trustee. ,y,,-,j,-7
328.
ISCEl.LANKOUS ( 'asI:s,
an inevitable ilillii'idty witliji 1
;ion of tlie liej,'istry Act, sua j
necessity of an infant iluviseej
■ill within six iii(iiitli!i ..f tlie'j
isor, to avoid a cuuvfyaiku liyl
McLiijil \, Tniii.v, ,") ii. s. 4,"i,j 1
Uc V. Mc/ioll, l(i (}. Ji. iio!i.
ty of I )arlingtoii jiassfil a liy-lairl
)ther things, tliat ini inii-l<CLiier|
ixicatini,' drink hi any ajiiiMi.!
liout the i)ernns.-iiim (liliisfeiial,
, beyond the jurisilictiou nftlijj
mi)ose. //) /v ISiiirlitiiniuIlk
'hi' Toirihfliij, of Diii-liiiiibm. \%
Iso Ri' Bi-dd'tc mill llie Tiiii-ii I
L. J. 14;{, >.'ot yet rei)ortt;(L
honi ilower had l)eeii assi^.Tieii^
person by whom she was t-ni
weeper, to convey tlie saiut
lis son eight or nine years ol_,
)peared she was nineh attaihecL
of a certain sum, tor the \riji
le widow's lands were aiisweif
iable to be sold, and alsn
;o her; the consideratiuu, h
t all (Mjuid to tlie value «: th
;ourt, in the al)senee nl iiro(
luence, op[)ressiiin, [icrsuasioi
to set aside the ajjreeiiiei
fant. Giiiiiiiij v, RhMdl, '
1, J. 15. being indel)teil jiuiiH
in the sum (jf I'SS, for «iii|
en recovered, and to one li. |
igreed with It. B., who was 1
then of age, to convey to i
ill consideration of hisassdij
's juilguieiit, and of his mikil
J. B., or J. B.'s wife, i't|
being the araiile iiortiou tliel
len the Indder of a due 1 '"
. ill satisfaction of wages ean
. servant witli an elder hrutl^
) of the said agreemeut tn
who receiveil payment tliert
lote jointly with J. B.aiidj
ice of T.'s claim, which r
No conveyance w^is esecnl
lie, 18(j2, anil no life lease i"^
en K. B. made a lease toj
; being made to her aud iioT
INJUNCTION.
J, R, for the jnirpnso of
mditow from taking it in i!'"!',? r'"« •^- «•'«; 'W'her . ; ^'"'^
>niifer of ]S(!I. and sprin.. i/^»r>H''\ f" the I .actio f . 'f l'l'"'"'« "l-r-n t],,, ,. , , .
::: M'ted to the plain{i,ls^ , S'^- '^j '--tnie | im ' taiS"" /' '^ '"■""«''t S 1 ^ U "^ ? 1'^"'"
,ivd udginent, .■ui.I lilcd i I 1 "'"'''^ '•t-'';"v- ' In -i,, •"'^''mt.ago T,f tl, i ' " "^ ''"ft-'iidant
Ltoheth :-HeJd, under fl "'^' ''^'^ 'tute of ; .,t, ''':", '","'"1 "f ^xMcl. an i ,f J'^.^''''''I<'nt hav-
, tl,e eonvoy.uiee t, , J:„m'''-'" '"■stances, tJia ',1^.7^^'' "'^^' '' ""«!' e '""'""t""'. H-' co, rt
! voluutaiy, but that the ^ " 1 T '"^ /'-'"-l ' ."'1!;'^'^?^^- ^^^^^^'^^^J^^ '" -"'-'lor
l:S!;:Si:i'^.-!?-:Ss-:!£i^
(ir;rfo^'!!:-^;'"M^:.:'^e^ii:;:;\.:^:'-^^
«■'-■••« .■e,ui,ite. ^;r^' I"'^''"'niury procJcdi.'^
LVFERIOH CoiritT.S.
See Coi-jir.s. ' .
r^FORMATJOX.
I. Bv Attorn-kv-Okv,..,, _c. .
AM. •S0Mr,T,„i.(i,.:.VK,;;; ^"«K-^EV
If. (.'Rnn.v.iL-.sVe Ciiinivw r '
IV. FoH I.NrBr.sro.N-.sv. Jxnu'.siov
^-} "' the same mn,;!:!::^'!'^^'l'' , "n'f ?'-'"-! '>i lai!;' ;;;,:;:'l:!?''-i<'ing that Se
"t-'i-e ro.juisite. " y/,.
Per A. "Wii,,,,, J _ .,,,
Vift. J V> ! 1^''"'"- t"thesae f ' "''''^^'<"'
"; c, .ij jj JI ,. ^<iic or J (ni,,fo -J?
'-"t.may proceed i tVd ""'r''.''''''^ "ouj t 1"
|th^::-^-5r-''^^^-..fihein.,rmationi.
h^-::^'th^;l?i:•^''■•■•'^^"-::^:l?'l^^^
^" •let havin.r I '
'^""«tru,.tion of I ,t"" l««*!';'l autli
.'^"^■t^nant entered intr;'.. rf''"''3--
».i..,..,-, uii iiio ajipiioation f,(^ f? "•"""" ror '"onici
ptswiU heimnosed in fl,o ' ''^-'''^iidaiit '''I'ls slum 1,1 i" > ■,
p-. d... l::,Xrz:'''n,..r as in;-Hei|:Ti;t':/'i,;:;;:|'/wth t,ies^e:;!,^
Un an inforniaticm tiled bu fl . j y«"eral to enforce tl". I" ''y tlie attcrmn-'
Vk the Mneen f^.r gSl ^^.^ :}«">'"oy.gene. ^^'-I'^V and that d.^')! •"^' '--fi^tio,, ' ^^^^
kl^allowedtof,,.,,!.^-...'? «"""«ylod, costs „.;m , ^!'"«<.., by j,,,.per ^ilt'^atUim^^ii"'^'''' . ^■""«"'»ed
" l''ii'ement.s of' tlT'l\''^l *" ''""'
tlie
•the
'''"''"■-nothe.lSen hnt. f^'"' • {-'"'^t.s will | ,*-"'«'■.. 'y proper alte nHo,!r 'f ''t"^« eonee.
Peproceeilings in an ex fh ■ reii ff i'r'''' ^'■"^ '-■"tit .,,."-; '^"*"*'-'' *'•«
Ife either a^ the ^i^^ t" o'"''""^*'''" 'J^" «^ic iS' ''"'^ ''^ "^ ^ " sait^'^r 'Zt'''
teiey.general, but tbo ,1 / , *'"'''^''""' the ' to t> , ■' ' ^"''l""'atio„ ,vis • n ' 'j"t that
« «|.on to 1 lea in !,,'':*■''"'''"'* cannot le -' T/Jr ""'"■'"'^tion. rli 1' '"^"'•'■■s^ary party
■V 6-..W.U, one tue , eft;,,,],,,-. ' "Je
W upon to plead in v.-.c'tt o ^''■"""'' '^e
M='"-en in vacation, bi t ^s entitl'";';'^ "'^'^ *"
,'"«(" plead and an i.niAw ' ' ^" ^* '•%'"■
Keaninfonnath'.nwastiwr""'^-
N^r, under 12 Geo. J I ' of\ 'T '^/'"""non
M,vs«d by defendant bv wV '"'^''t lands
hJan'hff notobiectin!' ,V '"l''^',' the court,
\mm of the 1. uls t,; ^""'^''^ "''■■ owner of
:-nKadnotb:r',\'^,--,;';'t^
N'b^Muterestof .s eh ow„ ""''^'^' '"'wever
IJiuiitiiriiiatimi fn f <• -^ , ' • ''^b.
ktoth;72rt^t'e*^?i'''-^''''y lottery.
P»"livi,lual, and , ee?l „ '.'V''^,'"^ '^^'^'1 I^y a
Kritor,)roce« ;„ '^- < • ^''. 498.
!f/^ events the wan "f •^PT'^eding;
^^'".on 'leniurrer ite ' T" '^ "«* ^e
«"^an,lp]ea(ie,i. "'^ '^"'^^ 'lefendant had
^plaintiff in this case' fil« J i • •
ft^'-eyearsafte tLilV"''"f"™'**i''n
P f'^olate. forthat the c±. '"^'''•"^'J "^ =
I "^""'tecltooiieyear. If,,
*-" Estate.
"■ Fko.m the Coi-irr or r,r.
^- ^o Stini Lcinl n
(1) PI ' >-«ce,-<rmj,.
^V'"V'/, 17.?^ '^ '" ^^"'^ or In
ih) Before Trial, 1734.
("') ^i/nimt or b, tp;„ , ' ''^^-
P^,.f ■''■I'vitcation for ,(?,„..•/?
; if
u ■ ftrnv. lipiii I
YJW:
th.
1751
INJUNCTION.
m2'
4.
5.
6.
7.
s.
!>.
10.
11.
12.
13.
'J'o Jtix/riilii tl'dnti:
(a) (li'iii'nilhi, 17()4.
(b) Ciilliinj Tunhrr, MM.
C'liiiiiiilftinij or ('oDthiiiiiiij Xtimtncts,
(a) Offi'usii'f Traill'^, 17<i(>.
(li) Uhjliicdiln mill /{(li/inii/-!^ 10(17.
(c) ir,(/r;- h'lj/,!.^, 17(i8.
Jh'iiKifiil (tiiil Salt: of C/uitfi/.i, 1770.
Jx/niKjcniciif ofTnuli' Murks, cLv, 1773.
Jircar/ifs of' ^'oiilrnrf or Corinuii/, 1774.
7V Corjiorctioiii, 177.").
/// Piirfiirrs/ii/) Mitllir.y, 1777.
lUlii'r, II ■I'l'ihl 'I'liiitiit.-i mill. I'l limits III
Cdiiiiiioii, 177S.
0///(';- C'((.v«'.-I, 177!).
/'(■ar/;(V'.
(ii) y)iliii/ ill Ajijilicafioii/or, 1780.
(b) Affiildrifs oil Aji/ilicdtioii, 1781.
(c) Krii tiilinij mill ('oiitiHiiiiiij, 1782.
(d) J)!sso/v!ii<i, I7S2.
(u) Ddiiiiiijis, 17S3.
(f) CVaAx, 1783.
(y) 0//(.-c CVr.s(-.v, 1784.
(li) Aiiii'iiihnctit without Prijiiilirc to
llljiilirtioii — Si-i' AMKNh.MENT IN
Kijrri'v.
Brinvlioj' JiiJiiiHiiiin out! Coiiniiitiiitiil
t/ii-rcjor, 178(!.
lull rlociilvrij liijiiiirlinu, 1780.
] Qurt'i'u, whether, oath' factn stati'd in IIki^sp
the plaiiitid' coulil cliiiii e.xuinptiiiii Iinni toiij'
i ami wliethur jiii iiijunctidii wmild liuve ii,..,'
' graiitud (hiring tlio ]iuii(leiioy of tliis action'
brought expressly to test the rinlit. //,, '
1 Tiie iiliiintirt's ehiiiii to a writ dl iiijiiiiitinnin
, trespass to realty, ean only bo siipi.niteil „,| hi,
shewing a legal right to tiie iin;iiii>(s in (|u,.sti„|,
M-hieh ilefenihvnts are intniigiiii;, iiinl that tlic
reni(;ily by judgment and t'xeiMitiim in tlit suit
would be inailoiiuate. Where defendants nlit.„t,i
a deeree in Chaneery and a vesting; '.nlerilij.
I idaeing the only right wiiieli the i.hiintitf JMim
las the fduudatiou of his a,iiplic:itii,n inr tlie writ
the injunetiou was refu.sed. (.'iiiiiiiii'ilin,,, \- i;A
It It/., 2 L. J.N. S, 4(1.— (•. L. ('imnih.-|irai,^'r,
j The defendant, thongli foiliidden by tlnMiliii,.
' tifl', went on witli the erection of ;i di'.ni wiiiiji
' lie hail connnc'need before thi: I'lnintilf )iiir( h;,.,,,!
I the adjoining land, and when cnniiilt.ti.,! ,t
I baekod the water on to the iilaintill's lain! and
injured a tindier slide wiiieli lie Jiad there. f„r
which the iilaintill' brought an acticni ai
covered ${>0. 'Ihe court granted
to restrain defendant friJin
so as to jien back the water.
34 g. \i. 524.
I. FjtOM Corel's (II.- Common L.vw.
1. r,v
■iilfi/.
An injunction under sec. 28() of the ('. L. P.
Act, IS.'it), will only lie gi'.uited to resti'ain de-
fendant in ail action from the wi'.>iigfiil act or
breach of contract com|il.tiiicd of. or the com-
mittal of any breach of contract or injury of a
like kind arising out of the same contract, or
relating to the same jiro[ierty or right. Wliia'c
the venilor tXcs on a contract for t!io sale of
timber, claiming a forfeiture for default in pay-
ment of the iiurchase money, an iujunctioii will
not be granted to re.-^traiu dcfcnd^uit or his
a.ssigueo from cutting tiiulier. l\'iil<,'i v. Uruii'u.
4 L. .J. (iS.--('. L.Chaiub.— Burns.
I'laintiU' having recovered damageti in an action
for overflowing his land, and the same ovorllow-
ing being continued by defendant, though the
verdict was not moved against : -iield, that the
plaintitl' could not claim an iujunctioii, because
he li.ad not endorsed such claim on the w rit of
summons under ('. L. 1'. Act, kS")(i, ss. 283, 4, T),
in which case only an injunction under sec. 280,
canis.sue. Arhlmnlw Hull, 2 1'. K. 388; ,S'. C.
4 L.J. 282. -(.'. L. ('hamb.^Burus.
I'laiiitiff sued defendants to recover back tolls
illegally charged ; and endorsed on his summons,
"N. B. — Take notice that in default of appear-
ance the phiintiff may, besides pnjcceding to
judgment and execution for damages and costs,
apply for and obtain a writ of injunction :"—
Hehl, notice insuHicieiit, according to the form
in schedule A, to the C. L. P. Act, 185(5, No. 5!).
Ekheij V. Torunlo liowU Coiirpuinj, 23 Q. B. 02.
iiiiil ft.
■■Ill lllJIllHtilrll I
continuing the dam |
McSnl, V. Tiuih,,,
II. FlUlM i'llK ColHT or ClUM i;|.y
1. To Stiiji Liijiil /'rt,n,(liii;ix,
(a) Ekrtioii to /irocml of /.mr i,r in Ay,/;,',,.
A defendant to an action at I:'.w pleailed, Ir
way of eipiitable defence, an a\rceiiK-nt tn :'iv*
time by tlic ]ilaiiitill', and a ■■ cnlict was f/kval
for the plaintitf, subject to a rclci-cncL'. liri'nrej
the arbitrator had (10110 more than make aal
aiipointnicnt to attend before hini, the i!"fehd:uit|
tiled a bill to restri'.iii the lirnccediiigs at Lnv. liij
the s.-uue grounds as had been ]ilea(le(l hy lii.'a|
in the action. The court dismissed the Idlhvitli
ccMts. Poiiii-rot/ V. UoKifi tl, 1 rhv. 1(1.').
kSumble, that it is a coiitemiit of a cniii't o9
comiaoii law to procec'd in ehaneery altera ft!ir|
ence under an order of that coui't,"wliiih '.irdtn
the parties to perform the award. Ih.
A defendant at law tiled a bill tn ri.<rau(
proccediiig:^ alleging as grounds fur rulie!lact(
which, if properly jileaded, would have aifnrdej
a good defence at law. The emiit, witli.n
en'juiring as to the merits of the ea.se, cli<ui;se(
the bill, ^forri'i<)lt v. Mi l.niii, 7 t'hy. W,.
An injunction tii st-iy iirnceodiiigs eii aii -x^
cution .at law was refiis.'d, where it was >!.,•
that the facts upon which the rijit tnti;-
junction wa;? founded haillieeii raised ;i.s a delei)
to tl'.e action l.>y W'ly of C(iuit:il)lt' plea. A'!,»/(i
v. (.'oii'i'roii, IM'hy. 2!t7.
By the .stafute 23 \'ict. c. -I.'), the o.iiii-ts]
coniiuon law hive pow'( r to iin]Hi.-io siieli i
upon the party suing out a writ of leid-viiij
will fully indeiiiiiify the defciiilant in the
from all damages he may .sustain hy iv;i.-''aj
the action. Under these cireiiiiistaurt-
court will not interfere by injiuu'tidii tonstBI
the plaintitf suing out such writ frem tald
possession of, and receiving the iiwtits ikrivs
from, the goods replevied ; unless in cisc "01
it could be shewn that compb'te seeurityoiiiMI
be obtained at law. Bktclarw Bum.', 9Chy.'
U5S
, oil til' facts stati'd in tliu i.ii,si.
i claiii L'xuiiiptiiin tnnn tfiH,'.
iiijuiictidii wiiiilcl luivu lietil
tlio iiuiiileiioy of tliis notion
to tost tliu fight. //,, '
;laim to a writ of iiijiinftifiuin
can only lie siijijinrtuil imjii,
gilt to tlu! [)|-ciiii>esiiiinii.sti(iii
i arc iiifringiiii,', iunl that tlie
cut and cxci'titinn in the suit
ito. Where ilctViiilaiitw sliewd
iccry anil a vcstiiii; '.idtrdij.
•iglit wliich tiic ijlaiiitilf attnii
of his appliciitioM hu' the writ,
s rcfu.se<l. ( 'iniiiiiiiiliaui v. I'lu.i;
i. -tti. — C L. ('iiiiiiih.— Draptr.
thouyli fovliiiliU'ii liy thi!iJ;iin-
li the I'lvctioii of a (li;iii whid
il licforo thi' \>laiiitilf inivihasnl
mil, anil whuii cninjih^U'd it
on to the iil.iiiititi 's huiilaiiil
sliiU; whicli hr iiail tlifip, fur
tiiV liroiiglit ail action mill rt-
ic court j^raiitcil an iiijuiiiti.rn I
ilaiit from coiitimiing thfilaui I
the water. McXnliy. Tuiikr,
'IIK CorUT OV ('llANn:i;V.
Illl/ /,'-(/('/ /'/■■)(■( m//')/;/,<.
J)l'OCC((l (it Ldll' (//• '(11 E'jihUj,
) an action at h.w I'lciiiloil
defence, an a'^reenicnt tn ^ive
itilt', anil a ■. enliot was taktaj
Mubjoct to a n feiTiice. licturM
i!ul • done more than make ail
ttend liefiii'e liiiii, tile ihjtV'i;il,iiih
;riiiii the prneeediiiirs r.t law, i
s as li:vil lieeii ]i!cailt'ii hyliii
ho court ilisiiiissoil the hiihvitli
V. Bosir,:tl, 7 (.'iiy. H!3.
;t is a coiitinijit of a onirt
rocced in cliaiieeryaftoranfip
der of that court, wliiuh diil
rl'onu the award. /';.
at law tiled a liill h> I'l.^raiJ
ging as >.'i'ouiul.s fur it'li'j; .Motj
y iileaded, wonld iiavo .lif'T'le^
at law. 'I'liu court, witli^
he merits of the case, ilisiiiissei
mil V. McLcHii, 7 t-'by. Vu.
to st^y ]irncec(liii;,'H mi am
as refused, wlieiv it Mas shifl
i[ion ^vliich tlie ri Jit tn tk;.
ided hadheeii raiseilasaiiitrn
W'lvof e(juital)le plea, ik'm
liy."-207.
^e 2:5 Vict. c. 4.', the OMiirts]
:■ power to iinpiise siU'life
suing out a writ of ri'iilcviii J
iiify the defenilaut in tlit
es lie may sii.staiii 1\V i'>-':''"5
luler these circiniistaiw-s '
terfero Ijy iiijimetion to iw
ing out such writ frem M
a°eceiviiig the pretits derivj
replevied ; unless in L'ase wB
ithateompl'teseciiritycijuia
A party to an action at io„
ngainstajuilynieiitan 'evi^^. ,7''""'' ''^'''^
a .tate of fact,s which if o ■ ^ , ^■'''''""' '■'1'""
constituted a g 1 defence fl' """''' '''"''^
e,,t.ah]ish not .mlv th it t]^' .' "'" "'''"'"• '""«*
ihatat the tinio .-It- .,.'., ;f:r .^'^, ^'f^ f;tot.s, luit
• ' this diselosu,.,, 1 ;,^' ',; ! "•'^■"l.fconl.i,
].w..i,nonu.tof;.,r\:;,:f -\;'^j-
ahliMiiJigeiice, liave ascertiin..,! "'*'', '^'iison- \
long time has elapsed sVn ■ h """• ^^ ''<•" 'i
facts lie is I-nndV;„,.ike o,,t"r:-;'-''''''"''''l ■^"'^1'
an injnuction as he woiiM to o'l.f. ■ ''"' "'! ''■'"''' f'"'
unravel the tn.nsaetio, s u i . '"" " -''^^■''cr t,
Iiettnt J^n-isdicti,m li... I,,. A ,.' V'''''""' "^ ^•'""
C,mm„!il'"n, V. AV'c/»o,n,/; JoChv^v's"' "^""'"^
The maker of a note wis m,,' i J
instead of raising tlie ih.f ,, „ ^ t''^''^'"", ami
oi...»iileratio„, save a U " 't ? '*'V' V^ '""^^ "f
I'l^'i-'tiif i" the action wal'"; J' ^''rV^'t '''-
an.1 i,.sued e.vecution /i ■ , j * "^ ^"" "'""""nt.
•l^">t i,. the action J«;fe'S,S'h, Jl'-l'^f^'n:
I'i'oaTiIingsatlaw.adc'mn, e- f '" ^" '■^'^t'-m.
--'»""-'• ^''''■^v;z:;^:,/'iv;;:);;^';;;;'i..ity
INJUNCTION.
1754^
III, 22
'"Sl'iS'o;''/:,:;£/\'r';:'i''''''-- ''■>' ^^
I ;; _;;^'i-f ami nrotl.iti,: i-, y,:,/'^ '"" •"'■-"-
- ^■jectnient was l.ro,,.,- ,V ^ '''/,"''",■'''' '''" •■'*^ti"a of
' *-""-lcfenee to Siim" f H^ '''^'""'■"'t 'i-"^-
i;'ft^'>'.^^-l.ioh he eon 1, ; ' /''^' I"-^''.'"--<<^^ only,
;'-c..min,ng I'ortion, a | ^ , '"'r^'"- "" ^'"^
, 'M'pI.ed to this eon rt ,,'■'":"' t'"^'''^^"l.on
■'*',"^'' .-lets .■ the ..Mirt ,; '""""•^"■" i" >vsti liu
"'"'^'o stated, ref, "e 1 I ^' "'/"" '''" l-nneiplj
V. T,ny,„r, - CI "-'Vi;'''" ••^i'I'''-'tion. /VcicA
'V sale of the cniMf,. r
^^"-teilunderap S.:f:::^'"""*''""-",eeu
^''^i-'J and ..emlol,,., ..;1 • ":'.l^ '" '^ •■second luort-
A rule nisi in a eoni.+i. i ..
tie.!, hay,,,,, heen'li.s.h: ,,! f . '^ '''Y, ^''''\ «^'tis-
aii intcloeutory injnnctiim in'T." '''' "" '""' ^"
m,oi-e a party had a clear H^l.f •
Mtani eipiities, to s^t them , ' T ' '" ''''«"'''l *"
talJo defence to nn)lti!nVl' ^^' "''>' "*' ^''l'"-
tliiscimrt, and hy mistal-,. ,,l ''"'/"" ,*" '^'oine to
"^ a legal defence on ui/'i'.T'r' *''^'"' ''' law j
failed :-ireld, l■e^•e,:, , " ''"''' '"^ "^^^ssarily '
V. r., that this dilnt!,'-.,;'^'r^' "•■ Mowat I
tte ,s,ame grounds in i ' ! ,; "^- 'f ' t-'/el.ef o,!
Aii insurance con'ii'on- ,it i
■'-.polieydeclai"!'";^, tl",';"^''^'';'''^*''
'«.• cancelled, on the -rou. ,'l , f ''y''''*-''' "P to
rq're.sont,itio.,s whin the ^'^'''''I'-'nt mi,.
I'l'e facts set for li \ t , ,' " -rV'" ''^•["^ ^•"''-■^ted.
f'"'l defence to tlij S, T'l'"'^''^ '*^'"'
r""fe'!.t,mthispolic^vVlut Vl,''"'^' "^'' '"-"^•»
*;"''"'^' i'»t .me tiia t, .■";"■ ^^''■''^''-•'•'-'
»"«1 that in this court 1 m "V','^*","'« "'' f'"-'t.
t'ivenintheevent t the luiTl •' '"" ''^'"^f I"
"" "'i""c'tion ,vas gr iitJd t 'H''°.'■■•''^'''^^'''''''•
■*"'m«gpn,ceedingrsat J /to ■ ".''"''■"^'' '•''•
';'.tliua,,,o„nt covered l.ytLenoIi''^'''^ \'':'>'''*'-'''t
^^liei'eahiUia tiled to ,,„f
pil'-'iscs, the ti.iier'tr'^'r ''"''''•*-
""""tJnstiee Act. will i, V-.- '^ Aniinistra- ;
''™'«1.V given, git://;'"";" *" tJ'- ••^■lief
Py'.'eat, en wiiitd Vd , "V"'' "'""-'''^te
''-*''^'i ami will also order , '^^'- '"•'^3' at once
t"ti,uii,„rtga.ree , , • lV^«'-^ss'»'i to he given '
'i™ ''ent. '{^d'Whtre" "« "'" ^""' ^^' "-"!'-
'"''«• «» the cvemmt a, 'r"°''^-"''' ^"« «'"%'
"1"'%% ti;ecm,rtUus.^l t T 'i^ ''■'^^' "' *''-
■H ,"' like manner, where Z "'!>'"";t "f law.
'"^ "f purchase nm. lev ^;£?. *" '■'^^■"^"«'- '' «<»•-
irst mortgagee the ,.,>„.; 'V'^''' ,P''^yi»ent of the I
'*" .^t t1,.' in t oe X^f i '» r-^train suS
' "•^^^'vornthat the seoo f ^'"'^'''Sor, although
oitiino,, 1^ , .""" second moi-f.r,.,,,, i.,, i , *
'■«;'■ ; and iicidi,,.. a suit i„ i"i " ■-'''■'""" '"ort-
«''^''' «.-Ue. the ti,^ 1 , ';^"^%''Vtosetasi,le
tl'o purchasers, proec' |. f''^r'i "''"' ''"' '""-' "^
"';"%^g"r upon the . , . ■'''"■ ■■'«'"''«t tho
l37"l-ntiienmrt;;;'2a":''''^''r'-'«''^'
I . '^^''gce, 111 Ins answ,^!' *-,, ti . "^ '"sfc
f'-^ '^'l "I'on the vali litl of ;, ''" V'-'""' '""- i»-
1 I'.'i'l taken plaee w ' ,'" , '■'^'•■- '•''•'"i, «'|.at
"H hetwccii the nio, , '-^^"'fe' '"^''^'l i" eqnitv
' '-'Hginal camJtS^^;;^;:'';' "''''^''o-S aSi
' : t!'« action at l.nv was n.^t • ' ,'''l" '"'' ''^■■'"•'"fe',
'■'^]- "f the nioitg..,,'. , ;." ' "•'"" /"•"-'•■-■'lii'g to a
I i <-l'y- C'hanib. (i4.-Kstei,! 'V" /•(■-//.,„/,/,
"l't^';"^l'f lin!!i\j!|£. ''J ;^ '>.m%xgee having
l-'^.'-^l'-'lehini froinsuii , ,r;r''''"'r ''"^^ ""t
«t'l .t would seem 1,:^ I '''■ """>'«e money.
^■"tu-cly helpless, L 'm m n '"V:^»'''«'"' i« ^.at
";;;'%'«o,a,fdif'tii",t,^>^,,,'^'-^''wthe
afterwards sili i ,■ ,' ^ / " ""''' ''-"train him {,,nn
, V. /A...S., iM(.;r3.;'',i/,l'^''"'''%':A'deht. J/,„,J"
!caS^n?S.Sn:S4£r-^''t'.ci.- agent
, 'P:;'i.conditio„«, a.mm.;t ' ..v':*'^" y'^'^"' '^^
'P:;"coiiditio„s, amon ,;t ' ,'" '"" y'"'''^''"' la.uls
'"." '1"'K a saw:mi"-;V''. ''■'•, "f *''^' ^'•-'■"leo
«'th the knowlcd.^e of th ;'"'""' l»'"^'«.'''led,
!;i-r"'i-''..-tnn.;lS;/acS;i^;;-:li.::
di'i
'ir^^^'von, that the seco,?.'"'"''«^''Sor. altl
,, ''^t of whi.j, „.^^;"; ; < ; ' across a river, the
tlie company « land. S,. ' ■ ff l",''^'^ ^ract of
I '-•i'-veyed the lands c. t^^T '"'' ^''" ^■'""l«"y
f'tnate 0,1 h„tii sides ir-''' '"'• ''^^'^^^ We
^l^cilof the river •iml *^'''' "^-cr, reserving the
i '«"'- the title' tie";; ./''/'■^^- ^^.^ on J^ther
f'.'^vn. Afterwards he ''""^' *'"-'" i» the
I tamed a patent the 1. ;'';;"'■?• ''«^''"K "b-
^".-'l^^'l at law ag, iilt't) "* *''" ••'^■^•■. Pro-
■' """ f"r the damage L V l^"""'' n'^"''"« "ic
I '-ccovered a verdict f cSo '"?''.",""'*"fe'' '""I
!^v-«re also brought f, r t h ^ ' '""' ."tl'^r actions
court decreed a , eri. . • ■''"'"-' '"i'l'T. The
(tl'« actions, IVa iuS '""""^^tion regain .^
'['^•-- -".I the 1.0 ion :fX"^ *^' ''?' "f *''«
>«m reservod,\ui,l "nl" '.. 1 1 '"'" ''"^'''■'' ^''''^l
the costs. Jirac.tcr 7^ . ' ^'"'npany to pay
|TF|fP^
1755
INJUNCTION.
1758
On a j)Uiiliasc of liitnl, to lio i);uil for by iiistal-
nieiit-', tilt' ]nii('liasiT, altlioiigli not I'lititlt'il in
tlif nioantiim^ to call for a ivseission of tliu con-
tract, may ii'(|niic his vendor to sliew a good
titli! before maliint; any payment, and if tlie
vendor ]ir(need8 to enlorce iiaymcnt, tiie [lUi'
cliaMir, upon biini^inj,' into conrt tlic iiiin(i[ial
and intei'est actually dne, will be i iititleil to
restrain the action, until the title has been in-
vesfiL;ated ; and the |iaymcnt of |irii>r instalments
will not disentitle the |iiireliaser to insist iijion a
gooil title being shewn. 'I'liuiiiiisnii v. lU-iiii.-<l,-ill,
7 Chy. .")4"-'. .See Crunti v. Oltnii, 8 Chy. •.';<!).
I'poii the sale of land the vendor gave a bond
to indemnify the imrchaser against a mortgage
on the land sold, and theicuiion the puiihasei'
gave a mortgage for L'.'OO, and paid the residue of
the purchast^ money in cash. 'I'lie mortgage given
by the purchaser was tr.ui.sfei'red to a third party
for value, but with notice of the jnior incumb-
ranct', and he sued the i)\ii'chasi.'r on his mortgage,
■who theieiiiioii bled a bill claiming a right to
apply t\w amcmiit due by him in discharge of
the prior moitgage, then due and iin[iaid. A
motion for an injunction to restrain the .action
at law was i'efuscd. 'I'liU,'/ v. Urii'llmrii, X
Chy. r)(!l.
A vendor who was unable to complete his con-
tract for sale of real estate by reason of his title
being defi'ctive, had, iiotwith;:tanding, iiistitn-
ted proceedings at law to enforce payment of
the purchase money. 'Thereujion the purchaser
tiled a bill, alleging his willingness to perfoi'iii
the contract, if a. good title could be iii,-ide, but
that a good title could notbemailc ; and that he
hail paid jiart of the pnrchasc money, and made
impi'ovciinints on the property. l'])c)n a reference
as to title, it wa.s shewn that the viiidor was
unable to make a good title. On further direc-
tions, the court ordered a perpetual injunction
to restrain the action at law ; repayment of the
amount of purchase money paid with interest ;
and that the same shoulil foini a charge on
defendant's interest on the land ; iind that de-
fendant should jiay the costs of the suit ; but
refused the iilaintill' any allowance in respect of
the improvements made by him. Kilhurn v.
U'orkiiKiii, '.) (.'by. •_'.">").
Upon the sale <if lainl .subject to a mortgage,
the vendor covenanted to indemnify against in-
cumbrances, and the iiurch;iser g.-ive a mortgage
on the land for part of the purchase money. He
afterwards learned that before his jiurchase,
these and otlur jiremises had been mortgaged to
another person for a s\ini larger than what he
then owed. The ven<lor had since assigned the
purchaser's mortgage to the defendant ('. The
prior mortgagee being alxiut to sell under his
mortgage the iii'eniises covered by the second
mortgage, the iiurchascr filed his bill against the
assignee of the vendor, and the vendor, claiming
a right to apply the amount duo by him in dis-
charge of the lirst uuirtgage, and for an injunc-
tion to restrain any action tor such anmunt, until
the premises bought by him should be released
from the lirst mortgage. It did not appear
clearly that C, the assignee, was a purchaser of
the moi'tgage for value, but rather that he held
it as collateral security for a debt due, and the
vendor had become insolvent. Under these cir-
cumstances, an interim injunction was granted
upon payment of the amount due into court.
JJeiw V. Cnnrfvrd. 10 Chy. 442. |
Wliere vendors lind not funiLshed ,iii al.strat
of title notwitliMtanding rejieated notiws ,||,,|
had at length brought an action at l.iw un 'ni,,. ,
given by the purchaser for part cjf the |iiii, l,,,,,
money, the purcha.ser tiled a bill ajlr^m,, ti,. '
by reason of the delay, the contract wns'nt
end, and )iraynig an iniiiiK^tioii to stay th,. m'hi
at law. The vendors failing to justiiy ^\^ .,
neglect, the court gi'anted the injiiiirtinii. Hi///,,,
V. AriiinlroiKj, II Chy. ',\~,'.).
Where an ;ictioii at law h;id been lpi'iii|.,||| i,..
a building society against W. a.s surety for tl,',,
secretary; and W. lilcd a bill to restrain tip
action, founding his eipiity on u rcsiiliitiuii ,|.
minute of the board of ilirectors as fnlluvs ■
"ThatA\'. had re(|Uested that IiIm security fi.i
the secretary might be cancelled. ItMasMi"
gcstcd, also, that I!. W'.'sn.unie slioidd he ciaH'l
irom the said bond by wish of the hoard, aii.'i
both be i-clievcd as securities. T. Mas niiiustf/
to submit two other nanuvs as securities in \,\:\i:v
of the two gentlemen naiiH'd :" — Held, tliatMuij
a resolution adbrdeil no ground for iiitcrkri.ii(.i'
Wli'iiti iiiiiri' V. J!iiliiiit, 2 Chy. r)2.").
The Iilaintill' had subsci-ibeil to aid in iIk
erection of a parish church in 'i'oroiitu, with ,i
view of enabling the ehurchw.-irdi'iis tn uiutt i'
on the (dd site, so as to av(dcl Icasiiii' (ilf luir-
tions of the land aliout it used as a hurviii-
ground. Subseipiently, at a meeting nf tliu'viv
try, the plan of the building w;is cliaiiLicd, In-
reason <if which, in excavating for tlie fduiu!;!.
tion of the churcdi, the graves of several iiuniljirs
of the jdaintilV's family Were distuihcd. ThtTt-
ujion the ]ilaintill' wrote to the vestry ultrk
annulling his suhscription, and being suud in
the divisi<in coint for such suli.scriptinii, l;.,'
moved for an injunction to stay siicli actimi.
The court, under the circumslamies, rcfusud tlit
a[iplication, with costs. Iliiranl v. Ilnrri^ ,"
Chy. 22().
(^ua're, whether this court will in anv asi.
restrain an action in the division comt. ///.
The owner of a steamboat sidil teiiof tlie sliarw
in her, taking the bond of the veucU;e fei-a pdr-
tion of the [iriee. The vendee sold the samt
subject to this bond, and the shares wciuaftir-
wards transferred in trust foi' the hciiclitof tlie
original owner oi' the vessel, who .-till ladd tlie
bond ; notwithstanding which procuciliiij^'.s were
taken by him to enforce p^iyiiieat of tliu Imiul.
The c(Uirt restrained further pr(icccdiiig.stl]fi'e()ii,
and (U'dered the bond to be delivered up to lie
caucelled, with costs. 'J'hoi/i/>-^"ii v. IIV//.'-, J
Chy. o!)4.
The receiver in a cause distrained for iviit
On the following day ncjtice was given hya [iinir
iueumlirancer that he claimed the rent, ami
three days afterwards the baililt' Maswitlnhawii.
The tenant brought trespass against tlie receiver.
The c(Uirt I'cstrained the action. Sinip.'cn v.
llalchi.Miii, 7 Chy. :{08.
rroceedings under a ti. fa. at law liaviiij; Iwii
set aside, and an action brought ai;aiiist tlie
master, in whose name the li. fa. had lieuii siic4
out, an injunction was issued rcbtrainiiy I'M-
ceedings : — Held, the aiiplication for an iiijuiie-
tion in the original cause in this court was regu-
lar ; and that to the ofKcer of this court slKnild]
be referred the (piestion as to the amount iif|
damage sustained by tlie proceedings set asiile.
Fiakvr V. iliass, 9 Chy. 40.
id not funiislud an alistract
diiife' niiiciiti'd iKitiws, ai„i
it an tic'tiiiii lit l.iw (III ,T||„t|,
act- for iKirt (,f tlir luinl,,,,,'.
LT liU'll ;i liill :ill.>;..ilH;tll;it
ivy, tin; t:<iiiti-;u!l wnK'nt 'i,|j
1 illjUllctii.ll ti.,st;ivth„H'|it
'"■■■* litiliiiK tn jiistilv thiir
iiiU'dtliii iiiJinii-tioii.'lr„/,„„
iv. 'M'.\.
it l;i\v had liuijii ln'.Mi-lit, liy
^'ililiwt \V. iis surety lur tli'o
liird a l)ill to rcstniiii tiie
s oi|iiity (111 11 ivHdlntioii „,■
il lit' dii'L'ctdi's as Inlluvs:-.,
icstud (liiit liiM smivityfnr
1)0 i:illl..'(;lli;d. It Ww'mi.^
AV.'.SllllllK. ,sll(,l||,l ho Clllst'iil
liy wish (if thu hiianl, ;ip.l
wuritios. 'I'. «;isiv.|u,>ti,;
iijuiu's as seuiii-itics in |i|;|,.,
iiuaiiii'd :"--H('lil, tli.itMiiv
11(1 Knmud fur iiituTiiruia
^ -2 C'hy. r)l.'5.
[ suhsei-iliL'd til aid in t!ic
uhurih in Tindiitu, with a
L' uhiiiviiwaidciis til cRiti!
as to avoid Icasiiii; ,,|t j,,,,..
about it usL'd lis a hui-viii;
tly, at a luot'tiiiL' nf tliu'vc'
: huihliuy wa^s VlKiiinod, Lv
exfavatiuj,' I'or thu ?(iiiiii!a.
U' graves ot sevvraliinniliiiv
lily wi^n: distiiilicil. Tlicro-
w roto to thu vcstiy i'IitI;
riptioii, and lioing suuil in
tor siidi silhhi.Ti|itiiiii, he
iR'tioii to stay Hiicli ai'tiuii.
l; (.•ircunistaiu-us, rcfusuil tiic
ists. /Iiirai-il v. Jliird', j
this ciiurt will in any i-ast
the division court, jh,
milioat sold tf 11 (if till' sliari-
iiiil of thu vtmUr fdv a pur.
Till; vi'iidce siilil the saiiit
[, and the slnires weiu al'tir-
1 trust for the hiuelit nf the
It! vessel, who .still la'ld tlie
iiig wliieh iH'OL'uuiliiijj'.s wcw
iforee iKiyiueiit nl tliu Imiul.
further iiroeeeiliug.s tlierinii,
nil to tic delivered iiji tn Iv
ts. 'J7)viii/i^i,ii v. I'i'ilb<,
r cause distrained fur iviit.
f notice was given iiyii pnur
lie claimed the rent, ami
s the hailitf Miiswitliilnuvii.
respass against tlie receiver.
I the action. Simjunn v.
)8.
' a fi. fa. at law liaviiii; Iwn
ction lu'ouglit against the
ne tlie li. fa. Irid iieen .sileil
rt-aa issued rc'^trainiiy pm- ;
aiiplicatioii fur an iiijuiiL'-
ause in this emirt wiisregii-
otKccr of this euiirt slunilil
stion as to the anmuiit »fi
Y the proceedings set aside..
ly. 46.
!?.')■
f. liun'MSedfroni.S.. win, cmvcv,.,] f i-
,™lini>n<'dl.i.ely took liiek a .no rf,/ \ '"'"•
,lie|iu.rl,aso iuoM,.y, „. which /'te/",'r"''''
j,ii„. L afterwards eoiivever J ''"'""'
M S., and S. then sii|,| t, '' , ""-^ c.inveyed
kvin. died, his willow's „i'ti';;:.r''^^- '-
■V"ll '"-' P-yin^ an i.iinne ill; "t^:; -V;--'
ai'tmii. mid tor a dee ar.itioi, tl,.,, ! '"'-^ '^''"
w,is.,.i(i..rti.e..ir,.i„„st.,t, '';■;;''/•'"•
il.,«vr,was ,lisuii.s.se(l with e„st; , "'^',"'"'. '"
thin ilecree was varied, l,v il,..]., • '■'l-,'"''"'''!,:;
n,„rt,.gewasnotexfi,;,„isi:'l';:^":^/''"t "'"
tlie imrtliase of the ciiuitv of .. I '' ;'.'""W "n
Jff.|Ornie,^,din'M!;,;l,'i;;i;^7|'yS.
'I'.V ot lei- ,1,.,,...'. , ',"o
INJITNCTIOX.
n;v tor the ■i.;;;;;;::rher ';■■'''' ''•■'''■'•'^'''-
dmdtlmtthc,l,iwersf. 1^1 ;;"Y^
obwil with the pn-nie nt 'V"!';'. ■'"'"''' ''l'
iiiteristiif the ni(iti^. lu :,,;,;;'''-'■''"•'' -'fth,
>e,,,lant..li(.set(.pa/,i[i^-.rr^^;.,|';;f^-theilc.
! Jil^eilul.t. I'er Ksten, V (■ ',' ' ' *'''•• """■t-
I (if merger i.s one of iiitenti„„ • i,t|„i ''"'■■'''""
eviileiice of intention, the eo, 't* ;;'""'"'!'/'f
tiiate„nr.esele(!ted liy the „u , i '■.""•"ider
».ttorhisl.enelit,ai! t, I -IT "■'■''■'' "••■'-^
i..rW,.rl.eean,,Mn,.,'.e,l nS •! V"' T*-' *''^'
iJamtilf had in, einiit? to iv.f. .1" ' *'""^ *'"•■
'''-'■•■■'"•'that{i,?hi'';, ;;;' 1-'^
\Hr„riiy.lo,r, <)Vhy. L'C.-,. "" 'I'silii.s.sed.
t".his,vif,.,,n]iis,v,al ■.,„I
ihidislie^ntlrclMp;; '-, ;';'^y'''""l. '"nler
h*lai.l.li,,.(lto hcrown use the' , ' ;• '""' *""'<
Tlieeiiiirt restrained an ai'.fi n 7"'' I'Vl'^'^.v.
Jlvlieraialherseeouiil, , ' ''r'-';''''>'.^ld:
lU elected to take nude '".';'"« ^l">t s|,.,.
|t. CcMh,., J3 fiiy. 7.;; ' " '"• *'''-'"'■"//
Mmigh. since the C. f, I' \,.. , •„ ^
Icovervni aid of defences at Y'll ' ' '^"'' '''«■
|fcy«-illlie:liutin ^ucU^iZ'th'T-^''
leaniKit m.ivo for an ii,iuncti( ,1 f ' ''''■""fi'f
,P«,li„^ at law nn e ' HlT'"'^'"'^''^^
ItaVs, rniler siieci.il ;. "''/' f"'*-''' I'lterroir..,.
k-..t,ii,.(a't(;,r'th::!! ;;;•;;: --.'-«..^;
|G.wiinati,in iu aid of sud, n "'"'"^ '"■•'"
|«'-ltl.einjuneti,.nt l^'t' '''•''' ''rf-''t.
1 l')S
'" ■'"! action on i l,.„, 1 .■
'"^••l<-'t dues and f.t I ',''';''*•''''" ''f '•"'•'•"•'
••""' 'I vordiet „.,.', r* ' "'• '^''•' "•'I'* plead. il
'!;'*^'''*i''''toS,!r' .,'t::?,;'1'■''''r'^^•"'''
'"' A,'.;o,ii,ii ,„■ triinil .V,. I '■;•'■■''•'•'.' .^"i''. '-•'
!;«f''""illijr proceedi,.,, „■" H ' '"' ■■"'"UMllctio,,
','"• ■•"'«"■-.,' deiiie, 7|,;," , /•^'■';"f""i i.^Hne,l.
I' ■""f"l'< aniended tin |, , ;'• "'"■'.'■"Pon the
^'""WH of fiviud, ti I , • "■"' "•'"•' ""•tluT
'^"■t'HM-cliar.es, n ,: h''^;;'''-''yi''Wfl.'.se
',';'•• 'notiiiii \v,,; ,4';; p;,''''- tl'-^ iniunctio,,.
«'^?':rr;c::'ii;:;';!:':::,:^-'^^ve....,,ti .;„
•'.'■■'y.l.eiutl,(. she r,'t ''■'• '""'-'I' 'I'-Vrit
'i^^i'Sff,,t;i;;:---^tedi.yii,,,.,,,,^
^^■a. ohtaineil ag.iiust he , , '^ .''" = ''' '["'"""■"t
;-"t""' 'W'i'ist his Ian Is , I'^^'n'^,'-''''' '"' ^'xt-
W^ViCcd p,.„,„,t,. : ; '.'7', ',;-lltl.o,n,,rt.
|.,"".l«'"-ntcreilit(i,... u .,;\, "' '''^■'' •''^^-^t the
'"^'"«a,li„ittc,ll,v/:-,7'-f;^'^"-. these facts
! i' ■'*l"-''-'.''l i.iinnetion r. . t • ' , ' "" 7'"'' ""'"'t^-l
"'y-^ i"ider the writ //■'"""« '•"■iher proceed-
-^11 iiitcinliiig nurclmsci- „f 7 • ,
IW.-l"i.I.t "htthe ,'.;", '^-'f I'^ids had
It't-rwa.. in lien „f d, J ." '";"''; ''y tl-o tes-
IrierkTslie had or c , ;i' : ''■^'^^•'1 !i'^' widow
■""v,, lier answer vsV,'/"''^-- "'''''' *'"»*
l'^k.1 "0 ground for he I, 1 '''^"^'^^^ >'* af-
IflH' to thi., ,,,„.;' /,":., •"^'.'■•'«^''' ■••fterM-ards
P«.er l„,iught hvth.^\- I r' ■•'■'•''■**''» f-'''
Vl"-ltliat: uudl.,.tlo t ;'of";j '"^'••,''^'i"y
,,V|"f I'Ht to her elect,,, I- '" ''''"• «''^^
pr./,iV„,/,/ ]5 ^.,,^._ o-,5 Z'''^'""- t'i"-w,ath,-r y.
I "'Wii pniperty was convevcd f, ,
»*f ™ .igreen cut with tl?^ to a hu.shand
W'("rsl„iul,l heallou-.il f ''" ^'"'"'^ee that the
t «'-'f a. pi;;.£ri!^; -':'-'- i..p....essi(,^
{*">tl.e grantee li u ' H.Jt^''' *!"'* the
l«*ote,l hy fraudiW '.''y'^ "^« '"«"••
^'''*'ii/cM..,oC« £ t 'IV^'-^Tresentatir^^
<««Co.v.%„„,20Chy. 409,
:'l''"t,(lefcn,i,rwas ^:■;;"'''^"''^i'^■-'•l'loten-
'■^"'-I I'y l'''"'ntill- fur f!,,:^. ',;,*' '''''.''-taineiTand
: l"'"P"i'tions ; and ti 10 , .• v''"'''^' '" --•'■'•taiu
'';'^I-';l-'ta.ainst^anhJ'';'":^: : ]" ''"'-"nity
" ..l'"lK'ne,it, to l„. ae !„,),? "^'' '.' '■'"dcsshui
l;,'""tiir nicetini' tl e , ' /'"'■^ '" '•'-■f'u.lt of
iJJ'^V'^untiir.i-dede^lt'af;',^"'''' ^'""l^-
ittTcd "I.ju,lKnn.nt.1n I )• ""' •''^^'^"daiit en-
''••'""■t di.s.xoh,,d .,,,•'" '""'tL'xecntio,,. Tim
i--d, aithoui-% ;/'7;;-';«inehiia,Mi!;,
i''""''t"'l whetJier 1 ' i ' '^'"-■'•""•"t it was
lereatedl,etweenf^,:,;!'^r'1"'; h' ""* '-•^"
l''''",ti/f iu the exe en i, ,' '"'^ ''-'^•■'"Unt (the
f ""1^1 provided liv 1 d "^V""^*^'' '^-''t'""
^" ^'^' levied uiio,, t ,'•' "'^' ".^'iw'nient,
7'r"''t ^''-''-t t ■ St ;;;r i'"-"''^'' t'-'-'t
'l-'lMcted tVoiu heaii .,; .-i' ''■"■•Pr- ^'""'"■l '"^
'"• *''^'t the inju... I •,;;i'r''^'''* ■•'■''' --H
espeet of that anion t, ''^'f ""tinned ia
l^'""!y>'t the iii,^,,i, \,,'''''h '-'li«.^., who
pi-i'-Hn. //w^;''/-i';^';'(',;;;";;th.ue.it„
ith^:;,:t^r^:;''-!;^---
i wWoh certain' 1 il 'i 'tif"-'"'' '' '"""!«. ""der
I «:ere advertised f,.,:\,,'^ *'if.,'-""""'^; "f' "xf"r<l
^^">;tll America, v ho -ere ,."■ ^"H "'' I^ntish
«--l;torsof M.; but SI se(,nl'fr' J"''^-^^'^'
R- the a.ss,guee of K •l"' " ^' ' '* '' '^
'«;""«, 1 ho would assi';„ ifte":;'*' *".l«y uio
liJielankof J!,.iti,], \ It) 'l^"" * '" J"''«'"«^nt.
1 "^"' '-ill against .M,i''. ^"^'^^^'^ then tiled
!/)•• •■uid fore,,,,,, M., d n,\'"''V'r"°*"'-^'''^«'»
|tion to restrain the s- ! 1 m'' ^",'' '*" "'j'""--
i '■■"urt held a iirior uJ ^ *''" ^'^^'iff- 'J'he
n-u.f creditor, and toJZ\t'T'''^ J"''«-
M;;-.leredtliat upon paS' . 'V'^rf V^"*' --^"-l
receive and assim k' ', ; , *" *^- ('^ ^'e would
i"ot. thou upon payment i'^'"*. T^'' ''^•"l if
I ynent into court of tlie sanie
it
I7r)9
INJUNCTION.
ITCO
ninount, nii iiijiinutinii bIioiiIiI imiiio to roHtrnin
tlif Hiilu by tliu »heritr. 'J'ln Html: nf li. X. A.
V. Muoii; S Cliy. 4(il ; (i I„ ,F. 'I'C^.
Till! Molicitor of H iiiortpi^co, in a Hiiit of foru-
clomiiv, aftur a lU'crrc of almoliitu foivi'loHure,
jjuri'luiMcil till' iMort;,'ii^'oi'H iiitt'i'L'Ht. Tim ilu-
crt'c WiiM Nnl>Ki'c|iu'iitlv Hct aMtilc, ami a ili'criio
liini (liit'i'U'<l to 111' liiiiwii up, ijircitiiig inter
alia a kuIu of tin; )iiortL;a;;('il |iri'niiNi'H, miil that
till jiiil).'iiiL'iit LTc'ilitois KJioulil \\v Ncrvi'il with
till' ilicri'i'. anil niaiii' particH to thi' unit. Not-
Mithntamlinj,' this, the Kolic'itor, who waw also
n jii(lj:nKiit criMlitor of the iiiorti,'agt'(', |)roct!t'(l»!(l
to Mfll tilt' niort;,MU'' iH'cnuHi'M nmlcr execution on
liis juilgnicnt. The couit rcHtiaineil tliu Bolici-
toranil oriii'icil him to pay co.stM of tho applii'a- I
tion, (I'diiihr'iii y. WtUUiiiiM, ,"» (-'liy. 178. j
A., the puivhaacr of saw logs to he deliverod
at ceitaiii Hpeuitied tinie.M, aNsigneil the eontract, |
mill the vemlor ileliveivd one year's supply of ;
tho logs to the assi^'iue. Afterwarils A. oeeoni- l , ,, ,..,. .,
ing inHi.lveiit, al.seomleil, iin.lthe vemlor refuaeil '''"'"''!/, !•• C hy. .10.
^^ here a l.ill i» tilu.l t«» ruiitrnin the Hii/ui,. <,l
g<io<ls of A. on an exeention agani«t It., „|, tl,«
groun.l that tie' n„,»U have a piiiiliar vnlii..
whieh ihunages wouM nut niiii|,eii,,t,. Hi..rl
loulil he ilistnu't ami preeiwe alleyaliiiii.s nf ^\^^.
neouHsary facts, am'. ■ gi'ueral all.'|.atii,|| tint
the ilaniage will I.e invparahlr i^ n.it Milliriciit
on ili'Miurrer. (liirtM/iiiif v. Tlh t;,„y ll„„lt yi
Chy. 187. ' '
A juilgniunt having been r'^i'ovi'Ve'l a;.'aiii«t the
obligor's exeentors on a voliintaiv ImiihI In fin,,iir
of a charity, ami exeention issunl thi'ii'druitfiinst
his lamls, the court, at the suit nt tli,- liri's,
straineii procccilintjion sni'li excciitiiiii.
■inn v. I'liliii', 14 t'hy. 1 lit.
Till) title of an executor b.'ing ilirivcd
the will anil not fioni the pmliati'. tlii' ,
refusiil to restrain execution against the l.ui
a (lec'easeil delitor on .i juilgnii lit rec
against the executor before innbate. Stu,
I'f
iiirt
» of
"Vil'tll
7' "••
to conijilete the contract, iisscrting a right t
stop the gooils ill transitu, or to retain them in
consei|ueiice of .\.'s insolvency. Tht! assignee
theieu])oii coinniLoccil an action at law in A.'s
nniiic against tlie vtiiilor, in which he reeovered
judgment ; and a bill by the viMnlor to restrain
])roceedinus at law was disniisBcd with costs.
ll'<o'^ V. Sen//, t) Ciiy. I'll
Iniiinctioii awarded at suit of the lieir, to re-
strain execution against tlie lands of a deceased
jiersoii ill tiie hands of his adniinistrator. defen-
dant having administered to the eatiito in J'lng-
laiid only, and there being at the time no
Canadian administrator. flniu/ v. JfcDuiKil'l,
8 I'hy. 4(iS.
A creditor having iirovcd his claim in the
niaster'.s ottiee, afti'rwards pi'oceeded to sell un-
der a ti. fa. r])oii application of a co-defendant
the sale w.as restrained with costs. Ccliiint' v.
Diirli, !)Chy. 48').
A debtor while indebted to one creditor, and i '•J'^'*-'"
alleged to be insolvent, assigned a note to an- ^ """
other I'reditor for a buna tide debt. Subse-
quently both creditors sued for their respective
<leiiiands, but to enable one of them to obtain a
lirst judgment no defence Wiis entered to his
action, while the other action was defendi d.
The court (following ^'oung r. Christie, 7 Chy.
31-,) refu.sed to restrain the first judgment
creditor from enforcing his execution. McKrniin
V. Sini/h, 10 Chy. 40.
This court has no jurisdiction to restrain exe-
cution or other proceedings at l;iw on a legal
deniind upon a written iii.'itrunieut, on the
ground that defendant at law h;is a counter
claim for unlii|uidat( d damages for the violation
by the jdaintiliat law of covenants in the same
instrument. Snti/h v. W'ootti'ii, 12 Chy. 1200.
A judgment creditor h.ad issued at the same
time, and idaced in the hands of the sheriff, alias
ti. f.as. against goods and ti. fas. against lands ;
and the sheriff, by direction of the creditor,
made a seizure of goods, and tho writs against
goods were afterwards, and before sale, with-
drawn. Meanwhile the debtor had conveyed his
land in trust for creditors. An injunction was
granted at the instance of the grantee to restr.ain
a sale under the writs against lands until the
LeariuL' of the cause. Paton v. Tht Ontario
Bank, 13 Chy. 3GG ; Ih. 107.
On an api>licatioii for an injunction af.'aih.-t ,iii
execution at law, the iilaintill' In ei|uitv lias nut
necessarily to satisfy the eouit liy i\ ulciiii' that i
the facts, if disputed, are as his liill aii'l athihi-
vits state; but only tiiat there i< a siili»t,iiiti;J j
enuitable case wliicli might to be ilciiijcil ininre
execution goes. Triuihnll \, M,,i-n.-., l.'iChv, lii,"). |
Where a jiarty wrongfully stud at law inmoj
into eipiily jii-iiniptly, mi that, by iiicanw iii (.iirl
circuits, his eipiitalile ease can be, trieU within aj
few weeks of the time when a legal iIiiViicbJ
would be triidilc at law, if he vcrilicti hisliil
slii'wing a g 1 ci|iiitalih' case only trialili' in t!
court, he can scMom lie refitsi-il an iiijiuii'ti''
restrain any execution going until the c'(|U
(juestions are disposed of. H).
Injunction granted, at the suit of tliu iri'li-l
tors of a canal company wliu hail a lien mi thel
canal, ag;iinst a sale thereof niidcr a sii!isci|iiriiti
utioii. Tiiii-ii iif DhuiIiih \\ Till /^'s'lm'.l'm
I. Co., 17 Chy. 27.
The plaintiff and another bmiglit frmii a ti-it*
tor's executors and trustees certain real ami \KtA
sonal estate ; the re d estatu was siilijirt \«
mortgage which tiic vendors agreed tn jiay ; thd
])urcliaser.< jiaid their purchase money. Imt tlia
vendors applied the same tu ]iay utlienliht- ol
the testator, and left the luortgage in imrt iml
paid. The plaintiff having IjoU'/lit out his
])urehaser, filed a bill a.gaiiist the e\ociitnr.<
decree by consent was m.aile, giving the [iliiiitil
a lien on, the testator's ;isscts, orileriiig tlu' ilej
feiidants to pay personally what tla' iiliiiitil
should fail to realize from the asset-*, ami ilir-.cH
ing the accounts and iiii]uirics usual ir an.i'iiiii'
istratiini suit ; the estate was insufliiiuiit t" p'-j
all creditors ; befoi-e the iii.'ikiug of tlu.' ilcLTn', (
creditor of the estate had nbtiiiieil jmliiiiielli
against the executors, and the siiuiill'si'izcil iin
sold goods of the testator in their liamls : Helq
that the jdaintitf had no right to pi-uvciit til
creditor from receiving the luouey. Ihni-ijy
Sliari), 18 Chy. Hi.
Where a debtor died, leaving iiisullii'ii'iit iK
sonal assets to jiay his liabilities, ami his cvi'd
tor notwithstanding allowed a ere litor tn rani
a judgment against him by default : Ih'M, ttt
the executor, on obtaining an ailiiiiiiistrati^
order, was not entitled to an iiijiiiictioii ag.iin
IT CO
riiKtraiii tlio mi/uvi' nf
iciii agiiiii:<t iV, (III tliu
iiivii a jHi'iiliiir \A\\v,
lilt 01illll"Ml-' ill , tlll'IU
coim: iiUf^.ttiiiii!* iif lliu
rolUTlll illlcjliltinll tllilt
iiralilc ii* imt mitlniciit
V. Till- Uoiy Itiitik, \'.\
ell rii'iivi'ivil iitfiiimt till)
ulmitarv liiiiul in t'livimr
111 i:i,siiri\ tlwriMuiHUiiinut
lie suit l>t' tlll'lu'iV!', iv-
siu'h uxi;ciiti<in, ,l/i''"'-
t).
;iitor living' ill rivfil
tlio liVnli:iti', till' iHlirt
utiiiiwvuiiiiisttln' laiulsiif
a iuilnuii lit rii' 'Ai-ruil
t,(,,re imilat-'. N'""'/' v.
r an iniiiuctimi ;v|uMin;tiin
jilaiiititV ill .Miuilyliiwimt
lie cnurt liv lAiiluiuTth.it
;,vi' as liis' l.iUaii'l;itiiila-
t'li.it tlic'iv i:* a siili»t,uiti;il
miiUt ti. Ill' <Uri.W4 liiinre
'„.;.// v..Un,ri.sl.'' I \v.li..V
„,, fully suimI at lawo.meti
r,, tl'iat, liV uu-'aus ui uiirl
' casu can Ik', trif.l wuluu al
;,„e wht'ii a k'gal il;Uiic9|
law, if liL' vi'Vitu's lnsliill,J
■iliK'i;asiMiiilytnalili'iiitl
buvi'fuw'il an iiijuiictK
,U goinu until thi' niu
ilof. /''.
h ;it tlio *»nit of till! on-'ilij
,uiv who hail ali.nimthrt
thi'iTof umli'V 11 aulisiiiui;i«
I),n,<lns V. Tl«- />»J'"'''"'
IvustoL's I'l'ftain >v;.l iiii'l l«r^
,vl ..stati; was siiLli'^ tn
v..,.ln.'^'vgv,'c'.ltnv;wj hj
„• vuvohaso money, nt till
inot,.v:u-tU.r.li' >0l
' the niortga-o ui l«ilt "»!
liavin- l.on:iUt out u* ^«-
111 a-ainst tlu' ox.M;atni;s i
Ln"v.lo,«ivin;4tlu'l»"tJ^
Vs as-i'ts, ovileniig t n' n
Lnally what tli. f^
from till- assets im-ia 5
L,tc was insutlii.'ifiit t" N
' . \,.„\ olitunc'.l .in'ki'.ell
/ami tl.o ^l"-'""',^^""' ;%
fatorintl.eivl.ivn.ls: H«-1J
a no riglit to vrou I «
fhit; tlio money. ''""•'' ^
L.,l, leavrnt^ '"«"!''r'" vid
riliiweilacreUtortorccuJ
r^u, an. ail-mms 2J
Ll to an uijunctK." .^o'""
i:6i
ihy. «»•
\ (iftvcft voluntnry lioml to H, for t.">,(MXtiitiil
.fcwilw" iiftei'wanlH a likclionil toC. : iieitlier
^^ jjiviMi for any Irainluli'nt |iuriHi«e. C re
ftrt'il jiiilu'inent on tlie nceonil lioml ; aiiil tlie
Ikiir liii'l ii''f' |ir"l»'>"t.V eiionuli t.. pay liotli
INJUNCTION.
17fi2
mutit having tienii ituKtroyoil liy tliu tnort^auuB
rtinl ejectliu'llt liriiliylit on tlie ileoil, ttio eimrfc
ruMtraiiiiMJ tlie inorti.'a;,'ei' fi'niii eiiforeiiiK liin lugiil
riglit. lliirni v. .U'l/'i", 7 I-. •'. -4H. t'liy.
Ill a iiroper eanti uiion )ii'titi"H liy ilcfeinliHit,
' tlie I'liiiit graiiti'il an iiijiiiiitioii ajjiinst tlio
Ali.lir llllil not' llli'inMlv e ^ii u- y^i ■"•vm jll'lintitr ill U jcetlllUIlt liroil'l'llillJj;M. /llllfi/iV,
SwIk; H.M, tliat !!,, wlione lioml wax jiriorin ^ J},iim,„i, Cliy. 48li.
,!,t(., liml no I'unity to restrain proueeiliiiKH l>y '
(', t»
iiit'iiri'i' the iiiiljjnieiit reeoveieil ; nor to
„t AiiiU' a conveyaiiee niaile liy .\. of iaml of
U value tiiaii the juilKmeiit, ami wliieli C hail
..„i,tf.l ill iliHehargu thereof. S"i-<nhnm v.
j/„„U.„«/i.7, lil (..'hy. 530.
(A\ A'Jd'iiitf '"■ '" EJi'i'hiH III.
Wkrc the BhurilT initH a iilaintitt" in imssesHioii
M,lcr.'iwrit of liali. fae. imx., ami the iilaiiitill'
1 m'wwurils ipiietly reliiii|nishi's that iioHMession
[in •iiiwi'i|Ui;iii'i'"f'l'^'i"''"K'^'''''''"' i>i,i»"''tion hail
j^,,„.,l from the ( 'onrt of ( 'lianeery ; IleM, that
r<'iitlH'iniiuietion lieiii,!.; ilissolvuil, they eoiihl
lit kTiiit the |ilaiiitilV an alias writ of iiiisseHsion.
Ihl Deiliw V. Jl'iiihrmii, .") <^ 15. '20H.
Til IS.'O S. iij/reeil with M. for the imrrlnHi' of
100 aires of Iaml, ami tiny entireil into a written
I eiintraet. S. haviiiu paiil part of the pniehaHO
1 llionuy, ap)ilieil to .M., lill'eriii;^ the iiuiaimler,
' ami reipiiriiii^ his eonveyaiirc M. tin ii stated
I til it he hail no title to eonvey, ollenil to pay
liai'li the money reeeiveil, ;iliil allows, to nllllin
I ill ipiiet possession of the Iaml. This wan ilono,
I ami the written eontrait was (.'JMiii Ky S, to M.,
[ to he reseimleil. M. then loin ■■yeil the lainl ti»
. hi.s son, who, with Uniiwh'i1i;e of these faetH,
! liroULjht ejii'tnieiil ,if,'ainst S, At the trial tho
written ii;;rceiin'nt wis ]nit in as eviileiiee auiiimt
S., ami was Inlil to he an ailinissiim liy him of
the title of the plaintilV at law, ami a venliet was
iveeonliiiyly re.overeil aLtaiiist S. (tn a hill lileil
for the Hpi'eilie iierfornianii' of the orii;inal eoii-
traet, ami to st ly the aetioii at law : llelil, that
the reseissiiiii uf the eoiitrvet w.'isonly ronilitional,
M. then nmlertikini; no'., to ilistnrh the pl.iintitr
Till' owner of lamls agreeil to sell jiart, ami
•jt tlu' l«n'ty in l'"S.sessii)n, who iniprovi'il the
■iMiii'ii'i, ami afterwards otVcreil to sell his iin- , , . ., , ., \ e t\ ^ *.
iiMmM, !"■• ,. ,. 1 _ 'I'l ,,,,,„,,i. I III possession ; that tie iisr made of the eoiitraot
'ivciiiciits liai'k to nis veiiiliir. I lie aniiuiiit ' . !, . . ,
' ' ill was referred to arhitrators, who made
III
inmiinl, the terms of whicli were never coin-
[Jif,l with, anil the vendor afterwanls hnmuht
t)«tmi.'iit aifainst the party in iiossession, .'Hie
tmrt i.Tiiuteil an interim injunetion, restraining
tin rtci'iitiou of a writ of iiossesaiou. Cook v.
i.;(l,4t'liy. 441.
Ill ISM ft coiitr.aet was made ■with A. for the
pW' nf the easterly tifty acres of a lot ;
temjli mistake the deed to A. covered the
ti-ili' iinrtli half, hut the purchaser went into
frSitssioii iif the portion iiitendeil to he coii-
wi-1, ,i!iil shortly after the vendee of the west-
ttiyii'rtion took and oceuiiied it without any
A;ntiiiii hy \. (altlion)zh all parties knew of
ii« iTMr) until IS.")7, when the assignee of A.
Ifuglit ejeetnient, and recovered judgment;
Ski iviileuco of adverse jiossessiim not heing
tfeii'iit to ilcfuat the deed so erroneously exe-
atel. The court restrained the owner of the
till title from proceeding to recover possession,
b1 .irikri'il him to eonvey to the plaintiff, who
»!i eijuitalily entitled thereto, and to pay the
wtii't thesiiit. Anii'V v. MfKintiti, ft Chy. '22().
.^ctrsonagiiinatwhom an action of ejectment
iiiiiniiight lileil a hill to restrain the action,
itejin.'iisa gnmiiil that the deed iinder which
|iliintiir ill the ejectnient claimed was a
at the trial .at law re-estalilis|ied it as against M.
and his eo-defemlaiit, and that the plaintill' was
entitled to a decree for Mcilie perforniance,
and to a in.'rpetual iiijumtion agiiiist the action
at law. Siiragge, \'. ('., dis.s. Slmni v, MrXii.h,
10 Chy. '2M.
Two leases were executed lietwcu'ii the sanio
parties, and to the same ell'eet, except that the
tirst lease was for twenty acres, and the secoiul
for ten acres, jiarccl ol the tw lity. It was a
condition of the leases that the lessee should
coninieiiee digging for oil on or liefore the lirst
of .luiie, I8(!l, which he failed to do. On the
KJtli of Septeniher, IS(i,S. the lessor acceiiteil
friiiii the lessee .'^'."O, to liu kept out of his share
of till' lirst oil ohtained, and a memorandum ti»
this elfeet was eiiilorsed on the twenty-acre lease
hy the lessor, which instrument the lessor thereli.y
declareil that he considered valiil. On the IWtli
of Novemoer, 18(14, another niemoramlum was
indorsed on the same lease, and signed hy tho
lessor, agreeing to extend the time of commenc-
ing work on the within lease until .funo, I.S(),">.
The lessiu- was, until after this time, heuetici.al
owner of the property, and he sniiseiiuontly sold
the lot of wdiioli the t'jii acres ••.•ere part ; tho
purchaser h.aving notice of the leases. On his
suhsciiueutly obtaining ;i p'ltent for the lot, tho
C!ourt of Chancery decreed th.at the ten-acre
l*ftty Tlie ileeil was dated about tifty years ! lease was binding on the jiateiiteo, and i-estrained
te the hill was tiled, and all the persona who him from bringing ejectnient; and the decree
Wwitnesscil the deed (four in number) were i was alfirmeil on apjical. Floii}:r v. Didiciiii. 13
" 'Chy. '24'2.
The owner of land deposited his title deeds on
the lOth of May, to have a mortgage thereof
prepared, which was accordingly made out and
executed on the 30th. The preceding day tho
mortgagor m.ade a lease, of which the mortgagee
had no notice. A bill tiled by the lessee to re-
strain proceedings at law under the mortgage
was dismissed ; but, the mortgagee having in
his answer deliberately sworn either to what was
untrue, or to what he did not know to be true.
IW Wiore the validity of the deed was nu-
llticlitil in any way. The court, iniiler the
I«wii3tancc9, refused the relief prayed, and
lfcis*il the hill with costs. Fick v. Mc Michael,
|fty. Ml).
a an agreement not under seal was entered
" W a mortgagee, wdio obtained from the
t.'ugiir a ileeil of certain property, whereby
■■ niiirtgagor w iis aUowed to retain possession
•>pi)rtiun of the property, and the mortgagee
^oth:r portion until he was paiil, such agree-
Ill
I J
!|gv
, !
1763
INJUNCTION.
17G^
the court refused liiiii his costs, although costs
were given to the other defemlants. McKay v.
DnrhUiii, 13('hy. 4<t8.
A mortgjigor tileil his hill alleging that nothing
was due on tiie mortgage, and moved for an in-
junction t) restrain execution in ejectment.
Defendant set uj) a jiureliase and release of the
eijuity of reih iiiptiou, and alleged that exce]it
hy this jiurehase the mortgage waa not \iaid.
The court consiilered that the evidence shewed
there was a fair ease to tiy as to the validity
of his alleged pureh :se ; and granted an injunc-
tion on tlie )daintiH's paying into court .i-'JOO, and
entering into tlie usual undertaking. KitiHin/
V. MrKn; M Ciiy. (108.
The plaintifl", H., heiug in possession of land
helougiiig to the defendant, and being entitled ;
to retain such i>ossession for another year, the '
<lefendant, in order to olitain immediate posses-
sion, agreed that in cousiihratiou tlu'reof he
wotdd give another piece of land to tlie plaintifl's,
husliand and wife, for tlie life of the ■\siU; ; tlie
Inishand furtluT agreeing tliat lie would look
after and take care of tiie former property when-
ever the defendant was alisent ; and wouhl, '
during winter, see to tiie defendant's cattle and
stock. In pursuance of this agreement, posses- I
sioii was <lelivered of the respective parcels, and '
the liushand rendered some services, being all I
that were reiuireil of him. 'I'lie defendant hav- 1
ing afterwards lirouglit an ejectment against tlie
jdaintiti's, tlie court Held the agreement enforci- !
l)le, notwithstanding the stiimlation as to per- !
sonal services to he rendered, and granted an
injunction. Ili n-ill v. lirairn, Ki Chy. (iTO. j
AVhereawrit of hall. fac. jioss. was executed he-
fore an injuiictiou restraining it could he ser\ed,
hut the piaiiitil's in the ejectment suit had heen
infornicilof the intention to apply for tlie injunc-
tion, the court granted a mandatory injunction
re(|uiring the )iosse.ssiou to he re-delivered to
defendants in that suit, pending an appeal to the
Court of Appe.d against a decree dismissing a
bill tiled hy them to redeem. ('(nn(jli<U v. Tlic
liiiijdl t'diKii/iiiji Biiiilc, I'J (.'hy. 477. t
If a defendant at law is guilty of delu- in
instituting his suit here, this inav ii„t hir l,i,
apphcatum for an injuiictic.ii ; hut 'Hicnmrt nnv
re(|Uire the payment of the nion, v into c. uit 'to
abide the event; or niav iiiipo.se otlicr tenn:-
which, in ca.se of a prompt api.liratiou, it w„ul,l
not exact ; or the coiiit iiiav refu.si, tlie iii.,ti,,u '
altogether, notwithstanding the prima faiic,.,,^ '
which the plaintill's bill and .illidavits i.rc.-ci,t •
and it may be exjiedient for the pliiiitilV in s '
a case to fortify his own allidavit witl
evidence, which in ea.se of
lij
thiTl
an earlier ajiplinifii.nl
might have been unnecessary. Tnvlmll y
Morri-i, 1") Chy. Ki,").
A defendant at law uiiiKM'essarily iklaveill
filing his bill for an iiijuiictinii uiitilit was'tn
late to have the eijuitable case it set up lnardj
for six months. There were executions tn
large amount out against his lands at the suit nj
other iiersons ; and the defend.uit in c.|uitj(
swore that, if delayed by an injunction, liu lie|
lieveil he would ]irobably Ioki; his ihlit.
statement not being met, an injunction wa
refused, except upon the terms of paying tlij
money into court, //i.
•]
2. To L'l'.^/ralii U'l, .■</<'.
[Sec c. s. r. c. r. /.', ...
(a) (luiicrdllif.
A general charge in a bill, that defi-nilant, i
executrix and trustee, is coiuuiitting wasti
testator's property, without specifying; any .li
01 waste, is not sulticieiit to sustain an injuiirtirf
or a receiver. Saiii!ir-< v. Cliri-^lii', 1 Chy. I.'i7|
Where an injunction to stay waste was ooi
tinned at the hearing, and it apjiearcd that t|
waste committed did not exceed S'JO, tin.' n
refused to direct any account, and left the aiiii
of the waste to lie dealt with in any actiipu I
mesne prohts which the ]ilaiiititl's nii;;ht Kriil
J'tinii V. Lori'l<i.->.-< 11 Chv. -i;!."i.
A person who has an interest in reiii;iiiiil
subject to an estate for lite, cannot niaintail
Where the owner of proiicrty had executed a , |,ill i„ respect of merely pirniissive waste)
mortgage and release thereof to a municipal cor- , whoiiLsoever committed. 'Zi»i;//'/-»(r(« v. 07.'4
poration, and the corporation aft:rwards sold , ^4 Chy. <i4().
the property, with the knowledge of such owner, ,
and without objection by him, until, a.^ it was .
alleged (though as to this the atticlavits were
contradictory, ) the purchaser had had seven years
(juiet possession, (luring which time he had im-
proved the property, the case was held a pro- j
per one for granting an injunction to the hearing j
restraining an action of ejectment against the
pui-chaser. Brou-ii v. M(\S\ih, "JO Chy. 170.
j Such proof of jiossessiou as
suit at law against a wronjj
prima facie
obtain
waste.
Would niaiiita
doer, is sulHoi
iroof of title til ciiaMc apart
V tlecrce for an iuiiiuctioa to
W'ulbrx. Fn<l, Kl'ciiy.
lO.-i.
8ee Freiic/i v. Tasini; 2'^ Chy. 4.'1(), p. 1734.
(e) W/icii Moiiiij ifill III' Orilcri'il into Court on
Uninl'tiKj.
On issuing injuncti(Ui to stay proceedings at
coininon law, money found due by verdict or
award must be paid into court, ClorLt' v.
Ahnini'rft, '2 0. S. 4,— Chy.
When a special injunction is granted staying
proceedings at law, the amount claimed in the
action must he paid into court. JIarrison v.
JJal>i/, 1 Chy. 247.
(b) Culfhi'j Timhir.
Vrndiir iind /'iirdid-in:] h\ a snit 1
original owner of lauds and his vendee "t"
no eonv.eyauee had been made,) the t'Hn
trained an occupant of the land ami a prr
whom he had contracted to sell thctiml"!',
cutting down the timber, such occuiiaiit hi
gone into p<issession under the owiut : tr
it di<l not appear that sncli tinilicr wa.< oj
particular value to pl.aintitf, and thoiisl
atlidavits were coiitradii'tory .as to the netii;
Authority from the owner to soil it, L'l
v. Judj,', 2 Chy. 301.
A purchaser having entered into iiosi
under hia contract, and failed to meet hu'
1764
g\iilty i>f Acliiy ill
liis may imt li;\v liw
1 ; Imt thi;i.'mivtinay
uioiK y iiit" CI uvt. ti>
iui\">so "tlU'V tlTlU* 1
;Vlip\ililtioll, it Wiiulil
i;vy ri;tus(^ Uif mntidii 1
■j;'t\u' \irimii f;u:i(!case|
u(l iiliiilivits vi'i's™t;|
jv till! \il;iintilVius>ii'li]
, utiiilavit, witli ntliurj
f an earlii'v ;n.\i\ii';itinnj
essary. Tn'"l":ll v.
unnecessarily ililayeJ
,„^;tion until it Wii:< too
lo case it «i:t nil li.'iird
B WUrU CXOCUtlnUS tn 8
t his lan.ls at the suit nS
,e Aflcnaant in t'l";**
|,van iniunftnm, lie liej
l.ly lose'liis -la.t. Hill
lUiit, an injunotuiu w^
ho tonus ot l>rtyi"g Ittl
</ni'/i ll'i'-^''"-
, a l.m- that .kfcn-l-.'-t.
-. is cmnniittinii w;i>t'-
without siaH-ifyii.y/uiy
:i,ut to sustain :u.nM"";^
:ion to stay vvast. nv^> oi
Lo.nnt.analclttliea.,.
u.aitNvitu.>"a"y;;;;^';'^
' the iA'''"t>'l* niiglit l.n
I I'Uy. -i;5.">-
L. an interest in nniKiincJ
nor We, eannnt man uJ
,, vrmiu-'l"ei. >■
|,'\itlet^enaMeal.^
an ininnotinu to u»
i;65
INJUNCTION.
1766
lultlif.l Thnyf.
I I ,. 1 - In a suit I'y;
tulsanaiusveivk.^ M
t„f the lan.lana.v »3<
Te elto sell the uml«',
li„, sncl, oce«V^;>
ll,:ttl'tnnher^v.-
■ owner to sell it.
,in. entere.l into l"«J
ments, was restrained from conimittiiig waste, |
r removing timber already eut down. Farrier
Uvn-, 12 Chy. (i<i8.
Xlie owner of land agreed to sell the growing
tinilitr, and it was stipulated that the jiriee '
jb«U '"^ 1"''*' ^'y t''^ purehascr's note, endorsed
'uV a responsihle party, nniewable for half at I
matiirity, the delivering of such note within ten
liavstiilie the eomiiletioii of the eonsideration
I itrsaiil agreement :-- Held, that this was only a
BiKle of payment, and not substituted for it;
fflil that upon failure of payment tin; vendor was
1 (iititk'il to restrain the felling of timber or the
rtiiiiival of any already eut. Miffhcll v. -Mrd'tijln/,
Hlliv. 31)1. ^'eealso Wii/xli v. Jiruirii, 41j. .L CyS.
]liiri'j(tijor (in>( Mdr/i/niici'.] — The mortgagee
,ii a term for year.s being in possession, will, at
Itie suit of tlie mortgagor, be restrained from
illiii" tinilur, although he may have obtained
I tie cmisent of the reversioner. Cliixliulni v.
1 y,M(.«, 1 Chy. .S18.
Altliough a mortgagor in possessi(jn will not
litixstraiiieilfnim cutting timher for fuel, feneing
1 ud iviiairs niion the premises, he will be res-
Ijiiueil from felling trees for other purposes, if
1 3 U's not clearly appear that the property will
1 .ill Miiain of snilieieiit easli value to satisfy the
srtfigf debt. A^^s^■ v. MlIU, 7 C:liy. 14,")!
Where a mortgagor in possession wa.s felling
Bkr. tiie court, at the instance of a judgment
litpiitor of tlie mortgagor, with an executitin
lioiiistlaiiils in the hands of thesheritt', restrained
Itoeiittiug by the mortgagor, it lieing shewn
Int tlie jiropcrty was a scanty security for the
Ifc of tlie mortgagees and the amount due
ittxecutiou creditor. Wufuitx. Cariitnlrr, 1,S
I Wid' r(i,<('.*. ]— A writ of injunction will be
,Jteil in the first instance npoii an ex ]iarte
Mktiiiu under ( '. L. .1'. Act, 1S.")(), s. "iSd, in
lijctiiin of ejectment, to restrain the ilcfen-
liffitfriim cutting and carrying away timber and
pyfniiu nil' the land, which is the sulijeet of
iiAm. Hnhiiis y. J\irlir,'2 L. .). •_',sb.— C.
lUliamli.— Burns.
J (tare, v.htther the doetrines aiiplicaldo in
IkW betwcLii termor and revei'sioner, in
BJwt til felling timber, can prevail as to an
Uieliore, tlie lieiielicial enjoj'nient of wliiidi is
^muily iilitaiiied only through the destruction
^•riiwiiig timber ; and whether the doe-
ftsxi the ciiiiiuiiin law, as to growing timber,
»l«aiililieil ill all their extent to forest land
fc. Vhy„jlm v. Hhfhhni, 1 Chy. 318. .See
N'v. ir;;//f, '24C.r. 40,").
I'terc ,1 strip of land was vested in the jilain-
~ loennliiig to the report of commissioners
ICMcil to run the lino between two town-
ijliut .Icfiiidant claimed it, and had applieil
pmurt of IJueeii's Bench to (plash the re-
1^ l*iiiling the application del'endant eoni-
"clto fell the tiinlier, alleged to bo valuable,
Hgmi the strip. 'I'he court lestrained such
i until a decision of the motion pending
'the (Queen's Bench. ChriMii: v. Loii;/, 3
•nijunction against cutting timber may be
.•^'Nce the -JO Vict. c. .')(>. C. S. U. C.
I" '•'■ii;) without proof of spoil, trespass and
injury to the extent or of the ebnractor which
might be necessary in Hngland. Whjlitiiuin v.
FMln, 19 Chy. o59.
One S. was loeateo of two lots of land, one a
free grant, the other a purchase, which he trans-
ferred to the plainiilt'. The pl;iiiitill"s agent
swore that some pine tinil)er had beitii taki/ii otl
these "lots in 1870 71, by some person geltiiig
out sipiare timber :" and, Iurtinr, that the de-
fendant was the only person getting out sip' are
timlier that season. After two yens, the court
■ ..isidertMl this evidence too indetinite juj to the
locality of cutting, and as to (|uantity eut, and
the act too old in date to warrant the court iu
granting an injunctinn to restrain further cut-
ting. Jfinilinnii V. Cu'd; -JO Chy. -J.^S.
On an aiijilieation to restrain the cutting of
timber, the matter in dis]iiiti' in this ease being
too insigliilieant *o call lor tlie iiiterfereiice of
the Court of Chancery by injnuction, the bill
was dismissed with costs. BcriHiril v. ililiU'in,
•1\ Chy. 195.
3. Cuininiffiiiil or ('tnithiiihuj Xiii-<(ni<'(;><.
(a) Ofi'vniihr Trwlr.t.
A lessee for a term of ye irs stipulated that he
would not carry on any business that would
affect the insurance. He made an under lease
omitting any such stiiiulation, and tlie nndor-
lessee having eoninieneed the business of rectify-
ing high-wines, was restrained. Aruulil. v. Whilv,
5 Chy. 371.
A party had carried oi\ the business of a soap
and candle mannfaeturer for si'veral years with-
out any steps being taken to lestrain him, after
wdiich a bill was tiled for tiiat purpose, on the
groniiil of nuisance and inconvenience to the
complainant. 'J'lie eonrt refused a motion for an
interlocutory injinutiiiii, but reserved the ipies-
tioii (if costs to the hearing. Umli iilmrM v. Cudtc,
G Chy. 1.19.
Defendant erected in the city of Kingston a
planing maeliine and circular saw, driven by
steam, and was in the habit of linrning the pine
shavings and other refuse, using no means to
consume or prexent the smoke. He was decreed
to desist from using his steam engine so as to
occasion damage or annoyance to the ]daintiff
from the smoke. Curtirr'njlit v. Orai/, \'2C\iy.',W.).
In 1S()1, while defendant was building ;i tan-
nery on land adjoining tiie plaintilt s premises,
the plaintitr encour gcd (lefeiidaiit to proceed.
The business was commenced the same year. In
lS(i3 additions were made to the buildings with
the plaintitt's knowledge and aei]uieseence; ,ainl
the plaintitf made no comiilaiiit about the busi-
ness until 18(i8, tiiough all this timi; it had been
carried on, and the plaintiff had been residing on
the premises adjoining : — Held, (allinning the
decree of the court bidow,) that by his eondiict
he had debarred himself from relief in eijuity
on the ground of a tannery lieing a nuisance.
Uiiiwii V. JJnrar, 18 Chy. 438 ; 17 Chy. (i,38.
AMiough the fact that a nuisance has com-
menced will raise a presumption that the same
will continue, still, where it was alleged that the
niiisanct. eiunplained of was caused by the dis-
charge of refuse matter from the manufaetoriea
of the defendants, and it was shewn that no
( K
1767
INJUNCTION.
siicli refuse matter had been diacliargeil by them
for ujiwanls of a year, they having elosetl down
their niamifaotories (hiring that period, and that
if the nuisance was increasing at all, it was not
througli the act of the defendants. The eonrt
rcfnsed an interlocutory injunction restraining
the further continuance of such nuisance, tiimtn
V. .l(/((/)i.s', -JS C'liy. 'lid.
V. permitted \V., an adjoining owner, to dig a
drain jiartly on his bind for the purpose of dram-
ing a pit (in the lamls of \V. whicli had l)een in
use for some years, and \\ liich it was alleged had
created a nuisance :- Held, that 1'., after having
granted the permission and lying by so long,
was not in a position to obtain an interlocutory
injunction restraining such nuisance, unless he
could shew that the nuisance had increased of
late beyond wliat it formerly was. Ih.
17G8
ciimniodiuus
several i
"t all (,f j
I tl'i- ui.-olvcncv of i
keep, and maintain a safe and
bri.fge aei-.«s the canal ; and th,, .....go, alter
being erecte., havmg becm,, „,„,u\, thrnu^h t] ,
default of the canal c.nipany, a„ iMci^niora ,
roa<l companyac<iuired the n.a,|, aii.l niade
endeavours to get the liridgL' niiain
them having failed, tlir(]iij,'li tlic
the canal company, the n,a,l c,,„i,,a„v at kii^th
commenced the erection (jf a tixcil \l\■\i\„^. i ■
wouhl have the ell'ect of iiiiiMdii,,- tw. '„"
tion of the canal :-Held, (,vv!.r'i,,!ft ;,'"''*='*•.
of the court beh.w,) that thev l.ad n„tL,vS
to do so, anil a permanent iiijiiiictidii \va< ■'-■ . i|
restraining theiii. SiM-agge,' C, aii.l Mowat" V
(.., diss. Ihc Idiriifil' l),iii,l„«\-, Th, H„, -.I, ■
aud Mitton liuml C.,., IS Chy. ;{|i , 17 chv SlJ
. An information to restrain a iinisaiife cured
by the erection of a fence >m a luil.lir lii.rliu-.ui
|allege.l that '-the defendants or s.m ; ,,,"I3
I them," had put uj) sucli fence :^l(oM Iml nj?
I demurrer, as being too uiicertui.i an alkM'ati',,:, ■
round !<^" ^^''"J '""^ i-'"'"'"'itted the act c.inii.miiiL.lotJ
Atl(in(i-i/-(H'ii(:r(t/ V. Jloiil/oii, i!0 Chy. iir>.
(b) I/lijIiirKi/.-i (Iik/ Jtdi/iriiyi.
The court has no jurisdiction on the
of public nuisance to enforce by injunction the
ordinary repair of a liighway, or to restrain a
road company from sullering a road to continue
out of repair. Assuming such a jurisdiction, the
attorney general docs not seem to be the proper
party to .sue. AUiiniii/d'iiicriil v. 'J'/n^ IIV.<^o/(
J'/iiii/c U„ad Co., 4 Chy.'liil.
The court, however, will restrain a company \ sides of the river Hunibcr, erccttil
.authorized to construct a plank or macadamized
road friim constructing or cuntinuing to construct
one of poles. Where sucli a company had al-
ready re-coii.'itruetcd jiart of a road (whicli was
out of repair) with poles, without any objection
on the p.irt of the public, and there was contra-
dictory evidence as to tlie (juality of the road so
made ; but it appeared that bj' adzing oft' the
iijiper side of the jioles, which the company
oQered in court to do, the road would be ren-
dered sullicieiitly smooth, and that to lie oblige<l
to take up the poles wouM ruin the company, the waters thereof to the grist mill aiu
Jill injunction for the removal of tile poles was mill, but which it was said still jieiiiiitttil si
refused. J b. eieut water to escape for (Iriviiiy tlie iiiacliia,
of the woollen mill, and whicli had hctu Imilt
C, tor the jnirpose of coiisuiiiiiij; the w
water liowing from the said ilaiii. .\itcr
defendant entereil into po.sscssiiai of the
and saw mills, he erected a new grist mill,,
threw a new dam across the liverliiwcrcliiwnl
stream than the old one, and of iiKne pi
coiistructioii, in eoiisc(HRiice of wliieli 111
"-■11.1 1- r 1 • I dry season the bed of the river hail hei
easioned by the cars running iiiimediatelv 1111 , •' , , , ^, , . ' ;. "
t * ii , .• 1 ii . t r_ .r 1 1- i. 1 I almost ilry, am the plaiiitiif was uiiiih e to
trout tliereot, and the present tratlic he diverted , . ,,-" .,, A., 1/1
f >i, ... , t c 41 .. 1 u 1 1 ti i ii ;.. b's woollen null. 1 licreiiiinii he 1 ei a
irom that part or the road : — Held, that the in- 1 1 ^^ ■ 1 • 1 ■ ' .
,1 111 i. i i i : and olitaiiied a siiecial iniiiiictiiiii rcstrainiiii
nirv as alleucd did not amount to a private 1 r 1 . r 1 . . 1
•' ■ ii.1 f 41 1-4 , (letciidant irom luakiiiir nr cdiitiiiiuii'', iU'.„
nuisance, and tlieretorc the comiilainaiit was not ' , „ , 1 41 ° , 1 .1 - .1 J
4-41 , ; ..■ 1 II I I I 41 4 dam, &c., wlierelpv the natural I nw ni tliei
entitled to an iiiiuiiction ; and, Jleld, also, that • 1 j. 1 4 1 ,. 4 • ,3
41 ■ • ■' . ■ 1 I 41 4 miLdit be prevented, iVc, SO as til iiiliDe, Ac.1
_See AUoniei/-(j'<:ii(.riil v. Ki-ili/, 22 Chy. 4JS
178(). "■ J- ■'
(c) Wa-.f llhjhls.
C. being seized in fee of certain huuls on l,od
.,, , gri-^t aiiil saJ
mills on the east bank of the river; ami „ii tlj
west bank a wonllen mill nr factm-y, .situate .sd
distance further (hnvii the sticaiii ; ami haviij
leased the latter tixjctlur inlli the water ijmvjf
privileges, itc, to certain peismis wlniassignedl
the plaintitf, subseijucntly tlieretiilca.se(Ulic '
and saw-mills to certain jiarties who hail °ia
assigned it to the defendant. At the time the lei
of the woollen mills was iiiaile, a dam hail
erected across the river by ('., aljuut aijiiaitetl
a mile up the stream, for the puiiiuseiii eairy
A railway company being about to construct
their line along a public street, a bill was tileil
by the owner of property in front of wliicli it
would pass, to restrain the construction of the
ro.id, oil the giiiiind, as alleged, that his property
wouhl lie thereby greatly depreciated in value
from divers causes, and rendered greatly less
eligible from the iiiciiincniciice and ilanger oc-
iglit lie prevented, iVc, so as tiuiijii
water power of the wonllen mill, ainl at|
time heretofore, used, itc, and which tlie (
dant moved upon atlidavit to li.ive ili>Mlve
Held, that the court would not ilissuhr tbj
junction, but retain the .•?aiiic until tlii
or a trial had been had at law. ^'ioh'.'' \. j
lami, 1 O. 8. Itil. See S. ('., li Cliy I'M.
Uniler the circumstances set out iu tliil
an injunction was refused restraining the <
dant, who owned a mill on the river <lH
An act of parliament having provided that it from interference with the slides iu tk f
should be lawful for a canal company to cut a diere rapids iiy throwing in luhhish, 4e.
channel across a certain highway, ami to erect, ! nei/-(Jeiieral v. McLtujIiloi, 1 Chy. 34.
as the iiijui'y was not irreparable, the court
VMiuld not, il otherwise in favour of the plain-
till', have granted the application, .l/dj/cc \ . Tin'
LtDidoii and Port Utiiiibji U. 11'. Co., (i I'liy. 170.
\Vherc tlie evidence, as to the injury dope to
a highway in the manner a railway "as c m-
structed, was conflicting, the court refused an
injunction, leaving the parties to their legal
renie<ly, Tlir ^/iiiiiii/niliti/ itf FrcdcrirLiliiirij v.
T/ii' (I rand Truuh Jini/irni/ Co., 'i t'liy. .'"mo.
& ;}
i:69
INJUNCTION.
1770
ill averment that the soil ()f a stream is
■.,,l'iii the crown, ih)ea not import that the
11 has therefore power to interet'ere with the
Ti . iilaintill' anil ilefenihvnt were owners of
i-'m the same stream, tlie ilefemhuit's lieing
for the expense ; and as tlie pLvintifl's Iniihling
eould not be safely proee<lecl with until tlie drain
was stopped np or diverted, an injunetion was
granted, requiring tlie same to be done. Macau-
htij V. linliiftt, la C'hy. r)()5.
llioiithe same stream, tne iieieiidant s oeing i Plaintitl" claimed to be entitled under a lease
ferilown than, and erected before, that of , to certain water rights, but his title was disputed,
h iikiiitirt' I'y the erection of the <lani <'f , and the injury of which he eomphiiiied had been
' f ',|^,feni|ant, it was alleged that plaintiff's , g„ii,g on for three years, and was not any greater
11 iirivilege was affected injurimisly ; and \ at the time the plaintitl' moved tor an interlocu-
ttbdil'h it «as shewn that the plaintiff, in order tory injunction than it had been for three years
1 1,13 iiiiU, was compelled to dam l)ack the ; before. The court refused tlie motion. H'n'li v.
", ter so as *" "^'-'''-'l""' ''""^^ higher up, the Bmiilj'unI, 14 t'liy. S;{.
'' . „f the defendant, the title to which he I ^ lo.i -ii i- i * 4-1 i r
' ' .... I 111 IS44 a mill .site was conveycMl to the defeii-
w.iwrty
ice 01 <.i;n.i"" ■" .. ,
ubcr, crectea gnst an.U,d
ikof the river; ami "U tM
luiU or factory, situate so«(
wu tlie stream ; ali.l liavi,
,,.(/„/■ ii-ilh the water l).n«
rtaiii persons wliu a^igiicdj
.icntly taei-cto lease, til.;,'-
•i-taiu parties wli.. lia.l s
,i.h.lant. At the time Ik
U was ma.le, a .lain lia.l 1)«
ivcrby r.,ab.mta.nuuteH
,n, for the puriiosenl i.mr
■ to the grist luill an. s
iv.is sai.l suU peniattf. an
PC l.,r.h-iviugtheii.aaiin
',0 of ciusuiuuit; u>^ *«f
;,i the sai.l .lam. ,Alt..'t!
into possession m1 tl.e I
,ereete.la new grist milU
Lross the liver l..wLTUuwal
,Uone, ="''l;''n>;n
„nse,iueliee of M Ul j
L,l ot the viver ha.l .u
plainti.f«asuiiahlel.)t
•Vhereupou he Hl^'' »
,oial miui.ctw.i. r.'stra,mni
,aku.g•oro,utimnM^,J|^J
.the^.aturanl"«."'7T
\ \\c aii.l winch tlwff
&a:-ittoh,...Us..^
L.t w.u.l.l u..t .I.S..J-
L the ^ame "''t'' ' \"'^
1 ..f Viw iii'"''''^'
'''Seel''.3^1'y-^^H
,„„,Htai.cessoto,iti..Jiil
.fuse.l restrai..i..g 1'
.; uiiU -m tlie rn.'"^
tiUi the sU.les ">^-
,,.„ving lu V" -1'- ^^'
Ifulit'iiiied after the eommencemeiit of this]
lit 'the court (Ksteii, V. C, diss.) hel.l, tlii't ^
■ ' liiititr was entitled to an injunction against
daiit, with the privilege of keeping the dam
thereon at all times hereafter at its present head
or height, but no higher; and iu 1S4!) the diicii-
dant erected a new il.am lnwer down the stream.
This new dam was of tlie same lieigiit as the ohl
dam ; but the defendant place.l on the dam
mov.ible stop logs to enable him to make use of
, ' ' '1 wo:
ill tiled a bill for an iiijiinction, on the , .i^.^,,. ti,y ,i.i,„_ i^y ..xporimeiits it w.is shewn
1, amongst others, that lie was prevented ; that if these st.ip logs were not reiiDVcd when
t '('lei'ei'iiiant. restraining him frcuii damming
twter back upon the plaintiff '.s property. ,
SrA'-'V. 7i" '•'••■* ^'I'y- 1- I
\ mill owner dammed back a river so as to \
|,„til,mtlie l"tj;;;\t above him, the owiier^ of ; tl^, surplus "water, whieli w.uil.l otherwise tl.)W-
I JRiUll.
;,mimil.hiigamillonliis land, it iiemgd.iuut- , the defeiulant's mill was not working, but in
-jivktiier or not he lia.l a mill site upon his | that case only, the water wouhl be rai.se.l on the
)r,l«rty,an emiuiry was directed on thatp.>int. huids of the plaintiff to the extent of ab.nit one
li(nv.(/'/'('/'f""i '"•'-'''>"• '^"'' land adi.ilf inches. The defeii.lant, however,
Tjie nwiier of land through which a stream I always had removed the logs when his mill was
ktiliiit.ilan.l on which a former jirojirietor had \ not working ;— Held, that under these eireiim-
talaVill-daiii, which forceil back the water ■ stances the plaintilf was not entitle.l to an abso-
Wwertlowc.l aliout two acres of the adjoining ' lute injunction against the use of the stop logs.
iu'.lmKV'iiig it to the c.vtent ot about fl per ; Uraper, V. J., Vanlvouglinet, ('.. an.l Spr.agge,
" Tt trespass against the former own- V. I'., diss. Biamis/i v. Jinrn/f, Iti <_'hy. lilS, in
" appeal.
Certain riparian owners bled a bill again.st
another riparian owner to lestr.iiii him from
maintaining ailam. < )ther persons weie interested
in maintaiiiiiig the dam, whom the pl.iintill's dl.l
not prove any title to iuteifere with ; and one of
the plaintiffs hail sol.l a mill site to the ilefend-
ant on verlial representations wliieli implied that
UU til aperpetnal injunction t.i stay further ^ hu was to have tlie beiielitof the dam. 'i'lie court
Itoyisj. W'rhjlit v. Tiinici; 10 fhy. <>/. ! hehl, that if the plaintiffs had any claim against
Tsf 'act that a riparian proprietor has recov- ' the defendant, tlie proiier course was to leave
,;il ilaina'es at law estalilisliing his them to their legal reme.ly against him ; and
Itiinffi. lining — » , - . ^, , ■ ,
[oi the mill for the value ot tlie land so dam-
|K.i ill which he established his legal right,
li'nowaiiiilic.l f.ir a perpetual injunction;—
Bi, per curiam, [Hstcn, V.C., diss.] that the
aiammiiit of .laniage occasioned Avas not a
li;iditri'as.in for withh.ihling the aid of this
■mrt. an.l that the plaintiff, having established
Ickar riiiht both at law and in this court, was
Iftl iinmiii;- ^ . I , ■- ^
1 iiiht, .Iocs not necessarily entitle liim to .
neti.ui. Tlie exercise of this jurisilieti.in ^
terrtimiary, depending very mueh on the |
itty ami irreparable nature of the injury eom-
' III, au.l, when no mala ti.les exists, on
iUatice (if inconvenience. Where, there- :
le, s r.iihvay company had constructeil tanks, 1
Awere tlilfd fr. mi a stream running through
iiflmitiir.'f land, f.ir the use ot their locomo-
imil"iiig which they .li.l not abstract more
iMIth.ir l-IOOth part of tlu; water in the ^
ai. the curt refuse.l to restrain the company '
niisiiigthfwater of the stream, and dismissed
lUlfiWf.irthat jmrpose with costs; notwith- ;
►iiii^that the plaintilf had, for the same act,
KWci a veriUct at law with Is. damages.
iu„y.\\,ril„nt It. W. Co., 10 Chy. -J.")!*.
|li!it!i.laiithivil built a drain from his premises
lot lit which the iilaintiif became lessee.
Steiriius .)f huihliug on this lot, he reiiues-
wiilaiit t.i st.ip up or remove this drain,
fckilefeu.lant at tirst refused, and afterw.irds
y.'..
/(/('/
It was alleged by de eiidant /„,^,/ ,, ^,^ -_-,.
verting the ilraiii would have , •'
the bill was diinissed with coses.
Foiyii , 18 C'hy. oTO.
Sec McXnh v. Tit>//<n; :)i Q. 1',. .-)'_>4, p. 17.V_' ;
Briir.slrr v. Cunndu ('oiiip<nij, 4 Chy. 44.'), p.
17o4.
4. Jit iiKirul mill .>■((/(• (;/' C/'i<^"' l-t.
This court will nr)t grant an injunction at the
suit of a mortgagee of chattels, against a jmlg-
ment creditor of the mortgagor, to prevent a
sale, the rule being universal that the court will
protect the speeilie posse.s.sioii of ehattels mily in
case they are of peculiar value. (li:ilih.-{ v. Mur-
iel ft ,ii., 1 o. «. 32:}.
Although tlie eonrt lia.l refuse.l an ex parte
injunction to restrain the removal of chattels
elaimeil by phiintiff, ami directed notice of motion
to be given, an interim injunetion was snlwe-
(piently granted, on an atliilavit that defemlants
were removing the property, notwithstanding
the notice iia.l been serve.l. W'lliDul v. Mait-
Ktt.1, t.l ill).
ee.ist iif .liverting
iiuly: -Held, that the phiintiff was not ' The plaintiff eontraeted with two of the dc-
1 to (iivert the drain, tuul sue defendant 1 fendaiits fur che uianufaeturo by them of oOOO-
t
'i'vK's
1771
INJUNCTION.
1772
saw-log3, to be delivered at the mouth of the j ment at law having hecii olitaincd a.n'
rivor Trent, to be paid partly by instalments | his interest in the ])artii(.i-.slMii assut." • i'
diirinL,' the work, an(l the residue on delivery at I for a nominal consideration to C. wlm I ^'^ *'•
the jilaee designated; and at the same time or j of the insolvency proceedings. '('. liavi' V'"'''^^^
immediately after it was verbally arrange<l that j fered with the partnership goods so as ."K'"'!^''
the loi's, as manufactured, should be marked i tne plaintiffs from performing the chitie" f"t7
■with plaintitr'a initials, and delivered to liim as office, an injunction was grnntcd tcirc^t ' ' ""
a security for his advances, without prejudice to i ther interference. W'il^iu v. Cnrlni \\ rn". '(".1"
the agreement for their being conveyed to the
river. 'I'he stipulated advances were made, and
the logs as manufactured were so marked, but '
not otlicrwisc <lL!iveredto plaintiff ; — Held, that j
the manufactni'ers could not afterwards dispose i
<pf tlicse logs to the prejudice of the plaintiff ; and |
liaving attempted to do so, to a third person for \
value, but who had notice of plaintiff's claim, !
an injunction was granted to prevent their re- 1
moval by such person. Fuller v. Uklinnjud, 2
Chy. 24.
^Vhen a warehouseman liail delivered ware-
honse or transfer receipts to a party for one
thousand barrels of Hour, and afterwards de-
Uvered over some ])ortion thereof, at the instance
of the iiartv who had left it in his oistody, on 1 V^"'
iiv.
A bill was filed against the Attnn,,vM;e,a.nl
and A., the supenntendent of 'iTtiiin sli,l .. i
longing to the crown, wlio was also coilfctm- !f
the rates thereat, alleging that lie ha,l .,i/,.
certain saw logs of the plaiutilfs, ai„l ^as al,/ ,
to sell them on the false pretence tliat tiio u
thereon had not been paid. Tlic bill n,..,v„i \
an injunction to restrain the sale. A duaunul
to the bill, on the ground that buiiii,' tliea-t-nt,'
the crown he was exempt fi-om licr-soual lialij,,!
The demurrer was overruled, with cdst
V. llatiiuii, 12 Chy. 228.
liahi
A mortgage having bciii
which wa.. a steam saw mi"
■reateil oi
'11 land i,Qi
. theiunrtgayurM-.i^l
iied troiii nmiovm- the iiia.dunm-
the uiiderstandiiiL! that the (luantity so delivered I ,•,, ° ,.,„;,. „ ,,.,,• - . •, ,.
___j. ., .,, , ..° , lA. ii. .. ii ^ ,_ I still remain a sulticient .securitv, f
out should be made up by other Hour to be
brought to his warehouse, and it ajipeared that
such a course of dealing was in accordance with
the usage of his trade, the court refused an in-
junction to restrain the delivery of Hour subse-
(juently bnmght by the same party to the ware-
Inuise, although such latter ilour had been as-
signeil bona fide to the plaintiff, who had made
advances thereon after it was stored ; and
although such Hour had not been manufactured
at the time of giving the warehouse receipts.
Wilnwt v. Maitliiiiil, 3 (.'hy. 107-
The court will restrain a vendor from selling
leaseiiohl property previously contracted to be
sidd, if the vendee has not been negligent in
carrying out his part of the agreement. JIcLcan
V. Cooit!', 3 (-'hy. 112.
The court will restrain the attaching creditors
of an absconding ilefeiidant from selling timber
improperlycut upon land mortgaged bydefeiulant
to plaintill". Tliunqisini v. Crocker, 3 Chy. 6.53.
mgh it was alleged tliat the proptTty w,„ild|
I'l' .-^iicli riiiiQ.
val woulil have changed the
cliariietur (if thel
premises. Oonlon v. Jolm-flon, 14 Chy. 40'.'
If the court can trace money or propcTtv, li„\rj
ever obtained from the true owiiur, int',i anJ
other shape, it will intervene to sfciuv it fdr'thd
true owner, l>y lioldiiig it to l)e his in cMiuityJ
or by giving him a lien on it. Accordingly when
money was stolen tlie owner was lielil entitle!
to a leasehold, furniture, ami other chattels, iiuri
chased with the stolen money, ami an injiiiirtioj
was granted to restrain liartiiig tlicrewith nnti
the hearing. Tin Mcrclmnts I-}n„;:ii f„
Mortim, 15 Chy. 274.
AVhere a robbery has been CDniniitttd in (
foreign country, but no trial had taken {ha
and the numey st(den had liecu invested in tij
purchase of property in this country, the cm
granted an injunction to restrain the selliiii;
incuinljeriii'' thereof. //;.
A mortgagee tiled his bill for foreclosure ;
to restrain the veiulec of the iiio;tf,„jj..r fnimi
Saw-logs cannot be intended prima facie to be ' moving a building. The Imildiii;,' havin;: k
of " peculiar value," with(uit any evidence that actually remove''., the court
they are so. But tliey are more likely to be of
])eeuliar value than ihost other descriptions of
chattels, and specific relief may be given with difficulty in restoring it, an iinpiiry was ihreci
t thought it ajiroj
case for a mandatory iiijuncti<in, Init as it 1
been removed piecemea), and there inij;lit 1
respect to them in more ins|-ni"""j «^han almost
aiij- other sort of chattel property. The relief
however must be applied for promptly. Flint v.
Curliji, 4 Cliy. 45.
()u an agreement for the sale of a steamboat,
the vendor delivered possession to the vendee,
anil coven.anted to transfer the vessel witii her
machinery and furniture to the purchaser abso-
lutely, upon payment of the balance of luirehase
money by instalments ; and on default in pay-
ment of any portion the vendor should be at
to ascertain the value thereof, as sufficient I
the jr.ocice of the case. J/< (/'/•< v. UmiikA
Chy. ()1().
Several persons united in puiclia.sirg a in
ing press and material for the estalilishnieiito
newspaper to ailvocate certain views, aiiilagn
M'ith a printer that he slmuld establish it I
should have a legal transfer of the iirniiertyi
chased on paying to the several parties tlu'sa
they had contriliuted. ThisagruLUient wasad
on, and the printer paid some of the cdutnliiil
liberty to resume jiossession of the vessel, with i accordingly. One of the parties, whn elai
her machinery and furniture. The court re-
strained the purchaser from removing the
machinery from the vessel, so long as any part
■of the money remained unpaid. Laiojlttoit v.
Thorn jinon, 7 Chy. 30.
V. and D., traders, made an assignment to
plaintiffs on the Uth of January, 18()5, as insol-
vanta, in pursuance of the Act of 1864. A judg-
that he had not been paid, took jiossessiiiunfl
press .and material by a writ of reijlevin:— Hi
that the primter was entitled tii rehef in ci|ir
and the replevin suit was stayed (in sniil
being given. Dewhurnf v. MrVnjiiihi, 17 t'liy.l
Where the court has possessidu of a niatti
which real estate is concerned, it will, if clu
property form part of the auhjcct matter ial
(il)ta'mw\ ayfiinst V.,
rslnp assets Wiis suM
to C, wlinhiiil uiitiue
igs. C. li;\viiig iutev-
I gDciils an iis tu liiuikr
liny tliu ilutius of tlioir
;rauttMl til restrain l\ir-
'i V. r'oi-//i/, UCliy.'J'J.
; the Attnvucy-( ieiitral '
lit I if i-'ertaiu sliilos lie-
11) was also ciilleijtiir of
llg tliat lie hail seizi'il
aintill's, ainl was alniut ■
^irutcuee that llie tulla I
ill. The hill prayeil fur 1
1 the sale. A. ileiuurveil |
il that heiug the agent II
t tniiii personal liahility.
ruk'il, with eiists. linbr]
lit'eu -reateil on laml iml
,- mi", the inortgagor wasj
viiv the luaehinevy,, al-i
that the prii\ierty wouldl
t sueurity, for sueh runo-r
I'ud the eharaeter nl tlie|
JoluiMon, 1-t Chy. m
X nioucy or property, Imwl
the triie owner, into anrf
terveiie to seeure it fur tlid
iir it to he his in eiiuity|
■n (111 it. Aeeorilingly when
le owiiev was hehl eutitlei
urc, ami other ehattels, i'Ur|
,■11 money, anil an injun. tioij
rain parting therewith uuti
has heen enminitteil in
it no trial hail taken jilai
liad heen investeil ni tl
V in this eimntry, the o
lou to restrain the seUmg
his hill f'T fi'veeliisure
ee of the m..i-t^.>, .i-.»r..m
Xhe hnihling having
,hc court thought It a lOT
i-Y iniunetion, hut as 1
emeal, ami there might
i.rit, animinirywasiUrccI
lue thereof, as suthc.en I
case. .V.;/"^'V. *"""',]
1h3
INJUNCTION.
1774
,.j.„„,„7A-, 22Chy. 178.
See '.''((•/.-//'/i'c V. Gore Bind; 1.3 Cliy. 1S7, p,
reO; l/""^"^'- -Vo)-/'i,s, 18 Cliy. 300, p. 1770.
Inj'nnijement of Trcuk Jfarki, <0c.
by
elicf in c'l"
deal with that .also hy iujuiictiou for the on liearing that the plaintiffs eoinplaineil of the
f"^' u of preserving the aauie in medio, with- lal»:l, ami that after suit he infoiineil the ])1 liii-
'!tr:erence to the rule as to the eiuirt not in- tills' solieitors of tliis iliseniitinuance, diselaimeil
"i ri'ni; with chattels unless they are of special all right of using tlie lalu'l, and was ready to
K jif form tiiu subject of a trust. I'eiiiintn . account for the ))rotits he had made, and to pay
^ ^' ■" -^■> '^"■" I"'' j costs of suit. Tile solicitiirs declined to discon-
tinue the suit, and defendant having put in his
, answer, the plaintitl's hrought the cause on for
hearing upon hill and answer. Defendant not
flispnting that his lal)el was an imitation of the
plaintitl's', or that he was aware of tile plaintitl's'
property in their lalicl, an injunction was granteil,
r 1 4.„ „„n +1.,,.., ,„ *„p ., , „„,.„ ' '"'"I defendant ordered to pay the costs of suit.
( „,rtv nrofessed to sell the secret ot a prci)a- ' ,, , ,, , <- ,,i -n
jjij.illed "Jones s latent Hour, and hecame , -^ ' ■'
; 1 nut to disclose the secret to any other j Hiram I'iper and \oah Piper carried on hnsi-
I Nil ill Canada, nor make use of it himself, ness under the iiiiine of llirain I'iper & Brother.
I' pt at the instance and for the benetit of his They afterwards dissolved partnership, and each
«!ee. Notwithstanding, he afterwards com- carried on like business in his own name, Sub-
'l jeUiiig a similar article, done np in bags, sei|Uently Hiram assigned his business to the
, jjj,,,, n goiienil resemblance to those of his plaintili', with authority to carry it on in Hiram's
wlws, although differing in some minute par- name, and then two sons of >.'oah I'iper carried
ii-lars, aiul led parties purchasing it to believe , on a similar business next door, under the firm
Ajtit was the same article. The court granted H. I'iper & Co. An injuiution to restrain the
n injiinction to restrain him from selling the use of that name was refosed. J(7i(».-i v. I'ipei;
gjiejiiviiaration, or any other preparation done , 15 Chy. 581.
i.r m <ueh a manner as to lead the public to , . ,
' ■ that it was the same article, ami from "'^ <^'^'^"- '»«""f^
liuited inpurchasirgair
t!iafortheestahhslina-utO
J.'vte certain views, am agn
fctheshouhlestahhsh-tl
^ transfer of the vnil'tjtyl
, the several parties tlKSj
1 '^lli^al;reelllent».l»'»'l
^iJ^omll^ifthecontviJ^
of the parties, win; ^adl
-n paid, took possuss'i'u lit!
rbva«-nt''tm'«\'"'-™
litiMiitingit to i)e such, although itwasswiu-n
)it!ic vtiiiliir that the preparations were not the
iiiii. WhiiMij V. JliMini', 5 Chy. ()05.
cigar nianntacturer, to distinguish his cigars,
called them "Cable Cigars," and afterwards
adopted a inethod of stamping on each cigar, in
bronze, an elliptic. d tigure, with the name of
" S. Davis," and the word " cable" within the
Hi.; right at common law of an alien friend | same. A rival linn, two years afterwards, adop-
lirtipti't to trade marks, stands on the same ted the same method, using a trade-mark ideu-
snuilastliat of a sul)ject. Da rU v. Kcnmi/;/, t'lc^l with this, except that they substituted
Ilk. 5'.'3- j their initials, "tl'liii'" for the other's name, and
1 Tte'iihintiff had July registered, as his trade Vf '''""^ " TlK f"»' tl'VV",'^ "i?';,''''-"
i lathe „.anufacture°of. soap, the word, ! Jf ,^;;'^«^ l';-"^-«.'l ^''.'^t l'^"-^"."« ''^"^ '"'^'''t these
liierial, " with a star following it. Defendant
Isn.n liis Iwxes the words, "Imperial Hihasic
.\ii injunction was granted restraining
iiMii using the word "Imperial." Crawford
,,)i,i!«!,.i. 13 Chy. 14!).
Tne plaintiff carried on business in the city of
Lbriiig fur his sign a figure of a gilt lion, and
fei.'iting his place of business "The (iohlen
' liefeinlaiit for some years had eoniluete<l
Bknsiiiess, and having commenced on his own
riiiit in the same lino of business, placed in
jM of his shop a figure somewhat similar ti
I tieil hy plaintiff.
igars supposing them to be the cable stamped
cigare : — Held, that the manufacturer of the
cable cigars was entitled to an injunction to re-
strain the other parties from using the trade-
mark which they had so ailopted. Duels v.
Ihi'l, 17 Chy. Gl».
0. Bridcln't of C',iitrtii-t or Corenant.
The owner of several steamers, who carried
on business as a forwarder, sold one of them to
another forwarding firm, and upon the sale cove-
The court restrained nanted that he would not directly or indirectly
Mihut from using as a sign this or any similar have any interest in any vessel navigating the
iittcc v. Allii/, ISOhy. 3(JG. | St. Lawrence lielow Ogdensburgh at any time
thereafter, and also that he would not disintse of
two other steamers then owned by him to any
iFliintili's sohl liipiid medicine in bottles, labell
TPtrry Davis's Vegetable Painkiller. " Defen
us entitled tine
'suit ^va8fvye.l u^ao^
,1,,3 possession of a m»tj,
,8 concerned.. It VN 1.
o£ the subject matter mi
,' ,, ,vj • •! 1 • 1 c 1- • 1 ''erson or iiersons tor the iiuriiiise III SDiiaviKating.
I SI lii'iiiieiitlv sold a similar kind of medicine t .1,1 f i i i ti i i i n
, ,',,1'' , ■.;,>, r, J. TT ij 1 Ine court held the owners bound hv tlie cove-
iktes, ahelled "The (ireat Home Keniedy . , i t i ^i ■ • i ■ ,. i
•,,',■,■,, o Til • i.-rr 1 ■ 1 .,•' nant entered into by the nrii'inal itroprietois, and
iteivs lauikdler. llaintms claimed the; . • , ., r • i- 1.1 • 11
restrained them from navigating the river below
Ogdensburgh with those vessels. Ifuloiiiilt v.
XUoii, 5 Chy. 278, 37.'!.
The plaintiff imrcliaseil defendant's business aa
an exchange broker at Kingston, and the latter
agreeil not to go into the business there again.
The plaintiti" afterwanls s(dd out to one C. and
entered into a like agreement with him : — Held,
that the plaintiff', after this sale, had not such an
interest in the contract with defendant as enti-
tled him to an injunction to restrain defendant
from carr- ing on business at Kingston, and that
his remedy, if any, was !vt law. Jomn v. Wooley,
10 Chy. 10(5.
See, also, Mossop v. Mason, 17 Chy. 360.
'Painkiller'' alone as their trade mark. It
pKiveil that plaintiff's medicine was known
M in the uiarket by the name of " Pain-
befiire defendant's was introduced, and
! trade would not be deceived by defen-
h'ilaliels, although the general public mi^it
I An injniictiou was granted restraining tlie
|ik)' lefindant of the word "Painkiller" iw a
iDurk, with account of i)rofit3 and costs.
^v.A'fiuifi/i/, 13 Chy. 5'i3.
« plaintiffs filed a hill to restrain the use of
lor of any other label resembling it. De-
Btadniitted that the label he had used was
liifriiiKmeiit of plaintiflTs' tra»le mark, but
llliitoeliaddiscontiuaeilits use before suit,
1775
INJUNCTION.
Mir,
7. To CorpomtioiiM,
The town council of one of tbo towns men-
tioned in the sclie(hilu to ]'2 Vict. c. 81, were
about to ojien a street witliont the jicrnnx'tinii
re(iuire(l by tiie Htivtiite of certain jartie^ owning
houses on tiie laml over whieli it would iiass.
Tiie court restriiineil sueli oiiuiiini,' upon ii bill
liled by ii ]i,irty owniiij,' land on tlic hue of the
from liability, the court, as a ciiniliti,,), (,f r
solving tlic injunction, ruoui-;,! a toiinul L'. t
livtion of tile contract tr) be nindi'. ViinK' \
net, C., ilubitantc as t<) aiiy nrres.iity ther,'.',;
T/li' Kilhllilirijll l/lfr A-'<'iilril/iri (;,_ y "yy^^ w' '"]•
I cti>iil!/i/i>/t/i,- Toini (ij\Sf.C(tl/iii,-ii,i„, 10Cliv,;(;i'i'
I An injunction granted to restrniii tru,tns , f
, a university founded by royal cliartii'iviii ,
intended street, although no hcuiHC stood ujion , j,r„foss(>r thereof. llV/i'v. j/„//,;,,s„„ Hci'v'.lj?'
tlic land, and his iirciiii.'ies were not witliin the ' ">">'l
exceiition in tlu^ proviso to .see. (iO of the act. ' A bill was tiled by a rate-jiayiT sfukin- tor
tVilsniiy. Tuinirniiinil'/Por/ /fn/„','>Chy.:\:0. strain school trustees from alLiwii,,, tlar.,)/!
. . ^ 1 1 ^1 •• house to bo used tor religi,, us Servian Imtti',
A conqany iiieori .orated under the provisKuis ),in ,|i,i „„t allege that it was lik.,1 „n 'l i 11
of K; \ let. c. \::i, tor sui.|ilying a city witii gas, the pLiintiff au-'I all other r.ite-iuvir ' 1
will be restrained dr.niig the currency ot a (luar- the three scliool trustee ■ ■ ' "''
ter troni cutting oil the gas irom a liouse, tiic
occupant of wiiich has paid the rent for the jiic-
ce<ling ([iiarter. fiinUh v. '/'//(■ LhuiIdii (Ittt Co.,
7 Chy. 11-2.
, tion bi.'ing grant
22 Vict. c. 122, incorporating the
Transit Conipaiiy, enacted that it
esc,,,sei,tult„tliui.,|,m,,
,, ,.--. =v« asked. lhe,„„rtr,f,„,„ij
the application, on tlie groiiu.ls, first, tint tlJ
.suit w.-is not ju-operly constituted ; an.l it it |,,d|
been, it appearing that a maj.iritv df tlw tnist..',.»f
were in favour of the views of tlie pliiiititf, tla-yl
do that \vlii,.h tlicy
liail tlieniselves the power to i
The act
NortJiwest
should not be lawlul for the company to ]irocecd ! consented to the court doing. (.Iikito, if tin; lij
with their operations uii(h'r tiie act until f.'O.OOO '"I'l ''ccn by tlie plaiiititl on lieliah'ut himsi.]
of the capital stock slK.uld have been subscribed, ; and all other rate-payers, wlietlu-r tiiuii tlio suii
and ten per cent, paid tiiereon. yulisequently, ^ would have been propi^rly coii.stitutcil. /,',,',;,|
and before t.W.OflO had been subscribed, or the , v. T/ir .Sr/i(iiJ Trii--<l<-ct-ii/ '//i, l,tii;i.4iiii,t"niiirh,.
per ccntagc paid thereon, a proposition was made i 1- '^'lij'' lli">-
certain stockholders i
by one ( '. to certain stockholders in tlie enter
prise, thatC. should sell a steam vessel belonging ;
to him to tlio conijiany for t!."),0()0. and that in i
that event he sliould l(ecomo a subsjribcr to tlie
amount of i;.")(),(X)0. ami that the steamer sliould ■
be paid for by t.aking her as a pa3'meiit of ten per
cent, on the t'.")0,0()0, whicli was acceded to, and
the subscription and iiurchase made accordingly, I
in compliance with a resolution of the company :
— Held, that this was an evasion of the statute,
and an injiinction was granted on motion, re-
straining the company from proceeding with any ;
of the ojierations tlureof until the conditions
pointed out by the statute had been complied
with. Ilijirht'wl V. Mi-X(ih, 8 Chy. 47. j
The town of St, Catharines was authorized by
statute to issue <Iebeiitures to t4o,248, for which '
a st)ecial rate was iliiected, the proceeds to form '
a sinking fund. By the same act the town was
pndiibitud from jiassiiigany by-law to create any ,
new debt extending beyond the year in which
such by-law was passeil, until the debt was re- ;
duced to t!2.'),(HK). The special rate authorized
had been duly levied, but it was alleged that it
had l)eeii applieil to the gener.il {.urjioses of the j
town, .Mid the ilebt had not been reduced. 1 >e- |
fondants denied the misapplicati(ui of the fund, i
but did not shew how it had been applied ; and
Where for the inii'iHise of erecting :ur,;irke|
house, a municipal council mouM n;(|iiiretul.wi
rate exceeding the two cents in tlie ilullira
lowed to lie imjiosed by section 2'.'.") nf the Vt i
was held that a rate-'jiayer was eiititk.,1 tij
injunction restraining the eivctimi of thuliiiilj
iiig by the council. \Vil!:\v x. Tlic fWi,„M\
iif Ihi- Villaijf of Cliiitdii 18 C'liy. "wT.
AVhere a bill to restrain the issue of delit-win
by a municipal council, did not allege tluut
warden was individually acting in tlie iimttir,!
taking any step otheruise than a.s tlie otilaT'l
the council and under the by-law, tlie emirt J
demurrer, held, that he was not a lua-;'
party to the suit. Wr.-d (,'inllliiilririi v
21 (iiy. ()8.
^ The court li.as jurisdiction tn re.stmiu a um
cipal cor[)oration from obtaining the vnte.^f i
ratepayers in favour of a by-law, wliieli if jmsI
would bo illegal without" legLslativy ;^:iii.;til
and which sanction .such vote was iiitiii.ld
aid in olitaining in an iiifurm.'d and inuull
rized manner. Where, tlicicfure, the eoiJ
ti(ui of the town of I'ort Hope were about i
initting to the vote of the ratepayers .i byJ
autliori/ing the liarbour connnissimiei-s nf f
town to issue debentures to the am- mat i
with a view of inducing the county council to | to aid in completing a railw.iy, hut wiiieli 'I
remove tin! cminty town to St. Catharines, the
town council of St. Catharines, without any liy-
law, contracted with certain builders to erect a
gaol and court house for the county, at an oiit-
Iiy of i'H,000, to be completeil in two years.
I'poii an application, at the instance of certain
of the holders of said debentures, the court re-
strained the town from jn'oceeding with the
buildings. On appeal to the full court, the in-
tures the corporation had iiut legally the [KI
'of directing to be issued, the eimrt restn'
■ the corpomtion from pnicci'diiig to tiiku
vote. J film V. 77/- I'orjiji'dflok itftlii
Port. IJ<,i„', 22 Chy. 27,1
' The rule of this court is never to interfen
injunction except where it can d(i sousefiiUjI
j efl'octively. 'J he Atturni ij-dmi nd rj- ni
V. The, Iiiternatioital Br'ulji- (,'"., -''J Cliy.
A comp.any was incorpurateil tn eon-ti^
junction w.a.s dissolved, it appearing that the
contract had been cancelled, and no liability
incurred extending beyond the year. On pro- j bridge across the Niagara river, wliiolilin'
<lnction of the contract, it appeared that the ! to Vie " as well for tlie jiassage of persons oi
rescission had been effected by cancelling the gig- j and in carriages, and otlierwiso, as tor tlii
natures to the document, which being objected j sage of railway trains ;'' ami the compiin;
to 08 not legally discharging the corporation I pletetl such bridge su far oti tu permit
It-'" • ■''"fi
Ri"\.;,; -•■>'•*■
HIT
INJUNCTION.
1778
as a, ('(iiiAitiim <if (Us-
be iiiiii\i'. ViiuKn\igli-
any i\i-'.'i;s^'!ty tlier'jior.
,•,(/«•( Cn. V. 'J'/"' .Willil-
('(((/iiiri/i'", l0*-'liy.3;',).
[ til vt'strnin trustoes (it
v(>y;il i-'harUi'vuiimvinm i
-. ;W<i?/-irM»i,m'liy.m
vate-\i:iy<.^v seekiiii; to re-
[iMin aUi'wiiii; tin: s<h>iMH
;i;li"ions st'vvicus, Imt tliel
it°was tiU'il imln'l\;v\i"{|
thcv Mto-inyuvs ; twu o{l
oseoiisuMitLiUuthcuiimK-l
askiMl. 'I'll*-' '"">'t Ti-'f"^>-'i|
e gvdiuul^. tirst, tint tin
CI instituted ; luulintluil
,t a iiiiM"i'ity iif tlie tnbttei
vifws ot t\u: \i\;uutiH'. tliey
,„Nvcrtiii\t'tlwt\v\iK'.itu.;y|
i-t.liiin.i. l,ni^i'ri-,iltiKl'ill
aiiitilV"(iulif\\alt ut lnui'tl^
vVLM-s, \\\\Mkv thi'U till' Mil*
Iv tiiiistitvtteil. /'"'"Ill
(ilicv
mo/
i/i( ('(('•"i'ii/>':i"i'/Mii'!'<it|
ntvimsc i.f erectingaiMrkd
;,mu.-'iUvouMnMimvL'tu.vy|
, two cents ut tli«'\i'll:>t>
:,llivsectum'^'^""".t'V i'
ritc-vaver was entitkil mi
tlie ,.,vctioniiftk-liml
lU'S
U"
Untoii ISrUy. .'•'!
Slyiwthi^tntWuutt.,
thcrwiso than as tli^
luler the 1 ,
that he w"^ ""^
officer ]
law, the cimrt, |
(I'r.^/ (linUhllh:!!-!!
V. ■^iiiia
'\,„mi.litauungtlu;,Y
,„.ofahv-law,vvhKhUV>2
•";.ithontlegislat>vc.«K5
uch vote w;',s nitdi.W
vct'iiro, the f'"M
iliwit r
'"i:>';urtnninn.lau^"-^
I Where, thev
„ ,,f I'ovt Hii^' «■'•'
toteof thevateli.ycr..
harliimv c.mum..i»i">^l,
i. .t,,theanbimitii. ^^
1. ; . .,,..,1 tht; oau-t vwi'
\tion
issneil, tm- - ,
.....ilin>' tn t;iiii-
from V""-*-", ,'',,■(;,,>(.*
7'/,.. r'oni^''"''""''""- ■
,. .(""'■"'/'•'' ".ociiv.
tonningfif i-aihvAy trains aci-dss it. Tiie time
limitt'il fill' *'"-' loiuiiletiiin of tlie structure for
tiieiiassage of ordinary carriages liad not elajisicv!,
theu the liriilge coniiiaiiy leased sucii bridge to a
nilwav cninpany, who were <laily running trains
„j'it ; Imt no coniniencenieiit was made with
tkjt |)orti"ii "^ '■''•^ bridge intended for tiic pur-
J0. ,){ iirilinary trartic, &c. An information
' I'licil seeking to restrain the lessees from
mini! the structure for railway traffic, until it
ns imt ill a condition to be used for ordinary
njsswigcr traffie, but a demurrer thereto for
ijDtdf e'l«ity ^vas allowed. J h.
QuM'o, if even the time allowed for the com-
Idetiiin of the bridge for ordinary traffic had
I L,5t>il, whctlier the court would have interfered
IkiBJiiiK-'tii'i'i t'^"^ work which had been done,
Ikiviiii' heeu done by authority of law, and the
Iitliei iiraved being such as would, in tlie event
Ijltlieiiriier of the emirt being disobeyed, have
l^essitaieil tiie destruction of that IJortiou of
I Itewurk already completed. lb.
8. In raiimi-Kliip Matters.
UTiere .i managing partner was charj^'od, on
iilavit of his co-partner, with excluding the
Ultti from .U'cess to the books and papers of
|fefirtni.rsliip, and with not delivering to him
Ir'Hits, which the jiartnership articles stipii-
lltiri !iii— an injunction ami a receiver were
^ hi awinst such managing partner, though
iij&iavit denied the princii)al charges, but not
BJactorily. Pnntis.-i v. lii-inuitu, 1 Chy. 371.
Iflere it was proved that a jiartner had pur-
jitJ a hiiiise anil a large jiart of the furniture
»fwithiiartucr.ship funds, improperly with-
jumbyliiin fur thr'.t miriiose, and such partner,
J the ilefendant in the cause, had withdrawn
llle [mtnership bonks and pajjers from the
isliitiim nf the court, in breach of an injunc-
lintliat behalf, the court ordered the mother
hiiter of the ilefendant, and whom he left
Ipession, to deliver up to the receiver, al-
iiiy aiipninted, tlie house ;ind all the furniture
Ipirtnersliip iiroperty. .S'. C. II). 484.
|Tle coart will relieve against an award made
to jiartners in ignorance, on tlie part of
kuliitrators and of tlie remaining partners, of
[ottant omissions by the other, the man.aging
ler.in the honks of the lirm, in consequence
tell the award had been too favourable to
jkMiaging i^iartuer. WUsimw RkhunUun, 2
k.44$.
I injunction to restrain proceedings on a
(teat recovered upon such an award was con-
il to the hearing, when the ultimate suceess
1 plaintiiTs at the hearing was not con-
i as clear, the amount of the judgment
•dered into court. lb.
p.
trains ;
l-idge so
far as to V
jetmiti
uplaintiff and defendant entereil into an
Bent, under which the defendant was to
gowls, or guarantee the payment of
iirtichwere to be obtained and sold by
|jliiiitilf for their joint benefit, in certain
tons; and the plaintiff, to secure and in-
y the defendant against all loss in respect
'. executed a confession of judgment, to
il upon only in default of plaintiff meeting
UjJient on audi goods. The plaintiff made
s ad the defendfint entered up judgment
112
and sued out execution. The court ili>^o!vcd an
injunction which had been issued, although upon
the construction of the agreement it was doubt-
ful whether a partnership had not been created
between the parties ; but the ilefendant (the
])laintiff in the execution) having caused certain
goods, provided by himself under the agreement,
to be levied upon, the court directed that tho
amount thereof, at cost and charges, should bo
deducted from the amount of the debt and costs,
or that the injunction should be continued in
respect of that amount. (Hlake, ('., diss., who
thought the injunction should be continued to
the hearing.) Watt v. t'uMa; 4 t'hy. 543.
Wliere a partner in a special contract a])plie3
the funds derived from such contract to other
contracts, not belonging to such sjiccial partner-
.sliij), an injunction will be granted .against him,
until tlie jiartnership be wmuid up, although
such injunction may not have been prayed for in
the original bill. 'J'/iilm<lo v. ScuIkI/, ') L. .J. 117.
-Chy.
A surviving partner, by reason of his liability
to pay the debts due by the partnershi]), is enti-
tled to receive all moneys, and collect all debts
due to, and disjioso of all the effects of, the firm
for that purjiose ; the representatives of the
deceased partner have a right to inspect the
books of the partnership, and to be informed of
the proooedings of the survivor ; and any exclu-
sion of them in these respects will entitle them
to an injunction and receiver. Uitton v. Bhikdy,
(J Chy. 575.
Two persons were in joint possession of and
carried on Im.siiiess as partners on property of
one, when the iwner mortgaged it, giving a
power of distress in case of default, and the
mortgagee distrained on the partnership pro-
perty. On a l)ill by the assignee of the other
partner, it not apiiearing that the latter .assented
! to or had notice of the mortgage, the court
granted an injunction to the hearing. J/<'xo?« v.
I'urb-i; KJChy. SI.
.Several proprietors of salt wells entered into
.an undertaking to sell their products through
trustees, and in no other way ; and a written
agreement to this effect was executed by all the
parties, except one, who was resident in England,
and carried on his business here through an
agent. The business was carried on under the
agreement, notw-ithstandiiig his non-execution ;
and one of the other parties having subsequently
attempted to act in contravention of the agree-
ment, it was — Held, that the delay of the absent
party to sign the contract, was no .answer to a
motion for .an injunction restraining the contra-
vention. T/ifi dutitrio Salt Co. v. Thf Merchants
^altCo., 18 Chy. 551.
See Wihon v. Corbij, 11 Chy. 92, p. 1772.
0. BHiPfm Joint Tenants and Tenants in Common.
Semble, no injunction will be granted between
teiiivnts in common, except in cases of actual de-
struction. But where a tenant in common of one
moiety was trustee of the other under a will,
and was felling timber for his own lienefit in
breach of his trust, he was enjoined from doing
so. C/irUtie v. Saunders, 2 Chy. (i70.
One tenant in common will be restrained at
the suit of a co-tenant from digging earth for
1779
INJUNCTION.
1780
bricka o;i the joint jirnjierty. Estoii, V. C diss.
Doti(/,i!l v. Fuxter, 4 Oiy. 319.
A tiiiiint in coniniDn, upon satisfying the
court tli;it tile (.'iitting of tiiu tinilier hy liis co-
tenant opcrati's to tho ilustrnction of the inliurit-
ance, ix I'lititled to an injunction. I'roudJ'oot v.
Bush, 7 C'hy. 518.
Although the general rule is that the mere fact
of one tenant in cmnnion holding possession of
the entire estate will not render him liable to a
co-tenant, who niiglit himself enter and enjoy
the jxiasesKion witli the other, and the court will
not in such a case interfrru witli the dealing of
such co-tenant in leg.ird to the projierty ; still,
where the eo-teniuit in jiosnession was the mother
of the other co-tenants, all of whom ■were in-
fants at the time of her second marriage, the
court, at the inst.iiice of one of the cliildren who
had attained majority, restraineil the husl>and
and wife from welling or disposing of the crops
of the current year or 'Jie jiroceeds thereof, un-
less they undertook to liring into court one-third
of sucli Jiroceeds ; hut refused to interfere with
the possession of the mother and her husliand in
respect of previous years; although as to such
year.s the ujother might have lieen accountable to
ner infant children as trustee for them. Bates v.
Mnrftn, VH'hy. WO.
Although the general principle is that one joint
tenant will nut ho restrained from connnitting
waste at the instance of his co-tenant, the rule is
difTerent where a Itill has been already tiled for
a jiartition of tho estate. Lasscrl v. Sab/enh,
17 Chy. 109.
Where defendants, being part owners of a
schooner and in sole possession, excluded there-
from the plaintilF, who was the other part owner,
and the plaintilt'did not allege that there had been
aiiy dispute as to the employ ment of the vessel,
an injunction to restrain defendants' proceedings
was refused. Balccr \. Cast'i/, 17 t'hy. 193.
The plaintiff and L. were tenants in common
of an oil well. They tilled an oil tank with oil
equal in quantity to '2,400 barrels, of which
1,(500 belonged to the phiintill' and 800 to L.,
and they agreed that the oil was not to be sold
under §5 a barrel ; they were not i)artners. L.,
without authority contracted for the sale of all
the oil in the tank at .^l.'io a barrel : — Held on a
bill against the ])urchaser, that L. had no right
to sell the plaintitl's portion of the oil, and that
the defendant's removal of it would be wrongful ;
but that as the oil was a staple comnu)dity which
had not any peculiar value, and as there was no
fiduciary relation between the plaintifT and h.,
the plaiutifT was not entitled to an injunction ;
and that his only remedy was an action at law.
Mason v. Xorriii, 18 C'hy. 500.
One of two tenants in common of land, leased
part of it as a stone (juarry : — Held, that the
other tenant in common was entitled to an
injunction against further quarrying, and to an
account iigainst the lessee for one moiety of what
had been already quarried. Uoodenow v. Farqu-
har, 19 Chy. 614.
10. Other Cases.
The court will grant an injunction to restrain
a trustee from interfering with the trust estate
where fraud is charged, and by the same order
'■'10)1 V. Khnir, 2 0.
appoint a receiver. ]'•
40. —Chy.
There are many cases in whi.ji the c„„rt wl"
niterfere by injunction to niau,t:,i„ tl.in.s ,'
statu quo pendente lite, not onlv wlarc pl,i, -tar
title t<. relief is nm,uestionc.l, (...t eve wlurei?
.s doubt ul; provided there is a suhst , i
question to be settled
LaiKjhliii, 1 t'hy. 34
- istiiutial
Altnnuy-Oeiieralx, Mc-
aclversely to plainti'll'; iior, on the 'otiiw''ii"i"'''''
will the court, as a general rule,
But the court does not interfere by siitci,-,] in-
junction against a ))!irty in possession
tT lllllKl,
. ■ - . - ■-'• *"' interfere in
favour of a party in possession to r.,vtr:uii ii cas,,.i
tresi)ass. //;.
Pending an apjieal from tlii vwt a iiK.rti-.u'ce
was restrained troui proee<MUiig to a sale (jj the
mortgaged premises iiiiihn- the power of «nle
(.'oiiniii'iriiil IJiiiik v. /itiiiL- of V
Chy. Cliamb. (>4.— I'^steii.
'I'jiif Caniuli, 1
In a suit for the specific performance of an
agreement for tlio sale of laiiils, or to set aM.le a
eoiiveyauee for fraud, the plaiutill' is luit of ni;ht
entitled to an injunction to restr.iiii alieiiali.Mi
unless it is allegeil by the bill and pn,veil that j
the h(dder of the laud threatens ami intends to i
convey the lands. Kerr v. JlillnKii,, 8('liv.2S5.
As a general rule, an assignment for the liene-j
lit of creditors will Ijc taken as a deelar.itidii of|
ins(dvency ami eiiuivaleiit to Ic.nkrupteviii Kiig.j
land. Where, therefore, some of the' lc"at,'e»|
of a testator tiled a bill against iiis executor aiidl
two of the legatees, <-liargiiig ina!aihninistrati.in,|
and alleging that tlic executor, sulise(niently tol
the <leath of the testator, had maile ari assii'D-f
inent for the benefit of his creilitors, and tiiaB
he was insolvent, tho court, upon inotieii Inrani
injunction and receiver before an--wer, umlcTthJ!
cirenmstances, granted an interim injiiiK'tieii and
receiver, notwithstanding the exeeutor deiiia
any maladministration of the estate, ortiiatl
insolvency was the reason '< r his niakiiiL' tii^
assignment of his estate, Ilarrnhl v. WallU.
Chy. 443.
All injunction granted to restrain trustees i
a university f(Uin(led by royal ch;irter ruiaoviii
a professor thereof. ]Vcir v. Mathh.iw, ll
Chy. 383.
A term's notice of intention to proceeil is nol
necessary if the proceedings in the cause ha»j
beensusi)eiided by injunction, or ilel.'iyed hvcoa
sent or at diifendant's request. lUi'm v. Lniijloil
1 L. J. N. 8. 209.— r. C.-tla^arty
The same rule applies wliere on the aiijilicj
tion for the injunction at tlie instance di defa
dant, the plaintitT, during the pcmleney of i
apjilication, is placed under terms not to prui"*
with the action. lb.
11. Practice.
(a) Delay in Application for.
On an application on behalf of the orowii |
a special injunction, it ajipeareil that the i^
and threats complained of (obstructing the sli
of the Chandiere) occurred eight ami
months before the filing of the bill, and the!
tion for the injunction was made twelve moij
after the answer came in :— Held, too
Attorney-General v. McLainjhlin, 1 Chy. 34.
1780
Vi'nion V. A'i;i;iV, 2 0. S,
ises in which thu cmrt will
;i(iii to iniiii.tain tilings in
tf, Udt <mly wlieru plaiiitiiT'g
L'Htiiiiu^d, but uvfu wliiTu it
led thure in a suhstiiutial
I. Altunuy-Oriural \. Mc.
I not iiitrrfuro liy ^\\w'\a\ in-
arty in jMisHi.'Ssi.ni i;laiiiiiiijr
I'; nor, on thu oIIrt limul,
yencnil ndc, so interfere in
ossfssiiiu to restrain a casual
from tins court a niurtgagea
I proceediuj,' to a sale oi the
undtn- the jiower of sale.
. Haul: of Vj.jiri- Cinndii, ]
'^stun.
; specific iierforinance of an
dt of lands, or to set Usiile i
1, the iilaiatiiV is not uf right j
letion to I'lstr.iin alivnatimi, j
hy the liill and proved tliat
ml threatens and inteiiilstoj
Kirr V. Jlilliiinii, 8('hy.28a. j
an assignment fur tlie bene-l
he taken as a deelaratien otl
valent to li:'.nkrnptey in Elig-r
■efore, Some of the legatees!
hill against his exeentnr audi
charging malaihuinistratioD,j
lie executor, suhsei[iie!itly t
'stator, had made an assign<l
,t of his creditors, and thafl
le court, upon motinn fur a
ver l)efore answer, under thd
ted an interim injuuetiun ana
anding the exeoutur deiiia
ion of the "state, or that lli
! reason ' r his uiaking th^
jstate, Hnrnild v. WaU'u, I
lilted to rosti'ain trustees i
d by royal charter reiunvin
if. Wdr V. JLiIIi'muii, 1|
)f intention to proceed is noj
■occedings in the cause han
injunction, or ilelayed I.iycoB
t'srei|uest. Jhihiiv. Laii'jloi
-P. (,'.— Hagarty.
ipplies whore on the apiilioj
ion at the instance of ileffflj
during the pendency uf '
d under terms not to puca
lb.
1. Pniclke.
' in Applicalion for,
II oil behalf of the crown 1
ui, it appeared that the i^
ined of (tibstructingthesiij
occurred eight ami elf'
filing of the hill, ami the
tioii was made twelve mort
came in :— Held, too
. McLawjhlhi, 1 Chy, 34.
irsi
INJUNCTION.
"here partie-s conit 1 • ■ ^^'^^Jy.
-ving to WU.4T h:" t''yr^^^i^^"liof"'^r''''''^^^^':^^^^^^^ ''^ mistake
inunction to re.sti-i „ '•"'"'' W'ili refnr ' '"'.V further s-,1,. „,'''''"'''••'' Jiini \ll,°
.A'thongh idaintiffH I....7 i._
ir an ..-.. .■ ''" "-'Strain
U'W, the court Kra L h" """'•' "ut f , • ^' An ex ..arte fnl '"' ^-""^"»"'>!7.
;- 'V-rth,ni;'CS.;'f ' '"'■' i.-i,y't i^^^fondanJ. V^t^ '''-'^'^0 S"!^';'-
r 1!^. fi'-. tile' .:ri -i^-n, lutereS ! Z^^^<>n «o that ^ ' .I},-""- ^ «£ 'K
'Mil the time "the" .sal,.'
' ■ , "'"- "^^c'l-ff 111 til,. .. , .'""e taken" "- '"''^c'.s.snin of f
;;.** S;k.;»"» ™":ir.!'»^-« iSSK';!,^^
■'■•"""""■■ «"*»'-v «,„.,« :.r,;,::„„. .,
(1>)
0/1 At, /,/„■„/ i„„_
"'■I'''"' '■"•• "...St (t, ,:.:'' l^'-^rte injunction , , ■„ , "' '■ ^'"ff'""n, 4 ('1 ^o'"""°"
wmmmmmm
•* iieru in a fm.,. ,i
'''^-'--i;::;^';;:".-''-' interim i„j,.„,
''•■■':imber.
I * " «;Uich this rule is ;,"""-■'' <J"alli,l. L " . *"" ■""".uit of 'fV • '' "l""' payi,
ivu;'c
■ "" iiearii)!'- /,•
'"""Ij. 350.-V.mk'
^iilUvoii'
iiiiet.
r^i
ITS.T
TNM UNCTION.
1781
All iiijitiictioii Imil bcoii olitiiiiied iigiiiiiMt fi ; tlio Huit fiiil tlio iiliiiiitill'' iniut imv tli
defciicliiut, ami iiftiT tliu tiim; limited for imtting I luicl if it suciujfil, tliu «nUr at ttic ln^ai'' T"'" '
ill his aiiMWiT liad (;xi)ii-t'il, ail (Piiler 1)11) coiifcsHo j villus for iiayniciit of thoiii. '',(,•■,/'/"''• '"^"
was taki'ii out aj^aiiist liiiii. Ho tlii'ii gave A rinoiir, 1 Vhy. 'M. ' "" " '" *'•
iiotico of iiiotiou to dissolve the iiijiiiirtiou :
Jlelil, that the stateineiiti of the hill having lieeii
coiifeSMeil 1)V his allowing the onler plo eolifesso
to stand, iirecluileil him from moving. Maitliy
V. WilliniiiH, 5 L. .1. KiS.Chy.
An ex parte iiijuiit'tion will be dissolved if
Where the result i a niotinn f,,,- ,,11 i|,t .i|
)i-y i.ijunclion dei).n.U.d u,),,,, ^ ,,,H,,ti„„ ,„';•;';•
and not ot hict, and tlie motion w.is nhnnl U
the instaneo of defendant, a-,Miiist whom 'ui ji,
junction had l.eeii or<l,.|ed, the court, on ri'vir!"
ing sueh order, *'■ 1 ■ ■ "^"*
An ex parte lii,|Uiit'tion will he dissolved if ing sueh order, gave the defcinlant tliu cn^t f
material faets lie siijijiresst'd, or misrepivseiited ] the motion as well as of thi' ivhcariii" tT^V.
to the eourt, on moving for it. h'iskm v. HiiIIk r- \ .Ki/iin/Hi.t/it'r < ii. v. Tlif Xarlh Hi si,'',',, m "1 7'
font, 7 L. .). l--'4.- Ciiy. ; Lh- v. M,-/>.w„/,/, 2 Fire ExtiwiiiUlwr Co. -JO ( liv. (i-j.-,. '"'""•"«)
I'liy. .'{'.IS; McMk.^Ii r v. ('(ilhnnn/, ti ( 'hy. 577.
Where an ex ]),ute injiiiation was serveil on
-4tli heci'inher, and the l)ill was not served, uj)
to the l.'Uh of May following, the injuuetion was
dissolved. //< roi) v. .SirisliiT, ]'i I'liy. 438.
tytic ilawlilr V. Iluirl,ii,il, I (». S. KJl, j). 17(18.
(e) /hliiliiijis.
"Where a plaintill' tiled a hill for an injunetion
and jiaynieiit of damages ; and it aiijieared that
the wrongful aet eomiltaiiicMl of had, without his
know k'dge, heeii disi'ontiiiued before tlie suit :
Ifeld, that the eoiir'! hail not jurisdietion to
make a deerec for the damages. Itefendant
having negleeted to inform iihiiiitill' of the dis-
eontinuaiieo, though apjilii'd to respei'ting it, be-
fore suit, the bill was iiisiiiissed without costs,
Brwkiii-jloii v. I'a/iiKi; IHChy. 48.S.
On obtaining an ex parte injuuetion restraining
the sale of ]iidiHit y, the plaiiitill' entered into
the usual unileitaking as to damages, and suli-
senuently dismissed his bill ; whereupon the de-
fendant moved for a refereiiee to the Master to
inquire as to damages siutaiiied by him, when,
111 answer to the apiilieation, it was shewn that, ^ 1.;.., .1 1,, .1 :. i:,v 1
., ,. 1 iji 1 11 ■ 1 ■ I elaimeil hy plamliti, and
suK'e the diMiHssal ot tlie lull, an inereased price i ,„ f ; „ <• |
had already been oli'ered, and tluit it »vas probable
a still greater advance in price would be obtained
on a sale. 'J'ho court, umlcr tlie circumstances,
refused the application, but without costs, and
reserved to tlie dcfL-ndant liberty to renew his
npplieation, on wliich he nIiouIiI be at liberty to
nse depositions aiid allidavits read on the [ires-
ent motion. t'lutliirMdiu v. SmUU, "20 Chy. 474.
Where a plaintilF on obtaining an injunction
enters into the usual uiulertakiiig to aljide by
such order as the court may make as to dam-
ages, it is in the diseretimi of the court to grant
or refuse a reference as to sueh damages where
the injunction is afterwards not continued or is
dissolveil. Where, therefore, a person in the
employment of the owner of a machine for which
a patent had been granted, surreptitiously ob-
tained such a knowledge thereof as enabled him
to constrncta similar machine for the defendant,
the court, although nuable to continue the in-
junction in eonseipieiice of the invalidity of the
Satent, refused the defendant a reference as to
amagcs, he having availed himself of the knowl-
edge which lie knew had been so improperly
obtained, llcusin v. Cupjiin, 21 Chy. 253.
(f) Cods.
Where a motion for an injunction to restrain
a sale under a ti. fa. is refused, the proper course
ia not to give the costs of the application ; as if
A bill had been tiled for an iiijuiictiiin to .,t,iv
an action of ejectment, wliidi action the lilaintilr
successfully defended hetoivany iiijiuutin ,||,i
be obtftiiied ; ho proceeded no' tui ihcr wjtl, ],;.
suit in eiiuity, and the bill was di.smi^seil Mith
costs. It was elaiiiicd tliat the c.i.st.s at l;,w
should beset otf as against the.ie c^^t.s, huttliu
iteferee considered tliat costs at law r<,ii|il im*
be sot oil' against costs in eipiitv, tliat bein,- the
rule 111 Kngland. ^Strong, V. C, alliriiiuii tk
order ot the reteree as to the lir.st pujut, i,,,,!
without expressing any oiiiiiinn as to wlatkr
costs at law could be set oil' against cnst^ j.,
eiiiiity in a proper case, alliniied tiie onlcr„itl,i.
Heferee on this point also, on the: gruiiinl tluit tlio j
lien of the attorney attached, ami was iiaiaiiimiiit
to any right to set otf. 11',/,/, v. Mc.l,ili„r 4!
Chy. Cliainb. (i;}- Taylor, A'.y'ivit'. '
(g) Of/in- (:,m:i.
Injunction being prayed for in flic ir.'.viT fur
process is sullicieiit. tVii/'/v v. Mitun,,'< ''ill
^. l.-Chy.
Although the court had roluscd an ex imru
injunction to restVaiii the removal of in.utd
liructcil llntlrc OQ
)e given ; an interim injmictiMn rj
subseipiently granted on an alliilavit tliiit liiieni
daiits were removing the pnipci'ty, iiuluitli,
standing the notice had been .•jci-vci'l. IIi'mi
v. MaUUiHil, '1 Chy. 5J().
.Since the general orders of IS.Vi it is iKitikc
sary for a jiarty to cstalilisli his legal liglit
an action at law before coiiiiiii,' tu this niiii
/,'a>/,iilii(i\it V. Cuati; ti Chy. lli'J.
Where defendants did not a\iiie:u' tiiiiiii:i i:
of motion for injunction, the cmirt iiiiwtnl
writ to is.suo, although eiiteitaiiiiiig gaiU'l
whether a sutlicient foiimlatiuii for llio iiiti
sitiou of the court had been laid. l),-iihi-.
The Citi/ (if Turuiito, (i Chy. ."il.'J.
An injunction was refused, the ivllegitimi
prayer of the bill having been Iraiiiiil \n
view to relief on other groumls than tlwwui
which the application was I'ouinleil, altiii
the affidavits in supjiort of it would Hainiit
injunction. Ely v. W'ilwii, 7 Cliy. Wi
On a motion for injunction an olijccti'iii
taken that certain necessary parties \\m
before the court ; but couii.'jul apiicariiig I'l'r
absent parties, and coiiseiitiiiy to tlnir
made parties, to bo bound by the luoaii
and treated as if actually defeiulaiits mi "
—Held, that this cured the defect fur t
poses of the motion. Attijrmit-<-li:nti-d'!.\
Municipality of the Vounti) ujUn!/, 7 C'liy
1781
I'M
iiiiitiir'inu
INJUNCTION-.
110 onUir at tliu lam iny jiru
ui tliclii. Cui'fiilhir^ V,
.,f a nidtiun for an iiiti'vliKni.
jiuU'il tiiMiu a (|iii'sti it l;i\v
tlui iiKitinu w.H rchr.inl ;it
:nilaiit, aiiiiiiist whuiii an in-
iriliTt;il, till' ciiiii't, uii ivviTs-
e till! ilulV'iiilaiit thu en»tn iif
IS of tlio rolioariiiu. Tin- Firf,
'illC Xui-lh Wi.slriH {H(il,n,d-)
<>. -JO Chy. (!•.'.').
UIlmI for an iujimctiim tn stay
fut, whiuluK'tiiin lliu jilaiiitiif
imI liotnri^ any iiijuiictiiiiii.uuld
nu'erilfil lui t'lirdiLi' witli his
the liill was iUsiiubsciI with
.itiRMl tliat th'j fusts at l.w
,» against tliusc n^sts, I'litthu
I tiiat iMists at law rrjiilil nut
osts ill eiiuity, that 'ifingtliu
Sti'tiiig, V. ('., allirmuil the
•DO as t'> tliu lir.^t [iiiiiit, ami
i; any oiiiuidii as Id wlitther
d lie sot oil' a;,Mi'i,-it cnsts in
oasu, allirniud tiio onliT nf tlw
intalso, on tin: grouiuUhiit tliu i
y attai'hoil, ami was iiaiaiiiumit j
Qt (ilf. HV/'/j V. McAi-llwr, 4]
-Taylor, Ite/fne.
;) Ulliir Oixr.v.
lu j^iraycil lor in tlio I'lv.yor fori
:nt. Clarke v. Mniuin:^.'! (1.)
joiivt had refused an ox |i;irt(
itVaiii tliu iviuoval (if oii.iitd
iitilV, anil directed iiiitno o|
•un ; an interim iiijuiietiini \\i
nted on an allidavit thiit liuIeU
oving till; iiMiierty, mitwitlj
leu had been served.
hy. oJtJ.
ral onlera of 1S")3 it is iintiitcei
to estahlish his leyal right 1
IV lit-fore eiiiniuL,' to this iniitl
,((/(■, oi'iiy. i;w.
antsdidiuita\iiiearuimii:ui.i
junction, the court ilircotult
though entertaining great .looj
lent foundation lor the inter]
irt had been lai.l. Dfiii.i'-M%
until, () Chy. i)13.
was refused, the alleptiimj
Jill having been fraiiinl wifl
11 other grounds th;ui tlwJeuj
lication was founded, althol
support of it would wamutl
,j V. W'iUoii, 7 Chy. 103.
for injunction an ohjeotiottj
tain necessary parties ffiTeJ
t ; but counsel aiipuanug lutf
and consenting to their I
;od)e bound by the riooeedi
if actually defendants un r
ds cured the defect lorkl
notion. AUomH-Clamt^J
•the C'oioi'i/ 'i/'t'''''i'' ' ^"^
I "80
Where ft bill pravoil sn • V
,111 aj;reenien(, and' f„r .„',";• '"''''^'"''"•'"'w of I ivi , * '"W
/'''•'«•"«■ of ,,1 vonti.mof t,. -^ ""'''"I"-'! (o art , ' . *
.net,,,,, r..,stnu Li, ;" ''; '' ""'t'"" '"ran
well reliel wo„M „„t , ^''^ .ib.senei, of „.h„,„
^Min iiroii,:l,t „„ tli,. „ *: '''-'!', fe'''"'ti'd, and
(WwA«e, Ui Chy. lr,(). ^ '""-"• ^^''■■<f"cott v.
Whereaftei'siTvin")i n r c
S^clitufust '-r*'id«^'Sz sf r r - « ■« ..^
J'lit the .sanio i„ ., , ' ''^^'cwk ants hIi,...) i
''•^l''"■^ to th^JL;',,/?;'':"^'''' -''licioi^t^i'S
Tlio plaintiff lili,, ,.i, ,, ,, . I'";' .*'■*-■ «Hn,o in ':..(';; ^''^''.'''''''t-^ «1 uhl
toning to l,e , ^le ? f •■^^■■""«t -M. and J{ ' h'""'"' *<' t''^' «atisf.,^ ,';'"' ^""'Vi.'nt .state
ims ,■« au,,,„Mt . • ,*" '■'■'•'■■"" iiiort.ro ; ' " '"' "" t'"-- 'lay ai.„ ( 1 i '"' ^■"^''"•-■^•r nanu..l
?^.-"! I!, from ij. . , /::''-tmin M. f,„„ ; '"I; -^-"^ also otlu,. li^';".:';"^f '•■''< the sai.l
cliiini,
BMleV
B.. an iiiinnetion wa. ^w v, ,7'' ^''^- I'''"'"ti/r a ■ i ' '.'"'? '■'^'J""'-''!- T
F>5.-<! li. from rJJ-li::!J:,!::::^--nM, f,,,.,„ ; 1;^"^.;^ -^i- ..the,. H.u:;;ia;:ri;;x'r''V'^'''
Heid,i£;::5'Vi::;n-hSxr?-^^^
|-KH-tyso)e,,.,,,;;;Mh..n.a,n^
«"rerhyi,in,'f„,! ,u,ffi.,*'' ^'-o suit, and ,'';','-' "«/",» a n„is,„:^,. ^ ' ''' '''■^vpair as to
I»>'!|«icliu,,l,.,.t| ,,. ''"'"»««l'>ftl]„| 11 micro ,„ ■ . "'"""■ «"«««r «„,,;,,
1787
INJUNCTION.
cniiimel, *c'., from Imvinj^, nml froiii in iiiiy wftv
iiitcrfi'i'iiiu witli tliiir Imving fivu nocfM* at nil
tiiiii'H til till' li'ioIiH ami iiapcTHiif fliu co-iiartiior-
■hip, ami trmii rtiiinvin^' hikIi liookH frcnii tlio
iiHiial iij.'vi'i' iif liiisiiii'H.s of Haiil I'o-jiartiicrHhip,
anil from ictaiiiin^or kicjjiiij^aiiy or saiil hookN,
&,<:, ill any otliir iiliuc. f'lioii tlio iplaintilT, who
hail lu'eii a iiui'tm r of lU'fi mlant, applying to the
broliicr ami ilrik of ilcfj-mliiiit for ai'i'i'su to the
bookH, aiiil uhirh li nl iiMiiallv liccii kt^pt lockt'd
up in ailcnk in thi' j laiit of I'Iihiiiumh of tiiu oo part-
iitTHhip, where oui'h application wan niaile, hiioIi
. l«rk an.iwereil to the effect, either that lio hail
" instruotionH not to»uffer,"or that he hail " not
inUruotioiis to HullVr" the plaintiff to «i,'e the
hooks, whi'ii at the name tinit, lie was aware that
the hooks ami ]iaperH hail been renioveil from
their ai'inii'tonuil phu'e to ilefemlai.t's private
resiileiiee hy defcinlanti amsinteil hy hid Bftiil
clerk, ami Hiil)Nei|iiiiitly removed hy defemlnnt
to 'roroiito ; - llelil, that tlie clerk was guilty of
a contempt of thii court, and he was ordered to
pay the costs of the motion to commit. I'reiitUn
V. livniniui, 1 Chy. 4'JS, 4!I7.
Qtia'rc, whether a party whoso committal had
l)eeM ordered for lireach of an injunction, and
against whom a seipiestration has lieen granted
for the same contempt, can move against tlie writ
before clearing his contempt. In.
The court refused to commit for breach of an
injunction, where defendant made an allldavitof
compliance with the writ, even though the allid-
avit was eontiadictory to a statement previously
made hy him ; hut dcfeMilant was ordered to pay
tho costs of the motion, as his conduct had
caused it. (.'niniihell \. ti'o)7ii(»/(, 2 Chy. 403.
In 184."), the plaintiff obtained an injunction
restraining defeiid;iiit from continuing any dam
whereby tlie natural tlow of the river, on which
they both luxd mills, should bo interfered with,
ti ''"^ injury of plaintiH"s rights. I'o this bill
no !k..swer was ever tiled, but a motion to dissolve
the injunction was made and refused ; and in the
same year the j)laiiilill" recovered a verdict against
defendant at law, in respect of the same mat-
ters. An arrangement was then made between
them that the dam should remain, and that each
party should have the exclusive use of tho water
for a certain portion of every day, and this was
acted upon for nearly seven years. Defendant
then began to make a limited use of the water
all day, and contended that owing to improve-
ments in the machinery of bis mill, this would
not interfere with plaintiff 's rights. The plain-
tiff denied tlii.s, and moved to commit for con-
tempt: —Held, that the delay wjis no answer to
the motion : that the defendant having aban-
doned the agreement, the plaintiff h.ad a right to
fall back on his injunction : that on this apidica-
tion tho propriety of granting the injunction
originally was not a proper subject of considera-
tion ; and the court being of opinion that the con-
tinuance of defendant's dam was a breach of the
injunction, ordered defendant to stand committed
in two weeks, unless in the meantime he obeyed
the injunction. Gamble \, IJowland, 3 Chy. 281.
Defendant appealed from an order directing his
committal for breach of an injunction, and moved
the court to stay proceedings under the order
pending the appeal, which was refused. Ih.
On a motion to commit for breach of an in-
junction, the affidavits ueed uot state that the
17«8
writ was under tho seal of tho court.
v. Wiillhriihjf, 3 Chy. (■)2H.
Where, after a breach of an iiijiiintiMii, ilff^,,
dant left the jurisdiction, Hubstitiitiuii.il '(.ern.,
of the notice of motion to commit wii* nrijcft'i
to be niadu on his solicitor. Ih.
On application for an attaohiiifliit numut ]ii-
feiidant for disobeying an injuncfini, in .n, .^|,,|, |'
of detinue : Held, tiiat no order imilil |i,> tii;,,!^
without ]ireviiiiis III. ti. c. .\lilliiiii\ /'//;<■ i
J. IS. - t'. L Chanib. - Ilag.irty.
Where the injunction operates Htrictly l,y«,iv
of restraint, the pmiier course is to iiiuvi; tlut
defendant be committed for breach ni tiieinjinir
tion, unless he shew c.iiise at a fuliiii ilivtotl,
contrary ; and in the hitter cise the inntiiinini;!.
lie made on [lersonal service of a iioticn uf iiii,ti,,||
I on defendant. //<.
I Where a party conuuits a breadi of an injiiii,
I tion after service of the order uim.ii his siilii.'it,ir
but before personal service of the iiijiiiirtioniiiii
the party enjoined, the court will luimnit i„r
contempt. A IK t re way, MiiuImih, H I,., I. 74.- ( |jy
A servant who has notice of an iiijmictidiitniv
be committed for breach of it, thipii(,'li IuIkim t
been served With the writ. Ami iilttr Kiivm ■
his master's service he contiiiues Imiiiiil liyj,,
injunction issued while he was a servant against
the master and his servants to restrain wiute,
Uruwn V. Sii'j>', 12 Chy. 2.'i.
A defendant is bound to obey an injimctiiiKji
which he is made aware, before being sipvpl
with it ; but the plaintill' must lint he guiltvof
ilelay in etl'ecting formal service, as tlie rule I'r.r
dispensing with such service iqiplies oiilv until
the plaintiff' has timo to make the aWvice.
Where a breach of an injunction was swurn to
by a single deponent, and was ileiiieil liy ileitn- 1
dant, and there was no corrolinrativo eViileiue,
tho court refused to commit. >Slnrart wRidiwl-
Min, 17 Chy. 150.
After service of an injunction the iilaiiitijj
amended his bill, and added a new lUiHulfnt, f
who was a mere trustee for the plaintii'', with it,
however, altering the frame of the i.ll, "rt!ie|
prayer. Afterwards defendants cnininittni
breach of the injunction, and the iilaiiitiU'ii ■
to commit them : Held, that the aiiKiii
was not a waiver of the iiijuiictimi. J/t/'
v. McKay, 12 Chy. 414.
An injunction while it st.ands slnmW heokviii,-!
and where, after twelve weeks lia.i elaiiseil iriaj
service of it, without the bill being survciliilcfcn-r
dant treated the injunction as gune, the conrtJ
while refusing a motion to cuiiiniit for lia* li oil
it, refused defendant his costs nf v, ~
application. Heron v. SwUhi -
A party disobeying
his costs of resistii'
tempt, although at
waa dissolved upo
improperly. A de.
must ol>ey it as lonj^
' tion waa rtiw
. ruinuiit fnr
.e time the iiijiii-
applic.atioii, asg:
lilt .servel with a > li
• it e\ .1-1. .W/'.mJ
Smith, 1 Chy. Chamb. 21. -Sp u,-f.
Tho defendant, in a suit on tlie c'HiityiiJH
the County Court, had, before being served fij
an injunction restraining the reinnvalnf .ifciijl
ing, removed the same by direetinii oi the cia
inspector as being a nuisance, having ln.ciur«
ted partly ou the public street. ^'u't^vltluM^
of tho cimrt. fiinr-!l
lit an inJMiiitiMii, ilifnii
t,,, oouiiiiit WHS (jriletc'l
or. /'-.
ftttn-'liiii'iit i\ni\in»t \t-
II iujmi''li"'i iiiaiinctiHti
1 111) iiriliTfiiiUil 1"' ni;iil«
Meliiwj V . Ktlii, 7 1..
llaj^arly.
I uiiirati!* HtrictlyliywAV
I- cuurHi.' \x In iiiiiy*; ili.it
I fur liitiaoliui tUriiijr.'i.'.
lUsu at a fuluii i\;iy t" tlic
,tU'r caHo tlu! ui'itimiuiii.t
rvifc of IV Until'*'. Ill' iHiit'.'iii
[lUts a UruacU ni an injuin-
lie onltr u\ioii liii* siiliatMr,
rvu'i'of tlu'luiuUL'tidiiui-n
■liu court will ciiimmt ior
'. .V(i»'.s..«,Hl,.,l.74.-(:hy.
,u,ti.'i'of an injuiiotinniiuy
iu'Uof iN tiiniit;lili^'l'''^i''-
, writ. Ai'.l alti^r >.'jumg
he contiiui.'S \'u\wA liyati
lil,. ho wa« ii sii-vaiit iigaiint
servants to rustrani wask.
)hy. 25.
lund to oIk'V an inimictiMioj
aware. Wi-r. l.;'mg h.tv.
..intitV nuiHt nnt U: miiltyo!
;,i.,„aUervir..',astl,.'r«kl.r
ich service a vvlu'S oak imtil,
time to n.aUe tli. s.mc.
nil ininnotion was sworn t«
„t, auawas.U'm..n'y;Wt«-|
.s ,n. corr..l.oiative evvlence
tconuuit. ,S(-.m.-(v.M«nl-i
If an injunction the plaintil
^,'laa.loaanew.U'le«M
'.t,.efortlu'l.laintii5.witl>'<
;.fran.ooftUc>..ll,.'r.i.»
nk' aeft'uilants o.m.mittM v
"tiou.anathonlamt.tt..-.^
,_ lleM, that til. mM\
lof tlio injuncti.m. J^'^"
4U.
lhileitstan.\ssh.ml(U)enterf;l
Pi:hiin.oiug.en.^H
luiuuclion a8 gmK', tit » 'J
il«Uoc.mimitf«r«.l>J
\on\. .S'"'i'»'i''' '•' •
■, ■ -ion wasraji
..uiiniti'T'""
;a,iilicati(iii. ;'; -
lU, ant 8erv.'.l w'tU .;
|am1^2l. -Si -•-•«■
TNNKKEPER.
17P0
'Mthis. Ml onler wa» tn.iiln liy tho jml^o of tho
rTiiiitv' '"'"'' f'"' ttK'i'i.iiitnitt.ilof the ih'luiiilnnt,
". Without luovin/' to iliinolvo tho injunction
L'lUL'
f 11.V.., ■-, , - I" allowing
T'"',,,'e'il, aiJr'lir.'i'tinj,' ih'femlant'H .liHchart"',
111, oi.urt ili'l ""t K'^''-' '''"' *''" ''"■■''■' "' *^"'
Lli atidii. Murphy \. M,n-rUuH, 14 « 'hy. '-'03.
(»n tl»' '""'>' 'i'*V ''"** '*" injiiiii'tion ri^Mtrniiiin>{
til, iVliiiiK "f thnlicr had liccn Mnrvcd, tho plain-
iiif jii'l tlio jirincijial clclenct.'int in tho civumo
,„,ci.e,l into ft writtou[iiKre. mint, liy which tho
litter ,it{ri'i'il t'> K'^'" "1' I'oHHCMNioii of tho (iro-
BUfs (111 ft particnlar ilay, and to refrain from
nttiiik""' roiiioviin,' any tindmr cut in the moan-
nine; mill tlio idaiiititl' tlierol.y aKrucd "that
I,tlui»»ii' T. Ml 'I" licroliy, ii|ioii tlio almvocon-
Jitiom lii'iiiK comiilifd with, withdraw all suits
nowiifUilii'i,'.' *'■' l>cft:Md;mt .still continued
tiioiitiliiwii and nniovo the tiinher, and a mo.
Ijiii^iiiiiiiadi' to commit him fur hroacli of tho
iDJuiictioa ;- llchl. that tho nuit was still jioinl-
inj, tho acts nj^reod to lio done hy thodefondant,
btiiik'aL'i'iiihtion iireccilfiit to the withdrawal of
Ihetuit. ilulholUiiid V. Dvwnes, 14 Chy. 100.
1,1. Iiilfi'locntori/ IiiJKHCtinit.
The odico of ftu interlocutory injunction is
ifflplyto nstain iiiattei.i in statu iiuo. Where,
Itkm'tiirti, tlic railway track of the Niagara Falls
uvtnsinii
Hridyc h;id hccn declared to ho a
rablic highway, and that an agreement that tho
lime sliiiulil ho used hy one railway exclusively
ni ultra vires the charter of the hridgo com-
iMHV, the K. it N'. li. ^^'' eompany moved to
imtrainthe(J. W. U. W- comjiany, with whom
hilieg.al aj;reemcnt had hcen m.-xde, from pro-
iting the I'l. & N. V. K. \V. company from
ling the laiida of tho H. W. R. \V. company
orler to nhtaiu access to tho hridgo ; and it
ihenii that tiie latter company were not
ivflv interfering to iirevent the apjiroach be-
itaiiK'il, liut wore simply passive, the court,
inttrioc'iitory motion, refused tho injunction,
|ltho\igh of (ipinimi that, at tho hearing, the
|rii«i«hnu!(l he granted. The Erie .t Xkujara
Um\iCitmpanijv. The Ureal IVedteru Uailwai/
fcsipniii/, 21 Uhy. 171.
IXNKKEPER.
I. RiGiiT3 AND Liabilities of.
1. Guests, 1789.
2. iien of, 1790.
3. Other C.ies, 1791.
4. Under the Temperance Act, 1SG4 — See
Tr.Mi'F.KANe'E Act.
|11. DijQr.iLiFir.vnoN as Member.s or Mi'-
XK'iPAL Councils — .S'ee Municipal
CORPORATIOSS.
pI. Reoclatios of Taverns and Shops —
See Tavekns and Shops.
I. RiOnT ASD L1ABILITIE.S OF.
1. Guests.
bre a traveller is shewn to have come to an
[u » piest, and to have stayed there six
), pay.g for his board by the week, two days
ill advance;- Held, that if dismissi'd aliru]itly
without cause, ho has a ii>;ht of action agiinst
the landlord on the common law rcLitionof inn-
keeperaiid guest. 'I'o put an end to this relation,
the traveller must I e shewn to havi' rentid a
'.■ert.niii upuidneiit in the inn as tenant for a cer-
tain term. Whitimj v. Milh, ' (^. B. 4n0.
AVhero tho declaration avi-rs th.it ih'feiiilant
came as a guest and was so received, the iiiteml-
meiit afti^r verdict will he that the rel.ition thus
hegnn continued until it was iiitcrnipti il hy tho
wrongful act of defendant. Jli.
An innkeeper has the sole right to select tha
apartment for a Kiiest, and if he llnd it expe-
dient, to chaiigo it and as.sii;!! him another. Me
cannot he tre:ited as a trespasser for entering to
make tho change. 7>o///(' v. Witlker, 'Jli ^). IV M'i.
A guest who has been received loses tho right
to he entertained if he neglect or refuse to jmy
upon rea,sonalile demand, lli,
The plaintiir arrived in Toronto from [nland,
and di'ovo from the railroad st.ition to the defen-
dant's hotel, having a portmanteau, carpet hag,'
iic, with him. Me asked for a room, saying he
wanted only to change his dre.ss helore going to
ft friend, had his things taken to it, and after oc-
cupying it for an hour went to his friend, with
whom he remained. He wns furnished with a
key for the door hut did imt use it. N'i'xt nmrn-
ing he returned to get his things, hut thi' port-
manteau could not he found. The [ilaintill' said
he intended to return that night, hut ho said
nothing of his intention to defendant; Held,
that tho plaintiir was not there as a guest after
he had dressed and left the inn ; and that de-
feiidant therefore was not liahle as an innkeeper,
tho portmanteau having hcen lost after the plaiii-
tiff left. Qiia're, if deleiidant had been so li;ihle,
whether the plaintill' was not guilty of contriliu-
tory negligence. Lynar v. Alusnoji, 3t>t^.I3. 'SM.
2. Lien (;/'.
Tho plaintifTs owning a line of at.iges, entered
into a special agreement with defeiid.int, an inn-
keeper, for the stabling and feed of tiieir horses.
Some dispute arose as to the defembviit's charges,
and defendant refused to let the plaintills remove
tho horses. The plaiiititls then brought trover :
— Held, that defendant had no right of lieu, as
tho plaintiffs employed defendant as a livery-
stable keeper, and under a special agreement
which gave him no continuing right of jiosscssion.
Held, also, that a conversion wa? sutKciently
proved, Dixon et al. v. Dalbij, 1 1 t^. li. 79.
Defendant kept an inn and livery-st.able. F.,
the plaintitl"8 hired man, boarded there for some
mcmths, and kept there the plaintiff's horses,
with which ho went out to work every morning
on a gravel road, returning at night. Defendant
charged a fixed sum per week for F. 's board and
the horses' keep ; — Held, that defendant had no
lien on the horses for their keep ; for neither
the plaintiff nor F. was a guest, within the com-
mon law meaning of that term ; F. did not live
in the inn, and there was no continuing posses-
sion or right to it. Nealr. v. Crocker, 8 C. P. 224.
In sci. fa., upon a bond to the crown, it
appeared that A., the obliger, had lived at an
hotel with his family for some time, using his
'I
1791
INSURANCE,
1792
own furniture, and that when the landlord ob-
jected to the removal of tlio furniture until pay-
ment of his hill, he had consented that a large
portion of it should remain as security : — Held,
that althougli the landlord could have no lien as
an inn-keeper, A. being in his house as boarder
iipjn a special understanding, yet <hat he was
clearly entitled to it by the agreement with A.,
and that A.'s administrator was justified, there-
fore, in paying him as against the crown. Reijina
V. Askbi, '20 Q. B. (>2(J.
One W. left his liorses at plaintifT's inn, agree-
ing that he sliould retain them as security for
their kee]). He was a teamster, not living at
the plaintifV's, and it appeared tliat ho and the
plaintiti' both used tlie horses as they wished.
W. liad had them away for tliree days, and had
brouglit them back into plaintiff's yard, when
they were seized under a division court execu-
tion agai'ist W. In an action brought by the
plaintitF for this seizure, the jury having found
for the plaintiff, and the (jucstion whether the
goods had before tlie seizure been actually re-
turned into tlie plaintitif's possession not having
been submitted to tliem : — Held, thiit it could
not be assumed that they had found this to have
been the case, and a new trial was granted with-
out costs. Cmhtree v. Griffith, 22 Q. B. flTS.
3. Other Caxen.
The plaintiff lent or hired his horse to S., who
while on a journey, put it up at defendant's inn,
and it was strangled in the stable there, owing,
as the jury found, to the negligence of defendant s
servant in tying it up in the stall : -Held, tliat
the pl.iintitf niiglit maintain an action therefor.
]Vulk,'r V. Sli<iri»; 31 (,). R 340.
An inn-keeper is not a trader within tlie mean-
ing of the Insolvent Act of ISfii). Jliirnutu v.
C'larkno)), 2'J (;. r. 2'Jl.
INNUEXDO.
.S'.'C DF.rAT.IAlION-.
TNQUHST.
SfC COHONKR- KrRE.
INQUISITION.
I. OfCoMMISSIONKUSOK lM)RrErTEDESTATE.S,
1701.
II. Coroners — See Coroner.
III. Forcible Entry — See Criminal Law.
IV. Upon Extents— .S'cc E>:tent.
V. OvERiioi.PiNo Tenants— .S'e(! Landlord
AND Tenant.
VL Of Lunacy— .SVe Ltnatic.
I. Of Commissioners of Forfeited Estates.
Where an inquisition had l)een found against
defendant under the 'A (Jeo. HI. c. 1), tlie court
refuged to set the game aside, on the ground that
the lands vested in the crown l)y jt had Uf
granted by the Mohawk Indians 'to iijft.,i,lant
for 999 years, in trust, for the suiiimrt nfi'
wife (a Mohawk woman) and three eLil.lJ,!'
Jiex V. Phelps, Tay. 47. '*"'
See, also, the cases under " AriAiNitER "
INSANITY,
See Lt'NATic
INSOLVILVCV.
.SVe Bankrittcv and [Nsui,vi:xrv,
INSPECTION.
I. Of Documents—*?. Evidence.
II. Of Flovr—Sw Eloii;.
III. Of Hides and Leatiie'i— .S'ii- Leatiieb.1
IV. Of Pork— .SVf Pork lNsi'E(roii.
A*. Of Schools— ,S'(.'t' Priu.ic Sriioou.
INSURANCE.
I. Fire Insihance.
1. /ii.iurauce ('onijmihi'n.
(a) Oeneralbj, 1793.
(b) A uthiirif;/ iiiiil Jlnlii nfA,j,},is, |;
(c) Fnvi'hin InxunuiCi' Coinp'iidfs-Su
CoHI'nliATloNS.
2. Interim /fir('l//l.i,-^l.i,th'(liiii hejui-'lm
of Pi, lie 11, 17il.").
3. lilskH Inmrnl, 1799.
4. Intirent of liixurcl.
(a) Ileal /'rojinii/, 17!l|l.
(b) Per.iun<il /'ni/irr/i/, j.soi.
5. C'oiuHfioi.i, It^'jnyy ii''itioii^, ('.!v,ij|
meiil, Warniiit;!.
(a) Ueiientlh/, 1804.
(b) Denerifitinti o/' /'.■■^ji'Tl'ior Prf ilni
ISO."..
(c) Slntemiut ui In Votii,; KSIO.
(d) Stiitement <t.< A- Titk ami liii'tti
hraiiax, 1812.
(e) Ati.iiijiiiiifiit, AVu'tinfiDV, or /«'''
hninee, of th^' Suhjicl liism"l,i
of the Polirt/, 1819.
(f) /';•(■(//• anil .'^idi-^riinnil Iik'UMit
1824.
(g) AlterotUin of Prenmes, hcr«i>t\
lli.-<k; Vhtiiiif'ifih'i-iijmliiin, '
(h) Other Ooi'liiiuii.'t, 18.'!S.
6. Notice, Acroiiiil, uiiiU'r)"/iijLofs,
7. Waiver of VomHtiniii.
(a) 4iitoXotice mid /'rm/'ifL''», 1
(b) A^tto Time within irhicli tvSuf,\
(e) Ati to other Iiimirdiice, ISol.
(d) Other Coiiditiom, 1852.
1792
he crown liy it had Wn
wk Itnliaiis tn (leftii.Unt
,t, for the suviinrt nf his
lan) a"il three children.
J.
under " Arr.uNHER."
T,rNATH'.
OLVHNCY.
rCY AND iNsoi.vr.Niy.
1193
INSURANCE.
1794
ITS— .SVc. KviDKNCE.
See Fi.Dfi!.
N'D LKA'niKH -.SVf T.r.\TllEP..|
SVf I'onK IssPF.crou.
1— ^Ve Puiii.ic Si'HooiA
NSURANCH.
UANtI".
(•(' Comixniifn.
eraUij, ITOS.
|(>IU'<lUArlON^.
|'„/ic.v, 1 :".'■").
:i rroprrfj, ITH'.i.
■.,.,/i(i/ Pn>i)fi-l!l, 1801.
/, 'l^(l)•/•(Ul^7•
.ni/'v, 1804.
i^r Coiiililh'ii.^, 18:5''''
to other luMiwif^',^^'^^''^'
8. Ad'ionn on Policies.
(a) Limituthm of Time, 1S56.
(b) /•«»•/;« /o Sue, 1857.
(c) Iti'/nreiiee to Arhilnitioii, 1858.
(d) PhaiUiiij mid Evidence, 1858.
(e) Defence of A mon, 1861.
(0 /?'!//'' '" Uvcover Iniek Preni'mmn,
1862.
(g) Aiiiount Rirnrerahli', 1S()2.
in the charter, the price of the vessel being a.
(lel)t cxiisting previously to the execution of the
mortjiage ; anil, Senihle, that under tlie.so words
it was not, as witli banks, nccos.sary to the vali-
dity of such a Hiortg.'ige that any previous in-
debtedness should exist. WiMcrn Aii. Co. v.
Taijlor, 9 Chy. 471.
It is irregular to file a petition before it is
heard. The proper proceeding, in order to bring
it before the court, is to surve a copy with a
.. , , , , ,. ,. . , notice of a day for heariiii' endorsed; and this
9. lU'jht o and Apidieahun ,.J /".^'"■<""-'' i practice is applicable to petitions under the In-
surance I'oinpanies Act, 'il \ ict. c. 48., 1). lie
Monc!i.-<, 18().3.
-UUjht
10. Iimirfiiire hi/ or for Mortijiuj
of Sidiroijation, 1 8(!4.
11. MntiKil fnniirinire C'liii/iiiiiie.i.
(a) Pri'iiiiinii \o/i'.i oiid A-'<M:'f6iiiciils,
18()5.
(1,) Ot/ier Ctisr.", I8()().
12. MUrelh'neoiin C'dm-ft, ISfiS.
13. I!i;/fi/< of Afor/iimii'i- to /llsiirillire MolU'i/
—Hi-e Moht<:a(ik.
II. Lii'K Assi-KANn;, 1871.
III. Maris F. Insikanck
1. irt.s.f hrfore Invie of PoUrij, 187.1.
2. Ri'iireKcutations, 1873.
3. Scuworthiness, 1874.
4. Ciiri' and S/.'ill ill Xnriijittion, 1875.
.■). Ali"iiiloiuiiiiit niid A'w.<, .1877.
. /...idinn, 1881.
7. Miicclliuwoii.-i ('((.leti, 188.3.
IV. KlilHTS OK FlUNI'II'AL A(i AINST AliEXT FOR
NOT iNSrlUXCi — Sec PuiNCIl'AL AND
A(;knt.
-Chy. ('hand). —
We.itern Inx. Co., (i V. \\. 8(i.
Holniested, lirferre.
The deposit reijuircd to be iiiailu by foreign
fire insurance companies i.s intended for tie
security of Canadian policy liolduis ; and on the
insolvency of any such company, the general
creilitors of the eoiupany are not entitled to
share the deposit with the policy holders. In re
yKliio Ins. Co. of JJiihlin, 17 Chy. IGO.
In case of a deficiency of a.ssets, the costs of
creditors in proving claims are to be .added to
the debts and p.aid i)roportionately, and are not
entitled to be paid in priority to tlui debts. III.
See Calrin v. Prorinciid fiis. Co., 20 C. P. 2G7,
p. 1884.
(b) A idhoritij and Did;/ of Aijent.
Authority to ncce])t note for priinium. .Soo
Johnson V. Provinriid Jim. Co., 2(i C. )'. 11.3, p.
17!)() ; Walkrr v. Prorinci(d liii<. Co., .5 L. J. 1«2,
p. 1707.
I'd bind by interim receipts. See Prnhi/ v.
lieiicon A.^K. Co., 7 Chy. J30, p. 17i*7 ; //^nri/ v.
Aijricidtiinil Miitiiul Ass. Co., II Cliv. 125, p.
1797; Piitter.'ion V. lloi/ol Ins. C,<.. 14 Chy. UiO.
p. 17!I8 ; Jhiieke v. Xiui/nrd l>i<trii:t Mutual
Fire. fii„. Co., 2.3 Chy. 13!t', p. 17!tS.
To receive notice of other insurance. Sec
ffmilrirkson v. Ijiiecii /?;.<. Cm., 31 i). 11. .547, p.
182!); liiUini/lun \. CdiHiditiii .Mnlaid Fire Jim.
(■a,-Q.B.-T. T. 187(i, p. 1831.
I. FiRF. INSITRANCK.
1. Insurance Compiinics.
(a) Oeniridl;/.
[Sir, IS Vifl. c. .JO, D. ; ,"!> Vict, c. Jd, O.] I To assent to assignments. See Ileiidrickson
„,,,,,., i. 1 1- 1 • ]• i • i /i.>\'- i. I V. thiien In.^. Co., 31 Q. H. 547, 1'. 1822.
H'-!;l, th:it the .net abolisluug districts (12 \ ict. ' • c '>i
lt'^,1 iliil nut take aw.ay from <lcfendaiits the 'J"o demand proof of loss. See /•' n(r(7/ v. Lirer-
iMinegiveii to tlu'in by their charter. I/ni/hes v. ' jioo/, Jjondon, and Cloln: Ins. Co., 27 Q. B. 225,
I .V«(«(i/ I'iiv /ii.'i. Co. of the District if Xcwciiistle, i p. 184.5.
IH'.li. 3S7
Rem.uks iiiiuii the iinjiropriety of insur.aiice
Imiwiiics setting up defences of the kind indi-
lateil, inste.iil of any binifi tide reason that may
Inist fur resisting claims made against them.
IWi/v. Wf.4irii his. Co. (Liinitrd), 17 C. P. 5!'7.
|S«. aUii, .S/.ioiHoi( V. J/iudiiiijs Mutual Fire Ins.
K2!ii'. 1'. 380.
.\ii insurance comjiany was, by its charter,
latlinrizeil tu huhl reid estate for the immediate
Kivmuiiiilatifiii of the company, "or such as
liiilliave l)een honA tide mortg.iged to it by way
|i^stairity, or eouveyed to it in satisfaction of
Ma [uevi msly euiitracted in the course of its
IWiigs, iir iwiehiuscd at sales upon judgments
I'liicli shall have been (ditained for such debts ;"
Ittllaving golil and conveyed a vessel, took from
|l«irvimleemiirtgage»on real estate for securing
|»tliiircliase money :— Held, a transaction with-
113
To waive conditions. See I^ninphn v. Wen-
tern A.1S. Co., 13 Q. K 2,37, p. 1850; Johnstone.
V. Xiinjiirit District Mutual Ins. Co., 13 C. P.
331, p. 1853; Scott v. .\ia,/arit District .Vutiud
hi.t. Co., 25 Q. M. 11!», i>. 1S48; Kreutz v.
Xiaijiira District Mutual Firr fns. Co., I(i C. P.
131, p. 1K53 ; liradij v. ]yeslrrn /ns. Co., (limited),
17 C. I". ,5!)7, p. 18,50 ; l.i/ndsai/ w. Xiai/arn Din-
trict Mutual Fire Ins. Co', 2S {}. M. 32(i,' p. 1.S54;
Crauford v. HV.•>^•l•)l Ass. Co., 23 C. p. 31)5, p.
18.54"; .}fasim v. Hartford Fire Ins. Co., 37 Q.
H. 437, p. 18.52.
Kd'ect of a^'ent's signing receipt without ac-
tually receiving the money. See Walker v.
J'rorincial Ins. Co., 8 Chy. 217, p. 1873.
Effect of agent's knowledge of ihe nature of
plaintiff's business. See Daris v. Sc-itlish Pro-
vincial lii.i. Co., 1(> C. P. 17t!, p. 180G ; Crairjord
V. Wislrrn Asa. Co., 23 C. P. 3U5, p. 1854.
■ 1
\' 1
1795
mSURANCE.
Kffect of agent's knowledge and inspection of
the property insured, wliere it has been erro-
neously dcacrilied or valued in the application.
See SliuuHDii V. /[iistiiitjn Miiltinl Firi- Inn. Co.,
25 ('. P. 470, i(. 1808 ;' .S/iinnwn v. Oure DUtrict
MntiKil Fire In:*. ('„., 37 Q. B. 380, p. 1809;
Jirtljord V. .MiifiHil Fin- Inn. Co. of Clinton. —
Q. B. --r.th April, 187(), p. 1812; Slianmm
V. lldstimjs Miitiiiil Fire Juh. Co., 26 C. P. 380,
p. 1808.
Kffeet of iigunt'a knowledge of the state of
plaintift's' title, where it has not been truly
represented. Svu J/n/d-in-tx. /Provincial In.i. Co.,
18 V. P. 74, p. 181.") ; A^hfurd v. Victoria Mutual
^Ai. Co., 20 ('. P. 434', p. 1815: Lnidlaiv v.
Lirirjidol and LumIhh ln.t. Co., 13 Chy. 377, p.
1817.
Etfect of agent's knowledge of other insur-
ances. See Jacoli.t v. L'ljuitalilf hui. Co., 17 Q.
B. .35, p. 1827.
Duty of agent to call attention to previous in-
surance. iSee Tnck-er v. Provincial Im. Co., 7
Chy. 122, p. 1797.
Authority of general agent here of foreign
conipany. .See i'anijjlicll v. Xational Life Ina.
Co., ':AV. p. 133, p. 1872.
2. Interim Ilvctijit.-f — Liahility before Issue of
Policy.
Under section 10 of (J Will. IV. c. 18, a policy
signed by the secretary, but not by the presi-
dent, is invalid. Tlie company could be com-
pelled, however, upon the detect being noticed,
to execute a valid policy of the proper date ; and
their by-law would estop them from objecting
that the policy wa.s not in fact executeil before
the loss. I'lrnj it nl. v. Xiiix-a.ttle District Jlu-
tual Fire In.t. Co., 8 Q. B. 3113.
The declaration stated tliat defendants, in con-
sideration of Jt28 paid to them as the premium
of in.surance of Cl.'ilM) on certain property de-
Bcril)ed in the plaintiff's .ajiplication, promised to
insure him again.st loss by Hre to £1500 until no-
tified to the contrary, .sulijeet to the conditions
of the ])olicy — that is, t!ie policy usually issued
by defendants in like ca.ses ; that the property
was destroyed by tire, and although the plaintiff
had dine all tlinigs necessary on his part, yet
defendants had not paid him the sum insured : —
Held bad, the action for non-payment of the
money not being maintainable without a policy
under defendants' corporate seal. Jones v. Pro-
vincial Ins. Co., IG Q. B. 477.
A receijit in the following form : — " The Times
and Beacon .Vssurance t'onipany Agents' OfHce,
Brantford, 3rd February, 1858. Received from,
&c., the sum of $14, being the premium for an
insurance to the amount of $2,000 on property
described in the order of this date, subject to the
approval of the board at Kingston, the said party
to be considered insured for twenty-one days
from the above date, within which time the de-
termination of the board will be notified. If
approved a policy will be delivered, otherwise
the amount receive<l will be refunded, less the
premium for the time so insured : — Held, not an
alisolute insurance for twenty-one days certain,
but that the company might within that period
reject the risk, and give notice, after which their
1796
liability would cease : Burns, .1., ,11,5 p .
fellow V. Timesunil Beacon Ass.Cu., 17 q jj'n.
For the premium payable on an intprini iusur
ance on a stock of goods instead of a casli
ment, the agent received tlienote (jf tlicinsnV.'l
payable on the Ist of the next iiuinth. [( ^. '
proved that the agent was autliniizuil tn iivi •'
notes for farm risks, for which tlie onmiiaiivhiil
a printed form, and the note in (iikstinn wm
filled in on one of these fdinis. ' Thiro w
nothing to shew that the agent was limitiil univ
to accept cash premiums in tlicsc casus, and tint
in aceei)tiiig the note he had violated ai'iywiiresj
iustrnetions, or exceeded the limits cif liisaiitlinr
ity. He said his taking the n.dtc was a matter
of business between the pl.iintill' ami liimi.if
and that he had no instruetinns fruni tliu cum'.
pany further than that they e.\]ieottMl all pre'
miums to be remitted on the 1st of cacli mui'tli
A nonsuit, therefore, which liad been eiitcrc-lnn
the ground that the premium had not liecn paid
in cash, was set asi<le, and a now tri.al }.'raiitii]
Johnson v. Provincial In.t. Cn., "Jlj C. P. 11,'J
A declaration on an interim receipt for a policy
of insurance set out the reeei|it, siirnod nierdv
by the agent of the company, acknowluilgiiigthe
payment of .§(1.50 as the premium on an mn-
ranee of §((00 on certain property for tliirtvsij
months, subject to the ajipioval of the laa]
oftice, and unless previously (.ancelluil tn !ii;i,l
the company for thirty days, aft.r wliidi it was
to be cancelled and of no eti'ect, anil mi jiili
termination the insured w.as on ilemand turm.ver
back the premium paid, less the piopnrti.in fur
the time insured; the insurance also tu l)e sub.
ject to all the terms and eomlitions of the cim-
pany's policy. It was tlieu averred tliat thi
receipt oper.ated in law and in ennity as a vaKdl
insurance to the extent of )<i\l){), and, unless ii
the meantime cancelled, fur the sjiafi' nf t'airf
ilays, and that while the iiisnianeu wasin fui
force the said property was destroyed liy lire
that the defendants did not at any time, hofoi
the tire or since, deliver to pliintitf a i^liov, 01
refund to him the premium or any part thtru'l',
notify him of the determination of tlie hnaril,
pay him the insurance money; 1 kid, that aji
though under sec. 2 of the .Vlniinistratiim
Justice Act, 1873, an action at law is niiiiitaii
able im an interim receipt, beinL; imielya nmiie]
demand within the meaninij; of that seutimi, ti
the declaration was bad, as shewim,' no eoatrai
or facta from which a eontraet niij^iitlw ialVirei
binding upon this p.artieular eoi']inratiiin, fi
under their act of incorporation they eaii mj]
contract under seal. Held, also, tiiat thed
ration contained a autUcient averment of iierf
anco of conditions precedent, for tlie stiiralatii
as to the approval of the head olHce dii
constitute a condition precedent to tiic iiianraiK
taking effect, but merely enaliled the eumi
to cancel the in.suranee so eti'eeted, ami th(
was a suflicient averment that the plaintilf
no notice of any such c uuellatinn ; ami
conditions of the policy referred to oimliliiDtl
assumed U> be conditions [ireeedeiit. Krlliji
Isolated liisk and Farnnr's Fire Im. Co., % \
P. 299.
A person made a proposal for iiiBi'.raiioe
did not pay the amount of the iireiniuni, mi I
grouml that the agent of the eoniiiaiiy agreed!
take his note for the amount. The losaciecntr
a few days afterwards, and a bill was tiled to I
1*96
Burns, J., diss, r,'„o,(.
ouvl.s.f.('o., 17Q. B,411.
vblo on iiu inVrira insur-
3 instoail nt a cash ^lay
1 thondti' (if the insurtjil,
he next iiiimtli. It was
vas authm-i/i'il tu vtwive
r which tliu oiniipanykvl
lie notu ill imt-'stiiiii was
lusc fiivius. TliiTC was
iiu agi'iit was liraituil only
09 in these eases, an^l tint
,e had viulateil any (.'Xjirosj
ed the limits (it Insautlinr'
iiic the I'.dte was a matter
the plaintilT and liimsi4t,
natruetimis fvdiu tliocimi-
lat they exjieoti-d all jire-
on the 1st (if eaclimmitli.
wliieh had liccn i'liti;rfdnn
)reniiuni had Udt lieen jiaid
e anil a new trial gvantiJ.
j'/„s. o.., liiicr. 113.
\ interim rei'uiiit f(ir a ffilicy
; the reeeilit, si;_nieil merely
197
INSURANCE.
1798
j . j],e contract : — Held, that there was no
tract, iind that the agent was not authorized
?i.:,„I ihe coniDany as alleged. Walker v. The
;oini)any, acV
dill! the '
frill'
I the iiremium ou an iusii-
•tain vi'opevty fdr tlii.'t;-sii
the a\iiiroval of tlie la-il
,,-uviously caueelhMl tn bind
irty days, aftiT wliicli it was
id of no ert'ect, and nn suoh
ired was on demand tn recover
naid, le^w the iir(ii«irti.in iiit
the insurance also to lie sub-
is and eonditidiis (if tlic e"m
'was then averred tliat th»|
1 law and in uiiuity as a valid
Ixtent of ??l)l>0, and, nnless ii
.celled, for the sjiaco (il tkrr
lile the insurance was mm
.nertv was destrdycd liytire
;s di.l not at any time, be'.'ii
Icdiverto plaintilV a l-li'-y «
TemiunioraiiyV'M-ttt'^'''^^"
,letern.inatidndfthel..Mo
•anee money : Held, tli'* ^'
•> of the Aduuuistratiiin
■auaeti(m at law is numtai
receil.t, l'ei"'^l'>"''-'ly«""''!
.meanin-oftliatsectiimth
s bad, as shewing ui. omtrad
ii a contract might lie uiteiw
L n.articular cdrixmatinn, Irt
f iLeorporatidU tUoy o.u .nj
1 Held, alsd, that lie . W*
Isullieieiit averment ufverl.'n
';;eeedeut.f..rthe,t,r.at
[Jt of the head elhce M u
^oni.recedeutt(.tliomsiinm
''° erely cnahlcd the euii. .^
Inrince so elVccted, ami !■
vement that the lilaiutit
sueh eancellatidn ; i> j
hey referred tdconld
Lditions Vvecedeut, A."?|
[Fannn'.^ Fin In^. <■"■< ■*>
. a vr(n"«^^l f'^-- "'''•""'!:,
Imount of the iircmuim, "
r ..fthec,,iiiv:u>y.grejl
K amount, ■nicies'"-"
Ps.'"HlabiU>v« tiled to^
ybind the company as aiu^rea
Xnineial h-^- Co. 5 L. J. 1()2.— Cliy.
The aKe"* "^ '**" insurance company effected
I iiisiiraiice upon wheat in the name of Jiini-
'"i[ ami partner for i".'?000, there beinj; already
insurance with the company ou the mill
i which it w.a.'i stored of .t7")0 ; the rule of
^ ,,„„[iaiiy heiiig, that not more than £3,000
ileiiW lie taken on any one liuildiiig and its
Mitents. The usual proiiosal was transmit-
ud by the agent to the head office on the '23u\,
uid (in the -7th the premises and wheat were
kni«ili "" ■'1'^'^'"" '" ^'''^ meantime having been
t^enhy the company upon the pro]iosal. Such
ijciit, ill making the proposal, had refrained from
toi'ng t'^'' attention of the (Munpany to the
jRvious insurance on the building ; and the then
liecrtt.ary df the company swore that iiad he been
ifureiif it, the second applicatifui would have
fen immediately rejected. After the loss the
»riny paid the £7;">0 (insured on the building),
IliiO ion the wheat), together making the sum
l((730OO allowed by the rules to be on one Imild-
Mid its contents. A bill filed by the agent
his partner tn compel p.ayment of the addi-
b1 £"50 was ilisniissed with costs. Tucker v.
^immllnx. Co., 7 Chy. 122.
A person obtained from the agent of an insu-
iciiiniiany the u.snal interim receijit. After
esniration of the time spt^citied in it, but be-
taiiy jiolicy was completed, the property was
itriiveil hy fire, after which the company
lied to [lay or to issue any p(dicy ; asserting
itthevliad not approved of or accepte<l tlie
The evidence of the agent shewed that
nik had been accepted, and that he had so
tol to the assured. The court, under the cir-
litaiices, (hrected an einiuiry a,s to the amount
n sustained by him, and that the company
ill my it. I'dikii V. Ui'UcoH A-s.t. Co. 7 Chy.
,iL.'J. -213,
^we, whether the court cmild, under such
unistiinces, cdUipel the company to issue a
licy. Ik
in agent employed to receive applications, re-
ps! trom the plaintiff the usual premium, and
to him a receipt therefor, " subject to ap-
nl by the Board of llirectors, money and
to lie returned in case a))plication is rejeet-
It was alleged that this was verbally nn-
;ood between the agent and the assured to
iliiul agreement for the policy and an accept-
o( the risk. The dirc(;tors having refused
feet the proposed insurance, and returned
premium note given to the agent : —Held,
liable to make good a loss, t/iiiri/ v. The
■tUml Miiliitil A.'<M. Co., 11 Ciiy. 123.
bid, also, that the agent's authority did not ex-
dtiithe making of linal agreements for insur-
!, or to the insuring temporarily of property,
ol the classes ape ilied in printed circulars of
ny, iir such as they were accustomed
Inigre. lb.
Lipplicdto nn agent of the Royal Insurance
hpjiiy to effect an insurance, and paid the
mm. The agent gave the usual receipt,
ting a form supplied by the company, and
Wfalared that a policy would be issued by
|wii,Hiy in sixty (lays if approved of by the
jet at Toronto; that otherwise the receipt
woulil lie cancelled and the .amount of unearned
premium refunded ; and that the receipt would
be void should camphene oil be used on the pre-
mises. The agent did not report the transaction
to the comj)any, and after the expiration of sixty
days a tire occurred : — Held, 1, That this receipt
contained a valid contract for hili-rhn insurance.
2. That the company, and not the insured, shonhl
sustain iiny damage occasioned by the .n;,'eiit'8
neglect, and that the coniiiaiiy w,is lialih: for
the loss by the tire. J'dt/i-r.wu v. llnyal In.-'. Co.,
14 Chy. 1G9.
Where the clerk of an insurance company left
a receipt for a renewal preinium dulysignedat the
office of a policy holder, who desired to renew
the insurance, the messenger di elinini,' to receive
the money from the jiersoii in cbar4e ; and it
.appeared that the company li.id in hand mmiey
belonging to the insured : tli.it tli»! receipt was
never demanded back, and that the insured re-
lied on the renewal as having been etl'ected :—
Held, that after a loss it was too late for the
company to set up that the preiiiiiim had not
l)een paid, even though their clerk niidlit not have
been authorized by his instructions to leave the
receipt. — [Spragge, (,",, dubitaiite.] SIdiiit/oit v.
W'e.ttern A.in. Co., 21 t'hy. 57H.
This decree was aHiriiied on appeal, the court
being of o^)inion that the evidence warrantivl the
decree which had been made, .and shewed that
the effect of all that had passed between the
parties was to establish the payment of the
amount of the renewal premium. .S'.t',, 23 Chy. 81 .
The plaintiff applied to the agent of the de-
fendants to effect an insurance on certain build-
ings, x'he agent accepted the risk, and gave to
the plaintiff the usual interim receipt, which
stated "the said party and ]ir(iperty to be con-
si<lered insured until otherwise iiotilied, either
by notice mailed from the head oliice, or by me,
to the insurer's address within one nioiitli from
the date hereof, when, if declined, this receipt
shall become void and be surrendered. N, l>. —
Should applicant not receive a policy in eon-
formity a-ith his aiiplicatioii within twenty days
from the date hereof, he ruist eommuiiieate with
the secretary direct, as after one month from
this date the receiiit becomes void," The agent
(miitted to transmit the application to the com-
pany, and the iilaintitf, not having been notified,
applied personally to the agent, who stated such
an occurrance w^ius not unfre(iiiciit, and by way
of satisfying the plaintiff granted a fresh interim
receipt, repeating this on four several occasions:
— Held (1), that such renewed interim receipts
were valueless, there being, in fact, no new in-
surance effected ; (2) that the neglect of the
agent to do his duty by forwarding the applica-
ti(m to the company, ciuild not ojieratt,' to the
{u'ejudico of the plaintiff ; and (3) that the mere
apse of a month without any notice to the as-
sured did not render the receipt void ; but the
stipulation gave the company a month during
which to consider the .applicatiem, and enaldeil
them to tenninate the risK. v ithiii that pi:riod :
but ill such a case, if the company does not inti-
mate an intention of terminating the risk, then
there is a contract for insurance for the year
b'.ndiiig ou the company, on the same terms and
conditions as the ordinary policies of the coui-
pany. Patterson v. Royal Ins. t'o., 14 Chy. 1(J!),
followed. Hawke v. Ximiara JJitlrkt Mutual
Fire Int. Co., 23 Chy. 139.'
•1799
INSURANCE.
1800;
By a by-law (No. Ifi) of the company, it , not to prevent the plaintiff recovering fm- d,. ]
was declared that alienation by mortgage or j whole loss sustained, like v. Prurinciiil Ii,,,,,-.
otlierwise, or any change in title or ownership i aiiri- Co., 7 C. P. 548.
of i)roperty insivred, would vitiate the policy
unless notice were given, and the consent of the
board obtained and endorsed on the policy, .and
signed by the president and secretary. Held,
that the won! iioliri/ here meant Innurdiici' or
some e(jniv.alcnt, and that the plaintiff, holding ■
sucli interim receipt, was not exonerated from
jiving the notice required, as the consent might
e endorsed on the receipt. ///.
I
The plaintiff averred that at tlictiniPdf efTttt.
ing the policy, ho was interestcil in tliu |,r(,|i,.|!t,!i
insured: that his interest Wiis \\vh\Tv the I,,.,!
as.signed by him to one P.., wliidi iissivmni'iitl
was accepted by defendant.s ; ;iiiil tlmt until tliel
loss H. continued interested, ami the jilaintiii ajj
trustee for him. Defendants did nnt (Icinur Imtl
pleaded, 1. That .at tin; tinif nl' tlii; lns< tln' |,l;,in.|
tiff had no interest ; and. •_'. 'I'li.it liohuc tin iirei
he assigned the policy to 1!. witliuiit liavin.. tlJ
Where it appeared that the interim receipt
■was intended to cover and did cover goods not transfer endorsed, and « itln'iit ilct'ijiiiliiit. , ,,|
included in the jiolicy sul>se(jueiitly issued : — sent. It apjieared that i\w statLimiit
Held, tliat the right' of action on the receipt ' <h'clarati(m was true : that is, tliat tli' ],i:umi|
remained, ami that tiie insured was entitled to had assigned his interest to ii., wliiih ;!>,i™
recover for all his goods. M'///'/ v. Linrjiaul, <l<',, ' mcnt w.as ai)proveil by defemlaiits : ildil, tiii
/«.«. Co., -j;? C'hy. 44'2, in .appeal. ; tlie plaintiff was entitled to suuereil mI, thi
t. ,, ,, ;. 7 ,, ,r r\ Tj iw I ias"e. Park v. J'h<riii.r In.^. Cn.J'.U) ['..
See Ilattrtn v. Bi-iiritn Inn. (D., I(> Q. B. 31f), ■ i ••
p. 18-J."»; //(V/r// V. Anclior ^.s.-i. Co., 18 Q. B. j The plaintiffs, M. & H., wlide in iiartmr>lii[J
43.S, p. l.S.">() ; Foiinh-i/iii-r v. Hartford Fin' /ii.i. j had purch.ased the land, ouwliidi tluyaiuiH;ir|
Co., 15 f. V. 403, p. 183(i ; Jirmr v. Tin (Inn-
District MittiKil Jfx. Co., '.'O V. V. '207, p, IS-.'d;
MiLsim V. Aiiili'i liit>. Co., '23 0. r. 37, p, IS'iC);
J?oiivv. Loidt'i;/ (iiid Liuirashirv Fire fn.i. Co. 12
Chy. 311, p. 1S0.">.
3. 7iVW-.'i JiiKiirril.
Where in a policy hisses by fire .arising from I '"i"' to j(iin in suing on tlie pnliey. Mnim •
riot or civil eoinniotion were exce])ted, and in ; v. V'/.'c Western ,!.«. Co., I'.M,). |{. ,314.
an .'ictioii on the ]ioliey, the declaration nega-
tived only that tlie loss arose from eivil eoui-
motion : Held, declaration bad, on general
demurrer, as the terms riot and civil eoinniotion
were not synonymous. (,'i»ii//in v. Jfomi' Din-
trirt Miitioil Fire Jii-'Oir. re Co., H. T. G Viet.
built the mill in (juestion, wliicli was liiiniiiUinij
one A., who held their ImukI fm- tlu' lialanift
purch.ase money. Before the liiv tiny ilissnjvi
jiartnership l)y a deed, in Avliidi it was a^re<
that M. should wind up tlielmsiniss, ainl.-l,.
hohl "tiie mill property" fur liis uwniiM,
no regular conveyance of it had heiii cxtoiitei
Held, th.at H. had suliicient interest tn (.iiih
1 )eclar,ation on a puliey elleetecl Ijy |il:iiiid
on a house with defendants, alleging that I
on beh.alf of and as trustee fni- (jne II., \.u\\\\^
he h.ad mortgaged the pieniisis and assi.nml
policy. Denuirrer, lieeaiise tlie plaiiitill sIhhs
interest in the premises, :uid having ncUf,
sue .as trustee for aiiotliei- :- Meld, that tlu;(
jections were clearly uiiteiialile. /i'/7/'iiv/.)|
'J'/ie /jirerj)oo/ anil Loiiilun Firr uml l.''i'<
Co., 25 y. B. 400.
Plaintiff' insured with defendants a li"i'.s^
his possessifin, which Ik had luuvliasnl.
the land on which it stood, as |iart nt '
Semble, that in the form .adopted in ordinary
policies, iiijuiics to goods by wet, or in any
manner from the exposure during the confusion
• of the tire Iiefore they can be got to a jilace of
safety, and goods lost or stolen in sueh confusion,
and the destruction, injury or loss, of which the
fire can be said to be the proximate cause, are
within the policy; but, in suing for such loss, < huVwhieh was' afteM- wards fimTid'tiih
the plaint 111 must describe the occasion and ni.an- ' adjoining hit, B, havin- lieei. Imilttlinvm
Q. H. .ll!*. having been burned, it was olijeeteil that, lui»|
P.aperbag-i for Hour not filled burned in a mill, no title to the land, he iiad no insuraMLintii
were. Held not to lie c<ivered by a pidiey upon I'"* -Hehl, otherwi.se, for iinderC. S. I .C -
the flour. Iliitchiwii v. Xiwinro DiMtrirl '.Untiiol » 53, he had a right either to the vahk' ufl
Fire /».s-. Co.-- (J. B.- -T. T., 1870. Not yet improvements or to pureliase at the yaluf "I J
rcportjd.
See Jiillimtton v. Cdiitn/iini Mutmtl Fire Inx
Co.—'-l n. -T. T. 187<i, p. 1831.
4. Jiilere.tt of fn.snre(l.
(a) Real Proper! ji.
Where the pl.aiutiff had contracted to purch.ase \
land. Slerenxoii v. 'I'/n /.niid'ni •'/"' /'"'"'
Fire A.i.t. Co., 2(i (,». Ii. 148.
(i)ua're, whether a coiniiany uith wh'im|
.actual owner of a house, witliout fi.niil m'
misrepresentation, insures it, can set upj
legal title of a stiaugcr to the land mi wluf
stands, !i8 a defence against the cliiiiii
assured. //*.
■ 1 . ^ I 1 1 1 f I 1 ■ - Declaration on a poluv on nlaintitl s iiiH
the nroiicrtv insureil, and had failed m iiayint; , • .,, ,„ ., '. , ; .i i . ti... i.W
'',,•',. ,• '.,•' J.'' in a mill. Plea, that beloie tlie |e>s tin' iis
puiictuallv, but was proceeding in e(|Uitj' to ' '
compel perfonnaiiee by the vendor ; - Held, that
he hail an insurable interest. MilHtjan v. /vyiu'-
talile /n.'<iirinire Co., Hi i), B. 314.
An agreement by which a third party, having
no interest in the freehold, was to carry on the
•saw-mill insured, in partnership with the plain-
tiff, ami to share in the profit and loss :— Held,
had sold and conveyed liis interest tn
without notice to defeinhmts or tlaiv
Beplieatioii, on e(|uitable groiinils, that tli^
veyanee t<i B. was only to seeni'e him a;.'aii^
as surety for the plaiii'tiH', who always o.iit(
in possession, and no loss had aciiiiiil I"
that one V. was entitled to the In'mlit (
plaintiff's eovenaut to insure, ceiitaima
KB
\m\
\0
INSURANCE.
1802:
liutitT recovurinii; fur the |
Bice V. I'ruriiinnl //,<»,•.
,\ that attlu'tiiiifiififltd.
! hiterestiMl in tliuiiniinTtyl
tcrest w;is lu'l'nn/ tlit \»iA
(iiic 1'"., wlikli :vssigimR'iit|
iiilantM ; ami th;it until tlie|
M-i'stoil, anil till' \il;iiiitill I
i.'iiilaiit?< iliil nnt ck'Mi!',r. lint
lu' time of till- InS'^ till' |>l.,llJ
and. -• 'riintliflmu th. i:rai
L>v to r>. witliiiut liiiviii.Mlia
1(1 witlii'Ut ilcfuniliiiit^ oinJ
that till' stati'iiiiut in tlJ
I : that is, tliat tli" yUnWi
Ui'Vcut til H., \\liiili;,>M.il|
l,y a.-fonilants :■ llclil.tiiii
eiititk'il til mu/i'toI "ii th|
.„;.;• iii.< ro.,r,ii>». i'.. no.
& 11., wliilu ill iKivtiiiMiifl
aiul,iiu\\lui.-litluyaiui«;mll
stii'ii, wliit'li vvaslmviHil.tniij
\n-\r hiinil fur tlie li;il:iiia'(
Hufiire' tliu tiiv thfV ili**"lv«
ilcfil, ill " lii''l' it "•''' "p™
111 u^i tlu'hiisiniss, ainW.ii
■oliurly" f"i' his own u.-c.
iiico <iV it hail hcui ixioutei
I suliii'it'iil intivust tn fiialj
»u tlu' iiiilicy. M'lM'H
..(■„., i-,it^. r:!H.
a uiilicv dlVoti'il hy vliiinlj
fi;ii.laiit>,alUi:in-t!Kahoai
15. tnistti- fur lino 1).,1"mH
I the inviiiises ami assigiio'l tl
r, ),oeaiisollK'iilaiiitilislii«-s|
liuises, ami liaving in'ii^'. an
,,„„ther; llolil, that the (
;irly uiiti'iialilo. /.'i'''"'i''M
,/ l„H<l'in l-'irr "lul !.'!■
"«
V.
,1 with ilofemhuitsaliiiUM
lii^i lu hail v'"-^''''**' • ;
I, it stooil. as iiait 1.1 1- •
terwanls fimml tn h>' iil'"ij
'haviuiihcculmilttluMvmJ
,.„skilTul «'iivey. WH
.,1 il\\:isiih,iecti.iltlwt, hlj
, iifhail miiiisaralili'ii't^'f'
n,^., liivumWrt'.S.l.t*
.,l,t either tu tl.evaluofl
■" ,,urehaseattheyaW''t|
(.). IV H.S.
,. a eoiHiiauy with «h''m|
house. «ithimtfu..a"n
insures it, ean set m
;,,,„.,,. tn the laniliiuwljl
Lcc°again«t the ehu.u ofl
hat heti.re the loss the liW
l.veveil his i..tere.sl t-'O^
.Wfenilants or he u '^
liuital.le g.-umK that
"M,ulvtoseeurehimat.M
l,lain■titV,^^l"••^l"■^'^■r;■"B
•„.,losshailaeen.e. toM
eutitleil to the he.ie .t ■
' to iu^iii-^'i ^-»t^""^'^'
time of the hws, ho was interested in the jtro-
..-uc of the proiierty made to him hy the
r t ti hofore the conveyance to B., and tliis pcrty to the amount insured. Defendant plea
I uliiiit'" , ^
is hrought on
""tiff's :'-Hehl, ft good replication, for it ! interested ixs
F. 's 1)ehalf aa well as the i
led that he was not, at the time of the loss,
allt'ired ; — Held, that on tlio.se
I'k •laii iusurahle interest in the plaintiff cog | pleadings it was not admitted that the plaintift,
In' i'a a court of law ; and the unnecessary : at the date of the policy, had in tlie warciumso
itatdiieiit i
,f F.'s interest couhl not affect it. ! the (juantity mentioned in the receipt, and that
_„..-. ., in tlio ahsence of any proof of the extent of lu.i
interest, he would he entitled only to nominal
ilamages. Clark v. Thi- HV-i/'Ch As.^. Co., 25
l,». B. L'O'J.
Plaintiff' ohtainod a w.irehouse receipt fronj
one V. for 2,000 Imslicls of wlieat as in store for
The lliiind lux- ^'»-, -7 Q- U- '"'-*• •'^'it'.
Iiisii Smith V. Provincial Iiix. Co., 18 C. P. 223.
Ouii're, ill s"''!' ^ '^^^^' "* *" ^^^^ eft'ect of 29
IVuto. k »««• 7.
isi'.i''--3
Smithy. Proriiirinl Irnt. Co.,
Atciiantof gli^l'u hinds, under a lease contain- . ,,j,„^ sul.ject to his order, and effected an insur-
.uiiveiiaiit for further renewa, continuing 111 ,.^„^.e ..n it with defendant, as upon so much
lesion alter the death of tlie les.sor and after ^^.|j^,.^^ .n F.'s warehouse : -HeM, that in order
ISa-ti'i"" "f '"" s"i:^''^^'*'-' "■' ivg!ii'i»t the hitter's
lull las 110 insurable interest, tlio snceessiir not
Liii! Wuiid hy the covenant.
KUt'..20C. P. 170.
.Sh((ii: V. J'li'
(h) Piivoiiiil Proiiirtii.
\morti;ag«^;"f goods has an insurable interest,
tJKfl.'hthe mortgagor continues in actual pos-
|^<Hi of them. O'jdiu v. Mutitr(;al In--*. Co., ^
It P. 4117.
The rtiiiissinu of a mortgagor, in etrectiiig an
uioe in tin! iiaine of the mortgagee, to
IftBtbui the ""'"""' "f the mortgage, does not
lit^'iil the iioliey. /''•
to recover upon tlie jmliiy, it was not necessary
to prove that tlie identical wheat insured was
destiiiyi'd ; but that tiie ipiantity claimed for
, must have been in the warehouso under F. 's
control ilnrufj tin' irlidh- jii-riml l)etween thj insur-
ance and the tire. The waroliouseniaii gave three
I receipts : I. On the 24th of .January, as from
, hini.self as owner, (as permitted by 24 Vict. c.
23) for 1,700 bushels; 2. On the' 2r>tli, to the
l>laiiitiff for 2,000 bushels; and, 3. On the
l.'tth of February, to one P. for ;>,000 bushels.
Tlie lirst rceei|)t was transferred by F. to a bank
as security for .^^1,01)0. When P. bouglit from
F. the last mentioned ipiautity, the .Si,Ol)0 was
paid out of the purchase lun'.iey, and thus the
! 1,700 luisliel.-i was rileased. F. had given these
Wlnre the mortgage was
lisrt'agee insured betorc
under seal, and the feciipts fraudulently for neno wheat than ho
lefault : -Held, that really liad ; but the jury fnuud that there were
Ittisnnt entitled to recover on his policy more -."OO bushels in the warehouse at the time of
jtatlkMKiiintappearingonthefaeeof hismort- ; the tire :— Held, that tlic receipt for 1.700 bush-
iKealthetune of insurance, not being aUowed els ii.iihl not stand in the phiintiff's way, the
|n,kksuhsL'iiueiit advances by parol. Hi.
Mirrii'k v. Prtiriiu-inl lux. Co., 14 <i>.
claim on it having been extinguished : and that
. F.'s fraud nil other parties cnuld imt be set u])
WiiKle, that upon the evidence set out in tins \,y .Ivfcndants in answer to plaintilfs claim on
4ic.tlif liloas denying plaintiff s interest in the ^\^^ pulJcv. Hi.
' hmihl have been found in defendants' "
A condition provided that property must be
insured in the inines of the owners. It appeared
that the policy was on grain insured in tlie
name of the plaintill', who had given warehouse
ivieipts for it, endorsed to certain banks. Per
Wilson, .1.- Such banks Mere the owners, by
virtue of these receipts, not the plaintitl", and
t!ie condition was broken. Mrlir'ilo v. Tha
<nirr JJisirlrl Mutual Fin lii.-<. r,,.. .^0 (,). B. 451.
■iti'iir.
\m
J Il,i; iiwuer of a stock of goods etl'ectcd an in-
|inn« tlu.reon, and while the policy was in
lift to>ii;iieil the property insured, and with
lies-sseiit iif the eoiiipany transferred tlie policy
liiisimiK'e, till'. •'. subsei|Uently sold thepm-
Biyt'iM., who, inpayment delivered his pro-
liiviv iiutfs imlorseil by \,., an aecommodation
liir-cr, iinly npoii tiie exju'ess agreement that
•Is shiuilil lie sold iiy -M., and the proceeds
irtoi'in'il iiaid over to L. to retire the notes,
»lth;ittbc iiolicy shouhl be assigned to L. in
Itet t'l Mi'ure himself against the notes and p.iy
■By ^l!rllllls to M.; and tiie policy was so assigned
Iwi tlw iL^seiit of the conipany, who had full
»i»liilge iif all the facts. The interest of M.
kfiie finils and the liability of L. on the notes
A., a wareho'.iscnian, insured wheat with do-
fcmlants and assigned the policy to a bank, to
whom he gave a warehouse receipt, signed by B.,
his clerk, and endiiiseil by hinisell'. In an action
on the policy on behalf of the bank ; -Held, re-
versing the judgment of the < 'onuiion Pleas, 13
<'. P. 102, Spragge, ('., Mowat, V. «'., and A.
Wilson, .J., dis.s., that the bank had no insurable
interest, as B. was not a warehnuseuian within
Mill until the goods were destroyed by the (.'. .S. ('. c. 54, sec. S ; and that the receipt
iKuiiktioii brought in the name of the was not in compliance with 24 ^'ict. c. 23, s. 1,
, the ileelaration alleged the above facts, not being signed Ity the irnriliniini uiau. Tndd v,
that the plaintiff had continued to be and l.iri r/mol auU Lvuiluii O'loln- hi-i. Co., '20 (J. P. 523,
«ii.« interested as trustee for M. ami L. i^— ^ in aiipeal.
rtveitint; the decision of the Oueen's .r i i ^i ^ i. r i ^i
b,i4.,i, R 3ti4, that the declaration shewed i , ""1'^' t'"i*. •-* '"^t-agee of a vessel, Who wa,
p.i ause of acti.m, and that L. had an in- \ •■^•""" "'""'^;1 '" *^ r"'"r>' •■'«tl'e/-»«su''>-'«l. without
L i„t.w,.t ;.. ti, i» n . .• .. 'ri any I'eneral Words, or other indication ot interest
le interest lu the i;oo<ls. Daritg v. I /o' , ■ ■^ " ., i i i i i • r ^ ■ i ^i
' - "- ■ I 111 any other, liiit who had, m fact, insured the
mortgagor's interest also, as disclosed to the
Fiiiiitiffsueilnpon a policy on wheat in a cer- I insurers at the time, could recover the whole
~ wirtliouse, alleging that at the time of . amount so insured on parol evidence of th.at fact.
gtheiioiiey, aucl thence until and at the \ lik/nmf<ion v. Jlome In-i. Co., 21 ('. P. 2!)I.
V !:l
1803
INSURANCE.
mm-
m
^
I'l
A wiiit'lKiiit^oman sold 3,.100 Imahels of wheat,
part of ft laryor quantity lie had in store, and
gavi' tlie iiuri'liJistr a warehouseman's receipt,
under tliu statuti', ackiiowledgin}:; that lie had
recfivcil trotn him tliat quantity of wlieat, to 1)0
(h'livereil pursuant to liis order, to he enih)r9ed
on the receipt. The 3,")0<) liushels were never
Heparateil from tlie otlier wheat of the seller ;—
Hflil, l>y the Court of Ajipeal, Spragge, ("., and
Morrison and (Iwynne, .l.f., iliss., reversing the
judgment lielow, 15 ('hy. ',\'M, ."j.VJ, that the jiur-
chaser had an insurable interest. Jio.r v. I'ruriii-
ddlJius. Vu., IS Chy. 280.
The ])laintitT, on the lOtli Scptoniher, 1874,
insiired witii deUndants on a harn and stable
SKHt, on tlie produce, farming implements, &e.,
from time to time stored therein iiMOO, and on
horses and live stock SM)0. The policy was
a.ssigned liy tiie plaiiitill' alisolutely on the 'JTth
January, LsTo, with defendants' consent, to the
Loan and Ageni'y ('(ini|paiiy, who had a mort-
gage on the land on wliich the h irn and stable
stood foi SKH), liut no 1 laini to the chattels, and
the actual nature of their interest in the jiolicj'
was not nK'utioncd in the assignment, nor noti-
ced to defendants until after the tire, which took
place on the I'Jtli, .!uly, 1.S7.'). A correspondence,
set out in the case, took place between defen-
dants an<l the c(impany, as a residt of which
deftiidants paid to tlie eom|iany the !?!00 insnreil
on tlie buildings. 'I'lie declaration alleged that
the plalntill \\as iiiteiestcil in the properties to
the am ii;nt insured at the time of making the
policy, aiul until ainl at the time of the loss :
that having mortgaged the laud on which said
pro[)crties v.ere situate, to the Loan and .Agency
t'o,, to secure certain money advanced, he with
ilclendants' ccii-eiit assigncil tosaiil company all
his interest in the policy: tliat the property in-
sured was burned, wlicreliy said comjiany bi^came
entiih<l to recover the aniuunt of suiil loss: that
all things happened to entitle them to sue there-
for: that ikleiidants paiil to them the $100 in-
sured on the l)uildings, but no more ; and that
aftcrw.uils the couiiiany assigned to the plaintilf
the ]iolieyaiid all causes of action thereon. I)e-
feiiilants jiU ailed, that the saiil Loan and .Agency
t'o. Wire ihit at the time of the ioss interested in
the chattel propi'i'ty as owners or otherwise : —
Hehl, that the plaintiir could not recover, for the
Loan and .\geuev Co. had not at the time of the
loss any interest in the goods; and that there was
Untiling in the correspondence above mentioned,
or in the dealings between the ditt'erent parties,
stateil in the ease, v liich made it inequitable in
ilelendants to set up this defence, so as to entitle
the plaintill to relief under .S8 Vict. c.Ofi, s. 1, ().
Ihiuinl V. ( 'iiiiiiild Aijritiilluml Ins. Co. — Q. B. —
T. T. 187(1. Not yet reported.
I )efendants also pleailed that the encumbrance
to the Loan and .Agency Co., was created by the
plaintill without theirwritten consentas required
by the policy. It appeareil that F., defendants'
•igent who took the ])laintitf 's application for in-
surance, also obtained the htan for liim : that he
witnessed the assignment of tlie policy to the
mortgagees, .and sent it to defendants' general
agent, who assenteil to it in writing ; and that
alter the fire defendants were told by the com-
pany that they had a claim only to the $100 in-
sured im the buildings, which they sent to them
by letter .-Held, that defendants sending the
money by letter was a written consent to the
encumbrance ; and that their assent to
sigmnent of the [)oliey was eviijcin,; i
assent to some transfer of the iiniiHitv
wouhl be essential to the vali.lity of tlij.
mcnt. lit.
See Cnivfin-if v. .SV. L(itri\,icc Im, C'„
l.V), p. 1877 ; (hvliitnlv. .Ktnn I,,',, r„''
44.5, p. 18SH ; Sni/rlicnl v. /v/h,V„/,/,, i
Co., 8C. P. 4I-), p. 1884; S!„ rl„„„;,„ v
Miituitl liii. I'll., ,'<0 (j>. H. 47'.', p. ISIS-
Siiriiii/.'i limik V. (.'(indila l.i/r ^^,^ (•,. '
rm, p. i87:i
1S04
tilt M.
tli.ir
; «ilir|,
Wsigi,.
''■- /,.,..
.I1.,.:A
I "l'iillll)\
5. CuiKlUhms, Jffpri'.ii;ifoi!on.% Cwici:(iliii.;ii
i\'(trriiiitii. '
[.SVf, voii; .V.) Vh-t. r. ..>,J, O., " ,i„ _.|,,, ,^ ,
cure iinijunn cniiilUiniiii in jmlinis „f ^v,, ;,, ,, [
miri'." Jl l'll(lrt.^ t/iiif frlitiii niiiiHtiuiig i..,„;^'
Khali III' ili'ciiiid jiini uf i nri/ i,,,);,:^ lhfi;','ii,J,
riitiriil_ into or nid mil. Ami (ViO-//',-,,,,,,,,,,,;, J
utlnr iiisiirir ili'.iirc In ruri/ nr nilil tu i •'
(tnij of thi.-'i i-oiiililioii-1, .titrli rflrillt^ll|,|,^, ,(r., „,',j
/»' iliiHiiiil/t iiiilintliil in llic mniiimr liirn-li'l ,„|J
.ihiill tliiii lir ill j'oiri' xo .I'lir ll.^ liiiHii.^Jii.i^
Jilili/i' lii/'iir irhiini a i/iiislli,i, ;.< //nil 'i;-l,iiii„i ,/„, J
to, tlirii .■<hiill III- Ill-Ill III lie Jus) mill rniAiiinihhu.h
I'.riirli'il III/ /III- fiiiiijunij/ ; lln' ili-i-i.^iui, uf ,.ii,rj,,
or jiiiliji- III III- siiliji-i-t It) ri-riiw urujiiii-aliitilu
Miimi- i-j:Ii-iiI ('< (';/ ol/iir (•((.«->■.)
(a) (li-mroll.i.
.Any fraud, eonceahuent, or nii.src]iresoiitatioJ
by a party etl'ecting a pdliry of insiiraiiii. (,t i
matter ni:itcrial to be kiiuwii liy tliu iiisiuvi. «t]
avoid the policv. JlrFn'il v.' .\l„iilri,il l'„«*
/ii.i. Co., -2 g. ];. iVj.
The not conununic.atiiig at the time of tlit- m
posal for an insurance the i'-.wt that tlii-rt' wasa
insurance alri':idy etJ'ectcd witli aiiutlien-.iiii|iiiij|
— Held, not to lie such a wnnigful udik'i'i.hiieil
as to sustain a plea of fraud, avuiilingtJK'iii.licJ
Mclhiitill V. J!i Ill-nil Fin oii'l Life A.i.^ i'n '
V. 308.
Held, that a wiitten iiieiuorainliijii mi tliofai
of a marine policy, provi(iiuj.a:,iiiist liuliilityt.
cei)t for total loss, must prevnil, tliiiii:.'|| suven
printed conditions incousi.^teiit witli it, wtiv lei
in tlie policy : -Held, also, that a iie^'ativi; prL
vision, that the insured siimild not liave a ngl
to abandon, e.\ce]it in a specilied casu, wniij.li
enable him to do so as of eoiiriiu in tiie i'v«
specilieil, if not iitlii;rwise eiititleil. .l/oi//i»rj
.El lilt tn-<. Co., '.'O (^ li. ()07 ; .Ui-mjlitr w' Ho
Jns. Co., 11 a. P. 328.
The following condition, " Insiir.ince suliaii
ing or ellected with otiier eiiiuiKiiiius, mustj
notitied to the board, and if appmveil uf, tof
endorsed on the policy and signed hy these
tary :" — Held, a condition preeeiloiit, ami nd
compliance with it a bar to tlic ai'tinii, thm
it did not soe.\[uvsslv provide. .MeHriiiex.
Dixlrict Mill mil /ti.i. 'Co., 30 (}. K 4,")l.
lleniarks as to the conduct of business byj
suranee companies, and the necessity uf leipi
tive interference to prevent the nHilti|ilioatiiri
unreasonable conditions, and pnituct the [hiIl
Smith V. Commercial Cnion Inn. Cu., 33 (,•. B.j
A party in applying to insure, oniitteu lU
tentionally from his (lescription of the proiieij
some particulars which he Wiis not asked reap
t tlifiv ;issfnt tn tlie a«.
y was cvicU'iue ut tliwr 1
iT i>f till' lifiiinM-ty, wliii:li|
he viiliility of tlii; assign.
Lawrence ln». TiLiSQ, R.
'v. .Wii'f /»,<, 'V.-H'. P, I
■)■'/ V. E'liiitdhlc t'ift l,,.i,
. H. 47-.', V. IHIS; 7'.,r.,„(»|
(hi Life Ax.i. ('(I,, Ul'hyJ
•eseiilrifh>H'i, CumkiIiikiiI,
iirnniiii.
c. ,.'.}, 0., "An Aci („,(..I
i;m in jiiiHr'iin iif jirf 'm.-iir.t
it firld'tii i'iiii(/(Vi'ij/ix ^■p, r'i'»(j
t of (!•! vij ji'ilie-i Ihn-niih
il. A ml if (iliii I'liiiijiiiinn
til rnrjl m' mlil tn ur o/iijl
.1, siieli riiriiitii)!!'!, ((■!•. , in!i«|
ill the milliner itirn-tnl, nni
'(■(' .<() ('"/• ll< lljl till' CljHI'/ (
iinextiun M triiil riln'iiui tlur.
Id lie jitsi mill rni.<iiiiiililt Ihi
mil ; llie iliri'>iiin nj smiiniiiri
eel III rerinc ur ujiieidlijik
ii-r Cit-ien. I
I Hi III rullil.
■idiUL'ut, or iiiisiv\ireKnf,itii)l
g a iHilicy of iiisuraiiCL- iif j
liu known liy the insmir, si!
Mel'iiiil y.' Ml ml end Ikinn
'J.
lioa'.iii;; at tlnttiim'nf tlic-pi
KO the fart that tliero waM
Iti'eL-tfil with anntlii'Vi-'iUiii.injl^
airli a wronuful cdiK'iTiliiieii
of fraiiil. avoiding the iiiilwj
/ I'ire mill Life -•l-«. (-'"-, r
llt.'n nii'moranduiiiiiuthefi
lii-oviiiin^au-iiiist hiiliilityf
lunist prevail, tlmiiL-h suven
Vicousi.Ucnt witli It, wt'i'ola
1, also, tliat a ui'g;itive l*
Lireilslionhl not liuve ;i rig'
liu a .spi'cilicil c:isu, \V"uU I
Iso as of course in tlie ev«
|u;rwisi' entitk'.l. MmM]
\). ['.. tH)7 ; .1/hi;i/.m' V. //*
in.lition, " Insurance sulii
,h other eomialiies, miistj
la and if aiiiii'tiveil of, to I
lic'V and signed hy the seO^
ludition pr.'eedent, and nd
a har to the aetinii, th'ia
llvi.rovide. .l/''«Wi(ev. '*
CV.,30<i. 15. -451.
L conduct of husiiiess hjr I
land tlic necessity of K'glT
InroventthemultipUciiti.a
lums, and l>r"teet the jmU
\l i'liiijn In.i. t\i.,ii*^'^]
|„i- to insure, omitteii lU
I .Teseviption of the vrniiei
licU he was not asked res"
1805
INSURANCE.
1806
. i,„t which had the company's agent known,
I'swiire he wonhl not liave insured : --Held,
thit there heiny no fraudident oouceahnent, the
mission tli'l ""' avoid the policy. Liiiilhw v.
\,,d«niml Lhrritoiil IiiH. Co., 13 Chy. 37".
u the foot of a series of <|uesti()ns in the form
.■'.|.,|,|iheation, the following mite was i>rilited :
'',T|n,u,||ihciUit i;) re(|ue.sted to answer the abc
1,1K=11'.''I*
fully, as it is especially agreed (in the
ttati"" I
- (iilthe apidicant that this survey, as well as
ft. ilia"''"'! "' the premises, shall form a part
^l^.i^LMinditioii of this insurance contract :" —
uM that tile ro(iuest to give full answers coulil
', iV- eiii'strued as a notice that such answers
I reii'dispeus ihle to the validity (d' the contract,
irtdtl'e auti'ority of an agent to hind the com-
V I'V a" intermediate insurance, there being
iiitU'"ee of the omission to give full answers
' " lieeii fraudulent. Wlieii su(di is the in-
the company, distinct notice to that
I ffa't shcpiild lie given. llnwi' v. Loiidun ami
\iJ.ishii-e i'in Jii^- Cu., 12 Chy. 311.
\t the foot of the jiajier containing the answers
I tniie'itjvei'd ipia'ries propoumled liy an insur-
iii ciiinpany. ^ memorandum was inserteil
ititiii" that tiieir agents were oho .agents of the
■ilii'nts, 8(1 far as related to the making of
iii!iiiii.'tiii"s, i^<-'.. "'"1 tliat the company would
U.tkdiimiid hy any statement made to the agent
ciiiit :'i'ii!d "in the aiiplication :— Jlelil, that
I ft, jjiplioant w.is lioimd l>y a false statement
I (, "filled in the aiildie;iticin, even if the agent
llii as was alleged, tilled in tiie answer to the
littitiii" without iiutting the iiucstion to the
Iwlioaiit tileiikh '/ V. yiiii/nrii JJiMrict Mutual
'kCc.ltiC'hy. lilS.
Iniimi'tinn gi'anted to restrain an action at law
lo wo'ver money secured liy a life assurance
Irfatol hy fraudident misrepresentations. JS'u-
Ifewlii/f .'1»<- (■"• V. A;/'n(, '20 Chy. 4(il).
(W Dewpfinu of Projierl;/ or J'reinhe.t.
.liHilicyis^iied by defendants provided, "This
Ibraiioe' sh .1 at all times ami under all cir-
Isfflitaiices lie subject to such conditions as are
iMtaiikd in the printed projiosals issued by said
Imiiwnv, a copy of which conditions is printed
Itsthihack hereof." One of these conditions
liK, tiiat iiersoiis desir<ius of making insurance
lute t" "deliver in" to the olHce or its agent
lie fclluwiiig particulars, viz., a statement aa
bthe ciinstruetion, &c., of the building, and
kttlicrany "hazardous trade" was (Carried on,
unv "hazardous" goods were deposited in the
msii containing the goods to be insured.
J(K was, also, a condition that certain speci-
bimadiineiy and heating apparatus should, if
jluimiithepi-emises, be particularly described.
intiff, liy his agent, applied to defendants'
Bit for an insurance on his stock-in-trade,
iiiiils, and shop furniture. At the time of the
^cation certain goods of the class denomiu-
fci"hazardmi.s," and certain machinery, &c.,
id priivided against, were in use on the
ks ui (luestion. Defendants' agent pre-
1 to applicant a printed blank form, which
it no allusion to hazardous goixls or trade,
k to machinery, &c., and on the same being
ilcfendaiits' agent iiecepted it and re-
B(J the premium. Defendants' agent, how-
ij,w!ien taking a risk a year previously on
the same projierty and in the snnie iiremises,
had impiired and was told by pl.uiititl's agent
the full particulars respecting \ilaiiitiir's business
and the premises in which it was c.irried on, and
was also informed .about the machinery, fee,
upon the same ; having been, moreover, referred
to another company, by whom a lisk on the said
property had been taken, for all rec|uisite infor-
mation on the subjeit. It also aiipeireil thiiu
the nature of plaintill's business was well known
by advertisement in the local newspaper., anil
otherwise :- ITeld, that the expression, "deliver
in,"meantdeliver in w ritiiig, ami that the ]daintiir
did furnish in writing all tln^ information he v.iia
required to do, the def(;iid '.iits or their agent
not having reipiested to be fmnished with more,
Viut having accefited it us siillieieiit by issuing
the p(dicy ; and, in addition to this, that thu
evidence shewed that defend. mts, by their agent,
did in fact know and liail the nieuis of knoviag
the nature of pliintili's luisiiiess, and the jiro-
cesses by wiiich it was eariied on. Held, also,
that defendants were at liberty, if they pleased,
to waive the prest^ntnunt of their printed pro-
posals containing tiie conditions of insurance ;
and that thidr agent ha .ing .'ccvpted the re]ire-
sentation of plaintilV as U> ilio proposed risk,
defendants were, in the abrjiico of any fraud or
concealment on his put, liable to plaintiti' for
the loss sustained by him. I)iirii v. The Seotthh
Pruviudal hi-f. Co., l(i C. 1'. 17(i.
In his .ap|dication the ]il liiitilK untruly rc^pre-
sented the liuildiiig as funii-died with a brick
chimney : -Held, that on this ground the pidicy
never attached, and tli it the jdaiiitil}', theieforo,
might recover back his prcinium. Mutrei) v.
ilure Mutual Fire. ^l.vs. Co., '2o (,). H. 4-J4.
On the !)th of August, 1871, the plaiiititTs ;ip-
plied to the defendants throii.di tlieir agent, II.,
at Hamilton, for an iiisuranee on goods to the
annmnt of :i<(i,0()(), coiitained in a store on the
South side of Kiii'g street, d.'scribed in the ap-
plication as No. '27-. in defendants' special tariff
book, and marked No. I on a diagram endorsed
on the application, and received frmii H.a letter
and receipt for the pr(iuium, .'>;>7..'iO, being at the
rate of (i'2hc. on the .SIOO. On the following day
the plaintiffs notitied H. tii it they had adiled to
their premises two tlats in tiie adi<iiniiig Iniildintf
(which would be No. '2~'.i in defendants' speci:il
tarirt' book,) and li:id placed part of their goods
there. A few days after, 11. inspected the build-
ing, and said an extra rate would be reiiuired.
On the 29th H. notitied ciefeiidants of the ojieiiing
into the adjoining liuilding, ami asked as to tho
rate to be chargeil. The secretary at Montreal,
on receiving the letter, peiicilleilontheapiilication
the fact of the opening, ami he had previously
drawn on the application a sketch <if the premises
taken from a former policy, when the plaintiffs
only occupied 272. An increased premium, mak-
ing inall 1 percent, wastixed anil paid by23i-d Sep-
tember, and the pidicy issued immediately there-
after dated .as of the !)th of August, describing the
premises substiintially as in the .application, and
referring to the sketch and pencilled opening,
through which it w.as said there was a commu-
nication with the adjoining house (N'o. 273).
The policy was handed to the plaintill's in Sep-
tember, 1871, and the premises were burned in
March, 1872 : — Held, that the aluer.ation in the
premises having been made before the policy
issued, the description therein did not extend to
II
1807
INSURANCE.
1808
'■fill
lli
or cdver tlu^ tjoocls which were in the niljoiiiing
Hiittt aililoit wh(!ii tlie extrn preiiiiiini wivh i>Md
ami the i)i)lic'y issued, imd thut the phiiiititrs
Buiiig uiHiii tiio policy were Ixmiid by the desuriii-
tion coiitiiiiicil in it. Senible, liowever, that the
policy was not in iiccordunue with the intention
of the imrtii!s, the notice to and knowledj^eof H.
as to tlie storing goods in 273, being notice to and
knowledge of tlie defendants ; and that inei[iiity
the iiolicy might he reformed. Wylil ct id. v.
Loiiihiit mill LhvriiDul mid li'lDbn /iisurunce Co.,
33 ii. H. '-'84.
On aiiiilication to reform the policy, it was
Held, that liy what hail taken place, the.so flats
had hocomc for insnrance pnrposes part of No.
272, and that the plaintills not having hcen
guilty of liny fraudulent conduct whatever, and
not having concealed any fact from the cinpany,
they were entitled to have the i)oliey so rectified
Uavmg authority, *c., .is m the former il
that M. personally inspected the piopiTtv '*i
was aware of its value, and liff,,,,, ',„ p ?"''
such inspection solicited the plaintin' t,, i ■ •'
to the amount mentioned in tluj iidli ■i"'.'"^''''
that there was no fraiidiileiit niisr, ,|-,.s?„;,!""^
on thepluintilfspartas to the vahie ,,i\,i,,i
perty. Defendants rejoined th.it till! '
I pro.
''^■' ''t'pri-si.'iiti.
in said appiicauon in,, m-np,.,. nfcr,,,,, n
.to accqit or reject tl,,. appli^.t;,,
lefeudants bi'lieving siuli ivi.n.,,.,,,,,; ,.
ill
a.s to enable them to recover the full amount of
their lo.ss to the extent covered by the polic}'.
.v. ('. 21 L'hy. 4r)8. Atlirmed on Appeal, 23
Chy. 442.
Held, that the term, " Machine and Hepair
Shop," did not necessarily mean a shop in which
iron work alone is to be done : that it was pro-
perlv left to the jury to say whether the business
carrie<l on there, of making shingles, was that of
a machine and repair slioj) ; and that the evi-
dence, act out, fully warranted their finding that
it Wiva. (Jlidplin v. yVic I'rovhiciul fii.t. Cu., 23
a. l: 278.
The a] .plication for an insurance, which was
in,ade part of the policy, provideil that any erro-
neous repicsentatioii therein, oroniissioii to make
known any fact niateiial to the risk, should avoid
the policy. To a plea that the phiintifF by his ap-
plication erroneously represented that there was
no building within 100 feet from that containing
the property iiiiured, which representation was
material to the risk, the i)laintitf replied that ho
eflfected the insurance with one M., an agent of
deiendants having authority to solicit, make out,
and forward apjilicatiiuis, to deliver policies
when returned, and to collect and transmit
premium.'^ ; that M. personally inspected the
property insured, and knew its position and dis-
tance from other buildings ; that the apjilication
was tille<l up witli his knowledge and approba-
tion, and traur^iiiittcd by him to the defendants,
who made no objection ; and that there was no
fraud on tlie ])laintitf''s part in reference to said
distance. l>cfendaiits rejoined that the apjilica-
tion was tilled iij) by the plaintirt' and handed to
M., to be forwarded by him to defendants' head j therein make any irn
70,
Wastianded by the plaiiitiirtrMrtu'lu'Ci'"}
by him to the defeiulants' hciil ,,111,.,. t i
prove,!, *c (as in the fonn.-r r..,,li,,,t„;,;)'*';Pj
the idaintitf well knew tliat i,ii tii,
tions in said application th,
decide
accented the risk. Per Ha.'.irty, ('! !l tt'"
joincler was clearly gooil. I'cr (■;uviini. I '!»?'
tenth plea was in subst:iii,.,3 a pl,..i;,|- fiaiVliri/,',! I
misrepresentation. an,l tlie rupli,.Hti„i, rniht « '
consiilercd as setting uj. iiiatter >,f evi,lui,c,.'fr„„ !
which the denial of fraiul was st.iteil as an juf'.r
once, but which did n,,t displ.u',: tin; i'lnr,.,.'nfl
fraud, anil it was therefniv ba,l. .N7,„„„f .
llaMliiij.* Miitiinl Fin- Jus. Co., 25 ('. I' 4- ^'
By one of the conditions on the ii.iiicy it wmI
provided that if an agent sli,,„l,l till 111, tli.in i
^dicatioii he should be dc, iii,.,l t,, l,f thu.-i.-.ptl
tor that pnriiose of the iiisuiv,!, ,im,1 ii,.t ,ii"tl,,|
company, " but the i onipaiiy u ill bi; mmmiumI,].
for allsurveys made by their a:;ciit.s i),.'i-s,iiiiillv,'
In this case one M., a pr,;vi,ius uwuor of tU
property, at the agent's rciucst, lill,,,l i,, th,
iH>plication, and on its bciiiu' !i'a,l (Aei't, thi
insured he objei'ted to the distaiii'js state
the contiguous Imilding.i. The a^ant, wh,i|,^
previously visitcl the pniiiisfs tli,Mnir,,l,Tt o||
to go and measure tlie distances liinisi'lf mi,!
that the application was ,•,. rivet Ijcturi' fiinian
ing it. 'I'he insured theivuiimi si,,'iii.,l lliuaiipli
cation, and the agent, in lor« anliiii; tin: ajiplioi
tion to the head oliice, wrote to tlioiii in ivuivnd
to the risk, but such lettL'r was nut i,ni,lii,.','il j
the trial : Held, that what the aircnt uii,liTt,i«
to do Would constitute a survey within tlJ
meaning of the lu-ovi.s,., aii,l that the agiiiti
be presumed to hav,' iiiailc it, sii a.s t,i nndj
the company responsible. S. C, 21) C. P. ,'J3(
Declaration on a jmlicy of iiisuranoe again
lire of the plaiutilf's grist mill. F.iurtli ii!«i,th|
by the policy it was agnjcl that tliu iijaiiitif
application, on which the j'olicy was ^raiih
and the survey and diagram of the iufniisi-.i, a
all things therein cont.iineil, shuiilil lie Ui,
lis part of the policy, ami if the insurtil slioi
office for approval or rejection by the projierotli
ccr, who, as the plaintifl' well knew, was not said
M. ; anil that'defendants, believing the statements
therein, did thnuigh said proper othcer accept
thereof, ami issued the policy : — Held, that the
rejoinder w.as clearly a good answer to the repli-
cation, for that the fact of the misrepresentation
being known to M., as well as to the plaintitif,
could not, uudor the facts stated, prevent it from
forming a defence. The tenth plea was, that the
plaintin represented the property to be of niuch
groater value than it really was to induce the de-
fendants to insure it f()rS2000, and such represen-
tation was of a fact material to the risk, by reason
■whereof the defendants, aocording to the terms
of the policy anil the law in that behalf, are not
liable upon said policy. The plaintiff replied
that the insurance was effected through M.,
IS rcpl'csclitatli)n,J
(unit to make known any fact inatiiiul tn I
risk, the policy should lie voiil. ' ml tiie ilef^
ilants alleged that there was a w oileii Imilili
58 feet from the insured premises, wliieii w»
fact material to the risk, and to liu knimn
defendants, yet the plaiutitt' in saiil a]iiilio8S|
and diagram erroneously ivpivscntuil that 1
building was 100 feet fioiii said iii.snieil preini
whereby said policy was vuid. in tlieiii'thi
after setting out the same cunditiiin, iletViiiU
alleged that there was a woodun Iniihliiigi
shewn on the plan or diagram near the iiia
premises, which was material tn the risk
that the plaintiff erroneously uniitteil it.
ninth plea alleged that the plaintitl' erroiiei
and falsely represented the ca.sh value oil
insured premises to be §0,000, which was»f
terial fact, yet that they were worth much J
h -iMt
""''"^-'^I f
1808
\m
4o., a» ill tiie fi,
inspected tlif ium,t.r'tJ''!'\'
,-iiliu' ;iii.l \ t 1 l"^"> anil
i;ito.lthoi,la,,,titVtn,,J:
iitiont'il ill
'uaiire it
rejo„K.,l that th,,. am, LT"
tlio foriiur
ttum t he i„-„,,„, „„i;,^
I .;v.nK m.rh .•.p.vscnt.'t,,,,^
lor Hayarty. C.^.^tiiere:
g'""l. IVrCuyni,,,,! ,,;
'1-taiu., a i,l,.a nf f,a,„h,l,„i
""' *''^' ''^'l^'iltiul, must 1,9
gui.matt.n-„fevi,h.„,vfr„m
wua \y;is stattMl a« a,M„tef.
a not .hsj.ao,. thfohnrgeof
tliLTctiiiv l,a,l. sl,„:„„,n y
n- J,i-<. Co., •_',-)('. p. 4;y
n.litionsnn tlie i,„liov it «•„
agent .^h„iihl lih ,n;ti„,
I l.e iii:r,iu.,l t..h, tiioiu^,
tlic iiiHuiviI, aiiil nut nftii,
)<oniiiaiiyuilll,or,^|)„„,j|j,'
I'liy thi'iraLtfiitspuisoimlly
^I., ii prcvidiis ,„viier of tin
gfllt's IVilUCst, tilluil i,i t
II its ln'iii;,' ivail (Atrt't t
ill to the tlistai'.ivs statfd
'lings. Thoii-,i,t, «li„l„
111' pn imM..., tlii'ii niiilittiol
till! (li.st;mecs jiimsuh' an
I was (■(U'lei.'t ))i.T'iire fonva.,
il tiifiviipu!isi|,'iiL'cltliuajmK
lit, ill lorwar.liiii; till.' aiipli.,
00, Wl'Dtt! til tllvlM ill IVIilvlK
II Ifttfl- W.is lint piMihlrijil
luit what tlic atriMit luuiiTt
titute a, survey within tl
visi), ami tliat tlie agent in
ivl' made it, so as t« I'mdJ
iisihlo. ,S'. C, 2i; C. r. M
i piilioy (pf iiisuraiico a^ain
i grist mill. Fmtrth i4i-a,tlii
.s agreed tliat thf )il:iintij
icli tile ]Milioy was f;iant(
diagram (it tile iiroiiiisi:!, a
cimtaiiieil, slimiid in; tak
;y, and it the iiisureil ^Iioii
eiTiiiKiiiis represeiitatidii,)
'Wii any fact iiiattrial
uld lie viiid. 'lultlifileft
there was a w odeii liuildi
.sured premises, wiiieli '
lie risk, and in he hwvD
! phiintitV in .saiil ii]iiiiica
leously represeiitdl tliat i
ut fnim said insured prtin
y was Void. Ill tlieiii'tlii
e a.-viiu! ciuiditiiin, iletVmu
was a wooden huililingj
I or diagram Hear the ins
13 material to the risk
irroiieously omitted it.
;hat the plaintid' errona .
silted the cash value of j
) be §!),000, which was af
i they were worth much f
« the libintitf well knew Tl„. , i • .. „
tliefnrthjdea. that the ini^'ll^lJ'^-plie.I
^NSITRANCE.
"ly hy ail iiifcormorliato ;„
(c)
*'"''""■"' "^ '" Value.
Mtlieiourth Idea, that thei,,', ' , ""''''^'•'■I'lio.I
,l,r„„j.h one .\l., asm, age! 'T'T'''""^'^'''-''"
Liviiii; autliority to s.dieit m\h '''■''''" '"its,
,inl apiilications, to deliv'e r '•""' '^"'' <'"i'-
wed, and to collect au!l t ra .'^''T "'"■" '''--
ll,,!,aid agent iier.son.all v in,, ' I'l^ l"'oniii,n,.s ..
Ill W.W fully aware ot^ts ' ',>' '''^l"'"J'erty,
l&„ncetl,e,vlnm,ofthew,,,,|' 'i;!';/"'''''f the
I t*il: and said ai.jdieatio,. ' ,.''"'i.'« '"on-
ilW 111. with tl'o kiUMvIeil.r,. .„', ' '''■■»g'-'iMi u-a.s !
Mill went, and tr.aiisniitti'l ' . ;'l'l"'"''-'tioii „f '
iliiits, ;iiid neither Jio m.r th, v "•'" '" ''ofoii-
miliilil.iings, orm.tiliedth ,l\-''r-^'t'> the'
Ipfawas alteeted tlieivl. ' . ' "l.^"' "'•'t liis
Ikvosiiorniml or fr.m;|,|'|,; ', ''"•''"^'•. that
ktlie iihnifilF ill refeiv,,,.^. t„ f I ''"r"''"'''''"'
|is;i\vii.iileii linildiiig fiMoi f!„. , ' '''■<fanee of
r. i: similar replication 'S"'"'- ''''"^''^^
|,tkrtw,.iileas..-^H,d,l, H.irns,; r r'^'' '" the
ltlifa'lto'i"ii'<"'ere had, (■„,.H,.,f ' ".,' '"■''•"<■. that
Itotheplaintiiriuiinviindv ',, '' 'H''''"''«o.l
Ifaibts' agent in a n.isrepr ,s' h'"'"^''' ""''"' ''o-
(te. if material Caets, «hid, .';'''''" *" ''olon-
Itoiiilaiits ; and the .le„i;,I ,,f ■, "l '■""' "l""l
Ik immaterial. Sh,,,,,,,,,, v /• '"' '''■i'* tliore-
|„„'/W/«.v. r,,, ;i7 y ,j_ \-^<''-<' Jy>-^lrh-l M„.
FrUikoii, J. ^The power „f fi
JWthe edinp.uiv l.v;iev..Mf;,. ^ ■^go'it to i ,i',
Letii his owi.amrCa ' ':^ ':)'l'lioatioi, th, V"m*'"^ '"«"'
|rf.iiitl.ea.ss,>,iied fVom 1 ' '■"" '^ '^""^Wod... . ^ '^■. "•'l'l<".gs f„,
liiiejilea, thoiigii thev i ' , It^';;::'^ ^ «I'-^ifiSl ; „ ^ ^'V «!^'tei,ient. ,,f the" iH,;.':" ''^'^'^ truste.l
^ PerHarrisiiii, t'.j. ._p,,.,,, 1 ,, '" i r
■liiiiitifs iiart could not l'., '"' '-'"""«'"ii on the ' „.i •","". ■'*^'t'"n on a nolie,r f - ,
'" 'i/ipltriiltoii I 'v\ , .
^■iliiation, and a neu 1' i''"' '''""'"lout „w.',
'-■"«t'^ to al,i,| ' ; *'''■'' "'•■IS L'MoV, •'■
't^ShH;;;:t"E^:-jr'f-o..toin.peet
n::/h.^^'^-'-'t-if tii; ,:;:;,'::'^i'^'ve tru^te]
■' oonrt will
^'ory strong
'«"'fe'''MVan,h.ie,t.:,?f"''";'-"-"«l'l.
S"U'liiliiotavoid the ,. I- '''■''""^■'"t. thel un • ■ ■ ■" '"v. o'.a .S'inp ,;, '•
•^i: "Api-iicatiim^^ ';;:;::=; "«"- "-^^ ^f-^^^ th "^.rti;:^ ;^ ^^'-''^-ty. t.^ 1^'^"
toU'stahlishnientsvvler V "''''''" »wnu-^»'''«ther or nof fi ''''''' the jury sh m,M
V^' nndiinery, U; T ^''^•■"" •« usod f,,.. the knowled f ,.,*' 'f'-^' "'^'^ ■•"' ''™r4 In '^f
Wi'liwt refer to a v.at mf ^- . ',' ' ^'"'t this | -•< <-' P. 278 s, / 1 ' ''■ ^ '■'"•i'lnnl /;,!%>
Hjotheca ill operation f.'"""'^''^- ^^■'"•'-•h 1 ^'"■. 7 C.
•i't file time .if the " I'r" ^'='''-«' '-^''-ir^*- ^- UO,
y Jt^;! to put in op .;£"''''" 't was n„t ' •-
kfo:.t of ,,=„.;., _. /-J-t^V-Sll.
''^^^S^::^::^^^^^^'^ "'«-o b„i,di,.„3
%"'e avoided, where'it n ' ^^"'^ "'" ""t thert
yahutiou was \U\\^, ^ ^K'^''^ ^'^'^^ «""'' ove^
Chy. 377. ^""'""' «'"^ /-"'/<.« /^.frifl^fg
■iV'y ■< :
•■I
F 1 ■ : ■ ■ ;.»
1811
IXSIJRANOK.
IS]
and extent of tliL- li.-tk, iiiiil of tho interest of tlio Firr /nn. Cn. n/C/lii/'in. ().]',, ,-.] >
insiiriMl ill the i)ni|iirty ; and tliiit if in hucIi a]>- Harrison, C. J., sitting alone. .\i,t' ■' "*"''
lilication or i)l;ui, or in any written notice to the
eoinpiny rcHiicftini; any eliange in tiie nature of
the risk, tlii're ulinidd lif any iintrne or inaccu-
rate stateincnt, w lictlur intentional or not, the
jxilicy should lie \(iid Tlie nixtccntli condition,
lifter [irovidiiii,' that iiayiiicnt of Iosscm Mhould
lie made in sixty d;ivs, and that any ditl'crencc
touching any loss :di,Mild, if the coinoany siiould l"."'>' ''!.""'. <''t'''it "» xr,,m), „,„i tli,'"r,',!v'"'i
BO ivnnire, "1)0 settled l.y arhitratinn, and that ''',''' ■''IT'""''",'" l""'"''"'''' •''"'" '" ni„;, J', ''
Hy the rules of an insuru >Miui,ti,v
Muranceon houses would lie ,.|rr,t,..l |,,., ' "" '"'
two-thirds the value of tlie i„-,.,,,; . ..." .","''' 'Iiui
"i; inviiij.,,,
'* ''Xi'llLHiv,.
the value of the land, 'j'he imiur ..f j ' '^'"I
(ilied for insurance to the extent, ,fs-,H-!()"r''''''
lireviou.sly elfc'tcl an iiistir,,,,,, i„ Vn,!fl,', , '"*<
I.uny to tile extent of .y.ViHMI „„.i .,. '^'''"I'l-
the t'oiniiany should have the <iiitio!iof rciil.iciii!,
any iiroperty hurneil, iiro^c^eded, " In ease of
the value to lie SN,,"i(M).
if ;i trills cojiy, was an
value, as the actual
his the
""•';nvct_staMao„t„f,|;;|
loss, if the iirolierty injured lie found liv arliitra- ^''^"^''' "^ "','' "7"''' '""' "'' 'I"' ''"iMiiiL-s i,,-', i
tioii or otherwise to have lieen ovcr-'valncd in "^'x "l-wards ot .«I.-,.(HI(». llel.l. tl,.,t ,i; tl u!
the survey au.l deseriptiou on will, 'h this ii,,!icy ""' '^" "vcr-vahiati,m to the |,ivjii,|i,.., „f u
is fiiunded, the cieiqiiny shall lie hehl lialile only,
altiioUi;li there in ly have been no fraud, for
such ]iro[)ortion of the actual v.due as the ainount
insured liears to the value given in the ajijilica-
tioii f,ir the insurance ell'ected liy tliis ii,ilicy •"
— Hild, jier W'il.-ion, .1., and allirnied liy this
court, (iwynnc, .1., dis-t., tiiat the sixteenth con-
dition was not a iiu diiic ition of tlie second ; Imt
that each was se[iirate the second causing a
forfeiture of the jiolu'V for an over-valuation in
the ajiiilieatioii : and the sixteenth jiroviding for
eoniiiiny, tlu! iiLiiiitiii siiouli
«uit to enforce iiayiiu lit of tlie iiisiu'
to shew the tr.ie value. Jfnir/,-,
JJi.ifrirt Muliiiil i'lrr Jhh. (',,, '.';j (
thftl
'l'"»'"l, Ml al
"lite' niMin-y r
V. .Vw;,„;.aJ
i.v. Hill.
See Mi-Ciinhj v. CiiUii J-'!rr /„.<. j,,,
S.'), 11. 1S.S4; Shinniiiii v,
/h". Co., •_'.■> C. 1'. 470,
(inrr Distrirt Mn'iiul /■':,•■ 'jn.-t ('■,
11. ISOl).
II < '. pj
" I'MI'i: SI,,,,,,.,. A
//, tl,
'ii- ni'i'iiiiiii III' /,<).<..,■. I
a ease in wliicli .m an aniicalile settlement or is one for the jury, and aitji.iu.'li tli ! '"'
ftrraiigcnieiit l.y arlntratiou it sliouM turn out ),u .li.ssatistied' wi'th the v; In,, ^et iM»n'l
■rty had liceii over-value,l, and perty liy the assuicl, still iinl '
"lilt 'iisj
ih
■, 7C.
tho
that the ]irop(
jfiviiig to the coiiniiny the <iiitioii of waiving siicn
fiirfcitiue, and in smli case inakiii'; ji.ayineiit on
the ternn stited. IVr (Iwynnc, .). — The st ite-
nieiits nii'iitioiieil in the lirst and second condi- I
tions had no reference to over-valuation, which '
was proviilud for only in the sixteenth condition.
Williiniiriiin V. ( 'iiiiiiii't'ci'il I'liiiiii jl-'H. Co., '2'i
C. 1'. -l.j.'t. Hut (II a[iiieal this decision w.is re-
versed, the court concurring in the coiieliisioii i
arrived at liy (iwyiine, .1., .S'. <'. in appeal I'Dtli j
June, 187<). ^'ot yet iviiorted. j
Defendants ]ileadcil that liy the application, I
>vliicli formed p.irt of the policy it v.-.is ilcolared I
that any iiiisri^iicscntation would render the i
policy void ; and that in the applic.ition, the '
plaiiititl' falsely rein'e.ientcil that the v. due of the
dwelling-house insured w.is .•<'J,OOI), whereas it
M'a.^ not of that v due, hut of a niiich smaller ,
value. Aliotlier plea stated the false rejireseli-
tatioli to lie that .S|.."i()() w.is n,it more than two-
thirddof the v.iliie of liie liaildings, whereas it was
far more. The pi liiititV replied to each plea, on
eipiitalile grounds, that one If., liciiig defen-
dant's secretary and their duly atitiiori/ed agent,
and having full knowle.lge <if the value ot the
Liiildings, prepiired tile a(iplication, and without
any enipiiry of the plair.i-iH', liut acting on his ! the court, notwitlistimliii- the li.sir.il )ir.ij
own knowledge of the luiihlings ami their v.due, to new trials where the defence cliar,'i< ,i
ae(iuired in the jn'oper discharge of his duty as nal otfence, (this lieing made lurjurv^lv ;i2
such secretary and agent of defendants, wrote | Viet. e. •_»3, s. "), D. ) ijr.uited aiiewtriii
therein the said values ; and the plaintill honestly
believing the values to lie correct, anil without any
ooncealnient, falsi^luio,!, <ir fraud, at the reipiest
of said H., signed said apjilieation : — Hehl, on
demurrer, a goml replication, for the representa-
tion as to the value was not a warranty, Imt
statement of matter of opinion, a mistake in
which, in the alisenee of fraud, would not avoid
the policy : - Held, also, that if no fraud were; in fee simple wIumi thev weiv only m
necessary to .support the plea, the replication ! "» f*i«. '"^nd for a less sum than tii.il iiiiui
would be a good answer, for the knowledge of , —Held, that they could iiec iveiAvr
have valued it too liigh mila liae, ainl im |
error of jmlginent, they will i,.,t ,list„il,
verdict. Ji'lrr v. /'i-i>riiifii)l Jn.i. c,
Defendants pleaded, tliat ;ifte
plaiiitiir, in making his claim, liaii ini.srquv.-.ntj
and over-stated the amount of hl.-i !,,>.<, L,,|;t^
to the condition in the pnhey : -Ifiil, tiiit j
sustdii this plea it was necessary ti priivi- tj
the over-estimate ilid notarise fnuu iiii»ti!.e|
inadvertence, but w,is ma,lo ,Lsigiiu(llv. |/
purpose of (ibt lining a larger sum tliaii'ti
really aust.iined, or to prevent elu.so ii,
J'ark- v. J'/iii-ni.f III.-,, c,,,. |;)(^). i>. no, '
Helil, upon the evi,leiiej set out in t!if iv
of the case -it being pr.ilialile that thu
though over-estimate,!, was e.|iial to tlif
insured, and there being eiiviiiust.iiicus \vli
might exiilaiii the over-eh:irge--t!i:it thi-
were warr.inted in tindiiig for tli.; plaiiitilf.
\Vliere, in an action on a lire poliiy, tliui
ill his statement of loss swore that his I
anioiiiited to about twelve times thu an
actually imived, ami for which he actiialii
taiiied a verdict, and the judge li,.'fiiiv hIh
case was tried was diss.iti^lied «ith thi; lia
abide the event.
Jltituiil Fir, /ii.-;. r
.\/.-m;ii„i, v.
.,L'i ('. 1' pj:
(d) Slnft'inoilt ri.i lo Til',- lUnI liini,ii';'
J II iijii>lif(ifli)ii.] — The plrtiiititl's iif
themselves as owners of .ui iiiiiiiiiiiiilMvil.l
the agent accpiired as alleged, wouhl be the
knowledge of defendants. Ikdford v. Mutual
policy, liroii'ii c/ al. v,
Ina Co., 10 Q. li. Toi.
(I'lji; Dy.ridi
fcn.
tktt
o».-^Q.H.-^:,th April, |,s:,l
" j'!t""':r"7"l«nyn„i„.
•"ttl.;,„v„„„.,,.x,.|„,iv,„f
'• , " ""'■'■ "f llnlH(S;,,,
.ti,.M.xt,.„t„r.s,-,,H:K),i ' ,
vn iiisin II,,.,.. iM:..n(,tlHT,„iM.
"t •s"-,<Hii>, .111,1 tilt. ,.„„,. ;,, !
iu''''l,at till, laMrii^r ^h,Vul I
H). llili tliiM.liiiiiiaiit.,,-,,,.^,
Ill i'ic"nvi.t .stat.im.|,t„it|,I
.<"><»• H..l,l,ti,atu:.tlu.«i|
inll til till' li|.cjl!,li,x. „,• ,|,.l
till slinnl.l ],, all,Av,..i;,i, »|
iK^iit (ii tin. iiisiin.iici. iii„iitv I
V.lluo. Jl,nd: V. .Xh,.,„}'A
>■ li'". ('"., 'JaCliy. lljl).'
f'lii'l/ Fin- //,.«. J,<,,,,., (ic. pj
'/"(( V. Ilitti;,,,!-, M„iii„l /•;«
470, ],, 1«()S; ,s7,„„„„„^J
(/ /■',';■' ///x. r.,,, ;(7 1^1. I; ..^
L'>S.-!.\ 'I'll,., |ll,sti,,ll 1.1 1|;IQ|
aii,l :vltli,nigli tliu nmrtnul
1 tin: Vi'.lut; sot lip,!]! hi;, iifj
oil, still iiiili'ss lie iiii|ii.,ir I
I liigli mala U^(^, ami n.,
, tliuy will int (listinli
'I'lirliirinl /«.<. <'ii., 7 (', I'.
dull, tliiit aftt'i' the lir.
his claim, liaii iiiisi.i.|iK:,.m(
: am, milt nl' lii.s l.>ss.'n,iitn
II tlm liiilifV : -Iful,!, tliitj
was uoeussary tu pruw- tij
liil iiiit arise fruiu mint ike]
iV.us luailu iljsiu;in.||ly, h
ig a lar^'L'i' t>uiii tliaii ti.
jr to iiivvuiu i-liisc 111 I'lfl
.1. t\>., I'Mj. B. 110.
jviiloucj set out in t!:.
uiiig pr.jUalik' that r
atoil, was cjiial tu tl
E buiug eiivimistauas
i (iver-uliiu'ge— tliat ihv j|
liiiiliiig fur the plaiiitiil'.
iiiii 1)11 a lii'o polity, till.. Ill m
il' loss swiiri-' that hi^ <hii{
lit twulvi' times the
ml for which lie aetiulljl
ml tlie jmlye. lufoa' wii ,:
< liissati^lieil witii the liiiJ
stauiliiiy the i;..iii:il ]»'■'■ tii^
u the ilel'ellee oliar^'e^ a i
eing maile povjiiry ly iiij
>.) graiileiluuewtrial. ■
MrMillin, V, (.'«■•
:'o.,-2i('. 1'. i-';j.
X /,) 7'(//r' anil [nvumk'm^
|— 'riii; plaintiffs repri
lurs of an iiiiiiii'Uiiilieivi
mi tliev weiv only lU',
jss sum than that iiisun
;y coulil nut rei'iivor
I, al. V. Lwfe. Dktrktl
I "■;-« «"* Wse or tram 1 i r r * 'f ^*''*- f*"" """''tio" of , „,,•
l .''■^■»n ,v,,s eloariy ,i. 'Y™'^''^. that K'-^t'o", witli tli. s„,;?J '"''^'Vy'^' ^''^'t tlie a„„I.-
fesisi "■?,■«-'"«« J=s,''sr ^ »- -*- ^^■
181.'>
INHUKANCK.
iHhi
{Kirty (-iiiiHiHtod (if two lmil(liiii;!< iKilniigiiiK to i
plaiiititl, tlmii^li tlic laiiil mi w liicli they Htooil |
wiiM li'iiHt'linlil, K'Ti'iiilaiitn |i1('iiiIl'iI tli:it liluin-
till' ill liiM ii|i|ilii'iitii>ii liail iiiiMrL'prt'ML'iiti'il tliu
t'lictN, dpt'i'iitflv art ri'^'ai'ilt'il liia titli', liiiviiig
iluHt rilii'il liiiiiMolf UH owiiii-, wliciiaH lie wiw
Iilt'i'c'ly li'ttxt't'. AL tlic trial |ilaiiitill tcliilt^rcil tliu
uviilt'iu'i; III' tla' owiifi' <il' ail a<l juiiiin^ Imililiii)^',
to mIu'W tliat la' (witiicNM) hail tnlil ilckiiilaiitH'
nui^'iit liiiNt till' liiiililiii^H WW xitiiittdl, ami that
till' a^rlll Ulli'U tlio piiHitinli iil'illl to liu thi'HaillL';
liiit tlii;^ wa« M'jictril, u« i'iiiitiailii'tiiij{ jilaiiitill'M ^
own writti'ii Htattiiu'iit, ami tlii^ jury uuiu ilirt'c-
tuil toliiiil tor ilcli'mlaiitHiiii tin- [ilea, the Icariieit '
jllilgu ntilsilij^ to Icavi; to tlirlii tlh; i(lu»tioll of '
iiiiHri'iniKLiitatioii on plaiiititl'H i>art : ili'M, '
that this ilinrtiiiii waH wrong ; that tliu wonl
"owiitr," haxiii^' no ilrliniti' iia'aniiig in law, ,
Imt hiiiij,' n|i|ilicalili-' to vui hhih intrrcwt.s w liirli
])artic's havi' in l>nil<lin^H, it jilaiiititr iisiil it in
giHiil I'aith he KU^'lit hot to Miillcr, ami tho i|II('h
tion «lirthir lu' lairly rciiriNciitiil the faits re-
uariling the rinU thinlil have It en left to the
Jlirv : Jlelil, alwii, that in miler fairly to jiiilj;e
of the iiiiNWerM of |ilaintiir, eviilenee might lie
given of the Miirioiimling laetM an to the owner-
8hi|i iif the liiiililing ami of the laml ; aiiil that,
to eMtahlisli the lioiia Ililes of jiluintitlH answer,
he might nhew that ileleinliiiitM' agent, who ihew '
lip his htateineiit, hail lieeii iiiforiiieil liy lihiintill,
or Millie one else to jilaintitf's kuowletige, of the |
state of the title. llniikinK v, J'rufiiieial Jim. 1
('«., IHV. v. 74. I
To iin action on a jioliey on ehattel property,
«lefemlaiit« pleaileil that plaintiti, in lii« appliea- '.
tion, falsely, i\:e., .stateil that he helil the proiierty ',
ill which the gooils iiiMiiril were hy ileeil ami '
nneiieiiinlieieil, w herean s.iiil property wan large-
ly nmrtgageil. The eviileiue .sheweil that to a|
(liiestiiiii I'oiitaineil in a jiriiited form of ap|iliea- ■
tion, w holly inaiiplicalile in many of the ijiiestioiiM
to iiisurame on ihattel property alone, whether j
the property was eneiiinliered, ilefenilants' agent, '
at plaintiti ".s ilietation, lilleil in the answer that
there was no emiiinliranee, anil that the phiintill' ,
■was alioiit to explain that the laml was niort- '
gageil, when the agent sto]ipe<l him, stating that
that was of no importanee, a.s the proposition
was merely for insuraiRe of gooils, and that
question related only to realty ; whereupon, the
goods not heiiig eiieumliered, the agent wrote
the answer aeeordingly ; -Held, that the (pies-
tioii must lie eoiisidered as relating to the goods
insured, and not to the re;d iirojierty, and that
the plea was therefore not proved. Axlij'vrd v.
Vtilorid Mnhinl .l.v.1. Co., L»0 C. V. 434. ■
By the policy the assured covenanted that his ,
ajililication eontaineil a just iv.nX true exposition
of all the facts respecting thv! cundition, &e. , of
the jiriiperty insured, and chat if any material
fact should not have been fairly reiiresentud the ,
policy shouM bo void ; and it w.w also provided I
that the insurance might be continued for any :
agreed length of time, the continuance to be j
considered as under the original representation, {
except where varied by a new representation in j
writing, &c. On the application the assured |
stated that there was no incumbrance on the
Property . Subseijuently, the premium was re- |
uced, and a new policy issued on the same I
property and for the same amount, no new ap-
plication being made or ({uestiond asked or an-
swered. It turned out that th>.;ro was in fact an
•lAi/'dii
incumbrancu on the propi rtv ; 1, 1,1 .i
the almenre of ilireet evidi-lur tn tliuini.
tins latter iiolicy iniiHt be asyiiim',| tn 1,,^ '''"^^'
based on the original »l'l'li''itiiiii ; ainl, tk*^"
fore, that the aHsiircd loiilil mil inii\i;f ' ''' '
V. Thr lliimr //M. ('«., 'MV. I'. 4.17
At the time of efl'eeting an ili»iirain.'i' on ,.,
tain property, the inHiiriil «'niiiiiiui.,|v m ,1 ,|"
his applii'iitiiiii I hat there was .,m1v im'iiinlinl '"
aiii'e tor !!l|,<l<K), whereas tlu.|v"tt,„ a ZT
enelimbeiaiiee of .'-'■".(M), wluivhv t|,|. ,'„,||,.^ 1'""
I'r.me liable to be foiteited. '11,',. s.MH) « i;,,,!'
seiiiieiitly paid oil', and alhr this, anil mt,., d'
liofjey had ex(iiiril, tlir pl.iinutl, „ |„, |, ,'1 1,^ ""
the owner ot the pinpeity, |.|.|i,.,l I, „■,!'!!! 1
iiisiiraiu'e, and mi being iiiti ri. . .t, ,| l.y t||,..i,,, T
as to the eni'Minbraiices, tnM 1 im ,,| the ,'«| "kk,
being the only one. 'Ilie plaiin.lj, at tin u..,,,.!
snggestii.n, instead of elleetin>; a new iiiMinu,,,
took an assigiiimnt of the iximcil i„i|i,v '1
Held, that iimler these eiiiiiiu.^tiiniv.i, tin' ,r|
tendants eiuild not set up tlir iiiisi'i'iiri„uitit'|„»|
III the original a)iplii'atiiin as t.. iiuiniil.i;uiaj.|
but that it was siitliiieiit that at tin,' tun, 1,1 tU
plaintill's insurance the applic itimi w;,., in,,.]
ally true. < '/ui/iiiinii v. (,•.„■. /n.,ir\,'t \i,
Ins. C,,., •_'(! ('. I'. S'.l,
^.hi,it
To an action on a mutual lire pnlicy, ,!,■, mlj
ants pleaded that the plaintill' in liis ii'|,'|,||,,,ti,J
represented that he liclil tlic inciiiis,- u. l«
Hiinple, whereas "the plaintill liul ij„i , ; tU
in fee simple, and the tiiic title was iMt n ir j
cxjiressed in said policy, or in iIr. a|iiili,iti„n
but not idlrgiug that the plaintiti niiul, m
statement as to encumbraiic,.< m' cutst.iiil
eiplities : Held, that mi this i>.HUc tlit^ plmit)
was entitled to recover, iintwitlist iniliii"tli.
to him was absolute, he was in fait niilv muL
gagee. U'/ii/' v. T/ic A'iri,-i(lliii;il M,'t'„! ij
<■„.,•_>•->('. P. its.
The defendant insured his dwillin;' li.,,:-
emiteiits in a niutual iiisui-aiici.' i'iiia|uiiv. ,-titil
in his applicatimi that he was tlic owiaiHt (f
property by deed in Ice. Tlu- lirH[iL'rty 1« iiwj
stroyed by lire, defendant swrnvtiitlicsaiik fj
ill his allidavit of claim, and ritiiiinil .-Tliii I'rJ
the idaintill's in settlement. Tlic pi lintili- »■
sei|Ueiitly discovered that the inniicrly w\ijj
owned by the defeinlaut, Imt liv liis tiitlur,
they threatened to arrest del. inlaiit aii,l \i
cute him for olitaining the iiiipiicy piii'l t'l
under false iireteiiccs, and fur perjury; iiiidl
fendant, to avoid the arrest and pi-nscciitiuii,,
the iilaiiitiU's a. imtc for the .•<7(I0 : -IkLI,
the plaintill's could not reciivcr mi the lu.te,
in the al>sei)ceof the piilicy, wliicli wa> imtJ
duced in evidence, it was imt sinwii tli:it|
misrepresentation as to title avunli'l it. nrf
tied the plaintill's to receiver hack the iiiMin
money, and therefore 110 cunsiilcratinii iiinx
but that of avoiding the arrest ami innsi
Held, also, that for the same ic;i.siiii the j<l
could not recover on the cnininuu ciuints, (
money paid under a mistake .n- uiisiviiie
tion of fact; but a new trial was griinteil
able ]ilaintiti°s to shewtlie facts iniiru liilly.
(la Foniwrn' MuttutI Jim. i'i>. v. Wiil-iaii, '!'>(.
Where a party, in answer to a ijuestk
dorsed on the printed furiii of ap|ilic:itinii, I
th.'it be was the owner nf the estate subjj
a mortgage in favmir of a Imihling s^ i*
$1,500 ; the facts being, that he uiily lulJj
ia-Hi"' ■-"" -" r.' . - -• .- ■• i ■ '
.0 property: U,l,l. tim, ,„
uct I'vi.li'iu-.i tc, tliu niiitrufy
iiimt Ik' u.s^iliiicil ti. liiu,, \J'
iiiitl n|iiilicati(.n ; ami, th.-,c.
•nl ciiiil.l nut hriivur. .1/,,,./;,,
('(,., -joc. I' 117.
.■ll'cctiiig nil MiMinim.' uvr-
iii«iiri:il »'n.iii(nu,ily»(,it,.,l,|,
t tliiTo wiwiiMly im'tiu'iiiiil„.r.
rth.ruiw tliuiv wiw ,^ ||,|,,||,|,
f*MM, wlifliliy til,. |,„1|,^ 1^,.
fl.ftfitl.Ml. 'lllC ■S'.tKlH;,,',,,!,.
mill iillrr tliis, ami iittii tiiu '
, tllfl.l.lUltlll-, w||,,l,;i,ilK,,„||,J
|irui„.|ty, .■.\:\,Un[ i„r ,.,„,»
"■"'K"i'''-i"-ii''ll',vtla.,.|j;,„{
ivnci'H, tiihl I till ,,)■ tlif.'il.odd
. Till' iPlililllltl, lit tluil;;',.l,ti|
I <il' fllcctiiijf II iii'W iiiMiiiiinx.
•lit III' till' l'X|lin;il imliiy;-
tlu*u fiiriiiii>tiiiici'rt, till' ,lo.i
t SL't nil tlic lllijt|-l'li|V.-„.llt;ilii,|i|
iliciitidii lis tn I'lic'iiiiil.riiua',
tlicii'iit tliiit lit tin; tiiiii ot thai
lou tin: aiiiiluMthiii Wiia htit,
until V. r.'cv J)i<irl,i il,,i„J
S!).
II II llllltlllll lirr linliry, d,.;', |i(l
tin; liliiiiitiir ill Ills ii|r|.lii-itii)|
ill.' hi'lil till' inviiiisi.- Ill t'e(
"tho plililltiir h.lll l|(it;l titl
. till' tnir title Wil.s lint iinf I
liiiliry, or ill tlic aiiiilioatim
tlliit tllf |ii,lilitill lii:iili
iiiu'iiiiiliraiii.T.i iir mitsta:
tiiiit CHI this issiio tile iiliiuB
.'KViT twitlist:iii4iiigtlio.l«
iti\ ill' was ill I'ac't iiiilv moi
Tlir A:inril/I„,:il .]h'i';,H^
iiisiirt'il iiis (iMvlliiig liiiiisoi
;iiiil insuraiici.' (iiiiipaiiy. >t:iti
that ho was tlii' miini'iit 1
ill tV'L'. 'I'iir iini|icrty liiiiij(
.'fi'nilant swui r tu tin.' saim lij
L'laini, and 'I'ltiiiiii'il .^ilHIf'^
iL'ttli.'iiii,'nt. Tlii; iilaiiititi't
•I'fii tiiat till- ]ini|ic'i'ly w,i
ft'iulant, liiit liy liis latlaT, ;
til ai'i'L'st iliiriiilaiit mill [iB
;aiiiinji tlu' iiiuiiiy piii'l tu '
jiicL's, and lor inTJury ; and
tile ari'L'.staliil |irnsi.'iiiti(iii,j
imti' I'nr tiu.'S7()0:-lli.l'
Id not rt'i'oVL'i' nil tile iiiii.
tiie jiiilicy, wiiiili wa> iint
ce, it was imt slii.'Wii that
II as to title avoiiied it, "H
s to recover iiaek the iii-iin
vforu no eoii.-.iilenitiiiii n\'[i»
lili^' tile arre.'-t ami ln-i-aBl
'or tiie same leasuii tlif I'l^'
r on the I'OlllllllIll L'lllllll>:
er a niistalie or iiiisivjiia.
t a new trial was graiitiill
Biiewtiiu facts more I'ully. L
mil /iih.Cd.w ir((A<iiH, 'J.-iO.!
y, in answer to a i)tustioj
intod foriiiof aiiiilicatimi ■
owner of tlic c.'^tate sii'->J|
ivour of a liuililiiiL' S'vm
a being, tliat lie ouly IkUI
mr
IN«rRANY'K
l<ii'!<m /ill. Cii., \\\ Oiy _.j—
, TlieiIftV'nii.'intK'trHv..|lii„,,.,. l .
u,,,i:uMt,.rhisa,,ii,::,!:;:;^^«;'^;;;;.m...ifr,,,,,
»ii««vr«, tlie i,iiestii.i, a.s U, "\.. "'.''"l"« "I- the
niniliraiic.s, waNuiiMWereij i„ u. '''"■''^•''"■" "f in
,„l;i,t tile land on which I'uV'/^'''',''''' "'''■''
itiri'il «too,l «as inortM,,,.,! . ,,'';• '"'">"■« i„.
rtiilt.iltllc|ioliey. not onhfis^,/,!, '•,*'''■''' "''"
U.,K..toam,tlierl.iiihli„j;;, /''■■'' l'7'-.I.M.
Ullu' Miort.-a,,... ,ilthn„„j^ so ;,'>'''' '••""' ""t
Liu'ii in rripeet of ..ach"),,,!,,; ;'" .^"'".-'/ver,.
U„<.,„m h,<t,;,-t Mnhmf 1,'^;. '''•">■'•!/ v.
"".""tl' "h'thcran, ;" "f '"^^ '•^'"'Nld diiiaro
"r ini'iinil,,,,,,,,,. i. Vv ' *' ''''t "th.T, inMir,
i;;:;;;': -' ^-.•u",.^^;::;;;:'-".i.^«a;;:;;
f»,. l\ (.1. I). ;;.-.
Tiii'lliiiitills eiiij.Ioy,.,! ,„,„ ,,
Wvr,iiiiio»ay,oi,ra:,.|.,,i „.,■.,';■,' '",' >"^">rance
kefctaii iiisiira,,,... „„ the, •,,■"' •''■'^•"•'^"ts.
N''«'"»-'nhe,'e E ' ' 'i^^^
li«"(.i|i),lic,tio„ i„ 1,1, ,T' •'" V''<'y «i«ne.l
«'-l'l^'liMthca ,.ii: tn"^
««iKi,,uhiclihel!.t ,;^•^'H'""'^'""'•
»'^,wlloalsoacte.ia. |.;,,.'-''''-''';'l'l'''i''l
kiyinmiectcd with tho ,lef, I "■;■""' "■'■'•'^'"
tat..,iti,ea,,,,lieati, ,;''''','■'' =■■'''''' '■
^.^>d,,,acl'c,!t!.,|^,.. isk .t'^'';'''"'.t.s' ioeal
Num. Tliea.'cnt th,.. f ■""' '-rn'M-ed tl
^•«';ti.niea,r.i:,'' ,;;--'V''tln.a,,,,,i.
''■""'"'.' "herea.. it u ' ^'"'' ■'-•'Hmtcd tl n
I r!
'■1/^ I '
1819
INSURANCE.
HuM, on appeal, affirming the jndgnicut V)e-j who, therefore, could not sue tl
1820
low, that the iilaintitF liavinu insuretl the barn i the ])laintiS's replieil, that aftor the irws i ti
as apimrtcnant to liis freeliold, and clainiod for 1 policy had been sustained, 15. assii.'nt.il t \]
it as such after tlio lire, he was precluded from j plaintiflfa his right of action fm- thi"ii.||iv,.... t
setting u]) that it waa a chattel. ,S'. ('., in Ap- i the money payable therefor, and tlir su,l v' '
peal, .S.3 Q. P. 1. ' l.m'n.r 1 r..ui,1..iif n( +1,.> Vtnf,. ..t \- ,. I'' ""t
See liiiim v. Coiiiiiiiirlii/ Union
Lomlnii, 2(5 Q. B. 552, p. 1845.
being a resident of the State nf Xtw V,,rlj .i
A,^. Co. o/-!ljl'"''*'ff^' i» acconlance with th. laws „t\C
- State, sued there m tlieir own iianiis us .s 1
assignees, and recovered judLrniciit. as'l,v tl
laws of said State they had a lii^ht t(. I'l
(e) A.'<.->l'in„irii/, AlUmilhm, or Inciirnhmnivof the J^"!''- "■.g""'! replication, f<ir drlVii.laiits liv'tiilir
Sii',},-,-! Inxiiml, or of tlo- Pulir,,. ««t9 of incorporation lieiiig evid.ntlv .ksi '-iKd t„
carry on the business abroad, aihl liliii,, 1? 1 j
]\r. li;u mg insured with a mutual company, Habfe on policies issued in the riiit,,[\t,i "'''"'
assigneil all hi.s interest III the iiolicy and i>reiiii- idsewhere, it could not l)e a^suuicl tli t tV"^
ses iiisiuvil to !'ie iilaintills by w:iy of mortgage , ,,olicy was made in I'pjier I'ana.ia iinl if ,n , i
to secure a debt, and the iiolicy was duly ratilied | \ew York the law there wouhi '
to tliein in accordance v.itli (> Will. IV. c. IS, s. "'
18. A loss liaving occurred, the plaintifl's sued
in their own names as assignees, setting out the
lii<irtg,;g(' in the di'claiation. llcfend.infs plead-
ed - .S. That the ilcbt ilile i\w. ]>laintili's was less
than the Mini insured : that the assignment w;s
to secure the debt ; ami, as to any sur]pbis.
111
Hagarty, ,1. - I he a^'sigunicnt of tln' li-ht ,f
action after the loss was not a baai-h U th'.
condition ; ami the ri.izlit of the iilaiiitilN t.i sue
ill their own name by the fni(i^<n law wi; i
question of procedure, on wlii.-h Uiat'law i'mU
Hdvcrn. U'liyilill (I, a/, v. /',■.,(■; ' ' "
iiti-iiil Ji .i I ,,
. . , 21 (). H. ()12.
lilaintills held as trusties for the mortgagor;) \,> „„o; „.,.,., f „ . r
li i 1 i- ill M • 1 ■ ..<„■' -1" assignee ot a policv cannot sm. .m u ;, i
that betorc tin- loss, M. insured iii .■mother c ice ,„.„ „^,„ " .., „ / ,, •' ' "'""t siu mi it m |,|j
,■ ..-,,,, I • 1 1 .■ 1 i 1 1 i- ,: own iiaine, althouuli tie coiimaiiv .iiM ti. .. i
lor t. )()(), winch deliiK hints had no notice of, + ■„ j r., n i ,1 :' ".' ■'~"^; tlnaliy
1 i. 1 i 1 i> I -iM ! to iiKlcmiiitv tlie assured and us ass i:ii.i ;;
and never conscutdl to or aporoved of. 4. hat , ,. . ., .. ,. >„^ ,, ,,.,, ,, "\.''' '''fe">. l>-'m,r
If.., , . , !' . . ,, , , 1 '^' Anchor lii.f. (<!., I() tJ. li. 185.
before the iiioi'tj,'agc to iilaiiitills, .M. had niort- i > > • '"•'•
Declaration, on a iioliiy of iiisuian.v mi,I, tol
planitilTs. .Sucond pica, setting out, aiii..ii. „ti,Br|
conditions, that if after insiir,.iuT rtlivt,,! tliel
apiilicaiit encumbcreil his proiicrtv by iiiint mv
such ciicnmbraiice should avoi.l t!v ' " '"
less notice thereof wen
]uaiiinirs, .^i. nan niori- |
gaged the iiremises insured to one It. in fee, who
afterwards eU'ected an insurance with anotiier
eonipiny without the knowhilge and consent of
defendants. Lastly, that before .M.'s iiioitgage
to lilaintills he li.id iiioitL^agcd the jiremisi's in-
sured to II. in fee, which mortgage is still in
force ami uns.itislied ; Held, ouileiiiurrer, third
and last ])lcas good, fourth plea bad ; for .-d-
tlioiigh the iiiortgajje to l;. mentioned in it would
form ;i good (It tViire of itself, yet it was not relied
on for that purpose, but stated only as incident given to defend.-iiits :- Ibiii, pi^i hau : m. im
to aiiothur and iiisiilHcicnt defence, vi/., the , the condition set out iii'iilivd only tn ii,
second insurance by 1!., and therelore it could '"-anees c-vatcd by the ,a)iplii' iiit, nut Lv lii
not bf I'.clcd on as admitted by the demurrer, sigiiee. J'ir/nirihoii v. rc„ihhi ||',.,' /•,
e.1
alter the iiisuiaiice, and after :issi.'iiiii,.iit „;
insured premises and the policy, :m,l liciVr. thj
lire, the assignee encuinliercd tiic saiil un:; sa
by mortgage, and that no notice of tlu-raiwi
Ver Cobinsoii, C. .1. 'I'lic IDIli clause of the .act
iip|ilies only to absolute alienations, and the
plaintid's in this case, as niortg.igec:-, were not
entitled to sue ill tin ir own iiaiues. I'er Mel.caii,
.1., aiid riiirns, .1. They were so entitled. I'er
Itobiusoii, ('. ,r. A mortgage by the insured in
a iiiutu;d insur.ince compaiiv, without cousiiit,
will avoi.l the (lolicy. /liulon il itl. v. (Ion
l)h<l,-iil M:itu,tl /iiy. <.\i. 14 ti. B. ;(I2.
Where ,an a.^signmont had been iii.ide of the
jiolicy to a iiiortgigce of the property with con-
cnrreiice of the eoinpaiiy, after Viliii li the mort-
gagor ell'ected another insurance without the
eoiisi'iit re:|nired by the policy : Hold, on the
]U'eiiiises being burnt down, that the policy was
not void ill ei|iiity as respoi'ti'd tho mortgagee.
iS]iiagge, \'. ('., diss. : -Held, also, that on ]iay-
iiig the amount of the debt the company wis
entitled to an assignment of the mortgage.
liiirloii V. dorr /)lstr'nf Milt mil Firr III", f '<>. , 12
Cliv. iol). Aliiiiueil on .\[ipeitl, 21st January,
1875.
Mntiiiil anil Shirk liii, Cn., Id ( '. p. .i;;ii
One of the condition'- of a :initii,il
])rovided that, in ease of ival t:A.\W iii»iii'ei
and a mortgage given to the iusiuv,!, (In .,,,
gagec might continue iiis iiu.iv.st liy ^i,
notice, itc, and that "whenever any oiir l.cfl
after insured sliall aliiiiate cuiiilitiiuiall)
iiiortgagi', his policy shall Ik: m.hI," unless v.
ten notice tliereol be given to tlie l)ii:.i 1
directors stating the aniount ami tn wlmiu i.ioj
gaged, who should have powtr tn assml
cancel the policy : Uild, looking at tlio ciui
tiition and working of iiiutiial Insiiiaiici. •.
panics, that the alien, iliou rduiTuil t'' w.ial
the land on which the pivmi.re.-* iiioirucl m
situate. />'ii.^/< v. '/Vic Miiliuil t",,; 'iin. i'%\
< •Hilton, 2'.l g. B. 7,'!.
(,>u;ere, as to tl.c meaning of '.lie v.ci'iis "hej
after insured." ///.
1 The pl.aiiitiir had insured a ln.ii.sfaii'l fuinitj
1 in separat" sums.
The land on wliicli tlic iiffl
stood had been devised to his w ifc ; aii'l :i in
To an action on a judgment recovered in the j gage in fee was [iroved, of which no imtiiej
Supreme Court of tlic State of Now York, de- I been given, executeil liy liiiiis If, his wifu j"ia
feinlants ]ili'aded that the judgment was on a "
policy of insurance made by them to one B.,
wliicji ciuitiiineil .1 ]irovision tli.at it should be
Void in case of Ik i. c assigned without their pre-
vious consent in wruing ; and th.at they never
consented to any assigiiii.'ut to the plaintiti's,
to bar dower, after the iiisiir nice. It \\M\
proved when she was married or ".riuinilj
property, so ns to shew wlicthci' tliu M;il
VVomaii's Act would apply: KcM, tli:it]
policy was void ; for unless that act
his conveyance won," I pass a ficchoM iiiuia
1820
111 not sue thorooii. To tl,;
1. that after tho Us „„ tl ,
.stained, H. iissiun,.,! t„ tho
of iiction fnrtlu. rwdvcrv of
therefor, and tlif s:u,l |i ',„||.
the State of Now V„rki tho
lance with the luws ,,f tlit
in their own iwnu's as .su'ch
ivered judgiiifiit, as liy t|,^.
tliey liiid a ri,;.<lit U> l\u-^
iitioii, for(h'reii.'laiitsl,vtl,',,ir
iil)eiiigovid,.ntlydisi;}iKVitu
ssahro.id. and laiii',' aiTlard
isned in tlie I'liitdl State „r
I not he assuiiinl tlmt this
L jijier Canada, ami ilmu,i,m
iV tliere would ^'„vcni. |',.r
aHsignuK'nt of tlie ri^-ht „f
)ss was not a liuadi i.t the
I n;,dit of the iilaintitls to sue
e l)y the forcij;ii law \va., a I
ure, on wliidi that law iim^t I
>t al. V. J',;„-;„t},il /,,.,■, I,
policy eaniiotsiieniiitiiiliisj
h the eonipuny a..;r(f t!RTi.liyj
sured and hi^'as^i .u-! yj',,,,,,.!
I(i(>l. li. IS.-). ^
I poliey .if iusuiTjico iiu.lot»|
plea, !-ettiii-..ut, ainiiimiitlief
after ilisunaiee etVei-tnl „„
red his property hy miirtj;ai;e,
i<ho\dd aviiid thu"iielic\^ '
were i^'i veil. AvrniKMit,'tli,i«
', and after n.ssigiiii|,.|it nf ;h
ml the pehey, ami hcfi.ri- '..„
■neiimhered the said piviii-ia
that r,o notice of t!u'::ia\Mva
ts ;— Held, (ilea had : liiriiii
out a].plied oidy te emun
r the apiilicint, iiiit hy liis
'III! V. (.'llllllllil \''i.<> l-'ilfllfl
fii-:. Co., i() ('. I'. 4;io.
iiditiou'- of a .luitiial
case of real estate iuMin
veil to the ilisui'eil, the IIUJI
.inue iii.s iiiv^Tcst hy j^ivii
lat •' w heuever any (jiic la
II .-ilienato eoiiditiimally
■y sii.ill lie vui.l," miles.s wt
t lie given to the Imai'il
lie ainoiiiit i.iid tn whuui luo
Ul have power to a-ssiiit;
- Hehl, loekiligat the cc.iil
11^' of mutual insiuaiiLc ofl|
alienation refeiTcil te \vj
1 the pivuii.-es iusinil
77/.' MiUiiiil F;,\ ',(.*. t'u
3.
! ineaiiingof the wnnls "h
/*.
il insured a hlill.^^'alvl finiii|
The land nu which tlii'
vised to his wife ; and a i
■lived, of whieh iiii net
;ed liy liiiiis If, his wife jii
er the iusuriiiee. It wa
wa.s married or aei|niivilJ
io shew whether the M:l
mhl apjdy : Hehl, tli.tj
for unless that att a;i
)Uj 1 pas.s a freehold iiK' i«
1821
INSVRA^tfCE.
pbiiitifJ: with defemlants' al' f *''\,I'"''''v W
'Mitmiied interested to .s->()o,. „,,:,■, !.'' ; ^''-it N.
'"•'^•'"'"'"f the loss, w , i ,; "f'''^^''!'!. and
»iilam,.init so insured Z . "'''''•''t^^'' therein
A 'IVn. after .setting out tle!oss"> ^''"''"^ f'"'
I 1 1 . •' ' * " ^ ' * ■ t ( I 'HUM ,.■ , p
llS'ii. hy lil.imtifr. /.'eiili,.., ; -'■' '^'''- ■ "■ .,
!'t tif'thcfore Hie ;.St ;:';;:;,;"" ••■''"'■'''•«
:en4mtV assent, duly asshV, i,, " 'v "■''"'• "'''f''
to:niv,ishron-ht hv' pl-iin'tiir „ . " ''""' the
■/""tilf on this „j,„.
""-■-.ts.see„dn ""'•^•'"•"'<^' '"'■■'--■
H,,„l.' r ^ ""•the
■See V' ".^■- '^""-"'^
I'onds, notes,
'•-■''ts and docu-
111 a evueral
'■le-. of to ''■"'"■■^' •■" f'"' tin .;•'"■'' """""■•■•nt
1?()
I u;„)i nimn a policy ),y .\ x. ,. ,
''•'''■'™»'"'t--".-!endorso , ;;l'•'''''f'-
rtlichenelitof M. ;t P pf '^ •-''"'"I'l .^t:„ld
twuit^e. Thep,di,:veoSn l"^'"'' ^'"'
«:»^toh. nude hy A t, ^^"''^■■^••l""•-
:,'^vu,thea...„t•^f ^ , i'""^*-''"t
l«*rived,l..t Ai. ',;!;? f''-^'I''«-.t
li^xKilckei.t hv Idni and o V .t''">-^-ictioi.
^^.l„fcat Ar!"i;'''; .':';"""""^"ito,i .vif.,
i" ill! action ,„, .,,;.., , ,•
;^J, ^I' a condition j;,, --!;;;>■. tl.e defendants
"no, T"'"""' „„„.j _^" ' 1 the p„I,,y, that
. '""--t he „o,
■'''-'' S;ii;;t:;T^::.*i-i'''!''y^!Kui,,e void'
''t-'lendints's..., / ' '*'"' '"^'i e,I -i l.tf.i ,
f -vin^ thai it , U , r*^ I"««"«. -itLi^t
tr :Sr';- r^'', ^'- -"^i'i::;r'"*yvv-^ -t
.S7ti.
'-■t'luvitio,,
'lilted o,,„is^^J--^m,t: ^h. a ,ir. ,,.,!i,^
!'^^\'^l; allegin. t|.4 '' i ^^'' '■","'"ti"M for ro-
^'I'feat Mo t,; .'■;';"';"""^''^^^"' ^vit.,i;'^^^-il; allegin. thit ' y '■"'"lition tor ro-
■■':i' .iiiew ,oi;., ," tr.uister of I'le , "- '''™"^' in.s.dvont v -'"' ^'iH'iary, l.s;'.
''-■'■'■'fite,i: ; t,:A ;; ^'"■' ""• i-iiey !,7'^''.v.ut,,re.rti.d t ' ■ „ ' ^"''" '"' ''«-^ "■'W
^'"''"'^' 'i^k If Irl'?';, ■^'' "''"'■'••■"'.' I ' '•'",''"'• '•'■•^ .tssi. ,'*,"''' '«'•'- "l.eroliy
.,i;.:.,... . . .'""'• I'lat this . ,,.;.! ' lVco\-i.,. t ,., ;.. ' '^'o'" *•, Oecani, ^ui , .■>
"Wi'Mjtional i.rcmiiini to M f ,
»<»•'• the risk: Uvhl (1,^;. ''""■'' '"'
^'*«tto,a,st.u„t le, f''''r''''^''''>^
H'M, also, tic t , ' ";■■ '^'"- t''^' I'l.-mi-
Ptl^-dnrtiosforu 1 1 '■''''■■'*''''' '-'' H
yt.isZi:,fc:r;';:'^ti'-nitw-as
iL, ■ '•■Ki'-epoli,
»'Wintio„ alhweii an
S,llli o' till' io.,.i. ..t ■ "" sooieiic or the
^^'•t-avr'Shtr""'*""""'^
'■'^■'■'■^^•Hiei,,.s,;, ',.'^;;^-^'''t."f.iofen:
••'-"iwt to H * ,."■"';•"'"' I'l' ■I -Icnie,
^"- Astothel;:.:", ,'''''':"''^'"t-s'as
tf- Plaintlli- ;r • •'^'' ^f^'
, 'V'''>vcr the insilrane !^'r,"''"' I'T'""'' "^^^Mcd to
1
''"'«'5-'^i"solvcnc; ,n,I : ■ •^"*'' l''"^^-- '^ver-
;:" ''"^ ^-'th .[anna,T |S7- ::^;''r'"^ '^" I'l nntitr
>r--xi-irds '";-•-'■' th
^'-^andsotl I th ■^''^'^■'■''^■tl''''
hie re;die..f;.."'.'Jl"'''.0'w,vsa':,iMen
' ■"''■""'"'-■ "•. "ndcr whom
tint the
"'ciniuiiis,
'■-'ipiita-
1823
INSURANCE.
1S24
lUs'.l. 1
plaiiitiir claiiiiH, duly I'ivid up ruiiowal premiuma ' the assiijnment had not been in:vlc :_HeIl ti
to (U'f«Mi<laiitH, who acci'iited, and gavu thoir | the policy was avoided l»y (i.'s ,ii't as •■"'''
the plaintiff, who omdd rei-ovir uiwiii it ',*'f"''''
ri«ht of a. Smith V. \!„.i„.n />;,,,,■, '^^J']
sitting alone. Not yet repented.
Burton i\ (!ore Diatriut Mutual Ins r i,
Chy. l.-.(i: 14 (^ H.Hl-2. .■o„„„,.„t,.,i „■,;„;•' i
distinguished, \ipoii the gri.iiniU ii|' tlie (.1 !
since made in the law as to assii'niii.'itnf l'"'"
in action l.y 3r. N'ict. c. 1-.', ( »., and „t tl„. ,,' ','^,'!'.'
conclition in the assignnn iit, and tlu' iinvi ^'
of tlic .S(> Vict. c. 44, s. :{■», ()., r.-lutiii-t., ""
ranee companies. //). °
Tho plaintill's sued i'.s assigiic(M nf a i,,,] ,.
eH'ccted hy defendants with cine H. fur' s't 1111^
alh'ging that after it wa.s executed ii. iii(,it ,, ,.,11
to them the pi-ope'rty insured t'ur .■^L'.Otm '1 '||
assigned tile policy to them asedjlati.ial .<'.,'in;tvl
therefor. .A loss l.y lire was tiien aw^rr, il. iiii,l tliVj
full amount of the poliey claimed. Ituiv-ii.laiitn
))lc,ided thit the assignment "'as c(iii.>ciit,il to
hy them on condition tint the plaiutill' shn
lie lioiind hy the eonditioiis nf tlii> ]i,ili,.v\|,
was, and that it should euutimie vuiilnl,;.
though the assignment had not hecu cxirir,,!
and tlicn alleged ;inotlier iusurauco c ti'.ctc.l !
H. witiiout ih'feiidnnts' consent, enutrarv t.1,1 , ,,
dition of the Jioliey, that no otlier 'iii.«iir:iii
should siilisist upon t!ie insured |irciMi.-ii>«it||,,a
such consent. The plaiutills ri']ilit'.l tliiit r
alleged insurance wa.'- not of the sail i
as that insured hy f'l- lilisintills, aiiil
eH'ccted liy or with the jilaiiititl^
.uithority : Held, no answer to the iilca, ,iii|
that til.- iiolicy was av(.ided hy 15. 's act, fnjiuuin
Smith r. Niag.ir.i Distrit't Mutual lu.s. Cn., sii|u,
Ml i'/iiiiiii:-<' liiiii'l'iiiii tnitl Siiriiiii-i Sii/tiliix, Cifi
hislrirl Miihiiil i'U''- /iix. Cii., {). II.— icth >ej
tenihcr, 187(>, (!alt, .1., sitting alciie. X'lt yj
rejHU'teil.
In anotlier ri>plic:ili(in tiie iilaintills al! ;;(
that the assi !;nment was not on tiie tcriib th
they siionM lie li.uiiid hy any eiiiulitiiiii.* wiiii
woulil avoid the policy hy ji.'s acts, liat th
tliey lieeatne entith^d to all the ri;;lits luidcr
siil)ject to all the condiliouH of tlic |Ki|i.y|
which H. Iiad liecn entilied and sulijtrt licfa
the assiu'innent, and tliat the insuiaiiiu all
was not eH'ccted or .'luthoii/iil hy tliciii :- H«
on demurrer, that the replie.-.linu \\;w liid ;
the plaiiititl's in their dcclaiatiini liad aN-er
a right to the whole policy ,1; umki aii ali.vT
a.Hsignment, when it w.is cle.ir tint Ii. mm*
iiiterestcil, and tint as to liini tlie iieliiy
Void ; and the plaintill's sliould have travel!
tiiu consent alleged. 1 1>.
See .}f!'(ll V. IW.itrni fix. d,., ]'.) V
p. ISilO; l.">7, // II If hi II ■■'nil V. .\';"v''" I''*
Mnliiiil Fir. Im. r„. (,t. It. T.' T. ISTU
18.'J8.
receipts therefor, declaring jxilicy renewed, ite.
which receipt h. delivered to plaintit}', who
adolited his act : Meld, reiilication good, for H's 1
])aynient in rcmw.il, and taking the receipts in
his own name, would enure to the henelit of the
estate. Uichmil v, I'ruriiii'iiil Inn. Co., 'J4 C ■
R 157. I
■Where a lire policy .ifter a los.s had taken
place was v.'i'lidly .issigned to a creditor hy a
person iniusolvei:; c'ircunistanci'S, in satisfaction
of a debt not yet due, and in consider.ition of an
advance of mmiiv ,it the time, tiie .issignmeiit
was held voiil as a fraudulent )pri'fercni:e within
theC. S. r. (". c. •_'(>, s. IS. liiiiik of M<>:ili-i'<il
v. M<-Titi'i.<h, ].'{ fhy. W.Cy
A hy law of tlie company (.N'o. l(i,) <icclare(l
that lertain eircuinstanceM woiiM vitiate the
Jinliey unless notice were given, the coiisent of
the ho:'.rd oht.iineil and endorsed on the jiolicy,
ftnd signed hy the )iresjdent and secretary. One
of the eircumst.inces u iiieh the hydaw deidan'd
would vitiate the policy, unless iiotilied in writ-
ir.g to the sccret:'.rv, consented to hy the hoard,
and imhu'sed, was that "of alien. itiiig hy mort-
gage or otherwise, or any change in tlie title
or ownersiuii of the property insured." A few
days .'ifter oht:iining I lie lirst interim rceeiiit, the
Jilaintiir niortg.iged the Jifoperty, which he iioti-
lied verK:dly to the agent, w ho was otherwise
well aware of the trans.ictioii, hut no notice in
writing was given to tlii' secretary. Held, that
Hiich v\ant of notice in writing to the secretary
vitiated the |)olicy ; liut ipuere, what the con
cdiision should lie if notice, though not in writ-
ing, weiv traewl home to the i-onipany. Ilinrb'
V. Xi'i'l'irn hilrirt M;l,inl Fire /'111. di.. 'i.'l
fhy. i;W.
])efendant.^plon(l(;d that a certain enenmhraiiec
to the Loan and Agi'iicy ( 'om|iany (lieing a mort-
gage for a loan olit.iincd hy the plaintili from
that eiiinp.any) \\.is cie.ited liy the )daintili' \\ illi-
oiit tiieir written consint as rei|iiircil hy the
policy. It .iiipi .iied that I'"., di feiidants' agent
who took tlu' plaiiititl's application for insuninci',
al.so olitaiiied the loan for him : that he witnes-
sed the aisigiinient of the polii'y to tlii' mort-
gagees, and sent it to defendants' gcner.it agent,
wiiii .assented to it in writing ; and that after the
tire defendants Were told hy tlu' eomp.iny that
they had a claim only to tliC^KM) insured on the
huildings, wiiiih they s^-iit to t!iem hy letter :
Meld, that defeiiilaius sending the money hy let-
ter was a written consent to the eiicumhrance ;
and that tiieir assent to the assignment of the
liolicy was evidence (.f theii' assent to some trans-
fer of the property, which would he essential to
tlie validity of the assignment, /liiznril v. Cnn-
ii'lii Aiii-intlliniil lii-i. <\i. (»». H. T. T. 1870.
Not yet reported.
One (i. insured two houses with defendant*, a
mutual insiinmee c'ompiny, ;ind then mortgageil
them to the jihiintiH', to \\hom he assigned the '
policy, \Nitii defi iid.ints' assent. .-Vfterw.irds (i., '
in violation of oneuf the conditions of tin? policy,
executed another mortgage to other persons, of
which no notice was gi\cn to defc!ndants. '["he
a-ssignment to th-.- plaintili was upon the ex]iress
i!ondition tint the plaintili' shouM lie honnd hy
all the conditions of the ]i(die\', and that the
policy should continue to he voidahle lu though \
iaii'i' lilt, re
aiiil \vii> .,
kii.iwl.-,]. ,.
(f) Prim' iiii'l Siihii ipb 11' ///.<. iivi»i'i
One of the conditions of a iiir.tual l'"li }'■
" that in ease insuraiici' shall •^iih^i>t nr 1 1
ted on the premises or property iliKiiici 1
c inipany in any other oliici', or Innii, li\ ■! 1
any other person or persons, diiriii>; tlu
uaiici! of siicii insur.-iiicc, tiie |KiliiV
thereon hy the comiiaiiy shall lie v. 1 . lU
m:
2U iukIo ; -MtW, tlist
ly *;.'>* act ;is iiguiurt
;c(iver \i\iim it imlv ii\
■ni.ird h'isirht M,',',i.,l
iVfh, ISTii, tAvymu', .1.
;Jl()lteil.
;t Mutual 111?. ('..,, V>
Odiiuni-iitnl mum mi'l
j^vouiiiU iif the diiiir.'.!
til as^i'.'uiii'-T.tiif (.■liii<vs
'J, ('. , iW'liit tliu oxj^ri'M I
ic lit. ami the Vf"vi*i"ii.4 |
;V,t, t).. ivlatiiig t" iiKi-
(1111- r>. t'"i' sH.iHiO, I
l^i5
'.I as-
witU
i.;^ oxiM'iiU'il l'>. liuirt.;.\.i!ill
insiiv<Ml fnl- ^-i.lHH), uwl'l
lu'iu as foUiitiral s"fini'
wastlifiiavurnil. ;um1 th*
iey I'laiiiR"!. Deii'ii'lm
rniiiriil was ciiiiM'iit. il t<v
" tlr.it till' v'aiiititl' sli-'ul'
Utimi-i of the |im1u'v :i- 11.1
ulil rniitimK' VMi.lalii' .i»|
it lia>l lint llfUll CXl'lH*.
r,lii:i' iu'^uvaiu'i; i tlVotivl
i'cdiisuut.i-niitraiyt";!'
that 1111 "tli'-r iii>"i:ma
ic iiismvil (iMui^i'switli.it
iilaiiitilVs ivjaii-'il tliM tlv
v, iKit <if tin; sair<! iiit''.«
tlie plaiutitlV luuiv.l.a: -^
,„ a!is-.vr.' til tlio v'.;;i. ^'i>
,v„i.l.'in>vH.'sact.li.llH
stru'tMutualliis. <'"-.->iVfl
,1,, sitting alMif. >"t y^
diiiii th.' liliui'titl* "H
was imt on th.> t.rin- tX
i,l \,v .-iiiv .■iinditioiis wli
,;„,,.• liy'lVs acts. l.attH
a inalUliitn-lit^'""!;''
..„n.Uti">'-* "t tl»- \»'H
,.„t,iiriiana.^iit'!'-'- ';;■«
I that til.' iiisiiniK- m
.uthiiri/i'n.v tWrn : - W
the ,vvli..-t"."'«;'V J
l,.l•la^atlllllllalla^-^fl
iiU'i an ali>"
lie
lii'il- il>iii
ilicv
ht Nvas I'
li^.u- tint
U. \v;i*
It as
til liiiii
till' 1'
ill.'V
1 1 ill's
itrril
sli.iuM liavo tnivc
r.ic. 1'.
\ti-lii
,Y;.ii;iini
/.;.
li^SURANCE.
182G
.S'll'ii"/^'
Itl.ilisii
■aiu';
/)i.<,ir'i«i''
f a iiiv.tiial !«'!;
lialWiil''
st or .
„• proii'
VtV illSllVl'l II,
llier 1
|r \i
till.'
■rsiiiis
ii- Iri'Mi
ihiviii;
Isvii'aiK'i'.
Imiiany
till' I'
^liall 1"
anil affidavit after the firo, wlicn he swore ta tlie
existence of it, ami mi tlie secoml itny after this
liefemlants niaileil to him a coiiy of their resolu-
tion avoiiliiif,' hi.s imliey. It aii|ii'avcil, also, that
the jilaintifl' hail elaiiiieil iimler the jiolicy ai;aiiist
the other eoiiiiiaiiy : -llclil, tiiat tlic jil liiitill'hav-
.h ilmihle ii'surance sulisiat wit!', the consent
Tthe iliivctiii's, signilieil liy emlorsement on the
1 wkof t''" liolioy, .signeil liy the iircsi<leiit ami
Ktiry." It aiiiieareil liy the pleailings that
w separate siiiim were insureil- on a Imililing,
I the iiiai'himry anil on the stock in it ; ami a
,iil iiisiiraiiee, without the consent of tlie . iiig elVeeteil an insurame with aimthir coiiipaiiy,
'^ ninv was elf'ecteil on the Imiliiing ami nia- j which from all that .ijiiicariil was hiiiiliiiif mioii
"f" ,'|.y".LHi'lil, that liy tiie comlition, ami by i them, ami liaviiig failcil to notify iKfcinlaiits
\ stitiito iiiiiler wiiich these comjiaiiieK are ! thereof, ilefemlaiits were iiit lialile iimler their
"' irimnitcil. tile I'olicy was altogctiicr aviiilcil, iinlicy, wliich they hul tlie right to avoid even
"'l lilt III "rely a.s to tiic luiiperty so doulily ■ after tlie lire. /{run' v. Oorr I)l-<fni-t Miitaal
Ll— Held, also, that it was iniinatenal ; //ii. Ci,., 'JO C. I'. 'iOT.
lihatsui'li siciiiid insurance was ^^ltll a torcign
i ,ml<uiv, an<l tlierel'orc not capalile of being
r •' I'lifiv, for the condition iiiteiids an iii-
1 ' j„ fact. t.Mia'ie, whether it Would make
I '.lirteifiu'c if the piii|iertie.s were wholly un-
IwnfOteil, so that a lire in one could not iiossihly
I jjinjjf tlie others. J'lniiiin/ WikiIIi ii C/u/li
IV T. 'l'- ^^M
livrl
till'
It was a conditioii tint if the insured shmild
make any other iiisur.iii'e on the Hinie iiro]icity,
and sliuiild not notify ili'fi'!idaiits. tlie ]inlicy
.should cease. It aiipearcd tli it shortly ln'for,' the
lire thv-'iiisured iiiadti nii a|i|)licitii.,.tiitlie Provin-
cial Ins. ( 'o. for a further iii-ur.iii" '. of .•>!|()();), ami
olitained an interim rerciiit thenfor. The v.ii-
ji.|,wi!cr iiic "'',,, , ,;: , ., ,. ,, olitained an interiui rerciiit theritor. I he v.ii-
1/ ,i,i,'iiifiiiii( i>. V. Miifiiiii rill Ills, i I), lit till' I I-, I' .1 • ■ . I- L 1 1 t ii 1 •
](,ii„i(i(i f I" "';/'• '• _ J ' dlty ot this receiiit was disputed, hut the iilain-
pn'i«f-l"'"i'''""'>'> ' ' '«'' _'^' •""• ; tilV had taken iirnceedings in ( 'hiiiecry to coni-
\ iilea iiKM-ely .'lUeniiig that the |irojierty w.vs \ \w\ the comjiaiiy to issue a jiiilicy : aiid h id, in
iiiwliii .innther ollice, is had ; the iiarticulai-s | lii.s (ironfs ot loss, sworn to this additioiid insur-
It.i.. nllniii.il insnranuu inn.st lie stated. Il>. i anee : — Held, an insiiraiiei' of wliii'h nntii'i. «-!ia
lithe.illcijuil iii.siiraiiee nuust lie stated. Ih
tne I'diiilitioii was, that if tliere should he
|,v iiwir.uic^' at any other ollice, notice .should
Lwii, ami the same endorsed on or stated in
fcimlicv, iitherwise tlu^ lii'st insiir.uice should
Lviii.! ; -Held, that an iii-<uraiice eH'ccted in
L'Ji.riiltic.' liy an interim recei|it, was within
kdiuliti'r'. //"''"" V. /!<'ICnll /lis. Cl); U) Q.
luiii.
ie iil'iiiitilV's |iiiliiy eont lined a eondition
iliii.'tlicsaiiie if ,iiiy ddiilile insurance should
,.Ktwuliiiiitdefeiid aiit-i' coiiseiit. The plain
iiitln-r, witlioiit )ilaiiitiH"s dire
mi
aneu : — Held, an insurance, of which notice was
reiiuireil, JIitKun v. Aii'lis /ii.<. (',,., •_';{('. I'. .'17.
See. 28 of (^ .^. I'. ( '. c. .V.', makes a jmlicy
void ilile "if insurance on any housr nr Imilding
siilisists in the ciiniiuny and iu any otlicr otliee,
or liy any other iiersoii at tli .' sinu' time," with-
out the consent of the coinpaiiy ; and it was a
condition of tiie iinlicy tlia'. .v further insur.uiee
I liy the iilaiiitilV, or any other jiers in, slinuUl
I render the policy void : Held, that the further
I iiisur.iiiee must lie liy the s inu [i, r-.on who has
liofore insured, or in the s iiiu interest. tU'rliri.sf
IVUniHll*ieiei'U-llll.-, iiiii.TViiu. iiiw^'i.tiii- ,/v^nMV. 111. Till ,,;n. Ill iiiLiii;.-ibiiiJiiii^i-|i.::-0. ,,*r/rif.tf
;|irr, witlioiit pliiiitill's direcMons, paid j v. dorr Ditfrirf Mulniil I'ln /».s. ('i>.,',U i). I!, l.'i.
,„i,iiii fur an in.siiraiiee on jiart of the | .,1,,^ j,,,^ communicating at the time of the pro-
;,,,iis.s w'.th another company, Imt nm ,.^.,, ,•„. _.^,, i,,,,,,;^,,,,.^ t,,„ f.^..^ that there was
w.i>.u.d until alter a lire had cousuined ; ^,„ :„„„,,.,„.,„ ..,l,.„advi.tV,.,.t,. I with ..i„„H,..v ,.,«„.
iui'L's ;'.ii I the plaintilV receiviid the insur-
iiu'iuy nil the second policy: Held, I.
lt.MiiiisiU'aiiie hid in fact liecn elVected with
Ittt'iiiul cuiiipiiiy within the terms of the
ilitiiiii'J. Thit the pliiiitilV having' taken
kklli
an insuraiH'c .'ilready etl'ecte I with another com-
pany : -Held, not to he suelia wroiif.'fiil coiienl-
meiit as to sustain a plea of fr.iud, avoidin,' the
poliev. MrDoii'l/ v. Iliii-nii Fir,- <ii'.i i/,j',. .|.v,v.
('i>., "7 (-'. 1". .'lOS.
^iiitit'if such insurance, he hid'thereliy ! ^I- li'iviiig cll'e.ted an insurane ' with a mutual
W.tifeinlaiits' policy. /;-//o. v. ./o/uis'<.i/';i ii>^*»>'anee company, assigned all his interest in
'- ■■ -- the policy and prcinisos insured to the iilaiiititls
liy way o!" inort^^'ige to secure a delit, and the
Jiolicy w.as duly ratilied to them in acenr.lanee
with" (i Will. iW c. IS, s. IS. .\ loss h'vving
oeeurred, the plaiiitiiVs sued in th'.'ir own n.aines
.'IS assignees, setting out the inort;;ig.,' in the
cclaration. |)efc;idints pleaded, .'!. That the
bn.' ]lul.i<il III". Cl., 7 <'• I'- •'••■».
Heiiluialk'.'ed that the pl.iiiitill' had elYected
tier iiisuraiii'c. Tin! evidence showed that
■l»fev was clleeted liy one S. . (whose inter-
■iiitliv iiriipiTty did not ajipear), in his own
If, sn I .■wsi^jiied liy him to 15., to whom the
['< iiiti'i'cst ill the property had lieeii as
^hi. ""
km.'
s inti'i'cst 111 the property had lieen as- , ,,^.,,t ,,„^ t„ j,„, ,,i,ii„t,„',_ „.,^, i,,,, than the sum
Hill, thitlhe plea was not proved, for i„^,„.,,,,. ^^^.^^ j,,,, ;i,,,i ,„„„,,,t w.'is to .secure
irmro iniiiplimed ot was not ,«hewn to . j,,^, ,1^,,,^^ _,„„i .^^ ^„ s„nilus iilaintilVs held
f t„r the plamtitl, or of his interest, | .^^ trustees for the mortgagor; that liefore the
.-..liM h.. iircessary to avm, plaintill s ,„^^ y^ j,,^,,,.^,,, i„ ..„„,tl,er I'uliee for foOO, which
Ifcy. P.ir'.v. I%in,.r /,is. (o., li> Q. H. 110. i ,l,,fe,„l.i„ts had no notice of. and never eon.sen-
Isititlu' pi'iivisiiiti of ( '. S. IT. ('. e. .'i'J, sec. ] ted to or approved of ; 4 That li ■fore the mort-
itl'lkV pnivided that in ease of insurance gage to plaiiitill's, M. liad mortgaged the ]ii\'inisea
insured to one K. in fee, who afterw.ards ell'ec-
J"'li r iMiiipanics, notice must lie given to
blttl>. ;inl their .approval endorseiT on the
'j; Jill till' pa-iiiiig of a resolution avoiding
I'liiy, ami nniliiig a cii|iy addrcssi'd to the
!>1. siiniiM aviiiil the s une. .Vfter the issue
einliiy ill iliiestioii, the ]ilaintitl' olitained
liiiiitWr iiiiiipaiiy an interim receipt, liy
ithDv oiiiisiiliM'cd thenistdves lionml until
InuUropiiiliate the risk. Xo notice was
>ti iluffiiilaiits of this further assurance
ptlKV rwuiveil frnin plaintill' liis statement
113
ted an insurance with another eomiiaiiy, without
the knowledge .'vnd con.sent of the dcfen l.aiit.s.
Lastly, that liefnre .M.'s mortgage to plaintilFs,
he had niortg.vged the premises insured to U.
in fee, which mortgage is still ill foiei.! and uii-
satislied : Held, on deinurrer, third and last
]ileas good : fourth plea, had ; for although tlio
niortgige to l{. mentioned in it would form a
good defence of itself, yet it was not relied on for
that piiriiose, hut stated only as incident to an-
1827
INSURANCE.
other aiul insnfUoiont ilefoiicc, viz., the second i
insiir.iiice by I'., hikI tliorofdru it could not l)u
jutcil on iiH iidniittoil liy tlic dennirrer. Jiiirtoii
it III. V. (r'ci/v Dlitrict Mutual /im. Co., 14 Q.
ii. 312.
To a ])lc,'i of an insurance liy tlie plaintiff with
anotlicr crinijiMuy, without notice to defendant.^,
or endorsi'iiu'iit tlici-cof on tlicir jxilicy, contrary
to one of tiic conditions, tlic jilaintiH" re|diod, I
on eiiuit.dilc ^.'rounds, that he cfTected the in- |
sur;incc with defendants throujih X., thciraj^ent, '
residini.' at !•'.. : th:it when he etlected tiu" sei'ond
insurance coniiihiineil of lu' had not received
d(>feu(hmts' jiohcy and h:id no notice or knowl-
edL'c of Slid ciindition : tli.it as soon as he heeaine
awar(^ ol it he ^avc notice tos:nd N. that he hail
etlected the iusMranee mentioned in the jdea,
and another insuranci' with the M. A. Co. ; ami
that as the iiiNunnue mentioned in the ]>lca liatl
then liecn c.iMcellcd. the s.ud N. iir(>n;i.seil to
li.ive the insur.inie with the 15. A. Co. endorsed
on dcfemlants' |iiilicy, and told i>laintifl" that ,
it was not necessary to have the other mited, -
and that defendants' ]>olicy wouM still liin<l
them : til it after said notice, defeiidant.s noted
on their iioliey the insiiraiiec witli the IS. A.
Co., anil returned s.sid ]iii|iiy to the )daintitr^
a.s valid and siili.Mstiii^' : and defendants tjavc
no notice to the )ilniitili' that they considered
said liolicy cancelled, liecaiise the omission to
noti' liie insurance in tlie id^a mcntioneil arose :
from the nei;lci't of defendants and not of the
jilaintilV; tint :\t the time of the loss the Jilain-
tiir h.id no other insurance excejit that with
the I'l. A. Co.; and hv reason of the premises
d.'fcnd.ints waived the cndoivemcnt of the
insur.ince mentioned in the jilca. it ajiiicarcd
t'lnt the policy was made at tin; lii.ul (>tlice in
Montreal, on tlu; ."111 of .luiie, and sent to N.
ahoiit ten day.s heforc the lire, which todk place
on the 7tl. of .Inly. Init it remained with iiim,
not I.ein;,' I' lied fur liy the plaintilT. On the
Kith the pi liiitiir olitiinel tlie jiiilicy nlcailed.
Imt it was e.inecUed on tlie .'iotli. N. was au'cnt
;ilso for tlie H. A. Co., and i.'raiited to the jilain-
titFa iioliey with that comiiany ahunt the same
time as til' defend ant.-i. < In the -Ith of .hily liotli
those polieies Were sent to the respceti\e head
otiiees to h ive each marked on the other, ami
defi'lidant-' cdiisent was noted on the Mtli of
.tillv, and the iiolii'v retiirneil. The aj,'eiit knew
of the p<ilie'- ple",di'd heforc the fire, hut no! un-
til after it had hceii c-m>ellcd : Meld, that the
replication v.as not proved, for liie omission to
note the jiolicy w '.s not owing to the nei.dii,'ence
of defendants ; tin y were u<it aware of it while
it e'iisted, and it wmild h i- i' lieeii useh'ss to note
it aftci' it ceiHi'd. Hell, also, that the at'cnt
eouM not havi' waived tie forfeiture. H.'ld,
.".Isii. that the re)illeition s;ioiild not have lieeii
admitted, iind nii^;hl he struck out under the ( '.
I* P. A. Act. see. '2!t0. ./-/c-.//.-i v. H<iiiihil,l, /ii.i.
Co., 17 Q. I>. 3i<. See Siiiilh V. ('iiiiiiiii rriiil
I'liinii I U.S. Cii., H'.'f Q. n. (!'.(, dissenting,' from this
o;i8e on the iiuciition of waiver.
The jury, in the Inst cjixe, liaving a seeonil
time foinnl for tin.- (iliintiir, a new trial was
graiiti'd without costs, '{"he further insurance
having sniisistcil for fiuirteeii days only heforc
it waH eaneelled, it was argued that a reason-
ahle time niiist he allowed to give notice of it
to plaintill.-, and proi aire tiie endorsement, ami
that this was a ipiestion for the jury; hut.
per Burns, .T., the (pic^tion wa.t luit
n-esentod hy the pleadings, and tliu
1828
IT'ipcrlv
l:iilifiir
.111
n;vvmg given no notice at all, tlion,,),-).., , ■;
ample tune to do it, the ciuestiun of rc,a,s„i,. 1 1
time couM not arise. It wa«iiinten,l^.,i!j^, '', •-'
the second insurance was void, nwin,, t *'
omission l>y the |ilainlill' to ((',i,n,ly ,iitl ,t
conditions, hut held that it w,,s iieveVtln 1 . '
iiisiiranee within the conditinii in ,1,.|-, „?' ''",
policy. JllCoh.s Y. till- E'I'lilnl,!, Ill, I. ,,';
B. 2.i0. ■ •''■''■
On a third trial a vcrdii't was feiiiid fi,r 1.
feiidants, the learned /Judge having |.|,;„.„,,,'|' i "' I
the defendants h.id judved tlieir i,),.., .„ t ":
left it to the jury to say v.hetlier tli',' i',l.ij,','|a '
h;id given ni>tice to them of tli- linalK-i- ii'su,,, '„
within a reasonahle time. 'I'lic cmivt I,, n .i I
direction right. .V. C 10 (... |;. •.'.-,:. ' '""'
In an action on a policy i,f insin-an,.,-, thcK
fciidants alleged that aii a.|(liti,,ii,;l iii.,„.,iil'i
had hcen etlected in another ,.,,ni|)uiv witli„i,t|
their being notilied within a re i.<.,ii;l|,l,, tiine.1
and in a jiropcr niainier, and witlnmt ,^ii.liii.,
being acknowledged hy tliciii, there licin., ,
ditioiis endorsed iipini their pnliey in ;,, i^].,
with these (dijectioiis. It apiicarcd tli.it thj]
notice of further insiiraiKe st ited the aiiifnint I
be larger than it really was, ami giv._. tin- ii,:uJ
of the comp.'iiy in which it was c'llVcteil mi,,,,,.
ly : HcM, that in,i<iiiuch as ile!cnd.iiit< w,.
neither prejudiced iioi' misled hy the iiii^rkel
and no fr.iiid appeared or was alleged in s,, J
iiig the notice, the pi.li'v vis not tli "
vitiated, > h^rr v. /'r'triiir'nl h,.: c, \-
r. 1.33. • .
Sec, 20C. S, r. C. c. .-,•.>. a|,i,lic.steias,„.,,,q
on goods as well as on biuli|in.,M. Tin. nn-j,,,
additional iiisiiiaiice tluMc retiiivil to iMiiii.,tl
given after the destiau-tien ef the geeds In lij
or a loss u)ion thi.iii to the amount iiisiiiv
that the iiolicy li;;s ccaseil to cover .'i i-..iifi|,iiii
r' k. Where the declaratimi allcgeil .such al.ii
lielil. that the ilefeiidants, in iiUvhliii: .ci i
dition.al insurance withuiit iieti''.', nii^'lit .",s-uij
tlie li s.s to be as allege. 1, .althungli the plnuli
under the ;dleg.i*iciii niii'ht r vcr fnr a iiirl
loss ; and if it .vas ■■• fact o::!y ini-tial. so t|j
the notice might 1 , .,.veu aft .r it, the |i!.miti
should have replied tin-;. The eH'itt nf
statute is not to .avoid a c nulitieii muli'liy]
lolicy that such iiiiti<'e sh.al! he eiveii fniuiwil
for, iiotwilhstaniliiig the stitiii., tin- ]oi1
thenisclvcs may make any stipnlitien nii i
subject not opposed to it. HiiHi r v. W'K
Ciiiiiili/ .Mnl It'll /■'in- his. <:>., I'.Ul |l. .m.'I,
The following (•■iiiditioii,
iiig or elTccted with otic ,
illsl'l UlC'C SMtl
ciiiM]ianii". .MM3|
nolilicl to the hoard, and if approvi.:
be iMldorsed on the policy .Uld signal liJ
secretary . Held, a cniiditiMii prcci'iliiit,!
lion compliance with it a hir tn tl- icT
though it did not .so expres.s|y pniviil.-
Jiriilr v. f.'oiv J>istrlrt Mnliinl t'li'i /■/-.
Q. B. 4:.l.
Oue of the conditions of an iiisiiiMiir
wa» : "Persons who have iiisiireil iroinrtj
this «om|)aiiy shall give iiotiee of any etii
siirance already tii.ide, or wliieli sliall 1"
W;ird» niaile else« liere iill tie ^iinie lneji'T
that a ineiiioraiidiim of -ii i etlin lM^l
may beeiidoraud on the peluy er peln ii
182H H ^^-^
<,uestion wa8 not pr,,,,,,,,
't..- at all, tl,-,„,,hV!'
ItWasrnnt.n,lnl,,l.,ntl,at
CO was vui,l, „„.i„,, t, '
that It M >s llrvc'lli,.!,,, J
le (■on<liti,m in ,lL.k,„l;,„u'
a ycnlict was fnin,,! f„r,i„.
il.liulp. having .■l,:,rj,,,l,i,,, J
I'l-nVf,! th.ir l.l.M. .■imllintl
to Hay v.hrtl„T tlK. i,l,int,ff
;lu'iiiol Hi'l'iirtlu'rinsun,,,,
tiiiir. Tl,,. cimit hell thai
C. I'.K.). 11. •.>.". "
policy ,,f iii.iinnr,, tliclc-
at an aihliti.mal insnram'ol
11 aiii.thri- CMiiiiwiiv witli.iiitl
'. within a n-isuiial,!,. ^\,^^^l
nun-, ami with.mtsii.-hiinti,.,
I liy them, thriv hfin;. ,.„,,
Ml their i>nli,>yiiiai hl.vto,
'lis. It aiipi'iivil tluit tlwj
inram.-c stit.M tlic aiii.nint t,
illy was, ami f.'iv.; tlir n,,a
A iiirh it was rllVrtfrl wiMiij
asiiuifh a-i il-triiilaiit- wv
iinr iiii,!,.,! l,y till, iiii-tilij]
ivil HI' was alle;,'('il in . ,. __,
lie \'^]i^•y VMS imt tli -ivlr
['. c. r>-2, ■.\],]Mvs tu iii-ipMid
on hnililin^s. 'Hie iiniiroj
(• tlliTO IVJcn-cil til iMliimtJ
tnlctioll lif tllc jjiinils liyl
11 to till' aiiiuiiiit iiisiiivilij
i'i.'asfil to niwr a I'niitiiiuil
'I'laratiuii allognl ..^iu'li aloi
I'fcinlaiits, ill |ili'iiiliir;a!il
iVithnllt Until'''. Illii,'|lt .",«'
h'^'cl, ah'iiiiii;_'li thi' 1'!
■11 iiiit^ht I'l'i'iivur fur 1 ].
1 ■'■■ fact ci:;!y iiartial. ■ ■
.,.voti aft'i- it, tlir 1''
lmI this. 'I'lu' I'll'i'i- "•
I'oiil a I'lnilitimi iii-i'l. ' '
tico shall 111' J'iVt'll fnl' :
11;,' till' stitiii., thi i'
nki' aiiv sti|i!il'itiiiii naj
•il til \t Ihithi- V, ll'i
■ />/<. r,i., ■.';>(>. li. .Vii!
iinlitiiiii, " iiisi'iiiK't' •■\\a
th iithi . ciini|iaiiii,"' .ii'istl
ani, aihl if iiiiiinivc
ho |iii]i('v aiitl sijini'
, a ciiiiilitiiiii iiri'Ot'ili'iit,
itli it a hir tu tl'
: so exfii'i'ssly iimviil
r'irt Muliiitl t'li'i' III'.
INSURAXCfi.
t "•; jury ,ni,n,| that tl. .y In "':""\""v, «liioh
h,lV.. ........... . '>"••<'"■>• i.Hl.st I,,., I,,,,,,,,.,, ^^
t II 11/,,, ., -I'l . . ' ^*'
: ^ n • ■ I , ' — "■"' Mill, ;iris<'
.it.'i. iiLsii, that thu Iiaiiiioni f ti ,'•"
W.l.v.hetl,e.i.ssurc,I fmnVe^f ','''" ^"^ ""''l
H'litiiin. //-. "'l>ufon„.-t„,.t,„j-j,,^.
''^!::^:s\n:,:;:rnrs; -i-'- '{r•^■~t^t„••r^/^■>•''-tl;,.v^;:,,:;::i'-
f" an .ictioii „„ ;, ^.., . .
ir.itii,i.,'ai|„iitt;:.rti;'"' "■'■""" •^"""t of ;„''^'j''^"'t^' >^"".Iianv. it j, n''!r"l' !;""^'^' '" *''"
"ii'i"'*,! o„ ,i„, „,■,;•:' ■'■• '"'I .V III" i,,'.|,„„
...i..sw.as^.,„!,i;£,';;:;i::,;^:^'";;';^
.^n:;;S'";^'-''"-tf''"-the'::;i^
tRKuuf year, w;t,, ..„,.,;•..■> '."'"'la"ts to f"'-UR.r ,ii.sur,.,av.>, .,, li ' '■^■'tHi^ate ..f tlio
b:<!i.t|in„r til •..-.H, .l,u,„an ,,i^. '^'.'"'r'-' '".^'.'" ""•'I"-'.- a.ss;M,u,i"'^ n^'l':^' "T"^'' '«
K iia>lvtiit, &(•., an.! th'if tu — "' '"•'- '^'^ '";.'. i iviilv f,.,„„ i ' "'^' -^"^ i, on ,■,.
bfiisassiiiiu'ci, I,,,,,,,,,, ,.„ ,t^,^, ';" ^''.^ tl,.. l.ih.y w,,s ,„,,,-;,i^,,;, . //V ".'"■'• '"■^nran..v, tho
r/r "r" •''■'■■--•''''ants J.;\ r-'^^^ ^-^^ •^' ,•'«. "•. a,,,,lio;i t . i ''l^ *•' Viet. c. H
pt. .Vcin.lcunt: -settin. ,,„;.; ''' "","• """"^'' -•"■"I'a-'i es, ,., , ' ' , l'".''-'-^ i.i.u.e.l I,;
l««n-lKT. .te.. as in f,,.. .':.?"* ■'PI'.'.-.'Mtly ...n;„al. }fe'l,l, ,,1.^;,, ;' ,;""'!".' a.s Well i
'.Vlaws. the notiee, I, ":;'■''"■-' ■•':•' •"'•1 tho
;;..''.;i:s;:t5tr;.s:';:::'.'-'*''"S;\;:,t,'»!:"
mosolelv intcreste.l ; .v,„i
wheiehv tili
I'l'i' insiir
Ittii li'tiire siijt,
''.\-
'l.inielv,
"ntiji
m tl
[li'it after the "ehi, ,,1
ition her.'
^'l\<'li W,-is
'"■>"■;■'. ami tint th
L' "ith of X
':irl\
(i»niiii.siilvi.,|,'y .711
'I'l^"
,C assi;.ia.,l t„ ,,(,
Woiil,
»«, k
ii-s interest
':i'"'eMal|,„Iii,i,,,, I
that li
iiniitC,
ill saiil "hjeeti.
Mot i)
•""■^st„„thef.,rf,.it
tll'lt the ;js V
2';;^-M..'.lefen;h;nts.7
let.
an 008
e 11(1-
Jiisuilioi..|it.
i.> a.'i
i .11- Il
•*"'Uiii siimil
'eeaiik
'«''■•' sh.ii.l.l ,./l,.,.t
llii«tif\ th
Ci III
"ot HitI
.V one of the .Vl
aviiiil,',! .'«)«.
"» Mas n.it to tl
lire l„r t
th
J, <>.,
'"■* yaii.se, f„r tl'
""'■( Dm/,-! ■'
pl'iiols of I
leir
■Viifi,,,/ /■;,., /
/■"/;• V.
-'•> ''. I'.
||aiiiti/f
|i.uiy,
"t'eanie
an. I !
' ''''a^oiialih- .lilj. t,,f'
ive ltd
•i"<;s liloa.io.l f.al.s
lf^^^n.1 e()e,.ts, in,.|ij:|
fll elh'i
.^'■•ive n.itie
■'*'-<iiraiieo ('
ilitions iif an iiisni'.iiic
lio have iiisiiivil ):riiiii'rt|^^^BP"if.v, an,. t|,, _
1 Kive ii.itii'i' ef an\ "''^N^^^P'" !lic U'o.sterii A
la.le, or wliirh shill ' ^^V' >^«lii>r H.
Here on tin- saliu' prii;' r^^^J^Js.* .ivniil,
um of siuli iitlu'i- iii-ii^^Braw,isli,'
1 the lielieyeriieliiii.' .Ifi^^^kanii' ims.sesso.l of M
l^'S'gllee Iiefi
illi' tl;
I. tors
"■e the I
•■fl'eete.|
" 'I'x alfi.Iavit ,,f I
■''wearin.r 1
ire the
"" ••»<!. litioiia!
" , "o 'lis i.r.,,,.,rty „,
te.l ;i iirfl,,,.. :.. •' X
MW.irii .la
'■■<••<, in stati
"^iiraiH
',' ii\-
I'l'tiii-
'.-,' tllat he h:v,l
Jl
a fiirti
'f' IIISII-
that
"111 ,1
an.
Sillh'
'oliey with
'" "f the HaintitrVor I
'fol.I. ,,I
ii|>.,n tl
"ithoiit
Wllerehy tho snd
le evi.l
'•mother
"■ill- t
•■ K'lo.i. f„r th
pr.iili
onei; s.'t iiiit
e. nil j liny vv;
le
|iol
, that
IILllIu
llllli.S-
rf^ "^^ I'l' tu. ;:;i
,';:";"!'>■ /'I'l'-ai that tl
y, anil , ,(
ill this
. same
'' > ; i'lii that
'■a-e. It
Olil ll.lt
policy f„r til
'V— ' '-y •.oth e.„n,;;;;,:r li^rSl'T "'"
■ " ^l H--T. T. is7ii.
'l'-oiill„n,l /„,.,_ I
yet lejiortod.
"iiiiittt.
Not
18.11
INSURANCE.
IS.-)''
(^Hivro, wlicther ail alKdiivit aa to other insu- 1 r!ii/ /«.«. f'<i., IS (,>. B. ,')S4, p. ISS'J' y,,.;.
raiu'C'H is uii iillidavit in relation to the Iohb or I /'rorim-in/ Itix, Cn., 7 f'hy. I--, p. rir . 'i,^'
«lani;ig(!. /Ii. rh(tnirH Hiilh/inii tiiiil Sn'riinji \,„;, /,,' ..' ',',
Thf pliiintid' li.ivinK enuctoilan insurance witli ; '*'''''''''''']'''''''!' J'''- ''"•— <^ H- '.Nltii Sq.t'X
(lefindaiitM on his ".st<" I; nianufafturcd ami in; *-'''' '^'''' 1'' '''^-*-
j)rocc'KM, iisud fur the nianiifat'tiire of agricultural
inachintiy," attrrwnrds in.surcd with ..imtlur
company his " aLrricultural maciiincry in jivocchh
of constructidn liiiishcd, and unlinishcd. " t^u;trc,
whether the deft udants iHilicy extended to linish-
fd maeliims, (ir mdy to [lart.s (inislu'd, or uiilin-
ished of inachineM yet in pro. ess of 'jonstruetioii ;
but llild, that the see<;id policy covered at all
events a part of the ]iro'ierty incluiled in the
filst. ami tliat there' was herefore a doulile in-
surance : Held, iilv<p, tliat the construction of
the policy, iindi'r the cin uuistanees, was for tlio
court, not tlic jury : Meld, also, tiiat there was
clearly no notice of or idnseiit to the second in-
Hurance, as rei|iiired liy .'{(1 \'ict. c. 44, ss. ',Vi, .SS,
the notice hein;; veriial, and given to an agint
■who had no authority to receive it. /iilHiiiitiiu
V. '/'/ii ( 'iiiiiiii'iiiii MiitiKil /'"irr /;(.s'. {'ii. — -(J. U. ■
'J', 'r. IS7(i. Not yet rc|ported.
(g) Al/iratidii of i'ri'iiiiniH, Inrrxi,, ,,f Ir i
/liiii'ji' iij <Jrriiji(ttii,ii_ '
Tlie plaintiff insured with cU'f,h,liiit< ,,
(tone huilding t'KIO, and on fiiniitiirf iii-l .tl 3
,MH>ds tiierein f'JtK), all at the rate nf ,.i.,|,, J
cent. ; on a frame Imilili
iu\<\ on
and tools therein t'."i() ; all at tli.' iiiti- dt tu,|-
percent, it wasac litinm.f tlici»,H,v ■■ti'l
if aft<M' insurance etleeted tlie n^k sli;ii| 1„, ' J
creased hy any means wliatevei- within the',, j
trolof the assured, or if siicii lniil.lii|i.'i.; ■', i,','
shall lie occu]iieil in any w.iy smw U, rfiuhr th,
risk niorc hazardous than at'tlie tiiiient iiiMinuJ
such insurance shall lie void.'' |t w,i,< im,,.
that after insiiriiiL; the plaiiitill' juit iiii ;i >!,
engine in the frame IpuildMi;.'. nihl, iiicnli'rj
make it as .safe as piisxil,lf, ureeted ;i siu;ill«
gine house of l.rick at the h.ick uf tlic lmi|.,„
Some witnesses swore that if rare Has t;ikiii' 13
A policy .ivnidrd inider sec. .'57 of ,"{(i Vict. c.
4't, <•., for want of the assent of the company to risk wniild not lie increased, Imt ni.jny ,
that it would, and it w.is jirov fd tliat tjlc I
an additional insuianee in tlie manner prestiiliecl,
is re\ived under sec. ,'fS, and the company .iri'
deemed to have assented to the additional insn-
Dince, if, after notice of such insurance, the two
Weeks allowid liy that sectiuu for the eom|iany
to si;.'Mify till ii' dissent are .alloweil to ela|ise
withciut smh di.-siiit; Imt cliiring the two weeks
the iiisiii
the tinit
and slmnld a loss oeeur during such intcr>al, I
cannot recover; Held, that in compu ing t!
till'
if
w;is told liv the
of the
Igent ni tne i'iiiii|Mii'. thi
le put n|i the e:,gin! ]u; WeiiM have t.';
and |iay an ad.liticinal preniiiini : that lit mj,
no such application ; tint lie eiiilfav..iin-.l
etlect _an insni-.incc at other olliers, Imf «:isj
fused, thi! risk liiiiig ennsiilcreii t'«i
remains in the saint! position as at and tint he had ackiiowledL;ed tli.it he kii.wl
f eliciting the additional iiisuiMiiee, ;::.iiey was void heeause he had made imarniii
ineiit with defendants in eoii.<;c,|ii,.i|,.,. ,,1 t||,,J
dition.d risk, 'i'he frame liuililm^' was ili-' v|
two weeks, the day of the receipt of the no liy I lie, which lieg.iii in llie ii|i]i|.|- ji.n.t
tice is excluded, to th.it where a n itice was j a portum of the goods in it wir
given on the ."itli .Inly, aint the lire occurred on '
tile I'.lth, the lime had not exiiired ; and semlile,
the notice must he received hy theci nipaiiy, and
not liy their local agent, and must he actually
received liy the company, not the da:e of its de-
livery at the [lost ollicc. McCiiii v. \V<i/' rlmi
CiiKi'it,/ .]/,i/,i,i/ I'li-f /lis. fii., •-•() C. )■. 431.
In this ease !{., who had insnreil on the 'JOtli
Ai>ril, I87.">, in ilefcndants' company, on the 1st
Alav ell'eetcd an additional insuianee in the .Sta
dacoiin coinpany, and ;:;; tlie oth .luly posted
n notice to deti'iid.ints' local agent, iiiformiiig
liini of the fact, w liicli \\ ;is received hy the local
agent on the .Sth. and on the saineilay forwarded
to the head otlicc, where it was received on the
KHh : anil on the iMHh, and after notice of the
loss, they notillecl the insured that they dissen-
ted to theiulditioiial insurance and had cancelled
their )ioliey : Held, that the notice was within
the time allowed, and that the [lolicy was tor-
leitid. ///.
The notice also notitied defeiidantH of the in-
tention of the insured to ellect an additional
ilisiiiiiiicc in the llcavci-i^ 'loronto Mutual iiisiir
ancc Co., and the insured, liefore the expiration
ti-iiyoi.
stone house was also mueh iiijiireil iiy tli
lire, and the furniture in it li.irtially ik'.-;:i vj
He'ld, that under tliefaet-i proved tilc jmli yi
cicarlv avoided. /t'l iil v. '.'i./v jyn'/i-f I/,.,
/h.1. r.-., II (,>. 15. :!i.\
.Semhie, that a mere eh uige in tlu no. nn
of a house insured agiinsi lire, witliniit imi
itc, is not siieli ;v eliinge of iie''ii|MtiMii as «o
avoid a policy eU'eeteil uiidei'li \\ ill. |\'.i'
the liy-l .w set out in this c isc, //.,'i...ii ■
rniijtiiii hiilrirt Miitmil Fir //,s. ' ,/., lii^. Ii ,
Selnhle, tll.lt a demise of fliv.' Iliill.si! ilKli
for one year is not "an .■ilieinti.m' witliiiil
act. //-.
I'laintiirinsiired w ilii defendant I'or l':',ll!i(
property insured heiug desrrilied ill thc:ip[
t ion as his s toe k of dry goods, eoiit.iiiivd iiitiiii|
and secoiiil lloors of a three story lniiiihii.'o
pied hy him as a dry go.nls .store, thetiiiiiii
iieiug oei'iipied liy .•inotiii'i' [lartyasa
ami .-irehiteet's olljee. r>\ the piiiiey thr nil
covenanted that the represeiiLitioiis iii tlii'
cation were true, otiierw i^e the policy s!i i
voiil ; and it w.as agi 1 tli.it if tlu' haU
should lie iiscil for aiiv M'ade or Inisiiicv
of the fourteen d.'iys, and w ithoiit any further nated hazardous, extra In.- iiiioiis, nr s|»
lintiei! to ilcfeiidants, etleeted such iimurance
— Held, that this .also voided the policy. Hi.
Quiere, ns to the uiruut of a luitiuo of the intun-
tioii to ciVect a further insurance. Ih.
See WiUiiiiiisiiii \. Xinijdrti IHnli'ii'l Mnl\(iil Firr
JiiK. Co., 14 t'. I', ir., p.' 185!); A'o(«/v. Pronn-
hazardous in the ineinoiMiiiliiiii aiiiuxnl
poliiT, or for the piiriiose ol ki epiiij; iri
any of tln^ goods so deiioiuiiiated, iinii'ssl
to in writing hy the coiiipuiy. the pi'liivl
lie void. 'I'herc'was iilsoa eoiiditi Itlicl
that the aiiplieatioii should specify the i'"fl
thin of the hiiihlipg containing the \<t"\
r)S4, 1>. ISS'2; 'Mvrv
Chy. I'J-*, V. IT'.IT; .V,..|
Suriiiiji Si„-'„lii V. (,',„.,|
f <)cniiiti'i"ii.
}{\ witli lU'fiiiiliiiitH nil
villi nil liiniituri' iiml nthoij
\\\ at llw IMto nl cii^lit 1
iiaiui: tKio, iui'i I'll p"
I ; all at til" lilti'nt tttiU-^
,i\ilitii'ii 111 llu'i"ili<y "tlia
'ffti'il till' I'l-^li ^li:'il '"'in
[-.i \vli:iti'Vi'r witliin tlif m
if ;,\li;ll WlliMillL'i' , "IIUISI
iiiiv wiiy siiii-i til rt-Miilir thf
tliiin at till' tiiiioiil m--\mi\i
1 lie v.iiil.'' It was M"
tlu' \ilaiiitilV \iiit miii-i'
I! liuililiii,^, mill, ill I'l'l'i'
imssililf, croiti'il li s'.ii.iileq
at tin: 'I'li'l^ "' tlK'liinl.'.ii,
,n: tlr.it if iMiv was tiikiuti
iiu'ivuM'il, liiit iM:uiy >w(
it \VilS jiVllM'll tliiil tl
,0 IX'^rllt lit' till' rullllMliyt
,,jrin'^- 111' wiiiil'l li^i^'i^' t"'H'
mill jiiviiiiuiii ; tli.il lie m.
„n ; til it 111' <iiiUMV"iiri"l
,e ut .itliiT I illii'i'S '""«»»
i,,,. coiisiilfri'il t'"ilii7wli
,-\oiow1im1:.'.'iI that 111' kiiiw
.(•iiusf 111' liail iiiaili'"i';irrii
ai'its iui'iiii'<i''lii''"''i'"i ''"■■
.e fnuiu-li'iil'l'"-:^^''''"'''**^"
tianin t!ii'iilirn''"'t"'"'
„„lsiu it Mil'.' ili/stvoyca.
iiui'ii iiiiiii'i'ii 'ly ''"'
ilui'i' ill it liai'tially ik'^trMV
tlu'ia.'tM""'^ '■'"'"'" ,7
/,',;,/ V. '/■.'•■ I >'■■''''' •""
li l."«.
„„..•.• .'liinu'' iii.tji^'ii""
,1 n"iiii^t livo, witli'iitt 11"
,.lrrii"<'of n,'"iiiiiti"ii:i*«'
:;:.;u,„U'MiNv,iiiv.i'K
t in tliis rli^o. II"''-''' \
1. iii'iiii-' "f "' : '':;"",1'':^
,t "an aUi'ii:iti"i' withinl
la„iU,.l..U'ii;lai|Cl'''-t^.'|
,„,i„. ,U'si'i'i'|'"> '" "^
,,l,.v,„.MU.i'iiiitaiiK'il"""
„(',;tlin.«'sti.vyliiiig<
ai-vu >-^""-^;*'': ' •
|l,v ani.tlii'i' l'm'>-."\'' .
Vi.'L.. IUtli.'V"l'0»>V^
L a.M'.'>'il that It 111' '"'I
;,;ytraiU'i.rl.->--3
v.xtra lia.'inl""^. '" ^^
„,o.u.ii-aiiil<","^>"'"^"',
lli,,g c iiitaii>"'i5 "" 1 '
INSURANCE.
1834
L iiisureil, iiml liy M'liom occiijiicil ; that it
ihi-alil '"•' "tatt'il wliitlifi- gipiiiLs iiisnruil wvru or
I ,ii>i till-' i'i'^i^'''il>''ii>'i^ iK'iiiiiuiii:iti.il lia/anlmiH,
iiruli'"''"'""^' '"' iiii-''tiilL'il ill tlii; inuniiii'iiinlum
'ysin'cial lati's ; that if iit'ti. r tlio iiisiiranoo the
I \ jlii)ulil 111! iiu ri'atii.:il t>y any hicmiis within
I ik iii'it'"' "' '^''^' '^•"'•'*"''''|'' •"' it f'liih Imililinj^
!iii.iuiii Ik-* I'l-'i^i'l'''^'^ i" '"'.V ^^'^y *"' ''*' til I'unilor
lihm>k iiiiii'i-' hiizariliiiis than at tho tiiiiu of in-
I L„ jiuli insuiani'o siimilil bu vuiil. in t)ic
liit!iii'iwiiili"" I'lffiTuU to, hat-linishors anil .sul-
I linr WL'i'i' iiii'linh'il anmnj,' tlif traik's aiul gooiLs
ILmiii liazar liiiix, ami m liirh it was .stiiiiilatiMl
Ixiulil siil>it.'i't till' liuililin;,' anil all its con tents
liiW aililitiniial I'liargc ; liat lili'at'liiiig was in
|ij^.l;is)i cilK'il LXtra lia/ai'iloiis, anil hat nianii-
Ikwrfrs ill that of sin'iially hazanloiis (e.ich
lutbiistiimlation as to extra I'liarj,'!.'), and at thu
Ijil III till" la.«t rlass was ailik'il, "anil gi'iiurally
|i|itraili'iii'i'i|"i''i"o ^'"-' "**••' "' lirc-lioat not huforo
lajnii-Mtiil- ' It ainioariMl that tin; yooils kejit
IKtbc [ikuiitill loiisisti'il in jiart of niillini'iy,
lijitli m tiio ikfi'iiilants' in'intcil instiiutions to
IttiMgi'iit^ -.vas I'lassoil as extra hazanlous, anil
pljrva til lie ihai'geil at a higher rate, lint it was
(Bditiiiiieil in till' [loliey or eonilitions ; also,
bnlii' liusiiiess of hleaehing straw lionnets
ijii.irrii'il nil in the tliiiil story (ileseriheil in
ijii.iii'atioii as oeeilliieil foi- an arel.iteet's
(it, anil :i stove inti'oiliieeil into the cellar for
Kirimse <if this process, in which siilplmr
iil*i' iiiailc use of. No notice was given to
IStii'Uits III any of these changes. A tire
^niy mi'iirrcil : lleM, that the policy was
1; that lilcaching lionni'ts was inciinleil
|lk' tMili: III "hat Meaching'" incntioneil in
Kvlasj "extra hazanlous ; " ami th.it the plain
I baviiig cai-rieil on that luisiness without
lice til iliii'iulanls, no ijiiestion as to the
n-k thefelty was left to the jury,
(tlm |Hiliiy liy tlie ixpress terms of it was ,'it
Itsit. Ili'M, also, t! 'i the other comlitions
vlinikeiv. for the oicupation of the Imihling
iJuriil, ami the risk inciv.iscil liy means
ihiiithi'i'iiiitiol of the assiireil. The keeping
mcrywiiiilil not have hecn fat.il, for ]ilaintitt
liiint In' .•*ii|iliiiseil to !>;• aw.ire of ilefemlants'
mctiHlis til their agents ; nor wmilil the use
Imlliiwr, I'lir the menioramliini referreil to it
twiioii kept a^ st'H'k. M' /•(•('•/• V. I'l'irinriiil
, 14 (,l. 11. 4:!1».
Jjlvri', .^s to the ilistiuction between change
Ithiui'ciiiiation" ami in the " n.iture of the
ll|4tiiin" iif a huililing. Tlir O/lnini uml
Iriii Fiii'ii'iiriliini Co. V. 77(1 /.irii'/tiii)l mill
idrt , I,,./ (,■/„/„ //M. Co , •2H Q. |{. "lis.
Isftmbiitii iiisuruil two liiiiMingM, each for
Ml sums, liy a policy ]iroviiling that in
puvalii'i'.itiiiii or adilition shouhl lie made
rtiLiiiy risk, whether by the erection of
ntus liir |iriiiliicing heat, by the introdue-
^»i artii'li's inure ha/ardou.s than allowed, or
1 ill thu nature of the oecuiiation, or in
lullittiiuiiiiiiM' wliat.soever by which the de-
pol ri«k wa.s increased, and an additional
am wimlil he reiinired, without notice and
ucctliireiif, the policy mIiouIiI be void. .\
l»lliiiKiil) ii iletenee under this as to one
Vui^, iillcgt'il that an alteration <va.i ni.ide in
|w, withm the meaning of tiie condition,
I'Uiiitilisi havnig sutlered a cliange ni the
toiii"! tilt' building, and by the introdiic-
Ifcremoi pjintcrs mw worked therein and
thereon at their trade ; and that .inother alter-
ation was made in said risk by |il:iintills having
permitted a change in the occupation of the other
building insured, which ailjoined building No. I,
, and by the introduction therein of carpenters,
j who worked therein at their tr.ide whereby,
ami by means uf such alterations, the risk on
I said building No. 1, was incieased, ite. : Meld,
i pleas good ; that the means by which the risk
j was increased could not be reiectcd as surplus-
! age, as defendants contended, but that what wan
; alleged as to the change of oceuiiation might
, have increased it, and whether it did so or not
was for the jury. A mere temporary introdue-
' tion of painters and c.iriienters, for reiiairs, itc,
would not avoid the policy, (.'ua/re, therefore,
whether in this respect the plea was sullicient.
.Senible, that it was, bec.-iuse the ciiiirt could not
judicially know whether w liat was alleged on
that point could increase the risk; but it was
suggested that the plaintills sliouM reply speci-
ally the circuinstances under w hiih the pa'iitfs
and carpenters were introduce. I. //<.
. The premises were, when insured, used as a
I store, and were after insurance used us a print
, ing olliee, without notice to the coioiiany or the
] settlement and payment of any additional pre-
mium for the increased risk, cmiti'.iry to a con-
dition endorsed thereon : II rid. that the policy
was vitiated. //irni/ i-l n/. v. Mn/nnl Fii-r /n.i,
Ci: 1,1' J'risrotl, II <•.'!'. .•(i»-t.
I l)efemlants iileailed, (1) that the conditions
provided that in the assur.inee of buildings con-
taining any furnace, itc, the construction of the
same must be particul.'iily discribed w hen eli'eet-
ilig the insiUMiiee, or if subsei|Ueiitly iutiodiieed
due notice given to the company and the same
sanctioned : that if after insur.ince the risk
; should be increased by any means within the
control of the assiirid, or the premises occuiiied
in any way so as to reiidci' the risk more hazard-
^ oils than at the time of assuring, unless such
alteration or addition should be allowed by en-
dorsement on the iiolicy, the assuiance slioiihl
be void. And defendants alleged that after
etlecting the insurance the plaintill made divers
alterations and additions to the biiilding, aiiil
in such additions introduced two furnaces, of
, which s.iid furnaces being intiodiiceil defendants
had no notice or knowledge : Held, plea bad,
for the condition provided only ag.iinst fiirnacea
introduced into the building assured, not into
additions made to it. The second )ilea was, that
after the policy divers erections, which wero
within the plaintills control, were added to tho
buildings insured, whereby the risk was in-
I ere^ised, without the drfeiidants' knowledge or
consent. The plainlitl replied, that by a condi-
tion .if the pobcy. in case the risk should be
incre.ised by the erection of buildings, <Ve., it
i should be optional with the eoinpany to terniin-
j ate the assurance : that the increase of risk was
HO occasioned, as allegi'd in the plea, and de-
! feiidants dill not terniiuate the assurance iis
' provided for in the condition ; and that said
policy is valid and subsisting. Held, replicttion
' clearly bad, it being admitted, as st.itefl in the
[ilea, that defendants had no knowledge of the
: Iniildings being erected. Loiiihk v. lirit'iili Aiii'ri-
I rii A^.^. Co., '22 ii. B. :{I0.
Tlie plaintitf also took issue nii the above ami
other ple;ut. At the trial it was proved that an
. additiuii hml beuu maile, in which u builer watt
llflH
1835
INHURANCE.
1M(»
1^ I
Mr
pliircil, and Htoam carric'il thoncu into tlie nmin
building, Inmi w liicli ct-rtiiiu fiirnacuH wore then
removed. 'I lit! jury giivu ii verdict for the jduiii-
tilt' tin tlie seciini( [ileu, luid found that the
vxternal n.siv wan incruiiHcd, thu internal riitk
(liniiniHlied, and on the whole the ritik diminished
1>y the alteration.'^ : Held, that thu i)lea was
proved, and detendantH entitled to have a verdict
entered for them upon it, un luavu ruaurved. Jli.
'.i. defendants jileadeil that hy another condi-
tion all assiiranci's, original or renewed, Hhould lie
conwideied a.s made under tlie original represen-
tation, MO far as it might not lie varied Ity any
new re)insentation m w riling, which in all cases
it nIiouIiI lie incundient on tlie assured to make
■when the risk liad lieen changed, either within
itself or liy the surrounding or adjacent hiiilil-
ings; and defendants .iverred that although after
the original rejue.'iiiitatiou new buildings were
erected adjacent to anil aniuiid the liuildings
insured, and altiiiiugli the risk was changed
thereliy, yet the (ilaiiitill did not make to de-
fendants any new reiiresentation in writing of
Siicii new liuildings, or of the change of risk,
■wliereliy the jioliey liecame void. I'er McLean,
C. .). -The plea shewed a good defence. I'er
Hagarty, .1. Not, lor the cliange here occurred
l)el(ii<' the time foi' rinew ing the policy, and the
t'onilitiiiii did not liiiid the plaintitt to make a
new icpreMintatiou until then. Sillem i: 'I'liorn-
toii, .'! Iv X l>. .Sti.S, ili.stingiiished, as the alter-
ntioMs there ^eemed to have been in progress
Vlieii the [lolicy wa-* etlceted. Jli.
See also Ilciulx,' \. liril'i.-ili A)iii ricn Am. to.,
me. 1'. !>!*, ilecided in t'u' same term,- an ac-
tion on annllier policy ii|inu the same property,
in which the iilcadings and decision were suli-
stantially the same. I'he third plea wiw held
no ilefeiice.
A now action having lieen brought on this
policy, the judgment as given in the loinier case
was adhtii'd to. The d.^tciidant.s further ple;viled
that the liiitish .American land comiiany, of
which company thr plaintilt is commissioner,
had, before the [lolicy, leased the property to
one L., who liad com uanled to insure and keep
il\sured, and that I.., as lessee, made additions
to the buildings w liicli inciciised the risk, and
that .siiih incica.-cd lis!: was within the control
of file land company as lessors, whereby tile
policy was avonkcl according to one of the con-
tlitions :--l!i'ld, that these aihlitioiis, made by a
lessee. Were not w itliin the control of the les-
sors :Held, also, that the ppivision in the
leiuse, that the lessee! shciiild not make alterations
" ill the ariaiigeiiunt of the mill or machinery,"
was not a jnoliibitioii fnim the putting up addi
tional biiildings ; but if it were, the defendants
had no right to resist ]iayiiieiit because the land-
lord might have a right of entry for a forfeiture
l)y the teiiaiit. llimki r v. British America Ann.
Co., 14 (.'. I'. .j7.
One of the conditions was, "if the risk shall
be increased by any means whatever, or if the
buildings shall be occupied in any way so as to
render the risk more h;izaidoiis tliaii .at the time
of insuring, such insurance shall be void." After
tlie insuiance, certain alterations were made in
the premises insured, consisting of thu removal
from one room to another adjoining it, of a
couple of dye-kettles, a ditl'erent disposition of
the tluea and pipes eouucotcd therewith, and the
eroction of a new chimney, tlicnliy tuaJ .iil
extent increasing, (if considend «,, [,„ i„,|,J I'
act) but to a great extent diiniiiislilng tli"r''ir
The jury found that, though tin: LiLrti„i,„t '.U
ehimney did per sc increase tlie lisk^ vet tl tl
diminishing it in one [il.icc .iinl iinri'i.sii|., ,!'■ '
another, the risk on the w hole w .im n.ii i,, ' ^ h
and they rendered a verdict fur tin. ^ *
which was uiilielil, ami llchckir
American Ins. Co., I.SC l'. !i;i
IHUUltlJ
'■■■'' '''■''till"IIHli,ilj
Dtih- v. Wiiri' IHMrivt Miitnul /».< t\, p. qI
i7r). - ■- i.'L. fj
I'laintifl', in March, Isill, niilr a writtui i
plication to defemlants tor iii.suiaiii-L' im lutli
premises. The risk was aceiptod I'lUKlitininlly
on certain alterations being maik', until th
making of which it was nut to l.r lui'isukn.l h
taken. After th"sc altiiations, m, ^tips ^J
taken towards completing tin. insuraiku witf
January, ISC-J. when a poln y, ilntcd m \'iji
lS(il, was i.ssiied and dclivei'd tn the i.l.iintjl
.•\mong other conditions III the policy win- ilnj,
I. That the policy sliouM n,,t l,i. lilmij ,
company until iiriiuil payment of the luuiiim,
'.'. That apiilications for iiisiiraiicc slidij,! ,,|,^,„j|
the construction of the l.iiililing tn lie iii,.iir«r
and that iifl< r the eUcitiiig ot the iiiMiraid
any iiicrea,«e to tli" risk by 'any niian.s wli.iu.yi
within the control of the insnnil slimiM ;
the policy; X That if the pi-n|i,.|ty tu I.
sureil were leasehold, or otlur ii'itfiv>t
absolute, it should be lepreseiitcil to tin-
pany, ami exiire.s»eil in the poliry in «r,tii
'J'he preniium was not paid in tiill' till .||||,„a|
liS(>'_', on the day of the i>Mie ainl d. |i\-,rv.
policy to plaintitr. I'litwun Maivli, |v;i,
ilanuary, bSlil', a funnel lor <'(iiidiictiii;'sli;niiJ
from an u|iper to a lower >toiy, in imnti.i,
naee, was placed in the iiisiircl luiildin;;; wj
addition or alteration, it was [irovcd, iiirri-;
the risk. There was also w iii(irti;ai;c liiii
premises, which was meiitioiud in the ,\\,\\^
tioii of insurance:-- Ibid, I. That the iiisiir; '
was not elt'ccted until .laiiiiarv, Isiy, an.ltl
the
to its date f(U- any other piir|iiisc than l^r j
eonipiitatioli of the period at whiih it ?liol
expire, the risk by thu erectiuii ot the mnj
was not increased itj'tii- but lui'm; the niakiii||
the policy. I'tiiintriiiirr v. l/iiiifunl /'(>
Co., l.-|C. I'. W.i.
One S., being the owner of a frame Iniilcl
used as an hotel, and twn barns, iiisiireil
defendants, S~{K) on the hotel and Sl.'itlonc
of tin: barns. Snbseiiueiitly .'s. nimtiiap-il I
lanil and premises in Ice to plaintill. Imt t
coiitiiiiieil 111 possession. The p ilicy wis latj
to plaintill' by defendants. .\lti r this, misjl
tenant to S., carried on, in addition t" the hfl
the business of storekn inn:.' in tlic hotel.
while in possession tinil lietoie the lire, wit!
plaiiititf's knowledge, made 'in additimi I
hotel itself, which had tin' ellei;t of iilaciiil
hotel nearer to barn No. I, and reiii"Vi'il|
No. I so as to make it nearer barn .No. '2.
afterwards oi'curred, whii'li oriuinated in th
ditioll made t<i the hotel and d. striked it :
ivs the two barns. I'laintilf tliercnimii in liil
namu sued defendants for the total aiihiO
the loss, 81, (KK). Defendants pleaded, th
policy was subject to conditions that any cl
111 occupancy, or any al "i.ition oradditi"ii»
biiildiiiga insured, not iiotiticd to the "
V diimnoy, tlioreLy to « .li ,i,4t
It <>xU.iit .hiMimslii,,,, ,1 ""ifl
HO ">;T.'H.s..tl.,. ri,k, I %
.iithc«l,„K.was„„tin,,.?,, H
sl,",,;:i ■■'£„;:,;": -Si
arch l8<Jl.n,u,K.awritte„,,„
diwU f(,r insurant. „n ,i,r,
i«k Wiw ,nrf,,to,| ...iMlitiuiuli
:itinn.. |,..,i,^. n,a,le, ,,,,1,1 tJH
It wasMuttol,. ,„|,s,a,,.„ij"
-;>"l.li.'tll,g till. ,„sur;u,,, ,J
'"■", a l-li'W, ,lat,.,l ,„ mJ
im.'l a.l,v,.,v,l tu thu pbintiT
lltlnM.Sol tl,r,,„li,y „,,•,., I,,*
y sllnllM II, ,( l„. l,||i,li,|,.„„,
'""'l'-'M"UMlt ,r|- thoi„u,|i|m
nlist(iriiisuraiavsli„iil,lo,^.ci|
ot the l.iiildiiig til 1,1. in.'nr,
Ik. ..|k.|.tiii- 1,1 tin. iiiMir.uci
I" i-wk liy any iiR.ans m hat,.?
;1 "f the insiiii'il sh.,ii|,l ai'o
'liat if th._. iii.Hp,.rtv ti. lie ;
fhiiltl, III- iitln.r iiiti.i-wt ,
111 he l^epreseiiteil tiitiu.i'a
.^c'd ill the iiiihrv in Hritii
< not jiaiil ill lull' till .|„|,iu
lit the issue ami il.Jiv,rv,i!l
r. HetWeell March, |vil, (
fllliliel till- e(ili(liietilii.'»liavii
;i lower stm-y, in frnnt ,,i,i(
ill the insured Iniililin^; «L
itinii, it was iirmvd. niTcai
was alsi) a nmrtcai;!' unl
i^'il.-i nieiitiiiiied ill till' .iiiiil
:- Held, I. 'I'liat tk. iihiira
until .laiuiary, ISii:',
.illg then a le'treartiv,' i, !:i3
liy other |iiir|ies(. tli;iii Lir]
he peviiid at «iiiili it «ho|
hy tllu el-i.etiiui lit the till
(i//rr hut /„/■,„•, the iiiakm
■driiiii r V. Iliii-ifunl I'iiy
the iiwiu.'r nf a fraiiiu liiilj
and tu(i hariis, iiisiir,.
nil the linti.| and Sl.'dniic
nl)se(|Ueiitly S. iii(irt:;,i!:iil|
js in lee til plai'itill. i.nt j
'!<.sii>n. The piiliey \\,i> i;itl
iViidants. Alter tlii^, . nei
eii nil, ill addition tuih, b|
il'ekeeliiiii; in the lletu
n and helnre the lire. «iH
'i|i,'e, made 'in ailditit'ii I
1 had the ellei;t el' Jihiriiilj
larn Xn. I, and ruiii"vi.il]
te it nearer harii Ne. -.
L'd, which nriuniateil in th
. lintel and d( str.'iveil it:M
I'laintill'tlieiciilii 111 lull
hints tor the total am.
Defendants jileaiM, tli
; tnennditiiins that any eh
ny al..,.i.itlniieradiliti..iit
not nntilied tn the
.,,.« I. ..,..„ „y,,„,..o..„t^.,,,,,, „.ij| - -.- Mi.-c tiii; huildii,:, „-.is in ' '"-■'■•'"'."Its know
l|li» lilKilvled^'e, III the ,„,, '. .. '"""^ doffiid- aiK tll;it H {ut i i " ''"HI'so of e,,|Hf,.„ ,/:
LhiM, I. That the n.d.t , I l'. rr;.''".''-''''''^''' •• \ "'"• 1 1. t 'f ' '"' '" "^''"I'V it as • | • '""'
Jp...e,.f .S., to niaintari 1 , .'"'"!• ^ '""'"rt- 15. oee l,,!'"*:''"''''-' ^ "itli'-.suel ,''!'«!
ISieonthepnlieyilid lln Mr . c' -Iv"' '"' """ f-"'-'t^ W th kl'i' ' '", '''"' ""'o'-i m ■''^•
llic lilcadin.'s; hnt .SeiiihJe ' /. ,ft„-";^^''i''-'i ••^'"owal l.re, „m .'"''"^' ""■'■-f^ 'Veei • h
|,.l.t.ote do. ,>. Ti.,it the.;), ;, :; ■". '■■"' ""-■ ^V-itlini.t . I e ! Tl .'" ""' """• ' . \t
|,ai,sidi..us tn Hvoi.j the i.idiev ft "-■^■'•I'aney that it s„( jei, ' ,"''''• '■'l'''^' ^tinn .,;,, ' "?
Lllio klimvled^re „f it. /'■?,;.';'"-' l-'aintitf' nf tho ne e a ' ^' ■''";"'"' ""t'.v.. tn I? 'i '''"}
W'^M',l.'i"t"nia, knnwe "^^^^^^ . ,'■'-**• '' '■•'• '"""'■
_ , : '". •■•■uniiai [iieni iini w,,„i,i T V '''">' **'aH „
J It lias a cniiditinii, tint in f I,., , ,
Ifcitliiil, &e., wherel.v he -5 T"',' '' '"'.V
■«^il.a,ld a eniiseiiieiaJK,; •''■''''' ''^'i"-
,,.r.d, the |,„hey .si Ln I '"■'' l"■^^""■"-''
■it.-k.fendn.t?a„,, all,. ,,';. h'""^ ''''''"
«.1i.c„t aihlitinnal ,„...,„„„ > '"^".. an.l
m\ that Hheii the n,ili,.,. ,,...',;. "^ ap-
U-™t,.ldhydefen!li^,::,,^J-[-.'',.
TOtur iv.is ereeteil nn tl„. ....':'... '''''"^. " ai
tcmiin:
' -'~'^;€S -
(li) ry//,
'"'• ''•"•r,i!,,„.
'■H'C t» ilefen.l,.i,it.s : I . ', '""' "'"' ""t „ ■' "' '''• ^*-
y. A. ereeted an e :;;""?';'•;'' '"
"■eto ilefen,l,.int.sH:.V"''' •'''''■'''
.■..■..l.ttllueni„|itin,i, and • II. '''''', '^ 1''^''
••'■'■•'1. ••""' tint ,; e iise , len/ S r.''^ ^''^''•'■''y
»»« lliave therel .''■■"''''.""""' I"--
'•^■*'''''l''vingtnli\. "'^^''''--'^
M^^'il"rdnl,n,,lefo e ^ '^'/^^'''^''f ''i^'^.
'•y a llnjiev no .1 >i
I::'''''r'''''' i^^"M.,.S:f ,f':''^<'^ i-M and
"■'•'< 'vi'l't nn the inen ■*'" " X'>n.,nwder
7'- t!.o,.niiey«,!: '];:?;:;''''?,." '•'^'' '■'•'>'.'
tl'at the wnnLs '.'.''""■1^'""l I'v the oarties
i-....tii.iVi;,;;. ^-'i -j'u.-e,i; ;,„, tii.,„,, },i.:;;j^. ';:.:;'''• T-.a h:;;
kM-.ilonled,;:,defonee ^^^ "''*'; ^" 'i^'^- [h': ' n' ''' '^ '^ " '- " , n, : [^"'l'' t;''' -I m.ti,
^Ul., >.%/„. /„,. ,, , '. '/' ■ ^"'<^rj,oo/ ^ that lie wnr.j.s " ,a.,„. ' j' '■ t'>";M,y the paitie
ibLMunseiif I. ;"' .\''*«'^"i', amide! .,. .' '"'. ^''^^ ''""d 1 1 inM.\,i, ;..i, ., ' '. ' ^'I'l'^'atioii
;'«'"t .ndi.r.sed. ThenJ,
*ii'i.'ii. without n
itieu
n'^i'ii, and d
I'li-'a .stated .i
^'|"ll>nWlle
" e\iiii
ftmlly altered
took
'"""<- uniieu or eniiseiif I -"■."" I'Vnii
'><%-' that tl. "':„'•>', "l"^'' (^ 15
«" as to inei
'"-' prenii.se.s'he
■flit liiji
^Hiatilvfeii
'niiig the
[•iwv I'liluul (
'"'•• -H-'ld, that
'»« ^'"•I'lus.ige need inin
a.se the
.'i-'.'inio i
ri.sk
nee.
.■)S,5.
J/,1
i>lll,l
lint
'"( V.
■ tl
lui.s
\>H.S tl
Held
Wholl
«lll-i
'"^' ,l,'Ull[),,w-.
''i'l'li..,itin|,
y «'Xilmle,l
litiuil by
, . ;|."iiiiuii by |i;u.,,l
tlif l;ittt.r ' t''at, if f
illditini
!' I'lldor.sed
laiits
"LTe entitled t
---w. ■ - . ... ,,,,,
•u in-nveil, ^^i<^^'t, it .slmiild
'"• any eaiise t|
on a
|in|
lev
* "as ill;
I'V ail
iiti'in withniit
III,, risk
l^iiaii ei)uit
Untie
:o Mileeee
altl
11 on
'lOllc'll
ate the
or 1
in.siiran
nptii
'■"'"I'liiy >sliiMil,i
•-•!»
"■neideil
"!■'< I't-'iire.sentat
''•-■ '"I'nii Until
i.il with t
li'lll tn t
t::^i;;: ;'":?^'''^.•'y ^^ "^ V-;-''' -- tl
nf tl
•'i''f",viv,.usiiot
*'"l'"llllll)LMU
F'' .yiitiinl fin'"/
■^m>t duly aiitl
•i'lioat
"■'I' llilent
en tnthei
I'Mlllll-
in.s
aire<l
Inii „
■lull .-in tn.l,.
l""Veii; mill .Sen. 1,1. t,
n Mill.. ■.. t ^ * *'»
f l.ar.d '-^taliie l.;^.|i,;rtini, of'X''.'^ r''""M .vfuint
...A I ■ loo.......*.:..! ,1. "'"1 i,jn_. Ifi.niiiti.^ Tl 1.
"■ii^'"l, l.iit his ; <'.>»sential tl
'lat th
ai'.swer. /,„„,/.
.'/ v. A
•at such ■ '"iiiatinii of th
I- Until
{"••.niiiiii
Held.
not
1*^ tll.lt liy
"lie of th
■•'• <^"-. i-'S il li. ■;{
"^ i".'<ii|.aii,
I'lvi'cde the ter.
'";/«/■(( '"^ ''"t«'in|inraiieoiis and t
'"It that tl
■I'li'iate tho ri.sk! 'l,
h.it th
'k'V niiidit
"»««'.;; KS"? :'*..!-.- 1 K,":\r' ;r':rh''
i"igf.s of occi.|,ati„„
th
hat in this
■ii^iii;; imt
ll" lllle.irnrd
"-' '•oiiipany e.|,ii|,l
that tiiuy
ore w;w ev.done.. fV 7 ' """"-'I
"■'"-" tiJ shew a ter
, I'l'fniiiini :_
'"tliol.-u.tssetont,
iiiiiiatiou of
1h;vj
INSUHANCE.
INK)
tilt' rink iiiiclcr tlio ciiiulitioii. f'tiiii v. f/Uii-
cii-.l,;r> ]!!.■<. (■„., '.'7 il H. 45.'». Sue also, -S'. C.
V- •-'17.
Oni'iif tin- cciiiilitioiis (pf till! iiolicy ri'(|iiiriMl,
aiiiipiin (itlicr tilings, tli.it w lioiv jiriPiiiTty w:im
|iai'tially iliiinii^t'il l>v tiic, tliu iiisiirt.'il hIiimiIc)
idi'tliwitli c.'inst' it til lie ](iit in iih ^'imil I'diiditiiiii
iiM till.' i^.isr Nvniilil alliiw, iLssiirtiiij^ tlii! vaiioiiK ;
nrticlit.s, ami Hi.jiaratiiij,' tlii' (laiiiaj,'('(l t'niin the
iiiiil.iinagi'il j;iM)i|s, so that the ilanri^u roiilil 1
i'a>ily he as'ritaiiiril ; ami shoulil i:uiisu a list of j
till,' whole to 111' 111 iilr, al'tiT which the anionnt
of the ilainajii' shoiihl he ascertained, i^c. The
declaration on this ]iolicy alli';,'ed a total loss of
the iiro|ierty insnrcd. The clcfeiidaiits jilcidcil,
lifter settiiiL; out this condition, that iHirtions of
the |iroperlv Were |p.irti;dly damaj,'ed, liut the
lilninlill's ilid not, with regard to it, coiii|ply with
reiinireimnts of the conditions. The |ilaintiir
replieil tli:it the ])ro|icrty wholly destroyed far
exceeded in \ .line the anionnt insured, and that
he siii'il only 'or the loss thereon, ami not on the
|iid|ierty |i 11 ti illy <iestroyed ; Meld, replication
j{ood, for that the eoiiditiipii was not applii'alile
\i here tiic claim was cpiily I'or goods wlioUy do- '
stl'ipyeil. Held, al.s(p, that the replieatiipii was
not .1 departure, fiprthe plaintill' under the decla-
ration for a total loss nii),dit recover for a partial
one. t\'i/li'iiiniiii V. lliiii(t-iiill(Uiil Alulmil l'"iri
1 11.1. (%,., •_'(•. ('. r. •_'(i(l. j
(!. .Vofii'i-, .\<'i'iiliiif, (lull Prniif tif l,iiM, I
|.sv,' ,;,v \'u-i. ('. c.'i, .t. I, o. 1 I
I
The ilecl.iration a\i'rreil th.;t certain atlidavits
l((piire<l hy the cnnililioiis, wi.'ie niaile hy 15. j
lind l>. ; field, tint, proof cpf allidavits liy such ,
jiarties was indi.-ipi'iisilple, .is well as tliat the alii ,
davits sIkpuM strictly cipiiforni tip the terms of
the policy. Alih rniiiit \. W'l'.-J nf Srntlnnil ln-<.
(<,.,» (). s. :t7. " I
A eonditicpii that the iparticulirs of the loss '
.shall Ipc ;,'iveii under oath, within a s^peeilied
time after tlie lipss, must lie complied with liefore
the insured eiin recover on the )iolicy. Mft\iill
V. Miintriitl liilitiiil /iix. Co., •_• {.}. H.'i'J. I
The allid.ivit of loss had no jurat, anil wm.s not
in the fipriii ipf an allidavit, and <in that ground, '
annpiig cptlieiM, the plaintill' was jireelinled from
rec(PVering. S/mir v. .SV. Luirrritrc Coii/iti/ Mu- \
liKil /ii-!. Co., II (^t. 15. 73. ' I
New trial granted on iiaynient of costs, to en- '
uhle idaintiffs to give eviilenco of a waiver of '
this conditiipii, where a nonsuit would lie eipiiva-
lent til a verdict for ilefendaiits, the six months
having expired witiiin which the action must he i
commenced. C'lnicron d at. v. Afoiidirh An.i.
Co., 7 C. 1'. I'l-J.
The insureil heing hound within fourteen
(lays to furnish a statement of claim, with proof
thereof hy allidavit or atiirmation tr/icn rn/ netted :
Held, the jury havini' found that a jiroper ami
hona fide demand had not heen iu;i(h% that the
jilaintiH" was entitled to recover. Cniiiernn v.
Timi'K ami Jieacoii Fire Im. Co., 7 C. P. 234.
The company had re<iiiiroil certain invoices,
which till! plaintilfa refused to proiluoe, though
it was in their power to do so ; but the jury,
heing satistieil on other evidencs that the lois
liad been actually sustained, found in favour of
the i.laintilFH : Held, that n.pt li.avinuc„in.,l, i
with the eonditip.n in the 1-li. y, th.' ,,|; , ^
could not recover, ami a mw triil wi« ,r .
(Jimi Mni:t,l nt. v. IC<itulHl,lr /iii.i;,., li'MJ i>"| ,'.,
Held, that the evidence Met iPiit li,.r,. |,
HuhMt.inti.dly the same as at tlic | i,t tiui ","\]^
suiiported a ver.lict for dcl'.'Md.ints „i,'t||', " ■^' I
setting up that voncher.saii,l . xpla,nti,„„ Xt I
the pl.iintills couM have given, \^;^,\ ,„ . , '
furnished as reipiired. .V. C. //,' -jd; " "'"'
One condition was, that " In en.,,. ,,f |,,,
damage on a poli.'v a.ssign.'.l, where tluivTM,''
actual transler ol the pr.ppiitv iii<iii-,..| ,„. ,
1 1...11 1 1.. 1... .p • . . ' I '""> "
-•H.». li. .•nil; .V.r. i„Ai.,„.,lJ
hp,ss shall he maile hy'th." niMiiv.l iinHi,'J!,'ri'' !''|
with the eipmtitions of tins poji.v, in like m,,,.,,.,
as if noaHsignnitnt had l.ccn iiinlc,' ,Vc. lii ,. .
as totheexai't nicanini,'(pf such cipiiiljtii.ii. ),.','"!
V. Iloiiii' Iih. Ci •" • ' "
3 K. * \. 'im.
Declaration on a policy i„;i,|,. t,, ,,iic y, „n
whom the pl.aiiitill' >v,is assi;;i in ii,,,,^,,,,;,,
Thinl plea, that l.ciore tli.' loss, tli,' i,|,,i,„ifl
hecanie the assignee, aiipl lln' pojicii.saii,! m^n-J
property hei'anic ahsiplntrly tr.iMstcncil ,ni,l v,,|]
I'll in him, and he heciiiic .ind w.is tiir iiKni-,,
under the policy, and the pcisou Kiist.uniii
damage, hut tli.it h' did not give iiutji i j|3
loss, ,tc. : Meld, plea had. Kiplit;ilp||. iviiliog
tioli, that hel'oie the loss tiie proptitv w;,, |J
ahsolutely vested, Ac., in pliiMtill', hut 11, ,tj
had an insurahle interest in Ih,. pinipirtv ti. thi
amount of the policy, w lii.ji dctciiil.ints Un
and they renewed tlic policy to jiim f,,,. v.iln, fJ
a year, during which the loss ipcnnitil ; ;iii.i Bj
who was the person sust lining Iosm, \i',. .^■A
the notice and jpioofs : Held, TpiuI, fipritHi^l
departure from the lirst count of tlie il...iiiir,,t:i
which averred a sole interest in tin: iiLiiiiiiS
and tli.it \\. had no insiiralijc interest aii.iri !io(
the piaintitr. JJirhon v. I'l-ofiinhil hit c
('. V. 157.
The piaintitr having insurnl his pminrtvwia
a mutual insurance coiiip.iny on tin- Ut iVd
her, 18t)4, for three years, iiiPitg.igi'il ittnoij
X., and on the 13th May, ISl!."), assi.'in.l t"
the policy. N. [iiid up all .ii rears of as.scs.sukuli
hut gave no note or security for tin' aniimiitL
paid, nefeiidants assciitc.l t^i tlie ;i.s,sii;iiiii.iit j
the 13th heceinhitr following. Tlic piniH rtvi
huriuid on the 'Jnil .Inly, I.S(;7, Tii" imtu
loss was given .and the rcijiiisit" .■illiilavit- im
hy N. His inortg ige was piid utt' in ISils.
in March following the plaiiitifl' sucii mi |
j)olicy. One of the ciiiiditinns eiiilursi..|
that all i>ersons insured and siistaiiuii:
should foi'thwith give iiotici', ami within tlii|
days deliver a pirticnlar aci'iiinit ipI siiii
signed hy them, and vcrilici hy tliuir mtlil
Held, that the action could not he niaiiit.uii
Per Morrison, .1., .\. was not the person insiiij
and therefore could not give the netKc .ii '
Per Wilson, J., he was insiiivil, ami cuiil'i 1
sued in his own name, Iml tlii! cniitract ^fi
surancc having heen alpsuliitely tr.uisi. i:o(^
him, the ])laintili' could not sue. t'tl.'j'
Gore DUlricl Mutual Fire lu-i. Co.,30\iK\
The condition reipiireil that the .v'<suicil slid
give innnediate notice of any loss nr cl.iiiiij
tire, within fourteen days, to the .ajjiiit
company, and as soon after as pusisiMi' '
deliver in a particular account uf sui'b liii(
it;?,..' .1
\XU\
ml
M, tlrit n- l,avin.M.,„„,,|„.,l
m.U >.,.«• trial w;.,,,r„„i..,l.
;viilonc(! H.t nut luru, i,,..
t t..r 'l«'l''ihlaiits,,„tli,.|,|,^
Hi''iM.'in.l.xj,lai,iti.,i„wl,„,i,
I havi. HIV,. II, |,a,l „„( |
Ml. .V. '•. //,.,...„) "I
iiH, tliat "liK'as,. „f |„„ „j,
V assiyii,.,!, wIk'iv tli.T, is m,
IK' iiio|MTty iii-.uiv,|, |,|.,,„, A
l-y tlio iiiMiivil ill n,nt„rmityl
,"'/'"■• 1 'y-ii'likomiuin;,!
iill.,M.f silrli ruihlitii.ii. )),u;'\
tl,». li. :ir,.t; .V. r. in ,\i.,„,,lT
I \<'<\wy mail,, til oil,. I;. J
I' >\aM ..issi-ii,.,. ill iiim,|v,.|,',.yj
K'tnn^ til,. |,,ss, tin. |il;iii,tir
•, Mild til,. |iuli,.i,.saii,l iiLiire,
isiiliiti'ly ti.aiisti.|T,.,laii,lv,.jt<
ln.,-aiii,' !iM,l wa.-i till. iiHire,
!ill,l til,. |U'i-wiii siHtaiiiin
1 ■ iliil II, it ),'ivc imtii'i. 1,1 th
.l<.ii l.u,l. K,|iiit;!l.l,.|-, 1,1,01.
Iif los-( till. |iri,ii,.rty w,is naj
iV,'., ill iilaiiititl', l,iit l;. ,til
iturcst ill till' iiii,j„.rty t„ til
,'y, wliirli ,|i.f,.|iiliiits kiii.|
\w |,i,li,.y til him l'i,|. v:ilii..fj
■ll till' l,iss ,,|.ciiri.L.il ; iiiiil L
111 sust lining luss, it,.., ^iJ
it's : il,.lil, l(a,l, fur it h;ii|
lirst count ,,t' tlic iliji-lnutioL
)li^ iiiti'r,.st ill til,: pLiiiitiJ
iiisuralil,. iiitcivst apart in
■.<"/i V. I'l'driiidtil In*, i'n,.
iiij,' iiisiin'il Ins iir,i]n.rtv ivii
ciiiiiiiaiiy 1,11 tliu l>t h,.
.' Vfavs, iii.irt;,'.l(,'|.il it t.
I Slay, ISt;."i, iusigiii'.! t.i
up nil ariTars ,,f assissimaj
• si.iMirity l"oi' till' aiiiniiiit i
ussi.ntL'il t.i tlic as.sii.'niii.'iitj
fiillnwili;,'. 'rili']in,|ii.||v?
I .Inly, ISllT. Til... u.i '
tin: ivipii^it.. alliilavit. iiu^
ly,! was ]Miil nil' ill lsi;s.
