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 DIVISION COURT LAW, 
 
 1884. 
 

SINCLAIR'S 
 
 DIVISION COURT IM 
 
 1884, 
 
 EMBRACING THE ACTS OF 1882.1884, 
 
 TOGETHER WITH THAI PAUT OK ', HK RF.CENr STAl'l'TK FOR THE IMPROVE- 
 MENT OK THE LAW WHICH HAS APPl.ICA IION TO DIVISION COtlRT 
 l>RArTICE AND PROCEDI^K!',, WITH CRnUAI, AM* KXPLANATORV 
 NOTES ON EACH ; NOTES OK I HP- LATEST i;ANAr>IAN CASES ON DIVISION 
 COURT LAW ; OK THE MOST kK( ENT CANADIAN, ENGLISH AND IRISH 
 CASES ON THE SUHJECT OK C.ARNISIIMENT OF DEBTS ; COMPREHEN- 
 SIVE AND INSTRUCTIVE NOTES OK I.EADIN<; AMERICAN CASES ON THE 
 LAST NAMED SUHJECT; A KCl.I. DISCUSSION OK THE MODERN REMEDV 
 OF COUNTER-CLAIM AND ITS APPLICATION TO DIVISION COURT PRA( - 
 riCE ; IHE NATURE OK THE REMEDV IT AKKORDS ; TO WHAT CASES 
 IT APPLIES, AND THE COMPREHENSIVE CHARACTER OK IT ; THE RELIEK 
 WHICH THE JUDICATURE ACT GIVES AGAINST THIRD PARTIES, AND A 
 DISCUSSION OF THE SUBJECT OF COSTS IN CASES OV COUNTER-CLAIM, 
 TOGETHER WITH AN APPENDIX OK ADDITIONAL FORMS OK DIVISION 
 COURT PROCEEDINGS, AND 
 
 NEW DIVISION COURT TARIFF, 
 
 — BV— 
 
 J. S. SINCLAIR, O. C, 
 
 Jl'DGE OF THE COUNTV COUR I" AND LOCAL Jl'DGK, OH THK HIG"H 
 COURT OF JUSTICK AT HAMIL10N. 
 
 HAMILTON : 
 
 TIMES PRINTING COMPANY, 8 HUGHSON ST. 
 
 1881. 
 

 ^ 
 
 Fntprpd according to an Act of the Parliament of Canada, in the year of our Lord one 
 thousand eight hundred and eighty-four, in the office of the Minister of Agriculture, 
 by J. S. SiNci.AiK, Q. C, Judge of the County Court and Local Judge of .he High 
 Court of Justice at Hamilton. 
 
 
TO 
 
 HIS HONOR 
 
 STEPHEN JAMES JONES, 
 
 Acting Chairman of the Board of County Judges. 
 
 THIS WORK 
 
 -IS,- 
 
 WITH HIS PRRMISSION, 
 
 Respectfully Inscribed. 
 
PREFACE. 
 
 THE Statutes and parts of Statutes that have 
 been euaeted (luriu,i>^ the last five years ou 
 Division ('ourt La^\. the necessity for their col- 
 lection in a (compact form, the many cases tliat 
 have of late been decided on tlie varied subject of 
 ever increasing Division t-ourt .jurisdiction and 
 practice, the extending operation of that benefi(*ial 
 branch of Division Court Law. the ^^arnishment of 
 debts, and the many other subjects so intimately 
 bearing*- on Division Court |)ra<-tice that will be 
 feund discussed in these pa^es, is chiefly my excuse 
 Ijor writing*- this work at the present time. When 
 we consider the im|)ortant if not prominent part 
 that the Division Courts occupy in our lei^al 
 system at the present day, tlic^ ^^reater ai)pears the 
 reason for i?ivin^ what assistance we can towards 
 the better administi'ation of law in those Courts, 
 and instruction to those who are engaged in 
 its practice. The great number of cases specially 
 bearing on the law of Division Courts which have 
 of late been dec-ided, renders some easy means of 
 reference to them almost a necessity. The method 
 adopted will, I trust, be found practical and (;onve- 
 nient. 
 
 Wlierever practicable the opinions of Judges have 
 been given in their own words, and I have spared 
 
Vlll. 
 
 PREFACE. 
 
 no paiiiH to make th<^ book an coiiciHe and in'actical 
 iiH poHHible without doin^ i^o at the cxpenne of pev- 
 s[)i(Miity, or by tli«' oinif^Kion of any important points 
 on the Hubjects upon whioli I liave written. 
 
 That prominent part of Division Court praeti(5e, 
 the pii'nishment of (U'bts, lias not been overh)oked. 
 All the latest Canadian, English and Irish eases 
 on that subject that I have been able to dis<tover, 
 will be found noted in the^c patres. On the latter 
 subject I have also drawn larg^ely from the de- 
 cisions of the (Courts of that great country to the 
 south of us. 1 have found their exposition of that 
 branch of the law so mut;h in harmony with the 
 authorities in our Courts, and so full, clear and 
 instru(^tive that I have, as remarked by an eminent 
 Judge, <nted most of them without reserve or 
 excuse. The muJtiplit^ity of cases in the United 
 States as comi)ared with those in this Province, 
 affords an excellent fi(4d for selection on the 
 subject of garnishment. I have tried to give only 
 those cases decided by American Courts which 
 appeared to present points of common interest to 
 us, and to be declaratory of undoubted law here. 
 In this respect it is hoped I have not been mistaken. 
 I have to acknowledge, Avith gratitude to the editor, 
 the assistance that I have received from Chief 
 Ju8ti(*e Drake's luminous work on the subject of 
 Attachment, many of whose passages I have 
 entirely adopted. 
 
 I have also to acknowledge with thanks the 
 extreme kindness of Mr. F. P. Murray, the librar- 
 
I'llEFACK. 
 
 IX. 
 
 ian of Buffalo Law Library, in aHniHtiiiK in«^ 
 to a reference to American reportw in that lib'-nry. 
 I have also to ac^knowledfi-e the invaluable a^^isi. st- 
 ance I have re(;eived from JameH Bicknell, Jr., Ew|., 
 barriwter-at-law, Hamilton, in preparatioj of im- 
 portant partb^ if thin work. 
 
 The writer simply asks that indul|i?ence of the 
 reader which his other humble efforts in the 
 same direction have hitherto uniformly received. 
 He has tried to produce something- useful and 
 necessary, and hopes the attempt has not been un- 
 successful. 
 
 J. S. SINCLAIR. 
 
 Hamilton, Ontiirio, July, 1884. 
 
TABLE OF CONTENTS. 
 
 Table of Cases. . . . • • 
 
 Division Courts Act of 1884. . . . • 
 
 Act for Improvement of the Law, 1884. 
 Division Courts Act of 1882. . . • • 
 
 Late Canadian Cases on D. C. Law. 
 
 tt " " on Garnishcient. 
 
 " English and Irish Cases on Garnishment. 
 American Selected Cases on Garnishment. 
 Counter-claim under Jud. Act Applied to Division Jourts. 
 Nature and Effect of Counter-claim. 
 To what Cases Counter-claim Applies. 
 Relief against Third Parties under Judicature Act. 
 Costs on Counter-claim. . . • • 
 
 Additional Cases on Division Court Law. 
 
 " Statutes on D. C. Jurisdiction. 
 Appendix of Forms of D. C. Proceedings. 
 General Index. . ' • • • 
 
 Classified Index of Forms 
 
 Pages. 
 11 
 
 1— 42 
 
 43 - 74 
 
 75- 87 
 
 88—125 
 
 126—135 
 
 136—147 
 
 148—178 
 
 179—181 
 
 182— 1«0 
 
 191—200 
 
 201—209 
 
 210—215 
 
 216—229 
 
 230—231 
 
 232-245 
 
TABLE OF CASES. 
 
 A 
 
 Abrath v. North Eastern Railway 
 
 Co., 175. 
 Adams v. Avery, 159. 
 
 " V. Filer, 172. 
 " V. Gillem, 137. 
 " V. G. W. R. Co., 2.3. 
 Agra & Masterman's Bank v. 
 
 Leighton, 227. 
 Ahrens v. MoGilligat, G. T. R. 
 
 Garnishees, 19. 
 Ainsworth v. Creeke, 166. 
 Aitken v. Dunbar, 188. 
 Allan V. Liverpool, 9. 
 Allen re, 72. 
 
 " V. Morgan, 159. 
 
 " V. McQuarrie, 109. 
 Andrew v. Aitken, 196. 
 Angell V. Baddeley, 46. 
 Anglin v. Nickle, 101. 
 Anglo-Italian Bank v. "Wells, 199. 
 Anning v. Hartley, 101. 
 Archibald v. Bushey, 221, 228. 
 Ashby V. Sedgwick, 221. 
 Associated Home Co. v.Whichcord, 
 
 204. 
 Atkins T. Kinnier, 32. 
 Attenborough v. London & St. K. 
 
 Dock Co., 60. 
 Attwood V. Miller, 198, 199. 
 Austin V. Davis, 74. 
 Awberry v. McLean, 95, 197, 198. 
 
 B 
 
 Bagot V. Easton, 198, 205. 
 Bailey v. Ross, 150. 
 Baines v. Bromley, 210, 211. 
 Baker v. Wait, 216. 
 
 Bank of B. N. A. v. Eddy, 63,220. 
 
 " Montreal v. Bethune, 20. 
 v. Stattan, 45, 
 102. 
 
 " Northern Liberties v. 
 Jones, 163. 
 Bank of Ottawa v. McLaughlin, 
 
 27, 93, 94, 96, 114. 
 Bank of Ottawa Vi Smith, 88. 
 Barber v. Blaiberg, 208. 
 " V. Bingham. 100. 
 " V. Morton, 2'27. 
 Barker v. Palmer, 62, 73, 89, 97. 
 Barnard v. Graves, 165. 
 Barned's Bkg. Co. v. Reynolds, 21. 
 Barney v. Douglass, 159. 
 Bartholomew v. Rawlings, 197, 199. 
 Bartlett v. Wood, 166, 161. 
 Barton v. Smith, 173. 
 Bateman v. Farnsworth, 47. 
 Beckwith v. BuUen, 182. 
 Beddall v. Maitland, 185, 188, 
 
 189, 196. 
 Beers v. Arkansas, 154. 
 Bell and Codling re, 126. 
 Belmont v. Aynard, 60. 
 Benbow v. Low, 192. 
 Benecke v. Frost, 208. 
 Benton v. Lindell, 166. 
 Berthier Election Case, 72. 
 BoBu V. HUl, 182. 
 Beverley Corp. of v. Barlow, 81. 
 Bianca, The 192, 208. 
 Bickford, v. Howard, 72. 
 Bir^uall v. Pugin, 140. 
 Biriringham Estates Co. v. Smith 
 
 195. 
 Bishop V. Young, 156. 
 Blake v. Appleyard, 210. 
 
 " V. Hubbard, 176. 
 
 " V. WilliamB, 161. 
 Blanohard v. Cole, 170. 
 Bland v. Andrews, 88, 135, 137. 
 
 U| 
 
Xll. 
 
 TABLE OF CASES. 
 
 Blessing, The 5. 
 Bliss V. Smith, 148. 
 Bloor V. Huston. fi!(. 
 Booth V. Trail, 146 
 
 " V. Turle 221. 
 Boston Type Go. v. Mortimer, 171. 
 Boswell V. Pettigrew, 47. 
 Bower v. Hartley, 204. 
 Breading v. Siegworth, lfi3, 173. 
 Breslauer v. Barwick, 190. 
 Brigden v. Gill, 162. 
 Bright V. Marner, 203. 
 Briscoe v. Bank, 154. 
 Britain v. Bossiter, 181, 224. 
 Brockton Cor. v. Denison, 101. 
 Brodrecht v. Pick, 208. 
 Brook V. Smith, 172. 
 Brown, v. Binkley, O-i, 
 
 " V. Brown, 172. 
 
 " V. Cooking, 217. 
 
 " V. McGuffin, 126, 175. 
 
 " V. Shaw, 61. 
 
 " V. Somerville, 174. 
 
 " re Ward V. Morse, 210. 
 
 " V. Warren, 170. 
 Bryant Exp., HO. 
 Builder v. Kerr, 127. 
 Building & Loan Ass'n v. 
 
 Heimrod, 96, 100. 
 Burdett, re, 114. 
 Burgess v. Tuliy, 89. 
 Bums V. Rogers, 90, 119. 
 Burk V. Brittain, 98. 
 Burrowes, re, 228. 
 Burt V. Wallace, 90. 
 Burton v. District Township, 174. 
 Burton v. Wynne, 160. 
 Butters exp. in re Harrison, 51, 
 
 72. 
 Byrne v. Box, 124. 
 
 c 
 
 Cadwalader v. Hartley, 160. 
 Gaignett t. Oilband, 157. 
 Cameron v. Wait, 67. 
 Camp V. Clark, 161. 
 Campbell v. Barrie, 85. 
 
 " V. Prince, 72, 78. 
 Canada P. B. <& S. Society t. Forest, 
 
 78. 
 Canada S. A'y Co. v. Gebhard, 
 
 24, 88. 
 
 Canadian Securities Co. v. Prentice, 
 
 188, 199. 208. 
 Capital Fire Ins. Assn., rf, 140. 
 Oappelens v. Brown, 198. 
 Carmarthen & Cardigan R'y Co. 
 
 V. Manchester * Milford R'y 
 
 Co., 110. 
 Caroli v. Hirst, 197. 
 Carsley v. Fisken, 24. 
 Cartsbum, The, 208. 
 Cawthorne v. Cordrey, 224. 
 Central African Trading Co. t. 
 
 Grove, 20S. 
 Central Plank Road Co. v. Sam- 
 
 mons, 151. 
 Chapin v. Conn. R. R. Co., 152. 
 Chapman v. Biggs, 142. 
 V. Knight, 78. 
 Chard v. Jervia, 72, 92. 
 Charlton v. Charlton, 73, 140. 
 Chatterton v. Watney, 143. 
 ChUd V. Stenning, 187, 192, 193, 
 
 203. 
 
 Chinery Exp. in re Chinery, 147. 
 
 Chivers v. Savage, 217. 
 
 City of Mobile, The, 194. 
 
 Clapp V. Davis, 164. 
 
 Clark v. Cookson, 63. 
 
 Clarke v. McDonald, 27, 87, 93, 
 
 94, 96, 104, 111, 132, 142, 157. 
 Clarke v. Skipper, 63. 
 Clarkson v. Musgrave, 62, 71. 
 Cleneay v. Junction R. R. Co., 160. 
 Clough v. Buok, 160. 
 Coatsworth v. City of Toronto, 69. 
 Cobum V. Hartford, 166. 
 Colvin V. Rich, 169. 
 Commercial Bank v. Jarvis, 134. 
 Commissioners v. Fox, 160. 
 Compton V. Preston, 196. 
 Conners v. Birmingham, re, 93. 
 Confidence, The, 220. 
 Conybeare v. Farries, 221. 
 Cook V. Fowler, 119. 
 Cooper re Cooper v. Vesey, 48, 72. 
 Coquillard v. Hunter, 20. 
 Corporation of Dnndas v. Qilmonr, 
 
 208. 
 
 Cota V. Mishow, 171, 172. 
 Coughlin V. HoUingsworth, 214. 
 Coulson V. Ontario Fire <% Marine 
 Ins. Co., 69. 
 
 Coulson V. Spiers, 46. 
 Coulter V. Lee, 227. 
 
 A 
 
TABLE OF OASES. 
 
 XI 11. 
 
 Lombiird Deposit Bk., 
 Eapier v. 
 
 Cousins V. 
 
 52, 71. 
 Cowan's Estate in re 
 
 Wright. 131, 144. 
 Cowan V. McQuade, 93. 
 Cowles V Coe, 155. 
 Craig V. Craig, 47. 
 
 " V. Radford, 79. 
 Grain v. Gould. 169. 
 Credits Gerundeuse (Ltd.) v. Van 
 
 Weede, 60. 
 Cremetti v. Crom, 135, 146. 
 Crisp V. Churchill, 11. 
 Crowe V. Barnicot, 188. 
 Culbertson v. Cabeen, 175. 
 Gulloden v. McDowell, 61. 
 Culverhouse v. Wickens, 174. 
 Curtis V. Norris, 155. 
 
 D 
 
 Daggett V. Flannigan, 178. 
 Dalby v. Humphrey, 119. 
 Dale V. Cool, 106. 
 Danforth v. Carter, 177. 
 V. Rupert, 177. 
 Daniel v. McCarthy, 227. 
 Daniels v. Clarke, 149. 
 Dartmouth College v. Woodward, 
 
 36. 
 Dartnell & General Q. S., Prescott 
 
 & Russell, re, 87. 
 Davidson v. Douglas, 140, 
 
 " V. Gray. 210. 
 Davis V. Flagstaff Silver M. Co., 
 
 of Utah, 206. 
 Davis V. Great Eastern Ry. Co., 96. 
 
 " v. Pawlette, 169, 160. 
 Day V. Carr, 219. 
 " V. Zimmerman. 169. 
 Dear v. Sworder, 192, 203. 
 Death v. Harrison, 218. 
 Denniev. Hart, 166. 
 De St. Martin v. Davis, 92. 
 Detroit P. A- T. Co. v. Reilly. 177. 
 Dews V. Riley, 37. 
 Diefendorf v. Oliver, 163. 
 Dillon v. Cunningham, 92. 
 Dixon V. Snarr, 99, 228. 
 Dobbins v. 0. & A. R. R. Co., 155. 
 Dookstader v. Phipps, 197. 
 Dolphin V. Layton, 135, 137. 
 
 Douglas V. Atlantic M. L. Ins. Co. 
 
 20. 
 Doyle V. Gray, 171. 
 
 " V. Kaufman, 97. 
 
 " V. Lasher, 61. 
 Dresser v. Johns, 177. 
 Drinkwater v. Clarridge, re, 120. 
 Duff V. Canadian M. F. Ins. Co., 20. 
 Duignan v. Walker, 30, 31. 
 Dundas Corp. of v. Gilmour, 208. 
 Dunlop v. Higgins, 77. 
 
 E. 
 
 Eade v. Winser, 139. 
 
 Eastabi'iok v. Earle, 152. 
 
 Eastern iJsion Ry. Co. v. Coch- 
 rane, 81. 
 
 Eberts v. Brooke, re 104, 224. 
 
 Edson v. Sprout, 164. 
 
 Eisdell V. Cunningham, 140. 
 
 EUicott V. Smith, 159. 
 
 Elliot V. Capel, 135, 136, 146. 
 
 Elhs V. Mnnson, 188, 196. 
 " V. Watt, 217, 228. 
 
 Elston V. Rose, 217. 
 
 Emanuel V. Smith. 160. 
 
 English Loan Co. v. Harris. 91. 
 
 English V. Mulholland, re. 111. 
 
 Enos V. Tuttle, 160, 162. 
 
 Erskine v. Staley, 150. 
 
 Esdailti V. Yisser, 92. 
 
 Evans, v. Buck, 187, 192, 103. 
 " v. Sutton, re 116. 
 v. WiUs, 219. 
 
 Eyre v. Hughes, 190. 
 
 F. 
 
 Fair A Bell, re, 131. 
 
 Pardon's Vinegar Co., Exp. 78. 
 
 Farmers <& Mechanics Nat. Bank, 
 
 V. King, 153. 
 Farr v. Ro!,ias, 133, 232. 
 Faxon v. Mansfield, 171. 
 Federal Bank v. Harrison, 229. 
 Fee V. McIIhargey, 103, 113, 228. 
 Ferguson, v. Carman, 126. 
 Fitch v.Waite, 152, 
 
XIV. 
 
 TABLE OF CASES. 
 
 j 
 
 1 
 
 Fleming v. Dick, 97. 
 
 " V. Livingstone, 09, 228. 
 Fletcher v. Baker, 62. 
 
 V. Noble, inre 87, 92. 216. 
 Flitters v. Allfrey, 218. 
 Ford V. Taylor, (53, 219. 
 Forfar v. Climie, 90, 99, 115. 
 Forrester v. Thrasher, 177. 
 Foster v. Hough, re 104, 128. 
 Foster v. Temple, 217. 
 Fowler v. Pittsburgh. F. W. A C. 
 
 R. R. Co., 152. 
 Fox V. Reed, 171 
 Franklin re, 123. 
 
 Eraser v. Cooper Hall & Co., 196, 
 Freeman v. Cooke, 101. 
 Frey v. Wellington M. Ins. Co., 77. 
 Friendly v. Needier re, 221, 228. 
 Fuggle v. Bland, 143. 
 Fuller V. O'Brien, 156 
 Furber v. King, 225. 
 FurnesB v. Booth, 187, 203. 
 
 G 
 
 Gaffney v. Bradford, 160. 
 
 Gardiner v. Jason, 97. 
 
 Garland t. Omnium Securities Co. 
 
 re, 24, 98. 
 Gamett v. Bradley, 216. 
 Gathercole v. Smith, 194. 
 Gee y. Camming, 166. 
 Generous, The, 224. 
 Genesee M. Ins. Co., t. WeBtm'*,n, 
 
 20. 
 Georgian Bay Lumber Co. t. 
 
 Thompson, 182. 
 Ghent v. Tremain, 133. 
 Giddings v. Coleman, 166, 176. 
 Gilchrist v. Wiley, 129, 132. 
 Gilder sleeve v. Bonter, 69. 
 
 " V. McDougall, 26. 
 
 Girardy V. Richardson, 11. 
 Gladstone v. MoDonell, 47. 
 " V. Padwick, 14. 
 Glass V. Glass, 198. 
 Glassell v. Thomas, 167. 
 Goddard v. Hapgood, 156. 
 Godolphin v. Tudor, 78, 79. 
 Gordon v. Jennings, 3, 142, 146. 
 Gov't 8. F. Ins. Co. re Mugford's 
 Claim, 229. 
 
 Gov't Savings Investment Co., v. 
 
 Dempsey, 229. 
 Gracey v. Coates, 163 
 Grant v. McDonell, 126. 175. 
 
 " v. Shaw, 166. 
 Grass v. Allan re 217. 
 Gray v. Badgett, 170. 
 
 "' V. Webb, 188, 193. 
 Green v. Doughty, 161. 
 
 " V. Sevin, 196. 
 
 " V. Stevens, 61. 
 Greensill re, 137. 
 Gregory v. Higgins, 160. 
 Greer v. Powell, 160. 
 
 " V. Young, 140. 
 Guardians East London Union v. 
 
 Metropolitan R'y Co., 145. 
 Gunn V. Burgess. 124. 
 
 H 
 
 Hagle V. Dalrymple in re 24, 122. 
 Hale V. Kennedy, 48. 
 Hall V. Priohett. 146. 
 Halliman v. Price, 210. 
 Hamer v. Giles, 139, 140. 
 Hamilton v. Holcomb, 177. 
 Hamlyn v. Betteley, 62. 
 Hands v. Noble, 103. 
 Hanns v. Johnson, 109. 
 Hanvey v. Stanton, re, 133. 
 Harmon v. Birchard, 174. 
 Harper v. Scrimgeour, 92. 
 Harpham v. Shacklook, 48, 72. 
 Harrald re Wilde v. Walford, 140. 
 Harris v. Gamble, 187, 193, 203. 
 
 " V. Phoenix Ins. Co., 160. 
 
 " V. Somerset & K.R.R. Co., 
 
 164. 
 Harrison v. Trader, 177. 
 Haskell v. Haskell, 152. 
 Haskins v. St. Louis & S. E. R'y 
 
 Co., 72. 
 Hathaway v. Russell, 171. 
 Haven v. Wentworth, 151. 
 Hawes v. Waltham, 168. 
 Haworth v. British America Ass. 
 
 Co., 69. 
 Haycock's Policy re, 223. 
 Hazen v. Emerson, 166. 
 Helps V. Roblin, 101. 
 Hemming v. Blanton, 220. 
 
 lA 
 
TABLE OF CASES. 
 
 XV. 
 
 llemiuiDg V. Williams, 221. 
 HeDderson v. Cotter, 227. 
 Henny v. Scott ra, 115. 
 Hewat V. Davenport, 138. 
 Hibbard v. Clark, 171. 
 Hicks V. Faulkner, 175. 
 Hicks V. Gleason, 149. 
 Hildidge v. O'Farrell, 229. 
 Hill V. Kroft, 159. 
 Hill V. Persse. 220. 
 Hilliard v. Eiffe, 73. 
 Hillman v. Mayhew, 188, 200. 
 Hindley v. Haslam, 191. 
 Hinkle v. Currin, 166. 
 Hirsch v. Coates, 126. 
 Hitchcock V. Egerton, 152. 
 Hodge V. The Queen, 76, 94. 
 Hodgins v. U. C. Huron & Bruce, 
 
 41. 
 Hodson V. Mochi, 193. 
 Hoey V. McFarlane, in re 78. 
 Hoffman v. Fitzwilliam, 148. 
 Holland v. Wallace, re 122, 133. 
 Holloway v. York, 188. 
 Holmes v. Bemsen, 172. 
 Hopev. Graves, 133, 232. 
 Hope, The, 140. 
 Hor snail v. Bruce, 219. 
 Horwell v. London Omnibus Co. 
 
 204. 
 Hough V. Edwards, 140. 
 HouseholdF. Ins. Co. v. Orant, 77. 
 Howe, V. Ould, 160. 
 Howe Machine Co. v. Walker, 20. 
 Howell V. Metropolitan Dist. R'y 
 
 Co., 136, 137, 145. 
 Hubbard v. Union F. Ins. 
 
 re, 101. 
 Hubbard v. Williams, 160. 
 Hudson V. Tooth, 89. 
 Huff V. Mills, 160. 
 Huggons V. Tweed, 193, 199, 
 Hughes V. Monty, 164. 
 Hunter v. Vanstone, 73, 105, 218. 
 Hutchins v. Evana, 159. 
 Hutton V. Haywood, 14. 
 
 Co. 
 
 200. 
 
 I. V. K., 143. 
 
 Iglehart v. Moore, 160. 
 
 Insley v. Jones, 219. 
 
 Irvine v. Watson, 40. 
 Irving V. Askew, 218. 
 Irwin V. Corp. of Mariposa, 110, 
 
 Jackson v. Cassidy, 132, 138, 160. 
 V. Shipman, 168. 
 V. Spittal, 25. 
 
 Jacobs V. Brett, 132. 
 
 Jacomb v. Henry, 133, 232. 
 
 Jaffrey v. Toronto, Grey & Bruce 
 R'y Co.. 69. 
 
 James v. Fellowes, 166. 
 
 Jardine v. Smith, 63, 74. 
 
 Jeffcock re, 4 1. 
 
 ,Ieff Davis, The, 140. 
 
 Jenkins v. Miller, re, 99. 
 " V. Morris, 63. 
 
 Jennings v. Throgmorton, 11. 
 
 Jewel V. Stead, 29, 30. 
 
 Jewett V. Bacon, 166, 167. 
 
 .Tohann v. Bufener, 164. 
 
 Johnson v. Crook, 13. 
 
 Johnson v. Delbridge, 163. 
 V. Griffith, 150. 
 " V. Howard, 171. 
 
 Jones V. Bank of Northern Liber- 
 ties, 153. 
 
 Jones V. Parcell, 47. 
 " V. Thompson, 177. 
 " V. Tracy, 168, 
 
 Joyce V. Hart, 224. 
 
 K 
 
 Kemp V. Owen, 24. 
 Kennedy v. Brent, 149. 
 Kerby v. Lewis, 69. 
 Kero V. Powell, 81. 
 Eeyser v. Mitchell, 160. 
 Eieffer v. Ehler, 159. 
 Killsa v. Lermond, 172. 
 Kikoy V. Simkins, 182, 227. 
 King V. Farreli, 122. 
 Kinsey v. Boche, 121. 
 Kyle V, Barnes, 226. 
 
XVI. 
 
 TABLE OF CASES. 
 
 Lake v. Butler, 29, 30. 
 Lamb, txf. in re Soutbam, 85. 
 
 " V. Stone, 150. 
 Langiey v. Berry, 1G3. 
 Lapp V. Firstbrook, 182. 
 Lawrence v. Hagerman, 17">. 
 Lawson v. Lawson, 100. 
 Leader, The, 140. 
 Learning v. Woon, 131, 144. 
 Lee V. CoUier, 199. 
 Lee V. McMahon, 197. 
 Lees V. Patterson, 188. 
 Leibes v. Ward, r«, 106. 
 Leigb V. Hind, 29. 
 Lexden »t Munster Union v. 
 
 (^outbgate, 217. 
 Lindsay v. Barron, 60. 
 
 " V. Morrison, re, 93. 
 Littlefield v. Hodge, 160. 
 Lloyd V. Johnson, 11. 
 
 '• V. Wallace, 134, 143. 
 Locke V. Tibbets, 164. 
 Locket V. Child, 157. 
 Lockie & American Lumber Co. v. 
 
 Tennant, 192, 208. 
 L. & N. W. R'y Co. v. Grace, 73. 
 Loring v. Folger, 173. 
 Lowe V. Holmes, 215. 
 Ludlow V. Bingham, 159. 
 Lundy v. Carr, 227. 
 Lyford v. Demeritt, 172. 
 Lyndon v. Gorham, 168. 
 
 M 
 
 Macbeth v. Ashley, 12. 
 
 Macdonald v. Bode, 199. 
 
 Macdonald v. Carrington, 191. 
 
 Macdougall t. Patterson, 66. 
 
 Macfarlaue v. Leclarie, 224. 
 
 Maofie v. Hunter, 111. 
 
 Macnee t. Ontario Bank, 87, 94, 
 111. 
 
 Macomber v. Wright, 167. 
 
 Maine F. & M. Ins. Go. v. Weeks, 
 151. 
 
 Manchester, Sheffield & Lincoln- 
 shire R'y Co. V. Brooks, 187. 
 
 Manufacturers & Merchants M. F. 
 Ins. Co. V. Campbell, 102, 117. 
 
 Marks v. Keinberg, 156. 
 Marner v. Bright, 207, 208. 
 Marsh v. Davis, 175. 
 Martin v. Bannister, 218. 
 
 " re Hunt v. Chambers, 219. 
 V. KeUy, 21, 138. 
 Mason v. Brentini, 210, 211. 
 
 " V. Wirral Highway Board, 
 
 105, 141, 218. 
 Matheney v. Earl, 176. 
 Matheson v. Butledge, 165. 
 Matiingly v. Boyd, 172. 
 Mayer v. Farmer, 217. 
 Mead v. Creary re, 117, 131. 
 Meek v. Scoble, 97, 121. 
 Mellish V. Brantford & Qoderich 
 
 R'y Co., 132, 138. 
 Mercer v. Graves, 140. 
 Merchants Bank v. Huson, 61. 
 Mersey Steamship Co. v. Shuttle- 
 worth, 197. 
 Metropolitan Asylum District v. 
 
 HiU48, 72. 
 Milan Tramways Co., re exp. 
 
 Theys, 208. 
 Miller v. O'Banuon, 176. 
 Millet V. Coleman, 218. 
 Mims V. Parker, 166. 
 MitcheU v. Lee, 134. 
 MoUoy v. Kilby, 195. 
 Montreal, Bank of v. Bethuue, 20. 
 " " V. Stattan, 45, 
 
 102. 
 Moore v. Connecticut M. L. Ins. 
 
 Co., 74. 
 Morey v. Sheltus, 156. 
 Morgan, exp. in re Simpson, 62. 
 V. Davis, 220. 
 V. Neville, 174. 
 v. Rees, 62, 71. 
 Morris v. Cameron, 229. 
 Mostyn v. West Mostyn Coal and 
 
 Iron Co., 187, 190, 191. 
 Mouflet v. Cole, 28, 38. 
 Munday v. Asprey, 225. 
 Munsie v. McKinley, 60, 62. 
 Murphy v. Case, 69. 
 Murray v. Gibson, 110. 
 Myers v. Urich, 174. 
 
 Mc 
 
 McGlure v. Farley, 91. 
 
 ^ ''Si 
 
TABLE OF OASES. 
 
 XVI 1. 
 
 510. 
 lard, 
 
 jrich 
 
 ittle- 
 it V. 
 •xp. 
 
 3,20. 
 Ins. 
 62. 
 
 ,1 and 
 
 •■:««» 
 
 F I 
 
 McLaren v. Sudworth, 134. 
 MoLay v. Pharp, 203. 
 McCoy V. Williams, 170. 
 McCracken v. Creswick, 119, 222. 
 MoCrea v. Waterloo M. F. Ins. Co., 
 
 61,' 77. 
 McDowell V. McDowell, 61. 
 MoOiverin v. James, 25. 
 McGlinchy v. Winohel), 165. 
 McOowau V. Middleton, 189. 
 McGuire v. Pitta, 155. 
 McKay v. Mitchell. 143. 
 McKenzie v. British Linen Co., 101. 
 
 " V. Ryan, 121. 
 McLean v. McLeod r<>, 228. 
 McLeish v. Howard, 81, 106. 
 MoMeekin v. State, 155. 
 
 N 
 
 Nash V. Brophy, 165. 
 
 " V. Pease, 1.S7. 
 Nasmith v. Manning, 72. 
 Nathan v. Giles, 172. 
 Naylor v. Farrer, 199. 
 Neald v. Corkindale, 206. 
 Neil T. McMillan, It 9. 
 Neilson v. Jarvis, 97, 219. 
 Nelles V. Coleman, 176. 
 Nerlich v. Clifford, 228. 
 
 " V. Malloy, 101, 107. 
 Ness V. Rtephenson, 9. 
 Newby v. Colts P. F. A. Co.. 21. 
 Newcastle re Duke of, 14. 
 Newell V. National Pro. Bank of 
 
 England, 187. 
 Newell T. Van Praagh, 92. 
 Newlin v. Scott, 163. 
 Newman v. Anderton, 6. 
 
 " V. Manning, 126. 
 New Orleans M. &. 0. R. R. Co. 
 
 V. Long, 165. 
 Nicholson v. Crook, 177. 
 
 V. Jackson, 199. 
 Nicol V. Ewin. 143. 
 Nolen V. Crook, 156. 
 Norris v. Beazley, 208. 
 
 " V. Carrington, 217. 
 Northern Central R'y Co. v. Rider. 
 
 149. 
 Northern Liberties, Bank of, v. 
 
 Jones, 153. 
 
 Nott V. Nott. 101. 
 
 " V. Sands, 12R, 136, 146. 
 Nozon V. Holmes, 3i. 
 
 o 
 
 Oakes t. City of Halifax, 73. 
 O'Brien v. Ficht, 227. 
 " V. Irving, 229. 
 O'Donohue v. Whitty, 224. 
 
 V. Wiley, 25. 77. 
 Ohio & iU. R. W. Co., 173. 
 Oldham v. Leadbetter, 159. 
 Ontario Bank v. Harston, re, 92. 
 Ontario, Corp. of, v. Paxton. 81. 
 Ontario Glass Go. v. Swartz, 21, 
 
 113. 
 Oram v. Breary, 132. 
 Original Hartlepool Collieries Co.. 
 
 The, V. Gibb. 188. 
 Orkney v. Shanahan, 225. 
 O'Rourke v. C. M. & St. Paul R. 
 
 R. Co , 176. 
 Orser v. Mounteny, 227. 
 Ottawa, Bank of, v. McLaughlin, 
 
 27, 93, 94. 96, 114. 
 Ottawa, Bank of, v. Smith, 96. 
 Ontario, Bank of, v. Smith, 88. 
 
 Padwick v. Scott, 192. 202. 
 Page V. Yonng, 5. 
 Palmer v. Gould's Mfg. Co., 21. 
 Paraguassu Steam Tramroad Co. 
 
 re Black & Cos Case, 182. 
 Pardee v. Lloyd, 73. 
 Paris Mfg. Co. v. Walls, 47. 
 Parker v. Danforth, 157. 
 
 " V. Farr. 149. 
 V. Guillow, 157. 
 
 '• V. Kett, 78. 
 V. Parker, 149. 
 Parkinson v. Clendenning, 127. 
 Parmer v. Ballard, 174. 
 Parsons v. Queen Ins. Co. , 64. 
 Patterson v. Richmond, 134. 
 Patorni t. Campbell, 60. 
 Paul V. Johnson, 164. 
 Pearoe t. Brooks, 11. 
 
/ 
 
 XVlll. 
 
 TABLE OF GASES. 
 
 Peck V. Straltou, 151. 
 
 Pellas V. Neptune Marine Ins. Co., 
 
 199. 
 People V. Johnson, 159. 
 Perkins v. Dangerfield, 03, 74. 
 Peitingill v. Androscoggin B. H. 
 
 Co., 151, 152. 
 Pharmaceutical Society v. London 
 
 & Provinciil Supply Assn., 41. 
 Phelps V. Atkinson T. & 8. F. R. 
 
 Co.. 178. 
 Philipps V. Philipps, 73. 
 Phillips V. Austin, 135. 
 
 " V. Henson, 9. 
 Philpot V. St. George's Hospital, ao 
 Pierce v. Carlton, 159. 
 Pieroy v. Young, 195. 
 Pierpoint v. Cartwright. 52, 71. 
 Pillers fxp. in re Curtoys, 144. 
 Pine V. Kinner, 13*2, 138. 
 Pole T. Leask, 40. 
 Pollock V. Campbell, 27. 
 Poor V. Colburn, 156. 
 Porter v. Stevens. 151. 
 Potter V. Cain, 156. 
 
 '* V. Chambers, 210. 
 Poussett & General Q. S. Lambton 
 
 re, 87. 
 Powell y. fammons, 16b, 171. 
 Powell T. Williams, 63. 
 Prescott Election re, 62. 
 Prescott V. Hull, 175. 
 Prusnall v. Mabry, Lib. 
 Preston v. Wilmot, 81, 
 Prvor V. City Offices Co. 96. 
 Puff V. Hucher, 177. 
 Puffer V. Graves. 178. 
 Pybus V. Gibb, 81. 
 
 Q. 
 
 Quartz Gold Hill Mining Co. v. 
 
 Eyre, 175. 
 Quinn v. Hession, 187, 196, 199, 
 
 203. 
 
 B. 
 
 Balph V. G. W. R'y. Co. 88. 
 Randall v. Way, 153. 
 Rankin v. Simonds, 171. 
 Rattan v. Ashford, 27. 
 
 Bees V. McKeown, 6. 
 
 " V. Watts, 182 
 Reid V. McDonald, 47. 
 " V. McLeod, 157. 
 Reg V. Benson, 26, 140. 
 
 V. Berkshire iJustioes) 84. 
 
 V. Bishop of Oxford, 66. 
 
 V. Fee, 95. 
 
 V. Hanson, 60. 
 
 V. Hart, 223, 224. 
 
 V. Hodge, 76. 
 
 V. Huntingdonshire, 51. 
 
 y. Lefroy, 218. 
 
 v. Lincolnshire, 51. 
 
 V. McFarlane, 155. 
 
 v. Nicol, 51. 
 
 V. Rowland, 87. 
 
 V. Saffron Walden, 29, 30. 
 
 V. Salop, 51. 
 
 V. Surrey, 51. 
 
 V. Twiss, 217. 
 
 V. Wilkinson. 64. 
 Rennison v. Walker, 100. 
 Rhodes rxp , 140. 
 Rhodes v Liverpool Com. Inv. Co., 
 
 62, 71. 
 Richards v. Marten, 216. 
 Richardson v. Shaw, 228. 
 
 " V. Silvester, 220. 
 
 Riley v. Hirst, 154. 
 Rix v. Elliot. 157. 
 Roberts v. Death, 142, 147. 
 
 ♦• V. Drinkard, 156. 
 Robertson v. Cornwell, 228. 
 
 *' v. Mero, 225. 
 
 Robinson v. Mesbitt, 126, 176. 
 Bochereau v. Guidry, 166. 
 Bogers v. Kenny, 61. 
 Bolfe V. Maolaren, 188, 192. 
 Romann v. Brodreoht, 199, 308. 
 Rosebatch v. Parry, 73. 
 Boss re, 92. 
 Bowlett V. Lane, 161. 
 Baokmaboye v, Lnlloobhoy Mot- 
 
 tiohund, 25 
 Bussell y. Williams, 60. 
 Bymill v. Wandsworth District 
 Board, 146. 
 
 s. 
 
 Sanders v. Hughes, 176. 
 San Jerson v. Kingston Marina R'y. 
 Co., 69. 
 
TABLE OF CASES. 
 
 XIX. 
 
 Sandidge v. Oraves, 165. 
 Sandys v. Louis, 198. 
 Saner t. Bilton, 210, 211, 213. 
 Sato T. Hubbard in re, 127, 128, 
 
 181, 141. 
 Soarth rf, 177. ' 
 Sohindler v. Smith, 14<*. 
 Schneider v. Batt, 206. 
 Scott V. Hill, 160. 
 Scribuer v. McLaren, 72. 
 Beaton v. Lunney, 72. 
 Segsworth v. Meriden S. P. Co., 61. 
 Seward v. Heflin, 175. 
 Seymour v. Cooper, 16. 
 " V. Coulson, ^2. 
 Shanley v. Moore, 146. 
 Bheedy v. Second National Bank, 
 
 148. 
 Sheehan t. Great Eastern R'y 
 
 Co., 204. 
 Sheets t. Culver, 160. 
 Sheldon t. Rimons, 167. 
 Shingier v. Holt, 61. 
 Shippey v. Grey, 140. 
 Shuler v. Bryson, 160. 
 Silverthorn v. Hunter, 72. 
 Simpson v. Harry, 152. 
 Sympson v. Prothero, 140. 
 Smart & O'Beilly r<>, 228. 
 Smith T. B. C. & M. R. B., 168. 
 
 " V. Chapman, 159. 
 
 " V. Clarke, 155. 
 
 " v. Davis, 156. 
 
 " V. Lancaster, 9. 
 
 " V. Lawler, 93. 
 
 " ▼. McKav, 69. 
 
 " V. Trust <& Loan Co., 143. 
 
 " V. White, 11. 
 Solomon t. Bitton, 74. 
 Somerville t. Brown, 160. 
 South Eastern B'y Co. v. Railway 
 
 CommrB.,217. 
 South Western Loan A Discount 
 
 Co. V. Bobertson, 143. 
 Spaids V. Barrett, 175. 
 Speak T. Einsey, lo7. 
 Speller v. Bristol Steam Nav. Co., 
 
 206. 
 Spencer v. Conley, 128. 
 Spruill V. Trader, 173. 
 Staley t Bedwell, 61. 
 Stalworth t. Inns, 101. 
 
 Stanhope Silkstone Collieries Go. 
 re, 140. 
 
 Staples V. Staples, 164. 
 
 Staples V. Young, 210. 
 
 Star Kidney Pad Co. v. Greenwood, 
 
 227. 
 Stebbins v. Fitch. 172. 
 Stephens v. Laplante, 123. 
 Stevens v. Phelips, 143. 
 
 V. Pugh. 163, 
 Stewart v. Forsyth, 89, 90. 
 
 " V. West, 160. 
 Still V. Booth, 217. 
 Stimpsin v. Maiden, 174. 
 St. Johnv. Rykert, 119. 
 St. Michael's College t. Merriok, 
 
 129. 
 StoRdale v. Wilson re, 121. 
 Stokes V. Grissell. 29. 
 Stone V. Dean, 157. 
 Stooke V. Taylor, 184, 196. 
 Storey v. Waddle, 194. 
 Street v. Crump. 197. 
 
 " V. Gover, 191. 
 Strong's Executor v. Bass, 164. 
 Strntton v. Johnson, 37. 
 Sturtevant v. Robinson, 161 , 166. 
 Sugg v. Silber, 63. 
 Summers <>xp., 60. 
 Sunderland Local Marine Board 
 
 V. Franklin, 135, 136. 
 Supervisors, The, v. United States, 
 
 67. 
 Sutherland v. Black, 69. 
 Sutton's Trusts re, 223. 
 Swansea Shipping Co. v. Duncan, 
 
 204. 207, 208. 
 Swisher v. Fitch, 161. 
 Sykes v. B. & 0. B'y Co., 174. 
 
 Tapp V. Jones, 134. 
 
 Tate V, Corp of Toronto. 150. 
 
 Tennant v. Rawlings, 61, 62. 
 
 Thayer v. Partridge, 169. 
 •' V. Sherman, 154. 
 
 Thomas v. Hopper, 170. 
 
 Thompson v. Allen, 1G3. 
 " V. Allison. 172, 
 •• V. Taylor, 157. 
 V. Ward. 7, 8. 
 " . y. Woodfine, 200. 
 
 Toft V. Rayner, 217. 
 
 Toke V. Andrews, 196. 
 
( 
 
 XX. 
 
 TABLE OF OASES. 
 
 Toms V. Luokett, 9. 
 
 Torrance v. LivingBtone, 226. 
 
 Travis v. Tartt, 157. 
 
 Treleven v. Bray, 203, 208. 
 
 Tabby v. Stanhope, 37. 
 
 Turnbnll v. Robertson, 131, 141, 
 
 173. 
 Turner txp. 227. 
 Turner V. Hednesford Oas Co., 187. 
 
 203. 
 Turner v. Imperial Bank re, 45. 
 Tyler v. Winslow, 1C3. 
 
 u 
 
 Union Fire Ins. Co. v. Fitsimmons, 
 
 77, 
 Union India Bubber Co. v. Hib- 
 
 bard, 20. 
 United States v. Robertson, loO. 
 
 " " V. Vaughan, 160. 
 
 VanEvery v. Ross, 61. 
 
 Vavasseur v. Erupp, 190. 
 
 Victor V. Hartford Ins. Co., 156. 
 
 Victoria Mutual F. Ins. Co. v. 
 Bethune, 129. 
 
 Victoria M. F. Ins. Co. v. Davidson, 
 81, 110. 
 
 Victoria M. F. Ins. Co., v. Thomp- 
 son, 124. 
 
 Vidal V. Ford, 69. 
 
 Vine txf. in re Wilson, 177. 
 
 w. 
 
 Wnde V. Dowling, 101. 
 Wakefield v. Martin, 166. 
 Waloott V. Keith, 149. 
 Walker v. Rooke, 142, 167. 
 Wallace v. McConnell, 172. 
 Wallisv. Smith, 147. 
 Ward T. Raw, 220. 
 
 Warder v. Baker, 176. 
 
 Wardrope v. Canadian Pacific R'y 
 
 Co.. 134. 148. 
 Warner V Riddiford, 73. 
 " V. Twiniryj, 203. 
 Washburn v. N. T.& V. M. Co.160. 
 Washington Co. M. Ins. Co., v. 
 
 Henderson, 20. 
 Watkins v. Cason, 165. 
 
 *' V. Vince, 39. 
 Watson V. Henderson, 47. 
 Watt V. Van Every. 24. 
 Watts V. Howell, 61. 
 Wavell T. National Pro. Bank of 
 
 England, 199. 
 Webb V. Holt, 178. 
 
 " V. Stenton, 6, 129, 132, 134 
 
 137, 143. 
 Webster v. Gage, 151. 
 Webster v Overseers of Ashton- 
 
 under-Lyne. 14. 
 Webster v. Steele, 166. 
 Welland Corp. of v. Brown, 110. 
 Wellerv. Wallace, 27. 
 Wells V. Mace, 170. 
 West V Piatt, 164. ' 
 Westheadv. Riley, 148. 
 Weston V. Thomas, 97. 
 Westover v. Turner, G. T, B. 
 
 Garnishees, 19. 
 Wetherill v. Flanasan, 159. 
 Wetter v. Rucker, 174. 
 Wheeler v. Emerson, 169. 
 Whimsell V. Giffard, 14. 
 Whistler v. Hancnck, 62. 
 White V. Elliott, 177. 
 
 " V. Richardson, 161. 
 
 " V. White, 150. 
 White Sewing Machine Co. v. 
 
 Belfry, 225. 
 Whitehead v. Fnthergill, 27. 
 Whitehouse v. Heinmant, 64. 
 Whittaker v. Whittaker, 144. 
 Whitton exp. in re Greaves, 77. 
 Widmeyer v. MoMahon in re, 90, 
 
 107, 119, 222. 
 Wilberforco v. Sowton, 220. 
 Wilcnoks V. Howell. 176. 
 Wilder v. Weatherhead, 160, 164. 
 Willard v. Butler 156. 
 
 •' V. Sturtevant, 152. 
 Williams exp. re Jonep, 97. 
 
 " V. Wright, 185. 
 Williamson v. Gayle, 167. 
 Wilhelmi v. Haffner, 169. 
 
TABLE OF OASES. 
 
 XXI. 
 
 yy 
 
 60. 
 V. 
 
 of 
 184 
 
 Willing V. Elliot re, 93, 96. 
 
 Wills V. Noyes, 176. 
 
 Wilson V. iEtna Life Ass. Co., 20, 
 
 " V. Dundfts. 144. 
 
 " V McCarthy, 126. 137. 
 
 " V. McOuire re, 108. 
 Wiltsie V. Ward. 90. 99, 113, 116. 
 Winfiald v. Kean. 175. 
 Winterfield v. Bradnum, 188, 196, 
 
 215. 
 Wolverhampton A Staffordshire 
 
 Banking Co. v. Bond. 226. 
 Wood T. Buxton, 156. 
 
 " V. Dunn, 173. 
 Woods V. Dennett, 29. 
 Wrigley v. Geyer, 166, 161. 
 Wye Valley R'y Co. v. Hawes, 192, 
 
 206. 
 
 Yalden exp. in re Austin, 140. 
 Yarborougn v. Thompson, 160. 
 Young exp. in re Eitohin, 110. 
 V. Biggon, 61,77. 
 V. Kitohin, 191. 
 " V. Morden re, 222. 
 " V. Bohuler, 40. 
 
 Zaritz v. Mann, 89. 
 Zobrab ▼. Smith, 217. 
 
 ion- 
 
 ). 
 
 B. 
 
 7. 
 f,90, 
 
 ,164. 
 

AX ACT 
 
 TO AMEND THE DIVISION COURTS ACT. 
 
 [47 Victojia, Chapter 0, 0?itario.] 
 
 UER MAJESTY, by and with the 
 advice and consent of the Legis- 
 lative Asseniblv of the Province of 
 Ontario, enacts as lollows: 
 
 1. Section one hnndred andj'fan^"^^ 
 twentv-six (a) of the Division"""'"' 
 Conrts Act is heiebv amended 
 by adding thereto the following- 
 words : 
 
 ^H)r in any case (b) where the 
 debt (c) has been contracted for 
 board (d) or lodging (e), or where, 
 in the opinion of the Judge, the 
 said exemption of twenty-five 
 
Mil 
 
 2 
 
 DIVISION COUItTS ACT. 1884. 
 
 [Sec. 1. 
 