1,' tlio phiiiitiir sui'il oil 1
lU t'lillilitiiilis i.lKlnrs'.l
nsuriMl .iinl siistaiiiiii:
;ivu iiiitii'i', ami within ihU
■ticulir aci'iiiiiit ii( siir
ml viM'iliijil liy tlu'ir lutlij
,111 coulil iiiit \iv iiiaiii'..iill|
s. was nut tlR'iii'rsiiii iiisuH
,1 11, )t ii\w tlif iiiitiof III 14
' was iiisun.il, ami cinil.
laiiiL', Imt tlie cmitrat't iif|
euii alisoliituly traiisliTW
CDiilil not sue. /V:;;'i'i(l
/((/ Fin Im. Co., 30(1. Hi
iiuirt'il that the assiirei! sli(|
itice of any loss or il.iiii;i2
en ,lays, to the .ijjciit
jddii .after .is jiossihli' sh|
L'ular accoiiiit of such L>
'N.si^i{AN('/.:.
iliniiX^. "iyiieil witli thoir ,,..-,. I 1
S.I liy their oath or .■i(lini,.,f ,,'■""•'•,'""' ^'"'•i- tih'fit
w.re on o.tii ,... a.i;;;:'.;i;:;;'v-;,;;;-;i;Uiso '-'■
1H42
IHi! there Has •■..' other"iMsurm "'" '*-*""• '""'
Iniit .T jiistiee „f fh" i, .. ! f '''""' "'"'
b..,.vimi,ie.| -vorai ,J„r',: tl t'M" ^^^^'^^^^^^^'^^ ^A^i:"''': -'I^' tlVa,!-,::;^
Jjiitir. ,K'.. an,! that i,. j,,.!;,.,.,,,! ^ ' ""' l"'i'tv, ami fl, . '^ • -^ i"it,.|.,..st,.,] j,, ti,,. , '
|lii(iiiMaiit ol his iiisiMiii , 1 ^y'V-liie "to V- U. .i|.J. '"* '"••<
Jw.^1 1.IK of the piaintids iveo ;.';':;'■• / '". ^''^' '" '■
Itoilints' at.',.nt. to .say tint '" '' "■'""
lrfMii,tiiieoinpli,.ui,'e with H,.. ,''', .l'''l"-'''** ••<eiit
|fc:Whtlief,;ii,.wini/;,,'i; V '''''^^^
Hiiy the piaii.tiiik .^ :^r"'f"i'i-.i,
Ikniiv iiotifv yon that a .i,. . '"'^''■""■". We
Ir-? 'HI the „i;,ht ,.f th.' ;(nl'!!f 'july '""'
''■•'V'^ ileeiiioil. ir,,,'| V 'i' ""M'"'^'" .slioiihl
'"'W^tratc-s,...,.t j •,;':;';!''''';'■ '''"'''^'^'t a,
''aMitthiM,.l,.N,.;';.,,'^''-'-n,.she,l„, .,,,,,,,)'
«-''V'^'-'-'f^'"l a "',;''■ r"'^':'",tliealll,lavit.
'-''•-• tl'in^s, that'. 'I^r';!^'--^ 'tin, ,:.,,!, J
'• ''"'Rioter ,u„I eireu ,st n ■"'I'''"''*'''! «itli the
r'^""'"'t. .".,1 th,^ :'^;rvf/''"'tssii,...,i
'>.V liiiNtortiMie ii„l ... I "y '"'"
.''-'-r^taia^l't ;"';''''''•■'''■''
"•- 1 . . . '^ •""' 'I till I.
i{fe.tthe^,ii„win:;,;,:.t '.•"•' "^ •'"'>-. i.y '"^^'"'-itotheiuZ,;:" """'^
L:, sau-niill. wE, le ■,£. " mm r'T'^'' ^ to ''•'.'..^ht I.y K t n ''T'"'.'
Iwbl any other insi ..^-'"": }^ ^ I'^uu "( W.. the iusn. I ' ' * '"^'-'^'
■M:isa«-iiii,i. wiioie v.ilne s-^m \V .
Jldlbl any other ilisuiiin,.,. . ii '. ■ * " '''^^'^
llMmll. the.ihine ,nCi ;'''-'"'^''' "" ••^•ti-l
L.,.i:ti,es„i,i..,.t^,;;,;;.;:,f 7;''•^t|.>•^vh..lu
l«.l hy us. The,. iMiililin. wj Isell"'"'"'''-'' ''^
"Illy. 'Ae. (a,lili„. ^ si;.,t SI. '" ' -''^ " .■■<■■'«•-
.o,4.,,cesatte,i,lin,, the, i'.'V ';'';•'/''•-'
Lanttdi, "Sworn ami allin,,;.! {>• "" ^""^
. ■ SmiiMon, ,;. I'"." . ^1 (•^«"i''l) The-
"•^•'■'. thit he,
''"•''\'l|'IMet.i,..t.
■ "" tl'f .sni.jeut
...,.,,UL.„
' hi' aetioi, H-.'i^
./ \y-. the i..«u,-eii, ;;:;;,;": ;:^''-"^^"' '-.soh,,„^y
";'-'«. The cerli,h.J^^^;'7'"-ivei,t after
'II i^'i.-j-
•'• of W.
'Iwithoiltfr.. , .,''.'• '■""M'''t the
. *-'-ii">"tf.'.u.s:u;. V . ,
•Mtli..r,.inni,.|,ti„„ei|. This ..;':''' '''^
'!«'" ''-'"ver, for the e, n iiti ', .^'".''''""ti"'"
«lfcl«ith. As tothe . , i''''"'""^''''L'li
HehU.Tha t eee.-t^,^!^
"«'remtime;l^,Ul t :"''"'"' '''^""i-
-{•j-i-tice or amila.'t , , ;r;""'~"y
*i<liv^.lltlie„»ia.rs,„- the f ^"''"' <"
iWUlritanoti ,.■......''• ',"."l'H''t.V 'Hsui-eil,
i ."•'^;t.ee, .Mnstaine,! I, .Vs ''.i"^'""" '!''""l -"' uyi
,">^ t,, the extent of .s..-,' "/".r '>' ""^ «'"'l
•'•;^■''.t. /".• it wa.s eons] t', ;„.,'■ '• •■'^•"''.v insuf-
'•"''^■'t).:ttth..,ire,a.; . " '''''V'li^istrateH
, '" ^'^''l l>r.ietiee, ami i j V I'"-'' ^^ • ''^ ''•'•n"!
(U.nes, ; sMstame,! the I'o.s.s !., ' I ''',' .^' 't''. th U K. I,,!
'*i:".|i'>'t iii.sni
''.V the (ire. ^
lit
:;;^:;?::'' '^ --«i^t..at,: x
Th
.")(l!».
'''' y. Ilntish
'l''''-'lilWMitei.,p,i,vi ,/';.'''''/•>■''. .'t'l'I l.a.l
"*< statement, ami k n, . . '" 'i"'^^ -^''t I'nM, j,,
-r:!'^--'''''y'"i>l'.n-:o.^T'>''-''''-itiut
imt he tr
'"^•ifiit. t'(
ruiiil liliiiitid"
^4
IMAGE EVALUATION
TEST TARGET (MT-3)
I
1.0
I.I
ilia iiM
iiitt 111^
lis lllll 2.0
1.8
1.25
1.4
1.6
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Photographic
Sciences
Corporation
23 WEST MAIN STREET
WEBSTER, NY. 14580
(716) 872 <i03
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1843
INSURANCE.
lN4.
1.11
"the:
iii't \<uAwx
1)y <lofcuil:ints had l)L'un Iniilt by tliu plaintirt' to } from invoices ami p.irtly from riculloctinii
rei)l;ici; onu previously l)uriie(l, and no rent was I not verified 1)V his aerouiit Imuks ,„.
due at the time of the tire. Tliere were no j voueliors, wliieh he )i;id l)nt dii'
covenants on tlie ]):irt of tlie lessor to keep in i nor liy his attidavit : — Held, clearlv im onni r
repair, and there was a covenant on plaiiitilf's aueo with the eondition. Irn-nri-.i v. V;„, ..
jiart to leave the mill in .-iiiHieieiit repair at the i Distrkt Mutual Fire lim. Co., 2.') (,t. [i ]o- ' ' '
end of the term to saw 2,000 feet ill twelve hours; I „„ , . , . .
1- L ■ 1 I- ii ■ ., i. 1 he account iriven, under a sum ar ,■ ,.„i;4.'
any maelunery not refinired tor tins T)ur pose to I ■ l i e n- i . '^' " /'"uiai (..jiKiition
1 1 1 ii I • til- If _i J.1 cnn.nsted ot an afndavit, statiii" t Kit ti„. ,
Ije reniDVeil l)v the iilaintitt or iiaid tor hy the ; • ,, i • ■ ' i-ii-ic tliu pre
■ ■ 1 1- t i 1 ! mises wei'C occupied l>v ilaintit as;i i-c..,-.i.,i .
siile a verdict entered , ,, . A . .,•' ' ,,"•'" '''"'e'lii^MI iiier
cliant s store ; tliat the wliole vuliu. ,,\ l}^^. „ i.
and merchandize dc.sti-oycd was SSIK); iiiid", i
accounts were attacheil of go.iils suM tn hi'iiil
shcv.ing liowevcr, nidy charges uf ''^'Muds I'si
invoice :"— Held, clearly iiisiitiicit'iit. !!/».'iv,m
(,'iirr J)i<lni-t Miit'iiil l-'irr .!.<.<. Ci,. •>.-, '
I
'.'■ 1!. ei.
lessor. On motion to set as
for tl e [ilaintill' in an action on the policy : Mor-
rison, .1., was of oiiiiiioii that tiie magistrate was
not concerned in the loss, witliin the meaning of
the condition ; Wilson, .1., tiiat lie was. 'I'he
court hciiig cpially divided, the rule dropped.
J/c/i'i/ixV v. I'l-dciiifidl Jii". L'li., 3't Q- J^- •"'•"'•
Held, tint thuallidavit of hiss, and the jus-! The jdaintili; suing uiM.n ;. pnli.v whi, ], re.
tice's ecrtilicate, set out in this case, were clearly ' <|>tii-ed a particuhir account of the In,., as i„ tl,e
not in compliance with t\\v. conditions eiidor.sell ' l''«t case, had given only a .statement tint the
on the policy, and that the plaiutilV therefore ' l"""l"--i't.Viii«"!-ed, e'on.sistmg „f gcneiMJ iiierelmn.
could not recover. Hehl, also, that mutual "li--^-; i'.' 1"« «*'"■«. "^vas totally cousiiiiuvl. as v.vre
insurance colnpallie.^ are not precluded from also his hooks of account, invoices, ami iiq.,.,
niakiuu- sueli conditions. Ar(;/r/r/ v. MuIikiI lii.t. ' relating to the Imsmess, ami tliiit tlic vain,, as
Co. <,/■ /'r<sn,/l, 17 Q. li. 524. ' ' I'L'arly as could he ascertained n-itlmnt sui^ii
„■,,,,, 1. • ■ ii t. 1 ! hooks, &c.. was .'j:?.OO0. His alii.tuvit wis it.
Held, that sworn c'litries n. the eustomdiouse I t;i,,,,e,l verifying this statement. The evi I l
of the .piantity and value ol goods imported l.y , ^^^ ^he trial, however, shewed tint lie li d U
the p.arty claiming damages (occasioned l.y hre) ,„^„^„^ „f ,-„,„i,hi„ ,, ,„„,^ particdiV lir ,'
miller a ])olicy, and who claimed a much larger • - - ■• •■ "^ ■ . \ . ■•"■"I'-isj
an
d
go to tile J
v. Pliii-iii'i- /us. Co., ,'S <'. r. 131).
Defendint pleaded the nou-fullilment of a con-
dition, Aviiieh reouircd the certiticate of the
nearest nngistrat.i of the cause of the tire, upon
vdiich the ])liiiitill's took issue. It aiipearcil that
the jilaintiir had sent defendants a certiticate,
M'liich they had returned, owing to some alleged
ii.ier a policy, aim wii» cianne.i a mucn larger through those from whom he had imreh-i.d •
m.iunt than aiipeared to have heen impm^tcd ,|^,i,,_ „„ ,.„„,,,iia„eu. no„lh.,i v. V;,,.,,;;.: iZ
uring the period claimed tor, were cviilencc to ! ^j.;,.^ Jfn/,,,,/ p;,-,. .\sx c, o-'d i> ,.; "
o to the iurv as a measure of ihimagcs. Liizdri' , " -•••.— ,■>..■.).
The reasonaldi; ccuistniction of tins cmi.Iiti.in
insullit
is, that the assured shall produce td the
pany something which will eiiiiil'i tiieiii tn
a judgment whether the loss or duiii;;i:e eli
for was actually .sust.iiiied ; and .^o enii^t:-.:
is wholly unobjeetioiiahle. ///.
The ]daintift', suing under a siiiiilur |«i
At the trial it was not produced, ' sent in his alKdavit, stating in yeiiei-.d term.
:»
1
value of the diti'erent lumls ot gond.s ilesti'M-,
hut without in anyway nientiiniiii;,' lii.s |..;
the huildiugs insured, the only sfafeiiieiit .;
them being that they had been tot;illy deftv '-.
and without veri yiiig his ilepositi(iii l.y hi-
count books or other proper VMuehei'.i :-lli
clearlv not sulricient. CurU,- v. J\7".;(/-i? ji'ii
trirt Mutual Iii.<. Ci,., 1!>C. V. 1 1:!,
The iPi'oofs of loss eolisisteil of
an Miei.ivi! I
nor WIS plaiutilf cdled 11)1111 to produce it, nor
any cvi,Iciiei.> given of it'-, contents : -Held, that
the ]daintil)'lnu%.ig established a prima facie case,
he was entitled to recover, and that it was for
defendants to shew that the certiticate was iii-
sutiicicnt. Plait v. Cure District Mutual Firr
1 11.^. Co., <) (.'. I'. 40.").
Declaration on a jiolicy made to jilaintilfs —
Plea, that by a condition on the i)oliey, any
hiss or damage was to be paid within three ' the plaintiff, stating that the store was tif
months after duo notice and proof thereof, iu 'destroyed by tire on the I'Jch March. ;;ail ;:ii
ctmformity with the by-laws and conditions an- , an aniiexed 'statement contained a true iiii'b.o]
nexeil to the policy ; and that such proof should rect account of the value of stock mi hiiii'i
further eontaui a certilied copy of the written the 20th October, ISTO, (about 17 niuiitli.s hvio
portion of the policy. Averment, denying that , the lire), of stock received since, ei the iiiv. lii
the proof did contain .such certilied copy : —
Jleld, bad, because .he production of the written
part of the policy was not a condition preceilent
to plaintitr's right to recover. JlidianhoH (it
al. v. Cauaila |TV.<^ Farju(r,i' Mutual and Stuck
/«.-■. Co., 1()C. r. 430.
Persons insured were bound, within thirty
clays after a hiss, "to .leliver in a particular m which a number oi mvoiee.s were im.-te
account of such loss or damage, signed by their , 'i "li'i'T eoutaming numerous nienioiaiida, tl
own hand, and verilied by their oath or atfirma- , "■'"^■'' ^ """■'= particular aceoiiiit nt t.i'.
tion, and by their books ot aocimnt an I other ""gl>t ''''■^■'i ''i^-" turiiished :-Hehl, 1^11: W
proper vouchers. " The plaintit}- sent in his alH- I *'•« l'i-''t case, that the statement was iii^utiidi'
davit, stating generally the v.alue of the goods ^ ''^''"•'^''"■.'/ '''■ A'".'/'"-" I --tru't Mnliuit Ik'.
saved and destroyed ; a certiticate of the reeve, j — ^ ^ • '- ■ '■*'-•
as the nearest magistrate, as to his einiuiry into 1 The condition recjuired the iiwuiv-! »ii
and belief with reganl to the hre being aeciden- ' fourteen days to give in wi-itui;.' an ae'iiiii
tal, and of two merchants ; and a book contain- ; their loss or damage, sui li .iieninit el I'li
ing a statement of the goods lost, made up partly ] iiave reference to the value of piMperty ik'jt;
value of goods .sold since, anil of the vahi-j
stock saved, and that the jd lintilf's lii>s t-'
sonal property was .-^2,24!!. !I0. The statewe
was attached to the allidavit, hut was imt its|
signed or veriHed under oath, and ^'ive no
tails of the stock on hand, received, Ae., ixctl
the value in bulk. < )iily one hmdc w;if iii'»l;io
1^11
1(1 i)artly from rerollectiun, I,,,,
• hi.-i iicciiuiit liiiiiks ,„. „{||^^^j,
!i he liticl Imt ilM ii„t i,ri„U,r,.
ivit :~-Hulil, clearly im i;,i,:]':\\.
COlulitimi. (n-iilr.'i V, y:,!.',,,;,
Fire //'•.■. V'l., ■_'.') (^1. j{. |o;
given, under a siiuilar (.MiKlitJ,,.,
iiHidavit, statiii,i,' thiit tin; ijiv'
piedliy ilaiutillasagwiemlinir
;hat the whole value df the (n.,„l,
;o destroyed was ssoo ; iiiiil°i.:,i..
attuehed of goods sold ti.liiiiir
er, only eharires of '•^'nu.ls i,.i'
1, clearly insiitlicioiit. Muln.n;
iitniil fin- A.1X. ('(,,^ o- ^^ ji ;j^,|'
; suing upon a pnliey wliiel, ,■,,.
liar account of tlie lu.s.y, as in the |
;ivea only a .stateiuuiit th;it tiiel
d, consisting of general liierduiii-
i, was totally consniiu'il. asv,\-re|
<if account, invoices, aiul iiaii.vsj
Imsiness, ami that the valuf. nsj
d be ascertained without fvA\\
. ^:}.(K)0. His athdavit w.w at-j
,f this statement. The evidtiieej
wevor, sheweil tint he ha^l tliej
shiny a more particul n- a(?rir,:ill
roni whom he had |iureh;i.seil ;
iance. /jiiiif!;,ij v. Xin'i.ir" Jiui
rr Am. Co., -jri'i,!. li. ■!:!
le construction of this C'lii/iiti.-n
iured shall produce tu th/ m
; whicli will eniid-i theai tn i.irn
jtlier the loss or daiiiaue elaiiiitK
y sustained ; and m eii;ist;-i!i';!il
;ectional)le. Hi.
', suing under a siiiiiiiu- i"il:cy|
lavit, stating in geiier.d teriii> tliT
Ifereilt liiuds of goods il-
any way uicntioiiing hisl"5.~o
nsured, the only staleiir.'iit a,-
t they hul been totidly ile
■eri ying his depositinu hy hi<
• other proper vmuher- :
ricicnt. ('diia- v. .'\'.'''/i,v IM
.-■. (■',., V.U'. v. 11:;.
f loss consisted of an aiiil.nt (
fating that tlie stni'e \va-. t '
re on the I'ich March, ant
teiaent contained a true aul
if tlie value of stock (ill liainl
lOr, 1870, (aliout IT nnuith-
ick received since, of tin
s sold since, and of tlie vali'.i!|
id that the iddatilt"sl"<st-.
was S'2,-J4!l.!l(). The stalriiii
o the atlidavit, hut was ii"t iu
led under oath, and gave U'
i;k on hand, received, &c., ^\t»
Ik. Only one Ijook w.as iin«lji)j
ulier oi invoices were iiiistid,^
ling nuinerous iiieiiioraiula.
jiartictdar aceoinit nf tht
eeii furnished : -HeM, in
lat the statement was insntiioij
iKjara D'.Mrh-l Mntnnl li-
m reijuired the iusnivil
to give in writing an ao'
damage, such aconuiit et f"
to the value of property ih'ai'<?
184.5
1846
INSITRANTE
rerify tlfe .same wS\^^''''' *'"^ «''e. an.I to to H , ^ '^ - -
A Ll .such voiK^t ---"t«. r' ''y ^'«''- ' ' .E'-Z''"''-';- y^' '-^ ''i'l "ot .. .,,,
wiiianv might tend to ,, •''V'''''ent "f the 1 m ifi .f *''■■'"' "''u, mir fo. ,,, ?r" '''■'* l"'*"
"!"'■, .md to prod CO '' r\r''-''' •■'^■«""'t and 'cc ^ /''^■'''^'■^fter, p od ce ,,'"''", ^''■■"' '^^^
pvesneh -l-lana .^i^' ^' , "'' 'i^^^videuce a, ; ^^^'^'^ ">^'I- till ha n' J 7^1 l''""'^ «"'^' a
m,tiire,i ; and if there jLf'* ''" ™^'«"naWv it in„ '";'"!''^''l ''.v the co,,, ,''''' "[ '\ '"■W-s.
or i:ihe .statement in :.^, '^'' "I'l'^^^r any fraud ; i.'."^?.?-' ''"'t the (ire oo . . "• . -^' ^i'^' trial
;;' [-'-nahk. time lie "
n ( lslll1^., .._ .. ""-'c,
«? insured; ;;-wch"w';'*' ""■"'^'' "^ th^;ti.ere"i;:;i„:
*.«,shehadnot ye ,i ^ '!!""^'""'''"''-''i. <-'<'"'-t ; a f uln'^''!' i'^ <li-^r"to. was fo. h '
--7t of tli loi;^^^';;"--''! accurate l!\ '---"aide tinie'i^^
^■*i. nther evi.h..nce H^' I '"''''■"'"''*. I / l"""^'*'' "" thi-, i' ' *'^^'^' t'"-' verdict fo,-
n-l.iinit.,1 on H,„ .>,'".• "'" I'onse in.s»>.„,i I -^"t yet roi,M,.f...i ' '"•—'.>• H.-^L'. j ,j^-.,.'
■"nijiany
, ..vouhl admit,
''^""^■'1 <"' the -jit \o,„ " T-'' insured P^"*: Kt rei.ortcd.
■ the idaoi.n. .:,,.. •^^'^<.^. On the I ''■>-!""->■ of a mutual „.„,,,„,
|£t:£,sr:s£S>/S.e^^£
'fe I'sAlinu', M-hich ).,1 l''f" "^ t'''-' ^-alucof 'ha„loftho,^."."-f«"f *'"•' 1"'^S ^^-e uml - .r
^^'i-rs heforo the Si :^"' [ri''"'-' ''y the I tiguo.:: S\i "^jiiS'^'f Ti ^^"'-^yi-^'n^l^L^;;
W;l,ate was reasonal,),. '• T '''- ^'at sueJi 'plea that t ^ i '■''^ "'^' ''I'l^^. and th , \
,teU:y,!enrn,dcd tor" Sr^'' '7">- ^ | -''WiS . '^ tel""' '""' '"'^ ^''''S^I S
W»l'l""t»iie without ..-ivin.' i^ '""' ,*','« plaintiff I plaintitr at tl tV ',''"'^ ^^'a-^ ioine, ' i
-I,'- '^-e.^ .vheK!"^h:, th- ceS.;:^^ ::;k C't-'^"*-^-^^^
"•'-^ad not cnipi'T'y^^,*'^;;'"!''^''- county^
that there were so ■, ,, • "" ^'"''-■iiinstanees
tl'at the two i^uv ^ :r": ''' t" tl"' tiveT^nd
°'^;«" the nec~Sr*f'^"'^'''''''''t'.ave
|BSi.iiiil)!e time did
f!iti"ii authorize! tlle'd.'m'n^I f i -
N«-..,"-stion forthe ; ; "Ir- ■''"^■'' '^^••tiH-
''"•ai^aed con ,''^{"^'y'' whether
««. runiished cm ,dic!l'„>i""^'' wl'^ther
»;%'!'tl-efort!,ejur' yl..' '*''^••-l'"■«i-
lie iltmaiid w;is made ]>v 1 t i ' '
.«i.,.,hity wasto visit tic •?!! '"•*"' '"'l''-''^'*- ' oi V" ^"" "t'CL'ssary ceuitic.V ".T ""^ "ave
f;"f'^"^!d make it/ nt Ho i' '"'^ *''« ' it :^ *'"'" '■''l'"'-ati.ms ^,w ' ^T'' '■'■^"^'''' to
^■'■''■'™t'''doi)ted the f, . ''- S"dio cut ! ^^ ^"■'* ""t hv accidr^Mf "'".""""1 as a fact tli if
C*' '" l«»l« Jl S ? .''""''rail"!., ami «l«.ii t„ l.ri,,,, £ ,"; "l''!'*l. Tlic fact, a-lie]
f> l:^
IN.SURA^X'E.
is
was sutKi'ient. Ifiitchlumn v. Xidijarn Dlstrlrt Held, tliat tliey were proclmled fn.m dlji,. .f
Miitiinl Fir<- Jus. t'o.— Q. B.— T. T. 187(). Not to tliu want of notice anil pidnf ,,f l,,ss '' '
ft (i/. V. )\'infi'rii All. ''
yet rejiorteil
A jKilicy of insurance on several <lifFerent kinds
of giiods for separate amounts on each is, in
effect, a separate policy on eacii class ; and where
such a jiolicj' reijuired the assured to deliver
".as particular an account of the loss and damage
as the natureof the case would admit :" — Held, lie
must give such account of the loss on each class of
goods, and that a statement of h.ss upon his stock tills replied, that when called
of merchandise, generally, was not sutlicient. - - . .
Liiii/siiy V. Ldiicd-i/iin- Fin- Ins. Co., M Q. ]?. 440.
One of the l)y-laws of an insurance company
provided tliat a detailed account of any loss
verified 1>}' oath was to he given to tlie company
within thirty days after the loss sustained : and
in ease of any misrei)resentation, fraud, or false
swearing, the assured should forfeit all claim hy
virtue of his policy ; and the act of the Legislature
(3(i Vict. e. 44, ().,) also recjuircd sueli proof to be
ih
L'iven within thirty days after the loss sust.ained.
J'lie a.ssured considering it unnecessary to do so,
did not give the jiroof until after the thirty days
liadelapsed. HcM, thatundersuch circumstances
the claimant could not recover the anu)unt of his
loss : hut senihle, if the proofs had not been fur-
nished liy reason of accident or mistake, relief
might have been at}'onled him. J/airb' v. I'/ie
Mai/ani DUlrkt Mitti.al Jus. Co., *J3 Chy. 13'J.
See Fair v. Xhii/ara DUfrkt Muluul J^ire lii-f.
Co., '2() V. P. .Siis! p. 1830; Coiilthtinl v. li„ii<d
Jnx. Co.-Q. B. — ISth.fune, 1S7(>, p. ISOl.
ind the next to
See, also, I.
sub-head.
[Seei'S ]'ir/.
conditions to oU
-18th .'une,
(d) p. 1812,
Wdh'i-
c. or,,
I'trt.i
of Condition.''.
. 1. O., (Hid the lichcdulc of
.'4, ()., Xo. ii»]
(a) A-* to Xotlci' ttnd l^ro(f of I^o»s.
AVhcre notice of the loss and the particulars
of it are required by a jxilicy, they may be waived
by the con<luct of the insurers. In this case the
declaration alleged that notice of the loss was
given to defendants forthwith, and an account
of the particulars of the loss as soon as possil)le
(such being the conditions of the policy) ; and
issues were taken on these allegations. There
were two separate policies on a shop and on the
gooils contained in it. Both building and goods
were destroj'ed. The lire took place on the l.Sth
of June, and the notices, both as to the shop
ISQ- H. 111.
To an .action on .a judgment recuvcn-il in X,
York, defendants pleaded that the juilLriin'iiu,
on a policy of insurance maile liy tfiiiii • tl
there w.as a provision in the pdiry, tli;it jii ■,
of loss the same would be paid within .siv
days after [iroof and adjustiiunt, an.l tli;it
proof or adjustment was ever made. Tliu In
iilFHii tl. ii ,;
fendants refused, not for the want nf such .,«,
or adjustment, but ft)r other and dililivnt ruLii
alleged in writing ; that they thcrcljy, awnnhi
to the law of New York, waived the cnn.ljti,
' pleaded, and under said law liecanie iiiilih- m
^ said judgment was reeovti'ed, upi.u pm,,!' |,|'<„,
^ waiver, without any evidence ot piudf „\- .iiljus
nient. Held, on denuirrer, reiilicatiim \\m\1
as the same defence could liave lnon iiliMd^l
the original suit it miglit, under '.'^ Vict. c. •.'
j be set up here ; .and wliether the CDiKhticm wi
■ waived or performed was a matter ni eviilem
I only, on which our law must pnv.iil. ir,,,,,/,
I et (it. v. J'rovinckll Jiin. Co., 21 (^i. 11, cl'j.
j Defendants, .among other jileas, trawrsnl tli
I delivery of a st.atementof loss, vcrilicil mi i.,vli
I within thirty days. It ap])ear(d the vaiii,.-i.! tb
premises destroj'ed was tjie (iidy iiiic.-.ti(.ii ai'tg
' the tire, and to settle that ;ui arhitmti"ii w«
proposed, but did not take place, and tlk- pmJ
were not sent in till the thirty days In
pired. The proposal to refcrj huwcvir
apparently after the thirty days, and after |i|:ii
tiff had received the secretary's k'ttci' >hn\
that he eouhl waive nothing: "Hcdd. tiiit tin
w.as no evidence of waiver of the cimihti.iu
the policy, and .a verdict fur plaintitf wiis
.aside. Xlminra Dlttrai Muluul F'n-i lii.<. '.,
/.('»•;.*, 12 (j. p. 12.3.
To an action on a policy, defendant- pliMil
non-perform.ance of a conilitimi reqnirin- tin-
livery of a particular .account iif the pLiiuti
loss, &c. The plaintiff replied de injiiii.i.
<at the trial relied upon a parol waiwr "f
condition by defendants' maiiaginj,' ihiv.tn:
seeret.ary. Qua-re, whether eviilcncc ni
waiver was admissilde, not hcini.' .siicLiall.v
plied; but held, th.it if replied it wmi'
been no .answer to the [dca, fur it w.mH hi
been setting up a substituted pariil cnntraoi
answer to the scaled policy ; and a nun-a
therefore ordered. The 27 28 \'iet. c. .)'<,
no authority to the directors to waive liv
and the goods, were given on the 13th July. | tlie perfornnince of a eon litiim prcai.nt.
Defendants then entered into correspondence
with plaintitr as to furnishing better particulars,
which were afterw ards furnished ; and they then
refused to pay for the goods on account of some
suspicious circumstances attending the fire, but
they paid the amount insured on the house : —
Held, that defendants were precluded from ob-
jecting to the surtieiency of the notices, or to
the time at which they were given. LanM'ln
V. Ontario Marine and Fire ln.t. ('o., 12 Q. B. 578.
Defendants before the trial agreed that no ob-
jection should be taken to the want of a policy ;
that the question to be tried should be couHned
to the cause and manner only of the loss, and
that all proceedings should be had in the same
manner, and to the same effect, .as if a policy
Lad been duly issued and were proiluced : —
less to the man.aging director ami
Qiuere, aa to the effect of that statute.
Xiai/ara DUtrkt Mutual Ins. Cu.. 2.") i.i B.
Defend.ants' secretary wrote to the ]!
after the fire th.at defendants deeliiiel liil
his el.aim in consefjuenee of the facts ii '
stated in his application for the policy ; mfl
plaintiff relied on this as a waiver of the ao
— Held, that such waiver slnmhl have
specially rciplied, and .Sendile, that if it hail
the letter was not evidence of it. .l/i'l
Gore District Mutual Fire A ■<.■<. ri;.,2,)i.'.i
Held, that the fact of the company, aflj
ceiving the insured's proofs of hi,ss, ivni
gilent for some months and until aetiuM li
was no waiver of the right to receive |
proofs. Mason v. Ande.^ Jns. Co., 23 (.'. 1
im
■were preclmkil fn.m ulijoctin,.
lotice and proof of l(,ss. ir,|/ji-,'
I Am. ''"; IS (,>. B. li).
)n a judgiiient rcoovcTtil in Xtw
ts piuadiid tliiit thu juil^'iiU'iitwiui
iusuvauce iiiiulf liy tlu-ni : that
vision in the pc-liry, tli;it in ase
le would l)u paid within sixty
)f and adjustMifut, an.l tlmt iio
nunt was ev(ii- uiadc. Tlif 'kin-
,at when ciiIUmI uimu t" [i, , lU-.
d, not for the want of such [imoi'
but for other anddilfuroiit ru:tt(i::j
ng ; that they theretjy, arcnrihiiK
S''ow York, waiveil the cnnilitida
nder said law hei-inie liahh-, anil!
was recovL^'ed, upi.ii pninf nt siifh]
,t any evidence of pronf nr ailjurt-l
m demurrer, I'eplicatinu hail, fnf!
fence could have lii.'ou liluaihil ia|
dt it nnght, under 'JS Vict. c. '.'4,1
; and whether the ciiniUtidii waH
formed was a matter of uviikMicel
I our law must prevail. Wiiiitl4
icUd //(.f. Co., -21 <,). B. (ill
among other i)leas, travcrstii tlid
itatement of loss, vcvitieil nn ua;li
lays. It apjieareil the vahic d! tli
oyed was the only i|iu:stinii ;u't«
to settle that au arliitratinii w«
did not take jilaee, and thr inMofj
; in till the thirty days lia.l ej
proposal to refer, Imwuvcv,
;er the thirty days, and alttr [Jaii
ved the secretary's letter >tatii>
waive nothing : -Held, thattliei
nee of waiver of the i;(ni-htiiiii i
1(1 a verdict for phiintill' wa.s
m D'l^tr'ict Mnliiiil F'li-i li'-J'-
[\ 123.
Ml on a policy, defendant- pkuU
nee of a comlitinu rut|niriiiu tlivr
irticular account of tlie |ilaiiitif
8 plaintiti' replied de iujun.i.
relied upon a parol waivii "t
defendants' mauagin^' diicvi"
^Jniere, whether eviiU-ncc "i s<
ulmissible, not being siicLiillyj
eld, that if replied it \v..uM '
,ver to the plea, tor it \V"UM
up a substituted piirdl cniiirao^
3 saalcd p(dicy ; and a ima-i:;
ered. The '27- l!S Vict. c. •>, -il
to the directors to waive I'.v |
nice of a condition pivocdi'iit,
managing direct(n- aiul
the ett'ect of that statute
trkt Mutual V^.s. Co., i") <i B.j
3' secretary wrote to the [Jai
e that defendants declinc^l i>
sonsequence of the facts iwt
application for the policy : m
)d on this as a waiver of tlic :ia'i
,t such waiver shoiiM Iwvc]
lied, and Semble, that it it b I
ras not evidence of it. -""I
[ Mutual Fii-f Am. Co., 25 1,'. I
I-^^SURAXCE.
III an action on jiDolievnf ;„„ tii-n
• f ld.s were not i„ \..ecord. , '".r*' ^'''^ V^'^'^h • I,o so w.i, 7 ^ , ^''^
nt
tifcatc stated that' the , ,.;';! T^''^
''''tu„i «h„„l,l ,,^, ,,,,;"[/" •'. L'-iidition that ,„>
;;7'''-'-"'t),j;:::ri';);t'r''V^''''''''^i^
;:;;!,r'-^'^'-thattimj;''!!-;,j!::,i;l;;--;'nu,i
;;i,:i:;; a;;:uir ,;:;S"r^': r t'- K
insure,! had .sustained Iss ,, f.' '*''''-' *'''^* *!>«
snml to tile amount claim 1 /'.'""'"-■'■ty "'-
apiieai-cd that the ecTtiH ' ^^' '"'" '' '"'* 't
»itli a printed form furnis h, ,1 /''"'li '".'"-'^■•"•dance
rt!i the pulley it nr^Sir-;*.'- well..
ml ill ill., possession wl„, V,"'.^" t'"-' ■"■'^».-e,
bnfs
insiireil
I tlie I Id
[ tiviii^'coiiipliuil
niijt;;'
! Iiini.
lUitil the trial, when "t],:,'.'.''.'," "'.'"'* '•'"'' ''V
*iv3iita;reof it : -Hd,l t),'./.; , "i'r'' ^o take i ■, ' "-ive ,(,,iie •-. i-i,.|,l i-
^' tlie mistake. S^^ '^"/l'-'^^ themseh-es ! '» -"-'t that tlie ' Ja H ' J I""' "'"' ='^ ^'-Wng
Iwipaiiyaltci: yL'iX'ivuunho unle'^ /!'" '"•"•"■"'eo
\lm tlieir ohjeetion.? 'K' ^"f, '"" ""t'''
|m«-!.tc,1 a w,- iver ot sue , V>'""''' ""' '^e
|k.Jea(>cait(V^v.Cam 1/ '^r'^'V-'^- ^'"'""In
\^0,. 17 Ciiv. 4JS !" ,.:lr.^- '^•"l'"«'il Alutual
, ."'I'.' coiiilitioi, was tl, ,f
I J"'-' ''yuinsttiK^"::;, ;,.•■;;-"* f.."i<i be s„,-
-^'-v months after tle;;''u-- ','■"'-*'* "''t''-
I *,1'^ Plamtitl- l-vsentclh";,,.,^ '/''•■; t'"s time
j t ^»a.s agreed bv pan,! b,t ' '' '"■"■"' ^heu
( ''^t"'y for defendants t In ^ ,' "'" '■""' ""'■ J>
il','-"^^'^..te his clain unt i l'':""ti»- "ouhl no
V^eiit until the 2;itii s^SLt tt"/''"' "-^'^ ' ;'"!i"'^'«- f'^' t cli^h ^'^''y ^^^''-H-y ^ ^
^--""^■a by the .1.^" r:,'^"**''-'-i.H-j;I^',"v.nderan e^ e ^ ^ "^t'^'^^- "■ Ipi^erCana^
isiiiiiei
pt td Send a
i lirdiiiisc
^ that at all
iiidt under tl
^■- nM, .suficie ? l'"''i;"«^'. ■•'« «;^a], with the name m J e '^""^' "'l'l"'«ito a
•ly
"-'^^''1 an aet!i
i.vinonth.s th,
1851
1N8URANCE.
videil tlie iilaintill' wmild refrain frfim suing
<luriiifi Huc'ii oximinatidii, iiiul while iiogotiutii)iis
slioulil lie i)eiiiliiij,' ; aiul that in C(iiisi<leratiuii
thereof ilefemlants wouM waive the conilition.
'{'he .secdUil eiJiiiit aHe,i;eil that ilefeiuhuits jire-
veiiteil jilaiutill' friini siiinir, hy rejiresenting tliat
iiiitwitlistancliii;^ they liad ;,'()i>cl ilefeneea to urge,
they Wduhl pay what they sheiild find to be
really due on an iiivesti^'ation of the ))laintiH"B
IxioUh and aceonnts, ite., if the ]ilaintitrs would
give tliem .-iullieient time therefor, and would
not sui' durins,' such investi.LCation. It was then
nverreil that sueh investiLjatiiinsaud nei^otiations
with tiie )ilaintitl Continued initil after the year,
when it was agreed that defendants should jmy
the plaintili' S.'iOO in full, « hieh they had not
paid. The tire took jilaee on the IStii August,
1874. The elaini papeis were sent in on tiie l.")th
.Septenilier. (in tiie -JStli (»etolier, the plaintiff
^vas ri'ijuireil to jirodui'i; liis hooks, invoices, and
vijuehers, &e. Me then placed liis claim in the
liands ol an attorney, who wrote to defendants,
and was told that without the hooks there coulil
Ijenosettleiucnt. Onthe:.'(ith l''eliruary, 187"), the
plaintitr aulhori/cil cei'tain ci'editors of Ids to set-
tle the claim as tiiey niigiit tiiiuk ])roj)er. Tiu;se
creditiu's employed othei' attoruey.s, who wrote
to defendants on the lOtJi Ajiril, thi-catening a
suit, iifter whi/h defendants' general manager
called on them and h:;d an interview "witliout
prejudice," in whieli he made an offer of J^.'iOO,
which was not tiu'U accepted. On the HHh
April liie attiM'ncys wrote to the manager otler-
iug to talicSSOd, an<l siiyingthat unless the claim
■was settleil at once they wiud<l sue on the policy.
On the U'lUii .April the boai'd met, when thisolier
was declineil, and the manager, v.ho was cdled
liy the ]ilaintill', swore that this deei.sion of the
hoard was at ouee eommunieateil to the attiu'-
licys. Nothing more took jilaee until the 18th
Septeiid)er, when the attorneys wrote acceiiting
tile oiler of f^iiOO. The defendants took no notice
of this, or of a suhseipient letter of the ITjth
November, and the ai'tion was bnnight on the
Jtth J)e>'ember. One of the attorneys, who was
ftlso junior eoun.sel for the iilaiutiti' at the trial,
lieing called as a witness, swiu'e that a few days
after the letter of the "iOth April the inanaij;er
called on them, talked of a settlement, for which
he seenu'd anxious, and s:iid that if two other
companies interested \\<iuld eacli pay 8100 more,
defendants Would do so as Well. One of the
attorneys deniiil notice of the resolution refusing
their oiler of .•■■.■|(10, but admitted tliat the mana-
ger t(dd him tiieu that defendants declined it.
No menti(ui was made of the limitation clause
during the negotiation : Held, that there was
no evidence to go to a jury eitlu'r of the agree-
ment alleged to ])ay S.'jOO, or that the defendants
prevented or « aived the performance of the con-
dition, <ir of anything which could in e(piity
prevent defendants from insisting on the for-
feiture. Ditri.i y. ('(iii<it/ii l''(iriii'r'.t Miihiaf Jit.i-
Co. — y. B. — T. T. 187(). Not yet reported.
Sondile, that defemlants could not be bound
by the agreement alleged to pay the $500, unless
under their corporate seal. / h.
(c) A'< to otlnr Iiisiiniiiri'.
AYliere there was sonn eviileuee of a waiver
of the notice of another insurance required,
which the plaintitV eouhl not take advantage of
under his replication, the court, iustcailuf ;ii|„|
suit, granted a new trial with leave tu auiwn
ltd/ton V. liiariiii Inn. Ca., 1() i}. W. ;;i(i.
To a declaration jigainst a mutual iiisiiriiin
company, defendants pleadeil, I. .\ii insiiriui
with another company, before t\v >.'niitiiii,'
the policy sued on, witliout defendaiit.'i'ciin»|i|i
2. A similar insurance after defi nilants' imli,
was granted. The plaiutill' reiilii'd, oiici|uita|,
gi'ouhds, to the lirst jilea, that the iusiuMiindi;
been effected with the A. Co., wiii'li IkhI f:iili.
anil the plaintiff notili(Ml defendant-; tluriiif, m
that said policy would not be I'encMed, tnwlii,
I defendants made no olijeetion, hut aftcnviin
'granted the ])olicy sued on, and reccivuil fn.
[ the plaintiff the calls on his lu-eniiinn y,iiU>. \i
I to the second plea, that the ]ilaiMtii'' luitilji
1 defendants' agent of the insur.-iucc, vi tlmt |
I might endorse defendants' consent tjiii-itn i
j their policy, or notify the pla'utill' if ilcftn,].!,,
j refused to do so, but that they did iiiitluT, ai
I afterwards made the plaintilf ]iay (•■ills imli
[ note : — Held, on demurrer, replicatinn Iml f,
ithel) Will. IV. c. 18. s. •>-2. avoMk tlu! ],nli(
I under the facts ])leaded, and theeomlitidii criu;
! not be waived by defendants' eouiluct. .Von
j v. yUuidva Diilriii Miilvul Fin- /;/.<. c, ]
I Q. H. ,')•>!».
One of the conditions of an insuraiici' |»ili(
]irovided, that if the insured iiad at the tiiiio i
the poliej', or .should have after. vanls, anvntln
insurance witluuit the consent; of ile:\aiii;uil
written o)i the ))oliey, the policy shdiiM licvdii
The phiintilf relieil upon a waiver of tliis umiil
I tion by defendants' inspector, who.se iliitv wa
; described as being "to examine into tlio ciiviii
j stances, to adjust the loss, ami to scrtli; nrn
port to the otlice." .\ nonsuit having' !«
j ordered upon the ground that the cciiiilitiniKvii!
I not be waived by the inspector, or in aiiv wa
I except in writing ; Held, that tlie uniisuit iv;
j right up(Ui the eviden.ee ; and the cmirt ivtiise
j to set it aside. (,)ua're. whether, if tlic casi'lia
been left to the jury, and they had fiuiiul tli;
the agent had authority to waive the cuiiiHtini
the verdict could have been alluwul tos-iiu
^fa■■<()ll V. lldi-tfnnl Fin ///.-,. r,,., ;',; (^i. |:. J;i
(d) Ol/iir CiiiiUliiiiix.
Declaration against a nuitual conqiaiiy. I'liiU
1, that before insurance the ]ilaiiititf hi
mortgaged the premises, which fact iii.' wi
fully and fraudulently concealed, i. Vnx.
the time of insurance tlu' ])laiiitilf's titl';
i encumbered as in tlie lirst jilea uiciitiiUKil
I in his application he did not expiv.-s tin
titl'' nor the eneunibranee, acconiiiii,'tiitln'
ditions and the statute, hut stated the iiriiuii
were freehold property. lieplicatimi t
plea on eipiitable groumls, that i;.. an atviit
the defendants, tilled ii]) tlie ]il.iiititf 's a]']
tion without noticing the ciicinnliraiuv'.
the plaintilf, in ignorance of tiie ceialitidii:
of the statute, signed it : that hcfeic the lirt
still being agent, infoi-uied ]il,iiiitiiV that In
i omitted to state the eneuiuhraiice in tlii'a]i|'lii
tion, and that it would be ueceB.saiy tnii;
the policy to the nuirtgagec, and to nhiaiii
fendants' assent thereto ; tiiat the pulicy In*
the lire was so assigned : that (1. gave ii'
to defendants that the plaintiff had uiurtg.
u, thcciiurt, hi'^tuail 111" luiou-
,• trial witli l^'''^'' t" MmA.
„.s. Co., U)*^ !■■ "'I'''
aiMinst !v iinit\uil iiiMiniute
iits^'uleatlod, 1- All iuMinuTO
,,.;uiy, 1ii^f"i'^' ''"• ;-'™iti»-..f
\vitlinut .lolVli(liUit» cniMiit;
'llUOL' ilfUT (U'frliaants' [mky
c iA''-">tilV ivi>liL'<l, uiu'iiuitalle
st iilfiv, that the iusuvimn'U
1 tln> A. ('<!•. ^vhi■•h luul fiiW,
,otilh>(l aefcndaut-' tlimi.i. mill
,-„uhl iKit hi' ITllfWvd, toviiMi
no ohjuotion, hut aftmvimU
cv sued <m, ami nxmt^A I>im
•■ills on his iiiviiiiuiii nutc And
,ica, that the I'l^nnt!,'' ii»tiW i
t „!' the iiisiiraiuT, yi tkit lie
aut'i'iiilauts' consent tlu.ivt» tin
,.,tify the i.hrutilV .1 ,l>fin,l;.,,its
Imt that they .lid luitluT, im,l
\, the vl'i'"*''^' !'■'>" '■'"" ""'"M
1 aenuivvev. vevlieatim; Itt.l t.r
. 18 s. --■ avo'iH till' ]«'lioyl
lli'faiioaVan'l tlu'e.maitiniH'nnilj
,V defeinlants" .■muiiut. .'/mYiKI
;.;,,.i,7 .1/"^'"' /■''■'■' '•"■ ''■'■' '*'
.maitions of an insurance Vulky
if the insure.l had at the tiiik' "t
ihouia have attcv. yards iniyotk.r
iH.ut tho consent "1 de:.ii'l»i. i
policy, thci.o;U!ysbmldhcvui.|
■olied 'ui-on a waiver ot tliw mvh
amts' inspector, ^vhose diuy w
,,>," to examine hito tho m«
■u.fthe loss, ami to scttk- on(
,lliec " A nonsuit liaviii- 1«
^lu.cMMmna that the eondilumo-.il
in.vthe inspector, or m any «:
„.'- Hehl, that theuoiwm^-;
"j^idencejana theenurtivlu.
()ua.rc. whether lithe nb.
Lc im-V, ami they h:-A t""'" ."''
''autln:.aty to waive the e..ii,lit.
1^53
INSURANCi:.
is.n
,n.ia have heeu allowol u „
Id) Oil" I' ('"I'll '''"""'■
,vinst a mutual eoi..i.:myl'i|
K,e' insurance the Viaintiti ta^
^:^preniises,whhdv.actheH
,„d«lently ^■""-•■^1^'\.,,-; ' U
insurance the phuntUl s Wl wi
'int,ielirst,.leanieutiom;j
i^-Strhuv::^::; d ti;. A
tililc .'rounds, tnai >>■•• . i
riiiC.i"vti«i''"":"'"'''j
1 i),e iircmises for ahout .'(800, and defendants as-
I wiite'l til the assii,'iiiTi<,'iit, and tho niortgau'ce
1 ksi'ver Hince lield it ; ami the action is l)rout.'ht
„ t" tiie amount of sncli eiicinnlirancc for
I tlic iii'irtjiau'ce, and as to the resiiluc for thc^
Iiilwititf; and that suhjeet to tlie encuinhrance
I 'ijjiitilf was the owner. IV'plieatiou to second
Itien. nil epiitalde i;rouiids, sulistantially the
lijiiu'. Ki'joiiider to tirst replication, that l>y
J<.n<"i tl"' conditions in the application, (I. was
|t!iH|il:iiiitilf's ai;ent forthc ]>urposes of tiieaii|di-
latiiiiK that until after the lire defendants liad
lijiititioe that at the time of insurinji there was
liavtiictiiiilirance : tiiat the notice given hy <!.
Iiliiimtatitc til vt the niort;;a.L,'e had been in ido
ly.iiK ett'-'ctin^,' the iimuMiiCJ, nor thi3 trm;
loinmitof the niort!,'aj,'c, Imt a inucli snrilh'i"
Iciwait ; and that defendants iS'ientedto the as-
l(ii.w.ie!it in i^'uorance of these facts; -Held, on
jiemmTt'r re)ilicitions had, and rcioimler ;^o(id ;
||(,t (1. must lie coiisidereil paintiil"s ai,'ent in tin.'
TrCMinl apiilication (to allow tlie assif^'ninentl as
kfll ,is ill tlie tirst; and this second aiiplicatioii
Ltridv iiiiiiliel, if it did not expressly state, tliat
|iieiiiiirt!,'>U« was not nndo until after the insur-
Ince Jiiliii"!'!!!' y. X'lifinrit J)'ist r'tcl Miilunl ln.t.
'i;u'. 1'. ;i.'!i.
PteliMtinii, oil a policy assii^'iied to ]ilaiiitiir hy
iiie >.. t'.ie iiri^inal assured, stitinj; the assii;n-
ciit tlicVL'iif witli the consent in writiiiLf of de-
In.i.mt-i. and on security e;iven liy ))laintill' for
Re I'lii'tinti 'if the preiniinii note reniainiiit; un-
tiil. till' ^ilhsei|Ueiit vatilication hy defendants,
■miiritill IV their elidorseiiiiuit on said policy,
Inscatitlini; pliintilt' to all the rii,dits of S. in
ihipi'ii tilt; same. I'lea, .setting,' mi a clian,L,'e in
If otcuii-uicy of the preinisci', a.ftor tho issue
( tk' vii'li^'y-" from a tavern to that of a stori',
^mielX. ciiiitrary to a comlitiou of the iiolicy,
lliordivtlk'iiiilicy iKicinie void, i'eplicition, on
isif.tilo griiuiids, in suhstaneo, that the rdleiicd
— u... tjiil; ]ilace liefore the assignment of
Itiv t'l plaiutill : that defendants were, hut
liiutili' \v,is nut, aware of said change : that after
ussii'inueiit and before the loss, jilaintilf
LMiitiiuliiit; to visit the premises to ascertain
IttihT all ciiiiditioiis of the jmliey hail been
ii|iiii.'il with, hut defeiidints" .i^ent jirevented
;niivi'i|irescntiiig tojiini that all eoiiditions of
jeimaey liiil heeii complied with, and plaintiil'
Ion sii.'li iviiresentatioii refrained from ascer-
piiis; tho alluded facts in the ]ilea contained,
ilw.n afterwards induced by ilefeiidaiits to pay
itkr iiaMiiiunis in res)iect of such insurance,
■diilefuiiilants with full knowlege of all the
Jti aoc'i-itcil Iniiii iilaintitr, who was tiieu and
itimieil t'l lie ignorant thereof till after the
koKurri'il : -Ihdd, on demurrer, replication
tliit ilcfeiidants must be held to have
lit I the all(','^d ciiise of forfiutiire, and their
tatililc ntilication of tlic assignment bo eon-
fcrid liiiiiliui; uiiiei them, notwithstanding the
Irhivai'hof ciinilition by the original assured,
Itlut tlie Slid hreaeh was still continuing at
ia<5i,L'imient (if the iioliey to plaiiitilF. Krciil;
^»nim D'.^lrlrf Miihml Fin- int. Cn., Ki
.131
foes ill which the original inlirniity of claim
■tie of the assignor will and will ujt attach
lie assignee of the policy. I It.
|i»stniction of the expression "change of
iirniov." Qui'fp. wlicthor jilea good. fh.
I A pidicy provided that it should be avoided
I by any .addition made to the Iniilding insured,
unless written notice thereof was given to tho
j secretary, and the consent of the board of diroe-
i tors thereto endorsed on the pnliry, signed by
I the president and secretary. I )efendants in their
j plea stated an addition witiiout notii'o or con-
j sent, by which they alleged that the premi.so'j
] became materially altered, .so as to increase tho
risk. The plaintiil' took is.sue ; Held, that tho
latter averment, being surplusage, need not be
proved, and that defeiid.ints Vere entitled to
succeed (Ui shev.ing the addition without notice,
although the jury fnund tho risk not increased
by it. /y'/'"'''"'/ v. Xhi'iiirii /):ifi-irt M ■ihnil Firi:
lux. f'o.,''_\S (,).J5. :{-i(;.'
There Wius also .an eijuitable reidic itio:i of parol
waiver by an ,agi;nt duly .'lutliorized, but his
authority was not (uoved ; and Senildc, that
such waiver could be iinanswei'. III.
Declaration, on a policy nii a wo:iileu mill and
niachinery. I'lea, in siibstiiiee, that cdntrary
to the conditions of the policy the premises wero
used not only for a woollen mill bul also fur tho
manufacturing and storau'c of shingles, and that
there was niisreiireseutation and eoiicealnient
and breach of warranty, the apidication stating
and warranting that the jireinises were only useil
as a wodllen mill, ;iiid t!i it there was no s[iecial
risk within I.")0 feet thereof ; whereas they were
used as a shingle ni uiufactory, and there wero
s]ieeial risks within l.'iO feet. Ki'plieation, on
eipiitablp grdunds, by way of estopjiel : that the
pi lintitl' had by a former policy insured the mill
with defendants, and before this jiolicy was I'xe-
cuted the defendants' agent inspected the premi-
ses, was informed nf and .-■.aw the shingle mill,
and on account of it m ide the iilaintill' jny one
half per cent, more tli;vn he had previously I'aiil
the defend.'ints on the s ime iiri'niises, and in
consider ition thereof the defciidanti executed
thepoliev : Held, on demurrer, replication bad ;
for it did not aver that there w.is any fraud or
fcvei. mistake in preiiaringthe policy, but merely
that one of its clearly exiU'Cssed terms ought not
to be insisted on by tin- defendants, by I'eason of
,'Ui enuity arising, imt .since, but prior to the ex-
ecution of the policy. Senilile, that the plaiu-
tifT's remedy was m ei|uitv. Cnurf'i.rJ v. ITcsi-
(■)•/( A.1.1. Co., 2;? C. l\ .'{li.i.
Declaration on a lire insurance pidicy not undor
seal, .alleging that, subject to certiiii conditiona,
the plaintiH" was (entitled to recover for loss of
goods by tire, and settim,' out the third condition,
which was to the eiV'ct that the plaintiil' should
give notice of every altei ition, kc, in the build-
ing in wdiich the goods in uired were contained,
and should have the allowanei" of the same en-
dorsed upon the poliev; and the 14th coulitioti,
to the etl'eet that the ]ilaintill' was to give a
written statement of his loss, within 14 days
after tho tire, specifying the iiarticulars and veri-
fving it in the manner described in the condition.
The declar.ation averred that the plaintitl' was
ready .and willing to give the notice in the 14
days as rei|uiroil, but within tint time the de-
fendants took possession of the g mils which
remained, and ])revented the plaintiil' from giv-
ing the re([uiroil iiccount, and the defendants
waived the s.aiil condition, and discharged the
jilaintitf from fulHllingthe same. And as to the
third condition, it was averred that the plaintiff
l«r)5
INSURANCE.
is:
(lid givu iintiui; cif ('Very altoratioii, &o., in wri-
ting, imd rciincstud tliu ilufoiulants to allow tlio
Kuiiio in acconliUK'u with tliu conditioiiH, anil tliu
dul'onihmts aoi,;Liitu(l the notice and waived the
cndor.seiuent upon the iiolicy, and di.seharj.e<l tlie
plaintill' fi'oni leiiuii'inj,' the same to l)e .<o tin-
doised, and altiMWards eoiitiniied and eonlirniL'd
tile poliey. I'"iftli l)lea, to the whole eoiMit, tli:i>
by anoLlier condition in the tioliey, no condition
sliould lie decnic 1 to have l)jen waived excciit
liy wiiliiiy endoMed upon the policy, anil .signed
l)y the gcni'iid agent, and that the corulition
(14th) I'djuiring a statement ol' loss to lie put in
in 14 days was not so waiveil. I'lighth plea, set-
ting out the third condition, rei|uii'ing notice of
change in liiiilding, A:i'., and averring that there
had hecii sucli change, and the plaintitl' did not
Jiotify the defendants of it in \\ riting, nor was
it allowed hy cndorsenient, nor did the di'fend-
ants waive such endorsement, ^linth (ilea, set-
ting tip the .same dc^fence as to the ■'{rd condition
tw the .")tll )itea did to tlie 14tli, that the coiidi
tioii could Hot, under the terms of another
condition in the jiolicy, he waived, exceiit by
writing eiuUnsid on the policy, and that it was
not so waived. iteiilii^ation by way of estoppel,
to so imich of the ISth pica as allc^ged that the
alteration was not allowed by endorsement, and
th.it the defeiiilants did not waive yucll non-
cndorsemeiit that the pliintilt gave notice in
Avritiiig of such alteration, and delivered the
policy to the defendants to have the allowanei'
of such alter.ition endorsed thereon, and also
to have the allowance of a further assurance
endorsed thereon, and the defendants ac(v,[ited
it for these purposes, and afterwards cindorsed
the allowance of the further insurance there-
on, and returned the policy to the jilaintill',
and informed him that all had been done under
the policy and conditions which was neces.sary.
The defendants rejoined to this rcjilication,
the condition already mentionud, that no con-
dition could be Maivctl except in writing en-
dorsed on the policy. The plaintitl' demurred
to the picas and to the rejoinder; and the de-
fendants excepted to the declaration, and demur-
red to the re]>lieation : Held, as to the declara-
tion ; I. That the averment of jirevention by
(lefciidants was a perfect excuse for non-eoiii-
pliance with the 14th condition; "J. That the
fivermeiit of waiver and discharge of the third
condition w.a.s sullicieiit, as being a paiol dis-
charge to the Jilaintill' from obtaining perform-
ance by the defendants of an act which they
were to do under an instrument not under seal.
Jacobs )'. The Kipiitable Ins. Co., 17 (.). H. H."),
tlissented from. The fifth jilea was held bad, as
1)eing pleaded to the whole count, and answering
only the act of waiver alleged, not the alleged
prevention by defendants of j)erforinance ; and
a i setting up a want of waiver in a particular
form to a ground of excuse (i. e., prevention of
perfornnmcc by defendants) not dependent on
the waiver mentioned in the plea. (Semble, that
tlie. declaration alleged separately such preven-
tion, and that defendants in some other way
waived performance ; and did not state the
waiver as a result merely of the alleged ])revun-
tion. The eighth plea held g<iod, as it concluded
with a good traverse, that the defendants did
Jiot waive the endorsement of the alteration, ite.
The ninth jilea was also hehl sutHcient, because
it properly disclosed a further reason why the
waiver alleged by the plaiutiti' should not be
cfFectual, in this, that the fact of w.'iivor
rcipiired to be veriliLil in a particular fiiim .,
that such form had not been observi'il. Tllr. i
|ilicatiiin w:'.i, l;"ld good as an estopiu.l^ f|,|. ,
plaintiir was led by condiict and acts nf the,
fendant.H to believe and might Wi'll Irivu litli^.v
th.at ;.o advant.age would he tiki'ii nf the n
ciiiiorsiition on the )iolicy of the .■iltriMti(,i| .,
might in cons.'i|iieiicc have rcfraiiicl irmii jnj,
ing elsewhere. The rejoinder was UM f^i„„\ ,
it was not a departure from but .■■U|i|i(irtf(l't
jilea denying the waiver, and shcwuil whvt
esto|i]iul ag.'iinst such denial shoiilil imt i|||,||
Siiiilli V. Coiiuiii rrhil I'liioii lii.i. Cn., H;f() |j ,
Conditions in a p"licy for avoiding the su
Irive, in case of a breach, the eH'cct ni iiviiiilii
the policy, not 'i/i-'u /"<■/„, but if the iiisuiau
company so elect. Where brcaclifs uf y;],
coiiiiitions had occurred before lii>.s, mul fi
comiiany, after being iiotiti.'d of siicli liiv;icln
took no notice thereof, but call-d for ^\^^, ,,|.,„|
of loss which were required on the fimtiii" ni't]
[lolicy being a subsisting iiistiuiiiciit, :um1 tin'
Were furnislieil, the coiu]iany was lidil tujiin
jirecluded themselves from aitcrwiuils stttii
up the forfeiture. T/ic Cuiiiiiln I.nnilnl r,.,,/
(/iiiiipiiiii/ \\ Till. (Jiiniulii Fiiriiiii\i' Muinil i^
St<ii-h lii.t. To., erroneously reported Tlir Cwul
Aijririiltnrnl In-', Cn,, 17 < 'liy. 4KS.
An Insurance ('oni]i:uiy cannot sit in.inilij
ch.arge of their liibility that tlrj pivlimimr
]iroots were del'ecti\c where tliuv ili'l nut nulj
the objection to them when furni.^i.vil, ni'iiiiii
after the suit had been instituted for tlieli.ss. Ik
Sec Jiiriih.iy. h'l/iiii'ihli' lii.<, r,,,, 171^, j; ;j;, .j
I8'_'7; harix v. Sf(i//i.i/i /'ruriii-iiil liii.l\,]{
('. 1-'. I7l>, ji. bSOli; Ciiii./ilicllv. .V,iliniiiill.:i,)ii
ro.,-24C;. r. \'X\, p. I8;i>: S'„„ni'.n v. IU„.
Miiiiml Fin- Iiik. ('c, 'S't ( . I'. 470, 11. KSiij!
S/iiiiiiioii V. (I'urr Di-i/rict }iiiti'iil Fin //,. 1
.•57 Q. B. 8S0, p. IS0!>.
8. Ari!'>iii nil /^^'^•/■^^•.
(a) l/nnihilhiii nf Tihn .
Covenant on a policy which pnivi.li/4 \'A
[ losses should be paid within sixty iliy-saltjitl
1 proof of them, ami that no suit shniil' "
taiiied unless commeiiced within tv.chv u^iiil
after /Ac rini--ii' nf iiftioii sli'inhl iiiu'ni,. I'l
' tint Ifii'/iiy tnnk jiliirr more tli.iM tHvlvr iium
\ before the suit commenced :- Jlcld. iw iltfda
L((mpliii V. 11 '(■,•</(■/•« vl.vs. Co., 1;! ',). B. :i!;i
, It was a condition that "payment"::
shall be made in sixty ilays after tlio less
have been asccrt.ained and [irovcd :"--HfU,tl
the time was to be eoiiiitcd from tlio tiiiiL' «i
' the assured had put in all the jii f niiivliioli
: relied; and that any ob;ci'tioii to tk'.<ntliiie
■of such proof must be rai-icd by a sjit'i'i.il ji
not under that condition. /,',iv v, /'/•■/■«
/».s. Co., 7 C. V. r)48 ; IJ^'fhw V. /V»W,
Co., 7 C. P. .').-)o.
A condition, that any proceeding.^ to
against the com])any in respect ef iiiiylnssi
tained by the assured, sliimld lieiiistitiUiili>|
in six months after such loss sliiiiililli:iii|^a|
Hehl, not to ajijily to a case wlici'o tlii'(''iiiii)r
refused to complete the policy, ami a nill J
tiled to compel them to execute a puiiiy, "'1
,;it till! fillet "f ^^■^>^'^'' \V;U
ci\ ill IV \KU'liciil;U' liiviii, iiinl
ii.it liooii iiUsui-vuA. TIhtu-
jrund as !lll ..•stMllllrl, luv till;
Cdll.luot iUul IK'tsiii llu.,\«.
jviiil mijilit well Uaveldii'Vol
\v(Hilil '»■ tikt-'ii ul the mm-
,,(.Ucy of the :iUov,ainii, mA
loe. luivo n-t'raiiK'.l I'l-mn iiisiiv
n, i^ejoiiiili'V w:vs1il1.1>;cu»1. fnr
•tuv«: t'niin liut »i\iin»'rtnl il,j
wiiivfi'. ami shewi'.l why '.he
lu.'h .U'liial shoiiia iiMt iiinily.
,;,,/ fiii'iii /"■■'• '■"•,'•«<)■ I'. 'ill.
•I iioliry fill- aviii'Vmy tlio same '
' blYMcl'l, tllL' ctVort ..i HVni.lillj.
')su /'(ii7i<, Imt if tlio msni;iii.:e 1
.(; ■ WliL'vi! liroaclius lit' fw\\\
„ccun-o.l l-ufnvo 1...S imiltk
,^,[Hi^■ nntitii'd ot sucli liro;idit8,]
lon^il', l>ut i:aU'.Ml fur the i.ri«4
,-0 ,v(iuirca..utliofi'iitm-"ltli«
,,l,-'istiiiii- in^tniiiiL'iit, niui thtso]
(l^y coinvaiiy washflil tnhwe
mulvcrt frmu ai'tcrw^aiU srttiu?!
■L, 77(1' C<iii'iil<i L'lii'l''' 'V"'i(|
/cVmc/.t /'.inm-'s' I/"/";/ ";,ill
... (•,-,, 17 rliy. 418.
... Cmil'uny i'aiiiii't set Hi.inilij.|
, Uvl.ility tliat th-. iiv.laiu.,,ir
fcctivc wUovc tlicy '111' iii't 'H
,„ thciu Nvhon t";'>;;i-^i;;'>. '''-"wj
;vill)ci;uiu:-ititutL'aiiu-tlicW /ij
siv;-, CM./''"" v--^ """""' -;''H
■)■> ,v is;-' ■ s'liiiiiiuii V. /(iK'n'iii
'' /);.,7,-;.,' .1/ ■■'"■"' '•-■• ''-■'■»i
iso'.t.
l!t.i(
INSURANCE.
18.^o
1 I, lii«» siistaimil liy tlestruutinii by tiro of thu jtayaWu to MoC. (the |ilaii[tilV), in ;,'iilil, cli> make
' mrtv iii^ii'ii'l. Pnili'ii V . limcun Ann. Co., lusiiraiieu, i^c : Helil, that the i fr.ict oii this
Mv ll^"' ' lioliey was entered into with ('. ; that MeC. \va.s
' linsiirLMl with a iimtual insuranco eonipany, ! ""t injured, ami enuld not sue on the i.i.liey.
i 1 imlicv e\i>irinL' on the '.'(Itii ,)nne, 18IW. , N«!iiil>le, that thu ni-^ertmn ni tlie i.oliey of thu
S, •NlViet (■ .'<7, passjd on the 18tii Sei.teml.(;r, • «"'''''< " f'"' "<• •" the name of all iiersons inter-
KiV'.in.te.l th.at no suit shimhl he l.nmght „n i^^ted " >te., or ''tor whom it may enneei-n.
from the loss, or one
L,v iiiilicy after one year
I ir fn"" l'>^'''"y till! aet, if the loss had haji-
\m-'\ I'^'f'"'''' ■■*'i^''"« the rights of the parties
I' |j,|, Ij.jrul (hsaliility. To a jilea that the loss
I, ^.,,^.,1 hifiire the aet, and that the action was
liil'iiimiieiued within one year from its iiassing,
lilelViiihiiit ri'iilieil, that when the aet was passed
\ n,is ill V''''"'" '■'"'' •''''y'"K f'"' felony,) .and
ruilitiMilfil tlieie until his death on the "Jlst Keh-
Irnarv ISli", ami that the ai'tion was eoninieneed
'la R'asiMiihli.' time after his death : Held,
'J'(i//iiifiii V. MiitiKt/ Fire
|i«». I". "J ' ' " ""> -■ ■'• ■'•
.Kliiii III-'. (!ii., 1(!
ijiiiiiiswcrti) the plea. '/'((//
ikfi). ofcrii'iiii, -7 Q. n.
<^ffl'l■ol^illl^i"l /iix. <-'<!
ArlhiK I'll /'.^'^•'•■-■■
, l/nii:l.ili',ii '!/■ V-."'-
1 c yWithin-^ixtvil-y^^'t^ti
I aUthatuosuitshiiulli.'".
V' ,,.,.,1 within twelve iniml
Iconime.ieeil ^y"im
L of ifti"" "I"""'
I'"' ' 1 . llelil nil 'l**
It conmienced •-- ,^.,
londitiou that "i,ayme"to!l
lumiui .at-i.r till' l'>5 5
L in sixty aaN.sattutiu
*i,'jr;'r-» '■:■■'•- '
r).w.
,n, that any rvocecdi^^toWt
iO assureel, sUouiu m ,^J
Usafter«uclilo.s.» 'J 1|J
apply t» a ^=^«";\^^'. ,; , „4
,,cl them to exeuut -n • 1
(li) I'lirHin til .\'iii'.
PtrHi'lmisoii, C.T. Sec. 1 8, (i Will. I V. e. 1 ,S,
.htiiii'te mutual iniuranee eompanies, ajijilies he entitled to receive should
Inlvtii'ivlisiihite alienations, and the plaintill's in
a^eus niiirtgagees were not entitliid to sue in
jltiriiwn name, I'er .MeLeaii and Burns, .M.,
Jltvv.fiv si> entitled. I'liir/nii ,/ ill. v. <ii>ir DU-
liM'i'"<i(l''"-<' ''"■-■• ''"•> 1-^ 'i- 1^- •^^-•
I .hassi"i"'e of a policy of insurance cannot sue
I it in his own nune, altlnuigh the ci)ni])any
Kftlieivhy to iiiilemnifv the assured anil his
Ihi'iiin-X. .\iirlrir lii.-<. Co., UH}. H. 48.").
[ The iiiiliey insured V., " loss, if any payalile to
Laml M.," (the plaintifTs). The covenants of
i(!(iiil;mts were with "the assured ;" -Held,
iitthciiliiiitili's cmilil not sue npon such policy,
Itcmitr.iet lieiiig with v., anil that the aver-
btiii the ile<'hiration of an insiirahle interest
itlii-m was immaterial. En-nj v. I'rorinrlal
:.(M., IOC. 1*. -20.
would have enahleil Nfcl'., lui shewing interest,
to recover; .also, that the words, "as hroker" or
"as agent," following after ('. 's niine, would
have let in ]) irol e\ ideiiiH! to shew the interest
and right of an unilisclnsed [irincipil, who could
have sued on the policv. MrCulhiiii \. .Ktnn
lii-i. Co., -IQC. \\ -JS!).
.\ policy was etlected in the name of H. & I).,
then \iirtners. After the tire, ,ui 1 two months
after the making and delivery o! the statement
of loss, I), assigned ;dl iiis interest in llie policy
to H. : Ht^ld, that the action was properly
brought, and the st teineiit of loss m ide by H.
.aliMie. /fii'r/iiii-iiiii \. .\i o/tirii hi.ilr'n'l Miilmif
Firr fns. Co.—O. B. -T. T'. IS7(i. Nut yet re-
ported.
A lire policy, in favourof a mortgignr. cont liii-
I'll a clause iiroviding that in tiie event of loss
under the policy, the amount the ,assur,'d might
ji.aiil to A. li.,
mortgagee : Held, reversing the ilecree below,
14 (,'iiy. 4(il., that this clause did not make A. L.
the assured ; and that a subsei|Ueiit breach by
the mortgagor of the eonditinns of the [lolicy
made it void as respected A. L.. as well as him-
self. iSpragge, V. C diss. l,'iriiiii-''oiif v.
Wi'.-itcni Inx. Co. !(> Chy. !>, in .Vppe.d.
Soe Kiintz v. Xiii'inni Ditlnrl F'.i\-
l() ('. v. 573, p. l'-7:5.
ilsi
Til,
J IIX. ( 'o. ,
[.See,
I. 4, p. IT!):).]
i;) ]li-j\-rriicc to .irlii'i-fi'i'in.
iTliqihiiitilV, owning property, insured it with
By a condition endorse I on a puli .y of insur-
ance, the company reserved to itself tlij power
of having the loss or daniige siibiniUed to the
judgnientof arbitrators. An.ictinii h'.i.ving been
brouglit on the policy, and an ap[ilie itioii made
|liKit\i:il iiisunuiee eoin[iany on the 1st Decern- ' under ('. L. P. Aet, s. KIT, to stay proceedings :
ISi'4, fur tiirce years, lie mortgaged it to ; -Held, I. That the arbitration iiiteii led by the '
It X., ami on the Kith May, ISli.i, assiimeil to j condition was not merely a \.iluatioii : l'. That
tlii'imliey. X. paid up all arrears of assess- | the agreement between the parties was- not void
Jits hut ;,'ave no note or security for the ! for want of mutuality, and that the case came
iiiiit impniil. Defend ints assented to the within the scope of the statute ; X i'er Dalton,
jjinioiit on the I.Sth December following. ,C. r. ,0 7^., that the plaintill' was a "party" with-
iqiminrty was liuriied 111! the 2nd .Inly, lS(i7. j in the meaning of that section. I'roceedings
Is ut.tiee (if hiss was given and the reipiisito | wore accordingly stayed. .Mflmii-x v. Wi-xUrii
ilavits made by X. His mortgage was paid An.x. Co., 5 P. U. 'l\'l. C L. Cliamb.- Dalton,
iiilSiJS, iiiiil in March following the plaintiff [ C. C. it' P., and Gwynne ; aliirmed in 30 (I. B.
lion the p'lliey. One of the coiidituuis eii- : "jSO.
ilwa.s, thatr.ll persons insured and sustain- I
'.nsssliiitihl forthwith give notice, and within
likysileliver a particular account of such loss,
pil by them ami verified by their oath :- -
»1, that the action could not be maintained.
nlorrisun, ,1., N. wiis not the person insured,
Itkrefiire ciuilil not give the notice of h)ss.
pMlsiiii, .J., he was insured, and could have
Jinhisiiwii name, but the contract of insur-
(liavingboeii absolutely transferred to him,
Iplaiiititt' cimhl not sue. Fitxiji'mliJ \. Gore
myhUmlFU-e Im. Co., .30 Q. B. 97.
I mriiie policy was in this form : The .Etna
|t'«., iif, &e., on aocouut of C, loss, if any,
117
(d) F/i'(iiHiiij mill Fr'nlriiri'.
Where a declaration on a policy was in the oM
form, containing speeitie averments of perform-
ance of conditions precedent, it was referred to
the master to strike out the superlluous matter..
Puttimni V. Proi'iiiriol /ii.x. Co., "2 P. II. I(i4.—
C. L. t'hanib. — Robinson.
Held, that in an action on a policy of insur-
ance, it is not incorrect to set (uit all the condi-
tions which, together with the body of the
policy, form the contract between the parties.
Seiuble, that a deciaratiou which did not set out .
1859
[NHURANCK.
III?
linitiglit lis well nil Inlrilf (if A. It as 011,1 ■
titl"M liclnlf. I'li'i, on liiinitilil,. viniii,,!, .?
A. II. WiiM ncviT iiifiTi'MtiMl ill tin. in.iinJ '
II oil a tin |i'V RcttlllL' out f.'VI'tH I ',.,,. ; II 1 , ' , ''" "'lli'V Mi
. , . I, ■, 1 Ti X .1 I C.lllCl^llcil liy 11 I 11 •|MllL,'l'll|l'llt H'tMc I, „i, ■
t IIIIL'Ilt 1h' IllflTITll timt till' 111- „,„l ,l,.f ,, |'..j 1. ■■I '" 'I 'I'lllll
I Jiiicl (lutciKlaiity, liy winch a imliiv
gitoilM was Hiilistitiitiil mill tl
miL'li c'liiilitioiiM would lie lia'l. Fair v. ('iiiin-
il'iiiii Miihiiil l'"irr /ill. Co., (i 1'. J{. I'aS.— I'. L
("hanil.. Daltoii, ('. C. .(• /'.
A ili'fliratinii
fi'oui wluiiic'c i
HiiiaMci' «-.is cU'd'ti'il for the joint liciiclit of tin;
)il;iiiitiir ami (iiiotlicr : ilclil, bail, for not (lis
tinctly averring' tin: intercut of tlii! otlu'r, and
tint tlii^ artioii wa.-t limiitjlit on tlii'ir joint ac-
fouiit. /)ii:i/i>ii V. J:hiii lux. (Jt>., '2 V. V. •2.V2.
I)ei;l;vratioii on a iiolicy allngiu;^ that it was
"siitijci't to Miicli conditions hh arc contaiiiod in
till' prillti'd ]ild|Pos,il.s i.ssuril hy tile Slid com-
ji.iiiy," and that the |ilaiiitill' liad kept all con-
ditioiiM iiicceilcnt oil his jiavt, "acconliii^' to the
trni.) intent and ineMiiinji of tlio wiid )ioliey, and
of Hiieli eouilitions aa ar.; cint lined in the |)riii-
teil |iro|iosals issued by the siiil eoiii|)aiiy."
i'leii, that the (loliey was "siibjeet to siieh eon-
ditions us are printed on the back of the said
pidicty," and tint aiiionj,' siieli <:ouditioiis was
one (settinj; it oiitl w liieh the |ilaintill' had bro-
ken. Iteniiirrer, on the uromid that the eondi-
tion pleaded Was not she\Mi to be contained in
the print, ;d proposals: -Jield, pleaj;ood. Jiicuhn
V. h''/ii!/al>h Fire hn. Co., IS(^ 15. 373.
The deelar.ition allei^'iil los.^, and notice, and
as soon as possible thereafter, anil within 30
days, the delivery of Ji irtieiilar.s, sit,'lie<l, and all
the deel.iritions reipiired made on oath, and an
lU'eoiint vcrili(!il by the <p itli of the jilaiiitiff, and
sliewiii',' no otliei' insurinee 011 the premises.
I'lea stitinj; the condition by which the in.surcd
was reipiifed to j,'ive a particular account under
oath, and also to de;dare on oath whether any and
wlnt othin- insurance existeil upon the prenii.ses
at the tini" of the lire, and idleying that althougli
the pliintitF had ihdivered due account of his
los^, y('t he Ind neglected to inform defendants
Avhcthev any and what other insur.incc existed.
I'eplieition, tint ii;> other iii-uiranci^ was ell'ceted
on the luviperty injured :- Held, jika bad, for
not traver.sing that the jilaintitl' had made a
declaration U]iim oath, but alleging only that he
hail neglected to inf<u'iii tlieni .as to whether
there was any other insur.mce. WiUiiiiH'toii v.
Kiiiiiiirn JJistriv/ Mat mil Fire Inn. Co., 14 C.
P. lo.
Declar.itiin, tint by policy dated 20th May,
ISlil, tie; dcfend-uits insured plaintilF against
loss by tire in .'-^1, •_'!)() on a stock of hardw.are, &c.,
contained in a frauu bitililing, &'c. ; and also that
by a ]Miliey of iStli dune, I8()l, defendants in-
.'•ured ]ilaintill' on 11 stock of hardware, &c., in a
building, kc, in .Sl,'.?()0, at 20 per cent. ; on his
two-stnry dwelling house, &c., .?800, and on
hoiisehdid furniture therein .'jiSOO, at ,") percent.,
m.iking in all S2,S0() ; and averred that from the
makin,' of the pcdicics the jdaiutitt' was inter-
ested in the preini-ses and stock till the lire,
when he .sust lined a loss of .•;?(!, 000 ; and aver-
ment that all thing.s neces.sary had been per-
formed by |d lintiir to entitle him to bring this
action : — Held, tint the declaration must becon-
.sidered as containing two counts, and the general
allegation at the end thereof as referring to the
whole declaration. J)iili- v. Gort DUtrkt Mutual
Fire //i.v. Co., 14 C. 1'. 548.
Declaration on a tire policy, averritig an aa-
signiuent of the policy, with the assent of the
defeiiilants, to A. B., and that the action was
"II oth,
lllleaninl |,.|Ht
the piemniin civditi-il by deli iidiiit-. t,, |,|. |„,:,
on ;ic(Miiiiit ol
miirrer, a gooi
also, a go id ley
till
lilt. ( '11
The followiii
'"'W Jiolicy: ||,.l,|^ ,„| ,^
aiiHivcr ,11 e.p.itv. and „„„,,|,
delelicc. M mil, III . V ir, ,, ,
l'.K'. I'. -.'TO. ' ""
condition \\
ll|iiV(
,. .. , • , . ,. '" '•"■'"'•■-'■■I on tl,
policy; Insurance subsisting or eH'crti'il v,it
other eonipiiiiiM must be Motitied tn tip. |, |
and if approved of, to lie endorse | m, tin. i"',]['„
and signed by the secretary." I>cfeiiili!if< l,,,.;,;
proved their iile:i under this comlitinn, tlK'nlJ
tiff contended tint it did not li;tr tlii' ;>.!(;„„
Leave was reserved to move for a iiiiii.«iiit',',||,|||,
ground, and the |pl:uiitill' Ind a veidiit ii .
being another issue on the record. .S|.i,||,|',. (i ,
a verdict should have' been eiit.'rel fur
dants on tlu> plea, and the pl:iiiitiir lift t
for judgment non obs*- inte, for tint t!u'iv'i.aj|'
not be a nonsuit "liile iiii itlier i.s>i|u.^tiii.|s in
favour of the iilaintiH' on tli" reeur.l. .lA/,v;,;j
V. (jure Di.itricI Miihin! Fin ///-■. ( '...^ .'iO(i,|; j-.i
' T)efen<lants will not be allowed to iil.,,! ,,.
gother an eipiitiilile ]i!ea that th;- luili.^v.U
been assigned by plaiiitill' to secure a iiiiiri.|j(
debt, and that t!ie ainnunt of it ln,l lii-inija
to the mortgagee, and a legd I'lei tli it fli...|,||';|J
tifl' had ell'ceted a subsci[Ueiit iusiir.iiK'L' ivitlinj
notice, contr.iry to a condition of t!ie iifJityJ
Oil V. fjinr/iii'i/, l.iiiiildii, mill lll.iln- /„.,^ c,
P. R. l.'id.- ('. I,. Ciianib. -ilwyiiin..
fn an ai^timi 011 a liri^ polic'y, it auinMr, ' ■
.•vinong the (piestions ansv.-civd liy tin: ,•::.• ab
the company on ell'eeting the iiisiiriijci;, 11 is „
" H.ad the aiiplicant ever had any prujicrtv iij
stroyed by tire, and under what ciiviiiiist;iir,.j|
Was it insured, and in what ollji'i.," ^„^^■]^
the agent answen.'d tint the iilaiiitiHluul iitvj
before had property destroyed hy liiutliitl
h.ad heard of : Meld, tint the jilaiiitiH; ,ij j
witness on his own behalf might ]i^ :ifh_:\(
cross-examination what jias.sed )ii't\vroii liimjiL
the agent on this subjeot, but that tlu> iiliini;!!
.answer would be conclusive. M,-('iilli,4\ 1 ,
DUtrkt Miitiitil Fiir lux. ('■,., ;W Q. Ii. t:|il.
Action on a lire policy. I'liintiff ivi^oUjj
as a witness, and said: "I did imt tillK.
feudaut's agent, I Ind not been hiiriitiiiitin:
I w.as not asked by him." K. was oalli'il, m
Wiis proposed to ask him ipcstinns t.i omit.?:,
the plaintilf niion that point : HcM, that siij
evidence was ]iro|ierly rejected as rai,<iiig,ii
teral issue, jfrt'iilltir/i v. (foiv DiMrii't Mnijl
Firf !n.-i. Co., 34 t^). P.. :\Hi.
The deelaratiiin, after setting mil 11 irtiiil:
of a policy, that the assiuvil sust.iiiiiiij;
shoultl, within fourteen days, deliver in. ij'ilj
cuhir account thereof, i^c, aveiTod thi'iCTM
ance of all conditions ^in'i'cileiit. llc.Viiil;
plefided that the plaintilldidiint, within foarMl
days after the lo.9S, deliver in the ac uiuits;
ill another plea, that he did nut, althmii;!)
sonably reijuireil, make prnof hy liis ililirjl
ami books of .account, &c. The jilaintilF r 'ii
to the first plea, that the policy was nut 1
hi'h'vlf of A. IV iiHimiiluii.
nil l'(lllit»lllc' :.'rnllll'ls, tint
tci'i'Hti'il ill tl"' iii-"iV'l inc. j
lul-l' till' liw'* t-l"' l"'li''V \\M '
.,,HicIlli'llt ln'tWiTll lllililitltts '
y wllii'l' IV l">liry nil iitluT
,.(1 mill tUo nni':ii-iir.\ |iirt»t' I
,,,\ \iy c\rfin<l;iiit,i tn iihmtul'J
new ^loUi'V ; lli'l'l, nil iK-
swi'i' ill i^iiiitv. iiii'l "viiiliW, I
;,■,,,„.,.. M;ili.i„l. V, 1|■,,^,.„
•J7t).
.(iinUtioli w;is rinl'ivse.l im (In) I
,.,. wiil)si'*tiiiL; "I' I'llVrtivl v.uh]
iiu-it 'h^ imtitii'il tu tlii'l»ur4, 1
f, to I'L' iMitliii-M'l (111 tlu'v^lnyl
^I.civtiir.v." IV'tniKlinUluvm^l
iiii'.lcr tlii^ (Miiiilitinii, tlK'iilim.l
,it it tliil iii't li.'ii' tli>; '■'•'■tinn.l
ed to luovi! foni UMiisnitniitliijI
iilaiulilV lii'l 'V vcvilirt, tlnr«l
iiVoii tla' ivvovil. Siniililo. t'nti
h;ivo Ih''-'11 I'lit 'i''"l ''"' '1 '•»•[
I, lUi'i till' i>l:iintilV li'ft 1 1 iii"vj|
,1, olisUllti', for t'rit t'.HMV iMi\.l
it wliili' iuiotlnir is>nc st iii4i iai
laiiitilVoii til'' VLiuoi-.l. .V./;,iM
Uiilun! I'in /»-■.'■..., oOl,l.l;.l.)l.l
ill„ot !'-• all'.W.'.l tn I'li.hJ
t.xi.i,' v''"'' ^^'"'^ "'■■■ l"''''y''«
V iilaiiitilV to srcuiv ii mnrUi^
the ainouiit of il li'vlli "ii |iaA
i ■[ «iil)suiiii>'iit m-^iivuH''- witli«il
; t„ a cou.litiuii of t!R'ii"licjJ
L. C'liaiiil". (Iwyiiuu.
on a I'm- voli.y, it aitraivlt'i:
lostioiis ausv.HTul liy tliu;:^oiit
L,.|V,rtiii^'tli'-iii'<"""^'"'™"™
pli.'ant oYoi-lia.laiiypiMlKTtyil
' ■lu.l iiiiil^^^'' ^^■''■^'^ ciivuiii^tair,*
{ ,,„a in ^^■llat ,>llir.. Z' toM'!,.(
K.f>.l th:lt the Vlallltltl iuul IKV
vtv -losti-oyiM I'.v li^^tl^'t
' 'llehl, tint tlio liliimtill, M
„wu iM'half iiiigUt k- ajk.l
,i,m what insse.l iK^ween m>u
'^r/r'trr,.,;iU.B..no.
iv tiro poiiey. ':';"'*'f ;t^1
,„\ sai.i: '•! a,a ...it t.ll ....
t Ihulnothcoiilmrutnii W
' , l.y him." K.^vas^ak:a™.
t.,,vskliin..l""«ti.'.y^;^;;to
,„„, that i-oint : lIol;l,tl..t
,tion, after s.'ttiii'.! out a ^lij
£vt the a.suroa M.stui.u, J
f fourteen .lays, -kUv^ ." a
Ithercot, iVc, a\eu j,LjJ
i^iii
INSUHANCR.
isdj
.,|,„n until lo'i.J,' lilt'-'' the li.v an,
,.,11 (laN-. alter ri'i'i'ivinj; it he ilclivercil the
ii'id to liotli pleas, that lie delivered an
that del't'iidaiit.s afterwards made
I'
biirt'
I |[ii>iiiit
Kli'llllt. "'" , . , . I !■ 1 -.1
rj||.f ri'i|lll-<ltlolH, wlllell «el'i! iiilii|illeil With,
j ,i,,|Viidaiits nevei' iiotihed them ill writing
Sittlie I'l""' wa«ol(Jeett:d to lierallse not given
time: lleM, on ilenniri'ei', ie|ilieatiipn had,
"iriiii/a deiiarturi' I'loni the di'daralioii. ruul-
,-,lx.Hnr '/"■■<.<;.. (,), i;. ■JStli.lnm', IH7(1.
lalt .1., ^'i'tiiij, ''!"■"-'• Not yet leimrted.
\ suit in this court was brought a;,MiiiHt nil
uiiwiifi' ioiii|i.iiiy to reeovei' foi' loss sustained,
Intli't i;nmiiil that the |poliey w.as not a perfeet
iiml Jii'iefore that th.! \daiiilill' had no
oivatlaw; hut the .alienations in the liill
|1 iii^it the poliey had been duly si;^iied hy
H, iirtsiileiit ami iveretary, and eoiiuti'i'si^'iied
[ftli.'UL'i.'iit "t 1. (tlio jdaee where the iiisuranee
■ ii.|)^.|.tc(l) ami was ready to lie delivered to
,l;ij,itill': llehl, that tliese allej,'ation.s must
jlaiiiu ill la« to ilielllde a delivery of the
Lfev, iiltliniifili it had not ;ietually reaehed the
liiitltrs hands ; and on this j,'roiind a demurrer
(Mit I't t.'i|ilitv was alloweil. Mi-rui'ldiic v.
L(ri</«.«. '"..-JOl liy. -KSII.
that within : ereJMe his right of ehalleii^'e if he idijeets tci tlio
juror'n jireHeneu. Kh lini'ilniiii v. I'^nnnlii W'vHf,
Fiiriiiirx /iiM. Cii., 17 ( '. 1'. MU.
tt<l'
Defendants gave trneh evidence to shew that tho
iiolise had heell hilllied hy iiile K., Iiy the |il lin-
till "s iiroeurement, as would Well h ivi^ wanaiited
a finding for defendants. K , however, had lieiiii
indieted for the arson and aei|iiitt 'd, '['lie jury
having found for the pi liiitilV, the emirt iifiisud
to interfere. (Imihl v. /!ri'i<li A nnrii'ii .\^<.l'o.,
'2- i). 15. {T.l
This ease li'iviiiL; I ii tour tinier tri.d, the
iilaintitl' having siiieeede^d twiee, and th.' jury
liaving disagreed on tht! other oee isions, and tho
defeiieu heing in the nature of a eh ii%'e of arson,
.1 new trial was refused. ,1A'' 'v" ir!, v. '/')/•. /)U-
trkt Milt ml Fir, /ii.^. r,,,, ;u (^». i;, :tst.
Seo Chixliohii V. /'forhi,'!,!/ Iii.t. Ci,., -JO t ', I'. 1 1,
p. IH'21 ; lli-ill-ili Aiiiriini Ann. ' 'o. v. l\'iliCi;iMitii,'23
Chy. 1.-)!, p. 1871.
(f) /iliilif til
i„u'i.- r.
ri III I II III -I.
I.\liiil against an insuraiKX! company on n
icv, iilli'i;^''! that the policy was made hy tho
luiiv, liiit iliil not state that it was under
; -ilcM, .'^Ulilcieut. W'lji'L'iiiiiii V. /'ii;/il! /il.s.
t,liirliy. KS-'i.
iTlicliiil alleLied that tlie policy h id heen dc-
-dlei<l, that an alliilavit of tiie fact
jsileiiiiiU'Xeil to the hill. /'(.
iTIi,. |iiilii.y was st.ited to ho to jiay any lo.ss m-
Vi.'' I IV lit'*', "suhject to the eonditions tliero-
ltii'l"i:M'il ' '. -Ih'I'l. that the l.ingiiaL,'e did not
Ifh tli:it tlio eonditions were eoiKlilion.s pruco-
kai.'l tlu'ivi'oie that it was not neec-jsary to
tmliii' [iLii'ipriiianee. //'.
llVkre an iii^iiiraiiee eom]iany set u]> several
n.'S siiiiie of wliieh they failed to lUilistan-
lle, the I'liiirt on dismissing the hill did .so
l.int I'lists. Iliiirki- V. \i(i!iiirii Dlxtrirt Mii-
i(f, IV .■{.«. Co., '2:U'hy. I'M.
tiiun Di^trhi Miitmil I'^'u'c In--. ('t>. v. S'uti-
llii.U). ."iiiO, p. ISIi."); Jiiirldii ft 'il. V. (Ion-
llwf .)/«/(/«/ ln-<. C, 14 (,». H. .'U-2, p. 181!) ;
Jiil.<ii;/v. Siii'iiirn hlslrirf MiiliKil Firi' lim.
I'SQ. B. 320, p. Ks;i7 ; Sinitli v.Ciniiiiiciriiil
li/iK. r(,.,;t:i(.». M. ()!l, p. 18.")(i; /fiKuri/ V.
yi Asnniltiirdl Jii.i. Co.-\). B. T. T.
|, \\ m.
(e) Difi iii'r (if A r.'ioii. \
fceik-fiiiil,uit.s by their plea denied tho loss
leusiiiil fni'iii, and under it desired to shew
Itlie Imililiii;,' had been desiguodly set lire .
j-Hclil, that this evidence was rightly rejec- '<
iMiltkt ail application to add such a plea!
«trial\v.is pniperly refused. Mniiii <t ill. !
H<«i.l.«. Co., 17 Q. R 190. j
i ilfftuce that the insured or his assignee i
Jlly ami maliciously set lire to the insured j
a,oiigLt ti) be as satisfactorily established j
(mimlsof the jury as to justify them in i
jctiiig him (if the criminal charge for the
lofftiice. The fact that one of the jurors
marchiihler in an insurance company is no
1 iur a uuw trial ; the plaiutitf should ex-
In his ajiplie itioM the plaintill' nntiuly repre-
sented the biiililing as furnished with a hriidi
ehiinuey : Held, th.it on this grouinl the poliey
never attached, and tint, the plaintiil', tiu'i-cfore,
might recover back hi.s preniium. Mnlr.ii \.
(lui-r JJislrirt Miitiiiit Fii-f A.^<. Ci., L'.") (J. V,. I'H.
Where a risk has once be.;uii to run, .inil in
subsei(uently avoided by some neL;leet ordcl.iiilt
of the assureil, there (^lnnot be a leturn onlereil
of any portion of the picini'im. //mr',-.- v. Xiii-
i/ani DUti-irt Miiliini Fir. In-., r,,., •_';! Cliy. I.T.t.
See />iiirbr V. <\niiiil i IJfi A.^.-<'iriiiicr Co., 'Jl
Q. B. u'Jl, p. 1871.
(g) Aiiiiiiiiit Ix'mir.'ru'ilf.
Where a person insures his house <u' g.io Is for
a part only of their valiu', and sutlers a loss eijual
to the full amount insured, tli.it sum, uiiLss the
policy be sjiecially framed, must be paid, and not
merely such a proportion of it as wiuild corres-
pond with the judiiortion between the sum in-
sured and the whole value of the pro[)erty. Tho
ciuiditiou in the policy " that in ease of the re-
moval of the property to eseaiie eonllagration,
the company will iMntrilmte ratiibly with tho
insured and other eonipiiiiv;s interested, to tho
loss and expense ■att.unlin^- such act of s.ilvage,"
has not the elfeet of changing in this respect the
law of partial insur.r.ice. T,'niiiiii"iii v. Muiilrcal
Ins. Co., G (}. B. :U!».
Plaintiff insured with defendants .'ii!3,400, of
which §1,000 was on his t iiinery and .S.">i);) on
the machinery in it, on an applic itiou valuing
the tannery and Jixtures at s^l.OOO, which wan
said to be two-thirds of the actual value, but
agreeing that in case of loss defendants .sliouhl
only be liable as if they had insured two-thirds
of the .actual cash value, anything in the jxdicy
or application notwithstanding. The aj)pliea-
tiini was referred to in the poliey as forming
part of it, and stated the promise to be to i)ay
all losses or damages not exeeeding the said sum
of .?.3,400, the said losses or damage to be esti-
mated according to the true and actual value of
the property at tho time the same shouhi liaji-
pen. Tjie building and maehinery- having been
destroyed by tire, the jury found 1 he total c.ish.
1803
Vlllllc
TNSirilANCK.
1;
if till' fiiiiiii r til lie ^liO.'iO, ami nf tln' lnt- iiiiii't|<;i;,'(pi' with tlu^ iiiiKPiiiits of tin' iiri'iiiii,
ter .'"'Tr.O : M. M, tli:it tlu: ipliiintill muld iv.ovir A'//*., /v. /,'„/„ ,7«o/,, (I I,., I. \ i:\ rhy.
only two-tliii'ilH nf tlusi^ miiiiih. W'illiininini v. ,, ,■ ■ n. ,
imiiy wi'i(^ til Imvi' the ii|itinii di muki,,,,
I'liiiiitilV iiiHuruil with itvruuiliiiitH i!ii'J,0O<) mi n the Nimh nr ilmiiii^'ii cithir in iiiuih'v, |„
Imililiii;;, mill •'^'J.OOO mi tlii' fiii'iiiturt^ iiiiil w ith tn tin' xuiii iiiimii'il, ' ■ ' - '
uiiiitliri' riiiiipaiiy S'.'.IHKI mi thi' liiiililiiix aiiil
ruiliitllli' tiiK*'th>''' ; lUii' •' l'""* iiiilUi't'il uf si, ((.'()
(Ill till' liiiililiiiK. iiiiil .'irsT'S mi the fiiniituri'. I *>■
I'liiiihiiil.s iiiiluy iiiii\iiU'il tliiit ill iMsi' iif liiMM,
till' ;i>Miiiiil ^limilil iciiivi'i' frmii tliiiii mily hik li
|imtinii tlii'i'i lit MM till' uiiimiiit nMHurcil liy tlitiii
mIiiiiiM I'lar to the wlinli' aiimuiit it.-<Hiiivil ; r.rnl,
illiikr thin, thi'y cmitLinkil that thi' otlur iiisur-
unci' iiiiitt lu' ticati'il a« mic I'm' S'J,(I(K) mi tlio tiic nlil luiililiii
liiiiMiuj:, .'iinl ."^'J.dtKt mi ilic liiiiiitiiri', ho tliiit ii hill tn icitiiiili the i.'mii|i:iiiy ii'mi, i,,.
tluy wiiiihl 111' lialili' mily fur mio half nf the tu mi'it tlu' Imihliug in th.' liitntivi
IiiMH mi I'ai'li ; luit, Iliiil, that as tlio wlmh' pointril mil, ami l>i'ayin^ tiiat tin v liii'lit
aiiimint insuivil was S('i,(KK(, of which ili'fi'inlaiits ik'cii'iil sii(,'i.'irK'al!y to lurfmni tin' I'Minlit',,,,,
had taken St, 000, they were lialile for two- ereetilij^ :i lioiise ex:utly, nr at least MiKst
thililH of the liiMH. '/'/><■ Trnxtir.t lit' llir I'irHl tially, eol'li'SJimiililli; witll tli.it ilestliiVc
Ciiiliiriini Ciiiiijn ijiilhiii o/' '/'iirniiln v. Il'i .■</';•/(
AxM.Ci,., •Jll (,».'!•..' 17.").
A Jioliey iiiMUrin;,' several ilid'ereiit .suhjeetH of
iiiHiiiain'e at Mi'ii;ii',ite ainmints, ami eontainiiiy u
liiovisiiin that " the i'mii|iaiiy shall he liaMe to
])ay to the insnieil two lliinls of all HUrli loss or
<laiii:ii,'e hy lire ns shall haiipeii to the iiroperty,
aiiiouiitili|{ til no inure in the whole than the
ii^'jiregate of tlie ainmints insureil, ami to no
more on any of the ilitlerent jiroiierties than
twotliinls of the aetiial easli value of each at
the time of the loss, ami not oxeeeiliii'' mi eaeli
"■ I'V lehinl.hiiji, iirl.v
liairin^; the Haiiie, aei'orilin;,' tn lin inintn',
'I'lie house having liein ilntrnyiil liv lif.
emn|iMliy, insle;lil of luiyili;.', eleit,..! til It' I ill
«llii'll they eiilllimneeil ilniii;; Millimit li|\
ol)t:iiiieil fi'iiiii till' insiireil any plan nf tin. 1;,
ilestroyeil, ami aj^aiiist his expr,.,^ iilijcctiiin
their proiie.linn ; they also inti iituniallv
liarteil finiii « hat w.iH known to lir a tiatiir.
''''"•"■^•>H"ii> the iiiMin-il I;
ol
man
the sum it is insureil for," is to lie treated as a ^''>' lu'operty ;
-•■ ■-■••« .' ' 1 na.>i, jiUHKt
ti.illy, eorri'spmiilini; with tli.it ilestinviil. 1
\'iee-( 'haliei'llur ileereeil the leliif ns pnivu,] j
I ou ajipi'al the emirt reverseil tliis ilecrw a
iliMinisseil the hill; lnit, limhi' tlie ciiviumtMii'
withmil eosts, lluinc /ii.-'lrirl Mntihil Imj;,
'riiniHIi'"'!!, I I''. '*ii .\. -I".
due of sever.'il teii.'ints in rnniiiiiin^ i„.j||„
sole possi'ssioii of the pleliii.-is aii'l I'laiiu'ii.'
he solely elititleil, insiif.il the l>iii|iliii"A mi't
property ; the liiiililiii;!s haviiii.' lu'cii i||.,<tr.i\i
liy lire the iiisurMiiie mmieNs were paiil \n\
pirtj- insuring, .■iinl new liuililiii;:s win. i.r,.,^
ly a person to whom he hail luntriuti'il t" s
III
the
separate insiiranee upon each .sulijeet, jinil the
cmiip.uiy is lialile only for two-thinls of the loss
«iii e.'.eh, iiotwitlistamlinn that on smiie of tlu;
Hulijeels the loss i.'i less than the aniouiit for
wliieh those Kiiliji'i't.s are insureil, ami the w hole
loss less than the aggregate animiiit insureil.
K'lini V. I'riiir l^ihnii-il (iiiiiilii Miiliiitl liix. Cii.,
11) (■'. I'. i;u.
\\'lierea separate insurance is ell'eeteil on weji-
urate properties, the emnpany only to pay as if
they hail insnr'jil two tliinls of the aetital cash [ that the loss, if any, sMmili
value, the insureil ean reeover two tliinls only
of thejiartieiilar prniierty injured. Mi'Viillnrli v.
lliin /ri.<lriri M llllilll Fi'n- /n.i. Co., 32 Q. H. (ilO.
See Mrrnnhi v. (Jimk, r Cili/ /,it. Cii., ISQ. H.
i:!0, p. iss;!.
L'Sue, also, 1, 4, p. 1709.]
heaiuij.', v;irviii;'t|
ileeree pi'omiuneeil, Sprag,!;e, ('., ihihitaiiti, (1
Cliy. I.'i.i, ) that the jiarty ni^uriiij; wuM iiititj
to a)iiini|iiiate the iiisurani'.' iiiniiev t'l liis .i
helielit. Mihiliixli v. Oiilni-'n limit, •jDChv.
vi-ilinl ikiTcc, tjj
lliiwaiK'o ill n
Held, also, varyiu
[ he was not entitled to any
[ of the new Imildings. ///.
I The owner I if l;iml nim'ti.'a'^eil tlu' simn', ai
; ill pnrsuanee of a eovenant iu tliu ilueil, iiisiii
the hiiililings on the land. Tlie imljcy jirovii
iie [laiil til tilt llll
. gagees. The Imililiiej;-! Were slmi'tly aftirw
! ile..-triiyeil liy lire, and th.' iiisiimiu't' ii,
I paid to the mortgagees, w ho assigiioil tlii' iiii
! g:ige to trustei'M of the insinaiiee t'lmiiuiiv,
tliay thel'euiion pnieeeded to fureclnst' : Hi
on app.al, liy a puisne ineiiinlii'aiinr, in.m
report of the master, that the iiliiiitiir^wtiv
himml to give credit for the aiiiuiiiit [lai'lM
mortgagees. WiMiiMinl' v. lliiiil'ii,iK'\\\
10. hi-'in
1). lliiilit to, itiiil Ai>i>liaithm of, fiiiiinuiri
Miiiiiil-t.
B. having insured a mill erected on lands con-
veyed to him hy A. iu trust to sell, and after
paying his own dehts to pay any surplus to
A., and having received the insurance money:
Quiere, whether lie w.is accountable to A. there | Inn. Cu., \'l Chy. l.'ili, p.
for. Semlile, not. Jlrl'/iirnoii v. Pnniilfuot, '2
c. r. .-.7.
Held, that in the absence of an agreement
between the parties, the receipt of insurance
moneys by the inortgagee during the currency
of the six months allowed for redeinptHin, does
not necessitate the taking of a subseiiuent ac-
count ; that the mortgagee is not in all eases
liouml to apply such moneys in reduction of the
mortgage debt; and, conversely, that the mort-
gagee is not entitleil in all cases tu charge the
-nip
liij iirfiir Miirljiijr'
Siilii-iiijiilhiii.
See /ill Mir V. Profiiiriii! /,'.«. ('<
o'u,\>. IS(il»: niirluiiv.diij; />;.■<! rlrl MiitwH
■" "" "SID; /'/•."•■/..■;
Co. V. UiiKiii; •2\ t'hy. '_>!lli, \>. ISTO; HV.i
V. J/diiki/, 2-2 Chy. :i82, p. ISIU.
II. Miitiiiil Iiixiirniii'i' Ci/m/"'(i'«.
[T/if caiics ttnili'Vthi'i suh-linul mr such a^t
nnlf/l/ to MlltlKtl ('oilipilllli:-<. nllii'l' lini'iiillii
yrijiiril to thi'iio anniiiiiih ■■<, Iml iHii'-li mniilnit
a iifncnil n/iiiliriitiijii, iri/l hi' i'iiHiiiI iiiul'i'lli'i
mtl>-/it'(iil.i.]
[Sa' ■>'(! \'!rf. c. >,.',, O : .W I'''''- '-■ '^''i
11 ftlllOUtlt^ iif tllc llKllliuil,
. (;l,..I.H;i fliy.
, II clwtjUiiiu \\"\\M\ till' imii.
I. till' i>liti">> "' iiiiikiiiK ^.f.,\
r,i I'itlH'l' ill lllnllry, llivi.r.hl|j|
ri, (11- \>\ n-liinl'liii«, iirliy iv.
lU'iMii'iVni;; to iii-i'mii<t:inr«,|
*, liciii ill .-tti'ny.'l Ia liri', tlitl
,,f ^iiiviiiU, cli'i't.'a t.i IV l.uilll
l,„,,„.ci"l lining villl'iUt lllMllJ
, iiisuvnl any \>\-M uf tlirlmiiJ
l-lUllht lli^ lAlilTM ..l.jirtlHii tol
t'w.iH 'kiii'NVii til lu' .1 tiMtiir ■#
. 'nii'ri-'iii'"" tlw iimuriil 1,1 J
til,. cmniKUiy li'mii in vliiJ
ililiiig ill till' lU'l'i'' tivi' iii;\h;!i!|j
A i.r.iyi'in ^''•^' "'"■>■ ""'"' '''
•lUv 111 jiiTl'unii tla: i'Miiiliti"iili<
i,. V\;',i-tlv. "I' '^^ '•■■'»' ""''"'■'
l.lillU' wit'll tli:it ilrstV.iVi'.l \
|. (U'lli'i'il tlir ivlivl' llsliVilSi'.,;iii^
.•iiiirt ivviTSfil tins 'IwKT, m
ill- liiit, imili'itluiii-i.iiiintiii'
//„„„ />;../n-W M„tH.,lhr..i\,<
vil tfiiivuts in .•"iiimim, l«m:
'„f the i«iviiii'^>'^ ,ui.l i;l;iim'i.;
1,„1 iusuv.'il tlu' l.mianii'-'.utM
,,„il,li„-S iKIvill- lilTl, <\^*UM
,„,,„„•.• IMlllK'VH wiv i^ltuti
■ .uiil lu-.v liiiil'liii:.:'' w^'iv iiv«
Vv'vbimi ho liii'l '•"I'tnHf'l '"
. lU'ia, nil ivhiiiniij;. wnywi
uncoil, ^^ll.l^,,' . ' , ,,
•It tlio v.irtvin^iivi'i;;«''%"'"'H
;thoi.is.uMu.-.:.i.;'i7t;;!!;;^
LitliU to any alloNvuuco ... r.-i*
luililiii!4'*- /''• J
:voov.iiai.ti..the.Ucil,..H
, „ tlu. lai.a. TUo 11. ..y 1.1-v.J
,\u.v.Hl.o..lill-l'^"'\t"'.''^""«
V livo, anil tl..' ii.s..vai.;'^.ii."
■,„''aiioo.,^vh^ assigned tl.o.»j
•„ vit.r. that tU. vl:u..t.ll'«;i;
II', , ■,•/»(' '' ^- "' " •' ■
Siilii-<ii,l">i""-
I ^'-'^-''^'-^^''Sid
b3;;::w;/'w^ ^M
<(]S
INSUILXNCK.
I.H(1(5
(it) I'l' iltilllll Xiif'* mill .\'<■^'■■^<■1lllnlt^.
Ik'iliimtiiiil oil I* ||^llllliH^lll•y imtc allixoil to
i.vc lnTii iiii'hi liy out' <'., piyililo til till' iinii'i'
(tln'lliii'' l>i»tliot Miifiiai liisiii'iiiii' roiiiiiiiiy,
livtlii'iii I'li'lorsi'il to ili'fi'iiil. lit, anil liy ilol'i'ii-
iiittolil'iiii'i''^' I'loa, that till' Maiil roiiiiiaiiy
i ^. till' lilaiiitHrH, aiiil III it till' (i! liiitill's arc tho
' II Haiil iiiiti' if* male iiayalilc, ami
til ih't'i'iiilaiit, aiiil art' lialih' to
I |,r»in» to « lioiii Hai
I |ii,i I'liiliii'ii'
>|i iiiiliii'Mi'i's. 'I'll!' i'i'|ilii':.tioii f<lifWoil
l>v ('. u.'.ili'i' till' Ntatiiti'
lini w •"'
L,,tthi'iiiiti' "'1" «ivoii
li,iiliisiii»iii'i">-"'''''*'''" Inviiiisi'M with till' [ilaiii-
l,ifj t" Bfciiio the iliu' iiiyiiU'iits nt' the iiro-
|_l,lllljor llssi'M-illKlltM ill I'l'Klii'cl uf ills liolicy ;
I y,| III! ili'iimrror, that tlio ii'|iliratiiiii wa.s hail,
lujlitwiiik' I'll' ii"^'' ""'■ '" '"' ^^'I'l' ''lo iloi'lar.i-
ItMiiwiiiilil iiiil»"'t. '«'"/■' hl-ilr'irt Miihiitl /'in
\l„.l\i. V. Snii'-il.t, lU (}. II. .-ilill.
\m.itiiftliii>*'»i'iuicuc(tiniiaiiy HiU'il u)iiiii a iiotu
Ijlj.qiijrit til liavu hoi'ii iiiaiio hyC, jMyahlo to
||hniillll''lliy "'' '"''I'l'' ollilor.si'il hy thrill to ilc-
Ikihi.t. iiii'l ''>' 'litoiiilaiit to tlu'iii a|,Miii. It
Iroiiiieiif tlii'ir "I'lliiiaiy |iri'iiiiiiiii imtrs, givoii
L,„lit;iin a iiolioy of iiiHiu'.iiu'o for <'., oiiiliirnt'il
llv the si'i-'i'i'tary of tho foniiiaiiy, without ro-
(I'llM', i..i<l HlH'iially hy ih'fcliilaiit as follows :
"1 lifivliv ti.alvi' ii.ysulf n's|iiiiisililc for the
Ifitliiii,-''' M- ''^' 't ^*'"'' provuil that ilofcii-
\ittU «lii'i' "l"''*^'" *'• ''.V tlio secretary, hail :«aiil
ikatV. iii.glit to ji.iy the note, hut that if he
tjjlnot, 111' *iil'l""'oil ho must: llelil, that the
Ljiititi'jcni.lil not rciiovcr, i.|ioii the ilt'claratioii,
ll.r -ikIi iiiiti'.s arc not iicnotialilc, ami the com-
juiiv ciiiiiiiit transfer them liy '."'i' semoiit. If
BiuMvro iitlicrwisc Senihle, that the seoretai'v
i'litliiivi.' eiiilo.'''eil the iiiito for the coliiliaiiy ;
jQt that tl.f ilcclarat of ilcfeinlaiit coulil not
■(tKati'il iis ilisiieiisiiig with notice of iiiiii-[iay-
tin hi.... X. ('. ///., .'l.'l.").
HiM. that a note, inaile hy the ins.ireil in the
L!'.all'.'ain-li 111 a nniti.al insurance comjiaiiy,
Ltbc 5.1111 cl '^•f- I'iU't ol the sum of S'M, for
(bith the iiisiireil hail alreailv .yiveii his deposit
liiriiuiuiii note, such S.'{ rein'esentiii;,' the por-
kiif tlic ik'iiiisit note payahlo to the treasurer
jiiiciikiitil expenses iiiiilor C .S. V. ('. c. 't'2,
ii;, w.!.* not a iiiite given for a cash premium
I iiiiiirauce within tlio meaning of •_'!! \'ict. c.
U, 5, so as utterly to avoiil the policy if the
Ittihiiulil not he paiil within 'M) ilays after the
me wiii iiuiilu payahlo. Ell'nw Jixtrrr ami
Liiih Miilml Ill■^.' t.'o., 21 C. 1'. Si.
|Tiiaili'.'laratiiiii on a mutual iiisuranoo policy,
Itrriiigti.e layiiicnt of tho necessary promium
ItiKiiraiiei'. ainl setting out a certain conilitioii
kiorseil 111. the policy issuoil to plaintill', among
Itrthings, that any frauil or attempt at frauil
Jialse swearing on the part of the assureil,
Jil vitiate the policy, and stating a conipli-
with this ciiiiilition, dofoinlants pleaded,
ating this couilition, that the pl.aintitl' stated
Btr oath that lie had paid to dofoiidauts all
mm, lilies, and assesmeiits which wore
|(anil (iwiiig at the time of the lire, whcroas
intilf hail not at that time paid all premiuius,
I, to defemlauta, wherehy plaiutitl'was guilty
'jlse sweariiij; within tho inuauing of said
llitiiiiL There was a furthor plea sotting
I the provisions of section 5 of '20 Vict. c.
1 relating to mutual insurauoo companies,
|avi'miig that on oliecting said insurance
ptiff gave his preinuim or dei'osit note to
deft'iidaiits for hii* iti'turaiice, and that defendantM
afterwards lawfully m ule and levied an asscHH-
meiit on said pri'iniiiiii or deposit no„e so given
hy pliintilt' to the aiiioiiiit ol ."^t, and the siiiio
remaiiieil in arrcar and iiiipiid for inmc than
thirty days, wheroliy hy fm cc of said st.itutesaid
liolicy lieciiiie void : Held, on ilcliiurri'i', that
liotli pli'is were had. ( 'rmrlifi v. A'jri •nlhinit
Mii'diil Ai-i. .|.<.io. .«/'('.()/,«/'(, "J I ('. I'. .'iliT.
The noiipayinent of ai'ash premiuin noli' given
hy the original as-mred in a miitu d assiir.iiici!
companv, the company having asscnti'd in writ-
ing to tlic assignment, eiiiiiot In: set up against
the assignee and alienee of the policy, the note
heiiig current at lli • tiiiie of assiLfiiiiient, and the
alienee or assignoi' not lieiiig aware of its exi»
teiice or non-iiaynient. Sf(iriii'< v. <'iiiiii lii Fur-
iiiir.i Miifidil hiH. Cii., '2'2 ('. I*. ".").
A judgmoiit WIS roctiverod agiinst a mutual
insiirani'c enmpany, for the aiiioiiiit of ;i loss hy
tii'i'. The exeeution was rotiuned nul/i liiiiti,
and the jilaiiititl' applied for ii m.'Mnhimus to
compel the defendants to pay ovei I 'iiomy,
III support of the apiilic ifioii it was si > 1 that
an assessment had lieeii levied liy the di :endants
iiii'ler their act of iiicnrp iration, for tlu' |uirpiiso
of jiaying this loss, and that t!i had i' c 'ivod
the inoney so levied. The wri* s refused, lie
' cause it was not clear on the allnlavits t'l it Lao
i'or|)or:ition had no property out of wh; h the
deht could 111' levied, the statement lu iiig i.icruly
that the oxec.uion had hccii rcturiieii mrit Ikuui;
and hcca.iso the defendants alleged tliat tiloy
were, and always li.id heeii, rcaily to pii .>ver
the money to the persons entitled, and tlie court
would not decide in a suiniiiary m iiiiier on con-
llicting claims. U.it ipLcrc, \\ In ilicr the fact of
; the corpiiratiiin having iiothiiig u liicli could be
talvcn in oxecntion, would he ;. sullicient ground
for intcriiosing liy maudaiinis. Ilmihrs w Mnfiiiii
/ii.<. Cu.dl'/lii j/iMrirt i,f ynrculli:, 1 1 (,». I'.. "Jil.
[ \ mandamus will ho granted only where tho
applicint has no other specilic Icgil remedy, not
where such remedy exists, hut is nnproductive.
The writ was refused, therefore, against a niu-
tu;il insurance company to ci'iiipcl them to ]iiy a
claim, tho ground of application being that they
had no real or porsmial property which could bo
j taken in oxooution. It appeared also that the
I present directors had no power to compel pay-
! mont by those who had heeii mut.ial insurers
' with the plaintitr, hut no longer belonged to the
comiiany, their deposit notes having heeii can-
celled. I'laintilf's attorney wrote on the "iOtli
(if J)ocoinbor, to the treasurer of the company,
doinanding a portion of the claim, and on tho
■2lst recei\oil an answer, saying that the dofond-
I ants' solicitor was absent, and that th ; treasurer
had M'ritten to him, and would write again to the
attorney on receiving a reply. No further an-
swer was sent to the attorney ; and in the troas-
urer's atlidavit. filed in .June, in opimsing this
application, no mention vasmadeof this suni:^
Held a sullicient refusal. S. C, 13 tj. B. l.").'{.
Per Robinson, C. J.— Sec. 18 of (> Will. IV.
c. IS, .applies only to .absolute alienations, and
the id.aintitis in this case as mortgagee^, were
not entitled to sue in their own names. Per
MeLeaii ajid Burns, J J., they were so entitled.
Ill
INSURANCE.
DUtrkt Mutual Inn, Co. , > premiuni as well as nuttnal. Finrv,
iJUtrirf MutiKil Fin- /«.•( Co. '2{} ('. I'. 3<
liurtnn el til.
14 ii. B. 34'->.
A treiisuriM- of a, imitual insurance company
Held, that tliu Ik'aver aiiil
such insurance ; and a purcliasir, t ikin
I veyance t'nmi tlie assurcil, will taki- su
I the charge of the conqiany iiltlimii'li
'notice, and that although isuch chaise d
apjicar ()n the registry alfoctiii^' tin" jn-
I the registry laws not providin;^ for tlic r
tiou of such charge. Mniiliiniiu rii \. i:,
! trkf Mutual Ihk. Cu., 10 (Jhy. .")UL
i The lia!)ility of parties iiismx"! in
insurance conipaines is a ciiargc n\\ tlit ii
insured : an<l on an npjilication umkT tbt
ing Titles Act, an allidavit is uurcssarv
that there is no sucii policv in (.xistei
that tlie policies named arc tiic dnh' mie;
istence.
Mowat.
J'Jj- jiitrtr Hill, -1 t'hv. (.'Iwiiib.
may take a chattel mortgage to himsell for a debt I Yna In.surauce ( 'onipany must lie n,iis,
<lue to the company ; hut it is more proper to j iacoiporated under the '.VIX', \'i,.t ,.
make it to tlie coiiipmy, and they liave power to | that the Wn \-ict. c. 44, (>., which 'o,,',]
take it. Bnxh,' v. l{utt« i, H! Q. B. 207. | to companies incorporated under the ('.
('. S. IT. C. c. ')'2, 8. 7.1, empowers any justice ^- ^7 "i' '"'>' special act of the foinaT 1
of the peace to examine on oath any pers(mwho "' •''vnada or of Ontario, did not atfuc:
comes hcforc him to give evidence touching loss '""I '^'"^t they were therefore not auth.
In- lire, ill which a mntiial insurance company is ""'j^t' ''" assessment for prospective l(,ssi
interested, and to ailmiiiister to him the reiiuisite I ^; Bmrcr ami Turunlti Mutual F,,-, /„.,,
<iath. I'poii an iiiilictinent for perjury assigned I ^' ^- '■*'•
upon an atiidavit made in compliance with one 1 By sec. ()7 of C. S. U. ('. c. ,VJ, all tlit-
of the conditions of a policy :--Held, that the estiite of any party eli'ecting an iusuraiii:
policy must he produced, although the defen- ! mutual insurance company, in the pi,,]
daiit's atiidavit referred to the polic)' in such a i sured, at the time of elli'cting the sanu'
■way that its existence might he fairly inferred. ; jeetcd to all claims against: tiiu as<nr
JivijiiHi V. O'aijaii, 17 (.'. V. ;">.S0.
One of the conditions of a mutual policy pro-
vided that, incase of sale of real estate insured
and a mortgage given to the insured, the mort-
gagee might c(ntinuc his interest by giving no-
tice, &c., and that "whenever any one hereafter
insured, • liall alienate conditionally by mortgage,
liis iiolicy shall be void," unless written notice
thereof l«; given to the board of <lirectors, sta-
ting the amount and to whom mortgaged, who
should have jiower toassentor cancel the policy :
- Held, looking at the constitution and working
of mutual insurance ctunpanies, that the aliena-
tion referred to, was of the land on which the
I)remises insured were situate. Jfusx v. Mutual
Fir< /us. Co. o/Clhilau, 2'.)^. B. 7.S.
I'cr (Iwyiine, J. — The plaintiff in this case
l)eiiig insured upon the cash premium system,
though defeiidnnis were a mutual insurance com- j
jiaiiy, the policy was not subject to the provisiims
of tile mutual insurance acts. Wliite v. Aijrirul- , in the plaintilf's statcnieiit of lus.', luivin
tunil Mutual J.^•.^■. (.'(*., •22 (J. 1'. 98. j fairly left to the jury, who foiuid lor tlit
,,, i. A r i. 1 !•• T rt ! ti^i tli*^ court refused to intertcic, tlioii"
loidiito ]\[utual [• ire Insurance Company \..,,„i,i 1,,,,., i„„,„ i,..ff„,. „„^: ,; 1 ., =
. , .... • . . 1 1 wouKl iia\ oceu licttcr satistiuil wit 1 a \
licir liusiness into two branches, +1,, „fi,,„. „.„,. r , , ;.• , ,, , . ,,
, . 1, 1 i.1 i-i • 1 • 1 1 ii tU'j otlier way. J^auiiil.ni \. (Iitlann .Viir
one Irciiiu calliil the niercaiitile, in which both , !,■•„„ /,, . /. i.,-, , i. — j,
cash and mutual policies were erlected. J he I
defendant insured in the mercantile branch on '■ t'ovenant !»• lessee to insure pieiiiises
the mutual jirinciplc. After the amalgamation name of the lessor, the iiisuraneo iiuiiiev
of that company with the Reaver Mutual Fire expended in the erection of new IniiMii
Insurance Association, the directors of the new Held, a covenant rnnning with the Ian
colupany traii.sl'cried all cash system policies in \ that an action woiihl lie on it agaiii.<t tlic ,1;
their farnier.s' branch to the mercantile branch, i of the lessee : — Held, al.so, that the m
crediting the latter branch at the same time with ] of damages was the value of tlie iiiciiiisi
the estimated \alueof all unexpired cash policies : ! to the j)laintitt' by defendant's neglect t»i
— Hchl, that this was unauthorized : that it was ' such value not exceeding the sum iii
not a "re-insurance " with " any mutual or other <lefendant was to have insured liy liiii
insurance company," within the meaning of the nant ; and that it could make iw ditt
acts; and that the defendant could not be as- that on failure of the lessee to insure, tlit-
«essed for losse.'i on the policies so trausferi'ed.
JifUfif iiiitl Toftititii Mutual Fire Jn,i. Co. v.
Triii<l>U, 23 C. r. 2:)2.
An insurer with a mutual insurance company
is not liable for assessment made before his in-
surance was ett'ccted, or jircmium note given.
At the trial the learned judge so ruled, cind ;
refused to allow defendants to plead a subse-
ijuent assessment made after the policy. The
court would not grant a new trial on the ground
of such refusal, no affidavit of such assessment
Ijeing Hied. Ofet'it v. littt it-r ami Toronto Mutual
Firtiitis. Co., .34 Q. B. 78.
The .3(i Vict. c. 44, ss. .37, .38, 0., applies to
all policies issued by mutual companys, cash
All the
12. Misf
evidt nee
■llaiifoti.-
either
r'«.v.-.v.
iile a.s tl
The
lad divided t!
.1/.^
was allowed by the lease to iki .■<i
the premium as rent. Duii'iIiimv.
Q. B. 113.
Defendant, as surety, cnti'ivd iiitna h
his pnncipal would insure, and kccji
certain buililings on laud nioitgai;cil iiy
the plaintiff. Afterwanis the iiiisitinu
buildings was altered, the out l)iiililiiigs
brought nearer to the house, aiicltlmrijl
inereasetl :- • Held, that dcfeiiilaiit was
discharged. O'rifi'c v. tS'uitk, 2.'! IJ. li. :
Declaration upon a policy fur •'I'lOlW, i
brick house. Second plea, on eiiuitaUegroi
that by the policy, whenever t!ie iletVn
should paj' any loss to the insurwl, ht >.p
11 as mutual. Fn'ir \: .Vi.i./.ir«|
rovoiitii Mutaal
INSURANCE.
1S70'
Fhr
lie Beaver an>l
(
,,eci:vl act "t the lovinw 1 r.,vm«
,,f Outarii',
„uve therefore
sn.eut for vr'>»V^';-V,':''' '"**'"'
iliil not alVfot tlMuJ
not ;uithiiri/,iiU
'In
Tui-oHli, Mti'i"'
,[C. S. U. l-'.e.
i.arty elleetiu^
' company, lu tlif pi
,V2, :i\Uhi; vidua
\ii iii^iif;iiici' witlij
icrty i
tUu sunn.', is -uM
iUieu
time of etlectiug
claim. ayain«t the .^-u....im,ld
^the assured, ^villt.k..u„].at
;;,• the cou>l.any alt mnuU wul
:hat although such cluir,.c a.„.
,' vcLii^try allectmg tli. i.V"i.r;^
laws m,tn.,viaiu.^ tor the. n..4
ii charge. Mn,,Ur>.nr,-,i y. i... l4
Co., lOOhy. oUl.
j'\ in nmtiil
111 tlif \'\''\<\
,aouanavriieation.n,.h:vtli.H
xtlhlavit is uecussiiVY starf
h iMilicv ill existi'UK,
I Jiix
.ility
,f parties iusuvl"'
,„ii>auies IS a .■harge
\ct, an
is no such 1
the (
mlvi'iwsinil
(.'kaiili. :*|
!•:
MUnlluiKoii'- '
itlier
side
;is t" ;r)|
Kiviiig
I'diuid lor tilt I'lJ
iutevteiv, t'lwu.i.lB
evideiiee on ci
intilVs statemeutol
to the jury, who
,;-te:::!'b:ie;.ais.ie.uvitha
,c'o.; i-r.Q. !•• ^'"^■
f !*• lessee to insure prciiiv^is m
,nt l)fc 'c^'f';, iusuraiK'C mmity W
'>■ '^T cro tion of new hml\m\
'" * ?,t rum i •' ^"th tho 1...'
"^■^•:^h"Ttag:U,.tt!,-..
Held, also, that the «.
as the value of
• tifV liv defendant
'"' f Ixccedinu- the .mu •.n *:
Ition'
Issee
tlic iiivimsfi
suugWdtoiiii
the sniu ii
Bji.ii over all hid ri^lit to recover satisfaction their policies, not telling tln^m that he was act-
" ' " ' " inij for anotlier company, and tliat tliesc persiiiw
helieved he was acting for ilcfemlants. Defcii-
'.mivauy must he euiisiiUii.,! aj^B ^ ,
have
in
;\ko 111'
theivliir f'"'" '*"y otlicr person, town, or other
viriiiiwtii'a, or to jirosccute tlierefor at the
[br''C'>i"l for the account of defemlaiits, if re-
steil : that the jilaintiU' was the nnn'tgagoe of
,'lij 3,1,1 jiiciniscs insured, and tliat altliongh the
jefeiiiluits have always: been ready, anil liave
offiiwl t" V'V ^'"^' I'laintilF the insurance and
jpiiiiiim, upon tlie jdaintirt' assigning tlie said
lrit;.'iL;i'. ami althongli tlie defendants have ten-
idenlmi iissignmcnt, tlie plaintift' i-efused to aa-
j,,,i. |'.iiuit:il)h! replication : that the mortgage
ifliiniiicil a provision rc(|uiring the inortgagor
itoiii-nro the iircmiscs, and that the plaintitt' uu-
ler the instructions of the inortgagor, and at liis
sisaii'lei. 'rges, and as his agent, insured the
illiuiliUiigs. liejoindcr, on cipiitable grounds :
ijt liv line of the conditions of the policy, if
ii.'rsnn insuring ni.'idc any misrepresentation
iiK'oiliiieut, such insurance slioiihl be void,
that at tlie time of insurance the plaintiff
imr.il.'il friiin the defendant i that he insured
iltrtli'.' iiistnietions and for the benetit of the
irt'iL'"!'. whcrebv, itc. ; Meld on ilemurrer,
leikiil : fur if it was intended to rely upon the
ishtiiiii, the niortg.ige security would give the
iiititf no right to recover froiii the niortgagoi
fi.'. fc.« iiKiii-r'l ifjii'iiiil, but only to recover
Jdit: luid if it was intended to set up, apart
mthcconilition, tliat because the plaintift' was
irt^;i"C'e tlio defendants, on paying his mort-
iit, were entitled to the assignment, then
in"h was not shewn to entitle defendants in
itvtiia ]ii'riietual and unconditional injune-
111. ' IVr Wilson, J., the plea w.is also bid:
Ptt(.;U!>e the alleged .agreeinent being that
idii'virtlieilet'endants sIkiuIiI [lay any loss the
iititi'woulilassign the mortgage, or prosecute
^itisf:l'.tillU if rei|ue<ted ]>y defendants, the
lea hilts were bound lirst to ])ay ; and "2. He-
■;it was nut shewn that the insur.mce money
islaireiir l:u-,'er than tlio amount of the
■t'.ML'C. " Scniiile, per Wilson, .1., th:it defeild-
iiail iirit tlie rigiit under such agreement to
twhi'dier the iihiintill' shoiild assign or pro-
ite:— H'jlil, also, that the re|ilicatioii shewed
laii.sworto the plea. Held, also, rejoinder
fur 4up:vrture, and because the jilaiiitift'
i^stateil that he was mortgagee, was not
1, uiiiislvcil, to disclose that he w:is insuring
It iiiiirt 'agiir, and the eoncealinent was of
lautoiiiil mutter. J'fc-^or v. Pruciiiciitl /11.1.
Jig. B. 357.
was to
^'^ '^'"'ilL'l^ieTo insure, tklJ
uim as leni.
lunll
ll^l|
hll
luildings <m - .
IvitV Afterwanis tin- I'"-.
^vas altered, ^theou^^^^^^^^^^^^
iti"ii 1
niililiii;;* l
Inearer to the
house,
r-^ld, that defeiii u.
j. (VnV'V V. .V'""'. -' ^^
,l;uit w;is ^
daiits' officers were r^pcateilly informed of all
this, and that the plaintill' was representing
himself as their agent. L'nder these circum-
stances, they jmblished in a ncwspajier an ad-
vertisement headed "Caution, " and stating tluit
notwithstanding plaintill's false st:itemeiits to
the cmitrary, he w.is no longer their agent. The
plaintift" sueil for this alleged libel. There was
no proof of malice in fact. It was ol)ieeteil that
the communication was privileged, but the ob-
jection was overruled, and this iiuestion was left
to be de:ilt with by the court upon the evidence,
uiioii the leave which was reserved to move for
a nonsuit -neither side renniring any ipicstioii
to be left to the jury: -Held, that the occasion
was privileged, and that neither the cxju'essimi,
" false statements," nor the mode of luihlicatioii
aft'orded sufticicnt evideuce of milice. .\ ver-
dict for the plaintitl' was therefore set aside and
a nonsuit entered. Semble, that tiie learned
judge at the trial might properly hive ruled that
there was a privilege and no evidence of nniliee
to go to the juiy. IloUhhni v. < hif-iri'i luirnii i:h'
Mutual I ii-t. (''j.,;i.S (,>. li. 7ii.
On a sale of real estate, the Vvnnh.rtook b.ick
a mortgage for part of the purch.ise money,
which was made aci.'ording to the short form
under thest:itnte, and contiined the usual cove-
nant on the part of the mortgigor to insure, but
this, in the hurry of prep:iring the ileeds, the
mortgagor, who was a snlicitor, omitted to till
up. It was proved, however, by both p ii'ties to
the transaction that the iiiiu-igagor v.as to insure
and was also to give a i.'oven:int for so doing.
^f
a'isence
litiouuponal*;rj;a
lure, whether when a mortg.ageo insures
Vrty mnrtgiiged to him, the insnr:ince com-
iiii. in ease of loss, compel him to assign
fctiii the iniirtgage. Ri-csir v. Proi'inchd
jc.., 3:) Q. 1'.. ;io7.
\it\ Viet c. "211, s. 8, ])., applies to all
I lit iiorjury, not merely to "perjuries in
piKo lasus," which is the heading under
4 til 12 are placed in the act. Reii'ma
, ;!! l,t. B. :)S2.
pi'liiiitifi' had been the agent of defendants,
biiraiia' edininiiy, and h;id (d)tained about
(luliaes fur them
\\ the service of another company, anil
pill aetively for that company among ile-
p ciistumer.s, asking those whose policies
k'Kiiit to exjiire whether they wished to bo
or to insure again. . ifendants gave
i! that he asked several of tlieui to rune to
The veiulor afteru.irds, during th
the inortgagor, insured the houses oil the pro-
pert}' in his own name, for the sum ;igreed upon,
and charged the premium to the mortgagor, ami
the buildings being afterwards luirut down,
(dit:iined, by process [of law, p:iyinent from the
insurance company of the amount of the jiolicy :
■^Held, that the compiny h:id not. under the
circumstances, any right t.) call n[ioii the mort-
gagee to assign his mortgage t.i them ; and(,)ua're,
whether, in any ease and under any circum-
stances, in the absence of fraud, he would be
bound to do so. Pniciifhil lii.t. (,'0. v. lv-:;vjf.
21 Chy. 2!)(;.
A tire policy, after a_loss h is t i!;en place, and
money h is become payable thereon, is such a
specialty or security for money as i~ seizable
under execution, though the aiuonnt payable
has not been ascertained, liuuk «/' Mnnlr. iil v.
MvTiirUh, 1.3 Chy. li'l,-).
Where an insurance conii)aiiy chooses, rather
than litigate the (jiiestion of their liability to the
assured, to compromise his claim, they cannot
afterwards impeach the settlement, although
they may he a))le to shew they have been im-
posed upon. And where the money paid upon
such a compromise had been, by the agent who
ett'ected the arrangement with the comiiaiiy,
paid o\ er to a bank to whom the claim had been
Having left them, he ' assigned, wdio thereupon gave up certain notes
held by the bank, the court refused to o])en up
tlie settlement which had been nuidc, although
the evidence distinctly shewed that a gross fraud
had been perpetrated upon the comp:iny ; that
the tire by which the alleged loss was said to
have been suataiued was cau.ied by the parties-
1871
INSURANCE.
Hi;
concerned, and that in fact the goods, the loss of
wliicli was claimed for, never were destroyed.
AVliere, in ohtaiuing tlie settlement of a preten-
ded claim against an insurance company, the
agent employed to effect the arrangement had
Ijeen guilty of very improper conduct, which,
however, had not liad the effect of producing
the compromise, tlie court, although compelled
to dismiss the bill, refused liim his costs of a suit
brought to set aside tlie settlement, and to which
such agentliud been a defemlant. Jiritinh A iiicrko
Aks. Co. v. WUkiiixoii, 23 C'hy. 131.
II. Life Assikance.
The exception in tlic last clause of 22 Vict. c.
8r),wliich prevents c(irp(pration.s, &o., "heretofore
authorized liy law to lend or borrow money,"
from charging more tlian six per cent, interest,
applies only to corporations created for the pur-
pose of lending money, or at least expressly
authoii/ed to do so, not to all wlio by the gen-
eral law arc allowe<l to lend it. The defendants,
a life insurance company, were in tlie habit of
len<ling money, but made it a condition that all
borrowers should insure their lives with them
for double the amount of their loan. Send)lc,
that even if the above mentioned exception
had applied to them, this would not crpustitute
nsury. Eduilnmili L'lfc Ais. Co. v. (Iraliaiii,
I'jy. B. r)81.
A policy of insurance recited that the plain-
tiffs had projioscd to effect an insurance on the
joint lives of M. and his wife, and had delivered
to defendants a declaration in writing, which
was the basis of the contract, and paid the first
half-yearly \ircmium. Ky a declaration of trust
the plaintiffs declared that in case of the death
of either ^I. or his wife they wouhl hold the
insurance money for the survivor and for their
children : — Held, that such policy was illegal,
under 14 Clco. 111. c. 48, s. 2; for the name of
the person interested therein, or on whose ac-
count it was made, was not inserted in it as
such, and tlie declaration of trust, which shewed
that the plaintiff's had no interest, could not be
incorporated as ])art of the policy. Held, also,
that the plaintifl's might recover back the pre-
miums, the omission to comjdy with the statute
not })eing a "delictum'' on their part, so as to
make the maxim "in pari delicto," &c., applica-
ble ; but that they could recover only the first
premium paiu, the other payments not appear-
ing upon the evidence to be made by them and
their own money. Held, also, that it was un-
necessary for the plaintiffs to produce the decla-
ration referred to in the policy as the b.asis of
the contract. Dowkcr it <iL v. Cdiiado Life A.-!/*.
Co., 24 Q. B. 591.
"Whore the judgment debtor, after making a
general assignment for the benefit of creditors,
surrendered a life policy to the garnishees at its
value, " the proceeds to be placed at his credit
on the principal and interest, " due on amort-
gage by him on real estate, and held by the
garnishees, and the garnishees accepted the sur-
render, but on terms different to those propose 1,
it W!i8 hehl, in the absence of an assent by the
judgment debtor to the change in the terms,
tliat the proceeds of the policy could not be
attached as a debt due or accruing due from the
garnishees to the judgment debtor. Lie et ctl.
V. aorrl,-, 1 L. J. X. S. 76.— C. L Cha,„i
Richards.
Defendants, l)y a policy dated •J.'itli Aiiu
1870, insured the life of .J. ('. for s|,O00, ti
paid at his death to the plaintiff' and twd „(
(the chihlren of .1. C. and his wiiti, if ijv
1 otherwise to the representatives and ussit'ii
' said wife anil children : — Held, tuidi r 'jij \
c. 17, D., and 33 Vict. c. 21, ()., that tluM,]
tiff oii the death of J. C. might siif fdr lij^
plaintiff's) one-fourth share separatilv, will
joiinng the others interested in tiiu ijij
I'limpTicl/. V. y<ithiii(il Life fun. Co, iif llir r
A., 34 Q. B. 3.-).
The plaintiff IT. and the otlur p'Kiintifi's
fants, by H. as their guardian ,uid mxt frii
I declared on a jiolicy of insurance, a]ltL,'iii.. ;
by it, in consideration of tlic ]Mvinium luj,
them by the plaintifl's, defendants iissuieil
life of F., and by said policy jnuniisLil t(j
the sum insured to the plaintiffs, wlui at
time of making tlie policy were rcspcctivelv
wife iiud children of F. ; and tliat wliil,.
policy remained in force, the plaintills tlion
ing respectively the wife and cliildivii nf
the 8ai(l F. died, !io. : — Held, on ikinmuT, t
the ileclaration suHicieiitly avcrn.'d tint tli.'
surance was ett'ectei! byF., under tin '.'ilViii
17, for the ))enetit of his wife .iml eliiMicu. [
Hehl, also, following the last ease, that the iil
tiffs could not sue jointly, but njiist lirjiii' st
rate actions for their respcetive shares? '
jdaintitf H. was, however, alh i wed td amend
declaring anew or her own shave se|iai;ittlv. ;
the names of the other plaintill's were stn
out. Fnmcr ct id. v. Plmnij- Mnim:! l/,f, \
Co., 30 Q. B. 422.— G Wynne, J., sitting ai.me,
By the non-payment of the renewal preiiiiii
at the stipulated times, a policy of lifeinsiim
became forfeited. The policy in'iivided tliatii
ment, if made when over due, Aveuld nut lice
sideredas continuing the pnliey unless the iiisa
was in good health at the time ; Imt the \\ni[
of the comi>any was, to receive p.aynieiit nisi
premiums, and to issue the renewal reiii|
within thirty days after the stiiuilateil fin
provided the insui'cd were then in gdod Ium!I
Held, that the proviso as to the insured In iii|
good health, did not apply to his actual sm
but to the general linderstand-ng i\i the inH
and their conseipieiit action therenn. Uik
therefore, at the time of paying the preiiiiiiiiii
giving the receipt, the insuieil had in fit
ceived an injury which soon after result
death ; but it clearly appeared that im
was anticipated by either the insured
medical attendant, or by the defendant.
selves, who had made emjuiiy and Iwv
knowledge of his condition : Held, tli:i
payment was good, and the forfeiture «aiv
Held, also, that the proviso as to th
being in good health, was to guard against t
committe<l on the company, and imt t'liirei
the company themselves, when in lullimssci
of the facts, dealing with the insurei'
also, that the general agents inCanaila
foreign company, must be regarded in the
light as the general agents at the lieail
tlie foreign country. Cawjihill v. Xulhmil
/ii.i. Co., 24 C. P. 133.
Tlie assignee of a pei'sou upon whose 1
policy of iiisunuice has been eifected, is uol
■A- )
X.
Mil
S. 76.— C. L. rhamli.
18(3
INSURANCE.
1874
, a P'lliev '^iitud •-'."ith Ai^iistJ
■ life of J. t'. f;'i'^l.'i«u..t«|
to the plaiutitt iiiid tWM.,t'ii,i
.1. C. anil l>is wilV-i, \\ livm|^|
, repveseiitativus mul iissiijiis of
hil.lreu -.-Heia, .n.,\.i- -I V,ct[
J Vict. C.21, <>., that tW vUiai
, of J. C. might sue tur \\\<\\\A
ourtli sliivve sui>aiat.-ly, viitln J
hers interested in tliu pulKy|
ithmal Li/'- ''>"■ ''"•"'■""'■•
H. ami the other iilvintifls n
i th'eiv guiirtlian and mxt fmm
iiolicy of iiis"ram;L-, iiUi'-iui; llii
deration of the i>riim«m lui
daintiffs, defendiuds a-x,„,,l tl
\ hy said liolicy I'Vi
•ed to the vlaiutitt
Ltillie is '" "■ position to give 1
Ijjll legal discharge. The Toron
I, HaMil'i J'if''' -''"■"• ^•'"•. 14 Chy
Ititleil to cl iiii interest on the amount of the policy
'"' " '" ~^""" to the assurers a
to Sariiiij.i Bank
Chy. 509.
See L''" V. Gorrlr, 1 L. J. N. S. 7fi, p. 1822 ;
Lv<i/ioHfl' Lij'<' A-ix. Co. V. Eijan, 20 Chy. 4G9, p.
B805,
III. Maiune Insurance.
1, /,(/.« hi'furc /.'.'.•i»(' o/" Polici/.
1 Tho iiwner.'^ of a tpiantity of wheat on board
3. fif-av'orlh'in('Si.
a-;siivi-4
luisi-il t"
, wliii lit thl
dicy were n.-syii'i1uolv tl
ifren o'f F. ; and that xv!,,k
ad in force, the plani •. Is tliv
4v the wife and cliddivn „
ed &c — Held, oil di'uiunw
jn'sutticiently averred tint tW
;ttectedl,yV.-"'"^7t'.'-''^"!
.lehtofhlswife.u.dcluMim Bi
ill„wing the last cMse, that the \h
,t sue jointly, hut must hnng V
for their respective shares,
was, however, alloweil to auMi.
uw or her own share scliavatfly,
,f the other phiintitis «hv <t
- ,d id V. rh'-nlr Mi<i<'<:f !.■'■
,1., sitting aliiie,
wal preiimi
lilfiiwini
ited. The policy pruviaeatlut
le when over due, wouhUnc.
i.tinuint' the pohoy unless lie uiMifl
Eluiat thi time; hut theH
u.y was, to receive iKayiuentns
,„t +■> ^ssue the vcuowal le.eipi
5. 422.— ^'Wyniic,
n-paymentof the l•cllc^^
lated times, a policy nt 1
tv davs after the stipiilatea t„
I ^. 1 «-,.r.. then 111 '''xvWk)
e liwui-ed weiL tii.n |" <r _
vessel, applied to the agent of an insurance |
jiisiiy tii insure the same, who took the risk, !
ibiect tn the apprfival of the head ofhce, who j
ithoiized tlie insurance, and directed the agent j
remit the amount of preniiuni at once. The ,
itrs (if the wheat, instead of paying the pre-
min, creilitcd the amount to the agent in their
iks, anil lieforc any policy was delivered in-
ation was received of the loss of vessel and
wliicli had in fact occurred before the
iiiwsal for insurance was made. The ccuupany
len refused to issue a policy, and a bill filed to
Blitltheiii to do so, or pay the amount of loss ' entertaining a strong conviction
taiiieil, was dismissed with costs. II oMr?- v. plaintiff's own shewing, and
IfiLs.Co., 7 Chy. m. ' -
I the
Semble, that the seaworthiness fif a vessel ia
a fact to be considered with reference to the
particular navigation in which the loss of the
vessel may occur — as, for instance, if a vessel
insured between Toronto and (Quebec, were lost
by stranding in the river St. Lawrence, the
([uestion for the jury would be, not was she well
found and seaworthy for the navigation of the
open lake Ontario, but was she so for the navi-
gation of the river ; and if in the opinion of the
jury she was suitable for the river navigation,
though clearly not so for the lake, the policy
will not be vitiated, unless it be so framed as to
leave no doubt that the intention of the parties
was to make the unseaworthiness of the vessel for
either navigation an absolute cause of forfeiture,
without reference to the particular navigation in
which the loss should occur. (•'i/lr.sjtli' il <il. v.
Britlth America Fire ii- Life A.*.i. Co., 7 Q. B. 108.
In an action upon a policy of insurance, where
the (piesti(ms of unseaworthiness and deviation
w _re involved, and where there hail been two
verdicts in favour of the jdaintiff, the court,
that on the
;ivinu- every
weight to his evidence, he was not entitled to
recover, granted a new trial. Jfair ,,i/i y. JirUts/i
Amirira yl,M. Co. ; Coai-toii v. (Intnrh) Fire ami
Marine Ins. Co., G C. P. GO, (i3.
In a policy on a plaintiff's vessel, insuring only
against perils of the sea, one condition was, that
defendants were not to be liable for loss or dam-
age arising from unseawfu'thiness. The vessel in
((uestion, some fifteen minutes after she had left
,iisiness of the assured, without actually I""'*; I'eg'in *'"> leak, and in about rive hours
the iiiouey, although the receipt was
nriiii'i'f'
|((u;iTe, whether if in a receipt for premiums
t^'iT'h "hist or not lost," are not inserted,
lietiiie tlie policy issues a loss has occurred
luLunij known to both parties, the insurers
mil lie liable for the loss. //*.
IHoM. (Ill appeal, athrming the decree, tliat
euieiefaet of the agent of an insurance coni-
tey«eii'ling a receipt for the premiums to the
K;::is;^t,:th:nisuivii..«3
f aid not apply tl. lus aetuah
Lieral understandMig ot !'>■ W
Lnse<iuent actum thci-eoii. \\li
tene of paying tjieiireima.
receipt, the nisureil had m ^i^
\,/>t'codiu;;;!-"-^i^!-^
r«od,andthef.irtV.tui-e«iu
tint the proviso as to the ;
health, was to guard a,.- r.
1„„ the company and t
V themselves, when m
^ dealing witl. the nismeJ;^
,pauy, mustbcitgai ^^,^.
C. P. 133.
surance na^ "kcu >•
I relying on the amount being sent, was not
JEcieiit to complete the contract of insurance.
|'.Sl.'liv.217.
2. Reprenentationn. :
Tieie a ijarty insuring a vessel omits to men-
11 til the miilcrwriters that she has then sailed, ■
lomissimi, though the insured knew the fact,
1 iiiit vitiate the policy, unless the vessel be \
ike time of the insurance what is called a
ship." Aliter ; — If the insured, when
•sly nuestioned as to the fact, says, not by |
bf iiiiiiiion or expectation, but positively,
1 tlie vessel has not sailed when she really
Semlile, that there is a distinction to be
Is when the owner of the cargo, who is not ;
p same time the owner of the vessel, is in- j
j' liis cargo, as to the probability of any :
live statement being ma(le to the underwri- j
|¥ith respect to the time of the vessel's sail- j
hmj V. British Aine/-ica Fire and Life ,
,4Q. B.330. j
tere an applicant in his proposal to an insu-
eoimpauy for a imlicy for £1,000 on a ves-
M tickle already insured for £3,000, valued
it£ti,00O, and on the trial the average value
TJlietent parties was between £3,000 and
7Hel.l, that the applicant's valuation
fi'it ill itself constitute a fraud to vitiate a
Kt, Imt was evidence to go to a jury with
[circumstances in the case, and the court
1 .1 vtviliet for plaintiff. McCuain v. Unity
|/»*. Am., 9 C. P. 85.
118
went down. Both weather and water, it ap-
peared, were at the time jierfectly calm, and no
actively adverse cause could be or was assigned
for the accident, nor was any evidence given by
plaintiff to rebut the presumption, which, it was
contended, therefore arose, that the loss was not
occasioned by perils of the sea : — Held, that the
plaintiff was bound to have given this evidence,
and that the absence of it disentitled him to
recover. The court granteil a new trial, though
of opinion that defendants were entitled to anon-
stiit, suggestingwhether, if evidence were given of
defendants' knowledge of the age, build, ami
material of which the vessel was built, at the
time of the insurance, it might not be hehl to
modify the condition as to seaworthiness, so as
to make it subordinate to the particular vessel
being insured. Co<in» v. ^Etna /)>■■<. Co., 18 C.
P. 305.
On the new trial one H. was called by plain-
tiff, who proved that he, as defendants' agent,
accepted the risk on the vessel iii (juestion ;
that he had seen but did not examine her,
but judged her wholly from the registry, and
insured her as B 1 ; that a B 1 vessel would
be insured as readily as an A 1, the charge
on freight being the same, and the sea-worthi-
ness would be expected to be the same, though
the A 1 would not be so likely to go to
pieces : — Held, that these facts did not bring
the case within the principle laid down in Bur-
gess V. Wickham, 3 B. & S. 6(>9, and Clapham v.
Langton, 34 L. J. Q. B. 4(5 ; and, therefore.
Held, that the new evidence did not alter the
position of the parties, and that a nonsuit was
properly directed. .S'.C. 19 C. P. 235.
If5 '
INSURANCE.
In a miriin iiiaurxnco policy issued by defend-
ants to plaintiff, among other excepted perils or
losses, were tlioae arising from rottenness, inher-
ent defects, an 1 other nnseawortliiness. At tlie
trial it appeared from plaintiff's own evidence
that the ve.stie! in (piestion, after sailing all day
on a sinnmer sea, with a light breeze, in tlie
evening sud^lenlj' came up into the wiml, or
broached to, refused to answer her helm, and at
once began settling down, when the crew aban-
doned her, and after tliey had rowed about
thirty-five yards she sank. The master could
give no reason for this, nor was any evidence
offered in explanation of it, while the evidence
for the defence went to shew that she was old
and rotten in parts, tliat she in fact leaked be-
fore starting across the lake, in the canal and at ■
the port of lading, and tliat men would not go !
in lier without ))eing jiaid extra wages ; and the |
plaintifi' himself .stated tliat she was oM and he j
had given instructions not to canal lier by night ;
or leave port in a gale. The diver, who examined ;
her, also fouml one stave wholly out and another
partially so. The whole case having been left
to the jury on tliis evidence : — Held, that the
learne<l judge should have ruled according to
Coons i: .Etna Insurance romi)any, 18(". l*. 'Mil't,
and 1!) C. P. "i.'!."), and if plaintiff declined a non-
suit, shouM liavc explicitly told the jury to tinil
for defendants ; and a new trial was, tlierefore,
ordered. JA///'.v v. Jfonfrcul /,i.-<. Co., 20 (". P. --'S.S.
In an action on a marine policy, insuring plain-
tiff against ]ierils of the lakes, loss arising from
unseaworthiness excepted, where th" evidence
sliewed tliat the vessel was in excellent condi-
tion and scawortliy wlieii she left ]iort, and
apparently up to tlie time of loss ; that a squall
struck her, and more than three hours after it was
found that slie was leaking much, in consequence
of which she filled and went down, there being
no charge or suggestion of fraud, malpr.actice, over-
value, or anything whatever against the plaintiff,
the only remarkable circumstance being, that in
the protest made liy the master and mate there
was no mention of the s<piall, nor was any cause
assigned for the leak or eonseipient loss : — Held,
that the judge was right in submitting the case
to the jury, and that the evidence fully warranted
the finding for the plaintiff'. Dammn v. Hume
Jii.i. Cu., 21 V. V. 20.
Action on a policy on a vessel, alleging a total
loss. Plea, tliat the jdaintiff knowingly and
wrongfully sent the vessel from the port of
Toronto in an unseaworthy state, and jiermitted
her to remain on tlie lake in such state, and
without being properly e(piii)ped, and that by
reason of the premises only tlie vessel was
wrecked and lost ; — Held, that the plea was not
proved by shewing tliat the vessel was unsea-
worthy when she was Wicicked, unless such
unseaworthiness was the immediate cause of the
loss. Woodliouse v. Prui'hicial Jim. C'u., 31 Q.
B. 17(5.
See HdtiiiUon v. Montreal Ans. Co., 2.3 Q. B.
437, p. 1880.
might re(iuire. He directed that tlie Hour sli,
be insured, and the defendants elicited
suraiice with the British America iiisuran'"
The Hour was shipped by the defemlaiits iM
Credit, ccmsigned to C it (!o., (.tiuliur, 0,
to the negligence and want of skill nf tin-
tain, and of a pilot wiio was taken in at K
ston, the vessel was stranded in tliu St ?
rence, and the cargo lost. The polii yniiitii
an express stipulation that the ((iiujiaiiv «■,
not be liable for any lo-s occMsioiuil ljvtlio\
of ordinary care or skill in the navi;.'atiiiii ,,f
vessel, and the plaintiff' therefore ^faiUd to
cover on it ; but it appeared that this wns
ordinary form of policy, ami that tliu (klcnili
could not have procured any otlur : - HeM i
the plaintiff' could maintain iki iRtimi a.r
the defendants for taking such a fui-m (ifiiJi,
and that, in the absence of any j.'rn\iiiil I'lj ,
pieion, it was not their duty to iiii|niif Jnt,,
skill and experience of the cajitain ,n- ia„
the vessel. And seinble, that if an iiisnm,
miglit have been eflecteil on iikux. Uxvunn
terms, yet the defendants wnnld liavelitin ii|.
lied in insuring as they did, having rcci-ivtil
special instructions, and the ciJiiiiJanv liiiin,
with which such insurances weiv nsnallv clltd
by tlie trade
(,). B. 414.
Silrirthiirnr v. (Hlh.
4. Care and Skill in Kavljation.
The plaintiff entrusted the defendants, as com-
mission agents, with a (juautity of Hour either to
Bell for him at Toronto, or to send it to be sold
at Quebec or other places, as circiiuistances
Action on a marine policy, '{"lie ju|.y ,|.
issues raised as to the negligence of the caiita
and crew, having found for defendants, a nj
trial was refused upon the eviilencL^. (,;.';„■
('/ at. V. British AiiKirlni Fire mi'l I li', |,, p.
7 Q. R 108. • ■ '
Semble, that with respect to the car^'n insnJ
as well as the vessel itself, a inaiiiie poli.viiu
by an express (though not by an iniplieil, a^n
ineiit, become legally invalid im- the w at
care and skill on the jiart of the caiitaiiu
crew in navigating the vessel ; and siinlil;, tl
the wording of this policy annumted td ,-ii a
express agreement. J I).
Declaratiim on a policy of iiisniainemiai]
pellcr. Plea, that the vessel was hist in
Iklichigan bycoming into collision with a s-Ik
in American waters, and that the il'lit;
liabilities under saiil policy on aiTuuiitufi
C(dlision ought to be governed by the huiv-ifl
United States, according to whieh all stt':u
must keep out of the way of sailing vea
and in case of collision and hissoceasiniailtlj
by to the steamer, it is pres'inied that tin- 1
was hers, and her owners eanimt iwivrri
the owners of the sailing ves.sel or fnnii iii-iitl
that the plaintitt''s steamer did nut aidifll
schooner as she might have ilone, wlnriiiyl
wreck was occasioned. lU'iilieatiim. tli.iif
plaintitF's vessel did not collide with tlicsdii/
through the want of ordinaiy eare ml -ki
navigating her, such as is piniier in the
tiim of the lakes. Rejoinder, that tliu |inip
was an American vessel, sailing uiulfr Asa
colours, and in American waters at the tii
tlip 'oss : that the defendants are an .4iii(|
conijany : that by the Ainerican law.
plaintiffs well knew, the sehnnni'r was ju^
111 keeping her course, Mhile the stiaiiursP
have turned out r)f her way to eiialik' krl
so, as she might have done ; yet the m
course was not altered, as it easily iiiiglit|
been, and so, by reason of the saiil laof
collision did take place from the w:uitotoir
lirectetl that tlu' Wmr slumU I
(lefemliwts (.'HVrti'il ;u\ iii-
itisli Aniuvicii liisuriiiice Cd.
led by the i\(.'f«uiliints ;it Vurt I
,() «;."& •'"•. •i*"''^";'^'- 'Hviii^l
luil want i)f *>lii>l '<^ tin- i;ai,.
;wh() wiv» t:iktii ill iit Kihn-^
Jv8 Btraiiile.l in tiiu St. 1.^-
^olost. 'nu'\wlirynmt;m.,ll
'tionthat the cumiKUiy wuiiRl
HY Id-s oci^iisiiiiifl I'V thowmtl
r skiU ill tUo iKivi^'iiti'm ..f tliel
ilaiutiff tliwvfor.^ faik-l t" re-l
it avveavc.l tliat tins was thel
noUcy, ami tUiit tlif a.'Uniiiiuul
i-ocure<l any "tlK'i- •• Hi'l.l.tliatf
1,1 maintain no !V>--tum iii;;iius«
„• taking »ii>^l' 'i f'"''" "* V"lM'i
a\,seuce -f any l'I'ouu.I i-r •
.ttlieiv ,Uityt.M.n,imriMm..thd
ience of tlic favtiuu nwawr*
a seinblc. that it mx mmm
BU ettcctcl oil movo tav„Hr;,l,k
lefemhuits wnnhl hiiveliiiu iibUl
as they .li'h li-'^-'»'^ '■7':
ions, and the ^■""U'^i'iv >;'
IS"
INSURANCE.
1878
li insuraiiuus
Sih-ri-tliiiritf V
(,■;'/'.
V marine volicy. 'H- i-y. »P
,s to the neghgeiR-e ot til uvta
f.mu.l for .lefen.\aiits, aiiej
the eviik'iieij, '^
,'ing
iseil uiiou
at^•ithresveottotl.ec..■gHJ..^«^.
e\^,sseHtself.an.anu.v:
(Hum^'hnothvanuiivholiwi
'Olyiii-^^''^ -"•■''""■''
enient. ^ ''•
,nouavolic.yofuis"v^"--"^'
ill
*.
•^rS ai^V that the riglm
;{-the sailing vessel or t.™.«=«
"i ste ""'
she might
■v ,\iil ii"t »^">''
tjrc anil s'l^'l' i" navigating the steamer. (Sur-
isji.iiiilti'i t''''f ^'i*^ steamer was not lost through
tlfff.iiit (if ordinary care ami skill in those iiavi-
ntiii" the steamer ; -Held, on demurrer, that when reeovared ; hut jilaintiir
|ij5Jinej"i"der was good. As to the plea, held
I ^jtthc allegation of want of care on the plain-
' I'slKirt fii;ined no <lofenee ; and that, if it had
1 Wiiivcnv'l in the declaration that the contract
tisiiiiiih' in thi.s province, the American law
Uiiiilil iii't govern, thuugh the loss happened in
1 iki'ir M:iters. r<t/tii:-<oii v. I'lnithniitat Int. C'li.,
1S(|. B. '.I.
m
while jiroceeding upon her voynge, and tlie jilaiu-
titl (Uigiit to have used prompt and etiicieiit means
for lier safeguard and recovery, and repaired her
legleeted and
refused, ami thereuiion <lefeiiilants interposed
according to tlie terms of the policy, recovereil
and repaired the ves.sel, and ]iut her in as good
rep.air as l)efore she was stranded, and ottered to
restore her on payment hy jilaintill' of liis fair
proportion, hut he refu.sed ; and that defenilants
caused a proiier survey to he iiia<le liefore re-
pairing. I'lMin deinnrrer, — Helil, no answer,
because it (lid not sliew tlicrc was no construc-
tive total loss, and tlie right so to actnnist, under
the tenns of the iiolicy, be taken to be tor the
benelit of all concerned, and without prejudice
to tlio rights of either party. Tliird plea, that
plaintitf did not duly abanilon, nor did clefcn-
dants accept tiie aliandonnient, as alleged ; liftli
plea, that the abandoinneiit as alleged was not
suHicient to convey to and vest in defendants an
unincumbered title to the vessel. 15otii pleas
5. AhtiHihrniiHiit anil Lom.
While in an actiim on a marine policy the
ijaiutitl' recovered as for a total loss, the facts
£„i„_r only a partial lo.ss, which, however,
itKiu't sii ilistinetly left to the jury, the court
Imiitftla new trial without costs. Diu-U v. ^V.
lldiovB'.'' hdaiiil Marini- Iii'<. Co., 3 Q. B. 18.
Vliiiving with P.. (though H. was not named j hehl good on demurrer, l)cc,iuse if not traversed
litlif imiitgage) a niortgage^upon a vessel, m- ' they wcndd lessen the proof to lie j,'ivcn for a
iBif 1 lur lor ttiOO. 'J"he vessel was wrecked and
libaii'Wiittl liy the mortgagor, and the insurers
|itit tilt ii' agent to take charge of her. The loss
Miiveii til he eipial to the amount of insu-
„.,;-Hflil, that A. had an interest in tlie
|t(selt"tlie aiiio'.int of the mortgage ; and tliat
. uiiih-r the circuiiistaucLS being an actual
^ss, riiiniiiiig no imtice of aliandonnient, the
jiili.ti"!" tlie plaintill" could not be disturbed.
,-./v. Sf. IjnrrciiCi- /»■<. Co., S Q. \i. ].').').
I Wi,di the owners of a vessel which was strau-
fcigiw notiue of abandonment, and the master
■xnuli on beiialf of those concerned entered
ji a cMiitract to get the vessel otl', which was
ml tlie jury expressly found that the
iiiditu was such as to warrant a prudent owner
aUii.iluning the vessel as a total loss, and
kktil a verdict for the jilaintiti' generally ;
cmirt k-ing of opinion that the evidence war-
it*! the liiuliiig of the jury, anil that the
itili'swei'o entitled under it to give notice of
mui'iit, (as of total constructive loss) sus-
the veriUct. Kiinj it tt/. v. Western Amu.
: r. P. 3110.
iilantion (alleging a total loss) on a policy
^JoOOO iiu the hull, tackle, apparel and other
constructive total loss (with a view to which the
declaration seeme<l framed). Kifth plea, that if
th'j note given for the jireiiiium sliould not lie
paid at maturity, tlie full anioiint of premium
shoiiM be considered earned, and the policy
sliould become void while said note remained
over-due ; and that the plaintitt'did give his note,
which lemained over-due at the tiiiu; of the com-
mencement of suit. I'jion deiuuiier : }leld,
that there being a provision in the policy that the
premium note in ciuse of loss should be deducted
before payment of the amount insured, and the
lireniiuni note not lieing shewn to be due when
the loss occurred, the plea was bad. M((ii/lifvy.
Ifonii' /iiM. C,i., 10 C. P. 3i;}. FoHowed' in the
(Queen's Bench pro forma. Mcnijlur v. JCtmi
liiM. Co., 1>)Q. B. -i.m
,ued. Kevhcatini.
her, such as .'*}"',,, ..^ tlicvni
.erican vessel, sauuig .
.UnAmenean^at^ ); ^^,
that by *\'f -;'i,„„,.nv.wi..
^U knew, the s| .,d
A out of hei vv ) ( ,, J
Defendants insured a vessel for !?.")000 by ,a
policy which provided, among (>ther things, that
i no acts of the insurers or insured in ease of dis-
i aster with a view to saving the proiierty should
be considere<l as a waiver or acceptance of aban-
donment, but should be without prejudice to the
rights of either party : that tlie insured should
not have a rigiit to abandon in any case, unless
the amount which the insured wouhl be liable
iturciif the steamer " Boston," which stated 1 to pay under an adjustment as of a partial loss,
valut to be .'^15, two —that in case of loss, exclusive of general average, should exceed half
i[)t uotiee of the disaster anil plan adopted , the amount insureil. A lueinoranduni was writ-
tktriTOviiy and saving, &c., should be given ; I tei. oil the face of tlie policy, and set out in the
lalmui', ami travel, &c. , without prejudice \ plaintiti's declaration, as foUows : " N. B. — It is
le iusmanoe, and after survey, as therein ' hereby understood that the above named vessel
fcl, insured were to cause the same to be is insured against total loss only, and no claim
for general average loss or jiarticular average loss
to attach under the policy. " The vessel struck
up«m a reef in the .St. Lawrence, on the 30th of
July, in calm water, and where no wind could
afl'ect her. On the (!th of August the plaintiflf
gave notice of abandonment, but defendanta
refused to accept it, and ten days after they got
her off and repaired lier, at an expense in all of
about $3000, the declared value of the vessel
being!fir),000: — Held, 1. That the written memo-
randum providing against a recovery except for
a total loss must prevail, although several printed
conditions inconsistent with such an agreement
were left in the policy ; 2. That the negative
provision, that the insured should not have a
right to abandon unless, &c., (as above,) would
ami in ease of refusal insurers were
lioriztd to interpose and cause the same to lie
J, &1.'. All acts done or co:ii nitted to be
Itlie IjciK'tit of all concerned, anil not to pre-
e parties ; that the insured should have no
It to abandon unless under particular circum-
> anil under no circumstances except by
to iiiitice delivered to the autliorized agent
e insurers, nor unless such notice should be
|aent to vest in the company an unincum-
laniliierfect title to the sulijeet abandoned.
11 tniliirstnieut on the policy the vessel was
w igaiiist total loss only. Avennent, that
' intitf duly abandoned to said defendants,
Ithereupon accepted the said abandonment.
pi \\n, that the vessel became stranded
m
not eiialilc^ liim to do so as of cotirso in the event
specified, it not otherwise entitled ; 3. That the
evidence sliewed no total loss, aetnal or construc-
tive, and that tlie jilaintiH' tlierefore had no right
to aliandon.' The test liy which this right must
}>o determined is, whether a jirndent man would
think it worth liis while to attempt to save an<l
repair the vessel ; 4. The policy liaviuL' been pre-
pared in the United States, where defendants
were incorporated, and transmitted to their
agent here, with whom the plaintiff insured —
that the law of this country, and not of the for-
eign countiy, should j;ovcrn, the contract being
in fact made here. .Uitujlur v, ^Etiiu Itis, Co.,
'JO Q. H. (JOT. Sec, also, Meiuilu r v. J/oiiir /iix.
Co., 11 C. I'. 3-.'8.
The underwriters, ten days after they got the
vessel off the rock, carried her to a harbour in the
U. S., wliere they had her repaired at an expense
of §3,000- one-lilth of the declared value of the
vessel -whicli sum the plaintiff' neglected to pay.
Thereupon the underwriters caused such pro-
ceedings to be taken against the ve.-scl in the
courts of the United States as resulted in the
sale of the vessel under process, at which the
agents of the insurers became the purchasers in
their own names, but in reality in trust for their
principals. 'J"he insurers sulisetjuently sohl the
vessel, and their vtn<lee shortly afterwanls re-
sold her, and, owing to jicculiar circumstances,
at a very large advance. The jilaintitl' instituted
juixx'edings at law to recover the anuiunt of the
policy, which resulted in favour of the defen-
tlants, and ten years afterwards tiled a bill in
this court seeking to charge the insurers as trus-
tees for iiini of the vessel : — Held, without refer-
ence to the delay in proceeding in this court,
that the insurers were entitled to hold the pro-
perty unalieeted by any claim of the plaintiff',
and the court, although it considered the plain-
tiff" entitled to any surplus that remained in the
hands of the insurers after payment of the
a,mount expended by them upon the vessel, were
unable to grant him that relief, and dismissed
his bill with costs. Mdnihi^r v. ^Ktna Ins. Co.
etui., 20Uhy. XA.
The declaration on a marine policy set out, as
anion'' its provisions, that a regular survey should
be held as soon after an accident as possible, by
competent persons mutually chosen, &c., and
when a vessel after survey should be found
capable of being repaired and made as good as
she was prior to the accident, no abandonment
•would be allowed without the consent of the
defendants : that she sliouhl be sound and sea.
worthy, and well manned and found, and if on
a regular survey she should be declared and
found unscaworthy on account of being unsound
or rotten, or incapable of prosecuting her voyage
on the same account, then the assurers should
not be bound to pay anything. Plaintiffs then
alleged a total loss, for which they sought to
recover. Defendants pleaded that no such regu-
lar survey was heM as required by the proviso
set out in the declaration, although the vessel
was at time of the accident and of commencing
this suit above water, and was a proper subject'
of survey, and they were willing to choose a ;
surveyor : — Held, on demurrer, plea good, for j
that the provision for a survey was not confined, |
as the plaintiff's contended, to the case of a par- i
tial loss ; and on this declaration the plaintiffs i
could have recovered for that, as ■well as for a i
I'jiUlilc.ll
total loss. Jfiiiiii/ttjii V. ^FlJllll■lil^ 1
; y. B. 437.
In marine insurance, notice nf .,.^,„,,
is indispensably necessary in all c:ir,-',"li'i^,f
I insured elects to aliandon. In tliis -k
1 vessel insured ran upon the rock.s i.n the ''
October, and the defendants' aguit was iui'd
of it by the insured on the KUli CuuLi.t I'l'i
was not informed of his alian.li.iinn^nt !,,
total loss until he made the pr(pti>t l,vi'„r
agent on the ITth October, anil ik, t,,iiiial"
donment in writing, under tliu tiin,,' „f
policy, was made until L'Ttli UecuiiiLei-i,!],,,
when the vessel had lieen tlcatcd i,tl aiul'ui
lost by the carelessness of the iiiMiriil ■ ..}
that the notice was too late to lie iwaij.il,],.
if there had Ijeen .such a loss as wi.iilii liavi
titled the insured to aV>ai:d(in. WJHtlien
is to be considercil a total lo.-s, (ui iiu'ls „',
fact whether the vessel, i,s injiirul, is uselt
the owner unless at an exjieuse ihiit im lau
man, if uninsured, would ipnir. an ixiui«(
ceeding the value of the ship when iviiii
In this ease it appeared that u\\ the ninth
after the vessel went upon the n (.■];.< tin-
tain, on returning to hei', louml hur inasi'i.
state as on the second day, and that she n-iiiai
between two and thrte weeks in thu roiks
then floated two or thiee miks liJuy. jj
ther appeared that there was M.t the .«li'.li
attempt made to get her i .ff' or recuvt r her, iir t
to examine her, while all the witnesses saiilt
would have tried to get her liff, ami it sett
beyond doubt there were ei^ht daysihirin -wlij
from the calm state of the waui-, f.n utttn
could have been successlujly lUinle ; fi.r wit]
three days after she first ran m the rirobi
floated again without any assistanee, aii'l tli{
was evidence that even one nnm eniiLllii
hauled her off, but the captain, a witinss.-tat
intimated to him that he did nut nieanto
anything with the vessel ;- Hehl, that tli.
dence whollj' disproved a tital h'ss, eitlitr:
or constructive ; — Held, also, that tlit- la
the plaintiff not having madeaiiy exertinito
the vessel oft' was no ■in
ti-r a iicwtiijl,
if the veseel got on the rocks i.y peril
sea and was injured, the plaintiff ivastiitil
to be indenniified for that ; am! that la- was
obliged to take her oil', but iiii^ht leave 1;
the rocks until she went to pieces, tlimi:
could not recover for the destinetii.ntliiij'.-i
tarily suffered, lliirtli ii v. l\-i>c'ihi-\d I,,-.
18 C. P. 33o.
Held, following Italli r. Jainsuii, (i ¥.. k B.|
that where by a marine policy gomls of the
species, shipped in packages, are in.siircil,|
from average, unless general, aiul it is iioti
tinctly expressed that the [lacka^us aiv
ately insured, the ordinary niemiii'aiiiliiiiiexc|
the underwriters from liability fur a tutalloj
destruction of part only, (nut lieingj;eiieralli
age), though one or more package nr pack;!*
entirely lost or destroyed 1 ly tlie spciitie'l
Here some of the packages were tin piati;,!
others tinned sheets. Senilile, that ii eitl^
the entire species had been oiitiroly liti
plaintiffs might have rccovcreil as Inratiti
of that species. Muvve vt k/. v. I'lvtiacl^
Co., 23 C. P. 383.
Where to an action on a |iiilieyfit iiH
on plaintift''s vessel, the delemlaiits pliiMnl
before the loss the parties canctUeil tlie J
\m
knljiitftl fur ill ^'fiicTal itvora
iStiOl
ftoiiilton V. Jfuiilrml j^j Ci^ ,,,,
iusiinuici.', iii.tifti ui al,r.ii,l„min.„y
ily iioufssary m all cii^,,,, ^1^,,,. ,1^^
;s to uliaiuldii. ]ii tliis catu tl
I rail uiiuii tlic rocks cu the llth,j
tlie (leftiulaiits' :i^'.ntwasiiii'i,in,j
usureil on the Kitli ('itnLer, liuty
rnicd of \n-A aliaihlininicnt us furi
:il lie niailu tlio innti^t luiurf thj
ITtli OctoliLT, and un fnimal ai,,yj
■writing, uinkT \\w Uui,,, „,■ \<1
iiado until "iTtli Ikcuinlur filluwini.
ssL'l Inul been tloattJ I'liaml iukiI]
•arclossness of thu iiiMind ; ^-H^.j^
.(.■e was too late to lie :'.vailaliif, i-vfj
been bUeli a loss as wi.uM liavttiJ
Hired to abiaiiiloii. W lutlur ii!.
iidereil a total lo.-s, liqc'Uilsintk
• the vessel, as injuml, is nsek-sj
iiless at an expense that in. jinid
isured, would ii:tiir, an ex|:u!>
value of the slii)! wlaii iciairci
it apiieared that nii the iiimlidL
j«sol went upon the iv-cli.i, tiitial
irniuy to her, fouuil 1;i.t iij as i;i,iill
he second day, and lliat she itiiiainj
) and three weelis in the idiks, j
two or three niiks lith.w. Itfuj
ed that there was iK.t the sliglite]
le to gether oil' or reeiivtrher,iirtv(
ler, while all the witnesses saiil
tried to get her otf, and it so
)i there were eight daysdiiriiigwLiJ
Ini state of the wattr, ini attiH
been sueeessfuily niaite ; fdi- witlj
ifter she lirst ran c u the rccbi
II without any assistance, aii'l tlij
ce that even one man cnulilliJ
iti', but the captain, a witness ttatl
(J him that he did not meantol
ith the vessel :— Held, tliat tlie
y disproved a total h'Ss, cithiiMctj
:tivu : — Held, also, that the tactl
:' not having made any cxirtinito^^^
oli' was no grouml fnr a new tiial^^f ^ 1"'!'^')' ;'f insurance o
il got on the rocks by perils oil
vs injured, the plaintilf was uitil
inilied for that ; and that he wa
:ake her oli', but )nij;ht leave iiei
iitil she went to pieces, i\\n\\A
fcovev for the destiuctitinthiisvof
red. Harktiijw V ruduml h<,\
5.
lowing llalli r. Jaiisnn, t; K. i B.j
by a marine policy gonds oi tlitl
pped in packages, arc iiisuii'l
ge, unless general, and it is iwtl
ressed that the packiiyes aic s»
■d, the ordinary lucninvanduiii cx«|
.Titers from liability for a tiitalla
lof part only, (not being geiieralj
;h one or more package or iiaekai
It or destroyed by the siioeititilii
of the packages were tin I'latcV
led sheets. f>eiublc, that ii eitlj
species had been entirely bsU
light have recovered as fur a tot*
jciea. Muure d al. v. I'mIh^
P. 383.
to an action on a imlioy "f i
fs vessel, the defendants ]}h'M(
loss the parties cancelled tliep
I^^SURANC'E.
S;£^S£"^^^feLS]''--cenatio„, ,vhe..there- ' ''''
brei'iivei. I er J-faovutv (' r i- '.'-"t'cieil Ato .if oii <.- " "< '''•i"ortliv ;iiid «,.11 f i
.i,H ,. the def^jihis; nniig. ^s^^r 'i^ ^ .-n:^";:'T,::r 'T'^'---" i^ £
Ljcven if the defendiuits «ere eo, n!'l'.'^ •''''''*''''-' ' '< ... " "" "'■^'"" "" -i I'^'liev of i,w„..
Lththe plaintitr. tlic caneedh ti, : ^ 'A"".'!'"'^ 5 "^"T^ 'ii'e, defen. /, n'ts , "■■;"^:^' "',' ''' •"'team.
Li .as ,na.le under a eon u ' ^t;^'',^," 'l^ ' 1,:;' "'\ ''^ *''- l-'iti; .•:',•;," '^'^'^ «'-^th
I ""• '-". Jo ( . ]-- -.ij steainor sliould not ,.v ^i "'"'"'•""•e on said
';;"""• 'wd the in",,,. , .*''^l"''"■y •^'"-•■Id he
I'IhmI tliat the win „f- "'*^' l''""tiHs re-
f-'-tthat the t::t^ ';" s,;:t'^7'-"' '" ^--^ ^o tL
^^^••''•'■'l/ah,o, ..uidil,' ;:■"''"''■''"'''■ the de-
^•xeeed said value • f,u'' T"''"""" ''>'' ""t
'■^'Vhvntum, and th.-it t . l' f "'"""■'''■. '^ Ko.,d
'';"! " '^■gfd, and de,?v , '""" *" ''^^-''^ they
'o Q. B. o84. ""iii^-iul Jnn.
Iiefdi(L(iits insured the obn'nfi'ir • ,. ' '
Lcyenntaini,ig nothi.J IX £-?''f '^>'f
Kwmlland.leJkh.uloreo I iii. ;''''• '^
^rat('levcla,,dforToiv,ntobv 'b ri' l"'''''
^.lu.rov.d.^l,''allp,.opert/o;iZ 'fe
licoers. Mie Went a.shoic duri,,.' <i ''
kaml the coal upon .leek u' IV f ^'"^'' \
Llnionlcr to get lier c. K , l':, ' ^ '''^•"•:
Ljllierest of the c.-m^,, whi,.h\^' f, i'"'**"-'^
peiito «t the polic s" d IS , w'f' ''^^"^ »* '
Ih,. was forVess s tra , . i '. ^,^ *''^:, ""^ "*' I'l
P(ieveiandto..a.,,.J:;!;:';;tJ;:^"Xid''r'''L'' '''
^■'V : t:"^ '^■'■"" "'■ tJ'^ wii "f 1 . '' tint
' iltlciidants were not linhl.. t '"o cu.it
>irsharei,f the loss. ,^e 1 c I ou""'"''V"^
ItM- the hill of lading ^]"ef 'r'''- ''"'t
toforthattheu^i^'.'^ ;;'^"|7'"J'l
L.lmittcd, the jetti.^1 of Mieh^ :';;-£
fciiaut any usago t,, +, _ , ""' '" me
.t.l '■'""*''"■>■' >""*t be
~--ri:--,^^^ '^IfifSri-:;;
'-Sr;;*:s:;,s:.S"i!::;v'^f--'therin
th'^'^'-ne .'.Llorsed on he i''"'""^'; '"■ '"'^"'g
!"'^ '■^•Plied that thev ,."■'• ■'''■'''' tl't'1'l.-dnT
'"^'"•anees to defei 1 ,„V i '"^ ""^'^'^ "f Mich
''"■■^e the sanie H , if ,'- ^;:'"' '"-'yl-eted to en
' 'L'I'lieation I,,i,l. //,
f('A,in'iiy. 41S.
. _-. , the is^iir;r ;;;;,;: r "y^. I'-'H-y. «.ttiny out
.himsiiranec company accepted a notofonf I '•"""'"'■ ""e by another ■''"'"' •'""! "f a
i.,«m.,t u,sn,.ince on a veisel an h,.f r"" • T'"^ "''« ^''^t ; t , b v h '"^'■■',">' •' that the
,ta«.e.l the .ollowing clause : •' h ' ' " 1 '^'' I '''■'"*'^ ''"^''^ "Ho ve i„ : ,/''>^ ''"'^^'A- the defen-
, « to l,e pai.fi,, thirt v.h vs '^^^',^^^' ''r'^-"'- an,l rq, ,'"t ,'^'^!"' ^'^-^^ to i„te,pose,
tfes;thean,o„ntof the note tdvj ,/"!!": ^'^'f ^''''J'^ t-S hj' .;(:", = that tlle^es:
«.«, Knnpa.d, being first .^ductif' ^ iV'"''''"*^ '''''' t^'-'tliUC' V"^
t»l !'-« having occurred, it ^-as held tl,:) '^f '■^■^'"vering the ves.sel ),/,'' ''^■"'^'''^''^iroiis
'«'^"l,i'-'"" 'I'-ight in equity to set iV)^ ""^'""''^^''1 4'^'"ts in tint b / '■^•'^l-'^^'tive duly
.« rgainst the ,.ote. L,^, !' S»l " i T'^'^'T''^ "' "rifi " ,'S/';|''V ''t^ "ed into an
usur^ie. on a vessel provided «^'-i^l "^'Int o SH'S,;!;:'' ''"^f'!-- '''" W
, Mf' ";i''^'' ^^^■'^■■««- should ( 7"f to be ehose, V 'S^^T''^ " ar],it,4o,4
'« to five iier cent. The ' '''"'t'^ ",,,1 the otJ,,.,' ^ ''"'"'"' •'"'"tlicr bydofe,,.
^'"^ - ^twosoehose,^ £,,eSr' '';■•' *'^ third W
!•;"' <^her oxpenseJ^"^ J ";^- "'":"' «^'i'l"i'M.ev
tl'.;-.l'huutiff raise-I t " '• T ^'''''A *''• = that
-•^-~. ..... uaei .saue.l for i '""'"y to a].],oint, an I, (7 ' ''•■^'' ■■''^^•'.v.^'. been
hen *-,"";^^'-''' ''t Queens. | t'"'- ■■""1 ^vas willi " ' /' , '''^T''^' •■"' arldtr.v
hence sailed tor ,Stoekhohn, '^.^■- "f^vhieh the v^, . ,„"'''"."t,«"<-h question,
'I lier cargo and rot,„.„„.i . ' altnough the i.lai ,tl V ^""""'^ ^'•■'•' ""t>ee, and
'It'fen.l^iits ywa?''i,r't''^'^ted them, &o . yet
"theriiico,ieert,ithttT,,,"'""«''"">' '^^^'^i
;",f . to appoint a, arl i >. ."'^■'r'';'"'^''''-''ther:
t"Hy refused .and c ,? V""l"'"''.V« ^"-""g"
"•■ '■""">'• '■" apnoi' *""'■'' to refuse to ai.point
"t the other \}:^Z^T''''''^' "''^ that
wrongfii] refu.,al,^ I'?'. „ '>' '•^■"«^"' of such
good, and that an obiVeH- " !> '' ?" 'lemurrer,
^^■"sm.t shewn t-'hS':,'/'' *''" '•J^'''-'""'^"*
tSrV''r'--i-i-itisnece..,|l"^--
E "is ~ihS^ S f^i * ^^':i^'r f^ i^:p'S.^t-s
i^™ncewascaus;erK;;;;hSei^i!;*r-s
iiii'iui'tiall ^,„
pJimk'ssaiuountiiKi
.Jw.tunashoalat'Maian.^r'wVr''''
finimoaiatelv, .-uid ^vas t n f ' ''"' ""t '
N'o ra-eivcd", o in ,iiv .ullf 1 "^ Mipposed i
r e "'J1113, and the eoiitrn,-v.«-., . 1
J^-'Wed iiiiti after slio !>■. 1 ■ ^ V''' '
Pl« v.ith a cai-go, •^1 ^ < '''^' ■'^•"1^'' for 1
'"r"r'lers,aiidL.,v..^
ftlieinniiediate and necessn.-v . '''•'^'''"''''».
fto.eurredtiiei.,it^sl:^ ~^^^^^
liTOehtit'cd to recover. Jb. "'"
().
Pliiidiitii.
INTEREST OF MONEY,
11
that, there 1)eiii<,' no jilciv in abatement, tlio <lc-
claration waH good against the deinurrer. Cu/vin
J'roriiiruil 7i,x. Co., -JO V. I'. •-'!. See .S'. C. 27
7. Mixfcl/lllllilllX CdXCM,
Tlio jdaintilV eirecteil au insurance with defen-
dants on oertain wlieat to ]io carried in a schooner
from I'ort l>arlingtoii to Kingston, and from
thence to Montreal liy sudi lioats, liarges, or
vessels, as niif:ht he deemed necessary and pro-
per for tlie sat'e transixut tliereof. 'J"he seliooner
jiroceeded to i'ort Sichiey, alxiut three miles
below Kingston; the wheat was there transfer-
red to a barge, whicli retuined to Kingston in
order to complete her cargo, and while so return-
ing, the barge was stranded, and the wheat lost.
The plaintill' endeavoured to ])rove a custom in
support of the course taken by the schooner,
but the evidence only showed that certain for-
wanlers, having storehouses at Vort Sidney, had
been in the habit of doing as was done in this
case ; and it apjicared that no such (juestion as
the present hail ever been raised ;- Held, that
such evidence was wliolly insutHcicnt, and that
the policy Mas avoided by the cleviation in the
voyage. Fi.i/n r v. H'rx/crii Ax-^. Cti. 11 (i. H.2")").
I'laintitl's having insured a steamer for 1 1 oOO, re-
insure<l with defendants for t'oOO, under a policy
which provided that no suit should be maintained
thereon unless connneneed "within the term
of twelve months next after any loss or damage
shall occur." The steamer was injured in No-
vember, lSr)4, and the plaintifi's having paid the
amount claimed on tlic ilth of August, 18.""),
brought this action <in the 8tli of August, lSr)(),
to recover from defendants their jiroportion : —
Held, too late, foi' that the loss or damage refer-
red to in ill indants' p(dic3' was tlie injury to
the vessel, not the ])ayment by the plaintifi's.
Whether under the other construction the action
would have been in time, was a <juestion raised
but not decided. I'mriiirinl /lit. Cu. v. .Ktnii
Im. Co., \i\(i. B. IS").
Where a policy of insurance on a steand)oat,
against tire, provided that in the event of loss the
damage shouM be estimated "according to the
true and actual cash value of the said property at
the time the same shall hapiien :"— Held, that in
estinuiting loss the defendants were notentitlcd to
have taken into account a depression in the value
of steamers generally, caused by circumstances
■which might be temjMirary only. MrCunhj v.
ijuakfr Cili/ ins. Co., 18 Q. B. 130.
A p.irty, being a stranger to the property in
both a vessel and her cargo, cannot create an
insurable interest in the freight by .spontaneous-
ly advancing the amount of such freight to the
master or owner of the vessel. Orchard \. .Etna
lux. Co., 5 C. I'. 44").
Upon an action for insurance upon a vessel
under the usual interim receipt : — Hehl, that the
mortgagor of a non-registered vessel had not
such an interest as was saleable under a H. fa.,
the 23 see. of 8 Vict. c. 5, only declaring that
the registered owner, although he shall have
mortgaged the vessel, shall be considered to be
the owner thereof ; and that by a purchase under
a fi. fa. of the mortgagor's interest in a nou-
registered vessel, the legal estate did not pass.
The plaintiff, at the trial, claiming as owner
under a sale as above stated, and tin; Jii,l,,[..,
against him, applied, ami was all.iv,.,! tn
Ins interest as mortgagee. I'linn ,i niiitii'i
nonsuit upon thitt ground, helil, tli.it jc ,
nuitter in the discretion of tlie jui|-i; at ni^
to permit such a variance in the liuc nf i nwit'
the ilefendants not sliewin
I lllSflVfs <|t
Ked by the exercise of this iliscic timi, n n,.
was refused. Sni/clicn/ v. Eiiiilinlii,. r;
Co., 8C. I'. 41"). '
Jield, that the condition clause wiittiii i
the face of a marine policy of iiisiirauix'
prevail over the printed parts of tlir iinlicvv
are at variance with it. Mm.ili, ,- \- //„',,
Co., II C. P. 328. See .V. C. •_'(» 1 1, j;, i;,,;'
Held, that an insurance coni|.,uiy wlali 1
risk on a vessel were not entitlid tn ri"
from a harbour comi)aiiy in the iiaiiic nf tli
sureil moneys expendecl by tliciii in an utt
to raise the vessel. ,Sirir„ri/ y, l'i;/„i,i,i
of tin: Port Jiiiriri/I J/orlionr, 17 ('. 1'. ;,-^
A parol agreement, entereii iiitn ))y ••t|n,
authorized agents" of the eoiii|i;uiv, tn nt
arbitration the (|uestion of the ]vijn\ Ijaiijy
said company to bear .•iiiy portion ot the .•>
ses of raising and repairing a vcssil insinv
them and lost : — Held, not liiinlinj; niinii
company, as not being a eontr.ict relating; tf
purposes for which it was iucorpunituil. (;
v. I'roriiiriolliix. Co., 20 ( '. 1'. '.'(iy.
The policy insured against perils nf the la
rivers, &c., and declared that tlieu'nml.s wcrel
laden on board vessels classed not hclnw |i |,
thememorandum declared that the imliovi'iiv
goods from (ireat Britain tu .Mnntiual.iiMlHii
ton by standard steamers and sailin:; vussols.
declaration averreil in one count .ilnss in tlier
St. l-awreiiee ; and in another, tlnit at i^UflM
gooils were transferred to a sfanilanl linhtJ
be carried to Montreal, aecoi'diin; tn thet'ii;
i of navigation, in which they \\\-\v Inst.
j defendants pleaded that the Saini.iti.ui, w
carried the goods from Liver["«il, went oiil
(()uebec, 150 ndles from .Vbjntic d, wiiere
goods were transferred to anntlkr vessel, n
standard steamer or sailiiis,' visscl,
classed. The plaintitfs replied that tla- m
tiou from Quebec to Montival was ilan^'oruu
steamers like the Sarmatian, ami that fur
purpose of safely landing the gii(i(l.ss]ii[i[,i
Liverpool to Montreal it was the unstnm ;
such goods into local lighters at i^iniliuc;. nfw'
the vessel in which these gooils Hurt l<i-t
one. Held, on demurrer, plea gnnd.ir.il
tion bad, for it was admitted that the vos-J
not such as the policy reijuireil, and it wji
alleged that the goods could not he siikly
in such vessels from (||uebec to Mniitival. Jl
(-/ (//. V. Proriiiciol Ins. Cu., 2.'5 1'. 1'. .'is.'i.
McCollum V. Jitna lux. Co. , 20 (.'. T. ii% \
I
I.
INTEREST OF MONllV.
Mode ok Comitt.itio.n, ISSo.
II. Whex Allowed.
1. GencraUii, 1885.
2. At u'JuU Hate, 188(5.
^ From what Time and for whal i
1886.
,vc stated, aii'lthii ina.^i.ruVmgl
ietl, au'l wa.s jilluwf,\ t.. (,r„vftl
lortgagce. I'l'"" a nuitiMU iojl
it griiUU'l, 1h;U, that it wm J
;retiiiii of the ju.l,i;i:iit nifii-iuuP
j-ariiUK^'' ill tlic liiiu nf \TiiMi, jndl
i,',t B\\i.'wiiig thiiiiM'lvi's .Uiimi.|
isc i>f tUift (lisuntiuii, uui^n-niU
■nitrhnl V. K'l''''"'''' I-"" 1:'-^
^ ctmtlitioii claiisi' wvitti.-n m.
uavine Vi'li>-y ".' insiiiaiKi muj
iiriutcil i>arts(il' tlif\i(iliiy«iiioli
with it. M'":il"r\. U'w.. /,,
28. Sce.V. ('. -^M}. \\AK.
1 liiHuraiife ccnin.auy wliiilikjli
lel wore u<'t eutitUil tu ruoive
. couil>aiiy >'» '^'"' """"■' "' '''■* ''
t.xvi^i"^^''^ ^'y *'""' '" ^" '*"""'
esael. .Vc''''/"-.'/ v. /'/•■. sw/.i.t, ,i(
,,ri«/n/'"''"""'' '''■ ^'••''"^'
i;ement,enteveuiiituhy"tlK.:^
ents" of the ooiiil'iiiiy, to rekr'
e ..uestion of the legaUwlnluy ^
, to hear aiiv liovtum ct tlic .■xvel
au<l repairing a v-ss,! ,nsi,n,„l,
st — HeW, not hniaing uv-n tl
„otl.eiug:vt'"»t"^'t''>'lft'"^';.'»
which it was meori.nratt.l. '"V
' ln^.C».,-iy^V.V.-i^u.
Musureaagaiust vevi!<ottklake
,1.1 deelarea that tl«eynnasw.M.|
■d vessel:* ehxssea.K.tlu.lnwBl,
;ulum'leehue,lthatth,M.olu'Vo.v,
;ireatHritahitoNha,tn:al,u>aH,,.
\ara steamers a..asaihn-v.s.*
.verre.\inoueeouutaln.smtWn
le; and in another, th.t at 'm«l
■t;ansferreatoast|n^bu.lk«j
, Montreal, aeeorau>:it<i the ui-ti
>„ in whieh they ^vero Inst.
fea-le.! that the S:u->u.t,,u>, .1
^ooasfrom Livervnnl, we,, Mul
,,)' miles from Montr, il, wlw.
"tr::::krre,ltoanoth.rve.s.U
l+e'uuer or saihiii^ vi'ssl-1, .laa
1ue1.ec to Montreal was Aauncr.d
t lo Sarnuttian, an, tU.t .or
safely landing the g-nls. Hi-
Sntrealitwast.e.u.tn,aJ
iutoh-callightersat .Hu,^. J
• 1 ; .1. these ''oiiils WOK' i"5ii
Ul whicll tULse ,, J
llNTEKEST OF ^''^l'^-
3E OV COMITTATION, lsS5.
Ien- Ali-owf.p.
I.V/icm/'.'/, 1885.
188C.
1885
INTEREST OF MONEY.
188G
4. On Airin-il.A, 1887.
,1, (^(/ Hiiiiilx iir Dilimtnri'n, 188".
(1. Ciiihr WdU, 1888.
7, 0« other Cliiinm, 1889.
8. (^» Hills or Xdli'M — .Vcc Iiii,i,s op Ex-
CIIANIIK AND 1'K().MIS.S((KY NoTKH.
fl. /;// Hii'ildiiiij Sociilicti — .SVr Bi'ii.DiNd
Sociivrii'.s.
10. (Ill Jildillllllllx —Si'f .TciXiMENTS
11. On Mnrtijmii K— Sfv MoUTtiAUK.
li, Bctii'ceH F<iiiiitr.t — See PAKTNEKSHir.
13. (In Silks of LaudScf Sai.k ok Land.
III. I'l.KAliINIi AND PkACTICK, 1891.
IV. Misi r.i.i-.vNF.ors Cask.-*, 1891.
V. Li.uiii.irv OK l''.XKfUTOKM and Aminis-
rii.vi'oKS Foil — .Vcc ExEi'L'Toiis and
Ad.mini.stuatohs.
Yl. Li.viiii.iTV OK THrsTEKs kou— .SVc Tur.s-rs
AND TKI'STKHS.
IVll. U.sntiocs — Si'i' l.'.scKV.
1. .Mode ok t'oMITTATION.
TbeniL'tliiiil nsuall.y adoiiteil in making out an '
j,n,,,t liutvveeu ilehtor and creditor uj)on a loan |
( niiiiii'V - -vi/. , that of charging iirst tile inter- |
Btuiiiin til.-' whole deht for the whole period, as |
1)0 iKiyiiu'iit had heeii made, then allowing i
ti-rtst uiiiiii each payment from tlie time it was
_., an.l so deducting all the j.aynients and
itercst iriiai the whole deht and interest — is not j
le oinvct «iiy of arriving at the halaiiee. It I
I umch ill lavour of the dehtor, that where 1
lerc bus lieuii a long arrear of interest, and ;
ivmciits wade on account of the debt not i
ivtrins.' the interest ahiiie, the dehtor in a few
jrs, without making any payment in the mean
will make iiis creditor his dehtor to a very
it .iiiiiiunt. Mcdirijdr <■! at. v. tldtdin el id.,
ij, b. liTS.
Tlie liidpur mode of compntiug interest, in the
iiiiciit iwyments made specially on accoiuit
liniioii);il, is to eouipute it on the amount due
to tlio time of each payment, making rests,
iiidiiig tiic payments, and charging interest
tliub.iiaiice. Bi Itrti v. FaicavU, 15 C. P. iiW.
where various payments had been made
in a n»ti' p;iyahle with interest, not always
iiciit to cover the interest due at each time
laymint ; Held, that the usual mode of ad-
ig the interest to the principal, deducting the
iyment, and charging interest on the balance,
U uiit be adopted ; but that interest could
ly lie nimimted on the balance of principal
liuiug line at each payment. Barnnia v.
■iMl, 13 Q. B. 277.
!&planatiiiii as to the mode of computing iii-
it, fci.'., where under an execution part is
, ami a new writ issued for the balance.
mm).< V. (Vice e/ ((/., 1 P. K. 15. — 0. L.
iinb.—Draper.
made, oil sums awarded to be paid at a particu-
lar time. Tiiirdri/ y. Wyf/iis, l(i Q. 15. I'M.
Where jjrincipal anil interest is p'liil for an-
other, interest ma.y be recovered <in the wliolo
j)ayment. '/'Ac .Uiiiiiripaf <'<>iiii<-il m' tin- (Uiindii
III' Willinilloii V. Miiiiirijiiilihf uf tin 'rmrniliiji <if
)\'iiini>i, \n). n. Sl>.
Interest is in jiractice much iimr^ fre(|nentl.v
allowed by our juries than l'jiL,disli authority
would seem to warrant. Sji'iirr v. Ifictur, 24
Q. H. 277.
The court being left to ilei'ide as a .jury, al-
lowed interest to the pliiiitill's ou iikhu'v Irvied
and improperly withheld by the sheritl'. Michl'
el III. v. Ni-i/noli/i, 24 (^ i'..';{l):i.
2. At ir/iiil Hull-.
Held, following Howlaiid i\ .leiinings, II C.
P. 272, and Montgomeiy c. Iloiiciier, 14 (I. P. 4.'),
that the agreement l)etweiii the parties li.xes the
•ate of interest recoverable as damages, however
exorbitant that rate may be. The .ji'.ry having
perversely allowed only ten per cent piir annum,
although they foiuul that defendant had .signed
the note or instrument agreeing to pay live [ler
cent, a month, a new trial was granted without
costs : -Meld, also, th.at the anionnt a.^'reeil upon
was recoverable under under the common count
for interest and aeeoniit stated. Yninni it ul. v.
Fhiki; 15 ('. i'. :?(!().
Held, that the plaintill's, a banking in.-<tiliitioii,
having stipulated for and retained, in discount-
ing a note, interest at a larger rate tlian seven
per cent, were not entitled to avail tlnMiiselvea
of the lU'ovisions of tiieir act of ineorpiiratioli
(27 & 2S Vict. c. 85, s. 21), allowing them to
charge the same rate after mitiirity that they ha<l
charged on discounting the note, sup]>osing the
original charge to have been not mure than seven
per cent., which was held to l)e the meaning of
the act ; and that, therefore, tlie note bearing
no rate of interest on its face, they were not
entitled to more thin six per eeat. fidiii its ma-
turity, llmial C'aiuviinit linuk v. Slum', 21 C
P. 455.
Where a day is named for payment of a note,
with interest at a rate speeiiied, the claim for
j interest after that day is a claim for damages
j for breach of the contract, not as upon an im-
; plied contract, and is in the discretion of the
court or .jury. Where a note wis made, in Brit-
ish Columbia, payable 150 days after date, with
interest at two per cent, a month, the court,
under the circumstances stated in this case, al-
lowed only six per cent, after mituritj'. Dulhij
V. Hiiiiipliri'!/, 37 Q. B. 514.
Where it appeared that an agent had received
large sums of money for his principal, and had
used it for many years in his ow'ii business, in-
stead of remitting it, as he might and should
have done, to his principal, he was charged with
six per cent, interest and annual rests. Land-
man v. CrouLf, 4 Cliy. 353.
II. When Allowed.
1. Generally,
Interest is usually allowed, without demand
3. From what Time ami for what Period.
Where defendant gave a confession on the 13tli
of May, 185(5, contaiiiiiig an agreement that
judgment might be entered at once, but no exe-
■:1- ■ 'rVr\
1887
INTEREST OF MONEY.
188
1 ,'
cutiim to iasuc until (U'f.iiilt in ii.iyiiiciit of ii
Kiim iKiiiicil on tln! Ist of .1 line then noxt, " witli
intiTi'st thereon from this day till ]i!iiil," unci
jiiilyiiieiit WHS not entereil till •JHtli April, IS." ;
• Ifehl. that the iihiiiitill'M were entitled to iii-
tercHt from the ilate of the uonnovit, not from
the entry of jud^jmeiit only. Unmndij tl ill. v.
(.'(in-d/lir,:^, -j;! (j. 15. '-'I.
< )ii a |iiuelKiw(^ of hand the vendee gave his
iiromis-iory iiot(! [layalile in a ye.ir witli int(^rest,
tor [lart of the jiurehase money. The veii<lor
died ln'foi'e the note lu'eaiiu' due, and adminis-
tration w.ii not taken out for eleven years. In
a suit eoinm.'ii e I a year afterwards by the
administrator, it was Held, tlitit, aa thi^ eaiise of
action dill not .arise until there was some [iiM'son
to sue, interi'-it was reeoveralile for the whole
])irioil from the date of the note. ,S/' niisiin v.
Il„'!l,,; !,-> L'liy. .■>70.
Sineo the passiii'' of tiie Adiniuistration of
.histiee Act, (.S*! \ iet. c. .S, ().,):ind to avoiil
circuity of action, the court will allow interest
to a defendant f<n' more than six years in a suit
to rc<leein. Jfiirri ii v. Ilnnlhiini, "22 t'hy. Dli.
Whcro tlic answer of a defendant omitted to
set up a claim to interest for a period exceeding
eight years, the court, on an api)eal from the
master, oltV'reil, if it was necessary that .such a
claim should he set u)), to allow the dcfeiuhvnt
then to do .so, as all the facts were before the
court. III.
wuro assessed for the second
•I-. "/( .1 iriiri/.-i.
When an award lixe.i no day for the payment
of money, a party suing for the sum awarded is
not as a iuatti.'r of right entitled to interest.
n,'i,llr,/ V. II', </, 4 Q. Ii. i>8.
Tn an action on an award it appeared that the
]il lintilt' in Anril g ive in a statement of his claim,
with interest up to that time, at twelve per
cent., tile u-iual ratu allowed in the dealings be-
tween th:; pirdcs. Tiuu was allowed defendant
to prove his dofeieJe ; and in miking their award
on thj (Ith October, the arbitrators added inter-
est at the siini" r.ite up to the 1st of .Seittember,
on the sum e! viuud in Ai)ril for prineii)il and
interest :— Held, that they had power to do this,
and to awar.l iiterest on the amount until paid.
Sli'W:irt v. ll'c'/.Vc;-, I'O g. B. 4{>'J.
An awMV.l fcnind that on 1st September, 18()0,
defendant was iiidel)ted to pl.aintifF in tH,24!),
and ordered him to pay it accordingly, with
interest h ili ye irly until p liil : -(ilinere, as to the
intention and ell'eet of this direction. //;.
5. <hi Biiiul-i
Dchoilnrcs.
A plaiutilt' on a boml of indemnity cannot re-
cover interest in the nature of damages beyond
the amount of the penalty. McMahon v. Jinjcr-
»oll, C O. S. ;J01.
Sci. fa. onabondconditioneil to pay $2,782.08,
in tive equal annual instalments, with interest
on the wliole amount from time to time remain-
ing due, on the 1st June in each year. The de-
claration recited th.at the first instalment and
interest, due on the Ist June, 18()2, had been
paid : that on 30th November, 1834, damages
I , '''•"' "'iiM iii,h
nieiits, and interest on the uiip;iiil iirjii ;
,^2,22(1, ui. to 1st .Fune, ISIil, win, 1, wor, ,'"
on l.'.th April, I8<m : that there w;is iiftirw ',
j a further breach by iioii payment of tji,. f,,,,"^!
j inst.ihnent of princiinl on the 1st .lim,. JJ.
with interest on the M.iid .'<2,22(i, ivu\n |«t\|. ''
18(14, to l.'>tli April, l!S(i.">, and interest fr.ini ."'j
I.'ith .\pril, on the principal reuiiiiiiin^, uiiirii
on that day, to Ist .lune, ISCi.'i, Tli(/|,|:ii|' '
idaiiiieil execution for the damages t'lln-^s^., ',
on this further breach : Held, thit iiitirest*
the .>#2,22() could not be recovered ; f,,|. tl^. .',|,|||
tills on their sci. fa. for the secoiid ;ui(| tliiH ji
HtalmeiitM should have assessc:d all liaMm^.t., i,
iioii-p.iynieiit of hucIi inst diiicuts up tn tlh'ii.it
of thiit sci. fa., .'lOth -Novembei', |si;4, ;,|,j,
would include interest ; and their exioutinii fi
studi damages W(Uild bear interest alsd, //,„„/,.
'/ III. V. Ihirttiii (7 ((/., 2.") (,). 11. !).
.Ai.'tion on bond payable by ilist iliiiciit<. .Iii,],
ment was eiiteriMl for the penalty. I'niiwilinu
were had from tiling to time by sci. fi. ;— Hi]ii
that defendants were bound to pay tlio cxinus
of levying the sum due, but that' tiic ]il;iiiiti|i
could recover only the (len dty, .■iml mij^ln m,
charge interest on the penalty, or aiiinunts fe
niaining clue thereon, ,S'. ('., 4 1'. Ii. !l,_|' e
-Morrison.
The plaintiirs sued for interest on twd l,„ii,lj
made by defendants on tiie 27th .lamiiuv, IVij
for the i)aymeiit to the plaintiirs, cir lirikr.fj]
the principal money named on tlie Ist cif Xinvm.
ber, 18."),'), at the agency of tin; I'uiki.f Yum
Canada ill Hamilton, together with iuturusttluT*
on. Both counts alleged that alt!iH!i:.'li ,y,;5J
dants paid the principal on the 2!)iii "!' .I,\iii!iryi
KSlil, with interest up to the 1st .V.ivcliiln;;
18.").'), yet they had not jiaid any iiitcrtst altc
that day,: -lEeld, tint such inteivst w.isarovct
able ; but that it was a good defeliCL' tli:it t!iei
were ready to pay the principal luul iiituiv.-i
the clay and at the i)laee, and had :i!v,;ivs i
ready and willing to p.iy, but tint i\\^ U:
were not present'^d then or at any tiiiu, Attlii
trial itw.is ])roved thatuhen the hniiii.-i WMm
and up to July, I8.')7, clefendaiits hid fiimls l
the agency out of which they v>-(pu1i1 liiw lnj
paid if presented. Held, tint the jiIimj w
])roved: that clefendants were not liilili;ti|ii
interest after the bonds matured, Mrlhm.i'il
(il. V. Oreat W'l-ilcnt Ji'ailiriij Co., 21 (^i. 11.:,':
G. UiiiUr Will.-'.
A testator becjueathed his per.<iiii:il esutf (
his executrix and executors, in trii.st fnrtlic
poses of his will, and he gave to them, in I
([Uality of trustees, for the use of his snii I
life, and after his death for the use nt his id
children or child, if there should liu liiit nil
"the sum of .i;i,500, due to me hy ('., .mil
cured by a certain mortgage," &o. : -IltU, th|
the legatee was entitled to chiiiu ninic than I
years' arrears of interest, the trust lieiii^'Mprel
and the .Statute of Limitations tliLM-ffdivimti
plying to the case. Lor'wgx. Larin;!, h'l'hj.lq
AVhere a testator dii-ected his rc.il ami \ietsm
estate to be converted into luouey : thepma'd
to be invested ; such investments tiil)t'oimtiii^
until the whole of his property slinuhl hen
ized ; ami from ami out of the suuio, wheal
i.l
lu rtocimil ivii'l tliir.l iiHtJ.
\UW, 1W''*> ^^ll''''' W'T'- l>ili'l I
: tliivt t\ii'Vf \vii> iittcrwiinls
ii<>u-l>!V.V""'"'' "' *'"■ ("iirtli
,i,,vl on" tli<' l^t •'mil', isCi, I
J Hiiiil !*-.--''• "'"'" I't'lim.',
ISir), ami inti'ii'st from s.iii I
' iiriui'ilial riiiiiiiuiiij; iiini;ii.l I
it .hint;, li^'''*' ''*>'■ I'limtiifjl
for till! (l:ini:lj;''* t'iliuii,.sr.,nll
in'h : HcM tli>t int.ri'-t nn|
i,t Ui; rci;ovon-'il : fm' tliu (lUm.
V. for tho sofii.pl ami tliiril in-
li'avii iiHHi'HSi;il all ilauianfs j.if I
irh instiluii'iil^ up tntliijiUtdl
"iOtU Ni'Vi.'inlii^r, ISiU, wliirhl
[•n-Ht ; ami tlu:ii' wwaitimi l..r|
iltl bear iiiti:n:Ht alsn. HmMA
1 „7., -2.5 »i. H. it.
loayalili'liviiistilniHit^. .livl;
I for til'' iK'iialty. I'n.avilui.ji
i„iu to tim- l.y iioi. »';• ■•-
were l)(>uml to \iay thu ixihii.*«|
<uiu <l'i''. ^'"'' ^'"''- "" l'''"'""f"|
ilv tht! i.fu ally, ami iiui;lit imM
.."th. i-";aty,--;'';;''t.-;::l
.ercoii. -S. '., -t '• ''• ■'•-'■ '-.I
sueiUor iuti'ivst uuUvnUls,
lauts on the •JTth .laimiuy hoo,
„t to tiK- vi-""V*^'; '"' ."v '
uvuaiuc.loiitli.- IstulNiivoi
1 1^^*9
1 Rjli"'
INTKllKHT OF MONKY,
1S90
il (iiiil invoHtfil ill till' wliolc, ainl tliuH ' Held, that such iiituriiHt WiW rouovcralilo. Tin
lib'iK' f"'" ilivisioii, mill not licforc, to \»iy ' ('i)r/iiiriit!iiii iif tlii' Citiinhi nf Fnnil
u re
^■^'»t.
If^'ai ii'H : lli'lil, tiiat until tlio wliolo
iliznl tlit^ l(';,'atci's wi'ro not I'lititlcd to
Siii'itli V. Siiilu
17 I'll
mi7
The ni
It' lis to tlu' allowaiu'i; of intercut from
l«i' y«'r »
ftt'r tlic ilt-'iUli of a tt:.stator, iIoi'h not
111'
Jv, III
tlx
ilwt'iici) of I'xini'SH liirut'tioiiM,
.litre tlii; lii'i|iit'Mt in liy way of ai)|ioiiitiiiunt «n
lirastttk'liiint. />" il( '< v. (I'l-d/niiii, '.'() ( 'liy. 'i'liS.
.\ testatrix, v
ho, uiiihr licr
iiiarriagti bu
ttle-
L„t, liiiil til'' power of appointnu'iit ovor e'i;rtaiii
levs iiivi'-'ti'il oil niort^'aj,'!.', aiipointe'tl
'fliL'ri'i'f to lii'r two ilauyhtcrs, an
('iiriioni/iiiii iiftlii' ("iljiiif KiiiiiiiiiK, 'XI y). II. ;iJS.
Wliuri! tho OHtiitc of a li'inkviiiit in HiiHii'itnt;
to pay in full, ami a MiirpluH niiiaiii.t, iiiti'i'i'Mt
must ho allowi'il oil all ili'hts provcil uinli'r tlio
i'onimis,sion wlu'ii; tlic ilcht, hy express (iiiitraefc
or liy statute hears interest, or where a emitraet
to ]i.'iy it is to lie iiiiplieil ; hut on no other ilihts
will interest ho allowed. I\c /.iiiiijutiijl'i', LM'iiy.
1(1.-..
.\n executor is entitled to interest
ion
:>e agouey
.^, of the r.uik.ii I'l'iia
lilton. to-other with iiitu'resttlKrH
„ts ■vllo"e,l that althurriU ileK.'D
tho 1st NilVCllllwlj
^niiioi\>al on
torost up
to
had not p:U'l '"'>• ;"t''''"' »;"
,ld, th'vt HUc"
it was a j
;h interest was vecivo:
111 (lefelir
tliiit I'jq
pay tho iiruu'ii:
ttho I
laco, au'
al auil iutevist i
1 liail always Ir
ling to p
Lllt'jd thou
>.Vi
l)Ut tint tiie linii
at aiiv tiui ;
AttU
id that w
,.,, 18.">7, •I'if';'"
It of wluol\ th'jy
litod.
llofomhints won
hen tho houils felMttI
laiits hail fmiiU I
lul.l luve
Held, that the 1>1'
,i':w well
bio houds mat'.ir
ili-rn
Jlailir III O
t liilile t.ip^
•jiu.i'i.-'-a
vthod his V
\ exooutors, in
,-ill, and ho giU'
0. t:
Bioiiue:
10 11
atoes, foi- th« "'^^
. his death forth
Ihild, if tl>^^^'^
1 £1,500, duo b
Irtain mortgage, «>
ititlod to olaim
..[■selial estate I
trust fur tiu'liij
to till-Ill.
liis s
ol
.nil I
Su ot lll^ »ll|
houiii lie '"It ;
,o nio
hy f.
lis ei
more
i)f interest.
the trust lieni.^exii
Ite of Limitation
lase. Loi-iiig "<■
tlieretori
Lunn;],
L'rt.iin
iih
'd hy him out of his own means
on inonevH
am
1 until liioporly exiiemled in the iiianagi'meiit of tli
■viiR'iit, to pay
(niiirtg.i;^
til.
Heir
tl
le iiiteie.-it seeilled hy I estate.
ki,<reiior
t, tiiat ke had
ippeal from tiie Mas-
iroiierlv
nlitlie Slims so app'
inted fl
allr
tl
iiiter-
.1/.'
Ithll,
I
•jciiv. .vu:
nnirohant agreed in writii
,il\
mm tiie ili'a
th of
nioniiy for the imrpose of getting out timlier, tii
torwarded to h
,tatiix, and not from one year after the jidvanoes he was to 1
it <>. fu
lie ; f.
ihieh
fti
Mth. /''
-UeU. tl|
tlilll I
imt \
;ciiv.'
Itator I
lirectedhisrealn"'
Iniv
erted into money
such iuvostme
utstolii.
tlie VI'":
lie of
his property
Im aiw
pn
il out I
slioulil '
£ the s;iuwi
(hi (Ulnv C/ii!iiln.
lid eertaiii ooinmissioiis.
'I"he timhor was duly lorwarded to him in the
autiinin ; hut, prices heiiig low, he, with the as-
sent of the other party, lu'M (he tiniher over
till tic following spring, and eiaiiiied interest on
iHiW.tliatthetownshipof Waterloo was liahle I his advanoos from the 1st l)eeenilii'r until tho
fclcrtiie statute 14 it I.") \'iet. e. 5, for its share [ s.'ilo of the tiniher, the ease not heiiig pio\ideil
fthc il'hts iif the (luoliih and Diind.'is road fcu' hy the agreement. It ap]iean"l that it had
fri'il liy the county of \V,'itt'rloo, (of which heeii eiistoinary in tlui trade to charge interest
inueil one tnwiisliip,) while that county was ! in such cases, where there was not any writing;
;tiltiitlie oiiiinty of Woliingtoii and <lrey ; ' hut there was no evidence of s'.ieli ''Ustoni heinj^
feiritlistan'liii.i;, too, that an arhitration took known to the ]daintill'; Held, that interest
ktwceii tliHsc counties u[)on their siip.ara- I could not he cliargod. Mowat, \'. ('., diss.
Llivwliieli it was detorniiiied that " Welli
uM assiimo the liahilitv of the h
fcto'illitli'S
fcr!,\;iiei
Meld, also, tli.it interest
till
I ik'lit was reeover.ihic, it lioing not
fcttit ilimii III
terest, hut interest
111 money
|,iir to he paid, for the dofeiidaiit.s. 'J'/ii
niniiiU'iiniic'il iif till' Cmnilii <;/' WiUiiiiitiin v.
t}hiiiii'''i"i!ilil iif tin: Tiiirii'i/iip of Wiitirlixi,
;.P.3.'iS.
JJ, //irfrlv. Siipjili; 14 Chy. 4-_'l ; 13 (.'hy. ()48.
} Interest held to he .allowahlo to a creditor on
I a ]preferred deht consisting of dr.ilts iuid [ironiis-
' sory notes from the date until paid, ;inil iicinling
i suit. Cilil limik V. M(iiil<iiii, .'i Chy. < 'liamli.
:}H4. - Boyd, Mii^tir.
The assignee of a person u]ioii whose lil'e a,
policy of insurance has heeii eit'ootod is not en-
titled to claim interest on the amount <if tho
I policy until ho is in a position to give to the as-
i siirers a full legal (lis.'liargo nimn payment of
I the claim. Toroiiti) Surhn/s' llinilc v. Ciuiaila
50!). '
ItM, that a jiLiiiitiH' may claim interest on a
unillor iiiiiiiey rent made payahle hy a cove-
BCiiiitaineil ill tiie lease oxecutod hy del'eii-
But, (^la'i-o, as to his right to' recover i j-^-,, ^^^.^ f. 14 (., ,
it nil each iii.stalment of rent as it tails • > j
I nithont sliowing a iircvious demand or No interest is allowahlo with respect to arreara
fct Mi'iiiiig til ilofcndaut of an intention to I of an annuity, (lulf/sniil/i v. (luldaiiiilli, 17 < 'hy.
nil intei'eot ill the event of iion-paymont. -IS,
Ihiicase ,aii unler was made for the allowance
■est from tlie eoiiimciicement of the suit.
Ik, the master ought not to allow interest
|(D!iiiit!itioii in such a case without a judge's
Itiithat etl'oct. Cniiik'* v. Diction, 1 L. ,1.
[.•2II.-C. L Chamh.— A. Wilson.
kid, affirming the order in the last case, that
kacuiiii of cuveiiant for rent, an order hy a
Silireetiiig the master to allow the plaintiff'
St (111 tho amiiunt claimed on the writ of
ms, not specially indorsed, from the date
init, w:is properly made, although no
!tw,i8 claimed iu the declaration. ,S. C. 15
intilTs sued (lefondants under 18 Vict. c.
"lies. U.C. c. .31, ss. 155, 157, for the
rtioii of jury expenses payahle hy defen-
mi 1S55 to IStii), iuchisive. As to 1867
S, clefeiuliints in 1868, levied the sum
""'", but apiilied it to other purjioses.
Uliey levied the sums due for 1867 and
"illiMilit ill Septemher, 1869, but with-
kreat, which the plaintiflfs demanded :—
119
^^'here the Court of Appeal orders payment of
money, and says nothing as to any antcc'odent
interest thereon, such interest cannot afterwards
he added hy the Court of ( 'hanecry ; at all
events, in cases in which though interest is
usually given, it was not a matter of strict legal
right hut of discretion. Jiu.r v. Pnii'iniinl Ins.
Co., 19 Chy. 48.
Where a principal was found indehtod to his
agent, 011 the taking of accounts in this court,
the court in exercise of its discretion ;vllowed
interest on the amount from the time of tiling
the declaration (which contained a count for in-
terest) in an action at law brought by the agent
and to restrain which the bill in this court was
Hleil. Mowat, V. C, diss, llidlifij v. Sexton,
19 Chy. 146.
Creditors who had filed bills to enforce their
claims having, hy order made under an adminis-
tration decree, been restrained from proceeding
with their own suits, are directed to prove under
the administration decree. It was held that
they were entitled to six years' arrears of inter-
t'Ht c'iiiii|iutt'il liiit'k friiin tin' (romnu'iici'iiiiMit of
tliL'ir own MiiitM. A/ii/riiv. Miyrrn, l"J Cliy. 18.").
Mf. l'l.K\r'!N(l AMI PltAn'H'K.
Ill an ai'tiiiii on ii iiicnliitiit'H ik('(;iiiiiit, wliuru
tlif writ wiiw siHiiiilly iiihIiiihimI, clailiiliiK intin-
UHt, iiiiil cIcI'diMlant iliil nut a|i|iour : ilt'lil, tliat
luN iiiin-ii|i|j('anini.'(: wiin iin niliiiiHHinn Icir the
cliargd iif inti'n^ht. Sfiiiiiliini I't nl, v. 'I'lirnnin
it ill., 4 I,. .1. '.':<:». C. I,, ciuim).. HmnH.
A claim fur intrrcttt on n iluniaiiil for H]pt!('itic
gooilM anil I'lialtt Ih hoIiI, i'iiiIoi'huiI on a writ of
HUiiiiiioiiH in ^'ooil, ami caiiiiot lit) iliH|iut<.'il altur
jml^'imnt ni;;m.'il in ili^l'aiilt of ajipiNiramc, Imt if
claim for inti'icHt is i'IkIuiniiI, iiionlorto ^ain an
iniiPidpiT aihantaj^c and jmlnnu'iit lie si;.{iu'cl for [
a larpr amount than a iilaintitf in really mtitli'il
to, Hiiili iiic|j,'mciit w ill In; ML't a«i(U!. Mmnii v.
</riiml fniiih It. 11'. ('„., (i L. ,). (I'J. I'. L. i
Chainli. I)i,'i|i('i'.
Sfnililf, tlici I'liclorscmiiit for intercut on iv
Slicciiilly clidorMcd writ, i« in general a matter of |
claim only. If it lie correi;t, judgment gcie.s '
rightly for it witiioiit any eiuiuiry where the
iilaiiitill claim.s it and dcfcinlalit does not disimte
v.//.(/YM, 10L..I. 'IVX I'
it. .1/i'A'i ir.ii 1 1 til.
C- A. Wilson.
A writ of NMiiimonx wan .sjiecially einlorsed for
interest on the lialanee of an aeooiint, ami for
protest charges on an iiiiaceepted draft :- Ihdd,
that the eiiilorscnieiit was right as to the inter-
est, Imt Mot as to [irotest charges. Hank of
Montreal r. ll.irrison, 4 1*. \l. Xi\, exjilained.
NiiK-liilrv. (:l,l-</n,/m, ") I'. It. 270. I'. J.. Chamli.
— I>alt<iii, ('. ('. ,(■ /'.
Held, that an aition of delit is not maintain
nMe for interest only on debentures, the principal
not iieing due. /.i/dtl v. 'I'lii Miii/or, ilc., af tin-
I'ih/ III' l.iiiiiliiii, hc. I". ;ti).").
A connt for the interest for the forlioarance of
money, at the late of thirty per cent, [ler an-
lunn :-- Held, good as a eoininoii count, for that
the rate stated was wholly unimportant, us
■would be tin; price of goods sold if alleged,
IHmkliy V, ImhIoii, i'l (^ IJ. 34S.
IV. Ml.sCI'.M.A.NF.OUS C'A.SE.S.
Where the defendant is making p,aymeiit.< to
the plaintitl' on account of a loan, the plaintill'
may insist, in the aliseiice of any agreement to
the contrary, that the payments lie aiiplied in
the lirst place to keep down the interest. Mc-
Crii/iir if III. V. (•'iiiiliii it III., 4 Q. B. 378.
I'laintitt' sued defendant <as maker .and A. as
endorser of two notes, adding ii count for inter-
est, and at the trial to support this connt he
ottered in evidence a written undertaking, signed
by defendant, and a similar one by A., to allow
him interest at the rate of thirty per cent, until
payment, in consideratimi of the plaintitt' allow-
ing three months' time. The learned judge rule<l
that the acti<in lieing joint, evidence of a separate
liability ag.ainst either defendant could not be
received, and the pLiintiff tlieu took a verdict
against both defendants for the amount of the
notes and interest at six per cent. After judg-
ment had been entered upon this, and satisfied,
he sued defendant on his undertaking to recover
twenty-four per cent., the balance of interest
agri'iMl to bii jiaid by it ; Held, f|,;it n^ |
niciit ri'covi'icd was a liar to any I'uitli.t i
for interest upon the same notcN IM-
/V,, 'Mi). 11. :>M. ■ '*":
'l"o save interest by an appii.|iii;it||||, (»
^lurchase money, the nioiu'y slioii|.| |„, „,. '
from the purchiiscr's gcncnd Imiik iiivhuik
notice of the appropriation must ln'uivnit
vciiilor. Ilniit \\ nil rii lln'iliniii (,, .. ,
1.1 ( hy. .<.».).
IN'TKUNATIo.NAI, l..\\V,
I. K.\rii\iirrioN -.SVr KxTii\i,iii„v
On tiic determination of tll^ civil w.n' ;,,
riiited .states, the govcniuicut at WwAm,
liecaiiic entitled to tin; jiiopcrty tin ivtofnre'
longing to the ( 'onfedcratc ( iovc, niiiiMit. I',
SlilU.H iij' Surth Aiinriiil v. Ilnilil, l."i( hy |'1«
Held, that a foreign legishitun uM iiiiili^
law creating a lien on legal estiit.' in (uii;!,!,!,,!
coiisei|iiciitly that any contract loun.li'l hi, jl
a coiisiilcr.ition was void ai> initio. lUinwei
hull 1 11.1. Cii. V. W'l, si iiiiiii, .S {). U. .J1S7.
lA;ttcrs rogatory such as arc iiroviilnj fo,
an act of congress of the I'nitcd ,st;itc,s,i.,i,<||'j|
from any foreign court will lie i.ssiin! l,v (
I'oui't 111 re, although in the present «t:iti;Hi'a
law no reciprocal ac'commod;itiiiM cm lualinrj
here to suitors in the I'liited St.ites. /
.SIiiIliv. OriiiMiii, •_» Chy. Chanili. I7(|. Tay
Sir n III r I/.
In letters rogatory so issued In iv tiii' in
otter to render similar service wlien ru.|ii:rc,
necessarily omitted. /I).
.Such letters need not iicccssarilv ln' ii
name of the sovereign, but were i^siail ;i, fi
the judge of the ( 'oiirt <if ( liaiicery. /'.
FI.
III.
IV.
V.
VI,
VIL
VIII.
IX,
ixtkijim,i:ai)i;i;.
AVllKN Itl'.I.IKP, (illAMI.Ii.
1. To l/ir Sill- riff, ISD.S.
2. Ill Otlin- CV/.sr.sHS!l4.
i'HACTK'K.
1. Thill' fur A])i/liiiiiii I'lif lipl'i-.U^
2. Aiiiiiiiliiiii/.'siii, jyiKl.
■3. Hi'sriiiiliiiij OriliT, I,S!I7.
4. Other Cn-icK, 1898.
FoH.M AND CON.STKIITION OK IvH:,
KVIUKNCK, 189'J,
Action n\ ('i.aimant AiiAiV'^T K^
TION CUKIUTOU Koli .SkIZII!):,
CV>sT.s, 190.S.
AcTtoN ON Bond, IflOk
Ml.St'EI.LANEOr.-< O.VSKS, IflOJ.
DlUE("riN(! IsSfE ON' Al'IM.H ATiol
A'n'Acii Debts— ,S«(' ArrAHiv^
DEirrs.
Is DiVI.SION CoiitTS -.?('. I'll"!
Courts.
,y if. Urll, tll.lt tin: 111,1^.
rt iv Icir ti> miy I'urtli.T A\m\
till) Mivmo uiitcK. J/i-Kiii) V.
»,y nil iiiil>r"iiri;it'u.u nl tl,«l
[„. iiiciii''y «l|""';' '" '"'V'lrati.li
Wi
INTEIU'LHADKR.
1894
x'lirral )>:iiiU i\ niiit,
,>,riiiti<>ii iiiMxt II
t 111' HIVIMI tu tlid
'■'.V. .; J
INATIONAI. l.WV
„i„,Ui„u.if tl.^ rivilvurmtH,
tlu' novi'ViiiMi'iit at W iwliiii^'t^
to Uii' i.v.iiMity thnvtufuR. 1,^
,1 „„■,•;.•,( V. /;n.v'', i.iitiy.i.K
foruii?i» IfnUliiturr .m.uI.I i.aUn
lion .mU'«al.:st;a.' Ill (;>i«a;i,d
|,aliii>V''""l™'^ !'"""'?'' '""1
, wan voi.l ul. iiiitin. '- Vl
. HV.s/m.n<, S g. \'.. IS.. >
•torvsiu'l' 'i« '"''• l"'"^'''^''"'"'
,.ii;„ .■..Ul-t Nvill >■>• l^^»^"> I'V.
tlum.^li in th>. i..v-ut sut. .1
,,,.;l,UHMiniIll'"latlnl|raulu,.Al|.,
:;; i„ tl>o rnitM St.t,.. f
IMOd,
•1 CUy- *
'liamli. IT':. TaylJ
el- similar servicoNvU.iuv.iu.r.l
ittL-l. /'-• ., ,
t lU'i'CMsanly w \\\ \
nil
I'V^ IH't'l
A 11' it
Imt wi'i'i' i-*^"*-"
rtoVlMflgll
lasf
WVA.W.V, llHAMV.Ii.
■lllK..
Im .vN-n CoNsnurnoN ok
Oplii', ISl
.-IE,
lis, 1903.
inok
-r \'i
J Deivi's.
(division
Courts-
Co niTS-S«LU^
|..K.X.NKOeS C.VSKS, 100,1.
v .\ I'M II It'l
h"""^iS^-'A--i
I, WllKN 1!kI,II.K (ill.lNTKK.
I, To III,' Shirlli:
rw.r ,v, ^. ii, '>■ .• •/•'' >''■'•'. '•• /*. ". .''. o.j
Where i>" ikilvumo oliiiiii \* iiiuihi to jiroiiorty
|jjl,,,l ill fXllMltillll, IVJilllKtl will llilH'ct nil MNIU',
j.„ till) I'^'i'iti"" "''■'''lit'"'^ K'^''' tlu) Mlu'iitl a
,jltj,l|.|lt illilrlllllity. MrKilflil ilt.\. MrKinj,
l| |„ CIllMlll. I<>'>. ItilllillHllll.
The (.riiwii iMimot lio a claiiiiaiit within tlio
I ,iiiM (if tlio Mtatiitij autlniii/.iii>{ tlio Mct.titi-
Ijifiitiil iliiiiii^ "' K '** tilii'i' iiiiilfr till) oxi'iMi- I
L„„|,j iiitti|ili'ailoi'. Mfdii V. /{itiiiiH, 3 I,. ,1,
Jul V. I<. ) li<^'»'*' KoliiiiNim. I
\ thi'iitV ivviiiiiit li;iV(' an intcrplcuilor until
i(hM »i.'iwl til'' K '•"'• '•'"■'''" V. 'J'lnir, •_' (,>. I
i !"• I
yurHlicP' 111' liii" alliiwcci any larK*' pcirtidn '
dill,. ifiiiiilH f" '»' taken lint of iiis |Mis.si.«Hi(iii.
llli«;.(' V. .I/'"'////// 1/ III., I I'. Ii, ;«(), -('. h,
l(taib.-Kiil>iasi>n.
IVlViiiliiiit. .'iM xlu'rill", liavinn 'moI/uiI uiiili'r a
■nt ill tilt' I'liiiiity riiiirt ('(M't.'iiii ^'onils, wliifli
itniiiiiiii'il liy till' |ilaiiitili', mi tlio 4tli Maruli
nil tn till.' juiIku ot till! I'liiiiity tjcitii't fill' an
|t,n,|i.;ii|ci'. Tliu [ilaintiir ciiimiuMn'cil tliii ao-
l* iif tlv.'*li:i.iH, to wliii'li ilt't'i I, ' lit pioacloil
mx the iiiti'i'lilfaili-'i' Miiiiiiiiiiii.-* • i.s iii'iidiiig,
y i.>5iie wii.s jiiiiu'il ill .\|iiil, liiit I M caHi) wan
iiilt;i reiiiiiin't at the .siiriiij,' u.s.si/u.i. On tliu
.lune tliu jmlj^i' I'f tlio ( 'iiiinty ('miit inadu '
liirilir liiniiiK tlnMlaiinant, ami in Si'jttonilior
ililiiiil;iiit apiiliuil for Icavo to plead tliat i
l,r ill lull' of tliiw .ii'tiiin. 'I'iiii application was
K'W.I. //"W''" V. Mn,«lh, •_> i'. |{. -.'If). --(". L. i
fcliiili. Hillii.'s. I
|Tli( giNiiln seized liy tlit^ shi'iilV were claimed
Vk (jiiiiiilian in in.><olveni'y of the estate of
.IcliiuUiit, against wiiieli defendant a writ |
|ltt,U'hliieiit iiiidel' the Insolvent Act had also i
t(i tile .same siieiifl' : Held, that tinder I
IViit. e. lit, s. ■_', tiio sheritl' was entitled to
Wtimi, mill an issue was directed, liiini^
ly../,'.;L. .1. N. S. 189. ~C. L. Clmmh.-A.
likiii.
lilieritl' lilts a right to interpleader where the
bcwls 111" tile sale of gooil..? under execution
Ijjiiucilliy tlie iitlicial assignee in Insolvency
Hk juilgineiit deUtcir. Jiriiiid v. Jiickic, 4 1'.
-I.', h. Cliainl).— A. Wilson.
1 jmlge has authority by interi)lca<ler order
Kstniiii ;iii aetidii against the execution eredi-
I as well lis against the sheriff. Jiiijl'tilo ,(■
\(!liifiiii H.Cii. V. lli'iiimiiKjiriiij, '2'2 Q. B. 5()2.
ui'lilieatiiiu for a rule nisi to rescind two
Itailer iinleis graiitcil to the sheriff, or to
Iveainevimia rule nisi for the same purpose
hail been allowed to lapse. The court,
|ir the faet.s stated in the case, refused to
litre, liiililiiig, 1 . That the sheriff was en-
iltoiiiteiiileail tile second time, the claimant
lngalk'gcil a (liffeient title from that on which
suniniims was obtained, clainiiug first
itutr ami next as sole owner. 2. That the
111 iirder, restraining an action against the
^iliiiii crwliters and their attorneys, was
fell anil proper ; and the loss of the
"t therefore, in consequence of which the
timt iipplieiitlon ii((.iiniit it lapned, fnniitd no
uronnd for inturfuruncu. liin/iinr 'I "I, \ , Siilt,
24 g. H. ISO.
Interiileader may be direeted for the priicouiU
of a sale in the Hheritl"*. h.'inds. The sherirt"
Mi'i/i'd goods oil the 1st (K'tiiliir, ami sold jioi'-
tioiis on the ITMi and 'Jiifh, (hitlie4tli Noveni-
lier one It. el lillieil, .lllil llllli'li I'lii'l'i'spiiiidellCU
eiisileil. (In the •Jllid I )i Illlier If. illeil tllU
slieiill', who, on the ."list, iilit liiiid ;in in^iipleader
Hiiiiinions. On the hearing It w.is adiiiitted that
It. owned all that he at last ^laiined, part of
wliii'h had been sold, and the rest, with tht!
[iroreeds of the sale, rem lilleil in the sheiitl'M
li.'inds, and it was not :diewii eleaily that tliu
plaintiff had diri'i ted the seizure of these par-
tienl;ir goods. I'lider these eiiiiinistaiiris it w.w
ordered that It.'saetioti against the Mhiiitl' should
be Nt.'iVed, and his elaini ag lilist the execntiou
plaintiff barred mi 'lelivery to him of lijs unoil.i
unsold, and the inoereds. withmit ilediiitiiiii, of
the sale, and that the piiiiiitiir slmiild be baiiiil
as to sueh goods and proieeds. The .slieiill' was
ordert'd to pay till sts of ll.'s aetimi, as he
might have applied before it wa-i bi'minlit, and
the [larties tn p.iy tlieir o\\ii costs of tills aiipli-
e itimi. liiiiilli V. I'ri'.itiiii inn/ 11 rliii lidihrin/
Co., ;i 1". 1!. 110. -C. 1,. Chamb. Magarty.
2. fii Olliir f'ii.ii-'.
Where money was ]ilaeed in defeiidaut.i' hands
by plaintiU's, oii iin agieeiiieiit betwei'ii plaintiffs
and .v., to be jiaid over by defeinlaiits to A, in
the whole or in part, on his niakiiig up eert.iiii
aeeiiiints .iiid pi'it'oiniing his ugi'i'eiiient with
plaintiff, imt |ilaiiitilVs sued defendants for the
money before they had eoiiie to any ileeisimi as
to .-V.'s elaiiii, «liiili they were to iletelillino
111)1111 : Held, that they were not entitled to an
iiiteiple.iiler. Cuiinii it ill. v. ('iiiinriin it ill., '2
P. It. (•)•.>.-('. L. Chaiiib. Hui'iis.
An interpleader will not be granted in order
to try the validity of an attailiing order, or to
determine the .'inimuit due to the jiidgnieiit
debtor. .MrXiiiiijIifnii v. 11 - '<..i/' /•, (> L. .1. IT.—
('. Ii. C'liamb. — Diaper.
A common law judge has no power, unless by
statute, to direct a feigned issue to be tried liy
a jury. Mi'l^niiijlilin v. .Url.iniii/ilin. I'tV. V. IH'2,
Where proceedings are taken tog;unisli a debt
which is claimed by a third [larty as assignee,
there is no power to direct an interiileader issue
to try the validity of tiie alleged assignnieiit.
Kirrit III. V. Fiilli'rinii, .S 1>. It. ID.— ('. P.
On an application to set aside a Ii. fa. land.-*
on the ground that the judgment had been paid
before issuing it, the judgedireeted a feigned is.sue
as to the fact of paynuuit. I'liiimlih v. Slmtn;
W P. II. 315. -C. L. Chamb.— Hagarty.
(xoods belonging to plaintiff' and stored in de-
fendants' warehouse, were alleged to have been
sold by plaintiff to M., who, with plaintiff, came
there antl marked them in a certain way, after
which, under plaintiff's instructions, they were
dispatched by defendants to T. as plaintiff's
property, and delivered to his order. M. having
claimed the goods, an interpleader a.s between
plaintiff ivnd M. was refused to defeiulants.
Brill V. Gnuiil Tvauk Ii. II'. Co., 20 C. P. 9.
INTERPLEADER.
iff:
< )nc fJ. recovered a verdict againat the i)lain- j
tiff', ill ^[arcll, 18(13, in the ('(luiity Court of P., |
■wliidi (1. iisisigiiLil during tliu same nioiitli to D.
& 11., of wliich asMignment notice was given to
the iilaintitl' in Novenilier following. In April, !
the month after the verdict, the deht was at- j
taclied hy ecriain creditors of (4., and they, as
■well as]), di I!., ])resse(l the plaintitf for pay- |
ment, Imt took no stej) to settle the right as
between themselves. An execution in tlie suit
lia\ing hecii placed in the hands of the sheriff', :
the plaintitl jiaid the amount to tlic sheritl',
whien Avas immediately paid over to l>. , the
cattorney in the action. In the meantime a writ
had hecn ordei'cd to issue at the suit of the
attaching creditors, hy the judge of the ('ouuty
Court of \., wliicli action I), refused to defend ; i
and judgment was entered liy default the same
day that the del it ami c ists had heen paid to the
sheritl': Held, under the circumstances, that
the ]ilainti!V was not liouud to take upon himself !
the rcsiionsiliility of de(nding hetweeu the rival
claimants, and that he was entitled to tile a hill ;
in this court, calling on them to interplead, with-
out paving the money into court. DnvUlson v.
nu!i;il,'i.^, !•_' Chy. 181. I
Where a jierson in good faith, Imt from wrong
information, rejilcvicd property which did not
belong to him ; and after a venlict against lii.i..
a new claimant insisted that the property was
his, and thrcati'ucd an action :— Helil, notacase
for an interpleader in this court. Fuller v. Pat-
terson, l(i Chy. i)l.
On an application for an interpleader order it
is only necessary to make out a prima facie case.
The secretary has a <lisereti"U to grant .such an
order and unless it can he shewn that no prima
facie case was ujade out, it will not 1)0 set aside
on apjieal. (niiir/ai/ \ . //n/rimi, '2 Chy. Chaml).
23S.-~.Spraggc.
An order for an int.'rpleader hail been applied
for to try the right of a married woman to cer-
tain goods seized under li. fa., to which applica-
tion her husband was not a party, and the motion
.ias riifuscil with co.-tr, as reported in (Jourley c.
Ingram, "2 Chy. Chandi. 2'M. On th.at application
certahi depusitiiins or examination of the hus-
band had been put in to shew that the claimant
■was a married woman, but had not been fonmilly
read, the fact not being ilisputed. On the close
of that application, the solicitor fir the plaintitl'
took away with him these deiiositions, and notice
having been served on the husband, the motion
was renewci', and an interpleader onler granted
by the se;Tetary, which on appeal, was sus-
tained. J/>.
An interideader order was granted in this case
in favour of an auctioneer, Mdio had sold goods
for the mortgagee of the owner, but had, in
obedience to a judge's order, pjiid over the pro-
ceeds to an assignee of the owner, subseiiuently j
apjMiinted in iusidvency proceedings. W'titnoii
V. Jf,i„/>r.i>,ii,l ah, 12 L. J. 149.— C.L. Chamb.
— Dalton, r. C. .0 /'.
The plaintiffs having in their hands a sum of
money, the proceeds of certain goods sold by
them ivs auctioneers at the instance of one W.,
bu*' which was claimed by B. , the official assignee
of one H., an insolvent, ■were ordered ])y the
judge in insolvency to pay the amount to B.,
wliich they did, and notified, the attorneys of
AV. of the fact, who thereupon prorecili.iln-
an action at law which he had prcvidntilvii,,
tuted against the plaintitf's to recover tiiis iimn!
The plaintitl's thereupon chiiniiug tn lif jK
hohlers only, filed a bill of intcrplcnlcr uni
W. and B. :— Held (1), That the iilaintitl',,!,;
ing already paid over the money to mn' '„{ \
claimants, were not in a position tn call m
W. and V>. to interplead ; ("2) 'I'hat tia [ihiiini
obvious «luty, upon being sued at hiw, m;^
have pleaded the facts and apjilicd tn tliatmii
which would in a pro]ier case liavc iiiado mi nn
allowing the money to be brought jntn niii
adding B. as a jiarty to that suit, and ilisili,,]
ing the plaintitl's here fi'om fuitlicr iitteu,laii
therein, and dii'ceting B. and W. tn tu.^t tlii
respective claims to the fund so !iniii"lit jn
court ; there being no reason why siuh \.r»((,_
ings .sluudd be an exception to that whiih I,
been laid down as the geuer.al rule inti'.'uo
by the Administiation of .lusticc .Act tli
wherever proceedings are coninu'iiucil, tlitrtoii
plete relief between the parties is tn ho \\ux\,
out. HiHiVriioii v. Watmiii, 2'A Chy. ;j,j,").
The Admiuistratiou of Justice Act, 181,'), •
applies to proceedings in County ('nurtsaswi
as to those in the superior court.-- of the uinviiK
Where, therefore, the judge of tliu ('iii;ii
Court of Wentworth had in gariiislno iii-dai.
ings made several orders for jiayuitiit mit
monej's admitteil to be in the h.-iiuls ni aiiiiijia
company, and subsequently the juil'enitl
County Court of Esse.\, in oininsitinn t.. tl
contention of the conijiany, made- a s inilarnrili
at the instance of another crcditii-, wliidi li,i
the etTect of rendering the c(pnipaii\ lialiktii'j
a sum greatly exceeding the aiiininit inumilii
to the original (hditor, and the cuiiiiiany lilid
bill calling upon the several claim.ints to inte
plead, the court refused to make sikh an i. ,
on the ground that the rights of all parties iiuj
have been adjusted in the suit in tliu ii.iimn
Essex, .and if dissatislie<l with the liuiisimi tin:
the company might have appealed frmn it. I7i
luria JI til nil I Fire Ji/x. Cn. v. Jii Ihunv, 'i:\ (.'liv,.''!)
II. Fkacthe.
1 . Thiti' for Aiijih/hijij'iir (>rih r.
A writ w\as delivered to the sliurilf uu t\\'
of October, returnabij on the lirst nf Miiluc
Term next. A seizure was made next ilay
on the I'Jth two parties separately gaveiiutii
claim. (.)n the oth day of .Mic liailmas Tdiii
sheriff' applied for an inter[dcader : llcl'
delay not being accounted for, tliat tlic ai
tion Wivs too late. Tlniiiiji.-oiu v. W'ufil, 1
11. 2(i9.— P. C— Draper.
An application f(>r relief Jiftei' the letiiiii
of the writ, is too late unless the delay 'n' *
factorily explained. Cub v. .'/./•'/(?/, 1 (,'.R
— P. G. — Jones.
Held, that the sheritF was not justideil. li
fact that the first seizure did nut eniliran aj.
goods of defendant, in delaying to aii|ilytil
could get possession of the residue, .l/ittc v
Ian, 1 L. J. N. S. 327.-C. L. < 'iianib. - A. Will
2. A mt V.llllKJ llKM-
The court has jurisdiction, and will osei
a iliscretion to do substantial justice kti
it, who thercupoii jirocoo.li.ihvitli
aw whiuh he had I'l'i'vidiislv instj.
the plaiiititfa to rocdVL'i- tliis iiiniitv'
thoreuiiou claiiuiug tu lif stj).',' ]
tiled a hill nf iiiterplriiilcr lyai,,,.
-Held (1), That the plaiiitillsji,4.
aid over the iiiDUey to ihk' nf tlie
jre not in a positidii tii call i,,,,, [
interplead; (L>) That tin iilaintju,'!
, upon beuig sued at lav, was ,,, |
the facts and apjilied to tliatumrt
hi a proper ease liavc iii:iile an unljj
money to he l)roiight intd niiirt
% party to that suit, and (lisclmr'r'.
;iHs here from fiirtlici' attoiiilaiicfll
ilireeting H. and W. tn tu.st tlieirl
linis to the fund so !ir(Mi"hf intnl
being no reason wliy .siuli [.rin'^,!,
)e an exeeption to that wliidi liy
\i\ as tlie genera] rule iiitr.,'.iK.t,l
iiustration of .lusticu .At't, tlu[i
feedings are eoniniciiueil, thtrc (.mih.
etween the parties is td \tv wiii-y
noil V. WdlKiJii, -J.S Cliy. X)').
listration of Justice Act, ISTS, (i.
jeeedings in I'ounty Ceurts as ntl
the sujjerior courts of tlic imiviinej
efore, the .judge of tin.' (JuaitJ
ntwoi-th had in ganii.slao [miimli
;veral orders fcjr payment nut
bted to he in the iiaiids nt'au ii^iir^
(I suljsequeiitly the jmlgc nt tl«
•t of Essex, in ojipnsitinn t" tin
the eoni]iany, made a f' iiiilariirilijj
ee of another ereditii-, wliiih lijj
enderiug the conipaii\ lialilt tis^ii
' exceeding the amnuiit louiiu
il (Ud)tor, and the c(iiii]iaiiy lilfi
[)()n the several claimants to liittJ
iirt refused to make sucli an Mi'ileJ
I that the rights of all partit's mi;;!
justed in the suit in the I'l.iintvi
dissatislied with the ilucisinut
might have appealed ti'din it.
Fiir Jus. Co. V. h'rlliiiiir, 'IM^ln-.M
II. PKACTrcK.
nil' for Aji/ili/'nujl'iir (h'llr.
1 delivered to the slierilf ipii tin- 3
aturna'il J on the lirsl df Micluilinl
A seizure was made next day,
iWo parties sei)aratcly gaveimticS
he nth daj' of MiclKulmas Ttnii^
;d for an inter[ileadcr : HeW.
ug accounted for, tliat the aiifli
late. T/iiiiiijis'iii V. IWii-fl, Ij
C — Draper.
ition f(>r relief after tlic ivtuiii (
s too late unless the dilav I'l' i'4
lained. Co/, v. J/r/'„W, 1 Q.B.^
les.
; the slierifF was not justilltil, bvl
first seizure did udt eiiiliracf alj
endant, in delaying tn aiiiilytH
isession of the residue. MiU'i- v.
r. S. 327.— C. L. C'lianib.- A. Wil
2. A nil iiiliiKj /i."'"'.
lias jurisdiction, ami will «ej
to do substantial justice bdf
ISO"
tilt parties, andto that end w;il , . . ,.
,„i„l«ence to the party w 1, • nft""* """"^ °'' I
ofliis intention to ask for it .„.?,''''" """ce '
Mtteris before the court unon!) '""!?'' *''« '
of the ..ppdsite party 'jA? '//""', "l'P'''«-itiou
:Hl.y. Cha.nh. 2k3.-^,Sp4gf '''"'"' ''" ^""'"''
I Where an hiterjdeader order hn,7 i
It, try the ownership of ecM-tlh '''J ^™"*«''
mkrii. fa., an interpleader « *''"'"'' ''-■'^«'l I
,k...e party which c/.n ' .J,! .,' !,r' .*f"''^''*-''l
\m. whilst pointing ...t the irro ' V^'l'''^''
km- to Its amendment, h„t LZ V^'^^T'^ *" '
\mU not accept or act , t'l, ""'"-""^ ""** !'«
Ul to .,et asfde th'w; o ' ..'terfi '"f *''''»
.otice of trial. The secret-u v .."i^'^'^Pleader ami ,
L,n. and gave the othe, nrtv "'"'' *}' ■'^W"- !
ke issue nunc pro tune ()', .„'^ ,."; *" '""«'"l '
Lsustained. ' J/,. ^*" '^'l"^'-*! tiie decision :
INTERPLEADER.
'here there was a vari'm,.,. i, j.
fede.1 hy ,.n interpl^X,,,^^^^^^^^^ f^^"*^
ka in the record the at e, I"" '''""
fch, if asked, the court w , W t"^ 1^'" ^^«'"=
mi, that after the tri-,I i <lH-eeted :
k,kenof the vari me /";,r'™"^^«« -"^M
3. Bisciiidinij Ordc.
■th
I ffliere the claimant neL'leets tn h,.- xi •
Itml, the iirdi.er course ,W ""° *'^e issue
litoplealler^rdr >^,::,J' ;"^7':'/? '•^■«'^in,l
Iamb-Burns. " " '"•' '^ ^- J • 20. - C. L.
. «ls of dcfen.lant Ijeintr «„;.^„ ,
•%, 1S.-.S. one B. cLumetth m '",' *^"^. -"*'
MJtr issue uas direct" T ' '""' '"' '"tei>-
'^'"ts title waot,hein^nV"''^°ftJ>«
»:f}l.e afterwanls aVjdie.i l '" ''W'^'^'-^-
«»'! the order, on the gn um t^^^''^''"' '"'
.«^-«I hy the sheria' Juuf iS- ^''S'
>tle«as acquired suhse.jueiitly T , ,' '"-^
h 11" explanation of his dday T„, 1^ '''^'"ff ,
«l'l»'"titf denied that he haK '' ""^ ?-^'^'''»-
* tliat the intende-i dr ; *''""^«'l '*=- '
»*l->vithcost t,XexecnH '■ "Z"^* ^'« r*^' I
'•'l.eclain,ant,Sben"-"^.V^I'"t''^'?''t
' '" the clain,a,;t, ^ h^^^^^'T^^' '"'
feSfcrt":;S-r ""^-titled
l«l.itf>insthin,, toseti iV/^^'"'""^ ''^ "'-
|'.'^e.ahe«anie hein ' hSee ^.''' '"'■I'''''^'^'^''
|l't^.ramlstraii..ers to tho *^''' i^-^ecution
t«i't to be bean in ,e nt^n? ^ /""^ '"> ^''^^
lit of Mhieb estahl shes otlfP '';'"''■ '"'*• ^'^
pt :-Held, also tint f,"""^'*" ^^^^'t his
[« appheatio'n to' a co, mo? 7' "o. warrant '
kdelitor lV,.v./ •"""/. assets of the exe-
,„, 4. Oth,-r Cns,,,.
>> here no time Ii>a i, i- .
l'Iea,ler order "or Z ,h''in 'irt"^' ''>;-' '"tor-
, 's.sue, the court M-iU order "•*" "'^*'^'^ "1' the
"P I.y the claimant v a ... ^' "'r' '" ''^^ "'••»' le
; fault thereof to he 1 a 're,' f "" ''''•^■' "'■ "" 'le-
:i't'S''^i"';:^t'thri^Vr
^^'V/'A.. V. Chuun,.,,:^) ^!l '»f«rlca.ler Act.
l""SSiSri;i!!;*-'i'^-'-'i..vehe.,.a
";"sthema^e to t^ f ,^"'";:;'"^"' "I'i'li-.tnms
L I" i"terplea,ler .indi ^ ■ ^'^''^^^^^^^^^^^
;"» "PI'ortunity to (lie nthe • • !■'' '"•■ ''"""•<'<l
L- ^)'anil,.-K,,i,i„,^,„/-^""^^ -^ ^- J- -'10, -C.
-Sll;^;Syo/^;i'- ^l-Pl'-tions in
considered. 7/;. "' '^^>'' y-ds when sold
"<'^" «. the arthlavits mil l'"',"'^' ^"•""■'.l of
!"^^nts are, hut-Held t nf '''"*'" ^^'"''t the
'!««"'' it is not neeSy t ; .? ''" '■"t--^>'plea.ler
"uusmudias the ve y ^ " i■!'•'^;'"t. tlie merits
lH> defendants' elainfi. .^ f/ ''■■^f''««« "hat
F-,t?^;;:4--terp,ea.ler order
rf,q«ea,ie, suit' wfel ?"''"' ''"'^' »"* i"
r'"'ii'"tlienriirhia P.. '"'"■*^ collateral
ley that . , ^^'^™'^— Richards.
t^'^^-^t'TS'ifrr*--*-
hhe,aiK,i,,^t/''«« after W of fom-
h»f '' '"'til horti?Tr*H?*l^^
".Sis'fer^S"'^!^,^)-tl-m.po..,,
•ssue to he tried hef n. t .7' '"' '"t'^'P ea.le •
tV>tn;tfroni which t:,Sui''''^'>-' "^' '''''" ''"""ty
t" himself the duestion ' '''"^''' ••««crvinc.
'incHtioiis. HeiJnS^^,;; -f« '"'l' "H ^-tl"^
proceedings nimself .u^S ' t ■ ^^'^^ "/ the whole
of I>«ore the jml.re of H *''^"}to he .lisno.se.I
r .cess issue./ ; at wl t'sS '"'". '''''^^^ ^^
heeii directed, on an. ..Vl% ' '^ '-eferenee ha.l
tl'c ju.bowho actj' H/'""",' *''" 'Ifoisi.m f
•««'H' :^-Wd, that s eh m-o 'r" "'"' ^''^'^ the
''< nl. V. D,;var, 4 '^ ]" ''\'\'''V ,?«^'^- " V/....«
Remarks as to f I,,. '" ' '-■~-^^wi'ison.
the poatpoue^ri I'i;--';f the Ju.lge to order
luttiulof mniteri.leader
I
INTERPLEADER.
i> K
issue, wlicre the iiiterpleailer order directs it to
be tried at a partiuular sitting. Jfaliiiimn v.
Jiic/i(tn/,soii, 32 Q. B. 344.
The iiliiintilT in an interpleader issue at hiw
having liled liis hill for relief in this court, while
the interjilcader is jiending, isnothounil to elect.
Me Ltd It V. /{((ill/, 1 L'hy. Cliamh. 84.^Esten,
AVhere a married woman claimed goods seized
under a fi. fa., and an interpleader order was
applied for, it was held that her hushand ought
to he served with notice of the motion. Ooiirldi/
V. Jiiijraiii, 2 Chy. C'hanib. 237. — Taylor, Seen-
tary.
Where on an interpleader issue the amount'in
dispute was .*!()(). 40 only, a verdict having heen
given ill favour of the claimant and the judge of
tlie County (.'ourt who tried the issue, having
eertilied that he was satislied with the verdict,
tlie court refused a new trial, although they
thought tliat if tlie case had originally come be-
fore this court for trial on the same evidence, the
opinion of the court might have lieeii against the
claimant. S. C, 2 Cliy. Chamb. 30y.^Mowat,
'i'he verdict not having been endorsed on an
office copy of the order of interpleader, but on
the record only : — Held, to be immaterial. Jh.
Tir. FdUvl AM) CoNSTIU'CTION' OF IsSlE
An interpleader issue is to be taken distribu-
tively, and an assignee claiming should succeed as
to any part of the goods of which there has been
n change of possession, though as to the rest the
assignment may be void for want of registry.
Fcc/kiii v. Jiditk- (if TaniiiUi, 10 C. P. 32.
Tlie (picstion on an interpleader issue is not
whctlier the execution creditor had a right to
seize the goods under his writ, but whetlier the
plaintirt' had sucli an interest in tliein as entitled
him to resist the seizure. OranI v. Wilsaii ct ol..
17 Q. B. 14-1.
The proper issue in an interjileader case is to
try whether the goods at tlie time of tlie seizure,
not at the time of the delivery of the writ to the
sheriff, were the goods of the claimant. Van-
En ri/ ,:t ul. V. y.Vs (t (iL, 11 ('. P. 133.
The proper frame of an interjileader issue be-
tween tlie claimant and an attaching creditor is,
whether tlie goods attac'ied were at the time of
the seizure, the property of the claimant as
against the attaching creditor, and not as against
the absconding debtor. Doi/k v. LnKhcr, 16 C.
P. 2{)3.
IV. ?]VIDKNCE.
()n an interpleader issue to try the title to
goods seized, the plaintiff claimed all, asserting
that he had derivi;<l some by purehiise from the
assignee of the exciution debtor, and others by
subsetpient purchase from third pfirties. The
.•issignment being invalid :--Held, that it was
necessary for him to shew what goods he was
entitled to without it, and on his failure to do
this that the jury were rightly directed to fiiid
for defendants. Crajiper v. Fitternuu, 10 Q. B. IGO.
Interpleader issue to try the right to goods in
possession of and bought by jilaintiff at sheriff's
flale under ti. fa. against execution debtors, as
against defendant, the execution debtor ;--H
that plaintiff was not bound to jmive ;i i.
ment to support the prior executioii iimlirul
she bought the goods. Jhuimiill \. I),w,],-
C. P. 419. '■''
The form of an interpleader issiio under T
U. Co.. 30, s. 8, to try title of claiinantsuf .„
as against the execution creditor, .i.ssuincs
right of the execution creditor to suizo tlie v
of the execution debtor by virtue of ajiiil..',
recovered against him, and ciniseinientfv
execution creditor is not bouiid to innve
judgment, ffoli/in if iil v. Lain/I, ,/, /'„//,,.,
Liitiijh'ij, 11 C. P. 407, 411.
Interpleader, to try the rigjit to cirtainshj
in a schooner, seized under an cxitutidii it'
suit of the defendant against \V. s. M ^ ,,,1
2nd of April, 1S()3. The plaiiitili's title ar
thus: 1. On the 27 th of Aiuil, ]iS,")!l, W. s
made a voluntary conveyaiice to his soi,.
On the oth of March, ISd'o, the slitriff, im,lt'
veil. ex. against AV. .S. M., sold tn S. M •
The son on the 24th March, ISi|,'!, comim';
this title by a voluntary deed to S. M. mI,,,
the same day conveyed to the pliiiiitiff, .s
had in December, 1S()1, iiiortgagcil tii ime '
who on the 28th of March, I8(W{, :'.ssii'neil tut
plaintiff'. All these conveyances were ilulvi
gistered at the custom liimsu. The ileiiii,la
objected that a judgment shmiM have ]^
shewn to sujiport the veil, ex., and he (Itsin
to ])rove fraud atlecting the sheiitl's sale. |
shewing that W. >S. ;M. supplied the iiiiiiievthl
paid; Imt it was not denied that the ijajntj
was a bonfi fide purchaser for vahie witli.iiitii
tice : — Held, that the defendant, ,vh(i, <, urJ
appeared, was not a creditor ot W. s. M mj
long after the deed to his sou, and wlumy
stranger to the judgment on whieh thevin.
issued, was not in a position to iin]ieaoli(
plaintiff's title, or to rctjaiiv that sneh iiidiiiii
should be proved. ViiidUi v. ll'oW., :'4(^i. ftl
Held, that defendant was not I'eiiiiirediiiaal
terpleailer issue between hiinsell', ,iid anas-
in insolvency, to prove his judvnicnt and ««(
tion. Mc Wldrtir v. J.(iini/iirifi, 18 ('. 1', i:)^
A. obtained possession of goocU hy iniinf^
from a sheriff upon an execiitioii issued diia jij
ment recovered against a married woinaiiwitll
joining her husband. li. having it'nnirej
judgment and issued an exeeutimi in tlif
way (without joining the hnshandi imA\
same goods which A. claiiiied, and li. oiiutinl
in an interpleader that A.'s jmlfiineiit wasi
and thfit he was entitled t(j the gdmls;-
that A.'s judgment not being alisnhitily
and he being in posses^simi with a iiriiii..
title, he was entitled to raise the sainedliji-^
to B. 'a judgment, .iiid both judgnientt
open to the same objection, he was ciititlej
prevail. Davit v. Lcrci/, II C. T. I'll:'.
In an interpleader issue the iilaiiitill i
his case upon proof of a chattel ni(iitga!,'o t
tain goods nienti(med therein, made to 1
the execution debtor, and duly tilid :-
clearly insufficient, for it aHmdeil im |ip<
the goods mortgaged were the same a-
seized by the sheriff and olaiiiie'd. /<
Jeuk-hiK, 25 Q. B. Ifil.
The Interpleader Act makes im ilistiJ
between an attaching and an exccutiui: err
11)
ant, the execution lUlitnr ■.~■]{^]^\
was not Itoiind to in-ovo a \n,\^!.
rt the prior execution under wl
e goods. Ihuiniiill \. hi ]\'„if
\m
INTERPLEADER.
an interpleader isKiiu uiuler ('. ;< |
8, to try title of claimants nf^. |j|
B execution creditor, ussnimrs tlief
:ecution creditor to seize the
ion debtor hy virtue of a jiiilpiit|,|J
liust him, and constijiu-ntii- [U
iditor is not bound to jm-mvV tha
foliti'ii (■/ (ily. LaiHili II, Ptiii,,-,
'. V. 407, 411.
;r, to try the right to certain 4m
, seized under an cxci'iition at tbj
sfcndant against W. S. M., i,,, ,ij
KS()H. The plaintili's titii' ari*
the STth of April, IS,".!), W. S. Jfl
ntary conveyance to his si.u;
f March, 18(iO, the slicritl', uii.krj
inst W. S. -M., sold t<i S. M
tlui •24th March, LSii;!, amlm^
a voluntary deed to S, M., wli,,
■ conveyed to tlie plaiiitilf. S, '
iuiher, ISlil, niortj;,igc(l tii onc 'M
:8th of March, ISdli, :'.ssignL'ilt"tlf
11 these conveyances wure iluhi
the custom house. 'I'iif ikiVnilai
it a judgment shouM liavt let
pport the veu. ex., and liu d^ir
ind atl'ecting the sliuriff's sal'j,
; AWiS. M. SHpplie<l the nmikytlij
; was not clcnicd tliat tht piainij
ide purchaser for value witli"im
that the defendant, .vho, siiarl
IS not a creditor of W. S. J[. m
;he deed to his son, and \\]mn
he judgment on wliicii the vtii.
not in a position to iinpraohl
;le, or to retpiire that smdi jiiilgmt
•oved. I'/H'/i/i V. liV//;..-, •.'4(J.'"r1
; defendant was not required in au|
sue between liimself, .lud .niiassigl
y, to prove his judgment and ««(
hirtcr V. Lniniiiirtli, 18('. I'. i:fi
jd possession of goods hy hillnfj
,f upon an execution issutil una j
red against a married wcmiainntlj
husband. B. Inniui! reoivcn
nd issued an execntinn intlif
ut joining the hushandi seizdil
which A. claimed, and li. cmittij
leader that A.'s judgnaMit wast
e was entitled to the godds :-l
idguient not being ahsdhitdy
iig in possession with a iiriiii.'i
a entitled to raise tlie same (ilije|
Igment, and both judgnioiit-
e same objection, he was tiititlj
kwkv. Lciry, 11 VA'.-m
terpleader issue the jdahitilT
:)n proof of a chattel nnirtjjagt
mentioned therein, made to I
ion debtor, and ihdy tiled ;-|
ifficient, for it atl'onleil no pw
mortgaged were the same Mj
the sheriff and olainied, J'f
Q. B. 151.
crpleader Act makes no distil
I attaching and an execution c
comiiiittcd tlie trosiiot.V,"
. fso.iioeraetr,.g Xthevv:-;"'' \'' ^'"^
tet, in the exccTtion o the ^. I^' ""^'''^ '"«
i.edan interplca.ler order of tt •''','""' *'"-'»
MyC.inrtontof which to fl i- ^f^^'' "^ *''«
^wlneh the present plamtiff wJu? J.tT 1^""'!
e L'oods ^^■h,n seized unde,' t le f ' ^''•"""-''l ,
inter])Ieader ordpi- m ^ • V'--' ""
S' "I the i^:S;:'i^'£'%-.j!:- -e f.. n-
-Iffendants were not Ji.a ]' r "')''"'"' ^■■■''"^■.)
-^«nnh;^,!:r*r:^'-t accepting
m^^kean exeettion -c r "i ''""-' '"^'^'^ "^
to'-l-or hable for the' t .^r^f^'^'^^'^'- h .'ela-
inffaiid his onTcer cnl T/'^ '''•'«l"^'-ts ' 7°'^'""'""*^ caused „].,;Mfifl-
'"''■ '"'■ 'J'lii/lor, i " ■ "" oeiong to tlie litf " """'I'"' '"^lle\iny
f ^^^'"^fd l,y the sheriff „„,,,„ , ■""•>', «'*^-« tJie plaint r^'nno' '"'«'''"^«s. The
I tbconrt, as the goods 01' ," '-'■^<:«'«"n ^f held ^xn^XT^.J]'^^ •'■"'"'«-■-, whiSi
f. An iuterpleadcT wi, fi ' "'-'''^' '^hiinied \ '^hle after date of i,,t^ i ''' '"'y'^^ ^''ere recover
: elanned it, au
1:
« '»m not to seize a particH-
for the payment liy claimant of all costs in
reil in consequunco of his claim. Mi'l'li^r.,,,
Xorri.1, 3 L. J. 4i). — C. L. Cliaml). McLeai
U'
lar horse meiitioneil, ami they contended that as
on the receipt of this letter the hailiil' should
Lave given the horse up, they were not liable for \
its further det(:utiou. The evidence shewed Dhat I
the horse seized was not the one mentioned in
the letter ; hut Seinhle, tliat if it had Ijeen, de-
fendants would still have been liable for the |
continuance of the wrongful seizure which they
had authorized. /It.
VI. Costs.
Where a sheriff o))tain8 a rule under 7 Vict,
c. 30, calling upfin parties to sustain their claims
to property seized, and one party fails to appear, j
Lis claim as against the slieriff is barred, and |
the party appearing is entitled to have his costs
paid by the party faihng to appear. Johnsun v.
Bulilwiii, 1 y. 15. 280. —P. C— Jones.
An interpleader suit, in which the trustees of
this defendant and this plaintiff were respect-
ively plaintiffs and defendants, Wivs arranged on
the understanding that all costs, including the
sheriff's fees, &c., should be paid to the plain-
tiff's attorney. The costs, except sheriff's fees,
■were paid by an order on the trustees by their
attorney, who stated that, as soon as the sheriff's
fees were taxed. H., one of the trustees, woidd
pay them. These trustees subsecpiently trans-
ferred all the property which this defendant had
previously assigned to them to other trustees,
the sheriff's fees still being unpaid; and H. swore
that he was not aware of these fees being due
until after the transfer. Plaintiff's attorney
sued the trustees for the fees, but was nonsuited ;
and the judge in chambers declined to order the
trustees to pay them, considering he had no juris-
diction over them. Dttnii v. Buti/toii, 2 G. L.
Chanib. lOij. — Draper.
"Where the claimant established his right to
all except a small portion of the goods : — Held,
that he was entitled to the costs of the inter-
pleader rule, and of the feigned issue and trial,
from which defendant might deduct the costs
incurred in proving his c'laim to those goods
found to belong to him. Di'iiijmc!/ v. Ciinpar, 1
P. K. 134.— P. C— Burns.
Where an interpleader order has been granted
by a judge, an application for costs of the issue
must also be inade to a judge, and not to the
court : but Semble, that it need not be to the
judge who granted the order. Sewell v. Buffalo,
Bmiitford ami Gmkrirh 11. W. Co., 2 P. li. 56 ;
3 L. J. 29.— P. C— Hagarty.
Two interpleader actions having been twice
tried, resulted in favour of the plaintiff, the
claimant, and on application to the judge who
granted the orders to dispose of the costs, the
matter was referred to full court : — Held, that
the plaintiff was entitled as of right to the costs
of the actions ; and that the costs incurred be-
fore the issues, in procuring the order, &e.,
should also be i)aid by defendant ; but the ques-
tion raised as to the discretion of the court iii
such cases being new, each party was ordered to
pay his own costs of the application. Bdlhome
V. Giinn, 20 Q. B. 555.
Where a feigned issue is directed upon an in-
tendeader application, and is found against the
clanuant, the execution creditor will, on the pro-
duction of the record, obtain aii order of course
No costs of the day for not l)roc(.i^^itini«toi
pursuant to notice in an interpleadi i- suitwil
allowed till the termination of tlio imicTOli
Siiltn- V. McLcixl, 10 L. J. 2!t!).-C. L. ^1,,,
— lUchards.
An execution creditor made dofciiilant ic
interpleader issue, may be ordered td givu g,
rity. Lori'll v. Wttrdroiur, 4 P. U. •2tjo._(
Chamb. — Draper.
A delay in applying for security irom tlie
July until the 11th August is fatal to tiw ai
cation. Ih.
Plaintiffs and defendants, bciui; joint d^
of a vessel, instituted a suit to have the iiarti
ship terminated. The ves.sel was »mIi1 mi
order of this court, and notes taken in [larti
ment, and deposited with the registrar i.f
court. Subseipicntly these notes were sueil
in the name of the registrar, and txeeutiMn
tained, under which the vessel w as seized as
property of the makers. Being elainioil liv i
tain i)ersons, the sheriff obtained an inteqiki
order between them ami the exeeiitioii plaiiil
but without the leave of the cnuvt liein' asl
by the execution plaintiff therefor, or to
litigation at law ; and the claimant kuccwiIpI
the issue. On motion to have tlie eosts of 1
issue paid out of the moneys in eoiirt :— He
that the sanction of the court kIkiiiM liave Ik
obtained to the contest at law. it tlie part
meant to look to the fund in court fortlieirios
and that not having been nbtaiiieil, ajiiilia
must make out a special case to get the costso
of the fund. Under the circnnistauees tlieco
at law were ordered to l)e paid, but onlylit'twi
party and party, and on terms. ManlniiAt
C'avrodi, 1 Chy. Chamb. 145. — Vanlvnitiliiiit
The sheriff before making applieatinii for
interpleader order should make .some ini|U)rr
to the nature of the claim, otherwise he nill
ordered to pay costs. H'c//.' /• v. .V;/i.v, :! Cl|
Chamb. 59. — Taylor, Sccri-lari/.
The claimant in an interpleader issue, ii (
of the jurisdiction, is bound to give seouritvl
costs. S. C. lb. 108.— Strong.
An interi)leader suit nmst be ilismissiil
costs, if the plaintiff does not est:il]lisii f.t |
hearing a case making iiitcrpleadev iiro[H;r.
of Montreal V. Little, 17 Ch}'. (iS5.
VII. Action o.v Bond.
ftoods were seized under deftiidaut'sestrttl
and being claimed by the plaintitl's uiulcri
signment from the execution 461)101-3, an ii
pleader was directed, under which thejika
gave their bond for pajniieiit of ilefen.lr
claim, or any less amount to be onlereil, in!
he should succeed on tlie issue. A juii,
having iMjen obtained for defeinlant. an (
was made allowing defendant to enfna'S
bond, on which judgment was acconhngij
tained. Defendants (plaintitl's in the i^
pleader) then applied to resoiiul or mi«li^
order, on affidavits stating that Mm m
signment to them the slieriff lielil an execl
against these goods for more tliau their r
r claimant of all costs incut-
, of his claim .VrWjr.,M-.]
— C. L- Cliamli. McLean.
(lav for not yvocftMliiiK t" trial
,(u an inten)lea.l..v suit Willi
'rminatiou of tlif prncce.hna
10 L. J. --ilW-— *•• I-t-li™U
1505
INTERROGATORIES.
190G
lihich thoy liail i)ai(l to prevent a sacriliec, and , termincd in favour of the dainrmt, withmit
Ijut the iTiiiiilg were sn1)se([uently sold to them j tender of his costs for so doinj,', to restore the
Ljl(5S th.ni the sum so paid. It apjicared,
lliiwfver, that this was the first occasion on
lihic'h that execution liad been mentioned, or
lovchiini made on aecrmiit of it, hy defendants.
Ilheoourt nifiised to interfere. Balhmll v. B<d-
J,,,,, 18 Q. B. '-'31.
(i
Tcditor made def.u.hut i
be ordered tu pvc s«tt.
4 v. 11. atlo.^r.'
3, may
W'ai-ilroixr,
nlying for sccuntv
1th August is f^^taltn til.
from tlic inl
Htli
I .lefendants, being i';i"tnTOi
itutcdasuittohavethepei
1 The vessel w:;rs s"U mud
,,iVt and notes taken in vartvjj^
S;d with the -,.tnr ..tj
luently these notes XV. ■U'Mu.lfl
X> registrar, and ex.cut|n,p*
which the vessel XX i.«.st.wc.hnH
e makers. Bemg^'l^""'^;^ ''
he sheriff obtamed ■M^ uit.rife
them and the execution vlamt
,e e"veof thec,.«vtl.n,g.k,
lion Vlaintift- thereto,-, or t«
aw ■ and the elaimaut snccccl.l
ju motion to have the costs.
Lit of the moneys in couvt
•tion of the court \
Ihe contest at laxv.i. the va,
cuntyl
should liave W
the larti
ki;;the fund in e<mrt for their oj
it a special case to get the c^^^^^^
^ Vnder the circuuiHt.uees th. c(<
V 1 tobcDaid.butonlylKWC
...•deredtoDcpa ,f ;,,,,,*
,vK' and on teinis. -" p
'h^.'chamb. Ua-^^"lv"«sl""
,'bef.n-e making apifetinn fori
'oMe should make some mnui^
";theelain.otiu;nvi.eaj
Lav costs. 11"'^" '■-" • '
' -Taylor, *■'•'•-(<()•'/•
lantina..iuterpka,leri.>«e^
[diction, 13 bound to fcixc.
Ih. 108.— strong.
tetrs.:strs..»^
eCgijitervlea-l-F-
I VII Actios os Bonp.
L,ei.edun^aefend^^a
feStedrmider which tl.g
,w less amount to i)t
In obtained foi '^ .• ,r
allowing aefento ^
irhich i^^g-T'i o tl » the
|)cfeiulants(ljan^^^ :,,,,,!
Udavits statmg thax ^^,
b them the 8licnft''^^;^jl,e„
Le goods for moi<^ ^^'''
goods seized to the custody of tlie elainiant in
the same state as they were at the time of the
seizure. The proper mode, hoxvever, of raising
sueli a question would be in an action against
the slieritt' for withh(ddiiig the goods, and not
(m application to a judge for an order on him to
. , , ., , , , . ; restore tliem. MrCdl/iim v. A'' /•/■ <7 «/., 8 L. .1.
(^,„ls umg seized umlor ah fa. as belonging ^^_^. ^ chamb. -Draper.
iWemliiiits, one V. elaiined them, ami an in- '■
lador i^suo was directed. ('., with two The declaration enniplaiiied tli-it defendant, as
(ties, I'axe a boiul to pay tlie execution cred- sherifl" under a li. fa. iittlie pl.iiiititl's suit, levied
tthe ni'liraised X'alne of the goods seized, if ; upon a certain (|uantity of l)iieks made by F.,
ivsliiiiild get a verdict, or to produce them ! one of the defendants in the writ, wlicreupoii
ijn called upon, according to any rule of court i one B. elaiined them, and an interideader i.ssuo
rail;'e's nrder. The execution plaintiffs sue- i was directed, ami that until p.iynieiit into court
11 the issue, and sued the sureties on ! of the value of the bricks, or security given
irlKind, and the goods, wliich had remained ' tnercfor, defendant sliould continue in posses-
n,i.«e5sioii of the sureties, were seized there i sinn ; yet that though the money was not paid,
Irranotlier execution .against defendant. The i nor security given, defendant widiigfnlly allowed
irt, uii'ler these circumstanees, refused to ' thebrickstoberemovcil by B. nefendant pleaded
itrthe liiiiid to be giv >i up on ])roduction of i that the interiileader order xvas duly set a.side ; to
;;i«k1s, hut iiri'lc i.;i order on the obligors which the plaintill' replied tli.it the order con-
tained a clause protecting defendant against
action, and that it was not set aside for infor-
mality, but at the plaintiff's instance, long after
defend.ant had allowed the removal, and to enable
plaintiff to bring this action : -Held, on demur-
rer to the replication, that tlie declaration was
bad for not averring that the bricks belonged to
F., and that the replication was .also bad, being
no answer to the plea. Dufnc v. liiittau, 10 (,).
B. .3.S4.
Utliver np * '>ds, leaving them to plead
liiimiance to t .iction. S(;nible, that under
Joiiulitiou of the bond a tender of tile goods,
ik'intaiiy order made, wouM discharge them.
brfh /,('/. v. SiclcMn-l, '.n (,). B. 4.1.
VIII. MiscF.i.L.VNKor.s Casks.
'heriff, uiMin the plaintiff refusing to in-
uiiiv, applied to the court for an interpleader
|tr, v.liieli was granted. Pending the inter-
kii-sue the plaintiff offered the indemnity,
Utile .-lieriff sold and paid the proceeds to the
|i)iti8:-Htld, upon an application by the
yiii whose fa\-our the interpleader issue had
fiiiiiiil liy tlie jury, that the sheriff was
< to an .attachment for selling the goods in
ktioiiof the iijtcrpleadcr order, obtained at his
ince, and for iiis own protection. Jleiidernuii
Uh 5 Q. B. 58.5.
jpkintiff may he nonsuited f)n the trial of a
idiaue under the Interpleader Act. lii'y-
.n'mKiHw, 7 Q. B. 1!)8.
« ilicrilf seized upon a ti. fa., and the goods
! ilaimeil, ol)taiiied an interpleader sum-
Tlie creilitor did not attend, and the
l!«.siirilered to withdraw from possession,
fiieckiiiiaiit was not Ijarred from any action
tliini:— Held, that the sheriff might seize
He gonils under an alias writ, though he
[net have been compelled to do so. Dcmp-
Y\iru; 1 r. U. 189.— C. L. Chamb.—
MPlKal wUl lie from an interpleader issue.
Tv.AVv,., 18 Q. B, .170.
|>Ppealwill lie from the County Court to the
Tor wurts upon an interpleader as well as
Imtters, Fvthaii v. Bank of Toronfu, 10
IJi
["tiorari does not lie to remove an inter-
' issue from a county to a superior court,
kawritdoiraprox-idently issue the appli-
IwMiH lie to quash the certiorari, ami not
T«te.lcndo. Jonciv. Harris, 6 L. J. 16.—
[•umb—Burns.
P'Part of the duty of ii sheriff, under an
R "iteqileailer issue, which has been de-
i'20
An order to examine the defendant in .an inter-
pleader issue may be granted under the Adminis-
tration of .Tustiee Act, 1871^, sec. '24, the words
"action at law," incluiling an interpleader pro-
ceeding. Cnnntla Pcniidiunt Biiililiiii/ Sociotii v.
Forc.-<t, () P. R. 234.-
a. C. <i- P.
-C. L. Chamb. — Daltoii,
Where an interpleader order is pending, the
court w-ill in its discretion enl.irge the time for
returning writs in the sheriff's hands. Walkvr
v. Xik'i, .3 Chy. Chamb. .">!). — Taylor, Scrrclury,
Two writs were in the hands of the sheriff,
and while an interpleader order w.as pending ho
was served with a notice to return one of the
writs ; an<l not having done so, an application was
m.ade to compel him to mnkif a return. Under
the circumstauee.s the secretary enlarged the
time for making the return, and made no order
for costs. II).
INTErvrP.ETATION OP WOKDS AND
TERMS.
See Words.
II.
III.
INTERROGATORIES.
EXAMtN.\TION OF PARTIES AND WlTNE.SSE.S
OUT OF Court — See Evidence.
lNTERR0(i.\TINO Pl.AINTIFF OR DEFEND-
ANT IN Ejectment— .SV(! Ejectment,
Under Acts for Relief of In.solvent
Debtors — See Bankruptcy and In-
solvency.
Ill
INVESTMENT OF MONEY.
INTESTATE.
I. Administhatok of— ,SV(' Executors and
Admintsikatous.
II. AUMINISTKATION SuiT — Si'i' ADMINISTRA-
TION Suit.
III. EsTATK OK — Si'C DiSTUIUUTION OF EsTATK
-HkIK AND DkvISKE COMMISSION —
rAUTITION.
INTOXICATTOX.
Sl-U DUUNKKN.NKSS.
INTRUSION.
In an iiiforniation for an intrusion, the venue
may be laid in any ilistrict. Aftorni'ii-Gcnenil v.
DovLslndt'i; 5 O. S. ;UI.
A continuance in i)cisscsaion of land, under an
erroneous inipres.sion that it was their own, of
intruders, as against the King, after grant made,
is not a disseisin of the grantee. /)im: d. West v.
Jloiranf, 5 O. S. 4()2.
^Vhere defendant justifies under a third per-
son, he must shew his own title and that of the
jierson under whom he justilies, and also traverse
the title in the crown. licijina v. Ouuld, H. T.
3 Vict.
The plea of not guilty i)uts in issue only the
question of intrusion, ancl not tlie title of the
crown. Rt'ijiiui v. Munro, H. T. G Vict.
Under a crown grant the grantee may main-
tain ejectment against a i)erson who has been in
adverse possession for upwards of twenty years,
and it is not necessary that the crown should
proceed by information of intrusion in such a
case before the grant, or that tlie grant should
specially convey tlie crown's right of entry on the
laud to the grantee. Doc d. nizinrahl v. Finn,
Doe A. Fitziji'i-ahht al. v. Ckncli, 1 Q. B. 70.
Information for intrusion. Plea, not guilty,
with the words, "per stat. " in the margin. The
crown gave evidence of their title, commencing
■within twenty years before the information
brought, l)ut gave no further proof of the tres-
pass and intrusion, .and defendants gave no evi-
dence : — Held, that a general verdict could not
bo entered for the crown. Semblo, that the
crown was entitled to a writ of amoveas manus.
Attorunj-Gi'im-al v. Slitiilci/, It Q. B. 84.
The property of the soil adjacent to the shore,
and which is covereil by the waters of the lakes
or of mivigable rivers, is in the crown, subject
to the right of tlie public to pass over tlie water
in boats, and to fish and bathe therein : — Held,
therefore, where the defendant had encroached
on a portion of lake Ontario not far from land
belonging to himself, but not adjoining it, by
the construction therein of certain crib work and
piers, upon which he had built a warehouse, that
these not being natural accretions t(j his land, but
artificial improvements to the waters of the lake
or harbour (the harbour being then vested in the
crown) nnist be considered to be upon the soil of
the crown, and that the defendant was liable to
be removed therefrom on an information of in-
trusion at the suit of the crown. AUorney-
Qemval v. Perry, 15 C. P. 32J).
On an information for intrusion ;- Hcl
being no proof that the crown hail Ijiun
possession for twenty years, that im
guilty defendant couhl not give eviilini,.
under a crown lease. Held, also, tli-ittl
on this jilea was not entitled to jihl'i
once, but must go down to trial to sluw
trusion and damages, and because tliu.liM
under the plea might shew the iinwn
possession lor twenty years, and tlius
crown to proof of title. Bcii'mu v. ,%
(I B. 5.39.
In an information of intrusion the pmi
cess to ))ring the defendant into eimrti
of subpiena ad respondenduiii, diiecttii
defendant. Alturnvij-Lltfiicral v. J/r/,,,
P. K. 03.— A. Wilsoi'i.
This writ can be issued^iftertlie iiifurn
filed, and, in this country, witlimit thei
tioii being entered ; and a sjiccilic [inivcr
process is not necessary. I li.
\ subpcena ad respondeiidmii dircitn'
defendant, issued on an iiifoniiatiHinif Jui
need not be served fifteen days Ijufnrc
turn. 1 1).
The athdavit of service of the sulipn.iij
information of intrusion, is pmpcrly uiti
styling the attorney-generid '' infi)riiiaii
may be tested as of term, though siinl
vacation. J b.
To an information of intrusion tikil
Majesty's attorney-general for the iJiimiiij,
secutingfor her Majesty, defemliuitiiltaili
tlie lands mentioned were not oiiliuiinc m
or property in any manner unilur tlic ^
of the Dominion of Canada, Imt, on tliec*
thereof, the said lands becauie uikhi tlio i
of the B. N. A. Act, 18()7, and still an; t!ie|ir
of the province of Ontario, in wliiih tli
situated. Issue having been jciinuil mitlii
the title at the trial was gone iutn, ,iii,l
entered for the crown, with leave tdilefem
move to enter it for him : — Held, tliiit tli
was clearly entitled to recover, fur, aiu:
reasons, the plea set up no title in ikV
and admitted the crown title by statiiij.'t!
to belong to this province ; ami tin- liu
attorney -general for Canada iirdsutiitiii.
crown ccuild not shew that a Doiiiiiiiioi tii
necessarily claimed. Alli)nici/-(li'nii-i'\
33 Q. B. y4.
Ilemirks upon the form of, and ikkii
nisi prius record. lb.
INVASION.
See Crijiinai. Law.
INVENTIONS.
See Patknt.
INVESTMENT OF MONEY.
1. Money in Court, 1909.
II. By AdENTH, 1909.
III. By TRusTEE.s-5'cf TitfSKAxnTKj
IV. Infant's Estate— ;S'ee Inwni.
\ml]i
\n
JOINT TENANTS.
1910
tiou for intrusion
liat tiie crown
hivl
twenty years, tluvt n,vk nJ
couianotg.ycovwVua.,,f^
oasp Held, also, tlmtthtcn,*!
'Zlt cntitle.1 to jua.„K,,,
Mlowntotnaltoslu.wtkt,
antl becanse tlR'.liMi^hnl
shew the iv"wu ,<[
unci tli\i< imtt
uvi;e»
I. niiglit
twenty years.
,f of title.
lation of intrusion till' i.r.ttfiJ
the aefen.lant into, •.,.,«>> ad
responaeu-Uun, ^^"•^t;''' ;!
tlie
,d n
Wilson.
.uibeissueiV.aftertl.emloniutioii
this country, without the m!„n(
terol; andasyecit.ovvay.rl,.rs,
t necessary. ' ''■
(lenduni
lit iiitn'.jil
T. ad rcspondcuiuuM -liiviV, v.
fsuedonanintonnat.nni
'served tifteen days l,cl.a.tfc|
of the suh\>u'ii;\,u|
is yropi'vly luiiik-il
■ iiifiiniKiiit."
ivit of service
lof intrusion,
itS^r j^'K though ...1.
nformation of intrusion
- ; not ordiuUKO iiwi<
tilo.l kl
Uiiiniiiiiiyi,!
)r -
mentioned were i-
tv in any manner uudur be a-i
•tj^ in '"/pi i,nt, oi\ tilt w!
r^l^Stc^nieui-it!..
-^\"t."8li7.andstdlurotq.J
oC^nce of Ontario, in xvluA 14
"Vssue^^aving been joined uutial
fl!!! fvl-vl was gone into, m\M,
ec^^^vl^vith leave tn,U«
-Sritforlim-.-Held,tlKUtlia^
fcltited to recover, for, am..?!
ly entmea^^ „„ no title untal
it
set
tlie l)lea
.tted the crow
this vr '
ral for
up no
n title
ly st:itiiigt!iel
<•„ this province ; and the ladJ"
*",*!!l for Canada proseeutmg,^
SS^e^^?^^^ =^ ■'*"""""'" "'^
iv elaimed,
94.
■ks upon
s record.
the form of, au.l deic.un
lb.
INVASION.
See CBiMiNAU LA^v.
INVENTION^'.
See rATKsr.
, INVESTMENT OVMONt^-
lloNEV IN Court, I'JOJ.
A(iENTS. 1909.
. TUVSTS
JVTRU'ITEES-Scf
I. MONEV IN Coi'RT.
\8 .1 L'cneral rule, loans of money in court
' lit he made on p'operty on which there is
tviirii"' charge, hov . ur .small, unless all parties
fcterestMl consent. , I ik/jvici v. Jlcwjhstni't, 1
Jiv. Chamh. 347. — Mowat.
t Tlie cdurt will not grant a loan of money ex-
Lt t(i iicrsons of umlouhted eredit, .ajiart fronj
iiiiestiou of value of security offered Attur-
^Jhmnd V. AltJitiiilii; .S Chy. Chanib. 101. —
[iylor, Sen-vldr;/.
iivhere the apidicant was a young woman
■iiiiiiL' with her father, the applicaticjii was
rfiiseil. /''.
[Primii facie nionej' in court should be invested
ktliepuhhc funds ; but the court has, under C.
ll', C. c. \-, s. "-, a discretion to authorize
Lstiueiits on mortgages of real estate. AV
Mdii, Fnrnll v. JSntn/oii, (I 1'. It. •_'•_' 1. -Chy.
jji„li _Siiragge. On appeal from l^lolmested,
i'm:
IT. Bv AcF.NTs.
iciilMutifT entrusted .'i<r)00 to defendant, who
icihi receipt .slating that it was to be lent,
iSOO of Ills own, to one H., "being securecl
tksaiil H.'s storelnuises, " and in defendant's
le, ami hearing interest at nine percent, jiay-
.tiiilefendant, wlio woul'l a receipt of tlie
ircst, iiay to the plaintirt' her interest, !J45
year, ami at the expiration of two years
laiitto pay over to plaintirt' both princiital
interest ; hut defendant not to be rcsponsi-
lor the money except as paid by H. to him.
iiilaiit, who acted gratuitously, and, as he
il, muler the advice of a solicitor, tiuding
H. hail not yet obtained the patent, ad-
il the SSOO to H. on the security of a bund,
imisteretl, conditioned that H. should give
auKirtgagc on the property within a month
receiving the patent, or pay the money in
fears; hut H., after the patent issued, gave
ir mortgage to another person, and became
eut. The declaration alleged that defen-
promised to invest tlie money on the secu-
of a mnrtgagc on the storehouses, and
lilt ailmitted that this was tlie agreement.
argued that he was a gratuitous bailee
ami not shew n to have been guilty of negli-
; but :— Held, that it was a ease of contract
leilu[)iiu good consideration, the entrusting
Itli the money, and that having broken it
hable. Upon appeal this jndginent was
leil. The deiendant, it appeared, without
Liiiitiff's authority, took a second mortgage
the iirnperty, nearly two years after tlie
extending the time of payment for three
f'lr the principal and accrued interest : —
that this was clearly suoli a breach of his
lent, and sucli a dealing witli the xilain-
(inoiiey a.s to make him liable : — Helil, also,
plaintifl' should recover interest <at nine
it for two years onlj', and at six per cent.
iter. Per Patterson, J. , the agreement to
i" the money ujion the storehouses re-
deteudant to obtain a valid legal charge
Semble, that defendant, not being an
ly, ivoukl not have been liable, if, having
iken gratuitously to invest the plaintiff's
in a mortgage, he had instructed a com-
attomey to attend to the matter, and
Iponhis advice. Holmes et iw. v.Thowp'
Q.B.292.
A. received .Sl,'200 belonging to his sou-in-Iaw
R., and invested it witli other money of A.'s
own in the purcha,se of a farm, which cost
.^.'$.'200. It., with his family, went in iiossessiou
of the farm, and A., the father-indaw, by his
will devis(ul the farm to Ji.'.s wife and son joinlv
ly for the life of the wife, with remainder to the
son in fee, suljject to the jiayment of ."ir'-'OO to a
daughter of !{., and of ijiWO to another person.
It was assumeil in the cause that U. was at tho
time of the purchase and thenceforward of un-
sound mind and unable to give a valid assent to
the transaction ; and the court held that on that
assumiition he was entitled to the !?1,'_'0() as
again.st A.'s estate, and tliat the devise to hia
wife and siui was no satisfaction of the claim ;
and also that he was jirobably entitled to a
charge on the land for the debt. But the court
directed imiuiries whether K. wius at the date of
the transaction of mental capacity to assent to
the purchase ; and if so, whether he did assent
thereto ; also, inijuiry as to the oceiij)ation of
the land by B. and his family before the death
of A., and the value of such occupation. O'uod-
fclluw V. Ituliirhuii, IS Chy. 571'.
asdTjI
,sv.
ISSUE BOOK.
Sw Tkiau
JAIL.
Gaol amj Gaoler.
JAY'S Tit EAT Y.
Construction of, as to rights of aliens to in-
herit. See Dm d. Jlaij v. Hunt, 11 (j. B. 307.
JOINDER OF COUNTS,
.SVe Pleading at Law.
JOINDER OF PARTIES.
.SV'i Pleadini; at Law— Pleauinci in Equity.
JOINT DUTY.
Semble, per Draper, C. J. , that v. ' 'i the tort
sued for is the non-perfonnance of a joint duty ;
if the joint duty be not proved, the plaintiff must
fail in toto. Woods v. Mumcipnlitij of ]\'enf worth
and the Corporation of Ham'dtun, G C. P. 101.
JOINT STOCK COMPANY.
See CoRroRATioN.
JOINT TENANTS.
Realty — See EsT.vrE.
1. Ov CoiNTY Cm-HTs— ,V<r County Courts.
IF. ( )k J ti V isi I )N Col' i{T.s—.SV(' Division Courts.
111. In I'liAMi'.F.iis- -S'<r I'uAcncE AT Law—
I'hactici'. in l^yllTY.
Tlio 1(> Car. I. c. 10, wa.s iiitciidcd only to
<il)lily to tlic Co\ii't of .Star ('liaiiil)ur and otlior
cuui't.-i tilt roiii lui'iitioiitMl, and not to sui;li tiilni-
uixIh as tlh^ Ktcordcr's Court for tlio city of Hani-
iltmi. Tliurt'iorc an action against the mayor,
acting as ].ircsidcnt of .sucli conrt, charging that
he falsely and knowingly caused a verdict of
guilty to lie recorded against the defendant on
liis trial for larceny, and claiming to recover
therefor tlie penalty of ,t'.")00 stg., iniiioscd by
the (ith clause of the statute, was held not siis-
tainalilc, and, at all events, the record being
unreversed, would have ])rotccted the defeuilaut.
iitark v. Fon/, 11 (,». H. Sii3.
A garnishee sunimons Imving issued in a
County Court .suit, one II. opjiosed it as assignee
of the judgment dehtor, and in answer to his
claims, an alliilavit was lileil from which it woidil
appear that the judge was interested with II. in
his claiiii. lie tlieu declined to act further in
the matter ; and after several sul)8e(]Uent meet-
ings, signed a memoi'andum, stating as an addi-
tional rea.'~ou for refusing to proceed, the fact
that H. was his brother-in-law. The court,
under these circumstances, refused a mandamus
to compel the judge to dispose of the case. Jii
re the Jiidijc of llic (.'oiiiit// nf Elijiii, 20 Q. B. 588.
A rule to enter a nonsuit having been granted
in tlie County Court in April term, was <luly
enlarged until the following term. 'I'he judge
died l)cfoi'c the term began, and no successor
was apiiointed till after its expiration, but the
clerk of the court grant' il a rule to enlarge it.
It was argued in October term before the new
judge, who treated it as still pending, and gave
judgment :---Ilehl, that he was right. J^c^iu' v.
Ennnonx, 125 Q. 13. 243.
Held, that the fact of a defendant l)oing a
county judge, where the plaintid nnght other-
wise have proceeded untler the Overholding
Tenants Act of ISfiS, and thereby have obtained
a more summary remedy, is a sutHeient reason
to change the place of trial in an action of eject-
ment. AuuniiiMju-i, 4 1'. 11. 310 — C. L. Chamb.
— Draper.
Quicre, whether *he circumstance of defen-
dant being a county judge is not in itself sutH-
eient to give a plaintitl" the right to have the place
of trial changed on grounds of public policy. Ih.
As to the right of action against a coroner for
acts done when acting judicially. 8ce (Januv v.
Cvkmnn, 19 C. P. 10(5.
Throe of the judges in appeal being membei's
of the cliui'ch societ}', they held themselves dis-
cmalilied to sit as judges, except ex necessitate,
though no objection to their sitting was taken
at the bar ; but there not being a (luoruni with-
out them, they heard the case with the otlier
judges, in order that a .indgmcnt, I,.k;,i i„n„:,
of torm, might be given by tlie enmt, hL,,
Chiiirh Sucht!/, 1,5 Chy. 4.-,0. '"'
.TUDflMKNT.
Sl(lNlN(i AND KnTI:IIIN(1 LP.
1. Griurnlhi, 1913.
2. Xiuic pro tunc. 191(!.
JUWIMKNT IN DkKAII.T OF Al'I'EARASd
1. Il) Ejifllllvilt — Sff EjlKTMKNr.
2. //( Othir Airion.f~- Str ruii-ruEi
Law.
3. ]\'l<< II Fmni/ulciil
JuiXi.MKNT.
.S(r Fli
u:iin.E.i
111.
IV.
V.
VI.
Vll.
VIll.
IX.
X.
XI.
XII.
XIII.
JUWIMKNT IN DefAI-I.T OK I'i.ki^O,
Pi.eadino at Law.
Jui)(iMI--NT OF NoN i'ltOS., pJ17_
Ji-D(i.Mi;NT AS IN Casi; of XoNsriT.
1. iVIli'li illloiritl, I9IS.
2. Pnir/irc In A/oriii,/ or Siipmrlh.i t
Itiih', 1921. ■'
3. Ajiji/iriitidii to Di.f'-liiiriic ]tnli' M, I'd
ciiqitorii rni/rr/ii/yniij, VMl.
4. Prowi/liii/s lift, r I'l r,,i,i,li,ni Chilt
hdiiii/, 1923. ' ^
ARKEHT of JuiXiMENT, lO'.'l.
JUDOMEXT NoN (IliSTANTE YEHEHin
1925.
Judgment on Demij;ki:i! -.SV, I'i.kam
AT Law.
Reuistration ok .lro(iMFNT, 11)2;.
1. Vtiidor's Lien n.-! lujaind [tfifi.-iif
Jiiililiiii'iit.i—Src .Sale ok 1,av£i.|
vSettin(( Aside Judgment.
1. Powi'r of Jndijii in ('hmnhin, \
2. Delay in Applkdthiii, 19,'il.
3. Afliilarit of Af, rl/s, VXit
4. Ot/iir C'a.sM, VXVX
5. Jii Eji-vtiiieiit — Sn' KjECTJiE.NT.
(j. Si'conil Appliriitioii — .S'lc PkaitheJ
L.VW.
Computation of Amoi:nt Die, 193i
Satisfaction and DisnivmiE.
1. Sali-fdction Piccr, I'J'M.
2. Other Caaen, 1937.
3. Iielea»e of oni' of ncvral Jiiilfi
Dehtor6 — iSVt Release,
ESTOITEL BY FoRMEli VeKDRTOrJJ
MENT.
1. Oeneralli/, 1938.
2. Acliovn of Coiitnirf.
(a) Suk of Gooih, 1039.
(b) Artioiix of Covi'iMiil (ujiwlh
or Dirmoii C'.)iiiiCM,ur!'
and I'iuretiex, 1940.
(c) Other Cani-x, 1941.
3. Actions of Ejectinenl or Tori, ID
JUDGMENT.
1914
5 Cliy. l-'O-
:I)(;MK^■'l^
I) KNTKlilNii r\'.
/, VMX
IN iJKt'Al'l.l' UK Ari'KAUAME
„„,„^._,S.r E,nrTMF.Nr.
.,■ ^l,7(0/l.-.' — .Sf VuAl.TUt. AJ
l^raailukiil — ^<'' FiiAnni.ni
MIMKNT.
;. IS DKI'A' I.T 111
DiNO AT Law.
•r ov NoN ri:<i^., l'""-
;,.,- in M<"-i,iii or Supr"i'<''Kl
„h; V.VJl.
ithm to DUrlwr'r It'll' '.■<'Pe
r,„lrrh^fn,iU I'.'-l
OF 1.AND.I
,Wi'l'/.s ",'''"• l'"'""l''"''il
r OF JuiHiMF.N". Ilf24.
ENT ^»N- OllSTANTK VeRF.WII
25.
KST<.sDKMWKi;KU-*rri.W.I^
Law.
RATION OK .IrWiMF.NT, 19'2;.
dor's Lhn OA <".mnM ItyiM
i ASIIIK JCIKiMKM'.
,,.of J lid',': i» '''"""'"''' ^^'''l
1,,,/ in Applic't'""' 1031.
;,arlt of M^r-.t.^^ ^'y^--
„,• cm-s, m^-
Vij,dment-,S<e Kav..n!F.NT.
lUrVW.
IrrATION OF AMOfVr UlK, Wl
.•ACTION AN I. DlSHlARliE.
',.f(,w of on<' "J
'^eWur*-.S.'ellE..EASE.
PELBYFoUME«VF.umaOKJ
ENT.
io,.,s f/ Contrwt.
d Jid'i,
Actions oj
or /j)irix;o/i
and Sureties,
Otiier Cnxi'"
1",I40.
4. Other fiisrs, 1910.
5. /i}/( I'/ r,/' Jiiihjiiiint in Ejedmenl —
.SV'' IvIlU'l'.MKNT.
C. As a Defence, Iu Actions on Bills or
Xofrri^-Sie Bills of E.xt'iiANoK
AND I'ltOMIS.SOUY NoTICS.
XIV. ASSIONMKNT OF JUDOMKNTH, lO.TO.
XV. FuUKKiN Jl'IXf.MK.NT.SOU OlUJF.US.
1. Valiilitij and ej'i-ct of, llTiO.
2. Other Casex, liiriC).
,"}. Prinfof-Sef I'lviDKNCE.
XVI. Nil Tii:!. l!r.foui), l!)u7.
XVn. A(TI()N;< ON JCDIIAIKNT.S, lO.^S.
I XVIII. MiscELi.ANF.oi'.s Casks, 19.58.
XIX, In Pauticulau Actions.
1. Eject iiient— See Ejectment.
2. h'eplerin—iSee HeI'LEVIX.
XX. In CitniivAi. Cases — See Criminal
Law.
XXI. A.MEN1).MENT of Jl'DdSlENTS AND
Jldi I M ENT Rolls - See Amen dm est
AT Law.
I XXII. On Co(iNoviT.s— (S'cf Cognovit.
(XXIII TkANSCUIPT of JuDCiMENT— .SVe DI-
VISION Courts.
IXXIV. FHAII>I LENT Jl'DiniENT— ,SVfl FkAV-
mi.KNT JlDCi.MENT.
IXXV, I'KOdK OK, IN Evidence —. 5(^6 Evi-
dence.
IxXVI. When .IiDciMENT will bind Lands
OF Tes'iatok ok 1i< testate — See
E.XECLTOHS AND AdMINISTKATOKS.
IlWII. Stayino Proceedings on — .SV*; In-
JL'NCTION.
IXVIII, Maliitoi'sly TssriNo Execution on
—See Malicious Akuest, Prose-
cL'TioN, AND Other I'roceedinvss.
IX\1X. SeT-OFK of JUD(iMENTS— .See SFrr-OFF.
[XXX. Eevivevi! JuiifiMENTs — See Scire
Facias and Hevivor.
ly-ti.
lions of Ejectmntw
Tort, 19^
I. SuiNiNc AND Entering up.
1, Ueneralbj.
V\i'Amh}V\i Jiiihjtnents.] — Where a bill was
against ;iu attorney iu term, but the copy
I ilemmd of plea were delivered iu vacation,
itk [ilaiutiff signed interlocutory judgment,
lissessed damages before the succeeding term,
Itoarthelil the procee.Ung irregular. Fnizer
Won, 2 0. IS. '210.
[lis sufficient if pleas be filed in the proper
!, to prevent a plaiutifT signing judgment,
itk they have nrit been served. Mackinnon
■dwH, 3 0. S. 1()9.
luiterlocutory judgment in which the cause
pit properly styled is insulHcient to sustain
itice of assessment ; but if a notice of intcu-
ktomoveto set aside the proceedings be not
a before assessment of damages, the pro-
« will be set aside without costs. A llan-
I'Mnm, 4 0, S. 323.
It is not irrogidar to .ligu an interloLutory
judyniont in the ollice (if a deputy clerk (if the
crown in tlio country, when by rule of cdurt the
principal ollice in town is not open. J/dlt v.
Ilniitic, 5(). S. 705.
When a nidnth'n time to plead had been given,
and the plaintill' signed iMterlocutory jiidginent
before the iminth had expired, iiut aftci'.vards
entered a waiver in the interlocutory jiidxnii'iit
book in the crown otHce, liiit gave no imtiee of
the waiver to defeudant's attorjiey, and after the
niduth had expired, no plea liaving bii,-ii tiled,
signed interloeutoiy judgnii^nt again, iind asses-
sed ihiniages, liib proceedings were held rc.'ular,
the entry of the waiver in tlu! book being a Hulli-
cient notice ; but tlie interlocutory judgnuiit was
set aside on tlie merits, on payment of costs.
Wi/nn v. Pointer, E. T. 3 X'ict.
Where defendant obtained time to jiload on
the usual terms, and tlie plaintill' timk issuo
upon some pleas, and demurred to others, and
defendant obtained ,in mdei' to amend his pleas
or join in denmrrer, witli further time to rt join
"upon tlie usual tci'nis," and scM-ved both his
orders, but afterwards, .and witliin the time in
which he would have been entitled to rejoin,
without any order for further time, lili d ii spe-
cial demurrer to the plaintill's replication, upon
which the iilaintitl' signed interlocutory judg-
ment :- — Held, that tlie inteiioeutoiy judgment
was reguhir, the defendant being bound by his
order for further time to lejoiii after having
served it, and the special demurrer being in con-
travention of the imdertaking to rejoin uiion the
usual terms. Struthi/ v. CrouLs, I t^>. IJ. 400.- -
P. C. — Jones.
Interlocutory judgment sot aside for variance
between the declaraticm ;ind the incipitur on the
judgment roll. Pace v. Metiers, 8 (i. 15. 70.
Form of interlocutory judgment for want of
a plea to one of two counts given. Jalinstoiie v.
Johnstone, 8 L. J. 4(). — C. L. Chanib. — Draper.
Interlocutory judgments cannot bo signed
against an infant till after prochcin amvapimiii-
ted. Fountain v. McSicetn, 4 P. K. '240. -C. L.
Chamb. — Hagarty.
Held, that under sec. Tiiiof C. L. P. Act, taken
in connection with sees. 91, 92, and rule 132, it
is not a valid objection to an interlocutory judg-
ment, that the copy of declaration tiled was not
endorsed with a notice to plead. Corri(jnn v.
Dotjle, 4 P. R. 238. —C. L. Chamb. —Hagarty.
Other Cases. ]— The court will give leave to enter
judgment on a cognovit against tme defendant
only, the other being dead. yichalL v. Cartu-riyht
et III., Tay. 4(i4.
A final judgment by default for want of a plea,
signed generally in a cause in which part of the
claim is liquidated and part not, is irregular,
though the amount of the judgment be confined
to the li(iuidated demand. Westlake v. A bbott,
4L. J. 41).— C. L. Chamb. —Robinson.
Where plaintiff specially endorsed his Avrit for
.?2(i().()2i, and afterwards declared on the com-
mon counts, claiming £100, and then signed final
judgment fcu- £100, the judgment Avas set aside,
and leave to amend was refused. Amlerton v.
Johnston, 8 L. J. 46.-0. L. Chamb. -Dr.-vper.
A recognizance of bail to the limits is not
within the 8 & 9 Will. III. ell; and when
■;-r
JUDGMENT.
,■ i
, 1
u 'ti
I* IL 1 i.
there is IK) i>l('a, Imt a lircach in nHHigiied In tlic
(It'cHratidii, the iiliiiiititl' may entt t tiiial jiul;,'-
iiu'iit witliout any aHscssnicnt of daniagus. Mc-
Xoiiin v./!, ill;/, I'M). K 1<,»7.
Tliu failing to niiiik tlio jndgnicut \tiv\ivr "In-
ferior juriMiliution," was an irregularity which
niiylit lie waived. Svtii/iliiKj v. Welch, '2 V. I-.
C'iiaml). 10."). - liurns.
Where a vurdiut was rendered against four
defendants, hut one afterwards had juilgnient on
deniuiier for inisideading, not on the merit.s,
given in liis fiivoiir : Held, that jilaintill' eoidd
enter jud^jinent against three defendants, omit-
ting that one.. C'nrlic/t v. Sluptin/, 4 ('. 1'. (i8.
Where judgment was entered and exeeution
issued in Toronto, the original pajiers heingliled
in an outer eo\nity, the non-transmission of sueh
papers w.is held no irregularity. Fcllmi v. Eji-
ciilnrs i,f d./ilci/, 1 r. l{. .-il!).— (.'. L. (.hamb.—
liuhiuKon.
If a iilaintitl' refuse to enter his judgment
whert; defen<lant is ei\titled to set-otJ' liis eosts,
a, judge in ehamliers will limit a time to enter
the judgment, and in default allow defendant to
enter it for plainti!)'. Sinrliiir v. liiirrnf, W L.
.1. 4<». "f. L Chand).- Itiehards.
^Vhere all the proeeedings in an action pre-
vious to linal judgment have heen taken in an
outer eouuty, a judgment Rignc<l and taxation of
costs in Toronto : -Held, not irregular. Oiuv-
luill V. J\tn.i (111(1 ])i(i((l(ts Hand Co., 7 C. 1". l2!);}.
The orown offices should not he open for busi-
ness on Easter Monday, and a judgment entered
on that day was set aside for irregularity with
costs. TriiKt (111(1 Lddii ('(I. V. Dicbuoii, '1 L. J.
N. S. I()(!.— C. L. (hamb. - Draper.
On error frou) the ( 'ounty t'cuirt, it apjieared
by the record that after i.ssue j(jined a ven. fae.
was awarded, and then the postea stated an
agreement by the parties to leave the ease to the
judge, the decision to be looked upon as the
verdict of a jury. Afterwards it was entered
that "the said judge lia.s iletermined, rnd the
court is of opinion and has ordered," that the
defendant should pay to the plaintiff a sum
named. Then followed an entry of judgment
for that 'sum and costs :— Held, that the judg-
ment was erroneous, for no verdict was directed
or entered to sui)port it. (^Huere, whether the
judge had power to direct a verdict. Jones v.
timth, 1.':? (l B. 485.
Quicre, as to the pro])er modeof entering judg-
ment on a verdict in trespass against two defen-
dants, l)ut finding .'jsSOO against one defendant,
and. Moo against auother. C/isnold v. JIac/iellel
al., •-'() (i. B. 422 ; '25 Q. B. SO.
Defendant in the t'ounty Court obtained a
rule nisi to enter a nijusuit, with stay of pro-
ceedings ; it was not siirned by the clerk, l)ut
had at the side the words, " Rule nisi granted :
W. Salmon, judge." Plaintiff's attorney, treat-
ing it as no rule, signed judgment, but tlie judge
held it to be a proper nile and the judgment a
nullity, and ordered a nonsuit. On appeal by
the plaintiff: — Held, that the judgment was
irregidar only, and should therefore have been
got rid of before any other step could be taken ;
and on this ground the appeal was allowed.
Brown v. aline, 27 Q. B. 87.
An order gave a plaintiff leave to sign judg-
ment as on default of plea, and gave defendant
leave to plead by a certain day ;— IfcM, tliattl
plaintilf after that <lay could si;,'u jiiiIctk',
unle.s.M the jilea was in by the time liiiiitid «•(
though it actually was on the tilis wlnii jmi^
ment entered. Cdii.^Iks v, liidh h, d p. |; -al
('. L. Chand).- Dalton, (,'. ('. .i' /'. lliigiirt\\
A judgment may be I'cgul.-.rly sij^'neil on an
lictA verilicationc without a judges unlcr an
without the signature to the ii'limniisliiiiint in
ing verilicd by atliihivit. It is proper nn intt.i-in
jmlgnu'nt in such a case to set mit tlio iila
joinder of issue, ami relictil upon the rnjl. /;„/;„
V. Fi'((^er et. uL, (i 1'. 11. 207. -C I,. Clianih.
Dalton, ('. (.'. ,(• P.
2. Xdiic jii'd tioic. I
Where a cause had been jicndiiig fer scvra
terms, the court rcfusid, after disi-iiiu-.'iii;; tlii
rule for a new trial, to allow the pjiiiiitiil n
enter judgment as of the feini in wliidi th(
motion was made, in order to ohtiiiii iiiti.iistrti
his verdict pending the motion. J'dwilly /;,,,,]
ton, :t Q. B. 53. ' I
'I'he words charged were spoken at an (•lc(
tion, with reference to iihiiutiU's i|u;ililio;(tirii,
matter in which defendant had an inteii >t, :ii»
on which it is of eonse(|Uence to enenuragi' ira
dom of discu-sion. The evidence was (luiil.tfi
as to the .'.(.■u>c in which tliey were iisol, and th
d.amages large. The court, nmler the ciiviij
stances, granted a new trial on p.iyineiitdl'tc:..
The plaintitf having died before the rctiirnc
the rule nisi, itw'as made a eimditien thntiiitli
event of a second verdict for the jihiintitf, jiiji
ment should be entered as if such vurdiut haillje
rendered at the time of the lirst trial ; amltk
<lefendant should undertake not to assijjii trroj
Sn-<in V. Clellund, 13 (,). 11. .S:i5.
In dower judgment was given fer the tiii,i^
in June, 1S5(). in August the tenant iliod, r
the entry of judgment was delayed ljy th
eulty in pi'oeuring the altidavit of di.sliurstiik'ni
&c. l)emandant l)rouglit another aetinn again
the lieirs <t'- the tenant for dower in tlitsM
land, and in April, KS57. an applicatiuii
made to allo.v the juilgnient given in.lunctiJ
entereil nunc pro tunc :-- Held, tmi late. Sti
ford V. Tnieiimii, 2 1'. It. l.")4.— C. L thaiukl
Kobinson.
The trial in ejectment tiwd; place in May. IS
and a verdict was rendered for the plaintitr.
Kaster Term following, a rule nisi was iMM
for a new trial, but no cause was shtHii iii]
Easter Term, ]85(i, and in the nieantiiiii; pli
tiff died. Semble, per llohinsen, C. J.,
judgment could not be entered nunc [jM tuj
and at all events no writ of iiossessiun omilcl
issued. Per McLean and Uurns, J.J., tliatjui
ment might be so entered. JJitcn v. Cumd
14 Q. B. 483.
The courtonasubseipient applioatinn, nllo^
judgment to be entered nunc pro tunc,
suggestion to be entered of the death, ItaviB
to be afterwards determined whether the (|
P. Act, s. 248, would apply rctrosijectively.i
a 15 Q. B. 175.
The plaintiff, on 22nd March, 186(1, nbta
a verdict, and died on the iOtli June, hiviql
April previous assigned the verdict to oa
On the 24th September a rule nisi for al
19K>
certain day ;— Held, tliat tbo I
t (lay finiM si^ii iuilCTmitl
I ill by tlif tinii' liiuiti'il, ivbuI
wim on tlu' tili's wliuii juag.
„,i»x V. «""'■". '■' !'■ !'• "'^-
Atoll, C. C. .V 7'.- Ha^;irty,
L-l.o n-uli'.rly ^ijjwil on iuc.|
Vithoiit :v juil^i'^ "nliT, aiiill
to tlio ri'liiwiiiislimiiit i»;-r
It is jinnii'riiui'Uti'iiiig
set "lit till iilea,!
1511
JUlXniKNT.
1018
un
liivit
I'lVSO tl>
,„lrolii'taiilioiitliM-(iU. f;.i(i
IkuI lii'i-ii V^'ti'li'iy (.T sovrji
Vffusi'il, ;ilti'i- aisclwivgiii;; 1
trial, to allow tliu I'liimtull
.(H of tlif l''"ii i" ^^''"'' ^lij
J'ii, nviliT to ol.tuiii iiit.ii>t nj
i,',o the motion. P^.ir.lly.h.^
Han't'.! vcro svokon iit iin*
uiu'c to iil:ur,tilVs<iunliticitinii,
1 (k.fon.lant liiul an iiitin :>t, an
,f consc4"^>'^'' ^" "'"'""'T ila
ion 'riie t-'viil<-'ii<-'i: wua tlciilittJ
iu'wliicli tlifywiM-eiise.l,imlty
Till' uoiiit, uiiiUr tliu I'.mirt
".ianowtvialon v.'yiii';»t"'^'"*<j
l.aviuK 'I'^'-l iH-fon' die rrtiirnrf
t^vas«uuk■a>■onaitwmtlmtmt^
,enterc'.lasifsurlivci;aidlm.ta
,0 time of the li.>*t t™l ; amlt^
LihUuiaertak.' not t.. assign «rc
L?, 13 Q- 1^- ■^■•'"'•
In '\n.'n»t the tcimiit .1 iihI.hJ
la nie.tNvaHa.laye.lhytlio.l^
t n"llieatUaavitufa.shui«neul
,„,ri.nnightaiiotl.er action :H;aji
';he tenant iov aoxNoi in 1 1 »»1
Iciectnicnt took vlaec iiiMaj.
KTeiulcreafortliclili'int;.
PLminy,an.leii.s.;«^*^»;
lal l.nt no eausc was .it« i
Tl85(;, ana in the nicaiitin^ pi
Lible liei- It'-hiiis"", ^- J- ,
lUn;,t1.eentereaiiu.ici.ro j
llcLcanana^uii.. ■■ J3
[,e so euterea. Vnim
Las«1.sc.inentarifetio.i,«
\n\s actenmneaxNbantri
f would ai.plyveti"H«^''^''^'
Iff on 2''nA ?*larch. 18M., obti^
ml was ainfliargia, ami in Outohcr C. j>ro-
_,leilti> inter jiulgincnt. 'I'lio inaMtor rtifu.sid
ti)tiis mil eo.Mt.s, and on aiiiilii^atioii to tin; jinlj{t'
ltd ti'iiil the eaao he ifcaircd to lu'ar dufuii-
iljjit'jiittiiiiii'y. Notieu of ail aiii)nintnK'nt to
|(Mie till' matter was given, hut owin;,' to I'li-
kKiiui'iit iir to the ali.scnee of tlii' .judge fnyii
(IiiuiIhm it wa.s not argiu'd until I'Vlirnary, and
icertiliiatc wan granted in A]iril. Aiijilieation
lutliiM laaac in eiianiliers to enter jiidgnient
„m. 1,1(1 tiiiii', hilt tlu! Miiiiiincjii.s Ntood over hy
^f,.|it, una in Aii;4iist, IS(;7, (!., liaviiig hoeii
iiilj.iinti.'a the laaintiir'x adiniiii.strator, renewed
2ij.;imilii'ation in ehaniliers, wliicii was rufiiMed
(Htk'.'inl (Ictiaior. Tlie court, uin.itr tlie cir-
(Mistani'i', made alisolnte a rule to enter Kiieh
pliiiiii'iit, without costs. Xiil V. Mi.Mlll'iii, •21
O '.''"■ I'he aiiplieation in clianihura rupor-
fcUr. li. 14.-..
IV. .TnniMKNT OF Nox Pros.
Tlie ilei'laviition at tin
iunuii the inaividuals^ i
Iterilioil tliein ill their
■ liiraili was in their
suit of a corimration
oiniiosing it, and also
eor[>orate ca])aeitieH.
names as iiulividuals
lilv. Till' ciinrt liuld, tliat a judgment of non
M. niij^hthi'Migiiod and execution issue against
IlktBii" tlii'ir pi'iv.'itu capacities. Miwlhutit d dl.
\yl).il:..,i, Tay. 1 •-'■').
I It is irro^'iilar to sign judgment of mm jiros.
„;;t tiling the original jiaiicrs. Li/man v.
|t(/!>r, LjiiiKiii V. Loirjoy, 4 0. .S. 1,').
.\ jiiilgu ill clianihers has iiower to set aside
'uhjiitlgnielit. Ildil V. Hoi/lc, (i O. S. KiS.
I .\ iltfinilaiit cannot sign judgment of non pros.
mint iliT'lariiig when the plaintifFs jiave in fact
Wiro'l, Imt a mistake has liccn made in the
jieiif line (if them; the jiropcr course being
^Biivftii ainoud the declaration, or to set it
I ^Vlnre in assumpsit against several defendants,
JilVnilniit had obtained an order forpartieu- \
ovhii'li. alter several months, had not been
uiveml, tliL' iMiiirt refused to order delivery of
utiiiilais hy a certain day, or that he might
n)iiilL'iiii;iit(if non pros., on the plaintitl' sliew-
ttktall the defendants had not appeared.
Lnv. Ilmilltii, 1 Q. B. 3tV\— P. C— Macanlay.
I Jiiigmcnt (if non pros, set aside for an irregu-
IlityiiitlR' service of the demand of replication.
Illi'iiii- V. Smilh, 1 C. L. Cliamb. 1'2. — Maeau-
l&plyini,' after non pros, signed, is a waiver of
li irregularity . //;.
lAfter a lapse of four terms witliout any pro-
lings, a ilefeiKlant must give a term's notiee
jhij intention to proceed before signing judg-
lut (if mm iiros. Bain v. JioUoii, IP. K. 14.
" L Clianih.— Draper. See, contra, Culver
ih'h, Tay, 451.
Ilbe plaintiff after having arrested defend.aut,
' iued a verdict. The plaintitt' then obtained
I order to set aside the recognizance of bail,
^ to take the same off the tiles, on account of
Mteration made after filing. The ijlaintiff
1 >lso taken an assignment of the bail bond
n the sheriff, and sued upon it as well ; and
ttlant ill this action pleaded that special bail
(been entered in the original action, and de-
manded a replication, and defend.int not reply-
ing, signed judgment of iioii pros. : Meld, regu-
lar. ('(injKir \. Ill rM-hlii nj, 1 I'. It. I7"i. - -t.'. L.
Clianib. — liuniH.
In an action on a bill, di^feiidant denied the
drawing and endorsing, and alleged p:iymcnt.
On the ISthof .Matrh jiidgineiit of non jiros. was
signed for want of a re[ilie,ition, and on tlu; 'J.'ith
thi^ plaintid's attorney joined issue, and toidi the
issue book with notiee of trial to s.M've, when he
was informed of tlu^ jndgiiH'ut signed. Soiiio
understanding was come to as to the waiviM'of this
judgment, but was not put in writing, and the
alliilavits were eoiitradietory. The iilaintitl' took
a verdict, which defendant moved to set aside ;
and a cross rule was obtained to set aside tho
judgment ; -Jl'jld, that the jinlgmint was regu-
lar, because the jile.i of payimnt ri(|uired an
answer ; but tliat in fairness it ought not to have
been signed, and defeinhnits should have moved
to set asiile the notice of trial, being tlie tirst
irregularity. The plaintitl's verdict and defen-
dant's jndginelit were therefore both set aside,
without costs. Mr DoiiiH v. Kitrlmw, '2 P. K.
:i2ti.— (^ B.
In cases where judgment of non ]iids. is autho-
rized by ('. S. r. ('. c. 1.'?, s. ;i!l, it is not neces-
sary to obtain leave of the court to sign it. liowc
\-.Jnn-U, 14('. P. '244.
Semblc, on the authority of ! laker i\ dupii, 3
1). & L. 474, that issue in this e.ise having been
joined, there could not projieilj- have been a
judgment of non jiros. MiUir v. ('nrporfttion </
llmiiillim, 17 C. ]'. ol4.
A judgment of ncni jiros. regularly signed in
an action by a common inforiner f(U- a peiiivlty
will not bo set aside. MrCh ihhiIkui v. MrLioit,
3 P. K. 13.- t^). B.
Defendant on 2(!th ^larch, ISCl!, signed judg-
ment of non pros, against ]daintitl" for costs for
not proceeding to trial pursuant to a notice for
that purpose. Piaintill' on the 3rd April, IStUi,
<d)tained a summons to set the judgment aside,
which was made absidute on the l(itli .June, but
the order was not taken (Uit until 22n(l October
tvaiowing, nor served until the 2!)th. This order
was afterwards set aside by the full court as
having been waived by delay, w liether the judg-
ment was void or only irregular. The plaintiff
obtained a second summons to set aside the judg-
ment, &c., upon the giiuiiid that there was noth-
ing to warrant defendant in entering it ; but — •
Held, that the judgment was not a nullity, and
the objection to it cmild be waived, and that it
was waived by the delay. JI(ir v. J^om/lax, 4
P. K. 102.- C. L. C'hamb.— Kichards.— 5. C. 2G
Q. B. 3.57.
Held, th.at section 81 of C. Ti. P. Act prohibits
the defendant from signing judgment of non pros,
.after the expiriition of a year from the return (Lay
of the writ, and that he, as well as the plaintiff,
is prohiliited from taking anv step after that
time. Pair v. FoMo; 12 L. .T. 183. -C. L.
Chamb. — i)alton, (\ (\ A- P. ; attirnied on ap-
peal by Harrison, C. J.
V. Judgment as in case of Nonsuit.
1. When alloHvil.
[Bi/ C. L. P. Act, Hcc. 223, jiidf/mont. as in case
of nonsuit iti abolished, and hy sec. 227 a new prac-
MIS
■I.! '1 1:3;;?.
:-H:
JUDGMKNT.
till- i.H mliihl'iMhiil, hji ii<hirh, hi *"«»»• //(»• nliihili/f
lli'ijlii'l Id hi'iiiij till ni.ir In ti'iill irilliiii lliv Hiiiix
/ipirl/iiil, ilf''i'niliiiil 111111/ ijn'c hull .'II i/iii/n' iiiiHri
til hriiiij if OH, mill nil ilifiiiilt null/ i iili i' a mii/
ijinfiiiii mill nii/ii jiiilijiiii III j'lir liifi viikIa ; hiil Ihv
vitiii'l III' a jiiiliji inn,'/ r.i'li ml llir limv for /iromil-
ill;/ III Iriill ir'illi or irilliiiill tifiim. Till' ill lUiiillH
lllliirr llii' j'nriili r /n'lirlirr iirf ulill nf ll-ti- ilx linir-
ill!/ ii/iiili lli'il •nili^li/iiliil /'ill- 11; Sir I'liilli/'n
Airhlinltl, I :ili I'll., ml. Ill r. ..'.'/, irlifir llir olil
Jil'lirllrr /'.i i.i/ililiiinl, |
Tlio (t(3rc'ii(liint was liclil iidt nititluil to jiul^-
Illt'llt IIH ill CAlHii 111' IlllllSllit, wllUl'O a CllllMl' ClUIlt!
Ill) ti> lie ti'icil ill its turn, mill the iilaiiitiD' not
lioiiin riiaily, del' Ivnt coiiMcntcd that it .slnuilil
liu put at till! loot of tliu ilin-kt't, ami it (.'oiiM not
ufti'i'wanlM 1h' tiii'il tor want of tiinu. liniik n/'
I'. ('. V. Cnrrri, 4 (). S. ;{'_'4 ; Bunk of U. C. v.
Ih'lliinii'. lli./.iM.
Nor wlu'rc tlicrc had licen a trial. Wiirrni v.
Sni'illi, r> (). S. 7-'S ; Airhiliiilil v. lUimiron, 1 P.
R. 138. -1'. ('.- HiiriiH.
Nor whuic i\w jiidgu rcfusi'd to try a oauai'
iij>ou an iiiiiiiatuiial issiu!. llniltuii v. Stfirnx,
5 (l W. ()•-'.'). I'. <'. McLean.
Nor whcru tlir [iliiintiH' niadu a mistake in \\\n
notice of trial, and defendant, when lie wiw too
lato to give a fresh notice, jiointed out tin; error
anil refused to waive the objection. ]\'al.v)ii v.
St mill/, 8 (). li. ISO.
Nor when a record was (Altered and tlu^ ])lain'
titl"'s attornc)' fmeliore trying' it at defendant's
iiarticular request. Jonisv. drrrn, 1 1*. 1!. 1!(. —
[\ C — Draper.
Nor in nn action of replevin. Aiimlil v. Hi/-
i/hiK, I r. It. 13!t. -I'. (;. -Draper. See, also,
Britii'nv. Siniiii.iin'<, H). I'. .'{;](>. — (J. I'. — McLean.
Nor where a cause had once been niadi^ a re'
manet. D<w d. Ihi,li/i' v. Uomi', 4 (). K 174. —I'-
C— Macaulay. 7.V'/, v. MUIi-,2r.ll.C>l.-l'-
C. — llichards.
Nor where the c luae was not at issue for want
of a similiter or otherwise, or where it was not
shewn liy affidavit to lie at issue. ]yi/-iiiH v. IIV.t/-
hroiikr, K. 'I'. 4 Vict, I!, k H. Dig. •2.-|') ; MrJ.i/-
lan V. Siiiltli, T. 'i\ 4 Vict. ; li. k H. Dig. "i")"),
liiirtilmiii V. Liivnj, 1 I'. 11.3. — McLean ; (lihinn
V. Wa.-il'i/i./lon, 1 \>. I!. 41U.— r. C— F[agernian;
McCiii/iii' V. C/utliln; 1 (). K i>17.— P. U.—
Hagerman ; Pr!n' v. Ilrown, 3 Q. B. 127.— P. <?.
-Hagerinan ; Joiit.i v. Martin, '2 P. li. G8.— P.
C. — llicbarils.
Nor where no formal notice of trial had bepi'
given, but defendant prepared for trial, au;i in-
curred exjHi'se, liclieving himself bound to do !•■»
by his understanding with plaintiff 's attor icy.
This understanding, however, was not fully u;'.-
mitted. Jone-i v. Miirtin, 2 P. 11. G8.— llichards.
Nor where, after the cause liad been entered
for trial, two of the defendants gave a cognovit
for ilebt and costs, and the record was with-
drawn. Bank o/' U. C. v. Ward et at., 2 P. 11.
20C.— Richards. '
Notice of trial having been given and counter-
manded, a rule for the judgment was obtained,
and the plaiiititt' objected that the cause was
not at issue, inasmuch as no similiter had been
added, made up and delivered : — Hehl, that the
plaintiff having given notice of trial, could not
say that the cause was not at issue for want of a
similiter which lie liiinHclf nii;,'lit li n,.
Wilki.i v. Wilkin^, I I'. It. !l(l. 1'. c.
.See, alMo, /■Jlrii/r v. Ilni/nlnn, I >}. ];, •_>•<) j',''^
.loneM.
^Vhero a jilaintill' had given initice <,f tfj,,]
liounterm.ind, the defendant liiij,'ht ulitiii, .'1
fi'ir judgment without nt,iting in liis mIIU ,(it||
issue was joined. I'liiti' v. /in/;/.',/, | n |j .j!
—P. C.
I Jill
Lean.
"ii''<uaiitt..||.,ti,.;
• ■'^'/"'/"I'l V, //,
Where there wi'le two defiiidaiitM tlii
nient, for not going to trial
would not be granted to on
rliaiiiin il ill., 4 (>. S, M'Jfi.
Under peculiar circumst meet the fmirtw.niii
refuHo to grant judgniciit as in c;wu nf i,,,,,,,,!!
for not going to trial pursuant to iiotiou. I),„
V. Mrlhiu.jnII, ,5 (). .S. M-i. *
Where the clerk of assi/e refiiscil tn rwciJ
the record because it had liccn ulti'i'cil .iftcr ii l,;]
been liassed at tile erowii ollicc hy tli.' |i|iii,tiif|
adding a .similiter to the deftinliuit'.t plw. :iJ
entering in the margin the vcuiiv i;ii'ia,, ; . |'|,'i(
that defendant was entitled to ji|.l;.'miMit
case oF a nonsuit. ])ur d. M'l'/ii/j; y, J.i,
y. n. 1.— p. C— Draper.
thi
ve
IK
III, 1)1
After the jury liad been sworn, it n|iii(',ir.,l
the notice to examine dcrciidiint hiiij Ihviim.,.
too late, .■uiil the pl.iiiitill' h,niii" nn cvj,
wns unable to go on. 'I'hi' jildijc ili,tiiiiv<e,
jury, telling the |il,iintiH"s attnruey timt
might be (tailed togctlii'r when cdiivuiiieiit,
any time during tin,' assi/cs, ami the la.-Mi
The ]ilaintilf' was aftcrwinls ready tn;
defendant's attorney refused tn allnw tiiv
to be taken out of its order, ami it wa^inttiii
— Held, that defendant could iint liinviMMr
meiit as in case of nonsuit ; Imt as tiiu iihiinti
laches had rendered it necessary tn (li,Miii,<s
jury, the rule was discharged witlmut t„
Ta'i/lor i-i, al. v, Smitli, -2 1'. 1!, ■Jl.'), - 1', I.
Richards.
The rule for this judgment was (li,ih;iro
without costs, the iilaiutifl' liaviii-- hioa iel
defcnilant to rely upon him for the pie.iiniiie
of some eviilenee in the cause, and wliirli iLfi
dant subseiiuently, and after the ureiil I
been entered, determined not tn suml. /A<
Jl,r.^ V. JJlrk, (> g. R. (i2l.— P. ('. -Umper.
It is no suliieient ground fiirrcfLi,siii,'tlie jiu
ment that there are issues in law umliainwil
Leach v. Diilinai/r, E. T. 3 \'ict.
The rule for judgmeiitiis in case nf a iii
(li; '.barged unconditionally, wlieu if iipiioa
th:tC after notice of trial was given, imt witliiul
'line for countennaudiiig, an uijuiuti'm '
granted in Chancery to stay exeeiitieiiini
cause. Dm' d. Biirnxiil' v. /Ac/ ./■, T. T, 4|
Vict.— P. C— Macaulay.
Where the venue was laid in the eeaiitt]
rule for such judgment would In; yrniitiJ
two assizes had passed without iilaiiitill ]
ceeding to trial. Start v. BaWii, Jl '1'. -1
When there were issues in law ainl in tic J
plaintiff must go to trial within twn assi/(;j|
the issues in fact joined, and imt after tlieilj
mination of the demurrei-. Broa-ii v. /'i
I P. R. 212.— P. C.-Draper.
The court would sometimes make absolj
rule for such judgmyiit unless the costs oi
Ui20
I IV It. 1M». 1'. r, |)„,,.J
linynliM, I <,' I'' -:■' I'. (!j
JIJDUMKNT.
1922
1,;,./.. K.T.l!Vict
Ttttin tiino, ICdiT.'/i v,
IThivl «iv<-'U iintici' n( trial 1
(IftViiTiiiit iiiinlit uliliiuur„
cmtntAtiiiii ill liisn(lia,,\itth«i
i-hitr V. />'>'';;■'.'/, I 'Mi, 1171
:tlH|
mil
WliiTi' tlitr jury w'li'r ili!<i'liar;,'nl witliimt ^i^'-
|. ,jiiy vi'iilii'ti mi'l •'"'' pLiiiitilf dill not iiftiT-
' 'iinni''"'! • lIcM, tliiit ili^fciiiliiit iiiiiiii licit
iiiili;iiii'iit Ihimiisi! till' |il,iiiitiir
tii.il aii'iinliii^,' til tlm |ir.U'-
isnuc
IkuliiMtiirtiifiMUMl t
yiiiitlirtiifiMlcMl til ti'i.il ari'iinlm;,' tu tin
j „l tlif t'Diii't, witliiii two iiHii/.i'M .it'tor
,■1(1 two ilfl'i'inliUitstlm
in^ til ti-iivl \iur!<uiuit tMimtii'il
■ilirti'il tu Kill'. SjiivUr<l\, |i»
>. s. :»v>(i.
• clrciuust vnccM tliu cimrtwinli
luiininfiit ivH in o;u)i! iif v»\v\\\%
ti-i;il imr;<iKlut to Untiou. /)>(
(). s. :u-i.
erk of an«i/.i! rufunctl tn X'-
^j, itli;iill)i'rii!ilti'rfil;iftiritlu(
iio uniNvii iiHii'i- I'.v tli''l'liiiitill
tor tn tliu ilftVlnluil's |il
,„;vrgiii lUi; vuuiriMLU'i.w ; 11,1(1
was eiilitluil tu iU'l^^nKMit u\
— Draiiur.
ylrul1)»'t'nsvv"ni.it'M'l"'''''l«
iiiiiiiiif d.'frn'laiit!ii>'l''>':i-rvil
tlu' iiliiiitilV linvin,^ iM 'Ml
HiM.n. 'I'll.' jii'lH'' ili-Mi'-'ltU
1,,. iilaiiitilVV uttnrai'V t.iittliL
lt,,l ti.^^.'tlu'r wIkmi nmv, uK'iit, I
im tii(^ nx-izi'». iiii'l th^l■;l^■ukd
,vriHaftLT\viiril<ru;vilyt.i-nnii,H
tti.nu;y v^hMcA tu iill"\v tlw '
iitof itsonU'i',aii.lit\va-^ii'tU-i^
,lcfonaautci.ulilnutuiovohir;'4
,(. of iiiinsuit; but us tl.Miliimtil
lukiTil it iifrc«s:vv.v to iliMinss I
,, ^va. ilis.luvunl ^v't ;"»\,^''
or this ju.l-ui.ut^ w;vs ili.anr.
the iilaiiitilV liiiviii.; lieou HI
Lly u\Mm him for th;' V^r'-'H
(ncoiiithc.ausc, ai.awhKli.cl
eiitlv, ivu.l ivftiT the if""lL
.iktormiiKMlnot ti b.iJ'I. IhtM
Vre arc issuo. in law uu.Uai«i^'il|
L (;/!■, K. T. 3 Vict.
co.;:Utionall,V, ;vli^'>' • ^ H
lee of trial was givea.lmtNu.tt|
Ivtenuauiliiy an u.j.m. 'U^l
hancery to «t:w o " ;" , "^
1,1. B,ini>'i'l' y- /'"'" '• '
-Mac:iulay.
ve«ue^vasUi.li»tl;e2'''
P l-asscil w^lu;.t ff^l
fial. Start X. B""'"' ^-^ '■'
,^totnalwitUiutwoas.uc^
actjoiucilananotat^ ,
-P. C. -lJi-iH«-'''- ,.
,ouia BOiuctiineH ^«^l^
judgmout unless the tu>ts u«
Iji*'
WliiTi' tiii'i'" aru two (Icfi'iiilantM, ami oiiu
g;,!, til ii^Hii". ami till' oilier allow i iiiili,'iiiiiiit
liiliiiilt, ami the (ilaiiitill' (lin'< imt |irorcril to
Itfiil iiiiniiaMt to mitiri', tiic M|i|iliiMtioii Inr tlii«
Ljiiuiit L'aiimit lie liiiiilii liy liotli ili'IrmlaiitM,
{j,'„ii|v hy tlu' oiii' who iiail iilrailiiil, Uniii-
U;lxj'l,i'llllll''i'l'Ort III., .') (,t. II. •_'7<>.
Stmlilo, that t'vcii in n joint artimi of aHuiiniii-
■itMoiif several ilefemlaiits jointly .-.iieil niiulit
Ijivcfiii'jililKimiit as ill ease of a nonsuit. / li.
wkiKKSiiiii/'ii'ilv. Jiiii'liiiiiiiii (■/ III., 4(>. S. .'I'.M!.
I fl'in.n ijsiui was not joineil till ahout tliu
liiJilliiif .\ugiist, ami the iilaintill' mil having
"bkii liiitici' of trial fur the ( li'tolier as.si/.es fol-
lanwi ilofonilaut imiveil in tin; Noseuilier torni
_iiitlioiiiil"iii"-"i't : Itulil) too aouii. Curitli'r v.
IfriN/, r. li. li. <i4:<.
I' Prittlki ill Moi'iiiij HI' Siijiiniiiiilil the It nil .
The lilini; the mil with the elerk of the erowii
ltwik'|iiity> was a sullii'ieiit (Mitry of the issne
111 itoiiiil tu euahle a iiliinlill' to move for
tiuiiit :is in ease of nonsuit. MiLniujIiii v.
\il}>K\< Tay. Itt'J.
So».M the entry of thoinciiiitur upon the roll.
■,,:i\.SIiini-l, Tay. 141.
.\ iiiitiLe of intemk'il motion for juilj^inent
lint siiiiply the placuof a rule nisi. Siiiitli
LViiii"'', lay. 4(iH.
Wlitri.' ill answer to a rule for the jmlgniont
libiiitilF tiled allidavits alleging an agreo-
it witli ilufoiiilant to refer the eause to arhi-
itHi, wliieh was the eause of his not iiroeeod-
tiiiv; WiH given to defendant to answer those
ivitn. Skill V. AcUiiml, It. T. 4 Viet.
lOiarule fur the judgment time was given to
M iiii atliilavit from the plaintilV, who lived
Itiiliituwu, that the suit was settled, (iihh el
iv.Airfi/i, 2 C. L. Chanih. 4. —Draper.
lAWi'iiiliint may miivo for judgment as in
Mliiiiiisuit without giving a term's notice of
«iliiig, althuugh nothing has been dune in
cause within four terms. MrConiikk v.
Kmi, 1 P. 11. 3.")8. —V. v. -riicluinls.
I i)ijj|i>(i(ion.y ?o DUfharije Uiih- oil Pinniptori/
Uiiilirliihiiii/.
lt>wral/i/.]-The niution must he nuide in open
pit, ami be supported hy utiidavit. lloUhtef
ISanilmrt, 5 U. S. 719.
Pliere a jilaintilf shewed cause against a rule
[ jtilgiiitiit as in case of a nonsuit, and tiled
Ijiitj tiititling him to enter into the peremp-
Siuiilertaking, and also urged relief from the
»oi the (lay, defendant was allowed to tile
Bvits in auswer, the court ruling that he
121
wan to he eoniiideri'd in the k ime position an if
the eoMts had lienn ileniamli'il mi a rn ii.irati' mo-
tion, llin-i- v. //, niiiril, 'V. 'I'. Wk I \l t. I'. C.
-Maeauluy.
Tlu! rule euntainin^j the peremptoiy nnder-
tiiking might Itu taken out hy defcn l.iiil alter
term, thiiugli moved fur liy plaintlH' m lerni, and
after the time therein limited fur tlie plaiiitill'
taking' tlm eause dim n for tn.il. /I'u.i \ . .1/. i/i c^,
(i V- ll. •!-■-■
Till' iijijirii'iitinn ir,ii iiriiiili:! ir'lliiiiit iint.i,] ■-
When owing to delay ueeasioneil liyan ,ipplira(ion
of defendant, the pl.iintiir had lieen pleveiiteil
111. in entering his reeunl foi' tii d on tli • loiiiiniH-
. I'lii day, and the defendant refused t nseiit
to it.s lieing afterwards entered until the plain-
tin's witiUH.ses h.ul giinu home. I'liiiiiiinui v.
Wiiii-r, 4 <>. .s. ;{;».•).
j Semlile, also, where n plaintill' had heen pre-
] vented liy defundant from proeeeding tn trial.
/;-/. d. .hull i-.'iim V. Tiiilil, I (,). II. L'Tlt.
.So where a witness atti'iiding the ;iHsi/es for
1 the pluiiilill was seen to converse with defen-
dant, mill afterwards shewed an uiiw illiir.Miess to
I remain, and left tho assizes. Ilnin v. i >' liniiiiliiii',
\'.\(i. W. 178.
Where a plaintill'did not proceed to ti i d pur-
suant to notice, owing to the alueiiee of a in iterial
witness, and liefure the term ri'iiuested defun-
I daut's attorney nut to put him tn the expense of
[moving for jinlgnient as in o ise of a nonsuit,
[oH'eriiig In enter into a peremiitury nmlrrtaUinj'
[ tu pay the costs for nut proceeding to trial, anil
j to satisfy the defeiiilmt that he Would lie alilo
to discharge a rule for a nonsuit, the rule was ilis-
chargeil on the peremiitory tiiideit iking, tho
'plaintiH' Jiaying no costs, e.xcciit tliosu of not
[irocii'iliiig tu trial. Ihn- d. Jh' I'l'mv ,• v. 0'la.if,
4 g. 1!. oj.-i.
The ii/ipHrii/imi irii.i ijriiiili il nn pin/un nf iii'fii.it.i.'\
— When the cause was called on for trial tho
jilaiiitiir was nnalilc to proceed, his witnesses
lieing aliseiit, and the case w.is struck out.
.N'citlier defendant nor his witnesses were then
liresent. On the return of his witnesses, the
plaiiitill' moved to restore the case to the docket,
having previously notilied defendant of his inten-
tion to do so, hut ilefendant refused to consent.
It was not shewn that defendant's witnesses
were in attendance at the time of such rcfus.il,
and defendant swore that he believed some of
them had returned home : -Held, tliat the rule
conld only bo ilisch.irged on p.aymeiit of costs.
Fiiinx.J'rrri/, 1 P. U. 12().— P. C.-Mc-I.ean.
So where a cause having been called on for
trial, the parties not being ready, was placed at
the foot of the docket, ami several other persons
were similarly treated at the same time, tho
learned judge stating that if they were not after-
wards disposed of for want of time they should
not be made remanets. Wliili' v. linnni, 1 P.
R. '270; Kit dm III v. VoUick, I P. K. -iOL'.— P. C.
— Uichards.
.So where the plaintiff withdrew his record
in conseijnenee of the ruling of the judge at nisi
prius in the ease standing next before it, and
involving similar points. And the court refused
to annex as a condition that the evidence of a
witness in that case, who would be rccpiired in
this for the sauie purpose, and was about to go
1923
JUDGMENT.
10;
abroad, slmtild 1)0 read from the judge's notes.
O'uiiihrliKiii rt III. V. Tiiijliirit id., 1 1'. H. 37(). —
P. C— IJichards.
So Mhcri' it iippcired on affidavit that on
some siii'cial (urcninstanct'stlio jilaiiitili' withdrew
tlie record, acting hon.l tide on counsel's oi)ini()n,
•without ;iny statement of tlie eireumstanees.
Aniinlri:iiif V. Jiiiijnmiii, 1 Q. H. 414.
Vayment of the costs of the day, and of the
application for judgment, may be made a condi-
tion ijrcicdcnt to tlie })laintill'.s being allowed to
discharge the rule for judgment, and to go to
trial at the next assizes. If no costs of the day
have been incurred, that portion of the rule may
be considered as surplusage ; the rule need not
be amended. -/iVw.i q. t. v. Afei/rrs, (i {}. 1>. (i22.
4. Priiriril'nhj.1 ajlir Ptniiijituri/ Uinhvlaliiuj.
A rule for judgment having been discharged
on entering into a peremptory undertaking, and
paying costs, the court in the following term, on
iillidavil tliat the costs were not jiaid, made the
original rule absolute in the lirat iiistaii'e. liir-
Ijill v. W/litrllrai/, Dm. .WS.
The rule for judgment after ])creini)torv under-
tukiiig and default was absolute in the lirst iii-
stanee. liriilinm \. Ulinir, Dra. 113; MnMiii \.
(Jarroir, M. T. 2 Viet., R. & H. Dig. •-'oS.
And the court would not, nnless nnder very
special eireumstanees, set aside such rule. J/ir/-
thi'irti,,!! V. <,7((.s.s 1 (,). J{. niC).
Tt w.-.s not necessary that the rule alisolute
should be served, lb.
The phiiutilf could t.ak6 no further steps until
payment of the costs ordered to be paid ; and if
lie did proceed, as by giving notice of trial, the
defendant niiglit treat such notice .as a nullity.
J)in d. Mr.Milt,,,! V. Bvoik; 1 (l 15. 482.
AVliere after the rule luid been discharged
upon the i)eremptory undertaking and payment
of costs, the plaintiff afterwanls obtained an
order to .iineiul his declaration on ji.ayment of
costs, and v. ithont jiaying the costs in both cases
served the amended ileclaration, the court set
aside the tiling of the amended deel.aratioii with
costs. Miiihlvck V. Curlief, 4 (i. B. .'."iT.
Where the plaintiff, though he had given
notice of countermand, dischaiged the rule f(U'
judgment on the i)ereniptory undertaking, on
paying not only the costs of the applicati<ui
but the costs of the day, and witluait paying
anj' costs, treating his own rule as a nullity,
])roceeded to trial, the court set .aside the verdict
without costs, on the ground that though the
plaintilf could not be compelled, where he had
countermauiled his notice of trial, to pay the
costs of the day, and that the rule so far was
insensible, yet that the conditions as to the costs
of the application being good, the whole rule,
gr.anted on the plaintilf's own motion, could not
be disregarded by hiiu afterwards as a nullity.
J{ofi.'H[.t. V. Mi-i/irx, 7 Q. H. ,S74.
If the costs are not paid before the ensuing
tenu, the original rule nisi will be made absolute,
though the rule for the peremptory inidertaking
has not been taken out l)y either party, or any
costs taxed, or alloeiitur served by defendant.
Proiiilfiiot V. Jloldoi, 1 C. L. Chanib. 22.
Maeaulay.
The jilaintiff having failed to iivikccI tn ti
upon a perem]itory undertaking, (liiViiiljiiit 111,,,
to make .absolute the original iiii,ti,,ii tnr u,
nient as in i;ase of nonsuit. 'I'Ik; iiLiiiitilfVl
obtained an order to discontinue on iiiivniiut
costs, but did not t.ake out an aji|„,iiit!iic.|it
tax. Pcfendant gave noti<'c of t.ixiitinn 1
not attending the costs were imt taxed. "]
pla,ntiff on this L:round o]>piised tlic .n,],)!,',!}
for judgment, iVc. ; but llclil, l,y Mil.ian
that the ]ilaintiti' should have taxed miiI imid'
coiHts whether defendant atteiidiMJ m' imt . j
that defendant was entitled to jiidemeiit ii
case of nonsuit. />(«' Mrijir.i v. Hu/irrixnn \
L. Ch.amb. b'lO.
On motion to discli;i"ge the iipreni]itiirviiii,l
taking and make absolute the rule fur jiiili;iii,
the court thought that the id:\iiititV liiulsh,;
a snrticieiit excuse for ii' t going to tiiul ; Imt
thejilaintitl'liad notajiidied in due time tueida
his nndertaking, the motion was jjiaiited (,i
on p:>,ynieiit of costs, .and on plaiiitill".s "ivin,
new undertaking to try at tlie next assiz
Colliiiini il III. V. llroini, 1 I'. U. 38.1.- liieliw
Such a motion ni.ay be met hy slipwing tl
the abstnice of neeessaiy and material witneiis
whose testimony the |il.aintitV emiiil nut i,iwii
prevented hisgoingto tiial. Mn'ithtuil s.lim
3L. .1. 4S. V. 1.. Chamb. limns.
AVheretlie ])laintill' had not ]iaiil tlieeiist,«,l
explained satisfactorily the neglect tcifjotatr
in j.ursuance of his undert.akiiig, the eniin i
fused to make absolute the rule l(,r jiidemei
the plaintilf paying all costs and eiiteriiii; iiitc
new undertaking. i'liyuir \. Mi:l)t,mii'l,i
H. 71-— Hichards.
VI. AltHKST OK
[Sri- C. L. P. Act, .v,r
JilKi.MENT.
<. Ml M^, ,U:i.]
The emirt will not make absidute a rule n
to arrest judgment, though no cause lie slien
unless the party moving shew some siilx^taiit
objection to the record. Moffat d al v. J/crt
It III., Dra. 11. '
.Indgnient cannot be arrested after jikIl'Ihi
has been given for the jdaiiitilf on a deinir
Wraijij v. Jan-U, .5 (». S. -IW.
In an action by husband and -nifo, iiidi;m(
was arrested after judgnieut liy default
damages assessed on the dcelaratiuii geiu
some of the counts being bad. Slmlnrij it
ro;-«(m//, () O. S. '-•■W.
Case by husb.and .alone for negligent .nml
skilful treatment of his wife in cliild-liirtl
lirst count w.as bad, for merely stating iieg ^
without averring any damage aeeniiiii; thi
from. The secoml count adeged that hy iv
of the defendant's inipniper treatment ei
pl.aiiitift"s wife, her life was cinlangeied, am
was much injured, being a gumn.! nf aeti
which the husband couM not sneahme.
third count combined di.icrent caiise.s "fad
s(mie for which the husband slidnlil siio *
ami others for which the wife should lie j"i)
—Held, that the proper course was te arres
judgment, not to awai'd a venire de novo
V. Cfirikr, 11 Q. H. 77.
It is no hmger the course to arrest jmlg
on a genoral verdict where one of several d
aviug faiV'il to pvuncd tii tri;iV
y iintTtTtiikiuK, lU'fiiuluit ninviii
.! till! (>riyiii;>l u\(aii.\i fdv ;,i,lg.|
,f nonsuit. _ 'riio vliiiiitilV tin-
r to (Ucrontiliui' on )i;iyini'iit nfl
lit take out iiu ajiiiciiit'iiiiit tol
t mivu notice of tuxutinii, U\i
lie costs were not tuxcil. Th^
.'i-ouml oi>voscil the iiiii'licituin
■ j; ; Imt llcl.l. l.yMri,,';il,,.I.,
V slioulil liavc taxi(\ Mill \«iiltlid
k'fouilaut attcuilcil nr imt : awl
was t'utitloil to nulirinciit as ii
/>(«• Mf'lJCI'" V. Ituinflsiiu, 1 OJ
I (liscli;i'-v'c the pcrcnii.tniyuu4.rl
;,. absolute the rule for jU.lLiiuiitj
rht tliat the vhiiiitilV li:iil sluMTJ
use for 11' ' .v'oiul; to trial; Imt a(
1 not api'licil iu <hie time tmiilarS
ur, the uiotion was t;rantiil inr
■"costs, aii«l on i.liiinlilV's giviiij;
hic to try 'it the next assizei
V. llroin,, \ v. li. :»3.- Ui.l,;mK
on uiay he met hy shewing thJ
■ necessai v aud uiatei'inl witms^er
,uv the vhiii'tit^' euulil net v"' ■un
.'oin^to trial. MtuUawl sAU^trA
A 1.. Chivuih.—Hurns.
vlaiutilV ha.l u<.t paid tluM^nftOiJ
iVactcu-ilv the nejeet to gf t»tr
, of his uu.lertakui,;,'. tlif o.uvi
lie absolute the rule for juagmd
..vviug all costs au.leuterms;mtol
ikiug. Va*},ar\. Mdh,nM,l^
lanls.
AllHKST or .!' t'OMKNT.
/.. /'. Ai-U ""'■•'■ ■'•''-J' -■'■■'•"''■'•1
kvill not uiake ahsohite a nik
li-ui.'nt, thoM-h no cause he shoM
lu-tv moving sheu; .onie .ul.toti
',hereconl. Mnlinl it al y. ih'^
1.
1 cannot he avrestea after jmipnl
ven for the phviutiti en a acuun
\rn^, 5 O. S. -.>••.
L„ 1,V huslema ana vi^ j«j^.u<
h after ju.lgnient hy aetanlt.
tsse-lonthe ^^^^f^^^^^,
cmnts being had. .s/.h'-';/ ■' "^J
n. s. -jr):?.
Lbana alone for ue.ligeut|^-lj
lnentofhi»witen.el.ia-hirtl. 1
Tasba.l,forn.erelystatu.f:noghgJ
I • .,„v a-iuiaee aecruiiii; tM
|,f^s;:s- >
|lQ. «. 77.
Lger the course to arrest]^
V-eulict where one of beNU,.u
judg:.ilont.
192G
I, lad Imt to order a venire de novo. MunnhKi
\\l>,'Miif <il., 3 V.V. 89; 0(,v»,-( V. /Vnv//,
]|(,>. B. ;*'•'•>; Stcphi'iin V. Stfjihenx, 24 ( '. T.
I tit'
.ctidii hy lin.sband and wife. First count,
|i''i„j,ivv to the wife by falling over a bridge.
['(j^.,,,,,! count, for injury to the husband by lo.ts
III the wife's society, exjieuse of her cure, and
lA,i^i,i; also the loss of the horse and cutter in
lilikli tlu'V were driving:- Held, that the de-
lyalits weri' not entitled to arrest the judg-
liriit 11" fke giound that the damages had not
r ,.im.i,;iratiay a.->sessed upon each c:iunt. ( 'inii/i-
Ii,:M «.'■• V. ('''rnit ]\'i.iUrii J{. ]V. Co., '20 C. 1'.
\»-
J rule to arrest the judgment becaiise the
lii.'jra'iiiii commenced in trespass on th(; ease,
irKtiiiii heing tiTspass, was refu.sed. linn'Inia
I, jKV/iK, T. '!". ;> & 4 Viet.
llilil, no i^round to arrest jiulgnu>nt that the
lijnliiHiia tlie goods liable to forfeiture for non
lavnii'iit ef iluties on several counts, some of
liiidi were had. lii'uhiii ex rvl. AUonu'n-Uciic-
\is. lU-imMI, S (l ii. r)4t).
\\,.\>\i imputing to the idaintitV the having
^ittiiii fal.se oath, but not in any judicial pro-
silint' or on any occa.sion where it would bean
liJeik'i ill liiw, are not actionable. Hut where a
Kdiisueli a cli.-irge gave .i"i 10s. damages, the
it'nalitsed a new trial in order to give tlefeii-
lllliis tests, but arrested the judgment, lloijlf
\M[\'.>, 10 Q. y>- "'18.
Ditjuagment was ordered to be arrested, un-
stlitlilaiiititf was allowed within one nioutli,
kllffliilicrs, to add the necessary suggestions
[ifcikrlaratiou under the 'JlTth sec. of the ('.
LP. .\ct. Such amendment is not allowed uu-
stlit iilaiiititV, on .ulidavit, shew reasonable
pmil fur lielieving that the tinal decision of the
ii;i*t!uii will lie in his favour. Kirc/i'ilfrr v.
/«., U (.'. r. 4()7.
I Mil, luiilcr the Law Reform Act, IStiS, see.
|i, Hiliss. 4 ct r>, as amended by ;)|{ N'ict. j.
!,;i..tliis lioing a (.'ouuty Court case tried at
iun/xi, that the motion to arrest judgment j
lipriipuriv made in this court. EiliiniwU ij. t.
"i«;(,;)5g. B. 4!)ri.
:lil. that aefeudants were not entitled either
Iwiiuittheiilaintill'sorarrest judgment, on the
Itliatthe venue was iinjiroperly laid ; Inu
Utlity should have demurred to the dec!, ra-
Inm V. Vvrpdra/iun of Jiriu/funl, "JJ (.'. ■
US. I
IVll, .IriHiMKNT N(IN Oll.STANTK VkUF.DUTO.
iSeither the declaration nor replication in tres-
I'l-cf. against a .'sheriff charged as ai' iiijv.ry
ibakiiigef the outer door," and the plea
liiyiiig uiuler a writ of H. fii,, on grounds sus-
1 at the trial, eontaiueil no allegation that
f nuttr doer was open :"— Held, that the
BtllTOiild net for want of such allegati<in
f« k judgnient n<,n obstaute. .--''(ni.t v.
;'*",:fQ. R 118.
ppliatidiis for judgnnnt non obstante or to
' Hgiiient were not I'luitcd with us iia in
. to ti>e tiiat four dayo of the term next
•the assizes. Pori/ \. lilhmond, « Q. P..
' But now they are, by rule 40 oi" T. T. l.S.'iti
A. was in possession of the premises in cpics-
tion, without title tiiereto. H. came to him ami
represeiiteil himself as o.vuer of said jiremises,
when in fact he was not. A., by writing, agreed
to lease from H. for five ytiars at a rental of €4
lOs. This writing was signecl by .\. alone : —
Ibid, that uniler the eircnmstanei'S A. could
dispute H.'s title to said jiremises on the grounds
of fraud and misreprcseiit.ation. Meld, also, in
such a case, wdien the jury found for the plaiutitl'
U]ioiia special plea setting up fraud in judeiiiiiig
such lease to bt! signed, and .mIso for vlie defendant
upon the issue of non tenuit, tlwu llie defendant
was not entitled to judgment non obstante.
Lijih'tl V. Piirk-liixnii, 1 ('. 1'. 144.
In an action by a jiayce against the maker of
a note the defendant jdeaded an e(|Uitalile ]ilea,
which formed no (h'fince to the action. 'I'lio
jilaiutitr, iuslead of diMiiurring, took issue upon
this and other )ileas, and three perverse verdicts
had been rendered for di feiidant in tlu! court
below, the last verdict being general, though
u[ioii the other issues the jilainlill' was ide.arly
eiititleil to succeed under the evideiiee. On
ajipeal this court ordi'ivd a new trial, Burns, .1.,
remarking that, to avoid expense, the defendant
might, if he desired it, consent to a verdict for
the plaintitldn th(! other issues, and allow i ini
to move for judgment imn obstant(! i n this.
VUlulv. Fun!, !<» \). ]'■. MS.
(hie r<. was arrcsti d under an attailmieut for
certain interlocutory costs, and ga' i the usual
bond to the limits, lie had ne'er left th.e limits,
but neglected to get the bond allowed within
thirty days, and the pl;iiiitilVs thereupon ealle<l
upon the sheritl' to assign the bond. Having
lost it, the sheritl' was unable to assign by
endorsenicnt in tlii^ usual form, but he odered to
jirove the loss, and execute a seji.irate assign-
ment, or to give the plaintilVs authority to sue
in his name. The pl.-.inl ill's de(liiied tliis, and
brought an aetiiui against liiii:, alleging in one
count refusal to assign, and in another charging
an escape. Defendant pleaded to the I;, st count
that he was always reaily to assign, but that the
plaintill's never reiiuired or teiidi^red to him any
assignment for exec'iition, and that he gave them
notice that th>,y might sue on the bond in his
name; and to the other count, not guilty, (hi
leave use —i ed to move to enter a verdict for the
plainifl's, : ' t] court, drawin ; the same iiifer-
fji' '..-1 ab . ji.ry, should think them eiiritled to
rei.over : — Held, that defendant was entitled to
; • crdict on the lirst count, for though tlu! plei',
,:ii^ht be immaterial, becaiis.' the sheritt' is bounc*.
lo j.ii'itare the assignment himscdf, yet th iil;>'-
tilts 1 id not demurred, but, taken issue ; ar * ..
ai tioii being without merits, if the jury liad
id md for defendant judgment non obstante wouUl
Ui t have been granted. I'lurns, ,1., dissenting on
the ground that the plea being no answer to the
lirst count, the plaintitls, as the ease was left,
were entitled to have a verdict entered for < liem
upon it. IhiuijdII I'l III. \ M(i-.,(i,', 15) Vji. H. ;'>()8.
Semide, that there may 1 j jud.;ine:'t un\' ob-
stante where the- is a geueuJ verdict f r defen-
dant, anil the p'aiutill />,»;• *'\ei\ ha\ j Si-- writ
of eiKjuiry to a>:'-Jh;> tlij iari.'iges. liriltiiii H ttl.
V. Fithi'i; 20 Q. H. ;:'-,!^ ; ec itir., A'. ■;• v. StnicU
Hal., 8Q. B. 82.
A jinlicy was niiiu s.;;.ject ri tho'con-
liitions cndoiscil tliereo-i, ir-c •< which was,
1027
JUDGMENT.
192
"Insurance subsisting or effected with other
conii)auii!S must tie iiotiHed to the board, and if
approved of to bo en(h)rHeil on the jjolicy, and
signed by the secretary." The defendants liav-
ing proved their pleas under tliis condition, the
plaintiir contended that it did not bar the action.
Leave was reserved to move for a nonsuit on this
ground, and the pliiiutiH' liad a verdict, there
being another i.ssuo on the record. Sendjlc, that
a verdict siiouhl have i)een entered for defen-
dants on the jilca, and the phiintiff left to nio\'c
for jndynicnt noii obstante, ft)r that there can-
not be a nonsuit while another issue stands in
favour of tlie plainlili on the record. Me Ji rule
V. Guir Di>ilrh-t Mutual Firt lux. t'o., .'iOQ. 15.451.
IX. J\K(;ISTU.VHON OF JuiXiMKNT.
[Ii)i :.'i V'lf. c. //!< Ill*' rajis/nitio)! o/Jii(lipiifii/.i
n'li.s tiliolii-lifd. J/o.s/ {ij'ihc (U'ciaioii.i thi'fcfon; arc
onhl rr/rrrci/ In, '/'hr/ulloirhiij ili<ji-f<l.s l)i<i;/ pi'f-
haj)» hi-foiuiil umjul in hi-nriii'j iijioii other tiiilijcct/i.]
A conveyance fiuni an execution debtor made
prior to the 1st January, 1S51, and to the regis-
try of a judgment upon which a li. fa. lands
issued, was held to pie vail against a deed from
the sherill' under such li. fa., although such con-
veyance was not legistered till after such judg-
ment, but before the tlelivery of the li. fa. to
the sheriff, Bnnjilui v. Co/liim ct uL, 7 C 1'. til.
The certilicate of judgment registered was en-
titled "In the (^Ulceus Bench,' not "In the
Court of (ilueen's Bench," and concluded with
" (iiven under my hand and seal," iS:c., instead
of "(iivcu under my hand and the seal of the
said c((urt, " &c., and (uuitted any form of action
in which the judgment was recovered : — Held,
Kuthcient. JmuiL of Mvntnal v. Thoiiqi.iuit, 9
Chy ."'I-
A judgment was recovered against Charles
WiiitUjI Ijount, the correct name of defendant.
The registration was of a judgment against
Charles W'l.ili ij J.ount :--lIeld, sulhcient. Pvutid-
fuut V. Linnit, 'J Chy. 70.
A confession of judgment was executed in the
name of Matthew I'mlijir. The certilicate was
of a judgment against .Nfatthew yAi(///(C,'< : — Held,
registration baa. McDonald v. A'udjc.r, t) Chy.
75.
Semble, it is enough to state the amount of
the true debt in the certificate. Jb.
A certilicate of the entry of judgment, signed
by the deputy-clerk of tlie crown, Held, sulli-
cieut. 'Jardiiu r v. J awn, '2 E. & A. Ib8.
As to the efl'ect, under !) Vict. c. 3-t, s. 1.3,
and L'4 Viet. e. 41, s. V2., of delaying to place
execution in the sheriff's haiuls for more than a
year after the entry of a registered judgment.
See (\iii,iiii'irinl Hank uf Cainida v. Bank uj Up-
ix-r ('(iiKclii, 21 y. r>. it I ; Bowc v. Jarris, I'.i C.
P. 41);-); Morlan<(\. Monro, I'iC. P. -ZWl ; Conch
V. Monro, -23 Q. li. 410 ; Bank of Monlri-td v.
Taiilor, 15 C. 1*. 107 ; Moffatt v. March, 3 Chy.
62.3 ; A'er/- V. Aiimkn, 2 K & A. 44().
The words "suit" or "action," in stat. 24
Vict. 0. 41, s. 11, mean suit or action to which a
judgment creditor is a party, not the original
action or suit in which the judgment is recovered.
Buckley \.Hijan, 7 L- J. 322.— Chy.
The lien of registered judgment creditors
not preserved by a bill liled Ijcfure tin- \m.
May, 18(51, but to which they wito nut mu
parties until after that date. Tin; Haul; nj yi
treal v. Woodcock, 9 Chy. 141, oVfi-nik.,i, Sha
\'. Ciinnimjhuin, 12 Chy. 101.
A bill was liled to enforce a rcgisterul iml
ment while the l;\w for such re;,'istratiiiii mus
force. After the registration, the "iehtdi' eu-c
ted a mortgage on his land, and tlieii iissiuiK
his estate for the benelit of iiis ereiliturs. '[]
bill was against the debtor only, and the iiKir
gagee and assignees for creditors were imt m.,,
defendants until after decree, nor until aitiTtI
time limited for bring'ing suits by the Aitaljc
ishing registration of judguieuts : -lli.|,| tin
the registration of the juilgnieut did not alTci
the mortgagee or the ereiliturs entitled ;:iidi
the deed of trust ; and that the iii(irt";i-ee «■!
entitled to priority over the plaintiff' 1/,-/>;
(dd v. n'riijht, 14 Chy. 284.
C
I'U
:U!
liaud was convoyed in trust tn jiuy iiirj
mortgages, and (secondly) registered juil'ituniit
A creditor whose jiulguient was registeieil b
fore the date of a nuu'tgage given hy the (kbt
to another creditor, assented tn the deeii, ai
his i.ssigneo afterwards tiled a 1)111 statin 'siu
assignment .and praying foi- the udiiain.str,ui<
of the estate : — Hehl, that the jndgnieii* c"<j
tor had submitte<l to be pai<l aceordinn ' '
order provided by the deed. Jh.
In September, ISrw, one '1. enter .d into
contract (which was never I'cg! -iterei'.) with o:
M., for the sale to h';u of a lot if Lnid. Ju
tober, 1857, the '.iaintill's recovtrcil and i\
tered a judgment against (t., and tlienU
ipiired priority i ver M. on the lut .•^(■Id liy
.and in March, 8()1, liled a Idll ayainst i
enforce their ju("gment against the let eoiitnid
to be sold to ^l., ,13 well as against irthir
of G., to w-hich bill the plaiutills |haviiij;j
tice of the contr.ict) did not make .M. a party
certilicate of lis pc-'. dens being 111 iweverre^isUt
In March, 1802, M. (.btnined I'mni (i., inukrl
contract, a convey.ance oi the lot, wiiich
registered in Septciiibci', 18().', and the iil.iiut
becoming aware thereof ;ip)i' jd exiiarteiiir
10th ,lune, 18()4, uniiLrthe order of 2!lth ■
18()1, for, and obt.aincd, an order to make
party in the master's oliicc : - - Held, en appc
the full court, (VanKoughuet, ('., dis;
under the facts in this case, the lien ereatn
the regibtrationof the plaintiffs' jnilginenta).'a
the lot, the subject of the eiintr.aet, w
notwithstanding sec. 11 of 21 ^ let. e. 41. Jt
V. dardiner, 11 Chy. 2,3.
Th.o judgment of a District Court oaniuit
lands for want of a docket, /)oe d. Mdui'*
McDonnell, 4 0. S. 195.
Under sec. 13 of our Registry Act, fl Vict a
lands were bound upon the registry nf tbtjl
ment, the mistaken reference in the elaiiso 6
docketing of judgments iu Kugland heiiy
sidered a mere false illustration of vii.it
plainly provided f(n- befure. Dm d. Duii>jt\
Fannhuj, 8 Q, H. 1()().
Where lands were conveyed to :i piiri"
against whom judgmeuta were then
and executions ag.ainst lands in -lie sin
hands, and a i)U)rtgage was ta':..i hail; '«
same day for a balance of pi fclmse iiume-
10281
istered juili^iiicut crwlitfirs tjl
a bill tiled licfi.rc Uif IStlio^
, -vvliii-'U they Wfva not \km\^
that (latf. The Hank di Mn
<) C'hy. 141, iivcr-rulud, .S/.'ib
ichy. 101.
[ to enforce :i rcgistcruA jiiAgJ
.,w iov swell re;^istratiiiii wio ij
i-L'<'istratiiiu, the ■kiitur ixumj
,11 his land, and tlien iissigueJ
: benctit of his erediturs. Tkl
the debtor oidy, aiuUke iiini
ices fur cretbtors weie imt iiiiull
after deei-ee, nor until aiti-nhl
brin'dnL; suits by tlic .\<.t ;i!iol|
ion o? judgiiieiits : lleW, tli^
ot the iud^iiieut dill lint ulTed
„r the creditors eutitlel wAi
,t ■ and that tlie inn!t-;i
i-ity over the lilaiiitill'. M'lhi
14'Chy. -.284.
onvcyed in trust t" vay am
L (secondly) ivuistered jimyi..uU
lose ju.lgnient was re;.istcUH 1-
i a mortgage given l.y ti. .W,
editor, assented t;'.,V"' ""'' ' ^
fterwards hied a hill stiitni^ su<
id pravii'g i'"- tl'^' a;ln.nu.tr,Ui^
-Held, that the ,iu,lgiueii*
ittcd to he vaid aeconhi.i;
ai)ythedec(h H'-
one '1. enter jil intol
" witlK
lll(
m
judgmp:nt.
1930
the
'inei it
ber, 18;
ichwas never ^ctr^tere..
alctob-.aotalot.i W.
iaintitVs reeoveycd aua le;
v-ainst (i., and t iml.y
-vcver^M. on thelotsoUliyliiJ
J;.-^;jnt against the Ictcontn
,^-°as^veUasagamstotkvl
icli bill the l.laint.tMlwv>.,^.u|J
,ntv^.ct) did m.t maU. M. . J
IcnsbeiughoWcNciKgLlin
.'.Gained inmi ('.., >'">'\'''
llie lut, wliitli
lis lie;.
|tW, M o'.;Min
^^5^,;:hcr,18a-andtl.cv:.'^
StUreof\vvP' -^ ^M'avt--
,8()4, niuier the
1,1 obtained, an
Imaster's ofheo :
Irt (VanKouglinct, '
Bin this case, the hen er«
Uoftheidah.titVs.i«dKme..t
'"Object of tlK.e,.;traet wa.
■liiigscc. llol•2l^•^■t•^■■^l■
[ 11 e'hy. '23.
,„tofalHstrict(;o«rt««..^l
„rdei' of •J'.Hh J|l
order til iiwkt
-lleU, eniiltcai
liss.
itwl
[ tilt jl
lut of a docket. J><"
U O. S. 19-").
1 n of onr Registry Aet,0 Vict
Voundui.on the registry I
listakcn reference 1.1 ol^.
iudunients in KngluiM i'^ 'V|
,ilalscUlustratn.i;-
ided for hcfore. Vo, a. i' J-|
b. v.. it'<'-
Inda we
ve couvoye
a I'l
Im
judgments wcr
then
ons aga
list lands ui
mortgage
balance
Ir a
was
of in
ta':-.!
.ho sli^
kiok
I ffliMiiciits and executions attached before the
'jrttgage. L'kIIiui v. Li-rUcoiiU; KJ Q. B. 495.
Vnil'le, if a vendor convey land to a {mrchaser
ajVriUi agrcemc it that he will execute a iiiort-
nlf til secure the purchase money, whicii agrec-
l^jt the vendor neglects to register ; and judg-
iKiiti are snhseiiueiitly registered against the
lionteer, they will prevail over the agreement.
I i nersnn equitably interested in land under
Id a.ircement for purchase, agreed to convey
[tioiis thereof to purchasers for value, and suli-
1 „,,i,tlv a judgment was recovered against hiui
Iriiih was duly registered. Afterwards a party
|«lv;iiKf'i' iiiii'iey to complete the purchase, and
lAe .iwuer eiuiveyed to the vemlce, who con-
lieviil to the person advancing the money, tor
"*' kiietit (if himself and the other purchasers:
Hdil, that the purchasers had not thereby
.aviil their iiriority over the judgment, anil
liiltbi.- jiulgnieiit held the land subject also to
llle^iiui so advanced. Mrijiicslidi v. Cmiiplicll,
ICliy. 24-.'.
Amiii't"acec of unpatented land, after certain
liiiueiits were regi.stered against him, assigned
lis t'statc for the benctit of his creditors.
jttnistee paid to the (lovernmeiit <iut of the
^1*1 estate the balance of the purchase money :
' Htld, that in respect of the sum so paid lie
: iititleil to Iiriority over the judgment credi-
.l/,-/»','/'-f v. .Sliair, 1-2 Chy. •205.
u Tilin" to the form ot decree to enforce by
I the lieu of a registered judgment cre<litor,
,. ■■:;„ Iv'c under it, as sanctioned lij- the
wl.ile tile law for the registration of judg-
was in force, the debtor had a day to
111, anil, uulew he niatle default, no iiniuiry
tintherineuinh'-ances was made ; but in case
teiult, and an order for sale therenii, the
fertben oni|ni)ed as to other incuuibraiices,
irkrtiitlieilistribution of the proceeds under
tee. Crairj'oi-d v. Hhujle, 12 (Jhy. 400.
ffkere a judgment was registered and a f i. fa.
Ktlaiiiis was delivered to the slierill before
espiration of tlwee years, but the sale did
tilie jilaee unti' .'■-.' he three years had
i*nl, ami the jod; mc '„ ', ■' not been re-
iUmI;— Held, llu't file . len'i' could only
my Lwl the ik-', or lirvd ..„ vhe tiuie the ti.
WIS plaeeil in V . nd : raid that a convcy-
Bile liy tl J t'( l>\, r >) fore the judgment
(ilitaiiK'tl, ln.i. not i '■ red till after the
itratiiiiuif the judyi;? jU ., t'-ok ...reccdeiico of
Liiti's deed. C/ic^ley v. t'o.'.'y'i', li'i t'hy.
lUiilccil from J. A[. to J,, under which the
'.111 ill ejeelmcut elain ed, was made on
littli'iFeliruary, 185". t'.'i' judgment against
iM, VIS entered on die 2 Is t ,lune, 1855, and
itereil iin ll;j 'J'iiid in the Registry otHce.
'ei;ih,Inly, l,S.")'l, the sheritt" sold the land
a lihiries ti, ta. tested on 3 1st March,
-Helil, that the sl.erifl's -U'ed could not
ier the estate , ire viousiy vested in J. Jlur-
v.>Vr, ;V2l,i, ;i. IS-'
are,\vbetho'. :. ../i.-^tmei ts ■.elating to the
'*v of juilgmont; so iva to oind lands ajiply
reeovere ' against executors. Coin
chase w<\n
f»i(Aiiii(-ii/'
|!lQ.B.5i.
■iilii\. lirnkof UpiMf L'amt-
Tlie 13 & 14 Vict. c. (13, s. 2, making a regis-
tered judgment a lien upon the lauds ot the
debtor, did not ajiply to judgments obtained
against the personal re[iicsentative of a debtor.
Jliiiiiilliiii V. Jii(iri/iiiiii'i-, 7 ('liy. 28(). See also
Bank iif Moiitrctdx. Tin/lor, 15 C. 1'. 107.
The provisions of the ]'A Si 14 Viet. e. (i.%
aindy only to judgment creditors whose judg-
ments have been entered iqi since the 1st of
.lanuary, 1851. Where therefore creditors whose
judgment was entered mi in t!ie year IS'Mi, and
registered in 18.54, tiled a liill in 185(i to set aside
a deed executed by their debtor to his son in
1S35, as having been done to defraud creditors,
or as being voluntary, and therefore void as
ag.'iinst purchasers for value, the I'ourt refused
this relief, but gave the )ilaiiititrs liliertvto amend
by making the bill a bill on behalf of all credi-
tors, and praying f(M' an administration of the
debtor's estate. Hilli-sp'n' v. VniiLiiiiiniiilt, (5
t'hy. 533.
A registered judgment upon which a bill was
Hied in this c<iurt stood on the same' fimting as a
mortgage, and the incumbrancer could hold his
ineiimhrancc, be it mortgage or judgincnt, only
f<ir the sum actually advanced and interest.
/'i-oii(/j'vut V. JiiC'h, J}ii.-</i v. I'roHi/fiKit, 7 Chy.
518.
Where the judgment creditor of A., who had
registered his judgment, cl.iinied the beuelit of
a judgment snbsetpieutly registered by A. against
H, : -Held, that A, having actually assigned his
interest in his judgment before registration
thereof, was a good answer to the a[iplicatioii.
Loiris V. JoHcs, 8 Chy. 571.
While the law respecting tlic registration of
judgments was in force, two judgment creditors
registered their judgments ; the second in point
of time proceeded with a suit in this court to
enforce his lien, the other did not, althougli ho
had also tiled .a bill in time, but he proved his
claim in the master's oHiee in tlie suit instituted
by the other creditor, and who in that jiroeeed-
ing had sued out a seipicstration, under which
proceedings had been taken to obtain paynient
of his claim : — Held, on re hearing, (atlirniiiig
the judgment reported 20 Cliy. 185,) that the
creditor who had lirst registered, had not, by
refraining from proceeding with his suit, hist
the priority obtaincil by him, by virtue of his
prior registration ; that to entdr le such claim
it was not, under the circumbtaue ;s, necessary
for him to revive his own suit in this court,
v,hioli had abated meantime by reason of thu
death ot some of the parties ; and that the plain-
titl' in the suit in which he had iiroved his claim,
having sued out a writ of seipiestration, under
which the sheritt' had acted, had not the etf'ect
of changing the rights of the parties under their
registered judgments. Jliycr.-t v. Mcyvrs, 21
Chy. 214.
Sec, also, Doc d. Thiiipxi >/ v. lioiilton, 9 Q. B.
5.32; T/ilrkrllv.J'(ill<rsn,nf'.(il, l8t,).B.75; Wiili-.t
w Bullock, 10 ('.P. 155; Fnisci-y. A)iil<'rKoii it a!.,
21 Q. B. 034; C/idiiilxr.s v. Dollor it nl., '2\)(). B.
.59!); Bifhinii v. Cuiilnill, I Chy. 81 ; McMitstvr
V. I'liij'iM, 5 Chy. 253 ; /'(;/;/(■ v. Jli'lcnl/i', 5
(Uiy, 028 ; liiitihiit' Moiitmily. 'i'lioiiijinoii, Ot'liy.
51, .v. ('. 3 E. & A. 2;il); Diiiiorm, v. Lc, 5 Chy.
345; ll'toTCM v. 7'<(///or, 9Chy. 59; Ferricy. K<-Ui/,
9 Ghy. 2G2 ; B(mk of Upi>ir Cauaia v. Biiuti/, 9
!■ i
Ch>. 321
(Hia, 2 K
3 Chy,
541.
Friiniuin v.
& A. 3()2 ; Miiulijti ncri/ v.
C'hanib. 09 ; Meyers v. Meyern,
Ihtith of UjtjH'r <'(in-\
ShiirlU,
19 Chy.
Great delay on the part of a iluknilm
X. Skttim.' Asike Judgments.
1. Power vf Jiulije ill (.'hamherA.
A juilge in cliainliera has power to set aside a
indgmcnt in ejectment, and the hal). fac. poss.
issned thereon. PojiplewM d. Capreol v. Ahliott.
5 O. S. 245.
A jndgo in chambers has power to set aside
a jndgnient of non pros. Jliirt v. Boi/le, (i O.
S. lOS.
A jndge in cliandiers will not set aside a final
judgment regularly signed. Jticlitnoml tt al. v.
Proelor et al., 3 L. J. 202.— C. L. Chanib.—
Il()l)inson.
Final judgment by default under see. GO of the
C. L. V. Aet, 18.">1'), ma^' lie set aside 1)y a judge
in ehambers, on the defendant's satisfaetorily
aeeounting for the default, and diselosiug a good
defence on the merit'! JJexter v. Fitzyihhoii, 4
L. .J. 43.— C. L. Chai —Robinson.
A judge in ehambers ' "'< r t.i set aside a
final judgment, on th J n. ' ler the C. L. P.
Aet. JleoniK V. (inai'i 'J' 'f. ]\'. Co., (3 L.
J. ()2.— C. L. Chand..— Drai ..
But not a judgment on demurrer regul rly
signed after argument. Pom el al. v. Granqe,
27 Q. B. 30G.
A judge in chambers has power to aet aside on
the merits a final judgment .signed on default of
plea. 1-Woit V. Esniti, G V. \{. 10.— (J. L. Chamb.
— Dalton, V. a .{■ P.
lit ni,
i« hi
preclude his right to liave jud-
set aside. Pklumiml et nl. v. J'luriu
L. J. 202.— C. L. Chamb. —Robiiisim.
Wliere an apjiearanee is entmed in due tjj,
judgment signed as for want of an ;iiii](,an.i,(..
irregular only, and where deleudant is ;;,'ii]t?
laches, and no atiidavit of iiurits liliij "
not l)e set aside. In this ca.ne judgiiunt hus»!
on the l!)th I)eeend)er, of whiL-h tin.- i,Kf„t
was aware in January, but he did ii,,t aimlvuni
the l.jth March. The applic.itidu \v:w dis^ham
itw
111
■IJiflwrd
2. Delay in Application.
In an action against an attornej', he sliould
have four full days in term to plead, but lie is
too late to .set aside an interlocutory judgment
signed before the four days hail expired, two
months after sucli judgment, and after notice of
assessment served. Monroe v. Kimj, White v.
Kimj, 4 (). S. 189.
Tlie court will not set aside proceedings three
months after the entry of Hnal judgment, to let
defendant in to plead on alHdavit of merits,
•where no satisfactory reason is shewn for the
djlay. Billin</x v. Papelje et al., E. T. 3 \'ict.
If an interlocutory judgment be ii'regularly
signed, and defendant has time to move against
it in vacation before damages are assessed, ho
must move. Ketrliuni v. McDonnell et al., 2
Q. n. 378.
■\Vliere a rule to set aside a judgment was en-
larged from Practice Court to a day after term
in chambers, to ali'ord an opportunity of correct-
ing a defect in the service, and was not then
disposed of, as the service could not be completed
in time : — Held, that the ilefendant might ap-
ply again in the following term. Huffy. Cam-
eronetal., I P. II. 255. — Bums.
A judgment will not in general be set aside for
irregularity after long delay or acijuiescence on
the part of the plaintiff. Kerr et at. v. Bowie,
3 L. J. ISO.— C. L. Chamb.— llobiiiaon.
with<iut costs.
roorlxh, 4 h. J. 232.— C. L ('iiaii,l..l
AVheve final judgment in default (if anajii^a
ance to a specially indorsed writ wa.s Liiti'i'ili
23rd January, and execution issiuil mi thc.'SOtJ
and a writ of attaclmient under tiie Uanknihti
Aet issued (m 3rd of Feliruaiy, an aiiiihiMtic
on 28th March, at the instance nf tin: i,moii
assignee, to set aside the judgment as invwli
for a defect in tlie affidavit ot Kurvi.e, w,ij He
too late. Dunn v. J)uiin, 1 ].. .1. X s •'■!'!.
C. L. Chamb. — Kichards.
Leave to the official assignee tu il.>iii
the merits, which if grantnl wnul.l liav
tlie eU'ect of destroying plaiiititt's iinMi-;
against the attaching creditors, was ruisk
t'le official assignee left to his reiiicdv, if ;i
term, as against the judgment mi tliV -i,,,.
fi-aucl. It).
A summons was served on the I'.ltli IV
1859, and tiiud judgment signed tor want.
pearance oa the 24tli of iJecciiilRi-, Isi^ii.
execution issued. iJefendants mi tlie I'lst
uary, 18G1, moved to set aside tin.' iuil:;in.iit
the ground that it had been sigiiuil luu;
year alter the summons was letiinialik
without a term's notice : — Held, tim late.
Kenzie et al. v. McXnuijhton tt al., ;ip, i;.
C. L. Chamb. — Ilobinson.
A judgment c' non pros, haviiiii lucii .iiti
on 2()th March, 18(i(), of which tlio iilaimuF
inunediate notice : — Held, that tile lUhv
the Kith of March, 18(17, in iiiakiiij; this
cation to set it aside, was a waiver nl any irn
larity. J/err v. Douijln.ts, 4 1'. 1!. lOi-C,
Chamb. — Robinson. .See S. ('., p. VM.
3. Affidavit of Merits.
On setting .aside an interliicutorv imUiw
the atiidavit nuist assert that ilLfcmlaiit 1
good defence to the action on the naritj. }[t
et al. V. McLean, 1 C. L. Cliamh. li.— Ma aa
Where the jiartner of the lessor nf iil.iii;
attorney swore that the lessor of jilaiiitiii' I
good cause of action in tliis cause mi tlk laa
3i
irr.,!!
\ia
was
Roe,
Held sufficient. Doe d. A'l/t,/ ■ '.
1 C. L. Chamb. 111. — Macaulay,
iSemble, it would not be if made by a tiej
the attorney's office. lb.
Where a. defendant set out certain f.utsj
then swore that he was advised iiiDt tluul
lieved) that he had a good defence to saiJ
on the merits : — Held, auiliciuut, Pm-n v, ;
leas, 1 C. L. Chamb. KiS.— Robinson.
An interlocutory judgment will in suuie j
be set aside upon an affidavit diaclosini; a j
he part of a i\utVni\;iiit niaj
to liavc iu<lgiUL-iit aguiust U^
„„; (t iti. V. I'l'ii-',,,- ,1 .xl
Jhaml).— rviili>"«'i>-
,rance is eiitmu'l in Aut time!
is for want of an ;iin)t;\iuiicc i
t\ whore ik-fcuilmt is i^uihy (
tVulavit of iiui'its likil, it wij
n this case iiult;iin.Mit \v;ls^i^
euilier, of wUicb tin; vl^iiitil
uary, V)ut he ili'l imt a\iiily untT
The a\>iilieiiti(m was ilis,:ii;ivire|
'Jtniil' ')/ i'rifrrr.u„„l.iy. Vxt
y^o {.'. L. (,'hiuiiii. ' llK'iuin
,\gmeutiu default (.1 mi:\\,\k
[y iiuloi-seil writ was untfiiii c
ul executi<m issiU'il "ii tin.- Silt
tachnient uiulev tlie l'>uiiliiui.t
in\ of Fehvuai-y, an aiivl'intid
at tlie instance of tin; nmcij
aside the judgiucut as iniLi;la
he affidavit ot hcivkv, was Hd
,i V. Dii'i", 1 1-- •'■ -'^- ^
-Ivichards.
e official ivssifinee h) il-'icii'l
liieh if granted wouM liuv.
lestroyiny vlaintitt s vvmiuv
aching credit. lis, was i cms.
«ueu left to his iv.me.y, u
stthe jndgnieut on the ^vnumlj
was serve.l on the lUtli F.l.ra:
.1 iudgnient >.igned mr wuut .
the -i^th of Deceiulier, ISiHI, l
^^.^\ defendants outlifilstJi
loved to set aside the uul.^i.Aiitl
uvt it had been signed ui.nv thaT
he siunnums ^as '■^;tun.i hk
■m's notice -.-Held too 1;U..
. il/c-V"";/''''-"' •-' "'•' ■'
—llobinson.
t c' non pros, having liocu tma
h 18(i(), of which the vliimiufl
itice -.-Held, tliat the.
larch, 1807, u. "'^^1;"'='
baside,u-asaw-aiNe.;..,;>rr<
V. i>oi<!/'"--S -t 1 • 1- "-
insou. See .b". C, V- li"^.
1533
JUDGMENT.
1934
I 'iice up"" t'l*' merits, though not distinctly | cure his irregularity hy tiling and aoi
I varin', " tliat defendant has a good defence ' i .^- r ^ ._i i-^
m the .u'timi upon the nieritn. " liuiichicr il al.
,5; ;w/»/i it (//., -A L. J. 48.— C. L. t'hamh.-
tliis
vingarepli-
;atiou and notice of trial conditionally, to take
j effect ill case the judgment should he set aside.
I McPlnrMiii V. DifLsiiii, rt i). B. 47t).
3. A f davit of ^^''>''''-
aside an intevlocutory juj^i
,nust assert that de.cn. .ut
tothcacti<m.«tliei.iou^.-'1
P««, 10. L.Chamh.(>.-M.'.'«l
partner of the lessor ot vbn*
/etluxttheless,.r..ti'l^"'f'*'
'^.etiou in this cause cm tl.m<<
, sufficient. V>o,';l- W-
[l. Chamb. lll.-MaeauUv.
would not be if made by a clefl
s office. /''•
LfendautBet^mteertamg
l>.at he was advised luoi uui
^^^lidagooddefenceto..-
.— Held, suthcient. I^n''
"hamb. 168."Rohmson.
\n affidavit disclosing a set-off merely is not
,' ,i,l^,l,,vit of merits. In order to set aside a
liJuieiit entered on a specially endorsed writ,
iBiinliuary athdavit of merits is not suliicieiit.
u,rii,ity. JuhtiKuii, 8 L. J. 4(). — C. L. L'liamb.
-Iteiper.
A*mnimins will not ho granted to set aside a j
ti.-aii'iit regularly signed on a specially en-
llrsed writ, without an athdavit disclosing
Lrits. Tl"' "'""■■'''''■ ''""' f'f>- v. Xclson el a/.,
p R. ,S43.— <-'• L- Chamb. — Owynue.
Uiihvits tiled in reply to such an application |
Utnitit'tiiij,' the merits disclosed are inadinis- i
.,at least so far as they are so contradictory, I
tkuerits disclosed shew a bar to the demand
lit to be recovered. Ih, 1
Itisiiot ail inflexible rule, that on motion to '
asiili' an interlocutory jmlgnient, the court I
plimt receive affidavits in contradiction of the '
•ral affidavit of merits. }Vili<iii v. .]fiiiiici/)<i! \
'„.'nlojtlie Town of Port Hajx; 10 Q. B. 405.
In Ml action by bearer of a i)romissory note
st maker, defendant cannot i)lcad den^'ing
itthcnlaintiiT is the bearer, and also in con-
.11 ami avoidance, without leave, under the
Cthsec'.of ('. L. 1'. Act, \H'>C) ; and if defendant !
ipleail, l>laintirt' may sign judgnieiit under'
IS,') ; aii.l where, after execution issued,
jiiigmeiit regularly signed is set aside upon j
merits, defendant will be ordereil to pay in-
aart the amount for which judgment was
lal. iVr/7/ v. ll7/f'/»)-, 3 L. 'j. 'll.— C. L.
ib.-Hagarty.
Wiley. Wiley, (i W. T!. ()40, followed in iii-
[.Mi'iy the words, " disclosing a defence on
niirits," to mean "opening out the de-
*" .!/.•/)»»"/'/ (/ t^t- v. Burton <t ai, 2 L.
S. S. mo.— I'. L. Chamb.— Draper.
4. Other Ca.tCK.
lin interlocutory judgment in which the cause
K'tpriiiierly styled, is insullicieiit to sustain a
iii<iif a.?sessment ; Iiut if a notice of intention
lufive to set aside the proceedings be not given
I assessment of damages, the proceedings
ik set aside without costs. A Hanson v.
M.,e,4 0. 8. 323.
tere a plaiiititV declared on several c<uints,
ileftiulauts deniurre<l to one ciuint and
i t(i the others, ami in the same term the
ptiff ameuded the count demurred to, and
kMl (lays after the service of the amended
'rati.iii signed interlocutory judgment on
IwWe record and assessed damages, hiving
Iftteived notice from defendant of an inten-
laotion to set aside the judgment as signed
IM, the court would not afterwards allow
]oliiection that the judgment to the whole
ntioii wa8 wrong, as pleas were filed to
Blrdx.iFacaulayetal., 1 Q. B. 411.— P.
[■Maciulay.
liiatiff, apprehensive that he may have
1 interlocutory judgment too soon, cannot
Semblc, however, that the defemlant, by argu-
ing the conditional replication on a demurrer,
may waive its irregularity. /').
The omission to give notice of taxation is not
in all cases a siillicient reason for setting aside
the judgment. Itlach il al. v. JIall <t al., II
Q. B. ,3o(i.
Where a defendant has allowed judgineut to
go by default, where he had a full opportunity
of defence : — Held, that the court will not inter-
fere, unless fraud is shewn. Murri-^on x. A'lcn,
1 P. It. 25.— 1'. C. -Draper.
Plaintiffs sued defendants, H., M., ami S., as
joint makers of a note. H. and M. did not ap-
pear and judgment was signeil by mistake against
all, but afterwards set aside as against .S. who
pleaded : — Held, that if by taking judgment
against the defendants not appearing, tlie plain-
tiffs, under C. L. P. Act, sec. ()(!, had io^t their
remedy against S., that objection could not bp
taken at the trial, but the proper course was to
move to stay proceedings. tSeniblc, how ever, that
the plaintili' had not elected, within tlie meaning
of that clause to proceed against the otluis sepa-
rately, the judgment against S. having been set
aside. Kirntal. v. llcrcj'ordH al., 17<i'. V>. 158.
Where a defendant served abroad appears to
the writ, the plaiiitilf need not jirove his claim
unilcr ('. L. P. Act, 185(5, see. 35, Init may sign
tinal judgment by default as in otlicr cases.
Cainf it ul. V. Fit:,'ll, 2 P. It. 2.;2. - (.'. L.
Chamb. — Burns.
Defendant files without serving a defence, ami
at the same time obtains a summons to amend
the declaration, which was made alisolute. Oil
the ameiidincnt l,<eing made, plaiiitilf signs inter-
locutoiy judgment for want of plea served, but
afterwards serves notice of trial. Interlocutory
judgment set aside on application of defendant,
but without costs, as the defendant should have
treated it as waived upon notice of trial served.
Mohrrli/v. JSaini'-:, 2 L. J. 212.— C. L. Chamb.
— Burns.
In applications to set aside a final ju<lgmeiit
signed on writs not specially euilorsed, or en-
dorsed so improperly, on the ground that the
judgment should have been interlocutory, de-
fendant should produce the writ or co]iv. Kerr
i't nl. v. Bowl,', 3 L. J. 150.— C. L. Chamb.—
Kobinson.
An interlocutory judgment will not be set
aside to enable a defendant to plead matters
arising suhseipient thereto. Scholkhl v. Bull, 3
L. J. 204.— C. L. Chamb.— Burns.
The court will set aside a final judgment by
default regularly signed on jiayment of costs, if
defendant shew merits. Wi'ntlab' v. Atihott, 4
L. J. 40.— C. L. Cluunb. — Robinson.
Under very special circumstances judgment
may be set aside after a trial has been lost.
Arnolil V. Bolurtson, 4 L. J. (il). — C. L. Chamb.
— Robinson.
In such cjvse a very strong case must be shewn,
and tlie delay should be satisfactorily explained.
lb.
';?! /i
! , f
l3
•IITDGMENT.
A chiiiii f'lr iiitiTCst on a (luiiuinil i.ir siiccific
gddils and tliattols Sdld, ciKlorsud on a writ of
sunmioMS, is good, and cannot be disjmtuil after
jiidgniLiit HJgni'il in dcfanlt of aj>iiearani'e ; Imt if
a claim for interest is endorsed in order to gain
an ini|)roper advantage, and jndgnient lie signed
for a larger anionnt than a jilaintitl' is really en-
titled to, snch judgment will lie «et aside.
MftiriiM V. (iniiii/ Trunk liallwa;i Co., (J L. J.
C2.— C. L. C'hamb.— Draper.
A jiidyment will 1)0 set aside on tlie motion fif
n sulisii|iient judgment creditor only wlun it has
lieen jirocured liy fraud, and the jiroeess of the
c<mrt thus abused. If a nullity upon any other
ground, a stranger cannot bo iirejudieed liy it ;
anil if irregidar only, ho has no right to com-
plain, liii/foiif V. Ell'miu I't (il., 8 L. J . 330. —
C'. K. ('hand). — 15urns.
On the 1st March an order was made set-
ting aside a jndgnient on jiayment of cost? with-
in a\seek. On the 8th March the costs were
tenilered, and through error refused ; on the
same day the defendant, treating the juilgment
as set aside, liled and served his jih'as together
•with a demand of replication. I'laintitl' after-
wards demanded the costs, anil on non payment
issued execution : — Hehl, that the eil'eet of the
orilcr followed by the tender was to set aside the
judgment and execution so as to make the tiling
and service of the pleas regular. (/(Dr /)i.ilr(rf
Miilmtl Flrr ///.s r„ 1 .I'eTjHlir, 10 L. J. 1!)0.—
C L. C'hamb. — Drapn-.
Defendant in the County Court obtained a
rule nisi to suter .? nonsuit, with stay of jiro-
ceedings ; it was ni. '■jnei^ y :he elei-k, but
Lad at the side the words, '• Rule nisi granted :
AV. Salmon, judge." riaintifl"s attorney, treat-
ing it as no rule, signed judgment, but the judge
held it to lie a ]iroper rule and the judgment a
nullity, and ordered a nonsuit. On appeal by
the Jilaintitl': — Held, that the judgment was
irregular oidy, and should therefore have been
got rid of before any other step could be taken.
Jiruin, V. C/l)i,; '21 Q. B. 87.
Judgment on default of appenranee was set
aside for iiregularity on the ground that the
afhdavit of service of the writ was entitled in
the Countv Court instead of the (Jueen's Bench.
Liri/ V. ]n/.ioii, 9 L. J. N. S. 191.— C. L. Cliamb.
— Dalton, C. C. ti P.
So long as a judgment at law, although irre-
gularly entered up, remains a record of the
court, and neither fraud nor collusion in ob-
taining it is alleged, a bill to impeach it in
Chancery on the ground of the irregularities
will not lie. Toit v. HarrUon, 17 Chy. 4.j8.
See Wiptn v. Pttlnur, E. T. 3 Vict. p. 1914 ;
Waa-hi.-< V. Feuton, 8 C. P. 289, p. 1958.
XI. Computation of Amount Due.
The court refused a rule to compute interest
before the master in an action upon a judgment,
there being doubt as to theplaintiff 's right to such
interest, and defendant resisting the application.
EhcrtA V. Tnivelkr, 9 Q. B. 355.
Quiere, whether, under 2 CJeo. IV. c. 1, a
plaintitl' is entitled to interest from the tin)e of
entering judgment, where he does not enforce
such jndgnient by execution, but brings a second
action upon it after several mouths, lb.
tin
Judgment nnist be actually si^Mud Imf.ire
reference to the master to ciiinimt" en i
oribired. Uilloipk v. Miir.tli, 2 ('. L. ('li,n|,|
— Burns.
Where in an action on the cuniinon ,•„„„(, f
goods sold, interlncutory judgment havin.r l,f.,
signed, the plaintitl' desires a refurciRc tn tl
master uniler sec. 1-13, ('. I,. P. Act, IS.'ifi iti.
be shewn that no dispute is likely to arise eitl
as to ijuality or price. llutriiUnn v. \;,/,.„,,.„!
14 0. M. 472. "■>
^Vhen a writ of attnclnnent 1ms \iw\\ son-,
ujion the wife of an abscondni;;- dflitur, Mlmi,
tied to parts where per.-^onal servicu cuin.it 1
etreeted, the ]ilaintill"s damages mav In; :ni.
tainedbythe clerk of the court umln' tliiii «&
tion. Ch<tiiiii(in v. Di'Lonm, ') 1,. ,J, Hjkj.l/
L. C'hamb. — Burns.
Hehl, under C. S. U. C. c. 22 s. lt;|, tbttl
master is empowered to asceitain the .iinniiiit fi
which final judgment is to be eiitereii, imt i.ij
in wises in which he coidd, but in ea.ses in wlic
he couM not, before that .Vet have emiiiinte
what was due; and tliat the fact uf the ilcfei
dant being resident out of the jiu'isilietl.iii, i,|j
objection to a reference being ilireeteil i>',i- s\\i
purpose, (.'rtxjti v. JJirksnii, l.'iC'. 1'. ,c';j,
The master, to ascertain what .sum, ii
remained due ujion a judgment lu^iunst
ants, calculated the judgment aiul intercut
its entry, on the 2t)tli of .June, 1841, aiul
with the sums due for exeeiitiniis is.siu-il,
the plaintitV's claim €185 12s. ;!il. Te t'li
added the slierill' 's fees, and interest tin
,f25 lis. 4d., makiu'' the total am. unit l':;i
7d. He then ga\ e defend.uits creilit fer v;
sums paid on account, and sums levieil I
sheritr on difl'erent writs, caleulatiii" intm
each sum from its payment or lieiiu' ",
the sherif}', amounting in the wliule tn t''2?il
3d. ; so that tlie plaintitl' uppeareil tn Law
overpaid t'39 12s. 8d : Held, per Draper, J.,
the slieriff's fees, poundage, Xcslimiiilliave
deducted from the gross an\ount maile liv hi
each writ, and the balance only lie ln'mi:
account between the plaiutitt' ami defciii
('uiiiiiibiiix v. r.-i/mr ct id., I 1'. ]{. iri.—R
Draper.
Ex[ilanation as to tho mode of cmninitiiii;
terest, &c. , where under an execution parti
and a new writ issued for the lialance. //).'
See Powell V. Boulton, 3 (,». B. ,W, p. IDKi,
XII. S.VriSF.VCTION AND Dl.-<Cll.il(iin,
1. SafUfcKt'iun Piece.
The court will not order satisfacfimi tn k
terert upon a judgment, without paymeffi
interest. Loijan v. Seconl, 'lay. "J'.'.'i.
Plaintiff's signature to the satisfaotir.n [
as reiiuired by rule (i4 T. T. IS.'iti, will
pensed with, and his attorney in tliu cam
authorized to acknowledge satisfaction, up
being shewn that the attorney is autluiria
plaintiff to arrange the claim, ami that tlii;
ni obtaining plaintifl''s signature will he ]
cial. Rmlnll v. Hiinl et <il., ?, L. .1. 14.-
Chamb. — Hagarty. P<ur.<(iii(t til.\. ll'yAlj
2 L. J. 184.— C. L. Chamb. -Burns.
vt
\936
he actually signed liofme
iiastcv to iMUinmt" can Ix
V. Mdi-.^'li, '2V. L. I'huml). 5j
()i\ (in till! (■ninniim rniint< foJ
•utiiry judgnu'ut hiivia;^ Kcd
tV (lusii-fS a vi'lfVi'iici.' til tliJ
•13, ('. I- !'• •'^'•^i "^•"''''' iti>i"8l
li«i)ute ia likely tn ixrist cithel
ice. 7/l(('-'/i'-<"" \'- S'lilidinujsl
1531
JUDGMENT.
1'j38
^^ijIjo «lu've tlio aiiiount of tlio jmlgiiiuiit is ]
I ill aii'l iilaiiititV rosidus witlnmt tlm juiisdic-
I n Ildiil' ';/' Mdiitrcii/ v. Cniiil; il al,, 3 L. J. i
1m I' L Cliainl). — Rdbinsdii.
Iji-i-'-" - I
Hi also where iilaiiitifT residea abroad, and has \
I mi :' written autlmrity to an attorney to
I toiwl"-''!"*-' satisfactiim fur him. Darliinj v. i
IhM, 3^^" ■'• '''^' — ^' ^'' *■''"""''• —i^<'hin«<i". j
Wkre tlie satisfaction iiiccc had been executed |
ilVrtsm attiiniey of Lower Canada a eertiticate
t nttaelinielit
nn aliseoudni;
\i\s liLi'ii servo
lU'liter, wlmliai
vc personal service e;iim"t
lutitV's daniagi'S muy liu ib.'uq
•k of the court uudiT this
V. Di'Luniu, .") 1.. .1. r.K
US.
S. U. C c. -2 s. Itil, tiwtthi
•ered to ascertain the iuimnnt id
uient is to he eutereii, imt i
il lie could, lmtinea.-;tsiu»lii(J
lefore tluit .Xct liavo comimU
and that the fact of tlii' a.te!|
\i;nt out of the juvis.hd.nii, 1
■cfereuee being dn-ectcl ini-
/,.s V. Uir^^'-H, 15 C. r. .Va.
to ascertain what sum, if mi|
noon a iu.lgmeut a-iniist ild^n
dthe judj^uient and uitciv>im
he -iOth of .June, 1 S-ll , aim! tkti
; due for exeeutiiius i^*vi«-il ma^
claim £185 l-'s. :Vl. iMliu!
■vitV 's fees, and interest tlnft(^
making the total aiu.mnt V.\
,r;vve defendants ereilit lov vm^
I'Jvccount, and sums levK.n.yf
erent writs, ealeulatnig lut.vi.t j
,m its payment m- hemg ^
innting in tlie whulo to L-
tl
Sci. fa. upon a judgment for .?'2,000, against
ilefen<laut as achuinistrator of M., on a lioiid in
tliat sum, conditioned f(ir the payment nt' si, 200
liy instalments, witli a suggestion tli.it two in-
stalments were due anil unpaid. I'lea, on equi-
table grounds, that before the sei. fa. issued, it
was agreed between tlie plaintill' and the defen-
dant, with several others, the luirs at-law of
.M., that they should eonvey to the plaintill' their
interest in certain lanil, of w hieh as suih heirs
they were seised in fee : that the consideration
J adii.ission as an attorney must be pro- j therefor should lie .i>'J,00(), and their interest
w
iJiiif due - - _
Mil und his signature duly veriticd. J/«).« v.
Ill/' 3 L. •'. "i. — t'. L. C'hanib. — McLean.
Hdil, that signing a satisfaction piece before n
Imitisi'ii" attorney in the L'niteil St.-ites, as at-
C,.vfii°the party signing, is a sulheient coni-
i,nv with the rule of court, Xo. ()4. Aim--
j,,v lu.hhiiK', G 1>. R. IGl'.— C. L. Chanib. -
y,„„, V. C. <L' /-".
Uii iinli'r tn enter sati.sfaction on a judgment
,e plaiutitV apF:"'>';' t" ^''V '1
■'s 8d:- llchl,perl>raiifr,.l.,ffl
'■ 'poundage, &c.,sh.iuUlim;M
tlie gross amount luiidc I'V l>'.m|
;,l tire balance ,:nly lie lm;iv:lil|
,een the phiintilV am ik.eu-l.
l„ as to the mode of coi,n>ntiiig
here under an executuiiiF"'*
it issued for the balance. /'■■
V. Uoulto>u 3 Q. 15. -.3, 1>. 131G.J
lATiav.vcnoN AM) llisiii.vu.:r..
1. Satl<f(ict'"i» /''"■''•
U-iU not order satisfaction to 1
:!udgn.ent,.:|t.ui..^Fy-
tehitttiynitlioJ
l-^liledge -tisfacUoM
that the atton.ey»m'«
l„-angetheclaun,aiultuttM
plaintiff's signature W.11M J
*^^0. L Chamb.-B"rns. ^
siionld be treated as so much in cash, which sum
should be applied as a jiaymeiit by the estate of
-M. to the jilaintill' : that the defendant and the
others accordingly conveyed their interest in the
land to the idaintill', and the jilaintiir accepted
such eonveyanee as representing .^'-',000, and
credited the est.ate of M. with that sum ; that
the only debt tlien due by the estate to the plain-
titl' was the .said judgment, on wliieli the total
amount then due and accruing due was less than
ili not he granted, though defendant swears .S'i.OlX), whereby .said judgment was satisfied;
Lttlie juilgiiicnt is satisfied, if plaintitl's deny
I ail it he •'"'■ otherwise clear. Lcir'au' it al.
Lj,if'„,,,3L. .1. 80.— C. L. C'hamb.— Robinson.
I He iilaiutiff's attorney, after the judgment
ll«niwid, cannot be called upon liy defen-
kjt t.> m'ocure a certificate of satisfaction for
liitrv, or a satisfaction piece to be entered ;
fcliomiiv he ordered t(t disclose the jilaintitf's
lijiif losiilence, so that defendant may tender
1 satisfaction piece for execution, and the
tit wiU order it to bo executed. ('nrr v.
v.Ni/., 'IV. R. 22().--P. C— Burns.
•2. Other C'liif^.
IliVi. that the arrest of one of several dcfen-
kis imilor a ea. sa. ami liis subsequent dis-
, with the consent of plaintitf, operates as
iBsiactiou of the judgment by all the defen-
i; anil this, although the plaintiil at the
it the iliscliarge expressly stipulated that
Jiitker remedies on the judgment were not to
ipiiri'ilhy the discharge, ffaniilton it nl. v.
i-"('o((i/.,7L J. 40.— C L.Ohamb. — Burns.
[kilt (111 judginont. Plea, in effect, that the
"jiidit ffiis entered upiui a cognovit, in which,
ijli tho nominal debt was admitted to be
Dis sued for, the true ilelit was only €79,
^lUll was paid in satisfaction of the judg-
it;-iU(l, had. Cruuk.-^y. Wilson, SQ. B. 114.
tfcici lint ill sucli a case should apply to have
pctimi entered on the judgment, or to stay
iolillgS. //).
fee sheriff held an execution against A., B.,
|(, upon a note on wdiich (). was the last
str, and the others therefore liable over to
iliKiils liclnnging to A. having been seized,
1 the bailill' £100, part of the debt, and
likeritf accepted and paid a draft by the
r attorney for the whole. ( )n the same
pt this draft was accepted, the bailiff took
Isignmeiit of the judgment, and afterwards
ItlitgiHids under a veu. ex., when they were
pthyC, and out of the purchase nnmey
liliffliaid the balance due to the sheriff:—
Ulmtlieiiayment made by the sheriff had
1 the judgment, and that the sale tliere-
|«as illegal. McU'odet al. v. Forlitiieet al.,
and such credit was the only con.sideration for
the conveyance : — Held, on demurrtr, th.-.t the
plea shewed a good defence. tl'/iiti/onl v. Mc-
Liwl, 2S Q. B. 349.
A judgment creditor having accepted a mort-
gage, docs not lose his rights as a j'ldgmeut;
creditor. Warrm v. Tinjloi; 9 Cliy. r)9.
The vend(n' recovered a judgment against his
vendee for a portion of the purchase numey.
Afterwards he wrote the vendee a letter cancel-
ling the agreement : — Held, tlnvt having cancel-
led the contract, he e(nild not afterw aids eiiforco
his judgment. Viiiiuron v. Brad'ntrij, 9 Cliy. G7.
XIIL EsTorPKi- iiv roRMER VEunicT or
Jl'liCMKNT.
1. ilini'ralhj.
A judgment recovered for a defect in pleading,
and not (Ui the merits, is no bar to another
action. Jiaker v. Booth, '2 O. S. 373.
A plea of a foreign jiulgment pleaded puis
darrein ccuitinuanee, must shew that the cause
arose since the List continuance, and that the
judgment was mi the merits and conclusive be-
tween the parties where it was given ; and scni-
ble, such a judgment properly pleaded wonldjbo
a bar. Mc'rhidmn v. La.-<hi:i; 3 t). S. (i02.
AV'hen a former recovery is pleaded, and the
action is such that it cannot be discovered from
the record whether the same demand was in
(juestion, the plaintitF need not new assign, but
may deny the identity of the cause of action,
Beudty v. Biadcj, 10 Q. B. 3(i7.
If a plaintiff could have given in evidence
at a former trial tho self-same matters which
he sulisequently sues for, Imt withholds it
altogether, he is not absolutely barred from
recovering afterwards. JJmcoiiv. Great ]Vi'titern
1{. W. Co., (> 0. B. 241.
A plaintiff having failed upon a trial for a por-
tion of his claim (goods sold) because the term
of credit had not expired when he sued : — Held,
that the judgment recovered in the suit was no
bar to a subsei[uent action for the .same goods.
VhUholm e.t al. v. J/or.fc, 11 C. V. 589.
\i I
122
JUDGMENT.
/ .Ml'/
PI.
2. Arliimt of Contract.
(a). .?((/(' (if Gouils.
Tim lir.st cuiuit was for lum-delivery of a cer-
tain (|ii,iiitity of o;its Molil by dofuliilaiit to the
plailitiir. Tlie si'coiul cimiit allfgijil an agrccnii'iit
botwut'U jilaintiir anil dufomlant, that idaiiitilV
eliould Imy of di'ft'ndant a cortain (luantity of ( 'an-
ada oats, and that defL^ndaiit shouhl dcliviT the
Baniu to idaintill'at a certain ])lai'i', yet (lefcndant
tlulivctvil to iilaiiitifl'as and for the said Canada
oats the .same ijiiaiitity of a liett^rogencous mix-
ture of Imrnt wheat and oats, greatly inferior in
value to ( 'anada oits, and the defendant never
(lolivered the )ilaintiir the ( 'anad.i oats, and that
the mixture so delivered was wholly valueless to
and unsalealde by jjlaintiH', ite. The defendant
pleaded, that the oats nu'ntioned in the lirst and
second eoiinty wire one and th<! same lot of oats,
and that Hieretofort', on the KSth August, lH(i4, in
an action brought against the iilaintill' for the re-
covery of the yr'u-K: of the same oats, in whieh the
now lilaintitl' pleaded tliat the (lel)t tliereby
clainieil fidm him waseontraeted by and through
the fruud of tlie now dt'fendant, uiion issue joined
in said action, whieh involved the identical facts
alleged MS breaches of contract in th(^ jplaintitl's
declaration in this action, a verdict was lendered
for the now defendant: Held, on dennirrer,
jjlea bad, as not alleging that judgment Iwulbec^n
enterecl Dn the venliet ; - Held, also, that the
seconil count of the d<'claration was good. Tiroluj
V. Anni/roiiii, 15 i'. I'. 2()1».
Action on a contr.aet to m.ake and deliver
tweeds of a good merihant.nble (juality. I'lca,
a former action by defendant for the jiricc! of the
goods, in which the defective (|uality of the
goods was .'■et u|i and considered by the jury in
their venliet in reduction of damages : — Held,
on demurrer, that to the extent to which the
now ])laiuti(l' ol)tained an abatenumt from the
l)rice he was piecluded from recovering in
anothei- action: that the plea shewed sullici-
ently th.-it the snlijcct matter ccmplained of
herein was sulimitted to the jury, in abatement
of the price to lie ;dlowe<l tlie now plaintiil' in
that action, and that they fonn<l for tlie plain-
tiff : that if the now plaintifl's were allowed
dani.iges in the former action, in ab.atement of
price <if the cloth, they wouhl be precludo<l from
recovering tliein ag.iin ; and that if the)' were
not allowed them, because the cloth was not
inferior, it was likewise against public policy
that the matter should be again litigated: —
Held, aluo, that the claim for loss of profits,
which coidd not have been considered in the
other action, was not laid in the declaration
as a sidistantive ground of action, but introduced
incidentally at its conclusion :- -Held, further,
that the verdict in the former action was not
conclusive until judgment, anil therefore the
plaintifl" was not precluded from maintaining this
action. Gordun ct al. v. J'uhiiisuii, 14 C. P. 5G().
A. wishing to procure a water-wheel which,
with the existing water power, would be sutH-
cient to drive tlie machinery in his mill, C.
iiiulertook to put in a " Four-foot Sampson Tur-
bine Wheel," which he warranted would be
sufficient for the purpose. The wheel was sub-
sequently pnt in, but proving insufficient A. sued
C. for breach of the warranty, and recovered
84,38 d.aniages. C. having subseijuently sued A.
for the price, A. oU'ered to give evidence in
mitigation of damages f.iat the wln^l
worthless and of no valiij to him; -Jhl,]
ajipeal, reversing the judgment nf tlie (dm
(.'ommon 1'leas, .Moss, .1., dissiutin;.', tji.^t ,
evidence was inadmissible, fur that tlir f
oHercd in mitigation miglit have, aiiil i,,|
that a}ipearcd liad formi'd a gicunnl U,t
recovery of damages in the aetinn un the \
raiity, and therefore could not he set nii in
action. Ahrll v. <!hi(n-h, •_'() ( '. 1'. ;{;)s. •
decision was reversed in the Su|n;iiiii- ('inu-
tile loth January, 1.S77, Strong, .1., ili»s,
(b) Arliiiiis of Pdi'i'iKiiif iKiii'niM Hhcr'if ,„. j
tiion ('oiirl C'lirl,; or UiiiliJ' nml Surii;,..,
Iteclaration against a bailill' of a Division C'(
and his sureties on their eovciiiint, uiiiItI'
U. 0. e. 1!), H. LT), alleging that tile liailiir, ill
an execution against !'>., wicingfuHy ^,,jyi^^,i
sold the Jilaintiir's goods, ami lueeiveii tin. i
cecils ; that the iilaintill' haviiiL; sunl tjit |,a
in the ( 'ounty Court, the bail iff ivwueil mu in
|ileader summons, on which the jiiil^,. i.f
Division Court determined that tlie iilajn
owned the goods and was eutitleil tu tlio iiiui
received by defendant, with the costs; that
bailill' still refused to pay the iiiniiey to thfiila
till", whei'cuiion t''" ]ilaintitr in'iiceedcii with
suit in the County Court, ami issiicl exniit
thereon, which was returned nulla linm. .\
so the plaintilV I'leged th;it the hailillha.liii
lecteil to ))ay .--.aid money .-■o ivceived liy liiia
such bailill' to the plaintiil', being the ii;irtv(
titled theri^to, and had mise(iniliie;nl him-clfi
his ollice to the ))laintitf's dai lage. I'li.J
the sureties, that the said bailitf iliij |iayt'i
]ilaintill' all the money he had reeeiveil hy vir
of his ollice, to which the pluintilf wasiniitl
and had not niiscouducted hinisell, iVu:- IKU,
demurrer to the declaration, Mel,e;in,.l.ili<-.,t
no cause of action upon the covenant \va.< ~hij
that the wrongful act of the hailitl', in Mi/iiig
mistake the goods of a stranger, ^\.■l^ iin! t
conduct or neglect of duty for «!iieli jii^-iircl
were liable : that the money reeeivuil hy
though not received for tlie iilaintili at lii-;,J
came the plaintilT's by virtue nl' tlie iiit.i|ilcJ
order, but (McLean, J., diss, on this pMintol
that the plaintiil' had lost his right t"
upon the covenant by |iroceeiling with the!
action, and obtaining judgnjcnl there. .lA'.li
V. Cool, Xiion V. sidfon/, 111 (). R 47(1.
An action against the sureties ef a |i;v
Court clerk for moneys received liy him i
plaintiil' having been referred to arliitrati'd
arbitrator submitted a special ease, stating
in 1858, the plaintiil" sued the elerl; Mr
sold to him : that the clerk then |Mnlii(K
memorandum of settlement lietweeii thriii, s
by the plaintiil', relating to .suits in tlu' IH
Court, which shewed a sum of t'.'W Us. SilJ
to the clerk ; and that tlie jii.lge thtrel
.against the clerk's wish, ami witheiit aiijj
ticulars of set-off having been givoii,
this as a aet-ofl' and dcducteil it frein tlw
tiff 's claim. The sureties, defeiulaiits iii tM
referred contended that the jilaiiitili 's il«
then sued for being a private acceiiiit a
the clerk, that sum was iiiipniperly --f
and they claimed to have it eieditoil tj
in this action against ninnevs siuti na-m
the plaintiff :— Held, that what had h<:4
ilivmaj;es f.iat the
t of no viilu
ing tin:
t(l llilu ;
wajl
Mil,
tulgliU'llt of the Ciiiirtd
,., Moss, .1., ilissciitiii;.', tliat m.
inailmissililo, fur tliat the lii,
tigation iiiiglit liavt', and fur ;
I had foriiK.'il a ni'iniinl inf t
unagt;» in tin; actimi (in tlit' w;„
jRifort' iMiuliI not 1)^! set n]i in iim
I V. Cliiirrh, -id »'. 1'. 3:1s. Thi
revursLMl in tlic Si!|n'iiiir Cmnto;
ary, 1S77, Stnnig, .1., diss.
' Ciifiiiaiit (i!iiiiii-<l Slii'r'iiJ' (,r l)ii,
■t Chrk, or Ihullff <iii(l Siinri,.-!.
I against a l)aili(r of a DivisimM luH
;ii!8 on tliuif cdvuiiant, uiiuM I'. 1
,. '2'), alleging that the li;iililli,ii,l,,
against l'>., \vicMi;;fiilly ;<iiz(ilaui
itiir's gnoils, and iX'i'i'ivud tlu' |inl
Aw jilaintilV havini,' surd Hit li;iilii
y Cdurt, th(.' liaililV issuod iin iiitei
nions, on whiidi the jinl.'iM.i' tlj
irt di.'tL'i'ininud that tiii' jilaiiitj
)()ds and was cutith'd tu tliu iim
lofondant, M'ith the costs : flntt
ifuscd to pay the iinmcy to tlii.'|iL,
on the plaintitr Jinieeedeii with
'ouniy Court, and issued cxltii
tdi was retunii.d uulla heiii.
iff" inegi'd that the ludlilf ImhIi
? .-.aiil money .-■0 iee<'ived liy liiml
to the plaintitV, heiuL; the iMitvJ
0, and had niiseouilueted iiiiiiMlfJ
1 the plaintitV's da> m^e. I'Ica/
that the said haililf did imv t'll
the money he had iveeividhy \irl
to wllieh the idaiutill' wasinmlj
niiseoiuhieted hiuistdf, iVe: - llillij
thedeelaration, Mel.e;ni,.l.di<:
iction upon the eoveuant was s
ingful aet of the haihll', in sei/iiiffl
: goods of a strauL;ei', was lU'i
legleetof duty for whieli lii-
: that the money reeeived k
received for the plaintili at tiiM
aintilT'shv virtue el the int.riilta
McLean, J.. diss, on this peintc
lintill'had lost his riudit li. >iio (
ivenant hy proceeding with tlitl
obtaining juilgnu'ut tliere. Mr.il
con V. .S7«.//on/, I'.l ^l B. ■tTli.
I against the sureties cf a Iftl
for moneys received hy him k
ving been "referred to arhitrati"t
ubniitted a s|iecial case, sla
o plaintilF sued the clerk Inr
II : that the clerk then i^ndr
im of settlement between th.111, ;
ntiif, relating to suits in the I'l^
ch sheweil a sum of tHOOs.SiH
rk ; and that the .jud^ro thiiii
clerk's wish, and witlniut anj
set-ofT having hoen givon,^ H
it-off and de(Uietcd it freni t,K
The sureties, ilcfenibnts I" t^
utcndcd that the plamtitl s
for being a private accmmt :i
that auiu was nnprupL'! 1.1
chiimed to have it eiTditeil
ion against moneys snict i^'^''!
ff :-Held, that what bad ijtcif
JTTDG]\rENT,
iitk'fiirniersiiit eotiM not hn tl,„= • I01'>
«,! that as the clerk e hi ,1, ?'? '"''^''ewa.l, , not bri„., a «„ , 1 •
, HieplaiiitiiTsued f; .. 1 ),■,.: ,; -,
LjinrMueties, on^h^^;:: ::;;,''"i^'«i]iff;
Itent recivercl by ],;„,,,„. ^'^^ ,' J«'"«. ''
liiuL' n.sgoji s umler evi.,.i.f; -'fc-nnsc r tor
Itof tt piaintii'iX' H,: ;■ :"T\7 \" V'^
'''^-''^'^nud'su ndrn'-rT' . "
•7"^' ause of actio h/u'""^: ' "'"'' '"'■ *'"'
tlio l;r.,eeeding.s there u.i" T'"' ' •'""' '^^'t 'a.t
[;'-'y'^and,:nX!'p.;;^!.-;''t''i-aset
the i)l;i]iif,ir .. . 1- ,' r"H''elvtlie .s.un.. . t|,,^j.
V!;J»n' of i"s"S!„rll^"!!'S;'''« ''V"-""*^'-V ''^ tu^y^^,;;;^ Th^a^inuiZT '" '''"■"^- "»«
^ ™"LS.:'.4vM"s 5,.;;::; t::;,t::f ;'"'^''' --^^ ""
M,;y,.h;.,lM.tpennitted,,ne. 4 :'''''"'- i^'^ '"'"d in ^ Cun>t^ -""T' '"'^'"'^ '"> tho
MlMr.lwhosewritof /i. ,a. was',' S r;^'"'/' ;'^"''"'''''^i"^''l J-utS <- 'IVS.'" "hich ,ie,e ?
!k ."no .4 the seizure,) to ^ -^i ^ '!;;"''« - '"•^''^;''- ". thii ^^'Ll )r''V^"''""' "'"^ ^1^
'. tJIIlO ot tilt' Hciyni'M \ 4- "* '^
«F)-goverthe;.,:S^^,U*yr {'■'''•
M: -llehl, that. I. 's in,], o ef V ;'"•'■'"'■■'"*
■i|Jili«tion was put in 't. '!'^ "■'"^''' ""
'todants, and t at it >' 1 .""'''''I''''' "1"'"
Kn:,ty: H,i,[^,JJ^t enonp,^,,,,,,,,.'^,_;;
(ir
.|i'd
:'.'•://.-,■«, 10 ('. I', cm.
tovcry against the .slioritrf,,,
, -la iitter iMoi
(e) Ort,.;' C,W.>-M
'^^A:';;,!:rrus,:;l;LT''^.7"''"-'ti.ei
fn.i-" the ground of us u ^"^'flf ,*'- '
M«^'e nnght still ^-' "V^''' that
-ri;ici)t against
"s actjuii oil
"i-'aiii on it.
'■'''»''"'-'»:,-.»;:;hi-:'"»;itt;'^'S:i«'^*'i'^'"""»
'^' '«--"te; n;;; -',:;:x.i5i^, -t«m | -v'S,:g'S/l;::i:::'i!^- "f '' i-sor for
'^t'"» against the ,s ,eri(f m,",) i '' "^ •«'• : ^'at after ,sau! ii,-o ,Z -^ '"^'- '^"■<">d plea
the covenant, who t e c ' '^, ''"-' J'''"'"ti<l' on
ispect.ve.ianwgeslor u ul ':' *" ''^■'•"Ver pro-
j'-t^-notintendnlgt- 'S,-''^
tlu: Ji.ry were thc-eforc lir f •;''''''.''^^^'' ^ ^'at
K;vo -la.nages aeeonin .Vy ' ' 7 ' '',^7^^ ■■'■"! 'lid
» 7"«o,,uence of the nmi: ' ' ' V'''* ''^^'•-•"'lants,
'';"'^' V" ''"en.pt tV ;,'"'''''«•■''*'''■ trial
allowed pnlgn.ent to I.e cSe ,,1 ' r"^'''' '"'*
''"'^'^ ^'''^tthe'-dumljr'^'"'^'"' .'•''' ""t ro°
all damages sustained n ^T'' ""• '■■•^■^'w^dcl
s aeti,.., ;.. . '•'•iLiers
au-
" " ' • *"»""". I-"/. \,A .»v»iml to o,..i ., .,.,..,.,..
titirr, "°";r-i . «„„.,
;\i::::;::;!^?;*;*"--t'^-.inx: over a railway
^-ti.ousj:;xs,^;S'"%''^-^'-^'-'-r
«iicces,sive action^ f . "''""t sustain several
,, jpinst thoi; ;„;:i;:;;;;? r'"|i'^'''^^'^*'"ti^Si 1^''^'' '^'"y -"tire 3
^former action! /Lt/T^i^^^^^^^ The ..,.,.■....•«. , . »•. <> C. 1 , 151
S aii'i Lihour
: was
W'ct against B. :~Holc tl.nf T ^'^ obtained
' V^^lict fnm. hrS ' *it "^ '« ^^^topped
^- -^^'"^ I'^arued judge
■V. aa
ter-
ho
/ned
i
'/'i^<
r ' •' ■ I • s
i^'i
'•i'iii
Junu.\U':NT.
rult'il tli.'it tlir" ncHcn Ix'iii;,' jdiiit, cvidi luc of ii
Bi'ii'iiiitf lii\tiility M-iiiiiHt citlicr ilcfrmlMnt I'lHiM
lint 111' rciM'ivcd, ,iiiil the |p|iiiiititl' tluM took ,i
VL'i'tlii^t (igc'iiiiHt Ixitli ili'l'iiiihiiitu t<ii' tlif aiiiduiit
of tliu Hotel anil ititcri'st at six jut ci'iit. Alter
jiidLjiiiLiit hail hicii I'liti'iiil ii|ii>ii this ami satis-
liitl. lit; Niud lii'liinlaiit im iiis iiiiiliTtakin^,', to
roi'iivcr twfiity-tdiir ]icr tuiit,, tlii^ tialaiirc oi iii-
tiiist a,t,'l'fL'il til 111! paid liy it : llild, tliat tlir
jiid;;iiii'iit ivciiviTi'd was a har t<> any fiirtlicr
claim lor intiTcst npdii the saiiii' notes. Mi'Kn'i
V. /m, •_'()(,). M. -JCS.
Declaration, that in eonsidcration that the
plaintiir, tor the aceoniinodation ol' the dulen-
«l. nt. WouM sij^'n a eeltain note made hy ('.,
liaynlile to the defendant, for SlOO, defendant
jironiised to olitain and deliver to the jilaintilV
aeeiiiints due to ( '. by dillerent [lersons to th.'it
amonnt, as seeurity : that the ]d.iintill' signecl
the note, hut the defendant did not ohtaiu the
ueeounts : liy reason wiieieof the ]ilaintitl' was
ohliyrd to )iay the note with interest, and the
eosts of a suit lii'ought liy tiie defendant thereon.
J)efendant jiloaded, hy w;iy of estopiiel, tliat in
the .suit liy him on the note this )ilaintiiriileailed
as a <lefeuee the same agreement now declared
ui>on ; that issue having lieen t.akeu thereon the
jury fi'.und that no sueli agreement was made,
and that judgment entei'ed on that venliet still
remained in force: Held, on dennirrer, a good
defence. McIaniu, .1., diss., on the ground tii.it,
(vs the agreement could have fornied no defence
to the action mi a note, the verdict on an inima-
teri;;l |iiea formed no estoii]iel ; and that the
flech'.ration was had, for the damages .•illcged did
not arise from the non-delivery of the accounts
jiroiiiised, hut from the non payment of the note.
CuiiiiMlv. J/<itiiiis, ■_'! ii. 15. 4(;r).
To un action for use and occup.ation defendant
pleaded, liy way of estojiiicl, that one V. sued
the plaintilt' for taking his goods on the same
premises : that the ]ilaiiititl' avowed under a
tlciuise to the present defendants for twelve
inoiiths' rent in arrear : that issue was taken on
such avowry, and ( '. recovered judgment against
the now plaintill's for L'2S, for such wrongful
takiiig ami costs c that ( '. was in possession at
the time of said taking under ami frnn the now
ilefcndant, and with his privity ; and that the
alleged arrears of rent <liKtr,iiued for was tlu'
Banio claim now made for use and occupation : -
Held, on denmrrer, jilea had, as shewing no es-
to])i)el, for tlu; judgment ]ileaded did not neces-
sarily shew that no rent was duo at the time of
the distress inetuiolied, hut might have heen oh-
tained on some other ground, f '/•diz/.w v. Buirin,
22 q. B. 21!).
Qua-re, whether judgment in replevin could
te a bar to an action for use and occupation. ///.
QuaTC, also, whether defendant in this case
could plead the judgment recovered hy C. as an
estoppel in his favour. /Ii.
The iilaintifT, on the 4tli April, ISIil, mort-
gaged land to L., who covenanted thereby for
<|Uiet enjoyment by the plaintill' until default.
To an action against f^.'s administrator on this
covenant, alleging an eviction liy persons claim-
ing under L., defendant pleaded that L. conveyed
the land to the plaintifF on the 3 1st ]March, 1S()4,
•which was the plaintill' 's only title to the land :
tliat the mortgage sued on was to .secure the
purchase money, and was executed immediately
' after the deed, .'ind as a part of the s.inii.'tr
action : tliat the plaintill' by the iiiHrt;:i..|. ,,
nanted that he was seised in fee, aiid "ii,^il
right to convey, ami lli.at the evictim |',|,),|
(if was an ai'tion of ejeetuc nt hn.n^iit |,'
heirs of I,, on the ground that I,, was if nn,',
miii<l wlieii he exeiuted the deid hii tiii.'
Mai'ch, iMit, wiiich was proved at I'm tri.i!
I the jury thcrcniiou found for tiie luii>; '}i
that the ple.-i w;is bad ; for the avi.iil,,ii,-,. ,,|
deed for insanity did not neee.-snrilv iiivi.jvi:
|avoid,'iuceof the luorlgage ; nor diirtUcsi,,,
a(iplic'alili' to the deed, exteml to the iiinrti;'
^ thai defend.'iut should ha\e plcaiUil l,.'s i||,,-|
directly to the mortgage if he wislud t" tw
validity ; and moreover tin- [larties lierowitc
' the same as in the ejectment suit, iiMrw.isit
tain from the record in ejechiunt tli.it tin
' covery therein was on the grcuiiii :illi ! nl /;
^ v. Ltiin-i/, ;!■_' i). 15. (i;)."i.
1 Keclaration by jilaiutill', as asKijjinf in ]„
I vcncy of Mc.\l., on the coiiiimhi cuiuits. ['
I that .\IcM. was not a trader within fiic iiiun
of the ilis<ilvent Act of iMi'.l. lleliliintiHii
way of estojipel, .setting out in full tii,i,r„ii;
ings and adjudication in tiie lnsi,lviiit I'm
I shewing that an attaciimeiit in iiiselvini'v issi
I against ^IcM., that he petitieiicd tin juili.^
set it aside on the ground, aiiKnig (itluts.'tl
'he was not a trader within IIk' ait, tiu't I
■ judge decided that he was a trailer, ainl tl
I such decision was allirnied on a|iiif,'il livi.ne
the juilges of the Common I'lcis ; llflil. mi
murrer, replication bad, as sucli ailjinliot
and proecL'dinga were not ciiiiiIm<ivc, ,it
I event.s a.s against a <lebtor of McM.. Imt wi
subject to (juestion in this court. dVi.ivv '
A nil,; XUi. B. --'.V-'.
Action on defendant's covenant tn nui
contained in a lease to him by phiintillni aiij
for nine years from l.'ith |)eceiMli(.r, ImJs,
yearly rent, payable half-yearly in iiiivaiic^
the l.'itli -luiie and December in eucli yoar,
ing non-payment of three lialt \\:ii ly i':..rt,ilii,e
of rent reserved. I'lea, by «uy of ...■^ti|iiitl,
previous to thi.s aclion the levee iiinw ,1
dant) sued the lessor (the now iil.iiiitilfliii I
(,'ounty Court, alleging in his ileelaratidii
liy the lease, in the event of total ilc^tniitiij
the mill by accidental lire the term slii.iiMcfl
and the rent be aiiportioiied ; tliiit ii|nii i
tlestniction on the .'50th OctoluT, ISliO. the j
term ceased, and the lessor hd'aiiic lialJc toj
fund to the lessee such part of the iviit ]i,i
advance as on the apportiiiimieiit >lmilil
found due, and the lessi'e alleunl in >iidia(i
that i^l.'iT.oO thus became iliic te liiiii. inn
he sued therein : that the Ic^mh- iijiaiuiliiil
action that the said lease was nut his ilini,!
issue being joined thereon, the Ksstr in if
judgment for the said sum of .''JliT.'iO. i'lisl
then alleged that the judgninit roniain^
force, and that the rent siied furintlii^
was rent accruing due after the saiil.'iOtli|
ber, 18()!). To this the jilaintitf rqilicili
after such tire the defendant cuntiniiol toj
and occupy, and still holils ami oaniiia
premises under and by virtue nf tlif kaa^
w<mlil not and did not jiut an ondtus^iiJ
or surrender said prciui.ses : - Helil, ai,"«J|
for though the plea of nun est faotunu
put in issue the destruction "f the mill :uii
seijueut determination of the tcnii, yet|
,\ !VH :i iml-t iif til'' •':iin« tniisJ
laiiitilV \>,V tlu' tiiui-t ;;:.■',', nve^
,^ ^...isul uv tVr, :ii\4 \\A K..
lil thivttliefviftiniiM.im.Uii;,
,,f .■i.ctiiuiit l>rouuiU ly tlJ
.fVdUiiil tlKil 1-. \v;iM i mh.iimJ
",.,uti>> tlu' ilwl "11 tlw :ttsl
Irh wiiH vviivc'l :U t'lr tviiil, mJ
,,n fouiiA f"V tUo1n'ir^:-ll.l<lI
, l,a,l ; for tlu' iVV.;ia;,lu',' .,1 tb
dill iiiit m'fifs;inly invclwtlii
iu...-tt;i>y^' •• ii..iM\i.Ul,..-.t.W
,i,ouiiniiivoiiii':iiuai..'>-.iiMmtt
„„,t^:,;;. if !,. wi.\u''l tn t..t 1«
loivovrr tin- !'■> '■"'■"'"''■'■' ''^'''' "'I
l„.ci.rtlllClltM\it,ll"l' «■''"'-<(
iv.M.nl in ...icn'hii.iit tl,;ittW
^v;,s(>iithfyiv>uia;il!.|/.l. b-
1,V vliUKtilV. as ivssi^iKT in iM
•„,, tU.' c'.miii.mi nmr.U. 11
Vuot a tiwlci- within IWUM,
„t Aft «'t l^'"'- , >1^'!!>"='"""
1 notliiiLT I'Ut in iml ti»'V'''«
,alc'atio.. i.v tlic h...;lv.ut r„uj
tu attaaiiiu.'ut in nisolvcuiy is,il^
tlrit \u' iHtitiniu'.l tk )u.ki!|
,', till! "i-uuiia, among "tlKK.tH
tvaarvu,thh.tlio=ut,tl,:it
,1 that ho ^^as a tra.Ur .1.4 t«
, was MliniH'a ou avv^'ii .v uiid
uestion iutluscnurt. <m'hM,,
15^5
JUDGMKNT.
194G
avf
I'V
.-kasutoUiml'V Vl;"'"'"," ■
', ;,ui l.->tU 1....1111-'. M.N
. avablo half-y-arly n. ..1 «
''";utoUU.'cohaUy..ulyi;;= J
,.a. VK'a, l.y^vayotc^t.t^l,
,1 is action tlic U's>fo [\m M
thclcso ^tUonowvL-itirtlml
• \kH iU in iiis .U-.lunt,on
oil lUL, 111 1 , ■ ., ,, J
rem: tl^^ *1>^_ _ ^ i,i, ,U,d
L- fl... (lofou'laiit coiitimi'-'i "
au.l .U.l n.it put ... J .
:rBai>lvvc.nnsos.^ l;^^^;;,,
tlvc l<lca "f."'"\ „,,,„illai
Iws lwi''.j{ iiccL'sxaiily nvi'i'vcil in that action,
I I ,), c (Icnied, wore adniittcd for tliu iniipoMn
l< sr.i'li iiiti""" '""' *'"•' h'ssor wan now I'Mtopiu'd
|i(i'.nli>'li"ti»i5 thcni. Toi/'i'i- v. l/nr/nii, 'M Q.
\l li)2.
I w, :ils". Tiii/'iii- V. /lor/oj,, '."JC. r. M'J, an
1 v,i, ;ii.;iiiist till' snri'ty of tlic Ii-hsco, in wliicli
Ijjjjluil that thi! jiKliinicnt ri'i'o\ civil, licin^'
liKirt" till' recovery a;,'ainst the iirincijial, was
|_j,»lili'lciicc foi- the Mircty.
I liiiisiiit hy acrcilitor. A., ami hi.< a.sbiyiicc, 15.,
btiifiira' ]iaynient of a lieht ilue liy C. ont of
lAeiiriHTi'il^ iif certain (irojierty assi^^'iied hy ('.
kl' it Iwi'l hceii ilechireil that tile asnii;ninentn
mm immliilciit anil void against the iilaintitl's
ktlii'filit: llelil, in another snit hy II. Jind
• i^siu'iii'i' '''L.'ain*<t l>. and ('. '.s rejin .sentatives
h^slHi't "f another deht dno hy ('. to U., that,
t!^^tll^t:lll'hll>,' the dillerence of ]);irlies, the
Lwiii tlic lir-it suit wa.s hindin.^ in the .seconil
I the iiiiL'stioii of fraud, (.lillkx \. J fun; 11)
hr. ;ti
D. A<ii(»i.t III' KJiriiiiiiif or Tort.
\l,ifiviiil.\ In ejoetnieiit, it aiijieared tliat the
Benii^iit liail sued I*, il: H. for trcsjiiKS to the
mehivl : that they had dia'cinled iindera lca.se
(ilelivMiiil ilcfeiidant to the (H'csi'iit iilaintitl';
ittlii rt'lilicatiiiH was, that such lease had not
nsunviiiii'nd, and the jury found th.-it it had
;lnli ; lleld, that the juilj,'nient in that case
jjnut romlusivc nor even aihnissihle evidence
bill,' [iliiintill' in ejectment. 7A<r d. Burr v.
hiwN, St,>. 1'.. <ilO.
Ille li!^-*"i' "f the jilaintitr liavinj; ]ireviously
i,i\m'il jiiil,L,'iiicnt ai,'aiiist defendant, in an
MOM till' ciivcnants for the jiaynicnt .'f money
tuiiicil in two several 'iiortyagcs on which this
Lnci I'jcctniciit was hnnight, in which iirioi-
Ln till' ilitVai Ian t had pleaded usury, and the
tetkriiiii having heeii found for the jilaintill',
fesfiutiiin issued against the lands of the
Irtat. mill the in-eniiscs contained in the
niMt wire, under I'J Vict. c. T.'i sold to
iilaiit. wliii at the time of the trial of this
BW.is in luissession, clainiing to hold under
jRiliVi'in the shcritl' :- -Held, tliat there was a
leieiit inivity of estate hetween the imrchaser
be ik'ritl's sale, (thcTilefendant in this suit,)
tttllicixi'cutiiiii against the judgment dohtor,
uWo tlif k'bser of the plaiutiil to estop the
.iikits li'i'iii setting up the same defence of
It- uiisiiccL-ssfully set up hy the Juilgnient
tor. miik'r wlii'.h the defendant claims. J>oi
U<y.Kdl:i,-2C. ].'. 1.
■(Ill, tliiit the recovery of a judgment in an
I'! aivenunt u]iou a mortgage, on pleas of
lest iurtum,' and that the defendant was not
-.Itihs alleged, and payment liefore .action,
iBiit estnji ilufeiiilaiit from impeaching the
llinortgage in fjectmentsuhsetpicntly hnmght
jioD, on the griuuul of usury. Edinhunjli
\kmKU(^(\)., V. Clurk, 10 ("'. P. 351.
yliaviugheeu set up as a dcfoiico to eject-
lonamnrtgago, the phvintifl'gave in evidence
-clutwoin hiui anil dufeiulant in a fore-
.tsuit on tlie same mortgage, which upheld
iorti;,ige, and in effect declared that it was
' mteil with usury : — Held, conclusive in
Is favour. Scr'qjtttre v. Curtis, 11 C. 1'.
letermiiiatiou of the tin .
In ejectment, where the defendant elainied
throiigli a )iurcliaKe at sherill's sale, it appeared
th.it the piirch.iser had sued the present plaintilV
in trcsiiass, anil olit.'iined a verdict and judgment
on a ple.i that the l.ind was not his, the purcha-
ser's ; -Neld, the court heiiig left to draw infer-
t-'uces of fact, that though tin' ficeliold on such
plea was not necessarily in issue, yet in the ah
senceof proof to the eoiitrary it might heassuiiod
to have heeii, and the |il lintill in this Miit w.is
therefore estiijiped liv the jiid.jnuiit. < 'liuiiilier-i
V. Ihilhir it III., •_•!» g. 11. .V.l'.l.
In ojcctineiit the plaintill' claiimd under a
mortgage made hy delciid.int, and defendant
under a deed from the plaintili', the niortuagc
h.-iviug lieeii given to .-.ecurc [lart of the pnrclmso
money. I)efenilant )irovcd ;• jndgnieiil in an
aition of coveii.'Uit hrought hy the plainliiragainst
ilcfcudaiit on this innrl^.igc to recover the inoiiey
secured thcrchy, in which dtfendant plcided
that the mortgage had hceu nhtaincd hv fraud,
and judgment was givin in his favour on that
issue: Held, that the ih'fcudalit eiudd not set
n[i the judgment as a ilelruce to this action, not
having placed the plaintiil ill sl.itil i|Uohy restor-
ing to him iMissession of the premises. Pin rtiU
y.'jloilini, •2:i (". I'. 17.-..
In ejectment, where defeudant claimed under
a slu^rill "sdced toS.iii.nle upon .i s,ih under an ex-
ecution against lands, it ap|ieared that the pur-
chaser from S. had sued the ]ircsciit jilaintill' in
trespass, tow I lich the present }ilain till' pleaded not
guilty, and that the land was not his (the plain-
titl"s), and had in KS(!l! ohuiincd a verdict and
jiidgnicnt on the i-sue joiiuil on these jilcas : -
lleld, that the plaiutill' was not estoppi d liy the
jndgment, for the recoi'd aloiie would not shew
that the title set up hy the plaiiititl' here was set
U|i and dclermined upon there, which it was for
the defendant, ielyingii|ioii thccstoppel, to]u-ove;
anil the plaintill's evidence in this action shewed
that in that case he did not attenqit to dispute
this defendant's right to possession, hecause the
title was then in ••mother ]iersim. Chandlers r.
Dollar, •_'!) (^ H. ."illil, distinguished, hecause the
inference drawn then' from the evidence had
heeii displaced hv the evidence here. Cliiinitiir.f
V. I'wjir, •_'.-) ('. V. ISO.
In ejectment, against two defendants, where
the plaintilt' claimed under a conveyance from
II., the defendants \int in an cxemiilitication of
; a judgment recovered hy one defendant, in an
action against two sons of H. for trespass to the
same land, in which defendants pleaded that it
was the freehold of H., under whom they en-
tered ; hut there was no evidence to comiect H.
with the tres]ia.ss or the suit: —Held, th;it the
Iilaintitl was not estopped hy such judgment.
CiimIiIi/x. JiiijoliUliijit III., 30 'Q. B. 33i).
Artiull.^ of Tort.] — In an action against the
sheritf .and liis sureties for not arresting a party
at the plaintiil "s suit:-Hehl, that defendant's
were not eonelnded hy the decision in that suit
in the County Court, with regard to the fact of
the arrest heingnuule, no estoppel heing pleaded,
nor cindd such decision act as an estoppel, heing
res inter idios acta. Mcintosh v. Jurri' i-t oL, 8
In an action for ohstructing ii right of way, the
defendant denied the right of way claimed, and
the plaintiff replied, by way of estoppel, a judg-
DK'iit ill Ill's favour in (i furincr Htiit with tlie
pliiiiitill', in wliiili till' s.inic rij;lit uiih in (|IIi'h-
tidii. .•ivcrrin^' tlic way (•liuin<(l to In' the Nunu' in
liotli MctioMH : llfjcl, a |;ooil rciiiii'iitinii, for it'
tht^ ri^'lit had liccn hmt, liy any thiii^; ot'i'iirriiij^
HiiKc the forniiT action, tlif clffcinlaiit mIioh' "
have ulicwn it. Jnliifnii v. linijl,, II (^). |J. |()|.
Till! thin! anil fourth coinitH <lmrj,'i'il iloftniilfint.
with olistnirtiiij,' the |iliiintill'M ri>,'ht of way
from his lainl o\cr lot 14 to ii highway, ami
Itat'k aL;aiii from the liij^hway over lot II to plaiii-
titl"s liinil. 'I'll a (lira ilcnyiii;; plaintitl's ri^ht
to tlif way, the iilaintilV ruplicil, Ky way of cstoii- [
jiel, 11 fornit'r rucovi'ry a^'ainst ili'friiilant for |
(ili.stinctin;; a ri^lit of way thin rlainiril hy the I
lilaintitl from lur saiil land " over lot II to a hi).'h- ,
vay, ami hark a;4ain from tlif higliway ovor hit
14 to )ilaiiititr's land :" Meld, on di'niiirivr,
IV'jilicatioii good, for that tin' issuo was as to tlir
existciut' of mill right of way in |ilaintiir ovur lot
14, and llmt was di'ti'i'iniiu'il liy tin; formi'r
rci'ovi'iy. /hini v. (Ii-iii, •_'•_' ('. I', 'J0-.
CiKii' for lihcl ill iiiililishiiig a ]irintid notice
(U'liying the |ilaintill"s litlc to certain land, of
wliiili the de.laration alleged that he was soi/ed
ill fee, and Wiiicli lie had advertised for sale, .'\lid
stating that one ('..I, had the title, and that a
Huit was (lendiiig in Chancery to estalilish her
'llidoulitcd light. The tiftli lilea alleged that the
|)]aintiir's only title was hy virtue of an inden-
ture of mortgage cxccuti'd to him liy one K.,
■who was then sei/ed in fee : that the said iiidon-
ture was given to secure iisniious interest : that
the said K. died iiit< state, and his heir gave to
the said ( '. .1. full lici ii:<i' to outer on and occti)>y
the said land iltiiing her life ; and tliereiiiion the
defendant, as her agent, )inlilished, itc, (as in
the fourth plea.) The ])laintiH' re|ilied, hy way
of estoiipel, a veniict and jiidgnicnt in an .-H'tion
of ejectment ln'oiight hy him against tlie defen-
dant anil one ]•;. \., to recover jiossession of this
land, in wliicli it was found hy the jury that the
paid indenture wa.s not ilkgul or usurious :
Held, on demurrer, jilea had, for omitting to
jiistifv the atateiiieut tliat a Chancery suit was
pending, that heing a very material part of the
lihel. Seiuhle, that the replication to the tifth
plea shewed iiii cstop]iel. Muir v. C»/'/, V2. i).
k 71.
Trcsii.'iss q. c. f. to the west half of lot twenty-
three, .Srdcon. of Kast (iwillinilmry. The defen-
dant ]ileadcd, hy way of estoppel, a recovery in
.1 former .ictioii of the .same nature, hrought by
him against the ]ilaintifl', settingont the ploadings
there, from which it ajipeared that the declaration
contaiiieil three counts, and in the first the locus
in (|uo was ilescrihed only by metes and bounds,
and by reference to visible boundaries ; in the
second, .'IS the west half of twenty-two ; and in
the third, as ])art of tlie west half of twenty-three,
setting it out by metes and bounds. The plea
averred the identity of tlie premises in that action
with the close in this : — Held, on demurrer, that
there was no real or npjiarent repugnancy in this
assertion, and that the jilea was good, JJuaii
V. Jikhanhon, 13Q. B. 527.
In a case against the defendants as common
carrier.i defendants pleaded that plaintiff sued
defendants in the Queen's Bench for the same
identical causes of action and obtained a verdict,
which verdict remains unreversed, to which
plaintiff replied denying that the verdict was
for the finnie identic-ill causcH of aitinii,
two eoiints in this action ehargeil ilci, ml
coinnioii carriers, the third cliai-;4i,| i|^
bailees, and the fourth was in truvir "'rl
declaration in the former ciihc lunt, ,„,i .
"'tin
■iliU I
ilii'iii I
'iit'iihrii (,iii
counts against them as eomiiioM iiii'i,,, , i
count in trover : Held, that the |,1,;| ^!^
Hiistained, for the e\iilenee ueceMmi'y tc, j||,.j
counts against defeinl.'ints as iiniiniun , ,.,.
would be dilh'reiit from tli;it rei|iiii'ti| t,, ,,| '"
tliein as bailees ; and moreover, tin' iilciititv
the goods in (piestion in this ninl tl„. f„n '
action was not proxed. /Iinrm, , y^,
H'M/rni /i'. ir. Co., (I c. 1'. '.'11.
rtiM
'i'r«
f<
<i
Action for iienning back w.iter hy .kIiiih. pL
by way of i'sto|ipel, a veiiiiet on tin pi,;, „i «
guilty in an action brought by the [ilainti'
a tenant for years under a ]ii'eileo('!i,«ri
defendant in title, for ereitilig tin nn[,\ ,, .,
Held, on demurrer, that siieli ]\\,-,i slii'«cil'i
estoppel, since, bad tlie verilii.'t iici'ii th.' ,,t|i
way, there would have been no i'stii|,|„| ^»
estopjiels must he miitii,-il. Smi/Zi \ H',, ///„■;,
ti C. I'. .T-M.
Held, thatrafter the IS Viet. c. ITH.th,.
till' could not m.'iintaiii an aetinii ^I'ain.st
ihints for unlawfully and wriiii^jinjh- ,.|.^,,, ^
liridge across the Twenty Mili! Vrirk, "^
im|ieilingtlie navigation, for tin statiitinxint
authorizes such erection, and given milv ;■ n
tocoiiipensatioiiford;\niage.siistailieil. IVilliiri
.I.--A [irior recovery fm- injury Mi»t.iiiu,| Lyt
erection of the bridge was a bar to tlijs aaii
Wiiiiirr V. (Jmit W'l. tliiii 11. If, (V, lT(Ul,Ji
Declaration, lirst and seroiid iiniiits fur w
uing bai'k water on ]il;iintiir's laiiil, Tliu i
I'eiidant by his plea set up tlie ciiii>.i'iit iiuil:
eseelice of the plaiiitill "s ;iiu'i'stiir iiinli'
the plaintitr claimed. The ]i],iiiitilt' ic|i|
former action had been hnniL'ht li\- iii
defemlant for a similar peiiiiiiii,' linrk i.
water : that defendant had lilnl jiis I.
restrain that action, und had in tli;it liill niiei
the same matters now ;dlegeil in tin.' ]ili';i, \iii
bill was dismissed. Iiejoiiiilei-, tli:it tin: I'o
of Chancery gave no jinlgiiuiit in n!<]ii'it nf m
ters alleged in the ]ile,i, hut ilisniisMil thcliiU
respect of other matti'i's : Ifelii, on ilvwun
rejoinder good. .l)i:iiii v, di'nii, 'I'lV. I'. '.'02
Action against one of two cdiivii'tiii:; ma
trates for not returning a eonvictiou. .AikicI
ag.'iinst the other magistrate for nut ntiirn
the same conviction was tried .it tin,'
assizes, on the same day and i-e.-iiiltcil in ai
diet for defendant, the jury liiulliig th.it tin ret
was "immediate," as reiniiicd liy tliu statl
<Jn the trial of this case tlie ilefeinlaiitipllirei
put in as evidence the reeonlof thmthiriiol
with the verdict cndorsiil tlu'i'teii, tlii' .iji' ^
which appeared to be to shew tlie ritiiiiinij
conviction by himself, and so iiuliivotlyt"
him a witness on his own helialf ;-llilil
the penalty not being a joint mie iirt I'liainsq
two magistrates, but several, eai'li liny
vidually liable for not nialiing tlie iiniinr re|
the record and verdict in fa\ mir ul ili'li'iuLi
the former case could not he eviiluiKo of|
return made by the (k'l'einlant in tliis >
McLellmi q. t. v. MrJnIi/ir, iL' C. i'. Mfi.
Phuntiff being uidcbted to ili.'f(.'nil;iiit <
promissory note for §100 and book ilt'lits,j
vni
lltiinil CllUHfH of iictinli. Tl,(,|
iit iK'tiMii flmr^'i'il (U'fi iniaiit, j
H, till' tliird ilmi;;..! ,i„,|„
tl folll-tll WilM ill trnvit, 'I'lJ
,llO forllllT fUHt' llllltlJlHil ,„|,
Llii'in MH I'liiniiiim (■.■irriiit ;i,i,|
lli'lil, tli.it the |ili:i ttvu, „j
ic cv iclriu'ii noiTKBiry tii,iHta|
(U'fi'iiil.'iiitx iiM (iiiiMiiMii ,.;,rr,u
•lit friiiii tliut ivi|iiii\il t,, ii^n
; mill iiiori'iivvr, flir iiliutity,
lucstinii ill tliiN ami ih,. f„rni|
■, iirovcil. Ihiii-uii V. ■/'/„ (,',.,
/v, ()('. I'. '241.
■lining lii"'k WiitiT liy niliim.
mirl, a virilict (111 till \\nuU
mil Unm^ilit liy the (ilainti'
i-AVn iuiiUt II pri'ili I't!".-!
itlc, fill' t'l'l'rtill(.' till »;iii| ,„„
lllirl', tlillt Ktlrli JiU'il sliiwi-
, liiul ttlii VtTilii't liii'li the nthi
iilil Imvi' lii'fii no fstii|i|iil, am
»t !>«-' mutual. Siitilli v. ir,fi7'„'i(
xft.TtliP la Via. (■. ITil.lli.i.lai
ni:iintaiii an ai'tiiui a;^iiiii.^t ilufj
,\\ fully iinil vniii;;l\illy rl'irtilljl
( till' Twi'iily Mill' Crirk,
iiavif^atioii, foi'tlu Ntatuti' ixiirm
•h crfi'tioii, anil ;;iui mily ;i rij
on fiiril.'iiiiaj;v,siiKtiuiii.'il. IVilliin
I'ciivi'vy for injury (■Hst;uiiiilliyl
u' hriilKo was a liar to tliis aitii
■,.„l Wislrrii J!, ir. CV, 17 11.11.31
,1, lii'st ami Hcriiiiil iiiuiit.< fur ]
rater oi> iilaintilV'M laml. Tl
is iiloa si't 11)1 till' roibi'iitiiiul
10 (ilaiiitill "s ani'cstiir uiulr
•laiiiii'd. 'rhfiilaintitVntI
1 had lii't'ii tiriiu'^lit liy In
iii' a Hiniilar ]iriiiiiiii; I'lnk of I
ilcfciulant hail lilril lii'* liill|
iii'tioi), anil had iu that li'Jhillej
ters now alh'gnl iu tlii> (ilfa, vvh
issrd. Ivfjiiiuih'l', that the ('(
^avc no jiiih^'UKiit ill rl■^lllTt nf p
li the jiii'a, Initilisuii->"1 tlu'l'ilj
irr niattm-s: llcUl, mi ili-'iiuir
1. Dam V. f.','i(.v, 'J2 t'. I'. 20
liiiist ono of two iimvii'tiiiL; maj
It roturnin,!,'ac(iuvii'tiii:i. Anacf
itluT nuK^isti-atf fur imt rttiin
loiiviction was trii'il at tin; ^
[if same day ami ri'siiltnl in ail
[idaiit, tlu! jury liiuliii.L; that tliireM
lliatf," as I'ciniircil hy tho ft.i«
lof this casu tlii.' lU iVmlaiit iiIKt«
lidi'iR'ethurccorildl tin. ntliiiracl
jdiut uiuhm^td tlu'Riin, thu.iliji'
[red to ho to show thr Ktiini "l]
|y hiiiisflf, and so iiiiliri.vt:ytiiif
Iss on his own hflialt ;-lliliM
Tn„t hcinK a .joint mii' as i'-'an'S?
•atos, Im't sovrral. fai'li UW
lie for not making' the vmKr r*
lul verdict iuliiviiur 111 ildoiuli
[case could not he evulcm'o oil
V 1)V tho dflVnilaiit m tins -
ft. V. M'-li'tUr'; I'-i •-'• 1' ■^''''
Ling iudchted til ;l^'f^"fl'| ,
loto forSlOO ami hook adib,
llJl?
JTTDOMKNT.
The liU
D.'O
tai :i niiirt^^a'.'o to liiin for C.'^0. 'i ho lunl in
iiiiiitK'iU" I'oiiiiirisi'il was sold liy iijaintilt',
iftiT |iayiiirnt of tlio prior 'iiriiniliranct'n
|j II tlitl'i' w.is loft tlio sum of if'Mi to he up
ITj ,,,, lie I'l'iidant's nioit;,'a;,'o, on piiymint of
Till 1 1 "I"" di'fiiidailt oxrcnfod a disoiiari,'!' '
f,,,|. jlrlriidaiit sii!i»oi|iiinHy sued tho
„,i;ill ill till' I'ivisioii Court for a li.ilaiu'c on i
liii,[i. .iiiil I k ilohts, and roi'ovi'ri'il tlio siiiii
jj rliiiiild' now sued for fraud in dotViid
it h.lvitiK ""'■'' '''"' f'"' "aid iioto, allii;ili>,' that
rtfiiiiiiil iiiiirlMaj,'o was j,'ivoii dofrml.iiit agrood
,n,, lip Slid nolo wlii'ii tho iiinrt),'a>^o was
llrld, that tho pliiiitill' ciiiihl not,
L.|.,|]iiij{ ill tho hivisioii Court suit, m.iiiit.'iiii
.aoiiiiii. %'/""• v.. SV./Zi//, 14 C. I'. 'JTr).
Tf^,,,,;i(in fur lii'i'aking and ontoriiig tlio Routii
daiiiiH iMiild havn hocn replied hy wiiy of oMtoii-
pel. Iliikot e, Mctriiiiiililaii I! lilw ay Co., I,. U.
•J ir. 1,. IT.'i. and lleikitt r. Midlaiiil Kiilwiiy
Co., I« H. :» C. 1'. .S-.', (•oinnioiif.d upon. 11 n/,/,,'
V. Itiijlnlo .(• /."/■' Ihnn,, A'. II'. r,,., -JiK,!. II. l.VI.
.\l\'. AhSKINMKM' n|.' .Il |ii;\li;,Nls,
.'"ii'inhle, that anydefondant or en wiirety e.innot
eiiiiipel aii'assiHiiiiieiit tn lie made to him of tho
jud^,'iiu'iit l>y tile tilaiiitill', iiiileHs siieh ih rmdant
or surety has paid the w hole of the deht. /n rr
Mr/.,„,i V. ./ii/K.-!, •_• I,. .1. .N. S. 'Ml I'. C. A.
Wilson.
Meld, that lilidei' "Jf! N'iet. e. 'l'\ fris. '2 and
H, the aliseJice of a formal assimiiiieiit Mill not
prevent a siiretv froin iiiforeiiij; .a riiiu'dy wliioli
lie would have if an ussi;,'nnieiit h.ad hi en o\i eii-
toil. CItU'h.Mif V. <l,,i-(l,,„ ,t,il., 4 1'. K. IC.».—
U. L. Cliamli. I'ieliards.
(tv aiTL'S of the east h.df of lot tweiity-tvMi.
iuilLjnu'iit reeovered hy the now defoiidaiit
BiVt till' 1111^^' plaiiitiir and another in a fornur |
nil iif trespass hriuiL;ht hy the now defendant
l,r.;ikiii^'aliil eiiteriii;; that part of the half j ( 1. made a notr to S., who endored it. Defr.,
I IviiiL' mirth of till) south forty aeres, and; l>. and \V., also cniloiMed it. 11. diseoiinted the
-,rnii" that the trespass iiiiweomii'laiiieil of and ^ note, which was sued on, and jud^'inciit and uxo-
j(,,J"|,a,«, iplained of ill the former action ' cutioii ohtaiiied a>,Miiist all the parties to it. \V.
Ktiininiiiittiil on the same iiieeo of ;,'roiiiid ; satislied the exe. iitioii, when upon C. .uid 1).
Wiiiiire the now jilaiiitilV had contended iu paid him (he lia\ inj; heeii ii mere aei omiiiodutioii
viiiRT action formvd part of the south fort V endorser), S. and IM!. eontriluitiii^ notlilMj^
l„it which till jury in that action hail towanls the ii.iynieiit. C. and l>. then upon
apiilieil to I!., tinder '2(i N'ict. e. 1.", ss. '_', 3, for
an assignment to them of the judgment so ob-
tained hy him, in order to levy fnnii .S. uiul
hod. their share of tlio liahility. This R. re-
fused, S. and l>e(l. having iiifiuni'jd him that
liy agreement they wi'ii to \> irliuved of liahil-
ity ;--IIcld, on application 1., (i. and l>. foi' ivil
lH"
tn lie north I'l the south forty acres ;
1 .'null plea hv way of estoppel. Liiiisdr
;;,;, I7C. I', h:^.
.aiitiir imist he set aside when the hits-
if .S.I a.lviseil, might raise the ciuestioii [
kktlnrlie was not doininiis litis. Ciiiiijiln II v
■1 III .«•> II f 1 njtLi
5*1
Inan .u'tiiiii I'y Imsliand and wife, for slander
[itlivwifc ill ai'ciising her of adultery, it aiipeared
Ijtlh,' liiishand had sued the [lersoii accused of
j,;„|;,|t,.ryfiir<'har.;mg which this action was ' ;;,:;,^,,, ^:,;^,„;,|„:,,'(; f„ ,;;,!„„ ^„ them tlie' jmiy-
|rd,t, :ui.l I'ecoverod a .indgment a,-;iiiist liini ,„,,„j_ ^\^.^^ „„ ^i,,, .i„ti„,,i',,. „,■ li],ilii,,, r. Dick-
,,„a,tinii (It crim. con., and judgment had ^,,„_ ._,,, ,_ ., ,. ,. ._,._,;,^ ,h.,i,h.d umlor the
Ka^iviii in ( haiicry against he wite on the ^ .■,.,\ .^..^^ i;, /, .j„ \i^t. e. ;»7, «. :>, which in
,;,„1 ,„■ u. ultcry. Ill a .suit hi'inight I'V 'cr ti,;,, .....spivt is the same as Canada Act, '.'(i \'ict.
„„.; the hiLshand for alimony : Hold, th.it ^, ,^.^ ^^ ., .^ t,,^, ,,,„„.t ,,,„i „„ .^. f„ ..^^^
,!,, tlir .iRiiuistanccs the yerdi.'t ent.Tcl tor j,,^ ,„.,,^,,,_ y;,.„„.„ ^._ (,.,,,,„ |;, , ., p, .j„.
. .'lY' .i. 1 4- ......I.. ■■il..... il... 1. *'
All action having licen hroiii^dit and a judg-
iiioiit recovered against two defeiulaiits on a
I,,/; o,") (', r. r,(')S. contract hy thc'iii to carry cert,aiii lumher, the
verdict and costs were paid hy one dcieiidant,
who thereupon, without .ipplyiiig to the pl.iiiititl'
4. Other ViiM-^. or tendering him any iiu'emiiity, is.«ued an oxo-
ciitioii ill the iihiintiil's iKiiue against tlic other
.ta.wur.l upon a (luestioii rcsjicctiiig real | ,i,,,;,,„i.i„t, f,,,. .„n._i,,|if „f t|„. deht and costs :—
ilMty,i///(',.«7// (•,/,.,•/•< r/, i.s hinding upon the n^,],!^ dearly not warranted l.y the •_'(> Vict. c.
tu.< s„ far as respects the rights ot either 4-,^ .^,„i tho execution was set aside. Putt^ v.
inug iir ilifeml an ejectment against i\\^'\ U,U- H uL, -Mi O. W. AUS.
!h„ i\. Mi'Dniuilil \. Li>ii(i,i(l [>,. \M\.\
,. .. . 1-1 Where a suretv ii.'iys a deht. and claims an
Ita ,1,11 .oatum to compo a railway company ,„,i t .,f ,, j,;.i;„i;,„f 1,,. the creditor recov-
«l.itrati,tlitMi,,estnm whether the plaintills ^,,.^,,f ,,^i,,^ j,,'„ ,'^^,,,^, -^^,,,^ j^ -^ douhtful
ih;i.< iiiiiu'iimsly altected, uinler tho admit- 1 „.i, n. , xi ,., ..^ ; . .,• t f . t 41 ,
J . f , i. i xi 1 wiietlici tile iiayinelit is ;i .«atlslactioii ot the
If s, was raised hy return to the mandamus, ! • , 1 „ ,^ i.i, ' ,' i-,. , ,1. .■ ^
„,.,,'. ,, , . ^.,,.. e ■ iiili'incnt, the creilitor iiiav proiierly make the
li.riiiiil V (li'cKled 111 the i) aiiiti 1 s lavour. .'.,: 1 ... 1 1 u "i f ,. , ^ ' ,. ... 41 a.
,. 1- ,, . 1 1 1 1 assi;;nnieiit, ami leave the ilehtiir to set u n that
arlitratum then took place, ami an award 1 ,,„f^:;,^^. jf j„.„,,,„,i,ms ,tre tikeii on the jmlg
,111 which the plaintill sued, ami a ,„^,„t_ cA,,,,,,, ,-. dUh.pU; 11 Chy. 4)i.5.
■"''.w.^! Iiiid rcsultiii
g m a verdict for defeii-
iH,wliioli w;v8 set aside after having gone to
itWrt iif Appeal. Defendants then applied
41 il [ilea that the land was not injuriously
tel, urging that when the niandanius was
'Kil tbero was no right ot apjieal in such a
'irpunil tluU they shouhl he allowed to rc-
tk' niicstion hy plea in order to obtain such
it. Tlie court, under the circumstances, re-
i the aiiplieation. Quiere, if the plea had
sUowetl, whether the decision on the man-
To a suit hy a surety against the creditor for
an assignment by him of a judgment .-ig.diist the
debtor, the debtor is a necessary party, lb.
XV. FoRKKi.N .It'lMIMKM'.S (IK OuDKIt.s.
1. Validi/i/ and Kffvct of.
[liy J,> V'lrt. c. 24, •'*• /, '"" n suit hrotiijhf in Upper
r Lim-i)' Cdnn'hi, on a jmtijment or decree not
.^^^'■£>^;',.
lOl
■r-'-'*
I' i li
' I I
I 1
f I
.T !
olitn'iiicd ill /!ic iithcr .tccHoii of /!ic jirnviiiCf, I'xnpf
<(.-( //((•/•( iiidj'Icr nil ii/i(iiifil, 11111/ ilij'iiifi' si't lip, III-
tlia' iiihjht limv l/ci ii hi/ u)it(i fill- oriij'iiinl suit, mini
III' jiIiik/ii! tu till' suit on till' jniliiiiii-iit or ilcrrir.
But tliiii liiif liii'ii ri/iiali(l III/ of) ]'ict. c 7, s. J, ().
See ahc «••.■. ..', J iinil 4, <>/-''' '"^'t''- '"• '-'4-
AVIiuio a foioijiii jtidgnicint awarils a (.'otniii
del)t iiml costs to liu taxed :- Held, that surli
costs were locovciaMc in an action on tlio judg-
ment, on proviii,^' the anionnt at wliich they
were aflci-'.vards taxed. I full v. Arnioiir, ii (t.
S. 3.
In an action on a foreign judgment, the defen-
dant cannot go into evidence to shew that on tlie
merits in tlie torcign court, tlie judgment slioidd
have been for a U.'ss amount than the sum de-
creed. I{o,ri/ yjlooiliiiiiii, I']. T. 15 A ict.
If a foreign judgment against two defendants
ho several in it- terms, the court here will hold
it good as according to the law of the foreign
country until the contrary be shewn ; and the
executor of one (U ft ndani may be sued, although
the other defenilant survive. Ih.
In debt on a judgment of the Court of Queen's
Bench at ^lontreal, defc-ndant ])leaded tliat that
court had no jurisdiction, in the matter in which
the judgment was rendered ; .and also that de-
fendant was never served with any proce^^i
whereby he could be or was notilied of th(!
actnn, and that the judgment was obtained
■W'itb.iut his knowledgf.' and contrjiry to reason
ana justice :— Held, bad on demurrer. Mi:-
l^lui-'iuii (I til. V. jU-MUhin, ;} Q. B. 30.
Declaration on a judgment of the Sujierior
Court of Montreal. i'lea, that defendant was
not at any time served with any ]irocess issuing
out of the said court at the suit of the j)laintitrs
for the c uises of action for which the said judg-
ment w.is o'otained ; nor had he at any time
notice of any such process ; nor ilid he ap[)ear
in the said court to answer the said ji'aintill's : -
Held, bad, on dcnnirrer, f(U- luit shewing that
the ]iro(-cedings were so conducted as to deju'ive
defendant of tiic oi)iiortunity of defending him-
self. Moiilri'iil Minim/ Cu.njxuii/ v. Cntlilicrtson,
9 Q. B. 7«,
To dciit on a judgment of the Supremo Court
of Lower Canada, defendant pleaded want of
service of jirocess, &c., want of knowledge of the
proceedings of the plaintiti's in the said suit, and
that nt t!io eonnnencement of the action in which
the judgment was obtained he, the defendant,
was and from thence hitherto h:ith been and still
is resident without the jurisdiction of saiil court,
to wit, at Toronto, in Cpper Canada : — Heh',
bad, on demurrer, on the ground that by the
plea the defendant should have denied his being
formei'ly iesi<lent or domiciled within the juris-
<lieti(ni of the court in Lower Canada, and his
having rc'd or jiersonal property therein. Oao-
thicr v. n/i:;l.t,i}C. P. L.'2.
The Respondents obtained a verdict against the
appellants in a foreign court in the United .States,
in tresi)ass de bonis aspoitatis, ami sued on such
judgment in assumpsit in this country. The
alle<'ed trespass was committed in this country
by K., one of the <lefcndants below, in his capa-
city of sheriff, anil in execution oi a writ of
attachment sued out against one T., an abscoml-
ing debtor. The eighth plea set out that defen-
dant K. was .sucli
1 «herilF, &c., tl„. „•;„
attachment under wliicli, &c., that tlic i.
below claimed, f^c, by virtue of n . .1, ,,,„,
them after i.i.iHiiii/ uml ihlir. i-ij ,,f said wit
^ Averment, that at the time of attachiii" ;iiM
I ing, itc., the property was bv the law ot' C,
in said T.,and subject to the said att„,ln„ei
I that ilefendant was then and always hi,cu
: l)ecn, kv., a I'.ritish subject ; never ivsiiL-1
I in the L'nited States ; was never subject 1,',
j laws of the Cnited States for or on aen.
said cause of action : that bvtlie law.s „t ( im
the plaintiti's hail no ri;.dit of action ii .ain-t
defendants, and that tlie judgment I'li tl,,.
^ eign court was contrary to natund justice, ,t(
; Held, on deuuirrer. plea bad, Kojiiusoii ('
Blake, ('., and McLean. .L, diss. A',, '
v. il'(/;'/v ,/,/•,/ ((/., l:{(^l. H. IS, in Aoiieal.'
Semble, jicr Luliinson, C. J., that enmity
nations docs not extend so far as to veiM
lit
lit
'■;/«
incumbent on our courts to enforce a jud'n
against one of their own oilicer^!, obtaiiud'
j foreign court, for an act done liy him un.'cr
I authority pf their process; and that in ^u,
] case our courts may stay the ;iLtiou on t!:e
eign judgment, and compel the plaiiitiB
j )iroceed on the original cause of aetimi.
I Macaulay, C. ,]. C, 1'., ;iiid Spraggo, V. ( . _
I fact of dei'endant's acting m iiis otlicial rapa
, makes no dill'ercnci^ and it woidd imt nup
I the foreign eoui't of jurisdii.-tion, nr be i'. re;
for refusing to enforce its judgment in
courts. II).
Per IJobinson, C. ^., r)!ake, ('., and Mr
J. — The statements in the plea of propertvl
in T., that the seizure was legal accnr'.lia
the law of Canada, &e., wore positivr
: ;nents of facts. Per ■'.lacanlny, ( '. .J. ('. p. I
I Spragge, V. ('., they merely stated a].]
I view of the law of Upper Canada. //;,
i Semble, \wr Spragge, V. C .— \\licro a fol
judgment is ittenqited to beenrorceil in tlie|
country where the cause of action arose, tli
, feiuhint may (piestion the decii-ion ot' tlie l'o|
couit on the merits. Per McLean, .1.- Wli
j is alleged that certain facts were iilfiridl
I ])roved in a foreign court, it will liea<:-.raiii
j the proceedings were such as to adiait nf j
- proof being received. ///.
In assumps,it on a foreign jtiilgniunt, tliej
^ ment cannot be impeached for .-my allegcl i
in the proceedings prior to jiidgmciii., iiii'lei
general issue. Jlcl'liirmu <t ul. v. MfM'd'
(i. B.. 3-t.
' Assumjisit on a foreign jndgment agniiisl
'defendants. Defendants iiieadrd tliat
them had never been served with pincrs
' had no notice of the procceiline> in the f(j
; court ; — Held, bad, as setting u]i a litlVuJ
i both defendants, whiih ajipiied milv
IJiiroa V. MrliiiiiU'f ul., 3 Q. 15. 30.-|.
To debt on a judgment rendered in iia
rior Court in the United States, liiiVnl
executors of the judgment debtor,
1 tlie testator at the tunc of and lur tvniitj^
I l)efore the recover}' against liiiii, and tia
j death, resided only in this prnviiue ; an
the cause of action, if any, fur which tii(|
j ment was obtained, arose hero, and ii itf
1 the jurisdiction of the foreign cnurt ; ;ini
' the said alleged cause of action did noti
icviff, &e., tilt: warnmt
icli, &c.,tliattlievl,uut
v virtuf iif :i ".ilc M:i>le
;/ (/./Ir. ,•;/ iif wiiil writ,
; thnciif att:whiii-;nia i
,' \v:vsl>V thiilasv oi V.t
wt to t\u' sai'l atlieluiiel
tlin> ami always Mur
sul>i'.-ct ; iicvcv ivsiil '
, ; wasiievur sulijcit t.i
I Stati'rf fi'i' <iv on ;u-'"'iii11
. thiit 1)V the laws ot t iiul
.'ori^lit of action a.^ain^ :
'■it t\u! .iuclL'ni.'ut o! ill.
travv to iiatuiT,! jusln'i', Sod
,-, ,,ifa l.a'l, r>o\.in>on, OJ
l.l..an. .1.. ais. k.'M
r.i t>. H. it^. >" -^I'l'^'"-
,l,in«on, (■.•)., tot oomitj
exton.l so far as to y.n.l^
• courts to cnfoiro a pl-n
,111 iitlii'"rs, oiitanii'il.1
leir <iwu oini-i ,
auact.loucl>ylnn. nu.kTl
, m.o...s ; aiul that u> ^ui
maystaytlK. a..onont;e|
un.l comv.1 tl>c Vlauit.fi
..vi^;iual cause ot action.
(- V, ,.,1(1 Svi-at'UO, N . * •■
fsactinj^m his .^W cava
..„co, ami It uouia not o.
■t „t iuvisdicti.ni, or Lc .'- i
, uiforce its jnagiucnl ml
, r .1 .Blako, ("., ana M-
,;„tsiiitiicvW''f,i;j';i;;:3
1 «■.. were IIOKUIM
Vcr Macanlny, ( ■ •)• * • ,,
tlicv merely statcl nVl'-lU
,f Tppcr t'aiu'la. /'■•
hiiragt^e, ^ • ^- , , ■ , .i,„|
\ui;tc.lto1.ceno.rccan,ael
,J.auscofactiunar..c Al
■stiou the .U'csion o til. t«l
"its. lVrMcl.ca.1,.!. 'A
; certain facts ucro ..l\. v.O
:oi., court, it wiin-a<.-r.i.u.
'X-ereMichastoaaiaitiifl
•eive.l. /''. ,
i.M.Li...-.--. ""as
llli.
1S3
JUDGMENT.
1954
.oaehelforanyalle;;-!*
juil;.;nicn
T/./>A. :«or. " «'. V. .U'.'/'l
c IIUI'^ - . ,
„s prior to ju.^nicn
r> 1 . I ..I
tfn six years lioforo sueh recovurj-i or the
mtiu'ement of that suit :— ITultl, l)acl in sub-
ace. Kii-l'H <t '!>■ V. Elliott ct al., V.i Q. B.
,111 action on a judj^nncnt reeovorcd in the
.tme Cyiirt of the state of Xew ^'ork, dofeii-
,.,,]ji,loil that the jiiilgnieiit was on ajioliey
siiraiiec made hy them ti
liiiiila provision that it s!
it'Ji'
one 1?., whicli
uld be void in
i k'iii^' iissiyiied witliout their previ<pus
mtinwritini,'; .'ind that they never consented
jDV ,is<i<iin'ent to t)ie plaintiirs, wliOi tliere-
', will not sue tliereon. To tlii.-i the iilaintitl's
1, tint after the hiss en tlie policy had lieen
iiiid. B. assij,'ned to the idaMitifl's liis riyht i
to defendant when the judgment was obtained,
which was after the ]ihiintitV had re;;i.stercd liia
bill of sale ; and he alleged that neithei' M. nor
defeniliMifc were Auieriean eiti/.ens, or resident in
the States : tliat M. never had been within the
jurisdiction of tlie ( )hio court, and tliat no process
was ever sei veil on him, nor had he i'.iiy knowledj^e
oi" the proceedings there - whcrefoie lie alh'ued
that such court had no jurisdictioiii and tliat tho
proceedings were void, contrary to natural justice,
and fiMudiileut. Defendant, liesidcs ileinurring,
replied hat before M. assigned t<p the iiliintitl"
defenu.mt attached the vessel in the Ohio court
for a debt wliieh M. owed him. and afteiw.irda
recovered judgment and execution in tlie suit,
under which the vessel was snld according (o tho
Mich law"
|t.i„:,furtlic recovery of the inoney jiayable : ,.^^^. ,,f ^^^^^ ^^.^^^ ^^, defeiMlant : that bv
=ior, ;iii.l_ the said B not being a resident of ; ti,^, pr„,„,,.ty within the state of any person might
aie ,if New ^ oi-'m tlie pla^mt.lts, m accord- , ,,,^ ^-^^^^ ,.,:;, ,1^,,^ ,^,„,^ v.hetheV either .lei.tor
.with the laws of that _statc, sued tliere in ^,. ^,,.^,,,it„, .....^ ..j. ^..^^ i,.„i |,,,,,„ ,^.,i,icnt in tho
.„ a foreign iudgmcjg"^
I Defendants \Ai::vM t"''\
Iv^r been served witlivv-
I of thel.rncecain.i>"' 1' 1
I, ad,=>«-"iug.>pa;f
I a iudgu.eut rcnacrca m .^
Ti.wn names as such assignees, and recovered
Eiiait, as by the laws of said state they had '
fit til ao : -Held, ii good replication, fori
shuts by their acta of ineor[iora,tion being (
fctlv clcsigncil to carry on the business i
Ll, ana being iledared liable on iioli'
state or not, and seizure under an attachment
was made eijuivalent to servii.'c of iirocess ou
the debtor. To this the plaiiitilf demurred : —
Held, plea good, forthe action beiiigin ["'rsniiam,
the mere fact that the sehoonvr was laid nii for
jttsio
ti'it a l)re.'ich
f tilt condition ; and tlie right
bi'liintiffs to sue in their own name by the i
;;ii'liw\vasa 4Uestioii of procedure, on which I
imiiuist govern. In another jilea the defen-
set up a further provision in tlie ])olicy,
artsi' (if loss the same would be jiaid within i
ilaysatter proof and adjustment, and alleged ,
wjiniiifiirailjustment was over made. The j
iJs reiilietl, that when calhid upon to pay !
Isnts refuiod, not for the want of such !
iira.ljustmeiit, but for other and diflereiit '
lullt-'geil in writing: that they thereby,
iin^' til the law of New York, waived the
itifiii iilcailcil, and under said lav became
anl saiil judgment was recovered, ujion ,
■i -Hill waiver, \\ithout any evidence of!
i.rr,.ljustmciit. Held, on demurrer, I'cpli- j
y, fill as the same defence could have |
ikileilinthe (U-iginal suit it might, under j
it. '24, lie set up here ; ;ind whether the
tonwa-s waived or ]ierfornied was a matter
bceiiuly, on wliieh our law must jirevail.
Ilf((i/.v. Pniriiirkil liix. Co., 21 (.). B. (il'i.
Itviiifiirasrhonner. The defendant avowed
to M.'s property within the state, whether it
could b(^ given efbict to here for all pur] uses or
not : that sueh law so limited eoiild not be hehl
to be Contrary to natural ju-tii-e ; and that the
sale there must prevail against the iihiintiH"s title
ac(iuire(l Mhile the vcissel was attached. Jliini
V. JllrtrJ.rr, '-'iS Q. B. -28.
Tu an action mi a foreign jud.rmeut, if tho
judgment is not ini\)eached or denied, it is primA.
facie evidence airainst the defendant. Miiiuiiinj
V. TI,oiiij<yo)i, 17 ('. 1'. <)01).
Ill an action on a judgment obtained by plain-
tifl' ag.iinst defendant in the rnited States, de-
fendant pleaded, 1. That the ju.Iginent had been
recovered for iiiouey alleged to have been jiaiil
by ]>laiuti(l' for the use of d.fendant ; and that
he was never indebted as alleged ; 2. Payment
before judgment -.^ Held, J. Wilson, .)., diss.,
that the onus probaiidi was upon defendant. Jb.
In an action on a judgment recovered in Scot-
land for breach of the defendant's ngreement to
deliver sewing machines to the plaintills, the
lefendant pleaded that by vittue of the agree-
llif vossil was his; to which the ]ilaintiii'
^dtliatiiiie M., owiiinL' an interest in the ! ment made' between the jiitrtics the plaintitl's
tr, wliitli was a ( 'aiKulian vessel registered ' were to be the defendant's soU^ageiit for the sale
^teiiiail his interest by bill duly registered ! <if his sewing machines in (ireat Ib-itain, and tho
« I'laintitr, who bonglit for value, without ! defendant was to be ]i;iid for all machines sent
»..i.Winilaiit's claim or pT'oceedings : that to the plaintid's after the plaintiiVs had sold and
received payment for the same : that tlie defen-
dant was t(') furnish a specilied number of ma-
psitl kill hceii l.iid up l'(ir the winter at
ii'l ill till! state of Ohio, where defendant
Jill, ill a hical court of limited jurisdieticm,
uilniiralty court, to recover an alleged
lit sail! suit being a personal iietiou and
hprxeciliiigin rem ; that M. not being within
Ipislictimi, defendant caused the vessel to
chines jier month, and the iilaintitls were to
furnish the defendant with a monthly statement
of the maehines sohl by them, and to remit
therewith the price of the machines so sold anil
paid for, at a certain rate, which the defendant
ill, ,inil hy virtue of such attaelnnent guaranteed. And the defendant averred that ho
tjnilgmwit and execution, under which
iiscil thu vessel, and took a bill of sale
far (if the court. The plaintiff then
««rtain tacts shewing, as ho also averred
f to Uct, that JI. was ill truth not iiulebted
123
(lelivered the inachiiiea in accordance with tho
agreement, and in all things performed it, until
the plaintitrs neglected and refused to furnish
such statement and remit the moneys received
by them as aforesaid ; and that the defeiulaut'»
'1' ',
1 H
m"
!• Mill;!
M
'■ ly'l^l
H
1
■ :'li
i
:^■ ii'li'i
!■:
ft
'MK ; S
1955
JUDGMENT.
s'.
refusal to send any further nmchincs was caused
sololj' by reason of tlio plaintitf's' said breach of
the ai;rcenient : — Held, by A. Wilaon, J., and af-
iirniud by tlie full court, plea l>ad, as not shew-
ing either that the performance of the plaintiffs'
covenant was a condition ])recedent to perform-
ance by the defendant, or shewing imy f.iots from
which it might be inferred that the ,ilaintiffs'
breach entitled tho defendant to consider the
contract so abandoned and to rescind it ; and tliat
the defendant's remedy was by cross action. J'er
A. Wilson, .1.-- There was no necessity to aver
in the plea tliat the defence was one which might
have been set up to the original suit, so long as
it formed a good defence according to our law.
Auclitcrhmit' el ol. v. Armx, 26 C. P. 403.
An action will lie in this country, on an order
made under '"The Companies Act, 18(!2," in
England, in the winding up of a coin])any,
making a call upon defendant in respect of his
shares, and directing payment thereof to one of
the two oIKcial lii[uidators appointed ; and such
action niiiy lie lironght in the name of the com-
pany. 1'he statute enacts that such order, sub-
ject to the provisions in the act contained for
a])]ieiding against it. shall be conclusive evidence
that the moneys thereby ordered to be pai<l are
due ; and that all otlier pertinent matters stated
in such order shall be taken to be truly stateil,
&;c. : — Held, that the prf)vision for appeal did
not prevent the onler from being final so long as
it remained unaltereil ; and that an allegation
that the order was still in force sufficiently neg-
atived an appeal. Held, also unnecessary to
allege in the ileclaration that the shares were
not jiaid up, or that defend.ant was a member
when the call was made. A plea alleging that
the order was not tinal, but C(mld be varied, re-
scinded, or set aside, was held good ; and a
reitlication thereto, th.at by the act there could
be no apjieal from the onler, except on notice
given within three weeks after it had been made,
and that no such notice was given, was also H"l(l
good. 1'he statute makes the liability a debt,
" in Kngland and Ireland of the nature of a
specirJity :" Held, that this did not make it a
speciality debt in this countrj- ; and that pleas
of never indebted, and that the debt did not
accrue within six years, were therefore good.
Held, a];-.(., that under (mr act 2,3 Vict. c. 24, the
order, notwithstandiiigthe enactment above men-
tioned, was not conclusive, but that defendant
might iilead to this action on the order any de-
fence wliicli he might have set up to the original
proceedings. I'leas, denying, 1, That defendant
was tiie liolder of shares or a member of the
company ; 2, Tli.it the company was unalile to
payitsdelit; .S, Tliat the court making tlu! order
was of opinion that the eomi)any should be wound
lip ; and ])leas setting njitlLit the defendant was
only a past member, and that the call was made
in respect of debts contracted after he ceased to be
a member — that the existing members wercabie
to satisfy the lonlrilmtioiis re(|uired — and tliat
no amount was unpaid on the shares- wore
therefore held good. Held, also, that the gen-
eral averment that all things happened, &c.,
necessary to render defendant liable to pay and
entitle the plaintiffs to maintain this action,
sufficiently alleged, if defendant could be con-
sidercil as being charged as a past member, that
the court was of opinion the present members
were unable to pay, and that the call was for a
. 1)11;
debt accrued before defendant ce.iscd
member ; but. Held, also, that thu ,U.,
charging him as a memlicr imist l.ui,
as charging him as a preswit imnil,w
plea showing him to bu a pa>t ijioii,l,i.r ,
a traverse of his being a niciijliuriu itlk-i
that there would l)e a variam i.> tlK'r'ofnn
plea were proved. /Ai/vir,/', y;,,,,/.;, , ,
lii'UmdiU, 3t) Q. B. 2oG. •>
2. (Hh,r Cn^ps,
A plea of a foreign judgment plea,],
darrein continuance, must sln.\v thut tii
arose since the last contiiuMniu, anil t'
judgment was on the merits lunl'nnn.li,!
tweeii the parties v.licre it w,-is j^ivcn • ,■,„
ble, such a judgment properly |,lea,lt.,'i'
a bar. Mcl'linlruK v. ^((.^7/, ;", ;j o, ;^
Where a foreign judgiii.iit awanls ,
debt an<l costs to be taxcl ;— Held t
costs were recovcra1)li! in :in aiticin nil tin
ment, on proving the amount at wliiih tin
aftei'wards taxed. Ilall v. Anuuur 5(1
An action will i e uinm a decree „
ment of a foreign , -t which is nut tin;,
I nature, but merely lo do soiin; act iust"
jiarty harmless and indciimilieil. ' (Jinjij
lloitth, (i (). .S. (102.
In an action on a foreign judi,'nicnt, n:
may be niadt; to the evi,leni-e lilcil of iw.ir
the judgment according to the emirsodftl
eigii court, on proof liy\-xaiiiinc,l I'Ljiies,!.
the grounds of the judgriiciit ; Imt win.
cause ill the foreign court was niiilcfeinli,
the plaintiir ailmitteil a setciV there, the,
(hint here is not bound by siK-hailniissidii.
Mcr V. 2'lioiii(i.-<, ]■]. T. ;j'\i(t.
In an action upon a foreign jnilgiiicntren
in an inferior court, it is not iiecei-.s,irv to
that the cause of action aini-e within the
diction of tliat court. I'n «//.■•.• v. Brimi-r
B. 270,
All judgments are foreign juilgmeiits i
are given by courts whose juiisiliVtiuu U
extend to the territories guviriicl liy our i
McFarlanr v. J)irlii.-iliiri; H i). B. I'J.
A declaration on a forei,-u jn,lgniciit. all(
the recovery of €20 1,3s 8,1 delit, and ffii
costs, amounting in all to t'.')S ITs stt'ilin
$'2iHi 41 lawful money of t';uiaila; th:itthe(
was a superior court of ivcuil, .iml th.i
judgment was in lull I'oree ami nniiai,!
suilicient, and not open to the iil)jeetii'iit.ila
I'lace V. Potts, S Kx. 704. K<lhi\: Mi'i\
10 C. P. 4<»0. j
A steamboat said to behni;,;' to nne M. il
country, ag.ainst whoiii ilefemlaiit Iwile'iti
an execution, was sohl at I'etri.it while the
was in the sherilf's lian.ls, nmlera jiiikine
condemnation and sale in the .idniiraltyi
there, for certain claims, which hy thtil
formed a lien U|inii her. In an iiiteiiiiculcr
between the plaiiitiif, (d.iiniiiii; inuler tkit
and defendant, the jury tunnd that the (
was not the property of .M., theexceutiiiinl
The court Hehl that th" evidence sii|ii«'rttil
verdict; and Hehl, also, that at .all even
plaintiffs' title under the sale made iijwi
judgment in rem must have iirevailnl
Every at at. v. Grant, 21 Q. li. .Mi
19
id before defenilint ceascil to '
ut, Hold, also, tliiit thu ilfdaral
im as ii moiiiliir must tieriinjtJ
; him as a iirusi.Mit numljur; thl
ig liini ti) liu a jiast ineinlitr culyl
if his huiiig a iiuMuliui-iw :illL-,ft,i.
rt'ouhl ho a variaiii i' tluTufinc if'i
m-ovod. HiiruKr.i iUuikmi r,,!
ti Q. B. 2o«. ' '
2. Othr Cii^i.',,
of a foroign juilgiiicnt jileaiW
iitiimaiiL'o, must sliuw tb;it tiic is-
l; tlic last c(intiiui;iiicL', luid thatl
was nil the merits iiiid (.•(lui'lusivj
parties where it was givfii; ainlS
1 jtidgmeiit iirnjierly iilculuil wmi
ci'lHiii-dii V. Lii^lni; ;{(), S. liW.
a foreign jwitgin.nt awards a ee<
eosts to he taxed:- Held, tliat (
i reeovcrahle in an .utidn mi tlit j,
proving the aiiimint at which tlieyi
s taxed. //"''' v. Aninjur, 50. '
(111 will I e 111 Kill a decree or i
L foreign . '-t wliicli is iicithnalii
ut merely lo do smuu act, a.stii3
rmless and iiideiiniilied. Gaii.llM
0. S. 00-2.
action on a foreign jiidgincut, w'eil
ladi; to the evidence tiled of rcconll
[iient aeeordiiig t" the cimi'iie of th«
■t, on proof hy cxaiiiiiieil cmiics, tn^
nds of the judgiiieiit ; Imt wlien
tlu! foreign eolirt was iiiidcfcmklj
till' ailniitted a set i.l' there, tin-
J is not hound hy siitli admission.
lioiiKi", K. 'I'. :i Vict.
ictioii ii\i<iii a foreign jiidgiiieiitronl
ferior court, it is net ncci'ssarytoj
eaiise of action arose witliiii tht
f that court. I'nnll'^wHfuff,
dirnients are foreign judgniciits
liy courts wliosi' jurisdiction 1
the territories governed hy oarl
,y V. DvrhUnir, fS I,), Ii. VI.
iration on a foreign jud;.'nicnt. all
^ery of f-'O i;?s 8d ih.lit, and CW]
onntiiig ill all to I'.'iS ;7h sUtIu
liwful I'noiiey of Canada ; tliat tlm
fperior court of recurd, and tlial
was ill full force ami iniiaid
and not open to the chjccti'mtil
l>„tts, 8 I'-x. 704. K'll:i\:il'lM
WO.
Inhoat said to hehm- to niu'M..i
la^ainst whom .Icfendant hail"litj
lion, wass(ddat Detreit whiletM
Ic siierilV's hands, under a jiW'jnl
l,ti(m an.l sale in the .adniiraltyj
certain claims, whieli hy tkfl
lien U|)oii her. In au intevlWeq
(the plaiiititr, clainniiL; und^
lulant, the jury t<"""l t''"'^ .""•',,
le property of M.,theexccutiuii.lj
.Held that th" evidence suitirto
land Held, also, that at alU'vei^
title under the sale niadiMiw
, in rem must have i>revaiW
/. V. Gr<i„l, '-'l Q. !!• S-*-
JUDGMENT.
1958
XVI. Nl'i. tiel Rkc'ord.
Iju „]ii,^ of nul tiel record to the judgment
liiiiica. sa., i" 'l*^''* "" '' recognizance of hail,
Jijiicnt varying in the term from that stated
Jeilaration, and a ca. sa. in a form of action
Kut from that stated in the replication,
iji;i]ti> a fatal variance. Burns v. Gricr et
sii.S. 50O.
I'.^t! Wire refused to the plaintiff in an action
l,jjil,rnieut. although defendant had pleaded
iilea of mil tiel record. McJJvidiIiI v.
U. 1 Q. B. -,-27.
Iflitri' a record jdeaded is of another court,
ViMitiie i.s to take ruit a rule appointing a
I til lirin" the record into this court. But
. it is of the same court, a mere notice
5K' siitiicient. Ilamillou v. iSlieurs ct ol., 5
larati<ui alleged that the defendant hy
miuzance heeanie hail for C. to the limits
Iti. I'ha, mil tiel record. On the recogni-
ferill, it appeared that C. had also joined
k jtftndaiits, which was objected to as a
cf;— Held, that the objection, if any,
I have liecu takgii by plea in abatement.
fjfkmy.Atlrn, Of. P. 143.
[ill this plea being pleaded, the issue is
fciitto, and the plaintiff need not reply ; but
kjilioiild do so an<l pray an inspection, and
blant should demur for informality, though
li8|fatiii]i he unnecessary, defendant might
.( juilgmcnt on demurrer. The demurrer
|(itaj held hail, the grounds taken being iii-
itnt. Gmitthmii v. Jurr'i.t, G (). B. 511.
Uv,, JoMH V. nmUui, 12 Q. B. 202.
Ikin action for assault and battery, de fen -
MiiM that he had been convicted of the
[asi comiilaiiied of before a justice of the
isml so released from this action. The
fctif replied "mil tiel record" of the convic-
-Hdd, replication good. Tlionijinoii v.
•,9(j.B. 360.
lleiemlant in assumpsit pleaded in abate-
BiiiTiner actiiui pending, and the plaintiff
1 tiel record. The declaration in the
lictiun contained only a count formriney had
iHrivtd; ill the second, a count on an ae-
■t stated was added : — Hchl, that the repli-
M:',s nut siijiported, and that defendant was
Itleilt'J judgment. Bain v. Bahi, lOQ. B. ,")72.
ieruinsci. fa. tli ■ judgment was set out fis
ktml in assumpsit against defendant, as
ptris, for the non-performance of promises
Vljy testator, and the record of judgment
ipriKliiced shewed that in the declaration
Wie was averred, hut that judgment was
If'i as uimn defendant's confession of a pro-
-Hdl, that on mil tiel record the plaintiff
ImitW to jiulgmeut. Caughell v. Tcul, 14
HOD hail bond. Plea, that the principal
•y to the action according to the eoudi-
Rt'lilicition, that he did not cause special
Itolximtinforhini in said action :— Held,
eof mil tiel record, which could not i)fc
I a jury. Dumlme v. Hamilton, 15 Q.
h action by a creditor of the Buffalo,
wtJ, aud Goderich R. W. Co. against a
sliareholder, defendant pleaded, among other
pleas, nul tiel record as to the judgment ob-
tained against the company, and issue was
joined thereon. It did not appear at the trial
that this i.ssue had been disposed of, and Held,
therefore, that the plaintilF not being shewn to
be a creditor of the company could not recover.
Tyre v. Wilkts, 18 Q. li. 4U.
XYII. AcTio.Ns ON Judgments.
The court refused plaintiff co.sts in an action
on a judgment, where it apiieared that after
execution he had proceeded under the Abscond-
ing Debtor's Act. AV<7.'/- v. /^co/f.vr, 1 (j. B. ;}48.
An action is not maint.iiiiable in this court on
a judgment obtained in the Division Court under
l.'i & 14 Vict. c. 53. 2l<:Ph<:r.-ion v. Forrester, 11
Q. B. 302.
Held, adirming the judginent of the County
Court, and following Nlel'iierson /'. Forrester, 11
Q. B. 3()2, that an action would not lie in a
County Court upon a Division Court judgment.
Donndlij et al. v. Steirurt, 25 (>>. B. 3'JS.
XVIII. Misc'Ei.i.ANEors Casks.
Lands arc bound only from the delivery of the
writ against them to the slierilt', and a judgment
is no lien upon them. DneiX. Aii/i/juv. lloUUler,
5 (.). S. 73!t.
Where a party purchases land u\)oii which a
a judgment had attached, he holds the land sub-
ject to a right of sale under a ti. fa. liy the judg-
ment creditor. Due d. Mel'hersun v. Jliiuter, 4
Q. B. 449.
A judgment is not a lien upon lands for the
purpose of an elegit, so as to avoid the elfeet of
a ti. fa. against laiuls issued on a subseiiuent
judgment, but placed in the sheriff's hands prior
to the elegit. Due d. Iliiidirson v. Burtrh, 2 O.
S. 514.
Held, that the tiling a plea without the service
of a copy is not a nullity, hut an irregularity ;
and a judgment signed in such a ease without
a prior application to the court was held irregular.
Watkins V. Fenton, 8 C. W 28!) ; MeKaij v. Mc-
Deannid, 2 C. L. Chanib. 1. — Draper.
"Every jiidgnicnt entered" in the tariff of fees,
9 Vict. c. 7, refers to a Hiial and not to an interlo-
cutory judgment. Melnlti.t/i v. I'ulluek, 2 C. L.
Chamb. 209.— Burns.
Where the assignee of a judgment against
the defendant accepted and retained a convey-
ance of a piece of land, for which €55 was the
stated ciuisideration, altiiough he represented
that he uUowed this sum for the laml, in eoiisid-
eratiou and as part of the general. settlement
between them, still, having elected to take the
benefit of the conveyance, he must allow the
consideration money in reduction of the execu-
tion. Morrison v. Kees, 1 1'. li. 25.— P. C. —
Draper.
A person is entitled to search at the crown
ofliee for judgments against any number of per-
sons named, and the clerk of the crown should
allow him to make such search, if a long one, at
whatever time is most convenient with respect
^^'ir*.
1959
JUDGMENT CREDITOR.
; !■■
n
to tliu otlicr business nf tlic office. Ho is not en-
titled to Ki'jirc'li the juilyments entered, during a
l)artienlar period, without reference to any named
parties, /ii re Ciiiiiulti Trai/r A-'sii., 17 (^.B. 542.
I'hvintiif an<l otliera took out attachments
•igainst an altseondin;,' dchtor, and tlie goods
seized lieing claimed, tlie ])hiintitV indemnilied
the l>aihli', who sold and jiaiil over the money to
defendant, tiie clerk of tlie Division Court. The
claimants sued the )ilaintitl' and the purchasers,
and reeovt.'reil from them tlu; value of the goods,
after which defendant distributed the money j
anion;,' the attacliin_i; <reditnrs, of whom he him- i
sejf was (ine, pin rata. I'laintilV thereu]ioa sued i
defendant and his sureties as for money received ;
to his use :- Held, revrrsiiij; the judgment of]
the ( 'onnty Court, th;it lie could not recover, for i
the money was not received by defendant in his |
officid eap:icity as the jilaintifr's, and the re- :
covery against the jihuntill', to which defendant j
was a str.'uigcr, eouM imt make it his as against i
defcml.int, so as to siiiJport this action upon the I
statutory covenant. <j)u:ere, per Hagarty, •!.. i
whether the jilaiiitill', having procured the money
to be paid to the defendant as that of the at-
taching ereilitors, could afterwards claim it as
hia own. Pn.tUjii v. U'i/mo/, L'."} Q. K :i48.
A transcript of a judgment in the F>ivision
Court for Sii'.i, having been filed in the County
Court : - Held, tliat it thereby became a judg-
ment of the Cuunty Cimrt, so that under C. S.
U. V. c. 24, s. 41, defendant could be examined
under it. Kdiuc v. JJroir/i, 13 C. 1'. 54!).
A\'here a Division Court judge, at the close of
the hearing of a cause, said he would take time
to consider, and deliver judgment at his cham-
bers on a subse(|Uent day, without naming an
hour, and liefore that (hiy sent a written judg-
ment to the clerk of the court, who read it in
liis oliiee to the agents of both parties on that
day:-- Held, a sutiicijiit delivery of a written
judgment, within secticm lOfi of the Division
Court Act. hi n- niii-ri,in.<, 18 C. 1'. 493.
AViiere an action is brought against the per-
sonal representative of a testator or intestate, the
estate, as an estate, is bound by the result of the
action brought, just as the deceased woidd have
been bound if in his lifetime it had been prose-
cuted against himself ; and the judgment stands
at law as conclusive against all the property of
the deceased, whether it be ultimately realized
out of the goods or lamls ; as against the heirs,
however, it is only i)rii;i.i I'.iciecvicicnce. Where,
therefore, in an action at law upon the cfivenaat
of the intestate against his administrator, judg-
ment had been entered in favour of the plaintiff,
who subsei|Uently ])roceeded in this court to
realize his juilgnieiit, the court held that it was
not necessary for him to give anj' evidence as to
the consideration upon which the judgment was
founded ; and the defendants, the heirs-at-law,
having refrained from calling witnesses to im-
peach the judgment, resting on their objection
that the plaintill' was bounil to give evidence of
the bona tides of the judgment, in consequence
of which a tlecree was pronounced against them,
the court on rehearing ordered a new hearing to
take place with a view to affording the defend-
ants an opportunity of disimting the validity of
the judgment, upon payment hy them of the
costs of the hearing auJ I'uhearing. Eccks v.
Lowry, 23 Cby. 107.
I
JUDGMENT CRKDITOn.
.SVc JriiCMFNT.
The declaration set out tluit the
being a judgment debtor „i tk- A^k
admitted on his e.x.-iiiiinatiou ln.fi.r^. .,
Court judge that he had in hi,- i,(,s<i;W.,,
promissory ni)tes, which the ju.l.-e, „„
fendants' application, ordcieil hiiu t. il,
the defendants, to be coil-cteil l.y tV
aiiplied upon Uie judgment : tli;it ;;funV
judge, on defendants' apiilicutiou, issue,'
nions to commit the iilaiutiil' for not h-n-
this, whereuiion, on the uhhmhI i.f t
defendants, in obedience lo the jiiii.'i's ,"
and to avoid committal, the iilaiiifill li
such notes to the clerk of the (.'muitv (
the use of the defeiulan'is, to lie bo ..•.'n^i
applied, and the s'-U-plus, if anv, t. he
the plaintiff. It was tln.n hIIc'C'I that ;■'
ujion became the defe'idaiits' ilutvlnii.,
able care and diligence in culicetiiiT tliv.
l)ut that they wholly neglected t.^lo s.., \'
several of the notes were harivd liv the
of Limitations, some of the iiaitiesitiMi;
vent, and the plaintiff lost tlie aiudiiiit \.
Held, on demurrer, that a gucid ean.se (.:
was shewn, for the delivery tii the elr
under the circumstances a ileliverv t" tli
dants themselves, and the iufeiviiee fi .
facts was that they undei took the ilutv i
Hagarty, J., diss., on the ynmihl tlKit'thfi
no delivery to the defeaiiaiits, ami
agreed to undertake the colleetii u it jlmr,!,
been e.vpressly so averred. Ilu'ly y,,.
25 (,). IS. 2{i3.
In suits by judgment crcilitnrs fur tlie
the dei)tor's property, the ili.'litui' is eiitit!e(
a moi'tgagor, to si.x months to ivikvin
sale. The rule prescribeil by 4.'i lien. i|
is not applicable to the ]ii-:ieticu vi tlii.
White V. Jicunlci/, 2 Chy. (iliO.
A judgment creditor is iiit a \>\'.T.h:,y
value within the meaning ipf -JT Lliz.,
O'nui/iriii V. Williinn.i, 5 Chy. j.'JO; (;'i"fl
VaiiE'jiiwndt, () Chy. 53.'!.
Where a nvirtgagee against wlmm uiilj
are registeioil exercises a powei' nl >ale !;;
:ui
ment creditors have sucli .an !iitere>t ii
exercise of the ]iower that the CHiiit n
them relief against the ninrtga};cr t.\^
io tlieir di.sa<lvantage. Cummircin-
W'aUoii, 5 L. J. 1G3.— Chy.
A judgment creditor coming' in tu red
mortgage incundiraneer is eiititleil, lii
ment ot the amount due to the iiiiirt;.M5'i
assignment not only of the iiKprtgajre'l
but of all collateral .secuiitius, whetha
be subject to the lien of the civilitur uni
judgment or not. (Uliimnr v. Oi
290.
H. obtained from his dehtnr an :i.*jI'.ii
his books of account, notes, hills, aii'l
dences of debt by way of se.airity x;
conseijueuce of his becoming a iiaityt
the accommodation of the ilulitur, m
conveyance of real estate fiuui the latlii
debtor for the same puriii ise. Ihiviiu' !■
pelled to pay a large sum of mmcy hyi
his being a party to such notes, H. n
iR.
JDOMENT CitEDITOR.
Set JrncMKNT.
iriition Slit (Uit that tlio \\x
Igment tk'Utur dl the il..;!ii,l/
I liis uXiiiiuiKitiiiu hefuri; ;i ('
; tbiitho h;ul in hisjxi^si;*::!, n ;
notes, wliii-h thu ju'l;:f, ...i tli^
Hdioatiiiii, nrckicil him t. lUlivi
lints, to l)u c(i!!ti;t(jil hy tlniul
in thu juilj^niLiit ; thiit atttrwan
lufcnihiuts' ai'pli'Jiitiiiu, is«kil a|
muit tho \)hiiiitiiV fur imt huvin
uupon, on tlii; Jiiiiuuil cf tlie
, iu (ilicilicni.u Iti tho juii;^i's'
)i(l c(ininiitt:il, thu }ihi.iiitill iUli|
to the clurk of thu (.'nuiity ('un
the (kfeiulau*;;, to bebu '.'..ikcta
ul the suqihis, if ;iiiy, t" Ir.- jh
ft'. It was thi.ii I'.'.lcgo'l that it I
iHo tho ilufc'i/tants' .hity t"ibt' i
mil tliligcucc in culU'iting Ukh' i
luy wholly ncgk-f.tf>l t" ihi si., wL
the notes were hanvilhy tin- Stt
ions, souiu of tlif }iurtii.s hn.';miel
the phiintilV lo;^t the auimiiit tbJ
ileniurrer, that a yoinl cauu'i.i i
■n, for thu (lulivuvy to the tklj
: uivcunistancus a iklivery tnthcf
nnselves, ami thu iiifuiviav in
that thuy unilurtonktli'.' iluty tb
J., diss., on thu gnnuiil that tlia
cry to the (lufuuiiaiits, wul it!
. unilurtaku thu uolluctiiu it sIimuIT
russly so avurrud. ]l"lt v, .l/.>vtl
2t)3.
Is by judgment ui\Mhtiirs furtliol
Lr's property, thu liulitci- iscnntlei
jfor, to six months in rolwmiiv'.o
rule prusuriliuil hy 4;itlt". 1IL|
ilieahle to the practice of lliii i
h-(i-slti/, '2 Chy. (itiO.
nient creditor is imt a inir.lisl
Hhin the meaning of 'JT Lliz.,!
]Viiriinii.<, .") Chy. 5;!9;0'i."'f
a ivortgague against wlimn JHil
x'lcil exereises a powerot sale
ilitors have suuh :ui interest lu t
of the power that tlie enun wil^
uf against the nioitgai;e\' extra
disadvantage. fMimaruil
5 L. J. IGS.-Chy.
-ment creditor .oniing in to i
^ incundirancer is ontitkil, iio
the amount due to tlie mnrt-;ye(
ntnot.mlyof the nll.rtgagellr
collateral sueuritios, wlietlur t
t to the lien of the ereilimr un
t or not. aihiKinrx. Oiwovw.j
Lined from his dehtor an lusiga
J of account, notes, hills, a"""^
If debt by way of se.;urity .igJf
Ince of his heuomnig a vam ti.
Lmodutiou vi the .le htiir Mij
ice of real estate from lie lat^
|r the same puriioso. HaMi',
Ipayakrgesumof nvmey .;i
I; a party to such notes, M.
JUDGMENT CREDITOR.
19G2
...jijiiinst the debtor, and sued out exe- 1
fcc'hireiin, whiuh was the tirst placed in the
itlie slieritl' ag.iinst the debtor, and the
itheilehtor were afterwards sold under
. [itlier executions Hub.su(|Uently placed in
Ibialjiif the shurill'; upon which sale sutli-
,<iv,ili/cil to s;iti«fy tlie execution of H.
ivivc ahalaiue in. the hands of the sheriff',
|[!'ii'hini was accordingly jiaid, and the
■ .uTdUiit and other securities held by
ildivereil up to the del)tor after notice
L'jla'iir jinlgniunt creditor not to part with
,• ;ii;i! tiie father's land was re-con veyeil
Tiu' execution creditor who gave the
daimeil in coiiseciuence prioi-ity over
liite execution creditors, and also a right
d H. to make good the annmiit of his
iJjioiiisei|iienct^ of having parted with the
■s:— Held, that a subsecpient excmition
jlur li.iil not any uipiity to coniiiel tho tirst
feirtii recover payniunt of his claim out of
LfHrty held by hini in security, so as to
.">tc :'(i(«ls of the debtor to satisfy the sub-
jjt executions, nor had he any right to call
IH. til assign thu lands conveyed to him liy
iJtlt'T's father : that H. was not rendered
ilile ill the first instance to the sub-
jjttsaiition creditors, but that he had no
ItMlJiver up the securities held by him to
IWtur, on heing paul the amount of his
,aiiil was theiefore liable for any loss
Tcecasioned. Ju-itjjhv. lleufim, 5 Chy. (iSU.
Jlfcoiiuiitrya judgment creditor is entitled,
..iitiiin, to a decree either to sell or fore-
ktie estate on his debtor. JfcMttMi.r v.
t,OCliy. 5S1.
|]t.i;'ment creditor offers to redeem a prior
Mt creditor whose ven. ex. was iu the
i'i hiiiils, and made an assignment of the
Mt; Imt the prior judgment creditor (who
Iiisitlif lioMer of a mortgage subseijuent to
uEil juilj,'inent creditor, ) refused to receive
►ley ntlierwise than in satisfaction of the
Kit. ami refnsed to assign, whereupon the
JjtJ.meiit creditor filed his bill to redeem
It! an iiijimction to restrain the sale. On
piinfiir the injuncthm, it was Held, that
Ktntitlnl to ruiluum and to an assignment
»;&li'iiient, anil an injunction was accord-
liTjatdl. Binil: t'l' lirilii/i ^^'vrfh America
, I) L. J. ij.'). '-Chy.
jii tiiat a prior judgment creditor is bound
Ettibe reiluuiiiud by a subseciuent judg-
jiTtilitor, anil to assign the judgment. Tin'
\iMlk Surth Aiiurka v. Muuir, 8 Chy.
I a jitrty made defendant as incuni-
Bpntiu an answer, setting up that he had
dthe judgment in respect of which he
ttle a jiarty, notwithstanding which he
fell a.s a jiarty to the hearing, when it
«i!i>tiiiotly aiipuar that any eflfectiial assign-
|bilevtr lieeii made, the court refused him
!, t'tli;rwise than as an incumbrancer. //>.
pwrt will not decree a foreclosure iu the
loee, where the lands of the judgment
kw iiiit siieeitieally set out, and the value
V stiteil in the bill. GV(i.s.s v. Fncki'l-
iQiy. itl.
'Mts r -incred against two out of three
|R of a lirrn for a partnership debt, are
available only against what may appo:;r upon
winding up the partiieTship to lieiuii;; to the two
iidgnicnt ilebtors. Slmili
134.- -CI
II ni V
Miir,L:,i, ,S L. J.
>y-
A second mortgagee, a.s such, comiot iiiipeaeli
a jirior registered mortgage as fraiiibihiit and
Void against creditors, but a jndoniciit creditor,
having accepted a miirt;,'age, docs not lose his
rights as a judgnie/it creditor. Wiirnii v. Taii-
tur, 8 L. J. '.^a— Chy.
^yhen a judgment creditor files a bill to cnfiu'co
his juilgniunt against lands, it must be shewn that
he has sued out cxeeut'nn. Jliiidu/ i'lijiir Can-
ndd V. Jkat/i/, y Chy. 321.
When a judgment has bucii recovered peiideiito
lite it is not necessary to make the juili'ment
creditor a party. Wiillhr'ahji- v. MkiHii, '2 (.'hy.
Chand). 275. — .Spragge.
Where a conveyance absolute in form wasexc-
suted
as a sccuri
ty Old
y, upon a verb.il under
taking of the grantee to leconvuy upon iiaynunt
of his demand: -Held, that a judgment creditor
of such grantee could not enforce his judgment
beyond the amount of principal and intciest due
the grantee. (f7((.«.< v. Frcrklituii, 10 Chy. 470.
A. obtained a judgment against ?>. and regis-
tered same, and issued ti. fas. ag linst lands, kt-pt
them in f(U'ce, and filed a bill mi the judgiuent be-
fore the act abolishing registration of jmlgments.
C. had obtained judgment against I*>. and regis-
tered it, butsubseipientto A. C. tiled his liillto
set aside a prior sale made by I?, to ]). not making
A a party. A decree was pronounced in his
favour, sustaining the sale, but giving him a lieix
on the purch;ise money. A. aiiidied by petition
to be made a party anil have his priority declared
in such suit: - Held, that he could not byjietitioii
make himself a jiarty to that suit, and that his
remedy if at all, was by bill. l^»ua'rc, had he any
remedy at all. t'ifij Jinidv. MrCoiib i/, 'A L. .f, X.
S. 12;-)— Chy.
A judgment creditor had attached a debt duo
to the defendant, as a security for which land
had been conveyed to the defendant, and a suit-
for redemjition was pending. The bill in that suit
was afterwards dismissed for default in paying
the money, in pursuance of the report therein : —
Held, that, the jimiicrty having thereby in effect
become substituted for the dclit, the creditor was
entitled to a sale thereof in this court. Jiiiii/: uf
E/ijiii V. IliilvhbistDi, 13 Chj-. 5;).
A indgmcnt debtor having died intestate, the
creditiu' administered to his-estate, and there-
upon, without suing out execution against lands,
filed a bill against tlie real representatives of the
intestate for relief under 13 Kli/. : — Held, that
the peculiarity of his position as both creditor
and personal representative, did not entitle hiiii
to relief in this court, without first suing out
execution on his judgment. Hut the pleadings
being suHicient to warrant it, the dei'ree for
administration was made on terms as to costs.
Dujj'ii v. O'nUiam, 15 Chy. 547.
The plaintiff and .another benight fnun a testa-
tor's executors and trustees certain re:il and per-
sonal estate ; the real est;ite was subjiit to a
mortgage wdiich the vendors agreed to pay ; tho
purchasers paid the pureluue money, but tho
vendors applied the same to pay other debts of
the testator, and left the mortgage iu part un-
1963
paid ; tliu pliiintiCf liavini,' lionght out his co-pur-
chaser (iliid a liill against tlio executors ; adecrce
by consent was niadu, giving the plaiutifT a lieu
on the testator's assets, ordering defendants to
pay personally what tlie plaintiff should fail to
realize from the assets, and directing the accounts
and en(iuirie8 usual in an a<lnunistration suit ;
the estate was insutlicicnt to pay all creditors :
before the making of the decree a creditor of the
estate had obtained judgment against the execu-
tors, and the sheritl' seized and sold goods of the
testator in tlieirliands :— Held, that the jdaintiff
had no right to prevent the creditor from rcceiv-
iug the money, llnnnj v. Shafi>, 18 Cliy. Iti.
JURY.
I. Co>rMON- .fi-Rv,
1. Sekctiinj mill J>riijr„iii,
A nmnieipal council, in I8."0,
JURAT.
See Affidavit.
JURISDICTION.
I. Ok Coi'KTs — SVc Tmcii! Skveral Titles.
II. Of Fokeiun Coairr.s — .S'w Judgment.
III. Of JtDciE IN' CiiAMiiERS — .S'f'^ Practicf, at
Law— PuAtTU'E i.\ Etjuiry.
IV. Of Master — iVc Practice in Equity.
V. PltUlIIBITION — S<-(' ruoilIBITION.
JURY.
I. Common Jurv.
1. Sdictinij and Dmfllixj, 19G4.
2, Summoning.
(a) 7« Clnl Ciixf.^, I9G4.
(b) //( Criminal Casen — See Criminal
Law.
II. Special Jury.
1. Ajqilkatlon fur, 1965.
2. Sirikliiij, 19()5.
3. CusU, 19CG.
III. Decisions under Law Reform Act, 18(58,
AND Administration of Justice
Act, 187.3, 19(j{i.
IV. Jurors' Exvenses as between County
and City, 1967.
V. Fining Jurors, 1967.
VI. Miscellaneous Cases, 1968.
VII. Assessment of Damages by — See.
Damages.
VIII. Challenging — Sec Criminal Law.
IX. Wrongly Imi annelled, when Ground
for New Tkial— i'te New Trial.
X. Misconduct of, when ground for New
Trial— &'(' New Trial.
XI. Sheriff's Fees
8UEK1FF.
FOR Summoning — See
piliUT f,„. t|„t
I, (the .Jury .Ut
<l'"<l'>l"l'nlh l,;ijj
statute tor prcparnig tin- jurv 1 k< f
following year. Priiiijl, v. .\'l,-ij,
B. 254.
clerk of the peace a tixi
"in lieu of all fees:" -11,1,
14 Vict. c. 55, having lutn .
that he couhl still claim tin
^"IKllI, li
one
tion
sher
Itwasheldthat ad.,,,,ty,c.,.ve,,,,i,,i,t,
.c of the selectors ot |iin,rs iiii,|ui-th, 4'it
eritr. ncjina v. /'. J /,., 5 i j ,,, 'M
Campbell. ' " "^
Drafting the i.anel fro,,, the j,„.v ]i,t „
C. S. U. C c. ,8, ,s not ;:>i„...i.l,,.ssi„„„(
peace, and the clerk tini, i,„v is „„(; |.||.|,,
chai-ge for it under N,.. (ii; i,f tl,,.. t niir /
PoUMtt Clark V. 7'//c ConrI >.f (vii.r.ii'nL
Si:SHlonA for t/ieCwiii/ij I.itinht,,',!, tl (,l. li'41
Semble, that under the Jury Act th,- Mm
pal Act, and tlie act Kepil,■ati]l^'th.•'utv ir„n
counties, the duty of selecting' ionl ,l,Mitiiw ii
for the city, now bel,)ii-s to the d,rk'„f
Recorder's Coui-t, an,) ,i,,t tn thu ,|,il;„[
peace for tiie counties. hi ,; M,-\i,i, }■[„
(he Peace for Yor/,- mnl I',, I, „i„) />,',/„
of the Council, of the Citij of Toronto, i'2 11 i
Hehl, that since the act sei);uatiii" thr i
Toronto from York and \\:v\, •J4 \iut. , ,•
sheritl' of the county of tlie citv df 'ruiMi';
the high bailitl', is entitK>,l to lie stkrt'iiM
to ballot for, and suniiii,,,, the jiu-urs |n.>
held in the city. MoitIs,,,,. .1., ,l,,„i,;,|'.
the first point. //; re tin Shirif nf //, '
Toronto anil the Recorder of ihi'Ciin u\ 'i'iX
26 Q. R. 346. '' ' 1
2. Sumwoiiiihj.
(a) In Ciril I ',(.<, .V.
The court refused to set aside iivei-ihVt.ijl
a sheritl', upim the ground that tlie ciuinr'^
who tried the cause was the sai,ie as tli
turned by the sheriff. Ptniii' \. )/,/,,
325.
It is no objection on tlie part of a sherilTl
action against him that the jury have lim|
moued by himself, an, I imt hy the
Ainnlie v. Pa/ielje, 3 (j. B. 27,").
In ordinary cases the plaiiitilTiieeil imtj
writs of venire facias and haliere emiMril
torura. Boullon v. Pitzif rtdil, 1 Q. B. 476
The coroner, under a speeial writ nf '
is not retplired to return a panel ,if tliiij
jurors: the 36 Geo. HI. e. 2, uiui thu
jury law, being appliealilu (inly to tin
ami not to the coroner. Fnin r v. iHr
Q. B. 231.
Held, that the fact of a jnry heiiig iiiial
agree, and so discharged, in an nverhuliliii
ancy case, does not deti-rniine the autluii
the commissioner to suiuiiion a .^eeimd jun
re Bahcock et al., 9 L J. lt)5.— C. L ilia
Wilson.
The fact of the jury having hecn (lisc||
by consent of parties, does nut prevent tli|
I being still proceeded upon. lb.
I. CoMMliN .IriiY.
Sekctliiij mill Ih'dfliii'j.
il council, iu 18,")0, iHsi),n)i,.,l i
)uaoc <a lixiil >;iliu'v for that
I feus :"- llrlil, (tlk-.lury A.tl
haviny liomi .sulisfmn.uily ymi
still flaiiii tlic iVfi idlnwivi l,,
preparing tliu jury lii.i.k< i,,r|
tr. Priii'jL- V. .]j'-/)imtl<l, ij
I that a (lopiity rtovu, mi^'l t
lectors of jurors mi4tM'tlif 4'.itlil
Vict. c. loo. Imt iKit th. .Iff
ina V. /'. J I.., ') L ,]. i;i.
Iio panel from tlic jury li>t
.'. IS, is not ii >iiwi;il sissi.ii, ,if|
lie clerk tlicnfipn; is imt cn-nlef
it unilcr No. lit) of till' tiirill,
rk V. Tliv Ciiini i/'/mimw/ n.,a
Ihi^VoHiilij LiimhUi'ii, tl (I \\. i\
lat under the Jury Aft, the Mit
I the act sepanitiiytlii.' city irm
i duty of sek'ctin;^ uuil .Inuting jJ
i(, now lielongs to thi; clirk ol
Court, and not to tlio ili r!; o|
le counties. /// n M'-Snh, r'(
far Yoi'k' mill I'll I, mill linli,
'II oj'thi- C'ltij iif Turmit I, 'I'l t\. 1!.|
ivt since the act sepurating tlit c(
mi York and I'eel, •J4 Vict.
he county of tlie city i>f Tnrni.tol
liliti', is elltitlrd tulic Sclcitur.
:ir, and summon tiic jurnrs fun
e city. Morrison, .1., ilduljtiiis;
lint. Ill >■!• till Slnrijf iij III.
il the Ihi-Mnh'.r nj ihi- Ciluo/To^
2. Sttiiiiiiiiiiiii'j.
(a) In Ciril '',r.si,<.
•t refused to set iisidc a vcnlict ,i
poll the ground tliattliociiruuii'j
the cause was the saiiic :is til
the sheriff. I'iiijik \. Mi'L'^m,]
ibjectioii on the part of a slieriffl
list him that the jury liavc luinj
himself, and uut Ijy tlic cuj
Rai>,lji; 3 (.j. K -^T.").
iry cases the plaintiff iiciul ii"tl
jnire facias and liahcrc corii..riJ
unltoii V. FUzijii-a'il, 1 Q. B. i'''
jner, under a sjiecial writ »i
lired to return a panel nl tliiH
„ 3G Geo. 111. e. •-', ami the
being applicable mdy to thu
the coroner. Fraeir v. Dd
lat the fact of a jury lioing iid
Iso discharged, in auovcrhol4in(
Idoes not detcrnnne thuamhoi
tsioner to sunuuoii a secoml jun
\et al.,\i L. J. ISo.-C.LlM
of the jury having l)oen aiscj
I of parties, does nut prcvait tHj
proceeded upon. lb.
JURY.
19G6
I ju j,,plieation in hmacy, the court ordered
liheriff t" eliipannel a jury for the then next
Ljiif the ciuirt. The matter w.is not pro-
nth until the sittings succeeding the
riiiilthcinatter then coming on: - Held, that
luiid WcW niit [iroperly constituted ; that the
Lfiaiithcirity to HUinmon a jury was coii-
Tto tliii "•'■■'t sittings after the ilate of the
TI. Srr.ciAi. Jury.
1. Aptilkitlion fnr.
Itaaiwlicition for a certificate for a special
I must he made iininediately after the trial.
p'.jv. iV'i'''''''"> '''"y- '"7-
|(i,(|.i,ii(lefend;uit apidies for a special jury,
\m<\ ilo SO in time to permit of the jurors
■ ^ jjmiiioiicd, otherwise the common jury
Pint lio held to be superseded. ChiiidiiMu v.
',„,sy. li.-'Sl.
2. Sink'imj.
I ,,^^.j;il jury cannot be struck after the com-
Biiiiavnf tlie assi/es ; but it is no objection
Ijiii.i jury that the slieritl' has not suinnioned
l,',i junirs, if a sullicient number attend to
ltd rase. (lUuere, should not a venire and
^ issue in such a case. Murci ii v. Mai/-
bf U.S. 323.
[i -Mitoial jury be struck previous to an
i,aail the cau.se is irregularly tried at that
• kviu'dmniciu jury, and the vei'<lict after-
tstt aside, it is irregular to try the cause a
Itime by a eonunon jury, no new special
liteiij; struck. MrMnrHii v. I'uinll, T. T.
Itvil
...e must be four clenr days' notice of strik-
liijiecial jury ; therelore a notice given after
liB.diiSaturdav, for 11 a.m. on Tuesday, is
lutiicieut. Ji,:'lly.FHnlufl,^ii.B. 122.
'. < U. C. c. .31, s. Ill, rcfiuires four full
(KGeo. III. c. 13, s. 5, gave no authority
mxirmier to summon a special jury. Clan-
-.M-si///, 8Q. 15. 281.
i\Mi\\c Insolvent Act of ISfiO, provided
I ill iillonces punishable under that act
tried by a special jury. Sec. 141 of
|iftoi 1875, directed that all ofTeiices puii-
bmler that act should be tried as other
s of the same degree ; and by sec. 149, as
tiinattors of procedure merely, the provi-
Jiijltliat act should supersede theaetof ISO!).
nis case, liefore the trial, the crown gave
(ofand struck a special jury, who were in
inceat tlic trial, but the erown, iiotwith-
ij, dected to call and try the case by a
1 jury. The prisoner's counsel objected
to, ami the case i)roeeeded, the prisoners
giatoa full defence, but subject to such
«, which was renewed at the close of the
liiththe further objection that there had
I I mistrial :— Held, that the case should
lleen tried by a special jury, for the offence
t punishable under the act of 1875, and
let was not one of procedure within sec.
Ithitthere had therefore been a mistrial
which the prisoners under the circumstances hatl
not waiveil their right to insist upon ; and that
this was a " nuestion of law whieli arose on tho
trial," which might properly be reservecl, and
not an objection to be raised liy ch.illenge to the
jury, lliijina v. Kirr et al., 2() V. 1'. 214.
3. CoMs.
The costs of a special jury — Held costs iu the
cause, not costs of the day. Whitihiinlw llnnva,
2 O. S. 343.
The clerk of tho peace is not entitled to any
fee from the jiarties to a (;ause for strikiii'^ a
special jury. J/uub-r v. (tui-iiilt, Ki Q. IJ. 180.
III. Dkcisions undeu Law Ukkoum Act, 1S()8,
AND Admin i.sTKATioN of Juhtick Act, 1873.
A defendant can, under the Law Itefonn Act,
18()8, see. 18, give a notice for a jury with :i plea-
ding which joins issue on a replication, t.ikiiig
issue on the defendant's plea, ijinhir l!iiiik\.
drill/, 'i P. K. 31.— C. L. Chamb.— Ilagarty.
Where joinder of issue had been filed before
the act caiiie into force, the plaintilt' was allowed
to withdraw it, and tile another with a notice
iei|uiriiig a jury. Si/inji- v. Alilircl/, '> V. U. 94.
C. L. Cliamij. — (Iwyiiiie.
The Law Reform Act of 18t)3, sec. 18, sub-&.
3, enacts that it shall be competent for the par-
ties at a trial to consent that the notice for a
jury shall be waived, and the case tried by the
judge, " and to endorse a memoraiiiluni of such
consent on the rec(n'<' ; and thereupon" the judge
shall try, &c. The plaintilF had given notice for
a jury, but at the trial the counsel on both sides
waived it, and requested the judge to try tho
case, which he did, and found for the ]ilaintiff;
but no nienioranduni was endorsed. On objec-
tion by the iilaintiff to the judge's authority to
try ; —Held, that the record might be amended
by the judge's notes, which stated the waiver
and consent, and the endorsement of the inemo-
raiidum made nunc pro tunc. Wycutt v. L'ainp-
hdl, 31 Q. B. 584.
Held, that the action of ejectment is within
section 18th of the Law Reform Act. .and
Seinble, such action must be tried, without the
intervention of a jury, subject only to the judge's
discretion anil directi(m. lliiinjihrriin v. UiiiUer,
20 C. r. i56.
An order was made to send a case for trial by
a judge without a jury, under the Administra-
tion of Justice Act, 1873, 3()\'ict. c. 8, s. IS, iiiiui
action against a railway company for negligence
in killing horses by a train at a road crossing,
where, on the first trial the juiy had disagreed ;
and on a second trial had found a verdict lor the
plaintiff, which had been set aside as contrary to
law and evidence. Mcd'uuiiii/iil y. (Iritml Trunk
Ii. W. Co., C P. R. 209.— C. L. Chamb. -Dal-
ton, C. C. .0 P.
Seiuble, that the notice for jury which, by 35
Vict. c. 19, s. 1, must be annexed to the issue
books in ejectment, may now be served at any
time when the issue book could have been served
under the old practice. IlarrU v. Pick, 12 L.
J. 279.— C. L. Chamb.— Daltou, C. U. <L P.
19C7
JUS TEKTII.
'W.
m
li
t I
Jl^:
TfiM, I. 'I'liat a plii niMiMl after issiiu jdiiiuil
rcfiMH liatk til till' ilatf of tliu original pleas, and
slioulil not 111; ilatcil as of tlio day when it is
fik'il. '2. That siu'li plea is a "last iiloading"
•within the meaning of the Law IJeforni Aet,
8. liS, suli-s. 1, and n)ay have a jury notice
filed with it. Cliutuii V. /Hrtvw, V2 L. .1. 310.
— C. L. Chanil..--l)altoii, C. C. .lA
IV. Jl-IiOIis' ExrF.NSKS AS IlETWKEN CofNTY AXI)
t'rrv.
Mode of eonijmting the proportion of jury
cxpen:HM payalile liy a city and county respec-
tively, under the 18 \'ict. e. 1. SO, and the Jurors'
Act, ('. S, U. ('. c. .')1 Duty of the county to
ascertain and deniand their proportion yearly-
Mode of ascertaining the assessed value of the
city property in order to arrive at their propor-
tion ' Mode of enforcing paj'nient — Itight of the
county to recover fur years in which the sums
■were luit duly .'.siertained and demanded- Sec
( '(ir/iord/lnii iif ilii< 'iiinifi/ of M'n/dlcMjv. ( '(irjxirit-
i'lun uj'thc Cili/dj' l.niiiloti, i'Ki. B. I'Jt! ; ('orjiiini-
lion ii/' /■'ru)il( iKir y. Cor/xinitloti of Kiiiij!<tuii, '20
O. P.' 4i> ; 30 (.>. 15. r.84 ; 32 (,>. B. 348.
The 18 Vict. c. 130, enacted that any county
of which a city formed part for judicial purjioses,
should lie entitled to demand and receive from
the city a portion of the expenses incurred by
the county for the payment of jurors in any year,
to be determined in the manner provided, and
that such portion should be payable to the county
innnediately after tlie close of each year; — Held,
on demurrer to the declaration, that an action
would lie by the county against the city for its
portion of such expenses ; and, this being so,
that the jilaintifTs were entitled to recover a
judgment, although as to some of the years the
defeniiants might be unable to enforce payment,
because a retrospective rate would be re(|uireil,
■which might be a conclusive objection to an ap-
plication for a mandamus to levy. The Corjior-
at'niH of //i< Count 11 of Fro)itcHUi' v. Tin' Corpur-
ittioii of tin- <'i/i/ ofKinijston, 30 Q. B. 584; S.
V. 20 0. P. 49. '
Plaintiffs sued defendants under 18 Vict. c.
130, and C. S. U. C. c. 31, ss. 155, 157, for the
proportion of jury expenses payable by defen-
iiants, from 1855 to IStJ'J, inclusive. As to 185'.),
an account of the sum due was made up by the
plaintiffs. There was no proof that it had been
demanded, but defendants had levied the sum
claimed for that year in 18(j0 : — Held, recover-
able. »V. C, 32 Q. B. 348.
As to 1807 and ISfiS, defendants in 18(!S levied
the Sinn due for 1S()7, but applied it to other
purposes, la 18(ii) they levied the sums due
for 18()7 and 18()8, and paid it in September,
18(i!t, br.t witluiut interest, which the plaintiffs
demanded ; — Held, that such interest was re-
coverable. Id.
V. Fining Juror.'?.
By a liberal construction of the Estreat Act,
7 A\'ill. IV. c, 10, the court will in certain cases
relieve jurors from fines imposed on them at nisi
prius, after the line has been levied by the
sheriff. In re Cole et uL, 6 0. S. 425.
VI. MlSlKM.A.NF.ors Ca,se,s.
9
A person wh,., Invu..- attcml,.,! ■,,
juriir at a court whnh ailinui-milt,,,'. f ' «
went into another ilistrirt on uriv "
was held not to bo )irivilcKt,l ij,
during such adjournment. \\/;tfu':!"''\r
Defendant was convii'tcl uiuUr S v; .
" for that he, 11., ,.|-t|a. villa" ,p,.V'^*-'
did on .Sunday the 2(;tl ' " ""•
the towi.sliip of ^Vatul,„;;'w!!^l• ?'■'''' '"^
eallmg, inasniiuh as he ami I,
j and liaul in hay on the saiil
I to the (,hiartcr Session.-, wh.
I tried before; a jury, ami thr
The proceedings haviiii
In.s i.n
lis llll.'ll ilill
■'■ tiK' I|1U^•
"I'vidiiiii .iiiirj
'"■en nirinvi,] |,v
orari to this court iJhM, |. Tlmt il„. il
13 it 14 "S let. c. 4.-., extcmlul t„ tln^ . ,so
authorized the trial by jm-y, tl>„u^l,',„ '
\ let. e. 4i), there is a [iMvisi.u fur :„„„,,] t
sessions, but not for suih trial // ;
•S/iair, l(i Q. ]',. 104. ' ''"^*
Under the Tavern ami Sli(ip bieon'sc \i;t
32 ^'Ict. e. .32, s. 23 it is irrc^'ular for tho'
who tries an apiical from a oimvictimi mulol
act to call a jury or receive ileiiositiuiMifl
nessesas evidence, but tins is imt "i-ni,),,!
prohibition. /« ;•- /Iron-n ,/ ,,1., 8 L .J N
— C. L. Chamb.— (ialt, ll;ig;iity.
Where uiion a comniissimi issiitil a.'i.ia
overholding tenant, the first jury suiim
could not agrei', and were ili.srliargnl ;
that the authority of tluj coiiuiiissiomr v,-ai
determined, but that amitlier jury ni-^litl'x
moned and an elfectual imniisitin'n li,.!,].
Wouflburi/ and Jliii:-:li(tll, PJ y. B. jij;/
JUS TEirni.
Right of Dkkendan r in K.if.i tmknt ■
UP OUTSTANDINIi MoliTilAOKS 01: TlH
STRANCiEH.S -.S'lT EjkCTMK.NT.
A person receiving money fniin .lu a-.
promise to return it to him ramint, in mi
by the agent to recover it liael:, sut up ,181
fence that the money really lielmigt'il tua
party. Lisfi-rv. Jianihimi] I Q. if. 41!l.
Semble, that the wife of an attaintnl I
cannot defeat the recovery in ejoctiiuiit j
purchaser at sherilf's .sale, in an aotimu
the traitor on a bond cntored into lieffll
attainder, by setting up tile title liyfiirfeil
the crown, which the crown liaii foiv
assert. Dou d. Gilti-.spii- v. Wixon, 5 Q. ]
A., a private banker, exchanged cheiiuJ
B. for mutual accoinimiilatimi. A. m
cheipies. A cheque of A.'.s liail lieeii d'slioa
and the holder called at A.'s ntlicu uii thj
day, and a clerk in the onliiiary coiiislM
ness gave the holder B. 's (.'lieijue
dishonoured clie(|Ue. Next day A. stnp[:
meiit : — Held, that the Imlder (.'niilil
against B. on his cliei|iu' :-Held, .il9l
under a plea of not the lioMer, R coulil
up any supposed right in A.'s assigim
possibly under any pleading uu tliuscfacl
Bank v. >'imith, 20 C. P, 93.
JUSTICE OF TUK FHACK.
107O
-IlSCKI.I.ANF.iirs CASt>,
lo, luiviiij; iittcmlfd us ^
wliicli iiilinunuil fur a f,.^^•,
:lui' ilistvht I'll i>riv:itc liiisij
1 111! ]iiivilim(l t'rciiii iirrcst '
jii\iniiuL'iit. Mitlt,l„i'ijii-\. C'l
;is ciilivirto'l liiulfi- 8 Vkt.
\ ., (it till' villllL'r III' Vn'fl(,|i,
the 'Jiltli iliiy ui' .liily Utiiai
if Wiiti.'iliiu, wmk at liismili
u-li us hr :iiicl liis iiii-u iliil 1
,y on the siiiil ihi\." lie iipj
• Sussidiis, wlirru tliL' (Hits'.iii
jury, ami tlic riiiiviclinii ivltir
ms liaviuj; lnun riiiinviil liy (.
c-uuvt ;— Ill-Ill, I. That lliu it
c. 4.'>, uxtrmUil til tliis uaseJ
10 trial l>y jiiiy, tilling'
;iero is a iinivisiiu I'm' n\i\vA\
not fur iiUeli trial. y/'.-ji<
H. 104.
T'ivvi'rn ami Shop I.iwiisf Aijt, I
1, ». 'j;?, it is inr^'iilar for tlu'
a\i\ioal friiiii a uiniviutiiiii mA^
iiirv or rei'uivi^ ilHinsitiuiiMin
iik'iifi-', liut tins is imt yrmniilj
/,! ,v «/•.,!-•». /<(/., 8 L. I.N.
ml).— (lalt, Hagavty.
lion a cfinunissidii issued ag:iia
tenant, tliu first jury suimi
ijrriM', and vcru ilisrliargid ;
tluu-ity (if tin- (■iiiiniiissiumTWt
, Imt that lumtlier juryiii\4'.itl)«
an (.■tVectual iinjuisitinu licM
and Mor-^linll, lUV. li. .W.
iVf^ THKT'll.
h- 1)KKEND\NT IN KlFCrMFNT '
IrsTANDTNtl MiiRTfiMiKS ul; TiT
J rocinvint; nmiify from ;iu a^cn
IrL-tuni it' to liiiiw-aiiiiiit, in aui
It to reoovur it liack, sut uii Ml
the money rually I'climguil t.ial
Lev. liu'nihiini, I Q. B. -H'J-
Ihat tlu! wife of an attaiiiteiH
l.t the veeovory in ejoamfutj
It slieriir's sale, in an actii.nl^
loll a liond eiitere.l mtn W\i
Lsettinmir tlu: title liyti.i'tevi
Iwliieh the criAvn had Unvl)?'
id. aill<xpi> V. II (>.'",•' ^'•
late banker, exelianged c\k'i4
Itual aeeonniiodatiiiii. A. m
,ehe.iueofA.'shadheeiul'*M
Ider called at A. s ollicc ou tM
Iclerk in the onliiuiry courser
Ithe holder IVs ^he-iue -o
llche.,ue. Next day A. St 'P
lid, that the l^"l'l"^'';'''y
(,n Lis eheiiue :- Held, W
laof notthehiddcr, H.0IU.W1
loosed right in A.'s as.gaj
fderanyideadi..goutlK.efacl!
Vilh, '20 C. 1'. 93.
ilniiitilT niortj,'age(l his j,'(io(ls to A. to ' the warehonsi> of S., who.so rceei|its lie held for
,„ ilcfeiidant was adnilnistratrlx. The the name, and wliiih he endorsed to plaintill's,
uueiiit" the [lossessioii of tile defendant, wlio [laid him for tlie i|UMiitity sold to liiin. 'I'lie
,r wliat eircnnistaiiecs did not ajun
wiieat reniaincd in tl
e warelioiisi
lor
time
, jirijreenlitaiiied an ai^'iveliient tiiat on lie— T. and .S. left the eountry, wlieli defendants
' tgagee mi.'^dit talie jioM.-n^ssion, and a seized and (■onverted tlie whole iiuantity to tlieir
ii!i.'iiiiii'
meiit
tliiitadelivcry 111 imssossion was ;j;ivun own use, and jilaintil!' sued tliem in trover ami
( tmii' "
t e
xecntiiii^ tiie mortgage.
'I'll'
lieti
Tir
le evnlelice o
f ■)'.
far fii
sill
iileiice tli.it the mortg.ige money liad ing tli.it he reimdiated tlie sale, fully milield it,
il Tlie Jilaintitl' afterwards exeinted and jiroved that lie iiad told .'^. to apiimiiriato
crmiii'tgages of the same goods to otlier all the wheat in one of the liins to jilaintill', anil
iiitMiniiii
ihi
agreement ' S. stated tliat he
Id not, .after the notieu of
It. .iiid a similar statement as to do- . tiie sale to iiliiiitill', have delivereii any of the.
iiissession ; Ifi'ld, that under these wheat in the two Ijins to any one liut idaintitl's,
c(i,s the jdaintill' eoiild not recover without ret.iiiiing enough to satisfy idaintitl's'
jintriivur or i
'ijiMisiigaiiiJ
letinne, and tliat the defend- ! '.'.(MM) Imsliels. (,)ii
ihether defendants, as
ist liim, set up the riglitof the ' wroiig-di
jnnrtga;
teL's. Jtiitfiin V. UiitiuUh, 10 (A ' property not passing liy
lid set up the olijeetioll of the
11 ot iionappropri-
ItTiiiass for taking good.s it ajipeare
ation or non seveianee. ('.(/'('/ '' "'• ^'- '/"
d that '' Q'"'"'' ^'""'''- -"^ ^'- ''• ' 't>- Aliirmed in appeal
.1.- came
to the pliiintiU's' wareliousu
at ' :vp>i
I strong, \'. ('., dis.senting. //«.
ki„i, iiiiisignei
( ii}'
|,.il!a;iaili.
i to
I",
mil were seizei
feiiiiaiit under a writ of re])levin M. &('(i.,at (iiielph, lionglit a car load of
■ t 1'. hv one 11.: I', asserted that wiieat on eoiumission for ('
T'l
ii'y p,
Kil. ami
IM
l^lit the goods from II.
tliu .luilge before whom tlie case way, taking tli
itliiiut a jury, found that the goods name as consignees. The e
H. : Hehl, tliat the defendant, not ; the care of ('., at Waterdown ; M. ,t Co., bi
ir it
h H. themselves, and shipped it by defend.uit's rail
•ailway reeeijit in their
hlr
ir was adilre.ssei
111 to
j'liuiTO wrongdoer, w.us at liberty to dis- ^ aware that it was to be ground there for ( '. Tho
iliiiiititfs' title and set np tho titlo of , receipt was endorsed by them to the order of tho
I ffii.r a (ilea i
if not posses.sed ; and that he ^ Cmadian 15aiik of (
Th
'h til
ferofiiiv entitled to a verdict on the find- . Bank they drew npon ('. at fifteen days sight
\,;,.,l W,.<hrii A*, ir. (
II HI.
j!ii-v were
Ifci
McEiraii, 30 I for tho price, witli their commission and bank
I charges, and discounted the draft with tlio
IM ,iiid trover for saw logs it appeared receipt attached as collater.al security. At
i; cut ill l8t)S by Olio F., and sidd Waterdown, the wheat was delivered by defon-
the iilaiutitt's in l.S()!». Tlic land on ' dauts upon C.'s order to his brother, who had a
Li ill. y Wire cut had been sohl in 181)4 by niill there. It was mixed by him with other
jii'tH i!., who made a payment then and | wheat and ground, and tifty-livo liaiTcls of tlour,
ruiiiit. In ISllI) 1>. transferred his in-
■■ the dcfeiulant, who marked the logs ,
Iraft matured, and M. & Co. took it \\\> and got
railway reeeijit re-endorsed to them. C.'s
the eipiivalent for it, was delivered by him to du-
feiidaiits for t'. C liecamo insolvent before tho
ii,.~ UKiik before they left the land. In'
|iillM'j'.l,ilcfeiidaiit obtained a patent for tlic
in Ainil he seized the logs, which
lis the iilaiut ill's' possession : -Hold, that ^
pLiutill's were entitled to recover; for:
Ijii till- h^ when cut were tho property of
CT, the iilaiiitill's were in jiossession when
Bkttiiok tlieiii, and tho defendant being a
'ii«r emild not sot np the jns tertii.
|[inM'/./((/. v. Sinil/i ef a/., 30 Q. B. 1)07.
Itn'.i;!' had sidd certain goods to M., which
l.t tiie time lying at ilofeiidants' railway
iii,-iii4 il'i'iiiiliiiit.-i iccir fiil/ji inrnre nf tlie.
,fct uiitwithstaiidiiig they eoiitraeted with
itS t'l earry and deliver them for him as
Laii'l i;aveiiiiu a shipping bill accordiiig-
naiKiotiim hy plaintitt' against dofendaiits
\h: iiiiiiilelivery : Held, that defendants
(Init Set iiji M.'s title to the goods as ag.ainst
|(liii!tili'. it further aiipoarod that though
i imtilied defendants of his claim, and
kultmaud for the goods, he had but in fact
Ifliiutilf and recovered his whole claim
\m. Hehl, also, that tho case couhl not be
^t within tlie principle of a bailoe setting
'tj»s tertii against the plaiiitiH', for they
»W Wiiifi tide defending in right of such
Vl^tsiii. liritly. Urand Tnmk R. W. Co.,
U.«0.
Ht«iilaiiitifT 2,000 out of 3,000 bushels
P«'"Wiedl)y him and lying in two bins in
1'24
the
assignee having sued the defondants in trover
and detinue for the flour, they in iirivity with
M. & Co., denied tlio plaiiititl's riglit to it, and
set up tiie title of M. & Co. The ease liaving
been tried without a jury : — Hold, that tiie de-
fendants were entitled to set up tho titlo of M,
it Co. as a defence. J/((.wh v. Lircat Wcfttrn II.
W. Co., 31 l,>. H. 73.
1.
n.
JUSTICE OF THE PEACE.
Qr.vi.ifir.vTtox OK, 1071.
JruisincrioN a.vu Dirv.
1. JJiii/iiiilificatiuii bij ruiiKon of Iiitcfci/,
um.
2. LoatVilij iifKriiYiiiiKj JiirUdktloii, 1973.
3. Bnadi of tlir Peace, 1974.
4. C'onte»ii>f'<, 1974.
,5. As.iiiiill!*, 197.">.
G. Ou.ifiii<i JtirisdicHtjii hi/ Chtim of Title
or'niijlil, 197(J.
7. Jii Other Cane.-!, 1976.
(a) Jidil III CrlmiiHd Cases—See Crim-
inal Law.
(b) Baii-dy Howe— See Bawdy House.
Bl||. f,
' f
; \
i.i
i .
' f
ik .
tilm
Ij y
Wm
W^W \
]i^
pS'ifi, 1
wJM
i£.'hi 1
(c) K.i!i-itl'itl)ii CiiHi'H — SVc ExruAiii-
•|()N.
(d) AfiLiti'i- mill Sf'riuinf —Sec Mahteu
AND SkKVANT.
(u) Tdn'riis anil SliupH—ScK Tavkhnm
AND SlKH'S.
(f) Tol/s Sir WAV.
riiui'KDrilK.
1. Iiil'iiriifil'iiiitM mill Coiii/iliiiiif.t, 1077.
2. LimiliiHiiii iif Tiiiii' J'ur Mitk'i injur Luji-
iinj, 1!>7H.
3. C'oiirxr iif I'roniilhiij, 1078.
CoNvicrroNs.
1, Fnrill mill Ifn/ilixifi 1 of.
(a) (Innriilhi, 1070.
(b) //f Parlkiilar rw.vrx, 1980.
2. Qiiiitliiiiii.
(a) /'riicfiri', lOS'.'.
(h) O/Zn-y TrMM, 1083.
.3. 0//(,-;' rW.iM, 108-t.
4. Apiii-iil /niiii—iSi'i' Skssions.
,5. CirHiii'iirl III liriiii/ up ('fiii'irlioiix—Si'e
Ckiitiohaui.
, Actions voh not IiKtui{NIN(1 Convic-
tions, 1084.
, Commitments.
1. Viiliill/!/, Fiirni, mill Ki'i/iilni/i'mj', 1088.
Waiujant of Distkkss, 1002.
PkoTEC'TION TN lOXKCUTION OF DuTY.
1. Princijili'.i of Iiininniil!/, 1093.
2. Jr/iiiij Within Jarltdivtion, 1003.
,3. Arlinij Willnml, or in Excens of Jurisdic-
tion, 100().
4. Tiiiilir of Amends, 1998.
5. Diiiniiijc's, 1908. •
(). Costs, 1000.
Actions aiiainst Maoistuatks, 2lX)0.
1. Xotiri' if Action to — S'l'o Action and
fSriT.
Miscellaneous Cases, 2001.
CoKONER — See Coroner.
Criminal Inkoioiation aoaixst — Si>e
Criminal Informatio.n.
Certificate of Notice of Loss under
Policy — See In.surance.
Extortion hy— .S'ce Criminal Law.
Mandamus to— -SVb Mandamus.
Police Maolstrate— jS'sc Police Magis-
trate.
XVII. Sessions— .SVe Sessions.
Y,
VI
VII.
VIII.
IX.
X.
XL
XIL
XIII.
XIV.
XV.
XVI.
I. Qualification of.
In a qui tarn action against the defendant
for acting as a Justice of the Peace without
sufficient property (lualification, where the evi-
dence offered by plaintiff as to the vahie of
tho land and picinises im whi,], ,i,.fy||,
liud was va),'iic, Hipuciilaliv,!, ainl' in, ,,
one iif the witiu.'SMeM, in i;i,;t, Ij.ivim- /
rucallfil his testiiii,p|iya.H to tiie v.iluj',,'.'
of tlu! premises, and placwl a iiiul,,.',. ''"1
upon It ; whdo tlic ovid,,M.v t(Mi.lert,| l,v ,i 1
fendant was p.-itiv,,. and l„u,,.,l „, , J
data: Ihdd, ( A. \\ ,ls„n, ,1., aij.,, „ S
jury were n^htly .lireutf.l, "that tli.'v . ,
be fully .•^atl.-tliid us t,. tliu valii,. „f ,1,, ' A
j.roperty beton, liii.liiii,' U ihr uUm'J.
thuy should not «,•!-!, i|„. ,|,.,it ,; j^^ J '
nicely balancod ; and that any PfasciuM,' "
shtpidd 111' in favoiii-ul' tiii' ilcfumlaiit " lil
tioiis on tlu.' ]irinciiii(,. of tli,. vaiimii,,,, ..'fl
with a view to dututiuiniiij.' tin- |.i,,|,oit, „
cation of justices. Siiiiiri n f . i • '
C. V. 284. !■ t. ^. I,
Under C. S. V. C. ,., mo, «. .-j^ ,i,,,
(juidilication ))y a .1. I', imist li/'tik,,,
some .1. r. of the county fur whi,.]", li/i,,!,,
act, It cannot bo uiliiiinistur,.,! ],y ()„ ,',]']
the peace for such (^miity, uimU'i- tli.'»-J
dodunus potcstatLiu issued witli tin- rn'iml
of the peace. Iln-tiirt i|. t v I),,,
Q. 15.427. See 20 Vi,.t. ,■. I^; siiu.; ,'«,
C S. IT.C c 100. s. 3, ,„.m.nl,i„,MlM
lication ot justices, docs nut rwiuirc tli,.|ii(
a legal ustate ; it is siilliciciit if tlic |,,i„| tjJ
mortgaged in fee, exceed liv .vi.joo tl|,||J
of the mortgage! money. /■>,(«,• „ t v \IA
zii; 28 Q. B. 2.-).'-.. ' i- ■' 't
I'lider the :Muiiicipal Act uf ISik; a< uud
by 31 Vict. c. .30, ()., an aMcimuii
olfieio authorized to act as a. I. I', until h]
taken the oath of i|ualilic.itinii as sudi
V. Hoi/li', 4 1'. K. 2.-|(i. -('. I,, chanil,'.
son.
A warrant of conunitincnt under .'il Vj
10, I)., signed liy one ijnidilicil jnstiiv „
peace, and Ity an aldcniiau wliu liail nut i
the necessary oath, is invaliil tu nphcM til
teution of a prisoner conliiicd luniei'it, tlioi
might be a justilicatioa to a pcrs^ni aitin"j
it on an action against liini. ///. '
XL JntismcTKiv and Dity.
L DisijHatijirntiiin lnj rnisnn uf l„i<i-e
Attachment lies against c(ininiis>i.iii|
Courts of Ue(piests who try causes in wliicj
have an interest, though rcnnitu. /iVv.
tiiri', Tay. 22.
Discpialitication of magistrate giving' a]
ficate of los.s under tire imHcy, as l..iiij
cerned in the loss. ,See Mcllnssi' v. I'm
Jns. Co., 34 Q. B. 5.').
The Hidicitor of tlie luisliuml liciiij; tityl
der, was Held not to be (iisiiuaiilicil t»ta[
magistrate tlie examinatiun uf a niairiiil
for the conveyance of her lands. Si'iagi
dubitante. Kumiuus v. Fnixn; 17 Clid
S. C, 10 Cliy. 07.
Magistrates interested in the traiisai;tij
not competent to take the exaiiiiniitidii off
ried woman for the conveyance uf herlai
The solicitor of the husb;uul is U'lt i
disqualiHed. Jb.
11
I'lnlHt'S nil wlliili ill:fi:nil:liiln|
, sjpui:ulalivi:, iiml iii,\,iiiluj
i;s«U!l, ill t'lii't, lliiving ;ilt,Tv|
,iiu.piiv as tn till' v.iluuiit :qi()fl
ft, iiinl iiI.uimI ii liinluT i-.tii
till' uviiK'lli'i' tcll4l'l\-.l liy tllJ
wilivi!, ami liiisi:il midii tuil
\.\. Wilsnll, ,!., ilihs.,) thitl
tly clii-ccti"l, "tli;it tliiyi.ujj
im\ as tip tin: V.illli: iif (U'l'iiiill
■u lilnliliL,' fiPl' tliL' liliiiiitill ; I
,it Wfi;;li till' iiiiitt r ill ^^l|^
I ; ainl lliat any I'la-t.ii.ilili:
iVoiU' ipl till' il>'t\liil;uit." tl'
iriiiriipii^ ipI the valuatinu ut |
p ili'tfriuiiiiiis.' till' jiiiiiKTtv iju
lici'H, Siiiiin i|. t, V. Im
^. r. ('. .■. ion, «. 3, tin. ,„«
Ipv a .1. 1'. iinif<t \yi t.iki II lij
tliu ccpiiiity fnr wliii'li 111' iiiten
(it lif uiliiiiiiisti.'i'i'il liy till I'tej
r such i-ipuiilv, imilrr ilir wJ^
;((tatcm issuoA witli tliu i'"'Hmi|
3. Iln-lxii i\. t. V. Dur.
■(t'C '2'.) Vict. I'. \'l, silK't; li;b<i;(|
'. c. 100, s. I^, iin:si'rilpiiii.Mli
sticos, (liR's iiiit rL'i|uirt' tlu'iiit
J ; it is siilli'-'it'iit it till' luii'l.tij
11 fee, oxi'i'fd liy Si, -Jill til'
jagi' iiKiiuiy. /'V'!.-" /• t|. t. v .lf|
' "255.
Li Mmiiciipal Act nf I 'Slid, ii< ;iia(
. c. 30, O., an aMdiiiuii i>
iivi/eil tn act as a. I. 1'. until !
atli ipf c|ualilic.itiiiii as suili,
1'. It. •_'."ili. — (-'. 1- Clwiiili.
lit (if ciiniinitiucnt lunlt-'r 111 V|
lecl liy line i|uiiliiii'.l justi'
ly ail' alilcriiiaii wlm liinl ii"t I
•y natli, is iiivaliil tiMiiili"l'i ^
nrisciiioi' ciiuliucil iiuilur it, tlioi
tustilicatippli toaiiers'iuartiii'^l
li(piia;'aiiist liiiii. /''■
,Iii!isni("ri(is' ASH I'i'ty.
\i((tlillr<iliiill I'll /-HiM/il ';/' /iiM'e^
-ut lies ayaiint oipiiiiiii»i"tt|
leciucsts wliii try causes iin\liii«
%-est, tlimigh ivmipte. A''/ v,
loation of iiiagistratu giving a|
ks under tire i"plicy, .u .-.i
te Inss. See .l/W,'..v.--r v. I r<^
Q. li. 55.
Itor of the husViand heiiig cit;
Mil not to he clisiiualiliol t" ti
Ihc examination ot amamolt
Lyance of her lau.U. s™,
]i„innw:< V. Fra.'or, li tii
ly. <.>7.
,es interested in the traiHaotM
Lttotaketheexammatuiuofj
1 for the eonveyancu ot her I-
(tor of the hush;uul is int i
lb.
JII.STICK Ol-' TUE VKM'E.
1974
l_„filliti/ I'f Ejyv'iMIUJ Jiir'milii-linli.
1. jlljilftvit of the n^ttirning otliciu' vurifying
I lUiis ""'"'"i "" '''"' '-'"' "' •'•inuary, hu-
1 ^hiilicld a coiiiiiiissiim hm justice of tlio
■j',, ila' united couiiticM of York, Ontario,
j^l (tiitirio litiil lifdii He|iar, led fr(Ptii
issued at l^uo-
1 all'
IPV
had iifdii
iirip(daiiritloii
•I'liilier, hut it was not
< >iitario knew of this
ciitvhiiiits.
L.J. 10-J
kiintllf :tl:t .Pf Ite
itliiit :niy ipiK^ ill
miiti'iii iiiitil ivfti^r the I'leetiim : Held,
li'iil authority to take the allidavit.
J.,',/. /,';v." V. I'liT!/,' III., I I'. K. '-'.ST.
[L Chaiiih. Kciliiiisoii.
[|,,ri', wliitiier A., iiotwitlist indiiif,' thi^ Kej)-
Tj. W'liilil nut still eoiitiiiui! a justice of the
ii,ir tlu' tiii'c.e counties, and iiiithipri/ed to
j„f jiiv ipiie while he was in it, or at least
llkjl 111 wliicli lie was resident. /'<.
bie, ii;ive the aldoriiieii of a city, as cx-
niiiiticw iif the jieaco, any jurisdiction Ipc-
'' '^- /I'liiiiincrrcl. Jlliisili It V.
-('. ('. — Armstrong.
in aitiipii for causing defendant to lio
illcl'iire a magistrate with niisdenieanoiir.
Sell till' iiiagistrato issued his warrant and
itiif Hils arrested, it a[i[ieareil tli.'it tliu
was alleged to have lieen e(p|iiliiitted liy
Aiitilf ill tl'eeonnty of Middlesex, hut the
Twasm:iile and the warrant issued in the
IjLi.iiiliiii, liy a justice of the \icace for the
iiiilv, ii'it for the city ; -Held, that as
i«i2istrato, acting out of his jurisdiction,
l»j aiitlmrity whatever, the action was mis-
Itivpl; that it was as if defendant had liiin-
I'iiMtttl the arrest ; and that tresiiass,
(Bore iiiit case, was the jiroper remedy.
(v..l/i'.lW/(»/', -HQ. B. 2,-)4.
huing indicted for iierjury in
jjeviilciioe iiiinii a ehiirge of felony against
Ed., itainioarod that the felony was eom-
liii the cipunty of Middlesex, if at all.
Iwti'i's lii'fiPi'e wliom the examination took
jeiitiitaiiieil the charge and examined the
isti within the city of liOinhm. Defen-
n;iiiii'l iiliji'cted at the trial that the
!, liciiig justices of the county of Middle-
IW no jurisdiction, sitting in London, to
ineiiitiKiii otl'ence committed outside the
nits; — Held, that the conviction wa.s
E-'/mi v. /,'.<»', 14 C!. 1'. 307.
I,tli.itliniieri,vl statute 28 (leo. III. e. 4!),
|iiiliic.il in its character, and not in force
.11.
klltlnt the great inland lakes of Canada
piiitlH'iulmir.alty jurisdiction, and oll'en-
litteil (111 them are as though eommitted
kigh .leivs ; and therefore any magistrate
ipnniiice has authority to enijuire into
I committed on said lakes, although in
nuMttrs. Itiii'iiKi V. Sharp, 5 P. R. 135.
(Ll1iaml..-Wil8on.
lion 8 „[ 32 & 33 Vict. c. 23, D., applies
ItKsot [lerjury, not merely to "perjuries
lace cases," which is the heading under
kiecs. 4 to 12 are placed in the act : —
^tierefore, that a magistrate in the county
Vin hail jurisdiction to take an iuforma-
l«l to .'^iipreheud and bind over a person
Tlfith perjury committed in the county
fctou. lie'jina v. Carrie, 31 Q. B. 582.
3. /lrr(icl( III' /III /'iiii'i\
III a couimitiiK.'nt for want of llnding iiivtit^s
for tlie peace, is it necessary to state th.-it tho
justice had information on (p.ith which would
justify him in Ipiiiding the prisoiicr to keep tha
peace. liiiifMiii V. Frinir, 7 <,'. It. ,'{!il.
A eonimitment in default of sureties to keep
the peace should shew the date on wliich the
worils were alleged to have lieeii spohcii, and
contain a stati'ineiit to tliu cU'ect that cipiiiplain-
,iiit is aiiprchciisivc of Kodily iiijiirv. /u re
j /.V«, 3 P. H. .'tOI. ('. L. Chaoil,. Wilson.
1 Where an information coiitaineil every mato-
rial averment necessary to give a niagistrato
jiiiisdiction to make an (prder iiipon the pi lintilF
; to lillil sureties to the peace, Imt eolitaiiU'd also
additional niitter, which it was contended so
([iialilied and explailieil these averments an to
rcmli'r them nng.itory ; -Held, that tlii.-^ wa.s a
jiidieial ijiiestioii fipr the magistrate tip d.'inde,
and tlierefipi-e that in issui'ig his warr.int lor tho
appearance (pf tin aceu-ed he was not acting
without jurisdiction, even although a superior
court niigiit ((uash his .pi-dcr to lind sureties.
.Slim III) v. Awli r.i'1,1, 23 < '. P. 1.52.
4.
.///
' iiijii
j A justice may cipiiiiiiit for contcinipt w jiile in
the excenliipii of his (ptiicc, (Piit ipf sessions, hut
it must lie liy a warrant in M'riting, and for a
1 s]iiicilied period, .fniiix v. tKii.ij'nril, .M . T. 2
\'ict.
Where in an investigation of a ehaige under
the Petty 'l"rcs|.ass Act, 4 Will. IV. c. 4, liefipre
magistrates, the jplaiiitill' was guilty iPi a con-
tempt, for wliicli the magistrates convicted him,
but without wariant, and the plaiiitiU'lpiiPUglit .an
action for false iinprisoimu'iit against tlicm and
recovered : Held, that the action did not ariso
in conseniierice of anything dipiie by the ni.agis-
tratcs under the Petty 'rrcs]ia»s Act, and that
therefore it was not necessary fipr the judge,
under the 21 at sec. (pf that ac't, to certify his
appripval of the verdict to entitle the plaintilV to
his cobts. Armiinrx. Jin.iirill, (j (). ,S. 450.
A commitment by a magistrate for cipiitempt,
if there be no recorded conviction, should shew
that the party was convicted of the contempt ;
stating that lie was (diarged with it, is insnlR-
cient. Mi'Kiir.'ii- v. Miu-lmrn, (i (). S. 4S().
Quiere, whether a justice of the peace executing
his duty in his own house, and not presiding in
any court, can legally punish for a contenipfc
committed there. Ih.
While a power resides in any court or judge
to commit for contempt, it is in the privilege of
such court or judgii to determine on the facts,
and it iloes not belong to any higher tribunal to
examine into the truth of the case. In rr ('Inrlce
Hal., 7Q. n. 22,3.
A justice of the peace, while sitting in the
discharge of his duty, has the power, without
any formal proceeding, to order .at once into
I custody, and cause the rcnuival of any party
who l)y his indecent 1)ehavi(jur or insulting lan-
guage is obstructing the administration of jus-
tice ; but he has no power either at the time of
misconduct much less on the ne.\t day to make
l»
JI'STICK OK
(lilt a wMitaiit til II I' iii.stiilili' iiikI tn idliiiiiit Hio
iiltiiiilih;; party tii md.iI fur miy ('ci'tiiiii tiiiu' liy '
Muy 111 |iiiiiisliiiii ut. witli'iiil ii.liiicl),'iii^r liiiii fur-
limll\, attiT II HlllilllliillH to;ili|iiMr I'm' licarili;,', til
Hllt'll |iUllisllHli'llt nil ai-i'iillllt of llJH I'lllltl'llipt,
liliil iiiaUIiii; a iiiliiiiti' nf siii Ii Hciitiin'i', fli.
.\ wiirraut to ii. fiiiintalili! tn I'diiiiiiit fur fiui-
ti'iM|il, '•iMitiiiniiij,' !i iliri'i'tinii tn i/i 'ulii flu /mri/i
fiir tile Himi'L' lit two \v('('k«, .iiiil until lir sliuil
p.iy tlui ciistts iif lii.1 .'i|iiiri'lii'iiMiiiii ami iMHivcy-
niiuu to i!u<(l, Ih (lulVctivu. / li.
A iiriMiiiici' Mils coiiviit il tlii'i'c tiiiii'H the Haiiut
ilay t.ii- iiisoli lit iniiiliicl tn II iiia;,'istratc nil tlic
Ik'IIi II, ami ilctaiiu'il in jhIhoii iuhIit tlirrc siv-
cral M.iriaiitM, al' ilatnl tliii -iatiii' ilay, tlic |nriiMlH
of inijii iiiiiiniciit in tlio two ]i\nt rniiinirni'iii;,' fnnii
tln^ I'VpiiMtinii iif till" iiiu' jirut'i'ilinj; it, Imt llm
lirst tn lie cniiiiiutcil " finiii tin' tiiiii! nf IiIm arii
val ami ilulivcry Ky tl.c Kailill' iiitn yniir, tlii'
gaiilcr'.'i, cUMtoily tliciurfniwai'il ;" Helil, tllllt
tlio iiia;,'i.sti'ato liail a ii.;lit tn cniivirt ami tn hi'ii-
telic<' t'nr (■niitiliiiiliL; lii'iinils, l.iit that tlii^ iicmoiIh
of illl|ilisnnnirlll, ilrlirlidili;,' nil the will nf tilt,'
otlici'i, uliii was til ilrlivrr liiiii tn till' j,'aiilir,
wori' iiiH'i'i'taiii, ami tin,' piisnucr was tlu'rotnrc cii-
titk'il tn Ilia ilisoliargd. Itniiim v. Sfiilt, •_' !,, .).
N. S. 'M:\. ( '. I,. Cliaiiil). .'l. Wilson. Sff, alsn,
//( re Criiii; I I,. .1. N. S. ;10-.'. ('. I,. Cliaiiili.
A. Wilson.
TIIK I'KACK
"tl'iiii'c, mil' liavinu Iki
Kii
5. Aitttiii/f/i,
A ]ili'a of I'oiivictinn iinilcr tlio IVtt.y Trospass
Aft, i Will. I\'. f. t. to an actinii fnr an assault
anil liatttiy, is iint .--iiinjoitcil liy a ])i'nof of a
com iitinii fnr an a.ssault alnm.'. DcLtmij v, J/c-
jh,„rii, !•;. T. -J. \'ict.
At cninuiou law niau'istratcs li.ave no suniinarv
jufi'<i!irtinii tn try i-niiiplaints i^v .assaults. 'I'lio
jurisiii' tioii is (k'livt'il solrly froiii ('. ,S. ( '. o.
in, mill I'aii only bt! uxi^'iviscil vliuro ]irayoil
iin<l»'i' that statute. In /•<• Sirityr el id., !) L. ,).
<,>. S. Il.arrisnii.
In an ai'tinn for assault ami liattory (k'fumlanta
pleaiU.Ml that, iimka' ('. S. ('. c. .S, s. 7, they VMiru
eonvictuil of tho same assault hy two .1. P.s,
mill on appeal to the .^I'ssimis weru acipiitteil,
anil the justices then presiilinu, upon request,
cave, eaeh of th(^iii a eertilieate of siieh aeipiittal,
111 aeeniil.-iUi e wiMi see. A'l. I'pon exception
to the jileas ;- Held, 1. That the eertilieate
must tie ohtaineil from tlie eonvietiii,!,' justice on
the tir.st hearing of the case, ainl tli.at this cei'titi-
catc, thercfnn', was no bar. '1. That the pica
hIiouIiI allege th.it the party aggrieved jirayed
the magistrate to proceed suiniiiaiily under the
act. Wixthroiik v. Ciilinjliiin, \'l L'. 1'. (iKi.
It a])])earcd, on an i.jiplication for a habeas
corpus, that tiie infniaii.'ition laid before a ]ioliec
magistrate and wair.aiit to apprehend were for
an assaulting ami beating, but it was tiisputril
whether iipontiic ex.uiiinatinii and trial this \\a.s
all the charge uiad., nr wiiether he was lint then
charged w itli an aggravated assault; and whe-
ther, when he pleaded guilty, he did so to the
former or the latter ehai'L'e ; iiumemiis contra-
dictory alHdavits were tiled. l""our several war
rants of coinniitinent were in the gaoler's hands,
upon line at least of which the prisoner was
detained in custody. They were all tor the same
ollellce, one h.lVlli^ lie, n fi.,.ii, t;,.. »
'stitntedfortheotL,.. '',;;;::;,';;';:; ;;,;''-
Inr or KM' what purpo.s,, allidMvit, ,.,„ ,';;"■
aKaiiistaeniivietinn orwan.iit „f ,„""
valid on the lace of it. A jml r i-ii m
into tlli^ .•olielllsiniin ut „||i,,j' (1,,"',"' """
'"'■••iv-1 if h.'.had jurisdiet,, J,,,,' '■-■'!
'■mrged ,aml '-<"■'! u ,ir„p,.r „,un.„t ' J,'
charge, but niayempnie iiiti, «|,„t th, .i
was or whether tluie „„, a rii.uu,, ,,, ,, .'
S.( e... pri lablyapplie, ,y',^',, J^
Haiilt... \-i.. A charge ,.faHs:mlti,„J'|'^
IS not a charge nl aggravated ;..,,„1, .J'^^
plaint ot the lorni.rwill imt MHtnin ^v ,., '.■
o( the latter, tlmiigh wln.i tii.. ,,,irtv u 1
the magistrate, the eharj;,. „f ■,,„,',.,, v,t,'l .1
^ nmyb,. made 111 writing,,,,! ti,lln«,.,il,;!
vietlnii thrretnr, /„ ,., l/„/^•; ,, . V
••(•-'<■ <'. I.. <'liamb. A. \\,|.„„, •
See III rr CuiL-Ini, ;(| (J. p,, i,;,,^ |, |,|.^
(1. (hislUiii .1 ,n-;s,i;,-H„n I,,, ( •/,„■„, ,,;• y;,/,, „^,^
\ Held, tli;it tiie dcfcliihiiit aphuiiriii"
evidence returned tn li;ive li,,||,i |i,le ,it,,|.
; claim to the land whi.li h,.. I,,,,! ,.||,.|„J,,,| j,
not ;i proper else b,r the ifil,|ii,lir,a'i„„' J
Imavnr lot I'elleviUe) iimjer the 7"ii,l , ,■ ]
chiiise nf !•_' \'iet. c. S'2 ; ami tli,i- d,, .„,„
conviction ol defendant under tli,it ,itt fd
strueting a wtreet, might he i|ii,i.sk,i l.yT
orari. JUjlnii v. Tiujiu,; ,S (^1. 1!. 'j,". ]
7. //' '"/'(,' CifiA.
The seller of Hour in hiiricls ii„t iniirk,
br,iiided under -!• iV: .") \iet. e. ,Si), s. •.';), wd
liible to the penalty iiii]iii.<ril, mily tlif'iiial
j turer or ii,ieker ; ami iii,if.'istr,iti's hiui nd
I m,iry jurisdiction where the .■ii'iiinnilatnli
I ties Were more than UUl. l/i'piuty li,X
•2(). ii. .-i7.
Under 1 A'ict.
S. '_'(, :l lll,li.ri,<tr,1ti'
c;iu.sc the arrest of ;i p,iity in tiie lirst in.t,iij
a charge iif neglect to pcfiiiiiii ^t.itiiti.' liiK-
must be tiiv-t suiuiiinned liefele liilii. ( ,
' V. Soiiiiiiirril/,; 3 Q. U. I'J!).
I ('onvietinii by a mngistmto for olistriic^
[ higli\v:iy. and order to jwiy a ciuitiiimi^
j until the removal of hih^Ii uhstnutiim ;
: bad. lii'ii'uiii w lliih, /■, 1.-, (,). ii. ,-,811.
i It w:is stated in an al'iiLavit in «',i']'('rt^
', rule for ,i nc\s trial in an ,iitieii fiii .•inln
thiit the phuntill" had sworn lictnru ,i iii;ijj
; til, it delendant never lunl eriiiiiiuil omn
I with her. The niiigistnitc, in <ui iifliilav^
! on shewing cause, stated that tif '
brnther, S. , witli the girl .sftie .■ ii,iv«
seduced, and her niotle "P- him tO(
• siiying til, it the ,i_ : e
brnther, that his - von lil,
ruiiiour w,is afl'cct! ly iinn-ii : i
the magistnite, wisi .In <niL 'liiig
the old hidy ilie e;i»y, ,i:ii- at the ••iiiie I
let the girl have ;i chance to hw- t!:
S. , inserted in the ,itlid:ivit tiikiii iRi.fe
words "criinimd coniiectiini," iiistoail
n,d connection." Sueli cmiiliift wn
. censured. Mcllrou v, llnll, i"i (»'. I'.
.If STICK OK Tin: i'i:a('K
1078
iiiK lifiii friiMi tiinc t.i inn,,
cillii r, (^11. 1 IT, wli.iK, r, „r]
ilir\"i.-'i', llll'hlllvitHiMlllHTiT
tinii III- MJin lilt ii( I'Hiiiinitrf
r lit' it. A jinl^i' i'i\iiiiiit ,.||(]
,iMiiiii:4 ut xslii'li till iimi'ml
lllll jlll'i^llirtinll iiVlT till' lid
■iiiiil u (iii'iK r M.iriuiit uiH.ii I
y iiii|mii' iiitii wliiit tliiit I ■
V tin li' W»H II rii:iH(i' lit iill.l
:ili|y lljililii .1 iiiily til rnmiinii
i'lml';,'i' !■!' iiitK'iiiltiii^ lunl l<«i
iif .•ii^i:n\\:iti'il Nssaiilt, ;tiiil .\l
iniii r will iiiit ""Uitiiiii iiniiivi|
:liiiiii,'li \\liiu tlir \iiirty '\*
, tli«' i'li;ir:4i' "f :i^!;;ri!V;itiil ;
ill svvitiii;,' innl fiillnwnl liy a|
11'. In /■' .'/■•/\''i'""/i, 'J I,. .1.
Iiiiliil'. A. Wil-Mii.
,iihr,-i, ;u (.». I'., ii;(i, j.. hits. I
ri.-tilirlioii hill 'I, In. I (i/ T'll ..,■
the ili'l'i'lnlaiit, :ili|iuiil'ili;;
inii'il til liavi' liMiiM llilu ii>M
iiuiil wliiili 1k' 1i:"1 I'lidiiMil, if
i;asr inr till: 1 ilpiiliriltii'li
flli;villc) umUt till' T'^Iiiil i.r :
Virl. I'. H'J ; mill tliii', tin.' Mid
I' ilfffliiliilil liliiU'i- tli:it ;ia fJ
Mtivi't, ininlil lit i|U;i.'*lail lyj
id V. v'k;//"-', .s tj. 1'.. •::',.
~. In ntlirr CiI>;a.
of lliiiir in liiini'lH imt iiu
4 t>v ."> Vii't. I'. Sll, s. 'JH, wil
ii'iiiitty imi'iisi'il. Hilly till' inii^
ii'V ; liiiil iiiii'/istvuti's liml iia{
iiiii wIk'Vi' till' lu'iiiiinilati'ilj
n; than CIO. It"/"'" v. !>•*
ii't. 0. 'Jl, ;*• -7. :» iiuigi^tniti'
■st of aiKuty ill llu' tirst iii-ta^
"k'ft til inTli'iiu ?t,itiiti-'l '
siiliiliiiiiic'l lii-'li'iL' liilii-
//., :ui. r.. i-'.>-
ly a iiia^isti'iito t'"i' nl'-^tnic
.il 'onliT to jiay :i cinitiiiuiu
iiiiival lit' Hiioh iilistnu'tMu;
tcil ill aiiariihivitiiifn.riTtj
w trial in :iii iK'timi U ^Ai
iitirt" liml swiirii lii:tiiru:iiM;ig|
iiit novor hail fviniiiKil oiiu'
I'hf iiiagistniti.', ill an alh.i..^
I cause, statcil that 'I
with the '.ill -■ ■'•"'
i,iiii'i- hail liiTii i'riii\ ji'tril liy iiiiii jiiM- finiii till' riiiii|il,iiiiaiit, till' Niiiii i(f S.'i, I'Miitrary
, iHai 1' 111 hi'iiiu I* vaj^iaiit iimiri' .'I'.' \ H.'l to law," iniiitliii'.^ I lie wuiiIh " with in tint ti ilti-
fiaiiil," whii'li liv till' xtatiiti' .TJ A ;i;i N'lit.
Il hov ninth'
the .
It liis ■
laH'i-'ctii
lie f'i\V,
■niM tfll
. Vl'l\ ill
., cry iiiiH'li •
ilii siiii;'''iiii|
lllll' 1
at tht
■JS, jl. , wliii'h ri'i|niii'H till' i'iiii\ii'f inn tu
Id'iiri' liny "tiiu'Miliiiry nr pnlii'i' iimj,'iHti'ati',
f or wai'ih'", nr iiliy two jiiHtiei'H nl the
Ih'lil. tll'^t' ''''*' enlivii'tiiill U'll.H lillil, IIM
il nut ii|il»'.il' that the jllNtlee w.ls a |iiilii'e
.rite. It'ijiiiii. V. C/iuiii/i, 7 I'. 11. ( '. I..
b A. ^\ il-^nii. Nut yet lepiirteil.
,re, wlictlier tht> eoiivietinii wniilil liitvu
,,,'llf it liail aii|i.'iiri'il in the warrant that
^^liii^i fur the |iiilii'e ina^'istrate miiler .'til
It, K. 'HIS, nr whether tWii jllstireM Wnlllil
|ljV'l«'i'n |-«i|iiil'eil. /''.
III. I'ltnCKIMKI';.
I. liil'iii'iiiiiHiiiiti illliI I'liniiiliihilt.
ure, H'oiljil 11 eiiiiiiilaiiit U),'ainst \. that he
(ittiiin the aet nt' ik'.-'.trnviiih' nr injuring
nttiiriilii'lty," >vitliniit alle^;illg that it he-
«,! tu luiiitlii'i" lier^inn, nr lliat the le't wa.s
jj;lviiriialii'inii''<l,V ilniie, aiithnii/e il warrant
('ilii;llii'iiillH injlH',V tn jil'mierty lllnler \_k
fttc.'ii'
■ th'
liavi' a I'hiwcc to fiWi
Tin the atliihivit taken t.d"rel
i,„il ciiliueetiiin," i»»t^''"' ^
,,,11 " Such eiiuiliift vi'TV
■jii, I'liii-cll V. WiUiiiiiiMiii, 1 l^. 15, l.'i^
KC'iurt I'l'fiisi'il n iiiaiiilaniUM tn twn jn.stiee.s
IMt tXi'Clltiiill lllinli a enlivii'tliili, llliilel' I)
I IV, I', 't, »■ -. tni' '^elliii;,' HiiirituiiUH liiiunr.s
jot liofiiai', the eniivietiim having' lieeii
ftUillimi tlie written statement nl the iii-
j, anil tin; iiath nl niie ntlii'i- w itiie>.s ; there
llilmilit, miller the statute, whether the
Btli'lH'llKl't lint also tn lie nil iiatll. /i',;//'/,n
ll-i.W,-//, li 0. S. til'!!.
(wraut lit a magistrate is niily juima
|iaitciiiu.lil8ive eviileliee nf its eniitelit.s, as,
taua, iif nil iiilnrmatinii nii nath anil in
^liiviii^' lieuli laiil liel'nre him. .Sueli iii-
Biiii luiwt he, miller ('. .S. I'. ( '. e. ItCi, s.
iiiiK nil nalli hut ill writing, anil e.\ee)it
(■iij'niiiitii'ii thus liiiil there is iin aiithnrity
itilii'MiiiTant. Frii-I V. Firiiiison, l.->('. I'.
l», aliii, .1/'/'/''"" V. Li/i/iir, 'MV. I'. 1,SS.
kinfi.niiatiiin stateil that the infnrniant hail
tlria«"ii tiilielievc that the ileatli nf K. S.
iMSiilliytlicaitiiiiiiistratiiiii nf siiiiie jinisnii-
|fe.'!'V.I. S., Iii.i wife, nil nr liefnre the l.'ith
L-t, ';iiiil mi thi.s eliarge a warrant was
liiirtln; aii|irehensinii nf .1. S; Helil,
lli!il"iiy WHS ihargeil, fnr the ailiiiinistra-
liillivilrii;' might have hi'en either aeeiileii-
li!aiin.'ilii;iiu,' ; ami that there was nnthiiig
e'lfe nil which to fniinil the magistrate's
toi. Slri,l,iii.^ V. ,S7( ///««.<, '24('. r. 4'24.
imformatiiiii, iirniluced at the trial nf an
liur iiuilioimis innseeution, was, that the
ills |irt'iiii.si.'s were set on lire; that he
Ireas i tn helieve they were set on tire
M'hiiit mill jir.iyod that the iilaiiititl'
■ill]'! answer "the saiil eharge." The
^.n iiK. CL'il that defendant eharged the
hliiiviiit; unlawfully and inalicinusly
the ilcfeiiilaiit's iiremises : Held,
I iiir tlio jilaiiitit}', that the deelara-
ii;;li iiiit snilicieiitly preeise, might lie
iniimrt a crime ; but that there was a
sWtwetn the declaration and evidence,
ik'niutii'ii t eliart'i'ig auy crime. Midi-
l^H .lil (). B. 78.
W'lmiatiim charged the idaiiitifT in this
p»itli having obtained "by false pretences
wlilrli liy till' statute .TJ \ ,1,1 \ nt. e, '.'I,
H. '.I,'l, is III. nil' part nf the nH'i'iiie : llelil, that
defeiiihuit had jiirisiliitinii, and was imt li.ilile in
ti-en|iaNs, t'lir the iiifiiriiiatinii might by intenil'-
nieiit be rend as I hinging the Hlaliltalile nlliiiee j
and if nut, the jilaiiitiH should li.ive tiiKiii the
iibjei'tinli lii't'iiri' till' iiuigistiati', when tin' infnr-
niatinii might havi' been ami'inliil and rc^wnrii,
and he w.iH iirieludeil frniii r.iising it in thin
aetinii. < 'rnir/iiiil \. limltii, ;t.l <,». It. |;i.
See /(( /■' fuiihlhi, ,'(l l^t, II. ICid, infra.
m. I.iiiillii/iiiii nf 'I'iini I'lir Miik'iii'j III' l.iii/iiii/,
[jiiying the infnrmatinii is tin rniiiiiu in i nieiit
of a iiinseeiitinn before a liiagistrate. .See. '2!i
ii< ■■(.'{ \'irt. e, ;(•_', ()., jiriA iili ,s that "all iirnsu-
I'litiiiiis iindi r this heetimi, shall be eoiiimi neeil
w ithiii twenty days after the eninmissimi of tbo
nil', lire, or atti r the eaiise of ai'tioli aio.-e, ami
not afterwards." The iiilormatinii ajjaiiist do-
I'eiidaiit was taken mi the IlKtli I leeeinlier, l(S7-,
laying the nll'iiiee nu the Kith jlieemlier. Ua
the l.'itli ■laiiu.iry, IS7,'I, a siimiiiniis u.ii issued
nil the information, and on the .'lOtli the defeu-
dantwas tried and eoiivieted: Held, that tlio
|iroseelitioii was eoiiiiiR need in time. U'lieii tllO
delay in inoeeiMliiig afier laying the iiil'oiiiiatinii
is great and dtleiidaiit .seriously jiiejuditod
thereby, he niigliL iieiha|i,s obtain relief I'lniu tlio
eourt. Jiii/iiia v. Liiiiiu.t, ii-l l^i. II. 'ZH,
,'t Ciiiirsi nl' I'mra iliiiij.
Seiiible, that after a lirst lonvietioli has been
relurned tn the (^liiarter .Sevsimis and liled, the
jiisti,'e, if he tliilih it defeetive, m:iy tile n seoniid.
i\'i/.snil V. I, 'mill,:, I, .") (t. 1',. •_'Li7,
The aiijilieaiit, ('., having appeared tn an in-
fnrmation tharging him with an assault, and
praying that the ease iiii>;lit be dispnsed nl sum-
marily under the statute, 11., the enmpl.iiiiaut,
applied to ameiiil the iiiformatioii by aiiiliiiu tlio
words, "falsely iiii)irisnii." This being leiused,
11. otlered no e\iil(.iiee, and a seeolid iiUnl iiiatioli
was at onee laid, iiieliidiiig the charge nl false
iiiiprisniinieiit. The magistrate refused tn givo
a certilicate nf dismissal nf the lirst charge, or
to proceed further thereon, Imt eiidmsed on tho
inforinalinn, " case withdrawn by pennis.-'oii of
the court, with the view of having a new iiifor-
iiiationlaid :" Held, that the eomplaiiiaut could
lint, even with the magistrate's cniiseiit, with-
draw the charge, the iletelidant being entitled to
have it dispnsed of : - Held, alsn, that an ilifnr-
inatinii may be amended, but if nii oath, it iiiust
be re-sworn ; and th.it the aiiieiidiiient might
have been made here. Seinble, that the more
correct course wiuild have been to go on with the
original cisc, ami, under .S2 & S.'l Vict. t'. '-'0, s.
4(i, tn refrain frnm adjudicating. A inandaiuus
to hear and deteriiiine the first charge, and, if
dismissed, to grant a certiticate of dismissal, was
however refused; fnrthe withdrawal was miiiva-
i lent tn a dismissal, and the magistrate might,
I under sec. 4(i. refrain from adjudicating, and if
it were dismissed without a hearing on tho
merits, there would be no certilicate. In re
; CoiiUiii, 31 Q. B. lUO.
'I
JUSnCE OF THE PEACE.
Mni
SciiiMo, tliat it is the duty fif <a magistrate at
a trial iiiidcr liis sutninary jurisdiction, to take
the exaniiuatioii and evideiiee in writing, Iiiyiiut
V. Fliiiiiiii/aii, 32 (J. B. f)93.
S,, a jnstici^ of tlie iieaco, ufjon an information
laid before liini, issued a summons for noni)ay-
ment of wages un(h;r ('. S. I', t. o. ~!t, see. 12,
returiKilile hefore himself or such other justices
as might then lie jiresent. On the return two
other justices were present who, without any
ohjectioii from S., heard the complaint with him.
At the conclusion of the case, these two thought
the complaint should he <lisi\iisscd, while S. was
in favour of the claimant, and against the pro-
test of ilnr other two, S. made an order reipiir
ing the dcfemlants to pay the claim and costs,
and in default that a distress .diould issue ; tlie
two other justices made an order dismissing the
complaint. Sulisci|uently a formal conviction
was <''.awn up, and signed and sealed liy S., the
whole proceedings heing set out as hefore him
alone, and afterwards a distress warrant was
issued liy him. The minuted of the evidence
taken down hy the magistrates' clerk, were
headed as in a cause lieforc tlie three justices :--
Held, that the conviction was clearly had, and
must he (pi:ish(Ml, .S. hiiving n<. exclusive right
to deal with the case merely hecause he had
issued the sunnnons. /fii/iiin v. Mihic it uL, '2')
G. r. 1)4. - llagarty, sitting in vacation.
The defemlant was convicted in .Tuly, 1874,
under the I'ul.lic Health Act. SC. Vict. e. 43, ().,
of creating a nuisance ; the magistrates refusing
to hear witncss<'s for the defence, on the ground
that the statute made no provision for sudi wit-
nesses hcing called : HcM, that an application
in May, 187"), for a mandannis to re-open the
complaint, was not too late, anil the writ was
granted; the refusal to hear one side heing the
saujc as if the case had not heen heard at all.
Soinhle, that a certiorari niigdit issue in such a
case, notwithstanding see. 35 of the act. Jtc
H„ll,iii,l, 37 *,>. 15. 214.
8ee n>vhoi V. Minim, 24 Q. B. 44, p. I!)0l ;
In ri' MrKhimm, 2 L. J. X. «. 324, p. I»7().
f/o-x V. Wilcoj; 3!> y. B. 187, p. llKtS.
IV. Convictions.
1. Form toil/ /{I'/iil.tifi.s of.
(a) (i'<ii<riif/i/.
A conviction under a hy-law must shew the
hy-law . that the court inav judge of its sutlicieiicy.
Ai'uiiio V. h'lM-i, M. T. 3 Vict.
Am! it must shew hy what nninicipality the
by-law was passed. Ri'ijbin v. Oslir, 32 (i. B. 324.
(^na-re, whether it is essential to state the date
or title of the hy law. Ih.
As to certain objections suggested to a convic-
tion, it was held a sutiieieiit answer that the con-
viction followed the form prescribed by the act,
L". S. ('. 0. 10.3, which was intende<l as a guide to
magistrates, and to prevent failure of justice
from trivial objections. liiid v. J/c W'hiiinie, et
III., 27 y. B. 289.
Where a form of conviction is not sanctioned
by any statute, it nnist he legal according to the
principles of tiio common law ; and in that case a
conviction, which docs not express thattli
had been sunmione<l, nor that lie aiiiici,
that the evidence was given in lli.^ ]irc.*ii
not he supported. J/ourt' v. .Jurrni' !)(i
In a conviction for non-]iayini nt nf t
general form prescribed hy ( '. s. (', ^. i
50, schedule I. (1) heing used : Held
was clearly not reijuisite to shew tiuit ile
was summoned or heanl, or aiiyeviilenn
Rr</uiii v. CiiUtii; .30 (^ B. 247.
I'nder the statute for reprcssjuj; lintg
tions, no power is given to niagi.-.tiatfstii
summarily : the otl'cnilers must lie tri
jury. Fmjin'iiii v. AiIihha tt •il.
The name of the inforniant
must in some form or other
•"' '.". H.
!'!• CI nil]
, ,, 'I'l'i^ar 1,11 1
ot .". conviction. liiriJliiiin'iiiitnl, si
• — (,>. S. -McKenzie.
A conviction by two justiees furtakiiiji
timber felimiously m- uiilawfiillv, He
for it should not have hei :i in tlm iiltei
if the taking was unlaw ful mily, imt f^
it should ha-'o shewn how unlnHful . .,
that the olt'ence came umler snim. statiit
gave the justices power to cuiivict Iti
Cnilij, 21 Q. B. 552.
^Vherc a statute empowers twn jus
convict, a conviction by one is vniil Im
1 L. .J. N. S. .302. ~C. L. Chaiiih.-A.
See also (Irnlinin v. MrA rl/im; 2,') (^, K. ^
The charge in a convictiini niiist be
and So stated as to be )ilcad;ilile in tjiei
a second prosecution for the same eli'tiice
V. 1 1 o, II 10 III, ,30 (^ B. 152.
A conviction for keeping a linu-e iif
on the 11th of October, and mi otlar il
times before that day :[|eM, siiilicic
tain as to the time. The iiifdniKitinn ,ii
the parties as of the township ni \-,i,i
and had "County of Ont.uio" in tiii' in;
charged that they kept a Imiise iif ill i
did not expres.sly allege that tliiv iliil -
townshiji or county. Tlii> eviiKiKu,
shewed that their place, at wliiili sir
was kept, was in Kast W'liitliy, in w
justices had jurisdiction ; HiM, miIIJi
certiorari to remove tlu' cimvirtimiMiiS
refused. liiijhin v. Williniiis il til,, ,'J7(^i,
— A. Wilson, sitting in vacatiuii.
(b) /// I'lirth-iiliir Cu.
The court refused to grant a iiwiiil;
compel two justices of the ]ieai'r to issm
tion upon a conviction under i; Will. IV.
2, for selling spirituous liiiums witlimit
the c(uiviction having been finiiulL
written statements of the iiu'onmr, ;uii
of one other witness ; there hcii'!.';i iliii:l'i
the statute, whiither the infiiinmtiuii m
also to he on oath, lii-ii'um v. Mdmr
S. (>29.
Semble, that a convictimi niiiler4W
c. 4, for an act against the piililic [iiMoe, ■
deprive the party injured of liis nj;lit t
remedy. Delomj v. Mr/hniiull, K. 'i.i
A magistrate, in order to h.ive a ;,'iii«l
cation under a conviction nml warraii!,
give in eviileuce a conviction not illtgal
"1
;?fii
CE.
191
JUSTICE OF THE PEACE.
1982
:hich (Iocs not oxpirss tliattlit pai
immmcd, nor tliat lie ;iiii]eartit, i
lence was givun in Ins iircstin'i'.'c
)rtc(l. Moiii-iv. .hn-i-mi, <J(^.[sj
•iotion for non-imynunt of toll,
I jirescribcil by ('. S. ('. c. lOlU
e 1. (1) beinj^ uscil ; IkM, thai
not reijuisitu to shew tliat ilettml
ucil or hoanl, or any uvi.luuct .iji'i
\uM<r, 30 (,». li. •247.
le statute for vqinssin;.' rints atel
iwer ia given to nla^i^tl■atl■stln■lllli[
: the otTunders must lie triu
f/i(N(.M V. A<l(iiii< 'i ,-/. .■ (^1. H. |(,j_|
10 of the infornuiut nr nmii.lain
jiu form or other uinifar (.ii tlit 1
tiim. /" '■' Jl'iiiii-':!'' "'.,S
iIcKenzie.
lotion by two justic-i.-; fdV taking wrl
louionsiy »r unlawfully, -iiJl,li_
iilil not have bei n in tlu! akdiiatiJ
;iiii' waH unlawful I inly, iKit iiliiuij
hiv'e shewn how unlawful ; auil i
iU'enee eanie under snuie statute »B
justiees |)()wer to eouvict. H'^i
a statute empowers twn jiistiieJ
I eonvietion by one is veiil. In ivf|
s. S. 30'_'.— C. h. Chauih.^A. WiL
Jrahitiii v. .V'.l rlh'n; 'J,') (J. R i]i^
liargc in a eonvictiim UMistlictert
,atecl as to be iileaihilile in tliti-vtl
proseeution for the same ell'ciite. Ri
,r,l, 30 Q. H. l'>-.
ivietiou for keepin;.; a Iwrn-c u{ iU-l
llth of Oetober, an.l on etkr daysl
fore that day : Held, siitrRimtlyl
the time. 'Vhe infiirMiiitimi ilwctT
ies as of the township et Ka,-t Wlii)
County of (IntariH" iu tlu' ma™
that they kept a house .if ill faiiieJ
expressly allege that tiny ilnl »ml
) or eounty. 'I'he evidciKv, M
that their plaee, :\t whkh siuli 1
was iu Hast \N liitliy, in wm
had jurisdietion ■. IlrM, sutfeutj
to remove the eonvirtienwi^stkn
Uiijiiiii V. ]yiirniiii--< 1 1 "1; liT'.'.B.!
ilson', sitting in vaeatiun.
(b) III Piirt'"'ii'iir fi"
rt refused to grant a \\a\v\m^
two justieesof the pea.r tn is^no
m a eonvietion under ii Will. \\.
lling spirituous liiiuers witli^iit iic|
.-ietion having been fenii.k/i in-
statements of the infonmT, Mill tiisl
ther witness ; there heU'ga d^rn
ute, whether the infoiniati..i. >*,
be.m oath. y^;/;m' v. .l/.''*".j
le, that a convictiou miiler4\Vi
' an aet against tlu; I'u I ;1k'1'«*'
the party injured ot his ngt to
JMoiiij V. Ak Doll mil, r- ' -
,Lristr.atc, in order to hayca-'-li
under a eonvietion i'>"l «■''"" J
evidenee a conviction not ilUgH «■
,,i it, .ami :. warrant of distress supported i A eonvietion under C. S. T'^. f. c. 49, s. 95,
fvti.mvietiou, and not on the face of it an [ stathig that defendant M'ilfully ])a»se<l a gate
warrant. EuMmnii v. lichl, (j Q. ' ' ' "
B.
ana
witliout paying, and refusim^'to pay toll : Held,
good. QuaTe, whether it would be siitiieient to
allege only that he wilfully ]iassed without lay-
ing, without ill any way shewing a demand.
Itii/iim V. Caislir, 30 (,). li. IMT.
t eomniitted an injury to the I Held, also, that th'' nou-exenipti(Ui of defeu-
lattels of the said \{." did not ' daiit, if essential to be alleged, was sulliL-iently
tli.at a magistrate's conviction " for wil-
,l;ui:agi»i-'' spoiling, taking, and carrying
fijx liuslielsof .apples of the said H., wliere-
Itiie ilfl>--i"
itiiwanaiit whi<'h reeiteil " tiiat whereas'
was ;,'iven against Iv , of, i!i;e., in !i suit !
r, Kastmaii, for a misdeineanonr in '
lies by foree and violenee oil' and from '
s,s iif the siiid It., i^c., these an; there- i
thefize, i^e. ;" and also that neither'
•ant contained n
lieli such eonvie-
Fif'.i
liti'-'er'
IpUll'
iiuieri'.e, i\
.viivictidii nor the v\ar
i„,»' "/' "" ';//''"'•'' for w
inmU take place, lb.
(iii.itiiin to i|uash a convieti<in by two jus-
thc ciiuiity of Xorfolk for an assault -
That stating the otl'eiiee to have been
mittiilat ilet'eadaut's plaee in the township
■owusenil \v:us sullieieiit, for ('. S. U. ('. e. 3, :
ls\ili-5. .')7, =ili*-'\^s that township tube within
fiiuty. Ui'/iiKi V. Sliiui; 23 <^ Ji. (il(!.
..nvietion for assault it was held un-
Ijyrv til .siiew on the face of the eonvietion
Liiililaiurtiit prayed the magistratt's to pro-
1 Mi'.iiw:iriiy, for the form allowed by C S.
llo;). s. 50, was followed ; and if there was
fciii I'niiiest, and therefore no jurisdiction, it
hive been shewn by alliilavit : -Held,
lthatitw:us clearly no objection that the
^tw,i!<' :.ged to b(! unlawful. I h. ,Scc
,. SKitZff it (i/., <l ].. .1. L'(;(i. - (J. S.
ttm'n; liii'jli'!' <i- t. v. CiirtU, X't I.'. 1".
Itere a statute empowers two justices to
ict.u'iinvietion by one is void. In ri> Crmr,
.X. S. ;!0-.'.~t'. L. Chamb. -A. Wilson.
Ujo'i'iii/i""' V. MrAiiliiir, 25 Q. B. 478.
kividiiin by a magistr.ite stated that de-
bt ili'l (111, &c., at &c., being a public higli-
lu.H' lilas[ilienious language, contrary to a!
jiiiliyl;r.\, wliieii was passed almost in the
iilV. S. U. ('. c. .")4, s. L\S2, siib-s. 4 ; but
I was no statement of the words used ;- -
Ikiii. Suiiilile, also, that there was nothing
Viiience set out giving the magistrate
mil to act. Ill )•< Ihmllii, '20 V. \\
stated in the conviction. /''.
Held, also, unnecessary to n inio any time for
liayment of tlie tine, as it would then lie payable
forthwith. I h.
:S, 0., for
the 24th
A conviction under 32 it 33 Vict. e. '.
that V. L. was, in the night time of
February, 1S70, a common prostitute, wandering
in the i)ublic streets of the city of Ottawa, and
not giving a s.atisfaetory account of herself, con-
trary to this statute : — Held, bad, for not shew-
ing sutrKiently that she was askeil, bebue or at
the time of being taken, to give an account of
herself, and did not do so satisfaet<irily. Jlnj'ma
v. Li-ntuiii,; .30 (,>. B. .")0!t.
Senible, jiroceedings having been taken under
29 & 30 Vict. c. 4."), I)., that the evidenee might
be h)okcd at ; and if so, it « as plainly iiisntli-
cient, in not shewing that the place in which she
was found was within tlie statute, or that sho
was a eonimon prostitute. ///.
On a motion to act aside a c(uiviction ami war-
rant of commitinent on the gronmls, I. 'i hat tlio
conviction was not in the magistrate's olliec, but
in that of the clerk of the pi'ace ; 2. That the
conviction did not contain a clause of ilistress :
and 3. That the eonvietion only warranted the
iuipriaonmciit without li.ird labour, whereas the
pris(Uier had been committed with hard labcmr :
Held, that the jirisimer must be discharged,
but on the last grouml onlv. It'ijiiin v. Yitniiims,
() 1'. K. (it!.— ('. L. Chamb. .Morris<i!i.
See ni'ijina v. Muiin,, 24 Q. B. 44. p. 1991.
2. (Jliil-'li'i):(J.
(a) I'nii-tli-c.
Defendant, in a iiriv.ite carriage, refused to
4iay toll, on the ground that he was in uniform,
and adjutant of the military train, and theivfore
exemiit : Held, that the eonvietion could not
i be (luashcd on the ground of his being on duty,
Mvirtien, purp(Uting to be under C. S. ^j, the exemption hail not been claimed on that
I s. is, ('liargingthatilefendant, at a time | account. Jf<ijiii<i v. l)iiir,.-<, •_>•_> (,), B. 333.
In nanii'il, wilfully and maliciously took i
.ivriiM away the window sashes out of a i '^>» application to <piash a eimviction, as soon
wiieil i.y one C., against the form of j '"»» *''*-' ''eturn to the certiorari has been tiled the
itiiu>,&c., w'ithout alleging damage to any ' ^""'st" '« "> this court, and the motion paper and
rt\, rial or |ier.sonal, and without lindiii
II any aiiimiut, was Held bad, and
lt''j'ii'i V. C(i.-<,nll, 20 C. P. 27").
Iiiiit neiessaiy, in a conviction for selling
pitliiml a license, to mention the statute
I'hii'h the conviction tfHik jilace, mu' tiiat
' ajuiear on the face of the conviction
leiiniswiitioii coininenced within tweniy
pf thu ceiniiiiasion of the oH'eiice, nor to
hhat it is a first <ir second offence, nor to
|tht li(|uiir was sold; neither is it illegal
iiuiiriaiiiuiient in default of distress,
i':/iii(i V. SlraclHDi, 20 C. P. 182. See
li'lv. ilcWItiimii; 27 Q. B. 289.
rule nisi must be entitled in the cause. Where
the rule was not so entitled it was discharged,
but, being on a technical objection, without
costs ; and under the circumstances an amend-
ment was not allowed. Ji'd/iiiii v. Mtit'tiiii, 27
g. B. 132.
( )n ap]dications to (juash, the c(mvicting jus-
tice must be made a jiarty to the rule. Ii<'<jina
V. Law ct <tl., 27 Q. B. 2t)0.
The court will not (luasli a conviction upon th
weight or upon a coiiflict of evidence, but there
must be reasonable evidence to support it, such
as would be suHicient to go to the jury upon a
trial. The extreme severity of the tine, under
1983
JUSTICE OF THE TEACE.
the circumstances <if the cnso, remarked upon.
Jfi'i/init V. Ifiiinirth, 33 (). H. o37.
It is not the ]iractice to give costs in (juashing
a conviction. Jtiijiim v. Jolmntou, 38 (}, 1!. o-t'J.
(1)) (Hhn- ('a.-i<x.
A conviction shcnihl he (juashed where tliere
was no juri.sdiction. ]{i<j. v. Tiiylnr, 8 Q. B. 'l"i .
To jirove tlie iiuasiiiiig of a conviction l)y the
Court of (Jiieen's licnch a rule of court was juit
in, ill which the otlcnce, the name of the com-
plainant, and of tile maj,'istrate, were mentioned :
-Held, sulHcieiit. without further identifying
the conviction nientioued in tlie rule with that
on which the warrant i.ssued, for the court would
not presuine another conviction similar in all
these res])ects. liro^i v. J/iihi'i; 1;") i). 15. (i25.
To prove the (jUivshing of a conviction on ap-
peal to the Quarter Se-^siona, it iis sullicient to
prove an order of tliat court din.'cting that the
conviction shall he <juaslicd, the conviction itself
being in evidciu'c, and the connection between
it and the onler shewn. It is not necessary to
make up a formal reconl, for the statute ('. S.
U. 0. c. 114, enables the Court of (,)uarter Ses-
sions to dispose of the conviction liy order. |
Xeill V. McMi/liiiK •_>,-) l). n. 48.-). I
A certiorari issued on I'Jth April, 1872, on
motion of defeiiilaiit, to a police magistrate, to
I'eturn a conviction (or selling lii|Uor without i
license. I'hiswrit was returned on -1st .May,
in Kaster Term, M'itli conviction .and recogniz- |
ance, and botir dc'feiidants appeared to it liy I
taking out rules. Tlie jirosecutor then obtained '
a rule nisi to (piasb the certiorari and for a pro- !
oedendo to the jiolice m.agistrate. Hut up to j
this time there had been no motion to (]uash the ,
conviction. It was urged by defendant that he j
had all the toriii within which to move .against [
the conviction, and that as the proceedings were
removed into the ((•uecn's licnch they must be
tinally dealt witli there : -Held, I. That the
proper jiractice is, that an aiipeaiMiiee to the
certi<prari should lie tiled in the crown ottiee, and
the case set down on the paper, so that either
party might move for a coucilium ; 2. That the
defendant Wius in default in not having moved to
quash the conviction, or set down the case on ;
paper. Semble, that an allirmaiice of the con- ,
victioii by the prosecutor is necessary to obtain ,
the costs, and further, as this was not done,
the c(mrt decliiic;d to estreat tile recognizance.
A procedeiulo was awarded, it being thought
more advisable that the police nitigistrate should
enforce the conviction than the court above.
Jfi'>ll)iii V. Ftaiiiihiini, !) L. .(. X. S. 2.37. -P. C.
— A. Wilson.
A conviction which has never been valid, need
not be (jnashed before action for anything done
under it, for it is in 1 iw no conviction. J/aarLr
V. Ail<iiii!'o,i, 14 C. I'. 201.
Held, following the last case, that an order or
conviction not under seal ncetl not be (juashed
before action brought, for anything done under
it. MrDimiilil v. Slurb ij, 31 (l B. r)77.
But ft conviction made by one magistrate, in a
matter in which jurisdiction was given to two
only, must be (plashed, though wholly void.
Graham v. Mt Arthur, 25 Q. B. 478.
The pl.aintifT produceil a warr.anti.vsuMlf,
arrest for not tinding sureties U,r th,. ,|,.J
jiursuance of an order to tliat iiliVit r'.t^it
the warrant : - Held, that sinli wnnuit
prima facie evidence of the onler •—|(,|
that under C. S. L^ C. c. I2r>, s.';{ „„'
would lie against the magistr.itu f„r mut
done under the order or uiicler tli(,Mi;,r'mr
lirocuro the a]i)iearance of the a'.rusn|, imtj
same was ipiashed. .V/"'""7 v I „/,,■.
P. 152.
See Til ir Jniiw, 10 Q. I',, lit;, i, |i).|> .
v. Jloldni, 13 L. ,J. 1(1, p. •j;)()l. '
3. Olliry (■„,,.■.:
A conviction, substantially (l.'fcrtiv,' ,■
be aiueniled. /I'ci/iiKi v. J'u.^^■, 11. '|', ;( \'i,.t
Semble, that a conviction ivtunu'il 1111,1
statute to the (,)uarter Sessions ainl lik,ll,v
clerk of the peace, becomes a rucorij
court, and maybe proved by a rcrtjii,! ^
(Irahdiii V. McArlliiir, 'I'l i^. 11. -17^.
V. Acl'IO.Nti I'OU -NOT 111; II I!
MNli CiNVii no
Justices before whom a cniiviitinii
are not jointly liable, umlrr 4 \- ."1 Virt,
not returning the same. ,\ ilfclantinri ,hir|
that the return w;h not niailc tu tlie next
(,»u:irter Sessions, is bail ; tlic statittu p
a return to the next eiisiiiiiL; j.'i'iut;i1 (j^ii
Sessions. Mi ten If q. t. v. AV- (•< ii ul
2()3.
The defendant, with two oIIk]- justi
victed one I). .S. of having refused tu ^iiv
returning oliicer at an election, aiul liin.l
.*'20. It was alterwanls iliscoviivd tint this
not the first election for the wai-il, aiul t'iir,
that the conviction was illcj.'al. Tlio ("nvit
was not returned to the next (.liiartii S.s*!,
and tlicreui)on, though after tlie letmii in
this action was lirouKiit for the piii;iit\ iwai
by 4 & .■) Vict. c. 12: licM, ,.ii im'.h ■,
nonsuit, that the illegality of tlie cniivi. n-iii
no defence ; but that if on tint iiei-.mat
line had not been leviel, a ii'tnni sii'
been made explaining the cii-ciiiiist.uurs: liiii
whether the declaration «oiiM imt hivi b
bad on motion in arrest of iinlL'iiinit fiiil;
ing the oU'eiice to be that tlie ik'fi'inii'it
not make return to the next eiisiiiiii; (iiit
(ieiieral (jhtarter Sessions, iiiste:lil nf ;ii: in
cliate return as the statute re(|iiires. (,)ii,i iv,
whtither the court, if promptly aiiiilinl t'. w
have stayed the proceediii;.'s, the mtiiiii I:
brought after the defendant had rrtiiiin'l
conviction. <)' l{<illi/ <[. t. v. Aliaii, lll.i.H.
Declaration, tint on, ite., an intuniritMi
oath was laid before M., .1. I'., aiiiiinl
.!., for having within six iiiunlli.< suM sp
uous lii|iio:'s to persons tlieivin iiaiiieil. iniil
to the statute ; that said M. sinmiiiiiK''l tin-
J., who a|)peared hefoiv saiil .M., ileii'inliiit,
other named justices ; and that .-^.lid just
having jurisdiction in the inviiiises, i. mvi
him of said oHence, wliercupni it liecMi.iil
duty to return such coiivii tioii to tlm tiaiii
ensuing general (Quarter Sessions nf tho in K
and for, Ac. ; yet defendant did imt iiiU.i!
return:— Hold, that proof of an i)tl'i,'iii.v ya
fV
:)E.
JUSTICE OF THE PKACE.
1986
K proiluccd a warrant iNsiuilf.J
liiidiii},' Hiirutics fur the ^„,^,,
ill! nnlur to tliat all'tit r rita
: - Hi'lil, tint su''li «iui„,t
viduiicc i)f tlif nnltT: -11,14
.:. S. U. ('. c. I'Jtl, s. ;i, „„;i5,
;iiii8t the magistrati' fur mivtli
;lio (iriler or uinli'i- tlie w ,
l)))i'ar;iiici; of tin.' .•I'ji'iisi'.l,
i.shud. Sjiniii'j V, .1 /,/,,„
I,,;,;; 1!)Q. 15. I'.IT, p. l!iii:i..;J
1 ].. J. 1(1, II. -JIIOI.
3. Oiler ('iiM.i.
oil, siil)stliiti-illy il''fcctiv,. I'liig
lliijiiiK V. //'«.-■. 11. T. ;j Vi,.t.
at a coiiviotiou ix'tiiria'd iin,itr I
a (^)uai-tcr Scj.s.sidus iuul lilolliy)
: poacu, liu'i'omos a reiMnl
riy hu [irovoil liy a i-crtiii^! in
Ic A rill hi; •!') (,». \\. -ITS.
Kou Ni)i' Kr.riiiMSi; Cunvh no!
ofore Mhoiii a ci'iivirtiMii i; mM
ly lialilo, iiii(U'i-4.\: ."i Vi,t, r. I'jJ
l; till' ^iaiiit'. A (lrrl:ir:itiiiii I'hiri
rii wa-f not niailc tn tliciifxtriisa
<ioiin, is had : tlu' st:itiitc r juij
the next oiisuiiis,' ;.'cmT:il i.Wal
litnilf i[. t. V. A'cMV ,? ,i/,, |i QI
idaiit, witli t\V(i ntliir j^l^tia■^,
). S. of having rffusoil tn sirvd
liL'or at an (.'Ifctinii, ainl lin.jil 1
i altcM'wards iliscuviivil tlrittliisi
[uloi'tioii for the ward, aiul tVivlj
viction was illegal. Tlic I'niivicr
riiod to the iR'Xt (.'iinrtiT S.ssioi
on, though after tlio rctiiiii uu|
[a« hl'ouu'llt for the \irli;ilt} :iWiiH
lift. c. 12 : Hold, (111 iii.'ti.i:i it
tho illegality of tin: cnuvi.tiniif
hut that if on tlivt :ic iiit !
lii'eu li'vii'l, a ri'tnni sli.i;iM
mlaiiiing the fircnnist.nn'os: ()u
' 'elaratioii «oald ii"t Irivo
In in arri'-st of juilgiiifiit firrli^
lice to ho that the defcmiint '
Iturn to the next eiisiiiiii; ''init^
•ter Sessions, insteail of aw M
Is the statute rei|\iii\M. (.Hm iv. a,
Vourt, if iirouiiitlyaiiplicil !''.«■«
Uhe lU'oeeedilIgs, the artii'll 1*
I- tlie defendant had retiiviu'lj
riyViiii/n. t. V. .1//"", in.t-H.i'
tint on, i\:o., an int.ininti^iii
il hefore M., ■!. 1'-, auiiintl
within six uMutli.-i soM sM
C ]iersoiis therein iiaiiicil, rmity
1; that said M. sumnniiie'l tlu'l
reil hehir.t said M., deleiMiiiit,
justices ; and that .^ai.l justil
iction in the luvniises, enivi^
llenee, wherenii m il hoi imct
sueh eoiivietiiiii to the tlaiil
il Quarter .Session.^ uf the \K\i
|yct ilefelidalit iliil net nnkii,
, that iiroof <if an otl'oiRv .le'l
Uif of the municipality, and a conviction i upon a matter of fact in a i)enal action was final ;
micli hydaw, was not .sutlicicnt proof of 2. That altluuigh 1'
jsncii liy
fcjiMtiwi. S/iillinii' V. Willnii, I ('. r. 2;i().
tlint a justice is li.ihle, under the statute,
liflumte penalty of £20 for each conviction,
iharotiirn is not properly made to the
r assions ; and that an action for the
YiWiiuM lie, on proof of the conviction
jj,, iiiniosed, although no record thereof
Iwn maile hv the justice. Dmi'iiili (|. t. v.
/;,,sc.r. 487.
hilt ciinimittoil and line I the plaintiff
irrviiii! away some cordwood. After iio-
•aiiiit'id the prosecutor, finding that the
•ii'i w;is improper, wr'iit to the defendant,
,':,.«■ for him a notice of <liscontiiiuaiici',
WIS served on the person acting as attor-
the plaintitl", hefore the iiioi ting of the
(.ijirter Sessions. The defendant sent a
return to that 'ourt, iii'duding this and
ircmvietion, hi,t ran his pen through the
,;■ this eoiivietion, leaving the writing,
er. 'luite legihle, and wrote at the end of
This c.iae withdrawn hy the pliintilF :" -
H,\<iitiicieut return, within the 4 it "> Vict.
"r.iII>[. t. V. frii-'ir, 18 (^ H. KM).
[isri'to.imii. tain, action for not returning a '
feti'in, ilefendant jdoads another .action for |
luiie ouise, it is sullicieiit to prevent that i
lieiiiU a har to shew that it w,is not '
^t I.I recover
btettroiii heiiig ohliyed to pay it toothers;
In;- imt essential to shew cidliisidii hetween
teviliiit and the pi lintitl' in such action : -
l'.iiM.''iiirt heiiii; left to draw inferences as
I, that the evidence in this ease snppiu'ted
i.itiiiii that the first action was eoininenced
iJiiM mill covin. Kil/;/ ([. t. v. Cuirnn, 18
the statute re(|uires the return
to he made hy the convicting justices under their
hands, yet it was suHicient. (^tnere, (ler Dr.iiier,
(!. .1., whether the return came within the tenn
"immediate" under the statute. MrLi llmi i[. t.
V. Jtraini, 12 C. V. rA-2.
I
This action was similar to the last e ise, .uid wiw
I trieil on the same day, heing hronght .against M.,
1 one of tin/ justices, wdiowas the ])rincip il witness
i for the defence in the last ease. The ilefendant
i oifcred as eviilence the record of that action with
j the verdict endorsed thereon, thiMdiject heing to
I shew the return of the conviction hy himself,
and so indirectly to make him a witness in his
own hell ilf : Held, that the ]ieiialtv not heing a
I joint one hut several, each justice heing iniliviilu-
ally liahle, sueh evidence was immaterial, llidd,
also, that the transmission of the convietioii
itself is not siitticient, without a return thereof.
MrLniiiiin ip t. v. Mrhilnri', 12 C. 1'. 'Ail
The law as to the return of ciuivietions is
unehanged since the 4 k 5 Viet. e. 12, and a
conviction made hy an alderiiian in a city must
theiadore still h<! returned to the next eiisuinjj
general *,>uarter Sessions for the county, and not
to the It"corder's Court f(U' such eitv. Kc'iinlmn
<1. t. v. E:/I,.«,ii, 22 y. B. (i2().
Hold, in an action for not returning a convic-
ti(ni, no ohjection in arrest of judenient that the
the ))enalty, hut to prevent j declaration shewed no law under which defeii-
daiit could ccHivict f(n' the offence mentioned, or
that it charged him with not in ikhig a return
of the conviction and of the receipt and ajijilica-
tioii of the nioneys received under it, when if ho
had not received the money he would have only
to return the conviction. //*.
Held, no (d)jeetion to the declaration that the
jdaiiitilF sued for tli;; receiver geiieril, and not
for her majesty, inasniuidi as suing for a penalty
for the recjiver-gcneral, for the puhlic uses of
the )H'oviiiee, is in fact suing for the (^liieen.
Uesides, < '. S. U. ('. e. 121, autliori/es a jiarty to
. sue (pii t ua for the receiver-general. Held, also,
that the defi'iidant hiving actually ci>nvi(;ted and
iiniiosed a tine, eoiild not ohject that the decla-
' ration did not shew that he had jurisdietimi to
convict. Iiii',il<!i 4. t. v. Ciirtit, ITi (_'. 1'. .Slili.
A plaintiff suing a justice uinhn- ('. S. V. ('.
e. 121, s. 2, for the p-nalty of *S0 for not return-
ing a conviction, is entitled to full co.its without
i a ccrtiticate. Sliii.inii c|. t. v. dii'-i.i, 1 L. .1. \. S.
1!».-C. I-. Chamh. A. Wilson. Hut see /iraih
lij. t. V. Tii<i:i'irl, KiC. P. 4ir).
I Held, that a penal aeticui for not returning a
' conviction, ia founded on tort, and for that
reason cannot he hrought in a Division Court.
' Cormiil ,,. t. V. Tin/lir, 10 L. J. N. S. ;V20.--
iC.C— Klliot.
•.wliith«rtlie4 Hen. VII. e. 20, .applies
wik'ii jiiilgment has lieeii recovered in the
kpltvleil. The fact of ilefendant having
rid. ami the line therefore not having heen
, iiirms no excuse for not returning the
M; Imt, Seinhle, that if under such cir-
■■.s the justice retnrii.s the c inviction
Uitlimit the return prcscrihed hy the act,
|»)tU Hut he liahle. Jh.
Itiiaviotiiiii of '"■ ' iir iiinri' justices heing
Uinmiilid not relieve them from making
liMidiite return under 4 & o \'iet. e. 12.
lJi;;i|.t. V. lliirr.'ii, <) C. \\ iVJS.
mnltrtdr the payment of money under the
Iff iiiiil Servant Act, is not a conviction
kit '\i iieeesaarv to return to the sessions.
►yil.tv.yimM; 21 Q. 15. 370.
I tonvictioa w.is had hefore defendant and
IwitW justice, on the 2r)th of Seiitemher,
\ M. iiriiveil
a return, with the con vie
itself, maile hy hiir. for himself and on ■ C. S. V. C. c. 121, reipiirea justices, umler a
feiidaiit, on the (itii of Decemhcr, ; penalty, to return cotivicti(uis nnnle hy them to
Bihij;in'il hy him in defendant's name, the next ensuing general (^u.vrter Sessions. 2!>
« fur himself, the defendant having au- & .30 Viet. e. "lO, provides th.at it shall not ho
II aiiil rei|ueiited him to sign it. The ' necessary to make such return until the (j)uirter
TO it to the jury whether the return Sessions to which the party eompliining can
"lountiliate," ivs itMpiired by the statute, | appeal. 32 Viet. c. (>, (the Law Heform Act of
"titm that the word shouhl he construed • 18(58) enacts that the sessions shall he h(d<l only
»ithia a rciisoiiahle time ; and they ' twice a year, and that such returns shall bo
i«f ikfeiuLaut ; -Held, 1. That the fact '■ ni.uleto the clerk of the peace, ijuarterly, (Ui or
H™.v left to the jury, and their decision hefore the second Tuesday in March, .lune, Sep-
1987
JUSTIClp] OF THE PEACE.
II
PP" I'll
jiTfe I'll
If" f-
I
'i
[
' K
I,
r| i; J "
I, '
teiiiber, ami Decenilier, in eai'h year, and shall
eiii1)racu all uonvictiiuiH not onibriiccd in sonic
previons returnw. This act came into force on
the 1st of Kehruarv, 18()!), and makes no men-
tion of til.) •_'!) & SO Vict. e. 50. Tlic plaintitl'
in his deehiration cliar^'ed defendant witii not
returning convictions made in Decenilier, 18(iS,
and .lannary, I.S(!!), to the clerk of the peace
before the sjcoiul Tuesday in Miirch following :
— Held, insuilicieiit, for when the convictions
were made it vas defendant's duty to return
them to the (^)uaiter Sessions, •which for all that
aiiiieari'd he might have done ; and it slmuhl
have hccii averred that he did not so return
them before the l.st of February, 18(!!l, or after
that day to the clerk of the peace, (^uiere, as
to the eft'cct of tlie last act upon the "i!) it ItO
Vict. c. .TO. Ollunlii t. v. Oirms, 2<) Q. H. 'il').
Tietiirns of convictions and lines for criminal
ofl'eiici.'s bdiig goveined by the Dominion statute
'M k X\ A'ict. e. 31. s. 7<i, and not by the Law
Keforni .Act of IHCiS, are only reiiuire<l to be
made semiannually to the general sessions of
the peace. Cli-niois q. t. v. Jii-nia; 7 L. J. N.
S. I-.'«. C ('.-- Huglie.«.
Declaration, that defendant and W. ("., then
being two justices of the j)eace for, itc. , on the
30th December. 1872, convicted the plaintitt' and
J. & 1 >. of an ottence of which they stood charged
by E. ('., aiul ail judged each of them for the
said olleiice to pay ?i>l, to be paid and applied
according to law and costs ; and tluTcupon it
liecaine the duty of defendant and \V. C. as
such justices, to make a joint return in writing
of the said conviction, to the clerk of the peace
for, &e. , on or before the "ind Tues<lay in March,
]87.'5, ;iccoriling to the form of the statute in such
case made and provided, yet they did not, nor
did either of them, as liy the saiil statute in that
liehalf reiiuired, make any leturii of the said
conviction to the said clerk of the peace, on,
Ike, "contrary to the said statute," whereby
and " by force of the statute in that behalf,"
the defendant forfeited ?80, and an action has
accrued to the plaintiiT, who sues for the same
"under the said statute," to demand and have
from the defendant the sum of .§80 ; Held, on
demurrer, cleclaration b.ad ; for it shouhl have
alleged defendant's neglect to have l)een contrary
to the statute. , not merely the statute, thert:
being two statutes upon the subject, each re-
(piiring a different return : — Held, also, that the
plaintiff niiglit sue for himself only, and need
not sue (pii tani : — Held, also, that an action
would lie agaiiist each magistrate for the penalty,
for though in form in debt, the action was in
fact ex delicto, (^ua're, there being now some
offences under the jurisdiction of the Dominion,
and some under that of Ontario, and a different
return re(|uired, and a «lifferent penalty imposed,
as reganls each class, whetlier the declaration
should not state the nature of the otrenee, and
that it was within the magistrate's jurisdiction,
though formerly this was not requisite. Drake
q, t. v. Pn.*tvn, 34 Q. K 'ITu.
Held, that justices of the peace must now re-
turn all convictions niaile by them to the clerk
of the jieace, on or before the second Tuesday
in Marcli, June, September, and December, re-
spectively, following the dute of the conviction,
llie several statutes on the subject referred to,
CormiU (j[. t. V. Taylor, 23 C. P. (507.
Held, that the neglect of ^ justi,.,. m
peace to return ccnivictions iiiaiK' \,y i,!, '
scribed, renders him lialilc uii.hr h',',V"w\
c. 31, D., as well as under thv ('. S. [' |
to a separate penalty for cadi cctivi.ti,,,,!
returned, and not merely to nuc iicuaJtv' I
making a general retiini nf siidi t„i",v;,.
The various statutes on thi' .«uiiiu(.t i^,,,
Darrajh (j. t. v. 1'atrr.inii, 2.") ('. \\ ,v_h)
VI. ('ommii\ii:nts.
1. ]'a!ii!ifii, Fnriii, mul li,i^,i;/,i,^ ,
Omitting to state the couvictiiiiiiif a.li
in Ins warrant ot comiintiiunt will |,,,.
a justice to an action fm- t;ilsf iiniin-
]irovidcd the actual coiiviitimi is
liis defence. Wlntaii v. Stt
" -. Tay. •J4,-,,
' \\'here, in trespass for false iinpri.^'ni,
defendant justitied nndii- a warrant fr.iinl
j ))resideiit and board of \»i\\yv at ('dlmnr-
' the (.'oboiirg Tolice .\ct, tcirtiic iiniiinrrf,^
1 of statute I'lliour by the )ilainfitl'. tlir \\\-xi^
I was held bad because the jil.iiiititl' w;i, jiij
I oned after part of the thio liad liuuii iiaiil
the warrant to imprison bciii;; fur an al^
i time, without any reference tu tliu carlitr]
j nient of line anil costs, wa.s ilkgal aul
j Triifi rxuii v. liuurd ul I'dl'i,-, ,,f Cilmnri
t S. 40.').
":/,
i Under ( '. S. V. ('. c. ,'),'), s. Nti, a wamntl
! issue to impri.><on a ]iits(im fur luiii-iiavmeT
! statute labour tax. without lirst siininn,'
j to answer or making a ciiiivietimi. 1
necessary, under ('. S. V. ('. o. 12(1, tunti
such warrant before an artimi can Ik^ lir
against the justice. The puint ihvM
new, the court dischirgcil witlidiit nifts
nisi obtained to quash the CMnviiticin
v. ^fl>rri■^<, 21 (,». B. .•{<»2.
Where a jierson was brnn;.'lit hefdrcai
tr.ate on a charge of a tlirciteiicil ass^aiilt
was ordered by the magistivitv tn timl surctl
keep the i)eace, which imt liciiii,' imnnilj
able to do, he remained in tlie i.iist«lyiifii(
constable for three Imurs, iluriiigHliii.li t;i
magistrate frequently visituil iiiiii tna-vxrl
' he had found bail, and at iiicht, ii^t
found bail, he was takm to gaul, wlun-
! niained until the folluwing iiiiiniing. oliei
I was discharged on bail lnjiiij: proiiim!
j that the order for coniiiiitiiiciit was{;i««hT(
I being in writing, and that tiie niagistntJ
i therefore not liable to tre.sjia.ss. Lwlm \\{
i (> o. S. Tm\.
1 When a magistrate allnws ,a ]iri.''(iikT t"
without examining into the ciiarL'w apiiiitl
with a direction to appear next iiiiiniiiigi
police office ; and in the imMiitiiiii',
ground that he was .issaiilt'il hy tin; ]
when in custody before him, gives a vi'rWj
to a c(mstable to aii]irelicnil liiiii, ami tifa
to the station house or ganl, s'ali iniiiri.<iij
is illegal, and the magistrate lanimt jiisti
arrest. Poirdl v. U'ilHiiiKKdii, \ y. B. 1
Under the Summary I'uiiishnuiit .Vt i
trates cannot issue tiieir warrant to
absolutely for so many days, luitiiiilytoim
for so many days unless the line anil
sooner paid. F<ri/i(Min\: .l(/(i»ijitN'.,5l
194.
E.
\i
JUSTICE OF THE PEACE.
1990
the neglect of a justiic „\l
11 convictions ui^'l.' liy liimnj
;rs him liatilc iiii4;r HiiVn^
ell iis imtloi- th" I '. S. t'. c. ^. j
; penalty Un- lucIi (.•mivii.ti„ii|
not merely tn our iwiialty fi,r|
iieral return nf siuli oiuviitil
itatutes (in tlw sulijwt ruviiJ
V. Pith- 1:^011, -J.". ( '. r. oil).
VI. ('oMMirMIATS.
lUiij, Fariii, iiii'i /,'.'/»;.«;/ , ,.|-
II state the I'nnvictiiiii of adtiim
lit of eonniiitiMfiit will ii,,t -h^
an action tor i-.Asr iiiiiii-i.nnn
J actual convirtimi is iir.\./n
W/lllllll V. Sti r,i:.-, 'I'ay. •J4;,
1 trcsiiass for falsu imjirijuiin
ustitieil nniler a warrant fn.ml
il hoard <pf [Milicc at CdlHpiir;;, 1
Police Act, fortlir iiHii-iitrini
Kiur liy the iilaintitV, the ia>titia
\i\ liecaUHc tlic )ilaiiititl' wa- ...
art of tlu^ tine liail )iirii \k,H;
to imprison hcing for an al,
ut any reference to tlic carliirj
10 anil costs, was illegal aii .
■. Buiiril oj I'ulki <;,'' CJiMiij,
S. U. ('. e. .">."), s. 8(i, a wamnti
iprison a piTsou fur iifm-.]i;\y!iie
mv t.ax, witlmut lirst siiimiiH;,;ii|
(ir making a convictinn. it
uiderC. S. U. ('. c. t-.'d, toHt
,nt hefore an actiim can lulv
justice. Tlie piiint ik'ciilnl
urt (lischargeil witlnmt cnstsi
il to (|uash the coiivictiiiii.
,M q. B. :w.'.
)icrson was Imm^'ht IwfnrcaT
charge of a thrciteiieil A*.<:a\t,
hy the niagistratc tnliml Mirtti
leacc, whicli not hciiig inmiflij
le vciiiaiiied in the ciist«iy"t ap
r tliree hours, iluriiigwlnilitim
|ticc|Uently visited liiiii t" a.sctr1
nd hail, " and at iiiclit, nut '^
he was taUi n to gacil. wlurv 1
til the following innrning. «lie|
[la.d on hail heiiig iircciirol ■.
ler forcoininitiiiciit wasg.«"Un
jiting, and that tlie magistral
lit liahle to trespass. Lw'l' « v. 1
liagistrate .-dlows a iirisimtT h<
Iniining into the cliargus ^timi
Ition to appear next ninnmit'i
; and in the nieantinu'. m
.„ he wa.s assault-d hy the 1*
Itody hefore him, gives a verU'dJ
lie to a]>prehend him, ami t.iB"
111 house or gaol, smcIi imiinsl
Id the magistrate eanin't just^
Irrllv. ir;//-'" "'«.», IQ-B. 1»
L Summary Vuiiishnicnt .\ct I
lot issue tiicir warrant to iH
lirso mauvdays, liutiinlytMiJ
days unless the tine an- M
Fd-ijusvH V. Atliiiiinta!;'
i,i,,(, whore a m.igistrate has, under the
J- Punishment Act, committed a party
U'ltionally w lien it should have heeii con-
iluiiiiii 1'''* ""'' l"*}''"y "■ 'i'"^' <-'•*" ^'i** '^''"■'
yj^j jiistitieation to tlio gaoler. //'.
L^qjtrate, justifying under a conviction
Inrraiit, must prove a conviction not illegal
KlKC mill a warrant of distress supfiorted
,311,1 not <in the face of it, illegal : Held,
„ that a conviction " for wilfully clani-
C i]<iiling, and carrying away six bushels of
tj 1! tiie' said H.'s," dill not sujiiiort a war-
Tsjiili recited "that wherea.s jiKlgment was
laijiiiiiit K., i'fi '^e'., in a suit, R. 1: ]•]., for
Iciiitaiioiir, in taking apples hy force and
„ iitf and from the premises of the said
III ; these arc therefore to authorize, &e. ;"
that luilher the ciphviction nor the
ttstateilau otleiice for which such a con-
k,a i-.iiiM take place. KhMiikui v. Hi hi, (J
II.
kiiuraiit of comniitment for an iiidelinite
(iirwhie'li directs the prisoner to he kept in
jit till the costs are paid, without stating
lirjimit, is had. JJciirnun v. Fidtici; 7 Q.
ere, 111
a comniitment for want of finding
tri liT the peace, is it necessary to state
kit justice had information on oath which
1 justify him in hiiiding the prisoner to
ktk iitace. /''.
Bi'ilc, this would not he necessary in respect
liruitsciininiitting prisoners upon charges
oiiminittcd. II).
Iisrant of coiiimitment recited that M.
Jiiara-il iin the oath of W,, " for that he,
liss this day charged with enlisting men for
Ifel States army, ofFering them ><l]'tO each
khIv." without charging any oll'eiice with
Btv, without stating th.at the men enlisted
Idjats uf her majesty, and without shew-
,;\V. was unauthorized by license of her
tevt" enlist, was held bad. /n re Miir/in,
[j. 13(1. C L. Chamb.— J. Wilson.
Bi. 1. That to charge a prisoner in a war-
.I'liiimtment issued under ;V.) (leo. TIT.
Irtli atteiiipting or endeavouring to hire,
lengatv, nr jirev.ail on to enlist, a soldier
Ifknil "!• sea service, for or uinh^r or in aid
liktiim Lincoln, President of the United
oi America, and in the service of the
1 States (if .-Vnierica," is sntticicntly cer-
;i that the foreign power was sntticiently
liinthe w'.rrant, and one whose existence
limrt is Inmnd judicially to notice, viz. :
I Iteiileiit of the I'nited States of Anier-
klie Vi.rds relating to the Federal States
Jtejixtt'il as surplusage ; 3. that in such a
Bt it is umieecssary to allege that the ae-
jiBaBritishsuhject, the law presuming him
pdi till the contrary appears ; 4. that it
^untcessary in the warrant to negative
fnuii her majesty to do the act
Ittctsodiiiiilaiiied of ; 0. that the direction
VsKltrtdkeep the prisoner in the common
rmil he shall thence he disohargeil by due
[I si law, (ir good and sufficient sureties he
i for his appearance, "&c., was sufficient,
terwdrds heiug read as surplusage; (i.
ri. in the text of the warrant, might he
li'laiull," soas to read " Given under
my and my" hand and seal, &c., it being pre-
sumed that both magistrates used one and the
same seal. /// iv Sni'tth, 10 h. ,J. •_>47. C. L.
Chanib.— J. Wilson.
Held, that a warrant reciting a coroner's iiKpii-
sitioii, and stating the oll'iiue as foUow.s : that
('. "stands charged with having inllicled blows
on the body of the said F.," and not shewing
the place where the blows, it' any, were inllictiMl,
or the offence, if aiiv, was coniniittcd. is bad.
Ill i;-(',iriiiirliiii/, 10 L. .1. :{■_'.■). -t'. I,. Chanil).
I)ra[ier, .Nbiriisoii.
A warrant of eonimitmcnt under the foreign
FnlistiiK^nt .Act, ."jiMJeo. III. c. tlK, s. 4, reciting
that T. K. ('. "was this d.iy charged" (not s.ay-
ing niion oath) "before us," and without shewing
any examinatioii by the niagistiMtcs, upon oitli
or otherwise, into the nature of the olVeiicc, and
conimanding the constables or jieace ollici'rs of
the county of Well.ind to take the s;ud '!'. K. ('.
into custixly : ^Hcld, siillii:ient. /» ri (.'liirkc,
10 L. J. 3.31.— C. J.. Chanib. .1. Wilson.
A warrant of comniitment under the statute,
committing the iirisoner until "discharged by
due course of law, ' snlllci;i!tly coinplie.s with the
statute, which provides for a eomndttal until
delivered by due course of law. ///,
A warrant of commitniciit executed by two
parties, and eoncliiding, "given under our hand
and seal :" — Held, suttieicnt. //>.
Held, that a warrant of couiniitnicnt 111 which
it was charged that the luisoiier, on the liOth
.June, 18()4, "and on divers other days and
times," at the city of Kingston, did unlawfully
attempt to persuade one II., a soldier in her
majesty's service, to desert, wa.s bad, for it was
impossible to say upon reading the warrant how
many otl'cnces he had coinniitti'il. or how the
pnnisliment was awanled. //; /v MiHimun, 1 L.
.). ^\ S. 1.-). -f. L. Chamb. .J. Wilson.
The warrant of a magistrate to arrest, issued
in the first instance, is only prima facie, not con-
clusive eviileiiee of its contents ; as, for instance,
of an information on oath and in writing having
been laid before him. Frhl v. Firifiinni, !."> (,'.
F. 584. See .V/(n/»7 V. Aii'l'-isnii, •h\V. F. 152,
p. I'.t84.
The prisoner was convicted by the police
magistrate for the city of Toronto, for that she
"did on," &c., "at the said city of Toronto,
keep a common disorderly bawdy lioiuse on <()neen
Street, in the said city," kv., and committed to
gaol at hard labour for si ^c months, A habeas
corpus and certiorari issued ; in return to wliic'i
the commitment, conviction, informatior,, anil
depositions were brought up. On application
for her discharge: -Held, I. Xo olijection tliat
the commitment stated the oH'euee to have been
committed on the 10th of August, instead of the
lltli, as in the conviction, the variance not being
material to the merits ; "2. Nor that the com-
mitment charged that the prisoner "was the
keeper of, " &c. , and the conviction "that she
dill keep," iMith ditt'ering from the statute, which
designates the offence Jis "keeping any disorderly
house," &c., for all these expressions convey the
same idea ; .3. Nor that the commitniciit did not
shew that the offence was committed within the
police limits of the city, the words used in tlio
act C. S. U. C c. 105, s. 14, for there w;t8 no
ground for supposing any ditfereuce between
r.
1991
JUSTICE OF THE PEACE.
m
m
i-'is-
ith It ' * '
" : >:•'. i}
ii- Mil
^*ii
tliesci and tlic imliuary city limits ; 4. N(ir that
tliurc WiiH iiotliiiig ill tliu coiuiuitiiiciit to shew
wliotlier thi; jinMoiiui' ipJuiKled to tlie charge or
c'oiit'cHHcd it; T). It was iielil no ohjeutioii that
tiio conviction was not sustained l>y tlie informa-
tion, tlic hitter l)eini^ tiiat defendant was the
keeper ot a disorderly iiouse, and tlie forincr for
kee|iinj,' a coiiiiiion clisorderly liawdy house ; for
the coiiiniitnient would not he Sdid hecause of a
variance lietween tlie original inforination and
the conviction made after hearing evidence ; (i.
]S"or that no notice had hecn put up as re(juired
by sec. "J.") of the saiiie act, to shew that the court
was that of the jiolice magistrate, not of an ordi-
nary justice of the peace; for the jurisdiction, in
the aliscnce of c.\[)ress enactment, could not he
made to ilepcnd on the omission of the clerk to
post up such notice ; 7- Nor that there was no
evidence to warrant the conviction ; for when a
proper conimitiucnt is returned to a habeas cor-
pus, and tlicnwas evidence, the court will never
enter into the ipiestion « liether the magistrate
has dra\Mi the light <'oii(lusion from it ; 8. Nor
that the oirence stated in the commitment, of
keeping a comniou disorderly bawdy house, was
not suilieicntly certain ; for the legal meaning
of the last two words is clear, and if keeiiing a
disiudcrlj- house be no oU'eliee, the adilition of
that would be only surplusage. .Semble, that
oil an application like this, attidavits e.inuot be
reeiaved to sustain objections to the conduct
of i' magistrate in dialing with the case before
liini; but that such conduct may furnish gniund
for a criminal inforination. (^luere, with re-
garil to some of the objections, whether the
eourton such an aj>pIication, can go behind the
warrant of commitiiieiit. AV</''"" v. Miiiini, "24
i). B. 44.
It lies on a party alleging that there is a valid
conviction to sustain tlie eommitmeiit, to pro-
duce the conviction. Jn rr ('run; 1 L.J. N. S.
ao--'. -C. L. Chamb.- A. \Vilson.
'J'lie warrant of conimitnient should shew be-
fore whom the conviction was had. lli.
An a<ljudieation incntionud in the inargan of
the wairant of eoiiiniitiueiit, where there are
several warrants, each f(U- a distinct period of
imprisonineiit, that the term of imprisoninent
mentioned in the second and third warrants,
shall commence at the expiration of the time
mentioned in the warrant iinmediately jireced-
ing, is valid. Jf the portions in the margin of
the second andthini warrants eouhl not be read
as portions of the \\:irraiits, the periods of im-
prisonment would nevertheless be (piite sutti-
cient, the only dillcreiice lieing that all the
■warrants would be riiniiiiig at the same time,
instead of ciuinting consecutively. //;.
A warrant of comniitmeiit which (jiiiits to state
the place where the alleged crime was commit-
ted is defective. .'/( /v tiiihi', 3 P. K. 270.— C.
L. Chamb. — Hagarty.
Jn favour of liberty, it is the duty of a judge on
an habeas corpus, when doubting the sufheieney
of fv eouiniitment, to discharge the prisoner. //;.
A commitment under .'U Viet e. 1(5, signed by
one ipialitied ju.stiee of the jieaee, and by an
alderman who has not taken the neeessary oath,
is invalid to uphold the detention of a prisoner
confined under it, though it might be a justifica-
tion to a person acting under it, on an action
against him. Jtviihiu v. Uuiil, \ p f .)-,.
i. ( liaiiil). M(u-rison.
The issuing i.f a warrant (,f cn„„„it„„„t|
non-payment of c..sts of an .i,,,,,.,), „,„,,,.,■
.U \ let. c. .{|, K. /,i, is di^,T,.tj,,|i:irv im
pulsory upon a ju.stice ; and tli,; i„ui't\,illtlJ
tiu'e on tins ground, as well as nii,iii ti,,. ,,,1
that the party sought to he r„i„ii,itt,.,| i",J
been made a jiarty to the .•i|i|ili,;i'i,,ii mI
mand.-imus to issue it, if tin.-, l,t tW iJ
remedy, which in this case it was luld n,,t'tl
but that the apjdicatioii slioiiM |,avf l,ui, J
C. S. i:. C. c. l-.'li, s.S. Jl, /A/,.,,,,, 1
On a motion to set asideacouviitidii .m,!,
rant of commitment on the ;;nmu4s: I
the conviction was not in the iiia;;istKitt -n
Imt in that of the clerk of the \k-mv: -1. '
the conviction did not <'oMtaiii a clausi". ,f|
tre.ss; and, X That the .■oM\icti..ii .mlv J
ranted the imprisoniiiciit witlh.iit liar.l'lA
whereas the prisoner had lucii ( niiiiiiitu-,1 j
hard labour ;~-Held, that the ihismki i„iiJ
discharged, but on the last gr.iiiii,l„nlv /,'J
V. Yivimim, () 1'. ]{. (j(i,— (;. j_. iliaiul,,
rison.
The plaintiir iirodiiced a wariaiit is-iitil
his arrest for not liiidiug siui.'tas t^i tlii i
in pursuance of an order to that Llfat, le
in the Avarrant : -Hehl, that muIi wamuiti
prima facie eviileiice of the mikr ,v
Aiii/civoii, l.';j ('. 1'. |,V_'. '
.See Jn re McKiiiiioii, "J L. .1. X, s. ,')'J4,
VII. Wahhant or l):Mi:i:>:
AVhere a statute gives justicis nf tln'i
power to niake by-laws and iiniiosu iiiiialtid
their infraction, they ciiiiidt, luiKss tlitvl
e-xpressly autlnu-ized by the statute, kvyl
penalties by ilistress. kirkimtrirl v. .■l-l'ij
T. 7 Will. iV.
On a demurrer to an avowry in niikviii j
fying under a conviction fur scllinu ypiijti
liquors without license, and a lli^tlv^s \v,i
issued thereon :- Held, iliiiiei essaiy td
that the warrant was under seal, nr tlint iH
directed to any one, it lieiiig aveiiid tii liavo|
duly issued and delivered f<ir eXLUiitinii t"
dant M., the constable : -Held, als(]. thai
avowry set out in the case, siilliciciitlv >lil
that defendant, M., was a ciui.stalik', aiiil tf
was delivered to him for eXLciitinii. /'jj
Mc W /till nil', 27 ii. K 2S'.».
It was held no objection ta a wariant oB
tre.'is under a conviction, that the o"sl|
conveying the defendants to ganl, in the i
of imprisonment in default nf tlistiv.''s
specified. //).
Hehl, also, that the iiieiitiuii intLfwirn
the $1 costs of conveying liefciidaiit.- t()|
could not vitiate, for it aiitlinri/til a ili
only for the penalty and costs of emu ittiin
Held, That under ,S(i "\'ict. c. 48, f.J
where a person is ordered td \my a tiiii;,|
default to Ije imprisoned, a distiess iiiiistj
for the fine and be returned iiiisati.-lini
he can be imprisoned. Uiijiiio v. Wabl'-)
K. 244.— C. L. Chamh.-(ialt,
See Moffut v. liuvmml, 24 Q. B. 498, p.]
11
icil'tiKi Y. l!";il', 4 1'. U. •:.,!;,.
)n'i8(m.
ll' a WHlTiUlt ll[ Cdllllllitliniitl
f fosits lit' iiii .iiiiH'iil, mi.lirl
H. 7">, is ilisrvrtidiiiiry, nut i
justii'c ; mill tlic ciiuvt willtlj
lunil, iiH well ;is ii\i(iii tliv m
wimyht to liii iiiiiiiiiittfil Imgl
);irty to the !i|i|ilii-;itiiiii, \\i^
issiui it, if tills 111' tliu
in this i';isr it «:i.* held w,({
ililii'atiou sliould li;ivu luenv
f_'l), s. vS. Ji' h'li'it.;! V,
to sii't asiiluiirdiivji'tiull \\\\A\
itliirut oil tliL' ;;rimiiiU;
was not ill tlii' iii,i^istrukso|
thu clfrk ol tliu iiuace ; 'J.
1 (lid not I'ontaiii a i'Luim' <jf|
That tlu! I'oiiviotiiiii nnly
ijirisoiiiiu'iit witliiuil luiiii Lili
[irisoiRT hatl ln'i'ii iniiiiiiilu.l j
-Hehl, that tiiu iiriM.inr ii.ai
lit on lln' hl^t uroiiiiil Hilly. //(J
i r. l\. ()().' ('. 1.. fliaii'ili.-
ill" iiroilucuil a wainiut iwiicn
not hiiiliiig siiii-'tas tn tlu [
of an orilcr to thai ctiu(.t, re
it :- -Held, that Mich Wiin.i
Lviduncu of tliu unk'l'. >;'■
C. v. )'>-2.
\lcK}iiii'>ii,-2 L..I. N. >.:]-ll\>.
WARUAN'r or l)isriti>s.
[statuto gives justicis hi tlicj
vi; liy-laws and iininisu iniuiltid
ion, they eaiiiuit, inikss llitjl
thori/.ed by tlie statute, kvY]
1 distress. 'Ku-k^KiUvh v. A-'h
rrer to an avowry in ivi'li viiil
a eoiivietiou for >rliiii;: >l'in^
[Hit license, and a ilistiv>-
jili :-' Held, iiiiiieeossiiry !•
[rant was under seal, "r tli;.; id
liy one, it heiii;; aveiTcil til h.ivc
ud delivered for excfutiiiu t"
^. constable : -HeM, alsu, ti
Lt in the ease, siiliicicntlv >lii
]it, M., ^^'ii** a eoiistalilu, aii'ltj
to him for exeeutimi. /.'rf
1^7 Q. H. -JS'.!.
. 110 ohjeetion to a warrant o|
i-A eonvietioii, that the
L defendants to gadl, m the I
Lent in default of distress,]
that the nieutioii in the warn
of conveying oefeiidants toj
Liate, for it aiithim/.t-d a ilf
leiiivlty and costs of euiivietionj
L under 3(i ^■i*•t. c. 48, U
Ion is ordered to iiay a tn^
I imprisoned, a distress imisti
I„d be returned ""s^')'*';'"' ^
|,risone.b /^■.'/'"" v. ^*'<'*''1
. Chainb.-tialt.
fv. i/«nmr<^24Q.B.498,p.
JUSTICK OF THE PEAC'K.
10!)4
Iflll. Piw'"''"
1,
•TION' IN IvSKirrmN «ik |)l TV. ; tiining the. i-lotlies of one K. The plaiiitilT,
PriiirijiIcK of Iinniiniihj.
ntilT was arrested Ujion ii warrant is
elelli
dilllt.
a niagi
<ti'att
t liini.
i nil cv
|), fiiidant examined the iilaintitt', discha
being told by the coiistalile that he liiid the war-
rant, went alone to deleinlant, heard the evi-
' deiue, was allowed to go away without giving
liriiu^jht bail, and returned the nevt day, when he was
ll : Held, that no iiii|ii'isiiniiieiit was
idciiee, sail
1 he could not liail, and liroved ; and that defenilaiil, having jiiri>iilietioii
, till' idaintitV to gaol, on a «
Lit lie was charged liefoiv liiiii
tl
it I over tlu! subjei't matter of tli
le no
t liable' in tres
iiiniilaiiit, was
II if the iiifiirniatioii
11. with steali
[liliilicli'''''
laiit was
or to give eviiUii
The idaiiitill' did W(Me iiisudiciciit in [loiiit of form. Tliurjn- v,
liable in tresp
'''that the iilaintill'was iimi
Hehl. (>i:rn; 20 (.). I!. ■-'(U
Action against a nngistr itc for wrongful arrt!st
for, as-
L'l'U brought
tliiin. ye
l th
iif the
niiiiitnieiit without aji
■osecutiir, or exaliiinatioil ol
and iniiirisiiimieiit, ii|ioii a coiivirtioii for
siiirituoiis lii|uors witliniit license
illi
less, iir o
nraiivl
1 the idaintill' .acconliii
■ to Ih
•t eitl
HcM, 1. that
I'-'d. s. .'I, tri'sjiass will not
under ('. S. r. ('
lie a".iiiist ;i m.'idistrate' until tlic convictinn ci
k'^d confession was ;in act either .,i.,i,„,,, „f j,,,^ i„,^,„ ,.„;,sl„',l ; •_•. That t
•„ri' \vi
Ll*
ithiiiit or in excess of jiirisilictioi
itliin the second elaiisi
and
if ('. S. V
tioii never havin
led, it
ini-
lii'convio-
was not nccef
That section is to be coiilined to ca.ses
I
sary to have it nuaslied before iietion ; ■(. That
• lit III
as only one wrong was i'o:ii]il:iiiu'd of by jil.ijntiH,
he could not recover on the two sejiar.'.te counts
, ..... in tresiiass and ease, but must elect on which to
,roteitiiiii del.elids not on .nrisdietion ^_,,,j^,,. j^j^ v.nlict. Seiiible. that he could not
V'li llif 11 ■' '','/ "'/"'i'/' '/"' iilniiit'i'f i" iiijiiri'/ ]
,'xi'os.sof juris
itioli: but the n
et matter, but over the individual
,pl, r,miii'r.i V.
Dtirliii'i, -J.S (,». H. .-i41
the first
..,...». .... ...v. ....,.; count because the lii.igistrate
had jnrisdie'tioli, ite., and by the st.itutc tin;
hlsitv (if a charge cannot give a cause of ' actiim should be in crsc. ll-i,!.-.'-- v. Ailmii^ini,
J raiiist a magistrate Willi acts nimii the; 14 t'. P. '201.
feitwu .and belief of its truth ; and an alle- ' Defendant, a justice, i.ssncd his warr.int under
Ltli.it he acted without any jnst cause iii"m ; (,_ ^_ ,.^ ^, ^^.^ '^^ ^.-^ ^„ emiiniit the idaintill' for
L,liarge, hut not charging miUice, me^aiis .j^j^.^y .j.^^^ ,.,,,, „„„,,.i^.,„..,|t „,■ t|„, ,.„sts of an
Ujt tlu cliarge being false he liadno JO'-^t , .j,,,„.:^i t„ th,, (^„a,.ter .Sessions, unless .such sum
L y..fn,iii V. AiiiliTMiii, •_:< ( . I . l.>-. ! .1,1,1 Jill costs of thedistress and ('omniitnient and
r i ,.,.....,..;.... ^^ i„:,.i^:ir i i ..i i.i i
Arliml \yilliill Jiiniirii'lhiii.
Jin,
i convoying the idaiiititr to yaid slnuild be sooner
paid, but he omitted to st ite in the warr.int the
I amount of costs of the distiess ainl coniiiiitnient.
t n eniiviction is iimiahed, ease will not J 'l"'"^- I'liiintitV having been coiiiinitt.d on this
t uiri"istrato without iiroof of want of warrant, sued defendant tor false imiirisonmeiit :
' '' - ■ ■• ■■ - Held, that thiiiigli it was the duty of the jus-
tice to ascertain and st.ite such amount, yet the
omission to do so, thoiigh it might have occa-
sioneil the iilaintitl 's disihargi'. did not shew
either a want or an excess of jiirisdictinn, but
rather an irrcgul;ir exercise of it; and that
defendant tlierefoie was not liable in trcsjiass.
Held, also, that the deti riiiinatioii as to these
costs was clearly a jiidii'ial. and not merely a
ministerial act. hirh-nii v. Cidhh, "Jl (,>. 15.
■W4.
Ml' jii'iihable cause and malice.
Vmhuiu 1 c. p. ;?r>8.
(A. went before the defendants, two jus-
Uiiil swiiiv that from circnmstances men-
Ik wa.'- afraid that the idaintiH' would
, his iimiierty ; and he therefore prayed
,j«mijit lie hound over to keep the peace.
SKhuts thereupon, on pl.iintill's refusal to
lim'tie.s, eiiliimittcd him to gaol: Held,
id
tkc li; Viet. c. 180, clearly applied, and
iiK'i'iilv a special action oil the c;uic couhr ,, r i ■. • • r .i • . , .i
Mtmieil l-'iilhirtoi, v. Simlz<r ct ol, 13 (,>. ' l>efendant, a pistiee of the iieace, e'oiivictcd the
'.; i jilaintill under ('. S. I . ( '. c. !)2, s. IS, of making
. ,. , ii, disturbance in a place of worship, and eonimit-
nr.^ to a mistake m the crown otlice, a ru e j^,j ,,;„, ^„ ^.^,,l „.it||„„t lir-it issiiiim a warrant of
flnitlie writ of certiorari and afterwards .ij^tress, wliereupon the idiiintitV brought tres-
t:.'-,ui attaelimcnt, issued, althoiigii a re- .,^^_ jj. ,„,.,u.i,.,,,i .,t tl, ' trial thit the iih-iiutiir
iLliiif.iet been tiled. 1 he conviction was „ i., „,...,, t,, t),e .l.t'eMil'int .'uid .', bov
iiu'couMiuo.i ,vas ;^..,« „.,,ii ki'iown to the ih'fciid.'int, and a boy
ki-L liat miire.thaii six months having thus ii^.j„j_, ^vitli his i.arents, .-iiid Inving no property :
»Umce the couvietion, the court were Hehl, that the .action wimhl m.t lie. for dcfeii-
illuwimieess to issue against the justice j.^^j ^^..^^ :uitliiiri/ed bv ('. S. ( '. e. lO.'?, s. .''.<), to
Iwil e.invu'tion as of a previous term, : ,,,„„„, it i„ the lirst inst-ince. that statute api.lv-
iaiiiilieatiiiii was rotiisei . (^nere, whether j,,^, to this conviction, and the warrant was siifti-
[ iMiths eiiuld belield to run only Irom , ^.j^^t, .-is it follows the form given by the act,
le (it MUitehiiii' the conviction, /n cc Jour, \ ^\,:,.\, ,.n„t,,|„s „„ .-...'ihil of th,. .r,.,„i,"„1 f,,,- „,&.
; which contains no recital of the ground for not
I first issuing a distress, (.lini'ie, whether dcfeu-
iiir ni.ilieioiis prosecution. Defendant : <l'ii>t would have been liable if lie had not jiroved,
" ■■■' as such acouired his knowledge 'iw l>i-' did. the facts wliiili justilicd him in dis-
. '. . . .. . P : • . . ...:ii. i;„j. .,.
IPlw:.
Kcinmiistaneeson which he iireferred the ' I'ensiiig with distress
Ligaiiist defendant ;-- Held, clearly no j Q- 1^- 't!'8
ilfiirrciiniring that express inalieo should'
p*U'il .".gainst iiiiii. Orr V. Sjiuoucr, 19 Q.
MiijI'd/ V. liiinmnl, 24
N'ulMt, us a justice, issiicil w warrant
•il tW' iilaiutiff, upon a complaint for de-
The warrant committed the idaintill' also for
the charges of conveying him to gaol, bntoinitteil
to state the amount: Held, following Dickson
r. Crabb, '24 Q. li. 4!)4, that this would not make
defendant a trespasser. Ih.
lO'jr)
JUHTTCE OF THE PEACE.
1 1 «
J.
LvA ,111
Wlioro tJio ilofenilaiit, a justiuu of tlio pcaci;,
had laiil an iiifiiniiaiinii hi^foru aiiotlicr iiuigiH-
tratc, liy ulicnii tlic |ilaitititl' was arrustud on a
wai rant wliicli tnrncil <iiit to have hucii ilk'gal
or voiil, anil ini[H'isiint'il, thu defendant and the
other niaj,'intrate having refused to admit liini
to liail : Held, in trispans by the iilaintit!
against defendant, <liatging him with the arrest
and iiniirisonment, that in the absence of any
otlun' evideiiee, the mere refusal by defendant
to .•idmit the iilaintiU' to bail was no evidenee
that the defendant authorized the illegal arrest
and iniiirisonment of the iilaintitl', and a non-
suit was oideied. MrK'niliy \. Mitiifh-, lot.!. P.
230.
The ]ilaintitl' w as brought before defendant and
aiiotlier, a magistrate, on the "Jnd of .lanuary,
187">, under a summons issued by defendant, on
an infdiiuation that lie did, on, iVe., "obtain by
false jiretenees from eomiilainant tlie sum of live
dollars eontrary to law," omilting the woi'da
"with intent to <lefraucl," whieh by the statute is
made I'art of tlie oHVuee 32 ifc .'W Viet. e. 21, s.
!>3, 1). Tlie j)rose(utor and another witne.ss,
T., were examineil, and their statements shewed
that the [ilaintitl' sold :Mime wood to the i>roseeu-
tor on a eertain lot, telling him that some other
parties had drawn it out, but that it was his,
and if theri^ mjis any trouble about it he would
stand between the iiroseeutor and all <langer ;
that the jiidseeutoi' paid him .•?") on aeeount, and
was afterwards preventeil from drawing away
the wood by one \\'., to wliom '1'. swore it be-
longed ; and tliat the plaintirt' had oll'ered to
return the ••:!.">, whieh the proseeutor refused be-
cause the plaintiff would allow nothing for the
use of his team. W. was absent, and tlie prose-
eutor asked for an adjournuient, whieh was
granted until the r)tli. l>efendant oli'ered to take
bail for plaintilf's ap|iearance then, but the
paintill' refused to give it, saying "Send nie to
gaol," and defendant ordered the constable to
take him into custody. The constable tliere-
ujiou put him in the lock-up, which was not a
])roper place bu- the ]>urpo8e, being very cold
ami uncomfortable, where he remaineil until the
5th. This constable, who acteil as keeper of the
lock up, said defendant knew that prisoners re-
manded were conlincd there. On the 5th, W.
appeared and was examineil as a witness. The
case w,is adjourned until the 7th, the plaintilF
giving bail for his a])pearanee then ; and on that
day tile magistrate, having in the meantime
consulted the county attorney, dismissed the
charge. The phiintili' having sued defendant for
malicious arrest and for false imprisonment: —
Held, that there was no cause of action on either
ground, and a nonsuit was ordered ; for I. The de-
fendant had jurisdiction, for the information
might by intendment bo read as charging the
statutable oH'ence; and if not, the plaintill' should
have taken the objection before the magistrate,
when the infornuition might have been amended
and re-sworu ; and he v\ as precluded from rais-
ing it in this action. 2. There was, upon the
evidence, no want of reasonable and probable
cause for what defendant had done ; for though
what the proseeutor complained of was a breach
of contract and the subject of an action, it might
also support a criminal charge, and the remand
under the circumstances was authorized ; and
that there was no proof of malice : — Held, also,
that the defendant could not bo held liable for
the plaintiflf's sufferings, cuisaiI l,y ii , , ,
of the lock-up, for \w hiiil ii;in,ul,k.,'l i '
giving no exiire.ss diitctions tn
exiir
I'lit bin.
itl
■•iftwwiir.l,,
.I'le |ilaiiitili til
('rttir/iinl \. JJeullii-, ;i<) (^ ]• |;)
A cimnt alleging that d,.f,ii,u„ts w.r, ;,„
of the peace, *c., and iissiuniiij. ti, act ,
justices, but without uiiv iinisiji^.tj,,,', , ' "
rity in that behalf, i-aiis',.! „ ,|i,t,,,, ;'
be issued against the ]ii;iiiiti|fs „!, ,■ '
which they had adjiidgi.d t!.,- phi,,
under and by virtue ,,f ,i ..^.i-f.!,,, ^.^
made by them witlmut aiiv jiins.licti,,,
caused the plaintilf's go'uds to l,u »„l,'i'
under ; wliieii convictiun \\;,^
(piaslied on aiiplicatiuii
court, whereby tlie pLiintilf InU thu u
value of his goods, and was put to m^t- ■»
tiiig the conviction qiiaslicd : JbM ,^^ '.
trespass; and that the jiLiiiitilf wiij ,!,' „
nonsuited, tlie cause of iiiticii lR.ii,;'aii i t
liy defeiulants in the ex(.viiti.iii ,,r tlnii ,:
with respect to matters wuhiu tlnir jimviic
Quicre, it tiie phuiitilf hail bcui ,iititl,,l to
cced 111 trespass, whetiiei' he .uiild luvcm,,'
the costs of iiuashiiig the cunvirtiun ;i< ,]' ,„
lldllcti v. ll'/7;//o^ ilid., {}, 1!. M p |,,-',.
yet rciiorted.
3. A ft ill;/ WitliiiKl or ill A'.'v,.M„/'/,(W.„/,,/J
When magistrates cuiuniit a ]iti-,si,ii
general charge of fchmy given iiiinii,,;itli,t|„J
not lie liable to an action nf tiT.-pa.-is, iihin.iii
facts sworntoinordertosiili>t:iiiti:i'tutli;itoiJ
may not in point of law suppuit it ';.i.-./3
lini-indl, Tay. 18!).
A conviction, bad on the face ,i{ it, ilth
not quashed: -Held, im dcfi'ii.'e tu an'a-tiij
trespass. BriijiiK v. Sjiilslmri/, T:i\. 440.
Omitting to state thecmivictinu inliisHa
of commitment will not subject a jiistio
action for false imprisonment, iniiviiluil thai
viction be proved. Wliclun \ . .iti-o-ii.<, Tay.f
It is a good count in trespass .igiiiiist a jii
on motion in arrest vif judgment, tlmt he]
force and arms issued his warnint, wli.rel
caused the jilaintilf to be wnuigi'ujly iiniiiii
without any reason.-dile cause, iiiitii'tlii' i
gave his note to A. to olitain his .11.-,
JiniiiHiii v. Jlitfilir, (i (). S. ."OS.
Where an act passed liy thu iinut
legislature, was subseipieiitly ili.salluwuijj
while in force the iiliiiiitilf i''i'' lunii r hidi
under it by dofeiid;ints, and a \v:in:iiit w,^
perly issued by defeinl.ints fur his and
imprisonment, which, hdwever, «:isiiot.sei
until after the disallowaiu'e uf the act ivjul
lished in the dtr.rfte :---lIelil, that a.s tiii'c'(f
tion and warrant were legal, the ikiVa
could not he considereii as trespasiiTj,
V. Lan-ra.ioii, (> O. .S. 31!).
A conviction not set aside ]irotects a ^
trate against an action of trespass. '■>«
Devetiisli, (i Q. B. 2()0.
One 11. laid <au inforniatitm befme (i., a J
magistrate, stating that one 1'. (i., tlieka
a tavern duly licensed, kept a ilisuiilirlyl
&c., and prayed for a warrant n^md th/
P. G., anil all othei-s found ami euiiLtiikJl
house. A warrant was acconiiiyly i'Kul
11
iH'criiigii, ciiioi'dliyil ,,,[
for hi^ liiiil n:iiiaiiiluil liim (
jss riinxt'hiin tn imtliimtll
utiii; :«»<,». !■.. i;t,
iiig t)\;it (li'fciuliiiits \v(,Ti> jiJ
kr., ami :i«siiiiiiiig to act iis I
tliiiut any jiirisilii'tiim dr i
lalf, caiisi'il a •listruss w;irrai
st tlio iilaiiititl's ^'unils f.irl
(I adjiuljicil l!ic iiliintiti' to
virtiii: 111' a riTtmii cunni
I withiiiit any .jurisilii'tiim.T
lintilV's ),'ilinl« til lif siiiil tlj
coiivieliuii Was aftccwiinl
H)lii,'atiii;i 111' the |il,iiiitill tol
y the lilaiiLlilV lusl tliu ibe|
imkIs, ami was [mt tn uust.- i
.■tiiiii 4iiaslifil ; llclil, :i lmuii
that thr |il,unliir m:is
I causo III aitiiiu ln'Ui;^ ;ili ,rt]
in the I'Xuciitiuii III tliiir
i> iiiatti'i's w uliiii thiii' juriviid
jilaintitV hail lni.ii mtitlnl tol
4S, wliithei' lie II mill h,i\i; i\ij,ii|^
lashilii^ the eniivirliiiii as iliiu
'iiwi i^inl., (>. 1'.. M. T. IsTi;.
"itliiiKt III' III l'J.ii''--i^ iif JiirUlii-u
'iatrates cimiiiiit a iii.i',<i.ii v.p
enf fehmy given uiiiiinatli.llw
;(i an aetimi nl tiv,s(i,iss, iiUlinii^
II ill (irclei'ti) siili>t:iiiti;iti;tli;itc
oiiit <>t law suiiimrt it. (I'li'/lJ
-. IS'.).
iiin, liail 1111 the fai'eiif it, illhl
llehl, lin ilefenee til ail ;i';ti^
■;;/l/x V. Sii'iUmri/, Ta). 440.
() state thucouvietiiiuiuliiswa
Mit will nut xuliject a jilstiu
sc iniiiiisnnnieiit, inuviiltil tlieL
(jveil. il7/(/'i» V. ,•)'!. OH--, T.iyl
1 eouiit in trespass agmit.ijii^
arrest of jiiilgiiieiit, tliit !.(
iiis issueil his wamiit, wlire(
laiiitill' to he wriiiiglully im;
reasoii.-ihle eaiise, until tin
to to A. tn iihtaiii lii.s 'li-i-'ll
Id/i-lh; C 0. S. :!0S.
u net pasaed hy the I'vn
tvas 8ul)senueiitly' ili.sallii»ui
M the iilaiiititl' h"- Imii oni^
lofeii'lants, ami a warant w.il
liy (lefellilailts fnr lli< aiTi'«
t, "whieh, however, w IS ii'rt.sei
f lUsalhiwam-e of tin- a,t «:uj
(,',(:W^!;- -Helil, thatastlaaj
irraut were legal, tlio AM
cimsidereii as trespusscrj.
(J O. f<. Hl'.t.
Ion not set asiilu iirntuots a 1
It an action of tresiiass. '*
L B. titiO.
Ill an inforiiiatioii before U., a]
Itatiug that one !'.<;., the K
It lioenseil, kept a .lisonleriyl
|ye.l for a warrant against tM
ll others found ami c.iiiariKtll
larraut was aoconmigly 'zmn
JUSTICE OF THE PEACE.
1998
ijiri-itcil t" •'*'l constahlos, coininaiiding them :
rv'heiiil I'- '■■ "'ind all titliers fiiiiiul and
i^iliii her liousLi to answer," ile. Under
[tie ilefemhiiit.S e.xeept 11. ami (i., went to;
fi J,,. .,11,1 arrested I', (i. and several others,
jtkiii the iilaintitr, a traveller and a gnest
Jh.iuse, there lieing then no disturli.inee in
11^,. . _Huld, that the arrest of tin' plaintitr
lillewl there lii'ing no eharge a>;.iinst him ;
llhitlv'i hiviiiL; [irayed proeess only against
K.u lint lial lie ; and a nonsuit w, IS set aside
till till' other ilefeiidantH. L'liliiinl v. /I'uhiii-
^„U1''. I'. 41(1.
I'lttli -ii|iiHised to have lieeii stolen are t.iken
Ii a luiistalile, to H.,aii iniikeeiijr, to take
.\fter sniiie time I?., wishiiij; to lie paid '
Itie kt'i'ii, aniilies to ('., ,a magistrate, who i
.„,|iiiii; to ilo with the ori'.,'iiial e.i|ition, for
ii,;ii. ('. tells him to sell the eattle and
V hiiilaiiii, wliieli H. does. The owner of
riatilt' siw ''• '" trespass: Held, tlivt
Lauil nut trespass, should ha\i' lieeii the
Siiiilile, that under the eireiliiistaiiee M.,
limki'iper, wmild not he liilile to the owner
%«ji. Miir-'li V. /J'tii/toii, 4 (,». 15. .■(.■)4.
itr.' iustices have a general jiirisdietion over
. t laiitter iiiioii whieh they liave issueil
(Tint iif coiiiiiiitnient to the gaoler, though
Ifpuveiliiigs he erroiK'ons, the gaoler is not
Scciis, if the proeeedings he wholly void.
timy.Ailiinis, iiy. J{. 1!W.
Ken but M., a niagistr.vte, gave a warrant
Itemliiit K., a eonstalile, on the iJ.'trd of
ilur, miller see. 200 of the I )ivision Courts
lit.iiittiich the goods of (i. in the possession
[iLiiutitr and others, who were about to
ll, I'luler this certain goods were seized,
laitti'iii was brought ag liiist the constable,
luj'btratf, and the creditor. The magis-
iLiniig i.ssiied such warrant witlnmt the
tvit rciiiiireil : Held, that he had no jiiris-
iwutt'ver, and was therefon^ a trespasser.
Ifctjiizuie took place <in the 'J.'h'd of .Sep-
■. Uit the goods were then left with the
nil his giving a receipt, and on the "J.'ith
|im taktiii away by (lefeiidants K. and
lifclitiir. The notice of action was for the
I HI the ^.'itli. It was left to the jury to
liM the actual sei/.ure took jdaee, ami they
lltLititwus on the '2'ith : Held, that this
|lM trcsjiass, for which the magistrate wa.s
unil a veiiliet against him was upheld.
M'i'nrtii ll III., 'l-l Q. B. "iliS.
nwriiut eiiiiimitted the plaintid' also for
111 eiiuveying him to gaol, but fiiuit-
Itiititt the auK unit: -Held, following Dick-
fttrilli, •24 l^. B. 4!)4, that this would not
I Jcitiiilaut a trespasser. Mofiil v. Bar-
I^H B. 498.
«i« ilcfeiidant, .sitting ahme as a magis-
koinvicteil the plaintiti' for selling liijuor
iitaliteiise in a township where a temper-
IJS-b was ill operation :^-lIeld, that he
IWt ill trespiiss, for the temperance act
f lirisihction only to two justices :— Held,
P»,th,ittlieeoi '.ietion, though void, must
WmulerC, s. U. C. c. 121), s. .% Ixjfore
IWiim wouhl he. Graham v. Mc Arthur,
lint, a justice on the 5th May, ISfiO, is-
iwrraiit against the plaintiti' on an alleged
eharge of stealing a le.we, without vnv informa-
tion lieiiig laicl, upon which warrant the pl.aintit!'
was arrested and broiii;ht liefore him : IKdd,
th:lt defendant was liable in trespass, as with-
out information on oath he had no jurisdiction
overthi' person of iiliiintitl'. I»efend:iiit, on II th
■May, e:iuseil plaintiti' to be bmuolit before him
a second time on said warrant, \n lien there wa.s
no prosecutor, no ex;iminatioii of witui'sses, anil
no eiinfossioii, and committed plaiiitill' for trial :
Held, folliiwing Connors i: hailing, 2.'t <,». H.
.")4I, that it Wiis a new act of trespass, for which
a seeoiid count was well laid in the derlar.ition.
.\t the si'ssiiins defendant appeared as prosecu-
tor, when phiintitr was tried and aei|iiitteil : ■
Held, tli:it a count for iiiiilirious iiroseii-.tion
could be added for this : Held, also, that ii
w.irr:int, though good on its face, will not pro-
tect a justice under C. S. I'. C. e. 12l>, s. '2,
unless issued uiion a proper iiiforinvtion. A/i/>ff-
iiiii V. /,./-/(/•, -joc. I'. i:w.
A magistrate hiving entertained a ease under
the Master and Servant's Act, C. S. V. C. c. 7.'>,
as :iiiieiided by 20 Viet. c. 'X\, !»., and coiivieteil
the plaintitr, notwithstanding more than a inontli
had idapsL'd since the termiii itioii of the engage-
ment, and although he was told that he had no
jurisdii'tJoli, and was shewn a |irofessiiiiial opin-
ion to that eU'ect and referred to the statute : —
Held, that the jury were warr.inted in ti.iding
tlnit he did not bona lide believe that ho
I \\i\» acting in the e.Kecution of his duty in a
; matter w itliiii his jurisdiction ; and that he was
, therefore not entitled to notice of action. Ciiin-
\ mills V. .1/oo/v, ;i7 t^ B. i:u».
Thephiiiitiflhad laid information before tliedo-
fenihmt, a magistrate, against (i., lor an assiui''.,,
but :ifterwards decided not to proceed t'"' ,ier.
Defendant issued a summons, addressed tn her,
reciting the information, and rei|uiring her pres-
ence on a day named, then and there to testify,
&c., but she said she did not wish to go on ; anil
on the same day she was arrested under a war-
rant issued by defendant, which recited that she
had refused to ajijiear before him, and eonimau-
ded her arrest "to answer to the charge, and to
be further ilealt with according to law. " Shu
WIV.S brought before defendant but refusi;d to go
on with the charge, and a friend |iaid the costs
for her, when she was disch:irged. These jiro-
ccedingswere taken, the di't'eiidant said, in order
to get the constable's lees : Held, that defeil-
ilaiit was liable in trespass, for the iilaiiitill' was
not bound to proceed with tlii; charge ; and de-
feiiihint had no right to issue the siiimnons un-
der s. Ki of ,32 & 33 Viet. c. .SI, or the warrant
under sei'. 17. Cross v. n'ilm.r, 'A'J i). H. 187.
4. Tiiiili-r of Ami'iiils.
Where a magistrate sued in tresi):isH for an
alleged illegal proceedii.g, under the 4 & ."> Vict,
c. 2(), he m:iy give in evidence a tender of
amends, under tlie plea of the general issue.
Moore V. Ilolilitchcl al., 7 Q. B. 207.
5. Damages.
Trespass against a magistrate for seizing and
selling iilaintiff'3 goods. At the trial evideiieo
\ was given to shew that the plaintiff had been
VJW)
JUSTJCH OF TIIK I'EACK.
1,1 '! .
i -
■,-H
j,'iiiHy iif tli(^ ((IVi'iici', l)iit HiU'h cviili'iict! wiw i llild, tlrit tlie facts nf tliis cno.
oll'fi'ud 1111(1 ri'CfiviMl iiiilv ill iiiitiyntKHi of cliiiii- to mititle (k'fcinliuit to tl i.. » ."''•' ^"^
• ■ vi.'t.e.-j.i;aiuiti,rii:: '^'^"'
«>,'(,■». The |pi(ivisi(iiiH of Hi \'i('t. c. ISO, s. \'2, liy l it
■wliicli ill Miicli :i rum- limits tlii' iliiiii;ii;cs to two tciiili'il liy that Ntatiitc to
IK'licc, iiiiil ck'|ilivcH the lilaiiitill' of tdstn, were
overlooked, and the jilaiiitilf ohtii
for full (laiiiaiieH : Meld, that tin
ni^w trial without eontH, Held, also, that tlieHee-
,|ll'*tU'f»
privil,.
i" ri:
•\ei.i).tion from eosts, iMVMot ciur',.!!,'., 1 T'
hiter .•1,4 It .It- |-> \■i..^ .. - ■ ^'""-HI'M li'
overlooked, and the |ilaiiititr ohtaiiied a verdict later act I \ it j.'i \'iet. c. ,")4 i- / ' "J]
for full (lamaiieH : Meld, that there must lie a Unili', Fhi/ii;/ v. Ilnih, !l(). ]; (jcii' '''' "i
ni^w trial without eo.itH, Held, also, that the see- 1 ,., ,.
tion is not eonliiied to uetioiiM in widch the', ' "" "■"^"'!"*,^'^''': '"'""ul't "fiaiiist n iuHti,
justi.'es had jurisdiction, /inw.s v. //»/,r,', 15 :'^':''''l"''*'* '''''' ji'r'' ''''l'i;''''i>i,unf. n„ ,i,.
. . . J '•"""' """"'•'■•'^'■"f t-.' I(k.ai„li„tl',
Action !i;,,Miiist a magistrate for \vronj,'fnl .iv- Is; Hi Id, that tln^ I t ,V |,"i\'j,.t ■ -i
rest and imiirisoiimciit, upon a conviction for and tiiat the iilaiiitill'was
Bulliiij,' liciuors without license. The lirst count
was ill trcMjiass, the second in case. .At tlu'
trill the od'eiice of which the lilaiiitid' was con
victed, w.is fully lUdVed : Held, that on either
count tile dain;i^'t'S must lie rcdiiceil to three
cents, iiiidei- ( '. S. V. . {'. c. I'JIi, s. 17, as (daiii-
till' was proved "uiiilty of the otreiice of whii'li
he was convicted," and this aiijilics as well to
trespass as to case. Jld'ivh- v. Ailtiiii-inii, 14 ('.
1'. --'Ol.
mhoth suits. A,,/v V, /,',„7, /■•;„/,„,,
•-'('. L. Ciiaml,. l.M. liia|,cr. '
Where a plaintiir was icstnctcd t.i th,
ta-y ot .mly th.ce cents d,m,aj,.cs, 1,, „,,s ||,ll
to he entitled to any co.sts. Held ul.,. ti J
ISth and M.th section.s .if (' s r V'i
tak.'ii to^'elher, must he liiiiitc,l'"t„ ■invl
action __iio( pi'ovide.l for in section 17 uf 't|,;|
d.so, that no one can lun« f
act. I ltd!,
taxed to liim who did not incnr cust..; /J
V. AihluiHiHi, 10 I,. ,1. oy,) ,, I ', I f
I,,.... ■ '■ m
Tiie w arrant of comniitiiiont directeil the plain-
tiff to he kept at liard lalioiir, which the teiii-
])erance act, uiiiler whicli the con\ iction took
idace, does not authorize. The turnkey swore
that the [plaintilf "did no hard work in j,'aol :"
-'Held, not sullicicnt to ne;L,'ative that lie was
put to some I'onipulsory work, so as to liring de-
foiidaiit within section 17 of ('. S. U. ('. e. 1'2(!, .. , ., i «
which rctpiires it he proved that d.'fen.lant had f'"'' ^"'' V'" •^' '*"""''* '" '"' '' "'"''1 lu
under-one no .-rcater punishment than that '"-'''", "'•"'^V'M""'^'''.':". *'"' ''I'l'li'^iti"!!, rel
assigned l.y law, to the offence of whi.di he was """"'••'""•■^ to issue if, it this he tiic pni.r
convicted. (Iraham v. M,- Arthur. •_'.->(.». IS. 47S. , >'• "'"^A '" ,'■' ''I"'' '' "''" '"^^''' '"
I'llt that the application slioiiM li;ivi' lii-,|.
In an action against two justice.-, for one act of t'. S. l"^. ('. e. 1 '_'(>, s '
iniprisoniiient, charged in one count as a tres- iinl>li,
2)a.ss, ami in ;uiotlier as done iii.ilicioiisly, the
jury found .'r'SOO against one deftiiidaiit, and $400
ugaiiist the other. SeiiiMe, that the damages
could notlie thus severed ; but Held, nogidiind for
sv new trial, as the linding might lie tivateil as a
vcrili<'t for $S00 against one defendant, the other l>'''«i"iincnt and seizing and sum , ^
lieiiig let go free hy the plaiiitilK (jhiaTe, as to ! eliattels, wiieie he sutlVis jiidj^'iiiciit U ili
the ]U'o]ier inodeof entering the judgment. One it '>* unneiH-ssary for the plaintilf tn iimv
of the rlefenilants having used insulting expros- ' he gave notice of action or cuiiiiniiii.'i
sions to the jilaintiff during the examination : i suit within six months. MUU v. .I/^.k|
Held, no misdirection to tell tin; jury that tluiy I •*• ^. 383.
were ,at lil.erty to give exemplary or vindictive | ti^, .admission hva constal.lc sue
ila.nages; and that the verdict was not excess- : „.itli two justices,' that a paper ,,n»liKv,l
sive. ( '/,ss„,l V. ;/"'•/"'//'-' "'; -'■> *i- 15. 80 ; .S. trial was a copy of tile warrant iiii.l.r iv
t., in appeal, '2U Q. B. 4l"_'. committed the'trespass, is n.,tsul1i..id,te'
Hehl, that upon the evidence given in this ; 'i** •<,^™ll■■'t" *'"■. ji'^ti^'t- to entitle tlic chm:
case, a jury might assess several damages on each "-'''"'i' =i" :ici|Uittil under tlic si.xtli .scrtmn
of the tiiree' counts, the two tiv.st being for -•* "^:"- J I !• <-■■ ''+■ K'thr \: (.Wiiinill
assault and imprisonment on different days, and *^i- '^- l''^'
the third for ni.alicious proseoutiou. Apiileton Held, befori' the Hi Vict. c. 17!i, tlut
ipei
The issuing of a warrant of coiimiitiuca
non-payineiit of eo.sts of ,an aiijical, uii.|,r|
;t;{ Viet. c. :?l, s. ",, is di.-crctionarv ii„t|
imlsory upon a ju.stice ; and tlio court will |
tore on this ground, as Well a.s ui„m tli.
8. A'r' Ih'liliKii V
•21 <!. 1'. otj;}.— ('. ],. t'lianih, lir.ii,
IX. AcrioNs Ao.viNsr MAiiisrinTi-iii
In tresii.ass against a magistrate fur full
V. L<pptr, -JO C. I'. 138.
6. Conln.
trates Were not liable f(n' rcfusii
bail on a charge of niisdciiicaiiniir, witli'ii
of malice. Cuiinii/v. McKi unii, l\ i)Ai\
AVhere in an a]iplic;itiiiu to set asiili'
ings (.as in the case of an action against al
On the investigation of a charge under tlie Petty
Trespa.ss Act, 4AVill. TV. c.4, before magistrates, ! of the jieace, for acts done iiiuiur a toi
tlieycominittcd the plaintiff for contempt, and the which has not been (piaslieil) the i!i
plaintiff having sued them for false imi>rison- upon would be a plcailahlc liar tu tlie;
ment recovereil :- Held, that the action did not ; laches will not be imputed to (leieiniaiit
arise in consecjuencc of anything done by the ; he does not apply beloru entering an a]i|)
magistrates under the act, and therefore a eurti- ] though it might if he waited until
lieate under the "Jlst section was not necessary , expiration of the time for pleading ha
to entitle the plaintiff to his costs. Armour v. I DimvU'i v. Tniart, ."> I'. K. 1':!.").- t'. I..
BvKVi'U fl <(/., C 0. S. 450. I — Dulton, C. C. .0 P.
KrNdSTON ^MAIiFNK HAII-WAV Cd.MI'ANV.
L'ddJ
filet < iif tliit; ciwu wi_[v
liint \i> till' iircitci'tinii :itf,J
■-'t't ; mill tliiit tlic \w\\\U
»t:it\lto to jiistii'L's, a, |.,,j3
ciwts, iuv mil civiKvllcl 1,^
|."> Vii't. c. :.4. A''.U,7
H'tih, lit,). 1'.. (iiiii,
,crc' Knuiulit auiiinxt a junti^
Ihi' iiMiirisdiiiiK'iit. Uii' tin
I, )V Vi'Vcllrt I'llf tin; jilllUlliH
«• i)f CI lOs,, iiiiil ill till' i,ty
t tlio 11 i\ 1.") Viit. c. ,"i|, ii|ii
lilltitVwasilltitliil tnlli^ fllll
Ki' III V. /I'in/i, /■'I'/i/ili; V. ,
. I. "),"). IlliVlirl'.
illtilV was ll'^trUlcil 111 tllr 1
L'u L'l'lits (laiiiiij^is, lie was lle|
;() any in.-ts. llolil, aUn, ilu
I sm'tiiiiin (if ('. S. I'. ('.
r, iiiiint lie liiiiittil "til liny
iviiU'il I'lii' ill sottimi IT "i tli«
ilsii, tliat nil imo can luivu
ivliiiiliil imt incur oiistrt. //|
10 L. .1. 270. C. 1. CliM
5 (if a warrant "f ciininiUnieJ
(if (justs 111 ail ajUical, ihhIitI
, s. 7"), is iliscntimiavv, iiiitl
a justice ; ami tin; cnnrtwillf
;r(ilinil, as Well as Ulmli tin
y siilij^lit til lie cuiiiiiiittiil 111
," jiai'ty til tile aiiiiliciitiiiii, rel
I issue it, if tliislic tlic iir»|irj
II tliis ease it was liuM im
.■iiiiilieatiiin slimilil tiavc luir.j
e. I'Jd, s. S. I!' Ihhiw'i V.
1'. r)0:l. -('. li. I'liamli. I>i;ip
(■■[■IdNS AIIAINSI- MACiSTlnri-a
IS a"ainst a luaLiistratc fm' l:ill
anil sei/ing ami
clliii''
he sutlers jinlgiiicnt !■>
|isary fur tlie iilaiiititl' tn [n
if ivctidu tir cuniiiiiiicfl
■;ix niiinths.
MnU V. J/mJ
lisiiiii liv a c'li
istalil
stices, that a palicr jim
.py <if the \y
irraiit iiiiili i .vu
<iiass, IS 111
it suHk It u; cV
tresp
justice t
ittal uniler the sixth sivf.nnl
iititlc thi
U.
Kiihii- V. '.'"/•/.
the Hi Vict. c. IT'.i, tlKitj
t lialilc for rctusiiii; tn
llVgO III
XVuiiniij V.
f uiisihiiicaiinnr, witH'*
M>K^
(IIIII,
I,'. 1!.
an api'
hu case
ilieation tu set asm
lit an ac
ajii
timi against a|
amtci- a a«j
luashcih tin; w>'
■iilalilc har to t!i«
utcil tn ilciollil:ilit|
lyliefore entering all alT
for acts
I IK it Itfeii
|l liu a iilcai
it lie imi!
ht if he wai
tcil until
lingiiii'H
If tho time f(ir pleading
\'l\<i»r>, r. I'. K. •■!••!''•■ ^'
iinti
I liv ii>'lvl
, til till
llliiiiiluecil a warrant furliis arrost,
iilaiit, II ■!. i
tnr nut timlini;
|l,y ilili'Ui
[I'ili. "I'C.
II iiiii'siiaiict' ot nil (U'llei
Ilelil, thiit miller ('. S. i;
;t, 11(1 ai'tidii wiiiilil lie a;;.'iiiist tlu
laiit
rffiti' I'"" ="'.^'
til
ini'ddiie iiiK
ler tl
(till'
le order, or
arrant to jniieiire the a|i|icar,ince of |
until the .same wa.s i|ii;is
■j;(('. I'. I.Vi.
heil.
>liriiitij
iiUIWll
iiiy eonvietioii or order lieforc
Kir.MNii.
iSVc CitlMlNvi. I.\w.
KlXii'S III'.XCll.
iSit Ot k.kn's lir.M II.
M.jh.iiiiii/ V. .sv,/,/.', ,/, ;{! (^ II. r>7
KiNcs ('(»i,i,i:(;i:
ntf ill !' ''"'
i.iiit ttlio al
^,,l,irliiif his I
nlli:!!'
ItWa i'"iivi(
list a justice of the peace. The |.i^,l,t „f King's ( ViUeKo to leeover for tniti. II
le hroiii'ht iM'for
mi hy a j^iveii in " rpper Canada Colht;
il that the plaiiitiir had ^itt,.). tl
iirth
e load alii
il it,
le passii
lielore am
11' of 7 Will. IV. e. 1(1, In:{7
tin) «iiol, made an order which w.i-
tlv ciiihodied III a iloennieiit purport
I (//'/
( ■nil,
Ih
»,». I!
no:!.
It is no olijectioll to the liyllt of KiliL;'s ( ■|ille;;e
tiiili, whieh .stated that the t"' «"«' lortiiitioii Ljivi ii .after the ii,i>-.iiij,' of the
ivwfuilv took
•rtaiii ewe from '"'t i
1 7 Will. IV
Ki, III
.iliickiiii
ul Iriviii^
thc'-lth of .lime list, at I'iekei- that profe.s.sors t(
Kii
heard tlit liter of the s.iid , "lnim
that tl
u said ewe aiK
KlI)NAl'PIN(i.
■Vc (.'uiMiNAi. Law.
tin
time
:d f
•r.
;r( 'am
Colle
iColle,
had not.
III', liieli a|ipiiinted
//..
Bit. 1 il" ail.iml
thr imipeity of the said W., and I order
iliu.lv tlic sail! .limes lie discli;iij,'ed there-
mi i.'iviiig up the said ewe and lleece to
u'lW. :inil payinj; the costs of this suit."
(t,,«<rc lixcd at .yJO, and the pajier eoii-
iitlii.i;>u;il distress clause, lint the warrant
jiitiii ca.sc (if default, was struck out :
iiaiitiini fur nonsuit, that, ,ilt!iiiug;h the
siiilrMiivii tii'U was clearly nnsustainalile,
illiiViTtlleli'SS lia\e lieeli (plashed liefore
iteni.'lit. ./o/cv. Iltililiii, i;{ I,. .1. Ill-
,-liartliL'li.
X. .Misri;i.l.\SKi)f.s Casks.
Iittv 'ii.-pectcd of stealing,' a lior.se was
1^; ii|i 111 a warrant liefore a magistr.ate,
L-;ii.Micil ami dismissed the charge. The
Ul iii'liviihial pretended no right to the
l»itlu' magistrate, after dismissing the
i^stiii'cil tiie horse to its supiio.sed owner
Ipsiiiiturl, hilt, hefore doing so, took ;i
liiiiiiliiiinity fniiii tin; owner : Held, that
|bi'.v;i.< nut necessarily void, as contrary
lirii.ril pnlicy of the law. liiilliiril v.
|,!ij, II. ;!I7.
BU'tiiin fur assault and battery, a eoiivic-
■ same assault under the Petty Ties-
liitimist lie iilcailed, and cannot he given ■
fell umler the genoral issue. JJinci/ v.
,:[.'[. 1 i\:l! Vict.
.llsriFICATlUN.
)iBm,-.VM; Hai!..
|(iiL!i;k,i, and Slander — See DKKA.vi.vrioN.
UTtF.sl'ASSRS— .S'rr TltKSI'ASS.
Jti'iisvEKsiox— .V'^r- Trovkr.
fSiEf, MuXICirAL Bv-La\VS ItEUAKDlXC
i;hvvay.s Si-e Way.
Till! jilaintirt's, liy the name of the rp]ier ( ';iii-
ada ( 'ill lege and I loyal C r.i to ni;ir .'school, deelared
in covenant on an iiideiitnii made Intweeii tin-
ehaiieellor, presiileiit, and scholars of King's ( 'ol-
lege and the defendant ; llild, on ileliiurri'r to
the deelaratioii, that the elicit of the statutes I'J
\iet. e, .S-J, and l.'t it II \'ict. e. tl>, w.is to trans-
fer tile covenant fioiii the I'liivcisity of Kind's
( 'oUcge to the pl.iiiititl's ; and coiiscipieiitly .^avc
them the right of judperty in the iudeiitiire de-
clared on, and eiitilhd them to recover t liereim in
the name used ; and that proof that the covenant
was made on liehalf and for the lieiiillt of tln^
lilaiiitill's, Would not he eoiitradieting the deed
or eoveliant. '/'In /'rinci/in/ iif I'. ('. Cnl/fiji iiinl
/{iii/ti/ Urn III mil r Silnml v. Huiilltin, '1 { '. 1'. ;!'_'(!.
KIXtJSl'oN j'.ANK CO.M.MlS.sloNKKS.
Where ill delit on an aw.ird made ill favour
of the Kiii;;ston Hank Commi.ssioncis, nnder the
lOdeo. I\'. c. 7, the ]ilaiiitills in tin ir deelara-
tioii set out an award that the defendant shoultl
pay C!M)0, in hills or liotes of the hank, or hank
eertiticates, or orders for stock hy a certain day ;
,ind assigned as a lireaeh that the defendant had
not paid in the terms of the award, liiit did not
negative jKiyment in money ; tin; declaration
was held had on general demurrer. A'/'/i;/.s7(j».
Biiiik t'iiiiiiiii'<-'<iiiii)rx v /iiiliiiii, K. 1', .'{ \ iet.
KIX(i,ST(».N, {C\T\ (»!•'.)
Although the Viet. e. 7.">, incorporating the
city of Kingston, had In^eii reiiealed, yet so hnig
as no new assessment law was passed the same
residence was a necessary (iiialilication for an
alderiiianof Kingston as formerly. I'lifnin i.rnl.
nnrt/iffr V. (yj.'iillii, iSg. H. (il7 ; li'nihiii <:r ril.
lAiiliiii V. Jartioii, "2 C. L. Chanib. IS. -Draper.
/iKjiiiii <:>■ n I. liitrtliil'i v. Shitir, 2 C. I,. Cluunli.
loU. — McLean.
KlNf).<<TOX MAIUXK llAILWAV C'OM-
J'ANV.
Under 1 Viet. c. 30, and 7 Vict. e. Ki, the
I Kingston Marine K. \\. Co. may give and re-
I'ii
,n
if ii I- i
coivL- i)ri>iiiiHH(trv noton iti tho <'<mnti' of tniiiHiU't'
'iij< their U'),'itiiii-»t»' liiiHiiicxH. Kim/.^'dii MiiriiK-
II. II'. r.(. V. Ut^iiii, 'Mi. It. .•Jf.s.
Ill lll-uIllHUK IIIMIII Hllcll lUltcN, tllC IllllKltillH
ncuil not iiMT tilt! I'oiiHiiU'nitioii ii|h>ii uliicli tlu-y
MtTu rt'i'i'ivcii. //(. I
Till' oniiHMioii of till! wohIm " vnliic received"
in II iiott', or the I'lU't thiii a iioti' Ih niiuli' iniyiililc
ftt a certuiii tiiiu' after <\\\V;, iillnnl.t no iiifci'i'iicc
that HUt'ii iioti'H were taken in vinlnliiin of tlie
I'laiiHe of the eliarter |ii'ohiliiting the eoiniiany
from liaiikin^; oiieriitioiiH. Ih,
KIN(1ST(»N, (TOWNSIilP OK.)
Senildo, tliat the eaHtern hoiinilary line of lot
12.') ill the tirst coneeHKion of the towiiHlii|i of
KiiigHtoii, iH a liiieilrawn from the iiortli-wi'Mt to
the Hoiith caHt aii>{h' of naiil lot. Awanl of the
iMiiinih'irv line eoinniiMHioiier« set UHiile. .Miirii'ii
V. M((rl.'l<iiul ,1 -(/,, (i (». S. -J-20.
The eaHteriiKiilelineof lot '-Min tiie front or tirst
C'oneennion of this townMhi|i, eaiiiiot lie niii an it
is (UiHerilied in thu ]iatent, or iiaraihl to the
weMtern limit of tiie towiiMliip, aecordiii),' to r>'.)
<!eo. III. eh. 14, lieeaii.se that «imM earrv the
conees«ioii heyond tlie line whiuli hum originally
run an its eastern lioiindarj'. Diti' d. Sfaiai v.
Fiii-MlUi, I i.}. 1(. S'.'l.
X. llKmr ..K, ON Al|.|.„ AT,..s, ,,„
IlllAI. .v., Nkw Tiiim.
XL Is MOVIN.I A.iAINs, l„„K...M,,J
•W I'liArri.l; Al I.AW, ^
XII. Is l'i.osK.rT,oNoHliu iNi:,,,,,,
XIII. (In I'Ain uy I'liiN, MM i\
S.HKTV TO |I.,muk,;k' s,', (.J
I'AI, AMI Si liKTV, "■
In KxKririN.i Wiut^ ■S.,Sm:unr
In Knkoi!(|n.j S|.k, III, |.n.,,,„
"KS.U.K.iKl.AM, .VoS,K,„;;
KdHMANlK.
X I \'
XV.
I'l.imtifl in eje.tmciit, tii...,-!, .•inii,f„if
III iiei-Non. heleiidinit heeain,. iiM;,ie,',i t'h
faiK'V at the first trial, l.iit t(i.,k u„ , | J
until aft.^r the .-^errii,,! t,i,,i. „1„,, ,, v,r,'|i'c3
Ki\ ell against hini iur i,,,,, ,i,,|„..ini,„.
then move.! to set aside tlic |,r,u,,..li,|,
ground, and for want ot pinp^^^r imti,-. ",| ,
Held, that di'feiiilant W;i« |ireilii.k.,| |]
dt'lav, and the eourt refused tninu.n, |.^,
V. hiKiiiii, '.\ I'. I!. It; (^1. |{.
home nine years after del.-ndaiit li,i,l „|,(
lii.s discharge in insnlviiny, tliu
scheduled cri'ditor, issucil
»iJt^
i-.\Hm'i!i;i!s.
.'\ iiersnn hiring liiiiiself to work w itii his own
team of oxen, is not within the British statutes
for iiuiii.shiiig laliourers deserting their service.
Wlii'Uin V. Siiccii", Tay. 4'M.
LACHES.
I. In Aitmcation to hkkki; .\ii'(ii;nk\s
Hill— .sVr Attounkv anhSoi.iiitok.
II. In I'hkskntmkntor Notk r. i)k Di.siion-
OIU (IK Hll.l.SoH NoTKS Srr BlI.I.SdK
KxilIAMIi; ANIl rUdMISSoHV NolKS.
III. In Ari'i.viNii kok SKLrmrv im; Costs
— .V('(- CosT.s.
IV. In ArrEALi.so.
1. From Superior CmirtK — ,Sii' V.n-
HOR AND Al'l'EAL.
2. Fri»ii Mnxtcr — Sec Pit A( tick in
K(,pnTv.
V. Is Ari'i.icATniN.s foh Injin'/tions — .SVt
Injunction.
VI. In Ai'iM.ic.vrioNs to Skt asidk Judii-
.MKNTS— ,SV(' ,1 UDdMKNT.
VII. In Al'PI.ICATIdNS TO KeDEE.M MoRTflAdES
(SVf MoHTliAdE.
Vlll. In Al'PI.ICATION.S TO yiASII Bv-I,A\VH— ,SVr
MUNICIl'AL COKI'OKATIONS — PlllIJC
Schools.
IX. In Peufohmance ok Conditions kok
New TiuAL— .SVc IVew Thiai,.
f , ,, , . , '' '1- la. <'.iin|
teiiilant s gooils on a iiidgiMcnt reidv.ml
the ilischarge, contciidiiii.' tli.it tlicili.vjurj
Voiil, liecause detfiiil.iMt li.uj, iiicviiiih
assignment, fraudulently all,,M,.,| :i jiMynj
he recovered .■igaiiist liiiii and his ii,„.t^
and also liecause, hisiw.sets licinj.'M,t;ikiii,|
w;is nothing at the time of the as>i|.'iiiiier
which it coiild o|icr;vtc. It a|iiii;iiiiCli,
that the jjlaiiitiir ('lUiscntiil tn tlir ,i>m'ii|
and (lid not apiieal from the iinlci- i.f i\\V\
nor clid he, whi.'ii the discliarj/c wa.- Iimiii?!
teil, raise the ol>icction ol imasscfs : "
the Ii. fa. goods must he set asiilc ; mA i\t
plaintill's remedy, if any, wa.s hy artinn
ludgiiieiit. Seinlilc, Imwcvcr, that the |.|j|
liy his conduct and the la|F>c nl tiim, w(
ciudud. I'urh v Ihni, '.'4 ('. I', dill.
The delay in ino\ lug to have an aw.mll
ted hack f(U' correction t'luiii the '.'1st i
when the aw.ird was niailc, until tlic4l!il
lier, was liehl sullicieiitly ac.oiiiittil I'.ir |
loss of the nisi ]iriiis ivcdvil ami <iilp
Strinir/ V. Il.i,tf„,:\- 1^1. ii. 5;t8.--.\.W)l
ting in vacation.
Ilelay in liling a hill to eiifnni' ii i
agreement for a ijartiier.^hiii, \va>
sullicientls accountcil I'm' liy cviiliMiit- .if I
answered liroiiosal for an ailiitratinii, iiiiill
res\iondelloe hetwecii the |ilaiiitill aii^
tors liufore .suit. Ilinj'jtu'l v. AHnn, -I I'l
A defendant in ejectnieiit lileil a hill im
the action, alleging that the ilinl iiii'le|
th'j iilaintiir claimed was a fnigery.
was dated ahout tifty years hfi'mv lliuj
tiled, and the four witnesses t" it wiivdl
fore the validity was inqioaihi'il in
The court disnii.sseil the liill \vitlii'n<;.-.
MrMithiiil, .') Chy. ()4(i.
A creditor lironght an acti'.n .i.'.ii
debtor to recover his deinaiiil, wliiili "»
by an arrangement made in Ui.tnliir, IS
I.ACIIKS.
:'()()0
(, ON Arri.nA'riiiss d.i,
—Sr- Nkw Tkui,
n; AiiAISsr lltUM.ri \i;if
llAcni K AT l.AW.
iMTii'N "> I'll. I !"» Kwirrv^
rirr. IV Ki;i ri\,
ir (iK I'UISi II'M., 1'.' IIT
IN ru iMsillMiCIK >- I'ki
\M) Si IIKIY,
rTlS<: WlUT^ -.S'"' SlIKlllI'll
UK ISll Sl'KI ini- rKUKul;)
Al K iiK l.ANli >■" Sl'k.i IHr
HASfK.
jt^i'tnu'ut, thiniuli nniiifniit,!
fcuiiuiit liiiiuiit: iiwiiff i,f tM
lirst ti'iiil, liiit tiinU nil i.Kji
Hffiniil trial, wlicii a vitilici
liiui fur I'll" iiinii'^ninii;.
, Hit iisiiU' till' iiviiri'i'iliiii;
ir Wiiiit iif iiri<\njr imtio nt
.li'l'i'inliuit \v;iH \irfilii'i(-l
. I'liurt i-i'fiisfil tiiiiitiiluv.
'. It. It; ii- 15.
yeacK lifter (UMiinliiiit liuil i.lil
'. in i\i!<iilv>iii'y, ttie iil.imlj
rilitiir, iHsiioil 11 li. ill. au'jia
,l(, oil .1 iiiil^iiiii'iit ri idv. r. 1 1^
. ,.,inti-'iiiliiii;lliiittli>''l'" '="■!<
'.' .Iclciiiliuit liii'l, I'ri'VMH.
friiuiliil«'iitl.v iilliiwiil a j'i'i;"i
a^iiinst liiiii iiii'l lii'' ''"'■'*
•ausf, liif* ii^si'ts lirili..: Ml tak. l^|
lit till' tiiMc "f till' ii>M:;iim«r
l',l oiH'i'iiti'. It aiil"''iv^'l.
uiitilV cims-iiti'il til till' a>Mi,l
,,ni.,:;il friilii til.' ih'iKt "1 ;1"<-1
whi'ii til.' .lis.'Uarjj;^' was L. mil
.,,l,jt.otiniiiif ii"ii««''^: '''^
mIs must liL' si-'t iisuli' ; ami th
ii'.lv, if :i"^"' ^^"^ ''>' "'■"""
Si'iiil.l.', Ill iwi'Vi'i'.tliat till' I'l
,„.t luiil tlu' laiiM' III timi , ^
iniiinviii-toliav. aiiauarl
.i.oi'n'<'ti.mfi"ii'w; '--';''
vu'ilw as iiiii'l'^'i ""<''''";■*'
1,1 sullii'ii^'iitb' iiauuiiti'il ■■■
„i,i iii'ii.s .v.'io;il :ii» -
l^„//;|,,:<T"^ '•"'•'*'■ ■^■"•'
Itii'ii-
,ili„. a l.iU tn I'lifiirii
.'.,, .,, lartiic'i'slini, ; .'
l;»co.niit.'a f.ivlivi'Vi'l''' ,
Jn.l.osalfii.-a..a.'.t.itwM.-l
ii!otw..'utiiM'i^'>»f"' ;
,,„tin.']..'tnu'..tliWali.llt^
li,ll.'-ili^' tliat till' iM "'"^
Lf.i.u-Nvitu.s.ost,i, '^
T.li.litv was iiii\icai;li'-"l 11
£.Ui'atlK'li.lU.th->'"
I rii'iiv- '''^''-
V,rcint'..t.ua.kMuOaoUr, H
{
. ,i*.ii(iif<l t" *'"* i-'ruilitor the Iioum* and
,„,ii|pi>''l l>.V till' ili'litiir, ill HiitiHt'ai'tiuii
ll,t r,iiit ill I'liiiHiilt'i'iition of II fiii'tluTKiiiii
III hiiii. "'"' •'"' tw" .V'""^ III' ii'iitiiiiu'il to
L \\\y rent nf 111'' |irriiiim'M, wlini the crrili
rfL||f,l lIllSSl'SHicill liy t'jfctllU'llt. Ill l>(.'-
IS.V), till' 'It'l't'ir lili'il liis lull HfttiiiH ii)!
, traima. tiKii wii» a iimrtK'aK''. ulU'KiiiK
..airtv liail, ill the liicaiitiliii', )il'i'Vi'lit
r, III tiifnri'iiig liix ilaiiii. 'I'lii.' iniiit,
lining '" <li'*i>ii'*'' ('■■' I'iHi iliri'itcil uii
r. j,itl„. iiiu'stion iif iMcirtifiij,'!) (ir iin ninit- '
[ ir,i/,ii/i V. Miiiirti, ."> ('Ii\. lit»'_'.
v,tt lU'ft'iiilaiitM Hi't up a (k'fi'iii'c tna Kill,
iMi'iiiilil''< ^^""''' liavc fni'iiicil xiitlicii'iit
i„rtlii'i'' iiaxiliK tiikili wti'lis tn set iisicli'
UlMcIliill, Nlilil'll it Mas llnW Silll^'llt tci I'll-
Lktliiiilii"' ''""^' *"'• »ltli"iinli t"i'lv(,' yi'ai's
ta,«il iiiiiii' till' lU't wn.' iliiiif Mliicli tlii'V
ami w lii'li >( ^^ ">* hIii'W 11 tin y hail ail
Ctlf ln'i-'li a«aii' iif, the I'liiiit niili'i'i'il tlirlii
,llieiiwt»iif the HUit. .V(7/r/' V. Osti-'iii'ln;
,rtv is 11" I'Xi'Ust' for ili'ljiy iii iiiakiiij,' an
ii'ii tn till' ciiiirt, iiH ill such a I'aHi- tin'
Lj„ii|i|ily ill hiriiia iiaiiiicris. IhirriM v.
[,|iliy. I 'iiiuiih. ■--'.'. \ anKciiighiit'l.
iinirt ill this I'liMt' helil thi' iilaintirt' cir
Lrvili'i'iii iiTtaiii laliil, mi jiayinuiit of tliu ,
ji.f the ili'fi'iiilaiit's advaiK'i's, although'
Lursliail claiiscil ln'fnrt.' the jilaiiitill' (ilcil
iwaciiiiii; till' traiisai'tioii tlio cxi'iise
Kiinrtln'ihlay lii'iiiL; liis pnvt'i'ty : it ii|i-
Kliiattlit'liartirs ('11111(1 lie rcstiircil to their
li«i»itiiiiw H itiimit hiss tn the ilctcinlants.
\V,,M,„, U Chy. -'14.
^'ji,.iri»initi'il trallill).'^'(lllljlalli(^s af^'ruod hy
iiiilirtlii'irciiriHiratc seals, tliediii'tn eciii-
leertiiii wniks fur the nthcr, which (ill
jiimvri'tii 111' ilisiieeted liy eii;,'iiieeis on
|.i tjili III the eontraetiiij,' parties, and
litfiitniieers apprnviiii,' nf the works and
( tliolii ius completed, they were tii lie
hliisiiiiii as L'oiiipleted liy the |iarty fur
(llitv Ki'I'i' ilnlie, wllii Were tn lie fur ever
Wln'iiiililiyili;^ or eontestilig the due and
ft\ftUti"ii. oiiiililetiiili, and aeeeptance of
^(k-. Till' iiarties tn porfnriii the wnrk
lii tiny aili'i.'ed, eninpleted it, iintilied
Kiitlnri'iif, eallinj; llpnii tlielii tn appnint
(iinr, .1.- sti|iiilated for, which i'i'i|iiest was
■iiiii'l «itli, and sul)sei|iiently a pnrtinii
tk« iiiiitrai'ted for (a liridgel was de-
Miiiiliill lilt'd fur the piirpnse nf enin
liii;im'|itaiioc' of the wnrks, the Court
ktht till' ik'lay nf one of the eontraetiiig
Mntil lifter . ■such destruetinii, tn name an
tisliaillii'eii stipulated for liy the agree-
lilintin'irliiile the nther frniii nlitaiiiing
Ktiiiu iif the works ; hut that such in-
•Mul iiiiiniival iiuist, under the circum-
lidbi liy a reference tn the iiiastor. ■
■jliiK't, ('..iliiliitaiite. Till (I'liiit IVifi/irii
I'i.v. Til' Disj,iriHn.'< CiiniilCo., !• I'liy.
\iik:m.
tithviifa party to eufnree lii.s claim at
mks nil ^'iiiuuil for this court interfering
itpl right, altlmugli it might he a good
Iwrtlit sftkiugspeeilic performance of a
itktR'. Alliiii V. Xiiriiiiiii, in Chy. .'I(i4.
l»u<,iUii8c (if fourteen years after the
limoviyaiice before the bill for eompeii-
mitidii wiM lileil, the heir liiivinx liecn n iniiior all
this time : Meld, that the vendor having eauMcil
this delay hy his nw ii arningenieiit with the in-
fant's relations, which depined the infant of
their pi'oti'ctinii, this lapse of time was no liar to
the Hllit. i'n,:iiitli V. ./nliii.-iiii, 14 Chy. (i;<l».
.\ purchaser at a sale under order of thii cniirt
was held lialile for inteic-t frniii the time nf hiH
purchase, althniigh delay had taken place in per-
fecting the title lor which he waH in nn way
I'espoiisilile, such delay liowevcr not heilig caused
hy any fault of tlii' veiidnis, the conditinii nf
sale stipulating fnr the payiiK'iit nf interest from
the day of sale, /ii n 'I'lniiiiinini /{ii/'jur v.
/);.'/'..<,»,•_> Chy. Chaml.. I'.K;. .Mowiit.
Semlile, ill the iilisence of such Htipuhition in
the conditiiiiis nf sale the cniirt wiinid relii vc the
purchaser frniii the payment nf interest w hen tho
dcl'iy was lint of his causing. .'*>uch stipnl.ition
in the conditions of Male is not to lie .ippinvi d
of. //,.
'riiree nioiiths lieforc tlie tiling of a hill respect-
ing partnership accniiiits, the a units had liecii
furnished, in which interest and cnmmiM^inii had
heeli charged, and liniu^ nf the ]i,'ll'tin'l's had lie-
fnre suit suggested their nlijcctiniis tn tliesi>
charges: Meld, tliat they were lint precluded
hy tlie delay fmin olijecting thereto in the suit.
Jiiri/liir V. )/i)/h; I!) Chy. 7l>.
The goods of the testator were, liy arrange-
ment lii'tweeii the executors, allnwed tn lie taken
liy niic nf themselves at the price nf .S'll.'), after
the s.'Uiie had lieeii \alileil liy appraisers Jit
.'57.'1.'<.I!!>. On an appeal frniii the master's re-
pnrt, charging the executni'H with the lesser siini,
it was shew n that the appraised value was rc'ii-
sniiahlc, and the court in I. S74, ordered the exe-
cutnrs to he charged with thatamoiiiit, and with
interest from the time of the appraisement in
IS.'iT : the la]ise nf time not lieilig eniisidereil
siilliciciit to liar the right to interest. I'lii/in i/ v.
fiiiliiii/, 121 Chy. I.">:{.
Kxecutnrs with a discretinnary iiower tn sell
their testator's real estate : - Held, imt lialile,
niidi'i' the circiiiiistaiices, fnr Inss arising frntii
deferring a sale. Hut where they kejit the pro-
ceeds nf a sale in their hands, witimut paying it
intn cniirt, ]i('liiliiig the suit, tlii^y were charged
with interest. Mi' Mil Inn v. MiSlilln ii, '.'I Chy.
:t(i!t.
I''xecntnrs were eiiipnw elcd tn sell the leal
estate, lint the widnw refused to liar her dower,
which the exeelltnis were advised liy counsel she
was entitled to elaiin. In fact, according to tho
terms of will, she was liniind tn elect, Imt the
exeeiitnrs hniiestly helicved she w.is entitled to
(Inweraswell as the |irnvisinii under the will,
and refrained frnin selling \i hen they cniild have
d(Uie so to advantage : Held, that the execu-
tors were not responsilile for any loss sustained
liy reason of the delay in selling. I li.
By a deed of gift from a father to his daugli-
ter it was intended to convey a life estate to tho
daughter with reinainderto her issue, hut throiigli
the WMit of skill of the person ]irepariiig tlie
deed, the same conveyed the fee simple to tho
! daughter, whose interest was afterwards sold
, under execution, the sheriti' at the time of sale
j distinctly stating in the presence and hearing of
i the purchaser that the interest he was selling
1 was only an estate for life of the defendant in
20b:
LANDLORD AND TENANT.
tlie \Mit. 'I'liu 1 iiirliMMr iiftciwiiKls claiiiicd till-
ftiL' ill tlic lanil.s r.iiili r till' ttlliis (il' tlii'dcul (it
<.;ift and cdiivi yriKc ln>iii the tliiiitl'; v> In iv-
iipcii. iiii<l miujinls (it littfiii Vfiiis aftiT tlif
^lurill's siiU', !i liill WHS lilcd l)y tliC' iliilditii ot
the (iatinlitir, MckiiiL; tn liavf Ixitli the dcfdn
iLi tilifd ill accdidaiKO « itii tlif true iiiti iitii'ii
of tlii'^iaiitor, t(i wliicli tin; dttciidaiit diimiiifd,
on tlic (,'1(11111(1 tliat till' iilaiiitills had iidt sIilwu j
any iiituivst in the lai;d : ll( Id. tliat tlio jilaiii-
tilis. tlimijili viiliiutcc IS. liad ^lu■ll an intcir.st as
I'Mtitli il tliiiii id liavo tile d(.i(ls rtctitifd : and
tliat their dulay in liiiiiii the hill was not .siiili
.•l.H, illiiU'l' the lilvlllllstMiics, i-lidiild (k]irivt;
tliiiii dt tliiir riylit to lolii't' mi tlii' uKuiiid of
hnht>. Cilnr/ v. Liii/ai. -Jl ('li\. 470.
I.AIMNC il'.II.Ls (IF).
a I I'.ii.i- ill I.aii.:m: AM' W \!!Ki! II ^i; Kr.
( 1 : 1 1 r--
i.AKi: sriM:i;iiii: n.wicai'Ki.n cdM-
I'AN'*,
I kt
I'lidant siihsi^ri
hii' I'titain sliaifs o
|ilaiiitills' stock, an ini
•-'7 iV
rt'i|iiir(
irattM
\'iit. (.■. 1';!, and IhhiiiiI himself t
(I hv till.' hoard of diiietors. .'>
coiniiaiiy iiikIli'
(I ii;iv as
lUiiiw nat
ovLT half the
ital .' toik was siil)S(.iiln(l for in
tills way : Mild, no aiiswii' to iilaintills' (.all on
dLfi'iidaiit for the aliioiiiit of iiisstoi.k. that there
and defendant i
: Meld, also.
.11 lid allotiiielit ol shall
.t th
•rehiie a sharehiilder
that |ilaiiitiHs were entitled to call in all the iiii- i
[laid stiK k at (Hie time, as the Aet did nut \iw- j
vent their so dmiij:. /.'//.' S)i/ii r'hu' Xiii'iiinlinii \
i'n. V. Mnn-U,.i,, -J-JC. 1'. •_>I7.
Til
statute jirnvii
led for tl
le issue I if letters '
|iateiit on halt the ea]iital lieii
thoiiudi no ixjiiess |irov
KUliserilieil
isioii was made as to
vheii tl
le (oniiaiiv sill
nh
eiiiiinu'iii e
hllsilii
luit the plaiiitills had eoiiinielind Imsiness \\\t\\
deteiidaiit's lull kiiowled'
fleeted and
iiid he w.is, in faet, j
a( ted as a director and never re- i
ihl
signed his |iiisitidii as siuli : Held, that he coiih
not deny his iialiility to [lay his stock on tir
iiroiind that all tin; stock must he siihsenl
)t;lore calls inil
lid \„
lie
ilircetnra were warranted
tl
and that the
11! act in eoni-
ineiieiii^ Imsiness, one half the stock lieing I
Bilhsirilied, and in niakili;; the necessary eaUx
therufiir. 111.
LA.M>.
I. Aw
US liri.AriNc to
.AnitiiiiAiioN
II.
AMI .\\\ Villi
l)i>( HirriiiN or
Dr.Kii Wii.i
III. K\i;ri •■tins Ai{Aissr— .V(( Kxhiition.
l\. KXKtl Tuns AMI AliMIMSTKATuUS |)KAI.IN(;
w.iii .SV<- KxK.i inui.s AM) Ati.Mists-
\'. I1kki:( r oi- .Jiihimkxts -.SVc Jriii:MKNr.
Vl. Sai.k uv—Str Hai.e ok La.nu.
:'i)
I.AM)L(»I!I) AM) TKN \>^|-
I. I'oNTKAITS liil: l.i.AM.s,
I. (li'iii ni/li/, '.'(IKt.
-• '''■""'"'";'■ ^/('^^-„./^■/,,Jo| I,
:i. A//rni/;,„i ,„„/ r„ „,.,//,„;„„
1>KKI>.
4. T'liii,,!-,/ ,,/ M, .,■!,, „,,,„■ /„,;,,
hndl S,, .Mdi:in,;|._ '
5. Sjiirhir l'n-/,.,-i,ht„n „i'^s,.
ciKii- l'i:i;idi:\iAM K. '
1 1. I.i:\si:s oi; Ai;i:ki \n;Ms \ii;i;i.;i.\
1. i!,ii, rulhi, •.'01 t.
•-' l'n,l,,- I : Virl. ,. :t^ .,^ ;^ .j|,|,
:i. !'„■/' r /.; ,[■ i:,v;,i. ,■ : i- y /
'•.:«', •.Mil7. ■■■■m
III. <ifi;i;ATiii\ OK till; Stmitihi Ti u
•-'017. ■ '
IV. CoNSTIM irioN i\l (l|-Kl;Aril.\ Ml l.i.v
I. y.. iiM^ I'liil, r i/„ Sl„,i-I /■'.„■,,,,
•-'01! I.
•J. I'lirlifiil.n-
ir.i,i/.s -nvitt.
4. C.
'Illllll llf III, l,> I'll'/ lln
v.
(>,.<
l-iii, -.'(l-iL'.
.■/-
• i. ( ''!(■( iiiiiilfiii-tjii'ti 1 1:
7. < iii'i limit luii'iri 11/4 I'l
•-'(I'.'.'i.
"/'<.'//«( 1,1, :
S. //;//./;.(/ r,
!>. /':
nul K.,,,\„
•IVIIiKNi r.
Mcr/./-, -.'(Ql.
10. /v
It'll himlx .. .V,
■I.l:l:\.
till, i.wii.
.l/i
lllx 'Sii
Ml
I.A.M
\!N .\\|, Mix
i:!. /,'.
V. I
\l. I
••Imij lln
I 'lliij iii;^
I.
i;asks im; |,i|.i
'(/ (,7, /,. /.,
)-:>n
M, I |i II \l: I !:i;m.\-i,
I. Tiiiiiii/.^iii 't''i'J. •JO.'IO.
•J. r,
X CI.
'r/inriiliiii
('(ii;;'ni:.i|
(•;/// Si, I 'ill la III
4. Jliisliiiiiil 1111,1 W ',:', S<.
AMI Win:.
;"). /ii/iiiii-i S,, Inkam-.
li. Jliir/ijiiijury III,, I M, •'■
MolCKiAlJ'..
7. Sfi/iii-.siriii,!,:-- .nm .'^ii
rioN.
\U. \:\\n\ OK Lksski:. ■.'('.'(0,
N'lll. .VssKJNMKSr.
I . /, iiiliilihi I,/ A .v.ii;;/" ■ , '.ll.'ill. i
L*. L iiiiiiiiiii III' I.I .«! ' . •.'(k;i.
3. Ji'ii/liii iif , |. >.-/'.//(. 1.., I'd,'!:
4. othuCi. ■.!■<, •jo;t;t.
IX. KoHKKii'ri;i;.
1. Jii, l)i.<,-lii
llij A
tiii-j,iiiiiiii'
■2m.
Ill III' II,
3. W,
4. OlhirC,
, •.'o;t7
•jt);)ji.
LANDLORD AND TENANT.
JO 10
1) AND TKNANT.
inl; \,K.AS1>.
(//;/, -JOIO.
;„„ ,,/•/.'•'"""">''■/'. -••n.
dtiii}! iiii'l Cini''! lUii'ii,\i -\
-: 1 1.
// >'.. Mni;ii.\i.r.
'llii- I'l n'l.ililiilin "f >"
flC l'KHiiil;\l\VrK..
i: A(:i!F.i-,\ir,sT> mi.i;k.i.n.
,/,,•/.' \-,ri. ,. ,v. -. ;, -iinn
,/,,■ /.;.i /•■'■"'• •■• ■■''■■^•
,,s ,,K iiir. ST\n iKi.i I'l.v^
017.
.•(•TliiN ^ (iri.KMlo-. uK I.K.I
,,M.--< rn-l'i-'l" >'""•' '■'•"
.„w;.v-/.'v It-''-. -"-"•
jjilhiii III I'liri-li'i-i. -"-■'•
•,„-,;i.i»//>"-V"'' ''■■'".'".''""
;,i:i,iiiilii>;li'-' "/'/'"«'■"
/„,y./;.'' (■.„■-»'-»/«, •:o;«i.
/>„,•../ i:.ii>''<""''"" "' '■' "i
lAiiir.M 1.
r.,„nit^u. v-'.^«>:io.
7i./ ,Yr.H-/'".'/"""'
\. SriUiKNDKli.
1. /)'// Ojirriifh.ii iif Liiir, 'IQAO.
•2. Diliir 0(.<c.v, 204.">.
XI. Tr.N.VN<'KS KROM Yk Mflll Yk VI!, "20 t.'l.
I. MiiNiiir.v TKNANcir..", 2047.
hltin
Sir rii<ri!i:ss.
<l. /■'I'liiii/iili III I!
il S,i DlSlltK-
Kji I'llllllll- Srr IvIK.I 'I'MKNT.
.V,
Prii/ih- Sie IviK.i IMK.n I
VI
I'llll.i lit A I'dll'I'll'S III' /)i.lfi'' :IM /'()(•
Itnil—Sii Uk.pi.kvin.
NiV A I
Mil. Tl-NA
\1V. liKNKWAI.
\V. llKNT.
Wii
Sn ICstatf:.
10. r
.(/ ih-i
■llliilt'iiill -.s'.
I'SK \M)
Lkvsks, 2048.
X.WI. -Iks
1, Tiiin fur /'
»/. 20." 1.
< tl CIl'AllllN.
am's I'hw i:i! r.i |)i
2(),S7.
'J. I'll i/iiii III ill All I'll iii'i, 20,")4.
!i. I'lii/iililf ill Kiiiil, 20r>4.
4. Aii/iiii'iiiiiiiiii III, 20."i(i.
,-.. Aliiili mini, 20.V!.
li. I'i'i iiiiM-i riiiii/iiiliiiiilili , 20.">8.
■;, r,; iiii.<i .^ Hiinil, 20.")S.
5. Enrlinii III' /•j.i/iii/'<iiiii, 201! I.
II. I'lii/ii'iiil or Tl iiiliriif Hi III, 20()4.
1(1. Sltlljl' lll/lllllsl Hi III, 20(i.">.
11. "/////• ClIKIA, 20().">.
I:.'. Altiii-lillll'llt llJ'-Sl-i .AlTAIIIMKN T
111 I • I. iris.
11!. I'ni'i n iiliiil rliii
.\.\\'ll. ArrinNs ai:ainsi' l.wni.ui;
I. /',
-7"
20111
I' ilT'i tn'' It Ni
2. A /I/
Innl ill
III' III.
:t. I I'll! I .{.•/;
/ />.
Kjii-iiiii
201 tj
/,// 1. 1 1 mi-
ll r I'.ji rt-
,\ .\ \' 1 I 1 I.IAMII.I IV '111; Nl l-.V'^i
i;-. 20! i:
X.XI.X. i,KA.si:
I', virr.i.'
20:14.
-X.XX. I.Kvsi: iiK Kill, WW- V.' Kmiww-*
-X.X.Xl. I.hknsi:,- ,sv. I.k i;n.v|:s.
.X.X.XII. .Mis( K1.1.AM.1.1 s (A-i:-, 20'.l(l.
Ill tin' III
n iiri/
iiiii.l-
Si'l- I'lWKI!! I'l'lN VNI>
XX. XI II. Sai
Insoi.vkncv.
!4. /•'"//''>■ ';/■ Mnrlijiiiji
.V. o|. Lka-i:-
sVc lv\i.;n III
iMil.li i-.XKt I T!i)N
In It
III l.iiihililii III Aci'ijiiiit I'lii
-Si'r M
X.XXIX'. ('(IMIT.N.SAIICIV lll'i'KS \N IS l-lll; l,\Ml><
lAKKN ll^ l!\ll.\V\',S S,, \l\\[.-
()iiii:Ai;i:
WANS \Mi l!\ll.W \>. ('llMIWlK-
III III ChlU'iJI "Sir I! KNI' ( 'll.VHii K.
, Arltiiii" iiijiiiiiil Slir rill' fur Si lliini
X.XW. Kill-;, r .
I'l'N \N r-
>'.■ .M;i,irisi 1: \ riiiN \s
' Si:i^i i>i 1; viiiis.
■illiiiiii I
SllKUIFI',
lll/lllll III III
Iwi. \'An:< .vmiTaxks, 20ii7.
llVJI. I'liMKAi 1- i;i:i,\ii\ !■: I'll |;i.|'a:i;> m;
Hni.iHM., 20fi!l.
( 'ilNTHACIN IMli LKASK..-
Ill III
,ll„
A. liv il. I'.l.
iilflMt!
if till' ri'iits, »\:i.'.
111! t'
1'
rt iif I?., tl
. ('iiv,ri:NsAiiiiN iiii: I \ii'i;iivk\ii:ms. imivci. with I>. tliit
iC W(
piiil anil iioi'tnmioil,
mill nil II" lii'fdlV tilt!
•.'074.
IsIa. I'Koi'.'* AMI 1';miii,kmi;nis, 2(17").
I Di I iiNTR.UTS Al I A 1 S SI' .\ssll : N M KM',
Iki. OriiEKl'
1st (lilV of Ol'tdl
UT, UJinll l\(|Uc
St tl) Il
tiiii' li\' H., !'i',\iit uiit I liiiii a Icasi' tn 1
nil 111 Wil-
li' priiiartil
iNDirni.Ns AMI .\i:iiHi:
M'-;\i>
IV Lkasks, 207s.
IHII KiMir OK Tknants rii(' i-;.' L
•JOSO.
FlMl Kl'.s Sir FlXI't'HKS
111' aii|iriivt.'il liy ]\.'> tiiuiiscl nf ifitaiii jirfiiiisos,
10 liiilil fdl' live yi-ai's at a rent iruiu'il ; tlii' said
li'asi! til ciiiitaiii cci't.iiii cnvi'iiaiits ; ami saiii A,
thurt'liy ai^i't'til ti) ilclivcr tn sii.l !?. mi tlie 1st
iif Ootolicr, 200,000 stav,-i at the ■•iIkivc lirulilisfs.
K'l' ^lll■l.■llK
at a ]ii
saiil A. 11
' agreoil tliat siiil
liv saiil .\. t^iat II
liir w liiiii i>. agPffil til jiay
I'taiii ilays ; ainl it was tluTcliy
ill li'as,' sliiiiilil iniit'iiii a cuviiiaiit
iiM lU'livor to saiil l>. ii
P^' N'liTli'K ro Qrrr .VNI) Dk.M.VMi (IK I'd.-- t^'ilill 'it' tllc twn surivnlili;,' ytjais, st.lVcs. \i
20SO.
|»S^ .\'lli.N> .v\|i I'liorKF.niNiiS in LaNIi-
i.iiiin,
1. r,„
mill.
nil fui'tlin-, that 1!. slmulil fiiiiiisli scciintifs tin-
th" iluf |iorfiii'iiiaiK'i' nf tin' .'iliuM.' aj,'ri'i'ini'iit nil
111' hi'f.ii'.' thi' 20tli .la> df .Inly : llt'l.l, that a
ri'iliu'st l)> li. fur, 111- till' ;,'raiitiii^' liy .V. nfsiicli
li'asi', was lint .1 cdiiilitiiin in'i'i-i'ilcnt tn tho liijlit
(a) I'Iiii.Hii.i, 20s 1.
(Ill DiiiiiiiiirA, 2(ts:{.
•-'. Tn.yiiis.., 20;S4.
'^ Di'i ihiililiiiij Tl lilt III ■<.
(ill r mil- r 4 Will. /!'
i.f H. t
I have till' st.ivi
• U'li
, tin
iN'i'iiantH
tn ui'.-iiit the loaso ami tn (k'livi r the staves lifiiii^
iiiit('[n'iiiK'iit. I.iimiinl \. Il'd//, ."> ('. !'.!•.
Dei'laratinii mi an agri'i'iui'Ut. wliorcliy ilctVii-
claiit a;,'ivtMl tn L'ivo aiul )ilaiiititr tn take a loasc
«'. /. <'. S. df an hnti'l
ill i'ni'mitn, ill tilt' ni'iiiiiatimi
if th
r. r
I'liilir
2().S(i.
.'7. 20S4.
.1' .',S' \'ll't.
ilofL'iiilant. fill- ti'ii vi'ars, frm.i the 2!lth "^t'litci
lei', IS7n, when ])nsst'ssidii was tn lii' giviii
; that
ilcfi'iiilaiit'
lirt'lisi' tn
11 li
nnms ill the lin
til
M I'mlir.ll Vii'l.r. Jil, I)., 208(i.
4. Vlhir CiiKi-M, 2087.
w;ui tn 111' ttaiisfi'i'i'i'il at ni' lii'tnrf jinsst'ssinii was
given tn ])laiiititr, wlin was tn jiay a iirniimtii uvto
jtart nf tlio I'dst tlu'i'i'iif fdl- ♦,i' iiiii'Xiiiri.'il [lart nE
rfi
2011
LANDLORD AND TENANT.
'$: m
1 j:'i
the year ; .ind that all the furniture tlien in use
in tlie hotel, ami tiie stoek nf liciuiirs, tic, were
to ^e taken at a valuation, including tlio ounii-
l)U.s, &e., as well as eertain other artieles men-
tioned. The valuatioi> to coninienee and lie
finished on or liefore the 'Jllth Septendier in-
stant, a k'u.se eontaininj; tlu' u.sual covenants to
l)e |)rel)areil ami exeeuted hy liotli parties ; and
that lor the liae [lerfornianee of the agreement
the parties lieianie lioiimi to eaeli other in ?<I()1H),
to he liaid hy the |>irty in default, as lii|uidated
«lamaL,'es. 'I'Ik' tliiiil and fourth eouuts, after
settin;,' out the aijreeiiient, averred that all eoii-
<litions \\v\v fullilled, (exeejit the tendei' of the
Ica-se, whic li defendant waived iiy tendering a
I'iase to jilaiutill' f<pr execution, and e\ce|it the
valuation (if the furniture and lii|Uius, itc., which
clefciidaut wrouLffully iirevinti d ; and that all
tliini,'s haiiiicned, iVc, to entitle |ilaintill' to have
said agreement perfonnecl, and the luemiscs let
to him as aforesaid : and tlu' jilaintill' h is always
1)een ready and williu',' to peiform, and has jier-
formeil his |)irt of tlie said agri'cment, yet the
defendant diil not iterform s:iid agreement, nor
(as st iteil in thii'd count) jiay tlie sl(MM), nor (as
stated in tli<' fourth count) let plaintitl' into
jiossess'on : Held, lioth counts had. for, among
cither rc.isons, nolircach was s|ii('itically allcLced ;
and it ajilieaied tiiat di'fcndant tendered a lease
foi- execution, to which no olijection a|iipeared,
81) that the |ilaintitr «as in detault in not exe-
cutini,' it. I'ifth Jilea, that the valuation of the
furniture, iVc, was not linislu'il on or hel'orc the
'2'.H\\ of Se|ptcndicr, nor yet linished. 'I'lie [ilain-
till replit'd tliat this was caused solely liy the acts
and misconduct of the ilefendant : Hild. |ilea,
gooil, as the valuation was a condition [ireccdent
to the i;ranting of the lease ; and replication as a
<le]iartiirc from the declaration. Sixth plea; that
the plaint ill did not tcndci- to the defendant any
lease for execution, iVe. Meld, hail, as this was
not incumlieiit on the idaintill'. Mighth plea,
that the |ilaintiir did not execute the hase when
teiiili red to himliy defendant, iieiilication : that
the plaintiir was ready and willing to do so, hut
■was iirevented hy the acts and miseondiict of de
fendaiit, Ve. Held, had, for not shewing how
the ]ilaiutitr Wiis thus hindered and prevented
from executing a lea.se lAiiressly tendered to him
for execution. U'u/Lir v. Js'il/i/, •2\ ('. I'. 174.
The owner of an oil well lot, mi which was
also situate a lilacksmith's shoji, which was
known not to he the property of tlii^ owner of
the land, agreed to lease the oil well and lot for
a tciin of years without any express reservation
of the hicksmith's simp ; the intended Ics.see
insisted on ohtaining a Ic.ise witliout any res<'r-
vatioii of such shoji, and tiled a hill for that |iur
Jiosc. .\t till' he.iriiig the lull was dismissed,
with costs. .)/o//'/.s V. /\i iii/i. I,'!('hy. 4S7.
'2. Cl'lill'l'ill III' I'rhll'iDllsliiii,
In trespass c|. e. f. wheit^ tlie possession was
disputed, defiMiilant proved that the |ilaintitl"s
lirother was in possession of the ciose to work it
for til,' plaintiir on shares: Held, that the
agreement did not conclusively estalilish the
r^datioM of landlord and tenant, and shew the
lirothel' entitled to tile excllisi\i )iossession, so
as to [ircveiit the plaintitl from maintaining tres-
pass, /htrl.tli'h r \. Iliilnl,r>tl II. .V.ll.
A case having li,..,, ^„,,„t,.,, ,,^,
I one I the defendant, hefnre tiie I'v i'
.the term, without the plaiutitf ■. 'b '
: struck <mt l.-'«"iiuu. amlii„tlus„wn
to the seal, and entered ainl |,ui,l i,,,, '
that the plaint,itt could nut maint.,! ,,„
against the deteudaiit m, mi, j, 1,.,,,, ,
.1/.'//, \u}. n. -47. '-'
Where a party eiiteivil int,i im,.,,.,;,,
soNved a er..p upon a v. rhal nu.|,.rsta,,i|i„..tl
should have tlie i.t-odiu-ts l|u-i-,.,l Um „n s
time tor occupation wa, lueiitiiin,,! . ||,|,
a sulhcieiit teiiainy '-.as cicUcl to nititl
to such crop. M,il/„,;„- V. F,:rh,n,, sr \>
I'., owning land, agreed with M. .v |; t
should lurnish a tea f li,,|-st.s ,hi„1 ti,,. f
implements reipiired, touetlier ,vitli -ig
and they agreed to .In tlic wm-k ;i> 1^.
direct, and harvest the grain raised; , i I,
was to i-ay for tli,' tlinshiii- ,.| tluir ,'.■*<
•share of the grain ; M. .1 |i. wciv t.. k.. ,,
fences, and to draw ami sow tlic ].i;i,t. i w,
which P. was to fiiriiisli ; tliey iil>" ivr,
hoanl all threshers eiigaged uii tlic pLi.r
all the root crops, and to Ihhim. l'.\ ,],/
to do the haying, and put, twn-thii-iU ,,i
produce ill the harii lor I'., and unt h, l^t
place while their lahimr was ivi|ii]i,d
the hargain to he lor the suiiiiikr an 1 f,
cease when the fall work was .lun,..
next year there was a p.irol aurceiiicnt, v
this, that I', was not to liml the Ihums,
were to have mic-half iii-timl of .uii -tli,,,
crops : Held, not a letting; of the km I .m
giving t<i M. fc M. a term and iiiissi>>
contract for reiiiiincratioii fur thi-ir .i!v
hour, to he perfornied as I', diivituil.
// II III I ill i; I/, 14 ('. r. 'JOlt.
The lessee left the )iiviiiiscs ^iii,| |iik .,
jiosscssion, who siihs<-.|Uciitly pat i1,m
pos.sessioii. In ejeetnieiil 1 y the lo.-,,
were asked to liud wiietliei l\w |i]ainlilf
preinisi's to l».,.so that he liad an iiit
th.cni, which Ju' traiisf.'rreit te iliUiii
wiietiicr l». was a mere cari taker, aipl
w.'is no letting, to liiid for plaiiitilf. I'
loiind lor defendant, ami a iic\\ trial u
Hiiliiiililt V. Mili-iih: |;!( . I'. Ws-l.
The jdaiiititl's ,-i;;eiit nli,.|iil to li.i-o
to defeiiil.iiit at t'MMIa year, |iavali|r 'jU
and defendant assented to tlu' ti rii;>, hu
occupied ; Held, that lie «.is nut liaMc
rent. it was alleyed that alter tin ,le
had lieeii told what the riit wniilil lie,
the key hy the agent s iliieetiims, aii'
examiiii' the house, and leaviii;^ the ke
door ic turned ,iiid said he wmMil take i!,
that this would not have alli'leil tlh i
liitiik- III' I.e. V. T'ln-iiiil, I'.l (,». It. lil,
! Uefelidailt signed the fulliiM iiiL.' iiieiiuil
" I agree to jiay {■'." ithe plaintitl i " I'
his right to till' home I live in, t!ie I'iinn,
sent oci'iipied hy iiie, kliowii as tlh
l'"arm, and the stahles now n.seil hy in
months from the 1st April next:" i
deuce of a letting hy plaintitl tinlelVm
of a sale. Fairlmini v. Ilillinnl, i' ','. B,
\ municipal eorpoiatimi hy liy-law ^'
the defendant, upon certain euiiilitiniis »
hilild a dam ami hridge aemss a livir,
sideration of which lie agreed tn keep it
for forty yei-rs at his own evpeiiM
LANDLORD x\ND TKNANT.
2014
ilant, l)fl'nio tliL' i'x\i!;viid
lUt thu jiluihtilf 's kiin\»
anil' iuiil (Hit liis nwu up|
;iiU't\il iiii'l (mill nut .
;' i;iinlil ii'it maiiit;im ■.
Ililllllt nil >H' ll Iciisi'. /
I •
,y I'lltclTll illlu ^IMSSI■^-lod
11 II VI ilial iiMil.'Vstiinilui-tl
lUMlbK'ts ihl'Vl'nl, llUl IKI g
mil wan iiifiitioiird ; llilil
iiirv V, lis cri'iitiMl to I'lnitll
M lllini'iir V. i'lilliliK, SI', pl
11(1, ii-ivcil with M. I'i; I'.. t|
I tiMiii iif liursus ami tin fa
piiivil, tiiiU'tlii'i' ivitli tiie|
<1 til ill' tlic wuvk a> Ir'I
Vi'st tliL' ;;i'aiii raisuil ;
• tin; tUvi's!iiii;4 uf tliiir i.'sj
viu ; M. it r.- \Viivt.ik..[
iVilw anil siiw tlu' jila>tirre
to funiisli : tlu'V alMi a;,'
lifl's I'ligafioil im till' \il:ui.', j
■iil)S, aiiil til liniiM' 1'.'^ --liai
i;>, ami imt Iwnlliiril* "I
iiani till' I'., aliil imt t" leaf
heir laliiiiiv was ivi|miiilj^
) lit' I'ur till' siiiiiiiii'r aii'l
ho fall work was ilmu'.
•u was a (lai'iil ai^rci'im-iit. va
vas liiit til liiiil thi' liiU'sfs.ii
uiu'-halt iustiail nf um-thin
, not a Irltiii.uiif lliulaiuliitti
!fc 11. a tiTiii ami imssissiii
I'liniui'i-atiiin I'm' thrir i:iri'
.•rl'uniu'il as 1'. ilii-i-itiil.
K'. I'. -MK
lult till' in'i'iiiisi'saml imt i
hii siilisii|U(iitly iiai lU'ti'U^
||ii I'jfi'tliii'iil 1 y the li'ssi'f
, liuil wh.'thi'i' till' iilaiiitilf !
1 1., sii that hi- hail an uitd
111' ti'aiist"rri'il l" ili'tiii*^
,vas a iiii'i'i' lai'i taker, ''i"' 1
, til liml till- iilaiiititl. 'It
I'li.laiit. aiiilaiK'« trial ":i>
i,i.;,ii\ i:n'. 1'. :^--
iV's Jiu>'lit I'lVi'lvil til hasUI
at iMOOa viai-, \iayalili' i|UJ
t ass.'iiti'.rti'lliit.i'li..sh<
Irhl, that lii'XvasiiHtlial'lel
^aii'i^i'il that altLT til.
1 what till' vat «ii"l'l "«.J
|„. agi-iifsilii'i'itiiiiis.aii'll
hulls.', ami iiaviiiri tlu' ke^
iuulsaiil hi wim'it tak.it.
1,1 iii.t hav.' alli'R'il til.'
V. 7'io-,-i'-i', l'.'<.>' "■'-•'
«ignoil till' tiillii«i"-' '""'"111
liav I'"." it'll' I'l:""'-'"' "'•'"'
u'liimsi' I livi'in, tliei.i'ml
1 llV 111.'. klliiWll .IS 11"
„. st.ihh'S iiiiw »«■'' ''\"'
thi' ist .\|ini M.'Xt:
l!E,;:'.'";"S,?^-:'H
[i ,'onii'i'i't'""''>''''^''"" "J
I ll,„lll.■l■rtalll.■l'l>llltlll"^N
l,„ll,nil... ai'nissany-r.l
Ivhi.'hh.'aj^ivi'iltiiki'M'itl
I'i at his .iwli vs\K»^''
iniike'lofimlt the privilege gviinteil hy the
,[.,,11 w.'W ti> i'(!:vst'. The .lain aii.l ln'idge
unit aini ki'iit ill repair liy the ilef.'ii.laiit :
I that the iniitraet aiii.miiti'il t.i a lea.se
11, iiiniiiratiiiii of upwanls nf twenty-mie
/,'i.;i«" '■'■ ril I'dlli riiiii v. C/arb-, i> 1'. It.
I 1,'. Chaiiil). Dalttiii, ('. ('. <{.■ I'.
|,^niiiitlet til plailititl' cert liii )iri'iiiis...s "fur
l»r.'.i . ' '""' y-"'^^' *" he I'l'l'ip'tteil friilii the
IhlIkt, IS'''^. '""' '*" "" friiiii year ti> ye;ir,
until.' i''U'^'" til the.'iiiitrary, ore iiiit ilile
„lj;i'i taken nn iiiiirt;;ai,'e liereiiiaftei' nien-
,i I'laiiititri'iiutiriiieil to iie.'Ui>y nn.ler this
jii,l ill May, KSliT, siihlettn on.' P. for one
sithri^'lit til 1'. to |iay his r.'lit to deft'ii-
iiiilDth •lamiary, ISIJS, a Kill in ('li:ineery
!,li,l nil the niortga;,'.'. In .May followiiij,'
|«.lr.'iit til ilefemhliit lip to the .'Xpiratiuii iil
iCir.iUi'l 111! til.' ensiling; •J.'ith .Inly or .Aii^^oist
kijijtilisti',iin.''l upon plaiiititl' for arreai'suf
k'n'.iiv till' ili'iiiise to i .. ainl for r.'iit froin
p.r:iti'iiitii Ist.luly, ISIIS; Hehl. that there
I tiii:iiiiy siilisistini; at the time of the
(f justify the siiiie, for that it was
■utiuiriiy tilin.i; the liill in ( 'haiieeiy, ami
lilt |.aviiieiit of rent liy I', after tint iliil
Iffijti' a ii.'w ti'iiaiu'V, as there was no e\ i-
ij'iit r. iiiil piiil 'it plaintill's leiniest.
„v. /.,(»;;/•..,•'/. iM (.'. I'. --'.H.
lier' a ti'irir 1 after the ileterniinatioii of a
i«|ii'rili.' term, li.'I.I possessimi for live
• iviiiu hy a(,'reeni.'iit CT-") for the first
,i till' same aimnint for the last two
i<, i.'l.VI ill alll ami afterwarils neelipieil
IcMin .>iii'i'ilii' aj,'i'eenieiit : Helil, that no
■ .y was eiv'iteil hy 111.' last over-
.//iHi.< V. .S/'iiiioii, !S ( '. !'. .'{|.
I tviiu at Ciillili'^'wooil, wi'iite to ]!. at
,!i"t!io .">tli of .Inly, l.S.")i», to the i ll'e.'t
liuiiiU j,'iv,' L'tit a year for his house, ami
lUf. a.Miii;,'. if yoii .'i.urei' tel.'-r.iph at one.'
i;c!ii:t. ami I will take it. (In the (Itli l>.
liMw'i: '• Yiiii may hav.; the store for .m.'
. Ill yiiiir letter. " .\. olitiineil th.'
lj:ii til. Iiirmer teii.int on the llth, ami
liil^imi tliitiliy : - ilehl, that theri' was
l.'iii>.' ; til it the r.;iit .'oniiiieii.'.Ml from
Iflim'livH. iif A.'s (iH'jr, not from the time
i.l. I'uti'i'i'il ; ami that 15. was therefor.'
l!" .listi'.iiii for a year's rent mi the Ttli
[.Islil. /'/•".«. /■ V. l/r,,'!' r<nii, ■_>() 1^. I!. 4:i.S.
-.t^Iaiiil s.'i'iiii.l .'iiuiits iif the li.'.'i.'ir.itiiiii j
lH!ii.'.tivily fur ilistraiiiin^; wlier.' no rent
liie.jiil fill' .'M'essive lUstr.'ss fur r.'iit. It
ithit ili'femlant h.ul lease.l to plaintill',
fcitmi "I yiais, eirt.iin )>remises, |iortioiisiif
iiiMit tlie liiii.' ill the piissessiiDi iif other
\.inl th.it th.'se )iirti.'s retain.'. I [Hi.sses-
ktibt tin- iilaiiititl', ami refiiseil to jjive
ksftiliiiii. Ill eiinsei|llelK'e .if this ilefeii-
l«'i.i-i/i'. ryii/'d/;.!// (if till' tirst year a^'i'ee.l
ImjiiiiI tn an aliatenieiit in th.' rent for
1 LMve him a re.'.'ipt for th.' Ii.tlaiiee, I
hiiitill iniil as th.' amount of rent
I' lueiiiis.'s. D.'femlant, howev.'r,
i-iitlviiistr.iiiieil fur th.' sum a^ree'il to lit!
II M, .111 the .uith.irity of Neah' c.
:;'. 1 M. k \V. 7ii.'l. tli.it at the till!.' .if
i'lM', ami .liirinjj; the whole period
|h'.«i."laiiii.Ml fur, no leffal term wa.s ere-
till mstniiiK'iit of lease hetweeii the
linnmscnueiiee of the iulver.se liuliliiig
of part.4 (if the premises and the plaintitV's ox-
eliisiiiii therefrom, ami that no ri;L{lit to any rent
ill respeet of siieli parts had ever arisen, ami that
theret.ire the rent eoiilil not properly he apjior-
ti.iiie.l, heeaiise the tenant ha.l never lieeii siili-
jeet to the entire rent liy virtue of the demise :
Held, al.s.i, ilLstiiigiiishin^' Watson r. Wand,
S Kx. .■{.■{.">, that the agreement lietweeii jilaintiH
and .lefendant, as to the aliatem.'iit of the rent,
.li.l not ereate a ii.'w tenancy hetwceii them
at a new rent, entitling .lef.n.laiit to distrain
therefor ; lieeause the agreement was imt made
iiii>i/ ii/ti r Ihr ix/iirii/iiiii .if the year to wliieli
it alone ha.l refereiiee, so that the r.l.iti.ni
ship of lamllord and tenant .'.nild imt have
lie.'ii ereated for that year, and the sum agreed
to he paid, eoiild not have lie.'ii rent. I. 't a mere
sum in gr.iss, and .roiild not, .■.iiis.'.|iieiitly, have
lieeii distr.iiii.'d for ; and, therefor.', M.ld, that
pliiiiititt .'onl.l not re.'iiveron the liisi ,iml seeoml
.'oiiiits, w huh w.^re fram.'d u]ioii th.' assumptioii
th at plaiiitiir w.is tenant to defendant at a eei'-
t.iiu rent. Kil/i/v. /rirlii, 17 C I'. '.i'>\.
The ilefeii.laiit wli.i owne.l the farm agreed
with tlu! plaintill' to work it mi shires, ea.li of
th.'iii supply iug line half of th.' se.'.l and lahoiir
and to hav.' half the in'olits, tlie pl.iiiitill tn p.iy
.'-'liO fur inipl.'ineiits a;iil .'<l(>0 aiinu illy ; hut th.;
plaintill was imt iikueil in pii.ssessiun nf aiiv dis-
timt portion of the f.iriii, the parties lieing
.'.|il.illy ill iiiissessimi iiI th.; whole : II. I.l, that
there was im l.'ase created hetweeii the parties,
and tint the ."^KiO w;is imt rent fur which tli.^
.I.'feiidaiit could distr.iiii. (lUirl'mw M(< iii i/nr,
•_'ii ('. I'. 4(;(>.
.V )iersiiii assiiiuiiiL; to Iiixc an intcr.'st in lU'o
p.'rty, tlmiigh he li.i.l ii.ilie, ex.'.'iited a l.'ase ur
an agr.'.'ineiit for a l.'.ise to a tenant ; one of the
trin; .iwiieis slmrtly aft. 'I'W aids to.il; an assign-
in. 'lit of the instrument, an. I gave to the tenant
imtice of the a.ssignmeiit ; ami sueecsBiv.'.iwners
.liinau.l.'il and recived lent rescrve.l liy the
instrument, insisted mi th" linililiiig of a liarii
whi.'li tlu' agrc.iineiit prnvidi'd fur, and otherwise
r.'cogiiiz.-d the exi.^teiici; tif th.' agreeiiieiit :
Held, that the agreement w ,is thereliy .'mitiinied
ami a.lopt.'d, aii.l was liimliiig mi tin estat.'.
.V('/i(//((i//-s V. Ciiiii/'/irU, 17 I 'hy. iil'J.
Si'^' Cirl.'-rii/hl ,1 nl. v. .l/./V/. /'.sK/f, I'lH,!. I',.
•J.-.l, p. l-'OSl ; K<lt;l V. //-ir;,,. 17 ( '. P. .Ti | , p.
•_M)."iS ; /,'..,ify.<;,,ri'hii, ■JIIC. I". .'I'.l, p. -Jtr.l.
II. I,r.As|-:s .ii; .\(;i;Ki:Mt:srs mi;i!i:i.v.
I. (iiiiird'hi.
The words "agrees to let or hire," are words
of a pics.'iit .leluis.;, where the t;.i|ilraiy does
not .'ipp.'ar t.i lie th.' inteiiti.iii in the instnimeiit
in whi.'li thi'V are cuiitaineil. ('iiiiniihiij v. //»//,
(i ( ». .S. ;{().■(. '
M.'iimr.iii.l a or li.'a.ls nf agr.'.'iiunt. as.erlaiii-
ing no .'.'itain aumunt nf r.'iil, lieiii'_' lutp.iratory
to .'I l.'tting, ami iiml.'r w lii.li im rent had lieeii
paid liefor.' th.' ilistr.'ss . Held, not tn cmistitiito
prcs.'iit d.inis.', entitling the laiidlmd tn distrain.
('/,./„, /v. '/■<(///.'/•, I l^ Ii. KK).
Meinoramlmii of agreement for lease : " M.,
fnr the considurati.iii liereinafter ii.'inu'd, agrees
to demise an.l lea.se t.i H. tlie.se premises, &e.,
f.ir the perioil of three years eertaiii at 10s. ey.
\\
•«»HHMB>
'I
1-
11 '«
201')
LANDl.OHD AND TKNAXT.
liL'i'iIay, )iav.il>l(' iiiniitlily in ;iilvaiu'(Mliiriii;L,'x.'iiil
tiTiii, anil \y'\t\\ till' i>rivilf^'i' t" said II. tn ImM
tilt! same for a ftirtluT iicrind of two yvnvn at, tin;
saiiu' font, ^layalilt^ a-i af<pivsaiil. Tin.' said If.
Hj,'ri'i'H to take till' said iiiL'iniscs from said .M.
for the idicc and t'jnii.s aforusaid, and to ]iay all
taxes ii]ion till' said |)rciiiisi's, ]poss('ssion to lie
given whenever the lirst inoiitldy [i.-iyineiit of
rent is iiride." (,>uaie, whi'tlier tlie alitive writ-
iiii.' (in't under seal) eoiild In; in any ea.so eoii-
striied .is in n'e than an agreuineiit for ii lease.
//»/■/.// V. M, l>.,H.II. II (.>. n. --'OS.
.A. agreed in writinu as f(dlows : "In eoiiside-
r.itioii of t'TO paid in hand hy I?., I lii'ri'liy a;,'ree
to si;;n n le ise of lot No. '.VI in the "Jiid eon. of
Ktoliieoke, directly the same is <lr.i\Mi \\\> liy the
solicitor, in the followiiij; terms, viz., to let 11.
have the farm for seven years, coiiinieiiciiii! from
the 1st .Ajiril, IS4S, at i'Tt* per annum ; the lirst
^payment lii\ in:,' hecn this day Jiaid hy the said
l>. , (the ii'ceiiptlpcinu aikiiow leilged) anil the next
jpaynieiit on the 1st (pf .Vjiril, IS.'iO, ami scp (Pii.
If I'l. w.ints t(p eive n|p the farm hefore tlu' "X])i
r.itioii of fipiir years, he is tip ip.iy t'14(> to me ; if
after four years, then f7l>. If I v ant to sell the
farm, then I am to [pay l>. on the same terms.
Six months' notice to he i;iveii to either ]iirty.
I am to [lilt n|i a frame h.irii, to lie eom]ileted Ipy
1st .Vuiriist. ISIS, kf., also a house, .\:c., hy 1st
• Inly, l.S+S; also to s|plit 4()()() r.iils, and Inve
them ready for liaulinv' hy 1st .laimaiy, ISIS :
and to .secure whatever wheat It. jpiits in this
fall Ipy fence. I!, is to have his lirewood, fi<\ :
and if lie ]mts in lifteeli acres of wheat at the
exiiiration of his term, he is to have the |privi-
lege of taking it oil' :" Meld, not a lea.se creatilij.'
•'. tunn of yt'irs, Imtonly ,in executory ai,'reeinent.
JfrUmi V. Vninni. I ('. I', (il'.
.An a..;r ■ 'iiient in v ritiiij;. wheielpy .\. a,i,'r(.'ed
to rent t I 1). for three years from date, for ilM
per annum, with taxes, jpayalpK' i|\iarlerl\ diuiii;,'
occupation, !>. to s]iend t''J."p in imiprovpiiieiits ;
Held, a lease ,iiid not a mere aj,'reiiiieiit for a
h'ase. /,';•<»/// V. Liliifh. i; I'. I'. ITS; .V. ('. 14
«.>. I!. I4S.
Held, that the ilocuiiuiit set out in this case
wasa le ISC. .iiid iicpt m ■iclv an agreement lol' one.
/i'.i/c/' V. ir. o./v, 1(1 C. 1'. iM.
<i>u,ere, wlietlu'i' the instrument in i|iiept!oii
set out in this cise amount, 'd to .a le ise, or .viis
a mere license to horc for oil, sa't, or minerals.
I{iini.-<hl< \. Mill-Ill.^, 17 C. I'. 4:U.
Kiectnunt. .\s t.p a portion of the pioptrty, a
haw mill, ipiic I'l. Slid that on a .S.itiinl.iy lii'
rented it veiltilly from the pi, lint ill' for a ye.ir.
.uid it w.is intended to hive a written lease, hut
on .Monday tlii' defend int put some one else in
iiossessioii, and refused to let him in, after which
Iio had nothing; further to do with it. It wa.s
not shewn that either the' rent or the terms of
tile teniiiey had lieeii agreed, upon : Held, not
il lease. Iput an agreement only, and that the
defendant could not s-t it u]i to defeat the plaiii-
tiil's title. A' '/A v. Studs, ;il (^ IJ. 47.
Wliei-e, under a ]i;irol ugruemeiit tor !i loiwe,
for ten yens, made hetween defendint and plain-
till' on the terms of the iplaintit! clearing, or
paying a rental either in clearing or in inoiiey,
the plaiiitill entered into possession, and after
cle.'iriiig a certain nunilperol acres, the defendant
Hold the lot, mid the j[mi'eliaHur ejected the plaiii-
iila h„t n,
■<iii;; Ml Mntui ••
f 111'' V,l||„,"„'
•'"■1 w;t. :..,
n,
'• V'lV' II j
ise \\xi\
Kl
'Ifl
■'W
tiH': llehl, that the plaintitr
uiidev the agreement, not
under tlie common eouiiti i
services, for the cleariue ,,t tin
primary service for wiii, 1, tii,- I'.'aJ'v,
the ipertormance of the work, to
mode of coni]iensatioii ; Imt ti:c
lirimary thing contr.icted f,,i,. ,ui.rt|i7w"rk
reserved as a rent from vi ar t.. vear v.n
that till' plaintitl's reiiiedv, if aiiV \vi<
eilie iierforniaiice of Hk' li^r.'eiiiwi't ^'"^
purchaser, who ind piiivli,iM.,l « 111^1,,..;,
the |ilaiiitill lieiiiL' in pos,. ssion s,|,|iV
H,igarty, < '. .1., th it if the har- an ii „r"'
wiirk to he done hy pl.iintin in", Iruii, .
to he pai.l for hy ,dlowini; lui,i t.. „'„„,.
detendaiit had prcv.'iited tin- i, ■,,,,,,, ',;,'
plaintill might have recovcii-,1 tl„. ,',1,„ ,/
work. />/■!(/" /• V. Ilnll,,,-!,, '.'t c. !'. I'jp
On the 1st «»ctohcr, |,S7.-p. ),laintill' «,,,,.
the owner ot eert.iiu land in tlic t..w i-hj
Caledon. that he uiidcr,st..od that mi, \\
had had a written Icxsc frnm |)^ s,\\
expired, hut w ho had reiiiaiiicl i,n mi, t:
ot the lease, was going to Itivc, ainl t'
farm w.is for rent he wmiM ^.-jve jp
year, and jiay .all taxes, k<.. "ui.l i.
an answer i,y return mail, as lie widi. l fi
iiience ploughing. |)., w||,p w.is tli
rnitcl States, replied tint lie hid i,,
to iilaiiitill's '.eniis ;u lo naitiiej t!ir lam
th.it lie might eomiiieiice to pi pii-li ua th. f(
iiig coiiditions : " | rent to yon f,ir , ue
with right to .sell the farm "at any ti.ii
giving up possession tluTcpf wliei! r.-nu,^
your li^'iiii; paid for laipoiir and seed at \' ,1a'
should the )puicliaser w isli pos>(,..s>i.,ii. j
up at Cilcd III as soon as I j.-ct Imiiie. .;.
liii'il arr.aiigcments as to pivinciu ,iii.| >,■,
The iilaiiitill'. ■liter d ami dl.l tlie pl..iuiiiii|
\< itliout M. liav iiig i;iveii un po.s.'ie.ssii,:!. ,,r
II, o tiie .irr.uigeiiieiits as tip pivniciit m.l •
heilig perfected. Siih.se,|ll'Utly 1 >.:.,, 1.1
defe.daiit, who theriii|i:pii took p,,^.,-.
appeared that I), oll'crecl to ]p,i\ tli- |'l mil
his fall ploiighi; ,', hut that liclid iint.-in
claim. K\ idciicc was .ilso ;iiveii o. t\|i
made use of hy 1». ti inteiidiiiu' pr.ivli i-ei
ferring to pl.iiiititr a< tin' tenant w
jilice for a ye.ir. hut would ;:ive ii|i p i
teing paid lor his ploiininii.', and ,; 'ic ,iii
tenant who would li,ive to |p,^paiil tor t!i |ii
iiig:— Meld, that tlere was im pris<ii; ili
hut that the pi liiititt inerely 11 idalii .11
and ]p|iPUgh, peiidi>i;,' the coiichisi',|i i,: :lii
posed hargiin, which license wa
entry of defendant, the ip\>,..r of tli.- Ir
m.'irksas to |p1 liiitiU's londiut in hriii
of ties]i:iss aii'l ejeitliieiit mi th • niwii
,V^'/./« \. IS,-n.lil:i ,i„i.. -2: C, I'. -JMI.
See /,-//.s V. /;.(/,/»■;».•_'( P |s\ ,..
1'iii;l<ir V. Siiflnii. ISl.l. r..iil."p p. Jii."!
V. ilr,„i,i-s,„<, •_'(» V. II. 4;is. p. •.'(i;:t.
/•»,/,,■
r;.'.
."/.
" Memoraiidiiin ot agreeiiii'iit tor 1'
for the considciatioli lieiviiiiltir iiain'
to demise and lea.se to H. those preiiii-'l,|
" for the period of three \<ars cert un.
ey. per day. jpayahle iiioiitlily in alv.m .,
mud tuliii, imd with the privilege to -iidl
:t^'^
LANDLORD AND TKNANT.
I'lllH
tlir lil;iintill .•.,iiM ,„,, n^
I'lit. not Uiiii; ill wntih_-.
im ni\iiit-< i(,r tlir v,,lu,",i||
•kMlili;; ,.! tlir lan.l «it. ,,„
ten- wlii.li till- |.:iM- tt.i,,
iif tlif wi.rk, t'lU- uiv.i'il
<atiiiii ; lint thr 1i-im(. vv\»|
iitr.utc'l f,ir. iiihl tlif -A ikf
lit Irciiii yiar in war.
's renii'ily, if any. was iDr|
L" of tlif aiircciuiMit a^'iMisI
hill imnliaM-il wiili nntii|
lii; ill liii.-o.ssiiiii. Sciii'iil
ll it il' the li:ir;iiili li 1,1 li,
liy iil.iiiilill iiiili'.iriii;thi!l
Uy alliiwiiiL: liiin to n.-iniyl
(iivviMiti.Ml tin- "■iiiiiatiiiiij
liavi' ivi^pivciTil ill,, v.ilii.-
V. Il<.llr,ni, -H C. r. |-.>-J.
tobor, IST.'i. jilaiiitilf Wi.tej
I'l't.'iiii liml in till' t"wii<l
(• iiinliTstiinil tliat (Mil M.J
ttfU liMSi' tinlil 1 1., wlui'll
II liail ii'iuaiiiril Mil (III till'
IS ;i'>iii;: til Icivi', aiiil tliati
cut ill' xMnil'l '.'ivc |i. .<|j
all taxi-*. 1^:' .. .ui'l rfi|iid
,'tiiMi mail, as lu' \vi>lul t')l
Hi,'. !»., wli'i w.i* tlnii iij
roiilit'il til It 111' liiil iiH ul.jfl
•nils a.-i lu riiitiii'.' tlir I'lnuj
iiiiiiiii.'iK'i.' to (ll null nil tliifd
: " 1 I'l'iit t'l ynii I'lr "uel
sell the tanu at aiiy tiiiie|
I's.-iiiiii tluTi'ul wlii:i iv.|iiin
1 for lalnnir ami m'i- 1 at \;ilil^
I'liasL'i' « isli iHissfisimi.
as soon as I ;.'i.t limiie. amlj
■nts as to )piyiiu'm ain
iter ll ami iliil tin- iil.iii.;liiin
illi uivell nil |iiis.seM.«iiill, url
mi'iits as to inyuii'iit iiul
1. Siilisei|\i-iitly I' M'l'
1 tlll'l'l •Hl:ill took 111",-
|), otliii'il to iia> til- liliiiiH
;, I, lit that li."li,liiiitM-ii,
1',' was .'ilso ;;iviii o,' cvpt
|». to inti'inliii'.' in'.ii'li i-el|
itiil' as till' tenant wli" lU
. lillt Wiiillil '.ivelllM
IS |ili.imliiiii. aini ,; 'ii'iiinl
ililliavi'tolioiiaiillort!!.)!?
it tli"r,' was 1111 ines'-'iit 'Id
uiitilVnierely Imlali' -ii-> U>1
hlio^ the eoiiehisioii nl tlijj
ihiiOi lieelise '.v;!.* r v.iki'l
;,iit, the o\, ...r of tll'J li'e
iitill's eoiiiliiet ill hriii^iiu
.■iei'tmelit nil tl'- saiiia
Ii„l,l,rn.. •-' <■. r. l"*"*' i
,„ is(,». |(. (;!.•) [i. ■.m:u;
tj. W. 4HS. (i. •Jii;;t.
Ini ol a^'ivenieiit fur leHJ
Jutioii herein iltir iiainul,
ease to H. thox- vreiMi'"
i)f tliree years lelt.ii::.
Lille nioiitiily ill a.lvaii
Ivith the lirivile;.'e t" 'i»l|
L L .nil" fill' il further |)'.M'ioil of two years,
' II,. relit, iny.llile .'IS aforesaiil. 'I'he.saiil
y til tike the saiil ))reinises from saiil
7, jli,. iiriee ami teriiis aforesaiil, ami to |i:iy
''jiiliiin tlie .siiil lireliiises ; iios.sessioii to
iiwlifuever the lirst nionthly iik^'ii'''if "f
r ,„„ii''" Helil, that M. eoiilil not llllill-
,1. tiin'ii' *" '"''•"" |>ossessiiiii, tor ailinit-
,'),,, .) lease, it eonlil not lie reLtarile'l as
i„r :i ti'i'iii ^^"^ execeilin^ throe years from
',[.:i,,i thereof, ami so liy the statute of
,«i,!ilil reiiuire to lie in writing : amltlier,i-
j,,lii,,it iloulit, hy the statute I'.' N'iet. e.
[-'.,11 fill' want of a seal, t ike cU'eet milv
ll,;. m'.'iit tl let. J/firl.:i v. Afr /).„>< II. 1 1
■Jiv
eoulil
au'ri'e-
„r. liiiw'ver. wli'-'t'ier the writin.;
L li,, 111; con.striiuil as iimre than an
tw.ili'f'e. "''
|.,,f.aitn the ell'eet of |-.' Viet. e. 71, s, }
ifrfvjrv h-ise in writiie,' iiiiist not he iimler
Ith ;r;!i ii'it rei|iiire'l to li,' written : so that
L.il Liisu for a ye.ir wonlil he oo,),l, hut a
..vse fur the same jierioil voiil, if not
ItHll.
! Vict.
71, s. 4, \> MS 'lejie vied hy 14
;;;;.,■/,; a !■'■ I'"''.
.s'. /'. ('. r. Hi.
|,t!iit 1111 agreemvnt not umK'r sell in the
ni iiiriii : " Tliis iii'leiiture witneMseth
|,e,.,■l','^■e to let to M''K. the hi i''ksiiiitli's
iiiill'it liiiii:<e ami lot known as Milli^'an's
rmi", three, or live yens, for the snin
|f;( V. nr ''Vi, to he )ilitl twelve nioiiths
'i;j;- lit'-' tile tirst year, aii:l so on to the
li«!h' :ii;n".'.<ieiit ; Jill iniiirovi'iii'iits to he
iKifll. .wUs the jilaee hefore thre'e years
iiMiniitlis ii'itiee to lie L'iv,'n if (>. sells
Hiivwts to leive," >e.i'. vuiil iiinhrC, S.
III. .\4. a< a le is^! for live yoiirs, not
sidi'l- si'al. hut was j^oml for three years;
i'iitii'i iiiitiee to i|iiit was ueeessary to ti^r-
citat tliiit (lerio 1. ( >sln:,-iii v. fC'ini-li'iir,
►L.in .111 iii'truiiH'iit not umlerseal, ilat 'il
^!tit,l,ti', lS."i7. leis'il to ((., one of the
bitt!-, I'mtive yi' lis. ( hi the ,'U.st of M ireli.
:iii'.t,'i;'eil tin,' ]ireinis,is to the jiliintills,
si\!l:i- tliereiii set forth, ami on the Sth
tE.|i>. liy iiile'iitiire, he Jiyiin io'ise'l tlie
im.Uivs fur live years to (>. I'limi ejeet-
TT'ijit liy tlie'm>rti,','ii,'.'es : llehl, th'it
l»i«itnri' iif t'u ;ilst of Oetolier, lS.'i7, not
miiksi'il, iliil not 111, t rate sinee the 14 ,t
'. ;. 4, as a le .se for live years, Init
.'i.iyiirly teiianey ; ami the ]il liiitill's
^1,1 Hititli'il to siieeeeil willnmt imtiee to
, i>,'/i;// v. Un-is, I-.* ('. V. ."t'.l'J.
nfi^.v. ir/ov. ,i,ii. I'.ic. r. :\{\. p. -jois.
"piteriiis iiK Till-; Sr vrcif. or KnAins.
■I- iiilaiit hail ,'i),'reeil verhally to let
liiiititl rertain |ireini»es for ,i year, to
s«.it,'ilutin','ilay, ami on tlii' day ilel'eii-
IlKltlii' iilaiiitill into iiart of the ileiniseil
I'litciiulil not give hini the |iiisseMsiiin
mwluL., ihoiinsei|ueiieu of wliieh the |ilaiii-
l«fcw liiHii, (111,1 sUL'd defeiiduiit on the
ajjreeiueiit : —Held, tliit he w ,w untitled to i-o-
eover, and the defend iiit eolild not sue.'essfiilly
ohji^et that the aoi'^'cinent was voiil under tho
statute. Cliirk- v. .Sirrirl,:-:, ■> l,>. I!, ."i.'t."..
rpoli the followili',' writinj; not iniler sell:
" Mem ir imliiin of agr,' 'iiieiit for le is,,. M. for
th' eonsideriition hereinifter n lined, ai;r».'es ti»
ih'iiiise and le as,' to 11. the ineniis '4, it,., for
tliree years certain, at lOs. ey. |ier day, payahlu
nioiithly in aih.iiiee during said term, and with
the (irivileg,' to said II. to hoM th.' sime fur a
further (leriol of tw,i ye irs .it the s iiiie rent,
liayalile as aforesaid. The s lid II. agr>'es tot iko
the said iireiiiises from the said .M. for the prieu
aii'l t 'rnis aforesii,!, jind to pay all taxes upon
the Slid ]ir..'lllise< ; /rur" ■aiiiii Id liijir. ii trlniui'rf
III n'l'sl iiinii'lilii /itii/iii-iil III' ri III it iiiii'/r :" —
Held, til he for a term exeeeding three yeirs
from the iii'ik'iii'l thereof, and so rei|iiiri'il to hu
ill writing. //"-•/.// V. M<lhiirll, II (,). I!. -.'((.S.
.\ lease Void for the ereitioii of a term (not
lieiiig executed aeeonliiig to la« I may he lookod
at to aseertaiii the conditions of oeeiipation.
diillii-iiilh V. I'ni-hni,, 10 ('. I'. 111!); Li/miiii v.
SiHin: 10 <". I*. 4(i-_'.
I'laiiitill' hy deed leased 1 ami from one S. for live
years fmni 1st (Ictoher, hSii'i, a'jri'cing tlierehy to
give 11)1 possession on the exiiiritiiei of the term
created, (hi the lease w,is endorsi'd an unsigned
meimiramlum, that if the plaintilV cleared any
more land h.' w.is to have the s.ime rent free for
the tirst tliree yens. No land was cleared hy
)ila;:.liil' until the fall of l,S;i."i, ami in the fall I'lf
ISi!7 he put in a crop of w licit. After the expi-
ration of his term, S. |ierniitte I him to remain
on the premises, and in the following .\|iril he
left, giving lip to .S. the (ll lei' w itii all on it. In
.lime following .S. hy deel leased tlu' land ami
ero)is thereon to two of the defend, ints tor five
yeirs from the 7th .l.iiiuiry previous, and siili-
s,",|Uelitly w hell the wlii'it hid ripened, the pl.iiii-
titl' entered upon the 1 iiid then in ih eiidants*
p issession, iimler S., ami cut the eroiis. defen-
dants took ]i(issessiiin of the wheat in shocks on
the l.ind, and iihiiiitilV Inought tr.iver : Held,
that the menior.indiim, if not inrt, of the lease,
not heiiig hy ileed, W is \oid, lieeiuse the throo
ye irs were ti I'oinnienee from a future tini", viz.,
from the I'leiringof t!ie Imd, and it rei|iiired,
ther,'fori'. to h ' in wiitiic'. Kni': v. W h'llr it,
III., lit I . I", ."hi.
Iiei'lir.ition for hr,'aking aiil enteiing the
liliintill s till e and cutting and cariMiig away
the grain. I' ei, on eipiit ihle gr>iiiml.<, that the
jilaintitr lehl the land under .in imleiitnre of
lease tiMiii ilcfendant, mi the iie^ itiatioii for ami
e.xecntion of w liicli it w,'is verh illy agreed hetweoii
them. .!:;d the true agreement was, that ilefoii-
ilaiit shoiil,! have the right to enter and harvest
the crop then in the ground sowed hy him : that
wlu'ii th.' lease w ,is executed a reseiv.itioii of
such right ill it was suggested, hut emitted oil
the pi liiitill's ,'issiiraiie..' tliat it was iinneeessarv,
us the agi'i'i'inent ln'tw eeii them was wi 11 iimler-
stood, and defendant would he tillowed to take
tlu; crip: ami that the entry, iVe., in pursnanee
of si'-i'h agrei'iiii'iit, is the trespass complained of :
Held, th.it the plea was g 1, for the indepoll-
doiit verhal agreement, m ide in coiisidi'iatiou (if
ilcfendant signing the lease, was good us iin
agreement, tliuiigh defend int hy tlu; 4th sec. of
tile .Statute of Kr inds, might he prevented from
L'Olf)
LANDLORD AND TENANT.
11
'I
Huiiijh' on it ; aiul ax ci|uity in snrh a case woiilil
tlocrui^ «|ii'i'ilii' ))urforniancL', tliero wivh j^niund
for a iiiT|«'tnul injunction a/,'ainiit this action.
QuH'i'i', wlietluT tiiu jilua was not <il»o a justiti-
catiou at law , an iindui' an agreuniunt wiiicii was
valid to jiidtfi't tiiii dffendant, thoiigii he could
not have enforced it liy action. Mdi'iiiin.ii v.
Kt;i,i<i/ii, •_'!» Q. I!. 'Xi.
,Scu «;i'i',i>ii,;i V. (lUi'idiKit, 'M\ i). 15. 231;, II. -.'047.
IV. ('o\sri:nri(iN am> Oi'i'.iiArioN ok I.kasks.
1. /, ((•».< until f I he Sliiirt I'mnn .!'■'.
An ordinary lease under the .Short Forni.f Act,
fontainini,' the wonls "and to |iay ta.ves," covers
a sj)e^ial rate crcateil liy a corporation hy law
as well a.'s all (pther t.ixe-:. /// /■<■ Mif/ii, mi'' flu-
Ciir/ii-riiliiiii til' till I 'ifi/ I,/ 'J'liiiiiilii, lie. I'. 87!l.
A lease made in IS70, jmrportcd to he made
"in imrsiianee of tlie act to facilitate the le.isiM;L,'
of lands ,ind tenements," hcinj,' the title of the
14 it l.'i \ict. c. 8, eon.-*olidated in ('. .S. {'. ('. c.
112, instea<l of " in ipursuanee of an act rcspcct-
in;; short forms of leases," which is the title of
tln' consolidated act : Held, nevcrtlndess, a
Hulliiiiiit leference to the consolidated act. so as
to lirin;4 the lease \\ itliin its provisions. Where,
therefore, the pl.-iintill'l the lessee! «;is evicted liy
title iiaramount to the lessor : Meld, that he
couM not recover as for a lireaeh of the covenant
for i|iiiet enjoynient, which is limited hy the
Ktatut-.' to flic acts of till' lessor and those claim-
ing under iiini, nor under ,in imjilicd covenant
font:iine(l in the word "demise." as it is cci-
troll.-d liv the express covenant for (piiet er oy-
1'. ."iKi.
incnt. /'((
V. J'ltr/i,
!t('
A leisi' dated 1st .Inly, hStiS, pur|iortL;d to lie
made " ill pursutvncc of an act to facilitate the
leasiny of lands luid tenements," the ]iropcr
title of the statute then in force, ('. S. 1'. ('. c.
J>2, lieiiiL; "An act resprctiiiLf short firms of
leases ;" ;uid it contained the follow iiig covenant,
"and the said lessee, fur liiiiiti lj\ li'n /ni -.i, t.i'i-.
riiltir-', tiiliiiiiii'<i ritltir.i, nut/ tiMitjn-i, herel v cove-
nants w itil the Slid lessor, /(/> /i.ir< tllttl ilsihi:i.i,
to [lay rent anil to piy taxes, and will pot assiyii
or sulelet without leave." The', followed
"proviso for ri' cuteriiig hy the s.iid lessor on
iionpciioini.inec of covenants, or seizure or
forfeiture of the tei'in for any of the causes
aforesiid." The plaintiH':,, as assi^'uees of the
lessor, lironght ejectment, claiming to re-enter
lor lireacli of tiu' covenant not to .assign, liv
reason of an assignment of the lease niidcliy
the administratrix of the les.see : Held, 1, that
the rel'erenee to the statute was sullicient, not-
withst.inding the niisdcscii|ition of its title ; 'J,
that the covenant could not take ell'eet under
the statute, the short form given there omitting
the Words aliovc italicised ; ;!, that the proviso
for re-entry, a|iplicd only to tlu; iion-pciformincc
of ]iositive, not iii'gative covenants ; .and that
there «as, tlierii'ore. no right of re entry hei'c ;
4, that there was no niati'ri.ii dill'ereiicc hetween
" re entering. " the word n.sed in the lease, ami
"re-entry." the word used in the statute. Lit
it III. V. 'l.tii-stli, .•{7 (,». U. -jdi.'.
A lease, purporting to lie made in jmrsuaneeof
the act respecting short forms of leases, contained
tliis provi.so : " Proviso for reentry hii llir sniil
JcsMir, on non-payment of runt, ii'hilhtr I'lirfiillti
rA'»/,r«,W ,„• «o^ or on n„u ,,erf„n„,,„ ,. „f I
eimnts, or Aim,,;; i.r i"fitli,,,-r „,■ n, i
ft, r 11,11/ of /lir rtiiiAi:* ,(/;„•,,„,;,/•• .i' "' 1
italics not lieing in tli./ A^uvx i,',ri„ l'!!!U
st..tute:--Hehl,thattl, l,l,t„:;:,^ ''^
di<! not exelinle the app|i,;,tini, „i t|,'
,ind that the proviso extended tMcvenai t^i
as well as l.efore it in the lease i ;■„•
ti III., ;hs (I W. .-)4.
Sec also " |)Ki;ii,' |\',
III).
/'tin:,;,/,,,. ||-,„,/,
The words
agrees to let .,!■ hi,.,." ,.,,„
ot a present demise, when! tlic ,„iitiMiv.|.
apjiear to lie tlie intention in tlie uiMnun
which they ar<' coiitaiiicil. r„,„ ,,,;,„, ,
( ». S. .-{(W.
\N here the plaintill'declaivil ui,an iiMl,i.tri
lease, not setting out any eoveiiaiit l,.|-,|iii,,tei
nient I the lease itself m fact coiitainiiiM A
assigiu'ilasa hreacli that drfehdaiit lia I ln„'J
the iilamtill troiii eiiterin- on the .lenu-nll
miscs .it tlie time vvlicii the term c.iiiiin.iKi.lJ
ciuitiniially since k<|it him oiii ; tn vi In, I, A
• laiit pleaded merely a ..Ivniai of liaviii- liiJ
the piaintill' froei •.iiterii.g ami tMJ,,v,)|,-;
the jury on this i.-sue found for tin' |,laiiitii'F'j
court refused ^o set asiile tlie vcniht, |iu|
tli.at there was an implied CHVeiiant lurj
enjoynient, .iiid tint proof of the deleinlanlJ
fusing togivepossc.-ision to thi' plaiiitin I'no
to a lire.ieh of it. .'■ininr' v. Simri, ."i(i, .S.|
<,)u.ere, whether the wonls "kaKeaiiM tuj
let" iin[ily a co.cnaiit to give piis<cs>in;i oi
diy when the term is to rdiMmeine //
/•',"/■;/»«../-, il i). li. -|;{|,
Semlile, that the vvoi'.l "d'laiM'" in
raises an implied covcii ant to gi\e |iii-
Sii,i,iilti:< V. /,'i't; 17 f. 1'. 'Mi.
The vvor.l "le ise," dllt'criuu' fnnn ••-!
"demise," implies no c intrict I'.n-
ipliet possession. /c.... \. .1/ i ..;„.(',
I". (!•-'.
riaintitl' demised to del'eUil llit, CI
that it should lie "competent" for tliu
to 111 ike certiin sp,,'cilied i-'piirs. a'lil ine
v\ ,is dcclaro'l to lie on the express iiiuli ; -t
that such repairs slioiild lie mule v, lii
year from the dat • of tli • said leiisu : !!• Ii
notvvithstanding the vvomI " cumpv'tnit. t
feiidant eovenautcd to dn th.i vmh', ne
.]/,■/> iiiiiitl V. Ciirlirtii,,. i; c. P. i:;4.
( 'oveiiant on an indenture, vilid'ehv >: tu
leased and to farm let to pl.aiiitilf at
rent the crops in the gvoiiinl. and tlic -tiK
implements of liusli.iMdry. to he valiii i ii
day of entry, and to he taken hy tliu pi liij
such valuation. Tiic plaiutilf diniaii I ! ^
sionof defendant at a tavern not mi tin pw'
hut defendant refused to give it luiliss
paid or received security for the valuo
crop and stock, Ac. : Held, that il.li iM
jurttitied ill such refusal umlcr the t. run
lea.se: and (^irere, vvhetJuT if the k:a<i' ha
without any stipulation, tlie dein.iiul et :
»ion made Would have liecu siitii lent. '
v. /•V/v/«/.s.so», ;t 1^ li. I'M.
■:iiry|
i-'ea
LANDLORD AND TKNANT.
2022
KIMllI^ IIHll li(Tf(inii;iii,v (,f|
, "(• fiirjvilitf,- „f il„. „,;,/
riMiM iifnriMihl,'' tin; vM,nd
ill tlii^ .sliiirt i,,rii, i-iviqi lij
tllilt tln'Ulldlti.lllut tlll'Sr ..
:lie aiiiilii'iitiuii uf tlic' si:iti
i-isii (.■xtcinliMl t(M'iivun;uiUi
it in thu lo:wi'. (V.i-i.rv
4.
' |ii;i;ii," IV. .'i, p, lull).
l\irth;il„
r..,-./,.
iii,'roi.'s t(i let '11 liin ■■ ;iii
isi', wlnTf tllccii|lt|-,livii(
iiitcutiiiM 111 tlio iii^tniiiiiiJ
fdlltiUlinl. ' 'tiiiuiiiii'; V, /j|
lilltilV lU'iliU'i'd on ;iil linUiit^
:ciiit :iny nivi'iiuiit t'ipr(|uii'ts
tsclt in fai't ni;it:iiiiiii;;iii.ne,j
'ilL'li th.it ili'triiiliilit lial hind
111 I'litfi Iiil; I'll tlic iluiiiiM'ilj
f wlll'll till' tfllll enllllinilrfj
I' kept liiiii (lilt ; t(i wlii.-li (
iM'cly ;i '.'.•.'iiiiil iif liiiviiiu' hin(J
lii| Vlltl:ni.;4 mill clliuyilii^j
i.-'.suu t'liiiml till' till iil.uiitilf J
^11 aut. a.'<iiK' tlie vciilirt, liof
s ivii iiiiiilii^'il I'livciiiint tiirj
. tint lUniif 111" till' ill'l'i'llilillllj
ISSOSsioll t(l till' lll.lilltilt ll'llllj
it. SiiiiU-> V. .S/,ii/'/, .')(). SJ
luT till! Wonls •'luiLsi'llllil td
.(.'iKiiit til ;.;ivi' jiiis<f,-<siiiii o|
;enii is tn I'liiiiiiu'in'i' //''i
1!. WW.
thf wiir.i "ilriiii.xi'" ill a I
eil I'liVfiMiit til givi' I"
, 17<'. I'. .'{U
fv.s',!," ilillVriiiL: froni ■'griinl
lies 1111 I- iiiti'.u't I'lir I'litrjl
u. /i''i'.< V. MiMii'j'i i-'L
liisi'il t'l ili'l'i'ii'lint, I'liV'ii
' •• fiillllifirllt" I'lil' tilt' il'tl-'l
sii.'i'ilii'il I- 'piir-*, ii'iil tlii3|
liv' 111! till! (.'xiii'i'ss iiiiiU'r-tl
lir.s s>iiiiilil li;' mill'' \^'"'''i'il
it • iif til • saiil li':ist' : Hyld
L till' wiii'il •'I'liiniit'ti'iit. til
Titi'il til ilii th.: wiirk -|ic^
1„/m'i(«', llf. 1' i:''-t'
liii iiiiiriitiiri.', w lii'ivliv li-fflj
Tariii li't til iilauitilV at ,i
li till' i^ri'iiinl. !i'"l tl'>' "''"1
iu.-ilia;iiirv. tn lio vain. '
1,1 tn 1h' taken I'.V tlk' I'lalU
Tlu' iilaiiitilVili'iiini'l
|t at a tavern not mi tin p™
Jn'tn^itii tn ,u;ivL' it inilr-"!
Il sei'iiritv !iir tlic valm; i
lU. : lli'l'l. that lUi.H'la
Oi refusal niuler tlio t'lms j
J'e. wlu'ther if tin; Iwi-"' liar
Inilation, the ileniaiul "I ;
11 have lioeli sutti.ii'iit.
I(^. 1!. «1.
|i,,.fe vlietlier the words " leiwe and tofiirin
(v 'lyii ciiveiiaiit to give iiiiHseMHioii iin tlio
l^^ln'ii'tlR' term is to coniiiienee. //».
|r>itliibl>' li-'a.sud to till! jilailitiff for three yearH
li'tiii' ''*'' "' '^'"^ ' '""' *'"^ JilaiiitiU' cove-
r 1 that, on or itefore said \nt of May he
''I ^vi' ti' ilefondaiit two siitHeieiit neenritie.s
A. " rtiirinaiicf of hi.scoveiiant.'< in tliu lease :
Ml tlwt t'"' >5''^''"W **'"■'' "'^■'■'"■'ty was aeoii-
Lj|',r„THl^'""" *'''■ !il:ii"tit*"s l-iKhtof pil.sses-
Lo'ld- tlif lease. Miii/ili;l v. Snir/li, Hi ().
iMtii'Luit leased to i>laiiititV " Sutlierland's
, l,.iii.' tlio "est Jiart of lot No. I."), in the
_ II „f\Vest /.orra, as at jnesent oieiiined
L/^ij.l .Sutherland," for eii^ht ye;irs, at a
yirelit- "'^' ^^'"■'^^' I'i'ovided that the Jilain-
pii'.iilil ii"t out down tinilier for the imriMwe
likiriiij; iiiitsid.L' the hriish feme, Init iniuht
L all within, and niinlit use all the woodland
R,j,,i,lli.!isi'il ]ii-eiiiise.s for ))astiiri', and "that
lj|i,lSntlii-'rliind (defendant) shall heat liberty
liBHiuK'tiihuild and make any iiniiroveineiits
luvtiuiik |iri'|iei' upon any ]iortioii of the said
iiiviiii^i'" lyin.i,' outside the said lirnsli feiiei'
IrjiHlit iil"'U the said iireliiises, without any
L'jtii'ii 111 I't'ut or any eoiisideratioii tliere-
-llfM, tli.it the cleleiidi'nt li.iviiiii ini|H'oveil
gi,iiilt uiioii a liortioii of the land nut.side of
Ijpjjli fi'iKT during the term, was entitled
Jjyiiiios.ii'ssiiiii thereof. I.ioiin i-'l v. Siilln r-
,. I'.lli. I'l. old.
liilii'ii "11 till' following eoveiiant in a lea.se to
T.,;,,j|,titl', exeeuted l>y !,. in his lifetime, on
[jii .\pril. l''^li-. f'"' twelve years fioin 1st
il>(i;i: •• And the said lessor envi'iiants with
I'l'lk'.^si't' l"i' unlet enjoyment. And it is
jtAJiivi'l lu'tweeii the parties hereto, tliat
laii l.ini'twithstandin^r ■•in./ thing heretofore
lit-iiitMi'Vl shill he at lilierty to take possis
1 itlii'saiil premises, and every part tlieroof,
jVi'ttliirtv ai'ivs fov crop this fall, resei'ved to
ii^,,] till' said lessor, ) on the '-'Oth ilay of i le-
fciiRXt, ' ilSli--) lU'fore that ih'.y tin.' lessor
pLiiiititl, on •Jdtli tlitolu'r. went to
Slw:iiM>aliil fiiiind the les.sor's widow there,
\aiiiuii her right to dower, and refused
He then demanded po.sse.ssioll of the
jKiiiit*. i'\eiutiiis of L., and lirought this
Jsii; lli'lil, that the eoveiiant for possession
|4t'.1ltii lit lletoher was indeiiendelit of the
Hirtiulvi' years, wliieh eoinnieiieed in Ajiril,
liiiiltliat, tin High the plaintilV might have
ciiiiHil ciuetlilelit, he was also elltltleil to
i^tnkiiag'js fur lireaeh of the eo\i;naut.
|i.,|«iiv. IVioi'/'o,',/ ,7 ((/., i;{('. 1'. .">.'{.
iTttiyaiatiiiii set out a deed made hetwi'en
pit; ami ilefeiidant, liy whii'h defendant
i t'l |ilaiiitill's I'ertaiii land for a term of
nipimailay passed, and assigned as a lirc.-ich
Jiitiui'laiit had not given pl:iiiitill's pii.sse.>
f'ttuililiil tlieiii til enter, and they had liceii
iiialili' til olitain possi'ssion. I'lea, that
lu'n;;!, >aiil deed defendant had enaliled
psfc I'l iiitur into and ohtaiii possession:
...... "I! 'ii.'Uiurrer, that the lireaeli assigneil in
IteliiJtinii was siitliiieiit, lint that it could
psust.iiiiiiil hy proof only that deleiidant
V't ;nvi'ii aetual [lossession, for it would he
f**; !'i sIh'w that plaintiH's had attompted
lit! l>';SMsiim, and had heeii prevented by
»« • >iimi' ailversu oueupation, not with their
consent, or liy some physionl iniitudimeiit or
hindruiiee plaeed in the way l»y (lefendaiit, or
(•ansed in some way to he donu l>y his means
with intent to prevent iiossession lieing taken.