 ! I 
 
 I ' 
 
 dollars is not actually necessary 
 for the support and maintenance 
 of the debtor's family." 
 
 (a) In order to i)roi)erly underwtand the 126tli seo 
 tioii of the Diviyion Courty Ac-t, it mnnt be read in 
 connection with the next prec^edint? se(;tion. The 
 125th section iw in these words: "No debt due or 
 accruing to a nie(-hani(% workman, laborer, servant, 
 (•lerk or eni|)loyee, for or in respec-t of his wages or 
 salary, shall be liable to seizure or attachment 
 under this A(;t, unless suc'h debt ex(;eeds the sum of 
 twenty-five dollars, and then only to the extent of 
 such excess/' 
 
 The 126tli section will therefore, with the amend- 
 ment introduced by this Statute, read as follows : 
 
 " Nothing in the next |)receding section contained 
 shall effect or im[)air the right or remedies of any 
 creditor whose debt has been (^ontra(;ted before the 
 first day of Oc^tober, 1874, or, in any c^ase where the 
 debt has been contra(*ted for board or lodging, or 
 where in the opinion of the Judge, the said exemp- 
 tion of twenty-five dollars is not actually ne(-essary 
 for the support and maintenance of the debtor's 
 family." 
 
 An enactment somewhat corresiKmding to the 
 TiBtli section of our Act is to be found in the Im- 
 I)erial Statute of 88 and 84 Victoria, Chapter 80. It 
 is entitled " An Act to abolish Attachment of 
 Wages." It re(ntes that mucjli inconvenience has 
 
Sec. 1.1 
 
 DIVISION COURTS ACT, 1884. 
 
 8 
 
 arisen l).v the attachment of wa^es to satisfy jnds:- 
 nients recovered in soiue of the conrts of tlie realm, 
 and that it is expedient to prevent the attach- 
 ment of \va,i?es to satisfy .indgments re(H)vered in 
 any ('onrt of Kec^n'd or inferior Conrt. 
 
 The enacting? (^lanse is in these words: "That 
 after the passing of this Act no order for the 
 atta(^hment of the vva^-es of any servant, laborer or 
 workman shall be made by the JridRe of any Conrt 
 of Re(5ord or inferior Conrt." 
 
 It will be observed that the reason for the Im- 
 perial Statnte was that of Gonvenience, but our Act 
 was passed in the interest of and for the i)rotectioii 
 of the debtor and his family. The former Statnte 
 only affe(5ts the " mtf/es " of any " servant, laborer or 
 workman," bnt onr Act protects the ''wages or 
 salary" of any "mechanic, workman, laborer, ser- 
 vant, clerk or em|)loyee" to the extent of •^25, and 
 exempts the same from garnishment. Under the 
 English A(^t it was held in Gordon v. Jennings, 9 
 Q.B. D.45, that the salary of a secretary to a company 
 amounting to £200 a year, was not " wages " of a 
 "servant" within the meaning of the section just 
 quoted, and therefore was not exempted from at- 
 tachment proceedings. But that case or cases of a 
 similar nature could not apply here, for the lan- 
 guage of our Statute is much wider and its scope and 
 object nuu'h more extensive than the ])rovisions of 
 the English Act. A case can S(5ar(5ely be conceived 
 where the relation of employer and employee exists^ 
 to which our Statute w^ould not have application. 
 Indeed, the meaning attached to the word "em- 
 
{' 
 
 DIVISION COURTS ACT, 18R4. 
 
 [Sec. 1. 
 
 f '■ 
 
 ployee" (independently of tlie other c^laswew of per- 
 sons mentioned in tlie section), shows how extensive 
 its in'ovisions are. Worcester defines tlie meaning 
 of tlie word to be " one who is employed ; an official, 
 a clerk, a servant." It may therefore be taken for 
 ft-ranted as a K<^neral rule in determining who is 
 within the benefit conferred by the A(;t, that all 
 persons who are in the service or emi)loyment of 
 any other |)ers()n or (X)rporation, in any (rapacity 
 whatever, are entitled to the exem|)tion conferred 
 by the 12r)tli section. Bnt if svk^Ii relation did not 
 exist and work was df)ne under contract, then this 
 exemption clanse would have no ap|)li(5ati()n. Until 
 the passing of this late Act wliicrh we are now dis- 
 (russin^, the debtor was entitled to the exemption 
 absolutely, but now if the debt was (contracted " for 
 board or lodft^iiiK," or if the jud^e is of opinion that 
 the exemi)ti()n is not actually nec'essary for the sup- 
 port and maintenan(re of the debtor's family, then 
 the exemption is not to be allowed. 
 
 It is not for us to dis(-uss the |)ropriety of this 
 enactment or the consistt^ncy of its provisions. 
 Why a debt for board and lod^int*^ should stand on 
 higher grounds than that of the landlord whose 
 house protected the debtor and his family, or the 
 butcher, baker and grocer who supplied |)r()visi( ,is 
 which were the sustenance of life, is somewhat 
 difficult to see. 
 
 {h) (iKNEKAL AIM'MCATIOX. 
 
 It will be observed that the exception applies 
 to ''any c-ase" in which the (rlaim is for board w 
 hedging and is in the alternative, so that a claim 
 
Seo. 1.] 
 
 DIVISION COURTS ACT, 1884. 
 
 for board alone or lod^^in^ separately from board 
 would be within it. It is submitted tliat the words 
 "anyctase" may lU'oix'rly be read '"every case,'' so 
 as to apply to every del)t whatever, contracted 
 either for board or lod^iuK : Page v. Yoiin{f, L. R. 
 U) E(|. 501. The Blemu(/. •$ P. O. '^^. 
 
 {C) THE J)EHT. 
 
 The "(h^bt" here spoken of refers of course to 
 that which is owin^- by the |)rimary debtor to the 
 primary creditor, and it must ])e on(^ for which an 
 action could be maintained against tlie debtor at 
 the time of the ^garnishment. It must be due and 
 owini?. The (;laim for board and lodging must be 
 a "debt" according to its proper legal sigiiific^ation, 
 as to which see Sincjlair's D. C. Act, |)age 147 and 
 following pages; Wehh v. Stenton.W Q.B.I). 518; 
 Drake on Attachment, section 550. The primary 
 creditor, if a "boarding-house keeper" or "lodging- 
 house keeper," would have' a right to invoke the 
 other remedies (nniferred by Chapter 147 of the 
 Revised Statutes of Ontario. The 2nd section of 
 that Act is in these words : 
 
 "Every inn-keeper, boarding-house keeper and 
 lodging-house keej)er shall have a lien on the 
 baggage and pr()|)erty of Ids guest, boarder or 
 lodger, for the value or price of any food or a(x;om- 
 modation furnished to such guest, boarder or lodger, 
 and, in addition to all other remedies i)rovided by 
 law, shall have the right, in case the same remains 
 unpaid for three months, to sell by public auction 
 the baggage and proi)erty of such guest, boarder or 
 
6 
 
 niVlSION COURTS ACT, 1884. 
 
 [Sec. 1. 
 
 lodger, on Riving one week's notiee l).v advertise- 
 ment in a newHpaper |)ubliHlied in the Municipality 
 in whic'li sneli inn, boarding-house, or h)(lKinft:-h()Use 
 is situate ; or in (-ase there is no newspaper published 
 in HU(-h Municipality, in a newspaper published 
 nearest to such inn boarding-house, or lod^injt*-- 
 houso, of such intended sale, stating the name of 
 the guest, boarder or lodger, the amount of his 
 indebtedness, a des(U"iption of the baggage or other 
 property to be sold, the time and place of sale, and 
 the name of the auctioneer ; and after such sale 
 su(5li inn-keeper, boarding-house keeper, or lodging- 
 house keeper may apply the proceeds of such sale 
 in payment of the amount due to him, and the 
 (X)sts of such advertising and sale, and shall i)ay 
 over the surplus (if any) to the person entitled 
 thereto, on appli(;ation being made by him therefor." 
 
 By Chapter 16, of 48 Vi(;toria, of the Statutes of 
 Ontario, protec;tion is given to the goods of lodgers 
 and boarders against a distress for rent due to a 
 superior landlord. Formerly such goods were not 
 
 ': M)t from distress from rent : Newman v. AwUr- 
 urn, ^I. R. 227; Itee% v. McKeown, 7 Ai)p. R. 521. 
 Wo 'J:-!rs L. and T., Chap. X. 
 
 {(l) BOAIU). 
 
 We have to en(]|uire what is the meaning of the 
 word " board " as used in the section under con- 
 sideration. Wor(5ester defines it to be " food ; diet ; 
 provision." Again, he gives another definiti(m, " the 
 customary meals obtained for a stipulated sum at 
 the table of another : as, he pays a high price for his 
 
Sec. 1.] 
 
 DIVISION COURTS ACT, 1884. 
 
 hoards T\w, verb " to board " iw defined by the same 
 author aw, "to live in a house at a certain rate for 
 eating- ; to be furnished with food or meals for a 
 stipulated sum." It would not be necessary to (con- 
 stitute a debt for board under this section that there 
 sliouki be any sum stijmlated for board. A person 
 boardiui? with another woidd im|)liedly be respon- 
 sible to the latter for what su(*h board mip-ht reason- 
 ably be worth. The law would imply a contract to 
 pay for it unless it apj)eared that it was i^iven 
 gratuitously and not with the intention of being 
 (charged for. In the latter (^ase the food sui)plied 
 would be in the nature of a gift. It is not necessary 
 to consider in this disinission whether every person 
 who supplies board to another would be a " board- 
 ing-house keeper" within the meaning of Chapter 
 147 of the Revised Statutes of Ontario, for the simple 
 reason that the clause of the Statute under discus- 
 sion does not declare that the board must be sup- 
 plied by a boarding-house keeper to do away with 
 the exemption. If the contract for board arose 
 between any |)ersons it would be within this 
 amendment. 
 
 {e) LODGINO. 
 
 It is not necessary that the lodging should be 
 su])plied by one. who holds himself out as a lodging- 
 house keeper to entitle the su|)p,licr to compensa- 
 tion. Any i)erson who lodges another for reward 
 would be within this amended section; so also 
 would his assignee of the debt. The latest defini- 
 tion to be found in judicial detdsion of a lodger is 
 that given by Bovill C. J. in the cease of Thompson 
 
If 
 
 i 
 I 
 
 i 
 
 8 
 
 DIVISION COURTS ACT, 1884. 
 
 [Sec. 1 
 
 V. Wai'd, L. R. <i C. P., at pa^^H m) and im. That 
 learned Jud^e says: " Generally s|)eakin^'', a lodger 
 is a i)erH()n whowe ()c(-ii|)atl()n in of part of a lioiine, 
 and wnbordinate to and in Honie de^-ree nnder the 
 (•ontrol of a landlord or hiw reprenentative, who 
 either resides in or retains the possession of or a 
 dominion over the lionse generally, or over the 
 outer door, and nnder suc-h (nnnmistanees as that, 
 the possession of any partic'ular part of the house 
 held by the lodger does not prevent the house 
 ,M-enerally beint^- in the possession of the landlord. 
 
 " Where a landlord resides in part of a house, and 
 there is an outer door from the street, and lie by 
 himself or his servants has the control of this outer 
 door, and undertakes the <^are or control of ro(mis 
 let to other persons and the access to them, and 
 those rooms themselves have not anything' in the 
 nature of an outer door, and are not structurally 
 severed from the rest of the hous(\ there (-ould be 
 little hesitation in sayiui* lh.it an (xcnipier of those 
 rooms, bein^ part of the house, is only a lodger. On 
 the other hand, if there be no real outer door to the 
 street, and neither the landlord nor his servants, 
 nor any one representing him, oc(nipies any part of 
 the premises, or exerc-ises any <-ontrol over any part 
 of them, and the rooms o(H-u|)ied by another person 
 are structurally severed from the rest of the house, 
 and have an outer door to the general landing- or 
 staircase, and no one but such tenant lias or exer- 
 cises any c^are or (control over the rooms or that 
 outer door, as a K^neral proi)ositioii, the person so 
 0(;cupying those rocmis could not i)ro[)erly be said 
 
Skc. 1.1 
 
 DIVISION COFRTS ACT, 1884. 
 
 9 
 
 to be a loflK^'i". It is ahvayn iinportaiit, in deter- 
 ininiiiR wiietlun" a man in a Induer, to nee whether 
 the owner of the house retains liis charac'ter of 
 master of the house, and whether he occupies a part 
 of it by himself or his servants, and at the same 
 time retains the ^^eneral control and dominion over 
 the whole house; and this he may do, though he do 
 not personally reside on the premises. 
 
 " These views are borne out by the judgment of 
 Maule, J., in Totm v. LucketU 5 C. B. 28 ; 17 L. J. 
 C. P. 27, \vhi(;h was (confirmed by my brother 
 Willes in the rec^ent case of Smith v. Lancaster, 
 Law Rep. 5 C. P. 251. They are also in acjcordam^e 
 with many authorities where the ocunipation by a 
 lodger of a part of a house or premises had been 
 held not to deprive the landlord of the general 
 possession of the whole house." 
 
 Reference may also be made to the later cases of 
 Allan V. Liver j>o()L I^. R. V) Q. B. 180, and Phillips v. 
 Hemon, 8 C. P. D. 2e) ; Ness v. Stephenson, V) Q. B. D. 
 245, and to Wharton's Law Ijexicon, "' Lodgings." 
 
 In the well known work of Addison, on Con- 
 tracts, 7tli Ed., at pages B12 and (il8, it is said : " A 
 tenant of lodgings is not always entitled to the ex- 
 (•lusive possession of his rooms. He may sometimes 
 have a mere easement of sleeping in one room and 
 eating and drinking in another ; and the landlord 
 and his servants may have a right to enter at all 
 times. When a man lets apartments in a house, he 
 impliedly demises them with all their |)roper accom- 
 paniments, and warrants to the hirer the use of all 
 
Iff 
 
 11 
 
 10 
 
 DIVISION COURTS ACT, 1881. 
 
 [Sec. 1. 
 
 HiK'li fU'ccssorial thin^K aw are iiccesHary to enable 
 liim to enjoy tlie principal sul),j<M*t-inattei' of tlu^ 
 demise in the manner intended. Ht^ impliedly 
 grants to the tenant tlu^ use of the door-bell, the 
 knocrker, the skyli^-htw or windows of the stair(-ase, 
 and th(i use of the water-<rloset, unless it be oth(*r- 
 •wiae Htipulat(Hl at tlie time of the taking of th(> 
 h)d^-in^s; and, if the landlord deprives him of the 
 use of either, he forthwith sub.jtH'ts himself to an 
 ac'tion for a breach of (contract. The; lodKin^-house 
 keeper, moreovtu*, who remains in the ,i»'eneral pos- 
 session of the h()US(% is bound to exercnse all ordin- 
 ary and reasonable (-are for the i)r()tection of the 
 persons and property of his tenants and lodgers ; 
 to see that the outer door is fastened at ni.Lrht, and 
 that straiift-ers or susper-ted or doulitfnl (-hara^-ters 
 are not i)ermitted, unknown to the k)d,s>er, to eon- 
 gre^ate in the house at unseasonable hours of tlie 
 night. He is bound, moreover, to exercnse ordinary 
 care and vigilance in the selec'tion and api)oint- 
 ment of the servants and domestics within the 
 house, and to take all such precautions as a prudent 
 householder may be exi)e(;ted to take to guard 
 against robbery and fire ; but he is not responsible 
 for the safe keeping of the ])roi)erty of his lodgers, 
 iniless it has been delivered into his hands, to be 
 safely kei)t. If, after having taken ordinary (;are 
 in the selection of his servants, a theft is committed 
 on the property of a lodger, in (;onseciuence of the 
 front door having been incautiously left open by 
 one of the servants who has been sent out on an 
 errand by the guest, the lodging-house keei)er is 
 not responsible for the loss, nor is he responsible 
 
Skc. 1, 
 
 DIVISION COtJUTS ACT, iHHi. 
 
 n 
 
 for tlu^ loss of tliiii^x stolen from tln^ lod^*'!'!^ 1>.V 
 his own servants." If lod^^^hiK- sliould be supplied 
 for the purpose of fornication or prostitution, in 
 HiK^h case no contract would arise and no compen- 
 sation iKH'd in law be made therefor: Jeumngn v. 
 Throipiiorton Uif. & Moo., 251 ; Giratuljf v. Richard- 
 son, 1 Esp. 12; Smith v. White, L. R. 1 ¥a\. H2(>; 
 Pearce v. Brookes, L. R. 1 F^x. 21. S; but board sup- 
 l)lied to a prostitute would b(i nu-overable in the 
 same way as against anybody else, for she must 
 have food as well as any otlicir ihu'sou. See Crisp 
 V. Churchill, cited, 1 N. R. .*U() ; Lloud v. Johnson, 
 1 N. R. .'J4i). 
 
 (/) OPINION OF THE JUIKfK. 
 
 Under the first alternative of the section under 
 discussion, if "board or lodging" has been sup- 
 plied, and a debt has arisen therefor, the Judge 
 lias no discretion. He must refuse to allow the 
 exemption otherwise claimable under section 125 
 of the Division Courts Act ; but under the latter 
 alternative, if the Judge is of the opinion that the 
 exempticm of $25 is not actually nect;ssary for the 
 support and maintenance of the debtor's family, 
 he cannot allow the exemption in any case. In 
 speaking of the exercise of judicial discretion. Sir 
 Peter Maxwell in his work on the Interpretation of 
 Statutes, at pages 1(X) and 101 says: " Where, as in 
 a multitude of acts, something is left to be done 
 a(5C()rding to the discretion of Justi(*es or other 
 authoritie(S on whom the power of doing it is 
 conferred, the discretion must be exercised honestly 
 and in the spirit of the Act, otherwise the act done 
 
V2 
 
 DIVISION COURTS ACT, 18H4. 
 
 ISec.I. 
 
 J 
 
 
 1 
 
 
 
 1 
 
 'II' 
 
 f; 
 
 ■iiiii 
 
 would not fall within the Statute. "AtM-onHu^ to 
 his diHcn'tion." incann, it is said, a4M^()rdin^>- tx) tlu' 
 rules of reason and .justice, not |>rivate opinion: 
 aecordin^- to law and not humour: it is to he not 
 arbitrary, vaK'ie and fanciful, hut le^'^al and rc^Mihir. 
 And it must he exercised within the limits to 
 which an honest man competent to the dis<'lwii'Ke 
 of his oftic<^ ou^ht to confine liimself : that is, 
 within the limits and for the objei^ts intended by 
 the Lef»:islature." In the (^ast^ of Macbeth v. At^hleif. 
 L. R. 2 Scotch App. 852, wlieri^ the (piestion was 
 whtther maKiwtrates liad ex<n'(rised a proper dis- 
 cretion in virtually closing up every public house 
 ill their district at a certain hour at ni^ht, where 
 they had power in any particular locality to 
 shorten the hours during which houses therein 
 should be kept oi)en. Lord ChaiKjellor Cairns 
 says at i)aKe -^^T : " If maffistrf'ites, under the ^uise 
 of exeiH-isin^'^ a discretion, had taken portion after 
 portion of their district, not with referen(;e to the 
 particular wants or recjuirements of each portion, 
 but in order by deprrees to take possession of the 
 wliole distri(^t, and under the ])retence of exercising 
 a discretion for eacli i)ortion, had virtually sub- 
 verted the general rule laid down by^ the Legis- 
 lature ; if I say your Lordships were to find, which 
 I (cannot imagine or suppose you ever would find, 
 magistrates adopting that (course for the purpose 
 of doing, what I must describe as evading, an A(5t 
 of Parliament, your Lordships would not be 
 prepared to sanction, but would discountenance 
 and prevent the exercise of a power so used." 
 At page ;36() of the same report, the present Lord 
 
Skc. 1.1 
 
 niVISIOM COURTS ACT, 1884. 
 
 18 
 
 (liniHM'llov iSt'lbonu',) Hays: " Without uwuiiIum- 
 to (h'liy that it in coiifidt'il to the? diKri-Mtioii of the 
 luaKii^tratcs to (h'tcnniin' wliat particiihir h)caliti(*s 
 nMluirc othrr hours for opening Jnid cloHin^*- than 
 those Hp('«ifi«Ml, it is ()l)vious tiiat su<rh discrrctioii 
 as they liave is not an arbitrary discretion to 
 define any localities they please, but tliey must be 
 sucli lo(^alities as they consider, in tlie honest and 
 bona jide exercise of their own .judK^^ujent to require 
 a difference to be made." A«-ain, he says : " The 
 nm^iHtrates nnist, in the exercise of an lionest 
 and bona ji<h jud^nient, be of opinion that the 
 " particular Ux^ality " which they except from tlie 
 ordinary rule is one which, from its own si)e(;ial 
 (circumstances, recjuires that difference to be made." 
 These are the ft-eneral i)rinciples on Avhich, accord- 
 ing to the hifi-hest authority, a discretion conferred 
 by an Act of Parliament on a Judicial offi(^er 
 should be exercised. 
 
 In the section under consideration, it will be 
 the duty of the Jud^e, by such evidence as may be 
 brought before him, or as he may recjuire, to 
 determine whether under the circumstances the 
 $25 is ''actually necesmry''' for the support and 
 maintenance of the debtor's family or not. Very 
 little (;an bt? gained from decided (^ases as to the 
 meaning of the words " actually necessary " beyond 
 the ordinary meaning to be attached to them with 
 reference to the particular ciicnimstancea of each 
 particular case. The late Master of the Rolls, Sir 
 George .Teasel, attempted in Johnson v. Crook, 12 
 Chan. Y). (i89, to give a definition to the words 
 
;i 
 
 14 
 
 DIVISION COURTS ACT, 188t 
 
 [Skc. 1. 
 
 ! I 
 
 11 
 
 f ■ 
 
 "ax'tiially reiteived," \vhi(!li had been used in a will 
 in renpec^t to a particulai' sliai<' of an estate, bnt 
 appare'ntly without suecews. At pa,i?e <i4'2 of the 
 report, that eminent Judye says : " It does not appear 
 to me to be doubtful that "actually received" 
 means " ac'tually received." I really do not know 
 how you can inter|)ret the Avords better." The 
 same may be said of the words whi(*h the legisla- 
 ture lias here emi)loyed. Reference may also be 
 had to Wehstei' v. The Overseers of Ashton-wider- 
 hum, L. R. 8, C. P. 281, 8()6; Gladstone v. Padwick, 
 L. R. 6, Ex. 203 ; In re Duke of Newcastle, L. R. 8, 
 E((. 7(X) ; Hatton v. Haywood. L. R. 9, Ch. 229 ; Whim- 
 sell V. Giffard, 8 Out. R. 1. 
 
 What meaning is to be attached to the word " sup- 
 |)ort and maintenance t " Worcester gives a defini- 
 tion of the word '' support " (as applicable to a (* ise 
 of this kind), as "to furnish with the me-ms of liv- 
 ing, as ^ family ; to provide for, to maintain, to 
 supply.' The same author gives the meaning of 
 " mainteiic nee " as " supi^ly of the necessaries of life, 
 sustenance, subsistence, livelihood, support, as he 
 labors for the maintenance of his family." He again 
 defines it to be " means of support, livelihood, liv- 
 ing." It may therefore be generally stated that if 
 the ^25 should by the Judge be (X)nsidered mine es- 
 sary for the purpose of obtaining the necessaries of 
 life and sustaining in an ordinary way the debtor's 
 family, then tlie exemption cannot be allowed. To 
 determine this no hard and fast rule can be laid 
 down. Every case must dei)end on its own (drcum- 
 stances. The health of the debtor, his age and 
 
Sec. 1.] 
 
 DIVISION COURTS ACT, 1881. 
 
 15 
 
 ability to work, the number of liiw fc'iniily, their a^e 
 and Hex and state of health, how many of them are 
 dependent upon him for wu|)port, and how many 
 doinp: for themselves, whether the debtor is in em- 
 ployment or is oiit of work, and when he is lik(»ly 
 to be at work again, if unem|)loyed ; these and 
 many other (nreumstanees that mi,i>-lit be suggested 
 will it is submitted, be fit subjec^ts of iiKpiiry in 
 determining this ciuestion. To jn'ovide for a man's 
 family is one of the highest laws and one of his 
 first duties to them and society. Should a debtor 
 by his best exertions be unabh^ to pay his debts and 
 support his family as well, we think no principle of 
 morality is violated in saying that the claims of his 
 family are paramount. That is the |)rin(nple on 
 which our Judges have hitherto a(*ted under the 
 judgment summons clauses of the Division Courts 
 Act, and we trust it will be the i)rinciple wlii(^h 
 will a(;tuate them and guide them in the considera- 
 tion of erases luider this amendment of the Act. 
 The means which the law has provided for sear(;li- 
 ing into a man's affairs are too great to prevent the 
 !i^25 exemption ever beccmiing a (^loak to fraud, and 
 the (KMitinu't-nce of that exemption often brings a 
 feeble ray of (comfort to many a poor, hungry and 
 needy famil> 
 
 The word ''family'' here might possibly be con- 
 strued as meaning the wife and children only of 
 the debtor. The etymologit-al meaning is not so 
 restri(;ted. Worcester defines the meaning of the 
 word to be " persons (collectively who live together 
 in a house or under one head ; household." People 
 
I 
 
 18 
 
 A 
 
 16 
 
 DIVISION COURTS ACT, 1884. 
 
 [Sec. 1. 
 
 iln 
 
 1 1 
 
 by force of circmustances or tlirous"li natural affec- 
 tion, or tliowc family ties which do wo much to keep 
 Hocnety tos:etlier, are often (compelled to sustain 
 some relative or (H)nne(-tion who may he unable to 
 support himself. It may be an aged father or 
 mother, a brother or some other relative whom cir- 
 (^umstances have driven into the house of the 
 debtor. Is any such ])erson not to be ccmsidered as 
 one of the " family " under this amended section i 
 Surely sui^h a constrm^tion would not be consistent 
 with the spirit of our lep-islation or the humane 
 (•harm^ter of the administration of our law against 
 unfortunate debtors. It is submitted that the 
 larger and more liberal meaning must be given to 
 the expression, and not that which would be cal- 
 culated to sever family ties and do violeiK^e to 
 family relationshi]). A mother and sister were 
 held f r^ ronstitute a " family " within the exemption 
 of earnings (clauses in a Statute of the State of 
 Kansas : Sei/mour v. Cooper, '2(> Kansas, 589. 
 
Sec. 2.] 
 
 DIVISION C0UBT8 ACT, 1881. 
 
 17 
 
 2. Section i;^;^ (/) of the saida^.^^^ 
 Act is hereby amended by add- 
 ing the following sub-section 
 thereto : 
 
 (2) In the event of the gar- 
 nishees being a body corporate, 
 (ff) not having their chief place of 
 business (h) within the Province, 
 then the said summons shall be 
 issued out of the Division Court 
 for the division in which the 
 cause of action (^) arose, and 
 shall be served (i) upon the 
 agent (i) of the body corporate, 
 whose office, (l) as such agent, 
 (m) is nearest {n) to the place 
 where said cause of action arose 
 
 {0). 
 
 I 
 
18 
 
 DIVISION COURTS ACT, 1884. 
 
 [Sec. 2. 
 
 ••• ii 
 
 I ■ 
 
 if) The 183rd Hection of the Division Courts Act 
 will now read as follows : 
 
 " Where jiidprment has not been recovered for the 
 claim of the primary creditor, he may (*ause a sum- 
 mons to be issued out of the Division Court of the 
 division in which the garnishee, or one or more of 
 them, if there be joint garnishees, live or carry on 
 business, in the form prescribed by tln; General 
 Rules or Orders from time to time in force relating 
 to Division Courts, upon or annexed to whi(^h shall 
 be a memorandum, shewing the names of the i^ri- 
 mary (creditor, the primary debtor, and of the gar- 
 nishee, and the particulars of the claim of the 
 I)rimary creditor, with reasonable (;ertainty and 
 detail : which summons shall be returnable, as 
 required by section 130, of this Ac^t, in respect to the 
 summonses therein mentioned. 
 
 (2) " In the event of the garnishees being a body 
 corporate, not having their chief place of business 
 within the Province, then the said sunmions shall 
 be issued out of the Division Court for the division 
 in which the (;ause of action arose, and shall be 
 served upon the agent of the body corporate, whose 
 office, as such agent, is nearest to the place Avliere 
 said cause of action arose." 
 
 The object of this amendment is to afford to 
 creditors of servants or employees of cori)orations 
 having their head office out of the Province, the 
 same remedy by garnishment i)roceedings that they 
 would have if the head office were in this Province. 
 This will be found a salutary provision if tlie words 
 
Sec. 2.] 
 
 DIVISION COURTS ACT. 1884. 
 
 19 
 
 of the Statute are sufficiently {;omi)reliensive. The 
 servants or employees of some corporations have 
 hitherto had immunity from garnishment proc^ess. 
 Their creditors in Division Court i)roceediii8S were 
 powerless to obtain redress by attacliing their 
 wages, by reason of the head offices of su(5h corpora- 
 tions being in other Provinces and Division Court 
 pro(H^ss not extending beyond the bounds of the 
 Province of Ontario. In the case of Ahrens v. 
 MeGilligat, The Grand Trunk Ry. Co. garnishees, 
 28 C. P. 171, it was held that that railway company 
 did not " live and carry on business " at any other 
 l)lace than its head office, at which its business was 
 managed. In that case it appeared that the gar- 
 nishees had their principal station at Montreal and 
 a local station at Berlin, in this Province, at which 
 they took passengers and received goods, and the 
 l)laintiff issued a garnishee summons against the 
 (Mmipany out of the Division Court at Berlin, under 
 the above (183rd) section of the Division Courts Act 
 before this amendment, on the ground that they 
 lived and carried on business there. 
 
 It was held that the Division Court at Berlin 
 had no jurisdiction. This case was followed in 
 Westover v. Turner, The Grand Trunk Ry. Co. 
 garnishees, 26 C. P. 510. The law so remained until 
 the enactment in ((uestion. 
 
 {g) «ODY CORPORATE. 
 
 (8) It will be observed that the amendment only 
 api'ies to "flf body cwpwate'''' and not to a partner- 
 ship merely, though trading or doing business 
 
(I 
 
 If 
 
 M 
 
 Wi 
 
 if 
 
 20 
 
 DIVISION COURTS ACT, 1884. 
 
 [Sec. 2. 
 
 under a ('()m])aii.v name. Two facts will have to 
 appear to ,t»ive .jurisdiction ; first, that the gar- 
 nishees are a corpr -• +}on ; se(;oiid, that the "chief 
 place of busin(!Sk ' ■-'■r h (;orporation is not within 
 the Province. Il wul devolve on the primary 
 (Teditor to estabMi^h tlies<> fa(;ts. No diffi(;ulty in 
 proof will he experien jd v. xxi?r(i the garnishees are 
 incorporated under Dominion legislation, but some 
 trouble may arise where inc:orporation takes plac^e 
 under the legislation of some otliei* Province or 
 foreign (country. 
 
 The right to garnish money in tlie hands of a 
 foreign corporation must be co-existent with the 
 right of the primary debtor in the garnishment 
 proceeding to sue that t;orporation in our own 
 courts. At one time it was said to be law that 
 foreign corporations had not the right to sue in 
 our courts on contracts made in this Province. The 
 cases of Bank of Montreal v. Bethune, 4 O. S. 
 341 ; Genesee Mutual Ins. Co. v. Westman, 8 U. C. R. 
 487, bear evidence of that. But later authorities 
 have clearly established the general proposition 
 that now foreign corporations have the same 
 remedies for the vindication of their rights in our 
 C/Ourts as domestic corporations have : WasMnf/trm 
 Count}/ Mutual Ins. Co. v. Henderson, 6 C. P. 146 ; 
 The Union India Rubber Co. v. Hibbard, 6 C. P. 77 ; 
 Hoive Machine Co. v. Walker, 35 U. C. R. 37 ; Duff v. 
 Canadian M. F. Ins. Co. 27 Grant, 391, 410. See also 
 CoquillaTd v. Hunter, 36 U. C. R. 316 ; Douglas v. 
 Atlantic M. L. Im. Co. of Albany, N. Y., 25 Grant, 
 379 ; Wilson v. The ^tna Life Am. Co., 8 P. R. 131 ; 
 
3 
 
 Sec. 2.] 
 
 DIVISION COURTS ACT, 1884. 
 
 /• 
 
 
 21 
 
 Neivhy v. (7o^^'s Patent Fire Arms Co., L. R. 7, Q, B. 
 293. The ripht to sue foreign corporations in tli^ 
 Division Court must be regulated by the same 
 rules of law as govern actions against individuals. 
 See Palmer v. Gould^s Manufacturing Co., W. N. 
 1884, page 63. Drake on Attachment, section 469. 
 A full discussion of the right of foreign corpora- 
 tions to maintain actions in our courts will be 
 found in the report of the case of Bamecfs Bank- 
 ing Co. V. Reynolds, 3 App. R. 371. Before the pass- 
 ing of this amending Statute of 1884, it was impos- 
 sible to proceed against a foreign corporation not 
 having its head office or Chief place of business in 
 this Province in the Division Court, as will be seen 
 from the authorities which have been previously 
 cited. Should a creditor attempt to obtain judg- 
 ment by such a proceeding, his suit would be 
 prohibited : Ontario Glass Co. v. Swartz, 9 P. R. 
 252. This Statute does not attempt to change the 
 law in that respect in any but garnishment cases. 
 In other cases the rights and remedies of parties 
 remain the same. In Martin v. Keily, 5 Irish C. L. 
 404, it was held that a debt could not be attached 
 under the garnishee clauses of the Irish Common 
 Law Procedure Act, unless the garnishee was 
 within the jurisdiction. In view of the two last 
 preceding cases a doubt may exist whether the 
 words of this section as amended, are yet sufficient 
 to render foreign corporations and those having 
 their chief place of business out of the Province 
 subject to garnishment. It will be observed that 
 there are no words expressly declaring such cor- 
 
 ,] 
 
't^»' 
 
 22 
 
 DIVISION COUETS ACT, 1884. 
 
 [Sec. 2. 
 
 li! 
 
 poratioiiH liable to garnishment, bnt possibly these 
 words as to the issue of the crarnishee summons 
 may be so construed. It appears to have escaped 
 the framer of this amendment that those corpora- 
 tions to which he intended it to apply, had not 
 previously been subject to Division Court process. 
 It would have saved all questions if the Statute had 
 expressly de(;lared the ri^ht to institute and main- 
 tain a garnishment suit against the corporation 
 intended to be affected, as well as making provision 
 merely for matters of procedure in such suit. 
 
 (h) CHIEF PLACE OF BUSINESS. 
 
 As has already been remarked in note (/) to 
 this section, the " body corporate " must have their 
 " chief pla(5e of business " out of Ontario in order 
 that proceedings may be taken under this amend- 
 ing clause. But what is meant by the words " their 
 chief place of business ? " There is not much to be 
 found on the legal meaning to be attached to these 
 words. The 62nd section of the Division Courts 
 Act, speaks of the right to sue in one case where 
 "the defendant or any one of several defendants 
 resides or carries on business at the time the action 
 is brought." Neither the 63rd, 64th, 65th, 66th, 
 180th nor the 133rd sections of the Division Courts 
 Act, nor the 8th, 10th, 15th sections of the Act 
 of 1880, contain any analagous expression to that 
 used in this amending clause. Unaided by judicial 
 decision, the best interpretation possible must be 
 given to these words by analogy to similar lan- 
 guage. Some instruction on the point may be 
 gained by a perusal of the cases cited at page 86, 
 
Sec. 2.] 
 
 DIVISION COURTS ACT, 1884. 
 
 28 
 
 et seq. of Sinclair's D. C. Act. In illuHtrcation of the 
 case which the legislature has here i)rovided for, it 
 may, we submit, be said, that the head office of 
 such institutions as the Bank of Montreal or Mer- 
 (ihants Bank is in Montreal ; that of the Grand 
 Trunk or Canadian Pacific Railway Companies is 
 also in the same city; or the Liverpool, Lcmdon 
 and Globe, or Royal Insuran(*e Companies' head 
 offices are in England. But in other (;ases it may 
 be more difficult to determine the (juestion. In 
 Adams v. The Great Western Ry. Co., B H. <fe N. 404. 
 Martin B. in placing a construction on the word 
 "dwell" as applied to a railway company says: 
 " In my judgment, the word " dwell " in this section, 
 when applied to a (corporation, means scmiething 
 analagous to what it means when applied to an 
 individual, viz. : a dwelling at some fixed known 
 place, not on the whole line of their railway, but 
 where its principal business is carried on. The 
 letter written by the defendants shows that the 
 head office was the place Avliere the officer comi)e- 
 tent to decide with respect to the (piestion between 
 the plaintiff and the defendants was to be found." 
 We think no better meaning can be given to the 
 words employed in this section than in the lan- 
 guage of Wilde B., at page 409 of the report of the 
 case last cited. He says : " The " home " of a com- 
 pany must be taken to be that jjlace whi(5li is o(ccu- 
 pied as such, where their profits come home to 
 them, whence orders emanate, and where the chief 
 officers of the company are to be found." It is sub- 
 mitted that no better general definition of the 
 
24 
 
 DIVISION COUETS ACT, 1884. 
 
 [Sec. 2. 
 
 t'^; 
 
 expresHion " chief place of businesH " can be ^iven 
 than that juBt quoted. See, Canada Southern Ry. 
 Co. V. Gebhard, 109 U. S. 527, Sup. Ct. 
 
 {i) CAU8K OF ACTION. 
 
 It will be observed that the aummonH nuiat be 
 iwBued out of the Division Court for the division in 
 which the clause of action arose. This makes a 
 change of venue in all garnishment proceedings 
 where the garnishee is a body corporate with a 
 head offi(;e out of this Province. In other cases the 
 summons is to be issued out of the Division Court 
 of the division in which the garnishee, or one or 
 more of them, if there be joint garnishees, live or 
 carry on business. The distinction between the 
 two classes of cases must always be kept in view. 
 But what meaning is to be attached to the words 
 "cause of action" as here employed? Are they 
 to receive the same interpretation as has been given 
 to the same words by a long course of decision in 
 England and this Province, in respect to the plat;e 
 where actions must be brought in local Courts, or 
 that which has been given to the same words when 
 used in the Common Law Procedure A(;t (Revised 
 Statutes of Ontario, chap. 50 sec. 49)? From the 
 first case on this point in this Province, of Watt v. 
 VanEvery, 23 U. C. R. 196, following which was 
 Kemp V. Owen, 14 C. P. 432 ; Carsley v. Fishen, 4 
 P. R. 255 ; Noxrni v. Holmes, 24 C. P. 541 ; In re 
 Hagle v. Dalrymple, 8 P. R. 183, down to Re Gar- 
 land V. Omnium Securities Co., 19 L. J. N. S. 395, the 
 unwavering course of decision (following the Eng- 
 lish authorities) has been that "cause of action," 
 
Sec. 2.] 
 
 DIVISION COURTS ACT, 1884. 
 
 25 
 
 iiieaiiH " whole caiine of action," and if the cause 
 of ac5tion arose partly in one division and partly 
 in another, then resort had to be had to the other 
 alternative of the Statute, namely, where the 
 defendant mift-ht reside or carry on business. On 
 the other hand, the same words in the Common 
 Law Prot;edure Act both in England and this 
 Province, have been held not to mean the " whole 
 clause of action : " Jackson v. Spittal^ L. R. 5 C. P. 
 542 ; McGiverin v. James, 33 U. C. R. 203 ; O'Drni- 
 ohoe V. WUeu, 43 U. C. R. 350 ; Gildersleeve v. Mc- 
 Dougall 31 C. P. IfU, 6 App. R. 553. With the current 
 of authority in one direction it must be presumed 
 that the lep-islature used these words in the sense, 
 wlii(5li in Division Court proceedings, judicial 
 decision theretofore had declared them to be : Ruck- 
 maboye v. Lulloobhoy Mottichund, 8 Moore P. C. 4. 
 We fear this amendment, which was intended to be 
 so remedial in cases of garnishment of corporations 
 having their chief places of business beyond the 
 Province, may not prove so beneficial after all. 
 While the cause of action arises somewhere in this 
 Province, but in different divisions, we do not see 
 where it can be said the cause of action arose. 
 Take this case : A letter is written at Hamilton to 
 Toronto, ordering certain goods to be shipped to 
 Hamilton ; that is done. Where does the cause of 
 action, that is, the wlwle cause of action arisen 
 Certainly not at Hamilton, because the order un- 
 accepted did not constitute any contract. Not at 
 Toronto, because the order, an important factor in 
 the contract, and which would have to be proved, 
 was made at Hamilton. The case would therefore 
 
■-* 
 
 1^ 
 
 it 
 
 26 
 
 DIVISION COURTS ACT. 1884. 
 
 I Sec. 2. 
 
 pn^Hcnt tlu! (liffi<;vilt.v of a contract partly made in 
 two (UviHions. In hikiIi a oaso uiidor tlio ()2ii(l hoo 
 tioii of tli«5 Division Courts Act, the plaiiitilf would 
 bo obli^od to rosort to tlio other alternative of the 
 clause and sue where the defendant resided. The 
 saiiu^ diificulty would ai)pear to exist, only in a 
 morti ay-^'-ravattHl form, where the (;ause of action 
 arose partly out of the Province. Take the (;ase 
 of ^'oods ordered in the Provin(-e of Ontario, of a 
 merchant in Quebeit, and shipped frcmi some point 
 in that Province to this. Could it be said that the 
 contract arose wholly in either Province^ We 
 submit not, and if this position is correct, the 
 absinice of any provision for suing elsewhere than 
 where the whole cause of action arose will render 
 the operation of this section limited indeed. The 
 Court cannot usurp the functions of the legislature 
 and employ language they have not employed, but 
 should simply take the language in its plain and 
 ordinary meaning, and by the light of judicial 
 interpretation give effect to it : Philpott v. St. 
 Geoi'ge^s Hospital, 6 H. L. Cas. 838. Then again, if 
 that difficulty may arise between the primary 
 debtor and creditor, so also may it arise between 
 the debtor and the garnishee. The Crown could 
 not be a primary creditor in any garnishment pro- 
 ceeding : R. V. Benson, 2 P. R. 350, nor could the 
 Crown, or any member of the (iovernment in his 
 official capacity, be made a garnishee : Drake on 
 Attachment, sec. 516. It may be argued that the 
 term " cause of action " has reference to the cause of 
 action against the garnishee. This, however, can- 
 not be the case. The cause which gave rise to the 
 
Sko. 2.1 
 
 DIVISION COURTS ACT '984. 
 
 27 
 
 ai^tioii was the non-])a.vm<'iit l)y tlic iViniary J)(»bt()r 
 t()tlu' Primary Creditor, and the briii«:in« in of tlie 
 ^arnisluie Ih merely to provide a eertain rtniuidy 
 for th(i eolh^ttion of the debt. 
 
 (j) SKKVICE OF SUMMONS. 
 
 In the absence of anythinft" to the contrary, the 
 HummoiiB Hhoidd be nerved in the same way, and 
 the parties should have the same time to app(*ar to 
 it, as in the case of an ordinary R:arnishee summons. 
 As to service of the latter, see Sin(;lair's 1). C. Act, 
 paft-ci 98 et seg, and 156, 251-253. A form of affidavit 
 of servi(;e of this summons will be found in the 
 A])i)endix. The i)rovisi'/ns of the Judicature Act, 
 allowinfi- partnerships as such to be sued, do not 
 apply to Division Courts : Clarke v. Macdonald^ 
 4 Out. R. 810 : Polloch v. Campbell, 1 Ex. D. 50. ; 
 Bank of Ottawa v. McLaughlin, 8 App. R. 548. 
 The names of all the parties must therefore appear 
 in fi:arnishment proceedings under the 8rd and six 
 following General Rules of Practice. It is an 
 uncertain question whether any but a Bailiff can 
 serve Division Court process under section 45 of the 
 D. C. A(;t : Whitehead v. Fothergill, Dra. Rep. 200 ; 
 Rattan v. Ashford, 3 O. S. 802. If at the time of 
 service of process an inspection of the original is 
 demanded and refused, the service is bad : Weller 
 V. Wallace, M. T. 1 Vict. 
 
 {k) THE AGENT. 
 
 The fourth section defines who may be con- 
 siderd an agent under this amendment. It is very 
 wide in its language. The words are "Every 
 
 ' \ 
 
28 
 
 DIVISION COURTS ACT, 1884. 
 
 [Sec. 2. 
 
 ^i 
 
 . f ; 
 
 
 \ 
 
 person who within Ontario, transacts or carries on 
 any bnsiness of, or any business for, any such body 
 corporate," shall be (considered an agent. 
 
 {I) THE OFFICE. 
 
 As the bill was originally introduced, it read 
 thus : " Whose residence or office is nearest to the 
 said place where said cause of a(;tion arose." Now, 
 the nearness of the office simply is made the test of 
 the primary creditor's right to serve the agent. 
 
 (m) AS SUCH AGENT. 
 
 The office must be that of the agent as mch, and 
 not merely one for his own private (;onvenience or 
 advantage. 
 
 {n) NEAREST TO THE PLACE. 
 
 The first point which a primary creditor proceed- 
 ing under this amendment will have to detei*mine, 
 will be wJiere the cause of action arose. The diffi- 
 culties in this connection wall b3 found discussed 
 in note {i) to this section. In what sense must 
 the word " nearest " be read here — by the ordinary 
 travelled road, or in a straight line as the crow 
 flies? It is submitted that the latter is the 
 correct method of measurement: Maxwell on 
 Statutes, 173. In Mouflet v. Cole, L. R. 7 Ex. 70, 
 and in the Exchequer Chamber, L. R. 8 Ex. 32, the 
 question was fully discussed and decided that 
 measurement by a straight line on the map was 
 the proper way of ascertaining the distance. The 
 defendant there covenanted with the plaintiff not 
 to carry on the business of a publican within half 
 a mile of the plaintiff's premises. The defendant 
 
[Sec. 2. 
 
 DIVISION COURTS ACT, 1884. 
 
 29 
 
 afterwards carried on business within half a mile 
 if the distance were measured in a straight line 
 " as the crow flies," but not within half a mile if 
 the distance were measured by the nearest mode 
 of practicable a(;cess, it was held that the defend- 
 ant had broken his covenant. The .judgment of 
 the C(Jiii't, composed of five Judges, was delivered 
 by the present Lord Blax^kburn. He says : 
 
 " The words which they (the parties) have used are 
 to be (construed in their ordinary sense, bearing in 
 mind that such is their object. That object is best 
 effecttuated by measurement on the map; and we 
 think the matter is now concluded by the balance 
 of authority in favor of that construction. In 
 Woods V. Bennett, 2 Stark. N. P. 89 : Lord Ellen- 
 borough, in 1817, at nisi pinus, laid down a rule 
 contrary to this. In Leigh v. Hind, 9 B. & C. 774 : 
 where there were two practicable modes of going 
 between the liouses, which were both less than the 
 stipulated distance?, and a third which was greater, 
 the whole Court of King's Bench thought the 
 contract broken ; but Lord Tenterden and Little- 
 hale, J., assigned as their reason that the distance 
 should be measured by the nearest mode of access, 
 and Park, J., that it should be " as the crow flies," 
 Avliich, of ftourse, was shorter than either. At the 
 time the weight of authority was probably in favor 
 of the defendant's (X)nstruction. But then arose a 
 series of (5ases : Reg. v. Saffron Walden, 9 Q. B. 70, 
 decided in the year 1846; Stokes v. Gnssell, 14 
 C. B. 678, in 1854 ; Lake v. Butler, 5 E. & B., at p. 99, 
 in 1855 ; Jewel v. Stead, 6 E. & B. 350, in 1856 ; and 
 
y 
 
 i 
 
 1 
 
 ; I 
 
 \- 
 
 • * 1 
 
 I! 
 
 ; i 
 
 
 
 80 
 
 DIVISION COURTS ACT, 1884. 
 
 [Sec. 2. 
 
 Duignan v. Walker, Joh. 446 in 1857, wliicli all 
 adopted the other rule. 
 
 " It is true that most of those cases were on the con- 
 struction of Statutes not of contracts. We do not, 
 however, think that there is any sound dis' "Miction 
 between Statutes and contracts in this respect. In 
 each the object is to substitute a certain distance, 
 capable of easy determination, for a reasonable 
 distance, which being uncertain, would be a trap 
 for litigation. And the object of the draftsman 
 who prepares either an Act of Parliament or a 
 contract, where it is necessary to specify a distance, 
 ought to be to use words that give a fixed and 
 easily ascertainable guide. 
 
 " In Lake v. Butler, 5 E. & B., at p. 99, Crompton, J., 
 says : " If this question were quite new, the con- 
 venience would be all in favor of construing the 
 distance as that measured in a straight line, and 
 the words would be, to say the least, capable of 
 bearing that construction. In common language, 
 if you ask how far it is from one place to another, 
 the answer often is, " Do you mean by the road or 
 by the fields, or as the crow flies ?" But the recent 
 authorities being all 'in favor of this construction, 
 and the decision in Reg. v. Saffron Walden, 9 Q. B. 
 76, being precisely in point, we ought to adhere 
 to it at any rate, so that the legislature may know 
 how such general words in an Act will be con- 
 strued, and use them in that sense." 
 
 " Since that case there has been a further decision 
 in the Queen's Bench of Jeivel v. Stead, 6 E. <fe B. 
 
Sec. 2.] 
 
 DIVISION COURTS ACT, 1884, 
 
 31 
 
 350 ; and a decision of Wood, V. C, in Duignan v. 
 Walker, Joli. 446, where he applies the same rule to 
 a contract as we think should be applied. We, 
 therefore, adopt as our own the judgment of 
 Crompton, J., only slightly altering the last sen- 
 tence. The recent authorities being all in favor of 
 this construction, and the decision in Duignan v. 
 Walker, Joh. 446, being precisely in point, we ought 
 to adhere to it, "at any rate, so that parties 
 framing a contract may know how such words in a 
 contract will be construed, and use them ac;cord- 
 ingly." It is to be observed, that the phrase used 
 in the judgment of the majority of the Court 
 below is that " a circle of half a mile radius is to 
 be drawn round the ' Lord Holland ; ' " and Cromp- 
 ton, J., in the passage cited, uses the phrase " in a 
 straight line." This, we think, would be under- 
 stood by any one to mean that the circle is to be 
 drawn and the line measured on a map ; and this 
 is, we think, the true meaning of the contract. It 
 is a very simple matter to take the Ordnance map, 
 and with a pair of compasses measure the distance 
 between any two points, and then by the scale ascer- 
 tain what that distance is, and we think this is 
 what, in ordinary language, is meant when people 
 speak of a circle round a particular point. But 
 inasmuch as, in laying down a map it is treated as 
 if the surface was projected on a plane, whilst in 
 reality the surface of the earth is part of a very 
 large sphere, and the surface varies in its level, 
 this distance measured in an actual straight line 
 between the points is not precisely the same as that 
 measured on a map, or, as the legislature have 
 
l^ 
 
 IM 
 
 i:! i! 
 