Held, also, plea had, for that defendant was
hound to do more than simply deliver the lease
to the jilailitiH's. Where the ilemise is liy deed,
an action may he maintained on an im|ilied
covenant to give possession, when there is any
proper words to create a covenant hy iinpliea-
tion ; and Semhie. that the word "demise,"
will have that tleeet. Sukih/i r-i ii nl. v. I'm',
17 ('. I'. :H4.
Si'e l)un\. Sn,i,<,:s v. null, ii, ,'> (,>. I'., nil!*, p. •_M)!ll.'.
4. ('•iiinii' iii'i nil III mill Ihirni'iiiii III I'lrm.
I'laintilt' leased to the defendant for one vi^ar,
with the privilege of hnldiiig for an iiulelinite
time, on condition tli.it three months' notice in
writing shiiiild he given prior to leaving the
premises, and prior to the terniiiiation of a f'dl
year, hy either jiarty so inclined : — Meld, ihat
defendant was honnd to give three n oiiths'
notice of his intention to (plit at the end of the
tirst year. Cnimlir \: Murli,,,, <( {). jl. •.•.-|;{.
Defendant leased to the plaintiff " that certain
frame house now standing and heing on lot \o.
10, " itc. , "and hcing that house now ocenpied
liy him, also the use of half of the liarn standing
on said lilt, for the use of his two cows, from the
1st dav of Noveinher now next ensuing for and
until the 1st day of .Xjiril fnllowiiig, a jicriod of
live months," at a iiionthly rent of C'2. 'I'lio
plaintitr covenanted to keep ii)! the fences ; and
it \>.is further a.grecil tli.it if the plaintill' should
withlmld pii.ssessiiiii of said iireinises. and should
r.'inain longer than the 1st of .April, he should
]iay at the rate ot I'.'iO per annum ,is rent, to ho
paid monthly : Held, that the lease was a demise
till the I, it of .April, with an option to the lessee
to remai'i afterwards as a iiionthlv ti'iiant (not
from ycM' to year) at the rateof t".")0 .i year ; and
that it las not a demise of the whole of lot M).
as alle-ed. Mrl'ln r.-n„ v. Xnrrls l.'i i). I!.
47'-'.
Defendant mi l.Sth Octoli.r, l.S.VJ. grantcl the
land in i|Uestion to one S., to hold " to the .said
."s,. and the heirs of his Imdy, for twenty-one
years, or the term of his n.itiiral life, from the
1st of .April, I.S.'i.S, fully to he complete and
emlcd," hut not to he niiderlet to any iiersoii.
except t 1 the lamily of the said S., for any
period during the said term. .A yearly rent was
reserved, which S. coveiiaiited to pay, and it
was ])ro\ided that mi failure to perform the
covenants the lease and the term tliereliy
,'iantcil shmildcease and he utterly null and void :
Held, that hy the lease S. took a life estate, in
« hich the term merged. Dii/i/r v. /'ulnii-ivii, I'.l
i). 1'.. 411.
I'ndera le.ise dated 1st Octnher. IS.">7, haheii-
ilniii for live years from the late thereof "yield-
ing and ]iayiiig therefor on every lirst day of ( (c-
toher during thi' said term, ' it was proved that
the tirst year's rent had lieen paid in advance: ~
! Held, that the term included the whole of the
I l.st (Ictoher, l8ti-_'. MiCiil/iiiii v. S„i/i/i r, 10 <.".
; 1". 1!M.
1 riaintili. K., on l.st April, IS."i8, loasud to de-
' fenilaiit, I!., for five years at t'lOO a year, payable
■20'2.\
LANDLORD AND TKNANT
Imlf yearly, (III tlic'lst iif A|iril ami Mctolior in liad flicrciiiitu set tl
A\
il 1>V tlic IcMNi; it
was a;,'ivi'i
that
clay aiicl year liist alu
"11' !l:llliis ,111,1
il' K. (till' Iis.siii) ivi|uiri' the in-ciiiiHfN luifori' af^aiii.st tlu' sIhti!!' i,,|- t
\>' wiittdi.' I
tllf ti'ini i'X|iiii'H, 111' is ti( pay f.'tO to II. (tlir Aii;.'iist, ISIi'J, witlmut
li'ssi'i'l fur |iipssi'ssiii|i ; iitlicrw isi' sliiiiilil It. re alK'j^ccl tii lit' tlii'li dii
i)iiirc til li'avi' lii'I'iiri' tlir ti riii, lir luis t(i |iay K. timk cilrt't frmii tlic <|<
IKlllu' W
II >iii nd
!<.ati-t\ 111-
: li.'M.
tliat t!a
C.-.II.
On till' (Itllnl Si
iti'nilii
till iiiitilinl ili'lVnilaiit that li
KSIitt, the plain- ISIW, nut iVdin tl
(111 nijiiui' til
ilat
'"^'TV. "II fh,. '.)|,
lii'i'iiiisc.s nil the loth lit ( li'tdlicr ti
'I,
i\\ ill'', am
I' nil the Ist III' April, ISiCI : f
tint tlic tl'
rt'iit
payalilt
mi that (lay he ttniliruil tlii' L'."((>, \\ hicii ilrl'cn- tliit ilav, tl
in ailv.uii
lit tl
I" lir-t '
• laiit
lli'lil, that he wa.-i iiititlcd tn iif .\piil, ISd'J
ic wiii'il.^ "tliat i-i t
f, was lint
I'i'lll.U lllrl'civ t,
inaiiitaiii fji'i'tiiu'iit. It was mit pniviiil at thi' tin; and that the pl.iiniin t,,
tri.'il \\ ht'tlii'i' th" nut diic nii the Ist i if (Ictnlirr nnnsiiitcd. Ilil/y. MiK;,,',/
"av,
ilsa ,1
d \><
I'll |>ai
u'l'ii Hlii'wn
fill' the ni'Xt six niniiths in advam'c liai
«ir not. <,)iia'n', « hftlii'i', it it had 1
that the plailitili i' coivi'd it, this \\
his rij;lit. A>/!/i.'/.// v. //-//-.v, -'() <.». I!. I.VS.
l''ji'i'lMU'iit for lilts I.'), I,'<, and mirth half nt I'J,
ill till' 'Jml cnii. .'^.■indwii'h. Di'fi'iidaiit, in his
Held, aHiniiin;,' tin
Id alii'i't '.'''"*'' .'^l'"!'''^ •' ' till' day of
thi
I llMllj
l"'"B
lI'OVC |l|,|n|||,.||| ,||,
ii'iTliir
I' « a>
from its dat
mid that tin
fast'. 111 I'liiinictinii «itli tl
iiiiiistam'i.<, did ii.itall'ird s
I'l' lAW'llll
jil'ovisi.,!,,
"■iiin.iiii.iiiJ
lintici! nf titli', liisidi'S d
titl.
The
d title
I'liyin^' the eiaimaiit s t|
eoiitiarv iliteiitinli ti
lintills, nil
e III hiiiisell .'IS their tenant. \'. ('., di
Npra-jie
' IMstllv uilitf
iilli.uiit,.vi,l,.
iler tills
notu
nt
'h'ln
A'. C. A.\V
'•• ■•! K. >V A
ilaiined that the defendant « as tliereli\ deliarri
.\., liy iiidelitiin
111 IS'JIi,
trim dipiitiiin their title as lamlh ,
a receipt fnr rent in full tn the .SIst nf Mareh, lielfnlllied
ind prnvei
I the reiit.s and enveiiaiils \,\ M,
ISfil.
Tl
lis aetlnll was enliimenei
d
Oetnlier, I.SCj. 'I'lie defell
t h.'lt his teliaile\ eniiimeiii'i'i
III tht
1\
|-_'th
lilt, 111 reply, prnvei
■M;
i\ . and tli.'it I
pertnriiied, " i^raiiteil, di'iiiisid.
tn .M., hi.-- heirs .'iinl a.-^Miu'iis,'
,1 lieiidiim, " unto the said \\.
sium;, frniii the day of the li.it
ellllt r,,lld
iiii'i Mj
'I'li^lili r:lti|
. t..l„.
•■iii'l tl. liiH
I'l'it.'iiii Lull]
iii'ir- aU
Ins
if the plaintills in .\pril, KSlil, w liile vLsitiiij,' the
the tl
larin.
I xiilessei
Ins satistaetinii as tn its state,
and
rill III iwciitv-
liayiiijiyeailyi
im
1 tnld him he wished him tn remain nii.
Tl
ami assi''iis.
.-. lid. Tl
e hi|-i,'i.|, ii)|
vid
'L'ars
jury 1
;;s,lii| telintiiM.lii^
1 I'l'M'll.llltl
ia\ III'' Iniinil
nintioii for a new trial
lor the plaintills, and that the '"I'l'.v rent, and iiy .\. lor i|iiii't (■iij,,yiii,iit(l
r aL'elit nil the lileliiises on the term. .\t t he end of the tiTlii, M ;;ij
mill lor the I
lemlant was their aL'eiit mi the premises mi
reel
I"
Held, that the di
tir
tn A.
exiileliei' n
f th
e eommeneeineiit nl the teiiaiie\'
lilt
lease
he was a
Ih.
sayiiij,' lie liail m, ii|ii||,,|.
d tl
.M,
IV W.is ell
titled tl
.ireater welyh
t than a "1""! "" '
lelillite 'lliilti'st,
receipt dateil the .'fOth nf Mareh fnr rent ii|
went ill after liiii
eolltllllli' Ml
iiidiiiL', aii<
III.
,//,
7 ^.
11"//, ll'C. I'. <i.-i
tl
le ilevisee
if A.
poll e|iiliii(lit l.i.iiiij
that
if seisin the fee simplr j.'raiitc.l in til
\WII|..llt
riie plaintiH leased tonne H. a mill fnr three ,.,,iil,l |„it take ell
years
prnvisn ;
frmii the !)tli nf Mareh, I.SliO, addin.' this
eet.
rnviiled til',' les.see s
hall
nimiths previous to the iltli
M hieli will
in the year l.Slil
within three
Marili next,
the
]. It'll
II. I the hiil.eii.lii,
liiit
twenty one years would sta
was ^'I'anteil to di'tiriuiiie the fiict
.\lrl)ui„il,l v. MHlillU, L'li (,). It. 4:,s.
iiotiee ill writine, that lie will keep the mill on I'laiiitili, liy deed, leased laini fn
the terms hereinafter set forth." Ndtiee was live years from Ist < k'tolur. I.siI'.'.m^
'IV en l)V
the 1
es.-ee lietweell the iltli of Deeeni- hy to ^'ive up possession on tl
?-|. 1 v.. "^ I..V ,^,.-. , V ..V I .. w ,. ,,,v ..11. .r, , .V V 1 ,i, -■.. - ■ /^. - ^ --I' I -.. v.i. ,
ler, I.SliO, and the Ittli .March, l.Slil, nf his iiiteii- term. On the lease was emlor
timi tocniitinne the Icise for the three ye.irs. meinoranduiii, that if plaiiitil!
Ill an action aj,'aiiist the snretie.s of the les.see for hmd he was to have the >aiiie nut tivi fj
rent, the defendants contended that li\- the lirst three years. No l.ind
11' e\liir,itl..llJ
'I'll III! miq
■leaiv.l ;
terms of the lease the notiie should ha
'II till' until the fall of I.Si;."i, ami in llie bll .
given iirevions to tin
thii
.mmeiiceiiii'iit of the he jiiit in a crop nl w lie.it. .\ftei tli
ths ; Imt Mi'ld, that altlimi-h the in- of his term ,S. p'^rmittid him tn
telitimi of the Jiarties ini!,'lit lia\e heeii to give premise
d
tl
le II
!inil receive
the iirovisn
iree clear im
IC nntice Wii.-
iths" nntice. vet hy giving tn S. tln' place witi
.AlH'l
I hd
tn II.
'iveii within
hilli
•il. le
all (III It. In
tile land aiiJ
three niniiths prior tn the !ttli nf March, I.SCI ; therenii to two of the ileleinl.iiits f.ir live
ami the iilaiiitills w ere entitled to snecoed. Sh'i
,tii V. <;r<ii,i 1 1 ,i/., !•_> c. 1'. ;ip.-..
The jilailitill', liy lease, coiisi.'-;ting of seven
trmii
ipit
the Ttli .laniiarv ii
"tly,
1
.ets, ami lieaiiiig date March
entered upon
le
prcvnui.-ly, ;i]i.l
when the w heat had lilnlHil. pi
the 1:1
th.
ilel'i'li.l;i
I "tth ISI!"' lie- i'^essinn under .S,. and cut the 1 ii.|
i.sed certain incmises to \V. On the -Mst nf
took
lossession o
llde
f the wheat, ill sliinks i
.lulv follow
III'
this lease was cancelled liy ai
land, and iilaintitl' hrought Irnver: lleU
lli»tninient under se.i
1 ; th
le secomi ami tniii
f| the memorandum if not ]iaitnf tl
sheets were taken out and re-jilaced Iiy others,
and it was re-exeeiited and re-delivered without
any other alteratinn. As it then stood, it was
dated as liefore, to linhl " frniii the first day <'t
April nnw next," fnr nine years,
next ensuing." at a yearly rent, payalile "in
ilvaiiee, that is to .say, on the Ist nf A]iril,
liy deed, was vnid, liecaiise the tliici'yt
inimeiice I mm a tune lutiiii
to
eleiiriiig of the
to lie in writiiijj
lam
it re. I HI IV
if [lart .if!
om thence
fn
ththJ
he emistriled ;is eo exteiij'ive mily hi
and not as extending its iliinitimi IkVI^
Kiitilw. 11'/,;/. i/.i/,,l!iC
111
Oetnlier, ISf!'
J.SIil', uiid on the 1st of April in t'lieli year during Deelaration for oveilliwiiij tiir )i
tlie term ;" the concluaiou lieing that the parties , land, liy inaiutaining a dam mi a
LAN D I -on n AND TENANT.
iiOl'G
•m
tlllil !l.mil!< M\,\ M.;,l,_
ilicivr wiittiii. ' III an ad
f li«r taking W.s p,u(i]
iciiit Hiiti'tyiii'^ a Nciiis
I line ; liclil. tlia't till!
IK' ilrliviTV, nil tlif -Jlst .
■ iluti' : tliaf tlu' t.'iiii ]i
il, lSi;:i ; tint til.' lii-t y|
iulviuni-," wa« imt
Is, " tllllt !■< tn say, nil thi
ciiii.' iiirnly l;ilsa iIchmiiJ
(ilaiiillll tlii-ii'fiirc wa- ymi
.. M Kn,.l.,;i. ■SMI l; 111
tliii ali'ivi- jiiil^iiHMil !haj
till' il.iy 111 IT lAunitiiiiu
.ml that till' lunvihi'ii
oil witli till' Min'inniiliiiij
lit, alV'inl silHi'.'uMit rvhii iitl
II til jiistifv ailillrii'iil Mill*
■. ("., A.Wils.iii, .l,.aii.lMd
'. ;t K. .V A. '.I.
Ill', ill \S'2i>, in roUMiliratl
iivi'iiaiits liv M.. tu 111 |>aid
iiitcil, ili'inisril. ami t" luij
iiiiil ii.-'MiiiiiM, I'l'i'taiii l.iiid
till' saiil M., liiM lull- xa
iliiy 111 till' il^iti- luiviii, I'fl
iif iwi'iity-iiiii' yi'ai>, yid
,yiiiu'iii>;saiil tiTiiitiiM .liij
(ill. 'I'lii'iv was a inviiKiiitl
iiy A. t'iiri|uii.'t i-iiinyiiniitd^
the I'liil 111 tin- til-lii, M. ^
siiyiiij; 111' liail H" liiitlur^
l(i\V"il ti. riilitillllf ill
tf 'iiiili rstaiiiliii'-', iiii'l 'I' i«
illl. ri"ili I'iirtllliiil liliilHI
A. ; Hilil. that witlimit
<iiiHilr i;raiitiMl in tiii' jireil
I'lli'it, ami till- lialn'iiilU
,i's wniilil staml : Imt a iii;l
,1 ih'tiiniini' tli^-' 'i'»-'t "' '
/,7,;//;s -Jii ',>• II. -ias.
liK'i'il. Icasfil lanil fnnii micj
Istdi'tol'i r. IM'i'J. a;:rirnig|
,l^.M•ssi^n nil till' I'Xiiiratimij
Ir isi' was iinlni'si'il an uiu
hat if lilaiiitilV iliMiiil aiijrj
III havi' till' saiiK' ri'iit iivi I'd
Nil laiiil was I'll ari-il liy I
11 ,,l' lS(i"i, anil in tlii'lalltiS
,1 wheat. AUiitlii'iAl)i|
,,.niiittr.l him tn iviiiaiii
1,1, till' inllnwm- .Aiml lid
, ulaii' witli all unit. In
,v ili'iil, li'asi a the liuiil and
i;,,t till' ili'lVii'laiits fiir livej
.laiinan invvinii.-ly, ;iii'l
the whi'at hail ninniil. M
,' laiiil. tlii'ii in iWlVii'lailt<
iUiiliiit thi.'iii'li!'. I'^'e'
,,(■ till' whuat. Ill '''i'"';* .
l,t,|V hri.n-htti'i.v.'V-. lIcM
„iitiiiitliani.ttliilo>''»<'
rfi.i.l, hi'oaiisi' the tlmi' vi'f
liini a tiini'fnUircvi/.. 1
1 laiiil. ami it iviiiinvil, tl
L . :uiilifl':»t"'''"'T'
J.„L.,Kttnsivc'iiiily\vitlit
thd
ki'iiiliiij;
iliiratiiiii I'lVd
ill
K,u,i:y. ir/i;'-'"'-.!'
1 for ovi'itl')«iii.4 <'»■ I'
■tiuuiug a ilani mi a -tie
|rr,iili;li '•• •""' ''"'** jii'llllillj,' I'ilik tlir
' I'ka : I liaf "iif l^. Ii'kI iiiii'chiixt'il
1 .1,,. ,riiwii. i ii'l l"'i"l I'-i't •'! till' iiiirihasi'
L iiiil''iit lil'S ria'il|it thi'ii'tnr llDlii tlu'cliiw II
li/dit. i""' ''"'•'l'''.^' ""■'' ''"■ "I" 111 I' I'' till'
ftiiutiniiii' ill till' ilii laratidii. ami (lii'lnn.'
uiiil tn till' iilailitill, will rIaiiiiH iimUr
1,1 iiiiiiiil""' ill iiiisiil tip ilci iiilaiit mill niK'
1.1 isirt III '~'ii"' ''111' tlifii 'i.iiili' tn 111' iiMT
L/liyllic mill Iii.ml iif iliti'iiilaiit ainl II. hy
iLitliiii 'I'" •' ''• I" ''"''' ••<ii 'iiii^' as till' laml
\\k tlllil' ''"■'''i <i''iii|iiiil iiliil uviiHuwril
j|,„,,i,l ; anil tliat ili'tV inlaiit has i'Vit simu
liin'Watcr 1" iiiii'il liai'k, ainl has m-i'iiiiiiil
I l|,|i;ilasa mill immhalnl lia.s kt|.t tht' (hur
T,i\iti'l "'•'"' '■''""^' 'ifiK'it •1''^ it 1 1 II 11 w. IS, liiit
Jlljir. wliii'i all' tliu trisimssi's I'diiiiikiiiuil
|]jj],| ,,ii ihiiiiini'f, a ^;iiiiil [iku : that the
, 'iiUt in till h'asi' Jilfailril, was siitiii'li-iitly
K.'s I'.'tatt' to iiiahir hitii tn make
il.,. was siitlii'liiitlv I'li'^ili'il. A'. I/' \.
' 'jiKj. 1!. :!-io.
klinitiiiii. that .1. M., lu'iiij,' si'lzi-il in iVi' nl'
•aibiiil, li't it liy ili'iil tn ili'tViiilaiil fill' tell
mill lilt' ih'tiMilaiit tluitliy inniiiisi'il to
,..! till' yi'ai'ly ii'lit. s|«i'iliiil ; ami after-
iluiiiiH saiil tiTiii, ■!. M., liy I'l't'il ni'aiiti'il
■i.!,iiiitilt all liis I'l'ViTsioii ill tlio said land :
vvtf.r's riiit hiiaiui' iliU', and rriiiains iiii-
lii'ii, tliat it was iirovidid hv saiil lU'cil,
kif.l, M. sliniilil :it any tiiiic Iwim' an o)ii)oi'-
jtt'i Sill till' saiil lot. then thi' .said iliiil
liiUiiiiu'i'lifil. anil ili'finilant should jiivo
: that latori' any ii lit l.i'iann' diii',
I ij.iaii iili|"'l'tniiity nf scllinj,' and did si'll
lit!.. till' Iilailitill, and hy ili't'd nraiitiil all
■iviwi'ii tlii'ii'iii to till' iilaintiir, as allf^^i'd ;
jatil .1. .M., with |ilaiiititV's i-oni'iii'iini'L',
-liil ri'iit liii'.'inic iliiu, na\ t' notii'f to
lifflt that 111' liail sold thi' said lot to thi'
iBi, ;iiiil that 111' thi'ii put, an I'lnl to the
lfli.l,<:ii.l tuin was tlii'ii put an inid to hu-
litniitaii'llU'il illlf : lltlil, Jilr.'l had, piT
irivT. •!.. hi'i-aiise tin; imtiri' could not hi'
i.y.l. M. al'ti'i' lie had assi;,'iiid his nvi'i-
^fcl it iliil lii't apiiear that the lease hail
latlliil, nf the term put .'in end to, or
1 ,i!n;ihait liail '^\\\n up the' plai'e. I'er
tt .1.. liieaiise the sale alleged was not
itklii'iivisimi, lieinj.; a sale of the rever-
lufct til tlie le.'isiv not of the land with
Ijaciliati' right of entry, /'i /i/i< r v. lintli i\
.". ili'tiiiii III I'lii'riiiiyi ,
tatirr. Hill sets forth an imleiitiire pnr-
!.. Ill' a le'isi, w ith a eovenant for leave
l«tt tn Imniiie pureluuser of the ileniised
«iiiitrtaiii stipulated ti'rni.s,liiitalleij,e.s
Iferc ami at the time of the execution of
Ifcl iiiiliiituie it was expressed and iimler-
Viy tilt' parties thereto that it sliimld, and
lilait It iliil, iiperate ami take efl'eet as an
Ifawiiviyaiii'e and im)ft.(age nf the preiii-
litwii iiiiiitidiied, and that the amount of
fitstrii'il was ileterinined liy ilie interest nf
iwtlaa iiiiiiR.y, f 1,000, ainl that the rent
iJIMjiiiiihw interest thereon ; and the hill
ii'iigst nther things, an aecouiit of
F'lt.liii.. tut' iiriiH'ipal and interest in re-
' ' 'he iiui'ilinse money, and a specific per-
"" 'Mill' idveiiaiit for purchase. l)eteu-
dant ♦leiniirred to the hill, and the di mum r was
allowed. r,ill,„ V. /'//'■., 1 O. S. :«!•_•.
.•\. leased to l(. nliou.ae for llfteeu years, and dur-
ing the tei in, liy agii einelit, A. therein assented
to an ass|n|inn lit hy It. toC, and gaM't'. the
option to pun hase tlie fee within niie year, at a
given sum, p.iyahle hy iiihtalmeiitM ; and ( '. at
the time ol the agreeiiiiiit, paid A. f.'O, to he oil
aeeouiil of purchase inoiu y, in case he ehetid
to piireliiise, othi'lwisc to go for lent. 'I'liere
was a proviso in the original lease to l>. that,
should the III use he hllint. the li lit should ce.ise.
( '. did not pui'eliasc, and the pnmises were
afterwards huriied, at which time. Imig helole
the c.Npiiatioli of the lease, the rent iliiiwas
L'l-J Ids: Meld, that, not wilh.stamliiig this
li|o\ii.o, A. was eiitithd to rent until the C."iO
was ulisoihcd. I'iili-ir\. \\ illiniii'-, ',i i'. 1'. ,"i().
liy an iiidoisenu nl under seal upon a hasi', it
w.is agreed that the lease was to he c.ineelled on
payment of the sccniid iiistalliK lit ol purchase
niniiey under an agieenicnt tor pun liasc ot the
lircniises leased ; liiit that, if the ngrcenuiit hc-
I'i'inc Void hy iion-fullilineiit nf its teiiiis ly the
time fur payment of the second instalment, the
lease was to rcinain in force ; ami in ease of the
lease liciiig cancelled, no rent In In' /miil after
:fril l-'ehruary, liS(;;{, the date ol the agremieiit
to ))iireliase. ruder the lease the rent was pay-
ahle in advance, and at the date of the agne-
ment to purchase a i|uarter's rent was ovenliie,
having matured on 1st l''ehriiary previously.
The seeniiil iiistalmint of purchase liiniiey was
duly paid and the interest also, according to the
tenant's evidence, hut according to the land-
lord's it was lint Jiaid at the time, though he
admitted that he had agreed to allow the 'iiter-
j est to stand for some limnths alteiwards : Held,
! that hy the mcinoraiidum indorsed on the lease
\ the rent payahle in advance was not to he paid
in case the lease was cancelled, and that il was
, eaiicclled hy paynieiit nf the scininl instalment
without the iiiteiesi, for the l.iiiillnrd waived
payment nf such inteiesl at the day, and there-
, tore : Held, that the landlord could not leenver
the (|Uarter's rent which tell due nii 1st l'"ehni-
ary, as this was either satislied hy the agreement
and payment of inoney mi the Ilrd I'ehiiiary,
w hen the liist instalment was p.iid, or ahaiidoned
hy the nieuioraiidum w ith all other rent, w hctlier
accruing due hefnie or afti rwanl.-. /'n/i/i v.
/.V ////„/,/.-., 18 ('. 1'. 110.
! On the !lth of .laniiaiy, 1.S44, one .1. \V. took
possession nf the land m i|iiestion under an iii-
' denture of lease, for lour years, e.vci iited liy <'.,
the owner, under power of attorney, at the rent
of f 1 .") a year. This instrument also eniitaiiied
the right to purchasi Inr i:'.'M, t'.'O tn he jiaid on
the e.xecntinii nf tile instrument, and the halance
in fniir instalments nf i.'iO each, nii the ',1th nf
.lanuary in each year, the lirst payment to he
made on the Otli of .laiiuary, IS-l;") ; and if pur
chase carried out, in lieu of the rent, reserved a
sum eipial to six per cent, on the original pur-
chase money shmilil he jiaid. .1. \V. made the.
lirst jiaynieiit of C'M at the time of executing
■ this instiuiuelit, and deposited L'.'O in the hank.
; to meet the seennd ; hut the pi isou in wlmni tliu
legal estate was vested having died, it was not
1 paid, and nothing more was done. .1. \V. rc-
. iiuiined in possession until his death in IS.'iO;
I when he was succeeded hy his son, to whom it
I appeured that he had previously sold, mxI the
!f
-^"-f^frrS
2027
l-ANDLOHI) AND TKNANT.
Niiii t'diivt'yi'il to thu (lufoliilaiitH, who ciitcrt'il,
mill IiikI lii'cii in |iiiHH(-HNiiiii v.wr Hiiici' : livid,
that II., tilt' iiliiintil)', claiiiiiiig iiiiilcr C.'h will,
WiiM liurri'il liy the Ntatiitc. Ilt'lii, iiInii, that tlie
fiki't (if tlif Hiiii Hlii'wiiii; to the ilcft'iuliiiitH, wlii'ii
hi^ Hdlil til thi'iii, a Iftti'i' written liy < '.'« attoiiify
lit the time ipf his fatlier'» jiiirehaKe, tii tlu^ jier-
Hiiii then in ehnr^e of the hinil, tii ileliver pnHHeH-
Hiiiii to liiN fittlier, iliil nut create a new teiiaiiey
at will U-tweeii tht: ilefemhiiitH anil ( '. Ilelil,
almi, that thu exeeiitinn of a ileeil in IHtJ'J, liy .1.
\V. 'h heir-at law to oiu^ It., who in IH(»!t, emi-
veyeil to the |)laintift', iliil not ilefeat the ilefen-
ilantH' title, HH they were in ]ioKHeHHi(in not in
lirivitv with him : Helil, alt<o, that aH the entry
of .1 . \V. iimler whom the Hon anil the ilefenilantH
elainieil, waH iiinler ( '. , the ilefeiiilaiit eoiilil not
ohjeet to <'.'« title at the time of. I. W.'h entry.
t'lililKlf V. Sfiill, mill ('iilninr v. AV/r, "i'J *'. I'.
551.
The lesNi'i' hail the ri>,'ht of purehaNi', on his
ilesiring to ilo so within the iierioil of two years
after the ilateof the eonimeiieeliient of the term,
the iHt of .Ajiril, I.S.VJ. On the l.stof .Xiiril, l,S.-.4,
the ilesire of jmrehasiiij; wa.s ileelareil : Ilelil,
in time, the il.iy of eoiiimeiieenieiit of the term,
1st of April, IS.Vi, lieinj,' e.xeliisive. Siilliiilniiil
V. liiiiliiiiiiiii, i) Cliy. I.V),
Wlieri' a U^ase for years contains ,'ui agreement
for sale of the fe(s tlie right to purchase goes to
the heirat-law, not to the personal representative
of the lessee, lltiiriliiiii v. (Inllaiihi r, 1) Chy. 488.
Atlirmeil in njiiie-al, but the decree varied liy
directing the vendee of the personal reprcsenta-
tive to execute .'i mortgage upon the property,
the conveyance of w liich he liail olitaineil from
the lessors as assignee of the lease. .V. ('. 2 K.
& A. .s;{s.
Sainpson /•, Mc.Vrthiir, S Chy. 7-, remarked
Ulion and overruled, so far as tiie same decided
that the right to ]mrchase contained in a lease
was personalty. //(.
The ow iier of vacant land leased piirt of it for
nine months at a nominal rent. The lessees
covenanted to .sink on the land, during the
term, a test well to the dejitli of I, (MM) feet, for
tlic purpose of olitaining oil ; and it was ju-o
> ided that at any time during the tcriii the
lessees should h.ivc the option of purchasing, and
the lessor should convey to them, on their re-
iplest, any li\e acres of the demised land at i<\'l
il lot ; .ind that at the end of the term the
lessees should have the option of purchasing tiic
icsidiie at the same jiricc. The lessees ilid set
aliout making thi' well, luit the machinery hrokc
after tiny li.id reached a ilepth of ,'):{{) feet, and
they were in consei)iience iiuiIpIc to complete
the well during the term, thougii they expended
as much as, lint for the accident, the well would
have cost to complete ; and the work hail eii-
uliled the lessor to sell a large iiiimher of his
other village lots at advanced prices. There
wa.s no charge of any «,int of good faith or dili-
gence or skill on the jiart of the lessees. They
{,'ave noti.'c, hefore the end of the term, that
they would take the live acres : - Held, on aji-
jieal, allinning the judgnient of the court helow,
that the lessees were entitled to a speeilic jier-
forniance of the covenant as to the five acres,
notwithstanding the noncomjiletion of the well
to the stipulated depth ; without prejudice to
any netioii l,y thi- lensor o,, th, v,.,,,,,,
V. Siii'iini; 13 Chy. •.>;!,-,. "'
Where there is a cut,,,, t hitH,. „ ,l„.
of lands and aiiotlur pii-,,,,,, wlictl,,, i
not, that if such other |ieis,,i'i <i,.,|i .J, '"'
speeitied act he shall he at hlnitv to InivVll
perty, lllKuehacasct ■ ,s „f il,, ,...,-,„,!'i
contract, and until the pet,,,,,,.,,,,,. „,■ tj
which has heeii so stipulated to, tl„. ni.fJ
vendor and purchaser does i,„t , Msll„.tw,.1
|.artles. I he.efore, wlieiv tliH auM.u „ ,',J
the plaintllfa lease of .i.ta,,, l;u„|, „lJ
amongst other things, tJiev .•.-,v,.,l il,..,, i]
lessee duly Jiaid certain
should not cut, or sell,
"■iits ami ta.\i8,|
. , , '■ siilhr, or |Nr„iitf
cut or sold any timher >ir otl,,., t,-,,, ^-..^.J
the lands, except for the piirposr, „, ,.l,,ri|j
the use ol the premises, 1,,. si,,, ,,1,1 1„, .j, ||
to puichiise tile .same at a ivi'taii, „ i,,,,',; ,
ftnd It was admitted that detaiih l,a,| l„,ii|
as well in regard to tlie paviiiciit m iviit,,,.,!!
as to tlie cutting (,f tuiihc-: llcM, thai
right to insist upon asaii- was Imi, it,.,|' ,,,,1
standing the lessee's ollci- to make p„„'l tJ
and taxes, and jiay the am itoi p,,,, l,;„i,|
agreed upon. Il'ill \\ Cmii./.ii;,,
•-'81.
"/"'"/'. '-4|
See i)iii' d. ''riiiih/iiiiil \-, fi;,,,,',,!,,,!,!- _\^
Viet. p. '_'08t) ; .itiniiiiiiiiui.t, ;{ I', l; ;{-(')'
iiiiiii. Wnrtill v. /«,■,,' It) I,. .1. .ji,7 .j ojij^Ji J
l.'lliiii V. /.',»/,,•>, \-l(\. I!. .-,71, |, ''2fxx,.i;^
Lijiiih, 14 (^>. |{. 148, p. 2l»4-.>.
(!. < 'iifniiiit /,„■ i^t,i\,i ]-;i,j,iif,ii,,ii^
Hy letters patent, heiniig date in ISin.t
lands situate on tlic water's .••I"c in t),,.
Toronto, Were granted to ma A., tin:
containing a coiulition for the eiii tinii
esplanade acttording t,i a ict.iiii plan,
three years. .\,, l,y indelitiiie, d, ihImiI till
lands to M., of whom plaintill w,iv .isafl
with fell covenants .ig.iiust all iIk' u.mIiI
M. covenanted to pclnnii the n.ii,litiJ
the patent. The l(> N'ict. e 'Jl!!, .ua. teilj
unless the owiU'ls and lessees sliuiiM
twelve inonths, erect the es|ilaiiaile, tin i.o|
tioii of the city of Toronto sh.iiiM iln itj
impose a sjiciiil rate to ihtray th. ex
thereof : and l,y I'D \ict. c. SO, liiitlm
were granted to the corpoiiition. Thr ool
tion entered upon the piviiiiM's, and li\ lill
the s],ace lietween the \vatcr'> nl-r ;i.iw
esplanade, pri.'vcntcd the Murkm;; ni t!ie 1
tills mill. l-'o,' this ti,e plaintill hii.ua
action on the covenant aL.'.iiii>t ilcf(ii.|,iii|
assignees of tlu' lessor : llrM, thit ,i<
of the corpor.ition was ilunc iimlii
authority, (the legislatuiv. i altliniii.'h iIm
did not I'xist at the time nf the i\iciitii
le;use, yet as the liieacli nf cnveiian'
arise from the neglect, frauil, nr pi-dciiiv
the lessor, liut from the noii-tiillihiii ;it
les.see of his own covenants, dil'iii4,iiiti
entitled to succeed. Siiurr \, Hulil'i-ii' '(^
(J. 1'. .•!.■>.'{.
Defendants leased to plaintill' tlic iii-irl
of a wood market estahlislieil in niio "t tlie|
of the city, covenaiitiiig against their "Uli
furence, or that of .-iiiy one liy tiinr
Twenty years previously tiicy h:'il ]
I law, giving the right tu depn-sit mate
LANDLORD AND TKNANT.
I'dMO
KHnr nil tin; I'ipVllwIlt
c'lUltl'iut llftwiiM tlir (,|
L'V |icr>iiii, whctliii lin«
hl-l- lICIhuM .•<ll,lll ilci ;i ,
1 111' iit liliiitN til Imy tlij
c, tllilr IS (if till' cs.tiii. <■
tlic liiTlip|lii:ilhc 111 t\ll
stiiiiilattil Ini llic ril.itid
M \ ildfs Hut I Msl lirtui'd
wlli'l'i' tlii'l';ili;iila('ii,
e III' ri'rtaili liimU, whei
lUjiH, tlify iiLiivcil tliat ii
.•ertain inits iiinl taMnJ
m'll, 111' Kiillrr, nr iiirniitf
iImt or iitlui ti'ris m'l.wi^
ir till' iiiir|iiisfs lit ilcamu
iiiisi.'-, he slimiM 1h- :i'. li|
unit' at a ri'i'taiii iriiiir<
I'll tliat ilulaiilt liaii luiiil
I tlic (layiiK-iit Ml i(iit;iii(ll
jr of tilnlni : lli'lil, till
III iisalc «as fnrfriti"
f's* ulti'i' til liiaki' j^iiiiil lli^
y till' auiinmliif iiiirili:i
(// V, < 'iiitii'l'i('''iiiiiiiuii.'Hl
,„hh,iiil: V. r, N/„i„(. Ml
I iiiiiiiiii""'", •' I'- !'■ •'■"'"■
^/.'l, i(»i,. .1. -jitT, ii.'.'uvi
I'jt.i. Ii. .">7i, i'. 'Ju;t:i;'i'n
ILS, II. ■2M±
mil Jill' V""' A'"./".'""'"''
■lit, lifariiijiilatL' in IS4(I,
till' wati'v'i^ i"!^o ill till'
L'rautt'il til iiiu- A., tlic
iilitiiiii fiir till' I'l'ii-tinii
liii^ III a I't'i'taiii I'liui,
, liy iiiiU'litnri', iliiiiiMil th|
wliiiiii lilaiiititl «.i~
iits aj,'aiiist all tliu wnvld
til |«'i'fiinii tlif ri'iiilitM
,. |i; Viit. L'. 'Jill, Ilia, ted
•IS ami li'sst'i's sliuuM,
riM't tiR' I'siilaiiaiK,', tin- cerf
(if 'rnnintii sliiiulil il" il
1 rati! til ilrfray tlic i)^
•JO Nict. o. SO, 'fiu'tlKi'
tho ciiriHiratiiiii. Hn' co(
111 till' invniisos, ami I'V li
II till' water's iil;i' ii
Mti'il till' wiii'kiii;; 111 lliej
this till' |iiaiiitili' I'li'iia
livi'iiaiit against ili'lcii.liili|
U.s:<(il': llrlil, that as
idii was iliiiii' uiiiliT su
uislaliii'i'. I altliiiuuli till'
he tiiiit' lit tlif i'\i'iuti"n|
ii-.-acIl (if L'livi'iiaiil ill
lyk'i't, fvaiiil. "I" in'i'i'iir^'"
^1111 tlic iinii-fullilmiiit
n (.'(ivoiiaiits, (lufi'iiilaiiti
,s'/(((;'<' V. H<Minii<t\
lsc,l til lilaiiitilV till' ii^rk
Icstalilislii'iliii""*^^"' '''M
|iantiiiga},'aiiist tilling
I (if any <i"i' ''>' '''^■"'
I'tviiiusiy thi'V li"il 1'
i-i..ht to ik'liiisit molten
|,,j niiiiMiHi'M on tlif lii^hwiiyH of tlio city, !
r,,' Hul«i'i|iii'iitly lU'iiiiHcil cfi'taiii [irumiHUH
,|j; tlif liiarki't t'l M., wiio nlisti'Ui'tnl ii
_'i 111 till' saiiu' with liiiililiii^' iiiaU'riiiU,
Imiiitilt tlii'it'iiiiiiii Hucd ilffomlaiitH on tliuir
L,| (iivt'iiaiit fill' iiiiilistmlicd I'lillntion of
iJfli, iiiiil i'liiii'K'"K '' wi'iin^'fiil lircii.Hi' to M.
Linii't ^'>'' '"■"''^''^ ■ "I'lil, that iini'li iictioii
L,tiii:iiiitaiiialili'. /'ii/iiiilili V. C'liiiiniiitiiiii
L|yS tlir ili'ft'ndunts, II riiihviiy coiuininy,
m;' l.uiils fur tin'ii' Htation !iiiil ),'roiiniU,
iiitiii«itli till! fonst'iit of till' iii'iiprii'tor,
lliltlic iWiiiiiiiit to lie (taiil for it wuHforsoniu
ii.it auri't'il ujion. I'l'tViiilants, howuvur,
,1 It until I.SIiti, wlii'ii tlii'y li'aHfil a small
„l It til till' iilaiiitiir for tin' iiiir|>oHi' of a
_j.j»i.. ami ill I.SIiSM., not having;; lii't'ii paid
Ijr laiiii. |i"t 11(1 a ti'iii'i' wjiii'li ii'tiTfi'i'i'il
Vjif iiliintitt's fiijoyiiii'iit. 'i'lii' iilaintif!
L|..ii sui'il ili'fL'iidantH on tlii' lovi'iiiint in
1^ fur (|nii.'t iiosst'Hsion : Held, that ho
111.1 Ri'iiviT, for M. could not liavi' dis|io.s-
ttlii'.li'ttnilaiits, his ri^ht to the land hav-
iKii liV the statutes eonverted into a I'laiin
^Msiitiiiii ; and the eviction, therefore, if
[«» iiiii', was not liy title iiarainoiint.
i\.t;riiiiil Ti'iiiik- It. ir. Co., S.'i t^. H. 57.
Llititinii, that defendant liy deed demised
Lliii.l til the iilaiiititr for live years, at the
[jiMiV reserved, and slihjeet to the eove-
Tjj.l rniiilitioiis therein contained; and
Llrfiiiilaiit I'liveiianted that the plaintitl',
t;tiiii|iiai'tt'rly rent thereliy reserved, and
-miii; lii.i ciiveiiaiits therein contained,
iiioiotly Imlil and enjoy the ]iremi.ses, iVc. ,
tttiilii'i'iii ; and all conditions were fnl- j
fl>. U't (lui'ing the said term defendant
li ami evieti'il the plaiiitilf. I'lca, that
piintill iliil nut jiay the rent Ity said lease
liiLi.i |ii'rf(iini tlie covenants therein con-
Mlnaliy defendant lieeanie entitled to '
|t|>iu till' ileiiiLsed promises : Held, plea
[iniiiiirnvisii for re-enti'^' was shewn, and
lin.u jiistitied the eviction, Imt merely
■mttirs unite consistent with tln^ rij,dit to
,.,, V. Ilniilhiini, •-'.') ('. P. 108.-- ;
,.l., .■'itting in vacation. ;
ipLiiiititVs ileelared npoii the covenant for j
linj.iyiiii'iit in a lease to them hy defen-
miiitin a Iniildinj,', aliove the tlat occii-
tli Wciulaiits, tiiyetlier with .-ill passages,
lie, til the said rooms l)eliiiij,'iiig, allc;,'in!,'
lieitiiikit.'* had distiirlicd tliem in their
wa. I'lta, in snlist'incc, that the nioiiis
|:.ci..fa large liiiilding, in which there
ri'iKiiiis used as ollices, to which access
ait.l from the street liy the door iiiid
iili were used liy the other tenants
a.nwith the tenants of the rooms leased
i.i*;tli:it the whole luiilding was in
fc'ia i-aretaker employed liy defendants
Inrt lamlliiids of the whole and for the
pel iiiiiveiiienee of all, kept the key of
liWiliKir. and locked it after the usual
I'Kirj. after wliiili the plaintitl's could at
ktal.li: times get the key and have access
P^'inis ; that the demise was made siili
j'ii«right t(i nse said door hy defendants
Ife tenants ; and that the' disturltance
IWitludiieking of said door hy the care
►"ntnifa hours;— Held, that the plea
nhewc<l no ilefunee. .Vdilitiiinni/ii/. v. /{ii/iiit
hiH.Co., '.V,(). II. •.'84. (ialt, .!., sifting in vacii-
tioii.
7. f.'iiri iiilill III ij'il'e III! I'liiKi Miimi,
Where n IcsHeu took a lonw of iireiniscH fop
two years, and covenanted to leave the )ireniiseH
without notice at the end of that time: Held,
that on ejectment liroiight hy the lessor at thu
end of the term the lessee could not set Up A
former lease to him for a longer [leriod. />"• d.
Hi Hill urn V. K'lil, .■> ( (. S. 4.H7.
S. /iiijiliiif furnniiili.
See Siiiiiil V. S/iiiirt, 'i (). S. M01, ]>. "JO'JO ;
III illlnliln \. Ciir/iiirillinll III' '/'iii-niihi, l,"l('. I'. •J7<»,
)i. '•-•(••Jit ; Siiiniil, ,-M V. /(''», 17 < '. I'. :VM, p. •-'((•.'•i ;
IhiriM V. /'iV,/» /'I, '.M ('. I', .".ir., |i. •JIlHl; r,,/,:
mini V. I!<<llii-k; '_'.') ('. I'. .■■)7!l, \i. 'HWA.
See, also, IV. '2, p. •JO'-'O.
VI. Lk.\SKs my I'All'nrri.Alt ['kkson-.i^.
1. TiHillili ill '/'ill/.
Where a tenant in tail makes a lease for liven
and dies without issue, the lease ic. alisoliitely
determined hy his death, so that no aiccptaiii'O
of lent liy him in remainder or reversion cm
make it good. The aeeeptance hy the remain-
derman of a yearly nominal rent is not a coii-
lirmation of the lease, es]ieci.illy where a party
di.scl.iims holding as his tenant. /-»'-• d. ii'i-a-
hiiin V. \> ir/iiii, 'A (,». 15. '.Mil.
VII. I'NriiV OK Lkssi:k.
A defendant in ejectment relying ii]ioii a leaso
to a third ]iei',son as shewing title out of tho
plaintiH', need not shew an entry liy the lessen
under the lease, for until some one else he shewn
in possession, holding out the lessee, he must
lie I'eg.irded as pussesseil of the term. /> i. d.
A' (';(;/ < ('iil/i;ir V. Kiiiiiiihl, ."i (,•. Ii. .")77.
\'II1. AssKISMKNT.
1. Liilhililil uf As.^.Hiilliri',
A plea to an action of cuvcnant for rent against
the assignee of a lease, tli.it all the estate of tho
lessee did Hot cniue to and vest in the defendant,
as the plaiiitill alleges, is a good plea. -l/(/(i.< v.
Vi, rli.lt, I (.1. li. .so;{.
A lessee assigns his iiit"rest, ;ind the assignci!
of the assignee neglecliiii,' to pay rent and to
keep the premises in repair, the lessee is sued liy
the lessor, and. upon lieing compelled to pay
the rent and damages, sues the assignee of tho
assignee in a special action on the c-ise for the
damage he had sustained : Held, that he w;i8
entitled to recover for the rent and damages ho
had lieeii oliliged to pay the lessor. A-'liJurd v.
lltiik, () y. 1!. .'>41.
In delit for rent on a lease, the deelnr.itioil
stated that the light and interest of the lessee in
the demised premi.ses eanie liy assignmeiit to ami
was vested in the defendant. It was in evidence
that defendant was at most onlv undur-le.ssee for
IMAGE EVALUATION
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23 WEST MAIN STREET
WEBSTER NY. MSBO
(7ioi 87 J 4503
\
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Si'f
imwF
2031
LANULOPvl) AND TENANT.
Pi.. '1/1'
1 ' '■ ■ ' ■
'•ii .1'
i,i.'il!
Bfl'
Mm
;f
';
a jKii't (if till! ttiiii : — Held, tliat ii uoiiMuit was
rightly diivftud. I.mrh r v. Suf/irr/aml, !• Q. 15.
2or..
I'laiiititl sued dufeiidants, wlio wuro the as-
Bigiieos iif llic ri lit for till- firm ir/iir/i /i/niiifiji' inin
to ''iijoi/, 1)11 a cdVt'iiaiit by his lus.siir to lupair, a«
being a uivonant niiiiiiiig with the land ; Imt -
Held, tliat they weio not liaiile, for tliey had no
revei>ion, and the covenant wonld not run witii
the rent. Mc/Miki/iiI/ v. L'liluiil it nl., <» (^t. 1!. •_';)!».
The jilaintill', lieing lessee of ,S., assigned liis
term aid all other jirojierty to defeiid.int'.-; for
the henelit of his creditors. Defemlaiits took
jxissesiiin in March, and remained until August,
<lis]iosing of the iilMintitt's stock so assi;.'ned ;
tiiey then i|uitted the jircmises, liaving paid the
rent up to Xovcndier following. They re(|Uestcd
the lessor to take the premises otl' theii' hands,
Imt he i-efuscd. In .lamnuy they assigned to
one 15., a paujier, (tlie plaintill' knowing nothing
of this ai-signnient.) After the expiration ot the
term he was sued by the lessor, and com[ie!led
to pay two nuarters' rent ; for wliicli, and tor his
<;()sts so incurred, lie lironght assumpsit against
the.se defendants : dleld, (the ahoxe facts lieiiig
siihniitted for the oiiinion of the court.) that the
assignment \i\, the defendants could not he treated
as fraudulent, and that the plaintiff could not
recover. Held, also, that the interest in the
lease passed to ilcfendants under the assignment,
as set out in the ease. Jhti/ill v. Yoiiiui i-t iiL,
10 Q. B. 301.
Covenant l)y lessee to insure in the name of
the lessor, the insniance money to he expended
in the ('rectiou of mw Imildiugs : Hidd, a co\ e-
iiaiit running Mith the land, and that an action
■would lie on it against the assignee of the leasee.
i>«('<//(».« V. Min-jiliii, ](> Q. H. \\•^.
The tenant covenanted to leave some acres
sown, to lie paid for iiy the landlord at a valua-
tion uiion the termination of the term. The
defendant purchased the reversion from the land-
lord, and treated for the sale of the crops at the
valuation, assuming acts of ownership : Held,
that hy his acts he had assumed the I.uidlord's
liahility, and was responsilile under the lease.
Miirtvii V. .Snitt, 7 (-'. 1'. 4S1.
N. having mortgageil certain land in fee after-
wanls lea.sed it for twenty-one years, making no
laentiou of such mortgage in the lease. He then
conveyed to the ]ilaintirt' in trust, subject to the
mortgage. 1*., the assignee of the mortgage,
proceeded to foreclose, and under a decree in
(!hancery the land was sold, expressly subject to
the lease, to .1.. who received a conveyance from
S. and 1'. and the plaintitt', each using apt words,
("l)argain, sell, ami release,") to convey a legal
estate in fee. On the same day .1. mortgageil to
the plaintiff, to secure a balance of the purchase
money. This mortgage had been discharged
before action, by certificate iluly registered ; and
the plaintiff sue<l defendant, who was a mortga-
gee of the term by assignment, tor rent accrued
uuring the existence of tlie mortgage : Held, 1.
That defendant, as assignee of the term by way
of nnirtgage, Mas liable on the covenant for rent,
though be had never entered ; and 2. That such
reversion pa.ssed to the plaintiff by the first con-
veyance from S. (which contained apt words to
jjass the legal estate,) though in it the mortgage
was recited ; 3. That the sulisequent sale and
ciuivcyance lieing expressly subject to the 1
the reverision was not mcrgeil in the U-i^:\\ e
[ then <lerived liy the plaintiff through p, ),
: and that the jilaiiitilf being still bouiiil K'
lease, defendant was so as well ; 4. 'rii.ii
i idaintiff's dsicliarge of the mortgage ilicl
destroy his right of action for rent |j|ivii
I accrued ; and that he was therefore tntitk
; recover. Cii iinrnii v. l\iilil, 'I'l (), U. ;;()().
\ Held, afiirmingtlieubove judgment tliat T,
i iable to pay this rent notwithstaiidiii;; he
ever entered into )iossession of tlic ]ircm
; the effect of the conveyances being siicli tli;
I was estojiped fi'om disputing the rii:lit nf (
I reversioner to force payment tlicrcot'. ]•;.
I V. ('., diss. Tdili/ v. ('mm riiii, '2 H. it .\. •!;:
One ?il., being the original lessee, ass;i"iii'
I 1'., who dill not exi'cute the assi^^iuiK.nt,
I assigned to defendant by mortg.-ige, rccitiii
-AltcrWards, on a decree in a foiccloMire
hrought on this mortg.'ige, the laud was sul
M. as tile highest liiihlcr, who entered iiitii
i sesion, but paid nothing, and received \u,
vejance, nor was any ordei' made vestiii"
I pro[ierty in him : - Meld, that defendant lice
I liable (in the covenants in the le;ise, iiinki-
I assignment from 1'.. and contimied m imtH
standing the .sale. Miujnitli v. Ti.ilil,-l{H\,\i
^Vhere a lessee of land for five years (km
the land forscvcn ye.ars :- Held, that the ilti,
in (piestion operated as an assieiinient d
original term, and conferred upon tlie (.ri"
I lessor, in res]icet of the pi'ivity of c^tnto t
, created, a right of action against tlic aK>iu'iki
I 'le term for the arrears of rent due m\^^:\■
(iriginal lease. Silliji x. HdIi'iumiii, I.") I '.!',;{
In a lease for years of premises uuuk' tm
his executors and assigns, and assigned \,\ {',,
to the residue of the term to defeiiil.iiit.s \
\ contained, after the usual covenants U\ \idil
' the same in good repair the fullnwiiig \aw\
I "I'rovided always that notlnni,' liereiiiceiitiiii
I shall be deemed, or tak(.n, or cuiistnu'd U
'■ deemed, or taken in any way to c(ini|iel tllt■^
j(l., his executors, administrators, or a-si-ns,
I give uj) the buildings at the expiiatieii the
j which are all wooden and liable to decay,
I sound and good a state as they UdW are
such buildings are not to be w ilfiilly nr
, gently wasted or destroyed ; neees.sary re
j however, for the preservation of tlie siiiil I
i ings, to be done and performed liy tlie siiii
I his own jiroper cost and charge : Held, tli;
I words recited, c(Uistituted a covcii.'iiit, ,-11111
such covenant ran with the land and liimmi
assignees of the lease, though assigns were
expressly mentioned in t'.e iustriiineiit. /
(•/ ax. V. Hiiiih III' i'/i/xr Ciiiiiiiln, Hit'. I'. 4ll
v\a]
lilt
111
A lessee, after he hiid taken jidssessieii iiiu
his lease, agreed verbally with tlielessurtu
at his own exiiense a rough-cast iiililitimi
brick tenement then on the ))reiiiises, with
privilege of selling or removing siieli .uMitii
The lessee ac'ordingly built .siuli aiMitimi,
afterwards transferred his iiit(Mcst tn tlii
dant. 'I'iie lessor subscHiueiitly seld Mini «^
veyed the fee to the plaintiH, sulij(.'(t ti; tl
lease, and by the lessee "assigned te I!..
defendant, who was then in piis.scssimi.l
defendant being about to sell and rciniivfsui
addition, the j)laintitf took prdcoudiiigs t'
[ef(
i[\:vi
2033
LANDLORD AND TENANT.
12034
vlaii.titV thv..u.oU 1. \. ;
lid liMt
|il(:vlii\^ly
rlltitkll in
strain him fi'om so doing, claiming the same as j property ami premises, being tomiioscd of, &c.,
iiarttif his freehohl ; Imt :— Hehl, that tlie ^)lain- for the price of £-2'){). to he paiil as foUows : iT,0
(h)wn, and the remainder in foiu' e(inal annual
instalments. Then followed a c<ivenant hy O.
that if S. should <lidy pa;, the said siinis, and
. „f the uiortg^.,.
^f action for vent
1,c was thereicMv
\,ca1.ove.iudgmcutU,atT.xv»s
e, t notwithstindni, ho l>.l
" osscssion ..f thn;vwm..s;
, disputing tlu. rwU of r .s
, V. fvnm '■'./(, -i I'- '^ -^'-i'"'
the original lc>
. i.xccute the
lit hy uuiit;
iiiiwas hound not only by the terms of the lease,
l.ut tnok subject to any other rights or ecpiities
ixistiiig between the original lessor and lessee,
iuc
reiiinv
(hv. 31
o 1
uivevancch
udil
;v decree
iiiort^i'ge,
sec, assigiH'il t"
assiiiimicnt, Init
_r;ig,;, licitillg it.
'loiieli'MUV '"it
SnM t"
m a
the land w
, thin", and rcccvcl im o ,•
,; S o;deru,adc vc^t>n,tW
-■"^V'inti:;t;';Sii
-^rSdc.s.'-'^> -%
^"J^d'arau assignu,,.ut .> tl.
"ilid conferred «P""
■ct of the pnvity
years
,e
,cr
Irood
tlic uvigiiial
f t'stiiti; tints
t the asMgiiti'i'i
" til'-
i.-.c, I'. ;o).
f premises ukuW toi;..
uulassiguc.nivt-.asl
to ,\cti-uiliUits «;s
fl.cus.ud coven;U,tslo>i.M>il.
'' the following l'i"Vi'", j
lor
.^„d assigns,
f the term
■ cov
;,iA taken possession «*
,vit' "
1110
;n-dii>«i>:V"^ih.:::;:t^>thea*i
Ifter he
I'cet
ffiheu"outtiepre"U-s.
^ST'>r removing -oh
hiihii" sneh verbal agreement to permit the ' should ])ay and save haimless said (). from the
iinval''of the addition. C'Aw v. lidiiiinit, '2'2 rent due by the leases under wiiich (>. held, then
\-_ the said (>. imiili/ (lAtii/ii and convey the afore-
Wmiy. Pn,„<iro»t,4(i. B. 3.'? p. 205!) ;! said leasehohl,an<l the' ap].urteiiances thereof, to
V. H'ctor, 24 Q'. K '111, p. -JOSS. ^'-^'^^ '^^ = ".««1''' f" "fe"\'-'".«^'rt *" '^«'^;«» /'"'y'
* not ail assignment ot (>. s interest. J (ii/lar v.
,V'/«H('l-
2. LhthUlljl of Li'x.-ti'i',
In ceveiiaiit for rent, a plea relying on the
iilaiiitiff's acceptance of the assignees as his ten-
ants, and on his receipt of prior rent (not the
mitsnud for) from them, iis relieving defendant
(tk lessee) from any further liability, is a bad
ulw, as l)eing no defence to an action on an ex-
iiress covenant. Sliii.-<ou v. Miiijil/, 8 Q. H.
••:i.
Covenant by lessor against lessee for not re-
rent. Plea, that before breach,
F- -f r? ;:^r:t;;::rw
rT'r"ta^«tl:cyuowuro;l>.t
l„od a st.ite ,,,, „ 1,1
Is are not to -e . ,,y^,n\
the VV^'^'^'V ll,vtlies;ii'lli'»l
lie and pcrfomnc n,> t n , 1
or cost and charge. H',J
Ice
mmnj; or paying
nitli the jilaintitt's consent, defemlant assignei
iterhe i»; ^^Ko^^^ ,,j„,„,
,eedverbaay^v 1> ;^^^^,j,,iti„„to
:viaitii*
such a.l.lition.
..(iviioiBM • ;- • x„,.,,st to the lit'
,uisferre.l his '"^c >t
lessor «"»'««H"^"J.,jccttotl^
tlio l^*'^;,'^., ^'i^'^posscssion-l
i,ur about to sen ,.„„i;iu.s toU
;^,hvintilf took pt<".'^-'l"'=
nil
|e
ti H. all his estate in the premisies, audit was
aijeeil between them that H. should hold for
till' lesiihie of the term, and defendant be from
that time discharged from the covenants : that
ilefeiiilant accordingly gave np possession to H.,
wlin liehl to the end of the term, and the plaintiff
aiTiiiteil him iis tenant in discharge of ilefeiid-
jiits lialiility : — Held, on demurrer, plea bad,
k 1, Nil assignment by deed was alleged ; and
i Tliimgh an assignment of the term by a lessee,
ami the acceptance by lessor of the assignee, will
[wvent the lessor from bringing debt for the
rent, he can still maintain covenant. Moiit-
ipiifi-ij v. ,Si)i-itci', '23 (^ B. 39.
3. E'tijht.i (if A^tiijiicc'f.
Tilt' assignee of a reversion eannot recover rent
Isanieil due before the assignment. Wiltrork v.
\mIwiii, 13 Q. B. 13.-).
line of the defendants in an action for wroiig-
IWilistress had assigned certain reiit to a eo-de-
Ifaiilant, who I'ave the tenant (jilaiiititf ) notice :
IStniWc, that debt might have been maintained
|l)v tlie assignee for the rent. I lope v. Wlilliif
'■ ■; C. P. 52.
Hi'iendaiit, owner in fee, C(mveyed to U. and
<ik liaek a mortgage. 1). then leased to plaiii-
)ii. and afterwards, by writing, without ileed,
felled to defendant, all the rent to become due
plir the lease : - Hehl, that there could be
ill assignment of the rent without deed. Dorr
■ Ihrr, 18 C. P. 424.
4. Othi'v ( '(ts<'.<.
I In iWit oil a bond conditioned to pay rent, a
pa tluit liefore the rent became due the plaintiff
signed to ,\., to whom the defendant paid the
m, was held good on demurrer. McDoiujull y.
|w«;;, Dra. HI.
|.\rtidesof agreement, made on, &c., between
l«f the tirst part, and S. of the second part,
jtiiesstth that the saitl (). hath agreed to sell,
pi Ity these presents doth bargain and sell unto
.assign)
Siittoti, 18 Q. B. 015.
HeM, affirming the decree of the Court of
! Chancery, 9Chy. 488, that the assignment by the
j per.sonal rejiresentative of a lessee for years does
I not carry with it a right of purchasing the fee coii-
I tallied ill tlie lease. Jliiirilniii v. (>ii//<i(ilii r, 2
I K. & A. 338.
I On the 1st May, 1S.">!), .1. I), clcmised by lease
: under seal ecrtaiu iireniises to K. B. D. for the
1 term of five years. This lease contained a cove-
' iiant that the lessee should not assign with<iut
the leave of the lessor. Siibseciuently to its date
! I the lessee with the assent of the lessor assigned
the le.ase to the defendant for the rcinaiinler of
lis.,
the term unexpired. Defendant then verbally
assigned his right to the term as sub-let to one
P., who entereil into possession of the ileiiiised
premises :- Held, the assignment of and by
defendant to P., being by parol, and being with-
<mtthe knowledge of tlic lessor, .1.1)., that defen-
dant was, notwithstanding it, imiperly assessed
in respect of the demised jireinises. licii'iixi i-x.
nl. Xiirthn-ooil v. Ad'lii, 7 L. •). 130.— 'C. C. —
\Vells.
A lease, dated l.st July, 18(i8, purported to
be made "in pursuance of an Act to facilitate
the leasing of lands and tenements." The pro-
per title of the statute then in force, C. S. II. C.
c. !)2, being "An Act respecting short forms of
leases;'" iuul it contained the following covenant :
" And the said lessee, far h'uiiKilf, his liiim, ixe-
nifor.i, (iitiiiiiiiMriitorK, niiil ussUinx, lurilii/ cove-
nants with the said lessor, lii.^ lu'irs iiml (issli/iis,
to pay rent and to pay taxes, and will not assign
or sublet without leave." Then followed "Pro-
viso for re-entering by the said lessor on iiim-
performance of covenants, or seizure or forfeiture
of the term for any of the causes aforesaid."
The plaintitts, as assignees of the lessor, brought
ejectment, claiming to re-enter for breach of the
covenant luit to assign, by reason of an assign-
ment made by the administratrix of the lessee.
Hiehards, C. J., thought the weight of authority
ill fav(uir of luddiiig that the administratrix was
not bound by the covenant not to assign, not
being named in it, but that in a Court of .■Xjipeal
it might properly be held otherwise. A. Wilson,
J., inclined to think the covenant one concerning
the laud, which wiuild bind the assigns, thougli
not named in it ; but held that the proviso top
re-entry ditl not apjily to it. Lcr <■( id. v. Lijr<':/i,
37 Q. H. 2(J2.
IX. Forfkhthk.
1. Bi/ DiKrlaitmr.
A disclaimer by a tenant of his landlord's
title, at once puts an end to an existing tenancy,
and ejectment may be at once maintained with-
(Uit a notice to i(uit. />'»' d. <'liiiin v. Stiinir/, I
m
ami 8iiig\ilar that certain lea.sehold : Q. B. 0I2 ; Dot d. Xnynlw lliss.ll, 2 (l. B. 104.
U;' ^^^^"^^ ■ ) '-i
(■ 1 1
11
1i'..fc
2o;?r>
LANDJ.OlfD AND TENANT,
20:
A ttrni is licit furtVitcil by the tenant taking a cease ami lie void. Tlic lessee entt
title fidni a stran_i,'er, Imt (inly liy his ackniiw- i the 1st of Aj)i-il, 185!)
Jeilginy Ky leioiil that tile fee is in anotlier than
in his huiiUnril. /h)i d. I)itiii< !■■< w II'k.sc, .") (^>.
B. r)S!t.
In ejeetnieiit it ai)])(:u'e(l that one ( '. 15. had
leased from the ])laiiititr part of the inoperty, and j
lieiii;Lf ill ])OMsessioii, gave it \\\i for !:<(!() to defeli- ,
dant, who claimed tliat it \\as her own :— Held, 1
tliis was clearly a fraud upon the jilaintilV as
landlord, liy whicli the lease was forfeited, and ,
that the defendant coulil not set up ( '. P>.'s right
under it, A'.-//' v. .s/«»/.-.v. ;{| (). 15. 47.
See XXVI., p. L'OST.
i. ihi .yiiii-jiiiiiiiK-ii/ III' i'( III.
Ill ejectment for a forfeiture for non-paynieiit
of rent, the pluintitl' must prove, if proceeding
under 4 (ieo. II. cli. '-'.S, tiiat there was no suf- i
ticieiit distress niimi the premises, and if at'
common law, that the rent was demanded in
proi.iertinie by a person duly authorized. Dm- d.
Vdut tt (tl. \. McLiwI, M.' T. 4 Viet.
'■'•■'I, .'UmI ,
I yi^ili- s rent hci,,,,
arrear, defendant disti-iined and solil tlic i-od
of S., who remained for some time on th,. 1,1
mises as defendant's servant ; and tli • shii
afterwards, under executions whicii had l^.^.i,
his hands since November, IS'iS, solij tlic uiiu
pired term of S. in the premises, desciilimir
as a term with 1.") years yet to run, at a rent'
.SUM) a year. The plaintitf became the ]iiir, |,aj
and lironght ejectment against defendant nn't
sherill's deed :-- Held, per McLean .1., that t
plaintill's title failed, on the gid,,iid that t
lease being void by the iion-paynicnt 1,1' iv,
and S. having given up possession b, arraii'
meiit with defendant, his interest was "
Ihiljli V. Uulirrl.siiii, 1!) (,). IJ. 411.
Ill an action by a tenant again.st his laii,llii
for refusing to jiermit him to enter to take aw,
the emldeineiits, itajijieared that detcn(lant"a
notice, after the croj)s were sown, to ttiiniua
the lease according to the jiroviso contajiuil
it, anil the lease was so terminated on tlic -Jo
March. I'etween that day and the liOth M.in.
defendant brought ejectment. I*cf(nihiiit 1
his plea, set up that there was al.-;o a prdvisii
in the lease for re-entry if any part of tiiu le
shinilil remain in arrear for " fifteen days. ;i
though no formal demanil should be inailJ tlifr
••f ; that a jiart of the rent was due on the l.")i
•'Oil
AVhere the lessee cover anted to i)ay the yearlj'
rent, with acoinlition for re-entry " if the tenant
sho lid do or omit anything ill breach or non-per-
formance of any of his covenants" : Held, tiiat
tin iioii-payiiient of the rent would not make the ! March, anil liefore he could recover 111 In. eiVr
demise void ip.so facto, but jnly void upon pro- ,„^,„t; ,„, ^^.l j,„ssessioii, more than fifteen ilr
per proceedings being taken for that purpose, j i,,id elap.sed from that time, and he ciiteie.l' .'
Dor d. A III;/ .^• ( ■iilliije V. Kinm'ilji, 5 <). B. 5, , . I aeeount of the said right of re-entry for nen-pa
Covenant, on an indenture, excusing jirofert, ! ""-'"* "f '''^'jt. 'ts ^^'^-'H "s on account of tlie teiiil
by whicli defendant demised land to plaiiititf for j "iit""' "f the lease by notice ; and by ivasun ,
Hve years, and covenanted to convey to him in plamtiH s default in iiayiiieiit of rent and iltfi.|
fee if he shouhl pavi;i-2">on or before a day '''"'^ » *^>'ti'y. plaintill torfeited his ri^ht te tl
named. llreaeh, that although the plaintiff i '-"''•'™'^'"t"'' "'"' tluy became defendants,;
offered the money before tlie day named, and | l''»'V' '",'' ••i'^^^''«»"»!"'y i^'^tate in the Ian.
reipiested a conveyaiici^, yet defendant refused, i
Plea, after setting out the indenture in full,
which contained a proviso that in ease the rent
<ir any [lart tiiereof should be in arrear for
forty days, then the indenture and every tiling
therein contained should lie void — that before
and at the time of the tender in the declara-
tion mentioned the first year's rent was in
arrear for forty days, whereby the indenture
and the covenant to coiiyev became void :
Hehl, plea good. M<l.rll,tii v. A'o./er.v, ]•_' g. H.
r)7i.
Where the lease ex]iressly provides that it
shall ))e void on non-payment of rent, whether
4leinaniled or not, the('. L. I'. .\ct, sec. 2(13, does
not apply, and in ejectment for the forfeiture
there is no necessity to shew a want of distress :
— Held, however, that if it had been otherwise,
in this ease, on the evidence stated, absence of
flistress was sutlieiently shewn. McDiiinild v.
P<rk, 17 (I 15. 270.
Defendant on the I. '1th October. 18.V_>, granted
the land in ipiestion to one S., to hold "to the
said S., and tiie heirs of his bo<ly, for 21 years,
• ir the term of his natural life, from tliu 1st of
April, liSoll, fully to be coin]ilete and eimed," ! premises as if he were jireseiit. hufLiuliiiit
but not to be underlet to any person, except to | 8onie way got the key and went in, ami a
the family of the said S., for any period during | wards obtained alease from (l.'ssnii feriil .vrai
the said term. A yearly rent was reserved, i (i. on his return, in 1S(>(!, recogiii/.ed this k:wai
■which S. covenanted to pay, and it was provi- ! received rent under it regularly fniiii ihi'tiil;!!
Held, on demurrer, jilea bad : I. lieeausu tlit
eonlil be no forfeiture for iion-p.ivineiit ef leii
after the term was at an end, which it was 1
fore the forfeiture became comjilete ; 2. licaii
defendant, having terminated the lease ai
brought ejectment before there eonhi have het
any forfeiture for noii-]iayiiieiit, conid netattt
wards set up such iioii-|)ayiiient as feifeitiir
Helil, also, that the defendant, uinler the ]in'vi
I ill the plea, could have brought ejeetiiunt
I non-payment of rent, without a diiiiaiul, tin
j there might have been sutlicient distress mi
I premises. Cinii/ilicl/ v. Ihi.ilir, l."i('. I'. 4'j.
j Oiied., a rector, in KSIil, leased land to
plaiiititf for 21 years, at an annual rent, with
I l)idviso for re-entry on iioii-]iayiiient. The pi;
j titf entered and paid rent until the suiniiii
j ISfi."), when he weiitaway from the eunnty,
ing nearly a year's rent over due, and ^iviii
key to a person in the adjoining limise. liiJiil
1S()(!, the premises being then vacant, (
to Knglaiul, leaving a power of atteiiuv «
his son authorizing him to collect ami liisti
for his rents, and to eoninieiice and ]ir(iseeiitt
actions and other proceedings v hieli might
expedient to be done or jirosccnted aheiit
«led that on failure to perform the eovenants,
the lease and the term thereby granted, should
until 181)8, when the plaiiititf brmight cjictim
claiming under his lease from H. :— Hd'
tit
^^H
SMMlSfiMMi
2037
LANDLOliD AND TKN'ANT.
2n:i8
lie lessee outevuil, iiml on
,<t a ycivr's rent liuiiij; iu
I'aiiietl aii<l sulil tl\i> ^umls
f„r scmio time mi tin: \ivi-
sevvivut ; :uul tli- slierilV
.Jutions whieh liad lieeli in
'mber, ISaS, sold tlic uul-x-
tlie iivemiseM, <lescnliiii^ it
c;:U'H yet tii niii. at a vi'Ut ni
[laiititVbeeaiiie tlie vuivluisn'
ut af^aiust (lefeiuliuit "U liw
a per Mel.eau •!., tliiit tlic
.,{, <m the gvcK.iid tlwttlie
^ the uon-iiayuieiit mI reut.
^u uv possession liy an-iiii-i;-
lut, liis interest uas gmiu,
1<)Q. B-4H.
a tenant against Uis kiMllnvl
uit liini to enter to tak,' away
:u.peareatliat.\elen.lantgav,.
•nips were sown, to termniatf
,., to tlie i.roviso o.nta.iuM m
As so terminated on lli.' Jltu
that aayan.UUe:«Hh Man,,
It eieetment. Deleuaaut, liv
;hat there was also a v^'Visi..,!
■e-entrv if any part of ti.e r.ut
,, .u-rekr for tit teen .lav*, al-
1 .lemaml slionl.l he maao Ukt.-
,{ tlie rent was due on tlic latli
„.e he eouhl reeover m lus oi.rt-
Session, n,ore than t,tU.>. .hy^
„, that time, an.l lie entelf.l ..„
via ri"ht of re-entry tor nn»-iiay.
:,!{, -notice; ana hyr^snuu,
.it in iiavment of rent and .uku-
Hn^f forfeited his ri;;U to th«
^rs^^h:S1^"h;;:u.!:tL
■ i«(;i leasea land to thi
'^*''''"\i u'an '^^I'-^'-'t'^"'''
LiutheaajmnmghuaM^^^^^JJ
h"'.r^.w".n:i.-i
.ri/iny Inn. to ^•''\1 V! ,,„,,,,
'iu.atoeonnneneean <•■
therproeeea.ngs K-^,^,^,,
'"^ '^""" "\?;os r ^'^f^'"'^"'
,aaleasefr(m»«Kss ' -^,^1
Ueutheiaauit.tl 1"^'^ 1,^,^1
Ir his lefts'-' t'l.ml.. •
the facts .slieweil a snllieient re-entry hyO. to
jvdia the plaintitl's lease, uinl tiiat tlie plaintilf
therefore eouia not reeover. tiMiaae, wlietlier
the son was authorized, nnder the powei' of at-
torney, to hiiiii,' ejeetnieiit and enter for the for-
feiture. Seiiihle, that the lease to the jdaintitf'
>vas liinding on the reetor and tiiose claiming
iimler hini until forfeituil. O'lliirc v. Mr for-
,,„H; :io g. 11. ")(;:.
The jilaintitV leased premises from ilefcndant
;it a rent of ■'ii'loO a year, eovenantini,' to pay
relit, &e., and it was added "this lease will he
void if the said plaintiH' fail to perform this
jirrceinent :"- Meld, that the last clause would
(ililv make the lease voidahlt^ at the option of
the lessor, not void ; and that to entitle the les-
siii' til determine the lease for non-payment of
rent, a formal demand w.as necessary, (^hia^re,
wiietlier the word.s "this agreement" would
■niiily til the covenant to pav rent. Fiiinflicr v.
y,V/'/i//, ;<7 (,>. IS. 4<)S.
See /)V'»(7,- V. -f //-;//. 17 ('. P. •_>4(), p. -.'(WS ;
('„;„or/,- V. I)(>ll<l.<, ?y-l Q. B. (CJ"), p. 'MM.
3. \V<ur<r.
Where the action is against defendant as plain-
tirt",-! tenant for a forfeiture, the receiving of rent
alter the hah. fac. poss. has issued, is a waiver of
the execution, lili'icbr v. Cinn/iljc//, 4 h. .1. l.'{(i.
-C. L. Cliaml). - Draper.
lireaelu's of a covenant in a farm lease to keep
the fences in ro]iair, and to keep eighteen acres in
meaihiw during the term, arc continuing hreaches,
ami the right to re-enter for them is not waived
kaeeeiitance of rent. A'nih ii \, Jiii/si/cii, 1-Kj).
B.MJ.
Defemlant gave a imte for the rent iluu up to
tlie 1st Deeemlier, 185(1. He afterwards ohtain-
eilaiiiiteof the plaintilt's for tiL'S l,")s., and being
'.uialile til ])ay his taxes, ga\'e it to the iiailiil
Wlore it fell due, telling him to ask the jilaintill
toiulvaiiee the sum rcipiirud, and to credit the
Wlauee mi the then current rent. The plaintilV's
(kk advanced the money and took the note,
kit refused to credit tlie halanco on the rent
tlit'ii aeeruing, saying that ho would ajiply it on
till- iiieviiius note given hy defendant, which
remained uiqiaid : - Held, that there had l)een
nil aei-eptaiice of rent dnc after Deccmhcr, 1,S")I),
Si a> til waive the forfeiture. Mclhnntlil \. I'tclc,
: (J. H. -iTO.
I'laintitf leased to defendant for twcnty-ono
I years, with a covenant by defendant to erect,
I withhi fiinr years, a house, itc, which covenant
was linikeii, hut tlu' lessor received rent to a
I lieriuil suhseiiuent to the time of the alleged for-
1 feitiire ; -Held, a waiver of the right of entry
I k lire.ieh of the covenant. Ihn; v. Southard,
Of. 1'. 488.
Plaiatift', hy indenture, agreed to convey to
I ileiemlaiit certain land, the right to purchase
jtliidi hail Iwcii assigned hy defendant to him, on
[liaymeiit hy defendant of certain sums, and that
feinlaut sliiiuld occujiy until default. After
jiletault iihiiiititl' and defendant referred all niat-
[tets ill lUtforeuee. The award postponed the
liite (if jiaynient as to -which defendant had lieen
linilctault, and before the date so lixed defend-
l^'t teiulereil the amount : -Held, that the instru-
peiitaecuted hy plaintiff created a demise, or a
re-demise, in favour of detcndant, vhirh could
have been absolntely avoided by plaiiitilV on the
default made liy defendant ; hut that the lefer-
(■nee after default either waived it, or postponed
the time for payment, before the expiration of
which time tender had been made ; and that in
cither view [ilaintilf could not maintain eject-
ment Jigainst defeiulant. Itldrh \. Alliiii, 17 C
P. -.'40.
Semble, that it was no waiver of tlu^ breach of
a covenant not to dig beyond a prescribed depth,
that the laiullord, though aware of such breach,
and threatening to take proceedings in coiisc-
i|Uence, did not take any steps at the time, but
' allowed the tenant to rciiiaiu in iio.-.srssioii until
his subsei)uent insolvencv. Ki rr v. //(i.-jHii'/.-:,
j -T) C. 1". 4i.'!l.
I Mere knowh.-dgc or ac(]uies(.-encc in an act
, constituting a forfeiture, does not amount to a
waiver, there must be some expi-nditnre of money
in improvements or some positive act of waiver,
such as receipt of rent. McLdn n v. I\i ,r, ',Vd
' Q. B. .->07.
Two Ic'ises Were executed between tlic same
parties, and to the same etlcct, except that the
first lease was for twenty acres and the second
'for ten acres, parcel <if the twenty. It was a
condition of the leases that the lessee should com-
mence digging lor oil on or before the 1st of .June,
• I,S(il, which he failed to do. (»n the Kith of Sep-
; tember, 1S().S, the lessor accepted from the lessee
' !?.")(), to be kept out of his share of the first oil ob-
' taiiicd, and a memorandum to this ell'ect was en-
din-sed on the twenty-acre lease liy the lessor,
which instrument the lessor thereby declared that
he considered valid. On the 'M)t\\ of November,
1S()-1, another memorandum was endorsed on the
i same lease, and signed liy the lessor, agreeing to
I extend the time of commencing work on the
'within lease until . I uiie, liS(!.">. 'I'lie lessor was,
until after this time, benclieial owner of the ])ro-
perty, and he subseiiuently sold the lot of which
, the ten acres were part ; the purchaser having
notice of the leases, i 'n his subseiiueiitly obtaiu-
; ing a patent for the lot, the Court of I'hancery
■ decreed that there was waiver of the condition
to commence work by a particnlar time ; and
that the ten-acre lease was binding on the
; patentee, and restrained him from bringing
' ejectment ; and the decree was aHirmcd on ap-
jieal. Floiri r v. Duiiccui, l',i Cliy. l'4'_'.
I See Ronf'y. (Janle,,, 2.3 C.P. 5!t, p. ^O^l ; il/oH-
»;»;/ V. Drirr, ;W t^. H. •2!»4, p. •2047.
4. Other ( 'iisci.
Upon a lease purporting to be made hy "I!.
\V." as attorney for "A. H.,'' reserving a right
of re-entry "by the said It. AV. into the de-
mised premises," not saying as such attorney: —
Held, that no right of entry was reserved, for
there can he no reservation of a right of re-entry
to a stranger to the legal estate. 1 1 ynil imiii v.
ir;//»(m.s, 8('. P. 'J9:i.
Plaintiff and defemlant being joint owners of
land, the plaintiff assigned his interest to defen-
dant, and defendant leased to the plaintiff' for
life at a nominal rent. On the same day, by
articles of agreement between them under seal,
which were to continne during the plaintiff's
life, the plaintiff' agreed to let defendant work
. .1 , { i;i"»iTf'f!f !'
2039
LANDLORD AND TENANT.
i'UO
the premises on condition that he shouhl do so
in IV fariJierlikti niainiur, and deliver to him one-
third of the proceeds, &c., wliich defendant
covenanted to do, and each bonnd himself to
the other in .t'1,000 for the true performance of
the agreement. Defendant went into possession,
and the phiintiff had received some share of the
crops according to the contract. On ejectment
brought by the jdaintiff : - Held, that he had a
right to recover on hreaeh of any of tlie condi-
tions, notwithstanding there was a covenant also
to perform them, and a penalty attached to the
breach ; ami that no notice to (piit or demand
of possession were necessary. Hlwtdon v. Shcl-
iloii, 22 Q. B. r>21.
Action by lessee against lessor for eviction.
riea, that the plaintiffs by the lease covenanted
that they would, during the term, pay all taxes,
and that the nonfultilment of their covenants, or
any of tliem, should operate as a forfeiture of
the said deed, and that the same should be con-
sidered null and void : that during the term
certain taxes were unpaid on the land, amount-
ing to i}S.C)'> for nuniieipal, and iJ'J.o.'i for school
purposes for 1803, which the plaintiffs did not
pay, although the same were duly demanded,
and they had no distress on the land, and such
taxes in March, 18()4, were returned by the collec-
tors as due on non-resident lands, whereby the
said deed and the term became forfeited and
void, and the defendant afterwards peacealdy
entered and became possessed as in liis first
estate : — Held, that the plea was sulKcient ; that
the taxes became due when demanded, and the
plaintiffs had not the whole term to pay them in :
and that defendant could enter without bringing
ejectment. Tai/lor ef ul. v. Jirnujn, 25 Q. B. 8(J.
In ejectment against one M., the defendants
appeared and defended, by order, as landlords
in lieu of M. The plaintiff claimed under a
covenant in a lease from him to M., on the right
of re-entry for non-iiayment of rent and non-
perfonnance of covenants. It appeared that the
instrument set up by plaintiff as a lease was an
agreement, dated 2nd April, 18()7, whereby
plaintiff agreed to sell the land to M., for £100,
M. paying £10 each year and interest at six per
cent till the whole was paid : pr' ivided that if
the payments were not made within one month
from the time appointed, the interest due was to
be considered as rent, for which the plaintiff'
might enter and distrain; M. not to commit
wiiste, itc, and to pay taxes ; and in case of de-
fault in making the payments for three months,
then he slu)uld surrender the premises to plain-
tiff ; and i.i. agreed not to let or assign without
leave. It also ajipeared that the plaintiff held
under a lease, dated 2,Srd March, ISlio, from de-
fendants for 10 years, being one of the company's
printed leases, which gave riglit of re-entry for
non-payment of rent and taxes, and for assign-
ing without leave ; that four years' rent was in
arrear, and that there was no written authority
to the plaintiff to sell to M. The lease also con-
tained, besiilea the general proviso for re-entry,
a special power to determine the lease on a given
notice. In February, 1872, defendants executed
a lease to M. for seven years, but no evidence
was given to shew when it was actually delivered :
■ — Held, that if it had been shewn that defen-
dants were pi-oceeding to re-enter for the plain-
tiff's default, and that M. took the lease from
defendants to save himself from eviction, this
would be a bar to the plaintiff's rigid, aiiil thuro
wouhl be no necessity for their puttiug liiu, t,\\\,
of possession, and his re-entering imdir tlif mw
demise ; but as this evidence was wantiii" 'i
verilict found in defendants' favour was sit iisiile
and a new trial granted :- Held, also, that the
general proviso in defendants' lease for n-ontiv
was not controlleil or affected by the siiLLi)j
power given to determine the Ica.sc on a "ivtn
notice :— Held, also, that under the .igrecuaiit lie-
tween plaintiff and M., the plaintiff had t\w rjcht
to re-enter and take possession on dctault : and
the covenant to surrender possession after tlirte
months default conlil not alter plaiiitilf's tvi\i%
Ihhi V. 7'/(- CtiKula Co., 23 I'. 1'. 2(1. °
To supjily the evidence by the jud^jnicnt of tlio
Court in the last case held to he WMitiiij.' at tlie
previous trial, the defendants proved an aihiiis-
sion by M. that he held the land for thi; liitVu.
dants, after he had lirst informed them tliat lie
held under the plaintiff, ai il tliat lie and the
plaintiff had made improvements therinii:
Held, that the defendants, with full knowltilce
of these facts, granting a lease to .\i. witli°a
covenant against incundtrances, shewed tliat tliey
were proceeding to enforce the forfeiture against
plaintiff, and that M. attorned to them to avuid
eviction ; also that the defendants ciiniiMi.' in
in this suit against M., and defending as M.'s
landlords, contending the lease was at an end
shewed that their desire was to forfeit it. It
was objected that as defendants were defeniliiig
in lieu of M., they couhl only set up the same
defence as M. could ; but hehl, that as thedeiVn-
tlants had really become M.'s landlords, and he
their tenant, by accepting a lease utterly iiKdn-
sistent with the denn.se to idaintitf, they nmld
defend in their own right, and urge this lease
and M. 's attornment to them, as their entry for
conditions broken in plaintiff's lease. .V. C'., '2'i
C. P. 5<J7.
It was provided by a lease tfiat in ease the
term should at any time be seized ur taken in
execution or in attachment liy any ereditur nf
the lessee, or if the lessee, beeoniiiig liaiik-
rupt or insolvent, should take the lienetit nt any
act tliat might be in force for bankrupt or inscil-
vent debtcn-s, the term should immediately lie-
come forfeited and void. Proceedings having
been taken in compulsory liquidation under tliu
lns<dvent Act of 186i>, and an attaeliment [dated
in the plaintiff's hands : -Held, that the lease
was forfeited, and that the clause was )i(it limi-
te<l to an attachment issued under the Alisom-
ding Debtor's Act. Kerr v. II(txti)i<j% 25 0. V. i'li).
Where a covenant accompanied by a rij.dit nf
re-entry on breach, is so ex[iressed that its mean-
ing is (loubtful, and the tenant in good faith has
d; .. what he supposed to be a jierfcirnianee nf
it, a forfeiture will not be enforced ; the dilHeidty
in construing the covenant, is a sjieeial eiicuni-
stanee entitling the defendant to relief. J/i'
Lai-iit v. Kerr, 31) Q. B. 507.
i^ea .Miid-l<:tfi»i V. .Smith, 17 C 1'. 401, p. I'll!)'!
Mclntitsh it (d. v. ,S(uno, 24 (.'. P. 025, p. 2077.
X. Surrender.
1. Jiy Ojicratioii ol' Lav,
A tenant in fee may surrender his estate hack j
to the crown by operation of law, !w hy accqit-
1 ; \".
i[f
2010
2011
LANDLORD AND TENANT.
2042
utitl's viglit, ana t'litru
their imttni;; Iniii (nit
iutering ""'Kv tl'f mw
ilence was viintiiij.', a
its' favdur WHS set aside
• - Held, also, that the
iivnta' lease fdV re-oiitry,
ivtfected hy the spuoiij
iuc tlie lease im a given
vinilertlieagreiiiuut he-
he vlaiiititt'liad the light
session o" delault : and
er ixissessioii after three
)t alter vl'""'''''^ "«''*•
., -JSC. I'- -»•
e by the jiul);nunt of the
helil to lie wi.uthigatthe
iidaiits proved an adnus-
l the lainl for the lUUU-
;t informed them that he
iff avd that he an.l the
mvn.vemei.ts thereon:-
mt% with lull kniAvkdgc
ng a lease to M uuh a
ubraiiees, shewed that thoy
iorce the forfeiture against
attorned to them to avoid
the defendants eommg in
M and defending as M. s
, the lease was at an end,
esire x^•as to f.u-teit it It
defendants were defending
,o«ld only set up the same
■ but held, that as the deun-
ome M.'s landlords, and he
ei)tin« a lease utterly iiKuii-
£e'toidau.titl-,theyoa,U
u right, an.l urge this k...e
JuVm,astheire,.trytor
Lu iilaintitt's l^;-'*'-'' ■">•'-'-*
bv a lease tfiat in ease the
L^ime he seized or takinn
taehiaent hv any ered, to "t
Vi„. U.ssee leeonnug hunk-
fell akJthebenelitof:u.y
u oree{..rbanknn.tor>.-.■
I void. Vroeeed.ngs ha .
imlsory Ihinidatiou nude tht
tT2lanattaeh.nen vW
':;.b:--Hcld, that the W^
!,,.,t the elause was not Inni-
f isllied under tju^--
lr::Jx^ressedthatitsn.a-
;()venant, is .\y ^,
,e defen.lant to rehet. M
Iq. B. 307.
Smith, It * • \\T ' L-7
l.eratiouol la>^. '>« •'
ing a new grant for the same land, or ho may I
surrender by matter of reeord ; l)nt a surrender !
not of reeoril, or a 8urren<ler by reconl founded 1
on an invalid titJe, is insutHeient. l)i>i' d. Me- |
])iwill <■/ (il. V. McDoHiiidl >'t III., '.i (>. S. 177.
\Vliere, in trespass i|U. el. fr. et de bonis iis- j
portatis, tlio defendant jnstilied tlie seizure of i
iKHids on a distress for rent under a demise to 1
(ine A., and the iilaintitl' replied that before the '.
rent distrained for beeanie due, A. died, and tlie '
defendant and A. 's exeentor joined in the demise ;
of tlie same premises to the idaiiititl', under wliieh
the idaintitf entered and oeeupied the repliea-
ticiu was held good, as the demise to A. was sur-
rendered and determined by the new demise to
the phiintilF. Stnillni/ v. ('roi,].:<, (I (). S. ,">S7. !
Where in tresjiass for taking goods, defendant
having justilieil under a distress for rent, the
Iilaintitl replied a new lease by wiiieh the demise
bvdefeiidaut was surrenilered and determined by
niieration of law, and defemlant rejoined speeially
traversing the surrender, it was lielil that the
special traverse was bud, as it was matter of law.
Sitmthij V. Ci-txik", I (I 15. 44.
A eonveyanee in fee from a lessor to liis lessee
(li'ring tiie term, though made to <lefraud eredi-
tors, is as lietweeii tlie lessor and lessee a sur- j
render of the term, and entitles the pureh.aser
at sheritl's sale of tlie lessor's estate in tlie land
til ininiediate possession. /.>o(' d. Mrl'hi ismi v. !
//„„/,,•, 4 (,t. B.44<).
The mere allegation in a jileii "of a surrender
of a term of years to the defendant by theplaiu-
tilf. oliliges the defendant to prove an aetual
smiender. A surrender by operation of law,
must he so pleaded. MrXi'il v, 'I'niiii, ;") (,). L>. 91 .
In coveiitnt by landlord against tenant, it is
aliad pl'..'a to plead a surrender by a third party ,
(whose legal estate is not shewn to have lieeii :
iltvived from the plaintitl) to the (Jueen, and !
tkt therefore tlie lainl at the exjiiratiou of the
Ifiist' did not belong to the plaintitl'. /iKAifll ,1
v.r. V. (Ii-iiliiuii, () y. 1). 4!t7.
The giving up and eaneelling the lease by the i
tenant, though not of itself a surren<ler <if the i
tsim, is yet a strong eireumstanee to be eou-
siik'red : — Held, that the subsequent eonduet of
tlic tenant in this ease (as mentioned in the
jiiili'inent of the eourt, ) must be taken to l)e, on i
tilt liriiieiple of estoppel, an implied surrender
«t lii.s lease. Ihx' d. Burr v. /Jciii-sdii, S Q. H.
18.1.
Where a tenant, with the knowledge and eon-
sent of his landlord, takes a leiuse from another
(lerson, to whom the landlord has transferred
the reversion, tiiis amounts to a surrender in
law, and the right to distrain is gone. A'-"'/.s v.
Brwh, 8 q. B. S70.
The 12 Viet. e. 71, does not alter the law so
kas regards a surrender in law. //<.
Plaintiff held from defendant a lease of a farm
nnexpired. I'laintitt' and defendant, with 1).
amlM., heeame bound to eaeh other by lioiul in
£200, with a condition reciting that " the parties
agreed to separate and cancel all arrangements
herotiifore made, and leave all controversies be-
tween them to tile arbitration of T. and P. ; and
ilioiiMthcy not agree, to choose an umpire, whose
dccisiim should be final. " The four signed the
boinl, but it had only two seals, wliieh all four
touelied. The two arbitrators not agreeing
appointed an umpire, who awarded that ilefeii-
dant should release and give U]( to tlie jdaintitl'
" tiie term of yeai-s, as agreed to in the sulimis-
sion, and also deliver up the stock of farming
utensils iu proper order, and without further
delay, and that tlie lease then held liy both parties
of said farm be immediately cancelled " : Held,
that the b(unl was not in itself a surreiuler of
the term : that even if so inteiuled l)y the parties,
tlie term would not be snrreuded, for the t)oiid
eouM not be held to be such a deed as is reipiired
by 14 iSi b") Viet. e. 7, s. 4 : that the award would
not amount to a deed of surrender liy the defen-
dant ; and therefore that the ]daiiitilt' could not
eject the ilefeiiilant. O' Dninihirlii v. Friln-il/,
II q. B. (.'5.
An agreement in writing, whereby A. agreed
to rent to li. for three years from date for t'5()
per aniuim, with taxes, payatile (pi irterly dur-
ing occupation ; B. to cxpeinl £•_'.') in impiove-
nieiits, is a lease, and not a mere agreement for
a lease : —Held, also, that such lease was not
surendered by operation of law, by A. afterwarils
agreeing in writing to sell the premises to B.
upon certain eonclitions to be afterwards com-
pleted ; none of which v.ere performed by B. at
tile time appointed liy the agreement, nor was he
ready to do so. (Irant v. Li/nr/i, (! t'. 1'. 178.
l/efendant leased to F"., from whom he took a
note iu payment of arrears of rent. K. let the
plaintitl' into possession of the premises, and the
plaintitl' made certain payments to defendant oil
account of rent, for which defemlant gave re-
ceipts as for premises leased to !''. (Mi pleas of
rieii en arriere from !•". ami noii tenuit : - Held,
that there had been no surrt'iider of tiie term of
F. by opei'atioiiof law. MiL(<>il v. Darrli el <(/.,
7 ('. I'. .T).
A rented a house to B. by lease dateil Se](tcm-
ber 1st, 18,")4. B. took possession, and on the
I7th <if May f.dlowing, agreed with A. for pur-
chase ; " the one-fourth of the purchase money
to be paid by ap])i'ove<l endmsed notes at three
niimths from date, the remainder to be paid in '
four etpial annual instalments, w ith interest on
the amount unpaid at each time of payment ;
agreement to be drawn and possession given on
the 1st day of .tune next, from which time pay-
I ment of instalments commences." An agree-
j ment was prepared before the 1st of June, but
was not executed, owing to a misunderstanding
\ about the note, B. not being prepared with such
a note as A. would accept : Held, that there
' had been no surrender by operation of law, and
' that A. might distrain for his rent, t.lrntit v.
J.ijikIi, 14 Q. B. 148.
' Plaintiff' hehl certain premises, including those
iu dispute, under a lease for five years. After
\ the execution of the lease, the landlord and the
I plaintitl' agreed verbally that tiie latter should
1 give up four or five acres of the land leased to
' him, and take other land in lieu thereof, which
I was pointed out, and of which the plaintitl en-
; tered into iiossession of four acres ; tlife laiulhnvl
I s(d(l t<i defendant the premises, -to recover pos-
session of which tliis action was brought, and
I defendant entered into possession thereof, and
\ erected buildings thereon, and the plaintitl' for
I and at the recjuest of the defendant ploughed
I the land iu question, and by other acts evinced
Hi
iff 7 r'
!:-•;'(
1
^HB^" '..''■''
,
1 }
; . i !
i^in ii
^2()r^
LANDLOl'J) AND TENANT.
:'"U
lii« loiisciit t(i, ami a<?f|tiie8ceiice in, tlio sale to ;
tlitMlcfuiiilaiit, ami tliu ]i(isuss.ii(iu takvii l)y liiiii ;
— Hitlil, ill (■j»:ftliiulit for tliii jiioliiist'Hi'iiilil by the
lamllcinl to tin' ilufcmlaiit, that tlic facts roiisti-
tiituil a siirromiei' 1)V opt ratimi of law. Ilfrlun
V. Miirnmiiicli!/, !» 0. I'. 18(1.
Defendant avowed for rc^nt under a deniise to
<;., to wliicli the ]ilaiiitill' jileaded mm teniiit.
It aji)ieaiiil tiiatilnrinj,' the tvnu (i. had left the
eoimtry and assij,'neil to on(^ M., who solil to ('.,
and that (1. had afterwards retnrned, and
entered nnder ('. , and wa.s living; there when the
distress w.'.s niaili; : Helil, elearly not to amount
to a suireniler of tlie term, or ilejirive defendant
of his ri,L,dit to distrain. Klsirnrlh v. Ih-irc, 1,S
(,>. H. yi.
(•no L. liy an instrument hdI mii/i r "in/, dated
.'{1st Oetolier, 1S.")7, leased to S. 0., one of the
defendants, for live yeais, On .'Ust Mareh, KSoH,
he mortgaged the jiremises to the ))laintill's, re-
deenialile as tiierein set forth, and on the Sth of
.lune, I8.").S, by indenture, he a^iain leaseil the
same j)reniises tor live years to S. ( ). l'|ion ejeet-
nient brought by the mortgagees : -Held, that
although the indenture of .hine, 18.")S, as lietween
the jiarties to it, extinguished tlie tenancy from
year to year created by the instrument of .'ilst
October, 18.", yet it did not entitle tiie jilaiutill
as mortgagees to succeed, they not being ])arties
to it. Ciirrrlill! I'l ill. V. Oi'i-U el ill., \'1V. \\
•,W2. I
A. ifc 15. were jiartucrs, occupying pi'emises as
c'o-tenauts nnder a yearly tenancy on the tc.nis
of an expired lease. Before the nomination day
for a municipal election they dissolved p.'irtuer-
shij), 15. leaving the business and premises of
which A. remained in possession. .A. shortly
afterwards went into ]iartncrship with S., and
the !iew lirm tlien took a fresli le.ise of the pre-
mises from the same landlord : - Held, tliat 15.
was not at the time of the election the co-tenant
of A., the tenancy having been surrendered by
operation of law. Iirijinii i-.r nl. Ai/uui.toii v.
no.i/i/, 4 r. n. -204. -a. 1.. chamb. .1. wii-
.son.
To an avowry for rent the ])laintill jileaded
that before the distress he surrendereil his intei'-
est in the term to defendant, and the said ten-
.incy was put .an end to, and ceased, by the
defendant entering on the said premises, by act
and operation of law. A lease for live years was
prove<l at S|."i() a year, under whicli the plaintiff'
entered, and it appeared that before the end of
tlie second year, ami before tlie distress, defen-
dant, having olFered the plaiiititl' ^s.^O to allow
him to take possession, went to live in the
house. JJefendaiit afterwards told a witness ;
that he had let the i)luce again to the plaintirt' I
on shares, he, defendant, living on it as owner.
He afterwards got the lease from this same wit-
ness, with whom it had been deposited by both
parties, saying that it was of no use. The plain- ■
tiff also lived in the house, but the agreement
was that defendant, and not he, should have the I
right of possession. 'J'liese arrangeuieuts were
verbal ; — Held, tliat the facts proved clearly
shewed a surrender by operation of law, and the i
plea, though inartitieially framed, was in sub-
stance an averment that the term was thus sur-
rendered before the distress ; and that the plain-
tiff was entitled to recover. <'i>Jfin v. Dhihu-iI,
'24Q.D. 2()7.
I'laiiitilf leasc^l from defendant for a trim ,if
years, but having got into dillieultiis said to
defendant. " i can ilo notiiing here, and I urn
going to give the ]ilac(! up, as suoii ;is I yet nil of
the few tilings I have ; I am going to leiivc as
soon as a relation of mine conies." n(. ti,,,,,
asked, "To whom sliall I give tlie key'.'" ho.
feiiilaut rejilied, "To I'artons. " I'laiiitill' then
assented, and liotli then inoi'eed to fiistcu tint
windows. Defendant expressed his ilcfii',. tjiat
]ilaiiitiir should I'einain and otlerecl to as.-ist him
iiut plaintirt' left and diil not afterwards return!
Defendant, after plaintitV left, phiced P. ji'i
charge ; but ]ilaiiitiir had (ireviously ^'iviii p.
the ki'V, and had instriietcd liim licit to ileliver
it to defendant without an order fnun liim, (ij,.
fendant did, however. sllbsei|U('iitly get tlic key
and jilaeed a man in possession uf the nliiee ;
IK'ld, that what took place cuustitutcd ueitlicr
a surrender in law, n<ir an exeeiited cmitrart hy
which the relation of landlord and tenant was
])nt an end to. Held, also, that iieitlier the
giving i!]i of the key mu' the abandoiiiii" pussus-
sion would of itself have been asurreinU-r in luw;
but, .seiiible, that the taking )iiis.Jcssioii livdi;fcii-
dant and eultiv.atiug the farm as his own alisuhiti!
))roperty wonlil have aiiioiinted to a <-(i'iMilcte
surrender in law, or would hive been evidiinedf
it, just as would the sale of the iireniises ,iv ilu-
f('ndant, or his grant of a lease thereof to a tiiinl
person, ('nrpi'iilrr y. Hull, 1(1 C. P. ;)(l.
One C. B. had leased from the plaintitT part
of the iirojierty, and being in ])oss'jssiiiii ^.-avu
it up for .^liO to defendant, who elailiieil tli.it
it was her own. Seinlile, the phuutiti' liavinj,'
let part of the premises held b",- ( '. 15. to 15,
15., who went into possessi<iu, and im rent ln-iiii;
appoi'tioned for the remainder, that tiiis npenitcd
as a surrender of ('. 15. 's lease. A' //A v. \/'..7,.s
:51 (,». B. 47.
lOjcctineiit by H. ('. and I). ('. his wife. Tiic
defendant S. limited his defence to two »lici|i.s
erected on tlie land sued for, and dcfemlaiit (I.
to one of said shops as tenant of S. It apjicared
that while H. ('. was in jirison for felcmv, ami
on the :ii)th October, l8(i!t, .S. le;i.-<eil tli'u jirc-
niises to V,. ('. for two years fi-nm the lst<il'
.June, 1870, at .*■_'()() a year, and .'^. cnveiiaiiteil to
erect on the jireniiscs by the 1st of .Ir.ue, ii
tavern worth at least .SIOOO. Afterwaiils S.
jiropiised to erect, and did erect without oppn.'.i-
tion from K. ('. , a more exjieiisivc hdtel. with
two slir])s under it, (which were the shoiis re-
ferred to) and made other iiii]iort:nit alterafinii.s
at a total expense of .':<;}0(M). Defenilant (i. a];-
idied to K. ('. for a lease of one of the shop';, ami
was referred to S. , and S., after seeing K. (.'. ,
who said she did not want the shop.s, leased eiie
to(!. E. ( '. afterwards refused to give up [ms-
Hessi<in until paid for delay in getting juissessiuii
of the t;iverii until after tiie Istof.huie. 'I'lit;
amnuut was left to arbitration, and I]. ('. siiil
she would allow (1. to take posse- -imi, Imt after
he had placed some of his goods in the pnniias
she put them out and locked the dmirs, wiiieli
the defendants then forced open and tenk }iii-^si's-
sion. H. ('. was during these traiisaetimis still
undergoing his sentence : — Held, that cliuiiiglitr
husband's ini]>risoiiment for felony K. ('. cduM
contract, at all events as to w hat might he re-
garded as goods and chattels, as a feme snle.
.Seinble, that a married woman may exeoiite a
deed without her husband joining during tlw
efentlant fur a t. nii of
ito (\ii1ii-'\iUirs Mii^l til
iitliiii.i; lu'iv, ami I am
I, as siHiii iiJ' 1 H''t '■"' "f
i iun g"iii;; t" •'■■'\'' !>^
liiif cinuis." H<' tlmn
1 jrivc till! kfV';" I'f
u-toiis." I'laintitV tlii'li
iirm'fC'il to lasU'U tlui
Kiircssfil hiH lU'fifc tliat
ml (itlV'Vfil to assist him,
[ not iit'tiTwanls rfWrii.
titV It-'l't, I'laiTil r. iu
liiil vi'i-^vi<iusly .Llivcii I'.
lU'ti'il lii'i' ""*^ ^" 'l*^l'^'t''"
all oriU'V t'"'"'" '''"'• ''^"
siilisf4iii;iitly .ui't tilt' key
iiiissc'ssinii nt tlif I'laci' :
. uliwu cniistitutcd m itliiT
'. ail cxfi'iiti'il contract liy
laiuUonl ;ui>l t.iiaiit was
1 also, tliat iH'ilUcr tin;
„',)• the ali.iiiili'i'i",^ V";"''^^*'-
.uliw'iiasurvoiicU-viiilaw; i
aUiu;^ piissossiou liy ili'i'fii-
la. taniiiisliisowiialisoluti!
aiuoiiiit..'a to a >il'l'-'ti:
,mlilln.vi5l'<-'^'i"'^"'"""V''
sakot the vri^niis.'s ..y .lu-
,f ivkasotlion-oftoatliivil
; //„//, m;c. im'"-
se.l fr<iiu the iih'intitV part
I hohiu in I'o^'"-:^""' -'f •;
li.naant, who .■lanufa that
,,.,ul.lc, t\w l-huutitl liaviii-
uises hcl.l hV ^'. B. to 1.,
osso^sioii, ni..liii-voiitl...Mn-4
niiiaiiiafv, tliattliisovH-atnl
H/s loatii'. /*.'/''' ^'^ ■^'"'■'•■-■'
<• aii.l I'.. *'• hisNviU'. 'lla!
I Lis aofe.u-e to tNvo sl."l;s
1 for, ana actfiiaaut*..
as tenant of S \tm"^'^^f
,s ill v"«'>» f'"' f'^"V-''
V Ks.i«), S. leasea tlio lire-
iwo years from t''^' ^"
a year, aiul S. eovcnantea t
,ii.shv the l«t ot .lum-. .V
,.ist >Ml«Ht. Attcvwaras >.
„laiaereet^vitl.o..t.W^;;
hnore expensive hotel, NMt«
(whieh Vere the slio^s ic-
Si:",.inipnrta„talU.rati...
If s:«WK). Deleiiaaiit L. .q^
'Ueofoueolth^^''"0';!'^
,anaS.,aftevscei.iy l•.•^•.
t Nvant the shops, leasea mt
tvas vefusea to ^ive up v;-
laelay in jotting V"--:^^
after the 1st ot.lmi- '-
avhitration, ana 1-. l- ■
It . take posse.- sioii. hut attti
' 1 is .rooas ill the pn-'mi^'^^
.1 oJkeatheaoois,w!ii.l.
icea open ana took rss^j
^045
LANDLOItD AND TENANT.
20 (()
iiniirisomnciit of the liusliainl as a felon. Hehl,
also, that the fa,;tsal)ove set niit, ami more fully
a|i|n'arin<,' in the report, eoiistitiitLMl a .siirremiei',
liv o|ii'ration of law, hy !■;.('., or at all events
liitiippea all [larties from Haying that S. Inul not
the right to tease to ( J. < 'I'm-h-i r it it.r. v. Son'ihii,
All engine ami lioilfr juit into a i .irpeiiter's
sliiip aihl nianuf.vetoiy of agrienltural iniple
iiR'iits : Held, to 1)0 tivule tixtnri'S as lietweeii
i;iii(llora ami tenant, ami reiiio\;ilile hy the ten-
ant. Mela, iilso, that neither the increase nor
ft'dnctioii of the rent in this ease, nnaer the eir-
innistanee.s stated, in the report, operated as a
••urieuaer of the term ami an aeeeptane.' of the
iiiw teiianey, .so ,is to jireveiit the tenants from
claiiuili;.; the li.xtiires. /'nuKjiiii/ v. <i'iii-iii i/ ifn/.,
•Ml.
."^i-e JIdiiiiji V. 7'ii(//ii
(,'. I', r,:;, p. •_'o.">ii.
-Tied woman may e
■husbana joining
iluriui
the
2. (Hll<l-('(l.v:<.
'I'he surrender of a tinni must, under the St.at-
utfiif h'ramls, he in writing, signecl hy the party
Miri'ciiaering, or hy operation of law. hni cl.
l],<i-c\. JJiiiiioii, S(). 15. 18,').
(^ua'i'e, wlu'tlier a surrender, hesides neeessa-
rilviliseliarging all umlne rents, miy not, also, he
ifciilud eiinitahly hy way of aeeord ami satis-
l;iitiiiii of rents overdue. Urd'l/ichi v. Iloiik'uix,
ill ('. 1". -JUS.
Tliu owner of land with a saw mill thereon
I'.MSi'il tile mill, with a right to eiit timher dlir-
iiu'his le.isu. The lessee assigned the lease, and
the assignee afterw.ard.s surrendered it to the
liiM|irietor of the freehold : Held, that the right
tmiit timher was only eomniensiirate with the
kiise itself, and the lease having been surreii-
ikri'il, tlie right of cutting timher was at an eiul,
txa[it for the nse of the mill. iS/ciiiinii v. Fnisir
lifhy. iilJS.
Slu U'll'tiii v. Wilsuii, 10 ('. r. ■47C), p. :>0S4.
XI. Tenanciks fhd.m \v.\h m Vi-.ah.
.\ lease for life for i\ nominal rent, not under
■si;il, although it eouhl not pass a freehold inter-
e«t. would oiierate as a lease from vear to year.
/*... a, Liir^oii v. Cijii>t.->, 5 (). S. 4!»il.
.\ letting at an .amnual rent constitutes a yeai-ly
tciwiicy, which eontiunes at the same rent for
tilt secoml year as the first if the tenant remain
iiipiissessiou of the premises ; and the landlord
may ilistrain for the first year's rent at the end
It tlw 9fi '1)11(1 year ; and the Keal Projierty Act,
4 Will. IV. c. 1, 8. "20, does not determine the
teiuiioy at the end of the first year, so as to
mke it necessary to distrain within six months
uittiwiuils. M<'Ch'iiii<ili(iii v. Jiiirb'i; 1 (). li. "if!.
I'laintilf claimed under a deed from .1., the
Jiateiitoe, dated 12th 'April, 185;^, and proved
tkt oil the 4th of April, 1854, he served defen -
ilant with a notice to give up possession on the
•Wi of Septciiiher then next, in failure whereof
"I shall leipiire you to pay nic rent of £\ per
miiutli for the same, for every mouth wherein
.villi may contimie in possession of the same, until
Ireciiver possession of the same, hy legal proceed-
ings or otherwise." Defendant at the time of
the cleeil to the plaintill", and for some time pre-
\ ions, had been living on the lot, under a verbal
agreement with .1., that he should have it for
several years, iiiid had made iiiiproveinents :
Held, that the plaintill must recover : that tins
notice was not an aeknow leagnieiit of yearly
tenancy, so as to entitle aefemlaiit to six nioiitliH'
notice ; ami that the agreement w ith .1.. eoiihl
have no elleet. r/, /,„/</ v. /w ////, [•.H). 15. -WJ.
l>efeiiaant (dailiu'il title as ten.aiit of the liarty
through whom plaintill' ekiinieil, by virtiii' of
letters umler tiie terms of which he (the ilefen-
dant) was eiititiea to jiossession for ten yearH
upon certain eonditions, which he had performed:
Held, that he thereby oht lined ,i yearly ten-
ancy, ha;,'- v. .Vi/.<o//," KM'. 1'. I.'.s'.
One I,. Iiy .in instrument iin' I'mltr .sm/, dated
.'{1st October, IS.".7, leased to ,S. (>., ,pne of the
ilefemlaiu. for live years : Hehl, that S. ( ►. be-
came teiiaiiu from year to year for livi' years,
determinable during the term, by half a year'rt
notice. ('(iirrhUI il nl. \. < )rri.'^ <■! at., 1l'<'. I'.
a! 12.
riaintill ami defemluit being joint owni'rs of
land, the plaintill' assii^nel his interest to defen-
ilant, anil ilefendant leased to the jilaintilt' for
life at a nominal rent. On the same day, hy
articles of agreement between them umhr seal,
which were to eontinui! during the plaintill "s life,
the jilaintitV agiecd to let defemlaiit work tho
premises on condition that he should do so in a
farmer-like manner, and deliver to him one-third
of the iiroeccds, iVe., which ilefcnaaiit coycn.anteil
to do, and each hound himself to the other iu
t'KHH) for the true pevformanee of the I'.g'.'eenient
l>cfeiidaiit went into possession, and the iilaiii-
till' had received some share of the crops accord-
ing to the contract. On ejectment brought by
tile plaintill' : Held, that defeml.uit by his entry
became a tenant from ye.ir to ycir, on the terms
of the agreement. .■<lh l,l.,ii y.'.V/,< /«/r,/,, 22 <,>. 15.
^()2I.
Defendant asserted that he was a yearly ten-
ant, while the ]ilaintitl' alleged that he was ten-
ant only from one year's end to the other : —
Held, that on the facts stated in the ease, tho
receipts for rent set out atl'orded no inference as
to the nature of the tenancy. llniKilitun v.
'/'Iiiiiiiji.'^iiii, 2") (). 15. ii'u.
Held, that the receipt of rent by the wife, with
the husband's assent, from a tenant of her es-
tate after the exjiiration of a term, creates :i
tenaney from ye.ir to vear. Juliiiinii v. McLil-
/>n>, 2l"C. P. 304.
Where D., being tenant for life of two lots,
gave M. verbal permission to occupy one lot and
: tmild upon it. on condition that he should jiay
the taxes on both lots ; and M. accordingly went
on and built, and paid the taxes for several
years : -Held, that a yearly tenancy had been
created, and tint |). could not eject M.'s sub-
tenant without notice to ipiit. J)iirUy. .VcKin-
iioi,, -.U (}. 15. :)()4.
In ejectment the plaintill' and defendant both
I claimed by their notices under one V. ft ap-
; peared at the trial that 1'. sold to the plaintiff
in 18()8, and that defendant had been living oil
the premises since I8(i4, having paid to P. 'a
agent about two years' rent in money and re-
; pairs. Defendant was not asked at tlie trial ta
i"
I- >
204;
I.AxVDLOlU) AND TENANT.
2041
aihnit thu iiluintiflr'x title : Hultl, tliut it yuurly
toli'Miiy iMiiNt clriirly lu; aNHiiinuil, aixl that, lu*
III! notice to i|iiit wiiH nIiuwii, thu plaiiititl' I'oiild
not refo\-ur. HUrlinll v. Hiiil, XtK). 15. 1!».
('., on Ist Miiy, I8(l(i, IcusimI to ili'fciiiliint for
ten yt'ai'H at a yearly rent, iiayal)li! (jiiarterly <iii
l«t .laiiiiaryi A|iril, .Inly, anil Oetolier, «itli a
jiroviMo, tliat if tlic lessor slioiiM sell iliiriiii,' tlie
tiMiii, the lessee woiiM ^ive ii]i iiossession on six
months' notice. On the llth S'oveinlier, IST'J,
II notic'c to (|iiit at tiie eint of six nioiiths was
yiveii to (li'feiicliiiit, .sinneil liy ( '. anil l>y S., to
whom ( '. iiail sold the premises, ami to whom
('. coiiveyecl on the "th of May, iMT.'t. Hefcii-
ilaiit jinid rent to < '. and S. to Ist .lannary, IST.'l.
S. conveyed to the iilaintill' on the I'Jth .Inly,
isy.'t, and on the •_'Sth Octol.er followinj,' defeii-
ilant, w ho had continued in jiossession, paid to
the iilaiiiti'l' tile i|narter's rent due on the Ist of
Octolier : -field, that defi'iidant was in nnder a
yearly tenancy created liy plaintill's aeeeiitance
of rent, and eoiild not he ejeeted liy iilaintitV
without notice. <j)iueri', whethei' he eoiiId not
claim imder tlic original lease, on the ground
that the notice to (piit l)y<'. and S. had heeii
Maived hy the aeeeiitance of rent hy S. I!y his
notice he elaimecl under the original lease only ;
lint. Held, that if necessary, this should he
nmended. Mdiinhiu v. I)i n ril al., ,S,"> (^. H. li!(4.
Where the tenant enters nnder a verlial lea.su
void under the statute, a tenancy from year to
year may he ini|ilied, though no rent has lieen
paid. In this case, one I!, (i. verlially leased a
farm to the plaintiH' on the l.'ith of .Ajiril, 187.S,
for live years, at .SIOO a year. The jilaintitf
entered on the 17th, cleared 4.', acres, and put in
jieas and oats, of which the lessor was aware.
It. (J. died on the ."itli Se]iteinlier, having devised
the land to defandant, who entereil in the same
month and took the croiis which the plaintifl'
had sown : Held, that the jihiintitl' was a tenant
from year to year, and that defendant was a
trespasser in entering upon him. (HIiIhuiii/ v.
(,'ililioiiiij, ;Hi (,). I'.. •2'Mi.
See McPhi-fxn,, v. Xurn-s I.S (^ H. 47l'. p. 2048.
pftiil monthly :■ — Held, thilt the lease \\-i,s ;, ,1,,
mine till thu 1st of .Vpril, with an opii.ui t,, ti,,
luHHuo to remain afterwards as a monthly tiiuin
(not from year to year) at the rate of t'.'id ik vi;ir
and that it was not a demise of the uho||',',i ({„
lot 10, as alleged. Mfl'liii\iii)i v. Xm-n,^ \;\{\
It. 47:.'.
.\ll. Mdnthi.v 'Pkn.vncik.s.
The following instrument e.xeeiited under seal ;
"This is to certify that we .agree to give O. ."is.
cy. per month of the use of the farm, (descri-
liiug it) for .so long a time as (>. ni(iy let us have
it ; and moreover we fully hind ourselves to
give up (piiet and poaeeahle [lossessioii to said
O., of said farm when he may reipiiro it :" -
Helil, to ure.ite a tenancy from month to month,
deterininahle on proper notice. Oi:-<ir v. Virium,
14 V. r. -)7:i
Defendant leased totheplaintitf " that certain
frame house now standing and heing on lot No.
10," &e., "andlieing that house now occupied
hy him, also the u.se of half of the liarn standing
on said lot, for thu use of his two cows, from the
1st day of Xovemliur now next ensuing, for and
until the lat day of April following, a period of
live months," at n monthly rent of £"2. The
plaintitl' covenanted to keep up the fences ; and
it was further agreed that if the plaintitl' should
■withhold possession of said premises, and should
Tenuiin longer than the 1st of April, he should
pay at the rate of .t'50 per annum as rent, to be
.\l\'. I'l-.NKW.M. OK F.r.ASKs.
Injunction Lease, construction of .A^.^ii'iipi
of lease, or jiart thereof, entitled pro t.iiitd ti
lienelit of eoveiiant for a renewal and (iistniii.ir^
right of preumptiiin. .\/<'\'iiiii v. W'ikhIiII •> d
.S. X\.
\. leased to 15. and ('. Uiv foiirtci 11 vciiiv
giving a covenant to renew at the cikI i.f' thai
time for a similar term, unless he .sjioiilil d ,s(
to pay for the improvements. 'I'hc li-i^,. \(.,,
registered. The lessees then assigned pait dl
the premises, and the assignee did not I'luistir.
('. devised his interest to I!., who siihsci|iii'iit|\
mortgaged the whole premises to tlu' |i|,uiitills
the niortgagu was rugistcred : Held, thiit tin
, covenant for renewal diil not extend the tcini s,
as to liring the lease within X'ict. c 'M; that
the iiiiiiccessary registration did not maki' it
reijuisite to register the assignniciit, and thirc-
I fore that the mortgage to the pl.iiiititl's icmiIiI
; not affect the iiremiscs assigned. Iim d. A';/»/-
stun HiiUtliiiij Siiriclii V. ltuiii-<i'<iril, 10 i}. \\. 'i;!!).
The declaration set out that 15. hy an ai;ivo.
iiieiit under seal leased premises to K., and a!-
li'ged that it was thereby agreed that K. wa.s tn
jiay the annual rent of CIO, and Ic ijd n li-.i.^i i,(
15. for twenty-one years, with a renewal or valu-
ation at the termination thereof, said K. piiviiii,'
all expenses in (Mse of a renewal ; at the cud di
the second period K. to receive no ajluwainf I'nr
' any iniprovement ; lease to be pcrlVctcd with
the usual covenants between landlord and ten-
ant, at thu re([Uest and expense of K. It tliiii
alleged that K. conveyed his interest to 1... whi
I devised to the plaintitl'; that IS. 's iivuLsimi
' passed to defendants ; that after the e\|iii;iti(iii
I <if the twcnty-oue years, the plaintilf uiipliud tn
I defendants to execute to him a further k-n.-iu fur
a renewal term of twenty-one years at ,111 .iin
rent of t'lO, and thu defendants let'usul t
execute the lease, or to grant ti> pliiiiitilf any
renewal, contrary to said agreement: Ihl
on demurrer, that thu nienioraiidum of airn
nient contained no covenant for a remwai "t
the term at the expiration of twenty one yL;ir>
but to execute a lease during the term cimtain
ing a covenant for a renewal or valuatinii. /-"/
V. Ii(i/,/,rl„, 2 C. P. 488.
(Juiere, whether the instrumoiit was a lease "t
only an agreement for one. ///.
Plaintitl' leased to M. for 21 years, and it w.is
stipulated by the lease that at the expiiatimi nf
the term the lessee might retain pos.sessidii, nii
condition that within three nioiitlis a new rent
should be ascertained by arbitration ; hut tlmtii
the lessor desired to resume po.ssessinn he might
do so, on paying the value of the inipiovenieiits,
to be ascertained as therein provided for ; aiiill
this arnuigcnient was to be made at the eiul "ij
each term. It was then provided, that if "at t
expiration of the next or any subseiiiieiit termetl
21 years, no new ground rent shmild be ascer-f
1!
^^Kh-'-i
204 S
201 'J
LANDLORD AND TKNANT.
2(i.'»U
t\iat till! lease was a .U-
ril, witli iin u\iUi>n U>i\w
luttheraUM.f C.-iOiisrvr:
ileinw' of t>"' «U"|''"l till'
rl'liirmii V, Ami'., i;u,i,
odKHtnii'ticiii lit'
,ri'(if, fiititl
As,•^i^ln'l■
^ll'd tl\llti' tn
,V IV vtMiowal ami nistniiinry
McVkhi v. ll'ii
././/,
, ,,.uowat t\.o r.M ui that
■nn uuksH lu' Mi""l'l *li'"""'
,,„;..mei.ts. 'n"' \''as,. was
■sHci'S then assi-i.nl \.art nt
\a-. iwMguuo .li.l nut .Vi;ist.r,
;.C«t t.. IV, Nvl.n sul.sr,,,,.U K
,U. vrcmisi's to Uu' lilaM,tili> :
reUtercl : ll.M, that th.
,vl .Ti.l u..t i'Xti;.ia tin. U'vm >..
soNvitbmOVi.t. .■■ M'tha
.,H-istnvti..i. -IM u..t ..lak. It
n-^l.c assiji.nn.'nt, ;u,a tl.iv-
,t>.af^c to tl... vl^>;"t"V r'"'''
,.,;/V. /.'.M-„.V'"'''' l'^''*' ''•-'■
, !,et out tliat r.. I'V'^" ^"f ,■
K.usf.l i.tx'iuisi^s to K , ami ;il-
cut of CIO, rn.a /.. !'''\'': "'
iS- thereof, saiaK.l-."^
e of a renewal ; a th. ,...1
Tk to reeeive u- allowam-.: 1
,; Ic'ise t.. l.e perte.tnl with
Ltueeula..aWa.n.u.
(uvc^ui a.vfisum
,£?J-t^t.tUeesVu:.>t,,.
L veaVs, the X'^M ^q;l'l'^'>/",
r IV.. t. him a further iMsu tn
VeeUte lo nn" ..nnuiil
tftweutV-olli'y'^'"'''''^'"'
r t he clefeu.lauts retUM.l tn
Vto sai.l a^reemeut;- ;.
I'. 488.
Lrtheiustrumcutwasakascnv
fut for one. ^'i-
iw \i for"! years, an4 it was
■w ground rent shouUl l.t
taiiH'cl aw iiforoaaiil," or if tlic lessor siioulil not
nsuiiie jxihsessioii, then the ics.si'o .should I'ou-
tiiaie, uiioii iiaynient of the rent last ascertaineil
(,, |i|. |iayahle. This lease was assij^ned l>y M.
til ilefeiidant, as trustee for one K. At the
(Xiiiration of the lirst term of '_'l years no notiee
w;i.t given, nor lU'W rent lixed ; hut after the
three months hail gone hy arhitiation lionds
\V( re entered into liy I'', and the lilaintill'. l>e-
iiiiiliint aiipe.ind and aeted for !•'. at the arhitra-
tiiin, anil the arhitrators ilireeted a renewal lease
at 11 sum more than live times the lirst rent, or
tli;>t the lessor should |>ay a eertain sum foi' the
iiiiiirnvements. The lessor otl'ered to renew, and
liiititieil the lessee, who refused to aeeejit at the
now rent : and he then hi'ou;,'lit ejeetnieut :
llild, I. That the (ilaintitV eould not recover, for
ttliitiier the arhitration was hiudiug upon ilefen-
il:int or not, as to the amotnit of rent, he was
iiititleil to a new term l>y the eonditions of the
low, ami there had heeii no forfeiture ; •_'. I'lton
tliiMuiistruetion of the lease, that the provision
l;i>t nielitioued apiilied at the end of the |lr.^f
torni of '1\ years, as well as of suhse(|Uent terms.
aii.l that defendant was therefoiv entitled to ro-
tiiii imssession for another t(^rm at the (U'iginal
rout MrDiiiirnv. Ilniil/oii, 17 (.>. H. 14.
Tiiaii action against a numieipal corporation
nil their covenant to renew a lease, defendants
jiloaili'il that they had no authority to make the
IfiM', as defendant, who was an inhahitant of
lliotiiwii, well knew when he took it; and that
Wfiire the term exjiired a decree was obtained
a;;aiiwt them in C'haneery, of which defendant
li*l luitiee hufore this actimi, declaring that tlie
liiiil ill (iiK'stion was dedicated for a market
!i|H:iri' only, and that this lease had heen granted
nitlumt authority, and should not he renewed :
-Hold, "11 demurrer, no defence. W'ln/i v. Tlic
[\,(j:iinil'inii lit' till' '/'uini lit' Itrniitt'iifil. lit (^.
Itffciiilaiits leased lands to one W. for eight
years, on which the lessee covenanted to erect a
^nmil houst'during the first year, and the plain-
tiffs covenanted to grant a renew.al lease for ten
years at the end of the term, at a rent to he
lixfii hy arhitration. hefendants -were unahle
ti roiiew, owing to a decree in (.'hancery, de-
ihriiig that they had no power to grant the
Itase, The huildings, which were of wood, were
tenifivcil, and sold under execution against the
tkintiU', will) had purcliased the term two years
W'liro itt'Xpired for .*!H,()00. In an action against
iltliiulants on their covenant to renew : — Held,
tkt the plaiiititr was entitled to recover the
vilue of the occupation of the premises, with
tlie Imililings, above the prohahle gnuind rent,
nrtlie tenn which he hail lost, and that :?•_', "KM),
jtlie ainimiit of the verdict found, was not exces-
Isivt. .\loi<eaii, ,1., dissenting, and holding that
cnulil reeover only nominal daniage.s, lui the
'iiuuls (1) that for tlie renewal term ho wimld
liahle to p,ay rent upon the buildings as well
[utlielanil, luid (•_') that in the absence of fraud
inilil not reeover for the loss of his bargain.
i/iiijii/iH v. Till' Cor/ionttiiin of tin- Tmnt nf
imf/oiv/, 20 Q. B. .347.
M. leased iiremises to E. for twenty-one years,
wiiaiitiiig that if E., his executors, adminis-
itnra, or assiwis, should desire to renew (tliree
iitlis notice having been first given,) the rent
"ul'l be tixed hy arbitration ; that if M. neg-
lected to excilte iv new lease Upon the terniH
agreed on, M., his heirs and assigns, woiilil pay
at a fair valuation to K. for all huildings or iiii-
proveiiients, except those erected at the date of
the lease ; and that if M. neglected to pay within
one mouth for such improvements, tlu^ leuHc
should lie eonsidered to be reueweil foi' twtMlty-
one years at the siuie rent as before. M. de-
vised the premises to the plaintill's, or some of
tiieni. v.. subdet to \V., rcKer.iug u reversion,
and suliseiiueiitly assigned to liricudant. having
previously, about tliree months lufori' its expi •
ration, made a claim in writing for a renewal.
Uefelldant notilied the plaintitl's liefore tlii' end
of the term of his purchase, and his readiness to
arbitrate as to the improvements. N., one of
till' \ilaintill's, replii'd on their bidialf that the
devisees Would not renew, and rei|iicsted defen-
dant to point out the im|proveuieiits w ith a view
to arbitration if neci'ssary. No iinprovements
of any kind had been made by V.. prior to the
sub-lease, nor by defendant since the assignment,
but all had been iloiie by W. during his sub-
tenancy. No demand of possession was made
other than that contained in tiie reply to ilefen-
daiit's notiee : Meld, on ejeetment, that the
refusal by plaintitls to renew discharged ilefen-
dant from all necessary precedent acts for that
purpose ; that this discharge entitled him to
eoiniiensation for improvements, and to tlii! con-
structive renewal of the lease on failure of ]plaili-
till's to pay for them ; that tlic^ imprii\emciits to
be ))aid for were not those made by V,. alone, but
by W . a.s well, whoclainii'd under him ; and that
the improvements made liy \V. not having been
Jiaid forby theplaiiitiU's, the lease must be deemed
to be renewed, which could only be ilune by its
operating in favour of defendant, the assignee of
M. ; Held, also, that, the lease not providing for
the mode of valuation, the plaintill's might have
made it and tendereil the amount to defendant,
subjcet to deterinination by a jury as to its fair-
ness and reasonableness, in case of defendant's
refusal to accept it ; but that the defendant's
omission to liave the valuation made gave the
lilaiiitirt's no I'ight to eject : -Held, also, that
during the month allowed by the lease to \vx\ for
the improvements, ov at any rate until he was
jiaid or pending lu^gotiation-respecting them, de-
fendant could not be treated ,is a trespasser. Dis-
tincticui between a lease of this kind and the
ordinary lease, whore a renewal is claimalde and
is claimed, observed upon. Xmlill it iil. v.
ii7WrM/).i, i.'> V. V. :us.
A tenant of glebe lands, under a lease con-
taining a covenant fiu- further renewal, continu-
ing in possession after the death of the lessor,
and after the induction of his sucecF.ior, against
the hitter's will, has no insurable interest, the
successor not being binmd by the covenant.
■S/Klirv. P/iiriiix Ills. Co., '20 C. V. 170.
In a lease of 21 years, ending (Ui the 1st Sep-
tember, 1872, it was covenanted that on the
expiration thereof the lessor, one It., should, at
his option, either pay within SO days the value
of the buildings, or renew for a further term of
21 years; such value and the rent to be deter-
' mineil by arbitration. On the expiration of the
lease, an agreement of reference was entered
into, between C, the le.ssee, one B., to whom C.
had mortgaged his interest, and R., the award
to be made by the SOtli of September ; but it
i was agreed that, should the award not l>e made
2or.i
LANhLUUI) AM) TKNANT.
Iiy tliiit tiiiir, and It. mIkhiM elect to jiay liir the
liiiililinus, lie hIiiiiiM p ly tlic nuiii iiwiinleil uitliin
II Week alter tlii' awanl, ami the exteriHioii cit
tiliu' hIkhiIiI 1)1' taken ax a edveiiaiit in the lease.
'rile |p:irties enlarged the time Icir making,' the
itwanl niitil tlu^ Int Niivemher, ami im the 'Jlilh
(it Oetiihei' tile nni|iire niaile hin award. I!,
eh'eted til |iay fuc the linildin;.'.i, lint the annmnt
ii\VHi<led was nut |iaid t(i the nMirt;,'at,'ei', the per
mm <'ntitled tci receive it, nntil the ,"ith i>(
Niivendicr, mure than a week after the awanl
waM Tiiade. Met'emlant.s were tenants nnderC'.:
their l<'rmM were nncx|ii|i'd « hen thisai'tinn wan
lininu'ht, and they itad inid their rents tn ( '. for
the uniirtel- emlin>, cm tlie l.<t (Ictnlier. (Ml till'
ISth Se|itemlier, I!, leased the |irenii.ses tn the
|ilaiiitiir, and alti r It. had paid fur the l>iiildin;,'M,
the [ilaiiitiir demanded possession lioni dctend-
ants, wiiicji they refiiHeil to v'ive, ami int'ormed
lilaintill'of their ha\ini,' paid their cpiarter's rent
tn ( '. 'I'lie plaintill' then called on ( '., who paid
to liilii the pi'op.irtion of the riiit which he hail
received for the period lictween the expiration of
C'Hleawe, and the 1st of Oetohcr: Held, that
the receipt of the rents hy pl.-iintitl' from ('. wa.s
no eviih'nce of ,i reroi,'nition of an existin;,' ten-
uney lietween [ilaintill' and defendants, for there
uas no direct ilcidiii;,' with the teii.uits theiii-
Nelv(!S, iniii the fact of plaintill' deniamliii;.,' |ios-
>(e.HMion, and only Iu'Iiil; paid a fractional jiart of
the ipi/irter's rent paid liy the tenants to ('.,
reptdled the idea of any intention to recoj,'ni/e
defendants as his tenants : Held, also, tli.it the
fact of it. not liavin.i; paid the annmnt awaided
for the liiiildinLis « ithiii the week, did not de-
jirive iiim of his ri^^ht of (■lection, and so eiialde
('. to hold for a further term of •_'! year.s ; for 1!.
liL'inj,' the |iiopor pcisim to receive the aiminnt,
niij^ht extend the tiini' for paying; it. The plain-
tiff, therefore, was held entitled to maintain
ejet'tnnMit a^iinst detendants. Jtn'ifw <l(iril<ii,
•-'.•{('. I'. riiC
Where the lessor covenants for a renewal of
the term, or in default for payment of impnive-
liieiitu, the option rests w itli the lessor either to
renew or pay for the impinvement.s ; and the
les-seu eainiot eoni]iel a siiecilie [lerformince of
the contract to renew. //iilr/iiii.-'<iii v. liiiiiltnii,
3('hy. S'JI. I
A le.ase of land for four years, with a covenant
to renew for four years more, was held not
to reijuire rejii.stratioii, actual po.ssession having
gone with the leane ; and such a lease, though
iHit registered, was held valid, as res]iects the ,
covenanted renewal as hetween the lessee and :
the suhseijuent uuirtgagees of the lessor. Ln'rli
v. Brhjhl, II) Chy. Im.S.
XV. Kknt. !
I. T'liiic I'tir I'djliiniil.
A. leased to 1?., from the 1st of September,
1S4(), for six years, at a yearly rent ; the first
jiayment tn he made on the lirst of March, 1848, :
.and the succeeding yearly payments to he made |
on the lirst <lay of Afarch during the lease. Per
Rohinson, ('. J. — The rent for the sixth year fell i
due at the expiration of the last year's occujia- |
tion, viz., on the Ist of September, ISM. Per |
Burns, J. -The last year's rent should he accel- I
erated, and therefore two yeai's' rent were due i
on the Ist of March, 1852. Xml v. Scott, 10
Q. B. 301.
Held, under the facts Met out III tluH eit<
it wa.s properly h'ft to the jury to s.iy «
the rent was to he paid ipiarterly oryiarl
that they wei'e supported liy the c\|i|i
linding it )pa\al)le i|narterl\. WUmm v,
//'"/•.(, I'.' <.>.'l<. -Uli.
The plaintill', liy lea.se, eonsistiiii; i,f
sheets, and lieariiig date March l,"illi, |s
niiscd certain premises to W. On tin-;
July following this lea.se was I'aneeljcij hy
strillliellt miller seal ; the Neeimd aiiif
siieetswcie t iken out and replaced \,\ ,
and it was rc-i'Xecutid and redeliveieij «
any other alteration. .\s it then stuuil
dated as liefore, to hold " fr.om tlie |»t
.April now next, " for nine years, "frmii
next ensuing, " at a yearly rental, piivali
advance, that is to say, on the 1st of .\|i||]
and on tin; Ist of .April in each yeardiiri
term : " the comdiisnm lieing. that tlm
had thereunto set their hands and wi\\„,
dav and year lirst aliove written." In an
.igainsl the sherill' for taking W'.'s v,u
.'iiignst, I.SIi'J, without satisfying ii ycJu'
alleged to he then due: Held. Hm't tli,
took elleet from the ih livery, on tlie'JI.<t n
ISIi'J, not the date : that the term 1k;;,iii
Ist of April, iMIitJ: that the lirst vciir-
jiayalile "in advame," was not diie nm
day, till' words, "that is to say, mi the
April, KSd'J," heing merely falsa ileiiiniht
and that the plaintill' thei'efoie w.is piii|i(il
suited. liill V. Mi-K'niiUiji, •_>;( (}. \\, py.
Held, allirming the above case, llmt tlu
siioke Ironi the day of re-execntimi, unt fn
day of its date, and that the pnivisimis i
le.asc, in connection with the snrrciiiiiiliii;,'ii
stances, did not all'oid snilicieiit eviilena
contrary intention to justify aiiiU'eiviiti'iin
tion. S]ii'aggi', \. ('., Wilson, .1., ami .\|
V. ('., diss. S. C. ;< K, it A. !l.
.\., by deed dated "iTth of Seiitoiiilar,
leased lands to H. for ten years frmii tiie
of .lannary, KS(i.'{ ; yielding 'ind imyiiii;
during the said term the yearly rent nf
lirst payment to begin and he niaik' i
day of damiai'y, IS(i;{, next cusiiing fnnji
of these presents. Cuvenant by li^.sir
said yearly rent, on the said d ly and tin
in limited .and apiiointed I'm' paynn nt tli
Held, that the second year's rent was
on the Ist of danuarv, ISIi4. Jax/in y
I4('. P. I'llO.
Lease dated l.'ith December, ISil;
years, at an annual rent, half ]iayiilil
January, and half on Ist of I'Vliniaiy fiijli
in each ami every year duiinu tlie term,
agreement at the end that the lirst jiay
rent should not become due until tliu Ist
nary, IS(i4 ;--Held, that this agiviimnt
lirevent any rent from falling cliii' in It
was limited to the first payment tu lie m:
the 1st of January, IHIiH, or at nin.itt
for the first year ; ami that two years' iviit
fore was due before the 17th of NoviiiiIht.
I/iiKkiiiMon v. Ldirrcuo- ct «/., '.'(! (,). 1!. 'I'O
Plaintiff, by indenture, agreed tn m\
defendant certain land, the riglit t" in
which had been assigned by dofeinlant t<
on payment by defendant of certain sum
tliat defendant ■ should occupy until Ji
n t
/./
,t to tl... ,i.>.y to -<,» Mr
"1 I ,,,,,1. ,Uui, V. .U>i
til.
\
ii:,;i
LANDLOim A\|) TKNANT,
H\H
11,1 vi'l'li>''*''' ''V """'"■
'"t!Vuu.U.:U.yivwv,lw,tl,.,;a
.\h it tlu'ii uti""! It was
l.oVl "trj.Ki tlir 1st any ..i
„i,H, ye^Vf.*, '•trull. tlulK.
» ., v.''vr\v ii'ntiil. \.iiyal>lf m
veil yc;ii' ilunii;: tlw
,„,i„.. t'llllt tUr I'nltM
l,.,,iclrt ami mm!.-, "tli«
III nil ui'timi
luMllI
,■111
itioM.
.. to
.•■ (or
ii
< to s;vy,
,,t Al'ii* '"
luliiHioii
«i't t\i.'li
iIh.m' wiitti'ii
tor
Mill''
[irtriiim''
I mi*. '
Ivhli'll
I"!"
knai'i'
Jlvllli"!'"
r<iiii
wilhoiil
tli.'ii am
„, xUv .Ulivfvy, on
^atistviiiu ii vtMi'" ruitl
. \\M, tli;it \W liwl
tlic'^Il^t MiMiilvJ
>ii tiiel
■iitj
'4
".U . lattlu'teniil.i'^:u.".,tW
' ',;.,•' was not .li.-mitiltkJ
?:'"n n^t in to say. on tl. U. .1
v!::Svti.p.--rir'i?
/v. .l/.'/\ ""'•■"■."• -•*^^'
• „, t\u- al.ove case, tliiit tV
r'Ci ofrc-oxocutiou..i.tu.m.i
* • 1 tl.at tli<; \>nivisioin "I till
* " stifva.UllViviit.-u^tnio
toiitioiito^, lastly ^^^^^^ ^,^^^^,^^,
r'. :<
.,a aatoa -7ti. of s.,,^|
stoU. fovtonyt^o tl"
V (' , Wilson
^'t A. "■'•
Soliti'iulnl'. ''
nlll tllf l-t
■ l.liii.' ana l>;ivi"- y^'"'
1S( 5; vn''''"n , ' ■ ,• ,i-.i|i tl
sJatcnnthoyo^uyivu ;-;;;'[
'^^'>''^"''Covui.antl.yl.;-vt.
.■iiH'iit tm'ii'"''
lusunts.
iviit, on
th. sc.ona y.u • ^^^,,^ ^. ,,,;,„
Lf .lauuary, l!^'>-*-
l)U.
ISiK,
tlTlll. wiA
111 aiiiin
Vul half on »st ol
yuiW anrin
1 every ycaiooo.- „,
attheenatliattlnjn^t^l|.^^^.j,
tlu'
til
til thf
l,v'S from faUi;;^ '^/i;; 3
January,
IHilH, Ol- iit 111
It
luu
V. I.iiiri-cin-i
i,\ that tw
year ; "•"';;"*',, ..f'N.ivi'iiil'i'i-.l
,1. before the 1/t I <''..^,^
„ h\ inaeiiture, iigr
l\ been assJgr
iglit til 1*
,e.l hy aefeiiaaiit M
ilant of «'''t''
nt by aefeuaant oi ^-•-
iltiTilifiiiilt, lilaiiitilV ana aifcnaant nfiiivcl
J|lili\ttris ill aiUcrrMic. 'I'lii' aM.'lT-a |iost|ioiuil
.1 iljit,. (if iciyniriit an to wliich ili fi'iiilaiit \iiii[
l,.,ii ill iltliiiilt, and lietoie tin. a.iy xo lixiil a»'-
;,nit ti'iiaerea till' anioiiiil : Milii, that the '
lit fxt'cntcil liy iiluiiitill ciiutfa a >W'- ^
II' a ri'-ai'inise, in t'avoiir ol' ili'Iciiilanti
i.iiiiia have I II alwoliitcly axuiaea hy 1
iiUiiitiir "II the acfaiilt iiiaae hy ilcl'i'iiaaiit ; liiit
tint the irl'i'l'i'iiec after aelaiilt, either waived it
i(i(t|"ilii'a I he tiliu' ol [layliuiit, liel'oie the
iriitiiiii III' \i hieli time leinlei' had been made ;
'itllllt ill either \ie« idailltill' eoiild lint main
111 fii'itiiieiit uxainst defendant. liliuh' v.
J„„„, ITC I'. •_'•«).
iiii'iiKvin defendant juMWed justifying under
istivKs for !<\M) rent, due Isl of May, I.SdT,
111 iiidriitiire of lea.>e, hy wllieli dofelidaiit
til iilaintitl'for (i\ e years, to lie eiim|iiited
|,"itli Mai'ili. I.SdT. at the yearly rent of
(;>!'. I'.iyahle 1st .Novemlier and Si.iy dnrilii; the
',111 ,.Xfi.|itiii^: till' last luivineiit, « liieh was to
iiiliil nil the l.'itll March \ileeedin;; the 1st
,iv, riiiiiitiir lileaded, settilij; out tlie ilideii-
rviii lull, and .•illi',L;ed that only one instalment
nut had lieeome due liefore aelioii, wliieli he
ii4 (Irfcllihilit liefore distress. Ilefelidant le-
nt there were two inst.ilmelits due liefore
Ltiv^s, nil l>t -M.iy and Novemlier, I.SUT, and
it Hill' ellly as allej^ed : Held, nli delllUll'el',
ifcltiiill had. as eiilitradietin.j the lef,'al ell'eet
till' Iwi,'*!.'. Ilriiirii \. M !■('(! li I/, Is ( '. r. ■I.")4.
iticiiiliUit leased a farm to the |ilaiiitili' for live
;u-slr"iiitlii' Itlst M 're',. iSlid. He was to liiid
trtiiii mill seed for llie l.rst year, "to receive
iMitl'iirthelirst year two-thirds of ah tlie^;rain
itiu'le.iiK ■' reshed,and ready foriiiarUet, also
thinl "f lUe straw, turiiijis, and root ernps,
iiil'iif the hay ; for the remainder of the
u til receive oiie-third nf all the erojis, with
M.'('liti(in III the h.'iy, of which one-half."
iftinLiiit liiiviii;.' distrained on the Kith I'd'cm-
iMlT, fiirtliu second year's rent. Held, that
wiirils "when cleaned, " itc., ajiiilied only to
tirst year, and that the second year's rent
nut ln'ciiine due until the end of the year,
stMiircli, IMW. Wilson, .!., di;is., on the
iiiltliiit tliereiit, lieing ]iayalile in kind, was ,
wlii'ii the resjiectivu erojis were ready for I
ivtry. Xninni v. Voiiiiollih "^'.t (). H. 30. j
lenaiit iiLjieed with landlord to make certain
iriiviiiiL'iits ii|iiiii the demised jiremises, ten- |
"tiigt't the llrst three yi.'ars' rent for said
iiigsiiml iiiiiuovements, [irovidiiig they are
Ji'tt'il ill the tirst two years :" - Held, that
nut w:is sasjieiidod during the two years.
sJhiiiln; 1!M". P. -.m.
iili'V ;i lease, dated '21st Heeenilier, IHT4, for
tars, til ciiiiiiiu'iice from the 1st of April,
till' R'lit (if s8(> was to he payalilc aniinally
l.st iif .lime ill eai^h year, Imt sulijeet to a
" tbat if the lessee "shall yearly and;
year liming the said term, or earlier, if he
tliiiik iinniur, ehoi), clear, and fence in a
It iiiaiiiier six acres of the said land, then
irrwit year's rent shall be considered as
iiilsntistieil,'' The rent not being paid on
itiif .Imie, 18"."), and the lessee having then
ncres clciireil, the lessor distrained : —
that the rent reserved, payable on the 1st
usiiu'-'^^B'"^' "^''"'' ^''is then due and might be dis-
iiiitil Jeil^^Jil fur, and that the ett'eet of the proviso
'.veiirs'i'i'"'*
was not to NUHpeiid the riyht to dihlrain diirim;
the ciirreluv of the vear. I'mcii v, Ociy, •_•({
('. I'. 4(U.
.See MilliiiitK V. Ihni, -l <,). I!. .VJ."., p. •.'(»,-.7.
-. I*it iiiir iif HI .\'ft'<iii''f ,
A tenant may by parol liiml himself lo jiay nut
in advance, (!ii/i,r<iiUi v. I'mhin' , \0 i'. I'. ItlO.
I'liiler a lease dated Ist Oetobt r, l.'.'iT, haben-
dum for live years from the date thereof, yiilding
and paying therefor oil every tii>t day of (icto
her diiriii;,' the said term, it was proved that the
lirstyeai ■ lent had been paid in ad\ aiicc: Held,
that the nut Was not payable in advance for thii
.-ulisci|ilelit years. Mit'iilliini V. Siii/i/ii\ IOC
I'. I'.tl.
Covenant, for three i|iiaiti'is' nut, alh'ued to
be payable by the lease iiliarterly in advance.
I'lea, as to the rent for the last i|ii,irler, cniu-
nieiicing on the 1st March, ISCil, I. That before
the cNpiratioii of the lirst month of that i|iiarter
the plaintill wrongfully evict, d deleinlaiit ; '2.
That by a provision in '„lii' h" se, in case of thii
mill dciiiised l"'ing aceideiit.i' ''IiiimI, the rent
was thenceforth to I'easi.', iin that it « as so
burned on the .'ill of March I'til ; It. (Ini'i)uit-
able grounds, as to the rem. silbseiplelit to t'li!
(Itli of March, iMil, tl i .■?ame pmvisioii o tins
lease, alleging the del .vlion of the ii '11 by tiro
bi'fore the nth ; Meld, on delil. rni, pleas bad,
for the relit bi iiii; payable in aii-anct, w.'is duo
on the 1st of Maiili, andnoiliiie wliuh (icciirred
afterwards could diM'st llic jilaintill's riiiht.
/.'//i/M V. /,//o».s •2-2i). li. I-.!
Ilefellihint oii the 'Jlid .Se|itcnilH'r, IST'J, leased
land to the plaiiilitr for live yens from the lab
October, bs7'-', at the y ally rent of s-j:{(l. pay-
able on the 1st of ( Ictolier each ye:'r, in eacli iMiil
eNfi'v ye.'ir during the continuance of the term,
" the tirst iiaymeiit of .-'JdO to be made on the .'{Isfc
Iteeember, KS7-, in advance, the li.ilancc of ^ai<l
year's rent, amounting to s'M), to be ji.ii'l i;t tho
same time that the payment for bS',";} is to bn
made. " In an action against the defeinhint for
distraining on tlie lltli October, \S~',\, for tlio
second year's rent : Held, that such rent was
not pavable in advance. /Irnfn \. liluil^ic II, ;■!,"•
I'lvidenee was tendered that the instructions
to draw the lea.se, and the agreement of both
partiiis, was that the rent should be paid in ad-
vance : Held, there being no ei|uitable plea, that
such evidence was ]iioperly reiected ; and that
an eijuitable defence is not admissible under the
general issue by statute. Held, also, that under
the Administration of .lustiee Act, IST.'i, defen-
dant could have pleaded an ei|nit;ible plea setting
out the facts relied on for altering the lease, in
aeeonlanee with the agreement of the parties ;
and a verdict for the plaintill' was set aside, oil
payment of costs, to enable him to do so. ///,
See J/<uiiii' V. 7'((-//o/', -Jl ( '. W rid, p. -.'O.-)!* ;
ConioiL-w lh>ii:l.s 32(,>. li. ()-i.-), p. •JOiil ; /■'o/v/c.
V. Rriiiiolih, 18 ('. r. 110, p. -JO'iti.
3. Pai/ahli- in Kiinl.
A. leased a farm to B. upon the condition that
B. was to deliver to him one-half of the wheat
.1
TANDLOKD AND TENANT.
i-;.
1 '
f
raised on it. B. was to harvest and thrasli, and
•leliver tlie wheat to defendant's granary : — Held,
that under this agreement A. and H. were not
partners in tlie wheat while it grew in the tield,
but stood t.) each other in the relation of land-
lord and tenant ; and that therefore no legal
property in the wheat could vest in A. till H.,
the tenant, had tln-asl: I it and delivered to him
Lis portion, //hi/i/dh v. Cnurj'uril, 3 (). S. oSS.
A., autliori/ed hy government to settle a town-
sliii), covenanted to allot B. UK) acres tlierein,
and priicure a ]iatent as soon as the settlement
duties were performed, anil H. covenanted to
pay A. a Imsiicl of wheat per annum for every
acre cleared after he liad heeii in possessifin for
three years : — field, that \. might sue for the
rent after B. liad lieen in jiossession for three
years, although no patent to B. had issued. J/c-
'NiiIi v. MrFarlaiii; li O. S. -'SI .
M. in the spring of IS")2, agieed hy parol with
A. to work his farm on sliares, and put in a crop
<tf rye. In l)ecend)er, 1852, A. entered into a
written agreement with (!. to rent the farm to
him for tlireo years; and in .lanuary, ISii.S, A.
<lied leaving a will. M. in KS.")3, witli thea.saent
of (i., reaped the crop which lie had sown in tlie
previous year : -Held, that the share of such
crop to MJiich A. would have lieeii entitled must
go to the devisee of the laud, and not to the
executors. 'J'iilili;< v. Mvnjuti, 12 (^. B. 151.
S. A., liefore marriage to V. H., her present
husliaiid, on the 1st of April, 1857, leased cer-
tain lands to defendant hy tlie ye:ir, one-third of
the yearly crop to he paid as rental. To a de-
claration claiming the non-delivery of the crop
as agreed, defeiidi<iit pleaded; that on 17th of
April, 1S()(), the lands in (|Uestion were sold
under Chancery sale to one I)., who paid his
•leposit and sigiieil a memorandum, and therehy
became entitlccl and entered into possession, and
took and converted one-third of the crop to his
own use, whereliy he, defenilant, was prevented
from furnishing the same ; —Held, that I), being
only an inchoate purchaser, he was not entitled
to tile crops, anil therefore that defendant was
liable on his contract. Itichnnl'Xin <■! ii.r. v.
Trii'i/ir. lie. P. i.m
Plaiiitifl' demised to defendant certain land at
the clear yearly rent of !jl.50 per acre of cleared
land, on 1st Keliruary in each year, (uie-lialf in
cash and one-half in work on said land, in clear-
ing and fencing as hereinafter mentioned, with
a covenant for payment of taxes by defendant,
■with liberty to deduct one-half, exclusive of
statute labour, from the rent, one-half from the
iniuiey and one-half from the rent to be paid in
labour, and defendant within the tirst year to
make and put up in the fences on said cleared
lanil 2,000 rails, for which he was to be allowed
out of said rent $'20, viz., ijilO out of the money
nut, and.'?IOout of the labour rent ; with the
further agreement, as to tiie rent to be paid in
■work, that defendant should be allowed at the
rate <if !^\ii per acre fen- the land which he sliouhl
chop, log, clear, and fence, in payment of said
rent. Then there was another clause, 'that the
jKirtion of said lot now choiiped, but not cleared,
and also the jiortion under contract with McK.
for chopping, shall be logged, eleareil, ami fenced,
■within two years from the date, by the said lessee,
who, in return for his work on said portions of
land, shall have two crops therefrom free of rent,
I and shall afterwards pay the same rent iie
I forsaidjiortionsas for the land now cltare
] Held, that the tenant was not liable fm- n
I land to be ciiopped, cleared, and liroii.rji
j cultivation by him. Jdik-i v. M(,ii>ii',7ii,
(.'. P. 157.
I The defendant, who owned a furin, agreei
i the jilaiiitift' to M^ork it on shares, eacii df
sujiplyin^ one half the seed and lalxjiir, i
! have halt the jirolits, the plaintiH' to p.iy .*
implements, and SICO annually ; Imt the iil
; was not jdaced in possession of any distim
tion of tlie farm, tiie parties being eiiun
! possession of the whole : -Held, that tlnr
i no lease created between the parties, aiul tli
•SHiO was not rent for which the defendant
I di.strain. (Jlicr/in v. Mrd'rciior, '2IH'. I', j
See Xuircri/ v. ('nniuillji, 29 (j). 1!. ,'{|),
I'-
4. A iqiiirthiiiiiHiil.
[See .37 Viet. c. 10, (•.]
Where a tenant leased premises at t>uv
\ rent, and his landlord dicil, h.iving dcvisi
premises among several ]>e;soii.s : -Ijijil,
those jicrsons might ))'iug sc|iaratc ;ii
against tiie tenant for such jiart (it (lie v:
eacli would be entitled to acconljui.' to I:
j spcctive share, without any other aiipuitimi
than a jury might make in cacii suit. //
it.i-. V. l'i-<iii(lfiivi, () O. S. (!I7.
; 111 an action of covenant between tlie ori
i parties to the deeil, an eviction frum ]i;irt(
; premises is a good defence to the lutiiin, I
can be no apportionment of the runt ii,> in
ShiitlUinirlh v. Slimr, (> (,1. B. 5.S!I.
Declaration for distraining wiici'c im rciij
, due, and for excessive distress for rent.
, pearcd that ilefendant li;ul leased to tht |
till' for a term of years certain inciiiises, [«
of which were at the time in the pci.^stssi
other [larties, who retained iiossc.'i.--iiiii
the plaintitl'. In eonse<|Ueiicc of tlii.-;, ilut'i
after the tirst year, agreed with jilaiiitilf
i aliatement in the rent for tlwit year. liilV
I however, subsei)Uently distrained Iiir tlio
i agreed to be reniitteil : -Meld, on tlu' nut!
()f Neale i\ McKen/ie, 1 .\l. & \V. IiH,
at tlie time of making the lease, am
the whole period the rent was dainiu
legal term was created by the iii^tniiiif
I lease iietwein tlie parties, iii coMsei|ia'ii
the adverse bedding of parts of tlic iirei
and the plaintitl "s exclusion thcrcfnnii mv
no right to any rent in resiiect of sucii [Kirt
i ever arisen, and that therefore the rent udii
i properly be apportioned, because the tfimiii
' plaintiff) l.'ad never been subjeit tn tlit
rent by virtue of the deiiiisu. A'//// v.
! 17 C. P. 351. This case was reiiiarki'ilii|"i
i not followed, in /[ollinid v. Vini-ii'iin,':',
I 15, p. 20()3.
; See r;-oo/[-.< v. Dh-h.'<nii, 15('. P. •->:!, p
! Il„rl«p V. Tdiihir, 21 ('. P. 5!!. p. •.'C'lii; ?'
V. Jlui-lnp, -I'i C. P. .-)42, p. 2(l(i0.
5, Almtciiiiiif.
A tenant who covenants tn pay leiit ffil
deduction thereout, for or by reason nl
NT.
•2m
idol
erwanls pay the siime ront ]ier airi>
msas for the land ikiw clciuvil ;
le tenant was not lialilc Ini- iviitfi,|.
:h()])i)e(l, cleared, and liriinjrlit Jut,,
)y him. Jonis \\ MaKtiii.mi ni ■l\
lant, who owned a farm, aj;reL'il with I
to work it on shares, eauli cif tluni i
e half tlie seed and lal)ii\ir, aiul tu I
J prolits, tlie plaintiH' to jiay .StIO fi,r
and !ii!UiO annually ; hut tlic iilaiiitirtj
eil in possession of any distiiut ii',r. f
farm, the parties heinj,' e(|\ially iiil
' the whole : — Held, that tlKjiu wmJ
ted between the parties, ami tliattlu
t rent for whieh the <lefenilaiit niulij
hci-lin V. .1/cf ,';•(-;/(//■,•_'()( '. 1'. 4til).
LANDLORD AND TENANT.
matter or thinir wh.T.(;»n/.,.„.,
.l"otion for the L.ount: /t^;^^^';""* ^T " f'
Ik house and promises ,IeSV; ^^, '"" ^'"'
U'here tlie Ian<llor(I lii.i
.lietaiautallrea uti "^^^^^^^^^ to allow
to, in the amount of 1,^X17'!*^ ",''■"''-' ''^
tdiant could deduct the vain,.' fi.r '•'"'* ^'"^ \,^' - ---•' ft;uiises. I)ef,.„,l.,..* ,-■''>•">' <iue
«tsfrom the rent .he •.?„,, ^*''^''"l''•''ve■ ««•!";;■'% distrained f , r t ' ' ' '"'^■*-'^''''. «"l-
miuction n,ight he 2',; ' ' ' f l''^^ ^•"••'' "^I'tof -^''"tted : -- Held, disti.i: "'" '^e'^^'l to be
fh of riens h, arrear '7. ''^ "''"•"^•^ '"ulor the , ^] ''y""'. « E.v. .'«-., that t f ""*'' ^^ "tson r.
tl 3 & 4 A'iet. • " '''"'■■•'"" '■■ i'ol'nrr, T. l',J--*'"tiff an.l .lefend!;;,. !.^.^Tr^''"«:"t I'utween
To .111 avowry under a (Iistrp,« f
fiai«tiffreplie<l riens in a,, ' ' ' 1 'i '■'^"*' tl'e
iFi-'I.V an agreen en to 1 ' m'"' "'**» ««t out
.LaVepairs'and to'de u^' £'^'-' to n.ake
tereiit, whieh he averred it,,* , """""* ♦''""'
^H ( i„.,.ii t- . t4c»,
4. A jijtortiiiiiiiii III.
[Sec .37 Vict. c. 10, (I.]
tenant leased premises at (Hii.' uiitirj
s landlord died, having dcvisud tli|
long several pe;soiis : -IkM, tkil
ins might b'iug separate iiitim,
tenant for such jiart of tlie rj'ita
be entitled to aeeordiiig t" liis
re, without any other aiipiii'tiiiiiiiKn|
might make in each suit. //<'
/foul, (i O. .S. (il7.
on of covenant betMxeii thu ini.'miy
le deed, an eviction from i«u't nt till
a gooil defence to the aetinn. TliirT
iportionmeiit of the rent a.i i
" V. Sliinr, (i Q. 15. ,"i3il.
in for distraining where 1111 1'lr.t »i
!• excessive distress for rent. It ;ia
defendant had leased to tk' iilail
■in of years certain premises, pnvtina
ere at the time in the (Misscssiiiiif
es, who retained ]Kisses>i(iii ngainj
f. Ill eoiiseipieiiee of this, ilofwula
irst year, agreed with plaiiitilf tu
in the rent for that year, licftinlji
ibseiiuently distrained foi- tlii' siJ
le remitte(l : --Held, on tlio aiitlimtt
. MeKenzie, 1 .M. & W. TiiiUbj
le of making the lease, ami ilnri
pm-iod the rent was elaiiiiLil fur,
was created by the iiihtruiiieiitl
cell the parties, in e(iiisui|Ui'iiteJ
,e bidding of parts of the iiremij
iiiitiil"s exclusion therufnnn ami'
any rent in respect of sueli \artii
, and that therefore the rent lih
J apportioned, because the toiwiiiti
sad never been subject to tliftnl
rtue of the demise. A^■//// v. //'f
)1. This case was remarked ii|iiiii. I
■d, in Ihilliiiiil V. \'iiii''l'iiii, -I ^\
I.
„/•.. V. irirUiii, i."i('. p. •-*:f.i'
Taiihir, 21C. 1'. .-)(i. p. -JO-W; ?H
•li O. P. .")4-.', p. -'UUO.
5. Ahutciiiint.
t who covenants to pay rent ifA
thereout, for or by reason ol !
>«'i1r^L:t.!:;^ *--"t that if i.
I"--' 'Inving house •&e'nT84f;, '"!'' *''*''
, ,'lit <lo it in J844, a ,1 ,.'1,1 . f' *'"^ tenant
,>»t(.f 1845. The la Kilo .,1 Hf*; '*. "^'"'"'t the
-»t only began to pS,X^'\^^^\ ' *'-
.tkh month he painted imoJi , '' ''"!'"ig
^■tl,eta^er«, bu ha I n .t ,' ; '" f "' .*«■" «»<l«
m b-iilding on tlie I'the'''} l^'""t"'o' any
i'iamllnrd distndm.d } J '^ '^"^^ !«*''. °^'"^"
I the 1st of Jul^ i845 ';^"'J'^'«'-ent ,lue !
M the .listress was wn',7 . ' "! "''-■plovin, !
Wing whieh had been b *'■'"'■, *''""«"' the ^
Ul, "exceeded the ,p, .-tfe""' '?*,""* -'»'-
Ik .Minwr y. 7/ur/,Tli B. .V>" '''^trained
Pla>"tiff ami .lefend ft *t,"^ Tr'""^"' ''^■twee.
t 'e rentdul not c rea e -l „ '''^ ''''atement of
; them at a new rent . nft,' '^''' ,t'^"'»"t'V betweeii
train therefor, because "'^' ''''^'-''"''"'t to ,h "
whicli it alone h.id .. V 1 '''"'" "f the year tr.
«e» created for that "4 .'"t, h'"'^'' ""' '"^vo
; to be paid eouhl not hivo 1. "'^^ '"""' ■'^yee.l
«»'" 1". gross, and cornt? '■""*' "'"t '-^ ">ere
, I'eeii distrained for- u , , ' ,'^^""se(juently have
.kaltttement of rent wnc „ 1 . -
N^lantuponthegn un 'thatT'* f ''^ *''«
krm H road forn.in'"; , ^ , rf "' ^"'" ''^■'^-
fflJted; hue, -Held t ..f^,^ V '"'.'"'^'^ to the
Hoad could n'ot hi .'oltd I!''"" ""^ •^^■'•''■'"-'->
^■aace, andthatthere 3 een "' '" '"^I'l'"'-
I Plaintiff leased land +... I f 1' ^" ^- '^ '•
Ml not exceed £10 a ve^r *''^'* ''"'' ^'^"^^^
-fat to lie p,id by the lessor"' '■"T""" '^'"'^-'^
N that the lessor Lht"/ n '"' " "■"■' I"'""
hrkj-'fr a reasoiiSe dedue?;^""? "^ *''«
Vtt.«efor, to lie .leter mined ':.r/'"':i'' *'"^ -
^ "I 'iispute. I'lie ( ' ' p' ,''y ."'-'titration in ,'
ti"iiof thelaud, which ,h.f,.V, .'■/■'"'""■«'' ''I
^I'-Vthe interest of th ,!""''' ""* '^^" '»-■•-»-
kv, but should £ , ete. '""-'^ l'''^''^ ''>■ ti'-'
h«,nsideration of tt "' ''>' *'"■' J-'O',
»'™^"t of the la I ,dd ?'"■"*'"'-■ ™1'"^ to
''a^thu average ^'ue of 1. '?'."",'"*'' ^^'- V^^
hi'^saic the lessor CO Id 1'';'''" = '^- '^''"»t I
Jediationt 4 That t - '• '"'"'trate as to
; iccount of the sale ^^^/./"'' J'"'"" tlie
iv5S5^r'hr'*«"^"'-i-i--tion
hieLidforLc^si^p'r";"^^''^''-*-' "<' rent
h' that defc'ida ^"'^j,.;',f' '''' ["'' ''«'*• It I
fc^"" ''f years cS.rremr '" ^'•''"'"«'
f «'^'';e at the time „'"^""f'-'«! I''"'*'""^ "f
6. 7>;v,„,/,,, n,lnhah;M,le
Action for rent iji„ i,
i"ftf,,..,,abiS,„'f:;, "^^'''^''-'-''-an.e
'"'""tting water, and f ,- ' ." t'^ '"'-o. "^ ^''^^ '''"'f
i age, whereby the s'li I \ "'^ suflicieiit drain-
i "n wholesomi, iioi ; i'''.rr 'r'"" ^^•^'*' ''-"P.
tlie plaintiff J,a,i,,otiee't/'''''''f'^'-'' "f ^vhidl
!'i'"tted the .same bef.'.itth ""'"'"'* ^'^^''^^-Pon
j tlie time for which re l, ,'"""","'^^''"«"t of
Pfrmiw.^ j7,
Vov//
I A., the a.ssi<rnee of fi,„ 1
llesseeofag,.i.t'mill,i.£,tf;?"'' f"^^ "" tl<e
jr'o" aiiis the follow in L . V'"'"*- I'''-' lease
^"'•l'""«elf, lii.s he rt-xec It ?"*•■/' ^"''" ^^'^'*«'•^
',""/ "-';/«.s covenants '^nd' '"'"""'^trators;
, It-'iKlant, anioi.<rst ,f , t "•' """"^■'-'^ ^vitli the de!
-l^^'fe.!, a..! the dwelhi ! '" *'"-' «'''«t miU
;"'.; *';"''«ge thereto by &..;?'' "»""','*'^ ^"«»
I "ill should be by mist.k, V : '," '-■'■''*^ the grist
' V tire, and tl.e'^s f^Jn, ,' '"'* '''^T' "'■ "'J"'-!
ouiiistaiices as wo, M '''I'l '^ '*• """It-'r such eir-
-^i'^C'ill, his e.xe;SL'""'^ ^.''" «'">l .'oha
"-'//"■S to recove th loss ; ''''''':^'^*'''-^^' '""'
; ^■oiiipany insuring the s^ m,' "' ""^ '"*»mnce
: "'^'-'V' then un it s ei."'" "' '''''' '* ^>^ »<'<>
«'ould ordinarily ent thf 1 7'«,"ii«tances as
liadheeii insured ," ^!"' '" '''« loss if ho
' «-a ,ioh.aj^;i;i^',£- -■;; that case iie,\J:
reasonable time after s,\di,v>'L''''''='''^'>- '"'»l
epair or rebuild the «S 1 ,1 '""V ,«'""' '""I
tlie time the grist mill^sh ill 1 ' '"" •'"''"« all
,»'K..m e.msejuener,f sue, 1" "'"''*''"'• ^^^""k-
h'-e under the eircu isf'r T"^'' '"' !"«« 'V
I'-e'Iuctiou ami aWrc^"^^^^^^^^ '' ^^ir
I rent, to be ascerta iie .,1 " '"^ "''"^ "' the
ll'ulKferent arbitrat ".s oi e to r'^'"*"'- ''^ t^«
the said .)„h„ Me(7iir K,*"h-''l'P'''''te.l 'V
'f'li'.inistrators, and asL '"j'?,' '-''^ecutors.
t le sai.t .f,,l„ J.,., ";;,,. ;27f'.«>ai|'l the other I,;
ti'i« covenant, 1 „ '" ,'. '? 1"'''' " *^'- ^^''-l*^^
'-^Honing avJrments " T, ' t '•'* f?"^'""'"K the
J ".It after plaiiititt'a
i il'l'i.tiv-'"-
If'^NJ
20.19
LANDLORD AND TENANT.
title aconiLMi, tlio grist mill was accidentally i
burnt anil dustroyud liy tire, under sneii circnni-
stances as would ordinarily liave entitled tlie ■
plaintitl' to recover the loss arisinj,' from tlie tire,
if jdaintitr liad tiie grist mill insured against loss
l>y tire ; and also that tlie annual value of the
yrist mill was fully e(|nal to f2(H), as the rent ;
that ouglit to he due and i)ayid)le annually for
it ; and that the sum of t''2l)() was and is a fair
aimnul allowance for the use of the grist mill,
and is of right to l)e deducted from rent to lie due
and jiayahle from the defendant to the jilaintitl',
for the (k'stiuetion of the said mill l)y tire as
aforesaid, and that after the destruction of the
said grist mill l>y tire, neither the iilaintih' nor i
tlie (lefendant apixiinted an arbitrator to i!sti-
mate tlie reduction of rent to he allowed for the
name, and that the mill has n<it since hceii of any
protit or advantage wiiatever to liiin, the defeii- '
tlant " : — Held, uiion ileinurrcr to plea, that ;
under this covenant the assignee as well as the
original lessor wim hound; Held, also, that
neither the landionl nor tenant having referred '
the deduction from the rent (which was to he ■
made under the circumstances provided for in ;
the covenant) to arhitration, the tenant was I
therefore not precluded from making the |
jury the medium hy v liieh a deduction was to
be made. (i>iiiere, if the landlord had otl'ered to ■
arbitrate, and the tenant had refused, could the
reduction then he referred to a jury. Mrdill v. ;
Proiiilfuul, 4 Q. B. 33.
A. le.ised to !>. a house for tifteen years, and
during the term, hy agreement, A. therein as-
sented to an assignment hy H. to ('., and gave
C the o])tion to purchase the fee witiiin one
year, at a given sum, payable hy instalments ;
and C, at the time of the agreement, paid \.
.^^^)0, to be on account of purchase money, in case :
he elected to i)urcliase, otherwise to go for rent.
There was a proviso in the original lease to F>.
that should the house lie burnt the rent should
ecase. ('. did not imrchase, and the prcmi.-es
"Were afterwards burned, at which time, long be- ,
fore the e.xiiiration of the lea.se, the rent due was
£\'2 10s.: — Held, that, notwithstanding this pro- j
viso, A. was entitled to rent until tiie tTiO was [
absorbed. J'i'/nr v. l\'il/iuiii-<, 'A C. 1'. .")(>.
It was provided by a lease that in ease of the
total de»truct')ii of the jiremises by tire the
term should e-ase, "and the iiroportion of rent '
lip to that time shall he ecjuitably adjusted be- :
tween the jiarties." The rent was payable half-
yearly in ■..ivance on the I'lth December and the
J5th dune, and on the 3()th < Iclober the premi.ses
were burned ; — Held, that the eti'cet of the cove-
nant was that defendant would repay to the
plaintitl' so inucli of the rent paid in advance on
the loth .lune preceding the lire, as ex a'(pio et
bono it w.as determined he should re])ay : tiiat
tlie plaintitl' might sue for such proportion, to be
determined by a judge or jury, -witliout iiaving
it first adjuste<l hy arbitration : that the cause
of action was well stated on the declaration, and
that a specific averment of a surrender of the
•leniised premises, as a condition precedent, was
uiiiieeessary. J/ortoj) v. Tdiilur, 21 C I', oti.
Action on defendant's covenant as surety of a
lessee, under a lease of a mill for nine years fnmi
15th December, I8()8, at a yearly rent, payable
half-yearly in advance on the ir)th June and
December in each year, alleging non-payment
of three half-yearly instalments of the ivnt
served. I'lea, on ecpiitable grounds, that iji
dant covenanted as surety only : that iiv
lea.se it was agreed that in ease ot the (
destruction of the mill by accidental liie
the lease should at once cease and be ataii't
that the lessee paid all rent due \\\\ to tlic t
destruction of the premises by tire, iiiciu.iin,,
half-year's rent due on the loth .Jiiue, Imij)?
that the premises were so destroyed dii the'
October, 18()0, whereupon the term ee.iscd '
was at an end. To tliis the plaintitl ie|ilieili
after such fire, the lessee, with the kimwi
and approval of the defendant, coiitiiiueil tn )
and occupy, and still holds and (leeiiiiies
premises under and hy virtue of the lease •
with the like knowledge and a]i|iioval nt the
fendant, would not and did not ]nit an ein
the said term, or surrender said ]ireiiiises; |l
plea good, for defendant's covenant heiii'
strictcd to the term ceased with it ; aiiiltiiiit
replication was l)ad, as shewing at inest
creation of a new tenancy, to which theedwi
would not extend. Taylor v. Ifoiinii •>•'('
542
Defendant also pleaded, by way i\[ estup
that previous to this action the le'ssee .-iiied
lessor in the County t'ourt, alltM;iii^< tiiat
the lease, in the event of the total (iestruii
of the mill by accidental fire the term sim
cease, and the rent he a])]ioitioiied : that ui
such destruction on the 30tli (letolier, Isiiii
said term ceased, and the lessor I n-eaiiie lin
to refund to the lessee such part ui the r
paid in advance as on a just aiiiKiitinjiiiii
should be found due, and the le.s.see alloiifil
such action that •S137..")() thus beeaiiie (fiie
him, for which he sued therein ; that tiie ks>
the now plaintitl', pleaded in suili aetimi t
the said lease was not his deed, ami js;
being joined thereon the lessee reeuveieil ju
nient for the said sum of .•? I .'>7. .")0. Tlie
then alleged that the judgment reiiiiiinei
force, and that the rent sued for in this ae
was rent accruing clue after the said
October, ISli!) :Ueld, a good jilea ; that
judgment recovered, if a bar to the reedven
this rent against the jirineiiKd, \v;is ii
defence for the surety ; and that siieh jmli'iii
was a bar, for though the plea of rm, ,.</ ,?,
did not put in issue the destruetinn (jf tin-
and consc([uent determination of the term
these facts being necessarily aveiveil in
action, and not denied, the lesser w.is
estopjied from disputing thciii. llehl, alsu,
the replication to this plea being the saiatM
the first plea, was had tor the suiiie reiisdii;
Vlaintifl', on the 30th December, ISlIT, I.u
two mills to one T., called the » latiiieal iiii
the Kriii new mill, for ten years, at s|,(HKI|
annum, jiayahle half yearly in aihaiiee, mi
15th of .lune and December, with a (iaui
for re-entry on non-paynieiit, ami :\\m\\\
if the Oatmeal mill was biiiiied, there shdiilil
a reduction of !*400 pc • annum in the ivnt,
if the new mill was Imrned, a leiliutidii olj
per annum, and if both were destmyeil, tli
should cease, and only the [iroportiiiiMifrwii
at the time of destruction be jiaiil. Tlit
mill was burned <in the 30tli uf (letnlur;
rent up to the 15th of Decemlier (rf tliat
Iiaving been paid in advance ;- Held, tlwt
lessee wjis not untitled to the rediietinii et '
iustixlineiits of t\w ivnt n-
■ uital>li3 gvouii.ls, tliiit (\dVii-
, Hiivety >ii>ly '■ t'"^*^ ''>■ till'
I tliat ill ^-'ii**" "' till.' tntiil
inill \>y acci.loiital tiu', >^>'
„tice cuase ainl bo at un wi.l;
t -vli rent <li»J "V t" t''^' t"t;il
„rcimsi;8l)yt'n-i^^. 'i"l'"''"«tli,:
J. ,mtliul5tU.huie, lMl'.);aii.l
rtxre 8(1 (lestvii.Vfcl nu tlic llOtli
„ this tho iilaiutill ivvliul.tlul j
e luSSL'U, with tllL' kuo\vl,-il;^i.
,0 aefeu.laut, I'.mtiim.MitH lu.l,l j
still li<il<ls anil urnnnus, tlii; ]
uil liy virtiu; "f the kiiso, lunl,
iwledge ami aviit"^"!'! "' tliu ilt-
„t anil 'li'l ""t \">t :>ii ^I'l to|
^un-en.U'i-sai.lliifimsrs; \W
lelfudaiifs cdVi^iKiut lii.'ni;i w-
■ viu ceasc.l witli it ; lUiiUliat tk|
li'id, as KUe\viii,L; at must tlwl
• t'oi»iit>^'y' to whivhtlit'n.Miuiutj
2061
LANDLORD AND TENANT.
2062-
jve:>i' for the poriod from tho 3()tli of (tutolier
tdtiio l.'ith of Dt'cumbcr, for vvhiuli he liad al-
fjiiily jiaiil ; iiii'l that liaving iusistuil ujioii re-
taining for Miieh rediietion out of the rent falling
line oil tlie 1.5th Deeeniber, he had incurred a
!(irfeittire by non-jiavnient of his rent. < 'unioi'k
y.Dudils, 32 (,). Jl (!2,-..
so V
re
im on
ised, aw
leaded, liv way of
t'tl''-l.|
„ tliis actum the less™ su.,! the
Comity t'ourt, alU'-ium tliiit 1
,e event of the total a.^tvuct.
accidental lire the tenii slumkll
nt he atiliovtioiieil : tlrnt iii»i
the :Wth Octoher, ISIIiUliJ
I the lessor lii-cauH' liiilild
the lessee such \iart uf the Mil
as (111 a jnst ai.i.urtiniuutnj
uid tlie k'sffu alk'^ui'
that , ,
•h he sued therein
intilf, I'leaded n. su.'h
not his deed
■liereou
said sum
Jovered,
lieini!
not deiiiei
in disputing, .
|m to this plea heiui;
Bv a lease of property in the town of London
the lessor agreed to erect the outside of a frame
liiiilihiii,', and Ixiuiid himself in case of its being
iltjtmyed liy tire to re-build /(/ //it- .siinic crh-iil,
iir in liofault the rent reser\cd to cease. After-
jai'ils tlie iiouse was burnt ilown, and in the in-
tcrviil the municipal council liad l>y Ijy-law
iiriiliihited tlie erection of frame buildings in
lliat locality. 'I'lie lessee refused to pay I'ent
juk'ss the lessor reliuilt, and the lessor then
tiled :i hill to cancel the lease, as it had become
iiii|i(issilile for him ti
Tin. court refused
mission in tlie answer, directed a reference to the
Blister to tix . I proper rent to lie jiaid u\ion the
lessor I'c-huilding witii brick, with costs to be
mill liy the plaintilf. ]\'illiiim.i v. 77/«>', 4 (.'hy. :
Si.
Altliuui,'li a lease by an incorporated company
mvlie void, in conseijuciice of the same having
km L'xccuted witiiout the corporate seal, still '
tlie laud leased; but,— Held, tliat under tho
: evidence tlie road could not be looked upon as an
appurtenance, and that there had been couse-
, ipieiitJv no eviction. Shiiltlt irmih v. Slniir, {',
' (,». B. .Hit.
I In covenant for rent between tho original
I parties to a deed, an eviction from part of the
premises is a good <lefence ; there can be no
portionment of the rent as in debt. //i.
ap-
ince
imd due, , ,
1S7 .'>0 thus bocaiiK' Hue'
thattk'ks..
acti'rti tlia|
SI. was not ..." "^— •""' '"..
the lessee rccivevnl jiMJ
{ .•^lUT.'iO. 'Hie \^
that the judgniciit r.Km^^'\}
a the rent sued tor .11 tins adid
.,, nu due after tli. sui.l
'Held, a^oodpea; tkittH
if a bar to the rtcoviry^
,-viust the pniici\i:d, «.is , ,J
' ^nrc.tv • aiid that sueli ju.lguie
;.\rvghihcplea..f. .;'.""1
', issue- the .lestructuiu .It til.
determination of the t.nn,-.,
necessarily avev.u.l
■a the les'ior «.(■< I'l
them. HeU.also,'
this pleabeim;tlies;u.R'M|
was bail tor the same reaso
1,,, the ;Wth December, ISilT. M
r, T c'dled the Oatmeal mill
•'''nul/fot ten years, at SI.IH.
Ivui luvlf yearly -^J^^^l^,
le and December, ^M h •' ^ \ '
t:m.n-paymeiit,<w, ai--
l.,i „uU wasbuine.l, tlKK.ii""
b So pe- annum in tlie an,
I Uwas Vur.ie.l,area«etioii;
^"K.oth were .U'st.iye.1, the
Im
Kn'tiou
,f .lestru.^tiou be p.U'l-
and only the piJ'V
111' velitl
lirned on
l.-)th of I
In replevin, defendants avowed un.ler ilistress
for one quarter's rent, due to S. li. one of them,
oil a ilemise to the iilaintill's at a .[uart.a-ly rent.
The plaintitl's replie.l I. Xon tenuerunt ; 2.
That S. 1). hail ]ircviously leaseil a portion of
the premises .leiuiseil to them to one 1'., for a
term unexpire.l, an.l that 1'. evictc.l tho pl.iin-
titl's. To the last idea, defeii.lantsreioiiieil, that
will.; ivn.TV^. (!..-> lu mm nK:\^inn\^ ,. , . ..,,. i . -i i ,. , '
;o carry out ids agreement. ' *'f idamtills voluntarily .leliyered up poss.'ssum
tliis relief; but, ou a sub- "^ such portion I,. I ., an.l elected to remain as
tenants ot the ivmam.ler tor the time and at the
rent in tiie avowry mentioned. It was lu'ove.l
that I', liaving a lease from S. li, , iuclu.ling a
narrow strij) of laiiil .lemi.se. I to the jilaintitls,
and whicli liad been iise.l by them as a passage
to the rear of their iiremises, began, about the
niiil.lle of the iiuarter previous to that tor which
the rent was claime.l, to put np a bull. ling which
e.ivere.l such passage ; that in lieu of such eli-
ii the lus.see eii'.er ai.d Jiol.l thereun.ler he will i trance, another was opened .m the north si.le of
Ikliiible for nil rents reserved thereby .luring the house, on lanil l)eloi
llie time lie s.i liol.ls ; ami where an instninient
I was so execiite.l by the agent of an iiicorporate.l
I lank, under which the lessees entere.l and ocu-
|pi«l, hut, h 'fore the expiration of the term
lleiuiseil, the buildings on the pi'cniises were
lilestroye.l hy tire, and tlie lessees oniitteil to
l«ivciiotiee ot abanilomneiit : held, that they
litre liable for the rent during the residue .if the
IKnu, whieli hail since exiiired. J'iiihnj.fun v.
\nyi, i\ I'hy. 3-2.").
Ill siuli a casi^ the property had been c.mveye.l
Ik the owner to tlie bank *^o secure an imlebteil-
litis, wliieli had been fully pai.l liy the ]ir.icecds
Lithe insurance efl'ected on the biiil. lings, an.l
Itkliaiik e.iiitimie.l to liold the pr.>]ierty simply
lis trustee for their assignor, an.l refuse.l t.i take,
litsitirei' the a.ssiguor to take, any pr iceediiigs
lintlieii' name against their lessees to enforce
pjTiitiil of the rent. The court, under the
pmnistanees, made a decree for ]iaynient of
: .imouiit ill favour of the partv iieneticially
Bititled. Ih.
[■>ii Cull nil,- V. M<'l'h<i-snn d itl., I ( ). S. 22,
f'»; l)i>i(<il(('"< v. Miir/>liii, 111 i). 15. Il.S, p.
Bl; Hiji )•■■<( V. Li/oits, 22 (.IV,. 12, p.
2(>.-)4.
8. Erirtidii or E.i}>iilih
louse, on laiiil hel.iiigiiig to S. It., an.l [lave.l
with boar.ls taken from the ol.l passage : that
the men wh.i .lid this work, wer.; employoil by
the plaiutilfs at I'.'s rcpiest. and were sent by
them to iiim t.i be jiaid ; that this change of tlie
liassage was pr.ipo.sed by tin; iilaintill's, as they
sai.l it w.iul.l answer tlieiii as well. After it was
made the iilaiiititl's p.ii.l the r.Mit for the follow-
ing .(iiartcr, claiming no .le.lucti.iii. Wh.Mi the
next (piartcr's rent fell ilue, they refuicil to pay,
claiming an abatement for allegcil injuries cause.l
)iy the erection of I'.'s new liuil.ling, but not for
the obstruction of the passage way. This was
refuseil, as a separate action was then iieii.ling
for til. ISO injuries. !>efeii.laiits .listraine.l, anil
thereupon this action was brought : • Hel.l, that
.lefeii. hints c.uil.l not supiiort their avowry as
for rent reserved, .m the whole of the premises
under the original letting, for no interest passe.l
t.i tlie plaintiil's in that part which lia.l been pre-
viously ilemiseil ; th;it the plaiiitili's were not
preeluile.l by their assent fr.iin setting up an
eviction by parainount title which they couhl
not have resisted ; an.l that, un.ler the plea.l-
ings, they were therefore eutitleil to a verdict.
It.ibiiison, ('. J., .liss., ..II the gr.mnd that the
evi.lonce of consent on the part of the iilaintitt's
j was suHicient to warrant the jury in tiniling that
there was no eviction ; and tint the arrangoment
between 1'. and the plaintitl's did n.it put an end
to the original lease, so as to prevent the defeii-
I Where in as.suiupsit for non-payment of rent dants from avowing under it. Ctircy >■< ni. v.
pnliiig t(i agreement, defendant plcatle.l an ' 15(i<tii-kk- cf .//., 10 t^). H. I."i(!.
kittiuii liy 11 stranger, who ho averred entere.l
theHOthofOetitel
,e inthofDcceuiheriJ J]
XSJil^^^^ *'
Declaration oua b.md eon.litioued for the per-
forinaiice by one V. of tho covenants in a lease
made by iilaiutitl' to him. Tho defen.lants
jilea.le.l 4th, that at the making ami during the
, continuance .if tho lease the plaintitl' wrongfully
j retaineil possessi.m of part of the demise.l preni-
I ises and refused t.) all.iw .lefemlant, V'., p.issos-
Au aliatemeiit of rent was sought f.ir by the sion thereof, -whereby V. was preventeit, &e. ,
itii'hmt upon tho gr.mnd that he ha.l been i ujioii which the plaintitl' took issue Upon the
taltvom a mad forming an appurtenance to ; trial the evi.lence ten.led to show an eviction.
Hka lawful claim derive. 1 thr.iugh or under
qiliiiiitilV, the plea Wius hel.l ba.l .in general
mrrei', liecause it di.l not show that the claim
|iglit not have been un.ler a title .lerive.l fr.im
It tenant himself. McXah v. JlrlJim,!/, 2 l).
ilM
I!
U )
i'00:3
LANDLORD AND TENANT.
rather than that the lessee never took possession,
and tlie court, by reiison of the variance and the
amount at stake, granted a new trial, with costs
to aliide tlie event, giving the plaintiff leave to
amend his replication to the fourth plea. Muc-
iloixild v. Vanwiick tt at., 12 C. P. 26.S.
f 'ovenant for non-payment of rent on a lease
by i)laintiii' to defeiKhmt for '2\ years. I'lea, on
cfjuitable grounils, setting up in substance that |
the plaintiff claimed title to the land under a i
deed from one (J. : that before executing this i
deed, (J. agreed with one H. to sell to liini part i
of tlie land, and tliat H. should have possession ;
of it until he had completed the contract, and [
H. took i)ossession accordingly, and lie and his
heirs liolding such possession of right under the
said agreement, defendant hivs lieen wholly pre-
vented from entering into and enjoying saiil por-
tion : — Held, oil demurrer, plea bad, for that at
most it shewed only a parol (lemise, and that only
as to part of the premises : that ( !. was merely
tenant at will or at sufli'erance, and liable to be
ejected ]>y ilefendaut ; and that relief, if any,
would only have been apportioiiate, and upon
terms, in a court of eipiity. C'rooki v. Dkknon,
lo ('. r. '23.
Defendant leased to the jdaintiff by deed for
three years, there being another tenant in pos-
session of part as a monthly tenant, who wac
succeeded by two others, holding under defen-
dant : — Held, that the lease to the jdaintiff,
being under seal, operated as a grant of the re-
version (witlithe rent incident thereto) as to the
))art thus held, and that defendant was entitled
therefore to distrain for the whole rent in arrear.
Kelly ('. Irwin, 17 C. V. 3r>7, remarked upon,
and not followed. Hul/niiil v. Vaiistunc, 21 Q.
H. 1.5.
To an action for the breach of covenants con-
tained in a lease, in the non-payment of rent,
iind leaving tlie premises in .an improper state of
repair, the defendant pleaded on ecjuitable
grounds, setting out the demise, whereby the
plaintiff demised to the defendant certain Land
and premises on which a mill was erected,
"together with the water-wheel in said building \
and the riglit to draw water from the mill-pond 1
adjoining the .above described premises for :
driving the siiid water-wheel .and in.acliinery \
driven thereby," &,c. The plea then averred ,
th.at one IX, claiming by title iiaramount, having
proved such title by an action brought therefor, j
hindered and prevented defendant from using |
the said water so demised, whereby the demised [
premises wia'e rendered useless and of no value '
to defendant, who delivered up possession to the i
plaintiff' of tlie said premises and water rights in
a perfect state of repair, and defendant had not |
used said premises during any portion of tiie i
time during which the rent sued for accrued |
due, and delivered them up as aforesaid before '
s.aid time commenced. The plea then prayed
that the action might be restrained, and the
jilaintiff ordered to pay the costs thereof, and
thiit the <lemise should be delivered uj» to be
canceUeil : — Held, plea bad, as a legiil defence,
because the right to nse the water was no jiart
of the ilemised premises, but merely an ease-
ment thereof ; .and even if it were, an eviction
in respect of it wouM not authorize the tenant
to abandon the residue of the premises ; and
as an e(juitablc jilea, because no case was shewn
for a total abandonment of the conti-.iet
defendant having paid rent for some ytju-g ^,„
not replace matters as liefore the lea.so, ami
hadaremedy byaeti(m on the plaiiitill'simi,
covenant to supply the water-i)ower r,,/, ,
V. JMdkk, 25 C. I'. 570. -A. Wilson, «ittii,,
vacation.
It appeared tlmt the defendant, tlio lanilli
having leased certfiin premises to the iilaii,
had rented the outside of the fence aiuuinl
premises to one G. to post bills on, but the iij:
tiff' claiming the fence, C posted no lulls '
only put up a notice forbithling others ti ' i
bills without his leave, which notice was im]
down :— Held, no eviction. O/inr y )/,
34 Q. B. 472.
9. Paj/meiU or Temir «/' Uml.
Coveiiiint for non-p.ayment of rent due oi
lease iii.ade by plaintiff to defend.ant. Mea t
A. was seized in fee of the premises ainllual
to B., whose term came to the plaintiH' hv assi
meiit, and that afterwards, during the twni ;
before .action, A. distr.ained on the ocLiipiors
the premises for rent due on the lease fnnn
.and received a part of the rent from them a
the residue from the defeii<laiit : ~ -Held, (m 'rj
ral demurrer, plea good. LiDimrd v. Biifh?,,,,
« (). S. 407.
Defendant leased to F., from wliuni he tod]
note in i)aynieiit of arrears of rent K. let t
plaintiff' into possession .and the ]ihuntitiina
p.ayments to defendant on account (jI rent i
which defendant gave receipts as Un- [ireiiiit
leased to F. :— Hehl, that the plaintiff i.(iii
not insist upon the taking of the note ;is a d
charge of the rent due from F. MvLvdv Dun
7 V. P. 35. ■ I
The plaintiff" declared that on the !2tli
ceuiber, 1857, one T. mortgaged eertaiu laiK
defend.ant for £300, .and defendant, liy me
randum in writing, signed by said T. an
fendaiit, then agreed with T. to lease saiil 1
from him, T., for two years at £40 a year, w
said rent defend.ant and T. then ai'ieed sli
be eiiilorsed on and taken in part paynie
the mortg.age, so soon as the two years slim
have elapsed; th.at afterwards in .Apii,
defendant sold and assigned said iiicirtjj.U't
the idaintift', and then promised the jilamtifi
p.ay him the £80 at the end of said two yci
but did not p.ay the same. Plea, that ijti.
said .agreement T. sold and conveyed the
to one (i., who thereupon gave nutiee tmlt-
<lant to p.ay said rent to him, and that
wanls defendant paid to (i. the lirst yeir'
and then g.ave up possession of the h'nd t" lii
—Held, on demurrer, that the deelaratien
insufhcient, for the agreement between iltit
dant and pl.aintitf" would be witlm-it ennsiile
tion, as they could not without T.'siirivity
pnnnise his right to the rent ; and that tliu
shewed a good defence. Miii-diif v. W'lU'
ll
18
The jilaintiffs, two corpoi-ations, deelarfJ
defendant's covenant to jiay them ><'l'l,'i\) j
six mouths' rent, due on the l.'itdf .Inne, "
Defendants pleailed that the ]ireniises 1
were sitn.ate partly in the United States:
the plaintiffs had their place of htlsinl.':^$ in I
Llll,.i 1^
2or,j
nent of tlie omtviut, fnr
[ vent for somi' yc:irs c(.\iUl
8 l)efore tlio Itasv, ■mu\ lie
,1 on the plaiutitl s m\AM\
he wivtev-l>ower. Cul.nwa
579. -A. ^^ ii**""' >*itt"'y "'
•l,e ilefewlaut, t\i<; liinainvtl,
n urenuses to the plaiutitV,
,le of the fence anmiid the
o post l.ill8<.u,Vmt the vlam-
nee t' vostetl no \>iUs, lunl
•e forln.Wing others to v^st
Ive wliicli notiee was vuUe,l
eviction. "/;.•,.,• V. -Uo.,.,
2065
LANDLORD AND TENANT.
2066
-.n-vavment of rent due wi a
^tl-to^lefenaant. Vk-a tl,a
ee of the vrenuses an.l lei^e.l
,ametotUei.lamt>"\.yas.,gu.
Et«-waras,.\urmg the tern, a,,d
:Ustraine.l on the «.ec«V.er. ;.i
rent .l«e on the lease from h.
..vt of the rent f r.)iu them, a*l
^^aefendant.-HeRongeue.!
Uniteil States ; ami that on the Ist of .Fune ile- | t'omniissioners of a turnpike trust, ajipointed
fendaiits tendered to them there .5-2,500 in law- under a statute limiting their iiowers with respect
fill currency of the United States, which they j to demises and to the eolleetion and a\ii)ri)iiria-
refussil ; and the defendants hrought into court tion of rent when due, made a demise hcyoud the
«|5,,V_',") of lawful money of Canada, which they ! sco]io of these powers ; the tenant was jiut into
averred was on tlie said 1st of .lune, and is 1 possession and enjoyed his term ; the connma-
criiialiu value to the said S-'-',,")00 of the law- i sioners, at tlio expiration of the term, took a
fill currency of the United States. The plain- ] promissory note from the tenant for the rent,
tiftn replied tliat the deed was executed in I giving time for payment: — Held, that the eom-
Caiiada : that one of the plaintiffs was a comiiany ! missioners, Ijy their clerk, could not sustain an
inciiriioratcd and having its domicile here, and 1 action upon such note, heeause the iiromise to pay
the I'ther in the I'liited States: that the rent : the n(ite arose upou an illegal eoiisidcration, viz.,
re'ervod was payable in current money of this j the illegal demise. -Kohinaon, C. .1., diss. Ire-
iiioviiicc ; .and that at the execution of the deed j hnul v. lltwss ct til., .3 Q. li. '2'20.
,n,\ liitherto thi! saiil !?1.''J,.")()0 was and had heen | , i , ^ • ■
'"" , J. , i,)., roo ... 1 ,. 4. ,4 I.:,., t ' A. sues as clerk to commissioners exercisini; a
iwavs cfinal to ;?■_'_', ,')00, ami not at any time to 1 , ,. ,0 ,-f .
"A 5-.-.. of cinrcnt money of the province ; and : l"'l'l\^ ^rust under an act ,.f parhament (3 \ lot.
; ;i the te.uler made of the e(iuivalent in Anier- i ^- •'•^) "l/"" •'» f a'e''l 'h-'ise ot tolls for a ye.ar,
1 currencv of the last mentioned sum was not < ij*/} ■•'^"* payalde every tortnight in advance, the
';;^1. On d'emurrer to the replication : Held, -'*' ^^'■- V ^I'at act re,iu.ring the rent to he
, /i.1 .,f,.o..f 1.,;.,,, „,.,.),. ;,, ^•.,,,..,1., .,,,1 niade payalile monthly ; the lease stated in the
tiat the contract being made in ( aiiatla, and , , ' .•' . ■ . ,. 1 1 • 4. i. n
X- ■., , „., ,>I.,,.,. „l.^,-,. fl,.. i,.,,-,.,..,.t^ «-.,i... t-,. 1 declaration is said to lie subject to the provisions
meiitioiu it; no i)lace w Here me pay meiits V ere Co ! . , 111, 1 i n , ,
"'"'^ h .' . . .' •' . ^.jjj^^ ! Ill the act :- Held, on demurrer to the declara-
; tion, that the plaintill', as clerk to the coniinia-
i sioners, could not lie permitted to recover oil
' I such a contract, because it is a coiiti'act substan-
tially ditlcreiit troiii the one which the commis-
sioners are expressly directed by the statute to
make. In/nicl v. Sohl,; :\ Q. 15. SAX
the
eago
lod.
/,,.,))(((/•(/ V. iillWllUi
1 t,. V fnmi whom he t(">kal
nfarilaVsof vent F let tk
.ossession and the plaiiM made
Salt on account nt ve.it, lor
^^ that'fhe vhnut\ff .«U
" tlt'e takinu of the note as a dis-l
.leclared that on the l'2tl. DeJ
' T mortuai-ed certain lamls ti^
'v^oi and'le!^'"'^""*'''>"'r':1
1.500, anu ^ ,j. 1,^
"'"^^'/St to lease saidhuvll
?rtt.vSs.at£40ayeaMM
toi two .y I ^|,„„1J
, 1 vssicned said iiiortgag,: t
r^'lc;n^">,isedthevtomflt
■and tlien i" siid twn vrt-
1 £80 at the end " "'^ti,!,
,mv the same. ' l^''- ^"' , ,
^Y. .old -.i-'-gt,a
^"*Y3'to'h.n,-:Sthat,an
leuAiossessiono^;!^;;^;;^^,.,
llemurrer, that tm ^^
lUltltt wouiti , J
.^:;!e'.:i:S;t-i^attJ
liirlit to the
T)od defence
Murdiif V. 11'
lit made, must be govei'iied by (uir law .
the rent must be intended from the declaration
to lie payable in cun-eiit money of ( 'anada : that
there was nothing in the j)lea to disjilace this in
temlment ; aiul that tin; plaintiU's therefore were
entitled to judgment. Tlif Ni(tii(ini falls Intcr-
ntioml lirhliji' Coin/xni!/ (iml >hc XUtiiura Ftilln
1 Sii,w».«i"" Jiriili/i' (oiiijiiiin/ V. The(ln-(it Western I
''l\\\Co.,'l-2(i. 15. olfi. ■ I
In order to constitute a legal tender, the j
I niuiiev must be either j)roduceil and shewn to
the ereditor, or its production expressly or im-
I iilieilly disiiensed with. Where, therefore, to
iriive a teiulor of a (juarter's rent, for which the
ilet'emlaiit had distrained, the evidence shewed
tliat the tenant, after refusing to pay some
I charges and costs wlii(di the landlord claimed in
1 iililitidnto the rent, said to the landlord : "Here
listlie rent," which he had, and t(dd the laiuUord i
Iheliail, ill liis right hand in a desk, but did
I Diit prtiihice it or shew it to the landlord, who
laiil nothing and left the premises : -Held, that
I there was no evidence of a tender, or of a (lis- j
Iwiisatioii witli a tender. Per (Iwynne, J.~-'ro ' by the plaintill'.
• fast a landlord of his right to distrain a strict j R. '274
llegaltemler must be shewn. MnlheHnii v. Kelli/,
'ilC. K "iDS.
The mere taking of a note for rent, will not
Ibke away the right to distrain, but it is otlier-
Ifise where, in consideration of receiving it, the
IkuUovd exfiressly agrees to wait until it has
|kiuhsluiiionrc(l ; and in this case, upon the
Iffiiloiiee set out in the report, it was. Held, that
luch agreement was proved. tSimjwm v. J/uuitl,
90.15. GIO.
covenant to V-jy . ,,,„ t^
^••^"^N'^rXlt the ..e'.nise.le
'pleailed t\'f/V',\it[,,i States ■■
Assumpsit for rent. Plea — that after the de-
mise, the estate became vested in the principal
ollicers of her Majesty's ordnance, by virtue of
7 Vict. e. 1 1, and thereupon the estate of the
plaintill" ceased and was determined : that the
.said principal otlicers gave the defendant notice
of this change in the title, and not to pay over
the rent to the pi antill' ; ami that <lefendant is
now li.able to them for the use and occupation ot
the preiiiiaes : — }leld, not double, or bad, iia
amounting to the general issue. Held, .also, that
it was not necessary to negative in the plea any
promise from the said jirincipal oliieers to the
plaintill' of a lease or conveyance of the iPiemiees,
even it' the statute i'ei(nired them to grant it, for
that such an interest should have been replied
(Ainaiiiijlin III V. Diiiiiie, Q.
I t'ovenant for rent tine on a lease of a mill,
i alleging that although plaintill' had performed
j all things in the lease on his part, yet the rent
: remained unpaid. Plea, that the plaintiff per-
mitted the dam ami race to be out of repair, eon-
\ trr.ry to his covenant in the lease contained ;
! without this, tliat the jdaintilT had iierformed the
j lease on his part as alleged :-- Held, no defence.
Wilkes v. Sli-ele, 14 (,). B. 070.
The plaintitl" leased to defendant land in front
of the city of Toronto, with the use of the water
adjacent. The corporation, in the coustruetion
of the esj)l:inaile, cut otf the access to tlie water.
— Held, th.at defendant was nevertheless bound
to jiay rent ami fullil his contract. Lytiiaii v.
Hmtn; 9 C. P. 104.
The plaiiitilV sued defendants for non-payment
by defendants of ground rent to the city of To-
il une 111 re[iievin, me i.iuiuioii iiMiweii oir , I'oiito, due on a lease by the city to one H., wlioso
i years' rent, but proved a tenancy for only j executors had assigned part of the property to
fce year, although the tenant continued in pos- defendants. Defendants, in an e(iuitable i)lea,
'^iiiinfor three yeara, having however paid no ' act up, in substance, that the supjioscd frontage
Jit nor made any acknowledgement during the 'of the land on Front street constituted its sole
fcttwoycars:— Held, a fatal varianceon the plea ! value, which frontage w.as not inclui.led in the
inuntemiit. '77(c»h^«oh v. /'ocou^/i, E. T. 3 V let. ; lease by the city, as they discovered before,
'130
10. Set-it'f (iijiuiisl Rent.
I Sfvoffmay be pleaded to an action for rent due
iniler a demise, though not ; > an avowry for rent
iiire|ilevhi;-.l/c /!»»««// v. Tickell, -23 Q. B." 1'2'J.
\V1
11. Ot/ier Om.'.*!.
replevin, tlie landlord avowed for
ill.
LANDLORD AND TENANT.
taking po.nscRsidii, ami Ity reason of sucli error | a special rate created by a corjioratifin Iiv-
they hail not the land liargaincd for, &c. : — ; as well as all other taxes. /// n Mi.-li)/.
Held, on duninrrer, reversing tlie jinlgnient be- ! 'Ac Curiioni/ioii nf /In- CI/;/ nf Turniild, \ \ (
low, tliat tlie jilea aU'orded no answer, for no . ,S"!).
' concealment or imiMisition was alleged ; and de- ! J)t.fendant took a written agreenuiit f
fendauts, )iy calling for tlie lease, of whicli they ' • ... ...
had notice by tlie assignnient, might have ascer-
tained tlie facts at lirst. T<tllnit v. No^ain, i-l
<il.,'2:\Q. B. 170.
A tenant absconded leaving rent in arrear,
■wliercujion the landlmd distraiiieil, but before
selling tlie tenant sent to the landlord a power
of .attorney, antliorij'.iiig liiiii to dispose of the pr
lease of certain preinise.s, wiiich wa.s silent
taxes, Imt when it was signed he viil
agreed to pay taxes. No lease was ever t-x
ted, owing to a disagreement on another in
Defendant occupied tlie preiiiises for 'inir vt
jiaying taxes for tliree years withcjiit nljjt.Vi
but wiieii sued for rent wiiicii .--ulps ■ijiit..
accrued, Ik.' claiineil to set od .such taxes dn
l.erty ; and byletter he (lirected tlie lamiiord to \ ground tliat as the agreement made no i,i„vi
pay himself his claim for rent, as also liis claim for ' '"i' them, and couM not be aiMud to l,y vt
exiieiisea and trouble; and after payment thereof I •••^■Kl'J'ifi'. they must fall upon the la]i(li„n
and of tlie plaintitl" to remit the balance to the i H"-'!''. that having made the jiaymeiit v„
tenant. The landlord then abandoned his war- tarily in pursuance of his own agietiiieiit,
rant, and disposed of the proi>erty under the
power : Melit, that the landhird by so proceed-
ing had not waived his right to payment of the
rent due, and that the plaintiff was entitled to
be paid only out of the balance remaining after
payment of such rent, as also of any rent due
by any former tenant for which a distress could i
liave been made, together with the landlord's >
expenses and charges for trouble in executing the ,
trusts of the power. '/'i/nrll v. A'd.-v, 17 C'liv. '
394. ■ ■ I
A tenant in common being in actual occupa-
tion of tiie joint estate, is not chargeable with
rent. It would l)e otherwise if he had been in
the actual receijit of rent from third parties, i
y?i'(r v. (h'unjr, 20 Chy. 'I'll. \
if it were without consideration, lie cduM
recover back or set oil' such payment, l/c 1,
V. TkMI, 23 Q. B. 491).
A tenant occupied a Inmse for some six vt
during which period he jiaid his laiidlmirs t:i:
-Held, that he could not deduct tlie ti
paid out of the last (piarter's rent undci' tlie;
clause of the Assessment Act, althouL.'li tliere
no agreement as to payment of taxes lietw
him and his landlord. Wnth' v. Tlcniiifnii '
J. •->•_>.—('. C— l-eggatt.
Action by lessees against lessor for an evict
I'lea, that the plaiutilFs by lease cmeimii
that they windd during the term ]iay all t,i:
and that the iion-fultilnient of their eoveiw:
or any of them, slimild operate as a frnfeituri
person who does not occupy and has no J the said deed, and that the same shouM he c
r to lease cannot be charged an occupatioiij sid^red juill and void ; that during^ tlie ti
'//(. Life A-i-i(ir(iiici' Ctt.
A
power
rent. T/tr Kilaihii
Atk-ii, 2.3 Chy. 230,
t(
certain taxes were imposed on the land, .■hikh]
iiig to .'?S. T)") for municipal, and S9. ."i,") fur sdi
purposes for 1803, which the jilaiiitilis diil
nil
XVI. Rates .\m> T.\xk.s.
jiay, although the same were duly ileiii;
and they had no distress on the land ; ainl
taxes ill March, 18(i4, were returned by tl;t
A tenant who covenants to pay rent without > lectin-s as due on non-resident lamls,' win
•iny deduction cannot claim a deduction for taxes ; the said deed and the term beciine foikite
paid by him. (Ivanlliam. v. Eltiott, (J (). S. 192. i void ; and the defendant .afterwards iieaci
Certain premises in the city of Toronto which \ e"tered, and became possessed as in hi
drained into a ravine were demised by defemlant ' *''»*''^*'? ^vHeld, on demurrer, that the pi
to one A., of whom the plaintifi' in replevin was i «»tti^ieut : that the taxes became due wh
assignee. The city, in making improvements, | '"■"i<led, and plamtitls had ii..t the win
closed up the ravine, and thereby accnmnl.ated ' ^'\V'^y^ them in ; and that it was uiuieee
endcring a drainage into
water on the jiremises
the common sewer necessary. The plaintiff then
drained his premises into such sewer, and paid
the sewerage rate ciiarged upon the proprietor
of the property, and claimed to set it off against
defendant's rent ; -Hehl, on demurrer, that such
payment was voluntary, and could not be re-
covered b.ack from defendant, although it might
enure to his benefit, (ijuivre, whether the ten-
ant was not lial)le under his covenant to pay
taxes. AIi/hvII v. Ilamilh, 7 C. P. 9.
■Semble, that a lessee of a house in a city can-
not be .assesseil as occupier wlieu he no longer
occupies it, .although his term still continues ;
but. Held, that the plaintitf in this case having
omitted to .appeal was li.abie to pay the sum
set out every reijiiisite to shew a valid ivitu,
j being a distinction in this res(ieet lietwu
I avowry . anil a justilicatioii. Tm/hii' v. Jir
' 2."> y. H. 8(i.
I Held, affirming the judgment nt' the i,ir.
\ Hench, that laml owneil by a city, Imt leasi.
I them to .a tenant for his own ]iriv;ite puii
' was liable to taxation, and that the eurinii-i
might distrain for such taxes. Moriisi
diss., on the ground that the laml was imt li.i
VanKoiighnet, C, and Spragge, ^^ ('
ground that, though the corporatinii i
on the covenant to pay, they could iidt disti
Scnu/i/ V. Corjwration of tlw Cili) af l.nndvi
Q. B. 457.
Where the lease contained no pmvisKPii ;
assessed .against him, and therefore could not j the taxes : — Held, that the landlur
replevy the goods which had been seized.
Carmlfv. (I «//{•;«.•( ft al., 19 ti. B. 248.
^l<•-
An ordinary leaise under the Short Forms Act,
them. JJoir v. J)oir, 18 C. I'. 424.
Defend.ant, in 1872, (the day and iiiontli
being given) leascil a farm from the iil.iiiiiit
containing the wonls, "and to pay taxes," covers a year from the 27th September, I87-, '""l'
r. , ■ 2008
eated by a curiioratiou ny-lnw,
tliur taxes. //' '''■ Mi'-lih- .,„,;
;/' //('' CitlJ 'if' Tlil-imti,, 1 1 ('. [>.
ik a written agreeimnt fi.r a
)reiiii»es, which was silent as to
en it wan sij,'iie(l he verlKilly
ixes. No lease was ever exefu-
(lisai^reenieiit mi aiidtlier pnint.
[ueilthe premises for f.iur ye;ir:<,
• three years withmit olije^utiun,
I for rent which suhs-cimiitly
meil t(i set ofl' such taxes m the
the agreement made no iiri.vi>i.iii
ouhl not he aihled to liy vt'ii.iil
nnist fall niHin the laiidldnl ;—
viu" made the ]iayn]eiit vnluii-
tnee of his own agreement, ivtii
lont consideration, he cduM udt
set oil' such payment. .U'',l».n,;y
I. B. 4i)'J.
upiod a house for some six \\:iis',
eriodhepaid his laudloi'.l's tiixcs:
he could not deduct the tiixus
last (juarter's rent niidcv tiic'JCith
?ses.sment Act, although tluTi'was
as to payment of taxes lictwKii
iidhird. If"'/'' V. Tlioiiii>!"iii,>^l.
-Leggatt.
ssees against lessor for an evittimi.
c plaintilfs hy lease cnviiiaiituil
ihl during tlie term pay all t:ixw,
lon-fuliilmeut of their cdvoiiaiits,
II, should operate as a forfeitiuvf
and that the same shoulil In- om-
and void : that during tlie tiniil
rt-ere imposed on the laud, iinnii'.iit-
or munieipal, and S!*.,").") fur sili(«il|
18(53, which the ]ilaintirt's diil Mt
the same were <lnly ileiiminlnl,!
no distress on the land ; and sinlJ
h 18()4, were returned hy tht o'l-f
e on non-resident lands, wlKaliyl
and the term heeame forliituil,iii(l|
e defendant afterwards |R':ii-'w''ly
heeame possessed as in his rirsi
i\, on demurrer, that the vlea \n
lat the taxes heeame due whm k\
plaintitt's had not the wlmlf tirii
in ; and that it was uimucessaiv t|
requisite to shew a valid I'liti', thert
mction in this resiieet liutwMii ?'
a justilieation. Tai/lnf \: Jn-mn^
•20G'J
ming the judgment of tlu'
land owned hy a city, hut
mint for his own private
o taxation, and that the cor
liii for such taxes. Men-
ground that the laud was iii
et, C, and Spragge, V. t'.
, though the corporatism n
lant to pay, they could mit
)rpomfton of tlf Vila "J !■'•
Ijll'.iOIll
(.-asi-.i IJ
,111-1
I'liiii-anil
isipii.
>t\mi
, 111! ti
light 4
(hstnil
lui'ni, i
e lease contained no prnvisicn ssj
-Held, that the laudlonl sh<mMr
•e V. Dore, 18 C. V. 4l24.
t, in 1872, (the day au.l m^tli i
) leased a farm from the vhmM ]
the 27th September, 187-', .I'l'l'
iiaiited l)v the lejisc f.. ..„ i
••all taxei rater ' '" 1^ '''"•'"« *''« «'",! term
fver, whether parlianie.'iKrr""'""' ■ * ^''"'t**"-
wise, which nj,w!::,r;"^i 'r'y^'i'''' ''■;''"'"■-
tmi"u.ce of the sai.l terin '»",'"« ^''^ ^""-
time he rate.l, charged, assess..,! •"" "'^ '"'^
reject of the .sai.l pre. i;l .•?St/"' ""^"""'^ '''
.-..entry for hreaeh , f e.. '1 .l.t- u' }?"'"*" f'"'
I. .liss., that defe,,, -t J. ;"'*■■'•■, f.'^"'''- ^\'''«"".
te, aint,.f:,W that the i'/^rX!'
winch now are, ref.'.-.-,..l t *i . • '-^tcs, f;c.,
f"fti.etax\i™, :;4;;;,J-''--cw
tkw,.r,ls, "or which sl,..I t'^ ^'l*-' ''""'• ■•""' '
ai.y ntherkin.l of UxJ:';S^;"'>; >'''^7 ■'*-•■ tn
unpaid. J/. ^ ''''^^^ ^'"^ ^'y
./, ' / V. I>. 40,), u. -JQ',
I^AXDLORD AN,) TENANT.
-'070
>l
•I'lus years
^f'-KlSr"L.i;^;S!:'r'..-ena,^
to 'uake certain s,,eei ! ,v • ''^'"^^ 'l<-l'«'n.lant
was .locl,,re.I t.. he .m tl . n ''""'' '""' t''^' '^■•'v^e
^'•''"'.tho .1,;^. ..( I "'',""'"■ "''''."'tlieyear
.'"t^v'tl.stan.ling the w., .', . ^''"" ' 'f^''''- that
\7" "'d cnvena^it 1 " ' „ ,7''"l'otent," th. ,,„.
'" an acti.m .m ;■ i,,.,„,. ,,
'■'II') fi,r rent •m.l ,, ( '•ivin.,^ ,„,„ ,
:''^l'^thatSj";:c;;;K;'^'"'''^^''''^"---
; ;'f }^f^ wa.s n..t resf .t..l ? "'"" "' ^'"^ '^■"«th
! '»;t the ,„oasure of /. , ",''' ""■''""•'' ''••""a^es.
"Inch the n.vcrsi.,,, ^'mW .^T ,'''^^"""""^ t,
••ei«.. -///v.^o.v.^:^"r ,''];^;--"tof
t.>
l^tiiftenn to repair the .,1, , ^'.""""■'"-''-'"'fnt
|l).e«- warehouse ; a ..I the -.."""r' '""' '""''1
l^wilingly at th ■ .1 . .a,^',? ,",""';*■" ''"*«''-'-l
Itk-apHlant ha.l e..i , fe^','' .r"' I'"* '"^'•'"•e '
Ireiiaii-san.l hef.,re the /ease w "'''"'« •'^"''
Imsmm after .lestrovcl tL . '•'■:'''^'"t^''l> an.l '
l« weal t.. the pHv^e u 'VXm'" ^ .,"^'''' '
i»nof the executive c,mS : f '""fe; *'"-' '1--
Ik respou.lents were iZ } "V:''"'"'''' ^''''t
Itoand rehuil.i the Kt l '". *" '-■■:''-''-'"*«^ ■''
Ippellantimt having e.., oletL; ^ ■ '"''-'""^'-■^ the
llat till such c,,mK,mtlw .'"''*' •'^■*' ""<'
I Mwu P. (• S-i " "' "'■' ' <»■ N. 21' ■
;-thall/hi,;'''i -;-M'rendscss,./,,,,i^^^
;"• ••1-" the prcnit ' tSe""'*'"":^'^^"I'i»
tL'rm peaeeahlv t., vi,.! i i'M"'-ati,,i, ,,t tho
t)'^HiturestL'.S,:4-'l'-'"-uUi,.:,£^
■■ *'"," ■■'■'* the .same We,l ■ " f' '" '"' -"•"! ^-•■di-
f"''^'"t"re : HeM t^^.l' *"-' '-■■^■ffuti.,,, of the
: ",'« "" blocks .,;,,'''':'" f"/' '"'ilding reS^
'^'■r- to a Imihlin,, 'es -; ' ' '^* '"f" tl'e gr,,,, ,
'^t int.. the gn.un.l, ,a I, » T'^ "''' l"'-^ts not
iTT:T,5-.t''et;i,j;:'-;'c.sv'^!^^
lAlesseeeoveuanted to buihl.,,, fi.„ , ■
h«ses .luring the ten,, V. "".tl'e .leniised
W'tisthe true uten .;„,! /;,''"'"'"' •'^'"'•''.V-S
Vit., au.l the parties tie ... ?/""!>' '•' ^'^'^
tl«ti<in of the dense "*,";• *''"^ "■** *''«
1 l«,,ai.l forat t iie ta at ;"''''y'^''^ ^■'''^^•ted
. «">" expe.,.Ie.l. T.. ,■! ij , ' '/ '''"' ■^•"-- '".■ the
: ' V"<!''ey thus spe.it, . le,' ; . 1 T "r"-l'".v.ne..t
I 'l'lap..lation, s./ .-e, aire.V '''''■■"''''' ^''''t the
, Ida.ntifr wilfuliv in K y"^' ™"«^''I by the
'";•"• "f the ,;St,a;S"i:ef '■''""! ■" '''-.£
}"-- '''"f -nstu^b'u^^t^:::^-'-'^^
^ ^'1'1> <-.. .ie,au,Te.., .,, .Vefe,". •^ /H" '^"'^^ •—
1 tlie h.,use or tave,->, , , i ' ", ''"^t "f repairin.r
|tlK.e..tsof;;S- J- l-ayth
sai.l reiia I's a.i.l ,...*■ "^"^»-^ a... 1 .rates tl„.
f-..la..t'at th e .r,^^'S'",*" '" I"^"' '"• '5 -
''^.';r: 't then ave „e. ^h'.if ?i'-''"- "' ^''^^aid
2'7' tl'e h.-st year 1 ;Sai^'- l'Ji'i''ti« di.l
I tlie fe.ices an.l ,,.,tp„ ./ '^P^'' the hou.se ami
ftter .le.namlan.fva^uir""" *''-'^* 'iffem a t
j lialf of the costs .f ,'■!'" '■'-'f"-'^*-.! to pay „ ,
->->-.fthet^,;i;;i;:-j^^'ei'.n,se.!u;:i7l^
'gates, ami t.. allow t. H, . •" *'"^ ^'•'"^es ami
J I'.e defendant plea,le^th A , ^^ "' ^'"^ ''^"t.
pa"- .1. the lease was 1 foM ^■■'^'^"■•"it t.. .-e-
that he, the
*-"'.'o.i,,,..,e^1.;;i;;;^-f^^i-t,.ep..e
. Irqiana.i.I keei, re.nirp ■!*'^'7' *e.,aml
|«Mlien ereete,!, ,r th ,T, 'f ^''^'^s a.i.l
r*a,i,l ad.liti.,, s it w * '".'•^ ""l"'"^-e-
hl l-epai.l for hel'tf.r'"' J '"* "" ''"'t -
I tlie lissee was ,,o ..II ",'?'"'^ •■ ~H«J''. '
tf »"t .ithi.. the n^e ," fe' *" .J'*^''^"''"' ''i« '
|/;^"'lQ'.a.-e, ^vhe her e ,m/rr'' ^'"■"
ptMiu t.i.lothe w.n-l. «''""Id have the
K'Ue tiu.e.twi^l ";.";"«* 'I" it withi.i
t'a-'tforrent T'^'^-^^-
fH'sin the lease ,„ ' ' J""'' I'e'-fornied
'I'l'^' 'lam an.l ,, ce V, ' 1' i'^'""*'^' P«'-
h"-. that the ^:,i^--;tain^^
«a., lessee, his, &e., wi 1 at the . . *'"'^ ''^^ the
2071
LANDLORD AND TENANT.
ii
'Mr
the tiniil preiiii.MUH, and the said lessor finding or
allowing onc-h»lt of thu exiienacs of repairing
tlie houae. ' " Tlio lussou to ruiKiir fences,
tlie amount to l)e valued and to lie jiaid by the
lessor at the end of tlie tirst year of the term, the
rails to be taken otl' the premises if possible."
To this the plaintiti' demurred ; and replied that
the meining of tlie lease was, tluit both the re-
j)airs to the liouse and repairs to the fence were
to 1)0 paid for by tlie lessor : — Held, that on the
pleadings as set out, defeinlaiit was bound to pay
half the repairs of the house anil all the repairs
of the t^ates and fences. (.i)ua're, as to the mode
in which tiie eti'ect of a written instrument is to
be brought before the court for their decision.
jVi//,r V. Kiii-ihi/, U C. v. 188.
Trespass for entering iilaintitV's close. I'lea,
justifying under a lease front defendant to plain-
till', by which plaintill' covenanted to keep a
certain fence in rejiair, and alleging that by
reason of his default defendant's cattle strayed
on to plaintiti 's land. Kll'ect of removal of fence ;
by plaintill', with defendant's consent ov direc-
tions. I'h-knnl V. WUuii, •_'4 Q. B. 41(). ■
Plaintitr sued defendant for taking his cattle.
Plea, justifying as hn- distress damage feasant on
<lcfendant's land. Replication, that the plaintitf
demised to defendant the land mentioned in the
plea, reserving a right of way along the west side
thereof ; and the alleged tres[)ass was the u.se '•
of such way. Rejoinder, that the trespass was
beyond the right of way. Surrejoinder, that at
the time of the lease there was a fence along the
east side of the way, to jirevcnt horses, itc,
straying therefrom : that defendant covenanted
by the lease to keep such fence in repair, but
removed it, whereby the plaintill 's horses strayed
from tin w ay upon (lefen<lant's land. Rebutter,
that the lease contained covenants allowing the
plaintill' to enter on the land, and view the state
of repair, and that defendant would repair ac-
cording to notice : that the plaintill' directed the
<lefendant to remove the fence along the east
side of the way, and use the rails for other pur- \
poses, which the defendant with the plaint'tf's ;
assistance, and as the act of the plaintill', accord-
ingly did ; and this is the removal referred to in ^
the surrejoinder ; -Hehl, that upon the evidence
set out, the jury were justified in Hnding the
rebutter provetl by defendant, whether it was a
good answer in law to the surrejoinder not being
a (piestion for them. The jury were directed,
that if the removal of the fence was the plaintitl's
act, he was b<iund, having thus thrown open tlio i
way, so to use his right over it as not to injure
the defendant's land. Senible, that the nueBtion ,
of plaintifi's duty in this respect was not really ■
raised by the pleadings, but that the charge was
correct. Wixun v. I'lckunl, 25 (j. B. ;107.
In a lease for years of premises niadetoG.,
and assigned by (i., as to the residue of the term,
to defendants, w.as contained, after the usual i
covenant to yield up the same in good repair, a ;
proviso, that nothing therein contained should in ;
any way ccunpel the said (}. to give up the build- ;
ings at rlie expiration thereof, which are all wood- '
en and linljle to decay, in as sound and good a state !
as they then were ; "but such buildings are not i
to be wilfully or negligentlj' wasted or destroyed ; I
necessary repairs, however, for the preservation i
of the said Iniildings to be done and performed i
Ly the said 0. at his own proper cost and charge :" ;
I — Held, that these words constituted at
M'hich covenant ran with the land and b
Assignees of the lease, thiuigh (immj/hs •
expressly mentioned. ?leld, also, that I
, was not entitled to delay repairing unti
' of the term ; but that such repairs wi
made as were necess iry to prevent the I
going to destruction, and the niomeiit
cessitj' existed and the tenant failed t
the covenant was broken. I'lirij el n.i .
<•/ r/ii,<r('itii(ti/(i, 1(J(". 1'. 404. "
The evidence shewed that the jireii
been allowed to go to decay for want (
sary repairs ; that up to and about the
left them they were in <lefendant's pn
proper repairs had not been made ; Ij
dence for the jury of a breach of cdvt
defendants whilst owners of the lease,
the plaintitl's were not bound to givecx|
dence of the actual state of the prenii.s
the lease was tirst made. Jh.
Marriot r. Cotton, 2 t!. & K. '>'t'A, ref(
distinguished, and doubted. Review nf
authorities as to injuries to the revcrs
time of bringing the action therefor,
measure of damages, //i.
In an actiini by lessor against lessee m
nant to repair fences, on or before a curt,
— field, I. That such a covenant was 111
tinning covenant, and damages must tl
be assessed once for all ; 2. 'I'lie proper]
of damages in such a ease is the amount li
the beneficial occupation of the pninisc:
the term is lessened. (,'(ilt'V. Jlurk/i', \HV
Whether the cost of rep.iiring would a
correct method of estimating tlie d.uiia"
depend upon the circumstances of eacli A
Seinble, if the cost of repairing Wdiil
large a>' to be (Uit of proportion to tiie
interest m the premises, he would not l|
tied in repairing and treating tlie cn.sts
repairs as his damages. //*.
Defendant demised to iilaintilf a vl
wharf, covenanting, generally, to ]nit til
into good and sutlicient repair on (Hi
given day. The condition of the wlniil'l
cussed between the parties, and ,i iiiiiiil
was drawn up by defendant and siyiad
" \V<u'k to Ije completed to put wliaif il
repair ; two stringers, and one stringer |
into place ; all that part of wharf initpf
be planked with new plank, and all till
plank or holes to be repaired with .siiini(|
Flaintitt' signed this memoranduni litl'iirl
ing the wharf, and on defendant's ivpR'
that it was all right. These repairs won |
but about .'I month afterwards the wlial
caused, apparently, by the defective st|
caps on which the stringers rested
no clear evidence of an agreement ,'i.-i tj
citied amount of repairs being t;ikcn ^\
formance of the covenant in the lu.isJ
that the memoranduni did not c(intnil|
the covenant, ami that the iilaiiititl' w.i
to recover for the damage sustaiiieil liyl
not having been put into good rcjiair.
Beiin/, 21 C. P. 473.
A covenant in a lease that tlic 1
"take proper care of the fruit treJ
facie only applies to the trees plaiitwll
2072-
(, (lel.iy 1^1 ......ivivH wi'H- til 1«
,cs^>vy to \ 1 ^ ,„ai I,..
''V";,'l te vut faikatovoiuir,!
', IGC. I'. 4«-*-
.,1 that the vi'^'>"'*'='' '>»'M
'^'^"^ aetcu.\ant's im^Ht«>..„,
^073
LANDLORD AND TENANT.
oil the prciiiiHCS iit tlie time tlic le.i»e is
ixi'ciitt'il :- -Seiiihlu, tliat it would not iitijily to
"a VL'i'lpal Ji;;
ij,'ree-
liufoie
■vs'ci-c 111
1
laiU'.
lkM,.vi.|
nut livl
1 tliitl
Suviltllc .^ the l-veiu.. .1.
!()tton, -^, • 'i ijevicw lit' V.u
' action thei-cfcir, :m.l tl,
trew iilantc'il by the lewsor uiiiler
nieiit suhae(iueiit to the exeeiitioii.
the U'ii*''! wiVH executed it liad been ex))resHly
aiTet'il tliat the trees to l)e afterHiinls jdauted
liv the lessor bIiouIiI he iiudmled in the cove-
nant, and niMin that nnderstandiug they were
iilauti'd : Seiiihle, that the covenant inij,dit he
iolil to ajijdy to them ; hut that sueh agree-
ment iiuist he established l)y the lessor by nn-
ilniiliti'd testimony. Vnizhr v. TaliU il ul, '2ii
['. I'. ;<(!!».
liv 11 lease of iiroperty in the town of London,
tlip lessor agreed to erect the outside of a frame
liiiijiliiig, and bound himself, in ease of its being
liesti'iived by lire, to rebuild to the same extent,
(iriu liofault the rent reserved to cease. After-
miiis the house was burnt down, and in the
interval the municii)id council had by by-law
See Whiihr v. Sliiiert ul., 3(,). !'., 143, y.
Millmhif v. Ihiil, 4 (,». 15. 4L'."., ji. •.'0.->7
Dniiijall V. /{iiliiiit il III., \) if. H. '.':«t, 11.
J)<ir,:/ V. /,- /r;.v, 18 Q. H. 21, 11. '.'OTH.
•-•o:.7 :
: .\fr-
X\'III. I'oMrKSSATIiiN lOK I.MI'HOVKMKNTM.
Aelll
(if V.wM
A. and H. being ]iartncrs, A. alone verlially
leased certain iireniiscs for a (il.ice of business,
for live years, at a given rent. .\. ami H. went
into jiossession. .-V memorandum fur a lease was
lueparcd by A., but never signed by the lessur.
It w;is veilially agreed lietween the lessor ami
A., that A. should erect a gr.inary, &c., un the
lU'emises, the lessor to fiiinisli tiie lumber and
liay for the imiirovements at tliceiid of the term.
The liimbcM- was furnished and tlie buildings
erected with partnership funds. In the mean-
time the lessor ran an account at the store for
goods. A. and li. afterwards dissolved, and H.
iroliiliited the erection of frame buihlings in that released and assigned to A. all iiis right to debts,
.i»alitv. The lessee refii.scd to pay rent until itc. A. then took ('. into iiartnershi)i, witli
llie lesser re-lmilt, and the lessor then tiled a bill ', whom the lessor settled the account for the goods
[tiuiuicel the lease, as it hail become impo.ssible by allowing an alleged set-oil'. A. afterwards
light an action against his lessor for the yoods
iuiunes
,i„g the
to
auuvges.
//..
.. niriinst leasee on iu(iv«
'\^'y^''lm "foreacert.inllay
•^•^^'hac venantwa..uit:u.»j
I'hat such a CO ^_^^^^^ ^j^^,.^, j
«"'"^y".V--"TheVVo,iei-m.«j
once tor au , _ ,^_ ^,__^ nniouutlivwlm^
in sueh a easel. ,^,,„i,,, ,limi
ipsseneil. i-"" ., , ,
, wouliliil'"'*!
f eacli e;ise.
lessenei
'the circumstances ot
at- of repairing ^v">'W>lel
"«■'"">«"•■ ,;„1,
,ut the wll
, . 1 to nlaintitV a v
tut demised to 1 ,
tenanting,. g.""'-;''."*;, ,„
Itweeii tlie vartie.. ami
m (iv iiel^'l
\',u-( was 1
uieuiiirauill
,,ll,vl/
led with new pia.-. ;.■ a, .otuul vN
th.destoberei.u^ ,,^f,,^^
Lgiiedthism '>:_^,^.,,,,,,,i..e»«
Iharf, »'V\ "ViC-e repairs weveeNe.
Wjarentiy. "y ■ '
Eichthestnngei
levidence ot
state e
iierel
a vested.
^"' „...ut astoaml
agveeineiii •<■ u
'LhK' taken as '.ul
wmnt of vera"^«^^»> the lease '.^^
' memoranduni dnl . ,, ^,.,, „-
nant,amltlKttliM ^^^_^^.^j,,^.,l,ef
.vforthcdanuvges ^^^^,
ling been put into „
lliirliim to carry out his agreement. The court
litfusetl this relief ; but on a submission in the
linsner, directed a reference to the niastei' to lix
Ijmfer rent to lie i)aid up<in the lessor rebuild-
witli lirick, with costs to be paiil by the
blaintitl'. \\'illU(iii.f v. Ti/ii.i, 4 Cliy. ."):«.
.\ lessor demised property for a term of years,
luitli a stipulation that the lessee would not
irrv "111 aiiy business that would atl'ect the
Jnsiii'ani;e. The lessee made an under-lease,
linitting any such stiimlation, and the under-
lessee ediiiiiieuced the business <if rectifying high
rincs. rpon a bill tiled by the lessor against
lie lessee :uid his lessee, the court restrained the
krtiesfiiim continuing to rectify high wines or
jirrvim any other business that would interfere
laiiv way with the insurance. Arimlil v.
I'/ii/f, j C'liy. 37 1 •
iHueiif the conditions of a lease was that the
Isste (the defendant) should erect a liarn of cer-
linsiieeiticd dimensions, and the lanil whereon
[was til he erected was mentioned, but the
Bse was silent as to the exact location or site
Itlieluiii. The lessee eommenced to erect a
m nil a site with which the lessor was dis-
jtiilieil, who thereupon tiled a bill, alleging
■tsiieliasite was unsuitable, and that it had
jtii selected by the defendant from improjier
itives: tliat another site had been agreed on
lueentheiii, and that the buihling itself was
Utyiiiits construction; and prayed an in-
■ctiim restraining the defendant from allowini'
J km til remain in its present position; and
lanieiiilmeiit sought to enfiu-ee specitic perfor-
(iceiif the contract. The evidence failed to
lUish the material allegations of the original
of the lease
iidiiglitan action against his lessor tor tne
sold and the value of the granary, &c. •.— Held,
, 1. that H. should have joined in such an action;
■J. That the settlement with ('. was not bonil
tide as against A. ; H. That no lease having been
executed, upon the facts, A. was a tenant at
; will, and that it might be orally agreed that ho
should make improvements and lie paid fortlieni,
and that plaintitl' might sue for them in his own
name though built with partnership funds,
(^hnere, shoulil the action be for work, labour,
and materials, or upon the special agreement.
livamjlnim v. Jial/oiu; ,S('. P. 7-'.
One K. was left in charge of the estate of N.
who pro i.ised to leave tlie same by ^^ ill to K.
N. afterwards left this country, and died abruail
intestate, and K. acting on the presumption tliat
j N. had dieil without heirs, made , a building lease
i in his own name of a ]Mirtion of the estate, and
the lessee entered into possession and erecteil
buildings thereon. Afterwards the heir of N.
established his rigiit to the estate as such, and
refused to reeogni/.e the validity of the lease ;
whereupon a bill was filed seeking to bind the
heir with this lease, or that he should jiay the
value of the iinproveiiients on the ground of a
ratiticatioii of the lease. The court refused to
grant either branch of relief asked, and the fact
that the heir had instituted proceedings in this
court against the lessor, calling upon him for au
account of the rents, &e., received by him from
the estate of the intestate, was not such a pro-
ceeding as could properh" be considered a ratirt-
} cation of IC. 's acts. Mujj'utt v. A'«7/o//, }( Chy.
; 44(;.
The guardian of an infant, tenant for life,
, without the sanction of the court, executed :i
; lease for years, during the existence of which
-Held, (I) That by the terms
[lilaiiitiff had not the right of selecting the
of the harii ; (•-') that it was not a proper the nifan^t died, and an application^ having been
I for ilecieeing siieeitie performance, or to
|nl ilauiages in lieu thereof ; but that the
lititf must be left to liis remedy at law.
\M^ \ H'mmons, 15 Ohy. SOU.
made in the cause for an order on the tenant to
deliver up possession, he was ordered to do so,
and on payment into court of the amount of
rent in arrear, he M'as permitted to remove the
buildings and erections put by him on the pro-
perty, (doing no damage to the realty), but the
court refused to allow him out tif such rents for,
lease
that the
Ivenaut m a »--- - ^ ^^ trees,
lelil, that the decree in the previous suit was
lar to a siibseiiuent suit by the tenant for a
Btic ptrfoniiauce of the agreement for a lease, i any improvements made by him upon the pre-
poMv. Vampbtll, 17 Chy. 612. mises. Tuwimley v. S^eil, 10 Chy. 72.
rill:
Xrx. ('lioi's AMI Kmhi.kmk.nt.s.
Ill trover tor iiii iiwiiy-gojiij,' cron, wliii;li the
]ilaiiitilJ' LVJiittriiili.il 111' was ciititli'il ti> uinlcr .1
oiivL'iiaiit ill his lea.so, " that liu sliimiil lint now
fall uraiii in all fields ikiw eleareil in the lir.st or
last year ul' tiie lease," on i)r<iviiin that he hail
not sdwii tile yiaiii ill all the tiehls, the eourt
lielil tlie H'onl ('// must i)e eoiistriieil kh//; that
the lease, tiieret'ore, iliil not militate against the
eiiinnion law rule ; ami that the ]ilaiiitill' was
jirecliiileil troni elaiminj^ the awaygoiiij; eroii.
<• V. I.<,fhh,t,-t, II. 'J'. () Viet.
In trover foi- wiieat reaped and elaimed liy the
defendants, as of right lieloiigiug to them as an
away-,:;rowing ero|) after the expiration of a
lease' for seven ye;irs, the jilaiiitifl "s witnesses
jiroved a new lease in writing of the jiremises to
.1 third party, from the exjiiratiou of the defen-
dant's lease, hut the new tenant swore that he
liad no right to the wlieat : Held, that it was
not neeessary for the plaintill' to produee the
new lease. JSiirmiris v. di'inis i-t nl. '2 (). H. '2HH.
Where there is a stipulation in a lease for a
term eertain that the le.ssee shall deliver up all
the lands at the ex|iiration of the lease, all ques-
tioii as ti> eiistomary right to the away -going erop
is e.xeluded ; ami Semlile, that there is no eustoni
of the eountry as to away-going erops in I'pper
Canaila. //<.
M. in the spring of IS.Vi agreed hy parol witli
A. to work his farm on shares, and put in a erop
of rye. In Deeeiidier, 1K.")2, \. entered into a
■written agreement with ( 1. to rent the farm to
liini for three years ; and in January, 18,"»,'}, A.
<lied leaving a will. M. in \H'i3, with the assent
of O., reapeil the erop whieh he had sown in the
previous yeai' : Held, that the share of siieh erop
to whieh A. would have heeu entitled must go
to the devisee of the land, and not to the execu-
tors. TiihltKX. Mun/dii, 12 Q. K. l.')l.
In a three years' lease, the wonls, "also to
allow the said W. and .1. X. (tenants) the right
of leaving in fall erop the same <piantity of land
as is now in fall crop when they get possession,"
coupled with the faet that there was then a fall
crop on part of the land, whieh had heen sown
l)y the preceding tenant, and whieh he was oii-
titleil to reaji, were — Held to confer on the ten-
ants the right to sow ;i croji during the tenancy,
which they might reap afterwards. C(ii)ijil»:/l v.
Jiiir/iitniin, 7 C. 1'. 17!).
When a sheriff, acting in good faith for all
concerneil, .agreed to pay for having grain
thrashed for the piirpo.se of its better sale, the
expenses of such thrashing shoiihl he allowed
him. iltilhmilh v. Fortune, 10 C. 1'. 10!).
Plaintiff by deed leased land from one S. for five
years from the 1st October, ISIi'J, agreeing there-
by to give up possession on the expiration of the
term. On the lease was endorsecl an unsigned
niemorandum, that if plaintiff cleared any iuf)rc
land, he was to have the same rent free for the
first three yeai-s. No land was cleared by plain-
tiff until the fall of 18()'> ; and in the f;
18(17, he jiut ill a crop of wheat, .\fttr tin
|iiration of his term, S. permitted him to n.|
on the premises, and in the following .\|,r|
left, giving lip to S. the place with all on it,
June following, S., by deed, lea.scil the |
and crops thereon, to two of the defendant
live years from the 7tli ilanuary lireviniHlv,
i subsenuently, \( hen the wheat hailiipiiK d, li
tiff entered tijioii the land, then in diti||,|
possession iiiKler S. , and cut the erops. I lit
aiits took possession of the wlieat in shocks di
land, and the plaintiff brought tmver ; \
that the memorandum could not ojierate sn ;
transfer to plaintiff the right of ciitcriii.,' in
on the possession of defenilants, and t.ikiii;
cro|is in the ground, the proiicrty in wliiih
]passed to them under the lease frnm S.,
which, moreover, the evidence shewed pliii
had before this exjire.ssly siirrendeied, witl
land, to S. ; iHir on the authority nf I'lim-,
V. Cairns et al., 2 <^ H. "JHS, could the pl.ii
claim, as an outgoing tenant, the wheat, 1
way-going ero]), ami that he was nut, theicl
entitled to recover against defendants A'
v. Wh'iti' it ul., 1!M'. r. -Mi.
I The leasees covenanted " to take proper
of the fruit trees." There were fruit tivts 1
on the demised premises : Held, that tlm 1
j naiit iliil not extend to additional fniit t
! planted afterwards //.'/ Ihi' lirtmir, with the as
1 of the lessees. ( 'nr.Ur v. 'J'alili rt k/., ;{,s (}. |i.
j See Miiitiiii V. Scalt, ' ('. I'. 4,S|, p. 'jy
(Join/iliill V. /lii.iiir, 1,") ('. 1'. 42, p. I'OHd.
X.\. ('oNTHAcrs ACAINsr AsslONMKNT.
Proviso for re-entry if the lessee "do, ors]
at any time or times during the contiiinaik
the said term, let, set, lU' assign over the
seiits, or the term, estate or premises
granted, or otherwise part with his
therein or thereto to any jier.soiior persons
soever," without the lessor's consent in \v
The lessee, on leaving the country fur a
rented the premises to one .1., who was
out when reipiired ; Held, no f<irfeitiiic,
v. Fi.i/:iit, 12 Q. K aU.
In ejectment for breach of covenant
assign without license against the a.s.siiinte
lessee, the plaintiff's verbal assent to the
ment before defendaut entered into pii.ssts«i
no defence. Carter v. JliUiletliirmk, oC
No notice or demand is necessary hefnie
upon a forfeiture, where there is a [mw
entry in the lease upon breach of a cuvi'ii;
repair or not to under-let. Council v. I'mt
('. P. !M.
A cojiy of ail under-lease between ilefi
ami his under-tenant was proved in cv
upon notice given to produce the nrifjiii;
Held, admissible, as again.st the iiinlertei
he having admitted it was a copy, and no
sioii having Ijeen taken to it at the trial
v. I\„i',-r, 13 C. P. 91.
The lessees under a lea.se coiitainini;,!
naut not to assign without leave, in thustati
form, made a voluntary aasigmuent in iiisdl
on the 17th May, 180!). The assignee .wl
stock-in-trade of the insolvents, wlin were
goods niercliaiits, and the purchaser tudkjKi
niti'
rit
r„
2070 ^ 2077
f 18(i5 ; !viul ill till' fiiU iif
'.f wheat. AH': tloMx-
S lu-niiitt'J'num tniviiuin
X in the f..ll..wi';^ Avnl, 1„.
\,V .lee'l, Icasea t hv l;m,U
t„ tw.. "f t»"= 'i>'f';'"'''"t^ '•"•
7th .liuiuary l.rfvioMsly, iiu.l
,t\,ewlicathiuliil»ma,v:m,.
U,o laiul. t\icii in .Ut.i. ;i.,U
,1,1.1 .nit the ui-oi... lMe..l.
;;„f the wheat 111 slin.k..mt„.
„titV hn.u«ht tn.v.i- •. 11.1 ,
,f .lefe.ula-.it«.;V".'t t.kn ;; 1„:
1,„- the lease Irom >•. ^»'l
'•^U^Ulleuee sUewM ^^^M
;x,.-eH.lv«.>'-rei..W.v.l w,tl,tl.
, the aiith..iity ..t l'.unnw,.i
," ) l\ "SS, cml.l tl... l.U.utill
:,„'ii,i; 'tenant, the wlu-.U, .s ;i
a Uhathewasn.-t. tluao.,.v
;' ;\5vi.ist .leton.lant.. A.mC i
,(, ('. r. :<•'•
v,.i,iute.l "to take yr^Y^r rm
''" There were fniitt.VL.sth,u
'^'■.....nises : Hel.l, that tli.^ .'..u. 1
^T. . to mhlitini.al fruit t,™ I
'''u /?.-•-,,,•, with ilR'.iss.,a
„,„,..tsauainstAss..;nmknt.
nntvv if the lessee " '1", ""^1
^•^:::s\uvii.g the -;;t-;-;; I
term, .^^^'^^ , ^. t,, uis iut,.r..tl
brHoSnofoifeitiive. ^J
,Ht for ^>ve!vch of cveinnt untt
^rii.eiscaKaiusttheas».K.>ee"tt^
r fitrrverhal assent t.. tlieH
kiiititt s \\\ J i„to v«*^>si»M
l.,,,eniaiidis«ec^ryhef,«H
.iture, ^vhere hu l^,^_^^
t^Eer'^O «v./'..J
I „ nn.lev-lease hctweeu .U'feijlai
I fill Ull'l^* '^ 1 in cVlueuB
L uu.ler a 1-- -'iSS^
tea htrS:d
l.ANDLOHl) AND TENANT.
'J078
ijoii i>f tiie iiroinlHcs from lijin oii tlie 'JTtii May,
tilt iiH^iKiiee also oeeiipying a room there f.ir the
liuiim^jeincnt .)f tlie estate : Hel.l, a hreaili of
tl;o .•..veiiaiit anil a forfeiture, for the term passe. 1
t(i tlie assiK'nee, iiii.ler the Insolvent Aet, an. I if i
hi* eli'ftion t.i a(i'ei)t it w.'re iieeess;iry it was I
(lifWM I'V hi.s i.'.iM.lint. Miiiiic V. Hndhiii, '20 I
y. 11. ■-•.")7. ' !
Ill a lease there was no ex)ircss |ir.)viso f.ir rc-
cntiy, hut the lease \\;.s state.l to lie mn.l.'
"siiiijett to till' r.ill.iw inj; stiinilatii.ns." 'I'hi n
f.ill.iwi'.l a niinilier of elanses, one .if wliieh was
tliiit the le>s.'e sli.iulil not iissit;ii th.' l.'a.se with-
mit the c.inseiit in writinj; .if the lessur : llelil,
tliiit till' «onls '•siiliji'.'t," i^'.'., ha.l not the etr.'i't
111 niiiliiii^' th.' siu'. •.'.'. lini; .'laiises eoiiilitioiis, so
as t" cause a forfeituri' ami I'lj^ht of entry for
tiK'irliivai'h ; ami therefore that ejeetmeiit woulil
iiiit lie for as.si,L,'iiiii;,' th.' lease with.iut the eonsent ■
iif the lessor. Mfliiln.<li\il iil, v. Suiiia, L'4 ( '.
1'. MS.
A li'fise. (lateit 1:<t .Inly, IS(i8, iiurimrteil to
K'liiaiie '• in liursminee of an Aet to faeilitate
tht l.'asing of lamls ami t.'iieinents," tint iiro-
wr title of the statute then in foree, ('. S. I'. ('.
t, K, lieinji " An A.'t re.-iiieetini^ short foniis of
jf.isi's, " ami it eontailieil the following,' eoveiiant :
"Aiiil the saiil lessee, yiic li'iiiini/f\ /"•" lnir.i, err- i
t\ll'l|■.^, iiiliiiiiiiKlriilnrx, mill ii.iniiiii.1, liinlii/ cove-
naiit-i with the saiil lessor, liis luirn mul ((.i.v/r/;;.x,
tiiii:iy rent •iiul to jiay taxes, ami will not assign
wsiiiilft without leave." 'I'lieii fiillowe.l " I'ro-
rijii fur r.'-eiiteriiiL; liy the saiil lessor on iioii-
uifiirinanee of eoveiiants, or seizureor f.irfititure
.if tilt' term f.ir any .if the eaus.'s aforesai.I."
I TliililiiiiitiU's, as assignees of the lessor, lirought
eji'itinciit, .■lainiing t.i re-enter for hreaeli of the
ciivi'Uiint not to assign, hy reason of an assigii-
Inifiitiif the lease maile li\- the aitniinistratrix of
I till' lessee : Helil, that the iiioviso for re-entry
laiiplieil .Hily to the n.in-jierformam'e of jmsitive,
I nut negative, covenants, ami that there wan '
Itk'refiireuii right of re-entry here Ln' it tiL v.
hm'h, 37 Q. li. '2(i± ]
tho covenant, nml that the )ilaintilT was entitleil
to recover in ejectment. Iliii'mi y. Ciiiii/ilii/l tl
III., (I \\. \[. T. IH77. Not yet reiiorte.l.
The iiliiintitl' lea.se.l in-einises f.ir tcni years to
iB.. whn iiix'enanteil for himself, his executors,
|ailiiiiiii.stniti)rs, ami assigns, that neither he n.ir
Itliiv ivimlil, iluring the term, assign, transfer, or
liuMet without the written consent of the l.'ss.ir,
luitli a iiniviso for re-entry in case of lireach. H.
iniirtf;iigeil to H. without the jilaintitJ"s e.insent,
[bnt the Iiliiintitl' waive.l this f.irfeiture. After-
itaiils H. Iriving forelose.l his mortgage, adver-
fcsiiltlie l;iiiil f.ir lease, an. I one "\\'. took ]ios-
lesiiin, .111 the un.lerstainling w itli H. that an
Igreimeiit shoulil he .Irawn up that he shoulil
lave it fur tivi' years, with the privilege of re-
biiiiiig till the eml .if the j'ear ; the rent to he
|iS()a ye.u. He reniaine.l ten m.inths, .an.l niaiU;
Eiiriivemeiits, whnn he gave nji p.issesaion, he-
Isiisthe wiisunahleto get the written agreement
wiiseil, ami the sum due to him for inijirove-
lieiits, less a sum allowe.l to H. f.ir rent, was
(ttleil liy arhitration. \\'hile in jiossession, W.
iltti«rt iif the land (a house ami garden,) t.i
be I'., wild wiis to have it for three years, with
Jeiirivilege of reuuiining Hve, at S.'JOO a year.
, iiotitie.l ('. not to pay any rent to any one
"unit his autliority. After W. gave up pos-
Biim, (', took tlie whole of the premi.se8 from
L, ami jiaiil some rent aiul made some iinprove-
jents.— Held, that there had heen a breach of
XXI. Ollll'.li CoNrHTIONS AND AliRKKMF.STS
IN l/KASKs.
A lease was maile la'tweeii tlirei' parties —
jilaintiU'of lirst part, one H. of seeuiiil part, and
definilant of third ]iiirt. The (ilaintitt' leMsed to
I!, an hotil, with .'.rtain g.mds .'iiid I'hattels ;
and B. cii\enanteil, jinioiig other thii gs, at the
.'11.1 of the l.'.-ise, to pay lihiintitl' th.' iliHerenco
hetweeii I'.'i.'Oand the value of such ^nmls, « hieh
Viilue shiiiild he ascertained as pioxiilnl hv ailii-
tratimi. The defendant cov.n.iiif. d with the
)il;iintill' th.it li. shuuld pay the dillereme he-
twei'ii th.' sai.l sum of t'.'i.M) imd tlie value of
such of said goods and chattels, ,Ve., nut a.ldiiig
"to lie Msc.'rtainc.l as af.nes.-ii.l," Imt Held,
that they wi'i'.' to he iimlerstood, //m/is v.
AiliI;/, .S'C. I'. •_'(!•_'.
hefend.'int lease. 1 a farm fr.mi the |il,iintifl' for
Steven years, and stipulated that he shoul.l let
him have with it a h.irse, w.igg.m, iilongh, har-
row, and a set of li.'irn.ss, at a valii.iti.iii, to ho
retnrne.l .if ei|nal value at the CNpir.ition of tho
term. I'laintill' sued for nmi return, alleging
th;it ilefen.lant had not returned the sai.l goo.ls,
or any of them, of eipial value, .ir otherwise :-
Held, lireach well assigneil, an.l .leclarati.m suf-
ticieiit. (jiua're, as to the m.':ining of the agree-
ment. /Vic v. //itrl, 14 (,>. I!. '.ViC.
|)efen.lant leased a liuildiiig to I,., reciting in
the lease that it was rei|uired to carry ou the
husiness .if a miller, nml that it might he neces-
sary t.i er.'.'t .itlier Imildings. ami to put in cer-
t.iin niachinery and a steam engine ; and it wa.'i
agreed that such nia.liinery .■^hmild he the sole
an.l alisiihite iiroperty of the less.-.', ;iiid that ho
might reimive it within a reasonalilc time after
the expiration of the term, .l.iing as little
damage as ]iossiMe to the freeh.il.l : that any
huil. lings erecti'd hy him should he ]iai.l for hy
defcn.l.int at the expirati.ui of the tei'iii ; ami
furtiier, that the lessee might, in his disereti.m,
use the pr.'mises for miy other husiness, an.l in
that case the lease i-li.iiild stand as if originally
iii.ade therefor. The lessee coveiiante.l to re-
jiair and leave the pnniis.s in gmid repair. I .
assigneil to M. the ]ir.'niises .lemised, ami all
the maidiinery erecte.l there. m, in trust to secure
the iiayment hy L. of certain ilrafts which M.
ha.l accepte.l for his accominoilation, and for
that purpose on default to sell the residue of the
term, and the luacliinery and millgearing.
Soon afterwar.ls L. went away. M. olitaincd
possession hy ejectment, ami s.ild hy dec.l to
the plaiiititr.'dl t-he machinery, &c., giving him
authority to take d.iwn an.l remove it. While
he was d.iiiig so defen.lant prevcnte.l him, ami
the plaiiititV in eonse.pienco replevied, hefen-
dant plea.le.l .iiily that the inachinerv was not
the plaintilf's : — Held, that the jilaintiff was
entitle.l to recover, for hy the terms of the lease
tho machinery w^as exiiressly maile chattels, and
tlie projierty of the lessee, and though defen-
.lant, after it ha.l heen .let.aoheil from the free-
b.il.l, might have distrained upon it for his rent,
yet he had not placed liis defence upon that
ground. Dairy v. Lfu-U, 18 Q. B. 21.
Plaintiff leased to one M. for ten years certain
premises by writing not under seal, under certain
l:'i
;ii
w
2079
LANDLORD AND TKNANT.
ternm, M. to fiirninh iilnintifT with utt'ain jiownr
to tilt! «!xti'iit of (ivf lii)iH«». PofuMilivnt for roiiio
tiiiiu farricil on tlir liuHini-M in imrtiii'rMliip with
M., ami HuliM(.>i|iieiitiy, n iliamihition hiivinf; takt'ii
plaoii, ooiitinut'ii thu IxiaincHH hiniHulf. I>uring
tilt; |i.'irtnt'riiii|i n, I'ortnin nnioiiiit of Htfiuii powi'i'
was iirovi(li'(| for plaiiitiH' \>y k'SHcc. I'l.iiiititr
Buuil clffvnilant for not furnishing thu (quantum
of stiiani iiowi'r sinci' tlit; iliftsolntion. hufi-mlant
iluniiMl hiM lialiility, setting; up a yi'arly tfiiant^y
not uniltT Mi;al, and that lit,' was not a ttMiant
undi^r till! a>,'ri'i'nic'nt untiTcil into with M. :
Held, I. That tlif a^,'ri,'i'iiiuiit or IcnHi- to M. wan
Void, not lit'ing undfr Hi'al, hut might Ih? roforrt'd
to for till! tiTiuH of thf letting : "J. That a pro-
mise 1)V ilnfiMidant to furnish the power was
inipliod hy law, from the facts and situatioii of
the parties. Li/innu it iil. v.Siuin', 10 ('. 1'. 4()-.
The ]ilaintifT oociniied certain jirt'iiiiHca on the
bank of tlic river ^iagal•a, near the falls. De-
fendant occiipieil, under an assignment of a le.aae
from till) crown, premises of tlio same natiirn
nearer the falls, in which le.asu was a comlition
that free access lie permitted to the falls liy the
staircase and pathway at the foot of the rock on
the defendants premises, at all times to all ]ier-
80118, on ])ayiiieiit of a sum not to t!xceed 'JS cents.
"Mr. Thomas Harnett, (the iilaiiitilF) or any assig-
nee of the iircmisus now occupied by him at the
falls, or regularly employed giiidt! or guides in his
service, while conducting any person or jieraons
to, under, <m' from the sheet of water, to lie exemp-
ted from all charge for the use of the said ))atli-
w^y." defendant erected a fence across the,
pathway at the most northern limit of his land
below the hank, and thereby shut off the plaiii-
tifT's access to the falls by means of his (plain-
till's) staircase, which was further from the falls,
for which obstruction the plaintifF brought tliis
action, cl.iimiiig in his declaration a wrongful ob-
striictiiui of the said stain'ase .ami ]iatliway.
Defendant pleailed that he did not obstruct the
staircase and pathway reserved for the use of
the plaiiititV by the letters patent : Held, that
the only right claimed in the declaratiiui being
that granted by the letters ]iateiit, which, on the
pleadings, was shewn not to have been obstruc-
teil, the defendant was entitled to suceeed. liar-
nctl V. iJdjiliii, 1 1 C. 1'. 7().
The lessee covenantod to clear up and fence live
.acres each year, and to split and put into fences
.')()() rails eacli year to fence saiil land cleared by
him, and there was a right of re-entry on breach.
This number of rails would not nearly fence
five acres :— Held, that the covenant was satis-
fied Ity clearing five acres each year, and fencing
■with 11 fence of some kind, having - in this case j
a brush fence -in it oOO rails : Held, also, that ,
the clearing need not be in blocks of five acres ; '
and that defemlant having tinished clearing three j
acres which hatl been chopped by the plaintitf, |
part of a larger field, but was unfit for cultiva- |
tion without logging, burning, itc, and fenced it
one side so as to form a lane, which was requireil
between this fence and an old fence there before,
and having cleared more than two acres else-
where, had complied with the covenant. Mc-
Laren V. Kerr, .SD «. B. 507.
The proprietors of a house in the course of
erection, which was intended to be used as an
hotel, made a lease thereof for a term of five
years, from the time of the completion of the
building. Thf leane rnntaincd, amongtit ..fh
A covt!iiaiit in themi words ; " And the Hairl |,.
coveiiaiitM further, with the said lessors, tli.i
will furnish the said hotel in a Hnlintantiiij
good maniuT : Meld, that tin's was a ixiituii
, covenant, and that tiie IcKsee was not at lilii'
during the continuance of the term, to rcii
out of the house the furnituri! thereof, wluij
had placed in it. Ilimaln v. Jufl'm, ' C'hy.
.\.\ll. l{ri;iiT o|f Tk.nants t(i Cr.FAii |,as
In an aition by reversioner agaiii.st ten
for injury to the reversion, causeil bv i-nt
down and carrying aw.ay trees and uiidcrHi
defeiiilant ]ileaded his tenancy, under a dn
from 1»., for H) years ; that at the lime of tin
I mise, till! land was chielly wild and In a stat
! nature, and eouM not be used for fannini. i
I poses, for which it w.as demised, and difcm
cut iloHii and removed the trees, ,^<',, imhim.i
tion of the wild land, cleared and iii,i,|,. j
for cultivation, fenced and cultivated it, mal
it productive and useful, and thereby iniprii
the land in value, and ilid not iiijuie |ilaiiitj
reversion : Held, plea bad. JJnii,;'
ii'/yc, -J'.' ( •. I'. :ui.
'I'he owner of land macle several Iimsci
jiortions thereof, wherein it was stipiilatuil t
the lessees should have a rigiit to cut
timber tlieieoii ; and they on their jiarts c'(
nanti!il to make certain iiiiprovenirnts. Hv
le.ase to the defendant it was ;igrecil th.it
lessee should render up all improveiMeiits,
the lease did not bind him to make aiiv : 11,
that the lease did not confer a rigiit to cut
timber standing on the demised iireiiiiai'n, u
withstaniling the same were wild, and in n gt
of nature. (I'dii/in v. Ctihhi'i'U, l.'t Cliv. 4;i,'i,
'I ai
A le.ase of rect(U'v laud by the rectni- o
tallied a covenant not to clear more tlnn a cirt
portion of the land demised : that tlie ilmi
sliouhl be for agricultural puriposes, in ('{iiitiL'iil
tields, not exceeding ten acres eacli, siu'li liJ
to be enclo.sed in good lawful feiu^es, "aiul s\
be sufficiently chopped, iinderliriiHluil, lnj
and burned, according to the due course ef t'al
: ing and good husbandry." It ap|i(!,irtil tliati
lessee's cutting was not meant to be liinitiif
what "might be necessary in workiiii,' rc:;
clearings on the land," and the lessee, with I
, lessor's consent, cut and sold the tiiiiber off |
': acres ; but the lessee having for two years ilf
' nothing towards clearing this |iortioii ef tiiu|
mised land, it was held that the delay was^
to the objection of being contrary to "tlir
course of f.armingand good husbandry, "aiil
the lessee washable to damages in iis|ie(t t!.|
of. Liiuihj V. Tiiir/i, l()('liy. .WT.
See C/unltiitl V. Do;/, (5 (). S. (i'.'T, p. L'084.
XXLV. Notice td (,!riT and DrMiNn
I'dssessios.
Where a tenancy from year to year exists, I
1 during its continuance the ]iarties aijrn' i|
1 lease for a certain term, with a power t"
I tenant to purchase, which is never extciiteil,
I tenant stands in his original sitaatieii .iftirl
I agreement fails, and cannot be ejectvd nitlT
I a regular notice to ijuit. J)oe d. Croobkiq
, Croohhank, M. T. 5 Vict.
20HO
•ontaincl. araonn-'t "tW..
>g . " Ami the !(!uil IfMte
hotfl i» » H»'>»t^'<""> »'>'»
thiittliUwftnan.utimiing
r,,. lc»iM!<" w:\« not ivt li\..Tty,
.,f till- term, t" remind
lU'C *'* ^'' fill
,>,nulu.ctl>.MV..f.wn,.lih.
2081
I.ANDKOKL) AND TKNANT.
2083
TKNASr^ Ti>
ri.r.All l.ASII.
rcverHi'iner ii^'ain^l t. nant.
awaytrc.'H ana UM.l.T«""d,
,isUMmurN.una..-:va.:.m.o
,,„.. t\,:vtiittl..'tnnr.if ll.c.le
u,„\, rlcari'.l ai.a urn Iv it fit
,,.".l u>.louUiv:tt.;l>t,,,akM,.
I nstful. a.i.l tluT.Uy im,,rnvi.a
■, ail'
I
'ul.l l>ave a nj^l't to
vvlli\ ;iM'\ ill '1 »t\tl!
nntni'tt<"."'\' "'^, ^ ,1 ,„,,„„„
l;iU<l tU'll""*'^'
,,\ ; tli'it the .■luiirini!!
iiuMiiitipii'inI
11. .,,1 mirlloMfX, 11" ""^'P I
v«r;ovatmal rV.. ^^^ ^^ ,_,,,!
>■ i'»"VV^"'; ., ,,„,, ,,,„r»>' "t t;inu-
^^^•■"r^'"f,v'' ltvvi-:uv,ltl.;ittlie!
If c t au.l sol.l tlio ti.nW.v nil
I" V , •vvinu for two vfavs a. ,
InUcWnugtluM ,^^,^,,^^,,,,,,
It was hold that t ' ■„^l |„,
I„u ot ",'''"*',., ,.l,..,„lrv,auatW
:OS-t.
m-ir AMI l>r.MAM"'f i
I'OSSESSKIN.
Lntinuaiice the 1 ,„,er t. tl
[certain term. yth^l^^.^„t,l,, a
lilB, and cannot be Me^,^^^„^^,.t,
Itice to «H"ti.- ^^"^
M. T. 5 Vict.
Uvfi'iiilaiit liAil Ikumi tuimnt to tlic |ilaiiitiir at
i yC'irly relit, (liiyalilc i|iiarti'rly, tnr a ttTlii
»|iiili I'"!!''"*''' oil iNtof.luiic, 1S,V.(. Ahiputthat
tinii' a IK'W Iriuc wax a^'ri'cil u|hiii lii'turrii thrlii ,
jt all advaiicticl rtiiit, Imt none wa* txciiitcil
iiwiliL' to iiliJL'i'tionH iikisccl liy tlir ili'fi'lnliuit tn
the ilr.'ift. Ilffciiilaiit paid a year's leiit, ami j
iiiiitliri i|iiai'tt r ha\ in^' talU'ii dm- tlic plain! itl'i* |
.lintr.tiiit'd, Imt tliey altt'iwanls aliaiiduniil that
iiriiiTi'iiinij, and on the ITtli of Si|iti'iiilnT, iSCiO,
ilie plaint ill's attorney Herved a written deinaml i
„f iiciHiieNsinn nil del'endaiit, uliii tnld him that
lias jiixt ^^ hat he wanted, and that the iiUintiU's [
lulijlit have the plaee. He refuted, hdwcver, to
.„ lit oiiee with till' attiiiney and nivf it up,
Mvilik' that lie wiNlied lirst to reiiinve hihiui .
(Ii'jiiirrt, Nutliiii),' imire was done, iuid the plain
tills tlll'ce weeks after lia\ iiig liniii^ht ejeetineiit,
ililVliilalit, liesides denying' their title, elainied
tihnlil as their tenant : Meld, that the plain-
tilf* were entitled tu reenver, for I, the defendant i
hiving ih'iiieil their title eoiild not insist upon i
iiiitiie to ijllit ; iind '_', he was estopped liy his '
^itfiT to leave the plaee. .Seinhle, that defi'iidant,
tliimuli he liad not aeiepted the lease tendered,
MJ, iiiiil'''' the ciri'iiiiiHtaiiees, the |il,iiiitill'rt'
tiiiint. Ihiriis, .1., disseiitiMi; on the ^'roiind
tliat ilefeielant l>eiii>,' in as a yearly tenant, what
tmik plaee on the ITtliof .Seiiteiiiher did not alter
liii|iii.sitiiiii, and th.at his iioMee w.is only a denial
Liltlii' jilaiiititVs' ri),'lit to p ' e ■lioii. ('nrhrrUjIil \
1,m/. V. M''/'linVu>,, •>{>{}. o.^.l. I
I'laiiititr leased part of a Iikiihu from defundaiit
L. at .ft a iiioiith, and if L. sold the house he
I nan til leave if he eoiild ^et another, or, aeeord-
mtii miiiieof the witiies.ses, to leave in a iiioMth.
1. mill I tliu house and conveyed it, on the 7th
.\iij;iwt, to the vendee, \V., who wanted iiiiiiie-
.into iiMssession. 1.. had iirevioiisly ;,'iven tln'
I fhiiititt' verh.il mitiet' to go, and on the 7tli
l.Ugiwt, .after he liad emiveyed, he at the su),'-
(iestiiiii of NV. ii'iy<-' the plaiiitill" a written imtiee,
[ihitli W. saw I,. si;,'ii. 'I'he plaintilV at first
liiniuiisL'il to ).'ii, hut afterwards refused, and his
Ipt'iiierty was put out hy I,, and the other defeii-
liijiit 111! tlie !(th Septeniher, on wliieli W. took
jjnissi'ssiiiii. 'Ihe jury found that the tenancy
lijit" tiTiiiiiiate on a month's notice, and j,':vve
ItW iilaiiitilf a verdict for .'?I0!) : Meld, 'that
itlie liuiliiig must lie taken to mean that the
bljiiitilT was to have a month after the sale ; that
K the iiiitice was given and the entry made hy
liy autliiirity of \V. it would he sulticient,
lu iiL'W trial was granted to deterniiiu' this
(oiut. MiihIhw^ v. ijnjiii it III., ;{() i^ I!, as I.
i St(! I)t,( il. liimti'i- V. Fnr.ir et ni, 4 O. S. SO,
(.'K; />i;.-d. Simwfx V. liillk'ii, (ig. li. aU'.», 11.
Hnn;;i v. Fir<iii.i.'«m, !» (^ H. 4,S1, ].. •2(f2{) ;
iilhnr v. KivimlKiir, 12 ('. P. liiiT, p. '2017 :
tii»if/v. I'dinr, l.Sf. r. ill, p. •J07(i ; Sl„lit<,ii
l.</i.Wiw, 'J'J Q. H. ()2I, 11. 2030; Cuii/MI \.
\ai: l.'iC. r. 42, p. 20;{(); Mnuniuii v. Diver
jiiL.SJy. B. 204, p. 2047.
[Stf.aUii, RiKiT.MK.NT, II. 3(/'.) p. IU)4.
.\XV. Actions and Pkockedinu.s bv
Landlokd.
1. Corinant.
(a) Pleading.
lie »vcrment of some consideration or induce-
mt for the making of a lease other than the
131
annual reiitN iiieiitioni'd in tlin lenso, in not iieefii-
sarily a eohtradii'tion oi the lease, and therefnru
had. Mflnlijie v. Cilji nf Kiitil-ildii, 4 y. H. 471. .
* A ple!k averring Home other eoiiNidvrntioii miiiit
shew lliii> eoiisiaeration passed and vxeelltvil
til /'lire till' uieiiiij nj' tin Iiiidi, lli.
After hreaeh of the eomlition of a lease, tlm
aece[itaiiee of Home enllateral thing in Hititifai!-
tioii, cannot he pleailed in har of an action on
the lease. Ih.
Where the leHsee pleaded an aHHignineiit, ami
then averred the acceptance hy the lessor from
the assignee of tlu! sum of CIH7 Ills., not as thu
rent sued for in this iictiou, hut merely as "for
the rent aforesaid, in form aforesaid, reserved
and made payahle " : Meld, that the plea wan
not argiinientative, as setting up indirectly pay-
ment of the rent. Met 'nil,, rh v. Jurri.i if ill., 8
^^ H. 2(i7.
Covenant for rent due mi a lease of a mill, alleg-
ing that although plain till' had |iertoriiiedall tliingH
in the lease on his part, yet the relit reiriaiinil un-
paid : I'lea, that the plaint ill' permitted the dam
and race to he out of repair, contrary to IiIh
covenant in the lease contained ; without thiH,
that the plaiiitill had peiformeil tlu' lease on Inn
part aH alleged: Held, no defence: \i'il/,iii v.
S/fele, 14 l.». It. ,'-.70.
To a declaration on a covenant in a leaHO
alleging that defendant covenanted with plaiiititf
that he would during the teriii Hpeiid and employ,
ill a hii.sliand like inanner, upon the demiseil
premises, all the straw which should grow there-
on, and charging as a hreaeh that the ihfeiulaiib
drew away many waggon loads of straw w liicli
grew thereon, and used it ilsew here, defeiidant
pleaded that the covenant in the declaration waa
not the w hole of the covenant, hut that it con-
tained additional matter completely i|iialifying,
as he contended, and in ellect iieutrali/ing that
part of the covenant set out ; the whole alleged
covenant was then set out, with .an averment that
defendant li.ad fullilled it according to the triio
intent and me.ining of the added part: Held,
on demurrer, plea liad. ■'^Ii'nr v. .Sji'nr, 22 ('. 1'.
147. See, also, Mitlir \: A'l/iW, v, I4('. 1'. 188,
p. 'Jtrt.
I>efeliilaiit also pleaded on eiplitahle grouiida,
that hy mutual mistake the covenant declared oil
w.is inserted in the lease in ditl'erent terms from
what hotli parties had agreed upon, intended, and
supposed when the lease was executed, and that
reading the eoveiiant as it should have been,
there was no hreaeh thereof: Held, (iwyiine,
diss., plea had. S/iier v. .Shier, 22 ('. I'. 147.
Action on defendant s covenant to pay rent,
eoiit;iiiied in a lease to him hy plaintiti' of a mill,
for nine years from l.'ith Deeeinher, ISdS, at a
yearly rent, ji.ayahle half-yearly in advance on
the l.^tli .fuiie and Deeeinher in each year,
alleging non-payment of three half-yearly instal-
ments of rent reserved. I'Jea, hy way of estop-
pel, that previous to this action the lessee (now
defendant) sued the lessor (the now pl.aiiitiif) in
the (Jounty Court, alleging in his declaration that
by the leaae, in the event of tot.il destruction of
the mill by accidental tire, the term should cease
and the rent be aiiportioneil ; that upon such de-
struction on the 30th October, 18(iU, the said term
ceased, and the lessor became liable to refund to
20M3
LANDLOllD AND TENANT,
the lessee sucli part of the rent paid in advance
as on a just a}iportionnient should lie frmiid due,
and tlie lessee alleged in sueli actioiitiiatS137.r>0
thus became due to him, for which he sued there-
in : that the lessor pleaded in such action thit
the said lease was not his deed, and issue heing
joined tliereon, the lessee recovered judgment
for tlic said sum of .SIST.'tO. The plea then
allegeil that tlie judgment remained in force, and
that tlio rent sued for in this action was rent
aceniiug diu' after tlie said .SOth Ocbiher, lS(i!).
To this the |il:iintitl' replied, that after such tire
the defendiint continued to hold and occu])y,
and still holds and occupies the premises under
and liy virtue of the lease, and would not
and clid not ]iut an end to said term or surrender
said premises: Held, a good jilea ; for though
the plea of /('))/ i:</ I'lic/iiiii did not [lut in issue
the destruction of the mill, and conse(pient
determination of the term, yet tiiese facts heing
necessarily averred in tliat action, and notdenie<l,
were admitted for the purjmses of such action,
and the lessor was now estojiped from disputing
them. '/'<! ;//,,!• V. Nor/ii/j, 'Mi Q. H. 402.
To an action for rent due on a lease defendant
pleaded, that after the lease the plaintitl' "did
grant ami convey, l)y way of mortgage in fee
sinijile," the demisiMl premises to one M., who
claimed the rent: Held, sullicient, v.'ithout aver-
ring that the conveyance was hy <leed. I'lrilnr
V. J/ai/scI a/., :H i}'. n. 111.
Defendant took an assignment of a lease from
the ]ilaintirt', covenanting to perform all the
covenants in it on jilaintitF's part, and to indeni-
iiify hini against them. The lessor sued the
plaintitl' I'or l)reaeh of the covenants to repair,
&c., and i-ecovered, defendant having notice of
the action, and, according to some of the wit-
nesses, liaving sanctioned the defence : -Held,
that under defendant's covenant the plaintitl'
was entitled to lecover the damages and costs
ill that suit, but not interest. Sjicitce v. J/ertor,
24 (). n. -2".
When there is a coven;uit to indemnify, and
the recovery against which it was given was
obtained without collusion and fairly disputed,
the covenant(U' having an opportunity of inter-
fering: (,)u:vre, whether, when sued on the cove-
nant, he can dispute the liability of the cove-
nantee to damages so recovered. //).
Keld, that the plaintitl' may claim interest on
a demand for money rent, made payal)le by the
covenant contained in the lease executed by de-
fendant. Cruoti V. J)irti()ii, 1 L. .1. N. ,S. 211.
— C. Ij. C'hainij. — A. Wilson.
But, Qna-re, as to his right to recover interest
on each instalment of rent as it falls due, with-
out shewing a previous demand or other warning
to defendant of .an intention to demaml interest
in the event of iiou-payuient. //>.
In this ease an order was made f(H' the allow-
ance of interest from the commencement of the
suit. Senible, the master ought not to allow
interest on computation in such a ease without a
judge's order to that effect. //>.
Held, aHinningthc order in the last case, that
in an action of covenant for rent, an order by a
judge directing the master to allow the pl.i
interest on the amount claimed on the wi
summons, not specially indorsed, from tint
of said writ, was properly made, altiiou"!
interest was claimed in the declar.ation. .V
('. V. 5-2:?.
2. Tivfii in ■<■■<.
AVherc a tenant holds os-er after the ex]iiri
of his lease, his landlord has a right to take
session of the premises, if he c:iu, witlid
lireach of the peace, liuiilluii v. Murii/fi/
S. T.i\.
A lanillord may maintain trespass ag.iinsi
tenant foi- the vahie of trees cut duun ainl
ried away by him, and which were not iliii
to him, though growing on the laud wiiirh
tenant held. C'/ii'ntiiiit v. />«//, (i U. S. t",\~.
When premises have been let, and the te
is ill p(jssession, the hmdlord cannot sue a pe
j for breaking and entering the Jireuii.^es and
I ing down tlie fences, unless that persnn lu
some other time reni<ived the rails an<l convt
them to his own use. lihihir \. ('(i/udui,
H. 172.
For trespass in breaking and entering;,
pulling down tenenients, &<;., defeiidant jii^t
as termor of the premises, with the right ti
i move buildings : Held, that he slioujil I
i proved the existence of the term down tn
I time of coiiiinitting the g.-ievaiicecouijilaiiiec
' and that a surrender in fact having t.ken plai
release for the rent under seal was '.ut iiecesi'
U'iUuii V. Wihoii, 10 C. r. 47(1.
3. Orffliiililinii Ti'iiiiiif--<.
(a) Umhi-.'f Will. /]'.<: /., C. S. C.r. ,
The 4 Will. IV. c. 1, sec. ."i.S, does nut
rize a writ against a mere tenant at will,
he continue to hold after notice to ijuit am
mand of possession. 'I'he st;itute cxtcu
to tenants holding after the expiration .
term, ('//■iiim/ v. Shriri-r, .') (». ,S, ,Slll:
(int V. Sliriirr, T. T. (J .V 7 Will. IV., ];.
Dig. 2(J.S.
till
This act applies only to tenants wlmse l
have expired by lapse of time, not tn
forfeiture. J'l- Jtc\iih tnul DiihIuji, \\
1.35.
A tenant remaining in possession aftei' tli
piration of his term, and i)aying two
rent, cannot, in the midille of the tliiiil iii
be treated by his landlor.l as an nvc
tenant under this act. Adams \. lin'm^.
JB. ir)7.
Quwre, does the statute ajiply in :uiy ri*
to tbo plain one of a tenant oveilioliliiii.',iltt
expiration of a term expressly creatud In
I tract between the ])ai'ties. //'.
A tenancy for an indetinite term at .i in
rent, to bo put an end to by a iiiontli's ii'i
not within C fS. U. C. c. 27, s. ()3 : and.-
cept to put the landlord in possession was t
fore refiiscil. The tenancy intended hy th;
: is not one which can only be put an eml
. notice, but one which comes to an end b
I alUuxion of a stipulated periuil, or perha
208 -l
2085
LANDLORD AND TENANT.
20SG
.aster to allow the jto^tiff
piint c
lainied on t\\f writ ut
Uito
ierly u.a.le although u,
■ tlieileclaratiou. >>
r. l.j
in
'f/v.-i/<n.'<.^.
1,1., ovf rafter the L'xim-atMU
':£:V u^ a right t„ t;>k. y..
.a if he can, withuul ^
1 1
maintain tresrass against lu-
■^r[i::ht;-^i->
,,,,„„/v. /^'-.'/. »>"-^-'""-
, have hecn let. and th. tt-mua
liunaior,leannotsucav.vsun
•^"ruf.less t at ver-n l--^t
-""=';.. I Uu' rails an.lc.o.vt.rt. a
■ t.vf.i.kin" anil entevni;,'
'" .?! &r..lefeu>h..t.iust,,
luenient^, ft-i...
:uia
down tn tlli-
...,nise.s, ^vitii the nglit tn r.
'^'^ 'that he M.ouh
the term anwn
r.-icvaneeei.niplai
:;:n,lerinfaethavin-t^keni
reutun.leri
..„». IOC. l'•■i'''■
:^Xu:t^uvthe.h,.i
>«^-^"lSvaSeonn.lau>,a,:.
^^"\«.'!S'havingt.kenl-l-;
;:ierseaUva.-.ntnee.*an.
I ... -/i does not autli"-
ffu'ate--tleeto,mtau.la.|
.hlrng a/tertlu_e I I ,^^ i
Lues only to te.vant.^^J;;^t.n4
LaininginVo^i-^t-;;:a
lis tenn,an>l .'■'!,._.,, ,„„„jj
[in the ""'"^^Vas an uvo.-l>»M>>|
Ir this aet,
les the statute avvlymgXi
lone of a tenant o-;^^^^^^^^^^^^
If a term expi^-^l".^
In the V'^'ti^''*- ' „,,,ll
l,utanemltoi.> . ^ ,53. ...iM-j
the happening of a particular event, as uuiler a 1
lease for the life of tlie lessor. Pattun v. KiHin.-<, I
22 q. B. (iOO. j
Wliei'c Uie jurj', in a proceeding under this \
act, fonnd in favour of tlie landlord, tiie court
refused to restore the tenant to possession, on
the j,'ronnd tliat the .igent of tlie landlord had
lettived a month's ruiit after tlie verdict.
Ilrt;;/;/ V. Jiihn.-'iiti, 2 Q, H. 273.
The court will nut grant an att.iehnicnt against
,111 over-holding tenant, under 4 Will. I\'. c. 1,
s. 5.'), for the non-payment of costs, until an order
t.ipiiv the costs has heen first served iqion the
ti'iKiiIt and a demand made, hi rr JfrLiidildii,
Notice of the iminisition not having heen
nerved personally, and there being evidence to
shew tliat defendant was not resident on the
iiivnii.ses when such notice was served, the notice
anil all snhseijueiit proceedings were set aside,
Imt without costs. (Imnllpr v. VouL; '1 C 1...
llwuili. l.')l Sullivan.
.Seiiihle, that no motion on behalf of another
iiir.siin or owner could he received, .as such per-
siiii cmild not lie liound by any proceedings
joai'ist the alleged tenant. Ih. \
A liuidloi'd proceeding under' this act cannot, \
wilier 14 & 1.") Vict. c. 114, s. 12, recover mesne
iiniiits, that act applying only to ejectment.
Alhnw U»[fn:<, l.'i Q.'B. 1(;(;.
Semble, that the court will n.)t (juash the in-
iiiiisitioii for mi.sconduct of the c(uiimissioner,
lint that they can Indd him .amenable for such
luiscoiuluct on an imlependent application. Ih.
Where, on the exjiiration of a tenancy, crops ;
rouuiin to be valueil, this should be d )ne, am'
tlic aiiiiiunt tendered before applying uiidcr the
(hiiiidldiiig'l'enant Act. In re Jini/h, 2 I'. It. 1,'U.
-I'. L. Chamb. -liobinson.
Where the first .jury summoned cmild not
Sirte, and were discharged : Held, that anotlier
jury might be summoned, and .an effcctu<al inipii-
sitiiiu held. Held, also, that on the evidence
set nut, this was a case within the act, .and that
I thelimling agaiiust defendant .as an o\ei'h(dding
1 tenant was warranted. J a re IVumlhur;/ rt <it.,
WQ.B.. ")'.):. ' j
Hohl. that the fact of a jury Iieing unable to
I ijroe, anil so disharged, in an overholding ten-
WLVcasu does not determine t '.e authority of the
1 Miimissiouer to summoji a second jury. //' '"f! ;
/■ ,7 (//., i)L. J. KS".— (,'. I., ("'hamb.— I
I A. Wilsiiii.
Tlie fait of the jury having lieeii discharged
jkciiiisent of parties does not prevent the writ
IlKiux still proceeded u])un. Ih.
if ,1 receiver has been appointed by the Court
lolCliaiicerv, to whom the tenant has attorned,
|«r if the interest of the original landlord has
Iktwi suhl to another, in either case the original '
IkHnril is not the proper person to take pro- !
Iwlings. //).
Where B. purchased at sherifT's sale, under
^lecutiiin, i).'s interest in a term of years, held
liter a third party, at a time when I), was in 1
session, and afterwards, upon D. 'a rerjuest, |
lUowed him to continue in possession for tivu j
uys, it was held that there was no privity be- i
tweeu the parties, so as tn bring the case within
the overliolding tenancy clauses of the ejectment
act. Hoiixerx. Jioic; 9 L. J. 213.— 0. L. Chamb.
— Hagarty.
(b) r,i,!,n' ;?7 J:^S Vlcf. c. .V>.
A landlord proceeding under 27 i^ 28 \'ict. c.
.SO, must adduce some evidence to shew that the
tenant refuses to give up the premises, and that
his tenancy has expired ; Held, al.-,;i, that the
alHdavit of the landlord himself, tiled under sec.
1, with a view to |irocecdiiigs under the act, is
not legal evidence against the tenant. In rr
(fVunn'-ll, 1 I.. J. X. S. 103. —C". C. d.eggatt.
['I'liis act is lepealed by 31 Vict, c, 2i), (>. ]
(u) rwhr ,7/ Vii-t. <\ .'/;, (}.
This act gives jurisilietion to the county judge
in eases when the tenancy has been determined
bj- forfeiture for breach of contract. Service of
the demand of jmssession must l)e pcr.^oiial ; ;.nd
service of notice of ini|uisition must either be
personal or .at tiie phace of abode of the tenant.
Xiiih V. ,S/iiir/>, ') ],. .1. N. S. 7.3. ('. C —
Logic.
Defendant went into possession as tenant of A.
under a lease with a right to purchase at a cer-
tain sum. He elected to jmrcliase, and remained
in po.ssessioii for about a year aftei' the determi-
nation of the lease, when plaintiff, the iiioi-tg.agee
of the lessor, brought ejectment and demanded
security for costs and dam.ages, as against a ten-
,ant overholding, under ('. .S. V. ( '. (•. 27: —
Held, 1. That the jdaintitf was entitljd to the
relief asked, as the defendant's cliaracl:'jr as ten-
ant had not been thiit of a vendee ; 2. That it
made no difference that the plaintitf w.as mort-
gagee of the lessor. Aii'tn'/imi'i.i, '.i i\ Ji, .S,")(>,
.V. C. num. W'lirh'll v. Inr-, 10 L. .1 2!»7. — I'. L.
Chamb. A. Wilson.
A mortgagee from wlioiii the mortg.igor ha.<
accepted a lease of the mortgaged premises, will
not be permitted on the expiration of the term
to proceed against the mortgagor as an overhold-
ing tenant under the above act. //( rv Ji'ifrf, 4
r. 11. 27.— C. L. Chamb. - Kichards.
Held, Hagarty, C. J., diss, that on the evi-
dence set out in tl"? report of this ease, the
L'ounty Court judge w.is justified in deteriuining
that the tenant w.as an overholding tenant,
within the meaning of the Act, and wrong-
fully iiehl over witiiout any right or colour
of right. I'er H.agarty, C. .1. The intention of
the act was not to empower the county judge to
determine the <niestion of right between land-
lord and tenant on its merits ; but on its appear-
ing that the tenant is holding under a bona tide
belief of right, which the evidence in tliis case
sheweil, he should dismiss tlie ca.se, and leave
the right to l)e tried in ejectment. (iWi'.'vt v.
iJuult, 24 C. P. (JO.
A person put in luissessiim of a brickyard ami
house thereon was dismissed by his employer,
hut refused to give up possession until certain
acecmnta were adjusted : Held, that he was an
"occupant" overholding without colour of riglit.
Fowke V. Turner, 12 L. J. 140. -C. C— Dart-
uell.
i; '
iH
■: '■:.: rid ' '^ •■
1.1
1
■I
2087
LANDLORD AND TENANT.
20.
4. Olfier Cases,
AVhere a tenant holila over after the expiration
of his term, his hmdhml lias a right to take pos-
session if he can, witliout a breacli of the peace.
JioiiU<m V. Miiriilui, .'> O. S. 731.
Senible, th.at a plea of nunijn.am inilebitiitus to
an action hy a landlord .against his ten.ant, for
not giving notice that he liad been served with
a declaration in ejectment, is a material issue,
upon which judgment may he entered for the
<lefcndiint if the verdict lie so found. Luunt v.
Smith, r. (,». B. 302.
A lessee sueil in debt for rent and pleading ,an
assignment and acceptance of the rent by the
lessor from the assignee need not make profert of
the deed of assignment. JlrCiillocli v. Jarrii ct
III., 8 g. B. 2(>7.
A bailiff seized certain gof)ds under a landr
lord's distress warrant for rent in .arrcar, but
did not remain in possession, or take auy further
steps to execute the warrant, except tliat, as the
jury found, the tenant m.'Vs constituted the laml-
lord's agent to take ))ossession of the goods for
him uiuler the warrant. After the lai)se of more
thr.;: n, month, a person having a chattel mort-
g.age on the goods took jHissession under the
mortgage and removed the goods, for which the
landlord brouglit replevin: — Held, thatunder the
circumstances, the landlord was not entitled to
maintain the action. Hoe v. Rojnr, 1*,? ('. 1'. 7(5.
See J/.'/»/if-,v V. Sliiimii, 8 C. P. ?A, p. 2013.
XXV'I. Tf.nants I'owKK TO DiHi'urK Title.
A debtor in [wssessicui of lands which have
been sold for a debt at a slieritf's sale on a judg-
ment against him, is (pi.asi tenant at will to the
jiureliaser, and cannot dispute his title, and a
third person defending as landlord, but shewing
no privity lietween the del)tor and himself, nor
any connection with the debtor's title, stands in
the same relation to the purchaser as the debtor
himself. Jhic d. .1 niiuuv v. McKirm, 3 (>. S. 493.
When the defendant, who went into posses-
sion under the lessor of the plaintitl', afterwards
refused to acknowledge his right : -Held, that
he was entitled neither to notice to quit nor a
demanil of pos.session. J)ot il. Jioiitir v. Fiaiir
It ol., 4 O. S. SO.
When a lessee took a lease for two years, anil
covenanted to leave the 'ircmises without notice
at the end of that time . - Held, ^hat on eject-
ment by the lessor at the end of the term, the
lessee could not set uj) a former lease to himself
for a hinger period. JJve d. Wimhuni v. Kfiit,
5 O. W. 437.
A i)erson who makes an agreement to jiurchase
land from another, and enters into possession
of the land under the agreement which lie sui)se-
(juently fails to perform, cannot defend an action
of ejectment brouglit by the heir of the vendor
for breach of agreement, liy shewing a title pur-
ch.ased over his head, he must first surrender up
the possession taken under the contract of pur-
cliase. Doe A. Mill v. Mill, 2 Q. B. 26.
A. on the 14th of August, 1844, demised bads
to B. and C for a year from Ist January, 1845.
A. afterwards, on the 23ril uf August, 1844, con-
veyed iu fee tu D. , taking bauk on the same day
I a mortgage for the purchase moneypaya),leoi
I certain day, the mortgagor to reinam in jmsa
j sioii until tlefault. On the 1st of Deceuilifr, 18-
1 B., one of the lessees, let K. into possession fn
I montli, bringing the time uii to the eml nf t
I term for which A. had demised to B. and ( ',_
I refused to go out at the end of the niontli, ini
' which 1). brouglit ejectment : — Held, tlmt V.. w
i not eatoi)i)cd, as tenant of the assignee of .\., fn
; shewing that the title tlie assignee li.ad (jn,,. i,,
-and that but for a moment —had uiiisoil
reason of the mortgage back to A., umler whi
A., .and not D., since default made, w.is crititl
to possession ; and that judgment sliciild
i entered for the defendant. J}oe d. 1/,,,.,.
i )('((^WH,4Q.B. 308.
A., purchasing land at a sheriff "s sale, havi
reason to believe that he could not get iMi.sscssi
without legiil i)roceediiigs .against the cxtniiti
debtor, B., to avoid this contrived l>v inllusi
with B.'b tenant, to get into possession witlm
the consent of B. ; -Hehl, in ejectnic.it liv
against A., th.at A. couhl not set up any title
himself .adverse to H. : that before lit- Vdulil ,
this, liowever good his title may be, \\v nm
ab.andou the possession obtained tlii-ongli (',, ai
bring an action against B. Dai' d. I/,//,,-
Tiffanii, .') y. B. ■7!».
A ten.ant in possession, will not be allowtil
purchase from . stranger over his landlnnl
head. Dae d. Siinpion tt <il. \. MuUuu it n
G a. B. 302.
Quivre, if A., in possession of bind to whii li 1
pretends no cl.aim, t.aking a le.ase fnmi I'.., »]
rejireseiits himself to l.>e the owner, is estdiiin
from 2)uttiiig B. to prove his title. /V i
Rodaihiust V. McLkui, (I (). B. n.,!).
A. being in possession without title, H. lenr
sented himself to him .as owner, wlicii lio w
not. A., by writing, agreed to lease fimn 11, i'
live years, at a rental of £4 lOs. This wntii
was signed l)y A. alone : Held, tliat iindur ti
eircumstances A. could dispute li. s title on tl
grounds of fraud and misrepresentinn. / //«]
V. /'(irlciii.soii 1 C. 1\ 144.
A declar.ation (ui a covcnii.it st:itcil tii:it
indenture between plaintill's and detcmlaiits, t|
plaintiff's detiiised to the defendants tliu tn
.authorizeil by law to be received upon a ctrt:J
turnpike roail, for one year : that the (kfeiKi.-iil
coven.anted to jiay a certain rent thurctoi' ; af
that by virtue of the saiil demise tlie tlil'iinlail
eutereil and were possessed for tlie turni s"l
them granted. Breach, non-ii.aynieiit of tliu nil
Held, on demurrer, that the dlcfeiidants wif
estopped from denying the ileinise, ami
bound by their express covenant to pay the nil
and that the non-execution by the les.surs, iiiiT
such circumstances, was no defence. Ami til
they were also estoftped from alleging' the «,■]
' of a common seal of the plaintill's tn thf l.:i|
or from pleading that they had nn aiith.irity
demise. Held, also, that a plea that tlic
indenture wjis not signed by the plaintilt's, nrl
any agent of theirs authorized in writiiij;, il
bad. MiiniriiKil Coitiicil i>f /•'rdiilcidic, i(r.,|
C/iesltiut, 9 Q. B. 3().5.
A stranger, whose goods have been seiznl
the premises of a tenant, cannot, any iimrt; tIJ
the tenant himself, (piestion the huiilliinl's riJ
to demise. UniUh v. Aubrey, 7 Q- 15. '-'0.
208S
2039
LANDLORD AND TENANT.
2090
rc1'r.se money pay :Uik' on a
raiior to remain ui vosacs-
'thclstofDecomlit'i-, IH-ir,,
let V' i"t" possoasic.n iCr a
time ui. to the cua of the
laemiseatoB. aiuU.- L.
he eml of tlie month, uirnn
•tment-.-Hel-l.thatlvxvas
it of the assignee of A., trom
e the assignee lia.l ouci- leW
a moment- had n^ase, hy
.uehaokto A.,mulci-wliKh
B .lefanlt ma.lo, was .ntuU'.l
that ju(\ginent_ shnuhl he
•eiulant. J>"<'
d. .1/.
It was proveil tliat defen Uviit went into pos-
session as assignee of a person to whom the
plaintiff had given a hond for a deed : that lie
had received iii<liilgciice as to the payments re-
(iiiiied hy the bond : that he had uxj)resaly
immiiaed to go out of possession if such pay-
ineiits were not made ; and tliat he was in de-
fiiult. 'i'his hiiiid was in defendant's possession,
n„\ at a sherift s sale, hiuu.g
vt he could not get possossiui.
.P.Uiitis against the execution
r'u:[^c.mtrivedl.ycoUu...n
„ get into possession w. hnut
._tHeld, in ejectmo.d hv B.
'could not set up any tit W m
; u • that l)efoi-e he nmhMo
allis title may he h.. must
:^3iou ol.tained through ..an,l
against B. Doe.lMdhrs.
9.
■„,. ,vill not he allowf.l t.i
upossessi.moflandtowlmhl.c
1 takim' a lease from U., wh.
:^ • l^r be the owner i. e.H,.
r to prove his .t,t- /'-I
[cLeaii, (i Q- 1^' ■'•■>'•
os,ession with.mt titU.. 1'.. ivvro.
+^! him as owner, when lK'«a»
,J ..nireed to lease ,.m> U .nv
t\ and misrepresentum. /-;-"■«
■^•^;^ Ke'deihmts the t.h
|l,,,v to he lec IV .^,,^,j^,,„
^'"""Snn t\he.viov;:u4
V'^::^S..>-thed.fenWs
,)l tut »■" f ^. terms"tol
Te^rmmiv-.-t.-ftl.rc,.tJ
,uurrer, ^1''' ', \ '\i,,„„,, and «er«l
I' Sr^oSna;ltt.^wtho.J
.u wiis no lieu UK.- - J
r'lTt e idaiutilfstotlul^-^'^jl
Ki.ithe^.adnoauth..ntytl
ii„g that tlHV j,^^, j
d, also, that a lu ^^^^^^, ^,^,J
l"l!rg<K.as^i-'-,ri^
lofatenaut caiiut >^^^^^,^^,^^
Plaintiff leased to defendant the west Imlf of
lot 2, Gth concession of Madoc, siiecifying the
premises, with the grist-mill, saw-mill, and tav-
ern thereon. It ai)peared, on a survey made,
that part of the huihlings were on lot 1, hut that
tho land in dispute went with tho huildiiig.s as
part of the premises demised, and that defendant
had entered and held possessiou of all as lessee.
and he had received notice to produce it : — Held, ! He refused, however, to ^dve up pos.session,
that defendant could not disi)ute the plaintill's I claiming to h<dd that portion included in lot 1
title ; and that the bond not being j)r(>duced, no
secondary evidence was reipiired of its contents.
Ihv d. Lount V. Siiiijmtii, 9 i}. li. 44.
A. conveyed land to R, wlio conveyed to ('.,
hut remained in possession, professing to hold
as C.'s tenant. ( '. conveycil to the plaintilf.
Defendant claimed under a purchase at sherill "s
sale, on an execution against A., and to be in
iKissession through K. , as his tenant; and he
offered to i)rove that having bnmglit ejectment
ai'.iinst H., the latter had agreed to become his
tenant ; and that the transactions between A., B.
ami C. were frainluleiit, the property remaining
jii A. Tliis evidence having been rejected on
the ground that the defendant cimld not rely
1111(111 r>. 's possession, inasnmch as lie wms tenant
to ('..and had submitted to a distress for rent
at liis instance : — Held, that it was admissible.
Ttniieri/v. Burnhnni, 10 (j. B. 'JitS.
A. being in possession of the west half of a
lut of laud as assignee fif the vendee of tho
as devisee for one M., though it appeared that
j M. himself was unaware of tlic true boundary,
I anil held all under the plaintitl' by lease, and that
; it was through his means the [)laiiititl' had after-
'' wards leased to defendant :- Hold, that the de-
! fendant was estopped from denying plaiutitf's
! title. Diu-ij V. Cinni'i-on, 14 Q. 15. 483.
(^tna'ro, whether a tenant or licensee of land is
j estopi)ed from disimting his lainllord's or liceii-
; sor's title as void on a statutable olijection.
: Jfallurk H id. v. ll'(7.«*/(, 7 C. 1*. 'IS.
The land had been granted to plaintill's wife,
I and during her lifetime he hail allowed defen-
I dant to occupy. .She afterwards died without
i having had children, and the plaintiff brought
I ejectment :- Held, that he cmild not ie;over,
1 for defendant was not estopped from showing
I that the plaintiff's title had expired. Jtuhtrtfiun
V. lianntnnun, 17 (^. J{. oOS.
, i. i 1 • • .. n „ ; ,, I n . "c'l^i'iii"'!' "IS lessee oi i). ueceiiseii, recei pis jj
.rnwn no liatent having issueii , assigneil the , 4.1 ..i <■ ,, , ' ..'^
irnwii ojy I ' .-.,,'' en ,1 ■",.•„• 1 ^ by tlie attorneys of H. were iiroved, mentio
Slim' to B . one ot the lessors of the iilaintilt, l)ut I •' .. ■',, , ,, ^, ' , ' .,
Willi 10 !>., 1 money panl as "due the ,Smeat iman estat
iiitiinKil 111 possession ot part ' ' • '
d havi
Ejectment. The plaintilf claimed,nnder a lease '■■
toiiiiiiself from the (Jity of Toronto, dated 1st,
January, 18.'')4. Defendant produced a deed poll, i
(Mouted hy the plaintiff, dated 3rd January, :
1S48, assigning to defendant and another all his
In ejectment hy the executors of B. against
I defendant .as lessee of B. deceased, receipts given
oiling
,, iiaiil as "line the ."Smeatliman' estate : —
I, i-t ,.,.;., t . ..'. Held, that the rule against a tenant denviiiL' the
.lilted rom B. a written permission to occupy 1 .-,, f i- , ,, i",] , , , , •' i^r
uiiitu " 1 r, . I c„ 1 1 1 r. I title of Ins landlord did not aiiiilv, the defen-
tii> -lanie afterwards ilisavoweil such liolilini;, 1 1 . • . 1 , ■ 1 M .. ^i
'"V, ' , , ,.,„.f'dants appearing to hidd under tlie Smeathmau
a„.l claimed to hold m his own right I luring ! ^ ^^^ „ot°.nder the plaintiOs. liuhhnn v.
theiieriod A so claimed, B. assigned the whole , ^;,^,.,^ ^,^ ,,^ , /
we.st halt to (. ., the other lessor of the plaintm : 1 '
-Held, that such disavowal by defendant A. i A tenant let into possession by a party claiin-
.iiiilil not create a bidding so adverse to B. as to ' ing rent cannot dispute the title of such party ;
iiivvent 1). 's assigning to (I. without first obtain- ' nor if let into possession by a third party, and
ill' iiossession by ejectment. J)i>c d. Ifcniler.Mm liaving acknowledged the title of and agreed to
v.°l/(ll'('(/'''' "'•> - <-'. P. 8. I pay rent to the plaintiff, can he afterwards com-
pel him to prove his title. SaiHh v. Mmli'laml,
11 ('. 1'. ;«7.
Tho plaintiff, holding a lease under the crown,
which expired in 1S.')4, executed a lease to defen-
dant for six years from the 1st of .\pril, 184.'>.
rishttothe land in ipicstion, to hold to them, as ' After the ex[)iration of his t:>rin. defendant con-
joint tenants, iliiring the time of the lease to be 1 tinned in possession, and paid rent as before, up
obtained for the same, and authorizing them to to r'ld for 18.")7, though, as the jury found, he
demand and receive a lease from the city on the was aware in IS.'ilJ that; the jilaiiitiff 's term under
latneteiins as agreed n])on to be granted to him- his lease from the crown had ceased: Held,
RJf. At the time this assignment was made the ' that the plaintiff was entitled to recover in eject-
plaintiff held only an agreement f>)r the lease, ] inent. Cuit-tf v. Cliiw, I!) (.}. B. 08.
])celaration, that the plaintiff let to defendant
a certain tenement, to be used by him as a dwel-
ling house, for certain rent, whereby it became
his duty not to remove or despoil the same, yet
defendant did remove the house, which thereby
became wholly lost to the plaintiff; and for that
defendant converted to his own use certain goods
ktiiaiilall the rent to A., exiept for the last | and chattels, to wit, a building and the materials
vear ami a half, which he paid to B. The first \ of which it was composed. I'lea, that the buihl-
i)i the payments to B. was made with A.'s as- j ing was situate on defendant's land, and enciim-
KUt. The plaintiff, claiming under a deed from bered the same, wherefore defendant gave due
A.inaile .-vfter this payment, brought ejectment : 1 notice to the plaintiff to remove it, and because
HeU, that the paynic, ts so made to B. formed it was not removed in a reasoii.able time defen-
dant removed it, doing as little dam.age as
possible : —Held, on demurrer, plea bad ; fot
wliicli lease, notwithstanding the assignment, ho
i kill afterwards procured in his own name : !
-Held, that the plaintiff was not ])recluded by '
I the assignment from setting up the lease, and \
1 therefore that he was entitled to recover. Pur- I
\iimn\. CleiiiHiiiiiiuj, ISQ. B. 1.50. 1
Defendant rented land from P. for five years,
lac defence to this action.
1130.11.283.
Pomeroij v. Denuimn,
:T:ili^
.2001
LANDLORD AND TENANT.
209:
Ilk AiU, iU«M
ilefeiiilaiit liavintr cicceptud a lease of the house,
M'hiuli woulil carry with it the laml on which it
stood, was cistojuied from thus deiiving his land-
lord's title. UvmiUh v. (>t}ilt, 1.') Q. U. '22J.
.Action for rent due from March, IS,"), hy the
])laintitr as nsHigiiee of the term, the jilaintiH's
right to sue and defendant's liability ))('ing lioth
disiinted. An to defendant's lialfility, the plain-
shewed that one Stanton, in 1844, leased to one
March f(n''2l years,who,in .August, 1 S.Mi, a.ssigned
to one I'hilpotts, who assigned to defendant ;
— tteld, that defendant, being the assignee of
Man'h, could not dispute Stanton's right to
make the demise in ijuestion. Juiira v. Tvdil,
'2'2 g. H. a:.
Tlie le.ise under which defendant held having
expired : Held, that he could not set up a lease
from jilaintitl to a third partj', to commence at
the expiration of liis lease, and contend that the
lessee under tliat lease was entitled to possession,
Init that he must give U]) jpoMsession, in accor-
dance with the tciiiis of his icase, to his land-
lord. /'<w V. Miicaithiij, VZ V. V. -.'((S.
The defendant having dealt witli the j)laintitl'
.IS personal representative of her huslian<rs es-
t.ate, and hcconie tenant to her as sucli :— Held,
that he was estopped from objecting that the
lanil was not liers, and she had no power to lease
it. rhrUtic V. Vhirkr, Ki (1. P. .544.
< >ne C. H. had leased from the plaintifl' part
<if the property, ,and being in possession gave it
up for !*()0 to defendant, who claimed that it
■was lier own : Held, tliat this was clearly a
fraiul upon the jdaintitl' as landlord, by which
the lease was forfeited, and that the defenilant
could not sot up C. B. 's right under it. A'^/c v.
Stocks, ;ii q. B. 47.
A. entered into possession under B. , who ver-
bally (iromised him a deed, to be execnted .is
soon as he liimself should receive a conveyance
from M., whose tenant at will he w,is, and wlio
hail in the meantime died : — Hehl, that A. hav-
ing entered under B., his heirs were estopjied
from disi)nting B. s title, and could ))e ejected
by B. ArhtMrumi \. A nuis/ruiK/ et <il., '21 C
P. 4.
On the !)th .lanuary, 1844, one .T. W. took pos-
session of the land in question, under an inden-
ture of lease for four years, executed by C, the
owner, under jiower of attornej', at the rent of
.tl.") a j'ear. .1. \V. renuiined in possession until
his death in IS.TO, when he was succeeded by liis
son, to whom it appeared he had prciviously sold,
and the son conveyed to the defendants, wlui
entered and had been in possession ever since : —
Held, that H., tlie ]ilainti(f', claiming under ( '.'s
will, was liarred Ijy tlie statute. Helil, also, that
as the entry of .1. \V. under whom the son and
the defendants claimeil, was under ('., defeii-
d.anta could not object to C's title at the time
<if \V. 'sentry, ('almacx. Scott, u ml Cn/iuacw
Eriv, 22 ('. I". :m\.
See, also, l.\., 1, p. 20.14.
XXVII. Actions Auaisst Lasdi-ord.
1. Trefi/Hhin.
A tenant at will cannot sue his landlord for
ousting him from possession. llettde.rmn v.
Jlurptr, 1 y. B. 481,
As to the proper nu)de of ple.iding an alleirci'
demise from the Toronto Club nf ci-i-t.^j,
rooms and ap.irtments in the dub liuiise tii ■
servant or steward of tlie clul), wlio relied imkh'
the said demise as giving him an exclusive i,,,,,
session ujiou which he could niiiintaiii trcsnicu
U'l/liaws v. JItn-kk, -) (). B. ()i:i. ''
Semble, that under the demise as set fnitli ji
the rejilication, an action of trespass could \\,y
be sustained. If the servant had been iuiiiii,
perly dismissed, he siuiuld have sued in a.-suiiMi
; sit for a breach of eontrat:t, not in tresiiass Un
taking possession of his apartments. Ili,
The plaintiff sued for breaking and euturiiii
' his close, the tresjiass being the enfiy of du
fendant's cattle. Defendant had leased j.iiid ti
plaintifl', and the cattle hail got in owiiij,' to tin
renuival of a fence, which sejiarated tlie lu-i,
I from the land leased, and which was ruuidveii In
the plaintiff, with defendant's assent, il iii,t l,^
j his directions. I'poii the special facts'aiid |il(a,i
ings set out, it was. Held, that tlic reiiiiival ol
j the fence by plaintiff would prima faije ixiibcj
I trespass extra viani, which the jilea adiiiitttil
and tliat if defendant's consent to sm li itniuv,!
( would jirevent him from setting it iqias a wvinw
I fill act, the consent should have been leiilicd :.
Held, also, that as it was necessary to take dnw:
I the nortli fence to use the right of way, tins ,ul
j justified the single »ct of tres]iass chained, .iinl
the plaintiff should have new assigned, if jjt
j relied upmi excess in the (piantity taken down
! or in leaving the space open too loiif:. Tiie
i plaintiff, therefore, on the ple,adiii"s and ivi-
denee, w.as held not entitled to recover. /'('<•/.■»,•,/
I V. H';.<oH, 24 Q. B. 41(J.
See, also, Wuxni v. I'liLitn/, 2.") (J. i; ;i07 n
'2071. "'
3. (ttli,r A''ti,ji!.^.
In .an action on a covenant in a lease, that tlu
defendant had not incumbered, assignini; as
breach a claim by A. and B. to certain lixturts
defendant jdeaded that before the lease of tin
plaintiff', the defendant had leased the same
mises for live years to (_'., who hail a iiL'lit
under the lease, to the tixtures : Ibdd, iiifajii
Cunu'i-ou V. TiirnttI, 1 (,>. B. .S12.
A. leased a mill for a term of years tri H,,
and I>., who covenanted to pay the lent witim
default, otherwise the deed to be imlland vdi
and .\. covenanted for ipiiet inisstssidn (Inriii;
the term, provided they should perform all tli
covenants. Two ipiarters' rent beiiiL; in anvar,
A. 's .agent broke into the mill, which was Imkiii
up, and afterwards obtained the key iium .niii
the lessees, and A. ilistraincd for rent sirIi prii
perty as he found in the mill, wliiili inovnl in
sufficient to pay the rent due, and ivfii
give u[) possession the lessees brouglit eji'ctiMCUt
— Hehl, that the le.ase being void iiy leasnii "
the noH-iiayment of the rent, and tiie distivsi
being equivalent to a demand, he was not iialJ«
to be treated as a tresjtasser for coiitiiiiiiii;^
possession, and that the lessor nf tlic plaiiitif
could not recover. (.Macaulay, .1., iliss.i /'(
d. Somerx et ul. v. Ihilleu, ■') y. It. ;i()!l.
Assumpsit forinoney lent, and iiii nicy liaiiaiijr
received. On the Gth September, 184l', ilinvifj
2002
le of i)leai\iug :ui Line>;c.l
•onto C'lu\. nf nit^ni
in the cUib house tn ii
lie cluh, wh<. iu\u>\ iii»m
m him an i'xl'Iusivc y,ns-
LM.ul.l n>:vint;ii« tVMvuss.
■he tlcuiise as set turtli in
"ion of ti-os'l):iss omM i„.t
servant ha.l hftu \myv«-
onhl have sue.l in a^suu.ii-
.trac't, not in tiTsjuiss i.v
tnients. /''.
Illlll (.'UtcvillL;
i^ntrv III ill-
2093
LANDLORD AND TENANT.
.'0'J4
lis ai>ar
for hreakin
B9 heing thL'
fcnilant luul leascillmul tn
■tie ha.lgotiuowiuut.itinj
wliicli sepaviitfil thr ruiul
' anil wlii'-'l'waf^iviMuVf.l ly
[efonaanfs assent it n..t )iy
„ the special tai'ts;u.ilvW:vi\.
■ Hehl, tliat the renioviil uf
Wwouhl prima fatie ox.usLji
, which tlie plea aiiimttiil
ant'a consent to su.-h ifumval
fromsettingituiia.axvnm;;.
tshonhlhaveheenrepUi.ll; -
it was necessary to tali. il.Avu
use the right of way tUw,K-
> »ct of trespass eliart:oi\..>M
' have new assigneil, il he
unlit V taken il"Wii,
e space open too ImiK- 'I'lie
re, on the pleaihngs
,„t entitled to recover
ihl
5 in the (pii
/'(<7.-ii/-i
;uii\ evi-
;';.-;;'i/'ii
|„ a covenant in a lease, tV,attl>c
,ot incnn.here.l, assiyum- .-v^ .i
. \imlRt'> certam lixtures
'^/thatl.efore tl.e lease of the
^ .1 tha.Uease.ltUesaua.VVe-
t.. ('•, ^vh.. hail a ns:l.,
U.-ia, I'U'al*!'
of tlie plaintiff, with his assent, in consideration I XXIX. I<kask of ('iiatiki.s.
„f £70 jifti.l (the nmney heing the proeee.ls of the Dcfen.lants liaving ontraete.l with certain
fivle of her own lan.lH), .)l.tame.l from the .lef..n- oomiianies for the mainifactnre hy tlieni -if plant
.huit a lease of certain premises, to lioM to her f,>,. their railway, c.nisisting of h.eomotives, cars,
,„vii use .Iniiiig her natural life, the .lefen.lant j.^, _ ,„„j lK.i„g'u„ahle to furnish the fun.ls aa
,oveuantiiig, at the expiration of the lease, to agreed upon, on tlie '24111 ..f Septemher, IS(lt),
,,av Hannah Ilealey, her livif.i ,iu<l it.^.^t.nis, the palled uiioii plaintills, who, nn.ler an indeiituic
sum ef t'''0 : ^I«l''. tl'-'it tiie plaiiitiU s remiMly, i^^„t,,.ivd into ..f that date, agivod to furnish the
It entitled to sue for the .t.'iO, must he under the f,„„,^ t|,^,„ „ecessary, as well as a sutlicient sum
ease in an acUoii of covenant ; !iiid_ tiiat having t.) ensure the coinpietion .)f the plant, i^c. Hy
the same iiidciitnre tiie plaintills acunircd an
assented to the .lemise to liis wife, he could not
iiiiw sue for the onsi.lurati.iii m.iiiey pai.l to the
ilofciiilant f.ir the lease, either as money lent or
jsniiiiiey had anil received to his nse. J/citlii/
',, IhHiiarU, IC. 1*. •2\-2.
I'laiutiti' deidared that .tefen.laiit having leased
tnliiiii certain premises, undertook to make cer-
tain iniiirovements, l)ut failed to do so. I>efen-
liMt pleaded that he did not lease as aliege.l.
The instruineiit when prodnce.l aiijieared not to
k a lease, altliongh it was so called in tlie wri^
-Held, that the ))iea shonl.l lie taken .as
en. I
ears
tothelixtures-,
rati, 1 a- 1^- •<'-•
'^^^'^i^t::;^t^:^::nnvi;i;::t|
aSe;'X^'i-^i^^"-'"'l
le.i vni.> ,,,.,,t lieuii; ni anwr,]
^iX:tr".>^ri'.icu.asi„iU
Int of the rent, an^
Ittoademand.hevvasni
Lv8 a trespasser U>r
void hv reason
il tlie lUsfi
t lialill
continnint' "
of tlie lilaiiit'l
,1 . iliss.
I',, -m.
M
irticles in i|iiestioii, anil
the same to defeiidantiJ
weekly sum or rental of
I, that the iiayineiit of
tiiig :-
that the lessor
I,,,er. (Macaulay
V Jiullen, ;• ^''
^r money lent, a.uUmi..yW3
the (ith Septemher, W-,
ahsohite title to the
therein agreed to lease
for three years, at a
$10(M), with a proviso,
the sum of $IOt"),."i()() at any time during tlie term
kUouIiI put an end to tlie same, and that it sliould
he lawful for defendants to hold, riluin. and pos-
sess the engines, ite., as their ahsniute property ;
2. That all sums hy the weekly iiayinents na
aforesaid ]iaiil hy defendants niider said a^ree-
luld he credited t
ment, should he credited to them on ace.iiint of
King ill etlect a .leiiial only of the writing as the 810."),.")(W, and on iiaymeiit of that sum, as
set out, and that the plaintitl' was entitled to in either ])roviso inentioned, the agreement
succoeil on the issiie. Held, also, that the plea should cease, itc. 'There was no express eove-
iilfercil lefence, the existence of a term not nant therein for payment hy defendants of tlio
kin" es. lal to the right of action. Coniirall
lal to the
s. Miii-phfi, ir> Q. H. '^tilr
In an action in the Sujierior Court for'hreaeh
(iieiiveiiaiit for (juiet enjoyment contained in a
Itise. tlie defendant ideaded ii.ni demisit. The
vlaiiititr .ihtaiiied a verdict for one shilling ilaiii-
.ycs, lint a certiticate for costs was refuse.l ; —
Helil, that the plea of non .lemisit raised a ipies-
tiiiji iif title, and that the plaintitl' was entitled
BiiiU costs, /'iirxci- V. ]irwllinnii-,,~ V. I!. IS.
-(', h. t'lianih.-- A. ^Vilsoll.
The iilaintiff had ((uitted possession of defen-
1 iliut's farm, of which he had heen the tenant,
tliiHighhis term had not expired, and there had \',tihi,la v. (I mini Tntiil- J>
I Wen no legal surrender of it, hut he had given
Kitice of liis iiitentimi to go, and defendant it
I jpiieareil was willing to get ri.l of him. Having
Itttmivcil a pnrtiini .>f his goo.ls he snhse.jueiith-
Ittturneil for some more of them which were
IWketlni) ill a harn on the place, of which he
jlailthc key, and on tiii.ling the outer gate of the
Ikm loekeil went to the defendant, who was
Idmliy, and r;'i|uested him to open it and allow
Ihiin to enter an.l get his goods, hut defendant
luiilseil either to oiien the gate or allow him on
Itkeiaini, anil altliongh he did not in exjiress
|temis refuse to give up possession of the goods,
jjury fimiiil that such was his intention and
Itkat the plaintiff so nnderstood him : Held,
IHigarty, ('. .1 ., diss., that this was not suUieient
p ciinstitute a conversion of the goods hy the
ptienilant so as to support an action of trover,
therefore that replevin woiiM not lie.
XXVlll. LlAIlII.ITV FOR NriSANCKS.
[Helil, that the landlord and tenant were hotli
Me for .lamages arising fr.nn a nuisance eree-
dliy the lanillor.l in the honse, .and continued
lie iiseil hy the tenant while occupying it.
Whim V. Jliililnsoii, 7 (.'. P. ."iOS.
said sum, nor any meiition of a deht due hy
defendants to plaintills: Held, I, that under
the indenture ahove meiitioned and the facts of
the ease, ilefeiidants were nexer the owners of
the locomotives, &c., in tiuestion ; that tli.'V held
only a contract for the manufacture tiiereof,
which hy tiie said indenture was assigned to tliu
plaintills, who thereunder paid for and hecauie
ahsolute owners of the jiroperty in iiuestion ; '2.
That the intention of the jiarties as inferred
from the instriiiiieiit was, that said instrnmeiifc
should only operate as a lease to defendants, an.l
not as a sale and mortgage hack of the sai.l pro-
perty. Drajier, ('. ,)., .liss. Jiniil: uf I'/i/ii)'
W. Co., 13i'. 1'. .TO-l.
Where the lessee of gooila wvenanted to re-
store them to the lessor " at the expir.atioii of
the term in as good or.ler as they then were,
reasoiial)le wear and tear only excepted." ami
the gooiUs dnriiig the term were destroyed hy
tire, without the lessee's default: Held, that
the exception, " reasoiiahle w ear and tear excep-
ted,' referred to the order and condition of the
goods so as to exclude had rep:ur, hreakage, &c.,
not arising from reasonahle we.ir an.l tear, hut
did not amount to a gimrantee of the continued
existence of the goods. ('Iidiiihi rli n v. Trt-
iioHlli, 'SAC. V. 4'.t7.
In .faniiary, 1872, the plaintitl', a musical in-
strument maker at Toronto, rented a piano to
one .1., at AVoodst.ick, at .■:>() permonth, with the
right of purclnise, the rent to go towanls ]iay-
ment of )iurchase money, which wa.s fixed at
•'J4i'>0 ; and several montlis afterwards, when .1.,
ha.l jiaid three months rent, i. written contract
was signed liy .1. The defemhint, ,l.'s landlord,
having caused the piano to he distrained for rent
in arrear, it was sold hy the hailitf for S'!), the
.lefen.lant heing the purchaser, and the defen-
.lant afterwards allowed .1. ??12.") extra in settle-
ment with him, making ^200 in all : Held, that
the evidence sutlieiently shewed the piano to be
the plaintiff's property, and that he was entitled
a nuisance exist at the time of letting, both to maintain trover for it against .lefeinlant :
lut ami owner are liable. If it arise after ; Held, also, that the sale to the defendant passed
tenancy is created, the tenant only is respon- nothing, for as landlord he could not himself
lie. It'i/ma v. Onler, 32 Q. B. 324. purchase goods sol.l hy his bailiff, under 2 Will.
11. i ■ i
; 1
if
J. and (lufciitlivntr, tlie defeiKliint's claim iiii^ht
be coinplote tiy tlieaul)8U(|Ueiitai'raiigeiiieiit witli
J., yut tlie iiliiiiitiir, (the "wiicr) was ntit bound
l)y it :— Held, also, tiiat defendant coidd nut set
iij) a lien for the rent as against the plaintitt', for
the distress was at an enil, and tiie goods in no
wav in the custody of the law. il'illianiti v.
Hi-'f-i/, L'.'u*. V. r)(ii.
Defendant in writing acknowledged the receipt
from tiie j)laintift', descrihed as assistant man-
ager of the flowe Machine C'om)iany, of a sewing
lUAchine, on hire for nine niontlis at •■?") a month
in advance. Pie agreed to jiay $45, tiie value of
the machine, in the event of its being injured or j
not returned ; and in default of payment of the !
luontldy rental, or the due fultilmcut of the
lease, or if the machine should l)o deemed hy
the lessors to he in jeopardy, the jdaintirt' oi- the '
company might resume possession of it ; and j
defendant waived all right of action for trespass,
damages, or replevin, hy reason of any action j
taken by the plaintili' or the company in resum-
ing such possession. The j)laintiff said he liad j
possession of the machine l)efore it was delivered
to defendant ; that he was responsilde to the j
company, a foreign corp4)ration ; and had no [
proi)erty in it except as their agent : — Held, re-
versing the judgment of the (.'ounty ('ourt, that
the plaintilV under the agreement might main-
tain replevin in his own name for the machine, ;
on non-fultilmont of the conditions. Cuquillard
V. Hiintcv, 30 Q. B. 310. \
Where A. demised to B. for a term of years, '
■with a clause of forfeiture in case the term ■
should Ije taken in execution, and contempora- '
iieously with the lease delivered certain chatt(.ls
into B.'s possession, upon the terms contained in
a memorandum attaciicd to the lease of the
premises, signed by M., stating that "he agreed
to alhiw the use of tiie chattels to assist him to
pay the rent and maintain his family," on an '
inter|deader between A. and ('., who had seizeii ]
the chattels under an execution against H. : — i
Held, allirming tlie judgment of the tViunty '
Court, 1 . that the memorandum formed no part !
of the lease, but operated only as a license to j
use, which was rcvocalile ; 2. that even if the .
chattels had been included in the lease, the chat- \
tela themselves could not have been sold, and j
that A. therefore was entitled to a verdict in the [
interplea<ler issue ; 3. that at the most the in- j
terest wiiicli B. had in the chattels was incidental j
to tlie term and to tlie enjoyment thereof by B., |
an<l that therefore neither the goods themselves j
nor M. 's interest therein could be sold separately :
from the term ; 4. that if the term had been i
seized, snch seizure, as working a forfeiture of '
the term, would have operated also as a forfeiture ,
of all l:>. 's interest in the chattels ; and therefore, !
Hehl, that upon all the grounds the verdict in j
favour of A. was riglit ; 5. that if it had been i
intended that only the defendants' siiecial interest j
in the goods should be sold liy the sheriff under
an execution, not the goods themselves, the in-
terpleader should have been fratned to meet such
a ease. MucklrMon v. Smith, 17 C. P. 401.
The plaintiffs, who were inano manufacturerB,
offered to sell to iM. a piano for §,S(K), and to
accept certain ajiproved notes in payment. The
piano was left with M., but this negotiation fell
through, and it was then agreed that M. might
Lave the piano on giving Ins notes at 1, 12, and
24 months for $100 each. These notes were si
to M., with a " rent receipt," both of wlildi w
signetl by him and returneil to tlie jihiiiiti
By the rent receipt M. was to have thi; ]ii,iiiii
hire at |0 per month for three month.s, ji,i\n
in advance, and M. might purchase it mi p.iv'mi
of tiic notes, with interest. But until tliuwli
of tiic purchase money was paid, the pinni) v
to remain the plaintiffs' property on liiro t,y _^
the plaintiffs to have jmwcr to retake iicissusn
witiiout demand, on non-payment of aiiv inH(
nieiit of purchase money or rent in udvaine a
altliough part of the purchase money iiiii;lit lu
been paid or notes given on .iccouiit theiv
The agreement for sale beiiii; coiKlitiiinal, a
punctual payment being essential to it. .VdUii
was paid on the jiiano as purchase nimuy nn,,
and on the 20tli .laiiuary, 1874, the liist in
liaviiig fallen due on tlie 18th, it was scIaiI nn,
an attachment .against .M. as an abscdiuliuj' ,1,
tor : ~ Helil, that no property in the piaini pass
to M., tiiat being the intention of the iiaitii
anil the legal etfect of the instrument : tliat t
arrangement was not objectionable as lii'iju'ci
traiy to the Cliattel Mortgage Act, ainl tlurifi
the plaintiffs were entitled to the piaim .i.saL'aii
M.'s creditors. SU'Kenson d at. v. Jtio '^
P. 245.
XXXI 1. MlSCKI.I..\NEOU.S Case.s.
Defendant on the 1 3th October, IS,')'.', j^nuU
the land in ijueation to. one S., to hull "toti
said .S., and the heirs of his body, fur twont
one years, or the term of his natural life, fni
the 1st of April, I8,'J3, fully to be coiii]iitti; an
ended," but not to be uiulerlet to aiiv iifrsni
except to the family of the said S. , for aiiv iiori i
during the said term. \ yearly rent was r
served, which S. covenanted to pay, aini it w
provided that on the failure to pcrfonii tliecdv
nants, the lease and the term tliere'iy u'lanti
should cease and be void:— Held, tliat liv ti
lease S. took a life estate in which the tei
merged. Per Robinson, C .1., the siierilf's ilci
would at all events have been iiiojierative, (iniJ
to the misdescription of the interest which [
held in the land, and of the amount of rej
Dali/e V. Robertson, 1»Q. B. 411.
The idaintifl's, in this case, though mily lessif
of tiie land, were held to be "i)ro]priiitor«" witll
the reasonable cfmstruction of "'{'he Itaihvf
xAct, "and entitled to recover for d.ainaiie dnF
to the land. Broirn ft nl. v. (irninl Truiil:\
W. Co. of Camuln. 24 t^. 15. S.W.
In action of trespass to land, where tlie jila
tiff is a tenant only the duration of liis terra r.i
be shewn, the measure of damages lieiiiir tl
diminished value of his interest. The trespf
complained of was removing a fence in .M-J
J800. The jilaintiff's landlady swore that?
leased the jdace to the plaintiff in .N'ovenili^
ISOS, and a(lded, " Plaintiff was niyteiiajit wis
the rails were taken away, paying w iiiiklj
year, taxes and statute labour.'' There wasl
further evidence as to the nature of the kvi<e|
duration of the term : — Held, that the daiiiaj
sliould not, as a matter of law, have hcoii iiii|
nal onl}% but estimated on the injury the I
the fence wouhl cause to the jilaiiititldiiniig]
five or six months for which he then hail a r
to possession. Fisher v. Uruce, 27 Q. I'. IJi
^••BEt
2()'JG ■ 2097
LAW SOCIETY
2ans
I, These notes were sent
■j.,t " hoth (if wl'ii^^l' wv.re
Bturne.l to tlie vlamtiffs.
was to have tlw. l>i;"iu mi
f„r three mouUi.s, pnyiiblf
^"t «ut until tllc^vl,nl..
^y was l.akl, the vmun wa.
,,oWcr to retake V'soe^xi""
,:;j,rreutinaavu,ue.„.l
' nrchase uu.ney miglit have
^.iven on account ther.u,
^,\^ beiuti conditional an.l
,eTnu essential to It. Nulhii.g
,,,. IS purchase nuniey or vent,
Sy, 1H74, the livst not«
t,elHth,itwassei/.e,luu,k.r
nit M. as an alwconainj; >kli-
..^^' in the iiiauo passeil
t.^heinstn.n.ent■thatth.
I ..hiecthmahlc as heuiK con-
;tStleUtheina.ioa.a^,^
MiscRX-i-ANEOua Cases.
rS filly t'-^--"'VWte and
'; tohe niulerlettoanyi.'vs"".
'*•, f thesai.lS., {<u- any veil »1
inilyot the sail ^^.^^^^^,.
1 tcmi. •'^J't'^'V,av,anait«s,
^•rTllCtoFH^nuthecov.
'" V'?l tern' thereby s;ianta
° rr ?oia Held, that hy the
m-A he xw ,,ich the Uim
^^V^""'" . t^^^oshevitVVlJ
Uohiuson, O. •'• ',„„,..,tjve,oNviuL
:nK::a'oft.ann,untof.,.
r::;^-!^-; ;;';t:;j::S
titled to recovct - "Vn.„/:
Brou-n et <d. ^j^"
irti
One T. leased preniisos for a term to R., who , w.a.s a purehascv for value, and that a jirior
siih let a portion of them tr) plaintill'. Afterwards ] voluntary convoyiinco was void as against him.
1,V eiidor.semuiit on the lease from I. to H., after | ('iiiiHii v. Elmer, Hi Oliy. 541.
nVitinL' that they had mutually agreed to release ! . ., , ' . , .,
ll, the oth. from the covenants and agree- ! '^ nulway or canal company cannot lease the
Ints contained tlierein, it was declared that f'"^"*'" .''r <l'';l«Kate its powers for a spec-ihed
'i,l lease was therefore wholly cancelled at and ! *?,':"• ^yt'.'""* the sanction of the legislature.
„m that date, and B. authon/ed 1. to collect! H.is principle was held applicable to a railway
L rent iin.ler tlie lease from him to i.laintitr. ! '-•'""l'"V>' 'V'"H'' i"}'^ »" l'"wer of taking lam
«;nl,He,|Ueiitly 1. distrained upon plaintiff fortvvo eompulsorily, hut had other special powers and
iters' rent under H.'s lease to liim. At the ' I'livileges under its act of incorporation. H,nck-
I<!l V. (lilderHhv.vi', H) thy. 2 r2.
lime of the distress plaiiitifl" had paid all rent
line for one (piarter, being the first distrained
fur, to one ('., umler an agreement with H. so
tiiilii, with the exception of a small amount still
miiiaid. There was a second distress for the
iitlier (jiiarter, the time of payment of both
(iiuirters having elapsed ; and there was also in
arrear at this time six months' rent under the
lease from I. to B. Vlaintiff thereupon brought
iiist I : - -Held, that the action must
Parties who for many years had the chief use
of a canal, and had always resisted payment of
tolls demanded by the lessee, were held to have
such an interest as entitled them to maintain a
bill (to which the attorney general was a defen-
dant) to have the lease declared void. Jfincklei/
v. (,'llilrr.il,rr,; 19 t'liy. -212.
One of two tenants in common of land, leased
Held, that the other
r("ii. --•-(;•- , 1 ;,
=u t<i land, where the V^u
trespass to lanu , ; t,„„,wJ
^^,,,lythed«ratim n. ^,^..,,^13
,e measure ot aauuvf, n
'^l,e of his »! "Il-f -f, r.„ q
,f was 'i^'"' llvsworctktJ
H .%lantiffwasmyteuai.t.X
lied, i- '*"'*■', ..avini; »» "'■"•1
L taken away. Vi'y'!' , J
H^^'totlSurcoftlielo.^^
lu'^V^"*"/ Held, that the damal
Ihe term ••-»*=,'^'' ,,^vc heennof
Lamatter'.{la^' t,,elJ
t estimated outh;jO.,1
luld cause t. tie i ,^^j ^ ^
lonthsforwhich'etu ^,1^
|. i-'is/ierv. Oi ('«.-' ^
iigainst further (luarrying, and to an account
against the lessee for one moiety of what had
been already (|uarrietl. llondciiuw v. /'iiri/ii/iar,
l!»('liy. ()14.
nil • 1 , that as the term created by the lease from I V'^^t of it as a stone cpiary
i.to B. continued to exist notwithstanding the ! tenant in common was entitled ^to an injunction
oaiieellation of the lease, the rent which was
iiitiileiit to that term coiihl be distrained for :
tliat that rent being unpaid might be set up in
this action of trespass, as shewing defendants
liiiil a right to take the goods, being on the de-
luistil premises, as a distress for the rent due,
u,st as tiiey might have avowed f(U' it had the
aitimi heeii replevin ■ •' The rent being ilue un-
ilerthe lease from B. to plaintiff, and B. having
iiitliiirized 1. to collect and receive it, defendants
miiilit set that up under the facts shewn as
jostifyiiig the distress :- -Held also, that if the
(iiiceiling of the lease by I. ami B. merged the
terms created hy it, the right of 1. to distrain
was preserved hy ('. S. V. (.'. c. itO, s. 7. Lcur
..WiteetoL, \SV.V. !)i).
The agent of an insurance company at Torou-
1 to negotiated for a lease to plaintiffs, who were
I hmsters, (fee., of one flat of the c(mipany's
(ices for three years at i<(VM) a year, and cxe-
I cuteil the lease on the part of the companj', con-
toiiiiiig the usual covenant for (juiet enjoyment,
1 jiul received the rent. The caretaker of the
whole huilding, who lived at a distance, locked
tke outer .street door at It p. m., thus excluding
Ithe iilaiiitirt's after that hour; and the agent
Uiuseil to let them have a key unless they got
I tke caretaker to be present :—Hehl, that the
liMuipany were responsible for this act of their
ligMit, which was clearly a denial of the jilaintifl's'
Iti^hteniuler the lease, ^fill^klnun> <t <il. v. The
LAND St'Itir.
Land scrip was deposited with a party as col-
lateral security, who sold the same at a discount :
-Held, that if on taking an account it should
ajjjiear the sale had been effected before any ile-
fault in payment, he must he charged with the
amount of the present value, but if after default,
then with the value at the time of the sale.
//(((•/ v. Boii-i>, 7 ("hy. 07.
LARCENY.
•S'ce Criminal Law.
J. AW REFORM ACT.
I. PUAITIt'F. I'miKK.
1. (I'lnenillji—Sfp, PRArTK'F. at Law,
2. Xotii-i' for Jiirii — .SVc Jtrv.
.3. Nrt'errlii(iC(ni.f('.'<f'r()iiiSiii>('r!iirli)Coiititi/
Courtx (iiiit Vtci' Verxa — .See Trial.
T. AOMISSION'
LAW socn: "Y.
OK ArroRXEYs-
a\d Solicitor.
Held, that the mere demand of rent hy the
Inccessiir of the lessor, of rectory lands (after the
|H|)iratifm of the term) was not such an affirm-
Ittceof the covenants in the lease as could estop
lliiiifrom disputing them. Kirkjiatrid- v. Li/nlcr,
]l3Cliy. 323; affirmed in appeal, Hi Chy. 17.
i)n moving for an order for delivery of posses-
loon, it must he shewn that the defendant is in
Ipojsession. Xo order will be made against a
|tenaiit or tliiril party in possession, not a party i See Lmr Sorkti/ v. Doinjiill, 'XQ. \i. 541
) the ean.se. MrKiiizic v. l^l(/;/(H.^■, 2 Chy. |
|('hml). HDl. Taylor, S('cnl<irt/.
.\ milling lease for i)!> years contained provi-
Ms ciwhling the lessor to demand, at his option,
krojalty ujioii the proceeds of the mines, or
' "1 in lieu of such royalty ; the lesssor had
W exercised such option : — Held, that the leasee
132
,SV.' ArroRNEv
As to the power of the Law Society of Upper
Canada, to make by-laws imposing term fees.
In the year 184(1, the Law Society of Upper
Canada entered into a covenant with the crown
in c(niforniity with Vict. c. Xi, to provide, at
their own oost, and without further charge to
the province, for all time to come, fit and proper
accommodation for the Superior C(nirt8 of law
and ecjuity for Upper Canada, as then existing
}'r ' V ■
m^i
'■:-■!
'■ i
2090
LEAVE AND LICENSE.
1^
or thereafter to be constitutotl ; and in defiiult,
or ill case of the liuildiiigs l)ecoiiiiiij,'ililivi)i(Uitetl,
Sic, the I'rowii to lejiair, itu. , niicl tlie outliiy to
becDiiiu acliar;,'e on the Society's hiud. (di the
exeeiitioii of this eoveiiaiit, i;(!,000 was jiaiii over
to the society liy tlie jfoveniinent, and ))roi)er
aeeoniiiiodatinii was jiiovided liy tlie former for
the then exinting courts. Siil)se(|ue!itly the
Court of Coninion I'leas was estalilished, and it
l)eeaine necessary to eidarge the huihliugs in
which the courts were liehl at a greatly euiiaiieed
outky. The IH Vict. c. 122, 20 N'ict. e. (U, '2'2
Vict. c. 'M, and V. S. U. C e. 3',i, were jiassetl
for raising funds for the purpose ; anil the
moneys authorized thereby were expeiidcil in
the erection of Osgoode hall, for the acconuno-
dation of the courts, in 18()."), at the re(iuestof
the society, a certain sum was suiijilied by the
governient for necessary rej)airs to the building,
and by subseijuent airang'.'ment with the (Intano
government, the latter agreed to pay the Society
annually .*3,()00 for the purjMise of heat and
light : — Held, per ilagarty, ('. J., that not-
withstanding the greatly increased expense, since
the establishment of the Court of Common I'leas
and the passage of the acts 18 A'iet. c. 1'22, 20
Viet. e.()4, 22 \'ict. c. :{1, an<l C. S. U. C. e. 33, of
repairing and maintaining the buildings at ( >s-
goode Hall, the society was nevertheless bound
by its express covenant entered into in confor-
mity with !) Viet. e. 33, to repair and maintain
them, and was not impliedly, naich less expressly
released therefrom in eonse(iuenee of the legisla-
tion that had taken place in relation thereto.
Per (ialt, J., tiiat the etlect of 33 Vict. e. !», (>.,
was to entitle tlie law society to have the govern-
ment account to them annually for the sum of
S'2l),000, and that this sum must be considered as
a {irovisiou to enable them to perform their cove-
nant, and that eonseijueiitly the same was in full
force. PerCiwynne, .1., that the effect of sub-
sequent legislation had been to discharge the
society from tlieir covenant. Ji'i'i'diii v. Tlir
Law Soclcti/, 20 C. P. 4!)0.
Held, aHirmiiig the above judgment. < 1 wynne,
J., diss., that the Law .Society were not released,
under the facts and circumstances there set forth,
fnmi their covenant, and that no estoppel arose,
in favour of the society against the crown, in
eonsecjuenceof the several acts of the legislature.
-S". C, 21 C. P. 22!).
LAW STAMPS.
The fees on a reference to a county judge from
the Superior Court, such as an examination of a
ju<lgment debtor, must Vie iiaid in stamps, not in
cash. Ji(iiii'.f V. J<iiii:i, 4 P. K. 194. — C. L.
Chamb. — J. ^Vilson.
An appearance to a wi-it in the Common Pleas,
was flle(l in the office of the deputy clerk of the
crown, who was alsfi clerk of the County Court,
but by mistake was jmt with the County Court
papers, and a stamp necessary for an appearance
in the Superior Court was not fixed. The plain-
tiff signed jnilgmentas on default of appearance :
■ — Helil, that the appearance was a nullity, and
was absolutely void under the stamp act, and
leave was refused to have the stamp affixed as of
the day of tiling, or to take it off the County
Court tiles. Jiaiik of Moittri-dl v. Ilurrhon, 4
P. K. 331.— C. L. Chamb. -Draper.
An appeal bond and the affidavit of oxccutji
thereof are se]iarate documents, and miist i
stamped iw such when tiled. Marin lit v. \/„„,.
I Chy. Chanil/. 2051.— Van Koughiiet.
The recent act respecting' law stamps liixsiiui,
11 1 alteration in the jiraetice of the cum t as i
the mode of computing the proper ainmuit i
fees. 1 1).
LEASK.
.SVe Landlohk and Tknant,
LEAVE AND LICENSE.
1. Pi.KA OF IS A<'Tio\s OK Tkespass— ,9,
Tkk.si-ass.
II. DkKESCF. in AcTMJSS FOK InMIHIKS Dccj
SIONKD BY MlI.I.-DA.MS— AVc WaTKK AN
Water Courses.
In an action of covenant, a plea of leave an
license by parol to commit the breacli, i.s lud
(iin/iinr V. linifk; H. T. 5 Viet.
A ))lea of leave and license is no answer tdiii
action of covenant. McDaintld <l nl, v iln-ii
Wixin-ii li. W. Co., 21 Q. K 223.
The plaintifl', in co\'enant against the fatiier
alleged as a breacli that the apiireutice unlawful^
absented himself on a certain day, and tnni
thence hitherto remained and continued iiljseii'
from the service of the plaintitf. Plea, .is to ciii
absenting', that the apprentice tlid depiirt aiu
absent himself by plaintiff's leave and license :-
Held, sufficient, without jileadiiig a license t(
continue absent, as the plea only professed t
answer the absenting : — Held, also, that the iik-
need not shew that the license was liy deeil or n
writing. Black v. Sfn'eii!<oii, 3 Q. H. KiO.
Quiere, whether long possession of an easeinen
in land, though it may not sujiply evidence o
a grant, may be received in supjiort of a pleao
leave and license. Brown v. Stnet, 1 Q. B. \i\
The plaintiff' declared in assumpsit on an agree
ment with the defendant to make 100,000 i)ri(.kj
averring that he had made 08,000 of tlieui, m
prepared in pfirt 30,0(K) more, hut that defcn
dant would not allow him to complete tiiem, k
absolutely discharged, hindered, and i)i'evente(
him fr.mi doing so. Defendant pleiidecl, that th
plaintitf entered upon a close of the defendaa
to complete the work there, and that defeiulan
prevented him, as he lawfully might, whidi w«
the same hindering and preventing : the jilaio
tiff replied leave and license : -Held, replia
tion good. Tokman v. Cn-ir, 2 Q. B. 18li.
OO. S. 271.
The plaintiff went to British Columliia iiii|
years before this action, leaving his wife lier|
to whom he wrote and occasionally sent niniiei
She procured the defendant to endorse a iia
made by her for the price of fiiniiture to can
on a boarding house, (which she suhseijueiilj
carried on with the plaintiti's knowledge,)
executed to defendant a chattel mortgage unj
seal ill her own name jii said furuitiire.
lLijM;id.f fc 'M
2100 ■ 2101
LEGACY.
2103
tUc affiuavit of cxitiitiun
ocuineutH, iviiil m\isi U-
lileil. .^/'"■'"''' \' •'^'""i''.
ctint! livw Htiviiiv» li'^'* "«"**'
ivactice of the emit !is \.u
iig the l>v<il>t;v auinuiit ut
,KASK.
,iu) Asn Tk.nant.
AKT) LICKNSK.
Ai-noNS OK 'ruF.srAss^,s\.
Actions vor In.hkif.s u,( v
Mn.;..AMS-.SVe\VMF.UANl,
OVBSKS.
covenant, a Vlea of Wav.an.l
o connnit tlie hveacl., i. U.d.
jt '1'. 5 Viet.
an,Uicensei9noa»'toau.
";21Q.B.2'23.
„ covenant against the faUier i
r t nay^u.t Buwly enM^
l\cceiveainW'rt|.{'Vrlu^
je 7{c<'f" v. StrnI, I Ij. »•
lleclare.Unassumv^.n^-^J^
Lfenaanttoinake^WtWO "J^
fc- «,t to British Columhia nij
p went to ^\' biswleM
lvc,tc and occasional .^^
■or the 1'"^'^ , ,^g 8n\)se>iueii<
rr*"' ^S's Sunvleage J
IVYJa Stll'-
rent of the house being in arrear, and part of
the inortj^aue money overdue, the landliu'd dis-
twiiu'd, and defeiidiint enforced his inortgaj'e ;
1111(1 tlie plaintitr'a wife not dissenting, Itnt rather
assenting, tlie goods were sokl, and tlie balance
after jiaynicnt of runt iiiid mortgage, was handed
over to her. The plaintiff tliereiijxm sued de-
icmlaiit in trespass ami trover :- llehl, that tlie
wife was the agent of her hnshand, the plaintiff,
ill respect of purchasing the fnrnit-ire, and to do
ill! that M'as necessary to acquire ii. Helil, also,
that as hy this action the jilaintitr ratified the
lomhictof his wife in purchasing the furniture,
he should not he allowed to r<'])iidiate the mort-
gage which formed part of tlie whole arrange-
ment. Semble, that the wife standing by ami
Tierniitting the sale of the property under the
nuiitgage was some evidence under the iilea of
have and license. J/al/'juiiiii/ v. I'lnnwh, .S.'t
Q, B. •-"2!).
l.EATHKH.
Sea HlDE.s.
LH(iA('V.
!, All.VrKMKNT, 2101.
I, Adkmi'TIon. 2101.
ill. A.SSENT OF EXECUTOKS, 2102.
IV, Miscellaneous Case,s, 2102.
V. CONSTRI'CTION OF WlLI.S—.SVr WlI.L,
I. Abatement.
, Payment of a legacy in full is a prima facie
I jilniissionof assets to pay all the legacies in full,
I liwause otherwise all the legacies must abate in
1 piiortiou ; but it is open to explanation. Culc-
I m\\ V. Wliik'heaif, 3 Cliy. 227.
The jirovision for the widow of a test:itor and
I itrtaiu legacies being charged upon real estate,
I ibich it was apprehended might prove detieieiit,
legacies, not the provision for the W'idow,
Uere unleied to be abated ratably. lice Ice r v.
I J/iKiiimim/, 12C'hy. 48.5.
.Uestator out of the proceeds of his real and
Ifereonal estate gave to one sou !?200, to another
IM, ami to the third .i?l,800, the balance to be
l!c|nally divided between his daughters, six in
lumber, naming them. By a codicil he revoked
|tlie k(|iiest to the second named son of -iflOO,
1 gave an additional sum of .iJilOO to the first
Imeil son. The househohl furniture to be
|(i|nally divided between his two daughters last
Iwned iu the will : — Hehl, that tlie.se legacies
litre speeitic and not merely demonstrative, and
i fund was insufficient to pay them all, they
Imist ahate iiroportionally. Jiltrkir x. llVuVf, 23
lay. 163. , _
II. AUEMPTION.
,.\ testator heiiueathed to W. L. f 1,500, "due
Vietii R. (J., and secured by mortgage. " After
' '■ making of this will, and in the testatiu-'s
fstiuie, K. C. sold to ouo H., the property
mortgaged, and the testator, to laeilitate the
sale and secure the deot due him, took from H.
a mortgage of this projierty and other property,
and a covenant to [lay the amount ; retaining in
his jiossessioii the mortgage fidiii I!. ('., umler
which he held the legal estate iii the land, and
the bond originally obtained from H. ('. for liay-
nient of tlii^ debt. 'J'lie testator died without in
any w,iy altering his will in regard to this legacy :
-Held, that the legacy was not adeemed. Lur-
iiiij V. Ijiifiii'j, 12 ( 'hy. 103.
III. ASSKNT OK KXECITOliS.
The assent of an executor to a legacy, m.ay bo
by implication as well as by exiircss words, and
in this case it was held to be sutiiciently sliewn
by his conduct. Ihninln rg( r v. J/ciislii'ri/i r, .5
()'. ,S. 47!t.
In ejectment it appeared that (". died in 1851
intestate, seized of an unexpired term of years
in the land, and leaving an only son, M., who'
remained in possession, and on his death, in 18.')7,
devised it to his uncle, •). I)., for his life, and
then to the iilaiutiff, the testator's child. y\. I).,
another umle of the testator, wa.s aiiiioint-d
executor. He saw . I. I), in jiossessioii after M.'s
death, ami was himself living on the place, but
ill 1858, he, as executor, conveyed the term to
one V. ; and afterwards, in 18(iO, .1. I), adminis-
tered to (.'.'s estate, and as such administrator
assigned his interest also to F. under whom de-
fendant claimed. The court being left to draw
the same inferences as a jury, and the defendant's
claim appearing to be dishonest: — Htl, that
the ])laintiff must succeed; that on the death of
C, her only child, M., remaining in p issession,
became entitled, so that .). I ).'s dec I as admin-
istrator conveyed nothing ; that there was sutli •
cient evidence to infer an assent by M. s execu-
tor to the beipiest to .1. !>., which would exteiul
to the subseiinent devise to the plaintiff ; and
that his conveyance as executor was therefore
inoperative. Tiahoii v. Lctmnj, 21 (^». H. 2l().
When an executor jtays some legacies, and
makes provision for the others, he has not con-
clusively admitted assets, because the provision
which was made for the unpaid legacies may
have jiroved insuthciciit without any fault being
attributable to him. Cvlfindu v. Wliitvhvutl, 3
C'hy. 227.
Wiiere the legacies were payable in a year
after testator's death, and another legacy would
not be payalde for twelve years, and did not
bear interest in the nieaiitinio, and the executor
paid the legacies iniinediately payable — suHi-
cieiit property to all aiipearance remaining to
meet the future legacy and let the residuary
legatee into the cnjoynient of the residue, on his
undertaking to pay the legacy when it became
due out of the assets ; and subseijuently, with
the assent of the executor, a portion of personal
residue was appropriated to the sr.tisfaction of a
devise of land worth a certain sum, or its pro-
ceeds : — Held, that the executor hail not so ad-
mitted as.sets as to warrant a personal decree
against him at once. 1 h.
IV. xMi.scei.laneou.h Cases.
Where a testator had bound himself by bond
to pay to his mother jCli 10s, aiuiually, and dc-
il
2103
LinERUiA[ TKNKMENTUM.
vised part of hin lamlH to IiIh hrntlierH, nn con-
dition that tlicy xhoultl piiy to IiIh niotlicr i'l2
lOs. per aiiinini, nnil pay nil Iiih jtiHt delitH, mid
made them his exeeuturM ; I[uld, tliat at law the
legacy could not l>o coiiHidcrcd an a Hatixfaction
of the annuity in tlie liond, and that the niotlici'
was entitled to both. < 'n/i- v. ( 'nli; Ti < ». S. 744.
Defendant delivered to the deceased wife of
the plaintil)', a note in payment of a legacy be-
queathed to her, and kIu; died before payment :
- -HeUl, that a plea, that the wife a« payee of
the note had died before the i)laintiiniad reduced
the legacy or note into poHHcHHion, and tiiat he
had not administered to his wife's estate, was a
good answer to the husband's aeti<in on the note.
Jiobhixtm V. t'rljt/ii, it ('. I'. liSl.
By an agreement entered int(» between the
executors of an estate in Ijower Canada, and the
residuary legatees, the former agreed to settle a
f)articular legacy, and indenniify the residuary
egatees from it. According to the laws of that
country, interest in not recoverable upon a leg
acy until suit brought therefor, without an ex-
jiresa promise ; and the legatee referred to having
sued there for the legacy, alleging an express
promise by both executors and residuary legatees
to pay such interest, in which action the execu-
tors denied such promise, and got a verdict, but
the residuary legatees allowed judgment by de-
fault, and afterwards liled a bill in this court tu
compel the executors to indenniify them against
the liability they had incurred. 'J'he court, un-
. der the circumstances, dismissed the bill with
costs, ('nidkuv. Turrtinri', (i (!iiy. 518; allirmed
on api)eal, 8 t'hy. '2'2{).
fjcgatees are not necessary parties defendant
in nn administration suit. Jldrri.idii v. S/iair, '2
(Jhy. Charab. 44. — Mowat.
In a suit by a residuary legatee for the admin-
istration of an estate, the jdaintiff rc}n'eHents all
the residuary legatees ; antl the other residuary
legatees are not entitled, ns of course, to charge
the general estate with the costs of appearing by
another solicitor in the master's office. To en-
title them to such costs, some sufficient reason
must be shewn for their being represented by a
aeparate solicitor. (Joiiutm v. ilovimm, 17 t'hy.
38(i.
Where no letters of administraticm had been
taken out, and a legatee was entitled to a very
small sum, an order was made for payment of
the amount to the solicitor of the legatee, witli-
out letters of administration, he undertaking to
ajiply it as intended. Rmn v. Itw^f, 4 C'hy.
Chamb. '21.
LEGISLATURE.
Six C'oN.STITUTIONAL Law— rARLIAMENT.
LETTERS.
I. Ok AnMtNisTRATioN— (Vcc Exeoutoks and
Au.MINlHTKAlOli.S.
IL Makinu Conthacts by— ^ec Contract.
IIL AUMI.S-SIBILITY IK EVIDENfE— iS'tC EVI-
DENCE.
IV. I'atk.nt.
I. For Lilllils- Sit VwiWW l,\\|,s.
'2. Fill' lliri llfilllli Sir I'aIKSI liii
VK.srioNs.
v. J!ii(IATOJIV--X((' EV1I»F.S( K.
\'l. TitANS.MI.SSIO.N OF .S'w I'dsrUiKliK.
A foreign jiost nuvrk on a letter is pi in,;, f„,
evidence of the time when the letter Wiis i|i.,ii,
oWriU V. J'lrrin, M. T. 3 N'ict. '
Extracts from a letter embodied in an atliilii'
cannot be noticed ; either the whole Icttiid
copy should be before a court, or ,\t |,M|nt
should be sworn that the letter contains nutlii
more relating to the action. I'l/'/i/A/i/, y /,',
'7 ((/., 8 (^ 15. .")(»(».
To an action on a lire imlicy, dcfcuilaiit set
a condition endorsed on the (lolicy, tliat anvmi
scijucnt mortgage of tliei)ropurty'iii,suivil ''nn;
be notitied to the secretary in wiitiiig Initliwit
otherwise tile ])olicy shall be void." Tlit,' iilii
titf mortgaged part of the imiiicrty iiisuied
one Mel"., who mailed a letter to ili fciiilaii
secretary, notifying him, as rcipiiivd liy tl
condition, but the letter did not iiac li liim ;
Meld, that the mere posting, Mitlmut slawii
that it reached the secretary, was not a cni
pliance with the condition. MfCiinii v. '/;
Wiili'i'loit Ciiiintii MhIiiiiI Fin- /ii.inrniifc I'l, •
i). B..37().
An interim receipt for .an insuraiic(! iirt'iniiii
jirovided that the directors should lia\o ii,m,
to cancel the contract at any time witiiin tliirt
days, " by causing a notice to that clftrt tu i
mailed to the applicant," at a si)ecilieil adilrcs
The general manager of the comiiaiiy inoviil tli,
he directed a letter declining the risk tn he
to the plaintiff : that he s.aw it written
placed with other letters to be sent : iiml
one If., a clerk in theotKce, had charge nf tl
and his duty was to address them to tiie jkiv
and enter them in the mailing book. The uii
in^ book w.is, jiroduced, with an eiitiy in
this letter ; and H. swore that this entry \\:\
his writing, and that he had no reason t
that the letter had been mailed. The plaiiitilf
insured), however, swore tli.at he liad iievu
ceived it. Per Hagarty, ( '. .1. ( )n this eviil ..
the (piestion of mailing must have been siilmiitt
to the .jury, who slKudd have fouiul that it
been mailed. I'cr (Jwynue, .J. A venliet tin
ing r)therwise c(mld not have licen sustaiiii
The case, however, was decided in ilol'eiiilaii
fav(mr upon another ground. Jiiliiisinii v. T
I'rin'iiiciniJns. Co., C. 1'., H. T. 1877. Nut
reported.
th
LIBEL.
.b't'c Defamation.
LIBERUM TENKMEXTL'M,
.bt'C TKE.Si'A.'jij.
**'''J,!r.
2lui
<.. ,Src C'liOWS 1,\M>~.
lloii.^ N'-' I'vir.M Kui; Is
s.
,. KvUlF.NfV..
wlu^ii tlio kttor \v:is maik.l
I. T. 3 Viit.
ettfruii>l»»l''''^ iiiiiuatliiUvil
eitiiiT till' Nvholc 1( ttci- (ir 11
.{ore !V e'.urt, or at Uast it
at tlic Wttur ^'iiii tarns iwitUmiJ
'' illlifililll V. /l<i.<
ilO.')
LK'ENSE.
-•loa
,l>e ai'tum.
a tiro policy, •^^f"'!'^'"'^'"'^ 7
e.\,mtbt.voli.y,tbatauyM,l.
„ftUc,.roiHH-ty.nsiuva mM>t
ecreuVy>''^vr>>ng ;;'-tlnv.th,
vrt of U.c l.volK-vty inMunl n
naiUMlakttortoa..Ma:ms
inn him, UH .-cnuuca >> tli.
,c letter .ii.l not mu^l, urn ;
uere vo.ting, v,tl>o.t sIk.v,
the secretary, 'jvas nut a c. n
rcouAition. ;U.'' ;v. ;.
,..;„t for an iusuraurf yvmwm '
rtireeto s slu.nia luvvu i^uw^^^
* fit vtnv time ^vitln^tl,irty
V ,„t " at a Hliet-itied aililrcss,!
fc^ti.ecou>;.anyv-v.Ui4
' ter.leoliuiug thensl;tobc.s.nl
tf* t at he saw it written luu I
I 1 4.V..ri e l»a.l no reason to ,l»u,l
;"T Mmist avebeensulmiittel
ho 8h«'"l'l nave' j;^,^,i„J
revel, "» . hilni^tui^- '1
i. Co., *-■*•• ^
LIBEL.
.Se,. UErAM.vrws.
See TKEsrA'iS-
II.
Ill
IV.
V.
VI.
VU,
VIII.
For Ka.sk.mkxts,
I
1. O'niii/, •-MO.'t.
'J. Kn'iictitiiiii mill I'oiinliriiKiiiil, '1\{\^.
|•'^)l^ UsK OK ClIAITKI.s, '21 12.
I
To <'l"r ( 'liows TlMIIKIt — .SVr Chown
l-AXDS. I
UlI.I.IAlUl TaMLKS S,i lill.l.lAKIl TaIII.K.-^
— MUNltll'AI, CoUI'OKATIONS. !
Fkhkik.-*- Si'f Fkhuv.
Hawkku.s ami 1'i;i>i.aii.s- .Sm Hawkkus
AM) I'KIH.AKS — MfNiril'Al, ColtroK- \
ATIONH.
OriIEK MUMCII'AI, JJCKNUKS- .SVr Mu- '
MCIPAI, CoId'OllATIONS. I
'i'vVKKNS AM> .SlIOl'.S— ,V((' TAVKUN.-i ANP
Shops. I
I'l.KA OK -.SVc TiKAVK ANdTjiKSSK TUKS- 1
rA.><s - Watku AM) Watkk Coin.><K.><.
I. Kolt F^ASK.MKNTS.
1. ilriiiil.
(iiso for ovorHowiiig iilaintifl'.s land, l^nii're, i
whether lony posse-ssion of an easement in land, \
though it may not Hnpply evidence of grant, may
k received in .support of a plea of leave and i
haiise. Iiri)ini v. SInit, I (^ J{. 124. I
j'resp.vss ([. c. f. Pica : libermu tcnementum.
Kephwitiiin : demise to defendant from plaintiff }
imiii year to year, llejoinder : That nflir the
ilemiae, it was consented and agreed that ilefen-
ilaiitaiiil his servants, &c., siiould have leave to
iiassand re-pass in and over the close, in wliich,
k ;— Held, that to siii)port this rejoinder, a
written agreement at least, if not one vmder seal,
shdulil he proved. /iroinj/Kiiii v. liiilfuiif, 3 ( '.
1V297.
Trespass to south parts of lots 14 and 15, and
taking and converting wheat and straw of the !
jihiiitilf— I'lua, leave and license generally. In
siimmrt (if this plea, defendants proved a deed
mile by plaintiff, 20th February, 1840, whereby i
in cimsiilcration of £28 received from ilefendant |
I T., he " hargaineil ..nd solil" to him, amongother |
I things specitied, "twenty acres of wheat then i
I jriwing (in the south part of hit 14, and in the i
jilaintiff's iioaseasion, the plaintiff bargained and \
hoW'allthe said twenty acres of wheat, with
tke right (if ingress and egress into and from lot
14, til harvest and reuiove the said twenty acres
li wheat. Tiien followed a proviso that if
plaintitf sliiiuld pay to T. £28 with interest, on
ailay named, the deed should be void. Plain-
till covenanted to pay the money, and it was '
itiimlatcil that, until default, plaintiff might'
Utainin hi.s iiossession and use the goods and I
Utcmiscs mortgaged, uiihiss he should before '
I the (lay of jiayment be sued by any other per- j
I M, in whicli case T. might take and enjoy the i
j will giioils 118 his own : — Held, that defendants
[miistlail under their general plea of leave and]
ihcinisc, the deed giving no right of entry on lot
|l.i. Senililo, that if tlie license to enter on lot
I H gave a right to enter on lot 15 iia being neoes-
lur)' to the piivilege grautvd with respect to lot
I 14, thoy shouM have in a Hiifcinl plea set forth
the lU'iTssity. Held, that ilefendants nnist fail
also, as the license was not to enter and take the
plaintiff's whe.at, but to enter for the pnriiosi! of
taking the defendant's wheat. Scinlilc, also,
)ilea bad, as the license proved was eonditioiml
and not aliHolute ; there should have been ii
sjieeial plea shewing default in payment by jilain-
titl' on the day name(l. Sumlile, that tlie only
right the deed gave the defendants was to cut
and carry away the wheat of the plaintiff; the
defendants liad no right to enter on the )ilaintiff'H
land and take the wheat away by force, after it
had been cut and stacked liy plaintiff. I.itnii v,
Tiinii'i-il iil.,M.l. li. 282.
Soluble, that though a license given by plain-
tiff to defendant not under seal will not create
an easement, yet that it may be sullicient as a
license to prevent the plaintill' from recovering
damages for the erection of a dam as a wrongful
act. Iliiliiiixiiii v. Fitli r/i/ it nl., 8 (}. 15, ;J40.
Oase for ovt^rllowing land of the ( 'anada Com-
pany, hefendant produced a letter to one S.,
under whom he claimed, from the plaintiffs' agent,
saying that the land would be sold to him for the
purpose of erecting a saw-mill, on certain speci-
fied conditions two of whicli were, that the
mill should be in operation within twelve months,
and that he shoidd furnish the company, or their
settlers, witli lumber at a reasonable rate : —
Held, that this letter could not be construed as
a license to defendant to overtlow the ]ilaintiffs'
land to any extent necessary for working his
mill, without clearly shewing tliat the probable
effect of building the mill and jiuttiiig up the
dam, was known to and contem]dated by the
parties at the time :- Held, also, that the plain-
tiffs as a corporation could not be bound with
respect to such an injury its was shewn in this
case, by anything done by their ordinary agents
without special authority, ('niniilii VntniiKiii/ v.
/'i/fh, !» (.1 w. cm.
The |)laintiff had purchased from the Canada
Company all the merchantalile timber on a cer-
tain lot, and held a letter from them (set out in
the case) authorizing him to enter upon the land
and mark whatever trees he might choose, and
afterwards to cut and carry tliem away :- -Held,
that he had not such a possession as would enable
him to bring trespass, (.(ua're, what remedy ho
eouhl have for trespa.sses on tlie land ; whether
he could support an action on tiie c;ise against
tlie trepasser for interfering with his privilege,
or would be compelled to hiok to the company,
treating their letter as an agreement. I'crnj v.
liiiik, \-H). H. 451.
Trespass against a sheriff for taking plaintiff's
goods under a ti. fa. The goods in (juestion, au
engine and boiler, had been in a saw-mill which
was burned down, and remained there, set in brick
and bolted to timbers let into the ground. The
sheriff offered them for sale while in this state,
but there were no buyers. On the return day of
the writ, the executicm debtor scdd them verbally
to the jilaintiffs, who detached them from tlio
mill and removed them to another place, where
the sheriff followed anil sold under a ven. ex. : —
Held, that the first attempt at sale was clearly
illegal, as the goods were then fixed to the free-
hold and could not be taken as ch.ittels. Qua're,
whether the verbal sale was effectual, or whether
the Statute of Frauds would apply. Semble, that
21(»7
LTCKNMK.
2lu
it wiiiilil not, Imt thut tlic Miilr wmilil, in ctltiL't,
uniount <>nly to ii liicnMi' tn tin; viihIl'i' tii enter
on thu Innil mu\ ilftiu'li t\w. uihmIm ; iinil i|iiii'n',
wliptliur i>n licing ho hcm^'ciI, tin' Ii. In. woulil
not uttiich iijion tliuni. II'iiIIhh tl nl. v. Jnrrin,
13 Q. K. <il<(.
I))ift'iii1iint lrii>M'(l to M, II lot of litnil for '.'.1
ynirH, for tlii' |mr|ioHr of lioriiiK for oil, Hiilt, or
niint'i'iilH, M'itli i'i;.;lit of in^rcHH lunl c^^n-HH in ii
(HTtiiin ilcMi^'natcii nianiici', M. \viin to \>iiy iin
iiilvanre of !*'.i-> on oil, and ono t'iylitli iiiirt, uvcry
tliivi- niontliH, of all oil olitaincil, ami wiin to lie
a11ow(m1 two ycai'H for tcNtiiiK tin' oil licaring
cliarai'tcr of tlic li' I, wluii', if oil wan not fonnd
in paying ijnantituH, tlic Iciihc wuh to Im null ami
voiil, nn<l plaintillH wi'iu to rtitiiin tlu! i*.'J."> ail
vani't'il. iHifcnilant \va« to liavc the five use of
tlic! proiniHi'H for agricultural imrpoMcs, except
Hueli ]iortionrt aH hIioiiIiI lie reiiiiircil for the oil
(ipuratioiiM. <^uiere, whetiicr tlie iiiMtrnnient ill
(lUOHtioii aniountcil to a leaxc, or wan a niere
lieenHu to tiorc for oil, salt, or inincralH. liiun-
niifi-plal. V. .]f<irniM, 17 C. I'. 4:iO.
Declaration for lireaking ami entering the
]ilaintitl"H done, ami cutting ami carrying away
the grain. lOoiiitalile plea that the plaintiiriielil
the laml niiiler an imiciiture of Iciimc from ile-
femlaiit, on the negotiation for ami execution of
which it waH verbally agrctui hctween them, ami
thu true agreeiiient war*, that ilclemlant hIioiiIiI
liave the right to enter ami harvcHt the crop
then in the groiiml .son^oI liy him ; thut when
tin.' leiiHc wan executed, a reservation of mucIi
right in it wait HiiggeHted, Imt omitted on the
]ilaintitr'H axHurance that it was unnecessary, as
the agreement lietwceii them was well under-
Btood, and defendant would lie allowed to take
thu crop ; and that the entry, iVc, in pursuance
(if such agreement, is the trespass eompliiined
of: -Held, plea good, for the imiependeiit ver-
bal Agreement made in consideration of defen-
dant Higning the Ittase, was good as an agreeiuent,
tlioilgh defendant, liy the 4th sec. of the Statute
of Frauds, might lie iircveiited from suing on it ;
and as etplity in such a case would decree spu-
uitic porforinance, there was ground for a per-
]ietual injunction against this action. (^Uicre,
whuther the plea was not also a justitication at
law, as under an agreement which was valid to
protect the defendant, tliongli he cinild not have
enforced it liy action. Jfriiiiiin.^ v, h'lnniili/, '2'.)
Q. B. !I3.
M. , the owner of land adjoining a railwa,.
took down the fence separating it from the tru'ti,
■with the assent of the railway coinjiany, iii order
to supply them with wood cut upon thu hv-d.
He then sold thu land to oneC, stipulatin,; /!,;.'
he should retain one or two acres on whicli tliis
Wood was jiileil, ('. afterwards luasud the eiwt
half of the land to the plaintiti', containing part
of the land rutainud liy M., and ('. allowed thu
jilaintitt's cattle to run on the west half, there
being no line fence liutwuen the two halves. The
plaintiff's uattle escaped from this west half on
to tlie railway where thu fence had been re-
movud by M., and were killed:- Held, that
the plaintiff could not recover, for the facts
shewed a license by iiii]ilication from C to
leave thu fence as it was, and thu plaintiff, as
C. 'a licensee, could have no Ijutter right than
C. Kilmer v. UmU WeoUrii R. W. Co., 35 Q.
3. 595.
A hill was lili'd l>V llic o\N iici
■■' mill, all.M
ing a Verbal agreement with the piniiiiit,,,. ,
land adjoining, for the right to pen hack ;i ntrrai
ninning thmugh his land, ami which wnn use
for driving the plaintill's mill, in comnhIi i.itu,
of which lie was to open up a road arn.Mt ||
farm, for the use and cmivcnicncc of nin || im,
owner; but no writing was ever drii« luiii cv
dciicing the agreement. 'I'hc vendee, tlii' omn
of the laud, instituted proccedjugH iigiiuHt tl
mill-owner for damages by [iciiniiii,' IkuI tj
water, which overllowi'd a I'liiiMidcnililc imrtin
of his land. The evidence being positive hh (
the agreement to permit the |ieniiing back of fli
water, and th" road across the plaintill' ,< U\r\
having been used by the |iroiirict'ir of tlic lam
and his vemlee, the I'oint decreed a spccilii- i,,'
forinaiice of the parol agreement, but, iiinlcr tl
circnmstanceii, without costs. Sifal \, /'„,./.,
hirnj, 10 (liy. 101».
Thi^ holders of a license to dig for nn mail,.
voluntary transfer of their right to aiinlliiT, an
subse(|ueiitly the licensor duly I'oiiMivi'il f,
value, a like iirivilege to others, who iiiKii inii
chased from tlie original licensees their intiiiN
and entered upon and workitd the lauds. .\|.;,||
three years .itterwards. the assignee nf tl,,. ii,.,
license lilcd a bill sticking to eiilorce an isdusiv
right to dig. 'I'he court, under the linuii
stances, dismissed the bill with costs. /,V<« \
/•'o.'-, I.SChy. (i8;{.
A party to whom a license to dig form,', (th
grantor being entitled to a royalty of iiiii'twin
tietli part,) was (^'ranted, v\as ilescribcij in thcjii
strnmeiit as a miner, ami he subei|uciitly tniib
ferred his right to another, without aiitliniit'
from the owner of the soil : Held, that th
personal (piality of the grantee, foriiicil ,i jnatc
rial ingredient in the contract, and tin rddic th
right coulil not be assigned. ///.
[Sec also next Sub-head. |
'1. h'l'i'iiriifiuii mil/ ('iiiiiiliriiiiiiiil.
l.lebt on bond conditioned that "the ikfeil
daiit, his heirs and assigns, should iiui'iiiit til
|ilaintitf to cut down and carry a«,iy all til
tire-wood from certain lands without let, siiil
hinderance, &c. I'lea, that defendant alw^i
lierniitted, &c. Replication, that defend iiit m
veyed thu land in fee to a stranger, wIki hmii
not permit plaintiH' to cut the wiiuii, &,. :
Hi Id, bad on demurrer, as shewing milircal
i.ij bond being a licensi! under seal liindiiii,'
lefundant and his vendee, and not revciealile .
parol, and the plaintiff having shewn iniait'il
obstruction, /'oic/v v. Fnlhirifill, 4 0. .•>!. I8.vl
\Vlieru the sheriff had seized good.s nnileiall
fa. and allowed them to remain on ilefendaiitl
premises on the understanding that they .<li(iiil
lie sold there on a fnturu day if the inniiey wij
not paid before, thu license thus given tmiitJ
on the premises and sull the gooils aci.'miliiij;ij|
cannot be revoked by defendant. Mc(lillU\
MiMortiii, 1 Q. B. U.j.
(!., owning lot '24, obtained a parol licunsi' im
the plaintitf, owner of lot '2'), to erect a ilani iicro(
a struam running from lot 2,") throuj,'li hitL'4,.i<
thereupon erected a dam ; and in fiirtlifr m\i
(j[ii«Uc« wf such liceUBc, built a mill ou said i«
liy lla- iiwiiiT nf ii mill, all.j.'.
mriit with till- iniiiHirtiir i,i
tlir \\n\ii tcilirii liilck II Ktii'iiiii
JM liiiiil, unci whii'li wiiH iiKi'il
liiitill'M tiiill, ill i.'niiNiili'1'.itiiiii
to ii{ii'ii III' a riiail inTn.M Ihk
mill coiivciiii'iwi' (pf Niii'li liiinl
ritiiiK wiiH t'vcr diiiwu iiji cvi-
iiu'iil. 'I'lio vcnilic, till' iiwiii'i'
tlltcil llI'llCCfdillK" HJ.''""** till'
iniiiHi^i* liy iH'iiiiiiii; liiiik i|ii.
■tliiwi'tl a ciiimiili'iiilili' imrtiHii
• cviiU'iii'ti litiiiig ji'isitivr as til
lll'l'init till' lU'Muiu^; liark nf till'
lail lUTiiHH till' iilaiiililt "h f;iriii
hy tlif iiniiirit't^ir nt' tlir laiul,
lll^ I'Olllt llcL'I'OCll a Slldilic |u|-
lariil ivnifDluelit, liiit, iiinlir tlir
ithimt i'ii«t«. .Sii'iil \. Tiirhi.
a liouiiHu to ili^,' till' nil niailc a
il' cif tlii-'if light til aiiiitlur, ainl
I! litH'iimir iluly loiivi'Viil, fur
kilt'gi' to (itliiTH, wild .usii |iiir-
original licciisticH their intfii.'Kt,
laiiil workoil the IuihIh. Ncmly
•wanlH, tlii^ aHsiniicc of the lirnt
1 Kiii'killg to ciit'oirf an cMliinivc
Till' court, uiiili'r the riniiiu-
mI the hill with I'ostn. /'dm v.
(1111 alit'oUHu to ilig tor nil', (tlic
lititlud to a royalty of inictwiii-
graiitiiil, wivH lU'scriliitil in the in-
iiucr, anil he Miihi'inicntly tniiis-
to another, withmit aiitlinritv
r of the Koil : llelil, that th;
• of the grantee, foniuil a iiiati ■
n the eoiitract, ami thi'iclnri' tlii'
lie ivHuignuil. /''■
; alwi next Suh-heail.|
iriil'ioli (iliil Coinitcnunml.
nl coiiilitionud that "tlu' ili'fi'ii-
and assigns, hIioiiIiI iiLiinit tliuj
t down and carry away all tliol
I certain lands witlimit lot, suit,!
c, I'lea, that dcfciiilant alHaysl
Replication, that defeiul iiit cini-l
in fee to a straiigui-, wlm wmildj
laintiH' to cut the wmiil, &!•
demurrer, as shewing im lireacli.l
\< a licetise under seal liiiuliiigi
'his vendee, and not ruviualili' 1
iilaiiititf having shewn im act'ii
'•''f..ii,i,ii,t ,
til he Wolkeil Iiv iiiiiiii«,.f ..• 1 1 Oil A
I'riler to work tl... ' ,! i' , '""' ,'■- '""I i-i lit'iiC '""''*'''"'»'''''■"" treMo.H, ,u, i *
ic, fioiii (J (•,„. .) • ,,,i
•■■' HM.. plea I,, ihry, '''''■'■'''' ii ''■''''■''''''''■
l*iMK <<-U|.le.l with the g i;,,,; , VT,"" ''"• "'■'■"^••.
put not lieiiig l.v.leei ,'''';''''■'''■ ^''''
fciMiHH eoMMei,ueiitlv levoe,;!.]! .."";• '""' "'>^'
'■'■•'('•■^•tinK sIh rt ,■ , : ' '""•""■""•'' '»' the ^el
niPialiiensi.,'for all tl. ^^ ' - "••••"i"<.- it """'tnui „( „,.. ..j^l t- ' "'""'"' ''X
iue ; .T 'Heeaiis . t ^i^ ;T''''" 'T '"" '"""K- ""■>• "•'"'■'' then a , | .f " " "' """ "..,! tao-
l.u,.I «a.H ..laimeil , i.S , ' ''';i'''''**' l''''''''*''''' I !"« ''"' ""'tv ot ti t 1 :""|-"''"-^ I"'"'' -
ot tl ill .. . , "■')• 'liiil the eiiihaiikiiieiit
I'll the 2(ith (IctohiT ISV fl li ... .
iimiitfiiiii .jMiMt.«f,„.L ,'; ,.:'-;. ^'"' '<"H:iio
liHiii i'laiiitid'M father, |,v uiiieh • r-" '
'■=« H.iil entering i a , rh.I "''P'"''''/"'' '''•«''k.
I>lainti(r',s Mall clr „ ,1 '''' '"■"•''king.io,,.,.
■>'eo.i,l eon.it, f.ir o), tr S'^''""' *''" '^''*"-
tl.c lilaiiitiH- . Me 1 a ^ '■"' 'V'?""* '"«''* "^
which, s„ far .,H it l,..;i • fl J" "^ ''^■'-'"«'-'- T.,
tla. l.laintiir e ie r v'' V^'' r'"'''^ '■"""t
'M.'Pemed that tlm oh.l.Ii.'^- r.",", ^y^'in-tted. it
•wiled
,™l."un.l to t..l,..'J'^!f' ''« ""^ ™'''r»Jl<'wnedl.v, LUtt- t! "" *^ I'^'-^itiou
Ifci merely as a lioeZ i w. '"^'i "'""' ^'"^
■^«»™k, on w lieh thov '• "',V r"»t'-^<'t« for
^' (■**, 12 q. T'^!r *■ ""* '•'-'vocahle. X,./,Z
» "'titled to revoke ,„.v "i "'' *^° 1'^*'"*'^
oKe any hccnse implied by
lYlTTwr^
1 ' ' i
's ^•
■'' H'!|ir
2111
LICENSE.
and the pliviiitiff hrouglit this action, having first
served a Udtiee reviiknig tlie license and recjnir-
ing defendant to renuive tlie Imilding ; Held,
as t(i the Hrst count, tiiat the iilaintiff nnist fail,
for the gravamen of the charge was the l)reaking
and entering the close, the rest being merely
a;';gravation, and no trespass was shewn to he
done after tiiu leave was revoked. Held, also,
as to tlie sccon . count, that the evidence proved
t'.iti pie;', of leave and license, and that the repli-
cation setting up a revocation before the com-
missiou of any of the grievances was not proved.
Semble, thit the license having been acted
upon, and exjiense incurred by the defendant,
it could not be revoked. Miinjiui v. Lni/i;/,
33 Q. B. 301).
The plaintitl' and defendant, adjoining pro-
prietors, on lots 18and 17 respectively, and tliose
through wlumi they cl.aime<l, had occupied up
to 18(i7 aceoriling to a fence, which had been the
boundary between them for thirty years. In
that year a survey was made, by whidi the line
was placed further to the east. F., through
whom the piaintitt" claimed, then owned to the
north of the plaintiff in lot 18, and one ().,
through whom the defendant claimed, owned the
land opposit'j to them in lot 17. In I8()S V.
moved the fence on to the new line. }Ie said that
O., in 18()7, told the jilaintiff he might occupy
the strip between the (dd and new line, an<l in
18()8-()!) the plaintiff cut gniss on this strip. ( >.
afterwards solil to one J., who occapied n{) to
to the ohl line, and sold to dcfcmlant. The
{daintiff in 187- moved the fence to the new
ine, .and the defen<lant innnediatcly replaced
it, for which the plaintiff' brought trespass : -
Held, that he couhl not recover, for the defen-
dant had acquired a title by possession, and (). 's
permission to the plaintitl' was at most a mere
license, which was revoked by liis sale to.T. , and
never gave the j)laintiff possession .so as to entitle
him to maintain trcsp.is.s. Culr v. liniiit, 3.5
Q. B. 103.
The plaintiff' owned lot II on Seaton street, in
the city of Toronto, and defendant lot 10 adjoin-
ing. There w.as a liimse situate partly on each
lot, and it appeared that the plaintiff' and one A.,
under whom defendant claimeil, had nuitually
agreed that A. should occujiy a part of tlie house
which, owing to the jiosition of the partition
walls, encroached slightly on lot 11. A. so
occupie<l until her death, and her lieirs until they
conveyed to defendant : — Hehl, that defendant
must be regarded either as tenant at will to or as
occupying under a license from the plaintiff', and
could not be ejected without notice or a revoca-
tion of the license ; and that in either case he
would be entitled to a reasonable time to remove
what he might have in the house. AV//.s v. <!iui,
36 Q. B. 35().
On the Ist October, 187.'">, iilaintift' wrote to I).,
the owner of certain land in the towiiship of
Caledon, that lie untlerstood that one M., who
had had a written lease from i)., which had
expired, but who had renuiincd on on the terms
of the leiiae, was goin.; to leave, ami that if the
farm was for rent he vould give 1). !*1(M) a year,
and pay all taxes, Ac, and reipiesting an answer
l)y return mail, as he wished to ccmimence
ploughing. I)., who was then in the Ihiited
States, replied that he had no objection to
plaintiff's terius ud tu renting the farm ; and
that he might eomnionce to phnigh on the foil,
ing conditions : "I rent to you for one v(
with right to sell the farm at any tiiiu-, '
giving up piiss(;ssion th(;reof when rciinirvd,
your being paid for laboui and seed at valiiiiti
should the purchaser wish possession, j \s\\
up at ( '.dedon as soon as I get home, .uid im
tinal arrangements as to payment and siriuit
The plaintiff' entered and did the plnuc^'liiiiH,
without M. having given nji possession, di'wi
out the arnuigcments as to payment and scoui
being perfected. Snbse(piently I*, sold to
defendant, who thereupon took iinsst'ssidn.
appeared that 1). offered to pay the plaintitl'
his fall ploughini', but that he did nut .semi
any claim. Kvidencc was also given of txin
sions made use of by I), ^o intending pnrchasi
referring to iilaintitt' as the tenant, who h.id
place for a year, but would give up p".ssLssi(iii
being paid for his phmgli.ng, and as the imt
ing tenant who would liave to be paid hir
ploughing : Held, that there was no pie.s
ilenuse, but that the plaintiff merely liiid a lieu
to enter and plough, pending the cundusidi
the proposed bargain, which license was rcvoi
by the entry of defendant, the ownei' of tlie I
Shtlili.'< v. Jimilili/ el <il.. Si V. 1'. •_':14,
A. being entitled at his own expense to iiii
a road for himself across H. 's f;inii at tlio m
eonveiiient \)oint, it was agreed between tli
that A. should use B.'s road on certain tuinis
Held, that this agreeii.ent was a iiuie liueii
not i'in[iled with any interest, or iiicidint,
auxiliary to a sale or grant, and was tliuivf
revocable ; and being revoked at law, iki vi[\\
arosi' to interfere with A. 's legal right, (jin
ground of encouragement on the part Of tliei
or forbearance and irreparable iiicunveiiieiiee
the part of the other. Fhldi r v. PuiDtMn
( 'hy. •_'.-)7.
j The owner of the lands, supposed to cdiit
I valuable ores, authorized two persons by an
! strument iri writing, (inten<led to be, Init
mistake not sealed, ) to dig for iiiiiier.ils in
land, thoy agreeing to give to the owner nl
j soil one-twentieth part of all the iiiliieials
might lind or take : Held, I. That the into
I intended to be conveyed was an iiicoijii
' freehold or tenement, and could only be ci
' by deed ; '1. That if it was iiiteinleii to ii[io
as a license only, it would be revocable, am'
court would not make a decree to esta
right or interest which might be inimedi
revoked, linxx \. Fox, 13 t'hy. (i83.
See also the next I'a.se.
Mid
11. l'"oH I'llE', TsK OK CHAriKIS.
A. demised to B. for a term, with a claiia
forfeiture in case the term should lie taken iin
cution, and at the same time delivered
chatttds into H. 's possession upon the teiins
tained in a memorandum 'ittaohed to the
] signed by A., stating thi.c he .igrced to allmv
use of the chattel/i to assist him to p.iy tlie
and maintain his family. ( >ii an iiiter[(leaik'
tween -A. and V., who had seized the clia
under an execution against It, ; Held, that
memorandum formed no part of the It'iusc.
operated only as a license to use, whitli
revocable. Mm.kkMon v. Smith, 17 I'- !'• ■
2113
LIEN.
2114
•2U2
,cetoploxigl^n«tlufnll(.w-
,e farm at iiuy tni..' v.m
tb.=ro..f NvU^'", 'yi"y'"|'. ""
,,.i^l, ^,o«seHsi.m. I wiU ...
n HH 1 get 1»">>L'. !">'' "."''^!'.
. t.> iiayiucnt aii.\ su.untv.
■uul .H.l the vl.mglnug, kit
.ivcnuvimsscswm ..iNviti
,a8t..l.ayiiH!iitaii.ls..eun>
We.\ t.. l>ay the vUu.tiU lor
IrwasaUo given nt ...vvs-
ff .18 tlie tenant, wh.- lia.l tl..
rtNVou\.1^ive"l'V-*^^^^"'"""
1 ,1 r r an.\ as t le .iuti;.i
US"1^!:- t:ri.e 1-1 f..v tw
that there >vas n.. vvcs.ut
;eSiutilV">erelyUa.laho.>,>..
S^'\,en.ling, the e..nolus,,m u
rJ, which license was les.'Wul
^;;.^nt,the.>.;n.-., the,..
I 1 .A his own oxvcnse to nuik.-
t it ^v H^vg.■ee.l hetNVceu th.-n
''u'sr..ari.mcevtam terms: •
'' .Vent was a nier... hceuse,
'Jl^lj'^rant a,.lwas - 1
n.eiug.vcvok^l^^Jv.;^;;^ ^,^,;
[ere ^^'^^^^ ;:;„%u:5 ,,art ..f tW »ne
'"^1S ^.Su--veuie,...4
.-f the hunis, -in;-;H;;rt|
auth.n•i/x.lt^^.. c.^'ns J
h'l1'tr£t\uu>enll.i..4
Leiugt..givetotUco.u^^^^^^J
^f^^"'Ho.l 'n-attUeiutonsJ
Itake : HU.i. i„,„vi.nve/
Inenient, ami , ^ t„ ..wratt
sx Y. i"'.'. l'^ ^ •'
Soc also the Jiext case.
^,KTUKrsK..KCuVnK..s
jlt..U.foratern.^;;';-d
L^ethcternv^dnml t..^,^J
It the s'Wie tune e ^^^^^^^
l,,;.Vo«--:'.:;K. '-the .
1 stating thi>c lu- a^ . ^j^^.^j
lattebt.MV.«iB n ,^,l,^l,,ao^
1 his >'"!"»>'•, V'Vei/e.! the clu.*
V.uti..n against iv . ,,^,^, ]
I {orn.e.1 "'. va.t ' ' .^ .
Iv as a l^'^^'**" t':,,''i'7 t'. 1'
1,1 EX.
I. WlIKX IT ICXIST-S.
1. For Work'hiie, 2113.
2. Olhcr (•it.-f.'i, 2114.
n. WiiE.N Lost ok W.mved, 2115,
111. l'i.F..vr>iN(is, 2118.
IV. Mf.ciiam.s' Lir.y Acts, 211S.
V. MiscF.M.ANKois Casks, 2110.
VI. l>i' rAKTUlI.AK Ff.KSON.K.
1. A/fiiriK'i/.^—Sec Attok.sf.y and Sou-
C'lTOH.
2. Ai'cthwci'rx — .SVr' ArcTiON .\.vd Aut-
TIONKEKS.
?,. fiill-k-rr/iri-s — SiC l.VNKEKl'KR.S.
4. Ill IiiKolnnrij PriicpiiUnii>-—Sii'. Baxk-
RlTTl'Y AND IXSOLYENfV.
,"). OfXlldi/lhilltfi—SW' JlIJCMENT.
(1. J.inri/ S/rili/r Kt'cpcr — Sil: 1-IVEHY
Stai!i.e KF.F.rEU.
7. Jlorfi/(liJ(cs—S('i' MoRTdAfiE.
8. Sli'ijijiiiKj—Scc Ship.
9. Veiulm:i Lkn—Sfi- Sale of Land.
10. WdirliitilO'llini — Si-i' WAREItOrsK
AND WaREHOITSE lUXEIl'TS.
VII. Fun iMi'iiovEMFNTs ox Land — Sei: I.m-
I'liovEMKN rs UN Land.
Vllt. El.inTAlU.E 'MoRTCAdE — Sec M0RT(;.V(iE.
1, AViiEN ir Exists.
1. /'(.(• Worl: DuiK.
k ImiWor lias ''o lien f.ir payineiit upon a house
1 fftt'toil hy him on tlie land of lii.s enqiloyor. j
Wberc A. contracted to Imil.l a li.inso for P>. and
1 to ileliver possession thereof when (inishcd, n])iin
which he was to he ))ai(l :- -Held, that no action
Tf.nlil lie til recover the price until an absolute '
1 aiiluiireserved delivery of the house li..d taken j
ilatc ; and that he has not a right to witlihol.l j
I tk' key of house until he received payment, |
ttainliB. had luit ac(|uire.l any title to the land i
I anvhich it was built. Joliii.inn v. ('n:ii; 5 (). S. |
rm I
Qiucre, as to a farrier's right of lien on a hors-.» i
liirscvvlcus ren.lered. A'/i'<)//.v v. Diiiiciin !' ""-. |
t)iio liiiliins had agree.l to make f.)i. iUi:'. ', I
Itketxwuti.m .lehtor, an iron fence, for .\hi"hl
liven finiiished him with the iron, and paio a j
Iwtaiii sum .III ace.nint of the work. liel.K'
Itmlili; to pay the halanee. G. advancc.l i le
In my, taking Uuthven's note; an.l the fei; e,
Irtiih \v,i8 then in Rolnns's yar.l, v.-.i.s delivere.l
IliyEuthveu to him to hol.l for (1. until payment
hitkiiote, hut there was no written assignment.
Pbeii the note fell du>., Euthven auchori/.eil (r.
ItDstU the fence, but it remained until it was
Itohm.Ur an execution against Ruthven : —
|leM, that the execution could not prevail against
l.stbiin, for I'uthven never ha.i been entitle.l
liitk. fence as his own. (lurntij et id. v. Jamvn,
A packer Ins a lien ;'pon the goods packe.l by
1 tw the materials us''tl aud ^vork done in
133
packing. Tlie plaintiff em]iloyed one B. to pack
some furniture and sen.litt." him by ilefendants'
railway. B. diil so, ami received his eiiarges for
packing from defen. hints, whu wen; authori/e.l
bj' him til collect them : — Ilel.l. that ilcfen.lant.H
could legally retiiin the giinds fur these charges
as well as f.ir their freight. Ilmiirnnl v iruiid
Trim/: J,'. IV. C, :;2 Q. IS. 3!)2. '
2. ODiir ('n.ii:'<.
The ]ilaintifl's were a couipanv existing in an.l
chartered by the State of ?'"\v Y.irk, f.ir the ]>ur-
ptise of carrying on mntmd insurance, in the
county of (ieiiesee. The charter pniviilcd that
the cimpany shouM have a lien by w.ay of mort-
gage on the jiroperty insured, an.l up.ni tho
right, title, and interest .if the as.iureil t.) the
lan.l nil which sai.l pr.iperty stn.i.l : — Helil, that
a f.ircign legislature cnilil make iin law creating
a lien on real estate in ( 'anada ; and ciiiisei|ueiitly
th.'it any cniitract foun.led on such a ccmsidera-
tion, was voi.l alt initio. (•'I'lu-.tcc Matiml /u.iiir-
aiir'' Co. v. WfttiiKiii, S Q. B. 487.
Held, that the Bon.l Hea.l Harbnur Cmqiany
had n.) legal lien .m th" stock fur harb.mr tolls
due l)y .S, til them, an.l cnuld imt therefnre on
that gr.iun.l, refuse to register the .assignment
of tlie stock liy .S. to the phiintill's. J^rXnirrkh
i-f III. V. lioiii'l Ifiiiil lliirhiuu- C,,., '.) Q. B. ;i.s:i.
.\ factor has nnlien on gn.ids cmisigncl to liim
until thev actually eonie into his possession.
Chirk \. ilreat Western nnilii-i;; Oi., 8 C!. P. 191.
The sheriff has no licii or claim on the gnoda
seized for his fees. In re U<j-<<, ?, 1". It. 3!)4--C'.
L. C'liamb. — J. AVilson.
Where idaintilT, being the owner of timbered
lan.l, verbally agreed to sell j,'riiwing timber to
.lefen.lint. an.l there was a dispute as to price,
it was hel.l tliat the iiro]ierty in the trees passed
as so.m as severed frnm the frei.h.il.l : but that
the plaintitl' Jia.l a lien uiiim them fur the jirice,
an.l therefore that .lefcmlant, without .lischarg-
ing the lien, ha. I no right to remove the timber.
MeCiiillniy. Olinr. 10 L. .1. 1,10.- ('. L. Ohainb.
—A. Wilson. But see S. C. 14 C. P. 290:
A retiring ]iartner obtained fr.mi one of the
eontinui'-g jiartneis a letter agreeing to reim-
burse thi. amount advanced by the partner so
"fiti'.'rig, out of the one-fourth of the profits to
be • jv;!' from the business: — Hel.l, th.at the
ret rij, oaitner ha.l alien .)n such fourth part of
the pr.ilits, and a cori'es)ioiiding portion of the
capit:il stock and assets of the \)artnershiii ; and
was entitled to an account of the jiartuership
lealings. McCreijur \. Aiiiler<oii. ' t'li- ■154.
Uii.ler tlio act f.ir .juieting titles, w nere a con-
testant sets uj)a tax sale, which is fouii.l invali.l,
he is entitled to a lion for the taxes pai.l by his
juirchase ni.mej', witli tlu! ju'.iper per > entnge to
which the owner woulil have been I'able if no
sale ha.l taken place. //( r<' Cmiieroi, 14 Cliy.
(ji-:.
If the c.mrt can tvacj money or| I'operty how-
ever obtained fr.ini th ■ true owii-'rv'.l any other
shape, it -in securij it fo- the Unie owner by
h.ilding it to be hi" '•.: ^'iiiity <n" o\ ■.•iving him a
lien on it. The '-l-nlniHtn L'-rpresx Co. v. Mor-
ton, 1") C'hy. ?r i.
An i n cor] orate. i c. •. ipany laviiig executed a
bond which, tiio.i^'. i. ^nitai'.od no direct words
2115
Lien.
ni6
of clhavgu, was uviduntly intended to give a lien i ))ut separate from this. Afterwards the I'.iUTalo
on tlie iiroiiertv of tlie'coniiianv, it wh'j— Held, i and hake Huron 11. \V. Co., tlieiilaintitVs l„,un,i|t
that tiie lien w.'is sufHeientiy created. T/ie Town out the old comi)any under tlie lit \ict. ,-. i>|_
tif l>aitilax V. Jh-.s/dri/in-'i Cdiuil Co., j7 Cliy. '.27.
M. was administrator of the estate of S., and
was managing tlie real estate for the heirs ; he
was also i>ne of tlie exeeiitors and trustees of
E. ; there was a sum of .^SOS..")") due for taxes on
.some {property of tlie S. estate, and M. paid the
same with money of the E. estate, direeting the
agent of that estate to charge the amount to the
S. estate ; ^i. did not enter the amount in his
aeeounts with the S. estate as a loan, and, on the
contrary, in the accounts which he remlered, he
and arranged certain writs of li. fa. uiuUa- wliicli
the sheritl' had seized this and the other iiun ;
and they thereupon demanded the iron in (lues'
tion from the defendant, who refused t'l ;.'ive it
up, elaiming the ocean freight, which h;v[ in tact
been paid, and the freight from Kiii;:stiiii, as
well as demurrage, a'ld some other chaigi.s not
recoverable. Tlie plaintill's, however, iviii-icd to
pay any thing, and replevied : -Held, 1. Tl,at
the iron could not lie considered as having' Ijueii
delivered to the oltl railway eompiiny. «1icm
landed, as it was, at I'ortt'ollionie ; 2. Tliattlic
the
t..ok eiXMhtt.,r the am.mnt as a payment l.y him- g^,^t,,^,. ,,, yj^.t, e. -21, did not take auav tlr
self. ihe heirs knew nothiiig ot the loan miti • ,j^ ,,f 1;^.,^ . j,,,^ y„„ij| anything done l,v tl,
some time afterwards ; tliey had not anthomed , gi,^.,.;„. j^.^^.^ ^5,.^^ ^f^^^^ . 3 -i.,,.^^ defundiiuf 1, iv
M. to borrow money ; and he was at tiie time i j, , ,^ ^j^.^^ ,.; ,,^ t„ detain for the fivi-ht ti„iii
ludeliteil to them as agent m a sum exeeednig j k,„ ^ton, of which no ten.ler ha.l b,ri, ,„a,lo
the anumiit ot the taxes ; M afterwams died ,^4^ • ,,t ^^.^^ ,j,,t prejudiced by having , iHuaii-
insolvent, and uidebte.l to both estates :— Held, j^.^^ ,y,„.^ ,.i,,^,j ^^..^^ ^^^^^ ^ f-^/^^ ^^^^^^ /_^^^,^
111 appeal, reversing the .lecree below, that the yy,^^.^^ j^ ^r ^.^^ ^,_ (,'0;.,/,,,,, 10 Q. 1?. ._.,s;i.
E. estate could not hold the liens ot the ^. estate
liable for the .SS08..")."!, and was not entitled to a Defendant having an admitted lien ihkui ,1
lien therefor <pii the* property in respect of which j buggy for repairs, it was — Held, on the cviiloiae
the taxes were payable. Etrort v. S/i-n-ii, 18 \ set (Uit in the case, that there was 110 sullKJciit
" evideiKie of a tender of the sum, or a waiver of
it. Li-h'W. Bhjijm; 11 < '. I'. 170. See, also.
Chy. 35 ; !i. (.'., iu the court Ijclow, KJC'hy. 103
The costs oi a suit at law to recover back a
deposit paid on account of purchase money, do i
not form any lien upon tlie land, although the ,
dejMisic itself does constitute such a lien. Burnt
v. (.'/■;//(■//, 1.'4 thy. 4.") I.
II. When- Lost or "W.mved.
A sends a waggon to B. to make the wood
work. B. having iiiiislied the wood work, sends
the waggon in A.'s name for the iron work, and
gets it back again from the blaeksinith's. A. calls
tor the waggon ; B. allows him to remove the ' for storage, claiming al'o to hold tlieiii fur
box in the highway, but on his returning for the i untenable claim as dut, either to liiiii>eh urn
running part, B. refuses to let it go till he is paid third person, does not disiieiise witli a tender (it
his bill ; — Held, that B. by sending the waggon the sum due, and aniounl to a coiiveisimi. uiilt'ss
to the blacksmith's had not lost his lien, but that the evidence fairly warra its the eoiieliisiun that
the lieu revived ujioii his again obtaining posses- such tender would be uj dess, as it woul.l lie re-
Mllhnru V. Milhnrn, 4 Q. B. 17!).
Where the holder of goods detains tluiii fir
ditlereiit claims, as to one of which he ha- , 'v..
and the other not, the owner must teml , ,j
proper amount, unless the holder i'itiiere>pri ...v
or by fair iniplicatioii disiieuses with it. Kimlal
v. Fllii/tntlil, '21 Q. B. TiS.") ; li'ifah, onl l.nU
Huron R. ir. Co. v. (/union, w'^i. B. •Jf.S; Mr-
Brill,- v. niiilrij, (5 C. P. 0-23.
Held, that the mere f."ct of a waiehuuse-
nian who has a lien on gcods for a certain sum
111
sioii of the waggon, and that allowing A. to
remove the box into the highway, was no waiver
of hi« lien. Millhiirn v. Millhiirn, 4 (,». B. 171».
fused ; and that in thii case the eviileiiee ^et nut
below was iusutlieient for that imrpuse. Tlie
idaintitfs ileiiied that any clai u iui su.riL'e was
1 .-, ■ , 1 c 1 i 1 • 1 V ' made, while the defendants I'sserted the cuu-
In this ca.se, where defendant claimed a lien ,,,.,,„ ' u n xi ,. ■.• ^ 1 "-'^^ ' " ^ '
. . , .■ , .. 1 i. .. 1 trary : — Held, that it not made when t u' .kh 3
on certain gooils tor wharfage, Imt it appeared, „ „•' 1 , ,,. i 1 .1 , ,• , . , 1 r" ■ !
., , c " ■ 1 !■ »i i.- 1 ' were demanded, the delendants e>'n a ill'' I elint
that for nianv years, including the time when ; ., , . .■,,., , • • , , .' ■ i^"''
., 1 "^ ' If 1 * 1 1 • fir 1 1 the plaintitis claiiii 111 trover by a terwan s set-
these giiods came, defendant and plaiiititl had :.•,/•. „,. ,,,, , , ,, •' , ,„,;
1 1 1- i. ii Ilk- 1 it 11 I ting it up. JjlaUoital. v. Moninn td .''.U .
been dealing together, and deteiidaiit had charged , ,, ^,- •' ■,->>.
his claims for wharfage in account current, on'i ' '"
which payments had been made from time to j H. & H. stored wheat in defendants vaie-l
time:-— Held, that it was properly left to the j house at K., and for charges iiicnried tlieivniJ
jury to say whether the wharfage on the goods j gave them a draft on their own tiiiu in M.|
iu question had been paid, and that they were
justiried in tinding that it had been. Boi/d ct ul.
V. MaitlamI, l(i (l B. 311.
Replevin for railway inni. It appeared that
the iron had been inijiorted from England by the
Buffalo, Brantford, and (ioderich H. \V. Co., and
was shippeil from Kingston to Port Colborne,
subject to ocean freight, ami the freight by
schooner from Kingston. On arriving at Port
Colborne, no one bein^' ready to pay, the iron
was left by tiie master in defendant's charge, to
holtl subject to the freight, and was piled on a
piece of ground belonging to goverument, where
other iron owned liy tlie company, was also lying,
which the ilefeudants accepteil in payment, aiii{
receipted the liill. The <liaft was presented aiiJ
accepted, but during its currency II. & ll.laili
Defendants then refuseil to give up the reuiainl
der of the wheat, (having already sliippeii \\i
of it to Montreal,) claiming a lien fur tiieirgeU)
eral charges : — Held, that their lieu was susiiti^
(led during the currency of the bill. HuiM \
Wiilkvr, 8 C. P. 37.
M. being the owner of certain lanil, snM an
conveyed the timber and cordwouil tliermiil
Me(»., who took possession, giving !"• nnte^
part payment ; ho then eouvertc'l tlie tiiiilj
luto cordwood and sold it to one A. and alisc
211G
;{ev tl.c W V>ct. .21
s(,{ li. fa. uiiilur which
his au>l t\ie .ithci- ivou :
au.U'>l thu iron in .lues
,vbo i-ofu^sfa t„ j:ivc It
^ei.-ht, wliK'l' \i;ia m tiict
i„lTt from KliijAstuu. M
,^mic- ot\.er i=l''":S"^ ""^
titVs, Uoxvovuv, vcms.a to
'\i.l not tal^ away ^
S That AolViiaaut hav-
otaiu for tlu' i>v-;.ht tnmi
an a.\mittcd lien »!"'" '^
^'tTwe Vas uo .uU\cieut
;;,4q:b. 179.
r of g'
2117
LI EX.
2113
„.,.U .V.t:u-.s th.mj-
\w hu-
to one ot wluch
V (Invdiiii, 1* 'i
i ci. V. ^■
f., .t of a wavL'house-
p mere f. j-t < t j^„„ ,„,„
ly wavra ts tiu. , , ^.,.
in this cascUicesultiu'-
J. t f,,v ;Hat iiur\ui'^e' nn.
Vicioilt t"l ^ > ,.,.-a"e was
%hat any claw. ... -^^ ^,,,
3 .letun.laut» .^-^ t ' ,„,,,
Li .heat iu -i-f:;;;i-^i;:::::j
Ilraft on tUoir o • J
lda,»t«acc.l.t-lm > I,,,,-
ill. TliclvaltvN.^^p .^,y
1 currency of the nin.
1 !wner "f cevt:nn h^.'!.^;' ^
timber au.l -•J^ ^^l;' „„tei
(led : — Held, tliat M. had clearly lost his lien. ]
Wi/dft V. Jiiiiik- <;/■ Tcniiilii, 8 C. r. 104. |
A. having taken a likeness for R, agreed to !
take in i)ayinent therefor S20 in cash and a cog- \
novit fo'' S!70, payable at a future date. After!
receipt of !?2() and tender of the cognovit : —
Held, that tile iigreenient was a waiver of A. 's i
riuiit to lien, hut did nut anionnt to an accord
and satisfaction. Dimii-nij v. C(ii:ioii, 11 0. P.
4(3'2. j
rlaintitl' .'(old to defendant cordwood lying on i
the plaintitV's premises, and agreed to remove it i
to the hank of an adjacent canal, and there de- i
liver it ; jilaintill' having delivered a portion at
the liank : — Send)le, that any lien for the ])rice |
which the plaintiti' miglit before have had upon
snch wood, was lost by its removal U> land neither
his iiwu nor under his eoiitnd. McXtilv. Kil-
,1m; 15 C. p. 470.
riaintift' employed 1^). to pack some furniture
and send it to him by defendants' railway. B.
dill sii, and received his charge for packing from
ileleiidants, who were a\itliorizeil by liim to col-
lect them : — Held, that H. 's lien was not lost l)y
ilehvering the goods to defendants for carriage,
siihject to it, or by accepting the charges from
ilefendants. J/ai/irurd v. Ura)i(l Trunk 1{. W.
(■■,, ;w ii. B. :{'.)•-'.
Hv It) Vict. c. i^and e. 1'24, an.l the 18 Vict. c.
13, certain nuini( ipalities were authorized to
is^ue ilelicntures under bylaws of the corpora-
tions to aid in the constructit n of a railroad.
The eiiutraet(U'S for buihling the road agreed
with the company to take a certain amount of
tlieir rennnieration in these debentures, and the
wmk having been conimenceil, certain of these
(Kheiitiu'cs were issued to the company. The
tnntracliirs afterwards failed to carry on the
wuiks, a ad disjiutcs having arisen between them
an<l the lompauy, all matters in ditlerence were
kit to ar litration, and an award thereunder was
m;ule in favour of the contractors for the sum of
t2T/45, payable by instalments. One of; these
instalments having bevonie due, an<l been left
lumaicl, the contractors tiled a bill to have the
ilebentures <lclivei'ed over to them in the propor-
tiiin stipuhited for .iceordini.' to the terms of the
cmitraet :— P"'. ". dthough the contractors wo\dd
have lieeu luticie ' sjiecitic lien on these ile-
Wutures ni iler 1 m il \ iginal agreement, the fact
that tliey !>■ i rc^er' , ; all matters in ditlerence
til arliitr a ul !iad ol)^ ii;ied an award in
tlitir f V 111' .11 a money payment, prechulcd
thi'iii fr iiii uo» ' ''ling that rehef ; and a tie-
iminer for H..;;t o. "ouit was allowed. Si/kts
\:Bi;jdi-M' oiu! Vttmr.i'R. W. Co., Ot'hy. i).
When a decree ill further directions had been
Kgistereil against the lands of the defendant;
anil afterwards the niginal decree was reversed
1 rehearing, tlie l^'huiceUor held that the order
reversing the origind decree destroyed the lien,
but tb.t the cc'.trt couhl not make an order
■octly affecting it, observing, on an ajiplication
j toilisohaiyj the lien created by the registration,
that the court cannot <1i«i'harge a lis pendens in
this iiiani cr, the only way of getting rid of which
1 istiiiilitai'.i an ord , liimissing the hill. (Jnthain
1 1'. t'/iri(i,.i ■ •; • :iy. L iia'.iib. 53.
TlielflVi't. c. 21, incorporating the Buft'ahi
i 'nil Like Hi mii It. W. Co. with power to pur-
Ithait ♦I-: viiuwav taereiu meiitiuned, tliil not
deprive unpaid owners of any lien they had for
the price of land theretofore sold to the (dd
eoni))aiiy. I'uhrinii v. liiitfuhi mid Litk" J/itrmi
li. II'. Co., 17 Chy. 521.
111. I'l.KAIUNCS.
Where in trover for bills of exchange, the de-
fendant pleaded a lien by agreement, and the
plaintiti' rejilicd a tender, without averring that
the sum tendered was suilieient, the replication
was-"Helil bad on general demurrer. Cuiii/cr v.
lJiiU-/iiiisoii, (». S. 044.
iSenible, alien may be specially pleaded in an
action of detinue, llhiril, n ,t nl. v. Ilriinii, 1
C. P. 1!M».
Where the goods have been reiilevied under
the 14 & 15 Vict. e. (i4, and the declaration is
for detaining merely, the jileadings shoidd lie as
in detinue. .S/i'IiIk-ii-i v. Coii.iiii.'-, Id (j. B. 321).
In such an action ;i lien cannot be given in
evidence under a plea denying the plaintiff's
property. J It.
IV. Mi:cit.\N"i(s" LiKN Acts,
A mechanic having erected tun separate build-
ings under two distinct contracts f<ir the owner
of the land on which they were built, cannot
register a claim for one gross sum in respect of
the two ; at all events he cannot do so unless it
apiiears on the face of the instrument how much
was claimed in respect of each contract. C'li •
ricr V. FrUdrhk; 22 Chy. 243.
In registering a claim under the ^lechanies'
Lien Act, the claimant made an atiiilavit verify-
ing it, and referred thereto as marked " A.," but
no such mark was upon it : -Held, that this did
not invalidate the registry. Hi.
A meclianic, having a claim for the erection
of buildings under a contract, assigned his
claim to the plaintiti' vo secure money due to
him, who, for the purjiose of enabling the
mechanic to register under the act, reassigneil
to him : -Held, that such reassignment cnalpled
the mechanic to make the claim for registry,
notwithstanding the e(|uitalile right of the
plaintiti'. Ih.
The lien given to mechanics undia' ''The
Mechanics' Lien Act' of 1873, 3() \'iet. c. 27,
()., has not the effect ol giving a lien to parties
who furnish materials to the mechaiiie for the
purpose of executing the contract entered into
hy him with the owner of the land. I'roncy.
.SIriitlirr.-<, 22 Chy. 247.
Held, on demurrer, that an architect is enti-
tled to register a claim under the Mechanics'
Lien Act of 1874, <>., for money due him for
making plans and specitications for, as also siiper-
iutenduig the erection of, buildings for the
owner. Avmildi v. Hualii, 22 Chy. 314.
(t. & ^L agree<l with the di^feiidaut 1?. to fur-
nish and put up in his building certain machinery,
to he paid for partly by assigning a mortgage for
.•jilOtili, held by B., and the residue <if the price
to he secured l)y a mortgage to be executed by
B., no time being mentioned for wliich credit
was to he given. On the 8th of June, 1875, B.
dibcharjjed li. & M.'ji woi-kmau from furtlicr
! ■(
i : I
I i
tf I.
LIGHTS.
-] ■'(
fl
■^fork ill putting I'p the tuaohinery, nnd the bal-
ance thcrc'ot' was lijft in tlie biiildinij. On the
'ind of .Inly, 1S7"), (i. i^ M- registered the nsnal
liieuhanics' lien for .'i<IO.SO, balance of the price of
tlie machinery so jint nj), and .SS8.4.5 for labonr,
;in<l on the 7th of the same month, tiled a bill to
enforce their lien, which rm the l!Hh of .launary
following, on motion of the defendant, was dis-
missed for want of service, bnt without preju-
dice to the lien, if any, of (!. & M. On the l!">th
of July jircceding, the present suit was com-
menced, and on the l!)tli of .January, a decree
Mas made declaring the plaintiffs entitled to a
lien and directing the usual accounts to be
taken : — Held, that as against V>., ('<■ & M. were
entitled to prove for the amiumt of their claim ;
and as the plaintitl's diil not appeal from the
allowance thereof by the master, the court
dismissed an appeal thercfidni by the assignee of
B. with costs. Iliiiiliuij V. lii'U, iS C'liy. .")S4.
The eftect of the Mechanics' Lien Act of 1874
is, to cancel a lien that had been created under
the Act of lS7,'i, although a bill to enforce the
claim had been tiled witiiin ninety days from the
expiry of tlie pcri(jd of credit as preseri))ed by
the 4tli section of that '' ; no jiroeeeiling to
realize the claim having "U taken for more
than thirty days after the n '•■'m-.-v, thi' founda-
tion of the claim, hail bcu. . ' ; the jiro-
visions of the act of 187.S beii.g n •" Misteiit with,
and repugnant to the pnivisions m' '• \ later act,
which repeals all acts inconsisteni liierewith.
\ValL;r v. Waltw, L'4 Chy. l'0!».
Wliere a bill is tiled by a sub-contrnctor against
the owner of property aii<l a contractor with him,
to enforce a claim against such contractor, the
owner of the projierty, and all iiersons claiming
to have liens, are necessary parties in the Mas-
ter's ottice, whose costs will be ordered to be
]>aid out of the amount found due the contrac-
tor, and the lialance distributed ratably between
the several lien holders, and a jiersonal order
made against the contractor for the delicieney,
if any. J/<irin</tii v. Kl/i.taii, 'M Chy. 448.
A suit bi'ought l)y a lien holder operates for the
beiielit of all of the same class, sci that a suit
instituted by one within the thirty days men-
tioned ill the Act, keeps alive all .similar liens
tiicn existini'. ///.
v. Miscellaneous C.vses.
Ill an instrument under seal, the wonls "and
for securing, &c., the said P. P. doth hereby
specially bind, oblige, mortg.age, and hj'pothe-
eate the said piece or parcel of land," itc, pass
no interest ; they only shew an intention to
create a charge of lieu. JJor d. Ji'oi.i v. I'lipM, 8
(I B. ,")74.
The plaintill "s right to a lien on the land uii-
<ler 'AW \'ict. c. 'i'A, O., ami the mode of enforcing
it, if the tax title had Ix'eii invalid, remarked
upon bj' A. Wilson, .1. Jomn v. Coirili ii, .S4 V, H.
:i4.-).
In .lanuary, 1872, the plaintilf, a musical in-
strument maker at Toronto, rente I a piano to
one. I., at Wooilstock, at !*'(> jier month, with the
right of purchase, the rent to go towards pay-
ineiit of purchase money, which was fixed at
S-l.">() ; and several months afterwards, when J.,
had paid three months rent, a written contract
was signed by J. 'i'he defemlaut, J.'s landlord,
having caused the piano to be distrained Uiv j,.,,
in arrear, it was sold by the bailirt' for .sy;, ^i,,
defendant })eiiig the purcliaser, ami the dii,.))
dant afterwards allowed J. ^\'2'> extra in settle
meilt with him, making .'J'iOO in all : -IKlil. tha
the evidence sutheiently shewed tht; piaim ti. In
the plaintitl "s property, and tliat he was entitUi
to maintain trover for it against defcndiuit :-
Held, also, that the sale to the defendant iiass"ei
nothing, for as landlord he ccaild not liiinst'l
purchase goods sold liy his bailitl' ; — Held, alsci
that defendant could not set u]) a lien I'm' ti,
rent as against the plaintitl', for the distress w.i
at an end, and the goods in no way in the ciistoih
of the law. l\'i/litiiiif> V. (in;/, '2'i ('. P. ,j(;i '
A mortgagee or judgment creditor of a rail
way company, is not entitled to enforce iiavimn
of his demand by sale or foreclosure of tliV rail
wa}', he is only entitled to have a ;iiaiia<'er o
receiver of the undertaking apjiointiMl ; and
(^luere, whether the rule is otherwise in tlKcasi
of a vendor seeking to enforce his lien top un
jiaid purchiuse money, d'all v. J'Jriciiinl Xiniiii;
A'. IK Co., 14 Chy. 499.
The ])oniiiii(m Act ;t4 Vict. c. "), s. 47, eiialilo
a party making advances to a manufartiircr ti
stipui.vte for obtaining a lien on waicl.dusi. r.
ceipts to be subseijuently granted to the, inanu
facturer. Sutcf v. McrclKtnln' liiinh, t\ Chv
3()5.
LIFE ASSURANCE.
Sir- iNSl'ii.VNCE.
LIFE ESTATE.
Svc. Estate — Wii.i,.
LI({HT-HOU,SE.
SvC HABBlirH (.'OMI'ANIKS.
LIGHTS.
I. To .Sjiir.s — Sie Sim-.
The owner of two adjoining sliojis leased oni
to plaintitl' and the other to defciidaiit. '
plaintitf's shop window had been so (•(Uistnkti.J
as to present aside view to persons coming' aldif
the street, the object being to attract tliuir at|
teiitioii, and obtain their custom ior tlii' v.\\\\\
ilisplayed in the slioji ; and the i)ii\ il.'^',; \v;J
shewn to be a very iinimrtaiit one. Tliu ttiiaif
of the adjoining shop having placed a sIkiw cif
in an open space or door-way of his sluip,
to intercept the view of the iplaintilf's wiiiilinl
was restrained by injunction from c(intiMiiiiii,'tli|
obstruction, lirniiitinl \. IV/uiriii, I'.'Chy.:
The plaintitr tiled his bill to restrain iLitiiiil
the defendants from closing \Nind(i\vs wiiiclil'i
ed across a lane, of which plaintitl claiiind toll
owner, and on which defendants were Lri'ctiiii.i
building some time before the c(jniiiaiii.tiin.ut <
'2120 H 2121
[iVe (listraineil for rent
t\,e bailiff f"v *■•■;. t»'^
•ehascv, au'l tlu; adi'U-
I s\''5 extra in stttk-
;,00 in aU ;-»c\a. that
shewed tlio viauo t- he
and that \ie was eut.th.l
it a<'aiu8t .\etei>a;nit •.---
to the defendant vassed
,1 ho cmhl not lnn>.fh
ln9l,ailitV-.---Heh,Mso,
„,t set uv a hen lor tlie
ntitV, for the distress « a-,
i.Muent eveditov of a rM\.
utitled to enforce vayuu.Mt
;":, foveclo>^uve ut the rad
i.Hl to liave a -.nauag.r or
,vt\kin.' avronded ; au,l.
:^i;t':theU-.seinthe.ase
"to enforce his hen tor «n.
t:UViet. c.n, s. ■JT,en.hk^
.vnce« to a uuuudaeturer to
,;,?. a lien oi. warehouse n-
n^b- Kvanted to U>e uia™-
LIMITATION OF ACTIONS AND SUITS.
2122
the suit. It appeared iu eviileuce that the plain-
till' liad no title to the lane, but that tlie former
(pwner of it had given him to understand tliat
the lane would never be built on. At the hear-
ing the plaintill was allowed to amend liis bill,
bv striking out the jiart elaiming title to the
lane ; and a j)erpetual injunetion was granted,
restraining defemhints from eh)sing the hiue — tlie
delay in liling tlie hill having been satisfactorily
accounted for — with costs, less those occasioned
by jilaintilf's claiming title to the lane. Bhj'j'ir
V. Allitii, 15 Chy. 3,')S.
.IFK ESTATE.
, KsTATE-Wl'l-
liciHT-nousE.
LICHTS.
\ theothcr t '^l^^^^^^^,^ ,^^^^
Lindowhad Wis ^^^^^. ,^^^,,,,.,
It- Tbe^nJ"-^"^-^ ^"^'^ 'K
I'^'^'^thei custom for t\u. u^u.s
Itani then cii"-- ....ivik-e *;«
Veryinivrt'^"*^ '""'1. huvv.'a*«i
^lfophavu.gl.W'\.v ,,^^,,
|;,,rdoor-w-y"'^^^^:'^„„l,..,
'Ue^^^t^'^lw^nlhS^hS^a
LIMITATION OF ACTIONS AND SUIT.S.
1. Cl.VI.M to ItEAl.TV.
1. Optvitrwii of tin- Stahite, 2122.
2. Sattu-i' ami Provf of J'oiiwuskm, 2122.
3. Pom'-moH he/ore 4 ivill. /T. c. 7., 2123.
4. PuKS)'Hnlon lii'/urr Pnlciit, <ir a.i (i(/itbi.il
tin- Cruwii, 2124.
5. PonKCMion ((.1 iiiiniiiat Piitcntcc, 2125.
(J. Tenant in Tail, 212().
7. Tenants in Common, 2127.
8. Lanilloril and T< iiaiit, 2127.
9. Tenant ut I)';//, 2127.
10. Mortijaijor and Mortyaiji'c, 2130.
11. Scrraut or Caretaker, 2131.
12. Adrer.se Po.i.se'<.'<iou, 2131.
13. Krcllt-iire Posneaxioil — Po/meniiion hij or
amoiiij Ife/atires, 2132.
14. Artnal and Const ructirt Possession.
(a) ]yild Laud, 21.34.
(b) Mistake ill Biinndaries, 213()'.
(e) Other Cases, 2137.
1,"). Disputtd or Mistaken lioaiularies, 2137.
11). (.'olllillUllUS Possi'Sxidll, 2141.
17. Entri/ or Claim, 2142.
18. l)isrontiiiiuuic( and Disjiossession, 2145,
19. Aruiilanca hi/ J'roress, 2147.
'20. Acknowledijment of Title, 2147.
21. Cases under the Qnh-tiwj Titles Act, 2148.
22. Other Cases, 2149.
II. Pkusonal AcrtoNS.
1. When the .Slafiitr heijiiis to rnn, 2152.
2. Aekiioirh (himent in liar or Payment,
215.3.
3. Aividanee hi/ Process, 2159.
4. Sjiecialties, 21()0.
5. Other Cases, 21ti0.
III, Disabilities.
1, Ahience from tlie Coiintri/, 2102.
2. Olhir Cases, 21(13
IV. AituEAKs OF Rent ok Lnterf.st, 21(15.
V. TltVSTEE.S AND AuENTS, 21()().
VI. I'iiu.u' Ofku'eks, 2Ui7.
VII. AdUKEMENTS TO WaiVE ■■'HE STATUTE—
Fkaud, 2108.
VIII. MlSC'ELLANEOrS C.V.SE.S, 2170.
IX. Actions on Bills and Note.s— .S'.c Bills
ofJ']x( iiAS(iEANi) I'noMissouv Notes.
X. Defence of Spatcte to .\rnoNs koh
Kei'oveuv of Costs — .'iee Attohney
ANU SOLIOITOK.
XI. Dormant Ei^rrriEs Acts— .SVr Dormant
El^l ITIE.S.
XII. Actions of Dower— .S>/- Dowich.
XIII. Actions on Insi-rance roLiiLS— .nVc In-
SIRANCF..
XIV. L.u'iiES — See Laches.
XV. I'lOHT TO ItEDEEM-.SVi- MoRTU.MJE.
XVI. Ql'ASHINO llv-LAWS —See MiNICIPAL
Cokfohatiovs— I'riiLii' Schools.
XVII. Actions aciain-st Hailwav Companies —
See HaILWAVS ANH ItAILWAV CoM-
I'ANIES,
XVIII. Easements iivI'reschivtion .sVi- Wateii
ANii W.vter Coursks— Way.
XIX. Actions aoainst ^Iinhifal Coufor-
ATtONS FOH NoN-UKI'AlR OF Ill(;ll-
WAYS— -Vk Way.
I. Claim to IlKALrv.
I. Ojiertitiiin of th< Statiile.
The right to laud is not barred by forty years
want of possession, unless some other person has
also been iu possession for that time. Ketchiuii.
V. Miijhlon et al., 14 (^). li. 99.
In ejectment, where the defendants cl.aimed
title by possession, and the plaintill' was found
to have been out of possession for twenty years,
the jury were directed that to entitle the defen-
dants to a verdict they nnist shew twenty years
continuous possession in themselves, and those
under whom they chiimed: — Held, a misdirection,
for an owner out of ])ossession for twenty years
may be barred, though no one of the occupants
may have obtained a statutory title. A'///' v.
/iieiirjioraled Si/noil of the J>ioee.v of Toronto, 33
(I B. 220.
To bar a jdaintitl' in ejectment under the
.Statute of Limitations he must not only have
been out of possession for twenty years, but
there must have been actual jiossession by
anothei'. Lloi/il v. Ilcinlerson, 25 C. P. 253.
2. Xidnre and Pronf of PoSfdsslnn.
Qua're, as to the effect against the true owner
of a succession of tresiiassers taking possession of
deserted land at intervals, some of them liefore
the 4 Will. l\'.c, 1, and not claiming umler each
other. Doe d. Baldirin v. Stone, 5 Q. B. 388.
,Send)Ie, that the payment of taxes in itself
sigiiities nothing in making g<iod a title l)y pos-
session. J)oe d. MeDomll v. /t'attra;/, 7 Q. B.
321. But see, 0(uitra, Jhiris v. Henderson, 2!)
Q. B. 344. See, also, 7><"' d. Pern/ v. J/ender-
son, 3 C^. B. 480.
In an iietiou of ejectment by a sou against his
father, the plaintiff claimed under a deed from
the defendant. There was evidence to shew that
since this deed the defendant had been more
212.'?
Ll.MITAT.Tt»N OF r CTIONS AND SUITS.
than twt'iity years in jxjsseasion, without any
rei'ogiiiticin of tht^ ])liiiiititl''» right. 'I'hu jihiin-
titl', to ruiiol tliis oviduiico, atteniitted to «liew
thiit iluring a jiart of that jpcridd tho (Iffcnilant
waH ill iios.iension as agent of liis (tiiu iihiintill "»|
hi'othur, to wi"iii ho had given a lea.se ; and
among other evidenee he oHered a paiK^r in tlie
(U I'eniiantH liamlw riting, jturiiorting to lie a
h'ase tVoMi tile plaintill' to I>. M., iii.s hrotlier, of
certain hmdn, inehidiiig tiie jireniises in (|UeMtion,
for a part of the time (hiring wliieli tlie defeii-
ihitit eliinu-d to have iiehl adversely. At the
font, Imt not ill the defendant's wiiting, was
written the jdaintitl's name, and the word
"eopy." N'o proof was oll'ered respeeting this
paper, exeejit that it was in the defendant's
haiiilwriting : Ilelii, on motion for a new trial,
that such paper should have heeli reeeiveil.
Drainr, .1., diss. Mr(Jti(iii v. Mc(Jii<-in, \Q (i.
11. \\y.\.
The defeu(hint lived on the lot adjoining the
land in ((uestion, and there was eoiitlieting evi-
ileiiee as to the nature of the ]iossession iield,
and tlie aets of ownership exerei.sed liy hini over
tliis land : - Jleld, that it should have heen left
to the jury to say whethei', under the evidence
set out in this ease, the possession held liy the
defendant was of that constant .iiid \ isihle kind
which would be suflicniit uii(Ur the statute.
Doi d. Sh( jihiril v. Jid
f). 11. :!10.
Held, that upon the e\ idcnce of title liy pos-
scssidii in this case, the jury iiroperly found for
defendant as to t'.ic c!c;ired, and for plaiiitill' as
to tile unclcai'ed. land, -i to v . '> latter he
jiroved only chopping trci and ^■ntting woo<l at
ditleri'iit times, amounting only to occasional
acts of trespass. Allituii v. Jfii/imr, 14 (). 15.
4.")!».
Held, that the evidence set out in this case
was insullicieiit to establish satisfactorily a title
in defeudants liy [inssession ; and that there was
less, if any, proof that the grantee, or some one
chiiniing under him, was aware of such posses-
sion. The jury having found in their favour, a
new trial was therefore granted, witli costs to
uliide the event. Yniiii<j\. IJ/lult, •_»;{ <). B. 4-_'0.
A per,sou seeking to invoke the aid of the
statute against a cl;iini in respect of lands must
shew that he, ami those under whom he claims,
have heen in )iossession of the land, or wliat in
law is ecpiivalem; to possession. Arm r v. Jh-
Kiiiiiii, y L'hy. I'-JO.
3. ru.'<M'^.-:;„lt liifun- 4 WW. IV. r. 1.
The 4 \\'ill. I\'. c. 1 s. 17, has a retrospective
operation. JJije d. McKiii) v. I'linh/ ct t;/., (J
O. tS. 144.
A., in 1S17, agrec<l witli B. to purchase land,
and was let into possos.sion. B. died before the
4 ^VilI. IV. e. 1. v., the son of A., made a
bargain with I)., the hus1)and i/f the lessor of the
plaiiitill', to whom B. had devised the land, and
f.ails in his payments, upon which ejectment was
Lroiight to dispossess him, and was discontinued
at his reijuest in 1834 ; after this, the lessor of the
plaintitr lirought her action of ejectment : — Held,
upon these facts, that A. became a tenant at will
to B. in 1817: that upon B.sduath, his tenancy at
will determined ; that that reliitiou being at an
end before the 4 Will. IV, c. 1 was passed, the
time which tlmselajised was not to be taken in)
account as a part of the twenty years : that tli
ejectment in 1 834, while it detenuiiuil t||,. ^.|
aney at will, gave no new starting point, ;ui(| lia
no retrospective ojieration ; that the les>(ir (,i tl,
plaiutitr by her consentiiig to defendant's icinaii
iiig on the land, after the interview ol l,s;u, i,
vived the tenancy at will ; and that as t\»(iif
years hail not elaiiscd since, the lessor (<\ tlj
plaiiitill' was entitled to recover. /Jm ,\. J{;,„,
liHi-ii V. Sl,ii;u-t, ,-) (,». IJ. 108.
4. Pv-l.<('.l.siull Illj'llVr /'(l/l ll/, or (!.■< IKJili 11.^1 III,:
( 'rnicii.
The Statute of Limitations does Hot run ai.',iiiis
the crown. J)ii>- d. Il'r.,^ V. Ilmntril il nT "> v
,S. 4i;-_'.
The Nullum Teiiipus .Act, !»(ico. 111. c. IC \
in force in this jirovince, Init it does not aiiiil
to the unsurveyed waste lands of the ciiiHii
Iti'ijiiK'' V. MrC'i.riiiU-k; 18(.>. B. 131.
I'oiiitc an I'ele Island, in lake Krie, ainl fnim
iug by law part of the township of Mei>i>,i, Ij^,
been occupied by ilefcndaiits and tliosi; ^|||||^,
whom they claimed, without intcrruiitioii, sIik-
I 178!t. It was not shewn that the posscssiipu In.],
had been other than that of tres[iassci's, uur tlia
! the crown had ever taken charge of cir iVLoivc(
any rents from the island, noi- that it had beinsui'
veyed, nor the title of the Indians e.\tiiiL;iii>ln.,l
and it had never been assessed or retuniod «■
assessable ; Held, that the crown was not hariei
by such possession. I h.
I'laintitl' and defendant held the imitli and
south halves of a lot rcs]iectively ,is Icssee.s li'dH]
the crown, defendants entered and \wV\ iina
session \\\) to a certain line for uimv thai
twenty years, and the iilaiiitilF had IilM '
remainder for some sixteen years. Tliuv tinii
each obtained patents for their lialvcs, ainl ..J
discovering that the lot overran, and that till
defendant s fence encroached upon his half, ip|aiiJ
till' brought ejectment : - lleM, tliat \\<; wj
entitled to recover: that the possessidii hv
fendant could not all'cct the title derived liiidJ
the patent, for the statute did not luii while til
j fee w;is in the cro«ii. Jdiu'iixim \. //mhr ll
i}. B. .")l)0.
I The plaintiff' held a lease of a lot fium t!J
crown, which woiilil expire in 184."), and in l\;f
allowed defendant, his soii-inlaw, to gd inmijl
portion of it, which he lichl for iiinre than twciitl
years. In 183!) the plaintiff' agreed to |inivh;i-l
from the governiuent, and [laid an iii.'^tulMuiif
and in 18r)(i obtained his patent, when liuhiipii:.iJ
ejectment against the defendant : llehl, atiirii|
ing the last case, that <lefeiiilant's ii<i.<.<t.fsi.i,
could not avail him while the title was in ti.l
crown, and the idaintitl' must recover. 7>/iivf
v. Cuj; 18 q. B. 51)4.
On an information for intni.-iion upmi laiul
the crown : — Held, there being no iniinf tlial
the crown had been out of possession furtwciitl
years, that under "not guilty" defemlant nnill
not give evidenee of title under a ciuwn Itasef
Held, .also, tliat the crown on this plea wurenof
entitled to judgment at once, but iimstgnili
to trial to shew the intrusion and damages ; am
because defendants uniler the plea might .-bed
■>.
ill
21-25
Li:\[ITATION OF ACTIONS AND SUITS.
•2126
twenty year. : tlMt th
it ,\ctfniniuM\ t\..- Uu-
. starting lH'i;>t, a»'\^''>'^
. that thi;Uss"V..t the
;^',tevvic^von^;U,n...
auil that as t«.iity
jh„ il. A ;»:(■-■■
■iU
J. lOS.
waste '•>■''",.,,
^•-^^':r!tth:;;:::^"-'-j;;^^
;tl .-i^:^tithaah>.u.«v.
m. V6.
1 f .lul'int heh\ the north mia
:*'"V:ntri^-i-'^''^'''r^-
loiKlantf.. eu ^ ,.,. tl„„
^^ '-"■>'"'" i.SiriK.i h.W tla.
;>"^ ^*'^^' ;•>.■. 'ii-y^''^"
Uteuts tor t ;"''•( t,,.,t ti,,
^^'^^^:^;:^u;o;h.shaif,vi-
■"■"''"" 11 hi, that h. w;us
-*'v'"i,;"s:;;:i!
ICVOWU. ./<"""•*" '• " 'I
, ,f -i hit fvuiii tk
\>a.\ =x i:'=^^^ ' Vir, ana m is;iT
I 1 1 i-nll'l' 111 lot'') "■
l-ou\>l ^^l'" ■' ,.,\v toU" "1"'"*
viehheliei'i" ^ ^^^^^.,,,^^^
,theV^^^H>ttt.be J^^^l,,,^.,,,
une.lhisi;;vteutwhen ^^^_^-_^.
;ase, tl'f'^;, title was 1" tU
been out ot po^.;- .,„,iJ
lev "not g">l ;';'*;,,„,„ U
&Sar^-£t-t.tj
tlie crown out of posscwsion for twenty years,
and thus juit th(; crown to proof of title. IliijiiHi
V. siiiiK^ii, •21 <)■ K r):v.).
'I'lie statute of limitations docs not run ai,'ainst
the crown, ami it makes no dillcrcnee that the
land is vested in the crown as trustee. Where,
therefore, in ejectnient liy the erown for land
held as trustee for the t'niversity of Toronto
iiiiiler C. S. ('. c. ()"i, s. ()."), it aijpeared that
(lufendant had held (losscssion for twenty-seven
years, the iilaintill' was n(!V(i'thclcss -Held, en-
titled to succeed. h'ajhKt v. WiUhuu^, 'M (). \'>.
See D'lf FU-.<i'r>il,l V. Fiiitt, 1 Q. 1!. 70, p. 212(i.
'.■'hill II-' il[lil'iil'<t Piitintir.
r. c. c.
ss,
5. Poxsi
[Sec.; iiv//. /r. i: I, .1. 17, ('. s.
f, „', (imiwliil III/ ,.'"- JS \'ir/. r. ..",>.]
In ejectment the hurden of proof to shew that
the statute of 4 Will. IV. c. 1, s. 17, is inap))li-
lililc is thrown upon defendant. Jhn' d.JIrKai/
V. l'iii-ih/<l (il., ()(>. S. 144.
The efVect of thoexceiitioiiin 4 Will. 1\'. c. 1,
s. 17, in favour of a grantee of the crown who
bus .levcr gone into jiossession, is, that while
i.'iiiirant of tlie fact of his land hein;,' in the iios-
sissiim of sonic other, he is not to he regarded as
disseized, and consci|nentlv niav devise. Dof
y\,M,-(r,llU V. Midillin-inj, '<) i). B. 9.
.\iid it protects the grantee of the crown, even
tliiuiL'ii it should appear that he was unconscious
(if his title, and liclievcd that he ha<l disposed of
liisLuid
Doi- d. PrttU V. L>i/ii:^,„i, <» Q. K. -2-6.
A iiersoii holding a liond for a deed from the
latiiitee of the crown is not so "entitled to the
lauil." that his knowledge of an adverse poss,'s-
sjiiii takes the case out of the statute. Jn/iiisnii
[liil.y. MiKriimi, I()<,>. ]!. .V_>0.
In ejectment tlie idaintid' claimed under a tax
(U'll made in 1S4'2, coming within the ',\ Vict. c.
4i;. Defendant proved a pa]icr title from the
pitfiitees, and gave evidence of pos.scssion held
imii 184li, for more thin twenty years hefore
this action. The jury having found for the de-
leiiikiit : -Held, without deciiling the v.ilidity
oi the tax sale, that he had ac(|uircd a good title
mi'liT the Statute of i.imitations, against which
thi- I'laintili' was not protected hy sec. H of ('. S.
V. C. c. 88. CKshimi v. McD'imnM, 2() Q. li.
tOJ.
.\ ]i(?titioiier claiming title hj' length of pnsscs-
; m\ against the patentee of the crown, must
llicw that the patentee or his heir had knowledge
I of such possession, or he must shew a forty
years' jmssession. lir Liiief, 3 Chy. Chamb. 230.
-Tiiylor, Rcfiri'e.
k person going into iiosscs.siou under a deed
I ftim line who is sujipo.sed to he the heir of the
Ifwiitee of crown, hut who is found hy the jury
lii'itt" have heeii such heir, is not a person elaini-
atiiliolil under the gr.antee within the meaning
lofr, S, U. (". 88, sec. 3, so a,s to he relieved from
lihwingtliat the grantee, or some one claiming
iMilerhim, had notice of liis iwissessiun. Titrlii/
\y mktiiwm el at., 15 C. P. 538.
Tlie patentee may maintain ejectment against
hpirson who haa been iu adverse possession for
upwards of twenty years before the ptiteut, anil
it is not necessary that the crown sliniild proeeed
hy information of intrusion in such a ivise heforo
the grant, or that the grant sliould s|ieri:dly
convey the crown's right of entry on the 1 ind to
the grantee. Dm- d. /V/-.;/. /vi/-/ v. Finn, Dm d.
Fi/:,/i mill ,1 III. V. Cl'iirhi 1 (). B. 70.
The possi^ssioii of land by a )iersi)n deriving
title from the i lown, wliiih uiiihr the section
' will enable tiie statute to run auainst him, must
lie ;i ])ossessioii after the J'atent had issued.
\Shir,irf V. .Miir/iliil, K) (,». I'.. 2-.'4. .'~;ee also,
\ .Miilliiilliuiil V. CuiiL-liii, 22 ('. P. 3S1. Per
(Iwyiine, .J.
(^ua-re, whether the occupation of the jiaten-
tee in this case inciely for the purpose of ]ier-
foriiiing settlement duty, would have been sulH-
cient, even after tile patent, to deprive him of
the belietit of the statute. Stnrni't v. Miii'/ilii/,
MU). P.. 224.
<,tua're, ]ier Tiobinson, < '..f., whether when the
crown graiiti lands of wliieli another is in posses-
sion and continues in possession twenty years,
the grantee ^^hll h.as never been iu ]Missessiou
is barred, 7/(7/ v. MrKhmon, \(\ (). B. 2I(i.
In ejectment for land in the townshi)i of
Mono, the ]ilaintiir claimed under a I'.eeil from
M., the ]iatentee of the crown : the defcnd.ant
by adverse possession. M. had conveyed to the
]ilaintiH' in 187,'^, being then eighty-foiiv years
old. It aiiiicared that in .lanuarv, IS.'i."), one
H., describing himself as .ittorney to M., and
asserting himself to be fully empowered by M.
to locate and settle 100 .acres to which M. was
entitled for militia scr\'iees, jietitioned that the
location might be made in the township of Mono
or Caledon. iu M.irch. |S.'!.">, a location ticket
■was issued in the n.aiiie of M., for the land in
i|Ucstion, but statini;' that no patent should issue
until a resident settle)' h;;d been est.-dilishcd on
the lot, who should occupy and ini]irove the
sanu^ within six months frmii the date of the
ticket; and in |)ecenilier. iSIi.">, a jiatent issued
to ^^. — M., who was examined as a witness,
swore that he never knew H. or gave him any
authority, and that he knew nothing of the lot,
until the plaintitl' a]iiilied to him for a convoy-
aiiee : Held, that there was (■videiice for the
jury that M., by himself or his agents, had
entered u]ion the land after the i.ssuing of the
])ateiit, or was aware that it had been so entered
njion, and that evidence should have been re-
ceived of the acts .Mid statements of H. relative
to clearing the land, so as to enable the statute
to r'ln ; and as this evidence was withdrawn
from the jury, and the only qiiestion submitted
was as to the identity of the i.ati'utee with the
]ilaiiitift"s grantor, a new trial was therefore
, granted. (Mi ,ap|ieal, the iudixmcnt was upheld.
I Anii-t/riinij v. Sliiniii, 2,") C. P. 108.
.See Youna v. Ellhtl, 23 Q. B. 420, p. 2P23.
(5. Ti-iHiiil In Tiill.
Before the passing of the act respecting the
.a.ssurance of estates tail, a tenant in tail executed
a deed jiuiporting to convey the ]iroperty in fee,
and gave up possession to the jmrcha.ser ; — HeM,
I that the statute did not begin to run until the
' death of the grantor. Re Shaver, 3 Chy. Chamb.
i379.— Mowat. .
11
2127
LIMITATION OF ACTIONS AND SUITS.
,'■ '!p ii'fl''' 1
■ ^Mi ■• t' : 1.
1:' ■ ■fn«'!'Ji;;
■"!
1 !
i
li!
■J
;
■ i i
j 1
fi
^ r; ^'
!:■! '
;!;■:
U
■im-
t-
^M
i
I ■
■ ; -
If«
7. Ti limits ill Coiiiiiwu.
W. S., 1)V will, (levisi'il to his wife, \\. S., the
one-thiril nf hit two, that is t" say, the jiart on
which the oirhanl stain Is, iliiriiiL' her life ; anil
to his tin-ee youngest sous. A., ^., and U., the
whole of the said lot two, to lie einially divided
between tliein, after tlie deeease of their mother.
The iilaintitr claimed one undiviiled tiiird of the
wiiole. as eldest hrother and heir-at-law of U. :
— Held, tiiat the right of entry of U. to the two-
thirds, upon which there was no estate for life
created, and of those claiming uiuler him, accrued
uiion his majority, and twenty years' possession
hy d"feudauts had liarre<l that right ; and there-
fore that the plaiutilV could onty succeed as to
the undivided one-third of the orcliard or centre
third. Shnir v. SIkih; 8 L". W 270.
A. devised lands to his ,3!) gr.aud-children, as
tenants in common. A division took place by
mutual understanding, there being no written
couvej'ances, and each party took possession of
ft certain jiiece of land, 'i'lie jiortion taken by the
grand-child through whom defendant claimed,
afterwards turne<l out not to belong to the tes-
tator, and in lieu thereof he took a certain other
lot, which for some reason had not been allotted
to any of tlie devisees. Tliis action was com-
menced I'.") ye.irs after he or those claiming under
him had taken possession, by one of the 3!) grand-
children : — Held, that the plaintitl' was barred.
Held, also, that the party through whom the
defenilant claimed, being one of several tenants
in eonnnou of the whole lot, possession of part
must be considered as possession of the whole,
and the case did not therefore come within the
decision of Doe d. Hill i: (lander, 1 Q. H. 'A.
Jh'ijurx V. Uui/h vt ((/., 9 c. r. ;r,\.
S. LiiiKUiinl mill Ti-nmit.
"Where a landlord places a tenant in possession
of lot one, and the tenant knowingly encroaches
on lot two : — Held that tlie tenant's occupation
does not enure to create for the landlord a title
to two. JJoi' d. Shi III li V. LiHV(;il.-i, 3 (,). 15.
411.
Held, following Hood. 1 )avy c. Oxenham, 7
M. it \V. LSI, tliat wlicre, in tlie case of a lease
for twenty years, the lessor permits the lessee to
continue during the term without payment of
rent, the statute does not begin to run against
the lessor and those claiming under him until
the determination of the lease. Linn/ v. J'om',
17 <-'. v. 180.
9. Teimiit at Will.
Held, that where A. commenced his posse-ssicm
by the permission of H., and upon a contract to
purchase, H. must be held as in the actual pos-
session of the land, through his tenant at will
A., and as being dispossessed at the end of the
Hrst year's tenancy ; and that therefore the 17th
section of 4 Will. IV. e. 1, woiihl apjily so as to
bring B. within its operation. Due d. Ptrri/ at
id. V. JI<'iiiki-M>n, ;} Q. B. 48().
One L., in 1822, obtained a jiateiit for a lot on
■which he h id previously lived for several years ;
but before the patent issued lie had removed to
another part of the country. After his removal
one M. made some agreement with him to pur-
chase the lot, and lived on it t 11 182;?, wliin
died. M.'swife, soon after lis death, ilisiui
of the place, or her right in it, to W., defeinlai
father, who occupied the adjoining Icjt. |t,
not appear that M. ever had any interest beyc
an agreement to purchase, or what were tlioc
ditions of liis agreement, or what his \vifc
ceived from W. , or that she gave him a wiit
of any sort. AV. built a house on the lot, wh
was occupied by himself, his widow and mnxn
succession, until 182."), after which it ivin.iii
vacant. The defendant lived on the lot aili(
ing, and there was contlicting testimony as to
nature of the possessifiii lield, and the acts
ownership exerciseil by him, over tlic lain!
(piestion, up to this action. The above facts w
relied on as entitling him under the Statute
Limitations. The plaintitl' proved that in 18
L. conveyed to S., her hnsliaiid, under wli
she claimed .as devisee : that S. had gdnc t\v
expressly to see the land, in 18.30 and I8.'i2
each occasion taking with him persons to wli,
ho proposed to sell : that on the lirst visit tl
sav/ the defendant, who made no objection wli
tohl liy S. he had come to take possessimi, :i
that he was going to sell the pro))erty ; and tl
on the second visit defendant agreed to purcli;
the land from S. , but afterwards faileil in t
payments whicli he had proiiiisc<l to niul<o;
Held, that the tena':cy liy defendant nji tn KS
could lie considered only .as a tenancy at will
the widow of M., under whom he claimed, cmil
for all that ajtpcared, have given no better li'h
and that the entry in LS.W was sulliiicut t'll
termine the will ; that the defendant's agroeiuc
to purchase iii 1832 constitnteil aiie>-, tenaiicv
will, and the statute began to run at tlic exijii
tion of a year from that time. Ddi' i\, SIh iih.-^
V. Bmjli'H, 10 Q. B. 310.
A. entered into possession in 183,"?. aiul in Is
agreed to purchase fr<iiu B. , the owner, tlai
clnisc money being payalde by instalnuiits \m|
interest, the last of which would fall due in Is.'J
when a deed w as to be given. Xothiii" was
in the agreement about iiossessiou or tlie nd
to it, ami A. continued to hold for iiimv tlj
20 years without making any payment : -He
that A. was only tenant at will ; tint the \J
determined at the exiiiration of tlic year IrJ
the execution of the agreement ; and that
bringing ejectment in 1857 was I arreil. J..
V. C'harrlmi,/, 1(1 (,). B. 9.
B. entered with the consent of the owuir.
the evidence shewed possession in li. aiici
successors for 21 years from B. 'sentry :-Hrl
that the statute began to run at the ex|iirat|
of a year, and the plaiiitilV, claimiin,' nnili! I
owner, was barred. McLanii v. .]furjilii/, {!il
B. (i09.
, In ejectment, defendant claimed uinlerailJ
from one C The land had been gr.uitel tii .\|
married woman, and C. proved that in ISj."
got a deed, since lost, from her and her hihlia
on which was endorsed a certiticate oi A. V
amination and acknowledgiiicnt by twu iiiiii
trates, both dead, before whom lie timk lierj
that purpose. He bought out the intiai'sl
one K., who was in possession under auagl
ment to purchase from A. and her luishaiul,,!
he paid the balance due to tliciii hy K., fif
whom he received possession. A. ami lierhiisk
having died within the last live years, thjirliJ
:h.
2128
•'12'J
LIMITATION OF ACTIONS AND SUITS.
!130
„u it t 11 182r;, NvWu l.e
.vhadauyHitcTfstWynu.l
.,.<. or what wuvo the .(m-
^„t: ..V what Uis ^vllo V.-
at;hegavohuua.nl,n«
t a house "11
tl\i: Int, wliwh
,.U Uirt wi>U.w anil s.ms, lu
- 'iftcr wUich it nni;ii\inl
mtUve.l«>»tliolota>lv.m-
tVi,.tiii" testimony as ti.tUu
; 'eld, and the act. of
wlum, over tlve Uu.lm
.Jti.u. Tlio above (acts ^vore
:" him uudev the Stat^Ue ,.
i..;„tia" iivoved that in I i4,
^'^Ue imlbaud, unde.-wl>,m.
' Hiat S. liad gone twicu
f Tvud in IH30 and IS;V2 n.
' 't-i, 1dm i)crs<ins to wlinn
''uSoHlU-t visit tW
Xmadcn..ol.ieet>onNvl>eu
^'::iUhev;o,lny;anatU.t
1 f ..Viiit a"i-eed t.)\>nrAasu
^'S^'Kvvavds faded nahe
\ La i.vnniised tomakf.^
Vulvas a tenancy at will as
■" w\homUeelauued,>-»»M,
i»-^'V ''''c^,,? ^vas sullieieut tn ae-
ivtrtte be&vii ^;' ' . , ^,,,,(
,,„n that tune. V7o.
. B. 310- ,
•,>,! in 1?3'.V and n\ IS'.U
r^':i?omK,tii;-nev.tiK.vv.-:
P' vdlo hvinstalnu.ul.«itli
bf Should fall du.n>is;i;
r"' riven Nothin-\vass;ll.l
H*"'"*i\ms.es.ion or the right
U=^^'''"^l';"t'A,l for move than
„t "'■^1^'"«,'"\,. u"; tint tho will
llytenantat ' . .^,^^,.,,,„„^
the exi-iratum _ . ^^^,^^ ^_
J'.H'il
ll the 1
Irrod
I c ♦■iiii iieveeniei'.- .
in? iu IS- -- '■■'''■'''■
ui ti- 1^- ■'• ,1
,„>f i.f the iiwnor, aiiill
•itU the eouaent t »
.Uevvedvos-- --,,,,.„,!
r.^l ye=v'-«""" .^t the exvivati..J
^dnt>lV,clain>u.-mu'
^-'\l^1S.^:;"o"t the uito...
liroU'dit ejoctineiit : - -Held, tliat tlic plaiutiU's
were nut l)arred liy the statntu, t"(ir that ('.,
under the cirounistances, entertMl as a (lureiiaser
fiDiii A. anil her inisliand ; that their deed ti>
liim being void, he held as tenant at will ; and
tlu' statute did not be;j;in to i 'in for a year, .sinee
wliieh forty yeara had not elapsed. Quaere, as
til tlie effect of the statute if K. had been merely
:i trespasser, audi!, had obtained jiossession from
liim, yettinj; nothiiii,' from A. but a void decil.
jliDci/ ll id. V. Varil. it iil., '2'> Q. 15. 501.
On the 0th January, 1S44, one W. took po.s-
sessionof the laud in qnestion under an indenture |
ofleaso for four years, ex' iiteil by ('., the owner, i
umhr power of attorney, at the rent of L'l.'i a
vear. 'I'hia instrunu iit also contained the ri^ht ,
ill imrchase for £'2.")0, t.")0 to be paid on the
esecutiou of the instrument, and the balance in :
t'liiir iustalmenta of C.")0 each, on the 0th of .fan-
jurv in each year, the lirst jiayment to be made
oiitbeOth of January, 184.") ; and if the jmrchase
(UTC carried out, in lieu of the rent reserved a
siimeipial to six per cent, onthe original purchase
miiiiev should be paid. \V. made the first ])ay-
jHiit of foO at the time of exeentinj,' this instru-
iiRiit, and deposited t.")0 in the bank to meet the
stoiiiiil, but the person in whom the ler;al estate
MS '-ested having di(;d it was not paid, and
niitbiuy more was done. W. remained in pos-
sessiiiu until his death in 18,")0, when ]v; was
1 iiioowilcd by his son, to whom it appeared he
I hail I'l't-'viously sold, and the son conveyed to the
ikfeiidauts, who entered and had been in pos-
I itssiou ever since : Held, that H., the plaintiff,
claiming under C. 'a will, was barred by the
I stitute. Held, also, that the fact of the son ,
I shcwiii" to the defendants when he sold to them |
1 a letter written by ('.'a attorney at the time of
1 ills father's purchase to the person then in charf^e
liii the land, to deliver '/osscssion to his father, |
liliilimt create a new ten.incy at will between the !
I lieiiiiilants and ('. Hold, also, tliat the execution
(oiaileed in lSii'2 by W.'a heii'-at law to one 1
Ip,., who in 181)0 conveyed to the ]ilaiiitiir, did |
liotilefeat the defendants' title, as they were in
l[«s3e3siou not in privity with hini. Calinnr v.
|M CttliiKu- v. Erk, 22 C. V. '>M.
In ejectment it <ai)pcarcd that in M irch, 18.")0,
■tlie vlaiiititl told his son, then over 22 years of
lisi, ami married, and who had up to that time
Iw with and assisted the father, to go and live
Imaoertain fifty acres of the lot, the land in ,
lijiitstirtn, which had been previously measured |
otamlwas wild, and make a living tiiere. The j
son accoriliugly entered into possession, cleared
Karl all, erected two dwelling houses and a '
kii." fee, on it, expending some .•?.")00 of his j
rift's money in so doing, and had lived on it
|Ttrsiiioe, the land being assessed in his name
ad the taxes paid by him ; without any demand i
i [Kissession ever having been made by the |
'iticr, or any claim for rent until about a week |
minus to 1st July, 187(i, when the son refused ;
p ,i;iy anytliiug, claiming the land as his own.
ihe father stated that he intended it to be the j
Ins after his death, though he ilid not so inform
Im: while the sou stated that he entered under !
•eispectation and belief that it was to be his ,
jlvimlil not otherwise have done so. It also 1
Ipeamlthatin February, ISf!"), the son, wish- j
{ti> raise some money on the land, procured ^
(father to execute a mortgage on it for !ii!5,")0, i
riiis, the soil's, benefit, he receiving the amount j
134
and undertaking to pay it olT, which he did, to-
gether with the yearly interest as it accrued due,
and on the 'M)th .lanuary, 1871, tlic nmrtgagii
was discliarged. There was no evidence of any
communication between the son and the mort-
gagee. In .September, IS7(!, this action was
commenced : -Held, the ease having been tried
without a jury, that, as a matter of law, the sou
became upon entry tenant at will to his father,
so that the statute began to run in a year from
that time ; that, as a matter of fact, when the
inortgage was executed, neither father nor sou
intended thereby to make any change in the
nature of the son's possession, or to creite any
new tenancy, for which there was no necessity
in the interest of the mortgagee ; that the exist-
ing tenancy at will therefore was not thereby de-
termined, nor any new tenancy .it will created ;
that even if it had been so created, tile statute
would have begun to run again in February,
18(i() ; and that the ^ilaintiU" therefore suing after
ten yeara was barred, under the .'18 Vict. c. !(!, O.
Foster r. Knierson, .5 Ciiy. l.S,"), contra, com-
mented u])oii, and not followed. Krifiry. Kifii;
•21 C. V. 2,j7.
See I)ui' d. KiiKi-iliiirii v. Slin-drl, '>(). 15. 108,
p. 2124 ; \yiiriiiw'-< V. Sfr/hiiiali/, S.'i (,). IS. 42:1,
p. 214;? ; llnmri'll v. Ilrwl,i:-<iw, 22 C. V. 180, p.
21.3.'}; Mi-XUh V. Miiiiro, 2.-) C. 1". 2S>0, 2i;{0.
10. Mortijiiijur ami Mniiiimji'i'.
When the mortgagor is in jiossession, a mort-
gage may be i)resuiiied satislied after twenty-
years from the payment of the mortgage money.
I)i)i' d. Mrirrii/iir v. Hiiwlci , Dur d. J/i'dni/nr v.
(•;■()(/■, .'i (>. ,S. 49(5.
Under the old Statute of Limitations, 21 .Tac.
1., the possession of the mortgagor, when not
adverse, would not bar the mortgagee. Doe. d.
iJiiiilop V. MrXah, ;-) i). K 280.
When interest on a mortgage has not been
paid, and the mortgagee has never entered, it will
l)e presuincd that the money has been paid at
the day, and coiiseipiently that the mortgagee
has no subsisting title. //(.
Where a mortgagee has neither taken posses-
sion of the land after default, nor received inter-
est within twenty years, the title is in the mort-
gagor, and the mortgagee in ejectment agunst a
third partv niay be nonsuited. Dor d. M<-I.iaii
It III., v. FUh ft III., 5 Q. B. 20d.
Where there is no re-deniise to the mortg.agor
until default, and the land is vacant at the exo-
cutioii of the mortgage :— .Semble, that the mort-
gagee being under such an instrunieiit deemed ill
possession of the land by operation of law, tho
presumption of payment alter twenty years does
not arise, even though the mortgagee has never
made an actual entry, nor reeeiveil any p lyinent
on account. A. Wilson, J., diss. 'L'lie mere
fact that the mortgagee is barred by the statute
of his remedy on thccovenant for the money will
not establish a payment >■■■> as to re-convey the
legal title to the mortgager. MaJiar v. Fra.^ir
et III., 17 C. P. 408.
A mortgagee having obtained possession by
ejectment has a good title after twenty years,
notwithstaudiug that during these yeara an ad-
miuistratiou order of the parson, not being th»
2131
LDIITATION OF ACTIONS AND SUITS.
Tii(prt!,'n^'i)i', t'lititk'd to tlie etjuity of rodemptioii, I
liiid liufii (il)t;iiiiL'iI. Criiiiki v. Walkhix, 8 < 'liy,
.•{40. ' I
\ suit cif fori'L'liiHiiru or for the saltj of niort- \
{,'aj,'iMl inviiiist;H ill dufiinltof ipuyiiiiiit, i.s not ii
suit for tlio riHcivi'ry of laud, but i.s a iiroL'i'udiiig
for tiu; rucovory of inoiiuy duu uiion tlie land
witliiu ML'c. i.^ of ('. S. U. (A c. 88. BiinricL' v. ;
JJanrid; -Jl Cliy. 3'J.
11. Servant or Carcttdrr.
Soudilo : that if dufendaut can ho shewn to
liave heun oouui>yiny the land as tlie Hervaut of [
the owner during th(^ twenty years, and not for
liis own use or licnelit, the statute will not run.
JJuc d. J'lrri/ <-/ <il. v. Jltinlirnoii, 'A <i. 15. 4S(>. 1
See, also, l^aiA. (Jiiiiisiiiw ('(iiiijfi', '>(). 15. (iO'J, ;
J), infra ; /hir d. .Si/riTf/iurii v. Ti'nl, 7 (). H. ;t7<l, i
p. 2i;«; Jiiij/aiii/v. Scot/, I'JC. P. I(i5, p. 1'13(
12. Adrcrsp PoxwhxIoii,
\\'here a line had been .agreed on liy tlio pro-
prietors of adjoining lots, by whieh they agreed
"to aliide as long as wo live, and if our eliihlreii
find it wrong they may eorreet it :" — Held, that
this was a perniisf'ive oeeupation, and eould not
lie eonsiik'ivd as an adverse holding. JJiii' d.
Mitrraii v. Miillitir.-<, (i O. S. 4t)l.
(Jn.ere, as to the efl'eetof the statute when tlie
twenty years' po.ssession has not been adverse,
but witli the eonsent of the ])laintifl', as an aet
of kindness on his part, th<iugh paying no rent,
and aelvno\\ ledging no title. Doi- d. Siiiijth v.
Lcarui.-', •:, (). \i 411.
A., the owner, agreed to sell to I?., who went
into possession and failed in making his pay-
ments. A. then eonveyed to(!. in B. 's preseuee,
who said that he would at onee leave the plaee.
R nevertheless eontinued in possession for nune
than twenty years, paying C. no rent, and mak-
ing noaekno\\ledgment of C.'s title : — Hehl, th.at
B. 's possessi<pn gave him the legal title. JJoi- d.
Aiisiiitni V. Minthiiriic, 3 ii,. B, 423.
AVhere A. has been twenty years in possession,
paying no rent, and signing no written acknow-
leilgment of title in another, siieli possession,
whether it originate adversely to the ehiims of
the true owner, B., or with his permission, ojie-
rates under the statute to extinguish the title of
B. an<l vest the title in A. Dot d. Pirnj ct al.
V. ]I('Mhr.-<o», 3 Q. 15. 4S(J.
AVhere a son has been allowed by his father to
remain in possession for twenty years, and it
cannot be shewn that he was there as the servant
or agent of his father, or has paid rent within
the twenty years, or aeknowledged the father's
title in writing, the father will I()se his title, no
matter what the verbal taeit understanding of
both parties as to the real ownership might have
been. Doi' d. QHiiixei/ v. Caiiiffc, 5 Q. B. (502.
One A. F. being the owner of a full lot of 200
acres, in 1823, conveyed the west half to his son
I, in fee, who went into possession. In 1827 or
1828, I. removed, and died out of the actual pos-
session in January, 1829 or 18.30, leaving a sou
E., born in 1824. After I.'s removal, A. F. took
possession. t)n the death of I., A. F. brought
I.'s son, K., to live with him on the land, where
he continued to reside till .\. F.'s death
In March, IH.'!!', .\. V. made a conveyan
west half to another son of his, N. I'. |'
who died in possession in March, IS;U,
the same to his son .1. I'"., one of the defi
The mother of .1. I'', married one I,., ,■
tinned to reside on the lot witli her has
184Sor I.S4!». After \. F.'s deiith, the d
was found among his pa]pers with the si
oti'. In 1S47, I!., the son of I., bmugj
mcnt against I., and wife for this \\,
which suit was coni|iroinised by I!. ai.'i'
convey in fee to .1. I''., the son of N. I',
west half of the said west half, and li\
behalf of J. F., agreeing that .J. F. slioulc
coming of age, convey in fee to 1!. the (
of said west half of the lot, 1!. conveyed
tion to .1. I''., but •!. F. never conveyed t
east half of west half, the subject of tlii;
In 1847, after this settlement, !!. cnnvi
(lortion in (|Uestion to one I>. I'., tluini^
the plaintifl's claimed, while L. and wife
possession of the lot ; — Held, 1. 'I'liat tii
of A. F.'s possession was for the jmy t
mine ; 2. That while I!, was living witl
on the land, he could not be treated a
possession. A verdict for the iilaiiitilV
held. Fnisir it a/, v. Fraxi-r el at., 14 (
The owner of land put his father in jki
in 1847, luider a parol agreement thattli
should clear up and cnltiv.ate the land
to his b(Mielit the jirolit thereof. Tlie fa
maincd in nndistnrlied possession tnitil h
in 1870 :— Held, that the father had <il,t
title by lengtii of possession, and a bill
obtain the delivery up of certain deeds e
between the father and another son, v
missed with costs. TnicMliI/ v. Con^-, 18 C
13. Exclii^t'i' Pomhi'.i.-i'udi — Pim.ft'.^-ninii liijn)
Jti'lnthh'it.
In 1822, A., a miniac, conveyed lainl
who then entered into possession. X.
182t>. (_'., his eldest .son and heir, lieeuiii
in 1821). He died in 182!l, and his l)n.tl
heir, 1>. , the lessor of the jilaintilt', hoc:\in(
in 1831, and brought his ejectment au'uiiisl
the ground that his father was nun cnii
the time of his executing the deed in IS:
brought his action more than ten years al
lunatic died, and after he himself eaiae
and more than five ye.irs after 4 Will. IV.
Held, that ])., under these f.-icts. was 1
and. Held, also, that B. eould not Iiclmhi;
in possession .as the servant or bailitl'df tli
tie. J)of d. Sitrcrthoni v. Tint. ' Q. B. c
The patentee of land devised it to his \\
life, and afterwards to one of his sons in fi
the will was void. The Avidow, nuviit
lived upon the land with her chiMroii, ol;
a life estate. Her eldest son reniaiiieil wi
for some years and removed, leaving tlif
dants, (two y<innger brothers) wlm omii
until her death (nu)re than twenty years)
them m.auaging the farm during suveii yi
the time : — Hehl, that their possessiimw
such as to give them the title against their
brother, the heir-at-law. Mr Arthur el
McArthuretal., 14 Q. B. ,'544.
In ejectment, it appeared that the mot!
defendant, owning the land, lived uiwiiil
tVND SUITS.
2133
Ml.
e<l to reside till A. V.'h (lenth in
lS3(t, A. K. iiiailo fi (,•(.|lVl•Villl(■l■.lft|^^!
:i) luiiitlifr Hdii of his, N. 1'. p., n, f,,,.
Mill
II JHISXO.SSKlll III
i( IiIm Mcm .1. !•"., (iiiu
IT lit' .1. [''. niiiiriiil iiiif I,., ,■!
•fsido oil till' lot with liur IiusIimh,! tiji
V.K After A. F.'N.loiith, tlif.ln.iltu I.
luiioiig liin jiii]pi'rs with ihu slviI- ti.ni
147, I!., thu Hon of I., lnduulit ,1,,,,,
n.st I., mill wife for tliis \vi;st 1, ,;,
Wiis ooni[)roiiiini'(l hy I!. :ij.'RL'ii|.. tr,
fci! to .1. I''., tilt) son of N. I'. 1'., the
of thu Haiil wost lialf, ami liy 1 ,,
. F., agivciiij,^ that J. F. sliouM, „\\]tC
iv^v, convoy in fuo to !!. tliu {.;i>t half
it half of the lot, 1!. I'oiivL'yt'il tliiiiur-
I''., hnt.l. F. iiuvcr coiivi'ycd til l!, tlie
f wost half, tlio xuh.ject of tliis iirtimi.
iftur tlii'4 sc'ttleiiiL'iit, I!, convovi'iltlh'
i|iU'»tioii to oiu; I>. 1'., tiu'iiiiul'mli.iii,
Us claimed, wliilu L. and wittMvoftiii
of thu lot : — Hfld, 1. 'I'hat tliuiint'.irc
]iossessioii was for thu jury to iL.tir-
That wliilu I!, was liviiiL,' with A. F.
d, ho uonlil not liu truatud as mitdt
, A vurdiut for thu j)laiiititl'\vasii|
i.-iir it (il. V. Framr I't al., 14('. l'.;o.
lur of land put his father in ]i(isM,si,
idur a parol a^'ruuinolit thattliu f.itli,-
ar np and unltivato tliu laiiil, ta'iiii
I'lit tiiu jii'olit Ihuroof. Thu fnthcirj
iindisturliuil posiHu^.iioii until IusiKmi!
■Huld, that tlio father had nhtaiin'
iiL,'th of pos.sussion, and a hill lil^j ti
dulivury up of ourtain duuds exuriit
hu fathur and anothur son, was ilij.
h costs. Tnti'Mlill V. Corz/I-, ] 8 1 'liv. j.'ii
'n'l' Po.'fii'sAi})! — Piixiii'.-ix'nM} I"! or i/„,.,;i
J'l-httiwit.
A., a nruiiac, convuyud land U'.
eiiturod into possussion. A. (licijil
his oldest son and huir, heuanifniaa
Hu died in 182!l, ;uid liis limtliur aij
lu lussorof thu plaintill', liociiinenfaj
id lirought his i' juutineiit au'ainst R,
1 that his fathur was nnu cmiiin'!
f his oxucnting thu duud in IS'J'.'.
s action inoro than ten years afti-r t|j
d, and after hu liinistdf eaint- df ad
;han tivu yuars afturT Will. IV. c.
|)., iindur these facts, was Itiiw
also, that B. could not liut'inisii
on .as the servant or bailitl'nf tlifluij
I. Sihwrthoni v. TiaJ. 7 (,». B. XM
intuo of laud dovisud it t(i iiis witt'l
torwards to one of his sons in Ut,
VAS void. The Avidow, nuvi'itlitll
the land with hur cliildroii, claiiii|
e. Hor uldust son runiaiiieil witli|
■oars caud runiovcd, luaving tlit
■() y<pungur hrothora) wlm 0(iiitiii|
iluath (more than twenty years) m
aging the farm during su«ii ytarl
—Hold, that their possession \v:l*J
give them the titlu against their el
he heir-atdaw. McAiihitr ehm
eta I., 14 Q. B. .'544.
meut, it appeared that the motliJ
, owning the land, lived uiwuitr
LIMITATIOX OP APTTHxro .
ACTIONS AND SriTS
uh, is;ti. d,vi>i":
of tliu_del'eii,l.i|,t,"
i'"li
Vr death in i.S.-.4 Iw , , . . ^ ^^^"^^^^^ Ax\D SriTS
.in.ifoMrothor,.hiM,,,,H ",'•''' ""^ ^''-Ii-'Ht son «^,.„ i .. 21.34
tkiewerefoiuv,thors, ,Xn /, "'"' ''^•'•' ""'
"■'■if- I" l>^-'« tlio dof .n& ""■' ""^'^''•■'' t.. in
t.lii.s hrnther-indaw u '"■'■>''^^'' ""o-ninth
it,rt;a,.d,hupC;;^."teVi;r''"^
M tlie defendant el,,i„ , i ,,*'"■■* "•"« .■'dni/tte.l ;
iii"tl'- l^^■ J".sse..,sion. /};, ,''';,'''■'?.'"""'"« ^•''«''t
' ■ ;, 1, "^'""^. "liun ho
«mr of .ago in |«4,;_ ,,.^ ; "'"•^ that whun ho „,..|
'"""^■"'■t • "•'• '■>■ •"■•••■'ngoinent anii, !,
laiiiilv I o
,,„,,,„ ,,^„, ,; * ; t'^l^^f . »'"• it over sin .0 : ^ ' " ^^T »f*"''"ard;;^'
riir), was witlii tw, / '"" '""" ''<^'- ''^atl. ' t f "* ^''^' '"^■'"'■ui.s „ the to . - ,
iigit for him. ^ yoZ\t, J'"Vl"''^''<'f v-ork- ' ".id ho vof,, ' "'', '"^^"'^' •■'■^■^'■■^s.d ' "^ '^ =
-""■"i'm this uvidonuv t ; '* *'"'''^' vv.as .rear KS(i,. the , ' ■ '' '""^'"•■'•' in t
rill.tw..en father ,ni ( so tl'.l" *^'"'""'>- '•t "^■'-•..py the h n.. r'T*"'''"' ^'■'- -. n l"
citations „;., l:z.:!:^;[tu.t the Stat- ( on >^ iuh "is?;:,;?;;;';/-!;-';. niortiSi^i.::
tJ'.-it, nndor the , ""'' the ni,.rtu,.|,.o -^^ ii ,
[iti'iil l.jiiiitationsili,! ,„,f ^1 ' . -— •" .-.lo
lipiiist flie f.itlior ,l,,,i„„ 1,;''' if ;'.''■ '"•«''" to nin
Kuiitly, that the I lai rti -^ Ui'' \ '""'- '^^"■'•
U' «e,e then infan ' i ' .' -^-''''''''-^^I'ildron,
Ifet.soM, wuru not i;! , '^".';^''I 'indorthe
(a) rUdLamL
Jean actual occupation, to
I ,'
i ' u
1 ;jf h
t •
i ;
i.'ir»
LIMITATION OV ACTIONS AND SriTH.
the fxclimiciii of tliu roul ownur. Wlicro, there-
fori', II party liiiviii;; iii'iiiiisNiiiii ^rivcii him to
ficiMi|iy tlu! wiHt liiilf 111 the lot, iliil idiitiiii! hiiii-
Hult', HO far HH rcNiilciu'i' iiml ciiltivatioii wi'iit, to
that lialf, anil only riniiiiiittril ileiircilatioiH on
tliti otlicr lialf :— lli-hl, that hd riiiilil not lio I'on-
HJilcri'il an havin;; rxrliMivt' |iiiKHi-HHion of Imth
Lftlvea. />i-i il. MiDiw II V. ItiOhtty, 7 y. U. ;WI.
Iti'niark^ iijion thr iioMHc-tsiim nurcnary to oli-
tain a titU' as a^^'.iiuMl llio triii: owner, ami the
t'HVrt of MiiL'li iioMHi'MMiiiM w luMi rx tiiii lin>,' only to
part of a lot. It nnist ilcju'ml upon the oiri'iini-
Htancrs of lai'h I'asi' h JutluT thr jury niay not,
an aj^'ainst the Ici^'al titir, inopcily infer iiimNc.»(-
sion of tin: whole l:niil lovcreil )iy hucIi titli',
though the oceuiiation hy ojien aets of invner-
Hhip, Hueli as eleariug, finriu^', ami eultivatiii;^',
has iieeu liuiiteil to a purtiim ; ami lleM, that
in this c'lse there was eviilenee legally MUtlieient
to warrant sueh inferenee. Jhiiithin \. Jiihiifluii,
•J4 (^ 15. -.47.
Senil)le, tliat a snuatter will aei|nire title a.s
against the real owner only to the pait he liaH
uetually oeeujiieil, or at li'ast o\ er whieh he ha«
e.xereiseil eoiiHnuous ami open iiotoriouH aet.s of
ownership, ai.il not merely ilesullory aets of tres-
jpass, in respei I of wiiith the true owner eouM
not maintain ej-'ctment against the treHpauHur iia
'he person in possession. //'.
Where a )ierson having in faet no title has
oeenpicil pait of a lot of himl for twi;nty years,
anil other parts for a less periml, he is entitleil
only to the lirst nientioiieil portion as against the
trne owner ; anil it ean make no ilillerenee
that he aeteil niiiler a belief of title Imnestly
entertaineil. )'..////!/ v. AY/;.,//, •_'.">(.). H. .'CtO. See
also ]\isliiirt V. CiKil; |,") C'hy. '2',V1 ; Lmr v.
M,irri.'«)i,, 14 Chy. I !••-'.
Where a hona Ihle jiurehaser elainis a whole
lot, of whieh a j)ortioii is ehareil, nmler a title
Miiieh turns out to he lU^feetive, ami while eulti-
vating MUeli portion treats the \i ihl ami uneiil-
tivateil ]iart as owners umlei'sucii eircumstanees
usually ilip, there is eviilenee to go to a jury to
RUHtaiu his title hy pns-^ession to the whole. In
this ease the grantee nl the erown ilieil in KS.SS,
having hy his will tleviseil to his wife his per-
sonal property only. Supposing that it passe^il
the real e.'-itate also, she registered the will, leaseil
this lanil, one hiimlred aeres, and reeeive.l the
rents nntil Ih'^l, when she sold it, for its full
value, to one L., who sold to defendant in the
following year, there heing then ahout tliirty-tive
aeres eleared. defendant took possession on his
jnirehasu, hiiilta house, and had oeeupied it ever
siuee, having eleared almut twenty aeres more.
The heir-at-law of tlie patentee, who was six
yeai-s old when his father died, hrought ejeet-
ment in ISOS, so that the statute had elearly run
against him as to all of whieli there had lieen
possession. 'I'lie jury found that defendant had
held possession of the whole one hundred aeres
for more than twenty years : — Held, that such
verdict was warranted, and that the plaintilf
could not recover. I'er Morrison, J. — Payment
of taxe.f on the whole is an important fact in
such a (jase. /hiri.i v. Ilfiiilir^oii, *2!) (,). B. 844.
See Wi'jh' V, MirrkL; 8 C. V. 325, per Rich-
ards, J.
The possession for twenty years of part of a
lot of land hy a caretaker, expressly employed
to protect the whole, on helialf of one t||
Huch whole, ami which is iiceordiuKlv .^u i
ted from all other intruders, m.iy he h .hiiI
poMHeHNion of the' w liole to estahlish a tit||.
the statute, and nuiIi possession will imt |
hned to the part aetiially enelo.«eil and on
lliilliiiiil V. S.-tiii, IK (', 'I'. Ki.'i.
The prineipli) laid down in the last v\f
in Havies c. Ili'uderson, "-MM/. H. ;)|.t, ,,h
exercise of ivcts of owm^rsliip over uj|i|
sullieient to estahlish a possession under tli
tutes of l/iniitation, reiogni/.ed and m tol
and. Held, that the evidence, set out in tin.
of this case, was sutlicieut to shew a title li
session to the south half of the lot, tlii>in,'||
twenty-live acres only h.id hecn aeta.dlvntx]
Miilhnll, 11,(1 v. Ciiiikiiii, -l-l ('. I'. ;t7L'. '
Where a vendee takes jiossessimi
knowledge and concurrence of fiie \,
pays his purchase money, he is tn iir re"
as in possession of the whole lot, .iiiil imt n
of such part of it as he m.iy aitu.illy m i;iii
improve ; and after twenty years' |iii,Hse.<...ii
him and his successors, tin: title of tlm v
will he extinguished. MiK'iiiin,,, v. .l/,/>,
i;i Chy. IW.
To prove title hy possession the plaintilfsl
that a |ierson under whom he dan I Ii.kj
early date cleared |>art of the lot in iiiii..
Iiiit there heing no evidence tint lieilii|Ni,|
any d.iim of rigiit, it was held that -iuli ck
was not constructively a possession ul' the i
the lot, MiMiiMi r y. Murr'titni, 14 CJiy. |
(h) Minliilr in /{iiiniiliiflri.
Were A. had imiiroved on the frmit
lot, and put up a division fence hetwce
and his neighiiour, so far as his iiiij
extended, which fence was foimd ii{i.i
survey to enclose part of the aiijiiicm
Held, that though the statute miiilit Iw
owner of the adjacent lot from rc:,'.iiiiiii;M)(
sion of the jportion of his lot w hirli In. Ii;ii
fered his neighhotir to enclose I'nr iiiuiv
twenty years, yet tliiit woidd iiut ;iliiv
right to any other jiortion of his Lim
actually enclosed, as he could iiol lie ln-lil
constructively dispossessed of that jinrtiiiiii
lot which the erroiuious fence, it piMtia
would eml)race. J)oi- d. lin-kitl \, S'rjkim
r. (,i. |{. r.KS.
Although a man hy erecting ami niiiiiitii
for twenty years a fence hetweeu his aiii
ailjoining lot may aci|uire .a I'ight tn Imlil tliii
notwithstanding such fence does nut st.iii
the true line of division according to tlunrij
survey, and may after tHcnty >car.s uf
occupation successfully resist an actimi of e
ment hrmight hy the owiu'r of the .iiljuii 'in
to recover the encroachment, yet such i'Ikm
ment will not he extended hy any aiiiiliiitio
constructive possession heyond the liuiit.s Iti
in, nor give the right to insi.- 1 mi tin' ("ill's
that fence as establishing the c.iursonf tlit
of division hetweeu the lots fintlur tli:
fence has been maintained fur twenty
Twenty years' mutual aciiuiesccin'i' in a
dary line, although dilFering fiinii th:it sit
the original survey, is hindiiig upuii tlit"
of adjoining lots, especially if ujnm this as;;
V(
Nl) SITITS.
.M;iG
o wholii, on lirlialf of mn . liiiiij,,
mil wliicli i« iiciuinliiinly m, i.rntiv.
iitliri' iiitniilci'H, may lie n iiul
lUMlt
till!" w lioli; til fHtiililisli a titlr iiiiilfr
mill Hlllll |(IISHl'MMillll will imt ll|.,,,||.
|iart iirtllilllv ^'lll■ll'^'t,•ll iiuil un iihi,.,!
<<-i,l/, I'.M'.V. Mi.">. ■
|ili' laiil iliiwii ill till' last cixf 'n,,|
lli.ii.lii'.soii, '2<U). II. :t|.l, .iHtu'tli,,
U'tn lit' KWIlcrHllijl llVlT Willi |iii,,|
untaliliMli H |iii«Mi%sMiini iiiiilir tJii'Stii^ I
itatiiiii, iv('ii;{iii/i'il aiiil aittil imi,,,,,
lat till' I'viiK'iuH', Mi't iMii, ill t
11- ivjiurt
wan siillicifiit ti) mIuiw atillr \,^ ,„,
L' Hlllltll iiall' of tin; lot, lIllMlnll ;l|,|,||J|
u'ruwonly hail lnu'ii artiiallviiiTiiiii,,|
V. Cnidiin, •-'liC. 1'. :i7'J. '
VL'iiiUio taken ji(i»HOM«iiiii
uiil (•iiiu'iirrL'm'c of tlicvi „iii[|
I'l-liawo iiiiiiii^y, lie in tu iir ri';fai-il,,|l
ion iif tin: wliiik' lot, ami imt imiilvl
(if it a« liii may actually miui'V iiiulf
111 after twenty yi^ur^' |iii,-i-<i >^i(',ii u
^ micci;ns()r.i, tlio title nf \\\,. viikI.iJ
iguisliuil. McKiiiiii.ii V. .1//7a„,i//J
itlc liy i)((Hfie.ssiiiii till' iilaintiirdliiwiil
11 llliilei' wlioiii In; (.'lailiii'il liml at J
loai'L'il jiart of tin' lot in i|iiisti,iiij
ili^,' no fviiK;iiee tliat lie ilid su im,!,
right, it was hclil that siirli Avm\
stnnrtivuly a [los.sL'.sMinii nf thu iv^tij
■MiiMtrw MiinUiiii, llCliy, Ills,
)) Mlnltikf in Hull mill rli-1.
hail iiii])riivi;il on the fimit '
up a ilivi.sion feinu' hetwti'
lilioiir, so far as hi.s iiiij
liit'li fuiiuu wuH fimiul ii|iii
;ncliiMO part of tho ailjaccni , ,,
though tho statute nii;,'lit Itir
u ailjaceiit lot from ri'u'aiiiiii.; pn-
jMirtioii of his lot wliirli In,' Imij J
eighlxmr to enclose fur iiiuit tluj
,rs, yet that woiilil nut ;itlrit
ny other j)iirtioii of his lainl
ilosed, as he roiihl not he lii'M tn
ily ilispossesseil of that |inrtiiiii nil
tho erroneous fence, if in-ntnirti
aeo. JJoi' il. Ihi-lcill \. y'l'Jil'iwiij^
a mail Ly ereeting ami miiiiitiiiij
years a feiiee between liis ant (
t may aei|uire a right tu luililtlKiel
iiliiig sueh fence ihies not st:iiiit|
e of division accoriling tu tlii'iin^if
I may after twenty years nl
successfully resist an action nl ej
ht by tho owner of theailjuin
he eiioi'oaelimeiit, yet siiilu'iuim
ot be exteniled liy any aiiiilicatii;!
e possession beyond tlie limits if^
the right to iiisi.:t on the ed
IS establishing the e.iiirse nl tin' I
between the lots further tliaiii
been niaiutaiiied for twenty yj|
ara' mutual aeijuieseeiiee in a I
Ithougli dilferiiig frmii that set "j
1 survey, is binding upuii tiic ni?
,' lots, espceially if 14)1111 this asii
' n/i\i. .;^ ...ii ' I I rs.
Minilary meh owner h,n,. |,i, ,■,,,,
"''■""'■ , ""■ I'nni'iidi.M i',, "" ""'i|'l'im.nt;ci„ b
Jmii'il. //.// V. //„„.„;.,/ , / n' •' "• '^^ "il. T I ,:■■ '•••
Uriirl, 7 C. I'. I;t4. '''• "• •' ; " '■'/,.,„„ ,.. \\|.,,,„. ,.,,,,ji„^ ^_^^^
.:;: Kts:;^, ■;-;;-'■■■ " - 1 S ;:f "'- •'■'■^^- 'iEPf-''^^'
■ • ''"""""I y. f/i,ir, :,(,' .'"'!""■""..<',. I.,
('■) 'W'./' rVM,.^. ■) ''•■'*""'"'W"iaiite,U t '. '"'■
Si/in in fee .'aniiot 1... ,.,.,. , \"l- '" "• "^ l'"l "f lot livv (f" "' V'"'' "*' '"' >'>»>'
f«,e.sii,n only. />,„ ," i"' ""'■'I visible ( ] ' '"•" r"!'!"-'! ho, , .,,'■; '";" 1'"' "I' on
IS. m. '• '''■':'"" ^. ■shn/.o,,, r, i :• ''■'"•■'i"':'< to which ,:';.,:;• '"'"'-.. tlio
I vUt.
-lone 1.1 thiMi fiM' in,,,.,, tl,.,,, ,''"'' '" l"«'-<esNi„„ ' i'os.scs.se,! by I,;,' ' ■'^"'; I'"'- ••« hci,... a,/, ,.
i«"..'i''' • HUMit, V ,'"•). ^^■■■"•'^. ■"<• <is title of /!. : ••'"' ;t'..r. bcf, „,!:„''>'
™'.s title : ||.,M. ,,/.)'"■ ' ^ •. the i.n.rt- l-otl. bv f, ,.'.".' ' ". '"' "ve, an,l «„ ,..'.""!"
|,ioiie,.| thiin fi,!' „|,„'.,. jij.jii .••••■■' "■ posscNNJ,,,,
l|iilaniii,lcri,ii|. Nt.itiit,. i W; 1 '",•!■ ■^■'■■■"'''' ■'""is
Ipu's title: ||.,M. ,|,;.t tie ;„'V' ""'"""■'
Py |"i»«t'S...|oll i.s not, lil^,, t|,.,/';'^"''«"l'.s title
pHT.ei.iitineil to the |,u„| '«'l,M ■',""•'•• ''■''■*•
Hues, hut covers the n , ,1, 'l "' ■"■ti...llv
''' iiioitgag.', as well tl ' I. '•""' '"^'"'i''' 'i.
►;rt^';.i:or lives as the „tj , ''I'"" ''!'<'■>' the
■'^■"""'"i>y.Mi\„/,r'll Ij osi;''""""'"'^-
IVr Itiirns, .1. |)is,..,„ti,,„' i
Mnieliveaswx'II:.. „''';" '/'".V he of ,t
'""'i«''''«^ tl"'.vwa .: ,1;!;;""'' l"«-"«xion. ;" ;'-i"'"^t .A, ,,,„„
^'"'"'"•■'iHrlheplaiii,, ,■.'••; '';.^" tl'^'jury . ,,," V'"'!' '""I"'' t'i
I, "^ 1"'01 II lill ,1. ( I- . .I'".»
fct-nstrnetivep,,iscs.si.,| ;|'^/''''^'''''.ti..Meil
leMtimthe deatli of , ' '"■ "'''/""•'•d by
I
-'•'. p.
Il' o)i><i'-if ■' r .1.1
1. ; ' ■''W'iVt ..( lot live n I "" ""''"
, ' '> tl';; IMoprii'tors Von '"/""^''''■'•^•'l.
V''',,\ V.'eiitly. I, (f. '," '"'"■ .•l.ld lie,.. |,„ti
s^;!b'*\^.'''-''v-'\ ;f';:;''7''^''i-t...e.i
^'""'".ig <;.'s po.s..,.Msi, „ ,v ' ! '"'"•• .'"twith.
"'■"1' •"•■'.>■ vvii'M. ' ''7;'' !""t lor m, ro
l'''«'tl'.uelV.en tin. ,.,,''■:'• *''■" " hatever
; ;7-i..ee that ;:c''tt:;t:!''"^^^''-' '''■•.,,;,:
' ," ■■'At.Ul.st .A, f,.,„„ th, H '^' .'■"""•.^■..ee,l to
^;,*;.'"";' "":i.Hi...';i;, ,;■:■,::;,;;,: s»r'
'• •^''" 'I. /Jl',l/.,j. V.
'»-.n:;;::,i:'!:;-'i-'iy,i,.,, ,,.„^,,.,„.,.,^
.^;'l'l-..e,| to f,.n„ ,/ ' : ' •7.'-^- than a. it was
ITll '!>}- '^titu, l?';'^''-'; ''i-ooftim^.
I TIk' operation of tinj ,sf.,f,,f ,. ,. I -n „
Ti'i"t,sii.s,,emi,.,i I,., +i„ 7,'"^^" "' '•iiiiitatioiiM , ," ■■"■'^''•■'thothi.l.,.-,,fi,r , , .
^■" '"■ '-■'■ -™-™ s, ?;;?; «'»' s:'.:^i;.;;'ii,;r:i r »:S' i' Si
2139
LIMITATION OF ACTIONS AND SUITS.
2(), as aliove stated, conteiuling that M., not-
■witlistaiuling the deeilof 18r>(!aii(l the deliveriiij'
uj) (if possession to the defendant, still retained
a right of entry, either because the defendant
was his tenant at will and so estopped from
denying his title, or Ity virtue of his prior pos-
session : — Hi'hl, in the Common Pleas, that
whatever interest M. had in the land in (jues-
tion, wlietlier it was jiart of 2(i or of 2"), passed
to the defeu lant under the deed to him of lot
2(>, together with the appurtenances, &c., there-
with ocoupie<l, itc. Held, on appeal, that no
part of 2(i jiassed by M.'s deed to defendant,
but— Helil, tliat the iilaintifT could not recover,
for the defendant, when lie took possession, did
not enter as acknowleilging any remaining right
in M., and tlierefore, not being tenant at will to
]M. of this jiiece, or estojiped from denying ^I.'ti
title, he ha<l accjuired title as against the plain-
titl's under the statute. McXi■^ll t-t al. v. Munro,
25 C. r. 290.
In ejectment the plaintiff claimed, under a
deed from her father, a piece of land constitu-
ting part of the defendants' lot, whicli the fatlier
claimed to have aetpiired by length of posses-
sion. For the defence 1'., fine of the defendants,
stated, tliat on a survey lieing made some 17
years previously, and during the time the statute
was claimed to iiave run, it was found that the
boundary line between the plaintifi's father's lot
and tlie defendant.s', which adjoined each other,
was erroneous, and tliat each was in possession
of a portion of tlie other's land ; and that it was
tlieu agreed between the plaintiff's father, who
died some two years afterwards, and defendant,
that they should excliange the said portions,
which w.as accordingly done, but without any
deed or writing lictween them : that each took
l)ossession of tlicir pieces, but without removing
the fence whicii divideil their lots : that on the
defendant's piece, Vieing the laud in question, he
erected a log-iiouse, and had been in possessi(m
ever since, taking the crops oil' it. The plain-
tiff herself admitted an excliange at the time
stated, in conseciuence of the parties being so
found i:i the possession of each other's lands
and of defendant going into possession and taking
the hay ; and also, that on the fence l)eing sub-
secjuently lilown down, she did not erect it on
the same place as before, but on the true line.
Tlie plaintiff's sister also stated, th(Uigli not
<]uite certain, that slie rciuenibereil that the ex-
change took place :- -Held, that this was suffi-
cient evidence in corroboration under 3(! Vict,
c. 10, s. (i, (->., to render the defendant's evidence
admissilile. Held, also, that under the eircum-
stanees the plaintiff could not tjet up the fact of
the exchange not having lieeii by deed. F'mJhy
V. Petlaii it III., 2(iC. P. 483.
The plaintirt" owned lot 28 and the defendant
lot 27, ill the tliinl concession of Hamilton, be-
tween which there was no ro.ail allowance, and
tlie jilaintiff, jirevious to the survey of that con-
cession, niad'j under 2!) \'ict. c. 72, had occupied
the kind in cjuestion for more than twenty years.
By this survey, it belonged to lot 27 : — Held,
Morrison, J., diss., that tlie eS'ect of such sur-
vey was to fix conclusively the division line be-
tween the lots; but, Held, also, that the plain-
tifi's title by possessicm was not taken away by
it. Toylor v. t'ro/l, 30 Q. B. 573.
The plaintiff and dtifendaiit, adjoining pro-
prietors, on lots 18 and 17 respectively
tiiose through whom they claimed, liud oJt
up to I8(i7, according to a fence, M'hicli Ij.n
the boundary between them for thirty via
tliat year a survey was made, ' y w iiicU tl
was placed further to the e.ast. F., tli
whom the plaintiff claimed, then owiicil
north of the jilaintifl' in lot 18, and ,,1
througli wlnmi the defendant elaiiiiei], ,
the land opposite to them in lot 17. In
F. moved his fence on to the new Ijin.
said that ()., in 18(i7, told the plaiiititl' In;
occupy the strip Ijctween the old auil tli
line, and in 18()8-9, the plaiutilf cut "iniis <;
strip. O. afterwards sold to one .)., wl;,,
jtied up to the old line, and sold to dutu!
The i>l,iiuti(f, in 1872, moved the fciict; \
new line, and defendant iminediatelv niila
for wliieh the plaintiti' brought tresi'i,i>s :-
that he could not recover, for the dekiul;;]
ac(juired a title by possession, ando.'.sii
sion to the plaintiff was at most a lueiv li
which was revoked by his sale to .1., auil
gave the plaintiti' posaession so as to tntitl
to maintain trespass. Coh' v. JJnin/ Tt
lO.S.
Between thirty and fifty years aijii the n
•and occupiers respectively of adjoiujn^r ],
and 15, through whom plaiutilf ami :U:t,.i
claimed, erected and maintained at tluir
charge a boundary line fence between tlui
and they had respectively been in 11,11;,^
during that period, of the land up to the
The plaintiti' commenced clearing <iii tlie in,
rear of his lot, continuing in a .snuthuiiv
tifin until within about four chains df tin
cession line in front, when, to protect tlic L
cleared, he erected a fence across his Jut
boundary fence, leaving the piece tn thu
up to the concession line open until almut 5
teen years ago, when he put up a fence aim
concession line ; but he had always iiiaiiitai
roadway from the concession aionj; tlir 1
the fence as the means of acce^s tn lii>
By a recent survey defendants claiiiiLMl tli;
i)oundary fence w.is erronecms aiul ciu ruacL
h)t 15, and that they were entitled tu tlif
of land ill (piestion, lying l)etw ecu the n^
and boundary fence, and to the south ui tin
first enclo.sed by plaintiff across his hit:
tin t the plaintiff had acquired a titlo hy 1
aioii to all the land up to the boinnlan
even though such fence might not be uu tl
line, and encroached on <lefeiidaiifs' Int l.'i
that, under the circumstances, his milv
erected the fence along the conccssinn lim v
the last seventeen years was of im jmii,
Elliott v. /iuliiirr ct al., 27 C. P. 217.
The pliiintilf and defendant weie owin
adjoining lots in the townsliiji of Vaiii,'h;iii.
Act of the Legislature of Canada (•_',') \ i
102), h;wl been passed providing for a iiiwsi
of the township; and, according tu a:
made under the provisions of that Act, a st
land containing aliout two acres and thivo to
occupied by the defendant, it was alli'gii
longed to the plaintiti'. On tliat striii tlurt
recently been standing nine pine tiuis, stv
wliicli the defendant had cut clown. It a|j;K
that some years before 1851 a feiici; fimii
fnmt or easterly side of these lots, fllralli^l
of about (50 or 70 rods, hail been juit u)i;iii>l
then standing uu the suiipused divisidn liu
UITS. '-iUO
13 ami n reapectivuly, -mX
lu tl»ey claiiuca, h;ia o,rm,i„l
iuKtoafence, wliu-hh;Ml,cuu
.•eeii tliem for tliuty y>;us. h
r was ina.le, ■ y wIikU th,. lm«
er to the cast, t., thvuugU
ff claimud, th.iu tiwiiua to the
.iutiff iu l"t !«' .'""V""^ "•'
lie (luCeiulaut cluuuca, uwutd
. to thcni ill lot 17. In \m,
ince on to tliu new liii..'. He
IstiT, tol'l the vlaintilV lie luight
I) between the old aud the uuw
-9 the pbiiitill' e>it gni!-s mi this
rv'nls sold to one .1., wliu„.xu.
old line, and sold to dLlVu.kuit.
187'2 moved the t'eiici; tii llic
-fenda'nt imniedialely iviiluiclit,
iaiutiff bn.usl't tvesi,a>s • \\M
„t recover, for the detiudiiut l,n,l
. by i)"»**^**'*'""' "" ' '• '^ '"■'""*■
ntiff was at most a niiro liana",
,kedl.yliis sale to .) . , ;ui;l ii.v.r
iff possession so as to cutitL him
Spass. (V.V. ^no,Mi,-....l'„
rtv and fifty years aiio tUo nwiid-s
: xLl-ectively of adjourn,, luts, 111
,-hwhom i.huntiH an.l ■.Ut,.,„l;mu
°ed and maintained at tUjMi; .■^|ual
ulirv li»e fc'ce between tliiiv l(,ts,
d 'resveetively heeu ni vnss.ssiuii,
,eriod of the land ui. to til. i,.ia..
commenced clearing on li.,,.,, l,„r
,t continuing m a .soutliuily duw
tl in a')out four chanis u tlie oai-
u front, wdien, to vn.teet til. Who
,.ected a fence ae.-.;«s 1>'« '-tt.W
:nce, leaving the pieee tu tW s„ath
ucession line oven until ahuiiumu,
.„, whenheimtui- ateiicoan„:t,e
^>e; but he ha>l always iii;mit;.m..U
nn the concession along tl.f iinM.t]
' themeansof acce^ to u^l...l^
burvey defen.lants .■lanucl tliat t!,(
,ce was erroneous and ena-o;u'lu4 ..l
tlXtthevwere entitled tu tli. iunt
' 1, n lvin« hetweei. the u.w li,i(
?t:ice:i?.:it,the.n.th.,ftii....
it by ulaiutitV across his lu : 1K1.1
Ltiff had ac.iuiie.l a titlo .y i«
he land up to the l„..nuUiy kn.(.
'such fence might not he oil til. tra.
3 ::Sved .m defend:uit. U 1..; ™^
the circumstances, hi. oi h 1.,, ii
fence along the conce.s.mluaumi
Pcnye^us-s,;._no_.un,oi.u,,.
itiff atul defendant were »«iki
eUhe town^>il| "f;;-^-. ,;
5terTw^'s?
LulaintiU'. Onthatstvii.tluii
r^^"'^'S::;:fi8'x.c'^-"
b7i'."ilots.f,,ra,l.ta
U70r.HKha.n.eenV>'t«l.:"l
2141
LIMITATION OF ACTIONS AND SUITS.
2142
tneeii the two lots ; and also another fence run- i
iiiii'' fi'oni the rear or westerly side of the lots to
iiluitance of about 2.5 or 30 rods, leaving a space
if al'iii't GOO yards in the centre niieiiclosed ; ;
Imtthe parties respectisely in occupation of the
lilts had always used the land on either sid-j of
the siil)l>osed line as belonging to them, up till
ilwiit the year 1S.")8, wlieii the father of tlie
iihint'll ""'^ ^''"^ then owner of the defendant's
lilt iii'iioured a survey to be made, and a fence to
111. erected on the division line then laiil mit,
ffliicli was paid for jointlj' by tliem, and which
iiiresponded with a line which had been run
^,„H,lazed by the same surveyor in IS.')!. T" j
•iliiiutitl', in 1873, tiled a liill seeliing to restrain
the fui'tlier cutting of timber, and for a declara-
tion that the atrip in (juestioii was his property :
_-Hehl, that there had been a sutliciunt oceu-
ratiiiu of the lands on either side of the line
iir such a length of time as bound tiie parties
uiuler the .Statute of Limitations, even if the
survey made and fence erected in lSr)8 were
not siitficicnt acts to compel the parties to abide
livthat line as the true boundary ; Blake, V.C,
kill" of opinion that they were. Spragge, t'.,
(lubitante as to the parti'js being bound under
tlie statute ; hut, being clear that the matter in
ilispiice was too insignificant to call for the in-
teri'creiice of this court by injuuction, he con-
curreil in dismissing the bill with costs. Held,
jlso that the statute of lS(iO, directing a survey
(.1 tiie township to be made, had not the etiect
ot creating any new right fir title, as between
uirties who had been in undisturbed possession
lor the statutable period of twenty years before
aitioii or suit brought. Benianl v. (lih-iuii, 21
Cliy. 195.
IG. CuHtiniiini.t Pu-ifU'Mo)}.
Iiiejf jtmentthe plaintilTs proved a paper title,
I mil (lefemlant, the heir-at-law of the pattsntce,
Icliimeil hy possession. It appeared that one R
lin the spring of 1834 took possession of an acre
|(i the same Tot, which he agrecil to jiurchase from
l^e M., through whom the plaintitt's claimed,
Ifflil built a house on it, in which he lived till
|1M4. The laud in dispute lay between his acre
linilthe river, and he was allowed to occupy and
Lnclose it hy the owner, whose title he always
Ijikuowled^ed, though not in writing. Jfe left iu
|hW, MuUns himse contiiuie<l vacant for two years,
ibtkiil in (jucstiou remaining enclosed as l)efore.
iTklwuse and acre were then taken by a tenant
iniliT B., and occupied for three years together
riihtbis land, ami after heing vacant for three
Kiuths two other tenants came in succession,
lad occupied the house until, June, 18.")."», holding
kuil in the same way as B. and the others
mhluiie, when defendant brought ejectment for
e house aud acre, and having recovered a ver-
feit, tiHik po8ses8i<m of the land in ipiestion as
tcU ;—Hehl, that the possession of B. and those
Bccwling him must bo treated as continuous,
btmtlistaiuling the breaks in the occupation,
W that a verdict was properly f<mnd for defen-
Lnt McLann et at. v. Moriihi), 11) (^. B.
f.
I In ejectment, defendant claimed by length of
ision hy herself aiul ancestor. 'I'lie evi-
Kice as to her possession being eontinmuis was
mtlictiiig, and for part of the time it appeared
khavebeen hy such acta as keeping the key of
the house, .and leaving upon the premises one or
two trilling articles, with an occasional return to
the i)lace. The whide case waj left to the jury
on the evidence, with a direction from the judge
that he could not say there had not been a keep-
ing of possession shewn by defendant. It also
ajipeared that, iu any event, the most the defen-
dant could recover would be a very inconsider-
able portion of the land in (piestion, and there
had been already two verdicts against her. The
court refused to protract the litigation by grant-
ing a new trial. L<irU v. Kilh), 17 ( '. 1' -'.JO.
In ejectment, where defendants claimed title
by possession, and the plaintiil' was found to
have been out of jiossession for twenty years, the
jury were directed, that to entitle defendants to
a verdict they must shew twenty years' con-
tinuous possession in themselves, and those under
whom they claimed :— Held, a misilirection ; for
an owner out of possession for twenty years may
be barred, though no one of the occupants may
have obtained a statutory title. A'fy/' v. Itn'ur-
jiorii/i (I SijHod of tin: JJkici.-ir of Tui-niitn, 33 Q.
B. 220.
In ejectment it appeared tint the jiatont
issueil iu 1823 to the plaintitt's mother, the
daughter of an U. E. loyalist. She died iu 184G,
and her husband in 18()-"). Neither of them ever
asserted any title, and the plaintitl' never heard
of the land in the family until about three j-ears
ago, when he was informed by a stranger that it
was his. The defendants produced the patent,
and two <leeds executeil by one F. in 1828 and
182!), f(U- the north and south hrdves of the lot,
respectively, with a series of conveyances tracing
title from F. to the defendants. There was evi-
dence that F. did the settlement duties in 1821
or 1822, and made the atlidavit of their per-
formance, and that ho lived on the lot for some
years, but it seemed doubtful whether in fact
possession was taken by any one until one W.
entered in 1838. There had, however, been un-
disputed possession from that time, and the taxes
hail been paid by the respective occupants. F.'s
daughter, who found the pat(^nt, proved that
some of F.'s papers had been destroyed by her
after his death, and some burned during his
lifetime, though she thought no deed was among
them. The learned judge was against the de-
feiulauts on the cpiestion of possession (fiu'ty
years possession being reipiired), but left thv3
case to the jury, saying that, umler the circum-
stances, it was competent for them to presume .a
conveyance from the patentee ; and they foui-d
for ilefendants : — Held, that there was some
evidence for the jury on both points, and tiie
court refused to interfere. Ileniarks as to the
doctrine of presumption in such eases, and its
application under the eircuinstancos of this
country. McLcud v. An-'<ttii <-t id., 37 Q. B. 443.
17. Entry or Claim.
One n., owning land, allowed a schoid house ti>
be built upon it in 1840, and a sidiool was kept
there until 18.51, when a new site was obtained,
and the trustees sold the old house. Hefore
doing 80, however, they sent for (i. to get his
consent ; .and he eanie to the house, .and said the
I purchaser .might live in it until the land was
cleared up around it. In ejectment against de-
fend.ant claiming under the purchaser :— Held,
'
■■•': <
2143
LIMITATION OF ACTIONS AND SUITS.
that tlisrc was evidence of an entry by (I. in
18r)l, from which time only imsscssion would
run ; and that the plaintifT, therefore, was not
barred. JJim/ir.ion v. Jfarrii, 30 Q. B. 3(iO.
Where one was in pos.sussion of the land,
claiming as assignee of a Imnd for a deed, made
by the owner ni fee, whose estate B. took 'ly
devise : — Held, that an entry by B. animo jiossi-
dendi, and enclosing the land with a field of his
own adjoining, caused the statute to cease to
, run as against B., and that the right of entry of
B. and those claiming under him dated from an
entry thereafter made by the defendants upon
B. 's possession so obtained. C'li'iiiriif.t v, Marllii
et <iL,-2l C. P. 012.
Ejectment for three acres and one acre, sepa-
rate parcels of lot 'Hi in the "ind concession of
Lochiel. On tiio l(;th of .June, I83!», McD.,
mother of the plaintitf, became owner of the
whole lot by conveyance from the grantee of the
crown. On the (itli of April, 1847, she conveyeil
the wliole lot to \V., her son, by a deed which
was t(. l)e given to him wlien ho should give
security for her support. This he diil by bond,
and the deed to him wag registered on the '20th
April, 1857. On the Kith April, 184!), however,
she conveyed to tlie plaintiff, another son, the
three acre parcel, by a deed registered on 2nd
October, 1840. On the 10th June, 18.")1, AV.
conveyeil the one acre parcel to plaintitl". On
the 17th ^lay, lS(i2, W. gave a mortgage on the
lot to plaintiff, registered 23rd September, 18l>2,
to secure advances made by plaintiff to pay off a
previous mortgage to defendant, which mortgage
to ])laintitf contained a reservation of four acres
already ma<le by deeds of conveyance to the party
of the third part (plaintiff) from McD. an<l \V.
This mortgage was discharged before this suit
was commenced. On the 28th December, 18()8,
W. conveyed the whole lot to defendant, without
any reservation of the three or one aero parcels.
W. lived on the lot and used it as owner from
the date of the conveyanco to him in 1847 till he
sold it in 18t)8. The plaintiff went to the United
States in 1 840, but came back yearly and stayed
on the lot, where his mother also lived with W.
In his evidence, W. said he alw.ays consi<lered
the four acres to be his brother's, and did iu)t
hold tlnftn adversely, but m.ade no difference in
working them :~Held, as to the three acre par-
cel, that the plaintiff was barre<l by the Statute
of liimitations, notwithstanding his annual visits
to the land. Held, also, Wilson, .1., diss., that
the reservation in the mortgage to the plaintiff
by the ilefend.ant, dated 17th May, 18(!2, was
not an acknowledgment of the plaintiff's title
at that time to the lands so reserved. Held,
also, as to the (ine acre conveyed to plaintiff by
W. on l((th Tune, IS.")!, that W. l)eing allowed
to remain in possession was a tenant at will,
which tenancy ended on the 10th June, 1852,
and the action having been oimimeneed on the
14th .luncj 1871, the plaintiff Wiva not barred.
Per Wilson, J., taking the words in eor.nccti'ui
with the tran.sactions between the jiartics, tho
one conveying and the other receiving the mort-
gaged land, the reservation in the mortgage of
the 17th May, 18(i2, was an exi)res8 and une([ui-
vocal declaration in writing that the plaintiff's
title to the four acres was valid an<l subsiating at
that time. iyilli,t,ii.i v. MiDomild, 33 Q. B. 423.
On the 0th of January, 1844, one J. W. took
possession uf the land in (piestiou under au in-
I denture of lease for four years, executed h^
I the owner, under ])owor of attorney, at tliu
! of i'l") a year. This instnnnent also conta
j the right to purch.aso for C2r)0, £50 to bu ]iai
the executi<in or tiie instrument, and the l,:;]
in four instidments of t'iiO each, on tint iii
January in each year, the first iiaynicnt t
j made on the 0th of .lannary, 1845 ; and it
chase carried (mt, in lieu of the rent rcsirv
I sum eipial to six p.!r cent, on tlic oriLrina!
I chase money shoul<l be paid, .1. W. ni.uli
j Krst payment of tiie t'.")0 at the time of execii
! this nistrument, an<l de])osited t'.")0 in tin' I
to meet the second ; but the person in wIkjii
legal estate was vested having died, it was
paid, an<l nothing more was done. J. \v
mained in possession until his deatli in ])
j when lie w.is succeeded by his son, to win,
I a])i)carcd that he had previously .'<(il(l, ainl
son conveyed to the defendants, who (.■iitc
j and had been in possession eve,- since: — II
i that H., the plaintiff, claiming under C.'s'
j was barred by the statute. Held, also,
'the execution of a deed in I8(i2. by ,1. \
\ heir-at-law to one I'., who in ISli!) ennvt
I to the plaintiff, did no iMt the dcfciiili
I title, as they were in jiession nutiniui
I with hiin. Cahnac \. ^n Jt, ami ('iiliii,t,-\ I
I 22 c. P. 551.
! In this case it appeareil that over twoiitv v
i ago a fence was nnitually erected liy I'llaii
I and defendants' f.-ither, who then iic'cu[iitd
} .S2, as a line fence alon-' tin; course of an
bl.ized line, though for what purpose such
' h.ad been run did not ajipear. 'I'lie fence i
! tinned to be used as a line fence until KSH
! when, in conseijuence of the survey made nii
\ the 24 Vict. c. ()4, and 25 Vict. c. '.•JS, tlic pi;
j tiff' claimed that the lino was incuriect, ami
i procuroil the surveyor who had made the
j vey to run the line. The surveyor ilivi
eipially the space in tho block containinL; ti
i two lots between the road monuments plai
j several years previously liy himself at tlic f|
angles of the side road allowances ; lint then
' no evidence to shew how ho ascertained the ]
j tion of such side roads in making that siii\ d
of .any search for the original iininmncnt,
j IS(!5 f>, after this new line had been nni,|
! plaintitf jiulled down a piece of the old foiicel
removed it to the new line, where \* reiiial
for two or throe days, until jmt bael. by tliiT
' fondants to tho original line, where it
remained ever since. Somble, that the
I tiff's entry in ISfioli, was sutheient to stepl
I running of the Statute of Limitations. I'n
; V. Thnrnhich rt <i/., 27 V. P. 201.
! In February, 1853, after the expiratlini
i lease by the plaintiffs to R. for ten ycai j
i continued in possession ; and in 18.54, (lefciil
j who had married H. 's daughter, eanie tn 1
' with K., under a verbal .agreement, as he;
' tod, whereby 1{. handed over the ]ios!iessi'|
', him ; but the evidence shewed that II. an
I wife still remained on the place until lii^ ■
I in 1800. After K.'s death, his widnw .iinlilj
dant continued to reside on the preniii-cs :
the defenil.int was frei|uently absent w»ik
for others. In 1802, while dcfeinlant «|
absent, and the widow alone in actual vi|
]iossession, S., the plaintiffs' agent, eiitiii'
the widow signed a written instrument. «
sed by S., confessing that she was mi th
ITS.
•2U1
21 4')
LIMITATION OF ACTIONS AND SUITS.
•2U6
our years- exocutca l.y (..,
,,cr of attorney, at th. rent
iustnuiient also cnut.mud
:forC-250,.£r,Otol.evanl„u
iuHtrnment anatl.ol.:j;m.e
of iloO each, on t\ie mh .t
,.,r the first i-ayiufi.t tn 1,0
-lanuavy, l84r.;aua.Mm,-.
,li,niof the rcntv^ncda
'r cent, on the .m.u>a v>u-
Ihe pvi.l, .). ^^:•>'aaoth.
OOatthetimentexocutm.;
lmtthevev«"","i;^'"""^''^;
^ea having aie.Utw^...^
,.r. vi'i'* (lone. .1 . \^ • !>:■
"^"lirWs'le^^thiulS.-,0;
'""l livL son, tnM\>..uit
t Vc .lefen.laut., vho .uU v.,
,s«essum eve.- sn.ee -.-IWa,
merelv on sulTerance of tlic ]»laintiffs, anil nnder- , w.iriU " tli'.; front three-(jiiart ;r.i'' to oiiv; K.
taking to give them i)0Hsie8.sion whenever tliey Supposing thit he hul lurtel with all hi.-i linil,
luigiit reijuire it. AfterwanU defendant re- , he niovetl otl' tlie lot ; it tiirneil out, howuver,
turned to the premises ; and in ]8()f> tlie plain- i tliat, owing to au error in running thy Hues, a
titi's l)rought ejectment : — Held, that tliu plain- j small surplus, not covered by the deeds, was
tiffs' entry and the acknowledgment signed by the j left between the p:irts s(dd ; and after a lapsi; of
widow in iiSli'J put an end to defendant's former , more than thirtj" years the ]plaintill' brought
ptjssussion, if any, so that the Statute of Limita- i ejectment to recover this jiortion : Held, that
tions would run oidy from that period ; and that i to enable the Statiite of Limit itions to run, it
\-a- ..liimini; under < . '^ >mii,
itirt, •■''""" =^1 1 eld also, tint
f\;^^"vhoi'^«''''»'-"V^"'
'rl ;;,■ '-^t the deleud;vut>
' • session notinvnvity
SUV
lie
was not necessary that K. should have taken
possession, imagining that he had bought all not
solii toT., and intending therefore to el:iim and
possess the part in (piestion ; but that it sliould
have been left to the jury to say whether the
plaintiir, having been in possession (pf the rents
and prolits, had not diseontiiuiud such possession,
and whether such iliseontijurinre was not )noro
than twenty years before action brought. Doe,
d. 'ftu/lor v. 'rruiiilfuot, !l i). B. ruW.
Possession f(dlows the couvtyance of the estate,
..vfd that over twenty Vfars
;:^Sib7 erected i.yv>;'-^
' fther, who then occuvk'.U
' .don" 'tlio course of |ni ..U
^•"^ of t e survey made ...uW
^'ffw '5Vict.c.■:Kthevl»■
*:;, iu^ %yas incorrect, an.l he
Une The surveyor .\>v>.\.l
. ., hVthebh.ckcontannugtk.
t'^"«,,"' v<nd monuments \\^^AA\
, shew now n<- , . ,., ,^ ^„vvlv. ur
Ss-vl(nehadbe...2l
^''T"tnk; that the Vl-H
'^^ w^asUhcientto.t;;i'tb
S?atSe of Li.mtat,ous. l"'«''
V 18:.;?, after the expu'ati. ">
^■"'^ .XvWu^eement,ask;>«
^'v^^^iti^.verti.i^-;;^
tliev therefore were not baneil. Cniutila Cum-
^m'lij V. Dvit'jlii.<, '27 C. r. ;{3'J.
About the year 18.S0 f)ne .Tames flray took
iHissession of lot 13 in the tirst concession of
K;\st Hawke.sbui'y, ami resided on the west half,
Ills sons, .Tohn, Amlrew, and Adam, living and
W'lrkiiig with him until alxnit 1847-48, when
Alain, under the expectatiini that the land
WduW be his, entered into possession of the
east half, with the permission of his father, who
-uliseijueiitly, in 1848, cluvised it to him by will,
ami afterwards s[ioke of him .as owner ; and i and such constructive possession will bo pre-
jltluuu'li the father up to the time of his ileath, I sume<l to continue until proof of actual entry by
in IS.")?, assisted Adam in working this piece, I a stranger, or of diseoutimiance by some dis-
tlu'iiiissessioii api)eared to be exclusively Adam's, | tinct act evincing intention to do so. Absence
vrlio was assessed as owner and paid the taxes, I from the province and the w.mt of actual oecii-
(to. After the father's death, Adam, and. those pation for more than twenty years l)y the owner,
daimin" under him, continued the possession is not a ilisciuitinuance of jio.ssession, within see.
Mitil the connneiicement of this suit. In 18.")7 17, of 4 Will. IV, c. 1. /.*(/(• d. (.'iif/iliirl.iDii v.
Mr.aillis, 2C. P. 124.
the fr.tlier maile a second will, devising this
frist half to his son .loliii, with an executory
.Itvise over, on failure of issue, to his son
Thmiuis. In 18(i'2 while Adam was so in posses-
similieohtained a conveyance with full covenants
i.ir title from .lohii. In 1874 .John died nnuiar-
riiil, and without issue ; and on the r)th May,
ISl.'i, Thomas brought ejectment against defeii-
I hnii claiming under Adam ; but neither at the
*^"'""^-' death, his widow an.
Semble, that under the evidence set <nit in the
report of this case, the plaintilt' was entitled to
a verdict; for either S., under whom she claimed,
was never in possession in respect to the p.atent
under which he claimed, and theiefove could not
be said to hav(! been dispossessed, in which ease
the statute never benau to run against him ; or, if
., . . - . i- , • 1 i ii I mpossession at all, it must have been by virtue of
tna iiiiriu term wasaiiv iiuestioii raised , as to the ', .1 ■.,;.■ ....jo i io.>> • i- /
"' t r 1 • 1 1 u 11 ;„ +1 I- .. I- f'his actual entry in 18.}() ami l8.{-_*, since which
efiect (if .lohn s deed:— Held, in the tdurt ol ,. , , •' , , ,. , , i, ,
, ,,, ii i ii 1 • i.iv 11 i times twenty years had not elapsed. Dm d,
tiimiiiou lleas, that tlie plaintin could not re- .., , , •„ ; i<> ,, d .>i/i
I cover, fur, without considering the eriect ot | ' ' •' ■■
1 Julia's deed, there was sutlicient evidence of' Ejectment. — The plaintill' in 1814, being
I piissc.ssiou in the defendants to give them the | charged with high treason, tied from the pro-
Itille under the Statute of Limitations, the . viiiee, leaving his family on the jirojierty in
1 jKissessiou of Adam having been un<ler the evi- | (juestion, and they afterwards joined him in the
iiltiice an exclusive possession as owner. On ' enemy's country : — Held, that the circumstances
hiHieal, the eU'ect of .Jtdin's deed liaving been ' of his leaving should have been considered by
Ijrgiieil and considered. Held, per Patterson the jury as conclusive of an intention to abandon
liiiil Muss, .1.1., that its eti'ect was to stop the j the possessi<m ; and that it couhl not be said that
Irunniiig of the statute, and create a fresh j leaving his family in possession was the same as
Istitutiiiy point, for after the deeil Adam's pos- i remaining himself ; that the diseontinuance eoin-
Ittssiciu hecanie rightful ; so the defendants had , inenced wdieii they left ; and that, being abroad
llKit aei[uired the title by posse.ssion as against : then, the iilaintili' was entitled to the benefit of
iTliiiinas, and that therefore the judgment should ; the disability, linllcr <l nl. v. Dimnlii^nii, Vl
reversed. Per Burton, .!., and Harrison, ' (J. B. 'liw.
til his .Irtil
terll.'s<leaui,.-j;;^,,;^,,,i2s:1
e-l t" ''T iientlv absent ^sM
"L was fren"e.>tl> ^^^^,
the ^^^^,^Za, cntevea
«'f :\;^'^£ shewasoutlulal
ionfessiug in.iv
IC..]., that no such cH'eet should be given to the
Tdeod ; that defendants had acijuired the title
|liiidei' tliu statute ; and that the judgment
ihoulil be artirined. Per Harrison, C.J., that
Ihe ijiiestidu not having been raised in thet'ourt
iliiw sill mid not lie given etlect to in appeal.
fer Moss, .1., the CVuirt should not refuse to
Btertain the point, for it was not one which
bnlil be .affected by further evidence. ('/"((// v.
tdM^'t ol., 1 App. 1!. 112.
iSeeZ)y, d. Shi-iiiHinl y. liniibij, 10 Q.B. ;H0,
jliS; Fmhf v. Emtrson, ,") Cliy. 13-"i, p. 2133.
18. Dkmntiiiuance and Dl-tposnesnivn,
[Tlie iilaiutiff, being the patentee of a 200 acre
J, sulil to one T. the I'ear 50 acres, aiul aftur-
13,-)
The right to land is not barred by forty years
want of possessitui unless some other person has
also been in possession for that time. Kitcliiim
v. Mhihtiin it III., 14 (^ B. !»!».
Tn this ease, where the plaintill had been out
of possession more than forty years and had
asserted no right, but declare<l that he owned
11(1 laud in the township, and the deed under
which he claimed, had a suspiciinis appear-
ance, the jury having found in his favour, a new
trial was granted. //(.
Held, that upon the evidence in this ciwe, the
jury were warranted in tinding that there had
been no dispossession by ('., one of two devisees
of the land in (piestion, more than twenty years
before this action, and theiefore that the plain-
tifl's claiming under F., the other devisee, were
m
2147
LIMITATTOX OF ACTIONS AND SUITS.
not l>arrcil. Iniinlls ct it.r. v. Arnold it a/., 14
It was piMVL'il that the plaintiff's father, the
son of thu iiiiteuteu, had jiiit a brother of the
plaintitf on the lot in iS.'t.") or 183(!, bnt liow long
he rL'niain(;il wan not sliewn ; and that in 1837
or 18;i.S, the plaintiff told one H. that M., nuder
whom defendants claimed, owned this lot ; and
the same witness swore that the plaintitt had
worked on tlie land for one of tlie <lefendants.
There was no proof of ])ossession for twenty years.
I'er Hnrns, .)., discontiinianee may l)e of a uoii-
struetivc as well as of an actual possession, iind
in this ease tliere was evidence to go to the jury
to find whetiier the ])laintiff'ha(l not discontinued
the constructive possession wliich he aecjuired by
descent on tlie dcatli of the patentee. I'rhiijlc
V. A I Inn (■/ III., 18 Q. H. TiT.").
To bar the plaintiff in ejectment under the
Statute of Limitations, lie must not only have
been out of possession for twenty years, but there
must lia\e been actual possession by another.
Lloi/'l V. Ill Hill' rmii, 2") C. i'. 253.
Dm' A. Aiiitii'iii y. Mil, tin,)
19. A i'dIiIiuii'i' III/ PriiriH.-i.
A judgment in ejectment recovered liy ('.
against 11. within twenty years, bnt npoii which
15. had never been disposses.sed, does not save B.
from lieing barred by the statute. Dm' d. Aiix-
iniiii V. Minllmnir, '.i Q. 1>. 4'i3. See also Doc d.
J'ciri/ V. JliiiiliiMjii, 3 Q. B. 48t).
The bringing of an aetitm, not the i-ecovery of
possession, stays the operation of the statute ;
therefore, where po.ssession was taken under a
liab. fae. poss. , though after ten years from the
recovery of judguieiit ; -Held, that the posses-
sion so taken related to the date of bringing the
action, and that the intervening tun years' pos-
session would not enure to the lieiielit of tlie
tenant, so as to as.^i.-it him in claiming title under
the statute. Tiirlii/ v. U'illiaiiixoii, 1,") C. 1'. 538.
The tiling of a i)etiti(m under the act for (piiet-
ing titles is not .such a proceeding as will save
the I'ights of a party contestant otherwise barred
b}' tlie statute. Liiiinj v. Anri/, 14 C'hy. 33.
Sec also, 11. 3 p. 215!).
20. Ackmirhnliiiiivnt of Tilk.
\ verbid acknowledgment of title made during
the twenty vears will not save the statute. Dm-
d. I'l'i-rn \' III mil, -SI, II, 3 Q. B. 48C.
An ackiiowleilgmeiit in writingafter the twenty
years will not revive a title which the twenty
years" possession had extiugiiished. /)iiii\. J'lrri/
V. Jlniili'i-Moii, 3 i). B. 4Sii. Jfi-Doiiiili/ v. .1//-
liifux/i, 8 (). B. ,388 ; Mclntijir v. Tlit Ciiniula
('iiiiijiiiiii/, 18 Chy. 3(i7.
M'here A. has been twenty years in possession,
a conveyance by H. to A. within the twenty
years of part of the lot in dispute would not save
the statute, tliis being no written acknowledg-
ment on the part of A. of B. 's title ; and the fact
of A.'s paying the taxes by B.'s direction is no
liar to the statute. /><"■ d. J'rrri/ v. Jli'iiiliriion,
3 Q. B. 481).
A notice to rjuit from C. to B. within tlie
twenty years does not save C from being )>arred
by the statute.
Q. B. 423.
Tlie plaintiffs claimed title through 1!., oi
the children and devi.sees of ('. Tjie d, fei
claimed through H. and the other devisors i
and by length of jiossession. < ', dic-d ji,
having by his will made in 1841 dcvisitl this
to his children in fee. R. died in IS')|. _\\,
she nor any one on her behalf liml any in
sioii since 1848. It was jiroved that in I si
F. , who was then on the lot, and tliidii-h \,
defendant claimed, told one M. that in Imd
share of the lot, and was to pay the icnt ti
the solicitor for the plaintiff's in a ('liainriv
brought by V., and by H. and other iilaiiitill
jiartition of C's property, on account ni
costs of that suit ; and that he aiterwaids
the eldest son of It. in 18.")(), ^^•ll(^ went t(i
for rent, that he kept it liac'-; to pay tliu (
It also appeared that F. had paid iiioniv ;i
1857 to the town agent of (', in tliat, su
account of the costs. It was siwcuii, Ikiw,
that ¥'. occupied under a brotlici- ot' j;., \^
right he hail purcluvsed, not uiuki' It., un
lease was proved from 1!., iiorany autlimitv
her for the jiayment to (_'. : -llelil, Wilshi
diss., not sutlicient evidence of pavnientdf
to B. to take the case out of the statute. Ili
(■t III. v. .Sinitli, 35 Q. V>. I(i5.
The defendant in a bond to F. dateil ii, ]
recited that he (defendaiitl had li(uic;lit ii
estate of all the owners of this lot cxtiiit
estate of the family of F., and of sikIi dth,
the claimants as were under disaliility, w
class would include the plaintiils, uliidi ,1,
dant was to get in ; and an agi'ecnitiit in wri
was made between F. and another ainl tlie
feiidaiit, in 1855, by which defendant :ii;ii.e
buy in all the interest of the children oitlu
L'. in this hit : — Held, not an aekiiowledi;!
under the statute, not being given to tlie [i
tiff's or their agent. //;.
All acknowledgment to a paitv's tr
is sutKcient to take a case out of the st;
Milii/i/ri' V. Till' Ciuiiiihi Coiiijnlini, IS
3(i7.
Where a mo>'tgagor wrote to tlie iiim
in .answer to a demand for payiiieiit,
comply with your reciuest as to the re|
of .S.5()0 I borrowed from youso iii.uiy yea
anil until 1 pay the money I will eveeiit
thing you wish me to do for its senility
there was evidence shewing that tlie only
ever loaned to the mortgagor by tlie im
was the sum so advanced on tlie iiioit
was Hehl, sutlicient to take the e:ise eiit
statute, liitriri'-k- v. linnrWk, 21 Cliy, .'ill
See Williinii^ v. M r Dot, nhl, •?i^^ {}.]>,. \1
2143; L'linniln ('0111/111111/ v. Dniiijln
339, p. 2145.
I 21. Cifi-x Uililif fill- l.hiiiliiif/ 'I'ilii'.li'
I ....
^\ here the petitioner, uinler the (,liii
1 Titles Act, seeks to establish title by [kwc!
the possession under which a title is da
must be uninterrupted possessieu, a.s nwii
j the land, and should be in aeeonlaiiie ivitl
i title set up. 7iV Jivll, 3 Cli)-. Cbiunli. 1'
i Taylor, liifiTcc.
I't;
Hicl title tlmmjiliU.. /me „t
viseesot <'• Hi^^" il''ti'iiil;iut
an.\tbeother.l.vi.o.sul('.
rule in 1S41 cU'Vim.I tlnsluml
.e U <Uiiil ill 1S'>I. Nfitliir
,, "lu'V l.elialf h;i.l iiny \i"-<^os.
„n tlie lot, ami tUvou-li wlium
aul was to \>ay tlu; ivut to (
evlamtitrsiiia*U.iu;.n;yHmt
^ . ivnd tliat lio altcnvavAs M
p in IS">'». "■!'" "^"^ '" """
kcl.t it l.a.''--- to iniy th.cn*
fulgent of C. hi that smt,.u
costs It -.va« «NVon;, i"Nv^'v,:r.
i.-w.m1 not \uuki'rv..:»iulii'
lont ^^"^"-""-Vflu-st'ituto i,'"""
le case (lut ot tlie hi.uvuc.
35 Q. 15. 1(H>.
._ • . 1,mi.l to F. ilatcil in ISVi,
:f;aJ^Xi^-u.ou,ht.j
f'^""^^' 'l^ul; • -fcal.ilitv. «W
^^' :;• •£n:wa:;ti^™n
2149
LIMITATION OF ACTIONS AND SUITS.
2150
""Hell not ail a.-kuowWagme^
^^.:: :.t\?t,:: a
movt-agor wrote to tlio i«"vtS»g
Tkmau.l for vayim'iit, 1 ^^
■" , ,.^t -IS to tUo rq>:iyme
i^oweafron.y.m-^>'^^-,
l";y *^"trri u'lnunty," 2
.•l.lelice *'>';",„, ,„. the ..."Vt^s
*" *'"av. S >u the iuort,a,e
utlieieuttotake I'ccs
,.,.iv V. .1''
A jietitioiier, under the Act for Quieting
Titles, elainiing by lengtli of jiossession, must
nrove iiossessioii fur the renuisite length of time
by clear anil jidsitive evidenee, which should
lie of more than one indeiieiiilent witness.
Caiu'rli!//, S \.. .1. X. S. SO.— t'hy.
iiiii^ V
./),„mw,;»V-^^-?''
I"
la <'oiiil>""tl
IhiiKj
;,r.s 2; I.
Il.icX I'll'
/,,• th' (jiihr,ii:i
Dctitiono
V, uiioer
kiou
t,:^^ which a title-
Till'
the IJiii^
p. lit Bill, 3 ^.i'>'
l/'cirt'.
inviia
tt, :w
ihuioi! Ml'
,'biiiiil».
2-2. Olhir Ciixr.t.
A. the owner of land agrees to sell to B. B.
coca into |iosscssion. Ji. fails in making his pay-
uitiits. A. then conveys the lan<l to (_'. iu IVs
iircseiice and apparently with the consent of H.,
vjlid says that lie will (it iiiir<: leave tlie i)laee. 15.
uevertheless contimies uninterruptedly in pos-
gessiiiii for more than twenty years, paying C.
U(i rent anil making no written or other aekiiow-
leilgmeiit of C.'s title :— Held, that H.'s twenty
viais' possession under these circumstances gives
iiim the legal title. Dor d. A uxnian it ill. v. M'ln-
i1.„-«s;M.>. B.412.S.
Qiwre, if B., in undisturbed possessitm for
twentv yenrs, voluntarily restores possession to
('., c;ui H. turn (.'. out again by reverting to his
title miller the act. ,
Seml)le, that a plaintiff in ejectment relying
in the opening of his ease upon a prima facie
titlo hy possession, and Ijcing met l)y proof on
tlie jart of the defendant of a prior possession,
camiot repel such proof l)y attempting to shewthe
iKissesshin of defendant that of a tenant to him
Ithe iilaintitl') as landlord. He should go into
liis fiise fully in the first instance. l!o])iiisoii,
(' J , iliss. Duv d. Oshunw v. McDotniaU it <(/.,
(it). B. i;ir>.
A ilefeiice under the statute against a clear
title is not one to be favoured, especially in cases
j iietweeii relations ; and where the jury have
kiieil against such defence in support of the
1 tmiesty of the ease, and there lias lieeii no mis-
Jiwetiim, the defendant must show very strong
miunils til entitle him to a new trial on the evi-
Udicc. JlniiiiiiiKjiriii/ y. Jhiiniihiiiiriii/, II (). ]>,
\%.
Tlic right to land is not barred by forty years'
liaiitot possession, unless some other pei'son has
I jkfi lieeii in pos.session for that time. Kilrliinii
\^.Mhihim,t(il., 14 y. B. 9!).
Ill this ca.se, where the plaintifT had been out of
jssessiim more than fortyyears, and had asserted
ltd right, hut declared tliat he owned no land in
the tnwiiship, and tiie deed under which he
Iclaimcil luul a suspicious aitpearance, the jury
Ikving fiiniiil in his favour, a new trial was
Ipanti'il. II).
Where a tenant for life and the reversioner
lint'ee hull conveyed property in fee simple by
l» ileeil of bargain and sale to one person, it
Iwklil, that the life estate did not merge in the
|i(vtrsiiiii, ami tJiat the Statute of I.iniitations
IWimt run against the remainder man till the
1 iif the tenant for life. 'Slmlilvu v. iSiiiitfi,
Mil, that twenty years' user will legitimate
tcjsemcut afleeting pri\ate property, but not
inuisanee, Jinjina v. Jinicifir ef al, 8 C. P.
I flirty ycar.s are allowed for the bringing of
&11S for laud or rent in case of disabilities.
The term of forty years, however, is not a uni-
vei'sal bar. Twenty years forms tlie regular
bar. But the twenty years run only from the
time the tirst riglit acjrued. J'cln- it al, v.
MaiUiMu; 8 C. 1'. X\\.
\. being a widow, and having a son, .J. IT.,
marries IJ. in or about 17!t(!. In KSO.'l, a ]>atent
of the land in ipU'Stion issues to A. At the
time of marriage, and for a year afterwards,
they lived on the lot. They then left it, having
sold to one S. It., \\lio took jiossession, and he
or those claiming under iiim remained in posses-
sion till the bringing of this action. In .June,
l.Sl'i, A. anil B. jointly conveyed (with no cer-
titicate of examination nf the luairied wom.an) to
S. R. A. died about 1840, ami H. in 184(1 or 7.
T. B., the son, died bernivtliis action, having in
October, 1843, execute 1 a power of attorney to
,f. ^\'., to convey the liiid in iiuestion, to bring
ejectment, and to iliMVnd actions therefor, &c.
Under this power ,T. \V., as attorney for T. U..
conveyed to M., one of the plaintill's. A. had
issue liy her marriage with B. : Held, that more
than forty yeais having elapsed since the time of
taking possession liy S. 11. , (taking the patent or
receipt as the date) the ai'tion must fail. Mijirx
itiil. v. Vrnlij, <) V. P. oii;.
A rector is not Inrred by adverse possession
of the glebe land for twenty years, unless he haa
been incumbent during the whole of that time.
7/(7/ v. MfK'niiini,, Ki Q. B. •JKi.
Wiiero an .action of ejectment brought under
the (dd practice in 1848, had been stayed owing
to an order for security for costs, and the demise
had expired niiu! years since, the court refused
an amendment by enlarging the term, which
would have deiirived the defendant of a title
aciiuirod under the Statute of Liuiitations. Doi'
d. Ihi;l V. BniiKtt H III., 01 (I B. 405.
Kjectment- The land was granted to one M.
Mel)., who, with her husband, exccuteda deed to
one M., in 1831, Imt her name was not mentioned
in it as a granting party, and there ""..-i no certifi-
cate of examination endorsed. The plaiiitifr claim-
ed title through this deed, liy a conveyance to him
in 18(iO, from the heir-at-law of one ,1, P., and he
hehl also a deed from the heirat-law of the
patentee, executed in .lune, IStil. iJefendanta
cl.aimed through one AV., who in 184.") purchased
under an execution against .1. 1!., and by pos-
session. It was proved that in 1834, .1. P. went
upon the land, and lived there till his death in
1843. His willow and family soon afterwards
went to Scotland, leaving one K. in charge, who
in 184.") acceiited a lease for five years from W.,
and at the expiration of the term was ejected by
W. 's vendee, under wliom defendants came in
and hehl until September, IStil. whenthis a. tion
was brought. Tlie husband of the patentee i 'ed
in May, 1841, and the jury found that she had
then knowledge of someone being in possessson.
She lived until 18") 1 : — Held, that defendauta
were entitled under the .Statute of Limitations,
for the conveyance executed by her passed noth-
ing, and twenty years had elapsed since her hiia-
band's death, during winch possession had been
held by iiarties with whom the plaintiff had
no privity. MnUoch v. Dcriran it iiL, '22 Q.
B. .')4.
\Vhen a party, by deed, has granted a piece of
land to another, though he may retain posaesaion
!;ti
->ir.l
LHHTATION OF ACTIONS AND SUITS.
of part of the luiul granted, ami though the
grantee may siipjioMe his grant does not cover
Hueh jiart, yet il tlie ileeil doi^s actually cover the
land, the grantee is entitled to it, if he lusserts
liis right within twenty yeai's from the date of
the grant. .Shili.-t w Tai/'lur, 14 ('. L". iW.
Thoughaman has heen in jiossession for twenty
years oi land granted to his wife for life, he does
not thcrcliy aciiuiie an alisolnte title, for he is
merely seised with her, liy operation of law, of
her estate therein, and any grant made l)y him
will only jiass an estate for his own life, if liis
iri/(_' .i/wiilil fo Uniij lire, .N'oAf/f v. Fox, 15 0. 1'.
yfio.
In ejectment, it aiipeared that ]i., the paten-
tee, agreed so suU the land, in li)'A~, to .A. R.,
giving him a hond for a deed. A. It. took pos-
session, anil dieil on the laiiil in IS.'i!). His
widow then went to Scotland, and in 1S40 his
brother, I'. 1!., came out and took possession,
with the knowledge of H., to wliom he paid tlie
balance of tlie purchase money. In l!S-12, his
mother, with licr grandchild, the daughter of A.
Ik., came outand lived with I'.lt. until IcS.'tO, when
lie S(jld out to his mother, who remained until
her death in lsr)4, ami devised it to her daugh-
ter, who died, leaving the defendant, her hus-
liand, in ixissessioii. The plaintitl's' claimed
under the heir of the patentee, and under the
heirs of A. K. : — Held, that they were barred Ijy
possession ; for as to the patentee, he had lieeii
out of possession since 1810, when 1'. It. entered
with his knowledge ; and as to the heirsof A. 1{.,
he, A. 1'., had never the legal estate, and there
was no proof that 1'. 11. had entered under them
or recognized their right. There was some evi-
dence of all oUer by defendant to purchase
plaintitl's' claim ; but. Held, that this could
avail only if defendant had no title, not to de-
feat a good title. Jlrd'rcjor ct til. v. Laliuah,
30 1^. a. I'oo.
A deed of the land in (juestion from the tes-
tator, under whom the plaiiititis claimed, to one
v., was produced by deteiidant unregistered, and
under wliich the grantee had never taken posses-
sion, tlie testator having retained possession till
his death, and his wiilow ami devisee for life
having continued in possession under the will,
which she registered, in all a period of twenty-
seven years : — llehb that the title of the plain-
titl's, whuclaimeil under the deceased, in I'emaiii-
der, under the will, was not defeated by the deed
to P., for whatever estate was conferred by it,
was lost by the twenty-seven years adverse
uosscssioii. llitiitiltiiu it III. V. Lii/litlioili/, 21
C. 1'. VM.
To bar a plaintiU' in ejectment under the Stat-
ute of Limitations, he must not only have been
out of possession for twenty years, but there
must have been actual possession Ijy another.
Lloyd V. JItiiilif.suii, '25 L'. P. 253.
In ejeetnient it appeared that W. '\V., Jr.,
owning the land in <iUu.itioii, left it in 1852 in
Ijossession of his father, the defendant ; and
that in 1859, he, in the presence and with tlie
consent and apprt)val of his father, mortgaged it
to II., through whom the plaiutitJ' claimed : —
Held, that defendant could not, as against the
plaintitl', set up any title founded on his posses-
sion before the execution of the mortgage. lioyn
V. Wood ei ((/., 3'J y. iJ. 4'J5.
P. being in possession of land of which Jig
not the owner, made a verlial gift of tin- Inn
(!., but afterwards ejected him. ( '. tlii'ij ,i),t,^j
a conveyance from the owner. Morctliau twt
years had elapsed from the time that tlu; sta
began to run in favour of P. against tlic
owner: — Held, that (.'.'s possession iliil imt
torrujit ill G.'s favour the running ol tin; stati
and that the owner being barred, ('., his ^rim,
was barred also. MrJiili/n: v. T/h- Vnnihln (,
jMinij, 18 Cliy. 3t)7.
Where a plaintitl' lilcs a bill prayiiii; nlj,.,
the ground of a legal title in himself, nii f.\\i\
lapse of time than would be a bar at law i
obstacle to relief in eipiity. Cdiiu'i,- v. J/,-/'
■ion, 18 Chy. GOT.
The statute .S2 Vict. c. 3(i, s. I.'jo, liinitiii"
time for bringing suits for setting a^iile a sak
ta.xcs, applies only where an actual, tlimiyh ir
ular, sale of lands has been eli'cctcil ' li,
.ilml v. J'lirU, 21 Chy. 22!).
The public cannot release their rights ;
there is no extinctive presumption m- inesc
tioii. Therefore where an original allow aiict
road had been taken possession of ainl (ireui
by the plaintitl", and those under wlidia
claimed, for a perioil of forty years ami
wards: — Hehl, that such lengtiieucd [klssis;
atl'orded no ground for opposing tlie ai.timi '■!
municipality in resuming possession oi the r
for the purpose of opening up the same. \
V. aiovii; 24 Chy. 210.
II. Pr.Kso.NAL Actions.
1. When the Staliilf hi'ijhi.i to linn.
In ease for fraudulent niisrepresciitatiim,
statute begins to run from the time nt misni
sentation, not from its discovery liy the iij;
tit}', nor from the time that daimigo ai
JJkkson V. JavvM, 5 O. 8. ()94.
A. gave B. & C. a note signed liy h
which they discounted. When it mature
C'. delivered to the holder, by way df r,ii
a note purporting to be ma<le by A., lik
other note, and which such holder (ui that
accepted, and he delivered up the old ndt
being afterwards alleged that the renewal
not signed by A., but by another iiersmi
same name unknown to the holder: -Helil,
A. could not take advaiit;ige of this fraiiil
his liability in respect of the note still exi.-
eijuity ; and that the holder cnuM sue i
six years fr<mi the discovery of the fraud. /
V. Frvi'.mnn, 13 Chy. 4()5.
An action against a commissioner nf
aft'airs for seizing and selling tiiiiher cut m
dian lands, must be Ifrought within six iii"
from the seizure, not from the sale. ./j.
liain, 12 Q. B. 550.
In Ajiril, 184(!, certain marcs, the iiro[iert
the plaintitl's, strayed to defemiant's funii,
advertised them, but no owner appuaiv
the defendant began to use them almut
afterwards. In July, 184(i, the same maivs,
ilig supposed to be on the plaintiff's [KV-t
were sold by the sheriff', under an exwu
against the plaintitl', to one S., wlui never
taiued posaesaiou of them, but liuiiriiig, k
ITS.
•Jir.2
i,m<.nan.l'>f wlu|-\i li. vy;is
,m tlie time Uiut \\n- stixtiite
vour "f V. agaiust tU.. true
(^j/sj j)(issessii>ii <lul nut lu-
',• the r"""*"" "* ♦•I"- ^'•"t"*'^ ■•
21.33
vli.
V r,U.s a liill \'rayu>K wli,-., cu
,al title in hiniselt, m >h..rtur
'wouM lie a ' ■
11 etiuity
h-M-
t'liiii"
\.\v iM im
155, liinitm;^ llie
U- il .sillc fill-
■lim'Si-
^'ict. e. 3(),
,^jits fur setting asi'U-
y^vhel•eauaet^.al.llmu.
:is lias l.eeu etkctea.
L Oliy. ^^■
mu.t release tUeir nghts ; ;uM
"five i.rcsuini'ti"" '"• V^'^'"]'-
'\. re an original aU,,.a>ax..,,r
• "uul those uuaer ^vhnul he
KsuJu lengtheue,! ,,- — -
2 f,.rori."si..gthea.U.m
: of ..i.eui"« up the same,
hy. 2l»-
"I'-
siiiiil
t tlio]
.V.i.-M
. Personal Atrioss.
,„ tJw StutiiU- ln"jlii'< t<J l'>n>-
frauaulent mlsveprcsentatimi. tiiej
to rmi
from the time nt msv,\<
from its tUseover
liy the yh
the
IcrM, 5
time that aani;igo aa'
O. «.
()'J4.
& C. a note signe
il llY hiuisi'lfj
iiuteiV
the hohler, l.y w^V
to be ma<
Sseov
|to
rting
ho deliver
•(Is allege-
When it matur
fii
lit riMlcWM
I that the nutwal w
r, Lut-by. another V--;'
Lkuown to
the hol'ler
t tu
-lleU.tlu
[take advanta:
f this \\"m\
In resye
eto
f the note stih exi^tol
couhl sue witl
f the fvaiul. /'■'
that the hohler^^^
_x the (liseovery
[l3 Chy. 4()5.
against a eonunissi-
P 1 ,...11 licf till
bizuig
kiust b
uul selling tiiuhor
'ifrought vvitlnn^i^"
LTMITATIOX OF ACTIONS AND SUIT8.
IMI
year 1852, tlioy had foaled and were in the du-
fiiiiliUit's |iosseHsioii, made a written demanil on
the ik't'eiidant for tliem and their progeny in
Septiiiiher of that year, A year afterwanls !^.
iwiile over liis interest to tlie iilaintitt' as a gift, \jii-nlif
yjitlidut eonsideratioii or any delivery taking
iilace. In l!^55, the ipiaintitf made a demand on
tK'ili'feiidant for the mares and their colts, wliicli
«iV.H refused, i'leiis, not guilty, not possesseil,
jnil Statute of Limitations: Held, that the
eiiiiveisioii took jilaiH! in 1847, and that the ai'tion
((■■t< li:irred l>y the statute. Snilt v. McAI/tiiir,
v. :«)•_'.
To take a case out of the statute, slight evi-
denee is siilfieieiit, but tlie rceoyiiitioii of liiiliility
must be uiienuivoeal, or the |)romise mii.st be
iineoiiditional, or the i.niiditioii |n.rformed. Cnr-
v. Vidiili rl'iji, v.. '!'. :\ X'JLt.
(e bv A., like thi
'hiehBuehhohler..iith:it.a._
ed ui) the .ihl ii"t>. 11
„f lu.lil
fUt iin I
not fioni
the salu
rioO.
|l84(), certain
in
marcs, the vrovfrtyj
stray
Iheiu,
\ to defeiuiaiit
Wt no owner a,.i.uai
it began to us"
'. ?..!., lS4(i.
them
■A,
aliimt :i :
I ocu.vo V, tl,^, same iiwivs
d to
l»y
the sheri
ft', under
Vhiiutiff, to one ^..
1 . t n...,.i but UI
.ui e^eoili^
111 I never
bsaiou
of theiU;
but hcariuij,
I. I'l I
Where an action for seduction is brought by
tliL liriitlier of the girl, not by the parents, the
statutt: of NN'ill. \\. eh. 8, does not apply, and
i,riPiif of service must be given. The statute of
limiUtioiis begins to run from the time of sediic-
tiiiii nut from tlie birth of tlie child. Mi'Kni/
^,lU,rl!i, 18 Q. H. -.'ol.
Tlie plaintitl's attorney sueil in 1S70 for bills
(ij losts in suits brought for the defendant, in
fliieli suits judgment was entered, respectively,
ISdO ami IS()I, and e.Kceutions which were
lisueil ill 18(!;i had lieeii renewed yearly, at de-
itiiiliiid's re(|iiest, until 1870: — Held, that tlie
iihintitls could not recover for any costs incurred
Uiiie and in the entry of the judgments ; for
lliev were entitled on the recovery of judgment
Ui sue for cheir bill, and were barred by the
iUtute, M-liich then began to run. Harris r.
(Juiiie, L. 1>. -IQ. li- '>">7, distinguished. Lizarx
,i„/.v. />!(/'•.«,/(, .3-2Q. B. 237.
Where a cause of action accrues in the life-
tinu' iif the debtor, the statute begins to run
tim^t his estate notwithstanding there is no
(Sciiitor or administrator ; but where the cause
(,i :i.ti';'. ihiea not accrue until after his (1 'atli,
lidi tlie time docs not liegin to run until tliere
iiaiieisoiial repn oontative who can sue and be
Bttl. Gniii/ V. JlrJhmitlil, 8 Chy. 4(i8.
On a purchase of land the vendee gave liis note
Kvitile ih a year with interest, for part of the
Mrclase money. The vendor <lied before the
lote hecaiiie due, and administration was not
tidi out for eleven years . 1 n a suit coninieneed
jiTt.ir afterwards by the administrators, it was
ikU that, as the cause of action did not arise
Uil there was some person to sue, interest
m recdverahle for the whole period from the
ikiif the note. S/i^rciiniiii \. Iluddir, 15 Chy.
'2. AdiMirleili/iiii^iif in liar or Payim-nt.
\\nr jn-imm-lul MatttU' 13 A- U Vict. c. 61, s. 1,
\'..S. v. ('. c. -W.) inacls,niiiiiiiiiofhirlltiii(i-^, thai
\ll^lllr^i(l|l■^(lll sim/ilr colli met (i>/ the iialiirr nun-
«"/ hi till' jinn nihil' of llir Art) no m-kiioi''Uil(j-
nr iifiiuiUi- III/ irorif.^ niihj sliiill In- ihi-niiil
tp\,nl iriilmrint' II III ir Hint continiiiiiil coiilriicl,
ftnh mill i-nw mil of tin' Stntiili of Liin'il(ilhiii.i,
fliiili-lirirr mill jiaiiij of I lie hi'iii'Jil Ihi'riof, iiiil.i'xn
lA wliimii'li'ilijiiieiil or jiroiiiUi' .i/inll lit iinuli' or
ptmilhiiuriii .wxic irritiinj, xlijiied liy the jiarti/
tkrkifijnilili' thiriliy. ]
I In ail actimi hy an adniiiiistrator, a replication
1* promise to the intestate, in answer to a plea
I tilt statute, is not supporteil by proof of a
mise to the administrator. Wrhjht v. Mvr-
"•.GO. 8. 107.
Where in consideration of the sale of a vessel
to A., li. joined with liliii in an agreement 'to
deliver lumber :- -Held, that this was a joint
contract, although \\. was only a surety, and
that it was not tlierefore iieeess.ary tliat tlie con-
sideration slionid aii]»!aron the face of the agree-
ment ; and that tlie pnniiise of A. was sutlicicnt
to take the ease out of the statute as against li.
Tlioin/ixon I't al. v. Cuiiiiiiiinix, M. T. 4 Vict.
An admission by an executor that a note,
barred by the statiiti' is due, coupleii Mith a
statement tli.it it could not lie paid for want of
assets, and tliat if there were assets it should be
paid, is a coinlitiond promise inen.'ly, and not
SUlHcicnt. Lniiiiniliiii V. DnrU, 1 (,)."l{. 171).
An admission by an executor of a debt due by
his testator is not sutticieiit in an action ag;iin.st
tlie executor \i ithmit an express promise on his
part to pay tlie debt ailmitted ; l)iit an account
stated by an executor of a debt due by his testa-
tor, wliicli had never before such aicounting
been ascertained or determiiieil, is siillirient to
charge the executor as a subst.iMtive dclit, with-
out any i>roiiii.se to pav. il'iiU.iiiK v. W'n.^lihiirii,
2 (,). H. 2!tl.
A statement of a party upon being presented
with an account, "that he was satisfied the
amount had been ^laid to tlie plaiiititl's agent,
that the agent Imd lieeii in the iial>it of having
large transactions with him, aii'l was more fre-
(piently in delit tiian otherwise, but that he
could not see how the matter stood, as he had
not his books to refer to" : -Held, not sutlicient.
McCoriiiiii-k- v. lii'i-ji/, 1 (,». IS. 3S8.
A statement by a defendant that he did not
think he owed the nioiiey, and tliat if he did,
the statute would prevent the recovery ; but
that he would give tlie jilaintill' ??.")() rather than
have any trouble about it, is not sutHcieut.
S/iiiliriini v. I'lirhr, 3(^». li. (iO.
'J'lie ])laintitl', as administrator, sues the defen-
dant upon four notes made in 17!M), averring ad-
ministration lie bonis iion in 1847, and laying
promises to himself as aifministrator. The de-
fendant pleads that he did not iiroinise in man-
ner and form, &c. Upon the trial it was proved
by a witness, not shewn to have been the plain-
tiff's agent or in any v ay privy to the cause of
action, that he came from the I'nited States in
1842, to speak to the defendant about ti.eso
notes : that the defendant then said to him,
"(iet me the hirge note yon speak of and shew
that to me and I will pay the whole ;'' that he
lirought him the note when he came the second
time, in 1844, and after much discussion the
conversation ended in the defendant saying, that
he, the w/tness, must see a third party to whom
the (lefendant referred, intimating tiiat he wouM
not engage to jiay until something had been
ascertained througli this reference ; that he (the
witness) made the reference to this third party,
that notiiing resulted from the interview, and
that an action was therefore lirought : — Helil,
upon these facts, (.bnies, .J., diss.) that if the
admissions to the witness could be construed into
an absolute promise to pay, still being made be-
-y 'il:
21.55
LIMITATION OF ACTIONS AND SUITS.
f/lJIRl :
iMl
> I-
Et..
m
off
iff appearing in liia particiilarn to Ipo )i,.y,
ix yoars. J-nrd ft til. v. Simffuril, (S (,i. |! j-
Thc plaiutift' wroto to tlofoiidiint, wlm i,,,
(luinantl against ono C, saying tliiit ( '. Imil .wi
nut I
acconnt had b'jun rundcrotl liv
foro the jdaintiff had received his letters of
adniiniotration, they could not sunport the iasiic
raised, liianl v. Kifthiini, 5 (J. \i. 114.
QuaTc, do the admissions in evidence support
an ahsfiliito iironiisc to pay, supposing tlieui to i him to settle the claim witli <lct'cn(laMt, and
have been made to tiie admiinstrator himself ;! iiuestedliim, therefore, to '
and if tlicy (
to the « itiiess, instead of to tlie administrator,
make any dill'erence. /I>.
Quaere, when can an account be consitlered an
o|ien ni;suttled account, so as to defeat tlie oper-
ation of tiie statute, liy tlie latter items in the
account drawing the otiicrs with tliem. limn-
illoii V. .)/((///,( ii-M, .') (,». H. 14S.
The principle tliat the later items of an account
draw the others after them, and thus save all
from the statute, does not ajiply wliere quarterly
payments (i. e., for rent or tuition) are made
and rcceivcil, as for a late specific independent
(juarter due at tlu" tii'.c of payment, umnixed I ^i- 15. 10").
with items for any (earlier ciuartcr; the presump- j The plaintitF sued, in 184(», on a debt ann
tion in such a case is, unless the contrary is j more than six years l)efore. A new trial v
shewn, that the earlier (piartcrs have been all I m-aiited in KS'iO,' but the second trial was, 1,1 n
.1 .. ..*;.. i:...i /.•.•...'./•/; i/./i ;; " .-, ...-.^ ir ii ., , ., ,., .,
je It to Ills,
does the fact of tlicir being nuule ! plaintilf's account. It was not in-oved that :
' ' ,' .V defi'ii,laiit
whicii he took credit to hinisidf for this as a ii
ment on any particular account :- lid,!, j
this must )>e consitlered merely as an itiin
set-otr, and not as a iiaynieiit ; ainl, tliinii
that the plaintill was not entitlcil to crclit it
a payment of tliat ])artof his deiiiaii,l wliidi^
barred l)y the statute. .Semble, that the imiiss
in (uir act I'i & 14 Vict. c. (il, s. 1, i,f the ii
viso which is contained in the I'JigHsli statiit
(Jeo. IV. c. 14, will not operate to take aw
from the fact of payment anj ell'ect \\|ii,li
woulil have had before. Nodiuin v. ('mut^
Kiiiij'-sCoUiiji: V. Jlf/Joiii/iill,
paid and satisfied.
5(,>. B. SI").
A conversation in whicli tlie defendant admit-
ted that the plaintill' hail a judgment against
him, that he, defendant, had no means of pay-
ing it, but that if they \voul,l be reasonable he
thought his frit'iids woiihl issi.st him ; addingthat
he was entitlid to some crciits, wliicli the plaiii-
tifi's had not allow ed him, and that if they would
accept hind, he thought he could manage to ji.ay
them t'l.OOO in that way, coupled with a hitter
in which det'eiidant proposed to the plaintitls to
make over to them for their claim against him
about ()(X)0 acres of land ; — Held, a snilicicnt ad-
mission of a debt of i;i,(IOO, under the acconnt
stated, to take the case out of the statute. J,'iis-
sell i-t III. v. Cri/shr, 5 Q. H. 484.
A promise to pay by one of several joint and
several makers of a note, would take the case
out of the statute. Sii'tun v. McCtilic it ill,, (i
Q. B. :W4. But now it'will not, under ('. S. U.
C. c. 44, s. ;{.
The IS & 14 Vict. c. (Jl, has a retrosjiective
eflect. Vranlliaiii v. I'mnll, 10 t^. B. 30(j. But
see ( 'roo/.w v. ('rouk.t, 4 Chy. (ilu.
Held, that the following admissions of defen-
dant : "The notes are genuine ; that is, 1 made
them ; but I am under the impression that they
were p.aid through A. and B. , and I don't think
1 am called upon to have any further conversa-
tion with von about tlieni," were not autticient.
Gniiitliiuiiv. J'vin//, (J Q. B. 4!)4.
The following answer of an attorney to his
client, when ilcmandiiig payment of moneys left
for collection, " that the debt had not been paid,
and that the defeii<lant had no property, and
that he, the attorney, coiiM not help the debt j
being unjiaid, " not containing an express promi.se I
to pay, or admission from which a promise could i
Ih) implied ; — Hehl, not sullicient, though it was
subseciuently proved that at the time of such i
answer the attorney hail collected the client's i
debts. JJow/aU v. t'liin-, (i Q. B. 540.
until IS.")2:--Hehl, that the l.'i & 14 Viet, c.'l
which came into oiieration in .lauuaiv, 18,
prccluileil him from recovering on a veilial p
misc. The court, under the eiieuiiistaiK,.s
lowed defendant to claim the lieiielit of tl
statute, though he had not insisted iipdn it
trial, but had objected to the sutlicieney ,if t
evidenceon other gronii^ls. flrdnf/iiiiu y I'uin
10 {}. B. 30.').
In an action on a note tlic iilaiiititi iir,iviil t
following acknowledgment by defeii,laiit : •
received your letter, dated .laiiuaiv I! I. I ;i
sorry to say 1 cannot do any ting for you at ini
ent, but shall remember you as soon as |Missilili.
-Held, not sutiicient to imjiort a ])ii>iiiise t,,
on retiucst, tlie (juestion of defendant's aKiii
not having been raised or left to the jm
(r'llllliult V. Culttlll, () L'. 1'. .")7.
Defelid.ant, one of three partners w lin liail
tracted a debt which was baried by the stiitii
wrote to his agent that be wished to jiav
share of the debts of the tinu, ami iiir,,'nil tl
creditors (is. 8d. in the t', on tlieir giving; li|
a release. .Some of the creditoi-s ai!ee[,ti ,1
were paid, but the plaintill' refused and siii,l
the whole : — Held, that the letter «as iintsiil
cient to take the case out of the statute. HiirH
V. Mvtailf, 17 Q. B. 388.
The plaintifT proved the following littur wik
ten by one of the defendants, the paitmr (,f I
other, both being concerned in the Ijiisiiil
carried on at Hamilton : " Kingston, l'.'tli.\iir
184.S. Your account (t'8'2 currency) lias
hamled us by I)., and we shall write mir llinl
ton friends to have the amoniit ]ilacu,l at vif
cH'dit. Of course you arc awai,' that tiny kl
an .account against you for damages, iVc
to their vessel": — Held, to iniport a ]iniiiiisc|
pay on request ; and there being nn luinill
reipiest before action, that interest slmiiM i|
be allowed. Held, also, sutiicient tn takt
cfiso out of the statute. Juiir.s v. JSrtimi'f
y c. p. 201.
Plaintiff in March, IS.W, rendered tdtlicMiJ
T., daughters of defendant, an account (ifj,'iK{
^^^lere part of plaintiff's own demands stated ,
in his particulars are barred by the statute, he apparently furnished by him to them. .Mustl
has a right to place against these the items of set- ' the items in the account were entered a;;,iiustl|
T fiV
2ir)r)
w\
[TS.
, to acfeii.luiit. who Imd a
uv with aulcudivut, iuid lo-
„.o, to chiUg. it t..lus,tW
It was not iivovfil lliut ;iiiy
ivu.lci-e.l l.y .Ict.'u.liua m
,„lar account -.-Hiia, thiit
Aerca naTc\y as an arm ot
.. wxyw^ni ; au.l, ttu'n trnv,
,« not cnlitU.l to c.v,ht It as
irtof l'i^* lU'niaml wluihwMs
.' Scm\Ac,tl.attlHM„mss,„u
Vict c. (11. >*• '•"* t*'^'V'"-
iu^l in the Kngli^U >tau,u-.
1 not <>i.cratc to taU>. .Nv;xy
„t -mv I'lVcct wlu.li It
vayment any
1 :,, 1S40, on a ilclit ;\trnu'il
' Lfovc Anc^vtn;a^v;,H
.ttl.,. second trial was .Itliiynl
^'.Jleration -•''--'>•,;;:
,,u vecovonngonavcvlMli...
I- under the cu-cun.stauos ;il-
't clainv the henctit ol tkit
he had uot insistc.l nvou il .t
ectcltothe.ulhc.encynltho
juanotethephuntilVi-roVHltk
LIMITATION OF ACTIONS AND SUITS.
.It actcn.lant s a'.ility
kft to the jury.
I
l..tter (late.! .lanuavy .il. i ;i"U
lettei, «i .■ ,„i. vou at \mi-
juestion
Leu raised o_v_
,„, (i C. V. •" •
the c.'eait..vs accel,t.,l .»
lue '
iiisl
m
uc of
'^U;\A:^aUV refused au.l suoU
* ^ ■ vt tlie letter was
Uc case out of the statute
.ei:u'ti-t:tl.eWtterw.sn,,t.lH^
llu-l,H
a. ]i. 388.
.^-fS;;;I;:^s/nAhehu.;.
l-jtliAvvil
,eu.g coueu
lanultou W . ,^, „^,
account (»-«- S"' ■, , ,
have the anu.uut i-lac.a
i.laUL'a ;it yi
Ursc you are aware that th,,l.avj
""^"rvouto .la"u>^^^-^^'v'''1
f" hI "iun-rtavr..m.c'
-'^-'\^tnbMr,4
lMarclil859,reuacreatotl.em
Kfen^ant, an account c
2157
iiaiiu' of tile individual daughter for whom they
sieliietl to ha\e l)eeu ordered, hut several articles
were entereil without its a|i|)earing for whom ^
jlicy were ordered ; the defendant's nauu! did j
iiiit apiiear in the neeouiit at all. In Keliruarv, I
\X(A, )ilaintitl' l»y liis aj,'i'nt l>reseuti'd to the de- !
Itiidaut and one of her dani,diters the followiuj.!
iiieiiiorandnni, which tlnv signeil : "'I'd the exe-
lUtcira of the late (!. 'r. (Jeiitlemen, Heinj^
iiuk'litcd to. I. li. of '['., for ;,'ooils, ite., furnished
(,i ((.<, in the sum of, Ac, as shewn in the an- i
luxeii statement, we aiithori/e you to l>ay this ;
(iniiiinit to him as soon as you may deem prac-
tii.ilili'. A poi'tion of tiiis aec<punt is strictly
ito'i'calile against nitr iimnnnr ni-iti r mul limlht i\
whiili portion we are willin!.' should he charged
.ii;;iiiist '""' interests in the estate, iri- ti.isiniiiiiii
l(,i irliiil' (ihliiin/idii :"- Held, that the signing of
this iiieuiorandum hy <l(fcndant was evidence to
tarnuit the jury in finding that defendant was
iiriuiiuily li.'ihle for the account to which the
memorandum relateil ; and, though the court
»iiiiia have heeu better satislied hail the verdict
l(cn the other way, still, in the ahsenee of an
lljiilivvit hy defendant denying such liability,
tlicv aid uot feel jnstilied in granting a new
,fijl;„Held, also, that tlie memoramlum was
iiiacknowledgmcnt sullicient to raise un imjaicd
iinimisetci pay, being in eH'cet maile to plaintill's
jjeiit luid delivered to him to be presented to the
escditdrs for paymt'Ut ; and that it was, there-
Ion;, sutlieient to take the ease out of the statute.
jft'us liiul the memorandum been sent direct to
ik executors, witluuit the intervention of jdain-
tiff(ir liis agent. Li/mi v. TijJ'itiiji, 1(J t". I'.
IK.
Quare, whetiicr ii bill of exchange, drawn by
(Ideiiilaiit on the executors and payable to plain-
tiS, wnidd have shewn any greater privity be-
Hitiitlio jiartics as to the acknowledgment than
lllemeniiirandum in i|Ucstiou. I'eteli r. Lyon,
[JO. 1). 147, referred to as the proper course to
kive lieen pursued by defendant in order to
itptl tlie presumption of liability arising from
tli« sibling of the memorandum. Ih.
In an action on the common counts, the i)lain-
ItiJ relied upon two letters written to him by
lild'eiulaiits, as an answer to the statute. The
Ifct I'diitaiued this sentence: " Since getting
Itiiur letter 1 have been contriving a measure by
liliili 1 hope to realize enough to make a settle-
■Kntwith yon by next October, but before then
Ikaiulu iiiithiiig, as it is ipiite enough for mo to
alize a living up here at present ; and it is a
lariiil sacritice that I am entering into, the
ftlemetii pay you, no less than giving up my
Wieo and all my little eti'ects to a medical
M, wild is to give me what will materially aid
i curyiii!,' out my project," ito. The second
i(ttff,wiittoii sixteen months afterwards, ott'ereil
awe of land, if defendant would take it, free
khmiiiiilirancc.^, and certain goods, adding, " I
B as ansiiius as you are to have a settlement.
I tills slumia meet your aiiprobation 1 will go
nitii lieorgetown and give you a deed of it.
jit 1110 hear from you soon": — |-leld, (altivming
ienile in Smith v. Tlioruu, 18 Q. H. 14;i, that
kekkiinwledgnient must support a promise to
fcj ou reciuest, either by shewing on the face of
I in uueoiuUtional promise, or, if comlitional,
liiniviiijr the condition performed ;) that the
V letter shewed only a promise depentlent on
ktiiig the suheuie But forth, and that the
:ir),s
seconil was clearly insullieieiit. Yniiiui v. Mnori;
•_'.1 Q. B. I.-)1. ■
Action on a note m:iile by defendant and I,.,
payable to ('., ami by him endorsed to plaintitr,
due in .Inly, I8.V,). j'h.a. Statute of Limit itions.
To take tht^ ca.su out of the statute, |p|aintitl'
pioved that one T. ('., owing defendant .S'50, got
an order, with defendant's as.-.iut, from ('., wh(»
then held the note, on, L.. reipiesting L. to jiay
ilefendant !<'M), which he, ('., wnuhl credit on the
note ; and this sum was accordingly so paid, and
cr.'dited : IKdd, clearly a payinenc by L. on
his own account, ami not by or for dcVendant,
so as to take the case out of tlie stiliite as auainst
defendant. < '(iiriinj \. \'!iiri nl, ^l'.) i}. I!. 4^7.
A note not jiropirly st.iiiiiuil cannot be used
as an acknowledgment to take a ea.se out of the
statute of limitations. Mi-Kmi v. (Iriii/ii/'AO
<). li. .■)4.
In an action on a ilote made by ch-fi'ndant
payable to the plaintilf f<ii sKmM), itwas iinned
that when the note w;is given, an account was
stated between ]ihii]itill' ami di lVi;.!:inl the sum
; found line being .S4,(U)0, the amount >f the note,
which was m.ide up (d" the pi ineipal .vunis ad-
vanced from time to time, and o.' the interest on
: those sums, which it was then agreed should be
converted into iirineijial: Held, sulliiiciitto take
the ease out of the Statute of Limitations. Held,
^ also, however, that the statute lu^ver ajiplied at
all, as it was proved that in ISlKi, bi'lore the
! lajise of six years, the plaintill and defendants
j met together and stated an account in writing,
; at .'<L!''j;i : and that when the sicond accounting
took place in 1871', being within six years of the
former accounting, it was agreed tli;it in the new
account the former account should constitute
an item, tlii^ written acknowledgment of \\hieli
was given nji to the defendant and burned.
I //-((.sv v. J/i,ii.i,', '24 V. I'. .-.-Jt).
In an action by an executor for services rcn-
; dered by the testator as a labourer, on a monthly
' hiring, extending over many years, it ap]icaie(l
that payments had been made on account, at ir-
I regular intervals, both to the testator and to
I the plaintilV after his death, without any spe-
cilie appropriation either by the ilefendant or
the payee : Held, that the iilaiiitifl wasentiticil
to have such payments ajiplied to the earlier
i items which had beemiie barred by the statute.
! (ihuere, there being only the one claim, for eon-
1 tinuous services, whether a jury might not infer
' that such payments were made on account, so as
to take that part of the claim jirior to the si.x.
\'ears out of the statute. Cdllicdii v. J/iK/i/art,
37 Q. n. 47.
The plaintiir, an attorney, had an account for
costs against defendant, a merchant, for services
rendered before 1870, and which was therefore
barred by the statute. It apjieared that in I87"2
the plaintitl' ordered goods of the defendant,
i without any agreement at the time as to how
they were to be paid for, but after defendant had
rendered his aeeount for them, the plaintitl' told
him or his clerk that he had credited it against
his, the plaintitf's, account, to which defendant
assented. In 187">, the plaintill' wrote to defen-
dant sending his accimnt and asking for jiayment,
and stating that he had credited defendant's
account rendered. The defendant's clerk an-
swered repudiating the claim :— Held, 1. That
; y
' i!|s
*
xm
2ir»D
TJMITATION OF ACTIONS AXD SUITS.
•Jli
;
tlioro was no eviilonco of miy imymciit on ac-
count to tiiko tlic case out of tin; statiltf, tliere
being nil lu't on ifi l'< inlan/'s /mi/ c'lnioutitiiij,' to
payini'nt ; ami, '_'. That tliu lotttT if it liail con-
tainetl any aiknuwli'ilgnicnt, wimlil liavu ln'cn
in()|)i,'rativo, not licing signoil liy ilcfi'nilant liiin-
sulf. /loll V. /'iirbr, -Mi). H. 488.
An exi'fiitcir lU' non turt caiumt, liy giving a
confi'ssiiin cif jiiclgnii'nt, nr making jiaynifnts on
ai'cimnt of a dr\>t, or \>y any otiior act of his,
give a ni'w st;irt to the statute as against the
rightful administrator, or tln^ parties l(cnuli<ially
iutcrcstiil in the estate. (Irnnt v. Mr Ihiiialil, 8
Chy. 4(;s.
HeM, that mere physical wcakni'ss, however
great, «iHiout jtroof of mental incapacity, is not
. ''tKcient to render invalid an aoknowledgnieiit
of .lelit. luiicK V. Kiiiis, I i Chy. ;Vi").
■\Vliere a deht, the remedy for whicli isharred
by the Statute of Limitations, is acknowledged
by the delitor, and juilgment is recovureil there-
for, ii Voluntary settlement made before ^-ncti
nckuowk'ilgmcnt, and l>ef<U'e the remedy is
barred, is void as against a ,/'- In issued on the
judgment. Irii'in v. Friininii, l,'l t'hy. ■ICiii.
A s\iit of foreclosure or for the sale of mort-
gaged premises in default of jiayment is not a
suit for the recovery of l;>.id, but is a proctx'ding
for thei-ecovery of money due upon land within
sec. 24 of ('. S. U. ('. e. SS. Where, therefore,
a mortgagor wrote to the mortg.'igee in answer
to a demand for [(ayment, " I will comply with
your reipicst as to the I'epayment of JJoOO I b(U'-
rowed from you so many years ago, and until T
pay the money I will execute anything you wisli
me to do for its security" ; and there was evidence
showing that the only money ever loaned to the
mortgagor )iy the miu'tgagee was the sum so ail-
vanced on the mortgage, it was — Held suflicient
to take the ease out of the statute. Jiiirir'ick v.
Bunrhk, L'l t'liy. .'JO.
.'{. Aruii/diu'c III/ J'rocrss.
Where there have been several writs of «!a.
re. sued out and the last served, the jilaintitf, to
liave the action considered as being eounueuced
by the lirst writ, must shew at the trial that it
was returned. Semble, that the continuance
between the intermediate writs may be entered
at any time. Mc/^cnii v. Kimx, 4 Q. ii. .VJ.
The commencement of an netiou may be i)roved
by the i)roduction of the writ of ca. re. Upper
V. MiFndawl i-t nl., 5 q. B. 101.
(^)ua're, is the statute .saved by a writ issued
before the exjiiration of the six years, though de-
fendant was not served with such writ, but had
been served with an alias writ issued after the
six years liad expired, and though the first Mrit
had not been returned until after the six years?
JJohiKui v. IIV//r,-, 8 Q. B. -202.
Where an action for services rendered was
connneneed by writ of summons, which was
succeeded by an alias and pluries writ, each of
which was placed in the sheriff's hands, Imt not
served or intended to be served, and defendant
was afterwards served with an alias i)lurie8 sum-
mons, it was held at nisi jirius that the stiitute
would bar only such demands as had accrued six
years before the issuing of the first process.
Nvtimm V. Crook-s 10 y. B. 105.
Tn an action on a note, duo 4th Septeini,,
1847, the original writ issued on the l,"itli Ain-
I8,"),'{, and was retiirneil non est inventus. ;ii
tiled Mrd Septendier, IS.'i.S. On the same day ;
alias writ was issued, which was also retuiiu
non est inventus, but w.is not tiled until tiie p_>
May, 18.')4 ; nor was any mcinoraudiim iinl,,!..,,
on it, specifyiu;" the dat(! of the lirst writ.
jilinies issued on I2tli .May, ami was served i
■'Jlst.iidy. I'lea, the Statute of Liniitatioiis ;
Held, that the 12 Met. c. (ilt, s. 2."i, not havii
lieeu complied with, defendant was intitled
succeed. I'unl v. Mrh'iK >/, 12 (,). I'., ,")0,').
4. S/H'c'ifilHitt.
Where the mortgagor is in ]iossessiiiii a m,,,
gage may be presumecl satislied alter tweiii
yi'ars from the iiayincnt of the mortgage niiiiie
/)ii<' i\. Mi<!i-tiiiir V. l/iiirkc J)o( d. Jli'di'ii
Croir, r, ( ». S. 4!)().
itjiii-
Where there is no re-demise to tlii' niort'a",
until default, and the laud is vacant at tlie ?■
ecution of the mortgage : Semi ile, that tl
mrirtgagee being under such an instiimiii
deemed in possession of the land by oiicratii
of law, the presinn))tion of payment alt
twenty years does not arise, even thoii'^h tl
mortgagee has never made an actual entry, ik
received any ]iaynient on account. \. \\"\\<,,]
A., diss. Mnlitir el ii,i: v. I'ru.tir it ul \- ^
\\ 408.
'I'lu! mere fact that the mortgagee is harit
by the Statute of his remedy on the eipveiiai
of the money will not establish a piiymeut sn;
to reconvey the legal title to the niortga"iir. /
5. Ollnr i'li.ii'H,
To a ])lca of the statute in assumjisit, a itiil
cation that the defendant was a sherilf, ainltli
the amount claimed was an ovei-plns ninainiil
in his hands of money levied under a Ii. la., \\\
Held bad on general deunirrer, altli(iai;li tl
])laintifF might have evaded the statute liail ^1
declared in c;use, setting out the (^ircunistiuij
specially, lliniijli-i v. liiikir, 2 (). S. ,S7o.
Where, in assumiwit on a ]ironnse to imkii
nify, defendant pleadeil that more tlian .^ix ye;
had elapsed since the promise accrued, the iil
was held bad on general deuuirrer. Iris\ //
T. T. .T & 4 Vict.
The exception in the statute extends toatti'
of account, not to actions oi assinujisit dii (i|'|
accounts. Jiitsxi'll i-t al. v. Itolii'i'tmni, | (i.
2.35.
Semble, that the court has autlioiitv tn iirevii
an attorney pleading the statute to (kiVat|
client's .just claim, i)ut that this ]i(]wer (kifs
extend to his executors. JJuinjall it nl. y,(Ti\
a Q. B. .54(i.
The suffering a judgment by default in ai;|
where the plea of the statute would have hw
bar to the action, is no j)roof of fraud in thf
fendant. H such judgment be fraiidiikiitl
giving a preference to one creditor over aiicitlij
it can only be objected to on that grotuul
creditor. Sloan ct al. v. WIkiIcii, 15 C. 1'. .'fl
In an action by an attorney against liis iliJ
for costs, it appeared that the claim was hm
rri.
2K.(t
21<'1
LIMITATION OF ACTI(>NS AND SUITS.
2K)i
„t., .l«c 4th >.■"•"'"■■
WHUeilo.. U.cl.-tl' Ai.n\
X „.m e»t iiiv.'iitus ;uia
^Vi Oil the miliu'iliiy iiu
uvim'U.nnuiaum.na..,,,.,
;l,vto ..f tl.o lir«t wvU \
li N\ivv. ii"'^ ^^'"^ s.ivi-.l (ill
SUtl'ltf «>f l.iimtitlnlis;. -
. ^ [\:\, ^*. -J.'), ""t U:ivill«
,\;.f,.u<laiit WHS .ulitl.d 1,1
iHKcr'^ii'ii n nu'rt-
u.i^mI' «at\sliu.l iiftiT tw.uty
h
,1.1
)iv the Htatuto, I'ut that tlif lainls of tlie dofoii- 1 tho nilo of the (•mii't jiiviiiLr tho iiiaittcr ft iliHcre
(liint ill tho suit li.ul licoii wiM uiuh'r a ti. fa. siu-il tiim as to tlui iiioih' of vmu liini,' aLTiuints in hin
„ut witliiii six >. ■ill's, aiiil Ixiiiglit in liy this (U;- olHci;. IVii/imti i/ v. Hull, 1.") ( hy. "JIO.
fpiiilaiit, iiniU'r liis ov.;i fxcciition: lliild, tiiat |
this Moiihl not I'fvivi; tin; ohiiiu, l>y making' the
vgoris in 1")'
,,„imI s'.vtislK" ■
t of t\u' u,ort:.;;;uy ..'"«uy.
//,„r/.vy>o.«l. .>/'•'-'•■ ;;"''v.
„ ,,..U.i.use to th. nmvt^a,..'
■lu-laiiA i« vaoHiit at tho .v
" "liTor «iu'li lU' ii.stniiiuut
Z^ the huul hy n,K..MUuu
that the iiiovtyajj^e is h:inv.l
ft veiueay on the euvcnai
I testahli«hav;.ym.nts„ .
iVgal title to the mortgagor. /'..
,-,. Olhn- Caxct.
1 4..,fiitp in assumiisit, a \v\X\-
:;i::Thi^i^', -2 o. s. sTo.
.,.,t on a proimso to uiaeiii-
'T I uvUiovelhai..ixy,;u.
.^^;;:^'iiseaccn,.Ue,^.
u general .lemuvver. ln.^^. n .\
".leaauigtl- ^-^^^^ ,,,.l,,,,„,,tf
hi^'Sl^eiSti^a
Lot the st.vtuie 1^
liou,isuc.vV(.{'' ''•! j,,i^,,,
Ll.van attorney against his c JjJ
feiLed that the chuuov. bam
(Uifomiaiit aeeoiintahie to the iilaiiitiH' as if lie
lliwl then rceeiveil tiie costs to ili.s Use, hut tiiat
(illlv the costs of tlie 11. fa. eouhl lii! recovered.
/,„;,y V. Ihilhtii, II (,». I!. .V)4.
Hchl, that a plea to a foreign juilgiiieiit siitting
HI) tlu^ Statute of l.iinit itioiis as a l>ar to the
c;iii.-e of action on wliicli the juilginent was re-
covered, was hail, ill not Htatiiig that it wa.s
the ncriod of liinitition aci'ordiiig to the foreign
liw Fiiirlir V. I'di/, 'Si ('. I'. 417. It i. i • ^ ■■. i 1 1 ■■ . n i
'•'"■ ' In a iiartncrshiiisuit it was h,'lil tint tlie de-
QiiaTC, has the statute of limitations, 13 & 14 fence of the st:itiite eoiild ii,t lie r.iiscil under
Viet. c. (il, a retrosiieetive cll'eet, ('riink'M \ ''' '
('/•('«/■<. 4 (.'hy. (MT).
Where a nieniUer of a iiartnei'shiii, whoso
aceoiints the master w.is cUiicted to lake, was
hy order made a ]iaitv in the master's ollicc, liiit
on suhseiiuent ciuniiry it aiipearcd that all
liahility on his ii.ut was hiircil liy the statute,
the master, on the aiijilii atimi of the |iaity .iddcd,
discharged lii.s former older, imlding tli it he was
not a necessary or iiiii|ici- jiarty, and that all
jiartiiershij) accounts rii|uiicd to he taken could
lie taken in hi.s ahseiice. Klim v. Kl'iiii , ',\ C'hy.
Chamh. Kil. -Uoyd, Mn*li,:
Tho Statute of Tjiinitations forms no har to a
cliiiii a"aiiista inorti:at,'ee in jiossession for oeeu-
pti.iii rent. <■„/,/„•',// v. //.///, IK'hy. 110.
All executor has a right to retain a del.t l.arre,! tHe partners wholl,
|iv the Statute ot Limitations. ( rwiL-< \\ ( rinil,:<, /,,,(,/ IS (!hv ■'4.')'
the common dciTcc, diivitin^ an account of the
l)artiierslii|i dealings and tr.insactioii-,. Cnrnill
V. /iVc/-.-<, 17 (-'hy. :,-2'X
Tn |iartiiersliip suits the clefeiice of the statute
is iKit availahlc unless six years have el i|iscd lie-
fore the liliiig of the hill since the dealings of
y ee.ised. Storm v. ('idiiliri-
4('liy. (!i;
Where an executor of a creditor i.s also adinin-
Where a dehtor made an assignment to trnsteoH
for the henetit of those creilitors only who should
istiMtor or executor ot such credit.irs dehtor. , ^,^,,,,„te it within n„e year, or m.tifv the trustees
,1,, right of retainer arises when there are any , ;„ ,,.,iti ,- tlu.i,. a.s,.iit to it ; and where one
assets, and he will I.e assumed to have exercised , ,,,,^,,,t„, ,-,^,, ,,^,^,„ ,^„..^,.^. „,■ j,,,, j_.,.,„^ „,• j,,^. ,,,,^„,
snd, right with.int any actual act o aiiiiropna- | ,„„i „, ,i^,,te.l to sign it. hut had notilied one of
ti„„ iciiig estahlisicd : and though his elaim ! ti.e trustees of his assent; and .mother creditor
wnuld othcnvise I..' l.aried hy thestatute Mmr j ,,_.^,i „„t ,,^.^,„ ,^„,„,,, „,■ ti,,. ,K.,,.l, l,„t had tak
wKliii'-, .H-liy. ( liainl). Idl. — Boyd, Md.ilir.
taken
lo iiroceedings hostile to it, ami had given his
The right of retainer out of legal assets a].)dies ' ii»»oiit to it when it came to his knowledge ; and
t.iuiiuitahleaswell as to legal dehts, esiiecially ( aii'jtlier,^ though aware of the deed and its pro-
iii a case where
treiliters. Jl>.
A will disimsed of the hcneficial interest in
hiiil, hilt left the legal estate to descend to the
-Taylor, J'l/i-,
there is no competition Jf ^■""""'*> '''V^ 'l'-''""'''' '-''''•■'■'!'^'''' '•-'""' ""'^'''•-■'^ *•"-'
' trustees of his assent to it, hut had never acted
contrary or taken lUdceeiliiiL's hostile to it : —
Hehl, that they were entitled to come in and
prove their claims ei|iiallv with those creditors
lieiv: -Hehl, that lapse of time, falling short of ^vho had executed the .Iced in accordance with
the sti.tutory hir, was no defence hy a purchaser | its terms, although tliev had allowed more than
from the hcir-atdaw. Siiiil/i v. Jitmiiishrl, 13 ten years to elapse. <//)»(/ v. .l-An/is S I.. .1. X.
C'liy. •-".». S. 2ll.— (.'hy. Chamh. ll.->.
Htlil, that the Statute of Limitations does
not li;ir the claim of an executor against the
estate nf the testator : that an executor is not
justitied ill keeping an estate open and unad-
miiiiatored in order to iditain interest upon a
claim which he has against the estate ; anil that
iltlay en the part of executors to sell lands which i
liv the will are salealile for payment of dehts
will render the executors liahle for rent and
[irolitii. A'//i(.-i v. Eiiiis, 11 C'hy. Sij.
The executor of an estate, which was small,
[*niiitted the widow <if the testator to receive
the iiiimcys of the estate and expend them in the
fflppoit (if herself and children ; and on the
diitst sen coming of age in 1852, the execntor
xiiitod (lilt to him the clause in the will direct-
aM'nthvd.
III. Dr.sABII.ITIKS.
1. Ahsnii-i- from tin; Coinitrji.
Vkt. f. JO, this 'jroiiitd of diMhiUtij in
The statute did not run against a plaintifTah-
sent from the province at the time the cause of
action accrued, nor until he came here. Forsiilli
d a I. V. J hi II, Dra. L'itl.
A plea th.at the defendant and plaintitl' were
hoth resident in a foreign country when the
cause of action accrued, and that hy the laws
of that country defendant is discharged, hecause
in:' a ilistrihutiiin of the personal estate, Imt the ' no action was hrought there within six years,
wily estate the executor then had was some I the defendant and plaintiff having hoth resided
hmiseliold furniture. In 1807, the widow hav- there during all that time, was held had on
general demurrer. J fart v. Wiliuii, (5 0. S. 19.
In a replieati(m of the ]ilaintiff'3 absence, a
place where he was must have been alleged.
Hannaij v. BeU, (! O. .S. '1m.
Where toa plea of non assumpsit infra sex annoa
a plaintiff replies the residence of the defendant
beyond the jurisdiction of the court at the time
J setuji a claim for dower, rejecting an annu
I ity iiriiviiled for her by the will, the ueir-at-law
"' la hill against the executor for an account :
1 Held, that the statute did not bar the relief ;
it, iiiiisnuich as the executor had had reason to
beliive lie would never be called on for an ac-
j count, the court thought the master, in proeeed-
jing under the decree, should act lijjerally upon
136
t i
3103
[.IMITATION OF ACTIONH AND SUITS.
SlOi
the action iiccnicil, uiul ii ('iinitiiciiucinoiit of tlic
nctinii within Hix y''i"'>« iifti'r ii rtitnrn, tiic Mulli-
I'icni V lit' imiiif (if tlu'Mc f:ii'tH in ji i|ni'Hti<in fur the
(It'cinicin III tlic jury iiml n'>t a uniiinil nl nouHuit.
Jdliii-iiiii V. liiithniiiiii, I <,>. II. 171.
Actimi )>y liiiHlninil iiuil wifu on n (Mintruct
nmili! witii tlie wilV licliiri' nl.■lrl•iaJ,'^^ I'ic.-i
tlic Ntiitiiti; ; to Mliicli tin' plaiiitill' ri'pliiMl uli-
Hi'nctr 111 yuml tiic sian « Inn tlif ciiusu of lU'tion
Hccruuil, niinn wliii'li liiti iiil.uil took Imhul'. It
WiiH |iiiivi(l tliiit tlu' wife liaii lU'M I ln'rn in tliiM
in'ovnii'i', anil it a|i|iiiiiv>l hIh' hail licrn niarrii'il
m Scoti.mil : llifil, not nirt'.-<nary to ithuw that
the hii.slianil iii'Mi was in thin jaoviiiff. (Ii'viij
it ii.i\ V. Hiiin/, I t^i. I!. 47-'.
'I'll a pha of till' Ktatnto the iilaintitf rcpliuil
that \\ Ir'Ii till! caiiKi' of attion acrnuil Im wa*
I'i'Hiilint in l.owi'l' Canaila, ami the (Icfcndant
ri'jiiincil that lir wan also ii'siiUut in l,owir('an
aila all that tinir. 'I'hr irjoiniler was hcM liail.
Sini/1.11111 V. J'rirn/, •_' (^. H, iJtJ"). Sue ivIhu Ad/if
V. Siii'i/I, 4 ti». Ii. 44H.
Till! ih^l't ml ml jiliails the i«tatutc ; the plain-
till' irplius, alisfnt'i'. 'I'ho plaintill' liavin>{ an
aj^ent in this province transact in;,,' his hnsiiuss,
«ho nii;,'ht Iimm' siuiI, woiilil not ili'privo the
[ilaintitr of thi' lient'lit of thi' exception. Linn
V. StiiiHitt, \ (,». It. 44(».
Toil ]ili'a of the statute the piaintitr replieil
that when the iriuiKe o»' action acerueil he was in
loivii{u )iarts, fn'., anil iliil not return to this
jirovihie till the 1st ot .luly, IS4(!. 'I'he ilefen-
ilant rejoineil tiiat the iiiaintilT iliil not, on the
flay nanieil, or at any time, letiirn to I'ppcr
t'auaihi: Held, that the issue waa inmiaturial.
C'ronhi/ V. Ciilliiix, 5 (.i, B. Mr).
Whenever a jilaintill' conies within the juris-
diction the statute liei,'an to run, and he could
not iirjic as an excuse that he did not remain
long ei 'h to sue. It waa not necessary to
shew thai lefcudant was also within the province
A\ lien the iilaintiti' came, unless such issue was
exjiicssly raised. '/'iirrdiin <f nl. v. /'r'irtil, '.)
ii. 15. 'tiO.
The 2.") Viet. e. '20, aliolishcs all exceptions
and distinctions in favour of absentees. J^un' v.
Mon-ixini, I4('hv. lie.'.
2. Other CaseM.
When the statute onee begins it continues to
run, notwithstanding any i^ubseijuent disability.
yjor d. /)i.o,ii V. Unail d nl. W (). S. oil.
The plaintiff iiroved possessiun of niiio acres of
land cleared by liini since 1847, more than twenty
yeans. Defendants father died in ISoO, defen-
dant being then oidy aliout four years old : —
Held, that the plaintill' as to this portion was
clearly entitled by possession, for the statute
having liegun to run against defendant's father,
would continue as agaiii.st defendant, notwith-
standing her infancy. Whjk' v. Utewaii, 28 Q.
B. 427.
The respondent filed his hill to redeem a mort-
gage made by his father in 1835, payable on the
4tli February, 18H7. The mortgagor remained
in jiossession until his death in May, 1838, and
his heir, (then an infant) continued until some
time iu 183<J, abuut a year after the death of the
mortgagor, when tiio mortgagee obtained pimNvii.
siiin. In 1812, the mortgagee sold tn nue if Hm
aiipcllants. The respmidant's bill was liliil ,„(
the iHth (tctobtr, IH,V,I ; Held, allirmiii- t|m
judgment of the Court of Ch/uiccry I. 'rii;,^
the respondent was entitled to redeem ; 2. 'I'Jiat
dis.'tbilities apply to the redemptiiin of iiiiiit;{a"i'4
the same as to actions to rt'covcr land nr rent
and that the statute «as no bar to the relief
sought by the respondent, l/alf v. ('iilJ,r,ll 7
I,. .1. 42,' -i:. .', A.
In 18 2, A., a maniac, conveyed land to Ii.
who then entered into posscsKimi. \, died in
182(i, C, his eldest son and heir, becanie nf
age in I82'.l. lie died in I82!», and his Imitjier
ami heir, D., (the lessor of the plaint ill,) lieiamu
of age in 1831, and brought i jretnient ay.uiiMt
Ii., on the ground that his fatinr was nun ihim-
pos at tile time of his executing the deed in |S'.'2,
l>, brought his action more than ten years after
th - lunatic died, and after he himself eiinie nf
age, and more thanlivi- years after 4\\'ill. IV. u.
I : Held, that l>., under tiie>-e fai'ts, «as b.uivil
from recovery by the Statute of Limitations ;
and Held', also, that Ii. could not be cnnsiijiieii
in possession as the servant or b.iilill of tliu
lunatic. VA/- d. S'dn rllinni v. 'I'kiI, 7 l,i. Ii. 370,
Kjeetiuent 'i'he plaintill' idaiincij as heir-at-
law of K. v., his mother, the p.itciitce of tlie lut
in ipu;stiiiii, under a jiateiit i.ssiied the l.'itji cif
.Vugust, l8.'{li. Itappearcil that. I. K., piaiiitill'n
father, died in April, I8.'i(), and iiis iiiullii r, ilm
patentee, about two years before. I'eiiini.iiit
had been in possession since IS.'td. 'Ijiis Hiit
was issued the lOtll Septeinbi r, I8()l : llejij,
that the patentee having died under the ili.'.aliil-
ity of coverture, the plaintill, under ('. S. C. (',
e. 88, K. 47, had ten years from 'her deatli, ur
twenty yearn from the time when lur ii;;iit
accrued in 183(i, and that both the iierimls h.niiiL,'
expired before the issue of the writ, the jilaiiitilf
was barred. The fact of the father being fiir twn
years tenant by the curtesy wmilil nut gi\c tin
plaintill' twenty years from his lather's deutli.
\Vigle /•. Merrick, 8 V. V . ,'ll)7, reni.uUcil iiiinii,
Fiiriii(li(ii:iiin v. Morri/ii', 12 1'. I'. 3il.
After the expiration of more than twenty vi ar.n
from the accrual of the husband's right tu m;iku
an entry or bring an ai'timi, the statute will
operate as a bar during the covertiuv tn ;iiiy
action by husbands and wivi^s jointly tor l.-iml
Owned by the M'ives. Iwii'llstt al. v. /,',;,/, l.'i
c. r. 4'.»o.
A. insured with a mutual insiiraiicc euniiiaiiy,
by a policy expiring on the 2(ltli .liine, ISli.'l.
The 2'J Vict. c. 37, passed on the Istli SeptriiiluT,
ISti"), enacted that no suit should In; biimglit un
any jiolicy after one year from the loss, "<
year from passing the act, if the lo-
pened before, n(triii<i th
lUidi'f l('(jul ilUdliUldj. 'y t III- lii»s
hapiieued before the act, ne .ictinii "is
not commenced within oi i loni itspa.s.^iiii-,
defendant rejdied, that wi the act was p;i.s.ii;il
A. was in prison (not sa\n, for fel \\), m\\
continued there until his death ^n tl -'1st Fili-
ruary, 18()7, and that the action was 'iinii(iin.il
within a reasonable time after his deatli : \\M,
no answer to the plea. Titllniun v. Mnliuil Fie
Ins. Co. of CliiUuii, '11 Q. B. 100.
In ejectment, the plaintill' claimed as laii-at-
law of his mother, T., a daughter nf II II.
'.U\\
iKi.'t
LI.MITATKJN OK ACTIONS AND HUI'l'S.
L'lr.r,
(till t" nil"' '• till)
jirM, iilliniiiii^ th.)
„f Clmuory I. 'H.^t
„lt,, ir.lii.1" ; 'J. llmt
„ ,, ,„v>.r lan.l ..r ivMl,
I ll„ll V. 0./.'.-//.7
|(S'".>, mill lllH IllntluT
, ,,n\iL- ).l:«ll.tilV,)l"'aMi«
\„H t.vtlur xviiH i.MU .u.n-
,,vvaut .;;• t-'j' \ V! .J
.aintilV .■lai..»-l as Wir-at
'..,• tW \>alrMtoi' ol till l"t
k-.0. aua\ii.sui;itli.i-,tl.«
> > . lu'ii; T us wilt
; ,,lai.ailV. mi.l.r t . > , • •
„ vcavs fn.ui 'Ikt lUaUi, 'i
l\i\^ tin.o Nvl.c.i. lur n;;lit
lthatli..thU.-l->-ioas..v,i,u
;^^:;f5.cfau:.ru..i".i''.tw„
curtesy xvnuia .mt ^;no t 'e
.^ffn.u l>i^ fallu.i's ileal..
.col', 1- ^' '
ti,„i the stiltllti: will
)8.
V'
'"« "", H.: ShSovt.iiili^'V,
the act, .{ the ^-.-^'^^^^„
,,t i\w loss
, uu .ictiiiii M .1.1
., omits vasfiii;;,
„e act was viwsci
for IVI ^'••""'
CI If
:„;/ Ihi'
lit!!- ''"
Ihe act,
li thill oi
that V
. (not «av..^ 1"' ■• .^,,.jVeli-
ntilhiHacatlMmt - ^^^^^^^
that the acti.iu %Na. jj,,
till, whii wan liorii in Mniiii
(l;UitH I'lailiu'il title to tlic laiiil liy liii^'tli iif
iHisscMNiiin : 11(^11, that tliu cstati' ni the |ilaiii'
titl'i* I'atlier ill riu'lit nt' Imh «il'i' liiiiii,' mu^ fm'
Sit' /lumnll 1 1 III. V. Ill mil I. -"Ill,
ii,'ji;a
V. I'. ISO,
IV. AniiKAii.s (PK ItKNT oit Intk.iikst.
Tlic Statute of Liiiiitatioiis I'linn im har ti> ft
chilli against a nioit;,',igf(' in ]i(isscssiiin I'ur oceu-
imtiipii rent. Ci<lihrill\. Hull, !» Chy. 1 10.
A testator bei|Ueathetl his puiVMonal uatato to
liin cxecutri.K ami exeiutuis, in trust I'nr the jiiir-
iiiws of his will, aiiil lie gave to tlieiii, in the
quality of truHti'i\s, for tlio use of his sou for
life, luiil after his tk'atli for the iisi' of his sons
vliililivii, or eliilil, if there slioiilil lio Imt one,
"the sum of fl.ritK), line to nic hy <'., ami »e-
iiiwl hy a certain iiiortgagr," I'te. : llild, that
tlie legatee was entitled to elaiin iiioro than six
viiiis' arrears of interest, the trust liciiig uxjiress,
iiml the statute therefore not apiilyiiig to the
ase. Loriinj v. Loriii;/, 12 Chy. S74.
Wlure a pureliaser takes iiosses.sioii lieforo
oiuvuvaiK'c, he is liahlu to iiitiicst froiu tlie time
{if taking jiossession, ami the liahility is not
limituil to SIX years. 'I'lir Una/ U'lilirn It. IT.
i.'ij. V. Jiiiim, l.'l t.'hy. .'(.').">.
Itiiring the lifetime of a niortgagir the imnl-
/iii;ee has no lien on the mortgaged indperty for
iiMiu than six years arrears of interest, though
Ik may have a personal aetioii on the eovunant
iir more ; hut in this country, as wull as in
Kiiglaiiil, after the miutgagor's death the niort-
gWLU, to avoid eireiiity, niay, as agaiiLst the
Lira, tack tohisdelit all the interest recoverahlu
iiu tlio covuuaut. C(trroU\. Ji'uln'iisoii, 1") Chy.
i;3,
.K miirtgagee sold the mortgaged iirnporty un-
der a power of sale : —Held, in a .suit by the
uortsigor for the surplus, that the mortgagee
I «iit ntitled to retain arrears of interest for j
1 DKir than six years. J'oril v. Alliiii, lo Cliy. .")().o.
. (In a piirehase of land the vendee gave his
Inotc payable in a year with interest, for part of
I the imrchasu money. The vendor died before
I tile note became ilue, and administration w;vs
I wt taken out for eleven years. In a suit eoni-
I menctid a year afterwanls by the administrator
1 It wiw held, that as the cause of action diil not
I arise til ther' vas some person to sue, interest
I Wii<recoverahli r the whole period from the date
I of the note. ,Sti ctnson v. JJuildir, 15 Chy. 570.
I k mortgage had l)een transferred to a trustee
ItOKcure ttrtain notes of the mortgagee, one of
wliiili, lifter Ht'veral years, was found in tlio
i.'llld of the a.>isigliee of tlie mortgage, and a
suit liaviiig been instituted iipoii the iimrtgago
by till' trustee aiiil the party interesteil in tlui
note, it Wits Helil, thai to the extent of tliu
amount reiiiaining due on the niortgagi', IiiiIimU
iiig six years' interest, the party beiiilieially
interested WIM entitled to leeovir the aiiioinit of
the note and interest for the whole period thu
note hud run. Scalrln nl v. Kiili/, ■_'■_• Chy. S.
Sinee the .\. .1. .Vet, ."{(i Viet. e. S, (I., and tii
avoid eireiiity of aetion, the court will allow in-
terest to a defendant lor more than six years in
a suit to redeem. Ilmri ri n v. Ilrii'l'inrii, 'J2
Cliy. !M).
Willie a defendant desires to |>reveiit tlio
plaintill' from reeovering interest for a longer
period than six years, be must set up the di'fi'iico
of the Statute of Limitations ; merely liling tlio
usual disputing note is not siijlieieiit for this |iiir«
pose. H'/'/;///)' v. .t/(i/v/</y/, '_'4('liy. b")7. Ileversed
on appeal Idth June, 1S77.
V. TKU,srKK.s AM) .■VdKNT.S.
^Vherc lands are devised to trustees to sell and
divide the proceeds among tin; lesidiMiy leg.itees,
this is not a charge upon l.uid williin the mean-
ing of the C. ,S. U, ('. e. )S.S, see. •_'(, mi a> to bo
barred by the lapse of twenty years, but it is ji
ease of express trust williin the ;t'_'iid seetion of
the same aet, following Watson r. Saul, I (litl'.
bSfi. Tijl'iiiii/ V. Tliiiiii 1111,11, !l I'hy. 'Jib
.\ liill was tileil by a surviving p.irtiur, 'gainst
the representatives of the deceased pirtiier,
jiraying an account of certain partiierslii[i deal-
ings, to which a demurrer for want of e'lpiity
was allowed, on the ground thai the relief sought
was barred by the lapse of more than six years
between the death of the deeeasecl partner .iiul
the liling of the bill. Leave was given to uiiit'iiil
with a view of shewing that certain land held by
the deceased partner, and which had ilesceiided
to his heir-at-law, had been purchased with ]iart-
nership assets, and that tlierefoiy then' was a
resulting triut in favour of the idaintiH'. MrJ''wl-
i/iiiv. iSfiiriirt, II Chy. 'J7-.
Conveyances obtained by a solicitor from his
client must state the transaction correctly ; ami
the solicitor must preserxe evidence that an
adeijuate price was jiaid. and that llie tr.msac-
tion >va8 in all respects fair, and such as a com-
petent and independent adviser of the client
wouhl have ap])roved of. Where these obliga-
tions are neglected the suit of the client must
be bnuight within twenty years ; but an uiicx-
plaineil ilelay of less than that period may,
under eireumstances, be a bar. \\ here iiiiicleeu
years had elapsed, and the delay wcs accounted
for, the heirs of the client were held ontitlcd to
relief. <)(iki:i v. .Smilli. 17 Chy. liOO.
A deputy registrar having remitted registra-
tion fees to parties who emidoyed him as a con-
veyancer, the statute was held to be no bar to
the claims of the principal for such and other
transactions between them. Sinilh v. llnlfurd,
19 Chy. 274
The Statute of Limitations being urged against
the admission of claims by creditors under an as-
signment : — Held, that the relation of trustee and
cestui que trust bad been established betweea
i I
... iipl
I i ■ I m
Wi II
2\Cu
LIMITATION OF ACTIONS AND SUITS.
!1GS
the awsigiiet's and tlie crcilitors who had acqui-
esced ill the deed, as well as thoHC who had
actually exe'iited it, and that therefore the stat-
ute was inojieiative. (t'liiiii v. Aihtiii't, 8 L. .r.
K. S. I'll -Chy. t'hanii).— Taylor, Jtij'i-.ne.
There Mas also the additional reason in two
cases that t!ie statute had never Itegun to run,
owing to the creditors' riglit of action having
arisen after the debtor had aljseonded. Iti.
TriiMc Officers.
A surveyor of streets appointed under the
Provincial Statute (Jeo. IV. e. !(, does not come
within t lie .")()( Jeo. III. c. I, s. S4,which requires
aetioi:s for anythii! ,' <lone under the authority of
that act to he hrouitht within three months.
McFarlaiir v. Mr/hl^Kjii'l, 3 O. S. 73.
Actions against the otlicers of Her Majesty's
ordinance, as incori>orated under 7 \'ict. c. 11,
are sulijcct to the limitation provided for in S
(ieo. 1\'. c. I. Ihmiitt v. Till' Pnitfijiiit OfficcvK
of Jlir Miiii-.-'his (h-ilhiinir,-, 10 (^ B. 189.
Owing to a mistake in the crown othee, a rule
to return the writ of certiorari, and afterwards
a ride for an attachment, issued, although a
return had in fact lieeii tiled. The eonvictioji
was (juashed, liut more than six months having
thus cxi)iicd .since the conviction, the court were
asked to allow process to issue against the justice
for the illegal conviction as of a previous term,
liut the application was refu.sed. (^u;ere, whether
the six inniiths could he hehl to run only from
the time of (juashing the conviction. In n
Join, t!M,». 15. 197.
Hehl, in deference to former decisions of this
court, tiuit a school trustee who is sued for any
net done in his corporate capacity is entitled to
notice of action, and that the action must he
brought within six months. And that a school
trustee acting in the discharge of his duty as
such, is entitled to the protection of, and conies
within, the statute Ki Vict. e. 180, notwith-
standing he should have signed a warrant indi-
vidually instead of in his corporate capacity.
Siir;i V.' Miinilui it <il., 11 C. P. 1285.
Held, also, that a collector who committed a
trespass while acting under a warrant issued hy
jv eomiietcnt authority, was entitled to notice of
action, anil that the action should he brought
-within six months. //;.
C. c. 12(>, this was not an act committed, Init
a negligent omission. Jliirri-ioii v. liniiii •>n
g. B. ;w4. '
A Division Court hailifl" is entitled to notice
of action upon the statutory covenant, lor an
excessive seizure and sacrifice of plaintilfs
goods, must he hrought within six months ; ami
the defence may lie raised under the geiiLral
issue liy statute. I'litrmu v. J'lillini ,/ id 15,
C. P. 79.
In an action against apathmaster, it appealed
that the act complained of was done on tiie .'ith
Novemlier, IS74, and the action was comiiieiicxil
on tile ."ith May, KS7.">. Held, in time. CnmL-K
V. Wil/hiiii.-', :i\} Q. li. .i.-iO.
VI [. Ai:i:(-:'--.MrNi
TO Waivk
FlIAII).
TIIK StaIITK —
igainst a shcrifT for an escape
a capias, defendant pleaded.
To a declaration
from arrest under
that the action did not accrue within two years ;
that the plaintill did not declare in the cause in
•which the arrest was made within one year, and
ilid not prosecute the said suit : — Hehl, on de-
murrer, both picas bad. WUmoii v. Mnnru, 20
Q. B. 18.
A registrar being applied to by the plaiiitilF
for a certiKcate of the registries on a lot, gave
one in which he omitted to mention a mortgage
for .*(i()0, prior to that which the plaintiti' pur-
chased, 8U[ipiising it, from the certirieate, to be
a Hrst inciinibrance. In an action against the
n^gistrar for this omission in his ccrtiHcate : -
Held, that the registrar was not entitled to
notice of action, and that the six months limi-
tation clause did not apply, for thougli an
othcer within the meuuing ut tliu Aut C. 8. U.
Occlaratioii on a special agrccniciit, by which
plaintill sold to defendant a steam eiigiiii; fur
!:<700, alleging niiii-payment ; and on the cimi-
iiion counts. Sixth jilea, set-off on two proinirt-
siiry notes made by the plaintill', payable to !•'.
& W., and endorsed by tlicni to defendant, ami
for gnods sold and delivered, &c., claimiiii; a lial-
ancc from ]ilaiiititt'. Second reiilicatioii, Statute
of Limitations. Mipiitalile rejoinder, so far as
the replieatiiiii relates to the the two mitcs .-let
np in the plea : ♦^''•t on the (ith December, KSiy,
and befo!"' *^'..» sii.l, and before the notes were
liarred by the statute, the iilaintitf sued defen-
dant in the Queen's Bench for the same causes nf
action now sued for ; that defendant mi tliu 4tli
March, I8!)3, pleaded by way of set-otl tiicitiii
the same notes, which exceeded plaintill "scliiiiu,
and which were over due but not then lianiil,
and required the plaintitf to reply thereto: that
the plaintill did not reply and did nothing in tli
suit until October, ISliS, when said notes li:i
become barred by the statute, and tlieiciipuii th
plaintill discontinued said suit and coinniuni-uc
this action. And defendant avers that at tli
plaintilf's request he did not sign judgiiieut 1
noli pros, in said suit, as he could and would liav
done ; and it was then agreed that in cmisiiki
atioii that he would not sign judgment, liie sal
two notes should be allowed against jilaiiitilf
claim, and they were then mutually sct-ulf anil
allowed against it : that defendant, relying ni
such request and agreement, took im furtlicrstui
in the suit, or to recover his set-oil, liut allnwci
it to be so set-olf ai;anist the plaintill s claiiii
which was thereby fully paid and satistieil. \n<
defendant says that it is inequitable that the
plaintill should now be allowed to maintain tlii
action, and defeat defendant's set-olf by thu
statute. Surrejoinder, on equitable giimiiils
that defendant waived and forfeited liis lijilit
under the alleged agreement by giving the plain
tiff, before the discontinii.ance of the fni'ineiaiu
the commeneement of this action, to-wit, mi tlit
.SOtli Seiitember, 18(18, notice of liis int. ntimi t'
jirocced in the lirst action liy entering jiiiigiiient
of noil pros, for want of a replication, ami by
accepting his costs 1..* defence taxed on tile iiiain
tiff's rule to discontinue: Held, upon ili'iniir
rer : 1. That the agreement iiiijj(ht have hei'i
pleaded as an accord and satislactinn to tin
declaration ; but that defendant might neviithi
less rely on the set-olf, and set uji tlieaj;rociiiiiii
in answer to this statute ; 2. That the ii'j'iim'
21GS
n act committotl, liut
,,,.;.Ho» V. «'•-:/", -'>
f is -ntitU'*! to iii'ticL'
itory ovcimut. in.' ju,
at\uu i.ix i>i""ths ; uu.
«ed uu.lcr tho gcncv.
,,„ V. 7.'"""" '' "'■' '•'
pathmastuv, it avvcartMl
^ action vas coiuuR'UL.a
UcUl, in tiiiiu.
;!0.
•2WJ
LIMITATION OF ACTIONS AND SUITS.
2170
■A
U.M'l'-
•chl agreement, l.y.NvUicU
f,.u to tin- i"^ " , „ mi'.i
ite, tni- I , , ^ ^.^,ne causi;s "t
''^^S^UonthcW.
k^-^"'"'' Itbatine'ous.a.v-
.„.c then mutual h. ^^ _^
^^^'telt'tS-f-^'r'l
,,.,eenut ^ ^^j, ,,„t,UMVo.l
f ,,.au.st tht \ t„,i,a. AuA
^^^ '^ V; "'7t n u"tau.tla>
L^vl.eaUo^^olton ^^^ ^j^^.
La >lefon.\ant« H-^ ,, •„„!,..
L-aive.lanV t .. tl^^.Um-
ha-vet'nK'nttOp n .^^^^,,..„„,
iHContiuuauce tie ^ ^^^^^j^^,
',„to{t\ns=i'^t.o",t<' ^^^.„,„
,H,-,8, notice ot hi^ .^^^^^^
Ltaetionby*-'".; 7,, ,;lby
--'^'f^:S;-^'>^i''"•■
.t»..:.u^f^•"^^J|'^^ „...m .Wmm-
Lontinue: tl^ N ',,,ve>.a>u
L agreement m^ a ^, j,
aecor.l ami ^t"* . ,,t„,v.rtiH.;
Lthataefen.Untmt^^^
,et-ort, au.l Het u ,^,j,,,,„U.r
, statute ; 'i- ' "''" 1
shewed agooil answer to tlie replieatiou. Sem-
Me, that tlie rejoimler, without reference to tlie
agreement, woulil have heen suHieient if it liad
alleged that the jireseiit set-oil' was jilcaded with-
in a reasonable time for Iniiiging an action for
such set-otf after the termination of tlie liiat suit,
to wit, within one year therefrom; for that the
iirevioiis suit ended liy discontinuance was a
good answer to the statute, lint, Seml)le, also,
that without such averment it was bad, and that
tlie dates apiiearing on the record could not l>e
allowed to supply it. Held, also, tliat the re-
joinder was not a departure from the plea. Held,
also, that the surrejoinder was good, for the
(lufendant had lo-t his right to the costs, if they
couhl lie recovered only by signing judgment
which he hail agreed not to sign ; tliat the ter-
mination of the lirst action remitted lioth parties
ti) their original rights, and defeated the accord
and satisfaction between them ; but that the
defendant having broken the agreement, the re-
mission related back only to such rights as they
existed when the suit ended. Semlile, also, that
ill no way could the defendant by pleading avoid
the replication and rely niioii tile eipiity of the
statute, for that the agreement and its waiver
excluded that ground of defence. I'ariuiia v.
Vralih, 31 Q. li. 434.
.\. and K, being the owners in fee of certain
lanils, sold them to (.'., and in 1S.'{() executed
ciinveyances, but continued in possession as be-
Idi'f. in ISaO ]>., clainiiiii: to hoM a deed for
the accruing thereof, and that such cause of
action became extinguished iieiiding the former
aetimi. Hehl, bad as a departure. I'm-Mint v.
Vnthh, 34 Q. B. 136.
It was a condition of the policy that no action
or suit, either at law or in eipiity, siiould be
brought against defendants therein after the lapse
of one year from the loss, this being a condition
also prescribed by the 31! \'ict. c. 44, sec. 54,
(>., relating to mntnal tin insurance companies.
The plaintitl', suing on tliis policy after the e.v-
liiration of the year, declared on e<piital)lo
grounds, alleging in one count that ilcfendants
I prevented the plaintitl' from suing in time by an
agreement that if tlie plaintitl' would permit ami
give them time to examine his books, Ae., they
wonlil j)ay as should thereupon lie agrecil, pro-
vided the plaintiff' would refrain troni suing
(luring such examination, ami while negotiations
I should be peniliiig, and th:it in eonsideratioii
thereof defendants would waive tlic condition.
The second count allegeil that defendants pre-
vented plaintitl' from suing, by representing that
notwithstanding they had good defences to urge,
they would pay what tiiey should tiii<l to be
really due on an investigation of the plaintitl"s
, books and accounts, ttc, if the plaintilt' wouhl
j give them sutlieient time therefor, and would not
sue during such investigation. It was then
averred that sucii investigations and iiegoti^itions
with the plaintitl' continued until after the year,
when it was agreed that defeiidiuits shoiilil pay
the lands, e.xecuted by the heir-at law of (,'., then the plaintiff .S.'tOO in full, which tliey had not
ilead, got possession of the lands from ,\. anil
r>., under the belief that he was the grantee of
I'.'s heir-at-law. D. then conveyed the lands to
ilefeiidants, or to iiersons under whom they
daimed. These went into possession in 18.">0 or
IS")!, and continued in possession till l.StiS, when from insisting on the forfeiture
the real i.eiress of C. brought ejectment against CuikuIu Fnnmrs Miihin/ /«.<. r-
tlieni, who elaimed by possession. It ajuieared
that the deed executed by I), was a fraudulent
instrument not executed by t'.'s lieir-at law, but
liy some stranger : — Held, that the title of ('.
was barred by the statute. IkUlirji Id </ «./■. v.
UaUi- H ((/., 22 C. I'. 230.
paiu : — Held, that there was no eviileiiec to go
to a jury, either of the ugrceineiit alleged, or
that the defemlants prevented or v.aived the
performance of the condition, or of anything
which could in eipiity prevent tiie defendants
/Juris V. 'J'lii',
;!!» <.>. n. 452.
Declaration on an agreement to pay .s450 by a
promissory note ; breach, non-payment. Sixth
[ilea, set-od' on two notes made by plaintill"
ami endorsed to defendant. To this plea, plain-
tiff replied the Statute of Limitations. The
ilifeiiilant rejoined, in substance, to the second
Defendant aeipiired the legal title under a doeil
in Keeeinber, 1842, in the portion allotted to him
of the land in which the ilaintitr and defendant,
as also one M., had previously been jointly in-
terested ; and the strip of land in iiuestion in
this suit was erroneously included in this con-
veyance ; and the fact was known, but the con-
veyance was e.xeented notwithstanding. .Vliout
the same time, the plaintitl' and defendant exe-
cuted a document agreeing to leave this strip for
their mutual benelit, tlie plaintitl' to have the
Defendant had not actual pos-
tiinber thereon, lieleiiilant liaa not
reiiliciition to the seventh plea, that in the for- session of the strip, which was uncleared, but
imr suit the same subjects of demand ami set-otf there was no separation between it and the other
were in dispute; that the former suit was com- portion of the lot wliieii he did oeeupy under hi.s
eonveyance : — Held, that this docuineiit operated
to prevent the defendant from aeiiuiring a title
to this strip under the statute. Mml'iiil v. W'ttlkir,
15 Chy 155,
meiieed on the (ith December, I8l>2, and was
kept peniUng until the plaintiff on his own mere
iimtiiiu, discontinued it on the Sth ( )ctober, lSti8 ;
that when the plaintiff eomnieiieed this suit on
tlie iltli October, 18(i8, the statute had operated
against the set-off, and that defendant, on the
15th March, 18t)!(, and within a reasonable time,
t"wit, within one year, from the discontinuance
"i the fiirmer action, pleaded the said set-off in
tins action : — Held, that the rejoinder wjis good,
i'T that in this province a set-otl, on which the
'Icfciiiliuit may recover a balance, is as much
'ithiii the equity of the statute ;is an action
i'>rthe same demand would be. The plaintiff
jtsfl surrejoined ; 2. That the two notes were
MisiEi.LANKors Cases.
Semhle, that the court would not have inter-
fered in this case by inandamns had not the
prosecutor's remedy by suit prolialily been barreil
oy 1() Viet. c. !)!)
(;/' St. Amlrnu'x
0. p. 4G2.
sec. 10. I'l ijiitu i:r ri I. 'I'nisliC't
V. (In lit ]\'(.sti:ni Jiiiihrai/, 14
The plaintiff tiled his informatiun to forfeit
ilrawii and jiayable in the Province of Quebec, land sohl by lottery, contrary to the 12 (Jeo. II.
Mil hy the law there the cause of action there- 1 e. 28, more th ui five years after the sale eoni-
"0 liecauie extinguished after live years from plained of : — Held, too late, for the ease eanio
'. {
_1X1^
2171
LIS PENDENS.
21;
■\vitliiii tlie 31 Kliz. c. 3, by which he was limited
to oiiu yoiu'. Jfcir/iitrn v. Street, 21 Q. B.
498.
AVlicrc it appfiirs ui)om the record in a penal
action that it is bronglit too late, the defendant
Miay take advantage of tlie objection without
having siieuially pleaded it. Miirlmrn v. Street,
21 ().]',. 4!»S.
Hild, IJicliavds, ('. J., Wilson, J. , and Mowat,
Y. ('., diss., that a party aggrieved l)y an act of
a nninic'i)>al council, is not ))onnd tr) commence
his action within six months from the commit-
ting of the act complained of. 7/W;/(h.s v. T/ie
Citr/iorii/iiiii I if the I'liitetf CiiHtitien of II ti roll mid
Jiriire, 'A E. & A. 1(11).
An action for a penalty for not afH.ving stamps
to an instrument, under 27 & 28 Vict. c. 4, s. 5,
must, liy the .SI Kli/. c ."», ))e brought within a
year. No right of action vests in the planititt'
until tlie action is so lirougiit, and the defendant
therefore may take advantage of this latter sta-
tute under a plea of not guilty. The ilefendant
was held not precliided from such defence by
having marked in the margin of his plea the
statute 21 ,lac. I., c. 4, only. JLi.^oii (j. t. v.
Jlo.i.yop, 2<) (,). B. .-)0().
An application was made to vacate a pra'cipc
decree taken into the Master's office, and to
allow, instead of a disputing note, an answer to
be tiled setting up tlie Statute of Limitations.
The application was, lielil, to be projierly made
in ('hambcrs, and was granted, it lieing shewn
tiiat the note was tiled tlirough the mistake of a
solicitor ill supposing that the defence of the
statute was available under it. The statute
camiot be set up as a defence in this way, but
must be pleaded. Ciittdiiaeli v. (^n/iihart, 6 V.
H. 28. — (.'liy. t'hamlj -Holniested, Jie/eree.
It is a plain common law right to have the
free use of the air in its natural unpolluted state,
and an acciuicscence in its being pidluted for any
period siiort of twenty years will not bar that
right. To bar tlie riglit within a shorter period,
there must be sucli enc(mragenient or other act
by tile i)arty afterwards complaining, as to make
it a frauil in bim to object. Jimlenhiirsf v. Cuate,
(K'hy. l.S!».
In .Tanuary, 18()4, a non-l)orrowing member of
a building society died intestate. No one ad-
ministered to liis estate until .June 18()7. In
that interval his shares ran in arrear, and in
conseiiuence the society, in November, ISU"), de-
clared the shares forfeited. an<l carried the
amount tiiereof to the cretlit of the profit and
loss account. After the society had been wound
Uj), or been sU|iposed to have been wound up,
anil the assets distributed, letters of administra-
tion were obtained, and the administrator ai)plieil
to the society to be admitted as a member thvirc-
of, but was refused : — Held, 1. That the proceed-
ing of the society to f(U'feit the shares in the ab-
sence of a personal representative was illegal ;
that they could not <lo so any more than they
coulil proceed at law to enforce payment of the
calls ; 2. That the plaintiff, the administrator,
was entitled to relief, and that the lapse of time
between the attempted forfeiture of the shares
and the procuring letters of administration was
uoansA'erto the phuntitF's claim. Draper, C.
J., Hagarty, C J., Wilson, ./., amlCtvyuue, J.,
diss. (•7(w<( V. Hope, 16 Chy. 420.
An objection of the Statute of Limitatim
cannot be made by an appellant against tl
niastcrs's report, without having been taktn 1,
i fore the master. Brii/lmui v. iS'(/((7// is (i,
I 224.
I The court will not relieve a party against tl
! effect of one lapse of time in onlcr to cnah
him to set up another lai)se of time aj;;iin
I creditoi-s. Where, therefore, a party applied d
j leave to appeal after the time for appeal! ii' ,
! for giving notice thereof, had expired, in ,?|',|,
I to eualile him to set up the Statute <pf I.iinitatioi
against certain creditor's claims, the cumt iv
fused the a]>plication. Jiriijluui} v. Siiiill), ',W]i\
! Cliamb. 313. — Taylor, Iteferee, Mowat.
I Wlicre a judgment is successfully inipwula'
I on tlie ground of fraud and collusion lictwec
j the creditor and the executor of the delitdr. it
open to the parties interested in the estate ■
the deceased to set up the statute to tin- k-\a\\
' of the creditor, which the executor had oniittc
or neglected to plead. Jurilinev. Wihk/^ I'.tClix
017.
LIMITED PAKTNERSH J P
See Partneksiui'.
LIMITS.
,S'«'B.vii..
LINE FENCES.
See Fenx'ES.
LKJUI DATED D AM A( ;KS.
Siv Pkx.vi.ty liv C'oxTK.vcr.
LIS PENDENS.
The registrar was re(inireii to record a cui
catc of lis pendens atfccting "lot \o. lii, in
!)th concession of the township of Kiin, ainl
Nos. 14 and !."> in tlie 10th concession nt
same townsliip," which he refused to do, as
west halves of lots 14 and 1,5 liad lieeii laic!
into village lots, according to a plan likil in
office. On ai>))lication for a maudaiiius : IK
that so far as regarded the west halves he v
right, for by the ilegistry Act, 2!) Vict. v. ■2i
73, the certificate should shew the village
affected. Tiie point being new, and tlieicl
no difficulty in recoi ling the ccrtiticato ag ...
lot l(), the rule for a mandamus was disuliiirp
without costs. Ill re Tlioinimni nml Wikihi
q. B. 237.
In September, 18.').'), one (i. entered iiitn .-i 00
tract (which Wiis itCver registered) with onu .M
for the sale to him of a lot of land. On Oitoln'
1857, the plaintiffs recovered and rcgistercil
judgment against CJ ., and thereby acijuireil [ii
ority over M , on the lot sold liy Liui, ami
'im
•2172
Statute of Liiiiitntkms
ai.yeUaut uga.ust t\.,-
, having ^>''<:Valu"..-
:evc a party against tl..
time in ordov to ..,m\.\.
, lav^e of timo .g:uust
the time for m.t.a,ng"t
of lia.l expired, m <|i;.lfr
IL Statute of lAimtivtious
,,'s claims, the curt re-
if(./.-;-ws J>Unvat.
ic "successfully imjuNulKMl
) pAirrNKRSHir.
PAB-rNEKSll"'-
J>-K Fi:>'t'i'^^-
.Set Fkncks.
DATKD l)AMA(;l>.
■sM.rv v.v CuNTWU-r.
2173
LIVERY OF SEISIN.
2174
Lis i'KN'1>v:ns.
ISIareh, 18(51, tiled a Itill against (}., to enforce | On a bill tiled l)y a judgment creditor, with ti.
their juclgment ayaiiist the lot contracted to he ! fa. in hands of the slicritl", the court restrained
sold to >f., as wcdl as against other lands of (i., the defendants from selling, assigning,', or other-
to whicli bill the i)laintift8 (havhig no notice of ; wise disposing of a mortgage lield liyhini created
the contract) di.l not make M. a party, a certiti- by one 'I', in favour of one S., and by S. assigned
catc of lis pendens being however registered. In j to the defendant. For the purpose of obtaining
Marcli, 18(i'_', M. obtained from (J., under the i a lis pendens the plaintill was entitled to pro-
ioiitract, a conveyance of the hit, which he reg- ' ceed in e(iuity, notwitlistamliiig the Adininistra-
istcred in September, 18G'2, and the plaintitts tion ()f Justice Act. Corlinnn v. Fn ink I 'in, V.\
becoming aware thereof applied ex parte (m the i L. .1. N. f>. 91— (.'liy.
10th .)une, 1S()4, under the order of the illth i j^^ ^^^^^^^.^^ liowcver, this will not be the case,
„f .June, 18()1, for, .and «btamed, an "r.ler to i .^^ ,j,^,.;,,^, ^,j^. j.^^^ ^^,^^;,,,, j,,,^^.^.,. ^^..^^ ^,;^.^,, ^^, ^,^^
make M. a party in the Mtuster's otHce : — Held,
on ajipeal to the full court, (VanKoughnet, ('.,
diss. ), that the suit was not pending as a''ainst
M. i)rior to the date of the order to niaki; liim a
party : that therefore there was no suit pending
agaiiist him on the 18th May, 18(;i, and in coii-
scipicnct, that tlie lien created by the registra-
tion of the plaiiitiH's' judgment against tlie lot,
tliu subject of the contract, was gone, and' that
M. was not a necessary or proper party to the
suit, and tliat the order to make him
slidulil lie discharged. Jnmii
ay. 23.
Where accrtilicate of lis pendens is registered
under the statute, and the bill afterwards dis-
missed, it is not necessary to obtain an order
discharging the lis pendens from the registry,
Common Law <'ourts to grant a lis pendens. J I'.
i u\re.i to record a curti i-
I was rc.imri-'i.Y v, p; ,„ tlie 1
lens atTeetiug l"y,,-,.in audl»ts
I.-, iir the l""\. , to do, as the
l,.,,UiehheretusuU ^^^^., ,
i.tsUandb'iljv ,j^^_^^
I aeeovdu^g . .M ^,,,,^ ,U,U,
|Ueatu.n{oi.v'^;^t halves lu'V.^
Icgardc.l tue J ^, ,,4, J
L Registry A^*;;\l,, village H
late sV ,new audtUeivVeiid
Iv^^'^S^tTeerttticateagau.
^ reco. Inig \"; ,.as disclwvH
l^^;;::,'^:::!?^' '"■'"■'•^^
Ll85n.oue(^-tcredu.t.a^j
t;,«tverregiste d)^^^^^,,^^^^^^^^^^
IhimofalotofUui i^t,,,l|
lutitTsrecoYrey^^^^^b^^^^^^^
LIVHItV or SKISIX.
Tlie phiintill'. by indenture dated (Ith April,
1S.")4, did " le.ise let and to farm let," the land
in (luestion to defeiid.int uimn tlie terms that he
, sliould iiav all rates, levies, and assessments upon
a party ., • \ • ^ ■ ^ \i -.i 1
., .. ' 11 the saiii property, iiadosc the same with a good
y. (.ninluHi; 1 1 ^^^^^^^ ^^^^y ^,^^,^^^ -^^^^ ^,^^^^^^ j^^ .^ husbandlike nuvn-
ner, and not transfer without the lessiu-'s con-
sent ; and the plaintitl' for himself, his heirs and
assigns, did thereby rent unto the defendant (the
premises) at the rate of six pence ]ier acre per
annum, p.ayable half-yearly in advance. There
the regrstration of the decree dismissing the bill was no livery of seisin, nor any time mentioned,
but the defendant entered into possession: —
Held, that an estate at will only passeil. Wilmut
v. Llirill,,:,; 7 C. 1'. 407.
Possession is evidence of livery of seisin of
lauil ; and where there is evidence of possession
ac-.impanying and fidlowiiig a deed for upwards
if thirtj' years, seisin may well be presumed.
k'iiig sutiicient. iJciicr v. Cuifonl, 1 Chy.
Chamb. 22 ; 5 L. J. 67.— Spragge.
Where a decree on further dircctimis hail been
re<'istercd .against lands, and afterwards the
iiiu.'iiial decree was revei-sed on •■eliearing, Van
Kmighnet, C, held that the order reversing the
(iiii'inal decree destroj'ed the lien. The court
camiiit discharg/j the lis pendens on an applica- , Xolan v. Fox, 15 C 1'. .")(!.")
tioa t\.r that pmpose-the mode of getting rid j^ ^ ,^^.,,^ _,.^^^,,, ._,-^,, ^,,^_,^., ,j..,^_ ,,,,^, ^ ^
of It IS by dismissal o the bill. (.ml,„,n v. ^^J^^^ j^^^^^j ^^^ „ ^^ ^,, ,_^^,,, ,.^,,,,^^ ^,^^, ,„,,^ ,,,,^^
amlmn-:, -2 (by. ( hamb. i)3. i ,,^. ,y^, ^,„,^,,, ,,,,,,,,;,^ ,„,j;, ,^^.,, .j^.^.^,,^^^ :-Held,
Where a bill had Ijeen tiled and a lis iiendcns
rcrristered, but no otfice copy' served within the
twelve weeks aUowed for service, the bill was
ordered to be dismissed with costs. Siom r-
ritlr v. Kirr, 2 Chy. Cliamb. 154.— '\'anlvough-
iiet.
Ill a class .suit, in which a decree has been
iiwde, although the ]daintitl'sclaim hasbeenpaid,
the hill will not be dismissed nor a lis pendens
vacated, where other jici-soiis may be entitled to
tliu hcuetit 01 the decree, .and to retain the lis
iieiidoiis. Ai'nliii-ji v. Tlmrnton, (J I'. It. I'.tO. — ■
I'hv. Cliamb.. - Holniested, liifim.
that though under the authorities, it might, if
executed and livery of seisin given on the day
it bore date, be void ; yet if not executed or
livery of seisin not given until after the day ou
which it was to begin to operate, it woulil bo
good ; and Semble, the jury might iirojierly have
been asked, under the [icculiar facts of the case,
to presume one or both of these iiropositions in
favour of the plaintitl', the grantee under the
-Iced. //,.
A., by indenture, in bS'Jf!. in consider.ition of
the rents and covenants liy M . to lie paiil and
lierformeil, " granteil. demised, and to farm let
to M., his heirs and as-;igns, ' certain land, ha-
111
ir
Accrtilicate of lis pendens sh.mhlimt be issued '" '^ - "•"/'^■■^ "'" .■' -*; .^"•;<.. certain aim, na-
,n suit brought for alimony only. 1I7<,7. v. \ '«'>'^''',"' 'unto the said M his heirs and assigns.
17,;^, (i 1'. H. 208- -Chy. Cluimb. -Holniested, ['•""' ^^'^ '^i'^,"' ^''^' -,!^'t>' '•^'"■^"t. '"• '^!"1 ••""''g
if,\ ! the term ot •_'! ye.irs, yielding and paying,' yearly
'■'""'■ j during said term to M., his heirs .and assigns, 7.s.
Where the pureh:i.ser paid a deposit on etl'eet- ' Oil. There was a covcnai!t by M. to pay rent,
lug a jiurehase, which he afterwards rescinded in ; and by A. for ipiiet enjoyment during the term.
eoiiseijuence of a good title not having been | At the end of the term M. gave up the lease to
iiwilc out, and reeoyered judgment at law for the A., .saying he hail no further claim, but he was
Miiiiiiut of the deposit, which he was unable to allowed to continue in possession upon no detinito
realize under execution: —Held, notwithstanding' understanding, and defendant went in after him.
the innvisioim of the Administration of .Justice j Upon ejectment brouglit by the devisee of A. : —
.\et, that the pnrch.aser had a ri^ht to institute I Held, that without livery of seisin, the fee simple
proceedings in this court to enforce his lien, his ; granted in the; premises could not take etTeet,
oliject hciiig to obtain a lis pendens which he '■ and the habendum for twenty-one years wouhl
could nut obtain at law, in order to prevent the ! stand ; but a new trial w.as granted to deter-
veiulor disposing of his lands as he had of his j mine the fact of livei'N'. McJJoiialil v. McGillii,
Xooik Uiini-i V. Uriffiii, 24 Chy. 451. I 2(i Q. B. 458.
2175
LOST DOCUMENTS.
oir
17C
'' <
Seiiil)k', thnt the jury slumld not be directed
to iirosiinie livery of seisin, as they would be if
the tiossessiou had beeu held as on a claim of
absolute owiiershij). Ifi.
LlVKl! Y STABLE KEEPER.
The plaiiitill's, owiiinj^ aline of stages, entered
into a special agreement with defendant, an inu-
keejier, for the stabling and feed of their liorses.
Sonu' itisjiute arose as to the defendant's charges,
and defendant refnsed to let the jdaintill's remove
the liorses. The jdaintitl's then brought trover :
— Held, that dc^feiidant had no right of lien, as
the jilaintill's eui]doyed defendant as a livery-
stable keepei', and under a special agreement
which gave him no continuing riglit of possession.
Held, also, tliat a conversion was sutticiently
proved. Din, II it al. v. iJn/liij, 11 Q. H. ''J.
LOAX.S OF MONEY.
I. Invf.st.mknis -.S''< Invkstment UK Money.
As to the damages recoverable for breach of a
contract to advance money. See J/yih- v. O'ooili'r-
haul tt III., (J C. 1'. 121.
LOCAL MASTERS.
Local masters and deputy registrars of the i
court are not at lil)erty to practise in partner- ,
ship with solicitors practising 'n this court, al-
though they may not actually share in the
eniiduments of the suit. McLiau v. Crosx, 3
Chy. Chamb. 43L'.-('hy.
Held, that under 10 & 11 Viet. c. 4S, the cor
poration of I^ondon were the sole judges nf the
return and (pialitications of candidates Un sfat;
in the connnon council, and that their dccisioi
was final. Itc Bidhcdl, 5 Q. B. ()24.
Held, that a by-law of the cor]ior,iti(iii u
London, jiassed under the 10 & II \'ic.t. c. 4s
and proviiling that the owner of a billi.icl t,,),!,
shall pay flO per ainiuni for a license to kcci
the same, had not the etl'ect of abro'Mtiir' thi
duty imposed on billiard tables by the |ii(ivm. iii
act oO (leo. 111. c. (i, but nmst be cnnsidtrei
as a regulation superadded for the iiur|iii.<t's o'
the town of London. Clnnrh cj. t. v. /,''ir/,,ii-iU
(i t,>. 11. M'2.
Held, that an action of debt would lie inr tin
penalty, under oO (ieo. [If. e. (i, fur kciiijii' j
table without license, and that after verdirt' i'l
need not be averred that the defendant had iiol
paid the penalty. Ih.
The limits of the city of London were iIiI'ukm
by the proclamation setting it a])art ms ,i11 iIk
lands comprised within the old and new siii\ivi
of the town of London, togetlier w ith the laiiili
vd joining thereto, lying biitween the said siirvevi
and the river Thames, iiroducing tlie iKnthcrr
boundary line of the new survey until it inter
sects the north branch, and the eastern liomnlan
line until it intersects the east branch ipI' thi
river : — Hehl, that the city limits exteiifhd tf
the middle of the river ; and that a com ic ticiii
by a county magistrate for passing tlic full "ate
on the city side of the river was tiierefinf Cad
as the offence was out of his juri-sdiitimi /«
re McD'jiiuiiiili, .30 Q. B. 288.
Where two properties or municipalities ave
divided by a river or highway, the limit of each
is prima facie the centre of tlie river or mail. ///.
LONDON (TOWN OF.)
The corporation of Lon<lon, mider .3 Vict. c.
31, had the power to make a by law prohibiting
the sale of butchers' met within certain hours,
■except at the public market. PitirH v. Tin'
/'/•(■■<ii/i III mill Biiiiril iif I'lilki' uf Loudon, 2 t^.
B. r)43.
Quicre : does that act give the board of police
of Lonilon power to establi.sli and regulate a
market and apjxiint fees to be taken thereat.
Tliv Jiunnl vj J'ulirc of Loiiilon v. TtiViot, 3 y.
B. 31L
A., uprui being appointed clerk of the market
to the Ixiard of jMilice of London, entered into a
boinl for the payment of a certain snm of money
in compensation for the market tolls which the
board allowed him to receive. Being 8ue<l on
his Iwmd for the nonpayment of the money, he
pleaded "that he discovered after the execution
of the bond that the plaintill's had no legal right
to erect a market, or make by-laws resjieeting
fees to be taken thereat." He then averedthat
the plaintiffs h.ad no such authority, and that on
this account the bonil was void : Held, jdea Inul,
in not shewing that no market was erected or
existed, and in not averring that fees were not
iu fact received by hiui, Ih,
Kmiiani.I
LORD'S DAY.
Sf'c Sr.ND.w.
LOST DOCUMENTS.
L Bills or Note.s— .S"*'!' Bills of
AND Pko.MI.SSOKV NoTKS.
IL Deeds — .Sec Deed.
IIL Wills— *c Will.
IV. Evidence of — .SVr Evideni i:.
New Nisi Prins reconl made uji, the ini^'inl
having been destroyed by tire. H7/('A \. n\
chUim, Tay. .305.
Where an attorney's clerk had ln.st his artiilci
he was sworn in on an affidavit of tlie luss, aif
producing the usual certilicate of service In \
Lvrinu, M. T. 2 Vict.
Where the plaintiff was nonsuited in an aitiJ
upon a bond which had been fileil as an cxli '
at a previous trial, because he was iiiiaMe I
produce it, the nonsuit was set asiilc ami a iioi
trial granted on payment of costs, the Imiiil bl
ing been afterwards found. Miurhi-Aul v, M
Domjall, H. T. 2 Vict
•21TG
11 Vict. c. -tS, t\l« .nl-
j{ cau>li>liitoH Ini soivtrt
n„,l tliivt tlicii- aLiisiuii
5 Q. li- «-+•
„f the ct.n«>v:iti..u of
he »o & u vi't. ;■■ -^^
ueiM.f al.iUiavAtal.U-.
IJL'OllSC tn kufV
111
CllllS\ilrri!ll
)\V
IIU {'»■ !'■
ctVect of
Init must 1
l,\u.l for the \.uri;os
Chiiixh H- t.
,{
„{ aol)t wouhl lie f.>v tho
■ tor ki-i'i'in;:: a
ftur vi'rili'.t it
\efciiihuvt liH.l not
... ni. e. ti,
iviid that iv
liivt the
lAdU were (hliiuil
lOU, to
'*^ttLw"' =^-t .. .h tu.
'^'^'ttofi ana ,u.w sun-.ys
,et\.er Nvilh th. lan.is
i::^^ Sh.« the u„rtl>evn
!;Jw survey until n mt«.
:M":;Iuhe eastern l;ou>.W
t hraneli ot tin;
cxtenaeil to
,eet8 the eas^
:V^. river was theretuve h;i. ,
«t:t"riu. luns.lu.tion, i.
) Q. U. -288.
operties or uuuueivalitus avo
-;S^^'nveror,.oa,W.
.01
Sec
SVNl'AV.
n- DOCUMKNTS.
'uoMiss.'UV Nu"--'
. Wux.
U77
LUNATIC.
17S
K V'.Mll^'-'''"'
An arbitrator havin<^ failed, owing to the loss | to these Hues. Suhseiniently, a snrveyor was
t the pajiers in the cause, t() make his award eniployetl hy i,'overnnient to run the concessions
T-IAI)IM
ttitiiin tlie time limited, a judge extended the
time under C 1* P. Act c. 22, s. 172. ./nhii-s/on
V. Aii'jllii, 5'P. R. (i2.— C. h. Chaml).— Mor-
rison.
Action by the plaintitl', administrator of M.,
liiiiiiist defendant, on his covenant in a I'cgistered
iiiiiitgage to pay M. the amount due thereon.
I'loa, on eijuitable grounds, in substance, tliat i,e adopted us the
the iilaiutitt' told defendant before the in.stalment . Jfarrhinii, S ('. P.
5ueil for fell <lue, that he couMiiot find the niort- i ('ronimi, 'J C. P. it.
;;ai!L', anl defendant then informetl him tliat he i
iviiiild be prepared to pay when it fell due ; tliat
when he received notice of this action heuotitied i
the plaintitf's attorneys that he was prepared to |
i(iV (111 production of tin' duplicate copy of the I
mortgage, which was liel<l by M., or on proof of
the loss ; and that he was and is so prejiared ;
'mit plaintiff refused to shew said copy or furnish
jiiv \ii'oof of tlie los.-i. The plea also averred
thiit testator had made a will, and appoiuteil eer-
tiiiilii'i'soiis executors, who liad possession of the
will ; and the defendant sulimitted that he was
t'ltitled to such duplicate or proof of loss, and
.illiigeil that he was prepared to p;iy or deposit
ijieiiioiiey as the court should direct, to be pai<l
,ivev toiilaintiff oil such production or proof : —
Htlil. pica bad, for it must lie assumed that the
;i.'iitgai;e was recorded at length ; no assignment
t'.tlicr directly or by deposit was averred ; and
vjiikr the Registry Act defendant would be
iiilly protected on payment of the mortgage and
^•.Ml•(ling the discliarge ; and the .lUeged will
»;i«iiiit said to be valid or existing. Muranlii/
V. Butil', 2.j C. P. 231).
Attor the loss of a mortgage deed the mortga-
.iir otl'ered to pay the overdue interest on an
jiilavit being produced that the mortgagee had
jit [larted with the mortgage. The athdavit
I ws jirdduced aeciu'dingly, but the mortgagor did
I iiituwke the payment, and a bill of fureclosure
u- tiled in res[)eet of this and subsecjuent de-
iaults;- Held, that the jdaintill's must bear the
tX|H;n8e of jiroof of loss, and the expense of the
I ji'ltmiiity bond, but were entitled to the other
1 ii'tts of the suit. MiDijiialil \. Hiiiii-, 1.") Chy.
initted in the first survey, viz., 1st and 2nd,
3ril and 4th, 5th and (itli concessions. Me diil
so ; Imt instead of running tliem parallel to, or
divergent, as the lines formerly surveyed, he ran
tliem in straight lines, thus cutting ott' jjart of
the rear of the northerly concessions and adding
them to the front of the southerly concessions :
Held, that the last mentioned survey could Hot
ivenimg one. K'l/ii/
173 ; alhrined )>y Jinili-
LoWElt (.'AXADA.
V- (,>IEIlKi'.
■I
T.
11.
LU(i(iAC4K.
V OF IXNKF.KI'Kli— .SVc TWKRK.PER.
LlAHII.rrV OK ItAII.WAV CoMl-AMKS Sf.ii
PiAINWAVS AND KaII.WAV CoMI'AMKS.
LUMBER.
.S'"- TiMllKR.
I.
r.rxATic.
Commission axu t'oMMirTKK.
1. A/iii/ir(itlit)ij(ir, 2178.
2. Otliii- C</.<r.v, 217!>.
11.
AlTOINT.MKN r OF (iCAHKTAV, 2170.
Til.
CoNTHAcrs AM) l>i:Ar.TN(is WITH, 2180.
IV.
Estate of, 2183.
V.
Mis(i:i,i.ANKors Casks, 2184.
VI.
SKt'fKiTV FOR Costs iiv NF.xi' Fkiend —
iSix Cosrs.
Thi; jiirisilictioii of eijuity in the ease of lost
I Viitls exists also in the eas^e of bonds which have
jlictii ik'stroyeil. T/ie Cnunlij of Fruiitcntic v.
h/"^«, 17 Ohy. (!4r).
Lis reeor«
,\ made "l
lestroye*
\ by ti>'
WInl'-
(ivwiiiiu
V. 'IN-'
LOTTERV.
•SVc (lAMIXU.
S'!<' C. S. U. C. <\ I .', ... „'/, ,./ .v.'r/.
I. Commission and Committee.
1. Aji/ilirutiDii for.
The judge in chambers granted an application
V commission de lunatico iiupiireiido, the
I's of .hine, 18.")3, giving to a judge in cham-
act ill such a matter. Ke
nrney
;krk had lost Ws;utuV!^B L,,L-(;HBOROU(iH, (TOWNSHIP OF.)
In on aH
athdavit
i,f the I
IrtSU
I2 Vict-
x\ certilic
,^tc of scvvicu.
ill the tirst government survej^ of a township
iLiiililiorough,) the lines between alternate con-
laintiffwasnoi
,u8uitedi"!">
[hieh had
1 trial
iii'tim
hibl
•l,eeu hkdasancx
- v8 iia;i'>''^
le aivl A W
because he
for
onl
bers authority to
I Stiiiirt, 4 Chy. 44.
I On an applicati<ui in lunacy, the court ordered
I the sheritr to einpaimel a jury for the then next
I sittings of the court. The matter was not pro-
j eeeded with until the sittings succeeding the
j next ; and the matter then coming on : — Held,
I that tlie panel was not properly ctmstituteil ; that
I the sheriff's authority to sunnnoii a jury was eon-
, fined to the first sittings after the date ot the
onler. Jii re McXiil'i/, 13 Chy. 4()3.
no'
In pay
;;9uitwassetasu
IhiikIM
Hill, ".-- tiie HiiKliui';
mento cos . .^jf(
rwari
la foum
l_ .l/nir/i'ii''
2 Vict.
ii'iiij only, as the 2ud and 3rd, 4th and .")tli,
kand ith, had been run and staked out, num-
lering from south to north. Tliese lines were
W straight, but curved or bended southwaril
1 the centre of the township. It appeared,
lou^hiiot very satisfactorily) that several per- „ „
k liail, uiider government, settled aceoriting \ inijuisition under the former practice
137
Semble, an alleged Innatic should receive the
same notice of a trial before the court as of ail
lb.
217'J
LUNATIC.
m
I. *-
ftl'l-
w
H
iiillif'
I 1
All aiijilifivtiiiii to <locliire ii jiorsoii u luiiiitic
witluiut tilt! ijxpt'iisu <it' a CDiiuiiiMsioii imiHt l)u
Hii|)|i(irtuil l>y iUii(liivit!4 of iiiorc than oiu; iiieilic:il
iiinii. Si'iulilo, !il»o, tliiit iiotico of the iiiiplifii-
tioii shmihl lio given to thu hiiiiitic ; hut tliat it
will 111! iUmim'Iisl'iI witii wiiert' scrvicu on vlie
liiiLitic Would ho (hiiigcrous to him. The litnuhia
of th(! j)ro])oxu(l coiniiiittt'u must lie shewn on
iilh.lavit. /ii /•'■ /',i/'n,i, 1 Chy. C'haiiili. I'l-J.
Siiniu'gi!. See, also, Ji'i' F/( nniiiiii/. Hi L. .1. X.
S. 1!»7 -Chy. Chamli. I'l-oiiilfoot.
Itefore i,'i'anting an onler ileelariiig a jiefsoii a
lunatie, he must lie seiveil with uotiee of the
aiiiiliiatimi, ami any eonnsel, or other (lersoii he
may ilesire to sec in relation t<i the matter, must
lie allowed access to him. /ii ri Mil/ri; I Chy.
Chaml). •_'15.--- .Sjiragye.
As to the evidence ref(uireil to ilisjiense with
such service as dangerous to the lunatic or use-
less. See /;« yiiriiKiii, •_' Ciiv. Chamli. :{!l().
Taylor. S,, ;■>■/, iry ; ll< M,Ui, -j'chy. Chaml). 4-_>!l.
— i'ayhir, Secnlari/.
Ali|ilicati(iiis for a commission should he dis-
])osed of hi'fore one anil the same judge. /// /'(■
Millie, I Cl;y. Chamh. \'M. A'anKongluiet.
in. <'oNrii.\( IS AM) Dkai.inos
\v nil.
2. 0//iir CiiM'.-^.
'i'his cour., in a inoiiei' case, will, upon jieti-
tioii, i|Uasli a commission of lunacy, and the iii-
iiuisition taken under it, without imtting the
iiarty to the expense and delay of a traverse ;
liut in such a case, where the alleged lunatic had
atl'orded groiuids for the ajiplication against him,
the court, while (|iiashiiig the iiiifuisitioii, refused
to charge the jiartv aiiplyiiig for the commission
with ciists. /.'- Jii/iii, l\ Chy. ir>3.
The recoi'iiizanee of the eoniinittee, or of a re-
ceiver, will not lie deemed siitlicieiit security
under the statute. Ji'< W'dn/, "J Chy. Chaml).
188. — Taylor, .Sccnliu'!/.
A person whom it was sought to have declared
a lunatic was shewn to he in a stat" of mind de-
scrihed as ".senile imheeility " : -Held, that he
might properly he ileclared a lunatic under C. S.
V. C. c. 1-J, ss. -M, :{•_', aiul Xi. AV A'-//,/, (I 1'. It.
220. -Chy. Chaml). Spragge.
.See, also, IV., p. 2183.
II. Ai"PoiN'nii:.ST of (iiwuDrAN.
In moving to have a guardian ad litem ap-
pointed to a person of unsound mind, it must he
shewn that he has not heen so found hy iiuiuisii-
tion. Critii'/ortl v. Jiin/sitl/, 1 Chy. Chamh. 70.
—Spragge.
On an application to cappoint a guardian ad
litem to a person alleged to be of unsound mind,
not so found hy imjuisitiou, it is not sutiieient
evidence of the lunacy that deponents swear
that the j^Mirsou is of unsound mind, or that
they believe him to be so ; sueh facts should
1>e shewn, that the court may judge for itself.
MiJiitj/ir V. K'uiijuhy, 1 Chy. Chanib. 281. —
Spragge.
It must also be shewn that the proposed guar-
dian has no interest uuntlieting with tliat ut the
lunatie. Hi.
In this case Sullivan, .!., refused to .set a.sic
the execution issued upon a cognovit, either f
the ''iciunil of insanity of the defeiKl.iiit, nr
, fraud <iii the part of the plaintilK /'ii/,'f<iii
Si/ii!rt:'< <t III., 1 C. L. Chaml). 2;U.
Action for taking goods. Second plea : :iv.i,\ i
as liailid's of \V. H. for rent due hy n|„. \\
H., the goods lieiiig on the clemised pivmi^y
Seciiiiil replication thereto- that the snid W. }
after the demise, hy deeil hearing il.it ■ .'Kii
Octoher, KS(i!), granted to the jilaintill in ;
the laiiil liientioiie<l in the plea, wheiihy tl
plaintill' hecamc entitled to the lent Ihpin \\
Ii., and W. H., at the s.iid time wlii-n, ,\;i;
: had no interest in the lands. Third icplic
j tion : that on the 7tli of May, lS7(). the ti-
[ ant by deed released to the plaintill' all his estii
in the land, aiul the hnidlord, in consideiatic
thereof, leleiit-ed the tenant from theiiutsat
covenants. Third plea : Avowry and ecii'n
I zaiicc umlcr a distress for rent <lue iipmi a^d
I mise from defen<laiit A. II. to W, 15. .><ec:iii
I replication : that before the demise one W. 1
j was seized in fee of the land, and l)y deed, dati.
I .'JOtli October, 18()!t, granted it to the pl'iiiiitil
who entered and took possession, and licM jt j
I owner in fee at the time of the distress. Tl;
I defendants icjoined to each of the almv leij]
cations, that at the time of making tile alhiif
deed W. il. was of niisouiicl mind, and iiuap:
! ble of executing and understanding the same, ,i
the |ilaiiititl then well knew : - Held, >;ii(i(l, fc
that the defendants were entitled to set ini sue
j defence. Ilmiininl v. 7'/iiii/,i r it n/ ;',\ ii 1
: 427.
! The plaintill', on the 4tli of April, IS(I4, iiimt
gaged land to L., who covenanted tlieivliy i
(piiet enjoyment liy the plaiiititf until .JLlaiilJ
I To an action against J,.'s administrator mi tl.
covenant, alleging an eviction by persiiii> ,•
ing under 1... defendant [ilea<led tli.it 1..
veyeil the land to the plaintill' on the Itlst
March, KS(i4, which was the plaintilF'smilvt
to the land ; that the mortgage sued mi \V,is :
secure the purchase money, and was e\eiiit<
immediately after the deed, and as a part nf i
I same transaction : that the plaiiitifl' by the
I gage covenanted that he Mas seised in fe
had good right to convey ; and that tin,' i viit
eomplained of was an action of ejectnient Iuhul'
by the lit'irs of L., on the grouiicl that I,. wa>
unsound mind when he executed the ileed
31st of March, 18()4, which was pmved at
trial, and the jury thereupon found fur the lidi
— Held, that the jilea was bad ; for the avu
j aiice of the deed for insanity did not iiiiessaii
j involve the avoidance of the mortgage ; imri
the estoppel apiilicable to the deed extend t"
mortgage ; that defendant should have pliaii
I,, 's insanity directly to the mortgage if lie wish
to test its validity ; and moreover the [laitii-s lit
were not the same as in the ejeetineiit suit, ii
was it certain from the record in ejectmoiit tli
the recovery therein was on the gnmnd alla't
Ecclin V. Lowri/, 32 ^i. B. 035.
In this case a mortgage given in 184S, I'V
mortgagor who died in 18or>, was iiiipeaeliiil
the ground of insanity : — Held, that a nitim
act (the giving of the mortgage) being jiniveil
testiuK ny not impeached to have been ildiic ii
rational niauuer, and a security given fur a va
•tit'
Jlst>
(IS WITH.
;m'aougu..vit .itlui...
. ,,UiutilY. /'.-'M-./. \
\uunl.. -i'.U.
Is Sec<mi\ \>le;v- ■>^""
■„,: i-eiit .biii i;y """.
,„ the .Icm.HcA v>-';>;--
■eto- t\uat.osaj.\ \. .
'^' t\.e l.liUutilV in K.
W.
tUo
tu of M;>y.
ti.tho\il
. \;Ul>UoVa, 111
"tiiiaut from
Avowry
,,l to
„ the I'K'iv,
tk,l to t\ic
sai.l tiim^ wl"''. >^ ■•
ISTO. thu til:
Aiu'iitilV iill US'* *;*tat.
(.•iin^i'li-'i'i*^'""-
the vciits iiU'l
„,,.. . Av..«.y :ni.l cujn
„s8 'for vent .l"c ui'"" •' ''-
T \ H. toW. u. >^r""
'Sebu.a.auai,ya-.a
^ ^" '''.f UKlkiUg the- ;llV.-t
uu.l mhuU ;uia ""-^'V'-
^taiiaiiig tlio s,liK'. a-^
1 sll.A:
H.
.lat.
i;i
,c time
of uiis<
iii.\ iiiiaoi-
xvcll know
'.*'>, ^^vluiiui'^tnitniMmtla-
'": 'viotio,ibyvrs''"r^'^'"""'
aoU'iic\ivut i'
leii.lc.\ tli;xt 1
t\ic l-laintitV .m
to
|\iit\i was
t\H' I'
, the :u*t..t|
laiutitf^ only title
t..;v"C SlU'i
xt tliu uiongagi. .
....vii.'V. alio
I UU
liiase
lev
money
t\ie
t\iat
L\'that be ^v^l'*,
was esi.'
art
;»tv
i.t tW.
leeil, ana as a \
UicVlamtitVbyt t-
seisea in ti'f :
I'l
It,, convey ; a
an action t
.feiectnienti-roujitj
tlie giouii'
,\ Uiat 1.. w
vUen V
ex
ecntea tlie
\8lv
In-y
4, ^vlncU was yi^
•a at tli(
tlievenl.on ♦»'""'
I foi- the Ik-U;
21S1
LUNATIC.
218:^
lie I'lea
was
baa ; toi- tlK'
\ for insanity
laanee
(\ia not \
..,f the mortgage
i;tly
iiiir I
I to til
iilieaA
to tlie mortga:
if lie W1>1
as
ity '
lime
Ifrom
lliereiu
nd moreover
in tlie ejee
the va''"^: ■'';■
tiueiit
il'ritlo:i, uml.'r no siispic.'ioii of unfair- I Hehl, that mere physical weaknesH, however
knowlcilKe l>y the mortgagees of tlie ' great, witlioiit jiroof of mental inra(i,i(ity, is nut
the reeora in e
jcctiU'
was
on the gr
DllIU'
suit, 11'
lilt thi
I alK'g-^'
•y-
:« Q
K. t)35.
mortgage >iv
en n>
1848. 1'V
I aiee
wii8 niil«:'*
insanity
i,f the luovtgag'
i inv
^er,
Heia, that
■A r:
jheiiigl'f'
Ume
tfr^sXV-"-'
l(lt) e:i:i
iiess o
alleged insanity, the transaction could not lie
n[iset liy gL'neral evidence of insane delusions,
ex[ii. ssimis, and conduct ranging over a mnnher
lit years, Imt none of it hearing on the time w hen
the "iort;4ig>! was made, or in any way ainiroach-
ing tli(^ innHMched <l(.'aliiig; and the jury on such
evi<lence having found the mortgage void, and
RiKlered a vcrdii't '-; 'he iilaintill, a nonsuit was
ordered, i ■niii/ilir/l it nf. v. ///'//, -'•-' ('. 1'. ">2t).
The fact that a mortgagor at the time of exe-
cuting th'' mortgage was insane is no ground for
setting it aside, if the mortgagees dealt with him
,^iia advjinced tlieir money on the mcrtgagc in
jfiMid faitii. and ivithout knowledge of his in-
sanity : Meld, ill this ease, allirming the judg-
ment hidow, that there was no evidence of such
knowledge, and that a nonsuit, thcretore, was
imiiierly entered. Siiragge, ("., Morrison, .1.,
ami Stion,' and IJlaku, \'. ('(',, were <if (H)inion
that the cvid'jnce, set out in the ease, was, and
Dfiilier, <'..!. of .Viijical, IJieliards, t'. .1., and
(i.ilt, •'., that it was not. sutliciellt to go to the
jury as to the insanity of the mortgagor at the
time of the executioii of the mortgage. Cdiiip-
l..lly. Hill, -S.i C. 1'. 47;!, in Appeal.
IJefoie the court will compel a purchaser to
aoct'lit a title, it must he shewn that the title is
rcasiinal'ly clear ainl marketahlc, without ilotiht
aitn the evidence of it. \'. here, therefore, the
iWeil to the vendor was executed on tin; I4th of
Fi'liniary, I.S.'il, and in Decemher of that year
aciimnii^sion of lunacy was issueil against the
grantor in that deed, under which it w.is found
that lie was insane, and had liecn so from the
iDiiiitli of Fchruary or March previous, the court
reiilsjd to enforce the contract. Fnnni.'i v. SI.
On-ii'iiii', I! Chy. '>3<>.
Wlkie the lunacy of the previous owner of
tk estate was relied on as an ohjection to the
titlo, and the vendor alleged tliaf if such were
the fact it was shewn that he had purchased
iiirly, and without notice of the lunacy, as a
wnima for enforcing the contract ; still, as the
iKt that tiic vendiu- had piircha.sed without such
Mticf was one which from its nature was inca-
paUc tif lu'oof, iind notice on some future occii-
Miiiiglit ho clearly shewn, the court allowed
the (ilijection, and dismissed the vendor's hdl
with costs. //'.
Y. lioiiig the owner of valuahle lands, became
inlimi in mind. He believed that he couhl cou-
titiltlic elements, ami asserted power in himself
toi«all from death, and in various other ways,
iotscvcral years previous to his death, constantly
I'ucwvA mental infirmity. While in this state
ins t'amily, by an arrangement between them,
mtctiil into possession of the real estate, and
Kverally Worked it and enjoyed its profits. W.
ttiU'., V.'s children, and M., his wife, obtiiined
irijm liiiu conveyances to them respectively of all
fe real estate, which were executed in presence
«f Ml attorney, and there was some evidence of
iniiiiiey coiisiileration having been paiil to Y. for
Hkbi. It was not shewn conclusively that these
Miveyauces were exeuutetl in a lueid interval.
iT. having died intestate, ou a bill by the heir of
'., one of Y.'s children, these eon veyances were
asiilf as fraudulent, with costs, aiul W., 1*.,
il M. were ordered to accouut for rents and
its, Youiiij V. Yoitwj, 10 Chy. 3G5.
sulhcient to rentier invalid an acknowledgment
of delit by a testator, t'lmn v. L'uk-i, 1 1 t'hy. '2o.
The father of 1'. and.I. died cluring the infancy
of J., leaving to them by his will KM) acres of
land. After they .attained iiiajoiity, t'lis land
was, by deed, e(iiially partitioned lietwjen them.
,1. was of weak intellect, without knowledge of
land or money, and tinalile to read or write. P.
afterwards obtained from .). a conveyance of his
.")0 acres, and executed a bond in his favour,
charging these .")() acres w ith the payment of €.">(•
[ler annum during .l.'s life. I' then mortg.agcil
the 100 acres, and (ait.iincd from .1. a release of
the annuity bond, whieh was executed in pre-
sence of the solicitor of the mortgagees, without
any good considcr.itioii therefor. On a pet'tioii
tiled to have .l.'s lunacy ilcclared, the evidence
was taken in presence of the parties so interested
in tliii land. .). was declared a lunatic, but, as no
notice to the nioi'tgagces or their solicitor of his
imbecility when the mortgage was c.vecutcil was
proved, without prijudicc to the mortgage, hut
allowing the committee of the luiiati,^ to impeach
it by bill. Jii n MrShn-nj, 10 '..'hy. ;}!)0.
To avoid a transaction on the ground of lunacy,
it is not necessary to shew that the lunacy was
connected with or led to it. lUit to avoid a
sale for value by a lunatic, it may he necessary
to establish that the purchaser was aware of the
seller's mental condition. JJcD'niald v. Mr-
Duitidd, 14 Chy. ol.").
A vendor was insane, but not on all subjects ;
and, aj.art from his delnsiouN, a stranger might
not perceive his insanity. In the negotiation
for a sale of land, he said to the purchaser that
he was bewitched, which, it was shewn, was
one of his ilelusions ; — Held, reversing the decree
below, 14 Chy. r)4."), that this was not sutHcient
to atl'ect the vendee with notice of the vendor's
condition. S. C, Hi Chy. .S7, in Appeal.
A. received .'?1,2(K) belonging to his son-in-law,
li., and invested it with other money of A.s
own in the purchase of a farm, which cost
t'l5,'2tM). 1!. with his f.miily went into possession
of the farm, and A., the father-in law, by his
will devised the farm to K.'s wife and son joint-
ly for the life of the wife, with remainder to the
son in fee, subject to the payment <if S'200 to a
daughter of \l., and of H!liOO to another person.
It was assumed in the cause that I!, was at the
time of the purclnuse and thenceforward of un-
s<mnd mind and unable to give a valid assent to
the transaction; and the court held that on that
assumption he w.as entitled to the SI, 200 as
against A. 'a estate, and that the devise to his
wife and son were no satisfaction of the claim ;
and also that he was probably entitled to a
charge on the land for the debt. But the court
directed cniiuiriea whether R. was at the tlate of
the transaction of mental capacity to assent tf»
the purchase ; and if so, whether he ditl assent
thereto ; also, emiuiry ivs to the occupation of
the laud by H. and his family before the death
of A., and the value of such occupation. Good-
J'ilhw V. RolH'rtsim, 18 Chy. 57'2.
The power to appoint a guanlian is unaffected
by 34 Vict e. 18 s. 15. McDonald v. Binrd,
13 L. J. N. «. 197.— Chy. Chamb.— Stephens,
liffcrvv.
M
21 S3
LUNATIC.
•2U
TV, Ehtate ok.
Till' court in liimml to tiiko imtico that the Tiii-
luMiiil Alt, II (iiMi. IV. iin.l I Will. IV. c. tiO,
i'iml)li's liuuls ill thin jiniviiicu, held in tnift l>y ii
Iiert«()U of uiiMiiiiiiil niiiiil, to lie I'oiiveyeil liy n
a coiiiinittee uiiiiointi'tl liy the High Court of
i'hiini'ery in Kngliiliil. Thiiniimiii v. Hi limit,
•11 V. v. -MX
M'lieii the estate of a person who has been
found a lunatiu is small, the court will coinliinc
in one reference to the master all the usual en-
cjuiries, although the several olijects are in Kiig-
land the sulijects of separate references. //(
D'Kjiinii, 2 t'hy. (\11.
A special act, passed in Upper Canada in IS'JT,
authorized a coniiiiission to i.ssue to en(juire into
the lunacy of one I'. V. ; and, if he sliould lie
found a lunatic, the act directed a committee of
his estate to lie appointed, and authori/ed such
oommitteu to sell Iiis goods am' iands, and to in-
vest the proceeds in liank stock <ir real securities ;
and enacted that whatever remained of such
investments at the lunatic's death should lie
distriliuted among his legal representatives ac-
cording to law : - Hehl, that such residue was
personal estate, and was to lie distriliuted among
the next of kin. Cuirkr v. liiiltmi, II Chy. 4l(i.
One of several heirs of intest.ate being lunatic,
an act of parliament was iirocured, authorizing
the sale of intestate's lands, and the investment
of the lunatic's share in government securities
or mortgages, for tlielienelit of the lunatic "and
liis rejiresentatives. " 'J"ho lunatiu afterwards
died, and in a proceeding to distriliute the share
of the lunatic, it wiis- -Hehl, that this share, for
the purposes of distribution, retained the char-
acter of realty, and was to be divided between
his real representatives and not liis next of kin.
< (inijihill V. Ciiiiijihi/I, I!) Chy. '154.
Although the general rule of the court is, that
no course will be taken that will prejudicially
atl'ect the interests or the comf<irt of a hnuitic,
even for the benetit of creditors ; still the court
will assist creditoi-s where that can be done with-
out jirejiidice to the lunatic. And where the
court, by its orders, has induced creditors to
prove their debts in this court and thus pre-
vented them from proceeding at law, (^ua-re,
whether the court is not bound to aft'ord them
relief, even to the prejudice of the lunatic's
estate. Jii ir Sliiuv, 14 Chy. ivlA.
In June, 18(i4, the c<innnittee <if a lunatic's
estate applied for and obtained an order for the
sale of lands for the payment of debts reiMirted
due by the lunatic ; but the connnittee took no
action whatever under the order, and in 18(i8,
after nearly four years, certain of the creditors
applied for the conduct of the order directing
the sale of the lands ; and the court, under the
circumstances, made the order, lli.
The coniniittee h.-tving neglected to collect
rent of a tenant whom he found in possession of
a portion of the est.ate, wiis charged with the
amount thereof on passing his accounts. In n-
Shrnr, 15 Cliy. (519.
The committee expended more money in
making surveys and i'oa<l8 — with a view to a
sale of a portion of the estate — than the court
had authorized, and which excess was occasioned
by the failure of a neighbouring proprietor, who
had agreed to contribute towards such expeudi-
|.a,
fill
let.
ture. On a]ipe;d from the master tlir rmi
directed such excess to be alloweil hini lin
iiig his accounts. I h.
The jiowcrs, duties, and liabilities of ,i
niittee of a lunatic's estate considered and
on, //;.
Where the heirs at law or next of kin ,,f
lunatic are u'liknown, or reside at a distiun c hi
service on them would be attemUiI wjtii ',f^
expense, the court may disjiense wi h servTe
notice on them of a sale of the real estate m' tl
lunatic. /.V M<i;,iit/i, 1 Chy. Clijiinb. 4;{,i.
Taylor, Sunlnri/.
The co\irtwill exercise a wide diseretioii as
the disposition of lunatics' estate ; and « hen
appears to lie necessary, will ordi-r its ^:dl■ ai
disiiosition, and authorize the conniiittei td n
leet rents, iVc. J{<- Kiiiaiii, '1 Chy, Cliandi. 4;i
— Taylor, Secirldri/.
On an ajiplication by the bursar of tlie I'r
vincial lunatic asylum for moneys in n,\\
belonging to a lunatic party in a suit, in wlij,
his pro[icrty had been sold" :— HcM, tliat siu
ap]ilication was not autlKirized by tlie statiiti
C. S. U. C. o. 71. J/iin V. J/. /■/(, :( {'1,
Cluunb. (i2. —Taylor, Sirnfitr;/.
The control of a court ceases with tlir ilc^ii
of the lunatic, and an order for the distiilnitii
of a lunatic's estate will ni>t be made uniler ii|-i
ceedings in lunacy. Under such cireiiinst.iiKi
the committee took, under autlioritv nf tl
court, proceedings for the administration of tl
estate by apjilying for an adiiiiiiistration (ude
which was granted, the proceedings luin;; iliie^
ed to be as inexiiensive as possilile. /.V Hi-',
Hii'jer, S Chy. Cluunb. 2!»0. —Taylor, ,N. <,■,/,!,•
V. MiscKi.i.ANEovs Cases.
In \S2'1, A., a maniac, conveyed Liml tn I
who then entered into postiession. A. ilied
\S'l\i. C., his elilest son aiul lieir, lieeaiiie
age ni 18l".». He died in !)>•_".», and liis l,i,,t|l
and heir, ]>., (the lessor of the plaiiitill), IkiiuI
of age in 1831, and brought his ejcetiiientai.'iiii|
B., on the ground that his father was iidii cii
pos at the time of his executing the ileeill
IH'1'1. I>. brought his action more than tl
years after the lunatic died, and after lie ImnJ
came of age, ami more tiian live years aftir J
statute 4 Will. IV. c. 1 : -Held, that I"., iiiij
theso facts, was liarred from recovery liv i
.Statute of Limitations ; and held, alsn, tlat|
could not be considered in posse;,, i.m as the ;
vant or bailiff of the lunatic. J}iii d. S'(lri,-ili\
v. Tiid, 7 (i. B. 370.
The crown granted land by letters iiatciitl
J. S. "in trust for his s<in 1. S., a hiiiatif, "
heirs Jind assigns for ever, to have ami in
the same land to him, the said .1. ,S., lii.> hj
and assigns for ever:" — Held, per 1 tiainr, f
anil Burns, J., (Robinson, C. J., diss.), that I
patent coming, as any other mode of a.s.siir:iii
under the operation of the Statute of U.^esJ
Hen. VIII. c. 10, if it did not, from iiiirtiiiT
considerations ajiplying to the lunatic- imly,
the real estate //( him, yet that it iiuverlhel
created a use which, on tlw ili iii/i <//' lln- hut
was executed in his heir, and that thi'ief.'i
deed niaile by the heir after his death wJ
•2184
tin- uii>t*tiT tUc (">iit
l,j. ivU<>wi;<l him ou imm
,,n>\ Ual.iliti.'H '.f i. .H.».
21H.")
MAINTENAXCE.
21 S6
law or next uf kin .>f iv
,. vcHiae ivt a .UsUu. .'. au.
\ l,c ivttcniUil \Mtli ^iivat
viHt.awi.lo.lis.-v.ti".<^vsto
■mtics' estate ; ai.a « km it
;.;' , the cimiiiiittiitocnl-
I'- ,„•> C'h v. *•'"""''-'''-•
1)0 vuliil as Hgainut n <lofil executed hy the
iinuitue of tlie erowu. /'<« il. Sniiilt-r v. Ma.i/ir^
,l,il., S(^ 1». .v..
Hehl, that a tort feasor eaMi.it ph'ail ini':i|ia-
oity <•• iiiiud in aiinwer to nii action for im a»-
Diuilt. Tii;iiiiinl V. //(«< 1, !•_' C. I'. 77.
,, l,v the I'uvsar of iW' I'n^
urn f..r "'""^>*' '" '■';"!
£ Va^/"{uS\ha-'-
Huuloie-n-v the .U.,j.
or .SVi-i-t/'i'vy.
„rt ceases with tlie .\eoth
l^'^iir; "m-^^•-"^•^'•l"■"-
^" V, ers«ehei.eu,Mst,aKt.
^\ m.ler authonly ol tl>e
Ct-t caamin..tvat.o„n,tl,e
'!, r n adnnuistvatiou nnhr
,g lor au „i:,,„^l,t.ui" ihint-
----' ^••:!::i::J 'a'.^.'^;
ie.l into V-. «[",,, Kc;u.u. uf
r.J hi- executing the. W.l>
r l.V^ action nioic than Uul
^-"\ .lied .in.l after iH.liin,a.lfl
Innatic .1 e.i, . m,,.,,,,:
iri.a;vlw-n>:hr':s i«^«
nitations ; and hchl,
^nsnlevedml-os^,.--^^.,
|„f t\ie lunatic. J>^"
f ,1 \-ind hy letters vati;nt
granted lan.i j IvuiaticJ
ft for his son I . ^.. -^ „ ,„„
Us for ever, t yy ^ ^
ll^<'^'"^%S\;crl>r.i.v,.1
F„r ever: -7^' ' \iiss.). tlwt ttJ
M^^"^n'cdher^nV.deofa..«^W
L as any other '^t^,,,,
t. lU) •' .'" . n,., lunatK' ""'V 1
Lavi.iy!»«J';f'thrtuevc.rtyj
^i„ln8l.e.r,.>a - ,^,,
,y the heir alter nis
MACIIINKIIV.
[. In.iI l;v Im;oM.
II. K.NKMI'TIOS KK, KISd.M DlsTHKSS KOIl IIkn-
KKir OK 'I'UAliK— .SVc DlsTUi'.ss.
III. WiiKN Ki.vriiiK.s- .SV. KixTi i!i:s.
I\'. l!i:.sTiiArMN(; l!i:.MovAi, or ,V,, In.iinc
iroN.
V. I'aTKNTS rol; -.SV,. I'atksts I(,1! Invkn-
•iloN.
[.SV
T. IsjIliV l"l;oM,
c.s. r. c. c. ;,>; ./; !•/,•/.
/.'. o.
and It not ftppenriny tliat a -au or otlu^r direction
tollowinj,' the declaration \\:ih neces.s.irv in the
niterest of tlie jiliiintiir, the court niude "no order
foundeil on such deeliiration ; and it not aniiear-
mg that the suit was necessarv, or that the de-
ten.lant was guilty of auv hlani'eahle conduct lie
,..„... "■"■■' '"'l'^ entitled t,. co«ts, an.l the next friend
111 this ease the chirge was assault with Mitent was ordered to j.av fiiem without preiudiee to
t(. lavi.sh. The woman Mas insane, and there any c|Uestioii as l.etwe.ii him and the idaintitV's
was no evidence as to her general character for estate. Yininii \. Ih ,„„^ I 1 ( 'liv. riiSO.
tliastity, or anything to raise a lu'esiiiiiptioii th.it ! .•" •
slio would not consent. The jury were directed ^
tiiiit if she had no moral (irccciitioii of right and
wrong, and her acts were not controlled hy the
will, she was not eajiahle of giving consent, and
the yielding on her part, the prisoner knowing
Imr state, was not an act done with her will.
They convicted, saving she was iiisani^ ami
cdiiseutcd : Held, that the conviction couM not
lie sustaiiieil. Itni'inn v. CukiiiiIIii, "JU t^t. 1!.
;ii7.
Ill the ca.so of rape of an idiot in- lunatic, the
mere proof of connection will not warrant the
c;isL' lieing left to the jury. There mr.st he son e
tviikucc that it was without her consent, e. g.
that she was incapahle, from imhecility of ex-
iiruasiiig a.ssent or ilisseiit ; and if she eoiisent ,
inmi mere animal passion, it is not rape. ///,
A section of a hydaw prohiliiting the sale of,
iutdxicating liipiors to idiots and insane persons : '
—Held, good III rr Jiii.iM V. 'J'/ir t'lii'/iiiniHiiii
„itlii- I'liiii'l ('i)Uiilii.^ of Yuri- mill /'ill, 14 (.'. I'. '
i:i.
l)efoiidaiit, within one month after the plain-
tifs escape from a lunatic asylum where he had
Will coiitiiicd as a lunatic, with full knowledge
I'i the iiliiintitl having recovereil his sanity and
mHv helieving him to he .sane, falsely rcine-
K-nti'il to the medical supenntendent of the
I asyluiu tiiat tiie |dai!ititt' was still insane, ami
iail tliicatuned to take one >M.'s life, which w.is
I tkreliy ill danger, and that the plaintill's hro-
1 tluTS liad leipiested the defendant to procure his
1 ^wiitmc ; and tiie defendant thereiiiion (d)taiued
iriiui the iiu^dical superintendent a warr.iiit for
I kis iiiiest, which he handed to a coiistahle, and
I the] liii I it ill' was arrested and reconveyed to the
I isyhim, hut after a medical examination the next
liljywas <liseharged : -Held, that the plaiiititf
ImiIiI recover in case for the malicious arrest,
itlii; jury having found that the defemlant acted I
liiialii.iiiii<ly and without reasonahle or prohahle
leanso; hut that tresjiass would not lie, for tiie
iHrnint having heeli l)oii:\ tide issueil hy the
Imtilial superintendent, ami heing valid on the
Ike "fit, and authorized hy the statute :{(i \'ie.
It. Ill, s. •.'•_', ()., the defendant was protected
Iky it. ill this case the jury found that the \
Ifciuhiiit acted maliciously and without any |
|ltj»iiiiiililc or prohahle cause, hut tliej' gave a
Iwlict iiuly for one shilling. .\ new trial was
||tiiitid fnr siiiallness of daimiges, Hagarty,
If J., ilisseiiting. Duliln/ii v. Diroii; "J,") ('. I*.
IE j
1 Wlicn a hill was liled in the name of a person j
fniisiiuiKl mind, not so found hy impiisition, |
ivaiiext frieuil, the court, on the suhmission of i
Meiiilaiit, iiiadi' a decree declaring that the j
lliiiititl' wivs entitled to certain lands of which
Meiulaiit had the legal estate, subject to defen-
pt* lien for taxes, &c. , which lie had paid
Kmm ; and the defuiidant not asking a sale,
The iilaintitr, a hoy of twelve, in the eniplov
of ilefcndaiit, was h'ft with two other Imys to
attend to a tlax si'utching machine. He' had
never attended to the inacliinery heforc, and he
saiil that he received no in.structions. The two
hoys were sent away, and the iilaintitK, in at-
tempting t > replace a roller, which fre.p-ently
came out of its place, had his arm c- ..shed in
some cog-wheels whicdi were not ■■ red. These
wheels were on the ojiposite side ot the machine
from where the plaintill' was reiiuiied to work,
and the roller could readily have hceii replaced
without going near them. "The plaiiititl' further
said that lie put the ndler on as he had .seen the
lioys do it, and tiiat he ha<l not heeii warned not
to <'o near tie coi'-wheels. The defcndanfs
eviilence, on the other hand, shewed that the
plaintill had lieen distinctly warned; that the
other hoys had not placed the roller on as plain-
till did ; and that the plaintill had heen shewn
how to put it in. It also appeared that the ma-
chine had heen in use several years without an
accident, although lioys had constantly heen em-
ployed ahoiit it : -Held, that there was evidence
to go to the jury, if the iilaiiitill's statements
were true, and a nonsuit was set aside. I'ii-arif
V. A', W,;U (,». 15. -2] -2.
MAfJLSTllATES.
Sir .JrsTni: thk 1'kack--Sf.ssions.
MAINTKNANCE.
I. Of ,Suits — See Chami'f.rtv axi> Maintes-
ANTE.
II. Or Wife— 5'w Husband andWike— Will.
III. Of Infants— iSci" Infant— Wilu
187
MALICIOUS ARllKsT, PHOSECl'TloN, KTC.
I8><
l^v
f:
II
1
i
''f
i "'-'J
t^
nap
1
1
l'
1,, :
w
1
PI
id
it
Iffrl:
(if I
' '.'y !■;■'
MALICIOUS AIJHKST, VIU »SK( TTION AND
(>THi:i{ l'U(K'KEDlxN(i.S.
1. .MALiriors Aiiiii'.sr.
1. WId-ii nil Avlioii /ii'Hj'iii; 2187'
2. /'iir.'ii'M -I'niiciiKildiK/ Aijiii/, '2188.
3. vl;•/•.v.^ 21S!».
4. MolU'i' mid Wiiiit iif JliiiMdiii'lili mill
J'niliidi/i- CniiMv.
(a) AnniKiit <//', 21S!».
())) J'roiifiiJ', 2I!K).
5. TirniliKtfliiii of Sii'il, I'llt.'}.
(i. I'li'iilhnj, 2 IKS.
7. ErUhncr, 2I!I4.
II. M.M.Urors CkIMINAI. I'KdCKF.DIMiS.
1, H7(»/( «H Artlim Hm/nr, 2104.
2, Miiliri' mill irmil n/' Jti nsiuiiili/i' mnl
I'liiliuhlv r.nwr, 21'jti.
3, Eriilciin; 2198.
4, Ol/iir <"<(•«,<, 2109.
III. UrilEU M.VI.II lois I'ltdi KKDINdS.
1. Prori'iiliiiijH'iii J]iiidriij/l<'>for/iini>lri iii'i/,
22(X).
2. Ihsii'iiiij nr /■Jiij'oiriiig Exevitliuiin on
Jnilijiiniils, 2201.
3. In.illhnj Atlllrliiiliilt.i^
(ii) From Siiiiiriur Cuiirlt, 2202.
())) Fiiiiii Dini'iiin Cmirl-i, 2203.
4. (Jthir CiLscn. 2204.
iV. Actions AiiAiNsT Ma(jiotuates— <SV' Jr,s-
TICK (IK TlIK I'HACK.
I. MALICIOIS AliHK.ST,
1. ]Vlii)i nil Ai'liiiii liixfor.
Case will lie for maliciously swearin;,' to "an
apprehension that the jilaiiitill' wouM leave tlie
province," if any cause for .such apprehension he
negatived. iJiinii v. MrDmitjiill, i'l (). S. 150.
Tliougli a writ of cajiias he set asiile for irregu-
larity, an action on the 'jase will lii^ against the
parties suing out the same maliciously. Cmmrim
V. PIdi/hrit III., 3(^ B. 1.S8.
Trespass would be the proper form of aetion
against the party making the arrest. Jli.
Where a person has Iieen arrested, tliough
irregularly, under colour ami in eonseipience of
a writ, he may sue in case .is for an arrest made
l)y the direction of tiie pereon who actually
caused that writ to issue. Tlmnir v. Miijuiii, 8
(J. B. 23().
After a bailable ea. re. placed in the sheriflf's
Jiauds, defendant settled the suit in full ; he was
afterwards taken on the writ, and therenjiou
sued for malicious arrest : — Held, not maintain-
able without proof of actual malice. Mrlntnxh
V. 1%'phfiis, 9 y. B. 235.
Arrest for claim secured by mortgcage — Action
for — Verdict for plaintitT — New trial refused.
BMelij V. Pattfi-xoii, 15 Q. B. 180.
AVhere an arrest is set aside on condition of
bringing no action, that means no action which
could not have lieen brought unleMM tlie \\\\i ||,i,i
been set aside, hefindaiit tiiert'fori' nmy yim
the plaintiir fur mali<iiius arrest. ili-nlni,„ \
TliuiHiiHiiii, Hi (,». B. 2.V.).
But where a person in custoily under :i caiiini,
liad olitaiiii'ii an order for his dis(liari;c. iiiiuii
wuih ciiuilitioii, and aftirwanls actid ii|,nM the
order, an action for malicious arrest l>r<>UH|it liy
him vv.is stayed witii costs. The last (mm. ||,.i;i
inapiilicablc to the present state of tin lu»
//<(// V. ///•<-/'•//, 3 I*. 1!. 2!t:{. C. I,. Cliaml,, A.
Wilson.
|)efendant, within one montli aftci' tlir olaii,.
tifl's cHcapc from a lunatic asyhim « hrn li,. li;,,!
Ijccn contiiu'd as a lunatic, witii liill kiici\\|,.,|,,,,
of the plaintill' having iccovircd liis s.inltv and
really believing him to be sane, fal-i 1\ ivinv.
sented to tln^ mtilical sn|mrinteiiil(iit ot tlu'
asylum that the plaintiH' was still in>:iiir, and
hail tliifatencd to take one M.'s lit'i , win, h (vas
thereby in danger, and that the plauitill's
brothers had rciiucsted the defendant to |ii.iiiiru
his recaiiture; and the defendant tin riii|iiin nli.
tained from the medical superinteiidriit a war-
r.int for his .arrest, which he handeil ((■ a .nnst.'i.
ble, and the plaintill' w.is arrested and le. ..uvevwl
to the asyhiin, but after a niedie.il t vaiiiiiiatidn
the next d.iy was discharged : llihl, that tliu
[ilaintitr could recover in case for the nialiiioim
j arrest, the jmy having found that the ileim.lant
j aete(l maliciously .and without reasonahle ni- jini.
j liable cause ; but that trespass would not lii, fm-
th(^ warr.int having been bona tide issucil l.y the
medical superintendent, and bein;: valiil mi tin;
face of it and authorized by the Statute .'III Vict.
c. 31, s. 22, (>., the defendant was prute(.tt.il liy
it. /)uhh[iii V. iMiiiii; 2."> (-'. I'. IS.
2. Piuiim — /'riiidjiiil iiii'l A'jiiii.
An action for a malicious arrest willnntlif
against a prineiiial on an arrest wwaXv mi hjs
agent's alHdavit of his own appreluii>ien that
the debtor woiUd leave the liroviliee, the allida-
vit an<l Jirrest both lieing made wiihniit tliu
principal's knowledge, privity, or piotniviULiit.
Siii'ilh V Tlnniip.sDii, () (,). .S. 32.').
Where a debt is due to A. & B.. ami A. makes
an atlidavit to arrest the debtor, li. is nut lialilo
to an action for a m.alicioiis arrest, nnkss it laii
be shewn that he authorized the Hialitii'U.<act,
or was privy to it, or afterwards ailn|ittil ..r
■■issented to it. ' 'iimi-roii v. Plnijli r il nK. H (,i. li.
138.
An agent of a creditor making an niiiJavit ]
upon which the delit<ir is arrested on a ci. s,i., i
is liable to an action for causing the writ tiilmj
sued out and to be indorsed and delivcitdt" the j
shcrifi', and the debtor to be arrestid tlKini]Kii.,
though the jury expressly tind that he enly iiudej
the atlidavit. IJm-U v. 'Forfiiii<; tl (,i. 1!. I'M.
Where it was iiverred in the deelaratii'ii tliatj
by virtue of the affidavit of the dekiii'i"t^ liej
m.alicionsly caused a ea. sa. to be sncil (nit, whtrt
he had no probable cause for believinj;. iVi'.,iuil
that he further maliciously caused the writ tob
indorsed and delivered to the sherilf, lU'. :-Helii,i
on motion in arrest «if judgment, that thin' faits
if found by a jury, constituted in tlienisi'lves th«i
agency of defendant for the plaintill in theeuitii
^^*4ii
0.
Mss
:'1H0
MALlcrOl'S AUl'vKST, rilOSEClTTION, KTC.
■2 I'M)
.cut «uu^ ;:|' '>'; '^"^^•
, ,„„„u, afuy tu.. v'f";
tic, wiUi luU kunv.i.a^.
Uho autVn.b.nt to v>'»:>'>v
, .kf^n.lant tluivuvm ol-
oa sui.c'.-i..t.'ua.ut a uar-
; he b^vu.l.a to a .nn«U^
,Vu-r..t..lana.vo.nv.^;.,l
1 : J I H.\a, that tlu.
'"■ ^ ^w for thr iu;>U>iM..s
'^ t^ .-, ti>U' issm.l l.y tk
'"■'•"'' 1 ...vali.l on tk
^^"'i Cue SUt..t.;ii; Vict.
o,r, -i.-. C. l>. li>-
./•ciii.-;/'"' '""' •■'•'""'■
V ■ „^ Mvrest will U"t Vu'
;';.■'.' n.a.lc. .ithnutthe
W v''>vity. ..V vnKUKuaut.
'""'!'" ,!..i the "alic>.->-*>H-t
Ill
o-aitovma^...-.^;;>'2'
^-"/"■•T.Sa --'t.tJ
ll,t..v to lie .ir>j^. ,,,„!,
km-csslyl'"'^*"''.', ,. '..SI.
1 in the.leclavati.'ntW|
vere.ltothc«U">«;f ,^,^^,f,^u3
L, con8titxite.l»"t'ua i^^juid
lant{ortUei.lau>l.ll"'t" 1
«!iieli nut'd not otlierwine lie more positively',
ivurrtxl. S. ('. III. ri'JT.
Sec McLanrn v. JJIiirk-litii, 11 (,>. U. L'4, p.
'JVM.
U. .IrrrMt.
The nrrPBt ia not jirovi'il liy HliewiiiL' tlmt tlie
iiailiff witli tlie « arrant went to iiluiiititl'M 1ioiihc>
iini toll) him at the (hior that lie had a writ
.iiiaiiist him, Imt ilid not enter the Iioiiki', nor j
tiiiii'h him, and afterwards left him, on his ]iro- '
wise to jiut ill liail the next day, wliiili he dicl, |
I'n-rhi y.Jn;/,;, () (». S. ,S(H1. ' I
The dtimty «lieriir went to the debtor's house '
witii a ca. sa. to arrest him, ami lieiiig assiiivd
that a friend of the delitor, then from home,
Miiiild go his hail, he returned home without the
ik'litor. Afterwards lie went again and told the
4i'litoi', without laying hands on him, that he
must eomu to his (the slierill s) iioiise, whii'ii he
■liil, anil remained there till diseharged hut not
uinltr aetual uonstraint : Held, that there had
li't'ii no legal arrest on the lirst visit of the sherilV;
that the merely insisting on the ilelitor going to
tliu sheritl's house on the seeoiid visit, did not of
itscll eoiistitutu an arrest: hut that the dehtor.
Ill having gone there as desired, and reniaiueil
thii'e till diseharged, though without eoiistraiiit,
hail Ijeell duly nircsted. MrJii/u.^/i \. J)i niinni,
•ig. B. 343.
Sec, also, Munn v. 7V-r.. /, 1 P. K. ;{()'.) ; li;/-
,"„iv. /;/•<<•/■<-/■, II V. W l>(iS.
4. ildliri )iiii/ U'liiit III' liiiixiiiiiihli mill Priihnhl,
> 'mill.
(a) .1 n mil iit <;/'.
A ik'ularation liehl good in arrest of judgment,
•tilting that defendant maile the arrest, "having
!iM iviiSKiiidile or jirolialile cause to aii[irelieiid, '
aiste.lil of alleging " that he did not aii]ireliend,"
tkit the iilaintill' wouhl leave the luoviiiee, iVc.
.0.»/i(i»( V. UiiliMit, t; (». S. 1!)3.
A ileelaration that the defendant, not heing
iil'riliensive that the iilaintill' would leave Caii-
1 111, instead of Upjier Caiiaila, ite., swore that
Wwassoaiijirehensive : — Hi'hl, had, in arrest of
figment. Tlniiiiiixnii \. iliirrixmi, (i(». S. ,'iO!' ;
i ]l'Bfilll v. Cilllljihill, III., 4.')7.
ill an action for a malicious arrest under a oa.
A, it is sulKcient to aver that the defendant
I aulioiuHsly sued out a ea. sa., when he had no
p»in til helieve that the iilaintill had made,
Ik McIiiI'ik/i v. Diiii'i-iii), o q. IJ. 343.
A ileelaration that defendant had not good
[K»mtci helieve, instead of that he had not any
ji-asiiii.ilile cuise for helieving, and not helieving,
liliat the iiilaiutitl' was ahout to leave :—Hehl,
latticieut. Lifous v. Killy, (^ U. '278.
Plaintiff charged defendant with maliciously
I'Msing the writ to he indorsed for a larger sum
Itkii warranted hy the judgment, hut he did not
Vera want of iirohahle cause therefor, nor lay
|»iiy precise day on which the arrest was made,
Tor aver that defendant nuiliciously caused the
liiitiB' to be arrested : — Held, declaration bad.
f'Umil V. Adamn, 7 li- B, 131).
I'len. That ilefendant had a riasomihlc luid
|iroliuhle cmise of action, *e. : Held, luid, ax
amounting to the general isHUe. Smuli rimi v.
Ihiii'u.^, II (,». 1!. <»<».
Plea, to a declaration for malicious iirnst on iv
ea. sa., that defendant had reasonable and iiro-
hahle cause, for that, .Ve., setting out the faetH
on which he reliid : llehl, bad, for uiieertainty,
and IIS anioiiutiiig to the general issue ; and
seliibli', bad in substaine, the facts shewing no
siillieicnt cause. ./««/<.,< v, I hum, I t '. P. ■_'t)4.
fSco aiijfilh V. JldU, 2(1 »/. 1!. iU, \>. JliU.
(1>) PriKif iij'.
.\i-fr.ti ml Cii. I!r.] \\\ an ac'tioii for a mali-
cious iirrest without any iPiob.ible cause of iietion,
it is Mot siltlieient to establish .a |iriiii;i laeie case
to shew ail exemiililieition of the jinlgineiit in tlio
former ease, by whiih it aiijiears tli.it a verdict
was rendered lor tlio defeiicbuit in that aetio]i.
.Sill i-ir mil V. I >' III II 1 11. 3 ii. li. 4.
The ]ilaintiir oirered in evidence the original
record in the suit of the present defendant
against him. with the verdict of the jury in his,
plaintill's, favour endorsed thereon: Ibid, in-
admissible. Diilii \ I,' II mil, ."i ( '. P. :\':i
\\ here in an action lor a malieioii* ai rest on a
ca. re., the le.irneil judge at the 1ii.il was of
opinion tli.it want of prob.ible cause ii:id not lieeli
shewn by the eviilein'e, and ehari;eil the jury
strongly to that ell'ect, but did not peieiiiptorily
direct them to liiid for the delciidaiit the court
granted a new trial without costs. Tijln' v.
nnliiiiijl,,!!, 4 (,l. P.. -M-l.
In an action for malicious arrest defendant
cannot succeed in banc, in nonsuiting the plain-
till' or in obtaining a new trid, on the ground
that no pidliablecaii.se was shewn, if he took no
such objection either at the trial or in moving
for his rule. Jnin-i v. J)ii,!l\ .') l^. H. 143.
Ill an .action for arrest under a ea. re., the
plaintill' gave general evidence of his solvency,
itc. No niilice was proved on defendant's part,
but defendant gave no evidence to shew why he
had arrested. The jury having fouinl nominal
damages of Is. for the plaiiititl', the court refused
a new trial. Liimi.* v. KiUii, (1 *.}. I!. •_'7S.
The mure fact that defendant was told by one
or two persons that they thought he would ho
justilieil ill arresting the plaintill', otherwise ho
would lose his debt, is not enough to enable tho
juilge torule absolutely at the trial in defendant's
favour. Tlwnti- v. Munon, 8 i). li. •23(».
Defendant, living in York, received an anony-
mous letter, dated (itli May, KS-'iO, posted at
Adolphustown, the plaintitl's residence, iiifonn-
iii'' him that the plaintill' lia.t sold out and was
going to leave the country in five or si.v weeks.
Defendant, on the •24th .liine, IS.'iO, without
making any enipiiries in the meantime, arrested
the plaiutitf on a ca. re. : — Held, that there was
a case for the jury ; hut the verdict being large,
t'UM), and many circumstances tending to repel
malice, a new trial was granted on payment of
costs. Jfiiltiui v. Priiiijli', 1 (.'. V. "244.
Defendant gave abundance of evidence to shew
reasonable cause. The judge left it to the jury
to bay whether they believed that defendant re-
m
i
21i)l
MALICIOUS AHHKST, }M{< ►SK('UTI(»X, ETC.
21!
it : iN
ci'ivuil tlui iiifonimtiiin Htntuil tolinvo Ikhii given,
ami wlx'tlii'i' III- tliiMiglit it to 1)1' true tliiit llie
|iluintill \v^i« iilxiiit tu li;avi tin- pniv inci! : -Mt'lil,
tliiit the jury hIiouIiI liitvi' Ik'cii tulil that tlio
|iliiiiitill' hiiil uiit jiriivi'd a want i>l iiniliahln
cause. Siiiiiliv. MrKdij, l(» V It. 4ll'.
Jfi'lil, that u|iiin thi' i\ iilencr in this I'am', it
HhiiMJil hive lii'i'U ruh'il hy the jnlKf tliat tlie
ease failed, fur that i>nilialile cause \va» siiewn to
Imh Hatisfivi'tinii, of whieh hu wax the jiiiigf. S.
C. //,. (ii:J.
HoM, tliat uiiilor tiui eviilouc-) set out iu this
I'aMe, the iiiaintill' ilearly fail-jil to shew want
of reas'iiialile and ])riilialiie eanse, anil that a
nonsuit shnujil lp(^ enteri'd. \Viiiili.-*n v. Mni/n ■
xnll ,1 III., I.'l (,). II. '-'TH.
In an action tor ai'rest on mesne pi ocess tor t'!lH,
the iilaintilt |)rovcd tliat liefori! sticii arrest he
iiad assii^ncil all his cIVccts, aniouiitinL{to C'UMMIO,
iu trust for his iic(litors j;ciierally, with a |iro-
viso that a divi'leud should lie made for all, Imt
that the sums a.-cruiui; to siU'h as had not coiue
into tlic assi^niMcnt should Im^ |iai>l to the plain.
till' ! that he was eui|iloyed hy tlu; assignees at a
salary in arran;,'iug the estate, and that di'feu
dant had Uuowled;,'e of the assignnu'tit. Me also
proved his own general ImltIi ch.aractii' and stand-
nig, and ihat defendant had heeu ciutioned liy
one witness against making the arrest. < hi cross
examination it appeared that tliejijaintill s family
ami connexions resided out of I'ppcr ( 'aiiada ;
that his hou.se had lieen advertised for saK^ a
Kliort time after the assignment ; t'lat his lialiil-
ities were .iliout f-IO(HH) ; and that the assign-
liient had liccn made without pre\ iously calling
a meeting of his creditors: Held, that the
plaintitt' had sliewii prim:! facie a want of reason-
able ami prolialile cause, and should have Keen
allowed to go to the jury, '/'ni'iniiri v. ./nrci-i,
i;u,>. li. I •-'(».
I'laintitl' suecl dofondant ni the first count for
malicious ar?'est, by a false allidavit that defen-
dant liad a cause of action against liim for the
Heduetioii of liis claughter ; and in the second
count for eH'ecting the same ohjeet hy falsely,
&e., representing that he was ahout to cpiit
Canada, with intent, &e. The plaintitl' estal)-
lished a prima facie ca.so on lioth counts, in
answer to which defeiidiint proved that he was
present when his daughter made an allidavit be-
fore a justice of the jieace that she was pregnant
by the plaintitt': th:it he had been informed of
statements made by the plaintitl' atl'oi'ding a very
strong inference of improper intercourse : that
he was told the plaintitl' had said he hail "signed
away" his jilace ; and that he, defendant, had
received a letter from plaintiH"s cousin, con-
demning the plaintitl' for not marrying defen-
dant's daughter, and telling defendant that it
was his duty to look after him, as he was going
to sell his )ilaee, and wanted to sell it to the
writer : Held, that these facts sulficiently
shewuil reasonable and probable cause : that as
they wore uncontradicted, there was no iiuestion
for the jury ; and that a nonsuit tliereiore was
proper. /{!,/,/>■// v. /iroini, '24 Q. H. <K).
The attiilavit, on which the order for the capias
issued, stated that ilepoiient (defendant) had
been informed by certain parties, oneO. ami one
W., that thay had heard plaintitl' stiite that he
•would soon " tix" his proiHjrty, so that he could
go to live with his daughter in the LTuiteil States,
' and that plaiiititr led thvin to iM-lii-ve that 1
contemplated leaving Canada and fiiittiiig |
property out of reach of his credittirs. .\t tl
triivl |ilaiutill' called ()., who at first tlatly en
tradicted defendant's allidavit, but on ciims-e
amiuation said that W. had gone to sec plaint!
who owed him money, which, however, he ,\
not get ; that planititi said he had a d.iii^hti r
the States, ami if he had his liusincssal! rif^lit
all "lixcd ' he would go to her; that ihfeuilai
was asking him (witness) about thin, aiiil he te
him lie ilid not know ; that he did not ti'll il
feiidant, in W.'s presence, tiiat plaintitl Has ;,'iiii
away as soon as he got his property "tixcil j" tli
he did Hot tell him so until tile other ilay, .^ini
being up in town to attend this tri.d : that I
did not "know " he had e\er told liifn aintliii
about it : that lie had told W, Wif !i this ,.\
deuce, plaintiff closed his case, without c.iilii
\\'., who was then lalled for the dcfiini., ai
stati'd that he knew plaintilf hail been iinlelitt
to dell iidaiit for some time ; that he arcoinpanij
( >. on his \'isit to [ilaintitf, when < >. olleriil lij;
for Home articles inori' than they were wnitli, i
order to get his nioii'iy, but plaintitl' refii»eil i
let him have them; that )>laintitr spnUe nt \\
daughter in the States, ami said he wuiiM ;,
there if he had all things right ; that lie wa»ii
making much on the farm, neither paying cl,.|ii
nor making much more than a living ; tliatthii
did not seem much prospect of his payiiii; ii
and that he was owing a good deal ; that lietnl
defendant, on his return, that before Imi:; plnJi
till' Would be olf to the States ; that plaiiitil
promiised to call ami see defendant almiit hi
debt, which he never did : that he (witness) Ii,i,
fie.iileiitly told defendant he had better junk i.ii
for himself or he Would lose Ins debt; that ilt
feiidant became more alarmed when he hiaiil i.
plaintitl' having tried on a formei' occasimi tual
si'ond, when he was arrested and imiiriNoiuil; aii
that he (witness) had siilisi'iiueutly, in answer t
an a|pplication for his discharge, sworn tli.it
inferred from a conversation he had witli Im
that he intended to get rid of his prii|ieitv;i
go to the States, ami that he (witness) liail
lornied defendant of this before the |ilaiiiti:i
arrest: - Meld, that on this evidence tln' jiii'
should, a* a matter of law. have held tlmv u]
no want of reasonable and probable caii.<o,
that a nonsuit should have been entered. /j'»/,|
V. ,/o(„.s, li) C. I'. :((i.-).
ArriMf iiiiCii. Sii. ) In an action fura in.iliti.
arrest on aca. sa , the defendant does nut aiisnj
a prima facie case of want of probable raiiM^,
shewing that although the plaintitl had luiiiv:.
, bly in [lossession of considi^rable [irupiitv, tl
sheritf had returned nulla bona. Sniiih v. '/..
li (>. S. -ilS.
In an action for a malicious arrest on a i,i.
I the (iiiestiou to be submitted is not wliitliir t|
' assignment of the juoperty, which caiistil
' feudant to arrest, really is frainliileiit iir ill
Mint whether defendant had a guml ic-i.^nii [
I suspect it. Oiaiii v. Mi-lhnmltl, tl l,t. H. ,"i|l(i'.|
Where it appeared that the ilefemlaiit 1k;'<
making the affidavit for a ca. sa. hail ciiibiiltl
his attorney, who advised the arrest, tliioul
granted a new trial to defendant on paymi'iitl
I costs. XimrKi- v. L'alcHit, (i C. I'. 14. ."<ti'a|
j Vmii-j'iii-d V. Mi'Lanii, !) C. P. ■Jl.'), y. i."*
I Fcltuircn V. J/utc/iiii.soii, 12 Q. h. (i;i,S, p. I'ilC
,Tr.
:i',':
to l..;\..vo that .
..„u.\a a... V"tt.nu -
f l,i^ .vo.Uloi-. U t ..
^,.. .vtr.v^tiutiv..'.
;„„\,iv>t. \.>it .... . ru- ' -
:r.l »—-''"':'«';"•;
th,.t \..>, .U.\.>..ttL.U.l.
;,. tl.at l-la.nt.ll NMJ« U"'"-
'\,;,,r.,Vovty;'t.x...\; l.a
.• il;iv, xin.
„>.l ..vol' t..l.l 1"">
ii.iytliui.
\Vvt!i t\iis.\:-
"i .tlln>,..n nu.,u.u,.
\ ■ t\l'Vl .i'i">"'"\'''"
Ml
' • *'''\,l;i"H;:ia i.v w..,.>.i
;tivtiv ,
„„,rot\iaiwi
livviiiu '^.''''"
V,vi..-";tl...ttK.-
s |.iiyiiiu
^'> ' ' 1 ,l,-iv\; t .lit h.
• t.i till' StivtfS ; tli.ii j..."
1 HOC .iLti^U.lHUt M...U
'"■*■' t'l.. .a.n"'ttwl""l^ ""•
„...iv .vl.uiiK- ....„ut":.V
jvt'l.V..lLl' «.>'l
u-aiuuiiiiu'!'"""''
ha.l'*!!^"*'''!"^'"
tly, >»
his .lis.liav
s\v...'ii
tlmt
d.lVl'
.•.tatK.u
'\m \iii.l wiui
L't n
I ,.f l.i!* 1""1
r,i,:
iiicitv ;i'.ii
\ that Uo (vviti
I liu.l 111-
U.t
,f t\.i>^
l,c{..vo t\io \.;.i
uititV-
thi^ «'^'"
ll'lK'.
that «." Ill"* /"■•,•, , -1
.1 .. „> hnv. have hol.l tl
tUi' jii'l.'
Ittl'V
it law
JVC WJ
,;il,\c aii.ll'>'
I ,,r..h;ihlc c.uisciw
Ihoiil.l hav>
lOCll *^
iti.m
l.tol-C
fill' a iiK\
th
llSl! «>'
|t\l<'«iil»^
Aefeii.laut.l...- ""'■;'':«
f want «'t I"'
ihU'
tiie plaiutitV ha.l
2i!»:»
loll o
i Cl>U'*l>
lovahlo \.r..y
111
liniL.
I for a
u\hv 1
Hii.a.
,"i»Mi
//,v. '■/,.,
ft.
MAUCTOirS AURKST, rUOSKcrTlON. ETC.
Tfi'iiiinntUin of' Suit,
M04
Tn ciwto for a iimli.'i.>iis iirrfst, tin' .U'rlarntion,
mill ii.it till' writ, \Mis lii'M to lio tlic coiiiiiii'iii'i)-
iiii'i.t of the N.iit ; nn.l tli.' niiit in wl.i.'l. tl.i'
jiii'i'.Mt wiiM ii.i.ilc wi.M therefore helil t.) I»e at an
criil liytin' lii|isf of u ye.'ir hef.ire the ileelai-i.tion
in tliiH miit. Ciiiifrun v. rirtiiiiiini, ,'H >. S. MIS.
cell V'.-;
•vtv. tllv
lUivUcioiis arvf
itto.l M ii"*'
a-ty
, he :*iil""
t\ie I'l'-V^
est, r.'alii, ,
lefo.i.laiit W a
hieli i;uisf
,1 ,lr
^^i;'fnv.i.h,Wut"r.J.
>l>ear
tlitlavit
arroit ; — HeM, H.itlleient ; thnt it wftK uiiiu'con-
Bftry til *l.ew the ofiler net aMiile, or to aver that
tliu atliiliivit sheweil fael.s an. I . irenn.HtiH..'e!< to
Hatiftfy the jiLl^e tho real i ...se of a.'tioi. Iieiii',j
that the ih'femlaiit liv hit fj.JMe ami ii.:tlieio.i->
staten.ent Met the law in iiioti.>n. jiefen.liiiit in
his |i|ea Htate.l what allegation!* the alli.lavit
eont.tineil, (not av.-rrini; their truth) an.l that
Till' iluturiiiination of tho unit i* HiitHciently they satijilie.l the jmli;., « ho ti.i'reii|ion ),'rante.l
.■.verred hy Htatin>,' that " the iilaintill' (tln^ ih:
fcii.laht I.I the original unit) leeovere.l a eertain
Hiiiii f..r ilainageH ami <'iiMts " i.n.ler the provineial
statute ■_• (leo. I\'. e. .">, all.iwiii;^ a ver.liet ami
iuili;lMent for (lefei.ihmt in set-otV, "an.l that the
(li'lVii.lant was in inerey," Ac., with.. lit averring
Ills.., "that the defemlant took .lotliiiiy liy his
writ." iVifiii.r V. Hinil-tiilr. .") ( >. S. .V.'.'i.
Where one of two e.iiints «as had for not
alleging the suit to he at an emi, nor shewing
l.iiw it enih^l, ami ]ilaintitr ohtaineil a geniU'al
vti'ilii't: llel.l, on motion to arrest j...lgn.eiit,
that siii'h oinissiou was not eiiruil hy vurilict.
]liiiiiiiiiij V, lins.tin, W V. I*. S!>.
Tho first count ehargeil that ilefumlaut, not
liiiviiig any ruasoiiahlu or iirohnhle cause, hi.t
ti.eoi'iler : Helit, elearlv no il.l'eiiee. diillilh \.
//till, •Jli (,». I'.. <M.
A ileilaratii.n in the foiin |ire"eril.ei| hy < '. .*».
r. ('. e. ■_'•.•, sehe.l. lie li. No. •.': : Held. slltH-
eiuiit. KiikitiM \. Chi-Ulniiltir, ISC. I'. .'i.H'J.
Hel.l, that it is not m'.essaiy in an aeti.iii
against a eliik of a I livi-tion ( 'oiirt. whi.h chargeH
that he, "as such .lerk, in ilieiuii-ily. ,Ve., issiie.l
a «.irr.iiit of roniniitiiient, " to aihgi' that it was
so issued without the o.'.ler of the judge. Mi-
n,hh V. //•ir„ril,\-2 \.. .1. "JSIt. ('. ('
null.
Dart-
st ..11 aca. '^1. ]
.d that the .lef..^-tW.
fiu- a ea. «a-
lio adviset
\ the ivrre
trii
W V.
,i to defeudaut .... l-ay
Calei't'' «)
c. y- 1-*-
MrLonii,
l:'i'ii/i iin
An
exanmi.'.
ii.iitriviiig, iVe., (not sivying in.>re iiartieidarly in ti,,. n,.,.,,„t ^^-.i
what res|ieet there was siieli want). The seeond
oiuiit was in s.ihstan.'e siinil.ir. Neither eoiiut
iiiiitaiiu'.l any allegation that the suit was at an
iiid ; Meld, that this latter ohjecti.in was fatal;
nil! jiiilgineiit was iirreste.l, //(.«/(iiy< v. .\fnrHii,
14 (.1. B. HI).
Ill ail action for arrest umler a jii.lge's or.ler :
llel.l, not necessary to allege in the dectarati.)!.
tliat the action in which tho arrest took i)lai:e
i.le
|iy
IS ni;l(le. I
(.1 the
op.ing
iittidavit on whi.di
front the hands ot
the proper otlicer, ami ^liewn to have h.'eii n«e.l
in the cause, is sulhiieiit to prove that it was
made hy the ilcfeii.lant. S/i(i;li,ri/ v. /tinliiiiiini.
•A O. ,»i. H'tj ; Fi'-jrnil'l y."\\;U.,: 'V. T. •-•
I'ic :» Vict.
Hehl, allirining .'^patl'or.l c Uneh.inan, .'Mt. S.
'M\, that ill an action for nialii'i..iH airest on ii
ca. .sa., the altidavit is snili.icntly pi. .veil hy a
copy of the original tiled ... theciown ..llice; ami
w:w at ail end, or that the plaintiff had lieeii (lis- i that the identity ..I .lefcmlant with ilepoiieiit
iliarjjf.l and the or.ler set asi.le.
(■/„■;«^,/'/" '•, IS ('. 1'. ."iIVJ.
EdkiiiM
"I"
fl, Pleailliirj.
Ill all .u'tioii for arrest un.ler a jinlge's onler,
I jiiaveriuiMit that tlie defemlant maliciously oli-
1 tiiii.'il the order an.l emlorsc.l tlic writ of ca. re.
tl
le name.
imiv he presunie.l prima facie from
)»•</..■./( V. T/inr/>r, \Si). W. 44:1.
Ujion the general issue, in an a.'tioii for a
niaricioiis arrest, the writ is not a.lmittcd.
Jilliirs V. .1/;/As 4 i}. li. IJlili.
Ill an action for malicious arrest, a notice to
pro.luce the writ .>f ca. I'c. issued, \-c.. at tlu
suit of A. against tln^ di h nilinil in this cause ;
fdrlwil, shews sutticieiitly that the writ was en- Hel.l, siitlicient, the mistake in using the w.ird
iloiseil uii.ler the order. JIiiiiis'dIi v. \\'i/rii.i; .") "defemlant " for " plaintill " l.iing a mere cleri-
I). S, ,V2."i. cal error, which coui.l not mislca.l. II iV.vo// v.
Intre.spass for an arrest un.ler a c,i. re. against (lilniinir, .") (^t. H. '1V2.
thiiilaiiititl' arresting, the declaration need not : To connect a defeinlant sued for niali.'ioiis
sttiiut the atti.lavit to arrest, /itdnur v. /)(»(•• | arrest with the writ, the writ itself shoiil.l he
i«;;,4Q. H. 211.
In an action for a malicious arrest on a ea. sa. ,
litis imt necessary to set out the jmlgineiit in the
[iklarati.in. ('rdirfiinl v. StiuinU, K. T. "J \'iet,
To 11 ilcclaration "for maliciously causing the
bhiutitV to he arrested," a i>lea that defemlant
^lii! iiiit make the atlidavit stated in the deelara-
li'ii; WM hel.l had, for professing to answer the
*lii'k' 1.1111SC of action, and answering only part.
piiKj V. l.ir, 4 Q. B. 377.
(t, tilt i"iirt|
meiit'-'
•i%y\
produced, .ir, to let in sec.iii.lary evi.lcn.'c, its
loss iniust he shewn or notice to produce it, un-
less defendant has ail.ipte.l the airest, as hy tiling
alUdavits in justilication. 'I'lmnif v. Mn-iuii, N
q. 15. '2m.
It is neenssary to produce or prove the writ
in order to connect ilefemlant with the act.
I',llf,■l■■^l>ll v. Murri.'iiiii, 17 <v>. B. I:t0.
Where the action is agaimt the agent of the
plaintill' in the suit, it is not sutticieiit t.. iirodiicc
an affidavit purporting to he maile hy him : it
.\ ilwlaration for malicious arrest alleged that niust he proved to have heen made hy him, ami
the time of making' the atlidavit, procuring that he was the iilaintitT's agent. Mi-Lnn-n, v.
lejmlge'a order, issuing the capias, an.l arrest- UlnrldorL; 14 Q. H. -4.
j tilt' iikiiititf, defemlant had no reasonahle or'
tolwlile cause for believing, &e. , yet he falsely •
Dilmaliciously, and without any reasonahle or'
lulttlile uauau, made oath that he verily lie-
kv^tl, Jtc, and by means of such false allega-
jMis f.ilaely and maliciously indueeil the juihge
1 grant the order, and caused the plaintiff's
138
II. Maluious Criminal Procef.din.is.
1. ir/icH (HI Act'uiH lift for.
Although generally a party who makes a false
statement, knowing it to bo such, to be acted
» 71
'r~<i
2195
MALICIOUS ARREST, PROSECUTION, ETC.
! Ua
M'i\':\
:'•!:
Ji
iil>(iii liy aiidtluT, is lialilo for any injury tlius
i.musimI ; yot wheiu tlif party, in laying iin mfor-
iiiation lii't'oro a jHilifn magistrate, had given an
incorrect vursiim of tiiu .statonient made to him
l)y the ilefenihmt, ami canseil the plaintilV's
arrest, it was held that defendant was not lialile.
SjMir/:.i V. Juki fill, 7 V. I'. ()!>.
The deel-iratiou alleged that defendant falsely
ami malieionsly, and without any I'easonalile or
imihahie i:uise, jinic-ured one M. to ajijiear liefore
a magistrate, and charged defendant with ol)-
tainiug money from Z. and othels hy false jire-
tenees. auil u])on such charge ]irocured the
magistrate to issue his warrant, ami nmlei' it
caused defendant to lie arrested and brought
lietore the magistrate, who iiaving heard tiie
ciiarge ilismissed it, and discharged him. At
the trial it ai^ieared tliat the otl'ence was alleged
to have Keen committed liy the i>laintill' in the
county of Middlesex, hut the charge was made
and the warr.mt issued in the city of London,
hy a .1. P. for the county only, not for the city :
— Held, tiuit .IS the magistrate, acting out of his
jurisdiction, had no authority whatever, the
.iction was misconceive.l : that it was as if ile-
fendant liad himself directed the arrest ; and
that trespass, therefore, not case, was the pniper
I'emedy : and a nonsuit was onlered : Held,
also, that defendant ^^ as not ]prechiiled from oh-
jectingto the magistrate's jurisdiction, by having
caused the a|)plication to him as sucii, there licing
notiiiiig to sliew tiiat he did not really lielieve
liim to iiave author'y. .11 mil \. MrArlltiii-, 'H
i}. H. L'.-.4.
I'laintitf sued defendant in the lirst count in
tresii.ass, stating tiiat. acting as coroner, he as-
saulted jdaintilf, ite. 'Che seeonil c(atnt stated
that defendant was acting as coroner, Ikv., and
that, a jury being duly -worn, he held an iuijui-
sition on the boijy of one F., then lying dea<l.
setting foith the linding of the jury -which
shewed that ileeeascd had died fiiim the ellects
ot laudanum adnunistered acconling to a pre-
scri|>tion by iilaintitl'. and through culpable
ncglii'cnce on his pait in not having given sntti-
ciently exiilitit directions and chai'ging that the
defendant maliciously and without reasonalile
cause issued his warrant loi' plaintitl's arrestand
connnittal for wilful mnrder, on which plainlill'
Mas arrested, i\:c. At the trial, on its being ob-
jected that ilefeudant, as coroner, was judge of a
court of record, and therefore that no action
Would lie against him for an\thing done in his
judicial <':iiiacit\, jplaintiH' projioseil to shew that
he had aeteil maliciously and was therefore not
protecte<l, iiut without suggesting in what ]iarti-
eular he had so acted. It was not disputnl,
however, thit defendant had acted within his
jurisdiction and super \ isuni corporis, or thit he
had i.ssued his warr.'.nt on the linding of the
jury. (»n this ]daintill' was nonsuited: Held,
that as defendant was acting judicially tresp.iss
would not lie against him ; and that, though the
nonsuit did not appear so eiroueous as to war-
r.int its being set aside, still, that if the plaintill'
desired to present facts to the jury not suggested
to tiiem at the trial, the court woulil allow him
to do so, on pavnient of costa. (Itinicr v. Coli-
iiiiiii, 1!M'. 1'. iOd. I
Itufendant, a justice of the peace, on the .5tli
May, l,S(ii(, i.ssued his warrant against plaintiff
<in an alleged charge of stealing a lease, without
any iuforiuatioii being laid, u])uu which warrant \
plaintill' was arrested and brought
At the sessions defendant aiijieared
tor, when jilaintill' was tried and ai
Held, that a count fiu' nudieious
could be added for this. A/iiiklun v
('. I'. i:w.
The lirst v-ount av(^rreil that tin
charged the jdaintitl' with having
ileath of S. by administering a jioist
and, upon such charge procured a '
plaintill "s apjirehension ; and the eh
information was to the same elf'ect :
as disclosing no valid cause of ae
felony was eh.irged, and the admin
the drug might have been either aeci
a medicine, so that there was nothii
to found the magistrate's jurisdictioi
v. .Slrp/iri,.., •2H: I'. 4-J4. See Ciiw
ih.iiiii, -r, (/. 15. :u:{.
See Mil II, -or V. v|/-/.o//, •{<) Q. E
Siiir/air \. Jliii/iKu, !()»,>. H. 247, p.
'J. Mid'irc ini'l Wiiiit III' IliaMiiiiitilr in
t'llllSC.
It is iU)t sulficient for the plaintiflf
prosecution and its abamlonnient, t
jury ; he must also shew want of pro
'/.ii]iiihifr V. S/i'iiik/I, T. T. 1 it '2 Vic
Where, in iin action for nuilieious
for arson, it was shewn that defenda
information through the oIKce of tin
secretary that certain persons conii
penitentiary could give information
ject of the burning, and he went
received their statement that the p
committed ar.-,on : Held, that if he
tide on this "eiiresentation, it formeil
justilicatiiin. il.tinilil v. Afiivfnirii, (
il '.ise for malicious prosecution f(
Held, that under the evidence st
rep(U't defendant had reasonable gi
pecting the plaintill', and that a
rightly directed. ll'/'/vo// v. Lir, I
The dcclanition for malicicais pri
leged that defendant charged the )
having unlawfully and maliciously
the defendant s premises. The infoi
diiceil at the trial, was that defenil
were set on lire, that he hail reaso
they weieseton lire bj' the plaintill
tinit she might be held to answe
charge." .\ verdict hiving been
the plaintill' for .-! 1 01)0 : HeM, ou t
ted lu the cast', that there was eviih
of reasonable and pi'obable cause :
declaration, aftei vcnlict, though un
[irecise, might be htdil to import
That there was a variance between
tion anil evidence, the information i
any crime ; and, (j>ua're, whethei
to suit the inf uination the count ci
The court, considering the damaj^e
allowed the in.sertion of a count in
lieu of that in case, if the iilaiiitill'
sent to reduce the verdict to.><;t(HI;
granteil a new triai on payment nf
leave to the plaintill' to anieud.
Ahliotf, -Mq. H. 7.S.
Uefendant lost a bird and saw it i
house, who refused to give it n\>.
;ect:tion, etc.
■IVji]
■IVJT
was arrested iiiiil lirouglit bufon liii,,
iessious (lefeudaiit ai)i>e:irecl as ]iiiin,,h.
:ii plaiiititt' was tried and aciiuittnl :
liat a count for nialieious i)ros( , uti.iu
added for tliia. Ainiklim v. A'//'", 'Jil
8.
irst jount avorred that tlic defniilaiit
tlie jdaintill' with having eaiiscil tli«
f S. l)y administering a i»)is(»n(ius ilm,,
in such charge procured a wanum tui
's aiiprchension ; aii<l the cliar;,'i' in tin;
tionwas to tlic same effect : Hi'M, lail,
using no valid cause of aetimi, fur n,,
vas diargcd, and the administratii f
; might liavc lieen either acci(h'iit:il mas
inc, so that tlicre was nothing on whi.!,
I the magistrate's jnrisiliction. Shiil,.,,,
-//•S -21 ('. 1'. 4'J4. See Caiiiphr/I r. .!/,■.
•J7 (,). B. :u;j.
M,i,n-oi- v. Ahhntt, ',V^ <). H. 7^. iiifin.
V. //-■//"'-■, l<>«i>- K- -47, 1). -'111!!.
ri' (ui'l ]V(iiit iif RiatiiiKililc nii'l l'r:,',.il'.
Clinic.
not suHicient for the phiintin' to shew tlic
tion and its ahandonment, to go t" tlio
le must also shew want of prolialjlo iiiiisi'.
> V. S/niiictt, T. T. 1 it '2 Vict.
re, in an action for malicious proseciitimi
n, it was shewn that defendant rccLivul
,tion through the oIKee of tlie gnvLTimi-'i
■y that certain iiersons contincd in the
tiary could give information on tiiu -uli.
the' luirning, and he went tluiv ,iiiJ
1 their statement that the iilaiiitilf liail
ted ar.-;oii ; Held, that if he actuil limiii |
this •■eiu'csentation, it formed a siiHitiwit
ition. O.tiralil V. Mdr'iiirii, (i 0. S. 471.
for malicious jirosecution for arson :-
that under the evidence statdl in tk'l
lefendaut hail reasonable grouml fdrsiis-
the plaintiH', ami that a nopsuit iviij]
directed. IIV/>o» v. /,.,', 11 (,l. W.'M.
ilecl.iration for malicious iinweLiiti'iiiali
liat defendant charged the plaiiititf wilkj
uulawliiUy and maliciously sut ipii tirel
endant's jiremises. 'The infiiriintimi. I'lvl
it tli'J ti'ial, was tliat defendant's iiriiiiisejr
;t on lire, tiiat he had reason t" lii'liive|
ere set on tire hy the plaintiff ; ami inaveilj
lie might lie hehl to answer "tliv s>il
," A verdict hiving liccu rciuli'vliiiri
.intiff for .-^lilOO : -Hehl, on tlic ''■m\>
the casi', tliat there was evidem'L 'li «;iiu
loiialile and prolialilc cause ; 1 'I'lut
ition, aftei verdict, though nut siillii'iriitljj
', might he hchl to iniiKirt a iiimc: *
iierc was a variance between tlic ilnlw
id evidence, the information nut AatJi
•inu' ; anil, (^ncre, whether il mimM
the information the count nniM lie H
lurt, considering the daniaj^es cxassiij
d the insertion of a count in tr(S|Kiss'
that in case, if the iilaiiititf wniH a^
I reduce the verdict to .StOO ; aiMl il nj
d il new tria'i on iiaymeut of o<sU. «ii
to the plaintill to ameml. M""'" '
, :«) Q. B. "S.
.•ndant lost a bird and saw it in jiliiinlj'
who refused to give it up. M»
MALICors AEKKST, PROSEOWIOV ETC
;istrat,. ;,M,l .*„._, ., . ^^^'^^,b.K
uiuii wenr to a niai'i«<-i..,*- , -'■^'-',.11, ii 11 ■ -, ^
I'l.'.intiff's ...;,,'":' ^/l;;, ;:; «"/l'".'te.l it to \,,t ^'""'V'-". -'.i (... B. .-;;;/''• """"'tor,al. J,,„c
wm-ant, on which fl„. /l'H'7f''it<'' 'ssueil .•, >,,..,, .|, , Want of reisoi.-,l.l
M- 1-a and .li^:;!;. ^ ^ " t 'i^^'^ '"•""»''' !' ' ^ ^ ^'-- '" thi;' ssitiff ' nirv:"'' ^r-- "-*
"'■'0 l.i.a and Oi^^ZS^''^'^ ""^ ^>^-n~^^t h -
hiveny was eonnnitted ^l- H,]''?,"''"*'', ''"^t n
i.nev„k,K.e of malicious intention i^''"'''^' ''''^^
•'I'lclcuilant w.as upheld /'' '■""' '' ^'^■''''H't
,"■ «ll(licieMt, for'it'i's"";;,:. •^"^'l'^ ^■^■'''^•'H.e may
l"'t tiiere nnU I ,. "- 1""""' '" '<■ He-atiJ,.
■;*w;;r5*SSi2i;"V"T.- »s«.i.
■'!'",' "' ""eC. to blVi'-^ '',"","' ""I'e jiosses-
^^■fdmg.s to lieinstt " ' '•"" "■' ^■■■'"•■'^■'l pro
;;■«■'•. ''''tl.eh. ^','f"'V'"'''/'■'•^'^'''■
f';'tc. instead of nierelv «nf ' f '''''"«'-' ^'"' '".'Ws-
^;f'^'"tothe,p,.«t:.:n,^1;::;;:,':''''7''-"tere.I
'" the imson,.,. .^... ,. /".^o"'t and innocence
^'- ^'-•^^- ';:^^-'i<u.t;",:;^\-;: ;';;7-d
of aiirev;..„o ..^A •'■'^'-'"■"■d.s 111-
iiiMVedand secreted a ,m„V/> ^''""'^'^tinoly re
'r':-fi"«tol,ini,aV,!l^ti ;*>■;;' ^''"''-''M.!.,,,:,
pLiiiit issue,! his ^^•arrant di • f ''^ "," '""■'' ^''""■
:osc,nvh for the .s/u- 'b, f '"-'':: ^'''''-^tal,].
nng them and the sai (',' T"^ ' '■""'.d to
ealtwith uccordiny to aw. iV'T,''"','' *" ''^'
^l'Y«^' nnd nature of the 1;,„ ^V''''. that tlie
*■!' as aMtliori^ed the iusti.^ ''■""■* ""' ''^■'■"«
■"^^'" '"'■''<'"« the comnfe f A • ''•^' l"'"^-''"^'
f'^-'^ "" «''icli tlie ti ,r .;. '" ^'"•' ^'■'■■'^'. the ; « '-'"ed leaso 1 1, ''.') *-■'" "",T '"^tiM'ed a,, I
l";™''^"'t and a, rest t r ■ ' i;" "'^^ ''"''- ""d ^^Y^''. In a, til f, '"'"';!'':"'• ^'^"^- f-r to
'^'l that defcMdant had , rSS l:!:"'^ ^T'^'^ ' "^'''- Hagart , c . aS'^'""*' 1"— -ti-m •
;■ c^' .i"ry, and tlnlt they ; ,'' '"^^ ''r^''-'- ' ?''"' ^^ I'-^l'^'ilV;, ere ';'"=;, "'''^ '■' """■
»«:-HeM, tliac the iui,„,. ^.V .>":"'^"' t'le •'^''''Wed leas., , able , j ' /",'" tl'at the fa.'ts
to'eviiieace of want ^ , . ^ "^'^• '"" ^»as ^^-"^ '"-t dispr , ' I.' ' ' l"'"'"!'''^' «-'ans., ^h^k
^I'i^' cause, and a n,i isui ''"""i''''^ ■■""' 1"'<.. ' "/'der the c cum t ^ ^^'"'^ "'^' •^''-'^^"'"l Im
'lii.',Icfeii,I,uit H-:,- .. ;,.„^.- , . "wlaratioii fn t 'T' ' " -■'•
IliL' ,IcfL'iiiIaiit H-isi .> ;,. i-
n"«k..lgo of tiic eiren ,4 n ' ''^■' I ""'•-■'! I'is
^vi.rrc, I the charge S/'r V"' "'"'^'l' lie
.'" tJie habit of .'":'.'' '-'^•'•k. ai.,1 as sn^h
s;;;---.'..^"S, ,„„,,:-,:■, ;j„„^.
''en,Iaiit
219!)
aiALICIOUS ARREST, PROSECUTION, ETC.
jirove that (lefeiidant laid an inforinatiou on
oath, wlioru that is not avurrecl in tlie ileclara-
tion ; it is uiioiigli tci shew tliat he set the ii'.ag-
istrate in iiiDtion. Nor is it iinlispeiisal)le that
the party eharyed Hhcmhl iiave hueu arrested or
iinprisdiieil. In tiiis ease tlie jihiintitl, on receiv-
ing the magistrate's siuninnns, attendeil in olie-
dienee to it. Tiie eliarge <pf fehmy made against
him )>y (hffendant was dismissed ; hut tiio
niagistriites thought lie had ))eeu guilty of
iiiiseoiiduet in the same ni;itter, and he was lu-
quested to attenil <in anotlier day, to which they
adjourned for tli-.' liurjiose of considering that
point : Held, that the determination of the pro-
ceedings with reganl to the charge comiilained
of was sutiiciently shewn. Siiidnir v. J/<ii/ii(-<.
i(i Q. H. -.'t;.
Ill an action f(»r maliciously making a charge
l)eforc a magistrate, uiion which [ilaintii}' was
arrested and afterwards discharged : -Held, tiiat
it was necessary to jn'oduce the information, or
lay a foun lation for secondary evidence; and
that the jilaintitl' having done neither was jiro-
perly nonsuited. -.VtK/c.^c v. Foxier, "J I (). B. 47.
In an action for ni.aliciously and without pro-
hahle cause jii'ocuriug a warrant to issue and
arresting the iilaintitV: Held, that an exemplili-
cation hy which the indictment appeared to have
no general heading or caption, was not evidence
sutHcient to sustain the actiim. As/mi v. Wrii/lit,
i:u'. r. 14.
4. Ol/ii r C'dxii.
AVheiv in case for a malicious prosecution
it was alleged in the declaration that the trial of
the imlictment took place lieforeaCourtof Oyer
and 'i'erminci-, and the indictment was at gen-
eral gaol delivery ; Held, that the variance was
ameiidalile, and that the trial of the indictment
lieiug through a (,>ueen's counsel did not deprive
the jilaiutitl of the right of action against the
real prosecutor. ('(/;•/• v. I'mtull'iKit, V,. T. 3
Vict.
In a declaration for procuiing plaintilf to he
indicted .■ t the t'ourt of (Iyer and 'rerininer,
avernients, that defendant, on the "Jud of .lune,
went Ipcfuri' a court holilen on the 1st of .lune,
anil that the jilaintilt \\asac(|uitted at Nisi I'rius
on an indictinent found l)y the Court of Oyer
and 'rcrmiiier, were liehl hatl. AkIiJ'oiiI v. O'n-
luiii, it III., 7 Q. !>. ')47.
A general verdict on a declaration eontaiiiing
one count in trespass and anotlur in case, is not
Inid in la\». Hut in this case, the court heingof
opinion that there was only one joint cause of
action against the defendants, that is the arrest,
restricted the verdict to that count: Held,
also, that a joint tort was sutiiciently estahlished
against the defendants liy evidence that one jini-
ciire<l the warrant to he issued and the other
issued it; that hoth knew tliat no charge hail
lieeii inaile against plaiiitifl'; that the warrant
was given hy the one to the other for the arrest
of plaintiff, who was accordingly arrested upon
it, and that illegally. Seinhle, 1. That if it had
ai)peareil that defendant who issued the warrant
was lialile in case only, and malice of some spe-
cial kind, personal to himself, in which his co-
tlefendant watt not, and could not he a partaker,
had heen proved, a joint action would not lie
agaiiiHt hoth ; "i. That one defendant might have
' heen cimvicted in trespass, and the other in c
i Frill V. Firijiixon ct nl., 1") C. P. ■■»84.
I 111 an action against two justices for one ar
imprisonnient, charged in one count as ;\ t
■ pass and in another as done maliciouslv,
jury fouml .'?800 against one defeiiilant, :niil.>
against the other. Semhle, that the daiiKi
could not he thus severed ; Imt, Held, iiogroi
for a new trial, as the lindiug might he tiw
as a verdict for ii^SOO against one defendant,
other heing let go free hy the iil;iintili'; (^iiii
as to the pro])cr mode of enteriiij^ the iiidL:irii
ClUxnlil X. .)fiiiliil/, '2'y (.). H. SO ; alhniir.l
Appeal, ■-'(; t-l H. 4-."2.
The plaiutilV, in a previous action, .-ik'I
trespass, for assault and false imprisonnuiit.
wa'i nonsuited, on the ground that her niin;
if any, was liy action for malicious prijscciit;
She accordingly sued in the latter foim of acti
The defendant then ohtained asnnmions tns
all iiroceediugs until the costs in the lirstart
should he paid on the ground that this :
was hidught for the same cause of action. '|
summons having heen made al).solutc, tlie )ii;
tit}' appealed. Harrison, (". .1., hel'orc \\l
the apjieal was heard, alhiwed th(! appeal ;
set aside the <irder staying proceedings. In
ing that tresi)ass for jussault ami false iiiipris
ineiit and case for malicious prosccutiou
clearly not the same cause of action. Siml
that the jurisdiction to stay proceedings in «
of this kind should hesparinglv used. I>iu,liii
Miirlhi, <> 1*. 1!. •M'X See"7/»/'/ v. .I/.. I,//,
25 ii. n. !»0.
III. Orni:u Mai.icioi's I'limKK.iiixi.s,
I. J'rori I iliiii/x ill Biiiikriijilrii iir /n-^nlrnrii
In an action for maliciously suing out a ri
"' ■ li
mission of hankruptcy against the [ilaniti
should he ilistiiu'tly averred that dcfcmlaiit a
without cause the averment that he faisil\
maliciously swore to the delit is not siitlii.
The de<.laration shotdil also state that tliu i
mission issued upon the atiidavits .set mit
that they were inaile heforea com|ietciit aiu
ity ; also, that the commission was smjuim
I lef ore action. Lorkr v. Wilxoii, (i (^1. 11. (idO.
Declaration, that plaintiff and anotlur cni
on husiness iimlcr name of •' Mcfiill Hr^s. ';
in good credit and solvent, and had not ics.
meet their commercial liahilities, as di tVml
well knew : that defendants, heing creilitur-
over .'i<.")(M), maliciously intending to injinv
titf, and destroy his Imsiness and credit, inl-
and maliciouslv, and without rcasunali!'',
cause, made a ilemand in writing on said tin
the form " H " in the schedule to tiic liisul
.\ct of l.S(i4 ; that within live days tlnii:
defendants refused to ahandon said imiiciili
hut, as a condition, insisted that pianitill >li
retire from said linn, and that certain swiii
for a coin]iosition on delits of said linn ^ii'
he given, or defemlants would |iriic(i(l: thiil
trade and credit of the linn weie ininli iiijiii
and that in conse(|Uence of di^feiidaiits' |ii.n'
ings theplaintilf was put out of said linn, witli
receiving any share of the a.sscts, iSc. : Hi
on demurrer, had, as shewing tiiat tiic \<\w
ings on the demand terminated against tlie |'li
tiff, not ill his favour, and .as disclosing a statt
facts, in the suhmission of plaintiff tntln''
r, ETC.
2200
•2201
MALICIOUS AllRKST, ritOSECUTION, ETC.
,m88, an.! tl.c other hM.as,,
/., l.")0. V. .>84.
,ttwoju8tkesfov,mca./t..i
ea in ..no count a. a tv.s-
,. as aono uiiiluionsU X\v
U?'.ne.lefcn.l.nt,a.,as40,.
Scn.l.lo, t\.at tl.o a.uK,..-
\-. Imt, Ha.1,11 "■••'
) ixgivinst »w '
,\i'fi>nilaiit, tl\-
,.eT.Ytliei.liU"ti«'; >'"^''-^-
' ,,{entevh..itheH:-"'^>\'.
li. SO ; athniHil u.
>•>.
MlO.l
, a vrovi""« action, mk.i...
t .vn I false iinpn^onnKnt, !■«>
el in tUe latter torn. otu.Uo,,.
l^.une.lasnuun.mst..st;i\
heai 1 -v ^^^,,.,,,.^. „.|„„,^
larnson, i^- •' ..^^ ,^,„,
lieanl, aUo%\e«i im . \ i
1 V stwiii« i.roeeeani^'>, hM-
trt^auuiu.Ualseuu,.ns...
' f„r malicious l«r
same cause o
•tion to stay I'vocet"
ul,ll.esi.aringly"^c.
, ;^ii). !?ce Jill"' ^
)sccntiiiii ;u
(ction
lin
. lU >;\-
Viint r.r.oiN''"-
f„r n.aliciously
sinng
Ut A <vll,-
.luiiuilV. r
tlie
[ore to
|n sliou
u\ioi>
the -lel.t i^ ""t ^'< h--'^"-
la also state that the .^v:-
' arti'lavitsset MUt.ar.i
the
iu;teut autii":
nuuleheforoa e,^..V'
Loi-kr V.
\ iinoth.'iM-UTi"
■'- 'Sv'SSili^t «..^
nianil. instead of controverting its reasoiiahle-
iiess, which slieweil that defunitants hail reason-
ilile I'rounils for tlie proceedings complained of.
'"' V. .S'«(//(«</ (I III, 1!» V. r. 443.
lR\ons
,y his business a
,lv and without
' tJman.l in wnti
in the sclie.lul
tCat within |;-^;;;7:,:;::::i' :
;t ..11. nisisteil tn'O- I
2:J02
of tlie mistake
J/«'I/'V,
ut-
.MTiUt'il-^ !'■'•
[ilaii.-
vnd'cveait. iMj
vciisonahl'j, ii'
„,,usai'Uiniii'.']
%, tlic lusnlvrt!
(lavs tlitTia'.tv'fl
Jhxiiiiiij or Eiij'omnij Erffiithni on JihIijiih nts
nor the defendant hecanie awari
until after tlie time for moving against the award
had elapsed : that in similar ignorance of tiiese
facts mutual releases were clireeteil hy the arhi-
trat<irs, and defendant executed and tlclivered
the release in the declaration mentioned : that
liefore the tresjiass complained of ilefendant
^. r r . . , i--i.li- discovered the mistake, and requested the idaiu-
In an action for enforcing a judgment m itsel ^^^^ ^„ ^,^^ ,,.^,^,,,^^ ,,f ^.^j,, ^./^^^^ ^^, ^,^^, J^^^,^^
regular, hut which has been satished.nahce ami ,,.,^i,,/,,,^ promise.l hut afterwar.ls refused t^
„ant otprohahle cause must he alleged in the ,,, ,^^^^^ .iJfcndant thereupon, with the know-
,lecl.inition. Anil v. Arm.slromu U i}. h. .18.,. , j^,,^,^ .^,„, j.,.;^.;^^, ,,f j,^^^ j,',,^i„ti„-^ ,,,,„ t„.,k m.
Tlic declaration, after setting out a judgment means to iireveiit the same, allowed the sheritt'
ivciivcrcd against the plaiiititl in an action in to ohtaiii satisfaction of the saiil balance, as he
wliicli defendant was the then plaintitl's attor- lawfully might : — Held, on demurrer, plea bad,
iiev, alleged that the plaiiititl' paid the same as shewing no defence. Held, also, tliat it sutti-
ixceiit a small sum, yet that dcfeinlant well eieiitly ap]peared from the declaration that the
kiiiiwing, but contriving, &c., issued a ti. fa., and seizure took place after the release, and that the
uiuiint idly and unjustly caused the same to be i)bjcction was, at all events, removeil by the
diilorsed for the full amount of damages and ; plea. /)iirii-is\\ Dnroi-', \'.) (). 1177.
costs, well knowing that only a small por- '
lie in on del>ts oi
L-feiidants woul.l 1
,vuccca: tlwttl.^
niiu'li injii"-';
;rof the linn w";:; ;;;.-!
,,use.,ueuce ot ;^'^^' J ,„\,„1„.,
,Vwasp"toutots,ul'^ • j,^,,,i
share of the assets. ^U ^^^^.
had.asshewu.gth,t I
i--!^^:;;:rasd!X-;.^>;;;:^
ilaiutitl to th.
turn thereof remained unpaiil, .and caused the
sherill'to seize the plaiiititl "s goods : —Held, that
111! cause of action was shewn, tor it was not
st;itnl that defendant acted maliciously and
witlimit reasonable or probable cause, and these
iiveniieiits were not dispensed with by the alle-
:\tiiiiiof his knowledge that the dobt was nearly
iiaiil. Semble, that the declaration was defec-
tive also ill 111^1 suHiciently shewing damage sus-
uiiieil, for it did not ajipear that the sheritl'
aizeil goods to a larger amount than was really
line Yoinni V. Dtuiiill, '21 Q. B. 44.S. .See also, \
Barkr v. /)aiiiell, \-2 V. 1'. 08.
'>.-.' I Ation that defendant .S. rccovereil a jndg-
liK ► ill 'lie Queen's Bench against the now
iikii'i", -u' Is. damages, and that the master
imiinipei'ly allowed his costs at t'.SO lis. Id., for
niiiili juilgmeiit w;us entered ; that the costs :
ntie uttorwards revised and allowed at til 3s. j
'>L,foi' which S., was entitled to execution ; yet I
;iiu ilefeiidaiits wrongfully and maliciously, audi
aitlidut reasonable or jirobable cause, caused a
•;. fa. til he enforced by the sheriff for t!.S!( 3s. Id.'
lidiiiinvr, because the declaration did not allege
tl.attlie jiulgment was altered, &c., or that the
imouiit was levied on an execution improperly
iueilotit, &c. : — Held, that the declaration was
tiittieieiit. Dvirarital.w Can-'mue, I4C.1'. 137.
heelavatiou, that defendant recovered a judg-
Bitut against the plaintill', and issued a ti. fa.
tlicremi, ami afterwards by an iiistriinieiit under
wl iluly released the plaintill' therefrom, yet
tbt ilefeiiilaut maliciously caused the sheriff to
lieizetlie plaiiititl 's goods under the writ, and
jwrnilil nut direct him to stay, so that the plaiu-
t'lwas iihliged to pay a large sum of money to
Irebse them. Plea, on eiiuitable grounds, that
[liter the recovery of said judgment, ami before
Itlie release, a ti. fa. was issued thereon : that in
lijiwraiue of t!ie issuing of said writ, and believ-
jiBS that all the costs on said judgiiient did not
Itsa-cil i% "is., defendant consented to refer all
patters lietweeu hiliKself and the iilaintitF to
lirliitriitiiiii ; that the arbitrators awiirded that
jtlie iilaiiitiir should pay defendant .t'iO'i, and
ilmuU alsii pay to him the said costs, which
(ylielieveil amounted mily to td ."is., and they
Hitcoteil that sum to be paid, in ignorance of the
fwtthat said costs, with tlie sheriff's fees, in
»th ammiuted to ,l!15 : that it was the inten-
j'lii »f the arbitrators that all the said costs
I favour, and as >
Isvibmissiou ot \
Declaration, that defendants having recovered
judgment and execution against iilaintiil" ami
others, plaiiititl' ami said others paid .iml satis-
lied said jiulgment debt, except a small amount
not exceeding aiiout .S-tt ; yet defendants, well
knowing, kc, and notwitiistamliiig the small
amount due, but contriving and intending to in-
jure and aggrieve the plaintiff, thereafter, to wit,
itc, wrongfully and 'iijustly, and by pieteiice
that there was a large amount due, to wit, kc,
caused the sherill' to take and seize cirtaiii
gooils of great value, to wit, itc, of plaintiff's,
and to make thercont S'JOt) : — Held, on de-
murrer, bad, for not alleging that the act coin-
lilained of was done maliciously, and without
|)robable cause. I'liitiis v. Jlroi'-ii d ot., 'I'lV.
v. 3 !.■>.
3. I ■■'■■< 1 1 't 1 1 ij Afiiiiliiiii iil.i.
(a) From Siijii rior t'mirts.
Declaration, for maliciously causing a steamer
of the plaintiffs to be attached in the I'uited
States, alleging that the suit had been deter-
mined ill favour of plaintiffs. I'lca, that defen-
dant apiiealed from the decision, wliirli aiipeal
is still \icnding: -Held, on demurrer, plea
good, (h-'ifilh i/ ol. V. ll'<ov/, '20(i. B. 31.
Declaration, that one I •. caused an attarliment
to i.ssue against the plaintill' as an absrcinding
ilcbtor, and that defendant, in order to i-nable liini
to obtain an older for such attacliinint, falsely,
maliciously, and without reasonable or probable
cause, iiiailc a false atlidavit that he had good
rc.isou to believe and did believe that the plain-
till' had departed from I'ppcr ( 'anada, with in-
tent, itc. It w:is objected, in arrest of judgment,
that there was no averment that the attachment
had been set aside, nor that dcfcHilaiit had m,
reason.ible cause for making the allidavit, or for
his belief ; but, Held, that the tirrjt a\ ermeiit
was uniuccssarv, and that the other was suHi-
ciently made, after verdict. Fii/n i/ v. K'nuiali/,
•JS Q. B. 301.
The first count was for maliciously making
atlidavit of debt, of the plaintiff's iusolveiioy,
and of his intention to reinoic and dispose of
certain goods with intent to defraud defendants,
and thereby procuing an attachment, and the
plaintill' to be ileclared an insolvent alle^ng
piiU he paid by the jihiiiititl", but neither they . that the attaehmcut anil proceedings were after
220:5
MALICIOUS AllllEST, PROSECUTION, ETC.
wards set iisido. The secoml count was in tres-
l»(i8s for si'iziiig jil.iiiititr's godds : -Hulil, lis to
thi; first, count, tliiit the jittiiLivit ot' defenihints'
agent as to tlie removal of tlie goods not lieing
corroliorated l)y two witnesses, as rei|uired l)y tlie
act, «as no olijeetion, tor liy tiie form of action
the |ihiintiir conceded tin; jiroecss to have licen
legal, and relied on its having lieen issued mali-
ciously. On tiic second count, the jury were
told that if the attachment had Ixtcn set aside,
the iilaintill' was entitled to a \eriliet; and the
1)laintiir ohjccted that as the setting aside had
)een iiroved, it should not have hccii left as if
open to iloulit. The jury having found for
ilefendants ; - Held, that the charge was unoh-
jectionalile ; and as on the evidence nominal
damages only wonhl have Keen sullicient, the
court refused to interfere. A'al'iii \ . 'flu dure
JiuiiL; L'7 I,'. B. 4'JO.
(l)j Fruin Dirh'nia Cmtrt.
Tlcld. that the jury might with in-oinicty in-
fer malici; from the fact of the defendant having
recovered a sum less than that attached for,
unless satisfactorily accounted for. I'nlh v.
Kfitmij, 1 1 Q. B. 3o0.
In an action for maliciously suing out an at-
tachment in the Division ( 'oiirt, it aiipeared that
the defendant, when he made the allidavit, was
aware that the plaintitl' was then actually in
jirison. For the defence it was shewn that the
good ..tt:\chcd were eventually sold tinder exe-
cutions against the plaintitl', and tiiercforc no
Hulistantial damage was sult'cred. The court,
Lowe. cr, refused a new trial on this grouiul, tiic
V'jfdict lieing small. Otn us v. I'lnrill, II (). 15.
31)0.
In siK h a case it is in'opcr to charge in the
declaration that defendant had no reason to he-
lieve that the iilaintitl' was ahout to ahscond.
fro'ii the iiroviiiee of Canada, not the I'luier
province only. ///.
Defendant having sued out an attachment from
the Divisiiui Court, and seized under it certain
materials emiiioyeil in rcjtairing [ilaintitl s vessel :
— Held, that such attachment could not he war-
ranted hy any intention on the iilaintill's part
to remove the iiroiierty, the statute rcc|i;iring an
attciniit to remove, 0. S. U. C. e. l!l, s. liM> ;
and there lieing no eviileiice of such an .•utempt,
or of any rcasonahle ground for supposing it to
have been made, that the defendant was liahle
for issuing the attachment without reasoiia1>lc or
proiialile cause. Iluud v. Cuiikritr, •_",) (j, B. <IS.
A count for malicitiusly attaching for !*!M),
when the plaintitl' owed defendant only ?<'J'.J : -
Held, gooit, without shewing, as in the case of a
ilistre.ss for rtMit, that the goods were sold to
satisfy mure than .*2'J. ///.
Defendant had claimed .'*74 for rent of ship-
yard, which had been disallowed by the Division
Court. 'I'hu evidence in sujijiort of the claim
was, in substance, that after defendant had
worked on a vessel being repaired there for
plaintill' for some time, a dirticulty arose between
him and the ]ilaintifi', in eonseijueuce ot wiiich
he refused to go on, anil the plaiutitf desired him
to do nothing more. The vessel then remained in
the yard for more than a month, until the plain-
till' got her ready to launch, defendant having
notilied the plaiutilT that he must ]iay ivn
advance ; but there was no evidence of iiiiy
ting or agreement :- Held, that on these f
the jury were warranted in finding that the
fendant had no reasonable ground foi- att;u|
for the rent. / li
j 4. Other Ctitiit,
Case against the mayor ot a municipal cmtr
for tiiat the council in session had rcsdlviil
dctcrmincil (not under seal) to dcnii.se ecu
land to the plaintill', and that he was wiiliii.r
oU'ercd to acceiit, ite, ; and that the run
while in session, and defenilant luinj niin
did instruct and order him as such mmvit.
and oil behalf of the council and in the ii.um
the council, to make and execute tiie Kasf
which he had notice, but whicli he iiialii im
refused to dn, though thereunto rei|iicsti:(l
Held, action not maintainable. /'(((;• v l/m
U C. 1'. 484.
The plaintill's, the municipality of Kast >
souri for K^.'iS, by their declaration after all
iiig that the defendants were tow usiiiii cii
cillors for lOast Xissouri during |s."i(|, tlial
commission )vas issued under Vl \'iit. c. hi
LSI, toeiiiiuirc into the linancial allairs of •
townsJiip, and the commissioners li,;d tliL-rd
and by lorce of the statute, all such powiis
by law arc vested in commissioners uiicici- II \'i(
c. .SS, and .veie by virtue of the said ciiiMiiii.i<s]
and of the said statute empowered to siiniiii
witnesses before them, and re(|uii'e tlicni to !r|
, evidence, and produce such ilocunicnts :is t
! commissioners sliould deem rei|U'site : ,;iiii tl
I the commissioners, in pursuance of tlicif m
powers, ii't, and summoned tiic dcfciiilants
. witnesses to ,!ive evidence on oath, and iiivdii
' certain doeuircnts which the .said criiiiii.s.sinii,
(leemcd • ciiuisite— charged that defiiidi
contriving uid maliciously ir.tendiug to (lll^t^
I and delay the commissioners in the dischai'.
their duties, . ud in making the said cii.|ii
[ and to cause great damage to the plaintiti-
reason of the exiiense._. of said coiiniiis>.i(iii,
and to obstruct and delay them in nbtainiiu
evidence, and to prevent the piddiictiuii dt
docume.its, wickedly and maliciniislv aiin
tl jmseb es did conspire, contrive, cdiituiior
and agree together to obstruct ami d
commissioners in making said emiiiiiy, aiiM
cause great expense to the plaintitis by \\m\
ing the costs of said commission, and to nlisti:
and [irevent tliem from oi>taining said cviiku
and to obstruct an,l delay the piodii ■ti,.ii .,r .,
documents, and prevent and hi.idcr tin
enijuiry. And that detVndants, iiialiiii.u|
contriving and intending as aforesaid, ait.l
wards, and in pursuance of the said cmijiiii^ul
&c., refused and negl'.'cted to atteinl '.iru tl
said commissioners as witnesses, and "i i,i|
evidence to them, and to produce the .siid
meiits, iilthoiigh defendants luigln, and mitll
and ought to have attended and givm suf
evidence, luid produci'd .said dociumiitii ; a|
did procure one N., the ■ lerk of said iiiiluiJ
pality, and who as such clerk had tlii' cu>tM|
and possession of said ilocuineiit.s. t<i|iartwi
the custody and [Mmscssiou thereot. ,iiid to cnj
ceal or remove himself, to avoid Wnv^ m^
moned or attending ivs a witness hel<>n
commiHsiunvrs, and to obstruct and dday
ETC.
2204
220')
.MALrCIOlJS ARIJEST, F'UOSECUTION, KTC
^.200
that \»e »nist v.xv ivi.t u,
jlcl.l, that uu tlKsc ia.u
e.l in tiiuling tluit \\w .Ic-
lablc
.rrtiu"
,\ fill- ilttin-liiu;.
..^yorotamuuicnaKnn.Kil
?«cssu.u Ua.l .-.sulvcl aiul
,ler Hcal) to .Icuusr ..vtaui
\vuathatla.\vasvv.lluri;a,l
t ' . au.l that tU. .•..>..>.■,,
;,{ Ikfuiulant 1;H»^ "'^'v--
: er lum an mkU uuyor. ., ,
;, cmnoil ana in tU. n:nuc „•
^c aiul oxocutc til. Kas., ..•
^, imt xv\.icii he ,..>h..nu^!y
:"uutauuvhlc. i<-v. .1/
th. umuicivality of Kast Ni-
thoiv .lochu-at.ou at,.,- uU, .
^^'''"f "line U a^i-,' tl„
^e statute, all such V"^ ^1--
Uut-oiu ^ e,,muii>^i"'i
,^s^.uaW,uuvth..u.t.,,J
,i.:hu; such 'i>->'-':^^,;^ ;
^"^!"S.Sr that acfwuluv
..4- .l'ltUil''0 t" l-ii'L I . .
rveat aaui.i^^^, ^^^.^^ ^.„„,„„ssu.iur>,
It aua au. I, t ;,_,,,, ,,,.
r^'"uv ana uuauiuusly an,,..
l thLV to ohstruct ai.a uc...; tk
V, of sauiaoou^^ Ji,,,
I,ve huuBcU, t' ^^ ,,^,„„,, a
piiiihiction of saiil tlocunieiitM huforu tliuiii ; ami
iliil othorwiMO procure tlie M.tid ilocuineiits to lie
cdiu'oaled ami kept coucual(Ml froTU Maid coui-
inissioiiurs -wlioreliy the said i'ni|uiiy was hiii-
ileivd aud delayed, ami the plaiiitilVs were iu
cdiisciiuence made liable to pay K'MH) over aud
[iliiive what tliey would otherwise iiavc liccn
compelled to iiay, if it liad not l)een for said
acts aud oomhu't of defendants ; that the neces-
sary expenses of executing said connnission, as
nriivided l)y the statute, would not have ex-
ceeded f.")0, except for such uulawfid conduct of
defendants ; Imt in consei|Ucuco and hy means
thereof, and of the premises, said exjienscs
auiiiiuited to t.S.'tO, and the same Were, after the
exet'iitiou of said commission, and Keforc this
suit, settled and allowed l>y the I iispcctor-( iolie-
r.il, accordinj; to the statute, at L'lioO, heiiij.'
tHIH) more than would otlurwisi' liave hcen
iiRiirrcd or allowed, and which said sum the
iilaintills had paid to said comniissioners licforc
the cdiiitueiicement of tiiis suit. r|ion demur-
rer: Held, tliat the declaration was ^aiod.
That although a ease of the first inipression, a
'round of action was shewn, there heiii'' a
wimiuful act done hy tin: defendants witimut
any reasonahle cause, and legal damage icsulting
tilth" p'aintill's. As to the various olijoctions
taken: 1. Held, that the d:image was sutli-
ciciitly stated, and was a legal damage, being
iliivetly occiisioned by the act complained of, ■
2. Quale, whether the ileclaratioii could bu
tlken to allege that power was given //// //c
fiiiiiiiii'"'i"ii to suniinoii witnesses, ^;e. If n<it, '
til.. .|iiiiiiiissioners would liave iii. such power.
-if, Held, that it was suliieieiitly avirrcd th:lt
iloti'iiilaiils acted niidieicuisly, and without rca-
...iiialile 'ir probable cause. 4. That the I'aet of
tlieciists having been allowed by the Inspector-
Ciiieral at l!3.")(), was no answer to the charge j
nuiie against defendants. .">. That it was un-
iitcessary to aver ihat defendants liail been teii-
ilcred their expenses as witnesses, there lieing
11(1 iiviivisioii for such paynieui. (i. Or that the
eviileiiec or documents rei|uired were material.
'. That as upon the whole declaration gooil
grinir.il was shewn to sustain an action on the
tase, it loiild be no objoeti ni that a conspi>'acy
WIS allejjed, and that the facts stated would n<it
wiiiiiirt ail action fiu' conspiracy. S. That de-
iuUikiits must be treated as being charged as
iiiihvichials, not as acting in tiieir capacity of
Ciiimeilhiis. Miiiiinjiiililii (iJ'IIh 'l\iirnslii/ini' A"((.<'
.ViA<»ii/) V, Utirmil •>!! ct III., Kitv*. H. •'>.'>l>.
A writ of replevin having liecn issued by
iletciithuit against plaintiti', under which ivrtain
llniiiks iif acco'.i'it were seized and given to ile-
lienilaiit, the plaintiti' some time .iftorwards
Itiriiuglit an action fiu- damages, contending that
liletciiilaiit had maliciously siieil out the 'rit
ltd iujim' him, claiming large <lai\!iigt's; The
Ijnrj- t'liiiii.l for the plaintiH' t'80 : Held, Ihat a
liuitiiv taking legal advice upon u (pu-stion of
llaw ami acting therooii apparciitly bona tidi' is
Itnt res|iiiiisihle ; iku' can an action for maiici-
Iwisly taking such jiroceeding be successfully
|}nw.iiti.il against hiMi. Per Iticluuds, .1. -The
pitih. t Wdidil havi: been set aside for excessive
fliages, if not itherwise. Cniicf'ur'l v. M.'-
U.I., !IC. 1'. -.M."..
IV. lirst cmint idieged that the jdaiutilF was
" li'itil ke(.per at Niagara Kails, and furnished
iniilcs iuul ilruiMuii tu |)ei-M,ins going under the
Kails, and by consent of the < loveninniit had a
stairway for visitors dnwn the bank of the river:
that the defemlaiits alsci had a st lirwav for the
s:ime jiurpose : that the plaiiitill's st liiway h;id
been burned I'lown, and w liile he was reliiiildiiiL;
it the ilefeiulants, eimtriviug to injure iiiiii,
falsely and inalicionsly, ainI without reasmiatile
or [U'obahle cause, reprc.sinted to tin. attorm.y-
geiier.d tiiat the lainl on wliicli the ])laintill"s
stairway was built (« liirh Ik. longed to tlie crowin
was necessary for mili'^.-iry purposes, and that
the land on top of the bank was reipiired fo>' a
highway, and had so lii.en used for many years
by license from the iroun, and th.it tli(. plaintiti
li.ad wrongfully intruded nn said land, and had
begun to excavate and destroy the clill at the
t<ip of the bank, ri.ilueing the widtli f the road:
and thereliy the dcfciidiuts indu.'cd the attor
my geiierd to permit the use of his name in
tiling an information in Chaiieery to restrain the
plaintiti', and oht. lined an injuintion to restrain
iiini, troiii iiiterr'ei'ing witii the liank ; whereby
the plaintill' was delayed in com[iletin..' his stair-
way until he obtiiiiied a liceii-:e from the crown
so to I'o, and lost the ]irolits of his liu^iness, iVc.
The second count alleged that the plaintiti' and
ilefeiiilants were both eiigigeil in furnishing re-
freshments and ilresscs to persmis wishing to go
under the falls ; that tiiere was a certain public
st^'irway for such persons down the bank : that
the defendants intending, iti.., to injure the
lil.iintil)', falsely and maliciously, ami without
'■eason:il>Ie or probable cause, represented to the
public wishini' to go down the stairway that
they liad a right to prevent them, and forbade
and refused to allow tiersons wearing dresses
furnishcil by the |ilaintitr to pass dow n.^iy reason
whereof hundreds of ptrsons, who ivould have
procured dresses from the pl.iiiitill', were forced
aud oliliged to get tiieir dresses friilii the di'fell-
daiits, and the (il lintitt' lost the )iiotits <if hiiing
his dresses and selling relreshiiients, ,Vi.. : Held,
on demurr.'r, buth counts bad ; fer a^ to the lii-st,
iioac;:ion would lie so Imig as tile ilei.ree in ecpiity
cniiined in fcuve, notwithstanding tlie .subse-
ipieiit license from the ci-dwii ; and as to the
seeiind, it charged no violation of any right of
^ t!ie plaintiti', nor the maliciously procuring the
I breach of any eiuitract with him, and it there-
' fore sliewe<l no eause of action. /)iiris v. liiirmtl
<l III., -Jli (^). li. lO'.l.
Plaintiti' sue.l defendant for having caused an
appearance to be entered for the defendants
in an ejec;nieiit, brought by plaintiti' against
tlieiii, for land assigned to plaintill under pro-
cess issin"l in an actiiui of dower against this
defendant, alleging that he had done so w ilfiilly,
wrongfully, and without the eoiis' iit. know ledge,
or authority , if the defendants, but not ch.irging
malice or want of n.asonable or probalih' eause :
Held, on clemurrer, that the ileclaration was
bad on this ground. Semlile, that ilefendant and
his attorney would, on a such a declaration, be
liable to defendants in the ejectment suit; and
that the defendants tlu:rcin licing worthless, he
Would also be liable to the plaintill' for the costs
of that suit, on a summary ai>plication to the lourt
inaile therein. Fislm- v. Ilulil'ii, 17 (.'. I'. 3i>.").
I'laintitls manufactured in .Montreal mune Old
Tom gin, i^'e., which they sold and shi'|iped to
(i;iel[iTi to .1. it H., no iiermit accoiujiaiiying it.
The casks were branded as if manufactured in
1 London, I'lugUiud ; but the invoice received by
■!, ■
■2-207
MANDAMUS.
tliL' coiiwigiici's fidin the iiliiiiitiffs, ami liancled
ti> tlie ollii'iTs, bIr'Wi'iI tliiit tliu goods came from
the iihiiiitiH'H, ami dewcrilieil tlie iihliiititfa as
distiller.-*, &e. Tlie defendants as otfieers of
inland revenue seized and detained the gooils for
want of a jierniit, l)ut sulwenuently, upon its
beini,' shewn at < >tta\va that the goods were
nianufaetureil from spirits « hieh had paid ihity,
they, hy iiistruetions, oti'ered to release the goods
on ]iayiuent of eosts of seizure : -Held, that,
under the eireninstanees set out, the defendants
had reasonable and (irolialile eanse for l)elieviug
the goods were lieing unlawfully removed, and
for seizing them ; "J. That tlie seizure being so
justified, and no permit obtained, the refusal to
deliver up, exeept on jpayuient of eosts, eould
not make defendants liable. H'iiiiiliii/ v. d'nir if
III., 32 Q. B. 528.
^tiii /)„l.l,ili, V. l>i,;„r, -2,-, C. T>. 18, ].. 2I8S.
See also liiijiliiir V. S/n/i-i/, 14 V. I'. 27(5.
[Other Malicious Injuries to projurty
Cki.minai, L.wv.J
MAMClors I'1!()S1X rTI(»X.
S" MaI.IiIiiIs AkufsI-, I'HOSKClTKiN AMiOriIF.lt
I'lIoiKKlUMiS.
MAIdt'lorsi.V iX.iriilNC I'liol'KltTV.
(^huere, would a complaint against A. 15. that
he " was seen in the act of destroying or injur-
ing jirivatc pro]ierty," without alleging tli\t the
property lielongcd to niiiilln r person, or th.it the
act was wilfully or maliciously done, authorize a
warrant as for a malicious injury to jirojierty
under 4 & ,") N'ict. c. ;)(>. I'mri II v. ]\"i Hill III Ki III,
1 (,>. 15. ir)4.
On the 8th No\cmliei'. I,S7">, an information
A\as laid against It. lietore tlie police magistrate
of .St. Thomas, by one .\., uniler the .'{'_' A 'X\ N'ict.
■-'. 22. I)., for havini; unlawfidly an<l maliciously
1 roken and injureil a fence round the land of N.
The defence set up was, that tlie feiic(' encroached
upon H.'.'i land, but there was c\ iileuce which, f
believed, went to shew that H. did not coini'iit
the injury under a bona tide exerci.se or belief of
.n right : iind the magistrate coiivicUil ,ind lined
him. H. .-ipiiealed to the general sessions of the
peace, where neither siile asked for a jury ; the
i-iurt urged them to h.-ive one, but the respond-
ent, N., refuseil ; and tln' cr)urt having heard
the evidence, decided that H. acted, though niis-
takeidy, under a bona tide belief that he had a
rii:ht to remove the fence, and without malice :
anr they ordered the co.ivietioii to be ouashcd,
with costs. N. then applied to c|uash this order,
upon the grouiiil, amongst others, that the case
could not be tried without a jury ; but : - Held,
that the S2 & :« Vict. c. '\\, s. (i(i, I)., which
authorizes the court to try without a jury, is
within t'.i^ powers of the hoiiiinioii parliament,
and thac the case having been ]ii'opei'ly before
the sessions, this court could not review their
decision iijioii the merits. Sec. (ili of the 'A'l &
',VA ^'ict. c. 22, docs not disjiense with proof of
malice in such I'ases, but, read in connection
with sec. 2!l, merely means that the malice need
not be conceived against the owner of the pro-
perty injured. Itujiiin v. /irnilx/niir, ,S8 (/. H.
.'")(i4. (Iwynne, .)., sitting in vacation. See .S'. ('.
before the Sesaions, 13 L. J. N. S. 41.
MANDAMl'S.
1. WllKHK IT LiKS.
1. diiiri-ollii, 2208.
2. W'lh ri- tliii'f U amillii r Hi nmhi^ ^'jo;
.S. '/''/ Kri rrixi /)i/<rri lliiiiilii/ I'linrl',,
2211.
4. To Dilinr II ji l)in-iiiiii iilx, 2211.
."). Ti> /fr/iilir III- Itilillilil //lii/iinii/^ I
/y;"/;/f.S 2211.
1' To Cor.siv on Division ('ori;T,|||„
ol! OlIIiKKS, 2213.
111. To Skssions, 221.").
1\'. To .Ii sri( j:s ok the I'eace, 221.'i.
y. To MiSICII'AI, CoUroItATIoNS A\l)(((
IKIIS.
1. liliii'niH of Miiiilii I'H mill Oiliii I* 2i
2. AMiitxiinntx, 2217.
3. To Trt'dKiiirr to jhiii iiidiiii/^, 22 1 '.i.
4. nihil- Cn-^rs, 221!).
.">. TiiLirilSfliiiiilliillif V. ( I'lililii-Srini.
(J. To jlllXH Jil/-lll!, S or insllr illlifulf^
in iiiil of Hiiilii-uiiH — Sii Kaii.w
AM> IfAll.WAY t'o.Ml'AMKS.
V|. To I'rill.ir CoMTANIES.
1. To /iiijiitir Triiiixfi r i,/ S/uii:<, 221
2. Tit Aji/iiiiiil A rliilriifiii; 2220.
(a) For injur;/ III /'rn/ii r/i/ Si, ];.(
WAYS ANI> KaiI.WAV C'o.MlAM
3. (Hliii-1'iisix, 2220.
\ II. To I'riii.K Okkickhs, 1221.
X'JIl. To Sciiooi. Tur.sTEEs — .s'.v pi i
Schools.
I.X.. To 1'ki;i.sti(aI!.s -.Vm ItF.tiisTin Laws.
\. |)|.MAM) AM) IfKKlSAI., 2221.
XI. Wkit ok.
1. ll7/.< iiiiiij All/ill/, 2223.
2. //'■■Mil of, 2223.
3. AffiiliiriU, 2224.
4. Iliiir Diriiliil, 2224.
,"). lliloni III, 2224.
XII. Costs, 2224.
XI II. i:Moi!riM; iiv AnA( ii.MKsr, 222.".
SeeC. S. r. ('. c. ,.'..'; .'.s' Vi<l. c. IS;.;;
I. AVllKKK IT LiKS.
1. <ii III rally.
A mamhunus never issues exceiit tu inliiiij
restore some jicrson to an ascertained iij;lit.
; !■<■ Ituriiliiirt, ") O. S. .'>07.
A inalKlaniUH will lie to eom]ieI a witiu'.4
' prove the execution of u deed, and iiiiiiinriill
I registry, livijiita \. O'Miarii, 1.")^. li. "JUi.'
•2208
,jurio8 to i.r..l.t;rty
DAMVS.
!'208.
;„ „iii,thi I-
I,. lJ't-«-i
.„,;
.,„ DIVISION e'oiKr.lii...Ks
. KUS, iilS.
i, '221-''-
,,„.C'ourou.vn..Ns AM'<"K,.
,,,• j^.,,,/,,, •...»./ o/i;- ''--'''•
.M..,r,•^';'".'/''"""'■"^•--'■•
.School It'll' ■' '•'"'
' ii,i;iii-'i!i< •'^"
,1 of
H\ll.\\A^«
IlCtiMr.vNIK.S.
!/'■'"
,,,,. 7V(wi.<>
,,/■ Sliiii'
l>t""
I'oi- ill,!
int A I
lira
AVS AN1>
to /•»•"/'
•i-iv.y
I'.Ul.
llAll.'
\Y l'ii\irASU>
Cd.v
•J'2'20.
i.u
OtFU'V-H^
\-2-2\.
Iiiooi.
iil.S.
TiaSTF.K>
,riiM(^
_.SV. lU-.t;isiiiN
I'tliU''
l.^^^^
ASl'
llK.HSM.
•2'2-2l.
•'J
ll,"-il-
nil
,111 Al'l>'!h
.hi, 2^^:*-
I ■2'2-24.
■II I",
2-2'2i.
■IMl
IlY
AivA>
11 M I'M, —
2iO!)
MAN DARIUS.
.'i>10
A Hi\» (((iiiiiiiiiy iiu'in'iKHMU'il umk'r ('. S. I', c. ' suit iTohalily l>fL'U l)ai'rocl liy lli \'irt. c. !)!>, sor
IM, liiivinj,' made a Lli;u;,'e tnr ii Hiifi'iiil illiiinina 10. J'tiihinv. Tlndnnl II
/.'. ir
tmii, winch wan iiisi
iUmI,
ictiisuil til MUjiiily j{aH
V. v. 4(i2.
14
t(i till! saiiu' |iri'iniso,s for iinlinary imiimsos until
tlitir i.laiiii iiail l)i'i'ii paid :--Hflil, that this was ' ,
\ inandaiiuiH to comiiul a County ( nurt to |
t juwtilicd, liut lliat a iiiiiiidanius
not ,1
l.l
not
til ;in action was refused, among otlier
lie, as the statute imposed no duty ; and that
the only remedy was liy action. In re Tin- Com-
reasons, liecause the applicant liad a renicdy hy
appi
M,ij,,:-i it III. V. /;.(/•. i\ I'll (,). li. Ill
iiiini"
I liiiiik of Ciiiiiiilii (lull till' LoHiloii UkiCo.
•20 (,•. n. -2X1
See I'lijiiiii V.
iihoii 1
./• Ih-
11 f. V
sh
rpou an application for a mandamus to a town-
•p
iriMiration to make
cliver to trustees
certain delientuics for •S-.'i.OOdauthori/ed liy t
wo
0,.), 11.
;:!.
.'N r;w. I-'
IS\
1. ^VlIKKE IT
I. (,V|1H"(I
lUM
jiever is*"*^^
hicrson
O. S.
to a*.i
r>o".
LiKs
U'J.
a eN>'*
i»eertaine
pi
to ;i'
ill
\\W.\ '
lius w
ill lie to eomi
^■1 a witiKt*
i;Utloll
i/i/lK V,
ot a
Aeed. an.
\ llllUli
i/M'Oi
\:>^i
11. -Joi.
liylaws i)f the corporation t;i-,intini,' aid to a rail-
way company, it was argued tiiat the company
hail lost all claim to .T^IS.OOO, if not to the whole
•2. Il7/r
til,
iiiiollicr Ifiiiiiilii.
of the lionus, 1)V luii
.il. On till
icommcncement i
tl
if th
le other hauil, the company conteii-
Where lands were sold for taxes, on the 1st ''i"' tl'^i*- ''.V i^'fitaiii agreements with the c<u'-
M;iivli
uWlle
■ rllt.
is:t(t, am
th
Kst March 18:} I the poratu.n.
1 by .several statutes, extendi
r p.aid the piinha.se money and twenty jter
"g
the time for comnicncenicnt, their riL'hl to the
.<iocs, as icipure
.Icpnty sli
-urcr then
crill', who CI
I l.y the statute, ti. the deheiiturcs was preserved: Held, that such
ted taxes for the trea- '''.s-'lit, dcpeiidini; upon mattei'sof eimtr.ut, shinild
in such an ajiplicatioi', Uut
• discnt, and a short time afterwards
lot lie ilctcrmiuci
urchaser denianilei
1 a deed from the sherill', ''.V "<"'; '" *'"' ordinary way ; and the appl'catioii
fused to give it the court refused a ^'"** discharged with costs. /» /•- //(,■ /.,,ii,l,
~ _ // III. II tl' , I 1. 1.. .
iiwnil:ninis
to com
pel him, stating that the
III', 'II, ,11111 iiiiii-i
I n
iiwncr
«as in time, and if not, t
lev Won
d le
the I
irrliaser to hisaclioli. In n Sin rijl'oj' .\i
II, />;.■,> n,-t, Dra. ."lO.'i.
//
till' 'riiini-<li'iii (ifi'ii.it Will
See, also, /// /•« Xoitli Si
Villi of Toruiilo, 3f> Q. H. 101.
1 1 ml fill Ci
il ,,/•
.lAi/.i/.. ;«!(>. 15. '.a
/.'. II'. <■
,1 tin
■'It
A]ii)licatlon for a maudamus to deliver tn
liiaiit has no other specilic legarremedy. not trustees certain dclieiitims for a railway lioiius
.\ iiiaiulamus wi
II
.'rantc
only
ly will
th
where such remedy exists, Imt is unproductive.
//iii/Zii - V. Miilnol lilt. Co. of Siuraxtli, XWij.
H. I.-.:!.
I'er Harrison, ('. .1. The whole iiijittcr was
one of contract, and the
com|iany, it en
titled til
ic writ was refused therefore against a m,,!
Tl
Mutual liisuraiiic < 'oinp.aiiy, to comi.el them ti
l«.v
the delieiitures, had another reiiudy, either at
law or ill eiiuitv, w liich w oidd he more cunvenieiit
a])prii])riate than a writ of mandamus.
Ill
a olaiin, the ground of application lieing tli.it f ■,
Striif/oi;! nil, I tin llii
I,'.
,1 Tin
tliiy li;»d no ri'al or luMsonal property w hicli ] [•_>
P
I'linriitioii of th,' Ciiiinli/ of I', rill, .'!S l,>. I'l
tmilil lie taken in oxeeutioii. //<.
As ,1 u'eiieral rule a iii.'.iidamiis will not lie
;r,iiitiil unless 'he aiiplicant has iiii other specific
lti;;il reiueily. S,liii"l 'I'lnil, i\ of I'jlj lir v. 'I'ln
I i\„IH,rnlion of Kl'jiir, 1'2('. P. .")48.
The alH lavits stated that M., who claimed
1 lilt iilliec of registrar, olitaiiied ,i iiiivndannis nisi
I iliniteil to H. to deliver up to him the looks
I m.l [lajicrs ; that he went to the otiicc with two
I (Miii'talilis, in II. 's aliseiice, and demanded them
III liis wife, reading w hat purported to lie a
hiTHiiilitory mand.-uiHis as his authority, liut re-
liiMii^'tu allow her or her solicitor to examine it,
|>ijiltliat they then took away the Imiks, &c.
juiii these altiilavits the court granted a rule
|lii>i tnr attachment ag.iiiist M.. Imt refused it
jwiiht the ciiiistaliles, there lifing nothing to
libi« that they were aware of the fraud. .\
Inilv iiir an nrder to M. to restorer the Imoks, itc,
iilitaiiied was refuvd, .is II. might iiiing
r.ri^|i:i.-><, I'laiiiiiiig a inandanius in the action :
Ijiiihvlure full ri'dress can lii; had liy an ordinary
Imit iinilicatioiis for summary remedieM should
iMlif I'liniiiraged. A writ of reiilevin had pre-
iMiiihlv lieeii refused. //( cc Mrl.iiii it iil., "24
|i,'.l!.:i4.
naltl
l?urton and Moss, .1.1., on appeal from
the aliovc judgment. The aliscnce of an ade-
;piate leg.il remedy is a sullieieiit ground for
granting a writ of mandamus, notwithstand-
ing the existence of an eipiitalilc remedy : and
since till' Administration of .Insticc Act, \H~'A,
the ajiplicant for such a writ should succeed on
diselosinga ease which would entitle him to re-
lief in eipiity. Per Moss,.!. This w rit is not
now invested with any iireroi,'ative character in
this I'riiN iiice ; and it would lie a convenient
rule, upon applications for it, to act uiioii priu-
eijilcs similar to those which govern a I 'mut of
Ki|Uity in suits fur speeitie perfonnance. /'/.
Remarks as to the remedy liv maiidainus', and
the etlei't of there lieing anotiier remcily avail-
alile in eijuity, though nut at law. Sciiilile, that
it'is the iiiailcipiaiv and not the mere alisenee ot
all other legal remedies, coupled with the dan-
ger of a failure of justice \\ithout it, which must
usuall\ determine the propriety of granting or
refusing the writ. In r, Tin lliiinilt,,n mnl Soiil,
Wintirii A". IC. ''(). ,(//(/ Tin Aliliiiii/iiil Coiiin-il ,if
till ('oi'ltonition of IliK Coilillil of lliilloi\ iSlK,*.
H. '.in.
See F,l,i-li,ni Donnl of I'nin,' uf lh;iiknlli , .T
Hi'M, that the jiroseeutors were entitled to a (>. .>^. I7.'<, p. ■2'2I7 : l',,iiii" v. Iloiil- nf I'/i/iir
iiilaimis miller "20 N'ict. c. I4(), to tlieti. \\. Ciiinnln, .'> I). H. XiS, p. ''ilT ; /{njina \\ Tin
til appoint an arliitrator to determine M,iiior uf tin Toirn uft'orniroll, ■2."t (,•. H. '2!t3, p.
If i.iiiiilieii.satiiin to lie paid, tliough they might '2'2I7 ; Kiiiin or innl tin (',irji,ii;iti,ni uf tin <\niiiti/
iVt Miliiiiitted their case to a jury as well nf Iliililinnnnl, 'M (). H. IV.IS. p. ^'l}'! ; In i;
til .uiiitratmn had they so chosen. .Senilde, t^hiin nml tin Tr<ii>iiiri r of /hin,l,i.<, '2m). H. ."WS,
it the ceurt Would not have interfered liy p. ■2'21S ; A'r Mi-lhnmlil ninl Th, Moil I'riiiliinj
.wImius had iiiit the pnmeeutorH' remedy hy , Co., ii P. U. Wd, p. '2'2'2(),
I.T.l *•
mil
M
tri'fH, 1111(1 uiiH iiijiin'(l (III tlif way I'y the wagu<>ii
iipsettiii;,'. lie was tiiki'ii to tlui tnviTii of M.,
Ill tlit^ tnwiiHliiii of Kolio, wlioru his icj,' was
aiiijiutatcil, anil lio rciuaincil scvi'ral nioiitliH at
M. H fxiii'iisf, ileKtituU- and lii'lplfMS : Ili-iil,
that the I'oiirt liy niaiulaniii.H coulil not ooiiiiiul
tlio coi-iioration to jiidvidc for his ix'lief, the
jiowcr to ilo so lii'ing ilisiiutioiiary. /// c Me-
l)iiiiiliilt mill /Jir < 'iiriiiinitiiiii uf lln '/'nir,in/i'ij> n/'
l.tjin, •-'! t^ H. S(».
The issuing; of a warrant of idiimiitnient,
untKr ;<•_' & 'X^ \'iet. c 'M, see. T-"), is ilisfivtioii
ary, not coinpuisory ii|ion a jiiwtiee of the peace ;
anil the court will therefore on this ^'louiiil, iw
well as u|>on the j,'rounil tliat the party touglit
to ))e coiiiiiiitteil has not lieeii inaile a p.irty to
the application, refuse a nianilainus, if tliis lie
the proper reiiietly, which in this case it was
lielil not to he, l>ut that the application shoulil
have been uinlerC. S. I'. ('. e., I'2(>. sec. H.
In n Diliimii ami MvSiil>l>, •_'! C. 1*. ".(IIJ.
Seo He Jiiiiiiii/ori/ Lim- liifirnn /'Juslmi mul
Jiiliiisloini />i.ilrir/i, M. T. (! Vict., p. lilMo ; A'l
Ciiid/iii, 'M i). n. ICO, p. -'-JKi.
See, also, I. 5, infra.
4. 'I'll l)i I'mr up Duniiin ii/x.
Mantlniiiiis jjranteil to the clerk ot a Court of
IU'<[uests to give u;t the hooks ami papers of the
court, on lieiiig iviiioveil froiii olHee. In n
Lttn-oh; 4(». S. :W!».
At a session in (ktolier, IS4ti, A. was elected
oy the district council treasurer of the' district.
\Vhen elected, A. was himself a ihstiict ciunicil-
lor ; and then H. held the olKce of treasurer,
having heen long previously apiioiiited hy roval
ciiiiiinission. H. refused to give A. the honks,
iSc. , of the oliice, upon the grounds that under
the district Council Acts, 4 iV .") Vict. c. 10, and
!l \'ict. c. 40, the election had lieen held at an
inipropi^r time, and that the two othces of dis-
trict councillor and treasurer were iiicompatihie.
rpoii application for a inandamus to H. to deliver
over tlie hooks, &c. : -Held, I. that A. had lieen
elected at the projier time and session ; '2. that
the two olKces were iiicoiupatihle ; .'{. that A.
was iiieligihle for election, the couiii.il having no
power to receive his resignation as councillor ;
4. that iiotwithstandiiig A.'s irregular election,
he, as treasurer de facto, under the !( Vict. c. 40,
had a legal right to tlie hooks, i^rc, of his ottice,
might go,
i!stionai)le
proceeding, liiijiiiit v. liiiiilh, 4 (}. B. .S'JlI.
A nmndamus was ordered to the elerk of a
township to deliver uji the papers to the council
lirst chosen, a second election having, under the
circumstances, lieen held invalid. In n ('iir/inr-
(it'iDu nf Anjiliixkl luid Soniuniit Lt (il., 17 Q. 15.
.■503.
See li> re MiLii;/ it ul., 24 Q. R. M, p. 2-JIO.
and th;it the inandaiuus might go, the legality
of the election lieing iiuestionaole in another
f>. To Rcjxiir or L'thiiiltl Jlii/liwui/n or lir'uhjen.
Senihle, that under the facts of this case there
was clearly a duty iucumlient on the luunieipal
' council, under 12 N'ict. c. SI. s. ;{7, to plmik
gravel the road assumed hy them, .is tht v «
desired. 'I'lie court, however, granted uuP
iiiaiidaniiis nisi, in order tliat any i|iii'sti<iii mi'
upon the return might he disposed uf fniuiul
In rr Miiniri/iiili/i/ iif Aiiijiinln inn/ .!/«„;,.;
t'oiinfll III' IjIiiIm iniiltlrinrillr, 12 (^. IV .'rj''
A inandaniUH nisi having issued ciiiiiim;ii„|
a niuiiicipal corporation to repair and ii'ImiiIi
liriilge over the (Jraiid river at ('a\iii.'a,
appeared on the return that the liahilitv v
ills|iiited on several grounds, it liciiig luiitciii
that the liridge did not lieloiig to the dcf
daiits, that it was not constructed on tiie ■
pn.vided liy the charter of the origiii.il ci
]iany which luiilt it, and was in an imtit n
dangerous place, and that it should he iiiiaii
hy another municipality : Held, (hat iiik
tlicse circumstances a mandanius vmhiM in,t
and that the apiilicants must jirnciid liy iii<li
ment : and Scmhle, that the latter is tlif pnii
remedy in all cases cxeejit where a iharter |
liceii ohtained to I'lnistiiict a road, and the wi
has never lieen done. Itiijinn v. Tin Mnn'ir;
(,'iir/)iirilliiin III' lllr ( 'niui/l/ nj' l/llli/iiii,ii,l •'()
R r)74.
A m.-uidamus to compi'l the couiitv to Imili
hridge over the (iraiid river at Indianu \va.<
fused, for (I I, the liridge having heen hinlt In
joint stock eoiii|iany the jiuhlic coiilil i„it"
liound to repair it ; and at all events, tin ulilj,
tion heing at least very doiilitful, the ii.irt
should he left to their remedy hy indii tiiuMi
and (2), the place at which such )iridg< >|i(iii
he erected must lie in the discrcti if t
council. Kinmiir mnl lln- ( 'iir/iiinilh,/i .,;' /
Connti/ iif lloliliniiinil, .30 t^. M. :j!)8.
It was held that the eoriioration nf tin inun
of Haldimand were not lialilc to indiitiinnt 1
not repairing the liridge over the (irand iimi
the village of York, for it had hccii Imilr In
joint stock company which had aliaiiildinil'
and had never lieen asMumed hy tin- r.iiini
nor had it h< me a ]iiililic highw.iy hy .li'liJ
tion, tolls having heen iniposeil on it. I iiivf
however, whether the council could not ln' o/|
lielled to estalilish a hridge across the livcrl
some convenient place lietweeii ( 'aliil..ina
< 'ayuga, there lieing none for that distaiu . , alj
elc^■en lllil.'s. linjiiui v. Tin ('nr/innirh.n nf\
Ciiini/i/ III' l/iiliUnh.iiil, 'M Q. H. 'Mit.
Held, upon the facts st.ited in the alli.l;i\|
filed, that a inandamiis would lie to coiii|n|
county to huild the hridge, as suggestiil in I
last e.-use ; and the writ was ordered. Harri.J
( '. .1., diss, /{rniil-i mill Tin- (''ir/iiiriilinti nil
('iiiin/ii iij' lliililiiiiinnl, t). H. K. T. |S77:
yet rejiorted.
Semlilc, that a mandamus, under tiic liivii
stances of this case, would not have hceii i.r,iii|
at the instance of the municipality to iiiiii|'J
railway intersecting highways to restore tlaiij
their former state, or m a sullicicnt inaiimrr
to impair their usefulness. Ii'iijiiin v. '!'!'■ Hi
l\'ix/irn J'liilinii/ Cu., 21 {.). H. .m."i.
A motion fur a mandanius reipiiriiig H. ki
the purchasers of a road company, tn n'|i.il
portion <if the said road, w.as refused oii tliiT
tliority of Hegiiia V. Trustees of the Oxlniill
Turnpike Roads, 1 2. A. k K. 427, and the iiarf
left to their remedy by indictiiieiit. H"iii't
lirvirn ,t. ill., 13 C." I'. 3'}(i.
•2-ni
,', oWr ami .v>,u,U a
^ t;.lX U.0 UaU,l,U was
I ll\l tin' Slid
,f tlie uii-iiial o.m-
1 xvas in an ""H' :""'
C Laaums vvouia u..t >..
1 U.St \'VnCLi>l \,y ni.lKt-
"'£■ Matter i.th..,.n.|K.r
n*''* t a.\, au.l tl. work
•Jl'l.l
MANDAMUS.
•2'2H
iiiit '
;U'tir
In IS")!!, a iciiiil t'liinpany olitaint'd leave ti>
liiiiM ii lii'iil^'e at a |i<iiiit on tlieO. rivir trimi
the I'uhlic WiirkH ili'iiartnicnt, nmler wIhihc con-
trill tlilH iMirtiiin of t\»: river wiix, ii|Mm eomlition
tlmt ill tliu event ot navigation lieini; remiineil
the liritlge «lioniii lie removed, ami it' the govern-
iiieiit rc(|iiireil a ilrawliriilye slionld lie hiiIi-
■.tituteil. Na\ i^'atioii liein^,' pl .iimed, tiie liridj^e
wiw ordered to lie removed l.y the deiiartineiit,
aul was removed liy tlie eouuty, niider whose
ciiutrol the road liad [laxsed. I'lioii ajuilieation
[lira mamhimiis to the eoriioration <if tiie eounty
til hiiild a swiiij,' or other liridge at thit jioint :
Hi'M, tliat it was diairetioiiary witli the goverii-
Mii'iit to aUow a liridge tliere or not, and that tlie
.iiUlity was neither aiitlmri/ed nor eomiieUed to
Kuilil it. 'riie aplilieation was tlieielore refused.
/,'. WiKi-iilt ■till., mill til' ( 'iirjiiiriitiiiii nf tin'
r,, /,//// <./' /'ill rli'irtjiii/li, Xi (^. H. "JM).
Wiiere a eounty eouncil is lialile to ri'iiair a
iiriilge. the jirojier remedy is liy iiidietmeiit, not
iiiauiliinius. /I'l Jiiiiiii.-iiiii mill tin ('iirjiui'iiliini oj
it VhiiiiIii i>f l.mim-L; ,S>S (^. It. (;47.
rii:;/;;':; ^/''-''''''-'-'^'^
oomi-el tl.e county I
ivand liver i
Uridge Uavinu l-^'"
.any tin' llV^'!''., ts
t; andatuUe^ent^
as
liiiiMa
\\\\\ hy 11
I'liuld U'lt W
ts, the ol,ll;;il
'* / /;„• Cor;""'"'"'" :' '
"""'.... lion of till.' mity
,,,„(j,e I-VVVV, l„nlt l>va
,n.e a Viildi-' >"?-''> ' ,h.;.R.,
,,„.t\.e>-" 'I lUe nv.r»
,l,sh a l.vidt;^^ _;^; ;„ raledoina iuiil I
It,
■nt
hctween
lislaiui'
iilaec
eillgi..-t-';'t.,„..i
Ithe faets
lain
aUmll
„(■ (III-
stated ill the alli^liviW
•,.... .iH snill-este^l II
the I
III ttiel
„dan>u^Y""' ■;; ,,tea >" H
> the l.rldge, . ^ « ^n^ j,^,,.^,^.,„ !
the ;viit --"-;;,,„; .J
L/i/o/i"'"'. '^*-
U. K. •!'•
under tin
uuuie
leeting highway
viiim-|
; case, «o"»" "'. . .i;tv to iiiiliV^'' '
Ieofthc..nuin;:>^-|'J>,;,,,,Jii,t<
t^uiheieut,..;;;;.'^;'"'"
luiriii:.; ''■ *
lor a 11" ;- M\.auy. t>' i'V»"
ufusei'
ktate, "i- ">
t,- nsefuhicss.
J /< •>
livii/ ' "•> -
"a niaiidainus ve-i
,r« of a r..ad__coi..l^v.- ^^^_ ,„^
L;aidn.ad,«;«ve -;■,,,
tgi"'vv.TrnsU.es. ;^,,,,,^,
remedy hymaietn.e
13 C. I'- »•'•'•
To I'm ^T^
nil UlVlsliiN rmiii
Ofkickh.s.
.IllKlKS OH
The eourt will only grant a inaiidaiiiiis to the
;ulj;e iif the County Court w here his jiirisdietion
;. clear. 'I'millDf v. //ulrniiilii; 7 Q. H. i>48.
A luaiidamus wa.< refused to eoinjiel a County
I iiiirt judge to ainirove of the seeiirity tendered
iHr ajip'^al after the four davs given for siuh
miiIlt had e.\)>ired. Funl v. Crulili, S (}. U.
A judge hy order stayed the iiroeeedings in a
mse until the attorney or his elieiit, a trustee,
.jiulil give a iirooer iinlemnity to the iilaintill',
I v,!iii Imil exeeuted a deed of trust making the
liiiit a trustee of lii.s e.state, .igain.st any eosts of
r.iiiiictiiiii ill ease the iilaintifl lieeame nonsuited,
Uv. .V inandainus to eomiiel the judge lielow to
Lniiit 11 summons or take other iiroeeedings for
I Miiliiliiig the order was iefused, as it would lie
latcrfuring with the jiirisdietion of a eomjieteiit
Itnliuual. Ill ri -/ii'l'i' nt' tin ('uinili/ of' Eli/iii mnl
%',;iflmit, 13 C. r.'73.
A iiiiuiilamus will lie to the judge of a ( 'oiinty
li'iiurt I'liniuianding him to hear and determine a
la'\er. In n liiinis y. lUiili riii hi, VH). \',. 14(1.
But not to eorreet his judgment when given.
Xiirto revise his decision on a iioint of jirae-
it* III ir !IW<.; V. Ittniidt, 1-' t^. B. lt>7.
Aganiisliee siimintua having issued in a( 'ouiity
f"Ortaiiit, (iiie \\. iipiMiseil it as assignee of the
jlgmeiit ilehtor, and in answer to his claim an
Wavitwiis tiled, from which it would aiipear
Bit till' judge was interested with H., who was
Bliititlier-indaw, in his claim. The judge then
(iliiitil til net further in the matter. A nian-
uims til coiiiiiel liiin to disjiisu of the ease was
Jiuseil. Ill i-i- The Jiiiliic of till' Count 1/ t'oiirt of
h", '20 ti. K r.88.
I A jmlge of a t'ouiity Court having endorsed
jg^^MUi a rule nisi before biiu "judgnieiit refused
ic^^f ''""'t"* jurisdiction, rule absiilHte refused,"
arti^^V"'^''i^li dueision a judgment WiW entered : —
iiiiii^^H'''Uliat while the judgnient stood of record
^^niaiii!;uima to decide the case could bo directed
by the eourt, there being no caust^ iiendiiig before
the judge. WiUiumnint v. Hrijiiiii, I".' C. 1'.
•->7:>.
Action of trespass de boni.s, ite., in a County
Court, in which defendants, after deelaration,
apiilied to the judge, who stayed iiroeeedings on
it ainiearilig that del'enil.iiits had been sued for
the same causes of aition in the ( 'oiinty ( 'ourt of
another eounty, in wliiili aitimi the ]iroieiiliiigs
against them wfii' held to lir eoram mm judice ;
and whereof the losts, though taxed, had not
been paid. On motion fm- maiidaniils to lompel
the judge to try this ease ; Held, that the de-
fendants, biiiig primarily iiileresteil, had :i right
to be before the loiiit and heard. 'I'lie niaiida-
inus was therefore refused. /// .■■/ Jhilh m v.
Wliiiliilil III., !•_' C. I'. .-),-,•_'.
A inandainus to compel a County Court to
proeeed w ith an aelioii was refused, among other
reiwons, because the aiiplieant had a remedy by
ajipeal. Mii/ii.-i it nl. v. llnLi i\ l/iinii-i nri.i y.
Mii/iis it III., 2(i </. 11. ii;.
C. was in possession of projierty when the
assessors went round to asse^iv ; but he left, and
M. took . possession before the a>su.ssinent slip
was delivered. Imniedi.ittdy on receiving it, .Nl.
went and asked the assessor to change the assess-
I nielit, as C. had gone to live elsewhere ; but the
, assessor refused. M. then ajipealed to the ( 'ourt
I of IJevisioii, which refused to interfere, and
j afterwards to the county judge, by whom the
' complaint w as dismissed on a technical objeetioil
- taken to the form of the emnplaint. diiappli-
I cation for a inandainus to the judge to emiiiiro
and determine whether M.'s name was not ini-
: luoperly itted from the elertors' roll : Held,
. that such olijection should not prevail ; and the
mandamus was ordered. Held, also, that under
the eircunistaiices .M.'s naine should be eiitereil
on the list. AV MrCiillufli mnl tin Jiiiliji nf tin',
('nil nil/ Ciiiiii iij' Liil.'i mill driiii-Uli, ."l.'i (,). H.
44! 1.
\.. and his will', who had married in ISli,"), re-
covered judgment in the Hivisiou Court against
\^., for rent due to .Mrs. 1 n land whieii she
i had inherited from her father in I8."i2, and U. <iii
the same day recover' .1 .t judgment against L.
i for a largir sum : Held, that .Mrs. b. being en-
titled under the act to the rent a.-; her iiw n, ami
; her hiisliand joined in the aetioa for eonloi'iuity
I only, there could be no set-oil' against it of H.'s
i judgment against b. .'^tieh sct-oll' having been
! directed in the Uivisioii Court, a niandamus was
granted to the clerk, to issue execution on the
.judgment recovered by .Mrs. L. I ii I'l l.iinliii
('/».<■. V. liiii-ltmiaii, •_'!>'(,•. I!. 1.
] A. was defendant in the Hivision Court in a
j suit briiught to try the riyht to a picturo .sci/cil
under execution, and whieli he claimed. Judg-
I nieiit was given against him in his absence, ami
, he obtained a new trial on ]iaynient into court
of the amount for w hicli the piciure was .seized,
1 to abide the event of a trial. A verdict w;is
afterwards given against him. (In applying for
the money, he found that it had been paid over
to the execution creditors. He then einjuired
for the picture, but it had been seized and sold
under other executions. A rule was moved for
a mandamus to the judge to make .an order on
the cU^rk to p.ay to A. the sum deposited ; but
the court held that they could not interfere, in
ft Cruukihaiik, D (j. B. (J77.
w
Ih
A IIIIUkI.'IIIMIH \\:\H Ii'I'iIMUiI to jllHtil'UH <lf IV tllM'
ti'ii't ill <^iiiiiti r Si'Mtiiiiis, to (inlcr iiiirliiiiiiciitiiry
wii;;c.s til 111' (laiil t" tlic i('|in'Htiitiiti\«' nt' a town,
iiiiilrr till' HI <I(ci. III. I'. !'. /A I V. Jin/iiiM iif
.\inii(irii, 'I'ay. .'till.