 ! 1 
 
 ! ( 
 
 32 
 
 DIVISION COURTS ACT, 1884. 
 
 [Sec. 2. 
 
 expreHsed it in 6 and 7 Vi(;t. C. 18, " the distance 
 measured in a straight line on the horizontal plane." 
 
 " In so short a distance as half a mile the differ- 
 ence arising from the curvature of the earth would 
 not be more than a fraction of an inch, and may 
 clearly be neglected as insensible. But that arising 
 from the inequalities of the surface, though never 
 great, may bj perceptible. If, for instance, the 
 distance me?.sured on the map between two ])laces 
 was half a mile, and there was a difference in level 
 of 130 feet, the actual distance in a straight line 
 would be half a mile and a yard. But to ascertain 
 this slight difference, it would be necessary to call 
 in a surveyor, and incur trouble and expense. And 
 we cannot think that people, in speaking of the 
 distance round a point, do contemplate such 
 minute accuracy. We think, therefore, that the 
 distance should be measured on the mai). It may 
 be observed, that where in any case it is desired to 
 adopt another rule, words can easily be used to 
 express it, as was done in Atkyns v. Kinnier, 4 Ex. 
 776," 
 
!^ 
 
 Se(j. 3.1 
 
 DIVISION COURTS ACT, 1884. 
 
 33 
 
 3. In proceedings under sec- 
 tion 130 of said Act, (o) where 
 the garnishees are likewise a 
 body corporate, (p) not having 
 their chief place of business 
 within the Province, (q) then the 
 summons mentioned in said last- 
 mentioned section shall be issued 
 from the Division Court in which 
 the judgment has been recovered, 
 (r) and shall be served upon the 
 agent of the body corporate, 
 whose office as such agent is 
 either within the division in 
 which such judgment has been 
 recovered, or is nearest thereto («). 
 
 Service on 
 companies in 
 proceedings 
 under sec. 130. 
 
 1 
 
I Itl ■' 
 
 ll 
 
 ll! 
 
 I I 
 
 if 
 
 
 I I, i 
 
 34 DIVISION COURTS ACT, 1884. 
 
 (o) PROCEEDINGS UNDER SECTION 130. 
 
 [Sec. 3. 
 
 That section of the Division Courts Act is as 
 follows : 
 
 " Whether any such attaching order is or is not 
 made, the primary creditor may cause to be sued 
 out of the Division Court for the division in which 
 the garnishee, or one or more of them, if there be 
 joint garnishees, reside or carries on business, a 
 summons in the form prescribed by the General 
 Rules or Orders, from time to time in force, 
 relating to Division Courts, upon or annexed to 
 which shall be a memorandum showing the names 
 of the parties as designated in the judgment, the 
 date when, and the Court in which, it was 
 recovered, and the amount unsatisfied; which 
 summons shall be returnable either at any ordi- 
 nary sittings of such Court, or at such other time 
 and place (to be named therein), as the Judge may 
 permit or appoint, either by a general order for the 
 disposal of such matters or otherwise." 
 
 (p) likewise body corporate. 
 
 In Grant on Corporations, the learned author 
 defines the nature of corporations, their object, 
 rights, duties and privileges in the following lan- 
 guage : He says, at page 4, " A corporation is an 
 institution calculated for and capable of duration 
 as long as the world lasts, though it may be 
 brought to a termination by certain accidents or 
 by certain defaults of duty on the part of its 
 members at any period ; but however long its 
 duration, the corporation always continues the 
 
Sec. a] 
 
 DIVISION COURTS ACT, .1884. 
 
 35 
 
 same ; and the same rig-lits, privileges, duties and 
 liabilities attach to it as it had at the first moment 
 of its creation, precisely as thougli it were an 
 individual. * * * This unbroken personality, 
 this beautiful combination of the legal characters 
 of the finite being with the essentials of infinity, 
 appears to have been the primary object of the 
 invention of incorporations, an invention which, 
 perhaps more than any other human device, has 
 contributed to the civilization of Europe and the 
 freedom of its states. By this means municipalities 
 were furnished with a form of government that 
 never wore out ; charitable trusts were secured to 
 the objects of them so long as such objects should 
 continue to be found ; the protection, improvement 
 and encouragement of trades and arts were per- 
 manently provided for, and learning and religion 
 kept alive and cherished in times through which, 
 probably, no other means can be mentioned that 
 would appear equally well qualified to preserve 
 them. The ideal being, called a corporation, we 
 may thus define to be a continuous identity ; 
 endowed at its creation with capacity for endless 
 duration ; residing in the grantees of it and their 
 successors, its acts being determined by the will of 
 a majority of the existing body of its grantees or 
 their successors at any given time, acting within 
 the limits imposed by the constitution of their body 
 politic, such will being signified to strangers by 
 writing under the common seal ; having a name, and 
 under such name a capacity for taking, holding and 
 enjoying all kinds of property, a qualified right of 
 disposing of its possessions, and also a capacity for 
 
i ■! 
 
 ? i 
 
 53r 
 
 ■:!T 
 
 36 
 
 DIVISION COURTS ACT, 1884. 
 
 [Sec. 3. 
 
 taking, holding and enjoying, bnt inalienably, 
 liberties, franchises, exemptions and privileges ; 
 together with the right and obligation of suing 
 and being sued only under such name." The late 
 Chief Justice Marshall, of the Supreme Court of the 
 United States, defines a corporation as "An artificial 
 being, invisible, intangible and existing only in con- 
 templation of law : " Dartmmith College v. Wood- 
 ward, 4 Wheaton, 518, 636. Another learned author 
 has defined a corporation as " A collection of many 
 individuals united into one body under a special 
 denomination, having perpetual succession under 
 an artificial form and vested by the policy of the 
 law with the capacity of acting in several respects 
 as an individual, particularly of taking and grant- 
 ing property, of contracting obligations, and of 
 suing and being sued, of enjoying privileges and 
 immunities in common, and of exercising a variety 
 of political rights more or less extensive according 
 to the design of its institution or the powers 
 conferred upon it, either at the time of its creation 
 or any subsequent period of its existence." Kyd on 
 Corporations 13 ; Morawetz on Private Corporations, 
 section 1. 
 
 iq) NOT WITHIN THE PROVINCE. 
 
 Provision is here made for cases under the 130th 
 section of the Division Courts Act where the gar- 
 nishees are a corporation having their chief place 
 of business outside of the Province. "What has 
 been said in note (A) to the next previous section 
 has also application here. 
 
Sec. 3.] 
 
 DIVISION COURTS ACT, 1884. 
 
 37 
 
 (r) WHERE JUDGMENT RECOVERED. 
 
 The distinction between cases under this section 
 and the 2nd section of this Act is, that there (iases 
 before judgment are provided for, here the pro- 
 vision only applies to cases in which judgment 
 has been recovered. Judgment may be said to be 
 ''recovered" when the decision of the case has 
 been duly entered by the Clerk of the Court in the 
 Procedure Book under section 38 of the Division 
 Courts Act : Strutton v. Johnson, 7 Local Courts' 
 Gazette, 141 ; B. v. Rotvland, 1 F. & F. 72 ; Dews v. 
 Riley, 11 C. B., at page 443 ; Tubbp v. Stanhope, 5 
 C. B. 790. It is submitted that "judgment has 
 been recovered " within the meaning of this section 
 only in that Court in which the judgment was 
 originally entered, and that this provision does 
 not apply to cases of judgment on transcript. 
 
 (s) SERVICE ON AGENT. 
 
 The service must be upon the agent of the body 
 corporate, whose office as such agent is either 
 within the division in which such judgment has 
 been recovered or is nearest thereto. The section 
 presupposes an agent with an office for the purpose 
 of doing business for the body corporate whose 
 servant he is. No provision appears to be made 
 for serving an agent who has not any office. If 
 such an agent as the Statute contemplates by the 
 next section, has an office, as such agent, within the 
 division, then he is the person to be served, but if 
 not, then upon the agent who has an office " nearest " 
 to the division in which judgment has been 
 recovered. The way of determining that is as 
 
 
 '■ K 
 
Il 
 
 38 
 
 DIVISION COURTS ACT, 1884. 
 
 [Sec. 3. 
 
 pointed out in Mouflet v. Cole, L. R. 8. Ex. 32, 
 referred to in note {n) to the next i)revioiia nection. 
 That point in the division nearest to the agent's 
 office sliould be taken as the starting point, tlience 
 in a straight line to tliat office. The place of 
 sitting has nothing to do with the question, as it 
 would have under section 63 of the Division 
 Courts Act. 
 
 Ill 
 
 ill iiii 
 
Sec. 4.] 
 
 DIVISION COURTS ACT. 1884. 
 
 39 
 
 4. Every person (0 who, within mo^to^be^ 
 Ontario, transacts or carries on 
 any business of, or any business 
 for, (ii) any such body corporate, 
 shall, for the purpose of this Act, 
 and of said Section 133 as hereby 
 amended, be deemed the Agent 
 thereof 
 
 it) WHO CAN BE AN AGENT. 
 
 Some difficulty may arise in construing the 
 words "every person" as we find them in this 
 section. A female as well as a male person would 
 be within the words of the Act. So also would one 
 who is not twenty-one years of age : Watkim v. 
 Vince, 2 Stark 368, or an alien as well as a citizen, 
 but it is doubtful if one who labored under mental 
 incapacity, such as a lunatic, could be an agent 
 under this section. No one can become the agent 
 of another (1) except by the will of the prin- 
 cipal, manifested in writing or orally, or by his 
 being placed in a situation in which, according 
 to the ordinary usages of mankind, he would be 
 understood to represent and act for the principal. 
 
 1 
 
M) 
 
 DIVISION COURTS ACT, 18H4. 
 
 [Sec. 4. 
 
 
 I f' 
 
 mm 
 
 (2.) When one luiH HO acted, an from liin condiK^t to 
 lead another to believe that he haw api)ointed Home 
 one to act an hin apent, and known that that other 
 in about to act on thatbehaif, then, imleHHlie inter- 
 poHCH, he would in general be entopped from diH- 
 putiuft- the aK«ucy, though in fact no agency exinted. 
 
 (3) The burthen of proof in on the pernon dealing 
 with any one an an agent through whom he Heekn 
 to change another a? principal. He munt shew 
 that the agency did exint, and that the agent had 
 the authority he assumed to exercise, or otherwise 
 that the principal is estopped from disputing it. 
 
 (4) If a merchant constitutes any one his general 
 agent for buying and selling in the market, either 
 through a particular broker or otherwise, then, 
 until revoked, the agency will continue, and the 
 principal will be bound by his acts ; and the fact 
 that such general agency once existed, would be 
 admissible as prima facie evidence of its continu- 
 ance, and the burthen would be thrown on the 
 principal to show that it had been determined ; 
 but unless the agency was a general continuing 
 agency, to endure until revoked, the fact that there 
 had been a separate agency in any number of 
 previous cases, would afford no evidence of agency 
 in any subsequent transaction, however closely it 
 may resemble all which may have gone before. 
 Authority for these four legal propositions on the 
 subject of agency will be found in the well known 
 case of Pole v. Leask 9 Jur. N. S. 829, 8 L. T. N. 8. 
 645 S. C, and the other cases cited at page 8 of 
 Sinclair's D. C. Act of 1880, Irvine v. Watson, 5 
 Q. B. D. 102 ; Young v. Schuler, 11 Q. B. D. 651. 
 
Sec. 4.1 
 
 DIVISION COURTS ACT, 1884. 
 
 41 
 
 Und«n*tlie Interpretation Act, the word " pernon " 
 iw declared to mean and incjlude "any body (;or- 
 porate or i)olitic or party, and the heirs, executoi'H, 
 adminintratorH or other lej?al representativen of 
 Hiich perHon, to whom the context can apply accord- 
 ing to law : " Rev. Stat. Ont., Chap. 1, sec. 8, sub- 
 section 13. 
 
 A question will sometimes arise whether a 
 (corporation van be an agent within the meaning 
 of this section, and whether it can be considered a 
 " person " under the words here used. In Hodgins 
 V. The Corporation of the United Counties of Huron 
 and Bnice, 3 E. & A. 169, it was held that a muni- 
 cipal corporation was not a " person " so as to entitle 
 it to a month's notice of action before action 
 brought against the municipality, notwithstanding 
 the language of the Interpretation Act. 
 
 In the case of In re Jeffcock, W. N. 1882, page 49, 
 it was held that the word "person" in a will 
 did include a corporation. In the case of The 
 Pharmaceutical Society v. The London and Pro- 
 vincial Supply Association {Limited), 5 App. Cas. 
 857, it was held that whether the word " person " 
 in a Statute can be treated as including a corpora- 
 tion must depend on a consideration of the object 
 of the Statute and of the enactments passed with 
 a view to carry that object into effect. There also 
 it was held that the word " person " did not include 
 a corporation. Would it be reasonable to say, in 
 the words of the 7th section of the Interpretation 
 Act, that it is consistent "with the intent and 
 
ll 
 
 42 
 
 DIVISION COURTS ACT, 1881. 
 
 [Sec. 4. 
 
 I 
 
 v4 
 
 I 
 
 object" of the Act before us, that a corporation 
 yhoukl be considered a " person ? " When we read 
 the words in question, in connec^tion with the other 
 words of the same section, we think the word 
 " person " cannot properly mean a corporation. It 
 speaks of a 'person" transacting or carryiiijE? oji 
 any business of or for such " body corporate," as is 
 mentioned in the two next preceding sections. If 
 the legislature had not in view two distinct 
 creations, one a "body corporate" and the other 
 an " agent," who is a " person," that is, a human 
 being, apt words could easily have been intro- 
 duced to expressly constitute a corporation an 
 agent as well, of the " body corporate." 
 
 {u) CARRIES ON UUSINESS. 
 
 The expression here used w^^ild, it is sub- 
 mitted, most generally apply to the person in 
 charge of the business ol the corj)oration at some 
 particular place, and not some subordinate officer 
 or servant of the corporation at that place. It 
 would be futile to attempt to say what particular 
 servant of v. corporation would be the agent 
 mentioned in this section. Each case must be 
 governed by its own particular circumstances as 
 they arise. 
 
FOR 
 
 AN ACT 
 
 FURTHER IMPROVING THE ADMIN 
 ISTRATION OF THE LAW. 
 
 [47 Victoria, Chapter 10, Sections and 10.] 
 
 THIS Statute in tlie two nections jnyt mentioned 
 lias in certain cases conferred new rights on 
 snitors in Division Courts, and has in many cases 
 in such Courts very materially extended the right 
 of appeal. In cases of interpleader, hitherto neither 
 party had the right of trial by jury, the adjudica- 
 tion in su(rh cases belonging exclusively to the 
 Jndge. So also in such cases no matter how large 
 the claim of the execution creditor, or the value of 
 the goods in contest, or whether both parties were 
 anxious to obtain the opinion of a higher Court 
 on a case or not, no tribunal but one had any 
 l)ower to hear and finally determine the ques- 
 tions in controversy. The legislature has evidently 
 been impressed with the opinion that where in 
 certain ci.ses an appeal is given from the Division 
 Court in matters over $100, it should equally be 
 <x)nferred in interpleader cases wliere the amount 
 claimed or the value or proceeds of the goods 
 seized amount to more than that sum. The two 
 following sections appear to be the consequen(;e 
 of that opinion. They are so extensive in their 
 ena(;tments and so introductive of new law in 
 Division Court procedure, that the writer lias 
 thought it necessary to make a comparatively full 
 annotation of these sections. 
 
 I 
 
I'ii 
 
 44 
 
 IMPROVEMENT OF D. C. LAW. 
 
 [Sec. 9. 
 
 II 
 
 Appeal in 
 Division Court 
 proceedings. 
 
 !'!^ 'I: 
 
 9. In proceedings before a 
 Division Court in interpleader, («) 
 where the money claimed, (b) or 
 the value (c) of the goods or 
 chattels claimed or of the pro- 
 ceeds thereof, (d) exceeds $100, 
 (e) and in all actions in which 
 the parties consent (/) to the 
 appeal, an appeal shall He to 
 Court of Appeal from the de- 
 cision of a Division Court Judge 
 upon an apphcation for a new 
 trial, (g) subject to the provisions 
 of the sections numbered from 17 
 to 22 (h) (both inclusive) of The 
 Division Courts' Act, 1880. 
 
Sec. 9.] 
 
 XViPROVEMENT OF D. C. LAW. 
 
 45 
 
 (a) RIGHT OF APPEAL. 
 
 The above section is to be found, as has been 
 observed, in an Act passed during the Session of 
 1884, for further improving the Administration of 
 the Law. It is in part taken from the Imperial 
 County Courts Act of 19 and 20 Victoria, Chapter 
 108, sec. 68, and is intended to give an appeal from 
 the decision of a Judge in a Division Court in 
 interpleader cases in the same way as an appeal 
 can be taken under the Division Courts Act of 
 1880. Under the latter Statute no such right 
 existed in interpleader cases : He Twner v. Im- 
 perial Bank of Canada, 9 P. R. 19. At page 22 of 
 the report of that case, Osier, J., in deliverinp* his 
 opinion says : " Clear words are necessary to con- 
 fer a right of appeal, and looking at the headings 
 which are made use of i'( the Act, and which are 
 proper to be referred to as aids to its construction, 
 and reading together the sections I have quoted, it 
 seems to me abundantly clear that it is not 
 intended to confer the right of appeal in inter- 
 •pleader suits at all, but that such right is limited 
 to cases arising under the new and extended juris- 
 diction," The provision here made, therefore, is 
 to get over the difficulty in interpleader cases in 
 appealing, which the authority just cited presented. 
 See also. Bank of Mmitreal v. Stattan, 1 C. L. Times 
 66. As to the general law of interpleader in the 
 Division Court, the reader is referred to Sinclair's 
 D. C. Act, page 214 and following pages. It may be 
 here said that an interpleader issue is a mere col- 
 lateral proceeding : Ooulson v. Spiers, 19 L. J. N. S. 
 
 "• 
 1 
 
if 
 ■§ ill 
 
 46 
 
 IMPROVEMENT OF D. C. LAW. 
 
 [Sec 9. 
 
 i i' 
 
 233, and that the Bailiff should not return, but on 
 the contrary should retain his execution in the 
 original action until the disposal of the inter- 
 pleader : Angell v. Baddeley, 3 Ex. D. 49. 
 
 (^) MONEY CLAIMED. 
 
 The "money claimed," as mentioned in this 
 clause, must refer to the amount of the claim which 
 the execution creditor holds against his debtor. 
 Some difficulty may arise as to what may be 
 included in these words. Do they mean the amount 
 of the judgment debt and costs of recovering .judg- 
 ment, together with interest from the date of 
 recovery, or do they include subsequent costs as 
 well ? On that point no opinion is offered. 
 
 (c) VALUE OF GOODS. 
 
 We fear that this provision as to the " value of 
 the goods or chattels," without any means being 
 provided for determining that value, will lead to 
 trouble and difficulty. Who is to determine that 
 value — the Bailiff who made the seizure or the 
 Judge who tries the interpleader issue? The 
 Division Court Law does not make any provision 
 for appraisement of goods seized on execution. The 
 Bailiff is not compelled to call in appraisers in such 
 a case, who under oath, might value the goods as 
 is required to be done under the 192nd section of 
 the Division Courts Act, nor is he even recpiired to 
 place a value upon them himself. See Division 
 Courts Act, section 156. The " value " is not upon 
 the goods that may be seized or otherwise taken by 
 the Bailiff, but only on those (concerning which the 
 interpleader proceedings are being had. 
 
Sec. 9.] 
 
 IMPROVEMENT OF D. 0. LAW. 
 
 47 
 
 {d) PROCEEDS OF GOODS. 
 
 There can only be an interpleader issue in the 
 Division Court for the proceeds of goods where the 
 claim is made to such proceeds, and if a claim 
 should be made to the goods seized, there could not, 
 without consent of the parties, be an issue in 
 respect of the proceeds of them : Reid v. McDonald, 
 26 C. P. 147, See also, Mc Arthur v. Cool, 19 U. C. R. 
 476; Paris ManufactuHng Co. v. Walls, 19 L. J. 
 N. S. 395 ; Watson v. Henderson, 6 P. R. 299 ; Glad- 
 stcme V. McDonell, 4 U. C. L. J. 210. A claim for 
 rent by a landlord would not be anything concern- 
 ing the pro(;eeds of goods : Bateman v. Faim^worth, 
 5 H. & N. (Amer. Ed.) 966. See also, Bosivell v. 
 Pettigreiv, 7 P. R. 393 ; Craig v. Craig, 7 P. R. 209. It 
 is submitted that the word " proceeds " as here used, 
 would mean the gross amount received by the 
 Bailiff on sale of the goods. Wharton defines the 
 meaning of the word to be " The sum, amount or 
 value of goods, etc., sold or converted into money." 
 See Jones v. Parcell, 11 Q. B. D. 430. 
 
 {e) EXCEEDS $100. 
 
 In order to entitle any party to an appeal in 
 an interpleader issue in the Division Court, unless 
 by consent, one of three things is pre-requisite. (1) 
 That the money claimed amounts to more than 
 $100. (2) Or the value of the goods to which the 
 claimant has preferred a claim is beyond that sum. 
 Or (3) that the proceeds of such goods, if a sale 
 has taken place, amount to more than $100. An 
 appeal is not generally allowed on a question of 
 (^osts merely : Sinclaii's D. C. Act, 1880, page 41 ; 
 
n 
 
 ■1 
 
 u , 
 
 1 ^ 
 
 : 
 , 1 ' 
 
 [ ! i 
 
 ill 
 
 I 
 
 M' 
 
 II :. 
 
 48 
 
 IMPROVEMENT OF D. C. LAW. 
 
 [Sec. 9. 
 
 Harphxmi v. SMcMoch, 19 Cli. D., at pcage 215 : In 
 re Cooper, Cooper v, Vesey, 20 Cli. D. 635, per JcHsel, 
 M. R. : Hale v. Kennedy, 8 App. R. 157, but where 
 a queHtion of principle is involved, such an appeal 
 will be entertained : Metropolitan Asylum District 
 V. Hill, 5 App. Cas. 582. There Lord Selborne, 
 commencing at page 584, says : 
 
 "The rule, subject to certain p^cceptions, is 
 established, that an appeal is not to be allowed 
 in respect of costs only, which means, that when 
 the merits of a question have been determined, 
 and when a Court has thought fit to give or 
 refuse costs, in the exercise of its discretion, and 
 in the absence of any settled principle upon the 
 subject, the Courts of Appeal must give so muesli 
 credit to the exercise of that discretion as not 
 to allow the merits, when they are no longer in 
 controversy, to be again gone over with great 
 expenditure, not only of money but also of judicial 
 time, for the mere purpose of reviewing that 
 discretion. It may be doubtful whether that rule 
 does not in some cases, when costs are very large, 
 practically operate so as to inflict some injustice ; 
 but, within the limits within which the rule is 
 properly to be confined, I assume that your Lord- 
 ships would not be disposed to depart from it. But 
 it is a rule not to be extended to cases which do 
 not properly fall within its scope ; and I think that 
 the present case does not fall within it. In this 
 case the Court of first instance granted a new trial 
 on the ground that the findings of the jury upon 
 the evidence were not satisfactory. As part of that 
 
 "^i^mmm 
 
Sec. 9.] 
 
 IMPEOVEMENT OF D. C. LAW. 
 
 49 
 
 order, it reserved the costs. An appeal from that 
 order was taken to the Court of Appeal, the object 
 of which was to discharge the order for the new 
 trial. The Court of Appeal conditionally dis- 
 charged the order for the new trial, and in the 
 alternative, conditionally dismissed the appeal. 
 The present appellants say that they were entitled 
 to retain the order which they had obtained from 
 the Court of first instance, unclogged and unfet- 
 tered by conditions, and that the appeal, of which 
 the object was to discharge that order altogether, 
 oug lit to have been unconditionally dismissed. 
 
 "On principle, it appears to me that such an 
 appeal is competent. A condition imposing upon 
 one party or another, as the price of an order 
 which is to be made, or permitted to stand in his 
 favor, some election to be made by him as to the 
 payment of costs, does not appear to me to bring it 
 within the rule applying to an appeal for costs 
 only." 
 
 (/) CONSENT TO APPEAL. 
 
 It is difficult to place a satisfactory construction 
 on the language of this section, relative to the right 
 of appeal conferred by the words " In all actions in 
 which the parties consent to the appeal." Do they 
 mean that in every action, no matter what the 
 amount involved, or the value of the property in 
 question, an appeal may be had if the parties to 
 the suit consent to it ? It is with difficulty that we 
 can believe the legislature intended to confer such 
 extensive powers of appeal. A Statute creating an 
 appeal must give the right in clear and unmis- 
 
 'u^i. 
 
'■^r- 
 
 
 50 
 
 IMPROVEMENT OF D. C. LAW. 
 
 [Sec. 9. 
 
 I 
 
 111' 
 
 yt ill 
 ill 
 
 ! ; 
 
 takable language. It is not a (;ommon law riprlit^ 
 but is entirely of statutory creation. In the (^ase 
 of E. V. Hanson, 4 B. & Aid. Abbott C. J. says at 
 page 521 : " The rule of law is, that although a 
 certiorari lies, unless expressly taken away, yet an 
 appeal does not lie, unless expressly given by 
 Statute." The question which this part of the 
 section presents is, whether the language employed 
 is sufficiently plain to give an appeal in all cases in 
 Division Courts where the parties to the suit 
 consent to an appeal, no matter of what nature or 
 amount the cause of action may be. At first sight 
 it might appear that appeals were controlled in 
 respect of amount by the operation of the 17tli 
 section of the Division Courts Act of 1880 by virtue 
 of the latter part of this clause ; but on considera- 
 tion it will be seen that such can scarcely be the 
 case. This clause was intended to give the right 
 of appeal in other cases than those mentioned in 
 the Act of 1880 ; first, in such interpleader proceed- 
 ings as are here specifically mentioned, and second, 
 where the parties by consent may be desirous of hav- 
 ing an appeal. Consent was not necessary under the 
 clauses of the Act of 1880 herewith incorporated, 
 because the right existed independently of consent ; 
 nor is consent necessary under the first part of this 
 section, because the amount of the money claimed, 
 or the value of the goods or chattels or of the 
 proceeds thereof, regulates the right of appeal. 
 
 These words, therefore, having no application 
 to these two classes of cases, to what other class 
 could they apply? We do not see any other 
 
 i 
 
 i 
 
 ■I 
 
Sec. 9.] 
 
 IMPROVEMENT OF D. C. LAW. 
 
 51 
 
 answer to this question than that they apply in the 
 language of the section, to "all actions" where 
 consent to appeal has been given by the parties to 
 the action. The consequence may be to tax the 
 Court of Appeal with the hearing of cases involving 
 trivial amounts ; but with that we have no concern. 
 It is with unwillingness that the writer has been 
 brouglit to this opinion, but we (;annot see how 
 effect can be given to the language of the legislature 
 unless this view be adopted. The introduction of 
 the several sections of the Act of 1880 has reference 
 more to the procedure in appeal than to the right. 
 The opinion here expressed is submitted with mucli 
 diffidence and hesitation. 
 
 The section does not declare that the consent 
 need be in writing, and in the absence of such a 
 provision a written consent would be unnecessary : 
 R. V. Salop {Justices), 4 B. & Aid. 626 ; R. v. Surrey 
 {Justices), 5 B. & Aid. 539 ; R. v. Huntingdonshire 
 {Justices), 19 L. J. M. C. 127 ; R. v. Lincolnshire 
 {Justices), 3 B. & C. 548 ; R. v. Nicol, 40 U. C. R. 76 ; 
 Ex parte Butters, In re Harrison, 14 Ch. D. 265. It 
 would, however, be advisable in all cases that a 
 formal written consent should accompany the 
 papers to the Court of Appeal. For a further dis- 
 cussion of this subject the reader is directed to 
 Sinclair's D. C. Act, 1880, pages 26, 27, 28. A form 
 of consent will be found in the Appendix. The 
 solicitors or agents of the parties, as well as the 
 parties themselves could give the consent. 
 
 f 
 
 
'^, 
 
 52 
 
 IMPROVEMENT OF D. C. LAW. 
 
 [Sec. 9. 
 
 ig) UPON APPLICATION FOR NEW TRIAL. 
 
 The right of appeal under this section is given in 
 certain interpleader cases, it will be observed, 
 subject to the provisions of certain sections of the 
 D. C. Act of 1880. There must be an application 
 for new trial, and it is only on the disposal of that 
 application that either party, if dissatisfied, can 
 appeal. For a discussion of the general principles 
 and practice, in cases of appeal from the Division 
 Court, the reader is referred to Sinclair's D. C. Act, 
 1880, page 36 and following pages. 
 
 Upon general principles the application for new 
 trial can only be made on grounds taken at the 
 trial, and it is submitted that the appellant should 
 not be allowed in the Court of Appeal to raise 
 questions of law for the first time, and to which 
 the attention of the Judge in the Division Court 
 was not called : Olarkson v. Musgrave, 9 Q. B. D. 386 ; 
 Rliodes V. Liverpool Com. Investrrmit Co., 4 C. P. D. 
 425 ; Cousins v. Lombard Deposit Bank, 1 Ex. D. 404 ; 
 Morgan v. Rees, 6 Q. B. D. 508. At page 393 of the 
 report of Clarhson v. M^isgrave, 9 Q. B. D., Mr. 
 Justice Cave says : " All the cases, including 
 8eymx)ur v. Coulson 5 Q. B. D. 359, recognize this, 
 at least, that the po^nt must be taken at the trial, 
 wJien it might be cured by evidence, and ought not to 
 be taken for the first time on appeal upon notes 
 sent up to this Court for the purpose of raising 
 another and a distinct point of law." See also, 
 Pierpoint v. Cartnoright, 5 C. P. D. 139. 
 
 i 
 
 r 
 
 I f 
 
M' 
 
 Sec. 9.] 
 
 IMPROVEMENT OP D. C. LAW. 
 
 53 
 
 (h) DIVISION COURTS ACT, 1880. 
 
 These six sections of the Division Courts Act of 
 1880, are incorporated with the present sections 
 for the purpose of carrying out appeals in those 
 interpleader cases in which the right of appeal is 
 allowed. The writer does not here reiterate what 
 was said in the discussion of these sections in the 
 annotation of the Statute of 1880, but refers the 
 reader to the views there expressed as his exposi- 
 tion here of their meaning and effect. The fol- 
 lowing are sections 17 to 22 inclusive, of the 
 Division Courts Act of 1880 : 
 
 APPEALS IN SUCH CASES. 
 
 (17) '' In case any party to a cause, wherein the 
 sum iu dispute upon the appeal exceeds one hun- 
 dred dollars exclusive of costs, is dissatisfied with 
 the decision of the Judge, upon an application 
 for a new trial, he may appeal to the Court of 
 Appeal, and, in such case, the proceedings, in and 
 about the appeal, and the giving and perfecting of 
 the security, shall be the same as on an appeal from 
 the County Court, except where otherwise provided 
 by this Act, and the terms " party to a cause " and 
 "appellant" in this section and heretofore used, 
 shall have the meaning attached thereto in and by 
 section 34 of the County Courts Act. 
 
 (18) " Any Judge of the County Court of the 
 county in which the cause was tried, on the appli- 
 cation of the person proposing to appeal, his 
 counsel, attorney or agent, shall stay the proceed- 
 ings in the cause, for a time not exceeding ten days 
 
 . I', 
 
f 
 
 64 
 
 IMI'ROVEMENT OF D. C. LAW. 
 
 [Sec. 9. 
 
 Ill 
 
 from the day of wiving judgment on the application 
 for a new trial, in order to afford the party time to 
 S-ive the Hecurity recjuired to enable him to appeal. 
 
 (19) " Upon any application for a new trial in any 
 canse wherein either party may appeal, each party 
 to the Huit shall leave with the Judge by whom the 
 application is heard, a memorandum in writing of 
 the name of Home person resident within the 
 county town of the county or united counties in 
 which the cause was tried, with his place of abode, 
 upon whom the notice of appeal, and all other 
 papers thereafter requiring service, may be served 
 for him, and service upon such person, or, in his 
 absence, at his place of abode, shall be sufficient 
 service thereof; and, in the event of failure to 
 leave such memorandum by either party, all papers 
 requiring service upon him may be served upon the 
 Clerk of the Division Court where the suit was 
 tried, or left at his office, for the person so failing 
 to leave such memorandum, and such service shall 
 be good service. The Clerk shall, in such case, 
 forthwith mail, by registered letter, all such papers 
 so served upon him to the person entitled to the 
 same. 
 
 (20) "Upon the bond being approved by the 
 Judge, or the deposit being paid into Court, the 
 Clerk of the Court in -which the suit is pending, 
 shall, at the request of the appellant, his counsel 
 attorney or agent, furnish a duly certified copy of 
 the summons with all notices endorsed thereon, the 
 claim, and any notice or notices of defence, and of 
 the evidence, and all objections and exceptions 
 
 ■ " " I II 
 
Sec. 9.1 
 
 IMPROVEMENT OF D. C. LAW. 
 
 5.5 
 
 thereto, and of all motioiiH or orderH made, granted, 
 or refuned therein, together with Huc^h notew of the 
 Judge'H (jharge an have been made, the judgment or 
 deeinion when in writing, or the noten thereof, and 
 all affidavitw filed or used in the (;auHe, together 
 with all other papers filed in the (5auHe affecting 
 the questions raised by the appeal. The Clerk shall 
 also furnish to the respondent, when required so to 
 do, a duplicate copy of the proceedings so furnished 
 to the appellant, or such portion thereof as may be 
 required by him, and for every copy he shall be 
 entitled to receive the sum of five cents per folio of 
 one hundred words. 
 
 (21) " The appellant shall within two weeks after 
 the approval of the security or deposit being paid 
 into Court, or at such other time as the Judge of 
 the said County Court may by order in that behalf 
 provide, file the said certified copy with the Regis- 
 trar of the Court of Appeal, and shall thereupon 
 forthwith set down the cause for argument before 
 a Judge of the said Court of Appeal, and shall 
 forthwith give notice thereof, and of the appeal, 
 and of the grounds thereof, to the respondent, his 
 counsel, attorney or agent, at least seven days 
 before the day for which the same is set down for 
 hearing, and the said appeal may be heard and dis- 
 posed of by a single Judge of the Court of Appeal, 
 and he shall have power to dismiss the appeal or 
 give any judgment and make any order which 
 ought to have been made, and he shall give such 
 order or direction to the Court below touching the 
 decision or judgment to be given in the matter as 
 
'W' 
 
 56 
 
 IMPBOVEMENT OF D. C. LAW. 
 
 [Sec. 9. 
 
 I 
 
 |i 
 
 the law requires, and shall also award costs to the 
 party in his discretion, which costs shall be certi- 
 fied to and form part of the judgment of the Court 
 below, and upon receipt of such order. dire(;tion 
 and certificate, the Court below shall proceed in 
 accordance therewith. 
 
 (52) "The costs taxable, as between party and 
 party, upon or connected with any appeal, shall be 
 the actual disbursements, and no greater amount 
 over and aboye actual disbursements than u. een 
 dollars, inclusive of counsel fee. The costs of 
 such appeal, as between attorney and client, shall 
 be taxable on the County Court scale. Section 55 
 of the Court of Appeals Act shall not apply to 
 appeals made under this Act." 
 
 J»4 
 
Sec. 10. 
 
 IIWPROVEMENT OF D. C. LAW. 
 
 57 
 
 sion Courts. 
 
 1(1. (i^ KitlRM* party (/) t() ail i^-^^^^^^^^^ 
 iiiterplcnuliM* issiK^ in a Division 
 ('oiirt inav require a juiy (i) t( 
 be suiiiinoiied to trv th(^ issue, 
 and in sueli ease he shall, within 
 fiv(^ days after (/) the day of 
 service of the siunnions on him, 
 give to the elerk, or h^ave at his 
 ()flfie(\ iiotiee in writing', (l) re- 
 (juiring a jury, and shall at ilie 
 saiiK^ time pay to tlu^ elerk the 
 proi>er tees (m) for the expenses 
 of such jury, and thereupon a 
 jury shall he summoned (n) ae- 
 eonhng to the imnisions of the 
 Division Courts Act. 
 
 (2) Section 122 {o) of the 
 Division Colkts Act shall ex- 
 tcMid and apply to the trial of 
 any interpleader issue. 
 
 J»4 
 
 
 ^1 
 
-J^- 
 
 i 
 
 |i>lli 
 
 m 
 
 IMPItOVEMENT OF D. U. LAW. 
 
 [Sec. 10. 
 
 t in 
 applications 
 tor new trials, 
 in Divia- 
 \xrts. 
 
 (a) Sections 5, 6, 16, 17, 18, 
 19, 20, 21 and 22 of the Division 
 Courts A(^t, 188(1, (y>) shall ex- 
 tLiid and apply to all interpleader 
 issues and other actions men- 
 tioned in the foref;oing section. 
 
 (4) U])on anv application tbrjudfimen 
 
 \ / 1 . 11 applicatii 
 
 , . I 1 tor ne\ 
 
 a new trial, or upon any appeal f„^^ci' 
 {q) from the decision of a Division 
 Court Judge, on such an appli- 
 cation the Judge of the Division 
 Court or of th(^ ('Ourt of Appeal, 
 may, instead of granting a 
 new trial, prononnc(^ the judg- 
 ment which in his opim'on (mght 
 to have been pronounced by 
 the judge at tlie trial, and may 
 order judgment to l)e entered 
 accordingly. 
 
 (i) PARTIES TO INTEKI'LKADEK FMrtirE. 
 
 claiin beiii^ made to such la-opert 
 money as may be the subje(;t of an interpleack 
 
 On a 
 
 or 
 
I 
 
 S>:c. 10.1 
 
 IMPROVEMENT OF D. C. LAW. 
 
 59 
 
 isBue (and which chiini need not be in writinK). 
 tli(> Bailiff may for his own jn-oteetion, (^anse to be' 
 issued from the Court of which lie is Bailiff, an 
 interpleader summons, (vallinR the claimant and 
 execution creditor before the Court to contest 
 +heir rig-hts. After servif^e of the summons, " the 
 case shall proceed as if the claimant were the plain- 
 tiff, and tlie execution or attat^hiiii*- creditor were 
 the defendant ' : Rule 37 of the Genera] Rules 
 of Practice. These are tlie |)arties mentioned in 
 this se(5tion. The claimant nuist '' not less than six 
 days before the day appointed for the trial, leave 
 at the office of the Clerk of the Court, a i)articular 
 of any goods or (chattels, property or security 
 alleged to be the propcnly of the (daimant, and the 
 grounds of his claim set forth in ordinary and (con- 
 cise language ; or in case of a (-laim for rent, the 
 amount thereof, for wdiat period, in respect to what 
 premises the same is claimed to be due and the 
 terms of holding ": Rule .SS. 
 
 Should these terms not !><• observed, the Judge 
 has power under the .*Wtli Rule, to allow^ the 
 provisions of the next preceding Rule lo be com- 
 plied with, and may adjourn tlit^ case to enable 
 him fully to hear and adjudicate U|)()n the claim on 
 the merits. Where the <rlaim is dismissed the 
 Bailiff's costs are to l)e allowed to iiim out of the 
 amoiuit levied, unless the Judge otherwise orders: 
 Rule 40. If the Bailiff do not, however, retain his 
 eosts out of the amount levied, he <-annot, if the 
 claimant has been ordered to pa>' tue (;osts, sue ^ 
 tJ e exe.mtion creditor foi them : Bloor v. Hit^ton^ 
 
 % 
 
 t 
 
 I 
 
 § 
 
"W 
 
 % I ilj 
 
 ao 
 
 IMPROVEMENT OF D. C. LAW. 
 
 I Sec. 10. 
 
 r 
 
 15 C. B. 'MS. It is iin|)()rtant that the claimant 
 should carefully observe these re(|uireiiients, for if 
 he neglects to do so aud a jury is suiiuuoned, mm^h 
 expense may be uselessly incnirred if the hearing- is 
 postponed. Interpleader ])roceedini»-s cannot be 
 removed into the High C^ourt of Justi(-e by 
 certiorari: Ex parte SummerH, is Jur. 5!>2 ; Russell v. 
 Williams, S IT. C. L. J. 277. The case of PaUmii v. 
 Campbell, 12 M. <fe W 277, rendered it uncertain 
 whether or not the English Interpleader Act, and 
 as a (X)nsetiuence our OAvn A(^t as well, empowered 
 ( courts to bar the (^' lim of a foreigner residing 
 abroad. Somewhat to the sanu^ effe(;t is Lindsau v. 
 Barron, B C. B. 291. But the authority of these 
 cases is very much (juestioned, if not overturned, by 
 tlie later cases of Attenboroui/h v. London and St. 
 Katharines Dock Co.. 8 C. P. J). 450; Belmont v. 
 Aynard, 4 C. P. D. 221, o52 ; The Credits Gerundmse 
 {Limited) v. VanWeede, 12 Q. B. I). 171. 
 
 ij) A. Jl'KV TO TUV THE ISSUE. 
 
 This provision of having a .jury in the trial of an 
 interpleader issue in the Division Court is (juite 
 new ; hitherto it has not been permitted. The 
 Judge alone was comi)elled to try these issues, and 
 could not take the ;)|)ini()n of a .jury on any (|ues- 
 tion, although few cases prc^sented (|uestions more 
 eminently for a jury than interpleader issues. A 
 perusal of the report of tli" case of Munsiex. Me- 
 Kinletf. 15 C. P. 50. will show how sternly a jury 
 was prohibited in interplender cases in the Division 
 Court. A jury may be summoned '' to try the issue." 
 That issue is whether or not the jjroj)erty wini at 
 
Skc. 10. 
 
 IMPROVEMENT OF D. C. LAW. 
 
 (')! 
 
 V. 
 
 tJie time of the seizure : Vmi Ever// v. N(m, 11 ( :. P. 
 \m; (hdlodm v. McDowell 17 I . V. H. .Sf)!); Mc- 
 Dowell V. McDowell 10 TT. (". L. .1. 4s ; Watt^ \\ 
 Howell 21 U. (\ K.. at pa.ye "i^i), tiie proix rty of tlic 
 claiiiumt an aRainyt the execution or attacliiii^^ 
 (•reditor: Doule v. Lasher. 1<> ('. P. ^♦v} : Merchants 
 Bank V. i^?/.sw^ IV) L. J. N. S. m\. If tlie claiiriaiit 
 has jKmsession of the goods at the time of the 
 seizure, even though lent to hiiu, that is suificnent 
 to sustain his elaini. and if tiie creditor wishes to 
 shoW' a higher riglit in himself, he must disj)lace 
 that prima facie title which possession gives : Green 
 V. Stevens, 2 H. & N. 14B ; Shingler v. Holt 7 H. ti: JS\ 
 H5. A claim of lien w^ould, if estal)lished, sustain 
 the (Claimant's right : Rogers v. Kenny. \) Q. B. 5V)2. 
 If the jury should find that each |)arty had a right 
 to some of the goods, there would be an a|)j)ortion- 
 ment of the costs, and a special entry as to the 
 goods which were found to be the ])r()perty of each : 
 Stalet/ V. Bedwell lO A. <fe E. 145 ; Segsworth v. 
 Meriden 8. Platinfi Co., 8 Out. R. 41.']. As to the 
 summoning of a jury, see, Sinclair's D. (<. Act, 141 
 to 147. 
 
 (k) DEMANDING .lURY. 
 
 Either party has a right to have a jury summonc^d 
 if he gives the |)roper notice, in writing, to the 
 ( llerk, within five days after the day of service of 
 sinnmons. The day of service is excluded as one of 
 the five days : Young v. Higgon, (> M. tfc W. 4V» ; 
 McOrea v. Waterloo M. F. Ins. Co.. L>(i C. P. 4;}7. S. C. 
 1 App. R. 218. The Judge could not extend the 
 time : Brown v. Shaw, 1 Ex. I). 425 ; Tennant v. 
 
 i 
 
 „rfj«<«« 
 
w 
 
 62 
 
 IMPROVEMENT OF D. C. LAW. 
 
 [Sec. 10. 
 
 Rawlings, 4 (1 P. D. 133 : Whistler v. Hancock, 3 
 Q. B. J). 83. In re The Prescott ±-lecti()n, 9 P. R. 481 : 
 Barker v. Palmer, 8 Q. B. D. 9. In ordinary actions, 
 a plaintiff must ^ive notice, in writins", when enter- 
 ing his case with the Clerk and the defendant, 
 within five days after the day of service. In the 
 section nnder consideration, there is no distinc- 
 tion as to time, in respect of plaintiff or defendant. 
 
 {D NOTICE IN WRFPINa. 
 
 The notice here prescribed, is a condition of the 
 right to have a .jury summoned, and the giving of 
 it should be carefully observed, if either party is 
 desirous of a .jury. A verbal notice would not be 
 suflacient, see, Fletcher v. Baker, L. R. 9 Q. B. 370. 
 If both parties appeared at the trial, and neither 
 objected to the sunnnoning or empanelling of the 
 jury, that would amount to a waiver of any omission 
 of that kind : Ex parte Morgan, In re Simpson, 2 
 Ch. D. 72, but if a jury be not properly summoned a 
 Judge should not try the case with a jury against 
 the protest of counsel for the opposing party. See, 
 Hamlyn v. Betteley, 6 Q. B. D. 63, unless the jui-ors 
 were called by order of the Judge, under the 122nd 
 section of the Division Courts Act. In that case, 
 the calling of a jury lies entirely in tlie discretion 
 of the Jiidge, but the Judge c-ould not order a jury 
 to \h^ called Avhere the law has imposed the duty of 
 determining the case on him alone : Mvnsie v. 
 McKinkii. 15 C^ P. 50. 
 
 (m) PREPAYMENT OF FEES. 
 
 The(Uerk is not bound to acce|)t the notice for 
 
Sec. 10.1 IMPEOVEMENT OF D. C. LAW. 
 
 (i8 
 
 jury, or act on it, without prepayment of the 
 expense^^ of the jury : Sinclair'n D. C. A('t, 89. He 
 yhould not exact more than should reasonably be 
 required for the purpose of havir.,^^ the jury sum- 
 moned, but he is entitled to prepa.\niient not only 
 of his owai fees in connection with the work, but to 
 those of the Bailiff as well. 
 
 (n) .JURY SHAJiL BE SliMMONED. 
 
 The language here employed is imperative, and 
 the Clerk is bound to summon the jury as he 
 would be reqiiired in ordinary cases. Either party 
 by complying with the terms of the Statute has a 
 right to have a jury summoned and his case tried 
 by a jury, and the Judge cannot deprive him of 
 that right: Sugg v. Silber, 1 Q. B. D. 862 ; Clarke v. 
 Cooh(?n, 2 Ch. D. 746 ; Ford v. Taylor, 8 C. P. D. 21 ; 
 Clarke v. Skipjyer, 21 Ch. D. 184 ; Powell v. Williams, 
 12 Ch. D. 284; Bank B. N. A. v. Eddy, 9 P. R. 468. 
 The Judge should not reject the verdict of a jury, 
 even though he might not agree with their verdict : 
 Ja.'dine v. Smith, 8 W. R. 464 ; Perkins v. Dangerjield, 
 W. IS. u^79, i)age 172. In the note of that case it is 
 said that the (-ourt "intimated that a Judge (;annot 
 disregard the finding of a jury wlii(5h is relevant 
 to the matter in dispute and enter judgment in 
 opposition to it." Nor should Judges underesti- 
 mate the importance of the finding of a jury on 
 questions fairly submitted to them. In Jenkins v. 
 Morvhs, 14 Ch. I)., at page 684, Jessel, Master of the 
 Rolls, says : " That the verdicts of juries are not to 
 bt^ set aside capriciously by Courts of Justice, that 
 they are of great weight and importance." If mis- 
 
 i 
 5 
 
^W^ '^ 
 
 (U 
 
 DIPllOVEMENT OF P. C. LAW. 
 
 [Sec. to. 
 
 <ii 
 
 direction to the jury is ('oin])laiiie(l of, it miint be 
 (lone at the trial. In A', v. WiWmmn. 42 U. Q. R., 
 at pa^-e 501. the present C-hief Justi<-o (Wilson), of 
 the Qneen's Ben<-h Division, thns lays down tlie 
 law: "In civil cases, it is well settled that, no 
 motion can be made against a verdi(^t for the mis- 
 direction of the Jud^e who tried the cause, unless 
 the party ob.jectinp: to it, brings the objection 
 whicli lie lias to it distinctly to the notice of the 
 Judg-e, and he still refuses to amend his direction." 
 In Farmm v. The Queens Ihk Co.. 48 U. V. R. 271. 
 Harrison. V. .1., thus expresses himself on this point 
 at pa.i^-e 2S0: "The least (-ounsel cjin do, when 
 dissatisfied with the rulin.i>- of the Judge, at iV?>/ 
 Priif-s, is |)romptly to «^xi)ress the dissatisfa(5tion, 
 and if necessary, respec^tfully press it upon tlie 
 |)residin,i»' Judge, with a view, if possible, to chang- 
 ing the opinion of the Judge on the spot, or, failing 
 that, with a vicAv to ulterior |)!'()ceedings." This 
 (^ase was reversed in the Judicial ('ommittee of the 
 Privy (/ouncil, but on other i)oints of the case, 7 
 App. (.as, i)H. See. also, Wkitekouse v. ffemr/wnt, 
 ;} H, iVj N. \m (Amer. Ed.), and R. & JV. Digest, 
 255(1, 255V>, and on the (piestion of new trial gen- 
 erally, see the i»ages of tliat Digest, frcmi 2580 to 
 25i>2, and 4()42 to 4H4.S. As to the summoning of a 
 jury, the reader is referred to SiiuOair's I). 0. A(-t, 
 141 et -seq. 
 
 (o) .nji)(H<:'s .ri'uv. 
 
 The section of the Division ('ourts Act here 
 referred to is tlit^se words : 
 
 122. "In (-ase the Judge, l)efore whom a suit is 
 
¥ 
 
 Sec. 10. 
 
 IMPROVEMENT OF D. C. LAW. 
 
 65 
 
 brou^lit, tliinkH it proper to have any fa(;t (X)iitro- 
 vevted in the cauHe tried by a jury, the Clerk whall 
 instantly return a jnry of five persons |)resent, to 
 try sucli fact, and the Judft-e may Kive .jiidR-ment on 
 the verdict of the jury, or may grant a new trial on 
 the appli(5ation of either party, in the same way 
 and under similar circumstances as new trials are 
 granted in other cases on verdicts of juries." 
 
 The exiH'ession "any fact" here used, has gen- 
 erally been held to mean " all controverted facts " 
 which the Judge might think proper to submit to a 
 jury. The language of this section is, that the Judge 
 " 7riay give judgment on the verdict of the jury." 
 No doubt, the word " may," when used in an Act of 
 the Asscimbly of Ontario, by the Interpretation 
 Act, and on general principles of Statutory con- 
 struction, is permissive, but it is submitted, that 
 the word cannot have that meaning in the proper 
 interpretation of this section. In Maxwell on 
 Statutes, at pages 218 and 219, it is said that 
 
 "When a Statute confers an authority to do a 
 judicial, or indeed, any other act which the public 
 interest or even individual right may demand, it is 
 imperative on those so authorized, to exercise the 
 authority Avhe?i the case arises, and its exercise is 
 duly ai)plied for by a party interested and having a 
 right to make the ap|)lication. In giving one per- 
 son the authority to do the act, the Statute 
 impliedly gives to others the right of reciuiring 
 that the a<'t shall be done ; the power being given 
 for the benc'ilt, not of him who is invested with it, 
 but of those for whom it is to be exercised. The 
 
 
 11 1 
 
m 
 
 IMI'KOVEMENT OF D. C. LAW. 
 
 [Skc. 10. 
 
 legislature, in sueli (ianes, imposes a positive and 
 absolut*^ duty, and not nu'n^ly ^'•''vew n disci'etionary 
 power, and it must be exercised upon proof of the 
 |)articular facts out of which the power r . .'es. 
 
 " Wh(;n, therefore, tlie lan^'^uaf^'e in whic^li the 
 authority is conferred is only directory, permissive, 
 or enabling' ; for instance, wlien it is enacted that 
 the person authorized "may," or "is emi)owered," 
 or " shall, if he deems it advisable," or that " it 
 shall ])e lawful" for him to do the act, it has 
 been so often decided as to have bei^nue an 
 axiom, that sm^li expressions have a comi)ulsory 
 force, unless there be special ^'•rounds for a differ- 
 ent construction." 
 
 In the (;ase of Macdougall v. Paterson, 11 C. B. 
 755, it was held that where a Statute confers an 
 authorit!/ to do a judicnal a(;t in a certain (;ase, it is 
 imperative on those so authorized, to exerc^ise the 
 authority when the case arises, and its exercise is 
 duly ai)i)lied for by a i)arty interested, and having 
 the ri^-ht to make the application. It was further 
 held in that case, that the word "may" in the 
 KJth section of the English County Courts Act of 
 18 and 14 Vi(^toria, Chapter (^1, wliic^h provides, that 
 in certain ceases, the Court or a Judge at Chambers 
 may by rule or order direct that the plaintiff sliall 
 recover his (;osts, is not used to give a dmcretion but 
 to confer a power on the Court and Judges, and the 
 exercise of such power depends not upon the dis- 
 (U'etion of the Court or Judge, but upon the proof 
 of the parti(-ular (-ase out of which such i)ower 
 
 ■^1 
 
 ■i 
 
Six'. 10.1 
 
 IMPROVRMRNT OF D. C. LAW. 
 
 «7 
 
 ariHeK. A ver\ full (liHOiiHHioii of tliis rnlc of coii- 
 striKitioii will be found in tli(^ rt^HH't of the case of 
 R. V. Bishop of Oxford, 4 Q. B. I). r>'2f>. At pa^t' n.'jn 
 of tlie wp^^i't, Brainw(dl. L. J., ways : 
 
 '' No doubt a power ^ivcni for tliti furth(U'an(*<' of 
 .juHtiee, is to bo exorcised and is a connnand. I (piite 
 assent to the remark of Mr. Justi(;e ('olerid^e, tliat 
 "words only direcjtory, permissive or enal)linK,may 
 have a (jompulsory for('e when^ the thing to be done 
 is for the publico benefit or for the advancement of 
 public .justi('e." 
 
 The same view is expressed by Harrison, C. J., 
 in the Court of Appeal, in Cameron v. Wait, 8 
 App. R., at page 194. That learned Judfi:e there 
 says : " In Kiving- one person the authority to do 
 the a(-t, the Statute impliedly gives to the others 
 the right of re(juiring that the act shall be done, 
 the power being for the benefit not of him who is 
 invested with it, but of those for whom it is to be 
 exercised." The same rule of construction has been 
 adopted in the highest Court of the United States. 
 In the case of The Supervisors v. The United States, 
 4 Wallace, 446, Mr. Justice Swayne, in delivering 
 the opinion of the Court says, at pages 446 and 447 : 
 
 " The conclusion to be deduced from the authori- 
 ties is that where power is given to public officers, 
 in the language of the Act before us, or in ecpiiva- 
 lent language, whenever the public interest or 
 individual rights call for its exercise, the language 
 used, though permissive in form, is in fact perem[)- 
 tory. What they are empowered to do for a third 
 
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 68 
 
 IMPROVEMENT OF D. C. LAW. 
 
 [Sec. 10. 
 
 m 
 
 person, the law requires shall be done. The power 
 is given not for their benefit, but for his. It is 
 placed with the depository to meet the demands of 
 right, and to pre* i i^ a failure of justice. It is 
 given as a remedy to t: ' ^ entitled to invoke its aid, 
 and who would otherwise be remediless. In all 
 such cases it is held, : .lat the intent of the legisla- 
 ture, which is the test, was not to devolve a mere 
 discretion, but to impose " a positive and absolute 
 duty." The line which separates this class of cases 
 from those which involve the exercise of a discre- 
 tion, judicial in its nature, which Courts cannot 
 control, is too obvious to require remark." 
 
 In that case, the words under consideration, as 
 expressed in a Statute of Illinois, were these : " The 
 board of supervisors under township organization, 
 in such counties as may be owing debts which 
 their current revenue is not sufficient to pay, may 
 if deemed advisable, levy a special tax," etc. It 
 was held, that the exercise of the power was an 
 imperative duty. 
 
 The section in question, goes on to say that the 
 Judge " may grant a new trial on the application 
 of either party." Should the grounds of applica- 
 tion warrant a new trial, according to well known 
 principles of law, then the duty of the Judge to 
 grant a new trial would be obligatory upon him, 
 for the section goes on to declare that he may do 
 so " in the same way, and under similar circum- 
 stances, as new trials are granted in other cases on 
 verdicts of juries." New trials in other Courts are 
 granted where the jury has clearly erred, or where 
 
■/!> 
 
 Sec. 10.] 
 
 IMPROVEMENT OP D. C. LAW. 
 
 69 
 
 there has been mistake of the Judge, or where 
 there has been misconduct on the part of the officer 
 summoning the jury, or where by means of any 
 stratagem or ill practice of the successful party, he 
 has possibly obtained the verdict. It will also be 
 granted where the party defeated has been taken 
 by surprise, or from any other cause not being the 
 result of negligence or misconduct on the part of 
 him who has failed, injustice would be done unless 
 a new trial were granted : Lush's Pract., 629 ; Hil- 
 liard on New Trials, Chapters 1 and 2. Courts will 
 not hesitate to grant c- second, or a third new trial 
 if it appears that the purposes of justice will be 
 thereby promoted : Kerby v. Lewis, 1 U. C. R. 66 
 and 285 ; Sanderson v. The Kingston Marine Ry. Co., 
 4 U. C. R. 340 ; Sutherland v. Black, 10 U. C. R. 515, 
 11 U. C. R. 243 ; Smith v. McKay, 10 U. C. R. 412, 
 613 ; Haworth v. British America Ass. Co., 6 C. P. 
 60 ; Coulson v. Ontario Fire and Marine Ins. Co., 6 
 C. P. 63 ; Coatmvorth v. The City of Toronto, 7 C. P. 
 490, 8 C. P. 364 ; Murphy v. Case, 21 U. C. R. 470 ; 
 Vidal V. F(yrd, 19 U. C. R. 88 ; GHldersleeve v. Bonter, 
 13 U. C. R. 492 ; Jaffrey v. Tworvto Orey and Bruce 
 Ry. Co., 24 C. P. 271. 
 
 As to the principles on which new trials are 
 granted, see Lush's Pract. 628-645 ; Arch. Pract. 12th 
 Ed., 1518-1548 ; Chitty's Forms, 11th Ed., 343-346 ; 
 L. R. Digest, 1880, pages 2567-2568 ; R. <fe. J's. Digest, 
 2529-2592, 4642-4648 ; Billiard on New Trials. 
 
 (j?) PROCEDURE IN APPEALABLE CASES. 
 
 These sections of the Division Courts Act of 1880, 
 
 
 •fs" > 
 
 \\\ 
 
70 
 
 IMPROVEMENT OP D. C. LAW. 
 
 [Seo. 10. 
 
 
 are extended to all interpleader issues and other 
 actions mentioned in the preceding section. The 
 order in which interpleader issues that are appeal- 
 able are to be tried ; the necessity for taking down 
 the evidence in writing ; the giving and perfecting 
 of the security ; the order for stay of proceedings to 
 enable the party dissatisfied with the decision of 
 the Judge to perfect the necessary security ; the 
 service of papers in appeal ; the certification by the 
 Clerk of the proceedings and evidence ; the setting 
 do^^^i of appeals, and the costs taxable on appeal, 
 are che principal matters provided for in these 
 sections of the Act of 1880. It will be observed that 
 these clauses are not only extended to appealable 
 interpleader proceedings, but tc all " other actions " 
 that are the subject of appeal. The meaning which 
 the writer attaches to these words will be found 
 expressed in note (/) to the next preceding section. 
 In order tc the proper understanding and decision 
 of a case on appeal, where the parties consent to 
 appeal, it will readily appear how necessary it is 
 that the consent should be given before entering 
 upon the trial of the case. In ordinary cases in the 
 Division Court, a Judge is not bound to take down 
 the evidence in writing, and unless he knows at 
 the commencement of a trial that the parties are 
 desirous of taking the opinion of the Court of 
 Appeal on the correctness of his decision, whatever 
 it may be, the necessary material for appeal would, 
 in most cases, be wanting. For the views of the 
 writer on the different points which these sections 
 of the Act of 1880 suggested, reference is made to 
 
Sec. 10.] 
 
 IMPROVEMENT OF D. C. LAW. 
 
 71 
 
 the annotation made by him on these clauses of 
 that Act. It is important for a party appealing, to 
 take all his points and objections before the Judge 
 at the trial, and on the application for a new trial. 
 Should he not do so, he would, it is submitted, be 
 precluded from insisting on some new point or 
 objection not urged before the Judge of the 
 Division Court : RTwdm v. Liverpool Cam. Invest- 
 ment Co., 4 C. P. D. 425 ; Caiisins v. Lombard Deposit 
 Bank, 1 Ex. D. 404. In the former case, Mr. Justice 
 Grove, says, at pagep 429 and 430, in speaking of 
 a section of the English Act of 38 and 39 Victoria, 
 Chapter 50, in reference to appeals from County 
 Courts, where the Judge was not asked, as the 
 Statute requires, to make a note of any question of 
 law raised at the trial, or of the evidence in 
 relation to it ; that " The object of that enactment, 
 as is stated in Cousins v. Lombard Bank, is, to pre- 
 vent that which would work manifest injustice, 
 viz., persons taking their chance of the decision of 
 the County Court Judge being in their favor, and 
 afterwards, on finding the decision against them, 
 taking advantage of a mistake in some point of law 
 to which the attention of the Judge had never been 
 called." Where such request was not made to the 
 Judge until an hour and a-half after judgment 
 was given by him, it was held too late : Pierpoint 
 V. Carttoright, 5 C. P. D. 139. The case of Morgan v. 
 Rees, 6 Q. B. D. 89, decides that a Judge is only 
 bound to send to the Court of Appeal such notes 
 of the trial as he is by the Statute compelled to 
 take, and any private notes for his own informa- 
 
 i 
 
 1 V 
 
 1 'i 
 
VI 
 
 IMPROVEMENT OF D. C. LAW. 
 
 [Skc. 10. 
 
 tion, he is not obliged to send in. In Clarhson v. 
 MiLsgrave, 9 Q. B. D. 386, it was held, that it was a 
 condition precedent to the right of appeal under 
 the English Statute above referred to, that the 
 (question of law upon which it was desired to 
 appeal, should have been raised before the County 
 Court Judge at the trial. 
 
 The Judge could not delegate the right to allow 
 the appeal bond. It is a judicial act to be per- 
 formed only by himself : Hdskins v. St. Louis and 
 8. E. R. R. Co., 109 U. S. 106, Sup. Ct. 
 
 It must appear that the Court below is clearly 
 wrong before a decision will be reversed on a ques- 
 tion of fact : Chard v. Jervis, 9 Q. B. D. 178. In 
 that case, at page 181, Jessel, M. R., says : " Indeed, 
 we never ought to overrule the decision of the 
 Court below on a question of fact, unless it is 
 clearly made out that the decision is wrong." 
 
 lUustrativ:, of the same principle, see, cases cited 
 at pages 36 to 39 of Sinclair's D. C. Act, 1880, and 
 Bickford v. Howard, 18 L. J. N. S. 422 ; Scribner v. 
 McLaren, 2 Ont. R. 265 ; Berthier Election Case, 
 20 L. J. N. S. 172 ; In re Allen 31 U. C. R. 458 ; Harp- 
 ham v. Shacklock, 19 Ch. D. 207 ; In re Cooper, Cooper 
 V. Vesey, 20 Ch. D. 611 ; Nasmith v. Manning 5 App. R. 
 126 ; SUverthom v. Hunter, 5 App. R. 157 ; Seaton v. 
 Lunney, 27 Grant 169, 172 ; Metropolitan Asylum 
 District v. Hill, 5 App. Cas. 582 ; Campbell v. Prince, 
 5 App. R. 330 ; Ex parte Butters, In re Harrison, 14 
 Ch. D. 265. 
 
Sec. 10.1 
 
 IMPROVEMENT OF D. C. LAW. 
 
 73 
 
 relay induced by the opposite party is no excuse 
 for not appealing within the prescribed time : 
 Pardee v. Lloyd, 5 App. R. 1 ; nor could the Judge 
 extend the time : Barker v. Palnier, 8 Q. B. D. 9, 
 Sinclair's D. C. Act, 1880, 45 ; nor in any way alter 
 his decision after certification to the Court of 
 Appeal : Rosehatch v. Parity, 27 Grant, 193 ; Warner 
 V. Riddifwd, 4 C. B. N. S. 180 ; unless returned to 
 him for the purpose : L. <& N. W. Ry. Go. v. Grace, 
 2 C. B. N. S. 555. It is doubtful if any grounds of 
 appeal could be argued, except those of which notice 
 was given under the 2i&st section of the Act of 1880 : 
 Oahes v. The City of Halifax, 4 Sup. R. 640 ; Hil- 
 liard v. Eiffe L. R. 7 H. L. 39 ; Chapman v. Knight, 
 
 5 C. P. D. 308. In addition to the cases cited at 
 pages 58 and 59 of Sinclair's D. C. Act, 1880, in 
 regard to costs on appeal, see, Ex parte Fardmis 
 Vinegar Co., 14 Ch. D. 285 ; Charlton v. Charlton, 
 16 Ch. D. 273 ; Philipps v. Philipps, 5 Q. B. D. 60. 
 Where a judgment was varied on a matter of dis- 
 cretion, no costs of appeal were given : Campbell v. 
 Prince, 5 App. R. 330. A judgment in the Division 
 Court, if unreversed on appeal, is (5onclusive of the 
 facts in controversy in all Courts : Hunter v. Van- 
 sione, 7 App. R. 750. An interpleader proceeding is 
 within the words " action at law : " Canada P. B. 
 
 6 S. Society V. Forest, 10 L. J. N. S. 78. 
 
 iq) JUDGMENT THAT SHOULD BE GiVEN. 
 
 The object of this provision is quite clear. It is 
 designed to expedite legal proceedings and save 
 expense. Under the law formerly regulating pro- 
 ceedings in the Division Court, any mistaken view 
 
 ?■ 
 
 4i 
 
 
74 
 
 IMPROVEMENT OF D. C. L\W. [SeC. 10. 
 
 of law or fact by the Judge could only be remedied 
 by the granting of a new trial. The legislature 
 following the law relating to appealn from other 
 CourtH, han not only given the Oourt of Appeal the 
 I)ower to i)ronounce the judgment, which in the 
 opinion of Huch Court, ought to have been pro- 
 nounced at the trial by the Division Court Judge, 
 and to order judgment to be entered accordingly, 
 but hay conferred the same power under like 
 circumstanc^es on the Judge who tried the c^ase. 
 But, should a cause be tried with the aid of a jury, 
 neither the Judge in the Division Court on an 
 application for new trial, nor could the Court of 
 Apjjeal, in the event of there being a miscarriage 
 of justice, do more than grant a new trial. The 
 Judge at the trial, as already remarked, must 
 re(;eive the verdict of the jury, although he may 
 not agree with it : Jardine v. Smith, 8 W. R. 464 ; 
 Perkins v. Dangerjield, W. N. 1879, page 172, and 
 must enter judgment upon it. But this sub-section 
 does not permit the Judge in the Division Court 
 nor the Court of Appeal, if he or they differ from 
 the finding of the jury, to enter such judgment, as 
 either might think proper, in disregard of such 
 verdict. It only embraces cases where the Judge 
 ought to have pronounced a different judgment, to 
 what he did, in actions tried exclusively by him : 
 Moore v. Connecticut M. L. Ins. Co., 41 U. C. R. 497 : 
 In appeal, 3 App. R. 230, and in the Supreme Court, 
 6 Sup. R. 634 ; Austin v. Davis, 7 App. R. 478. 
 Solomon v. Bittern, 8 Q. B. D. 176. 
 
AN ACT 
 
 EELATING TO DIVISION COURTS IN THE 
 DISTRICTS OF NIPISSING, MUSKOKA, 
 PARRY SOUND AND THUNDER BAY, 
 AND TO AMEND THE DIVISION 
 COURTS ACT. 
 
 [4''> Vietorw, Ontario, Chapter 7.] 
 
 or may 
 Rrant leave of 
 "•absence to 
 or 
 
 ;i. Leave of absence (a) may mspect 
 
 \ / •' Rrant 1( 
 
 be granted by the Inspector ol^S 
 Division Courts to any Clerk oi* 
 Bailiff for a period not exceeding 
 two months. In the event of 
 leave of absence being so granted 
 to any Clerk, he may from time 
 to time, with the approval of 
 the Inspector of Division Courts, 
 appoint a deputy to act for him 
 with all the powers and privileges, 
 and subject to Uke duties. He 
 may remove such deputy at his 
 
 t; 
 
 V, 
 
 I 
 
 IP' 
 
 
7H 
 
 DIVISION COFRTS ACT, 1882. 
 
 [Sec. 3. 
 
 pleasure, and the Clerk and his 
 sureties shall be jointly and 
 severally responsible for all the 
 acts and omissions of the deputy. 
 
 (a) liKAVE OF AKSKNCK TO CLERKS OR BAILIFFS. 
 
 Power is here given for the first time, to the 
 Inspector of Division Courts, to grant leave of 
 absence to Clerks and Bailiffs. Tlie time limit of 
 such absence is two montlis. At one time, it was 
 questionable whether the legislature could appar- 
 ently delegate its powers iii this way : i?. v. Hodge, 
 46 U. C. R. 141, but the late decision of the Judicial 
 Committee of the Privy (vouncil in that case, estab- 
 lishes the law that the Provincial legislatures have 
 the power in matters within their jurisdiction, to 
 delegate certain powers which may be exercised by 
 such legislatures themselves : Hodge v. The Queen, 
 9 App. Cas. 117. 
 
 At page 132 of that report, the .Judgment of the 
 Court declares that "When the BrHish North 
 America Act enacted that there should be a legisla- 
 ture for Ontario, and that its legislative assembly 
 should have exclusive authority to make laws for 
 the Province and for provincial purposes in 
 relation to the matters enumerated in section 92, 
 it conferred powers not in any sense to be exercised 
 by delegation from or as agents of the Imperial 
 Parliament, but authority as plenary and as ample 
 within the limits prescribed by section 93 as the 
 
Skc. 8.] 
 
 DIVISION COURTS ACT, 1882. 
 
 77 
 
 Imperial Parliament in the ])lenitude of its power 
 possessed and could bestow. Within these limits 
 of subjec/ts and area the local legislature is 
 supreme, and has the same authority as the 
 Imperial Parliament, or the Parliament of the 
 Dominion, would have had under like circum- 
 stances to confide to a municipal institution or 
 body of its own creation authority to make by-laws 
 or resolutions as to subjects specified in the enact- 
 ment, and with the object of carrying" the enact- 
 ment into operation and effect/' 
 
 The two months time here mentioned would 
 commence to run from the posting of the Inspector's 
 letter granting leave, and not from the receipt of it 
 by the Clerk or Bailiff : Dunlop v. Higgins, 1 H. L. 
 Cas. 381 ; Household F. Ins. Co. v. Grant, 4 Ex. D. 
 216 ; Unirni F. Ins. Co. v. Fitzdnmums, 32 C. P. 602 ; 
 GDmwhue v. Wileu> 43 U. C. R. at page 363 ; Frey v. 
 Wellington, M. Ins. Co., 4 App. R. 293. The day 
 of posting the letter would be excluded in the 
 calculation of the time. In Young v. Higgon, 6 M. 
 & W. 49, Parke B. says at page 53 : " That when 
 time from a particular period is allowed to a party 
 to do any act, the first day is to be reckoned 
 exclusively." The cases of McCrea v. Waterloo M. 
 F. Ins. Co. 26 C. P. 437, 1 App. R. 218 ; and Ex parte 
 Whitton, In re Greaves, 13 Ch. D. 881, are to the 
 same effect. Should such leave be granted to a 
 Clerk, power is here given to him to appoint a 
 deputy from time to time. He cannot have more 
 than one deputy at a time, but he may have several 
 in succession during the time he is absent on leave. 
 
78 
 
 mVISlON COURTS ACT. 1882. 
 
 |8kc. X 
 
 Ml 
 
 Power in given by the 35tli Heetion of the Division 
 Oonrts Act to the Clerk, with the approval of the 
 .JudKe, from time to time when the Clerk i8 pre- 
 vented from acting, "by illnesH or other unavoidable 
 aci^ident." to appoint a deputy, but in the plenary 
 pow(M' conferred by thi« wection on the InHpe<*tor 
 no Huch eventn need be firnt (H)nKidered by him. 
 He haw power to grant HUch leave for whatever 
 (Wise he may see fit, and may approve or disapprove 
 at pleasure of any person that the Clerk ai)p()ints. 
 This secition does not repeal the 85th section of the 
 Division Courts Act just referred to, so that the 
 Clerk has yet, for the causes therein mentioned, and 
 those only, the power of appointing a deputy to be 
 approved of by the Judge. Proceedings in all mat- 
 ters should be had and taken in the name of the 
 Clerk, " By A. B., Deputy Clerk," or in the name of 
 the Deputy Clerk himself. The deputy is the 
 representative of the Clerk. His authority only 
 exists during the tenure of office of the Clerk 
 whose deputy he is, and should the Clerk die, or 
 be removed, the authority of the deputy would 
 thereby cease. The fees pertaining to the office 
 would belong to the Clerk and not the deputy, and 
 any rights therefor would be in the name of the 
 Clerk. The Deputy Clerk cannot have more or 
 less power than his principal, and all duties which 
 the Clerk could perform can be done by him : 
 Parker v. Kett, 1 Salk. 95 ; Godolphin v. Titdor, 2 
 Salk. 468 ; In re Hoey v. McFarlane, 4 C. B., N. S. 718. 
 The words of the Statute declare that the Deputy 
 Clerk shall have '"all the powers and privileges " 
 
 P til jiij!).; 
 

 Skc. 8.] 
 
 DIVISION COURTS ACT, 1882. 
 
 7J) 
 
 of the Clerk. It would appear from Godot nkin v. 
 Tudor mjrra, and otlier canew, that lie would at 
 (xnnuion law have «iu;h by virtue of Iuh a|)poiiit 
 nieiit. "There in a distinction l^etwee.: doin>^ an 
 in'X by iv\ 'iy:ent and doin^ an mi by a d(M>uty, 
 vvhmn the hiw deemw HU(^h. An a^ent can only 
 bind hin principal when he doen an a(*t in the 
 name of hiw principal. But a deputy may do the 
 act and wi^n liiH own name, and it bindw IiIh princi- 
 pal, for the deputy in law liaw the whole power of 
 hi8 princii)al." Story on Agency, nection 149, (Ed. 
 1882). See, alwo, Oraiu v. Radford, 8 Wheaton, 
 .W4. The Clerk t^an remove liin deputy at pleanure. 
 Being- with hin suretieH rcHponsible for " the acty 
 and omiHHioiiH" of the deputy, the Clerk should 
 have the power to protect himself against his mis- 
 conduct which the section here gives him. 
 
 iiu 
 
 I 
 
 'M 
 
 Hi 
 
m 
 
 DIVISION COURTS ACT, 1882. 
 
 [Sec. 4. 
 
 Appointment 
 of depi ■ 
 BaUifl. 
 
 deputy by 
 
 4:, Where a BailiflF is tem- 
 porarily unable to perforrn the 
 duties of his office from illness, 
 leave of absence or other tem- 
 porary disability, he may from 
 time to time, with the approval 
 of the Inspector of Division 
 Courts, appoint (^) a deputy to 
 act for him, with all the powers 
 and privileges and subject to 
 like duties, and may remove 
 such deputy at his pleasure, and 
 the BaiUfl' and his sureties shall 
 be jointly and severally respon- 
 sible for all the acts and omis- 
 sions of the deputy. No such 
 appointment shall have force 
 for a longer period than two 
 months. 
 
 {b) APPOINTMENT OK DEPUTY BAILIFF. 
 
 Many of the remarks made in the note to the 
 preceding section have application to this also. 
 

 Sec, 4.] 
 
 DIVISION COURTS ACT, 1882. 
 
 81 
 
 The appointment of a deputy can only be made by 
 a Bailiff : (1) Where he is temporarily unable to 
 perform the duties of hiu office from illness ; (2) 
 absent on leave ; (3) or by reason of any other tem- 
 porary disability. The appointment is not complete 
 until it has the approval of the Inspector, and can- 
 not be for a longer period than two months. The 
 deputy is removable at the pleasure of the Bailiff. 
 He has all the powers and privileges of the Bailiff 
 during the continuance of his deputation, but no 
 longer, and is subject to like duties. No power is 
 here given to the Judge to remove a Deputy Bailiff, 
 but probably where a Bailiff could be removed or 
 suspended by the Judge, so also could his deputy. 
 It may become a question whether the sureties of a 
 Clerk or Bailiff on a covenant entered into before 
 the passing of this Act, would be liable for the 
 " acts and omissions " of a deputy appointed under 
 the next preceding section and this. It is submitted 
 that they would be liable : The Eastern TJnwn, Ry. 
 Co. V. Cochrane, 9 Ex. 197; TJie Corporatimi of 
 Beverly v. Barlow, 10 C. P. 178 ; The Cwporatian of 
 Ontario v. Paxton, 27 C. P. 104. But the sureties 
 would only be liable for acts and omissions by the 
 deputy in virtue of his office : Preston v. Wilmot, 
 23 U. C. R. 348 ; Kero v. Pmwll, 25 C. P. 448 ; Mc- 
 Leish V. Haivard, 3 App. R. 503. See, Pyhis v. Oihh, 
 6 E. & B. 911 ; Victoria M. F. Ins. Go. v. Davidsmi, 
 3 Ont. R. 378. 
 
 ^i i 
 
 I \ 
 
 iSil 
 
82 
 
 DIVISION COURTS ACT, 1882. 
 
 [Sec. 5. 
 
 R^s.o..c.47. g Section one hundred and 
 
 amended. 
 
 seventy-seven (c) of the Division 
 Courts Act is amended by strik- 
 ing out the words ^4n any other 
 county" in the sixth Une thereof. 
 
 [C) TRANSCRIPT OF JUDGMENT. 
 
 Formerly a transcript of judgment could not be 
 sent from the Clerk of one Court to the Clerk of 
 another Court in the same county : Con. Stat. U. C, 
 Chapter 19, section 139, 10 U. C. L. J. 35. That was 
 changed by the Act of 32 Vict., Chapter 23, section 
 25, but no change was made in the then 160th, now 
 the 177th section of the Division Courts Act in 
 regard to the Court from w:hich a transcript might 
 come for the purpose of the examination of judg- 
 ment debtors. There was no reason why a plaintiff 
 should not have the right to examine a defendant, 
 no matter whether the transcript came from a Court 
 in the same or " any other county." Now a defend- 
 ant can be examined on a judgment by transcript 
 without reference to the Court from which such 
 transcript issues. Where a transcript was sent 
 before the passing of this Act from one Clerk to 
 another Clerk in the same county, the defendant 
 could be examined after the passing of this Act in 
 the Court to which such transcript was sent. 
 
Sec. 6.] 
 
 DIVISION COURTS ACT, 1882. 
 
 8» 
 
 nulla bona in 
 execu- 
 
 atraus- 
 
 Bcript of judg- 
 
 6. The Clerk of every Division IgS; 
 Court shall, immediately after S 
 
 _ script - 
 
 NULLA BONA has been returned to '""''* 
 any execution issued on any tran- 
 script of judgment received from 
 another Court, forward through 
 the post-office (d) to the plaintiff, 
 if his address is known, or to the 
 Clerk who issued the transcript, 
 at his post-office address, a notice, 
 enclosed in an envelope, inform- 
 ing him of the date at which the 
 execution issued, the date at 
 which the same was returned by 
 the BaiUff, and the return made 
 thereto. The notice thus sent 
 shall be prepaid and registered, 
 and the Clerk shall obtain and file 
 among the papers in the suit the 
 
 i i 
 
84 DIVISION COURTS ACT, 1882. [SeC. 6. 
 
 post-office certificate of such 
 registration, and the postage and 
 charge for registration shall be 
 costs in the cause. The absence 
 from amongst the papers in the 
 suit of any such certificate of 
 registration shall be prima facie 
 evidence against the Clerk that 
 such notice has not been for- 
 warded. 
 
 id) CLERK TO NOTIFY PLAINTIFF OF RETURN 
 OF NULLA BONA ON TRANSCRIPT. 
 
 This provision was very much required. Suitors 
 were frequently kept in ignorance of what was 
 done on executions founded on transcripts, by the 
 omission of Clerks at a distance to notify Clerks 
 of home Courts of the return of nulla bona which 
 had been made. Under this section the Clerk to 
 whom a transcript may be sent must immediately 
 forward through the post, prepaid and registered 
 to the plaintiff, if his address is known, or to the 
 Clerk who issued the transcript, a notice informing 
 him: (1) When the execution issued ; (2) The date 
 of its return ; (3) The return of the Bailiff thereto. 
 The language used is imperative and peremptory. 
 Cockbum C. J., says at page 471 of the report of the 
 «*ase of R. v. BerhMre, {Justices), 4 Q. B. D., that " It 
 
TTI 
 
 i:' :T 
 
 Sec. 6.] 
 
 DIVISION COURTS ACT, 1882. 
 
 85 
 
 is impossible to lay down any hard and fast rule as 
 to what is the meaning of the word " immediately " 
 in all cases. The words " forthwith " and " imme- 
 diately" have the same meaning. They are stronger 
 than the expression "within a reasonable time," 
 and imply prompt, vigorous action, without any 
 delay, and whether there has been such action is a 
 question of fact, having regard to the circumstances 
 of the particular case." See, also, Exparte Lamh. 
 In re Southam, 19 Ch. D. 169. At first sight it might 
 appear that the Clerk to whom the execution might 
 be returned had the option of sending this notice 
 either to the plaintiff or the Clerk from whom he 
 received it. A closer examination of the section 
 and a consideration of its object will discover that 
 this view of it is not correct. If the Clerk knows 
 of the plaintiffs post-office address, then the notice 
 should be sent to him ; if he does not, then and 
 then only should he notify the Clerk. The object 
 of the section in question is to bring home the 
 nature of the return to the person most interested 
 —the plaintiff. As the absence of the post-office 
 certificate of the registration of the letter contain- 
 ing the notice may militate against the Clerk, the 
 importance to him of always registering such letters 
 will be apparent. Of course the absence of the 
 certificate of registration is only prima facie evi- 
 dence of the notice not having been sent. The 
 Statute would be virtually complied with if there 
 was other evidence of the notice having been 
 received by the plaintiff : Camphdl v. Barrie^ 31 U. 
 C. R. 279. But the safest course is for the Clerk to 
 register the letter containing the notice in all cases. 
 
 I 
 
 s 
 
86 
 
 DIVISION COURTS ACT, 1882. 
 
 [Sec. 7. 
 
 H.8. 0.,o. 
 8. 244, 
 amended. 
 
 47, 
 
 i 
 
 ■i* 
 
 7. There shall be added to the 
 two hundred and forty-fourth 
 section of the Division Courts 
 Act, the following words: — Pro- 
 vided that nothing herein con- 
 tained shall be held to authorize 
 the taxation or allowance of costs 
 to any officer of the Court, other 
 than those to be found in the 
 tariff of fees (6)as authorized and 
 allowed by "the Board of County 
 Judges," under the provisions of 
 this or any other Act. 
 
 ie) NO COSTS BEYOND THOSE ALLOWED BY TARIFF. 
 
 The 244th section of the Division Courts Act wiU 
 now read as foUows : 
 
 " In any case not expressly provided for by this 
 Act, or by existing Rules, or by Rules made under 
 this Act, the County Judges may, in their discre- 
 tion, adopt and apply the general principles of 
 practice in the Superior Courts of Common Law to 
 actions and proceedings in the Division Courts : 
 Provided, that nothing herein contained shall be 
 held to authorize the taxation or allowance of costs 
 to any officer of the Court, other than those to be 
 
 i 
 
■I 
 
 Sec. 7.] 
 
 DIVISION COURTS ACT, 1882. 
 
 
 
 found in the tariff of fees as authorized and aHgWe^ «;y 
 by "the Board of County Judges," under the p«Qj^^y < 
 visions of this or any other Act." ^^'-^w 
 
 The words here added may be the means, by 
 express prohibition on Clerks, of preventing 
 them taxing something not in the tariff of fees. 
 Otherwise, it was entirely unnecessary. The 
 right of either party to costs, did not fonii 
 any part of the common law. The right to them 
 is entirely of Statutory creation : Gray on Costs, 1. 
 In the Division Court, the power to award costs is 
 given to the Judge by the 154th section of the 
 Division Courts Act, and the power to fix a table 
 of fees for the ofiicers of the Court, is conferred 
 on "The Board of County Judges" by the 238th 
 section of that Act. The right to tax any fees 
 beyond those allowed by the table of fees was 
 therefore illegal and improper, independently of 
 this section. In re Poussett and the General Quarter 
 Sessions of Lambton, 22 U. C. R. 412. In re Dart- 
 nell and The General Quarter Sessions of Prescott 
 and Russell, 26 U. C. R. 430. As to the general 
 application of the 244th section of the Division 
 Courts Act, see, In re Fletcher v. Noble, 9 P. R. 255 ; 
 Clarke v. Macdonald, 4 Ont. R. 310; Maenee v. 
 Ontario Bank, 19 L. J. N. S. 252. 
 
 1 
 
 ^ 
 
 ' ' ill 
 
 ti 
 
 BWJ 
 
NOTES OF 
 
 LATE CANADIAN CASES 
 
 ON THE SUBJ ECT OF DIVISION COURT 
 
 LAW. 
 
 ^- iff 
 
 Jui^diction— Cause of ActuytL—WhevQ a person 
 having a return ticket for a passage from one 
 place to another on a railway line is illegally put 
 off the train at an intermediate point, the cause 
 of action for such expulsion arises at this latter 
 place, and not where the ticket is issued. Also, 
 that a railway company cannot be said to " reside 
 or carry on business " except where their head office 
 is situated. Ralph v. G. W. Ry. Co., 14 L. J., N. S., 
 172, per Elliott, Co. J. [See Canada Southern Ry. 
 Co. V. Gehhard, 109 U. S. 527 Sup. Ct] 
 
 Bailies Fees on Execution. — By section 51 of the 
 Division Courts Act a Bailiff is not bound to act 
 on an execution unless his fees are prepaid or 
 tendered him, but if he takes the execution 
 without exacting such fees, he is held responsible 
 for his action on such execution, as if such fees 
 had been prepaid. Bank of Ottawa v. Smith, 16 
 L. J., N. S. 223, per Lyon, Co. J. J. 
 
 Ganmhinent of Clerks.— ¥oy a discussion of this 
 
LATE CANADIAN CASES ON D. C. LAW. 
 
 89 
 
 subject see 16 L. J. N. S. 
 Andrews, 45 U. C. R. 431. 
 
 aS6. Also, Bland v. 
 
 Summons— 7\nie of Sennce. — In a Division Court 
 suit a defendant was served one day too late for 
 the ensuing sittings, and did not attend. The 
 Division Court Judge ruled that the defendant 
 by entering a dispute note had shewn that he 
 knew when the trial would come on, and that he 
 should, therefore, have attended, and gave judg- 
 ment for the plaintiff with costs. Held, that the 
 defendant was entitled to full notice of the trial, 
 and that prohibition should issue. Zaritz v. Mann, 
 16 L. J. N. S. 144, per Armour, J. [See also Barker 
 V. Palmer, 8 Q. B. D. 9 ; Hudson v. Tooth, 3 Q. B. D. 
 46, and pages 61 and 62, ante\. 
 
 Transcript to County Court. — For some remarks 
 on the effect of the decision of Burgess v. Tully, 24 
 C. P. 549, in requiring an execution to be first issued 
 from a Division Court before transcript to County 
 Court, see 16 L. J. N. S. 307. 
 
 Jurisdiction— Act of 1880. — The defendant bought 
 an article from plaintiff and signed an agreement 
 to that effect, which concluded thus : " Which I 
 agree to take at $100 and settle for as follows : give 
 my note for $20, payable January, 1881 (and then 
 describing three other notes amounting in all to 
 $90), and an old machine to be taken at $20." Held, 
 that the claim was a money demand, and that the 
 amount of the claim was ascertained by the signa- 
 ture of the defendant, within the meaning of 
 section 2, of the D. C. Act of 1880: Stetjuart v. 
 
 i 
 
 t i 
 
 In 
 
 V. 
 
 rl; 
 

 I 
 
 90 
 
 JiATE CANADIAN CASES ON D. C. LAW. 
 
 Forsyth 17 L. J. N. S. 87, per Elliott, Co. J. [It is 
 submitted with all due respect, that in view of the 
 recent cases of Wiltsie v. Ward, 8 App. R. 549, and 
 Forfar v. Climie, 20 L. J. N. S. 17, this case cannot 
 be considered authority.] 
 
 Jurisdiction— Act of 1880. — An action was brought 
 to recover a balance of over sBlOO and less than $200, 
 upon a promissory note which had been protested, 
 and it was therein held, that the action was 
 properly brought in the Division Court, even 
 though the notarial fees fonned a part of the 
 amount claimed by the plaintiif : Burns v. Rogers, 
 17 L. J. N. S. 209, jyer Macdonald, Co. J. [See, also, 
 McOrackm. v. Oreswich, 8 P. R. 501 ; In re Widmeyer 
 V. McMahm, 32 C. P. 187.] 
 
 Counsel Fees in Division Court. — For some remarks 
 on this question, see 17 L. J. N. S. 135. 
 
 Mechanics' Lien — Proper Division. — Where a 
 mechanic's lien is within the jurisdiction of the 
 Division Court, the summons should be issued and 
 the order made in that division in which the 
 cause of citation arose or the defendant lives : Burt 
 V. Wallace, 17 L. J. N. S. 70, per Dartnell, Co. J. J. 
 
 Jurisdiction— Cause of Action.— The defendant 
 applied by written application, signed at Wiarton, 
 in the County of Bruce, for a loan from the plain- 
 tiffs which was not carried through. The plaintiffs 
 head office was at London, Ontario. The plaintiffs 
 brought an action at London to recover from the 
 defendant the costs paid to their solicitor for 
 drawing mortgage, investigating title, etc. The 
 
liATE CANADIAN CASES ON ^\ C. r,AW. 
 
 91 
 
 defendant applied under section 11 of the I). C. 
 Act of 1880. to have the caune transferred to the 
 Division Court at Wiarton. Held, that the Division 
 Court at London had no jurisdiction, and that the 
 cause should be transferred : English Loan Co. v. 
 Harris, 17 L. J. N. S. 171, i^er Klliott, Co. J. 
 
 Division Omirt Transcnpt. — A Division (.ourt 
 transcript set out the pro( feedings and judgment 
 against two defendants, the issue of execution in 
 the Division Court, return of execution, money 
 made partly of the goods of one defendant and 
 partly of the goods of the other, and alleged that 
 one defendant was surety for the other, and that 
 the plaintiff had assigned the judgment to the 
 alleged surety. The executions in the County Court 
 were against one defendant only— the alleged prin- 
 cipal. Held, that the transcript and executions 
 were irregular, and should be set aside : McClure 
 V. Farley, 17 L. J. N. S. 172, per Macpherson, Co. J. 
 
 Boim iide Holder of Note far Value— Action on. — 
 For discussion of this question, see, 17 L. J.N. S. 210. 
 
 Securities with Clerk foi' Suit—Tha safest course 
 is for the Clerk to preserve safely the security and 
 annex copies of it to the summons and copy : 17 
 L. J.N. S. 352. 
 
 Territorial District— Act of 18S0.—The Division 
 Courts Act, 1880, does not apply to the Division 
 Courts in Territorial Divisions and Unorganized 
 Tracts, and a prohibition was ordered to restrain a 
 Stipendiary Magistrate from adjudicating upon 
 
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 LATE CANADIAN CASES ON D. C. LAW. 
 
 a claim on a promiswory note for ^110. In re Ontario 
 Bank V. Harstmu 17 L. J. N. S. 88. [But now see 
 45 Vict., chap. 71. 
 
 Security f(yr Costs.— li was held, that under 
 section 244 of the Division Courts Act, a Judge of 
 a Division Court has power to order security for 
 (rosts : In re Fletcher v. Noble, 9 P. R. 255 ; 
 18 L. J. N. S. 871, 2 C. L. Times 556. [He will not 
 do so where there is no defence : De St. Martin v. 
 Davis. W. N. 1884, p. 86.] 
 
 Judgment Summons. — A discussion on the mean- 
 ing of "sufficient means and ability to pay" within 
 section 182, sub-section 5 of the Division Courts 
 Act, will be found in 18 L. J. N. S. 390. [See, also. 
 Re Moss, 29 Grant, 885 ; Villon v. OunningJiam, L. R. 
 8 Ex. 23 ; Chard v. Jei'vis, 9 Q. B. D. 178 ; Esdaile v. 
 Visser, 13 Cli. D. 421 ; Harper v. Scrimgeour, 5 C. P. D. 
 366 ; Newell v. Van Praagh, L. R. 9 C. P. 96]. 
 
 Jurisdiction— D. C. Act of 1880. — An action was 
 brought in the First Division Court for the County 
 of York, for $175 due the plaintiff, as he alleged, 
 under agreement, and sufficiently ascertained by 
 the signature of the defendant. The defendant, 
 however, brought the whole agreement into Court 
 and resisted the action on the ground that there 
 was a breach of warranty of certain articles 
 operated upon by the agreement for v^hich the 
 $175 was part of the purchase money. A prohibi- 
 tion was moved for on the ground ihat there was 
 no jurisdiction to try a question <A breach of war- 
 ranty where a sum exceeding $100 was in dispute. 
 
^■^ 
 
 'iff 
 
 LATE CANADIAN (3A8ES ON D. C. LAW. 
 
 98 
 
 
 Cameron, J., Kranted a prohibition, unless the 
 parties agreed to remove the ciase by certiorari 
 without costs : Re Lindmy v. Morrinmi, is I^. J. N. S. 
 444. 
 
 Power of Judge to Strike Out Defence Before 
 Trial.— An action was brought for money lent by 
 the plaintiff to the defendant. The defendant in 
 proper time filed a notice of defence. The i)laintiff 
 applied for an order similar to that provided for by 
 Rule 80, of the Ontario Judicature Act. It was 
 held, that by virtue of section 244, of the Division 
 Courts Act, the Judge has power wiiere the 
 plaintiff satisfies the Court of his belief in the 
 justice of his claim, and the defendant is unable to 
 satisfy the Court of the merits of his defence, to 
 make an order striking out the defence, and 
 empowering the plaintiff to sign judgment without 
 a formal trial of the action : Burk v. Brittain, 19 
 L. J. N. S. 74, per Clark, Co. J. [This case has been 
 followed in Smith v. Lawler, 19 L. J. N. S. 258, by 
 Dartnell, Co. J. J., and by Macdonald, Co. J., in 
 Conners v. Birminaham^ 20 L. J. N. S. 10, but has not 
 been followed in Cowan v. McQuade^ 19 L. J. N. S. 
 108, by Dean, Co. J., and by some other County 
 Judges in unreported cases. For discussion of the 
 subject, see, 19 L. J. N. S., pages 99-119-238. It is 
 submitted, that in view of the recent cases of Bank 
 of Ottawa V. McLaughlin, 8 App. R. 548, and Clarke 
 V. Macdmmld, 4 Ont. R. 310, that it is more than 
 doubtful if power to make this order in Division 
 Court cases exists. See, also, In re Willing v. Elliot 
 37 U. C. R. 320]. 
 
 I 
 
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94 
 
 LATE CANADIAN CASES ON D. C. LAW. 
 
 M 
 
 Prohibition— Bule :i8r, of Jud. Act— Aw order 
 wa.H made in the Division Court, under Rule 285 of 
 the Ontario Judicature Act, for the examination 
 of a witness de bene esse, and the Judge in that 
 C/Ourt dismissed a aubseciuent motion made by the 
 plaintiff to set it aside. The plaintiff then moved 
 for an order for a writ of prohibition to prohibit 
 the said Division Court proceeding, and admitting 
 at the trial the evidence taken under the order, on 
 the ground that the County Judge had not any 
 jurisdiction to make the order. Held by Armour, J., 
 that County Judges may, in their discretion, apply 
 the Rules of the (). J. A. to the Division Courts, 
 and that the County Judge had in this case juris- 
 diction to make the order complained of : Macnee 
 V. Ontario Bank, 19 I^. J. N. S. 252, 3 C. L. Times 360. 
 [But see. Bank of OntaHo v. McLaughlin, 8 App. R. 
 543, and Clarke v. Macd<mald, 4 Ont. R. 310]. 
 
 Appeal under D. C. Act, 1880, S. SO— -A justice 
 of the peace has no power to entertain a case of 
 master against servant for non-fulfilment of agree- 
 ment to work, and an order in such a case, declaring 
 that the servant pay a sum of money therefor, or in 
 default to be committed to goal at hard labor, was, 
 on appeal to the Division Court, quashed with 
 (^osts, as being against 40 Victoria, Chap. 35 (Dom.) 
 Brown v. Binkley, 18 L. J. N. S. 259, per Walker, 
 Deputy J., Wentworth. [Justices of the {)eace have 
 pow er under Provincial legislation to impose hard 
 labor with imprisonment, notwithstanding previous 
 cases in our own courts to the contrary. Hodge v. 
 The Queen, 9 App. Cas., 117.] 
 
'1 
 
 LATE CANADIAN CASES ON D. C. LAW. 
 
 95 
 
 Counter-Claim. — An action wan bronfi:lit for 
 wages. The defendant filed a notice disputing the 
 (;laini, and put in a counter-claim for damages for 
 breach of contract, by reason of plaintiff's leaving 
 his employment. It was held that the defendant 
 had a right to put in the counter-claim, and, on the 
 hearing, judgment was given for the defendant, Avith 
 costs. A^vheiTy v. McLean, 19 Ij. J. N. S. 885, per 
 Macdonald, Co. J. 
 
 Deputy Judge — Powers o/.— The defendant was 
 convicted of perjury alleged to have been commit- 
 ted in a cause tried at a Division Court held by 
 Adam Hudspeth, Esq., under a connnission issued 
 by the Governor-General in Council, appointing 
 him Deputy Judg*^ of the County Court of the 
 County of Victoria, during pleasure and the 
 absence of the County Judge, under the leave of 
 absence granted to him by an Order in Council. 
 Held, that it was not ne(5essary for the Crown to 
 prove the Order in Council granting the leave of 
 absence for it*? existence, and that the commission 
 had not become e,fete by lapse of time, would be 
 presumed in accordance with the general i)resump- 
 tion of law, that a person acting in a public capac- 
 ity was properly appointed and duly authorized to 
 act, and the onus of showing the contrary is on the 
 defendant. Held also, that the (commission was 
 valid under R. S. O., Chapter 42, and that it was not 
 essential that the County Judge should be absent 
 from the County, in order to enable the Deputy 
 Judge to act. R. v. Fee, 19 L. J. N. S. 248 ; 8 Ont. 
 R. 107. 
 
 
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 LATE CANADIAN CASES ON D. C. LAW. 
 
 Practice Under Judicature Act— Nonsuit. — The 
 Division Courts so far as they have machinery, 
 should grant the substantial redress or remedy 
 that the High Court could grant, but the practice 
 of the High Court under the Rules, except Rule 
 489, does not apply ex vi termini to Division Courts. 
 
 The discretion conferred by section 244, D. C. Act, 
 to introduce Superior Court practice, can only be 
 exercised in cases unprovided for by the D. C. Act 
 and Rules of Court thereunder. 
 
 ffeld, that as the Division Courts Act provides 
 for the granting a nonsuit, the meaning of which, 
 at the time of passing the Act, was a default only 
 and did not prevent the plaintiff bringing a fresh 
 action. Rule 330 of the Judicature Act, which 
 makes a nonsuit a judgment on the merits, does 
 not apply to the Division Court, nor is it a case for 
 the exercise of the discretion allowed by section 
 244 of the D. C. Act : Building and Loan Association 
 V. Heimrod, 3 C. L. Times 361, 19 L. J. N. S. 254, ^^e?- 
 Macdougall, Co. J. [See, also, In re Willing v. Elliot, 
 37 U. C. R. 320 ; Clarke v. Macdonald, 4 Ont. R. 310 : 
 Pryor v. City Offices Co., 10 Q. B. D. 504 ; Davis v. 
 Great Eastern Ry. Co., 39 L. T. N. S. 635 ; Bank of 
 Ottawa V. McLaughlin, 8 App. R. 543. J 
 
 Wai'rant of Committal — Renewal. — Errors in 
 dates and recitals in warrants of commitment can 
 be amended by the Judge, under Rule 118. 
 