W'lii'ft' :i |irr.i(iii li^ui lii'cii imivirti'il licfnif
jiiHtiii's mill liiii'd, jiiiil nil an a\iiii'al tn tlio <,liiar-
tcr SfHuiniiM till' jiiHtiii'n tliiio ailiiiittt'il iiiuir
eviili'iii'd than liail lict'ii lirai'il nn tlit' I'lHivii'tiuii,
ami till! aii'iiMi'il jiarty uii« uiiiiiittfil, Imt mi
I'liiiv iiiy till' ii|iiiiiiiii lit' the attiii'niy-j,'i'iu ral
that thr aililitimial f\ iilt'iii'o mIiumIiI nut liavo
lii'i'ii ailniitti'il till' jii.itii'i's in si'Msiniis ciinrniiii'il
till' ciiiivictinii, aiiil iiriliR'il it tn lii! ri'ciink'il
liiit timk nil iintiri! nt the acijiiittal tin- inurt
^lanti'il .1 iiiaiiilaniiis, cuinnianiliiiL,' tlirin tncntrr
an ai'i|iiittal. /I'l .'■ \. •/n^tici.i nf /luf/inril, 4 f ».
s. am.
A niaiiilaniiis will imt In' L;iantiil to nicli'i' tin'
jii.-itii'i's in Hi'M.siiiiiM tn ilii'L'it till' ti't'.'isiircr of
a ilistiiit to ]iay the Irilanee nf an aeenmit fur
lirinting fur the ili.'^'triit, wliiili lian lieun re-
jeeteil liy them as I'-xie-ssive. Slininlini v. Jiix-
lifm III' llif llxiiii hislriil, K. T. 'A Viet.
Where the (,>iiarter Ses.iiniis have amliteil the
aiennnts nf a ilerk nf the Jieaee, this emiit will
lint interfere liy lil.llnl.iliins tn eniii|iel the allnw-
aine nf [lartieiiiar items Dnilmll mul /lir ('niirl
(if (li III fill Sl.i.iiiiH,-' fill' I'i'l ni'iill mill /i'llisi II, '2(\
(}. I'.. t;{(».
Where there is a ilisjiiited liniiinlary lietweeii
twn ilistriets, ami nne nf the ilistriets aii|inints
an af,'ent for settling the liniimlary, iiinler I N'iet.
c, l!», s. ,S, the eiiilit, will lint, nil the refusal nf
the jlistiees of the <iMlaiter .'^essinlis nf the nther
ilistriet tn aiipnint an a>;eiit nn their hulialf,
(Ureet a iiiainlanius tn them tn iln so, as the act
leaves it iliseretiniiary with them to iirncueil
(ir li;;t. Ill I'l- liiiiiiiiliirii liiii'lnfiniii Eilnlil'il iiinl \
,/iiliii.tliiirii hi.tlrU-l". M. T. ti Viet. i
The court having granteil a iirnhiliitinn against
lirneeeiling further w itli an ainieal frniii a eniivie-
tinn, lefnseil a iiiainlanais tn the elerk nf the
peaee tn certify the miii-iiaynient nf costs, nmler
(,'. .S. L'. <.'. c. 'lo;{, s. (i7. /" /■( Cull iiiiiii, Cli rk-iif
till- I'luii- fur till ('iiiiiiluiif IliiMliiiiMf'l'Ml. J{. (il.'i.
AVIicre a convietinn has lieen atfirmeil by a
jui'y nil ajijieal to the <,>narter .Scssiniis, that
cnnrt has nn aiithnrity to grant a new trial : —
(^•iia're, whether, when such veriliet has lieun
remlereil against the cxjiress direetinii of the
chairman, that emirt woiihl he lioiiiitl, or hIiouIiI
lie eoniiielleil l>y iiiaiiilamns, to enforce the con-
vietinn so atlirmeil. YniiLi v. liiiuili iniiii, '2S >
g. JJ. .V)l. ;
I
Uuiler the facts stated in this case, a man- i
damns was nidcred tn issue, directing the nrder I
of the (i>uartcr Sessions ijuashing a convietinn '
to lie set aside, as in excesa of jurisdictinn, and
the convietinn to be amended and alhrmed.
McKiiiiiii V. Powell, l!0 V. v. li'M. \
IV. To Ji"sri('E.s OK TiiK I'kack.
UiKiu a niandainuH nisi to ju.stiee.s, they should
return the recorded jiroceedings had before them,
and not collateral matter not embraced in the
entries of the court. J'l.r v. Jastkiti of t/ir
JIoiiu- ViitricI, T. T, 11 Geo. 1\'.
The court refused to grant a maiiilaiinis,
eiimiiel two justices tn issue exeentinii ii{„i
cniivictinii, under (i Will. I\'. c. 4, M. "J, |'i,|.
ling s]iiritiiiiiis lii|nniM witlmnt lieeiiMe, tli,. ,,
vietinii having lieen grniiiiiled ii|inn the writ
statement nf the iiilornier and tl ath nf
other witness ; there being a dniibf, |||ill^.,.
statute, whether the iiifni niatinii nii;;lit imt ,
tn be an nath. Kiijiliil \. Mi> 'iiiiiii II, t'tOs. t
Mandamus refused tn a magistrate, tn revi
a eertilicate gr.inted by him at an ailjoiiii
(,>uarter .Scssiniis, authnri/iiig the is»iU' i>
tavern license tn .\. IV, for kcriiiii'. a tav
in the tiiwiislii|i nf Vauglian, tin- iirtili.-
laving been granted in coiilraveiitinii nf ^
l;iw of the niuiiici|ial iniimil nf \ aii^lian.
il'iiiii I x i-i I. Iliiiiilili- \. linniiiili 1 1 iil.,s{\. 1; ■'
The ainilieant, ('. , having .iiiiHared tn
infnrmatinii rharging him with an ahs.nilt, ,■
luayilig that the ease might be dis|inM.d nf ,<|i
marily under the statute, H., tin. .niiiiihiiiia
ainilicd tn amend the infnrmatinii by ,iililii|,r
Words "falsely imiirisnii." This In'inj,. iv(ii<
H. ollcrcd nil evidence, .iiid a sccnnd iiilnimat
was at once laid, including the iliargc ni i,.|
iminisoiimeiit. The magisl rate rifiis,.} \„ ^
a eertilicatc nf dismissal ni the lirst iliar^e, nr
|irneeed further thereon, but endniM.il ,,|, (
infnrmatinn, "Case withdraw n by peniiissiiiii
the Cniirt, with the \iew of having a luw ini
niatinii laid": Held, that the iniii|.laiii/
could not, even with the magistr.ite's cun.v.i
withdraw the charge, the defi'iidant liiiiii,' ,
titled to have it disjiosed nf. Ileld, al.Mi "tl
an informatinii may be anieniled, but if nii i>,i
it must be re-sworn ; and that the aiiitiiilrii,
might have been made here. Sciiililc, that t
more correct cimrse wnuld have been tn gn
with the nriginal case, and, under ,'V.';i;t \'iJ
c. '_'(), s. -Ki, tn refrain frnm adiiidiratiiii,'.
luandamus tn hear and determine the lirst char;
and, if dismissed, tn grant a certilieiti' nf .1
missal, Wfus hnwever refused, fnr the witlnlr.iv
was eiiuivaleiit tn a dismiss.il ; ainl the mad
trate might, under s. -Jli, refrain fmiii ailjinli,'
iiig, and if it were dismissed withmit a luaii
nn the merits there wnuld be im certilieiti.-
/•'• Voidliii, \\\ <,». It. KiO.
The defendant was cniivictcd in .liilv, l>|
under the I'nblic Health Act, ."tCi \iit. .'. 4;i. I
nf ere.iting a nuisance ; the magistr.ites nfiiJ
til hear witnesses for the deteuce, nu tlic ithiI
that the statute made nn [irovisinii fnisnili \|
nesses being called : Ileld. tli.it ,iii apiilioatl
in May, IS7.">, for a mandamus tn runinii
comiilaiiit, was not too late, and the writ \
granted ; the refusal to hear one side l,,ini;
.same as if the I'ase had not been lieanl at
Jti llnllintil, T, i). |{. 1J14.
V. To MrxK ii'.vr, Cukimiimtiuns amiOffhiI
J. Kliiiiini of Miiiilicfi* mill officr^
Where a mandamus was aiijilicil fur fc
warden of a district, to swear in ,i piTsi'ii i|
elaiinud tube duly electeda councillor, tliei'
discharged the nde, it ajijieariiig tliiil ,i amii
lor had been returned and swnrii in Initliot"'
sliil), which return had been cnntc^ti'il, tli
per remctly being by ijuo warranto, lit c /|
mil, (i O. .S. 330.
111 iv. f. 4. »■ -. <"' •"■'•
vvUli""t »''•'•""'•■ '>"•'""
to a ,.,:»(ii^tnvtc. tn iTvolv.^
,V \.n.. "t an a,»V»n,..l
^,,1 „ii/.i.«t: <>»• ""•%::',;'
u lor ko.l.iOK ii t^'^""
iu o.i.tniV.'«.t,uii ..I al>-
. , having ''vi"''"''| .;'■;;';
.; ,um vvitU an a.MU t, . ,
. ? II tlio o.nn.luhaiit.
^''*' 1 , atioll l.V i^.Mx,;^ tii.
H«: '<; 'i'"'S s u^in. .vu >.
1'": u,.laH.->naiut..na:.tiu..
„ \.iit nil "i>'>"l "" *'"
' 1 , .....wti'atf ^ luiiM'lil.
' ''T il 1 U'.0."t i>'"""'"^
•'">■ ^'. : \ at tU.. miuiKhm;.!
„ iaa.t.viinnetl,Hivst>.r.
i-evov >-«t."^\"' . , . .,„a th.. map-
() IV If'"-
„..t t"" \»tc . -' ^^ .^^ ,„
L,-,M:Mr '"'"■- ;.'f;'V«
Lu..la,u«swasavv-H.;__j
1 .luly '^'V'-'^'- .,,.;,,„ that a i.'uncl
|...t«vu ha.i i-'-'^' ;; "\ , ;„ ,■. 4
l3:$o.
u.'i:
MANDAMUS.
•Jl'IH
'I'lii' court Mill not j^raiit a inaniliiniiiH to try
;iii I'li'ition ol iiiiiiorati' olliiciM, Imt will Icavi'
till' iiaitii'n riintistiii;; tlii' validity of tliui'livtinn
tci tlicir ii'iiii'ily liy ijiio Maiianto. h'.liriUni
Hoifi'l "/ /'o/i'-', lii'nikiilli. :<(». S. I7:i; It'u'iiK'
\, lUiiik iij' I'ji/ii r Ciiniiilii, 5 «^. H. 'XiH.
A nianilannis may In* ^.Tantnl to a iiiiinicipal
oir|>oi'atioii to |ii'oi'i'('il ill till' trial of a contcstcil
tK'ctioU. /" /I l)i iiliiliii iiiiil till ('iii'iiiii-iilhin iif
III, niji III' Tio-oiilii, 'A O. S. (>()."i.
Siinlil '. tliat a.t soon ,'ih tlic iinlniiuiit miilrr a
^mlllllolls i!<siii'il iiiicli r !•_' \ict. c SI, oUHlin^r t|n.
.li'ft'iiilaiit, lias lic'ionii' liiial, tin' coiiisc for tlu'
it'lator to taki' will lie to a|>|>ly to tlic iiiiiiii<'i|>al
,iii'l">i'atioii to a<liiiil liiiii, ami if tlicy rt'fiim',
thi'ii to ai>l>ly for a iiiainlaiiiiii. I'lii'iiin i.r rtl.
iliUinni V. Sir/., 11,11,, I C. I,. Cliaiiili. l'J."i.
IhalK'!'.
At an i'K'ctioii of to\\ iixlii)) I'liiiiU'illoi'x, the
jaiToii will' aiti'il a^ n'tiiniiiiji olfii'iT for nw of
till' livi' warils wan not tin' iicrson aiiiioiiitoil,
iiiit iiiii' of tilt' «anu' nanii'. Afturwai'iU, wIumi
tilt' tivi' coiiiii'illoiM fli'it a.tsoinlili'il to iliooMt: a
ui'Vi", tin' I'omnillor from this want wan oliji'f-
tfl til as not liiiii;^ iliily clcctril. 'I'lii' otlicr
Mill' loiiiu'illors tlii'ii. witlioiit taking' thi'oatliof
nttii'f, iiiin.'ft'(lL'il to I'li'i't till' ri'i'Vi' : lli'lil, that
thi'tiftli loiiiiiillor slioiilil have lici'ii allowiil to
\-,\le «itli till' othi'is, for it «as not for ttu'iii to
.kti'iiiiiiii' till' valiility of his iloi'tioii : lli'M.
.ilsi,, that till' oath of othco shoulil liavi' Ih'cii
tiki'ii hy tin.' I'oiiniillors lu'fori' proiii'iling to
flict till' ri't'Vi', siiili I'h'itioii lifing within tlu'
ait.iiiiiii; of thr Miiniiiiial ( 'oiiiioil Ai't, an "en
ttv ii\"iii tliiir ilutii's." A iiiainlaiinis apiilit'il
ji.'r hy till' rei'Vi' thus clccti'il to tin- t'lirk to
wrtifyliis (.'h'ction. was tlu'rcfoii' ri'fusi'il. In n
//.iii'il' mill liiilliinl, I'liirii < Vi /'/■ iif llii' Miiiiiri/iiil
'unlifll III' till '/'iili'llslliji III' Willr.ili II, ',i ('. 1*,
■n\.
iiii ajiiiliiatioii for a iiiaiiilamus to tin' mayor
; iitiiNMi to issui' his warrant for a new I'li'ition
uqiliU'i' of a nioinliur of the eouneil, whose seat
,t nas alU'>;e<l hail lieeonie vaeaiit hy his iiisol-
I ^fiicy : — llehl, that the vaeauey must lirst lie
rst.ililiiheil hy iiuo warranto, and that nianda
1 MIS was not the jnmier remedy. Itiijiiiii v. Tin
\lui,„-iil' III,- Tnirii III' (.'iirilirilli, 'J.') Q. H. "-'iW.
*2. As.Mr.-*stlli-llli<.
Tlio luiirt refused to interfere hy inaiid.inius
ItU'iiminl a niiinieiiial eouueil to alter the .'issess-
liiitut lit the aiiiilieaiit'.-'. jiroiierty as settled on
Ijli^v.il liy a Court of lievisioii, or to exjiress any
liiiiiuu as til the |irineiiile to he adopted in the
//. /'I Difk-iiiii mill till
I'llllli/r ,;/• (,■«//, 10
Miiiii-
g. 15.
Itisatiiiii of property.
ii'ij<l( Ijilllllil (./' tliv
I Till' fiiiirt refiused a mandamus eommaiidiiiL; a
|i"unly odiiiKil to proeeed us direetyil hy the
lAjwSMiiuiit Aet, t '. S. r. ('. e. .")."), in u(|ualiziiig
Itk aisi'ssiiient, a.s it was not elear that they hud
! mmiilii'il witli it hy their hy-law. ilih.iiiii
'\ III! I'uriiiii'iitiiiii III' till I'liitiil Coil II I ill III'
'ffii tmil linia; -20 i). H. 111.
I I'neS. from I8.'8 to ISOl, inclusive, oucupied,
Mesfet, a house and land adjoining on lot '24,
pit of which lot in 1854 hud been laid nut hy
5 la'.ulloi'il into village lots, and a pluii tiled.
He had lioon regularly iwnessid and had paid fop
the lui'lnist's thus .n'liipicd hy him, Imt the w Imlo
of lot "J-J had, during tln.»r four years, heiii n-
tiiriii'd as iioii-resideiit. After the treasiu-ir had
issued his warr.int for sah' to the sherill, he waH
applied to to lorrert tin; mistake in the rolls, so
us to except the part oi-ciipic.l liy S. from tliat
returned, luit he rcfuse.l to di, more than alhiw
the slniiir to dcililct tin- aniount paid iiy S., who
to relieve his g U from sci/iiri' |>aid under pro-
test the taxes on the remainder of lot •Jl. .'<l''_'S.
He then .ipiijicd for a maiidainiis to the trejisiirer
to make the correction, Imt the court icfiisecl ti»
interfere. /;/ d Sirk-r nn't /'n.it-in, 'I'l: iiiiiri i'
I,/ l/lr Ciilllltl/ul' Ihltilrin •22 O. II. IKS.
.\ rate having hecn impose.l to ImiM a new
school house in the town of .\mhcistlmrgh, cer-
tain persons who were not catholics, Imt pro-
test.ints, siLiiii'd a notice to the clerk, lie him.self
lieilig one of tliciii, that as siihscriliers to tlio
Koniaii Catholii' sep.iiatc school they claimed to
he exempted from all such r.itcs for commoii
schools lor ISIil ; and the ( hik, theri'iipoii, in
111 iking up the collector's loll, omitted this rato
opposite to their li.iiiH's : Meld, that tin- clerk
had done w long, .iml mii:lil he piiiiislu.l uiidel"
('. .S, r, t'.c. ,Vi, ss. 171, I7;<, Imt that tin' court
could not in the follow iiig \ear interfere hy man-
damns to coiiipel him to correct the roll, /n rr
Itill.^llilli ll,;'l ilr.llll, I'hil, III' llil I 'ui-/iiil-lltiull III'
III! '/'iiiriiii/AiiiliiMl>iiriili,'2'2i).\'>. 1'22.
.All elector served the elerkof the miiiiii ipality
with iiotii'c that several persons h. id lui n wrong-
fully inserted oil the asscssim nt roll, and others
omitti'd, or assessed too high or too low, and re-
(pusting the clerk to iiotily thciu and tlic asses-
sor when the matti'is Would lie tried hy the ( 'ourt
of Kevision. On the 'JL'iid of May," the court
met, w hen it was olijeeted for the parties
iianied that six days' notice had not heeii givi.'n,
Imt only live. The court then ailjoiirned until
the .'{Otii, directing (iroper notice to lie given,
which the clerk omitted to do, and in cousc-
()iience they refused mi the lUlth to hiar the
upiieal, and linally pa.ssed the roll. On ajiplica-
tioii for a inandanius to compil them to hear and
iletermiuc the matters: Meld, that they were
right, the six days' notice heiiig illlpl'|•ati^■ely
ici|iiired hy the aet ; and th.it the appearance
of the parties hy their counsel to ohject to the
I want of such notice was not a waiver of it.
Seinhle, that, if this were otherwise, the iimper
course would have heeii a mandamus to the
mayor to summon the Court of Kevision, under
section ."i.") of the ( '. .S. I'. ( '. e. ."m. lliijiini v.
'/'//( I 'iiiirt III' III I'i.s'iiiii iij till 'J'liini iif t'ljnitnill,
2.'. (,). li. •_'«(;.
The treasurer of a town, hy authority of the
eoriioratioii, applied for a maiid.inius to the col-
lector, I'onimanding him to give an uceount in
writing for each of seven years during which he
had held otiice, of the taxes remaining due on his
rolls, and the rea.son why he could not collect the
same, hy inserting in eielicu.se the words "non-
resident, " or "no property to distrain, ' und tt>
make oath that the sums were unpaid. The
court refused the writ, holding that ;is there
Were other remedies provided, under sees. I(i7,
170, 173, und 177, <if the As.sessmeiit Aet, it
must at least he shewn that they could not lie
used or he of any uvuil. /// rr ijnin ninl Tin'
Tnit-iurrr vl' tin- Tuirn nj' J)niiilii.i, i','} (J. li. ;}0S.
H'
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IMAGE EVALUATION
TEST TARGET (MT-3)
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Sciences
Corporation
23 WEST MAIN STREET
WEBSTER, NY 14580
(716) 872-4503
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2219
MANDAMUS.
3. To Tri'dKurcr to prti/ MiwfjiK.
Qiiu're, Mhcthur this court will award a nian-
daiiiux to a troasurur of a diatriot. lii'x v. Jlar-
rU, 'I'ay. 10.
Manilamus refnseil to a district treasurer to
pay over to a nieiiilier of tlio liouse of assembly
his wages, for which he had ohtaiued the si)eak-
er's warrant, under 1 Vict. c. 17, it not being
shewn that the money had been raised by assess-
ment, or that any apidication had been made
to the magistrates in sessions to ordcir Uie pay-
ment, ('iiniiriill.y. Biil>ii, H. T. ") Vict.
AVhere the tr(':isurer of the district council
refused to pay certiiiii eliarges of the clerk of
the peace, and returned to a mandamus nisi that
such charges were not shewn to be connected
with the administiation of justice, or specitii;ally
provided for by law, so that they should be
audited by the coinicil ; and further, that he
had no funds out of which to pay, the return
was allowed. //( y- i'ltrlc nf the I'tiuc v. Wcstmi
bish-h-t Mi(iiicij)i(/ Council, 1 (i. B. 1()'2.
A mandamus to pay tlie sheritr's account,
audited by the justices in (jtuarter .Sessions, was
refused, and the sheritV left to his remedy against
the treasurer ))y indictment. In ri' //inniltvn v.
i/(Ov;.i, 1 Q. B. 513.
Under the '20 Vict. c. 'Mi, the coroner is made
the judge of the necessity fm- investigation into
the cause of a tire ; and therefore to an applica-
tion for a mandamus to tiie treasurer to pay him
his fees, it was Held, no answer to shew that
in the opinion of the reeve and otiiers the en-
(jiiiry was not culled for ; — Held, also, that the
want of funds in the treasurer's hands was no
answer, the payment not having l>een refused on
that gi-ound. Jii re F(ri/ii-< (Uid Coii/ii/, 18 C^. B.
4. (Mhi'f ( 'uses.
The court refused a mandanms, at the instance
of the justices of a ilistriet, to compel the dis-
trict council to build a court house. Jnstici-^ tif
till' Dislr'ut iif lliifnn v. Iliirtm Distrirl (/minrl/,
5 (}. B. .")74. !"'ee also Rii/!nii v. Miinirijiii/
Ciiuiicil of Bnu;; 11 (_". I'. 57."i, p. 'li-rA.
The court refused a mandamus to compel the
inspectors of licen.ses to examine a certain house
fitted up by the applicant as a saloon, and to
grant him the proper certificate, if he had com-
plied with the liy-law in that behalf. In re
liujfirv. JlcsMiii !l (i/., \-2(l B. i:W.
Where, on an .ui apidicatiou to (jua.sh a by-
law for closing up a road allowance, the evidence
was contradictory as to wiiether the .substitu-
teil way was fit for travel or not, the court
suggested the issue of a mandamus, and the
employment of some competent person to in-
spect and rei)ort, by which the true state of
the rojul might be determined. /« iv Tlinrntiiii
V. 77/c Cor/ioriitiitii of the Toirn-i/ii/i of Vvrnlrnn,
25 C. V. 593. — A. Wilson, .J., sitting in Vacation.
VI. To PrilLIC COMP.VMKS.
1. To Rtijiitti'f Triinxfcv of Shuns.
In an action by a purchaser of stock at sherifTs
sale, claiming a inaudauiiis to the company to
enter the plaintifT as a shareholder : — H
the L'. !S. I'., c. 70, as well as C L. 1*.
•2')'), 2.')(>, must be obeyed ; and that as
of the writ had been served on defenda
the sheriff's certificate, the jjlaintitl' n
(looihrin v. Ol/iiirn mid I'rixrott It. II
Q. B. 18(5.
I'pon an application to compel a railv
])aiiy by mandamus to register a tni
stock, it appeared that the stock had 1
under an execution I'ecovered agaiii
mayor, aldermen, and coimuonalty of ti
()ttawa,"andl)y ('. S. L'. C. c. M, the
the corporation was changeil to " the cm
of the city of Ottawa" :--Hehl, that
proi)erly followed tlie judgment as w
and was sulHcieut, the corporation Ik
mcrly known by the name therein given
also, that a demand for the transfer of sti
the secretary and treasurer <if the conip
a notice of facts served upon him in tin
the company was sutlicient, the court
opinion that service and demand uiion t
dent was not indispensable. //' r<- (l<,
Thf Of/oini. .(■ /'rcMrvtt R. H'. Co., i;j ('.
On application for such a mandanms
that a demand and refusal after servi
attested copy of execution was esseiiti;
C. S. C., c. 70. The execution delitor
president of the company, and, on shewii
he asserted payment of the execution !i
sale, &c. : — Held, that this could not ju
j coni|)any in refusing to transfer, f<ir tin-
j concern with the transactions between
I cution plaintili' and defeiulant, or betwei
j dant and the sherilf. Qua're, as to the
a delay in serving the attested copy liej
ten tlayb after the sale prescribcil by
In re Onil/o/f onil tin- Sundii'kh innl
Cruiu-I. lloail Co., •_'(! q. B. •240.
Application by the transferee of cevta
in a joint stock company, for a iii
to the directors to enter such trausfj
books of the company. The by-law nil
pany provided that "any sharelioliUri
leave of the directors, but not otherwi
fer his share, or shares, by making ai|
such transfer in a book," itc. The
declined to grant the re(piired leave, 1
re.vson to the applicant for their lefus
that it was for the directors to exuil
discretion, and that they need nnt|
reasons ; aiul having exercised this
without any evidence of caprice, the
couhl not succeed. /» /v .]liin/iiiiiii
.Mud Pi'hil'nni iind Piihlislibhi Coiiijiiii§
309. -(-C. L. Chamb. — HagiU-ty.
'2. To (ij>j)oinf Ai'liitrid-
A mandanms nisi was awarded tJ
missioners of the St. Lawrence ( 'aiiall
an arbitrator to join in awarding \\
settletl claim. AV McXuirn and (\
forth' St Lawrence Conal, 3 t,J. B. 1,'ij
3. Other Ciuvn.
The court will not, although tlicl
lK)wer, grant a mandamus for the \\\
the stock book, or other books of a '
JUrl'i f^i\
maBB^ssmaBm
mmmm
••»[
'1221
MANDAMUS.
000
^^'^'StSi^. r. Act. s.
'• f au.l that a« no o^v
' "^'"^?:v;i Aefe.ulant. uitl,
eathattheHtod^l' .^_^^ -tla
^"tio" '•«'^':^,':MtvoUh.city,..
veil the
■ioiit, tin:
t\\f iiamu "•
n,auaeouuuoualty
^' ^ ■ ^i' ' I'to " the for\iorati.n.
was cliange ^^^,^^. ^j^^, ^^.,,„
■'"„vvo.-atiou hem, W
lUlUlUol tUL ^1^^^ ,.,,llllll\UV. lUl-
uvev of the eoinvauy
111
sutheieiit, t\ie e.
.tHseneiyi ^ t1... eoui-t heiug
was •- , ,
,,vvieeauaaen.
(. nrr.trolt '■• " •
uid «l'oi> the V''f
manilamus ; -U
,tion for 8ueh a ■"^-■•^,,.i,, „f tl.
70. ^^^\^^W, on shewing eauM-
the ^"»"r"^;ueUecutiou heluv. tl,.
Aii^U^th^vtUuseouian^^^^^
.vefusu.gtot.m-t'-^^ ^^^^^
t\, the tyausaetious _
uti
,lie
after t\»e saV
illiilt 'niil "'[
'^^^'^"l; ,K I >-'ol'y heyujM tlu
i-vhig the atte.te I .^^,
,ev the sale V^^^?^'. ,, ,„„,• il';,„(,„
pieserv
Sinidi'-ii'l'
lni:;;Uet,.an.e.e;;oevt...J^^
......tors to elite *«\'. . ^,^^. „,„,
iiirtV. 1
doctors to "^t';|:,;;;^;;,.iaw oi
H,, ooinva">; . ^i,,;,,l,o\aer
• iaecl that a»> ^ „t,,„,,v,se, mv
Heaiiv.ctorsJ>«t ;.n^^^^^^^
.are, or shares, h> i>^ ,^,,^^, ,,„.^,,„
l-f'^^nuJiii-l leave, hut ,^..«
tlw
'and that they i>ee> - ""
' • exereised
It,, .rraut the ve«l""Y, ,h- refusal : -H.l
f;,-awl>cauth^thui.a^^^^.^^^,^^
l><
;iu,l having ,„.,„.,ee, tue
.nyevi.leueeo capnc, ,
^"""i^hil.-Hagarty.
this aiscveti'l
tlie ai>l'lK""ii
(iV.
awarded to tl.c *;
(111 speeial grouiiils. liaii!: nf Ujiju'i- CdiKii/ii v.
Jidlitiriii, l)ra. .");■).
A lUiindaiiius will lie granted only where the
ajiplieant lias no other speeitie legal remedy, not
wliere siieli reine<ly exists, hut is nnproduetive.
The writ was refuseil, therefore, against a mu- •
tual insurance eoiniiany to eoniiiel them to pay a
t'liiini. the ground of apiilieatiiui lieing that they
had no real or iiersoiial iirojierty wliieli eould he
tivkeii in execution. It appeared also that the
present directius iiad no jiower to eompel pay-
ment liy those who had been mutual insurers
with the plaiutifl', l)ut no longer helunged to the
oiiinpany, their deposit notes having been ean-
eelleil. //inj/irM v. Miilmd Fir,- /«.<. Co. ';/' llic
l)Uin<i of Xcirrtisilr, I.S {}. 15, l.",3. See also, .S'.
C, 11 (,».' B. --'41.
Where an election of directors in a joint stock
company was clearly illegal- the voters having
eacli heen allowc<l only one vote, whereas each
shave should have given a vote-duit the parties
chnscii had for more than eight months dis-
cluuged the duties, the court refused to ia-
tcifciv hy inandamus for a new election, (^(uiere,
whftlur inanilamus or (pio warranto would he
the proper remedy. Jii ;v Moure itml The Part
Bnur J/arhuitr Co., li Q. H. .Sli.").
See /» vc f/ic Coiiinii'rriii/ liaiik dud (In Luinloii
Vu-Cn., 20 g. B. 233, p. 220!».
VII. To I'lm.H' OiricKHs,
A rule for a mandamus will he granted against
lnuMiilary liir; eommissioners if they do not re-
turn the pnieeedings had hefore them within
fourteen clays after notice of appeal. Dihnnj i-t
«/. V. SI rib- r ct al., E. T. 3 Vict.
A in;ui(lamus was granted, directing the hoanl
of iiolii'c of Niagara to pay over to the insjieetor
of licenses the sum of t'240, received hy the
clerk (if the hoard for tavern licenses for 1841)
and 1S47 ; the court deciding that, under the
ITtliscc. of 8 Vict. e. (i2, and 3rd and 4th sees.
: nf 8 Vict. e. 72, the government, and not the
! town of Niagara, were entitled to receive the
(liK's np'Mi such licenses, lii-ijiim v. Tin- Board
\t)j I'uli'-i: of Xiii'iiint, 4 Q. B. 141.
Where a coroner, under (_'. S. IJ. ('. e. 12,"),
Ismmmined a second niodical practitioner as a
1 witness nt an inipiest, and to perform a post
[niortcni examination, hut it was not shewn that
lintli [iractitioiier had heen named in writing and
aitendanee recpiired hy a majority of the
Ijurymcn, as provided for hy s. !), a mandamus
Itnthc ciininer, to make his order on the couiitj'
Itre.isuror for the fees of such witness, under s.
llO, was refused. Semhle, that on an applieaticm
por such mandamus, the county treasurer, as
«cll us the coroner, must he called upon. Jn re
HaiUil, ami W'iUuii, .30 Q. B. 314.
Indainus nisi was
Tjrs of tlie ^t■
Lawreiiee
ivwardm
lU
.eCaiiaUoarj
u\iou:w"
K>vtoy'>n :^,;:;;,;„„,r.ii. ^
felaiiu. A'' ;J';;„, .; ,j. B. !.'«•
3 Other Ca-^'"-
,.„„rt «iii -'; »f ,r't''S3
X. Dem.\X1) .VND IiEKU.S.VL.
riiiintifl''s attorney wrote on the 20th ])eccm-
W to the treasurer of the iiisuraiiue company,
iemaiuling a portion of the claim, and on the
list received an answer, saying that the defeii-
Buts' siilicitor was ahsent, and that the trea-
firtr had written to him, and would write again
1 the attdruey on receiving a reply. No further
|i8Wcr was sent to the attorney; and iu the
treasurer's affidavit, tiled in .lune, in opposing
this application, no mention vas made of this
sum : -Held, a siitHcieiit refiisal. Iliitjliin v.
Mutual /■'(/•<' III". Co. of till- /Ji.itrirt of Xanui.-itli ,
13 g. 15. l,-)3; .v. C., il Q. H. 241.
A mandamus to a clerk of a municipality to
furnish a copy of a hj' law was refused, where it
did not a]ipear that the demand wao accompanied
hy an otVer of his fee. /ii ri- 'I'oiriislii/t Cli-rl: of
Juiii>lirasiii, 12 i). B. ()22.
Where, on application for a m indainus to a
township clerk to permit inspection of the
assessment roll, a demand ami refusal were
sworn to, and defendant denied the refusal, and
allegeil that he had always heen willing to do
what was rci|uired, the court granted the writ.
/// re Sclri'il 'rrii.<ti-'.-i of O/oinili.i-, ,{.■!■., mid Cam--
iiii-iif, 17 <i>. B. 27.").
Where any reason is given for the refusal com-
plained of it shouhl he stated in the applicition
for a mandamus. .]/iiiiici/i(il Cor/nration of
V(-.<prii ,1 al. V. I'.i-tiltfi, 17 (I B. ,")t().
Several demands to transfer stock having
l)eeii made, and delays and evasive answers
given, without in direct terms refusing : — ^Held,
tiiat a suthcient refusal was shewn to justify the
issue of a maiidanius to compel the transfer. //'
re (toodir'ii V. Till- (Jtlairn .1' I'n-xcotl J{. IT. Co.,
13 C. I'. 2.->4.
Held, that the ilemaiid for the transfer of
stock upon the secretary and treasurer of the
company, ami a notice of facts served upon him
in the name of tlie eonipiny, was sutlieient, the
court lieing of opinion that service ami demand
upon the president was indispensahle. Jit.
On an application, at the instance of a resident
ratepayer of Walkerton, for a inandamus com- •
niinding the provisional council to proceed with
the erection and construction of a court house
and gaol at Walkerton, it was -Held, I. That in
such a case, the court should he careful only to
grant the writ on clear grounds ; 2. That the
applicant in this case had failed to establish
a sutHcient dem and and refusal — that the court
should have distinctly l)efore it what was de-
m mdeil, how tile deniind was made, and how
answered. I'l-ijiiio v. Tii" Miniiriiial Caiiiiril of
Briirv, 11 C. P. ,-,7.->.
On .application for a mandamus to compel a
municipal eorpor.ation to iirovide money for
school purposes, when it appeared that steps
had been taken to provide the sum required, a
mandamus nisi was nevertheless graiite<l. lii
School Triittii^ of Toronto, ami tin- Corporation
of tha at;/ of Toronto, 23 Q. B. 203.
On application for a mandamus to the eliair-
iiiaii of the <,)uartcr Sessions, to sign an onler on
the treasurer for payment of the sheriff's ac-
count, which lia<l been audited and passed, the
eliairnian stated, in his .ath<lavit tiled <iii shewing
I cause, that he declined to mark the aecomit as
audited and passed, and said that he wouhl not
sign a check therefor : — Helil, that this removed
all objection to the proof of a demand an<l re-
fusal. /// ir Davidson and Milh-r, 24 il- B. GG.
Before the court will grant a iiiaudanius to a
municipal corporation to pass or submit a by-law
to the electors granting a railway Ijoiius, a dis-
tinct dem.aiid upon and refusal by the corporation
to paas or submit the by-law must be shewn.
;: ,:;ir
<'kM
MANDAMUS.
P., anu'iiiluT of (lefembuitH' council, presented a
petition for a hy-law granting siicli a Ihiuus, on
the '20th J nic, and on tbe 'Jlst tlic conuiiittcc to
which it was referre<l reiiortcd favouralily, ad-
ding that they had a legal opinion going to shew
that it was inijierativu on them to sulmiit the
by law. The council refused to adopt tliis I'e-
port, and on the same day P. moved that a V)y-
lawin accordance with the petition he then read
a lirst time, which was lost, Imt it did not ap-
pear that the hydaw was drawn up or presented
to the council, and it was not Ijefore the court.
On the '2'yth, P. applied for a manilannis : — Held,
not a suHicicnt demand and refusal ; for the
council were not bound to ailopt the report, or
assent to the legal o])inion embodied in it, or to
pass the motion for the first reading of a by-law
not before them ; and they were entitled to some
time to c<uisider the nature of the ))y-law they
were reipiired to pass and submit ; and, Semble,
they should have had I'casonable notice of the
intention to make this application. /'( I'cfk oml
till- (Jtir/iur((t'ii)ii (if till- CoiUitij "/' I'lli rliorcin/li,
M Q. B. P_«J.
XI. Writ of.
1. }\'/i() iiKii) Apjihi.
An apjdication by two mend>ers of a nnini-
eipal council of a district, for a mandamus t) the
warden, to repay to the treasurer a sum he had
received from the council as a salary for his
services as warden, was refused, the jiarties
applying having no particular interest in ths
matter. Jt'ci/iiiii v. '/'/(c JJislrirt Council of the
District of (lure, o <j. B. 'Ho'.
Oil an application for a numdamus to compel
a public body to raise and exi)end a large sum of
money for general purp((ses, in this instance to
build the gaol and court house, (^ua-re, per
Draper, ('. .1., conhl the applicant as a ratepayer
claim a remedy by mandamus in such a case.
Biiil'iiia V. 'flic Mniiic'qiiil Cuttncil of Bruci-, \\
C.P. 575.
It was o})jected that the applicant for a man-
dannis to the insjiector of licenses to inspect and
report on his premises, so as to enable him to
apply for a license, did not shew that he was a
natural born or naturalized subject, as re(juired
by the by-law ; but, — Held, that such objection
could not have prevailed, for he was shewn to
have been <luly licensed up to 1st of May, 187<),
and no exception hail been made to him. lie
liliikehi, IiiKj/cctor of fJcciisc-i for the Ciiniity of
Prince Ehriinl, 40 Q. B. 102.
2. Ihhiic oJ.
A mandamus nisi, issued upon a rule, nuist
follow the rule, otherwise it may be quashed on
motion before the return is filed. Ifci/ina v.
McLean, 5 (). B. 473.
A mandamus does not recjuire fourteen days
between the teste and return, but under C. L.
P. Act sec. 282, may be returnable forthwith,
and by see. 4 it may be signed and i.ssued by the
clerk of the process, linn/eft v. Stucijcr, 2 P.
Pv. 3!»8.— P.O. -Bums.
A rule nisi for a mandamus cannot be granted
by the practice court. In re WW'MmH and The
Great Western H. 11'. Co., 2G Q. B. 340.
Held, on the authority of .Sams /•. Tin. C,,!,,,
ration of 'J'oronto, !l <^). li. 181, th;it a ju,!,
sitting in Practice Court has no autlimitv \
issue a rule nisi for a mimdanuiH in a cause nini
ing in the (;<iuuty Cimrt. < 'n/.si/ii/r v. Minn-im,
17 C. P. 218.
3. AjtiiluriLi.
Semble, that affidavits in moving for ,i ru
nisi for a mandamus may be entitled "jii re idi,
plaint of ('. ," though it is more innjn
to entitle them only in the court. //( n ,!/,((.
c!/iit/iti/ of Amiiiitn v. Miinlci/m/ ('ouncil ii/'/cci
on,/ (inn I-; lie', 1 P. P. 121. --<.,>. 15.
4. Iloic IXa-icliil.
A mandamus nisi having been directed t
"M . S., Treasurer of Belleville,'" and an attail
mcnt being moved for after he had ceased to 1
treasurer for not making a loturn to the same :
Held, that the proper direction woidd have lie*
"To the Treasurer, kc," generally, tiiiniL:li tli
Eersonal direction was not absolutely wrmi"
ut that as M. S. had ceased to holdtlie hIIr
the attachment nuist be refused. Iliinliil \
Saici/er, 2 P. U. 3i)8.— P. t'.— Burns.
Upon an ajiplication to compel a railway enu
pany, by j)ercmptory mandannis, to register
transfer of stock in the company, it apjieure
that the stock liad been sold under an exeeiitin
rucovereil against "The mayor, aldennen. an
commonalty of the city of Ottawa ;" and liy I '. .'^
I'. 0. c. r>4, the name of the corpuratinn wa
change<l to " The corporation (tf the city d
Ottawa :— Held, that the writ i)roperly tnlhiwei
the judgment as recovered, and was sutiieieiit
the corjioratiou being formerly known by tli
name therein given. //( re Oooihrin v. Tl'ir n\
taini (unl I're.tcotI J,: W. Co., 13 C. 1'. 254.
Held, that a mandamus might be djreeted t|
the company, not to the olticers. Jh.
5. lletiirn to.
Upon a mandanms lusi to justice, tliey sliniiil
return the recorded proceedings had before tlieiil
and not collateral matter not embraced in tif
entries of the court. Re.r v. Justices of llu 7A.«|
J)htrkt, T. T. 1 1 Geo. IV.
It was held no return to a mandannis tn aI
describing him by name as a mem))cr of aempif
ation named, that there was no such coriiniatiil
— the description being unnecessary. Tliecmil
will not, on a suggestion that the return tn a nul
damns was not actually made by tiie autlMiitv
the person to whom the writ is diieeteil
purports to be made, treat it as amillityil
must be expressly shewn that it was iiiiautliJ
ized. lleifina v. Balk-well, (i O. S. 2!I7.
In this country there could be no (leniunvr|
a return, liefuia v. Wellx, 17 C^. B. .■)4,").
But now there may be, by 28 Viet. c. IS,
7. n>.
XII. Cosr.s.
It was decided in The Corporation of I.aiiiW|
V. Poussett, 21 Q. B. 472, that the clerk uitj
^m
v„f Sums r. 'nifl'nq.n
" iiiw 111) autUtivity tn
MARKET OVERT.
2226
Art
u.l-
;/.■<.
a vulc
(iiii-
.-its i" ii>'>vin|; for a
"tl,(,ugUitisin<.vcin-..l...-
;,^ the c.uvt. /"'•' ,•"'"■
V^e mayor, ^A.vuk-u .M
. ,.itv ..fOttaxva ; au.l \.> * ■ >■
„7.'. tr-'"-' '•'*^-
It to the <.«i«-evs- /'-■
■toil to
5, i.VNini /-.'•
b.:'"rv:ir;,'.-.'."
llUeo. IV-
.,,„,, to a mauAauius to a„ .
by name as a i""' , ,,,„„.atuin I
Lat there wa.u.^«J-'.;.V.,,,„rt
In being ""'"'.S^f " ^vu to a luim-
lere may >'«. "> ""
iicat'e is not to look to the ^'<ivcriiiiient fortlieex-
iR'iixes l>ayahle hy them iiiiilur ('. S. l'. ( '. e. I'JO,
liut to tlio cMHiiity, who are to he reinihursed hy the
(TdVeriiiiient. \Vliere the clerk ajiplied to the
Jdiiiity auditors, instead of the seHsionn, and they
lofusi'd oil the ground t'liat he should l)e paid liy
the goveriiiiieut in the first instaiiee, hotli parties
liciiig wrong, the eourt discharged without costs
;\ rule for ii nianilaniiis, ealling uixiii the eouiity
to nay. /" ''<' /'o»«'/' uml tin' Cor/ioritfiDii uf llic
(JHiii'liJ of Lnnilitnii, '12 Q. B. 80.
The registrar was required to record a certifi-
cate of lis jieiidens afl'eeting "lot luuuher l(i in
the !lth eoiieession of tlie township of iCrin, and
jots nuiiihers 14 & 1") in the 10th eoncession of
the same towushij), " which he refused to do, as
the west halves of lots 14 k 15 had hecu laid out
hitn village lots acc<n'diiig to a plan tiled in his
(ittice. On application for a iiiandainus ; - Held,
that so far as regarded the west halves he was
rifjht, for hy the Registry Act, •_*!) Vict. c. '24, s.
7;), the cnrtiticate should shew the village lots
iffected. The point raised in this case heing
new, and there being no clitliculty in recording
the certificate against lot Ki, the rule for a iiian-
■hiinis against the registrar M'as discharged
witliout costs. Ill ir Tlioiiqi'ioii it at. ninl Wcli-
.i,r,2^ Q. B. -237.
Where the demand had been refused upon an
luiteiiahlc ground, the defendants were made to
ii;iv the costs of the application for the writ,
wliich was refused upon another ground. /iV
Unli-hisiiii mill till- Scliiiol TriiMti-i-s uf St. Ciitliii-
,;„(>, ;n Q. B. 274.
.K rule nisi having issued f(U' a mandamus to
lonipel a registrar to register a discharge of two
luiirtgages, the objection to including both iiiort-
:;3i'es in one certificate was first taken on the
iMiiueut ; and the court, under these circum-
stances, discharged the rule without costs. In
II Smith mill Slii'ii.'<fiiii, Iti'iji-itnir uf tin- Cu. of
Bnmt, 31 i}. B. 30").
Where a mandamus to compel the corporation
til levy an amount recpiircd for scho(d purjioses
»as refused, but the affidavits filed on shewing
i cause were unnecessarily long, the corporation
i «eiv allowed only half their costs. In ir TIk'
i Piihlir Sfhiiiil Trii'<tii'.s nf tin- Tiiini.-'li'iit uf Fnil-
•fMiitrii mill till' Ciirpuriifiuii uf tin- Tun'iiiliip of
I i'fiihnd'ihiirij, 37 Q. B. 534.
XII. Costs-
The Corporation
No attachment will lie for not niakinj;a return
to a peremptory iiiandamus ; it should be tor not
obeying the writ. Such an attachnieiit must be
testeil in term, on the same day as the rule on
which it issues. 'J'lie rule nisi called upon the
trustees of school .suction 27, in the township of
Tyendinaga, in the county of Hastint;s, to snew
cause why an attachment should iint issue against
them. On an affidavit of service of this rule oii
A., B., anil <'., stating them to be trustees of
saiil section, a rule abs(dute was granted, follow-
ing it in form, and thereu\)oii an attaclnneiit
issueil against A., B., and ('. : Held, bad, as
not warranted by the ruh^s. lii'ii'iiiii v. Srliuuf.
'J'riiyti'it III' Si'liiiul Si-rliiiii A'". -27 ('// tin- '/'nirniliijt
uf TuiiiilUiiiijii, 3 1'. 11. 4:t. ('. I.. Cliamb. -
Burns.
The affidavits stated that -M., who claimed the
otiico of registrar, obtained a niaiulanius nisi,
diri'ctcd to H., to deliver up to him the books
and pajiers: that he went to the ollice with two
constables in H. 's absence, and demanded them
of his wife, reading what purported to be a per-
emptory mandamus as his authority (it being
only a mandamus nisi), but refusing to allow her
or her solicit(U- to examine it ; and they then
took away the books, ite. Upon these affidavits
the c(mrt granted a rule nisi for an attachment
against M., but refused it against the constables,
tliero being nothing to shew that they were
aware of the fraud. In n MrLm/if til., 24 Q.
B. 54.
of umm
fi^^n^^^^-''
XIII. Enkorl-ing by Att.\chm?;nt.
k luanilanius nisi having been issued to school
Itnistees to levy the amount of a judgment ob-
jtaiiieil against them, no return was made, and a
I rail' nisi for an attachment issued. In answer
[til this rule one trustee swore that he had always
|t*maii(l still was desirous to obey the writ, and
|blieiieatedly asked the others to join him in
|le\7iiig the rate, but that they had refused.
J.\niitlier swore that owing to ill health, with the
lotiiisent of his co-trustees ami the local sujierin-
Ifflilcnt, he had resigned his office liefore the
|*rit was gr.aiited. The eourt, under these cir-
IfliinstiUiees, discharged the rule nisi as against
Iksetwo, on payment of costs of the appliea-
Itiijii. and granted an ,-ittacliment against the
jwlier trustee, who hail taken no notice eitlier of
Itt iiianilamus or rule. lieii'inn \. The Tnisti'i>.i
iiirlml S^'-tiiiii 27, ill till' Toimxh'qi of Ti/ciiiU-
•"l/n, -20 Q. B. 528.
140
MANSLAUCJHTKn.
Si'f CiUMiNAi. Law.
^lANUFACTUKHS.
Exemption of from taxation —Power of Muni-
cipality. Si'i' Pirii' mill till' Corpiii'ittiuii if the
Tumi of Diiii(hi.% 29 Q. B. 401.
MAPS
In Evidente — Si-o EvrnEXcE.
MARINE INSURANCE.
Si'f Insirance.
MARKETS.
(See MrNiciPAi, Cohporations.
MARKET OVERT.
When ahorse was stolen from the jilaiiitiff and
bought by defendant at public auction, but not
ill market overt, and tlie plaintiff afterwards
seeing the horse took iiossession of it, and de-
fendant iinmediately retook it : — Held, that the
plaintiff had a right to retake it, no property
having passed tu defendant by the sale ; aud
■mf^
: ■;■''
I ■':
OO'l
MAESHALLINd.
VI.
tliiit iiltliduyli it WHS ill liis iiossesMion only fur n
inoiiiciit, y<-'t tlie iiroiierty ruvusteil in liiiii, ami
lie c'dulil iiiaiiitaiii tit'siiass against tlicduft-nilant
fill- tliu ii'taking. Hninmin v. Ytcltliin/ it «/., VII
M. T. W Vict.
Ai.i.MoNV AM) Dkf.ks ok Sepahation
HiSIlAM" AM) WlKK.
MAl!M(»l!A I'orNDItV COMPANY.
Action for calls uiiik'f 1 AA'ill. IV. c. 11, against
the (U'lVnilant a» one of the stoekholdeis : ~
llelil, that the stoeliholders in the said eoriior-
jitioii weiv adiiii-'isihle as witnesses for the plain-
tills under the !'_' Viet. e. 70: that the said act
was not obsolete for noli user ; that the clauses
rei|uiring the hooks of siiliscriiitioii to he opened
within two months was only directory ; that the
suhscrijition hooks suhseiiuently opened niij^ht he
coiisidereil as in connexion with those previously
opened, and that all the priieee(ti!igs fnnii tlie lie-
guiniiiymiglit he taken together : that the oinis-
sion in the new hooks of the name of H., one of
the original jietitioiiers fortheact, (he heiiigdead)
did not render the ]iroeeedings of the company
invalid, nor was it fatal to the plaintitl's : that
the sanction for the opening of the new snliseriji-
tion hooks of the two surviving petitioners to
liarlianieiit for the act of incorporation was suiH-
eieut : that the names of the petitioners in the
said act n.ained need not neeessarily he signed
to the new suhscrijjtion hooks ; and that defen-
dant was not discharged from his liahility hy a
minute nia<le at a meeting of the directors, and
entered in their minute hook, declaring that the
names of all stockholders who were in arrear
shouhl l>e era.sed from the suhscriiition stock
book of the company. Jliiniiuni Foiiin/n/ ('a.
V. Miinuii, 1 C. r. L'y.
Sufticieiicy of declaratitui for calls under the
statute I AVill. IV. c. II, incorporating the
plaiiitilTs. Tlit> Jfaniinrti Fuiniiliii Ca. v. Mnr-
IK'!/, 1 v. I'. 1 ; T/ic Mtiniiiirii Foiinilrii Co. v.
BoKircl/, III,, 17I>; 'J'/ii- Miirinord Faiunlrij Cii.
V. Duitijiill, It,., 194.
By the Marmora Foundry Act, I Will. IV. c.
11, it is provided tliat the stock suhscrilied for
" shall he due and payahle to the said company"
in the manner mentioned in the act ; and that in
case of neglect or refusal to pay the inatalments
due on shares, such shares shall he forfeited and
sold : — Held, in accordance with the Court of
Common Pleas, that the company were not re-
stricted to the remedy by forfeiture ; and that
they might maintain an action against a share-
holder upon calls of stock subscribed. I^rapcr,
J., diss. Mariiiont Foiiiiiln/ Co. v. Jai-kaoii, !)
Q. B. 509.
MARIUAGK.
I. BliKACir OK Pko.MISK ok MAKRIA(iE — -SVc
Hl'SUAXD A.M) WlKE.
II. BioAMv— .SVc Criminal Law.
III. Ckiminai. CoNVEKs.vnoN — - .SVc Husband
AND Wife.
IV. Validity — .SVe Husband and Wife.
V. Seitlements — Sec Fraudulent Convey-
ances — Husband and Wife.
Conditions
Will.
IN Will I!i;(iahi>in(i
MAK.SHALMNC.
•SVp Mort<ia(ii;.
Ill IS-in*;,, being the owner of Whiteac)
P.lackacie, contracted to sell half of the t(
to 1>. hy a bond which was never registeic .
1S.">- <1. executed a mortgage covering hotl
toC, which was immediately registered, \,\
Christian name of the grantor's wile (wli,
cuted to bar dower) did notaiijiear in the ii
rial. In KS."),S (1. gave a mortgage of I'.la.
to P., mIio also imniedi.itely registered liis
veyance. In IS,"),") (i. sold tlie reinainiiii,' li
Whiteacre to .M., and in the foil 'wiiig vc
conveyed his intt'rest in the other iialf to S
IStJl ('. sold Blackaere under a power of s:
his mortgage, and the sale realized fully
w.isduc thereon. In ISfi'J P. lileil his lillii'
M. it S. in order that he might be suhrogat
the riglits of C. as against Whiteacre i,\
amount due him on his security. .S. ,t IT
])reviously iiai<l all their purchase money : |
that P. was not entitled to any relief iigaiii:
but that if C.'s mortgage was duly regi.stcii
was entitled to contribution against .M. lit,
V. Smith, J) Chy. S47.
H. obtained from his debtor an assigiiiin
his books of account, notes, bills, and
evidences of debt, by way of security iiy
notes for the accommodation of the tlelitdr
also a eonvej'aiice of real estate from tlic f
of the debtor for the same [lurpose. II
been comjielled to pay a large sum on sikIi \
II. recovered judgment against the delitnij
sued out execution thereon, whicli was tliJ
placed in the ham's oi the slieriH' ,',L;aiiH
debtor, aii<l the eflects of tin debtor weiv I
wards soM under this anil other execntimil
se(|Uently placed in the haiiils of tlu'
upon which sale suHicient was rcali/id tl
the execution of H. and leave a halaiicu i
hands of tlie sheriH'; and H.'s claim was a|
ingly paid, and the books of account and,
securities held hy him were delivcreil iip
debtor, after notice from .1., a later jn
creditor, not to part with them ; and tln'
land was re-conveyed to liim. Tlie oxtl
creditor who gave the notice, claimed, inf
(juence, priority over intermediate cxj
creditors, and also a right to compel H. x\
good the amount of his claim in coiiat'(|in[
having parted with the s|curities. I'lioiil
from the Court of Chancery — Held, I. All
the decree below, .5 Chy. (>}(!, that a siili^
execution ereilitor liiiil not any e(|iiity to
the first creditor to recover payment nf liil
out of the property held by liiin in .scuiiritj
to leave the goods of the debtor to satisfy i
sequent executions ; nor hatl he any riglii
ujxm H. to assign the lands conveyed to|
the debtor's father ; nor was H. pcrsoiialll
to the subsequent execution creilitiirs. [
2. Reversing the decision below, [K'stJ
8pragge, V.CC, diss.], that the seuuritia
>100^
2229
MASTKll AND SERVANT.
2230
),,F,I.S Ol." SF.VAKVn-.S .V.
si> \V"f"
. MoUTilA'l'"-
„t^,u..^^•m•v.,f^V\.•>t.^«'■'v''»■l
iS to .auuafot.tu.,, ,,,,..,
...ivnV l■|'LM^tl' I'l. Ill
•::^^"\heothovhaUtoS lu
,01 est. 1" ,,„\vev 11 J^iiH' 111
" 1 i4'l' incline I'll '^ffT'
"■„";;„:;;* :SS. ->- , "■"■
, ei.iitvibiitiou agani.t .m.
, • 1 ,l>f<.v iiu assijiuiui'iit 1''
account, ""t'"^*''. '"^^^ntv ^m;u«.t
^^^"'T vS e^ato from tho UW,
I iiiil<rnieut •V"''., , ^^ lii>t
t,itiontbev..mjsb h^^^^ .^^,^^
c b!VU.'\"\Ht ad.tor wore atUr.
thoclVoctsoft'.^^^' ;„„,,„,,.
UhevitY; '«''^"flec u"t'"''^''''"
u,athcbooksof .v^.m ,,^^^
fv notice f':';"\tm- uiatlu.t-aluT'
ttovart^^>tht-^;'\,-l,.exeout.
e-conveye. t inn i^,,,a,i..cnu.
\„ gave the """."-f'^^.^liate ^ociitu,
hh tvUt:co,uveUl.t,.in:ik
%ul ivlso a 1!!^"^ " . ,,„i,soiiui'ii« ^
. ,1 ,.,;fh the sacui itits- i
Luviththes^cuntits. 1 . ,,. J
liaiiils of H. lieiiij,', at that time, not Kuizahlo
miller coninion law jirocess, no ri;,'iit vested in .1.
to liave them tniii-sferreil to him hy \l., nor was
H. liounil to make good to .1. any lo«« sustained
hy him liy reason of his refusal to deliver the
Hccurities to.l., hut that sneli securities hoing
in the nature of ei|uital)le assets, they slioiild he
(listrilmted amongst all the creditors |iari iiassu. (
Ami. iier Itoliiiison, ('. .1., that this was not a
case to which tlie i)rincii)le of marsiialling the
;v.ssets aiijilied, and that II. had a i)erfect right
to restore the securities to the dehtor. 'I'n/i-
iiiiiij V. ,JiiK('/i/i, 1 K. & A. •Jlt'J, an appeal from
,V. ('. suh-uom. Jiiscjih v. Ilviiloii, ") (."hy. (iSd.
S. was surety to H. for a deht, for wliidi A.,
the in'inciiial dehtor, gave a mortgage to H. a.t a
furtlier security. 'I'lie creditor recovered judg-
uiciit against the surety and sold lii.s lands under
execution. While the ti. fa. was in the slierill "s
luuiils and before the sale, S. mortgaged the
lauds to creditors of his ou n : Held, that as the
surety would, on paying the delit to 15., have
lii'ou entitled to the henetit of the mortgage
which the principal dehtor had given to !?. , so
wlieie the laiid.s of ,S. wore aohl to pay the doht
;iiiil the mortgagees of ,S. were thereby deprived
iif tlu'iii, those mortgagees were entitled to the
Iwiietit of the original mortgage as against any
sulisciiueiit asHigiimeut of the mortgage by the
iiiiii'tgagee, and any subsei[Uont mortgage by the
moi'tgagor. V"".'/ ^'^ Scull Imrix, Ui Chy. 44!(.
The court will not direct as.sets to )>o mai-
sbaUeil in favour of a charity nnles.s the will says
this i-' to be done. Amlcrsun v. Killiuni, '2'2
t'hv. :«:>.
MASTHU.
,SVr I'uAcTicn AT Law— PiiACTiiK in rXuiTV.
l.iical masters and deiuity registrars of the
odurt are not at liberty to practise in partner-
sliipwith solicitors practising in this court, al-
tliiiugh they may not actually share in t!ie
emoliuiieiits of the suit. McLiaii v. CriM.-t, 'A
Chv. Clianib. 43'_'. — t'hy.
VtliniiiiJ
i'mrt of ^'»VV;'''J,Tf "that a'>*"l'^^''H
below, !^^^'y- '^^.veiinitvti.oJ
preiUtor ha.l ""^ any e 1 ^^.^ ^
aitortorecovevyajmu^^^^^^^^^. 1
IJ goods of the debtor t.j^^^^l
p8 father; ""' ^.^fm e -eiUto^' M
MASTKH A\JJ SKllVANT.
I. CoNTUAIT OK HlKIXC.
1. Wli(if(tniuniitsli)fi Vriirh/ J/iriiiiji'miO.
•2. lichri'fn /{I'litlhms, 22.31.
3. 0ll„-r C'(if.«'.v, 2232.
II. Liability of Skrvaxt, 2234.
III. Hl«UTS OF M.\STER AND SeUVANT.
1. J)is))lissiil.
(a) Jnsflfiahk aroiiiKls, 2234.
(b) PktiiUiui, 22.34.
(c) Othn- Cii.t(.% 223.J.
■J. iHJurhs to Sermul.*, 2236.
3. Oimpitfion of Lainf. hi/ Sfrnint — Si-a
Limit.vtion of Actions and .Suits.
4, Scdiu-fioii of Svrnuif — .SVc Seduction.
IIV. Liability of Master.
1. For fnjurij to Serfaiit in Coiiiw of Em-
ploi/iueiit, 2236.
2. For iiriM nf l-\!l,,ir Si rrniil.i, 2237.
3. Fur iirt.t if .Svrrniil in Cniirnr nf' Km-
/iliii/iii'iit,
(a) III III mill/, 22,3!).
(b) Fori 'lint riii-tiir'.< Wnrh-imn -Sii
CoNritAi ron.
4. liiiihi'iii/ ('iiiiii)iniirs mill Sirruiilx—Sw
Ham.wavs ami I!. \V. (,'(). 's.
X. .hltlSDK TION or .llsTK'KS, 2240.
VI. .\ii'i:i:NTnEs-,V,« Ai'imikntk i;.
VII. Akticlki) Ci.KUKs .Sr, .AnoUM'.V AM>
SoLKlToi;.
L CoNTliAcT OK Hll;lN(..
1. W'liiil iiiiitiiiiit.-i In ,1 Vidrli/ //irhiij.
'I'lie plaiutitf was eii,i;a;.'ed by one, on behalf
of all the owners of a sUamer, to sail her by the
season. This engagemeut was verb d, and with
the undorstanding that it was not determinable
without .some notice, lie saih'd her during the
years 18.")."i and liS.'ii; under this arrangement,
during wliich time the owner who had made the
arrangomeiit .sidd out, and during IS,'>7 the vessel
was not run. 'J"he plaiutitf contemted that he
was entitled to his salary for l,S,"i7, under the
agreement :-HohI, that the evidence .shewed no
agreement for that ye.ir. J>lii- v. //i run, 8 V.
1'. 67.
When t1;e hiring is gener.il, it is presumed bv
law to be by the year. Hitliini, r v. Murilniiiiufi,
!) V. P. 48.-).
The ileclaration alleged that defendants, being
associated as a gas company, agreed to eniiiloy
the plaintill' as their manager at a monthly .sal-
ary, and if anything shoiilil occur to prevent the
completion of their project, to pay him a year's
salary from that time; but should they close
their operations by sale of their chartered rights,
then it should be in his ojition to divide oipudly
with them the profits. The plaintitl' then aver-
red that ho entered into their service, received
Ids salary for nine months and a-half, and was
willing to remain : that defendants had discon-
tinued, and sold their chartorod rights, anil
that tlieronpon a year's salary lie^ame due to
him. Defendants (among other pleas) pleaded
that lou^ before such .sale the plaiiitirt' volun-
tarily left their service, and was not then nor
thereafter in their employment. The jury having
fouiid in their favmir on this plea :-^- Held, ou
motion for judgmjnt non obstante, that defen-
dants must succtiod, for the plaiutitf was not
entitled to the year's salary except in the event
of losing his employment by the discontinuance
of their operatiiins, it being intended as a com-
pensation for such loss by their act, not bj' his
own. Wiilxoii V. ^rllll■r i-t uL, 23 (,}. H. 217.
Held, that a new county council of a munici-
pality may, before recognition on their part,
dismiss the otticers appointed by the preceding
C(mncil, and that such oliicers have no right of
action against the municipality for their year's
salary, llickei/ v. t'urponition of tlir Coiinti/ of'
Jinifrfw, 20 C. P. 42». See, also, liromjliton v.
Corporation of BmiitfonI, lit C. P. 434, p. 2236.
A resolution passed by defendants, that the
plaintiff be engaged for the society's office as a
'I.
:223l
MA.STKK AND SKItVANT.
i:lirk, "lit three iiiiiiitlis, on tiial, at a Hiiliiry of
)iS()0 per uiiiiuiii " : llelil, oleiiily not to hiiji-
iiort a count iillc^'inj,' his emiiloynient for a year,
llelil, alMo, lookin;^' at the MtatuteN i'.ieorporating
defendants, C. S. l'. ( '. e. ■"..'<, ."IT Viet. e. .">(>, |).,
the duration and eharaeter of plaintill'H emiiloy-
nient, anil the eirenniHtaneew of his ainiointnient,
as Met out in the report, that the enntiact, so far
as exeeutory, nuist lie under the defendants'
I'lU'ltorate seal. II hijIhk \. Tin Ciiiiinlii I'cnini-
iitiil Limn mill Suriiii/.i Surii/i/, .'<!) i). H. --I.
'2, liilii'iiii I'l/iiliiiiix.
I'nless a specilie eoutraet of liiriuj; he proved,
the eourt will disiountenanee an aetion liy a sou
or daughter against a jiaient for serviees pel'
formed while living iu the parents house,
Sjirii'iiii' if ii.i\ V. Siilii r.-iiiii, I <^. H. 284.
t,)ua're, whetliui' if aii infant hire himself for
wages to his parent the eoutraet is hinding on
the hitter. I'rrl<l \: I'lrlil, \'> (). H. I(i5.
The jihiintifl' sued his father's executor on a
promi.ssory note made to him iu ISaO, )iy his
lather, payable seven years afterdate. Aeeonl-
ing to his own aeeount, tiu' eousideratiou for this
note \v;is work done hy him for his father from
the time he eame of age, iu I81(i, foi' two years,
under an agreenu'ut, liut the note was handed
liy the testator to plaiutitl "s liriither for him, and
tile jilaiiitill' lirst lieeaiue aware of its existence
iu KS.'iS. '['he father died in lS."i(), and the plain-
till took his share of the personal lu'operty,
without saying anything of this claim, which
was not referred to iu the father's will, made iu
1847, though the plaiiitill' was nientioned in it.
He had never asked for payment for his services,
and other sons had worked for the father after
they came of age without charge. The jury
liaving found for defendant, the court, under the
very singular circumstances of the case, refused
to interfere, although the making of the note,
and the eousideratiou for it as stated by the
testator when lie made it, were clearly proved.
Wl.siiiif v. Uisiiiir, '-'S Q. B. "il!).
In an acticin by a son against his father for
wages, the only evidence tending to establish the
relation of employer and einployed, beyond the
fact of the plaiutitl' having workeil, was that of
a witness who swore that six or .seven years ago
the father had asked him what wages he was
getting, ami said that the plaintitt' wanted Jii! 12. "lO.
and that he would give him ijil'i : -Held, suiti-
cient to go the jury. J/i-iir!i:l:s v. llinrickx, 27
il B. 447.
The plaintitr sued her brother for wages during
several years that she had lived with him on his
farm, keeping house for him while he was un-
married : — Held, that from this alone the law
would not, under the circumstances, imply a
promise to pay ; uinl there lieing no other evi-
dence of any hiring or promise, that there was
notliing to go to the jury. Itcdnwiul v. Rcil-
mom/, 27 Q. 13. 220.
A testator directed his son to work his farm
of 100 acres, worth t'50 or £100 a year, anil pay
one-third of the produce to the widow. The
widow and son and an intirm daughter lived
together on the place until the death of the son,
all receiving their support from the farm, the
widow for part of the time doing work equiva-
lent to the suiiport she reeeivi'd, but ni.ikini.
demand foi' her onethird of the iniMluri: h
there lieing no agriicmcnt lietweeii thi'm oi, j
subject. A bill by the widow against iicr sm
reiircHcntative for an account of lur .■sliaic of t
lirodiice was disu'issed with costs, 'lilni,,,;
(.'i/iiiurr, 14 ( 'hy. 'u.
The mere fact that one brother iierfiniiis
! several 'years work for another, will not laisit
' presiim]itiiiii of a )iroinise to pav. Whr
therefore, the evidence before the master w;
that the i laimaut had worked in tiic mill of t
testator (his brother) from thi; year ISdl i
1874, v,'ithoiit any express agreement for wa;.'
but the testator had promised In /« fnilliful
the claimant, and the master refused to admit t
claim, this ruling wat<, on appeal, allirined
the eiiurt. /A- I'ifiliir, Si-in rij v. llitrl,U',
Chy. ()(;.
;i. Olllir Cilsr-l.
A person hiring himself to work with his m
team of oxen, is not within the hritish statin
for punishing labourers dcKertiug their scrvii
Wliilin V. .SliiriiK, Tay. 43!(.
Where the nlaintiti' covenanted tiiat his >
should serve the defendant for seven years,
consideration whereof the defendant rovciiaiit
at the expiration of the time to convey two In
dred acres of land to the son, his heirs a
assigns ; Held, that the .service for seven ve:
was a condition precedent to the right to t
eouveyanee of the land. (Innihill v. I'jliii4i r,
'•'. 4 Vict.
.Sein))le, that a municipal corporation ii„iy ii
tract to hire a clerk or servant to render sirvi
iu the ordinary business ot the eiupurati
without using their corporate ^cal, aid siicli j
vaiit may sue on the contract. Ji'.iiin s v
Cri'i/lf Jliirliijiir Co., 1 i). H. 174. .See />»//,
v. Cln/ot' Tdi-iiiitii, () (I. B. 1, p. 22;{li ; V"'"
Si'liiiiil fnixtn's, 7 (J. B. 130, p. 22;!.') ; //»;//(i
('iiiinilii I'lrniinicnt Ijdiiii hiiiI Snriiii/.^ Suri'li/,
Q. B. 221, p. 2231.
Senible, that school trustees have n
under the School Act, Vict. c. 20, to uiakij
agreement fur providing the teacher with In
and lodging. Qiiiii v. 'J'lii' School Tni.<tii.<, ',\
B. 130.
y
When a person hired by the year il(]i|
without consent during the year, he foifeitsj
wages ; and it is important that this law »lii|
be enforced. Where the plaintilf had taken s
a course, and afterwards sued for his \\ ages,
a verdict was given in liis favour for i'l
court granted a new trial without costs, tliJ
it appeared that defendant hail ortercil liiin F
sum to settle. Jilaki' v. SIkih; 10 ^). M. KSI)
The plaintiff was emphiyed by defeiul.iiil
foreman in a printing office, and sued for hi
due him, proving on the trial that ilefenl
was in the habit of settling the ainoiiiit tliiT
weekly. The jury on this evidence fmiiiill
the hiring was a weekly one, and the
refused to disturb the verdict. lti'lluiiji\
Mai-douijaU, 9 C. P. 483.
In an action for wages of the plaintiff'^
as defendant's servant, it was proved tlial
I feiulant had said lie would give the siiii f
•)-i:^^
MA.STKIl AND .SKRVANT.
'2-2:n
,„t >)ct\Vl'011 th.Mll nil Uu>
V\v)tli ci.st». '.'-'"""■' V.
,.„„ t,r.,t\.er liovlnnus 1..V
\ .vovla-l in til. ... \ n tl.^
^,,v.m.U',l /.. " .M, /,,» to
' f.„.v..f.l-'fatii:iilliiltthi!
Otiti'i- <'<"<'"'•
, • . ,lf to wnrk will. l>is "Wii
;;Usauserti..J^tU..r.c.v.cc..
Tay. «<•».
tiff ■;..vei.aut.;>\ that In^* '-""
lerk..v«erva:.ttu^ ,,,.^^^.,„^
l.eir covimrate ^'^L 1' ^,.^, , -yV.
'" ^^^^ .T" r 74 See />../'-;;
..I Act/.) \ >^t - -'J . ^,,,^^,,,,
Srf^J^cwV- .^.^
is ""V'f '"!.] ;\,v had take., suol;
,,terwards^uedf^ ^^- „, ^^ ,
«*'■"' ti-tvt^^..mtc..«ts.th»..gl.
a new t\i'^\'Y,a.\ otVcrcl kii» tluit
Blab' V. Sht>r, 10 tv'.
W
il(iki'\. -:""■■■' •- '
..rintiug fti^^'^' '^ ."^J that .let...'la»t
fving "'V*^*^ *;;:'. viu.iu.t thereof
r. jury <.n tt»« ^^^ ,,„,! the court?
tisturb the venlict.
I' "^^ ''■"'"« of the Vlah.t.trs.«^
Ion for wages of the ^^j^^,
1-8 servant, It >^aBV ^^,„,vy
^ sai.l heWOuW gl^«
was filing : that the; sdii wont to him at twelve I
yfai'M <it a^e, luiil woiki'M tur him four yearn, ami
tliat (III his leaving del'i'iiilaiit tolil him tii hciiiI
his fatlit'i' ami he wmilil si'ttle with liim : Fli^ld,
that tliis was ih'arly eviik'iue to lmi ti. the jury
lit an a^iri'cmciit liftwiH'i. ]p|aiiitill' anil ilet't'li-
ilaiit. /'/V/i /■(■//;/ V. AV/m, L'S (^. IV I ST. I
Where servieeH were reiulereil liy tlie iilaiiitill'
til tlie (let'ciiilaiit, in t'X|ieetati(iii that tlie ilefun- I
ilaiit wiiiihl mairy her, Imt there was iin ciiiitrart I
iif liirin;.'i ami the plaintilV ex|iiessly saiil that I
slic was nut to ruL'i'ive anil iliil imt exju'et wages i
111' |iay : Ifclil, that mi ilet'inilant's nt'nsal to
marry the jilaiiitiff no action woiihl lii. as n]ioii an I
iiii]ilicil jironiisclo jiay the valm; ot such services i
in money. I'ljliinmm v. Sliiifi/, '2',iV,. I'. 114.
W'hcie an agreement cmitains the ininics of
the two rontractiiii; [larties, the siilijcct matter
iif the contract, ami the ]iromise, it is liimliiig
nil the party signiii" it, although not signed liy
the other party. In this ease, the delendant
ciiteied into a written agreement, wherehy, in
(iiiisiitei'ation of a laM'tain salary .■mil allowances
til lie jiaid to him liy the iilaintitVs, he agreed to
si'i've them in their liusiuess as hankers fur three
\Tal•^^, and if he should leave within that iieriod
til pay then. •':<4()(), as liipiidated damages. 'J'lie
aj^ruciiieiit was signed hy the derendaiit lint not
liy the hank : Held, that defendant was hound
lij it, and having left without excuse he was
liahle for the iJ-lOO, which was recovered .is liipii-
iliituil damages, and not as a penalty. Jiaid' nf
iVitiVi Xvrlli Aiiiiriid v. Si/iip.-<(iii, '2i C. P. 3.")4.
The declaration was upon an agreement hy
ili'feiulimts to employ the plaintitl'as their ai,'ent
tiiiilitain apiilications fur policies, alleging their
rifiiM.il to take him into their service as agreeil.
Di'fc'iiitants pleaded that the agreement was suh-
jat tip a eonditioii, that the plaintilV's appoint-
iiioiit slionhl nut go into etl'ect until he should
kvu furnished security satisfactory to the de-
(ciuli.iits' general board for the due performance
ii( his duties ; that he did not furnish such
seomity ; and that his a])pointment never went
iiitii uti'ect. The plaintilV replied that he did
furnish such security as ought reasonably to
Iwve satislied the board, and that the board un-
rcasiiiialily, capiieiously, and improperly refused
to liu satistied therewith ; - Hehl, replication
kil ; fur the furnishing security satisfactory to
tk hiianl was cleai'ly made a condition prueo-
ilfut til the appointment, and it was not alleged
that (k'feiidants were not acting bona tide under
an hnuest sense of disaati.sfaetion. MncnKitli v.
C.mifnh nilioii [j'lfi- Afisoriittiiiii, 3(5 t,). B. 4,")!) —
Hagii'ty, sitting in N'acatiou.
By an agreement signed by both the parties,
pbintill' agreed and bound himself to defendant
tiiaot us his book-keeper, &e., for five years, for
asiiecitied sum in each year, and to pay §10 per
niiiiitli fur board, to be deducted from his salary,
and also to pay his washing and other jjersonal
exiieiises. It was added: " This agreement to
coimueiiee from 1st February, 187(5, and end 1st
Febnuiry, 1880 :" — Held, that there was no ob-
ligation, either express or implied, on the defen-
ilaiit to continue his business or retain the plain-
tl ill his employment during the five years.
fiWii' V. IIViAsA, 27 C. P. 555.
I Wlwii a minor enters into a contract for hiring,
the wages he earns belong to him and not to his
1 parent. JJclmkniier v. linrton, 12 Chy. 5(j9.
II. l.iAiiii.ii'v OK Si;i!\As r.
.\ servant who has notice of an injiiiutioii
may lie loimiiitted for breach of it, tliminji h,.
has not lieen served with the writ. .\nil after
leaving his master's xeiviie he continues lioiuid
hy an iiiiiiiiction issued while he was a servant
against tlie master and his servanls to restrain
waste. /Iriiirii v. Siiiji, 12 ('hy. 2."i. .See, also,
tlilflir'nl V. < 'iii-ji(}rii/iiiii nf ( 'iinl' i(, 2(1 ( '. I' 1, p
22:J!).
III. KlilHTS (i|- MasIKII AMI SiciiVAM'.
1. I)isiil'l^\(ll,
(a) Jii-^tijiidilf (li-iiiiiiiU.
Tn assumpsit against defemlant mi an ;igree-
nieiit to serve the |ilaintills laitlifully, the lilaiii
titVs assigned as a breai'li that during the time of
service the defendant winiigfully liehaved him
self in a careless and negligent iiiaiiiier while in
their .service :- 1! 'Id, had, mi special deiiiurrcr,
as not sutlieieiitl, spccitie. (I'Xiill it ,il. v.
L'-hjIi', 2 i}. li. 204. •
Defendant liireil plaintiH' to make for him
certain machines and superintend their use in
his niaiiufaetory for live years, unless liefore ter-
minated as thereinafter in'ovided ; and in c.a.so
of failure of the plaintilf to peiform fully the
agreement, it might lie tcrmiii.itcd .at defi'iidant's
oiition by written iiotiee, and the [ilaintifl'
should be responsible to ilefcnd.int in damages
for sueh failure ; and in case any dispute should
arise as to the sutlieieiicy of the inaehines, or
lilaintitl's performance of the agreement, the
same should lie referred to three arliitrators
chosen in the manner stated, their deeisimi to be
linal. To an action by the plaiiititl' for wrongful
dismis.sal, defendant pleaded termination by him
of the agTeement hy written notice, because of
the plaintili's failure to perform it in certain
particulars specitied: -Held, I. That defendant
was bound to estaldish the ground mentioned in
his noticj for tei-minating his agreement ; .md 2.
That the agreement to refer, heiiig collateral, and
not a condition precedent to the plaintili's right
to sue, could not liar the action. <i'/vi/</.< v. JiU-
liniifoii, 27 <^ 1!. .')2().
The second count was for \vriingful dismissal
of the plaintiff, who had been hired by defemlant
as a merchant's clerk for a year. I'lea, that de-
fendant had large sums of money stolen fnmi
him by some persons : that the plaintitl' being-
then in defendant's cmploynient, and having as
such clerk had said money in his possession, did
not nor would account for the same, whereby
defendant had reason to and did suspect that
plaintiff had fehmiously embezzled the money,
and by reason thereof defendant dismis.sed him :
— Hehl, bad, for no facts were stated to justify
defendant's alleged suspicion. Pultcr.<uii v. .Scolt,
;]8 Q. B. «42.
(h) PliwIiiKj.
A declaration setting out a contract to pay a
certain sum per year for services a.s long as a
party should remain in such service, and a rea<li-
ness and willingness to continue, will not entitle
a party to recover for a wrongful dismissal, un-
less the declaration plainly and directly allege
that the defendant did agree to rotaiiL the plain-
'Tf^T
SlM.I
MASTKH ANI> SKIiVAN'l".
titl'iu IiIn Hcrviri' for tlii' ]n'iiiHl within wliicli lii'
i.s Htati'il to Imvf iirili (liNiniHHiil. ItiiiiiiA v. Tin
Ci-nlil Ihnixif Co., I (,>. H. 174.
A c'lorU (PI- HL'iviiiit c'liKiijii'il nil a yearly liiriiif;
I'luiiiiit, nil Ill-ill^' \vi'<>iii;iiilly iliNiiiiHHi'il, rci'iivi'i'
IiIm yciir'H \\,'i|,'t'H ill iin lutimi nii tin* coiiiiikhi
inlllltH idimiU'lKiil lii'tiiiv till' rx)iil'atii>ll nf till'
yi'iir ; iiuil tliiH, ultlimigli tiii' liiiiiig whm turotii'
vi'iir ut a I'l'itiiiii muiii \ivv iiiuiitli. Midiijlhi v.
'( '.(///,//, L' (,>. II. ;«IH.
Ill nil iictiiiii lor wMingfully tlixiiiiMMiiig tliu
l>liiiiititr, iv .«'li(Mil ti'iU'lu'i', ji iili'ii uvi'i'riii){ tlii'
liisiiiiHHal ol till' |iliiiiitiir liy a third party aiitlin-
rizi'd liy law to ilo no is liad, lii'injj an argii-
iiRiitativi' iltiiial of tlii' wroiif^ I'liiinilaiiii'd nt'.
fiinijilirll V. nintk it III. ,4 i). li. 488.
Ah to the modi' of sitting out an allfj,'i'd
diniisi- from tlii' Toronto ( 'liilt of I'urtain rooms
and .iiiartnii'iitH in tlii' ihili hoiixi! to a sirvaiit
or .sti'Ward of tliu liiili, m iio ri'lii'd uiioii tin.' said
diniisi', as giving him an t'xrliisivt' jiossi'ssioii
mion wliiili lii'i'oiild maintain tiTsjiass. .Si'iiilili',
that iindi'r thi' diinisi', as sit forth in the ii'pli-
catiirii, an ai'tion of tivsjiass could not hu siis-
tainud. If the servant had lieeii inn>rinierly
dismissed he should have sued in assumiisit for
a lireaeh of eontraet, not in tresiiass for taking
jiossession of his aiiartuieiits. \\'i/luiiii.i v. Jli r-
riik; ') Q. H. tii:<.
In an aetioii liy a teacher against the school
trustees aiiiiointeil liy the Act !> N'iet. c. 20, set-
ting out a sjieeial agreement to retain the jilain-
tili in the em|iloyini'nt of a teacher for one year,
at a certain «alary, itc. ; and al.so uiion a parol
agreement, for wrongfully, and without cause,
tiiiiiing tile jilaintirt away, and jireveiitiiig him
thcrehy from earning his salary ;- Held, that
the declaration in lioth cases was had in not aver-
ring the agreement to have lieen niadu with the
defendants hy their coriiorate seal, l^iiiii v. Tlir
Schiiiil Tnixliis, 7 (I H. ISO.
Action uiion an agreement in writing lietwecii
}ilaiiitill' and defcmlant, hy which the iilaintitt'
was engaged as editor of a iiewsiuvper for luie
year at a saLiry payable quarterly. Defendant
pleaded that the plaintiH' conducted himself in
such an improjier, oti'eiisive, and disohedieiit
manner towards him, that he dismissed the
1' aiiititl', as lie lawfully might ; — Held, a bad
plea. Jliiiitir v. Fitoti-, 12 C P. 175.
(c) Other Ciixci.
The plaiiititi' had been appointed m.iny years
iVU*'i I'y *'"-' e'orporation of the city of Torontd,
w eigh-master and clerk of the tish-market. He
had been voted each year by the ennimou council
a sum of money for his services during the then
current year. The iiiuncipal year began on the
2.Srd of .lanuary. For the year 1847, the plaiii-
titi' had been voted £00 for liis salary. On the
.SOth of June, 1848, the eorporatiou having de-
termined to farm out the plaintiff's otiiee, he
was dismissed without notice, and without any
allowance being made for his services between
January and June of 1848. The plaintiflF brought
an action of assumpsit against the corporation to
recover a year's salary at the same rate as had
been voted him the previous year. The corpora-
tion resisted the action upon the general grounds :
1. That assumpsit for services rendered as upon
an I'Xi'i'iiti'd contract not niiilir the ('(i||m,i
Heal, uoidd not lie. 2. That the plaiiitiir h
his olliic at siiiri'iani'i', both as rispcctid tin
anil allowaiiii'. .'{. That licfort' action luiiiit
the riirpiuation hIioiiIiI lia\'i' lui'ii ri'i|iu'Nti'i
Note an allowance, Imt : Hild, that assuiin
«olild Mi'll lie; and that tlioiigh the plaiin
holding ills olllie liiiriiii; pliasiiie, by the ur
ilii 111 |iiiiation, eiiiilil not recover the wiiojc^,.
salary for ISIS, still he was entitled tn Ids Nil
for IS4S to the time of his dismissal, al the i
of salary voted to him for lfS47, and that no i
vioiis demand u[iiiii the I'lirporatinii to vnte
allow aiiie nied be proved, hiiiiji.iiii v.
Cilil ,,/ Tnmillc, (i (/. li. 1.
The ]iriiperty of thedraiid Itiver Na\i:,al
Co. having jiassid to ilefeiid.ints, a inunir
corpnration, plaintill was ap|iointi'i| iiiaii;
thereof under their eomiiioii seal, at an ,iui
salary, from 1st .lanuary, ISIi."!, an appnintn
to wliiili he had been ]iievious|y reroiniiieii
in a part of n enininittee of eonneil, and li
resoliition the mayor «as aiitlmii/eil to exei
the necessary bonds between ]ijaintill and de
. dant : Held, a valid a|ipiiintiiii'iit, and
necessary to have liecii made by by daw. I»e
, daiits lia\ ini' ilisiiiissed pl.iintill in .Se|iteiiil
18(17 ; llelil, that such dismissal, before tiie
, of the year, was wrongful, defend.ints ha\
recogni/ed plaintill as their ollicer diiiiiij/
I second year. /Iniinilitiiii v. T/if fur/iiiriiliin
Jiriiiitf;,',;/, lit C. I'. 4:{4. .See //;-'/•-// v. (
piii-iitimi iij' lliiifnir, 20('. 1'. 42!», p. 2-.':i0.
AVlicrc a person in the service of aiinthei' iin
a yearly hiring is dismissed for cause liy his i
j jiloyer during the currency of any one year,
j is not entitled to any remuneration for the \
I tioii of the year that he has served; but if
I has been paid any portion of such year's sail
i the employer is not entitled to recover it li;
I neither is lie entitled to have it applied
count of moneys payable in respect of a p
I year's service ; and although the enipli ,
; dismissing his employee may have assigiie
I ground therefor, he is not precluded frniii
I wards shewing the entire ground for siu
missal. TiUi.^ v. ]Vilki.s 23 C'liy. 4;V.t
2. Iiijiii'ii ,* tu Sivnuil-i.
AVhcre in trespass for an assault and
for wounding and kicking, and for teariii;;
plaintiti's clothes, the defendant justilie
a moderate correction of the plaintill' as iiis
vant — the plea was held bad on deniiiriei'.
atl'orded no answer to the wounding ami tu
the clothes of the plaiiitifi'. Mil<-lit II v, /'■
2 (,». B. 430.
'\el
IV. Ll-vbilitv of Ma«tkk.
1. For Injury to Scrraiit ill Voitriii'oJ' Enijih:
The plaiiitiflf, a boy of twelve, in the ci
of defendant, was left with two other 1"
attend to a Hax scutching machine. lit
never Jittended to the machinery bcfure, :i|
said he had received no instructions. Till
boys were sent away, and the plaintill', [
tempting to replace a roller, which frt'i|i|
came out of its place, had his arm crusl|
some cog-wheels which were not covered.
not "»
0.1 ;l
..»«
MASTKI5 AM) SKHVANT.
'2-2W
"■\„.tU AS ivsl|t"ti|\ t.i.uiv
;,t WU,n- ^vct.cm tMou, >t
1 \,,vv.' I't^i'" •■'•'l'"'^«''' t'
1,V the :iil"l
^•;,s.■utitlc.Uo\n.^u\..•V
' W ais.niss^l. al t\.o nvlo
' , lM7.A..'Hh.lunvv.■
iiiiiiiiy
i\ii iunmiil
is(;r., ivii i'l'i
lllilltlUI lit
I
'■ : ,vvii.us\.vn>o.iiii..ii'U.i
V;v\l.\ ''IT' , ,,,,V. I'vlVll-
r,r::'fi- !i-v aim.;, tl.^,
till •)'' ,,'1 (',ll-l"lllll'"ll "J
.uiutUo..;vu-l-tTi:"t
eli>\il"y'- ""V . • 1 1-
!„., lie is* "I't '
tin; iiitivL ^
';^..l«ac.llvo.uii.t.r-
liijiif'i
,.<tii Si-yo
»^<.
h;itU'ty,
Ibcs, tilt. .Iti. J i„ti,v ,is Ins *cr.
H'"^ SJ" --^'"^ ^"^'Vr;"T
Liauiutv.fMastkk.
i,/i,i;«i«l.
;/(i.SV;-''0
,,,0 ..<■,-•«..< ;"('<""''^'"i^'^'"'' ,,
T f tv.-..lve in tbf umvH
ke.l to tlie
■I'lic m
Irecoivet
ino h^tvuctum.^^.^^ _,,,^
•ecoivu" • ., ,,\;uutin
hIuiIk wirr nil till' (ililicmitf siilf cp| tin' iiiMcliiiii'
tidiii whiTi' till' |ilikiiitiir w:is ri'(|uin'il tn wnrk,
aiiil till' nilliT fdiilil ri'iiilily liavi' liriii ii'|iliui'cl
witliiiut ^iuiiij,' iii'iir tlu'iii. 'I'lu' ]iliiiiitill' fuitliiT
suiil that hi' put tlii' mlli'i' on tin he huil si'cii the
liiiys (III it, hikI that li<^ liml not hciii nsmiiu'iI not
t(i j,'o near the to^'-wheels. The ch't'imlant's
iviih'Mie, on the other haml, sheweil that the
iilaiiititl' liail heen iliHtiuetiy wanieil ; that the
ntlii 1' hoy« hail not iilaeeil the roller on as [ilaiii-
tilliliil; and that the l>laintill' had heeii .shew n
lidW to (lilt it in. It also a)i|ieai'ed that the
iiiai hine liad heen in use several ye.-irs without
all aceideiit, although hoys had eoiistantly heen
iiuiiloyed ahout it ; Held, that theie wa.s e\i-
,Kiu't' to go to tlie jury, if the |il.iiiitiH"s state-
iiiiiits were true, and a nonsuit was set aside.
i;,,,,-/ V. A'-W, -AH), li. •>\-2.
AiToss the hatt'hway of ilefi'iidant's vessel
tlii'ii' was a string heani lasteiieil liy a eleat for
till.' support of the hateh, and the men in deseen-
iliiii,' the hateh to trim or load tlii' vessel used
til swing down it, holding on either hy the lieam
„r tlie eomhings of the hateh. The plaintitl',
rii^'aged a.s ii hand on hoard, while deseeiicling
till' hatch, rested his whole weight on the heani,
iiiiil the eleat hapiiening to lie loose or out, he
was thrown down and injured. There was no
[,i(i(if of knowledge either hy defendant or the
master of the vessel of any defeet, or any ile-
iative eonstruction or unsoundness of material,
imr was it shewn when lU' how the eleat eanie
iiiit;— Held, that there was no cviilenee of neg-
liii'liee in defendant ao as to render him liahle,
,111(1 IV nonsuit was upheld. Jarrii v. Mm/, '2(i
1'. 1', .•)•.>;?.
'?.. Fur A c/.t of Filliiir Si-rriuils,
Action against a railway eoniiiaiiy for the
1 kith of one I)., an engine driver in their
Uiililiiyiui'iit, alleging that they negligently em-
1 iliivi'd out' U., iiu incompetent person, as switch-
iuiiii, and that hy his ineonipeteiiey the collision
Iwoiirred. It appeared that H. neglected to
mist' the seniaiihiiru at the east end of the Stmt-
I if.nl station, ao aa to prevent l>.'s train going
Iwfst from entering the yard while a freight
Itraiii was coming from the west, and this caused
Ithe accident. According to the testimony on
liiitli silk's, Jt. was an intelligent man, employeil
htwiiik which one witness said could he learned
lin a (lay, another in two or three weeks, and
Ijiter lifing a week ahout the yard he had per-
Ifiiniicil this work regularly for two weeks with-
pt omiplaint until this occasion. A vevdiet
piiiglieuii found for the plaintid': -Held, that
iWrc was no evidence to go to the jury that de-
leiulants negligently employed an ineonipetent
Vtson: that for li.'s neglect, he heing I). 's fel-
Vw servant, the pl.iintitl' clearly eoultl not
(tciiviT ; and a nonsuit was ordered. Jhnrill
.iJmil Trinik H. W. Co., 25 Q. B. 517.
i Plaintiff .18 administratrix sued defemhints for
it death of her busb.and, caused by .a railway
pleiit. It appeared tliat deceased, with three
Ihers and a foreman, were emjiloyed with a
mlcar in clearing snow from tlie track near
neliouse station. The foreman saw a freiglit
un approaching at speed a (juarter of a mile
', upwi which he left the men, telling them
Ito dear," and wivlked towards it waving a Hag.
Vo of the men stepped aside when it came up,
Ipiit deceanvd and the other man r;iii in front of
it along the tr.uk, until it drove the iiand-ear
against and killecl them liotli : llelil. i learly a
ease of eontriliutory negligence on the part of
deceased; and a nonsuit was onleri'il. One of
the liiakesmeii on the train swore that the hrakes
well' defei'tive, and that the tr.iiii > oiild not
therefore lie stopjied in oliedieliee to the proper
signal, which was up. It appeared, however,
that the defects nieiitioiied hy him could have
lieen removed liy tightening a liidt or shortening
iv roil, w liicli any one employed hy thedi fendants
eoiilil have done in a few minutes; .md other
witnesses swore that with the InaUes as they
Were .-ifter the accidi'iit the train eon Id have lieen
stopped : that it canie up at a speed shew iiig no
intention to stoji at all, and with the eiigini!
reversed r.iii ai(iiarter of a mile past the station,
and that at the next station, on the same grade,
and with the same luakes, it was stopped with-
out diliiciilty : Held, that these facts conclu-
sively shewed the iiegligeiiie not to have been
that of the defendants, hut of tluir servants
engaged in a common einplnynieiit with deeeasjd,
and for which, therefore, defendants were not
respoiisihle. I'hiiit v. 'Iniml Triink It. IT. Co.,
•r, i). B. 78.
Hechiration, that I. S. (husband of the plain-
till',) was a servant and wurkinan einiiloyed by
certain contiaetors with defendants in ballasting
defendants' railway, and in performing such
work certain cars and engines under the guidance
and management of defendants' servants were
used for the transjiort of materials and the con-
' veyancc of wurkmen ein]iloyed by the contrac-
I tors, said workmen not being .servants of the
defetidants, to and from their residence iind
their work, for reward to the defendants ; and
that I. S., in his life-time, being such workman,
becamo a passenger on a ear clrawii on said
railway liy a locomotive under the ilefendants'
management, to be carried from his place of
work home, and as such workman and passen-
ger then was lawfully on said car, yet the defen-
dants so negligently managed the train, i\:e. , that
1. S. was thereby injured, and died. .Semble,
that tlie deceased could not have been considered
a fellow servant with those employed by the de-
fendants. S/iri riiKiii V. Toronlo, Cni/, uml linirc
I!. II'. Co., 34 t^). B. 4.')l. See, alsii. Torioi v.
I Crawl Tritnk /.'. 11'. Co., 20 (l H. -Wli.
' Declar.atiou, that the defendant, an hotel
keejier, and not a contractor or bnihler, was eii-
'■ gaged in erecting a building, being an addition
i to an hotel, and employed one (i. as architect of
I said building to furnish the plans, select the
materials, employ men to erect the building, and
generally to superintend the erection thereof
for the defendant, and represent the defendant
: therein : that (J., in pursuance of his duty and
authority, employed one M. as snb- foreman in
the erection of the building, and the plaintiff a.s
a worknnin under him : that G. directed M. to
remove some lumber to the upper Hoor, which
the plaintiff, with other workmen under the de-
fendant, was ordered by M. to do ; and the
I plaintifi", in pursuance of his emjiloyment, Wivs
: lawfully on the upper floor, the said floor having
i been constructed by the defendant and (i. in the
j pursuance of his duty and emi)loyment as afore-
said, where, by the insuHicieney of the beams
supporting said Hoor — which insufHciency was
', known to the defendant though unknown tu the
TT^.
22;J'.t
MASTKH AND SKUVANT.
l)la!litlll' .mil thf iii';;liv;rlii't' nf ( I. ilinl tlif ili-
ti'iiilniit ill till' I'liiiHti'iii'tiini lit' Kiiiil lloni' anil
liiiililiiiir, the Maid tliiiir u'livc way, and tluTi'liy
|ilainlill' was injiirrd : iTcId, nn di'iiiiincr, that
till' dri laiatinn nIiowiiI a Kimd lailwi' nt' artimi
ligaiiiNt di'liiidant, tnr it miiMt lif takiii tn nuan
that till' ili'lcndant had the liiiililin;< iiiiili r liix
own I'lirt' and Miipri'V iHiuli, mh that v\hat(l. did
Wi\t till' ait 111' tlir di'l'i'iidiuit iiniy, and imt tlii'
iK'tnl' <1. an n I'l'lliiw wiiikniali with tlu' |ilaiiititl'.
iti'iiKirks aM ti> till' iiMc lit' anilii>{in>ii.i lan;,'iiaKij in
iiii'iidiiiK' Min<i„„<ii'/ V. i)iii; :ii (.t. II. (•.•.';<. A.
\\'il.- sitting aliini'.
3. /'..
nt' Kiii/i/iiiiiiii lit.
.\<'f.< III' Si I' I'll lit ill full I'M
(a) (liiii riillij.
A niiinti'i' is lialilc I'lii' the artH of IiIm farm kit-
vnnt in iiiUMHindin;,' ratth' in hix aliMi'iici', thi'
Bi'l'vant acting' within tlu' gciuial hi'uih' uf his
mithoiity. ,S//.(//'o/</ V. Ilnlilili, v.. 'I. 7 Will. IV.
'I'liL' plaintiH had wniknu'ii attending a Htraiii
mill, hi'fciidant lii'inj; intfri'stnl in j;ittiiigMaw
Idjj's I'Ut nji, R'liiiivud iilaintitl's liii'iiian and
jihu'i'd aniitlii'i' man in his sti'ad, and addi'd
8t'\i'ial I'f his iiwii wiiikmi'ii tu thn.si' I'liiidnyid
l)y till' iilaintiir. Owing tn sdiiir niismanagc-
nii'iit the hiiiliT linrst ; Meld, that then' was
t'vidi'iii-e fur tlif jury that di't'i'iidaiit was a trcs-
nassor : that whctlKr hf was ri'siiiinsihlt' as smh
fur the injury duni' to tin.' Iioilor di'iu'iidi'd on the
nature and e.\tent of his interferenee, and how
far he was inijilieated in the acts wliieli eaused
the exiiliisioii. Eliiili v. Wiiitiis, ">('. 1'. 4}U.
Where the declaration alleges that at the time
when the negligeiiee or wrongful net was eiim-
initted .\. was defendant's servant, and that .\. '
(lid the ai't, the faet of .A. lieing sueh servant is '
il material allegation, w liieh is not jint in issue
under not guilty. In this ease the deelaration i
alleged that the iilaintitF and defeiiilaiit at the
time when, &e. , were jiosse.sseil of adjiiining
land, and that (i. lieing defendant's servant, I
negligently set out a lire, wliieli extended to
plaintitl "s land ; Held, that the word " heilig "
referred to the time of the alleged negligenee.
Jliiiili r.iiiii v. ('/iiijtiiiiiii, .'} I'. Iv. 'A'M. — C L. j
C'handi.— A. AVilson.
I'lion a road, not a regular road allowanee, hut i
formed of land given hy the owiier.s thereof for '
their general eonvenienee, statute lahnur had
heen jierformed for some time under the regular
iiathmaster, and the puhlie funds exjiended :
Held, that the road must he considered to he j
under the charge of the nuinicipality, so as to i
render them liaole for its state of rejiair. 'J'be
liahility to keep in repair extends to overliaiiging
trees liahle to tall ujion the road and cau.se ilam-
age to passers hy. Where therefore defendants'
servants, in getting materials on land adjoining
the roail for its repair, felled a tree which in
falling lodged against another tree near the road,
and heing left there afterwards fell and killed
the plaintiff's wife while passing along the road :
— Held, that the ilefendants were liable. Per
Owynne, .1. — The defendants' servants as well as
the defendants were liable, hut in the event of
the latter being held liable, they would have a
remedy over against the former. il'ddiriKt v.
Tin Corjiordtioii (if' till' Tuwnsh'ip of Ciinlrii, 2(!
C. P. i.
ilth of April, I Slid, at .SS iier nioi
lieing that he was to work for h
\'. .Il Hl.'^lili riiiN iiK .llMlli K.'*.
Si, C. S. r. ('. i: ;.; ,' .','» ]'lil. ,: .!./, I), • ,;,;
'•.■. .'•», .'.:, .'';.
The act, 1(1 (t I I N'ii't. e. '1\\, does nut i
to the rase of seliool IniNteeH and school tr;i
/( rr Jiili-i, 111 <,». It. 1!I7.
Wh rt! it is sliiwii to a jiidgi' in eliaii
that there is a reasonalile doiilit as to the le;
of il I'oiiN ii'tioii under the act, the piil;;i'
order the issue of iiwrit of cert ioi.ii i fi,|
removal of the ennvietion, niitw ith-tandiii;
eonlii Illation of the eonvietinn by the I'm
SeMsions, to whom an appe.d was iiiade a^
the legality of the e.in\ ietioii . /// ;■, Snh
H I-. .1. ■JTli. ('. I,, rhaiiib, Iti.liardH.
I lefeiiihiiit I ngagi'd to wiirk with (■ncT .,
iitli ; til,. I,;,
i.df a niiiiitli
IS long after as he was foiiml to suit, or init
fall ploughing was done. Me left on the '.'I
.NoN'eMiliir, having toM T. about three v
previously that lii. wdiild like to go tliii
which T. assi'iited. I lefend.uit eoni|il.iiiic,l
before a magistrate for not ]iayin^' his w
and w.is indirtid for perjury eoniinitted mi
oeeasion, and found guilty : Meld, that
hiring w.is sueli as to give the magistrate
diction under the < '. S. I'. ( !. e. Tri, ain
convietion was allirnnMl. Itni'mn v. Il'ii//,
(J. I!. \\\.
.An older for the ii.iyment of money, mai
a justice iimler the act, is not a eonvietimi v
it is necessary to return to the (.Miarter .'^esf.
Itiiiiiiiij ij. t. v. Jiiiii.i, ".'I (). I!. .'(70.
Held, that a conviction uinhr the act, i
r. ('. c. 7'">, H. I'-', imist shew that the p,
against whom the complaint is Imlgnl w
sei'vant at the time of the conviction or
that the complaint was "upon oath," ai
what manner the wages an? due. //. l/i.i
!) I-. J. :JO-.>.--t'. ('. Cooper.
,\. engaged I'l. and liis hired man ( '. t(
a house for hini, and agreed to pay li, liis
nary wages, and ij^l ]ier diem for ( '. .\. i
default was convicted before a magistratt
this act, and onlered to pay 11. .»!|."),.'i(l tn
services. A. appealed, and the eiuivictii
((uashed. i>. then obtained a sunr!.mis ti
cause why a certiorari should not issue ti
the order i|Ua»hing conviction, Ac. in
(Queen's Heiicli. : Held, that the aiipjiciul
a right to the certiorari; but senible, tliattf
ceedings to reinstate the conviction \u
necessary : that the agreement rcfi'ircil |
not eonie within the second branch of ('
C e. 7"), s. 3; and semble, that the terms j
the first brancli of that section refer tn
nients where master, journeyman, ami Lj
belong to the same calling, and one
the other to work for him in its cxuicil
/•,' Diiii/,; 4 P. H. 32. —C. 1,. Chaiiili.
The alleged conviction in this ca.sc (ll
action .against a J. P. for false im^irisiiiinil
nialiciims arrest) was nuide under the sil
authority of C". S. U. V. c. 7<">, hut notif
peared on the proceedings to shew the
of master and servant, or any otl'ence imi
under the act, and it therefore sliewed il
diction in defendant. McDuiHihl v. Sli%
Q. B. 577.
i-1 10
„■(; v;.i.
2241
MKDICAL lM!A(TIT[(>NEll>t.
0')
,,„^ OK .USII.K.S.
..) J'i'''. •■•■''•'• ^''
-4, ..'■'. •■'■'•
; 1... aa, tw. I'M;;- «;l'
1 ♦., work with ''lie I '■uth.
. wiVH Inllli'l to Him.
•^'''"i T M»-"t t\.n.. ^^..■^
r'^v ;.u;:^■.-^f-»"'■''•
\ f"v I""-'",?', ;"n"i" tu.t tw
as t..my^'V'\ .'",.'- •;.-,. ii„a til,
J.J unist SIUAN ^^,,^^ ,^
t'""' "' ..ui..m oatli,' iui'l »'
Aaii.t xv^i« W ' ,^,;^,. V. h>.
tUoNvagosiUV \ia. /
1 • 1 nl-ll\ ( . til l'"ll''-|
S., It jiiHticu of tliu la-iuT, uiMiti nil iiifiii'iiiiitinii viiii'ti, Hulijoct to nny locnl liiwn ri'H|ii'i'tiiij,' the
laiil lit'fiii'ii linn, insiifil ii Huiiiiiioim for non-jmy- ' profi'MHioii thi'iv. Slidnrv. f.iiilini, '2'2*}. \\. 177.
imiit of \va>,'i'M uiiiU'i' ( '. S.
IVlialljl' lnt'ofO IlilllNflf
('.
v">^ ^''"^ 1 * ,..iv
liiii iiViU-
r. «'.
(.>, HCl'.
Thii aii|»'llaiit having liuoii I'ouviitfil licfure
rttiivnal.!.' kIoiv InniNrlf or hu.I, otlin- jimtu'-M j„,ti,.,,„ „,■ ,„^,.i„^, ,„,,,t i,,,, („ |,., ., ,,i,v,i..ia„.
fts iMi«ht flun I... prrKcnt On tin- r.tiin. two ,,,,„j,,^,^, („ .j,, Vut. ,■. Mt. ai.|,ial.,l to thV t.»uai-
..tli.r JUMtins w..n. ,,iyH,.nt, ulio Nvithont any t..r Srs^ion,, aii.l w.ih foimii Kuiltv : llilil. tliat
((bjcrtioii from .S., iicanl thi' riiin|ilaiMt «i(li Mini
At tlic coniliisinn of the immc, thi'ii' two tlioU),'lit
till' I'oiniilaint slioiilil lie liisiiiiHHiil. wliiii' S. was
ill tavoiM' of tilt' riainiaiit, :inil, a^Miimt tlic |ii'i>t('st
iif till) otliiT two, S. iiiailii an ririliT r('i|iiiiiii^'
till' ilt'fi'iiilaiitH to pay tin.' claim ami I'ostM, ami
ill (ii'fault that a iliMti-i'SM hIioiiIiI i.s.suc ; flic two
dtliri' jiiMtici'M inaiii' an oiiIit ilismiMHiii;,' the
i(iiii|ilaint. ."^iilisi'i|iu'ntly a fornial I'onviition
Hiis ilrawii iii>, ami ni^nfil anil Mraliil hy S., tliu
wliuli' iii'iM'crilin^'s lii'inj; nut out ax iH'foru him
;iloni', ami afti^rwaiil.s a iliMtrcMM warrant was
issiKil hy iiim. 'riic miiiutcM of tlm cviileiu't'
t;ilvi'n itowii liy tlii^ iiiajiiMtiati's' I'lcrk wuru
lii'iiiliil iis ill ii cause licfoi'u tlu^ tlitvi' jiiMtii'cs; -
lii'M, that tlio convii'tioii was I'lcarly hail, ami
till' sessions hail no |ioWel' to leserve a ease fov
the oiiinioli of the emirt illiiler I '. .S. 1'. ('. e.
II'J, tlie a|i|iellant notliein;,'a iiei'Mim "eonvieteil
of treason, felonv. or misileiiieanniir." Seinhle,
that if the L'ltth' N'iet. h.nl in terms .leclareil
tile act eiiar>,'i'ii unlawful, it woiiiil iiave heeii an
inclii'tal)le misileineanoiir. /'"/kwo// y, Wll.iaii.
•.Mi (,i. n. 4.">.
,Scc Hwui'ii did. V. Sftill, •Jilt,;, li. i;!l, infra.
ir. I'KKS at 1ni.iI Hsjs.
A ineilieal witness, in olieilieiiie to the eoro-
ner's siiinmons, atteiuleil liiiriiii,' two iinniests
hehl
iiiiist lieiiiiaslieii, S, iiaviiii; no .'xelnsive riniit to m.eiileiit, ami oeeiipyin^' sevirai ilays
ili'iil witii tlie eas(! iin'ieiy hee.iiisu lie li.'ul issueil ' " " '
tin' SlllMlnollS. I'rilillil V. Mihirit til., 'J') V. I'.
||4. " llagarty, sitting alone.
A magistrate having,' eiitert.iiiieil a easi; uiuler
tlif Master ami Servaiit'ii Act, ( '. .'^. I'. (.'. e. 7.">,
xtiuiu'iiileil liy ■_".) \'ict. e. 'XI, 1)., ami eoiivicteil
tlu' I'laiiitill', notw itlislamiing more than a iiioiitli
li;iil elapseil siiiee tiie teriniuation of tiie eiii^aj,'i'-
iiii'iit, ami aitiioiij,'ii he was tolil that lie iiail
nil jiinsiiietioii, anil was siiuwu a iirofessioiial
11111, "■••- ■ ,. fill' r. •" iii'i'""-«
,i,uvicte.n'^'«"'^^'\^ ^'[.-,„-,,Mor r I
{ onU'reil to \i. > • vietimi .V'«l
then "\'*'\"' !, ,,„t issue ti. ivtunJ
.,vtiovan shouhl t • ^^^^,, „^^
veiustatethe nu K ^^^^^^_ I
t»-^^'^"aS-.h..fr.s.1
ithiu the s^^e"
3 ; ami se
11 tint the terms useiu*
:iuhl0, tU.ll 111 J
™i'';i "i=5=v» 'iff
master, ]
I the same
ailing,
wov
v. H
•U for him i
ami iiii^' ^'"-"^a
\ts exel\'i:'i'-
;v2.-t-
Lged coiivi
lust a
(lii'iiii;1
iiimeiit a
;tiou in this ease
T V forfalau""!
1' . , .. ...l.n
irisii'
Lrvest) Nvas w
Ue un-lev the -^3;l«
U. t
,f ('. s.
I the V''"'
wul
act,
ilefewlant-
Imt 111"
.tiling ■>
iceeiiing* t" ::i;;2'
Servant, or any
a,^a it therefo.
,tveuce imiii'
shewe
Mi'DoM
hl\: -S'"'
ii|>iiii'
III to tiiat etl'ect ami refcrreil to the statute
-llulil, tiiat tile jury were warraiiteil in timlinj,'
tlwt liJ iliil not l)iin:l tiilo hulicve that he was
aotini,' ii' tlie execution of liis il '■y in a matter
litliiu liis jurisdiction ; ami .u: i. i was tiieri fore
not eiilitleil to notice of action, ('niitiii'ina v.
I Ihm; .'IT Q. B. 1H'>
.Sc'c 117/. /<H V. Stci ,ix, Tay. 4;i!), p. 'I'l^-l.
MEASURi: OF DA^IACK.^.
.SVc D.VM.MIKS.
MKUHANIC:S' LIEN ACT.
.SV( LlF.N.
the velatil
'liail
il nil jiiil
W
MEDICAL PRACTITIONEK.S.
I. AuTHOKiTV TO rn.vcrtci':, -241.
II. Fees at Iniji'f-st's, '224"2.
I 111. Sale ok Goodwill ok Hchiness, 2242.
I IV, LlAllILITV FOR XeiJLKJEXI'K .\NU UxSKIL-
i'ULNESS, 2242.
V, Miscellaneous Case.s. 2244.
I. Authority to Practice.
I medical practitioner duly licensed in either
^tion of the province may practice in tlie other
; a fresh license : — Held, therefore, that
eplaiutiff, who had a diploma from Lower Can-
, was entitled to practise in the Upper Pro-
141
111 lifty-tw o persons killed liy a railway
no post
inorteiii exaiiiiii:itiiiiis were maile ; Meld, that
under \\\ k It \'ii't. e. ."id, s. 7, lie eould he al-
lowed only 'J.'is. for eaeli diy's attiiiilanee (not
for each holly,) to^'etiier witii his iiiileagi, in trav-
ellhig. Ill 'i-i' A.A-'iii mill Vli>trhi-in, LSI,). H. 4118.
Where a coroner, under V, ,s, I . < '. e, 125,
Munumineil a secuml niedieal practili' iier as a
witness at an ini|Uesl, and to perfirni ;i post
nioiteni examination, Imt it was ih.t sliewn that
such practitioner iiail Ih'i'ii ii'i . .1 in w i' ing and
his iittciidaiiee i'ei|uired li" majority of tin,
jurymen, as provided for liy see. !l, iv li' imlainus
to tile coroner, to make his order on lie county
tre.'isurer for tiie fees of siieli witti' ;s, r. .ider ;ii'c.
10, was refused, .'^cmlile, tii'it nil ipplication
for sluh mandaiiius the county tmasurer, as
Weil as till' coioner, must lie ealled upi ii. In ri
Jliirlxilfic mill \\'il.«,ii, ;t(» (,». p.. ;{I4.
in. Salf; of CIoodwii.l of lirsiM ss.
The plaintill's, S. and W., S. lieiiig .-i licensed
medical practitioner and \V. an ai.otliecary,
purchased the goodwill of defendant's praetieu
as a medical man, at f., defendant agreeing not to
practise witiiin eigiit mill's of tiiat place. In an
action on this agreement : -~ Held, tii.it there
was nothing illegal in tiie piaintitl's iMitering
into iiartnersiiip : tiiat no intention could be in-
ferred that W. should practice physic contrary
to the statute ; and that the fact of his not
being licensed could tiierofore form no defence.
Sirmm it III. V. Si-ott, 2,'{ «,). B. 4.S4.
The goodwill of a professional busines><, as a
surgeon's, may be sold by the personal represen-
tative, and the contract enforced, where the
price has l)een agreed upon, or any otiier means
of fixing its value provided. It is therefore an
asset of the estate, to bo accounted for in the
ordinary course of administration. Semlile, how-
ever, that tlic personal represeiit.ative cimld not
be compelled to find a sale for it. Chrii/ic v.
Clarb; l(j C. P. 544. See S. V. 27 Q. B. 21.
IV. Liability' vor Neoligence and Unskil-
ful n ess.
Case, by the husband alone, for negligent and
unskilful treatment of his wife in child-birth.
MERCANTILE AGENCY.
' i ^ .'-•
i;:lf!
1 ' '! ?:■'
:,
; ' . ^
' - - i!
-m
1 !■!;;!
II.
•]
The first umiiit was bad for merely stating negli-
gence, without averring any damage accnuug
therefrom. The seconil count alleged that by
reason of the defendant's improper treatment of
the jilaintiff 'a wife her life was endangereil, and
she was much injured — i)eing a ground of action
for wliich the liushand could not sue ah)ne.
The third count condnned diflfercit causes of
action, some for wliicli the husl> • d ccndd sue
alone, an<l others for which tlie wife sliould he
joined : — Held, that the proper course was to
arrest the judgment and not to award a venire
<le novo. Siiiitli v. Ciin/ir, II i). 15. 77.
The plaintiir sued defendant for neglecting, aa
a medical man, to attend upon his wife dtii-iug
chilil-l)irtli, alleging the contract in one count to
l)e to attend at .'} p. m. on the I'Jth April, and in
.inother count to attend when notilied : — Held,
that upon the evidence, stated in the case, aeon-
tract and hreaeh of it were shewn, wliich, with
proper amendments, as pointed out in the case,
woulil support the declaration ; but. Held, also,
that the jjlaintill' in this action could not recover
for the personal injury and suffering of the wife.
Jluiikr V. Uni/rii, :n Q. B. 13-2.
In an action by husband and wife for negli-
gence of defen<lants, surgeons, in treatment of
tlie wife, the evidence was of a very weak and
unsatisfactory cliaracter, amounting in fact to
pure conjecture whether there had been any
negligence or not, while the evidence offered on
behalf of defendants was of the most favourable
character to them : —Held, that on plaintiffs'
counsel declining to take a nonsuit, the judge
was right in directing tlie jury to find for defen-
dants, as also in refusing him the right to address
the jury on the whole ease. iStorci/ v. Vcueli. el
■«.'.'., Aiii/crxoii ft H.r. V. Walker, Thach'ray ct lu:.
V. Askln, 22 C. V. 1«4.
In an action for libel against a surgeon respect-
ing unskilful treatment by him of a fractured
thigh, the question was raised, whether the fail-
ure to cure was not owing to the rough treat-
ment of the patient by his master ; and defendant
desired to prove that the patient had been heard
to complain of such usage. Semhlo, that such
evidence was admissible. Smith v. Mcliiton/i,
14 Q. B. 592.
Action against defen<lant, a medicdl man, for
negligence in the setting of plaintiff's thigh bone,
which had been fractured. The pi-ofessional
evidence generally wont to shew improper treat-
ment : that the proi>er treatment in such a case
would greatly depend upon the condition of the
patient, and particularly upon the condition of
the knee, which, it came out on cross-examina-
tion of plaintiff's witnesses, had also been in-
jured more or less. The jury having found for
the plaintiff, the Court refused a new trial on
affidavits of the discovery of further corrobora-
tive evidence shewing plaintiff's knee had been
seriously injured. Fawcett v. Mothersdl, 14 C.
P. 104.
Where the evidence is as consistent with tlie
absence as with the existence of negligence, the
case should not be left to the jury. In an action
against a surgeon for malpractice in amputating
an arm above, instead of below the elbow, sev-
eral medical men of repute approved of defen-
dant's coui-ae. The jury having', nevertheless,
founil for the iilaintitt', a new trial was granted
without costs. Jackson v. Jfjjde, 28 Q. B. 294.
V. Miscellaneous Cases.
It is not admissible to ask medical v
on cross-examination what books they
the best upon the subject in <|uestion, ;
to read sucli books to the jury ; but t
bo .asked ^^hetller puch books have in
their opinion. Bnurn v. S/i<jipanl, l.'i (^
The relationship of a medical man
patient is one of trust and confidence,
settlement made through liini, in con^eii
advice given imi/'i Jiilr, will be set iisiiU
v. Uraitd Trunk J'ni/inti/ Co., Ki ('. J'. ,"j
MEMORIALS.
I. I'hook OK Di;ei).s iiv Mkmoiuals -,
DENt'E.
II. IlEdTSTHV (IK IXSTRfMENTS llV -.S
jsTiiv Law.s.
MENTAL IXCArACITV.
See FUAII) AXD MlSKErUESENTATION
TIC — Will.
^lere physical weakness, however grer
out proof of mental incapacity, is not s
to render invalid an acknowledgment
Emeu v. Eiiu'M, 11 Chy. 325.
Under the facts of this case, it was 1
there was notsulticicnt evidence of men
pacity to render invalid an aeknowled^
a debt signed by the testator. Jli.
:MErxCANTILE AGEXCY.
The dufcnd.ints, who carried on tliu
of a trade protection society, in consiil
a yearly suljscription, undertook to pn
furnish the plaintiff, a merchant in Ti
the Ijcst of their al)ility, with informat|
mercantile standing and creilit of tliu
customers among the merchants, tral
inanufaeturers throughout the United j
Canada (in the communities wherciil
spectively resided), for the purpose of [
plaintiff in determining the propriety
credit. On the 10th of June, 187.">, til
sent his clerk to the defendants to a.sf
mercantile standing and credit of
siding and doing business in Toroutil
.applied to him to purchase goods on cl
defendants' clerk read out of a book tf
tiff's clerk — ^that W. had stock aliof
and .iJ5,000 or §(),000 in his business, ;
to be worth §7,000 ; that his charactl
its were good ; tliiit he was doing af
■and that his credit was good locally,
tiff', relying on this report, wliich li:ii
(to the knowledge of plaintiff') to tl
tion which the (lefeiKiants had collif
29th April previcmsly, without makj
ther enquiries, sold to W., about i
afterwards, ^500 worth of goods (Hir
w.as really insolvent .at the time tli;|
was made, and on the 8th July fi|
2244
2245
MERGER.
2246
.dieal m-.ui to Ins
.onl\aou>'c. una wi>
sooiuled without paying the i)laintiff. The jury j hy deed pretended to convey the hind to one H.,
fimud that the (lofendiints did not furnisli tlie ! at the phiintiff's re(iuest, free from iiK<iuilirance8,
iiit'orniation to the best of their ability, and that | yet defenchuit had aUowed part of it to l)e sold
the plaintilt' did nt)t act imprudently in not | for taxes. Defendant pleaded that the ineuni-
iiii
a medical
aking further tiKjuiries : — Held, reversing the j brauees were created by a former owner, of
inclL;n>ent of the (.hieou's Bencli, X) Q. H. 551. | which defendant had no notice, and which he
Hai'irty, ('. •!. * '. 1'-, diss., that the defendants , was not legally bound to pay, and that after-
WL'iv not liable for the loss whicli the plaintitl' i wards he, at plaintill's recpiest, coiivcye<l the
liail sustained, for that the action was brought land to Yh by a deeil with ipialitied covenants.
1' " 'a confideucc, una .u,.>
trust aiKi ^ ;,, cou-coucuce ot
tbrougblm';;, aside. ,!
i.:,;/,nM/C'o., 1"^-
IlaUiroy
iiniin or I)}' reason of the representation, which
\v;w not in writing ami signed liy them under
('. ,S. U. C c. 44, s. 10, and was therefore not
ivocivable in evidence ; and the fact tliat tlie
iviiresentatiou wr.s made in pursuance of a eon
Evi-
.vws.
W
_s.'' wy--
■nc-
\N1)
which the plaintitr accepted, wliereby defen<lant
was released from said agreement : -Held, no
defence, for tliere was no mei'ger, because the
deed was not to the plaintitl', no release was
shewn, and no accord and satisfaction, (^huere,
tract dill not prevent the application of the stat- ] as to the ert'ect of tlie deed if it had been given
lite. Held, also, that under tlie circumstances , to the plaintitl'. McLiiiikiii v. C/ic(jiilii, ;(7 Q.
the plaintitl' was only entitled to nominal dam- B. 301.
■i„..g iiir the breach of the contract to procure , ,„_„ , . , i. i • ^ <■
•'-^" -- ■ ^ ■ ' In 1S;>8. a parol contract was entcre<l into for
the sale of one acre of land, the consideration
for which was paid, and the purchaser was let
into possession of tiie property, which he occu-
pied, improved, and built upon. Afterwards,
and in the same year, tlie vendor executed by
way of security a life lease lo another person of
fifty acres, including the acre sold. In lS(iO, a
bond was executed l)y the vendor to the wife of
the purchaser for the conveyance of the acre to
her. The purchaser of the acre having tiled a
•uul furnish the information.
'/(,/., 1 App. It. 153.
J/r-Ac
J Jim
MERGER.
Ok Si.Mi'LK CoNTKAtr Debts by Spellvi.
TIES. •2-245.
1.
_\Viuu.
7J(//.< ini<l XoleK—Si:e Bills oe
CUANtiE AXl) ProMLSSOHV >'()TES
E.\-
,ical>veakuess,hr^«^ergvcat,^vv|t
,e actsottWs.ease.^^^^^^^^^^^^^
:::,tsumcieu evMenu^;,,,^
ed by the testator.
idaiits, who cvrried «-;^. j^,,,,^,,^ „e|
II. Ok Estates, 224(j.
'lil, MLsrELLANEUL'S C'ases, '2247.
IV. Ov MoKTGAGEs — See Mortgage.
, OFiSniPLE CoNTRAt'T DeBTS IIY SPEiTALTIES.
Ml
, ^.votectiou «^^ £^,„k to i;v-'"-;»fl
iliuiitiff'j
All]
;uil
'."Plaintiff, a mcv
Le«tandiugau'1;^^^,,,,ts. tva.levs.
fa aiuoiig till-
it\;'iu{ormatim...itM
,editof tUeljUu"
-vstbrougbouU^^^mtkyr^
nlerk to the ^^efeiu^ ,. , „,
Where there is a simp-e contract debl due by
A. and ii., partners, ami the plaintitl' takes a
I uoitgiige from A., giving time, the simple con-
|traotilel)t is thereby extinguished as regards B.
\lmiiU d III. V. Ballard d al., 7 Q. B. 3G().
Helil, that under the facts proved in this case,
Itiie mortgage by plaintitl' to defendants of his
il to secure advances on his Hour, to be soM
Ik (leteudauts as counnission merchants, was not
Ito be treated as superseding the pan)l agreement
bill for specific performance of the parol con-
tract, the court refused relief on that ground,
the parol contract having become merged in the
written contract or bond. JlcCnuiim v. Craw-
ford, 9 Chy. 337.
See, also, Collateral SEiTRrrv.
11.
t)E Estates.
A conveyance in fee from a lessor to his lessee
during the term, though made to defraud credi-
tors and voidable as to them, is nevertheless na
between the lessor and lessee a merger of the
lef.se, or more properly a surrender of the term,
and entitles the purchaser at sheriff's sale of the
less'ir's estate in the land to immediate posses-
sion. Doe d. Mel'herwH v. JliitiUr, 4 (). B. 449.
Where a tenant for life and the reversioner in
a such advances, or as shewing a ditierent ! fee had conveyed property in fee simple by one
ireeuient from that e\idenced by the letters, deed of bargain and sale to one person, it was
ii4t\. (Jouderhain et uL, 6 C .V. '21. ...
K^^v^ -^^
i,f one
1 The acceptance of a conveyance by way of
iwrt^age for a simple contract debt of a larger
mount than th.at secured and covenanted to be
Lid hy the mortgage, is a satisfaction of the
pie' contract debt for the larger amount,
Miv.Alemmkr, 11 V. l\ 541.
hehl that the l>fc estate ilid not merge in the
reversion, and that the .Statute of Limitations
did not run against the remainder man till the
death of the tenant for life. Shiildeii v. Siiiilh,
7 C. P. 74.
in I'ovoiit".
who m
,\it, li
1 .Idiuu business i- ^,^, i„
^^V^V^"a^sti abr-'"«*
lerU-that^-.^^ his business,
Ito hiiu
Held, that the husband of a decrised wife
cannot be tenant by the curtesy, except of lands
,,,,,,,,, , • J.1 • 1 ■ ! of which his wife was seised of such an estate
Hd,l, that the mortgage m this ease bemg , ,^^ ^j^^^ j,^^ j^^^^^ ,,y ,^j,,^ ^^.,,^,j,^ i„,,^.,it, „« j^ei,.
and that as between the reversioner and
,e good ;ttiat lie
thai u^ " VlocallV- i"'-'n
this credit was gooeU«^^\,^,^ „(er«J
.uiries, sold to v< , on^r.^\
S fti^OO wortti 01 g' . „ Li .ttwtefl
.ade, aui^ °"
mrcssed to have been given as further security,
1 providing that it should stand as security
itauy renewal of the bills sued on, was collateral
kly, not a merger. Gore Bank v. JlelVhirter,
|C. P. 293.
Ml, also, that the remedy on the specialty
1 simple contract not being co-extensix-e or
weu the same parties, the doctrine of merger
I not apply. 11).
pintiff declared ou defendant's agreement to
1 him certain lands, and convey the same to
lin fee simple free from all ineumbranees — ■
jiiig in one count that he had not so con-
si, and iu another that a'* hough defendant
to her
tenant by curtesy, a conveyance from the ten-
ant by the curtesy operates as a surremler of the
life estate, and that the freehold in law vests in
the assignee before entry ; and the lesser estate
would, by operation of law as between them,
merge in the greater, and the assignee's right of
enjoyment would be immediate, as if the tenant
for life had died. Kiehards, J., diss. Wi'/le v,
Merrick et al., 8 C. P. .307.
Defendant on the 1 3th October, 1852, granted
the land in (luestion to one S., to hold " to the
said iS. .and the heirs of his body for twenty-ono
years, or the term of his natunvl life, from the
ifl
1'^
m
MINES AND MINERAL LANDS.
f.
m
Ist of April, 1S53, fully to be coniiileteil and
eiKled :" — Hold, that by the lease S. took a life
estate, in which tlie term merged, and he there-
fore had no interest which the sherift' could sell
under the ti. fa. against goods. Dalyev. Hubert-
son, 1!) (,). B. 411.
S. having mortgaged certain laud in fee, after-
wards leased it for twenty-one years, making no
mention of such mortgage in tlie lease. Iletheu
conveyed to the plaintiff in trust, subject to the
mortgage. 1*., the assignee of the mortgage,
proceeded to foreclose, and under a decree in
Chancery the land was sold, expressly subject to
the lease, to .1., who received a conveyance from
S. and I', and the plaintitf, each using apt
words " bargain, sell, and icleaise, " t(» convey
a legal estate in fee. On thv same day, J.
mortgaged to the plaintiff to secure a Ijalance
of tiie purchase money. This mortgage had
been discharged before action, by certificate duly
registered, ami the plaintiff sued defendant, who
was a mortgagee of the term liy assignment, for
rent accrued during the existence of tlie nu)rt-
gage : — field, that .S. had a legal reversion by
estoppel as against the tenant, which passed to
the plaintiff l)y the first conveyance from S.
If eld, .also, that tlie subctetjueiit sale and convej'-
ance being expressly sul)ject to the lease, the
reversion was not merged in the legal estate then
derived l>y the plaintiff through 1'. and .1., and
that the plaintiff being still bound by the lease,
defendant was so a;< well, i'aiiuron v. Totlil, '2'2
Q. n. -MO.
III. Misci-.i.i.AN'Kors Cases.
The plaintiffs sued as "The Trustees of the;
Toronto IJcrkcley Street Congregation of the I
Wesleyan Methodist Church in Canada in con- !
nection with tlie Knglish Conference," alleging '
that ill consideration that they would take down
or remove the clmrch held by them for the pur- ,
poses connected with the trusts set out in the ■
ileed conveying the land to them on which it '
stood, and would rebuild it so as better to answer :
the purposes of said deed, <letendant promised
to pay them .'?1(10 to assist them in so doing : — '
Held, that the plaintiti's lieiiig entitled to sue in j
their ccu'porate or (piasi coiiiorate capacity their
individuality was merged therein, and the ol)jec
tion that the di'feiidant, being a trustee, was also j
one of the plaintiff's could not arise. Tin- Trii-^-
tci'n of llif Tonnilii I'xrb l<ij Strai i'/nnr/i, ii.r.,
V. ,S>(v/(.s .S7 Q. J. !). j
A testator devi.scd all his estate real and per-
sonal to his wil'e for life, and after her deatli the
real estate was to bo eipially divided between
one of his sons and one of his daughters ; the j
daughter to have all his personal estate also, in
the e»ent of the death of either without heirs,
Lis or her share was to be divided between the
other children of the testator. Several pecuniary ;
becjuests Mere made, \\hicli were to be paid by
the son and daughter, by instalments, coninienc- i
ing one year after they should " have come into [
possession hereby given. " The daughter married !
and died during the life of the widow, leaving
the husband tenant by the curtesy, but no child •
her surviving. The widow subse(iuently died,
and thereupon the tenant by the curtesy recovered ^
possession of his deceased wife's share in ejeet-
inent. More than a year after the death of the
widow, a, daughter of the testator, one of the ;
legatees named in his will, filed a bill
payment of the arrears of her legacy :
in the events that had hapjiened, that tli
no merger of any portion of her legacy, Ir
of her interest in the deceased dauglitcr
JMiaun v. Jurdinr, 'ii Cliy. 420.
mj:sxe puofits.
Sec Ejkct.ment.
MIDLAND RAILWAY OF CAXA
See Eai: way.s and Railway Comi'a?
MILEAtiE.
I. Of (Jaoi.er— .SVc Gaol axd (Iaolei
IL Ov ShEHU'F— .SVc SlIERIlF.
MILITIA.
Sec Arjiy, Navy, and Militlv,
MILLS AND MILL OWNERS.
I. RiuuTs and Liabilities of Jill. I. (
— .SVc Watek and Water Con
IL Mill Fixtures — SV* Fixmu-s.
MINES AND MINERAL LAM)|
See Oil I.,and.s.
A mining company incorporated um
C. c. ()3, s. oT. has not, as a necessary i
the right to draw, accept, or eiulnrscl
exchange for the purposes of tlicir if
and the power of " selling or otherwise \
of their ores as the conipaiiy may sui
their articles of association, will not
right by implication. (^HUh rt v. Mr.Aii^
28 (). B. 384.
The plaintiff, having discovered mil
certain lands, agreed with I). & T.
should furnish the funds to work tliein
after securing the title, convey an
third to him. He afterwards agncil]
his interest in this agreement to ili
consideration of .SlOO, and one-half iif|
profit might be derived from the sliart]
be given to him by I). & T. ; ami the
agreed to account for and pay over tJ
half of whatever profits or retumsl
derived from the said share assigiicdr
ant, as agreed to l)e given to the jl
I>. & T. ; and further, it was agrci'J
plaintiti' should not have to pay or .tl
moneys or labour in the working of
The defendant having sold one-half i
est to one U. for $1,125 :— Held, tliati
was not profits or returns derived fil
ant's share, for which ho was boiimf
•2249
MINES AND MINERAL LANDS
Loiicl''< V.
.■iO
^"fvs" U^ev W-y ;---H.Vl.
ihw.eue.l, Aat there ^v..
^TiSa^gi>tev.sUave.
' o^. CUv. 4-20.
^>MI^AV OF CAXAm.
;MlLEA«av
filed a bill to enforce his paituership righta on
the 30th of July : — Held, that, as there was no
stimilatioii respecting the time ho was to work,
(I "
to the plaintiff under his agreement.
WallbrUli/,; 31 Q. B. 32.
The plaintiffs and defendant entered into a ^ , ■,-,■, j. .
ioint adventure to form a company to work a •'^"'^ •'«. '^^"•^« »"* V'-''l"°sted to resume work, and
Line in land forming part of a township ro.-id i »'• »"tice was given hini of any conii.hunt or
aiowance, the defen.Tant to f,.rm the company, I i"t^^"t'on to exclude hnu from the protfts of the
;„a the i)laintilFs to vest in the eomp.any the j '^^^ venture, the .lelay did not bar the suit. J I,.
title to the mineral rights in the land. The - G, in his own name bought the privile;]'.^ of
(ibintitls accordingly procured a by-law to be ] ,iij^,gii,g for gold on the Elzevir lot, and subse-
,,,issed by the municip.ality for the sale of the j iju^ntly formed a c(mipanv by whom that lot was?
iiiiiieral rights, under sec. 442 of the .Municipal ; jmreha'sed ■. -Held, that the'plaintill', one of the
Ant of 1873, which authorizes such sale, but with ; \viirking iiartncrs, was entitled to a sliarc of all
theproviso that the public travel should not be i tim pi-.itits ami advantages made by V in this
interfered with. A conveyance containing tlic 1 transaction. Jl>.
ilK.ve proviso^ w-as, with_ defendant's consent.! 'piiero was no writing signe.l bv(", acknow-
Id, that A
the lot, the
ihove proviso « as, wiu.oe.en.uwiLs cousenu ,j.,,^,.^, ^^..^^ ,,,, „.,.iti, , ^j ,„,,i ,,^. ,
,,a,e to (me L. lU,., who executed a f'-nnal j^,^, ; , ^j^^. ^ ^,„;j t,„..t :-llel
ieolaratum of trust ot .,ne-tliir.l interest to the ,„J nfhaviugcnteredand woike.l oiH
1 1'''™^'"?' ;f.,""* f 1^'','' 1 "."' ' . ;• ,'' '^^^^ ' i^tatute of Fnuids .lid not ap),ly. //,.
•lijt he held the wliole land ill trust tin- plaiiitms, I '' '
IV V
— sv.
SUKIUVI".
\UMY,
MILITIA.
^'.,vv,asdMiu"v
lllie plaintitl's having sued uefendant for not
;inuiiig tlie companj' or carrying on mining
.•.iijratiims, and having obtained a verdict for
lijO(j;__Held, that the verdict must be reduced '
1 ;.i nominal damages. Held, also, that the c(m- ;
T^ivrvuK
,s-S. <' Yix'WUKs.
See On. 1>a^"^'
■ ^^^^*"^''',::::t o oudo-''ffl
to draw, accpt, ,,,,^,„
£''vt^^^rn|;:-^.,thelnvi.oa^-
,ves as the cm I . ^j ,,„t .n.'
$.isr"""«--«-'
^' wards agvcol t..
that he lield tlie wliole iaiiil in trust tor pi;
I iml was willing to convey as they directed, and i An arrangement with the plaintiif. sui?h as
the plaintitl's informed defendant that they were ; was customary in carrying out objects like those
'oaily to convey to him. Defendant obtained an delincd in .a comiiany's incorporation act, and as
Ut lacorporating a company to work tlie mine ^ was conducive to tlie attiiinnicnt of those objects,
iml issue .stock, which company proved a failure, having been duly carried out :- Held, that the
'put through no default of defendant, who was ' arrangement could not afterwards be declared to
tk heaviest loser of all th" parties interesteil. ' have been beyond tlie powers of the company or
itt' directors, so as to entitle the companj' to
keep for their own use witliout coinpensation to
tlic phiintitl' the whole benctit which the arrange-
ment had atl'orded the company. McDoiidht v.
Till' Ujijiir t'niiiiiln Miniiii/ Co., ],") Chy. 179 ;
vrt-auce by the 'municipality of the mineral ; atiirmed on re-hearing, /h.ii'A.
•iilits, uiuier sec. 442, was sutficient, and that ] yi -^v.as aware of a valuable mining location on
iitc. 441, for stopping up of a road aUowance, did j^^j-e y„pi.,.i,),., ami was regarded by other ex-
ut apply. Held, also, that altlnmgh the 0(m- ' j,i,„.y,.g j,, that region entitled to it. " He iimde
iVtvaiiceof the miner.al rights was to ]\. B. J., ^,1,,^,, this location to an incorporated mining
.dciemhuit could not urge that he could not be \ i;„n,j,a,iy under an agreement that he sliould bu
Luiielled to convey, owing to the alisence of : coinpciisated for the communication ; but the
lisy writing ; ami that the plamtitls, having coii; : „„„i^, „f coinpensation was not determined. Tlie
communication having ])idved valnalilc to the
coiniiaiiy, it was - Held, that ]M. was entitled to
conpiensation in the nuunicr usual in such cases,
lefemlants, who had some interest in gold J !>■
ids, h.iviiig discovered the owner of an out- ^ The usual mode was proved to be, by receiving
mtliug title, employed the plaintiff to buy up a share or partnership interest in the mine, on
same ; agreeing to give the plaintiH' one- the patent being procured ;-Hehl that this
rth of the land for his trouble on his paying mode was not ultra vires of the company or the
le-fdurth of the consideration, and to reconvey directors. J h.
The agreeinent was not under the corporate
seal. The company receiveil !*i">,r)0() for their
claim to the property by way of eomiu'oinise,
from a director wlio liad availed himself of the
Itriil lit the title, were in a position to aver and
ve their readiness to perforin the agreement.
Umdid. V. Bid; 24 C. P. 219.
owner of such title another one-fourth
I'he title having been bought up, the
ifemlaiits did veeonvey the one-fourth to the
fraer, but refused to carry out the agreement
iith the plaiiititf :— Held, that the .agreement
t-siioh as this court would specilically perform,
\ ilecreeil tlie same accordinglj-, with costs.
§fnm \. PatUrsiiii, 14 Chy. G24.
iriusb
■uviug the
ni He after
ut to
[atiou
iglit
of fflOO, ana '»-
" , ..: 1 frointl
bo derive*
\ trom '
to liiiii by
I). & T.
aui
acco
;;;,t^or and pay
lcieuil;u|
M-e agnl
I the lUifif
,ver to to|
vhatever pr
tits or re
from
tlie SI
lid sh
^reec
1 to be giv
;vre
,eu
assv
turns \m
-iicil to <\
the vlwn"
: aiw;
ov
further
L no
labour
it was agv
have
to pay
the working
pa;
rki
or ai'
ItU
llVlWCl
, (it saw
sold one
half I'l
Iml
fendaut havuig^s;- ^^^l ll,tittb«
.„eaforSl,l^-'-^^,^,,ivedtro;ui
pne
jit pv
Iharci
ifits
for
plaintiff's coniniunication to the directors, to
olitain secretly a grant of the property to himself
personally ; — Held, that the plaintiff was entitled
to share this sum, and that the want of a seal was
no <lefeiice. //*.
A miningf lease for 99 years contained pro-
visions enabling the lessor to demand at his
option a royalty upon the proceeds of the mine,
three were to share in the profits. The place or $4000 in lieu of such royalty. The lessor
Miiieil was afterwards abandoned by mutual had not exercised such option :~Hehl that the
ut, and the two working partners, A and ^ lessee was a purchaser for value, and that a prior
teiiioved, at the instance of the third, C, to voluntary conveyance was void as against him.
ill another township (Elzevir), where they , Conliii v. Eliiiir, US Chy. .'141.
One of two tenants in common of land, leased
part of it as a stone (juarry : — Held, that the
other tenant in common was entitled to an injunc-
tion against further (iiuirrying, and to an account
against the lessee for one moiety of what had been
already ipiarried. (loixlcmnv v. Fitviiiihar, 19
Chy. ()14.
[.\ partnership was formed between three per-
s.\, B, and C, to dig for gold on the property
lone .\llan ; two of them, A and B, were to do
ewiuk, and the third, C, to pay the expenses ;
Bil work, C, paying expenses as before : —
Id, that in the absence of any express agree-
k it was to be j)re8umed they were working
[the same terms as at the place originally
/Jiini v. Struiiij, 14 Chy. 651.
k plaintiff had occasion to leave the work
le ind of March, and did uot return. Ho
whicli
he wr
boumi
.Itoal
2251
MISNOMER
■i I .'
■ ] 1
Hi
MISDEMEANOR.
See Criminal Law.
MISmREC'TIOX.
Sn- New 1'iuak.
MISJOINDER.
1. Ok C'oiNTs --.SVe Plkauixo at Law.
II. Ol' rAUTIKS.
1. At Law—See Amendment at Law.
' 2. /;( E'lii'ifi/.
(a) Fonelvsiirc Siutt — See MoRTtJACiE.
(b) Othi-r SnU.i—Sce Pleaoini} in
EyuiTV.
MISNOMER.
I. Bailadi.e PitorEKDiNfjs, 2251.
II. In Pleadings, 2252.
III. In Other Puoceedinos, 2252.
IV. What PjiEVKNTs a Party froim takinij
AlJVANTA(iE, 2255.
V. Amendjient — See Amendment at Law.
"\'I. Ok CoRroRATioN.s.
1. Oenerttlljl—Si'e CORPORATION.S.
2. Jfiniir'qxd — See Municipal Corpora-
TKJNS.
T. Bail.vble Proceedings.
^Vlierc there are two plaintiffs with the same
suniaiue, the non-reiietitiou of the surname after
the Christian name of each in a bail piece is only
an irregularity, and will not warrant the plain-
tiffs in taking an assignment of the bail bond.
Mehjhaii el al. v. Umirn, Dra. 107.
An arrest was set aside, where the defendant,
whose name was *' Patrick, "was called " Peter"
in the affidavit and writ. BoUford v. Sfewurt,
E. T. 11 Geo. IV.
One of several defendants, Stephen Nathaniel
Campbell, was arrested on a writ of capias, in
which he was called Samuel N. Campbell. As
to the misnomer, the plaintiff shewed that the
defendant liad represented his first name to be
Samuel, but did not shew tliat he had said this
was his only name, or that any enquiries had
been made to learn wliat liis second name was :
— Held, that the arrest was bad. Pet/(/ v.
Campbell et al., 1 P. R. .328.-0. L. Chanib.—
Robinson.
The i)laintiff, Campbell, who lis-ed at Montreal,
was arrested at Kingston upon a warrant reciting
that R. B. Bouiaii had been charged, &c., for
that he the said — Campbell, did, &c. , and com-
manding the arrest oi the said R. B. Boman.
The information was against R. B. Boman, the
name of Campbell having been struck out. It
was found that the plaintiff was known as Camp-
bell, but carried on business as R. P). Honijii
Co. : — Held, that the information itiid warr
could afford no justification, for they were ii.g;ii
Boman, not the plantiff, and tliough tlie iilaii
had entered his name as " R. B. Boman" in
hotel where he was staying, there was nothiir
shew that he had ever represented that tn
his name, and he was known to the hotel lu t
and bar keeper as Campbell. Caiiijilnll v
Dundlet al., 27 Q. B. 34.3.
11. In Pleadixus.
A defendant cannot sign judtrment of i
pros, for not declaring, where the iiiaintitfs Ii
in fact declared but a mistake ha.s been nia(l(
the name of one of tliem, tlie proper course lie
to move to amend the declaration as to tliu us
under 7 Will. IV. c. 3, or to set it a^iili;
irregularity. J/arl et al. v. liai/le, (Kt. S. Idj.
It is no iirouud of nonsuit that tlio plain
has declared by a name different from hei' i
name ; it can only be taken advantage of by
application to amend tlie declaration. Mur
y.£itnt,tal.,'2Q.B.'2S4. '
The plaintiff declared by the name of Hut,
son. Defendant in his plea spelt tlie plaint!
name Hutchinson. The plaintiff trcatud
plea as a nullity, and signed judgment, and ti
out execution. Burns, .!., stayed pniLccilin'.'s
the next term no that defendant might aiiplv
set the judgment aside, which he tlnmulit i
defendant entitled to. /h(tcliiiuii v. jlarl
C. L. Chanib. 22.3.
Writ of summons in Connnon Pleas, T. H.
Purdy c. Rowlands. Declaration l)y mistake
Queen's Bench .1. T. H. Purdy c. Kdwlan
Motion to set aside declaration for irregular
is properly made on atHdavits entitled as in |
latter cause. I'lirdji v. liou-lainls, 4 I'. 1!.
— C. L. Chanib. — Draper.
Where an incori)oriited company Hlos a
using a name other than that mentioneil
act of incorporation, the bill is liable to a ckii
rer for want of equity. The Coi-uUh
MliHwj Co. V. Bull, 21 Chy. 5!)2.
III. Fn Other Proceedinos.
An obligor who is called by a wrong nam
a bond, but executes it by his right name,
be sued by the name in tlie bond. Kildnui
Bmdii, M. T. 3 Vict.
Held, that a mistake in the initial lettn
the name of one of the parties is not fatal t(
award. Chai-lex v. Hkkson, T. T. 3 & 4 Vio
P. C. — Macaulay.
Where a verdict was taken for the plain
subject to a reference, and the arliitratur awar
for defendant, but everywhere styled the \\'
tiff "John," instead of "Patrick,"— the i
set tlie .award aside and granted a new
McMunmon v. McEldervij, H. T. (J Vict.
ti
Jacques and Jakes are not necessarily
sonans, so thf.t the substitution of the (uie
the other is sufficient. Jaiinen v. Skliolli', T
3 & 4 Vict. -P. C— Macaulay.
Owen and Orrin are not idem sonans. Tni)
MathewH, T. T. 3& 4 Vict.,— P. C.-Macaula
<)Ar
2253
MISNOMER.
2254
Imsiuess as R. IV B.mi:m &
D information uiul wunwnt
cation, f'.rtliey were .giu„>t
tiff and thdugli the vliuiitill
B as " R- T5- 1^'""="' ' "' ^''^'
staying, there wasuothiii.: u>
liver reiiresontetl that tci Ir
■IS known to the hotel luiv>-'
L'ampl'clh C(uiu>l>dl y. M'
. B. 343.
,unot «ign judgment of ikt
iuL', where the vhuntirts have
t a mistake has been lua.le m
them, the proper eouv^fhi'iUL:
the dechvration as to thu uaiuc
r p S or to set it a^ulc tn,
/fr«/.'v.-'^".'/'''' '■'*'• ^•^"^■
I of nonsuit that the ylaintiti
name different from lier real
V he taken advantage ot by ai,
icnd the dechu-ation. M"q.l.:i
^. B. -284.
ochired hv the name of Hutclu
^n his plea spelt the phuntU >
, The plaintiff treated th.
an.l signed judgment, ami t,.,.k
Burns, d., stayed procettet-
Uhat defendant niight apply t.
;t aside, whieh he though tlK
Died to. ihitcln.-<on v. lUui, 1
23.
nons in Common Vleas, T. H. ?<■
nds Declaration by imstakem
T T H i'urdy '•. Kowlauds.
las'ide deelaration f.;r irrogulav.ty
i:.ni .affidavits eiititled a. -ntk
P„r<l!l X. noirlnnd,, i I. h. oOb.
,.— Draper,
ncorporated company files a hill
htherth.anthat mentioned uU he
an, the hill is liable to a demuv.
p equity. n<l t'on,,./, .s.'-l
Irs- Other PROcT.F.PiN-f-s.
Iwho is called hy a wrong name ii^
*;St^itbyhisnglit — .m.^
f name in the bond. kdihM \.
fSVict. .
, ,^i„take in the initial letters ofl
ll'iV ■
Lrdict was taken for the plaintiffl
hut V f "Patrick, "-the coull
I McEl'len-u, n. 1. <> M^t.
II Ukes are not necessarily "lei
|\ it substitution of t.^^^^^^
ip c —Macaulay.
Held, per Sullivan, ■!., that the styling of a
cognovit thus — "Thomas I'aterson, plaintiff^ v.
f/i(/('»iH S(juiresand Wlllidii S(|uires, defendants,
leaving out the letter o, and omitting prrt of the
letter m, was not an irregularity, (there being
no dou1)t .as to the identity of the parties,) upon
whieli a judgment and execution entereil and
issued upon the cognovit could be set .aside.
Pf,t(i\-<oH V. Siiiiiri's it III, 1 C. L. (.'hainb. 234.
"Kae" instead of " Wray" held idem sonans.
IVoMc it III. V. ]\'ruii, 3 L. .J. 0!).— C. L. Chanil).
—Richards.
A rule nisi having been obtained on an attor-
iifV to pay over to Cliarles Edward Hatherley a
sum of money, a technical objection was taken
that the conii)lainant's name was not (.'liarles
per
In
Kihvard, but Charles I'Mimind ; — Held,
llraper, J., that the objection must i)revail
te LuIImiii, oiii', (ic, 1 F. U. Ul. — 1'. C.
Where in the style of the cause the plaintiff
Wiis called "Davids Cass," but in the title of
affidavits in support of a rule nisi in the same
case "Davis H. Cass," and "Davis Hawley
Cass" : Held, a fatal variance. Bi'iuich(iiii/> v.
Or*,s 1 !'• 1^- 291.— Richards.
The patent for land issued to Michael Corrigan,
anil the name was so spelt in the deed from him
uiuler which the plaintiff claimed, but was signed
Micliael Corgaii : — Hehl, no variance. Friiicc v.
'ifclA'ini, 17 Q. B. 4()3.
The franchise ought not to be lost to any one
really entitled to vote, if it can bo sustained in
a reasonable view of the reciuiremcnts of the
statute. The rating of electors under s. 75 of
C. S. U. C. c .")4, is sufficient if in the surnames
of the electors, although the Christian names be
erroneous. Thus " 'Wilson Wilson" was held to
beasutticient rating to entitle "William Wilson"
to vote, he having sworn that he was the person
intended, and it appearing that he was otherwise
iiiialiKetl. So "fSiniond Faulkner" was held to
be a sufiicient rating to entitle "Alexander
Faulkner" to vote, he having taken tlie same
oath, and being otherwise duly (jualitied
"Thomi
Tith '
person
kmer
(■/i(iw//cr.i V. Atl'mm, 1 L. J. X. S. 244.— C. L,
ttamb.— J. Wilson.
A judgment was recovered against Charles
costs incurred by the corporation in conseiiucnce
of the error to be deductetl. /// ri' Thiiiiijinnti iiiiil
Till' Ciirporiithin of thi- Cnitiil Toinmliiiii nfJinl-
font, Olilfu, Oni), unit PiilmiTxIiiii, 21 Q li. 'A7i.
Upon a commissiou the n.anie of one witness
was stated to be William Lansing Flynn, and in
the return of the commissioners they stated
that they had reduced to writing the answers of
William Ij. Flynn : — Held, not to vitiate the
commission. Ciiiiitliicl: rt id. v. Ti/rvi-ll it uL,
12 C. P. 173.
Hehl, that a mistake in the entitling of the
cause in the commission (the defendant having
been styled William instead of Samuel) was
fatal to it, and that the taking of the evidence
under it was a void proceeding, dralnuii v.
.Stewart, l,") C. P. KID.
A commission was addressed to S. B. Henry,
and (i., of Philadelphia, jointly .and severally.
G. took no part in executing it, Imt .all was done
by one S. B. Huey, and an alhdavit of the
liiaintitl's counsel at Philadelphia, taken before
(i., expl.ained tliat Huey was the name forwarded
by him to the plaintirt"s attorney here, liut through
some clerical error it was directed to Henry ;
that he knew no such person as S. B. Henry in
Philadelphia, but that the Huey liefore whom
the depositions were taken was the person in-
tended. This objection was not taken to the
commission at the trial, though others were, and
the evidence of witnesses on both sides taken
under it was read : — Held, Hagarty, J., diss.,
; that, nevertheless, the objection was fatal, for
! the depositions l)eing taken without .authority
] were not in fact depositions, and tlie execution
of the commission was a nullity. Lmhji' v.
; Thimiimin, 2() (l B. 588.
i The naming of a r.ailway "railroad" .at the
i heading of a page of a stock book was hehl not
j to vitiate the subscription. Smith v. •Spiiirir,
12 C. P. 277.
^ In an application for a mandamus to compel a
municii)al corporation to provide .'?28().74 for a
board of school trustees, they were described in
appear to be the moret correct one, yet 34 Viet,
c 33, 0. , did not in express terms re(]uire it, .and
the township corporation had by their action
ffestley Lount, which was the correct name of \ shewn that they fully understood the body with
the defendant. The registr.ation was of a judg- i whom they were dealing. //( re The TriLttecu of
meiit against Charles Wesley Lount : — Held,
sufficient. Pnnuifool v. Liniiit, 9 Chy. 70.
.\ confession of judgment w.as executed in the
I name of Matthew Rodger ; the certificate of
registration w.os of a judgment auainst Matthew
Wgers ;— Held that the mist.ake vitiated the
registration. McDonald v. liodijer, 9 Chy. 75.
! th.' Port Poiran Hii/k School and Corjioration of
thi- Towmhlii of W'al.iinijham, 9 L. J. N. 8, 188.
— C. P.
Held, that the proper designation of a W^arden
in a (pio warranto summons is " Warden of the
Corporation of the Oountj' of ;" but that
"the Warden of the County of " is not
, ,, . ., 1 • ■ i: i 1 improper, as there is no particular name or des-
hthe copy of the mle n.s, hrst served on a cor- . V ^^^^ \^ ^ Municipal Act of 18(iG. lieijina
,«ratmn the applicant s name was by mistake ,,^^ ,.^, ja-J/„«„.s v. pliiii.on, 2 L. J. N. S. 19.
m ten James mstead of Joseph Thompson. The _(. l. Chamb.-Richar Is.
ttunm question also passed through the land or
Me James Thompson, with whom an arbitration Held, that " the Warden of the County Coun-
I W tiken place, and the corporation, supjiosing | oil of the County of Simcoe" might, it deemed
to to be the applicant, prepared affidavits in necessary, be amended by striking out the
Biwer. Afterwards the mistake was discovered, i words "of the County Council" after the word
mdacorrect copy of the rule served. The Court, 1 " Warden, " ami before the words "of the
iimaking it absolute, with costs, directed the { County of Simcoe" in the writs to be issued in
il^
'f
Md
2255
MISTAKE.
00'
pursuance of the judgment in a quo warranto
matter. lb.
A misnomer of a witness David instead of
Daniel, in an aflidavit of disliursements, was held
to be innuaterial on a motion to revise a tax-
ation, the defendants having dislnirsed the
amount. Ham el iix. v. L(Uilirj; 24 Q. B. 357.
In a notice of trial the Cliristi.in name of de-
fendant was wrong in the style of cause :— Held,
that the notice must be set aside. C'aniei/ic v.
Rutherfunl, 9 L. J. >;. S. 212.— Dalton, C. C. A.- P.
In a writ of fi. fa., and the endorsements
thereon, the jdaintitl's were styled defendants
and vice versa, tlie words being transposed
throughout, anil the Christian names of the
ilefenaant were also transposed ; — Held, that
the writ and endorsements were clearly irregular.
Davidson ct al. v. ilramje, 5 P. E. 258. — 0. L.
Chamb. — Morrison.
The court will .allow an .amendment where an
uninjportant mistake has been made in a name
which has misled no one and the right person
has been served. The court does not favour ob'
jections of this nature, and refused an enlarge-
ment, where, but for such mistake, the jiroceed-
ings were regular and ample notice had been
given, lie Frani-r — Franfr v. Frasir, 2 Chy.
Cliamb. 457. — Taylor, Secretary.
IV. What Prevf.nt.s a Party from Takin(j
AuVANT-iOE.
A^Hiere the plaintiffs are styled in proceedings
upon a cognovit as they are named in the cogno-
vit itself, the defendant, having recognized the
plaintiff's' names in his cognovit, cannot object
that the ( "hristian an<l surnames of the plaintifl's
have rot ))een used in the proceedings. Parker
et al. V. Hvberts, 3 Q. B. 114.
When a part}-, by his own conduct and ad-
missions, has justified the calling him by a
wrong name, he cannot object to the use of such
name as a misnomer: and — Held, that in this case
the defendant was precluded from raising tlie ob-
jection. Broicne et al. v. Sudth, 1 P. It. 347 —
C. L. Chamb. — Richards.
The plaintiffs declared on a bond to "The
Beverley Municipal CouAcil " (there lieing no
.such corporation in existence). The defendants
ilid not, deny the making of the bond, but plea-
ded over. On demurrer to the plea, and objec-
tions to the declaration : — Held, that by not
pleading non est factum defendants were debar-
red from taking the objection to the form of the
bond as pleaded. The Corporation of the Town-
Mp of Beverley v. Barlow et al., 10 C. P. 178.
MISREPRESENTATION.
See Fraud and Misrepresentation.
MISTAKE.
I. In Deeds and WRirrEN Documents.
1. Generally, 2256.
2. DeHcrqMon of Land Conveyed, 2258.
3. Amirdu or SnhmimonH — See Aiti
TRATION AND AWARD.
4. Aniij/ninenln for Creditors — ,<
Bankruptcv and Insolvem'v.
5. lumiini/ Patents — See Crown FjANi
G. Jiertifi/iriij and Varyinij Dcdi—f'.
Deed.
7. Annesnors or Collect or' h Hull ,S
Mandamus — Municipal Corpo
ATIONS.
8. Voter/*' Lintu — See Pari.tamkn r.
9. Beleaie.1 — See Release.
II. In Le(ial Proueedinos.
1. Oeneralh/, 2259.
2. Filinij or Enterini/ Papers in Cmi
Office — See Crown Office.
3. When (/rounds for Xew T'riul—ti
New Trial.
4. In Affidavits — See Affidavit.
5. Amendment of — See Amendment;
Law — Amendment in Eciurrv.
0. Siijiidemental Answer to Rectify— ^
Plea 1)1 NO in Eyurrv.
7. Copy of Writ — -SVc Practice at I.a\
8. yixi f'rius Record incorrectly nuu
up— See Practice at Law.
9. In Masters Report — iSV« Pkaitk
IN Equity.
III. Miscellaneous Cases, 22G2.
IV. In Boundaries — See Boundary—Lim
TATioN OF Actions and Suits — SnivE'
V. In Names — See Misnomer.
VI. Action to recover b.u'k Money pai
under Mistake— .SVc Money Count
VII. As Affectino Right to Specific Pei
FORMANCE OF CONTRACT— .SVe SpECIf]
Performance.
VIII. In Surveys— .S>e Survey.
I. In Deeds and Written Documents.
1. Oenerally.
The court will receive parol evidence to rectil
a written instrument, notwitlistanding the ij
guage used was that intended by the paitiJ
where the legal effect of such language is ilitH'icI
from what was their intention and agrt'eniei
Merrill v. Ives, 2 O. S. 25.- Chy.
K. having agreed with the plaintitFsi for tl
purchase of some luml)er, the defendants cif
seiited to guarantee his punctual payment 1
the same ; but inadvertently the first agreeniel
in which K. bound himself to pay for the luniljf
was recited in the agreement signed hy
sureties as bearing date the 22nd of Deccmb
1851, whereas it was dated on the 8th Janual
1352. Semble, that on such an issue, if it wl
shewn that there was but one agreement betwa
the i^rties relating to the matter, tlie errorl
the recital of it would not be fatal, and
plaintiffs might recover. Wadsworth et al, |
Townley et at., 10 Q. B. 579.
Cancellation of lease by taking out sevel
sheets and replacing them by others . Effect of
2256
Fiithin ixniow—Si'i- AiiBi-
iMD AwAun.
V for CrciUti»:-< — .S'«;
•TCY andInhoi.vency.
tent,-See Croxvn L.vni.s.
ami Varyhiii Ve<ds —SVc,
or Colh'ctor'.'* H»n-^f<tr
jUH — MVSlCirAL ColiVoR.
•,,,_-,SVc I'ARI-lAMENr.
-See Release.
K'EEDlSWS.
7,2259. .
-See CkOWN dVFU'E.
,,„„„;, fur N>-"' Tnnl^Sr.
CUIAL.
;(„,;„_See AFKiDAVir.
-Amendment IN Imjiun. ,
i.iNti IN EyuiTY.
.„Vi^-SeePKArTREATlANV.
.SVe Vractice AT Law.
V,.s(er',si.Vj'C,W.-SeePKA.TKT.
Equity.
SEovs CASES, 2262.
.,„,FS — »'<' BOUNDARY-LIMI-
';^,onsani,S.its-S.kvkv.
,_,5ee Misnomer.
Mistake— .See Aio>r.>
, TiifHT TO SrECIElC ?EK-
,ri>Hi KK.iii lu Specific
CE OE CONTRACT-Set SPEtlHl
.MANt'E.
.vj^__See Survey.
Is AND WRirrEN Documents.
1 I. GcneraJlij-
I • ,v,r<il evidence to reotity
r:r'Xw«tanaingthek«-
liment, not"' ., .uwties,
leffect of such .X K^a.'' ,,,,i,
their intentu m .uui a„i
I » O. S. 25.-Chy.
I ' 1 -f^ the Dlaintiffs for the
Lree.l w th *f^^'V fg„aaut8 con- 1
fme lumher, t^'«, V'" ,,ment for
Vuitee hi8 If ȣist aJvcement,
inadvertenlythetir -^^^
una himself to pay i , ^^A
I *^"lTtS2moTDeaU,
jit was ^^*<^«^\"", issue, if it werel
V 10 Q. B. 579. '
I «^ '^T VvSS tff:SoT
llacing them by others.
•2257
MISTAKE.
2258
Intention of parties. See Bell v. McKimhey, 32
Q. «. 162; .3E. & A. 9.
Lease. — Assignment. Mistake .is to position
of the property, tliuro being no froiltage on a
strec^t as supposed. K(iuitablc defence to action
li)r rent. 'l\ilbot et ctl. v. L'iMtin el al., 2ii Q. B.
170.
To an action of covenant on a lease, ilefendant
pleaded in substance, on e(piitable grounds, th.at
hy mutual mistake the covenant declared on
was inserted in the lease in ditt'erent terms from
what both i)arties had agreed upon, intended
:ind sui>p(rsed when the lease was exeeuted, and
that reading the covenant asi it shouM liave lieen,
[here was no breach thereof: — Held, (Iwynne,
!., diss., plea bad. Sliii'r v. .Slii,-r, 22 C. P. 147.
When a i)erson elected .alderman of a city
made a deelaration of office in.adveitently quali-
tyiug upon pr(jperty in respect of w liich he was
iiot entitled to tpi.alify, but was before and at the
time of the electi<in, in ' at the time of the issue
,if the cjuo warranto nions against him, (juali-
licil in respect of otl ^>roperty, his election was
iH)liold. Ui'ijlna e.i ;/ //tirtrii/ v. Dickiij, 1 L.
J. X. S. 190.'— C. L. Chiimb.— Morrison.
Where errors in computation only are shewn
,11 a by law, though extensive, the court Mill
lean strongly to support it, especially when it
li,xs been .acted upon, and where a previous in-
ifl'eutual application to (juash it has been made
upon other objections. Iti' Seroril nnil the L'ur-
MfiUion of the Voiiiity of Lincoln, 24 Q. B. 142.
Where to an action on a policy of insurance
u pkintitt's vessel, the defendants pleaded that
kfore the loss the p.arties cancelled the jjolicy,
while the evidence shewed that the cancellation
t.iok place .after the loss : — Held, that the plea
ivas disproved, and that the plaintiff was entitled
tu recover. Per H.ag.arty, C. J. — Knowledge on
the part of the defendants, and ignorance in the
[Jiiintiif of the loss having occurred at the time
4 sucli cancellation woulil render it inoperative ;
,111(1 even if the defendants were ecju.ally ignorant
■itith the plaintifiF, the cancellation \\-ould still be
vnid as made under a common mistake of fact.
Emtni V. British Ainerirn A.'^s. Co., 25 C. P. 514.
k married woman owning land, she and her
ksband contracted for the sale thereof, but the
leed executed to the purch.aser was a convey-
iiice by the husbiind only, with a bar of dower
liV the wife. The error was not discovered
: until after the property had been disposed of in
precis and passed into other hands. The origi-
I ml owner and her husl)and then executed for a
nomiiiiil consider.ation a deed conveying the
fniperty .absolutely to one of the parties inter-
ested, but under the belief that the only effect
•i such second deed w.os to remove the defect in
I tk first deed, and to confirm the title of all
I parties claiming thereunder. On a bill by one
4 these parties and the grantor (the husband
I l«rag dead) Vice-Chfvncellor Esten decreed the
OTitee in the second deed to be a trustee for
I »11 the parties interested ; and this decree, on
hplieal, was aflinned with costs. Grace v. Mac-
\iJmmtt, l.S Chy. 247.
Parol evidence is not admissible to shew that
|liy mistake the written agreement did not express
I tie tme agreement, unless mistake is expressly
|«larged. MeDmald v. Ko»e, 17 Chy. 657.
142
An imniiiterial v.ariation between a chattel
mortgage and the copy subse(|ueutly tiled does
not invalidate the re-tiling. Walker v. Xitu, 18
Chy. 210.
A mist.ake in the number of the lot where the
chattels were, was held to be immtvterial under
the circumstances. Hi.
2. Denrriptliin if Laiul Coiirci/ri/.
Part of the land included in a conveyance w.as
inserted by mistake, the vendor not being or
pretending to be the owner of it. To an actu)n
• on the covenants for title an eiiuital)le plea
i alleging these facts was held good. Heli/i n v.
' Miih- eiitl., 5 P. I{. 27.3.— C. L. Cluamb.— IJalton,
('. C. ,U 7^
AVhere a mortgage was, through error, created
, uiion a wrong lot of land, the mortgagor owning
j oidy the land intended to l)e embraced in it, and
j having no title to th.at actu.ally conveyed, .and
I he subsequently sidd the land to which he had
j title, this court ordered him to account for the
proceeds of the sale, not exceeding the amount
secured by the mortgage, with interest and costs.
Lund 11 V. MeKuniU, 11 Chy. 578.
C. convoyed certain land to <lefendant, and the
deed was registered. Afterwards C. by mistake
included this with other hand in a conveyance to
one K., which was also registered. Hefendant
subse(iuently sold the hand to the plaintiff, and
the deed to K. having been tre.ateilas a cloud on
the title, defendant .and C!. executed a bond to
the plaintiff, reciting the .above facts, and con-
ditioned to procure within two months a convey-
ance from the representatives of K. (who had
died), of .all K.'s interest in the land, or, in case
of their ))eing unalile through di.s.ability to exe-
cute such eonvej'ance, then to take the neces-
sary proceedings within two months to remove
such cloud ; .and ■within th.at period to make and
complete for the plaintiff' a good and clear paper
title, free from all incumltrances. The plaintiff
sued defendant on this bond, .alleging as breaches
that defendant did not obtain such a convey-
•ance, take such proceedings as would remove the
cloud, or make and complete a good and clear
paper title. To this the defendant plea<led that
the conveyance to K. w<as by mistake, and the
plaintiff' purchased from W. with notice thereof,
and on the understanding that proceedings would
be taken to foreclose the mortgage : that C.'s
executor h.ad foreclosed ; and that the executor
was ready and willing to convey to plaintiff all
K.'s interest in the property : that there was uo
cloud upon the title, and no title claimed by K.,
her conveyance being subse(iuent to defeiKl.aut's
and its registration : — Held, on appeal to the full
court, plea bad ; for the condition of the bond
j Ijeing for the removal of K. 's deed, the plaintiff
1 was entitled to have it performed, alth(uigh the
plaintiff might without it h.ave a good title.
Jlalfliewn V. Walker, 26 C. P. 67.
Where a vendee before obtiiining a conveyance
I .assigned to A. half of the land purchaseil, and
I to B. the other half ; and the vendor .afterwanls
I executed a conveyance to each, by which it was
intended to convey to A. .and B. their respective
portions of the land, but by a mistake in the
respective descriptions the conveyance to A.
comprised B.'s land, and did not comprise A.'&
n
nm
:■'! .:p;i;t!Sffl-
'■' 1
^!:<f,iP^i'
\ : {
l'!::i:'i;i''
1 1
1
■ i
Hi
li ^
liilt
K::]hij
•Mi
h
2259
MISTAKE.
ooi
own, nor did the conveyance to B. comprise A. 'a
land ; but uacli took and kept the lanil actually
intended for liini:— Held, Sprayge, V. V,., disij..
tliat, to a l)ill tiled liy H. against A. for a con-
veyance of H. 'a land to him, the heir of the
original vendor, in whom the legal estate in A. 's
land was still vested, was a necessary party.
liowsill v. Jfdi/ifrii, 2 C'hy. o,")?.
(Juierc, where the agent of a person resident
out of tiiis province soM l)y parol half a lot of
land of the orincipal, and afterwards wrote to
him a letter iietailing the terms of the contract,
hnt mentioning the whole instead of the half of
the hit, and the mistake was clearly proved,
whetlier this would he a sntficient note m writ-
ing to satisfy the provisions of the statute.
JvniibiijM V. J'ofxrttiun, ,'} Chy. 513.
In 1834, a contract was made for the purchase
of the easterly tifty acres of a lot of land, hut
through mistake the deed covered the whole
north-half, thus conveying the legal title to the
northly-easterly and north-westerly (juarters, hut
the piu'chascr went into possession of the portion
actually intended to be conveyed, and shortly af-
ter the vendee of the westerly jjortion went into
possession of and occupied it without any disturb-
ance of his title or assertion of right by the party
to whom the conveyance had been made by
mistake, (although all parties knew of the eri'or
that had occurred,) until the year IS.")?, when the
assignee of the person holding the legal title in-
stituted proceedings in ejectment, and recovered
judgment ; the evidence of adverse possession
not beiu'' sntticient to outweigh the legal effect
of the (feed which had been so erroneously
executed. This court restrained the owner of
the legal title from proceeding to recover posses-
sion, and ordered him to convey the legal title
to the plaintiff, who was ecpiitably entitled
thereto, and to pay the costs of the suit, holding
that the Dormant Equities Act did not apply to
bar the plaintiff'. Anicr \ . McKcniut, 9 Chy. 22().
\V. mortgaged his land to S., and afterwards
sold and conveyed the ecjuity of redemption to
A. ; but by mutual mistake the land was so
described in the conveyance to A. as to comprise
part only : A. sold and conveyed to S. by the
same description. The plaintiff" afterwards dis-
covered the omission, procured W. to sell and
convey the omitteil portion to him, and filed a
bill against >S. for a conveyance thereof. It was
proved that before the sale to the plaintiff W.
had sold all he purchased to A. : — Heul, that this
was sufficient proof of that actual notice which
is reipiisite in this class of cases. iVitjtp v. Set-
tertnufoii, 19 Chy. 512. See, also, School Trux-
tees v. Farrell, 5 L. J. 230.
II. In Leo.^l Proceedisg.s.
1. Genernll//.
Where, with a view of giving defendant time,
the plaintiff" had, u^on the misinformation of
the cleputy sheriff", given a receipt for the debt as
the only proper mode of staying the execution,
and which receipt the sheriff had stated in the
return of the writ of fi. fa. — the Court ordered
an alias to issue. Hiinierley v. Gould, Tay. 143.
In an action for a malicious arrest the plain-
tiflf's attorney served defendant's attorney with
a notice "to produce the writ of ca. re. issui
&c., at the suit of A., against the defcml.uit
this cause" ; —Held, sufficient, the niiNtnlo'
using the word "defendant" for "phiintil
being a mere clerical error, which cdidd n
mislead. \\'l/mn v. (li/iiioiir, 5 (.). ii. 212.
A mistake in the pleadings of " pliiintilf"
"defcnilant" is no ground of <lcMuirr(;i' win
there can be no doubt as to what was lueai
Jfai/iriiril v. Jhiriifi; 4 Q. B. 489 ; ()' Doiiiirit
Jfii'lilh't ,t/., 11 Q. B. 441.
An application for a new trial made in tl
court was referred to the C. P., as the vucn
had been returned there, and the cast', wlii
had been tried before the C .T. of tlie ('. |
was not to be found in his note bdok of tri;
from this court. A rule nisi was then olitiiiii
in proper time in the C. P., and enlarycd (m
the next term, and in the meantime it was d
covered that tlio record had been by mista
endor.^ed in C. P. Under these cireuinstani
the application was entertained in this euuit
the return of Liie rule. /Inin v. Sfnnr ,/ a/.,
Q. B. (i23. See also Caiwiffv. Jiui/i,i, 7 C. I'.'f
Helil, that innnaterial discrepancies betwt
the sworn copy tiled and the original eoi'iin'
constituted no ground for setting aside the jui
nieut entered on such cognovit and suliseqik
liroceeilings. Jrriii v. Ham, 9 L. J. 80. — C.
Chamb. — Draper.
A mortgage and memorial were executed
the 2()th I'ebruary, 1855, but by a clerical en
the date in the mortgage was written as 18,"
The mennu-ial stated the date of tlie nidrtgn
as 1855 : — Held, that the error did not vitiate t
registration. Hartij v. Aj)plthi/, 19 Chy. 20,"),
In 1855, the widow and chihlren of mie
two joint owners of land petitioned for a jiaij
tion under 2 Will. IV., c. 35, the other
being respondent. In the same year a part
was made under a writ directed to the si
the return and plan were tiled, and a ru
record and contirm it .vas moved for, hut
some mistake this rule never issued, and
was no official entry of its having been i
granted or refused. In 18('"0 the respn:
died. Th*^ partition thus made had always
ac(piiesced in, the parties supposing that it
been confirmed : — Held, that the court
not now, even by consent, examine and ci
such partition, for it would in effect be giv
judgment against a party (the respondent)
ral years dead, and the proceeding woiil
void. Park ct. al. v. Pari; 24 Q. B. 45il.
In a fi. fa. and the endorsements thereon
plaintiffs were styled defendants, and vice vi
the words being transposed throughout, hik
Christian names of the defend ant were alsci ti
posed : — Held, clearly irregular. Dnrklmn
V. Graniie, 5 P. R. 258.
When in equity any error occurs in dra
up any of the papers in a cause, and it is lie
sary to have the mistake rectitieil, the \r,
applying for that purpose must pay the oust
the motion. Eminons v. Crvoh, 1 Chy. 558
A testator devised to his son a certain iw
lot ; the residue of his estate, after certain n
specitic devises, he directed to be divideil
tween his two brothers and sister, amongst wl
after the death of the testator, the property
iti
th
itl
iiili
22G0
,ho writ of ca. re. issue.!,
rtUftiuHt tlie .icfoiulant u.
uSicicut, tho |;"f ^k;' ",\
feu.Uut" for "l.iiunt.ll
error, which oml>l not
i/(iioiir, SQ. »• -'-
[ea.Vmgsof "vhviutilV'f.v
,nmn.l of .leniurrer wIrr.
[■l.t a« to what was nuyu.t.
4 Q. B. 4S'.) ; <' />'"""" ^ ■
;. 441.
r a new trial lua.lo in tlu>
,, the C. v.. a« the reconl
^ere, ana theease^wh^U
iliii ( .1. ot tUo t . I ..
:^in his note hook of trials
rule nisi W'^ then ohtaua.
(- I' an<l enlarged until
,"„ the meantime it was .hs
ecorl ha.n.^-o".''y nnstak.
Under these creiunsta.....
, entertained in this eouvt , .
•iterial discrevancies hetwe.ii
£r^d the. original ..^novu
1 f..v scttinu aside tlie jU'lg-
1 ^liildrpu of oue <'t
*"""\Vnfver issued, and tka
Ins l^l^f'^*;^ i.T,vi„c' been eitliev
|"^\^"y"\fl8(=0there.von,k.nt
titi"»*^^':i n«tluvt'itW>
tiy -r!>! vf -HK he ^vi,.
22G1
MONEY.
noao
Styled defemlatB^^^^^^^^^^
^«*nS«S"verealsot™^^
r. B. 258. , . 1
I ., ^„„ error occurs in dr.wmg
luity any error ^^ i^^^,^,.
tpapersinacausc, ai i
Ihat purpose J^'^J^'^cXiy. 558. I
LviBedtohissoua^^^^^^^^^^^^
lue of his estate; ^r^'divided ^
divided, in which division by inistakc tlie lot
devised to tlie sou was included, wliieli was
iillotted to one of tho residuary devisees as part
(if liis share, who devised the same to liis hoiis,
ftud who, on discovering the mistake wiiieli had
hueii eoinniitted, applied to those interested in
the resi(hiary estate to have tlie mistake rectitied,
wlieii it appeared that some of the otlier residuary
devisees had sidd portions of tlie shares allotted
t(i them, hy reason of which are-division of tiie
estate was impossilde ; and a hill was thereupon
lik'd iiraying tor compensation for the loss sus-
tained hy reason of tlie mistake in tlius allotting
tho devised lot. Tho court, under the circum-
ataiices, onlereil a valuation to he made of the
rosi<luary estate at its jiresent valuo, one tliird of
wliich, with interest from the date of the Hrst
(livi.sion, to he contrihuted ratably by the other
residuary devisees or their representatives, or,
if desired by eitlier of the parties, witli an
account of rents and profits received. ,S7('».y<(//
V, Mu'itY,\OChy. <M.
An application to correct a clerical error in a
decree or order must, as a general rule, be made
uu notice. Itmlcnhnrxt v. Jfci/iiulil^, 11 C'liy. 521.
A sum of money having been paid in under
tbc decree, an applicaticm was made by the plain-
titl' to have it paid out, which the court declined
to order without an unctinditional executi(ui of a
disdiarge of mortgage by the company. A deed
sciled l)y the company, but which had never
liceii delivered, was then, througji some mis-
niiderstanding, submitted to the court as duly
executed and delivered, and on the faith of tliis
representation the money was paid out accord-
ingly. On tho facts being suhse.piently discov-
ered hy the defendant, and brought before the
court on petition, the court onlered the restora-
tion of tlic money. Jiobmni v. Wf'u/e, 13 Cliy.
419.
Ill taking account of mortgage money and
interest, the master computed interest up to the
llltli of March, but by some error in pieparing
his report the money was appointed to bo paid
on the l!)th of January. Upon the application
of the plaintiff ex parte this error was ordered
to be coiTccted. IV/iilc v. Courtncij, 1 Chy.
Cliaiub. 11.— -Spragge.
Where a defendant moved to dismiss the
plaiiititt's hill, the plaiiititf having failed to eoni-
ply with an undertaking, such failure having
arisen through a slip of the plaintiti''s solicitor,
the application to dismiss was refused. Di'riin
wDtiiiii, 3 Chy. Chamb. 491.— Boyd, Mantcr.
Where a party had a clear right in regard to
certain ecpiities to set them up by way of ecpiit-
able defence to an action at law, or to come to
this court, and by mistake pleaded them at law
a a legal defence only, upon which he neces-
arily failed : — Held [reversing the decree of
i Mowat, V.C.], that this did not foi-m any bar
to relief, on the same grounds, in this court.
imldw Allinor, IG Chy. 213.
An application was made to vacate a prajcipe
I decree taken iu the master's office, and to allow
instead of a disputing note an answer to be tiled
letting up the Statute of Limitations : — Held,
I that the motion was properly made in chambers,
I and waa granted, it beiim shewn that the note
I *u Sled through the mistake of a solicitor in
I (opposing that the defence of the statute was
available under it. Ctillonarh v. ('i-iniliiirl, •)
r-. .r. N. S. 212. — Hlake. Taylor, S,ry,i,ini. See
Wrhilit V. Miii-'jini, 24 Ciiy. -i.", p. 21(;(;.
in. Mr.sPELL.VNEoirs Casks,
Where a ileeree by mistake gave a trustee
priority, in respect of a delit iliie to him by the
estate, over claims of eert;iin parties wlio were
entitled to priority over the trusties: Held,
on an apidication to eorrect the error, tii;it au
assignment for value, exeeiited by tho trustee
after the decree, was no answer to the a[iiiliea
tion, and that the assignee took su1>ji.'ct to all
the e(iuities to wliicli the trustee liimself was
subject. WiKiil v. lii'itt, 14 Chy. 72.
A registrar of deeds gave to an intending piu-
i.'haser an abstract of title, which liy mistake
omitted an outstanding mortgage; Held, that
a purcliaser who had notice of the omitted mort-
gage could not make any elaiiii against tiie regis
trar in respect of payments made by the purcliaser
after such notice ; and the registrar who on
tinding his mistake lia<l brought \\\\ the outstand-
ing mortgage was liehl entitled to foreehiso tile
same, lircfjn v. Dickiij, 1(> Chy. 4!»4.
In an acti(in on a policy of insurance the proofs
of loss were not in accordance with the conditions
of the policy, in that the magistrate's certitlcate
stated that the magistrate was "contiguous"'
instead of "most contiguous" to the ]dacc of the
loss, and also (unitted to state that the insured
lia<l sustained loss on the property insured to the
amount claimed by him ; but it apjieared that
the certiticato was in accin'dancc with a printed
form furnished to the insured for him to till up
by the company's agent, as well as with the
policy at Hrst delivered to the insure<l, and in
his possession when the tire took place, but sub-
se(piently, and after the loss had occurred, on
the ground of a misdescription of the property
insured, exchanged for the poliey sued on; and
the defendants, though aware of tho plaintitl'
having c(unplied with the lirst policy and of the
mistake as to the suhseiiuent one, never informed
him, so that he might correct it, but laid by
until the trial when they atteni))ted to take ad-
v.antage of it : — Held, that under these circum-
stances the defendants could not avail themselves
of the mistake. SUhdiikih v. Tliv HdMinij-f
MutmdFire Ins. Co., 20 C. V. 380.
MONAGHAN (TOWNSHIP OF).
Held, that under Ifi Vict. c. 228, sec. 1, (re-
pealed by 18 Vict. c. 1.54), Birdsall's line, as laid
out on the ground, must govern as the allowance
for road between lots 12 and 13 along their
whole extent, and that it Wiis immaterial whether
such line was correctly described iu the statute.
Otiij V. Back, 12 Q. B. 454.
MONEY.
I. What is Money, 2263.
II. Foreign CuRRENcy.
1. Payments in — See PAVMENXi
. t
i'2G3
MONEY COUNTS.
-'26^
'_'. i:'tllt (ir Xiit't 111 -SW BiiAM OK Ex-
CIIAMIK AMI I'miMIM.SOKY NoTKS.
111. Sr.lZrUK OF -.Vri; I'^XKCLTIOX.
I\'. iMKItKST— .S*"*- InTEHEST OF MoNEY.
y. rA\MKNr iiv -.S'lv Payment.
\[. .MlS( Kl.l.ANKorS t'ASES, 'iHhi.
I. What is Money.
Dollars iiiiil UL'iits arc not New York eiirrciiuy
'n'ithin tliu lui'aning of 2 (ico. IV., o. \',i.
IVihiiii/ (7 al. V, .Stiiuiison, 1 (.). \i. 4'2S.
"Miu'.l. (J., or ))i!arer, .'r'4(i'i in Canaila MIIh,
payalilo fourti't'n diiya after datu," iti'. : Held,
ni)t a note ; for stiuh ))ills (isHiiod under "Jit & .SO
\'iet. c. !(•) tliongii currency, are not specie or
money. Onty v. Wnn/iii, '2\i Q. B. .Wo.
Qua'rc, M'hctlier an instninient iiurporting to
lie a bill of exeiiange, i)ayal>lu in New York,
"with current fund.s," if it mean other tiian
l.nvfnl money of the U. S., is a ))ill of exchange.
Sli'iihviix V. Hi rrii, l.j C. P. 548.
Held, that a note made in this province, pay-
nhle in cniicut funds of the U. S. of America,
was not a iiromissory note. Jiitti^ v. Willi r i-l
III., 30 Q. B. 23.
The plaintifl' having declared ui)on such
note, defendants pleailcd, setting it out in Inec
verlia. and alleging that it was ni.ade in this
province : that the current funds mentioned
were jiapcr notes issued l)y the U. .S. govern-
ment, and current there as money, hut that tlie
dollar named in them was not eipial to the dollar
ut our money, nor of any K.ved value ; and tliat,
except hy endorsement of said notes by defen-
dants,, there was no contract between them anil
the phiintiff : -Held, that the plea was good,
anil not oljjectionable as varying the written
contract ))y parol. JIj.
VI. Ml.SCELLAXEOUS Ca.SES.
A plaintiff may recover on an express promise
to j)ay a speeitic sum, though such promise M'ere
made on the occasion of presenting the .account
due to the defendant, no admission of wliich
account could, according to the '2 (ieo. IV., c.
l.S, 1821, be received in evidence, the account
rendered being m New York currency, and the
books from wliich the account was taken being
also kept in that currency. Crooks et al. v. Lati;
o O. S. 306.
As to the damages recoverable for breach of a
contract to advance money. .See ////(/e v. Good-
irham tt al., (i C. P. 21.
Agreement to sell American currency or green-
backs. Trover and detinue for. Property p.oss-
ing. Payment by promissory note. 8ee IVaMt
V. Jii-omi, 18 C. P. 60.
An instrument, dated at New York, signed
and endorsed I>y defendant, promising to pay to
the order of myself $1040.23 at the Bank of Upper
Canada in Toronto, with the current rate of ex-
change on New York : — Held, sufficient evidence
prima facie of an account stated, for that the
transaction would be assumed as immediate be-
tween plai^itiff and defendant without proof to
the contrary, and though not a promisHdry uoti
acconling to FidnicHtocK r. Palmer, IM'. |\ ly.j
it was a written acknowledgment of iuilclitcd
nesH in tlie sum named. The plaiutitl v,^
held entitled to the full sum of .*l(M(»,2;i, nii
nieroly to ho nuich .as woidd piircliase a dralt oi
New S'ork for that sum, wiiicii when the not
fell iluu would have cost only .'JTM : (,'niiil \
Yiiiiiiii, 'l'.\ i-i. 15. ;187 ; U'liiiit V. Yiiiiii'i, 14 (
P. 2.'>0.
I'laintUr sued for money advanced by liim t
defendant.s to purcliasc wheat for iiiiii, ciljii'in
tliat they had not jiurchased or accounted. |)l
fcndants pleaded, ni sidmtauce, tiiat tiic ininiiv
while kept unmixed with their own as tlu'iiiaiii
tiir's money, was stolen from them by pcison.-* mi
known, without any neglect on their part. I!t
marks as to such ih'fence and the facts reiMiiiV(
to sustain it. Birhli- v. Malln ir.snn vl iil., 2lj (>
H. 1.37.
If the court can trace money or [imiierty, liow
ever obtaine<l from the tnu^ owner, into air
other shape, it will intervene to Hcciiie it fur tli
true owner, ))y holding it to lie his in (!i|uitv
or by giving him a lien on it. Accordingly
where money was stolen the owner was lu Id cii
titled to a Icasehidd, furniture, and other chat
tels, purchased with the stolen moneys, and ai
injunction was granted to restrain parting tlicru
with until the hearing. VV/c Mi rrliniil.t' Kjiu'ii
Co. v. Mui-toii, 1.5 Chy. 274.
AVhere a robbery had been committe<l in ;
foreign country, Imt no trial had taken plaii
and the money stiden had been invested in tlii
purchase of property in this country, the c(iur
granted an injunction to restrain the selling o
incund)ering thereof, lli.
County money should be deposited to i
sep.arate account, and should not be uiineeesl
sarily mixed up with the treasurer's privat
money. Pevm v. Oxford, 17 Chy. 472.
monp:y counts.
I. Fuu Money Lent, 2265.
II. For Money Paid.
1. ncque.tt, 226(i.
2. Payment, 2208.
3. Daiitiiijcg and CoMh, 2209.
4. Other CasM, 2209.
III. For Money had and Received.
1. PrirUij of Contract, 2272.
2. Mom'ji Paid under PrulC"! or Cmiipi
mm, 2273.
3. On Payment of llleijal Fei'.i or Tut
2275.
4. Moneij Paid under Mintake of Fad*
of Law, 'linn.
5. For Money Paid on Illeijal Contnu
2278.
6. For Money paid on Failure of Cuiml
of ion, 2279.
7. On Iteiicinsion of SfKcial Contract, 22
8. For Money Paid on Failure of Ti
2281.
9. F<yr Money obtained by Fraud, 2281J
22G4
220r)
MONKY COUNTS.
2-'r.(i
, not a iiroiuiHuory iioto
\! rahmr, <.MM;. 17-i,
,.,1 'I'lio vliiintitV wan
,11 HU1U of *i(»-ui.;^:i. ix.t
oul.l i.vucliiwi^ a iralt .m
„ wliicJi w\u^« tlu', note
,Jt -mly ^-tM: (lr,n,t .-.
. )(■"(.«/ V. 1 <"'";/. '■* ^ •
„„ey a.lvau.a.a l.y lii.n to
,. whoat f,ii- Ini", aU.>;ni«
.haHf.loi- aicouijtoa. I't-
u(,«ta,..., t\uvtl\u'...nm.>'.
■iththi'iroNvna«lU>M'lam-
„ from tlu'iii \>y IH'iHoMH uu-
,,.alci:t on t\u'ir i-art. 1m'-
„,f:,anath. factHn.,,.u.o.l
CO money or l'<'"l'^':l> •'"';;■■
the tnu- oNvnev, n.lo an>
utovvenc to Hcoure It to. t\ e
L it to \.e luH m e.iu>t>.
, tn on it. A'-''ll",^^ >;■
.len the owner was luM ui-
r furniture, and other > >a ■
h' the stolen moneys, ami au
tea to restrain vartnigtheit-
,v hail 1>eeu conmnttc.l m a
Z no trial had taken vl.u.
,,,haabeen.nv.^t.ln e
rtv in this countiy. hh
S. to restrain the selhng er
.of. ^''•
al.niilil lie .lepositeil to a
^?th ll>e treasurers innate
O,for<l, 17 Oby. 4/2.
,>jKY COUNTS.
EY Lknt, 22(io.
•2'2tJ«.
i^ 22G8.
,, and ('V..^s, 22G9.
'a«'.s 22G9.
,V HAD ANP REfElVF.D.
of Contmet, 2272.
227 »
Tolls
:;uent of llkU^d Fo. or m.
]l>ahUmUr M Utah of Fact, .r
ey Paul OH Fmlun of um,
.obtained by Fnml,^.^^'
If one
IV
\'
10. AgniiiMl TninUeH or Aijiiil'<, 'A'S'.'.
11. l'iii,,/i,f'/,w,;iif of Miiiiii/, 22s;j.
12. Phiiiliiiij mill Ki'iilnii'i', 'J'JSI.
i;). Ollin- C'lixen, •.»i>8a.
14. JiifDiU'rhiuliiirk' TiUeH~Sie A.-t.-^KssMKNT
.VN1> T.WKS.
j.'i. Itri'iinrhiii liiivk MoHi'i/ fin'iil in Kii'in.*
of Liijiil hili't-i'-it Sii- i'sritv.
It). Iliriirrniiij Imrk Mniiiij /iii'n/ on Snli
iif Land .Si:r ,SaLK l)K L.\M).
AicoiNT .Stated.
I . Eridcnn:
(a) Jn^lrnniin/M jinr/Hirlini/ to he IiUi*\
or Xohx, 2288.
(1.) oilnr rV(«.s 2280.
'_'. As a Difmi'c, 221(2.
I'l.KAiiiN.i, 22!t;J.
iMoney
loneu
\\. Ml.SCKI.L.SNKOlS CA.SK.S, 220U.
VII. Foini AMI f'oNTKNT."* OK AkITDAVIT I'd
Hoi.i) TO I5ail on — -S't'c AniiK.sr.
I. Fou MoNKV Lknt.
The prothietiou of a elie(|ue is not even i>rini:\
facie eviilenee of money lent hy the drawer.
Fim/t r V. Fl•u.^l■|•, M. T. 4 Viet.
Ilelil, umler the facts set out in the report,
that tlie plaiiititl' was not precluileil from recover-
ing money advanced to 15. for the Ii(indation of
liahilities l>y H. to the N. company, or fr<im
enforcing any security for its repayment, hecause
that company, in such transactions, exceeded its
power nniler its charter. Cai/lii/ v. JlrDonmll
,t (d. 8 (l li. 454.
I'laintili' lent defendant f.V), upon a verhal
.vreement that ho should hnild with it a house '
ui)on a lot helonging to iiim, in which tlic plain- :
titf and her mother should live during the moth- j
er's hfe. The house was built, and they went I
into possession on this understanding, lint after-
wards it was verbally agreed that defendant '
should give plaiutitl' a Icivse during the life of the !
mother. He, however, mortgaged the premises
to a third party and brought ejectment to turn
plaintiff out ; — Held, that the plaiutitl might
recover back the 1)35 as money lent, //arrimjtun
V. Ilarrinijton, 15 Q. B. 241.
The plaintiff, a warehouseman and dealer in
grain, received in his warehouse from defendant
lictween the 1st and 14th of October, 8.'J2 busliels
of barley ; and between the 15th September and
the 2nd S'ovember, had advanced to defendant
iU2. Disputes having arisen, defendant sued
the plaintitf for the value of the barley, and the
plaintiff sued defendant in this action for the
[ulvance as money lent. In the first suit the
now plaintiff pleaded the numey paid, and re-
ceivetl the benefit of it. Tlie jury in this action
found that the money was advanced upon tlio
grain, not to bo repaid until the sale of the grain
to the plaiiitifif or some one else, and that there
was no sale to the plaintiff: — Held, that this
tiiuliug entitled defendant to a venlict. Tnuii-
pur V. Cnmdall, 31 Q. B. 9.
Advances made by commission merchants on
gooila received for sale — Right to recover. See
Mmr V. Holmes et al., 14 C. P. 194.
II. l"ol( MoMV I' Ml..
I , y^ ijnfit.
In declaring for money paid, it must be aver-
red that the money was piid by the pl.iintill' ,it
defendant's reipiest. .1(7'// v. /Imrriit/, ' l». |!.
I4:i.
A ea. s'v. against liiitli di'feiiibiiits w:is given to
the deputy sluritl', auil ii uirr.iiit maile to the
idaiiitill', a builill', to execute it ; he arrested
Iioth defendants, and otic tsciipid. The sherill
paid the did)t ;uid sued lijs deputy, wlm recover-
ed over against the liiililf, mid the liailitl' then
siiccl lidth defi'iidants as l'..i' niuney paid. A non-
suit was diii'eted, cm the ;,'i'(iuMd tliat the pay-
ment by the sliciiirsatisliuil the plaiiitill' in tile
original suit, and tlienl'drc this plaiiitilt eouM
not recover as for niiuity paid to the use of the
defendants, lieeausc tluir dtlit was satistieil lie-
fore: Held, that the nmisuit on tlii.s ground
was wnuig. (.>u;ere, however, whether, iindei
the facts pmveil, an assent to the payment could
lie implied cm the part of lintli di'ieud luts, so ;is
to sustain this action, Smnnir v. Kirkiiatni'!;
it al., 1()(,>. II. 48.S.
Tlio master of the appellant's vesstd, (on ap-
peal from the t'ouiity Court) on the tranship
iiient of a cargo of whe.it, on its way fiom
Owen Sound to (jtileliee, into the resp/iiideiit's
vessel, gave a recei] it to the respnudeiit tortile
lake freight, stating that the appellant's vessel
and her owner were thereby held responsilile for
the wheat, weighing 5,!l,'i4 bushels at (^(uebee.
(»n Jirrival at (,hiebuc the cargo w.is found sixty-
eight buslu'ls short, and till' respoinK lit allowed
the value of that iiiiantity to the edusiunee out
of the river freight : - Held, that the ri'spon-
deiit was not outitIe<l to recover the :imouiit
deducted as for money paid for the apiiellant,
there being no request on the aiipellaiit's p;irt
lixpress or implied. W'aihhl v. Mi'lnlu.<li, ~ V.
\\ 49.
Defendant convt^yed land to the plaintiff by
a statutory deed with covi'iiants for title, taking
li.iek a mortgage f/ir the purchase money, in
which it was provided that the pl.iintill' should
retain possession with default, liefoie making
the deed the defendant had leased land to one
I)., to whom the plaiutilt' wasubliged to pay fdd
to obtain posHcssiiiu : -Held, that this could not
be recovered as money paid, f(M' it w.is not money
paid at defendant's reiiuest, or for which defen-
dant was liable to I). I'roiii.ir v. Oamlilif, U> ().
B. 110.
One S. was treasurer of the eniintyof Middle-
sex and ;igent of the (ion; H:iiik, having his
otlicc for both purposes in the same huilding.
The council had no acccmiit with the bank, and
did n<it direct S. where to keep his funds as
treasurer, and he ha.l always received enough
to meet all disbursements for the count v. He
did, however, open an account with the bank,
without the knowledge of the e<iuncil, and hav-
ing misapplied the moneys of the council, over-
drew tluit account without the knowledge or
authority of the bank nearly .t'8,000, to pay
debts due by the county for interest on deben-
tures anil other claims. T'ho coupons on some
of these debentures were stamped by S. as paid
by the Gore Bank. S. having absconded, the,
bank sued the council for the amount thus over-
drawn, as money paid to their use : — Held, that
22C7
»I<)NKY COUNTH.
220
iwi |Mii'tiiiii of it cotilil 1)0 I'OL'iivureil. Tlir (lnvf \
liiink \. Miniii'i/iiilC'Diiiiril iif' MIiIiIIi'mi.i, \IS (}. It,
:>.v.i.
hcl'iiiil.iiitM vi'ii' tniHti't'H iiiiilcr tliu will iif iiiji'
K., till' iiluiiitiir \ivi\\^ in [i.ti'tiu'rHliiii uitli inic
iif tlii'iii, S., iiM iittiiiiii'.VH. 'I'Ir? |>liiiiitiir anil S,
Iti'oiiglit an iii'tion i>l' I'lci.tini'nt m tlic n.tnir nt'
till) ti'iintiii'H, \\lii(li uiiM rnniprciiniHiMl ut the
iiMsi/uj* liy S., ami ?<I,N(M), wliiili wii« ugrccil to
III! piiiil ti> till! lU'ti'iiilaiitH in tliitt Hiiit, wan
nei.'urt'il til till 111 liy till' iiiitrHiil S. anil tlir iilaiii-
till', lii.i iiai'tiiiT, on ifiiiviiij; «liii'li tlie ilrtVii-
■ lantN rclt'iiNi'il tlir lain! to tliu iilaintilin. 'I'liiN
laiiil wiifi iDiiM'ycil in •! ., a hhii of tiMtatnr, liy
wliiiiii it wan iimrtj^aj^i'il to |iav all ilainiM aiiniiiH
iiiit ot the ('>iin|ii''iniiHi', anil tin' inniicy tiiiih
iilitaiiit'il \Vi\!* Iiaiiik'il to S, 'I'lm plaiiitill' was
aftir«ai'ils hui'iI on oni' of tliu imtrs ^'ivi'ii liy
liim anil S., S. lia\inK 1'"''' t'"^' otliris, ami tlio
aiiiiiiint, S(!.").S L'."ic., li'vii'il fioni liiin liy uxiiutioii. ;
Till' otliiT truiti'i's wiru not awart' of tlic coiii-
iii'oiiiisi' w liL'ii niaili', lint iliil not ilittM'iit when
inforincil uf it, ami mi lii'in^' toM of tliu action
lii'imglit against the (ilaiiititr, Haiil liu onglit to
1)0 I't'-jiaiil. 'I'lic ]ilaiiitill' having,' Hiiuil tliuiii,
liowc'vi'i', tiny ili'fi'iiiliil at tin; ili'sire of #1. ; ami
tin; uimit liciiig lift to ilraw Kncli infi'riiit'L'S an a
jury niij^lit : llrM, that tin; iilaintitl' iimlil not
rucovcr, for tlni'ewaH no sulliuiL'iit uviili'iice that
hu ht'caine lialili' at tliu ilffumlaiits' ri'inicst, ami
liu coulil not III) Haiil to have iiaiil the money for
them or to their use. Senihle, however, that if
a jnry hail fouml for the jilaintitl', the venliet, not
lieing wholly nnsniiiiorteil hy uvidenee, woiilil not
have heeii set aside. Aninnir v. Jij/'nij ct tit.,
21 (i. K oV.i.
T. heiiig the owner of a lot of land mortgaged
it to the Kingston iiuilding Soeiety, and siilise-
i|Ueiitly agreed to .sell it to S. , I'ettiiig I', it H.
to join him in a liond, comlitioned that T., on a
certain day in .Mareh, IHitii, or as soon after a«
the society shoiilil exnire, should convey the
land to the oliligee on his inaking certain pay-
ments to T. T. having ncgleeteiT to make the
nioiithly payments due to the society on the
mortgage, the society, under a jiower of sale
therein contained, on the 13th .Seiiteiiiher, IS")."),
.sold tlie land to one \\. for i'2((0, heiiig .il.S,')
more than the amount due to the society. 1'.,
15. , & S. having heard of the sale entered into an
arrangement with W., whereby he agreed, in
consideration of tlie payment to liiiii of .i'3.")0,
to convey the land to S. T. gave to P. an order
to receive the halanee of the f'JOO, in the jiosses-
sioii of the society after the payment of the
claim, ■which being deducted from the £350 to
be paid to W., left the sum of £'2H 18s. lid. to
be made up to complete the payment to W. 1'his
sum was paid by P., B. & S. paying each one-
third, amounting to £71 P28. lid. 'l\ was ap-
prised of this arrangement, and said he would
pay the whole amount if he could, and that he
would make up SlOO, which he did not do. The
jury having found a verdict for P., for the
amount paid l)y him and interest thereon : —
Held, that there was evidence sufficient to jus-
tify a finding that the money was paid by P., at
the rei^uest of the defendant, 'V. Preston v.
TwUjfj, 11 C. P. 281.
S. having mortgaged certain land to F. agreed
to sell it to the plaintiif, and went to the office
of defendant, who acted as agent for F., where
8. executed a bond to convey to the plaintiff on
payment of C'JOO down and the balanci' by ji
Htalniciitx, and at the ri'ipifHt of S. tlii' iihuiitj
paid this C'J(II) to di'friidant fur V. on arriMim ,
the niiiitgagi'. .Vfti'iwaiils, at their jnmt it
ipii'st, ili'li'inlant rctiiniid t'.'O to the |i|,iiiitif
and S. having released to V. his i'i|nitv of f,
ili'iii|itioii, the |ilainlill sued ilefi'iiilant loreeuvi
back tilt' CbV) remaining', as money paid til )|
use. ."^ollie I'videllie was gnell at the tli:i| In »|„.,
th.lt till' title was di'feitive ; llelil, that tli
plaintiir eleaily eoiild lint recover, loi the in, m,-
was iiiit paid III ilcleiidaiit on any ciiiiti'in t In
twi'in him and the plaintill, but was a paviiiei
by .S. of his debt due to I'', Sunbli', llut t||
evidence was not siillieiciit to shew a laihue i
title, lint that if it had been, !•",, lliuler tin; ci
cllllislaiices, ciilllil at most have been lialileiinb
oil leceisiiig payment of his nioi'tg.ige, tiMimvi'
to the plaintill such title as he li.ul ilerivid ii,,,
S. Uriiiiiijiiii \. Cliff ii;'iij/it, '_'3 <L*. li. "Ji;!,
2. Piii/iiiinl.
Where the iilaintitF had agreed verbtilly wit
defendant to purchase land from him, and liaviii
been let into possession, had made payna iits u
account ill money and cattle, and dutciiilaii
afterwards sold the land to aiiotlicr peram
[iromisiiig to repay what he had rccuiveil fnu
the nlaintitl: Held, that on his refusal tuilnN
the plaintill' coiild recover the amount frmii hin
in an action for money paid. 7/(7/ v. S(iiiii,,i,
(l B. 14!».
In .May, 18.V_», the plaintitF, fur ilcfciulant'
acciimniodatioii, gave liiiii his note fur i;,-|(j
which defendant discounted at the Hank u
rpper Canada. On the Itth Noveiiilier, Ks,V.>
the defendant being sued by the bank \u
bliged to pay this note, together with L'.'i i.'ls, '.mI
... -^
idaiit fii
ink
costs. On the 10th of September, Is,'!;
plaintill' gave another note to the ileleiulant
t"40, for his accommodation, for the piiipus
renewing a previous note of the aaini' iKitiir
This note also came into the hands of tlic I
and was iiaid to them by the plaintill', Init
until after this suit, though defendant lia
counted and obtained the money on it liiti
T"he plaintiff having sued upon the cuinmo
counts, for money paid, &e. ; — Held, that
could recover only the amount of the i;."iU m
as to the claim on the £40 note, the payinci
made by the iilaintiff couhl not lie refcrieil
to the time wlieu the defendant reLcivui
money from the bank ; in other words, it c
not be said that the money was paid hy
bank for the plaintiff, and so paid by jiim tV
defendant, before the commeneeiiieiit nf tii
suit : — Held, also, that tlie fact of the iihiiiit:
having been arrested only for the aiiiuiiiit uf
first note, would be no objection to his rt'iuve:
on the second, if he were otherwise eiititk
L<'e» V. Wentli-!!, 1 1 (l B. 322.
Defendant owing one C, procured K. tu^
his note to C. for $400, and got the iilaiiitilt
give K. a mortgage by way of indeimiity.
having paid the money called upon thu iil'iiiiti
who, being unable to pay, gave K. an ahsolu
deed of the land, which K. accejiteil in satisia
tion : — Held, that the $400 for which tlit; lai
was thus taken, might be recovered hy t
plaintiff from defendant as money iiaiil. "(.'/ii
v. Uhipman, 2G Q. B, 170.
2-26«
„,,„.»t. i.f S. t\i.' \iliiiutitV
ilaiil lur r. "11 anuiml ul
vanlH, III t\i<'ir VMiit iv-
n,..l C.'>0 I" t-'"' \'l"i'''ll.
il 1.1 !•'. Ill" '■'|'ii*y "* "'■
«ii.«l'W't'''"i''""*'*"''''''"^'^'"
linjf, iiH inum'.v I'iU'l t" lux
-uTvonutt\i'tn:iltn»l,..w
fertivv : M.H. Umt tlic
„„t riTPViT, l..iUi.'i.iui»y
i„\iii>t on iiiiy <'"iitiii>l l'«-
lamlilV. l.ut NV.11 a i.a.v<m.jjt
U.U'iit ti. ^lu'W.iliulunul
;„l UoiU. 1'.. oi.a.r th.-n-
,„„«t hav.l.-.u h.iUl.Huly.
. ,,t' liis iiiuitK''K'^'- .^" '^,""^''>
title u« iK' lia-i 'l^'i'iv^l in'in
/'((//(Id 7l'.
tilV \iiiil ii«''^'^'^ vnUaiywith
t,. Uiii.l inm. limi, iH"' l'i'v"'«
Zxon, liail uuulo i.iy.M. Ml« .m
a, .1 ^•■vttW. 'V... a.hu.UMt
he laii.l to ivliutlKM; ikt^ou,
V w\uit he lia.l .ecL.v.a t,„.n
hi that .m hU luluMal to a., su
.eo.vci' the amount I.om, 1,m.,
luucy V
00
09
MONK.Y COUNTS.
21' 70
,aia. Jl'H "■• ■^i'<"'""< -
tho i.laiutilT, for .kteu'liuit
l.iiu his not'; '"'■ t'A
«'■ L. at the I'auk ui
( the 'Jth Novf.uWr, ISC',
, , ' „e,l l)y the hank WiW
^Iml of ' 'tenihcT, lN.yJ, the
ttr .'teto the.lelV.n,Uu,tl„r
; moaatum, tor the vii'l-;^-''
,».te of the saiiH- Mutiiru.
■"'"iut the haua..,tth. hunk,
""V mbV the l.lai.itltl, l.ut nut
:t.S;e.l the money ou U l.t,.rc,
«ued UIH'U the eiiiuimm
r^r mount of the C-.0 wot.;
'^^?thSouote,tl>el.lymeUt
' '1-rt . mUl not he retenva back
r'\\tiru=^"'"i'^"*''^^^'^ "''';';
^T„k in other woi>l«. 't ^"f
f I'" t' n o'uy was lui-l hy t k
''hi ami soVai.y limit" the
""* t'l.e eommenceiuout oi this
f" *i + the fact ot the vhuntitt
*''";.Sonyforthean>.,uuto.the
Two objection to his a.co«ry
^^^ he ^vJreother^vi.ocut>tW.
,;n(i.B.322.
• . MnP C wocurcilK.togive
"[^^San;i'gotthei«Ji
loi i? y^' { ludeimiity. K.
e money ca"«)^"l'j^ \i,,\m
r" W^rkCevte.iusat,ste.1
b^'w^'^;^for\vhich the land
r ShtTe 'recovered hy J
teeiuUntaa money l«ul. <-krL]
G Q. B. no-
3. Ditmimi'A ami C'liAtit, |
All actifiii for iiioni'y I'aiil will not lie for contn
n.iiil liy iiliiintill' u><ain«t a iicrxon who liaH rn-
,';im'cl to inch'innify him a^^ainst mnh lOMtri ; the
:i('ti(in Hhiiiilil he N|ii'i'ial on thi* iniU'ninity. Mil
1,1- V. Mtiiirii, i; (I. S. I(l(i. Sec A- ' i v. WiiUii/,
1 1 (.». h. .T."j.
Itail wlio liavt! puiil the eontH of an aetion I
.I'^ainut tlu'm«flveH, eannot rt'coviT them from
thiir |H ihcipal as nionev piiil : thiy must deehire
-liciially, Sliiii'i V. /liuiill, M. 'I'. .'I N'iet.
A. rclvam'K H. from gr.ol hy iiniK'rtaking to pay
( '. the ih'lit II. owed iiim. ( '. hmvm A. Ujion tills
iiiiil'Ttakinj;, and M. riwjtuwtM A. to defend the
•iiiit to ^'ain time; llehl, that A. ennlil recover
•I'liMi II. tiie eoHtH of this snit as money paid to
hiH use. Siiillh v. Jhtriilmni, 4 (}. \i. lid.
As to the rij,'lit, ),'enerally, to recover money
iiaid for damanus and eo»tH. Sue I'ovk.nant Kok
Trn.K K.VMAiiKs.
4. O/licr t'u.tt'n,
Wliere A. sol>l land to H. for t'i'-.V), and K
iiM it to ( '. for the same sum, and ( '. scild it to
li., and it wasaj,'reed lietween A., ( '., and I), that
|i. slmuld pay A., who thereupon discharged H.,
who ilischarged ('., and A. agreed t<i take from
p. laud in payment of t''J(H) of tlie purchase
iiiiiuey, and took h.'st promissory note for f'-'.'i,
till' residue ; hut having suliseip t'y liorrowed
t;!l,"i cif l>., instead of receiving ii iici a deed of
the land in payment of the fl'OO, n.; took a liond
that a tleed shouM tie made t<i him on the re-
|i:iyinent of the €!>.') hy instalments ; hut having
maile default in the payment of these, ho alian-
,1(1110(1 the bond and note given liy 1)., andlirought
111 action agaiiiBt H. for the t'J'J.'i, as money paid
td hi» use : — Hehl, that thi: aetion could not lie
luaiiitaiued, A. having lo.st his remedy on D.'s
lidiid tlirimgh his own default, and therefore
iiaviiig no right to make H. pay tho money.
lloliiH.i V. St/i'iirtr, ;} t). S. Kil.
Where a father, intending in the <H.stril)ntioii
lit his property to give his son ItX) acres of land,
was induced by the son to exchange that laml
iiir tli'i property of a stranger, the father paying
tlii") for such exchange, and the son promising
to repay it, so that it might go in the distribution
to the rest of the family, and the father then for
audininal consideration conveyed to the son the
laml received in exchange : — Held, that the exe-
I'utors of the fatlier might maintain an action
igaiiist the son for the €125 as money paid to his
nse;that they were not estopped by the con-
iiileratioii stated in the deed, ami it was not for
111 interest in lands within the Statute of Frauds.
ilcliride H (d. v. Purndl, 4 (). S. lo'i.
One defendant in assumpsit who has paid all
the damages under an execution, may recover
cuntribution from the other. In such action the
rtgularity of the judgment in the original suit
;aiiiiut he questioned ; and it is not necessary to
I shew any notice of the execution, nor demand of
the money, before action. Woodruff \. GUtHn/ord,
Uo. S. 155.
A. and B., being in partnership, applied to C.
to endorse a note lor their acconuno<lation. The
j note wag signed by A. alone, but was represen-
1 ted by botli as drawu ou account of the firm,
and that lioth were liable to pay it. When it
biM'aine due A. had abKciindid. ( '. having paid
the Mote : Meld, that he might recuvrr tho
amount he mo paid from It,, hm money paid to
liiH UKc. AiintM it III. V. LimrM, H O. S." liW.
M,, foinierly deputy Mherilf of the I,. distri<'t,
sues It,, the shenll, iur servlee,^ in the execution
j of his iilliee. At the triiil the pluintitV pinclni'ed
i an order drawn on liim by ileleiid.int in iavnur
of one I!., desiriii;,' hliii to pay the latter C'lOout
I of the mom.'ys he had received fnrMlierill's tecH :
llelil, that ill ivhseMic iif any further iiilcirma-
tinii, tli(^ mere priMif (if the piiyiiieiil (i| that (irder
I did not entitle the pl.iilitill toncover. Miiiirr
V. /{llji, IJr, ,■( ( ). ,S. .|,-,'.>.
j Held, that money paid on a promiHsury noto
1 on which till' plaintiir was guarantee or joint
maker with defendant, gi\en for the V(due of
g Is which, as the plaintilV knew, were to have
been smuggled into this province cuiild not Ik)
rucovcred. Amjii'i-ili v. Jimisi, ,")(>. ,s. (142.
Where two niasoiiH brought an action for work
and lahour against their employer, and reenvered
a verdict for t'(l(l, it was held that the eiiipldyer
could not afterwards bring an aetion agiiinst
them for money he had paid them on a( count,
md which he had atti'm]itc(l to iirovc in the for-
m'.r action, J/inil v. Mit'iittlni it ((/., (i (). S.
AM.
\. receives a hogshead of sugar to be stored in
his warehouse. It belonged to II., but thiougli
mistake was delivered to V., who claiincd it.
li. convinces A. that he has made a mistake in
delivering it to ('., and A. pays \\. the price of
the sugar : - Held, that A. on these f.icts need
not declare specially, but couUl recover against
(', for money paid. Kitnon v. Short, 4 i^. B.
220.
Where a plaiiitifr takes up a note which defen-
dant has given him, and which he was bdimd to
pay at maturity, he may recover against tho
defendant as for money paid. McXu'i v. Il'ify-
.■itaff, 5 Q. li. .588.
Certain premises in the city of Toronto which
drained into a ravine were demised bydefindant
to one A., of whom the ]daiutilf in replevin was
assignee. The city of Toronto, in making im-
provements, closed up the ravine, and thereby
occasioned an accumulation of water on the
premises in cjuestion, rendering a drainage into
the common sewerage necessary. I'hc ]ilaintili'
then drained his premises into such sewer, and
paid the frontage or sewerage rate charged by
the city bydaw upon the projirietor of the pro-
perty, and claimed to set off the amount of such
payment against defendant's rent : — Held, ou
demurrer, that such payment was viduntary and
could not be recovered back from the defendant,
although it might enure to his benefit. A Idirell
V. Hanath, 7 C P. 9.
PlaintifF was teller of a bank at which a note
of defendant became due. Defendant paid in
to pl.iintifl' a sum afterwards discovered to be
.€25 short, and plaintiti" was compelled to make
'it good to the bank: — Hehl, McLean, J.,
diss., that he Cfiuld recover it from defendant
as money paid to his use. Rirvrn v. Hoe, 4 C.
P. 21.
The plaintiffs drew upon J. abill for £200, pay-
able to their order, which they endorsed to tho
2271
MONEY COUNTS.
Ooro Haiik, l)y \\'li()m it was sent to tho a^eiit of
defoiidant.s, tlii; Hank of Uiipur Ciiiuulii, tor col-
lection. Wlicii it tell duo, .1., with tlic iigcnt'a
consent, drew upon the jdiiintitl's to meet it, hut
the proceeds of this draft, contrary to J.'s direc-
tion, were placed to his credit with tlefeiidants
.against other acceptances of his, and the fdain-
tifl's paid lioth drafts :- Held, that they might
recover the proceeds of the second hill from de-
fendants as money had and received. I'er lUirna,
J. 'riiey might also recover as f(U' money paid.
I'er Ivoliinson, ('. .)., not. Rh/ilill ct <i/. v. JJank
of I'pinr Ciniulii, 18 Q. B. 13!).
H. liatl leased to defendant certain ])remises,
the plaintilF liecoming his surety for tiie rent.
l)eien(lant being in arrear the tiiree met, and it
was agreed that tiie leiwo should he given i\\) ;
that tlu^ plaintill' should secure H. hy mortgage
for tlie amount due, and that H. should release
defendant. The mortgage was executed and H.
gave a receipt to the jilaintiil' for the sum secureil.
Before the mortgage fell <lue or Jiad l)cen satis-
tied, the jilaintilf sued ilefenilant as for money
paid, ami tiie jury founil that the mortgage was
received in satisfactiim of defendant's debt with
his assent :~-Held, that the action would lie.
iMcVinir V. A'oi/n; 17 Q. 15.529.
Defendant took a written agreement for a lease
of certain premises which was silent as to taxes,
but when it was signed, he verbally agreed to
pay them. >i'o lease was ever executed, owing
to a disagreement (m anv)tlier point. Defendant
occupied the premises for f(mr years, paying taxes
for three years witiumto))jection, but wlien sued
for rent subseipieutly accrued he claimed to set
oft' sucii taxes, on tlio ground that, as the agree-
ment nuide no provision for them and could not
bo added to by ver))al evidence, they must fall
upon the landlord : — Held, that having nuule
the payment voluntarily, in pursuance of his
own agreement, even if it were witl.out eonsider-
ati(Ui, he could not recover back or set oft' such
payment. McAnany v. rickcU, 23 Q. B. 4!)l).
The plaintifl's sued on the ccmimon counts for
money advanced by them to defendants on ac-
ct)unt of oil furnished by the defendants to the
plaintitl's, to lie shipped to Liverpool and sold.
The defendants jileaded never indebted ; and also
a plea setting up a special contract which was not
proved : -Held, that the plaintitTs were entitled
to recover on the common counts. I'dlnur it at.
V. J/olmesit ((I., 14 C. P. 104. See, also, ('rai<i
it (il. V. ('oirdntii, 23 Q. B. 441 ; Slfinirt v.
Lowe, 24 Q. B. 434.
l)efen<lant. at B., consigned for sale to the
plaintitl', a commission merchant at M., a lot of
butter for sale, and drew upon him at five days
for §2,000, ^^■hich the i)laintitf accepted, ami paid
at maturity. At that time his instructions were
not to sell for less than 18ic per If)., which he
could not get. The market ecmtinued to fall,
and after a lengthy correspondence the butter
was sent to plaintitf's agent at H., who wrote
that no sale could be effected there, and advising
J. Plaintiff then sued defendant upon the com-
mon counts for the money paid by him : — Held,
that he was entitled to recover, and that there
was nothing in the facts, more fully set out in
the case, to vary the common law oblig.ition to
refund the advance on request, or to compel the
plaintiff to wait until a sale should be effected.
Cowk V. Apps, 22 C. P. 589.
Defendant held the joint and several i
plaintiff, and one B. as security for the (i
the latter, after payment by whom, unkiK
I plaintitl' at the time, he eiulorseil it to (j|
who sued the plaintitl', and under press
judgment obtained ])ayment from liim (
amount covered by it:--Hehl, that the i
paid to \V. liy plaintitf was money paid
use of the defendant, from whom plaintill'
therefore recover it l)ack in this form of ;
MrKiiii/ir,/ V. .Slrinirl, 20 C. P. 2!).') ; a|
on appeal,' 21 (.'. P. 22(i.
P. conveyed land to defenilant, ".subjei
mortgage," and with a covenant f(ir ipucit
ment free from incund)ranocs. Defcndaiil
demised the same land to P. an<l wife fur tli
spective lives, and P. assigned to plaiiitilf
interest therein, to hoM during the life
The mortgagees, or their assignee, l)niugiit
ment against both plaintill' and P., win
plaintitl' paid tlie amount due under tlio
gage, and sued defendant for money paid
use: — Held, that lie could not recover i
form of action. Smidvr v. Siitjilir, 22
A surety paying the debt of his princijja
arrangements l>etween the creditor and tin
cipal dcbtiu', whicii would have dischari'i
surety, cannot recover back the money so
Oi'itn/ V. 77(1' (iiirc lianh, T) Clij'. .")3().
See WiUou el til. v. ^ft(■^^vll, 38 Q. B. 14, p.
III. Foil MoNT.V ll.Vl) .\NI> IiKCKIVI.I
1. Prifi/ij of Ctiiitna-t.
L. arranged with the (Canada Agency 1
ation, an Knglish Company investing nio|
Canada, and having defeiulant li.
manager and defeiulant H. as one
local directors, for a loan of money
paying off a prior mortgage on thi; I:(
L., and tile expenses, kc, the manag
his onler a check for the balance of
signed by H. & H. the defendants. I
maile a claim for a larger amount, sui
H. for what he claimed : — Held, on aj
the County Court, that defendants
liable, as tliey never received any iiiou
use of tile plaintill', having no coiitn
except as man.igcr and director of tli
ation, anil acting solely as its otliccrs
the evidence did not establish any
respect of the money claimed, without \\
action would not lie. //urart/ d nl.
hints, V. Loijdii, L'lxpoiidciit, 14 C. P. .■)!!
I'laintiff and others took out att
against an absconding debtor, and tl
seized being claimed, the plaintiff iiu
the bailitf, who sold and paid over tho
defendant, the clerk of the Division Cm
claimants sued the plaintiff and the jm
and recovered from them the value of tl
after which defendant distributed tl
among the attaching creditors, of wlioii
self was one, pro ratil. Plaintiff tliereii
defendant and his sureties as for money
to his use :— Held, reversing the judgm
County Court, that he couhl not recove
money was not received by defendaii
otlicial capacity as the plaintiff's, and the
2272
J security for tl.o.kl.tol
4- \.v whom, unkiiiiwu U>
■ .VilV anil ui»^«i' l"'^^'^**"''^' "'
i ^?^Heia. that the ,u,..v
^.tiffwas money p.-l to tlu.
2273
MONEY COUNTS.
2274
'■S:.X in this form "I a.t>uu.
V. i'J"' ; ;vllinin_ii
un
nt
it li;iL'
I'. •2-2t).
u,l to .lofen.lant, " sul.jcot tn ;i
■ 1, a covenant for -luut .njcy-
'^^""^"•"pan.Uvifeforth.inv.
mg
,the.lel.tofhisFi»^^M;;
lal ufti-r
.;;^:.ntl.creait..r=m,ltUeynj.
KUll.
Sh^.mia have di^charg.
.ec.verl..ektbemonuysniK
, MONKV UAO AN" l^^'*^'^'^"'
I PrivilU "f ^""' '•'"■'•
1 th tlio Canada Agency Asso.,
vctnig solely fi» "Ll, •uiv
•c ai.l not establish 'X
and tlwt
privity in!
, ai.l "''\,::.,;, ;.ithn-ut\vimhtho
*«.'^''"\T;nilU «>verthe.uonev
T who soUl '";'i,l''";^:..:„:„u c'.mvt. Tli
I the elerk of tl.e Divisio ^^ ^^^^,,.^
Thi
«"^^\"L^fl...mtheval«eoftlie
gdOO
■lie;
IreiUrotn them the,. ..■■-
hr\lefenaauta.Bnb«t^^^^^
f attaching creaiU^B,.ot^^^^^.^^^^^^^^^
brhir-etiesa.for:«^
l«rt,thathe<^«l "^ -,J,„l,i
against the plaintiff, to which defendant waa a
stranger, could not make it his as against defen-
dant, so as to sujujort this action upon the
statutory covenant. Quiore, per Hagarty, J.,
whether theplaintilT, having procured the money
to he paid to the defendant as that of the attach-
ing creditors, could afterwards claim it as Ids
own. Pirstvv V. Wilmot, 23 (>. 15. 348.
r'aintiff conveyed his land to (!. to raise
money by nuirtgage upon it for tlie plaintill's
use. ''■ did so, and for the i)laiiitill' paid de-
fendant's att(U'ney about .*il(50 under ))res.sure,
but under jjrote.st, wliich tlio plaintitl' sued to
recover back : — Held, after verdict, that it
might bo presumed (1. had jiaid, or accounted
for, the money to the ])laintifr, as lie had raised
it for the plaintiff, and that tlie jilaintiff miglit
recover. Sniidei-.ton v. ddinhirr, 14(!. I'. 330.
Defi-'ndant had ccnitracted to suiiply the
Buffalo and Tjake Huron H. \V. Co. witli wood.
Ill 18.")8, by an iuatrument under seal between
them, in consideration of $22,000, defendant
released the company from the contract, and
the company covenanted to indemnify the de-
fendant against all contracts made by liim witli
nneM., among wliich was a coutrac.'t to convey
to M . tw<i lots of land; one in South l'^istlio|ic',
which had been leased by plaiiitill's to defendant;
the other in Zorra, which liad been leased Iiy
the plaintiffs to one J., who had assigned it to
M. In 181)5 defendant wroti! to tlic Coiiipaiiy,
stating that the ]daintill's had claimed from liiiii
rout in arrear (ui these two lots amoniiting to
S.'}jO, and offering, if the Company would pay
Km that sum, and re-convey tlie leases, to
ijsunic them for the future. 'Die coiniiaiiy as-
Miited, paid him the $2000, transferred to him
liis leases which he liad transferreil to them,
,111(1 took a receipt under seal from defendant as
hi full of all claims for such leases, by wliich
receipt defendant discharged the company of all
iiirthcr liability in respect of tiucli leases under
the indenture of ISoS. Tiie company had pre-
vifiusly paiil the rent of both these lots, and dc-
iemiaut, after receiving tliis money, ])aid tlie
rent (in the Soutii Ivistlimie lot. 'I'lie plaiiitill's
liaviii!,' recovered from defendant as for money
received to their use ; Held, that tlie verdict
wius wrong, fortlnuigh the settler, ''lit was m.idi!
on the basis of the amount due to them on tl:e
leases, yet it was paid to defendant not as tiie
itoitifTa' money, but as the price of the railway
comiiiuiy's discharge, and there was no i)ii\ ity
Ictwecii plaintifrs and defendant. T/e (Uiixuhi
(miimiin V. McDumilil, 25 Q. 15. 384.
Defendant being the treasurer of a turf club,
Iv wliich horse iMCcs were conduetcd, received
snliscriptions from members and others to form
il'iuul out of which the ])urses run for were to
kiwid. The iilaintilT entered horses and won
purses, hut defendant refused to ]> ly, alleging
iliatthe club was imicbted to him ffu- advances
»liich he had previously made :- -Held, that the
pkintitf could not sue defendant for money had
al received, there being no privity between
them, ami defendant being acc(Uintable <mly to
tkclul). Siiiiiiisv. ncniinii, '2HQ. 15.323.
See, also, Firneh v. Wiir, (> L. J. 100.
2. Mmii'n Pit'itl under Pvotcut or (hmimlxUnu
_ Where taxes wore paid to the treasnrcr of
|tlie Hnnic district on lands in tlie Ottawa dis-
143
trict to be transmitted to the treasurer of the
latter district, and, not having been so trans-
mitted, the lands were advertised for sale, and
the iilaintiff, to save the lands, paid the taxes
to the treasurer of the Ottawa district under
protest : — Held, that he could not recover them
back as money had and received. Baldwin v,
Jolnmm, 2 (l «. 475.
The fact of a payment having been made
under protest, but without duress, or assent on
tlie part of the payee to any reservatiim of his
riglit, would form no ground for an action to re-
cover back the money. Dov. d. Mort/an el al,
V. Jini/rr, '.) Q. 15. 318.
I'laintiff s(dd to one M. a steam engine for
t()50, of which AI. p.aid £100 on account, i»nd
gave a chattel mortgage on the engine. The
])laiiitiff afterwards received a letter from the
defendant stating that the engine was to l)c sold
for the balance of an execution against M. The
engine w;w put np for sale, and the plaintiff be-
came the purchaser, but before the sale defen-
dant told the plaiiitiir that no chattel mortgage
could be given which wouhl prevent any other
execution attaching on the engine as long as the
execution in his hands was unsatisfied. That
sale was not carried out. The engine was .after-
wards imt up for sale again, iuid a person in
idaiutiff's employ bought it in for £.35, after
protesting against the sale. The engine was,
however, taken aw.ay by plaintiff after the first
payineiit on the mortgage became due: -Held, in
an action for money had and received, that tho
facts as above would not sup[)ort the action.
Morlini. V. Curhit/, H C. P. 251.
W. obtained from V. an order for £50 (which
was ]>aid) on a statiiinent that he could prosecute
him for felony :— Held, recoverable. Panco v.
IIV;/;/, '■• C. P. 375.
Plaintiff having bought a lot of land from de-
fendant, agreed to pay him iJlOOO on a certain
day, and to give a mortgage on the lot for the
balance of the ])urcha.se money, the defendant
agreeing to accept in part payment of the latter
an assigunieiit of a mortgage lield by plaintiff
for !i?l,()00, bearing six ])er cent, interest, which
was to lie sold to (lefendant at such a reduction
as Would |)ay him eight per cent. On a calcu-
lation made as to what this reduction should be,
jdaintitr objected that it w.as too great, but de-
t'eiidaut replied that if it turned (uit that there
had hecii a mistake he would rectify it Defen-
dant then credited plaintih on his mortgage
with the amount at which the other had been
taken. It was 8ubsei|ncntly ascert.ained that
an error had been made in the calculation, to
the extent of sonie!!!2(X). I )efendant sued plain-
till' on his mortgage for the balance of the
purchase money, less the sum for which he had
given him credit, and tlumgli admitting there
had been a i.dstake in arriving at th.at sum, he
refused to correct it, .and plaintiff paid him in
full under ])rcssure of the suit, but also under
protest : "Held, that the .agreement for the sale
of the mortgage was not an agreement relating
to the sale of land rcijuiring it to have been in
writing : — Held, also, that plaintiff was entitled
to recover back the 1J20, for that it couhl not be
considered a payment for the recovery of which
ho was estopped by what took place when he
waa sued ; but that he could not recover m\ the
common counts for nionov '('id and received.
i I
2275
MONEY COUNTS.
22(
Hi
0'<i
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i)'i'-; [■
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j' J.
1 '■' ■
Pi
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■' ■■■ .
,
; il :
i !
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im
'
The court, therefore, instead of entej-iiig a ver-
dict for the plaintiff, as moved, pursuant to
leave, granted a new trial, with liberty to plain-
tifT to amend liis declaration, Carscmlcn v.
Shore, 17 C. P. 4<J3.
An action for distraining for more rent than
is dxie cannot be maintained witliout a tender of
the sum whicli is really due, and the excess paid
cannot be recovered back as money had and
received. Oivtii v. Taylor, 3!) Q. R. .Su8.
The defendant, assignee in insolvency of L. k
Co., advertised the whole estate for sale, con-
sisting of a wholesale stock of groceries, &c., and
a distillery and jilant, which were 8))eeitied in
the advertisement in parcels, with the supposed
value of each, the total being sai<l to bo about
851,000. He had an inventory prepared, which
professed to give the cost price, and the .adver-
tisement invited tenders "at so much in the
dolla^ on inventory price," to be paid in three
eipial (piarter)y instalments, or five per cent, to
be allowed off for cash. Most of the goods were
then in bond. ^V. & Co., on tiie 12th January,
1875, tendered for the whole stock, "as per in-
ventory, the sum of 7()ic on the dollar, i)ayable
in cash after L-ning checked over the stock and
found it correct. " On the next day, at a meet-
ing of creditors, the assignee was instructed to
accept this offer, and he wrote to W. & Co. ,
accepting it, repeating the offer almost in their
words. Afterwards, acting under the orders of
certain creditors, the assignee refused to <leliver
the goods to W. & Co., unless they would pay
the duty as well as the 'H\\c, on the §r)l,000; and
to obtain the goods W. & (Jo. had to pay §4.% 000,
being about $l,.500 more than they would owe
according to their offer, without the duty : —
Held, that looking at the advertisement, tender,
and acceptance, \V. k Co. were not bound to pay
the duty ; and that the payment by them was
not a voluntary one, so as to prevent them from
recovering back the excess as money had and
received. W. & Co., to obtain po.ssession of part
of the distillery plant which was affixed to the
distillery, had to expend money in order to
remove it. Held, recoveralile as money paid.
]VU.-<o» lit al. V. Maxoii, l.diiih v. Wilton it ul.,
38 Q. B. 14.
3. On Payment of IlUijal Fees or TolLi.
Where the plaintiff agreed with a harbour
company for the admission into tlicir harbour
of certain property of the plaintifl for a lived
sum, less than the toll which they might have
claimed ulider their charter, but they afterwanls
refused to allow the property to be removed
without the payment of their usual harbour
dues : — Held, that the plaintiff' might recover
back the overplus. Mar.-</i v. Port Hope liar-
hour Co., GO. S. 100.
.Semble,that money paid as tolls under com-
pulsion, in order to enjoy a road, may be re-
covered. Little V. Pinulan iiiul Waterloo ATac-
adamiied Road Co., 2 C. 1'. 399.
Fees illegally exacted by a clerk of the peace
for services in striking a special jury, can be re-
covered back as money had and received.
Hooker el al. v. Oarnett, IG Q. B. 180.
Held, that an overcharge by the sheriff for
summoning jurors might be recovered back by
the county in an action for money had and r
ceived. Burns, J., dissenting, on tho ground th
the Statutes afforded room for doubt as to tl
right, and though the sheriff" might have uliiu'L't
toomucli, the mode of charging contended fori
the plaintiffs was not correct ; and that as tlie fe
had Ijcen demanded and paid for many ven
without (piestion, the sheriff" should nut
called upon to shew the exact sum to which 1
was entitled. Tlie Corimration of tin' Cuiintii
Ifalilinianil v. Martin, Sherij}', 19 Q. B. 178.
In this case the (piestion was, whether lorta
fees, classified in schedules in a special case su
niitted, could leg.ally be claimed, iuul how f
the county having paid them during sever
years upon accounts duly audited and passe
could recover back such as he was not eiititli
to. Besides deciding as to the different chare
the following general principles were laid dowi
— AVhere the clerk of the peace, at the reciuu
of the justices or municipality, or of tlie couu
auditors, renders services which he is not liom
to render, and for which no fee is allowed, thou"
he might be unalile to sne for his charges, y
when they have been duly audited and paid w
der no misunderstanding the municipality caiiii
recover tliein back ; and the same rule is applic
ble to disbursements, as for stationery, office fn
niture, itc. Where the fees are within tlic C.
U. C. c. 119, s. S, and have been received 1
the clerk contrary to its express provisions, tin
may be recovced back as money illegally r
ceived, tliough his accounts containing the
have been audited and passed. Corpunilioii
the County oj Lamlitim v. Pousnett, 21 Q. B, 47
4 Money paid under Mistal-e of Fuetn or of Lm
Of Farts.l—A party may recover back meiu
paid in forgetfulness of certain facts, whicli In
without doubt been known to him : — Held, th
upon the facts in this case the assured could n
recover back from the underwriters the anuiu
they hail paid on their premium note. /'.
nl. V. XeiwaMle Fire luMtrance Co., 8^}. B,
Defendant sold to plaintiff andM. some li'.in
the (piantity of which was estimated aivorii
to a measurcmeut made by M. and defeiidaii
son. Two notes were given for part of
purchase money, the first of which was paii
plaintiff and M. , and the second by plaintiff af;
iii
he and M. had dissolved partnership. It ;
peared that before tliis note was paid, aiul IjcIc
the dissolution, M. had gone over tlie nica!
nient again with defendant's son, and fmiiK
deficiency of £74 ; f(U- which, the plaintiff sii
defendant as money had and received :— H
that he could not recover, for the payiiieiit
made after the deficiency was known to M. \vl
the partnership continued, and therefore km
to plaintiff. Snarr v. Small, 13 i). li. liT).
M. had a contract to supply wood toarailw
company, for which he was to be paid wli
had been inspected and accepted. AVliilc
cords were lying in the company's y.ird
inspection, heassigned all tlie wood that luldiii!
to him, with other property, to tlie plaintifl',
the be.iefit of his creditors. Ho attliosa
time .nade over his interest in the contiiut
defendant, who completed it, and tlie comija
afterwards by mistake paid defendant foi' tli
152 cords, a.s well as for what he had him*
2276
2277
MONEY COUNTH.
2278
,n for money had and ve-
>utiug, on the ground tl\ixt
'voom for doubt as to t\>t;
aheriff nnght have charged
charging coutuiulcd lor by
orrect ; and that as the iwA
and paid fov '"'"'Y y»^^"«
le sheriff should not ";
lie exact sum to which Uo
''slwriff, 19 Q. B. 178.
lestion was, whethov certain
.edules in a special case mh-
, be claimed, and how tar
,,:iid them during several
duly audited ami passca,
' such as he was not entitled
iH as to the different charges
[vl priueiples were laid down:
of the peace, at the reciuest
uuioipality, or of the county ,
Bvvices which he is not bound :
i^liich no fee is allowed, though
[e to sue for his charges, yet
een duly audited and paid uu-
•ludiug the municipality cannot
• and the same rule IS apphea-
iits, as for stationeiy, othce fur-
re the fees are withm the I . \
i and have Vieen received by
J to its express provisions, tliey
d back as money illegally re-
bis accounts containing theui
ed and passed CV.7-n.,o»,:,
mWort V. Poi(.f<*W/, 21 (,,). li.i>-
of Lau:
supplied:— Held, that the plaintiff uiigl»t recover
this sum as money ha<l and received: — Held,
also, that defendant could not object that the
assignment to plaintiff was not properly tiled.
HcoH V. Killi/, 17 <i. H. 30(i.
Defendant having a judgment against M. and
iithers, obtained an order on (J. and others, gar
a
I
ndcr iMake of Facts or
l}"ss';,fceUn facts, ^dln:hW
,een known to him :-Held t at
a this CMC the assured could no
Itheuu^lerwriterstheanumu
u their premium note. /-•'V,.(
/'i)v liixitranci' Co., bk>. i^. •*"•'•
a to plaintiff amni. sonic h'.mber,
which was estimated a.v.admg
P^tiebyM. andd^njuju
'tes were given for part ot t it
V the tirst of which was paid by
riaiStliesecoiulbyphu;;t>rtM;r
d diss.dved l>^"'t»'^':f "• ,, f^
ore this note Wiis paid, and httdie
M had gone over the n.easuo.
til defendant's son, and foiuuU
fi, for which the plaiutitlsf
Lnev had and received t-"*-'"-,
tecovev,fortliep.^.u;j"3
.toficiencv was known to M. \\HiW
ccted and accepted. W loj
o c.mipleted It, f\" f ,VJ
iiisliees, to pay over, after deducting any contri
claim they might have. The defendant receivet
(111 this order .'?171, by check of the plaintill's
tirm, the plaintiff alone being the assignee of
C.'s estate. It was afterwards discovered that
the order had been for too much, and it was
therefore rescinded, except as to tlie proper sum,
which the garnishees' admitted set-off more than
covered, so that nothing in fact should liave
been paid: — Held, that the plaintiff' might
recover the .'5171 from defendant as money had
and received. Hold, also, that the fact of the
uayment having been made by tlie check of
jilaiiitiff's tirm, couhl not prevent the plaintill'i
alone from recovering, as the miuiey was proved I
to have been the money of C.'s estate, in which I
the plaiutitl's partners liad no interest. Scx-^ioii-^ \
V. SInicluiii, '23 Q. B. 41)2. I
A person seeking to recover money paid under [
mistake of fact is not now Ijouiid to sliew that |
he has been guilty of no hiches ; tlic only limita-
tion is, that he must not waive all enijuiry. T/ir
LiW' Soi'.Mii of i'/iix'f Vn.mula v. The I 'uvpora-
\m of the i'ltii of Toronto, 25 Q. B. 199.
Defendant sold by a bill of sale to the plaintifl'
Ilia good-will, lease, and certain druggist's stock
thereafter to be selected, to the amount of
sri,700. One V. selected tlie stock from the stock
list for the plaintiff, who paid the .'ij>r),70(), and
by some oversight a lot of lamp cleaners to the
extent of $ll-i, were charged and paid for as part
ottlie .^."),700, which, as the jury found, neither
P. nor the plaintifl' had ever chosen or accepted.
Defendant liaving refused on application to take
away these lamp cleaners, or repay the :# 173: —
Hehl, reversing tlie jutlgment of the C'ounty
Court, that, notwithstanding the bill of sale, the
plaintiff was entitled to recover back the .^173
as money paid under a mistake of fact, and
without consideration. Mlwjaijc v. Whiti', 34 Q.
B, 82.
The defendant insured his dwelling house and
contents in a mutual insurance company, stating
ill his application that he was the owner of the
property by deed in fee. The property being
destroyed by tire, defendant swore to the same
facts in his affidavit of claim, and(d)tained $700
from *he plahitiffs in settlement. The iilaintiffs
8iib8et|ueiit'iy discovered that the property was
not owned by the defendant, but by his father,
ami they threatened to arrest defendant and
prosecute him for obtaining the money paid to
nim under false pretences, and for perjury ; and
(leieiulant, to avoid the arrest and prosecution,
gave the plaintiffs a note for the .'?700:— Held,
that the plai'itiffs could not recover on the note,
for ui the absence of the policy, which M'as not
produced in evidence, it was not shewn that the
misrepresentation as to title avoided it, or enti-
tleil the plaiutitfa to recover back the insurance
money, and therefore no considerivtion appeared
tat that of avoiding the arrert and prosecu-
tion:— Held, also, that for the st- ie reason the
plaintiffs could not recover on the coinnion counts,
» for money paid under a mistake or misrep-
resentation of fact ; Ijut a new trial was granted
to enable plaintill's to shew the facts more fully.
t'uniuhi. F(irnn'rn' Mutual limuraiiei- Co. v. WaLioii,
23 O. V. 1.
of //((»(•.]— Money paid on a verbal agreement
for the sale of lands, cannot, witliout shewing
more, be recovered back, on the ground that the
agreement is void by the Statute of Frauds.
liarljir v. Anii!itrou(i. G C). S. 543.
Wlieii a person has paid money with a full
knowledge of facts, he cannot recover it back (m
the grounil that he paid it in ignorance of the
law resulting from those facts. Ptrrn ct al v.
\iicca.tll(: Fin' /iitiiraiicu Co., 8 (}. B. 3()3.
The mortgagees of a vessel had insured her
with plaintiffs. She w;is stranded at a place not
within the policy, and the plaintill's, who had
received a protest from the captain, assuming
that tliey were liiii.ic, sent their agent together
off. The agent met defendant at tlie place, and,
in his own words, "employed him as he would
have einphiyeil a perfect stranger " to perform
the service, advancing to him .S.'IOO on account.
The defendant it ap)[ieared was in fact an owner
of or interested in the vessel, but when accpiired
or to what extent was not shewn. The plaintiffs
having discovered that they were not liable,
demanded back the money, which defendant
refused to pay, alleging that he had used it; .and
they then sued :^ Held, that the jury were
warrauteil in liiiding for ilefeiidant, for if the
money was not paid up(ui the policy, but ad-
vanced upon a distinct agreement, the mistake
as to their liability would not enable tliem to
recover. Muntnitl A-tiiuranrc Cuiiqiamj v.
MvCormid; 25 C^. B. 440.
5. For Moncii Paul on lllcijal Contracts.
Where A. liad received money on an agree-
ment to deliver timber io B. which he afterwards
refused to deliver, and was sued by B. to recover
the money back, it is no defence to shew the
agreement made on a Sunday, and therefore void
niider 8 Vict. e. 45. ('(((7 v. Duijijaii et al., 7
g. H. 5()8.
PUintitl" and A. bet upon a liorse race, and
deposited the money with defendant as stake-
holder. The liet was illegal, as neither of the
parties owned either of the horses, and they
were not running for any other stake. A. won,
and the defendant paid over the money on his
order, having been previously notified not to do
so : — Hehl, that the plaintifl' might recover back
the amount from defendant as money had and
received. Andnvon v. Calhraith, KJ Q. B. 57;
SliMoii v. A(U(', 3 0. .S. 85 ; Hatternhi/ v. Odall,
23 Q. B. 482.
In an action for money had and received,
brought by the municipality of a township for
1857, against the defemlaut, who had Ijocn reeve
in 185(>, it appeared that at a meeting of the
council in that year, the defendant being in the
chair, it was resolved : 1. That the treasurer
should pay the defendant the sum of ^l'2\),
"for moneys advanced, attending commiss'on,
salary ivs councillor for 185(), for <lefendi.\g
Chancery suit, &c." 2. That the defendai.t
should be autliorized to sign an order on tha
treasurer to pay certain witnesses called by tht
council their expenses attending the commission,
:*! l;-
2279
MONEY COUN'IH
'^•2t
jnul paying other townsliip otliccrH, iti;., not
ftlremiy paid by orders on tlie treasury. 3. Tliat
the reeve Hhoidd >{ive an order on tlie treasurer
for £10 lOs., in favour of JV., for services
aa township elerk. It was ])rove<l that the
treasurer paid the .€12!) to defendant ; that the
cuinniission mentioned was lield under \'2 ^'iet.,
c. 81, Hec. 181, to examine into tiie linaneial
affairs of the township ; tliat the suit referied
to had been brouj^Iit by one (!. res])eeting tlie
atfairs of the townshiii ; but tlie elerk swore
that no doeuments had eonie into his jxissession
shewing for what the moneys i)aid to tiie defen-
dant had been expended, and no evidence was
given to shew what jiortion of the .C]2!> had
been received for his attendance in the eouneil.
There had been no by-law to authori/e any of
these payments :--Held, thatu})on this evidence
it should have been left to the Jury to say Ikiw
much, if not all, of the ,CI2!) was an illegal pay-
ment; and that the resolution, tlioiigh not
quashed, would be no defence. Witii regard to
the ditlerent items mentioned in the resolutions :
— Hehl, as to the "moneys, advanced," tliat
nothing could be recovereil without shewing tliat
the p.aj'ment made by defendant was illegal. As
to the charge for "attending connnission, ' that it
was prima facie illegal, and the defendant should
have shewn his right to it. 'I'hat any payment
to defendant for attendance at council was clearly
illegal, and could be recovered in this form of
action by the council of the succeeding year.
iSemble, also, that the treasurer might be in-
dicted for ma' ..ig such payment. As to the
nionej' paid for deleiidiiig the suit, that it should
have been shewn that there was some reasonable
ground of defence, and autliority by by-law to
defend. As to the second resolution, that the
moneys drawn under it must lie prove<l to have
been paid to defendant, and not to the witnesses
and otticers. As to the third resolution, tliat as
there was no evidence of illegality in the pay-
ment nothing could be recovered. T/w Mnii'ui-
l)alUy of Eaat Nmouri v. J/orsiman, IG Q. H. 571).
Held, that the 2nd section of 10 Vict., c. SO,
did not bar the right to recover in an action of
assumpsit for money paid in excess of legal in-
terest. Shimon v. Kvrhi/, 7 Chy. 510.
6. For Monei/ Paid on Failure of Consideration.
A foreign coriwration — to wit, a bank — cannot
maintain an action upon notes discounted and
received by them in the course of condiu^ting
banking business in this Province, although they
may maintain an action for money had find re-
ceived to their use against the party for whom
such note was discounted, and to whom money
was atlvanced upon it. Bank of Montreal v.
Bethune, 4 O. 8. 341. See Howe Machine Co, v.
Walker. 35 Q. B. 37-
A party contributing to a joint stock adven-
ture which does not go into effect, may recover
baok Lis money in an action for money had and
received. Gilpin v. Greene^ 7 Q. B. 58().
The plaintiflf, a« executor of one W., having
paid money to defendant, as a legatee, and the
will with the probate having Ijeen afterwards set
aside by & decree, the plaiutiii' was held entitled
to recover back the money. Huldan v. Beatty,
40 Q. B. 110.
A. Si, Jl., a lirm doing business in llaiiiilto
had a draft for !i:!|,20(), accepted by 15. nt M,,
treal for tlieir accomiiiodation, falling due (m tl
27tli of April. J I., in order to obtain funds
meet it, on the 2(ith of April procured a ili-.ift <
|{. for !#(!()0, to be discounted by tlie pluiiititl
tolling them that it would be accepted, ainl tl
proceeds of it were placed to the general cied
of the linn, 'i'liis draft was sent to W. for acce
taiice, and II. on the same day wrote to liim i.
closing tiie lirm's check for .^1,200 on tlie Hai
of iMontreal, to take up the !JI,2()0 draft, ai
rci|ucsting him to accept that for ijfiOO. dull
27tli I!, diily p.-iid the draft for .*;i,200. On tl
28tli A. and II. had a diilerence, and A. liearii
from II. that the lirm were in diliicultics, ai
that he intended using tlieir funds in payiii"
and another person, A. thereupon, on the 211
drew out on the check of the lirm their balan
in pjaintill's' bank, coiiaisting oi the pmcciMls
the draft for .StHK), of which A. knew iKitliin
and of other moneys, .Tiid handed it to tin
solicitor, for tin; beiielit of the creditors gciiciali
Hetween the 25th and 2!(tli, both tlie debtor ai
creditor side of the (inn's account had been dn
with, and tiie bahince increased in their favdii
Jl., on the 2!)tli, on hearing what A. had ilnii
wrote to H., that in conseiiueiice the check st;
to liini could not be jiaid, and H. then refused
accept the draft. On the 2nd of May the lii
became insolvent, and an assignee was apijointi
to whom the solicitor banded over the hkhiu
deposited with him. 'I'lie plaintilil', howevt
claimed the amount of the §(!()0 draft, contiii
iiig that it was only discounted on the faith
its being accepted, and that as one of tin: par
ners had caused its non-acceptance by his lutt
to the drawee, there was a failure of c(iMsi(lLT
tioii, and that they were therefore entitled
follow the money in the .issigiiee's hands ; imtj
llelil, that they were not so entitled : that t
case was the ordinary one of the discount
draft on the belief that it wouhl be accqi
and that the money formed part of the lii'
general assets and passed to the assignee.
Canadian Bank (if Commerce v. David-ion
C. P. 537
T
7. On Bescission of Special Contract.
An action for money had .and received .as
purch.ase money of an est.ite, will not lie so h
as the vendee enjoys the estate and continue;
possession. Snnirt et al. Executorn of Jim
Brofcn, 5 O. S. ()50.
Where the plaintiff let to defendants a fi
on shares by an instrument uniler seal,
defendants covenanted to deliver to liii
portion of the crop by o, certain day, Imt l)ef(
that day sold the crop and applied the inoiiuy
their own use : — Held, that the plaiiititf cot
not rescind the contract and sue for his prop
tion as money had and received. Dtmt
Sweeney et a I, M. T. 3 Vict.
Held, that under the special circuinataiices
this case, (given In the report) the plaiiititf coi
not recover back the money nieiitiouecl
defendant's receipt as having been paid
him by plaintiff on account of stock taken
plaintiff in u, certain foundry, in which the ji'
tiff had purchased defendant's interest urn
a special agreement, as money had and recciv
on the ground that the coutract had bceu rea
iir Imsiiiess ill U;aiult..ii,
acccptca l.y I'., ivt Mon-
'„\ivti(iii, fulling <Uh> ..11 ih<'
oi-aer to (ilitiiiu tuiiils tu
• j\,„-il iji-duurod a .\nift on
.countc.l l.y tlic vliti'ititU,
„ul.l hi> ivcccvtua, an.l the
lacu.l t.. the gfucval credit
ft waa sout to It. for ac.vp.
sauuM\ay ^vvototohlI..tu-
,..l.k{ol•!!^l,1200(mthch:lul<
' „i. the S>,2«0 >^''aft, aii.l
;;e,,t tliat tor JjtlOO. «>i't'o
vm were in ainicuHiw, au.l
i„j, their fumls in l«y"'r; '"■
T\. thcreuiion, on the -"itli
' k of the lirni their halaiut'
^onsiating of tlio l-'oee- « "f
, of which A. knew iioth ug,
;; nn.l haiulca it to tliciv
H^lit of the ereiUtors generally.
; ,aiil»th,hoththe.ehtora,u
nn'H account ha.\ been dealt
, ee inereasea in their lavuur.
hearing what A. Inuiaone
conseiiueiiee the cheek sent
. mill, au.lli. then retuse.Ui>
'onho2ndof M.ythetnm
and an assignee was aviMunte.!
eitmlmndea over the moneys
£ The l-laintillV, lioweve,
; t "of the i?(iOO draft, eonteiM-
rfu thatasonoottlievar-
«.,« a failure of consnleni-
S:eeiherefore entitled to
yU^he assignee's hands ;mt-
w.Tc not so eutitleil: tli.it tiit
dh^vV ouc of the diseonut ot a
"rthatitwouldbeaccei-ted;
nWtotheass.gi.ee. 1 h^
t,} Covmerce v. Dav,.!-
•22S\
MONEY COUNTS.
2-'8:
ihoii,
•?:>
V nionev had and received as the
X f o,! Pstate will not he so loii-
Lj^rt^Svtea..deo«tn.«esn.
p ,.( al. Executor,^ oj lnn.,> ^.
fetiffilettoaefenda.d^af-
tenanted to del n*^! 1,ut before
fropbyacertauMUy^^^^
•"" ft.,.V lm\ sue for his vro^r-
"S:.J.d received. D.ai v,
eceipt as ""^^"^ -1,,.^ taken I'i
Lent, as •'lof y.JrXeu '^^''l
^Uat the contract haaucei i
ded. (l!()])i.iHoii, (,'..!., dJHM.) A'lC/ v. Vnmirini, Ti
q. H. 580.
The plaintill' pnrehascil from defendant, who
held a bond for a deecl from one ('., his rigiit to
certain land. Before the imrciiase money was
jiaid up by plai.itilf, and after ilefendaiit iiad
obtained his deed fi-om C, defendant conveyed
to the (J. W. II. W. Co. a small part of the lot
for their road. It a})peared that the I'aihvay had
l)uen surveyeil before the sale to the plaintitl';
that the plaintitl' had taken and for some time
held iiossession of the lainl under his agreement;
and defendant deelareil tiiat he wa.s ready to
convey to the plaintitl', on receiving what was
due, giving him credit on account for the sum
paid by the company : - Jluld, that under these
circu...8tance8, the plaintitl' eon hi not treat the
conti'aet iis rescinded, and recover tiie amount
paid by him, with interest, as money had and
received. livuiinliU v. Crair/'urd, I '2 Q. H. 1()8.
The plaintilF .and defendant made the following
agreement : " I, S. (the defendant) give $'20 to
M. (the plaintitf) for the coJt which I have in
Iiossession, but I promisi? to give back the colt
to M. if he will pay thf san.e sum witii 12 per
cent, interest «' befoi'e the 1st May 1K(!(). If
not paid the coj. 11 be the property of S., then
he can do with it as he likes or keep it for him-
self.". The plaintitl' paid defendant J?!"), but
failed to pay the lialance, a.id in Sei)teniber I8(>7
defendant sold the colt :- Held, that tlie plaintitl'
oduld recover the $15 paid liy him, as money had
and received. Moore v. SHiIki/iI, "29 I). H. 487-
S. For iMoiKi/ Paiil on Fo'iliirf of Tillc.
Money paid by a tostiitor o.. an agreen.ent for
the pnrchtvse of lands, which the vendor has
failed to complete, may be recovere<l back by
the executors as money had and received to the
use of the testator. Exirutor-t of lioifx v.
Smm\, T) tl. S. (Kio.
An auctioneer at an atten.pted sale of goods
warranted then., saying they were his ow.i, and
lie would stand between the purchaser and loss.
Having sold the property by auction a few days
subsequently to a bichler on the former occasion,
awl the goods having been clain.ed and taken by
a third party under a chattel mortgage which
covered them, the auetiinieer, upon an action
for money had and received, was held responsible
to the purchaser. >Soiiicr.i v. O'Dunohnc, {) C'. P.
»8.
A party purchasing laud through the per-
I luasion of another (who did not pretend to have
J title himself), with notice of an encnn.lirance
tlicreoii, and making no search at the registry
otlicc, and paying the considei'ation to the per-
I iou through whose persuasion he purchased,
who appropriated it, with his knowledge and
wnsei.t, towards the payment of the incum-
knnee as far as it went : — Held, not entitled to
recover upon the common counts from the iiarty
Itowhom he paid it. Mitler v. CuiiDiihnj", 10
CI'. 448.
0. For Money Obtained hij Fraud.
A., a crown lauds agent, being asked by the
I jJaiutiff whether there were any lands for sale
Ibygovernmeut iu the towuship of M., told him
that there were nut, but that It. hail certain h>tH
tliei-e, to which ho wouhl sell his riglit, and the
plaintiir lieing introduced by A. to 15., paid the
latter t.'iO for his good will, together with the lirst
instalment reipiired by j»oveniment, and received
from him a receipt for the latter signed by A. as
crown lands agent. The jury found that the
reiireseiitation that tliei'e were no lands for sale
was false, ami made by A. in concert with W. to
enable the latter to obtain an advance upon the
government price ; }leld, that the i'.')0 and in-
terest might lie recovered in an .action against
A. and H. , either u}ion a special count charging
the f.alse representation, and the danuage sull'ered
in consecpience, or as money hiul .ami received.
McMa«Ur\. O.'ddr.i H iil., V.) (). H. L'Ki.
10. Ai/iiinxl 'J'ninti'ia or Aijenfu.
When money is received in the executiim of a
trust, money had and received cannot be m.ain-
tained against the trustee so long .as such trust
remains open. (^)u!ere, whether in this case,
even if there had been a linal settlement of the
account, leaving a surplus in the trustee's hands
the cestui ijue trust could have recovered against
him without declaring spe(;ially. Mr/'/ii)von v.
/'roiid/oof, •>{'. V. ,')7.
The .assignment eont.ained tli.'ee parties, C.B.,
the assignor, being the pai'ty of the first part
the defenda.its, the .assignees, of the second
part, and " the several other persons whose
n.ames ami seals are hereunto subsciibed and
fixed, ci'cditoi's of the said (!. 15., of the third
p.art." No creditor executed the assignment,
tmt the defendants (assignees) admitted part of
the plaintitl's claim by letter :-- field, that such
admission m.ade him a p.ai'ty to the assignment,
although he had not executed it, and th.at the
defendants were li.able for money h.ad .and re-
ceived, liiirroirn v. (<'(tfr.i i-f til., 8 C. l". 121.
Held, under the f.acts of this case, th.at de-
feiid.ants, as trustees, could be liable only in
e(juity, oi', if .at law, not for money had and re-
ceived, but in a special action on the deed.
Harris v. Hinilin et <d., 115 Q. B. 59.
Held, atlirming the judgment of the County
('ourt, that the Iwai'd of school trustees could
maintain an action for n.oney had and received
.against their secretary-ti-e.asurer, to recover a
balance of money in his hands not expended or
accounted for. The TruKtcex of S. .V. No. 7 in
the To,rnxhi])<f Stephen \. Mitchell, 29 Q. B. 382.
The <leclar.ation .alleged that defendant, as
.agent for the plaintitl's, undertook to expend
certain n.oneys for them on certain roads .and
bridges : that he falsely and fraudulently repre-
sented to them that he had caused work to be
do..e ; and in collusion with the persons .alleged
to have done such work, and by drawing false
orders in their favour containing such represen-
tatio..s, caused a certain sum to Ije drawn out of
the plaintiffs' trejwury : whereas the work had
not been done, and pLaintitl's thus lost the money.
Comn.on counts were added. It appeared that
the corporation, by one resolution, directed that
JjSOO should be granted to each councillor, de-
fendant being one, to Ix) by them exi)ended on
the roads ; and by another, that $100 should be
placed to the credit of each councillor, to be ex-
pended by them on the roads and bridges iu
:i28;}
MONKY COUNTS.
' ''Ml
their ruspeutivii (liviHimis. 'I'liis w;is in iiiatoi'd-
anoe with an cstabli.shed pvauticu, by wliioh tho
councillors Hnjjci'intendeil tho Inyiiig out of
moneys in their rcHpectivcdivisioiiH. Dofen-laut
granted several orders on the treasurer to diller-
ent persons as for "work done," wliich were
paid, and it ajipeared that such work, tlimiijli
rinifniftii/ fur, had not then lieen performed.
There was no eviilenei", however, of any frau<l or
collusion on defendant's part, t>r of any gain to
himself, except the usual eh:iryu to the corpora-
tion of the commission on such moneys as ex-
pended :--Held, that there could lie no recovery
on the common counts, fordefendant had received
no money. Qii:ire, whether this action would
lie by the corporation against one of its niendicrs,
or ■whether the proper remedy was n<it in c<juity
against defendant as trustee. Thf ('(irporalhni
of the, 'J'oinisliip ofC'/i<tl/niiii v. //oiisluii, 27 ()■ B.
550.
11. I'ldlif lif Ji'cilljil (;/' MdlKj/.
Where plaintiffs agent had paid money into
the agency of the (lore Hank at Sinicoc, partly
in cash and partly by che(juc on theConimercial
Bank at Toronto, to be [)laced to plaintitl's
credit with the (iore liank at HMmiltoii. and the
agent at fSimcoe took upon the whole sum the
usual connnission of a(]uarterper cent, for trans-
mission, but tlie cheque was lost in licing sent
from Hamilton to Toronto, and was never paid
by the C'onnnereial ISank, or credited to the
plaintilt' — it was held that the plaintitl eouhl not
sue the (iore ISank for the amount of the cheijue
as money had and received, '/'ui/i/ y. 'J'/w O'o/v
Jidid; 1*(J. K 40.
A. leaves with I?, the following receipt "Mr.
John L'Esperance has left with me a note 8igne<l
by J. ii. Treniaine for €'.(7, payable at the Hank
of Montreal here, at tliree months from the .'?lst
ultimo, which 1 am to account to him for if jxiiil,
deducting the amount he owes me.--('obourg,
April 1st 184i), (.signed), Benjamin Clarke." — A.
indorses the note and gets it discounted at a
Bank. AVhen it becomes due the note is re-
newed with B. 's .assent, w1h> indorses the same.
Before the renewal becomes due, B. sues A. for
money had and received: — Hehl, that the action
would not lie. L' Kiiiicrnncc v. Vlitrkc, 4 (i.
B. 12.
Defendants H. and (i., who had been in part-
nership as brokers, were sued for money had and
received, the cause of action being for the pro-
ceeds of two notes made by the plaintiff", payable
to them, to be discounted, which it was alleged
that they had received and not paid over. (!.
allowed judgment to go by default. It appeared
that the plaintifi' had handed the iu)tes to (J.,
acting for the lirm, to get them discounted f(n'
him ; that they were euchirsed in the name of
the firm while it eontinueil ; and that after the
partnership had been duly dissolved, (i. sold
them, and received the proceeds, which he ap-
plietl to pay a debt of his own, contracted by
liim in the name of the Hrni, H. not being aware
of the sale : — Hehl, that the plaintifF could not
recover against both defendants, for the money
Wii; not received by the firm, but by (i. alone,
Hfttu- the dissolution and without the knowledge
of H. Hammond v. Heward et al., 20 Q. B. 30 ;
fj. C, 11 C. P. 201.
Certain sale notes were deposited with dtf
dants as collateral security for the paynunt (
note, endorsed by the phuntiff for the accomi
dation of one iM., anil discounted by defciicla
for M. The collaterals were <if the same va
as the jirinciiial note, and were to l)e paid j
the bank and applied on the note, so that \\\
they were paid the note also was to be paid ;
the plaiutilf's liability to cease. After the ju
cipal note becanu! due defendants denied t
they held the sale notes as collaterals, and
fused to give the plaintiff any information a;.
wliat had been paid on them ; and the plain
then paid the note in fidl, and demandeil
assignment of the collaterals, the plaintitl's p
mcnt being made by a part payment in ca
and his note for the balance, which he paiil
maturity :-Hcld, that the plaintiff was entit
to recover, as money had and received to
use, the amount pai<l to the defendants on
collaterals, and that the fact of his only pay
[lart of the principal note in cash, and giV
Ins note for the balance, did not taki^ av
his right :- Semble, also that his right wn
not ))e atl'ected even if the payment on tiie (
laterals were after his payment. CnriiUhw \
Aiti'/(ira Distrkt. Uiink, 24 C. P. 2(i2.
See CurporatUm of the Townxhip of Vhnth
V. Hoii^oii, 27 Q. B. 550. p. 2283.
12. I'linilhiij mill Eriilciii-c.
In an aetiini for money had and recei\
against an attorney, evidence that the judgnu
under which the money was eollecttd, \
fraudulently confessed, was held nitt adniissil
WilHtiiiis V. KliKi, Dra. 4:5!).
The words "value received" in- " I pidii
to pay A. or bearer 25/. value received, t(i
p.aiil in mc-rchantable wheat at market price
import a debt due, and arc prima facie cvidu
of a consideration; and such an instrument i
be shewn under the count for money had
received, ami account stated. Wudtlfl v. MM '<
;U). S. 502; v. C, 4 0. S. l!)l.
In an action by a. treasurer of a district, uii
the Division Courts Act, against the clerk
Division Court, for not paying over iiiuneysl
ceived, it is sufficient to declare in the treamiJ
own name for money had and received by dui
<lant to the use of the plaintiff for the piuiil
of the act. J/oiraril. v. Walton, 2 (,). R I'Gli'
In an action on a sheriff's covenant it is a a
breach to state that he was indebted in a iial
sum for money had and received, witf
specifying how or on what occasion the niq
was received. VoiinucrcUil Binik v. Jurni
« ( ». S. 474.
AVhere a promissory iu)te was given to al
torney to get the amount of it secured, aiiilT
attorney subseijuently said he wonW [layl
amount in a few d.ays, and an action Wiis f
wards brought against him for negligence iJ
suing on the note, with a count tor nidiie}!
and received: — Held that neither count wasl
ported by the evidence. Drcniwii v. Bvil
3 Q. B. 72.
The party discounting a bill has, in geil
no recourse whatever upon the peraon fnmi \J
he has taken it, when the latter has not iu
>'(■
...le .\ci)i>»itea with duftii-
uritv *'«"• ^-^'^ l'»'y"'^"'^ "'' '^
„laintitV f..r the iv.a,im„o.
I \liscoui>te.l by AckiMants
a« ^vcre .-f t\>e sa.no v;i\uo
,u,d were to be ia>'l "'t'.
„„ the u.'te, s(. that ^vU.•u
,,tc also was to be \mA aiM
y to cease. After Uuvnu-
Uie aefeii^auts .lenic.l t\iat
otes as collaterals, and ru-
,;„t'ift" any iuforniatiim as t..
''i^^them; and the i,laint,ff
. n M\, and > e.ua.uUa an
:.,llaterals,thei.lauU,tUiK>y-
bV a vart payinent u. cash
^balance, which he i.a„\ a
that the Vlai..t.ll was cnt.tUd
,cv had and received to ns
,Jd to the defendants on tlie
dtbe fact of his only va>n,r
' I note in cash, and g>v.ng
} .l.,mi. did not take away
,fX'tlathisri,ht..ul
•Jnif the l-ayment on thecal
:,• his l.ay>»ent. ('.-n--.<A v. V/.
lUiiik; 24 C. 1. -"-•
„ „/ ,/„. Tomixhip of a^nhm
f . „w.nev had and rcceivt.l
J;:\Snce that the ju.lgmeut
V^' ,. ,..v was collected, was
iLsHr^^l^elduotadnn..!,!.
:,.,, »)ra. 4:V.).
• 1 " in— 1 iii'iinnsb
('., 4 0. S. litb
, " 4. .,«,ireiM)£aiUstrict, umlerl
.^^^V^t Siittheclerkota
'ourts Act, afe* „H.neysre-l
I „ a sheriff's covenant it is a g^i
I' '1, V 1 .was indebted ui a naimdj
le that he was^nmc .^^ ^ ^^.^^^^^^j
liey bad
2285
MONEY COUNTS.
2286
way made liinisclf a party to it. Peculiar cir-
eninstances, however, may render such party
liable on the common counts ; and it was held
that the evidence in this case warranted a re-
covery against liim for money had and receiveil.
Roiii V. Codd, 7 Q. B. <)4.
13. Other Caws.
AVhere a father took shares in an association
formed to build a steamboat, in the name of his
sou, then an infant, antl during the minority of
the child directed two of the sliares to l)e trans-
ferred to the defendant, which was done: — Held,
that the infant could not, on attaining his ma-
AVhere plaintiff had I)een employed by A. in
getting out timber, whicli A. afterwards sold to
defemlant, wh<iagrce<l verbally with the plaintiff
and others who had l)ecn working witli him —
tlic tinil)cr being in their possession— that ho
would pay tlie wages of the plaintifl' and others
if they woulil assist in rafting the timber to
*4>iiebec, out of the proceeds of its sale there :—
Held, that on nhewing the sale there, the plain-
tiff was entitled to recover for his wages as money
had and received ; and that the case was not
within the Statute of Frauds. Mi'IhiiwIlxA'uuk,
1 (), B. 542.
I A „ 1 and "received, witlumM
Hr.mwCt occasion then J
|w or on wu<"^ ,/„,r<(N''.i
Lmissovyi>«tew.«gW-to|u>4
Itheaniountontfcu^^^^^
Lciuently saia ^^^^ ^,j^j
A. was cutting tindier on R. 's land. B. re-
fu.sed to allow him, unless (!. , who was to get
jority, maintain assumpsit for money hail and j the tind)er when cut, should become answerable
received, to recover dividends on these shares, [ for it. ('. agreed to become so, and A. wixs per-
received by defendant. Ihdl v. lihliwll, 3 (). i mitted by l>. to take away the tiud>er. It was
further agreed between B. and ( '. that upon the
tind)er being passed at Bytown free of duties to
the <!ovcrnmcnt -tliat is, passed as private
timber — B. should be paid by ('. the price the
(lovernment would have paid for it had it been
Crown timber : Held, tliat upon a sale of the
timber at Quebec, ('. might lie liable to B. for
money had an<l received. JAcVk/i v. Mdlill, (!
(I. B. 142.
S. •-':.'.
M(mey had and receiveil may be maintained
against a sheriff by the plaintiff in the suit for
money levied on an execution. Shater el ttl. v.
Lwmtnl, 3 O. S. 314.
No action lies against the deputy sheriff for
money received by him and paid over to the
jheritf; the action must be brought against the
sheriff himself. liinl v. Iloiikiii-s H. T. 5 A'iet.
Where an execution creditor has under the
gtatute of Anne paid rent demanded by a land-
l(iril upon an execution against the tenant upon
the premises of the former, "■ i the sheriff levies
js well for the rent as the execution debt, the
sheriff lieconies the debtor of the execution
creilitor for Iwtli sums, and liable to him in an
action for money had and received, and so does a I these notes from the plaintiffs to collect tliere
liailiff under the Division ("imrts Act; and there- | f,,r tlicm. V. subscijueutly executed an assign-
ioro the execution money in his hands might be [ moit to the defendant for the benetit of cred-
F. had a demand against one T. on notes and
acceptances of about §2(>,()00. 'I'iie plaintiffs
agreed to transfer to liim certain l)ank stock
worth .'?2,r)r)0, as a h)an, to secure which he
agreed to assign and afterwards delivered to
them .'?14,200 of these notes, all of which were
negotiable, but some only were eiiilorsed by F.
T. failed in Lower Canada, and F. obtained
attached to satisfy the demand of anothei- exe-
cution claimant .against the execution creditor.
litehirt V. (Iran, 2 L. .T. N. S. 1(>3.--C. L.
(.hamh.— A. Wilson.
Where a judgment was assigned to defendant
lor the joint benetit of the plaintiff and himself,
ami he received the whole of it : — Held, tliat the
iilaintiff could recover his share as money had
ami received. Hooker el (d. v. MeMillaii, 4 ().
!. 14. I
Where, according to the rule of a race, for one
liunilreil guineas, the decision of the stewards I
1 waste he final, and the plaintiff's horse won the j
I fat heat, and came in first in the second, but, in j
I cMiseiiuence of alleged foul riding, was adjudged
j itiirs, including these notes in the schedule
' attached to it, but statin;,' in the deed that they
j were held by the plaintiil's as security for their
j loan. All the money recovered from T. on F.'s
' whole claim against him (about .'?300 excepted)
-came into the defendant's hands : -Hehl, that
' the plaintiffs might recover from the defendant
I as money had and received the amount of their
I loan out of the money received on tiie notes de-
livered to them as security ; and if the amount
! paid by'r. was paid generally on K.'s whole claim
I against him, then a sum founded on the propor-
tion of such notes to the whole of T. 's debt.
Leeetal. V. WomUide, 22 (,). B. I,").
Defendant living at ('hathaui, consigned to
liy the stewards to have been distanced, and I the plaintilV, at Montreal, certain tobacco for
another horse w;as pronounced the winner: ' sale, and, without authoi'ity, drew upon him at the
same time for •'?2i)0, which the plamtitF accepted
and paid. The price which defendant asked
could not be olitaiiicil in Montreal, and the plain-
tiff therefore shipped the tobacco to England,
where it was sohl. The net iiroccv , after de
1 Helil, that the plaintitl' could not contest such a
decision in an action for money had and received
I against the treasurer of the race, who had not
paiil over the purse, (lorhiuii v. lioidlou, (i ().
1 S, 321.
The Bank of B. N. A. in England, received
I money there to be transmitted to B. in Upper
It'aiiaik, and sent a letter of credit to B. to
1 receive the money at a branch of the bank in
I Toronto. The letter was taken out of the jiost
lollice in Canada (B. having in the meantiinc
land B.'s name forged on the letter of credit,
I mil the money received by some person un
The net proccv
ducting freight and charges, were only £14
sterling, and he sued defeiidant upon the com-
mon counts for the difference, §278, the expenses
of shipping being also deducted. Uefendant
|ileaded never indebted, payment, and set-off.
When the draft fell due defendant had written
to the plaintiff, oH'ering to raise funds to retire
Irawint; uiion him a^ain. The account
„„iu.^ M.W..VJ .-- .V " r-~ '*'^y drawing upon Uiin again
Inowu :— Held, that B's executrix was entitled ' sales received by the plaintiff from England had
to recover the money from the bank in Toronto I been sent to the defendant, who .said, on rc-
ttmouey had and received toB's use. '.'m;/-./ i ceiving them, that he did not think he ought to
(Iw., Ermitor-i, v. Hopper, (i O. S. .50."). ' bear the whole loss, but offered $150. The jury
2287
MONEY COUNTS.
m
¥*f 1
' ' .■ ■ '■;•
!■' |:!il
■:'il'''*
' ' '? ,■ ■'
tip:/;'
i : )
■ i,*^ •( ■
■ !j
, ;
',;';' ■ ■
si' ■' ■ ■
' ' 1
l-'i
«!' ^ 1
',
1 '(
;)■■■
1
■ ' ) f
1 >
^ 1.'
it
1
!'! ■' ■
gave a verdict for 8*200: — Held, there bciiiu no
evidence of any special contract, that the plain-
tiff was entitletl to recover his advanccH without
waiting for the sale of tlie tol)acco, and that if
he had done wrong in hit) dealings with it,
such defence sliould have Ijcen pleaded. The
verdict was therefore upheld. Sliirnrf v. fAnn',
24 Q. B. 434. See, also, Cralijui nl . v. Currnnni,
23 Q. P.. 441 ; I\tlmer tt al. v. Holmes H <il.,
14 C. P. 194.
PlaintifiF gave two notes against F. to defen-
dant, a Division Court t'lerk, to collect, and to
.apply on a note for 1?300 which the plaintiff'
owed to defendant. The defendant sold the two
notes to one M., guaranteeing tlieir recovery,
and M., having recovered judL'nient against F.,
but made nothing thereon, obtained back from
defendant what he had paid. Defendant trans-
ferred the note for §300 to T., who sued the
plaintiff thereon and recovered judgment : —
Held, that the plaintifl' could recover from the
defendant the money received by him from M.
as money had and received, for the defendant
hatl no authority to make the conditional transfer;
and as F's notes were extinguished by the judg-
ment recovercfl on them, and the holder of the
plaintiff's note ha<l recovered judgment against
him, the defendant had rendered it impossible
to restore the plaintiff to his original position.
Moorman v. Fanner, 27 Q. B. 1.
The i)laintilf having a bank account with de-
fendants' agency at St. Cathannes, <leposited
with them on Saturday morning, a))out 11.30, a
cheque of one (). on another Ijank in the same
place, for $350, payableto the plaintiff or bearer,
and not endor8e<l. The sum was credited in the
plaintiff's pass book as cash, ami the che(jue
stamped with a stamp used l)y defendants as
" The property of the Quebec Bank, St. (!atha-
rines. " On Momlay morning it was presented
for payment and dishonoured ; but it would have
been paid if presented on Saturday before the
bank closed, which was about one o'clock. De-
fendants iiaving charged the auKJunt of the
cheque to the plaintiff, he sued them for money
had antl received and money lent : -Held, that
he could not recox'cr, for defendants were not
guilty of laches ; and semble, that they could
nave recovered back the amount from the plain-
tiff, even if they had p.aid it to him. Owens v.
The Qneltef Bank, .30 Q. B. 382.
On the trial of an election petition against
the return of a member to the Ijocal liCgislature,
which resulted in favour of petitioner, to whom
the costs were awarded, the defendant was re-
tained by and acted as petitioner's attorney,
and M., one of the plaintiffs, a firm of attorneys
as well as b".rri8ter8, acted as petitioner's senior
counsel, under an agreement to that effect
with defendant, neither he nor his firm ))eing
retained by petitionei'. The petitioner's costs
were settled by defendant .and the respondent's
attorney, and defendant received .?1,()00, in-
cluding ^365 counsel fees to M., which M.
proved became the property of his firm. The
plaintiffs having brought an action against de-
fendant to recover these counsel fees, as money
had and received to their use : — Held, that they
could not recover, for that the costs, including
these fees, belongeil to the petitioner and not to
defendant as attorney. Miller et al. v. MrCar-
thy, 27 (^ P. 147.
IV. Account Stated.
1 . Er'ideiice.
(a) Iniitriimenfi* pur/iorthitj to be BilU or Xot
A document which acknowledges a sum
at the time of its date, but payable on a fut
conthigency, though not a promissory iKjtt
evidence of an account stated. UnKxclly )|',
5 O. S. 725.
In an action against two joint makers (
a note, one having signed as surety for the citl
the note is nrima facie evidence only of ivii
count stated, which the surety may rebut
shewing the facts. Jloyin y. McSlwrnict itl
O. S. (133.
In an action against one of two joint ni.akei
surety for the other, the note is not evidonui
an account stated. Jfofjan v. Maloiie, H. ']'
Vict.
A promissory note given to an agent ui)iii
settlement of accounts is evidence of an auudi
stated with his principal, when the fact of ngei
was known to the other party. lihoden v. Eji-
torn of ( 'rawford, 1 Q. B. 257.
Held, that the following instrument: '•']
days after date we promise to pay N. NuwIk
the sum of ,^83 15s, for value received," uii
which was endorsed at the time the 'uite h
given the following memor.andum, " It is ai're
that this note is to be paid by a lawful iiiortL'ii
with interest on the same, having three yeiu's
run," could not be sued upon as a note lictwe(
the original parties, and could not Ijc givoii
evidence under the count in account statei
Xewhorn v. Lawrence et al. 5 Q. B. 359.
For value received, I promise to pay Jam
McQueen and Jacob McQueen, or their urdc
the sum of £102 15s. cy., to be paid in yeai
proportions" : — Held, .as evidence of an atroii
statetl, though the money was not to be paviill
immediiitely. MrQueen v. MeQneen, 9 Q,
53().
' ' Three months after date, we, or either of J
promise to pay to Eliivs S. Keed, (the plaintil
or .John Fr.aser, his guardian, .at the post i
FiUibro, £119 178. cy., value received in rent)
farm," adding a count on an account stated,
was proved that defend.ant had been in pdssessl
of plaintiff's farm before and after the iiote^
made, which w.os given for rent due,
the plaintiff w.as abroad at the ftme of iiukl
tlie note : — Held, that this writing, tliounli f
a promissory note, would support a recoil
under the account stcated. Ueeil v. Rieil\
Q. B. 2(J.
A claim upon an .account stivted camidthesj
ported by a note which was not due at the c|
mencement of the suit, and the defence is a J"
able under the gener.al issue. Hill v. Liili\
(I B. 4()5.
The declaration contained three counts clJ
ing each £50, but the dam.ages were laiil (Hill
£50, and the particulars were for account f
dered £55 I. 5s— less by cash £22 lOs-tTtl
At the trial the plaintiff relied on tlie cmiiil
account stated, and produced adraftby liiiiistf
defendant for £55 158. Id., "being the lialauJ
full of your .account," .and proved that when I
sented the defendant acknowledged the mm
to be correct, but refused to accept it as hel
2288
2289
MONEY COUNTS.
2290
,UNT Stated.
yulciice.
ortinu to he BilU or XoUs.
V (ickiiowleAgcs a sum .lu..
te i)ut i)ftyft^>i« "" '^ *"'■>".'■
' u.,t a i.ronu8H..ry not. ,s
utstatea. liux'O'lty. "'"s
„„(. two joint makers nt i\
eVaTsui-ety for the othe,-,
Lie eviacnce only of au m:-
a the surety may re .u l,y
//oymv. iVoV/K'n-./.N-/.,(,
.stone of two joint makers a
thenoteisnotevuon;.;.,,,
lloijuiiv. Malone, H. 1., ,
,te aiveu to an agent ui^m a
,!f« is eviaenee of an aoc.mnt
Sal w»eu the fact of agency
"oCvarty. liho^ks.. E.a.
1 Q. B. 257.
T^'T vaSe'r?cdvea," „,,„
1 ,(• the time the "ote was
:rUt.rana«m,''It-a«.-,l
.*^ W mia l)y a lawful umrtgago
to be pa I yy ^j ,,,, t„
,;rsvX;ponas'anote.etw.u
i^Tcs and cUel not l.e gncu m
''the count in aee.uu^ .tat.l.
':^ K,l cv.Tto be paul m yearly
c*. ,.,1>itp we, or either of us,
r^ vSs S «eed (the 1«)
^"'•'^;t\u"n account stated. It'
"^Saa«ttadbeeniM>o~,
xtdetcmwuu the note was
"•'"¥"'^,"^C rent due, and that
r-"^' f .a Ithe finieof maki.ig
hrlrlht writing, tl.n.gh.ot
leld, that xm ^^ rewvery
ie';;ss£. £■■'-«•"• "I
but the nam. K .^eeouiit ren-l
partieulars ^vere I ^^^_^^,5,l
Ithe plamtitt *<;|'"\ °{t,,ylun«lf«1
ld,andproducedad«ft y^^^^j J
h''?"adprShatwhe«p.^
Iccount, ana I" , , ^ tlieatuml
afraid he woulil bo suud. A verdict liaviny liccn
found for t.'U.S.s. .Set, : .Sonihlu, th,;t tlie eviilence
of an acuoiint stated was sutiieient. MrMnrhi/
V. Miiiin,, 14 g. I!. l(i(i.
'\?aOO (!ood toT. T. to the amount of !?:}()(),
to be paid to liini on his order, at K. I'.'s mill,
in the township of Klma, in the county of Perth,
in lumher, at cash price" : — Held, a sullicient
acknowledgment of (Icht or liahility and a pro-
mise to \iay, and that it imported a sutKcieiit
consideration to sustain the count on account
statetl. Tyk- v. Coi/onf, 14 C. P. (i4.
An instrument dated at Xew York, sign, il and
enilorseil ))y defendant, promising to pay " to the
order of myself" S1040.2.S at the Hank of L'pper
Ciinad'., in Toronto, with the current rate of
exchange on Xcw York" : — Held, sutticieiit evi-
ileuce prima facie of an account stated ; for that
the transaction wouhl be assumed as immediate
between plaintill' and defendant, without jiroof
to the contrary, and though not a promissory
note, it was a written acknowleilgment of in-
ilehtedness in the sum named. (I'nnit v. Yunnij,
•23 Q. B. SS7. \Vw>il c.t al. v. Y<iiiii<i, 14 C. 1'.
•J50.
The defendant had signed a note or nistrunient
agi'ceing to pay five percent, a month : — Held,
that the amount agreed upon was recoverable
under the common count for interest and account
stated. YimiKj et al. v. Fluke, 15 C. P. 3ti0.
Held, til. ' a bill of exchange not properly
stamped was no evidence of an account stated
l)etwcen the plaintilf and defendant (indorsee
aud acceptor), as there was no privity between
them ; nor were certain letters wliieh referred
only to the hill, for if the latter was void, an
sckmi'vledgment of it and promise to pay in a
parti'ular way could raists no promise to pay on
the account stated, because there ^\'ould in auj'
event he no legal or valid consideration for the
[ironiise. S/iqi/wiit v licrnj, lo C. P. 548.
The notes sued on, which were void for want
of stamps, were renewals, with interest at 20 per
1 cent, added to them, of former notes ■\\'hich had
been given up to defendant, and of which
secondary evidence was given : — Held, evidence
of an accoinit stated, aud that the i)laintitl' was
entitled to recover the auKmnt of the original
Botes, and interest at 6 per cent. ItUdiie v.
1 ft•w(^ It; c. p. 42«.
Held, that an insti-ument in this form, "(iood
I toMr. Palmer for §>850 on deinand, was not a pro-
Imissory note, and so requiring a stamp — Wilson,
[J.,iliss. — Initthat ((iwynue, J., diss.) in the ab-
Iieiioe of any explanation of the circumstances
I under which it was given, it was prima facie
jevidenec to go to a jury of an account stated.
mhni-i- V. McLemiUH et al., 22 C. P. 258. S. C.
|in Appeal. Jh. 5()5.
See Waddle v. McCahe, 3 0. S. 502, p. 2284.
(b) Other Canes.
lu an action for goods sold, and upon an ac-
»aut stated, evidence of the acknowledgment
ly letter of an account being due, and of an ac-
Vunt having been read over to the defendant, to
fhich he made no objection, couided with evi-
lencethat an item of £2 in the bill of particu-
r!produce<l in court was the same which was
ad over to defendant, and with the witness's
144
belief that the accounts were the sam.', was l-oM
sntKcient to support the verdict, whiili wa', for
tlS,^ though one principal ground of the wit-
ness's belief of the accounts being enrrenpon-
dent arose from his knowledge of tlie i)laintitl"s
character. Lanje v. I'a-hin.s Tay. (52.
The plaintilT may recover on the count for an
account stateil on an express promise to pav a
specified sum, part of an account, tl'.o ailmission
of the correctness of which hy the ilefeiidaut
cannot be received in eviiluuce unilir2 (ieo. I\'.,
c. 13, the account being in Now York currency.
(.'miikx et al. V. Lair, 5 (), .S. .SOU.
An account stated by an exi.'cutor, of a
debt <lue by his testator nover lietore ascertained
or determined, is sulHcient to ch.irge the executor
11:= :\, substantive debt, without any express
promise to pay. W'atkiiis v. WaMmni, 2 l>. H.
2'Jl.
A defendant casually observing to a third
party, in the presuncc of the plaintill', that he
had i>aid the wlude price for his land, except a
certain sum, without any further explanation, is
not satisfactory, if any, evidence of an account
stated. Semble, that if otherwise the .Statute
of Frauds wcudd not have ajiplied, though tlie
sum was due in respect of the sale of lands.
Vurn.'< V. Fliiidall. 3 (}. B. 323. See also Dalhni
V. li<,tt.-<, Tay. 281.
A district council cannot be sued upon the
common money counts upon the account stated,
unless at least the subject matter of the account
be averred, and is seen to be such as can by law
create a debt from the defendants to the plain-
tiffs to be satisfied out of the funds of the dis-
trict, /fiimit D'l.itnet CoKiieil v. Luiiituii /)ls/rin
Cuiineil, 4 (,). \i. 302.
Where A., as part consideration for the pur-
chase of certain timber from B., promised C. to
pay B.'sdebt to him of f20, and paid £10 to C,
and was to pay the remaining 1 10 next morning :
— Held, that C. could recover the £10 from A. on
account stated. Fenjitssan v. Km; r<{). H. 2()1.
Where to a special count upon an award made
after the time had expired, there was added an
account stated ; — Held, that an award so given
could not be taken as evidence of such account
stated, .as the arbitrators could not be said, after
their authority had expired, to be proceeding
with defendant's .assent and to be stating an
.account for him .as his .agent. Itnt.lieen v. Ritth-
veii, 8 Q. B. 12.
A. gave to B. and C'. a writing, by which, for
value received, he jjromised to pay them a certain
sum in yearly proportions. This appeared to
have been given for the price of land sold to
A. : — Held, that it was immaterial whether the
land was owned by A. alone or by A. and B. , and
that the plaintiffs might recover either under a
count as on an agreement or on an account
stated. Mcquetn H al. v. Mc(,f"ei)i, 10 Q. B. 359.
One of two defendants having .admitted to a
witness called by the plaintiff that there w.as a
balance of £203 15s, due to the plaintiff, from
which was to be deducted an un.ascertaineil debt
due to the other defend.ant, and .also a b.alance
on a certain sum due by the plaintiff to his
brother : — Held, not sufficient evidence of an
account stated. Bloomkij v. Griiiton tt al., 1
C. P. 309.
2291
MONEY C0UNT8.
An iKlniixHiDii iiiiii1(> uiiHiiiilly to n stranger, iiml
not to till' (ilaintilt' or an agunt of \i\n, \n not in
itHulf anilicii'nt to HUHtain an action on thu ac-
count Htitcd. (.I'ririi V. liiirlrh, 1 (J. 1*. 313.
An aNnignnicnt of a right to real estate execu-
tuil iiniler Mcal l>y the tlefemlant only, in which
tlie conaiilenition money is acknowletfged to have
been i)aiil, will not sui)i)ort an action torthepur-
ohattu money, nor he receiveil ixn jiroof ot an
original executory agreement in writing for the
sale of the luemiseH ; nor will suhseiiuent ail-
misMions of <lefen<lant's liability aujiply the jilaee
of written iiroof or of an account stated, unless
some siieeilie amount he acknowledged. ///
The plaintilT sued the executors of Z. on ac-
count stated, and relied unon an account made
out by ilefendants' hook-lieeiJer, headed .is .in
account of the jjlaintill' with the estate of Z.,
including this work, and shewing a l)alance due
to him ; l)ut the book-keener stated that it was
made o>it at tiie plaintid's rc(juest, and on ac-
count of certain sealed contracts on which the
plaintiti' could not sue alone : — Hehl, not sutH-
cieut to give a right of action to the plaintifl
alone. Ziiniiuriiitiii v. Wuoilruj)' el nl., 17 (h
B. r)84.
The idaintiiF having purchased land from de-
fendant under a written contract, it was verbally
agreed between them that the sale should be
cancelled, and thiit defendant should return what
plaiutilf liiul paid, and pay him §102 forgiving
up his bargain. The plaintilT thereupon gave up
possession, and defendant sold to another. In
an action for tlie .iJilO^ (the declaration containing
a count on account stated) it was proved that
defendant had acknowledged that he was to pay
the plaintifi' this sum for giving up the land, Imt
the plaintifi' was nonsuited for want of an agree-
ment in writing: — Held, that if the acknowledg-
ment w.as m.ade after the agreement had been
cancelled, and the land re-.sold by defendant, the
plaintiff' might recover on the account stated ;
and this not ))cing clear upon the evidence, a new
trial was granted to ascertain the fact. (iros.i
v. Brkhr, 18 Q. B. 410.
The first count of the declaration claimed
£100, being the consideration for the assiginnent
l)y plaintiff' to defendant of his interest in an
agreement for the purchase of certain freehold
property. Second count, for money payable for
land bargained and sold by plaintiff to defen<lant,
on an account stated, and for interest. J. , the
owner of .lO acres, agreed to convey certain lots,
in accordance with a lotterj^ to be held by one
D. Lot No. 107 in the lottery was the prize,
and WAS supposed to have a mill privilege upon
it. One v., the holder of ticket No. 35, liecanie
entitled to No. 107, and he re(iue8ted J. to con-
vey it to plaintiflF, which was done. Subseiiuently
C. (defendant) agreed to purchase the mill privi-
lege from plaintiff, but not being satisfied with
his title, he took a quit claim deed from J., pay-
ing him £15 7s., which he said he would deduct
from the amount he was to p<iy plaintiff. L.
(plaintiff') had drawn another lot, and obtained
a conveyance of it upon giving his notes for the
purchase money, which notes J. gave to C. (de-
fendant) when he conveyed the mill pond to him.
These notes formed no part of plaintiff's payment
for lot 107 : — Held, that the evidence did not
support a claim upon an accouut stated. Lloyd
V, Clark, 12 C. P. 320.
The mere calculation of what is due an
balance of a former tranHaction will imt hui
an action on account stated. Mi'lun/ v. i/ri
30 (^ H. rA.
I'laintiir assij^'ned to defendant his intiTci
a certain lease, by deed containing a reccip
the consi<lcration money, 5t3.")(». This deed
placed in K.'s iiands to imld till ilefejulaiil
posited that sum. K. delivered it to dtfi'ii
on his promise tliat he would pay, and iUIlii
afterwaiils \iaiil iiim >}'•>, saying that he w
hanil him the Italance as soon as he obtaiiic
On being asked again he said that he liad
money, but that tbi' plaintiff' should jiay pa
the expense of a bund wliicli he liad had tn
resiieeting tlie title. IMaintill' then sued i
the eonimoii counts for the purchase^ muhm
land, ami <in an account stated : Meld, tlia
was estopiied by tlie receipt under seal,
could not recover on either count, ('cpckii
Ward, 1 ('. U. S.'iS, distinguished as to
account stated. Sjiarliiii/ v. Siirinir, 'J-, (
25it.
I'laintilf sold ami conveyed certain lainl
deed containing a icceii)t for tlicpun li.isc im
■*>80S, with a receil't for same also iinlc,
i'laintiff then sued ilefendant upon the <(ii]
, counts for the ]imchase money of the land,
on an account stated. The (Icfindaiit ]ilc;
aniiiiig other pleas, payment. After tlie sal
I fendant told one M. tliat he had oidy paid |
|tiff'.'?4l, and off'ered < i pay him, M., wlial
jilaiiitiff was willing he siiould. It also ai]|ic';
] though not very clearly, thatplaiiitill' was pic
at tins conversation ; -(4)uivre, wliethei' tlic
j versation between defendant and M. ainmi
I to a statement of account, or anything i
I than an admission from which non-p.iyiiui
! the purcluise money might be assumed. (
{ V. MrCiill, 19 V. P. !»0.
I Tliere must be an antecedent aii<l sn)
debt between the j)arties, and a special
I iiient to pay a sum of money cannot be cnii\|
I into an account stated. A bill of costs wal
j in, taxed at £40, in a suit by one \ . agaiiif
I fendant, in which M., one of the plaiutitl'J
plaintiff's' attorney. There was a receipt tJ
I endcu'sed upon it signed by M., and a iiicil
I dum signed by defendant, " 1 will pay tliel
balance one week"; — Held, no evidciicel
account stated. Tunis ct ul. v. SilU, 'J!) ().
See McMurtrii v. Miairo, 14 Q. U. Kiii, pi
2. Ah a Defence.
In assumpsit for work and labour, it i|
cieiit to plead that after the .accniiiii,'
causes of action, and before suit, the |il|
and defendant accounted together of
cerning the causes of action in the clc
mentioned, and certain other demands i>t|
dant against the plaintiff's ; and ii|» J
ac>;ouiiting a sum of £50, and no lanf
found to be due from defendant t(i \<l\
which the defendant then promise<l tn
plaintiffs, and hath alw.ays been willing
Melrille et al. v. Carjjeitter, UX^. B. l,'i:il
A similar plea to an action on accimiill
held good. Jieatde v. Hateh, 12 Q. 1). l|
Where a defendfint by his answer
stated account, the plaintiff does not mX
2292
•2-10'i
MO NOR) I A'.
2291
(\v\t' aH
Ui.^
'^ '^:""^:\ 5't at \>.^ NV""»'l
■ i;*'' ■ 1, ho ha.l iia>l to L'lv
. I'^'^V'^^'V,, ' . H, ,n.,nov.,f
«forthc\m^»'^;j ,,,^^i,,,
•-.uut stato.l « ^^„,,
tUe .'T'^'^'^ou t VnoUiu.; >•.
"" ^•'*;l'':- Hhod as to tl...
Sjiiii'liii'.l ^'
1 ,.,.vtaiu lau>\, tin:
v^'^^'^'V".nu also hoi... S..I.
'>--^f^;!;:raoouaantvi'-^->.
tatod. '"''/' .vftov t\io saW ck-
'^^"■'', 2mU\. It also an
^^^I'^^U t vt 'I'vh.thl^vasyvu
ilofeiioe hy hrhigiiij,' <iii tlio civiixi' l>y way of iiio-
tioii for docref ; ami tho proper (U'cii'c in hiuIi a
caui) in IV luft'reiice an to hiicIi allcgi'il uccnuiit.
.Vr,7v. ^'iit, ISt'hy. 110.
V. ri.KAI>IN<l.
To an actinii on tliu coniniou uountB for hoanl,
,^c., fimiiil for tliu (Iffuiuliuit's illogitiinato oliilil,
;it (lofeiidaiit'M ri'(|uuHt, ivlU'giiig a HiilwiMiiii'iit
imiuiisi' of (Icfoiiiliuit to pay, itc, a ilciiial of tlu^
roi|\iost was liohl a )>ail pica. Flulu r/i/ v. J/c/'c.i,
1 i,t. H. -J-M.
I'o a lU'olaration on tlio coninioii counts, for
i^ddiln solil, iVc. , ilcfi'iiil;int pluailcil thiit the
I'ausi's of action, if any, accrucil against ilcfcn-
,l;\iit anil one S. ; and tliat after tlic gooil.s \\crc
■iiild, &c., and licforc suit, to wit, on, iVc, hy
;uiliiiturc niailc hctwccn defendant, then a part-
ial', and for and on lieiialf of the lirni of S. it F.,
1). iS: H., and plaintitl' and otlier creditors of
siiid linn, in consiileration of defendant assigning
;,11 his goods to l>. it II., they agiccd to pay 7s.
(111. in the pound on the amount of their respec-
tive claims as set o|iposite their respective
lumics in the schedule to said indenture annexeil ;
mil that ilefendant iliil a.ssign to said 15. and II.,
iiiil that they paid to plaintitl' 7s. (id. in the
ilieareil,
Sl'Ut
cim-
atiou •. -V"- --^ , >^1. ivuiouatoili
:^t of /^'""""tJu non-V^v> '"^"^ "^
t he an
■Aw\ a sv
the V'""^^^''' ,'V.'uiu(.t'l'ecouvLitoAp
,, urn of money '^'^^t,,vaM;"'
K**"''^'\ithV ucV.ag:ua.tae.
lorney: i\^ttM.,audamc.n"V;>.
,• tho :i'i"^«|
if I
,u it sig>\"'
I hy
|,V defendant,
' -^ ..u" — Held,
weeK ■
id
ro/;is''"'- ^'
Itriiy
Mtinro,
14 Q
1 -vs ill V'^>
ii„ evulcucc
.Si//,s,U'.M>.l>.-l'''
1?. uit;,i>.'^«J
Uit f"»- :''"'fn.rthe accruing
lahouv, it IS sum
(it tni
„ defendant \
Lunt, the vlai
\ViiiM-(! the plaintiir hroiixht an action of deht
on the eonnnon counts against the Huron his-
trict t'oinieil for eonipensation awardeil to iiini
hy a jury for niiikiiig a road across liis piemiscM
hefore the formation of the Huron lijslriit, and
while tho land formeil part of the l>istriet of
London, and the llitroM Ihstriet had, after its
erection, assumed the pavnieiit of the sum
awarded tho Court held, tliat the action would
not lie against the Huron histriet ( 'ouucil at all ;
hut even if the coiuicil h.iil licen lesponsihle, tlu)
declaration should havi' heeu speci.d. MrKu v.
'/'Ill lliiriin /y,sli-ii-l Ciiiiiii-'il, 1 (^1. II. ,•<(>«.
When there is a special count ami eomimui
count in the declaration, tlie ett'ect of the special
count lieingliad when general damages have lieeii
assessed, is, that there must he a Venire de novo,
unless it can lie said that the verdict was given
wholly upon evidence applieahlc to the coininou
count alone, and not to the itpueinl count.
Ihiiliji- V. Mii'ir, 7 (i. 15. rr.'ll.
Where the defendant ai'rced that if the plain-
till' would give n|( his daiiu against A. H. for
Ctt!, he would [lay iiim t'!!.') out of the proceeds
of a certain raft w hen it woidd arrive at <^>uehec :
Held, that the plaintill' eipiilcl sue the defen-
dant on such agreement upon liie couimoii counts,
and without produ'ing proof ef the agreement in
Miuid, Mho accepted and received the same in i writing. Mclhnwld v. (!litK.-<, S (.t. l!. •J4.').
and claims, itc.
heginning of the
:iUl satislaction of all dehts
.liiiiiust defendant from the
world to the day iie.\t hefcu'c the date of .saul
liukiiture, with an averment that the cau.ses of
ictiouinthe declaration mentioned accrued in re-
sjiect of debts, ilc, in said indenture and schedule
mentioned, ami hefore the day next hefore the
ilatf of said indenture ; to which the iilaintitl'
niilied, hy traver.siiig the averment that the
causes of action aeerneil in respect of dehts in
Slid indenture and schedule nieutioned, ite. : —
Held, liail, on demurrer, on the ground that the
iilaiiititl' sliould have new assigned. Hull v.
/)ww, 4 0. P. 351.
A count for
money at the rate of thirtj' per cent, jier an-
num ;— Helil, good as a common count, for that
tbe rate stated was wholly unimportant, as
niiiild he the price of goods sold if alleged.
Hhiikkij V. Eih'ftvn, '12 Q. li. 348.
Ahydawof the plaintilTs provided that any
iiioiubur neglecting to pay his monthly dues
In an action on tho eonnnon counts for money
paiil, money lent, goocls s(dd, iVc, the plea of
payment admits only that something not ascer-
tained is due in resjiect of the causes of action
sueil upon, leaving plaintitl' to jirove the precise
aiuount. Miilliiiltaiiil v. Muiiii/, ~ L. .1 . 3;J.'l. —
(.;. C — -Mackenzie.
The common counts cannot be used where the
claim is by virtue of a deed. Thr (.'itr/niriifioii
lit' thf Ciiinilii iif Willi iriiftli V. Till' ('orjiiiration
(if tin: ('ill/ (';/' Jliiiiiillon, M i). H. ,")8.">.
In an action on the common counts the]deaof
uuiKiuam indehitatus and payment are distribu-
;i,f,.....af f,,,. +l,o f,„.i .^ .,,..,.,, . „fl tive, and a verdict may be entered on these issues
interest tor tlie torboaiance ot ,. ' , , „ , , , ■' , r ^i j.
tor the deteudant, tor so luuch or the anumnt
sued for as the })laintill' fails to recover. Such a
verdict may not be proper in every ea.se. In
this case tho substantial ijuestion at the trial was
the plaintitl's' right to a stiiu of .'*410, which the
jury found for defendants, hut the plaintitl's had
a verdict for a. sum of ."^'-'O, which defendants had
never disputed, and h.ad, as they asserted, nnin-
iiuld he fined a specitieil sum per share each ; tentionally omitted to pay. Under these
causes ..f.aetumi^^^^^^^,^,^,,,t
ana certain ot>- ^^ „j,„„
at the lf"5^*^Vna "- iuok,
a 8um of t^O^;^aant to I'lf 4
defendant byJuB^^'--^^,,yt«
j month " until the end of one year, when the
I siiaie or shares in default shall he declared for-
ititod to the society," &.c. : — HeM, that such
Itiuescould not be recovered on a common count,
[ktthat the declaration should set out the by-
llaw. (iltaica Union Bu'Miiiij Snckti) \. Srutt, 24
II B. .•?41.
VI. MiSCELL.VNEOlS CASES.
Though a note declared on vary from the
fcltadiugs, it is still evidence under the comuion
V'liiits. Hathaway v. Makohn, Tay. 182.
A note made in Albany, U. S., may be de-
[tlared on under the common counts, under the
ptatiiteof Anne. Kirk v. Tannaliill, Tay. 448.
A plaintiff who fails on the special counts of
pis declaration will not be iillowed afterwards
resort to common counts. Hohlai v. Mc-
hnbj, 5 0. S. 99.
stances the verdict was entered in defendants'
favour for the residue. Hiqn: ct al. v. iStewart
I'l al., 35 Q. B. 89.
MONEY HAD AND IIECEIVED-
LENT-MUNEY PAID.
Si'c MoNEV Counts.
-MONEY
MONEY PAID INTO COURT.
See I'.VV.MEN T.
MONOPOLY.
(See CoxTKAcr.
a^yr.
IL
muut(;a(JK.
MoitniAtii:.
1. I'AliriKH.
I. t'lir/i'iritlhun-Sn' Coin'oiiATtovs.
'_'. lll/dllli .Vic InKANT.
•\. IllHilllilil llf Mtlll'JiliJiir - Sir LiNATIC.
4. MiiiTiiif W'liiiii II Si, Hl'SllANli \ND
Win;.
.'). /'iii/inri .Vm rAi:i\KH.-<llll'.
11. ('lis 111 AITS OK .MdlirilAilK.
I. Funii nl\ •.'•.'its.
(a) I'lii/i r fill' Sliiiii FiiiUiiH Ah — Hi'f
l>i:i;i).
'2. .Uiirli/iiijr (</• I'lirchd'^v,
(11) Unii nilhi, '.'-Jll.
(Il) Aliinliili' CiiliVri/iliK'i irilll (.'oiltl'ttct
to /{i niiiiri/ur l{i jiiiri/iirir, '2'A0'2,
(o) I'di'ii/ Kriikiici' III L'.i/tldiii DiiiIh
iiliHoliilr in form Inil inti ihIkI
oiihjiiM Sixiiri/i/ -Sir KviiiKM'E.
3. 0//in- CaxLH, 'iHO:!.
4. h'j<'Ci(/i<iii (iiii/ /hliriry— Sir \)r.Ei>.
5. /)rMrr'i/iHiiil llf Ldilil in - Srr pKKD.
<i. Friiiiiliilrnt - Srr FiiAiix i.KS r Cox-
VKVANCK.S.
7. Of Fi.iiiirrn — Sk- FiXTl'REX.
8. ()j'<i'ui>i/-i mill <'liiitlilH--Srr Rim..-* of
SaI.K AM) CllAI'IKI, MlllMliAdKS.
y. (>/s/ii/M-Sir siiii'.
III. Kinri'Aiti.i; MoKTiiAdKs, 'J.'tO.').
IV. i{K<il.sl'l{ATI(I.V oV—Srr liK(ilsll!V LawS.
\'. I'aymknt, Sahskactiiin, DiMrnARUK, and
AlKJUiKlt.
1. U'/mt CoitMtltiilrx Pa!/wriit,'230C).
'2. Prrnnin/tliiiii nail Prunf uf' Piiijnirnt,
L'.SOT.
3. l'rr.iiniiji/iiin uf h'l runrci/niicr — .SVc Evi«
1>KN( K.
4. ExecntDrfi mul Aihniiii-ilriitnr.i, 230S.
5. Atlornrii <„• Aijrnt, 2m'J.
(i. Conrri/Kiirrii/MDr/ijiijir'^ /ii/rir-it, '2M0.
7. /feli-(M' llf Part of thr PrrniiivK, 2,310.
8. Sll/rofllir Eilliifijif lirilriiijitiiii,, 2.311.
9. Mrrijri- if Morlijiiijr Drilt, 2312.
10. Mcnjrr of Sim/i/r Contriirf Di IjIs in
Jloiiijilijr.—Srr MERdEK.
11. Crrtijirit/r of iJisrlianjr, 2315.
12. OlhrrCas.'.-i, 2317.
13. AjijiroprlKlion if J'lii/nuilt.i — Si'r. I'AY-
MKNT.
VI. Rights anh Liahilitik.s of the Partie.s
AND THOSE fl.AI.MINd UNDER THEM.
1. J'oKurxnion if thr Pmitrrtij, 2320.
2. Hiijhtsof Wiiloti' of Mortijaijor, '2'i'2\.
(a) JJoivrf — Src Dower.
3. Ifiijhtti of' Mvrlijiiijor to Maintain Ac-
tioiw, 2321.
4. J}iij/iti (f Mortijaijrc to Maintain
Actliinit, 2322.
5. Lenxcs l»j MtTtyagor, 2323.
(J. lilijhtu and Li(ilillltii',s of Pnri:ha.tflr8
of the Eiptiti/ of RtdvMptlon, 2325.
93t
7. /iii-orer;/ III' t/'i .Wort'jiojr Munnj.
(ft) Whrn an Aftlon wilt Lii, '2',Vi^,
(I.) liiijht to full in till ,rl,„l,. ,
ihfiiiiti, 2;i3().
((•) I nil r. it, 2;t:i2.
(il) (tlhrr CiL^rM, 23;{.'l.
(u) Jtrl-OI'iri/ III) Foi'll'llisni'r II,
Slllr Srr Jlp. 23(!!l, 23N!I.
(f ) Ji'l'jllt if IHnli'i MS Srr 1 )|s 1 11 K-
8. d\ijririni nl to I'l li iiai in I'lirHnn.^, 2.'t.'i
!>. S/irriatl 'orrnanlM anil tJoniUliunit, '2X\
10. L'oni/itiiini an In .Wilier or Jknuh
lirforr Kjrrlinint Sn M.IKi IMEN
11. Morlijaijrr in I'limrKsiun.
(ii) LiiiliiHtii lo Airiii'nl for I!, I
mill PnftM, 2.'n(i.
(b) AUon-anrr fur I inhror< nn i„
2338.
12. Aji/iliraliiin if ln.*iiriiHi'i Muni i/m.
(u) (Irnrralhj, 2:tf0.
(1)) Inmirmiri lii/ ,,,■ f,,,- Jfurl'i
ilrr—liiilhl of Sltliroijaliun ■
Srr InslkaXCE
(c) Ejlirt if Mnrhiai/r iuAroiilii
Polirii - Sir INSIIIANCK.
1.3. liiilhl if Murliimjir In J'rrrrnt SiC
rill/ lirinij l>imininliiil, 2.342.
14. Othrr /iiijlili iinil Linlnliliin of .\[,,i
ijaiiri, 2343.
15. Ait inl'irli il I'll ln»nlri n'l/ Prnn iilliiiis-
Srr HanKKI'I'ICV ASIi 1 SS()|,V1;Ni
l(j. Corrnanin I'or Tlllr—Sir CdvknaN'
for Title.
17. Stdf of Ei/nitii of I!, lU ni/iliun mul
E.rrrnlion — Srr KxEl I'TION,
18. Barrrd Inj Tiinr — Srr I.IMITA
OF AfTHiNs ASH Sirrs.
19. SitIr nnd. r Poii-i r<f Sati — S'cp, '_':
20. Efrrt if Mortijiiijrr PiirchilniniJ I.
fir Tlt.rrii — Sir ASSESSMKNT
Taxk.s.
VII. AsSUiNMENT AMI TliANSFER.
1. Eorin of AiiniijiiiHi nl, 2343.
2. C'ormantK loi AiMii/nur, 2344.
3. Jfiilhl-i (f thr inirtii .< afti r Anfiiiiinu
yoikr, 2345.
VIII. Sy.VERAL MOKTOAOES.
1. I'lioVilll.
(a) (Irnrrallii, 2348.
(b) .'(.1 AJ'rrlid III/ PaifiMrn —
Reoistry Laws.
2. Tad-inii, 2.349.
3. 2far-ihallinij Sirnrilkti, 2350.
4. Other ('axes, 2351.
IX. .Sale Under Powkk of Salk.
1. Validlti/ of the Sale, 2352.
2. Other Canes, 2354.
X. Redemption of MoRr()A(jE.s.
1. Eijitlfi/ of' Redcnqitloii — Ili Inci'If
dr., 2355.
rii
22'jr)
/„ Cill lit ''" "'''"''•' ""
.1, 'i-M'i-
,..•,/ '<!/ /■'"<■"•'"•■""•' '""'
"•' . ' .)'ji»l ''HS'.t
„■/.■,/,,.... ii' /'<"■''■""•'• -•^•^''
,„ /„ Sofur ,.r /)',."...'
., /'ill- /lll/il'"!"' "I"''~'
„„,^-/„,.»,vnM'. .u^'";/''•
"^••""!'•^;:.•^'••^^■■'■':"■
ft,;,/^„. 1N.VHANCK.
„.;,..; /^'■'"""■'''"'•-"- ... ,
,,-r.iw.
li.VNKlU'»'H\ AM'
.KES.
|,.,^.r.vNu'l'U.VNSt-Kll.
I MoUTtiAllK''-
* ' UE.n"siKV L.VXVS.
1,- ('((.iM, 2351.
VUEH roWFl' ..F SAl-E.
L„j of the Sale, 2^02.
\r Cases 2354.
IVTIONOVMOKTU.VOE^*.
Ui, 2355. '
2297
MOKTdAf.'K.
2298
2. 117.0 EnHlUil hi li,,Uv,n, aflST.
3. TiniiK III' 1,'iiliiiiiition — AiiiuuiU I'ny-
iiiilr, 'i;;i,KS.
4. /lull' Hnrrii/ or l.itM,
(a) l.iii»« of Thiir, 2.ir>!».
(1)) (\,mliu-t of Piirtii n, 23(13.
(c) Soh loj Mui-tijiuji;', 'I'MW.
5. Hills to II,, In HI.
(a) l'nirHr,; '2:\ii\
(h) ri>,ii!!ii;i, •JMim.
(c) 1',1,-liis, '.';»(!(),
(il) VoMts, '_»3(>8.
*■• Sliijiiii'i l'i;ii;iiViii,ji< in Eji ft iin itl hi/
Morl'l,!;!',!! —Sir Kj Ei "r.MKNT.
\r. M)iiK( i.iisriiK.
I. )\'/„,i/kn;,il,iiiiiliit ll7(o.-e .Vh(7, 2300.
•J. /;;//.
(a) r-riii of, 2372.
())) Aiiiiiiiliiiiiii,'l'X'i'2.
(l') .Sirrirf — Sir I'l.KAniM; is
(il) Diinii^Mlinj, 2373.
3. PtirHi-H.
(a) AskIijiii:ih, 2373.
(li) /i(iid-rii/>/ Miii'i'jiiijor, 237.3.
(»;) i'l-iiliturs, 2373.
(d) Mor/iiiiijiis, 2374.
(e) J'niifipiil itiiil Siii'ihi, 2374.
(f ) /iV(»/ "//'/ 1'r.iinuil ItittriMi'iitci'
tli'i'M, 2374.
(g) Triinli'is mill ''I'shii-^ ijin: Trust,
2.37.').
(h) IliVs 2.37C).
(i) Utior I'liiHis, 2.37(i.
(j) I'ntfliri' ill Aili/iiiij Piiiiir^,
2.377.
4 Di'crir.
(a) Fo/'//( (»/■, 2.377.
(b) Fori'doHiin- or Snli', 2378.
(c) Ameiiiliiii'iil of, 2.379.
(d) Silliiiij Asiih; 2.370.
(e) (>///«(• C((.sc.<, 2.379.
5. iw«f'/ Order and Dfcrce.
(a) Priiifirr on A/ipliration for,
2380.
(1)) .S'cM/w;/ ^lx»/f', 23S2,
0. Furi'closnri' oftrr Ahortii-i' Sah', 2383.
". Ujnninij Forvchmiri', 2383.
8. Order for Deliveri/ of Possession, 2385.
9. ro.'f^x, 2386.
10. Other Cosi-s, 2388.
II. Bji and Aijoiiist Iiifiints—SeeJsvwTti.
12. //// «»'^ Aijninsf Husband and Wife —
See HlLSBAND AND WllE.
XII. Sale.
1. When il u-iU he Directed, 2389.
2. Parties to the Bill, 2390.
3. Decree, 2390.
4. Final Order for Sale, 2390.
5. Other Cases, 2391.
II. Coiidiiet of Soil' -Sie H\\.r. DV \.\s\t liV
OlIKKIl (IF TIIK ('(HUT.
.Mil. I'lKM'KKinMiH IS MiiKitiAuE .Srns IN
Kt^i ^l^.
1. Tidinij Aciinnils, 23!t2.
2. Order for Piniimiil, 2;Ut.").
3. Dlsrhiliii, r, 23'.i7,
4. y;. ririo; 23!I7.
5. Priirliei, 2.'t!tS.
<i. Piii/iiii lit if Miini'ii out of i'oiirt on Siilr
of Mniiijiiiiiil Prmiisis- Set 1'av-
7. ttlhi r Vii.-is, o-H)!.
8. AiiiieiilfriiinMiiHi.r S,, I'lsAi i iri; IN
Kyiirv.
XIV. Mi,-)<Ei.i.ANEur-i t'x^Ks, 240.3.
-W. MoHTilAdEH III IJril.lilMi SiHll'.Tir.S—
.v. < llni.Disc SiHiKiiiis.
\\'\. .MnlllilAill'.H <iK ( 'llAI"l'i:i,S-^,S'(c Kll.l.s
(IE Sai.i; ASi>( 'ii A in; I, .M(iiti'iA(iKn.
.Wll. Or Ki.Miiir.s -.Sm h'lxiria-.:-".
XN'III. MdifKiAdEH oi" Siiii's— .V.r Ships.
XIX. Mi>u'i'(JA(ir..s lAKrs as ('i.i.i.vi'EiiAi.
Si;cn!ii\ .
1. OiHinilhl Sn ('(ll.l.\li;i!AL SECMtlTV.
2. Ill/ Binds Sir Hanks.
XX. I'A^niAiii.K .Irnisniciiiis ok Cointv
t'oruTs -.Vi . ('(HMv ('oritrs.
XXI. 1!e( Tirvisi; AMI N'AiiviNd MoiiT-
(lAdEs -.Vir Deed.
XXII. ItKilir (IE DiiWEl! (IN .M(il!li:A(iEl>
ritdl'EUl'V Si'i- l>i)\VEH.
XXTII. KlKECT in- OrislANIiINi; M(rt;niA(;ES
(IN I'l.AiNTiEKs' Tune in Ivieit-
M V.Si -Sic K,I E( TMEN r.
XXIV. DdlSMANT i;(M'ITrES AS AkKE(TIX((
MoKTdAdES— .*>■<' DdH.MANT VaiVI-
TIE.S.
XXV. Eekeit (IE MxEciTidNs — S'm ExniT-
TIdN.
XXVI. FliAUDUI.ENT MdliTilAdES -■SVt FltArD-
l'LENT C'dnvevances.
XXVII. I'dSSF.SSIdN IIY !Mdl!TdAd(il{ (IH MdHT-
(lAdEE .SV. Ll.MlTATIIIN (IE ACTIONS
AND .Srrrs.
XXVIIl. Mistake IN -.Vic Mistake.
II. CONTRACI'S OK MoKTd.WlE.
I. Form oj.
In an instnuuent under seal, the words "And
for securing, ctu., the said P. 1'. doth hereby
specially liind, oblige, mortgage and hyiiothecate
the said piece or parcel of land," &c., pass no
interest ; they only shew an intention to create
a charge or lien. Doe d, lluss v. Papist, 8 Q. B.
574.
A deed poll to secure a sum of money, in
which the words were " mortgage all that cer-
tain parcel of land, &c., to have and to hold the
■pflpp
WBP
i i
2299
MORTGAGE.
23
aforesaid land unto the said .T. R., his heirs, i
executors, administrators, and assigns :" — Held, !
sutHoient to pass the riglit of possession to the
grantee. Vund<iiiiilir\.Vandi^lht(kr, 14C. P. 129.
A trnder ))einj,' indebted to a wholesale mer-
chant for goods supplied, executed a mortgage
in favour of the creditor, securing i;,S,000, and
the creditor h wing entered into a new partner-
ship, til lirni continued to make farther ad-
vances fov <''V(.'-nl years, <li ling which time the
del)tor ni„.li; .ievend piyments, nmch more than
wouhl liave heeu siithcicnt to pay otf his indebt-
edness ; and the firm in rendering their accounts
to the niortiiagor did not bring in tlie old debt :
— Ifehl, that these circumstances were sufficient
to shew that the security was intended to cover
a floating l);danee. j''ii.i.^<ll v. Dani/, 7 Chy. 13.
In a suit by a vendor for specific performance,
wh''re the vendor is ordered to execute a deed,
and the vcn<lee a mortgage ; Seinblc, that it
would be improper to insert a power of sale in
such mortgage ; and, Quare, if the deed merely
contains ijualitied covenants whether the mort-
gage should contain any others. McKinj v. A'c-'/,
1 Chy. Chamb. 208.— Spragge.
Where a mortgage has been settled by a mas-
ter, and the party ordered to execute it objects
to its form, it is not a proper mode of raising such
objections to refuse to execute such mortgage,
and to execute a mortgage dillering from the one
settled. Ih.
An incorporated company having executed ;'
bond, which, thougli it contained no direct
woi'ds of charge, was evidently intended to give
a lien on the property of the company, it was
held tliat the liei; was sutHciently created. Tin-
Toini (if Diiiiiliis y. Th< DcxjtinUit.t daial Co.,
17 Chy. -27.
See, Mall,H-h V. McKimn, 9C. P. 4(i7, p. 2.S.3o ;
Millir V. Slitl. 17 C. P. oo!), p. 230").
2. Morhjiiiic or Purcliase.
(a) Gencnilhj.
An agreement between defendant and one .'^.
recited that S. was the owner of the land in
iiiiestion, and had agreed to convey the same to
(lefendunt on payment of a certain sum on a day
named, and that in default defendant should
immediately cease to have anj' right to the land,
and S. after giving i. month's notice might sell,
and after deifucting the amount due and interest
pay to defendant any surplus. Defendant then
covenanted to pay said sum, and on payment
thereof S. covenanted to convey to him ; and S.
also covenanted, in the event of a sale, to pay
defendant any surplus. S. sold under the power,
and conveyed to the plaintitt' by deed, reciting
the sale, and that he (.S. ) was the owner in fee
of the land. The plaintiff', in ejectment, claimed
under this deed. Per McLean, . I., the convey-
ance to the j)laintiff was open to objeeticm as
being executed by (S. as owner in fee, while the
agreement, though it recited his ownership, con-
veyed no estate to S. from the defendant, but
was at most only a mortgage wii h power of sale.
Barkis V. Ikuxon, 21 Q. 15. 143.
A person in indigent circumstances being en-
titlect to a grant of laud from the crown, had
(jousulted a solicitor with a view of obtaining it.
In the course of their transactions the solici
wrote, " I think 1 can manage for you so itl
tiially that I canget your deed from governmc
I)robably through some assistance on my pai
The client having executed an assignment, as
alleged, by way of security to the solicitor, ,■
the patent for the lan<l having Ijcen issued,
solicitor set up the transaction as an ai)sol
purchase, in consecpience of whicli the wifi:
the plaintiff, .acting as his agent, took steps
assert her husl).an<rs claim, ami procured
assistance of her brother. After repeated ap
c.itions the solicitor agreed to reconvey ui
being paid €170, .asserted by him to be due. 'I
the lirother a<lvanced and took a conveyanci
the property, s.aid to l)e worth £800, in liis o
n.ame, and then alleged he had purchased fur
own benetit. Tlie coui't (Ksten, \. (.'., A\
declared the deed to the solicitor a nuirt'.'
only ; that his assignee li.ad in factac*-,ed as a,"
of the plaintiff', and could not jiurclusc fdr
own l)enetit ; and directed an encpiin, j , to i
tain points left in doul)t by the evidence bef
the court, and an cx.aniination of the soliciti
books, unless the purchaser would consent
re-convey niion receiving b.ack the amount [i
by him to the solicitor. J/cI/roi/ v. /f'tni.-i
Chy. oK).
The owner being indebted, couvcycil his la
to one M. for sufficient to pay off' his liabjUt
without any reference to the value of the [
perty, of which he remained in possession, ;
sold to third jiarties, subject "to a conveya
to the late l,ieutenant-(icner.al Murray, intciii
to operate as a mortgage. " It was proved t
the avowed oI)ject of M. was to relieve tlie ow
innn his embarrassments, aiul secure his lai
from seizure ; l)ut the same having [lassed lui
the will of M. to trustees, one of them ivlu
to allow .a redemption except under a decieenf
court. The court considered that the evidf
clearly established the conveyance to have iJ
given by way of security only, and that tliu \
dees had a right to redeem ; that the trustee I
not acted unreasonably ; and that one of the t|
tees being Ijeneticially interested in the estate
cestuis (pie trust were sufficiently represcutej
the suit. Kerr v. Miirraij, Chy. .'543.
In October, IS40, the holder of a bondl
the convey.ance to him of real estate a.ssi>f
over the s.ame to a creditor in payment ol
demand, the creditor paying at the same tii|
certain sum in cash, who tvi'o years after olita
possession of the property by ejectment ag:|
the debtor, who had in the interim lieen iil
ceipt of tiie rents. In December, IS.'v.f
debtor tiled his bill, stating the transactin
have been by way of mortgage only, and \\rA
to be allowed to redeem. Issues were
(piently directed iis to the (piestion of iiiurl
or ; o mortgage, and found in favoui- of the \
till'; after which, on further directions, a il|
for redemption was pronounceii in favoun
debtor, which on appeal was reversed, aiul
bill in the court below ordered to be disiiJ
with costs ; .and Semble, that such a (|Uestl
properly one of law, not of fact, ami imtl
.as fonns an issue to be tried by a jury.
V. Monro, 8 Chy. GO. S. C in court iieii
Chy. «G2;«Cliy. 385.
T. and B. being sureties for AV. for tlid
ment of certain moneys to the City of Tnl
obtained from him a mortgage, with a i)o\l
2301
MORTGAGE.
2302
. tr-aisactions the solicitdv
;i manage for yc" «" 'H'-'^--
muraecHromgovcnunrut,
TIC assistance on my i.art.
Bcntcil an assignment, as lu-
Bcurity to tlie solicitor ami
u.l liaviuy been issn-a tlit
trausactlon as an aosolute
uenee of which the vvite m
as his agent, took stei)^ tc,
s ehiini, ami pmciiro.l tlu-
.tl.er After repeated api'li
, agi-eed to re-eonvey nvm,
erteai.yhimtohe.lue. lhi>
e,l an.l took a ormvevanec (,l
;ohc^vo.•th ^«W,m 'ICh!'
..rclheluulimrehasecllo lu
''conrt (Hsten, \.t., -h^..)
to the solicitor a mortgage
,noeha.linfaetacteaa.ag.ut
ri could not purchA-' tor his
.Ureeted an enHniv: ' ■ to cc r
a.ml.t hv the evidence he .,;
,<, indel.te.1, conveyed his l;md.
feionttopayotlus Ka^U>.>
.rcnco to the value ot tlic pi-
he remained in possession, au.l
vties'suhject "to a convcyaiKV
e„an;-Oeneraniurray,nitc...W
..(•tr.ure " It was proved tlut
:"tSr^was to relieve the owiu.
ivass neiits, and secure h.« la.uls
r\*'"'xc;.im'vadecreeofthc
t^Sesutticie.itlyreprescut.lin
1840 the holder of a ho.id t..r
to iiim of rc-'al estate assiguol
i% a creditor in payment otlu.
Pltor paying at IJ...^^,,SJ;
Sriffi^Se'Uiniiihe^ni.
^^'Sl sl^timr^'ti^nlS,.'.
.e?atS:o,uestionof..io.t,ag.
knd^eniDlt. Y''\ . .^^„\ not suolil
S «i^ ^-^^^'^ ^^'"^* '*"
Chv. 383. , a
sale, l>y way of iuilomnity. Afterwanls, having |
heeii ohliged to pay certain money to the city, 1
and being also lial)le to pay other sums on his ,
account, they obtained fnmi him an abaoliite
deed for the nominal coiisi<leration of tlOOO, but \
in fact tliere was no inoiiej^ paid, and no ac- |
counting hetween tlio parties. Sul)se(iuently the |
owner of a prior mortgage instituted proceedings
to foreclose, and on an application to extend the ,
time for payment, T. made alhdavit that the !
application was made as well on behalf of the \
mortgagor as on behalf of liimself and 15. ; and '
it was also shewn that when the deed was signed
T. stated that W. would retain his right to re- i
deem, the ol)jeet of the conveyance being merely ■
to enablu T. and B. to raise money to pay otf
the mortg.agee, who was [)ressiiig, and other de-
mands. On a bill tileil by W. against B. and
the representatives of 'I', (who had died in the ]
meantime), alleging the transaction to liave been '
liy way of security only, and praying to bo I
allowed to redeem a decree was made as prayed,
which on appeal was allirmed, notwitlistanding
the surviving grantee in the deed, 15., swore]
that the conveyaijce had been made by \V. for
the purpose of absolutely releasing liis interest
in the lands conveyed (Draper, C. J., diss.).
Ikrminl v. Wnlh'r, 2 K. & A. 121.
A married woman, the owner of a leasehold
interest, with a right of purchase, joined with
lier husband in a conveyance thereof to a pur-
chaser. The vendors afterwards tile<l a bill to
declare the conveyance to have been by way of
security only, and that the plaiutitl's were en-
titkd to redeem the same : — Hehl, attirming the
decree of the court lielow, that there was not
siltftcient to cut down the absolute conveyance
tn a mortgage interest. Saiiii>.suii v. MrAiihiir,
SCiiy. 72.
A. held a bond for the conveyance of property,
ami assigned it abs(dut"'y to 15., but for the pur-
jMse of security only. H. sold the property to
('., and V. sold to others, (i. before his purchase
had no notice tiiat the bond to H. was a securitj'
merely. A. having become l)aiikinijit his assignee
apphed to redeem, and was held entitled, in the
aliseiice of any evidence that V. was a purchas-r
for value ; but tlie court directed the cause to
stand over, with liberty to C to give such evi-
dence upon payment of costs, unless the plainiilf
should ilcsire also to give evidence, in which case
the cause was to stand over without costs.
Chtmj V. Morton, 8 Chy. 402.
On the 1 (ith .Tanuary, 1831, an absolute con
veyance wiis made l»y A., in fee, to secure al, iii,
the grantor remaining in possession until tUc
snring of 1841. (»n the tirstof March, 1841. t'lc
alleged mortgagee wrote to a sub8e(iuent more-
gagee on the same property, claiming £!>,'5 as due
irom A., and on the 7th and 21st of June, of the
same year, he again wrote to the same incum-
brancer, alleging that he had originally ad vanced
alwut too, which, with interest, then amounted
to t'i)0 or tlOO, and suggesting that the land
should he s(dd for the benetit of A., against whom
lie kept an account in his books of principal and
interest in respect of the alleged debt up to the
ht of January, 185(). The subseciuei'v incum-
brai • r purchased the eipiity of retiempti(ni.
Upon a bill tiled by such mesne incumbrancer in
Felimary. ISGl, to redeei i the premises against
the reprcsoiitativea of the ullcgca mortgagee, the
court — Held, that the letters took the case out
of the Statute of Frauds ; and that the plaintiff
was not barred by tlie Statute of Limitations.
MuUorh V. PIhIu'ij, 9 Ciij-. .^oO.
Tlie plaintiffs executed an absolute assi nment
of their interest in real estate, and the assignee
gave his note for t.'iOO, which he alleged to be
the consideration, payable in two years, subject
to a comlition expressed in the note, that the
maker inight ret lin thereout any advances he
1 should in the meantiiiie make to the assignors.
No ciiange of iKissessiim within the two^years
was intended, and none took [ilaee. The assignee
; alleged that the transaction was a sale to him
with a right to the assigniu's to re i.iirchase by
re-paying any advances he should make within
two years ; but no evi<h'iice of this being given,
■ the court held that the transaction must be
1 treated as a mortgage. Fulloii v. Kdiinii, 12
I Chy. .388.
A conveyance absolute in form, but intended
as a security, was made by the owner of real
[ estate. The sum secured was paid, but no re-
conveyance executed. The owner, however, was
i always permitted to deal with the estate as his
i own, and mortgaged it with the knowledge of
I the person holding the legal title, who, after
I the death of the mortgagor, brought ejectment.
i claiming under the ab.soluce conveyance. The
I court restrained the action, and ordered the
plaintitl" therein to pay the costs in this courc.
Cdi/lfi/ V. McDoiuthl, 14 Chy. r)40.
Where a deed was i.bsohito in form, and the
alleged ccnisideratiou was, in part, pvomissory
' notes theretofore held by the grantee against the
grantor, the fact of those notes being left with
; the grantee, is not alone sutlicient to prove that
] the tleed was intended as a mortgage. Jfiali ;/
j V. Dunidx, 14 Chy iWYi.
' In a suit to declare a deed absolute in form to
be a mortgage, and to restrain an action of eject-
ment against the plaintitl', it appeared that at
the date of the commenceineiit of the action the
plaintilf was in arrear for paymciits of interest to
the ilefendant upon the agreement entered into
between them when the deed was given : — Held,
that the plaintiff was not entitled to six months
for payment of the arrears ami costs, /ktniyti
V. Frdiki; 21 Chy. 191.
I See Aitrhl-on v. Coomh^, (i Chy. (i4;5, p. 2.304 ;
UlaM\. F-'rkl'to,K 10 Chy. 470,' p. 2.3t)7 ; Muni:
V. Ki/''\ V "b'.-. ■■)37, p. 230."); Mourr v. Ifoli-
".) 14 V r<\ 70,5, p. 23(i7 ; Nonfli v. Liuuli/, 19
^'Uy. 243, p. 23(14.
[\y
A iMilnlf Conni/Knri' n-illi Contmrt to
rii/ or I'</)iirch(iii-.
A. liaving purchased lanil, and paid several in-
sl ilnients, but received no deed, assigned his
-ght to R , taking a bond from liiin tint if he
should obtain the deed, on the payment by A. to
hiui of £100, in two years, he wouhl coiiv.'y to
A. : — Held, "u ejectment by }'., th.' two tears
having expired, that A. cnilil not treat t'lo bond
as a nuu'tgage, and redeem andei ilie act. Do(
d. S/iiiiinon ".'. J{ ■. 5 O. S. 4ti4.
A lessee of the crow., bf n g in i rr' ar i-v rent,
assigned his interest x au' dor, caking a Ixmd
to re-coiivey one-lnii '•Jiereif, m pa 'uientof half
2303
MORTGAGE.
m^
the amount advanced, within a, year. After the
j-ear the assignee refused to convey, alleging tiiat
the transaction was a conditional sale. Upon a
bill tiled to redeem, the court heltl tliat the tran-
saction was prima facie one of mortgage ; am"
the part}' alleging it to !)■_ a sale having faile<l to
prove it so, a decree was made for redemption.
BoMwkk v. Phmip.-<, fi Chy. 4-27.
When an agreement not luider seal was entered
into by a mortgagee, who obtained from the
mortgagor a deed of certain property, whereby
the mortgagor was allowed to retain possession
of a i)ortion of the property, and the mortgagee
the other portion until he was paid, such agree-
ment liaving ))een destroyed by tlie mortgagee,
and ejectment brought on the deed, the court
restrained the mortgagee from enforcing his legal
right. Iftirrin v. Meyers, 7 L. J. 24,3. — Chy.
On application for a loan upon real estate, the
party applied to refused to lenil, but offered to
purchase the laud, which proposal the owner re-
fused. AlH>ut two weeks after, the owner con-
sented to sell for £400, provided the purchaser
would give a bond to re-convey on payment of
t".512 at the end of two years, and a <leed and
bond M'ere executed acconlingly. When the
time for payment was api)roaching, the pur-
chaser assented to an e.vtension of the time <m
certain terms, which were not finally carried
out. Afterwards the purchaser sued the vendor
upon his covenant fov good title, and usury
was pleadeil, which the verilict negatived : —
Held, that the transaction was one of sale, with
a right to re-purchase, and not of mortgage.
ntilkn V. lieuirkk, S Chy. 342. But
On a re-hearing, the deed was declared to
have been made as security only, the bond to re-
convej- containing an undertaking l)y the vendor
to pay tlic stipulated amiuint, and it appearing
that the value of the propeity greatly exceeded
the sum jjaid for the alleged purchase thereof.
S. C. 9 Chy. 202.
Where there was a conveyance of land upon
an advance of money, and a bond given by the
lender to re-convej' at tlie end of a year upon pay-
ment of the sum advanced, and an additional
sum calculated upon the value of the money for
that time, tiie transaction was lield a mortgage,
iiotwithstaiiding the instrument expressed it a
sale and purchase. Fink v. I'uttirniin, 8 Chy.
417.
Certain trustees conveyed to \. and took back
from him a covenant to erect buildings on the
property to the value of t'2,000, or in default
that he wouM re-convey : — Helil, to be a mort-
gage for €2,000, and that sul)se4uent purchasers
and incum))rancers were entitled to redeem.
O'lMljl V. Wm,'^, 8 L. J. 135.— Chy.
In April, 1830, A., the owner of real estate,
owing B. .fl21, and unable to pay, procured two
sureties to join him in a l)on<l for tlie anumiit, and
to indemnify them conveyed several valuable lots
of land by a deed al)solute in form, taking back
a lioiul of defeasance. Ten days afterwards one
of the sureties delivered to B. a promissory note
of two otlier per.sons for about one-lialf the debt
and interest, and in May of the following year,
A. being still unable to pay, and his sureties
desiring to lie relieveil from liability, it was
arraiigeil between A. and B. that A. should con-
vey certain of the lands, which had been so
transferred to the sureties, to B., wliiili w^s ac
cordingly dtme by .in a))Solute deed, and the boiu
c:"»ncelled; B. at the time giving back this mciiKir
ivndumsigued by himself ; " Received of .\|i-. \
McDonelT lands as follows," (enumeratinc them
part being cultivated, the rest waste lands) " f,,
the sum of £120.58. ;" (this being the <iri'iiia
debt and interest) "Should he want the atuA^
property 1 should have no olijection to ('i\ inir i
back, if Mr. McDonell would pay me the abovi
sum, in three instalments, viz.," (setting <iut thi
several instalments,) "with interest fnun thi:
date." A. was then in possession and (icnnia
tion of the cultivated laiuls, and also in ijnsscs
sion of the wihl lands, and so eontiiuuil unti
1848, when B. brought ejectment for the ciilti
vated lands, and obtained possession in l(S4ii
About the same thiie (1849) other creditors ui A
had ol)tained judgment and executidii a^ains
him under which his interest ifi tliese lamls wa;
sold in 1850, and purchased by B. throu' li ai
agent. In the books of B. (for tlie yeailstil
entries were found charging A. with i'liturest oi
the ammmt from 1831 to 1849. B. iiuvir ^av(
credit f(n- tlie amount of the promissory note re
ceived by him, nor did he produce it (ir aeidini
for it in any way. In ISGO a bill was tiled liy A
claiming a right to redeem, and a dccrw' fui
rcdemiition was made. On appeal :-- -Held. |)ia
per and Bichards, ?..TJ., and Morrison, .]., (Uss.
atiirining tlie decree : 1. That, under the eireuiii
stances stated, the deed to B., t.gotlier "ith tin
memoran<luin signed by hiin, ojieratei; as :■ mort
g.ige security only ; 2. Diat the circuiistaiuc
appearing were sucli a- did not warrant t le c 'iiri
ill its discretion iu refusing redemption iiinle:
the provisions ot t'le 11th clause of tlie Ciiaiieer\
Act ; 3. Followi!<yMcCabe/\ Thompson, fiChy
175, that the security of B. having been eivateil
by deed absolute i.'i form, the right or interest
of A. therein w.'s not saleable by the slierif
under common 'aw pricess ; 4. Tliat the |i(
mant Equities Act did not ajiply ; .">. That
under the circu'ustauci s, the hipse of tweiit
years since the tin.i; ;ippointed for payment di
not bar A.'s right to redeem. Mrihnuihl
Mi-Dumll, 2 E. & A. 393. The decree lielow i
reported at / //. 399.
A mortgagee took a release of the e(|uity
redemption, and thereupon an agreeiiu iit wa
signed by both parties for the purchase nf tl
property by the grantor for a sum cxeoeiliii;,' .h
amount due on the mortgages, not givinu tli
grantor a mere option to purchase, but liiinlini
him to buy and pay the stipulated [irice : Hull
that the transaction was one of niurtM'i
Ilairlv V. M;/r,kiii, 12 Cliy. 230.
The distinction lietween a nnu'tgage am
absolute sale with a contemporaneous agiveiiieil
for repurchase ex|)lained ; and an absolute cm
veyauce held to be of the latter character latlii
than the former, on the weight of evideiioi
which was conflicting. A'ajtwii v, IIh-kk^
Chy. ()85.
In 1838, A. having a life-estate in eeita
land, his wife having the remainder in fee, .
being also owner in fee of property ailjninin
and executions against his lands at the .suit (if
and othere lieing in the sheriff's hands, A. ai
his wife agreed verbally with B. that H. sIkui
purchase at the sheriffs sale ; and that they i
would convey to B., wlio should re-sell to thi
Accordingly B. bought at the sale, and A. ail
>i?
2304 ■
ea, toB.,^v•llk■ll^vasac- ■
olute i\eot\, ami the liond ■
tri ving Iwi-'k tliis iin'iiior- ■
£ . " Received of -Mr. A. ■
iva/' (euumeratint; tliem, ■
le rest waste lauds) "for ■
(this being the (ivi-uial ■
iouh\ he want the ahove ■
no objection to givnig it |
wouUl pay me the a -nye |
its, viz.," (setting out the I
^'with interest troiu this |
in yossessioii and oeeuiia- I
lands, and also m l^'sse^*; I
i and so eontiimed until I
lit ejeetnieut for the eidti- 1
'vined i,osaessi..n m 1^4• .
( 1 849) other creditors ot A.
ent and exeeuti.m against
interest iti these lauds wivs
rchased by B. through an
R of B. (for the yeai \hW)
barging A. with interert on
31 to t84'.). B. never uave
,t of the vroinissory note re-
lid ho produce it or account
In 18(;0 a bill was tiled by A.
, vedecni, and a ^^^^^^ ^^
le Un avpeal -.-Held, Dia-
- T.T and Morrison, .l.,'bss.,
' 1 That, under the cnvuni-
'deedtoB.,t..^^'^l',e>-"iththe
, by bin., operated as;, uiort-
. o That the circun .stalu:e^■
l; a"' did not warrant t le cart
....fusiiiir redemption nniler
lleui^^nseoftlieChaiwery
, McCaber. Thompson, (.Ui>.
v-tyofB. having been create.
\7forin, the right or lutet
-^5::S"t«'ti:!'^-
iw pi -'cess . ^- . .,., ^
1,1. ri C'lo'- -■"'■ ,
[;.£',«""»■;--■■"' ■"
Wu natate in eei'tain
t«i„ti.».i..«n«''£''(,;,i„,u|
B., who shonia ic «Ui^^ ^^ ^^j
2305
MORTGAGE.
2306
his wife conveyed to B., but the ^'ife was not i
examined before magistrates until 1841. When'
this omission M-as supplied two bonds were
executed, one by B., for re-selling the property
to A. and -wife on payment of the money (the
amount of the executions), and the other by A.
and wife for payment of the money ; they
agreeing that on itefault they would give up pos
Where a mortgage was created by the deposit
of mortgages, aiicl the borrower signed a memo-
randum stating the sum loaned and times for
repayment, and agreeing to execute a writing to
enable the lender to transfer or control the
mortgages so depositeil : — Held, that this memo-
randum did not re(iuire registration, not being,
in the language of V. S. U. C. c. 8!), sec. 17, "a
should be retained by B. as rent. In 1842
bonds to the same (effect were exchanged,
naming a larger sum, in order to cover some
session, and that any intermediate payments deed, conveyance or assur.ance affecting lauds."
IfarrUon v. Anitnur, 11 Chy. .3().S.
A., the etpiitable owner of property, had it
, " , - ,.,„,, , ., 1 conveyed to his S(m, a minor, in trust for A.
turther advances which B. had meanwhile made ^^^,^^^^^_ j^ afterwards si-ned the son's name
^?^\'^- ■'^'"^ '"^'^ remained in possession until : ^,, .^ „,„,tgage of the pro,,ertv to a crc.litor, and
default, and were then ejected. After A. s ,^,^,^^^,^ ,,j °,,fc.„ ,,,^,,^^ ^^ ^^^^^^ ;_Held, that the
death Ins widow hied a bill to redeein, claimm- i„gtrunient, though vr.id at law, created a valid
that the parties were m effect mortgagors and < ^^ j,^ ^ ^j^ ^ DnmUtmm v. I-\l\', 11 Chy.
mortgagee. ^ ankonghnet, C, so held, and made i j^-., & » •' .v > j
■\ decree for redemption, but the decree was re- ; ' "' , , • ■, ■ . , , . ■,
versed in Aiipeal (Spragge, C. , diss.). Monk v. ! A 8ul)se(iuent lucumbraucer is entitled to .a sale
Kiih' 17 Chy 537 i upon tiie usual terms, where the luaintiff is an
' ' j'"^' • equitable mortgagee by deposit of title deeds, as
well !us \\\\c\\ the mortgage is by deed. K< rr v.
IMh;', 12 (,'hy. 204.
^ .• Clarke v. Litth', 5 Chy. 303, p. 23(54 ; Mc-
Caiiii v. Driiijixci/, (iCliy. 1(12, p. 320; Jfohcrtsuii
w Scuhic, 10 Chy. 557, p. 23()5.
3. Oilier C().sc.s'.
Under sec. 2 of 8 Vict. c. 45, all sales of real
;ind personal projierty made on a Sunday are
vuid. Lai v. Stall, (i Q. B. 50(i.
'lie, that mortgages would not be void.
.)u
real I
An etpiitablo mortgagee is after default enti-
tled to a receiver where the mortgaL'or is ia
possession, whether the security is scanty or not ;
and he need not make a jirior mortgagee who
has the legal estate a party to the suit. Aikiufi
V. niidii, 13 Chy. ()4G.
Where mortgages arc deposited as security for
advances, and the mortgagor subset |uently ac-
II ill V. L((i el al., 7 Q. B, 535. (juires the e(|uity of redemption, the depositee's
.u advance of money on the secuHty of ^'f^/'" *'''' l'*'"!'''''*^' ",^ ""* "'''jf''^'^ ^^V^^^ '""""'"*
e ;ite, the lender cannot bargain for 'the "f the mortgages. Jomxv. Jhink o> ipperCan-
puiehiise of the property at a specified sum in : " "' '"' ^"y* '"*■
case of ;li'fault in repaying the advance at the : The customer of a bank ercatuil a mortgage in
time stipulated. Falluii v. Keeiuai, 12 Chy. favour of it by deiiosit of title deeds, [n a suit
I to realize the security, the debtor sw(ue that the
! deposit had been made to secure certain future
I advances, all of which had been pai<l. The
I ofhcers of the bank, on the other hand, swore
that the security was reiiuired by the bank and
:)S8,
III. Eq .-ITABLE MoRTGAOES.
In ejectment ] laintiiV claimed under a sealed
instruiuent executeil in his favour by one M.,
mil witnessing that in consideration of prior in-
ioliteiliiess for professional services, and to secure
lilaintill' for future services of the same kind, and
ttthe sum of 1)25 already paiil and advanced by
'i.ilaiiitifl' to him, &c., h^ "1 'covenanted, granted
iml agreed that he TAoi:>d -t, ■ ' seised and pos-
sessed of the land ill .(ue ..' lU i tho use of plaiii-
titf, his heirs and -. sign.';. \.j \vn.y of jharge,
security and moi', ,... c (i \ the land , tor s id
iiKHieys and cos's; 'uv i ;n plaintiff's costs
Were tii.xed he M'l.s to ijv,
'iistnuuent as and Ijy \^ .;
ami security upon the land for the amount so to
1* ascertained, orM. wouh' ; andM. covenanted
I ihat he or his heirs wouhl, on demaml, execute
.ignoilai)d sutlicient niorl;ga,\'e in law, with bar
jifilnwer, i' necessary, a ml usual covenants, &c.
"^"iiilile, tl at full effect would i>e given to the
berty to hold the
oh;i ge, mortgage I
[jiven by the debtor to secure all his indebted-
ness, past as well iis future, and a inemoraiiduiu
indorsed, at the time of the deposit, on the en-
velope containing the deeds was to the same
effect. The cmirt, in the view that the deposit,
if made as alleged by the bank, was lawful,
while if made for the i)ur])ose stated by the
debtor it would have been illegal, decreed in
favour of the bank with costs. Royal Canadian
Hank V. Cnntnwr, 15 Chy. (527.
V. Payment— Satisf.utiox — DisciiARnE— and
^Ieroer.
1. ]YImI Ciinxtilnlen Paijnienl.
In this case, the defendant, the mortgagor,
being unable to jiay off plaintiff's mortgage, at
the suggestion of the plaintiff's attm-ney bor-
rtole instrument, and the .eal intent of the par- ''■'"f;^ the re.,u.red amount from the moneys o
1 ties carried out, by holding that it was to openite ^".other client m the attorney s lian.ls, with
IS a charge, security and inortgage in equity on ^^••'"^'' ^1'" 'attorney was to pay off the plainuft s
bougbt at tl
le sa
|i«a8toe.;:''ile him to.'iai.ituiuojectiueut. Miller M. mortgaged lot 11 to Y. for £50 ; he then
|v, Sif^ci ((/., 17 C. P 559. I also holding a lease renewable in perpetuity
145
2307
MORTGAGE.
230
of lot A. at a rcnta"' oi 04 per anuum. The
rent being in ai'iOivr, judgment was obtained
and execution issued by the lessor against
M. therefoie. Y. then agreed with M. to
pay this exei ntion, !M. to assign to him the lease
of lot A. : ■" nd further, it was agreed that if the
lossors " will give to tlie party of the first part
(1) a deed 'ii fee simple, or a lease perpetually
renewable at tlie present rent, ho, the party of
the first p irt, will discharge and release a mort-
giige.
l)eini; that above menticmed.
afterwards ol)tained a oonveyance from the les-
sors of lot A. ; Imt it did not appear that it was
made for the sum contemplated at the time of the
agreement between Y. and M. Y. aftenvards
pressed for payment of the mortgage debt, when
M. made excuses for delay, and did not rely on
the agreement as a bar to Y. 's claim. Y. having
1)rought ejectment on his mortgage, M.'s bill to
stay it, and to have the agreement and subse-
quent purchase by Y., construed into a s.itisfae-
tion of the mortgage debt, was dismissed with
costs. McKvnz'i' v. YhUtiiKj, II C"hy. 40().
A tenant in possession being mortgagee of the
property, and indebted to the mortgagor under
.an award in a sum exceeding the amount due
uniler tlie mortgage, a settlement •• effected,
wherebj' the mortgagor agreed to di; irge the
amount due under the .award, and a I; +.h<!
mortgagee .?I0() to go out of pos'ies.
though not distinctly shewn, yet the '"'. ^ ' .n-
stances induced the belief that the arrauf't' :
eniltraced a discharge of tlie mortgage debt, and
the court dismissed a bill of foreclosure iile<l by
the mortgagee several years afterwards. Fairy.
Tate, 13\'hy. KiO.
Where a purchiser of the equity of redemption
paid the amount found due to plaintiff, it was
held that this was a pajnnent by defendant, or
some one on his account, and the final or<ler of
foreclosure was set aside. Hold v. Coo/ici; 2
Chy. C'hand). !)0. — Spragge.
See Cfttiii'i-mi v. Kiio/,j>, 7 C P. r)02, p. 2.3.S0 ;
Kmipp V. Vameron, (5 Chy. 359, p. 23.31.
2. Pir.'iiiiiqtfidu and Proof of Paymvitt.
AVben the mortgagor is in possession, a mort-
gage may be presumed satisfied when twenty
years have elapsed frf)m the time of the payment
of the mortgage money. Doc d. McOriijor v.
Hawkc, and Doe d. MrUrcijur v. Crow, 5 (). S.
496. See, also, Doe d. Dunlop v. McXah, 5 (I.
B. 289.
Where there is no re-demise to the mortgagor
until defa'alt in payment of the mortg.age moneys,
and the land is vacant at the time of the execu-
tion of the mortgage, Semble, that the mortgjigee
being under such an instrument deemed in pos-
session of the land by operation of law, the pre-
8umi)tion of p.ayment of the mortgage moneys
after the lapse of twenty years does not arise,
even thougli the mortgagee h.as never made an
actual entry, nor received any payment on ac-
count of the mortg.age (A. Wilson, J., diss.) The
mere fact tliiit the mortgagee is barred by the
Statute of Limitations of liis remedy on the cove-
nant for the recovery of the money will not
establish a p.ayment, so as to re-convey the legal
title to the mortgagor. Mahar et iix. v. Franer
el al., 17 C. r. 408.
In a petition under the act for (piieting titli
a mortgage more than twenty years old ai>i)eare
on the registrar's abstract. A discharge of tii
did not appear to have been registered. Xdn
was produced, nor wiis any proof given of tl
mortgage ever having been discharged. It wi
stated on affidavit that nothing w.as itnown \
the mortgagees, and that no demand liud ovt
been made for the mortgage debt, thougli iiothiii
had lieeii paid, and that no acknowledgment ha
been given within twenty years or inoie ; -Heli
that evidence should l)e adduced of searcli f<
the mortgagees or their representatives : that
single ex parte affidavit that no payment or d(
mand had taken place wimld not l)ar claims (
mortgiigees who could be served with notice
but if they could not be found notice miglit 1
dispensed with after a great lapse of time, an
satisfaction presumed. /iV Conrli'dl, S L. J N
S. 50.— Chy. Cliamb.— Mowat
In a suit for the recovery of mortgage mfiiie\
the (jue.stion between the p.arties was-, whcthi
the mortgage money had Iteen paid ; lioth [lartit
offered evidence at the heiiring, and the emu
received the same and adjudged thereon witiioii
a reference. Bacon v. Shier, 1(! Chy. 485.
In 1859 a mortgage was tr.anaferred to secnr
tever.al notes ul the mortg.agee, one of whii
m;'s, about fourteen years afterwards, found i:
the hands of the assignee of the mortgagee, aiK
he conjohitly ^ ith M., who claimed to lie tii
titled to the note, tiled a liill to foreclose. Tli.
mortgagor and mortgagee both testiiied tiiat thf
thought, and had for many years l)eeii under th'
impression, that the whole claim under the as
sigiiment had lieen paid : that the plaintiff, ,M.
was not interested in this note, and that thi
same had, through oversight, not been dcHvoiui
up. The attorney who had acted for M. haviiij
sworn that this note was the one in whicli M
was interested, and that it had never l)een \v,\v\
the court, in view of tlie fact that the nmrtgai.'
and note were both found in the hands ot tlil
assignee, and th.at no demand during so maiij
years had been maile for th'iir discharge, |iril
nounced the usual decree in favour of plaiiititfj
Scatclierd v. Kic.lii, 21 Chy. 30. 1
4. Executor* and AdnuniMrotorx,
The C. S. U. C. c. 87, sec. 5, only authorizJ
executors to convey the legal estate on payiiKil
of the mortgage debt, not to a purcliaser tiiif
them. JInntcr v. Farr ct al., 23 (^». H,
liohinton v. Bi/er.% 9 Chy. 572.
One of two executors was indebted to tl|
estate on a mortgage given to their testator,
which fact his co-executor was aware, Imt
took no steps to compel payment ; and the inn!
gagor, as executor, executed a discharge of tl
mortg.age under the statute, and registeivil t|
same : — Held, that the co-executor was lialile
make good any loss occasioned to the istiil
thereby. McPhadden v. Bacon, 13 Chy. ,V,I1
Qmere, whether the discharge, to l)e valid, i
not require the signatures of both executors.
Under 31 Vict. c. 20, sec. 62, 0., one of seJ
ral executors can alone execute a valid iliscLarf
of a mortgage. A'c parte Jvlinmn, ti 1'. K. ii
—Chy. Chamb.— Blake.
I '''!■■
2308
2309
MORTGAGE.
2310
lie act for (luieting titlos
■venty ycari olil avin;;ivfc\
wt. A ilisclwrge of tlu^
. been registered. Noiil'
I any l)vt><>f given <>t tin.
been disflwrgeil. It ^v;^^^
it nothing was known ot
liat no ilemantl lia.l evoi
iuage aebt, though nothn,"
v'tnoacknowkagnienthaa
utv years or more : -UcUl,
be aiWuccd of se;"--^" <"'
■ir vein-cseutatives : that ;>
vit that no liaynient or a,
.e wouhl not bar cianns o>
],\ be served witii w<iK'.- :
t be found notice nngUt W
agreat hii>se of tune au;l
. — Mowat.
^covery of mortgage mr.noy.
Ml tlie parties was, wlutlui-
"hadbeenvaia-, bothvavt.cs
the hearing, aaid the couvt
,id adjudged thereon without
ix.Shhi; KfOhy. 4b.>.
„e was transferred to secure
u. nun-tgagee, one ot wIikI,
i\^vrs*'afterwards, touud m
ssiunee of the mortgagee, and
M, who chvimed to he en-
,m" ,1 ..bill to foreclose, lut-
i^^^JeShtestihed that they
fot^nany years been under th.
,lie whole chvuu ""'^er e , ,~-
1 naid : that the i.huntitl, M..
-^n this note, and that th.
1 oversight, not l.eendehve.l
,. ^vho had acted for M ha u.
ntewas the one m Mx > ■
{that it had never been pua.
f ll„. fact that the nioitgiUA
ItbSldtthehandsoftlu.
t no demand during so .uiu.y
r l„ for th'-.ir discharge, ym-
'irdJ^ree'in favour of vl-mtt.
lU, -21 Ohy. 30.
L„rs and A<lmmstn'lors.
l- c 87, sec. 5, only authorize.
L-^v the le>'al estate ..n piiynunt
V Fiirr <'t el" --^ *■"*• '^-
l-x, 9 Chy. 572.
tgage gi> aware, hut lu
klSTthe co-executor w^a^e
L loss oecasnmed t. tut t
LthediscYrgMo^ev.li>;
1 signatures of both excamr. ,
on BPC 6'2. 0., one of sfi^^^
-Blake.
A foreign adininistr.ator cannot effectually re-
lease a mortgage on land in this Province. Pay-
ment to him, and a release by the heirs, are not
sufficient to entitle the owner to a certificate of
title, free from incumbrances, umler the Act for
Quieting Titles, /n tr T/iurjic, 15 Chy. 7(>.
A mortgagee apjiointed the mortgagor one of
his executors ; and the mortgagor became the
acting executor. The mortgagor afterwai'ds
a|,freeil with H., the owner of other iiroiierty,
for an exchange free from encumbrances, and
that li. sliould pay .'?'2,000 for tlie dirt'erence in
value. The mortgiigor had endorsed on the
mortgage certain sums as i)aid ]>y him tliere(ui
after the mortgagee's death, reducing thereby
the amount appearing to be due on the mort-
gage to ,f!l,()00, no ])art of wliieh, however, was
payable. 15. sati.srted tlie!?l,()0(), partly in money
piiid to the mortgagor, i>artly by a (lebt owing
to B. by tlie mortgagor, and partly by moneys
which had theretofore been lent by B. for the
purposes of the mortgagee's estate, and the mort-
g.igor thereupon indorsed on the mortgage a re-
ceipt for •'><1,()00 in full. The eonteniporaiieoiis
piijinent of money was witli the assent of the
other executor. It afterwaids appeared that the
mortgagor was largely indebted to the mortga-
gee's estate at the date of all these transactions ;
—Held, that the contemporaneous payment was
a valid payment pro taiito, the same liaving
licen made with tlie assent of the co-executor ;
Init that the estate, or the co-executor, was not
Iwuiid by the receipts eiuhirsed on the mortgage ;
and that B. was not entitled to credit, as against
the estate, for the private de1)t due to Inm by
the mortgagor, nor for his antecedent loan.
Bacon v. S/ikr, Hi Chy. 485.
5. Atfonii'i/ or Aijpiif.
A discharge of mortgage was executed under
a power wliich, after autlioriziug the attorney
to sell the ])rincipars lands and give receipts
[or the coiisiilcratiou money, gave power, upon
payment of all or any debts, to give proper and
suflicieut aciiuittances and discharges for the
same :— Held, sufficient authority to sign the
statutory certiticate. Lee et at. v. Jlorruu; 25
Q. B. ()04.
Held, tliat an authority by plaintiff to his at-
torney to collect the interest due on a mortgage
ill the plaintiff's, and not in the attorney's, pos-
session, did not entitle the attorney to receive
payment of the principal. Pdlmcr v, Wiiixtan
hj, 23 C. P. 58().
A. had authority to collect rent, and to con-
tract for the sale of property, and to receive the
down payments : — Held, that such authority did
not entitle him to receive payments on a mort-
gage given for the unpaid purcliase money.
Urtemt'Oiid Y. Commcirhil Bank; 14 Chy. 40.
Where such an agent had at one time, without
Jttthority, received some payments on such
Mortgages, which tiio principal did not publicly
repudiate, and anotlier mortgagor, who did not
apiiear to have had notice of these payments.
Mile a payment to the agent, on his mortgage,
fourteen months after the agent had ceased to
receive any mortgage money, such payment was
belli to be not a good payment. 1 1).
SecPfi/wir v. Wlnntmley, 23 C. P. 586, p. 2.30().
(!. Conrri/rnii-i' <if ^ror'ijmjrc'n liitercxt.
Defendant, being seized in feo of land, mort-
gaged it to H. in lS(i7. In .ranuary, l8(iS, an
1 attachment in Insolvency issued against him,
I and in May following he gave a secoiiil mortgage
j to the plaintitf. H. Hied a bill to foreclnse \\'..
1 defendant's assignee in insolvency, ami the Mas-
■ ter's report in the suit treated the plaintitf as an
I encumbrancer. The phiintitf assigned his mort-
gage to H., and W . assigned tiio eijuity of
; redemption to (i. Pending tlie fureelosuio suit.
I but after the report had bfcoiiie alisolute, (i.
j paid to H. part nt' the money due on defendant s
I mortg.age, and received an asjigiiineiit from him
and a release of the land from this mortgage. It
was contended that H. having disal)led himself
from reeoiiveying to defendaut, could nut as
beneficial plaintiff recover from him the lialance
of the mortgage money: lint -Held, otherwise,
for defendant having conveyed nothing by the
mortgage, his equity of redemption being then
vested in \V., couhl have nothing to get back.
The replication setting out the facts aiiove stated
having been proved : — Helii, that the plaintitf
shouhl have had a verdict, without reference to
its validity in law as an answer to the plea.
liiliui V. WlUon, 32 <l B. 5.")3.
Where, after the mortgagor had assigned his
eipiity of redenipti.in, the ninrtgagee. with the
concurrence of the assignee, l)y sale and transfer
of the mortgaged premises, put it out of his
power to reconvey on redemption by the mort-
gagor, it was— Held, that he could not call upon
the mortgagor for payment of any deticieiicy
resulting upon such sale of the estate. Barn-
ham v. Oalt, Ifi Chy. 417.
If after a mortgagee has obtained a final order
of foreclosure he has mortgaged the estate, that
fact alone will not deprive him of the right to
sue for the mortgage money, if at the time of
bringing the action he haspiiid oil the mortgage
created by himself, and is in a position to recon-
vey the estate ; neither docs the fact of his
having alhiwed the premises to fall into decay
prevent him from so suing. (Rowland r. liar-
butt, 13 Chy. 57S, observed upon. Manmn v.
//rtK.sv, '22 Chy. 27<.».
7. livhia-fi'. of' Part of tlo- Pn-rn'ms.
A mortgagor conveyed part of the mortgaged
property to a purchaser, the mortgagor cove-
nanting against incumbrances ; and the mortga-
gee subseipiently released the ])art so sold from
his mortgage; — Held, that, as the release was in
accordance with, the mortgagor's own obligation
as to that part, it di<l not atteet the mortgagee's
right to recover the mortgage debt, m- his lien
on the rest of the mortgaged property. Craw-
ford w Armour, 13 Chy. ■")7().
Where a mortgagee and mortgagor sold and
conveyed partof the mortgaged property, without
the concurrence of a person to whom, subse-
(luently to the mortgage, the mortgagor had sold
tlie remainder of the property, and whose inter-
est was known to the mortgagee ; and the mort-
gagee covenanted forfreedom from incumbrances:
— Held, that, the mortgagee having thereby put
it out of his power to re-convey the whole of the
mortgaged property, he could not call on the
owner of the remaining portion for payment of
2311
MORTGAGE.
2312
the liiilanco of tlic uKrtyayc money. Ouwlaml v,
Oarljiil/, i;j C'hy. 578.
Tliis rule docs not apply wlierc the sale is un-
ilcr .a power odiitaiiK'il in the mortgage, or wliere
the mortgage is of i,liattel.i, vhieli a mortgagee
has a right to sell without anj'express power. ///.
But it applies to a sale under a ileeive in a suit
to whieh the owner of tlr, un8t)ld portion was no
party. 7/-.
AVIiere the mortgagee's right to elaini a lien on
the iniNolil jiortion lias thus been put an end to,
it is not revived Ky his, two years afterwards,
obtaining the eonsunt of the first purehaser
to a reconveyance on payment of tlie mortgage
money. ///. .Vee, also. Uiitlir'a v. Slihhhi. Ih.,
.")8'>, (note.)
Possession by an .adverse claimant is no notice
of his interest, to a party partii'.g with the
estate. A mortgagor sold or.e of the mortgaged
pareel.s, and the purchaser went into possession ;
the mortgagees afterwards, having no notice of
the sale, icleased the other parcels to the mort-
gagor, retaining the mortgage on the sold parcel ;
upon which tlic purchasei' <if that parcel filed a
bill to have it (leclare<l that by the release his
parcel was discharged from tlie mortgage : —
Held, that lie was not entitled to such relief ;
and tli.at, not having oO'ercd to redeem, his bill
should lie dismisscil with costs ; but the defen-
dants having prayed a foreclosure in dcfaiilt of
payment, a decree to that etl'ect \\ .- ■■ .iiounced.
Brrkx. Mufiiff, 17 Chy. (101.
I'irst mortgagees with ii, jiower of sale released
portions of tlie mortgaged property to the mort-
^tagor : — Held, that this did not u ' prii . y o
a subsequent incumbrancer, witli H-sjieet to the
remainder of the pro](erty ; but might render the
first mortgagees rcs[ioiisible to the second for
the fair value of the parcels released. Tin' Tniat
I'li'l LoiDi f'd. iif CniKidn v. Bovlton, 18 Chy.
•lU.
S. Sail (if till Eijuitii of RdhmpCuni.
A. liKirtgaged lands to Z. and the defemhint,
uid the defendant Jissigiied his interest therein
to Z., covenanting by the same instrument for
the jiunetual payment by the moitgagor of one-
half of the jirincipal and interest. Toan.'ietion
on this covenant liy the executors of Z. , defen-
dant ]ili idcd that a judgment had been recovered
against the nupitgagor on said mortgage, for the
benefit of Z., who afterwards devised all his real
estate to the plaintitls, and that the eijuity of
redemption having been dulj- sold under said
judgment, was purehaseil by the pl.aintifl's .as
such executors and devisees, and conveyed to
them by the sherill', whereby the dclit became
satisfied, and defendant w.as disch.arged. In
another plea it was alleged that the etjuity of
redemption was purchased bj- M,, one of the
[ilaintids, and the eonvejance thereof taken to
him for the benefit of himself and the other
[ilaintitl's, as such executors and devisees : —
Held, 1. That the plaintitls, as devisees of Z.,
were assignees of the mortgage within 12 Vict,
c. 7.S, and that the pur^'.-iise by them of the
ecpiity of redemption must liave the same efifect
as if it had been by Z. in his lifetime ; 2. That
the efiect of the statute was to work a satis-
faction of the mortg.age, though the provision is
mere'.' that the mortgagee, &e., buying, nhixW
gi- e ii release to the niortg'agor ; and, Semlile
that the defendant, instead of setting out the
I facts, might have pleaded payment in the onli-
I nary form ; .S. That upon the facts stated in the
; second plea, the case must be looked upon as if
all the executors had been purchasers ; 4. Tl^t
j the mortgage being .satisfied, ilcfendaiit w.ih h]..,,,
discharged from his covenant ; and theiifoiv
that the second iilea (which was deniuricd to)
shewed a good defence. WiKidnijt' H «/. v. l/,7/...
20 Q. B. .-)1.
One C. gave a mortgage, on which a covenant
I by one S. was endorsed ai security for tiie
I interest. C. having made default, the mortga-
gees recovered judgment on the mortgage, and
under a ti. fa. hinds sold t'.'s eijuity of redciiii).
tion, S. having been called upon umlcr his
covenant, his executor sued C, the mortg;i;.'rir
j in this action, for indemnity ;— Held, tliatuiiilfr
the facts .as .'tated, the sale of the eijuity of
redemption did not operate as a relea.sc of the
mortg.agor, nor of his surety, nor of defendant's
liability to indemnify his surety. Stitntrt v
Chirk, hS C. V. 20.3.
Property which was subject to a mortgage
having been allowed to run into arrear for taxes'
waa offered for sale by the sheritl', under tlie
wild land .assessment law, at which sale the
I mortgiigee became the purchaser, and suljsc-
tplentlj' obt.ained the usual conveyiince from the
sheritf. The mortgagee afterwards instituted
proceedings .against the mortgagor, to eiifurce
payment of the mortgage money and interest
whereupon the mortgagor filed a bill in this
court to restrain the action so brought a;;aiiist
him, asserting that the sale by the sherilf liml
the eB'ect of discharging him from all furtlier
liability in respect of the mortgage debt. The
; court, imder the circumstances, refused the
application, the efiect of such purchase by the
mortgagee being not greater than a decree (if
foreclosure, where, it after a final decree the
mortg.agee proceeds to enforce payment of tlie
mortgage niouey, it will open up the foreeldsiiri- :
and, Semble, that after such a sale the iiiorti.':ii;iir
might have treated the mortgagee as lialiletu
j be redeemed, and have tiled his bill for that pur-
pose. iSiiiart v. Cuttle, 10 Chy. 5!).
it. Mcnjcr of Movtijaiii' Dvht.
The plaintitr brought ejectment on the (itl^
September, IStio, claiming under a mortgage fr
W., the then defendant, in whose place ,M. v
allowed to defend as landlord, claiming luulu
'mortgage from W. to McI., assigned to jiim
I The mortg.age to McI. was given on the Dtli >
I November. 18(>1, and that to the plaintiff tin th
I 21st of M.arch, 18()4. On the 21st of Septoiiihe
'■ ISfi"), Mel. by deed reciting an interliiLiit(
I decree in Chancery in respect of the forechisiir
of W.'s mortgage to him, conveyed to .M, ..
W. 's appointee, and on the ilth of Xuveiiiher
18G.5, by a decree in the same suit, this iiuirt{.'aj,'
was finally foreclosed. It w.os conteiiikMl tlia
the mortgage to Mel. had merged in the iiilieri
tanue, and could not be set up against the iilaiii
tiff, but — Held, that if it were so the iilaiiiti'
could not recovei, for when he brought his .actio
he was barred by the mortgage, and he coiili
not avail himself of what took pl.ace after wan
2312
i«ce, kc, linyiuK, »h\\\
..rtgagor; ami, S,inil>k',
teail of Hi-'ttiiig "lit tliu
.^\ iiivyiiu'iit ill tilt-' (ii(\i-
,11 the facts stated in the
i,stl>eh«)ke«l niton as if
ucu imrchasiis ; 4. 'I'liat
,«tie.l,acfonaaut was also
iveiiaut ; and tlii;n:tore,
,vhiih was aenmnvl ti.)
ra.'C, on which a covenant
rs^.l aT aoeunty tor tliu
nailo default, the uiortga-
ent on the mortgage, and
„ld (-".'s eijuity ol redenip-
Bii called uiiou under his
,v sued Ctheinortgagur,
emuity:-Held, that under
the sale of the ^luity of
.perate as a release ,.t the
/surety, nor. ,f defendants
fy his surety. .S;<"'<('-f v.
,vas subject to a niortgage,
t„ run into arrear tor taxes,
e l,y the shentt, under the
,„t law, at which sale the
'the i-urchaser, and sul.se-
,0 usual eonveyance fr.m, he
irauee afterwards instituted
t tlie mortgagor, to eiiturec
ortgagc money and interest,
„rt°agor tiled a hiU ni this
faction so brought a^iuis
tthcsalel.ythesierdf Im.
,ar>'ing him fi-on> ■]}\ '">• ,^'
"ot^re mortgage dcht 1 ho
circumstances, retused tie
i-ect of such nurchasc hy the
„„t greater than a decree ct
e if aft^i- '^ «mil decree tie
I; to enforce V;Vy";cnt of tlie
it will open uv the foreclosure:
'XrsiJchasalcthen.,r,.gnv
1 the mortiiagee as lialile to
liavelUedNris^iU for that pur.
W//.', 10 L'hy. 59.
I,,.)- of Mort<i(i<ii' Deht.
Iroucdit ejectment on the Otli
fendant, in whose place M. ^as
KVndlord, chummy; luu- a
\\. to McL, assigned ten. ,
\T,.l was gvcu on the mh of J
■udthl to^heplaintitionthe
sir Onthe-21stofSeptcni.e,
„1 v.-eithiu an uiterhicutnry
1 1 U was eoutende.1 tliati
S'U r8«.H» .i-»;:i;;
2313
MORTGA':^E.
2314
It Wivs prove<l that the (lefondant, in April or
May, lH(!ii, asserteil tliat lie liad got a deeil of
the oipiity of redemption fnim \V. : -Held, how-
ever, that this miglit refer to the ei|uity as
created hy the second mortgage, and that the
defendant was not estoppeil from d 'lying W.'s
title to mortgage in fee in 1804. McKay v.
McKoi/, 25 Q. 15. i.Sa.
Declaration on a covenant to pay money.
Plea, that the plaintiff .s.dd a vessel to defen- I
danta, and the deed coiit:vining the covenant sued ,
oil was a mortgage and reconseyance thereof to j
the plamtitf to secure tlie purchase money ; that
while the plaiiitilf was such mortgagee, the ,
vessel, and all defen<lant's interest tlieieiii was
sold, and the plaiiitiiniecame, and is, the absolute
owner of said vessel, wliereby said mortgage l)e- ^
c.iine mergeil and satislied. Kipiitable replica-
tion, that the vessel was seized and lilielled
for wages due to her crew, and condemned and ^
sold in Detroit, in the United States, under
the admiralty law there, and the plaintift' pur- '■
chased her for about .S2,30() : that she was so!
sold without plaintitrs privity or consent : that '
liy the foreign law the purchaser ac(piires an I
absolute and paramount title thereto, and pur-
chased at the sale as any stranger might, and
thereby bought the same abs(dutely, and not
merely the interest or e.piity of redemption of
tlie defendants, therein as in the plea alleged ;
and that he holds the same by title paramount,
and not as a mortgagee having purcliased the
e((uity i>f redemption thereof ; and tliat said
mortgage did not tliereby become merged and
satislietl as alleged :- -Held, on demurrer, that
(left'iulant was not liable, for that the mort-
agee could not sue for the niortgage money,
while asserting his riglit to the property mort-
gaged wholly independent of any title clerived
from the mortgag.n-, and witlnnit any right to
redeem. Pitrkiii-i'/ii v. //'nji/int cf «/., 37 <i>. B.
308.
The replication, having been amendeil after
tl;e judgment on tlie previous demurrer, alleged
tliat the vessel, lieing a British ship, was seized
for wages due to the crew and sold at Detroit,
in the L'nited States, solely through defendant's
default : that by the law of the l'nited States
tile wages formed a lien prior to the mortgage,
ami the plaiutiti', wliidly to protect himself, and
not to gain any advantage over defendant, Ije-
ame the purchaser : that be ofiered, and was
always willing, to re-convey and deliver her to
i uefeiulants on being paid the mortgage money
I snil the money paid by him at such sale, which
ilefeiulant refused to pay : that the plaintift",
having possession of the vessel, insured her, and
1 on lier loss by the perils of the sea receiveil tiie
1 iisurance money, which the plaintift' is, and
ilways has been ready to apply on the purchase
money :— Held, on demurrer, attirming the judg-
ment of (twynne, J., a good replication, and
thit the plaintiff, under the eireumstanees stated,
las not precluded from recovering on the eove-
Immt. .S'. t'.,40Q. B. 274.
Where a third mortgagee, wlio took without
I notice of the second mortgage, obtained an as-
I sipimeiit to himself of the first mortgage after
k hail notice of the second, and then pur-
I tiiased the interest of the mortgag.n- : — Held,
j the second mortgage was the only sulisisting in-
Itimilnanee on the property. Emiiiom v. C'lVoLi,
U'hy. 159.
L. purchased from S., who conveyed to liim,
and immediately took bark a mortgage to secure
the purchase money, in whicli l,.'s wife did not
join. L. afterwards conveyed liis eiuity of re-
demption to H., wlio subsequently coiiv'eved to
S., aiidS, then sold to another party. L. iiavin--
died, his widow sued at law for dower. A l.iil
was tiled, praying an iiijunetioii to stay tl;u action,
and for a declination that the widow was, under
tlie circumstances, not entitled todower .• -Held,
that the mortgage was imt extinguished as a
char''e on the imrcliase of the eipiity of reileiiip-
tion by S. froniH., ornierged in liis legal estate.
Per Hsten, V. ('., the (iiiesti<in of merger is one
of intention ; in the aliseiice of evidence of in-
tention, the court will eonsider that course
selected by the purchaser which was most for his
benelit ; and tliat in this cisc the niort:,':\ge liecame
merged in S.'s estate ; that the piaintitt' had no
e(|uity to restrain the acti m for dower, ami that
tlie bill should be dismissed. flun-ii v. Lriir, fl
C^liy. 2().").
Where a derivative mortgagee ttiok a convey-
ance from the original iiii>rtgagors, and there was
noexpress stipulation as to wjiether there should
be a merger or not; Imt the conveyance taken
from the mort''agors was therein deelared to be
made in consideration of the settlement of a suit
of foreclosure between the jtarties to the deed,
and in satisfaction of the grantee's lien, claim,
and interi iii the property, and subject to the
lien and ii.Leiest of the original mortgagee ; and
the grantee gave to one of the mortgagors a bonil
of iiulemnity ag.iinst any claim of the original
mortgagees against him in respect of the original
mortgage debt :— Held, that the deht to' the
grantee (the derivative inoi-tgagee) was at an
end, and that the l)alance due to the original
mortgagee was the oiilv charge on the propertv.
Fiiilin/soit V. Mill.-; U'Chy. 218.
Where a mortgagee of lands buys up the eipiity
of redeni[ptiiiii, taking a eonveyance to himself,
his charge will merge or not, according to the
bargain lietweeii the parties at the tiine of his
obtaining the transfer. Finlfii/sun y. M,lh, \ \
Chy. 21S. See B.irhr v. En-h's, IS ( 'hy. 440, p.
Premises having been twice mortgaged, were
sold at sheritrs sale to S., who afterwards ob-
tained an assignment to himself of the first
niortgage :— Held, that he might still claim the
sum due on the first niortgage, no merger having
taken place. Senible, tint in this respect our
law is more favourable to S.'s position than
English law woidd be. EHiolty. Jiii/m, II Chy.
412.
j C. being the sixth mortgagee, tileil his bill
i against the hohler of the eijuity of redemption
i and other incumbrancers. The lu'ior mortgagees
I were not parties to the suit. A sale having been
I directed, was conducted by the s.dicitors for one
of tlie defendants, and C purchased the premises
for less than his mortgage debt. The conditions
of sale contained the folhiwing clause: "The
said premises will be sold, ^-ibject to prior mort-
gage incumbrances, amounti;'g in tlie aggi-egato
to the sum of £1,831." ('. then bought up tiie
three first mortgages and had them assigned tfi
a trustee for his beneHt, and in other respects
shewed his intention to retain them as outstand-
ing liens. He also negotiated for time with the
holders of the fourth and fifth mortgages, pro-
tf
-231 T)
MOllTGAGE.
2311
posing as part (if the terms to treat the first tliree
iniirtgagt's as discharged. Tliese negotiations
failed. ('<., the fifth mortgagee, redeemed the
fourth and forechised C. a.s owner of tlie eijuity
of redemption. Tlie tliree first mortgages, hav-
ing lieen assigned to the plantifV: — lleld, on a
bill liy him on them, against (i., that these three
mortgages had not merged in C's ecjuity of
redemjition, and that the negotiations between
him and the jirescnt holders of the ecjuity of
redemption having proved abortive, eould not
be set up to liar the right of action of C. and his
assignee upon these mortgages. Jii iity v. Uixid-
irham, 13 Chy. 317.
Covenant ou a mortgage. Plea, that defen-
dant conveyed to the plaintiff his eijuity of
redemiition in the land mortgaged, which the
plaintiff i eeepted in satisfaction of the claim.
It appeared that when the plaintiff conunenced
this action, dtlendant offered to convey the laud
in satisfaction of the debt, but the plaintiff'
declined. His attorney afterwards, hearing
that one 0. wouhl buy the land and pay the
mortgage, told tlie idaiiitiff', who said it was all
the same to him from whom the money came,
and at (i.'s wish, the deed was made by defen-
dant to the plaintiff' instead of to (>., and left
with the attorney. Afterwards, however, it
appeared that (I. had referred to another lot
owned by defendant, ;vnd he refuscil, therefore,
to carry out the agreement: — Hehl, that the
plea was not proved. /Iiniry.Jlcn/ci), 18 Q. 15.494.
Under the 14 & l.") Vict. e. 4-), (C. S. U. C.
0. 87,) a mortgagee has a right to get in the
eijuity of rediiiiption in any way without there-
1)V merging his security, and thus enabling a
puisne incumbrancer to compel him to pay ott'
such puisne ineumbraneer's claim. Therefore,
where a first mortgagee took from the mortgagor
a release of the e(|uity of redemption, the consi-
deration therefor being expressed to be the
amount due on the mortgai'e for principal and
interest, "and in satisfaction thereof," to the
intent that the mortgagee "may hereafter hold
and enjoy the said land and premises * * *
freed from the proviso of redemption '' ; and the
mortgagor covenanted for further assurance, and
that he had done no act to imnimber : — Held,
reversing the decree below, '21 Chy. 242, that the
securitj' of the first mortgagee was not thereby
merged, and that the only relief a subseijuent
incumbrancer was entitled to, was that of re-
deeming the first mortgagee. -Strong, J., diss.
Jlarl v. J[c(Jiii. •</,:, I, 22 Cliy. 1,S3, in Appeal.
11. ( 'crtlficatc of Disfhari/v.
The registrar is bound to register or file a cer-
tificate, or discharge of a portion of the lands
contained in a mortgage. In n lihUmt, Jfei/'mtrar
of the United Count ii» of York, OnU.riu, and Pevl,
2 C. P. 477.
Somble, that the certificate of the registrar of
the tli.scharge of a mortgage, endorsed on the
mortgage deed, is a sufficient evidence of a re-
conveyance under the .statute, without shewing
the execution of the discharge itself. Doe d.
('rookithunk v. Hinnlierntoue, (i O. S. 103.
Held, that a discharge of mortgage, not being
under seal, was not an estoppel as to the fact of
payment, li'ujclow v. tStaki/, 14 C P. 27C.
In an action by vendor against vendee on a
agreement to purchase land, the questioi wa»
whether the vendor had a good title, it ai
peared that there were two mortgages upon tli
land, both paid ; of the one an entry of dischari;
ha<l been duly made in the registry office, of th
other a certificate of discharge had been siinic-
but not recorde<l : — Held, that from tlie eiitr
l)y the registrar the certificate, which was ii(i
produced, must be assumed to have been in iin
per form, and as such entry hail by the st.atut
the force of a re-eonveyanee, the first morti'nc
could form no objection ; but, 2, that as tiTth
3econd mortgage, thougii it was paid, the lei'ji
estate remained in the mortgagee, and the iiliui'i
tiffs therefore eould not succeed. La ct a! \
Jlorrnir, 25 (,>. B. G04.
The registrar having recorded a certificate ii
discharge of mortgage under C. S. U. ('. c. Sf)
upon an affidavit which did not state tlie iilao
of execution, as reipiired by the statute :- Held
that though he should properly have refusal ti
register it, yet being registered, it was etlcLtiw
as a re-conveyance of the legal estate to tin
mortgagor. Itobson r. AVaddell, 24 (,». 1!. .".i
distinguished. Miiijrtit/i v. Todi/, 2(i (}. I;. ,S7.
In ejectment it appeared that defendant liai
purchased under execution, and there beinir ;
mortgage on the land he paid it off, and timk :
certificate of discharge in the usual foiiii, statiiii
that the mortgagor had paid th money due, imi
such a certificate as is provided for by ('. L. [>
A. s. 258, on sale under execution of a m(iit"a'
gor's interest. Semble, that the taking the ciT'
tificate of discharge as stated eould not defeat
the purchaser's title by vesting the moit"am's
estate in the mortgagor, but that it would emir
to the lienelit of such imrehaser as the iii(iit};ai
gor's assiguee. Let- v. J/oirci ct »/., ,S0 (i ]{
292.
Under 31 'N'ict. e. 20, <)., a registrar caiuKit
required to register a certificate of disehar'
mortgage, applying to more than one in^
ment. Each mortgage to be dischargcil sli
have a separate certificate, Jii re Sniith
Slicn-ilon, A'ltji.itrar of the Coiintii of Bran'
Q. B. 305.
Quiere, as to the effect and validity of a
tificate embracing several mortgages, (ir nf
registry. lb.
In this case, the certificate related to tw
mortgages, stating that they were respeetiv
registered in the registry office for the cduiity
Brant, on the day find hour muned, in letter
the general register for the county, as iiunihei
53 and (ifJ respectively. The I'cgistrar rcister
it in the general register book, but lefiisei
record it in the books for the town and townslij
of Braiitford, thougli the mortgages iiieliiil.
land there, on the ground that it only nieiitione
the number of each mortgage as regi.steiei
the general registry book :— Held, thai this re:
son was insufficient. //;.
A mortgagor before his death paid about tlirc
fourths of tlie mortgage money, and his widrn
acting for his estate, paid the rest. Tlie certil
cate of discharge, given four years after li
death, under 29 Vict. e. 24, ()., and duly rotn
tereil, stated that the 7nort(/ai/or had satisiitd
mortgage, and that it was therefore diselwri.'
— Held, suttieieat. Semble, that it would iiav
stni
111,
231G
or ngaitist vcmlec on an
lau(T, the (HU'stioi wan,
„\ a «o...l title. It av-
two mortgagoH uv'>n tli.;
„uc ail entry of .li«cliargc
the registry o»iee, of tlic
ischargc l.a.\ l.eei. Higiu.l
iel.l tiiatfrom tlui entry
■ertitieate, wliieh was w^t
mne.ltobavelH.enmi;'';-
entry liail 1«y tlie statute
•vanee, the lirst mortgage
on; hut, -.thatant^'tl.e
ngh it %vas i-ai.l, the legal
, mortgagee, an.\ the !> an>-
not succce.l. L'' <t "'• v.
4.
nti recordcl a certificate of
,,^mulerC.S.U.C'. ^■•bO,
fch ahl not state the vlaee
iredhy the statute -.-HeU,
la l.roverly have refuse.! to
. vigistere.l, it was elleetual
^,f the legal estate to _tW
,1 ,. ^Va.hlell, 24 > . 1 . .n4,
,,rath V. To<M, 2*; (.>. B. b<.
mpearod that aefeu.lant ha.l
Ucution,.an. there heu>|a
mil he pai.l it "ff. '""^ ^""^^ •'
:rgeintheusualf..rn,,st.tmg
rhaai-aidth —y-l-.-t
va is i.rovuleil for hs (- ■ !.■ I .
under execution of a n.ortga-
■mhle, that the taking the cor-
:"ivs stated c.ml.l not del.w
tie 1,y vesting the mortgagees
Lor, hut that it uoiil.Uuun
puc^i .uvcl>^vser as l-„"; J«'^-
23 1;
ItlORTGAGE.
2318
oQ O a registrar eamint lie
•i certificate of .liscliarge o'
the
if
than one lustni-
.'L'll sill mill
Siiiilli iitiil
IniL' to more .- , , ,,
I *= to he (lischarged sli'ml.l
)rtgage
certificate, •'" ''''.
■ar of the Comhj oj Bran', .11
Hie effect and validity of accr-
fg several mortgages, or ut it.
, the certificate related to two
L,, that they were respcetiulj
Wecristry othee for the canity .
L aSl hour muued, in letter Aof
Ker for the county, as numl^eva
Kively. The registrar rogisteml
K reg «ter hook, hut leUise.t.
K,oksSorthetownandtow..J.
Ih uuh the mortgages ii.oliuk.
KouiHltliatitonlyniernKm^^^^
I „,.i, inorttiage as registeiea m
IShook-^'^^^^''^'''^'"""
lieiit. ■/''• I
8tate.vai;|t»^,f%,,, ,fter4
b^>rT4 .,a"d.l«lyrc,ns
fessssa
heeu sntlicient, also, if the jiayer's name had
heeu altogether omitted. Carrivk ct nl. v. Smith,
;},-) (i. H. 348.
12. Otlni- CtiHCS.
Declaration for an instalment due hy defendant
to plaintifl' on a nun'tgage. E.iuitahle plea, that
at the time of executing the instrument declared
oil there was a prior mortgage on the property,
which, hefore this action, had heeu foreclosed ;
that the mortgagee in this prior mortgage had
agreed to and had conveyed to an ai)pointee the
estate in the lamls upon conditioi' that the sur-
plus value thereof, above the iirst mortgage,
should go towards satisfaction of <lcfelidant's
mortgage; and that the surplus value thereof
was the full amount of the principal and interest
„f the defendant's mortgage, and thereby in
eijuity defendant was relieved from his eovenants.
(In demurrer- Held, that the facts shewed an
niitotaiidiiig ecjuity of redemption in defendant ;
that a release would have to be executed by him,
which this court hail no power to compel : and
therefore the plea was bad. Bnnrn v. Ofhonie,
lit', r. 500.
A party procured a release o{ a mortgage
fioin a mortgagee, in order that a mortgage
niii'lit be made to anotlnn- party, by way of
trust to raise money. The trust was never
carried out, the party for whose benefit it was
iiituiideu having died. His executors then filed
a hill to foicclosc, and thereupon the mortgagor
tiled a bill, on the ground that the trust having
failed the mortgage should be delivered up to
lie cancelled : — Held, that he was entitled to
tiie relief. Wurthhujton v. Eliot, Eliot v. Worth-
Intjtun, a L. J. (J5 — Ghy.
Where the husband of one of several tenants
ill cimimon, in order to sccuio a debt due by
;uiotlier of them, executed a mortgage which
ooiiveyed a life estate only ; and on default in
paying the mortgage money the mortgagee hail
sued and obtained judgment and execution
ji'iiiiist all the mortgagors for the debt, and un-
ikr the execution had sohl their revei'sion, and
the mortgage was thereby satisfied, but the pur-
chaser went into possession during the life of
the mortgagee : — Held, that the personal repre-
seutative of the husband was a necessary party
to a suit by the mortgagors for a re-conveyance
III" the mortgagee's life estate, and an account of
the rents and profits. Xcl-toii v. Ruhvrtxon, 1
Ihy. 530.
Amortgagr was made forCllOfi, payable £200
hi four, f200 in eight, and £224 in twelve
months, the residue at later periods. The thinl
histalment was paid. For the first and second
the mortgagor gave two notes, bearing even date
irithtlie mortgage, and took the following i-e-
ceiiit from the mortgagee: "Received from K.
B.W, his notes for .£200 at four months, and
{■200 at eight months from the first of June
[ last, ill full for the same amounts due on a niort-
3 made by him to me. maturing at same
I date," And the following endorsement was
ideonthe mvjrtgage : "Received from R. B.
I W. two notes of hand, endorsed by L., for £200
each, to complete the two first payments on the
rthin mortgage. The notes not having been
1 jiaiil ;— Held, that the right to recover upon the
mortgage was only suspendeil, and not dis-
charged by taking the notes. (Ulih v Wurnn, 7
Chy. 4!M>.
The bidder of a mortgage on real estate, and
of a judgment recovered against the mortgagor,
agreeil, after the death of the mortgagor, with
his widow and two of the heirs, for the release,
on ccriaiii terms, of the cipiity of redemption
in the mortgaged premises, and also for the con-
veyance to him of .■mother portion of the real
estate in discharge of the mortgage and judg-
ment debts. On a bill tiled to enforce this
agreement, it appeared that the otiicr children
of the mortgagor, who were infants, were in-
terested in the estate. 'I'hc court refused the
relief prayed, but directed a reference to the
master, to eni|uirc if it would be more for the
advantage of the infants to adopt the agreement,
or that a sale of the estate should be made
under the decree of the court. MrlJouiiitU v.
Bdiriiii, 9 Chy. 450.
S., by arrangement between himself and H.,
the owner of the equity of redemption under a
mortgage made by ( i., released the security with-
out any consideration paid therefor by H. or O.,
and discharged H. from li.ibility. On a bill filed
by ail execution creditor of S., charging that at
the time of this release S. was iiidelitcd to him,
and was in embarrassed and insolvent circum-
stances, praying that the discharge might be
declared void, as being within the l.'i I'^liz. c. 5,
under our act 20 \'ict. c. 57, ami for foreclosure
or sale, and an order against H. to pay the de-
ficiency :--Hcld, that the interest of a mortgagee
is of a nature to bring it within the statute of
Vnizabeth, if it can be seized under the 20 Vict,
or can be compulsorily applied to the payment
of the debts, and that a discharge of it without
consideration is "a gift or alienation" within the
prior statute : that the mortgage would have
been scizable had it not been discharged : that
when the mortgage is actually seized by the
sheritf, and the mortgage debt is to be received,
the shcritl', jicrhaps, must sue, and the creditors
are, under the statute, entitled to the same rem-
edies (with that one exception) as an ordinar'y
assignee : that when the mortgage debt is to be
realized otherwise than by the sheritt' suing, it
lies upon the court to see that it is realized for
the benefit of the party entitled : that the dis-
charge of the mortgage, and the arrangement
between H. and S., had the effect of releasing
(t. from liability, though the release might be
declared void, and the mortgage set up again,
and therefore that (i. would not have been a
proper party. Jlaid- of U. C. v. Sliirk'liiiia, 10
Chy. 157.
A mortgage being payable in lawful money of
the United States of America, the holder there-
of, in seeking to foreclose, is entitled only to
claim the amount in the current money of that
country, or its eipiivalent at the time of default
made in payment, or at any time subseipient at
his option. Crawford i: Beard ct al., 14 C. P. 87i
approved of and followed. Monx'lly. Ward and
Dow V. I|V(;'(/, 10 Chy. 231.
A mortgagor wrote to his mortgagee stating
that a sale had been arranged of a portion of the
property for £100, and urging him to release the
same for that sum. Subseiiueutly the mortgagee
released upon receipt of £50 only :— Held, thiit
the mortgagor was entitled to credit ou his mort-
n
2ri9
M()KT(JAGE.
i;]2(
gngo for t'100, incntioiiud in his letter. Jittll v,
Jnrrix, l(t Chy. ')(i8.
AVIiuiv ii iiiortg.igt' was to Hcciire lulvaiices to
he luiulo IrDiii time to tiiiie, ami inten-st tliuremi,
ami tiieri! weii! iiiutilal aooouiits, tliu items of
wliicii were entered in tile imirtgagee's iHiolts,
witli tlie edncurrenec of tlie niort^^agor, wlio was
hilt elfik : llelil, tliat the creditH L'iveu tliereiii
to tlie mortgagor were first apiilieaole to tlie in-
terest on all these advances, and then to the
eldest of the iirinciiial sums eharged. Ituxx v.
Perraiilt, l.'U'hy. 20().
A mortgagor conveyed part of the mortgaged
, property to a purchaser, eovenaiiting against iii-
cumlirances ; and the mortgagee siilisecjuently
released that part :— Held, that, as this release
was in aeeordance with the mortgagor's own
obligation as to that jiart, it did not att'eet the
mortgagee's right to recover the mortgage debt,
or his lien on the rest of the property. ( 'ranfiml
V. Aniiiiiir, \'.i t'liy. r)7(>.
B., being the owner of lot A., mortgaged the
same to C, who as.signed the security to J.,
covenanting fr)r the payment of the mortgage
moiiej', which assignment was duly registered.
Afterwards H. agreed with W. , the owner of lot
JJ., to exchange properties, B. undertaking to
to have lii.s mortgage to C transferred from lot
A to B., to whicdi C. assented, not informing
either of them of the assignment. ('. wlio was
a solicitor, was employed by both parties to pre-
pare the several conveyances, including the mort-
gage from B. to himself on the newl}- ac(piired
projierty. No mention was made or production
demanded of the first mortgage, which remained
undiseharged. 15. paid ofF and obtained from ('.
a discharge of the new mortgage given Ijy him
on lot B. ; and O. paid the interest to J. for
several years, when he made default, and the
plaintitrs, the representatives of .1., then applied
to B., when he, for the first time, Wivs made
aware of the assignment : — Held, reversing the
decision of the (Chancellor, that the payments so
made by B. to C had not the effect of discharg-
ing the mortgage on lot A., and that the plain-
tifi's were entitled to a foreclosure. Hehl, also,
that W. was affecteil with notice of the assign-
ment by reiison of the registration ; and with
constructive notice, by his omission to make any
en(juiries for the mortgage. Hehl, also, that it
was not necessary to set up the registration of
the assignment in the bill in order to prove
notice ; and that, if necessary, an {Hoenclment
should have been allowed under the Administra-
tion of Justice Act, 1873, s. 50. OUklniitl it nL
V. Wiultwurtk I't uL, 1 App. 82.
A mortgagee is not obliged to accept payment
of the W'hole prinei])al and interest of a mort-
gage on which only certain interest is due and
a bill to foreclose which has been filed. (Ireen
V. Ailnmn, 2 Chy. Chamb. 134. — Taylor, Secir-
tarij.
It is, at least, doubtful whether a mortgage
m fee by a tenant in tail in possession bars the
entail ; and whether, upon a discharge Ijeing
executed, the mortgagor does not take oack his
original estate, lie Dolsen, 4 Chy. Chamb. 36.
— Taylor, Secretari/,
A tender of mortgasre money, with a state-
ment that the party tendering did not consider
that the amount tendered was due, and that the
other would thereafter bo compelled to le-pay tin
excess, was held, not to have been invaliilatei
by this statement. /'<-//••< v. A/ltii, 111 Chy. '.(«
.\ tender to the (jwiicr of a mortg;igc (wIk
clainu'il a larger sum), with a (•oiiditiiin that tlh
niortgagi! on the sum tendered lu'ing lU'iciitcd
hhould be given U|i, was held bail, as bciii" ;
conditional tender. ///.
defendant being lessee for years, with tin
right to purchase tlic tee, in IH,")!! iiiMiti,'ageil t
one S. for C7."), payable; in four yens, with a pin
viso that until ilefanlt det'ciidant shoidil Iml.
pi)8se.ssion. In IHIil, he maile aiiotlur iiioitg;u'i
of the same premises to the plaiiitill' in tec, fo]
fllS, payable in six years, with a similar provi,sii
In 18<)3, the first mortgage was assigned bv S. ti
the plaintiti', and to an action of (■jectiiitii'
brought by him upon it, ilcfeiidunt set \i\t tin
proviso in the second mortgage, on whicli tlieic
had been no default : -Held, that the [iluiiitii
was not estopiicd, for 1. 'I'lie second iiiorti'aK,
might take effect by passing an interest : 1'
if the idaintitf was estopped by the sccoik
mortgage defendant was estopiied by the tirst,
and an estoppel against an cstop[)ei .sets flu
matter at large ; but .'{. Scnible, that the re-de
niise in a mortgage cannot operate by estoppel.
or otherwise, to grant a greater ciitate thai
the mortgagor conveyed, out of which it !.-
carved, and here he had no such title as In
professed to jiass. (,!ua're, per Hagarty, ,1.,
whether, although the ]iroviso could torm ni
defence in this action, the defendant might licit
have a remedy elsewhere to prevent such :\
violation of the plaintiff's personal contract iint
to disturb his possession. Jiiiur.t v. Mcdllini ii
24 y. B. 155.