 The omission of the Bailiff to endorse upon the 
 warrant the number of miles, and the amount of 
 
 iui 
 
LATE CANADIAN CASES ON D. C. LAW. 
 
 97 
 
 mileage required to be done under Rule 103, will 
 not vitiate it. 
 
 The warrant wan renewed by Judge'8 order more 
 than three montliH after it w as issued and dated, 
 and it was held the renewal was properly made, 
 and that the warrant was in force : Fleming v. 
 Dick 19 L. J. N. S. 290, per Dartnell, Co. J. J. [If 
 this case is correctly reported, it is submitted that 
 the last point is not properly decided. A warrant 
 of committal that has expired, cannot be renewed. 
 It is only a live warrant that can be renewed : 
 Weston V. Thomas, 6 U. C. L. J. 181 ; Gardiner v. 
 Juson, 2 E. & A. 188. Drake on Attachment, 187 : 
 Barker v. Palmer, 8 Q. B. D. 9 ; Ex parte Williams, 
 Re Jones, 46 L. T. N. S. 237 ; Neilson v. Jai-vi% 13 C. P., 
 at page 182 ; Doyle v. Kaufman, 3 Q. B. D. 7]. 
 
 JurisdiMion — Abandonment of Part. — A motion 
 was made for prohibition to the 8th Division Court 
 for the County of York. The plaintiff brought his 
 action in the Division Court, claiming !i^42.06 debt 
 and 169.33 damages, and at the end of his claim 
 wrote these words : " Plaintiff abandoned, >j^ll.39."" 
 Held, that it could not be assumed the plaintiff by 
 his claim reduced his demand for damages so as to 
 bring it within the jurisdiction of the Division 
 Court, as there were other claims in respect of 
 which such abandonment might presumably be 
 applied as well as to the demand for damages : 
 Meek v. Scobell, 19 L. J. N. S. 394 ; 3 C. L. Times 
 594, per Wilson, C. J. Sustained on appeal, 4 Ont. R. 
 553. The nature of the (^laim, as appearing on the 
 summons, is the claim recognizable on a motion for 
 prohibition. — lb. 
 
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 98 
 
 L\TE CANADIAN CASES ON D. C. LAW. 
 
 
 
 
 
 
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 Jurisdiction— Cause of Action.— A motion was 
 made for a prohibition to a Division Court of the 
 County of Carleton. The plaintiff lived at Ottawa, 
 and the defendants' (corporation had its head office 
 at Hamilton, in Wentworth. The plaintiff made a 
 mortgage to the defendants, and a dispute arising 
 between the plaintiff and the defendants as to the 
 amount of interest to be paid thereon, the defend- 
 ants claimed the full interest according to the 
 mortgage and desired the plaintiff to remit it by 
 mail to their office at Hamilton, which the plaintiff 
 refused to do. The defendants then began pro- 
 ceedings under the power of sale contained in their 
 mortgage, and also an action for the recovery of 
 the land, whereupon the plaintiff paid the money 
 to his solicitor in Ottawa, and the latter sent it 
 under protest, to the defendants' solicitors in 
 Hamilton, who in turn, paid it to the defendants 
 in Hamilton. This action is brought in the 
 Division Court, in Ottawa, for the recovery of the 
 money so paid under protest. 
 
 Held, that when the plaintiff made the payment, 
 by reason of the action against him,the defendants' 
 former direction to pay by deposit of the money in 
 the Ottawa post-office, waft superseded, and th'^ ': 
 the payment having been made by the plaintiff in 
 Hamilton, the whole cause of action did not there- 
 fore arise at Ottawa, and prohibition was granted 
 with costs : Me Garland v. Omnium Securities Co., 
 19 L. J. N. S. 395 ; 3 C. L. Times 595. 
 
 Jujisdiction—D. C Act, 1880. — This was a motion 
 for prohibition. The action against which prohibi- 
 
TiATR CANADIAN CASES ON D. C. LAW. 
 
 99 
 
 ■ ;i 
 
 tion was sought was upon the following order : 
 " Mr. Thos. Forfar :~Please ship us your old boiler 
 and engine, to be in good shape, to our address, 
 not later than June 7th, 1883, for the sum of $115, 
 and shafting.— G. Climie & Son." Held, that this 
 order did not ascertain the amount due in such 
 way as to bring the case within the increased 
 jurisdiction of the Division Court (following the 
 (rase of Wiltsie v. Ward, 8 Ap]\ R. 549) ; Forfar v. 
 Olimie, 20 L. J. ^.R\7. 
 
 Jurisdiction— Set-off. — The plaintiff brought his 
 acrtion in a Division Court for $74.31, his claim 
 being $156.36, an unascertained amount as against 
 which he admitted a set-off of $82.05. At the trial 
 in the Division Court the plaintiff affirmed and the 
 defendant denied that there had been an agree- 
 ment between them to set-off against the plaintiff's 
 claim the value of certain purchases made by the 
 plaintiff from the defendant, and the Judge at the 
 trial found, as a matter of fact, that there had been 
 such an agreement. A prohibition was moved for. 
 Held (following Fleming v. Livingstone, 6 P. R. 63, 
 and Dixon v. Snarr, 6 P. R. 336), that it was a ques- 
 tion of fact for the Judge of the Division Court to 
 detennine whether or not there was an agreement 
 between the plaintiff and defendant, and the Judge 
 having determined that there was an agreement, 
 there was jurisdiction, and prohibition was 
 refused. In re Jenkins v. Miller, 20 L. J. N. S. 30, 
 per Cameron, J. 
 
 No Power to Add Defendants.— The plaintiff 
 brought an action against one of two co-partners 
 
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 LATE CANADIAN CA8ES ON D. C. LAW. 
 
 I, 
 
 upon a i)romiHsory note made in the firai name for 
 a partnerf^liip debt. The partner not joined was 
 within the jurisdiction at the time the action was 
 commenced. Held, that under the Rules of the 
 Division Court, there was no authority to add the 
 partner not sued. 
 
 Held, also, that the adding of a defendant was 
 not a principle of practice of the Courts of Common 
 Law, and not a case for the exercise of the Judge's 
 discretion. The case of Building and Loan 
 Association v. Ileimrod, 19 L. J. N. S. 254, followed, 
 and Rules of the Judicature Act held not in force 
 in the Division Court: Barber v. Bingham, 20 
 L. J. N. S. 65, j^er Macdougall, Co. J. J. [See Rennison 
 V. Walker, L. R. 7 Ex. 143, and the new Rules of 
 Practice]. 
 
 Exemption in Division Courts. — A judgment 
 debtor who had been examined as such, and who 
 then swore that he had no chattels or any interest 
 5 r^ such : Held, estopped from afterwards making 
 i,.. I, to a joint interest in certain farming imple- 
 
 Ciiattels jointly owned or held in partnership, are 
 not exempt from seizure and sale under an execu- 
 tion against one of such joint owners or partners : 
 Lawson v. Latvson, 20 L. J. N. S. 72,^e7'Dartnell, Co. 
 J. J. 
 
 [The case does not state whether or not the 
 claim concerning the joint interest in the farming 
 implements was between the same parties, or 
 
LATE CANADIAN CASES ON D. C. LAW. 
 
 101 
 
 whether the ()])i)OBite party acted upon such state- 
 ment to his prejudice. If neither, then it is sub- 
 mitted, there could be no estoppel : Freeman v. 
 Cooke, "i Ex. 654, .and the numerous intermediate 
 cases on estoppel in pais down to McKenzie v. 
 British Linen Co., 6 App. Cas. 82 ; Nerlich v. Malloy, 
 4 App. R. 430.1 
 
 Arbitrat07''s Fees — No Award. — Where a corpora- 
 tion brought an action for arrears of taxes, and 
 defendant claimed a set-off of arbitrator's fees for 
 acting as third arbitrator in an arbitration under a 
 by-law passed by the i)laintiffs : Held, in an action 
 in the Division Court, that as no award had been 
 made, no action would lie, either at common law 
 or under our Statute (R. S. Ont., Chapter 64, section 
 12) to recover arbitrator's fees. Brochtmi Corp. v. 
 Denison, 20 L. J. N. S. 86, per Macdougall, Co. J. J. 
 
 AioaTd—How Executed.— h\. order to make a valid 
 aw^ard by three arbitrators, they must execute 
 the award in presence of each other and not separ- 
 ately, even if they had previously agreed upon the 
 award. Nott v. Nott, 20 L. J. N. S. 125. [See also 
 Wade V. Dowling, 4 E. & B. 44 ; Stahvorth v. Inns, 
 2 D. & L. 428 ; Anning v. Hartley, 3 H. & N. 929, 
 (Amer. Ed.) ; Helps v. Roblin, 6 C. P. 52 ; Anglin v. 
 Nickle, 30 C. P. 72 ; Ee Hubbard y. Union F. Ins. Co., 
 44 U. C. R. 391 ; I). C. Act, section 147.] 
 
 Jurisdiction— Act of 1880.— An assessment on a 
 premium note made to a mutual fire insurance 
 company, where the original amount of the note 
 was above $200, and the amount of the assessment 
 
1C2 
 
 LATE CANADIAN CASES ON D. C LAW. 
 
 was $155.96, was held not recoverable in the Divis- 
 ion Court as not being an " air^certained " amount 
 within the Division Courts Ac^t of 1880, section 2. 
 Manufacturers and Merchants M. F. Ins. On. v. 
 Campbell^ 1 C. L. Times l.-U, per Sinclair, Co. J. 
 
 Judge's Notes.— T\\m was an interi)leader issue to 
 try the riprht to certain chattel property, the value 
 of which exceeded $10(). Held, that section 5 of the 
 Division Courts Act of 1880 only required the 
 Judge to take down the evidence in writing, where 
 the sum sought to be recovered exceeded §1(X), 
 and did not apply to interpleader issues. Bank 
 of Montreal v. Stattan, 1 C. L. Times ^,per Sinclair, 
 Co. J. [But see 47 Victoria, Chap. 10, sections 9 and 
 10 ante, page 45.] 
 
 Transfer of Cause. — An action for ^129 was 
 brought under the Division Courts Act of 1880, 
 upon a note payable at Sault St. Marie, Michigan, 
 in the 8th Division Court, of the County of York. 
 On the 4th of December, 1882, an order was made 
 on the application of the plaintiff, transferring 
 the action to the 8th Division Court of Simcoe. 
 
 Held, that prohibition should issue to the latter 
 Court ; for a cause can only be transferred under 
 sections 9 and 11 of the Division Courts Act of 
 1880, when it has been entered in the wrong Court 
 by mistake or inadvertence, neither of which facts 
 appeared here. 
 
 Held, also, that an order of transfer can only be 
 made under section 9, on the application of a 
 
LATE CANADIAN CASES ON D. C. LAW. 
 
 103 
 
 defendant, but under section 11 it can be made on 
 the plaintiff's application : Hands v. Noble, 3 C. L. 
 Times, 215. 
 
 Interpleader — Notice of Claim.— K mare, (5olt and 
 (;ow were seized under an execution from the 4th 
 Division Court of the County of Simcoe. A claim 
 was made to all the animals seized. The Bailiff 
 (caused an interpleader summons to be issued, but by 
 mistake the cow was omitted from the summons, so 
 that the execution creditor came prepared to con- 
 test the claimant's right to the mare and colt only. 
 It was objected at the hearing, that no particulars 
 of the claimant's claim had been filed, as required 
 by the 88th and 89th Rules of the Division Court, 
 and that the claimant being an infant, should have 
 pro(;ured the appointment of a next friend, under 
 Rule 126, and it was contended by the execution 
 creditor, that these Rules not having been complied 
 with, the Judge had no jurisdiction. These objec- 
 tions were overruled and judgment was given for 
 the claimant upon his (;laim to the mare and colt. 
 Then another member of the claimant's family 
 appeared for the first time, and made claim to the 
 cow, and the Judge adjudicated upon this claim 
 also, without any notification to the execution 
 (creditor other than such as he received at the trial. 
 
 On motion for prohibition at the instance of the 
 execution creditoi* ; Held, by Gait, J., (following 
 Fee V. Mcllhargey, 9 P. R. 829,) that the failure to 
 (5omply with the Rules of Practice mentioned, had 
 not the effect of ousting the jurisdiction of the 
 
104 
 
 LATE CANADIAN CASES ON D. C. LAW. 
 
 !■ 
 
 Division ('oiirt, and the motion wan refused: 
 Re Foster v. Hough, {not yet repwted) 
 
 Action on County Court Judgment. — An action is 
 not maintainable in a Division Court on a judg- 
 ment in the County ('ourt : Re Eberts v. Brooke, 
 20 L. J. N. S. 175. 
 
 Names of Defendants. — The names of all the 
 defendants in a Division Court acjtion should 
 appear in the summons ; the provisions of the 
 Judicature Act in respec^t to defendant firms, not 
 applying to Division Court suits : Clarke v. Mac- 
 donald, 4 Ont. R. 310. [But now see new D. C. 
 Rules on that subject.] 
 
 Interpleader Suit — Judge's decision to be ^nal. — 
 The plaintiff, a Division Court Bailiff, having seized 
 a quantity of wheat under a warrant of execution 
 against one P., which the defendant claimed, an 
 interpleader sunnnons issued, and on its return was 
 adjourned with leave to the defendant to file his 
 claim in fifteen days. Afterwards the case came 
 up for final hearing, when the Judge made this 
 order : " The (daimant not having put in his claim 
 or (5omplied with the order above made, is barred, 
 and is ordered to jjay the costs in fifteen days." 
 The plaintiff, as such Bailiff, brought this action to 
 recover the wheat which the defendant had ob- 
 tained possession of pending the summons : Held, 
 on appeal (affirming the decision of the County 
 Court Judge), that the minute so made by the Judge 
 in the interpleader issue was equivalent to stating 
 that the claim was dismissed, and was final and 
 
LATE CANADIAN CASES ON D. C. LAW. 
 
 105 
 
 (5()iicluHive iii)oii the defendant, and that he couhl 
 not be heard to nay that the Bailiff had not weized 
 the wheat: Hunter' v. Vanstone, 7 App. R. 750. 
 [See also Mason v. Wirral Highway Board, 4 Q. B. D. 
 459.] 
 
 Dejmty Judge— Poimr 6»/.— Under the authority 
 of the following deputation :— " Belleville, Ont., 
 24th July, 1880.— I hereby appoint E.B. Fralick, Eh(|., 
 barrister-at-law, as my deputy, to hold the Second 
 Division Court of the County of Hastings, on 
 Monday, the 26th day of July, instant, at the Town 
 Hall, in the Township of Sidney.— T. A. Lazier, 
 Junior Judge, C. H." ; the person therein named 
 tried this case at the time and plaf;e appointed, 
 but delivered his judgment, according to a post- 
 ponement for that purpose, on the 2nd of 
 August following, at the Judge's Chambers in 
 Belleville, Ont., outside the limits of the Second 
 Division, but within the County, without having 
 named a day and hour for delivery thereof, in 
 writing, at the Clerk's office. 
 
 Held, (1) That the word "Judge" in the 20th 
 section of the Division Courts Act, includes the 
 Junior Judge, and that the deputation was there" 
 fore valid. (2) That the proper construction of the 
 deputation was " to hold the Second Division Court 
 of the County of Hastings, to be holden on Mon- 
 day, etc," and that his appointment continued until 
 he had performed the purpose for which it was 
 made. (3) That the effect was to clothe Mr. Fralick 
 with all the powers of the Junior Judge during 
 the time of his appointment, wherever he might be 
 
KXi 
 
 LATE CANADIAN CASES ON D. C. LAW. 
 
 within tliH County, and the ruU; wan therefore! made 
 abHolute to rescind the order made by Gait, J., for 
 a prohibition : In re Leibes v. Wanh 45 U. C. R. ;J7r). 
 
 Liability of Clerh fm- Motiey lieceived. — The 
 defendant, Clerk of a Divinion Court in the County 
 of York, sent a transc^ript of the entry of a judK- 
 ment recovered therein by the i)h'iintiff, to one M., a 
 Division Court Clerk, of the County of Essex, with 
 directions to remit the money by post-office order, 
 or by cheque. M. having re(;overed the money, paid 
 it into his private a(5Count at McG. Bros., private 
 bankers, and sent their ('hecjue to the defendant 
 for the amount, as he had been a(5customed to do, 
 which the defendant acknowledged in the follow- 
 ing words : " McLeish v. Richards : Receivtnl frtmi 
 the D. C. Clerk, Windsor, $70.40." Before the 
 che(iue was presented McG. Bros, failed, and the 
 plaintiff sued the defendant for the money. Held, 
 reversing the judgment of the County Court, that 
 the cheque and receipt operated as payment 
 between M. and the defendant, and that the plain- 
 tiff was entitled to recover the money from the 
 defendant as money received to his use. Held, also 
 following Dale v. Cool, 6 C. P. 544, that no notice of 
 action was necessary ; McLeishv. Hmvard, 3 App. R. 
 503. 
 
 False Return by Bailiff. — To an action against a 
 Division Court Bailiff and his sureties for neglect 
 to execute a writ or return it in due time, and for 
 a false return, the defendants pleaded that the 
 execution was not enforced, owing to a threat by 
 
L\TK CANADIAN CASES ON D. C. LAW. 
 
 107 
 
 tlu5 priiK-ipal (Teditoi'H of the debtor to place him 
 ill iiiHolvc^icy if it wan proceeded with, and that 
 while tin; goody were beiiip: advertised for nale an 
 attac-hnient in insolvency was issued aiurainst the 
 debtor, and the plaintiff suffered no damage in 
 conse((uence of the breaches alleged. At the trial 
 the .jury were dire(5ted to find a verdict for the 
 defendants, on the ground that this plea and 
 another had been proved. 
 
 Held, reversing the judgment of the County 
 Court, that it was for the .jury and nat for the 
 Judge to say whether the Bailiff's inaction had 
 (caused the plaintiff's damage, and a new trial w^as 
 was therefore ordered. 
 
 Also, that under section 221 of the Division 
 Courts Act, the plaintiffs w^ere entitled to nominal 
 damages upon proof of a breacli of duty without 
 showing any a(;tual damage. 
 
 Before the commencement of this action, the 
 plaintiffs had taken summary proceedings against 
 the Bailiff for neglecting to levy, under section 
 220, when their complaint was dismissed. 
 
 Held, no bar to this action, which was brought 
 under section 221 : Nerlich v. Malloy, 4 App. R. 430. 
 
 Jurisdiction under Act of 1880.— Tlie plaintiff 
 sued on a promissory note for $158, payable with 
 interest at ten per cent., the principal and interest 
 amounting to $185.65. 
 
 Held, (following McCracken v. Creswick, 8 P. R. 
 501), that under the Division Courts Act of 1880, the 
 above claim could be recovered in the Division 
 Court : In re Widmeyer v. McMahon, 32 C. P. 187. 
 
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 ii 
 V. 
 
108 
 
 LATE CANADIAN CASES ON D. C. LAW. 
 
 
 Grouping of Counties— Pmmrs of Judge. — Pursuant 
 to the Local Courts Act, R. S. O., Chapter 42, section 
 If) and following: sections, the Counties of Middle- 
 sex and Lambton were proclaimed by the Lieuten- 
 ant-Governor as a County Court District. By 
 section 17, in such a District the several County 
 Courts, Division Courts, <fec., shall be held by the 
 Judges in the District in rotation. By the Division 
 Courts Act, section 19, the Division Courts shall be 
 presided over by the County Court Judges in their 
 respective Counties. An order for the committal 
 of the defendant was made by the Judge of the 
 County Court of the County of Lambton, sitting in 
 a Division Court in the County of Middlesex, 
 under the provisions of the Local Courts Act. A 
 motion for prohibition was made on the ground 
 that the enactment was ultra vires. Held., Armour 
 J. dissenting, that the Provincial Legislature has 
 complete jurisdiction over the Division Courts, 
 incluung the appointment of officers to preside 
 over ti^em : that the learned Judge acted in the 
 Middlesex Division Court as one of the persons 
 designated by the Legislature to preside over it, 
 and having regard to the enactment in question, 
 solely in its bearing on Division Courts, it was not 
 ultra vires. In re Wilson v. McGuire, 2 Ont. R. 118. 
 
 Notice of AGtion.~T\\Q 231st section of the 
 Division Courts Act enacts that any action or 
 prosecution against any person for anything done 
 in pursuance of the Act, shall be commenced within 
 six months after the fact was committed, <fec., and 
 notice in writing of such action and of the cause 
 
LATE CANADIAN CASES ON D. C. LAW. 
 
 109 
 
 thereof »hall be given to the defendant one month, 
 at least, before the commencement of the action. 
 Held (1) That personal service was not re(iuired, but 
 that service on the wife at the defendant's residence 
 was sufficient. (2) That the Court in which the 
 action is to be brought need not be stated in the 
 notice ; but even if required, semble, that the 
 statement in the notice that the action would be 
 brought in the High Court of Justice, without 
 naming the particular Division w^as sufficient. (8) 
 That in computing the time in which the action 
 must be brought, the day on which the fact was 
 committed must be excluded, so that an action 
 (commenced on the 5th of June for an act (*ommitted 
 on the 5th of December was in time. Hanns v. 
 Johnson, 3 Ont. R. 100. [See, Allen v. McQuai'rie, 
 44 U. C. R. 62, Neill v. McMillan, 25 U. C. R. 485, 
 Maxwell on Statutes, 174]. 
 
 Liability of Clerics Sureties.— Aftev the defend- 
 ants had become sureties for a Division Court 
 Clerk, a special arrangement was made between 
 the plaintiffs and the Clerk, under which the 
 latter was to receive no costs but disbursements 
 only in all suits entered with him by the plaintiffs, 
 in whi h nothing was realized, and he on his part 
 guaranteed that the Court had jurisdiction. This 
 was subsequently varied by giving to the Clerk 
 fifty cents in addition to the disibursements in such 
 suits. Periodical statements were made from time 
 to time, according to the agreement, and a cheque 
 given for the balance thus shown. It was after- 
 wards discovered that the statements were incor- 
 
 I 
 
no 
 
 LATE CANADIAN CASES ON D. C. LAW. 
 
 rect, and that moneys collected by the Clerk had 
 not been paid over. 
 
 Held, that the special agreement made with the 
 Clerk discharged the sureties. 
 
 Held, also, that the periodical statements were 
 not conclusive as against the plaintiffs. 
 
 The cases deciding that entries in the books of 
 an officer are evidence in his lifetime against 
 sureties questioned : Victoria Mutual Fire Ins. Co. 
 V. Davidson, 3 Ont. R. 378. [On the latter point, 
 also, see Carmarthen and Cardigan Ry. Co. v. 
 Manchester and MUford Ry. Co., L. R. 8 C. P., at 
 page 691, per Bovill, C. J. ; Invin v. Corporation of 
 Mariposa, 22 C. P., at page 371, per Hagarty, C. J. ; 
 Murray v. Gibson, 28 Grant, at page 21, per Spragge, 
 C. ; Fsc parte Young, In re Kitchin, 17 Ch. D. 668 ; 
 Corporation of Wetland v. Brown, 4 Ont. R. 217.] 
 
 Notice Disputing Jurisdiction— Effect o/.— Where 
 a garnishee does not file a notice disputing the 
 jurisdiction of a Division Court within the time 
 required by the 14th section of the Division Courts 
 Act of 1880, though no objection can be taken to 
 the jurisdiction of the Division Court in that 
 Court, yet the jurisdiction of the High Court of 
 Justice to prohibit the proceedings is not ousted. 
 
 The garnishees, though partners, resided in differ- 
 ent places out of the jurisdiction of the Division 
 Court, and but one of them was served. No order 
 was made dispensing with service on the other. 
 The Judge of the Division Court gave judgment 
 against both in their absence. 
 
 Held, by Armour, J., that judgment could not 
 
LATE CANADIAN CASES ON D. C. LAW. 
 
 Ill 
 
 properly be given on such service, as the provisions 
 of the Judicature Act, as to service of one of two 
 parties, does not apply to suits in the Division 
 Court, nor to cases in such Courts where special 
 provision is made by the Division Court Act and 
 Rules of Practice : Clarke v. Macdonald, 4 Ont. R. 
 310. [But, see, Macnee v. Ontario Bank, 19 L. J. N. S. 
 252 per Armour, J]. 
 
 Title to Land. — In an action in a Division Court 
 to recover $79.50 for taxes on certain land, which 
 the defendant was to pay as rent therefor, the 
 facts as to the terms and conditions of the tenancy 
 were disputed, but the defendant did not dispute 
 the plaintiff's title. On the plaintiff obtaining 
 judgment for the amount claimed, the defendant 
 applied for a prohibition, on the ground that the 
 title to the land was brought in question. 
 
 Held, that the amount was properly recoverable 
 in a Division Court : In re English v. Mulholland, 
 9 P. R. 145. 
 
 Interpleader— Chattel Mortgage— Right to MoTwy. 
 — An interpleader order had been made which 
 directed the Sheriff to pay over to the claimants 
 $1,000 and interest, the proceeds of the sale of goods 
 claimed by them under a chattel mortgage, which 
 was not impeached. The order directed an issue 
 as to a second chattel mortgage held by the claim- 
 ants, the execution creditors contending that it 
 was fraudulent. 
 
 A. &> Co. obtained judgment in a Division Court 
 against the execution debtors after the date of the 
 
 I 
 
.■,:*j. 
 
 112 
 
 LATE CANADIAN CASES ON D. C. LAW. 
 
 order, and moved to vary it by directing that the 
 amount of their execution should be retained by 
 the Sheriff out of the $1,000, until garnishee pro- 
 ceedings against the debtor in the Division Court, 
 in which the Sheriff was garnishee, should be 
 disposed of. 
 
 Held, that the moneys in the Sheriff's hands 
 belonged to the claimants, the chattel mortgagees, 
 as on a sale of the mortgaged chattels by them as 
 mortgagees ; that there being no want of bona fides 
 in the mortgage, no want of formalities in it 
 would make it invalid as between the parties to it, 
 so as to entitle the debtor to claim the money 
 secured by it or to entitle A. & Co. to claim it 
 under their execution. 
 
 Held, also, that the terms ""fieri facias'''' and 
 "warrant of execution," used in the Division 
 Courts Act, are convertible terms. 
 
 Held, also, that the tenn " execution creditors " 
 used in the lltli section of the Interpleader Act, 
 taken in connection with section 12, in( 'hides 
 parties holding executions in Division Courts 
 who are therefore proper parties to and should be 
 called upon in an interpleader application by a 
 Sheriff : Macfie v. Hunter, 9 P. R. 149. 
 
 Jurisdiction— D. O. Process lAmited to Ontai'io. — 
 A motion was made for a prohibition to the First 
 Division Court of the County of Kent, to stay pro- 
 ceedings under a judgment obtained by the plain- 
 tiff against the defendant, an American citizen. 
 Cameron, J., held that the process of Division 
 
LATE CANADIAN CASES ON D. C. LAW. 
 
 113 
 
 Courty is of no eifect outside of the Province of 
 Ontario : Ontario Glass Go. v. Swartz, 9 P. R. 252. 
 
 Stay of Proceedings During Appeal.— T\\*iVG can- 
 not be any reason for prohibition to a Division 
 Court, pending an appeal from such Court to the 
 Court of Appeal under the Division Courts Act, 
 1880. In this case iu was refused : Wiltsey v. Ward, 
 9 P. R. 216. [See, same case 8 App. R. 549.] 
 
 New Trial — Practice. — After judgment in an 
 action in a Division Court of the County of 
 Victoria, the defendant, within the fourteen days 
 required by the 107th section of the Division 
 Courts Act, moved, on notice filed with the Clerk 
 of the Court, for a new trial on the ground of 
 discovery of fresh evidence, but did not within the 
 fourteen days file an affidavit, as required by the 
 Division Court Rule 142. An affidavit was subse- 
 quently filed, the motion heard, and a new trial 
 granted by the County Court Judge. A motion 
 for prohibition was refused, the transgression of a 
 Rule of practice forming no ground for such a 
 motion : Fee v. Mcllhargey, 9 P. R. 329. 
 
 Solicitor and Client — Suit in Division Court. — 
 A solicitor sued his client in a Division Court for 
 the amount of his bill of costs. While the action 
 ^\h■^ standing for judgment, the client obtained 
 from the Master in Chambers, an order for tax- 
 ation. Pending an appeal from that order, judg- 
 ment was given, which shewed that all the items 
 in the bill which were in dispute, were considered 
 and adjudicated upon. 
 
^r" 
 
 114 
 
 LATE CANADIAN CASES ON D. 0. LAW. 
 
 Held, notwithstanding, that considering the 
 nature of ttie clirrges and the circumstances dis- 
 closed in the a^ .its filed on the application, the 
 order of the .\.... at was right: lie Burdett, a 
 Soliiyit(yt\ 9 P. K. 487. 
 
 Jurisdiction— Balmv^t vf Claim. — Where the 
 original demand, no matter how large, is ascer- 
 tained by the signature of the party liable, and a 
 balance not exceeding $20() remains due, the Divis- 
 ion Courts have, under the Act of 1880, jurisdiction. 
 The Judicature Act and Rules in relation to pro- 
 cedure do not apply to the Division Courts ; and 
 Rule 330 of the Supreme Court of Judicature 
 applies only to the Courts to which in terms it 
 is made applicable. At the trial the plaintiff 
 elected to take a non-suit, and the Judge refused 
 a new trial. 
 
 Held, that plaintiff was entitled to move to set 
 aside the non-suit, and if refused could appeal 
 therefrom. 
 
 Held, also, that a promissory note, before being 
 negotiated, could be stamped by the maker on the 
 day of the making thereof, though after it had 
 been signed and endorsed by the payee. Bank of 
 Ottawa v. McLaughlin, 8 App. R. 543. 
 
 Jurisdiction — D. C. Act of 1880. — By the Division 
 Courts Act of 1880, these Courts have jurisdiction 
 in actions for debt, the amount or balance of which 
 does not exceed $200, and the amount or the orig- 
 inal amount of the claim is ascertained by the 
 signature of the defendant. Where the claim was 
 
 Hlyi 
 
LATE CANADIAN CASES ON D. C. LAW. 
 
 115 
 
 upon the following document : " Received from R. 
 W. an order from C. B., ordering me to pay him the 
 8um of $140, which is accepted on the following 
 f^onditions, providing he carries out his agreement 
 with me as cheese-maker." It was signed by the 
 defendant. 
 
 Held, that the Division Court had no juris- 
 diction, because the writing did not ascertain 
 the amount, inasmuch as it depended upon the 
 happening of certain events witli respect to which 
 evidence had to be adduced. Wiltsie v. Ward, 8 
 App. R. 549. [See Forfar v. Climie, 20 L. J. N. S. 17.] 
 
 Jurisdiction — Substituting Defendant under Rule 
 115.— A witness at the hearing admitted that he 
 was the real debtor. Upon this the Judge, at the 
 request of the plaintiff, substituted this witness as 
 the defendant, and gave judgment against him. 
 A prohibition was applied for, and refused. The 
 Judge who heard the application held that under 
 the 115th Rule of the General Rules of Practice in 
 Division Courts, the Judge in the Division Court 
 had power to make the amendment and hear the 
 case. In re Henney v. Scott, 8 P. R. 251. 
 
 Power of Judge under section 82 of D. O. Act— 
 The plaintiff resided within the limits of the Ninth 
 Division Court of the County of Wentworth ; sued 
 in that Court two defendants. They both resided 
 in the City of St. Catharines, and the cause of 
 action sued on partly arose there. One defendant 
 put in a notice of defence disputing the claim and 
 the jurisdiction of the Court. At the trial neither 
 
 \ 
 
 
116 
 
 LATE CANADIAN CASES ON D. C. LAW. 
 
 II 
 
 V"' 
 
 P*! 
 
 
 If 
 
 defendant appeared, and the Judge of the Division 
 Court gave judgment for the plaintiff without 
 re(juiring any proof of the claim. It was held by 
 Mr. Justicje Cameron, in Chambers, that proof of the 
 claim should have been given, and prohibition 
 was ordered. It was further held, that an applica- 
 tion for a new" trial by the defendant who had 
 given the notice was no waiver of his right to 
 object to the jurisdiction, and that the other defend- 
 ant (;ould not prejudice such right by having 
 given no notice of defence. In re Evans v. Sutton, 
 8 P. R. 367. 
 
 [This case might be considered authority, did not 
 the learned Judge who gave the decision, entirely 
 ignore that part of the 82nd section of the Division 
 C'Ourts Act, on which the Judge in the Division 
 Court acted, and whi(;h not only the language of 
 the latter part of that section, but an almost uni- 
 form practice among Judges of Division Courts 
 for upwards of thirty years, in case of default 
 of appearance of a defendant at the trial in certain 
 actions, warranted him in so acting. When the 
 point raised in this case is expressly decided in the 
 light of the omitted part of the clause, it may be 
 considered settled, but not until then]. 
 
 Garnishment— Jurisdiction.— Two important points 
 were decided on appeal, in the following case : It 
 was a garnishment proceeding, in which the 
 primary creditor attached sufficient to pay his 
 judgment of a sum of $500, which was due by tht 
 garnishee to the primary debtor. It was contended 
 that the jurisdiction of the Division Courts, in 
 
LATE CANADIAN CASES ON D. C. LAW. 
 
 117 
 
 garniHliee i)roceedingH, in limited to the ainouiit 
 that the Division Court (xmld try in ordinary 
 aetions, and that in actions beyond the jurisdiction 
 of anij Division Court, a notice disputing- tlie juris- 
 diction is not necessary under the ]4tli section of 
 the Division Courts Act of 1880. The matter first 
 (^ame before Mr. Justice Cameron, in Chambers, 
 who held in favor of both of these contentions, and 
 granted a writ of prohibition. On appeal, this 
 decision was reversed ; the Common Pleas Division 
 holding (1) That a primary creditor can garnish 
 part of a debt due by a third person to the primary 
 debtor, for which, as between the primary debtor 
 and the garnishee, a suit could not be maintained in 
 the Division Court, by reason of the amount being 
 in excess of the jurisdiction, and (2) AflS^rming the 
 opinion of Mr. Justice Cameron, in holding that a 
 notice, under section 14, of the Division Courts A(;t 
 of 1880, refers only to suits otherwise of the proper 
 (jompetence of the Division Court, but which have 
 been brought in the wrong division, and that in 
 actions of which any Division Court would not 
 have jurisdiction, no such notice is necessary : In 
 re Mead v. Creary, 8 P. R. 374, 82 C. P. 1. [See, 
 also, 17 L. J. N. S. 3-34 and 440 ; Manufacturei's' and 
 Merchants' M. F. Ins. Co. v. Campbell, 1. C. L. Times 
 134, per Sinclair, Co. J.] 
 
 Jurisdiction under the Act of 18S0— Interest.— Thi". 
 plaintiff sued in the Division Court on a promissory 
 note for $73.14, payable with interest at seven per 
 cent. The principal and interest on this note at 
 the time of the suit amounted to $103.44. The 
 
 i 
 
118 
 
 LATE CANADIAN CASES ON D. C. LAW. 
 
 
 plaintiff at the trial offered to abandon the exceHH 
 of Ilia claim over $10(), which the defendant opposed. 
 The Judge gave judgment for the full amount of 
 the claim, and allowed interest at the rate of seven 
 per (^ent. per annum. An application was made to 
 prohibit the proceedings in the Division Court, on 
 the ground that section 2 of the Division Courts 
 Act of 1880 does not give that Court jurisdiction to 
 try a claim for over $100 where the amount is partly 
 ascertained by the signature of the defendant and 
 partly unliquidated in the nature of damages ; but 
 Chief Justice Hagarty held that the action was not 
 beyond the jurisdiction of the Division Court ; that 
 under the 266th section of Chapter 50 of the Revised 
 Statutes of Ontario, which says that " interest shall 
 be payable in all cases in which it is now payable 
 by law, or in which it has been usual for a jury to 
 allow it;" and under section 267 of the same 
 Statute where "upon any debt or sum certain, 
 payable by virtue of a written instrument at a 
 certain time, the jury may allow interest to the 
 plaintiff from the time when such debt or sum 
 became payable," the Judge in the Division Court 
 had jurisdiction to try the case, and dismissed the 
 application for prohibition. In delivering judg- 
 ment, the Chief Justice says : " If defendant had 
 made the note payable as now, in six weeks, and 
 adding " with interest thereon, until finally paid," 
 I see no reasonable doubt, but that interest would 
 be recoverable to any amount, so as the whole did 
 not exceed $200. The claim would come within 
 the words of the Statute. In the present case, the 
 interest is recovered by law, usage and practice, as 
 
LATE CANADIAN CASES ON D. C. LAW. 
 
 lit) 
 
 legally an the prin(;ip?l iw re(5overable. [ (laiiiiot 
 Hee any pra(5tical distiiiction between the caHew : " 
 McOracken v. Cvemnck, 8 P. R. 5()1. [Followed in 
 In re Widmeyer v. McMahon, 82 C. P. 187. See, 
 also, Bums v. Rogers, 17 L. J. N. S. 209. One point 
 dcHerves mention ''i connection with the above caHe. 
 The note did not bear interest at the rate of seven 
 per cent, until paid. According to the authority 
 of such cases as Dalby v. Humphrey, 37 U. C. R. 514 ; 
 Cooh V. Fowler, L. R. 7 H. L. 27 ; St. John v. Ryhert, 
 4 A pp. R. 213, interest after maturity could only 
 be charged as damages. At page 5()2 of the report 
 of the above case, the learned Chief Justice, in 
 speaking of the rate of interest allowable in sucli 
 cases says, that it is " the long settled i)rat;tice of 
 the Courts to allow interest not necessarily at the 
 rate named in the note from the time it matured, 
 but at the ordinary six per cent."] 
 
 Clerk Entering Judgment — Production of N(4e. — 
 An action was brought in a Division Court, upon 
 a promissory note alleged to have been made by 
 the defendant to the plaintiff or order. No notice 
 was left with the Clerk of the Court of the claim 
 being disputed, or any defence being intended. 
 After the proper time had elapsed, the Clerk was 
 required by the plaintiff to sign judgment and 
 issue execution against the defendant. The Clerk 
 acting, as it was said under instructions from the 
 Judge of his Court, refused to enter judgment 
 unless the note sued on was first produced and 
 filed in Court. The plaintiff applied for a mandamus 
 to compel the Division Court Clerk to enter judg- 
 
i' I 
 
 jl 
 
 '!i> 
 
 120 
 
 LAIE CANADIAN CASES ON D. C. LAW. 
 
 
 il 
 
 iiieiit for tlie plaintiff, and Hag-arty, C J., Ki"intM 
 the application, holding, that although he did not 
 ( I Mention the windom of the practice of requiring- 
 produ<ition of the note, and believing that it had 
 arisen from a desire to prevent possibh^ in.jnstic-e in 
 tilt; case of nep-otiabh; intrunientn, yet having to 
 deal with the (luention an "a matter of Htri(^t right," 
 he was obliged to say that tlie plaintiff was not 
 bound to i)roduce and file the note in Court before 
 obtaining his judgment : In re JJrinhvater, v. 
 Clarridge, 8 P. R. 504. 
 
 Juv'mliction Uiider the Act of 1H80 — Pronmsoi'u 
 Note.— Am ai)])li(;ation was made for a writ of 
 ])rohibition to a Division Court. The plaintiff and 
 defendant were the joint makers of a promissory 
 note for *169, payable to the firm of Goldie & Mc- 
 Culloch, of Gait. The defendant contended that it 
 was a partnership transaction, but the learned 
 Judge in the Division Court found as a fact that 
 the plaintiff signed it as a surety only. After the 
 note became due, the plaintiff paid it in full, and 
 brought this suit to recover from the defendant 
 the amount he so paid. Objection was made, that 
 the Division Court had no jurisdiction, because 
 the amount or original amount of the claim was 
 not ascertained by the signature of the defendant, 
 under the 2nd section of the Division Courts Ac-t 
 of 1880. The learned Judge (Osier), before whom 
 the application came, granted prohibition, holding 
 that the plaintiff's right of action was for money 
 paid by the plaintiff for the defendant's use, and 
 consequently, that the amount was not ascertained 
 
 -' 
 
LATE CANADIAN i.a'^EB ON 1). C. LAW. 
 
 121 
 
 by tilt) Hignature of the defendant, and was not 
 an action on the note. The learned Jud^e wayw : 
 " The clainiH mentioned in section 2 of the Divinion 
 CourtH Act of 1880, are, in my opinion, (^lainiH upon 
 inHtnimentH, nnch an notes or otherwise, in which 
 a debt or money demand is atjknowled^ed in favor 
 of the (Teditor." As there did not appear to be any 
 meretorious defence to the claim, the applicant 
 was denied his costs of the applii^ation : Kinsey v. 
 Roche, 8 P. R. 515. 
 
 Ahandonrrient of Excem.—'Y\\^ plaintiff sued the 
 defendant in the Division Court for >!^100, and 
 endorsed on the summons as particulars, a promis- 
 sory note for 1125. It was held that the plaintiff 
 might at the trial abandon in his particulars the 
 excess above $100, so as to bring the case within 
 the jurisdiction of the Court. Hagarty, C. J., in 
 refusing the writ of prohibition says : " The plain- 
 tiff by putting his claim at $100 in the summons, no 
 doubt intended to abandon the excess of the claim 
 as stated in the particulars." He further says, " I 
 do not consider myself bound by McKenzie v. Ryan 
 iS P. R. 323 ; the facts being different : " In re Stog- 
 dale V. Wilson, 8 P. R. 5. [See, Meek v. Scoble, 20 
 L. J. N. S. 15, 3 C. L. Times 594. In appeal 4 Ont. 
 R. 553.] 
 
 Whole Cause of Action — Jurisdiction. — The 
 defendant who resided within the limits of the 
 Tenth Division Court of the County of York, drew 
 a cheque in the plaintiff's favor, within the limits 
 of the First Division Court of the same County 
 
 
122 
 
 LATE CANADIAN CASES ON D. C. LAW. 
 
 f. ■ 
 
 upon a bank situate in the Tenth Division. The 
 cheque having been dishonored, the plaintiff sued 
 upon it in the First Division Court. It was held 
 that the action was improperly brought there, and 
 that a summons for prohibition thereto, on the 
 ground of want of jurisdiction, must be made 
 absolute : King v. Farrell, 8 P. R. 119. 
 
 Whole Gmise of Action — Jurisdiction. — The 
 defendant residing at Port Elgin, in the County of 
 Bruce, by letter instructed the plaintiff, an 
 attorney, at Toronto, to take certain legal pro- 
 ceedings. The plaintiff having performed these 
 services, brought suit in a Division Court at 
 Toronto, to recover his fees ; it was held that the 
 cause of action arose partly in each place, and that 
 a prohibition should issue : In re Hagle v. Dal- 
 rymple, 8 P. R. 183. 
 
 Garnishment — Jurisdiction.— \.i was held that a 
 plaintiff in a Division Court proceeding against a 
 primary debtor and a garnishee in a Court which 
 would not have jurisdiction against the primary 
 debtor alone, must prove a garnishable debt in the 
 hands of the garnishee, otherwise prohibition 
 would lie. It was held further, that a garnishee is 
 not a defendant within the 62nd section of the 
 Division Courts Act, which deiines the places 
 where a Division Court suit may be entered and 
 tried : In re Holland v. Wallace, 8 P. R. 186. 
 
 Jurisdiction depending on Disputed Facts. — On an 
 application for prohibition to a Division Court, 
 after judgment and execution, where the question 
 
 
i 1«' 
 
 LATE CANADIAN CASES ON D. C. LAW. 
 
 128 
 
 of jurisdiction depends upon disputed facts — as, in 
 this case, upon whether the person by whom the 
 bargain sued upon was made, acted as plaintiff's or 
 defendant's agent ; if the Division Court Judge 
 has decided this question on evidence, and found 
 in favor of his jurisdiction, the Court will not 
 interfere with his finding ; but here, there having 
 been no such decision, and the want of jurisdiction 
 being clear upon the affidavits filed, a prohibition 
 was granted : StepJwns v. Laplante, 8 P. R. 52. 
 
 Effect on Covenant of Clerk and Bailiff. — It was 
 held in the following case, that 36 Victoria, 
 Chapter 6, section 5 (Ontario), effectually released 
 all Division Court bonds to Her Majesty, made 
 before the 1st of July, 1869, both as to liabilities 
 incurred thereunder, before and since that date 
 (Rev. Stat. Ont., Chapter 94, section 3) : Re Franhlin, 
 8 P. R. 470. [This decision would not affect the 
 ordinary Statutory covenant entered into by Divi- 
 sion Court officers and their sureties.] 
 
 Chattel Mwtgage Act— Joint Otvnership.—Th.e 
 Chattel Mortgage Act (Rev. Stat. Ontario, Chapter 
 119), does not apply to cases of joint ownership of 
 chattel property, so as to render it necessary to 
 observe its provisions in respect to a mortgage or 
 other conveyance of an undivided interest in any 
 chattel. The Act was intended to apply to personal 
 chattels susceptible of specific ascertainment and 
 of accurate description, and capable of being trans- 
 ferred and possessed in specie, and not to an 
 indivisible chattel. It was further held that the 
 
 HI I 
 
 ill 
 
 
 1 ^ 
 
 ■1^ 
 
 I: I 
 
124 
 
 LATE CANADIAN CASES ON D. C. LAW. 
 
 ^l 
 
 ownership of a colt, which a mare the property of 
 co-owners had, followed the ownership of the dam : 
 Gunn V. Burffess, 20 L. J. N. S. 191. 
 
 Mutual Fire Insurance Company — Assessment. — 
 The directors of the plaintiffs' company u„'sessed 
 the defendant, a policy-holder, for several sums, 
 one of which, being fire insurance of certain risks, 
 was illegal. They sent one notice to him claiming 
 the amount of all the assessments, including the 
 illegal one, in one sum : 
 
 Held, by the Court of Appeal, that the plaintiffs 
 were not entitled to recover any of the assessments : 
 Victoria Mutual F. Irm. Co. v. Thompson 20 
 L. J. N. S. 146. 
 
 Division Court Bailiff— Interpleader — Costs. — The 
 defendant, a Division Court Bailiff, seized goods of 
 the plaintiff under two writs. H. & Co. claimed 
 the books and book debts under an assignment 
 from the plaintiff. The debtor applied for an 
 interpleader order, or that H. <fe Co. be made 
 parties. 
 
 Held, that as upon the facts appearing the defend- 
 ant was not liable and the plaintiff must fail in 
 the action, the proceedings should be set aside 
 under R. S. O., Chapter 73, section 8, and Rule 323 
 of the Judicature Act. 
 
 Held, also, that there was no jurisdiction to 
 provide for H. & Co's costs. Byrne v. Box. 18 L. J. 
 N. S. 14. 
 
 Fence-vimioer^ Act — Appeal in D. C. against 
 Award.— An award will not be sustained which 
 
 
 )M: 
 

 LATE CANADIAN CASES ON D. C. LAW. 
 
 125 
 
 has for its object the relieving of the person com- 
 plaining of too much water by taking it from his 
 land and leaving it on the land of his neighbor. 
 The arbitrators should see that there is sufficient 
 outlet for the water, and in that respect their acts 
 should be thorough and complete, and if no suffi- 
 • cient outlet can be obtained, they should not 
 
 ' Ti terf ere. 
 Held, also, that the particular point at which the 
 
 projected drain is to commence must be accurately 
 
 and specifically designated in the award, as also 
 
 must be the point of termination. 
 Held, also, that the Judge has no power to amend 
 
 the award. In re Bell ami. Codling, 18 L. J. N. S. 
 
 15, per Davis, Co. J. J. 
 
 I 
 
 % 
 
 
 I t! 
 
LATE CANADIAN CASES 
 
 ON THE SUBJECT OF GARNISHMENT, &c. 
 
 
 U'm 
 
 Assignmeit of Bebt.—Ovdem upon a garnishee to 
 attach and to pay over were set aside on its being 
 shewn that the debt in question had been assigned 
 by the garnishee before the judgment creditor had 
 obtained his judgment, but no costs were given, as 
 the assignee had neglected to give notice of the 
 assignment to the garnishee. Grant v. McDanell, 
 39 U. C. R. 412. [See also Mrsch v. Ooates, 18 C. B. 
 757 ; Brown v. McGuffin, 5 P. R. 231 ; Robinson v. 
 Nesbitt, L. R. 3 C. P. 264 ; Netowan v. Manning, 79 
 Indiana 218 ; Ferguson v. Carman, 26 U. C. R. 26.] 
 
 Stop Order.— T\\fd Court has power to issue a stop 
 order at the instance of a judgment creditor of a 
 party entitled to funds in Court. Wilson v. 
 McCarthy, 7 P. R. 132. 
 
 Setting aside Attaching Order. — Held, that an 
 affidavit for an attaching order under R. S. O., 
 Chap. 50, section 307, must be made by the execution 
 creditor or his attorney, and that an affidavit made 
 by a managing clerk was insufficient. 
 
 Held, also, that such an order cannot be set aside 
 on objection taken thereto on shewing cause to a 
 summons to pay over, a substantive motion to that 
 
 *1 
 
LATE CANADIAN CASES ON GAUNISHMENT. 
 
 127 
 
 .. 
 
 effect being necessary for that purpose. Builder' v. 
 Kerr, 7 P. R. 323. [But now see Ontario Judica- 
 ture Act, Rule 370. In re Sato v. Hubbard, 8 P. R.445.] 
 
 Relief refused. — Pending an appeal from the 
 judgment herein by the defendant, the amount 
 thereof was paid into the Court of Common Pleas 
 under an order of that Court. Before such pay- 
 ment into Court, one F. obtained a garnishee 
 summons in the Division Court against the 
 plaintiff as primary debtor and the defendant as 
 garnishee, but through some oversight no provision 
 was made in the order for the result of the gar- 
 nishee proceedings. After the appeal had been 
 dismissed, the defendant applied for an order that 
 the amount of the claim in the Division Court suit 
 be retained out of the money in Court to abide the 
 result of such suit. It was not shewn that this 
 claim was a debt that could be garnished, or that 
 the Division Court had jurisdiction in the matter, 
 and it appeared that the plaintiff had assigned his 
 claim to the money in Court to a third party, in 
 ignorance of the garnishee proceedings which he 
 had not heard of until this application was made. 
 
 Held, that under these circumstances the defend- 
 ant was not entitled to relief. Parkinson v. Clen- 
 dinning, 7 P. R. 367. 
 
 What debt ffamishable— Affidavit.— The affidavit 
 on which to obtain an attaching order may be 
 made by the attorney of the judgment creditor or 
 by a partner of the attorney. 
 
 Semble, that proceedings on such order could not 
 
128 
 
 LATE CANADIAN CASES ON GARNISHMENT. 
 
 1 t. 
 
 be prohibited on the ground that it was founded 
 on a defe(;tive affidavit, that being a mere matter 
 of pracjtice. 
 
 A debt in garnishable where it consists of money 
 due under an aw^ard and decree of the Court of 
 Chancery, although the full amount is not ascer- 
 tained by reason of the costs not having been 
 taxed. When the amount in such a case is finally 
 ascertained, execution may be issued against the 
 garnishee, although he still disputes his liability, 
 and the J udge is not bound to direct an issue. In re 
 Sato V. Huhhard, 8 P. R. 445, [See now Ontario 
 Judicature Act, Rule 370.] 
 
 Rival Claimants fm' Debt. — Where, on an applica- 
 tion under the C. L. P. Act for a garnishee order, 
 the debt alleged to be due to the judgment debtor 
 is claimed by a third person, and on such ground 
 the garnishee disputes his liability to pay it over 
 to the judgment creditor. 
 
 Held, that in the absence of any power to direct 
 an interpleader issue or summon such third 
 person before the Court, the issue of a writ under 
 section 291, is the proper course to adopt ; and that 
 the garnishee, where there are rival claimants for 
 the debt, may file a bill in Equity, calling upon the 
 parties to interplead : Spencer v. Cmdey, 26 C. P. 
 274. [But now see Rules 374 to 376 of the 
 Ontario Judicature Act.] 
 
 Equitable Attachment of Debt. — A bill in equity 
 was filed on behalf of creditors to reach moneys by 
 way of equitable attachment, but it was held, that 
 
LATE CANADIAN CASES ON GARNISHMENT. 
 
 129 
 
 the bill way not Hustainable, as the moneys (;()iild 
 not be attached in equity : St. MicTiaeVs College v. 
 Meri'ich, 1 A pp. R. 520 ; [Grilchrist v. Wiley, 28 Grant, 
 425 ; Webb v. Stmton, 11 Q. B. D. 518.] 
 
 Gamishnient — Intevpleadei'— Equitable Defence. — 
 In certain garnishee proceedings in the Division 
 Court of the County of Wentworth, several 
 creditors had obtained orders attaching the whole 
 amount— *582, found due under an award from the 
 company to the judgment debtor for a loss by fire, 
 and ordering payment thereof. Subsequently the 
 Judge of the County Court of Essex, notwithstand- 
 ing the opposition of the (company, made a similar 
 order to pay $208 to another creditor, on the ground 
 that when the summonses in the Division Court of 
 the County of Wentworth were issued, there was 
 no atta(;hable debt due. The company unsuccess- 
 fully applied to the Judge of the County of Went- 
 worth to rescind his orders, and then filed a bill 
 (tailing on the defendants, the different attaching 
 <Teditors, to interplead. 
 
 Held, (1) That it was not a proper case for inter- 
 pleader. (2) That the bill was not sustainable, for 
 the attaching creditors in Wentworth had obtained 
 judgments in the Division Court against the 
 plaintiffs, with which the Court of Chancery could 
 not interfere. (3) That under the circumstances, 
 the Judge of the County Court of Essex, had no 
 power to make a summary order for payment : 
 Victm'ia Mutual Fire Ins. Co. v. Betkune, 1 App. R. 
 398. 
 
 ^ 
 i 
 
 K 
 
 i: 
 
 ■ '■n 
 
 1 ■, .' (i 
 
 I ■ . HI 
 
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 LATE CANADIAN CASES ON GABNISHMENT. 
 
 m 
 
 M 
 
 Insolvency/ — Garnishrnent after As8iff7mient. — 
 Upon A'h insolvency in Montreal, T, a creditor 
 residing in the County of Renfrew, proved his 
 claim and afterwards made an assignment. Subse- 
 quently F, A's assignee, not having heard of T's 
 insolvency, collocated him on the dividend sheet 
 for the amount due on his claim, whereupon (certain 
 creditors of T took proceedings in the Sui)eri()r 
 Court at Montreal to garnish this amount. Upon 
 receipt of a letter from B, T's assignee, demanding 
 payment of the dividend, F informed him that 
 (certain persons in Montreal were endeavoring to 
 get payment of this dividend from him, but he 
 neither mentioned who they .were or the nature of 
 their claim. In accordance with the practicu^ of 
 the Courts in Quebec, F made an affidavit of the 
 position he occupied towards the principal debtor, 
 in which he recited the above facts, but took no 
 further action in the matter. He neither advised 
 B that this declaration had been made, nor held 
 any further communication with him. No opposi- 
 tion being offered, an order was made for the 
 payment of the debt and costs by F within fifteen 
 days, and without waiting for the expiration of 
 this period or giving B any notice, F paid the 
 amount. 
 
 Held, affirming the judgment of the County 
 Court, that B was entitled to recover the dividend 
 from F, and that F could not protect himself on 
 the ground that he had paid the money in obedience 
 to a Court of competent jurisdiction, as under 
 section 125 of the Insolvent Act of 1875, the Court 
 
LATE CANADIAN CASES ON GARNISHMENT. 
 
 131 
 
 had no authority to make aiK^h an order after T'h 
 asHipTinuent ; and even if that Court had posHeaaed 
 .juriadic-tion, the .judgment could not defeat B'a 
 righta, as he was not a party to the procjeedin^a or 
 affeeted with noti(5e thereof, and F had been guilty 
 of ne,t»'ligence in prote(;ting himself. Re Fair and 
 Bell, 2 App. R. «82. [See Tumhull v. Robertson, 47 
 L. J. C. P. 294, 88 L. T. N. 8. 889.] 
 
 No Appeal in Garnishee Proceedings. — There ia no 
 appeal from an order made in garnishee proceed- 
 ings in a County Court under section 813 of the 
 C. L. P. Act ; appeals from the County Courts 
 being expreasly limited to the cases mentioned in 
 section 85 of the County Courts Act. Section 200. 
 of the C. L. P. Act does not give a general appeal 
 from the County Courts, being controlled by the 
 sub-heading preceding section 189 : Sato v. Hub- 
 hard, 6 App. E. 546. [But, now see, 45 Victoria, 
 Chapter 6 (Ontario).] 
 
 Garnishing Part of Debt BeyoTid Jurisdiction of 
 Division Court. — A primary creditor can garnish 
 part of a debt due by a third person to the primary 
 debtor, for which as between the primary debtor 
 and the garnishee, a suit could not be maintained 
 in the Division Court by reason of the amount 
 being in excess of the jurisdiction : Re Mead v. 
 Creary, 32 C. P. 1. 
 
 Equitable Debt. — It was held, on the authority of 
 the case of In re Cowans^ Estate, Rapier v. Wright, 
 14 Ch. D. 638, that money in the hands of a Receiver 
 might be garnished : Learning v. Woon, 7 App. R. 
 
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 12 
 
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 \ 
 
 1 1 
 
 Imm 
 
 III 
 
 
 182 
 
 LATE CANADIAN CASES ON (GARNISHMENT. 
 
 42. [But, nee Wehb v. Stentmi, 11 Q. B. D. 518; 
 GilchviHt V. Wiley, 28 Grant, 425.] 
 
 Prornimort/ Note— Not Garnishable — Held, tluat a 
 negotiable i)r()miHHory note not yet due is not a 
 debt which may be attached within the meaning 
 of Rule 870 of the Ontario Judicature Act : JacJi- 
 Hcm V. Camdy, 2 Ont. R. 521. [See, Pine v. Kinner, 
 11 Irish C. L. 40 ; Hellish v. Buffalo, Brantford and 
 Oodet-ich By. Co., 2 U. C. L. J. 230 ; 14 L. J. N. S. 256. 
 Drake on A tta< aliment, sections 582 to 592. 
 
 Garnishment — D. Court Jurisdiction. — Where a 
 garnishee does not file a notice disputing the juris- 
 diction of a Division Court, within the time 
 required by the Division Courts Act, 1880, section 
 14, though no objection can be taken to this juris- 
 diction of the Division Court in that Court, the 
 jurisdiction of the High Court of Justice to pro- 
 hibit the proceedings is not ousted. 
 
 The garnishees, though partners, resided in dif- 
 ferent places out of the jurisdiction of the Division 
 Court, and but one of them was served. No order 
 was made dispensing with service on the other. 
 Judgment was given in the Division Court against 
 both in their absence. It was held, that the Judi- 
 cature Act does not apply to a case of this kind, 
 the proceedings of which are specially provided for 
 in the Division Courts Act : Clarice v. Ma^dcmald, 
 4 Ont. R. 310. [See, Jacobs v. Brett, L. R. 20 Eq. 1 ; 
 Bridge v. Branchy 1 C. P. D. 633 ; Oram v. Brearey, 
 2 Ex. D. 346.] 
 
 Clerk of the Peace— County Funds. — The Treasurer 
 
LATE CANADIAN CASES ON GARNISHMENT. 
 
 m\ 
 
 of a C/Ounty <"aiiiiot \w Karuisliwl on a .judKin«iit 
 a^ainHt the Clerk of the Peaee for that County for 
 inoneyH which may come into the handw of nnc'li 
 County TreaHurer for said Clerk of the Pea(5e, Jifter 
 the Board of Audit haw pasned npon his acconntw, 
 the same not being a garnishable debt within the 
 provisions of the C. L. P. Act. In re Hanvey v. 
 Stanton, 13 L. J. N. S. 108. 
 
 Division Court tfurisdiction. — A plaintiff in a 
 Division Conrt proc^eeding against a primary debt- 
 or and garnishee in a Court which would not have 
 had jurisdiction against the primary debtor alone, 
 must run the risk of proving a garnishable debt in 
 the hands of the garnishees, otherwise a prohibi- 
 tioji will lie. 
 
 A garnishee is not a defendant within the mean- 
 ing of section 62 of the Di vision Courts Act, so as 
 to give .jurisdi(;tion where none exists against the 
 l)rimary debtor alone. In re Holland v. Wallace, 
 16 L. J. N. S. 113, 8 P. R 186, S. C. 
 
 Divimon Court transcript. — It is doubtful if in a 
 transcript from a Division Court to a County Court, 
 under the 165th section of the Division Courts Act, 
 it is necessary to set out garnishee proceedings 
 taken after judgment. Ghent v. Tremain, 17 L. J. 
 N. S. 172. [See Farr v. RoUns, 12 C. P. 35 ; Jacmtih 
 V. Henry, 13 C. P. 377 ; Hope v. Grams, 14 C. P. 393.] 
 
 Hent — When overdue attacluible. — Rent which has 
 accrued by virtue of the Apportionment Act 
 (Revised Statutes of Ontario, Chapter 136, sections 
 
 
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 ' m 
 
V 
 
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 l.'U 
 
 LATE CANADIAN CASES ON GARNISHMENT. 
 
 [u 
 
 T 
 
 II 
 
 II 
 
 III 
 III 
 
 '2 and H) may be attached and may \w, ordered to be 
 paid, wlieii due, to natiyfy tlie primary debt. 
 Pattermn v. Rkhmond, 17 L. .1. N. S. .'i24. [See 
 Mitchell V. Lee, L. K. 2, Q. R. 251) ; Commercial Bank 
 V. JannH, 5 IT. C^ L. J. HH ; McLaren v. Sudvmrth, 
 4 U. C). ].. J. 28.'{ ; 7>/y?y> v. ./w»^.s L. R. 10, Q. B. .5U1.| 
 
 Tnmt M(m€f/.— The Mawter in Cliaml)erH made 
 an order dire(^tin^ trustees to pay interest goiniL*- 
 under the will of the father of the judgment debtor 
 to the latter, to the judgment creditor, from time 
 to time, as such interest accrued due : Lloyd v. 
 Wallace, 19 L. J. N. S. 18 ; 9 P. R. 335 S. C. [But see 
 now Webb v. Stenton, 11 Q. B. D. 518.] 
 
 Rights of Garnishor. — A judgment creditor does 
 not become a creditor of the garnishee by service of 
 the garnishee order on him. There is not the exist- 
 ence of a debt from the garnishee to the attaching 
 (creditor. He has the right against the garnisl 
 that is expressly given him by the Statute, a. i 
 nothing more ; and although the garnishee can be 
 (compelled to pay the attaching (^-editor, if the 
 (iourse pointed out by the Statute is pursued, the 
 position of the garnishee is not that of a debtor to 
 the attaching creditor. He continues to be a debtor 
 to his own creditor until he has paid into Court, or 
 to the attaching creditor, after order so to repay, or 
 a levy of the amount has been made of his property, 
 when he ceases to be a debtor as to the amount 
 paid or levied : Wardrope v. Canadian Pacific Ry. 
 Co., 20 L. J. N. S. 133 : 4 C. L. Times 196. 
 
 Money in Hands of Division Court Clerk— Money 
 
LATK CANADIAN CASES ON GAHNISHMENT. 
 
 185 
 
 |)aid to a Divinion Court Clerk for a Hiiitor in a 
 (rauHe iw paid to the ut»e of the Huitor, and is 
 Karnitthable: Bland \. Andrews, 45 U. C. R. 481. 
 I But, Hee, Dolphin v. Lanton, 4 C. P. D. 180 ; Howell 
 V. Metropolitan District Ry. Co., U) Ch. I). 508. 
 Drake on Attachment, 509. | 
 
 Garnishment — Allowance to Juror — T]w allow- 
 ance to a .juror iw not attachable in tlie liandt^ of 
 the County Trefisurer, at the Huit of a .judgiru nt 
 (•reditor of the juror : Phillips v. Austin, 8 C. L. 
 TimeH 810 {per Mac-doufi-all, J. J.). 
 
 Garnishment for Costs.— A defendant who has 
 obtained executions upon a rule of Court for the 
 payment of costs of tht^ day by the plaintiff, is 
 under R. S. O., Chai)ter H7, sei^tion 12, and Chai)ter 
 06, section 72, a judfi-ment creditor, and entitled to 
 garnish moneys due to the plaintiff. 
 
 The cjuestion of the validity of a .jud^-ment 
 should not be argued on the return of a garnishee 
 summons, but should be raised on an application 
 to set aside the execnition : Elliot v. Capell, 9 P. R. 
 85. [See, also, Nott v. Sands, W. N. 1888, page 74, 
 and Sunderland Local Marine Board v. Franklin, 
 L. R. 8 Q. B. 18 ; Cremetti v. Crom, 4 Q. B. D. 225.] 
 
 1 
 
 
 i < 
 
 
! 
 
 LATE ENGLISH AND IMSH CASES 
 
 ON GARNISHMENT OF DEBTS. 
 
 Sin(5e the writer made an annotation of the 
 Division Courts Act and the Division Courts Act 
 of 1880, a number of cases have been reported in 
 the English and Irish Reports which are useful 
 and instructive to us, and which it is jjroposed 
 here to give a note of. All or nearly all of the cases 
 on this subject, up to the writer's annotations of 
 these two Statutes, will be found at pages 147 to 
 164 and 251 to 258 of the fir?^ work, and from i)ages 
 98 to 101 of the annotation of the Act of 1880. The 
 following are cases in the English aiid Irish Courts 
 subsequent thereto, or that may have been ac;cident- 
 ally omitted therefrom. 
 
 iVb? on Order for Payment of Costs. — After a rule 
 had been dis(;harged with costs, the person in 
 whose favor the rule had been discharged (^ould 
 not obtain a garnishee order, the 1 and 2 Vi(;toria, 
 c. 110, s. 18 (Rev. Stat. Ontario, c. 67, s. 12) 
 giving to rules of the Courts of common law the 
 effect of judgments for the purposes of the Act, but 
 not ac^tually making them judgments. Sunderland 
 Local Marine Board v. Franhland, L. R. 8, Q. B. 18. 
 [But see Elliot v. Gapell, 9 P. R. 85, and Nott v. 
 Sands, W. N. 1888, page 74, under the Judi(5ature 
 Act,] 
 
 . r^- 
 
LATE ENG. AND IRISH CASES ON GARNISHMENT. 137 
 
 Annuity.— A plaintiff had recovered judgment 
 against the defendant in an action of detinue, 
 which judgment still remained unsatisfied. The 
 defendant, under the will of her decease d husband, 
 was entitled to an annuity for the maiitenance of 
 herself and her infant son. 
 
 Held, that the annuity was attachable in the 
 hands of the trustees in whom it was vested, subject 
 to any inquiry as to the proportion to be allowed 
 for the maintenance of the son. Nash v. Pease, 47 
 L. J. Q. B. 766. [But lately it has been held that 
 such money would only be subject to attachment 
 if it was actually in the hands of the trustees. 
 Webh V. Stmtm, 11 Q. B. D. 518.] 
 
 On Bankruptcy. — An order having been made for 
 the attachment of the surplus of a bankrupt's 
 estate against the official assignee of the Court of 
 Bankruptf^y as garnishee under the Common Law 
 Proi;edure A(;t, 1854 : 
 
 Held, that such order was invalid, there being no 
 " debt " that could be attached within the meaning 
 of the Act. Re. Greendll L. R. 8, C. P. 24. 
 
 Money in Court.— K. plaintiff has such an interest 
 In money lodged in the name of the Master of the 
 Court to the credit of the cause, that the money so 
 lodged may be made the subject of a charging 
 order : Adaim v. Gillem, 9 Irish C. L. 148. [But, see 
 Dolphin V. Layton, 4 C. P. D. 130 ; Bland v. Andretvs, 
 45 U. C. R. 431 ; Haivell v. Metropolitan Distnct Ry. 
 Co., 19 Ch. D. 508 ; Wilson v. McCarthy, 7 P. R. 132.] 
 
 Funds in Hands of Executor.— '^\w, Court refused 
 
 
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 i 
 
 138 LATE ENG. AND IRISH CASES ON GARNISHMENT. 
 
 to attach, at the instance of a .iudj^ment (creditor, 
 on a judgment de bonis testatoris, against an 
 executrix, funds lodged by her in that capacity in 
 the bank of the .judgment (creditor : Hewat v. 
 Davenport, 21 W. R. 78. 
 
 Govei'nmmt Stock. — A charging order will not be 
 made against government stock standing in the 
 name of a judgment debtor upon a judgment de 
 bonis testatoris obtained against the debtor as 
 administratrix : Hetcat v. DavenpmU 21 W. R. 78. 
 
 Within the Jwisdiction. — It was held, that a debt 
 (50uld not be attached under the garnishee t;lauses 
 of the Irish Common Law Procedure Act, 185B, 
 unless the garnishee was within the jurisdic^tion, 
 and a registered company, whose head office was in 
 London, was not within the jurisdiction within 
 section 63 of that Act (Rule 370, Ontario Judi- 
 cature Act), although they had an agent residing 
 in Ireland and transacting their business there : 
 Martin v. Keily, 5 Irish C. L. 404. 
 
 Promissory Note. — A promissory note, not yet due, 
 does not constitute a debt whi(;h can be atta(;hed 
 to answer a judgment debt : Pine v. Kiimer, 11 
 Irish C. L. 40. [See, Mellish v. Buffalo, Brantford 
 and Godei-ich Ry. Co., 2 U. C. L. J. 230 ; 14 L. J. N. S. 
 256 : Jackson v. Oassidy, 2 Ont. R. 521. Drake on 
 Attachment, sections 582 to 592.] 
 
 Decision Final. — When, upon an attac^hment 
 under a garnishee order by a judgment creditor of 
 moneys due to the judgment debtor, a third party 
 claims such moneys for a debt due to him from the 
 
LATE ENG. AND IRISH CASES ON GARNISHMENT. 139 
 
 judgment debtor, and consents to a Judge at 
 Chambers deciding the issue summarily between 
 him and the judgment creditor, instead of asking 
 for an issue to be tried in the usual way, such 
 decision of the Judge is final, and cannot be 
 appealed against by such third party : Eade v. 
 Wimer, 47 L. J. Q. B. 584. 
 
 Solicitor's Costs. — A judgment creditor of the 
 defendant, in a partnership action, obtained a 
 garnishee order niM, to attach all moneys in the 
 hands of the Receiver in the action appearing to be 
 due to the defendant on taking the accounts. On 
 the following day, and before service of the order 
 nisi, the defendant's solicitors obtained, on a 
 summons served on the Receiver, a charging order 
 intituled in the action, declaring that they were 
 entitled to a charge for their costs upon all moneys 
 coming to the defendant under the action. On the 
 next day the garnishee order nisi, was served on 
 the Receiver, and was subsequently made absolute. 
 
 Held, that the solicitors were entitled to their 
 costs, in priority to the claim of the creditor under 
 the garnishee order, both under the Solicitors' Act 
 and independently of it : Hamer v. Giles, 11 Ch. D. 
 942. 
 
 SoliGito7'\s Costs.— By an award made pursuant to 
 to an order of nisi prim, the sum of £179 was 
 ordered to be paid by M to P. This amount 
 remained unsatisfied. The plaintiffs obtained judg- 
 ment for £1,200 against P B. who acted as P's 
 attorney in the action in which the order of nisi 
 jyritis was made, and took out a summons for a 
 
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 140 LATE ENG. AND IRISH CASES ON GARNISHMENT. 
 
 charging: order under 23 and 24 Vict., o. 127, s. 28, 
 upon the £179. Afterwards the plaintiff obtained 
 a garnishee order under 17 and 18 Vic, c. 125, s. 61, 
 against M. 
 
 Held, that the unpaid amount of il79 was 
 property within 23 and 24 Vict., c. 127, s. 28, and 
 the summons for the charging order having been 
 issued by B before the plaintiffs obtained the 
 garnishee order, B's lien, as the attorney by whom 
 the £179 had been recovered, must prevail, and he 
 was entitled to receive that sum in priority to the 
 plaintiffs : Birchall v. Pugin, L. R. 10 C. P. 397. 
 [As to the effect of an attaching order on solicitor's 
 lien for costs and the general right of solicitor to 
 lien ; also, see Hough v. Edwards. 1 H. & N. 171 ; 
 Eisdell V. Caningham, 4 H. & N. 871, (Amer. Ed.); 
 Sympson v. Prothero, 3 Jur. N. S. 711 ; The Jeff 
 Davis, L. R. 2 A. & E. 1 ; The Leader, L. R. 2 A. & E. 
 314 ; Ex parte Yalden, In re Austin, 4 Ch. D. 129 ; 
 Shippey v. Grey, 42 L. T. N. S. 673 ; Mercer v. Graves, 
 L. R. 7 Q. B. 499 ; Ex parte Bryant, 2 Rose, 237 ; Ex 
 parte Rhodes, 15 Ves. 539 ; R. v. Benson, 2 P. R. 350 ; 
 Davidson v. Douglas, 15 Grant, 347; The '' Hope',^ 
 8 P. D. 144 ; In re Capital Fire Insurance Association, 
 24 Ch. D. 408 ; Charltm v. Charlton, 49 L. T. N. S. 
 267 ; Greer v. Young, 24 Ch. D. 545 ; Re Harrald, 
 Wilde V. Watford, 48 L. T. N. S. 352.] 
 
 Secured Creditor. — A .judgment creditor, who had 
 obtained a garnishee order nim to attach debts due 
 to his debtor, was held not to obtain any charge on 
 the debts until service of the order nim on the 
 garnishees. In re Stanhope Silkstone Collieries Co., 
 11 Ch. D. 160. [See Ilarner v. Giles, 11 Ch. D. 942.J 
 
LATE ENG. AND IRISH CASES ON GARNISHMENT. 141 
 
 I ! , 
 
 Payment hu Process of Law. — A plaintiff having 
 recovered judgment againwt a defendant for i;i8, 
 and the defendant having recovered a judgment 
 against B for i'44, the plaintiff obtained an order 
 attaching B's debt together with a summons calling 
 on B to shew cause why he should not pay to the 
 plaintiff ^18 of the amount due to the defendant. 
 Afterwards and before the return of the summons, 
 the defendant taxed his costs as against B, and on 
 the same day issued a Ji. fa. under which the 
 Sheriff took possession of the goods of B, who gave 
 notice to the Sheriff of the summons, and offered 
 to pay the Sheriff the debt due to the defendant, 
 less the amount due to the plaintiff. This the 
 Sheriff refused to accept, and insisted on being 
 paid the whole amount for which execution was 
 levied, whereupon B paid the whole amount under 
 protest. 
 
 Held, that B having been compelled by process of 
 law to pay the debt to the Sheriff could not be 
 called upon to pay it a second time to the plaintiff. 
 Turnbull v. Eohertson, 47 L. J. C. P. 294, 38 L. T. 
 N. S. 389. 
 
 
 
 
 1 
 
 V3 
 
 No appeal. — There is no appeal from a garnishee 
 order under the English County Court Rules, 1875, 
 (nor would there be under our Division Courts 
 Acts). Mason v. Wirral Highway Board, 4 Q. B. I). 
 459. [See also Sato v. Hubbard, 6 App, R. 546.] 
 
 Partnership firm. — A garnishee order cannot be 
 made under the Judicature Act attaching a debt 
 due from a partnership firm, described by its part- 
 
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 142 LATE ENG. AND IRI8H CASES ON GARNISHMENT. 
 
 nersliip name : Walker v. Rooke, 6 Q, B. D. H81 . 
 [See also, Clarhe v. Macdonald, 4 Ont. R. 810.] 
 
 Salary. — The salary of a secretary of a company, 
 amounting to t'200 a year is not " wages " of a 
 " servant " within the Wages Attachment Abolition 
 Act of England, (33 and 34 Vict. C. 30), and is there- 
 fore not exempt from attachment : Goi'don v. 
 Jennings, 9 Q. B. D. 45. [It would be exempt under 
 the 125th section of our Division Courts Act to the 
 extent of '$25. But see ante page 1.] 
 
 Wife's Money in hands of TVws^ee.— Judgment 
 having been signed in an action against the defend- 
 ants, a man and his wife, it was sought to attach in 
 execution moneys in the hands of trustees, forming 
 part of the income of trust funds i)ayable to the 
 wife to her separate use, which had accrued since 
 the judgment. The will by which the trust was 
 (;reated contained a clause restraining anticipation 
 by the wife. It appeared that the action was for 
 the amount of a promissory note made by the 
 husband and wife jointly during the coverture. 
 
 Held, that the monays in question could not be 
 attached in execution : OhapTnan v. Biggs, 11 Q. B. D. 
 27. [See also Roberts v. Death, W. N. 1881, page 
 142 ; S. C. 18 L. J. N. S. 101 ; 8 Q. B. D. 319.] 
 
 Income From Trust Fund.— A judgment creditor 
 was entitled for his life to the income arising from 
 a fund vested in trustees, payable half-yearly, in 
 February and August. Upon application by the 
 judgment creditor in November, for a garnishee 
 order attaching the debtor's share of the income in 
 
LATE ENG. AND IRISH CASES ON GARNISHMENT. 143 
 
 the liaiidw of the tru8tees, it appeared that the last 
 half-yearly payment had been made, and that there 
 was no money, the proceeds of the trust pr(,perty, 
 in the hands of the trustees. 
 
 Held, in appeal affirming the Queen's Benc^li 
 Division, that there was no debt " owing or accru- 
 ing" at the time when the order was applied for, 
 which could be attached under the Judicature Act ; 
 that the proper (bourse for the judgment creditor 
 to pursue, was to apply for the appointment of a 
 Receiver, under the practice of the Chancery 
 Division: Webb v. Stentmi, 11 Q. B. D. 518. [See, 
 also. South Western Loan and Discount Co. v. Robert- 
 son, 8 Q. B. D. 17 ; Fuggle v. Bland, 11 Q. B. D. 711 ; 
 Westhead v. Riley, 25 Gh. D. 413 ; Vyse v. Wise, % 
 Law Times Jour. 315 ; Stevens v. Phelips, L. R. 10 
 Ch. 417; Llojjd v. Wallace, 9 P. R. 335; I. y. K 
 "W. N. 1884, page 63.] 
 
 Sw'dIus mi Mortgage Sale.— A judgment creditor, 
 who has obtained a garnishee order against a 
 mortgagor debtor of his debtor, is not entitled to 
 the surplus proceeds of the mortgaged estate when 
 sold by a prior mortgagee under his power of sale, 
 the sale having taken place after the date of the gar- 
 nishee order. But the holder of a garnishee order 
 against the first mortgagee, such order having been 
 obtained after the sale, is entitled to attach the 
 surplus proceeds of sale in the hands of the first 
 mortgagee : CJiatterton v. Watney, 16 Ch. D. 378. 
 In appeal, 17 Ch. D. 259. [See, also, Smith v. Trust 
 and Loan Co. of U. C, 22 U. C. R. 525 ; McKay v. 
 Mitchell, 6 U. C. L. J. 61 ; Ni<)ol v. Ewin, 7 P. R. 331 ; 
 
 
 
■trnnr — ^laai 
 
 IM ^ 
 
 144 LATE ENG. AND IRISH OASES ON GARNISHMENT. 
 
 Ill re Cowans' Estate, Bajm?' v. Wvight, 14 Cli. D. 
 638 ; Learning v. Womi, 7 App. R. 42, 19 L. J. N. S. 
 327 ; 14 L. J. N. S. 283.] 
 
 Bankruptcy Dealing.— K garnishee order attach- 
 ing a debt due to a bankrupt, is not a " dealing " 
 with the bankrupt within section 94, sub-section 3, 
 of the English Bankrupt(;y Act, 1869. Whether 
 8U(;li an order is " an attachment against goods " of 
 a bankrupt, within section 95, sub-section 3, of that 
 A(^t is doubtful, but if it is, it is not within the 
 protection of that sub-section, unless the garnishor 
 has obtained actual payment of the attached debt 
 from the garnishee before the order of' adjudica- 
 tion : Ex parte Fillers, In re Curtoys, 17 Ch. D. 653. 
 
 Costs in Divorce Court. — Under the English 
 Judicature Act of 1873, section 25, sub-section 8, the 
 Court of Divorce in England has power to atta(-li 
 a debt due to a respondent, in order to compel 
 obedience to an order of that Court for payment 
 of (;osts : Whittaher v. Whittdker, 7 P. D. 15. 
 
 Equitable Debt.—A\\ equitable debt is now the 
 subject of garnishment : Wilson v. Dunda^, W. N. 
 1875, page 232. [See, also. In re Cowans' Estate, 
 Rapier v. Wright, 14 Ch. D. 638 ; Learning} v. Worm. 
 7 App. R. 42, 12 L. J. N. S. 5 ; 19 L. J. N. S. 327.] 
 
 Debt must be Absolute.— A "debt due or accru- 
 ing" to a judgment debtor, and therefore capable 
 of being atta(;hed by a garnishee, musi be an 
 absolute and not merely a conditional debt. Thus, 
 where after notice to treat by a railway company 
 to a landowner, the purchase money had been 
 
LATE ENG. AND IRISH CASES ON GARNISHMENT. 145 
 
 fixed by the verdict of a jury, and judgment under 
 the Lands Ctauses Act had been given, the purchase 
 money cannot be attached by a garnishee order 
 nisi, nerved upon the (company by a judgment 
 (•reditor of the landowner after the verdict, but 
 before the execution or tender of a (;onveyance, for 
 the proceedings under tlie above Act do not in 
 themselves create an absolute debt due from the 
 (X)mpauy to the landowner — his right to the pur- 
 chase money being conditional upon the execution 
 or tender of a conveyance. Af^cordingly, in a case 
 where the landlord had brought an action and 
 obtained judgment against the ccmipany for 
 specific |)erformance of the Statutory contract : 
 
 Held, that the purc^hase money (;ould not be 
 atta(5hed by garnishee orders rmi, served upon the 
 <;om])any, some before and (jthers after the com- 
 mencement of the action, notwithstanding that a 
 good title had been shewn, nor even by a garnishee 
 order served after the execution of the conveyance 
 when the money had been paid into Court by the 
 (company under the judgment, the money not being 
 "a debt in the hands" of the garnishee within 
 Rule 8, of Order XLV, of the English Judicature 
 A(5t. The provisions of Rule 8 of Order XLV of 
 that Act, as to jjayment or execution being a valid 
 discharge to the garnishee, are inapplicable to a 
 debt due from the judgment debtor that is con- 
 ditional only : Howell v. Metropolitan Distinct Ry. 
 Co., 19 Ch. D. 508. [See, also. Guardians of East 
 London Union v. Metropolitan Ry. Co., L. R. 4 Ex. 
 
 \m.\ 
 
 f 
 
 
 i 
 
 ,"1 
 
 i 
 
lit 
 
 U<) LATE EN(i. AND IRISH CASES ON GAKNI8HMENT. 
 
 Order for Ooats.—Au oi)inion was strongly 
 exprenwed, that an order for coHtH could be the 
 yiib.je(;t of ^^arniMhineiit, and he enforced by a ^-ar- 
 niwhee order, (donbtinp the authority of Cremetti v. 
 (??w/j, 4Q. B. D. -J-Jr)); Nott v. Sands, W. N. ISKi 
 pa^e 74. |See Elliot v. CapelL V) P. R. 85. | 
 
 Snj>erimnuati(m Allouxnwe.— The. judgment debtor 
 had been a police constable, and had been awarded 
 upon his retirement an annual superannuation 
 allowance, under 11 and 12 Victoria, Chapter 
 U, which allowance it was nought to attac^h. 
 ( )ne ((uarter's peiiHion had aiu^rued to him prior to 
 the date of the application and remained unpaid- 
 The Court held, that an order might be made for 
 payment of the (piarter's pension already ac('rued 
 due to the judgment creditor, but that no order 
 could be made attaching prospectively the future 
 payments in respect of the pension : Booth v Trail, 
 W. N. 1H88, page 182, 12 Q. B. D. 8 S. C. [See, also, 
 Shanley v. Moore, 9 U. C. L. J. 264 ; Hall v. Pritchett, 
 8 Q. B. D. 215 ; Gordon v. Jennings, 9 Q. B. D. 45.] 
 
 Set-o,f hf/ Garnishee against Judgment Creditor. — 
 A garnishee can set-off against a judgment c;reditor 
 costs incurred by him, but not paid at the time the 
 issue is directed, against Avhich the judgment 
 debtor is bound to indemnify the garnishee : 
 Rymill v. Wandsworth District Board, 1 C. <fe E. 92. 
 
 Final Judgment. A garnishee order absolute is 
 not a "final judgment" against the garnishee 
 within the meaning of sub-secti(m 1 {g) of section 4 
 of the. English Bankruptcy Act, 1888, and therefore 
 
! I 
 
 LATR EN(I. AND IRISH CASES ON GARMSHMENT. U7 
 
 the failure to (comply Avitli a bankruptcy notice 
 founded upon it will not be an act of bankruptcy : 
 Ev /Hirte Chineru, In re Ch'mevii. W. N. 1SS4, pa^-t^ 51. 
 
 (Creditor irith Garnishee Order. -V\\v plaintiff in 
 an action in the Chancery Division waHHuedinthe 
 QueenV Benc^h DiviHion by ta bank for €8,2(M). In 
 the Cliancery a(-tion the plaintiff obtained judK- 
 ment for i'5,0(^) aw liiiuidated daiiui^'eH, whereu|)on 
 the bank i)roceeded to jud^'inent in the other 
 action, and had a ^arniyhee order made absolute 
 in their favor, attaching all debts due to the 
 defendant (the plaintiff in the Chancery action), 
 from the defendant in the Chancery action. They 
 then took out a summons in the Chancery action, 
 asking that they might be made plaintiffs in the 
 same : 
 
 Held, That they were entitled to be added as 
 (50-plaintiff8, and to have notice of all proceedings 
 taken by the original plaintiff to recover the sum 
 found due to him, until their debt of i'3,200 should 
 be discharged, but that they could not have the 
 (conduct of the action : Wallis v. Smith, 46 L. T. N. S. 
 478. 
 
 Trust Funds. — Where in garnishee proceedings 
 the money is trust money, or there is reasonable 
 suspicion that it is trust money, the cestui qui ti-ust 
 has a right under equitable procedure to come 
 forward, provided he does so in time, and object to 
 an order absolute being made ; and he is not to be 
 damaged by such an order merely because the 
 garnishee will not act : Roberts v. Death, IH 
 L. J. N. S. 101, S. C. 8 Q. B. D. 819. 
 
 
1 
 
 SELECTED AMERICAN CASES 
 
 ON THE SUBJECT OF GAKNISHMEN1\ 
 
 [The following" notes of caneB are selected from 
 the many decisions of Federal and State CJourts of 
 the United States, on the subjec^t of attachment or 
 S-arnishment of debts. The object has been to 
 select only those cases which present points of 
 similarity to cases which most prenerally come 
 before our own Courts. The principle to be 
 deduced from the general current of authority on 
 any particular point is here given rather than a 
 strict adherence to the point detdded in any par- 
 ticular case. The statement of general proi)ositions 
 of law is observed more than a close observance of 
 individual cases. A leading case, however, Ims 
 been in all cases attempted to be given as authority 
 for the point of law stated.] 
 
 A Statutory Proceeding Entirely. — Garnishment 
 in the United States draws no support from the 
 common law. It is entirely a statutory proceed- 
 ing : Bliss V. Smith, 78 Illinois 359 ; Hoffman v. 
 Fitzwilliam, 81 Illinois, 521 ; SJieedy v. Second 
 Naticmal Bank, 62 Missouri, 17. [See, also. Ward- 
 rope V. Can. Paelfic Ry. Co., 20 L. J. N. S. 133.] 
 
SELECTED AMERICAN CASES ON GAUNISHMENT. 140 
 
 Rei*ti< WhMii on Judicial AY><?ew. (larinHhineiit 
 restH wholly on judicnal procicHw, and depends upon 
 the due piii'Huit of tlie wtepH preweribed by law for 
 its prosecution, and if a different |)ro(iee(linK in 
 pursued to the prejudice of another creditor, wucli 
 proceeding is void : Schindler v. Smith, IS Louin- 
 icana Annual, 47H; Northern Central H. Co. v. 
 Mider, 45 Maryland, 24. 
 
 Proceedinn In i^em.— (Tarnishnient in in the 
 nature of a pro(;eedin^ in rem. It is in effect a suit 
 by the defendant in the plaintiff's name, against 
 the garnishee without reference to the defendant's 
 concurrence, and indeed, in opposition sometimes 
 to his will. Where, however, the garnishee holds 
 l)roperty of the defendant under a fraudulent 
 transfer the right of the plaintiff to hold the gar- 
 nishee is not limited by the defendant's right 
 against the Litter : Daniels v. Clark, 88 Iowa, 556. 
 
 The Effect. — By garnishment the creditor obtains 
 an effectual atta(^hment of the property of the 
 defendant in the garnishee's hands, and its effect is 
 to restrain the garnishee from paying his debt to 
 the defendant : Kennedy v. Brent, t> Cranch, 187 ; 
 Walcott V. Keith, 2 Foster, 196 ; Hicks v. Gleasm, 20 
 Vermont, 189 ; Parker v. Farr, 2 Browne, 831. 
 
 Effect on Property of ^'^cryTiisA^e.— Grarnishment 
 creates no lien on the real or personal property of 
 the garnishee : Parker v. Parker^ 2 Hill Chan., 35 ; 
 Parker v. Farr, 2 Browne, 331. 
 
 Secret Trust. — Where the garnishee, prior to the 
 garnishment, had property of the defendant 
 
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 W 1 
 
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 .t^^ _- 
 
 150 SELECTED AMERICAN CASES ON (iAllNISHMENT. 
 
 in Ills possession under a secret trust, which Avould 
 liave been void as against creditors, but before 
 garnishment he had delivered the property to the 
 defendant, it was heki that he could not lie 
 (charged : Bailey v. Rof^s, 20 New Hamp., 8(>i. 
 
 Overthroyring Tnists. — The proceeding by gar- 
 nishmeni can have no effect to overthrow trusts in 
 order to reach moneys supposed to belong to a 
 debtor. Such moneys must be the prc^^rty of the 
 debtor absolutely: White v. White, 80 ^ermont, 
 M88 ; Keyser v. Mitchell, 67 Penn., 478. 
 
 Pric.rity. — In garnishment, attachments take pre- 
 cedence in the order of their service : Wilder v. 
 Weatherhead, 82 Vermont, 765 ; Erskine v. Staley, 
 12 Leigh, 406 ; Johmon v. Griffith, 2 Cranch C. C., 
 199. [See Tate v. Cor. of Toronto, 8 P. R. 181.1 
 
 Doctrines of Garnishment— 0\w, of the funda- 
 mental doctrinee. of garnishment is, that the plain- 
 tiff does not acquire any greater rights against the 
 garnishee than the defendant himself possesses : 
 Harris v. Fhoeidx Ins. Co., 35 Conn., 810 ; United 
 States V. Bohrtson, 5 Peters, 641, except where the 
 garnishee holds under a fraudulent transfer from 
 the defendant: Lamb v. Stons, 11 Pick., 527; 
 United States v. Vaughan, 8 Binney, 894. 
 
 Effect of Garnishment — Judgment. — There can b^' 
 no judgment against the garnishee until final 
 .judgment is recovered against the defendant, or as 
 Ave term it in our Division Courts the "primary 
 debtor : " Washhum v. N. Y.iScV.M. Co., 41 Ver- 
 mont, 50 ; Emanuel v. Smith, 88 Georgia, 602, and if 
 
SELECTED AMKlilCAN CASES ON GAUNISHMI-^XT. 
 
 J 51 
 
 judKiiieiit ag-ainst the defendant (priiuary debtor), 
 be reversed, that as'ainnt the ^JH'idsliee must be 
 likewise reversed : Rowlett v. Lane, 48 Texas, "274. 
 
 Third Parties.~l\\ most States third i)arties 
 (^hiimiiig to own the debt, are aUowed to intervene 
 and shew their ri.M-ht to the de(jt : Peck v. Stratton. 
 118Mass., 4(>>. 
 
 OnuH of Proof.— li always devolves on the |)lain- 
 tilE to make out his ease against the garnishee. 
 The ^arriishee's liability must be afjfinnativel!/ 
 shown : Webxter v, Ga{/e, 2 Mass., 50.'} ; Porter v. 
 SteveuH, ti Cushinur, 580. 
 
 General Bali's // /v/V//»/7/^//.--T wo things, in most 
 States, must eoncur to render garnishment 
 effec^tual. (1) Possession* of property capable .>f 
 being seized, or money in the hands of a garni- 
 shee. (2) A liability ex contractu to the defendant, 
 whereby the latter has at the time of garnishment, 
 a (-ause of actieai, present or future, against the 
 garnishee : Haven v. WenUrortJc, 2 New Ham p., 
 t)8 ; Maine F. & M. Lm. Co. v Week><. 7 Mass., 488. 
 
 Garnishee Mimt be a Third Person. — Attempts 
 have been made to garnish individuals, where to 
 do so was in reality to garnish the defendant ; as 
 for instance, a toll-gate keeper or a ticket agent of 
 a railway comi)any. It has been held, tluit all 
 such are merely servants of the detc'udant, theii- 
 |)ossessi()n being simply his possession, and that 
 they cannot be garnished : Central Plank' Road 
 Co. V. Sanunons, 27 Alabama, 880 ; Pettennill \. 
 
 M 
 
 1 
 
 1.*^ 
 
I 
 
 I 
 
 5 
 
 li ' 
 
 15l' HELECl'ED AMERICAN CASES OX GARNISHMENT. 
 
 Androscoggin R. R. Co., 51 Maine, .-iTO ; Fowler v. 
 Pittsburg F. W. & C. R. R. Co., 85 Penn., 22. 
 
 Debt in Course of Collection. — An attorney wiio 
 liaM in hiy c-are a debt in the coui'He of collection 
 belonging to a defendant in attachment, (*annot be 
 liolden as garnishee on that ac(H)nnt : Hitchcock v. 
 Egerton, 8 Vermont, 202 ; Fitch v. Waite, 5 Conn., 
 117. 
 
 Debtor a Trustee Merely. — ^Where money is in a 
 garnishee's hands for the defendant, the latter 
 lieing simply a trustee of the money garnished, the 
 attachment of it cannot hold : Simpson v. JIa>'r,(/, 
 1 Devereanx <fe Battle, 202 ; Chctpin v. Conn. R. R. 
 Co., m Gray m ; Willard v. Sturtevant, 7 Pi(-k., 
 194 ; Brigden v. Gill, H> Mass., 5^.2. 
 
 Trust Fund.- Wlw.iv, a fund is in the hands of a 
 tvm ^ 'eon a trust whit h the cestui qui trust vaiw any 
 moment revoke by a demand of tlu money, and on 
 a refusal of payment, (^an iirnnedia'cel.v maintain an 
 action in his own name to recover it, the trustee 
 can be held as a garnishee of the cestui (jni trust on 
 ac(;ountof the fund : Kaxtabvook v. Earle, V>7 Mass., 
 :}02 ; even although it may be part of a larger fund 
 in which others are also interested : Haskell v. 
 Haskell, s Metcalf, 545. 
 
 Bank Account.- \\\\^Vi' \\\inyi'y is deposited in i\ 
 V)ank by one as agent, and the a«-c()unt is so under- 
 stood between banker and (ustomer, and contain- 
 ing only the moneys of other persons for whom he 
 was agent, and no moneys of his own, it rannot be 
 subjected by garnishment t<» tlu payment of the 
 
SELECTED AMERICAN CASES ON GARNISHMENT. 
 
 153 
 
 a^ent'w debts than any other money of his priiK i- 
 pals vAmld be. Bank of Northern Liberties v. Jones, 
 42 Penm. 586 ; Jones v. Bank of NoHhei'n Liberties, 
 44 Pcnii. 258. Where a deposit was made in the 
 agent's name, without designation of his represent- 
 atives diaracter, but the principal, after the garnish- 
 ment gave notice to the bank that the money was 
 his and not the agent's, it was held not garnish- 
 able for the debt of the agent : Farmers & Mechan- 
 ics' Nat. Bank v. King, 57 Penn. 202. 
 
 Money in Agent's Name.— Waiver of Right. — If a 
 l)ers()n whose money is deposited in a bank in the 
 name of ano'^her as his trustee, knows of the 
 garnishment ci" abank in a suit against the trustee 
 for his own debt, and takes no step to assert his 
 right to the money, and the bank is charged as 
 garnishee, and pays the amount for which it is 
 charged, the cestui qui tiii^st (cannot maintain an 
 action against the 'uank for the money, but must 
 week liis remedy for the loss against the trustee, 
 even though the iKink was informed by the trustee 
 wlien the deposit was made tliat the money be- 
 longed to tlie cestui qui tinist : Randall v. Wau, 
 lllMass. 50(i. 
 
 Officers of the Law. — Contrary to the general rule 
 wiiicli lias prevailed in this Province, officers of 
 the law and persons acting under legal or official 
 authority have, in uearly all the States of the 
 Uiiior, been held exempt from ganiishment. 
 Administrators, Execnitoi., Guardians, Sheriffs, 
 Clerks of Courts, Receivers, Trustees of Courts and 
 Trustees accountable to Courts, Justifies of the 
 
 '1 
 
 
! i 
 
 r'i 
 
 !> Mi 
 
 15-1 SELECTED AMERICAN CASES ON GARNISHMENT. 
 
 Pea(;e, Trustees of Insolvents, and Assignees in 
 Bankruptcy, Disbursing Officers and Attorneys-at- 
 Law, have all, except the latter class, been generally 
 held exempt from garnishment process : Drake on 
 Attachment, sections 492 to 515. Practising attor- 
 neys are not in most of the States protected by 
 their legal capacity from garnishment, but are 
 considered liable in respect of money so held by 
 them, even thcagh their clients could maintain no 
 action against them for the money until the pay- 
 ment of it sh^iuld have been demanded : Staples 
 V. Staj)le8, 4 Maine, 53t> ; Thayer v. Sherman, 12 
 Mass., 441 ; B,iley v. Hirst, 2 Penn., 346. 
 
 ■:f 
 
 
 :■ % 
 
 . > 4 I' 
 
 7S 
 
 Municipal Corporations. — The current of Ameri- 
 can authority is against rendering municipal cor- 
 porations amenable to garnishment process : Drake 
 on Attachment, section 516; though a municipal 
 corporation may waive the exemption and submit 
 itself to liability as garnishee, or may be estopped 
 by its conduct from setting up the exemption : 
 Glapp V. Davis, 25 Iowa, 315. 
 
 Gaiifiishmmit of Gove7nmeut. — Followinp: the 
 principles of the common law of England in regard 
 to the Crown, no State of the American Union, 
 nor the United States, can be rendered liable to 
 garnishment without its consrnt, signified by its 
 own Statute law : Beers v. Arkansas, 20 Howard 
 (Sui). Ct.), 527 : Briscoe v. Bank, 11 Peters, 259, and 
 a general provision that a State may be sued does 
 not extend to garnis^nnent pro(^eedings, nor i)ermit 
 «»f its being cliarged as garnishee of one of its own 
 
 :« 
 
 .i9 
 
SfiLECTfiD AMERICAN CAGES ON GARNISHMENT. 1.'),') 
 
 155 
 
 ofRcei'H in respect of the salary due liiiii : Mc- 
 Meehin v. State, 9 Arkimsas, 558 ; Dobbins v. O.d^A. 
 U. R. Co., 87 Georgia, 240. There is then an abso- 
 lute inunuuity of a State from garnishment, direct 
 or indirect, unless with its consent exi)ressed by 
 law. I So also, must it be the case m resi)ect to the 
 garnishment of our General or Provincial Govern- 
 ments : R. V. McFarlane, 7 Sup. R., 216.] 
 
 Assignment. — An assignment defeats the right of 
 garnishment, but the title oi the assignee can be 
 impeached by the plaintiff on the ground of fraud 
 or other legal ground : Sandidge v. Graves, 1 
 Patton Jr. & Heath, 101 ; Cotoles v. Coe. 21 Conn., 
 220 ; Giddings v, Coleman, 12 New Ramp., 153. The 
 assignment may be either legal or eciuitable: 
 WakeiieLd v. Martin, 3 Mass., 558 ; McGuire^. Pitts, 
 42 Iowa, 585 ; Mathesmi v. Rutledge, 12 Richardson, 
 41. 
 
 Liens. — If the garnishee has a lien on the subject 
 of the garnishment, it cannot be taken without 
 first discharging the lien : Nolen v. Crook, 5 
 Humphreys, 812 ; Smith v. Clarke, 9 Iowa, 241 ; 
 Grant v. Shaw, 16 Mass., 841 ; Curtis v. Nor7'is, 8 
 Pick., 280 ; Goddard v. Hapgood, 25 Vermont, 181. 
 
 Illegal Consideration. — No liability can be 
 enforced against a garnishee for a debt l)ased on 
 an illegal consideration : McGlinchy v. Winchell, 
 63 Maine, 31. 
 