See Parker v.
Chy. 179, p. 2.3.S1.
Vine. Oruivern A-i.tociiiiUin, '2'
VI. ItKiHTS AXI> L1AIIIMTIE.S OF TIIK IVvHllK,'
AND THOSE CLAIMISa VNDEU THK.M.
1. I'unsi's.tluil of tlio Pro/If fh/.
A mortgagee is entitled to take possessimi n
any time, even before default, unless the li;;
to possession till default be reserved ; and wiieil
it has not been, and the mortgagor has died, thl
widow stiinds in no better position than lal
husband. JJuc d. Jfuwat H at. v. l^mlth d al , \
Q. B. 13!).
A mortgagor continuing in possession, wiuii
the mortgage reserves no such right, is iiif
liable to the mortgagee for rents and profits, oj
in general, for waste. H'ttfcr v. Tuylvr i.f ait
9 Q. B. (J09.
Ejectment on a mortgage made by defcmlaiil
as a member of the society, to them, of a leasj
hold interest, dated 31st August, 1801, wliiJ
mortgage contained a proviso for i)ayiiieiit dl til
mortgage money by monthly instalments, fortif
years from the ilate, together with charges, tiiuJ
&c. , due, or or to be imposed by said society <
the defendant, as a mendier thereof, and a cu\|
nant to pay the instalments, &c., ami to iiidul
nify planitiffs against all payments and w\l
nants, &c., contained in the lease of thepremisi
in (piestion to himself, and an agrceiiiciit thl
until default defendant should have posstssiif
Proviso, that in case of default in payiiniit
any of the sums mentioned, for six iiidiitll
2320
,, havo lici-li mvivli>liit>;il
;...v. .1"'"- 1'.' <■>>>••'•'«■
iier of a m<irtg:i|^e (wli..
vith a ('"iK^it"'" tliiit th'
'eudt'RMl >ii'ii>K iK'ij.ti.l.
ssee for yiv>'i*. ■^^'t^' ,*'"
ec, in IH.V.t lUMitpigc.l t
, iuf-mryisviH w.t.ai.i-
It ,lft\'ii<liint xliouM linl.l
1,0 lUii.lo aiu.tlicr mortg;i-.
t.. tlu' i^'iiot'"' '" '"■• ""
.;ir«, withasinnliU'i.n.visn.
t.MKt! was a»sij^iK'.lU.v>. t.
, wi motion .-f oj-'ctuuut
, it, (IcfiMi.latit not 111- thr
I inortuage, on whul. thnv
.--HiW, that t\ic i.laHitill
ur I. 'I'lic sec(.ii<l nmrtga-.
,V ,,:is«iu« an iut.Mvst -. :
'.va«elt!.l.l.o.n.ytlu-U,-<t.
-ainst an ost..pi..i sfts t u
',t :< Scn>\.le, tl.at tlie ix-^V
cannot oi-eratc I'Y ^'f 'I'l"; •
rvant a i'veater estate tluu,
veve.l, out of ^vUie■\l it .<
Ke ha.l "o sueh titlea. K
Oiuere, per Hagart>, J..
the proviso t'.ouVl torm no
on, the .lefemlant might m,t
sewheve to i-i^event suel> u
.aintitt-s personal enntrao nnt
:e«si..u. ^«"<.- V. .Ur( .,'».;,,
Wine Groira-x .■1.«i'.;;.i'hwi, '23
LiXUlI.ITIES OF TlIF, V:VKiU>
.s,,;,jH o/- the Pr<r'-'!l-
entitle.! to take possessiou at
V ,n> default, unless the vj.ht
l\efaulthereserve<l; amlwl.tu
u, thenn.rtgagovhas.hed.lK
^ \„, Letter position han la-
Mo,rot d id. V. Sm.th d ,d., ^
ontinuinginpo98cssi.|n,^te^
fcserves no aueh right, .» u t
tlav^ee f..r rents ai.aimmt.,
2321
MORTGAGE.
232:
wte. Il'"/'^''
Tayluf i' "'•■
{ilivintitrrt niiglit enter, take pussession, and
Hell, i^e. At the trial it was ](riiv('d that defen-
tlant was in dr'^iiit tur Kehniary, Man li, Anril,
,in<l May i-lie install. leiits tur .liim; ami •Inly
Imd lit'eii paid. Defendant (imteiidcd tliat tlio '
nlaintitr.-. could not hik' till sunie ](;iyiiient liail
lieen si.v inniitlis in iirrear ; Held, tliat the (Hiiy
agreeni 'iit in the mortgage eiitithng defendant ,
to hold possession was that proviiling he sliould
hold till default was made in some or one of
the pajineiits in the jiroviso mentioned : tii.it,
tlierefore, tliis proviso could ho at most hut a
rc-deiiMse for tlie spaee of five years, with an
.igret lent for a determination tliereof at any mo- :
uieiit on the ih-fanlts sjiecilied aeer;iiiig ; tii.it tile
proviso as to any default for tiie space of six I
iiiiiiitiis, did not amount to a re-demise ; and that
the plaintill's tiierefore were entitled to reccver.
The Toroiilii I'l riii'iiii'iif lliilliltiiij Siichlij v. Me- \
Cnrri/H (tl., iL' ('. l\ oM. ' I
As to the position and rights of the mortgagor |
under the proviso f(U' possession until default.
See furtiier, ('(tiiuiln I'triinnn iit /liiili/iiiii (iinl Siir- '
'iiiil.i Siiri'fi/ v. /{i/ir-'i, I '.(('. 1'. 47;i p. -.'I'J.") ; ./hiihk
y.'Mcilil'ii,';/, -2^}. H. 1. -)■■), p. ^IWU.
8co also VI. .'?, infra.
instalments, &.C., aiiu
Lgaiust all V''^y'"tt\ei I
n case of default in V;vyi»^" 1
In case oi . ,j,j,jitb5,|
Lns mentioned, loi ''"^ ^1
defendant .1. A. No iK'fanlt liad hccii made on
tlie mortgage. 'I'lii' piaintit*' hail eutenil under
an agent of S. ; 11,1.1, th.it tlie defendant was
entitled to sueecid on the seeouil plea; anil
semlile, upon thc^ third also. Diiinhn v. Ar/liiir
'f III., 14 (.». 11. .-.21.
'I'iie mortgagor of a property with a el.iUMe for
tlie retaining possession until default (such ile-
fault not having taken plaei') is entitled, so long
as tile mortgage itinue.i in force without de-
tanit, to maintain an action for an iniury clone
to tile reversion. A'o./i /w v. Diihwun, 10 ( '. I'.
4Sl.
One K., lieing tlie owner of certain land, mort-
gaged it in fee to tin; Trust iind i.oan Coiniiany,
witli a proviso that until ilefault he shmiM
remain in possession. I'pon his ileatli, the plain-
till's (his licirs at law), during tlie currency of
the mort;,',ige, hrought ejectment to recover pos-
session from a tenant, no ilef,,tilt having been
made on the mortgage : -HeM, that the proviso
for remaining in possession until def.iult made
Would entitle the mortgiigor to hriiig ejectinent,
hut that the right of action descended to the
executors and not the heirs-at-law, and therefore
the defi'iidaiit was entitled to recover. Fnnl cf
III. V. Ji>llr.l, \2 ('. P. 3,-.8.
2. Jiiijli/.^ iif ]\'!i/iiw of Miirfijitiiar.
Where a wife joins in a mortgage, an<l on the
death of the hushand there are not sullicieiit
assets for the payment of all liisdehts. the widow
is not entitled to have the mortgage dcht paid in ,
full out of tlie assets, to the ])rejudiee of credi- !
tdi's. liiibr V. Daiehitni, I'JCliy. li;{; Wli'iti v. ,
ftLVo/o', 15 Chy. 540. !
Where a woman joins with lier husband in
executing a mortgage to secure money borrowed
liV the husb.iud, no piu'tion of which is received '
liy her to her own use, ami after the husband's I
iluatli the land is sold at tlio instance of credi- ;
tors, tlie widow is entitled even as against them '
to 1)0 paid her dower out of the gross amount
R'alized on the sale, to an amount not exceeding
the surplus after payment of the mortgage.
Seuihle, in the event of no surplus, the widow
coulil only claim as any other creditor of lier
iiusliaiid. SheppiU'd v. .Sheppard, 14 Chy. 174,
aiijiroved and followed. In re the EMate of
Uoiiulil iiohiii-ioii, 24 Chy. 442.
The testator devised a portion of his lands,
ffhicli were subject to mortgages, to his wife in
lieu of dower ; the residue of his lands and all
his personal estate he gave to his father, subject
to the payment by his executors of all his just
debts, funeral ami other expense.! : — Held, that
the father was bound to discharge the mort-
gages, and that the widow was entitled to hold
the part devised to her freed from the debts of
the testator. DuiKjey v. Dtin<jeij, 24 Chy. 455.
3. Riijht-i of Movtr/aijor to maintain Action.^.
Trespass, for breaking and entering plaintiff's
house. Pleas — 2. That the house was not plain-
tiffs ; 3. Liberum tenementum of the defendant
J, A., and entry of the other defendant by his
command. The laud had lielonged to one i'.,
who mortgaged in fee to S. to secure a sum pay-
able by instalm ^nta, with a proviso for posses-
!ion by the mortgagor until default after three
mouths' notice. C. conveyed to M., and M. to
146
4. JH'iliin tif MorUjaijco to wniii/nin Aiii'iii.t.
The lirst count of the declaration alleged that
one B. was the owner of certain land describeil,
in fee simple, and mortgaged it to the plaintifll's
in fee, suliject to a pro\ iso for redemption on
payment of ."< 1 , .'l.")(), and interest, by instalment^:,
as speeilieil : that it was provided in the mort-
gage, that I), should not, without the plaiiitilYs'
written consent, cut down or remove any of the
standing timber until the first four installments
of principal, and interest up to a certain date,
should have been paid ; and th.it if default
should be niaile in paying the interest the whole
principal should become due. It then alleged a
default in payment of principal and interest, and
that defendant afterwards, without jilaintitYs'
leave, and against their will, entered on the
land, and cut down and removed timber ;ind
trees, thereby injuring the land, and making it
an insuflicient security to the plaintill's for the
mortgage debt. There was also a count in
trover for the trees. It appeared that tlie mort-
gage was one under the Act respecting short
forms, with the ordinary proviso for possession
by the mortgagor until default, and a cove-
nant not to cut timber, as allegeil. Tlie jury,
in answer to (luestions, found that R. had cut
down the timber, defendant E. assisting him,
in order to sell it and leave the place depre-
ciated : that the damage thus done was §1.50;
and that defendants did not purchase the tim-
ber from K., as had been asserted, believing
that he was entitled to sell it ; but they said,
after their verdict had been recorded against
both defendants on these answers, that they
did not intend to tind E. guilty :— Held, that
the action was maintainable, and the verdict
properly entered against both defendants, the
jury having found them lobe joint wrong-doers :
that the mortgagee was not restricted to his
action on the covenant, but might certainly
maintain trover ; and semble, that, though not
in actual possession, he might, under the cir-
ii
2323
MORTGAGE.
2324
Nf
»«•'''
ouinataiu'cM, inaintaiii truHjiaHH altu). QuitTu,
whutlier till.' tii-Ht L'oiuit wiiH ill ciuio for injury
to iiliiiiitiU'H' rcverMioiiiiry intcregt, or in trcH-
paMM, Sunililc, tliiit it wax in truiii>iuiH ; but liulil,
that it iliHcliiHccl a uikmI caimu of action. Mniin
H ill V. Zi'//,(//(V( ,'/ ((/., 38 ii. H. 2-10.
5, LniHeH hfi Murtija<ior.
Tliu tenant of a mortgagor, liolilin>{ niiiliT a
teanu for yeapH, ituring tliu t'ontinuancu of Ihm
term attorneil to tliu iiiortgageuH, ami after the |
term had expireil eoiitiiiiieil to liolil tlie {U'emiHeH I
from the iiiortga^eeH aa a yearly tenant, ami
when liiH tenancy ccaHed cluiiued from them eer- 1
tain xhelveH and lioxex with which he hail fitted !
up a »ho|i on the premiHeM during the coiitiuu- {
aiiee of his lea^e from the mortgagor, and which i
were not tixturcH, and for which, upon the mort-
gagees' refusal to part with their possession, he !
brought trover : -Held, that the action was
niaiiitainalilc. Ihiiholia v. Tliu Coiinin rrial
Bunk, 1 (i, H. 3(l!».
AVIiero a luortgagoo reeoivoil rent from a ten-
ant of the mortgagor by lease subseiiuent to the
mortgage, but afterwards directed the tenant to '
pay tlie rent to the inortgagM-, which he did : — !
Held, that the mortgagee I'ould not distrain i
afterwards, as he had himself put an end to the
implied tenancy created by his former receipt of '
rent. Lanilurt v. Mdi-.n/i, 2 Q. 15. ,S!). !
Where before the mortgage was given dcfeii- '
dant became a tenant of the mortgagor for a j
year : — Held, that at the end of that time his j
right ceased, and that the mortgagees could eject '
him without notice. The Canada I'crinanent
Buihllnij and Sarimjn Sucictij v. HowM, 19 Q. B.
124.
One L., being the owner in fee of certain pre-
mises, ))y an instrument not under seal, dated
3l8t October, IS.")7, leased them to S. (). , one of |
the defendants, for a period of live years. On '
Slat March, KSaS, by indenture, he mortgaged the j
premises to J. ('. & T. C, the plaintiffs, re- j
deemable as therein sit forth, and on the 8th ;
June, 18o8, by indenture, he again leased for a|
period of live years to S. ( ). Upon ejectment i
brought by the mortgagees— Held, that the in- 1
denture of the ,Slst October, 1857, not being |
under seal, did not operate, since the statute 14 j
& 15 Vict. c. 7, sec. 4, as a lease for five years,
but enured to the benefit of the lessee as a yearly
tenancy ; and no notice to (jnit or other deter-
mination of the tenancy having been given, the I
plaintiffs were not entitled to succeed ; 2. that I
although the indenture of June, 1858, as between '
the parties to it, operated as an extinguishment I
of the original agreement, yet it did not entitle '<
the idaiutitfs as mortgagees to succeed, they \
being no party to it. Oaoerldll d al, v. Ordu ct
a?., 12 C. r. 392.
On Ist Noveml)er, 1856, one S., being seized in
fee of certain lands in two lots, demised the
same to defendant for five years from date. In
Juljr, 1857, S. mortgaged one lot, No. 42, to one
C, in fee, and in February, 1858, mortgaged lot
43 to S. in fee. In June, 1861, C. and S. as-
signed their respective mortgages to plaintiff.
In April, 1860, the sheriff, under execution, sold |
and conveyed the interest of S. in these lands to I
one T., who, in April, 1860, conveyed to plain- ]
tiff. The plaintiff, on 10th February, 1862, sued l
defendant for use and occupation. On the trial
there waM no evidence of notice from plaiiitilf to
defendant that he (plaintitV) was puNscHHi'd of
the mortgage aliove-meiitioned, or of iintice to
defendant by mortgagees or lilaiiitill' to |iay rent
to them or any of them. He (clcffiidiiiit) paid
the rent for the whole term to S. : Meld, Ihut
though no nttornment by defendant was iieccH-
sary to render him liable, still lie could not bu
prejudiced by any act of plaiiititf as holiljug
under S., till he had notice of the mortgage, and
no notice having been given, his payments to S.
during the term were good. MrFiulinir v /In.
</,anan, 12 C. I'. 591.
The plaintiff declared that on the I'Jtli i)ei(iii-
bcr, 1H57, one T. nioitgaged certain lands to
defendant for t'30O, and defendant by a iiieiiin-
ranilum in writing, signed by said T. and defeii-
dant, then agreed witli T. to lease said land frnni
him (T. ) for two years at t'40 a year, wliiili said
rent defendant and T. then agreed hIicpiiIiI lie
endorsed on and taken in part payment ni the
mortgage so soon as the two years mIduIiI iiave
elapsed : that afterwards, in April, IH5.S, il(,i",.„,
dant H(dd and assigned said mortgage to tin;
plaiiititf, and then promised the plaiiititf to pay
him till.' said t'80 at the end of said two years,
but did not nay the same. I'lea, that befure miii'l
agreement 'I', sold and conveyed the laiuls to
one (1., who thereupon gave iiotiec to defendant
to pay said rent to him, and that afterwanls
defendant paid to (1. the first year's lent, and
then gave up possession of the lami to him ; —
Held, on demurrer, that the declaiation was in.
sutficicnt, for tlu^ agrccnieiit between tiic defen-
dant and idaintitf would be without considera-
tion as they could not without T.'s privity
compromise his right to the rent ; and that tliu
plea shewed a good defence. Mitrdlil' \. Wdre
21 y. B. 68.
One L., will! held a mortgage on the pieniisos
from one S. before plaintiff s title accrued, aiul
which was executed and over-due betnri' the
lease by jilaintilf to defendant, notiticd deiVnij
to iiay the rent to him instead of to the [ilaintilf
threatening distress and ejectment on default.
Oefendaiit thereupon attorned to L., and jiaiil
him the 150 : — Held, that such payment ediinti-
tuted a good defence to an action liy plaiiititl'
against defendant for the rent. Fiiii-lmini v
JJi/liard, 27 Q. B. 111.
A mortgage in fee to secure the payuient i
!?!, 400.42, by monthly instalments of sl'J.ti;
provided that the mortgagor shmild lieeiinie
tenant to the mortgagees thenceforth during
their will, at the rent of one jiepper corn iniuith-
ly until default, and after default at the yearly
rent of !?149.04 payable monthly. There was
also a proviso that, in case of default, the
mortgagees, without any previous deniantl
possession, might enter and sell. In ejectment
by the mortgagees upon default against tlio lusset
of the mortgagor subsequent to the inortgagu:-
Held, that no notice to quit or denuunl of ]i()s
session was necessary ; that the combined eli'tcl
of the two clauses was to create in the ninrtgagoi
a (jualified tenancy at will, and to ciiaMu thJ
mortgagees, at their option, either to distiaimi
at any time to eject the mortgagor himself withi
out demand, but that the mortgagor's lessfe, i
having been accepted by the mortgagees a.s tliiiJ
tenant, was not entitled to a demand of jmssesl
siou. If the mortgagor had been simply tciiuiif
2324
I32.T
MORTCJAGK.
l'^'2^>
uitation. On thu trial
u.'ticc from iihiii.tin to
ititV) W;lH IMlMWMW'l "1
,ti..iHi.l. or of notice l<.
,„• ,.\iiiutilV to pay ri'ut
j{c (.l.if.Mi.liiut) vai.l
,,„i to S. : UM, U>ia
,V ,\.:f»ll'»'V">t Wilrt llfOi-H-
U. Htillli" could not I'u
„f i.laiiitilV UH liol.liiiK
•ico. of the inortKivKi^ '^'"l
iv.:u, UiH i.ay'iicnts to ^.
,„„l. .U.F.M/..m V. /i»-
Ithat.mthcl'itlincccm.
vtuaKiMl certain \m>U to
,.1 .kfcu.laut l.y a i.ui.io.
„i,,l \,y Hai<l '!'• i''"' 'l':'^'"-
'1' to'lcasc Hui.l lau'l froni
at €40 a year wi.icli naid
r then agrcc.l slwml.l be
,;i„ part vayn.cut ot tlu!
1... two vi-ar.* Khmlil liavc
,i.mI Hai.l uiortjzane to tli.!
'„„Uca the l.laioftl to vay
tl,e eu.l of mvul two yearn
anie. Ploa, that he ore Ha.l
uvl convey e.l t\.e hm-ls to
u gave notice to .ele.ulant
,>,, and that attcrwar,s
1 the tirat year h ri- it, Md
sion of the hm.l to hnu ; -
thattl>o.lechvrat,onwa.u,.
,reenient between the .Uleu-
[vouhl I'c witliont consLlcni-
TZt without '1' « i"'\' y
Uttotherenf.an.ltha he
acfence. Munhjl y. H "'<■,
da mortgage on the lMvn,i«.B
.hviutitfs tit e accrue.!, . n
.! and over-due l.elore the
: eh;ndant.n..titicdde.c«.hud
i instead of to the vamt,,
Is an.l ejcetnient on dctault
,on attorned to L.. and vf
that such vi^y''r^r"f.;.
eto an action .y I'huntUl
'for the rent. /•'""'.-,•» \,
lee\r. secure the payment n^^
LnthW instalments of ^1..4.,
?e u.rtgagor should hecn„,e
^Hlf-lln a aUhe yearly
ImoudefaultagainstthcW
F^^thaKtSriSi,
8 was to^reatcin ^^^
,"t the mortgagor h.mseMM
that the mortgagor slc.M^.
AgaSl^adbcensinH.lytc,^
it will, Seniblu, that the niortageiw might have
tri'fttecl the leaMo liy him to defendant hhix deter-
iiiiiiatioii of Hiicii tenancy, ('miiiilo /'i nuiiinut
HiiiliHii'/ iiiiil Slll•illl|^ Siiriitif V, Itijin, 1!M'. 1'.
r,x ...
land ileiioM
V, for ttie
tiio lilth of .Mav, for the iiurpoHe of iiaving a
inortgagu tliereot jprejiared, wiiich wanaccordingly
made out and exuiited on tlie .'MHli of tiie .■lanie
month. On the iiroeeding <Iay tiie mortgagor
Mi;ide a leatte, of \\ hich, iiowi^vcr, the mortgagee
liad not any notice. A bill tiled by tiie U'N.tee to
I'cfitraiu (iroceedings at law iiniler the mortgage
wafi dibUiisHed. Mr Km/ v. /Jariilmjii, i'A Chy.
4!t8.
A mortgagor cannot, to the injury of an as-
signee of the eijuity of redcmiitioii, receive rent
iiom a tenant of the mortgaged i>reniises in ad-
•iiiee. Where therefore a mortgagor created a
of the mortgaged proiierty, and gave an
.cr for rent in advance to tlie mortgagee, to
Ke, anil which wa^, alijilied by him in discharge
.if other lialiilities of the mortgagor, who after-
wards transferred his eiinity of redeiiiiition to a
liima tide assignee, without notice of such ad-
v;uice of rent : Held, tiiut the owner of the
.M[uity of redeniiitioii was entitled to li.ive the
ifiuiuiit of rent .so advanced, ajijilicd in jiayment
■ if the mortgage debt, (liliiiniir \. Itm , i\ Chy.
•J84.
See Afr.Vdslir v. ])■ mnii m, 12 Chy. 193, p.
■.'374.
1). l'iijh/-< mill Lidlii/itiis "i' I'lirvlntKirn nf /he
Eiiiulif of R' ill iniit'tint.
On the .sale of an estate, the purchaser ex-
.oiitud a re-oonveyaiu'i by way of mortgage to
tlio vendor, and afterwards sold a pait of the
'lerty, by a deed without covenants, which
lined this clause : —"That 1, the said M.,
ly heirs and assigns, and every of them,
,dl estate, right, title, interest, property,
iaini, and demand, of, into or out of the said
ILUeel or tract of land, or any part thereof, are,
ij, and shall be by these presents for ever ex-
lulled and debarred." Upon a bill by his ven-
lees, the original purchaser (who had execu-
toil the mortgage) was decreed to re-imburse
his vendees the amount they should be compel-
led to pay in order to discharge such mortgage ;
mil in default, a sale of the jxirtionof tlie estate
retained by hini. M (lit la in I v. MvLartij, 1 Chy.
."(i.
The purchaser of an equity of redemption
s'llijeet to a charge which is his own proper debt,
ir which he is under any contract, express or
implied, to discharge, cannot keep such charge
ilive against a mesne incumbrance, which, by
:k terms of the contract of imrchase, express or
i iiiiii'ied, the purchaser was also bound to dia-
' .rge. Blake V. Jifiity iiiitl Bvatyw. Blake, 5
hy, 359.
Irrespective of. the form of the contract
iittweeii the parties, the rule is clear that the
I purchaser of an equity of redemption is bound
1 13 between himself and his assignor to pay off
I the iuoumbrances. Tliuinpson v. \\"ilke.i, 5 Chy.
Die purchaser of an estate subject to his
I vendor's mortgage is bound to iiidemnify the
vendor agninnt Mieh m<»rt«njjo debt. /^^'.< iN v.
/{,>M, r,\...i. 41. Chy.
WliiM'e a imrchiuterof a mortgaged CHt.itc taken
the same .siilijeit to tlit^ veiidor'n niortnage, and
.sells to aiKither w jtlmut paying oil" s.iid mortgage,
he will be .•onipelled to fu'lhl iii.s uiiilertaking to
doHci. 'riiiiM, A., being the owner in fie of a
certain li.t of hnul, mortgaged the same to W.,
and then sold to ( ',, lea\ ing the mortgage to lio
paid by C. to \\. as the balaiiee of the imrcliase
' ley. C. then .solil to I), without jiaving the
mortgage, and default h.iving been made U. sued
A. at l.iw on hi.s ciivenaiit, wlKrciipon .\. then
j tiled a bill against » '. ami I), to |iav oil' the mort-
gage : Ml Id. that A., as surety for"* '..had a right
, to call uiMiii him to ]iay the mortgage to H. ; and
also his costs of the action at l.iw. Held, also,
tliat l». was a pro|irr party wlicre the vendor
sought to enforce his lien on the laml. ./oi.v v.
/>'»////, .-) L J. 141.— Chy.
The assignee of a niortga^'or's interest, through
the medium of a slurill', after tln> niirtg.igc has
. b'jen satislicd, camint lie lonkeil uprii as a tenant
! at suirerauce to the mortgagee. .\ conveyance,
I therefore, made by the ni.ntgagee while such an
I assignee was ill possession, would be void. />tie
i cl, f ((/•(// rl al. V. ('niiilii rimiil, ' ^). 15. 4!I4.
Ujion a sale of land the vendor gave a bond
to indemnify the purchaser against a mortgage
on the land sold, and thereiipoii the purchiiser
j gave a mortgage for t'.'iOO, and paid the residue of
tile purchase money in cash. The mortgage given
by the purchaser was tran.-i[eried to a third party
for value, but with notice of tile prior incumb-
rance, and he sued the jnircliii>er on his mort-
gage, who thereupon tiled a lo'' rlaiming a right
to apjily the amoiint iliie by I mi in discharge of
the [irior mortgage, then due and unpaid. A
motion for an injunction to restrain the action
at law was refused. '/'/(//(/ v. /IrniHiiiri/, S Chy.
'ilil.
A., the owner of lands, mortgaged them to B.
C. then registered a judgment against A. After
the time for payment of the mortgage A. con-
veyed absolutely to 15., who released his mort-
gage, and then conveyed to IJ. In a suit by (,'.
to foreclose under his judgment, 1). claimed pri-
ority in respect of B.'s mortgage over C.'s judg-
ment, on the ground that the conveyance from
A. to B. was in substance a release of A.'seijuity
of redemption, and that 15. still held his mort-
gage against subseipient incumbrancers : — Held,
tiiat in the absence of any act manifesting an
intention that the mortgage should not be kept
on foot, a mortgagee acijuiring the equity of re-
demption would be entitled to such priority ;
but that the release was strong evidence that
there was no such intention here. Biickli y v.
W'ilmii, S Chy. ;")()().
On the purchase of an estate subject to a
mortgage the purchaser agreed to pay otl' the
security, and aubseipiently agreed with the
mortgagee for an extension of time for live years,
agreemg in consideration thei'cof to pay an in-
creased rate of interest, and covenanted that he
would pay to the mortgagee the said interest
(juarterly, so long as the sanl forbearance should
continue, and until the principal money was fully
paid. On a bill tiled to enforce payment of the
incumbrance : — Held, that the purchaser was per-
sonally bound to pay only the interest ou the
'.';iL'(
M()|{T<!,\(;k.
•2:\
i( ' i*
: 3
(li'lit. : Mini lliiii liv (he cxli'inidli i)f liiiii' to tlii'
iniri'liiiNiT, whii li.iil ln'Cdini' (lie |iMi(y |iriiimiily
lioimil In i>.'iy, till' iH'iMiiiiil liiiliility nl tlir iimrl
ua/^nr tlii'ii'tui- li.'iil lii'i'ii (iinili:il\i;i'il. Mullu cw \ .
/hlliinU, IttCliy. I7'J.
I'|1I1H till' H.'llc nl' lilllll SIllljlM't t(l a IllClll;,'!!^!',
tlic vi'iiiliir rci\ I'liaiitcil Id iinlciiiiiily a>;.iiiiHt, iii-
cuniliiain'rs, and tin' iiiircliani'i ^;avi' a iimi-lj'a^r
on till- lanil l.ir luirt nt tlir imn liasc nioiii'y. He
ilt'tt'l'wanli Icanird tlial lu'lori' liin |iiiirliaNi',
tlii'Mf ami olliri' |iii'iiiiNi'« hail liri'ii nnnl^^aj^i'il tn
iinotlii'i' |M'is(in Inr a hiiiu lai'yi'i- lliaii what In'
then iiwi'il. Till' vi'inliir hail hiihi' aHsi^nril the
jmri'liaMiTH iniiil;K'a>^;i' Id tlir ilclVnilant ( '. 'I'hi'
|triiii' nidi(};a;,'i'(' ln'ini; ahnnl. to si'll nmliT Inn
unil't^aj;!' the pri'niisi'.s cnvi'iril hy tin' sci'nnil
nmi'tgaj;!', tin' |iiiirha'<i'f lilcd Iuh hill aj;ainsl Ihi'
awMi);in'i' dl' till' Minldi', ami tin' vrinldr, claiininn
a liylit Id apply tin' annninl dm' hy liiiii in iHh-
i'harj;i' dl the liisl nidilnajii', and tdi' an injiini'
tidii td ii'strain any ai'linii I'di- siii'h anidiiiil until
(III- pnniiHi's hdiiyht hy him slidiild hi' ii'lrasid
tldiii till' liisl mdil;;a)^i'. It did nut ap]irai'
I'h'aily that <'.. tin' aHMi;^nri', was a piiri'liasiT nf
till' nidilxagi' Idi- vahii', hiil. rather that. Im lu'ld
it as I'dllati'ial Nci'iinty I'di- a dcht dm', and the
vcmldr had hi'innii' insnhont. riidiT IIii'nc I'ir
I'uniHtain'cn, an intrrini injiimtidn was j^'ranti'd
upiin paymi'nt nl tlm annuiiil dm' intu iniiil.
Ildi/i V. 'Criiirlon/, lOChy. If.'.
.1. amis., the d\\nri.'<dr I\m> di.itinrt |iai'ri'lN
of l.iml. ai.'ii'i li Id I'vriiaiim' till' diit' hir t hi' ntlnT.
S. s laiiil was .Mnliji'i't tn a iiidili,'a^r, wliiih he
ii^Ti'i'd Id |iay dtl, hilt, did iidt ; ami .1. was cuni-
|)olh'il Id ri'ilci'iii till' saiiii' ; lli'ld, that hi' was
oiitilh'd Id ,'1 lii'ii dii till' land I'diivi'vid hy liini
til S. . as Idi' unpaid piiiihast' iiidiuy, Inr tin'
jiniduntr paid to ri'drcin tlir indi-|j;.'i^i'. S, iii ;/ v.
I'm/i i\ \'2 Chy. ."iKi.
Wlu'ii' twd iniirt)<a^'i's Imd liocn n'oatcd nil a
li'.'ischdld intcri'sl in ii'i'tmy lands, thr >'i|nity nf
ii'di'iiiplidii in w liii'li was jiltcrwards snld at
sin rill s sail' nmh'i' I'diiiimin law piin'css and I hi'
jiuri'hasi'i' paid nil' tin' pridi- iiiditna^r : Ili-ld,
that tho puri'haxi'i' hi'int; lidiiml td pnitoi't tlii'
Uldrtj,'aj,'dr as,'ainst Imtli the iin iiinhiani'i'S was
Mdt athhi'ily td ki'i'p alivi' tho ]iviiir niiU'tjjau'' as
against tlii> scrdiiil nmrtgagi'. Milh^iuiltl v.
liviinohh, 14 Chy. i;!l|.
Ill sui'h caM', till' puii'liasi r, iipnii tin' ixpira
tiiiii 111" till' ti'iin, dhtaiiii'il a iii'W loasi' I'ldin tlii'
Hi'itiir, and I'ri'atid a imiitj;ai;i' nil such now
torin : lli'ld, that ciu'li now loa.so was a inort'
graft updii till' diiginal niio, ami as smh was
siilijoi't td tho niditgago w liiih had hooii lol't
imtstaiiiliiig ; Imt as iintioo nl' that I'aot iimld imt,
uiiilor till' oiromnstaiK'os, ho iiii[mtoil tn tho
mortijagi't' of tho '.low toriii, lio was doclaroil eii-
titloil td pi'inlity. /A.
.\, tho rogis'toroil dwiior nf Wliitoaoro ami
Hlaokui'i'o luiil dtlior lumls, innrtgagoil all to tliu
plaiiitill. Ito tlion snld Whitoaoio tn M., uiiil
iit'torwaiils Hlaikaoi'o til K., oiivt'iiiiiiting in each
C1V80 against all iiicuiiiliiaiU'o.s. 'I'lio vni'idua iii-
Htniinonts woro lospoctivoly rogiHtoroil iuiiiio-
(liatuly rtl'tcr tlio o.vooiitiuu : Hold, that H. 's
right, an liotwoon him ami K., was tn tlirnw tlio
wTiiilo miutgago, and not iiioroly a ratalilu piiit,
oil lUiiokiicro. Juiiiiiy. //(<•/■, ISt'liy. (i7l.
Tiic owiierof land, after luortgagiiig it. asuigiiml
his oiiiiity of roiloiiiptimi to a tliinl party, who
I'livi'ii.'inti'd td pay nlV llio iiiintga^'i' dihl, ;i
afti'iwarilH |iiiiiliasi'il tho liiiiiljiii).;i'd priinisi
iindi'f a doi'ioo at tho suit nl' tho inni|^.|||;,.,..
tho Hido tho aniniiiit roaliHod was imt Kiillioii
to onvor I III' aiiidiint duo tn tho iiidi't;,'agoi' ;
Hold, that iinih'i' tho oiioninstaiioos hr was i
ontilh'd Id any lion nii tho ostato lor I
dolioionoy. /■'niliinw Atlidiiiiiii, I ( 'hy. t 'li.ili
1 17. \ aiiKdu^hmt.
(hi tho sail' nl' hind, suhjool. In :i. piinr nm
g.'lgo hy tho vi'iidnr, lint, thill diio, the vom
odvi'iiantod with tho pnii'h.isir, 1',., that ho I
lint I'lionnihorod tho prnprity, and H. oxoonl
a innitg.'igo hip hisnnp.iiil piirohai o niniioy. '1
inti'iitinii was, thai tho vomlnr shmild |iav t
piinr iiinrtgago, hut ho failod tn dn sn. .Ailn
i iioiamo duo, lio snld and .•'M^;i;;ln■d I'.'s llinilj^;
tn till' phiiiiliir, wild had imtioo nf all tho lur
'I'lio plain! ill' al'loiwards nhtainod an asHi^^nnn
dt III!' iiiinr imii'lgago, and l>. paid nil tho sail
Hold, SIrnii.j, V. C, iliKs., that li. was out il
Id apply dii his niditgago tho iiiiiiioy sd p.'iid
him id tho plaintill'. /Inn/i r.ioii v. /linin,
I Chy ;;•.
.\ tostatdi- hiipioathod tn oaoh nl' his ihildi
! .SKMI on attaiiiiMjj; inaidiity, and tho losidm.
j his pidpoi'ly In his widdw I'di' lil'o, tn ho divnl
j aiiidiigsl his I'hihlroii aoonrdiii;; In hop jmlyiiii'
I dl' at any tiiiio In j;i\i' siioli a pnrtinn in oaoli
i oil hop as sllo thnlluhl ppnpop. l.otlols nl' ^iilni
istratinn woio ^raiitod tn tho w idnw, .■iml .-i|i,',
I nidop tn paiso iiidiioy tn pay logaiios, mnrlMuu
i tho poal ostato, tho oi|iiity nf podoinptinii
whioli was siil>Moi|iiontly snld iindop ovoriilinii
; shol'ill's s.'do, iiiid tho pilPoliasop nhtainod hy i-,
voyanoo fpniii tho appnintoo nl' tho \\ iiln« thr
' simpio in tho land : Hold. I hat tho w ill npi r.il
as a ilo\ iso nf sdiiio ostato tn I ho w idnw , and in;
i hop a tinsloo df tho po;ilty, whioli hIio i,
ohapgod with tho lo).';ioii's ; and th.-it iindri-
I topiiis df tho will and the ppdvisimis nl
I'lnpopty and 'I'liists Art, ('Jll \'ii't. o. 'JS, sir.
tho wiildW had pnwop tn .piato tho innitLjMl
and that tho puiohasop jil shoiill's sale if
; suhjoot thopotd, and was linliml tn pidoilii oil
[ fnpoolnsod. /.iiiitli/ V. Miirliii, -I ( 'hy. |."i-.',
11. snld land tut'., w liii was In pay a iiiml
thopodii as papt df tho piipoh.'iso iiinnoy, .nnl
\ ih'od ilosopihod tho land iis hoing "Mihjoil
inni'tgagi' in favniip nf Mol''. fnp.S'iIMi willi iiiti
I as thopoin niontinni'd ": Hold, in a suit tn
I ininistop tho ostato of ( '., that tho oxooulnis \|
I oiititlod tn opodit flip all inniioys paid liy I
nil aooniinl nf tho innitgago ; and that tlio ii
gagoo w as oiititlod tn pi'd\ o tup tho halaiio
j niditgago doht against tho goiioial ostal
//( ( niji r /'((/•/'«)• V. (.7nC( /•, 'J4 Chy. .")II7.
•V nl
il
Tho aoi'optaiioo nf a ili'oil pooiting tliati
[ipdporty is odiivoyod sillijoct tn a nidPtgiiiT
ntlu'P iiiouiiihranoo iiiijilioH iiii agpooiiioiit
iloiiiiiify tlio giantnp, hut iIooh not i iiiui'
liliiloptakiiig to pay tho doht, uiiloss tho .inj
is iiioliiiloil ill tho onnsiilopatinii and potaiiirl
j tliu vomli'o as ho iniioli inonoy holdiigniL; t|
I iiioiuiilipaiicor. //<.
! A iiiortgagop having lioomno insnlvoi
I ajisigiK'OH Mdlil tho oiiuity of ioiloiii|itinii :
I that the purohnsor wiw not hdiiiul In iii,il<i
I any ilolicieiiey on a Halo to roali/.o tho sir
I See /(•(•;«;/ V. lioi/if, IT) Chy. l.'iT, l>. -.'(•■'I
^€cn;
irMiHIMl \vi>H ii"t SUlll.'l.Mll
,;,/ irl,y.tlM.Ml.
*;,;,t, ii.-u .("<■• ;>"• -■->''"'
I,,., :.,„.l,.r slwml-l ,1
lu. laiUil I" <l" "V '^^ " "
■•',„,, )., ,,,u.\ mm.- s.M..-
UV. //■'
S.,r;:;w ^ 'all. M;;;,;;;
'" ' , , , ,,1- till' \Mi n\N '!"' ''
' . . ,(„lh.'\vianw,iui<>lii:i'l'
ill
,viivisi(iii« >'l' till
1"
stsAi't.C
,T t.
j'l V iit .
.'S, SIM
,'V<
ulr till- nii'vl,i;M-r
111 \Vll>*
,it Hlii'llll's >i:<li' ti
l,„ui.a t" v.Ml>'.;m ;"■
to\iivy auiiiiti;:w
It., ('.. Nvlll. Wl.H
,1 till' \'<1>'
\iiim^ iiii'iK'y
1 till
t\,,. liiii.l iiH I'^'i'^^S
(ivir I'
Itioui'i
ItiltlMll
lii.rt- t.i
V.Hi witiiiiiti'iv'.l
Mil'", lor
i". Hil<l. in iv "»
(',.ti.iatii''>'^''>'''';":':;"'^
ll. til :iil
..lit, tor 1'
ill Ul'
MllVt* |l'>"
kill' HI'
.rlv;!>P
illKl
I liY tln'i"
I tliiit. till' »"'
lll.il lo I'l
lolllio IwiliHi'
iiH"
I tl
K' K^'
lll'l I',
iR'I'il
1 i-AUlU-
ll-
1.1 till
f ll t
liini't' o
liiivcyi''
Iriiii.i' inn
It'Otl
•U'liy.
I'itinj;
iHT.
tlmt th-
l HuLjoi't to a
,\io« an n^n'cnn
tnvntoi".
Imt tV
(ii'S no
irtgii'-i' >'i
nl til ill-
ii-c as :ui
till' <
till- ionnu
»i nnn
loratoniu.il -vtinnnl ^)
U noni'yl.t'l->ii>".^"'""
n- IwiviuK
liooonii!
:,lvOUt lu*
r«.o;':."'5..<;:::i;;K:;k
MllVSl'V WHH
nut l>onn.
oil a
HivUi to ri"
iiliw tl
ll' si'i'
Ik'
,. piiiil I
iinty.
itUon,
ll'Hi
•j:w;i.
.i;vjo
]\1(UIT(I A ()!<:.
2:);)0
7. I! riirf I'll III' Miivliiii'i' Mmii I/.
(a) ll'/i" ((/I Arliiiii ii'ill III.
Ili'lil iloci mil, III' liir tli(i lii'sl insliiliiii'iil of ii
till' ir^l.OOO iHdiiiifii'd to 111' |i,'ii<l nilKlit for M.Im
(iiir|MiMi! lie li'i'iilii! ;iM rt'iil, iiiHi'rvcil for llic. t\v'»
iMiM. .S'. ('. :t'.» (,t, I',. 'JHO.
AIMiiiiikIi llir fart of ,'v iiinrtxa;,'i'c Inn iiij,' oli-
iiior(.|Hii>;c licforc tlic olJici'H ,'iri' iliio. fnrii/t/i 1 1 (.'lini'il ii lin;il order of fori'doniirc cIih'H not |i
'i/ V, Jiiliiiiim ll III., (i < I. S. !(7.
Iliilr it nan iiclcl to li(> iiiidir llii' f.'ii'lM (if lliiM
I'asi" for ail iliHtJiliiii'iit. />• '/'miHw .Mrhmmlil
■ I III., S<,i. II. 171.
< 'ill I'liaiil I'.iiihnl III' siihImIiii'iI on Ilir |ii'iivi.-<ii
lor |iaVMirlil in w Miiir|.y;i;.;i'. .Miirliii \. Wiiiiili,
I'. '!'. ■•liV I \ K'l,.
W lull' (111' jn'oviso ill 11 iiiort,j^a^;i' is ii mom
ili'tVa/Jllirr, Imt, llli'li' in iin ro\ I'limi t (,11 ji.'iy, nilll
no rviilciirc ^iicii of ;i limn iir drlit., nil ai'tion of
• li'lit "ill iio(, lie. Wlicrt' Mii'ii' \H I'viili'iici' of ii
iii.iii or ili'lil,, of I'oiii'Hi' ;i |iroiiii.'ir to rc'|i,iy it. will
111' iiii|ili('il. l/iill y. ,1/i</'A//, St,!. |{. .-i.si,
liliii lillii fioiii siiiii;^ for tlio iiiort;;.ij.;i' liioiiiiy,
Mt,ill ilvoiilil Hi'i'iii tliiif IU{- iiior(>; 1)^111' i.i not
inlirciy li"l|i|i'ss, jin lie ni.iy oiler to |iiiy t,ll(!
iiiiirl^;;i;.,'e, ;iiiil if (he niort^.'inee ileelilieM rei'eiv-
iiiL; llie nioMeyllie court Would leMlr.iiii liiiii from
iifli'ru;irdn Hiiiii;,' lor the inortfjaj^i! lielit. Mini-
.1111 V. //iim.i, O'J ( 'liv. •J7!l.
(ll) /.'/■;//(/ Ill mil ill Ihi irltnl, uii D.finill.
llefelldlintM. I!. * S., Willi (wo otlierx, I,, .t
II .ili^.i^-eil 111 (he jiliiiililV 111 Heeiire C l,(MH>
mill iiiteri'Ml, liy whieli il, wjih ,i!.;re('d (li:it if
def.'iiill. .'should lie iii.'ide ill liny |i;iynii'nt, .if in
Oi'fciidiinl, ill I Hidei'atioii of .S.'iltO .leluiow- |,erent., for t lie (ni iod oC iiioi'iMi .-ater il, hIioiiIiI
lednt'd to 111' |i.iii|, MMHi^jlied to Ilic |iliiiii|,i(r ii have 1 iliie due ";iiid lieen dilii.-iiided, " (hell
iiiiirtKaj^'e fill S.'idO, with ji |irovi.'<ii th;il llii';iKHi;.;ii |he whole |iriiii'i|i;il imiiiey ninl .siuli iiii|i.iid iii-
uieiit . ■should lie Mild on ji.iyiiieiif of the .'-;."i:i() and |eies(, slinidd iininedialeiv lie |iayalile, 'I'lio
iiileresl, lull, no eoveiiiiiit (o |iay: I li'ld, iillirni |ilaiiil ill' Hiied defeiid.-ints alone ii|iii'ii tlii.i iiiort-
iiii; the I.ihI, eiiHc thill, no iielion ild lie main ^;.ii;e for t he |ii'inei|i.il and (he inleri'.st, iiiaUiiij;
lailied on Mn ininiin eomils, I 'mler Hie f.iel.M, im men I ion nf I he other iiiort;iiii;orH, iiiid ;ille>,'ed
hiiweM'l', 11 new triiil wii.m iillowed on |i,iy lit of in the deelaiiit ion that, llion^di iiii iiiMliiliiient of
iiistH. /'iiirnimi y. Ihtlinul, :!.'l. *}. Ii. 'JO'J. iiileiesi «a.-i overdue, .iiid alll.oiij.di |iayiiienfc
Meld, lint the lueie Munis ,11 Ihe iinivisn of a l!"''''';' ''^"' '"'-■■i 'I'^'Maiided In, ,i ilelei,d,ilii.s yet
,i„,rtKai;i' "in three eipial |imv n(s tl.lie n'.si.ee- '■''^\'' ^^''^ ''■^' ""': I'i'"' "' '"" "l"', "",""'' """'■
liielv made," did nut erea(.;' ii euveieint to nay , """''' "•i"';"!-, A deniind on de endants wim
Ihe amount i.|''''il""l- •/"■/-" v. )• ,.,». I!) I""V"'' '"'•• ';"'-"• I"' "Miers : Held, tliiit a |ile,i
, |i ..,|| iiy ileleiiilant S., that no deimiiid win' made on
defeiidaiitM, aiidoii ll. iS; ll.wiisliaij, fortheiitlu'l
Where the inortj^'a^je eoiil.iiiis only a |ii'oviso iiioil,L;:i^ors not lieiii;^' Hind, and deleinia.iit.s not
jiir makiiii,' it void on |iayiiient of the morti.;aire haviiiii |ileiided in ahati'ineiit, it wa.s Hiiljielent to
money, and a |iroviso to sell ami ejeet on dehuilt, |irove a demand ii|iii|i defendants only : Semlili',
iiiit II veiiaiit to pay, no lialiilily (o pay is that siieli aeiiven.'int is imt to lie louUed iijion in
•lealed liy mere |iroiif o| the iiiiirt^ii,i;e : there a eiiiirt of law as a peii.'ilty, Imt merely as li.xiii),;
imisl lie eviile'iee i^iveii ol a loan or delil, t he eredil to lie .'illowed for I he p'ineiiial: Held,
.lii,l:.inii ll II.I-. v. )'iiiiiiiiii.i, "JS <,l. 11. ,'107. also, (hat the plaintill was entitled to siieeeeil
, ■ , , on the iile.i of defendant I'., that no demand w;w
A mere promise to p.iy siieli iiionev in eon- in i i- n i i , i- i »
, , ,• 1- 1 ' , I'l . 1 made as allej'ed, lor the denru.d on deleiid.ii.tH
-11 elation ol lorlie.iranee to sue mm d not le in i ■ n i i .■ /•
, ,. ,1 I ■,■ ■ -i . • .■ , w;is iiiiiveil, as alle''ei| 111 the deelaration. ('lu,:
liinillll", tlioii;ill ll 111 eolisliler.itloii e. lorlie.'irii.i' ,, , , , ion i, - lo
,, . '^ , , I , if I 1 .1 , ,1 v. Illllliill I I III., lit (,). Is. .ill).
1.1 sell or ejeel it would lie : Held, tli.il llilhis
,';ini' the evidence of such latter promise w;is in. The pl.iinlill' held di'fciid.'int's miiil;.;,'|..;e, with
^.itisfiietory ; and the jury h.ivini; found for the a eoiidilioi, that the whole piiinipal should
liliiiiitill', a new trial was j^ranted. /A. Iieeoine pay.vlih^ if the interest was in arrii.ir
, . , ., , .1 . I ,• 1 , tor ten days, liy aureemeiit hetweeii them plain-
(hi a new tna it •ipp.'ared Uiat de eiidant „„ ,|,,,„. ;,„ adi'mlaiit lor the inter, st (at three
li;.ai,« |i>'nl'a';;;l land Inui. the plaint, I tor ,,, .^. ^. ,,,, ,, ,.^,^^, ,, ,^ ,„^|,„.., ■^ |„,,,,^,„„ ,,„
"^li.tKO, nan !?()(! I down, ami nave a moitiiiU'" r , , i-i .. r .... i i .i ■ .ii- .. i;.
',',', ,. .. ,..' ,,,,., .. , . , '^ " which dratt was iliscoiinted liy plaintill at lil.s
;'""'^: '^'"^""•'' "' '^•V • ■^'.'" ''' .V;:J: "Ti"' •■•^"I'. ••^'"> the proee..ds placed to his eiv lit prior
lir paid on an event speeilied, M,0(M xntliin ^„ ^,„, ,, |,,,,,i,' f the ten dr,s, and w.is ,ifter-
tlii'i'c iiiontliH, anil the reinamm;,' >.|,(MM( in ...... > •
thi'i'
i-ec lii,mll..s. ami the reinammK N .<MH. ,n „.ar,ls a.'.Vpt.'d hy delViidant; Imt upon maturity
I','.. e,|iml piiynients ,1, SIX, nine, and twelve ^^..^^ dishonoiind and .harKcd to plaintitV'«
,i,ths Irom the .hit.' ol th.' inoit^an.' : Lut t le ,^,.,.„„„^ , ,,„,,,_ j,,.^, ^,,|, „.,,^ „„ ,„^,.,;„.„t, aii.I
il^aKc .•onlain.'d no covenant t.. pay. I .,■ ^,,^^t ^|,,, ^^.,,„,^, „„„.t ,„ , ,,,,, a,,,.. r„wi-
I .....'I..... 4 ..4 Ikl.lJ U I tC'iu I 1.1 •111. I .. t ( ..■■>i>ri ■•.■..■ . f ■ ~ . ''
iir.l payni.'i.l ,if 15 ♦( HI was ina.l,'. and afterwanls, ,.,,,, ^, ^.^^^ ,, „, - ,, ,. .,j^,
III .'iiiisi.leration ot the plaintill lorliearm^ to
ukc any pioceediii;^s on th.' iiiort,j.;a^'e for two II. 'Id, that lookin|t{ ut till! form of the mort^iixc
iiiiiiillis, .lefeliiliiiit promiseil to pay III.' .'Sl.lMIO in this .ase, (wliii'h provided that on default ill
then ovei'ilue. 'I'll.' lilaiiitiir, having; wait.Ml iic- |iayiiieiit of Hi.' interest the priii.'ipal shoiiM full
'.ir.liii^ly, aii.l loft .lefeii.lant in )io.sseHsion for .In.',) ami the .leclaration, th.' plaintill' was not
thiit time, sue. 1 upon this iiromis.' : Ilel.l, W'il- entitl.'.l to a \ei'.li.t for the whole iirincipal, for
*|iii, .1., ilisH., that he eoul.l not recover, for that the ileclaration .lid ii.it clearly slu^w that he WiW
lliu pi'oiiiisu, which wa« v.M'lial, was a .'oiitra.^t ilaiiniiig it hy r..a.soii of noii-payineiit of the
ii.r III! interest in laii.l, within se.'. •\ of tin; Sta- ilit.'rest, and h.^ wat* not lioiind to sue for tho
tiitc of I''|'iiii.1h ; ami that if it am.miitu.l to a wlmle ainoiiiit ; t^iiar..', there liein;,' no .lay
lane it wivH not oin; within ho.'. 'J, ho iw t.i ho iiamo.l for iiaymoiit of tho int.'i'oHt, when w. mid
;;iHiil without wi'itiuK. I'or NN'ilsoii, ■!. - The thorn ho ii .lofaiiltso as to imiko the wlioio iiriiici-
.(jrwiiiunt wiw a ilumiHu, ami within sec. 2, uiid , pal duo. Xin-tlnii v. Tniiin nhiiti i-,',Vi(i. iJ. 421).
lljii:f
1
:Mf'
2331
MORTGAGE.
2332
A mortgage to secure a sum of money by
instahneuts, -with interest in the meantime
(luarterly, stipulated in case of default in pay-
ment of the interest within ten days after any
of the days or times when the same was made
payable, ni any year, that the wliole of the prin-
cipal money should l)ecome payable iunnediately,
and the mortgagor covenanted to jmj' the same
accordingly : — If eld, that this was in the nature
of a jjenalty only, and that an action to enforce
payment of the whole sum due, after default in
one gale of interest would be restrained. The
mortgagee, by arrangement between the mort-
gagor, iiinifielf, and his assignee, ilrew upon the
mortgagor for a (juarter'a interest, but for some
reason not accounted for the draft was not pre-
sented until after the ten days, when it was
accepted, but owing to some mistake it was not
paid at maturity. The holders of the mortgage
insisted upon this as a default making the wlKile
mortgage nK)ney due, and and proceeded at law
to enforce it : — Held, that this relieved th^!
mortgagor from tendering the next (quarter's
interest wher. it became iluc, and tliat the mort-
gagee, or his assigns, could not insist upon that
default ill answer ti
(c) Interest.
proceedings at law.
S59.
a motion to restrain the
Kiuijip V. ('(iinerou, G Chy.
Where bonds were gi'"eii to pay a certain sum
and interest, in twenty years, and also mort-
gages of lands, redeemable in ten years, as
security for the payment of the principal money
of the bonds : — Held, that a breach of the cove-
nant to pay interest on the bonds did not accel-
erate the right of the mortgagees to proceed
upon the iiKjrtgages ; but they were entitled to
a decree for sale of other bonds given as collateral
security, (rraif ll'i-ntmi Jl. \V. Cn. v. Oidt ami
Otielji/i J,'. II'. Co., 8 Chy. 1'83.
The rights of mortgagor ami mortgagee ai'e
recijjrocal, in so far as the right to redeem lieing
shewn the right to foreclose is thereby estab-
lished ; altliough the identical conditions attached
to the one right may not be attached to the
other. By the terms of the proviso for re-
demption in a mortgage, the in-incipal money
was to remain unpaid so long as the interest
reserved was paid at the days and times specified
therefor ; but, in default of payment of the
interest for a period of six months, then tiie
whole of the principal money should become
due and payal)le : — Held, that a bill to foreclose
wouhl not lie for any default in payment of
interest for a shorter time than six months,
although, iis it fell due, the interest could be
collected. And, (,tua're, whether in such a ease
the mortgagor would have tlie right to pay the
princii)al money against the will of the mortgagee
by giving six months' notice, or paying six
months' interest in advance ; or whether he
could take advantage of his own default in non-
payment of interest for six months, and claim
that as the condition on which he was at lib-
erty to redeem. But, semble, he is bound to wait
until the mortgagee insists on tlie default as
giving him a right to foreclose before the right
to redeem arises in favour of the mortgagor.
Park-ff V. The Vine (iroinrn' Asmciation, 23
Chy. 179. I
See Trimf nnd Loan Comimni/ v. Drennan,
Ifi C. P. 321, p. 2340; McLanu v. Miller, 20 '
Chy. 037, p. 2332.
Covenant to pay £292 in eight equal annual
instalments, " with interest on the principal
sum remaining due at each payment" : — Held,
that interest must be i^aid with each instalment
on the whole principal money unpaid, though it
might not be Uicn payable,— not on the instal-
ment only. Jlall et al v. Brown, 15 Q. B. 41(1.
Where a bill is filed to foreclose a mortgact
' payable by instalments, and defendant mov^s to
dismiss on payment of the instalment and in-
I terest then due, the interest upon the mortga"e
i money is only to be computed up to the (la\-
; named for payment in the mortgage, ami not to
i the time of making the application. Sh-nchini
j v. MnriHii, () Chy. H78.
i A mortgage made payable by instalments.
' with interest (m each as it became due, contained
a stipulation that if any of the instalments should
remain unpaid for the space of thirty days after
I the same ))ecame payable, that the whole prin-
I ciplesum, with interest remaining unpaid, should
forthwith l)ecome due and payable. Default was
\ made in payment of some of the instalni»nts :
the mortgagee, however, did not call in ( ,st
upon payment of the whole sum remain, un-
paid, Ijut continued to receive pa;ynneiits frrini
I the mortgagor on account. ( )n a bill to redeem
the mortgngee claimed to be entitled to cliaix'e
\ interest on the whole sum due at tlie time of
I each payment, in consequence of the default
which had occurred : — Hehl, that he could claim
, interest only cm each of the instalments as it
{ became due, according to the terms of the proviso
: for redemption. MeLann v. Miller, 20 Cliy. (;;57.
I A written promise by a mortgagor, after de-
fault, to allow more than six per cent, interest
reserved by the mortgage, was held Iniidin",
though there did not ajipear by the writing t(p
have been any eonsiileration of forbearance or
otherwise for such promise. Broivn v. Jjinem,
12 Chy. 108.
A parol agreement to add two per cent, to tli^
rate of interest reserved by a mortgage in i.(iii
sideratioii of an extension of the time for pa\
nient, was — Hchl, insutlicient to charge tin
extra interest upon the land. Totten v. Il'd^n/,
17 Chy. 2.33.
Wiiere a mortgage stipulated that up to a oei ■
tain day the interest should be eight per cent,
and if the principal were not then paid, twelwi
per cent, should be thereafter charged ;— Held
that the stipulation for payment of twelve pf
cent, was not by way of penalty, but an agrei |
nieiit to pay tliat rate from the day nauied
Waihhllw McColl, UCiiy. 211.
A mortgage dated 10th October, 18(1(5, proviiki:
for payment of the principal in three years, aii.|
interest meanwhile at twelve per cent, lial;
yearly, on the Uith of April ami Ctctober in evi.i\k
year; and declared, tliat to secure piciiiiiit p:u I
meiit of 'iaid interest the mortgagee would takJ
at the rate of ten per cent, it the iuteivst \\.\\
paid (ui the said 17th day (tf April and (ktnlKf
respectively : — Held, that the first reference t|
tl'.e day being uiietiiiivocal must govern ; tliaf
the interest was due on the IGth ; and not liaviiij
been paid then, that a bill on the 17tli to fiiiv
close was not irregular. Bennett v. For{iiHui\
15 Chy. 117.
2332
crest.
in eiglit equal annual
erest on the l.ni|c.iial
each vayment" -.-Hel.
iid with each instahnent
,iouey unvaia, thimgh it
Lhle —not on the nistal-
V iiro."», 15Q.B.4l«,t.
to foredose a mortgag*
au(\ aefendant movo=s to
the instalment and ni-
.tevestuiHmthenu.vtgagr
iomimteA ur to the day
the mortgage, and not ..
he api-hcation. Sfmrh'i'
I.
payahle hy iustahnents
iithecamedue.contauied
y of the instahuents should
space of thirty davs after
able, that the whole prin-
,t remaining unvauhs^jouW
andvayahle. Default ^xa^
some of the anstaln-vntH ;
,-er, .lid not call in ' '^
■ whole sum remam^ un
to receive pa.vinents from
,onnt. on a hill to redeeu,
e to he entitled to charg.
le sum due at the tune ...
'onseciuence of the defauh
'.Held, that he could clam,
ch of the instalments as it
ncr to the terms ot the i.roviM.
,ll,n-»v.3/;/?.r,-20Chy.(.o..
se by a mortgagor, after .h-
. th'Ui six per cent, mtertst
UlZ'l ^vas held binding.
^^^;il.eav by the writing t.
sidevation of forbearance <.,
promise. Bron-n v. J>'^"<-^''^
2333
MORTGAGE.
2334
t
ut to add two per cent, to tlu
Tvcd by a mortgage m cHi,-
Intension of the time tor i.u-
■^ insutticient to charge tla
the land. Tothnv. II «(.^o»,
trc stipulated that up to a ccr-
^stshouhl he eight per coll..
al were m.t then paul,t^vc^.
e thereafter charged :--Hcia
n for payment of t^velve i.cv
^•ay of penalty, hut an agree-
T rate from the day ."luuca
', uciiy. -ill.
Ed U-.th October, 18(115. provi.kM
T\i;iiipal in three y^rs. an
1.. at twelve per cent, Hal'
h of April and October 11. cvc^
id, th.\ttosecureprouip V
'"reU the morti^ugce ^^ollld talu
•n iier cent, if the interest v.. >
A mortgage dated 23r(l May, 184fi, secured
the payment of £112 lOs. without interest, on
or before the 23rd May, 1847, contained a power
of sale on default of payment, and provided that
the mortgagee, after deducting the costs and
expenses of sale, "and the said sum of £112 10s.,
without interest," should pay the surplus to the
mortgagor: — Held, that interest was payable
from default. McDoneU v. Wi'M, 14 Chy. 492.
During the lifetime of a mortgagor, the mort-
gagee has no lien on the pro})erty fcir more than
H'X years' arrears of interest, though lie may
have a personal action on the covenant for more ;
but, in this country as well as in England, after
the mortgagor's death the mort^'agee, to avf)id
circuity, may, as against the heirs, tack to Ids
debt all the interest recoveral)Ie on the covenant.
Carroll v. liulicrtson, 15 Chy. 173.
A bargain for extra interest made between a
derivative mortgagee and mortgagor inures to
the benefit of the original mortgagee. Oniliniin-
v. Amh'r.ton, 15 Chy. 189.
In. eijuity a tender by a mortgagor stops in-
terest, unless the mortgai'ce shews that the
money was afterwards used by the mortgagor,
and a profit made of it. KiHipp v. Bowtr, 17
Chy. 695.
Former practice in respect to computation of
3ubse(juent interest now altered, excejit in cer-
tain cases. Subse.pient interest slioulil be com-
puted upon the aggregate of principal, interest
aiul costs, which the puisne incumbrancer has
paid for redemption money. Upon tlie principal
money subseciuent interest should be regulated
hy the rate fixed in the mortgage security; upon
the interest and costs only statutory interest
should be computed. McMaifi-r v. Hector, 8 L.
J. N. S. 284.— Boyd, Maxtvr.
A mortgage had been created by a married
woman upon her estate. After her death a suit
was brought against her Inisbaiid and her chil-
dren ; and the court in directing a sale of the
mortgage property, refused to make the estate
of the children liable to arrears of interest for
more than six years ; but directed payment to
the mortgagee out of any excess after iiayinent
of principal money, costs, and six years interest,
of so much of his balance jvs would represent the
hushaml's interest as tenant, by the curtesy in
such 'jalance. Tdi/lurv. Jlartjravi', 19 Chy. 271.
A mortgage had been transferred to a trustee
to secure certain notes of the mortgagee, one of
which, after several ycar.s, waa found in the
Iwiiila of the assignee of the mortgage, and a
suit having been instituted upon the mortgage,
by the trustee and the party interested in tiie
note, it was — Held, that to the extent of the
amount remaining (hns on the mortgage, inclu-
ding six years' interest, the party heneticially
interested was entitled to recover the amount of
the note and interest for the whole period tlie
note had run. Scalclttrtl v. Kii'ly, 22 Chy. S.
See Ford v. Alloi, 15 Chy. i>(;,-), p. 2.359.
(d) Offirr UdKPi*.
The court refused to interfere in a sumniarj"
maimer to stay proceedings in an action of cove-
n»nt on a mortgage to secure money lironght for
the beiietit of an tusiguee, though it was shewn
that the mortgagee had signed a writing not un-
der seal, by which he acknowledged that the
instalments mcnti.med in the mortgage were for
a larger sum than was really due. Bain/ v.
Milne, 5 O. 8, 7(j.
Defendant being indebted to plointifT, by an
indenture reciting his indebtedness, ami that he
held .-vgreed with the plaintiff for tlie repayment
of said sum due within six months from date,
with interest, conveyed to plaintitl' certain lands,
habendum in fee. Proviso, that plaintilf, if the
debt was duly paid, would re-convey ; but there
was no covenant for payment by defendant. En-
dorsed on the indenture was a deed poll execu-
tec' by plaintiff, stating the said debt thereby
secured to be the proper mfniey of one .1. L.,
and that the plaintiff's name was only introduced
therein as agent for saiil J. L., and in consider-
ation of the trust, ami of ."is., he absolutely
.assigne.l all interest in the lands in the s.aid in-
denture, .as well jis the indenture, to the said
.J. L. Oil motion to set aside nonsuit : — Held,
that it was not open to defendant to deny that
he was at the date of the said indenture indebted
to the plaintiff. Alliiiitt v. Riihimt, 11 C. 1'. 300.
Action l)y the plaintiff, administrator of M. ,
.against defendant on his covenant in a registered
mortg.age to p.ay M. the amount due tliereon.
Plea, on eouitable grounds, in substance, th.at
the plaintiff told defendant before the instalment
sued for fell due that he could not find the
mortgage, and defendant then informed him th.at
he would be prepared to pay when it fell due :
th.at when he received notiee of this action he
notified the plaintiff's attorney.s that he was
prepared to pay on production of the duplicate
copy of the mortgage, which w.as held by M., or
on proof of the los.s ; and th.at he w.as and is so
prepared ; but plaintiff refuse<l to shew said
copy or furnish any proof of the loss. The plea
.also averred that the testator had m.ade a will,
ami .appointed certain persons executors, who
had iiossession of the will ; and defendant sub-
mitted that he was entitled to such duplicate or
proof of loss, .and .alleged that he w.as prejiared
to p.ay or deiiosit the money aa the court should
direct, to be jiaid over to plaintiff on such pro-
duction or proof :—Hehl, plea bad, for it must
be assumed th.at the mortgage was recorded at
leuf'th ; no assignment either directly or by de-
posit was averred ; aii<l under the Registry Act
defendant would be fully protected on payment
of the mortg.age and recording the discharge ;
and the alleged will was not s.aid to be v.alid or
existing. .lAnvn^/c// v. Boijle, 25 C. P. 239. —
Hagarty, sitting .alone.
8. Agreement to Rvlvajte in Portions.
A mortg.age contained a covenant to release
.any land sold during the continuation of the
mortgage upon the payment of £200 per acre.
An assignee of the mortgagor made a general
payment upon the mortgage, and afterwards,
upon selling a portion, ilemanded a release from
an assignee of the mortgagee : — Held, that the
l)enetit of this covenant would pass to an assignee
of the eijuity of redemption, but that the mort-
gagee must receive the stipulatol sum per acre
uiMui the sale of the portion to be released ; and
no general payment on the mortgage would be
sufficient Wthl>er v. O'Xeil, 10 Chy. 440.
2335
MORTGAGE.
233
Wliero ft mortgage provided that in coses of
s.ile the inortciigee, on receipt or tender (>f a,
certain proportion of the purchase money, should
release tlie ])art wold from the mortgage : — Held,
that tiie lirst person who thereafter purchased
and jiaid to the mortgagor his purchase money,
but ol)tained no release from the mortgagee, was
not entitled, as he wouhl have been in the
absence of this provision, to pay oil' the whole i
mortgage, and to demand i)ayment of the whole \
from a subseijueiit jjurchaser redeeming him ; i
but that eacli jiurchaser (including the first), was
entitleil to reilcein his own part on payment of j
the stipulateil j)roportion of money. JJavix v. '
II7((7(-, Hi Chy. 312.
!). SjHcii'l CoivHctnU (inil CnndUionx.
One Mcl^wan conveyed freehold property to the
the plaiiititf in fee, with a jiroviso for avoidance
if McEwan should board, clothe, .and provide all
necessaries for the plaintitl' for his life, or in the
event of his desiring to lioai'd elsewhere, then,
McEwan shouhl p.iy him yearly t'1'2 while he
shcnild remain .away. The plaintitf boarded
with the mortgagee till his deatli, .and afterwards
(for some tnne) with his widow and devisee, the
defendant. He then left, but after a time
returned and demanded to be boarded. Defen-
dant refused to take him back, saying that he
should j^'et his £12 and no more. The pl.aintiif'
then cl.anueda forfeiture, and lironght ejectment :
— Held, that the mortgage operated as a convey-
ance in fee \\\i\i a proviso for the cesser of the
estiite granted on the performance by the grantor
of .an alternative condition, with a right of re-
entry in the grantee as owner on non-iierform-
ance, and a right of possession until default .as
ijuasi tenant for the life of the grantee. Ami I
that the jilaintitf having left was not entitled to j
come l)ack when he ilemanded to be received, j
but became entitleil to the monej' p.ayment, and [
therefore there was no default. Hichartls, J., j
diss. Malofh v. McL'imii, 'J C. V. 407. j
Defendant owing the plaintiffs a large sum on |
bills of exchange, some overdue, some maturing,
gave them a mortgaj'e on land, reciting the debt I
on the l>ills and tlie plaintiffs" agreement to I
aceei)t further security by way of mortgage, and j
containing a proviso that it should be void on |
the payment of the bills, and a further proviso (
that on default of p.ayment for twelve months j
the plaintiff might, on giving six months' notico. '
enter and sell the lands. The mortgage also i
eontiiined a covenant to pay the bills. In an ac- !
tion on such covenant : — Held, that the proviso |
as to default and notice applied only to tlie reiiie- I
dy against the lands. Defendant in his plea, |
after setting out the mortg.age and proviso, aiul j
averring that the plaintiff had not given the six i
mouths' notice, concluded, ".and so the defend- j
ant had not made def.ault before the eommenee- i
ment of this suit." Held, tliat as the notice was
unnecessary the plea was not proved. Tln^
Gore Bank v. Entoii, Ti Q. B. .332.
A mortgagee, with power of sale, covenanted
tliat no sale or notice of sale should be made or
given, or any means taken to obtain possession
of the mortgaged jiremises, without three months
notice to the mortgagor, demanding payment : —
Held, that such notice was unnecessary Ijufore
tilini{ a bill for foreclosure. Lamb v. McVormack,
6 Chy. 240.
On an advance of money on the security r
real est.ate, the lender cannot bargain for th
purchase of the property at a 8i)eciHed sum i;
case of default in re])aying the advance at tli
time stipul.ated. FitUi'r v. Kciikiii, 12 (.'hy. .SSS
A mortgage, p.ayable m ten years, containei
a proviso th.at if the mortg.agor mortgaged o
otherwise encumbereil the premises, or suffers
them to become liable to sale for taxes, thi
mortg.age money should become immediateb
pay.able : — Held that an assignment in insui
veney, though voluntary, was not sucli mi
incumbering of the est.ate .as entitled the inort
gagee to call for the mortgage money. .l/''A"i/i
v. McFarlane, 19 Chy. 345.
11. Jfortijciijei' ill PoA'ies.viin.
(a) LinhUilii to iircuuitt for Nciil.^ iiinl Profits,
A mortgagee taking possession, and evicting ,•
■ tenant of the mortgagor whc.is willing to reniiii
and pay rent, v.ill 1, held .account.d)le for tlu
rents from th.at time. J'l iin v. Lockiruoil, 1 t'liy
547.
In t.aking the accounts in the m.aster's oifico il
is improper to charge a mortg.agee in possession
with annual rests on rents received by him until
he is paid off in full. Culdinll v. l/al/, !» Cliy
110.
The principle upon which a mortgagee is liable
to be charged with rents not actually receiveil
C(msi<lcred. //;.
The Statute of Liniit.ations forms no bar to ,i
claim against a mortgagee in possession for occu-
pation rent. ///.
If a mortgagee retains possession of tluj
property after being paid in full, tlie gcner '
rule is, to charge him with interest and rest.''
resi)ect of his subsecpient receipts : a fortii
such a charge projier where a mortgagee re
the mortgagor's right to redeem. ('rijiiKii
Oi/lvi,', 15 (,'hy. 5()8.
n ii
iisti
tv
After a treaty with A. for a loan on land, tli
owner conveyed absolutely to A., receiving ha
a bond conditioned to re-convey the ]ir(iinr;
on payment of a certain sum at t' e end of
years, ami made def.ault in such payment. On
re-hearing the deed was declared to have he
made .as security only — the bond to reconv
containing an under^-aking by the vendor to
the stipul.ated amount, .and it ajjpeariug (liattl
v.alue of the property greatly exceeded tlie .su
paiil for the alleged purchase thereof ; but iiiul
the circumstances the court charged the iikh
gagee with sucli rents .anil profits .as were actuidl
received, or an oecupiition rent, if in aotii
possession ; not with such rents as might li
been received, and allowed him for repaii-s :
permanent improvements. Uiilleii v. Jtmirid;
Chy. 202.
In a redemption suit by the second mortgag
ag.ainst the first, it appeared that the e(|uity
redempti(m had become vested in the fir
mortg.agee, ami that he had entered into [iiisst^
sion, and h.ad cut and removed timber to agre.iti
value than the amount dne on his mortgage :f
Held, that he was only bouiul to account forti
value of such timber and occupation rent as w|
taken or received by him as mortg.agee, not [
233G ^ 2337
,,eY on the security o{
cannot bargain for the
.mil the advance at the
,„ tenyearB,coutvVnea
„„vt.'aUor mort^age'l m
^ premises, or ««tter..l
V «.vle for taxes U..
la become nnn.e.liatLl>
vn assig'""'^"^ >" V"*"^-
:. vv WV8 n.it siuh an
Seas'^titledthemovt-
mortgage nu.ne>. -" '^ .'
. 345.
MORTGAGE.
2338
„ possession, an.! evicting :i
^^hcWacc.mnt:a.lcfor he
Anuv. i-«'<•^•"■"<"'>^'^''^•
mntsinthenlaster•^olficeit
^-^-^^:^^''^^
retains nnsscssion of the
i. „ ,1 in fnll, tiie general
•ijrht to retleem. <"i'i"»^'
t-ith \. for a h,an on hma the
Icertam sum at t . - eii i
u the b(m.l to re-eouvey
JerSii^^l^ytl^even-lon.,^
erty greatly exccuit^^^^^^
->Sanavro.itsas.ereacU>2
I -f i.v the 8ec(nnl mortgagee
Iras only uouiiii ^^.^^
Lber and "^enpat '^"^
led by him tw mortgagee, j
owner of the equity of redemption ; Init that the
second mortgagee might ask for u receiver.
Sliinliojl' V Jiroirii, 11 Cliy. 114.
The holder of a mortgage went to reside with
his sister, the widow of the mortgagor, upon
the mortgaged premises, but asserted no claim
or right to possession as mortgagee until some
years afterwards, when the widow, being about
to marry, desired her brother to leave. The
brotlier was charged with occupation rent from
tliat period, not from the time of his going to
resiile on the property ; and such assertion of
light had not the ellect of referring back his pos-
session to the time wlien he first acijuired the
ii"ht or went to reside on tiie property. Paiii
V. Jdlni'ioii, \2 Chy. 474.
Where the plaintiff, a mortgagee, is in occupa-
tion of the mortgaged premises, the master
shonlil charge him with occupation rent up to
tlie day a))pointed for payment ; so, where it
^ippeared ttiat a mortgagee under snch circum-
stances had been ehargeil witli occupation rent
.iiily to tlie date of the master's re])ort, anil had
since continued in possession, the final order for
fdieulosure was refused. Pipe v. Shaj'ifi; 1 Chy.
( 'liamb. L'ol. — Spragge.
After default on a mi)rtgago, a tenant put in
Kissession by the mortgagor promised to pay the
mortgagee rent, but failed to do so : — Held, that
tlie mortgagee was not chargeal)le with such
lout. \V<vhhll V. M.-C„ll, 14 Chy. 211.
Wliere it is necessary that a mortgagee should,
;,ir his own protection, take j)ossession. he is
Hiit chargeable with rests, and this even though
tlie mortgage was not in arrear. Gordon v.
/;,i;H.v, Hi Chy. 3(i.s.
A tenant of a mortgagcu- paid and took an
assignment of the nnu-tgage after the mortgagor's
.lentil, and the representatives of the mortgagor
1 having no means of paying the debt, lie agreed
1 with the widow that she and her chihlren slunild
oooupy the dwelling house and four acres of the
I uiiu'tgageil \)roj)erty ; and that he himself should
vupv tlie residue at a rental of .$170, should
1 nay SIO a year to the widow, and ajiply the
resiilue of tlie rent on the mortgage : — Held, in
a suit by a purchaser of the eiinity of redemp-
timi to redeem, that the defendant was not
tliargeable with the .'ii!40 a year he liad jiaid the
I willow, nor with rests, though the rent for which
I it was accountable exceeded the interest. Ih.
(\\\\\ of several devisees claimcil to be solely
tiititled, and mortgaged the property. The
lactgagees entered into the receipt of the rents :
-Held, that they must account to the other de-
I vistes for their shares of the rent. Mclido^hv.
I'liitnrin liniik, 19 Chy. 155.
The owner of land made a conveyance thereof
Iwthe grantee, his heirs and assigns, which was
liateinled as a security for repayment of a sum
Ulvauced, with interest, and after the same was
liully paid and satisfied, the deeil was expressed
It) be to the use of E B, wife of the grantor, for
lEie; and, after her decease, to the use of the
Icliililren i>f the grantor and the said E B in fee ;
Itotime lieing specified for payment of the money.
Il'l»ii the execution of this deed the grantor
■put the grantee into possession of the estate,
ItUch he continued to occupy for some time.
ISnbseimently the grantee allowed the grantor to
147
resume possession of the propertj', and after-
wards iissigned iiis interest to his sister K. (r.
who took no step to recover possession or inter-
fere with the occupation of tlie grantor or those
claiming under him. On a bill subsec|uently
filed by the children of the j^rantor, alleging
that the moneys secured by such dee<l had been
fully paid anil sitifilied : -Held, that under the
circnnistanees, E. C was not lialile for tiic rents
and prolita. Jiiri' v. (iconir, 1!) Chy. 174.
Although the rule is, that when a mortgagee
enters into possession he does so for the purpose
of recovering both his ]irincipal and interest,
and the estate, in tlie view of a Court of Ecpiity,
is a security only forthc nioiiey due on the mort-
gage, and the court reipiires him to l)e diligent
in realizing the amount due, in order that he
may restore the estate to the mortgagor, who is
in e([uity the party entitled to it : still he will
not be held responsible for any greater rent than
he has actually receivi'd, unless it is clearly
established in evidence that lie knew a greater
rent might and could have been obtained, and
that he refused or neglected to obtain tlic same.
Mcrrliiit V. Crunk, .31 Chy. (iO.
(b) Alhiii\inrf for /in/irorininif-!.
A mortgagee in iiossession of a grist mill and
other ])ro|)erty erected a carding and fulling-
mill. This was disallowed to him, as being an
imiirovement that a mortgagee could not make
without consent. Kcrlii/ v. Kcrlii/, 5 Chy. .')87.
Semble, that when a mortgagee is charged with
rents and profits received from improvements
made by himself, he should be aUowed the ex-
pense of oii;'h improvements to a corresiionding
amount. Cuii-ttahic v. (lin.it, (5 Chy. ,")10.
The allowance for improvements under sec.
11 of the Chancery Act (7 Will. TV. c. '2) is dis-
cretionary with the (!ourt. AVlicre, therefore,
upon a reference to the master, under a decree
for redonqitio);, where the mortgage had become
.absolute before 1837, the master had allowed tiie
price of certain valuable improvements, .amongst
others, a brick dwelling, stating that he did so
solely under the statute, the court referred the
matter back to the master, leaving it open to
him to allow or disallow such improvements.
Harrison v. Joncn, 10 Chy. 99.
The principles upon which improvements by
a mortgagee in possession are to be aUowed for
consiiki'ed and acted on. Paul v. John-ion, 12
Chy. 474.
Where the mortg.agee in possessifin had planted
out fruit and maiamental trees, suitable for carry-
ing out improvements commenced by the mort-
g Igor, he was allowed the cost price of the same,
and a reasonable amount for care and cultivation,
l)ut not the value thereof at the time of redemp-
tion. III.
A mortgagee in possession purchased at sher-
iff's sale, under an execution is. ued upon a con-
fession of judgment signed by tl e administratrix
in favour of the mortgagee, wlic was her brother,
and acting as her counsellor and agent in the
matters connectetl with the intestate's estate,
and who thereupon made large improvements on
the mortgage premises, under the nelief that his
purchase at sheriff's sale hail vested in him the
2339
MORTGAGE.
23
absolute fee in the property. Under these cir-
cumstances, the court, considering tlie case one
of some hardship on the mortgagee, refused on
further directions to send the case back to the
master, although it was prolmble some improve-
ments had been allowed for, which had been
made before the mortgagee's purchase at sheriff's
sale, and were not in strictness allowalde ; the
party complaining of the allowance not having
objected to the report, and the report not shew-
ing on its face when the improvements were
made. ]h.
Impro\-cinent8 made under the lielief of abso-
lute ownurahip arc allowed more liberally than
to one wlic) improves knowing that he is but a
mortgagee. CitrroUv. liohrrtnon, 15 C'hy. 173.
The holder of a mortgage having purchased
under tlie power of sale contained ni the mort-
gage, and afterwards under a slieriff's sale, sold
and conveyed to a purchaser, who went into pos-
session an<l made permanent improvements. On
his purcliase being set a8i<le, it was — Helil, tliat
his vendee was entitled to be allowed for his
improvements. Senible, the same rule would
apply if the mortgagee himself had made the
improvements. McLami v. Fntmi; 17 C'hy.
5G7.
A foreclosure suit had been instituted in 1805,
anil brought to a conclusion ; after which, in
186G, to supply a defect in the first suit a second
one was brought, and the report of the master
obtained therein in Deceml)er, 18(i8, which was
appealed against and a reference back ordered.
In proceeding under this order, in 1875, the per-
sonal representative of the mortgagee, who had
died during the pendency of the appeal, claimed
a sum of .^'2,9;i7, witli interest, for pemianent
improvements, but for whicli the mortgagee had
never put forward any claim during the proceed-
ings under tlie original decrees. The master
having refused to entertain the claim, a petition
was presented to the court praying for an order
to be allowed to prove such claim notwithstand-
ing the delay ; but the court, in view of all the
circumstances, refused the application, and dis-
missed the petition witli costs. The circum-
stances under which a claim may be made for
improvements by a mortgagee while in posses-
sion, and the effect of the stivtute 30 Vict. c.
22, O. , in respect of improvements made on the
lands of others through mistake as to the owner-
ship, considered. Itomancs v. Hernx, 22 Chy.
4tiy.
Mortgagors released their equity of redemp-
tion to the mortgagee, who about two months
afterwards signed a memorandum agreeing to
reconvey upon being paid principal and interest
and all costs of improvements made by her : —
Held, on a bill to redeem, that the mortgagee
was entitled to recover for all i)ernianent and
lasting improvements, although the estiite might
not have been increased in value to an amount
equal to the sum expended thereon. And where
the mortgagors so agreeing were merely trustees,
and the person beneficially interested was cog-
nizant (>f the various improvements being made,
and stood by and permitted them : — Held, that
neither he nor those entitletl through him couhl
be j>ermitted to redeem without paying for such
improvements. Brothcrtun v. Iletherunjtou, 23
Chy. 187.
See .S'/.uf V. Chapman, 21 Chy. 534, p. 2362.
12. Application of Inmirance Mohvijk.
(a.) Oeiieralli/.
Declaration on defendant's covenant in a inoi
gage to pay 1^4,400 by instalments with inten
at 8 i>er cent., and that in case of default in pa
ment of any instalment, the whide sum, M-ith ;
accrued interest should immediately l>ecome du
that the plaintiffs were to be at lil)erty to iiiHu
for 83,500, and to charge the premiums todeff
dant, who was to pay them with interest : tli
defendant made default in payment of certn
instalments, whereby the whole .^,400 with i
terest became payaVile, and renuiincd unpaid uii
the 19th of May, 1864, and from that day a fii
ther sum with interest renuvined due. Thf
was also a claim of Si()2 for premiums of i
surance paid liy plaintiffs. Equitable plea, tli
the forfeiture of the .?4,400, oy reason of tl
non-payment of the instalments, was to ho
plaintiffs' option ; and that it was provided tli;
jjlaintiffs might insure for the .^3,500, and th
the policies should be to the use of and
trust for plaintiffs, for better securing to plaii
tiffs the amount specified in the mortgage, am
subject thereto in trust for defendant, kc. ; tin
plaintiffs did insure, and the premises were d
stroyed Ijy fire ; that the plaintiffs received tl
amount insured, and paid themselves theit-di
all instalments with interest overdue, and tl
premiums, and still had a balance to meet futui
nistalments ; that in equity, therefore, j)laiiitif
were estoi)ped from claiming by way cf forft
ture the .§4,400 by reason of the default in paj
ment of the first two instalments, and tliat f >
cept by way of such forfeiture, nothing was iliu
— Held, on demurrer, plea bad, for tlie jilaintiti
did not claim by way of forfeiture but uudur cU
fendant's covenant, and at roost the plea sliewe
facts which might be evidence of plaintiffs' lAet
tion to claim the whole. Tritut and Loan Co.
Drennan, 16 C. P. .321.
On 10th February, 18()8, H. mortgaged laij
to one of the defendants, to secure payment f
^2,400 as follows : 3500 in two years, aiul til
balance in five years, with interest half-yfarll
The mortgage was in the usual statutory lunl
and contained a covenant to insure the biiiltlinl
in at least ^1,500. .Subsequently H. iiisurfd I
$1,500 on the buihlings, and $500 on iiiatliiutl
therein. In the body of the policy the lienctitl
the insurance was secured to the plaintiff (ap]
ently in anticipation of his becoming the Iml
of the mortgage), thus : " Any claim for hissl
be paid to Robert fJreeii, of Ouelph. " DefJ
dants afterwards assigned this mortgage to plal
tiff', and both defendants entered into a IkhhI
plaintiff, of same date, in !51,000, coiulitimiL'
after reciting the assignment, and that the tii- .tl
stalment of if.'KK), under the mortgage, wduM i
due 19th February, 1870,— that H. should J
that instalment to the plaintiff, when duu
failed, and the instalment due I9tli Feliriial
1870, was not paid. The property was ImnI
some months afterwards, and in January folliT
ing, plaintiff received the full insurancii iiidi
$2,000, which was retained an<l apjilied by I
to his own use. He then sued defcinlantsl
their bond. Defendants set up the reteiitioiil
])laiutiff of the insurance moneys, as a p.iyml
on the mortgage debt of more than the tirstl
stalment ana interest, and contended that tf
bond was thus discharged :— Held, no defeij
2340
In*>trance Moneys.
lanfB covenant in rv mm t-
nstalmentB with u>tev..t
t^n case of default nivay^
,"o be at liberty to u.Kurc
tetbel.rcnnumstoae.u.
K.^^ ./.;*». interest; that
2341
MORTGAGE.
2342
lit »n
the
them with interest;
myment of certiun
wUe*4,-lOOvs;,thm.
, ami remfvineain>\«vu\ until
1 amlfo'«*^'^^'^''^'.n "'
t;t remaine.1 due. '1 uk
fj f„r vrenimms of m-
itfl Eouitable vloa, that
"", by
§4,400
reason
as to
,,f
t\K'
lit
of ami in
to \ilain-
rears,
for, 1, tlie bond being forfeited by conilition | tliey tliereunon proceeded to foreclose : — Held,
ire for
1 he to the use
fn better secunna lo luau
•riM in the mortgage, and
r. St for defendant, ^:c.;tUa^
.,,1 the premises were do-
'"'treliaiU-^^^-eeeivcdtUc
ml mil themselves thevoout
inU yaui _^\„e, and tin;
"•^^••ftStuKt^uidcrde.
it, and a* ""'f „{ ,,i^i,itiftV dec-
3'21.
imiR H. mortgaged laud
lary, \^*'*;, "ecure vayment ui
^"iSb twoyeais-andtl.
^ wiUiintere^*^^'^"-^"^"'^^
4^^o ,mual statutory innu.
*'"'* 1 to nsure the building,
covenant to "^8}"\j ^ ,,.,.,1 t„r
^"^''''\:;?S"n machinery
^f\"^'fthepoUcytbebene.ito,-
lK)dy of *^.^^,°e plaintiff (am-ar-
as secured to t»vel^^^,,U,,ldc.r
■t»""''\nY claim for test.
thus; -^»y^.„„^^,l,." Defcu.
broken, the facts relied on could not be aet up aH
a \o^a\ )>ar ; and, 2, either the insurance moneys
receiveil by tlie plaintiff (there lieiuK no stipula-
tion as to their application) had not l)een legally
applied, and could not be regarded as applied in
mitiiij'uctiou of any part of the mortgage tlebt ;
or, if capalde of heing so applied, they might lie
applied at the sole pleasure of the pliiintitt' so as
to insure to him the full benefit of dcfcnilanta'
Ijond as security for the first instalment, as men-
tioned ill the condition. Vneii v. Jlmrr it al.,
21 C. P. 531.
The mortgagor covenanted to insure, and in- i
jured accordingly. The houses having been ]
Imriied, he attended, with the mortgagee, at the
ortice of the insurance compaiij', and signeil an '
(irder, drawn up by the secretary of tlie com-
pany, to pay the insurance money to the mort- !
ijagce upon a verbal agreement on his part to I
expend it in rebuilding. The mortgagee having
withdrawn from this agreement, the mortgagor i
attended before the boanl of directors, and ob- i
tained from them the usual promissory note of I
the company at three months, for the amount of
I the policy, which he transferred to a third party j
I ior value, but who was aware of the claim of the
mortgagee. The mortgagee thereupon tiled a :
1 bill against the mortgagor and the company,
liiiiniiig the insurance money to the extent of !
on appeal, by a puisne incumbrancer, from the
report of the miwter, that the plaintiff's were not
Ixniiid to give credit for the amount paid to the
nnu-tgagees. WrMiinicutt v. Jlaiilfii, 2'i Chy.
38-'.
The court
ert f. ''■'''''hu^ mortgage to vlain-
assigned this 1""^ ^ f .^ ,„„„1 td
:fendantsemtm^l^;^i,,„„,,J
i«<^*^"\S'3t^iatthet\r5ti«-|
e assi
■O
nary, 1»'"'. "i. .y.e„ du.;. H.
t to the plaintiff ^,;^,.,,,„ary,
"t^^he Xerty-asburn.
V^''^- u and in January foUow'
Iterwards andin ,^^^^^^
eceived^-/«^n=i;l^
^eiSUu^t^e^tej-^
insurance r^^/z^fthc tirsti^
the amount due on his mortgage
made a decree for payment, and or<lered the j
company to pay plaintitl'the costs, but dismissed i
the liill as against the mortgagor, with costs, he ■
lieing an unnecessary party : — Held, also, that
the person to whom the note of the company
iras transferred, was not a necessary party.
Wtitl V. The Oorr D'utrkt Mutual Jus. Co., 8
Chy. 5'.'3.
Where a mor+g:ige deed ei.Jitains no provision
istotlie application or appropriation of insur-
aice money coming to the 'i;<)rtgagee before the
itime aiii>ointed for payment of the mortgage
iiiouey, he is not bound to apply it in reduction of
tksum secured, or the interest accruing thereon,
mtilthe expiratiim of the time allowed for pay-
liient of the mortgage money. In such a case the
laortgagor would be entitled to have the money
apeuded in rebuilding, ami re-placing all par-
lies, as near as may be, iuj they stood before the
Ik Ait.'ilin V. Story, 10 Chy. 30(5.
Where a mortgage contains no covenant by
lihe mortgagor to uisure, but he does insure, and
ilos3 by tire occurs, whereby the insurance
money becomes payable, the mortgagee is en-
led, under the 14 Geo. HI., c. 78, sec. 83,
have the insurance money laid out in re-
ding. iStinxoii v. Pennock, 14 Chy. G04.
A mortgagee insuring the mortgaged premises
it of his own funds is entitled to receive the
)unt of the policy in the event of loss for his
Tj^iietit, without giving credit therefor upon
mortgage. linxstU v. Jiohcrtnoii, 1 Chy.
nb. 72.— 8pragge.
I The owner of laud mortgaged the same, and,
pparauauce of a covenant in the deed, insured
(kildings on the land. The policy provided
13. liiijht of Morlijiiijd' to prirntt Siriiriti/ tn'iiui
JJiiiiiiil/<liiil.
The defendant, who was entitled to purchase
land, had made default in paying the ))nrchase
money secured by mortgage, and had agreed tn
release to the plaintifl's the e(iuity of redemption
with the option of repurchasing ; iiad failed to
erect a new saw mill on the land, as stiimlated
for ; had allowed tlie saw niillH already thereon
to fall into disrepair ; and had been cutting and
removing the timber, so that the saw mills were
in such a condition that they would become
utterly lost to the plaintiffs if the defendant was
allowed to retain possession ; and that the saw
mills and timber eonstitnte<l the almost entire
value of the mortgage securitj' : Held, that the
plaintitls were entitled to an order for posses-
sion, in case the defendant did not pay the over-
due instalments in a month, without \)rejudice
to the plaintiff's right to enforce the agreement
for sale, and in the mcantiine he was restraine<l
from cutting or renniving timljcr. J'/ii/lips v.
J'n:ifoii, 14 Chy. (57.
A mortgage having been created on land on
which was a steam saw mill, the nioi'tgagor was
restrained from removing the maehmeiy, al
though it WiVS alleged that the property would
still remain a snfHcient security, for such remo-
Vfvl would have changed the character of the
premises. Oonlon v. Johnston, 14 Chy. 402.
A mortgagee filed his bill for foreclosure and
for an injunction to restrain the vendee of the
mortgagor from removing a building erected on
the property. The court thought that though
the building had been actually removed, it was
a proper case for a mandatoiy injunction ; but it
appearing that the building had been removed
piece-meal, and that there might be dilKculty in
restoring it, an eiujuiry was directed to ascertain
the value thereof, as sufficient for the justice of
the case. Meijcra v. Snutli, 15 Chy. GIG.
Seinble, that standing timber is within the
provisions of the registry laws ; and that the
purchiiser of a right to cut the same is affected
with notice of the conveyance from the original
owner and a mortgage hack from his vendee.
Unless a mortgagitr prove demonstrably, so as to
leave no room for doubt tlnit the mortgage pre-
mises remain ample security for the mortgage
debt, the C(uirt will restrain him from cutting
over the whole land. The jurisdiction as to
restraining the cutting and removal of timber
was not preventive oidy ; the court would in a
proper Civse interpose where the limber could be
followed. The Administration of .Justice Act
1873, sec. 32, it would a]ipear, however, has
removed any technical difficulty of this sort.
Where timber is cut without any intentional
wrong, a'ld there is no evidence of mala tides or
the loss, if any, should be paid to the mort- mieutioual wrong, the injury actually sustained
r/'^iitnontSuthatthl
^"Etr;t-Held,uodefen«
The buildings were shortly afterwards
xiyed by tire, and the insurance moneys
1 to the mortgagees, who assigned the mort-
e to trustees of the iusurance company, ami
by such cutting is the measure of damage to the
owner or mortgagee of the land. McLean v.
Burton, 24 Chy. \U.
See, also, Injunction, p. 17G5.
1-343
mortgage:.
■i
■' lM^i-:■■ '
:■ iwif
14. i>thi !• II'kjIiI.^ 11)1(1 LIdhilltii'M of Murtijani'i'.
A iiiortgagL'o from wliiuii tho mortgagor bus
acoi'iitcd a lease of tliu iiiortgagcil premises will
not lie jieriiiitted at the expiration of the term
to proceed agaiimt the mortgagor as an over-
holding tenant under (' S. V. C e. '2~ s. (iS. //(
/v J,',,r,, 4 r. 1!, L'T. C. L. Chaml). — liiehards.
A mortgagee of h\nd, part of whieh was taken
liy a railway, was oll'ered t'lOO as compensation
for the lanii so taken, which he refnsed ; anil the
matter having heen referred to arbitration, f.'<0
only was awarded. On a hill liled t<' redeem —
Held, that, nnder the circumstances, he was
ehargealile only with the sum awarded. (.I'liiiii
V. McDoimkl, 11 Chy. 140.
Land nutrtgagcd hy the owner was taken by
a township council for a road, and the compensa-
tion having licen ascertained by award, the eor-
iporation jiaid the amount to a creditor of the
mortgagor, by whom it had been attached : —
Held, that the mortgagee had the i)rior right ;
that his nioi'tgage being regi.stered, the corpora-
tion had notice of it; and that lie was entitled to
recover the amount from the corporation with
costs. JJiiii/iiji V. 'J7(i' Tutiii-fliiii (if York, IG
fhy. -.'K).
A testator devi.sed all his real estate to a
mortgagee thereof, charged with a legacy in
favour of an infant, and beijueathing legacies to
other (lersons. The mortgagee liled a bill claim-
ing to have the sums appropriated as legacies
applied to the jiaynient of his mortgage debt :
— Held, that he was not entitled to be paid out
of the personalty in preference to the legacies;
l)ut that he was entitled to be paid liis mortgage
debt out ('' the property so devised to himlH;fore
the sums C. ii'ged thereon for legacies were
raiseil. liithr v. Itirkii; 14 t'liy. iViA.
A mortgngee paying oft" a prior execution has
a lien therefor against subseijuent executions.
Till TniKt (iinl Luiiii Com/kiih/ v. C'lil/ibcrf, 14
Chy. 410.
A ehose in action can be reached by [)roeess of
seijuestratjon, but the right or interest of a surety
in regard to the money for the payment of which
he is surety, is not property of such a nature as
can lie reached by that process. Where therefore
a mortgagee Hied his l)ill against the assignee of
the e(piity of redemption to enforce by this means
payment of the deficiency arising on a sale of the
mortgaged premises, it was held that the right
of the mortgagor to call upon his assignee to tlis-
chargc the mortgage debt was not of such a
nature as could be reached. Irviwj v. liuiid, 15
Chy. 157.
VII. A.S.SIGN.MKNT AND TkANSFER.
1. Furm if AnKiijinwvf.
Where the granting part of a deed of assign-
ment of nK)rtgage transfers the indenture siniiHy,
and the habendum the interest in the land de-
serilxid iu the intlenture, the estate posses.
Doc d. Wood et id. v. Foj: H al, 3 Q. B. 134.
A mortgagee by indorsement assigned to M.
" his executors, administrators, and ivssigiis, a'l
his ' right, title, and interest in and to the within
mortgage' " : — Held, not to pass the land mort-
gaged. JIoruH V. Currie, 8 C P. (JO.
"Assign, transfer, and set over" in an :issii
ment of a mortgage, are the pr<ipcr tcchiiii
words to pass an estate in lands and teiicnn n
Wiitt v. Fiiiilir, ]'2V. V. '_'54.
An assignment under seal, annexed to a iiid
gage, stated that the assignor "bargained, i-n]
assigned, and transferred" unto the aS'sigiu
" his heirs and assigns, the annexed niortg.ij
and all the right, title and interest therein,"
the assignor, "to have and to hold the same iiii
j the said, itc, his heirs and assigns, to his m
! their sole use forever" : Held, that the la
mortgaged, did not pass by these wonls ; ]n
that had it been a devise, instead of u (],.
inter vivos, the land would have p.issed mid
the term "mortgage." Aiixton v, JJoidlii:i, l(j
P. 318.
The holder of a mortgage security while 1
bouring under an attack of sickness, of which
sub.se(piently died, emlorsed on the indei.tiui
memoraiiiluni assigning the same to his wile t
the ))enelit of herself and his children, wlii.
he signed, but did not seal, although thenuiiu
andum expre.s.sed it to be under seal : -He]
that the wife took no interest under such assij/
ment, either as a gift inter vivos or as a dunaj
mortis causa ; and a bill tiled by her to comj
the executors to ext.cute a formal assigiiniint
the mortgage was dismissed with costs. Tiif'a
V. C/(o-/7 , (i Chy. 474.
An assignment by an administratrix uf
mortgage, part of the assets of the intestiitc, w
held valid, though not therein stated to be ex
euted by her as administratrix. YiirriiKjimi
Li/oii, 12 Chy. 308.
2. Cori'iiiiiilK hi/ Asslijiiiii:
Upon a foreclosure suit ujion a mortgage f
£350, and on M'hich only iJ2.")0 had been in t;i
advanced, the court disallowed the additidi
£100 iind costs of the s(jit. The plaintill, htij
the assignee of the mortgage, then claiim;il
recover these costs from defendant, his assijjiK
upon his covenant for the validity of the scciirii
&e. :— Held, not recoverable. tSliinirxKX.Jlliiit
11 C. 1'. 102.
A mortgagee who for a valuable considcnitl
transfers the mortgage, and all his estate in 1
land therein, and covenants that the iimity
at the time of the assignment is in full fcinui
valid and effectual in law, and i.ot assignt'd,
leased, or otherwise made void, and thatiuiiJ
of the money thereby secured has been jiaiil
liable to the assignee though the mortgagiii'inj
had any interest in the premises professed tu
mortgaged, and the mortgage never was any II
thereon. ,Poinll v. liakir, 13 C. P. li»4.
The declaration claimed £1,500, being
amount secured by mortgage, made by (ineHj
defendant, and assigned by him, with a cmeJ
in the assignment that he should be persoiil
liable for the due payment of all the nionejsl
performance of the things stipulated iu the ml
gage, in ease of any deduction, defalcatioul
abatement. Breach, that B. did not pajf
£1,500 on the days appointed, but madedefl
and that defendant has not fulfilled his cuvei J
The defendant, besides non est factum, jileaf
pleas denying bis indebtedness, except as t
moneys remaining due at the time of the asJ
ment, and also after the assignment, but 1
'■M.
2341
„a Hot over" in m .w.itm-
arc the l-rover terlnucal
'e in liuul. nn.l tei.ei.i. ut..
r. 2rv4.
,r seal, aimexca to a mrvt
,x.Higuor"l.ar-aine.l,:nl,l,
errcMl" uuto tl.e uksiku.t,
,. the aimexecnu.itg:|^.,
ean.l interest there,,., of
'a.,at..l>oUthesa,,,e„„to
•vs a.,.1 assigns t';;"«J^'"
^ ." . Hehl, that the b„.l
„„s^ hV these wonls ; U,t,
Hse,^ insteaa nt a .h.,!
r\vouhl have l..s.x.a ',,,;ler
;• ^.l„,.r..HV. yi(,»/(o.N 1I-1-.
mortgage security ^vi,ih■ U-
Ue\^ of sickness, of vh,.h he
i^Leao«theU,ae..t,n-.u
■ , tl,.. same to ins \v,le t^v
not seal, aW,o,.gi, the,,, e,,,n,^-
•, t„ be nn.ler seal H.M,
no interest un.ler such ass,gu-
■Ut iter vivos or as a .hmat.u
v.cutea {orn,ala.s,gnnu;.|tot
'l^is;.! .ith costs. V,ym,,
H ' b'v an a.lministratrix of a
^l;:^v;:ctsoftl.m1.staU.^.J
» + tlK.ri'ii, stated to OL t-xi.
^all^Si^. r. ".""-.'
)8.
^"•^VSah:; ed the aa.htiu,uJ
^rSt.^rfi--i
ortgage. aml-Uni^ ,^^
LalmlaN,.u '.^ :^^,^ ,^^,
ai.ynu.rtgagc, na^le^^ ^^^ J
fthetlnng8«tiV«-vte.U^^^^
Breach, that «• ^ ^ „^,,^ie iletaJ
iJt&ouestfaetujM
Aisimlebtedp, rA
bCtUe^^^-"t,h«tJ
2345
MORTGAGE.
234G
the 2i>th Deccmher, ISCtO; ami demurred to the |
(lec'laratioii. deiiyiug his liahility merely on B. '» |
ilefaidt, ■witl,out shewiug any means taken to re- 1
cover tlie amount: — Held, tliat the declaration'
was good, till' asMig,„,,ei,t as stated in the'
(leelaratioi, being largo enough to juvss all the I
(loht secured by the mortgage, and it was not'
shewn to lie ii, a,iy part paid. '2. That defen-
dant's covcant bonnd him to pay all n,oneys j
secured by H. npon his, H, 's. default. 'X That
the breach elaiuied no niore than tiio i/laii,tiil'
might possilily be entitled to upon tiie assign-
incut and covenant. J/nrsun v. Hnntcr, 11
c. r. r)8.-).
On the tiMUsfer of a mortgage the mortgagee
Cdveuantcd that if default wei'o made i,i paynient
of the mortgage nioney, lie would pay the same:
— Held, tiiat tliis did i,ot eonstitut" hint a sni-ety,
within tlie meaning of section 4 of tin; .S2nd of
the ordei-8 of 18"),^. Vltirh' v. BiM, 8 Chy. 7.
AVhure a mortgagee assigned the mortgage,
covciumting for tlie payment of the moi'tgage
money, and subject to an agreement between
the mortgagee and assignee, that the former
might have a re-assignment of the mortgage on
uayuient of prinei[)al ami interest due thereon,
anil the mortgagee afterwards made payment.=i
under his covenant : -Held, that he was entitled
to a lien therefor as against the mortgagor.
I'kinltnj V. I'dliiK r, 12 C'Tiy. '2'2(1.
Where the assignee of a mortgage, with power
to sell or lease in default, gave notice to the mort-
gajjor and the mortgagee of his intention to sell,
1 liut gave no public notice of the intcndeil sale,
ami notwithstanding the protest of the mort-
!;agee, who had covenanted to make good any
I ileucioney in ease of a sale being enforced, pro-
ceeded with the s:;le, an<l sold for little more
1 than half of the balance due to a person cogni-
I zaut of the facts, and then p)'oceedc<l agamst
I the mortgagee for the deticiency. The court set
I asiile the sale, but refused the plaintitt" his costs,
I te having made unf(mndtd charges of fraud
I jiitl collusion against defendants. Itkhinonil v.
l'i(i;ix, 8 Chy. 508.
3. Rl'ihta of the Portifi after Amgnment. —
Notke.
The assignee of a mortgage, who takes without
the intervention of the mortgagor, is bound by
the state of the account between the mortgagor
I »ail mortgagee, lloixlirhum v. Da Gram, 2 Cny.
1135.
Wiere two were mortgagees, and one assigned
I his interest to the other, the mortgagor was
I »llowed credit, as against the assignee, for goods
1 delivered to the assignor, until notice of the
I jiaigimieut. ihdhruith v. MurrUion, 8 Chy.
89,
The rule in equity is, that the assignee of a
JBortjjage takes it suDJect not only to the state
I of the account between the mortgagor and mort-
Ingee, but also to the same ei^uities as affect it
linthe hands of the mortgiigee. McPhersoii v.
|D(iii|(((H, 9 Chy. 258.
The assignee of a mortgage is entitled to set
lip the defence nf a purchase for value without
iKtice. The intending purchaser of a mortgage
lihould communicate with the mortgagor before
Ipnrchasing ; aiid if he refrains from doing so
his assignment is subjeot to all cciiiities between
the mortgagor and iiiortLtayec, ttiom,'li lie may
not liavit had actual ii'itice of tlieiii. Tn/lcii v.
Diwjlii", l."> Chy. r.M).
The bidder of a iiiortLjage .secrity a.ss-igned tlie
same for value mi the !>tli of ( ktober, (Saturday, i
On the 1 1th the iiinrtL;a;;(ii-, withe mt imtice of the
transfci-, satislied the iiKntgage with the mort-
gagee, one of the assi^'iiee.s being present, and
saying nothing of the a.-.-iigiiiiieiit. On a bill
tiled by the mortgagor the court onlered the
mortgage to be i-eleased, but refused tlie plaintill'
his costs, as he faileil to prove fraud which he
chai-gcd. Eii'ji r-^DH v. Smitli, '.) Chy. 111.
.\ mortiiage was held by at, a.ssi'.'iiee for the
benetit ot the assignor (tin; iiim-tuagee,) ami tin
moi-tgago,-, without notice of siuh assign, nelit,
jiaid the moi-tgagee, and olitaiiied from him a
discha,'ge uiuler tlu' statute. 'I'lie emnt held the
liaymeiit gooil, and ordeied the id.iintitl' to
execute a release, it being <loiibtful whether
under the ciirnnistanees the disiliarue from the
mortgagee would re-vest the pioprrty in the
mortgagor. Mr/hnininj/i y, /),,iiii/i, r';/, 1(1 Chy I:'.
The trustee of a mortgage, who had no .i.utho-
rity to t,'ansfer it, did ,ievei'tlieless .sell it to a
third person : — Held, that a bill impeacliing the
transfer was not denmn'able for not elia,'gii,u;
that the pui'chaser had taken the t,-ansfer with
notice of the trust. Jt'i/ckniau v. Tin ('aiiai/ir
Liff A.'<.->. Co., 17 Chy. 550.
Fidlowing the rule in Hc„dei-so,i r. Rrown, IS
Cliy. 70, and other cases in this court, the coui't
held the assignee of a mortgage bound by all the
equities atJ'ecting it in the ha, ids of the mortgagee.
And the mortgagor, in a suit to fm-eclose, having
set up that befoi'c notice of the tra,,sfer lie had,
at the i,istanee of tile mortgagee, incurred lia-
bilities for, and paiil ofl' debts of the mortgagee,
eijual to the amount due on the mortgage, a
reference was directed to the master to in<iuire
as to this ; and if found to Ije so the bill was to
stand dis,uissed with costs. B'tui:' rrillr v. Oftt r-
•w/i, 20 Chy. 379.
The assignee of a mortgage, like the assignee
of a promissory note, after m.ituritv, or other
chose in action, takes the same subject to all
equities, as well those of third pai'ties, as those
of the parties to the instrument. Ellintt v. Mr-
Coiimll, 21 Chy. 27(;.
A mortgage for ."51,200 was created by a third
party, who was indebted to (!., in favour of a
solicitor, as security for such costs as he might
incur in carrying out a suit for (J. Tlie client
afterwards consented to the sidicitor assigning
the mortgage to an amount not to exceed .'*50O,
which was done. The assignee having failed to
notify the mortgagor of the assignment, by rea-
son of which a sum of .S530 had been by the client
allowed to be paid to the solicitor : — Held, that
the assignee could only recover what might
be found due in respect of such costs over and
above the .amount so paid. ^4 tkiii-ion v. OaUaqher,
23 Chy. 201.
B., being the ownier of lot A, mortgaged the
same to C., who assigned the security to J.,
covenanting for the payment of the mortgage
money, which assignment was duly registered.
Afterwards B. agreed with W. , the owner of lot
B, to exchange properties, B. undertaking t(i
have his mortgage to C. transferred from lot A
2347
MORTGAGE.
i^\
,U .h) 1..
to lot B, to wliicli C. aasiinted, not infonning
either of thtm of the aHBiKiiinent. C, who woa
a solicitor, wiis employed Tiy Imth parties to pre-
pare tile »everiil coiivoyiuicea, iiiuhulinu the
iiKirtgage from U. to himself on the newly ae-
(juired property. No mention wns nindc or pro-
duction deinftnded of the first mortgage, which
remained tindiHcliarged. B. paid off and o)i-
tnined from C'. a diMciiarge of the new mortgage
given Ijy him on lot B ; and C. paid the interest
to .1. for sevci'al years, when he made ilofault,
and the jilaintitl's, the representatives of J., then
,ai>plied to H., when he, for the first time,
was made aware of the assignment : — Held, re-
versing tlie decision of the Chancellor, that the
payments so made by B. to C. had not the effect
of discharging the mortgage on lot A, and that
the plaintill's were entitled to a foreclosure.
Held, also, that \V. was affected with notice of
the assignment by reason of the registration ;
and witli constructive notice, by his omission to
make any enipiirics for the mortgage. Held,
also, that it was not necessary to set up the
registration of the assignment in the Inll in
order to prove notice ; and that, if necessary,
an amendment should have been allowed under
tlie A. ,1. Act, 1873, s. nO. O'il/claml ct ol. v. ir(«/.v-
>r„r/h vt a I., 1 App. R. 82 ; 23 C'hy. 547.
AVhen a mortgagee sells or otherwise disi)oses
of liis mortgage security, being aware that the
mortgagor has parted with his interest, he is
lx)und to communicate that information to his
assignee, otherwise, in the event of such assignee
filing a bill to foreclose against the mortgagor,
who disclaims any interest in the property, the
mortgagee will be bound to pay the costs of the
mortgagor, notwithstanding he may have been
retained as a party to the suit until the hearing.
M(in/<o>i V. liohlin, 2 (). S. 41. — Chy.
In 1821 plaintift" mortgaged three properties to
secure a debt i)ayable in the following year. It
was not then paid. Payment was urgently de-
manded in 1827, the mortgagees being then in
gi'eat difficulties, and the debt still remaining
due, the mortgagees sold and conveyed, with
absolute covenants for title, one property, for
about its value, and they gave credit for the
amount on the mortgage. This property after-
wards passed througli several hands, and it was
bought by the present owner in 1837, who made
considerable improvements on it : — Held, that
the efiect of the sale and transfer by the mort-
gagees of the portion of the mortgaged property
was to transfer to the purchasers a part of the
mortgage debt, proportioned to the value of the
property transferred, as compared with the
whole property mortgageiL McLellan v. Mait-
'ami, 3 Chy. 164
The Trust and Loan Company l)eing the holders
of a mortgage bearing eight per cent, interest,
transferred the same to a private indi^'idual : —
Held, that the assignee was entitled to enforce
payment of the stipulated interest, notwith-
standing that at the time of the creation of the
incumbrance the company only could legally
have reserved such a rate of interest. Jie'ul v.
Wlutvhmd, 10 Chy. 44«.
An ivssignment to the Trust and Loan Com-
pany of a valid existing mortgage Ijearing more
than eight per cent, interest is not necessarily
void. The Triint and Loan Company of Canada
V. Boulton, 18 Chy, 234.
I Mortgage held good in the hands of an assjgiK
I for value without notice, though the paitii's f(
I whose l)enetit it was given were not named in
I or shewn by any writing. Hair v, J)iiiiiii/ ]
\Chy.S-i.
j AViiere a mortgagee assigned the inortgagi
covenanting for tlie j>aymcnt of the mongiu
money, aiHisubject to an agreement Itutwicntl
I mortgagee and assignee, tliat the former mi^l
have a re-assignment of the mortgage on pa'
ment of princiiial and interest due tlieroon, ai"
! tlie mortgagee afterwards made payments uiuli
i his covenants :- Held, that Jie was entitled to
, lien tliercfor as against the mortgagor. /'/, ,„;,
v, J'olni,,; 12 Chy. 22().
. An assignee of a mortgage cannot, as agaim
' a prior eipiity, set up tlie plea of purcliase witl
out notice. Sitiaii v. Mch'iritii, 18 t'hy. (i2lt.
The reL'istered owner of land mortgaged tl
same, and afterwards conveyed absolutely to
purchaser, who registered before the moitgagi
giving a mortgage to secure purchase money
and su [Uentlythe vendor assigned his nior
gage to a purchaser who had no notice of tl
prior mortgage : — Held, that the puruliaser
mortgage in the hanils of the assignee wa.s siil
ject to the lien or charge of the vendor'H mor
gagee. lb.
See Miiir v. Dunnet, 11 Chy. 85, infra.
VIII. SeVERAI. MoRTCiAOES.
1. Priorlh/.
(a) Genera I fi/.
The mortgagor having afterwards become ir
debted to the mortgagee in a further sum coi
veyed the lands to him in fee, and s jine da
afterwards the grantee gave the mortgagor
bond to re-convey upon payment of tlie wIk
debt : — Held, that the grantee was entitled
hold the premises as a security for the wlmle
his debt, as against a mesne incumbrance w hi
had been created thereon between the time
his obtaining the mortgage and the conveyam
to him in fee, but of which he had not ha
notified before the execution of the couveyan
under which he claimed. Held, also, that tl|
registration is not notice in this country. Sfml.
The Gommerckd Bank, 1 Chy. IGl). InApiieal,
Where a party executed a mortgage and lii
it registered, but did not for some time, gi\el
to the mortgagee, and it was afterwards soM
a third party, who was not aware of the facts,!
was held entitled to priority over another iiiof
gage previously executed, but not registered \
after the other security hml been registcnl
though before it had been delivered to the nioi
gagee. Muif v. Dunnet, 1 1 Chy. 85.
There were two mortgages on certain liiil
0., having notice of the second, bought tlie til
mortgage, and, at or about the s.ame time t
equity of redemption, and gave to his veiulol
new mortg.age for the sum O. was to pay tliel
for. O. conveyed jiortions of the land tn
sons, in terms subject to the mortgage which I
had 80 given ; and he afterwards paid that iml
gage off : — Held, (affirming the decree of
Court below, ) that these facts were not suiKciJ
evidence of an intention to merge under tliel
Vict. c. 87, and that the secoiul mortgaye hi
:')
m
^V ;^SvV
LM' \ ■■
■ ■ ■ >. ■
||M
^%
2348
, thehftiias (.fan assignee
■e though the jHUtuis fnr
.veil were not immtMl m it
iiig. Mii'»- V. J>ii"i"l, 11
aBsigueu the mortgage,
payment of the mortgage
, an agreement hetsvcen the
ec that the former might
„f the mortgage on i.ay-
1 interest .lue tliereon, lui.l
anls nmao vaymentj. .m.lor
\ that he was entitled to a
8t the mortgagor. Fl' muuj
nortgage cannot, as against
„ the plea of imreha«e with-
' Mch'nn, 18 <-'l>y- '•-•<•
2349
MORTGAGE.
2350
vncr of land mortgaged the
,\8 eonveyed absolutely to a
.stevcl l)ef..re the nioitgago,
to seeure vuroliase nioiiey ;
l,e veiulor assigud h.« n.ort-
... who had »" notice of the
:Hchl, that the i.urehaserH
„,\8 of the assignee was sul)-
eharge of the vun.h.r s lu.nt-
„„et, 11 Chy. 85, infra.
EVF.RAI. MoRTdAOKS.
1. Pnof'tt'J-
a) CkwrnlUj.
having afterwards become m-
L^a mesne incumbrance ^vlnd
thereon between the tnno of
n ortuagc and the conveyance
|,«t ? w^ich he had not been
execution of the conveyance
KlnAmed Held, als.., that the
itSce in tbis country .S7.H/V.
S-.lChy.lOO. InAvveal.
L executed a mortgage and l.a;l:
LlUl not for some tune, give It
t a ditwasafterwardssoiau,
L was not aware of the facts, It
1 trnriority over anothcriiiort.
'execK, but not registered til
security lra<l been registered,
Sbeen delivered to the mort.
Dunmi, U Chy. 8o.
rfthe'sumO was tow there.)
j^ui V"^" mortgage winch m,
ffi:Xj;i^rSsi^fthat>„.g
n (affirming the decree of tli
fet&aftBweren.;.utc.eM
intention to merge under tli -J
ItS the secomT mortgage had
not ae({uired priority over the inortgnge jmr-
c'liased by O. — Mowat, V. (' , diibitaiite. and
liwynne, .1., disH. Hnrbr \. h'rrliii, 18 Chy.
440, .v. C. in the I'ourt below, 17 ('liy. (!.'ll. For
judgment of (Jwynne, J., bcu 18 Chy. .ViS.
Two mortgages were sueeesBively taken by
distinct creditors, which omitted, byinistrke, a
^tiece of ground which the mortgagor held under
a contract of purclia^e only. 'I lie second mort-
i^age was afterwaiila assigned for value, without
notice of the first mortgage. Tlie mortgagor
ilied ins(dvent. One of the heirs, out of his
iiwn money, paiil the balance of i)urchase money
line on the oinitteil lot, and obtained from the
vendor's heirs a conveyance of that hit to him-
self. Afterwards the mortgagees resiwctively
discovered the mistake in tiieir mortgages, and
each tiled a bill to liave his mortgage rectilicd,
taking no notice of the other mortgage, and not
making the Indder of it a defendant. Tiie
second U'ortgagee obtained his decree first, and
thereby the estate was vested in him ; and the
,ltfeiidant (the heir of the mortgagor) was
.irdered to pay the costs and to receive credit
for what he had paitl f(U- his conveyiuice ; the
I lidlders of the first mortgage then filed a bill
.ij;aiiist the plaintitT in the otTier suit, claiming a
[iiiiir equity in respect of the omitted parcel : —
IIlUI, on rehearing, reversing the decision of
M„wat, V. C, 18 Chy. .382, that the defendant
(the holder of the second mortgage) couh' not
I ivail himself of the legal estate in such a ca'<e ;
and that the plaintifl' was entitled to the relief
hiruyed. Mowat, V. C, diss. Mctrhtiiil^' Hank
I jf Canada v. Murr'mtn, 19 Chy. 1 ; 18 Chy. 382.
L'liii'NeiitativeH oi" .1. wens not
iiotli mortgages, but only the
Hiirkhr V. Hoiriiiiin, 1 2 ( 'iiy. H'tl.
.■^ee. tuiot the Itcgistry .Act (IS(m), which en-
aflTectiiig land sliall be
2. Tackinij.
Where there were three mortgages on the same
I property, and the third was taken without notice
1 i the second, and was afterwards transferred to
I mother person, who thereupon obtained a con-
1 vcyaiice to himself of the first mortgage : — Hehl,
Itliat he could not tack his third mortgage to the
Ifat; and the court refused a reference to eu-
]iuirc whether the assignee had notice of the
I iecuncl when be took the conveyance of the third
I mortgage. 2fcMurr(iy v. Biirnham, 2 Chy. 289.
A mortgagor conveyed his equity of redemp-
laouto a third party, and afterwards contracted
Ito release to the mortgagee, and the latter, hav-
j uo notice of the prior conveyance, paid the
Ifflortgagur some part of the consideration that he
Ikl contracted to give forthe release: — ^Held, that
lliewas entitled to tack wluit he had so paid to his
liiortgage debt. Gordon v. Lothian, 2 Chy. 29.3.
R. mortgaged lot Hi to E. to secure £2,047.
IE. afterwards mortgaged lot 17 to C. to secure
lilOO. R.'s eijuity of redemption in lot 17 was
liltached by fi. fa. lands in 1851, but before sale
lolitE. purchased and received an assignment of
IC's mortgage; after this the sheriflf sold K.'s
Idiuity of redemption in lot 17 to L. On a bill
Ifletl by the representatives of E. to foreclose
Itoth mortgages : — Held, that they were entitled
tack and be redeemed, if at all, as to both.
/Jyiiwii v. Booti*, 10 Chy. 340.
1 Where the owner of property mortgaged it to
A ., and then assigned an undivided half to J. ,
^bject to the mortgage, and afterwards mort-
»1 his remaining half to 6. , who afterwards
iaiiied on assignment of the first mortgage : —
Held, that the rciiii'NcntativeH of
iMtund to redeem both mortgages, liiit only the
mortgage to \V. ■■ ■ ■ ■■ --
.Sec. (id of tlie
deemed valiil in any court
acts that "no equitable lien, ciiarge, or interest,
in this province after this act shall come int<i
operation, as against a registered instruiiient
executed by the .same party, iiis iieirs <ir a.isign8 ;
and tacking sliall not be allowed in any case t<>
prevail against the provisions of this act," — in
not retrospective. Mclhinalil v. MvDdihiIiI, 14
Chy. .5:W.
A mortgagor's devisee held not entitlcMl to re-
deem the mortgage without also iiayinj,' a judg-
ment held by the owner of the mortgage against
the mortgagor. This is not such tacking as the
Registry .Vet forbids. McLann v. Francr, 17
Chy. 5.33.
A treasurer gave to the municipality a mort-
gage to secure tlic moneys coming to lii.s hands.
On taking an account in a suit to redeem, it was
— Held, that the municipality could imt tack a
simple contract debt due to tiiem by tlu! plain-
till' before the execution of the mortgage. /V;--
ijnKi)U V. Frimtinar, 21 Chy. IS8.
The rule of equity which allows the holder of
several mortgages created by the s.iine mort-
gagor on separate properties to consolidate tho
debts, and insist on Iteing redeemed in respect of
all liefore rolcivsing any one of his securities, is
not "tacking," and is not such a claim as tho
Registry Act declares sh.all not be allowed to
jirevail against the provisions thereof. JJainhi-
lon Sarini/'t and /iinn/niint Sarhtij nf Loudon v.
Kittrid,/,; 23 Chy. (i31.
See Street v.
p. 2348.
Commercial Bank, 1 Chy. 109,
3. MnrHhaUimj Scrnritie/i.
In 1849 a., being the owner of Whiteacre and
Blackacre, contracted to sell half of the former
to B. by a bond, which was never registered. In
1852 G. executed a mortgage covering both lots
to C, which was immediately registered, but
the Christian name of the grantor s wife, (who
executed to bar dower) did not appear in the
memorial. In 1853 <r. gave a mortgage of
Blackacre to P., who also immediately regis-
tered his conveyance. In i8.")5 (}. s(dd tho re-
maining half of Whiteacre to M., and in the
following year B. conveyed his interest in the
other half to S . In 1 8(5 1 C. sold Blackacre under
a power of sale in his mortgage, and the sale
rec'./.id fully what was due thereon. In 1862
P. iiled his bill against M. & S., in order that he
might be subrogated to the rights of C. as
against Whiteacre for the amount due him on
his security. S. & H. had previously paid all
their purchase money : — Held, that P. was not
entitled to any relief against S., but that if C.'s
mortgage was duly registered, P. was entitled to
contribution against Al. Boucher v. Smith, 9
Chy. 347.
The owner of lots A. and B. sold A., but the
conveyance was not registered ; he afterwards
mortgaged A. and B. and the mortgagee regis-
tered the mortgage without notice of the prior
deed ; the mortgagor subsequently sold B. in
portions by three successive sales : — Held, in a
suit by the assignees of the mortgage for a sale.
2n.Ti
MOHTltAGK.
'2xy.
th;it tlii' ill rr.i' sIkiIiM I)c f(ir the Hillr (ii«t, of H. ;
mill tll.'kt if u i<;il(' iif imi't of It. pl'oilui'nl "lioil^'ll
the iiortioii l.'iHt iMi'ti'il Nvitli liy the iiiortgiiuor
hIioiiIcI ln' tir-l Molil. Ittirbf \. h'rrli/i, 17 (..'uy.
A. liuiiig the ri'jfidturril iiwni'i' of Wliiteiicru
nm\ hliU'Uiu'nr ami other lamlx, iiiortga^ed all to
Iilaintill'. Ife then noM Whiteilere to II., anil
iifterwai'ilM Itlarkaere to K., eoveiiaiitiii^ in each
(Mm' a>,'ainNt all ineiiniliranee.s. '{'he variunx
iiixtrnnients were re.i]ieeti\ely reuintereil iinine-
iliately aftei' their i!.\ecntion ; flelil, that M '»
riuht as lietween him .anil K., wan to throw ' liu
whole niortj^agu -lul not merely a ratalile j^irt
on ISlaekacre. JuiK.t v, Jin/,; KS t'hy. (i71.
4. <)l/ll I' ('(IKIS,
l)efenilant, luini; les.sei' for years, with n right
to puriha.se the fee, in l.S.'i!) mortg.igeil to oni.' S.
for t'7">, jiayalile in foui- yeaiM, with a inoviMo
that until default ilefemlant Nhonlil liolil poHHeH-
sion. In ISdl he niaile anotlua' mortgage of the
same iireniises to the ])laintitr in fee for t'lKS,
payalile in nix years, with a similar priA iso. In
ISii.'l till' tirnt mortgage was as.signeil liy S. to
the iilaintid', ami on ejeetnient lnouglit liy him
lllHin it, (lefenilant set nii the jirov iso in the
second mortgage, on whieli there had lieen no
(k'fuult : - Helii, that the iilaintitl' was notes-
toiijied ; for I. The seeond mortgage niight take
ctteet l>y passing an interest ; '2. If the [ilaintitr
was estojuied hy the seeond mortgage, defendant
VHM ostoiijied liy the first, and an estoiijiel
against an estopiiel set.s the m.itter .it large ;
but 3. .Semlile, that the re-demiae in a mortgage
cannot mierate, lij' estoiijiel or otherwise, to
grant a greater estate than the mortgagor con-
veyed, out of which it is carved, and hero he
had lU) such title as he iirofessed to iiass. IJuaTc,
per Ilagart^-, J., whetfn r, althougli the ))r<ivi8o
could form no defence to this action, the defen-
dant might not h ■■• a remedy elsewhere to pre-
vent sneli a violati. .. of the plaintitiu personal
contract, not to disturJ) his posscBsiuu. Jumm
V. Mfdilwiij, H Q. B. ir)5.
Where a second mortgage, not noticing the
tirst, contains ahsolute covenants for title, Init
where there is no allegation in the pleadings,
and no other evidence than the mortgage thus
affords, that the mortgagor did not inmrni such
second mortgagee of tlie first mortgage before
the execution of the second, the court will not
assume such to be the case, so as to vest the
equity of redemption in such seeond mortgagee,
under the 4 & T) \V. & ;\I., c. KJ, sec. 3. Slfycrx
V. llurrUuii, 1 Chy. 44'J.
A sale of the equity of redemption had been
effected under a power of sale contained in a,
second mortgage ; and, pending a suit in the
Court of Chancery, to set aside such sale, the
iirat mortgagee, who was one of the purchasers,
was proceeding at law to recover against the
mortgagor upon the covenant contained in his
mortgage deed : whereupon the mortgagor filed
a supplemental bill to restrain proceedings at
law. Tlie first mortgagee, in his answer to the
original bill, insisted upon the validity of the
sale. From what had taken place in relation to
the premises it was doubtful whether the mort-
gage debt was not extinguished, in equity, as
between the mortgagor and mortgagee, anil the
original cause being almost ripe for hearing, an
injunction wan granted to restrain the action a
law until tlu' hearing took jilai^e. Uim v. /;,c
hit, '.'Chy. (loO.
A Noeond mortg.'igee, as such, cannot impeael
a prior-registered mortgage as fraiididi nt ;u\>
void against er' .litors, luit a Judgment i reijito
having aeeepted a mortgage, does not lose |ii
rights as a judgment rreditor. Wnrvni v, Tmi
liii\ IliiMM V. Tiniliii; !l ( 'hy. '>!(.
It Would seem that a lirst mortgiigee has imt
as such, a right to tiie n ntsaiid profits. Wlure
therefore, a puisne ineuinhraneer filed a hill ;ini
obtained the appointnienl of a receiver, wliohai
since his aopointment eolleited the rents iuii
profits of tlie iiioiierty, ami |)iiiil the snine iiiti
court, and a prior ineumbiaiieer, who w.is not i
party to the lirst suit, tiled a bill ii]ion hii
mortgage, and moved in that cause for , in onUi
to apply the rents, so p.iid in by the rereivir
to payment of his ehiim, the ciairt, iimler tin
cireiimstanccs, refused the ap|ilieatioii witi
costs, but gave the plaiiitill' liberty to renew tin
same, in sinli manner and in sueli suit a:
he should be advised. Uunk <</' Uiili^h Xm-lj
Aiiiirii-ii V. l/iiitoii, 1 Chy. Chamb, I7t").—
Spraggo.
^'. having mortgaged certain hinds to (;., siili
seijuenlly sold his e.iiiity of 'edeniption in (
portion of the lands to II,, from whnin he tinilj
a mortgage, which he assigned to the iilaiMti'f,
j<J. siil>sei|nently sold the whole of the l,ii].l.
I under a power of sale in his mortgage, ami II.
became the imrehaser : -Held, that IS.'s inn-
chase under the power of sale in the first iiu.it-
' gage did not cut out, Imt eiiiired to the heiieiit
I of \'., the second mortgagee. /)</./ v. Jliid'/niiin
OP. U. 234.— Chy. Chamb.- Holmestcd, /^f,,:,'.
A solicitor having a lien on title deeds as
against his client for costs generally, was em-
ployed by A. to prepare a mortgage from siui
client, when his professional eonneetion withtlnl
mortgagee ceased. A seeond mortgage was crinj
ted in favour of another person. ( )n det'aiilt iil
such second mortgage, the mortgagee sold uiuUT
a power of sale lU the mortgage :- -Held, thai
tliB lien on the deeds in his possession, as again.-:
the mortgagor, continued as against the [niij
chaser. OiU \. tltiinblc 13 Chy. Ifi!*.
The right of consolidating separate nidvtg.iL'l
debts (m 8ei)aratc properties, is an ciiuitaMe eiiil
and under the ()8tn sec. of the Registry Ai't, ."f
Viet. c. 20, will not bo allowed in favour ef tlil
holder of the mortgages against a puisne iiKunj
brancer of one of the mortgaged properties witif
out notice, although such right wouhl ))e eiifirnl
iui against the mortgagor himself. Bruin
CntuuUaii Ptrvtaiunt BuUdimj A ix., 24 (hy. oOJ
IX. Sale under Power of S\
1. Vnliditij of llw S<il
A mortgagee is not at liberty to
his power of sale without any rei
interests of the mortgagor. He la
trustee for the mortgagor, subject to i
claim upon the property. The assigiiie of
mortgage, with jwwer to sell or lease in defaul
gave notice to the mortgagor and the nimtgagj
of his intention to sell, I ut gave no ]}\\\i
notice of the intended sale, and notwithstaiuli
aiiill
totf
•■lot I
n.y
M
to ivi^trftm the action .a
ok vW'^'- ''•"' "■ """
a. Hiul., cannot iinp.l.
t^a^o .VH fnvn.lnlw.t a..i
Imt a juanuuM.t .■.v.l, or
;.;^litor. If-.T.MV. y..,V
,-l,y. r.i».
,1 lirst n.ortKUKi-''' !';'■:,""'•
,,ntHai..li.n-liU )\ '"■ •
uutofaivcclviT, vviohau
t collr-tnl t\K- routs .-,a
tv, a..a,.ai.lt.f-<i'UUMUt..
;"t, ,il..,\ a U\\ uvou ...
I i„ that oausc. tor an nr.Ur
..1 .i.n. t\.o oo>.vt. ....'Ur tW'
:,:a tho ai.vl.cat.on nv- U
;iai..tilVlil--tyto.v...wtl,.
;,.; 1 Chy. fUan.K 1.... -
,.,,lcovtainliv...l«toO.,sul.
^ .jaity of .v,l,.,.,l.t.on ,n a
^ .. vi^«.H-l to th. vUuut„V.
, I tho"wl."l- ot tl.c l:ma-
sale in hi>* ..."ft«"«^;. •'"'' !■•
'«e.- : -llcM, that K. s im,-
,tx'r of .ale in th. I..-Ht >.....^
t mt L.nniv.l to the Wiatit
•;tS!:--'HohncHto,l, l!.M: I
•in. a lien on title .lee.ls a.
'f,^ eost« generally, was eu,-
ore , arc a n.ortyage fron, s. cl,
.ofe;monaleon..eet,onNV,thtl>.
" X;.eonan.ortgagevvasm.:..
'"'''' h^.ur«agee sola U..UV
uaiie, tlie nioi i),' b
fu the nu.rtgaye :^-Hel.l. .i
„„ti..«ea as against the i-u
,„«oliaating«cvarate.v,..rtg.|;.|
ovcrties, 18 an en. itabK >H^
Btli sec. of the Ucg.stvy Act • 1
ut 1.0 allowe.1 in favour ottlK
2353
MORTOAOE.
23.14
ii
.,.>*• lie alloweii oi I'
rtiaSs against a l.uisne...c..m-
Enort«age.l properties with-
.^rsudii^ftwouUheen-.
,^ortgag.n- hunselt y- ■
1
is
xle
UNDER Power "^ '^'
'niidlly of thi- SnI
not at li\.erty to
kie without any rei
e mortgagor. He .»
I xnortgagor, -j^^^^^ ^, , of I
Lri;^i^ot.ith.j
iuilelj
to the]
■ict
iiVl
tlie prott'Ntof tlii> inortgauee, who hail envenanted
to make g 1 any ilelieieney in eane of a Hule
Ix-'ing enforeed, proeeeileil with the Male, ami Hold
tor little more than half of the Italanee due to
a perHon eognizant of th»^ faetn, and then pro-
ceeded agaiimt the mortgagee for the delieieliey.
'Pile lourt net aHido tht^ Male, hut refiiHed the
plaintill' hii eoMts, he ha\ Ing made unfounded
rliargi'M of frauil and eidluMiiui against ilefendantH.
I'ii'lniiiiiiil V. Ei'iiiii, 8 I'hy. TiOS.
It in the BettK'd rule of e(|uity, that a mort-
gagee, in exercising a power of Hale must take
reanonalile means of iireventing a naerilice of the
[troportj". Wln^re he took no means for that
purpose, and hoM the property for half its easli
value, tiie price received heing near the amoinit
due to himself, the sale was set aside. Liilch v.
Fiirhwj, I'J fhy. 'Ml
A huilding Hociety advertised for sale the
mortgage [iroperty under tin'ir power. At the
luction it was stated by the auctioneer that the
price to he paid for the preuiiMes was to lie over
and ahuve the amount of certain other mortgage
delits against a portuin of the same est ite. One
lit the directors, who was also sidicitor to the
society, hid oil' the property, though it after-
«anls appeared that he had acted only as agent
tor a thinl party. After the sale the purchaser
liought up tlie interest of the other mortgagees,
who had already commenced proceedings to fort-
.liise, carried on the foreclosure suit, ando))tained
:i tinal decree of foreclosure, no notice heing
taken of the fact of the money having heeil paicl
to the mortgagees. Hefore this onler, however,
the mortgagor, claiming to have the surj.lus of
:iie purchase money over and ahove the amount
i]f the mortgage under which the property was
sold, filed a bill to redeem, when the agent of
tlie jiurchaser swore that he hacl not intendeil to
hid the sum he did in addition to the amount of
the nu.rtgauo j.aid otl". The court set aside tlie
sale, and ga\e the mortgagor leave to redeem.
The I'hancellor disseiiteil, and thought that tlie
sale already made should l)e carried out, and the
■iiirphis of the pui'chase money paid to the mort-
,'agc)r. Mmitijituiirii v. Font, ■") Chy. 210.
A person purchased under a power of sale in
,, nmrtgage, Init the sale was irregular, and was
set aside: lleM, that, as a condition of relief
against him, lie sliould l)e allowed tor all improve-
ments made under tlie belief that he w.as absolute
owner, so far as they enhanoed tlie value of the
property, but no further, and not only such
inn.rovements as a mortgagee in possession would
have been entitled to make, knowhig that he
was a mortgagee. Varrull v. IMnTtmn, 15 Chy.
ITS.
Where the sale is not properly conducted
■' ' ■'' the fai.ltof the solicitor, the mortgagor,
1 her party interested, as well as the
'I'ortgagee, has a right to complain thereof. On
.iich a sah' the solicitor of the mortgagee cannot
|iiuvlui«<' lough the proceedings for the sale
\.erc n< .tkcii in hia name, and it was not
shewn th:tt any loss had occurred by reason of
iij being the purchaser. Jfoimnl v. HunUiuj,
!S Cliy. 181.
On a sale und. r a pov-.T of sale the clerk of
ihe mortgagee's att(U'ii purchased but paid
nothing, but the mortgagee conveyed to him,
ami he immediately recoiiveyed to the mortga-
148
gee: -Melil, that the sale w.is invalid, ami tlio
property still rrdci'inablc, although the mortga-
gor imniediattdy after the sale ai'ceptcil a h'Jise
of the proi)erty, /iV/.i v. Ihlltilniioil,, |."» Cliy.
A p.inhase by a sciMiid froMi a prior inortj<a-
gee, under a powiM' of sale in the lirnt niortg.ige,
was sought to be Net aniclc, on the ground mainly
that the niortg.igei' was a trustiu! for the niort-
g.igor; but the court uphcM the tr.insaction, and,
the purchaser submitting to be redeemed in
respect of lioth niortg.igi's, directed the cause to
stand over for the pur|iose of making the mort-
gagor a party to tliu suit. Witlkiin v. Mt-Ki llrr,
7 ( 'hy. .'.S4.
Where a mortgagee against whom judgments
are registered exercises a power of nah', his judg-
ment cniditors h.ave such an interest in the iluo
exercise of the |)o\v,'r that tlij court will grant
them relief ag.unst tin: mnitgigee exercising it
to their disadvantage. ('niiiiii' ,vinl llmik' v.
WiilMiii, .■) I.. .1. Iti;t. Chy.
Where the bill alleged facts which shcweil
that the lands hid been sold by the inortnageo
under his power of nale for less than onelifth of
the value ; and alleged that the mortgagee. " in-
tending to acc|uire title himself to the said land
' ' caused the said lands to be sold fur the
nominal sum of ^^401) to one (!., who paiil no
eoiisider.ition thei'efor, and on the s.iiiii' day
conveyed the same to the defendant .Ann Watt,
the wife of the mortgagee:" that "Ann Watt
hail paid no ciuisiileration for the pretended sale
and conveyance of the s:iid lands to her, and
was well aware that the said sale and convey-
ani'e took place for the pui'iiose of depriving the
lilaintiH' of her just rights in tlu^ ])reTnises'' : —
Hehl, this sutficiently alleged the mortgagee's
intention to become himself the purchaser.
S/iiiliiv. Wait, 1(! Chy. 2t;0.
2. Other C'(,.<f.y.
Tn ejectment, where plaintill' claimed under a
deed executed by a mortgagor under power of
sale: Held, that the est;ite in the mortgage
having become absolute in law in the mortgagee,
there was no necessity for shewing that there
was a power of sale in the mortgage to convey
the leg.il estate. Xi-Mf v. /i';<v, 14 C. 1'. 409.
Where a mortgagor becomes buikrupt the
iiKU'tgagee is not compelled to go in luuler the
act, but lUivy proceed to sell the property under
a power of sale in his mortgage. Gitrdon v. Rdhk,
11 Chy. 124.
Pending an appeal from the Court of Chancery,
a mortgagee was restrained from j.roceecling to a
sale of the mortgage premises under the j.ower
of sale. Cnmmi'rriul Bank v. Bunk of Vppei'
Canada, 1 Chy. Cliamb. (i4.— Esten.
Mortgagees, under their power of sale, sold to
M. for $7,800, and gave liiiu pc.ssession. M,
paid a deposit of !jGOO, and gave his promissory
note for SfiOO more, which he duly paid. He
also executed a mort^aKe for .'54,000 which was
duly registered, but diti not pay the residue of
the purchase money, .'J2,(>00. The mortgagees
executed a deed, but retained it in their posses-
sion. Their solicitor also did some a'-ts as if the
sale was complete ; hut the court, being satisfied
§^, i
i
2355
MORTGAGE.
' t; ' ,1 : i\
I I (
I
I'm
; ■■ 1',
thivt the jiiirtius i-u^'anlod tUu transaction ;is still
in fieri : lIuM, that the mortgagees were not
responsible to a suhseijnent inciinihraiicer for
tlie iJijCiOO, or ehargoahle with ni<ire thiui they
luwl reeeiveil. The Itill of a suhse(|'ient in-
eunihranccr statei. a eonijileted transaction. Tlie
mortgagees, through oversight, allowed the hill
to l)e taken pro eonfosso, and a decree was made
accordingly. The nlaintilF desiring more exten-
sive relief, tiled a petition in tlie nature of a hill
of review. The mortgagees, in their answer to
this, set up the facts which shewed tlie trans-
action to he not completed. The court considered
the whole ease to l>e rc-opened l)y this petition,
and <Iecidcd tliat the sale to their vendee did
not atl'ect the rights of the mortgagees, anil that
they were ehargeahle oidy with the amount
actually reeeiveil fioni the purchaser. T/n Bank
"/ f-'l>l>*'i' C'liiaiki V. iVallair, Hi (,'hy. '2S0.
If a Hr.st mortgagee, with a power of sale, sells
to a puisne ineundirancer, the i)urchaser ac-
ijuires an irredeemahle interest, as against the
mortgagor ; and this, though such suliseipieut
incumbrancer had been paid otl', and Iiad in hand
moneys of the mortgagor sutticient to pay oil' the
first incund)rance, but not specially intrusted to
him for that purpose, llnnni v. WuodhoHtr, 1-1
Chy. 082.
A solicitor's lien on title deeds for his profes- '
sional services attaches and continues, although
the property to wliich tliey relate has passed
from the ownership of tlie client for whom the
services were performed, by sale and [lurchase
under a power of sale contained in a mortgage.
The pnrjhaser takes the interest of tiie mortga-
gor subject to the lien, (lill v. <i'iiiiilili , '2 Chy.
Clianib. 1 ;{'). — V aiiKoughnet.
See Jiarh/.-, v. Jien^ni, 21 Q. H. 14.'?, p. 2299;
Ford V. A/lin, 15 (."liv. iiii'), ]<. 2.T)!t ; Jfns v.
/i>'r.{-rtt, 2 Chy. (;.-)(), p.'2,Sr)2 ; Ihiiihh v. Jhinil-
>!<»i, 9 Chy. 173, p. 23(i7 ; (IwiinKl v. (lurhult,
J3 (Jhy. .^TS, p. 231 1 ; lior v. Hnil,j),imi, (> I'. It.
234, p. 23.")2 ; Tni.il nml Lintn i\i. nf Cdmula v.
/fo«//w(, ISChy. 234, p. 2311. ' i
X. EeDKMI'TION ok MultTKAliF.S.
1. EqUllil iif J'li/i iiijifjiiii — /^s Jiirli/i ut/i, ilr.
Bill by judgniont creditor, to redeem prior
mortgages, and foreclose sub.seipieiit purchaser
with notice. likiuntaL v. liattk of Cjiiicr Can-
ada, 2 O. S. 31.
Per Kohinson, C. .!., and McLean, J. -.The
Court of Chancery, under the llth sec. of tlie
Chancery Act, may, under certain circumstances,
refuse redemption, notwithstanding twenty years
have not elapsed since the mortgagor went out
of po.ssession. Per Macaulay and Smith, Ex.
CC. — The court has not, nnder this section,
power to refuse rt^demption, where by the law
f)f I'vUgland the party would be entitleil to re-
deem, but has only a discretion of imposing
terms diflferent from those which would Im; im-
IMjsed acconling to the strict rules in England.
iSim/iHon V. Sitiytli, 1 E. & A. 9.
The court under that section may, under cer-
tain eireumstanees, refuse redemption, notwith-
standing twenty years have not elapsed since
the mortgagor went out of possession. ,b'. C. lit.
172.
.Semble, that the relief given to
by section ,■) of the 32nd ofthe gene
.June, IS.").'?, in a suit brought again
a mortgage, payable by instalments
be .att'oi'ded him, or those claiming
upon a bill filed on their own behalf
Miriitt, (I Chy. .wO.
The rule that a mortgagee of sc
may refuse to be redeemed in respect
docs not ajpply where a sale is aske
incumbrancer. J/i rritt v. Sliiilieii'toii
But on a re-hearing' the court on
count to be taken of what was due
securities, and in default a sale, bi
that in the event of a sale the pre
be conveyed to tlie purchaser relievei
of such subseipient i lortgagee. I li.
Although the holder of several n
the same mortgagor, on separate pn
the riglit of refr^ing to be redeeine
of one of the securities, yet he may
deprive himself of this advantage. '1
were mortgagees of lots 27 and 29,
the same person, and K. being about
the eijuity of redemption in 29 wroti
rctary to ascertain the amount d
adding, "How is it made uj), as I w
, take it up'r" The answer was, '■'■>f,
off * * hian on h)t No. 29 *
before 1st Feln-uary, 1S7.'>. " Subs
enclosed to the secretary his check
stalnieiit, saying, " I wish to pay yo
on this property, or up and
iiient at some future time if necessai
the second niortgage on it, and nial
nient on that condition," which tl
acknowledged the receijit nf as "first
interest and costs on L. 's hrst lo;
that under tlie circumstances the co
precluded from afterwards insistii
right to be paid the amount secure
before releasing lot 29 to the injury
had subseijuently purchased the e
1 demptiou ; and this although at
making such iminiry K. was aware
gage on lot 27, and had dealt with tl
ill respect thereof by accepting a seci
/)i)iiiiiil<iii Siirini/.'< iniil Inn xtiniiit Sn
don V. Klffrldi/i, 23 Chy. (i3l.
A judgment creditor comingin to re
' gage incumbrancer is entitled, upoi
the amount ilue to tiie mortgagee,
nient not only of the mortgaged )iii
all collateral securities, whether the
ject to the lion of the creditor um
ment or not. Therefore, where
been recovered and duly register
: party who had a contingent iutere
personal property, subject to a n
cuted by way of security for advai
debtor had effecte<l an insurance
which he had also a8.signed to the
I as an hidemnity against loss in resj
executed by him as surety for tl
i Held, that the judgment creditors
' gagor, upon paying the amount d
I mortgage and indemnifying the iiii
speet ofliis liability as suiety, wc
a transfer of the policy of insurano
the niortgage upon the contingent
to foreclose the mortgagor in detail 1
(Jilinvur Y, Vnnicrvn, (i Chy. 290.
i#.;^iahW4#^^.0*^W,»:^iA*rti«<.a(fe*V.^^
2350
23o7
MORTGAGE.
2358
, a suit 1"-'.'"«^^\ ''f.X ^voul.l aU..
^^^^•^:SoraS:S'una.vhH,„
::;^;:\£owubchau. ^/ -
V. ">"'^- ^ , ,
4-1,.. coiut oraereil :iu ;>■ •
•o-lK^ann:; tu, con ^^^^^ ,,,,,,,, tutu,
tak.'u ot /^' f „\.^u., Imt ii.tmut.u
,vcnt ot a ^i.Jlaievea.-fauyliH,
;;rS"l;.;"ol\^-^\;\;--
1,0 securities, yft U'- "•^> •
If of this adva^itagc _^
lots •-/ i"^«^ -
mso
tgageos
person,
The \ilaiiitili-
IK. being about to vuv'
■ 'I'd wrote to tU
, -.,...tavvbisclieckf..vrn>tn,
^ ui. ana take ivssigii^
st February
to
t, sayiug. ,
l.roverty, '"• ^ jf , ^cessary, a. 1 M'\
, su-.ne tu.aro tunc U . ^^^^^^^ ^j^_^ j,^^^.
oud """-^i^'^e::;; •• \lneli tlie se.rct..v
,UgcatUereec.n.V.-J,,,,,..^_VW,l.
xu.l costs on ^1- , ^.^,^> ^^^oinvauy «w
(111 tlii'iv
.mount «ecureu ...j^lnt^j:
loan
'-^-^hc circvn^;;^ ^S"
'i *'■"•"; tt — t «ecure.l ..
^'^'^''' ,M4tothein.i«vy"{.
K. was !
veU.asn.g^H.v -.^^^^_^^^,^^ the e-juity
ana this aUWy^^^^
L,nentcreaitovcomu|gm^^^^^ ^^^^,,^,„
fcnnibrancer '^^'^^ .t' ' el. to au as.gn-
umnt .lue to tne mm^^ H ..r^nnsex, I'lt .1
Lateral "^^'^^.^^'V ^J ut.r mulur the ju;l..;
the lion ot. tlie uuU . ^ , ^u
In a redenijition suit, upon its appearing that way of mortgage, carries with it the riglit to
K., a purchaser for value, with constructive but redeem tlie term. ('liUhohii v. Shutilmi, 3 Chy.
without actual notice, lield a registered title of ()">5 ; 1 Cliy. 108; '1 (_'hy. 178.
tlie lands, as well as S., to whom he had sold, u i , , ,. . , o ■>-,.,,
the hill was dismissed as against K., with costs; ^'V''- ''>' >f i'";""! ^^I'ragge, \ .( ( ., that the
and the plaiiitill praying specifically for a recon- I'li'-^h.'scr at sherill s sale ot a reversion in lands
vevanceof the niortgage.l premises : Held, on '""rtgaged tor a term ot years, is entitled to
rediearing, that he was not entitle.l to pers.mal redeem the inortgag_e tor hisown l.enelit. Wnkr.^
relief under the in-ayer for general relief. ///•.(/*./»(! ^'^ '''""''' " *-"y- •*•"•
V, Chidiitii-x, y L'hy. •I'.i'd. See .V. t'., 7 t'hy. iV,)7. ' A mortgagee of lands not p.ateiited i)urch.ased
\S. sold land to M., giving a bond for a deed, ^l"'"' :'* ^''^'-itl's sale uiuler executions against
^. .o the nnii-tgagor, to whom the lands had been con-
veyed at the instance of the execution creditors,
in order to enable them to take the lands in
I the
■or not.
Therefore
i^n.l duly
^l-'^^'^^riSecttoamortg^^g--
where .iudgn
registered against ,i ]
it 111 o-"' ■
ami tliv
for advances,
ranee up""
his 1*.
ial property
l\v way of security toi
I had effected an »»'*"'"-;-tUo-same ycr*""
li^had also ^^«-f;.^iJ\i! ,ectofU*l
tuletnuitxagamstloHH" . 1,^^ ,i^,,„, -
V^l^'>\'^'^.;:.r^Sed.to..oftl,em,;r^
[that the 3"''
Igment
due \w
M. assigned to plaintitl' his interest in this bond,
as also certain cliattels, in security, but retained
iKisscssioii of the instruments. Suhsei]iiently M.
assigned absolutely the bond to ('. , to whom
(with notice of tlie prior securit}') W. conveyed
the iiremises, taking back a mortgage for unpaid
imrcliase money, upon wliicli \V. filed a bill for
Icireclosure against 0., making the plaintitls and
their co-parlners in the business defeiid.ants .as
iiicunihrancers by reason of a registered jud^'-
meiit, but they omitted to set up any interest 111
the premises by reason of the security given to
them by M-, in which suit the bill was taken
coiifesso, and a final order for foreclosure
obtained against all the other defendants.
during,' the absence of the mortgagor
countrv, and the mortgagee then
\iro
was
1,1- tilt
Lfer..fthepohcym — ^,i,,,,e.,an
execution,
from the
claimed to ludd the lands absolutelj":— Held,
(••^praggo, V. C, <liss.) that tiie estate was still
reileeiiifible. Ai'riilsitii v. Cuniiilis, (! Chv. ')43.
Upon a ti. fa. against the executors of a mort-
gagor, a writ against the lands of the testator
was sued out, under which his interest in tlie
mortgage pivmises was sold, and afterwards tlie
purchaser ohtnined a conveyance of the leg.al
estate from the moitgagei'. all of which took
place after 7 Will. IV. c. •_>, ls:{7 :— Held, th.at
the devisees of the mortgagor were entitled to
redeem. Walloii v. li< muni, 2 Chy. 344.
Where there were several defendants interested
in the eipiity of redemption, and one piirch.ased
several outstanding shares of co-clevisees also
interested, and so dealt and acted that the other
was bound to pavto tiie , l"^y^'''« '">'''^''*""^ •■^=*"""'^"V"'*^ '"^ intende.l to
■ • J/,., redeem for their mutual benefit, instead of
\ which he arrangeil with the mortgagee to suffer
foreclosure and then bought from him, it was,—
Held, that he could properly do so for his own
sole benefit. /'iit/dii v. Livi^fuiitr, 2 Chy.
( 'liamb. 108. — VaiiKiuighiiet.
'I'he owner of property mortgaged it, and then
died, having devised ouedialf the property to
one son, and the other h.alf to another, charging
each with an annuity to the testator's widow.
One of the sons afterwards died intestate, , and
his w'dow paid off the mortgage and took an.
assignment to herself : — Held, on rediuaring,
that if she was willing to make the annuity a
first charge on the property, the testator's widow
could not insist on reileeining the mortg.age,
L'liKj v. LuiKj, 17 Chy. 251 ; 10 Chy. 2:W.
paying.
On a bill against W. seeking to redeem, or that
he should pa J' ofi' the claim of the plaintitl's under
the security from M. :— Held, that M. was a
necessary jiarty to the suit ; and also, that W.
had a right to pay them otf their claims against
M., and to call for an assignment of the other
securities held by them for such claim, the
aniiiiiiit of which M
jiliiiiititfs or W., in case of his
i^mMih v. M'liitcr, 10 Chy. 4(i4.
M., the owner of lands subject to a mortgage
ill favour of S. & 15., ami to a charge for an an-
nuity, mortgaged them to S. & B., with covenants
for title, right to convey, freedom from incum-
brances, and for furtlier assurance. .S. & B. took
yrocectliiigs upon their several mortgages, and
ultiui.ately M. w.as foreclosed, but the person
iiititled to the annuity was not niaile a party to
the cause. Subseiiuently M . became the assignee
(if the annuity, and instituted proceedings against
the ilefeiulants, who were purchasers from S. &
B. It appeared that the whole of the land sub-
ject to the annuity was not covered by the mort-
gage from .M. to S. & B. : — Held, that as to the
iither jiortion of the Lands covered by the mort-
gage, y[. being bound by the covenant to pay ofl"
the aiimiity, the court W(Uild not enforce it in
M.'s favour against such portion ; but — Held,
that this would not prevent the charge being
,3. Tvi'iii.t iif Rail ii'tifii'ii — Aiiitiuiit piiijahh'.
Where the adiuinistr.atrix, having bought .at
enforced the etl'ect being only to postpone the ; ,,,^,,i„., ,,^i,, ti,,. interest of the mortgagoF, pai.l
cWge of the annuity, as against sucli portion of ^,,j. j,,^. „„„.t^,;,^,^ ,i^,,t^ ,„„i t.^^^j,,^, ^he property
as her own absolute estate, afterwards mortg.aged
it, the court, at the instance of the heir-at-law
of the mortgagor, <lirected an enquiry as to
whether the property was purchased at sheriff's
sale with the assets of liis ancestor, and that the
j amount so apjilied shouhl be deducted from the
amount due upon the mortgage given by his
ancestor, and that he slumhl lie let in to redeem
the lauds, to the mortgage given by M., and that ;
M. was entitled to redeem in order to make the 1
charge availahfo to this extent. Seinble, that 1
, if the lauds covered by the annuity and the |
; mortgage from M. were identical, the court 1
I wonM not enforce the charge in favour of M.
! Mthnn V. Mvxirx, 21 Chy. G43.
See Pavhr v. Vtiu'growcni Aim., 23 Chy. 179,
2. Who entitled to Reikem.
Hehl, Blake, C, diss., that a sale by the sheriflf,
|iimkr a ti. fa. against lands, of the reversion
Ntir a term of 1000 years ha<l been createtl by
balance. Wurnn v. Mc-
uiKm payment of the
Kenziv, i Chy. 43(1.
A security void at the time of its creation on
the ground of usury is not rendered valid by the
l(i Vict. c. 80, passed at a cubscciuent date.
Where, therefore, a mortgage had been niado
upon a usurious agreeniei.i, tiic court (thcChnn-
lio' V.
2359
MORTGAGE.
oellor diss.) : — Helil, a judgment creditor of the : was bought by the ^)^esent owner in 1837,
mortgagor entitled to tile a bill to redeem upon , made considerable improvements on it : — I
paying the amount actually advanced before the ! that this property was not redeemable bj
expiration of the time appointed for payment. ; mortgagor in 1840. McLdUm v. Maitltt
IsneriLujod v. JJ'uoii, 5 Chy. 314. Chy. IM.
The solicitors of the mortgagees gave the
mortgagor a memorandum of tlie amount due,
and, rulying upon this, B. purchased the equity
of redemption. Ujjou a bill to redeem tlie court
held the mortgagees not bound by this amount,
the evidence sliewing that the solicitor was not
aware that the mortgagor liad en(iuired on be-
half of B. Moffatt V. Bank of Up}ii:r Camula,
5 Chy. 374.
Tlie owner of property sold and took a mort-
gage for the purchase money by instalments.
Default liaving been made in the first instalment,
judgment was recovered upon the covenant ;
whereupon tlie purchaser tiled a bill, setting up
that a tenant of the vendor, under a lease ])re-
viously made, had carried away the crops, and
lirayiiig to redeem upon payment of the judg-
ment, less the value of these crops. Tlie court,
by consent, directed a reference ns to the damages
sustained by the removal of the crops, but re-
fused to interfere witli the ju<lginent, the re-
maining instalnientE being more than sutticient
to cover such damages. Moore v. Jhrritt, (j
Chy. 550.
A mortgagee sold the mortgaged property un-
der a power of sale :— Held, in a suit by the
mortgagor for the suqjlus, that tlie mortgagee
was entitled to retain arrears of interest for more
than six years. Ford v. Allen, 15 Chy. 5(i5.
Since the passing of the Administration of
.Justice Act, 30 Vict. c. 8, O., and to avoid cir-
cuity of action, the court will allow interest to
a defendant, for more than six years, in a suit to
redeem. Jfoicircn v. JJradhiirii, 22 Chy. KG.
AVliere the answer of a defendant omitted to
set up a claim to interest for a period exceeding |
eight years, the court, on an a]jpeal from the j
master, offered, if it was necessary that such a |
claim should be set up, to allow the defendant
then to do so, as all the facts were before the
court. lb. i
In a suit for setting aside a purchase by a
mortgagee at a sheriff's sale, and giving the par- !
ties interested in the equity of redemption i
liberty to redeem, the court, while granting that ;
relief, refused actively to enforce the sale by ■
requiring the mortgagee to give credit for the ;
purchase money in reduction of his debt. J/c- i
Laren v. Fram-r, 17 Chy. 533. |
See VI. 8, p. 2334 |
4. JIoio Barred or Lost.
(a) Lapse oj Time.
In 1821, the plaintiff mortgaged three proper-
ties, to secure a debt payable in the following
year. It was not then jiaid. Payment was
urgently demanded in 1827 ; the mortgagees
Ijeing then in great difticulties, and the debt
ptill remaining due, the mortgagees sold and
conveyed, with absolute covenants for title, one
property for about i*s value, and gave credit for |
the amount on the mortgage. This property
afterward! passed tlirougu several bauds, aud j
The owner of real estate created a mortj
which became absolute for default of payr
before the passing of the Chanucry Act, 7
IV. c. 2. Proceedings were subseciueiitly
tuted to foreclose, and in December, 18'
final foreclosure was pronounced ; and tlie i
gagor continued to reside in the neigliboui
of the property, until January, 1854, who
died, having devised all his real estate t(
widow. The mortgage premises, after pa
through several hands, Avere purchased 1);
solicitor for the plaintiff in the foreclosure
It having been discovered tliat the iiiortj
had died sometime before the day apiioiiitc
the payment of tlie money, the widow
a liill to redeem, but neither the solicitor iir
agent who conductetl thi suit to forcclost'
eitlier of tlie purchasers of the jiroperty,
aware of that fact, or of any defect in tlie
ceediiigs. Blake, C — Held, that the procetM
after the deatli of the plaintiff were nulli
that the solicitor must be taken to liave
notice thereof ; and that the right to redeeii
never been foreclosed. Spragge, V. ('. -I
that the proceedings were merely irregi
that the solicitor was a purcliaser for i
without notice, and was not IkiuikI by the
within the knowledge of his agent; and tlia
right to redeem liad been extinguished. V.
V. C, gave no judgment. Arkell v. WiU
Chy. 470.
Held, on appeal from the above, that tlii.'j
a proper case in which to witlihold reilciii)]
under the discretion given to the C(piirt, ii
tlie eleventh clause of the Chancery Act ;
that the purchasers could not reasonably lie
to have constructive notice of the defect
proceedings ; and dismissed the .appeal
costs S. ('., 7 Chy. 270.
In November, 18.S4, the owner of Luii
veyed in fee for t'15!), with a proviso that
gr.antor during his life, or his heirs, ifcc,
year after his dece.-ise, should pay that sn
interest, the conveyance shouhl be V(U'
August, 1835, the grantor died Avitlimit 1
paid anything, and his representatives h.u
nothing. Between 1841 and 1845, tlie j;
oft'ered the lieir-.it-law of the grantor to ii(
on payment of the principal and interest tlii
(.t'225), but he declined, stating that the lam
not worth it, and subsecjuently went to nsi
the U. S., where he died, having coiiviyt'
interest in tlie land to M., who dieil in
without having registered his deetl, or iiiai
claim to the property. In 185(5 the liuii' <
a minor, filed a bill to redeem ag.ainat tlu' gl-
and his vendee, who had been in possus.sion
his purchase in 1851, and had ma<lL' ini
ments to the v.alue of aliout £700. < 'ii a
this court, reversing the decree l)elo\v, :
tlie relief asked, and dismissed t)ij plain
bill, with costs. Stanton v. MeKMinj.
A. 2«5.
Held, that the Dormant Equities Act ilm
apply to cases of actual mortgage — that is i
the proviso for redemjition apjiears on the
of the iiistrumeut creating the iucuinljr
ilfiii':
,i,iHia.s^iiijm£jiSiiC&smmm^
23G0 ■ 23G1
,.eBento^^•ncrml837,who
Innm.vementa on It :--Hd ,
was not reaecma1.1e by tht
.1 estate crcatcA a mortgage,
U te f or aefanlt of I'-'^y"'';'.', '
the Chancery Act, 7 NN ill.
•gf^cVeBuliunently-tv.
anil in December, l*'*-' '^
;«pon mcea;anaV>c7'rt-
' iSle in the ne.gbbourbuna
"'V .HUB real estate to \m
setl all u»8 run ,,,wsiim
i-tLraiie vrennses, attei i>.v»hmt,
, uut lere i,urclia«e.l by tlif
KiSin the foreclosure s,ut.
Use vere.l that the nu.rtgag.c
e before the aay api.o.ntea u
the money, the wulow l.le.l
' „f 1,.. taken to have l\ail
''\Tvt herT«httore.lcen.l>.,l
ami that the ngui. <• ._HuW,
.dosed. Si.ragge, V \- \^^\
wleage(.fhisagenV.anUli.tUt
,, ,H.eenextjngn.W ..St.
, jmlgment. Aii^tu
1 e „. +li(> above, that this \v;is
l'"'^^''rtovvHhh..l'lre.U.,ni,t,.;u.
in which to ^^1^"' „.t ,„„u.r
cretion given to tUe u u
, f tiw' ( hancerv Ati , i"ih
b Chy. 270.
itt-U the owner of land c(>ii-
^:.'.\'f Jt^^ a proviso that,.- tk.
L>r li-'.'i "'",. ',„.,,„ «.,, in line
!'"^^'^'^'r/Xl%v that sum .nil
decease, ahouW pa, tna
vomng fte aecrcc If", i,„j-,
1 the Dormant E,ni^es^A;J;J-i I
Is of actual '""'tg''^"-;!'' , ,.^,^,
MORTGAGE.
23G2
The principle on which an ecpnty of reilenip-
tion ia founded ia relief againat forfeiture ; and
the ecjiiity is not to he allowed where the mort-
gagee has iHion guilty of no misconduct, and
from the dealings of the parties the allowance
woulil work injustice, though twentj' years have
not elapsed since tlie right to redeem accrue<l.
Skrii: V. CliajDiKiii, 21 Chy. 534.
Where a mortgagee liad bought an eipiity of
Such cases are to be dealt with under the 11th
clause of the original Chancery Act. So long as
the mortgagor remains in possession of the iiiort-
gaged estate, the twenty years limited for him
to redeem does not begin to run, for so long as
ho holils jtossession he is entitled to pay or ten-
der the mortgage money and interest, and if in
the meantime the mortgagee should take pro-
ceeding.s to dispossess liim ))y ejectment, he
could at any time before judgment stay proceed- „ . .
ings )>y paying the amount due into e'ourt, with J redemption at a slieriff'a sale, the sale being sup-
costs. JIall V. Coldirrll, 8 L. J. <J3.— E. & A. j V"»"'^ by all parties at tiie time to be valid,
' though in fact invaliil on technical grounds ;
In mortgage, as well as other cases, the dis- hut for seventeen years hefore tlie tiling of the
ahility on account of infancy is to be aUowed for hill to redeem sales and re-sales had been made
in the computation of the time allowed by tlie I from time to time of various portions of the
statute (C. S. U. C. c. 88) for the bringing of ! property, on the assumpticiu of the sheriff's sale
actions. //'. ; lieing good ; huildings had been erected; some
On the Kith of .Tanuary, 1831, an al.solute ^ I'"''''* ''''""' "^'"iJ'"'';^'''"^ 1'"^ "i;: ''''"^'^*' ''"'1*
conveyance wiis ma.le in fee to secure a loan, the ' "'!' ""^ l""T"«e altered to suit other purposes ;
alleged mortgagor remaining in possession until | "^"t'' "'"1"«^"*' '""' >"'l'r"vements thereon made,
ii . „;.,., ,.fn?_ii <>., fi... i^f f \i,.,.,.i, luj^i tiehl* and commons heing converted into sites
the spring ot 1841. Un tlie 1st ot ilarcli, 1841, I j. , , . , ,1" 1 ^1 1 r
., ^11 ° 1 i, i 4. 1 I tor sliops, hotels, a hank, an<l other places ot
the alleged mortgagee wrote to a suhseiiueiit , 1 • ,. 1 1 1 ' ,, 1 •
, Z* c ii.,",.?. _i... .!_;. .:...' ,.,,, husiness, and into gardens and yards; all hemg
mortgagee of tlie same property, claiming tl!>4
l'2s. 8d. as due from the mortgagor ; and on the
7th and 21st of .luiie, of the same year, he again
wrote to the same iiicunihrancer alleging tliat lie
bad originally advanced alxnit t(iO, which with
interest then amounted to £!tO or JtlOO, ami sug-
gesting that the land should be sohl for the
lieiietit of the alleged mortgagor, and he kept an
account in his books against the alleged mort-
trnffiv of principal and iiit.jrest in respect of tiie . ,. , .
alleged debt up to the 1st of January, IH,")!;. Tlie "i^ii"'<l=">t-^
i" 1 ;., 1 _ 1,. 1 i.1 i. hundred
sulisei|uent incumbrancer purchased the mort-
gagor's eijuity of redemption. I'pdii a Itill tiled
liy such mesne incumbrancer in February, 18(il,
dauuing a right to redeem the premises against
the representatives of the alleged mortgagee,
wild had <lied in the meantime :- Held, that
the letters written by the mortgagee were sutii-
cieiit to take the case out of the Statute of Frauds,
ami that the right of tiie plaintiff was not barred
liy till' provisions of the Statute of Limitations ;
tliat the act relating to dormant eipiities diil not
amily to the facts of this oa.se ; aii<l that the 1 1th
oliuise of the Cliaiicery Act did not atfect the
\il,iiiititV's right to redeem. Mnlludi v. I'iiiln 1/,
U Chy. ."iriO.
done with the cognizance of the mortgagor's
heir, who fur ten years of the seventeen Wijs
aware of, or had reason to suspect, the defect in
the title of the parties ; anil his hill was not tiled
until a large unsecured debt of the mortgagee
against the mortgagor, greatly exceeiling the
value of the property when sold hy the slieritl',
had heeii outlawed, and until the persons inter-
ested in resisting the plaintitF's claim, and made
to the suit, numliered nearly one
Held, that redemption would be
and the hill was dismisseil, with
ineijiiitable,
costs. Jh,
The effect in such a case of the statute 3(! Vict.
c. 22, (). , giving a lien for improvements,
reiiiarkod upon. //>.
In 183."), D., the owner of laud, sold and con-
veyed the same to .S. fur €310, and a mortgage
was executed hy the pureliaser for the whole of
the consideration money. In 1838 S. sold and
conveyed his eiiuity of reileiiiption to K. In
1842 tiie original vendor tiled a bill of foreclosure
against S., <in whieli a liiial ilecree of foreclosure
was ohtaiiied in August, 184."); hut to this suit
K., through some oversight, was not made a
party. Sixteen months aftorwanls 1). sold the
same property to auother purchaser, who, in
October, I8ri4, mortgaged to defendant W., and
was occupied and cultivated by the mortgagor he in Septemher, 18(iO, ohtaiiied a final order of
M a farm, the others were wild lands and un- foreclosure, by reason of default in iiaymeiit, and
iiaiiiiied. No attempt was made to disturb suhseipitntly conveyed to his co-defendant.
sutii occupation until 1848, when ejectment During the time \V. held the land he paid a sum
was hnmght anil the mortgagee put into pos- for taxes exceeding the original pur jh;it.e money;
session of the cultivated lands in 1840, but K. never having paiil anything on account there-
no step was taken to obtain possession of the of, or of the nioiiey' or interest secured by the
wild lauds, other than the fact that the niort- iiiurtgage from S. to i). (of 183")). In IS"(5 K,
meu had always from the d.ate of the mortgage died, and the plaintiff, his heir-at-lawand devisee.
Kill' the wild land taxes thereon, and had also, in.ruiieof that year for the tirst time discovered
111 1831 a mortgage was created by a convey-
ance, alisolute in form, takiii" back a bond of
(Itfeasance, on several lots of land, one of which
Imtimt until aftor 18.')2, sohl some of the lands,
tlie purchasers of which had taken possession of
tbeni and had continued therein ever since. On
aliill tiled to redeem in IStiO : Held, (Draper
anil Richards, C. J.I. and Morri.soii, .(., diss.)
the conveyance of 1838 from .S. to K., and there-
upon tiled a bill seeking to redeem : — Held,
under the circumstiinces stated, that whether
the original transaction lietwei.ri 1). and S. could
only l)e looked at as one between mortgagor and
that as to the lands not sohl, the Statute of mortgagee, or merely as one between vendor and
Limitations did not apply to ba*' tlie mortgagor vendee, the pbiintitf w.as not entitled to relief,
of the right to redeem. And as to the Yamls and the bill tiled by him was, therefore, dis-
iold, the court ordered the mortgagee to ace )unt I missed with costs; and Senible, that S. having
fur the purchase money thereof, with interest, been an innocent purchaser at a time when
Maahnald v. Macdotiell, 2 E. & A. 393. i registration was not notice, would have nflorded
2363
MORTGAGE.
11 good grouml of defence, if it had been taken
by the answer. Kaij v. Wilxun. 24 Chy. 21*2.
(b) Cundticl iij Port it'll.
The court refused leave to redeem, in 1852, on
a mortgage to several executors in 1827, payable
in 1832, of property of not greater value than
the amount secured, the mortgagees having, in
183.3, after the mortgagor's default, sold the
propertj' for less than was due on it, and the
mortgagor having thereupon given possession to
the purchaser, in pursuance of a letter from the
acting executor (since deceased) to the mortgagor,
informing him of the sale, and rcMjuestiug him to
give the vendee possession, " in which case the
executors relinipiish all claim against you for
the interest in arrear," &e. Clulc v. Maaiiday, 4
Chy. 140.
A mortgiigor conveyed his equity of redemp-
tion in certain lands, together with the absolute
estate in other propertj', .and took back a niort-
giige on the whole for part of the purchase
money. The jturchaser afterwards transferred to
a third party. The mortgagee, with a knowledge
of the transfer by the mortgagor, tiled a bill of
foreclosure against himah)ne, and having obtain-
ed a linal decree, conveyed to another party, who
afterwards died intestate. The person really
interested, considering that the foreclosure had
the etl'ect of Inndiug his interest, rented the
property from the grantee of the mortagee, and
also Contracted for tlie purchase of it from him ;
but, upon discovering his rights, he tiled a bill
against the heir-at-law to redeem. The denial
of notice was impei'fect, and it appeared that
what the purchaser paid for the property was
just what was due on tile mortgage, and less
than tlie fair value. At the hearing the c irt
directed an en(juiry as to wiiethcr the ancestor
had notice, actual or constructive, <it the time of
his purchase of the title of the defendant or his
vemlor. as to the suthciency of the consider.ation
paid, and as to the circumstances generally
attending the purchase : reserving further direc-
tions and costs. Jlmj'j v. Wrtlli^, Chy. 150.
In .Inly, 18.")!), F., being a member of the firm
of 1{. M. it t'o., mortgaged certain lands, the pro-
perty of the firm, to defendant C In . September,
18()0, by the "act and warrant" (under the Imp.
Act I!» & 20 Vict. c. 7!») of the sherifif deputy
of Ijanarkshire, in Scotland, all the real antl per-
sonal estiite of i;. M. & Co., in Canada as well
as in .Scotland, became vested Ln !{., under the
bankruptcy laws of that country, as trustee ; and
in August, 18()1, the eijuitj' of redempti(Ui ves-
ted in H. and B., as trustees. In .lunc, 18(il, C,
being ignorant of the proceedings in bankruptcy,
tiled his bill of forech)sure ag.ainst F., who took
the copy served on him to K.'a solicitor, but no
notice was taken of it, and in 18G2 a final order
of foreclosure was obtained and registered by
C, who in 1S.")3 conveyed to defemlant (I. In
18()4 K. and B. filed the present bill of redemp-
tion : — HeM, that the conduct of the plaintifls,
after service uimju F., and notice to R.'s solicitor,
disentitled them to redeem, liolmm v. Citrpiu-
ter, 11 Chy. 293.
L. and ,S. were jouit owners of certain lands,
and L. had created a nuirtgage on a part of his
undivided interest in favour of K. With a view
of effecting a partition, L. conveyed his interest
to his co-tenant S., who thereupon re-conv
to L. a certain defined portion ; and in oril
iirotect S. against the mortgage outstandii
.1. 's hands, Ij. executed back to .S. an inder
mortgage. I.. di<l not pay of!" R.'s niortj
and K. having obtained a final decree of
closure, sold his interest in the property
L., after the partition, had sold a portion o
estate to the pl.aintill's, who in respect of
interest had been made parties to the forecl
suit l)y 11. Sulisequently, in .an action of (
ment, .S., set up title under the in<lcnniity i
gage from L. : — Held, on ap])eal, aftirminj
decree below, (14 Chy. 2.")0,) that he ha<l tir
in the plaintiffs to redeem, who were entiti
do so upon paying what 8. had p.aid or
liable to pay to B., and all expenses reasoi
incurred, together with costs as of an ord
redemiition suit — beyond those S. was on
to pay the costs. Hmd v. Smith, Ki C!hy
14 Chy. 250.
On a bill to redeem, it appeared that i)laiii
ancestors had executed an absolute convej
under circumstances which entitled him 1
deem, but that he had afterwards aciiuicsc-
the grantee's claim of absolute ownershij)
had thenceforwanl, and for ten years bcfoi
death, accepted from such grantee leases
paid him rents, nuiking no claim of any i
interest in the property :— Held, th.at the gn
must be taken to have .abandoned his f(|
and that his heirs were not entitled to reil
Jiomh V. Lumlu, 19 Chy. 243.
See Shu- v. Clid/niiiui, 21 Chy. 5.34, p. 2.1i
(c) Scdi; hi/ Mortijwicv.
A security was effected by an absolute coil
ance, and a bond to re-convey, but the mort^
sold and convej'cd to otlier persons, wli
plaintiff' alleged, knew the true nature
title. The only notice was a mere casii
versation in the l)ar-room of a tavern,
years before the filing ot a bdl by the ni(
to redeem. The court refused redemptinu
costs. VUirh- V. Little, 5 Chy. 3()3.
irt
ia\
The e(piitable owner of unpatented lainl
I which he held a bond for a (lee<l, mortgagi
j interest therein, and put the mortgagee
session, whereon he and his partner car
; business for some time. Suljseijuently tlie
j gagee purchased the lands at sheriff's sale,
I an execution against the nun tgagor. I'puii
ing up the partnei'ship, the mortgagee w
del)ted to his partner iji a large sum, in
I of which he accepted a conveyance t'lu
; mortgagee of the nuirtgage estate, and a
fileil to redeem, charging him with notiee
' n.ature of the title. In the c<mi'se of his
' ination, he stated, " I had heard from. I. 1
. mortgagee) that there was such a boml.
; th(night in my own mind that the sherill ':
had killed a good deal of that :" — Helil, S]
I V. C, diss., that he was affected with ni
j the mortgagor's title, and therefore liable
redeemocL A itchinoii v. ( 'ooiidhi^ (i ( 'iiy. M
\ In 18.36, R. l)eing under obligations ti
I accoumuMlation indorser, and being uIk
I leave Canatla, c<mveyed land to S. by an al
[ deed. A bond was executed contemiKiraiic
: explaining the transaction and providing i
IJ^piMBiKM-g^
2364
who thereupon re-conveyc.l
Ja portion ; ami m ^.nler to
1, . inortuaue outstandmg ni
'^Ua'oS.animlemmty
not pay off H. '8 mortgage;
Unc/a'^final decree of fore.
nterest in the P'-"r?'-ty *'' ^;,
on, ha.l8oUlapoitionof the
HtfB who in respect of their
a;.artie« to the foreclosure
Muently, in an iiction ot cjlc t-
t e umler tiie in.kn.nity wort-
eW n appeal, alhrmmg t >.
V-h;.'2.->0, tl>atheha.lth«skt
o rJleen^ who were ent.e,u
iuK what S. hail pai-l "i ^ ■'*<
\n.l all expenses reasonahly
i'wthcostsasof an..nl,n,»v
Ihevon.l those S. was or.U: e.l
. l„d y.Snnth,U ('by- •'■-!;
.leem,itappeare.lthatplaiutiirs
.euteil an almolute convey.oKc
',, eel which entitlcl him to re
e ha.l afterwards ac.i"iesce,l in
lain of ahsolute ownership, ...1
SamHortcnyearsbdorehis
nn such grantee leases an,
, nvikinu' no claim of any ntlur
rr^y:-Hehl, that the grant,.
t have ahan.lone. his e,,mty,
eirsM^re not entitled to reileem.
f^/, 19 Chy. 243.
(V«-,<m..,-2lChy.534,p.'2:W-.'.
s) Sak by Morlimice.
vivs effected l.y an ahsolnte cmvty.
lul tore-convey, hntthe moit^agce
"vcd to other persons wh,mi ho
1 knew the true nature ot tk
,' ^ was a mere casual .„n.
L .ar-room of a tavern, l.ttoeu
^Le.,mt refused red^^
V. Little, 5 Ohy. -iW.
,1o owner of unpatented lan,ls f„r
ahondfora.teed,mortgago.n,„
r." SuhsSe"tlyt^-.>•f
«Jtehndsatsheriff•ssale,ul.,or
lgi;;tihemo.tgagor. I l-nM , •
^rtnership, the mortgagee w.u m
^'PliSiA'a large sum, in l-ayin.^^
title In the couiue ot 1"*^^;""
J«l 'M had heard from .1. IV J
Ll«eftMo«v.(Vo<»H<.(hy.<.«.
roi^S^UtsrPana).;
tiri^ecutedcn— --^^M
' te transaction and pro> uinife
23G5
MORTGAGE.
23G(5
conveyance on satisfaction to S. of .any damages ;
or loss hy his liability as iiidorser. A tenant
occupied the premises till 184."), treating 1{. as
landlord and paying the rent to S. as his agent.
In 184(i, S. solil the premises, the purchaser
liaving no notice of W.'a claim : — Held, on a hill
tiled hy the reiu'csentative of 1!. to redeem, that I
no relief coulil he granted as against the pur- !
.liascr, Imt that the ivinvscntative of ,S., he
liciiig ilead, was hound to uccouiit us mortgagee \
.rom the time tiiat lie wuiit intu possession.
Ituhirtsiitt v. Sciiliir, lOC'hv. T).")?. !
I
The owner of laml conveyed the same, taking '
;rom the grantee a hond or agreement for jiay- :
iiient of .I^.SO a year, ami the keep of a cow,
which was to form a lirst charge or lien on the
huul. No part of this ci)iisidcrati'>ii was ever
paid or pert'ornied. Ueforc the huinl or agree-
iiieiit was registered, the grantee mortgaged the
[ii'operty to a buililiiig S')ciety, whosuhse,)iiently
:i,)l(i for the amount of this claim to a party who
had notice of the effect ot the Ixind : — Held,
tliat the jiurchaser was lialilc to he redeemed on
liayment of what shouM hu found due in respect
,if the mortgage t,( his venihirs. Wmhlill v.
'V'"'/, -il Cliy. 384. I
!
.'). A';m- /.- i!r,(,,i,i. I
(a) Pntrlin.
In a cause in the nature of a redcinjition suit,
the hill stated the existence of tliive m,irtgages ;
;illcge,l (yie to he Usurious, ami tlie two others
t,i have heen for larger sums than had been
:»lvaiiccil : ])raycd special relief, aii,l that an
aecuiiit might he taken nf the sums actually
,i,lvaiiecd, and of the aiV'Huit due, aii,l for re-
ii'iuption. A iiiotiiiii for an immediate decree ^
iiiiiler tiic 77th or,ler of May, 1S,">0, was refused
with costs. Kill!/ V. Milh, -2 Chy. '2r)3.
It being doubtful when the nnu'tgagor died,
iiis widow and ehihlren joined in a suit to rcileein,
;n oi'der that all (jiiestioiis under the act abol-
ishiiigthe law of priiUDgeiiituie might he avoided.
At the hearing, the court allowed proof of intes-
tacy by attidavit, with a view to making the
ik'cree as asked. Cdiiitolili- v. (Im xl, (i Chy. 5 10.
The owner of an eijuity of redemption tilcl a
i,iU inipreaching the niortgagce's title, on the
^nmiid tliat no money was advanced ; hut the
omrt being of opinion that the evideneo was :
>iitKeieiit to establish the fact of payment, |
■liruuted, at the option of defendants, tliat the I
biUshduhl be dismisseil with costs, or the usual ,
'lecioe made for redemption upon payment of
what should be found ilue upon a rcfiavnce to
•he master. Biihim v. Smith, 10 Chy. 'JlfJ.
Although a bill does not pray redemption, hut i
I ilociee for redemption is i.ssucd upon it, it
Wiiulil seem that a subsciiuciit dismissal of tlic
I'lll operates as a foreclosure. CuniiKtillv. IhuriwI, j
12 Chy. ,3,38. I
A iiuntpgee is luit bound to produce his mort-
^age deeil for the inspection of the nnu'tgagor,
ivbeii there is no (juestiou of title in dispute, the
iiilllieing for redemption, and the riuht to redeem
lieing admitted by the answer. BhI v. Chamti<r-
vn, 3Chy. Cliamb. 429. — Tayhir, JtfjWti'.
Where a second mortKagee Hies a hill of re.
k-miition, and makes uetault in paying at the
time aiipointed, the mortgagor (a.i well as tho
first mortgagee) lias, under the general order
4,i(), tile option of liaving a day tlierenpon ap-
jiointed for redemption of the first mortgage liy
the mortgagor. MrKiiiiidii v. Ainlirinn, ISCliy.
t>84.
(b.) rirwtill;/.
Wlicre a niortgaj;e vested in tlie iiKirtgagee a
life estati! only, and he, after default, sold the
interest of the nmrtgagor under execution in
1S3(>, for more than tlie )iriiicipal, interest and
costs, and the puivliasfr .•U'ti'rwards scild, and his
vendee went intu jmssfssion, ami afterwanls con-
veyed to triistei's lit a si^ttlcnieiit his interest in
the iiroiicrty, but, with their a.^sunt, remained
in po.ssessioii, ami it aiijieared that the trustees
claiine,! the wliolu estate upnii the trusts of the
settlement : — Hehl, on a demurrer by one nf the
trustees to a bill tiled by the mortgagors against
the settlor and the mortgagee, together with the
trustees, praying redemption, a re-convcyaiicc
by all parties, and general relief, that though
the plaiiitill's were not ciititlcl to wliat they speci-
lically prayed, yet tiiey were entitle, 1, under the
general prayer, to a rccmvcyance of the life
estate of the mortgagee, ami an account of the
rents and prolits ; anil that the bill was not mul-
tifarious. Xil.1'111 V. Iliiln i-lsiiii, 1 Chy. ,")30.
A tliiril inortg.agee hid liis hill for rcilemption
.against the two jjiior iiicumlirancers and tho
mortgagor, but did not allege cither that his own
mortgage or that of the scroiid mortgagee was
past due. A demurrer on these grounds by the
second mortgagee was allowed, /'iir^inix v. T/ie
Jj'niik (if Mnii'iidl, 1.") Chy. 411.
Held, that a hill to redeem need not contain
an offtjr to redeem, because the form given in
the orilers contained no .such offer. I'lin'tmit v.
('(iiii/ilirll, 2 Chy. Chanib. 12. — -Mowat.
A person havinir a second clnirge on land, filed
i\ bill against the holder of a prior mortgage, and
the owners of the equity of reilemptioii, praying
i'eileiui)tion and general relief :— Meld, that the
absence of a specitic prayer as to the latter ile-
fendants did not disentitle the iilaintiti' to relief
against them. Jjnii;/ v. Jiiiiii/, 17 Chy. 2.")1.
See.Vi7(/'fu/i v. AnnitroiKj, 1 O. .S. 327, p. 2372.
(c.) J'lirlll:1.
Where one of .sever.d dcfemlants has become
bankrupt, his assignees are necessary parties,
and the court will not proceed to make a decree
in their absence. Ii<tnihurt \. J'(ilt<r.*ijii ft al.,
1 O. S. 321.— Chy.
The plaintiffs Hleil their bill to redeem, setting
forth in a schedule the names of certain parties
who had imrchascl jiortions of the mortgage
jiremises, ami charging them with notice of the
ilefect in the title, hut none of whom were mivile
I parties. One defendant put in a general demurrer
for want of parties, which upon argument before
the Vice-chancellor was overruletl, on the ground
that the prayer of the bill was in the alternative,
and to the relief prayed hy one alternative tho
plaintiff's were entitled without those parties
tieing present .-—Held, on appeal, that if for any
part of the relief prayed other parties ai-c neces-
2367
MORTGAGE.
231
'Ilk-
I*'
■m ■
Jiiijii,
' !, '
Bary to 1x3 brou^'lit Ixifore tlie court, a demurrer
to the whole bill will hold ; but, as the defen-
dant had, subseijuoiitly to the order overruling
the demurrer, put in Iuh answer : — Held, that
he was too late in apiHjaling from that order,
and the appeal from the order was dismissed
without costs. SiiiiiiKim v.Snii/l/i, 1 K. & A. !( ;
2 U. S. 12!). See, also, for judgment in privy
council, 3 Chy- 104 ; 7 Moore, P. C. C. UO").
Tlie owner of land sold and conveyed one acre
thereof. Before the registration of the deed he
mortgaged tlie whole estate, 200 acres, wiiieli
mortgage was duly registered, and the jiurchaser
of the acre then registered his deeil. The sus-
sigiiee of the inortgiigee proceeded upon default
to sell and duly conveyed the whole estate.
The purchaser of the acre Hied a bill to redeem
by virtue of his interest in the (me acre, and
alleging want of notice of the intention to pro-
ceed to sell under tlie power ;— Held, tliat to
obtain the relief prayed by the bill, the mort-
gagor was not a necessary party, although if the
bill had souglit for payment of the surplus, if
any, of the i)urchase money over and above the
annmnt due on the mortgage, it would be neces-
sary to liring him before tlie court. litinkU v.
Dar'uUon, !) C'liy. 173.
G., a creditor of F., under a judgment recov-
ered in 185(1, filed his bill to redeem W., tlie
alleged mortgagee, under a deed of conveyance
to him from 1"., absolute in form. A creditor of
W., under judgment recov red in 185!), and kept
alive by H. fa. laiiila, was made a jjarty in the
master's office, as an ineundirancer subse(]uent to
plaintiff' : — Held, that he ccmld not properly be
thus made a party ; but the plaintiff' was allow-
ed to amend his l>ill by making liini a party, in
order that an oiiiMirtunity might be afforded him
of ccmtesting the plaintiff's right to treat the
conveyance from F. to AV. as a mortgage as
against him. Olaxi v. Fmck-litoii, 10 ('hy. 470.
Tlie rule is that a bill can only be filed against
a mortgagee for tlie purpose of redeeming his
mortgage. Ifnijrrnv. Lcirix, 12 Chy. 257; 'V. C,
■noiii. liiKjirax. ir/'M<, 2t'hy. Chamb. 13. — Mowat.
But this rule does not necessarily exclude the
right of obtaining in the same suit agfiinst other
parties i-elief eonsecpient upon such redemption.
liui/cru V. Lvini.^, 12 Chy. 257.
AVlien a mortgagor bad assigned the mortgage
property, and taken collateral security from the
.issignee for payment of jiart of the mortgage
money, a bill by such assignee against the, mort-
gagee and tlie mortgagor was held not to be
improper. / /».
But where such a bill did not offer to pay what
W.18 due to the mortgagee, or pray redemption,
and prayed relief against the mortgagor only in
respect of the collateral security, a demurrer was
allowed. Il>.
Although the nile is that a prior mortf'agee can
be made a jiarty only to redeem him, still if such :
prior security has been created by a deed abso- |
lute in fonn, a subseiiuent mortgagee is at liberty \
to bring him liefore the coui-t uir the puriK)se of ,
shewing his interest to 1)e redeemable, without \
ofi'ering to redeem him. Moure v. Uofimn, 14 I
Chy. 703.
To a suit by a second incumbrancer to redeem
the prior iucumbraiicer, the owners of the e(piity |
j of redemption arc necesaary parties. Lumi
Luiiij, 1() Chy. 230.
I Qua-re, in such a case if the prior incui
I braiicer should afterwards put the judgmc
I creditor to Hie a bill to redeem, whether he wot
j be entitled to his costs, ('mirforil v. Mililfu
j 1!> Chy; l'J5.
.See also XI. 3, p. 2373, aud XII. 2, p. 23!
(d) CusU.
A mortgagee who takes a deed absolute in for
and then fraudulently denies tlie right of rcden
tion, will be m.ade to pay tlie costs of tliu su
Ar- 7V(/-./(; V. Ih'liinH, 3 Chy. 595.
Where a jJaintiff moves for a summary ref
eiice, and seeks to deprive the mortgagee of 1
costs, a case should be made for that relief up
the pleadings, and the (piestion <pf costs .slmi
be included in the reference to the mast
Liwij V. all nil, 5 Chy. 208.
Where, after a mortgage debt hail been ;
duceil to about £1 148., the mortg.agee, wlm li
takei. an absolute deed, distrained for I'
claiming that to be due ; the court, upon a 1
to redeem, refused the mortgagee his costs, i
In answer to a bill for the redemption oi
mortgage alleging usury in the original trans:
tion, the mortgagee set up several dctciio
which were decided against him. The court,
decreeing redem|)tion, ordered the plaiutitf
pay the costs as of a common redemptiim su
and defendant the costs of tiie issues fmi
against him. Ishcnnind v. JJi.cuii, 5 Chy. .'{H
Although the general rule is, that if a balaii
is found due to defendant he will receive
costs, still, under the special facts in this m.
the court, upon a bill by the mortgagor a;,'aii
the executors of the mortgagee, impoaclii
the whole transaction for fraud, orderccl his
tate to pay all the crisis of the litigation. Si,
V. Biirnhuiii, 10 Chy. 375.
Where a mortgagor subsecjuently exeeuteil
iease for part of tlie mortgaged property,
one of the two owners of the lease moitg;!
his interest therein, such mortgagee was
a party in the master's otHce to a suit 'ly
original mortgagees for the forech)sure of tl
mortgivge : — Held, on further directitms, that
case the mortgagor redeemed the plaintii
mortgage, he was not entitle<l to claim aL'aii
his co-defendants, or any of them, the c
occasioned by the mortgage of the leaselu
Mi-MaMii-\. Duiiimrii, 12 Chy. 11)3.
The plaintiff alleged several grounds tor
which he failed to establish, .althougii he
ceeded in shewing a right to redeem, which rij
defendant lia<l contested. The court refused i
to either party up to the hearing, and gave
fendaiit the substpient costs of a redemption
where the right to redeem is admitted. Bi»
V. O'rarlfi/, Ki Chy. 523.
Where defendant submitted by answer ti
redeemed on payment of costs, an<l inailu .st.i
meiits which, if true, would have entitleil '
to costs : — Held, that the plaintiff was justit
in going to a hearing to prove facts wliieb
titled him to costs against defendant, liniu
Martin, 16 Chy. 5(iG.
SB^
:.lU...i:\iSU^i.^ .'-.
23C8
iessary parties. Lon.j v.
case if the prior mcuiu-
^anl9 put the jmlgmen
r (''•.'.'/«"•'« V- '"'■''''■"'"•
1 vn " V. 2300.
2373, anil All. -> !'• -''
2360
MORTGAGE.
2.370
A suit for redemption having l)cen conipro- i bill against the mortgagee's i epresentatives,
niiseil by payment into court of a sum of money j Heeking relief on these grouml.f, was orilered to
for the benefit of tliose entitled to the eijuity of ! receive his conts of that »uit, although tlie bill
redemption, a decree was made in a suit aulwc- ! was not tiled until after iirocei'dings had bei'ii
iiuently brought by an execution creditor of tite taken in the suit to forechMe. U'drthliiijluii v.
mortgagor, directing an inijuirv as to other in- EUii)tt, EUlotl v. Wuiiliinijlini, 8 ''hy. 1234.
cumbrancers and myn.ent to them acconling t<. , .^ ^^^^^ ,,„j,ji„ „,^,.t i„ tn.nt for sale t-
},r.or.ty : and the defendan s lu;v"'« "'«-!- •'••; i,,ae,nnify him ag^viust iL on account of tiu
nnproper defence were -Held. ei,utled to receive ,„,„.t j^ j, „„tt.„titlcd to foreclose in case ol
xkes a deed absolute in foru.
,:Wc. the right of rcdeiuv
, pay the coats of the i<uit
7, 3 C-'hy. 59''-
,„ove8 for a summary rcf..-
' n-ive the m-u-tgagcc nt lu-
be made for that vcbctui..;
ie u--tion ..f ^-f^ «1'";'>-
e reference to the nuvstcv
•by. 208.
mortgage debt W bee;; -,
Us., the mortgagee, ^U oh
. deed, distrained foi U* ■
e due Abe court, upon a Ml
I the mortgagee bis co.ts. /
t bill for the redemption ot a
. ;., the or glial trausa.
usury 111 "•" ""o , 1 ,' .. ,
, . set uv several detcua>.
igee set "1 ,j,j ,rt ,„
..il aoaiust lum. ^"\ . ,:
.«t o . onlered the pbunt.ll t.
fa common 1-aemptiou.u.t
costs of the issues t «->..
tbricivl ^'^ts in this.....
'^f the mortgagee, in.P^;!""^
Jtio for fraud, ordere.t b . .^
lie costs of the Utigatum. .S'"' •
(•by. 37r>.
,t.agor subsciuently ^^'"l;}
,f the mortgaged vropcitN, -m.
r,w ers of the lease mortgage.
L;r'^ichm..tg.gee..as^-;;
■gagor re Item ^^^^^^ ^^^^^
Ts not eiitmeo ^^^,_
Its, or any of tbcm, t^ ^^^^^
the mortgage of tl e
Lm.r</, 12Cby. llt.1.
1 ,1 1 anvcral trrouiids fur nlH
tet^illiT although l;e-
■l 10 tsi vpdeem, wbicli rigM
Inga ngUt t^ ^^^^^^^^ tVefuse-lco.t.
■(Uitested. ll^'V" " „,,,i ,,.ive ik-
iTr^Slsldmitted. «"««•'''
hiy. 5-23. ^ ,
Lntsubmitt..n>yai>svv;j;;i:.
Lmentofcosts^^-ulju^^^^^^^^
fea£s&J^:t U ^
I' 5()0.
defaiilt, but only to
inUr.*, 8 Chy. 2,->2.
a ilccrce to sell. J'ltlnii v.
their costs (uit of the fund. Unhoiitva v. liia-
vnnh, 1(5 Chy (»7f). 1
A first mortgagee is entitled as against the ^yjjj,^^. ^^^^ ^,^„^^.„ i,„,,,^ thcciuitv of rclemi,
ownei- of the eipiity of re.leiiiptio.. to add to h.s ^j^^^ ,^,j abs.dute onler of f,.ivclnsurc can be ...o
debt the necessary o.sts of a suit to redeem „„„„^^.e,i, but o„ly that in default of uaynicut tiu
brought by .a second mortgagee, and dismis.sed ,„„,tg,^gee be at liberty to cuter into ,;,ss..ssiou.
with cos.ta for default of the olaintitl therein, y^,,,,,^ ^._ -fh,' ^illonir,, (!,,„ ,;,l, 10 Chy. 4S'.'.
But where a first mortgagee had taken a decree ' •'
for tlisinissal on the iilaiiitilFs default, instead of It is no defence to a bill of foreclosure that the
jjiving to tile owner of the eciuity of redemption mortgage was given for the iiurchase money ot
a day to redeem under the general order 4()(!, the mortgaged iimiierty, ami that to jiart of it
ami a second suit becaiii
(jueiice, he was refused
occasioned.
()3(i.
M<K
iiiiiun v
necessary in eonse-
the extra costs thus
liiili'i-non, 17 Chy.
the vendor (now the mortgagee) hail no title.
Cnrbinmr \. liiilloih; I'J Chy. 138.
After the pa.ssing of the 27 Vict. c. 17, a
municipal coi'iioration investeil. on mortgage.
Mortgagees having insisteil on their right to part of the surphis clergy re.se.-ve n.imeys in
CO isolidate two mortgages as against a imrchaaer their hands, and the iiiortg i>,'ors m-i.U .l-fault in
of .lie equity of redemiition in one of the pro- payment, whereupon the miiuici|iality tiled a bill
(icrties, which claim was decided against tliem, to foreclose the securities : -Held, that the
were ordered to pay the costs up to the hearing, municipality were entitled to a decree of fore-
that being the only point raised thereat. : elo.sure, and were not restricted to a sab' of the
boiiihiion Siiriiiii-'i iiikI liii-rstmciU Sucii-ti/ of property only, notwithstandiii',' the statutes of
Lonihn v. Kiftrii/'ie, 23 Chy. ()3l. mortmain. Thr Miiiiir!/„i/;/,/ of <hr)>r>f v. Hoilr,,.
12 Chy. 27().
C, the holder of two mortgages created by
H., between whom and the niece of C. a marriage
I was about to take place, became i)arty to tiu-
marriage settlement, which embraced, amongst
XI. FoKKlUl.srRK.
IIVk-h /Jicrcid anil at irhiMc Suit.
It seems that the plaiutifT will not be entitled j other property, the lands moitgaucd, and subse-
tothe absolute onler of f(u-eclosure against a sub- <l"ently instituted a suit to retorui tiie settlement
somieut mortgagee and the mortgagor, unless he »" f *" •"■''■ve his mortgage unatk^'tc.l tliereby.
al estate in
oiiijiiiin.
.■i)ueiit mort^' _
lie iu a situation to re-convey the 1^,^,..
the mortgaged premises. Rum v. Tli
Chy. G24.
A mortgagee who holds several mortgages in
fee nn the same land, one of which is not due,
oaimot foreclose that mortgage with the others.
WkhIu v. ('iilldi; 1 Chy. 147.
and also to reform a niortg;ige made by H. with
the assent of C, after tiie marriage, to one .I.M..
for the benetit of creditors, or to postpom^ it to
his own, and prayed a foreclosure or sale, but
did not offer to redeem. After the iiearing of
the cause the plaintitf paiil oil' this mortgage and
other claims upon the estate, and thereupon
tiled a petitifui setting foith tlieae facts, and
leclaration that he
Upon default in payment by a mortgagor of praymg a .leclaration tUat he was entitled to
any instalment of, or of interest uprui, nmrtgage '•*^'^"^'«': * '« anu.unts so paul by h.m. and tlie
money, the mortgagor has a right to a .lecree ''i'""""* l^"" "1"'"' ^ i" """'H^"'- '"."^ "'
ilirectiug payment or to foreclose on .lefanlt the ; '^'^^•'^".1* "^ l^Vi'T,"*:^ force osurc of the mortgage
Khole amount secured by the mortgage. Ca,,,.- premises :-Held, that all he was entitled to
im, V. McJta.; Sparks v. J{edl,^a,l, 3 (Jhy. [ was a forech.surc against H. with the costs ot
nil ' > J j an ordinary foreclosure suit, tlie ))laintiti paving
' ' I the costs occasioned by tiie otlitir jiarta of his
A mortgagee with power of sale, covenanted bill in which he was nnsuceessful, as also the costs
that no sale or notice of sale should be niivde or of the defendants appearing on the jictition.
[given, or any means taken to obtain possesaioii the court being of opinion that he should, in the
I of the mortgaged premises without three months' : first instance, have drawn up a decree for
jnotice to the mortgagor, demanding payment: — 'redemption, ami acted on it. Qua't-e, whether
[Held, that such notice was unnecessary before the plaintiff coubl, if objected to, even cnforct'
I tihng a bill to foreclose. La nth w MvC'onnacl; I his mortgage against H., or whether the plain
6 Chy. 240.
tiff was not in the position of a luortgigee who
i„ I ill i. i -il. 4.1 had represented to the wife before inirriaL'e that
A mortgage wf»8 created by a trustee with the ! i i 1 4 u ■.■ m i i
,_„„. fi * iii •' t 1.1 rt „! he hehi no incumbrauce on the settled i.roiierty.
Inewof iMjiiigsoM to raise money for the creditors "i „ ,r . . m r<\ oou
L( ti c ^\ _x 1 1 1 i. 1 [Cornwall V, Hfiirwa, 12 thy. .1.18.
lof the owner of the property, who had created "- "" • ■>
Ithe tnist. The niortgaKee had failed to sell it, A mortgagee, has a right to file a bill of fore-
Itail a auit was instituted by his representatives I closure the day after default ; and though such a
lifter his death, to foreclose the mortgage. The course may ho extremely sharp, he cannot Ix.-
Icottrt ordered the mortgage to l)e delivered up to refused his costs. Jieniii'tt v. Foreman, 15 Chy.
pcaueelled; and the trustee having also filed a 1 117.
149
2371
MORTGAOK.
A imrdmsLT of real estate mortgaged to the
venilor sfi:\iriiig a lutlanuu of imrohase money,
on the uutlei'Htauiliiig that the vendor waa to
remove an ini'iunbraiRu existing at the time of
tlie sale. This mortgage was assigned, ami the
assignee tliereof, though unaware of the terms
upon which it was executed, had notice of tlie
outstanding incumbrance; and it waa not pre-
tended that he .sujiiioseil that tlie purchaser liad
bought .sulijcit tliirclo. Upon a bill by the
assignee fur the fcjreclosure of the nuirtgage;--
llelii, that the most he was entitled to was, that
having reiluccd the prior incundiraiice to a sum
U'lt exceeding tliat secured by the mortgage held
iiy him, tlie purchaser Mas bound to pay that
amount into court to be applied in clearing the
title, or in default, his interest should lie fore-
i.'losed, unless it was siiewn that the existeneo of
this mortgage prevented the purchaser from
raising money uiion the security of the lan<l, in
which case the ]ilaintitV was bound to remove
that incumbrance out of the way of the ])ur-
cliasor, who was declared entitled to three
months after its being cleared oil" to procure the
money ; but that this protection was jjroperly
obtainable bv an a])plicatioii in chandlers. The
Cliiirrh Siirirlii v. Mr(Jii,,ii, 1,5 Cliy. 281.
A. lent H. .*!l2000 and took two mortgages from
the borrower, each f<ir .^iKKX), on separate pro-
perty, 'rile mortgagee foreclosed one of the
mortgages, and then parted with the property :
—Held, no liar to a foreclosure of the other mort-
gage. Jidlil v. T/iiiniiinnii, U) t'liy. 177.
I'lider the Insolvent Act of 18()!), the jurisdic-
tion of this court to decree foreclosure upon a
mortgage is not taken aw.ay, and a mortgagee
must still proceed in this court to obtain sueli
relief against the official assignee of the mortga-
gor, there being no proper machinery in the In-
solvent (,'ourt under which foreclosure can be
obtained, or for serving parties out of the juris-
diction, or for calling in parties to establish their
claims upon the mortgage premises. lli'iuUmon
v. Ken; 22 Chy. 'Jl.
The rights of mortgagor and mortgagee are
reciprocal, in so far as the right to redeem being
shewn the right to foreclose is thereby estab-
lished, although the identical conditions attached
to the one right may not be attached to the other.
Pttrkvr V. Tl„ Viiuijroirrrs' A.'<.i., 23 Chy. 179.
By the terms of the proviso for redemp-
tion in a mortgage, the principal money waa to
remain unpaiil so long as the interest reserved
was jtaiil at the days and times specitied therefor ;
Imt in default of payment of the interest for a
period of six months, then the whole of the prin-
cipal money should become due and payable : —
Held, that a bill to foreclose would not lie for
any default in jiayment of interest for a shorter
time than six months, although as it fell due
the interest could be e(dlectea. And, Quicre,
whether in such a ease the mortgagor would have
the right to pay the principal money against the
will of the mortgagee, by giving six months'
notice, or paying six months' interest in advance ;
or whether he could take a<lvantagc of his own
default in non-payment ot interest for six months,
and claim that as the condition on which he was
at liberty to redeem. But, semble, he is bound
to wait until the mortgagee insists on the default
:v8 giving him a right to foreclose, ))efore the right
tu redeem arises in favour of the mortgagor. lb.
2. Bill.
(a). Fvnn of.
Where a party who had given a mortga;
j secure a debt for which he made himself lial
: surety, and had received from his princii
mortgage on his own estate for tlie same <
&c., afterwards tiled a bill to foreclose the I
] and redeem tlie first mortgage, and tiie priii
at the hearing objected to the bill on the gn
that it was multifarious : Held, that the o
tioii, if tenable, should have been taken b;
luurrer, and was too late at the hearing ;"
' (^uieVe, if such objection would havebeeii siis
[ able under the circumstances of the ease. .Vc/
V. Arnt.tlroiiij, 1 (). S. 327. —Chy.
A demurrer will not lie to a bill (if forech
on the ground that the bill does not shew
I the plaintiir had actually paid a money imh
'. eration for tiie mortgage, or because it don
olfer to do e(iuity. Kiiii/sinUI v. (Utrdm r,
S. 32.").— Chy.
A bill for foreclosure nee<l not state the
perty or the parties to be within the jurisdii
of the cimrt. If necessary that will be presii
in favour of the bill till the contrary a\>\n
Duncan v. O'lury, 10 Chy. .34.
A bill to foreclose tiled by the exeeutiu'so
mortgagee did not allege that iirobate hacl is
to them :-- Held, defective on demurrer. J
irncr v. llntiiithnvf, II Chy. 201).
Where a testator devised his real and pern
estate to A., subject to a charge of ^'KY.) in fii
I of B. ; and A. after the testator's deatli, n
! gaged the real estate to B. to secure a tur
j sum, a bill by B. for payment of the tw(j s(
praying in default a foreclosure or sale, was
not tolH! multifarious. Killy v. An/ell, 1! (
iili).
An allegation that the ilefendant had
appointed executor by the will, was held iii|
cieiit in the absence of any allegation tli;it \u
! proved the will, or li.id acted jva executor.
I The endorsement on an office-copy liill i
j specify distinctly which relief the plaintilV sJ
whether sale or forechisure. Dnirrij v. (/'.
j 2 Chy. Chamb. 204. — Taylor, Sccnftirii.
I (b) Amniihnrn/.
In a suit instituted by an administraturl
I the will annexed upon a mortgage, the dufiil
j producetl a release for the mortgage money. I
by the testator in his lifetime whereiiiiiiil
I idaintiflf sought to be allowed to jiroeeed aJ
I the defendant as a creditor of the estate, iJ
' this would involve such an amendment as \|
' create an entirely different record; tlu'
refused such nemiission, and dismissed till
[ with costs, lianrtt v. C'rontliivuile, !> Chy J
j After <lecree pronounced in a suit
I closure, the plaintiflF discovered that imrtiil
j tlie mortgage<l premises had been sold bj
mortgagor l^fore bill tiled : — Held, in accdtf
with decisions by Esten, V. C. , per Blake, CJ
the purchasers of such portions might be lirl
before the court by amendment, and thf
proper motle of prooeedin|( was by pel
although but for those decisions he wouhlf
'fi
1
mLl'':
■ f r-v. .
I-
4
mBiMmaamkm,.^m
2S72 I 23"3
I. BiU. I
fui-m of. H
eel from l.i« l'»>"-'n;'« ^ ■
• Heia, that the ol.|.r. ■
''n u.vvJ 1 en taken l.y a,. ■
'"^'ate at the hearing ;an,l, ■
eti. woniaUavebeen^ustam. ■
Su>ee«of tl.eca«e. S,-I..u. M
, s. :v27.— ^i»y- ■
. ,• . I,, n bill tvf foreclosure ■
t"t n ao- ....t «hew tl.t ■
. Uv ..'vi.l a money e.mHi.l- ■
.ctnally 1''" ^ ^ ^^, it .l..ts not ■
Ai";/"""" H
, ,w....l not state the vro' B
u ccssary tliat ^^•nl he i-re.unK.l ■
'l -11 tnf the contrary ai-iusus. ■
. 10 C'hy. 34. ■
1 ... tiled hv the exeentors of the ■
. r. .leviscl his real and l-erscmal ■
f ft. a c ari-e of *-iW> '" '''^ ""'• |
ibjecttoa'^^^^'fe , ^^^.^^,,^ ,„„rt. ■
ifivnous. h^iiiU^- m
^1 „f the (\efen.\ant ha.l huen I
,„ that the at ^^^ ^ .^_^^^^. I
-•"*"''^'L ^^llSationthat•ac.u|
Lea upon a m<^^^^^^^^^^
lleaaoforthemonfe h ,,, tkj
■t as a «'^'^V"*"^ '"...ulnient as *(wU|
Itirely. .UfTerent recj.r , ^^^ , J
lU Vremises had ^e » ^^^^^,, J
Iforu biU hied --"^^/pi^^Ue. C.M
Is by Esten, ^ vV- J „,ight \« l-ru-ig^
MORTGAGE,
2374
thmiglit a motion for that pitriMme the i)ri>per
proceeding. Jliiiiihtc v. Moon, I t!hy. t'hainh.
.-)!».
After decree and re])ort in a foreclosure suit,
the court refu.sed to ivmenil a mistake in tile
description of tiie property in the bill. Loirra-
son V. JiiKkinj, 15 t'hy. 585.
On an application ex i)arte for leave to amend
after the decree hy eorrectini; tlie description of
the mortgaged premises : — Hclil, tliat tiic ai)pli-
1 ation coulcl not he granted t;x parte. Hank of
Montrcitl. V. J'oinr, '2 I'hy. Cliamh. 47. —Taylor,
Sicnliti'!/.
(d) Diiiiiis.t'iiiij,
When a hill is tiled to foreclose a mortgage
iiayahle hy instalments, aiitl defendant moves to
(limniss on payment of the instalments and in-
terest then due, tlie interest on mortgage money
is only to lie computed up to the day named for
imynient in the mortgage, and not to the time of
making the application, ''itrachdn v. Munifi/,
iM'liy. 378.
A hill of foreclosure on a mortgage hy the
cimrchwardeiis of a cliureh at Bramiiton, claimed
alien for advanc -s made hy the mortgagee suh-
siM|uent to tiie execution of tlie mortgage. One
.if tlie defendants, who had cea.seil to he a ehurcli-
wardeii, put in an answer disputing this claim,
the other det'endanta aHowed the hill to go pro
coufesso. At the hearing the plaiiititVs ahan-
flmiuil tiieir claim for the suhscijueiit advances.
The court dismissed the hill witliout costs, as
far as it I'elated to this claim. < 'rouk-s v. Ilinihr.t,
13 Cliy. 485.
.3. Parliix.
See also X. 5 (c), p. 2.SG(), and XII. 2, p. 2.300.
(a) AmIijiii'ih.
T., one of the defendants, tlie fvssignee of the
mortgagee, hy his answer, stated that he was
not intereste<l in the mortgage, or at all events
"Illy hy way of security, and that it helonged
t.'A. ; and that he and A. had concurred in an
issigniiieiit of it to B. : — Held, that A. and B.
Wire necessary parties ; and that, notwitlistaiid-
iuj; the defendant consented to withdraw his
asner, a decree could not he made in tlieir
absuiice. Viiiikleck v. Ti/rnll, 8 Chy. 321.
(h) Banknijil Mort<ia<ior,
To a suit of foreclosure against the assignees
ofabaukruic mortgagor, the bankrupt is not a
I necessary party. Tormnrc v. WintirhoHuni, 2
ehy. 487.
mortgagor, such creditors are not ii >. ary
parties. Fiuisi r v. Snlln rlmiil, 2 Chy. U.'
The judgment creditors of the mortgagee are
necessary parties. Stiiiiln\ioii v. /hc, 7 Chy.
.383.
The plaintill' was execution creditor of one 8.,
who liecamc a murtgagee of the premises in (pies-
tion. To a suit instituted hy a prior mortgagee
the plaintiir was imt made a' party : Held, that
the plaintitV's piwitinn was that of a derivative
mortgagee in invitmii, and ,is sucii lie oiiglit to
have lieeii made a party. Jtarliii'/ v. II'iVihh, 1(J
Chy. 2.").
(d) ^[ortlJlU|l'l!S.
A mortgagee who has been in possession, and
who has assigned liis interest to liis co-mortgagee,
is not a necessary party in a suit of foreclosure.
Jtiinsi'll V. Itiilii rtsoii. 5"L. .1. llS.—Ciiy. Ciiainh.
—Blake.
To a hill tiled liy the assignee of the niortg.ageo,
tlie mortgagee is not a necessary party, even wlien
the mortgagor alleges tiiat tlie mortgagee has
been paiil in full. d'oodirlKtm v. DiOninsi, 2
Chy. 135.
Where a mortgagor suhse.inently leased part
of the mortgageil property, and one of the two
owners of the lease mortgaged his interest there-
in, such mortgagee was made a party in the
master's olHce to a suit hy the original mortga-
gees to foreclose their mortgage. MrMiiHtvr v.
Dfmiiicnj, 12 Chy. I!t3.
P., a debtitr of the jdaintitf, ilejiosited with
him certain mortgages as security. Tiie plaintiti'
tiled a hill against the owners of tlie eipiity of
redemption of one of tiie mortgages for payment
or forechisnre. Tlie clefeiidants, at tlie lieariv
objected tliat P. was'a necessary party, but the
court overruled the objection, as it had not been
taken by answer, and P. niigiit lie ordereil to be
made a party in the master's othce. Jimea v.
Till' Blink of rjiiiif ('oikiiIk, 12 Chy. 42!».
(e) J'riiit-i/Hil nnd Siinti/.
Where there is only one principal and one
surety, hotli must be made parties to a bill for
foreclosure or sale. Si'ulUr v. iShrpiKinl, 12 Chy.
45(>.
Where a inortg';^;" •" "'" u by a surety on his
own pro})erty, the principal is a necessary party
to a suit for a forech>sure of the mortgage. Jl>.
(f). Ifiiil (inti Pi rxoiuil ]ii'jivi'i*i'ntntUv.i.
The representatives of a dece;vsed tenant for
life of an eipiity of redemption, are not necessary
parties to a bill to foreclose. The representatives
of the survivor of several joint mortgagees can-
not, mei-ely as such, sustain suit to foreclose,
k mortgagor of lands in this province, who
[jfterwanls becomes a bankniiit in England, is
jmt a necessary narty to a bill to foreclose by without making the representatives of the other
1 fee of the English statutes relating to bank- mortgagees parties, tor^jth v. Drake, 1 Chy.
iniptcy. Uimlhua v. WhUmore, 7 L. J. 124. — 223.
' '■ The heirs of a deceased mortgagee of an e(juity
of re<lemption arc not necessary parties to asuit of
(c) Creditor*. foreclosure by the prior mortgagee — the proper
party lieing the personal representative of such
mortgagee. Oriiimhaire v. Park.'i, 6 L. J. 142.
-Chy.
To a bill brought by mortgagees, being trus-
lte«8 for the benefit of certain creditors of the
2375
MORTGAGE.
Three imrtnorH took a convoynnco of real
cBtatu, " iw mill for iiiirtiifrsliii) iirouerty, for thu
iniriHiBcH of thu ](artiierHliiii,' uml oiiu having
left the provineo, iinil anotlier died, a niortunueu
<»f the jiropcrty Hied ii hill to foreeloao : — Held,
that tlie perHoiml repretientativo of the deeuaiied
partner waH a iieueHsary party, and that the
idaintifT uiiiHt prove tiie almcncu from thu juris-
dietion of the non-reHident partner, and perhapH
the phiintitl'M inal)ility to servo him with pro-
CUBH. liiixhr v. Tiinilitll, 2 t'hy. 521.
Where a mortgage ia taken in the name of one
partner to .sfciire a partnerHliip delit, and a bill
in tiled to enforce tlie security, the representa-
tives, real or jiersoiial, of a deceased partner, are
not necessary parties. Stiji/ifiin v. <!>iiii2><ioii, 1'2
Chy. 493.
On a liill tiled by A. & R., as executors of the
mortgagee, to foreclose: — Held, that the heirs of
the decea.scd mortgagee, or tlie persons l)enelici-
ally interested uiiiler his will, were not necessary
parties. Lawnncc v. Jliiinjihriin, 11 Chy. '2(KK
A testator devised his real and personal estate
to A., subject to a charge of !?200 in favour of
K ; and A., after the testator's death, mort-
gaged the real estate to H, tt> secure a further
num. To a bill by H. for payment of the two
sums, praying in default, a foreclosure or sale,
the personal representative of thu testator was
held to be a necessary party. Kelly v. Anhll,
11 Chy. 57!).
Where a bill by a mortgagee against the in-
fant heir of the mortgagor prays a foreclosure,
and the court, for the protection of the infant,
directs an iiKjuiry whether a foreclosure or a
sale is more for the benetit of the infant, it is
not necessary *{\ direct the master to make the
executor of the mortgagor a party in his otHce,
in cose of thu mastur s opinion being in favour
of a sale. Triixt and Luan Co. v. McDunntll,
12 Chy. 19(i.
Where a mortgagee proceeds to foreclose
against the mortgagor, and the estate of a de-
ceased mesne incumbrancer, the real representa-
tives of such iiieumbraiicer are not iieces.sary
parties. Taijlor v. .SVcik/, 1 Chy. Chamb. 74.—
Blake.
(g) Tnixties and Cfstiiix que TruM.
A mortgagor having devised his equity of re-
demption to trustees for his children in fee on
their attaining twenty-one :— Held, that to a bill
to foreclose against thu cestuis que trust after
they attain twenty-one, the trustees were not
necessary parties. Foritijlli v. Drab-, 1 Chy.
223.
Until a deed, alleged to be fraudulent, is de-
clared void, it must be deemed valid. There-
fore, where at the hearing of a foreclosure suit it
appeared that after the execution of the mort-
gage a volnntary deed had been executed by the
mortgagee, purporting to vest all his property in
trustees : that he afleged and had gone into
evidence to shew this deed void, as obtained
from him fraudulently : that some of the cestuis
que ti "st had released their interest under the
deed, and that the others had not any part in
obtaining, and had not executed it : — Held, that
such other cestuis que trust must, notwith-
standing, 1)0 made parties to the suit ; and li
was given to the plaintitt' to amend for that
jMwe. llfKjirn V. /{iMjrm, 2 Chy. 137.
(h) ll'i/V.
To a suit for the forecloHure of a mortgage
which the wife of the mortgagor has jiiiiit
bor her ilower, the wife is not a necessary \n\
and if ma<le a defendant tlie bill as against
will be dismissed with costs. .\[iiffiilt v. Tin
mm, 3 Chy. 111. Hut see Sitiiilirnou v. Ck,
1 Chy. ;i4i».
A married woman is not in resnect of dow
necessary party to a bill for the forei'losure
mortgage in which she has joined to bar do
On an application, however, for a married wo
so made a party to answer separately, an o
will Ite granted, but the plaintitl' will take
the risk of having the costs of making her a p
afterwards disallowed. Jhiviil.-nni v. //ih/i
P. K. 27.- Chy. Chamb. -Holmested, /,'./,',
(i) Other Piirtie.'<.
Where, after a mortgage being given,
eipiity of redemption is severed, so that ditl't
persons are entitled to redeem in respcc't of
fereiit parcels, these dill'erent persons mils
made parties. Jiiirklei/ v. Wilnoii, 8 L'hy. ."iti
A final oriler of foreclosure was refused w
a person entitled to a part of the equity oi
demption in a mortgage estate was mad
party in the master's otKce ; he should lie n
a defendant by the bill. t\ lian v. I.iicii.i, I C
Chamb. 58. — Ksteii.
The master at Whitby made the usual oi
making certain judgment creditors parties
the 2()th of April, IStJl ; but they were
served till the 3rd of .lune. They did not i\\>
iKjfore the master, and, after he had maiU
reimrt, they aiqilied by motion to be idlowc
come in and prove their claims : -Held,
they were p.irties to the suit from the day
the master made his order; that the applie;
by motion was regular, and need not be by
tion; and that they might come in ami [i
their claims on terms. S/crlinij v. tViw/i'J
Chy. Chamb. 147.— '^pragge.
In a foreclosure suit, the mortgagor being (
one of the heirsat-law, who was originally
fendant, appeared from the atlidavit
obtiiin service by publication, to be dead, aiil
bill was thereupon amended by striking liiiil
The foreclosure w.is completed as agaiiis
other defenilants, and after decree (mi soul
jection to the title, by an intemled imrclF
arising) a petition by the plaintitf for an ,
foreclosing such party, and another ]iai|
whom on>* of the female <lefeiidants limll
married, and parted from, some fifteen
previously, and who had not since been
of, was refused. Street v. Doluii, 3 Chy. C'l
227.— Taylor, Referee.
To a bill uiKin a mortgage for relief by ?
foreclosure a tenant of the mortgagor if* a {j
party, in order that he may redeem if he >
to do so, or in case of default of paynid
ordered to deliver up possession. C'(h«'/J
inanent Loan and Sacinijn Societi/ v. Muctli
22 Chy. 461.
2376
♦i..« to the »uit ; an<\ Kav..
;iffto.vmc."afortlmtimr.
2:i77
MOHTOAGE.
2378
i) "'':'•■
. „f 11 nu.rtguK
S'r*i""''" '■■■"
,,ect of .lowt'i'ii
; uu fur the f.'>--'J''^"'y ; '
I ..vs i.'iuf.l tohar 'h'N^"
rte'rf..v'v"mvnc.\NVn-n.n
;;;;i,JHowtca./^^.-.
"I !'r iu . f the equity ..■ v.
"'"".**5T... he sh.mhl he ...vU
^^l^ih .r/,rv. / ^.^^•^'^'
' ^";^*^T%\ • «t they ^ve^. n-t
;h-.l..f.l«ue ll'ty ^^^...U.b-
ister, au.l, aff r '^ ;^ ^,,^^.^,^ t,
I ,„vc tlair ^^^^ ,, . t ,,t
|,u terms. >'""".'
Le suit, the n.^^5j3t;
^'"•'^'^ v"\iou t X>\ea.l,uu>Ulu
miiouaiueuacl >> .^.^^iust tk
|.,t«, ami after >-J"^
(j) I'niflli'f III luhlliiij I'lirtiiH.
Wlieru, (iiiiUt an onler in ehaniheni after tie-
ereo, perHoiiH interesteil in the eiiuity of ru<lunn>-
tion of niortga^eil iiretniMt-H have heeii oihluil om
IKirtieH to a Hiiit in the nuiHterV ottiee, an appli-
cation to Het iMiile hiioIi an onlcr nniHt he made
to the eonrt ujxin petition. 'J'irr v. Mi/ffn, H \,.
.]. N. S. Uhl. - Chy. C:imn»h. Taylor, Sirnturi/.
After tho final onler hail hucn ohtainuil it wiu)
ihscovered that (irior to the tiling of the hill the
mortgagor hail hoIiI a imrtion of the equity of
ri'ileniption. An applieation for a fiat on a jieti-
tion, i>rayinL' that tlie iiurehaser might he nmilo
:» party in the manter's ollice was granted, tlie
I'liurt, however, expresHing an opinion that tlie
iirayer of the petition eoiild not he granted.
The Miiiiiciiiiilitii ill Or/iiiil V. /{iii/Ici/, I C'liy.
( liamh. '27-. -N'aiiKonghnet.
All onler to make iiersons interested in the
i;i|iiity of redemption, parties in tlie master'ti
Dttice will not he granted ex parte. Is'otiee
ilimild he served on the owiuth of the eijuity of
adeiiiption already hefore the eourt, hut not on
tbiise proposed to he added. I'lninr v. I'anmff,
U'hy. Chamh. 3'>1.— Mowat.
But sueh order was granted ex parte in Cnm-
iiiiiujuv. ILin-Unii, 1 Chy. t'liftinh. ,3(i!t. — Spragge.
All ttpplieation to amend after deeree, under
M-iler 438, hy 'adding a party interested in the
i>i|iiity of redemption need not he on petition,
liiit is properly made on motion. Where sueh a
miitiim was opposed on the grounds of irregular-
ity, as not Injing hy petition, the eosts of op-
liDsiiii.' it were refused. Jlarrinon v. ilreii; '2
('liy. Chamh. 440,— Taylor, St'cretary.
Sec Ktniihli' V. Moore, \ f'hy. Chamh. 5fl, p.
■:3;3 ;
•:382.
Vnmi-run v. Li/ms, 1 Chy. Chamh. 4'2, p.
See also Pleadiso in Equity.
title, hy an ime.----^^„ ,,,,,r|
iti..ul>y,t^'^i:!r"a^other.V-Ay''1
r^n';l:;al^defeudantsh..nH
for rel
LonammW ;^' ,i.-avrop
■ KT'\ he may Seem if l>e a«>«,
er that "« "'*\' ,u of pay"!'^''' 1
, in case of default oi ^ ^ ,„ pJ
L and SacuKJx bocieij
4. Di'Cni',
(a) Form of,
Wlicre a mortgagor has executed several mort-
.iiges, in one only of which his wife joined ; the
[TOuer decree on a hill for foreclosure against the
willow and the devisees of the mortgagor, is one
mtlie usual form against them all, with a declara-
tiiiii that upon payment of the mortgage executed
1 iv the widow, she shall, if she chotise, he let into
I Ler ilower. Thilmlo v Collar, 1 Chy. 147.
Scmhle, when there are several judgment
I creditors, the decree should give the creditors
1 wcceasive rights of redemption, although very
I short periods must l)e fixed for that purpose.
VArrM V. llopkim, 4 Chy. 431.
V. executed a mortgage to A., then sold part
lithe property to H., tlieu mortgaged the resi-
Iduewith other property to P., who ohtained an
I alignment from A. of his mortgage, and tiled a
"lof foreclosure ajsainst V. & H. Theprojier
Itmn of the decree in such case stated. Perkins
It. Ymulerlq}, 11 Chy. 488.
^^^lere there is a dispute as to the ownership
lolthe etjuity of redemption, the decree should
uoally contain a direction to the master to in-
knire as to the ownership Inifore a day is ap-
jointed for i>ayment. Cmjleij v. Hoilmon, 13
llTiy, 433.
A. and H, mortgaged to f'., and aftiTwanlti
Hold and eoiiveyi'd tlie same property to 1)., re-
ceiving Imek a nmrtgage for the piinliasi' money,
whieli exceeded the umiiiiiit due to ( '. A., with-
out H. 's authority, asHigned tiiis mortuage to (',
hy way of fiiitlicr security for the dJlit due to
him hy A. and H. On a liill hy W. against all
jiarties, it was Held, tiiat tin [iroper decree wiw
the same as if the purchaser had liceii thit luigin-
al owner, and had executed a first mortgage to
C., and a second innrtKaKc to .\. and H. lira-
liuiiivwAiiilirsiiii, It'iChy, 181).
(h) Foriflomiri' or Sale.
Wliere a hill pniys a foreclosure, and some of
the parties interesteil are not hefore tlie court, a
sale cannot he decreed. liilhitne v. Caiilcutt,
I Chy. 81.
A l)ill of foreelosiire having heen taken pro
eonfesso against sniiie of tlie defendants iiiidor
the general orders of the court, is not a reason
for decreeiiiL' a side as against those defendants.
Ih.
The trustee of a mortgaged estate asking a sale
in a suit for foreclosure, is not released from tho
payment of the usual deposit rei|iiired on such n
decree. Mucin II v. ('iiiiii>liill,^y L J. 117- Chy.
A mortgagee is entitled to a decree for a sale
or foreclosure, at his option, as against tlie mort-
gagor. .1/i//( /-.•( V. Jliirriidii, 1 cTiy. 44!(.
Where the prayer of the hill is for either sale
or foreclosure, the court will, at the iiistaiici' of
the plaintitr, niakt^ a decree for sale, and in tho
event of a sale failing to cover the claim of the
plaintiff, order foreclosure. Jiltu-lij'onl v. Oliver,
8 Chy. 391.
The orders of .luuo 18(11 do not entitle a
defendant to insist upon a sale instead of a fore-
closure against the consent of the mortgagee,
without paying in the usual deposit uimhi his
undertaking the conduct of the sale. Tlie ohjeet
of the order was to cnahle the court to grant the
defendant that indulgeiiceiipon the eoiiseiit of tho
]ilaintitr in eases where the plaintilf desired to bill
at the sale. Tuylor v. Wolbr, 8 Chy. .'iOG.
In this case a reference was directed to tho
accountant to eiuiuire whether a sale or fore-
chisure would he li.r the hcnetit of the infant
defendant. Hy his report made under this <le-
cree the accountant did not certify specially aa
to this reference, hut the accounts were taken
and those of the incumhranecrs who had proved
were ordered to he paid in the usual manner
under a decree for sale. An application was
made for a linal order for sale, hut was refused.
EdimnU V. IMUij, 2 L. .J. M. S. 302.— Chy.
Chamh. — Taylor, Secretary.
Where the decree is for sale, the court will not
on default grant an order of foreclosure, ex parte.
Oarratt v. McDonald, 1 Chy. Chamh. 335. —
Mowat.
After a decree of foreclosure, defendant applied
in Chambers for an order for sale, the property
mortgaged being worth.?!, 000, aiul the mortgago
l)eing for $157 ; and that the usual deposit niight
l)e dispensed with. The Secretary considered
the General Order imperative, and refused tho
application. Thompnon v. Mucaitlay, 3 Chy.
Ghainb. 111. — Taylor, Secretary .
2379
MOIlTOAfJE.
2.1
■:^i !"
III HiiitH fur fdri'iIiiHtiri' or nalc, iiiiitinii fur n
ili'Lruv 14 to Ik' iiiiiiIo in rhiiiiilicrs iiiiilcr iinlcr
43r> only ulicii infaiitx .ilmio .irn cuiictiriK'il. If
thuri' l>u iiIhi) uilillt ililL'iiiliuitM, tlui oiikv nliniilil
lii^ ruK>i'"i''v '**''' <l'>u'n for liuiiriiiK lioforc tliu
court, l-'iiilirhiii v. Kiilfi, 1( L. J. N. .S. M. —
(Jhy. Clmiiih. llolintiattid, Hij'nir.
(o) A iiinnhmiit af,
A fiiniiiniiry rt'fi'ruiioo for forcclonnri) Imil Injen
inaili', iirnl on inoifoilinj,' in tlic niimtfr's otlioo it
was (liHiiivcreit that tlu'ic wi'ic m^viTal rcj^iHtoriMl
juiljiiiifiits a>{iiiiixt ili^ffiiilanfM. On tliu iilain-
tirt'n motion tilt' ilt'i'i-fi' waM anu'iKlcil liy iiiHi rt
itig a iliri'i'tion to tlio iiiaNter to ciiiiuiru ami
report ii)Min tin! [irioritii's, iVc, of tin: .imtgnient
creilitoivs, on iiayniunt of iimts, and without a
ri'ntrvatioii of luitlior (liit'ctioiis. Mnj/'n/t v.
J/o/rA, ;( Chy. |(i;<.
Wiii'i'i', on a 1)111 jiraying fr)ri'cloHUiv only, a
(lecreo tor naif wan drawn nii, with a diruction
that tho inort>;aL'or Hhonid pay any deliuiuncy,
till! court, at the inHtanco of tliu iiioit|,'agor, four
yearM aftt'rwardu, aniundcd thu decrcu hy Htriking
out tluH direction, liut ordered him to pay the
COB a of the iirocuediiij's under the decree. L'nck-
vim. -v. Jiiitlovk, I'-'CLy. i;W.
An ineunihranccr, iiiado a party in the iiiuh-
tei''n ollice, under the general orders of the Oth
of Fel unary, 18ti."), cannot, after fourteen (hiys
from the service of the decree, tile a petition to
vary it, without first obtaining leave in ehanibers.
J{ui- V. ,Sf iiiluii, 15 t'liy. I'M.
(d) Si/tiii'j Axiili:
A decree of foreclosure alisolute drawn up and
entered, was set aside at tiie instance of a pur-
chaser of the eijuity of redemption, whose inter-
est was actiuired after the institution of the suit
to foreclose, ))ut without notice of it. lliUini'd
V. Vanillin- II, 7 Chy. 'JO.
(e) Otiiir Canes.
Where a hill of foreclosure had been filed by
the executor and devisees of the mortgagee, and
the executor alone attended at the time and
place a[)pointed l)y the master for payment of
the mortgage money to the plaintitl's ; as it did
not ai)pear that the debts of the testator had
Ijeen paid, the court considered the plaintitfs
entitled to the absolute decree of foreclosure in
default of payment. Eraiin v. Parker, 2 Chy.
555.
In January, 1841, an original decree of f<ire-
closure bad been made. In pursuance thereof the
master made his report, and in May of the
game year the cause was set duwn for hearing on
further directions, but the decree then pro-
nounced was not drawn up or any entry made
thereof. A motion now made to allow the plain-
tiff to draw up and enter nunc pro tunc the
decree on further directions, from minutes
alleged to have been prepared by the registrar,
was refused. Drummond v. AmUrsoii, 3 Chy.
150.
A court will not grant a decree of foreclosure
in the first instance, where the lauils of the
judgment debtor are not specifically set out and
the value of tliein statL'd in the bill, dlii/iii
, t'rirk,l/nii, a Chy. :\'2'2.
Where n dueruu of forudoauru iditained ii|
a mortgage payable by iiiMtalinentM Ii.ih !,<
stayetl upon iia,^ nunt of the amount actiin
I due, and a HUlise<|nent default oiiiirs, the |iro
I order to make is to direct the whole suin sec u
, to be paid, with liberty to defendant to imy i
I HUiii actually due, and slay jiroccedings thi'ie
Strailiaii v. Ihrliii, I Chy. Chaiiib. >S, Ksti n
I A (iiud decree of foiiilosiire had bci n olit.iii
I ill a suit w here the true position of parties v
not disclost.'d or material facts hail l>een miN
' presented, and a bill was sii)is('i|uently liliil
enforce a claim against the party benelicia
interested as plaintill in that suit. The co
refused to make a decree otiitr than would hi
been iiroper bad tli(; true position (rf the jiart
to that suit been stated. II (/.«;// v. /liit/j.t
14 ( 'by. MX
Wliere in a foreclosure suit a clefi'iidant
answer admitted the making of the niurtga
)>ut denied an alleunl agreement to pay an
creased rate of interest, and set up a teinler
the amount he contended was properly due, .i
claimed his costs, it was held not to be a ( ;
where tlie plaintill' was entitled to a prui'
decree, /{hum \. I'adir, 3 Chy. Cliamb. 'j;i(l,
Taylor, h'ifi rci.
5. Final (Irdi r and Di-rrvi-.
(a) Practki' ou A/i/iliratiun /or.
Where a mortgage was niixde to secure a pa
nership debt, a tiiial order was granted, altlnm
one partner had not executed the iiowcr of
torney to receive the mortgage money, or iii^
aflidavit of nonpayiiieiit, it appearing that
partner was and had Iioeii for some time res
out of the country, and had never interfe
the mortgage transaction in any way. ('
v. H'l/ldr, 1 Chy. 538.
A decree for foreclosure being erroiieoiiK,
court refused to pronounce a linal ikcrce >
fault of payment. Cmninnrial Hank v. Cn
4 Chy. 4 111.
After a lengthy period has elapsed since
day appointed for payment, it is neeessar\
give notice of the motion for the tiiial
KircliiijI'i-r V. StaJ'ord, '2 Chy. Chamb. .VJ,
lor, SecreUiri/.
Where a mortgagee ha<l become banknipt
he, with his assignees, had tiled a bill t
close, a linal order was granted, althougli
the assignees being absent had not executcil
jKiwer of attorney to receive the niorti
money, or made atKdavit of non-payineut. Ly
V. Kirkpatrkk, 2 Chy. (j2a.
A plaintiff who goes into possession i>f
mortgaged premises and receives rents after
day appointed for payment by tlie iiKirti;;
ia entitled to a final order of foreclosure wit
a new account being taken and a new Aa\
payment given to the mortgagor. .Semblt
plaintiff in such a case should serve the iiini
gor with notice of the motion for the tiiial m
Furtman v. Smifh, 2 L. J. N. S. ItJT
Chamb. — Mowat.
Where by his report under a forecliisiirJ
cree the master appointed a time for all tik'
red
•2:^81 »
llbiM V,
2381
M(HIT(}A<JK.
2382
,\ ill the \M-
,..,..«r. .^.t'vi.;;i 'jv-
of
t\H' munvii'l arti.alls
itttC't. TWO. ..UK
• "'t:;:::'- //"■'.
itlltetl-
it a iU'fi'n.Unt l.y
it to i-.iy ''" '"■
.'f „ .IfU'llOlOll '■
^I: ulaUu,g ..f the ......^a.
^"^l" ^^'f ; : iKvautca, alth..ugl.
""^V'ox cut a'tl-' I--'- '" t
oayncui'. - ■• » time vemdew
ill
ausactiou lu any
538.
Nvipii.'iit iiii!Uni1>t'niiourH wlio itrovoil licforu liiiii
to ri'cliu-iii the |ilaiiitiir, onii ol wlioiii at tliu tiinu
aplHiiiitiiil |iuiil till' aliioiiiit ami took an iiMiiiuii-
iiR'iit : Mi'lil, tliiit till' iiK'iiinliraiici'ix who iliil
not r''ilrt'ni wuri- tMititlcil to tliivi' iiioiitiM furtlii.r
tiiiic lii'tore tlic CO ili.'Iciiilaiit coiilil olitaiii a tiiial
foruoloMiirt! a^aiuHt tliciii. Anlmjli \. ]ViUiiii, '1
I,. .1. N. S. '.'7(1. <'liy. Cliaiiil'.. VaiiKoiigli-
liot.
W'liuro a l>arty rntitli'il to a final onlur of
|'iiriH.icmiirc lu'jjloftH to apply until nearly two
ytarK al'tir liix lielit to tlie oi-ili.r tir.it aicnicd,
till! order will not lie u'raiiteil e\ parte. Aiilii'/li
V. Oirlnin/, •-» I,. .1. N. S, ;io;i. Chy. Clianil..
Taylor, Si fn tnri/.
On an a|iplieatioii tor a tinal order of t'oro-
iliiMnro the allidavit ol' the athiriiey aiipoiiitod
hy the ini.rtj^'ayee nliewed an attendance of only
a i|iiarter of an hour at tlu^ aiipointed place, the
siilicitor'.M olHee. There wan al«o another allidavit
iriiin the Holieitor that no oiu' attemled llllrill^
tile two hours appointed liy the inaMter'M repcu't
t(i (lav the inortgaj'e money. Order graiituil.
Mihli,l/\: //((//..I, :» L.l. '-'HJ; 1 Chy. (..'hanil.. .".(1.
— Kstoii.
After till) day appointed for payment the
plaiutill' entered into po.sse><Mion of the iuortj,'age
lireiniNes : Held, that the plaiutill' Wiw entitled
t.i a liiial decree of foreclo.siire without a new
liaoiintlieiiig taken. tlrnnKliiililH v. lilnckiruinl,
ICliy. Clmiiil). tiO. Ulake.
Ill proceeding itinler a ruference liefore the
manter, one of the dufeiulaiitH, after heiiii; nerved
with tlie lir.st warrant, alweonded from the juris-
ilii'tiiin, and the suliMe(|Uent proeceilings in the
Miitcr's ollic'u were left at his I'oriner place of
alHHle. The court, under the eircuniMtaiiceM,
niaile the decree for foreclosure al)8olute for
V. Conrlii'ii, 1 Chy.
for V'vy'V'^f -f,;; the tinal enlev.
. ,n,ec<>mo l)anli'""Vt. «"'"
Lsignees, Ua ' although eiie ol
^ absent imj^ „,„rtgag,
teavlt|^-i-y'-^- "^ «
Uses and '^«':''V^*;%i,e luortgagorJ
a tinal order t lor ^^^^ ^^^. ^ ^
fu to the "^^y^iKvctl'-^'H
Ich a case s^'^y^^^r the tinal or.kJ
Leofthemotioiifortu ^^,. _^,^y,
IVmi"', 2 L. J- -^- "
m14
wr appointed a tunt lo
ilifault of payment. Whit
1 (.'liauih. (i(i. — Spragge.
(Ill a motion for a linal decree, it ai)i)eared
that several unnecessary parties were aiided in
I tlie u.aster's otiiee. 'I ho motion was refused,
I tiiil the costs thus caused were de.lucted from
I tliu plaintiirs bill; the amount then aiipearing
1 line was ordered to be jiaid in two weeks, or in
liWiaiilt foreclosure. Itiii' v. Jiniokn, 1 Chy.
Illiamh. 71.— Hlake.
I 111 application for a tinal order, the phiintiff
IAiiuM shew that he has uot been in possession,
liir in tlie receipt of the rents and profits. Svalf
\\..\l(l)ijiii'll, I Chy. Chninb. 193. — Spragge.
The nianager of the bank where mortgage
iBoiiey is directo<l to bo paiil should certify that
Ithe uiimey has not been paid before, as well as
loa iir since the day appointed. Furrell v. Stoktu,
|lChy. Chainb. 201.— Esten.
_ Tlif bank certificate of non-payment should
IWii'.ade by the cashier, or other like ofticer. A
■certiticatu of the accountant, as such, is not suf-
ISjimt. "nmpMlw Unrretl, 1 Chy. Chamb. 255.
-Spmgge.
Where the report apiKunting the time anil
Sltce for payment has not been uontirmed before
(lay appointed for payment, a tinal order
11 not he granted. Mountain v. Porter, 1 Chy.
inib, 207. — Spragge.
l^Miere the plaintiff resides out of the juris-
[etidu, the attidavit of non-payment being maile
^an agent of the plaiutill, it must be shewn
where the eUHtinly of the morfj,'igi> liiw been.
A'd' V. SIkiii', I Chy. Chaml,. 'JO't. Sprag^^'e.
Wliere the plaiiifill' re^tiilcH oiit of the juris-
diction, aiiil the alliihiMt as to nmi payiiimt \h
ni.iile liy his solicitor, it must be shewn that tin-
plaiutill' has n.> other agent within tln' jurix-
diction aiithori/ed to rci'ei\i' the iiioiuv. Tuylor
V. t'litlihi ,t, I Chy. ChaiiiU. 2ltl. Siu'ajiue.
Where co-mortgagei's are made co-plaintill'i.
the atli.l.ivit as to non |)iynient, to obtain a linal
order, should be niadi' liy .ill of them, .liuiiri v.
Wi/Miin, I Chy, Cliamli. 217. Sprig^e.
Where the allidavit of iioii-paymeiit is made
by an agent of the plaiutill', it slhudd state that
he is authorised to leciixe tlu' luoncN'. /'iic />
V. Ml rriimni, I Chy. ( h imli. 2'J.''i, \'.inl\ough-
net.
On an aiiplic ition by a < ipiny for a linal
order for sale, the alli'livit (It the oilicer of the
company as to nim-puyineiit shmild shew that
he is tiie proper olliccr to rei'ei\ii the niortgagi
money. V'/n W'.ifrrii .l-niirmici Cu. v. < 'ititi'ml,
I Chy. Cliainb. 227. Spragge.
Where the usual allidavit of the plaiutill
shews that he has been in occupation of the pro
perty, it must be referred bick to the m.ister to
take a new account, set an iipation rent, and
aiipoint a new day f(ir payment, althoiiu'li the
plaintifT in his allidavit swe.irs that he w.is in
occupation merely as caretaker, and has received
no rents or prolits. I'lnniiiir v. 'J'liiiiHii'diii, I
Chy. Chamb. 235.— VaiiKoitghnet.
A motion for a tinal order is an e\- parte pro-
ceeding ; it is unnecessary to serve notice thereof
even on iiif.iiit owners of the e.piity of redemp-
tion who have answered. Iliiiili r^mi v. ('•nntn,
I Chy. Chamb. 2!I7. Mowat.
\Vlicre the u.-uial allidavit of iioii-p lyincnt is
made by the agent of the plaiutill' his authority
need not be produced. ItiulrhiiJ', v. Ihal'i/, 1 ( 'hy.
Chamb. ;{02.— .Mowat.
The allidavit of non-payment .sli.udd be made
after the day the money is due. H/'inii v. Ki u-
mill/, 2 Chy. Chamb. 4.').'{. — Taylor, Sfri'itr;/.
The Court of Chancery will not entertain a
suit where the subject matter of litigation is a
sum not exceeding flO. Where, therefore, after
default was made in payment under a decree in
foreclosure, in a suit in which the bill was tileil
to enforce a mortgage .securing .<1S..").3, a linal
order Wiis refused. S/imr v. Fi-ki/'i, S 1-. .1. X.
S. 13(>. -Chy. Clianib. — T'aylor, Sifnturii. ,.^ee
also, iiillxr/ v. Jii-ii'ilhauiil, 3 Chy. Chamb. 413.
(b) Stttimj Axiih.
Seven months after the final order the mort-
gagor moved to set it aside, on the ground that
several mesne incumbrancers had not been made
parties, either before decree or in the master's
othce. The application was nd'used with costs,
on the ground of laches and because the objec-
tion was not taken in the master's ottice. Came-
run V. Li/iii's, I Chy. Chamb. 42. — Ksten.
Where there were several plaintiff's in a suit,
and a tinal order had been obtained by their
solicitor ; — Held, that their sidicitor could not
afterwards move lui behalf of the defendants
foreclosed to set aside the order, though two of
the plaintitl's concurred in the application and
M #
•2383
MORTGAGE.
only the third objected. BoiiUon v. The Don
iind Daiiforth Hunil Coiiijiaiii/, 1 Chy. Chaiiib.
329. — Mowat.
AVhere moi'tgagdrs liad been foreclosed, and
the mortgagees liad subsequently sold the pro-
perty, it was held that the mortgagors could not
several years afterwards move in the suit against
the tiuai or<ler for irregularity, without having
ma(^! the purchasers or their assignees parties to
the suit. S. C. Ih. 335.— Mowat.
P. ))ureliaser from a i)arty having a decree for
final foreclosure lias a right to presume that the
court has taken the necessary steps to investigate
the rights of the parties, and has properly decreed
foreclosure. The court will not set aside a fore-
closure after the estate has been accpiired by a
bona fide purchaser for value, on .account of a
slight irregularity in one of the papers on which
the order was granted. Where therefore a
party who was a second mortgagee and had been
.solicitor for the plaintiff, purchased the estate
from one mIio had, for anght that appeared, pur-
chased in good faith for value of the ]ilaintiff,
without notice of any irregularity, and the order
for foreclosure was set aside by the secretary on
.account of the al)seuce of a date in the bank
manaf^er's certificate, an application ))y the pur-
chaser from the plaintifl', in which the subse-
(pient purchaser joined, to set aside tlie secre-
tary's order, was granted with costs. It was
held that the joining in such api)lica^'on by the
subse([uent purchaser wivs not in-egular, but sur-
plusi'.^e at most. The defendant liaving, as it
was alleged, sold his interest or e(inity of re-
demption to a third party, who was uotitied of
this ai>i)licatiou, it was hehl that it was not ne-
cessary to notify the defendant, as tlie purchaser
from him liad been notified. Culliiis v. Di'iiisim,
2 Cliy. Cliamb. 4(5.'). — Spragge. See, also, Gttnn
V. DoMc, 15 Chy. 655.
(i. Forvcloviri' ojtcr Ahurtifc Sak.
Where .at the hearing a s.ale inste<a<l of fore-
idosure li.ad liceii .asked tor, and was directed by
the decree, which omitted however to [irovide
th.at in tlie event (.f the s.ale failing the
defendant shoulil stand foreclosed, the court,
upon petition setting forth the facts, and th.at
the attempted s.ale whi.i had been made had
proved abortive, ortlereil ilefendant to pay the
amount wliich liail been found due, within one
niontii, or, in default, foreclosure, (lomhtll v.
Burroir.'i, 7 ('liy. 449.
It is unnecessary to present a petition for fore-
closure after abortive .s.ale ; it is sufticieiit to
serve a notice of motion on tlie mortgi^gor ; and
the extra costs of a petition .and service thereof
on parties other than tlie mortgagor will be
<lisallowed. (>>l>'ll v. Doty, 1 Chy. (Thamb. 207.
— Spragge.
Where a foreclosure is asked after an abor-
tive sale, the mortgagor must first be aUowed
three months to ledeeni (liriUiiittmi' v. Oiinn, 1
Chy. Chamb. 212. — VanKouglinet.
7. Ojiciiiii!/ Porcclonnrc
A foreclosure was opened eighteen montlis
after the final order, w here the mortg.agor was
illiterate, had had no solicitor in the ca
misunderstocMl the object of the bill, wl
the only pai)er served on him ; the ii
bearing twelve per cent, interest, the ]
appearing to l)e three times the value o
cumbrance, and the whole or greater pa
property being still in the possession of t
gagor. P/a/t v. A^hhrUhje, 12 Chy. 105
Where the plaintiff can be replacei
8.ame position he occupied before the
and recompensed for any d.amage he n;
suffered, and where there appears a pn
the amount of the mortg.age money be
within the period asked for, the court
refuse to open the foreclosure. Wtuhhl
Coll, 2 Chy. Chamb. ()2.— VaiiKoughuel
The eourt will not open foreclosure in
defendant who h.as been guilty of lacl
shews no eflForts to avoid foreclosure
his estate. Jirothcrs v. Lhi/il, 2 Cliy.
119. — VaiiKoughnet.
.Suing at law for part of the mortgage
for which the note of a third party h
given as collateral security, will not o
foreclosure if such suit is brought befo
closure completed. Mills v. Chuati',
Chamb. 374. — Taylor, Secretary.
A defend.ant seeking to open foreclosur
shew some re.ason.able excuse for not re(
at the iirojier time, — .also th.at he has a ]
of jiaying the mortg.age debt if time 1
him, and that the proj)erty is of mucli
value thiin the .amount due. Joluisoii
hr'uhjc, 2 Chy. Ch.amb. 251. — Tayhir, .Vt
The iilaintiff, being owner of land, af
ing niortgageil it, emigrated to Austral
sunseiiueiitly remitted money to his age
to p.ay off tlie incumbrance ; but, they
the money to their own use. S'.ibseipn.'
assignee of the mortgage proceeded to fi
in which suit an answer was put in on I
the pl.aintitf, but without his knowledgJ
sent, .admitting the allegations of the
that tlie full amount of princip.al and I
was due ; whereupon a fin.al onler of fcup
was, in due course, ohtained ; and tin
in that suit conveyed to defendant A. fil
the value of the property ; and on tiie si
defendants M. and 8., .as attorneys of tf
tiff, conveyed the premises to A., whj
norant of any frami in the matter. '
tiff having returned to tliis country, ai|
t.ained the frauds which hia<l ))ecii J
upon him, tiled a bill against his ageiit.T
purch.aser A. :— Held, that the plaiiitii
as the purchaser was concerned, wa- 1 1
his answer, and was not entitled In
.against him ; that the fact of the purcli;!
ing heard before his purchase that til
tiff had remitted money to p.ay the J
was not sufficient to ch.arge liim with iiif
the foreclosure was wrongful ; liut, iiil
the fraudulent conduct of the attonil
court made a decree against them for tliiT
re.ah/.cd on the sale of the land, and [
them to pay the costs of the suit, inclil
costs of the purchaser. McLean v. (\
Chy 71).
The recovery of a judgment against <
after a final order oj)ens the foreclosiirij
the defendant in to redeem. In such iJ
■'f^f^jiSeairj^
2384
1 hail no solicitor in tho cause, and
kI the object of the bill, whicli was
i)er servetl on him ; the mortgage
ve per cent, interest, the property
be three times the value of the in-
ml the whole or greater part of the
iL' still in the possession of the niort-
Iv. AM>rid<i^, 12 Chy. 105.
e plaintiflf can be replaced in the
in he occupied before the default,
used for any damage he may liave
L where there appears a prospect df
of the mortgage money bein^- paid
)eriod asked for, the court will iidt
en the foreclosure. Waddill v. .V,;.
Chamb. (52. — VanKoughnet.
will not open foreclosure in aid <if a
k-ho has been guilty of laches, and
fiforts to avoid foreclosure or save
liroihcrs v. ///o</'/. 2 Chy. Chaml).
[oughnet.
aw for part of the mortgage monuy,
lie note of a third party had hww
dlateral security, w-ill n<it open ttio
if sucli suit is brought before fore
ipleted. MiUa v. Choatc, 2 C'liy.
r.— Taylor, Scrretari/.
ant seeking to open foreclosure sliouhl
reasoualilo excuse for not redeeining
>r time, — also that he has a prosjject
he mortgage debt if time be given
lat the property is of much greater
the amount ilue. Johimm v. Afh
hy. Chamb. 251.— Taylor, Si-x r'lanj.
itiflf, being owner of land, after liav-
ged it, emigrated to Australia, and
ly remitted money to his agents here
the incumbrance ; but, they apjilied
to their own use. Subsecpieialy the
the mortgage proceeded to foreclnsf,
nit an answer was put in on belialfof
ff, but without his knowledge or con
tting the allegatiinis of the 1)111, ami
ill amount of principal and interttt
whereupon a tinal onler of foi'eolosiiri'
e course, obtained ; and tin; iilaintiff
t conveyed to defimdant A. for.*lllOi,
i)f the property ; and on the same day
! ^l. and S., iva attornevs of tlie idaiii-
yed the premises to A., wliowasig-
liny frauil in the matter. The idain-
; returned to this country, and ascef'
3 frauds which had been inaetiseil
tiled a bill against his agents and the I
A. :~Heltl, that the plaintitf, so far I
chaser was concerned, wa- iMuindl))!
r, and was not entitled to rehif aj|
tn ; that the fact of the purchaser hav-
before his purchase that the [ilain-i
emitted money to pay the niortgagel
irticientto charge him with notice that|
osure was wrongful ; but, in view
.ulent conduct of the attorneys, M
e a decree against them for the ammuiB
n the sale of the land, and direct**
lay the costs of the suit, iiichnhiig tM
he purchaser. McLean v. VrMi, '
iovcry of a judgment against detViiiH
lal in-der opens the foreclosure andleU
dant in to redeem, In such a case tni
238r)
secretarv im'kI.. .... i
-P..tt ng the .lefen la '.,'';";« ■•^^;'I"iescod i„ ;
•luent mterest and cos s ' d "l' '"•''■''^ «"'««'
anec issue without fu.tL; . /'"'VV'" "^ ''««'«*■
"' r«yy.ent at tinie ' ,i .. ''''';j;!//'^'f'"'It made
•^- '^"'Ul V. Snm, ,0 ( 'hy. .,2. p. o.,«4.
MURT0A(JK.
„ , -'38G
>t is not .'cccssary ' ,;:, "^'^T '","*'* ''« *«^n-ed •
~-.i.- .S'praggc. •'">'" ix'sscssioii. ,S'. ('.^ n,
(-'•f t'wthl;t,.r!i4j^*T;<i «"'* 1ms been
t".""«lM.ot asked .•:.,';;;•>'■■'«;••' l"--">-«4 . ^^''"-■'•^ ".ore than thr ^ ^'
"^'y I •i/ini/i. I CI.,, /.i' ,"-" "' ' .s."ioii. /rrhiii y
what broader 1; U "S. t ?"' ""'^ '^ ""'- p-"-' the tuilrlhW f ^ b"?'?!?-^'' ''-"'« re.
'^ ;• T ' ' """■■ ''"" • £at..':h:b-,r'i -'-S:«'i
Wt'l'l, that lllldi.r- fl... 1
■'"■"■- '«<-•'. a ,,.t,i '"• '^''■■'' "f tl'-- 2!»th .,f
'■-•'ler for ti,o d .ef^:rof ? ""* ''"^''t'-' *'. .■
the tenants „f ti, ,w„ I""*'^^*'""" 'ts against
'''a'"')'. JI7.-Spr,,gge ' ^'''•''""", I Chy
It must be sill. 11-, .
''-t is in p.:!:: :" -;-;;« that t,„ ,„,...
•U'aiHst ,t te„,.u,t ,„. tliid, 1 ?''■'■ " '" '"' '"a'le
■>,]«rt,v to the c.au«e & '" l"«'^"-^--io„ „„t
"'•^'- *'''••""'•• 3!H. Tayii ':.".•"/■• "'.'/.'/'Vs 2
''lyioi, ,S,rrr/,,ni.
Alter .sale iiiuli.i. .. 1
"f l-~'m "I ,;,:':::'^ --•''-■ ^.r delivery
a«a."«t a pc-son not V art v ''''■! ''"'^'' ''^' """'^
'l'''''r«-%'fthere beany i,,-',i,*'' "'^^ «"'' : .1....I,
"'"■ l-"''-'te lite' w I 2'? '■■''^•■'"" I"---
'^'••ii'nod .a li,.„ ..I, ,^„ ' ■' •'"'1' . whose soJieitor
."^^■'"H-l t:. .leliver h' to th "'"■'/ l'''^'-'>'' «'"l
not„i„ f,„. t|.,t p,„., . ".,''. ,*;^ /""••tgagee. ()„
wj;.r •^^'"-!'i;:i%i^^fe
,;;-'7SS,^::::r.;;:'!;-:!:;;''^^^''yti-
l"-"ved. the onler wa, n lo h l"f-"*^'««i"» was
A motion fo,.,,,,.''"?'^*'""'"t'^<'«tH- ^'>.
".'•■"l*^,"-' notice. /M,,;; l'~j''» "'"St be
<-'-"iW3!).--TayC^;^,;„,^'"^'''^ 2 Chy.
-'^/^Vi2i^r2S.'''-' '^^Co...no,a.
" ''PpHcati.iu ,.,.;r ::, j';"""^'"'' '^^^'-' l --^O. an,f :r;;C^ ^;;it "!-; ,^ '"".-tgage for
^" applicati.,,, f,.,. „. ,.„,, ""^"■'' ''^'-'- I • -^0, .:nd':r ;Ch ollit r " .^^ """-W f„r
'"" l-t' "'a.le the me s ''!'' l-Hses.!,,,, ,,,„. ' .'^dv ,,.ced, the " , ,/ ' '>^ h'"" ''a.l been in fact
l"~..,,.etH-eenah :, .,,'^;:'« *'- ''i^^ t, /j'^ and'.i .l^' ^ l^^"--' the additiS
» tro.sir,.s.ser. A\-|n,,.e .,,,' •""' '"« te„;i„t, „r , t'lo a,ssig„i..i. „f tli. ,n !' ' '"" I'l'-^'^'tiff, bein»
'^™!'t 1 attorned t'l t .„ o,?' '" ''^''^''''-^ '■^''•"^■^■'' *''-'<« It ,■ ,' ^?«'', ""''' «Iai.ned t*
Mn « snc, ^.„,,^„t left tin i*'"'^"'"' "'"' •'^'ter- "l"m his covena.it ''",'H"'*' '''« as..ig,.or
^■" '"t" the J.andsof .,,','''''''"'''■•■'*• '"'-l they nty. &e. .-^ 1,^ "* ' ' t"" v.ahdity of the secu!
,: ^ - /'A.., 3 Chy. ('l.i,:i.:^,^f ^1^:- • ... a mort, ..ee is alw.v. ....... . . .
: V. '" \-^ 'il-l a bili*- , fi ,.: t r,;^:"* "'ortgagee
•ate lis suit i„ that of f e , ,.; "'•' *" ^"""«''l'-
'■•'.« "It-l a bill afte, h i, -'L .•;; """■'f;'g«e. who
' "•'-;•■ ^:"«ts i., s„eh HI ' 'o, " '^': al "we,l his
^n««^es.i,i,,-— ;;' ™''''- I-arty, an onle
h''tl::''2fc';'::rtr^-'''^^''yMn.n.haser
'I'^i'k notice m.iJf. ''"''"""- ■■""I of tl„. tif,.
-jwc), or,if,!r;:7;;!;;'f'-piai,,,i,r,t£^
jyajjij,,.. ' ' ' 'ly- Chamb. 2;{2.--
not 'vceived.sM;ic ..^'^Vir.'iIf.T''"*''^''- ''^ 1"«
''^' '"•'■ the c<.,,,,.>euceme,t? ' """.""^""•'•ranco
uooKs, for paymeuts to hiu,
i1f\ l?l^)
i A
'I I
i;].'^;
JMoUTlJACIh:.
by the mortgagor, his excu'iitors, iiftiM- liisiloco.-iso,
claiinud :v l.irgc sum to ))o due on tlie foot of the
mortgage. 'I'lie mortgagor teiulured a certain
amount, saying that he was willing to pay any
.additional sun; that might ajipear due after giv-
ing him credit for the alleged payments. A hill
■was afterwards tiled to foreelo.se, and on taking
the account a sum of hetween t'2 and €,'<, over
and .ibove the amount tendered, was found diu'.
The court onlered the [ilaintitl' to pay costs.
Uoniwull V. Uniini, 3 t'hy. (!.S.'{.
The court will not compel a mortgagee who
holds several mortgages from the same party on
the same land to procce(l only on one liill tihid
for the foreclosure of one of the mortgages, as
the decree for redemption and re-conveyanee is
at the mortgagee's risk ; ))ut his liling more than
one hill may intlueiice the discretion of the court
as to costs. Ntililf V. l.iiK. 5 L. J. Ki.S. — t'hy.
Cliand). — Esten.
A special order will not he granted, directing
the master to en(]uire as to the necessity of
bringing two suits of foreclosure respecting two
mortgages between the same parties, as the mas-
ter liivs jurisdiction to make such encpiiry and
disallow the whole bill without any special
direction, nnder the common ordia- to tax //( n-
Atkiiisiiii mill Pi'iili !i, siiliriliirs, I (hy. C'hansb.
193. — VanKonghnct.
Where .a jplaintiil' in suits for foreclosure or
sale asks for a reference to the master to enquire
ns to other incund)rances, he lakes such refer-
ence at the peril of costs, if tlu'iv are in reality
no other incund)ranccs. Iliiiiiiliuii v. J/uiriinl,
Jiiinitiili V. Liuiil, 4 Chy. "jSI.
Where a bill is tiled to foreclose in respect of .a
demand not excei'iling €.")(>, the plaintitf' will be
entitle<l to his full costs if it appear that there is
an ineund)rance bi'youd that sum. Iliiimni v.
liontx, 1 1 ( "hy. l>0-'.
When a plaintitf tiles a bill in this com t t<i
foreclose a mortgage for a sum within tin; juris
diction of the county court, no costs will be
allowed him. ('hhih II \. Ciirraii, I Chj'. ( 'hamb.
11. Spr.agge.
The fact that defend.ant is resident in a cimnty
other than where the laml is situate, will not
vary tliia rule. / l>.
A mortg.ago was vested in trustees. One of
them sued at law on the mortgage as iilaintill's
attorney. A bill was afterwards tiled by another
solicitor to foreclo.so the mortgage: —Held, that
the plaintitts were not entitled to the costs at
law in additi(m to those in eijuity. (Jiiliinu v.
Wiini(d-i'i; 13 Chy. 44.3.
Where .in .appe.il from the report in a fore-
closure suit failed on the main point, and suc-
ceeded only in respect of a redemption, the
court gave the respondents the costs of appeal.
linnndii v. (Jiiiiiiiinjliiiiii, 13 < "hy. oSf!.
A mortga^'ee shouM not create unnecess.iry
cx^Xinse against the mortgagor, by executing
several powers of attorney, (tomlhiir v. Cniiir,
1 Chy. (Jhainb. 13. 151ake.
Where it is shewn that a mortg.igee has f(U-
the boiiil tide purpose of preseiving the mortgage
premises from destruction or delapidation, in-
stituteil proceedings at law to obtain possession,
he will not be deprived of his costs in ecpiity.
DtdUw V. Qow, 1 Lliy. Chamb. Go. — Sprivgge.
Where a niort.jagee proceeds both at la\\
in eipiity, he cannot, in the .ibsence of s]
circumstances to justify the iiroeeedings,
to take the Chancery costs instead of tin
law, if the defendant object. Il'i //• v. Ti
! Chy. Chamb. .STl. .Mo'wat.
After the hiss of a mortgage deed, the i
gagor olH'red to jiay the overdue interest, i
atliilavit lieing produced that the mortg.ngo
not parted with the mortgage. The atli
tvas produced acconlingly, ))iit the niortj
did not make the payment, and a bill of
closure was tiled in resjiectof this and subsci
defaults : Held that the iilaintitls mustbei
expense of jiroof of loss and the expense o
indemnity boml, but v>t^re entitled to the i
costs of the suit. MrDiniiilil v. JUnii', \'y
7-'.
\N'herc a defendivnt had by answering wi
his right to security for costs, and the plii
assigned his interest in the mortgage, thesu
of the suit, to a party resi.lciit out of the
diction : Held, that the defendant w.is cut
to security for costs .against the new jilai
The fact that the suit was a foKclosure suit,
held not to disci title the defendant to the c
for security against the plaiiitili', althou
mortgiigor, lie disputing tliat any thing wa.s
and the master being directed to impure "v
if any thing was due." 'J'Iiiiiii/i.sdh v. I'li'luiji
Chy. Cliamli. l.'t. Taylor, Simlnri/.
The rule of this c(mrt, th.at when the sul
matter of a suit is settled by defendant b
decree, the (jucstion of costs cannot be ilis|i
of on a sumniary a|(]ilicatioii by [ilaiutill', ii
defendant coli.seiits, applies to mortgage s
A ilefeiidant in such a case may insist on tht
going to hearing, as there may be groum
which he may be relieved from 'dsts, W
under such cireumstanccs the referee refur<.
application by iilaintifl' for tin; payment
feiidant of the costs of the ."uit, an apjieal
such order was dismis.sed with costs. .)/■
v. ('rii.1.1, 3 Chy. Chamb. 432. .Spragge.
Where a bill had been liled on a iiiortj^
which only a small sum for interest had 1
due two days previously, and defeiidaiit's
tor hail called at the pl.tintitl's solieitor'.s
and left woril that he was reaily to \i;
money, the court refused the plaintill' lii.s ■
•and -Held, that tin; bill was iiniicce.ssaii
improperly liled. /'(.
See Mitn.siiii V. Itnliliii, 2 (>. S. 41, p.:
Vnink.'i V. JIiiii/iis, 13 Chy. 48"), p. •.'.•(T:! :
iiitty. FuriiiMii, 15 Chy. 117, p. -370.
10. Olha- ('lis,:',.
Sec. 8 of (). ( ). !» of .lune, 1 8"i3, does imt ^
to any cases other than those for foiecl
specific performance of an agreement. Jin
^/llllh\'lll\. J/iilrli, 1 Chy. Cliainb. r>7. >ipr
Whore an order for sale h.oa been taken (
parte by mistake, in lieu of .an order fm-
closure, the court will vacate the oiilci fo
and grant an order for fon^closure c^
Midillirriii/ w t'liiiiiiVH, I Chy. Ciuiiiili. I
WaiiKoughuet.
Where the purchaser of mortg.agcil ]m
had perfected tiis title thereto by a eunvc;
II -HI riiir'iiirirTiiln--tWt)ta'<i»niiiiilliil<8yiM!!il-'ri'-
, ......ceeds both at hw luM
lit (ibject. •" '"
.. n...rt.'a«o .li^cl, the murt
i that the ,nort«a^|; ;>;
\«y"ftthra,uUuhi^e«iu.nt
::rCiaS"«-the.Ui.
f'^"' -:V!iSwCth:!.ti::;
^tS'^'^ ^" ''^^'"^•
^"S SatS.lv. Lit...
:•''"''^ Hr t lUV thiuK w.^*' 'I'"-
'^v^^^'\\^, t^a i^
V 'l'ayU.v, .SV'-'-'""-."-
,.f that when '.ho sul'int
^* '' '1 ;V,st.'aun..t he -Hsvns.a
'■''^'"" V .^ hm hy l.lai"titV, uuW>s
..uinstauce«thei^^'^ , 1^.
IS iiiwi""" , _si>raL'iJ[i.
V Chamh. 43i. ^pr.ifeo
^.»aU.«"mf' '^^,,,l..,t•ss,.li,■^
I at tlie I'Ui""" « , t„ ^,,,v Uk
2389
MORTGAGE.
2390
It V
from a mortgagee who had obtained a final order
of forechisure, ami it was nought hy the mort-
gagor to inijieaeh tlie title of such pureha.ser, hy
reason of irregularities in the foreelosure jiro-
ceedings, of wliieli, however, it was i;>t shewn
that tlie imrchasur was aware ; liut tlio doeree
and tiual order (rn tlie faee of them were regular :
-Held, that tlie juireliaser was not hound to in-
i|iiire into the regularity of the i>i'ooeediiigs ii|ioii
»liieh the deeree and liual order Here founded,
aii<l the hill \\as dismissed with costs, (luiiii v.
Jjulil,; 1 5 ( 'hy. 0.).').
Altlumgh the fact of a mortgagee having ob-
tained a hnal older of foreclosure does not pre- i
elude him from suing for the mortgage money, j
still it wouhl seem that the mortg.agor is not en- '
tirely helpless, as he may oiler to pay the mort-
gage, and if the mortgagee declines receiving the
money tlie court would re.straiu him from after-
wards suing f(ir the mortgage debt. If a''ter a
mortgagee has obtained a final order of foreclo-
sure he has mortgaged the estate, that fact alone
will not deprive him of the right to sue for the
mortgage money, if, at the time of bringing the
action, lie has p.aid oil' the mortgage created by
himself, and is in a position to re-eonvey tlie
estate ; neither does the fact of his having al-
Iciwed the premises to fall into decay jireveiit
him from so suing. (Jowland <•. (iarlmtt, IS
I'liy. 583, ob.serveil upon. Munxi ii v. Ilauss, 'I'l
Chy. -27!).
^iM ('iiriiini// v. l/iiiriiiil, l'2(Iliy. H.'iS, p. 'J.'lOr).
10. <)'/'"• <'"■'"''•'• j
,1,1 H'i'1 does not avv'y
•'•'•'•'^•'"u''' ,r oveelosuR-,«r
Lther than those or . I
In.anceo anagiec^^^^^^
Irder for.de has been; J- 1-
Itake.in H.UO -ui . ^^^,.,^^,,.
l'"'\^^ '^? force U.e r^vM
1. nv
.\ll. Sai.i;.
■•• }f in/l he DiiivtuL
Qiiiere, wlie'l.-v c iuortgagee praying a. sale
an have it whci; U;'- subscciueiit iiieumbrancers
iir tlic mortgagor do not consent, ihthnnv v.
{■tmkiilt, 1 Chy. 81.
I'liiiia facie, a mortg.agor is entitled to six
iiiiiuths to jiay. To induce the court to direct
an imiiiediate sale, or a sale at an earlier day,
siMiie special ground must be shewn. Ithini i/ v.
l'M'i\ 4('iiy. I Its.
A sale will I'ot be ordered until the iiicu'tgagor
liiW had the usual time to redeem. Tru.-il mul
Imdi ( '«. V. />'( i/iiiili/s, 'J ( 'hy. ( 'liaiiib. -1 1 . .Mowat
.\ii order for an immeiliatt? .sale after the
iiiiistcr has lixed a day for p.ayment, and liefore
;t has arrived, will not be made in eliamliers.
Ml V. FUIk'i; !I I.. .1. N. S. ItlO. Holmested,
Kififfi.
\\ liere a party intercsteil in the eipiity of re-
km]itiiin is dead, and his iicirs are out of the
: jiin.-iilietion and unknown, the court has juris-
ilidinii, ill a suit l)y the lirst mortgagei' ag.vinst
I asnlisi(iiielit mortgagei' and the attoriieygeiieral,
1 til ilitfct a .sale of the |iidperty ; and the pro
Icwilin/s laiinot afterwards be set aside liy the
Ihi'irs oxceiil for error or fraud. In such a c.i.se
ItheciiiiiUtions of sale must st.ite these eircuni-
litana'.s. Smith v. (I'mn/, 14 Chy. 411.
.\ii older for an imiiiediate .sale will imt be
Inmki in eiiamb rs, where the Masti'r, imrsuant
[tiiivili'LTee iiiiidc ill court, has lixcd a day for |iay-
jiu'.'iit, ami it has not arrivi'cl. The iiiotion must
IWiiiaik' to the court. /</(•// v. /■'/</(« c, (> I*. I!.
|N.S. "d Ciiy. Chaiiib. Holmested, AV /Vn c.
See Knr v. />'(/«,, l'.> Chy. 'J04 p. 'JMW.
See also .\1. 4, (b) p. 'I'MH.
2. Paiitt)! to the BUI
To a bill by an incumbrancer for the sale of
tlie property, all other incumbrancers, whether
prior or subsciiucnt to the plaintiti', must be
made jiartics in tlie master's otliee, and the pro-
ceed.-; of the sale will pay oil' all incumbrances
accoiding to their priorities. Whitr v. Jitu/<lri/,
•2 Chy. ('.CO
To i bill by a mortgagee for a sale after the
mortgagor's death, tlie personal representative
of the mortgagor is a necessary party ; but not
to a bill for foreclosure. Whitr v. Jln'njht, 1 1
Chy. 420.
See ChrLr v. Ji.xt, 8 Chy. 7, p. 2345 ; Hod-ins
V. Johiiiloii, r. 1". K. '257, p. t'S'Jl'.
3. Ihcrei',
Where a ilecree is sought to be changed from
a sjile to a foreclosure, the cause must be set
down to be re-heard, and notice serveil on de-
fendant, although the bill has been taken pro cou-
fesso. McCliian v. Jncnhs, '.) Chy. 50.
The owner of lots A. and 15. .sold A., but the
eoiivcyanee was not registered ; Ik; afterwards
mortgagci'i A. and H., and the mortgagee regis-
tered the mortgage without notice of the jirior
deed. The mortgagor subsci|Ueiitly sold H. in
portions by three successive sales : Held, in a,
suit by the assignees of the mortgage for a side,
that the deeree should lie for the sale tirst of H.,
an<l that if a sale of part of M. )ir(iduecil enough,
tlii^ portion last j.arted with by the mortgagor
should 1)0 tirst sold. Jliirbr v. l:'i-rli.-i, 17 Chy.
277. •">'. C, allirmcd on appeal, (iwyniie, J.,
diss., ISCiiy. 410.
4. /■'inn/ Onli r fur Snli .
It must apjiear clearly that the master reports
a sale to be beiieticial for infiiiits before a linal
order for sah; will be made. l''.iliriiriU v. lini--
limi, 2 Chy. Chamb. 48; 2 1,. .!. \. S. 302. -
Taylor, Sn-rtlnrij.
(hi moving for an order absoluti' to sell for
def.iiill of |iayiiieiit of the sum found due by the
liiiister, it need not be shewn that any incuili-
bianeer bi'sides the plaintiti' attended at the time
aiipoiiited lor payment of the several inciini-
braiicera. Irrim v. Whilchiinl, 1 Chy. ('hamb. 10.
-■Spragge.
Ill a suit at the instance of mortg.agccs resident
in Scotland against ilefeiidaiits, formerly in Can-
ada, but now ill Muglaiul or elsewhere, it is not
sutliiieiit on a motion for a final on'er for sale for
the ]plaiiititl 's agent to neg.ative payment. The
plaintiti' .dsu must do so. (^uaiv, would not
service of notice on defendants in I'.ngland bo
better. MiKuhii'nw Mrl\i rhiiii , I Chy. Chamb.
42. niake.
In applying for a final order for sale the usual
attidavitof the plaintiti must negative iiossessiou
,ird the receipt of rents and profits. Hiirl'unl v.
I.iimliiinit i\ I Chy. Chaiiib. 275. Spragge.
It is not suflii'ieiit for the plaintiti' to swear
merely that he has not been in iiossession or in
receipt of rents and profits ; he must aho nega-
tive si'.id (lossessiiiii and receiiit by any rme r)a
his behalf. /•'..),/ V. ./.-»..<, I Chy. ^ 'hamb. 2!»l.
Spl';ij,'L;i',
2391
MORTGAGE.
Mortgftge money had hcon onlereil to ))c paid
on the lOtli iJeceiuber. Dofaidt being iiiaile, tlie
usual bank ocrtitiuate was obtaineil on the '20th
December, and on the 10th Febniary following
on applieation watt made for a tinal order for
sale : — Held, that this bank eertilieate was too
old for the court to act niioii. Iliinl v. Sci/iikiui;
1 Cby. ("hamb. Xi'2. — VanKoughnet.
5. Other Caws,
In suits by judgment creditors for the sale of
the debtor's property, the debtor is entitled, like
a mortgagor, to six months to redeem before the
sale takes place. The rule prescribed by the
statute 43 (Jco. III. e. 1, is not ajiplicablo to the
practice of this court. W/illi v. liidsli ,/, 2 < 'hy.
660.
Where a sale has been asked fur by defendant
and granted, and has jiroved ahurtive, the pro-
per course is to lile a ])etition and have tlie ilecree
carried out. Utiudliill v. Jhirraiirn, (] I,. ,|. 181).
-Chy.
Where a suit is brouglit to enforce a sale
again;;* the mortgagor and bis assignee, the order
for payment of any balance due after sucli sale,
must l)e against the mor'^jagor, and not the
assignee Titnil>u/l w >S!/)iniin)i<l.-<, (i Chy. (ila.
If the wife of the morturgor join in the execu-
ticm of the incumbrance, and a sale of the mort-
d
;aged estate is afterwarils ell'ected under a
ilecree of the court made in a cause instituted
ujKui such mortgage, it is not necessary f(ir her to
join in the convcyaiiLU to the purchaser. Mmin
V. •Shiiiiiirs, 1 ("ay. t'liand). 5!). N'anKoughnet.
A mortgagor or bis heirs are not proper parties
to a conveyance of tiie estate to a pureliaser
at .L sale under a dci-n'o of the court, /in.-is v.
Stirh', I Ciiy Cliand.. 1»4. -Si)ragge.
Amotion to disinnse witli ivaynient uf pur-
cb.'ise money (and for a vesting order) in favour
of a purcliiwec under a decree, wlio is also one of
the plaintill's, re(|iiires notice to be served on the
mortgagor where he iiius appeared by solicitor.
MrMiixhr V. Ki iiijinliitll, I ( 'by. ( 'hand). Sl'it.
Mowit.
Where the plaintiff, wlio was tlie nnprtgagee
in fee of lands soM under the decree, ]i;id lieeonie
the purchiiser thereof, an order vesting tlie lands
in the plaintilf as t.uch pniehaser, although
acijuiesced in by the defendants, was refused.
Bowin V. Foj; 1 Chy. Ciiaud). 387.-Mowat.
A bill for sale was filed by a puisne ineuni-
brancer, and prior inetunbraneers ami niortg.igees
■warft made parties in the master's olliee and a
decree on further directions made lor p.iynient
aceonling to priority. The proctieds of a sale
proved insullieient to iiaythe first ineunibraneer. !
An application by iilaintitl' to hiive his costs of j
suit and of sale paiil out of such proceeds, in J
preference to the first ini'undirani'cr, w.as refus<'il
with costs. (Iriniiji v. lUirlur, "J ( liy. ('hand). |
189. — VanKoughnet. >
Under a decnHi for the sale of land or a com-
petent i)avt thereof, the mortgagor nnist see to
the parcelling out of the land directed to i)ii sold,
and if he consider that too much is offered he
should object at the time ipf settling the ailver-
tisenient, which should state fb.it flie iinsoM lots
will be withdrawn from sale when the del
realized, if that course is intended to be ta
The confirmation of a sale may be opposed Ik
the master, and the sale disallowed on groi
which would afford materir' for a motion ti
it aside, ^^'llere the ground is there having 1
an unnecessary number of lots sohl, the
chaser shouhl be notified. Semble, the objec
will not prevail against an innocent purch:
when urged against the confirmation of
report on sale. Ilitt/i/ v. Umhuhnrnt, 3 (
Chand). 344. — Boyd, Muslir.
Where a bill is filed to enforce a sale of n:
gage premises, the court, under the Adminii
tion of Justice Act, will, in addition to the r
formerly given, grant an order for innncd
payment, on which a writ of fieri facias ma
once issue ; ."iid will also order possession t
given to tile nnirtgagee, charging him will
occupation rent. And where a mortgagee
suing at law on the covenant, and in ejectiii
and was also ])rocei'ding on a power of s,il
the mortgage, the court refused to interfer(
complete justice could be done in the com
law. Ancl, in like manner, where an action
been brouglit by a second mortgagee to rce(
a surplus of purchase money, after payniei
the first mortgagee, the court refust^l to rest
such action at the instance of the niortga
although it was sworn that the second mortj
had been obtained by fraud ami undue Mitli c
'J'/ii /iii/tiriii/ /.mill mill /iifi "Inn lit ( '<iiii/iii,>
/i'liilloii, •2-2 Chy. I-.'I.
The mortgagor in a suit for sale having l)cci
insolvent itfter decree, but bef'ire the
aii[iointed for redemption, the plaintiff, wit!
reviving the suit, took out a final order for .s
and the orocecdings for having the sale \
eomph'ted. On the motion of the assigiict
insolvency to make bin' a party, and to seta
the ]iroccediiigs for sale ...■< irregular, and td
the sale, an order was made adding this as;.
as ii party, jiursuant to the lowers of ;inieiiil
conferred by s. iiO if the Administration of
tiee .\it, I.S73, but without staying »he
it did not appear that .any injury won!
from its being .dlowed tr proceed. //i/.>/'
Jii/iiis/iiii, t> I'. I;. '2'u, — Jtlake, in ai)ipc;il
llolmcsted, Jiifirir.
Observ.'itions on the policy of the couit
staying sales under decrees. //<.
XIII. I'noiKKDIMiS IN MoliI'dAiii: Si IT-
Ki.nrrv.
I. Tilkiinj .irriiiiih's.
Where the money advanced on mortga;,'t'
less than the sum mentioned as the lunisiiki
money, the nuirtgagor is at liberty, in t,i
the account in the master's ofliee, to >lii\i
tnie sum advanced, to rediiet; Ins liahility
though he has not appcari-d to or answi iv
bill, lie cannot, howevir, shew that tli
tract was usurious. /'(/<« v. I.iirkin""! i
r)47.
I'ndcr the head of "just allow.uuTs, "
niiwter may on taking the account of siili!)ii|i
interest, anil taxing snb,sei|Ucnt costs mi ;i
or subsecjuent foreclosure, allow a sinii l«i'i
insuianee since the i.isf foreclosure ami iiite
2302
i<. when the tW>t i^
om Bahi * en
m vteHr^ f..r iv luotu.u to s. t
I, Mif>'i'-
,e c.venaut an. m »- ^^ ^__
:!,I;j,I;m ^'-""' '"■■■" ^'
,.U.n,i.t...u th -u t.t , ^^^^ ^^^^^^
I'V-''"^; h virtue sal. w.r.
. thcnu-tumof the -i .^^^^^j^
'^^^^"^'TlVlv g"Sau.Ho.uy
, lor «iU'. -'-V f „,, tliix assi-iK.
,iv Uuvt iu.yn.j"'>^ //,„;,;„< \
t^.l:S:'^ aH..> f.
r .. .>f till- coMVt a!* I"
2393
MORTGAGE.
2394
I,. v'.'Ai";/ •■''■'■'"""'■''•
1 .. U-mci'.l .mm(>rti;a«o»as
luuunout.u.u. .u.t>^^^^^^
luotarro^uvat. -^- ,,^,, ,
(".'•^' *"""■ : 'v *• ' ' '''^
Vaxin«M;'-> ;\:',„,,,,a>aM
under a prt)vi8i()n in the mortgage, although the
(lecree siuii'ly directed him on each successive
foreclosure to compute suhscijueut interest and
tax sulmeciuent costs. liilhiiia- v. Vtilriitt, ',\
Chy. (i4S.
A party ii: possession of laud under an
.agreement in the nature of a Welch mortgage
having refused to give any statement of rents re-
ceived or information .as to the amount due on
the agreement, a hill was tiled hy the mortgagor
for an account. Although on taking the account
a halance was found still due to defendant, the
court ordered him to pay the ccwts. Moirii'ni v.
ycfiiis, 5 Chy. 577.
A dohtor executed a mortgage in favour of his
creditor, reciting that he was indehted in a sum
uiinied, upon which a suit to foreclose was suh-
sciiuently instituted. The master on a reference
to take an account of what was due, rei|nired
the production of the .accounts on the foot of
whicli the mortgage dcht was created, and tlie
usual four-day order had liecii issui'd fur noii-
protluction : — Held, on a motion to set this ordir
iiside, that the parties were prima facie hound
liy the amount state<l in the mortgage as the true
ileht, and that the master, in the alisi'uce of
evidence to impeach this, could not go lieliind it.
/'.///./(•/(• v. /V;t//. 5 Chy. MM.
Where the usual allidavit proving a mortgage
(U'ht is made, the onus of reducing the amount
lies upon the o[)))iisite party. Warrin v. 'I'lij/lnr,
AVv.< v. Ttu/Zor, i) Chy. ."i!t.
Where a reference is directed to take an ;ic-
umuit on a mortgage, the parties may shew the
vwd olijeet for whicli it was niaile, if imt ap]ia-
luiit on its face ; and when tlie liill has lieen
taken pro confesso the master nni.-it rcijuire the
iiiDrtgagee to shew how the money secured was
ailviuued ; and semhle, tiiut .such a coiirsi' wouhl
W' (lesir.il)lc in all > juses. Sli rliii'i v. ItUni, !(
Chy. -MX
Two years after a mortgage had lieen in part
[laiil, '.he mortgagoi' applied to the mortgagee to
rv-l)iirrow tln^ money, agreeing verhally to return
the receipts for the money j>aid, so that there
>hi)iild not remain any evidence of payment ;
ami that tile amount so ri^-lxuniwed should lie
miisideied a.s of the original charge created hy
tliu ::>ortgage. .Some, Imt not ;dl, of the re-
iiilits wen; retui-ned to the mortgagee, and the
lunacy readvanceil liy nini up m the terms pro-
l«i!R(l. The nia.ster, in taking the aieounts cli-
ited liy the decree, :'.llowed ll'e mortgagee
' Mil amount of the mortgage : Held, correct,
.Mi'l that the mortgagi'i was estopped from
, |iriiviiig the payment oi any portion of theoiigi-
iwl Slim aiUanced. (X'ar.Koughnet, (', diiii.)
1 1»://;- V. iiiii'hn^i, i;; Chy. ;{oi.
A .lecree for sale was directed at the
'Uftty of the mortgagor. In taking tin
I It ajiinared that the mortgaj^ei'
Irilpricir incuniliraiici's, and th
suit of a
a counts
oir seve-
allowed
lail |iai<
mastc
liim credit lor the sums so paid, although no <li
m;tiim to that etl'ect w.is given hy the decree,
iiiiainieal, hy the surety, the master's linding in
that icsiK it was allirmed. '/'iil<r v. St. Julni,
iitfliy. S.-).
By ail agreement entered into l>y tin' lender,
imrnwcr, and surety, that a judgment .against
thi siiiclv should "stand as addition i| or eoll.i-
teral security for the payment of such mortgngea
to pay and make up any deficiency that might
arise ur exist sliouM it at any time hecome neces-
.sary to sell the said farms," &e. ; — Held, that the
surety was entitleil to have an account taken,
the property sold, and credit given on his judg-
ment for the amount realized, hefore he etndd he
called upon to Jiay anything ; and that the
surety was not hound in the first instance to p.ay
otr the creditor and take an assignment of thti
mortgages for the purpose of proceeding against
his principal, tlu' mortgagor. //'.
To shew the halance due, the i)ai'ty proving the
claim, in addition to swearing to the halance,
produced certain hooks, and made atlidavit that
liy these hooks the halance claimed on the mort-
gage could he disc<ivered. Neither party asked
liiin any c|Uestions in reference to or to explain
them ; and the master stated that from the
Inioks he could not undcrstanil the account :—
Held, that the oath of the claimaiit standing un-
iiiipeached, though not supported liy the i)artial
statement furnished hy him, hut which he of-
feied to make coiiiiilete, if reiiuii'ed, from tho
I ks, the master should have acted on it, an<l
allowed the claim. Ilitiifuvk v. Mdiiliioii, 10
Chy. 4.S:i.
Whcit.' the master had taken the account
against the mortgagee with rests, and on apiieal,
it appi'ared that at the ilatc of the mortgage a
halance wius due to the mortgagor, and that the
iiiortgagia! went into possession, jiart of the ar-
rangement lieiiig that he should apjily the rents,
itc, to the paying oil' of two prior mortgages,
i liiit it was not shewn that they were due when
I the moneys were received, so that the holder of
j the incumliiances could have liccn compelled to
; acce]it payniiiit, tin' court, if desired hy the
mortgagee, ordercil a referiiic'e hack to the inas-
' ter to Jisccrt.iin this f.ut. lt'i//('ii/,/.s' v. IIiiiiii, 10
jChy. iVi.T
Where a report was rel'crrcil liac-k at the in-
st.ance of defendant, a mortgagee, to ascertain a
particular fact, and the master, without heing
[ dirccteil so to do, called iipiHi dcfcmlant for an
allidavit shewing w hat nioiuys he h.ad received,
I v\;c. ; and <lclcnilaiit tiled Ins own atlidnvit shew-
ing that the moneys with whii'h he was charge-
ahle had lieen received liy him ;it dates siihsc-
] (|iiiiit to what the master h;id previously found
' liy his report, ,nid which he; varied accordingly :
llelil, that the master w.is wioiii; in thus |iro-
ceeding. / 'i.
Seinlile, (per \',inK lUghnct, ('.,) that the ac-
count cannot lie laki'ii after the death of the
party honnd to ]iay. lUit the jioint heing one
of considerahle iinport.ince to suitors, it was
sug;_'e;v; d that the opinion cif the full court
should Ik taken upon it. ilnllT'iinh v. Ann-
ifr'iij, I ( hy. ( 'hamh. S;i.
( hi taking the aciount in foreclosure suits no
more can he found due tli.in the amount claimed
hy the eiidorscnnMit on the copy of the hill
serveil. //.!//'' V. ll';/<o», I (hy. ('hamh. •.'.VS.
Spraggc.
The only eviileiice hefore the iiia.ster, hesides
what was used at the 'v.iiring, was tlu; atlidavit
of the personal representative of the mortgagee,
which statccl th.'.t he hclieved the whole amount
to ln' due. An apiieal from the nnister's reiMirt
(inding (he wlinlc .iniomtt due was allowed.
2395
MORTGAGE.
• ■! i
Senible, that the niiiiH of proof iindur such a rc-
ferunuc rests ujm)!! the huhler of tlie niortgnge.
ElViott V. Hiinlii; 15 C'hy. (J-IO.
Wlicre a judgment ereilitor tiled a liill iiii-
peaeliilig a mortgage created liy the delitor in
favour of liis Imitlier, a j)artner iii ImsiiiesH, an<l
after evidence the usual decree was made :—-
Held, that the production of tlie ordinary affi-
davit liy the holder of tlie mortgage Htating the
amount <lue, was HutKeient priniA facie evidence,
08 in otlier eases ; and that, if the party entitled
to redeem desired to reduce the amount claimed,
it rested on him to adduce evidence for that
purpose. Kl/io/l v. lliinti'i; U4 t'hy. 430.
Wlien a defendant desires to prevent the plain-
tiflF from recovering interest for a longer period
than six years, he nnis^ set up the defence of the
Statute of Limitations ; merely tiling the usual
disputing note is not sutlicient for this purpose.
)i'rii//it V. Mitnjd'i, 24 C'hy. 457. Reversed on
appeal, KJth Jui. ;, 1877.
See MvMaxtn- v. Ihrtoi; S L. .1. N. S. -284,
p. 233:i.
'1. Orilif fur /'in/iiii'itl.
An order granted, clianging jilace for i)aying
mortgage money. JoitrHV. liailiii, 1 Ciiy. 35.'{.
Wliere mortgage money was ordered to he
paiil ii>to an agency of t)ie Hank of Tpper Canada,
and before! tlie day appointed tlie agency was
closed :- Held, on a iiiotion to substitute anotiier
bank, that a new ila.v for payment mu.it l>e ti.xed,
and the orilcr served. Kimj v. ('iiiiiinr, I Cliy.
(.'iiaiiil). '-'74. N'anKoughnct.
Where the nuwter's rejiort, directing the pay-
ment on ii day being six iiionths from the ifate,
is not dated, and tlie di'cice gives >iix calendar
months, a new day must be appointed for p.'iy-
uieiit. Scii/I V. MrKdiirii, I < 'hy. Chamli. lS(i.
— N'aiiKouglinet.
Service of an order ap|)ointiiig ,i new day for
payment will be dispensed with where tlie mort-
gagor is an absconding defendant, against whom
the ))ill hius liecii taken pro eonfesso after service
liy pulilication. Kllirnni/ \. Sniil, I Chy. ( 'li;itnb.
1!H). VaiiKonghnet.
On an application im an order appointing a
new day for payment, it was asked tiiat service
of tiic order siiimld be dispensed with, ilefendant
l>eing out (if the juri.sdietion ; but the court
declini^d to tnai an attldavit of tiic phiintitf ;us
evidence of the fact, and directed tlie order to
lie served if posiible. Ai/mni v. Kninr, 1 Chy.
Chamli. "iliO. \'anKoughnet.
Time enlarged forpaymentof miirtgage money,
on allidavit tliat detendant had sold the mort-
gaged iiremiscH for CiW, the mortgage money
being t''25<), anil that he expected to receive p.iy-
ment in full in two or three months. Fun/ v.
.Stn/ilr^, 1 (). S. 1>8'-'. - < 'hy.
A motion to enlarge the time appointed for
payment of mortgage money must be made in
chambers. Amin, 4 Chy. til.
On the motion being made there, on an allida-
vit of defendants' solicitor, stating his belief that
defendants had exerted themselves, and were
Htill endeavouring to raiHC tlic money, and that
the property waa worth much more than
debt, the motion was refused with costs. //
In opposing such a motion the mortgagee sm
that ill consei|ueiice of non-paj'inent he had li
obliged to raise money to meet his liabilities
rate much beyond that payable under the iin
gage. ( )n granting the extension, the mortgii
was reiiuired to jiuy such a sum as would en
the interest payalile by the mortgagee. J/oir
v. Mdciira, 1 Chy. Clianib. 27. — Spragge.
Where through default of payment of hk
gage the mortgagee had to raise money by st
rity on the land, and great delay took idace,
seeretjiry refused to set aside a tiiial order,
extend the time for payment. WitildiU v. .
Colt, 2 Chy. Chamb. 58.— Taylor, Sn-retdri/.
A judge in chamljers, though not as a inai
of right, extended the time for payment of in
gage money where the money was for pure!
money and the vendor had made a prior ni
gage on the property, which he had not paid
aecording to his covenant for title, anil it
peared that the existence of the tirst luoitj;
prevented the plaintilt' from raising monev
v., •-> cTiy. Ciiai
Xi. .Mowat.
l>ay otl" the second. </. v.
Where the miuster a]i|iointeil a time for all
siibsci|iieiit incumbrancers who proved bcl
him to redeem the ]ilaiiititt°, one of whom at
time appointed paid the amount and took
assignment: Held, that the incumbraiK
who could not redeem were entitled t.p tli
montlis' further time before the co defeml
could obtain a !i::.".l f;!rv'.'!:.niire against tin
.(/■'/,(;/// V. H"'.M/;i, 2 «:hy. Chani!>. 70. V
Koughnet. See also iS'. (,'., I Chy. Chamb. 'A
The time f ir payment was extended wluii
was shewn that defendant Wius hampered
liiiuleied i. I .selling or raising money on the lai
in consei|ii 'lice of an ivdvertisenient signed
circulated ly the ]ilaintiir's sijlicitors ; ami
motiiiii wa.'^ granted without costs to the |i|J
till'. <li/iii iiir v. Myi !•■■<, 2 Chy. Chamb. I7:[
Taylor, Siciitunj.
When the day to pay money reporteij |
on a niirtgage was pa.st, the court all.iwiii
niio'tgagor six months further time to redctiii
coiiiUtion of paying the costs of the niotiiiii.l
iiitep'st oil the whole sum found due, it \\\\\
iiig that the security was good, and the ii|
gagor in a fair w.iy to raise money. ,SV,r
O'ltrilhii, 2 Chy. ('hanib. 270. Tayl.n-, M
Six montlis fiiitlicr time w;vs given lor p.iyil
nil an apiilieation made the day iH'fore tlieiii{|
wjus clue, on iiaynient of interest on iiriiir
and interest due, and the costs of the ,'i|i{i|
tioii, when it »v;ui shewn that the jiiopeity hI
be greatly enhanced in value in the incaiitiiiil
the construction of a contemjilated niilf
i'lniii'riiii V. I 'mill run, 2 I'hy. Chamb. ,'17">.
lor, Sirrttiiry.
Where delay was shewn on the iiiiirti,'ii|
part, but he shewed a reasonable |ir(ispi.J
lieiiig able to pay in a few months the tiimi
extended, the principal and interest were iiin|
to be eapitali/ed, and interest on the wlidlf
.and the costs of the ap|ilication to lie |iai|
a week, ('ulinnc v. Diirir, 2 Chy. Cliainli
'I'aylor, Sirri'liin/.
■H^BW
aMdit'busaCi.i'i; 'x ^Jfut.. ".
239G
rth much more th.u the
refusea with co8t8. /'<•
,„ti..nthemort«aBeeBW...v
^"""•n"ut ial'iliticHuta
lt';:';aScmlrtho.uovt.
111. ..\teu«i""> t"^ "" , *> f. „
|,vthcin..rtgii«oe- f/""""
a grent .Ulay ^ .^_,,^
,«,taBue.UmU , ,,.
• *„.i a time for ''^ *1"^
"^i!l '£^. i"-t ana t....k tlu:
)f\ that tlio iiHUinl.r.M,Lr,
■ *'";%.!"!;'!.«Iv"aga>n.t Ih.n.
i; Ills" '>• * •' ■'
1. ,u .•yti'Utll'<l wi>*l'' '^
\ .Icfc.ulantN^^'''^ \j„^,,^,^,l>,
.;>titV'8 Folioitova ; m.a tlu
r'> \.^ ».aV ""'"^•y 'q""'^'"! ')!"
,„,ity Nva« .«'"7' ;,^;. ,sv,u/ V.
'' •,. I. •>70 laylor, >"i'
ly. l'haiiit>. -I"- J
r .1 ..H,>u>wasgiviMift.r\W"''"
I,utl.t..•t..u.J^^'^^,.,,.^,t,,..„^..uy
h"'''llo r'.(th^n.vi7,.
•j:j;t7
MlJU'mACiR
;{!)«
Tliu mortgagee iiwil not ivuiain at tlio iilacu
ai)[ioiiite(l liy tliu niaator's ri'iiort (hiring all the
tinii' hniitf)! for payment of tlit' mortgago iinpiicy ;
liis attunil.inc'f hk early as to allow a rcaHonalilc
time for jiayniiMit hofore the uxpiratiim of the
hour nametl will sulliii'. SmiHihi-Mtit v. (.'iim/ihi,
•2 Cliy. 4;{(i.
Where tlie day appointed hy the report for
l)aynient of the fund due fell on a Sunday, the
court refnsuil a liiuil order of forecloniire. l/nl-
ciiiiih V. I.fiirli, W ( 'hy. 44!t.
Where portions of an estate undei- mortgage
•ire conveyed away liy the mortgagor, one day
for payment of the amount will lie given to all
the persons interested in tlu; ei|uity of redemp-
tion, llitl V. /■'iii'si/ili, 7 Chy- •*•'!•
Aftiv the advertisennnit of sale, it wasdis-
loveretl that tlie report had omitteil to ineludi'
two items of interest. Msteil, \'. ('., held there
\\M no necessity for .■i]ppointing a new day for
payment, ami referred it to the masti'r to taki' a
Iresh account of plaintill's claim, ami to amend
his report ; and leave was given to tix a new up-
set price and to postpone the sale if necessary.
lliMii/ v. Gnt/iiiiii, !) li. .1. (S'J. Chy. ('hand).
Ksten.
H. /)!xr/itiiiii r.
A person interested in an ci|uity of redi^iiiiition
iiifiiruied the mortgagee liefort^ suit that he was
willing to Tvlease to him his interest in the pro-
in'rty. The nujrtgagi'c, notwithstauding, made
liiin a defendant to a hill for salt: of tlie molt
jjiij^eil premises, and he liled an answer setting
tdrtll his willingness to releiuse, ami that he had
liufciiv suit inforiiied the plaintill'of such williiig-
iuss : Held, that he was eiitith'il to costs.
Wiirinij v. Jfiil'hs, 12 Chy. -J-JT.
Where a ilefciidaiit. having an interest in the
[iriiperty in (llu^stioll in a foreclosure suit at the
time of the tiling of the hill, ])uts in a disclaimer,
lie will not he entitled to any costs, lit rr'n v.
Mti'-L-I'iii, 1 (.'hy. Chamh. :C»I. Mowat. Sec //nil
wl'dii; t) Chy. 'mX
Til a hill of foreclosure, an nssignee in iiisol-
vracy tiled an answer and dis(^laimer, adiuittiiig
till' statements of the hill, and alleging that he
WIS willing, and otl'ered hefore heing served with
I tlie hill, to relea.se his right to the property, hut
1 iiiit alleging that he had made the otl'er to the
I lilaiiitiH, or to whom he did make it: — Held,
I that he was not entitled to costs, Drnn/ v.
i(/.Vm7, 15 Chy. 523.
llllK »■"">
jv conveiiii.."- ■
K'hy.Chandi. .<-■'■ '•'>
"i. /'rtiflii-i,
the iuort};at;"r*
4. /'(rirnr.
Ill a suit for sale of mortgaged property, an
lincHmhraucer had ])roved a claim. The plaintitt'
lltliu iiiiirtgagee), who hail hcen paid in full,
Ihiviiij^ (lied : - Hehl, on an apjilication hy such
Iwliaeinieut incumhrancer for the usual ovder for
|tblemi)tiiiii and foreclosure after an ahortive sale,
■that it was unneci.'ssary to revive the suit.
I('»i/.<.irtv. .s7/'(7"7/, I Chy- Chaiiih. "Jlti. Spragge.
Whore a sole plaintilf in a foreclosure suit dies
lifter ilecree, his devisee is entitled, on pra'cipe,
))tbe ciininiou order to ixivive. O'lihlcn v. Allnn,
fUliy. Clminh. 33b'.— Mowat.
Where a mortgage was created hy hushand
and wife u]ion lands of the wife, and the mort-
gagee, together with the hushand, joined in a
conveyance of all their interests to a purchaser,
the court in a foreclosiin? suit refused an imme-
diate reference under the orders of IH.'iM, and
directed the cause to he hrought to a hearing in
the regular way. Wat/it v. /{,irln„, T) Cliy. 3;V2.
In proceeding under the orders of Kehruary,
IS.'tii, to maki^ incuinhrancers parties in the
cause the plaiiitilV must serve the ineiimhrancers
; with otlic(' ci.picM of the decree, duly stamped.
I /;'lli-ill V. //il/iii;//, /■'ri/i,i,i V. I /till, X, I Chy.
j Chamh. (i. listen, Spragge.
[ It is not necess.ary that the hill sliouhl he
taken pro conl'i'sso against a hushand hefore an
order to answer separately can he ohtained
J ag.iinst his wife ; it is sulliciciit that the time for
' the joint answer shall have chipsed. Wiillcii- v.
j '/'.'//'/•, I Chy. Chaiiih. iS'.t. VauKoughiiet.
Ina foreclosure suit to which a married woman
I is a defendant, it is not nei'cssary that the hill ho
taken ino coiifcs.so against either hushand or
wife; the proper practice is, when the time for
answering hy liotli has elapsed, to apply in chani-
hers for a direction to dr.iw up the decree on
pr.ecipe. / /).
llushand and wife heing defendants to a suit
of foreclosure in respect of pidjierty helonging
to tlu^ wife, the husliand put in an answer alone,
and the plaintitl moved to take the answer otl'
tli(^ liles for irregularity, and to taki; the hill pro
coiift'.sso against the hushand, which was refused
with costs. /■:ii;„li V. /Iiiiilii; 1 Chy, (liamh.
loS. Spragge.
The fact that a married woman is a defendant
to a foreclosure suit (the time foi her separate
answer having ela]ised) does not render it neces-
sary to ajifily to a judge for a direction to the
registrar to draw ui) the decree on prieciiie, as
the registrar has power to do so without any
direction. A/nrji, v. .]/i'I)iiii'iiill, I Chy. ('liamh.
2')!*. VaiiKoughnct.
All order to take a hill pro coiifesao against a
married woman is now uiineeessary. //nrr v.
Siiiiirl, 1 Chy. Chanili. .'<Ui. .Mowat.
(!. |)., and II. 1>., his wife, incunihraneers,
were made parties in the liia.ster's otlice, and not
appearing mi the day named in notice .\. : Held,
hy the master, that an order in chamliers must
lie ohtained, giving the wifi^ liherty to (Mime in
and )irove her claims separate and apart from her
hushand. The order in chamhei's was afterwards
ohtained. Service of a fresh notice A. dispensed
with. Mnrsiiiill V. Wiilil.r, 3 1-. .1. N. S. 24.—
Taylor, Sirntnrn.
In a foreclosure suit a iiuestion wxs raised as
: to whether the ei|iiity of redemption in the prin-
! cipal iiortion of the mortgaged premises was in
i defeiiilaiits, against whom the hill had heeu taken
pro confesso, and who did not appear at the
hearing, or in the other d(^feiidaiit.s, some of
whom W(^re infants. The court refused to decide
this at the hearing, at the instance of the defen-
dants who appeared, /'nhiiisnn v. Dnlixon, 11
(,;hy. 357.
Under the orders of Fehruary, 1858, relative
to foreeloaure suits, when the hill is taken pro
2:i\K)
Moirrt.'ACiK.
•_'i()
1'
Cllllfl'HHO tl^tlillMt tllO llllil't^llglll', it IH not IICd'H
8nry to hui'Vu him uitli tlic iicitici' xvt fortli in
Hchoiliilc- M. toHiiid onli'iH. /tulu/x. Wdiidliiiili/f,
5 I.. .). (;;. <:iiy- Miiniiii v. 'M<I.JIini, /!>.'
A iiiiii't/^'iigci' having lihil ii liill to I'diccliisc
iigttiiiNt two I'iviil (.'hiiiiiiiiitH lit' till' ('i|iiity nl'
reilcniptiiin, tho tniiit ilinctt'il tht^ nsiml rcilrnip-
tioli hy, mill oi)nv(!y:vni'o to, thu {icrNnn iiiiiiia
fnoie eiititU'tl to tlic i'i|iiity, witli a ri>,'ht ti> tlio
othiT I'liiiniiiiit, lit liny tinii: liffoic tht' ihiy
aii]iointi>il for |>!iynifnt, to mIicw liinisilf to Ik-
t'lititlu'il. j'liiiisii/y. Tliiiiii/isi, II, Hi'hy, H7-.
After li foroc'hmuro suit hml liouii ui ihhuu fur
inoretliiin tlnvc yours, hut no hciirin^'or cxiiniinii
tion of witnussrs hml tiikiii |>la<:i', tho .Inilgi' in
ChiinihcrM iillowcil tin' pci'Miiiial n'lHi'Htntiitivi'of
a ik'CfiiHi'il piirty to tin' I'liusi', ulm hml imr
t'hiiMcil from the nuirt^^ii^or, ami against whom
the liill hail livuii taken pro confi'sso, to (iiit in
an anHwi'r Hctting up what in tlu' o]iinion of
tlu! learned judge was a meritorious defenee.
Aiiiiiii/iiiiiii.i, I'JChy. "(I.
(^uiere, whether this was not a matter of dis-
cretion for the .Imlge, and vvas therefore not the
subjeet of appeal. Hi.
The ]>laintitrs tiled a hill of foreelosure. I)efen-
dants set up that they were alisolute owners liy
virtue of a tax sale and the proeeedings in a lore-
closure suit. ISoth iKfenees failed ; and the
defendants therefore claiming at the liar that the
plaintill's should ledeem the |iriiir mortgage, the
cmirt granted a refereuee in sueh ternisas woidd
enalile the defendants to estalilish that elaim, if
Well founded, in the master's otiiee. Jnms v.
Till liiiiik of ('/,/„ r Viiimilii, IM Chy. •J(»l.
Where the mortgagor is tlu' only defendant,
and an immediate decree is taken against him,
by consent, without any refereiiee or day of pay-
ment, a reference cannot ln^ directed as to other
incund>raneei'H not named in the bill. Tdi/lmv.
Wiirit, 13 Chy. 5!K).
After decree in a foreclosure suit, defendant
ai)[>lied for leave to answer, which was ordered on
Ins paying tlie costs, and answering in two
weeks, in default the decree to remain in force.
Ko action having been taken under this order
for several weeks, an order to discharge it
with costs was made, altiiough the order already
drawn up declared that under the eircunistances
which had oecured the decree should remain in
force. Wiiriiiiiixy. Aikiiixiiii, M 'hy. Chandi. 'M.
-Blake.
Oh proceeding in the master's ollice, upon a
reference as to ineinnbrances in foreclosure eases,
it is not necessary to search in the ollice of any
ileputy-registrar of the court to ascertain whether
bills have been tiled upon registered judgments,
na such bills only pri'serve tlie rights of the judg-
ment creditors in the particular suits in which
they are tiled. (.Iniiinii r v . II raiinjcr, I Chy.
Chanib. 241. -Spraggc.
Where the account is changed in a foreclosure
suit after the master's report, and a notice of
credit is given under the order of 'JKth .lune,
].S(il, such notice slioidd be given liefort^ theday
appointed for the payment. Kiiiilliii<ii r v. lid i hi r,
1 Chy. Chand). 'Jo8. .Spragge.
Where a judgment creditor in a mortgage
suit proved for too iimch, and was paid in full,
the mortgagor not appearing in the uuister's
ollice, an application some months after to ha\
the amount refunded was allowed, with cost
liiiiik III' liiUiili ' Suiili A III! liill V. Mihiiinili
'2 Chy. Chiimb. HH. Msten.
.As a general rule notice of the iiroceedings j
the master's otliie should lie servi'd upon a mm
gagor against whom the bill has been taken pi
eonfesso, w hcnever the plaintill' jiroves a elai
in addition to that alleged in his bill, M
i'liiiiiiik V. MH'iinnivk, Ct I'. It. '208. -liolmestei
Hij'iik.
On an application by the executor of a nmr
gagee, for the infant heir of a nmrtgagee to rm
vey after the executor has obtained a tinal onli
for foreclosure, the petition and allidavit shun
be entitled, not in the cause, but in the inatti
of the infant. A'- //-.'A/.s I Chy. -Jsr..
Where a mortgagee dies intestate, leaving :i
infant heir, .nfter a decree for foreclosure, In
before the linal order, and his exiH'iitor revivi
the suit and olitains siU'h order, and the nun
gage debt eipials or exeecils the vabu; of tl
mortgaged premises, the infant heir is a piisc
seised upnii trust, m ithin the meaning of tl
Ki.glish StatutiM I (ieo. I\'., and I Will. I \'
ch. 10 SIC. t'l, and nuiy In' onlcred on ]ietiti<ii
w itiiout suit, to convey the estate to the excri
tor, or to a purchaser from the executor. I
such a case, however, the lourt will not ni.ik
the order, indess it appear that the applicatin
of the estate in (jUestiou is necessary for tli
satisfaction of the debts of the interstate ; and
refereuee as to this will be directed. Hi.
Afterpayment of what is due upon aiiiiiil
gage payable by instalments, pursuant to tii
orders of IH.'i.'t, it is irregular to take any fuitlic
proi'.«'iiling in tin? cause until another instahiuii
falls due. ('nrrnll \. Iliiiikiii!<, -X i.'\\y. A'M.
'{'he solicitor of a mortgagee in a suit of Inn
closure, after a decree of ab.solute foreilusiii
purehaHcd the mortgagor's interest in tlie [nin
ises. The decree so pronounced was subsei)iiiiitj
set aside, and a decree nisi directed to be iIimmI
up directing, inter alia, a sale of the mint^'iiJ
premises, and that all jinlgment creditors sliniil
1)0 serveii w ith the decree and made partits [
the suit. Xotwithstanding this, however, til
solicitor, who was also judgment creditor uI tf
mortgagee, proceeded upon his juilgliieiit ;ii
was about to sell the mortgage premises uiil
execution. The court, upon a motion innl.
the cause, restrained the solicitor from innai
ing with his execution, and ordered him tn
the costs of the application, (Ivoiliriu v.
liiiiii.i, .5 Chy. 178.
In a suit by a prior against a mesne iiiciil
braucer, on the argument of the lanse,
consent, an attidavit was read which stateil
agreement on the part of the prior incuiiilii;iiic|
to be postponed to the latter; when tlie tnif
gave liberty to the iilaiiititt' to eross-exaniil
the deponent upon statements containeij in i|
allidavit, which jiermi.ssion not being acteil iiii
by the plaintill', his bill was dismis.sed with c
//;//,/■ V. Sliii-/, 10 Chy. l':».
When prowled ings are taken against aiiiiiisj
dirfendant, a decree cannot \h: obtaineil mi |
cipe. McMWInii'l \. 7'/(oh((m, 14 Chy. L'-lil,
In mortgage suits, where the bill has imtl
personally served, it is not the practice tu mil
: »a*~^«<Mil£«U.<JtUV.^Ml-J.-i^.
itou ■ 2401
M n-n V. MrDonohl,
. „f th- ,.nK,ou.liu«s in
', Lo1.Uinc.lati.ua ova.
i;..x intestate, leaving au
^;i ::;'...• f...vcl-.snn.,>mt
■'■• ..rlov an.l tlun.ort
l.^": .: liu-valneoftl.
^Uu. infant houMs My-
vitl.iu tin. nu'an.n^ o, tU,
, , 1 V ano ' '' '
,;;':.'i'::,.i.na omHtii..,,,
^ . ,.. .Stat.' to till' fxtvu
r'ro"HwiUn,.n,A..
is will I'e 'lirectcd. /''•
.,f what is '1"^' "l""' Y't
r;^^s."t^:v^^ '"
l\-::;-s:xri::n.:ii::
br;:is:^iulSto>;an«,,
,!'urior against i, ^m^^^^^ '^^^^^^^
r^'t^'tr^rii^Ji--"''^^"-'^'
K-i.artoftl.Ll ^,^,,^,„„„
to the. lattu , „„„„
Es;ia;;,:;;-s»..
fer;:™;;;'''.-^ '■">■■■*,.,
1 f 1... hill has not '**" I
M()RTUA(JK.
240:
for allowani'f of servifi!. An order pro confuHso him, tlioii^'h an injniu'tion may not liave huen
intiHt he taken ont, and the eauHe set down and (irayed for in tliu hill, ('nirllini v. Mrllnii'i, 't
lieard pro eonfes.sn. The deer<!e in hucIi caHes is | I,. .1. N'J. -Chy.
MOW made in eonrt, not upoii iiriecipe. Ulnxs . . r i ■ i ■ . .
V. .»/oo;v, •.' Chy. ('hand.. 3-J7.-T«yh.r, .SVrn- ^ •'^''"'y '•'•>^^'; "■^'"« ^»l>|e<'t to a prior n.ort-
^ij^.j. 'J rf ' j Kaye eaniiot call tht: nminion morti;aj;or, if he
''■ I has the e.|uity of redemption, to i;i\e evidenee
A mortgagor who desires to stay vn action lus to the amount ilne npnn the prior nmrtijaj/e.
hrouj.;ht against him hy the mortgaj^ e, caniK.t ^ Wiirrin w Tki/Iih; A'i/.i.i v. 'J'tii/foi; '.) i'hy. r.!>.
insist on the mortgagee's t;i.\ing hi." costs and
staying the suit meanwhile, on the proniisi; of
the mortgagor to [lay the amount when ta.xed.
Wlien^ a tender of <lelit and interest hail heen
niadt! to a mortgagee, pending actions on the
nii.rtgage, and the mortgagee's milicitor sent to
till' mortgagor's Hnlititnr his liillsof costs ineurrcd
in the suits, .iiid the latter coiisiilcred thi'iii ton
large, hut otl'ered to pay any aiiionnt which the
It in no defence to a hill of foreclosure that
the mortgage was given to s,eure the [.urchase
money of the iiuutgagcd property, and that to
part of it the vendor (now the niiu'tgagee) had
no title, ('iirhiiiiiir w llnllurk, 12 Chy. \'M.
In a suit for foredoHure ui.cn a mortgage fur
]>urcha.-4i' money, damages or loss sustained hy
failure (if title, or hy iiicuiiiliranees m- ili.irges on
.Mabtcr should tax, it was held that the mort- the property -iiild, cannot, under the covenants
gage(^ was entitled, iis a matter of strict right, for title, form the sulijcctof set oll'to the amount
to go on with his actions notwithstanding such secured hy the ninrtgage, hehue the amount is
otl'er. Xiniii y. Ilnnliv, 17 (.'hy. W\. i iweertiincil l«v action or otherwise. Ihiiiiiltiiii
... •,•.,! * • ^'^- /'""'''".7, l:n'hy. 484.
A suit was institutcil uiioii a mortgage against
the a.ssigiiee in iiis,,lvciicy of the mortgagor, ami *'^ '"ort^j'agor, who has in tho course of a fore-
ou i.rocec.ling in the master's ollicc, it ajipcarcd elosure suit duly redeemed til.' property, is not
that there wcr.' creditors of the iiiortg;i«or «ho ohiiged to .accept a simple disrimrgc ot the mort-
ha.l executions in the h.inds of the sheritl' at the ^^'f' '"''^ 'i''.'^' "'^ '"« option, have a vesting
date of the assigiinietit in insolvency :- Held, order ot the property. KIIU v. EUU, I Chy.
(.11 a|.peal from the ruling (.f the master, tli.at it <'''■•>'"''• -•>"•- ^I'ragge.
was pi'oi.cr to add such creditors as parties in
his ollicc. Ciiiiddii l.iniil'tl Cndit ('a. v. .!/<•-
Airisl.r, '2\ Chy. ".<t.S.
I'lider a note disputing the anionnt of the
]ilaiiititl "s claim tiled in a mortgage suit i|Ucsti(.iis
n» to the c(.rrtx'tiicss of the account alone can he
filtered into, i'tilltniiirli v. rri/ii/nir/, {) I'. 1!.
2S. Chy.Chaml.. Hohiicsted, /.\7", w.--Hlake.
Sec Wriijlil V. Mniyiiii, 24('hy. 4.")7.
.\inoti(.n to C(Uiimit defendant or take the hill
Jim coiifcsso, for noli attendance of defendant for
ixaiiiiuatioii ]inrsiiaiit to a sjiccial oiclcr, was
refused, where tile oldir had not heen prcviouslv
s,;rvnl. Mi-.\nll„ V. .M,-.\,-;il„, I2 I,. .1. N. S.
I'.H). Chy. Chanih. Ilolmested, Itrf'<ni'.
Where a niortga
hound, at his own
gagor with such evidence of the loss
mortgagor may re(|uire to priMlucc in futu
■e loses the mortgag'.
xi.eiise, to furnish tin
' he is
mort-
is the
cdc.d
nigs res|iectiiig the property ; and with .in in-
demnity against any dcmniid of thinl persons,
hy deposit of the deed or otherwise, to the
iiKuicv or any jiirt thereof. .\/r/>nii,il,l v. /Ihin ,
loCliy. 7-J. '
A suit of foreclosure or for the s.ile of mort-
gaged premises in default of payment is not a
suit for tlii^ recovery of land, hut is a pidcce(C
iiig for a recovery of money due 11(1011 l.iiid. \i itliin
s.'-_'4of C. S. U. C. c. SS. Wlierc, tlicreloiH' :i
mortgagor wn.te to the niortg.igcc in answer to
ii dcinaiid for payment, "I will coiiiply with
A hill to enforce payment (.f a mortgage .after .Vour lejinest ;is to tlu^ repayiiieiit of S.'ilM) ! Imr-
rowed from you so many years ago. and until 1
p;iy the money I will execute anything you wish
nil' to do for its security," .iiid there was evi-
dence shewing that the only money ever loaned
to the mortgagor hy the mortg.igee was the sum
so adv.iiiced on the mortgage, it was held sutli-
cieiit to take the case out of the statute. Ilm-
ii'irl,- V. ISant-Uk, l!l Chy. .Sit.
In a hill for forech.sure, &c. : llchl. tli.it evi-
dence taken hy the )ilailitiir to eoiitr.idiet state-
ments made in the answer was admissihle, though
not put ill issue hy the hill. Kvidence not read
in the cause cannot he iii.idc use of hy the defen-
dant to shew that the suit is defective for want
of parties ; such defect must he a]>].;ireiit from
the pleadings and evidence. Sihrnni v. ..I /•///-
s/,i)/);/, I U.S. .TJ7.
When evidence afTecting the amount repre-
sented .IS due hy tlu^ second mortgage i.s taken
in the ahsence of the personal representative
of such second niortgagi'c (dceeascdl it ciiinot
he read .against the ei|Uitahle lioldi r of such
mortgage, although sueh ei|iiitahle holder was
a party to the suit when the evidence was taken,
and cross-exaniiiieil the co-defendant whose evi-
dence all'ected the mortgage. (i'r(;/(.<.'"'iic v,
I4-.'.- (hy.
till' death of the niortg.igei , wheri^ his cst.ltc
iviiiaiiis interested therein, iiinst he tiled hy t'le
I'.veiiitor or other pcrsoiial representative ; his
wi.l.'W (as such) has 1..1 right to tile sni'li a hill.
Wjiei-c a hill stated that "II., the widow of the
suid C. (the mortgagee), and the pei'soii entitled
liy law to vcceivi^ the moneys secured hy said
iiiorli.'Mgc, exhihitcd her hill of coiii]ilaiiit ":
Ih'M. had, (.11 denmrrer, as not shewing with
Millicieiit distinctness how she was entitled.
G'lrritt V. Smiiiili r.-i, '2'A Chy. .'jlitJ.
(1. Ollii r Cii.ivn.
\ UK.rtgagee whose mortgage was made hefore
till' registry laws re(|uired registr.ition to iiisiii-e
liri'iiity, lilcd a hill to foreclose. 'I'lie mortgage
luid imt heen registered : Held, that suhseoiieiit
umrtyagees were hound to redeem him, his a).-
I I'linitiipii heing to lix a time for them to ri'deciii;
laiul tliiit purchase for valuahh' consideration
[ttitlimit notice could not he (.leaded ag.iinst him.
i'ni,.H-l>r V. Ptttit, o L. .1. 41. < 'liv. X. C.
IM. ItU.
•■Vftor a decree for foreclosure, if the mortgagor
|iii|v.ssessiou conimit.5 w.uitotlie court will enjoin ' I'dikM, ti I-.
l.-.l
ri
5403
MORTGA(JE.
2\
P
'I'lll! ('. S. V. ('. C, 13, HOC. Hi, 8Ul»-HUC'. 4, IW
til (,'iviiig uililitiiiiiiil Hccurity puiuliiiuaiipual, iIhom
not ivpiily t(j iiiortt^agi! ciwch. rlir linnl: nf
r,,!,,!' Ciiiinilti V. f'oltinf, 6 L J. :«8. I'hy
( 'luiiiili.
Miirtgii^'f of IiMse i)f iiurHury groiiiiilii
t^iigiir iiiiil .M(irt^:igo(.' |{uilviii|itiiiii
-Mort
Ciiiitriict
iiiuilc ill Oliiii siiuglit til lit; uiifiiiveil in ('uiiikIi'i
Itiitu of iiiteru.st Mortgaguu in iiimHL'MHion carrj'-
ing on liUHinuMH anil inakinu uilvanct-H anil ini-
ln'ovcnii'ntH, on tin; itu)i]iiMitiiin that rt'iloniption
will UL'Ver liu aMkcil for SiilwL'i|iiunt oliargu« for
.salary ami remuneration for eonduoting liuxinuxH
— Mingling of aceountH Iti'iiort. Suo J'rci: v,
<;iis/ni,/, ID L. .1. 302. C'hy.
It a|ipe.''.riiiL' on the eviileiice, though not
nientioneil in tlie iileailingH, that the purchaser
of lanil at a Hlieritl's sale for taxes was a mort-
gagee of the property :- Held, in ilisinisHing a
liill lileil to set aside the purehase on the ground
of undue praetiees at the sale, that it WiW un-
necessary tn reserve lilierty to lile a liill iin-
[leaching the s.ile on the ground that he Wiwdis-
ijualilied as mortgagee to ell'eet the purchase for
his own lieiielit. Sr/iofkl'l v. DirhiiHoii, 10 C'liy.
•2'2{\.
In a suit liv a judgment creditor to set aside
a fraudulent settlement and to realize his judg-
ment, pr.iying a sale of tlie property on default
in payment, if the sale should prove abortive :
Semlile, that the usual order for redemption, or
in default foreclosure will lie granted ; at all
events it would lie so if the judgment delit was
.suliject to a prior mortuage which the judgment
creditor would lie entitled to redeem, i'lmiiinf-
rial liiiiih V. CiKih, 1 I'hy. (Jhainh. UO.'i. — Spragge.
Since the passing of the order (435) of 20th
Decemlicr, 18(!r>, the registrar luis the power of
issuing any decree <iii pnecipe in mortgage cjises
■th it the court would, jireviously to that order, ,
have made upoi> ■\ liuaring jiro confesso. Kirk-
/iiiiiii-k- V. Iloiri'll, '2.'2 L'liy. 04. See also limll
v. T'lini'^, III. Do.
The court will not countenance the unneces-
sary incurring of costs of tili'ig a hill for the par-
tition and sale of the estate of infants for the
purpose of discharging a mortgage thereon, which
olijt'ct could lie ohtained as etfectually in the
ordinary way liy proceedings lieing taken at the
in.stauce of the mortgagee ; and where such a
suit Mas lirought in the name of infants, the
court on dismissing the hill ordereil the costs of
the defendants to lie paid by the next friend of
the infants. Cnrni/l v. (Jarroll, '2[i Chy. 43S.
XlV. MtSLELLANEOt'H CasES.
Mortgagees are not trustees under 4 Will.
TV. c. 1, sec. 48, so iw to take jointly when the
deed is silent as to the tenancy ereateil. Doe d.
.Sliuti^r I't III. V. C'lirtHi; H. T. 2 Vict.
Neither the mortgagee, nor his assignee, caii be
disseized by the mortgagor cuntinuing in pos-
session. Doi' d. Caret/ et (il. v. Cuiiihiirhiml, 7
Q. B. 494.
' ' Sir, — Mr. J. informs me that you have a doubt
respecting the validity of a mortgage from him
to you for your claim for the sails and rigging.
I am willing to become responsible to you that
a good and valid mortgage shall be made to you
iu the course of this fall, provided you eousent
to the vessel being tittid for sea, or ill default
your not receiving it I will be nsponsililc |
the iiaymeiit of ^our debt in twelve iiionths :
Melil, that oircrmg a mortgage subject to \,\
prior iiiiirtgages, Mhicli were given iiiorcov
after the guarantee, was not such a valid nin
gage as the guarantee iinported. Jiiikiii^ v. //'
tan, H {). \\. ti25.
The ]ilaintitrs, having obtained letters of a
ininiHtration, brought an action of detinue fur .
indenture of mortgage in fee, made to tlu.' iiiti
tate, and after his death in the possession of lU IV
dant: -Held, tli.it the title to the mortgage fi
lowed the legal estate, ami that it tlierefn
lielonged to the mortgagee's heir. Jfinri/nii
III. V. jiruirii, I ('. r. I'.ni.
The term "valuable security," used inC.
< '. e. !(2, s. 72, means a v.aluable security to tl
person who p.irts with it on the false pri-temi
and the inducing a person to execute a iiiortgai
on his jiroperty is therefore not obtaining fro
him a valuable security within the act. //<•./('/
v. lirii'l;/, 2(i<i. h. 13.
A harliour and road joint stock company 1
it.* charter, l(! Vii't. c. 1 H, had power to 'h\
tolls on goods landed or shipped within ci'rt.ii
prescribed limits ; and the harbour, riKul
wharves, and all the real estate were to I
vested in the conipaiiy and their successors fi
ever. The coiiipany timling it ncessary )
mortgage the harliour, tolls, \-c., did so iiiidi
authority of their ch.irti'r, and the iiiort;,',i;;(
foreclosed the security, entered into posMcsMJoi
and leased to the plaiiitill', who sued ilrfcmlan
owner of the wharf within the st.itutalilc llnill
of the harbour, for toll on goods shipjied or l.iinlr
on defendant's wharf : -Held, that the plaiiiti
could sue only in the corimrate name, iiiid a ni
suit was therefore directed. H'/i!t(\iii/c v. />'</
<-h>ni,l„:r, 22('. 1*. 241.
In a bill tiled by the administrators with tl
will nnnexed and irreditors of H., it was allrgi
that on a sale of land by H. to K. tiic i.ittl
executed a mortgage to secure the piMxIi.iJ
money, but that by the fraud and design nl
such mortgage was withheld from legiNtr.itiu
and that the lands were subseipieiitiy snM I
K. to two purchasers who, before the (•iinvcj
aiices to them were executed, or, at ail ivciitj
liefore the payment <if their purehase iikimcv
had notice and were well aware that K. hail il
paid his purchase money and had given his innil
gage therefor, and that they, fraildiilciitly if
tending to cut out such mortgage, had i ainif
the conveyances to themselves to lie registiTil
The bill further alleged that neither of tlicl
purchiusers had yet paid their purchase mioihI
and claimed that the mortgage to H. sliunlil
fiisteiied on the land as a charge jirior to tin
conveyances, and failing that relief, that tl|
amount payable by them to K. in icsiicct
their purchase money respectively iniglit
orderetl to be paiil to the plaintilfs on acinuiitl
the mortgage money due under the iiinitj^ai
from K. 'i'lie purchasers demurred giiieMl]
t<i such bill for want of equity, which mi .irgj
ment was overruled : the court holiliiii; tlif
:ie pi
urcli.i
purcliase money payable by the piinliiwuis ul
over-due before taking proceedings; and tliiitf
case of notice before the execution of tlK"*i' o'l
veyances the mortgage would take lirccciiiiM
2404
1 tliit it UlilllnlV
'■'■'^"J.n not. 'l.t.vi''i''i! '•••'.''"
^^l^wUhi^ the act. «./
'="'y:-""i,. it m...Hs.ry t.
'''^' ";': °& .>li-^^'"""''■'•
,•11.111"' ,„.S,(fSMlHll,
tlecov U."am.,a..a.u.n■
1 ♦1... ■v.\miuistr!vtor« with tlio
r 1 V . to K. ti..Utt,.r
^'V^^f Lir Vurcha«eninu.v-
Lm..neyauclW;^<lM^^ l,,„t,,,,,,.
'uul t\ua ^^yjj'^'l^'y >'.^""^-t
out H"ch '"'"^^^Ko -.-isUTc,!.
L allegc'l ti>at uut^ ^^^^^^^^^,
yet l-aM tU^» '»» " ,,,,,,,1 1.
', lan.l as a cluvvbc V , the
I ^vihugtht rclu-'.^^^^^^^^j
1 money >-"?l'.'^f: r ' f,> ao." uut of
lp„rc\u«ers.cmum^ ^^^_^^^^^
want of ^'l"''^^'.. ,„\,liiw that
k-ule.l : the "^'^^jj ' '"uU the
V i)ayai)le oy wv i , j,.itiii
'tkingl.n.cee.g.-^l,,,
L{.,nahe execution ot
Lrtyagc ^voul.\ take i
noTi
MOIITOAOE.
2406
thereof ; or if only before payment the inireliaxe \ to whom he hivcl koM, whoso ttolieitor chiiineil ft
moneyiiayalih'liy the imreliaMerH could he chiinied lien an againnt Hudi tliinl l>artj-, ami ileclined
liy tiie [tlaintitli. /■irijimni v. Kilti/, 10 Cliy. : to deliver tiiem to tlu' iiinit^Myee. On a motion
liW. for tiiat i>uri)iwe, an order wax made fur their
A niort^fagu to orcditort, toseeuro thuir duhts, | 'lelivery. Sfmiun v. Ani,/,,, •_' ( 'liy. ( 'hiiml). .MS.
is a HUtHeient valnahle couHideratioii to give a^ '^l"'aKg"'
prior re^i«tered eonveyaiue i.ri'.e<lenc'o over a Wliere a toHt:itor ilevined nroi.erty and after-
ronveyame previously executed, i.ut leuistered ^,,,,1^ mortganed it, and tlie i.erM..nal estate waH
suhse.iuently. //•<(.•../• v. Suthnlowl. 2 ( hy. 4t'J. insullicirnt to jiiy the d.l.t.s an.l leKacicH, it wan
The executor of a mortgaKeo had not, under ""^I'l per Sprayne, V.C., that the .levinee of thi)
(', S, r. ('. c. 87, H. ."i, any power to convey the uiortf^aKed propiTty was entitled an against the
ligal estate toaperm.n puiV'haHing tlie mort^aKc. '''K'^ics to have tlie prop.rty exonerated from
n'nlnntuit v. ////.cs, !t Chy. r)7-'. .Sue //»»/(<• v. , the mortija^^e at the ixpense of tlie personal
/•,/,-,■ ./ .»/., •i'.\\i. H. 32-t. Hutsco now '.V2 Vict, i "Htate. bii,,, v. /,.//./,, Hi Cliy. l.V.>.
'■ '"' '*• In case of a ]iuroli:i-ie nf a nmrtgago Hecurlty
A mortgagee, after the death of the mortgagor, | recently given on all his real estate liy an insof-
has a ri);ht in an administration suit to prove I vent father to his son, tlie purchaser, if he has
upon tin.' general estate for his wliole claim, and , notice of his insolveiu'y, siioiild liefoio coni-
to hold his security for what the general estate \ pletiii;^ his iiuiciiasc satisfy liimself hy lU'oiKjr
.;uinot i>av ; and the fact that ,i simple contract ^ impiirics tiial the mortgage was lioiia licto and
. ri'ditor lias ohtained judgment against the g 1 against creditors, '/'niitn v. Dninjln-i, 18
iicisoiial representative, and an execution against , Cliy. ,'UI; KJ Cliy. '1\'X
hinds, will not atl'ect such right. /ii n Sl( irnii, \ ». i . ii i, • r n
,7 n-l v. S>. „;,rt, 10 (.'liy. I.ilt. I , -^ 'nortga-'c was crea ed hy I >., in tavour of two
■' ; orotliels, who executed ail aglcvliiuiit a[iportloll-
Wliere a wrong lot was mortgagi'd through iiig the amount seciiird Iptwecii thcin, and after-
.■nor. the mortgagor owning only the land in- , wards joiiicil in an assigmiiitnt of tlie security to
tended to lie emiiraci'd in it, and having no title M. in trust, as to tli' liist instalment, to pay the
til that actually conveyed, and he suliseiiueiitly , same eipially to tiic niortgageis, oin.' of whom,
sold the land to which iie had the title, tliecourt j •'., suliseiiueiitly conveyed his inteitst in the
.iidcied him to account for the proceeds of the \ mortgage to \{. (the iihiintitl), for tlie hiiietit of
.>:ilc not exceeding the mortgage, secured with cretlitors. The other mortgagee snlist'iiut'iitly
the interest and costs. Lamhi \. McKniiiit, 1\ . accpiired the eipiity of rediinptioii, went into
I'liy. o7S. I possession of the liiciiiist.s, and siiijceudcd ill
Since the estahlishment of a government Do- \ i^atisfying the amount of mortgage iiionty other
iiiiiiioii stock, tile investment of infants' money th.iu the hist instalment thereol, M. executed
i,v the court should, .as a general rule, l,e in i 'V,**^ '*''*' ' ' """'-•'«'■ '""''-■'' the statute,
-lieli stock, rather than, as forinerlv, in iiiort- ■ ".'^■^''J''''^ t''"t "• ''■"I I'l"' all moneys sccureil
liy the mortgage. In fact l>. never ]iaid any
portion of the money, and the liist instalment
never was paid hy any one, and .1. was indeliteil
to his eo-inortgagee to a greater amount than
his share of the lirst instalment wouhl come to.
M. died, and a liiU was lileil .igainst his personal
represL'iitatives liy II. ealliiig uiioii them to p.ay
the share of the lirst instalment coming to .(.
Under these circumstances the court— HeUl,
.liiir!,'iiig him with all jiayiueiits made hy him ' that the estate of M. was liouiid to make good
;.i siiuiile ccmtract creditors liefore satisfying | the amount to which .1. w.is prove<l to have heen
the specialty delits. He then asked a sale of i untitled, although no want of iiona tides couhl
tile iiiortgagcd premises to make up any deti- i he imputed toM. Ilmrhiiid v. Mr/,, an, 22
aeiicy. 'riie trustee, instead of liliiig a memo- ; t'liy. 231.
iu,luiii .lisputing the delit, jiut in his answer | a trustee of lands authorized to sell, and,
ntestiug the_ right ot the mortgagee to the I Mnuiv^it .itlier things, to retain tind pay sums
.a;;es. Kiiii,i'<iii'tll \. Mill' I', I.'i I'hy. 171.
A mortgagee tilecl his hill tigainst tin' as.^igiiee
nt the mortgagor, whose title was that of an
issiiiiiee for the lieiietit of creditors iiiideia trust
leeil excliiiling all preference ami priority pray-
;ui; that the trust estate might lie tirst applied in
■layiiieiit of his sjiecialty deht, and iisking an ac-
• iiiiit against the trustee, with the view of
r.hei prayed for against the trust estate, and I ,i„^, ,^,„i ,„,,i, t„ ,,j„„,,f ,,^. the settlor, and to
-uhmittmg that the mortgagee was only entitled I the l.alance to the set'thu-, mortgaged his
t. the usual foreclosure or sale decree, Imt imt {„t^.,.^,,t to the plaiiitill', giving covenants for
; , the costs other than a imeciiie decree :-Held title and further assurance ; and then liy tirrango-
r tnaii a pra-ciiie decree :
id excluded all iireferei
the trust deed excluded all preference and
iriniity as t<i the payment of the delits, the
rules aiiilicalilc to the .administration of the
'>t,ites iif intest.ates did not apjily, and that the
j '.iiiirtyaj;oe, for anything beyond what his mort-
1 Siv wiiuld realize, couTd claim only the same as
■ther creditors. And as the mortgagee could
I aave olitained all the relief he was entitleil to hy
I'leoree on pnecipe, he was declared entitled
"uly to the costs of such a decree, and was
■iil'-Teil to pay to the trustee his costs of ilefend-
li^tliB trust estate, dure Bank v. Siit/ifi-laml,
iL.l. N. S. 15'J.— Chy.
.\ mortgagor, .-ifter foreclosure, having retained
jtlie title deeds, delivered them to a thud p.arty
•rango-
nient with the settlor the trustee was to he en-
titled to pay himself and his partners for goods
and advances made after the mortgage; and
afterwards hecoming entitled to the whole part-
nership estate, it was -Held, that the further
charge enured to the lieiielit of the mortgagee.
Tlie E(Uiihuri/h Life Anwcialiuii v. Alhii, 23 I'hy.
2.30.
A purcli.ase of lands had been made by iilain-
titfs and one C. jointly, each to pay onedialf the
purchase money. The plaintill's paid more than
their share, and had a lien on ('.'s interest for
the excess ; they also had lumber dealings to-
gether, the accounts of which were unsettled,
iind the balance thereon was claimed by each to
IMAGE EVALUATION
TEST TARGET (MT-3)
1.0
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1.25
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2.5
1.4
IIIIM |I|||Z2
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1.6
Photographic
Sciences
Corporation
23 WEST MAIN STREET
WEBSTER, NY. 14580
,7\t, 872-4503
\
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2407
MUNICIPAL CORPORATIONS.
24(
("if
.l i
be in his f.avour. Tn .accounts of these luml)er
dealings tlie ])liiintitrs liml charged (J. with his
share of the imrchase luouey. They afterwards
filed a bill claiming that tlie land account and
the lumber account were unconnected : that they
should be paid tlieir advances for C. on the land,
and that in default his mortgagees and assignee
should be foreclosed : — Held, that as against the
lien of the plaintifl's on the land these mortga-
gees were entitled to set oil' the amount, if any,
due by the plaiutitt's on the lumber dealings.
Cooky. Mnxoii, 24 Chy. 112.
The plaintiffs put in evidence that (.'. had, on
a former occasion, lileil a bill against them seek-
ing an account of the lumber dealings, and
charging that the land agreement had been can-
celled ; that it was after answer and before de-
cree in that suit that C had mortgaged his
interest to ;M. &. W. (who were not made ])arties
to the suit and had not any luiticc of it) ; and i
that the cause having been set down for exami- I
nation of witnesses, and the plaintiff therein not !
appearing, the bill was dismissed with costs. |
The pi'csent plaintiffs, liowever, did not in their !
bill set up these proceedings. The court de-
clined to iiold the defendants the mortgagees
concluded by them as res judicata. lb.
MOETMAIN.
I. Deed.s to Cm'RfHE.s AND Relioioi'.s Insti-
tutions. — ,S'(V' CllUHCIIKS.
II. Statutes ok a:^ Affecting Devises and
l^EguESTs. — Si'i- "Will.
The st.itute 9 (ieu. II. c. Uli, relating to chari-
table uses is in force in Upper Canada. Dae d.
A)ii/,'r.-:oii V. Todi/ it'i/., 2 Q. B. 82; Ilnllork \.
Wil.-i,,),, 7 C. P. '?« ; Mi'irn- v. Jlnr.ifon, !) C. I'.
34!); n,iwhh/Y- Fiill'i; 22 ('. ]'. 141 ; Corpora-
tion (If' WhUliii V. JMrowbv, 22 Chy. 203; 23
Chy. 1, in ap[ical.
Municipal corporations are within the statute
of mortmain. Bnurn v. J/c.Xidi, 20 Chy. 171).
Under the provincial statute C!eo. IV. c. 2
sec. 3, a deed conveying land to trustees for
the use of ;i religious society is invalid for want
of registration, ykf d. Butrman il at. v. Ciiniuron
4 y. 15. l.")5.
liegistration held sullicient to make a deed
valid under th-- Statutes (jf Nbirtmain, without
curollnient in Ch.iuceiv. Jlitllork v. Wilnoii, 7
C. r. 2S; Hainhli] v. Falhr, 22 C. P. 141.
Quiere, whether registration is necessary.
Marctr v. Ilcir.s/ou ct (iL, !) C. P. 34!).
After the passing of 27 Vict. c. 17, a munici-
pal corporation invested on mortgage part of the
surplus clergy rc-erve moneys in their liands,
and the nuirtgagors made default in payment,
whereupon the nuinieii)ality Hied a bill to fore-
close the security : -Held, that the municipality
were entitled to a decree of foreclosure, and were
not restricted to a sale of the property only,
notwithstanding the statutes of mortmain. T/ic
JUiunclpalifi/ uf 0.r/ord v. Balhii, 12 Chy. 27G.
Declaration, on a bond made by testator for
payment of .'^2,000 to [ilaintiff, as treasui'er of the
board of trustees of the Is'ew York iJaptist Union
for ministerial education, or his successor in offic
Plea, that the bond was made without conaidt
ation ; and that, so far as defendants, as exec
tors, might be called to pay the same out of tl
realty, tlie said bond was void and contrary
the .Statute of Mortn.ain, and was of the natu
of a bequest for charitable purposes, and was n
a deed executed before two credible witnessc
&c. ; and that, as such executors, they oug
not to pay the same out of realty ; and that thi
had fully administered all the remainder of t
personalty which had come to their liands
executors : — Held, on deuuirrer, plea bad ; for
did not disclose any device on the part of t
testator to evade the Statutes of Mortmain ; (
the contrary, it admitted his ,bona fides in d
posing of so much of his estate as personalt
but asked tluit his lands might be protected frf
the judgment to be recovered, which was a (\
fence in the nature of a (piia timet, and all
gcther miwarranteil. Paliu- v. Kilhunnn' d a
EM'CuUjr-'i of Ik'urii, Ki C. P. U4.
A voluntary bond to a charity, purporting
bind the oljligor and his heirs, and payable s
months after the obligor'a death, cannot be (
forced against the obligor's land. Andcrtoii
Paine, 14 Chy. 1 10.
A deed may be good in part, though void
part. Where, therefore, a conveyance was ma
of lands, and the grantees contemporaneous
executed a declaration of trust in respect there
as follows : — To lease the lands until sold, and
sell them ; to pay the annual i)roceeds to t
settlor for life, and after the death of the sett!
to pay the same, or in the discretion of t
trustees a portion thereof, to ^1. durhig his lit
and the tru ■tees sohl a portion of the estate, -a
after the death of the settlor a bill was til
impeaching the settlement as void under t
Statute of Mortmain, which it admittedly
as respected the tnists declared of the coiji
the estate : — Held, that the ti'usts declarei
favour of the settlor and M. were sufHcient In
ever, to support the sale which had been elle
and the bill, as against the trustees, the
chaser from them, and M., was dismissed
costs. Alc/saac v. Henchirnj, 20 Chj'. M^
MOTIONS.
.St'c Practice at Law — Pkactke in 1m;v
MULTIFAPJOUSNESS.
Si-i'. Pleai)IN(; tN I'^QuiTV.
MUNICIPAL CORPORATIONS.
I. ]\IUNI(irAL Oli(!ANIZATION.
1. Corjiorate \unn\
(a) In Ihj-lawK, 2412.
(b) Other Caxvn, 2412.
2. Formation, of jV<'ii) Ciirpuroliuii.-;
(a) Debts and Liabilitiix, hmi' nfir
2413.
(b) Ojfiriids and, /licir .Siiritli-'<,
aj/'i'ded, 2415.
2408
I or his successor in office.
^maae without consi.ler-
as aefen.lants, as execu-
, l,ay the same out of the
l.r voi.l ana contrary to
tr ami Wivs of the nature
able purposes, ami was not
:et^'o crclible witnesses
ch executors, they ought
,t of realty; and that they
d all the remanuler o the
.^ome to their hands a« ,
1 demurrer, plea had; fort
device on the part of the
Sutes of Mortmain; on
.itted his .bona lides in d.s-
"h is estate as personalty,
ils might be protected frmu
recovered, ^vlnch was . |U,
. \,i a c.uia timet, and dto-
- "/wv.O^u.n-.- <«..(.,
"lOC. I'- «-i-
d to a charity, purporting tu
d his heirs, and payable X
,bliuor'» death, cannot be cu-
'Sgorsland. Aud.r.on ', .
.'rood in part, though void in
So e a conveyance was made
\\n.vLi to M. during his hto
u tliercoi, u>' ostate, ami
fc'^M^vlresnffieieutl....-
tesak which had beenertea..
^-^,in;;^ochy.m
MOTIONS.
[ltifawa>usxess.
IpLE.Vl.l.N.l IN l^QVVV^-
lu'AL COUl'OllATIONS.
TvL OmiASlZ.VTION.
l,nite Name
.i Oil*'
1 0^/i''C '"«'•''' -*^-
ff^oii 'y •->'"' '- /. , ,„,,,i;,./,,l
•2413. , ,. , i,j
2i09
MUNICIPAL CORPORATIONS.
2410
(c) V,\hi of Taroiito and County of
YoH; 24)0.
(.1) Other Matters, 2416.
(e) Effect of Sepitrntioii of Counties on
Co))nninsionrrn fur Taking Affi.-
ilavitx — See Affidavit.
(i) Oaol Limits— See Bail.
II. Memiskhs of Couxcils.
1. Qnalijieatioii of.
(a) Projierti/ and AssrHsiiiciit, 2417.
(1)) (Mer Cases, 2421.
2. Disi/iialijieation.
(a) As an Officer if the Corporation,
2421.
())) As Lessee or Lessor of the Corpo-
ration, 2422.
(c) Contracts with the. Corporation,
2422.
(d) As fiinbeper, 2425.
(e) Other Cases, 242«.
TIL ^MrNlrlPAL Ij.rrilOXS.
1. Electors.
(a) QunUf cation of Voters, 2427.
(b) Errors or Omissions in Respect to
, Cdlleclors' anil Assessors' HoUs,
2429.
(c) Voters' Lists— See PARLIAMENT.
2. Elections.
(a) General/;/, 24.S1.
(b) Time ami Place fur HuhUnij, 2431.
(c) lieturninii Officer, 2431.
(d) Xominafion ami Withdrainil of
Camlhlntcs, 2432.
(e) Oaths, 2433.
(f ) A Iterimj Vote Erroneoushj Entered.
2433.'
(g) Caslinij Vole, 2433.
(h) Openimj and Closinej Poll, 2434.
(i) Disfiirhancc or Jliscomlnct at Poll,
2435.
(j) Corrupt Practices, 2430.
(k) Inspection of Ballot Papers; 2437.
(1) Vacancies in Council, 2437.
(m) Closinej Tarerns on Days of — See
Tavekn's and Siioi'.s.
3. Elections of ^fal/ors, Wardens, and
Pee res, 2437. '
IV. C.iNTUovEUTEn Elections.
1. When Proreed'inqs may he Taken under
the Statute, 2439.
2. Who may he Pelator, 2439.
3. Practice.
(a) Statement, Affidarit, and Pecogni-
zance, 2441.
(b) Writ of Summons, 2442.
(c) Disclaimer, 2444.
(d) Evidence, 2444.
(e) Co.'<t.% 2445.
(f ) Other Cases, 2447.
4. When Pelator or Other Candidate En-
titled to Sent, 2448.
5. Other Cases, 2450.
V. Acceptance and DECLAitATiox of Of-
fice, 2450.
VI. Meetings of Councils and Conduct of
Blsinesh, 24.")2,
1. Elections if Mni/ors, Wardens, and
Reeves — See p. 2437.
VII. Officers OF THE Coiti'iniATioN.
1. Treasurer ami his Suretiis, 2453.
2. Other Offieers, 245S.
3. Collj-ctors ami their Sureties — SVc As-
SESS.MENT AND TaXE.S.
4. Clerk of the Peace — .SVe Clfuk of the
Peace.
5. Couuti/ Attorney — See Cointv Attor-
ney.
VIII. By-LAWS.
1. Construction ami Efect if — Generalli/,
2400.
2. Votiui/ on Ity Ehrlnrs, 2401.
(a) To Aid /'iillirinis-Sei\\\jj.\vwn
AND UaILWAV COMI'ANIES.
3. Creatimj Dehts, 2402.
4. Levyinij Yearly Jlati-i, 2407.
5. Fines and Penalties — See p. 24S7.
0. Pepealimj — See p. 2488.
7. To Aid or Take Stock in Pailways —
See Bati.wavs and Patiavav Com-
I'ANIES.
IX. QuASHIN(i BV-LAWS OK HksoLVTIONS.
1. Who may More, 2408.
2. Objections not A/i/iurint on the Bydau;
' 2409.
3. Other Cases, 2409.
4. Practice on Apj>Ue'i''rins to Quaih.
(a) Time fir Mnrinij, 2471.
(b) Ajildaril.i, 2473.
(c) Proof of By-lairs,2VlX
(d) Pule, 2474.
(e) Cost,s 2475.
5. XeCis.'<itii for Qiin^-tiio'l hifore .iction,
2470.
X. CONTRAITS Bv AND WiTH— .SVc CORPORA-
TIONS.
XI. General Powers and Dcttfs of Mcni-
CIPAI. COHPORATIONS.
1. 7'ti Remunerate or Imltuinify Jlendiers,
2470.
' 2. Puhlic Buildimjs, 2478. *
3. Seirers and Local luiprorements, 2480.
4. Draina<ie of Lands, 2482.
5. To Impose Tolls or Harbour Dues, 2483.
(a) Tolls on Roads— See W.4.YS.
6. Markets, Butchers, and Hucksters, 2483.
7. Impoundinii and Killimj Animals, 2^Q.
8. Billiard Tables, 2487.
9. Kuisances, 2487-
m
l*-;«
2411
MUNICIPAL CORPORATIONS.
241;
10. Finvx ami r<nnUi<H, 2487.
n. lii-piaUiKj Bii-hiicA, 2488
12. Other Pvmi:^ and Duticx, 2489.
13. As.si-.isiiicnt- See ASSESS.MENT AND
Taxks.
14. yl;« t'l Jf(iiliv(n/K—See Eaii.ways and
Kaii.wav Companiks.
15. iSiiiTei/K — See Suhvky.
16. Jfoadu and Brid(/ei< — See Way.
17. Tarei-ii.t and Shoji.s—See Taverns
AND Shops.
18. Under Temperance Act— See Tem-
I'EHANCE A(.T OF 1804.
XII. Actions liY Minrii'AL Cokporations.
1. Aijainrtt Mendierx, 2493.
2. Other CaxeH, 2495.
XIII. Actions and rnocEKDiNCis Aoainst
Municipal Cohpokations.
1. On ('iintraet.-< or Delientures not
Anlhur'tr.cd //// Law, 2497.
2. Other Cast.'<, 2rm.
3. yotice of Action — See Action and
.Suit.
4. Mandatnus to— Sec ]\Iani)ajius —
TuDLic Schools.
5. Xcijl'ujencc.
(a) OineraUi/—Sve Neolioence.
(b) In Construction of Drains — ■
See Water and Water
C0l'RSE.S.
(c) liepair of Roads — See Way.
Personal Liability of Members, 2504.
XIV.
XA'.
XVI.
XVII.
XV III.
XIX.
Contracts bv Members with Coun-
cils, 250().
Commission of Eni^uiry into Finances,
2.-)0ii.
Matters Referred to Arbitration,
2507.
Miscellaneous Cases, 2509.
Special Municipal Aits.
1. BrockriUe Police Act — See Brock-
viLLK I'oLicE Act.
2. Kingston — Sec Kingston (Town-
ship of).
3. London — See London (To\vn of).
4. Ottan-d — Sec O'iTAWA (To\vN of).
5. J'cel — ->ee I'EEL (CoUNTV OF).
(j. Port J/ope — See PoRT Hope (Town
of).
7. Sandwich-See Sandwich (Town of. )
8. Toronto— See Toronto (City of.)
XX. Assessment and Taxes — Sec Assess-
ment AND Taxes.
XXI. Sale of Land for Taxes — See As-
sessment and Taxes.
XXII. Court Houses — See Court House.
XXIII. Dedication of Land — See Dedica-
tion.
XXIV, Jurors' PIxpesses as between City
AND County — See Jury.
XXV.
XXVI.
xxvn.
XXVIII.
XXIX.
XXX.
XXXL
XXXII.
Municipal Loan Fund— .SVr Mini
cipal Loan Fund.
Poliue— iSVe Police — Taverns ani
Shops.
Registry' Offices — See REtasTi;'
Laws.
Statute Labour — See Assessmen-
AND Taxes.
Applications for Surveys — St
Survey.
Taverns and Shops — See Tave^.n
and Shops.
Roads and Bridges— .SVc Way.
Temperance Act— /Set Te.mperaxi f
Act of 18(54.
I. Municipal Organization.
1. Corporate \anie.
(a) In By-laws.
[The proper description now {e.rcept in the cnx.
of a Provisional Corporation) is The ( 'oriioratim
of the Count II, City, Town, ViUatji, Townshi/i, o,
United Counties, or United Ton-nships (as the casi
may lie) of (naniimj the same). Si! Vict, c, .'fS.
sec. 4-]
The " municipal council of the district o;
Wellingtoji " : — Held, sufficient. Flewilli/n v,
WeLster, () 0. S. 58().
So " The warden and county council of tli(
united counties of," &c. In re Hawkins v. 77/.
Municipal Council of Huron, Perth, and liriin,
2 C. P. 72.
It was objected tliat a by-law was expressti
on the face of it to be passed by tlie " niuniti
pulity of Vaughan,'' there being no sucli ccjriic
rate body : — Held, not a valid objection ; ain
Senible, if it were, that the applicant rccognizti
the by-law as one passed Ijy the corporatini
intended, by moving against it as a by-law piisse(
by that body. Fisher v. The Municipal Coimr'i
of Vuwjhan, lOQ. B. 492.
(b) Other Cases.
"Corporation of Toronto" : — Held, in.sutfkiLi
in a rule nisi, to designate the corptnatimi
the city of Toronto, fn re Sams v. The Curjmri
tion of Toronto, 9 Q. B. 181.
Held, that the misdescription of the garii
shees as "The City of Toronto," in tlie pleiu
ings, could not be taken advantage of under tli
circumstances ; but, Semble, that it niiglit '
waived or amended. Gwynne v. Pees, " T
City of Toronto " Carnisheeii, 2 P. R. 282.— P.
— Richards.
Held, that the municipal council was suffic
ently designated in a plea as " the municipalitv.
JohmstoH V. Peesor et al., 10 g. B. 101.
A rule nisi entitled as against "the nmnicifi.i
council" of a township, instead of "the niunici
pality, ' Held, sufficient. In re Barclay mullli
Municipal Council of Darlimjton, II Q. 15. 470.
The misnomer of the corijoration in the nil
to quash a by-law aa "the municipality of tli
2412
.0A>- FuND-.S'e.- Mini
I'OUCE-TAVEBN-H AM.
)FFicF.s - Sci' RE(iis-n;v
,^,,,n-See Assessment
ES.
SS FOU SCKVEYS - >"
>,D Siiors — 'SVc T\vErtN>
JPS.
Bridges— .S:<'e ^VAY.
,K Ac'T-«e<'TEMl-EUAN>r
18154.
AL OKtiANl/.A-riOX.
Jn By-lan'"-
■Mion now (exm't hi 'h,- <■'<.'
1 council of tlie ;U9tnct of
'n'au.l county council of tk
I that a l)y-l.W was express.;!
,, 1 e l.asse.l by the " num.ci-
l^' thlrel.eing«os«ehc<a•-
not a valid objection ; .uu
'tiiat the applicant vec^-nizcl
,e ^T^sed by the corporatioB
B. 492.
,) Other Cdxf".
E Toronto" :-Heia,ins« tot
desiuuate the corporation -i
Q. B. 181.
, ,nisaescripti<.n of the ^
Stvof Toronto," "\tlie 1''" ,
Sen advantage of under th.
:X^ouMo, that it niig ;t W
auniixhi'<'x, J f. 11- -<'-
.nunicipal council was suffi'i.;
■itled as against" the mumcU'al
,mea <v»»b" „f "the miniui-
of the corporation in the n.e
as "the mumcipahtj oiuk
2413
MUNICIPAL CORPORATIONS.
2414
incorporated village of ftauanoque, " was held im-
material, liroiihji mill till' ('iir/iiiriitioii of f/ic I'll-
Iwji' iif Uaminoqiii; 2(i C. F. 2!t0.
Inaccuracy in the corporate name in the de-
claration, &e., is immaterial after verdict, when
the identity of the corporate hoily is clear. Fnr-
reilv. T/ii' Mdiiiir ami Town CuiawU of tlw Town
of London, 12 Q. B. 343.
Declaration, that B. became bound to the plain-
tiffs, by the name of "the Beverley municipal
council," conditioned, &c. ; — Held, on denuir-
rer to the plea, tiiat defendants by not pleading
non est factum ailmittud tliat they ma<le tlie
bond to the plaintiffs, and therefore C(nild not
object that tliero was no such corporation. Tin'
Oorjtiiriitioii i^f tlm Towiixliij) of Bi-virli'ii v. Bar-
low i-t III., 10 C. i". 178.
" Tlie ])rovisional municipal county council of"
&c., "Tlie provisional corporation of" being the
proper corporate name : — Held, sufficient in a
Inrnd. Till /'rnrisinniil ('(ir/inriitioii of t/ie Coiinti/
of Bruce v. Cromar, 22 Q. B. 321.
Upon an application for a mandamus to a
railway company to register a transfer of svock
in the company, it appeared that the stock lad
been sold under an execution recovered against
"the m.aj'or, aldermen, and commonalty of the
city of Ottawa," as the corporation was then
designated, and by ('. S. U. C, c. 54, the name
was changed to "the corporation of the city of
Ottawa." The court, upon the objection of
informality in the name : — Held, that the execu-
tion properly followed the judgment, under C S.
U. ('. c. 1, s. 7, and was sufficient. In re (ruoilirin
v. The Ottawa and Pre-n-ott li. W. Co., 13 C. 1".
254.
As to the proper ilesiyii.ition of the warden of
a county — See lieifiiia I'.i: ril. JIcManim v. Fer-
r/((,s*,», 2 L. J. N.' S. 19.
2. Foniiiition of Xiir Corporation.t.
(a) Dehf^iinil Linh'il'it'ii-.f how Affeeted.
Where the plaintiff brought an action on the
oonunon counts, against the Huron district
cdiiiicil, for compensation awarded to him by a
jury for making a roiid across his premises before
the formation of the Huron district, and while
the laud formed part of the district of London ;
and the Huron district had, after its erection,
Msuined the payment of the sum awarded : —
Htild, that the action woiihl not lie against defeii-
ilaiits at all ; and if it wouhl the declaratimi
should have been sjjecial. McKee v. The Huron
bUti-kt Council, 1 Q. B. 3G8.
The testator having been appointed by the
linanco committee of the district council to
iiiUect the wild laud tax : — Held, that his
representatives were liable to the council for
money received by their authority .and not paiil
over. Where subseiuiently to the eommence-
ment of the action, one of the three united
cdiiuties had been set off from the other two :
-Held, that the suit was properly continned in
tlie name of the three counties. The Municipal
Ciiiincil of Lincoln, Wellaud, and Ilaklimanil v.
Thiimpmn et al., 8 Q. B. 015.
By 14 & 15 Vict. c. 5, the county of Waterloo
is made to consist of certain townships, includ-
ing north Dumfries, which before formed part of
the county of Halton. Sec. 8 provides that cer-
tain townships named, in which north Dumfries
is not included, shall be responsilde for their
share of the debt for budding the (iuelpli and
Dumlas road. This debt had liecii iiiuurred l)v
the former district of Wellington, which embraced
all the townsliips mentioned in sec. 8, except
Dumfries : — Held, that the municipal council
of Waterloo could not impose a rate on l)uiiifnes
to pay such debt, the omission of that township
in the 14 & 1,") Viet., shewing clearly that it
was not intended to l)e liable, hi re Mi'iiiiciiiiilittj
of Xorth Diniifrien and tin- Miiiiici/ial CdiiiicH of'
the County of Waterloo, 12 Q. B. 507.
Action for work done upon a road in the town-
ship of Ilus.sell. ('larence, Cumberland, Cam-
bridge, and Kussell, had been united ; Cuinlier-
land was separated in 18.")0, and Clarence in
185.S. In .January, 1851, the municipality (then
consisting of Clarence, I»ussell, and Cand)ridge,)
pas,sed a by-law, enacting that their treasurer
should receive from the county treasurer all
moneys received by him as tilled lands assess-
ment money due those townships ; that the
council for each township should decide where
such moneys shonhl be expended therein respec-
tively, and should ex]>eiid the same, making
proper returns to the treasurer ; and that on
comidetion of such jobs the road surveyor should
be associated with the councillor for examining
the same, and, if approved of, the parties per-
forming tlie work should be en'itlcd to payment.
In June, 1851, a resolution of the same munici-
pality was passed, that the road surveyor should
l)e associated with J. S., one of the councillors
for Kussell, to make contracts for opening the
road from the boundary line of Cambridge and
liussell to l.ouck's mill in Ivu.ssell. In January,
18.54, another by-law was passed by th(! munici-
pality (then including (Uily Cambridge and Rus-
sell) authorizing the icsurer to accept all
orders drawn by the late municipality mioii the
late treasurer, that is, the treasurer of Clarence,
Russell, and Cambridge. The plaintiff's tender
was accepted in pursnan>^e of the resolution fpf
.June, 1851, and the work was performed, exam-
ined, and approved of by the surveyor and .J. S. ;
and under the by-law of .January, 1851, Stewart
gave an order for the sum agreed upon in favour
of the plaintiff (m the treasurer of Clarence, Rus-
sell, and Cambridge: — Held, 1. That under the
by-law of 1854 the defeii<lants (the municipality
of Russell and Cambridge) had adopted the order
on the treasurer of the former union, and there-
fore no ditlicultj' was caused by the fact that the
municipality sued was not that contracted with.
2. That it was no (d)jection that H., the other
councillor for Russell, had not acted with S.,
and if it were, his dissent was not sufficiently
shewn. Fetterli/ v. The Muiiieioiditii of Bunnell
ami Candiridije,' 14Q. a. iXi.
Held, that the township of Waterloo was
liable, under 14 & 15 Vict., c. .5, for its share of
the debts of the Guelph and Dundas road
incurred by the county of Waterloo, (of which it
formed one township,) while that county was
united to the counties of Wellington and < Jrey ;
notwithstanding, too, that an arbitration took
place between those counties upon their separa-
tion, l)y which it was determined that Wel-
lington should assume the liability of the former
i joint counties. Held, also, that interest on the
>415
MUNICIPAL CORPORATIONS.
2411
aHcert.ainc(l debt was recovcrahle, it being not
interest upon interest, but interest on money
paid, or to be paid, for defendants. The Miini-
jxil Council of thf Ctiunly of WeUbiijUia v. The
Jfiiiiirijuilitij of Ihi' Township of Watfrloo, 8 C.
P. 358.
Held, that under 14 & 15 Vict. e. 5 .«. 8,
and 12 Vict. c. 78, s. 15, the county of Wel-
lington might maintain .actions against the town-
ships of Wilinot and Welleslcy respectively for
moneys paid on account of the (!ueli)h and Dun-
das lioad, as well by the united counties of
Wellingtiiu and Grey before the dissolution as
by ^Vclliiigtoii aftcrwirds. As to the first men-
tioned j)ayments the 12 Vict. c. 78, s. 1.5, must
lie taken to allow such recovery notwithstanding
the technical rule of law against assignment of
debts :- Held, also, that on the special count
any part of the debt actually due for such roads
might be recovered, though it had not yet been
paid. (i)n!vrc, whether the county could have
enforced [jivynient by levying a rate on these
townships. Thi' .Afin'iri/xtl Coniirif of thi' Count ij
(f Wi'Hiiiijton V. Thi' Jfiiniripalili/ ifthf Tmrnship
of Wihnot ; .SVn/fc I'ldintiffn v. The Mttnidiialitij
of the Toii'ii.-ihiii of \VclU\-il(!i, 17 Q. B. 82.
Under the Registry and Municipal Acts, 29
Vict. c. 24, and 2!) 3() Vict. c. 51 :— Held, that
the ct)unties of York and Peel were jointly liable
to the registrar of I'eel for services rendered by
him, under sees. 20 and 33 of tlic Hcgistvy Act,
before the separation of tliese counties. C<nni>-
licll V. Thi' Ci>r/ioriilii>n. of York and Pvil, 26 Q.
B. C35; 27 Q. r>. 138.
Qiwre, as to the proper party to sue in the
case of assets ])clongiug to a uuiou of counties,
and to recover which no suit is lu'ought till after
the dissolution of the union. Corjinrnlion oj
Front luar v. Corpumtion if KinjMon, 20 C. 1'. 4!).
The plaiiititf contracted under seal with the
unit.'il counties of Huron and Bruce, to con-
struct a gravel rurid in Hruce. The counties were
.sspar.itud on the 1st January, 1807 : — Hehl, that
the ])laiiitilT' cduM not afterwards sue the county
of Bruce alone for work done in making the
road. Ekin.t v. Thf Corporation of thr Count ii of
lirnci', 30 <^ \'>. 48.
See fn n- the Aim rd hi'tirfi-n thi' Township of
Ilun-irl' mill thr Vil/m/i' of Wruxitcr, 12 L. J. \.
.S. ()4, p. 2509.
(b) O^iriala ami thiir Siii-i'tiits how Affected.
Held, Burns, J., diss., that the sureties for a
.sheriff of the United Counties of Middlesex and
I'llgin, were not liable for him as slieritt' of Mid-
dlesex only after the union had been dissolved.
Thonip.^oii el al. v. McLian it a/., 17 Q. B. 495.
A bond was taken to "The Municipality of
the township of Whitby." and afterwards the
township was diviilcd, liy 20 Vict. c. 113, into
Whitby and East Whitby : — HcM, that the bond
was jirojjerly sueil upon in the name of the cor-
poration of Whitby. The Corjioraliun of the
Township of Whithij v. Harrison, 18 Q. B. 003.
The 12 Vict. e. 78, which i)rovide<l for the
separation of a junior county from a union of
counties, also provided for the formation of pro-
visional councds in the junior county until the
separation should be perfected, and empowered
the provisional council to raise moneys for ccr
tain limited purposes, namely, the erection of i
court house and jail, and to appoint a ]>rovi
sional treasurer, whose duties were hmited to tin
levying, collecting, anil jjaying over such moneys
By 13 & 14 Viet. c. 24, it was provided that oi
the dissolution Iteing perfected, and the nev
county formeil, all the provisional officers wen
to continue the officers of the new county unti
their successors were appointed, and all tin
by-laws were to remain in furcc until altered
amended, or repealed. Under the first iiainei
Act, the provisional ciu'poration passed aliy-lav
ap])ointing one P. treasurer, and defendiuits he
came his sureties for the faithful execution of hi
ofiiee. On the formation of the new county ;
by-law was passed repealing the by-law cit tli
provisional corporation, under which 1'. Imd l)eei
appointed treasurer, and they thereafter n]i
pointed him treasurer of the new county:- Hold
that defendants were not lialilc f( r I'.'s ,i ts a
treasurer under such last-named .iiipointnicnt
Qua're, whether, if the by-law had not been re
pealed, and ]'. had continued treasurer of tli
new county, defendants would have been liable
The Corporation ot' the Coniili/ nf' Ontario y. I'u.i
ton etal., 27 C. V. 104.
See Corpornlion of Es.-ie.e v. /'((/•/■, 1 1 V. V. 47."?
p. 2454.
(c) Citij of Toronto and the Cviiiilj if Yurk.
In consequence of the separation of the city oi
Toronto from the county of York for judiVia
purposes, a deed was executed between tlu
respective corporations, on which the city cov'
cnanted to pay the county a certain aiuiu;il ^uii,
for the use of the court house. The deed alsi
contained other agreements as to the use <it' tlu
gaol. This arrangement was to continue in furci
until twelve months' notice to determine it slmuh
be given. By the Law lieforni .\ct, wliicli caiiii
into force in l*'ebruaiy, !8l)9, the city was n
united to the county for judic-al jmrposes, aiu|
on 21st March, 1809, the city gave the county tlij
stipulated notice as to intended discdiitinuaiir
of the use of the gaol, stating tliat as to the coini
house the action of the legislature had virtualll
ternnnated the provision respecting it, and tli;s|
no further })ayment would therefore bo made
Held, that the city had been released from iti
covenant to pay for the court house l)y the l,:iJ
Reform Act, and also that there was no lialiilitf
for an ali(piot jxirtiou .if the lialf yeai-'n w
which W(mld have become due on 21st Marcl
following. The Corporation of the Ciiinitij
York v. The Corporation of the Citij of Tiirniiti
21 C. P. 95.
Held, that since the passing of theLawliLfniil
Act, ,32 Vict. c. 0, s. 22, O., re-uniting the ..ityi
Toronto to the county of York for judicial piiJ
poses, the city is not liable to p.ay the i(nuit|
any compensation f(U' the use of the court Inmsi
'The Corporation of the Coiintji of York v. T\
Corporation of the Citi/ of Toronto, 22 C. 1'. 'A
(d) Other Matlir<.
Held, that the act abolishing districts iliil n|
takeaway from defendants the mine givun t
them by their charter. Hwfhes v. Th<' Mnlii'l
Fire Insiirnnce Co, of the District (/ A'ccw •>'/',
Q. B. 387.
2416
2417
MUNICIPAL COKPORATIONS.
2418
to raise moneys for ccr-
imincly, the erection of a
duties were liinitc(\ to the
..aviiiK over such immeys.
^ t was i.rovi.lci ti.at on
perfected, ami the new
J provisional othcers were
i „f the new county until
, avi.ointe.l, au.l all the
uu ill force until allcicl.
, IJn.ler the lust named
^vporationvassedaUy.law
,asurer, and .Icfciulants 1^-
the faithful execntK.not his
XSrwhiefv.1-1'-
, an.l they theveafter av-
;,- of the new county.- V eUl.
.enotliahlef.rl'.t'.; t.as
■h last-named apvointment.
■tliel.y-lawluuU.ot1.eenrc-
cntinued treasurer ot t k-
^,,t9Wouiaiiavel.ee,il.al|e.
104. ^
,10 ,U»1 II"' ('''""'O "f ^'"'''^'■
if the separation of the city of
cllty^.f Vorkfor,,ii.hm
,vas oxceute.1 l.etwceii tlu
tions, on which the city CON-
rJ u nty a certain annuid muu
court house. 'Hie .leed a so
reementsastotheusco te
;'nicntwastocoi.tnu.c.nto, .
;^- otieetoaetcrniine.tshouW
LawUefovm.Vct, wluclic:une
ruavv, 18l»'. the city was n-
U^ Ir judicvvl purposes and
I't the cty gave the county tlio
'it intJndcaaisconhm.au..
l^fitin.' that as to the court
''.f the legislature lia.lvnt.uN
■ovision i-cspcctmg 1 , UH. '.v
„twoniathcrcfm-e1.en a ^^
ity haa hccn released I .>in ^.
;c the passing of tlicLawUcMn
„ o.>(>., rc-unituiy tluyitN"
.'omi'ty' «'f Vork for judicial inu^
not liahle to l^vy the count)
^r\heuseofthecoiirt.o...
■Cltu of Toronto, '^'-^■^- •'^*-
A summons was sued out before the separa-
tion of Ontario from York and Peel, directing
defendants to appear in tlio united ctmnties of
York, Ontario and I'eel ; it was not served
until after the separation, and the venue in the
declaration was laid intlio three united eonnties.
The defendant demurred for this cause : — Held,
not a frivolous demurrer. Pliuttw v. Smith, it
al., 1 P. H. -JiS.— C. L. (.'haml). — Robinson.
The town of Sandwieli, incorporated under 20
Vict. c. 94, is only entitled to elect three coun-
cillors ill addition to a mayor and reeve, to bu
elected by the people. Jfci/bui ex nl. A riuild v.
WUkni.-^i,ii, ,-) P. U. 20 -C.'L. Chamb.— J.Wilson.
A by-law was jiassed by the united town-
shi])s of Smith and Harvey to levy a certain sum
on lands in H. to defray the expense of a re-sur-
vey of that townshii). The union having been
dissolved : — Held, that an applicaticm to (jua-sh
was jn'operly made by a rule calling on tlie cor-
poration of Harvey up<m a ccrtilied cojiy obtained
fromtiie clerk of Smith, the senior township. //(
IV Snilt mill till' (.'orpunition of tin- Toirii-slilj> of
llnriu-ij, 2(> <J. B. 32.
A sale of lands made before the S Vict. c. 22,
in the district of Col borne, for arrears of taxes,
lart of which had accrued due before the divi-
sion of the district of Newcastle, (of which (!ol-
boriie was formerly a part), was lield legal. Mc-
r,ean, .1., diss. Diw d. Tli" EnrI Dt'Miiiiiilcn'ilirl v.
(,'rom'i; 4 Q. B. 2'.i ; followed in Cutti'i- v. Siillwr-
Innil, 18 C. P. 357.
"Where taxes had accrued due on certain lands
in the county of Bruce, buforc se])aration from
Huron, which took ])lacc on 1st .lanuary, ISO? :
— Held, that tile treasurer of Huron, after the
separation, could not advertise and sell such
lauds f(U' these taxes: — Heli!, also, tliat the .sale
was not made valid liy 32 Vict. c. 3(), s. l,")."), O.,
fur it only applies to (lee<ls given by the sheriff
or treasurer authorized to sell. Tin- CiiiIikIii
I'iriii'iiiiiit Jliiililimi Mill Suriiii/.i Such-lii v. Ai/-
iirir, 23 C. V. 200. '
Sec .S';/i/7/( V. Till' ^fiinii''ijnil Cnlinril iif'r-i:i-
a,it ami /.*(/.««'//, 10 Q. B. 282, p. 2478 ; /I'nibia
,xM. Carroll V. Bickinth, I P. H. 278, p. 2430.
See, also, XVII., p. 2507.
\ Other Matters.
act abolishing aistrictsaMn.
defenaaiits tTie lumc g unH
barter. ^^"!''".'/> v ,„',/, 91
:o. of the District <'fy<=""'^'"'''
II. Mkmiikks (IK Couxcir.s.
1. Qimlijlrafion of.
(a) Propertij and A.i/<i'.i.iitient.
It is not necessary under Vict. e. 75, s.
13, that the property on which an alderman
iiuilities should be assessed in the luime of the
jiLTsoii po.ssessed of it to liis own use. A landlonl
ia so possessed whose tenants occupy the])remises,
;uid he may put toifethor real properties, some
occupied by liimself and some by tenants, to
make u)) the assessed value rciiuired. Hi'ifma
I'.r nl. Shaw v. McKenzic, 2 (1 L. Chainb. 3().—
Draper.
Under 12 Vict. c. 81, sec. 05, as amondecl by
14 & 15 Vict. c. 10!), candidates for town coun-
oiUors must be not only assessable but assessed
for the necessary amount of property. Reiiina.
>■£ ri'l. Metcalfe v. Smarf, 10 Q. B. 89 ; -S'. C.,'2 C.
L Chainb. 114. Byit sen Beiiinaej- rcl. Lauijhton
V. Biilti/, 2 C. L. Chamb. 130.— Burns.
152
The (lualification necessary for a town c(mn-
cillor for Bytown at an election held in .lanuary,
1851, is that set forth in 10 & II Vict. c. 43. s.
5. He must be an inhabitant iiouseholdcr.
Ri'ilina ex rel. Ilerreij v. Seult, 2 C. L. Chamb.
88.'— Draper.
Defendant having been elected aldcnnan of a
ward iiiToronto, relii^l for iiis c|ualitieation, under
IC Viet. c. 181, s. 18, upim three leasclidld )>ro-
pertics. The first was a liouso for which he had
I been rated in the collector's mil for the jirucuding
[year at £35 .annual v.alue, but in which lie had
j ceased to have any interest since the Juno before
the election : - Held, not availalili', for the ijiial-
iHcatioii must bo held at the time of election.
/fiijiiia i:i- rel. Di.rin- v. (,'oiraii, I P. Pi. 104. —
Itobinson.
The second was a house which be had taken
alter giving up the lirst, and for which he was
assessed as occupant at i'45 aiinnal value: —
Held, a good ipialitication to that amount ; and
that it was no olijcction that tlic defendant had
not held this jiroperty for a ynir when elected,
for the statute refers to the extent of the interest,
and not to the time for which it must have been
lieM : — Qua're, whuthur there must be a year of
the term yet to run at the time of election, [h.
The third ])roporty consisted of rooms in the
second story of a house, with a separate entrance
fnmi the street, rented by the aefcnaant and one
T. as i).vi'tuors, and occupied liy them as a jiriiit-
ing ostablishnient. aii<l for which they were rated
.as occupants at C()5 annual value. It was sworn
that by an agreement between ilefendant aiidT.,
made in November before the election, the whole
assessment was allowed t" be <'lnr^'eil to defen-
dant's .account, and that he had assumed ,aiid
was ready to p.ay it : — Held, that if defendant
could be treated as separately rated at all, it
could only be for half the annual value -and as
this, added to the lirst ijroperty, would not make
up the €80 re(piired by the statute, he was dis-
(jualitied. It was therefore unnecessary todetor-
luiiio whether the last mentioned property was
of such a nature as to all'ord a i|nalilication within
the terms of the act. 1 h.
An alderman elect, though rated for IS(!3 to
the amount of 8344 on lease!.. ild iiroperty, yet
since May, 18()3, h.ad cease<l to hold part ot the
])roperty to the value of .SI (10 per annum : —
(Jmere, whether the (|ualilication set out w.a3
sulRcient, llegiiia ex rel. Dexter r. (iow.an being
opposed to such a coiiclusio:i. In re Kelbi v.
Macaroir, 14 C. P. 457.
Property owned by a candidate, but not men-
tioned ill the assessment roll, cannot be made
available .as a (lualiticition. Reijiua e.r rel. (Uir-
roll v. Uiekmth etal., 1 P. R. 278.— (", L. Chamb.
- -Kobinson.
The 14 & 15 Vict., c. 100, schedule A. 1(5,
which requires the assessor to wt ate in the roll
how iiiucli of the amount assessed to each person
is frcelndd and how much household property,
is directory only ; and the (unission to comply
with it is not necess.arily a fatal objection. Jh.
Where more than two persons were rated on
the collector's roll .above .i;i(K) as freeholders,
(and therefore ipLalified for township councillors,)
but it .appeared that they were not freeliohlers,
but holders of location tickets from the Crown,
.and further that there were not in fact two per-
2419
MUNICIPAL CORPORATIONS.
2420
soiiH tjiinlifiuil to be elucteil : — Held, that the roll
WOH not eoneliisive ; l)iit iih it was ahuH'ii tlmt
there were not two j)erson8 in the township
<{unli(ie(l, tlie relator was preeliuled from objeet-
ing to the iiualilication of those eloeted. Jfciiina
,:•■ n/. Tilfir v. Alhni, 1 P. K. -214.-0. L.
C'liand). — ItobinHon.
Tlie a.s.sessnient roll w eonelusive as to the
ratiny of those mentioned in it. lieiiiua cj- rcl.
Fliii'lt \. Scminii/ii', 5 P. K. ID.— C.L. Chamb.
—J. Wilson.
An administrator eannot nualify on real estate
assessed in his own name bnt belonging to
deceased, h'ti/iiid I'x ret. Slock v. DariK, 3 L. J.
128. C. L. Ciiamb.— IJiehards.
Where, on the assessment roll, nnder the
general heading, " Names of taxable parties, were
entered the names of "Ker, William and Henry"
for two separate parcels of land, in the jiroper
columns were the letters "F."and "H.," and
in the column headed "Owners and address"
was entered opposite to the parcels of land and
the names in the first column, " Wm. Ker &
IJros.": Held, 1. That "William Ker and
Henry Ker," and not "William Ker & Bros.,"
were the persons in whose names the properties
were rated. '2. That sec. 80 of the Xlunicijial
Institutions Act, (_'. S. U. C. c. 54, as to joint
aasessments, though placed in the act under the
head " Electors, " extends as well to candidates
as to electors. I'lijiiHt ex nl. MvGnijorw Kerr,
7 L. .1. ()7. — C. L. Chamb. — Draper.
Where defendant in November, 1858, conveyed
the real estate, which formed his qualitication,
to his father for t'300, for which he took his
father's notes payable .at distant dates, and in
Fe))rnary, I8(i0, purchased the property back,
returning to his father all the notes, though the
father did not re-convey the property to the son
till 3rd of October, 18(i0, yet the son was held
to have had at the time of the assessment " an
eciuitable estate," within the meaning of sec. 70
of the Municipal Institutions Act. L'ci/ina ex
ri'l. Ttltw. Chyiu', 7 L. J. 99.— C. L. Chamb.—
Draper.
The town of Clifton was incorporated by
special act (19 & 20 Vict., c. (!3). It was subse-
quently divided into three wards ; thus entitling
the tovi'n to nine councillors and a mayor. At
the election in .January last there were not more
than seventeen persons in the town (pialified
under sec. 70 of the Municipal Act, C. S. U. C.
c. 54, for Councillors, so that there was not, in
the langu.ige of sec. 72, "at least two persons
qualilied to be elected for each seat in the coun-
cil," though there were more than two persona
qualified under sec. 70 to be elected mayor . —
Held, that the mayor holds a seat in the council.
Held also, that no greater (lualification is required
for mayor than for a councillor. Held also, that
the only qualification requisite for a person to be
elected councillor, owing to the peculiar circum-
stances of the place, being that of elector, a per-
son elected mayor, and possessing the last men-
tioned qualification, was sufficiently qualified
under sec. 72. Ri'ii'inn ex rd. Bender v. Preston,
7 L. J. 100.— C. L. Chamb.— Burns.
On quo warranto, to test defendant's right to
the office of reeve ; — Held, that a person having
the mere possession of a lot vested in'the crown,
determuiable at any moment, has not such an
estate in it as will (pialify him under the muni-
cipal act ; but he is, nevertheless, rightly assesKed
under 32 Vict. c. 3(!, sec. 9, sub-sec. 2, O.
Heii'wa ex rel. Liirhfonl. v. Frizell, (i P. U. 12. —
'J. L. Chamb.— l)alton, C. ('. ,f /*.
A lot was asfjssed thus ; " No. 25, H. H. Yeo-
ma?i, &c.," under the head "name of taxable
party," and then under the heading " name uiiil
address of the owner, where the party named in
column 2 is not the owner, "appeared the name of
the respondent. His name was not bracketeil
with that of H. B., neither was it stated in any
way to be a separate assessment : — Held, that the
roll shewed that the respondent was assessed for
this lot, and could (lualify uiwn it. / /(.
On 1st May, 1859, J. 1). leased certain pre-
mises to E. B. D. for five years, with a I'oveiiant
that the lessee should not assign without leave.
The lessee, with the assent of the lessor, assign.
ed the lease to defendant for the remainder of
the term. Defendant then verbally assigned
his right to the tcnn, and sublet to one P., who
entered into possession : — Held, that the assign-
nient of and oy <lefendant to P. being by parol,
and being without the knowledge of the Icasdr
J. D., defendant was notwithstanding it pro-
perly assessed in respect of the demised pre-
mises, lieii'uin ex rel. Xorthwood v. Askin, 7 L.
J. 1.30.— C' C— WeUs.
Held, that the real property in respect of
which a candidate for the office of alderman i:i
a city (jualifies, m.ay be of an estate either lei,al
or equitable, and it need not be free from iiicaiu-
brances. Jiei/hui ex rel. liltikeley v. Caiuvan,
I L. J. N. S.'l88.— C. L. Chamb.— MoriTsou.
Held, that the fact of a property on which ii
candid.ate seeks to (ju.alify benig incumbered can-
not be taken into consider.ation for the purixisc
of reducing the amount for which h'j appears to
be rated on the roll, which mus^, be taken to ]n-
conclusive as to his property (ju.aliiication. Tlic
distinction between real and personal proi)erty
discussed. Heijiua ex rel. Flaterv. I'anl'il.ior.
5 P. K. 319; Heiiina ex rel. Philhrirk v. Sinitrt, ',
P. R. 323.— C. L. Chamb.— Dalton, C. V. k P.
Held, that notwithstanding the use of the
word " estate," in the declaratitm of a candidati'
under the Consolidateil Municipal Act, 187.').
he is, nevertheless, (lu.alitied, if the r.ating of
the value on the roll is sufKcient in anioiiiit.
No change h.as been made in the law that in-
cumbrances are not to be considered in asuei'
t.aining the amount of riuiilification. Reti'imi e.i
rel. Bok v. McLean, « P. R. 249.— C. L. Chaiiil.,
—Dalton, C. V. ,£• P.
On an application to unseat one E. , sitting as
.an alderman for a city, it appeared that E. wa^
only rated in the Lost Vevised assessment roll at^
householder to the extent of $160. It was.
however, contended that no (pialification at all
was necessary, but even if so, it w.as sutlicieiit
that the (jualitication should be that of a council-
man under the former act : — Held, that it wac
necessary that candid.ates for the office of .aider
man should, at the time of the election for cities
in 1867, have had the qualification re(iune(I liv
C. S. U. C. c. 54, notwithstanding the 29 k .S'd
Vict. caps. 51, 52, and that a (pialificatidii .is
couucilman under the old law was insufficient
for an alderman under the new act. linfiwi ' '
rel. Tinning V. Edgar, 4P. R. 36.— C. L Cliamli.
— A. Wilson.
2\'li)
2421
MUNICIPAL CORPORATIONS.
2422
him un.ler the iniiiii-
uelesB, rightly asaeH^'.u.l
. <», 81U)-80C. 2, (>.
"'Frhi'll, (i V tt. 12.-
'. r. .1- /'.
i. " N<>.2.'), H. B. Ylmi-
cml "name of taxable
lie heading " name and
lire the party name.l m
"anpearetl the name u\
UHC was not hrackutod
ler was it stato.l in any
mmIt:-Heia,thatth.
M.iulent was assessed for
lify upon it. / ''•
D leased certain pre-
e years, with a covenant
„t assign without leave,
cut of the lessor, assigii-
iUit for the remainder ot
, then verbally assigned
nd sublet to one P., whc
—Held, that the assign-
ant to r. being by parol.
. knowledge of the kssov
notwithstanding it pro-
tect of the deniise.l pre-
Xurtliirood V. Axktn, , 1..
,1 vroperty in respect ot
: the ottice of alderman r.j
,e of an estate either lei,al
>ed not be free from uicam-
nl. lUokdeij V. CmiAcai,,
. L. Chamb.— Morn-soii.
of a property on which ii
alifv being incumbered cau-
nsideration for the purpose
mt for which Iw appears to
which must be taken to be
,roperty <iua!ilication. llu;
real and personal propeitj
L rcl FlaU'r v. I an I lA-cc.
hamb.— Walton, ('. <-. L F.
hstanding the use of the
[e declaration o a candidate
ited Municipal Act, l^..^.
l.malitied, it the rating ot
Ll\ 18 sufficient m amount.
fmadc in the law that ue
Ito be considered m ascei'
If fiualification. «<'.'(''"' '•'
[(iRll.249.-C.L.Clian.b.
to unseat one E.. sitting as
Vy, it appeared that K. ^va.
^fvevised assessment roll a^
extent of §160 It was
I that no Hualiticatioii at al
even if so, it w.as snthcien
li should be that of a council-
Tier act -.-Held, t'latitwa^
Ktes for the office of alder
Lne of the election for cte
he qualitication rc.l«>^^'l '.,
Ltwithstanduig the2KV.«'
T andthata<lual.tlcationa^
ihe ol'l 1*^ ^"^ "T**!"?
Kder the new act. /''.','''"";
1 4P.R.36.-C.LA"liaml'.
B. and A. were partners occupying premises
as co-tenants under a yearly teiiancy, on the
terms (tf an cxnired leiuie. Before tlie nomina-
tion day they (lissolved partnership, R leaving
the business and premises, of which A. reniainea
in posscsaion. A. shortly afterwards went into
partnership with S., and the new tirm then took
a fresh lease of the premises from tlie sanic land-
lord ;— Held, that M. was not at the time of the
election the co-tenant of A., the tenancy having
been surrendered by operation of law. Ji'i'i/iiia
fx rvl. AilauixMi V. Ji<iyil,4 1'. K. 204.— C. L.
Ghanib. — J. AVilsoii.
A person cannot (pialify as town councillor on
personal property. When a candidate was as-
sessed on the i-oll for real property to J^ToO (SoO
less than the iiualitication required) : - field, that
he could not sui)plement it by an .addition of
$400 assessed to him on personal property.
Hei/iiia vj; n'l. Fluctt v. Siinandic, 5 P. 11. 19. —
C. L. Clianib. — J. Wilson.
(b) Olhitr CtMea.
Whether, in disputing the validity of an <dec-
tion of a deputy reeve of a village, on the ground
that the village did not contain the requisite
number of freeholders and householders, they
could go behind tlie assessment, was not deter-
mined ; but the court granted a (pio warranto
that the (piestion might be formally raised.
R('(jina ex rd. JIart v. Limhaij, 18 Q. li 51.
Sec. 70 of the Municipal Act of 18.5!) required
that a person, to l)e (jualitied to be elected a
niem1)er of a city council, must bo a resident
within the city limits : — Held, that a person
whose family resided without tlio city limits,
and with whom for weeks continuously he lived,
coulil not, although occasionally lioardiiig with
an inhabitant of the city, be deemed a resident
of the city. Jicijina ex rel. BlaKilcIl v. lioehcuter,
7 Ij. J. 102.— (J. C. — Armstrong, lieijiiid ex rtl.
fkminij v. Smith, 7 L. J. G(j.— C. L. Ciiamb. —
Draper.
[Now by 8. 71 of the Act of 1873, it is sufhcient
to reside within two miles of the municipality.]
A defective declaration of (lualitication of a
candidate at an election is not a ground for un-
seating him by the summary process under the
Municipal Act. Rnfina <■./• vel. /fii/nfn/ v. Fi'i-rh,
6 L. J. N. 8. 2G6.— C. L. Chamb.— Dalton, O.
C. .0 P.
2. D'Mi/itali/icnIiuii.
(a) As an Officer of the Corporation.
[By C. S. U. C. 54, .V. 73, " Xo officer of any
muntclpaUtii" iraa iiiat/ijicd to he a number of
thf council. Xow hi/ the act of lS7,i, n. 75, the
jKirllciilar officers (IhvihaUjied are specljied, uh
they were aim by the. act of ISGU, k. 7 J.]
Under the old law a local superintendent of
schools, entitled to a salary to be paid by the
county treasurer, was not disciualitied. lieifma ex
rtl Arnott et al. v. Marchant, 2 C. L. Ohamb.
189.— Burns.
The mayor of a town for the year 1 858, is not
ineligible for mayor for 1859. In re Sawers v.
Stntmon, 6 L. J. 42. -C. C. — Boucher.
A mayor is not an ollicer of the municipality
within the meaning of 22 Viet. c. '.)',), h. 7H. /'<.
A solicitor who is acting in defence of suits
for a corporation is di.s(|ualitied for a seat in
the corporation. Itniiiin i .<■ nl. ('idninni v.
O'llare, 2 P. K. l8.-('. I,. < 'li.uub.- Hiiiiis.
An ovoraeerof highways was lield disini.ilitieil.
Reifuia e.r ri'l. litehiiKnnl v. 'I'lijar/, 7 !'■ •'• I2i\
— C C. — (iowaii.
Proof of the mere fact of ilefi^iidiiit being ii
road commis.sioiier appointed by eoiinty liy-law,
to expend moneys raiseil in and tor ISlil, tortile
improvement of roads and liridges, was Meld,
not necessarily to iiniily tliat lie was an "oltieer"
of tlie corporation, so a.s to niaki' him inebgiliK
to be elected in l.S()2, unless elearly shewn that
his duties continitud. lliiiiiin i .f nl. Armor \.
Caste, 8 h. .]. 290.- ('. I..' Chamb. Iliehaids.
A county clerk Held di.sciualilled under .s. 7;>
of 29 .soviet c. 51. from sitting as mayor of the
same or any o-her mnnieiiialitv. Hnfimi < .i- /> /.
Buye^x. Dethjr,4V. 1!. l!l.'>. " ('. I..'('lianib.—
J. Wilson.
(b) Ak LeiM'e or Li-i«ir of' the Cnrponttlon.
A lessee of a imiiiicipal council was disiiiialilied
fnnii sitting in such council ; so a person helding
a contract for a lease, though executed only ))y
himself, .and not by tiie corporation. Itiniiitt i.r
ret. Slock V. Dari.s, 3 L. ,1. 12S.— C. L Oiiamb.
— Richards.
[But now a lessee for twenty-one years or up-
wards is not dis(pialilied uniler the Act of 1S7H,
8. 75.]
Defendant grant(^cl a lease to tlic eoriioration
for five years, which lease, with the premises
therein mentioned, ami the benefit thtrefrom,
he conveyed to H. a few ilays before the elec-
tion. The assignment was, however, eiicum-
bere<l with a condition to refund the considera-
tion money on certain eontingeiicies, and no re-
veision was conveyed by the assignment : -Held,
that defendant was (lisi|ualilied. J>'(i/iiia cx nl.
Ron.'i V. Ra-stal, 2 L. .J. X. S. IGO.— C. L, Chamb.
— Hagarty.
Where a lease for twenty-one years was origi-
nally made to a third person for the beneHt of
the beneticial lo.iseo, and afterwards, during tlie
term, it was surrendered, and a new lease made
directly to the beneticial lessee for the remainder
of the term, which was for less than tweiitj^-one
years, it was— Hehl, looking at the real nature
of the transaction, that the lessee w.as not dis-
qualified. Ri'iuM ex rcl. Muck v. Mannhui, 4
P. It. 73.— C. L. Chamb.— Morrison.
See also lieifma ex rel. PotterMin v. Clarh, 5
P. 11. 337, p. 2425.
(c) Contracts ivllh the Corpriraliou.
Before the election defendant, an iildcrman.
hail tendered for some painting and glazing re-
(juired for the city hospital. His tender was ac-
cepted, and he had completed a portion of the
work for which he had not been paid. A written
contract had been drawn up by the city solicitor,
but not signed by defendant ; and he swore that
before the election he informed the mayor that
2423
MUNICIPAL CORl'OHATLONS.