 Debt.—1^\\^ rule in the United States may be 
 considered as authoritative, that no judgment can 
 be rendered against a garnishee when there is not 
 
 •Si* 
 
 ■^:i^ 
 
 "w 
 
 y 
 
 I- 
 
156 SELECTED AMERICAN CA8ES ON GARNISHMENT. 
 
 I L« 
 
 ? i 
 
 i 
 
 '■'!;■■ 
 4 
 
 
 a clear admission or proi f of a legal debt due or to 
 become due to the defendant ; in fact, a debt for 
 wliicli the defendant might maintain an action of 
 debt or indebitatus asmmpsit : Presnall v. Mabry, 
 3 Porter, 105 ; VictoT v, Hartford Ins. Co., 33 Iowa, 
 210 ; Poirell v. 8a7nmons, 81 Alabama, 552 ; Webster 
 V. Steele, 75 Illinois, 544; Morey v. Sheltns, 47 
 Vermont, 342. 
 
 Debt Due in Money.— T\\e debt must be due in 
 money or it cannot be garnished : Minis v. Parher, 
 1 Alabama, 421 ; Wrigley v. Geyer, 4 Mass., 102 ; 
 Smith V. Davis, 1 Wisconsin, 447 ; Willard v. Butler, 
 14 Pick., 550; Fuller v. aPrim, 121 Mass., 422; 
 Bartlett v. Wood, 32 Vermont, 372. 
 
 When Debt Payable.— li it is uncertain wiu'ther 
 anything will ever become due or not or a (Contin- 
 gent liability merely, there cannot be garnishment 
 of that alleged debt : Roberts v. Drinhard, 3 Metcalf, 
 309 : Bishop V. Young, 17 Wisconsin, 46 ; Wood v. 
 Buxton. \0H Mass., 102; Potter v. Cain, 117 Mass.. 
 23S ; Oobmm v. Hartford, 38 Conn., 2VK). 
 
 Exact Amount.— It is not sufficient to charge a 
 garnishee to shew that he owes something to the 
 defendant, but the amount owing must be shewn, 
 otlierwise the proper foundation for a judgment 
 against liim is not laid : Marks w Reinbery, 16 
 [y)uisiana Annual, 348 ; Poor v. Colburn, 57 Penn., 
 415. 
 
 Joint ami Several Debtm-s — Wliere sevtjnil ptn'sons 
 are jointly an<l severally liable for a debt, any one 
 
 
SELECTED AMERICAN CASES ON GARNISHMENT. 
 
 157 
 
 of them may be garnished in the same manner that 
 h(; mig^ht be sued for the debt without his co-debtor 
 btMii^ joined in the action : Travis v. Tartt, H 
 Ahibama, 574 ; Specnc v. Kinsey, 17 Texan, 801 ; 
 Macomber v. Wright, 35 Maine, 156. 
 
 Joint Debtor. — Where one joint debtor was sum- 
 moned as garnishee and it appeared that he was 
 not indebted in his individual capacity, but as a 
 partner in a finn, it was held, in the absence of the 
 others being made parties to the proceeding, he 
 could not be charged : Rix v. Elliott, 1 New Hamp., 
 184. [See, also, Parker v. Danforth, 16 Mass., 299 ; 
 Walker v. Rooke. 6 Q. B. D. 631.] 
 
 Style of Cause. — Where a garnishment proceeding 
 is instituted against a firm, the names of the indi- 
 vidual members of it must be set out in the process. 
 A proceeding against the firm of " A. B. &, Co." 
 charges no member of it : Reid v. McLeod, 20 
 Alabama, 576. [So also, would this be law in gar- 
 nishment proceedings in our Division C jurts : 
 Clarke v. Macdonald, 4 Ont. R. 310; Walker v. 
 Rooke, 6 Q. B. D. 631.J 
 
 Several Defendants. — Where there are several 
 defendants (primary debtors), the property of each 
 is liable fur the whole debt. In such case if it 
 ai)pears that the garnishee is indebted to one or 
 more of the defendants, though not to all, he will 
 be charged : Thompson v. Taylor, 13 Maine, 420 ; 
 SUme \. Dean. 5 New Hamp., 502 ; Parker v. GnilUnv, 
 10 New Hami)., 103 ; Caigrwtt v. Gilhaud, 2 Yeates 
 35 ; Locket w Child, 11 Alabama, 64(J. 
 
 i 
 
, i: 
 
 m ^' 
 
 V.' 
 
 m 
 
 158 SELECTED AMERICAN CASES ON GARNISHMENT. 
 
 Several Debt of One of Two Defendants. — A Jk B 
 (ioiitracted with a town to do certain work for a 
 Htii)nlatt;d consideration. After the work way done 
 the town was garnished in two suits against B, and 
 the (;ase disclosed an indebtedness to A & B 
 .jointly, and judgments were rendered against it in 
 respect of B's share of the debt. Afterwards A <t; 
 B joined in an action against the town, and the 
 judgments rendered against the town as garnishee 
 of B were set up in bar pro tanto, of the recovery. 
 The Court after referring to the garnishments, say : 
 " In each of those suits, the town was charged, 
 and a portion of the debt due to the plaintiffs 
 jointly, was thus adjudged liable to be appropriated 
 by process of law to the payment of the several 
 debts of one of them. This we think was erroneous. 
 It seems to be now settled by authorities, that a 
 joint debt cannot thus be severed and appropriated 
 in whole or in part, to disciiarge the several debt of 
 one " : Haives v. Waltham, 18 Pick., 451 ; Lyndon v. 
 Gorham, 1 Gallison, 3f>7. 
 
 Unnegotiable Promissory Notes. — These stand in 
 the same position as an ordinary chose in action, 
 and the rights of the attaching creditor are affected 
 by assignment of them in the same w?y as would 
 be the case by the assignment of any other chose 
 in action. And if the garnishee at any time before 
 payment of the amount ordered to be paid by him, 
 receive notice of an assignment made before he 
 was garnished and fail to take proper stei)s to 
 prevent payment of the amount, it is said that 
 such payment will be in his own wrong and will 
 
 
SELECTED AMERICAN CASES ON GAliNISHMENT. l.W 
 
 ('onstitiite no valid defeii(;e to tlie (^laiiii of tlu^ 
 ansi^iuM; : Oldham v. Ledhetter, 1 Howard (Miwy.), 48 ; 
 Wilhelnii V. Huffnev, 52 IllinoiH, 222. Oolvin v. Rich, 
 a Porter 175. 
 
 Negotiable PvoiimHovy Notea.—W in iinpoHHiblti to 
 (;liai'^e a garniHliee an a debtor of the defendant on 
 a nes'otiable security unlesH it appear affirmativelu 
 that at the time of the garnishment the defendant 
 had a cause of action against him for the recovery 
 of a debt due or to become due by the efflux of 
 time : Wetherill v. Flanagan, 2 Miles, 243 ; Allen v. 
 Morgan, 1 Stewart (Ala.), 9 ; Smith v. Chapman, iS 
 Porter (Ala.), 3(j5 ; Davis v. Paidette, 8 Wis(;onsin, 
 8(K) ; Pierce v. Oarletmi, 12 Illinois, 358 ; People v. 
 Johnson, 14 Illinois, 342 ; Ellicott v. Smith, 2 
 Ch'anch, C. C, 543. 
 
 [In Vermont a negotiable promissory note (x)uld 
 not at connnon law be garnished while it was 
 current : Hntchins v. Evans, 13 Vermont, 541 ; 
 Baimey v. Douglass, 19 Vermont, 9S. The same 
 view of the law was taken in Pennsylvania in 
 Ludlow V. Binghain, 4 Dallas, 47 ; but it was held 
 that the Court (iould impound the negotiable 
 instrument on the ground that its transfer after 
 garnishment would be a fraud on others : Kiejfer 
 V . Ehler, 18 Penn., 388 ; Hill v. Kroft, 29 Penn., 186 ; 
 Dag V. Zimmerman, 68 Penn., 72 ; Adarm v. Averg, 
 2 Pittsburgh, 77. 
 
 In addition to the two States that have been 
 mentioned, it has been laid down by the Courts of 
 the following States, as a general rule, that negoti- 
 able securities are not the subject of garnishment 
 
 
 > 
 
 
, (■ 
 
 KW) SELECTED AMERICAN CASES ON GARNISHMENT. 
 
 ■4 * 
 
 during their currency : Virfi-inia, Iloioe v. Oul(/, 
 28 Grattcan, 1 ; South Carolina, Gajfneff v. Brad- 
 ford, 2 Bailey, 441 ; Louiniana, Sheets v. Culver, 14 
 Louiwiana, 449 ; Texas, Iglehart v. Moore, 21 Texas, 
 501 ; Indiana, Cadwalader v. Hartleu, 17 Indiana, 
 520 ; Oleneaij v. Junction R. R. Co., 26 Indiana, 875 ; 
 WiH(;on8in, Davis v. Pmvlette, 3 Wisconsin, 300; 
 Michigan, Littlejield v. Hodge, 6 Michigan, 826 ; 
 Minnesota, Huhhard v. Williams, 1 Minnesota, 54 ! 
 Kentucky, Greer v. Pmvell, 1 Bush, 489; Iowa, 
 Comrnimioners v. ii^oa?, Morris, 48 ; California, 6'';'e<7- 
 org V. Higgins, 10 California, 389 ; Nebraska, Clough 
 V. Buck, 6 Nebraska, 343. 
 
 In North Carolina and Georgia the right to 
 garnish is recognized under certain limited (*ircuni- 
 stances : Shuler v. Brysrni, 65 North Carolina, 201 ; 
 Burton v. Wynne, 55 Georgia, 615. So, also, is the 
 right to garnish with certain limitations recognized 
 in Connecticut : Enos v. Tuttle, 8 Conn., 27 ; Tenn- 
 essee, Huff V. Mills, 7 Yerger, 42 ; Mississippi, Yar- 
 borough v, Thompson, 3 Sniedes &, Marshall, 291 ; 
 Missouri, Scott v. Hill, 3 Missouri, 88 ; Maryland, 
 Steuart v. West, 1 Harris <fe Johnson, 536 ; Somer- 
 ville V. Brown, 5 Gill, 399. 
 
 It will thus be seen that the cAirrent of Anieri('an 
 authority is against the garnishment of negotiable 
 instruments during their currency, and this is con- 
 sistent with the view of our Courts in the latest 
 exposition of the law in the case of Jackson v. 
 Cassidg, 2 Out. R. 521 , where it was held that an 
 unmatured promissory note (-ould not be garnished.] 
 
 
 Extent of Garnishee's Liabilitg.— The liability of 
 
 ■t, 
 

 SELKCTED AMEUICAN CASES ON G AUNISIlSf^Nt. ^ "Til] ' c 'v. ' ^,| 
 
 V ' •! , ■''■>, '< 
 
 tli(5 jj:ariiisliee (raniiot be cliaiiffed or eiil^H^elrl'/ ( 
 
 beyond tlu; (extent of liiy eontraet with or InPT"- '" 
 
 liability to the debtor: Bartlett v. TTow/, 82 Ver- 
 luoiit, 87-2 ; Wngleu v. 6^e//e/s 4 Mawn., 102 ; Swisher 
 V. /<7^(?/i, 1 SiuedeH & Marnhall, 541 ; White v. 
 Richardmn, 12 New Hamp., 98. 
 
 Forei(/u Country— Debt Payable m.— Where the 
 ft-ariiishee is indebted, it will not vary hiw liability 
 that his contract with the defendant in to pay the 
 money in another State or. country than that in 
 whieh the attachment is pending : Blake v. Wil- 
 liaim, Pick., 286 ; Sturtevant v. Robinson, 18 Pick, 
 175. 
 
 Fraudulent Attempts to Defeat Garnisknient. — A 
 R-arnishee had been indebted to the judgment 
 delitor, and it api)eared that the debtor said to the 
 garnishee that he was afraid his creditors would 
 attach the debt, and desired the garnishee to give 
 notes payable to a third person, which was done 
 without the (xmcurrence or knowledge of such 
 third person : 
 
 Held, a fraud on the attaching creditor : Camp 
 V. Clarh 14 Vermont, 387. 
 
 So wliere A sold property to B, and unnego- 
 tiable notes therefor were executed to C, a resident 
 in another State, who was unknown to B, and 
 A at the time of selling the property and taking 
 the notes said he was owing some debts that he 
 never meant to pay, and some that he would pay 
 when he was ready ; the Court lield the trans- 
 action fraudulent as to A's creditors, and charged 
 B as his garnishee : Green v. Doughty, 6 New Hamp., 
 572. 
 
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162 SELECTED AMERICAN CASES ON GARNISHMENT. 
 
 Where A, with a view of keeping his property 
 out of the reach of his creditors, and in pursuance 
 of a combination with B for that purpose, sold 
 goods belongii: :: k> him as the property of B, and 
 took from the voi. :^ a negotiable note payable to 
 B at a future day which B assigned before it came 
 due to C, who wat :^cquainted with the transaction ; 
 it was held that the vendee was the debtor of A, 
 and was therefore liable as his garnishee : £Jno8 v. 
 Tuttle, 3 Conn., 27. 
 
 So where a husband traded a manufacturing 
 establishment belonging to himself and partner 
 for a tract of land, taking the conveyance of the 
 land to his wife to defraud creditors, and after- 
 wards sold the land and took a note for the unpaid 
 price to his wife, which remained in her hands 
 until after its maturity and until the maker was 
 garnished by a creditor of the finn of which the 
 husband had been a member : It was held, that as 
 there were involved no rights of innocent assign- 
 ees of the note, the amount thereof was subject 
 to garnishment : Patton v. Gate^, 67 Illinois, 164. 
 
 In all cases where one indebted to another gives 
 an obligation to pay the debt to a third person, it 
 may be considered as a sound rule, that in order 
 to make such obligation effectual to defeat an 
 attachment of the debt as due to the original 
 creditor, it must appear that the obligation to the 
 third person was bona fide, and upon adequate con- 
 sideration, and if the debtor give such an obliga- 
 tion in good faith, not knowing of any fraudulent 
 intent in the other parties, and pay the obligation 
 in the hands of an assignee, he cannot be charged 
 
SELECTED AMERICAN OASES ON GABNiSEMENT. 163 
 
 as garnishee of him to whom the debt was primarily 
 owing : Langley v. Berry, 14 New Hamp., 82 ; Dief- 
 endorf v. Oliver, 8 Kansas, 365. 
 
 Assignment of Debt— No assignment of a debt 
 made after the garnishment of that debt can have 
 any effect to deprive the attaching creditor of his 
 recourse against the garnishee : Stevens v. Pttgh, 
 12 Iowa, 430. 
 
 Costs.— The garnishee will not, where he does not 
 assume the character of a litigant, be chargeable 
 with the costs of the proceedings against him, or of 
 those against the defendant, unless it appear that 
 he has sufficient in his hands for that purpose after 
 satisfying the debt : Gracey v. Coates, 2 McCord, 
 224 ; Johnson v. Delbridge, 35 Michigan, 436 ; but 
 if he contest his indebtedness unsuccessfully, 
 he can be made to pay the costs so occasioned : 
 TJumipson v. Allen, 4 Stewart <fe Porter, 184. But if 
 the garnishee's admission be sustained, he is not 
 liable for costs : Newlin v. Scott, 26 Penn., 102 ; 
 Breading v. Sieqwmth, 29 Penn., 396. 
 
 Judgment.— T\iQve cannot be a judgment against 
 the garnishee for more than sufficient to cover the 
 claim of the attaching creditor and costs, no matter 
 how much more the garnishee may owe the debtor : 
 TyUr V. Winslo^v, 46 Maine, 348. 
 
 Oamishee^s Defence.— WhsitQYQV defence the gar- 
 nishee could urge against an action by the defend- 
 ant for the debt in respect of which he is garnished, 
 he may set up in bar of a judgment against him as 
 
 lutB 
 
 ;«• 
 
 
 I 
 
m 
 
 I 
 
 ( 
 
 164 SELECTED AMERICAN CASES ON GARNISHMENT. 
 
 garnishee : Strmig'a Exeetitor v. Ba88, 35 Penn., 333 ; 
 Edsfm V. Sprout, 33 Vermont, 77. 
 
 Payment by Oamishee.—A. voluntary payment by 
 a garnishee of his debt to the debtor after the gar- 
 nishment and with knowledge on his part of its 
 existence, will not prevent his being charged as 
 garnishee ; Locke v. Tippets, 7 Mass., 149 ; West v. 
 Piatt, 116 Mass., 308; Wilder v. WeatTierhead, 32 
 Vermont, 765; Hughes v. Mrnity, 24 Iowa, 499; 
 Johann v. Rufener, 32 Wisconsin, 195. 
 
 The law casts on the garnishee the onus of 
 proving that payment was made prior to the gar- 
 nishment. He is not entitled to any presumption 
 in his favor : Harris v. Somerset <& K. R. R. Co., 
 47 Maine, 298. 
 
 If a garnishee assumes to determine that the 
 garnishment is defective, and therefore not bind- 
 ing on him, and thereupon pays his debt to 
 the defendant, and his judgment on that point 
 be held erroneous, the payment will not prevent 
 his being charged as garnishee : Paul v. Johiison, 
 9 Phila., 32. 
 
 Pa.ymm,t by Ohegue.—EwQYy alleged payment 
 must be a payment in fact, not a contrivance 
 intended to be a payment or not, as circumstances 
 might subsequently require. Therefore, where a 
 person, being told that he was going to be sum- 
 moned as garnishee of another, gave the other a 
 cheque on a bank and was afterwards garnished, 
 and stated in his answer that he did not know 
 that the cheque had ever been presented to the 
 
 " 
 
 
SELECTED AMEBICAM GASES ON GABNISHMENT. 165 
 
 bank, and that by an understanding between him 
 and the defendant, it was placed in the hands of a 
 1 clerk in the garnishee's store : it was held that the 
 
 garnishee might at pleasure revoke the cheque, and 
 that the giving of it was no payment, and he was 
 held liable as garnishee : Dennie v. Hart, 2 Pick., !k!| 
 
 204. [See, Barnard v. Graves, 16 Pick., 41.] '^^ 
 
 
 ii 
 
 Jointly Liable.— li the garnishee's liability be one !•; ;!■ 
 
 in which another is jointly bound with him, and !i:I5 
 
 his co-debtor not being garnished, pay the debt, ;'m^ 
 
 such paymei^t is a discharge of the garnishee : iij 
 
 Jeiuett V. Bacon, 6 Mass., 60; Nash v. Brophy, 13 ""3 
 
 Metcalf, 476. "'^: 
 
 Payment Under Previous Garnishment. — While a j; | 
 
 voluntary payment after garnishment will not dis- 
 charge the garnishee's liability, a payment under a 
 previous garnishment will have all the force and 
 effect of a pajonent prior to the institution of the 
 suit in which it is sought to charge him, for the t 
 
 operation of the previous garnishment began at the 
 time it was made, and the subsequent payment was 
 only the consummation of a right existing at the 
 time of the second garnishment : New Orleans M. 
 & C. R. R. Co. V. Long, 50 Alabama, 498. 
 
 But a payment made by a garnishee under an ex- 
 ecution against him as such, will not avail where, 
 before payment,the debt he owed the defendant was 
 set apart to the defendant as a portion of his legal 
 exemption of personalty and the garnishee was 
 notified thereof before he made the payment : 
 Wathins v. Cason, 46 Georgia, 444. 
 
166 SELECTED AMERICAN GASES ON GABNISFMENT. 
 
 
 Payment into Court. — If a garnishee under order 
 of the Court pay the money in his hands to the 
 Sheriff, to be held by him pending the litigation, 
 he will be thereby protected against both the 
 plaintiff and defendant in the attachment, because 
 both are bound by the order : Rochereau v. Gh dry, 
 24 Louisiana Annual, 294. 
 
 Unauthorized Payment— li one indebted pay a 
 debt to a creditor of his creditor, without any 
 authority from his creditor and be afterwards gar- 
 nished in a suit against the latter, this unauthor- 
 ized payment will not avail him as a defence, and 
 a ratification of it by the defendant (primary 
 debtor), after the garnishment will be ineffectual, 
 because the juadisponendi in the defendant is taken 
 away by the attachment : Sturtevant v. RoMnson, 
 18 Pick., 175. [See Ainsworth v. Greehe, L. R. 4, 
 C.P.476.] 
 
 Statute of Limitations. — If the debt of the gar- 
 nishee to the judgment debtor is barred by the 
 Statute jf Limitations, he may take advantage of 
 the Statute, just as he could if sued by the defend- 
 ant : Hinhk v. Ourrin, 2 Humphreys, 137 ; Benton 
 V. Lindell, 10 Missouri, 557 ; Gee v. Gumming, 2 Hay- 
 wood (N. C), 398 ; Hazen v. Emerson, 9 Pick., 144 ; 
 James v. Fell&ives, 20 Louisiana Annual, 116. 
 
 Consideration of Garnishee's Debt.~li the con- 
 sideration of the garnishee's debt to the defend- 
 ant (the primary debtor) has failed, the garnishee 
 may take advantage of it. Thus, where the gar- 
 nishee had purchased a tract of land from the 
 
m 
 
 8ELEGTED AMERICAN CASES ON OABNISHMENT. 167 
 
 defendant, the last payment for which was due, 
 but after the note therefor was given, the gar- 
 nishee discovered that there was a judgment 
 against the defendant which bound the land, and 
 which he was compelled to satisfy, and the amount 
 was greater than the amount of the note : It was 
 held, that he could not be charged as garnishee : 
 Sheldon v. Simons, Wright, 724. 
 
 Discharge of Debtor by Creditor.— li a debtor by 
 the default oi his creditor be discharged from his 
 contract, he cannot in respect of that contract be 
 charged as garnishee of his creditor. Thus, where 
 A gave his note to B for five tons of hay deliver- 
 able at a future time on A's farm, and B was not 
 there then to receive it ; it was held that B had no 
 cause of action against A, and that A therefore 
 could not be held as his garnishee: Jewett v. 
 Bacoris 6 Mass., 60. 
 
 Equitable Defence.— In some States the garnishee 
 may set up any equitable defence which shews that 
 in equity he owes no debt to the defendant : Glas- 
 sell V Thomas, 3 Leigh (Virginia), 113. It was 
 therefore held, that a claim of lien on the property 
 should first be satisfied : Williamson v. Gayle, 7 
 Grattan, 152. 
 
 Defence by Garnishee.— Any defence which the 
 garnishee may choose to set up must, in order to 
 be successful, be such as would avail him in an 
 action by the judgment debtor against him. Ex- 
 traneous matters, having no relation to the ques- 
 tion of indebtedness to the debtor, cannot be set 
 
 
 ;iii§ 
 
 ■•"2 
 
 U5 'a; 
 
 xv,i 
 
 \ 
 
168 SELECTED AMERICAN CASES ON GARNISHMENT. 
 
 i 
 
 ! I 111 
 
 up by the garnishee : Jcxnea v. Tracy, 75 Penn., 417 ; 
 Jackson v. Shipman, 28 Alabama, 488. [It is sub- 
 mitted that the garnishee would have all rights of 
 Counter-claim.] 
 
 Contingent Liability. — A garnishee cannot retain 
 from the money in his hands anything to meet a 
 contingent liability which he is under for the 
 debtor. Thus, where the garnishee had held notes 
 of the debtor for a debt, and caused them to be dis- 
 counted by and indorsed to a bank, and they were 
 not yet due when the garnishment took place ; it 
 was held that the garnishee had no claim against 
 the defendant, and that his contingent liability as 
 indorser of the notes was no defence to his being 
 charged as garnishee ; and the Court refused to 
 continue the cause until the maturity of the notes, 
 in order to see whether they would be paid : Smith 
 V. B. C. & M. R. M., 33 New Hamp., 337. 
 
 Attorney'' 8 Fees— Due and Contingent- Where an 
 attorney-at-law was garnished, who had received 
 from the debtor, money as security for several 
 purposes, one of which was to secure such fees as 
 might be due the attorney in any business of the 
 .defendant which the attorney might have in hand 
 for him, " either now or hereafter," the Court while 
 sustaining the garnishee's right to retain enough 
 of the money to pay any fees due or to become 
 due in any business in which he had been retained 
 by the defendant before the garnishment ; yet 
 denied that right as to any business in which the 
 retainer was subsequent to the garnishment, or as 
 
SELECTED AMERICAN GASES ON OAUNISHMENT. 
 
 im 
 
 to busineHS wlii(;h arose afterwards, in wliit^li the 
 garnishee claimed fees merely by virtue of a prior 
 general retainer. This decision was placed on the 
 ground that such a disposition of the money would 
 be a fraud upon creditors : Orain v. Gould, 46 Illi- 
 nois, 293. 
 
 Illegal Ti'ansactioii.— The garnishee cannot escape 
 liability by shewing that the defendant's money in 
 his hands had been received by him through a 
 transaction in violation of law. Thus, where the 
 money in the hands of the garnishee had been 
 received from the sale of intoxicating liquors, made 
 by him as agent of the defendant, which sale was 
 unlawful ; it was held that this constituted no 
 defence by the garnishee : Tkat/er v. Partridge, 47 
 Vermont, 423. 
 
 Set-off. — Whatever claim the garnishee has 
 against the defendant, and of which he could avail 
 himself by set-off legal or equitable in an action 
 between them, will be equally available to him in 
 the same way in the garnishment proceeding, the 
 established principle being that the rights of the 
 garnishee should not be disturbed by the garnish- 
 ment : Wheeler v. Emerson, 45 New Hamp., 526. 
 And if the set-off consist of moneys paid by the 
 garnishee on his verbal assumpsit of debts of the 
 defendant, which he might have avoided by plead- 
 ing the Statute of Frauds, the attaching creditor 
 cannot object to it, for that plea is a personal privi- 
 lege which may be waived, and having been waived 
 by the garnishee his payment cannot be assailed on 
 
 »i 
 
 '•"2 
 
 \ 
 
 
170 SELECTED AMERICAN OASES ON GAUNI8EUENT. 
 
 that ground: McCoy v. Williams, 6 Illinois, 584. 
 [It is submitted that the right of Counter-claim 
 would stand on the same ground as that of set-off, 
 or recoupment.] 
 
 Claim in the Saftie Right. — A garnishee can only 
 set-off against his indebtedness to the defendant a 
 claim in the same right as such indebtedness. 
 Therefore, where a garnishee is indebted to the 
 defendant he cannot set-off a claim he has as 
 administrator of another person against the defend- 
 ant : Thomas v. Hopper, 5 Alabama, 442. 
 
 So if he is indebted individually to the defendant, 
 he cannot set-off a debt due from the defendant 
 to him and another jointly : Gray v. Badgett 5 
 Arkansas, 16. 
 
 So where several garnishees were indebted as 
 co-partners to the defendant, who was indebted to 
 them individually as legatees, it was held that the 
 two debts could not be set-off against each other : 
 Blaiichard v. Cole, 8 Louisiana, 160 ; Wells v. Mace, 
 17 Vermont, 503. 
 
 Where two persons were summoned as garnishees, 
 who were indebted to the vdefendant jointly, it 
 was held that they might set-off against their 
 debt to him not only a claim which they jointly 
 had against him, but the several claim of each 
 of them : Brown v^ Warrein, 43 New Hamp., 430. 
 
 2^«aj6S. — Where a town was ga'mished and 
 attempted to set-off a tax due to it from the defend- 
 ant against his indebtedness to him, the right was 
 denied upon the ground that the debt was in no 
 
SELECTED AMERICAN CASES ON GARNISHMENT. 171 
 
 sense a contract, express or implied : Johnaon v. 
 Howard, 41 Vermont, 122; Hihbard v. Olark, 56 
 New Hamp., 155. [See Revised Statutes of Ontario, 
 Chapter 180, section 100.] 
 
 Set-off Acquired After Garnishment— A set-off " 
 
 accjuired after ^garnishment could not be set-off by I \ 
 
 the j^arnishee as against his liability to the defend- " % 
 
 ant : Boston Type Co. v. Mortiimr, 7 Pick., 166. •; ;« 
 
 III 
 
 Set-off Not Due.— It has been held, on what has :• ^ 
 
 been called principles of " Free equity " and against " '5 
 
 ■c "5k 
 
 many decisions to the contrary, that a garnishee is i:;^ 
 
 not bound to pay over money on garnishee pro- "i 
 
 ceedings where he has an unmatured claim against ^ 
 
 the debtor : Hathaimy v. Russell, 16 Mass., 473. | 
 
 Bepositary.-Where a president of a corporation 
 
 was also a banker and became depositary of the jjjjj 
 
 corporation's money, while he held a large amount Mi 
 
 of its overdue bonds, and to avoid being charged 
 as its garnishee, he attempted to set-off some of 
 those bonds against his liability as depositary ; it 
 was held, that it would be a breach of the confi- 
 dence reposed in him as depositary, as president, 
 and as co-corporator, for him to take such an advan- 
 tage of his position, and he was charged as gar- 
 nishee : Fox V. Eeed, 3 Grant (Penn.), 81. 
 
 Mecoupment— The garnishee cannot be deprived 
 of the right of recoupment or of any like defence : 
 Powell V. Sammons, 31 Alabama, 552; Faxon v. 
 Man8ifield, 2 Mass., 147 ; Doyle v. Gray, 110 Mass., 
 206 ; Rankin v. Sirmmds, 27 Illinois, 352 ; Oota v. || 
 
172 SELECTED AMERICAN CASES ON GARNISHMENT. 
 
 Mishow, H2 Maine, 124 ; Brmim v. Brovm^ 55 Nf w 
 Ham p., 74 ; Thompson v. Allison, 28 Louisiana 
 Annual, 788. 
 
 In'egularitu in Proceedings.— The garnishee can- 
 not avoid or reverse a judgment against him on 
 account of mere irregularities in the proceedings 
 in the main action. They only effect the defend- 
 ant who alone can take advantage of them : Steb- 
 bins V. Fitch, 1 Stewart (Ala.), 180. 
 
 Where Gmmishment a Befenee.—WheYa one has 
 been summoned as garnishee and the judgment 
 debtor, before judgment of condemnation of the 
 debt, sues the garnishee for that debt, the latter 
 may plead the garnishment in abatement : Wallace 
 V. McConnell, 13 Peters, 136 ; Mattingly v. Boyd, 20 
 Howard (Sup. Ct.), 128. [Nathan v. Giles, 5 Taunton, 
 558; Brook v. Smith, 1 Salkeld, 280. Drake on 
 Attachment, 700.] 
 
 Judgment Conchmve. — When by a Court having 
 jurisdiction of the action and the garnishee judg- 
 ment is rendered against him, and he has satisfied 
 it in due course of law, such judgment is conclusive 
 against parties and privies of all matters of right 
 and title decided by the Court, and constitutes a 
 complete defence to any subsequent action against 
 the garnishee for the amount which the latter wa« 
 compelled to pay : Killsa v. Lermond, 6 Maine, 116 ; 
 Holmes V. Remseii, 4 Johnson Chan., 460 ; Adams v. 
 Filer, 7 Wisconsin, 306. This is so, although the 
 judgment may have been obtained by means of 
 fraud or even perjury : Lyford v. DemsHtt, 32 New 
 
SELECTED AMERICAN CASES ON GARNISHMENT. 
 
 173 
 
 Haiiip., im. [See, Tumbull v. Rohertmn, 38 L. T. N. S. 
 
 889,1 
 
 Discharge of Garnishee. — The di'JGharjjre of a crar- 
 nishee in the attachment Buit is no bar to a^i action 
 by iLe defendant for any canHe of m'\ "on existing 
 at the time of the discharge : Pujfer v. Graves, 6 
 Foster, 258, nor does a .judgment in favor of the 
 garnishee in one attachment suit preclude his 
 being charged as garnishee on ax^^count of the same 
 debt in another suit in favor of a different party : 
 Sprtiill V. Trader, 5 Jones, 39 ; Breadina v. Sieg- 
 worth, 29 Penn., 396. 
 
 Action Against Garnishee by his Dehtm'. — In an 
 afjtion against the garnishee, if payment under 
 Judgment is relied on as a defence, the following 
 rules should be observed in order to sustain it : 
 
 (1) The judgment against the garnishee under 
 which he alleges payment, must be proved : Barton 
 V. Smith, 7 Iowa, 85. 
 
 (2) It must have been a valid judgment. If 
 obtained for instance, against a man that was dead, 
 or was otherwise a void judgment, payment under 
 it would be no defence : Loring v. Folger, 7 Gray, 
 505. 
 
 (3) The payment must not have been voluntary 
 unless the law authorized the Court to require the 
 garnishee to pay the money into Court, when such 
 a payment will be regarded as in legal effect, the 
 same as a payment un>r execution : Ohio <& M. 
 R. W. Go. V. Alvey, 43 Indiana, 180. [See, Tumbull 
 V. Robertson, 38 L. T. N. S. 389 ; Wood v. Dunn, L. R. 
 
 
 
 If! 
 
■ n 
 
 174 SELECTED AMERICAN CASES ON GARNIFHMENT. 
 
 2 Q. B. 73 ; Oulverhouse v. Wickms, L. R. 3 C. P. 295.] 
 
 (4) The payment must be actual and not simu- 
 lated or contrived ; thus, where certain persons 
 were charged as garnishees and credited the plain- 
 tiff on their books with the amount of the judg- 
 ment, and debited the defendant with the same 
 amount, but did not in fact, pay the money ; it was 
 held to be no payment: Brown v. Somerville, 8 
 Maryland, 444. [ Wetter v. Rucker, 1 B. & B. 491.] 
 
 (5) The judgment under which the payment was 
 made must have been rendered by a Court having 
 jurisdiction of the subject matter and the parties : 
 Harmon v. Birchard, 8 Blackford, 418 ; Stimpdn v. 
 Maiden, 109 Mass., 393 ; Morgan v. Neville, 74 Penn., 
 52. 
 
 (6) If a Statute implies a condition necessary to 
 be performed before payment, it must be shewn to 
 have been done : Myers v. Urich, 1 Binney, 25. 
 [Syhes v. B. & O. Ry, Co., 22 U. C. R. 459.] 
 
 Regularity of Proceedings.— The garnishee is not 
 to be held responsible for the regularity of the pro- 
 ceedings in the suit in which he is garnished : 
 Parmer v. Ballard, 3 Stewart, 326 ; Burton v. Dis- 
 trict TmimsMp, 11 Iowa, 166. 
 
 Assignment of Debt.— If at any time prior to 
 judgment against the garnishee, he becomes aware 
 of the assignment of the debt and does not bring 
 that fact before the Court, but allows judgment to 
 go against him, the garnishee cannot set-off the 
 garnishment proceedings in an action against him 
 
SELECTED AMERICAN CASES ON GARNISHMENT. 175 
 
 by the assignee of the debt : Prescott v. Hull, 17 
 Johnson, 284 ; Seward v. Heflin, 20 Vermont, 144 ; 
 Marsh v. Davis, 24 Vermont, 868. 
 
 In the United States, the general rule is that the 
 assignee of a chose in action must give notice of his 
 assignment to the debtor in order to perfect his 
 title against garnishment proceedings: Miller v. 
 O'Eanrum, 4 Lea (Tenn.), 398 ; Giddings v. Coleman, 
 12 New Hamp., 153. [But our law is not so : Broim 
 V. McGuffin, 5 P. R. 231 : Robinsmi v. NesUtt, L. R. 
 3 C. P. 264 ; Grant v. McDonell, 39 U. C. R. 412.] 
 
 Malicious Gaimishment.—li a person maliciously, 
 and without reasonable and probable cause, take a 
 garnishment proceeding, in consequen(5e of which 
 the debtor suffers damage, an action will lie there- 
 for : Sanders v. Hughes, 2 Brevard (S. C.) 495 ; 
 Lawreme v. Hagerman, 56 Illinois, 68; Spaids v. 
 Bairett, 57 Illinois, 289. The malice necessary to 
 support this action need not imply malignity, nor 
 even corruption in the appropriate sense of these 
 terms. That which is done contrary to one's own 
 conviction of duty, or with a wilful disregard of the 
 rights of others, whether it be to compass some 
 unlawful end, or some lawful end by unlawful 
 means, or to do a wrong or unlawful act, knowing 
 it to be such, constitutes legal malice : Wills v. 
 Nayes, 12 Pick., 324 ; Culbertson v. Oahem, 29 Texas, 
 247. [See Hicks v. Faulkner, 8 Q. B. D. 168 ; Quartz 
 Gold Hill Mining Co. v. Eyre, 11 Q. B. D. 674 ; 
 Ahrath v. N(yrth Eastern By. Co.,U Q. B. D. 79, in 
 appeal at page 440 ; WinMdv. Kean, 1 Ont. R. 193 ; 
 WUcocks V. H&well, 5 Ont. 360.] 
 
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 176 SELECTED AMERICAN CASES ON GARNISHMENT. 
 
 Prmnise of Zo«/i.— Garnishment is not applicable 
 to compel a garnishee to pay an amount which he 
 had agreed to lend the defendant : Nellis v. Coleman, 
 12 Rep. (Penn.), 797. 
 
 Estoppel.— K garnishee is not estopped from 
 denying his indebtedness to the principal defend- 
 ant by having, previous to suit, admitted the debt 
 to the plaintiffs, knowing that they would act on 
 his admission, if it does not appear that the plain- 
 tiffs have been injured : Warder v. Baker, 54 Wis- 
 consin, 49. 
 
 Foi'eign GaiTiUhment — The plaintiff may shew 
 that it was void because of matters extrinsic to the 
 record : ORourhe v. C. M. & St. Paul R. R. Co., 55 
 Iowa, 322. 
 
 Judgment— If a judgment is void as against the 
 defendant, it is not enforceable against a garnishee : 
 Matheney v. Earl, 75 Indiana, 531. 
 
 Abandonment of Proceedings. — A judgment 
 creditor, after commencing garnishment proceed- 
 ings, allowed them to stand open for two years 
 while he was prosecuting a bill in Cliancery in aid 
 of execution. It was held that he had abandoned 
 his right to proceed with the garnishment : Blake 
 V. Hubbard, 45 Michigan, 1. 
 
 Money Bejjosited. — Money put into the hands of 
 another to be paid to certain persons named on 
 presentation of the depositors' cheques or orders, 
 was held liable to attachment by the depositors' 
 creditors, there being no eviden(5e of previous 
 
nr 
 
 SELECTED AMERICAN CASES ON GARNISHMENT 
 
 177 
 
 agreement or subsequent assent on the part of the 
 persons so named concerning the deposit : Nichol- 
 son V. Crook, 56 Maryland, 55. 
 
 Appeal Against Order.— K garnishee is not justi- 
 fied in immediately paying over the money to the 
 attaching creditor on an order dismissing the 
 attachment proceedings, but should wait a reason- 
 able time for the party complaining of the decision, 
 to perfect the appeal, and more especially should 
 he do so where he has notice that an appeal will 
 be made : Pujf v. Hucher, 78 Kentucky, 146 ; Dan- 
 forth V. Carter, 4 Iowa, 230 ; Danforth v. Rupert, 11 
 Iowa, 547 ; Harrison v. Trader, 29 Arkansas, 85. 
 
 Unliquidated Damages. — The indebtedness aris- 
 ing from a recovery for libel cannot be garnished 
 until after the entry of judgment ; Detroit P. & T. 
 Co. V. Reilly, 46 Mich., 459. [In view of recent 
 authorities it may be questioned if e^en after 
 judgment, it would be garnishable in this Pro- 
 vince : White v. Elliott, 30 U. C. R. 253 ; Ex parte 
 Vine ; In re Wilson, 8 Ch. D. 364 ; Fm^'ester v. 
 Thrasher, 9 P. R. 383 in appeal 2, Ont. R. 38 ; contra, 
 see Jones v. Thompson, E. B. <fe E. 63; Dresser v. 
 Johns, 6 C. B. N. S. 429 ; In re Scarth L. R. 10 Ch. 
 234 ; Hamilton v. Holcomb, 11 C. P. p. 95, 2 E. & A. 
 230.] 
 
 Fraud on Assignee of Mm'tgage.—A mortgagor 
 tried to purchase the mortgage, and failed in doing 
 so. He then procured garnishee process to be 
 served on hiip«elf for a debt due by the mortgagee. 
 In time to defend the garnishment suit on the 
 
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 178 SELECTED AMERICAN CASES ON GARNISHMENT. 
 
 ground of assignment, he became aware of tlie 
 assignment of mortgage, but set up no defence, and 
 on judgment being given paid the money into 
 Court. It was held that the garnishment proceed- 
 ings could not prevail : Dagget v. Flanigan, 78 
 Indiana, 253. 
 
 Pension Money. — By provision in a section of 
 the Revised Statutes of the United States, it is 
 declared that " No sum of money due or to become 
 due to any pensioner, shall be liable to attachment, 
 levy or seizure by or under any legal or equitable 
 process whatever, etc." It was held, that that sec- 
 tion did not apply to pension money received 
 from Government by the pensioner, and deposited 
 by him in a bank, and that such money was subject 
 to garnishment. Webh v. Holt, 26 Albany L. J. 289, 
 57 Iowa, 712. 
 
 Debts Otoing. — Garnishment proceedings reach 
 only to those debts which whether due or not are 
 owing by the garnishee to the debtor at the time 
 of the service of the garnishment process, and 
 where after the service of such process, new and 
 independent contracts are entered into between 
 the garnishee and the debtor, out of which arise 
 liabilities from the former to the latter, such 
 liabilities although fixed before the answer day 
 are not within the scope of or affected by the prior 
 garnishment process : Phelps v. Atchison, T. <& St. 
 F. R. Co., 27 Albany L. J., 116. 
 
ONTARIO JUDICATURE ACT. 
 
 COUNTER-CLAIM. 
 
 The fact that certain provisions of the Ontario 
 Judicature Act have been specially made appli- 
 cable to suits in Division Courts, has rendered it 
 necessary to discuss the question of Counter-claim 
 in these pages. The writer has not confined the 
 following remarks on that proceeding to cases 
 which might arise in the Division Courts only, 
 but has so far as possible, given briefly the points 
 decided in most English and Canadian cases as 
 applicable to the subject of Counter-claim in all 
 Courts. The authorities in English and Canadian 
 Courts so far as they could be discovered, on the 
 general principles of Counter-claim, the reason for 
 its introduction, the right to bring third parties 
 into litigation, and the question of costs in cases of 
 Counter-claim will be found collected here. 
 
 The 77th and 78th sections of the Judicature 
 Act enact as follows : 
 
 77. " Every County and Division Court shall, as 
 regards all causes of action within its jurisdiction, 
 for the time being, have power to grant and shall 
 grant in any proceeding before such Court such 
 relief, redress, or remedy, or combination of 
 remedies, either absolute or conditional, and shall 
 in every such proceeding give such and the like 
 effect to every ground of defence or Counter-claim, 
 
 
 
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 180 COUNTER-CLAIM APPLIED TO DIVISION COURTS. 
 
 equitable or legal (subject to the provision next 
 hereinafter contained), in as full and ample a 
 manner as might and ought to be done in the like 
 case by the High Court of Justice. 
 
 78. "Where in any proceeding before any such 
 County or Division Court any defence or Counter- 
 claim of the defendant involves matter beyond the 
 jurisdiction of the Court, such defence or Counter- 
 claim shall not affect the competence or the duty 
 of the Court to dispose of the whole matter in 
 controversy so far as relates to the demand of the 
 plaintiff and the defence thereto, but no relief 
 exceeding that which the Court has jurisdiction to 
 administer shall be given to the defendant upon 
 any such Counter-claim : 
 
 " Provided always, that in such case it shall be 
 lawful for the High Court or any Division or 
 Judge thereof, if it shall be thought fit, on the 
 application of any party to the proceeding, to 
 order that the whole proceeding be transferred 
 from such Court to the High Court, or to any 
 Division thereof; and in such case the Record 
 in such proceeding shall be transmitted by the 
 Clerk or other proper officer of the County or 
 Division Court to the said High Court ; and the 
 same shall thenceforth be continued and prose- 
 cuted in the said High Court as if it had been 
 originally commenced therein." 
 
 These sections will also incorporate, so far as 
 applicable, into Division Court law, the 127th Rule 
 of the Judicature Act. It is in these words : 
 

 COUNTER-CLAIM APPLIED TO DIVISION COURTS. 181 
 
 "A defendant in an action may Bet-off, or set up 
 by way of Counter-claim, against the claims of the 
 plaintiff, any right or claim whether such set-off or 
 Counter-claim sound in damages or not. 
 
 " Such set-off or Counter-claim shall have the 
 same effect as a statement of claim in a cross- 
 action, so as to enable the Court to pronounce a 
 final judgment in the name action, both on the 
 original and on the cross-chiim. 
 
 " But the Court or a Judge may, on the applica- 
 tion of the plaintiff before trial, if in the opinion 
 of the Court or Judge such set-off or Counter-claim 
 cannot be conveniently disposed of in the pending 
 action, or ought not to be allowed, refuse permis- 
 sion to the defendant to avail himself thereof." 
 
 For the proper consideration of the question of 
 Counter-claim in Division Court actions. Rules 164 
 to 169 inclusive of the Judicature Act, must always 
 be kept in view. The particular procedure which 
 these Rules require, cannot in most respects be 
 applied to Division Court proceedings, but the 
 cardinal rules of law which they enact can and 
 should be applied, and their principles of practice 
 should be observed. 
 
 The Judicature Act confers no new rights. It 
 only changes the procedure of the Courts, and con- 
 firmed the rights which previously existed in the 
 Courts of Law or Equity : Britain v. Rossiter, 11 
 Q. B. D., at p. 12^ per Brett, L. J. 
 
 
 
 
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 THE NATURE AND EFFECT OF 
 COUNTER-CLAIM. 
 
 Prior to the Judicature Act, the right of a defend- 
 ant to make reclamation for damages which he had 
 sustained at the hands of the plaintiff, was of an 
 extremely limited nature. If the claim was for 
 damages of an unliquidated character, his only 
 remedy was by a cross-action, which frequently 
 was of little practical value to him. The law of 
 set-off was very confined in its operation. The 
 Statute of Geo. 2, Chapter 22, section 13, only made 
 provision for " mutual debts between the plaintiff 
 and defendant," or if either party should sue as 
 executor or administrator, where there were mutual 
 debts between the testator or intestate and either 
 party, one debt might be set-off against the other. 
 This Statute was found entirely inadequate for the 
 necessities of ordinary business transactions as will 
 be seen from such cases in England as : Bechwith v. 
 Bullm, 8 E. & B. 683 ; Bees v. Watts, 11 Ex. 410 ; 
 In re Paraguaasu Steam Tramroad Co., Black <& Go's, 
 Case, L. R. 8 Ch., 254-261 ; Best v. Bill, L. R. 8 C. P. 10, 
 and in this Province by such cases as Georgian Bay 
 Lumber Co. v. Thompson, 35 U. C. R. 64 ; Lapp v. 
 Firsthrooh, 24 C. P. 239, and Kilroy v. Simhins, 26 
 C. P. 281. Some further and better remedy was 
 imperatively required in the many cases arising, 
 and that provision was made in England and 
 Ontario by the Judicature Acts. Long before any 
 legislation took place on this subject, either in 
 
THE NATURE AND EFFECT OF COUNTER-CLAIM. 
 
 183 
 
 England or here, the subject of Counter-claim 
 formed an important part of legal jurisprudence in 
 the United States. Many years ago, the right of 
 Counter-clc im was made part of the Code of New 
 York, and in most of the other States of the Union 
 it has found a place among their Statutory enact- 
 ments. The Courts of the different States differ 
 considerably in the effect to be given to it ; some 
 giving a much more extensive interpretation of the 
 right than others : Waterman on Set-off, sections 
 590-624. As recognized in several of the States, 
 Counter-claim only lies where the subject of it was 
 in existence against the plaintiff at the commence- 
 ment of the action, and where it is founded upon a 
 cause of action arising out of the contract or trans- 
 action set forth in the plaintiff's case, or is con- 
 nected with the subject of the action : Waterman' 
 sections 597-602. The words of our Statute, it will be 
 observed, are much more extensive, allowing " any 
 right or claim whether such set-off or Counter- 
 claim sound in damages or not," to be set up by 
 way of Counter-claim, and our Courts have not 
 interpreted that language in a narrow or restricted 
 sense. 
 
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 The legal character of a Counter-claim is well 
 defined by Lord Justice Brett, in the case of 
 Winteriield v. Bradnum, 3 Q. B. D. 324, who says at 
 page 326, that "A Counter-claim is sometimes a 
 mere set-off; sometimes it is in the nature of a 
 cross-action ; sometimes it is in respect of a wholly 
 independent transaction. I think the true mode 
 of considering the claim and Counter-claim is, that 
 
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 184 THE NATUBE AND EFFECT OF COUNTER-CLAIM. 
 
 they are wholly independent suits, which for (con- 
 venience of procedure are combined in one action." 
 In Stooke v. Taylw, 5 Q. B. D. 569, the same opinion 
 is in substance expressed by Cockburn, C. J. At 
 pages 573 and 574 of the report, that learned Judge 
 expresses his opinion in the following language : 
 
 " A defendant, who, having a claim for unliqui- 
 dated damages against the plaintiff suing him, 
 must before have brought a cross-action, is now 
 enabled to meet the plaintiff's claim by Counter- 
 claim, in other words, by a proceeding which, 
 without being in form a cross-action, is so in 
 substance— for that is what a Counter-claim in 
 effect amounts to— and is thus enabled to have his 
 claim tried and disposed of concurrently with that 
 of the plaintiff, so the latter shall gain no advan- 
 tage in point of time, but justice shall at one and 
 the same time be done between the parties. To 
 effect this, the more completely, the plaintiff, if he 
 establishes a claim to a larger amount than the 
 defendant is able to make good on his Counter- 
 claim, is allowed to have judgment for the differ- 
 ence only. J?ut he has, nevertheless, credit for the 
 residue of his claim, so far as he has established 
 it against the Counter-claim of his adversary, and 
 to that extent must, I think, be taken to have 
 recovered it. If he had not recovered it in his own 
 action, he could not have the benefit of it against 
 what in effect is the action of his opponent. 
 
 " In like manner the defendant is entitled by the 
 Statute to have the amount which he may have 
 established on his Counter-claim deducted from 
 
THE NATURE AND EFPSC^ OF GOUNTEBGLAIM. 
 
 IHT) 
 
 the amount of the plaintiff's claim. Why 'i BecauHe 
 h« han recovered it in his action against the 
 plaintiff. 
 
 " It may happen, and sometimes does happen, that 
 the plaintiff fails in making good his claim 
 altogether, while the defendant succeeds in estab- 
 lishing his, and so, on his part, becomes entitled to 
 recover, and has judgment on his Counter-claim. 
 Or the defendant establishes a claim to a larger 
 amount than the plaintiff has been able to make 
 good. Order XXII, Rule 10, provides that in such 
 case the Court may give judgment for the balance. 
 In whose action does he obtain judgment 'i I appre- 
 hend clearly in his own, not in that of the plaintiff. 
 In effect each party establishing his claim recovers 
 to that amount in his own action, though the 
 Statute adjusts the balance between them, and 
 limits the judgment and execution to it." 
 