2424
lit) (lid not iiitciicl to go on with the work: — | A diHjmtu iirost! iK'twecn a townshijt I'nuncil
Mi'ld, tliiit (Itfunihtnt was ilisiiualitieil ; that it | and the treasurer, wiio was iiai<t l>y salary in
was nnniatorial whotliur the contract wouUl he
hiniling on the cor])oration or not; and that hiH
di.schiinier coiihl liave no I'tl'ect. linjina tx rtl.
Mimi-f V. Mitkr, 1 1 (i. 15. 4(>5.
Wlicrc defendant, when elected aa councillor,
had a claini upon the city for certain work done
l)y iiini under a contract with the corjioratiou: —
llelil, diMi|iiidilicil. I't'jiiKi I .r n /. Da
< '((rnif/ii r.^, I I'. 11. 114. ItohiuHon.
V.
lie\i of pcniuiniteM of olhce, as to his duty to
funil certain jpercentages for seven years, for
the hcnelit of the township, during which lie
held oHice. He paid tlie percentages for two
ye.'irs under protest, and refusing to jiay more
was dismisscil, ami afterwards was electeil coiiu-
cillor, and liccaine reeve. Having, while iu
otiiee, given a liond to tlie corjioration, ;is trea-
surer, for the due performance of his duties, it
was Held, I. That tlur ilispute was a matte i- of
Where it was shewn that the lirni, of which j contract in the legal sense of the term. '_'. 'I'liat
defendant was a mcndicr, dealt in coal and wood, ' althongli ilefcndant was not treasurer at tiic tiiiie
,ind, during 18114 snpjilied large ([uantities of ! of the election, there then heing a dispute in good
iiotli coal and wnod to the cori)oration of theeity faith hetween him and tiie council, arising out of
of 'I'nronto, without any agreement as to price or i matters c(Uinec ted with his administration of tliat
terms of payment, the piice of which was unpaid ! olliee, he was disijualitied. Itn/uia t.r nl. Illiiini
at the time of the election of defendant to the v. Fiijn, (i L. .1. 44. -C. L C'haml).- Hagarty.
otiieu of councilman for one of the wards of the
city: - Held, that the difcndiint was disi[ualiHed.
So w here it was shewn that for a snuill portion,
vi/., ten tons of coal, tiicre was a tcmlcr made liy
Held, that the mayor of a town, though not
now elected liy the town eouncilliirs, is cipially
suliject with them to the (lis(|ualilications of the
Vet, hut that under the circumstances of tlii-<
the lirm m 1,S(.4, which had been accepted by the j,„j,^, .Iffendant could not he said to he interested
corporation, and the coal lurnished, hut the price I ),,. i,i,„y^jf „ ,^,.t„^,,. ;„ ^^ contract with the
rviuaiiied unpaid at tiie time ot the I'^'i'tion ,., ,,,^ti„„ Uniimi , .,- rd. F.jrsytl, awl J>oU, u,
Where It was shewn that the price %vas pan 7 i^_ j_ 'x.^c, C. -Wells,
hetore ileteiidaiit took nis seat, he was still. Held I
to lie dis(|ualilled, the dis,,ualilication having' \\ here defendant had heen aiipointed a coin-
relation to the time of the election, and not : ""ss"""''' t»r the cxiiemliture ot municipal funds
merely to the time of the acceptance of othco. 1 "1'*'" the roads and a certain commission was to
U'ljina I.I- I'll. Itiilli) V. JJiiinl, ',i V. J{. '.iot.
L. Chanil). --llagartv.
.\ claim hy defendant against the c(U'i)nration, i- ,•,. ,
1 - ■■ 1 • I i i? • 1 i. 1 r 1.1 disijualilicd
lioiia tide assigned to a tliird liarty, hetore the I , V u i
he paid to him for his services, of which some
portion reinained unpaid at the time of his elec-
tion as a niemher of the council, he was held
llii/tua 1:1: ril. aMcMiiI/i n v. Jh
nieii to a tiiiiu iiarty, uetore tlie 1 » V ., 1 1 ,>fii ,< t tn . \ n- 1 1
' . 1- ,•,. /)' ■ ; If ; i Liilii; S L. .1. 291. — V. L. Chaiub. — Kichard.s.
ot clis(|iialitv. llniiiiii i-.r ril. MacK\
ird party, he
election, doei not clis(|
v. Maniiid^j, ■[ J'. 1;. ;;>.--(.'. L". ( 'hamh. Mor- ! <'ii '27th .June, ISOl, a hy-law was pa>s(d i,y
rison. | the county council of Kssex ajiiiropriating Sl*,."it;f
A inciuhcr of the corporation, himig a hiker, ' f'"" *''" in'Vnpyenieiit of roads ami hri.lges iu the
who supplied bread to lill a gaol contract hehl : ^'"."".*y' '""l that the delcndant a.uH. be cm.
by an
It. «0.
.V another person in his own name and for his 1 ">i«»i'>."^?'« t" expend the .same, and that simli
nvnbcnclit:- Held, not dis.iualilied. A',,/,-,/,, .,,- ' ^'•""""s^""'^'''-" ^''""I'l ^-^'-fy^^ three per cut,
■(CI upon all contracts entered into by them, undc r
''' j the by-law. (hi 1st December, ISIil, defendant
received all the money he was entitled to in
respect of his services under the by-law : I KM,
that any contract which the coriioratiou mailc
nl. I'iildiiiijliiii v. Itiildill, 4 1'
I'hainb. — Morrison.
A pcrsion is not disipialitied, if he be plainly
nc(|uitted in equity from the contract, and a
sealed instrument is all that is reiiiiired to per-
fect his di.scharge at law. 1"he rights of the
oaii'lidate must be looked uiion as they are in
substance and cfl'ect at the time of the election.
niijhia (.-■ nl. J/i/l \: B,Us, 4 1". 1!. 11.3.— C. L.
•Jhauib. — A. Wilson.
The truiti.cs of a KJiiuaou school in a town
being about to erect a school house, the defen-
dant oUcrcd to siH]i])ly a certain (]uantity of brick
to them for that pur))ose. They told him that if
the town council wouhl agree to pay him for the
bricks they would take them. He then said that
hi! wouM take payment foi' them by letting the
with him having been fully performed by tlic
payment of his commission iu KStil, liewasiidt
disipialitied. Jfn/iiKi 1 x nl. Arniur v. Om/i, S
L. J. '-"JO. -0. J..' Chamh.— Richards.
A shareholder in a comiiaiiy in which the
council holds stock, and which had bdiiinvtd
ruoney from the council and secured the repay-
meiit by mortgage, was disiiualilicd. lin/nini
rcl. Cdliniaii v. O'/Zinv, anil otiiir rnir.'t, '2 V. II.
18.— C. L. Chaml).- Burns.
So also a stockholder in a gas company wlmii
has a contract with a municiji'il corp'Tatinii.
amount go against his taxes in each year, with linfnta vx nl. Jiiinlnii v. Vuunlii; 1 L. .1. (IS. -
interest at eight per cent, upon the whole amount
unpaid. This proposition was made by defeu-
ilaiit ill person to the town council, and was ae-
cepteil by them, and defendant' furnished the
bricks : —Held, that defendant was disiiualitied.
A'l'ijiiia ex nd. FliO'll v. (JiiiU/iii-r, 5 P. K. 24. —
C. L. Chamh. — J. Wilson.
A township Ciiuncillor being a'coiiti'actor with
the county, and having been elected a deputy
reeve, was — Held disijualitied for the county
council. Jidjina ex nl. Littz v. WUliamion, 1 P.
il. 94.— C. L. Chamb.— Burns.
C. C — Mackenzie. But see now the Municipal
Act of 187.S, sec. 75.
A surety by bond to a corporation for tlicir
treasurer, and to the treasurer for the colkctDr
of taxes, is disijualilied, as is also a party "I'lis
acting as their solicitor in the defence of suits.
Reijina I'.r. rvl. C'oleiiuin v. O'l/an', anil ulhf
(•((x,.s 2 P. K. 18. -C. L. Chamb.- Burns.
Where defendant was surety for the treasurer
for the municipality for 1858, and the .siiiiio
treasurer was re-appointed from year to year
during 1859 aiid 18G0, the acceptance of fresh
■ »■• '^' -"-•■■^^
2424
en i\ t()\vi\HUii> council
Vkt, iiH to liiH .liity to
s for Hcvtai y^;lil•^^, for
lio peiL'Clitiiyoa tor two
I rofiisiug to i.ay moru
war.ls \vii<( elL'i-ti'.l louii
^•e. Uiiving, while iii
1„. coriioration, as trtsi-
nuiiuee of liis (luti.'s, It
.liMiiiito was a matti'r ot
so of tho term. '2. 'IMuit
nottroasinvratthetniu'
.iil)fin«aai»imteinnoM.l
the eouueil, arising out.. t
his aaniinistrationo that
,,1. A'M/i"" '■'•'';■ '''"'"''
;. L. Cluuub.- Uagarly.
:,r of a town, though n.it
ni eouncill.irs, is v>\nMy
lu' (lis.iualitieations of the
till, ciivuiustauees ot tllH
,,tl.esai<ltol>eiutereste.l
in any contract with the
ells.
lul heen avpointed a e..iii-
wliture of niuuieii.al tuii.ls
t-ertain cnuuissKMi was t.)
is services, of which some
ai.l at the time .)f his elec-
the council, he was hel.l
,.,■ ,-,/. McMMn V. 1)>-
V. L. Chamb.— lUchanls.
;l, ahy-law was pHssclJiy
Kssex api'ropriatiiig S'2,.iU
„f roa.ls ana hri.lges in the
.lefcn.lant aiuH". he ci.i-
I the same, an.l that siuh
,1 receive three per cent.
utere.1 into l.y theni uu.l. r
December, IStU, . etcn.lant
ucy he was entitled to lu
suiuler the by-law: lUl. .
hich the coriioratiou lua.lc
;un fullv verformc.l by the
mission in 18t>l, ho was not
ril. Ai-mo)- V. tnnlv, b
lamb.-Uichanls.
a company in which the
auil which ha.l born.wcl
,'iKil ami secured the reiiiiy-
^vas disqualitied. U'iW'^lf
„,i,l otiiir i-((.sr.S '- I • !'•
. ;urns.
der in a gas company winch
, a nuniicipal corii..r:iti..ii.
on V. Coiiutrr 'i l-/-!'^' ;,
lUit see now the ]SIunKiii;U
ft
,1 t.. a corporation for their
he treasurer for the colleot..r
ilied, as is also a party ■■•.lb
eitor in the defence .•! suits.
r,„„„^ V. O'Harr. <""'"""'
C L. Chamb.- Burns.
C was surety for the treasuicr
'ty for 1S58, and the s:ii,ie
,,mointed from year tn ya
8G0, the acceptance of ii""
2425
MUNICIPAL CUKPOUATIONS.
IV2C,
l,n;
k
b
l><)ndH by tho municipal cori>oration for thu latter
years did not rele.vsi^ the Hiireties to the bond of
1H."»!S, and that it biMiig a continuing security was
not neccHsarily release.l by tlit^ acceptance of new
bouils. liiii'tiiii I.I- I'll, t liiiiiitiiiii V. Mi'Mii/iiiii,
7 L. J. 15").'— C. C- Leggatt.
Where defendant 'it tin; tiuii^ of his election to
the ollict^ of uiayor for a town was shewn to be a
party, as surety, to a bond given to the eor[)ora-
tion for the due pi'rforniance of his duties by one
(if its otlicers, he was helil disciiialilied. Itiiiimi
,'j: yil. Ml- Li nil v. Il'.i^o/i, 1 L. J. N. ,S. 7I.C'.
L. Chamb. Morrison.
The treasurer of a township was appointed by
annual by-laws, w hiih were sdeut as to time, in
lS,")!t, KS(;(), and ISC.l. In bStil the defendant
became his surety by iioml, whiih, however, did
not state the duration of the 11 '.bility. In IStl.'t
the same treasurer was also apiioiutcd by a
similar by-law. In ISUt, tiie by law limited his
liability to tiie year 1S(11. I'"r..iu thciue to ISdH
no time was specilic.l, but his term was then
limited to that year. In iMi'.) the ticasiirer's
accounts were audited and louii.l collect : -Held,
that this boiiil was only a continuing security
until the e.\|iiratioii of the treasurer's term of
ollice, and that the liability ceased on his re-ap-
poiutment in IHIi;}, and that tlurtifore the defen-
dant had Hot a contract with tiie corporation so
as to dis(|iialify him as a councillor. Uni'uiii i\i:
irl. Font V. JlrJ^di', o V. K. ;{0'.t.— t'. L. Chamb.
— Mtirrisoii.
An agent of an insurance company paid by
salary or commission, who both before and since
the last muiiicip.il election in the city of 'I'oidnto
hail, (111 behalf of his coiupauy, ell'ectcd insurances
on several piililic buililiiigs, the property of the
coriioratiou, and on several i.immoii school
buildings within tiie city, and who at tiie time of
the election had himself rente. 1 two teiieineiits
of his own t.i tiio iioard of seliool trustees for
c.iliunon school purposes : ^llelil, iiotdisi|ii;dilied.
Ji'i'jiilil ('.;■ I'll. lildJ'J V. Siiii/ll, 1 L. J. N. S. 121).
-C L. I'hamb. — Hagarty.
The statute dis.(ualifyiiig .i contractor from
sitting as a councillor of a municipality .Iocs not
act should lie bindiii!,' on
th
thivr, Ti i'. It. •_'4
The corporation by by-law granted to defeu-
ilaiit, upon certain con.litioiis, a right to build a
ilaiii and bridge across a river, in coiisiilerati.iiiof
wiiich he agreed to keep it in repair for forty
years at his own exiicnse, liut if he should make
default tho privilege granted by tiie coiimr.ition
was to cease. The dam and bridge were built.
rei(uire that the contract should lie binding on
the corporation. Itiijlna r.r nl. Fliiitt v. (i'((»-
" ('.' L Chamb.— .1. Wilson.
in the inn, oceiwioiially attcii.liug b.ir ,is before
the lease : Ikld, I, that if the Iransfir of the
liusiiie.ss was ill g 1 faith, it was Uii vali.l ob-
jeetion that the object of it was to enable di'fen-
dant to be legally elccte.l town .■..iiii.illor. 'J,
That till! [larties to the * '• '
- 1— — - traiisacti..ii haviii;: ex
pressly ncgative.l collusion or w
the lio.irders iii the Ik.ii.si
lint. if gooil faith,
had
iind
have been b.ina lide, ami the defcnd.aiit, there
fore, was eiitith'd to his scat. Hniiiui i .r ;•,/.
VnrJ.rv. Till/Ill,; li I,. .1. liO. ( '. li. ( 'hamb.—
liicharils.
A man may be an iiiiikceper though he take
out a license in the n.iiiic ..f aii.ith.r, ami if he
does s.i fr.ni.liileiitly he is ilis.|iialitic.i to be a
municipal councillor. Mrh'm/ v. Urmrn ."i 1, ,[
1)1.— U. C- Mackeii/ie.
Hclil, not necessary iiuder ( '. .S. \'. ( !. f.
."il, s. 7;^ to constitute an iiinkec|icr that he
should be licensed: llcl.l, also, tii.it uheiea
canilidato for couiicillor was an innkeeper, but
sold his interest as such tin' .l,iy ou which the
electioii took place, but there w.is no actual
..1..,., { :.... 1. i.:ii .... • 1
change of possession, he Was still an innkeeper,
and as siieli disi|iialiticd. It< <j'ui'i i.i' ,;l. I'lnnn-
ijdii v. McMiihnii, 7 1.. .1. 1,")"). — C. (.'. — I,eggatt,
» fis iji; ijdov;. 1 11^ , 1(1111 tkiivi iriiM^L: i>i;ivj ifuiiu,
and duly kept in repair by defendant :-Jlehl,
1. Tliat the defeiiilaiit was interi.sted in a con-
tract with the coi'ti.iration ; '1. lint tlnit he was
nut dis.|nalilieil as a niunicipal councillor, the
contract amounting to a lease from the corpora-
tion of upwards of twenty-one years. Iliii'iiin
ff nl. Piiltir.sou V. C'larL-i; r, V. it. ;«7.-(J. L.
Chaiiib.— Ualton, V. C. .O P.
(d) An liiiikfcjii r.
Deten.lant, being an innkeeper, ou tho evo of
the election le:ised the inn to a person who was
f.iriiiia'lj' his b.ir-kee|iei', and n.itwitlist:in.ling
tht lease himself and family eontinued to live
(e) Ot/ii'i- Cixi'M.
Hel.l, tli:it the objection of alienage taken to
the relator in this case, w,is not sustained. A'. -
i/illil i:r nl. CiiliiiKiU \. (l'//iirr; li'iiilmtirnl.
Pwlicillv. Stewart it ill., •> I'. I!. 18. ( '. L.
Chanil). —Hums.
St'c. 73 of the act of bS ill provi.le.l for the
" distiiialilicati.m" ..f members; other sections
for their " (pialilicitioii." The act w. is to take
ellei't on the 1st .lanuary, IS(i7, exce[it, among
other things, s.i niiu.'h as relates to the .[ualilica-
tioiis of elei^torsan.l caii.liilates, which was post-
poned till 1st ScptcMilicr : -llehl, that s. 73,
came into force on the 1st , lanuary -" disipiali-
tieation" not being iiiclii.leil in ".piililicition."
liiijiiin r.r ril. Murk- V. Miiiiiiiin/, 4 1'. U. 73. —C
L Clianib. Morrison.
The non-payment of taxes by a eaii.li.late be-
fore the electioii dis,|u:ililicd him, under ■J'.) I't 30
Viel. c. Ti'J, s. ",'{. Ji'i'i/iiiii i.i: ril, Aiiniii,<iiii v.
nni/il, 4 p. It. L'Ob -(■•. L. Chamb.— .J. Wilson,
lint sec now the act .>f l.S7.'{, ss. 77, 10!).
An Indian, who is a Uritisli siibji'ct, and other-
wise (tualiiicd (in this case by hoi. ling reaK'statu
ill fee simple to asullieieiit am.miit,) li:is an ei|ual
right with any other British snlije.'t t.i liohl the
position of reeve of a muiiicip:ility, even though
not enfraiicliiseil, and though receiving, as an
hi.lian, a portimi of the aiiuinl payments from
the common property of his tribe. Ilniiini r.r
rrl. (Ilhl, V. W/iitr, .-)'l'. i;. 31.-I. -C. L. Chamb.
— Halton, ('. ('. ,l'. /'.
The respondent, who h nl been returned as
reeve at a previous election for 1S74, ujmn a trial
j on a «rit of 4110 warranto was fouml guilty of
I bribery iudiruetly, by other persons on his be-
»427
MUNICIPAL C'OHPOHATIONH.
212H
SJ
Imir, ^\itllill tlic iiK^iiiiing of 3)1 Vict. c. 48, h. \M,
()., ami liix clri'tinn was ili'i'larcil vnid. Ifu wiih
a;;aiii cluitfil, tlic rclatur )ifiii>{ tli»! (ipiinHing can
iliclate. Till! ivlator wmiglit I. To liavo tlio
I'luctiiiii (if tliu icHiPdinli'iit (li'clari'il void, anil
'2. T"! liuM' liiiMMilf ili'cliiri'il to l)c duly ulccted :
Held, I. That indirrct lirilicry wan witiiin the
meaning of h. I." iif the act, and that in ciihhu-
iiuciici) the rcniKindcnt wan rendered iiieligihle
liy the tinding at the liiNt trial aH a camlidatc
till' two yearn ; -. That tile renliondeiit heing
ineligilile, the fact licing well known to tiiu
cleetorM, all voten given for hiui were thrown
away, and the relator, having the next highcHt
nuniher of voteH, waM duly elected, /iim/h v.
SiHlivilaiul, 10 L. .). N. S. :J87.— C. C.-Clowan.
Jll. MlNK'Il'.VI, ElKI'TIONH.
1. ElirlorH.
(a) Qualijinilhw of Vulcrn.
The copy of the collector's roll, which l>y 14 &
].') Vict. e. 10!», Hch. A. No. VI, sliouM he fur-
nished to the returning oliicer, is not couelusive
uiioii a judge when olijectiouH are made to the
iiualitiiatioii of votciH. .\ party (the gaoUtr) who
lived ill apartiiieiits in the county gaol, paying
1111 rent, and heiiig les.sec of lanil rated at the
animal value of t'lO 4si., was -Held not untitlc<l
to vote, a.s not lieiiig a householder within 14 &
i:> Vict. e. lO'.l, .si'i. A. No. 12. /// /■- Vimrk'K
\. LiwU ft ill., i C. L. t'liamb. 17I. — Burns.
\. had his dwelling-house at Bowiiuvnville,
where his wife and family resided, hut he had a
saw-mill and store and was postmaster in the
townshi)! of Cartwright, whicli occasioned him
frei|uently to visit tliat place, ami while there he
used to hoard with one of his men in a house
owned hy himself. After voting at Bowmanville
he went down to Cartwright, and voted there
also at the election for the township councillor,
w hicli was being held at the same tniie. It ap-
peared that the relator, one of the candidates for
( 'artwiight, ohjected to A.'s vote there, hut
.said that it should l)e accepted if he would swear
that he waij a resident ; and that A. took such
oath, and his vote was thereupon recorded : —
Tlelil, that A.'s vote should have been rejected,
lor he was a resident of JJowmauville, and en-
titled to vote there only, and his conduct in
voting there iirst shewed that he regarded that
as his home. livjiiia t-x rcl. Tdi/hr v. C'lesar,
11 (,>. B. 401.
The inclination of the courts is to favour the
franchise. Where the votes of householders
were attacked as not being householders resident
for one month ne.xt before the election, and the
fact of non-residence was not clearly shewn, the
\-otes were sustained. Ufiiina ex rd. Ford v.
< •otiimjiiam, 1 L. J. N. S. 214.— C. L. Chamb.
— Morrison.
A person otherwise diily qualified to vote at a
municipal election is not (lis([ualitied by the
simple fact of a change of residence from one
ward to another in the same township. Qucere,
as to the distinction between mere "house-
holders" and "tenants," for the purpose of voting
at a nnmicipal election. Jie<jliia ex rel. Ltitz v.
Hopkins, 7 L. J. 152.— C. C— Logie.
In the case of a city divided into wards, where
a voter is entitled to vote in the ward iu which
I lie rekidcR, hu in not untitled to vote in any other
ward. Amm. 8 L. J. 7« C. C— MeKeii/.io.
I [Now the law is otliurwisu, by the Act of IS73,
H. 80. ]
In the case of a houstdiolder, residence for one
month next before the election is an essential tu
4ualilication as a voter. / li.
I It is necessary that a voter, whether free-
holder or householder, should not only be rated
as such, but at the time of the election hold the
I property in respect of which he is rated //).
Held, that wlierea party slejit and lived during
the week days in a house with other parties
having one common entrance, while his wife and
family resideil at a village a few miles distance,
he was entitled, under the .Municipal Act of 1S4!>,
to vote as a resident liouselud<ler in the village
where he lived during the week. Hrijimi rj: n(,
Fvnvnril v. liavlilx, 7 C. P. MS.
Held, that under an assessment of "Thomas
Bnrrell & Sons" the Iteturniiig (Hlicer did wrong
in receiving the votes of the father and the
three sons, as the latter could not je said to lie
"severally rated " on the roll within Mieineaiiing
of ('. S, U. V. c. 54, sec. yr) : Held, ai<o, that the
returning otHcer did wrong in ricciving the
vote of Thomas Burrell who at the time of the
election was not either a freeholder of the niuiii-
cipalitj' or a householder resident therein for one
month next before the election : — Held, also,
that in the ease of a householder, residence in the
particular ward where the party tenders his vote
IS not essential — residence in any part of the
townshi)) being for the purposes of voting siith-
eient : — Hehl, also, that a person born in New
York in 1830, the son of a British subject who
had emigrated from Ireland a short time previous,
and a year or tw<i after his birth came to Ujipcr
Canada when he was only about two years old,
and where he has ever since lived, is himself a
British subject within the meaning of sec. 7">
of the act : — Held, also, that a person living
with his father on the land of his father,
having no interest of any kind in the land, is not
entitled to be assessed in respect of the laud
either as a freehoMer or householder, licfina
ex rcl. Mc.Ve.anw Graham, 7 L. J. 125. — (,'. L
Chamb. — Robinson.
The mere entry of a person's name on the
assessor's and collector's roll, with F. or H. set
opposite, <loes not entitle such person to vote.
Besides being properly rated on the roll, a iicrsoii
to be entitled to vote must be in fact a frcelioMer
or a householder, and also living in the ward at
the time of election. Reqina ex ret. Tufleit v.
Jiemi et al., 4 L. J. 262.— C. C.-Chewett.
The assessment roll as to the qualiticatioii of
electors held conclusive, lieii'ma ex rel, Funl v,
Cottinijham, 1 L. J. N. S. 214.— C. L. Chamb.
—Morrison. Jieyiua ex rel. Chambers \. AUitan,
lb. 244— C. L. Chamb.— J. Wilson. Anon. 8 L.
J. 76. — C. C. — Mackenzie.
[It is now expressly made so by the statute of
1873, s. 77.]
A township council cannot declare the (quali-
fication of voters. A by-law enacted for .such .i
purpose was qutished with costs. In. re Hill ami
the Munic'ipalitij of the Toicnahip of Manirm, 3
C. P. 399.
.,1 to voti! ii> fi'iy "i''i""
l'_ c. — McKfii/.H).
10, bytbo Actof 1873,
l.lor, ronitleiicc forouo
jtictii i» "»' e»»""'"" *'>
Ih.
voter, whether freo-
ouM not only he iute.1
,f the election hol.l the
ich ho i» rated / ''.
V Hleut ivjul liv«<l (lurin«
iiHc with other |.artieH
,vnce, while his w.tean.l
,e a few niileH dlstaiiee,
L^M«..ieiiMaAetoflH4!..
iHchohler in the village
,c week. /^■;/'"" ' ■'■ '' '•
. V. r)»n.
vsseHHnient of '"n.on.as
turni.i«(Hneer.l..lwnmK
„f the father au.l the
r eoul.l not .e sai.l to he
^e roll within MicmeaimiK
7r,.,.Hel(l,ai'(), that the
wrong in receiving the
who at the tune of the
,v freeholder of the nnini-
er resident therein for one
,0 election :-Held, also,
useholder, residence ni the
the party tenders his vote
lence in any part of the
,e .mriK.ses of votu.g Hulh-
hat a person born ui New
,uof a British subject who
Lland a short time previous,
• his birth came to Lpper
, only ab.mt two years ..Id
,r since lived, is hnuselt_a
the meaning ot sec. /->
Llso, that a person livn.g
■^the land of bis father
any kind in the land, IS no
,1 in respect of the laud
„r houaebolder. IH'M
„,„„„, 7 L. J. 125.-C. L
f a person's name on the
UUwitli F. or H. set
iititlc such person to vote.
Yratedontboroll,ai.ersou
mustbeinfactafreeliolder
also living m the wanUt
Hc'iiim I'X rd. 1 often v.
62.— C. 0.— Chewett.
,,11 as to the (lualifieatiou o£
ive. lie'jiiia ex rd. ford v.
N S. 214.-C. L. Lniaml).
exrel. Chambers y.All^^'i',
B.__J. Wilson. Anon, a i^.
Lcnzie.
y made so by the statute of
iil cannot declare the quaU-
IA by-law enacted for such a
Itwithcosts. /»'•;«'«:''"
\he Towmhip of Manvm, 3
1121)
MUNICIPAL (OKPOHATIONS.
2i:U)
Hi^ld, that in a iniinicipality divided Into I
wards, a voter cannot vote in a ward in which |
lie is not asscMscd for real jiroperty lying in the
wanl : Held, tiiat a municipal council has no
autiiority to place naniiis on the aMHcssnient
roll, after it is finally passed liy the revising tri-
bunal : Meld, that it is wrong in a municipal
clerk to add a name after the eommencement
of an election, to tin; co)iy of the roll furnislicd
by him to the ri^turiiiiig otiicer. Hnjinn i\i-
rd. C/inf V. fjili, 1,11,1 L. J. »i!l.-(,'. C. Mac-
kenzie.
Where a voter had jtarted with the property
in respect to whi<'h lie voted before the time of
the election ;- -Held that he had no legal vote.
Ili'ijinii c.r ni Liitiv. /Idjikiiin, 7 lj. il. li")-. -('•
C'.— bogie.
.Sue also lli'ijina vx rtl. Wallin v. BuHttoick, 2 L.
.1. 1G4.
(b) Krrors or (hiiiMnioni in ri'!<i><'rf to C'ullector'n
unit Annemor'n Itoll,
Held, per Ibirns, .F., (and confirmed on appeal
to Q. li. ) that under 12 N'iet. c. SI, jiersons on
the collector's roll, tlioiigh omitted accidentally
or otherwise from the verilied copy of the roll re
ijuired to be furnished to the returning otiicer at
' 'g ' ' _ .' .
to vote : Held, also, that persons in the copy
tile opening of the electi(Ui, are
iirmng (
legally
entitled
if the roll, though not on the roll, are not en-
titled. H<(jin(t i:r rd. HilHwdL V. Stviilwrnon, I I
(,'. L. Chamb. 'J70. -Burns.
Where the returnins.' •" ■ was not furnished
with a copy of the collector s roll, as re(iuired by
14 & I") Vict. |^ 10!), sell. A., No. 12:— Hehl,
;in irregularity ■ which the election might be
aviiided, when tiie ol)jection was taken by one
(|ualitie(l to urge it, although it might not ipso
fiicto render the election V(ud. In re. t'harks v.
Ad/'w vf III., 2 C. L. Chamb. 171. — Burns.
Where the returning officer used the original
collector's roll instead of a copy, as directed by
the act, having tirst aniKuincod that he intended
td do so, and no one having objected : — Held,
that the election was valid. Jicjina e.i: rd. Hall
V. Clrii/ et al., 15 Q. B. 257.
The 1() Vict. c. 181, s. 10, enacts, that the re-
turning orticor of each township or ward shall
jinieure a true copy of the collector's roll for the
year preceding the election, verified by the affi-
davit of such collector, and of the returning olti-
cer, to bo taken before any justice of the peace
ii)i' the county, &c. In this case the roll used by
the returning otKcer was a true copy of, and taken
from the assessor's roll, not from the collector's,
l)ut it was sworn that the collector's loll itself
was a true copy of the assessor's roll : — Held,
suHioient. Hei/ina ex rd. Rllson v. Perry et al.,
IP, R. 237.— 0. L. Chamb.— Robinson.
Held, that an election cannot be set aside be-
cause the returning officer had no copy, or an
incorrect copy, of the roll, unless it be shewn
that the absence or inaccuracy of such roll has
prejudiced the election, or that some candidate
iir voter refused on that ground to proceed, and
relied upon the objection. It must perhaps also
be shewn that the candidates returned were
not all eligible, or that they had not iu fact a
majority of legal votes. lb.
Neither is it any objection that the copy of
the roll WiiH not vciitied, as rciiuiivd, .it least
unless the exci'ptioii be taken liefoi'e or ibiring
the election, or Mciiiie variance be Mliewn between
the eo|)y used and the original. //).
Previous to 14 !i 1.' Viet. c. KM), it need not
a|ipear on the collector's roll wiietlier the per-
sons therein naineil were freeholders nr Imnse-
holilers. /{<ijiiia I-.I- nl. Iliiirki \, Hull, 'J ( '. I,.
Chamb. 182. Sullivan.
The village of .Smith's i'',ills was iiieiii|i(ir,ited
by iiroi'lainiition in SeptiMiiln'r, IS."),'t, ami for
that year the property in the villaj;c Wiis assessed
in the roll for .North Klmslcy, of which it formed
part. The 14 k 15 Vict. c. I(»!), sch. A, part
II, repeals 12 Vict. c. SI, s. 57, and reipiires
that the returning ntlici r sli dl procure a emrect
copy of the collector'^ roll for tin! villa;,'e for tho
year next jirecediiig the election ; making no
provision, as the re[)ealeil clause ilid, for the
case of villages incorporated Jiftir the rolls have
been made up. In tliis case tiie roll of tlie town-
ship for tho preceding year was used at the elec-
tion. The want of a village roll w.is olijeeted to
on the argument ami discussed, but it was not
set forth in the statenieot as an olijection, and
the chief justice therefore ' i ;i'd to entertain
it. (,)llare, as to the ell'ect of m- Ii objeetioii if
properly taken, /{ii/iiiii i\r ril. i rrnll \, liifh-
irUh rt ,il.,\ I*. I!. 278. --C. I,, t'hamb. I{(d)-
inson.
Held, that reailin;,' 1 " ict. c. 182, s. I,, in
connection with tlie Municipal Ac*, nou-resiilent
freeholders, whose names do not , |ipear on tho
last rovisuil assessment roll, lire ii.o entitled to
vote. Uiii'inii ex ril. JiilniKliiii v. Miirncii it ill., i>
\.. J. 87.— C. C— Fairliehl.
Hehl, where a township councillor w.vs un-
seated, anew election ordered and the returning
<irticer supplied for the [)iir[) i.ses of the new
election by tho townsliip clerk with a second
copy of the assessment roll of the township, that
the returning otticer was at liberty to use the
copy of the roll supplied to him f(.i the piu'iioses
of the first election. Jfii/iiiii ex nl. M'- \'< 'in v.
Grahuin, 7 I^- J. 125. — C!. L. Chamb. — Robinson.
A court of revision has no power by mere
motion, at the instance of a ineiuber of the court,
to order any names that they think are omitted
or wrongly inserted to be added or struck lut.
In order to give them jurisdiction a complaint
must be made, and that complaint they are re-
ipiired to try. Names improperly added to an
assessment roll by a court of revision will, in
the event of a scrutiny after an election, be
struck off', lieifma ex rel. Lniz v. Jfo/duns, 7
L. J. 1.52.— G. C.— Logic.
The franchise ought not to be lost to any one
really entitled to vote, if it can be sustained on
a reasonable view of the re(juirements of the
statute. The rating of electors under C. S. U.
C. c. 54, 8. 75, is sutHeient if in the surnames of
the electors, although the Christian names be
erroneous. Thus " Wilson Wilson" was held to
be a sufficient rating to entitle "William Wil-
son" to vote, i.o having sworn that he was the
person intended, and it appearing that he was
otherwise qualified. So "Simond Faulkner" was
hehl to be a sufficient rating to entitle "Alex-
ander Faulkner" to vote, he having taken the
same oath, and being otherwise duly (pialitied.
2431
MUNICIPAL CORPORATIONS.
243:
"Tlioinns Sanderson" was lieltl to be idem sonans
with "Tlioniiis Anderson," so as to entitle a
person bearing the latter name to vote under the
former as a sutHoient rating. Ki'i/inc ex rcl.
Chamhirs v. AIIUou, 1 I^ J. N. S. 241.— C. L.
Chamb. — J. \Vilaon.
Held, that the assessment roll as to the (juali-
iication of nuinicipul electors is eonelisive. Jb.
See also Jdt/ina I'.x rcl.
J. 1(J4.
WalUti V. BoAtwkk, 2 L.
2. Ehrtiuns.
(a) Gcncralh/.
At a township meeting for the election of town-
ship olticers, the tirst duty of the meeting is to
elect a district councillor, and the town clerk ex
officio may preside as chairman of the meeting
until such councillor l)e chosen. SiikiII i!,c rcl.
Wiilkcr V. Uiijijar, 4 Q. B. 497 ; In re Ehjijar, ,3
Q. B. 144.
An election under the numicipal act is com-
menced when the returning officer receives the
nomination of candidates, and it is not necessary
to constitute an elcttion that a poll shouhl be
demanded. Jtcijiiiii v. Cuwdii, 24 Q. B. GOG.
Municipal elections commence with the nom-
ination day, and tiie disijualilication of a candi-
date lias reference to that day. licijlna c.r, rcl.
A<hu>,x,„i V. lioijil, 4 P. B. 204.— C. L. Chamb.
— J. Wilsim.
())) Time iind Place for HoliUiuj.
Due Robert (iillis had a farm, through which
ran the division line between wards 2 and '^,
his liouse was in ward 2, Init his l)arn in ward 3.
The township nninicipality passed a by-law that
the election of township councillors for lSr)2 for
wa.'il no. 3 siiould l)e held at llobert (iillis's : —
Held, 1. that the by-law must be read as meaning
on some part of his property in ward ,'5, as other-
wise it would lie void ; 2. 'I'liat as the election
took place in tlie iiouse it was null, being out of
the ward ; '^. That the relator was not by his
qua.si acijuiescence precluded from subsecpiently
raising the objection, h'cijiiin cx rcl. PrcMon v.
Prc-iloii, 2 C li. (.'hamb. 178. — Draper.
A numicipal council by by-law, under 12 Vict,
c. 81, s. "), appointed a place for holding the
election of townsliip councillors, and afterwards
by resolution appointeil anotlier place. An elec-
tion hehl there w.as set asiile, as the change
could be made only by by-law. llcijinii cx rcl.
Alli iiiiiiiiii v. Zoc'jcr, 1 1'. K. 211). — C. L. C'hand).
— Sullivan.
(c) Pc/itriihiij Officer.
Duty of the returning officer respecting the
votes received .ind recorded considered, and his
conduct in this case .strongly censured. Costs.
Jicii'mn cx rcl. Duiidan v. Xilcn, 1 C. L, Chamb.
1!)8. -Burns.
The courts will presume that a returning officer
acts projierly and honestly until the contrary is
shew n, and where it is intended to charge that
officci- with unfairness and partiality, the case
should be plainly stated and clearly made out.
In this case it was held that the charges made,
which were general, were met as broaiUy asthey
were made. licijbia cx rel. ]V(Mcr v. Ifall, t
L. J. 138.— C. L. Chamb.— Richards.
Ho should literally observe the directions of
the statute as to keepnig a poll book, though his
failing to do so will not in all cases vitiate tlu;
election, licij'ina cx rcl. Bulijcr v. Smith ct ol.,
4 L. J. 18. — C. L. Chamb. — llobinaon.
(d) Nomination and withdrawal of Candidates.
In the list of candidates for the office of town-
ship counciUors given to one returning otlicer
out of five for the township, previous to the
election, the name of A. H., €a candidate who
had been duly nominated, was accidentally
omitted, and was not inserted until half past one
o'clock of the tirst day of the polling, whereby
he certainly lost six votes, and possibly more.
The relator and one .Stubbs being ecpial, the
returning officer voted for Stubbs, who, witli
two other candidates, having a larger numb(!r of
votes, were declared elected as the three coun-
cillors. The relator and A. H. protested against
the election, contending that the whole result of
the election had been affected injuriously to one
or both of them by the omission of the uanie.
Upon an application to set aside the election, it
was held, that it is not every irregularity that
will vitiate an election, and that in this case the
(piestion to be decided was not as to the nure
abstract gnnnidof the oinissionof the name, but
only what effect it had had upon the tinal result:
and tiiat as it did not apjiear that the result
would have been different if the name of A. H.
ha<l been properly entered on the list, the elec-
tion should not be set aside. Quu're, as to tin
right of the returning officer to add the oniittii
name to the list of candidates. Jtcijiim cx n/.
Walhr V. Milrhcll ct al., 4 P. B. 218. ('. I
Chaml). —A. ^^ ilson.
A candidate for reeve, who is proposed and
seconded at the nomination, may, with tile enri
sent of his proposer and seconder and nt the
electors present, withdraw from his candidatuiv
Jic(fniii cx rcl. Cdipic v. (,'liis/ioliii, .^ P. 1!. 3'Jh.
— C. L. Chaml). -^Daltou, C. C. d- P.
A voter, wlio iioniinated another for a nniiiiii|i;il
office, having at the meeting permitted his c_aii
didateto retire from the contest, withoutexj.icss
ing at the time any objection, cannot atterwuid.s
insist upon having the name of his noiiiiiiec piil)
lished in the list of candidates, or eiiteivd ;i:
such upon the poll book. //).
Held, That the name of a candidate whi
has been nominated, but who withdraws (with
the e(Uisent of the electors) before the elds
the nomination, need not be placed u[Kin the
ballot iiaper. Pcf/iita cx rcl. //<irri.-i v. HnnHt'ir'
ct al., G P. 11. 808.— C. L. Chamb. Hairisdii
The omission of the name of a candidati' fniiil
the ballot paper is not per se a ground fursitJ
ting aside an electiim, if it is not shewn tli;it it|
has in some manner affected the result uf tlii
election, lit.
See h'ci/liKi cx rcl. Homey. Clark; (! I.. .1. Il-fj
[). 2443 ; Rcifina cx rtl. C'orlictl v. J id I, '> I'.
41, p. 2435.
«.>'M<ciin«-<aiu4«>cK«u»<-x:;*<iV'tJn.. oi
2432
and clearly maile out.
that the charges imule
.nietaabroacflyaBtp
ni W'ldhr V. nail, b
I,._llichara8.
.serve the .lircctions o*
apollbook, though Ins
^iuall eases vitiate tho
I Mhivr V. Snulh et <-(.,
ml).— l^o^"^**""-
Hhdrawctl of Candidate..
itcs for the office of town-
^'o one returning o l.-r
A H., a oanilul.iti- ^\'"'
• ;*-n.l was acculeutally
^ii;::;iiiiiaif-i.a«tono
n the l-olling, ^vhm. .y
%ot.^, and l.<'s«i»'ly more.
.Stubbs being '^'1"'^1'^\J[
;,l for Stubbs, who, ^Mtl
hav ng a larger number ot
' 1 nV. 1 as the three coun-
h^ that the whole result ot
r,^lleted injuriously o one
the omission of the naiac.
t set aside the clectiou ,t
U ..verv irregularity that
;,ran.tuvt in this case the
B^^rf-ri:;m-;j
;^.^itoUtheo,mttc
vpove who is proix^sea aiul
[ualtou, C. ('. .I' ^-
' objection, cannot attUNV
Ujnameofhisnonnn.. .'
„f candidates, or eutuul
\\\ book. II'-
„f •! randidatc wln'
'"l"h:irwt.^s"bdraws(.ith
rlllJc^bef^vre the | ;..■ ^.
f'-'^ ""V'//^'^"v.Z:V-■"
i^!:!ciIcC>^•-«-"^'•"•
ihename of a caiulidaU' from
• f ,».r se a ground tor set
I' U^Tt isnotshevntlK>t.t
;r'artAJ^ the result onl.
,,7. //,„•,<. v.^/,^^^;^J•^■";
2433
MUNICIPAL CORPORATIONS.
2434
(e) Oath^.
The swearing falsely by a voter, at an election
of alderinen or common eouiieilmen for the city
of Toronto, that he is the person described in
the list of voters entitled to vote, is not jierjury
by any express enactment ; and a plea of justi-
tication, to a declaration on the case for impu-
ting perjury to the plaintiff, on the ground of
sucli false swearing, is bad on demurrer. Thvnias
v. Piatt, 1 Q. B. 217.
The refusal of voters ta take the oaths re-
((uired by the returning ottieer, and the reception
of such votes notwithstanding, is a good gnmnd
for setting aside an election if the relator would
otherwise have had the majority, lii'ijbia t.r n-l.
Dillon V. McNAl, 5 C. P. 137.
An agent of a candidate at an election, though
not an elector himself, may object to V(jters and
require the returning olHcers to admhiister the
(jualitication oaths, liiijhid, ex ml. Oonhiti'u'r v.
Pi! n- 1] it ai, 3 L. .1. 90— C. L. Chamb. — Hagarty.
(f) AlteriiKj Vote En-oni'OHshj Entered.
A vote which the returning otWcer received
and eutere<l in the poll book appeared subse-
quently to have been wrongly received, ai.d Im
struck it out, which produced an ecpiality of
vijtes, and gave the casting vote. It api)eare<l
that other votes had been nnproporly received,
^\hich Ijeing struelc out the camlidates would
still be eijual : — -Held, that he had no right to
.>,trike out a vote he hatl entered : tliat there
should be a new election ; and that the returning
olKcer should pay the i-elator his costs. Rcijbia
'J- vet. Miti'/u'U V. Rankla I't al., 2 C. L. Chamb.
]()1.— Burns.
At the cl(3se of the poll the returning officer
declared the relator duly elected, but afterwards
he received an affidavit from one ^[. tliat his
vi)te had been entered by mistake for the relator,
(111 which he altered this vote in the poll-book ;
ami the numbers being then equal, he added his
iiwii casting vote for defendant, and returned
that he was duly elected : — Held, that the re-
turning officer had no power thus to alter the
li(ill-l)ook ; that the defendant's election was ille-
gal ; and that the relator should be seated ; —
Held, also, that the evidence of the defendant,
and of the returning otlicer, was properly re-
jected. Rei/inn ivj rd. Achcuon v. Donofihuc ct
>'/., 15Q. B'.454.
If a returning officer, upon discovering an
error in the entry of a vote has the power to
make the necessary correction he must make it
proiuptly, and only wliere the misf.ake is beyond
a doubt. Ri'ifina ex rvl. Liitz v. Jlopkins, 7 L.
J. 152.— CO.— Logic.
See Reifina ex rel. Arnott et al. v.
C, L Chamb. 189, p. 2434.
Marchant, 2
(g) Casting Vote.
[Now, hii the Act oflS73, ifcc. 114, the Clerk- of
>hi' Munkipalitij han the casting vote, not the Re-
tiii-nimj Officer.]
A returning officer cannot, after the close of
tlie ijoU, mid his vote for a candidate, although
k then for the first time diacovors a tie between
153
some of them. Rii/mn ex rel. linlijer v. Smith et
al., 4 L. J. 18. — C. L. (Jhamb. — I'.oljinson.
It is Ids duty at the close of the election, to
declare publicly that the candidate standing
highest on the ndl is duly elected. If there Ije
an eijuality of votes, he iiuglit tliere and then to
give his casting vote. \Viiere, in ignorance of
his duty on the second day of the election, he
closed the p(dl, and on a subseipient day gave
his casti'ig vote in favimr of one of the candi-
dates, the election was lield to be void. Reijina
ex rd. Von/ilnn/f v. Wilister, (i L. .1. 89.-'— C.
L. Cliaml). — Hagarty. See, also, Reijina ex rel.
Lnlzer v. Jfo/i/dn.i, 7 L. J. l.")2.— C. C. — Logie.
A returning officer accepting a vote which he
knows to be bad, in order to create an apparent
ecpiality of votes so as to give a casting vote,
may be rendered liaide to costs. Reijina ex rel.
Totteii V. Benn et al., 4 L..]. 2()2— C'.C.-^Chewett.
See, also, previous Sub-head (f).
(h) Ojicninij anil ('loximj Pol!
Where the returning officer improperly closed
the poll, fjotli caiidi(hitcs being then e(iual ; and
when in the act of recording his own vote a
vote was tendered by an elector, who liad been
present a long time without voting, for the can-
didate against whom the returning officer voted,
which he refused to record : — Held, that there
sliould be a new election, and that tlie returning
officer sliould pay tlie relator's costs, and also
defendant's, if he chose to exact them : — (Jinere,
whether a judge in cliainbcrs, under the above
circumstances, should have ordered the name of
the voter rejected to l)e entered on the poll-books,
instead of ordering a new election. Retina ex
rel. Arnott et al. v. Marrhant, 2 C. L. Chamb,
189.— Burns.
If a voter in good time present himself at the
poll to vote, he has a right to have his vote re-
corded, though by the delay of the opposite party
in obstructing his purpose it may be a minute
after the hour appointed for the close of the poll
when the vote is recorded. Retjina ex rel. Lvtz
V. Ifupkins, 7 L. J. 152.— C. C. — Logie.
\\'here the watch of the returning officer was
used on th.: first day to open and close the poll,
anil again to open it on the second day, without
objection as to its correctness, the time marked
by his watch may be properly taken as correct
at the close of the poll. Ih.
At a township election, after the nomination
of several candidates, the returning officer ad-
journed to another room to receive votes. No
votes were tendered for any one, all parties hold-
ing back from some unexplained reason, and he
therefore closed the election at about tliree
o'clock, and declared the defendants elected by
acclamation : — Held, that the election was void,
Rei/ina ex rel. Smith v. liroim' et al,, 1 P. K.
180.— C. L. Chamb.— Draper.
The meaning of the 12 Vict. c. 81, s. 159, was
that the poll shoultl be kept open on the first
day till four, and if no votes came up for an
hour after the last vote on that day, and if the
returning officer saw that all the electors had
had a fair opportunity of voting, the election
might then be closed. Reijina ex rd. Greehj et
2435
MUNICIPAL CORPORATIONS.
243(>.
al.v.Gilhcrf lift/., KiQ. B. 263. See, also, Ife-
fl'nia ej- rel. Lnn-niiri' v. Woodruff et al., 1 C. L.
Chainb . Hi). — Draper.
[Now the poll coiitinuca open for one day only.
Act of 1873, s. 10<j.]
Senible, that where more persons are proposed
than are to be elected, and all afterwards retire
Init the nieniliers to be elected, polling havinL'
l)eKun, the returning otHcer cannot close the poll
unless under the circumstances stated in sec.
97 of the Municipal Act, ('. !S. U. C. c. ~A. J'r-
fjina i:.v ril. Ilvriu- v. Chirk, L. J. 114. — C C
— Annstrong.
At a meeting called to receive nominations f.ir
councillors, one party, as they alleged, made
their nominations at twelve, or a few moments
after, in tlic preseiiee of only two or three per-
sons, and without any elVort on the part of the
returning oflicer to call in the people outside the | account of an <itiieial having disregarded or neg-
place of meeting. He did not enter the names ' leeted some direction of the Ballot Act, if the
of the candidates in his book, and gave evasive election has been conducted in a manner sul)-
answers to some of the other party who came in . stantially fair, and the mistake or misconduct
afterwanls, as to wliether any nominations had ' has not affected the result of the election. Nitiina
new election. lii'i/iiKi f.r rcl. Kirk v. AsseUt'me,
1 L, J. 49. — C. C. — Mackenzie.
Where it was sworn that inteinling vf)tera for
an unsuccessful candidate were obstnicted in
approaching the polling place by a crowd eon-
trolled by one of the successful candidates, and
this was not unecpii vocally denied by that can-
didate, the election was set aside as to him, with
costs. llcii'iHit ex ri'l. Oihhi< ct al. v. Hraitiiihan <t
al., 3 L. j'. 127.— C. L. Ch.amb. —Richards.
The electors must have full access to the poll-
ing place. The fact that a lai-ge number could not
cast their votes is a sutlicient reason for setting
aside an election, if the result would have been
airected by the unpolled votes. Itei/iiin c.r ri'J.
I)ar}.-< it ill. v. WUwii d at., 3 L. J. iC5.— 0. L.
t 'hand ). — Kichards.
A nuniieipal election will not be set aside on
been nuide or not, and led some of the electors
present to think that there was an hour or so to
make nominations, Mhen in fact there was less
than half that time. At one o'clock, without
making any preliminary statement that certain
persons had been nominated, and without asking
wliether there were any other candidates, he
declared the per.sons nominated at the opening
of the meeting duly elected l)y acclamation. The
other side, who ^\■ere waiting, as they alleged,
to make their nominations after the other party,
luider the imi)ression that no nominations hail as
yet been made, protested, and desired to nomi-
nate the opposition candidates (of whom the
relator was one), which the returning olticer,
however, refused to receive as being late : —
Held, 1. That the election must be sei; aside,
and a new election iirdere<l ; 2. that the relator
was a caiidi<late and voter within the meaning
of sec. 130 of the Municipal Act, although he
had not Ijeen nominateil or voted, ftu' the returii-
Chandj.-
■<:-<f(in v. 'J'oiic/iliiini,
-Harrison.
(IP. R. 344.— C.L.
The objections that pei'sons were improperly
allowed to enter and remain in the polling booth ;
were lieM not fatal to the election imder the
circumstances. //;.
See I'ni'tna ex rcl.
3. L. J. 1"), p. 2439.
Uialjl V. 0' Donaijhue ( I al,.
(j) C'orriqit Prdclins,
(Jua're, as to the ett'ect of bribery at mnnicijial
elections. Rci/ina ix nl. JfcKcon v. Jfoijij, h"
Q. B. 140.
The respondent on the polling day was invited
by K., a supporter of his, to take a drive in his
sleigh. AVlien passing a cab-stand (after respond-
ent had left the sleigh), K. called out to the
cabmen, " Boys, follow me ;" and somesixof tlie
ing officer could not ))y his illegal acts divest ! cabs did so, and were said to have been employe
Lim of his rights in that respect ; 3. That tin
names of the candidates should have been sub-
mitted to the meeting seri.atiui after the hour
had elaiised, and an opportunity given to the
electors present to express their assent or dis-
Bcnt, without wliich there could not be said to
have liecn an election by acclamation ; 4. That
the returning oiKcer Ir- 1 acted improperly, and
he was theref(n'e ordered to pay the costs. 7»V-
glua ex rel. Corlnll v. Jiill, 5 P. K. 41.— C. L.
Gliamb. — J. AVilson.
See Jfciihia ex rcl. Cmiplinul v. Wilm/cr, G L.
J. 89, p. 2434.
See, also, Tk.mi'eraxce Act of 1804.
(i) Dhturhnncc or MUmnduct at Polk.
Wliere there was great noise and confusion at
during the remainder of the day in taking voters
to the poll. They never received anything, and
respondent denied K.'s agency, and disavowed
any knowledge of his act : — Held, that there was
not sufficient evidence of agency on the part of
K. to attect respondent with his acts. licii'din
ex rcl. Th<oiip.ii)n v. ^^c(lr,ll^^, 1 1 L. J. N. S. 248.
— C. L. Chamb.— Dalton, C. C. .O P.
Held, that an application under 35 Vict. c. %
8. 14, for an en(|uiry as to eornipt practices in
procuring the passage of a by-law, must he by
.summons, and if an onler bo obtained in the tiriit
instance it will be set aside. The enquiry iiiust
be conKned to the particulars finally given by
applicant. Pe Crcilit Vatki/ Pailinii/ ,e Ciiiinl'i
of Pcd Bonus, P. E. 02.— C. L. Chamb. -Gait.
The respondent, who had been provinnsly
elected reeve, was found guilty of indirect bribery
under 30 Vict. c. 48, s. l.')3. He was re-elected, |
the polling place, but no personal violence offered , the relator being the opposing candidate: — Hehl
to the voter, the allegation of intimidation was
held to have failed in tlio proof. Anon., 8 L. J.
70. — C. (J. — Mackenzie.
Where there was a great riot and disturbance
at an election so that defendant's voters could not
under sec. 157, ho wa.s ineligible as a candidate
for two years, and tlie relator was entitled t" I
the seat. Booth v. Sutherland, 10 L J. N.
287.— C. C— Oowan.
In giving notice submitting a by-law, grniitiiij.' I
get to the poll : — Held, that there ought to be a ; aid to a Railway Co. f(^r the approval of the rate-
243G
2437
MUNICIPAL CORPORATIONS.
2438
,/. Kirk V. AsseMine,
nzie.
t intenaing voters for
c were oLstnicted m
^Vico 1)V a crowd cou-
lylnicU.ythatcan-
^, ,,/ ol. V. linuniiluni -'
•haiul..— Kicliarvls.
e full access to the poll-
'large number coukj not
e lent reason for settn.g
result ^vonla have been
I votes, iioii-ar -:,";■
willnotbesetasi'^eon
of the Ballot Act, f -
,\u(.teil in a mannei mU
nistake or nnsc-mluet
,i;.,Uheelectiou^5X
, persons were ,vinpr*)perly
emaininthepollmgb..ot
to the election under the
O'Dowvjhue it a/.,
'}<«'// V
rtect of bribery at municival
■x rd-
McK'on V. 7^0!/;;, b">
payers, the oHicers whose duty it was to give
such notice hail not posted up the clauses of the
Municipal Act in reference to hriliery, in the
manner reipiired by the act : — Hehl, no ground
for quashing the by-law. West UwiUUnlninj v.
Sbm-w; -20 Chy. '.211.
(k) Inapi'rt'wH of Ballot Puiierit.
Upon an application for a judge's order for the
inspection and production of ballot papers used
in the election of a reeve, such application l)eing
made under s. 28 of 38 Vict. c. '28, O. , and nei-
ther a prosecution for an offence in relation to
ballot papers nor proceedings for tlie purpose of
(piestiouing the election on return having been
instituted : — Held, tliat tlie order couhl not be
granted. In iw Tin- I'Jlir/iuii fur I'cfVP of the
ToiDitsliij) of Eilir(ifilslinr(jli for 1S77, 13 L. J. X.
S. 44.— C. "C— Macdouaid.
(1) V<Lcandei^ in Council.
An application for an injunction in the nature
of a quo warranto iigrtiiist a i-eeve for usurping
the otKcc, on the ground that a ti. fa. again t
him had been returncil nulla bona, was founded
only on an athdavit that one |). liad recovered
a judgment against him on which a H. fa. issued,
;md was placed in the sheriff's hands, and re-
turned by him nulla bona ; — Held, insufficient ;
for it sliould liave liecn shewn how and to whom
the return had l)een made, and the writ and re-
turn shonhl have been prochiced or proved. The
rule nisi was, there f(U-e, discharged with costs.
//( re Moo'/, -Ji) Q. B. 'iiX
the polling day was lUMt 1
,t IK to take a drive m h >
La cab-stand (after respom-
tigh), ^- called out to tu:
^ .>•" and some SIX of the
":■ to have been employ.!
I., fthedayintakmgvoteis
evt "cei/cd anything, an,
K's agency, and disavowed
t"act- -Held, that there ^va
c^of agency on the part
::lU^^^th|nsacts J-;,-
palton, V. t. .t' I .
hUcition under 35 Vict. c. %
t as to cornipt practices in
1^ ,.f a bv-law, must be ')>
"^;ie be obtained in the fct
«l,o had been previously
fl the relator was eiititWt
'v. Sutherliind, 10 L. J->'
an.
,Hubmittingaby-hvw,£;^;^
,'„. for the approval of tut ra
3. Electionn of MaijorK, Wanlcnx, (uul Reerf/i.
As to the election by tlie councillors of reeves
ami deputy reeves in towns, under 2'2 Vict. c.
(19. See Rcijina <\r, ri'l. Pollnrd v. Prosper, '2
F. 11, 3.30 -C. L. Cliamb.-Richanls; liniimicx
nl. Ifinm.x. Liif-:, 7 L.J. 103.— C. C— Miller.
[By the Act of 1873 these othcers are now
elected by vote of the people. Sec. 102 et seq.]
The person who acted as returning officer for
one of the live wards in a township was not the
lieison appointed, but one of the same name.
.\fterwards, when the five councillors elect
a8Seiul)led to choose a reeve, the councilhu' from
this ward Avas ol)jccted to as not Ijeing duly
elected. The other four councillors then, with-
out tivking the oath of offtce, pn)ceeded to elect
the reeve : — Held, that the lifth councillor should
have l)een allowed to vote with the others, for it
was not for them to detei'iuine the validity of
his election. Held, also, that the oath of office
slioulu have been taken I )y the councillors before
pnicueding to elect the reeve, such election being
within the meaning of the Municipal Council
Act, an " entry upon their duties." A maiida-
niiis applied for by the reeve thus elected was
therefore refused. /;* re. J fit ink mid Bullard, 3
I.'. P. 241.
Held, that a majority of the whole number
tormiiig the provisional municipal council of a
I cniinty must vote at the election of warden.
i %iH(( ex rel. Erana v. Stnrrnit, 7 C. P. 487.
Sec. 1,30 of the Municipal Act, C. .S. U. C. c. 54,
council (except county councils) shall hold their
first meeting at noon on the third Monday of the
same January in which they are elected, or on
some day thereafter at noon. Sec. 132 enacts,
tliat the members elect of every council (except
a city or town council) being .at least a majority
of the whole number of the council when full,
shall at their first meeting after the yearly elec-
tions, and after making the declarations of office
and (jualification when re(iuired to be taken,
organize themselves as a council by electing one
of themselves to be the warden or reeve of the
corpor.ation. The incorporated village of Streets-
ville is represented liy a council of five members.
On 21st January (being the third Monday of
.J.anuary) two members of the council met at the
town hall .and <ju.alitied, but in the absence of
the three rem.aining members of the council were
unable to proceed to business. On the 23rd of
•January the three remaining members met, and
having (pLalified organized themselves as a
council, in the absence of the other two of the
council, by electing one of themselves to bo
reeve : — Held, tliat the election was leg.al, and
in the absence of proof of fraiul could not be set
asiilo. Jfei/iiia e.i- rel. Ifi/di' v. Barnhart, 7 L. J.
12G.— 0. L. Chamb.— McLean.
Held, that the m.ayor of a to^vn not withdrawn
from the jurisdiction of the county or united
counties within which it was situated, though the
head of the council and chief executive officer of
the corporation, is not a member of the council
witliin the meaning of sec. 135 of the Municipal
Institutions Act, so as to be eligible, if chosen,
to hold the office of reeve ; in other words, that
the offices of mayor and reeve cannot in such
case be holdeu l)y one and the same person.
Reifuui e.r rel. Donnix. Iltujijart, 1 L.J. X. S. 74.
— -C. L. (Jhanib. — J. Wilson.
Held, that where a vote is improperly rejected
in a county council on the election of warden,
and it does not appear that the reeve or deputy
reeve whose vote was rejected tendered it for the
cimiplaining candidate, though his vote if record-
ed niiglit and probably would liave intluenced
the result of the election, the proper course is to
order a new election instead of seating the com-
plaining candiilate. Beijina e.i: rel. Mc^[u^lll■^< w
/Vc;/».w», 2 L. J. N. S. 19.— C. L. Ch.anib.—
Richards.
Where four members of a vill.age council, being
at least a majority of the whole number of the
council when full, met, and <at their first meet-
ing a resolution naming one of them as reeve was
put and seconded, and no dissent was expressed,
whereupon the clerk in the hearing of all, but
while two of the members were retiring from the
council chamlier, declared the resolution carried,
the reeve was held duly elected, lieijina ex rel.
Heenan v. Murrai/, 3 1*. 11. 345. — C. L. Chamb.
— Hagarty.
Though the C. S.U. C. c. 54 s. 1.30 declares that
the members of every municip.al council shall
hold the first meeting at noon, and at such meet-
ing organize themselves as a council hy electing
(uie of themselves as a reeve, an election at six
o'clock p.m. on the same day is sufficient. II).
See Reginn c.c rel. Bealtj v. O'Douaghne et al.,
3 L. J. 75, p. 2439; Re'ifinn e.c rel. Bender v.
Preston, 7 L. J. 100, p! 2419; Re,iimi ex rel.
, enacts, that ,tho members of every municipal | Boyes v. JJellor, 4 P. R. 195, p. 2459.
2439
MUNICIPAL CORPORATIONS.
2440
K9l
Is
IV. Co.NTROVERTED ElECTIONH.
1. When Proci'f'diiiij-i iiiiiij ha tah'H under the
Sliitiitf.
A private relator, untler 12 Vict. c. 81, could
not either attack by writ of sumnioiis the town-
ship council l)y name, upon grounds which, if
sustained, must necesHarily lead to a dissolution
oi the body, or attack the whole council in one
proceeding, through the individual names of
every member of it. Jti'i/ina ex rel. Ldwrence v.
Wooilnilf'etal., 1 C. L. Chamb. 119— Draper ; 8
Q. B. 33(5.
[But see now sees. 135, 143, of the Act of
1873.]
Elections can only be contested in the sum-
mary way provided by 12 A'ict. c. 81, as amen-
ded by 13 & 14 ^'ict. c. ()4, by a candidate or
person having a right to vote at such election.
A voter of another ward, if ho desire to com-
plain, nuist apply for a cjuo warranto as in ordi-
nary cases. Jiiijlna (m: nl. Cubntan v. O'llarv,
ami uthi-r cims, 2 P. K. 18.— 0. L. Cliamb.—
Burns. See, also, llvijhia vx rel. Hartx. Limhaij,
IS Q. B. 51.
The legislature having provided a cheap,
speedy, and convenient remeily to try contested
elections, the court will not, in general, allow
parties to resort to the more expensive one by
(juo warranto ; the general practice is to confine
parties aggrieved to the relief to be obtained
under the statute. In re Kelly v. Macaruw, 14
C P. 313, 457 ; lieyina ex rel. White v. Hoach,
18 Q. B. 220.
Where a candidate is declared elected on the
nomination day, as being the only candidate pro-
posed, his election cannot be questioned on a
(juo warranto summons under 21) & 30 Vict. c.
51, s. 130, there being no other "candidate at
the election, or any elector who gave or tendered
liis vote thereat," wIkj could be a relator. Ihijina
ex. rel. Bin,;/ et al. v. Bell, 4 V. II. 22(j.— C. L.
CJiamb. — Hagarty.
A summons under the Municipal Act is not
an appropriate proceeding to unseat a <lefendant
%rho has forfeited his seat by an act subsequent
to the election, the election having been legal.
Jieijina ex rel. McGoiiverin v. Luwlor, 5 P. K.
208.— O. L. Chamb.— Dalton.
Held, that the legality of an appointment of
aldermen and councillors for a ward in which
there ha<l been no election owing to a riot, made
by the alilermen and councillors chosen for the
other wards, could not be tried under the 12
Vict. c. 81, 8. 14(). liei/ina er rel. Beutij v.
O'Donwihm et al., 3 L. J. 75.— C. L. Chamb.—
Robinson.
i I,'
2. Who may he Relator.
Aei/uiencence.] — Acquiescence of a candidate in
an irregular election, how far it di8(iHalitie8 him
from becoming a relator. Jte</ina ex rel. Mitrjiell
V. Adams, 1 C. L. Chamb. 203. — Burns.
The court will not set aside an election on the
relation of a party who concurred in it, and voted
for the person elected. Re<jina ex rel. Rosebush
V. Parker 2 U. P. 15.
Held, that the accjuiescence of the candidates
in the election Ijuiug proceeded with where the
returning officer was not furnished with a proper
roll, though it might not preclude them from dis-
puting the election on tliat ground, could not
affect the right of a voter who was no party to
such acijuiescence. In re Charles v. Lewis et al.,
2 C. L. Chamb. 171.— Burns,
Hehl, that the relator's coriduct, in stating that
if the voter o))jectcd to would swear that he was
I a resident his vote should be accepted, could not
I estop him from afterward fibjecting to the vote.
Reijina ex rel. Taylor v. Ca'sar, 11 Q. B. 4(>1,
An elector who takes part in an election will
not be allowed afterwards, if dissatisfied with the
result, to say that the election was wholly
void. Rei/lna e.r rel. McLawjhl'm \. Hkhtet al.,
5 L. J. 89.— C. C— Fairfield.
A party cannot complain of the election of a
candulate whom he has himself voted for, unless
he can shew that he was ignorant of the objec-
tions which he desires to urge. Reijina ex rel.
Coleman v. O'llare, and other ca.tes, 2. P. 11. IS.
— C. L. Chamb. — Burns.
A defendant having ac(iuiesced in an irregular
election camiot afterwards be permitted to object
to it on that ground. Rei/ina ex rel. Poineroy v.
Watson, 1 L. J. 48.— C. (".—Mackenzie.
I An elector who, at a nomination meeting,
' acquiesces in a statement of fact by tlie return-
ing officer, which, if true, would entitle tlie de-
fendants to sit, find himself beconies a candidate
on the strength of that statement, will not, when
defeated at the polls, be heard, as relator, to
object that in fact the statement was incorrect,
and that the defendants were therefore disen-
titled, Retjina ex rel. ReijU v. Cunac et al., 6
P. R. 303.— C. L. Chamb. -Harrison. Followed
in Reijina ex rel. Harris v. Brailburn et al., (!
P. R. 308.— C. L. Chamb.— Harrison.
OtherCases.]~Keh\,\im\er22Vict. c. 99, that
the reeve of the (Joro of Toronto, beiuga nieiuluT
of the county council of Peel, to which the village
of Brampton sent members, had sufficient interest
in the election of a deputy-reeve f(U' that village
to ena))le him to (juestion it. Reifma e.r nl.
Hart V. Lindsay, 18 Q. B. 51.
The court refused leave to file an information
to disturb a person in the exercise of an office to
which he w.as elected for one year, without op-
position ; the applicant having been present at
such election, and made no objection, and this
application being after the time prescriljed
the Municipal Act. In re Kelly v. Macaruiv, 14
C. P. 313, 457.
TheC. S. U. C, c. 54, s. 127, has rather limited
than increased the number of persons allowed tu
be relators by 12 Vict. c. 81, s. 146. Jb.
It is not desirable that clerks of nnmicip.il
councils, having the custody of pa))crs of the
corporjition, should be relators to unseat meniliers
of the council, of which they areclerks. Re'iiim
ex rel. McMullen v. DeLisle, 8 L. J. 291.— C.L
Chamb. — Ricl ards.
Where through the improper conduct of the
returning officer a candidate was not noniinatetl
at an election, and did not vote, and other persons
having been declared elected by acclamation :-
Held, that he was nevertheless a candidate ami I
voter, within the meaning of sec. 130 of the|
m
2440
imished with a proper
reclu.lethemfroiiiiliB.
at gnmiul, couUl not
wlu, was no party to
CharlMi- Ltwisftal;
VMS.
coi.anct, in stating that
ouUl swear tliat he was
Ibcaucepteil, couldnot
\ objecting to the vote.
CM U Q. B. 4(,1.
part ui an el««ti"" ^j"
iifdisaatisheawiththe
"'election ^«f. ^^^'V"/
rtiehl.
i,lain of the election of a
Welfvotea for, unless
."ignorantoftheol.jcc-
IS.
aciuiesceiUn an irregular
«-.ls be permitte>l to object
^ (^;_ Mackenzie.
t a nomination meeting,
,ent of fact by the return-
rue, would entitle the ae-
nself liecomes a camb.late
Sement, will n..t. when
s be heard, as relator, to
le statement was meorrect
ants were therefore diseu-
limb. -Harrison, ho lowed
iamb.— Harrison.
a under 22 Vict. c. 99, that
Toronto, being a member
iVeel, to which the village
;ivs,hadsuittcie«^uitere.
Icuuty-reeve for that Mllafet
Stimi it. ^eyimc e.r nl,
i Q. B. 51.
1 leave to file an information
iu the exercise ..f an othce
for one year, withou op-
„ant having been present at
^ade no objection, and tl «
fter the time prescnbc.l 1 y
/,, re Kelly v. Macnmc, 14
- -U 8. 127, has rather linute'l
number of per«oiiB allowed to
,^ict. c. 81, 8. UO. Jb.
ble that clerks of municipal
feSS^Kmi^
^Sot*:te!:udoti.erpe.o.
.Selected by acclamatum-
^.nevertheless a canddat^^j;
meaning of sec. m" " I
2441
MUNICIPAL CORPORATIONS.
2442
Municipal Act of 18()(), and therefore (jualitied to
be a relator. Jinjlna ex rel. Corhctt. v. Jiill, 5 P.
II. 41.— C. L. Cliamb.— J. Wilson.
3. Practice,
(a) Statement, Ajjidavit, and Becorpiizance,
A relator, who is a candidate, need not shew
in his application to oust tlio defendant that lie
himself was (juivliticd lor the office. Jtfi/hia e.r
rel. Mitchell v. Adams, 1 C. L. Chamb. 203.—
Burns.
The affiflavits sustaining the relator's cfise need
not state that defendant has either accepted or
acted in the f)ffico. Rvijina e.r rel. /{(dlhrcU v.
Strphensou, 1 C. L. CJhamb. .370. — Burns.
The statement of facts placed before a judge,
when a municipal election is (juestioned, need
not contain all the grounds fni which tlie relator
relies to entitle him to the seat, if the election
should l)e set aside. Jta/bia cc rd. Clark v.
McMullen, 9 Q. B. 4(i7.
A relator's statement of tm objpotion, sup-
ported by his affidavit, is looked upon as a
material traversable allegation in a declaration ;
and if defendant omit to answer it, he admits
its truth, lirji'ma i\i: ret. Hcrvcij v. Scott, 2
C. L. Chamb. 88.— Draper.
A distinct rule or order for the allowance of
the recognizance is unnecessary. lii'<jina cr ri'l.
Linton V. Jackson, 2 C. L. Clianib. 18. — Draper.
Semble, that the relator's attorney may act as
commissioner to take the recognizance and affi-
davit, licijina ex rel. lUaisdvll v. Jlochfutcr, 12
q. B. G30.
Tlie affidavit of the relator, though not inti-
tuled in any court, fcdlowed and referred to his
statement, which was properly intituled : — Held,
sufficient. An objection that the recognizance
was not entitled in any court, was disallowed
upon similar grounds, liiijina ex rd. liland v.
Finn, C L. J. 44. — C L. Chamb. — Hagarty.
Where a relator declares that he has an
interest in the election as a voter for said ward,
this, coupled witli a previous complaint that
defendant was unduly elected alderman, &c.,
sufficiently identities him as declaring himself to
lie a municipal voter, though he does not use tlie
precise term "municipal voter, " reipiired by tlie
12 Vict. c. 81 s. 14(). An objection that, though
the relator's interest is sufficiently alleged, there
is no sufficient proof of it to authorize the issue
of the writ, cannot be urged on the return of
the writ, where such allegation is not denied,
and no proof offered to shew that relator had
not the interest claimed. The interest of the
relator is not established by the orilering of the
writ. Jiiyina ex ret. Shaia v. McKenziv, 2 C. L.
Chamb. 3(). — Draper.
The relator must slicw clearly that he was a
candidate, or voted. Semble, it is insufficient to
state " that he protested ard voted against " the
election of the person chosen. Neijina ex rel.
White V. JiocKh, 18 Q. B. 22G.
A relator's statement that " he has an interest
in the election as a municipal voter," need not be
verified by affidavit. lieijina ex nl. Pumeroij v.
WaUon, 1 L. J. 48.— C. C— Mackenzie.
The statement of a relator in a quo warranto
matter alleged that he had "an interest in the
said election as a voter," and liis affidavit stated
that he had voted "at said election, Init not for
8ai(l William llastal :" — Held, that his interest
sufficiently ai)peared. lieijina ex rel. Ross v.
J{a,-*tal, 2 L. J. N. S. KiO.— C. L. Chamb.—
Hagarty.
Held, that tlie proper proof of the right of
an elector to be a relator ia the productum of
the roll, or an authenticated copy. His own
statement on oath ia insufficient. Rei/ina ex rel.
CamjMl V. O'Maltei/, 10 L. J. N. S. 250.— C.
C. — Hughes.
The relator in liis relation failed to state that
he was a candidate or a voter, as recpiired by
3(5 Viet. c. 48, s. 131, but the fact that he was
so appeared in one of the affidavits : — Held, that
as the fact was before the court, an amendment
of the relation, under sec. .TO of A. J. Act of 1873,
might be allowed. Jin/ina tx rel. O'Heilbj v.
Charlton, (i P. R. 254.— C. L, Chamb.— Dalton,
C. C. di P.
The writ of summons must be applied for
as the practice directs, witliiu six weeks, and
therefore, where there was no written motion
paper, and the statement was not signed, as
required by the rules of court, the aiiplication
was held too late. Jiei/ina ex rel. Telfer v.
Allan, and other ca.te.i,' 1 P. R. 214.— C. L.
Chaml). — Robinson. See, also, Peijina ex rd.
Hornev. Clark, G L. J. 114.
The signature to the statement was held not
to be dispensed with by the affidavit of the re-
lator endorsed, that he believed the objections
st.ated within to be well founded, /{'(jina ex rel.
Telfer v. Allan, and other cases, 1 P. R. 214—
C. L. Chamb.-- -Robinson.
Where alienage is taken as an objection, it
must be shewn ])articularly how the parties com-
^)lained of are aliens ; a general affidavit of the
tact is insufficient. Pei/inn ex rd. Carroll v.
lierkwith d al, 1 P. R.' 278.- C. L. Chamb.—
Robinson.
The power of a judge under C. S. U. C c. 54,
s. 128, as to the issut; of a tpio warranto summons
is to l)e exerciseil upon a relator shewing reason-
able grounds for supjxising that the election was
not legal, or that the person elected thereat was
not duly elected, but where the relator admitted
a iiualiHcation in fact, and made no complaint as
to the legality of the election, contenting himself
with attacking the declaration of ([ualitication
8ub8e(iuently made by the candidate, the writ
was refused, lieijina ex rel. Crai/son v. Bell, 1 L.
J. N. S. 130.— C. L. Chamb.— Hagarty.
(b) Writ of Summons.
.Semble, that it was no part of the design of
the 12 Vict. c. 81, to give any greater or more
extensive right to parties suing out under it a
writ of summons, than they before possessed at
common law or under the British statute, lieijina
ex rel. Lawrence v. Woodruff d al., 1 C. L. Chamb.
119. — Draper.
A summons having been obtained, the relator,
finding his proceedings irregular, notilied defen-
dant not to appear, and that it was his intention
to proceed de novo :— Held, the objection urged
being material, that the relator was not precluded
2443
MUNICIPAL CORPORATIONS.
2444
from a second application by hie first ineffectual
proceeding. Jffjiiia ix rel, Metcal/K v. Smart, 10
<5. B. 89 ; S. €'., 2 C. L. Chamb. 114.
A auniniuus not tested on the day it is issued,
is waived by appearance, liinjina ex rcL LiiUuii
V. Jacknon, 2 0. L. Chamb. 18. — Draper.
Senible, that the 12 Vict. c. 81, sec. 146, as
amended by 1,3 & 14 Vict. c. 04, sched. A. No.
23, did not re(juire tlie writ ordered by the court
to be sued out in term time ; but that if the ap-
plication was made in term the court should
give the order for the writ ; if in vacation a liat
shouhl l)e given Ijy a judge. Ih.
Personal service of the writ cannot be dis-
pensed with, except when provided for by the
12 Vict., c. 81, see. 148. Ih'i/ina e.v rcl. A mutt
:. Marchant vl aL, 2 C. L. Chamb. 1()7. — Burns.
A county judge issued his fiat for a (juo war-
ranto, and the papers remained with him, but
were handed to defendant's S(dicitor, before the
return day, for perusal ; — Held sufficient, and
that it was not necessary that they should have
been filed with the deputy clerk of the crown
before tlie summons issued. Hcii'ma e.r rtl.
Blamli'll v. Jiuchcit^r, 12 Q. B. (J.SO'.
Where one of three candidates, of whom two
were to be elected, announced on tlic second day
between 10 and 1 o'clock his retirement from the
contest, whereupon the returning officer imme-
diately closed the poll, and declared the others
elected, one of whom then thanked the electors
and declared his acceptance of office, and after-
' wards at tlie first meeting of the council made
the declaration of office ; and a writ of sumnifnis
was issued, not within six weeks after the elec-
tion, or within one month after the declaration
at the close of the poll by the defendant of his
acceptance, but within one month after making
the declaration of office : — Held, it not being
shewn that the relator was present at the close
of the poll, or lia<l ever learned what then took
l^laee, that the application for the writ had been
made in time. A'cyiiia ce n't. J/oriiK v. Clark,
6 L. J. 1)4. — 0. C. — ■Armstrong.
Held, that the writ of summons, signed by the
clerk of the process, and under the process seal,
though in fact issuetl by the clerk of the crown
in the Court of Queen's Bench, was sufficiently
issued ))y the clerk of the process under Consol,
?Jtat. U. C, cap. 54, sec. 128, sub-sec. 5.
Jiegina ex rel. lihmh'U v. liochesttr, 7 L. J. 101.
G. L. Chamb. — Burns.
A county court ju<lge may direct the writ to be
made returnable before the judge in chambers at
Toronto, and in that case the relator must see that
the papers are transmitted. J'e'/iiin ex rel. Latz
V. ]\'illiumson, 1 P. R. 94.— 0. L. Chamb.--
Burns.
Held, 1, that the proper designation of a
warden in a quo warranto summons, is "warden
of the corporation of the county of ;" 2, that
"warden of the county of ,"is not impro-
per, as there is no particular name or dec!jna-
tion in the Municipal Institutions Act ; 3, that
"warden of the county council of the county of
Siracoe" might, if deemed necessary, beamendeil
by striking out the words, " of the county coun-
cil" after the word "warden," in the writs to
1)6 issued in pursuance of the judgment in a quo
warranto matter; 4, that after appearance oy
defendant, the 18th rule of court applicable to
such proceedings is against holding any proceed-
ing irregular or void, which does not interfere
with the just trial of the matter on the merits.
Reijlna ex rel. MrMunux v. Fenjiiwu, 2 L. J. X,
S. 19.— C. L. Chamb.— Kichards.
(c) Disclaimer.
Where defp,ndant ijcrsonally contested the
election, but on its being moved agaiiLst scut in
a disclaimer, praying to Le relieved from ooHts,
because being (luly elected he was obliged to
accept the office under a penalty : — Held, no
ground for such relief. Reiiiitu ex rel. Feather-
xtoiie V. MeMoiiiex, 2 C. I.-. Ch.'imb. 137. —Sulli-
van.
On the 4tli of March the relator obtained a
summons, and thu writ and statement were
served on that day. On the 9tli defendant sent
a written disclaimer to the judge in chamborn,
whicli was received on the 10th, and on tlie 13th
the relator's affidavit was filed, stating tliat the
defendant consented to his own nomination ami
ha<l taken his seat, &c. Xo proof of the grounds
taken in the statement was ever filed, and tlie
case was then allowed to drop. On the 27th (if
April the relator filetl a further affidavit, stating
that after tlie disclaimer the reeve had ordered
a new election, at which he (the relator) was
duly elected, but that defendant persisted in
retaining his seat, contending that it had not
become vacant by his disclaimer. The chief jus-
tice, under these cirL'umstaiices, refused to give
judgment as if the matter were still pending un
the summons, there being no proof of any of the
objections taken ; but held that the disclainier
could not nullify the election, as the parties
seemed to have supposed ; and that if the coun-
cil should support the relator in his suit, defen-
dant or some one else must move against his elec-
tion on the ground that it was illegally ordereil ;
or that the judge who was in chambers at tlie re-
turn of the suminons might perhaps enter an
adjournment to a certain day, and call for proofs
as to the first election, and give judgment.
Jieijina ex ret. Freeinau v. Jonex, 1 P. 11. 30(1.--
C. L. Chamb. — liobinson.
Held, that the eti'ect of filing the disclaimer
after the issue of the writ is much the same as
doing so before its issue, notwithstanding the 35
Vict. c. 30, and so operates as a resignation and
puts an end to tlie suit, and defendant avoids
the reference to the county judge and the penal-
alties under the act. Reijiua ex rel. Jlaiimili v.
Paul, 9 L. J. N. S. 238.— C. L. Chamb.-Dol-
tou. a C. <L' P.
See liei/ina ex rel. Hawke v. Hall, 2 C. L,
ChainL). 182, p, 2440 ; lietjbia ex rel. Couji/uiid \:
Web«ter, 6 L J. 89, p. 2440.
(d) Evitlence.
A relator is not necessarily bound to prove his
interest unless defendant question it by deny-
ing it, and shewing, or at least alleging some
ground for his denial. Jie.c ex rel. Barlliff'e v.
O'JieUl!/, 8 Q. B. 017.
H there be a disqualification rendering a can-
didate ineligible, proper notice of it must bo
given at the time of election. No uew evidence
2444
of court iipplieable to
jt hol.ling any proceed-
hicli does not mterforo
. luivttur on the merits.
V. FcrniiwH, 2 L. J. ^.
-lUcliai'ils.
:laimcr.
■reoually contcstc.l the
u. move.l iVL;ain»t sent ui
t„. rolievca tVom costs,
■ctcl lie was obliue.l to
, a penalty :--Hfl. •"-
2445
MUNICirAL CORPORATIONS.
2446
Fciitlier-
Chanib. 137.-«»lli-
KriliiKl ci; I'l'l.
h the relator oUamed a
rit and statement were
)u the 'Jth defendant sent
, the ju.lge in chand.ers,
the 10th, andonthe l.ttli
vas tiled, stating that the
, his own nomination and
No vroof of the grounds
,t was ever tiled, and the
I to drop. On the 2 /th of
a further affidavit, stating
uer the reeve had ordered
diich he (the relator) was
,at defendant persisted in
oiiteii.ling that it had not
diselaimer. The ehief jus-
umstanoes, refused to give
latter were still pendum on
being no proof ot any of the
It held tliat the diselaimer
le election, as the parties
Led ; and that if the eouii-
le relator in his suit, deieii-
i must move against his elec-
liat it was illegally ordered ;
o was in eluunbers at the re-
us might perhaps enter an
"tain day, and call for pro'-f^
:tion, and gi^'^^ l"'^'";^."''
iuson.
lect of tiling the disclaimer
■cwritismueh thesaiiieas
isue, uotwithstaudnig the .lo
.perates as a resi-mation ami
suit, and defendant avou s
county judge and the penal-
238.— t). L. Chamb.— i»al-
,>l Hawke v. Hall, 2 C. L
■; J{^,jinaexri-l. Cuui>uutd\:
2446.
I) Emlence.
.ecesBarilybomKUonroYjiis
■endant iiuestion it by «leiiy-
,g or at least allegmg some
a.
inualification rendering a cwi-
proper notice of it must k
Xtion. No new evulence
will be received by the court on the examinaticm
of u decision of a judge in chamberii as to a eon-
tested election, lidjhui, I'x r<l. Clark v, McMulleii,
y Q. B. 4G7.
The affidavit of the relator in support of tlie
objections may be suthcient to obtain the writ,
but lie is incompetent as a witness under 1(! Vict,
o. IS), sec. 1, and tlierefore, to I'stalilisli the ease
at the trial, some other evidence is reijuired.
Ri'ijhia i:r rd. Cdrml/- v. IlicLirillt it at., I V. IJ,
278. — C L. Chamlj. — llobinson.
A <lefendaiit named in a (juo warranto sum-
mons is an interested party crying an is.suo, and
therefore was not competent to give evidence on
his own behalf. licijiiKt ex rvl. Mr(!riij:)r v. Kci;
7 L. J. ()7. — C. li. Chanib. — Draper.
Oral examination of parties refused. Jlci/iiKi
,'.r ri'l. ruiilhifitou V. lihliill, 4 1'. ]{. SO.— (-'. L.
C'hani)>. — .Morrison.
See Rcii'tnn ex nl. Ackcmn v. Dunoijluu', 15 (J.
B. 454, p". 2433
See ) IV. 3 (a), p. 2441.
(e) CoMs.
To ovAfjainxt lictnrninii 0/A"<v /■•<.]— The return-
ing officer having by onler of a judge become a
party, but being acijuitted and discharged, and
the relator's statement not being strictly correct :
—Held, that the relator sliouhl }iay the officer liis
ciists. liiijina IX nJ. Iliiwkc v. lluU, 2 C L.
Chanib. 1S2.— Sullivan.
Held, that altiiough the conduct of a return-
ing officer ill some particulars ))e irregular, in
oonsecjuence of which lie is made a party to a
ijuo warranto summons, yet if his motives were
pure, and his coiiduet free from corruption or
partiality, he is entitled to his costs, lii'ij'iiui ix
i-i'l. Mcl'iaii V. (Iniliinii, ~ L. J. 125. — llobinson.
A returning officer having acted bona tide,
and defendant having procured a written legal
opinion to be sent to him, by which means lie
obtained his seat : — Held, that defendant must
pay the costs of making the returning officer a
party to the suit. Rri/iiia I'x rrl. Pmiiiroi/ v.
IViitnun, 1 L. J. 48. — C. C. — Mackenzie.
The returning ofHcer in ignorance of his duty
closed the poll, there being an ecpial number of
votes for each candidate. On the subse(|uciit
<lay he gave a casting vote for one of the candi-
dates, the election was held void, but as he
appeared to have acted in good faith costs were
not given against him. Hi-iiinn. i-x, ri-l. CoKjdaml
V. HcWcr, L. J.89.— C. L. Chaiul).— Hagarty.
See Reijbia rx ri-l. Anwtt H id. v. Marrhant,
2C. L.'cham)j. 189.
A returning officer who receives illegal votes
not on the assessment roll may be made to pay
costs. Rei/iiKi I'X ri'l. JithnMon v. Murney tt at.,
5 L. J. 87- C. C— Fairfield.
Where in the county court the returning
otticer was ordered to pay the costs, and it
apiieared by affidavits filed on appeal that he
was insolvent, and had acted at defendant's
instance, the judgment below was altered so
as to make the defentlant also liable for costs.
Reijbm txrcL Achcsoa v. Donwjhut tt at., 15 Q.
B. 454. >. .
lfind-!ii 1 1 III, 2
C. L. Chamb. UJl, p. 2433 ; Hiii'tiin ,■.; rel. Tnl/'ii
V. Hiiiiiiii 4 L. .1. 2(i2, p. 2434; llnjiiMix nl.
CorliiU V. Jidl, 5 1'. 1!. 41, p. 24,35.
Othi'V < 'itMi'.'i. ] - -AVherc a new election is ordered,
the relator must recover his costs. Jiiijiiiii, ci;
ri/. Kirk V. ^I.sw/.m/,/),, 1 L. J. 4!).— (/. (.,'.'— Mac-
kenzie.
Defendant filed a disclaiiiuT, but a day too
late ; — Held, tliat he must pay tlie relator's costs.
Kx nl. lliurhr V. Hull, 2 V. L. Chand>. 182.—
Sullivan.
Defendant having duly clisclaiined, and not in
any manner taken Ins seat, costs were not im-
posed upon him. Rnihia ix ri'l. C'uiijiliiiiil v,
W'rUi'r, () J.. J. 8!).— C. I.. Chaml).— Hagarty.
A by-law passed by a township council, levy-
ing money to pay the costs of a contested elec-
tion is illegal, and will be (juashed with costs.
In ri' Rill V. 'J'/ii' Miniiri/iiiliti/ af tin- 'J'nicii.slii/i of
Miinnr.s, 2 C. P. 507 ; 3 C. I'. 100.
The power of a judge, under 13 & 14 Viet. c.
(i4, sclied. A., No. 23, to award costs for or
against the relator or defendant, or returning
otficer, "in disposing of" every case, extends
i only to the tiiial detei'niin.ition of each case.
\ Rrijiiiii IX ri'l. Aniiill \. Muriluuil it nl., 'li.'.
j li. Chamb. 107. lUiriis.
j The tendency of modern decisions is not to
1 compel a party to pay costs unless it bo shewn
that he participated in the inijiroper conduct for
, which the electi(Ui is set aside, linjiim I'x nl.
iDiirU it III \, \Vil.<ii(i it u/., 3 L. J. I(i5. — C. L.
I Chamb. — llichards.
I Hehl, that un.ler Ki Vict. c. ISl, s. 27, the
judge might in his disci'etion withhold costs al-
j together from eitlier side. Driper, .1., diss.
Ri'ijina I'X ri'l. Sirun v. Roirnt, 13 (). B. 340.
Or might onler each to pay his own costs.
Ri'ijina I'X nl. Oonlitiiii-r v. I'lrn/ H at, 3 L. J.
1)0.'— C. L. Cham)).— Hagarty.
Held, that a candidate who e(U'sented to this
nomination, and was illegally declared elected,
ami who afterwards sat ami voted as a council-
lor and was elected reeve, may be made liable
for costs. Rri/iiia tv nl. .lolinxtun v. Miiriii'ij et
at., 5 L. J. 87.-0. C— Fairfield.
A relator having acted in good faith in bring-
ing forward the matter was not amerced in costs,
though unsuccessful. Ri'i/iini I'x nl. Crozii-r v.
Tiiylor, V) L. J. (iO. — C, L. Chamb. —Rich-
ards.
Parties are not to be discouraged from bringing
cases of dis{]ualitication under tlie notice of the
proper tribunals by the peril of having to lose
the costs necessarily incurred. Therefore where
it wivs (piite apparent that defendant had acted
in good faith, yet being held to be disipialified
costs were given against him. Reijina ex ret.
Rollo v. Bmnl, 3 l\ 11. 357 ;— C. L. Chamb.
— Hagarty. In rn Cliartcn v. Li'wis et at., 2 C.
L. Chamlj. 171, 177.
The master on taxing costs to the successful
party should consider whether he produced affi-
davits unnecessarily numerous or ditfuse, and
act accordingly. Rei/'na I'x rvl. Walker y. IIcUl,
L. J. 138.— C. L Chamb.— Kichards.
m
2447
MUNICIPAL CORPORATIONS.
2448
Notice of ilisqualitication having l)oen given
to the electors at the time of the election, and
defendant having declared that he would run his
risk and if the election was declared invalid
wouhl pay the costs, the relator was hehl en-
title<l to he seated, and was allowed costs as
Against <lofendant. J'ti/iiui c.r ri'l. llkhnwnd v.
Tiiidi-l, 7 h. J. 1-28.— (!. C— Gowan.
Where defendant, while denying any interest
in the contract with tlie road coniiiany, l)y which
he was alleged to he dis(rualitie(l, admitted
that he was em])loyed as a salaried agent fortlie
contractor, costs were refused to him. Kiifhni
vx irl. A niinr v. Co.it,; 8 L. ,1. •_M)0.— C. L. L'hamh.
— Hichards.
It is not dcsirahle that the clerks of nninicii>al
councils having the custody of papers of the
corpoRitiou, slu)ul<l he relators in ijuo warranto
cases to unseat mem))ers of the councils to which
they are clerks. In this case, in onler to dis-
countenance such a i)racticc, costs were refused
to rehitor, clerk of the county council, to which
defendant had hcen elected a nieml)er, although
the ap()licatiou to unseat defendant was success-
ful. If",/'"" '■■'■ re/. McMillrii v. Pi-Llsl,', 8 L. J.
2iM).— Richards.
As this case presented very strong presump-
tions against defendant in the ahsencc of expla-
nation, costs Avcre not given. /I'n/iiKi ex re/.
Phlilinij/ini v. J.'hhlclt, 4 P. 11. 80.— C. L.
Chaml). —Morrison.
See /'ii/iiKi I'x ri'l. MrManax v. Fcn/itnuii, 2
L. J. N. 8. 11), p. -2451.
(f) Other Cone.^.
An information in the nature of a (juo warranto
may issue to shew cause hy wh;it authority a
municijtal councillor for aiiv district in the pro-
vince claims to he a member of such council.
/« re Biii<jnr, 3 Q. B. 144.
As to the mode of enforcing the judgment
under 12 Vict. c. SI. ReiiiiKi ex re/. (rililniii.i v.
McLet/dii, I C. L. C'liand). 125. — Draper.
Where the summons under the 12 Vict. c. 81,
s. 14G, was to shew cause wherefore defendant
had usurped tlie olfice of councillor, &c. : — Held,
per Draper, J., tliat the authority of a judge in
chambers extended only to an adjudicaticm of
the validity of the election complained of, and
that he could not furtlier decide upon the validity
of the relator's election. Jh.
The judge's order is not defective because it
does not award tliat a new election he held.
Jieijiiia ex rel. IhrrlUffe v. O'lielllij, 8 Q. B. (>17.
When a vote had heen rejected hy the judge
who decided the case, upon errone(uis grounds,
but upon further enquiry by the court it was
found to be a bad vote on other grouuils, they
refused tft allow it. lie<jhm ex rel. Forward v.
Barleh, 7 C. P. 5.3.3.
The judgment of a county judge in a contesteil
election, upon a (piestion of fact depending «>n
conflicting testimony, will not be overruled.
The intention of the statute was not to allow
this, but to provide can appejil upon any legal
question on which the case may have turned.
Quwre, as to the effect of bril^ery at municipal
elections. Re<jina ex rel. McKeoii v. JIo<jij, 15
Q. B. 140.
A judge of a county court cannot, in deter-
mining the validity of a contesteil election, de-
cide incidentally the validity or invalidity of ;i
township by-law abolishing wards. The by-hiM-,
if illegal, must be (juashed by the superior courts.
/{ei/ina ex rel. MeLduiihl'm v. llkk.t et at,, 5 L.
J. 89.— C. C— Fairtieid.
Where an information in the nature of a quo
warranto is asked for on behalf of an individual,
it must be exhibited, if allowed, in the name ol
the master of the crown office ; but where the
rule in such a case was to sJiew cause why the
Attorney (ieneral should not be allowed to Hie
the information — Hehl, that the mistake was not
fatal. Jiei/ina ex rel. Hurt v. Lbiilmi), 18 Q.
B. 51.
Semble, mere formal objections, such as that
the recognizance was not entitlcil in any court,
cannot be urged by defendant after appearance.
To raise tliem he should move. Hnfinit ex re/.
li/((il,l V. Fiijij, <i L. J. 44.— C. L. Chamb.—
Hagarty.
The judge declined to withhold his judgment,
upcm the allegation that there was a ])rior rela
tion at the instance of a ditl'ercnt rclat<ir iigainst
the same defendant for same cause pending Ijcforc
county judge, which relation, it was sworn, was
collusive, and intimded to protect defendant in
the enjoyment of the otHce, contrary to law.
Ueijhuiex rel. Me Lean \. Wa/.tun, 1 L. J.X. S. 71.
— C. L. Chamb. — Morrison,
A stranger to the proceedings may, if other-
wise (pialified, attack them on the ground th.it
they have been initiated in collusion with defcii-
d.ant, but he cannot set up irregularities, as such,
unless indeed the relator has committed tlRiii
purjHisely, as, for example, to secure the failure
of his own proceedings. He(itiia ex rel. Pal/er.iuu
V. Vaiiee, 5 P. B. 3,34.— C'.L. Chamb.— Daltim,
C. C. <0 /'.
4. When Relator or Other ('(unllilate Entit/a/
to Seat.
Notice to 'f.Vo^oc-.',]— Where it does not appear
that the voters at an election had notice of any
objection to the candidate for whom they voted,
though a valid one existed, a new election will
be granted ; but the relator, though next in onlir
to him, will not be seated. Reii'tini ex re/. //< ,--
reij V. Srott, 2 C. L. Chamb. 88.— Draper.
Held, that notice of the disqualitication having
been given to the electors at the time of the elec-
tion, the relator, who claimed the seat, was enti-
tled to be seated, Reijina ex re/. Ricluinmi/ \.
Te;iart, 7 L. J. 128.— C. C— Gowan.
Held, that to entitle a relator (who was a
candidate) to a seat declared vacant, he nuist
have notified the electors that the defendant was
discpialiried, and the grounds of such dis(jualiti-
cation. Rtyina ex re/, F/amiij(tn v. MrJlahan, '
L. J. 155.-C. C— Leggatt.
In this case the next candidate could not be
declared duly elected, as the notice to the elec-
tors of defendant's want of (jualitication was not
sufficiently explicit. Reijina. ex rel. Dexter v.
Uowan, 1 P. R. 104. — C. L. Chamb. — Robinsini.
On application to set aside an election, it is im
answer to say that the relator <lid not object at
! i.F ■^l'
tit
2448
2449
MUNICIPAL CORPORATIONS.
24.')0
mrt cannot, in deter-
;„iiteHtea election, tie-
ilitv or invalidity of a
K wards. Thel.y-law,
T)y the Huverior conrtsi.
„ V. nkk:^ el a/.,5L.
in the natnre of a <!"'>
Iiehalf of an individual,
.llowed, in the name 01
„ffiee ; hut where the
to shew cause why the
i not he allowed to hie
hat the mistake w.as not
[lift V. Liii<i'<(i!l, '» "^
„l,jections, such a.s that
„t entitled in any court,
ju.lant after avpearanoe.
move. /?'l/''"'' '•'•,''''•
44._C. 1^. Chamh.-
, withhold his judgment,
:vt there was a prior rela
IV diUerent relator against
lame cause vending hetoi*'
slation, it was sworn, was
,1 to protect defendant i..
„tUce, c.ntrary to law.
^•. ir<(Mo/(, 1 L. J•^•^•''■
•risoll.
proceedings may, if "ther-
them on the ground that
ed in collusion with deteii-
t up irregularities as such,
lator has committed thci.i
hinlc, to secure the failure
.— (!. L. Chaml).— L'idtdu,
Other ('awlhlate. EntUUil
Seat.
L-AVhere it does not appear
<.h.ction had notice of any
laate for whom they vote( ,
xisted, a new election ^vlll
■lator, though next 111 onU'-
.'ated. lie.fmae.irel. Ihr-
Jhaml). 88. -Draper.
If the dis<.ualitication having
Itors at the time of the eke-
claimcdtheseat, waseuti-
-C. C.— f'owan.
Ititle a relator (who was a
tdeclare.1 vacant, he mu^t
Uors that the defendant w.!.
krrounds of such dis.iualiti-
\l. Fhtiuujan v. McM<iliwu ,
leggatt.
lext candidate could not he-
ll, as the notice to the elet-
l;„tofq«aliticationwasi.ot
I Reqina ex rel. JM" \.
[-C.'Lchamb.-R<>hiiison.
set aside an election, it i.m.
^he relator did not ohject at
the election to the (lualification of the nerson
elccte(l ; this is only necessary to entitlo tlie
relator, if a candidate, to the vacant seat.
Reil'uiH ex rel. Coleman v. O'llare, and other
(•(wc^, 2 P. H. 18.— C. I.,. Chanih.— Burns.
A candidate claiming to ho 8eate<l at tlio nomi-
nation owing to his ()i>p<ment'8 dis(iualitication,
should, hesides claiming a seat at the nomina-
tion, also notify the electors at tlie ixills that
they are throwing away their votes hy voting
for the diHipialiHed candidate. Rei/hia ex rel.
Adani^onv. Bnyil, 4 P. I{. 204.— C. L. Ohamh.
—J. Wilson.
To entitle a candidate to the seat claimed l)y
him on the ground of his opponent's disijualilica-
tioii, it must he sliewn that the (pialiticati<ui was
objected to at the nomination, so tliat the elec-
tors might have an opportunity of nominating
another candidate. Jtei/ina ex nl. Ford v. Me-
Rae, 5. P. U. 309— C'. L. Chamlj.— Morrison.
On an ajiplication to unseat an ahlerman,
elected in I8(i(5, as not hciiij^' duly (jualiticd, aiKl
to seat another candidate in his place : — Held,
that notice of the dis(piaIificatioii sliould have
been given at the nomination, as under sec. 101,
sub. sec. () of 21) & 30 Viot. c. 51, no candidates
could he voted for who had not been proposed
aiul seconded at the nomination ; that an excep-
tion taken to the iiualitication should be of such
a plain character that the electors can easily
form an opinion as to its correctness. Rei/inaex
rel. Tuinii„jv.Ed(iar,il\ R. 30.— C. L. (jhainl).
— A. Wilson.
Other Ca.ie.i.]—Huin\Ao, Per llohinsfin, (',. J.,
that whether the court or a judge will go further
than declare the election void, or will also seat the
relator, is a matter of discretion not to be inter-
fered with on a]>peal. Reijina e.c rel. Clark v.
McMidlen, 9 Q. B. 4(57.
Where a relator, who was himself a candidate,
alleges, not only that the person declare<l elected
was illegally elected, hut that he, tlie relator,
was duly elected, the Latter cannot be depriveil
of liis seat by the resignation of the former.
Ueijina ex rel. Johunton v. Mitrnei/ et al., 5 L J.
87.— C. C— Fairfield.
Held, that when a voter having an interest in
an election is the relator, claiming the seat for
an opposing candidate, and after a scrutiny it is
found that the opposing candidate has a clear
majority of the legal votes polled, the seat will
he awarded to such candidate, notwithstanding
that he voted for the defendant whose right to
the seat is disputed. Reijiiia ex rel. Clint v.
Upham, 7 L. J. ()9.— C. C— Mackenzie.
Twenty-six persons voted twice for defendant.
The judge subtracted twenty-six from the gross
amount of votes recorded for defendant, whereby
the relator had a majority of nine, and he was ac-
cordingly declared entitled to the seat. Reijina
u rel. Pomeroij v. Watson, 1 L. J. 48. — C. C.
—Mackenzie.
When a candidate claims the right to he
elDcted at the nomination owing to his oppon-
ent's disqualification, his going to the polls
waives such right. Rei/ina ex rel. Forward v.
Detlor, 4 P. R. 198.— C. L. Chamb.— J. Wilson.
When voters perversely throw away their
votes the minority candidate has a right to the
seat. lb,
154
See Reijina ex rel. (IHiIihiih v. Mcf.ill'tn, 1 C!. T..
Chamb. 12,''>, p. 2447 ; llei/ina ix nl. MeMunin
V. Fen/nsou, 'i h. ,J. N. 's. 19, p. 2438; Iloulh
V. Sutherland, 10 L. J. N. H. 287, l). 2427.
5. Other CaxeM.
Where a mandamus was applied for, to be
directed to the warden of the London <li.>*trict,
to swear in a person wlio claimed to be duly
elected a councillor, under the Municipal ( 'oun-
cil Act, the court dischrirged the rule, it appear-
ing tliat a councillor had lu'cn returned anri
sworn in for the townsliip, wliich riiturn had
been contested ; tlie proper ri'incdy in such case
being by (|uo warranto, /ii re liniiiitiii, (i (>. S.
330.
The refusal <if voters to take the oaths iv-
(piircd by the returning ofKccr, and the recep-
tion of such votes notwithstanding, is a good
ground for setting aside an clciition, if the rela-
tor would otherwise have had the nnjority.
Reijina ex rel. Dilliiu v. J/eXdl, .") <". P. 137.
An application may be niach^ to unseat a per-
son elected as mayor, thouj^li he be not sworn
into ottice. //( re .SVn/v/'.s v. S/irni.iDii, 5 I,. .1.
42. -C. C— Boucher.
After appearance by defendant in a ipio war-
ranto matter the IStli rule of court applicable
to such proceedings is against hohling any pro-
ceeding irregular and void which does not inter-
fere with the just trial of the matter on the
merits. Rei/ina ex rel. ^fe^[lln!l.■^ v. Firiinnoii, 2
L. J. N. 8.' 19.— C. L. Chamb. — Hichai-ds.
It is not every irregularity th.at will vitiate an
election ; ami where it was objected that in the
list of candidates, given to one out of live return-
ing officers for the township the name of one
candidate, H., was omitted and not inserted
until past one on the first day of polling : — Held,
that the (luestion to be decided was not as to
the mere abstract ground of the omission of the
name, but only what efi'ect it had had on the
final result of the election. Uci/ina ex nl.
n'alker v. Mitehell, 4 P. K. 218.- (''. L. Chamb.
— A. Wilson. .See also Itniiiia ex rrl, J'restdii v.
Toaehburn, (i P. K. 344.— C. L. Chamb.— Har-
rison.
V. AccEiTANCE AND Dkci.ahation' in' Okkjce.
A public declaration of acceptance of office,
made in presence of the returning officer and the
electors directly after the returning officer has
published the result, is a sufficient acceptance
under 13 & 14 Vict. c. (54, sched. A., No.
23. Refjina ex rel. Linton V. Jacknon, 2 C. L.
Chamb. 18. — Draper.
Five township ccnmcillors were elected in
January. At their first meeting, on the 17tli,
only one made the declaration of (pialification,
and a doubt having been raised as to the other
four in consefpience of some employment held
by them under the corjioration, they delayed in
order to consult the County Court judge, thi
the 19th they met again and organized them-
selves, but on the same day the reeve for the
previous year issued his warrant to elect four
other councillors, who were returned ; and on
the 31st these four, with the man who had first
I
uni
MUNICIPAL COIiroRATIONS.
24r)2
MUiililiud, mot luul cluiined to bo tlie ciiuiicil ; —
Hulil, tiiuler L''J V'iut. c. DO, that thu suuoiitl elec-
tion \vii8 iuvaliil, for thu iiiirtius first elected not
hiiving ri't'utieil to (lualifv, tint only tlelayetl, ami
having done so uitliin the twenty days allowed,
tlicro wiiN no ijrounil for n new election. A man-
ilanius was ordered to tlie clerk to deliver up the
paiierH to tiie council tirst chosen. //( iv Cur-
jioni/ioii of't/ir '/'oiviitliljKij' Atjihixfr/ ami Sdri/diil
• lal., 17 il H.niW.
Tiic ncL'lcct of a person elected mayor, within
twenty iliiys after knowing of his election or
apjiointmcnt, to make tiie declaration of otKce
and (]ualilieMtion umler sec. 183 of the C. S. U.
<-'. c. .")4, docs not work a forfeiture of otlice in
addition to the pecuniary penalty by that sec.
imposed, llniiiia r.r n I. Furmjlli v. iJulxcn, 7
L. J. 71. -C. (;.-Wells.
Where an alderman elect made a declaration
of ollicc, inailvei'tcntly (puilifying upon i)roperty
in respect of which he was not entitled to qualify,
but was before and at the time of the election,
and at tiic time of the issue of the quo warranto
summons against him, ipialified in resjiect of
other projiortv, his election was ni)held. lliti'tnn
..rrrl. Ilai-tniix. l)i<kiii, 1 L. J. N. 8. 190.—
C. L. (.'hand).— Morrison.
Held, that a reeve of a township who was
duly elected, and had made and 8ul)scribeil the
declarations of ottici! and (jualitieation, had not
a right, under sec. ()7 of the C 8. U. C c. 54, to
take his seat in the county council, when the
certificate of tlie towiishii) clerk did not state
that he "had made and aul)scribed the declara-
tions of office and <]Ualiticatioii," but only that
he liatl "taken oi' made the declaration of otHce. "
/.'<(//■»(( <'.!• vil. MrMdiiiiK v. Fin/iintDi, 2 L. J.
X.'S. 19.— t'. L. Chamb.— Richards.
Held, that where reeves and deputy reeves
who had tiled defective certificates were notwith-
standing allowed by the clerk to take their seats
ill the county council, their votes therein could
not l>e challenged for such defective certificates,
sec. ()7 being only directory and not imperative ;
that the certificate is only evidence that what is
contained in it was done, if it have not been done,
or the reeve or deputy reeve have not been duly
elected, the mere certificate would not give the
party holding it a right to sit and vote in the
council. III.
Helil, that where the clerk properly refused
to allow a reeve to take his seat, but allowed
several reeves and deputy reeves whose certifi-
cates were eijually if not more defective to take
their seats and vote, the proper course was to
order a new election. Ih.
Held, that no costs should bo given against the
sitting member, although he accepted office and
was sworn in and his seat was afterwards vacated
on the ground of the improper decision of the
county clerk, unless shewai that he in some
maimer directly interfered with the decision of
the clerk or otherwise misconducted himself.
/h.
A defective declaration of qualification of a
candidate at a municipal election is not a gnmnti
for unseating him by the summary process under
the Municipal Act of 186(5. Jieyina ex rd. Hal-
.ited V. Ferris, 6 P. R. 241.— C. L. Chamb.—
Dalton, C. C. a> P. I
VI. Mbetinuh of ('orNcii.v and CoNDt;tT or
Bl'HINKBH.
Upon a motion to (jiiash a by-law to revise the
wards of a townsliip, it appeared that at a meet-
ing at whicli the by-law was passeil there were
present four councillors : that the motion was
put by the reeve ; two of tiie councillors voted
for the by-law, tliu third made no objection, and
the reeve declared it passed ; — Held, that thu
passing of the liy-law having been put from the
chair, and no dissent expressed, that it was duly
passed in accordance with 1'2 Vict. c. 81, sec. 8.
Af<illtiiii//i v. T/it Mnnlrijialihi nf Anli/lc/i/, (J C,
P. 158.'
The reeve being oj)i)oscdto a by-law reg'darly
passed while he was present and jiresidiiig, re-
fuseil to sign it or affix the seal. By direction
of the council the deputy-reeve then took the
chair, and signed and scaled the by-law: — Held,
valitl ; and the court discharged with costs a
rule o))taincd by the reeve to (juash it. Prcilaii.
and till' ('(ir/)(iritfiiiit of the Tuii'imliip of ^[tuinvii,
21 Q. B. ()2().
AL a meeting of a township council the reeve,
who was ill the chair, refused to put a motion
which had been duly made and seconded, where-
upon the members voted on the motion without
its being put by the chairman, and a majority
were in favour of the motion : — Held, that the
reeve had no riglit to refuse to put the motion,
and that the vote was proper iind etlectual, Thf
Miuikipalitji of flic Tuirnnhii) if liruck v. Tin'
Tiiruntii and X'qiisxiwi 1{. W, Co., 17 Chy.
425.
A municipal by-law for issuing debentures
whicli had been submitted to the ratc-iiayiw
and approved by them, contained a clause stating
that the debentures were to be signed by tliu
reeve : — Held, that the council had power to
appoint another person to sign the debentures in
place of the reeve. Jli.
The court refused a rule nisi to quash by-laws
of a township council on the ground that the
said by-laws were passed at a special meeting
called liy a member of the council, and not by
the town-reeve or other authorized officer, lii,
re HHl and the Mnnkliml (Jiniuc'd if the TownKh'qi
of Walsiuijham, 9 (J. B. 310.
A county by-law was passed at St. Catharines,
Niagara being the county town, but a by-law had
been passed m 18(52 to authorize the meetings
at St. Cathorines. Sees. 130 and 131 of the
Municipal Act C. S. U. C. c. 54, direct the first
meeting of the council to be on the fourth Tues-
day in January at the county hall, and by sec.
13(5, subsequent meetings may he held elsewhere:
— Held, that the meeting was authorizetl. Puf-
fard and The Corporation of the County ofLinculn,
24 Q. B. 16.
Held, upon the facts stated in the case, that
the by-law Wfis not invalid as not having been
passed at a legal meeting of the council, or signed
by the reeve. In re Slavin and the Coi-jiora-
tion of the Village of Orillia, 36 Q. B. 159.
See Small ex rel. WaUxrv. Bi(f(jar,iQ. B. 497,
p. 2431.
See, also, III., 3, p. 2437.
246i
2453
MUNICIPAL COUrORATIONS.
2454
■II.S AND CoNDl't-r OF
MS.
» ivbylawtoroviHuthu
iilieiirotl thiit ntamiiiit-
was iiivHsetl tlicru wuio
tliat tlic inotiou wa«
f thu couucilli)i-H voted
iiiatlu iKM.lijeution, and
v««e.l -.-WM, tlmt t .,•
viiiu buoii put Irom tla^
,ri^«Me(l, that it was .hily
,h 12 Vict. c. 81, Hci>. H.
■;y,(i/.7// <;/■ A-^I'M', t>«^-
jeatoal)y-lawreg'ilarly
ruHuiit and iii'uhi<V"«. f^^"
the seal. Hv diroctinu
utyreeve thou t(.ok tin;
,aludthel.y-law:-Held,
.Uscharged with c<'«ti, a
eve to .lUivsh it. Prr./m
he Toiriislilj' vj Mannrt,
wuship council the reeve,
refused to put a motion
!iade and seconded, \vhen'-
ed on the motion witlwuit
chairman, and a majonty
motion -.-Held, that the
, refuse to imt the niotimi,
proper and eflectual. llx-
rlwiishir of }i>-uck ".'. !"■
■n,j li. \Y. Co., 17 Chy.
iw for issuing debentures
,imitted to the rate-payvrs
„,c<mtaiued a clause statmt;
were to be signed by the
the council had power to
m to sign the debentures m
11).
a rule nisi to (luash by-huva
il on the ground that tliu
,assed at a special nieetmg
,,f the council, aiul not by
ther authorized otticer. m
ipalCoiuicilofthe'loim^lin'
B. 310.
,a9 passed at St. CatharineB
unty town, b;it a by-law lia.1
to authorize the meetings
Sees. 130 and 131 of J^"
U C c 54, direct the tirat
3il to be on the fourth Tues-
the county hall, ami by se.
stings may l>e held elsewhec
seting waa authorized. /^'. •
ationofthe.CountyojLiumn,
^acts stated in the civse, that
t invalid as not having ben
Btine of the council, or signe.1
Onllla, 36 Q. B. 159.
rafit«rv.5«t/!/a'-.4QB-497,
III., 3, p. 2437.
VII. OlfKtCERS or TlfE CoRrOKATIO.V.
1. Ti'i-(U<nrtr and hin Suvfl'wn,
Llnlnlifi/ nf Siirclii'n.] —A. became surety to B.,
the treasurer of tlie united counties of Kiwex,
fic, for tlie due ueeouiitiiig, &i'., liy ( '., as deputy
treasurer, wlii'e he, B., continued in his othee. ( '.
received moneys for wliich lie did not account,
and B. sued A, upon the bond. li. held liis
coinmiHsion as treasurer from the government,
from tlie execution of tlie bond to the lUth of
October, IS4(i ; and from that time to the Kith
of August, Iii4!(, in consecpience of a change
made in the iiKpde of appointment, h(! held his
otticu under uii election ot the municipal council
of the western district ; -Held, upon these facts,
that B. coulil sustain his action against the
surety, A., without proof in the tirbt instance
that he h.id actually p.iid the money himself
which his deputy, C., had mis-spent ; and, '2.
That the surety was liable during the whole
time the deputy was serving in the treasurer's,
ortice, without reference to the mode of the
treasurer's appointment. Bahj v. Jiithy, 8 y.
B. 7(i.
Declaration, that defendants became bound to
the plaiiitill's by the name of "the Beverley
Municipal Council," conditioned that B., who
had been chosen the plaintilFs' treasurer, should
duly account, &e. I'lea, that the appointment
was an annual one, terminating at the end
of the year, and that B. duly ivccounted for the
year. On demurrer to the plea ami exceptions
to the declaration — Held, that ilefeiidants, by
not pleading non est factum, adinitted that they
made the bond to the plaintitl's, and therefore
couhl not object that there was no such corpor-
.ition ; and that the plea was bad, for under 12
Vict. c. 81, the appointment of ]i. as treasurer
was not annual, but during pleasure, and the
oiindition covered the whole period of his hold-
ing othce. Hehl, also, that the im[)o8ition of
mlditional taxes to those assessed at the time of
taking the security, and the increase of the risk
thereby, did not vitiate a bond given for the
general performance of duties, and payment of
all moneys. The t'urporat'um of the Townnhiji of
B'fcrli'ij V. Barlow d al, 10 C. P. 178.
A confession was given to secure a second set
of sureties of a county treasurer, but on an
arbitration, it was found that defalcations had
occurred under a former bond, a surety in which
was also in the second. The evidence was con-
dieting as to whether the protection was for one
set or for all. On motion to retain moneys in the
the sheriff 's hands which had been made on the
confession, it was ordered that the wliole amount
be paid into court, and that tht siibseipient
judgment creditors should wait. J^eonard v.
Btad; 4 L. J. 2C0.— Chy.
A treasurer having been duly appointed for
three counties (wliile united), upon the separa-
tion of one from the other two counties— Held,
that a new appointment was not necessary under
C. S. U. C. c. 64. An action being brought by
a corporation against the sureties of their trea-
surer, defendants contended, that because money
which had been collected by the treasurer and
fraudulently chargetl as paid by him was not de-
manded by the ptuties (tue government) eutitle<I
thereto, they trere not responsible therefor : —
Held, that the liability of the treasurer was
between the inniiici|i,dity and hiniHelf, he having
received the iiioiiuy as their othcer, ami his
rcHponsibility was not altereil by tlie govfrnment
not demanding the money. ( 'ur/iiiriiHim of Ennej:
V, Pad: lie. V. 47.3.
In an action upon the ciivenaiits contiiiied in
a mortgage of land executed to the nuiiiicipal
i'or[ior.itioii l)y a siiretv of tlieir ti'iMHUrer, t(»
secure payment of a jiulgment recovered against
such surety, for the trcaMiircr's linliility : Held,
on demurrer, that there was nothing to prevent
the plaiiitill's from giving time t" ilet'eiidaiit for
payment, or from taking from him a covenant
to pay at the expiration ol that time. 'J'hi Cor-
liorittiiiii iif the. I'uifu if 111 III rilli v. Jmlil, l(i C.
V. :i!»7.
A townshi]! treasurer had in his hands a largo
balance belonging to the township, when he gave
to tli(! corporation new sureties ; -Meld, that
subsecruent payments by the treasurer were ap-
lilicable first to the discharge of that balance.
Thf Miinirijial Cor/ioriitiuit <f /hf 'J'iiii'iish!i> of
EiiM Ziirra v. hoiujIitK, 17 t'hy. 4()1.'.
A township council tacitly permitted tho
treasurer of the township to mix the township
money with liis own ; — Held, that this conduct
was wrong, but did not discharge tho treasurer's
sureties. //*.
A oounty treasurer had, through a misappro-
hensioii of what was the proper course, been al-
lowed for many years to mix all county money
with his "wn, ami had used for his private pur-
poses a large sum received in that way. lii this
state of tilings he had occasion to give to tho
corporation a new bond with two new sureties,
shortly after giving which it was ascertained that
he was uiiaide to pay his balance to the corpora-
tion ; and tlie sureties lilod a bill to be relieved
from their bond on tho ground of the treasurer's
misconduct, and of the uncimimunicated know-
IcMlgc of that misconduct by the representatives
of the corporation at the time the bond was given.
But tli(! court, being of opinion that most of the
facts relied on as proving misconduct were known
to the sureties, and that no information had been
withheld froii: them fiaudulently, held the bond
to bo valid. I'etrs v. O.iford, 17 Chy. 472.
One of the sureties for the treasurer of a
municipal corporat.on desiring to be relieved
from his suretyship, the treasurer offered a new
surety in his place ; and the council thereupon
passed a resolution approving of the new surety,
and declaring that on tho completion of the ne-
cessary '^oiiils the withdrawing surety should be
relieved. No further act took place on the part
of the council, but the treasurer and his new
surety, omitting the second surety, joined in a
bond conditioned for the due performance of the
treasurer's duties for the future, and the trea-
surer executed a mortgage to the same effect.
The clerk on receiving these gave up to the trea-
surer the old bond, which the treasurer destroy -
etL Eight years afterwards, a false charge was
discovered in the accounts of the treasurer of a
date prior to these transactions : — Held, that the
sureties on the first bond were responsible for it.
County of Frontennc v. Breden, 17 Chy. 645.
The mortgage was on property which the trea-
surer had previously mortgaged to the sureties
for their indemnification. The mortgage to tho
sureties had not been registered, but had beeu
24r)5
MUNICIPAL (JOHPOKATIONH.
24.'3G
■'?*
loft with tlie cit'rk of tlio cotiiicil for gnfu kocping.
On rccuiviii^ tliu iiuw ImhhI iiiul iiiortgnuu, thu
clerk giivi! u[i to tlio truiiHiin!!' tliu Miii'i'uiMturutl
inortgagt! (im wuU an thu olil IkhhI, and the truft-
siircr iloHtroycd liotli : Hold, that thu old Hiiro-
tifH Wiirv entitled to ii llrat charge on tho pro-
perty for tiieir indeninilication in ruHpect o' tho
iiowly diHcovorud dufaluntion. 1 1>.
A Hiirety to a municipal corporation for tho
due perforniance of tliu treaHurer'H dutieH ih not
relieved from IiIh reH[ionHil>ility liy thu negligunuu
of thu auditors in paHuing thu truaMiirorit au-
countx. //(.
The fact of tho troasurur having heconio re-
<lueed in his eireunmtanceH after the auditing
and pansing of hiu accountH and l)efore tho dis-
covery of an en-or in them, in no bar to a suit
against thu aurety. //(.
<)//iir Couch.] — Tho municipal council ftct, 4
& T) Vict. 0. 10, does not enahlu thu nninicipal
councils of districts to suo ujjon bonds given by
coUectois of Assessments to thu treasurer of tho
ilistrict after that act was passed, Ijut tho treas-
nrur can sue in his own name. Vt'diiinti' v.
CIi'iiickU ,t (il., 1 (i. B. 38().
It invests in the municipal council of each dis-
trict the pow<'r of suing on a lioml ^iven to tlie
treasurer of the district for tho duo payment over
to him of tho rates received by the collector, and
it is sutlicient to aver in the declaration that tho
moneys collected are duo and payal)le to thu
treasurer. L'lixfi rn Dintrirt Council v. /fii/rhiiin,
1 Q. H. :i'2l. Hut suo O'Connor v. CleinvnU H at.,
II)., 380.
At a session, in October, 1840, A. was elected
by tlie district council treasurer of the midland
district, Iteing then himself a district councillor.
H. then was holding tliu same otheu of treasurer of
tho district, liaving been long previously appoin-
ted by royal commission. A. reciuestoil B. to
to givo him thu books, &c., of the otKcu, and on
Lis refusal applied for a mandamus : — Hehl, 1.
That A. had been elected at tho proper time ; '2.
That the two offices of district councillor and
treasurer were incompatible ; 3. That A. was
ineligible for election, the council having no
power to receive his resignation as councillor ;
4. Tliat, nevertheless, he, as treasurer do facto,
under !) Vict. c. 40, liad a legal right to the
luKiks, &c., of his oliice, and that a mandamus
might go to H. for the delivery of the books, &c.,
to A., he being since A.'s election under the act
a muru stranger to that office. Beijina v. Smith,
4 Q. B. 3122.
Quivre, whether the release given by the war-
den to the principal and one of the sureties, as
stated in this case, was binding at law. Jlimivi-
])al Council of L'm'x, Kent, anil Lainbtonv. liabij,
9 Q. B. 34.
A bond by a collector to the "treasurer of a
town and his successors in office " : — Held, valid,
without naming any individual therein. Judd
V. Head, 6 C. P. 302.
Soluble, that a treasurer may be indicted for
makiug any {Miymeiit which is a clear misappro-
priation of the public money, though sanctioned
by resolution of the council. Municipality of
the Tmrnmhij) of Eaxt Nismuri v. Horseman, 16
Q. B. 570; hanielit v. The Municipal Council of
4li€ Tmvnship (f Burford, 10 Q. B. 478.
Suiiiblu, that nionuys i>aid by a treasurer on
thu ordur of tho reuvu, which tho miiiiieipHl
council had no authority to direct to bu paid,
will liu considered township inoiieyH still in his
haiida. Municipal Council of' EhhI Sinnoun v.
J/oi-Mi-mnn, « V. V. 181».
'I'ho reovo of a t<twnship reeeivud moneys for
liceliHu fees which, as liu alleged, he paid to tin
troasurur, whoso receiiit ho produced for part ol
thu sum in cash, anil a notu for thu balance.
Tho treasurer denied having received thu note oi
balance, and at his instance the municipality by
ruMidution alloweil an action to bu bi ought for it
in their name against the reuvu. They after
wards rescinded this resolution, but thu action
wunt on, and at the trial it appeared that tlir
wholi) sum had been charged by thu treasurer to
hiinself in his accounts for thu year, which, as
well as the accounts for throe subseiiueiit yearn,
had been audited and passed, shewing a general
balance for that and the other years duo l)y the
treasurer : -Held, that thu action couhl not be
inaintainud by thu municipality, and that if it
couhl, thu treasnrur would not liavo been a<lmis
siblo as a witness. T/ic Muniiijuiliti/ of liu
'J'own/thiji of Kimj v. lluijhcn, 17 Q. B. 2.')3.
Tho .Municip.il Act does not anthori/.o the
ac'ceptance l)y the treasurer of orders for school
teacher's sahiry, although permitted to pay such
orders on [)resentation, nor can the treasurer liiiid
tho corporation by his acceptance of orders.
Munxon v. Municipalitij of Cullinijwuod, 9 C. I'.
4»7.
Held, that an action would not lie against ,'i
municipal corporation by a school teacher, upcjii
an order mado upon and accepted by tho trea-
surer in tho plaintitl's favour for his salary, tlie
troiiaurer having no power to bind the corpora
tion by such accuptanco. Smith v. The ('(//■//.,
ration of the ViUaijc of ColUmjwuud, 19 (i. B. 2,-)li.
In an action by a municipal corporation against
their treasurer <'n his bond, charging him with
not having paid over moneys received, it appeared
that the corporation had a contract with one E.
to bniM bridges for them ; anil that E. wantin-
money got thu reeve to endorse his note for
.■#000, which was discounted by defendant at tlie
Niagara District Bank, of wliich ho was agent,
as well as treasurer of the municipality. A few
days after another note for !?4()0, made by K.
and endorsed by others, one a member of the
corporation, was discounted at the same bank.
When these notes were about to fall due, m
meeting of the council took place, at which ik-
fondant was present, and the reeve swore that
it was then understood that the council shouhl
assume these two notes, and he thought defen-
dant was authorized to charge them to thu cor-
poration ; but other councillors did not agree
with the reeve in their recollection of what tmik
])lace, and the only resolution or minute in
writing was that the council should give their
note for $700, to be used in the Niagara District
Bank by defendant. This note was accordingly
made by the reeve, and endorsed by the otlier
members : — Held, that under these facts, tht
treasurer hod no right to charge the council witli
the remaining ^00. In an account rendered hi
the council by defendant, this i$l,UOO was charged
as paid to E., and it was asserted that they bad
nuule subsequent payments to him, assuming thi-
account to oe correct. The facts did not shew
24SC
•2i57
MUNICIPAL COIM'OUATfONS.
24.'58
mA l>y '» truiwurur <iii
whioli the imimcii.ijl
to iliruct t<. 1'« l"\>'!-
lii. momsyuMtill ui lii»
(7 o/ A''i'>< JS'i"""'"'* V.
1, rcci'ivuil uumeyB f.n
IiHuulmI, he piii'l to th.
n„to for thu baliimv
■inif receivud the note ui
iice the imniiciimlity I'V
j„n to 1)0 »>iou«Ut for It
the reeve. They after
solution, hut the act.ni.
ivl it apiienretl that tli.-
>ri/e.n.y the treasurer to
tor the year, whieh, a>
three suhsetiueut yearn,
wse.l, shewing a geuenil
, other years .Uie l)y t he
the action couhl not Ik
licipality, au.l that it it
ihl not have been a.lun.s-
['//(■ Mitiii<ii>'i'il!l '!/ ""
does not authorize thr
urer of onlors f.)r school
^h uermittetl to pay su^h
nor can the treasurer mwl
is acceptance of or-lers.
I of Coltiiiijimod, "J L . I
n wowW not lie against :i
1,V a school teacher, up.jii
vuil accepte.1 by the trea-
favour for his salary, tin.
,„wer to bind the corpoia-
tuicipal corporation against
4 bond, charging hint with
umeys received, it appeavt;!
liad a contract with Olio IV
lem ; and that K. wanting
. to endorse his note fm
nmted by defendant at the
ik, of which he was agent.
; the niunicipahty. A tevv
u,te for «400, made by -
ura, one a member (jf the
, .anted at the sainu bvnk.
oere about to fall due, a
il took place, at which jle-
and the reeve swore tha
,d that the council siuuia
tea, and he thought def en-
to charge them to the cur-
councillors did not agree
■ir recollection of what tooU
■ resolution or minute in
council should give tlu'i-
used in the Niagara District
Thia note was accorduigl}
and endorsed by the other
hat under these facts, the
Lt to charge the councdwitli
In an account rendered U'
lant,tbi8«l,t)00vv»8';harr
; wa^ asserted that they h ul
,yment8tohim,a88umiiigtlH.
■'ot. The facts did not shew
this to 1)0 the cnxo, but Suniblu, tliat thu council I
would not have been IhiiiiiiI by oiuittiiig to notice '
• ir ol)juct to this itoin, whatever iiiiglit Ih! the
I'tlect if the at'L'ouiit liad bumi n'gularly audited, j
.\ treasurer of a intinieipality Hlmuld not lie per- j
iiiitted to act also as agent of a bank. Tlir fur- 1
/I'lriit'tDu ()/' /III' ]'iltiti/i iif /m/ir^iill v. ('Iimlirick, \
!!»(>. I«. L'TS. j
The lirst count was upon the liond given l>y
the treasurer, alleging inolieyH received ami not
pai<l over ; tjie second count f<ir money had
and received, defendant pleaded on ecinitable
'grounds, to the tirst count, that while he wivs
treasurer the corporation oweil one K. a large
.sum of money, anil tliereiipon, at a meeting of
the council duly iield, the reeve, in the presence
and hearing of the council, anil without objec-
tion, and with the verl>al assent of the council-
lors, or a majority of them, gave defendant, as
treasurer, verbal orders to ,pay H. t'JoO on ac-
I'ount of said debt, which defendant tliereiipoii
paid ; that afterwards the council onlercd de-
teiidant to render them an account of nioin^ys
[laid and received by him for the corporation,
which he did, charging the corpiiratiun in it with
the money so paid to E. ; that said council being
aware of ancli account and of said payment,
charged the said sum against I']., and atterwards
by resolution directed the reeve to pay E. Jjill'-'.
.■J.')c. on account of their delit due to him, after
.rediting themselves with sucli , r/iiient ; and
tlie reeve thereupon reipiired defi aut Ml writing
to my said .?l I'J.S.'ic., which ilefi.idant accord-
ingly paid ; and defendant alleged that the money
i.'laimed in said count as received by him and not
paid over, was the sum so paid by him to said
11 as aforesaid. To the second count the same
t'.icta were pleaded, but the allegation at the end
of this plea was, that the money so paid to E.
•M first aforesaid was thu money in the count and
in the introductory part of this plea mentioned :
— Held, on demurrer, tirst plea good, being an
averment that the money sued for was the
.•^l 12. .35c. paid by defendant on the resolution.
.Second plea, bad, for the money there alleged
to be sued for was the §1,000, for tlie payment
of which no sutHcient authority wivs shewn.
<,>Uivre, this action being by the council of the
year after that in which the payment pleaded
was made, whether the facts would have attbrded
any defence against the council who thus sanc-
tioned the payment. S. V. 19 Q. B. 280.
lu an action on a bond given to T., the plain-
tifl', describing him as treasurer of the munici-
iiality of F., for the performance by defembint
1*. of his duties as collector : — Held, atlirming
.ludd r. Read, 6 C. P. .312, th.it the action might
he maintained by the plaintiti' as treasurer,
though the statute directs that the bond shall be
taken to the municipality. Todd v. Perry tt
al., 20 Q. B. 649.
A municipal council elected B. as their trea-
surer on the 25th of January, and by a by-law
passed on the 2Sth appointed him, and directed
that he should enter on his duties as soon as he
should have executed the necessary bond. On
tlie same day they passed a resolution accepting
his bond, which was dated on the 26th : — Held,
that no objection would lie to such a bond, as
having been executed before his appointment.
Held, also, that the treasurer was clearly liable
for defalcations in the wild land tax, being the
proiwr perRoii to receive it. ('nrjini-iiiinii nf ilif
('iiiiiiffi of h'^iix V. Slrimij, 21 (^. M. I4!>.
The condition wan, that a treasurer, his exe-
cutors or adminiHtratiirM, at the expiration of hi.H
olHoe, upon reipiest to him or them m.ule, slicinld
give a just account of all moneyH rceeived, and
should nay and deliver over all b.il.iiu'cs ibn- ;
Held, tliat the words "upon reinn'«t to him or
tliem made " apiilieil lioth to the giving an ac-
count and to the [laying over, /'rnrls'iiiini/ Cur-
l>iirii/iiiii iif till ('iiiiiitij II/' /triii-i V. ('rniiiiir, 22
g. B. .321."
Where a by law was passed Ity a township
coiineil for raising a loan for a speii.il imrposo,
it was held, to be contrary to the duty of the
township treasurer to apply the money to any
other corporate purpose. (//•((•/• v. I'linihtt. I,'»
I'hy. 152.
Hut where before the tiling of a bill by a rate-
payer complaining of the application, sneh ajipli-
catioii had been made in good faith, in diseliargo
of a leg.il liability of the towiiHliiii, and the
council approvjil of and adopted the payment,
a bill to eonniel the tiH-asurer to n jiay the amount
and per.sonally lieai the loss, was dismissed. Ih.
tJounty money should be deposited to a sep'i-
rate account, and Mlumld i. ' be unnecessarily
mixed up with the treasurer's priv.ite lUoncy.
I'i'irH V. Uxforil 17 t^hy. 472.
A bill for an account w.as held to lie at the
suit of a nuinii.i|ial coiporatinn ai,- .iiist their
treasurer and his sureties. VVf Miiiiii-iii,il Cur-
/loriilion iif Tuwnnhiji lit' E'l-il Xirrti v. Uoiiiilii-i,
17 Chy. 4(j2.
It is culpable neglect of duty on the part of
municipal otKccrs not to sec tint separate ac-
counts for special rate, sinking fund, and .asscsu-
ments for general purposes, are kept as directed
by the statute. H'ik-ii' v. ('iir/Hir(i/i.>ii uf the
I 'dlivji' uf Clintim, 18 Chy. 5.')7.
2. Ofher OjHwri.
A. , upon being appointed clerk of the market
to the Board of I'ohec of Ijondon, entered into a
bond for the jiayment of a certain sum of nniiiey
in compensation for the market tolls which the
board allowed him to receive. Being sued on his
bond for the non-payment of the money, ho
pleaded "that he discovered after the execution
of the bond that the plaintiffs hiid no legal right
to erect a market, or make by-laws resjjccting
fees to be taken thereat ;"' he then avered that the
plaintiffs had no such authority, and that on this
account the bond was void: — Held, j)lea bad, in
not shewing that no market was erected or ex-
isted, and in not averring that fees were not in
fact received by him. The Board of Police of
London v. Talbot, 3 Q. B. 311.
The clerk of a district council can only charge
the council by acts within the scope of his general
authority, or by such as they directed before-
hand, or sanctioned afterwards, either expressly
or by availing themselves of such acts to their
adv.antage. Hamsaijet al.v. The Western District
Council, 4 Q. B. 374.
The court refused an information in the nature
of a (juo warranto with a view of placing a party
24,'59
MUNICIPAL CORPOKATTONS.
2460
in the office of a township clerk, who, in making
liis application, shewe<l that he coulil not write.
JfeijiiKi V. Jiijini, (•) (i. B. 21tf).
The testator having heen appointed by the
finance connnittee of the district conncil to col-
lect the wild land tax :— Held, that his repre-
sentatives were liable to the council of 1850 for
money received in 1847-8-0, by their authority,
and not paid over. The Jftdiici/ial Ctmuc'il of
Liiico/ii, f\'tl/(Ui)f, (iiitl Htddimaml v. Thompmn
et ah, S Q. B. (il5.
Held, that the 12 Vict. e. 81, makes it not
only the duty of a town council to pay their
police magistrate, but creates a debt the pay-
ment of which the magistrate may enforce in an
action of debt, not as founded upon a contract
express or implied, but on the statute and the
right which it confers : — Held, also, that under
the statute the ;;ction may be maintained with-
out the aid of a by-law of the municipality to
confer it. (^|uivre, is debt the only remedy.
Wilkrs V. Thv Town CoiiiivU of liraiiffunl, 3 C.
P. 470.
Under 0. S. U. C. c. 54, s. 402, it is for the
city council, not for the connuissifiuers of police,
to determine the remuneration to be paid to the
police force. Where, therefore, the commis-
sioners, thinking the salary of the chief con-
stable lixed by the council insutficient, had
estimateil a higher rate, the court I'cfused a
mandanuis to the city to pay it. //( )V J'riim'
and the. Curporal'wn of tlie City of Toronto, 25
Q. B. 175.
The council by resolution appointed one B.
assessor, who was sworn into ortice, and made an
assessment. This appointment was made by a
vote of three against two. The election of one
of the three was aftenvards set aside, and by a
subsecjuent vote the resolution was rescinded,
and a by-law passe<l appointing another asses-
sor. Both made assessments, and much confu-
sion arose. I'nder these circumstances, the court
granted a <iuo warranto to determine the validity
of the last appointment. Jn re MvPhirson and
Bwman, 17 Q. B. i»»J.
Helil, that \ county clerk is discjualitied, under
sec. 73 of 2!) & 30 Vict. c. 51, from sitting as
mayor of the same or any otlier municipality.
Reijina tj: n-l. Jioin'H v. Detlur, 4 P. P. 195.—
C. L. Chamb. — J. Wilson.
The property of the Grand Kiver Navigation
Co. having passed to defendants, a municipal
corporation, plaintiff was appointeil manager
thereof under their connnon seal, at an annual
salary, from 1st J.'.nuary, 18()(), an appointment
to which he had been previously recommended
in a report of a committee of council, and by a
resolution the mayor was authorized to execute
the necessary bonds between plaintiff and de-
fendants : — Held, a valid appointment, and not
necessary to have been made by by- law. Defen-
dants having dismissed the plaintiff in Septem-
ber, 18()7 — Held, that such dismissal, l)efore the
end of the year, was wrongful, defendants hav-
ing recognized plaintiff as their officer after and
during the second year ; and until removed he
was to be considered as in office under his origi-
nal appointment under the corporate seal, and
that he was entitled to compensation in like
manner as if employed by an individual. Held,
also, that the plaintiff was an officer of the cor-
lK)ration under the Municipal Act llroiii/hton
V. Cori>orutioii of Brantford, 19 C. P. 4.34.
Held, that a new county council may, before
recognition on their part, dismiss the officers
appointed by the preceding council, and that
such officers have no right of action against the
municii)ality for their year's salary. Hkkiij v.
Cor/iortdion of the Couiiti/ of lieitjrew, 20 C. P.
429,
A by-law, passed on the 2l8t July, 1874, ap-
pointed an officer, under 36 Vict. c. 34, s. 8, (>.,
to enforce the provisions of said act, and the
acts therein recited, and the by-laws of the cor-
poration respecting shop and tavern licenses.
This by-law was passed to fill a vacancy in the
office, caused by the resignation of the person
appointed under a by-law passed in February
previous. The 3(i Vict. c. 34 had been repealcil
when the by-law was passed by the 37 ^'ict. c.
32, which gave power to fill a vacancy in such
office :-— Held, that the by-law was not invalid,
because not passed in February, under sec. 9 of
the last mentioned act, nor for not defining the
duties, &c., of the officer appointed, which
might be done by anotlier by-law. In re Shirhi
and the Corporation of the Vilkuje of Orillhi, ^(\
Q. B. 159.
Where assessors or other officers of munici
palities omit to follow the plain directions in
ivcts of parliament, and any loss thereby arises
to the municipality, it would seem that the
party causing such loss would be answerabk-
therefor to the municipality. Christie v. John-
Mon, 12 Chy. 534.
See Demp.fei/ v. The Citij of Toronto, fi Q. B.
1, p. 223(i ; In n DeLaHmje and The Miiniel-
jxtlili/ of the Gore of Toronto, 3 C. P. 23, p.
24C7.
VIII. By-L.\ws.
1. Co7txtri(ctioH and Eject of Genercd/y.
It is not necessary to recite in a by-law all
that is requisite to shew the authority of the
council, or the regularity of their proceedings
these will be presumed, until the contrary is
proved. Fi-therv. Municipal Council of Vouii/kih,
10 Q. B. 492. See, also, Tylee. v. The Jlnniei-
pal Council if the County of Waterloo, 9 Q. B. 5'JO.
If a by-law be not void on the face of it with-
out being (plashed, all proceedings duly li
under it while it remained in force may t)e jus-
tified under it. Barclay v. The Municipiditii uf
the Townxhip of Diirlimjton. 5 C. P. 432. See now
sec. 24G of the Municipal Act of 1873.
In construing a by-law the court will not in-
tend that the municipality are trying to cvudi;
compliance with a statute, but will give every
reasonable help of construction to bring the In-
law within it. They will also look at the wlmlc
by-law to ascertain its meaning, and construe
one part with another or other parts, so as if
possible to give full effect to the whole. /« re
Cameron and The Municipality of East XUwiiri,
13 Q. B. 190.
Semble, that a by-law enacting that certain
animals shall not rr i at large, does not impliedly
allow otbei's not named to do so, contrary to tin.'
common law. Jack v. Ontario, Sivicoe, ilc. /',
W. Co., 14 Q. B. 328.
2460
icipal Act Bmnjhton
ford. 19 C. P. 434.
ity councU may, I'efore
rt, (lisniias tlie othcera
aing ccuncil, an.l that
lit of action against the
ear's salary, ff^fp^^'
the 2l8t July, 1874, ap-
,. 36 Vict. c. M, 8. 8, O.,
na of aai.l act, ami the
1 the by-laws of the cor-
in and tavern licenses.
I to till a vacancy ni the
esignation of the person
-law passcl in Februarv
c 34 had been repealed
passed by the 37 Viet. c.
to fill a vacancy in sue i
B by-law was not nivalul,
February, under sec. 9 ot
: nor for not detinmg the
ollieer appointed, wlueh
tlier by-law. ('' '•':;^.''";';.
• tlw Villii<J<' "J <^'"'""'' ^*'
r other officers of nninici
,w the plain directions in
,nd any loss thereby arises
it would seem that th.
loss would be answerable
cipality. Chndte v. Jolu,-
I,' Cilii of Toronto, fi Q- }'■
of Toronto, 3 C i ■ -o, I'-
By-Laws.
awl Effect of Gemralhj.
. to recite in a l.y-law iill
shew the authority of tlic
larity of their proceedings;
med, until the contrary is
unklpaU'omcUufVanul.U',
.nty of Waterloo, 9 Q- «• -JJ"-
void on the face of it with-
I all proceedings duly h.ul
nained in force may be jus-
..J nr V 432 See now
icipal Act of 1873.
tfV-law the court will not in-
eipality are trying t<. evade
stWe, but will .give e>
.onatnietiou to bring the In
;« will also look at tliewh.^lo
r its meaning, aiul constnu|
her or other parts 80 a
U effect to the whole. . I>
MunicwarUyofEad.\u.sui"'^
■jv-law enacting that certain
iatlarKe,doeBnotimpl.e.llv
„Ldto^o 80, contrary to the
Ik V. Ontario, Smicoe, df. '••
■28.
2461
MUNrCIPAL CORPORATIONS.
2402
If for all that appears a by-law may be legal
it will be upheld, and in this case, where it was
not clear upon the face of the by-law or other-
wise shewn that the money to be raised by it
was for service?, not belonging to the current
year, the omissions of recitals and provisions
which would in that case have been essential,
was Held no objection, (iihson iiiul The Corpora-
tion of the United CountieK of Huron and Bruce,
20 Q. B. 111.
All persons in a municipality, whether per-
manent residents or not, are bound to take
notice of its by-laws. Rvii'ma v. Onli'r, 32 Q. B.
324.
On an application to (piash a conviction for
something done contrary to a l)y-law the legality
of the by-law may be ipiestioiied, tliough it has
not been (juashed. Sec. 20.") applies only to
actions brought for acts done under an illegal
by-law. III.
Sec Fletcher V. Muntr'iiiid'itii (f tin' Toirnthip if
Euphraxiii, 13 (J. B. 129, p. 2-470; In re Smith find
The City of Toronto, IOC I'. 22"), p. 2470 ; Sieord
and The Corporation of the County of Lincoln, 24
Q. B. 142, p. 2471.
2. Votiiuj oil liy Electors.
By-laws for prohibiting the sale of spirituous
li(juors, &c., wliich, under K! Vict. c. 184, s. 4,
are re(piired to be submitted to the electors, must
be adopted and a])proved of by a majority of all
tlie (qualified municipal electors of tlie munici-
pdity, not merely by a niaj(U'ity of tiiose who
may attend at the meeting called to consider
juch by-law. [See on this point, as to V)y-laws to
aid railways, Jenkins r. Tlie CoiiMiration of the
County of Elgin, 21 C. V. .325; Krwin ?■. The
Council of Townsend. y/).,.330. ] Where the by-
law which provided for calling 3uch meeting ai-
sunied that the approval of the majority of the
voters present would be suiKcicnt ; — Held, that
it was nevertheless proper to move against the
then proposed by-law, after it had been passed on
such approval, and not against that which laid
down the improper course of proceeding. //( re
MeAroy and the Municijndilij if Sarnia, 12*2.
B. 99.
A by-law to change the county town ( * Lin-
coln, under 25 Vict. c. 30, was not to bc: valid
unless assented to as in tlie case of a by-law to
take stock in a railway company. It was jiub-
lislied in all the local papers except cue, for the
proper period prescribed by 0. S. I . ('. c. (if! : —
Hold, that the omission rendere<l it voi<l. Sini/i-
doH V. The Corporation of the County of Lincoln,
13 C. P. 48.
Held, that in every case in which it is neces-
sary to submit a by-law to the electors for assent,
the reiiuirements of see. 19t) of 2u.k 30 Vict. c.
51, as regards notice, nuist be followed, and that
see. 228 only applies where county councils cpn
raise money by by-law without submitting the
same to the electors. In this case tlie publica-
tion of the by-law was objected to as insutticient
uuiler 8ub-8. 2 of sec. 190, the first pulilic.ation
being on the 8th, and the last on 29th October ;
hilt it was sub8e(iu( iitly inserted on the I9th and
26tli November, and also on the 3r<l 1 )ecember,
ami every effort appeared to have been made to
give t'lie by-law publication. Tlie court, in its
discretion, refusf ' to ([uash the by-law on this
ground. Inre Uilmon v. The Corjiorntiou of the
County of Bruce, 20 G. P. 398.
Held, that the list wliicli the 29 & .SO Vict,
c. 51, s. 19(i, sub-s. 7, reipiires the clerk of the
municipality to furnish the returning officer
with, is a list containing the n.anies of all free-
holders and ten.ants of realty assessed on the roll
to an amount sufficient to entitle them to vote at
any municipal election. Ennn v. Tmru.ihiji of
Towim'ud, 21 ('. V. 330.
A by-law fixed the sum to bo jjaid for a license
for billiard tables in a town at S3()0, and eiiact''il
that it should be unlawful to have any intcn'iial
means of comnumicatinu hctweon a room in
which a billiard or bagiitoUc tiil)le was kept, and
any place in which spirituous ]ii|Uors might be
sold: — Held, that such a by-law was prnperly
submitted to tlie electors iiiulcr 37 ^'ict. c. 32, s.
23, ()., which was not confined to tavern licenses.
In re Xeilbi et al. and the ('or/mriitlon of ihi
Town ofoireii Sound, 37 Q. B. 289.
This c(mrt has jurisdiction to restrain a mu-
nicipal corporation from obtaining the vote of
the ratepayers in favour of a by-law which,
if passed, would be illegal witliout legislative
sanction, and which sanction such vote was
intended to aid in obtiiiuing in an inforiual and
unautlun'ized niinner. tielin v. '/'In- ( 'or po ration-
of the Town if Port If ope et al., 22 Chy. 273.
Where a municipality has legally a right to
pass a liy-law granting a sum of money, it would
seem premature to apply to restrain the by-law
being sulniiittod to the ratepayers, as tlicy might
refuse to approve of the by-law. The previous
case distinguislied. Vicb'rK v. 'Thi' Munii-ipality
ofShuniah, 22 Chy. 410.
See Paffard. and The Corporation of the County
of L':icoln, 24 Q. B. 10, p. 24(!(i ; In iv Cunnimj-
haiii V. The Corporation of the Vilhnie of Almonte,
21 C. P. 459, p. 2489.
3. Creatiiiy Diliti.
The court refused a rule nisi to (piash by-laws
of a township, on the ground that having passed
a by-law to contract a loan they liad exceeded
their powers in afterwards modifying tlie said
bylaw ; it appearing that such altcratiini could
not afFect the security of creditors. Jn iv Hill
and the Municipal Council of the Townnhip of
WaUinijham, 9 (,». B. 3i0.
Where a by-law had been passed by a mnniei-
pial corporation, creating a clebt, and before the
debt had been paid it was by a subsoiiuent by-
law repealed : — Held, that uiid(!r 3(! Vict. c. 48
s. 254, the repealing by-law was invalid, and
must be quashed. Smith and The Municipid Cor-
/loridioHofthe TowuMp of Oakland, 24 C. P. 295.
Under 4 & 5 Vict. c. 10, land must have been
taxed at so much in the pound on its .assessed
value ; and it was not necessary that a liy-law
should charce upon land separately .a distinct
proportii
Tiilee V.
Waterloo, 9 Q. B. 588.
A by-law under 4 & 5 Vict, c . 10, for raising
a rate, stated that the money was required to
pay off £1,500 due to the Oore Bank, and .t'500
liroportion or the sum autlnn-i/ed to be levied.
''ytee \. The Municipal Council of thi
County of
2463
MUNICIPAL CORPOKATIONS.
2404
due by the district to D. : — Held, suffiuient, and
that it wiis not iieceasary to state for wliat ser-
vices the money was due ; for the court would
intend that the debts were legally contracted,
and for a legal purpose, lb.
Held, un.ler 12 Vict. caps. 78, 81, 1.3 & 14
Vict. caps. (54, (JT, 14 & 1.5 Vict. caps. 109, 110,
not necessary that a by-law to raise money for
county jiurposes should contain all the provisions
re(]uirud to perfect the measure ; and, therefore,
the same by-law which provides for raising tlie
loan and imposing the rate need not apportion
the sums to lie paid by each municipality, for
that may be provided for by a siibse(pient by-
law, (tricrxiiii V. ProvixUinial Council of (lie
Count!/ of Ontario, 9 Q. B. 623.
A by-law for paj'ment of a debt must contain
on the face of it the rate autliorized to be levied
for makinu up the sum granted. Such l)y-law
is illegal if it direct a gross sum to be raised for
the payment of the current general expenses of
the county, .and the licpiiilation of the debt due,
not stating what debt, or of wliat amount.
t)>ua're, wbetlier the 4 & .") Vict. c. 10, s. 41, ap-
plies to by-lavs passed under 12 Vict. c. 81, or
whether the court must determine on their
validity according L.; other statutes in force, and
the common law. duwihi Comjiany v. Munivi-
}ial Council of thf Count ij of Middlesex, 10 Q. B.
93.
By-law (juasheil Ijccause no sufhcient rate was
imposed for the paj-ment of the debt and interest,
as required by 12 Vict. c. 81. In re liiJlinija
and The Mnnirijxil Council of the. Towni^hip of
Olouccxtcr, 10 t^. B. 273.
The by-law in tliis case for raising a loan M'as
held clearly l)ad, the rate directed to be levied
in the first j'ear being insufficient. Pern/ v.
Town Council of the Town of Whitby, 13 Q. B.
564.
Municipal corporations, under 12 Vict. c. 81,
might, by a subseijuent Ijy-law, impose an ad-
ditional rate to provide for any deficiency in tlie
sum levied under a previous by-law for payment
of debts incurred pi-evious to the 1st of January,
1849. Mcllixh V. Town Council of the Town of
Bmwjiton, 2 C. P. 35.
Under 12 Vict. c. 81, any by-law passed for
payment of a debt or creating a loan, must settle
and direct to be levied a special rate for such
purpose. lb.
Sec. 177 relates to all debts and innrest law-
fully incurred and becouung payable within the
year. 1 b.
The 14 & 15 Vict. c. 109, sec. 4, prescriliing
what by-laws creating debts, iStc, shall recite,
is only directory, and does not declare that the
omission of any of the prescribed recitals shall
render the by-law invalid. The rate to be
levied by any municipal council for the payment
of a debt or liquidation of a loan, &c. , must,
under the uninieipal acts, be ecpial in each suc-
cessive year, and not ttuctuatinij according to the
arl)itrary discretion if the municipality. In re
iSelln and the Municipalitij of the Villaije of St.
Thomas, 3 C. P. 28(5.
Where a by-law recited that the amount of
tlie whole ratable jjroperty of the townshi)),
according to the last assessment returns, was
f 114,75<), and that it would require the annual
rate of 2^d. in the pound, as a special rate, for
payment, &c. ; and then enacted that .•> special
rate of 2Jd. should be levied to pay the principal
and interest of the loan to be raised under the
by-law, and that the proceeds of such special
rate sliould be applied solely to the payment,
&c. , until the same be fully paid and satisfied : —
Held, that the recital as to the amount of rat-
able property aiitl the .assessment returns was
sufficient, aiul that it sufficiently appeared that
the rate was to be levied in each year. In one
part of the hy-law the reeve was empowered to
issue debentures for such sums Jis should l)e,
from time to time, required for the purposes
mentioned, but not to exceed in the whole
£10,000: in subsetjuent clauses a special rate
was imposed to pay "the said sum of ,£10,000,''
and the application of "the said sum of £10,000,"
was pointed out ; and the debentures were direc-
ted to be made payable ' ' within twenty years of
the time that this by-law shall come into opera-
tion ": — Held, that the amount of the loan, and
the time when the debentures were to be made
payable, was stated with sufficient certainty. In
re Cameron and the Municipality of Eojit XixKouri,
13 Q. B. 190.
The by-law provided for raising .?22,300, and
authorized the issue of debentures payable in
from one to ten years, with interest half-yearly,
but no greater sum than .§3,200 to be payable in
any one year ; and it imposed a special rate of
half-a-mill in the dollar, in addition to all other
rates, until the debentures and interest sliould
be paid in full. This was objected to as not
shewing when or in what proportions the debt
or debentures were to be payable, or how nuich
each year ; but Held, good, for the rate not
being unequal or insufficient, it was a matter „f
calculation so to make the debentures payaljle
that it would meet the principal and interest
falling due in each year. Se<'ord and the Cor-
poration of the County of Lincoln, 24 Q. B. 142.
Municipal corporations cannot by by-law raise
money at a rate of interest exceeding six per cent.
Wihon and The Municipal Council of the Couutii
ofEl'jin, 13 Q. B. 218.
A by-law to authorize a loan h.aving beer, duly
passed, another by-law w.os proposed, not dis-
pensing with it, but shewing clearly that the
rates imposed by the first by-law were meant to
be dispensed with, and other provisions made for
the payment of the principal : — Held, that tlie
last i)y-law was b.id, for it must be considered ;ui
a new ami independent by-law, not iis a mere
supplement to the previous one, and it should
therefore have contiiined the usual recitals and
enactments required in by-laws for craitiiig ,i
loan. In re Bryant andthe Municipality of PUti-
hunjh, 13 Q. B. 347.
Where the municipality of a township, inteiul-
ing to act under 13 & 14 Vict. c. 48, for coimiion
school purp OSes, declared a rate upon the resident
inhabitants of a school section only : — Held, that
under 13 & 14 Vict. c. 48, as well as the U. C.
Assessment and Municipal Acts, the by-law wiw
invalid, because the rate should be levied im the
taxable property within the section, whether iif
residents or non-residents : — Held, also, that in
such case the court has no discretion, but must
(piash the by-law with costs. Quiere, wlietlicr
ill tlie present cose tho rate aud assessment tube
■;■ VI
2404
2465
MUNICIPAL CORPORATIONS.
24CG
I re«iuire the annual
asasvccialrate, for
.acted that Wal ^
atopaythevrmcipal
oberaWlumlerthe
3ee.l8 of such special
,lely to the payment,
y paid ami satished:--
the amount of rat-
sessmcnt returns was
ciently apve^i^'} *Jf^
in each year. Iti one
,ve was empowered to
li sums as shoidd l>e,
.ired for the purposes
exceed in the. whole
clauses a Bpe«al «^tc
jsaidsumoftO.m,,
lesaidsumof tlO.OW,
. debentures were ditec-
'within twenty years ot
V shall come into >.peva-
Lountoftheloan, and
matures were to l)e made
1 sutticient certainty. Ii
icq>cdityofEcu4Nisso„n,
for raising i522,500, and
E aebentures m'^^'^l''}
with interest half-yearlj,
11 S3,200 to he payable m
imposed a special rate .,
r in addition to all other
t'ures and interest should
fwas objected to as no
what proportions the debt
bepaVabHe, orhowmucl
Lint it was a matter J
IT the debentures payable
Llie principal and interest
far. «'•-'•'' T'bUo'"
Ions cannot by by-law raise
rest exceeding SIX per ceu.
i^e a loan having beer .^^ly
Vw was proposed, not ills'-
^^hrwi,4 clearly that the
first by-LiW were meant to
.dotherprovisionsmadefor
principal :-Held, that tl^
for it must be considered .18
ent bylaw, not ^« a mero
Wious one, and it should
S the usual recitan am
in by-laws for creating »
nality of a township, inten.1-
^14 Vict. c. 48, for eouimou
faredarateu«ontheresident
lol section on\y:-Held that
1 n 48 as well as the Vj. ^•
Lcipal Acts, the by-law w|«
'"raTBl^ouia be levied out.
bhin the section, whether ,{
Idents-.-Held, also tlatin
Cno discretion, but "u
Eh costs. Qu'^re, whether
Vm
costs. Quwre, « --
rate and assessment tube
levied were stated in the by-law with Butiicient
certainty. Jii re Dt'Lalfai/e v. The Mi'"''cii>ality
of the Towmhip of, and the Oore o/ Toronto,
2 C. P. 317.
The by-law in this case provided that any
money above the proceeds of the old town hall,
required for the erection of the new one, should
be levied on the ratable property of the town-
ship, but did not Hx the amount or rate to be
levied, or contain the necessary recitals and pro-
visions, and this part of the by-law was there-
fore held bad, In re Hawke and The Muniei-
2)alU;/ of WeUexh-y, 13 Q. B. 03G.
A by-law to raise a loan for the construction
of an esplanade under 20 Viet. c. SO, which
authorizes the city to raise a loan for such an
amount not exceeding; £75,000, as viaij be ne-
cessarj', &c. : — Held bad, because while it au-
thorized the raising of a loan to the full extent
of £75,000, it did not shew that that sum was
necessary, nor for what amount the contractors
had engaged to do the work. Ex parte HHi/en
V. The Cily of Toronto, 7 C. P. 255.
The 16 Vict. c. 219, authorizes the issuing by |
the city of Toronto of S120,000of debentures for
esplanade purposes. A by-law having been i
passed on the 7th of May, 18()0, intituled, "To
provide for the issue of additional debentures
for ?54,000, for esplanade purposes,"' upon ob-
jection taken that on its face it did not shew
any authority in law for raising the sum : —
Held, that inasmuch as the by-law in its rental
referred to the statute, which was a public
act, it could not be said that it shewed no
authority, and a prima, facie case of an excess
of authority ; in the amount authorized by
statute not being proved, the court refused a
rule to quash. Ja re Grunt and the Citi/ of'
Toronto, 12 C. P. 357.
By-law passed to raise money for a school
house. Held, bad, for Jion-compliauce with the
requisites under 14& loVict. c. 109, s. 4, of all by-
laws creating a debt or contracting a loan. Hart
and the Mnnkipalitij ofVet/>ra and linnntdale, IG
Q. B. 32. See, also, JMclnti/rr ami the Corpora-
tion oj the Township of EklersUe, 27 C. P. 58.
The by-laws for contracting a debt for taking
stock iu and constructing a road, having been
passed by the district of (iore before the 12
Vict. c. 81': — Held, that it was not necessary
tliat such by-laws should impose a special rate
as required by that .act. The Municipal Cor-
poration of Wellimiton v. The Municipalitij of
the Townnhip of Wilniut, 17 Q. B. 82.
A. by-law authorizing the reeve to issue a
ilebeuture, to be paid out of the taxes of the
year following, thereby creating a debt : — Held,
bad, the reipiiremeuts of C. S. U. C. c. 54,
3. 223, not having been complied with. Clapp
V, The Corporation of the Township of Thurlow,
IOC. P. 533.
If, for all that appears, a by-law may be legal,
it will 1)6 upheld ; and in this case, where it was
not clear upon the face of the by-law, or other-
^(ise shewn, that the money to be naised by it
W.18 for services not belonging to the current
year, the omission of recitals and provisions,
which would in that case have been essential, was
held no objection. Oilison v. Tlie Corporation of
Huron ami Bruce, 20 Q. B. lii.
155
A by-law to contract a loan should state a day
on its face when it shall take ettect, and should
not recpiire extrinsic evidence to be looked for to
ascertain tliat fact : but the court refused to quash
on this objection, holding that the words "may
quash," was permissive, and gave them a dis-
cretion. In re Mirhieaiiil TheCorporation of the
Citi/ of Toronto, 11 C. P. 379.
A by-l<aw to raise a loan, which required the
.assent of the electors, w;is, on the 1 Itli of Feb-
ruary, signed by the warden, .and sealed with
the corporate seal, but it recited that the assent
of the rate-p.ayi!rs to it was necessary, and con-
tained full provisions for taking their votes. It
was published, with a notice, stating it to be
a proposed by-law to be taken into consideration
on the 15th of M.aroh, .and naming the times and
places for voting on it. On the 15th of M.arch
the council passed another by-law, reciting ver-
b.atim th.at of the Uth of Febru.ary as a by-Law
adopted on that day, and that it had been voted
upon, .and approved of, and enacting that the
s,aid by-law be tin.ally p.assed, and be a by-l.aw
of the corporation ;— Hold, that notwithstanding
the signing and scaling, the by-law, under these
circumstances, w.as not illegal as passed on the
11th of February, before the .assent of the elec-
tors, but th.at it shouhl be treated as tin.ally
jiassed on the 15th of March. Held, also, that
the by-law of the 15th of March (lid not impose
a rate, but had the efl'cct only of finally i)assing
the previous by-law, and, therefore, did not re-
(fuire the assent of the electors. The intro-
duction of the word "said '' in the tirst by-law
.as recited in the second, which was not in the
original, was treated as immaterial. Paffard and
The Corporation of the County of Lincoln, 24 Q.
B. 1().
It was stated in an affidavit filed in support of
a motion to quash a by-law to raise a loan, that
the true amount of the ratable property w.as
not §(i,434,773, .as stated in the by-law, but
S7, 565,408. The clerk of the council, in answer,
positively denied this, stating the true sum to
be .?(),435,475 :— Held, th.at m the face of the
clerk's affidavit the objection could not prevail,
•and that the difference between the sum in the
by-l.aw and that sworn to by him was unim-
portant. //'.
Remarks by Wilson, J., jvs to the practice of
omitting to levy in each year for the full amount
of the sinking fund reifuired for loans, and its
effect upon the rights of creditors, taken in con-
nection with the doctrine against rating for debts
past due. 'oriioration of the County of Frontenac
v. Corporation of the City of Kinyxton, 30 Q. B.
584. As to r.ating for past debts. See, also,
Haynes v. Copeland, 18 C. P. 150, p. 2481.
The limit of two cents in the dollar imposed
by the Municip.al Act of 18G(i as the maximum
of assessment, includes the special sinking fund
rate to be levied in respect of past debts. Wil-
kie V. Tlie Corporation of the \ illaye of Clinton,
18 Chy. 557.
The deposit of the interest and sinking fund
recfuired for the payment of debentures of a
municipal corporation in a bank .at interest, is a
temporary investment of such money under sec.
248, sub-s. 4, of the Municip.al Act of 1873 ; and
the corporation has no power by resolution to
appropriate interest arising from such invest-
ment to any other purpose than the sinking
2467
funil
MUNICIPAL CORPORATIONS.
2468
funil. Gait, J., sitting in vacation. Re Barhfr
and tlif t'orpiii-dlioii of the Cili/ n/Oltawa, 39 Q.
B. 40(;.
See, In re Monliionitni itml The ('nr/iord/lon
ofth T,nniMi'uf'Unh;<ih, 21 V. V. 381, p. 2483;
The Eilinli{(rii/i Li/i' A.t-'dirdiicr Co. v. The Mnni-
rijntllli/ of' t/ic Tun-n of Si. Calhann(;-<, 10 Cliy.
379, 1).' 2479.
4. Lvvyhiii YiAirhj Rutex.
By-laws <innslioil — 1. As contrary to 4 & 5
Vict. c. 10, in not limiting the sum to he raised,
and in imixising a tax on wild lands alone ; 2.
As exceeding tiie authority given to the district
coinicils 1)V sec. 4S of that act ; .'>. As inconsis-
tent witli the nMitiircmcnts of 12 Viet. c. 81, in
not s|)eiJfying tiie sum reijuired, or tlie purjiose
to which it was to lie aiijilied. And, senililc,
that it is necessary under this act, (s. 41, snli-sec.
22,) as it was under 4 i»t ,") \'ict. c. 10, that tlie
sum to be raised should 1)e specilied in tlie hy-
Law, and then a rate authorized for raising it ;
4. For taxing certain townshi[>s for si)eciKed
sums, without shewing for what purpose the
monej' was ie((uired. '/'///cc v. The Miiiikijxi/
Council of the Coiinlii of U'ltti r/oo, i) Q. H. r>72.
A by-l.aw p.assed by a township, authorizing
the levy of a rate to realize ill 00 for school pur-
jKises, having been i|uashed, the numicipality
then, without a secon<l meeting having been
called, ])assed another by-law (set out in the re-
port) for tile same purpose, which was .also
noved against on several grounds : — Held, on
the .several olijecticuis taken — 1. Tiiat the dis-
cretion to ap[)ortioii the sum reipiii'ed rested as
much with tlie council as with the school meet-
ing or trustees. 2. 'I'liiit the rate was not de-
clared on the ]iroperty assessed in IS.VJ (the pre-
ceding tinancial yen), iiut only determined by
reference to the assessed value of the taxable
property in that year. 3. That the r.vte not
being complained of as excessive, its being cal-
culated to realize mor.; than the preci.se sum of
£100 did not render tlie liy-law void. 4. 'I'iiat
the meeting was not i!idis])ensalilo. 5. That the
dutyimpose<l upon the clerk of the municipality
to furnish a list to the secretary of the school
trustees of the persons assessed in the sclio(d
section, was not mireasonable, or inconsistent
with the statutes, (i. 'i'hat the rate was properly
assessed ujion the wholo ratable property of the
school .section. 7. Tliat the pi'oviso of the by-law
sanctioning the receijits ]irotaiito ftom those who
had paid uniler the invalid by-luw diii not render
the second by law void. Jn n HcLu Ifai/i and
the Mnnh'qtaHtijof the Core if Toronto, 3C. P. 2,3.
A by-law imposing a rate for county purposes,
to be levied on the actual value of taxable pro-
perty in the county, is not objectionable, tlumgh
in villages, &c. . the taxes are directed to be levieil
on the annual value, for such direction is intended
only to apply to rates imjiosed for their own pur-
poses. Crierxon v. Provi.<ion(il .Miniiei/iol Council
of the Count;) of Ontario, 9 Q. H. (i2.3.
A township bylaw was iiuashed as to so much
of it as related to the raising a sum of money to
defray the demands of the county council of the
township, and as an eipiivalent to the goveui-
nient schoid grant, il'c, it not appearing on its
face that it was directed to meet a deliciency,
nor even tUat there was any, if that would have
authorized the hy-lnw. Semble, however, that
a township council has not power to pass a by-
law imposing a rate in aid of any county rate.
Fletcher V. Mnnicipiditii if the 7'oiruKhip of
Eu)>hra.'<iii, and White v. The Muiiicijialitij of
Culliniiwood, 13Q. B. 129.
A by-law for the construction of a new town-
hall, passed on the 22nd May, 1807, was moved
against, on the ground that it authorized expen-
diture for a purpose not under the head of ordi-
nary exjienditure, withmit having money in hand
or making the necessary provision by r.ate cir
I <ptlierwise to meet the demand. It appeared,
i however, that the sum reipiired was included in
the annual by-law for the year, passed on the
I 19th August, 18()7, u])on an estimate previously
\ made, also including it, which the .applicant had
voted to adopt ; tli.at the town-hall had been
com]ileted, .aceepteil, and paid for, and the land
on which it stood conveyed to the corporation.
A rule to ((uash the by-law was discharged with
costs. CHjIi and the Corjiuraliun of the Townshli,
\ of Moore, 27 Q. 1!. I'lO.
A by-law was passed on the loth .Tunc, 1S(!7.
providing for the purchase of a site for and tiie
erection of a town-hall, but not for meeting the
expenses, for which it did not apjiear that there
were surplus moneys on hand. On the 3!st of
August they passed the annu.al by-law for ordi-
nary expenditure, and, in ad<lition to the sum
re(|uire(l therefor, jirovidcd by the same by-law
for raising the amount in(uired for tlie site and
building. The site had been convej'cd to tlic
corporation and])aid for, and the liall completed,
and there were funds in the treasurer's hands to
pay for it : — Held, that although the cori)firatiim
might not have been strictly regular the by-laws
should not now be ([nashed, and the rule was
discharged, but without costs. Crant mid th,
Cor/inrativn of thr Touninhip if I'nMinch, 27 (>i.
B. 154.
As to what is "ordinary expenditure" as used
in the Municipal Acts. i~^ee Cross v. Cor/iorn-
tion of the Cilii ifottiiira, 23 Q. B. 288; ll';-;;//(/
V. Cor/ioriitlon of the Connli/ of Creij, 12 ('. I'.
479 ! McMaster v. Corporation of \eirniiirbl,
11 C. V. 39S ; Corporation of \Vei'itw:jrth v. (,'(;,••
poration (f Jfainillou, 34 Q. B. iiS'i.
AVliere for the purpose of erecting a market
house a municipal cmuicil would require to levy
a rate exceeding the two cents in the doUai'
allowed to be imposed by sec. 22.") of the Munici-
pal Act of 1S()(), it was Held, tliat a ratepayer
was entitled to an injunction restraining tliu
erection of the building by the council. ir(7/vr v.
Corporation of the Villiuje if Clinton, ISCliy. ."i,".
The limit of two cents in the dollar deniaiiiliil
by the Municipal Act of 18(!(>, as the maxiiiiuiu
of assessment, includes the special sinking fmiil
rate to be levied in respect ot past debts, /fi.
See 3^e^^ll.•lter v. Corporation of Nen-ninrhl.
11 C. V. 398, p. 2479 ; Corporation of Lincoln v.
Corjioration of yiaijara, 25 Q. B. 578, p. 225,
See, also, XIII. p. 2497.
IX. QUASIIINCJ BV-I,AWM OK KE,SOLl"rro.NS.
1. Who niai/ J fore.
Where on application to (piash a townsln'ii
by-law it was objected that the aiiplicant was a
246S
2469
MUNICIPAL CORrORATIONS.
2470
ml.lc, however, that
,,„wer to pass a \>y-
of any county rate.
,1- ,1,, To,ni.h,p of
'The Miiiiidl'iilt>U "J
action of a new town-
lav, 18W, was moved
,tita«th..rizeaexi.en-
u.ler the heaa of or.\i-
havhig money HI hand
prc.vfflon hy rate or
,i year, vassea on tht
,„ estinwte l>l~'^vionslv
,\wh the ari.hcant ha I
ic town-hall ha.l hee.
pai.Uor.anathelan.l
yeil to the corv^ration
vw was (lischargea w th
,,oranoin,fthcfowushn'
on the ir.th Juno, 1S(V7.
,so of a site for and the
imt not for meeting the
U ln..t appear tha there
uhand. OntheSlstol
e annual hy-law for ordi-
in addition to the sum
•ided l.y the same hyhvw
;;Huivedforthes.teand
•vd been c.uiveyed to tlK
and the hall eompleted,
iu the treasurer 8 hand, tu
"ihoughthe.>n--;;;>
tiiotlv regular the l>> l■^^^•
i^S,^ul the rule was
t costs. '.'Vm-M-«.n .
linary expenditure" as used
^ ;vi Q. B. r)8r).
I'vuoseof erecting a market
Jncil would re.iu>re to
,. two cents ni the doiuii
dl.Vsec.-2-25oftheMumo>^
,^Held,thataratepaye
injunction restnvnung la
^n^rhythecouncil. '"■''^.■
Uspoct of pf^st '^'^^'*''- '"•
'•o.•,-o,v<^;o»o//>"":;;'^•
o, XIII. p. -2497.
L -1..WS OU RESOLUTIONS.
Who maij Jfoiv.
Ltion to quash a town JV
Ited that the applicant ^^.>»^
non-resident— Held, that as a freeliolder of the
township lie had an interest in all its by-laws,
suHicient to enable him to move. In re Jh-Ld
IIai)(' v. Mitiilciiiiilitii ii/'lhc 'r<iii<iinhij> iif, and the
Ovrc nf Toronto, '2 0. \\ .317.
An owner of real estate whieli has lieen as-
sessed is entitled to move against a by-law,
though liis name does not aiipear on the roll.
liouhon and the Ton'n Coundl of the Town of
I'eti-rhorontih, l(i Q. li. 380.
2. Ohji'ction'i not Aitpannt on the liij-law.
Under sees. 15") and 10'2of 12 Viet. c. 81, this
court has tlie power of (juasliiiig a by-law, not
only for some illegality appearing upon the face
of it, but also wheru it has bcun made in sucli a
manner as it is enacted liy sec. l'.)2, it shall not
be lawful for any municipal corporations to make
it, e.g., without proper notice in the case of a
by-law to change a road. fn rr Lajlir/ii v.
Mnniriinil (.'onncil of Wi'ii/irorth and Jfallon, 8
Q. B. 232.
Semlde, that it is "onbtfnl whethei the court,
under 12 Vii-*- ■•.. Si, s. 1 ■")■"), would (piash a by-law
for an irrt^ ity in the manner of its passing,
though they ...ight hold it void if relied upon in
sui)port of something done under it ; and that if
they should (piash for such an irregularity, it
would rather be under tlie principles of the com-
mon law. //) ;•(' J/i/l and Ihf Miin'idiial (.'iinnril
of the Toinifhiji if WaNniilitnn, i) Q. 15. ,'110.
The court is not bound under the act to ([Uash
a by-law, unless illegal on the face of it. Where
it is attempted to be proved so by extraneous
evidence, it may bo discretionary with the court,
upon such evidence, when acting under their
common law jurisdiction, to say whether the by-
law shall stand or not. drhraon v. l'ron.<h)nitl
Muniripal ('(Hindi of till' Conn/;/ of (hilano, Q.
B. (i2.'l. AfKrmed in Siconl and tlw Corporation
ofthi- Conntij of Lincoln, 24 (l H. 142.
The court has no authority to (juash a by-law,
on application, except for something illegal ap-
pearing upon tlie face of it, or except, perhaps,
where it is shewn to have been passed under
eireumstances which, by the exj)ress terms of
the statute, make it illegal. Snthirland v. The
Municipal Conndl of thr Toicnship of J'Jast yin-
.wild, 10 Q. 1$. «2().
The court refused a rule nisi to <piash a by-law
on the ground that it was passed at a special
inciting called by a ineml)cr of the council, and
not by the town-reeve or other authorized olK-
cer. In re Hill and the Mnnicipnl Cnnndl if the
Toirnahip of Waisinijhani, U (}. H. 310.
The court refused to (piash a by-law, on tlie
ground that a (pioriun of the council was not
present at its passing as reipiired by 12 Vict. e.
81, s. 1()8. Sutherland v. Municipal Council of
the TowuMp of East yisaotiri, 10 Q. B. G2G.
Quiere, as to the power of the court to (piash
for objections not appearing on the face of the
by-law. Slandleij v. Municipalili/ if ]'c.ipra and
Hiinnidale, 17 Q. B. G'J.
3. Other CtMM.
A judge in practice court has no authority to
(luash a Ijy-law of the corporation. //( re Sainn
and the Corporation of Toronto, 9 Q. B. 181.
The C(nirt discharged, with costs, a rule for
(juasliing a by-law of a district council, which
had lieen almo'lutely repealed before tlie 12 Viet,
e. 81. In re Mcd'ill andthe Municipal Council of
the Count 11 of Peterhoromjh, 9 Q. B. 't&2.
Where the operation of a bylaw or resolution
is spent, it will not be i|uaslied. DanieLi and
the yfiinidpal Council o*'the 'J'liimnhli) of liurford,
10 Q. H. 478. See Ternj and the .)lunidj)alitii
of the Toirnship of Ilaldiniund, 1,5 Q. B. 380.
'l"he court will not f|uash a l)y-law repealed
after it has been moved against. In re Coleman
9 C. I'. 14(5. See In re Cui/ne and the Municipal
Cotinti/ (f Dnnidch, 9 Q. B. 309.
The court had no jurisdiction under 12 Vict,
c. 81, over resolutions of municipal cor^iorations,
to set them aside summarily in tiie same maijncr
an bylaws. //( re (.'lesar and the MunicipaUli/
of the Ton-n^hipo>'Carticriijhi, 12 Q. B. 341. Biit
see now 3() Vict. c. 48, s. 240.
Helil, that market regulations ma<lo by the
council might be (plashed, as orders or resolutions
under see. 1!)8 of the Municipal Act of 18(j().
Snell V. Corporation of tlie Town of liilledlle, 30
y. B. 81.
It does not appear necessary that a township
by-law should set forth the estimates on which
it is founded, and the court will intend that
proper estimates have been made in the absence
of evidence that they are wanting ; nor that the
by-law should state that the rates are calcul.ated
at so much in the pound on the actual value ;
and ill the absence of anything t<i the contrary
the court will intend that the council has fol-
lowed the directions of the st.'itute. Fletcher v.
^rnnid])aliti/ nf the Toicii.-ihiii of Fiiplirada, and.
White V. M'anidiialitijofColiui'jicood, I3(i.B. 129.
The 14 & 15 Vict. c. 51, s. IS, directs that a
copy of the by-law (to take stock in a railway)
shall be inserted at least four times in each
newspaper printed within the limits of the
municipality ; but tlie court ri'fused to ipiash a
l>y-law under which a large sum ha<l been bor-
rowed, because it had been published three
times only in one of two papers. A full copy of
the by-law was not publislied, but at the time
of passing a clause was added appointing a day
on which it should come into operation, and
directhig that the debt shouM be payable within
twenty years from that day, while in another
clause the debentures were made payable in
twenty years from their dates. The court, how-
ever — Held, that whether the 14 & 15 \'ict. c.
51, s. 18, sub-see. 3, or l(i Vict. e. 22, s. 2, sub-
sec. 4, were to govern, this was an irregularity
for which they were not bound to (piasli. lioul-
ton v. Town Council of the Town of Peterhorowjh,
10 Q. B. 380.
The court refused to quash a by-law for want
of a seal, as without the seal it could not be
treated as a by-law. In re Croft and the Muni-
cipalitij of the Toirnthip of Brooke, 11 Q. B. 2G9 ;
In re Mottashed andthe Cor/ioration of the Count;/
of Prince Edward, 30 Q. B. 74.
The court will only quash a by-law for illegality,
not for want of clearness of expression or a ditti-
culty in construing or applying its provisioiiB.
In re Smith and the at ij of Toronto, IOC. F. 225.
Remarks as to how far the court are hound to
qiiaah by-laws, even when moved against pro-
2471
MUNICIPAL CORPORATIONS.
2472
perly and fcnind bad. In re Simmons and the
Corporation of the Township of Chatham, 21 Q.
B. 75.
If for all that appear a by-law may be legal
it will be upheld ; and in this case, where it
was not clear upon the face of the by-law, nor
otherwise shewn, that the money to be raised
by it was for services not belonging to the current
year, the omission of recitals and provisions
which would in that case liave been essential
was held no objection. Gihuon and the Corpor-
atlon of the United Counties of Huron and Bruce,
20 Q. B. HI.
The statute does not make it strictly impera-
tive ui)on the court to quash defective by-laws,
even wliere the de^'jct appears on their face.
Hodgxon v. Municipal Council of York and Peel
and the lUuiticipal Council of Ontario, 13 Q. B.
268 ; In re Michie and the Corporation of the City
of Toronto, 11 C. V. 379.
Where errors in computation only are shewn
in a by-law, thougli extensive, the court will
lean strongly to support it, especially wliere it
has been acted upon, and M'here a previous in-
effectual application to quash it has been made
upon other objections, (irierson r. The Muni-
cipality of (Ontario, 9 Q. B. (j23, affirmed, as to
the extent t(j which the court is bound to give
way to objections not apparent on the face of a
by-law. !:>ecord and the Corporation of the County
of Lincoln, 24 Q. B. 142.
\^niere the county council, in equalizing the
assessments under sec. 70 of the Assessment
Act, C. S. U. C. c. 55, had intentionally capital-
ized the personal property in towns and villages
at ten per cent, instead of six, contrary to the
express directions in sec. 32, the court refused to
quash the by-law on motion, though tliey inti-
mated that it might be held insutlicient if relied
upon for protection. lb.
There being room for ;loubt as to the objection
taken, and reason to believe that many convic-
tions might have taken place under similar pro-
visions ni other by-laws, tlie court refused to
quash upon it. In re FenneU and the Corporation
of the 'Town of.Guelph, 24 Q. B. 238.
See Grant and the Corporation of the Townxhip
of Puslinch, 27 Q. B. 154, p. 2468 ; lie Piatt and
the Corporation of Toronto, 33 Q. B. 53, p. 3482.
4. Practice on Applications to Qua^ih.
(a) Time for Moviny.
[By the Municipal Act of 1S73, sec. 241, no ap-
plication to quash any by-law shall be entertained
unless made within oneyearfroni its passimj, except
in case of a by-law requiring the assent of the elec-
tors, which has not been obtained. By sec. 34~ where
a by-law imposini/ a rate has been promulgated in
the manner specijied, the application must be made
h'fore tlie lapse of t/ie ne-xt term after such promul-
'/ation.]
The court refused to quash a by-law altering
tohool sections, nearly fourteen months after its
^■assin;;, it being on its face legal and having
b<.<en jicted upon. Hill v. The Municipality of
Tecmni^iiXQC. V. 297 ; followed in Cotter w. The
Miniripality of Darlington, II C. P. 265. See,
also Walton v. The Corporation of the T'ownship
ofMonaghuii, 13 C. P. 401.
By-law regarding the appointment of a harbour
master. Application after two years : — Held,
too late. Jioi/art V. The Town Council of Belle-
ville, 6 C. P. 425.
A spent by-law or resolution will not be
quashed. Daniels v. The Municipal Council if
the Township of Barford, 10 Q. B. 478 ; Terry v.
Municipality of the Township of llaldimand, 15
Q. B. 380.
An application to quash a by-law establishing
a road, after two years had elapsed : — Held, too
late. iStandlei/ v. Municipality of Vespra and
Sunnidale, 17 Q. B. 69.
Semble— Such application should be prompt,
especially in respect of matters not apparent in
the by-law ; and if two terms are allowed to
pass, redress might well be refused on account f)f
laches. Scarlett v. Corporation of York, 14 C".
P. 161.
A nile nisi to quash a by-law to stop up a road
was refused, where the relator was aware of tlie
intention to pass it, and allowed two years and
three months to elapse before moving. /// re
Drope and the Corporation of the Toicnsh'ip of
Hamilton, 25 Q. B. 363.
The court refused a rule nisi to quash a by-
law passed eighteen months before, for licensing
and regulating houses of public entertainmciit,
the objection being that it was not, before tlie
final passing, approved by the electors. //( re
Sheleii and the Corporation of the Town of Wind.-
sor, 23 Q. B. 569.
A by-law passed in February, 1875, under the
37 Vict. c. 32, specifying the fees to be paid to
the municipality for every certificate for a shop
or tavern license, was not moved against until
14th of March, 1876, and the licenses granted
under it woulil expire on 30th of April, 1876 :
— Held, that on the ground of delay the court
would have refused to (piash. In re liichard.^un
and the Board of Commissioners of Police for tlir
City of Toronto, 38 Q. B. 621.
A resolution granting a petition for separation
from a school section passed on 7th December,
1867; motion to quash it in M. T. 18()8:—
Held, too late. Leddinqham and the Corporadun
of the Township of Bent'inck, 29 Q. B. 206.
The objections urged to a by-law to divide a
school section being technical : — Held, that they
should have been taken promptly, without alhiw-
ing a term to elapse. Taylor and the Corjionitioii
of the Township of West Williams, 30 (,*,. K
337.
Where parties complaining of the illegality of
a municipal by-law or resolution, permit a term
of the courts of common law to pass witiiout
movuig to quash it, this court will refuse an
injunction to restrain the municipality from en-
forcing the by-law. Carroll v. Perth, 10 Chy.
64. ^
Where a bill was filed to restrain proceedings
of a township council, on a resolution, which
named, it was alleged, a higher rate than \r.is
necessary to raise the sum recpiired for county
purposes, and the plaintiff allowed a term of tlit
common law courts to pass before moving for an
injunction— Held, (following Carroll v. Perth, 10
Chy. 64), that he came too late, the proper
course in such a case being to move at law to i
2472
Mntment of a harbour
sdution will not be
MaitidiMl Coumd »J
OQ.B. 478; 'Wrr// y.
irip of lluldimaiid, lo
1 a by-law establishing
,Ulai.sea -.-Hehl, too
ipalitU of re.si.r<t ond
ion shoiihl be proinpt.
natters not apijaruut m
, terms arc allowed to
l,e refused on account ol
joration of iork, UC
bV-lawtostopuparoail
relator was aware of the
allowed two years ami
, ijefore movnig. V'( i<
aion of the Toicnshp <;/
rule nisi to quash aby-
nths before, for hcensnig
of public entertammcu
.at it was not before tl.^
I by the electors. J^i
tioIoftheTownvfW^ad-
February, 1S75, under the
•ery certificate for a shoj.
Mot moved aganistuut.
e on 30th of April, lb, I).
Vound of delay the com-
K^!^SiersofPollc.fortl.
B. 021.
„K a petition for separation
1 tr, n. bv-law to divide a
'imc-a -Held, that they
:nPmptly-ithout allow.
West Willicms, 30 CI B-
.ulaining of the illegality of
rre8olution,penmta em
mmon law to Pf « :£t
this court will refuse an
{he municipality from eu-
Carroll y. Perth, 10 1, h).
filed to restrain proceedings
;cil on a resolution, which
1 a hiirher rate than was
hinSff allowed a term of tl
to pass before '""^'I'.'^H
ifSlEwingCaxroll.lerUi,10
■^can^e too !»*«' Htlwl
hae being to move at U«w
2473
MUNICIPAL CORPORATIONS.
2474-
ouash the resolution or by-law. The Conaoli-
datud Assessment Act of Upper Canada aa affect-
ing the (|uestiou considered. Gritr v. St. Vincent,
12 Chy. 330.
(b) Affidavits,
The affidavit of the applicant stated him to be
a ratepayer, and a resident liouseliolder : — Held,
not necessary to give any further addition of
deponent, linker v. Municipal Council of Paris,
10 Q. B. G21.
An affidavit in support of a motion to quash a
by-law is sufficient, though not entitled in any
court, if it appear by tlie jurat to liave been
sworn liefore a commissioner of this court.
Frawr v. \The Municipal Council of the Uuiteil
Countif-t of Stormont, Dundan and Glemjarii, 10
Q. B. 286; Kim/horn v. The Corporation of the
City of Kinij^itou, 26(1 B. 130.
But not unless tliis appears. Tn re Ilironif et
a/., and the Municipal Council of Amhersihunj,
11 Q. B. 458.
The commissioner styling himself merely "A
cominissiouer, &c. :" — Held, insufficient, Ih.
The applicant slKnild state that he is a resident
in the township, or has an interest in the pro-
visions of the by-law. The commencement of
an affidavit, "I, J. B., of the township of B.,"
is not sufficient. Bahc'^:k v. The Municipal
Council of the Townxhip of Bedford, 8 C. P. 527.
Held, that on the affidavits stated in the re-
port of this case, it sufficiently appeared that
the applicant, to ipiash a by-law of the city of
Kingston, was a resident of the city. Kiwjhorn
and the Corporation of the City of Kinijston, 2(5
Q. B. 130.
(c) Proof of By-Laws,
Held, that a by-law was sufficiently authenti-
cated for the purpose of a motion against it, by
an affidavit of the relator tliat the copy produced
was received by T. from the clerk of the council,
and delivered by him to the deponent. Finher
v. The MunicijHil Council of Vawjhan, 10 Q. B.
492.
Where the seal of the corporation was not
mentioned in the clerk's certificate, but was on
the same page with the certificate, just above it,
and opposite to the signatures of the reeve and
clerk — the by-law was held sufficiently proved.
Baker v. Municipal Council of Paris, 10 Q. B.
(J21.
On the application to quash, a paper was put
in purporting to be a copy of the by-law, authen-
ticated by the seal of the corporiition, and certi-
lied by the township clerk to be a true copy of
a by-law passed on, &c., (corresponding in date
with that moved against) ; also the applicant's
affidavit that the annexed copy of the by-law,
describing it accurately by title and date) was a
true copy of the by-law received by him from
the township clerk. On shewing cause against
the rule, it appeared, and was objected, that the
by-law was not annexed to the affidavit, and
there was no appearance of any paper having
been attached thereto ; but— Held, that the ob-
jection could not prevail. Bexsey and the Muni-
cipal Council of Grantham, 11 Q. B. 156.
The court will discharge a rule moved on a
copy of the by-law verified in a manner differ-
ent from that pointed out by tlie statute, unless
the reasons for such variance are satisfactorily
explained. Buchart v. The Municipality of
the United Townships of Brant and Carrick, 6 C.
P. 130.
On application for a mandamus two copies of
by-laws put in not being proved under sec. 190
of the Municipal Act, C. S. U. C. c. 54, could
not be read, but the same by-laws were set out
at length in affidavits filed, the deponent swear-
ing that a by-law was passed by the town council
"in words foUowing," which was hehl sufficient
for the purposes of tliis application. Sec. 190
provides for the proof of by-laws in general
cases, sec. 195 for the special cise of an applica-
tion to (plash. In re the Hoard of School Trustees
(f the Town of Sandwich and the Corporation of
Sandwich, 23 Q. B. 039.
The certificate was under the corporate seal of
the townsliip, but there was no seal to the copy
of by-law, nor anytliing but the certificate to
shew that it had been sealed :— Held, sufficient.
In re Scott and the Corporation of the Township
of Harvey, 20 Q. B. 32.
Tlie copy of the by-law filed was under the
seal of the nninicipality and sworn to have been
received from the clerk, and opposite the seal
was the signature, "^I. Flanagan, City Clerk,"
with the words, "a true copy," above : —Held,
sufficiently veritied. Kini/horn anil the Corpora-
lion oftlui City of Kingston, 26 Q. B. 130.
Held, that the by-law, upon tlie facts stated
in this case, was sufficiently certiKed un<ler the
seal of the corporation. /« re Miles and the
Corporation of the Township of liichniond, 28 Q.
B. 333.
(d) Rule.
The rule to ipiash a by-law need not be en-
titled "Tlie Queen v. The Council," but may be
"In the matter of A. and tlie council." /)( re
Coni/er and Peterhororouyh Municipal Council,
8 Q. B. .349.
The rule nisi was entitled " In the matter of
appellant, and — — respondent :" — Held, no
objection. McLean and the Corporation of the
Town of St. Catharines, 27 Q. B. 603.
By 12 Vict. c. 81, s. 155, corporations had not
less than eight days to answer the rule nisi ;
therefoie a rule granted and served on the first
Saturday in tenn was not retnrn.able within that
term. In re Sams and the Corporation of To-
ronto, 9 Q. B. 181.
[Now by the Act of 1873, . . 240, the court
may quash "after at least four days' service" of
the rule nisi.]
The rule, obtained near the end of the term,
was made returnable eight days after service.
Defendants appeared, and objected that it should
have been to shew cause on a day certain : —
Held, that this objection, if fatal, was waived
by the appearance. Pern/ v. The Town Council
of the Town of Whitby, 1.3 Q. B. 564,
Defendants did not support their by-law to
take stock in a railway, and the court refused to
2475
MUNICIPAL CORPORATIONS.
2476
hear counsel on behalf of the railway company,
ns the rule was not directed to them. In re
JiilliiiijH awl til)' Miniiriiml ('oii)ir'd of tin- Town-
Mp of Uloiict'Mn; 10 i-i. B. 273. But see lif
JlcK'niiiou fuul till' ('nr/iordtUm of the ViUitije of
Cahloiiiii, .S.3 Q. 15. .502.
A by-law was passed by the united townships
of Smith and Harvey, to levy a certain sum on
lands in H., to defray the expenses of a re-sur-
vey of that townshi)). The union having been
dissolved — Held, tliat an application to (juash
was properly made by a rule calling on the cor-
poration of H., upon a certiKed copy obtained
Jrom tlie clerk of !S., the senior township. //( /v
Scott and the Corporation of the Townshi]' of
Harvey, 2(j Q. B. 32.
See In re Ifohlen and the Corporation of the
Toivn ofBdltviUe, 39 Q. B. 88, p. 247G.
(e) Costs.
When the council, on being served with a rule
nisi, re]>caled the by-law conipl.iined of, they
■were still obliged to pay the coats of the appli-
cation. Jn re ( 'oi/n<- iind the Mnnivipal Conned of
Dunwieh, 'JQ. B.'SOO; 7/) re Coleman, 9 0. 1". 14(i.
The 14 & 15 Vict. c. 109, s. 3.5, giving costs
on application to (juash by-laws, has not a retro-
spective operation ; and the court therefore re-
fused to make defendants pay the ct)sts of an
application on which a by-law had been quashed
before that act. Broirn v. The Munieiiial Conn-
eil of the Coiudij of York, 9 Q. B. 453.
Where a by-law was defective only in part,
and the rule asked to (puash the whole, costs were
refused. Pidtersun and the Corporation (f the
Count ji of V re 11, IS Q. B. 189.
The corporation not having appeared to the
rule to (juash a by-law, which was held valid,
it was discharged without costs. Kelbj and, the
Corporation of the City of Toronto, 23 Q. B. 425.
In the eo]>y of the rule nisi first served to
(juash a Ijy-law establishing a roatl, the appli-
cant's name was by mistake written James
instead of ■Joseph Thompson. The road also
passed through the laud of one James Thompson,
with whom an arl)itration had taken place, aiul
the cori>oratiou supposing him to be the appli-
cant, prepared affidavits in answer. Afterwards
the mistake was discovered, and a correct copy
of the rule served. The court, in making it
absolute with costs, directed the costs incurred
by the corporation in consecjuence of the error
to be deducted. In re Joseph Thompson and the
Corporation of the United Townships of Bedford
et al., 21 Q. B. 545.
On application to quash a by-law passed on
2l8t December, 18()9, under the Temperance Act
of 18()4, and submitted to the electors on 2nd
February 1870, it appeared tliat no seal had been
attacheil to the by-law until after the 2nd March,
1870 : — Held, that being no by-law it could not
be quashed ; but the rule to quash it was dis-
charged without costs. In re Mottashed and the
Corporation of the County of Prince Edward, 30
Q. B. 74.
A rule nisi having been obtained to quash a
by-law, the legislature by a statute declared the
by-law valid, and the rule was afterwards argued
on the various objections taken, in order to decide
who should pay the costs of the apiilication.
The nuniicipality were ordered to pay them, on
the ground that the debt of the town was not
truly stated in the by-law. I'er Wilson, J. — In
future in such cases the rule should not be
argued ; and it woidd be well to direct in the
statute that the petitioners to confirm the by-law
should pay all proper coHts incurred in any appli-
cation to (juasfi it. //( re Thomas Ifolden anil
the Corporation of the Toien of Btllerille, 39
Q. B. 88.
See Be Mnrrell v. The City of Toronto, 22 C.
r. 323, p. 24S2.
5. Necessity for Qiiushimj before Action.
Semble, that a party is not necessarily re-
strained by sec. 155 of 12 Vict. c. 81, from
briuL'ing an action till tlie l)y-law, under which
the defendant assumed to act and justifies, has
been (juashcd, where tlio l)y-law, if legal, would
not warrant the act done. Dennis v. Jluijheset
al., 8 Q. B. 444. Sec also Black v. White' et al.,
18 Q. B. 302.
Held, under 22 Vict. c. 90, s. 201, that before
an action can be maintained for anything done
under a by-law a month's notice of action juust
be given, and a month allowed to el.apse after the
quasliiiig or repealing of such liy-l:nv. The action
must also be against tlic corporation itself, not
against any person acting under the by-law .
Carmirhael v. Slater, 9 C. 1". 423.
Action for illegally depriving plaintiff of his
tavern license. Plea, that plaintiff carric<l on
business under a by-law, the provisions of which
he h.ad infringed, and thcre))y his license became
forfeited. Demurrer, that defendants had no
power to p.ass such a by-law : — Held, that no
action could be brought for anytliing done imder
the by-law till one month after it has l)ceii
quashed ; and the plea therefore was good.
Smith V. The Corporation of the City of Toronto,
11 C. P. 200.
22 Vict. c. 99, s. 201, which prevents actions
being hrouglit for anytliing done under a by-law
until it has been quashed, applies only to suits
for the recovery of dam.agea, not to replevin.
Wilson v. Corporation of the County (f Middlesex
etal., 18 Q. B. 348.
Where the rate on the face of the bylaw does
not appear to be retrospective, though retro-
spective in fact, replevin will not lie against
the officers who enforce it ; it must be (juashed
first, and then the remedy is against the corpo-
ration. Hayncs v. Copcland, et al., 18 C. P. 150.
See Jfunieipality of East Xissouri v. Horse-
man, 1() Q. B. 57(5, p. 2494; Corporation if tlw
County of Lincoln v. Corporation of the Town of
Niaijara, 25 Q. B. 578, p. 225.
XI. General Po>ver.s and Duties of Munici-
pal Corporations.
1. To Remunerate or Indemnify Members.
Semble, that under 4 & 5 Vict. c. 10, and 9
Vict. c. 40, a salivry might be granted to the war-
den of a district council as warden, but by a by-
law only, not by a vote or resolution merely.
W I '1 1
k a.
2476
,n, in order to decide
of the aiiplication.
red to pay them, on
■ the town was not
I'cr Wilson. •"•—{•^
rule should not bo
veil to direct in the
;o confirm the by-law
ucurred in any apph-
Thoma-x //oWe» ««'
,a;,. of Bdkvdie, 39
CIUJ of Toronto, 1'i. C.
Ymij hifore Adion.
i« not necessarily re-
lo Viet. c. 81, from
. hv-law, under which
act and iustities. has
by-law, if legal; w'luld
o Bhwk V. Wldiv ft at.,
00 s. 201 , that before
neil' for anything done
s notice of action must
,,wcd to elapse after the
mch by-law. The action
. cornoration itself, not
^iug under the by-law.
:-.!>. 423.
epriving plaintiff .of his
that plaintiff earned on
the provisions of which
lereby his license became
that defendants had 1.0
by-law -.-Held, that no
for anything done under
,„nth after it has been
■a therefore was good.
,n of the City oj lorunto,
which prevents actions
L." done under a by-law
LCapplii^s only to suits
unagis not to replevm.
\fthe(Joiu,t!JoJiMiddlcM
L face of the by-law docs
tospective, though retro-
iviii will not le agains
le it • it must be (luashe.l
ledyisagahistthecoiT.,.
l,'land,ctal., ISCl-l^O-
Ead Xix^sonri v. Jlorm-
1 "494; Corporntioiioj tiu
tvpomtion of the To^cn oj
p. 225.
, AND DUTIEO OF Mu.NR'I-
BPOKATIONS.
\o, Indemmfij Memhm.
4 & 5 Vict. c. 10, ami 9
■iglit be granted to the war-
y as warden, but by a by-
Ivote or resolution merely.
2477
MUNICIPAL CORPORATIONS,
2478
Ri-il'iiKi V. 7V((! Dldrict Council of (he DiMi-ict of
Llotr, 5Q.B. 357.
Under 12 Vict. e. 81, township councils could
not provide for the remuneration of their own
momi)ers, they not lieing "township oHicers."
/lire ]Vrii/hl and thi' ^liinici/xil Conucil if tin-
Township of Ciirnmdl, (i. 15. 442 ; JJoiiicU v.
Mniiit'i/Jiil Council of t/ic Tun-nnhi/i of Biiiford,
10 Q. B. 47S.
A by-law to indemnify a councillor for the
costs of a contested election : Held, illegal, and
(plashed with costs. /// /v /)V// v. Miinirijiolili/
ol'thi- Tou-nsliip ifMannrs, 2 (". 1'. .WT ; 3 ('. 1'.
400.
At a meeting of a council in 1S5(!, defendant
being in the chair, it was resolved that the trea-
surer shouhl pay defendant a specilied sum for
salary aseimncillorfor 1S.")(5, and for otlier things :
— Held, that any payment to defendant for such
attendance was clearly illegal, and could )je re-
covered from him in an action for money had and
received Ijy the council for the succeeding year.
.Semble, also, that the treasurer might be indicted
for making such payment. Miniiciim/ifi/ if the
Townahiii if Ettst SiK.ittnii v. Jloiniinan, 1(5 Q.
B. 57(>. See the ease in full, post p. 2493.
Under 22 Vict. e. 99, s. 2()2, municipal cor-
porations could not remunerate their members
for travelling expenses in attending the council ;
but only for attendance in council. Jn n: Pal-
tefxou III '/ ihii Corporation of the Countii of Gray,
18 Q. B. .89.
A by-law directing p.ayinent of $30 to each
councillor, " being t<20 for services as councillor,
.and .*!10 for services for letting and superiutend-
ing repairs of roads :" — Held, Iwd, as not within
tlie power given by C. S. U. (.'. e. 54, s. 2(i9.
fjliiikic- and (lir Corpiirntiun of the Toirns/ilji if
Hamilton, 25 Q. B. 4G9.
On a bill by a ratepayer, tiled in the same year
that the by-law in tlie last case was (juashed, the
court ordered the members who were defendants,
to repay to the uorpoi'ation the .^10 a year they had
respectively received ; but, Hekl, that the rate-
payers were not entitled to a decree restoring
tlie sums actually paid for the years between
1S59 and 18G5, under similar by-laws, except to
the extent that such payments exceeded the
statutory limit. BlaLic v. Staples, 115 Chy. 07.
The corporation of a town, at their list meet-
ing in the year, passed a resolution to present a
complimentary address to the mayor, who had
held the position for several years, and was aliout
to retire, and to grant him iiiiKiOO as a small tolieu
of tlieir appreciation of his long and faithful ser-
vices, and authorizing the chairman to sign an
order upon the treasurer for that sum. On the
same day they passed a by-law for the payment
of accounts passed for the year, giving a list of
them, which the treasurer was <lireetetl to pay,
.lud including this sum to be paid to the mayor,
" as per order of council." It appeared that the
whole taxes of the town for the year amounted
only to §3324 : — Held, that the by-law and
veaolution, so far as regarded the said payment,
were beyond the power of the corporation, and
must be quashed. McLean and the Corporation
ifthe Town of Cornwall, 31 Q. B. 314.
A councillor or reeve of a township is entitled
.19 compensatiou for his services to the per diem
allowance provided for by tlie Statute only ; and
any over-payments may l)e recovered ba< k by
the municipality; the word " othcer" u.ieil in
tlie statute not applyiii^f to the reeve or a coun-
cillor. He will be entitled, however, to receive
from the municipality payment for moneys out
of pocket, advanced by him on account of the
business of the municipality. (,'urjiuration of
•St. I'iuirnl V. LI III r, 13 C'liy. 173.
2. /'((///;,• BiiUiliiiiis.
Tile niuniciiial council of I'rc.icott and Tai.-i.sell
passed a by-law to raise money for building a
registry ollice in itus.scU, and eiiucted that the
rate shoulil be levied only on the townships in
that county. This by-law was (piashed, on the
grouiul that as the ollice when liiiilt, woulil con-
tiiiue the property of the united I'oinitics until a
separation, the expense of erecting it must bo
borne by Itotli counties. .Smith v. The Miniieijitit
('ijiiiiril iif fill' I'liiliit (\iuiitie.i if I'n ici/ll iiHil
Ji'llssell, 10 (j. \i. -282.
The municitiality of a township can dispose of
the town hall when tliej' think another situation
woulil l]e more convenient. The by-law pro-
vidcil that any money al)ove the proceeds of the ,
ohl hall retiuircd for the erection of the new one,
should be levied on the ratable property of the
township, hall in the presejiL and the other half
in the next year, lint it did not lix the amount
or the rate to be levied, or contain the necessary
recitals and provisions, and this part <if the by-
law was therefore held bad. /// re llairlce and
the Muiiiripulily if Wellisley, l.S Q. B. (J.S().
The court, under the circumstances of ^his
case, refused to (juash a by-law for the erection
of a town hall, the objection being that they had
already by jnevious by-laws selected another
site, and contracted to build it there. Fonster
mill till' (\n'pi)l'atlllli if llir Tull'Hc-Jill> if JiU.IS, '2i
Q. B. 588.
The court h.as not the power of restraining
councillors of an incorporated village, in the duo
exercise of their constitutional power, from
changing the site of a pi'opo.ied town liall and
market, although the site first selected had been
accpiired by the corporation for the ])urpo8e, it
not being shewn that any change of circum-
stances had been made by parties on the faith
of it, or that any corrupt or improper motive
actuated the members of the council in making
such change. Little v. Wallaeehuriili, 23 Chy.
540.
A by-law to raise money wlierewith to build a
town hall and market, approved of by the vote
of the ratcp.ayors, did not specify any site on
which the buildings were to be erected : — Held,
that this left the councillors unfettered in their
choice of site, although at the time there was a
resolution on the minutes of the council ailopting
a particular one, and which had been purchased
by and convej'ed to the corporation for the pur-
pose, lb.
The corporation of a village, on the 5th of
August, 1801, passed two by-laws. The first
provided that the corporation should purchase a
site for a town hall for $250, and that the reeve
should issue his draft for said sum, payable Ist
November, 18(jl. The second, after reciting that
2479
MUNICIPAL CORPORATIONS.
2480
the inlialiitants were desirous of erecting a town
hull, and that there would lie a large surplus in
hand after payin;^ for the site, and the ordinary
expenses of the vdlaue for the year, enacted that
$750 he aiipropriated for the erection, and that
the reeve should issue his drafts, payalile Ist of
Novend)er, 18(il. A hydaw authorizing a loan
for the same purjiosu, payahle in fourteen years,
had heeu Huhniitteil to the electors in Juno pre- I
vioua, anil rejected l>y a large majority, and
when these liydaws were pasaed there had been
no hydaw passed to provide for the ordinary ex- ,
peniliture of the year, and no existiuL' surplus ;
was shewn ! — Held, that no by-law sliould he
passeil authorizing an expentlituro for extraor- 1
tlinary puriioaea, unless out of unappropriated ;
money in hand, or unless the by-law provides
expressly for raising the necessary money, or is
not to come into ctJect until some other by-law
is passed for the purpose. IJoth by-laws were 1
therefore ([uaslied. .MrMitntir v. The ('(irpani-
tiun of Xiwmarkct, 11 (J. 1'. 398.
As to the obligation to provide offices for the
county iittorney and clerk of the jieace. See
Li'i'H (iiiff t/ii' Coriiiirathni nf tin' Coiiiih/ of' ('uric-
toil, .S;i Q. B. 400.
There is no obligation upon a municipality to
provide an ollice for the (llerk of the Division
Court. (rW//i/i V. ('(irpontlloii nf tlie City nf
Jlamilfoii, 3/ Q. B. 510.
The town of St. Catharines was authorized by
statute to issue debentures to ,t;45,248, for which
a special rate was directed, the proceeds to form
a sinking fund. By the same act the town M'as
prohibited from p.-vssingany by-law to create any
new debt extending beyond the year in which
such by-law was passed, until the debt was re-
duced to i'2r),0()0. The special rate authorized
had been duly levied, but it was alleged that it
had been applied to the general purposes of the
town, and the debt had not been reduced. De-
fendants denied the uiis.applieation of the fund,
but did not shew how it had been applied ; and
with a view of inducing the county council to
remove the county town to St. Catharines, the
town council of St. Catharines, without any by-
law, contracted with certain builders to erect a
gaol and court house for the county at an outlay
of t".S,00(), to be completed in two years. Upon
an application, at the instance of certain of the i
holders of said debentures, the court reatrnincd
the town from jjroceeding with the buildings, i
On appeal to the full court, the injunction was I
dissolved, it appearing that the contract had i
been cancelled, and no liability incurred exten- !
ding beyonii the year. On production of the
contract, it appeared that the rescission had been
effected by cancelling the signatures to the doc-
ument, which being objected to .as not legally
discharging the corporation from liability, the
court, as a condition of dissolving the injunc-
tion, required a formal cancellation of the con-
tract to oe made. VanKonghnet, C, dubitante
as to any necessity therefor. T/ic Ediiihtirah Life
Aummm-p ('<>. v. Thi' MiiniripaHtij of the Town of
St. Cat/iarinci, 10 Chy. 379.
See Oibh and The Corporation of the TownMp
of Moore, 27 Q. B. 150, p. 2468 ; Grant and the
(Corporation of the Township of Pudinrh, 27 Q.
B. 154, p. 2468 ; Wilkie v. Corporation of the
Village of Clinton, 18 Chy. 557 p. 24(58.
,3. Seioem and Local Improvements,
A municipal council, under 12 Vict. c. 81, 8.
31, cannot appropriate the revenue arising from
a tax imposed on the owners of dogs in only a
part of tiie township to the improvements of the
public streets, and to other purposes within the
limits of such part. In re Rirhmond v. Thr
Miniirl/iii/lli/ (fliii' 'rdirnxhipof the Front of Leedn
tuid Ldumlowne, 8 Q. B. 5(17.
Under 12 Vict. c. 81, and 10 Viet. c. 181, a
by-law imijosing one uniform rate for draining
into the coinnion sewiira of a city of .")s. per foot
frontage, to be charged upon the pro[)rietors of
real property for eacli and every foot frontage of
property draining into the said sewers: — Held,
iivalid, as being an arbitrary rate, not taxed in
proportion to the assessed value of the property,
and not maintainable under the U> Vict. c. 181,
s, 1.'). B.I- pitrtr Aldmll v. City of Toronto, 7
C. P. 104.
Replevin. Defendants avowed under a by-
law of the city of Lond(ui, passed under the
19 & -20 Vict. c. 97, on the 11th of .January, 18r)8,
averring that the amount of real property
Ijcnetited by certain sewers mentioned in the
by-law an<l statute was £29,508, " according to
the aasessnienl leluins for the same and the said
by-law" : that a rate was directed to be levied
on the proprietors, of whom plaintiff was one,
and that for it the plaintili d goods were seized.
The plaintiff demurred, on the ground that the
rate nnposed by the by-law was for 1858 upon
the assessment returns of 1857, whereas it should
have been upon the assessment of 1858 ; butt-
Held, that the plea was good. JleCorniick v.
0<(A/<',//, 17 Q. B. 345.
The Municipal Act C. S. U. C. c. 54, authorizes
the clerk of the council to "examine and finally
determine" whether petitions are signed by the
recjuisite nund)er of owners of property to be
benefited by the improvements asked for, and a
certificate lieing given by the clerk the court has
no power, except in a case of fraud or mala fides,
to interfere. /« re Michh- (iinl. the Corporation
of the City of Toronto, 11 C. P. 379.
Held, that the 22 Vict. e. 99, s. 290, sub-sees.
18, 20, giving power to municipal corporations
relating to sewers, applied to sewers already
constructeil by general taxation, not to those only
which might afterwards be built. Sub-sec. IS
authorizes a by-law to compel the draining "of
any grounds, yards, vacant lots, cellars, private
drains, sinks, cess-jiools, and privies," and to
assess the owners with the cost thereof if iloiu-
by the council on their default ; and sub-sec. 20
"for charging all persons who own or occupy
property which ia drained," or required to be
drained into a common sewer, with a reason-
able rent for the use of the siune. The by-
law in (juestion enacted that "all ground's,
yards, vacant lots, or other properties abutting
on any street, " should be drained, .and fixed tlie
rent to be p.aid : — Held, not objectionable, .is
including other properties than those mentioneil
in the statute, for if the word "property" in
sub-sec. 20 could include only the kinds of pro-
perty mentioned in sub-sec. 18, it might receive
the same construction in the by-law. fn re Me-
Cutehon and the Corporation of the City of Toronto.
22 Q. R 613.
2480
2481
MUNICIPAL CORPORATIONS.
2482
wprovcini'nln.
ar \2 Vict. c. 81, »■
•evonue nrising from
rs of <lo«8 >" ""'y. '^
iiiiiiroveiuentH of the
,,uri.o8c8 within the
,f ihrhi'wml V. 7/"
„/• thv Front of Lii<l'^
»>7.
,1 ifi Vict. c. 181, a
nil rate for .IraiiU'iK
a city of rw. per foot
(m tlie prolinetora Ot
.very f<'ot frontage of
saitl sewers :-Heia,
arv rate, not taxc.l in
value of the proi-erty,
,r the U-> ViLvt. e. 81.
V. ('(7// '/ Jurouto, 7
I avowed uniler a hy-
on, passed uw^er the
, llthof ■lanuary. IboS.
,nt of real nroperty
irers mentioned in the
£•29,508, "according to
r the same and the sau
,s directed to he levied
honi plaintiff was one,
tit =, goods were- sei/A^l.
on the ground that the
law was for 18r>8 ui..m
[ 1857, whereas it should
ssment of 1858 ; hut :-
^s good. MvCorimck v.
S.U.O.e. 54, authorizes
to "examine and finally
itions are signed hy the
vners of property to be
i-ements asTied for, and ;i
,V the clerk the court has
ise of fraud or mala tides.
\Hi<- and th' Cvrporahm
1 C. P. 379.
^t c. 99, s. 290, sub-sees.
, municipal corporations
i>,)Ued to sewers .alreai y
taxation, not to those on y
lis be Imilt. Sub-sec. IS
Icompel the draining ot
leant lots, cellars private
,1s, and privies, ' and to
the cost thereof if done
r default ; and sub-see. .0
sons who own or occupy
lined," or required to Ue
,n sewer, wit^ ^,r"^"""
. of the same. Ihe by-
■ted that "aU grounds,
other properties abutting
be drained, smd hxed the
ild, not objectionable, as
•ties than those mentione>l
■ the word "property m
uleonlythekinct8ofi.ro.
ib-sec. 18, it might recene
' in the by-law. {"'" V
■ationofthcVltiiofTonmto.
The court inclined to think that the owner or
occupier of the property might legally be allowed
to commute for the annual rent by payment of a
fixed sum, and refusoil therefore to (piash the
clause authorising such nn arrangement. The
sower rent not l)eing a cliarge upon the lan<l : —
>{clil, that payment of it could not be enforced
hy the same means as the ordinary assessmentH.
Ih. .See also Moore, v. JlyiifMH al., 22 Q. H. 107.
A by-law passed in 1805 to levy a rate for cer-
tain local improvements in the pavement of
sidewalks — after reciting a previous resolution
accepting a tender for the work, and autliori/.ing
a l)y-law to levy a certain rate per foot frontage
on tlio owners of real est.ito on the parts of
several streets named, and that the required sum
should be raised liy local taxation upon the pro-
prietors of the several lots of land aajoining said
sidewalks iinmeiliately benefited tiierel)y, "ex-
cept tliat part of .James street opposite the mar-
ket place, and those parts of Church street
opposite the several churclios and schocd-houses;"
and that tiie i)erson8 named in the first column
of the schedule annexed to the by-law wore pro-
pi-ietors of tlio lands adjoining said sidewalks,
not before excepted, and were immediately bene-
fited thereliy ; and that the whole of the said
property so benefited was by the assessment roll
of loii.'i rated at" .$r2,.')54, &e. — provided tliat
there shouhl lie raised from said jiroprietors 22,V
cents in the 8, and that the collector for 18()f)
should collect the rate in the usual way. It
then repealed a by-law of 18()4, authorizing the
levying of the frontage rate above referred to.
The work in (piestiou had been begun, finished,
■ind paid for in 1804, with the exception of .S(i5!l,
which was paid before the passage of the by-law
of 18()5. It further appeared that persons were
rated .as jiroiirietors whose names did not appear
on the assessment roll : that all the streets
affected were grouped together and rated at the
said sum, instead of being assessed separately ;
and that the whole of plaintiff's property at the
corner of tvvo streets was assessed, wliereas the
flagging extended over only a portion of it : —
Held, that replevin would not lie against defen-
dants (the collector and hia bailiff) for enforcing
the r.ite : that assuming the by-law to be defec-
tive in providing for a debt of the previous year,
it was merely providing in 1805 for a debt con-
tracted and provided for by the by-law of 1804,
but provided for imperfectly, which, semble, was
uot a violation of tne rule against retrospective
debts, but a mere repeal ,f a defective, (loul)tful
or invalid r.-vte, imposed within the jurisdiction
of the council, for .another free from .ill objection.
Held, .also, thrt it w.as no objection to the by-
law that certain proprietors were rated for the
spcci.al r.ate who were not; on the general .assess-
ment roll ; nor that the assessment v.alue of 1804
was taken instead of that of 1805, as this did
not appear on the f.ace of the by-law an(l could
not therefore be taken in this action ; .and that
the grouping the streets wiia legal, and w.as at
all events an objection on motion to qu<ash the
by-law, and not open to plaintiflf in this action.
Held, also, that the whole of the plaintiflf 's pro-
perty, as assessed, was liable, though the flagging
extended over a portion only, as no doubt the
whole was benefited by the partial improve-
ment. Hayties v. Copeland et al., 18 C. P. 150.
There must be a by-law for the necessary as-
sessment for the watering of a street, passed
156
subseiiiiently to, and coiiHu<iuent upon the pn-
SL'iitation of the rcfjuired petition therefor, and
after the fullest opportunity given to any rate-
nayur to object to ita passage ; and a resolution
for that purpose, passed l)y a municipal corpo
ration under a by-law antecedently made, and
wliicli authori/eil this mode of proceeding, in
stead of Jiy by-law, was therefore i|uaslied, but
without costs, as the aiiplicaiit iiad been one of
ippl
ill a'
the petitioners, was well aware of it.s oliject, had
enjoyed the lienelit of the resolution, and had
been ililatory in complaining. In n Mm-rdl v.
Tki- CUij of Toronlo, 22 C. P. .'VJ.S.
Sub-spc. 2 of sec. .140 of tlie Miiiiicip.al .\ct.
I80(!, autliorizim a by-law to water a portion of a
street only. Such by-law need not name a
day when it shall take elfect. Where such a
by-law pro'-idud tiiat a Hpccial rate should lie
levied to be estimated on the contract price for
such watering, without naming the sum to be
r.aised, but the work hud ticcii done, the court
refused, in their discretion, to (|uash tlio liy-law.
AV Plitl! V. The ( '(ii'poniliiiii iifllii' ( 'ilij itf '/'iiroiitii,
n.*) Q. ». 5.3.
Where the by-law (U'dored a special rate on a
])ortiou of a street to pay for watering " said
street:" — Hehl, tliat "said street" referred to
only said portion of that street. //'.
4. Drahtanc if hiiKh.
To a by-law, passed under .32 Vict., c. 4.3, (>.,
w.as annexed a schedule (declared to be part of the
by-l.aw), entitled, "Schedule showing the bene-
•it to bo derived by e.ach lot from the drainage
to be performed under the by-law" ;— Hehl, that
such a by-l.aw, containing such a scliedule, suffi-
ciently indicated th.at the lands .so iisso.isod were
assessed as the only lands witliin the municipal-
ity regarded .as lionefited by the propose»l work,
and th.at it w.as not necess.ary that tlie by-law
should specify the mode of ascertaining and
determining the property to bo benetitcd under
sub-sec. 4 of sec. 2 of the said .act. Held,
also, that, supposing the fpiestion opun for the
consideration of the court whether or not the
lands assessed were the only lands benefited,
which it was objected the by-law di<l not shew,
the onus of proving that other lands were also
benefited, whicli should have been assessed. Lay
upon the .applicants .ai;<ainst the by-law, and that
in this they had failed. But — Held, that the
objection that all the Lands which would be
Ixsnt.lted h.ad not been assessed, or that the
assessments upon the respective lots were over-
charges, or that the l)y-Law did not provide
properly for determining what lands were bene-
hted, were not gi'ounds for moving to qu.ash the
same, .as by the said 4th sub-sec. .an appellate
tribunal is .appointed. Held, also, that an objec-
tion that the petition mentioned in the by-law
was not signed by a majority of the resident
owners of property .assessed, &c., w.as not open
to the applicants upon the motion, but if it were
the onus of proof was upon them, and in this
also they had failed. Held, .also, th.at the 3rd
sec. of the by-law, set out in the case, was not
open to the objection that it did not properly
provide for a special rate sufficient to include a
sinking fund for payment of the debentures
therein mentioned, but provided for levying and
raising certain instalments, with interest. Held,
2483
MUNICIPAL COUrOKATlONH.
2 184
I';' r
.lino, tliiit tlu! Iiyliiw iii'cil not iinniu a diiy in tlio
linaiii'iitl jx'iir from which it whh to tiiku ud'uct,
ii.H thin wiiH not r('i|iiir<!il liy tliu Htatutu whicli
autlioi'i/cil it. //( (■'■ Mtinhjiiim ri/ it ill. iiml tin-
Cor/>i))Vtii>H of the Tnwim/iij) of Jtitli'nj/i, 21 C. 1'.
Ti. T(i /iii/iiiMi Tii//n or Jliirhiiiir Diuk.
Hull!, that unilur tiic VI Vict. o. «1, b. (iO, huI.-
spc. 7, 11 town coi'iioration hiul power to inijioHo
iv tax on tinilicr .iiid .sawlo^H, in order to pay tlic
Biliary of the IimiIhuu- nianttr, and to line or im-
prison the owners in default of payment. l,)na'ro,
a.s to tlieir power to iletain the 'nher tl.urefor ;
l>ut the eoni't refused to i|uaNh iliat part of the
liy-law, (nider the circuinMtancc'B. /iiii/urt v. Tlir
Tnin, Cuiinri/i./ J!illrri//r, ti C. 1'. 4'jr).
A nnniiciiml corjioration l>y liy-law anthori/ed
individuals to erect wharves, and to rennnierate
tiiemselvcs liy chargiuL' tolls on goods, part of
\\ hieh were directed to 1)0 paid to the treasurer
of the nnniicipaliLy. The hartiour muster was
cmpowiMcd to detain nny vessel having on hoard
any goods' on which these tolls were unpaid, or
any such goods ; and a tine of not less than §1
nor more than .S'lO, ^^'a.^ imposed on any master
or owner of a \esscl refusing to comply with
these conditions, to he enforced l>y distress and
fialu : Ifidd, that the liy-law was illegal. .'//
/■' //iKjiiiiiiiii 1 1 III. mill till' < 'nr/iiiriiliiiii uj' tlii'
Tnirii 'o/t/inii .SiJiiiiil, -JO (}. H. "kSS. But see 24
Vict. c. (i3, since passed.
Held, that a clause in a by-law which imposed
tonnage dues on scows, craft, rafts, railway
cai's, I'tc. , coming into the city of Kingston, con-
taining tirewdod, to liccxiMisedor otl'ered for sale,
or marketed for consumption within the city, vv.as
illegal, and not authorized liy suh-sec. 1") <if sec.
L'!»4, of the M .inicipal Act, C. S. U. C. c, 54 ; the
toll or iluty must 1h^ inipo.scd upon the vehicle in
which anything is exposed for sale in any street
or public place. .Sub-sec. 4 of the same section
only authorizes the imposition of reasonable
tolls on vessels and otlier uraft, for the purpose
of cleaning ami repairing harbours, ami paying
a harbour master, and does not sanction the levy-
ing such dues for the revenue purposes of the
municipality to which the harbour belongs. Jn
!•!■ ('iiiiij)hill mill Till' Corjiiiriiliijii of tin- City of
KhiiiMon, 14 C. P. 285.
The corporation of a town has, under 3(i Vict,
c. 48, .s. 378, sub-ss. 1, 3, 4, (>., no power to im-
pose harbour dues on the shippers or consignees
of goods shipped or landeil at the harbour, but
only on vessels. Clauses of a by-law authorizing
such charges, and the seizure and sale f)f goods
therefor, the recovery thereof by action, and the
punishment of persons evailing them, were there-
fore (plashed. I'l' Mi'Lcixl i-t iil. and flu' Cur-
/inralion of the Tim-ii if Kincanlini', 38 Q. B. (517.
6. liegardlnij Marlcetx, Butchers, and HackMcrit.
The corporation of the town of London has
power, under their special act, 3 Vict. c. 31, to
make a by-law prohibiting the sale of butchers'
meat within certain hours, except at the public
market. Peter/) v. The PrexiileiU and Board of
Police of London, 2 Q. B. 543.
A by-law enacting "that no butcher or other
perNon shall cut up or expose for sale any fresli
meat in any part of the city, exceiit in the shopH
or stalls in the piilili<: markets, or at hiicIi placeH
as the standing conniiittee on itulilic marketH
nniy appoint" : Held, good, uncfer <'. .S. T. ( '.
e. 54, as being clearly within the powers given
to the corporation. h'rlli/ mul Tlir ('orjiuriilioii,
ifthi Citi/ of Toronto, 23 t^. H. 425.
Defendants leased to plaintitf the market fucM
of a wcioil market cstablisheil in one of the streetH
of the city, covenanting against their own inter-
ference, or that of any one by their license.
Twcuity years previously they had [i.isscd a by-
law, giving the right to deposit materials for
building puriposes on the highways of the city,
and they sulpsc(piently demised certain premises
adjoining the market to M., who (distriictcd a
iiortion of the siime with building materials.
The pliiintitl' thereupon sued defemlants on their
implied covenant for undisturlied collection of
saiil fees, and charging a wrongful license to .si.
to obstruct said market ;■ Held, that such action
was not maiutainable : that the bylaw was one
which the defendants had authority with a view
to public improvement and convenience to pai-s,
ftn<l that the plaintifV must be taken to have been
cognizant of it when he became their tenant :
that M. might, without the license of the defen-
dants, have occuj)ied a reasonable portion of the
highway, the bylaw apparently merely restrict-
ing without expressly conferringthe right of occu-
pation : that the market being fixed on a jtubliu
highw.'iy, which is prinii\ facie for purposes of
public travel, the exercise of the rights incident
to such market must be sulxirdinate to the pri-
m;ay and principal purposes of the highway : tiiat
there was no such implied covenant for (juiet en-
joyment as the plaintiff" asserted, for there could
not be in the highway any such absolute and
exclusive enjoyment as he claimed was secured
to him. Ill i/iiolil.H V. The Curpuration of the ('Ufi
if Toronto, 'l5 C. 1'. 27 (i.
A by-law prohibiting any person bringing
produce, articles, commodities or things to a city
market, from selling or offering the same for sale
within the city limits, cm their way to market,
or without having paid market t(dl, and before
offering such thing.s for sale in the market : —
Held, illegal, and (plashed, as beyond the power
of the corporation, under C. S. U. C. c. 54.
Kini/horn ami the CoriMration oftheditij of Kimj-
stoii, 20 Q. B. 130.
The corporation of a town by by-law enacted
that no per.'! ij should expose for sale any meat,
(ish, poultry, tn';',s, butter, cheese, grain, hay,
straw, i^ordw Kill, shuigles, lumber. Hour, wool,
meal, vegetabl' s, or fruit (except wiM fruit),
hides or wiw; >■, within the town, at any place but
the pubh'j ':;arket, without having first paid the
market fee there(}n, aa therein provide(l, except
all hides and skins from animals slaughtered by
the licensed butchers of the corporation holding
stalls in the market : — Held, bad, as beyond the
power of the corporation. Also, that meat, fish,
poultry, i'i/ij.% cheexe, i/rain, hay, straw, cord-
wood, nhini/len, lumber, flour, wool, meal, viije-
tableji, or fruit, except wild fniit, should not he
exposed for sale within the municipality, except
in the market, before twelve o'clock, noon :—
Held, bad as to the articles printed in italics,
power being given as to the others only, by C.
S. U. C. c. 54, 8. 294, aub-seo. 10. Also, that
2184
248.-5
MUNICIPAL C'OlironATIONS.
2JHG
»o liutchcr or othur
for Hftle ftiiy fr«Bli
V\VV\)t ill tlu' Hlll>ltH
H, or at n\u\\ lilaocH
oil i.iiMic iiiarkt^tH
un.U <'. S. U. ('.
, tlie iiowom Kivi'ii
1,(1 Till' ('«i-iH'Vitll»i>-
\\. 4-.'r>.
itiiV tlio iiiiirkft fi'i'H
I illOllLMlf tllL' MtrCUtH
iimt tliiir own iuti'r-
u! liy tlifir licfiiHu.
loy lii»l i>;vH«i«l 11 l-y-
leiioHit iiiatoriiiU lor
iuhways <if tlie ^'ity.
is,.,l iL'rtain i.n'iiUHeb
I., will! olistniotud a
imil.liiiK iiiiiterialH.
1 .U.ftMiilaiits on tlioir
isturl)e.l lolU'ctioii of
roiii-ful liceiiso to M.
Hel(l, tliatHiHUattlou
t the l>y-liiw wan one
antliDrity witli a view
I convcnii'm^tJ to l>auH,
botakfntohavobeou
bccaiin; tln^ir tenant :
e licensi! of tliu aetim-
wnable portion of tlio
irently merely restrict-
liriingtlie right of oeeii-
l,cing lixed on a viil)lic
I facie for pnri.owcs ot
3 of the riglits ilieulelit
8ul)orilinate to the im-
,cs of the highway :tliat
I covenant for iiniet en-
,8serte.l, for there coul.l
any such absolute luwl
M claiined waa seciireil
Corporation of tlm Ctt'l
any person bringing
Uties or things to a city
ilcring the same for sale
n their way to market,
market toll, aiul before
sale in the market ;—
,1 as beyond the power
ler C. S. U. ^-/-r-
itionofthi'VitiioJ km-
Bowu hy by-law enacted
xpose for sale any meat,
ter, cheese, grain, hay,
,e8, lumber, tlour, woo ,
lit (except wiltl frmt),
letown, at any place but
imt having first paid the
herein provided, except
[ ftnimals slanghtereil by
the corporation hoMiug
eld, bad, as beyond the
Also, that meat, hsli,
'■ahu hay, straw, cord-
flonr, wool, meal, viV-
J[A fniit, should not he
khe municipality, except
twelve o'clock, noon:-
•ticles printed m itahcs,
fo the others only, by t.
Isub-sec. 10. Also, that
before 10 a.m. <biriiig May, .liiiie, .I.ily, and
AilgUMt, aiiil l)t'fort' II a.m. iluring the other
iiioiitliN, no iiiu kHter, butilier, dealer, trader,
runner, agent, or retailer, or any oilier perMoii ^
iiurcliaHing for export or to hcII again, Nhoiild buy,
liargain for, eiig.ige or otlcr to liny any article of
liounehold eoMxuinption liroiiglit to tlie market,
exeeiiting pork, grain, lloiir, meal, or wool :
llelil, had, except aH to liiickHterH ami runnerH,
they only hi:'\u)f iiiclmleil in «ub-He<\ I'J. AImo,
that all pei'NohM exereiMiiig the tradtnif a bllteher
within the town tdionld he liceiiHeil eaeli year,
an provided, the fee for each lieiillKc tti he fm.
Meld, clearly bad, under hcch. '_M7, '-".•4, Hub-Mce.
•U. Ill ri' Fiiiinll iiiiil llir ('iirjiiirnliiHi of llic
Tom, ,f (hii'liili, 'J4 (,». lb 'I'M.
The corporation of a town by bylaw enneted
that no butcher, huekHter, or runner, should buy
or contract for any kiml of freuli meat, pioviMion.s,
iVc., Huch as were usually sold in the market, on
the roads, streets, or any phue within the town,
or within one mile di.itant therefrom, between
(.•ertaiii hours in the day : Held, clearly uuaii-
thorizeil, for their power (under •-!!» it .')(» Viet. c.
r>7, ». -!Hi, 8iib-8. \'l. as amended by ;il Vict. v.
iig II
town or within a mile of its limits. ^IcLdDi
■ iiitl III, <'iirf>i>rati<iiiiifl/if 'I'mi'itof St. I'lillmriiiin,
•J7 «^. H. (iO.'i.
A by-law purporting to be passed under -'!) it
;!0 Viet. e. .')1, s. 'J!MJ, sub-.ss. II and I'-', and .'tl
Vict. c. HO, s. Wi, (),, prohibiting any huckster,
butcher, or runner, from buying or contracting
for any kind of frc8li meat or provisions on the
Iliads, streets, or any place within the town on
.iiiy day before the hour of it o'clock, a. m., be-
tween Ist April and November, or liefore 10, a.
m., during the remainder of the year, was held
liad, as not being eonlined to puicliases, itc,
in the way of their trade. Wilmiii miil Hie Cor-
/inrillioll of the 'J'oll'll if SI. Cillhiirilli'*, -1 (J. 1'.
4()2.
Held, that ('. S. U. f. c. .")4, does not authorize
the impoHition <if a tax per conl upon wood
brought into town and not placed in the public
wood market for sale. Fiiri/ii/iar ,1 at. v. Tin-
I 'orjioration ifllic CiUj of Torotilo, 10 C. 1*. 37'J.
A by-law of a town for the regulation of the
market enacted ; 1. That only butchers and
[lersons occupying shops or stalls in the market,
ur in two specihed wards of the town, for the
.sale ot fresh meat, should sell, or expose for
.■sale, in any less quantity than by the ijuarter ;
that such butchers and persons might so sell at
these places, but not otherwise ; and that no
person should sell any fresh meat in the town
except in the market stalls or such place as the
oour.cil should appoint, not less than 400 yards
troin the ni.arket, and within certain specified
limits in the two said wards : — Held, valid.
•J. That no person should buy, sell, or oflfer for
sale, any game, fish, poultry, eggs, butter, cheese,
grain, vegetables, or fruits, exposed for sale or
marketeer in the town, until the seller had paid
the market fees, or obtained a ticket from the col-
lector of market tolls, aa provided in a by-law
referred to, and before a specified hour of the
(lay ; that no person should forestall, regrate,
i)r monopolize any of the articles mentioned,
within the town ; and that before noon no butch-
ers' meat, fish, hay, or straw, should be bought
i>r sold in the town except at the market and in
theHhiip!4or MtalU in the two said wards : Meld,
valid, under the Municipal .Act of ISiili, hcc. 'JlMi,
Miili-Ncc. il, and Mub-sec. 10, an aiuelidid by \V\
N'iet. e. 'Jl!, s. (i, 0.,and suli-Hee. II ; \\. Tliat be-
fore 10 a. m., no huckster or ruiiiier within tlio
municipality, or within oiu^ mile oi its limits,
slioiilil purchase any meats, lisli, or fruit lirought
to the public market : Meld, liad, as imt con-
liiU'il to those lif',„ii within tlic municipality or a
mile therefrom ; ami (Juiere, whether it mIiouIiI
not exduile persons buying for their own use, not
to resell. 4. That every peiMim miHIiu,' me.it or
articles of provisio i by retail, whether liy wi^ight,
t^ount, or measure, should proviili' lniii>ielf « ith
scales. Weights, and measures, Imt no spring baU
ance, s|iring scale, spring stcilynrds, or Mjiring
veigliiiig machine, shoulil be used for any mar-
ket imrpose : -Meld, valid, under sub-sec. 10,
above mentioned, and ( '. .S. U. ('. e. .'iS. Meld,
also, that market regulations niaile by the coun-
cil might be (plashed as orders or resolutions,
tinder see. M(8. Hy these reL;iilatioiis, it was
liiiivided that any person wishing to sell fresh
meat in i|uantities less than a ipiartcr in a shop
or stall ill either of the two warils above men-
tioned, should apply to the iriarUct cniuuiittee,
stating the annual sum above >!40 which he was
willing to pay for a eertilicate autliori/ing him
to sell for a year. Meld, bad, both by the j^'ciieral
law, and as opposeil to see. IJ'JO of the act of lSti(!.
It was also providecl that persuns obtaining cer-
titicates should give a bond with sureticn to obey
the by-laws relative to the sale of fresh meat at
stalls and shops where it was sold. Meld, good,
for that it applied of course only to valid by-
laws. Smil ami Ihi' ('orjioritlioiiif tin Toii'ii of
B,tl<vUl,', ;10 (I B. 81.
The name of the seller or his .igent must ap-
pear in a contract of purchase by a municipal
corporation. Where the miiiiieipal corporation
contracted for the purchase of some land for a
market site, and afterwards a by-law was pas.sed
with the sanction of the ratepayers, which recited
the purchase, but ilid not name the seller, and
there was no other evidence under the corporate
seal, and possession had not been taken, it was —
Held, that the contract could not bo enforced
by the vendor against the corporation. Ilourk
V. Ton'ii (f 117/ Wi/, 14 (.'by. 071.
7. Inipotindwij and KUllni/ AniniaU.
Under the 4 Will. IV., c. 2(5, incorporating
the town of Port Hope, the corporation had
power to enforce regulations preventing cattle,
swine and other animals from running at large
by impounding and selling them, as well to
li<piidate damage occasioned by their so doing,
.as a fine imposed. Smith v. lihrdaii, 5 O. .S.
(i47.
The corporation of the city of Toronto had
power under 4 Will. IV., c. 23, s. 21, to make
by-laws by which dogs found running at largo
within the limits and liberties of the city, after
proclamation of such by-laws, might be shot.
Mi-KtnziK V. Camphell, 1 Q B. 241.
Semble, that a by-law enacting *' -t certain
animals shall not run at large does not impliedly
allow other animuls not named to ilo so, contrary
to the common law. Jack v. 2'/i« (Jntariup
Simcoe and Huron li. W. Co., 14 Q. B. 328.
1
2487
MUNICIPAL CORPORATIONS.
2488
8. niUtanl TableK.
A hy-law fixing the sum to be paid for a license
for billiard table? in a town at §300, and enact-
ing that it should be unlawful to have any
internal means of communication between a
room in which a billiard or bagatelle table was
kept, and any plac3 in which spirituous liquors
might be sold : — Held, valid ; that the sum
charged was not excessive ; that such a by-law
was properly ?i;briitted to thi electors under 37
Vict. c. 32, ». 'J.'^, U., which was not confined to
tavern licenses ; and that the enactment as to
means of communication was within the power
to regulate and govern, and was not unreason-
able. Jfr Xcillii et al. and the Corporatkni of the
Town of Owiv Souml, 37 Q. B. 289.
A provision that no billiard table or bowling
alley should be licensed or kept in any tavern
inn, or house of entertainment : — Held, author-
ized by the power given to the corporations to
regidate billiard tables and bowling alleys : 3(5
Vict. c. 48, s. 379, sub-ss. 3, 35, 36, O. In re
ThovKi.i Arkell and the Curporalion of the. Toion
of St. ThoimiK, 38 Q. B. 594.
See also Billiard Tables.
9. Xiiisnnces.
Tlio IG Vict. c. 35, does not authorize the
passing a by-law to prevent a nuisance not in
itself unlawful, e.g. : to prevent persons called
runners or guides from exercising their calling
in a town. In re Ddvin and the Munkipalltij of
Clifton, 8 C. P. 2C«.
A municipality, under 29 & 30 Vict. c. 51, s.
29(5, sub-sees. 20, 21, may pass by-laws relating
to nuisances not of a public character. Bj'Ii.w
No. 502 of the city of Toronto relative to the
public health of the city, sees. 10, 12, 27, 28, 29,
30:— Held, valid. Ji'ei/hia v. Osier, 32 Q. B. 324.
A by-law that "no person shall keep a slaugh-
ter house within the city without the special
resolution of the council" :— Held, not within
the power given to the corporation by the Muni-
cipal Act of 18()'(5, 8. 290, sub-sec. 23, which was
to prevent or regulate the erection or continuance
of slaughter houses, Sec, which may prove to be
a nuisance ; lx;cause it permitted favouritism by
the council, and might be exercised in restraint of
trade or used to grant a monopolj' ; an<l all per-
sons therefore were not placed, or might not be
placed, or were liable to be not placed, on the
same footing who followed or desired to follow
the said traile. In re Xaxh and McCracken, 33
Q. B. 181.
10. Finea and Penalties.
Where a corporation is empowered by statute
to enact by-laws and to enforce a penalty for
tUoir infraction, not exceeding a certain amount,
a by-law is bad which annexes a penalty to an
oflFence, but does not declare its amount. Peters
V. The President and Board of Police of London,
2 Q. B. 543.
The 6th section of the by-law required all
grounds, &c., not already drained, abutting on
any street with a common sewer, to be drained
into the same within fourteen days from the
advertising of the by-law for one week; the
seventh section imposed a penalty on any one of
not less than $1 nor more than $10 for each
month he shoivhl omit to do so ; and the eighth
provided for enforcing payment by distress or
imprisonment not exceeding thirty-one days : —
Held, that these sections must bo quashed, for
sub-sec. 18, shcM'ed how the parties should be
compelled to drain, i. e., by the council doing
the work and .assessing them for the costs ; .ana
the infiiction of a penalty for each month, and
imprisonment for thirty-one days, were wholly
unauthorized. A subsecjuent by-law added to
the eighth section above mentioned a proviso,
that any person thereby required to construct
a drain, who should not do so, but shoidd be
willing to p.ay the same rent as if he did use the
sewer, should be exempt from the penalties : —
Held, that as the penalties were held illegal,
this clause, founded on the assumed liability to
pay them, must .also be (juashed. In re Mc-
Cntchon and the Corporation of the City of To-
ronto, 22 Q. B. G13.
A by-law for the regulation of markets, &c. ,
provided that any p'irson breaking any of the
provisions should, upon conviction before the
mayor or any other magistrate of the town, for-
feit and pay a line not exceeding ^50, nor less
than $1 and costs, and in default there' f, and of
distress out of which to levy, should be coimnit-
ted, with or without hard labour, for not more
than 21 days. Qu-itc, taking together sec. 243,
sub-ss. «. 7. 8, and sees. 20C, 207, 360, 3()G,
of C. S. U. C. c. 54, whether the statute autho-
rizes a discietiou as to the amount of fine and
tenn of imprisonment to be thus given to the
magistrate, or whether it must not be fixed by
the l)y-law. //( re Feniull and the Corporation of
the Town ofGuelph, 24 Q. B. 238.
A similar liy -law provided that persons offend-
ing against the by-law should, on conviction by a
magistrate, be fined not less than $1 nor more
than §20, and in default of payment be imprisoned
for not less than two nor more than twenty d.ays,
which fines should be applied to the uses of tht
municipality : — Held, that leaving the fine in tliu
magistrate's discretion was clearly authorized by
sec. 209 of the Act of 1866 ; but that it was in-
valid for not awarding a moiety of the fine t(.
the informer, under sec. 211. SneU, and th<
Corporation of the Town of Belleville, .30 Q. B. 81.
A provision that any person encumbering, in-
juring, or fouling .any public wharf, should be
liable to a pen.alty named, and in default of jiay-
ment or sufficient distress to imprisonment "for
not less than ten nor more than thirty <lays :"—
Held, bad, twenty-one days being the limit
authorized by sec. .372, sub-sec. 13, of the Act of
1873. In re McLeod et al. and the Corporation
of the Town of Kincardine, 38 Q. B. 617.
11. Eepealimj By-laws.
A iistrict council passed a by-law imposing a
tax on certain lands, but limiting no sum to be
raised. By two subsequent by-laws *\v,z was
repealed and again revived : — Held, that the last
by-law must be quashed, notwithstanding that
the applicants had paid part of the tax impoaed
by the first. The, Cnnad^a Company v. Tin-
MtiniciiHil Council of the County of Ojford, 9 (}.
B. 567.
2488
-enalty on iiny one of
e than $10 for each
) 80 ; and the eighth
irment by distress or
g thirty-one days :—
must be (luaahed, for
he parties should be
by the council doing
ein for the costs ; and
for each month, anil
,ne days, were wholly
lent by-law added to
mentioned a proviso,
required to construct
do so, but should be
nt as if he did use the
from the penalties :—
iies were held illegal,
le assumed li.ibihty to
, <iuashed. In re Mc-
ttion ofthtCityof'lo.
lation of markets, &c.,
:ni breaking any of the
L conviction before the
istrate of the town, for-
exceeding ?50, nor less
Li default there, f, and of
lew, should be eoimnit-
ird labour, for not more
akina together sec. ^4.i,
;cs l06,^207. 360, 3(iG,
lether the statute autho-
the amount of hue and
t„ be thus given to tic
it must not be fixed by
,.// and the CurpomUoH oj
Q. B. 238.
,-idcd that persons offend-
ahould, on conviction by a
nt less than $1 nor more
of payment be imprisoned
.rniore than twenty days,
Vpplied to the uses of thf
;hit leaving the hne in th.
was clearly authorized bj
18l!(i ; but that it was ui-
:, a moiety of the hue t<.
I^(.c 211. Snell. (tud th<
'p/i./H-ii/.,30Q.B.81.
person encumberiuR, in-
public wharf, should bf
lid, and in default of pay
ress to imprisonment t,.v
more than thirty days ; -
L days being the Imnt
sub-sec. 13, o1 the Ac of
ef id. ami the. Corporatwu
■dine, 38 Q. B. 017.
nlimj By-lam.
[but limiting no sum t.> «
Iseouent by-laws <■:... ^^
&:-Held, that the W
Ihed, notwithstanding that
lid i^t of the tex imposed
|('«ia(to dmmnv v. J
■ the County of Oxford, J (I
3489
MUNICIPAL CORPORATIONS.
2490
The corporation of the township of North
Cayuga, having jxiwer Ijy 33 Vict. c. 33, s. 18,
O., " An Act to incorporate the Canada Air Line
IJailway Co.," to exempt the property of the
company from taxation, passed a by-law provid-
ing that all the real property of the company in
the township should be rated at ^12 per acre
(the then average rate) for fifty years. This by-
law was subsequently repealed, but it did not
appear that upon the faith of it tlie applicants
had in fact altered their position; or done any-
tliing which they otherwise would not have done,
and the railway was being constiiicted through
tlie township before it was passed :— Held, on
an application to quash the repealing by-law,
that the court under the circumstances could not
interfere, hi re Great WeMerii li. W, Co. and
the Corporation of the ToionsMp of Xorth Cayuga,
23 C. V. 28.
Held, that tlie nninicipal council of a village,
incorporated in, ainl separated from, a tow-nsliip,
in wliich before and at the time of said incor-
poration a by-law existed prohibiting tlie sale of
intoxicating li(pior8 in shops and places other
than houses of public entertainment within said
township, coukl not, by a by-lav/ not submitted
for the approval of the electors of the village
coriioration, repeal the prohibiting by-law so far
as it affected the village municipality, but that
the by-law must be passed upon by the electors
under 32 Vict. c. 32, s. 10, 0. Jn re Cunnhnj-
ham V. The Corporation of the Village of Al-
monte, 21 C. P. 459.
Sec Smith ami the, Munieipal Corporation of
the ToicnMp of Oakland, 24 C. P. 295, p. 24()2.
12. Other Powerif and Duties.
As to the power of district councils, under 4
& 5 Vict. c. 10, with 'egard to the preparation
of aoaessment rolls, and statute labour lists.
See Bal)y v. Bahy, 5 Q. B. 510.
The district council had no power to authorize
their clerk or agent to make any contract for the
purchase of boi>k3 for their several common
schools tlu'oughout the district, such a contract
not being necessary for the exercise of their cor-
porate functions. Bam.tay et al. v. 'IVie ]ye,itern
Didricl Council, 4 Q. B. 374.
A municipal council, under 12 Vict. c. 8i,s. 31,
could not appropriate the revenue arising from
a tax imposed on the owners of dogs in only a
part of the township, to the iinprovements of
the public streets and to other purposes v,;thi)'
tlie limits of such part. In re liu-hm<md v. '■ '
Municipality of the Township of the FinHt >f
Leeds and Lansdowne, 8 Q. B. 5G7.
A township council has no authority to declare
the qualification of voters. A by-law enacfad
by them for such a purpose must be quashed
with costs. In ?•« Bell v. The Municipality of
the Township of Manvers, 3 C. P. 349.
The 12 Vict. c. 81, sees. 6, 7, as to by-laws
dividing townships and wards, applied only to
by-laws of district or county councij?. A town-
shi" by-law dividing the township into wards,
and appointing places for the elections, was —
Held, tnerefore, not i. ecessary to be published.
Reifma ex rel. Woodwwd v. Ostroni et al., 2
-C. L. Chamb. 47.— Bur.>8.
Upon an application to quash a by-law divid-
ing a township into rural wards, wherc^ neither
the townsliip sought to be divided, nor tlie union
f)f townships of which it formed one, were before
the by-law divided into wards, and the by-law
was not passed within the first nine months of
the year in which the junior townsliips had 100
resident freeholders and householders on its col-
lector's roll : — Held, that the by-law was invaHd.
Loueks V. The Municipality of liussell, 7 C. P.
388.
Defendant gave his bond to a municipality to
put up a mill on his own land, and being sued
upon it pleaded performance, wlncii at the trial
he failed to prove, and a verdicu >vas rendered
.against him for .£12 10s. The court, under the
circumstances, refused to interfere. Semble,
however, that if the objection luid been taken in
time, no action could be maintained by tlie
municipality on such a bond, without sliewing
on the record something to warrant them in
taking it, the contract being apparently one
wlioUy without the scope of their charter. The
Municipality of the Township of Kiuloss v. Slauf-
fer, 15 Q. B. 414.
Held, that the selection of a county town for
Peel, authorized by 19 Vict. c. GG, was sufticiently
made by resolution, a by-law not l)eiiig indispen-
sable ; and that a by-iaw passed afterwards
appointing another place was illegal. Ilt.-ion and
the Provisional Corporation of tlie County of Peel,
19 Q. B. 174
Held, that a by-law of the county of , Perth,
passeil before 22 Vict. c. 7, authc-i/.ing county
councils to raise moneys to assist persons to sow
tlieir land, &c. , was not ratified tiiereliy. Said
statute is not retroactive, except in the case of
the by-law of the county of Bruce, thereby
specially provided for. Campbell v. The Corpo-
ration of Elma, 13 C. P. 290.
Held, thiit municipal corporations are not
restricted, any more than individuals, as to the
rate of interest to be received upon money loaned
by them, but that they may take any rate of
interest .agreed upon. The Corporation of North
Gwitlimbury v. Moore et al., 15 C. P. 445.
A promissory note, made pay.ablc to the trea-
surer of and endorsed by him to a municip.al
coriwration, io secure a bal.ance due to the corpo-
ration on a past transaction, is not void under the
niu'iu i- ' vzti. The Corporation of BetlnHlle v,
i'"'i/<. ./,' f, N. S. 73.— C. C— Sherwood.
Sec. 44 of 31 Vict. c. 30, O., empowers muni-
^ij/al corporations to exempt from taxation for
lOt more than five years manufacturers of woolViu,
:otx ins, gl.ass, paper, and such like commodities.
Uuier this a by-law was passed, enac >■ i > t
(jv-iiiy person or firm thereafter comniencnig any
iiev.' m.anufacture of the nature contemplated by
the section, who should employ therein more
than 81000, andp.ay to operatives morethm ^"^O
weekly, should be exempt for five years- as to
such property. It was provided that the pro-
perty snoi^'d iievt-theless be {is'30<..':«'d. but , ntered
m a separate page of the ass^asmeni roll, and
that the clerk was to ptst up i unt of si'-h pro-
perty, and tb' Court Oi iieviiion f'louid hear
and determino i-.omiiMiy" ag.ainst »'th exemp-
tions, and ii tiiey '•/■:i-e siistain^d should place
the property on ♦;' 5 roll 11 t'.e ordin.ary column.
The persona c'aimiuT; e?!'aiptif;i were also re-
2491
MUNICIPAL CORPORATIONS.
2492
-Si! I
■I
quired to file j'early a statement, verifieil under
oath, shewing the capital employed and the sum
jiaid for wages : — Held, that the by-law was
bad, for exempting new manufactures only in
preference to those of the same kind already
established, an<l for exen'ptinij only those per-
sons doing a specified amount ol business. Sem-
ble, however, that all manufacturers of the same
trade might be exempted, so as to give them
an advantage over other trades. Hehl, also,
that the by-law would not have been bad for
exempting manufactures instead of manufac-
turers, nor for recjuiring the oath, nor on account
of the provisions as to the assessment of the
property and the reference to the court of
revision. Quiere, whether it would have been
objectionable to empower the mayor or the clerk
to decide upon applications for exemption. Pirir
and the Curjioration of tlw Town of Dundas, 29 Q.
B. 401.
A city by-law passed on the 2Gth of October,
18()0, providing that no persons other than the
chimney inspectors appointed by the municipal
council (of whom there were to be three), should
swi '-'p or cause to be swept, for hire or gain, any
chinii.cy or tlue in the city, was Held to be
beyond the power of the corporation, under the
autlioi'ity given to them to enforce the proper
clciuiiug of cliimneys ; and a conviction under
it was quashed. It is not the practice to give
costs on (juashiiig a conviction. l{i'(j\na v. John-
ston, 3S (i. B. 54!). — Harrison, sitting alone.
Held, that a municipal corporation has no
power to declare certain posts planted by a sur-
veyo)' to lie the true boundaries of an original
road allowance wliich they direct to be opened.
They may give a description of the boundaries,
but ought not to declare such boundaries to l)e
the true Ijoundaries, that l)eing then a matter in
dispute. Ej- Vfl. MrMidlcn v. Corjior<itwn of
Carai/oc, 22 C. P. 350.
A by-law granting 81000 to an individual in
consideration of his having at the instance of the
corporatitm advanced the amount in aid of a
railway : — Held, ))ad, for it was not a grant to a
railway, and it had not been iissented to by the
electors. In r<' lintc and the L'orjioratiun of this
Citi/ (fOttinni, 23 C. P. 32.
Quii're, wliether without =uch assent the cor-
po''atioii could grant a Ixmus to a railway out of
surplus tunds in hand. Jb.
Held, l)y (iwynue, J., and iirtirmed by the full
court, that township municipalities have no
jx)wer to expend any portion of their funds in
payment of rewards for the apprehension of fel-
ons. AVhere, therefon?, a township corporation
ofi'cred and promised to pay a reward of §500
for the arrest and conviction of the persons guilty
of a murder, it was held that such promise was
not l)iudiiig ui)on them. Cornwdll \. T/ic Cor-
porntiim of thv TownKhip of Went yinaouri, 25 C.
P. <J.
Held, that the 32 Vict. c. 31, O., which re-
<iuires municipalities to provide compensation to
tlie owners of sheep killed Ijy dogs, for the dam-
age they have thereby sustained, is not confined
to county municipalities and to municipalities
within their jurisdiction, but applies also to
towns which have withdrawn from the jurisdic-
tion of the county. Willitims v. T/w Cor/tonitiun
of tin- Town of Port lloin, 27 C. P. 548.— A.
Wilson, .sitting alone.
Quivre, whether the license to a hawker and
pedlar, granted under the Municipal Acts, is con-
fined to the licensee only, or whether it extends
to a servant employed by him. Semble, that it
is personal only ; but the point being doubtful,
a certiorari was granted to remove the conviction
of tlie servant, in order that it might be moved
against. In re Ford, v. JleArtliur, Maijor of tlu-
7 own of BowmanrWc, 37 Q. B. 542. — A. Wilson,
sitting alone.
By the Municipal Act of 1866, the corporations
of cities may pass by-laws to prevent the erection
of wooden buildings within specified p.arts of the
city. A by-law prohibiting the erection of any
building within certain limits other than of stone,
brick, inni, or other material of an inconiljusti-
ble nature : --Held, void, as beyond the power,
in prohibiting buildings of combustible materialt:
other than wood. Attorneij-UcncriU v. Vam^i-
Ix'l/, 19 Chy. 299.
The Cobinirg harbour company was authorized
by statute to construct a harbour, and to erect
all moles, piers, wharves, buildings, and erec-
tions useful and proper for the protection ot
the harbour, and for the accommodation and
C(mveiiience of vessels entering the harbour; and
this right was by subsequent legislation vested
in the town council of Cobourg : — Held, that
this did not authori/e the company or the town
council in buililing a storehouse and fence on
land f(jrmcd by crib-work constructed by tiif
company and by gradual accretions from the lako
in front of tlie plaintiff 's hind, which wen*' "ti
the water's edge," in sucli a m"iiner as ;o j rc-
vent the plaintitt' having free .tjccss to the wa ieis
of the lake. Sttindly v. I'vrr'i, 23 Chy. 507.
On the 2(!th Septemljcr, i844, one LeB. cnii-
veyed certain land to t)".' municipal council ni
the district of Ualhous'e, on condition of their
erecting within a year a school house thereon.
The deed did not state tiia it was to be a model
scho(d house, but that was lie only school tliey
could then establish, and tlie council had on the
Kith May previous, acting under 7 Vict. c. 29.
which authorized the est.iblishme'it of model
schools, passed a resolution and by law recitiii;.'
the statute, and directing tlK nstr.'iiishment of ;\
model school, which, within the time limittd.
was erected on this land. The land foniied pan
of what Was afterwards incorporated as the town
of Bytowii, and sul)se(juently the city of Ottaw-
while the district of Dalhousie Ijccame the county
of Carleton. The evidence shewed that up ti>
1851 the school wiis used as a model school, ainl
tliat the plaintitt's had always asserted their right
thereto, and had ejected one S., who got intn
possession as a private and afterwards as a com-
mon sciiool teacher J and up to 1868, the defen-
dantd, the public school board at (Jttawa, liad
admitted the plaintiffs' right to it. The 37 ^ ict.
c. 28. O., empowered the public school board nt
any city to take possession of all public sclinol
property, and to hoM, as a corporation, all siuli
property acipiireil or given at any timefor puMif
school purposes in tiie city by any title whatso-
ever. Defendants took possession, cliiiniing tin-
land as lieiiig vested in tliein under this act, ami
the plaiiititfs then brought ejectment :— Held,
that plaintiffs were entitled to recover, for that
under UcB. 's conveyance the property vested in
them, and the subse<iuent School Act had nut
had the etl'ect of divesting it : — Held, also, that
there was no objection to the county owning luml
2492
. to a hawker ami
iiicipal Acts, is con-
whether it extewls
n. SemVjle, that it
iiit heing (lowl)tt'ul,
move the conviction
t it might be moveil
rthur, Mai/or of til'
Q 542, A. ^^ ilson,
366, the corporations
iireveiit the erection
specifieO parts oi the
r the erection of any
8 other than of strme.
il of an incomlnisti
i heyonil the power,
.ouihiistible materialr^
.ey-aewnd v. ('nmi'-
iipany was authorized
harbour, ami to erect
huihlings, and eroc-
•or the protection ot
:. accommoaation am
•ringtheharlKmr; an.
lent legislation vested
Jobourg -.-Held, that
company or the town
,rehouse ami fence on
■k constructed by tne
.ecretions from the lake
land, which wen*- "t'
h a nii-..iiicr as ;o ) le-
^ree a'jcess to the Wiueis
Perm, -23 Chy. 507.
er, \844, one LeB. ccm-
1,.. municipal uouneil .it
[ on condition of theiv
k school house thercn.
Lv it was to be a mo.lel
fas lie only school tlie\-
Il tl.c-'miieilhadonthi-
lii.r under 7 Vict, c. -J'.!.
Lt.vbhshment of n»o.iel
ftioi and by law recitni-
V' th<- ost-.blishment ot u
Irthin the time liinite.l.
I The land formed pan
Incorporated as the t..\Mi
Jutly the city of Uttaw:
lousie liecanie tlie county
luce shewed that up t.'
|l as a model school, an. I
■ways asserted tlieir nglit
Id one 8., who got nit..
Ind afterwards as a cm-
■l up to 18G8, the de en-
Hi board at Dttawa, lia.l
■right to it. 'ac3"^l^'';.
Ke public school board..
Kioii of all public sch.H.l
Kb a corporation, all sucu
R-enatauytimeforimblK-
■city by any title what^>-
■ iiossession, clainnug tla^
■theiu under this act an.l
■ught ejectment -.-He < .
■itled to recover, for tli.it
■ce the property ves.e.l iii
■ent ScU.l Act had ,u.
■ing it :-Held, also, l.u
■to the county owmng lau.l
2493
MUNICIPAL CORPORATIONS.
2494
80 ac(iuired, ami subseciuently included in the
city. Tlie ('(iriMintCtoii <if tfir Count ii of ('(ir/eton
V. 77i(' I'lihllc School Board of the Citij of Ottawa,
25 C. V. 137.
Sec LcirU r. The Corporation of tho City of
Toronto, 39 Q. B. 343, p. 2503.
See also XIII. 2, p. 2500.
Xn. Acrioxs BY MrN'Kii'AL Corporations.
1. Aijoind Mi'mJiir.^.
Tlio plaintiflfs, the municipal council of East
Nissoiiri for 1858, sued defendants, who were
councillors during 1856, alleging in sui)stance
that in that year a eonunission was issued under
12 Vict. c. 81, toeiKpiire into the rinancial affairs
of the township, and that defemlants wickedly
and maliciously cmispiredand contrived together
to obstruct and delay, and to increase the costs
of "^neli e Kpiiry to the plaintiffs, and for that
\ rposo refused to atteiul and give evidence and
produce documents as reiiuireil, and procured
the clerk to absent himself, and had the docu-
ments coiicealeil, whereby the en(pury was de-
layed, and the expenses thereof to the plaintiffs
was increased by £300 beyond what it would
otherwise have been : — Held, that the action
was maintainable, and the declaration sul'ieient.
Thr Mnnicijxi.Uti/ (ftlu- Toirnshlp (f Eii^t Xixnonri
V. Ilor-ii'iniin ft a/., 16 (J. \i. 556. See the plea.lings
r," objecti.Jiis stated more fully in ante p. 2205.
I ■ •',11 a.'tion for money had ami received by
'111! lunieipality of a township for 18.">7, against
the U^tendant, who had been reeve in 185(i, it
appoaie.l that at a meeting of the council in that
yeai defemlant being in the chair, it was re-
solved, ;. That the treasurer should pay defen-
dant the suMi of i;i2!), "for moneys advanced,
atteniling conniissi.m, sahiry as councillor for
1856, for defending chancery suit, &e."; 2. 'I'hat
the defeii.lant slmulil lie authorizeil to sign an
or.ler im the treasurer to pay certain witnessess
called by tlif council their expenses attending
the comniis.«ion, and paying other township olH-
cars, &c. , not alrea.ly pai.l by or.lers on the
treasury ; 3. That the reeve slnniM give an onlcr
on the treasurer for £10 10s., in favour of X., for
services as towiishij) clerk. It wa.s iiroved that
the treasurer pai.l "^V '"120 to defendant : that
the commission niri.i.ii ■ ■' -vas held uiuler 12
Vict. c. 81, s. 181, ir , \..n :,! into the financial
affairs of the tow loip • n 1 ;liat tlie suit refer-
red to had bee'! '.j;b by one O. v^cpecting tho
affairs of the f > vti^li ') I it the clerk swore that
no documents in.i.c>... *■') his possession shew-
for what the u.:.>re>
I lid ■ ) defeii.Iaiit had
been expended, and ao cvi.leii.'c was given to
shew what portion of tl.'. £12!) had been received
for his attcndanee in i he council. There had
been .lo by-law to autlierize any of these pay-
ments •■ -Held, that upon , his evidence it should
have b ten left to tl'.e jury to say how much, if
not all, of the £12!' was an illegal payment ; and
that the resolutn .■.-., Luougli not ipiasheil, woulil
be no defence. With regard to the different
items mentioned in the resolutions- -HeM, as to
the "moneys advanced." that nothing eouhl be
ix'eovered wl'J.'.it ahew'ng th;.t tiie payment
made by defen.iant w" .li, ■ „1. ^s to the charge
f.ir •'attendiu^. , .i.'issioi'." tiiat it was priniA.
facie il'egal, ai.'d lefi iidant should have shewn
his right io it. T'uit any payment to defemlant
for attendance at council was clearly illegal, anil
could be recovered in this form of action l)y the
council of the succeeding year. Senible, also,
that the treasurer might be imlicted for m iking
such payment. As to the niouey paid for de-
fending the suit, that it should have been shewn
that there was some reasonable gr.mii.l of de-
fence, and authority by by-law to defend. As
to the second resolution, that the moneys drawn
under it must be proved to have been paid to
defendant, and not to the witnesses and olliecrs.
As to the third resolution, that as there was lU)
evidence of illegality in the payment nothing
could be recovereil. .S'. ('., Hi Q. li. 576.
In an action against three meinbors of a niuni-
cip.al corporation, one being the reeve, for com-
bining to delay and obstriiet the pr.ieeeiliiigs of
commissioners appointe.l to eii.[uire into the
affairs of the t..\vnsliip, un.ler 12 Vict. c. 81, s.
181 : — Held, 1. That one defendant, who had
suffered judgment by <lefault, e.mhl not be
called as a witness on behalf of the .ithers. 2.
That the jury were properly t.il.l, that it was the
duty of defemlants, and more especially of the
reeve, to direct the clerk t.) [iro.luce before the
commissioners his books, and to facilitate the
en(|uiry. 3. There being evidence to g.i t.> the
jury to shew that the clerk lia.l aliseute.l himself
and kept back the books, &c., in eollusiou with
defemlants, ami that in coiiseiiueiiee the csts of
the commission, which .itherwise woulil not
have exceeded £75 or €URt, were increase. I to
£.328, that £250 damages was not excessive.
.b'. C, 18(,). B. 31.
The reeve of a townshii) receive. I certain
license fees, which, as he allege. 1, lie pai.l t.) the
treasurer, whose receipt he pro.lueel for part of
the sum in cash ami a note f.ir tlie balance. The
treasurer denied having reeeive.l the note or
balance, and at his instance the miiuieipality,
by res.>lution, allowed an action to be brought
for it in their name against the reeve. They
afterwards rescin.le.l this resolution, but the
action went on ; anil at the trial it aopeare.l that
tho whole sum had been charged by the treasurer
to himself in his accounts for the year, which,
as well as tho accounts for three suliscnuent
years, had been audited and passed, shewing a
general balance for that an.l the other years
due by tlie treasurer : — Flel.l, that the action
could not be inaintaine.l by the niunieipality ;
and that if it could, the treasurer would not
have been admissible as a witness. Thr .][itni<i-
jinHtii if till' Township (f Kimj v. /fiii/hen, 17
Q. K 253.
The declaration allege.l th,;t defendant, as
agent for the plaintiff's, un.lertn. ik to expend
certain moneys for them on certain roads and
bridges : that he falsely and frauilulently repre-
sented to them that he ha.l caused work to be
(hme, and in collusion with tho persons alleged
to have done such work, and by drawing false
orders in their favour containing such re[)resenta-
tions, caused a certain sum to be drawn out of
the plaintiffs' treasury ; whereas the work had
not been done, and the plaintiffs thus lost the
money, ("ommon counts were added. It ap-
peared that the corporation by ou'o resolutii-n
directed that !?300 should be granted to eacii
councillor, defendant being one, to be by them
expended on the roads ; and by another tliat
§100 should be placed to the credit of each
councillor, to be expended by them on the roads
2495
MUNICIPAL CORPORATIONS.
2496
aiul briilgep. ill ti'tii' n .<i.octivo divisions. This
was in acct^rdance v/i*:li an established practice,
by which thi uimnciUors superintended the lay-
ing out of HDneys in their respective divisions.
Defendant granted several orders on the treasurer
to different 'lersons as for "work done," whicli
were paid, and it appeared that such work,
though C()n',ractcd for, had not then been per-
formed. 1 here was no evidence, however, of
any fraud jr collusion on defendant's part, or of
any gain to himself, except the usual charge to
the corporation of the commission on such
moneys as expended. The jury having found
for the plaintiffs, on a direction that moral
fraud was necessary to sustain the action :
— Held, that though giving orders false in
fact might raise a primil facie case, yet the
proof that the work had been contracted for
rebutted the charge of fraud. A new trial was
therefore granted nithout costs. Held, also,
that there couM be no recovery on the coriinKjn
counts, for defendant ha<l received no money.
Quiere, whether this action would lie by the
corporation against one of its members, or whe-
ther the projier remedy was not in equity,
against defendant as a trustee. Quivre, also,
whether it coidd be said that the nu>ney was
obtained by means of the untrue orde for de-
fendant, having tlie control of the nion ly the
resolutions, might legally make pay."
advance, ami tlie orders would equally ha^ v ..
paid if they had shewn that the worli was •
in progress or contracte<l for. Corixiraltoii of iii>
ToirHi</iip of C/intliain v. Houston, 27 Q. B. 550.
2. Ot/icr Ctf^rs.
Under the Municipal Councils Act, 4 & 5 Vict.
c. 10, a municipal council can in their corporate
name enforce payment of debts due to the district
where neither the magistrates nor their treasurer
could have sueil formerly, l;ut they cannot vary
the rights of the parties, nor alter any contract.
Ottitwa DiMrkt Council \. Low H al., 60. S. 540.
One district council may sue another for a
cause of action connected with their public du-
ties ; e. g. , for the ))aLance of district revenue
which one district holds for another. Huron
Di.stri'-t CoKitii/ y. The London DiKtrict Council,
4 Q. B. 302.
Under 12 Vict. c. 81, sees. 175, 176, the
township councils, and not the county councils,
are entitled to receive moneys due to the old
district councils where the debt is due to the
locality, as for making roads in a townshii), &c.
Till' MunicijuxH'ouncil of the United Counties of
North umliirland. and Durham v. Bull et «/., 8 Q.
B. 375.
Declaration by a county against a city corpo-
ration, for compensation for the care and main-
tenance, by the plaintiffs, in the county gaol, of
prisoners, under sec. 403 and following sec-
tions of the Municipal Act of 18()(), alleging
an agreement made on the 6th of June, 1867,
by which, after deducting the amount paid
from the administration of justice fund, the
balance of the expenses were to be paid equally
by plaintiffs aiul defendants ; that the sums
payable for the food and clothing of the prisoners
committed to said gaol Ijy some competent autho-
rity in the city, during the years 1867 to 1870,
inclusive, amounted to ^5,420, and, though de-
fendants had paid part of it, and their half of
the other expenses, rs agreed on, yet they had
not paid the residue, although they had in each
of said years sutticient money belonging to the
city aimlicable to municipal purposes generally,
and still hold moneys not specially appropriated
to other purjjoses more than enough to meet
plaintiffs' demand, and although defendants lev-
ied in each of said years for the purposes of said
demand moneys out of which they might and
ought to have satisKed it. A common count was
added for food furnished by plaintiffs at de-
fendants' recpiest to the prisoners sent to said
gaol from defendants' municipality. Defendants
pleaded to each count, that the alleged agreement
was not under their seal ; and to the whole decla-
ration, that the claim under both counts was
the same, and that said cause of action, if any,
arose for a debt alleged to be incurred and fall-
ing due during the said years, which was not
within the ordinary expenditure of defendants
during said years, and for which no estimate was
made ))y defendants, nor any by-law passed for
the creation of such debt, nor for imposing a
special rate for payment of it. On demurrer —
Held, 1. that the first two pleas were bad, because
the agreement was one which defendants might
enter into without deed ; and the sixth plea, that
tilt contracts alleged were not under defendant's
■eal, was Held bail, because, the common counts
jannot be founded upon a deed, and the plea was
•herefore iuappro>^,'riate : 2. that the declaration
,\ .ts good ; that it was unnecessary to allege de-
fendants' contract to be by deed, and that it was
not requisite that the sum payable should be a
fixed annual amount : 3. that the last plea was
bad ; that the plaintiffs' inability to enforce pay-
ment was no reason why they should not recover
a judgment ; and that the claim for support and
maintenance of the prisoners was within defen-
dants' ordinary expenditure ; that no estimate,
by-law or rate might have been necessary, for
there might have lieen other means for satisfying
the demand ; the averment that defendants had
sutTicient money applicable to general purjioses,
and not specially appropriated, -as not denied ;
and the allegation that defendants levied in eacli
year for the demand moneys out of which they
should have paid it, was a sufficient averment
that the demand was, in each year, specially
provided for, so that the fund could not right-
fully be devoted to other pur^Mses. The first
count referred in two places to prisoners com-
mitted to the gaol by competent autliority,
"within" instead of "of" the city, but this not
being a ground of demurrer an amendment was
allowed, and judgment given for plaintiffs. Tlie
Corporation of the Count;/ of We.ntworth v. Tin
Corporation of the City of Hamilton, 34 Q. B. 5S5.
— A. Wilson, sitting alone.
Wliere a corporation leased property to a ten-
ant, taking a covenant to pay taxes, \anKough-
net, C, and Spragge, V. C., held, in the Court
of Appeal, dissenting from the judgment (jf tlie
court, that though they might sue on the cove-
nant to pay, they could not distrain. Scrmjii v.
The Corporation oftJie City of London, 26 Q. B. 2();j.
To a bill filed by the municipal council of an
incorjjorated town to prevent an injury to tlie
property of the municipality, the attorney-gen-
eral is not a necessary party. The Mitnicijudilii
of the Town of Ouelph v. The Canada Comjiiuiy,
4Chy. 632.
2496
2497
MUNICIPAL CORPORATIONS.
2498
;, and their half of
d on, yet they had
h they had in each
cy belonging to the
purposes generally,
jcially appropriated
in enough to meet
,ugh defendants ley-
the purposes of saul
ich they might una
^common count was
JY plaintiffs at de-
isoners sent to said
.ipality. 13etendant8
;he alleged agreement
lid to the whole decla-
Ller hoth counts was
,use of action, " /"ly,
be incurred and tall-
?ears, which was not
[aiture of defendants
n-hich no estunate was
any hy-law passed for
,t nor for imposing a
of it. On demurrer—
Dleas were bad, because
Wch defendants might
uid the sixth plea, that
, not under defendants
ise the common counts
deed, and the plea was
9 that the deelaratioii
nnecessary to allege de-
by deed, and that It was
unpayable should be a
that the last plea was
inability to enforce pay-
r they should not recove •
be claim for supLort and
.oners was witlundefen-
ture ; that no estima e
lave been necessary, for
ther means for satisfying
i^t that defendants had
ble to general purposes
Vated, -as not denied ;
ilefendants levied in each
Levs out of which they
as a sufficient averment
Phi each year, specialy
Le fund eould not rig. ■
her purposes. Ihe tiist
places ti prisoners emu-
I competent authoritv,
l^f'the'city, hut this not
arrer an amendment ^^as
"^[ven for plaintiffs. 7
,»t,i of Wcntworth v. i /^'
lone,
leased proper^ to a ten-
Ito pay taxes, VanK.mgU-
^^ held, in the Court
tomilleiudgmentofU.
' miKht sue on the con e
I niunicipal council of mi
prevent an mjury to t t
\V y-.^.. »!,« attorneyuc'i-
The municipality of B., being authorized by
statute to lenil £40,000 to a navigation company
To an action against a munioipal coqxiration
cm tlioir covenant to renew a lease, di.fendants
in the debentures of the municipality, payable in pleaded that they had no authority to miko the
twenty years, issued debeuturea tn that extent, ! lease, as defendant, who was an inhabitant of
iif which debentures to tlie amount of fUi.oOO i the town, well knew wliou lie took it ; and that
were deposited l)y the navigation company in the Ijefore tlie term i'\]iired a drjree was (ilit:une<l
bank. 'I'he luunicipality with the consent of , against them in ('h;ineery, of wiiieh (U-fcmlxnt
the navigation company, redeemed the deben- | had notice l)efore this aetiou, deehiriu;^ tliat the
tures HO deposited, ami tlien institut(!d pro- ; land i:i ipiestiou was dcdicat'.'d for a market
ceedings a;,'ainst the company to compel pay- ' s(|aaro oidy, and that tliis lease liul l)een ^'ranted
ment or foreclose the interest of the company ■ witliout authnrity, and simnld not be renewed :
under their act of inci>rporati(m. 'J'lie court
fused this relief, ))ut granted a re(;eiver of the
tolls, &c., of the c(inii)any, which he was to
apply in m untaining the works and payment of
salaries of the servants of the company, and then
in ])ayment of the arrears of interest paid, and
payment <>f interest on ontstaixling diihentures.
ISraiitj'oril v. Tin- Uninil. /'In r Xnr'njnihm Voiii-
/iiiiii/, S ('hv. -'1(>.
After the jiassing of the •21 Viet. e. 17, a mu
— Held on demurrer, no tlefenee. Wmli \, The
('iir/rir.itioii. (If' III" T'lirii ,,/' /intiif/'iiril, 19 <.). B.
•-'07.
Declaration agunst the eorporation of tlio
town of reterbiirough for 18'iO, for work and
m.aterials, and for goods an 1 money snpplioil "to
aid and assist in the eonstruetion of a certain
bridge across the river ( )tonabee. eonneetiug tho
boundary line between tln^ townsiiiiis ol'Otonabeo
and Douro, in said county of I'eterlnrough, with
uicipal corporation invested on mortgage part of , the boundary line between the township of
the surplus clergy reserve nioiu'ys in their hands, ; Smith ami the town of I'eterliorough. " Pleas 1.
an<l the mortgagors made def.ault in payment, : That the cause of aetiou ar.ise for and eoncern-
whoreuiiou the municipality tiled a bill to fore- I ing a del)t incurred and falling due during 18.')9,
close the securities : —ireid, that the munici- | which was not within tho ordinary ex])eiidituro
pality were entitled to a decree of foreclosure, i of the cor|ioration for that year, and for which'
and were not restricted to a sale of the property no estimate was made and no rate imposed. 2.
only, notwithstanding the statutes of mort- i That the debt was incurred in IS,")',), for assisting
MHnvqiiiUtji of Oxfordx. Btuhij, 12 Cliy. j to builil a bridge not within tlie municipality,
j which debt was not authorized by any by-law,
i»-i i. 11 i. 1 t I nor any rate lu'ovided therefor, .'?. That tho
U here a mortttaije on laml w.is executed to i , . , ■^ \, .i , i c ,, ',
oriilge was not on the bounds of the said town
main.
•.'7(i.
a municipal corjioration to secure a dclit due to ]
the corpm'ation by its treasurer, and by the mis- |
take of both ]iarties the mortgage did not cover a
part of the land which it was intended to mort-
gage : — Held, that the corjioration was not en-
titled to a decree rectifying the mortgage, tlunigh
a private person under the eircuinstanccs would
have been so entitled. Iiroicn v. McXah, 20
Chy. 17!).
of I'eterborough : — Held, mi demurrer, that tho
lirst and second pleas shewed a good defence ;
and that the third plea, was also go.id, for the
declaration .snllieicntly shewed that the bridge
was not within the town, thoiiuh that was not
negatived by the plea. Sfuff <■/ nl. v. '/'In Cnrpor-
ation of the Tuwii of Pctirhorom/li, 19 Q. H. 4l)0.
The first count elaimed the ri'dit under an iin-
,,., ^, , , , 1 i 1 ' plied contract to furnish the srradin'', ^'rnbbiuj;.
Whore the owner of property had executed a j f^,„, ,1.;^^,,;, „f ^^ ^.....j^,-,^ nulnber \,f niiles of
mortgage and release thereof to a municipal j ,,„,^,^ f,„, tluMlefcndants in their county, alleging
I com-
.Setting
alleged (though as to t lis the a hdavits were ^ i,^^,,r^.f^,,,,^^i ^^ t,,^,,^^^;^^ ^,.,,i^], .^„^,^„^j^^,, t,,^ j^^^-J^
cuutradietory), the purcha.ser had had seven j „f debentures f.)r £.-50,000, and stated that work
years quiet possessum, during which tune he „,^,i^, 4,^;, ,„^,„t ^„^| ^,^t,.^^ ^^.,„.,. ,,„,j^,,. ^,,3
m.irtgage and release thereof t.. a municipa j ,,„^^,^ f,„, t,,, -i^f,,„,i^^„t^ ;„ ^,,^1,. ^.,„,„t ^^U ■
corporation, and the corporation alterwards s.dd j t,,,^^ defendants i.revented the plaintitlfroin 01
tue property with the know edge ot such owner 1 j,i,.ti„y the same! Defendants nleaded, .'?, .Sett
and without objection by hiin i-itil, as ^vas ; ,\^,t ^j" .,,^,„^,.,jt ,j^,t„.^^,,^ j,,' ,^^,,j.^,^^ .^„,, .^ .
had miprovcd the property, the case was „.^^.t„„j.j-,.^^t,.^^„.,„,,^ ^^..^^,,,„j^t„^l,y^^j^,jt
kid a proper one tor granting an injuiictmn to : J,f i;^,oo,OlO; that the work contracted to be done
hearing restraining an action of ejectment ! , t,,^ plaintills was reduced in .luantity, as tho
til
j^ainst the purchaser. /!>.
XIII. AcTIOXS AND I'KOrEEniNCi.S A(!AISST
Ml'NlCU'AL CoKrOUATION.S.
1. <)n Contrartu or Dchf-nfitrcn not Authorized hij
/mw.
Vontracti^.] — A plea that the cause of action,
it any, arose for and concerning a debt incurred
:iiid falling due during tho preceding year to
that in which action brought, which was not
within the ordinary ex})enditure of the corpora-
tion for that year, and for which no estimate was
made and no rate imposed, cannot be allowed on
ail application to plead several matters, with
iitlior pleas going to the merits of the cause of
action. MeUiniiix \. l^he ('or/>orntion of' flie l'/7-
l'<r<>f Yor/cviUe, 7 L. J. 08.-0. L. Chamb.—
I'loijinson.
157
ontraet permitted, and as reduced was permit-
ted to be done; that the W(U'k to be done was
not part of defendants' ordinary expenditure ;
that there was no rate or by-la\\' authori/ing tho
work or payment other than the one referred to
in the plea ; and that the debentures issued un-
der this by-law are i)aid or re(piired for the pay-
ment of work actually done. Upon demurrer,
the plea was held good, as well as <itlier pleas,
setting up a defence similar in substance, on the
autliority of Mellish >\ The Town ( 'ouncil of the
Town of Brantford, 2 C. P. So, and Scott r. The
Corporation of the Town of Peterborough, 91 Q.
B. 4G9. Wrhj/it et al. v. The Corporation of tlie
Vountij ofUrey, 18 C. P. 479.
The fourth count stated that in consideration
that the plaintiffs wouhl grade, &c,, certain roads
for defendants, they agreed to pay .*!200,010 in
debentures ; tliat although defendants did de-
liver to the plaintiffs certain pretended deben-
2400
MUNICIPAL CORPORATIONS.
2500
tures, j'ct suoli delioiitures at tlio time of (lelivji y
thereof woro, to tliu knowlcdj^o of (lefon<lants,
anil ill fr.'iuil of the i>laiiitiirH, illegal and void,
whorel)y, kc. To this the defoudauts iileaded,
That the agreement was contained in the deed
set out in tlie t!iir<l plea, and the dehentnrea were
issued under the liy-law set out in that plea, and
were in all respeets as MUtlioi'ized by the hydaw,
and were aw good and vmIhI as hy law they eould
be m;ule under tliat authority : that defendants
were a nuniii!ipal eoi'jioiation ; that the deheu-
tures were delivei'ed to the jilainiill's in the year
18(il, for Work done hy the iilaintill's in that year
under the agreement, an<l were no part of the
ordinary exjienditure of any nuinieipal year :
that the hy law \inder which they were issued,
was the only hy law passed in resjieet to this
matter; and no i'at(! was inijiosed for the expen-
diture, exeejit under tliat hy law : that defen-
dants had no authority i)ut tliat liy law to make
the deed, anil have no moneys or debentures
ai)])lieahlo to the ]iayment of the ]>laintifl' for
work, except the debentures issued under that
by-law : — Held, bad, on demurier, as admitting
the illegality of the debentui'es, and not denying
that they were given to the jjlaintifl's with full
knowledge of their illegality and in fraud of the
plaintiffs, for whieh fraud defendants would be
liable. //>.
The jjlaintiir, in llecember, 18(iO, entered into
a contract under seal, with the eor[ioration of a
eity, to construct a main drain and i .damize
<a street, to be comjileted by the fii. t i August,
1S()1, at a cost of 64000. Having done the work
ho sued for it, and the jury tound that thiTe was
no bydaw, but that the work was within *•'■.
ordiiiarj' expenditure : — Held, it \ , ing ;,au
judgment of the County Court, and allirr.ing
Seott r. The Corporation of I'eterlxirough, lii
Q. H. 4(!!l, that this was clearly a, matter not
within the term "ordinary expenditure" as
used in the Municipal Corporations Act : that
the jury should have lieen so directed ; and that
the idaintiir could not recover. Held, also, that
the fact of plaintiff having been allowed to go on
without any intimation that no by-l.aw had jjeen
passed could make no differenee, for it was his
part to see that defendants were <luly authorized
to make the contract. Criw-' v. 77«' Curpunttiuii
of the VUy of OUiiini, 03 (^ ii. --'SS.
The plaintiffs sued defend.iiits for lumber sup-
plied to till 111 for building an engine house, &o.
Defendants pleaded that the claim was for a debt
falling due in 1S74, and was not within their
ordinary expenditure during that year : that no
estimate was made by them, nor an assessment
or levy made to jiay the debt, nor any by-law
jjassed to create such debt or to impose a rate to
pay it ; and defendants ha<l not in 1874, nor at
the commencement of this suit, any moneys out
of which to jiay the same. It appeared that by
by-law passed on the VAih July, 1874, defendants
appropriated .^!l, 300 received from the nnmicipal
loan fund for certain specified works to he done
in the municipality, including that for which
this lumber was supplied, hut the expenditure
was over Sl'2,000, and there was in that year a
deticiency of .'ji!r),00(), and more than two cents in
the dollar would be required to meet this debt,
with the other liabilities : — Held, that the plain-
tiff's eould not recover. Pott>t ft iif, v. The
Corpiinili'm. of the Vlllmjc uf Dunuinlle, 38 Q.
Seo {.Kjrporatiiin of the Cuinily tif Wint worth v.
(7()r/i<init!tiii of Ihi' ('it 11 of /faiiiiltoii, 34 Q. K
r>S-), ]). •_>4!)i;"; /foiicL- v.' Toini of iVhilliy, 14
Chy. 071, p. 248().
Dilii )itiiri'.i.]~-A debenture umler the corporate
seal for payment of a debt due or loan contrac-
ted under a by-law M hieh does not provide by
sjieeial rate for the payment of such debt or loan,
does not esto[) the council from setting up as a
defence to an action on the debenture the inva-
lidity of such by-law. J/r///.</( v. '/'//' '/'iiirn
CuiiiirU oj thi- Toirii of lirdtiijiloii, '1 C. 1'. 3,").
The fact that a debenture had been stolen
before being issued Held, no bar to the claim
of a boml tide holder for value without notice.
A |ilea that such debenture was not issued
"under the formalities rc(|uired by law," be-
cause the bydaw under which it was issued <lid
not settle a special rate, and was therefore void; —
Held, bad, hu' not averring distinctly that such
del)enture was issued in imrsuaiK^e of a by-law,
and for not pointing out wherein it was defec-
tive. Thf 'I'nist mill Loitu Co. ofC/iiiir ('inuulu
V. Thf Citii of JIaiiiiltoii, 7 C. V. !)8.
The i)laintiff sued on two debentures issued
by defendants. Defendants pleaded that the
debentures were issued under a liy-law, which
was illegal for want of compliance with the direc-
tions of the statute, and that the debentures
therefore were not binding on them. The ])laiii-
tiff replied that he was a boml tide holder for
value, and without notice of the illegality ; and
ujion the issue the jury in the county court
found in the jilaintitl's favour. The judge re-
fused to grant a re-plcader. and ujioii appeal-
Held, that he was right, for a re-jdeader is
granted only to advance subst.uitial justice.
A Ill/till V. '/Ill- Miiiiiciiitilitii of thi '/'oii'iishi/i uf
Kiiiu.sloii, ItiQ. B. IL'I.
Action on Cobourg harbour debentures issued
under 13 & 14 Viet. c. 83, — Kffeet of i'-.' Vict. e.
I.'), making such debentures valid --I'lea, tliat
the debentures were not issued for the harbour,
hut for a different purpose : — Held, no defence as
against bona lide holders, for value without
notice — Form of debentures — Pleading. Crair-
foril I't (i/. V. The Corporntion of the 7'oirii ni'
Coboiir,], -21 Q. B. 11.3.
2. Other Cfixex.
An acti(ui of debt held maintainable against
a nmnicijial council njion a contract entered iiito
with the building committee for building the gaol
and court house of the district before tlie district
was set apart ; and that it was sutKcient in the
ileclaration to describe the building committee as
such, without naming the persons of which it
was composed. Keiitin;/ v. The Coitiieil of l/c
JJUlrii-t of.Siiiicoe, 1 Q. B. 28.
The District Council Act, 4 k 5 Vict. c. 10.
did not subject a district council to be sued
uptm an iniidied assumpsit by reason of aiiv
transaction between the plaintiffs and the jus-
tices in (i)uarter Sessions, or the treasurer of the
district, before the existence of the council. Aoc'
el (il. v. Ollaii'tt Dixirkt Coiiiiril, 4 Q. B. 194.
A district council cannot be sued upon tik'
C(mnnoii money count on account stated, unless
at least tlje subject matter of the account In-
2500
2501
MUNICIPAL CORPORATIONS.
2503
till (,f \V,ntini>rlh v.
'[aniillun, ^ Q- 1^-
uuiUt the coriiorato
luo (irloiiii cdiitrat;-
loos iii>t iii-'ivKle l>y
of such. U-l.t or !";">■
from Huttiuj:! »\< ''» '"-
.loliuuturo tho mva-
r,//;.sA V. 7'A.- /""•"
ni,lo„, -2 C. V. 35.
ure had hecii stolen
„.. l.iu- to tlic claim
valu(! witliout notice
;uie was i"'t >»f"^'l
_..,uire.l l.y law, I'C-
uch it was issncil<li.l
I was therefore volit:-
;,r .Ustinetly that such
ursuanee of a hy-hw.
wherein it was .leice-
„,..,. o/T/r"- '""'"'"
7 V. V. '.IH.
two (leheutures issue.l
,nts l-lcadcl that tlie
un.lei- a hy-law, wh.ch
uulianee with the. lirec-
,1 tliat the (lehentures
0,,'them. Theplain-
Iff (111 Lli'-"*' ' , , * f
a 1.on;\ ti.le holder for
e of the illegality ; and
•v in the eounty court
favour. Tlie judge re-
lor. and upon apiieal-
rht, for a ve-ldea<ler is
.^e «ul,stllitial justice
„nt>i .;/• '/"• Tuivuxhip of
rhour dehcntnres issued
i'i— HtVectof -J-i Vict. c.
liVures valid-l'lea that
issued for the harbour,
y ._UeM, no defence as
llors, for value witliout
I'leading. Cnnr-
,if thr TdVti '[I
itures-
■eld maiutainalde agaiiii't
111 a contract entered int..
Vttee for building the ga..l
Ilistriet bef(.re the district
lat it was sutficient m tlie
Ttlie buihliug committee ii.<
the ners.ms («f which it
!„/ V. 7'Ar Ciiioinl <.} Ill'
W -28.
1 Act, 4 & o Vict. c. 10
itriet council to he sued
Imiiait hy reason of any
[he i.laintifts and the JU'^-
L, or the treasurer ottho
Iteiice of the council. /.--•
lannot be sued uvon the
1 oil account stated, uii c-^-
matter of the account U-
averred, and it is seen to lie such as can by law i Twenty years previously they had passed a by-
create a delit from defendants to plaintiffs to he ' law giving the right to deposit materials for
satisfied out of tlie funds of the district. Sem- I liuildiiig puriioses on the higliways of the city,
1)1(S that it was not iieces.sary before action to and they sul)se(pier.tly demised cei'taiii premises
give a notice to tlie treasurer of the London Dis- adjoining tlie market to M., wiio o1)structe(l a
trict of the claims of the plaintitrs against tlie portion of the same with buililiiig materials,
district. Semlile, also, that it was necessary, in ] The [ilaintiH' thereupon siiecl ih'fendaiits on tluir
order to a right of action, to avfr a recpiest from j ini])lied covenant for undisturlied collection of
the plaiiitills to the defendants to pay over the j said fees, and charging a wrongful license to M.
to obstruct said m:\rket : -Hehl, that such action
was not maintaiiialile ; that the by-law was one
which the defendants liad aiitiioritv, with a view
to public improveiiieiit and convenience, to pass,
ami that tlie plaintilf must be taken to have been
cognizant of it when he became their tenant ;
that M. might, without clefeiid.uits' license, have
occupied a reasonal)le portion of the highway,
the by-law apparently merely restricting, witli-
out e.\[)ressly conferring, the right of occuii.-itioii ;
that the market being fixed onaimblic highway,
which was prinni facie for pni[ioses of public
travel, tile exercise of the rights incident to such
market must be subordinate to the primary and
principal purposes of the highway ; anil that there
was no such implied covenant tor (piiet enjoy-
ment as the plaintilV asserted, for there could n<it
be in the highway any such absolute and exclu-
sive enjoyment as he claimed was secured to
him. Ri'i/iiuli/s v. 77/'' ('(irjiuriitiiiii uft/ic Ci/i/
of Toniiiiu, 1") C. r. 2Hi
Held, in apjieal, Itichards, t'. .1., Wilson, J.,
and -Mowat, V.C, diss. That a jiarty aggrieved
hy an act of a municipal council is not bound to
eoninienco his action within six months from tlie
committing of the act complained of. /I(ifli/iii,i
V. 'I'/lC Cni'/jiirntidll ilf lh< L' nihil CiiKlllii.l 'if
Jfiiroii and JirHrr, ',i E. & A. K!!).
Section 12(! of the Assessment Act, .S'J \'ict. c.
3(), (>., directs that when the county treasurer is
satistied there is distress ujioii any lands of non-
residents in arrear for taxes, he shall issue a
warrant un<ler his hand and seal to the collector
of the municipality to levy. I'lie warrant was
tested "(liven under my hand and .seal, being the
corporate seal ;"' and the seal bore the same form,
emblem, legend, it c, as the county seal. The
collector sold the plaintitl's goods under it, but
it was not shewn to liave been authorized by the
1 eounty council, nor had they received the pro-
ceeds of the sale : — Held, that they were not
liable in trespass or trover. Siiiilir \. Tin- Ci.r-
jiorutlon <f llic Count 1/ oj Froiilinuc. 30 Q. B.
275.
Held, that the fact of a municipal council hav-
ing undertaken to indemnify an otlicer foi' lawful
acts done in his otlieial capacity, does not enti-
tle him til look to them for indemnity against
the consequences of unlawful acts, as for in-
stance, in this case, of a wr ingful distress ; and
that the plaintiff could not lie allowed to im-
peach the judgment of a competent court by
which he was held to he a wrong<loer. Irn-in v.
The Coritoration of Mariiiomi, '2'J C. 1'. 307.
In trespass against a municipal corporation for
the act of their path-master, in causing statute
labour to be performed on certain land of the
plaintifl', alleged by defendants to he an original
allowance for roail, it apjieared that the path-
Defendants leased to plaintiff tlie market fees master acted under an order written by the
of a wood market established in one of the streets 1 clerk, by the direction of the council while iii
of the city, covenanting rgaiiist their own inter- ' sessiow : — Held, suflicinit to render the cor-
ftrence, or that of any one hy their license, poration liable, and that a by-law was not necea-
nioney due. Seiiible, also, that in suing for a
debt due by the district under sec, 43 of 4 & 5
Vict. c. 10, it should be averre<l that defen<lants
have fiiiKls to pay the debt, after discharging
the demands to which the ."litth clause gives a
preference, //iirnii /)infrirl (.'oiiiiril v. 7'/r' Lon-
don DUtikt Connrll, 4 (^ H. .30'_'.
Action against district council under 10 it 11
Vict. c. (i, for injury resulting in <leath in walk-
ing u]) the court house steps : — Held, not main-
tainaiile. The council have not the duty of
keeping the court house in repair, hut the dis-
trict surveyor, on whose repiu't they have to pass
a by-law. (j)ua're, would the council be liable to
an individual for not passing such a by law after
the re[)ort of the surveyor had been submitted.
llinrkislinir v. Tin' JJis/rirt Council of the Dial rict
of Diilhiiu.Mi- 7 y. B. aOO.
Held, that a teacher could not maintain an
action .against the. corporation for refusing to
levy a rate for his salary, upon an estimate fur-
nished to them for that purpose by the trustees.
Smith V. 'J' he CorjKirotion (f the I'illniii' (f Col-
li ni/n-oml, l',l (.}. H. •_',")!) ; Mnu.'ion v, JlHiiiiijxilih/
of ('ollinijn'ooil, i) C. I', 4!»7.
There is no tluty .at coinmou law upon owners
or occupiers of houses to remove snow from the
roof, and no liability for accidents caused by its
falling, Liaaruxx. The Corjionition of the City
if Toronto, 19 Q. B, 9.
Defendants owning land in the city, leased it
to H, uiion certain conditions as to building,
.and he erected a house upon it under the
directions of their architect. The lower story
w.as occupied by one .S, as lessee of H., and
the ujiper story and garret by defendants. There
w.as no evidence of any faulty or negligent con-
struction of the house or roof, nor of any by-law
p.assed by defendants to regulate the removal of
snow. The plaintiff having been injured while
passing along the street by snow falling from the
roof : — Held, that defendants were not liable. ///.
C, a servant living in the township of London,
w.as travelling to Koinoka with a load of trees,
and w.as injured on the way by the waggon up-
setting. He was taken to the tavern (if M,, in
the township of Lobo, where his leg was ampu-
tated, and be remained several months at M,'s
expense, <lestitute and helpless : — Hehl, that the
court had no power to compel the township cor-
poration to provide for his relief. //( re J/c-
JJoni/all and the Corjionition of the Townnhip if
Luho, 21 Q, B. 80.
Agreement by corporation to give debentures
hi payment for work. Action for fraud in know-
ingly giving the pl.aintiffs illegal and invalid
debentures, HciiWriiihl et al. v. The Corjionition
uf the Count!/ of Ony, 12 C. P, 479, p. 2498,
2503
MUNICIPAL CORrORATIONS.
2504
Bary. Xcinlk
22 I', r. 487.
V. The Corpora I ton of Hoxit H ul..
by a i)arty injured by such acts to be relieved in
Id by 81
Held,
The defendants contracted with R and A. for
tlie cdnstrut'tion of a brick sewer on Yonge street,
unilei' a contract which jirovided that t!ic work
should be doiif accnnliii>i to the direetions and
to the sati^faiition of defendants' engineer, who
had [Kiwer, if the contractors shoidd not jiroceed
according to the contract or to liis satisfaction,
to coiniili'tc tlie work at their exiicnsc. Uurinu;
the worli tlie city engineer visited it frccjucntly,
Miii)crintcnding, and two inspectors for defen-
dants were tlierc ii instantly, to see tliat tlie
S]iecilicatioiis were carrieil out. In order to get
rid of the water corning down, it was (iannicd
l)acl; to raise it to the level of another sewer
which was useil as an outlet, and in cDnscciueucc
of heavy fills (if rain the water thus ]ienned
back overtlowcci into the ijlaintills' cellar. It j
was contended that the work being carried <ui I
by indeiie:idciit contractors ilcfcndauts were not
liable ; liut. Held, otherwise, for tiie woi'k was
<loiie nnder defendants' control and supervisinn ;
an<l, (^)ua■rc, wiiether the defeudaiits coulil
transfci' such a work, so as to escajie liability.
Gnixxick >'/ (il. V. T/ic ( "it;/ of Toronto, ;i!) ii. B. 30().
respect thereof: - Held, notwithstanding, that "ne
was a proper party to the bill. Stanillij v. I\ ri/,
23 t'hy. 507.
A municipal corporation, after raising money
on the credit of the .Mnnici]ial Loan Fund for a
purpose specilicil in the by-law, passed another
l»ydaw diverting the delicntures to anotiier piir-
jiose ; and nnder this second by law tiic del)en-
tnres jiassed into tlie hands of the Hank of
rpjier Canada : Held, that a bill would lie, by
a r.-itepayer on Ipch.ilf of himself and all dtlier
rateiiayers of the municipality, against the l)ank
and tlie innnici]i.d cor[ioratioii, for the r(;.stora-
tion of the debentures to the cor|poiatioii ; and a
demurrer, on the ground tii.it the attorney-
general was not a defendant, was ovor-riiled.
\ liroijilln V. lionk of Upinr I'anada, ISChy. 544.
XTV. rF.H<0\AL LlAIIlI.ITY (>F Mi'.MIlF.HS.
Case against the mayor of a mnnicipal council,
illeging that the council in ses.sion h id i-esolved
I and deterniined (not under seal) to demise cer-
I tain land to the iihiintiti', and that he was willinj;
Under the onlers of the city comniissi.uier of I '"I'V''*'"'"''^^'^ *!'.'''''''',*'/'^''',; '"''1 *''''* t''^\^'""",^:'}
while in session, defendant being mayor, did
instruct and order him as such mayor, dii behalf
and in the name of the council, to make and ex-
ecute the lease, of wiiich he hai^ notice, but
which he maliciously refused tixlo, tiiough there-
unto reipiested : — Held, action not maintainable.
Fair V. Moore, .S C. P. 484.
Indictment charging that defendants, FT., O.,
and 1)., were township councillors of T'.ast Nis-
sonri, and F. treasurer ; and that defendants
intending to dcfr.ind the council of I'HOO of the
money of said council, falsely, fraudulently and
unlawfully did combine and coiisjiire unlawfully
and fraudulently to obtain and get iiito their
the expense of rai-sing the house and I hands, and did then, in pursuance of such con-
removing the kitchen cmdd not be recovered. } .spiracy, and for the unlawful purjiose aforesaid,
When the facts alleged in the declaration are j unlawfully meet together, ami fraudulently and
the city of Toronto, large (|uantities of rubbish
ami oti'al, olI'Liisive and injurious to health, were
duriui' the summer deposited in a lane adjoining
the idaintiir's cottages, by which the lane was
raised three or four feet, coming up to the win-
dows, and thelilth ran over it into the basement ;
the well attacheil to the houses was rendered unfit
for use, so tliat the plaintitl' was compelled to dig
a new one, and he had also to raise one of the
houses, anil remove the kitchen, to suit the level
of the lane ; tiie tenants refused to remain, and
lie was obliged to lower the rent : — Held, that
the defendants were liable for the acts of the
commissioner, without any by-law being shewn ;
but that
proved, tlie idaintilf cannot be nonsuited upon
the ground that they disclose no cause of action.
Remarks as to the form of the second count in
this ease. Liwi.^v. Tin Corporation if t/u. Cifi/
of Toronto, .39 Q. B. .343.
The power given by see. 425, sub-s. l,"of the
Municipal Act of 1873, to improve, repair, widen,
and alter streets, includes the power, wlien neces-
sary for these purposes, to level, raise, or lower
the streets. lb.
Where a corporation having a debt to pay,
which it was to their advantage to discharge im-
mediately, being a balance due upon their sub-
8crii)tion to a railway, raised money upon an
• aecommodatiou note of an inilividual, under
sanction of a resolution, and applied the money
to the payment of the debt, promising to iirotect
the note or to repay, relief was given in this
court against the corporation upon a breach of
the promiae. And if the corporation couM have
been compelled to pay the itebt, the person so
giving his note will be entitled to stand in the
place of the corporation creditor. Burn/mm v.
Peterborowjh, 8 Cliy. 366.
The mayor of Cooourg was ex officio a member
of the commissioners of the Colwurg town trust
when certain acts eomplaine<l of were done, but
uulawfiiUy get into their hands f.'WO of the
moneys of said council, then being in the hands
of said T. as such treasurer as aforesaid : — Held,
bad, on writ of error. Horxenian el al. v. Jic/ino,
10 Q. B. 543.
defendant was sued as mayor of a town for
refusing to sign an order to enable plaintilf to
obtain a saloon license. The notice of action
was signed by iilaintill', with the name of plaiii-
tilf's attorney endorsed thereon :^Held, 1 . That
as it must be jiresumed defendant, in refusing to
sign the order, intended to act in the discharge
of his official duty, he was entitled to notice.
2. That the (piestion of the bona fides of defen-
dant in refusing to sign the order, not having
been raised at the trial, could not be raised in
term. Moran v. Palmer, 13 C. 1'. 528.
The treasurer having paid four orders on him,
signed by the reeve of the municipality uiiiler
the authority of resolutions passed by defendants
(three out of five of the council), sitting as reeve
and council : — Held, that moneys paid by the
treasurer on the order of the reeve which the
municipal council has no authority to direct to
be paiti, will be considered township money still
in his hands. Held, also, that althimgh the
debt may be one which the municipality are not
ceased to be such before the iustitution of a suit i liable to pay, it does not thence follow that the
2504
2505
MUNICIPAL CORPORATIONS.
2506
■s to be reliuved in
l.stan.linB, that ne
ftiT raisin,!^ money
a \,„;iu KuH'l f'"'^"'
i\v iiaMSfil iuiothcr
„.,.s to iinotUor imr-
[ l.ylaw the ael)en-
U of till! 15iUik of
.^1,111 wcmiaiK', l>y
If and hU otiicr
st t\n- bank
the iv^itora-
ty, ai^ains
iioii. lor
, e'oi-|>oiatioii ; aiul a
that the attonicy-
lut, vva:4
,vir-iiilii(l.
•".um.At, 13 Cliy. .'.4-1.
,,IY (>F I^lKMUF.ltS.
f a umuleil-aloouucil.
I session huli-es'-lvcl
!• seal) todeimse oci-
ndthatheNvasvv.ll.nx
, an>l that the c.ainei
u,t heinj^ "'".vol-, ;l'|
s„eh luayor ou hehalt
uucil, to make au.l cx-
\i he ha<i uotK'o, 'mt
,e.Uo<h.,t.iouj.hthere-
^tiounotmamtaiuable.
'nuKMUors of Kast N.H-
. aiul that .lefeu.Janta
/eouucilof €:«)0of the
Llselv, fvau.lulently.aml
aiu a.ul «<^t mt.. theu^
,,uvsuauee of su-h u
kI lul l.u.Tos^-;vfores.ua
v, ami fi-aiululeutl.V and
'! r han.ls tlW o the
:heu heuig in the lumj
1,01- as afovesaul •.--Held,
us mayor of a town for
f: to enahlo plaint.t to
I The notice of aet.on
L-ith the name of plam-
lhereou:-Hehl, L, Ika*
I cfendant, in reftismg to
to act in the .Uscharge
kvas entitled to notice.
Ptl o 1'ona tides of .lefen-
r he order not havmg
II conld not he raise.l m
[;, 13 C. V. 528.
Laid four orders on bim,
ithe nmnicirality nnder
P passed by defendants
feonncil), Bitting as reec
\iat moneys paid 1 y t e
' of the reeve which the
tio authority to direct t^
Ired township money St 11
K., that although the
Ithe municipality are not
t thence foUow that the
members of the municipal council w<mld bo per- I councillors ; as on account of tlic nature of the
soiially liable to pay such tlebt, .so that it couhl (pieHtions in which tlio plaiiitifl' had siiecceded
be said to l)o sucli a payment of their own debt against them tlio court emild not almolve thein
out of tlie township funds as would enable tlie from [laying any iioition of the costs, lltu/i r v.
plaintids to maintain an action for money had Kin; 'IS t'hy. liliT.
and received. T/n' Miiiihipul Cniiiicil nf Knst
A'U-iviiri V. l/orm iiifin if ill., C I'. 180.
Oefendaiits were a committee of the city
council to inspect and superintend the building
of a gaol. It was (leteriiiinc(l at a meeting of
the eommittec tliat there should lie a ceremony
on the oecasion of laying the corner stone, and a
luncheon given in St. Lawrence Hall ; and one
of tlie defendants, tlio cliairman, gave an order
.iddresHcd to the pliintitf as " .immission mer-
chant," for the supply of certain wines s|ieeilied,
to be sent to the , St. Lawreiic<! hall, directing i..,. n ,. . . * i. "i ■ i i i- 4.1
,., , ,.' iii-iiif T with another person to take a contract tnnii the
linn to render his account to the lioard ot gaol .„ ... .. ' ,, ,.. , ,. ■ 1 ■
. ,,,, , ,■„. , 1 ■ , T ■,, i , ii 1 cor lor.itioii lor the execution ot cert, iiu Works in
insiiectors. l\w iilaintnt sent Ins lull to the I , . ' ,, n- \ c » 1 v ■ 1 1
, ' , , . , „. ' , 1 1 .. I- M' 1 • his name, tin' irolits whereof were to lie divided
chanilHi lam s ollice, heaileit \\. I.. «.'liairnian, 1, , ti n 1 1 i 1 ■ , .■
, , ,. ,• ' , ,, f,, rn , .,.,; between them: Hehl, to lie 111 contravention
board 01 jiaol insiu.'etors, lioiit;ht oM t. 1., agent. 1 ,■ .1 ■ ■ 1 ^ /ic \- 1. i^i, 1 .^i
,,,, 11 f 1 J. . \: . i\ ot the municipal act Hi \ let. e. IS , and the
The eoniieil, however, rctiised to sanction the , ,. ,' , ,.' ., " . ..
,■,',,,, , .1 1 e court retu.-icil to eiitorc'.' t u^ aLrreenieiit tor a
cxneiiditnre, and he then siii'd the members of , . 1 ^ 1 .■ 1 , 1 '^ 1 ■ 1 i.i
., ' •,,' , „ , *. t *-! ... 4.;. , partnership; but deteiidant having ( Cnied the
the committee who were present at the iiic'tiiig J, , „ 1 •, , 1 • 1 t 1 r 1 T 1 n
1 ,, , . ' 11 1 1 ii i ii ^partnership, which was estalilished by the evi-
wheii the order was <riven : - Mclil. tliat thev ; ', ,, ' , ■,, ,• , -.i ■ . .
,, Til" 1 ii i ii ,1 •, j.;ir ! ''ciiee, the lull was (lismi.sscit without costs,
were iicrsonallv liable, and that the iilaintifi , , ,,. ^. ■ n ..,.1 .,...,
. , , ' • 1 •• ,1 I- ii 1 I- 1 ' ' <ll^||l■^ V. tSii'inillv, t) ( hy. Zhl.
niiidit sue in his own name, (ineol the (Icteiid- •'
XV. CONTR.VOTS nV Mk.MIIKUH with ('iU'NCILS.
B., being a ineniber of the town eo'iiieil ami
employed by tlielii as tlieir solicitor, .sued for
services tendered as siieii ; -Udd, under 0. S.
U. C. e. .">4, s. '2I!), that being a triiste.; for the
corporation, he could not recover, liiirnlnun v.
Til'' ('iir/i'irnfiiiii 0/ fill' Tiiini uf Pih rhoromih,
12 C. I'. !(«.
A member of a mnniciiial corporation agrec^d
ants, tile mayor, was present at the meeting t
referred to, and at lirst objected to the expense,
Semblo, that the mayor of a town or city can-
not imrchase at a tax s:ile of l.inds in liis mnni-
b'lt when tolil that it would be less tlian lie had ; cijiality, his duties nnder the statute conllietiiijj
heard he did not \ier.'seveie in his opposition.
ile afterwards wrote to the chairman t<i say that
he would attend the ccrenKUiy, but would not be
at the luncheon, because he was obliged to leave
town on bnsiiie.-s, ami because he disapproved of
so great and uiis;itist"aet<iry an t'Xpeiiditiire by
the eommittee. Ilehl, not snliieicnt to exempt
liim from liability with the others. T/ioiinis v.
]yu.-!i,ii it a/., -20 q. 1'.. :i:!i.
A bill will lie by some of tie inliabitants of a
municipality alleL;ing an illegal a])]ilieation of
the funds by the maycn-. which the
refused to interfei
is not a necessary ]iarty to such a suit. Piitir-fnn
with his interest as an intending purchaser.
(t'ri'DixIn'il V. I'nrin, '21 Ciiy. 221).
See Tlie Cifi/rf Toruhlu v. Boii-r^, 4 Cliy. 489,
p. 2.-iO"J.
X\'I. Co.MMlSSloN (IK ^'.NI,>^ll;^• INTO I'iNANCKS.
The authority of the executive govcriinieiit to
appoint a c'omniissioii to empiire into the liiiaii-
cial att'airs of a inunieipal corporation, docs not
eouiieii ' prevent such corjioratioii from suing for money
refuscl to interfere with'. Tile Attorney-* kmeral ! '''";.*" ^'f'"' '"; '■^^;v'"'« t'.'^ ^^f^- „{" '•'' ;'. '•''';.
•' - I triitidii Ik Ill-nil nil' I iir/)'iriili'iii nj tin- t Dimnliiii nj
I, . . . ,11 „- i-,-, - i Kliliiii mill Fi ninnnn it <i/., I.. .J. 207. --1*. C.
V. OOCVW, t: I, ll\'. 1(0. 11- I 1
*' — Itieliards.
Sec. 24,S, of the ^Municijial Institutions Act of
ISIill, as amended by 34 Viet. c. 30, s. 1.5, 0.,
authorizes the (loveriior in t'ouncil to issue a
commission to encjuire into the linaiuMal affairs
of the corporation, in case thirty iluly i|ualilied
electors of the iiiiiiiiei\iality petitiou therefor;
and sec. 244 iMiacts that tln^ exjicnsc of the com-
mission shall be determined and eertilied by the
minister of tiiiancc, ami shall tlieii become a debt
due to the eunimissioner by the corporation. In
an action by the eomiiiissioner for such expenses :
— Held, 1. That evidence was properly admitted
" \ to shew that the petitioners, who Were described
only as ratepayers, were electors as well ; and,
2. That defendants could not in this action dis-
pute the validity of the coniiiiissioii, liy shewing
tiiat one of the thirty, though on the electors'
roll, was not in fact a duly cpialiticd elector.
A rateiiayer tiled a bill in September, 1S71,
cmuplainiiig of certain acts of the treasurer and
certain township) councillors, done by them in
the years I8ti7, ISiW, ISi;!), and 1S70, .some of
them under by-laws whicli the bill charged to lie
illegal, but which until the tiling of this bill had
never been objected to bj' anyone. Amongst
other acts complained of, the bill charged that
the defendants had loaucil the funds of the town-
ship upon iiiMiroiier and insulticicnt securities.
After the bill was tiled the moneys so loaned
were all repaid, together with the interest, and
the evidence in the master's ollice established
that these loans were the only instances of mis
ap[ilicatioii of the funds of the municipality.
The t'ourt, in view of the fact that the bylaws
had never been moved .against ; that tlie defen-
dants had not received any benefit under them
such by-laws, and direct-jd the plaintiff to pay
the defendants their costs of suit, less the :i;'m
of !$150, which amount was to be borno one-half
by the treasurer, the other half by the township
•livrulioii oj the
Town of Cornwall, 3() Q. B. 225.
tHaoMKniripnlitiioftheTowntihijinfEaxtNi.isouri
V. Horseman et ai, 16 Q. B. 556, p. 2493.
2507
MUNICIPAL CORPORATIONS.
2508
XVII. MArrEKs Rekkuked to AnurruATioN. i their awiim ftgaiiiHt tliu father of the towiiHhip
..... 'ill i. treasurer, who was really liut not iioniina'lv
1 ^^ '.'.«?. f i^"'"'' ,'*l'l'",'"*':'\'^y a«reement, trcaHurer, an.lwho wa« a i.irty to tl>esul..ni,s«,ofi
aate.ll'8thot Deeeinher. ISr,.,, to settle eertuin ^^ ^^ ^^^ ^^.^^^ „f ^,,^ towiiship treasurers ac
counts. Jll.
ilitlereiices recited as peniliug between the city
of Londrju anil tlie county of Middlesex, re-
specting the eouipensatidu to lie paid l)y the city
to the county for the use of tiie county court
house and goal, and certain linancial atl'airs then
dejicnding between them. On the same day
they awarded that the .stock lield by the county I
in certain railways nicutioued should be divided, |
in tlie juopoition of onc-lifth to Ije transferred to i
the city, tlio remaining four-lifths to belong still ,
Corporations, sole or aggregate, if not dis-
abled, may submit disputes relating to corporatu
property to arbitration, and their successuru will
lie bound thereby. Jh,
t^uu^re, whether a resolution passed by tho
council, that arbitrators clioNcn under 1(! N'ict. e.
181, to detcrniine wliat slxiuld bu paiil to the
to the county ; 1'. That tlie city should pay the , pl:""tiir, for oiicning a road acmss his property,
county f.', 07. ■) on account of the county roads, ' «•'""''' ''1= instructed to take into considiiatuiu
■ ■ the damages to tlic plaintill s crops and teiices,
so that all diircieiucs might be settled, was
binding upon the council as a reference, //oi/ij-
.11)11 V. ■/'/((- M iinic'qnililii iij' tile 'J'liii-ii.i/d/inj'W'/iil/ii/,
17 <v>. i{. I'.m
and should keep such roads in icjiair w ithin the
city limits; 8. That the city should pay the
county tT,!H)(i in full for their portion of the
county debt ; 4. 'J'iiat in future each of the
municipalities slioulil pay the expense of all pris-
oners committed to the county gaol by each of
them respectively, and the portion of such ex-
Municipality of Wellington anil W'ilmot I'ebt
for (iiiclpli and Diiudas load Lialiility of Wil-
pense incurred by the city should be paid over j mut-^i;igi,t, of action -A ward under U & io
by them 111 .lanuary ot each year; .">. That xi^t. c. i), s. 7- -KH'eet of upon provisions of sec.
in tiiture the city should pay the county one- , y. Tin- Mii„irii,idV„uni idj tluiu.titly uf W, lliii,j-
e.xpcnses connected with I /y„ y TlteManicqiulUijo/ lliKTuivitMinij' W'ilmot,
third of all incidental
the county court-house and gaol, including re-
pairs and insurance, together with one-third of
all exjicnscs connected with the adininistration
of justice not ]iaid by government, such payment
to be made in the niontli of .January in each
17 (i. B. 71.
Upon motion to set aside an aw.ird made under
C. .S. U. t'. c. 5-1, s. 2(i, on the withdrawal of a
town from a ciuinty Held, that it was not
year; C. That the city should pay the county the necessary that such award sliould direct the
sums mentioned in the 1st, I'lid, and ."hd clauses,
with interest, in twelve months from tlie 1st of
.January, Ib.'ili, except that the city council
should [lay their share of the railway stock at
the time the county debentures given therefor
should become [layable ; 7th. That the award
should take eti'ect on the 1st of January, IS'i;'!,
and remain in force until the 1st of .January,
lS(iO : -Held, that the giving to the award a
retrospective ellect to the 1st of .ianuary, 185.5,
being the time when London was declared a city,
was not objectionable, but proper : that the arlii-
trators had authority to give time for payment,
as in the (ith clause : that the limiting the con-
tinuance of tile award to the 1st ot .January,
i8(i(), was inconsistent with the Vl \'ict. c. 81,
s. I'lK), and ivndcred the award bad as to the 4th
and 5th clauses, respecting the court house and
goal ; that the 4th clause of the award was also
town to pay any portion ol tlie existing debt of
tiie county, anil tliat tlie arliitrators, timliiig that
the whole debt iiad lieeii incurred for making
roads which had been of no benetit to tlie town,
were justilied in awarding that the town should
pay nothing on account of such del)t, and that
the county should refund what the town had
paid towards the construction ot such mads,
i'lie arbitrators did not take or lile any oral or
documentary evidence (under sec. ',ibS, suli-sec.
Hi), but relied upon the knowledge which two
of them had of tlic position of the municipalities
towards each other with relation to money mat-
ters, and obtained the specihc sums on « hich
their award was based irom the books of the
county treasurer. These sums were shewn to
the warden at the hist niceting of the arbitra-
tors, and their correctness was not disputed : -
Held, sultieieiit. Held, also, that the arbitrators
bad, because the act directs that the arbitrators ', had no power to award as to costs, and that part
shall settle a sum to be paid and does not au- I of the award was set aside. In n- tlif Corjiuriithiii
thorize a ratable divisijii of the exjieiises ; that <i/ '/'e i'nitrd Vouiitic-i uj Sortlituiiliciinnit lUiiL
the 4th and 5th clauses might be separated from \ JJnr/iam and the CuriiunUitjii of lite Totrn uJ Co-
the rest, and the aw aid set aside as to them only. ' l^omy, -0 (i. U. "283.
u' /■;/ ^''"' ^'""I'i'i'i, ''"'""'^ "J' ''':,''Z''!'^ <| Two municipalities on separation having failed
^l,ddk,,x and (hv \Iayor, .fc, of Ihe LtUj -^i ! to agree as to the disposition of certain p?operty
d^omlon, 14l.>. li. 6M. \, .^,j,^ i,;ii,iiitiuH between them, an arbitration was
Qu;ere, can the reeve of the township affix the \ had pursuant to the Alunicipal Act of 1873, sec.
seal of the township to a submission to arbitra- | -5, sub-sec. 5. The arbitrators decided that the
tion as to property of the township, without I principle expressed in subsec. 4 of sec. 25, tiiat
being specially authorized by a resolution of tho
council to do so. In re tlic Corjiuralion of the
Toicnsli'n> of Ell/on and Ftrijuson et aL, 6 L. J.
207— r. U.— Hiehards.
Arbitrators appointed by a nnuiicipal corpor-
ation as above mentioned may examine the
accounts of the corporation, though jjreviously
audited as the municipal law directs. lb.
Under the siiecial circumstances of this case,
it was held that the arbitrators might well make
the amount to be paid by one corporation to the
other should be " such sum of money as may bu
just," had reference only to a fair eipialization of
the assessment of the municipalities, and that no
other consideration should be regarded: — Held,
1. Tliat although by the general law this award
could not be impeached, iis there was nothing
wrong either of fact or of law on the face of the
award, the court must, nevertheless, when its
interference is invoked under sec. 21)5, entei- into
the merits of the matters submitted. 2, That
2508
,,■ „f the tDWimhil)
uit not udiuiuii'ly
;yt()thi;«ii\.iiiissiiiu
ihip treiVHiircr's ac-
2509
NATURALIZATION.
or.
10
rugate, if not
idiitiug to coiiMinvtu
(lia-
lllltc
iNvLU
tic.u l.iissi:>l liy tl'«
s^u uiukr IC. \ iL't. c.
,ul.l l.c l.iviil to tlic
iicnins liir* iii.iiierty,
io into cc.nsuUnvtiiiu
fs fi-oiis iHi'l t*;iici;s,
,ht l.e suttlcl w^w
:a ruforcuce. //;^'/!/-
^a Liability nt NN'l;
wivnl uu.li-r 1-1 & '•»
.„,u nn.virtinllrt ol sou.
^/„. c.u,///-/ II :'/'".'/-
lieToiniihtpoJ 111'/""',
. :m iiwanl i.ia.lo un.Jcr
n tliu %vithai-awal ot a
Lol.l, that It was not
ml sh.Hil.l .lu'fct tlio
,1 tlio existing .leht ot
ul.itratovs, tinilnig that
u hic-'uncl tor niaUmg
„e, benefit to tlie town,
„ that the town should
,T,- sueh .leht, and that
,a xvliat the town hail
nielion ot s"^'' '"f^"-
take or tile any oral oi'
uuler see. :5JS, sn >««"•
kuowle.lye whieh tjvo
„„ „l the luunieiliahties
relation to money mat-
,,,wi!ie sums on whieh
i.-om the hooks ot the
sums were slieNvn to
meeting of the arhitra-
.ss was not (lisputea : -
also, that the arliitrators
,a to eosts, and that part
llo //( nthcC"'-!"^"'"""",
„;■ \-orlhiu,il>cd(iii(l and
tiioiiof tin' Town oj Co-
J somvation having failtMl
litimi of certain property
Iheni, an arlntration was
lineipal AetonS.-^.see
Itrators .lecnled that the
lib-see. 4 of see. 2o, that
Iv one corporation to t it
luni of money as may he
K. to a fair eciuahzatiou ot
funieipal.ties, and that 1.0
liiUl be regarded:— Held
t yeueral law this a%yara
Id ;vs there was iiotliuig
Lf'hvwonthefaeeof the
I nevertheless, when its
tinder sec. '295, enter into
[era submitted. 2. iliat
the arbitrators should iiave taken into consider- 1 Fund Act, 10 Vict. c. 22, a loan of CI l.">,000, for
ation such otlu i* (:irenin.stance8 as they might I the purpo.sc of I'lmstructiiiL; eertiiii roads uf tho
have tliou;,ht jnst, .vi as to arrive at an ei|uitahle ! united eoiuities, in wliieli roads tin; town of
settlenu'iit l»^tween the mnnieipalitit's. Tlie I Port Hope was not directly interested. After-
award ivas tlierefore remitted to tiie arldtrators | wards the town itself raised a large sum, under
to aw ird wliat tliey might liud to be under all tlu^ same fund, to aid in tlie eoMstnution of eer-
tlie e'reiimstances just between the parties, n|ioii lain railways, and foi' tlii^ improvement of tlio
a liberal and eomprelieusive interpretation of tiie I'ort Hopi^ li.arliour ; Held, tiiat tlie town, iu
statute, //( n tin- An-'inl hilinrn ili< 'I'lunisli'iji [addition to its direct lialiility oil tliu last men-
iiil l/ii !'i//f/;/r .//' Wrii.ii/i r, 12 I,..). I tioued loan, eontiinieil lialik
ot' IhnfUk
N. S. (U.-
r. r. —A. wiisc
XVI 1 1. ,Mis( T.i.i.ANKors C.vsKx.
Senilile, althougli tlie statute enacts that all
bydaws shall bi; autlieiiticated by se.il, and signed
l)y tin; jicrsoii presiding, yet it is not necessary
to set out these facts in pleading a by-law, but
tioued loan, eontiinieil liable for its proimrtiou
of the di'lieutMi'es issu-d by tli: unit 'd comities.
Till Tiiii'ii iif I'nrl //ti/i.' V, 77/' I'litfn/ ('oiniiii'H
iiJ'Xoiihiiniliirliuiil itiiil Diirli'iiii,' Ij. .I.'JO. --t'liy.
Where a towiisliip muiiicip dity advanced a
large Slim of money to a railway compaiiv under
the provisions of tiie eoiisoliilated .Municipal
Loan l''und iVet, and some of tli.' sloekliolders
of the company were .afterwards reli'ised from
it is siiMiciciit to aver that it ;v, is duly in.ide and [ their liability by an act of tlie legi.-ilatiu'i; passed
passed. 11 ■//■.■■»// v. M iiiiirijiiil Cuiuifil of tin- 7'i;(i.'» nearly eighteen inontlis after the works on the
o/ J'lirl llojii , 10 (,». B. 40."). road were stopiied for want of fuiid% and new
Theniiinieipalyear, under 12 Viet. c. 81, begins I '^'""r"'i^';;* were formed uiidj r that and sulise
nil the 1st of .laniiary, and ends on tin; Hist of
|)eeeiiiber, and not from the day ajipointed for
the municipal elections of one year to the same
d,ay of the next year. Milliili v. Tlir Tmi-n
I 'iiiiiiril (//' llir Tiiii-ii ijf Brmi'i'oril, 2 C. 1'. li.').
Tlic mayor of Toronto secretly contracted to
purchase, at a disciuint (from persons to whom
the iK'bcntuivs were to lie .issigueil by tlu' rail-
way com|iany, in whose favour tln'y were to be
issued, a large anionnt of the debentures of the
city, which were expected to bi; issueil under a
future by-1 iw of the city council ; and was liim-
>elf an active [larty afterwards in ]ii nriiig and
giving ell'ect to the by-law, wliie-li was sul>se-
i|Uently passed : Held, that he was a trustee for
the city of the lu'olit he derived from tlie trans-
ai-'tion. 'I'lh- ('ill/ III' Tiriiiitii v. Ilnrrs, 4 VAiy.
4S!t. Allirmcd on aiipmil, IJobinson, ('.,!., and
McLean, .J., iliss. Hun- ■< \\ Tin- cifi/ nf Tnriiiiin,
(! t'liy. I. Afterwards atiirmed on appeal to the
I'rivy Council, 11 Moore 1'. U. V. WX
X person negotiating the sale of a mnnieipal I v. Tin' liniik- of I'/i/
ilebeiitiireis not answerable that the municipality '
will pay. Where, therefore, a townslii]) niuni-
ciiiality jiassed a by-l:iw to grant a loan to a I'oad
eonijiany, and issueil debentures thereunder,
whieli were declared illegal heeause the company
had not been [iropi'rly constituted, the court,
liieri! being no ]>roof of fraud, refuscil to order
one of the directors of tlic company to refund the
amount paid to him upiui the sale of one of such
debentures. Siyallij v. MrCalliiiii, '.) Chy. 4H4.
]\Iuiiicip,al corporations are wnthin th'2 .-:,tatute3
of Mortmain. Bivwii v. J/cA'(('/, 20 (Jhy. 170.
Trustees of a municipality are cntitleiL under
the general provisimis of the act of 1874 {'M
Vict. c. 0, ().), to a eonimission on moneys pass-
ing through their hands as compensation for
their care and trouldc in the m-uiagement of the
trust. The t'ommissioiiers of the ('obourg Town
Trust, were therefore held so entitled. In re
till' Coinminmuncr^i of the Vulionnj Town Trmt, 22
Chy. 377.
pient acts of the legi.datnre, which rcle.iseil
the new corporations from the ennstrueti<ni
of the original liiu: of road, until a new lino
had bc;eli constructed, and it ap[)e:iri'd that there
wa,s no immediate ]irospect of such a result :■-
Held, reversing tli(! juilgnii.'iit ipf the court below,
that tlie maiiici|pality was not released from their
liability to the crown. Spt.igge, V. (J., diss.
Xurirli-li V, Tin: AUi,rn"i/-Oi'inr 'I, 2 K. A. 541.
A municipal corporation, after raising money
on the eredii of the iminicipil loan fund for a
]iuv[)(ne specilied in the by la\i', pissed another
by-law div'ji'ting the debentures to another pur-
pose ; anil under this si.'cond by law the deben-
tures passed into the iiaiids of the liank of
I'ppcr Canada : Held that a bill woiiM lie by
a ratepayer on bc'lialf of liimself and all other
ratepayers of the municipality, agiinst tiie bank
and the muiiiciiial cor|ioratiiir., for the restoration
of the debentures to the (corporation ; and a de-
murrer, on the ground that the attorney-general
was not a defe.idant, w.as over-ruleil. lii-DiiiUib
\itiii'/ii, V.i Chy. atl'.
&■,
MUIJDKR.
CiiiMiXAi. Law.
MUTINY ACT.
See GiiiMix.vL Lvw.
MUrUVL INSURANCE CUMPANI?:S.
See iNsriiANi'E.
NAME.
Sec Misnomer.
MUNICIPAL LOAN FUND.
The united counties of Northumberland and
Durham obtained, under the Municipal Loan
NATURALIZATION.
Sec Alien.
2511
NKCiLIOENOE.
2512
, NAVIGATION AST) NAVrfiAIiLK
\VA'i'i;i;s.
I. Navkiadlf, HivKits— ,SV»' Watkh and Wa-
TKK CotTJI.HKS.
II, FisiiiNti IV Xavii;mii,i'. ^\'\•rKlls — .SVc
Pisiir.Kv.
III. 11 viiliKl'li CiniivwiKs — .SVc llAItliiifli (^)M-
I'ANir','.
IV. NAVIIiATIoN (IK \'i;.-<.SKLS--iS'/'(' Huil'S.
V. MaISINK 1nHII!AN(T.— .SVr InS( IlANCn.
VI. (Janals -,s*.( ('a\ai.--I)ks.iai!Iuns (!avvi,
-liiiii:\c ("A\Ar.-Sr. Lawicknck ('a-
NAi,— Wku.ani) Canal,.
NAVV.
Sn AllMV, N-AVV, AND Mll.IllA.
♦-
NK KXKAT I! IK ; NO.
I. Willi' III' i.v ('\si;s (IF Ai.ni iN> — ,S'('(' Hrs-
llANli AND Wll'K.
IX. Ok ArroHNEYS — See Attohney and
*>(ll.l( ITllll.
X. Ok Hanks— .S'/r Ranks.
XI. In I'llKSKNl'MKNT (IK llll.l.S (lit NllTKS, IIU
(lIVINd Ndl'K'K (IK l)|S||ilN(ll'lt— .S'((-
HlI.I.HOKExi'lIANtiK AND I'UO.MISSIill V
NoTKS,
XII. In f'dNVK.VANCi; (IK I'l.liSdNS dltOddllS —
.s'(( ('aiii!Ii:I!s IIaii. ways and I'aii.-
WAY CciMI'ANIKS Sill I'.
XITI. Ok ('(INIHACI'dUS— .SVc CdN riiA( TdU.
XIV. Dki.av .SVc Laciik.s.
XV. NKdI.lllENT EsCAI'K— .SV( ClilMlNAI, L\\\ .
XVI. By K'uk -.S'rr 1mi:i:.
X\'!l. Ok HAiiiKiri! ('(impaniev— .SVc HAiiiidii,
('(I'M PAN IKS.
XVIII. In.miiy I'd Houses— .v. ( llditsi:.
XIX. Ok Ma'I'I'eus and SEnvANXs— .SVr Mas-
I'KH AND SeUVANT.
XX. Ih Mki.ic'ai, Men-.Vu .Mv.dhai, I'iki-
KKSSIdN.
XXT. New Ti'.iai. in Aii'dins koh — Si-c New
'I'm A I,.
X.\II. Ok Siitddi. 'riu'srEES — Si< rrri.n
Sciiddi.s.
M. h.avinp by fraud imlucud H. to .adviuice
inoiicy (111 iiinrtL'n^'c n|iiiii tlio nssnraiicc that tlio
tide «-af< cdrruct, a]tliniii,'li well aware tliat tlu^ | XXIII. (M Shi'uhk -Su Siikimkk.
nidi't'iMLjdr hail no title, a \\i'it df lU! exeat was ! wn- i. ■« o i.
is.smMla.MiMstl.iM.. .\ i.uitidM td disel.a.'.,'e tl... -'^-^'^- Hy i!aii,w ^YS - .S.. IJaii.nvays and
writ di, the ;;.-,mMd that tl... elai... was ;,nt a I ..au.way t (imvanik.s.
debt lint ii demand f'dimded cm the f.'a.iiliilei.t XW. Manaiik.mknt (ik Vi:.-;sei.s— Ac Insii;-
cond.iet (if defendant, was refused with Cd.'sts. i anck. -Ship.
• ' •' XX\ I. Or TKi.EiiiiAPit CdMPANiEs — S<('ii;i.i:-
dlSAPII.
XXVir. I!, Wateu -*<' Wateh and Watki;-
( .'(irnsEs.
NKCLIOKNCK.
I. 1'HIM IPI.KS dK I, AW.
1. Indiiuml, 2.-||-_>.
2. Coiitrilii(for;i ur Cdiuhu-'ivf, 1'AA.
IT. 1'ai;iii'.s Kntiti.ed 'm Si'E, 2318.
Til. I'auties LiAiii.E.
1. PuhUr lliiIiiM „ml 0/;/i-(j-.v. 2.")H).
2. Otlicr ('ii.-<i:i, 2.")--'l.
,'$. Md.^lcr fur Xi'i^'iiiincc of Si'rrant —
Sci' M.\srEU AND Servant.
4. JflHilrilxt/iticM — .SVc MfNICIVAI. Con-
PdiiATiONs — Watkh ami Wateu-
CdURSE.S — WVY.
IV. In ('ai!k and CoN.sTiacTioN ok Build-
ing:*, 2521.
V. In 1:)i!Ivin(j Hdiisi-.s, 2.')2-2.
VI. Pkoof ok Neglkience, 232.3.
VII. Pleadings.
1. /)(flar(i/wn'<, 2324.
2. J'ha.-<, 2525.
VIII. Damages Eecoverable.
1. Ac/'ioi>.<! hji liiqire.fcvtdlUrx of Persons
Killed hy Ni'ijUui'iia; 2526.
2. Other Canes, 252G.
XWIir. Ts Ntir Ki'.Ki'iNG liduis IN Kepaii!
S<t Way.
I. rjilNCll'I.ES (IK I.AW.
1. //( (I'l iii'nif.
Senilile, irx' Drape.', C. .1. That wlieu tin
tort alleijeii iin the iici.i-iierfdmia.iec df a joiiii
duty, if the jdi.it duty lie nut ii.'iived the jilain-
titr n.iist fail in tutu. 11 owi/.i v //i< Miiiiii'i/in/ilif
of ]V< iilirfirlh unit the Corjiuration of HamUloii.
(if. r. 101.
Where the luiavnidahle edi.seciuence df a law-
ful act ddiiu liy a persdii oii his dwii hu.d (siuii
as the creetidii df a mill-dam) is to injure hi>
neigl.lidur, an .aetiim lies for sueli injury ; Init
mit if sueh aet per se would nut lie necessarily
or pi'dlialily injurious, luit heeomes sd from a
cause not under the ediitnil of either party.
Negligence must then bo proved td render a
defendant liable. Peters v. Devinney, 6 C. 1".
389.
Declaration, that defendants had dug a ditch
in the highway near and extending across jilaiii-
tifl''8 laiKl, through ■«'hich water tiowed ; and de-
feudants so negligently constructed and con-
tinued said ditch, and permitted so much water
2512
ArrollNF.Y AND
I11.1.H 1" Notes, im
f DlSlHiN'HU — .SVr
K AM> I'lKiMMSDUV
|.-|;SI)SS (IU<1(>I>T>S
Ml.WWS AM' ItAll.-
Siiir.
,, c'liMiiAritiH.
-SVrC'itniisAt.Lwv.
,^„,> .S'.rllAlir.Oll,
_,SVr Uiiiisi:-
SKItVANTS-.V'C Ma^-
NT.
_.S',,- Mf.i.kai. ru"-
SllKlilH'.
. ,Sfpc 1!\1I.WAYS AM-
VANIK^.
Vl'.riSELS— >SVc ISSl'li-
;'OMl-ANlES— *'■ Ti:!!--
W'Air.K ASK Wati-.i:
;,; ItoVliS IN llKl'All!
S Dl- I'AW.
Ill'l'ill.
.1. 'I'liat when th'
n.TtorniiUU'o of a jiniu
,^, iioti'vovcathcplain-
'o-p./x V tin Min,h;i>'ihlu
■,,,„-0tMt of lllllllll'oi'.
„ii his own land (sm-li
iiaaui) is to injure lu>
Is fcv siK'h injiiry ; Imt
Inuhl not be necessanh
Imt l>econies so fn.ui a
,utrol of either mvty.
k)0 iivoved to rendei- ;i
[•,,• V. Dicii'ix'U, <><-•'•
tndants had dug a <UteU
I extending across p aui-
U water Howod ; and dt-
constructed and con-
ermitted so much water
s.Tin
NEUUOENf'K.
2.114
to run ill it, that it ovirtlowcil n[Min iiliiiiitiirH
laiiil, 'I'lic jiK'a set out a l>y-law iiassed l>y de
feiidaiits to riiiiHtnict a drain tliroii^'ii plaintill's
land, ,'inil an award of eoiiiiH'ns.'ition, ^^ hicli wa.-*
duly tendered, iind alle>,'e(l tliat 111 enttiiiK tile
diteli defendants unavoidalily injured uml tiirew
water oil tlii^ lot, doiiij^ no uinieeessary dainag<! :
— Held, on deiniMier, tliat the [ilea was no mi-
fcwer to till! dei'laratinii, wliieh eoin|iIaiiieil of
injury eaiised hy defendants' iaglij,;enee. Sliinr-
liiiiisi V. ( ''irpiii-iit'iiiii. iif tlu' '/'iiii'iin/iijt oj' t!iuiU-
k'Mii, Wl «,». h. .'.li.'.
'I'Ik! ))laintill's sued defendants for negligently
fluU'eriiig the (Ir.iins on their streets to lieedinn
chokfd, whi'ii iiy the waters and diiiiiane over-
tlowi'd therffroin into iilaintitl's' etlhir, and
daniiiL.'1'il tlieir ymids there. 'I'he jury found,
il|ion tile evid-'Uie set out in the ea^e, and wliieh
lii'id l>v the eiiiirt to warrant fie ir fii'diii;,',
I ihe defendants liad reasi.ii to ticHi'Vi! tlii^
iirains iiiiuhl he elmUed, and remained nci^iigfnt-
ly igniiiant of tlieir eoihlitiou ; and a vuidiet for
the iilaiiitiir-i was theiifnre sustained. There
were gratings and trapdoors in the siilewiilk
opening into the cellars of oik: I'., whose pic-
iniscs ailjdined the plaintiiVs, .■ind which the jury
found had liecn plaeed tiierc^ many ye.irs hefore
without defendants' piriiiis.sinii. .Scmlile, that
if tlie water li.nl ynt into the pl.iintitl's' premises
tli''oUj;ii the plaintills' nwii gratings, (kteiiilants
would not ha\e liiin li ihli' ; Imt that as hitwecii
them and tlie pliiiiitill. tliey were responsihle, as
they wiiiild he if any one had Ih'lii injured liy
siU'h grating.-', tlioiigh lln' iielsoii who plaeed
them tin re might hi' lial'li also. SrnKjiiic d <il.
V. 'I'Ik ('urjiurti/iiin uf th' Tuii'n n)' (ikiI/iIi, .'Ki (^).
15. :.;u.
The pl.iintitt', with a waggon and a loail of
lirieUs, was eomiiiM; down a liill on the road, hy
side of ;i ]ireei|jiee. He hail stopped to .speak
'iiiu one, wlieii on starting again the horses
'vay, and w Inn they eaine to an opening in
eiiee- or railiiii;- along the road, ne;ir the font
(■•'till! hill, they hnlted through it, .iiid down the
precipice. .\t the tri.il the iilaintill' was non-
suited, on the ground that the proximate cause
of the accident was the horses getting heyond
the )il:iilitill"s control, not the defect in the fence :
— Held, that the mere fai't of the horses running
aw.'iy and heeoniing nninaiiagcahle would not
jireveiit the iilaintilt' from recovering, unli'ss he
had hieii guilty of N\ant of reasoiiahle care or
skill, which was a ijuestion for the jury ; and the
nonsuit was thercfciri; set aside. Toms et ux. r.
('oriioration of Wliithy, 'X> (). 1!. I'-Jii, ;!7 (,).
TJ. I(K), considered the decisions in the f tate
of Maine, New JIainpshire, and .Massachusetts
reviewed, and the rule in New Hampshire
.adopted, as heing in ;iccordanee with the weight
of nvithority, ami with the views expresseil in
tliav ease. Tlie rule is, that ■» here two causes
ce" nine to jiroduce the injury, both in their
111 ture pnixinii.te, the one being the defect in
the lighway, and the other some oceurrenee for
which neither party is res]ioiisible, the corpora-
tion is liable, jirovided the injury would not
have been sustained but for the defect in the
highway. ShirwiHul v. (\>rji(ir(it!(j>i of the Citji
of Jfamillvn, 37 Q. B. 410.
In an action for collision between two sailing
vessels, owned liy the plaintifl's and defendant
respectively, it appeared that both vessels were
running to windward close-hauled; the plaiutiflfs'
158
vessel on the starboard, and the defendaiifs ves-
sel (III tlie port tack. I>el'ciiilaiit's viiswl, it waH
adinittcd, did w hat was best as sonii as tlie plain-
tills' lights Wen seen, but the colllpLiillt w.is,
that he Mlmiild hav(! seen Iheiii sooin r. This
was explained by ;illej,'iiig that there w,is a haze
on the water, which the plaint ill's' \\ itiic-sim
denied. 'I'he jury were directed that if ih^leiid-
ant used every ineaiis in his pnwer tn avnid a
collision after he saw the pl.iintill's' lij-hts ho
Would not be liable, nor if tiny belie\i(l it was
simply an accident without lugligciicc on the
defendant's part : Held, iiinlei the circiiiii-
staiiccs, not ,a niisdirection ; but the jury having
foiiiid for defendant a new trial was gr.inted, on
allidavils shewing the iliscovcry nf new evideneo
to piovt! that tingle was 110 lia/e at the time.
Ihiiriiii/ 1 1 III. V. I'altii-miii, US (,>, 11. ."il.'J.
In iirder to a party recovering damages against
one who has been giiiltv of deceit, it is iidt ne-
cessary to shew that the person [ir.'i tisiie^ it Inw
lu nelited thereby ; hut no action '.ill lie for a
false reprcseiitatiiin, unless the |ii'r' mi ncvking it
knows it to be untrue, and mikes it with tliiMU-
teiition of inducing tlie party '.0 w Imm it is made
to act upon it, and lie (lues act upon it and sus-
tains damage in C(iiise([uence. In cuder to faci-
litate an iiiteiiiling borrowi'r obtaining a In.in of
money the defendant, who w.is well kii iwii to
the iilaintiir, the pinjin-ed lender, gave a certi-
tie.ite in the follnw ing woids; "I beg to state
that I know the farm belonging to Mr. .lames
\\'heeleii, of Ihuilencll, 'iitiiate o)ni(isite the
cliiirch .and in a tliri\ing settlciiicnt. I consider
it Worth at least !?!,'_'()(» ; and have reason to be-
lieve that it has cost him a imieh larger sum,
and I am sure the investment nf ,<1()() will prove
a safe one." At this time tie' pi'npcrty was not
wiirtli more than .-<1()() or s."i(l(), and on a s.ilc,
under execution ;it the suit nf tin; iilaintill' it
realized only .s|;iO : Held, that in the ah.-^ciue
of mala tides the ilcfendant, being iin iiniiaid
valuator, was not liable to make good tlu! loss
sustaiiicd by the pl.iiiitiH' by reasnii of this erro-
iieons valuation. Spragge, C, lUss.eiiting, who
eonsidcred that the defeml.ant had been guilty of
such gross neglect in reference to the ni.atter as
rendered him liable to indcinnifv the plaintill'.
Frcirli \. .Sk-<wl,'2-iVhy. IT'.t.
2. (\)illnhiiitifii (>)• ('iiiiihiriri'.
When a waggon is left standing in the high-
way, the owner e.annot defend himself by shew-
ing that the person injured thereby was diuiik.
Ji'idI,;/ V. Liiiiih, 10 (,». r.. So-t.
In an action for negligence .against the owners
of a steamboat, tor injuries .'sustained by the
plaintitl' in eonseiiuence of one of the fenders
having broken loose from the steamboat while
leaving a wharf, and striking and injuring the
plaintitF, who was standing on tile wharf,
where it appeared that theplaintitl' had received
warning to stand clear of tlie fenders, and that
a person with ordinary care might have escaped,
the court set aside a verdict for plaintill', and
granted a new trial on payment of costs.
Mac.aulay, .1., diss. Orirrt' v. Oiildrio Sti-am-
hoat Co., 4C. P. 387.
Declaration by the plaintiff, as administratrix
of J. M., that defendant was possessed of a cer-
tain lot on the highway, on which there was a
^ ^>7^-
•i
2515
NEGLIGENCE.
2516
cellar, which lie negligently and wrongfully
sufl'ured to remain open, ivhereby said J. M.,
being an infant under twelve years, and owing
to his youth incapable of exercising and not
responsible for the want of ordinary care and
caution, and ignorant of the risk, went upon the
beams across said cellar, fell in, and was killed.
I'loa, that the said J. M. improperly .and unlaw-
fully went upon said premises, and by his own
unhiwful conduct and negligence, andnot througli
any default of defendant, slipped and fell in :
— Hclil, on (k'uniD'er to the plea, declaration
good, shewing sullieiently that the cellar w.as
upon the higliway : plea bad, as not denying the
youtii of J. M., or its alk'gcd eti'ect. Jlc/iili/i-f
V. Biu-liiiii((ii, 14 (I B. uSl.
Tlie plaintili' being in a cab, approached a
railway crossing, m licrc a train could l)e seen at
a distance of three-quarters of a mile. Tlie
driver, however, wlio knew the crossing well,
did nut look out at all until within about twenty
yards of the track, and tlieu oidy straiglit in
front of him. He did not see the train, which
was a very long one, consisting of twenty pas-
senger cai's and two engines, until the liorses'
feet were on the rails, anil it was within seventy
feet, and he then tried to cross in front of it,
but the cab was struck and overturned. The
plaiutifl'. from witliin, had seen the train ap-
proaching, and called to tlie driver to stop, but
a man sitting on tlic box with him urged him to
go on wliicii he did : — field, that the driver's
negligence was so far the cause of the aceident
that the plaintili could luit recover, notwith-
standing the defendants' neglect of their statu-
tory (il)lig;ition to have a fence and gate at tile
crossing, with an attendant to w.atch it. A non-
suit was tlierefore ordered. Xicliol/f v. T/ic
limit WcMini R. ]]'. Cn., i>7 Q. B. :1S2.
In this case also, upon substantially the same
evidence as the last, it was held, tliat the plain-
till' could ni)t leeover. The jury were directed,
that if they were satislicd the accident would not
have happened if the defendants had erected
proper fences, they sluudd lind for the plaintiil:
— Held, a misdireetion, for that if the driver by '
his negligence contributed to the aceident, so th.at
but for his want of reasonable care it wimld not I
have happened, the plaintili' could not succeed. I
I,'<i-<lrir/:y. Til, a nut Wnkni R. 11'. Co., 27 Q. !
15. 3m.
I
In an action by plaintifF against a railway i
company, in his own individual right, for injury
sustaineil from an accident, the judge at the
trial iit first directed the jury that, assuming
defendants to have been guilty of neglect in not
fencing, they must determine whether plaintili'
did or did not so farcontriliute to the aceident Ijy
his own negligence or want of ordinary care and
caution, that, but for such neL'ligeiice or want of i
care, the accident wouI<l not have hai)peiied : —
Held, that this direction was right. But after-
wards, at the reijuest of plaiiitill's eimnsel, who
did not wish the ijiicstion of contributory negli- ,
geiiee to be left to the jury, the judge, as he took ;
the same view, di<l not charge tliem to fiml
specially (,ii the ijuestion of negligence generally
as applicable to the state c;f the road, when
defendants' counsel objected ; so that in the ;
confusion which arose, the (luestion of coniniunity j
of default being understood to be withdrawn i
from the jury, they were 'led to believe that!
because defendants were in default, plaintiff must
recover. t)n this ground, therefore, the court,
Kichiirds, C <)., diss., granted a new trial with-
out costs. Wiiiiklir V. Till O'nal W'e.tlcni It. W.
Co., 18 C. P. 250.
Action against defendants as owners of a
in.acadamizeil road, which it was alleged they
allowed to get out of repair at its point of inter-
section witli another road, w hereby the plaintiff
' was thrown out of \\U waggon, and l)roke his leg,
&c. It appeared that the plaintili' was driving a
high load of empty barrels, in a lack unfastened
to the waggcui, and that on CDijiing to this spot,
where the road w/is lower on one side than the
other by IS inches, .so as to carry on the incline
of a cross ro.id, and whicli had deeper ruts on the
lower side tlian on tin; iii^her, the plaintili got
on the high side of the load to steady it ; tlio
load upset, and tjic plaintiH' was thrown down
and broke his kg. 'I'hc jury, in aiihWer to the
([Uestions sul)initted. found : .S. That it was
not prudent for the plaintili to have driven over
the sjiot in (|Uestion on the top of the load ; 4.
That the pl.untiii', sitting as lie did, cdiitributed
to the causing of the acci<lent ; ."), That it was
imiu'udent not to fasten the raek, ami the omis-
sion to do so oontriljutcd to the accident : — Held,
that the answers to the third and fourth (jues-
tions, though shewing some negligence on the
plaiiitill's j)art, did not aiiKumt to a linding of
contributory negligence, sn as to jirevcnt his re-
covery; but tiiat the answer to the lifth «jucstion
was a linding of eontrilmtory negligence, which
would liar the aution. Briu/lii/ v. lii-uirn H «/.,
;i-_>Q. B.4(i;i.
In an action against a railway company for
killing the plaintili s horses by collision at a
crossing, the weigiit of evidence went strongly
to shew that the |ilaintilt' was intoxicated, and
the accident caused by his own negligence and
bad driving. The jury, however, found in his
favour. Tlic judge, wlio tried the cause, being dis-
satislied with the verdict, and there being reason
to believe that it arose from mistaken symjiathy
on the jiart of the jury for a poor man as against
a railway v'ompany, tlic court granted a new trial
with costs to aliide the event. Midiniiiiid v.
annul Tniiilc li. )!'. Co., X\ (l B. 1!)4.
Ill an action for the death of H., caused by
falling into an excavation for a drain under tiie
sidewdk, allcgeil to l:avc bcjii negligently left
uncovered by ilcfcndants, tiie deceased having
passed over the place half an hour before, when
it was light and the state of the sidew.ilk could
be seen : — Held, that tliere was evidence of con-
tributory negligence on his part. Remarks as to
the nature of obstructions which would make
defendants liable, and the care reijuired from
persons with defective siglit, (fee. Iliiltuii v. Cm'-
jmriitiuii of III' Tiiini of Wimhiir, 34 i^. B. 487.
The plaintitf liad been employed by defendants
to cut down the trees on his own land within 100
feet of the centre of the track, under the ( '. S,
U. G. e. ()(>, s. 4, and he had felled them length-
wise with the track ami left them there. In an
action for lire caused by clefeiidants' locomotive,
which extended to plaintilf 's land : — Held, that
under the circumstances the ])laiutitf was not
guilty of contributory negligence in having left
the trees felled by him on his own land, lluliiu-^
V. The Mulliind It W. ofCanmhi, .35 Q. B. 253.
See also Jaffreij v, Turonto, ilrci), and JJnicc
K. W. Co., 24 C. P. 271.
2516
2517
NEGLIGENCE.
2518
fault, i'^ai»tiff'""^*
erefore, the court,
,1 a new trial with-
inat Wi-M'^rn 11. W.
ts as owners of a
t was alleged they
it its lioiiit of lutei--
.heiel-V the vlaUjtitt
,11, aiiilhrokehisleg,
|:u'iititV was .Iriviug a
in a rack unfastened
coming to this siiot,
on one si<le than the
cany on the incline
la.l.i'cel.errutsoiithe
• hvr, the plaintitl got
ad to steady it ; tho
ilf was tlirowu down
u-V, in aiiJ>\\<i- to tho
lid • -X 'I'hat it was
IV to have diiveu over
li^,toi. of the load; 4.
IS he di.l, eontnUnted
dent ; r.. That it was
1^ rack, and the ouiis-
, the accident:— Held,
third and fourth .lues-
nic negligence mi the
amount to a hndnig ot
s.. as to i>rcvent his re-
cr to the lifth Huestiou
,„rv negligence, which
>',•,;.//'■// v. Broini it al.,
X railway company for
„.^es by collision at a
evidence went strongly
V was intoxicated, ami
his own negligeiiee and
liowevcr, tound m ns
riedtheeanse,l)eiiigdis-
aml there hcing reason
;„„ mistaken symiiathy
,r a lioor man as against
mrt granted a new trial
event. MriUnu.jnl v.
■SA d U. »■'■*•
loath of H-, caused l.y
,n for a drain under the
,0 hejii negligently left
,s, the deceased having
If an hour hef ore, when
,0 of the sidewalk could
■re was evidence ot eon-
liispart. llemarksasto
„na which would make
the care roiuired troi.i
.lit,&e. l!»IU>nx^y«-
ir;,„/..or,34Q.B-48'-
e,iii.h.ye.ihy'i'^.f^;».'l^",^f
liis own land within 100
e track, under the < .^.
had felled them length-
I loft them there. In an
■ defendants' l''«'|""tive,
itilVs land : -Held, tha
L the vl-""tjff ^'''* Tt
^euligeuee in having lett
pht^owuland '';«-
Ironlo, Ore!/, ami Bma
t:
I
Defendants, under the authority of 12 Vict. c.
191), and 1() Vict. c. 'il, liad constructed a wharf
at Collingwood, and laid three tracks thereon
for the inu'iioses of their husiiiess. The wharf
was inucli fre(|uented, and the only means of
access to vessels lying at it. The tracks were so
close togetlier that it was dilKeult to distinguish
between the tracks and the spaces hijtween tliem.
No portion of tho wharf was fenced oil' for foot
passengers, nor was there any railing to prevent
them fiom falling into the water, ami tliey had
cither to walk upon the tracks or spaces between
them. ,\ woman carrying the dinner of her
husband, who w.is working at a vessel, was
walking down the wharf on the outside of the
western trai'k, and on meeting some iihmi coming
up, she, apparently to avoid tlieiii, stepped across
onto the centre track, not oljserving a gravel
train backing down along it. .lust as the train
was upon her, one of these men ol>servin ; her
danger, jumiicd on to tlie track and pushed her
oiF, but lor some reason hesitating for a moment
was himself struck by the train and killed. It
appeared that tliere was no look(jut man on the
last car, and tlie evidence was contradictory
as to wlieth^r the defendants were going more
than six miles an hoiii', and whether tlie whistle
Avas sounded or the bell rung. In an action by
the administratrix of tlie deceased the jury found
that defendants were guilty of negligence, and
that neither the woman nor tlie deceased was
giiilt\' of contributory ncglige'ice, and that she
would lir.ve been killed had not deceased pushed
her ol)', which was the only means of saving her:
— Held, in the Common I'leas, that the adminis-
tratrix conld not recover, for the deceased Mas
guilty of contributory negligence, his own direct
and wilful act, however praiseworthy, being the
cause of the accident. I'cr Hagarty, ( '.J. — Seni-
ble, that the v.dmaii was also guilty of contribu-
tory negligence, and could not have recovered.
Per (i Wynne, J.- -Without <leciding as to her
ligiit, the defentlants were bound to exercise a
much greater degree of caution in running their
trains in such a place than on their ordinary line
of railwi y. A nonsuit was therefore ordered.
On apiic;vl, the court being ecjually divided, the
judgment of the court below was aliirmed, witli
costs. I'er Draper, C .1. of Ai>pcal. -The de-
ceased was guilty of contributory negligence ;
and semble, tli it there was also contributory
negligence on tlie woman's part, and no eviilence
of negligence on clefeiidaiits' part. I'er Strong,
•J.- 1. 'I'lie defendants weiv guilty of negligence
as regarded the woman, but such negligence was
too indirectly the cause of the injury to deceased.
•J. The woman could not have recovered, if in-
jured, by reason of her contributory negligence,
and, if so, neither could deceased. Per Ihirton
and Patterson, .1.1. There was clearly negligence
oil defendants' part, in going at excessive speed,
and in omitting to have a look-out man in the
rear car, contrary to the rcipiirements of L'. S.
('. c. (>(), sees. 144, 14."). The jury were war-
ranted in finding that there was no contributory
negligence on the part of the woman, or of the
deceased, for his act was one which a man of
mdinary care and prudence might have done
under the circunistances. Aiiilir.ion v. 'fht
S„rll„'n, li. II'. Co., -JoC.;. V. 301.
Action for accident caused by neglect to repfvir
a sidewalk. Quwre, whether tho question of
contributory negligence, upon tho evidence sot
out in the report, was for tho judge at tho trial,
[ or should have been submitted to the jury. The
iiutliorities reviewed. Binjh' it ii.r. v. 'J'/if Cor-
' jKinttioii <>f the. 'J'ltirii of Damlan, 2,''> U. 1*. 420.
On tho second trial of the case above the
jury, in answer to (piestions submitted to them,
; found m substance, that though the defendants
I had generally performeil their ilnty as to tho
' re])air of the sidewalks, j'ct in this case tho
; sidewalk was not in a reasonably siillicit'iit state
I of repair ; and that though plaintill'by watching
j her steps, &c., might have avoideil the IkiIc, yot
that she exercised tliat due care and caution
which a jierson would onlinarily use, under tho
I eircu- D^ances : — Held, that on this tinding tho
plaintill' was entitled to recover. S. ('., 27 C. V.
i Telegr-aph jiolcs, intended for the construction
i of their line, had Iteen laid by a telcgraiih com-
pany upon the highway, encro;icliing upon tho
, travelled portion. Theiilaintill was lieiiig d''iveii
j by one V. idong the road in a sulky in the day
time ; they had passed several of the poles safely,
but both were at the moment looking at an ob-
ject oil' the road, and the sulky running against
a pole ni)set and injured tiic plaintill'. It was
, proved that the patlimaster knew of the jioles
l)eing there. The court being left to draw in-
: ferences as a jury : —Held, that tiie driver wast
guilty of eontril)utory negligence, and that tho
plaintill' therefore could not rcover, although
I the defendants would otlier« isj h ive been liable.
' Cii.flor v. 77/'' Ciir/iiiriithiii nf llif Ton'ii'^hiii of
I r.<lo-i<ln<', 3!)(^ H. 113.
The jilaintill', st:indiiig on the front iilatforin
of one of defendants' cars, which was cromled,
[ was thrown oil' by a jolt ami injured, but it did
• not appear whether, at the tini'j of the accident,
' he was luddiiig on to the iron rail on the platform
or not : — Held, that the fact of the plaintill' not
proving atlirniativcly that he was so hnlding on,
I was not a ground f<ir iKuisuit. C'lriil-^/i v. 7V/(;
I Toronto Slrcrl H. il'. Co., 23 t'. T. 3."),").
The plaintill" was lessee of premises which were
drained by a sewer made by the landlord in tho
, street, with the assent of the coi'iioration. who
, paid half the cost of constructing it. Tlie cor-
' poration used it with tlie landlonl's consent as
part of the drainage system of the city, and con-
nected it with two large drains of more than
double its capacity. In C')nse(|uence of the ac-
cidental bursting of a water [lipe near it, a greater
cpiantity of water was discharged into it than it
conld carry otl', and the i)laiiitill's cellar was
'. flooded and his goods damaged: —Held, on appe:il,
allirming the judgment of the county court, that
defeiuhuits were guilty of negligence ; and that
' the plaintill "s contributory negligence iuiiot using
1 sullicieiit exertions to save his goods, coulil at
j most only affect the (piaiitum of (laniages. C'njh-
liiit v. T/ic Corjiiiralioii <</' the Cit// of Ollmni, 1
App. II. 54.
See niiid-iiion'V. Toronto Shy,t li. 11'. Co., .38
t,). H. 172, p. 2.")!!'; Ihr/hiy. lioni. IK". I'. ,523, p.
2.-)22 ; llaiiiplinii v. W'oi!, 22 (,'. I'. 580, p. 2,V22.
See also Kaiiavays AND Railway Companies
—Way.
II. PAiiriK.s Entitlkd to Sue.
A contractor with a corporation to supply
hydrants at certain points with water for public
2519
NEGLIGENCE.
2520
uae, in the event of fires, is not liable for dam-
ages oucasioneil to the property of an individual
rate-payer of the city by tire, owing to their not
being a sullieient supply of water ; there being
no surticient privity Ijutweeu such rate-payer and
contractor, ('uniiliijliam v.Furnlun, 40. 1*. 514.
Declaration, under ('. S. U. C. c. 78, by the
administrator uf A., alleging that A. was lawfully
on the platform at a stiitioii on <lcfendants' rail-
way, and defendant;! .-io negligently managed and
drove an engine and carriages, loaded with tim-
ber, along tlic line near said station, that a piece
of timlicr projecting from said carriages struck
and killed tlie said A. I'lea, tiiat A. was a news-
boy in the employ of C'. & Co., vending papers
on defendants' trains, under an agreement V)e-
twecn C. it Co. and detemlants, which agreement
provided that dufendant.s should carry V. k Co.,
their new.slioys, and agents, on their trains, and
should not be liable tor any injury to tlie per-
sons or property of said C. & Co., their news-
boys or agents, whether occasioned by defen-
ilants' negligence or otherwise;- Held, in appeal,
allirmiiig tiie ji'.dgment of the Queen's Kciich,
Draper, C. .1., diss., pica, good, without alleging
tliat A. was a party to (jr aware of the agreement.
Alfjaiii/cr V. J'ur<iiil<i (iiid y^iiiitiiiiKj li. 11'. Co., 'A'>
y.B. 4J3;;«Q. 15. 474.
The deceased, a boy sellihg newspapers, got on
U street railway car at tiie rear end, and p;uise<l
through the car to the front platform, where the
driver was standing. He stepped to one side
behind tlie driver, and fell oU' or disappeared
from the car, there being no step on that side,
and was killed by the ear running over him. He
had said ju;it betore that he was going on some
distance further in tlie car, and the conductor at
the trial stated that he had reported the want of
a step to the owners of the railwaj', but it had
not been attended to. There was plenty of room
in the car, but it was proved that pas.seiigers
were always allowed to stand on the platform.
It was not shewn that the deceased had either
paid or lieeii asked for his fare, but it appeared
that newsboys were allowed t(j enter the ears to
sell newspapers without lieing charged : — Hehl,
in the (^Uieen's licnch, that the deceased was
lawtully on the car, and being so was entitled to
l)e carried safely, whether he was a passenger for
reward oi not. Held, also, Mor-ison, J., diss.,
that there was evidence for the Jury of negli-
gence on the part of detendants in the absence
of the steji, and no such contributory negligence
on the [part of deceased as shouhl, as a matter
of law, prevent the plaintilf's recovery. A non-
suit was theiefore sit aside. Upon ajipeal, this
tlecision was reversed, on the ground that unless
the deceased was upon tlie cars as a pas.senger, on
a contract of carriage cxi>rcss or imiilicd, and not
il8 a mere licensee or volunteer, be had no right
«)f action against the defendants for the absence
of the step, which was no breach of duty to
him, but must take tlie car as he found it ; and
tliat ujioii the evidence he must be taken to have
lieen a licensee only, lildckiiinri- v. The Toronto
atneiJi. ir. Co., a'sQ. u. i7i.*.
III. Parties Li.vble.
1. I'tth/ic Bodii'H and Oj/icern.
All action will lie against a post master for
uut sending a letter, but the plaiiititf iu lua
declaration must aver that the letter was his.
Caniphi'U V. McP/ii'r.'^on, G (). S. 34.
A postmaster is liable to the party injured for
loss caused by his negligence in the traiismissimi
of letters. I'lini/ v. Luirkx.s, 13 Q. B. 285.
Action against a harbour company, the plain-
tift's vesstd ha,ing been wrecked upon a sand
bar about ^(H) feet outside of the piers, and the
cargo lost. It aiijieared that this sand bar was
of a shifting nature, ilisappearing ami forming
at ditl'crent times, liut defemlants, some weeks
before the accident, hail begun to remove it, and
had not gone on w ith the work. The jury hav-
ing found that the loss was caused by defeiKhiiits'
negligence : — Held, that defendants were liable,
and a verdict for the value of plaintilf's cargo
was uiiheld. .McLean, .1., diss. Wih/) v. I'oi'f
Ih-Hcr Ihirhoiir Cu., !!}(,). li. (il5; aliirmed on
ai)])eal. //'. ()"J;{, and.
Per Draper, C. J. — F'>y begdnning to receive
tolls, the company must be taken to assert that
their harbour is capalile of receiving and shelter-
ing vessels of such si/e as it is littcd for. This
includes the api>roach to the harbour ; and if
afterw.irds an olistruction renders it within (
knowledge unsiifc to attempt an entrance, i /
are bound cither tt) remove the obstruction, or
to close the harlmur, by giving notice to the
j>ublic that it cannot be safely approached.
Hagarty, <f , thought the weight of evidence
strongly against the {)laiiitifl', but concurred in
the ju<lgmcnt, holding that to be no ground of
appeal. He considered, liowever, that the ver-
dict could be sustained only upon that part of
the evidence which tended to shew that defen-
dants bad undertaken to remove the b.ir in (pies-
tioii ; and that if it were a known natural
obstruction, outside of their harbour, which they
had never professed to interfere with, then they
wouhl not lie liable. .V. C. in appeal. It)*.,!. H. ij'Jt'.i
Keinivrks as to the duty of harbour companies
to keep the harbour free from obstructions,
and tlieir liability for neglect, /iirri/iiinii v.
I'rcsiildit, l)h-irloi:<, dr., uf Part Biirwill lliir-
hoiir, •_>4 ii. H. ;U.
(^tua-re, as to the li.ibility of a deputy clerk ol
the crown for damages arising from neglect in
his duties. Muorr v. Sininii.':, 1 L. J. N. S. IS.'!.
— C. L. Clianib. — J.Wilson.
The railway crossed a highway, and in the
line of the ditch formerly runiiiilg at the side of
the highway, and several feet within the limit-
of the liighw.iy, the railway company constructed
an open culvert of sipiare timber about five feet
dcei) and seven feet wide. The plaintiff, walkiiii.
along the road and crossing the railway, fell int"
this culvert and was injured ;— Hehl, that the
company were liable. (^Uicre, whether the cor-
poration were bound to rei>air this part of tiie
highway; but, held, tli.it if so, that would not
relieve the defendants, pn'ivhunhn v. 'J'/w (In"'
Western n. IC. Cj., .S3 Q. R 52.S.
Municipal corporations are responsible for
damage caused to travellers by obstructions
placed upon the highway by wroiigihiers, nt
which the corporation have or ought to have
knowledge ; and the road is out of repair when,
by the existence of such obstnictions, it is ren-
dered unsafe or inconveiiieiit for travel. Coxtnr
V. The Co rj Hind ion of tlw Toivnuhip of Uxhridiji,
31) Q. B. 113.
2520
2521
NEGLIGENCE.
2522
lie letter was his.
S. 34.
B party injurea for
II the transiinssKU
, 13 Q. B. 285.
Dinpany, the plain-
•ocko.l upon a sand
the piers, and the
t this san.l har ^ya8
L-aring au'l forimiif;
Khiut's, some weeks
III to remove it, and
,rk. Tlie jury hav-
uisedl.V'^efen.lautb
eiKhuits were hahle,
> „f plaiivtilT's cargo
diss. »'<■'''' V. {'■"•'
B. (il5 ; allirnied ou
beginning to receive
taken to assert that
•fceiving an.l shelter-
it is litted for. 11ns
the harbour; and it
en.lers it within 1
lilt an entrance, i ,•
e the obstruction, or
.riving notice to the
iT safely approached,
u weight of evidence
itift', 1-ut concurred in
;it to ho uo ground c.t
lu.wever, that the ver-
,„ly upon that part ot
0.1 to shew that .lefen-
,ei.iove the bar in <iues-
•me a known natural
,.ir harbour, winch they
terfere with, then they
. in appeal, UHi- 15. (.•.!.{
of harbour companies
„i.e fmm obstructi.ms,
neglect. B<-rr!i»""> v.
„f Purt Biirwdl Jim-
itv ..f a deputy clerk of
b...„ from n^U. ^;;
|:oII.
highway, ami in the
|vrunmugatthes!.le..t
[l feet within the Inmt:^
avc.mpanyc.nstruete.
,e"timber ab.uit live feet
. -I'he plaintitV, walkiui.
m.. the railway, fell nito
jiTred : -Hehl, that tlK
' u.ere, whether the .or
, repair this part o tlu'
;a if so, that W''«l',""^,
roh-hiiiih v. The Gn»l
\i. IV 523.
,iis are responsible for
.vellers by obstruct!.. n^
Lvav by wnmgtloers ol
luvve or ought to have
Ll IS out of repau-when,
h ol)8tnicti(m8, It 18 i-en-
Inient for travel, taf'^
As to the liability of the wrongdoer t<> the
corporation. See Tlic t'Dr/ioriilion nf the Toini-
ohip of I'lsy/ni v. Cook, '26 C. 1'. 182.
Defendants were incorporated to build a draw-
bridge over a river, an.l authorized to take tolls ;
and their charter emp.iwered tlieiii to let and
farm the tolls Tliey lease.l tlic tolls according-
ly, and the lessee covenautc.l to open and close
the drawbridge, an.l cause it to Ite projierly
attended to. Tlie plaiutitl's hor.-ies, while g.)iiig
down a bill, ran .away ami threw out the driver,
and then ran on to the bri.lge. The draw li.'id
just been tipened t.i let a vessel jiass, an.l there
being no bar or gate 1.) cl.ise the bri.lge, the
horses went .iver tlie .ipeiiiig into the water and
were drowned. Tliere had been gates there to
close the bri.lge wliile tiie draw was open, but
they had been broken about tw.i months pre-
viously, and tlie new gates which lia.l been made
were not up. Tlie jury found that gates woul.l
han' prevented the aeci.leiit, ami that there was
no negligence on the driver's part : — Held, that
the plaintill "s riglit .if action, if any, was against
tlie lessee, an.l tliat dcfeinlants were not liable.
Per \Yilson, .1. -Tlie plaintill' was entitled to
recover, though n.it against defen.lants. Per
J;ieliards, C .L, an.l Morrison, .!., he was not
entitled, for defendants woul.l have done enough
if they ha.l ha.l persons statione.l to give warn-
ing wlieu the draw was open, anil tliey were not
bound to have g ites to st.ip runaway horses.
p,-;,;, y_ xhc C'litarcKjid Bridjc Co., 35 (,>. B. 314.
2. Other Ca.ses.
In an action against four, the declaration state.l
that the defendants were proprietors of a com-
mon stage coach for carrying passengers from T.
to B. ; that they received the plaintiff as a pas-
senger for certain reward in tliat behalf ; and by
leason thereof it liecame an.l w.as the defemlants'
duty to use due care and dihgence in conveying
the plaintiff'; yet they, not regarding their duty,
did not use due diligence, .tc, but by reason of
the carelessness and improper conduct of defen-
dants, by their servant, in conveyance of the
plaintiff", he was thrown oft' of the said coach and
injured, &e. : — Held, that upon this declaration
a verdict might lie given against three of the
defendants, and for the other. Held, also, that
negligence and improper conduct were suifi-
ciently shewn by the evidence. O'uiiii v. Dkknon
,t a/., 10 Q. B. 4(il.
SiMicial action — Securities given up by judg-
ment debtor for collection— l)uty of judgment
creilitor to collect — .\ctioii thereon for negli-
gence — Pleading — Liability. See Jiall v. Mom
It (ll., 25 Q. B. 2()3, p. 1!)()0.
After the commencement of an action for injury
occasioned by negligence and improper conduct
of defendant in the management of a vessel, de-
fendent die<l : — Held, that the action could not
l.j reWved against his executor. Cameron v,
Mllloy, 22 C. P. 331.
IV. In Care and Construction of Bitildinos.
A iierson sending goods to he warehoused has
.1 right to expect that tlie building in which they
are placed shall l>e reasonably lit for the purpose,
but he has uo right to expect more than ordi-
nary and average care in that respect, and it is
only in tlie absence of such care on the ware-
houseman's jiart that he will be liable. Wilmot
V. Jiireig, 12 Q. B. ()41.
The fact of the building having fallen from a
defect in tiie fouinlati.in is not e.uiehisive evi-
ilence against the warehouseman, for that iniglit
liappen without any negligence on his part. //(.
l)efendant, the owner of a house, leased to
plaintiff a room in it, tlie only mo.le of access to
which, and to the other rooms on the same story,
was liy a certain passage, in w hieli there was an
uncovereil stovejiipi; h.ile. Tlii' plaintill' ha\iiig
agreed with defeiulant to change into an adjoin-
ing room, was in the act of moving her tiiriiitiire,
when she sli[ij)cd into this hole aiul was iniure.l :
— Held, that defendant was not lialile, for in the
absence of express contr.iet he was uiiiler no
legal obligation to keel) the premises in rep.air.
Tlie plaintiff was aware of the existence of this
hole when she took the room. (^)ua're, whether
such knowleilge, and her oiiiission to (Miver it,
was not evidence of eontrilnit'iiy ii.gligeiico
which would have prevented her recovery.
Humphrey v. iVail, 22 C. P. ,")S0.
See Kinney v. MorJiy, 2 C. P. 22(i, p. 252(!.
V. In Driving Horses.
In an .action for negligent ilriving, when the
fact of negligence goes fully to the jury and they
find for defendant, and no mis.lirection is com-
plained of, the court, unless it appear that the
evi.lence is conclusive in favour of the plaintiCT,
will not grant a new trial. Ken in/ v. ( 'oukil «/.,
4 Q. B. 2(18.
In case of damages done to a verandah on a
street by runaway horses, the (piestion of negli-
gence is for the jury, but what facts may by
them be considered is a ijucstion of law. Sitnili-
lnn>/s V. lialhijate, <J L. J. 328.— C.C.— Mac-
donald.
Action for negligence in driving a sleigli and
horses against the plaintiff". It .appeare.l that the
driver, to get better sleighing, hail turned off tlio
road to follow a tr.ack along the ditch .at one
side ; and th.at in coming up .again the sleigh up-
set, and the horses running away overtook and
ran against the plaintiff". The passengers in the
sleigh which was upset ac.piitted the driver of
any negligence ; but another witness, who was
near at the time, said that he thought, if more
care had been used in coming up, the accident
would not have hap[)eiied. The jury having
found for the plaintiff", a new ti'ial was granted.
Robinxon v. Bletcher et a/., 15 (}. B. 151).
In an action for damages occasioned by the
defendant driving against the plaintiff's sleigh,
which he had overtaken aiuI was endeavouring
to p.oss on the highway : — Held, that under sec.
2 & 3 of C. 8. U. C. c. m, it should Ijc left to
the jury to decide whether the damage was
occasioned by tlie misconduct of defemlant, or
partly by the default of the plaintiff', as he, in
this case, not being able to turn out, did not
stop as reijuired by the statute. Dt rllu v. Bain,
U C. P. 523.
Defendant's liorse being baulky, defendant
struck it with a whip to start it, his servant boy
being ou it. The horse started off", and knocked
2523
NEGLIGENCE.
2524
down and injured the itlaintiff in a lane along
■which the liorse ran. The lioy tried to stoji the
horse and ualle<l to the ])laintitf. The plaintiff was
nonsuited : — Held, that the nonsuit was right.
Jirowii V. J/i'Ul/ier, 8 L. J. N. S. Sti.— C. C —
Dennistoun.
See Ji'UlIci/ V. Luiiih, 10 (,). B. 354, p. 2514.
tor said, "pretty drunk" when he got on the
train. He went out of the car door at that sta-
tion, and next morning w<a.s found about 100
yards beyond it, aljout four feet from the rail,
with his legs cut thrcuigh at the knee-joints and
his left foot crushed, of which injurien he died
that afternoon. There was contradictory evi-
dence as to whether the train stopped long
enough at tlie .station, for whiuli there were only
two passengers, to enable persons to alight ; but
the other passeni'cr said lie got oil' leisurely, and
the person to wliom deceased had been talking
on the car said he tiiought deceaseil had left the
train, and that he told the conductor so after
the train started. The conductor and baggage-
anil that the injury comj'laincd of was thus I master also got off tlierc to see the statioii-iiia.s-
VI. Proof ok Neolioexce.
In an action ag.ainst the owners of a steanibo.it
for damage done to the plaintiffs' bridge, it ap-
peared that the steamer was found drifting
against the bridge one morning after a storm,
caused : — Held, suificieiit prima facie proof of
negligence, and tliat it lay upon defendants to
account for the accident. Tlir Cdtdrm/iii Bnihjc
Co. V. J/olcoiiih it (iL, L'l y. U. 273. .See, also,
W'ilnwt V. Jarris, 12 Q. 13. ()41.
In an action for negligence, where the evidence
is as consistent with the absence as with the
existence of negligence, the case should not be
left to the jury. Jm-h:-',,,: v. //.//'/<', 28 (^ B. 294.
Sep, also, Drirrill v. Onnul Tnuik J\'. IC. Cn.,
25 Q. B. 517; Slon-;/ v. Vcncli, 22 V. P. IW ;
lilockimtn v. Turuido i>/r<cl Hoilivai/ Co., 38 Q.
B. 172.
The defendant having charge of the plaintiff's
colt, took it to a blacksmith's shop to be shod for
the first time, and having tied it there went out.
The colt pulling back tlirew itself, and received
injuries of which it died. The plaintiff' sued
defendant for negligence in so tying the colt
instead of having it held while being shod ; and
several witnesses were of opinion that what
defendant had done was improper, while others
thought he had adopted the proper plan : — Held,
not a case in which there should Ijc a nonsuit,
on the ground that the evidence was consistent
either with tlie existence or non-existence of
negligence ; but that tlie (piestion was for the
jury. Cotton r. Wood, S C. B. X. S. 5(58, and
Jackson c. Hyde, 28 (,>. B. 21)4, distinguished.
UemU'rxon v. Jianwii, 32 (,). H. 17(i.
Action against the defendants for negligence
in the construction and management uf their
steamboat, by which sparks escaped from the
funnel at a wharf, and the plaintiffs" lumber
and mills there M-ere Vmriied. The alleged
negligence consisted in leaving the screei'-
of the steamer open ; and on the part of the
ter and returned to the cars. Tliere was no
further proof of the manner in which deceaseil
met with the accident : — Held, that tliere was
no evidence of negligeiice on defendants' i)art to
go to the jury, and a nonsuit was ordered :
Kicliai'ds, C. J., doubting, (Init not dissenting),
on the ground tliat deceused having been taken
on tiie train while intoxicated with the cuiidue-
i tor's knowledge, and the very short stoppage at
the station, afforded some evidence of negligence.
llihti V. Unat Witsttrii R. W. Co., 3() Q. B. 3(K».
VII. Pi.E.\r)iXG.s
1. Df'claraliuii.^.
lefendant,
an insurance comitany
The plaintiff sued
IS the agent of
illeging that tlie plaiiititl
had employed defendant to effect an insurance
on his property, according to the rules of the
company, but that defendant had so carelessly
and negligently effected such insurance, that a
loss by Hre having occurred the plaintiff was
prevented, by reason of such conduct of defen-
dant in effecting the i.Msur.ance, from recovering
the amount tliereof, am' was put to trouble ami
expense in bringing an action thiTcfor Defen-
dant pleaded an assignment of the policy l)y
plaintiff to one (i. before the Hre. Dn demurrer
to the plea, defendant took exceptions to the
declaration on the following grounds : 1. The
amount and duratiim of the policy are not shewn ;
2. No negligence l)y defendant is shewn; 3. That
no reason is stated why the pohcv ,vas bad, or
tint the defect was within defendant's under-
taking ; 4. JCo agency between plaintiff and
defemlant shewn, the latter being agent for thi;
v,.,uip.n.j, nor any reward or consideration aver-
red for the undertaking ; T). That the breacii is
plaintiffs evidence was received, tiiough objected i ijirger than the promise :— Held, 1. That tlie
to, that on other occasions, at different times [ pi^.v was clearly bad, fiu- plaintiff, notwithstund-
and places, the screens were open, and cinders
had escaped. The engineer and firemen on the
boat, being afterwards called for the defendants,
swore that the screens were chised, and had
never on any occasion been left open. The
learned judge ruled, at the chise of the case,
that the evidence objected to was admissible,
particularly as touching the credit of defendants'
witnesses : — Held, that such evidence was inad-
missible either to support the plaintiffs' case
when it was tendered and received, or for the
purpose for which it was afterwards admitted ;
and the jury having found for the plaintiffs, a new
trial was granted without costs. Eiliriin/x ct nl.
V. Ottawa li'n-vr Naviiiafou Co., 39 Q. B. 2()4.
The deceased was a p.asscnger in defendants'
railway for W. station, and was, as the conduc-
ing the assignnient, was the proper person to
sue ; 2. That the declaration (set out aliovu)
being for a misfeasance, did not reipiire an
allegation of a consideration or reward to su[i-
port the action ; but the ilefendant having
undertaken to do, and having done an act gra-
tuitously, was liable for his misfeasance in the
performance of his undertaking ; 3. That the
defendant, after pleading over, could not object
to the want of an allegation of the amount or
tluration of the insurance ; and lastly, that defen-
dant was entitled to judgment for the iiisiif-
liciency of the count because negligence generall}',
which was charged, is different from negligeuLC
to insure according to the rules of the coinpaiiy,
which was what defendant was emphiyed to iln.
Jolui.-<ton v. Graham, 14 C. I*. 9.
2524
leii lie got on the
ar door at that sta-
s found about lOO
fuct froiu the rail,
the kuee-joitita mi(l
ch injuries he died
contradictory evi-
traiii stopped lony
Inch there were only
arsons to alight ; hut
rot off leisurely. /\>"^
cd had been talking
leceased had left the
,c couduetor so alter
iductor awl haggage-
, see the station-nias-
cars. There was no
ci- in which deceased
Held, that there was
„u defendants' part to
onsuit was ordereil :
(hut not dissenting),
icd having been taken
ated with the conduc-
^-cry short stoppage at
i;vi.leuecotnegligenee.
ir. Co., 3i3 Q. B. •^^^■
•atiun-i.
endant, as the agent of
lle-dng that the plaiiit.tl
t to effect an insuiaiRe
iu.r to the rules ot the
luhint had so carelessly
such insurance, that a
-urred the phiintitl was
^ such conduct of deteu-
urauce, from recovering
was put to trouble and
vction th-r-for ^Defeu-
mient of the poi.cy liy
r the Kre. On deninrrer
took exceptions to tie
,wing grounds • 1. 1 1'e
the pohcy are not shewn
•ndant is shewn; 3. lliat
L, the pohcv .vasbad ..r
thin defendants under-
between plaintiff and
itter being agent tor tlie
•d or consideration aver-
-) That the breach is
.'.LHeld, 1. That the
v'ulaintift', not withstand ■
xs the proper person to
luratiou (set out ahoxe)
ee did not recpure an
vtion or reward to sup-
tho defendant having
having done an act gva-
. his misfeasance in t le
dertaking; 3. That^t'"
Hig over, could not object
«ation of the amoun oi
fe; and lastly, that deteu;
u.lgment for the msut-
vuse negligence genera },
lufferent from neghgeu.e
he rules of the conipan>',
ant was cmploye.l to do.
0.1'. y.
2525
NEGLIGENCE.
2520
Declaration : that defendant was possessed of
a wild, vicious?, and mischievous horse, .and it
was unsafe and improper to permit tlie said horse
to go or run at large on any puldic highway, yet
defendant wrongfully and negligently permitted
and suffered the horse, so being vicious, &c., to
go at large on the public liighway, wliere the
plaintiff tlien lawfully was, whereliy the )u)rse
ran at and jumped upon the plaintiff', and l)rokc
Lis leg : — HeM, bad, for knowleitge of the .ani-
mal's vicious nature was not averred ; and the
allowing it to lie at large on tlu' liighway' was not
a breach of any <luty due from defendant to plain-
tiff'. Ch<i.-<,- v. MrDomihl, LV) C. 1". I'-".).
The first count of a declaration, after averring
defendants' duty to keej) a street in repair, al-
leged that they so negligently preserved and kept
the same, and so \\roiigfully, negligently, and im-
properly permitted a waggon to lie and remain
thereon for a long time, to wit, for the sjtaee of
one moiitli, contrary to their tlnty, that tliereby
the street became and was unsafe for the liege
subjects, &c., to drive, pass, and repass, witli
their horses, carriages, itc. , and the plaintiff' law-
fully passing with his carriage ami horses, the
horses liecame friglitened by the said waggon and
ran away, and the plaintiff' was injured, Sm. The
second count alleged tliat defendants wrongfully
and negligently permitted a certain waggon to be
and remain on the said highway for a long space
of time, to wit, for tlie space of oiu; montli, so as
to obstruct tlie same, whereby tlie plaintift''s
horses, while slie was lawfully passing along the
said street in her carriage, were friglitened and
ran away, &c. : — Held, both counts bad, in not
shewing in wliat respect the corporation were
negligent, or what duty they negleete<l, for it
was not stated wliether the waggon was defen-
dant's, or that it was allowed to remain an un-
reasonable time, or that tliere was not sufticient
room left to pass, or in what way such an olijeet,
not of itself likely to frighten horses, caused the
injury. Itaiiinh v. Tlic Curjxirdtimi of the Town
of fil rat/on/, 25 C. P. 1"J3.
ri,-<t.'i
Under a plea of not guilty, in an action against
a bailiff', by the slieritf, for allowing a negligent
escape, defendant can only prove that he was
not guilty of negligence ; ho cannot give in evi-
dence any special contract of service. Ruttan
V. Slwa, 5 Q. B. 210.
In an action under 10 & 11 Vict. c. 0, by an
administratrix for negligently causing the death
of her husband, the declaration stated that the
defendant was possessed of a close, and one A.
was possessed of anotlier close adjoining defen-
dant's ; that upon defendant's close a wall was
standing, which was, to defendant's knowledge,
in a dilapidated and -langerous state, and leaning
toward the close <if A., by reason whereof it
became the duty of defendant to take reasonable
precautions to prevent the wall from falling ;
l)ut tliat he wrongfully permitteil the wall to
remain in that state, and that afterwards, by
reason of such neglect, the wall fell upon the
close of A., and in falling killed deceased, who
was then lawfully in said close. Defendant
]ileaded not guilty : — Held, that the declaration
disclosed a legal liability in defendant, and that
the evidence (M'hich is set out in the report)
warranted a verdict for the plaintiff. Seinble,
that uiuler this issue defendant was at liberty to
shew that the acci<lentwas c.auseil either wlndly
or in part by the negligence of deceased, or of
others for whom defendant was not resiionsilile,
and that a reasonable time for repairing the wall
had not elapsed before the occurrence ; and th.at
supposing the state of the wall as alk'ge<l to be
admitted in the pleadings, yet defendant might,
in evidence, shew its actual condition, .as bearing
upon the (piesti<in of negligence. KIiiikij v. Mor-
li-l/, 2 C. 1'. 22(J.
A declaration stated that the plaintifFs were in
possession of a certain warehou.-c, and tliat de-
fendant so carelessly and unskilfully dug an
excavati(m or cellar on the adjoining close that
said warehouse became injured, and the wall of
it sunk, and fell in, by reason whereof pl.iintifF's
go<ids were destroyed, &c. : -Held, that the ]ilea
of not guilty merely puts in issue the wrongful
act alleged, which in .^ubstaiice was the excava-
ting so near the plaintiff's close without using
proper precautions that thereliy the jilaintiff "s
wall fell down ; and that if <k:feiidant meant to
assert a right to excavate n\> t<i the division line
between the two closes he should have pleaded
it sjiecially. Mitdicll v. J/m-ju r, 4 C P. 147.
Semble, the plea of not guilty puts in issue the
negligence only, and not the duty .alleged.
Sircriii'!/ V. Prcxiditit, D'lnrlors, iCv., oj tlic Port
liitnvi'll llarhour Co., 17 C P. r)74.
Where, in the inducement of the declaration,
it was alleged that defendants were proprietors
of the railway, not saying at the time of the
negligence comidained of ; -Held, that under
plea of not guilty defendants iniglit shew that
at such time it was not their proiierty. \'(ut
Xaf/rr V. TIk' Biiilalo and Lake Huron Jl. 11'.
Co., 27 Q. B. nSl. "
"VIII. Damage.s Recoverable.
1. Actions hi/ Bi-prt'.'ii'iita/iri's of Permiis K'lUfil
l»j Xcyliijciicc.
In actions under 10 & 11 Vict. c. (i, (C. 8.
C. c. 78,) the court will interfere if the dam-
ages .are clearly excessive ; but it was liehl, un-
der the circumstances of this case, that £3,000
was not exhorbitant for the wiilow and three
chihlreu of deceased. Semble, that the mother
in this case could have no claim. ,S<rord v.
(,'nat WMtcnt P. W. Co., lo Q. B. G31.
Now trial granted, where the jury gave £3000,
to be distributed, £>")00 to the widow, and the
rest in unequal sums among five infant children,
the deceased having been a blacksmitli, 3.") years
of age, the patentee of an invention for an im-
proved plough, .and of careful, industrious habits,
dtc. Morli'ij V. Great Western P. IT. Co., Hi Q.
B. 504.
2. Other Ca.ie.-i.
A registrar being ajiplied to by the plaintiff for
a certihcate of the registries on a lot, gave one
in which he om.tted to mention a mortgage for
.$()00 jirior to that which the plaintiff purchased,
supposing it from the certificate to be a first in-
cumbrance. The first iimrtgagee obtained a de-
cree for sale and the plaintiff [lurchased the land
2527
NEWSPAPERS.
2528
?I1
n
4 I
at less than would satisfy the two mortgages, but
he soon afterwards sold at a consideraiile ad-
vance so tliat in the end he would receive all
that he paid for his mortgage. In an aution
against the registrar for this omission in his cer-
titicate, tlie jury gave ^500 damages :— Hehl,
that tlie damages were moderate, tlie plaintiff
having in fact, sustained loss to the full amount
of the tirat mortgage. HarrUon v. lircjii, 20
Q. B. :{24.
The [ilaintifTs had undertaken to carry a cargo
of stoiic ill their .sclioouer from 0. to 1'., and lia<l
got as far aa K., wliere she was injured by the
negligence of defendants' servants in towing her.
The stiiiie was forwarde<l liy defendants to I'.
In an action brought by the plaintill's for the
injury :-~-IIeld, tliat they could not recover as
damages any part of the freiglit, for they iniglit
adopt defendants' act, and recover the wlude
from the consignees. •Stcn-iinoii ct (tl. v. C'ulvhi
el al., 25 Q. B. 102.
In an action against a harbour coinpany,
charging that it was their duty to keep a sufK-
cieiit light upon tlie en<l of one of their piers, as
they had been in tlie hal)it of doing, to enal)le
vessels to enter with safety, and that they liad
wrongfully removed such light without giving
suHicient public notice, by reas<m of wliich the
plaintiff's vessel while endeavouring to enter the
sai<l harliour had been lost : — Held, that in a<l-
dition to the value of his vessel, the plaintiff
was entitled to recover a further sum cxjiended
by him in good faitli, and with a reasonable ex-
jiectation of success, in attempting to raise the
vessel for the purpose of repairing her. >Sweeiicij
V. The PrcxUlviit, Dinctars, .Oc, of the. Port Bur-
well Ihu-huur 17 C. P. 574.
The deceased, who came by his death from
falling into a ditch under the sidewalk, which
it was alleged that defendants had neglecteil to
cover, was insolvent at the time of his death,
and in failing health, not capable of mucli
labour, but there was evidence that he was
able to superintend his business, which was that
of an innkeejier, and went to market. Tlie jury
having given .'#4,000 aiijiortioned among the
children:— Held, that the damages were ex-
cessive. IIiilfoH V. Thf Corporation of the Town
of Wimhor, 34 Q. B. 487.
The damages (.*!2,500) being in the opinion of
the C(mrt excessive, for injuries to plaintiff's
wife, caused by defendants' neglect to protect an
embankment on the highway, a new trial was
granted on payment of costs, unless the plaintiffs
would consent to reduce the verdict to $1,250.
Tom-t et it.r. v. I'/ie Corporation of the Township
of Whitby, 35 Q. B. 195.
The authorities as to remote and proximate
causes of damage reviewed. Ih.
In an action by the plaintiff, an architect, on
the conmion counts, for services in jjreparing
plans and superintending the erection of a house
for defendant : — Held, tliat defendant was enti-
tled to deduct from the amount which the
plaintiff could otherwise claim any loss which
defendant had sustained through the plaintiff 's
negligence, in certifying too much for contrac-
tors who afterwards ^iled, in consequence of
which defendant was compelled to nave the
work done by others at a much higher price.
Irving v. Morrison, 27 C. P. 242.
In an action for injury to plaintiff's vessel
caused by collision with defendants' steamboat :
— Held, that the plaintiff was entitled to recover
the costs of repairing his vessel, and for the
permanent injury done to her, and the wages of
his crew necessarilly ke])t over during tlie re-
pairs ; but not for the sum expended in tlie hire
of another vessel to take her place, or for the
profits whicli he wotdd have earned by lier em-
ployment. Semble, tliat in an aeticm of trover
for a vessel ; tlie loss of profits may l)e recovered.
Brown v. Bmttn H uL, 35 i.}. B. 328.
An agent liad not answered for some months
urgent letters receiveil from liis principal in JMig-
land. The principal thereupon, being alarmed,
employed solicitors here to see to his interests
in tlie matter ; but the agent, though repeat(Mlly
applied to by such solicitors during nearly three
weeks, gave the solicitors no information, or even
an interview, and they consoipientlj' tiled a bill
for an account .and injunction : — Held, that the
defendant by reason of his neglect must pay the
costs up t<i the hearing, though the court was
satisfied his neglect did not proceed from any
dishonesty on his part, or any intention of with-
hohlingiiiform.ation from his principal. DoikjUus
V. WoofhUlv, 11 Chy. 37.').
NEVER INDEBTED.
See Pleadinw at Law.
NEW ASSIGNMENT.
Sec PLEADINft AT LaW— TliESPA.SS.
NEWSPAPERS.
I. ArivERTi.sEMEXTs — See Advertisement.
II. Libellous— 6Vt' Defamation.
III. Inserting Apolooies — See Defamation.
IV. Criminal Information Against — See
Defamation.
S. & C, the proprietors of a weekly newspa-
per, seeing in another paper an advertisement of
defendants' company inviting subscriptions for
stock, and stating that the share lists would
close on the 10th December, 1874, on the 3rd
November telegraphed H. , the defendants' man-
aging director, to .ask if they might insert it
in their paper, to which H. replied, " Yes. In
the meantime send terms, must be low." The
advertisement accordingly appeared in the paper
on the 5th November, and was continued till
2lBt January, 1875, with an alteration mode on
the 2(jth November by B., defendants' agent
at Toronto, being twelve insertions, for which
plaintiff claime<l at the rate of 10 cents per line,
or $32 for each insertion. On the 10th Decem-
ber, S & C. drew on defendants for $160, the
sum then due at that rate, at 30 days, which
was paid ; and this action was brought to re-
cover the balance $224. There was no express
contract to pay at such rate, but S. said that iu
answer to H. 's telegram, be wrote to him, that
their charge was 10 cents a line ; and a notice to
2528
injury to plaintiff's vessel
itli defendants' steiiniboat :
ntiff was entitled to recover
ig his vessel, and for the
ue to her, and the wages of
' ke])t over during the re-
e sum expended in tlie hire
taite her place, or for the
Id have earned by her em-
that in an action of trover
)f profits may l>e recovered.
ans\\orod for some months
I from his principal in Kng-
tlioreupon, being alarmed,
lere to see to his interests
le agent, though repeatedly
licitors during nearly three
tors no information, or even
ey conse(iucntly tiled a liill
1 junction :— Held, tiiat the
)f his neglect must pay the
ing, though tlie court was
did not proceed from any
fc, or anyintentiim of with-
'om his principal. DumikMS
370.
INDEBTED.
DiNO AT Law.
5SIGNMENT.
AT Law — Trespass.
SPAPERS.
rs — <?('? Abvertihement.
■ Defamation.
)LOGiE.s — See Defamation,
ormation Against — See
etors of a weekly newspa-
paper an advertisement of
inviting subscriptions for
hat the share lists would
ecember, 1874, ou the 3rd
.1 H. , the defendants' man-
k if they might insert it
ich H. replied, " Yes. In
rms, must be low." The
ngly appeared in the paper
r, and was continued till
ith an alteration made on
by B., defen<lant8' agent
elve insertions, for which
8 rate of 10 cents per line,
ion. On the 10th Decern-
defendants for $160, the
it rate, at 30 days, which
action was brought to re-
J4. There was no express
1 rate, but S. said that iu
am, he wrote to him, that
ints a line ; and a notice to