 See, also, Williams v. Wright, W. N. 1875, p. 232. 
 
 The same extensive signification was given to the 
 language of the Statute in a later case oiBeddall v. 
 Maitland, 17 Ch. D. 174, before Mr. Justice Fry. 
 That learned Judge says at pages 181 and 182 of the 
 report : 
 
 " It is to my mind evident that there is no inten- 
 tion to confine the claim made by the Counter- 
 claimant to damages, or to an action of the same 
 nature as the original action, and therefore, when 
 it is said that the defendant may set up against the 
 claim of the plaintiff a claim of his own, it does not 
 necessarily mean that the claims are to be ejusdem 
 
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I8(i THE NATURE AND EFFECT OP COUNTER-CLAIM. 
 
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 generis, becauHe it wiyH expreHHly, " whether HiK^h 
 Counter-claim sound in dama^eH or not." The 
 plaintiffs right may be in damages ; the defendant's 
 right may be to an injunction or to any other eijui- 
 table relief not sounding in damages ; and there- 
 fore there is nothing to confine the defendant's 
 claim to something in the nature of set-off or to 
 setting up against the claim of the plaintiff 
 merely something which counteracts that (!laim. 
 It is quite true that in Order XX. provision is made 
 to enable the defence to be brought down to a date 
 later than the commencement of the action, and 
 the Master of the Rolls has from that inferred that 
 a Counter-claim, not being mentioned in that Rule, 
 cannot extend down to the same date as a defence. 
 But I read that Rule in a very different way. I 
 think that it introduces this liberty with regard to 
 a defence only, because the liberty was already 
 given by the Statute with regard to a Counter- 
 claim, and therefore it was unnecessary for the 
 Rule to make any reference to a Counter-claim ; and 
 I cannot help observing that the construction of 
 the Master of Rolls appears to be open to this very 
 serious objection, that it requires a defendant who 
 has two causes of action, the one arising before, 
 and the other arising after the date of the original 
 writ, to split his causes of action ; the one he may 
 ventilate by means of a Counter-claim, in respect 
 of the other he must issue an independent writ. 
 Now, I think that the general spirit of the Judi- 
 cature Acts is to prevent multipMtity of litigation, 
 and especially to prevent mulii plicity of procedure, 
 and to enable parties to settle, so far as may be, by 
 
m 
 
 THE NATURE AND EFFECT OF COUNTERCtAIM. 
 
 187 
 
 one hearing and one judgment, all the ((uestionH in 
 controversy between them. If I confine the ambit 
 of the Counter-claim to causes of action arising 
 before the original writ, I interfere in many cases 
 with the power of the defendant so to obtain by 
 one single adjudication the settlement of all ques- 
 tions between himself and the plaintiff." 
 
 To the same effect is the case of Quinn v. Hession, 
 40 L. T. N. S. 70, in the Irish Court of Exchequer. 
 
 A Counter-claim must claim relief against the 
 plaintiff, and he must be a party to it : Harris v. 
 Gamble, 6 Ch. D. 748 ; Fumess v. Booth, 4 Ch. D. 586 ; 
 Turner v. Hednesfwd Ga8 Co., 3 Ex. D. 145. A 
 person cannot be joined as a defendant to Counter- 
 claim against whom there is only a claim for relief 
 in one of two inconsistent alternatives : Evans v. 
 Buck, 4 Ch. D. 432 ; Child v. Stenning, 5 Ch. D. 695. 
 When two or more plaintiffs sue for a joint claim 
 the defendant may set up a separate Counter-claim 
 sounding in damages against each or either of them : 
 Manchester, Sheffield and Lincolnshire My. Co. v. 
 Brooks, 2 Ex. D. 243. It is not essential that the 
 amount claimed by the Counter-claim should equal 
 that claimed by the plaintiff ; Mostyn v. West Mostyn 
 Coal and Iron Co., 1 C. P. D. 145. A claim which 
 the Court of Chancery would before the Judicature 
 Act have restrained a defendant from pleading as 
 a set-off cannot be set up as a Counter-claim : Neivell 
 V. Natimml Pro. Bank of England, 1 C. P. D. 496. 
 A Counter-claim must contain in itself a specific 
 statement of the facts on which the defendant 
 relies as entitling him to the relief or remedy which 
 
 
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 188 THE NATUBE AND EFFECT OP COUNTER-OLAIM. 
 
 he claims : Orotoe v. Bamicot, 6 Ch. D. 753 ; Holloway 
 V. Ywh, 25 W. R. 627 ; Hillman v. Mayhm\ 24 W. R. 
 485, 1 Ex. D. 132 ; but it would seem from Lees v. Pat- 
 terson, 7 Ch. D. 866, that if such of the facts stated in 
 the defence as the defendant relies on as supporting 
 his Counter-claim are sufficiently identified and dis- 
 tinguished by refei^ence in the latter it would be 
 sufficient. Distinct grounds of set-off or Counter- 
 claim should be stated separately. A Counter-claim 
 arising after action brought must be pleaded as so 
 arising, so that the plaintiff may be able to confess 
 it. If it is not so pleaded the plaintiff may apply 
 to strike it out : Ellis v. Munson, 35 L. T. N. S. 585. 
 In the case of The Oiiginal Hartlepool Collieries Co. 
 V. Oihh, 5 Ch. D. 713, it was held that the damages 
 under Counter-claim should be limited to the date 
 of the writ, but that case cannot now be considered 
 law, in view of FMis v. Munson, supra ; Beddall v. 
 Maitland, 17 Ch. D. 174, and Gray v. Wehh, 21 
 Ch. D. 802. 
 
 The " balance " in favor of the defendant under 
 Rule 169 of our Judicature Act would mean the 
 " balance " upon the hearing of the action : Rolfe 
 V. Maclaren^ 3 Ch. D. 106. A defendant cannot 
 obtain a judgment on his Counter-claim until the 
 plaintiff's claim is tried : Aitken v. Dunbar, 46 L. J. 
 Ch. 489. In the case of Canadian Securities Co. 
 V. Prentice, 9 P. R. 324, the facts were these : 
 A promissory note made by the defendant had 
 been held by the Consolidated Bank, and after its 
 maturity the defendant transferred certain timber 
 limits to the bank as collateral security for the 
 
THE NATUBE AND EFFECT OF COUNTER-CLAIM. 189 
 
 payment of the note, which limits the bank sold. 
 The plaintiffs became holders of the note for valne 
 after di&honor and after the timber limits trans- 
 action, and brought this action upon the note. 
 A Counter-claim against the plaintiffs and the 
 bank by the defendant, setting up that the bank 
 had sold the timber limits without authority and 
 for an insufficient price, and were thereby guilty 
 of a breach of trust, and claiming that the defendant 
 should be permitted to set-off so much of his claim 
 therefor against the bank as would satisfy the 
 balance claimed on the note, was held bad and 
 struck out as not being properly a Counterclaim. 
 
 Per Cameron J., unless required by the clear 
 legal rights of the defendant for his protection 
 against the plaintiff's action, Counter-claims are 
 not to be favored : Ihid. The latter opinion is at 
 variance with the view expiessed by Fry J., in 
 Beddall v. Maitland, at pages 181 and 182 of 17 Ch. D. 
 That Judge there says : " I think the general spirit 
 of the Judicature Acts is to prevent multiplicity of 
 litigation, and especially to prevent multiplicity of 
 procedure, and to enable parties to settle, so far as 
 may be, by one hearing and one judgment, all the 
 questions in controversy between them." 
 
 A plaintiff cannot, by discontinuing an action 
 after a Counter-claim has been delivered, put an end 
 to it, sot as to prevent the defendant from enforcing 
 against him the cause of action contained in the 
 Counter-claim : McGmvan v. Middletmi, 11 Q. B. D. 
 464. This decision expressly overrules the previous 
 
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 190 THE NATURE AND EFFECT OF COUNTER-CLAIM. 
 
 ■caBe of Vavassew v. Kvupx>, 15 Ch. D. 474, which 
 held the contrary. Courts will give effect to equita- 
 ble rights, although not set up by way of Counter- 
 claim : Mostyn v. West Mostj/n Coal and Iron Co., 
 1 C. P. D. 145 ; Bpre v. miffhes, 2 Ch. D. 148 ; Bres- 
 lamr v. Barwich 36 L. T. N. S. 52. 
 
 !;!i«,i- 
 
 111 
 
 
 M 
 
TO WHAT CASES COUNTER-CLAIM 
 APPLIES. 
 
 In an action by a landlord for rent, the tenant may 
 Het up by way of Counter-claim, a claim for damages 
 for breach of an implied covenant in the leawe : 
 Mostyn v. West Mostyn Coal and Iron Co., 1 C. P. D. 
 145. But a person named in a defence as a party 
 to a Counter-claim thereby made, cannot Counter- 
 claim against the defendant : Street v. Gover, "2 
 Q. B. D. 498. 
 
 It is optional with a defendant, to set ui) a 
 Counter-claim, and his not doing so does not bar 
 his right to take any proceedings he would other- 
 wise have a right to take : Hindley v. Haslam, 3 
 Q. B. D. 481. In an action on a (covenant on a 
 building contract, the defendant pleaded by way 
 of set-off and Counter-claim, that he was entitled 
 to damages for breaches of contract to complete 
 and deliver the buildings at the specified time, 
 whereby the defendant lost the use of them ; it 
 was held that the defendant was not entitled to 
 recover against the plaintiff, but was entitled by 
 way of set-off or reduction from the plaintiff's claim 
 to the damages which he had sustained by the non- 
 performance of the contract, and that the form of 
 the defence must be amended accordingly : Young 
 v. Kitchin, 3 Ex. D. 127. 
 
 A defendant must not bring a third party before 
 the Court as defendant to a Counter-claim against 
 
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 192 
 
 TO WHAT CASES COUNTER-CLAIM APPLIES. 
 
 the plaintiff, unless the relief to be obtained against 
 him relates specifically to or is connected with the 
 subject matter of the action, nor must a Counter- 
 claim be so framed as to be calculated to embarrass 
 and delay the plaintiff : Padwick v. Scott, 2 Ch. D. 
 736, The Bianca, 8 P. D. 91 : LocMe ami the AmeH- 
 can Lumber Co. v. Tennant, 5 Ont. R. 52 ; Wye Val- 
 ley Ry. Go. V. Hawes, 16 Ch. D. 489. A reply joining 
 issue generally, will not upon the application of the 
 defendant be ordered to be struck out or amended 
 because it does not deal specifically with the alle- 
 gations of a Counter-claim : Rolfe v. Maclaren, 8 
 Ch. D. 106, but the authority of that case appears 
 to have been disregarded in Benbow v. Low, 13 
 Ch. D. 553. A person cannot be joined as a defend- 
 ant to a Counter-claim against whom there is only 
 a claim for relief in one of two inconsistent alterna- 
 tives : Evans v. Buck, 4 Ch. D. 432 ; Child v. 
 Stenning, 5 Ch. D. 695. 
 
 In an action against a first mortgagee by a second 
 mortgagee for an account of what was due to them 
 respectively, and to have a contract for sale entered 
 into by the first mortgagee completed, and the sale 
 moneys applied a(5Cordingly, the purchaser was 
 made a co-defendant with the plaintiff? io a 
 Counter-(;laim for specific performance by the 
 purchaser with the c;oncurrence of the plaintiffs ; 
 it was held that the purchaser was properly made a 
 defendant to the Counter-claim : Dear v. Sworder, 
 4 Ch. D. 476. In an action for trespass, the plain- 
 tiff was a lessee of W ; the defendant in his 
 defence and Counter-claim to which he made W a 
 party, claimed a right of way by grant from W 
 
TO WHAT CASES COUNTER-CLAIM APPLIES. 
 
 198 
 
 prior to the plaintiff's lease, and prayed a declara- 
 tion of his rig-hts, and an injunction and damages 
 against the plaintiff, and in the alternative he 
 prayed an indemnity and damages against W ; it 
 was held that the Counter-claim was bad in not 
 showing a csluzz of action against W : Child v. 
 Stenning, 5 Ch. D. 695. 
 
 Where a Counter-claim sought indemnity, it was 
 held that the indemnity must be confined to the 
 specific property which was the subject of the 
 action : Harris v. Gamble, 6 Ch. D. 748. 
 
 To an action by executors for the purpose of 
 charging a married woman's separate estate with a 
 debt to their testator, contracted on the faith of 
 such separate estate, the husband, who had been 
 made a defendant, and his wife raised a Counter- 
 claim for money belonging to the wife, not part of 
 her separate esiate, and for certain chattels in the 
 possession of the testator at his death, which it was 
 alleged were the property of the husband ; it was 
 held that the claim to the chattels and money was 
 a proper subject of Counter-claim : Hodson v. 
 MocU, 8 Ch. D. 569. 
 
 Although the question whether a Counter-claim 
 should be excluded under the 168th Rule of our 
 Judicature Act, is not so entirely in the discretion 
 of the Judge of first instance as to preclude an 
 appeal, he has a discretion which will not be 
 interfered with by the Court on appeal except in a 
 very strong case : Huggons v. Ttveed, 10 Ch. D. 359 ; 
 Gray v. Wehb, 21 Ch. D. 802. A defendant must 
 not set up by way of Counter-claim against the 
 
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 HI 
 
 as:, 
 
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 "1 
 ■'1 
 
 'i 
 
 
ii 
 
 i 
 
 194 
 
 TO WHAT OASES COUNTER-CLAIM APPLIES. 
 
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 lit 
 
 11 
 
 claim of a plaintiff suing only in a distinct per- 
 sonal character, claims against him personally and 
 also as an executor : Macdonald v. CarHngton, 4 
 C. P. D. 28. A very strong case is required to be made 
 out to induce the Court to order a change to the 
 Chancery Division on a Counter-claim of an equit- 
 able nature being set up: Storey v. Waddle, 4 
 Q. B. D. 289. In the English Admiralty Court it 
 was held that in a cause for wages and disburse- 
 ments, instituted on behalf of a Master, himself a 
 co-owner against other part-owners, the defendants 
 might plead in answer that on a balance of account 
 between the plaintiff as Master and co-owner, and 
 the defendants, nothing was due to the plaintiff : 
 The City of Mobile, L. K 4, A. & E. 191. Where to 
 an action brought to recover the arrears of a pen- 
 sion due by virtue of the Incumbents Resignation 
 Act of 1871, the defendant by way of set-off and 
 Counter-claim, pleaded that a larger sum than the 
 amount of pension was due to him from the plain- 
 tiff on a judgment, and he claimed to recover the 
 balance ; it was held that as there could be no set- 
 >T to a pension created under that Act, the set-off 
 : "^"l Counter-claim must be dismissed : Gathercole 
 V .Smi^A, 7Q.B. D.626. 
 
 A Counter-claim may refer to statements of fact 
 in the pleadings on which the defendant relies 
 without setting them out in extenso. 
 
 The defendant, a mortgagee in an action in the 
 Chancery Division to set aside his mortgage, 
 obtained judgment in the Queen's Bench Division 
 to enforce his security, which was not to be 
 
TO WHAT CASES COUNTER-CLAIM APPLIES. 
 
 195 
 
 enforced without leave of the Jud^'e of the 
 Chancery Division. He then Counter-claimed for 
 leave to enforce that judgment, or in the alterna- 
 tive, for judgment for what was due to him in 
 respect of the mortgage. A motion was made to 
 exclude the Counter-claim ; and it was held that 
 as no action could have been brought when judg- 
 ment had already been obtained in the Queen's 
 Bench Division, the Counter-claim was wrong and 
 must be struck out : Birmingham Estates Co. v. 
 Smith, 13 Ch. D. 506. Where the issues of fact on 
 the claim and the Counter-claim were identical ; it 
 was held that the plaintiff was not entitled to 
 adduce fresh evidence in reply on the Counter- 
 claim : Green v. Sevin, 13 Ch. D. 589. In the case 
 of Mollmi V. Kilhy, 15 Ch. D. 162, one M commenced 
 an action against K. K delivered a defence and 
 Counter-claim, to which M and I were defendants ; 
 it was held that I could not exhibit interrogatories 
 for the examination of M, I and M not being 
 opposite parties. 
 
 Where a defendant in a partnership action set 
 up by Counter-claim an agreement by the plaintiff 
 for sale to the detendant, of his (the plaintiff's) 
 interest in the partnership at a stated price ; it was 
 held that the defendant was not entitled to have 
 the issue raised by his Counter-claim tried before 
 the plaintiff's issues in the action : Piercy v. Young, 
 15Ch. D.475. 
 
 The provision that no cause of action except 
 those specified in the Rule shall, unless by leave 
 of the Court, be joined with an action for the 
 
 
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196 
 
 TO WHAT (JASES COUNTER-CLAIM APPLIES. 
 
 
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 recovery of land, applies to a Counter-claim as well 
 as to an original action, and an order was made to 
 exclude a Counter-claim on the ground that in it 
 such a joinder of (auses of action had been made 
 without the leave of the Court, and that the fair 
 trial of the action would be embarrassed : Compton 
 V. Prestmi, 21 Ch. D. 138. Where a defendant who 
 has delivered a Counter-claim has died, it is neces- 
 sary that his representatives, if they wish to prose- 
 cute the Counter-claim against the plaintiff in the 
 original action, should obtain an order of revivor 
 against him, but an order of revivor of the original 
 action obtained by the plaintiff against them does 
 not authorize the representatives to prosecute the 
 Counter-claim against him : Andrmv v. Aithen, 21 
 Ch. D. 175. A plaintiff may in his reply to a 
 Counter-claim of the defendant Counter-claim in 
 respect of a cause of action accrued after the issue 
 of the writ but arising at the same time and out of 
 the same transaction as the Counter-claim of the 
 defendant : Toke v. Andrews, 8 Q. B. D. 428. See, also, 
 Beddall v. Maitland, 17 Ch. D. 174 ; Ellis v. Munson, 
 35 L. T. N. S. 585 ; Quinn v. Hesmm, 40 L. T. N. S. 
 70 ; Stoohe v. Taylor, 5 Q. B. D. 569 ; WinterfieU v. 
 Bradnum, 3 Q. B. D. 324. A person not a party to 
 an action when made a defendant to a Counter- 
 claim, is not entitled to enter an appearance gratis: 
 Fraser v. Cooper, Hall <& Co., 23 Ch. D. 685. In an 
 action for an unliquidated demand, the defendant 
 pleaded, admitting the claim, but setting up 
 a Counter-claim for unliquidated damages to a 
 greater amount. The Court refused an application 
 under Order XL, Rule 11 (Rule 322 of our Judica- 
 
 m 
 
 ill!" 
 
TO WHAT CASES COUNTER-CLAIM APPLIES. 
 
 197 
 
 ture Act), for an order to si^n jud^^ment for the 
 plaintiffs upon the (^laiin and payment of the 
 amount thereof by the defendant into Court, to 
 abide the result of the action : Mersey Stearmhij) 
 Co. V. Shuttleworth, 10 Q. B. D. 468, affirmed in appeal, 
 11 Q. B. D 531. An action was brought on a mort- 
 gage given for the balance of purchase money of 
 land ; it was held that the defendant might 
 Counter-claim by setting up fraud in the trans- 
 action and seeking a return of the money paid 
 with interest : Lee v. McMdhmi, 2 Ont. R. 654. See, 
 also, BartJwlemew v. Rawlings, W. N. 1876, p. 56. 
 As to moving for judgment against a party in 
 default where Counter-claim is pleaded : See 
 Street v. Orump, 25 Ch. D. 68. See, also, Caroli v. 
 Hirst, W. N. 1883, p. 115. 
 
 An action was brought by an infant to recover, 
 as heiress of her mother, possession of certain land 
 leased by her deceased father to the defendant for 
 a tenn of years not expired, and for mesne profits ; 
 the defendant set-up a year's tenancy, and alleged 
 that the plaintiff's claim for mesne profits had been 
 satisfied by distresses for rent, and set up a Counter- 
 claim making the bailiff a party, and claiming 
 damages against the plaintiff and the bailiff for 
 illegal distress ; it was held that the Counter-claim 
 was a proper one and should not be struck out : 
 Dochstader v. Phipps, 18 L. J. N. S. 75 ; 9 P. R. 204, 
 S. C. An action, was brought for wages, and it was 
 held that the Master had a right to Counter-claim 
 for damages sustained by reason of the servant's 
 improperly leaving his employment: Aioherry v. 
 
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 wm 
 
 198 
 
 TO WHAT CASES COUNTER-CLAIM APPLIES. 
 
 McLean, 19 L. J. N. S. 335. In ejectment the defend- 
 ant was allowed to set up a Connter-claim for 
 dower out of the lands in question : Glass v Glass, 
 9 P. R. 14. A Counter-claim has been allowed in 
 respect of short deliveries of cargoes of goods in an 
 action for the price of other goods : Cappeleus v. 
 Broivn, W. N. 1875, p. 231, so also, a set-off of a 
 County Court judgment was allowed in an action 
 on a judgment of the Court of Exchequer : Sandys 
 V. Louis, W. N. 1875, p. 249. A Counter-claim for 
 damages for breach of an agreement to let and for 
 specific performance, was allowed to stand in an 
 action for rent : Atwood v. Miller, W. N. 1876, p. 11. 
 
 Plaintiff, jointly with defendant B, entered into 
 a contract with defendant E, to work a trading 
 adventure on lands belonging to E. Plaintiff by 
 his claim alleged that E had obtained the contract 
 from him and defendant B by misrepresentation, 
 and asked for rescission, and in the alternative for 
 dissolution. Defendant B delivered a pleading, 
 which was at the same time his defence in the 
 action, a reply to a Counter-claim by E, and a new 
 claim as in an action against E : Held that he was 
 entitled to prosecute in this action his claim against 
 E, and that delivery to the defendant E of the said 
 pleading should be notice under the Statute of the 
 claim of the defendant B against him : Bagot v. 
 Eastmi, 11 Ch. D. 392. 
 
 In an action by the assignee of a policy of marine 
 insurance the insurers are not entitled to set-off 
 a debt incurred with them by the assured for 
 premiums on policies effected with them by the 
 
 I- 
 m 
 
TO WHAT CASES COUNTER-CLAIM APPLIES. 
 
 IIM) 
 
 RHHiired after the date of the asBipriiment ; for the 
 (•laiiTi under a policy for a Iohh is for iinli(|iiidated 
 damages to which no set-off could be pleaded at law 
 under the Statutes of set-off in an action by the 
 assured, nor in equity in a suit by the assignee, 
 and therefore the debt incurred by the assured is 
 not a " defence " open to the insurers under 81 and 
 32 Vict., Chap. 86, section 1, that Statute being 
 intended merely to amend procedure, and not to 
 alter the rights of the parties to the policy ; nor is 
 the debt incurred by the assured the subject of 
 " set-off " or " Counter-claim " within the meaning 
 of the Rules of the Supreme Court, Order XIX, 
 Rule 8, (Ontario Judicature Act, Rule 127.) Pellas 
 V. Neptune Marine Ins. Co., 5 C. P. D. 34. 
 
 As to striking out Counter-claims as improper, 
 the reader is referred to Lee v. Oolyer, W. N. 1876, 
 p. 8; Nicholson v. Jachsmi, W. N. 1876, p. 38 ; Nay- 
 lor V. Fai^'er, W. N. 1878, p. 187 ; Atwood v. Miller, 
 W. N. 1876, p. 11 ; Bartholomeio v. Rawlin^fs, W. N. 
 1876, p. 56 ; Huggmis v. Tweed, 10 Ch. D. 359 ; Quinn 
 V. Session, 40 L. T. N. S. 70 ; Wavell v. National 
 Fro. Bank of England, W. N. 1876, p. 7 ; Macdonald 
 V. Bode, W. N. 1876, p. 23 ; Rmnann v. Brodrecht, 9 
 P. R. 2 ; Canadian Securities Co. v. Prentice, 9 P. R. 
 324. The result of the Rules of the Judicature Act 
 appears to be that practically, though not entirely, 
 it is a matter of discretion with the Judge whether 
 he will allow the Counter-claim to be set up or not : 
 Anglo-Italian Bank v. Wells, 38 L. T. N. S. 197 ; 
 Huggmis v. Tweed, 10 Ch. D. 359 ; and the Court of 
 Appeal will rarely interfere with the Court below 
 
 ■"» I 
 
 I 
 
 IJ. 
 
20() 
 
 TO WHAT CASES COUNTER-CLAIVI APPLIES. 
 
 ••►■'■'II 
 
 lit 
 
 on thiH i)oiiit : Htiggorm v. Tweed, fmjyra. In Thonip- 
 Hon V. Woodiim, 38 L. T. N. S. 753, the Claim and 
 Couiiter-(daiin were ordered to he Heparately tried, 
 and the mode of trial explained. Where no fac^ty 
 are ntated Hpeoifically in support of the Counter- 
 (;laim a reply joining? iHHue generally on the 
 defence and Counter-claim Ih nufficient: Hillrnan 
 V. Mayhew, 24 W. R. 485, 1 Ex. D. 132. 
 
 it 
 
 mm 
 
 I: 
 
RELIEF AGAINST THIRD PARTIES UNDER 
 JUDICATURE ACT. 
 
 The third parties clauses of the Judicature Act 
 will be found in Rules 164 to 169 inclusive. They 
 are as follows : 
 
 5. " Where a defendant by his defence sets up 
 any Counter-claim which raises questions between 
 himself and the plaintiff along with any other 
 person or persons, he shall add to the title of his 
 defence a further title similar to the title in a 
 statement of claim, setting forth the names of all 
 the persons who, if such Counter-claim were to be 
 enforced by cross-action, would be defendants to 
 such cross-action, and shall deliver his defence to 
 such of them as are parties to the action within the 
 period within which he is required to deliver it to 
 the plaintiff. 
 
 6. " Where any such person as in the last preced- 
 ing Rule mentioned is not a party to the action, he 
 shall be summoned to appear by being served with 
 a copy of the defence, and such service shall be 
 regulated by the same Rules as are hereinbefore 
 contained with respect to the service of a writ of 
 summons, and every defence so served shall be 
 indorsed in the Form No. 19 in Appendix (B) hereto, 
 or to the like effect. 
 
 7. "Any person not a defendant to the action, 
 who is served with a defence and Counter-claim as 
 
 ^-^ 
 
 Hi 
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 3 
 
 a 
 
 
202 
 
 BELIEF AGAINST THIRD PARTIES. 
 
 
 Ml ij 
 
 aforesaid, must appear thereto as if he had been 
 served with a writ of summons to appear in an 
 action. 
 
 8. " Any person named in a defence as a party to 
 a Counter-claim thereby made, may deliver a reply 
 within the time within which he might deliver a 
 defence if it were a statement of claim. 
 
 9. "Where a defendant, by his statement of 
 defence, sets up a Counter-claim, if the plaintiff, or 
 any other person named in manner aforesaid as 
 party to such Counter-claim, contends that the 
 claim thereby raised ought not to be disposed of 
 by way of Counter-claim, but in an independent 
 action, he may at any time within three weeks 
 from the delivery of such statement of defence, 
 apply to the Court or Judge for an order that such 
 Counter-claim may be excluded, and the Court or 
 a Judge may, on the hearing of such application, 
 m t :e such order as shall be just. 
 
 10. "Where in any action a set-off or Counter- 
 claim is established as a defence against the plain- 
 tiff's claim, the Court may, if the balance is in 
 favor of the defendant, give judgment for the 
 defendant for such balance, or may otherwise 
 adjudge to the defendant such relief as he may be 
 entitled to upon the merits of the case." 
 
 The power to set up a Counter-claim claiming 
 relief against a third person not already a party to 
 the action, is limited to cases (1) where the relief 
 sought relates specifically to, or is connected with, 
 the subject matter of the action : Packvick v. Scott, 
 
 ;.'i.' 
 
 i!i. 
 
 IL 
 
RELIEF AGAINST THIBD PARTIES. 
 
 203 
 
 2 Ch. D. 736 ; Trelevm v. Bray, 1 Ch. D. 176 ; Quinn 
 V. Hesmm, 40 L. T. N. S. 70 and (2), the relief sought 
 is claimed against the plaintiff as well as the third 
 person : Fumess v. Booth, 4 Ch. D. 586 ; Harris v. 
 Gamble, 6 Ch. D. 748 ; WaTmsr v. Twining, 24 W. R. 
 536 ; Evans v. Btich, 4 Ch. D. 432 ; Dear v. Sworder, 
 4 Ch. D. 476 ; McLay v. SJiarp, W. N. 1877, p. 216. 
 It is no objection that the third party could not 
 have been a party to the plaintiff's original claim : 
 Turner v. Hednesford Gas Co., 3 Ex. D. 145. A third 
 party against whom there is only a claim for relief 
 in one of two inconsistent alternatives, cannot be 
 joined : Evans v. Buck, 4 Ch. D. 432 ; Child v. 
 Stenning, 5 Ch. D. 695. Where the relief sought as 
 between co-defendants does not extend to the 
 plaintiff, for instance : for indemnity under Rule 
 107, a notice under that Rule is the proper mode of 
 proceeding : Central African Trading Co. v. Grove, 
 40 L. T. N. S. 540. A contest between co-defendants 
 merely, is not the subject of Counter-claim : Fur- 
 ness V. Booth, 4 Ch. D. 586 ; Harris v. Gamble, 6 
 Ch. D. 748. Such notice may in this case be given 
 by delivering a pleading disclosing a defence as 
 against the plaintiff, and a claim as against the 
 co-defendant : Bright v. Mamer, W. N. 1878, p. 211. 
 in order to entitle a defendant to serve a notice 
 on a third person under Rules 107 and 108 of the 
 Ontario Judicature Act, it is not necessary that 
 the whole question between the plaintiff, the 
 defendant and the third person should be identi- 
 cal ; It is sufficient, if it be prima facie made out, 
 that a material question in the action is also a ques- 
 tion between the defendant and the third person : 
 
 ;:3 
 
 
 
 
vii 
 
 hi I 
 .1 11 
 
 I'll .;.J 
 
 204 
 
 RELIEF AGAINST THIRD PARTIES. 
 
 Swansea Shipping Go. v. Duncan^ 1 Q. B. D. 644. If 
 there is one question common to all the parties, 
 though the whole question to be tried between the 
 plaintiff and defendant is not the same as that 
 which would arise between the defendant and the 
 third person, the notice can be given : Bower v. 
 Hartley^ 1 Q. B. D. 652. In Honmll v. London 
 Omnibus Co., 2 Ex. D. 365 : it was held, in an action 
 for tort for injury sustained by the plaintiff 
 through the defendants' negligence, that the 
 defendants were not entitled to have third parties 
 through whose negligence it was alleged the 
 injury was committed, added as defendants. An 
 objection, by the defendant, that other persons 
 should be joined as plaintiffs, should be made 
 promptly and before the hearing : Sheehan v. Great 
 Eastern Ry. Co., 16 Ch. D. 59. 
 
 rhe plaintiffs had purchased property from the 
 defendant for £14,000, and claimed in this action 
 to have £2,000 part thereof returned to them. The 
 defendant was being sued in the Exchequer Divis- 
 ion by persons who claimed the £2,000 as commis- 
 sion moneys. The Court refused to make an order 
 that the plaintiffs in the Exchequer Division 
 should be served with a third party notice or made 
 defendants to this action under Order XVI, Rule 
 17 (Ontario Judicature Act, Rule 107) : Associated 
 Hmne Co. v. Whichccyrd, 8 Ch. D. 457. 
 
 The plaintiff, jointly with defendant B, entered 
 into a contract with the defendant E to work a 
 trading adventure on lands belonging to E. Plain- 
 tiff by his claim alleged that E had obtained the 
 
 i' 
 
BELIEF AGAINST THIRD PARTIES. 
 
 205 
 
 1 
 
 contract from him and defendant B by misrepre- 
 sentation, and asked for rescission, and in the 
 alternative for dissolution. The defendant B de- 
 livered a pleading, which was at the same time his 
 defence in the action, a reply to a Counter-claim 
 by E and a new claim as in an action against E- 
 It was held, that defendant B was entitled to 
 prosecute in this action his claim against E, 
 and that delivery to the defendant E of the said 
 pleading, should be notice under the Statute of the 
 claim of the defendant B against him : Bagot v. 
 Eastmi, 11 Ch. D. 392. The Court would not allow 
 the third party notice to be given where the giving 
 of it would materially embarrass the plaintiffs in 
 the conduct of their action : Wye Valley Ry. Co. 
 V. Hawes, 16 Ch. D. 489. 
 
 The plaintiff having sued for breach of contract 
 in respect of goods, the defendants under Order 
 XVI, Rule 18 (Ont. Judicature Act, Rule 108) 
 brought in as a third party P, from whom they 
 themselves had bought the goods. The defendants, 
 afterwards, under Order XVI, Rule 21 (Ont. 
 Judicature Act, Rule 111), applied for directions 
 as to the mode of having the questions in the 
 action determined ; but the Court refused to give 
 any directions. The defendants delivered a claim 
 to the third party, who in turn delivered them 
 a defence. The action having been tried between 
 the plaintiff and the defendants, the latter de- 
 livered a reply to the third party and gave n iice 
 of trial. It was held that the reply and notice 
 of trial must be set aside, for it must be taken 
 
 
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 206 
 
 BELIEF AGAINST THIRD PARTIES. 
 
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 that the action came to an end, as regarded the 
 third party, when the Court refused to give direc- 
 tions : Schneider v. Batt, 8 Q. B. D. 701. In an action 
 in a County Court on a promissory note made by 
 the defendant, in which the plaintiff claimed 
 indemnity against the third party : the third 
 party having appeared, the Judge of the County 
 Court directed certain issues to be tried between 
 the defendant and the third party. At the trial 
 he found for the plaintiffs and investigated 
 accounts between the defendant and the third 
 party amounting to more than $10,000, upon which 
 he found that a balance of more than $3,000 would 
 be payable to the defendant, and he directed that 
 the third party should, out of this balance, pay to 
 the defendant the amount of the plaintiff's claim. 
 It was held that the order directing the issue 
 between the defendant and the third party and the 
 proceedings taken under it were right, and that the 
 Judge of the County Court did not exceed his juris- 
 diction : Neald v. C&rhindale, 20 L. J. N. S. 72, 4 
 Ont. R. 317. [See, also, Davis v. Flagstaff Silver 
 Mining Co. of Utah, 3 C. P. D. 228.] 
 
 The new Supreme Court Rules in England differ 
 in some respects in regard to bringing in a third 
 party as defendant from the Rules of 1873, and 
 from the Rules of our Judicature Act. The words 
 "" or other remedy or relief over " to be found in 
 Order XVI, Rule 18 of the Supreme Court Rules of 
 1873, and in Rule 108 of our Judicature Act, are 
 omitted from the English Rules of 1883, conse- 
 quently it was held in Speller v. Bristol Steam 
 
 1 
 
BELIEF AGAINST THIBD PARTIES. 
 
 207 
 
 Navigation Co., W. N. 1884, p. 119, that the omission 
 of these words only gave the right to bring in a 
 third party where a defendant claimed to be 
 entitled to contribution or indemnity over, and 
 that to be entitled to indemnity within the mean- 
 ing of that Rule, there must be a contract to 
 indemnify. 
 
 It will be seen by a reference to the decisions on 
 the subject, that the Courts are averse to allowing 
 third parties to be brought into litigation in 
 matters which do not concern the plaintiff. If he 
 has any interest in third parties being introduced 
 as litigants, or if justice cannot be done between 
 the original parties to the litigation, without mak-. 
 ing some one else in some way connected with the 
 yubject of the litigation a party to it, then such 
 person should be made a party. This is not done 
 because his interests demand it, but because full 
 justice cannot be done between the original parties 
 to the suit without his introduction as a party. 
 The object of the legislature as interpreted by the 
 Courts is, that so far as possible the rights of all 
 parties to a transaction should be tried and adjudi- 
 cate.d upon in one lawsuit, once and for all — Per 
 M. R. in Swansea Shipping Co. v. Duncan, 1 Q. B. D. 
 at p. 649. At the same time, it would be a great 
 hardship on the plaintiff that a third party should 
 be brought into the litigation for the mere purpose 
 of settling differences between him and the defend- 
 ant. Whenever the introduction of such a party 
 to the plaintiff's prejudice has been attempted, it 
 has received the reprobation of the Courts : Mamer 
 
 m 
 
 1 
 
 1 
 
 I 
 
 •'«: 
 ^ 
 
Mm 
 
 208 
 
 BELIEF AGAINST THIRD PARTIES. 
 
 mm 
 
 hxurA 
 
 I^^Ji^'r 
 
 5 
 
 V. Bright, 11 Ch. D. 394 ; The OartsJmm, 5 P. D. 59 ; 
 Romann v. Brodrecht, 17 L. J. N. S. 340 ; Brodrecht 
 V. Fich, 9 P. J * Oanadian Securities Go. v. Prentice, 
 9 P. R 324 '' :..,rie and The American Lumber 
 Go. V. TennanU 5 Ont. R. 52. The result of authority 
 on this quesdoi' app-^ s to be aptly expressed by 
 Butt, J. in the case ol The Bianca, 8 P. D. at page 
 93, who says : " I see no sufficient reasons in 
 face of the plaintiffs' opposition, why I should 
 embarrass the issue between them and the defend- 
 ants with any further question as to the rights and 
 liabilities of the defendants and third parties inter 
 se. It is obvious from the pleadings that it is 
 extremely probable that questions will arise 
 between the defendants and third parties totally 
 different and distinct from those which are neces- 
 sary for the decision of the action as between the 
 plaintiffs and the defendants." The same opinion 
 was in substance expressed in the earlier cases of 
 Treleven v. Bray, 45 L. J. N. S. Ch. D. 113 ; Benecke 
 V. Frost, 1 Q. B. D. 419 ; Swansea Shipping Go. v. 
 Duncan, 1 Q. B. D. 644 ; Norris v. Beazley, 2 C. P. D. 
 80, and by the Common Pleas Division of our own 
 High Court in the case of The Gorporatimi ofDundas 
 V. Grilmour, 2 Ont. R. 463. See, also, In re Milan Tram- 
 xoays Go., Ex parte Theys, 22 Ch. D. 122 ; Barber v. 
 Blaiberg, 19 Ch. D. 473. The latest case on the subject 
 appears to be Lockie and The American Immber Go. 
 V. Tennant, 5 Ont. R. 52. It was there held that a 
 third party should only be joined as a defendant 
 before trial, and that in any case the adding of a 
 third party as a defendant should only be done for 
 

 BELIEF AGAINST THIRD PARTIES. 
 
 209 
 
 the purpose of binding him by the judgment 
 against the original defendant, and in order that 
 the original defendant may obtain indemnity 
 against a third party, he must bring a separate 
 action. 
 
 :3 
 
 
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 ■ S( ''Pi 
 
 COSTS ON COUNTER-CLAIM. 
 
 h; 1^ 
 
 I-;?' ''^yiji. 
 
 ,i. I ! 
 
 in 
 
 The early cases in the English Courts in regard 
 to costs on Counter-claim are conflicting, and very 
 little instruction can be gained from them. By re- 
 ference to Staples V. Young 2 Ex. D. 324 ; Blake v. 
 Appleyard, 3 Ex. D. 195 ; Potter v. Chambers, 4 
 C. P. D. 69 ; Davidson v. Gray, 40 L. T. N. S. 192 ; 
 Hallvman v. Price, 27 W. R. 490, this will appear. 
 
 The later cases have pretty well settled the 
 principles on which Courts should act in such 
 cases. For instance, in Saner v. Bilton., 11 Ch. D. 
 416, where the plaintiff's claim and the defendant's 
 Counter-claim were both dismissed with costs : it 
 was held that the plaintiff should pay to the 
 defendant the general costs of the action, and the 
 defendant pay to the plaintiff only the amount 
 by which the costs were increased by reason of the 
 Counter-claim. This case was approved of in Mason 
 V. Brentini, 15 Ch. D. 287. The same opinion is 
 expressed in Baines v. Brmnley, 6 Q. B. D. 691, by 
 Lord Justice Brett, in the English Court of Appeal. 
 The same question arose in the later case of In re 
 Brawn, Ward v. Morse, 23 Ch. D. 377, in which the 
 two previous cases are fully reviewed. Commenc- 
 ing at page 384 of the report. Lord Justice Bagallay 
 lays down the law on the question in the following 
 language. That learned Judge says : 
 
 'V^i 
 
COSTS ON COUNTER-CLAIM. 
 
 211 
 
 " The question involved in this appeal appears to 
 be this— in a case where there have been claim and 
 Counter-claim, and both have been successful, but 
 the whole amount recovered on the Counter-claim 
 exceeds the whole amount recovered on the claim, 
 how and in what way the costs common to both 
 proceedings are to be disposed of. To some extent 
 we have authority in the case of Saner v. Bilton, 11 
 Ch. D. 416, and Mason v. Brentini, 15 Ch. D. 287. 
 In each of those cases both parties failed, the claim 
 and Counter-claim being both dismissed with costs, 
 the costs of the action to be paid by the plaintiff to 
 the defendant, and the costs of the Counter-claim 
 to be paid by the defendant to the plaintiff, and 
 the question raised on the taxation was whether 
 all the proceedings which related to the claim and 
 the Counter-claim were to be apportioned, or 
 whether the defendant was to pay only so much of 
 the plaintiff's costs as were occasioned by the 
 Counter-claim, and the Court decided that the 
 plaintiff was to pay the general costs of the action 
 and the defendant only the costs of the proceed- 
 ings so far as they had been increased by reason of 
 the Counter-claim. The case of Saner v. Bilton, 
 was decided by Mr. Justice Fry in 1879, and his 
 decision was followed by the Court of Appeal in 
 Mason v. Brentini. The case of Baines v. Bromley, 
 6 Q. B. D. 691, before the other branch of the 
 Appeal Court, is in form more like the present, 
 because in that both parties succeeded. There the 
 plaintiff obtained on his claim a verdict for £114 
 17s., and the defendants on their Counter-claim a 
 verdict for £230, Os. 9d., and the Judge directed 
 
 f] 
 
 
 i 
 
 J 
 
212 
 
 COSTS ON COUNTER-CLAIM. 
 
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 lis,:; 
 
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 that .judgment should be entered for the plaintiff 
 on his claim, and judgment for the defendants to 
 recover on the Counter-claim for ^115, 3s. 3d., being 
 the difference between the two sums, and by the 
 judgment as entered \t was adjudged that the 
 
 plaintiff recover against the defendants £ for 
 
 his costs of suit, and that the defendants recover 
 against the plaintiff £115, 3s. 3d. on the Counter- 
 claim, and £ for their costs of the Counter- 
 claim ; and the question before the Court was how 
 and in what way those costs should be disposed of. 
 The Court decided that, on taxing the costs, accord- 
 ing to the judgment, the plaintiff was entitled to 
 the general costs of the action. In that case, the 
 principle of taxation to be adopted was summed 
 up by Lord Justice Brett in the following words 
 (6 Q. B. D. 695) : " I have, however, a firm opinion 
 that where there is a claim with issues taken on it, 
 and a Counter-claim, not a set-off, but in the nature 
 of a cross-action with issues on it, and where the 
 plaintiff succeeds on the claim and the defendant 
 on the Counter-claim, the proper principle of tax- 
 ation, if not otherwise ordered, is to take the claim 
 as if it and its issues were an action, and then to 
 take the Counter-claim and its issues as if it were an 
 action, and then to give the allocatur for costs for 
 the balance in favor of the litigant in whose favor 
 the balance turns. In such a case where items are 
 common to both actions, the Master would divide 
 them." He then draws a distinction between the 
 case where there is a Counter-claim or separate 
 action, and where the so-called Counterclaim is by 
 way of set-off only, in which case there is only one 
 
COSTS ON COUNTER-CLAIM. 
 
 213 
 
 action, and the dersion arrived at was, as I have 
 before mentioned, that the plaintiff was entitled to 
 the general costs of the action. 
 
 " Apart from the authority of that case, it ai)pears 
 to me that the principle of Saner v. Bilton, 11 Ch. D. 
 416, although that was a case where both parties 
 failed, should be equally applicable to a case where 
 both parties have succeeded. The plaintiff should 
 recover from the defendant the costs of action, 
 except so far as they are attributable to the 
 Counter-claim, and the defendant should recover 
 from the plaintiff the costs of the Counter-claim. 
 If there are any costs which can be properly con- 
 sidered common to both suits, e. g.^ a brief fee, if 
 there is only one brief both on the claim or 
 Counter-claim, or the fees of assessors, or those on 
 a reference, or other items which can be fairly con- 
 sidered to be common to both proceedings, they 
 should be divided. But apart from this 'lualifica- 
 tion, I think that Saner v. Bilton, 11 CL. D. 416, 
 equally applies whether claim or Counter-claim 
 both fail or both succeed." 
 
 An action was brought on an unsettled account 
 to which there was Counter-claim, and also on an 
 unsettled account, and all was referred. The re- 
 feree found that there was a sum of $148.81 due the 
 plaintiff, and $164.50 due the defendant on his 
 Counter-claim, leaving a balance of $15.69 due the 
 defendant, and he certified to entitle the defendant 
 to full costs. It appeared that the Statute of Limi- 
 tations was pleaded respectively to the claim and 
 Counter-claim, and the items barred by the Statute 
 
 
214 
 
 COSTS ON COUNTERCLAIM. 
 
 m 
 
 sat'' ■« 
 
 fi > ■ 
 
 were in consequence disallowed, but that apart 
 from the Statute the balance would havt* been in 
 the plaintiff'8 favor. On motion to enter judgment 
 the only question was as to the distribution of tlie 
 costs. 
 
 Held, that the plaintiff was entitled to recover 
 the costs of and relating to his claim and proof 
 thereof, including the reference and subsecpient 
 proceedings, and that the defendant was entitled 
 to recover the sum of $15.69 with the costs of and 
 relating to his Counter-claim and the proof thereof, 
 including the reference and subsequent proceed- 
 ings, the Master to decide as to the items in 
 common, and that judgment should be entered for 
 the party in whose favor the balance should be 
 found: Coughlin v. Hollingsujorth, 20 L. J. N. S. 
 107, 5 Ont. R. 207. 
 
 The plaintiff claimed a balance in respect of the 
 contract price of work done. The defendants 
 pleaded by way of set-off and Counter-claim, claim- 
 ing against the plaintiff in respect of the inferi- 
 ority and defective character of the work. The 
 action was referred to an official referee, who found 
 that a balance remained due to the plaintiff on his 
 claim of i232 IBs. 6d. with costs of suit, and that 
 the defendants should recover on the Counter- 
 claim the sum of ^34 10s. 6d. and costs of the 
 Counter-claim. 
 
 The Court ordered judgment to be entered as 
 follows, namely: That the defendants should 
 recover £>1 12s. Od. and the costs of the action, on 
 the ground either that the inferiority of the work, 
 
COSTS OiV '^'OUNTER-OLAIM. 
 
 215 
 
 
 though in form pleaded as Counter-claim, really 
 amounted to a defence, or that even if the plaintiff 
 were technically entitled by the findings to the 
 costs of the action, the case was one in which the 
 Court ought to interfere, under Order LV, Rule 1 
 (Rule 428 of our Judicature Ac1 /, and give the costs 
 to the defendant who had substantially succeeded 
 in the action : Loioe v. Holme, W. N. 1883, p. 36. 
 This Rule of necessity re]>eals all previous Statutes 
 as to costs, and gives the Judge a discretion in re- 
 spect to them : Gamett v. Bradley, 3 App Cas. 944 
 H. L. A defendant who admits the cause of a(;tion 
 sued upon and sets up a Counter-claim founded on a 
 distinct claim is not entitled to security for costs 
 from a plaintiff, although the latter may be a 
 foreigner residing without the Jurisdiction : Win- 
 teriield v. Bradnum, 3 Q. B. D. 324. 
 
 ^1 
 
 I 
 
 % 
 
 \ 
 
ADDITIONAL CASES 
 
 AND POINTS ON DIVISION COURT LAW. 
 
 i 1 
 
 1^ 
 
 HI' 
 
 Residence of Defendant— Where the right to sue 
 in any particular division of a Division Court de- 
 pends on the question of residence of the defend- 
 ant, or one of the defendants, such residence must 
 be a bona fide residence : Baker v. Wait L. R. 9Eq. 
 103. 
 
 Security for Oosts.— Where an order is made for 
 security for co^ts in a Division Court suit, such se- 
 curity may be given by one good and sufficient 
 bondsman. Fletcher v. Noble, 19 L. J. N. S. 253. 
 
 Splitting Claims.-— The plaintiff was in the em- 
 ployment of the defendant as manager of a mine 
 of which the defendant was the contractor. He 
 issued two plaints in a County Court against the 
 defendant, one for £30 due him for salary, and the 
 other for £S0 paid by him at the mine, for and at 
 the request of the plaintiff. 
 
 ITeld, that these two claims were separate and dis- 
 tinct ; that there was no splitting of claims, and 
 that the two plaints could isfeue : Richards v. 
 Marten, 23 W. R 93. 
 
 Prohibition Not the Remedy. — Prohibition will 
 
 I i^ii 
 
ADDITIONAL CASES AND POINTS ON D. C. LAW. 
 
 217 
 
 not lie to the County Court in England (or the 
 Division Court in Ontario), however erroneous its 
 decision may be where there is jurisdiction : Norris 
 V. Carrington, 16 C. B. N. S. 396. [The principle of 
 this case will also be found expressed or recognized 
 in the following cases : Toft v. Rayner, 5 C. B. 162 ? 
 Lexden and Munster Union v. Southgate, 10 Ex. 201 ; 
 Ellis V. WatU 8 C. B. 614 ; In re Grass v. Allan, 26 
 U. C. R. 123 ; Zohrab v. Smith, 5 D. & L. 635 ; B. v. 
 Twiss, L. R. 4 Q. B. 407 ; Foster v. Temple, 5 D. & L. 
 655 ; Still v. Booth, 1 L. M. & P. 440 ; Ohivers v. 
 Savage, 5 E. <fe B. 697 ; Braivn v. Cooking, L. R. 3 
 Q. B. 672 ; Elston v. Bose, L. R. 4, Q. B. 4 ; South 
 Eastern By. Co. v. Baihvay Commissioners, 6 
 Q. B. D. 586. In the opinion of the writer, sufl5.cient 
 regard has not hitherto been paid to the principle 
 recognized in the above cases, or to the ground on 
 which prohibition is properly grantable, but on 
 the contrary an evident desire has been too fre- 
 quently evin(5ed to grant prohibition in matters of 
 Division Court jn-ocedure whenever the opinion of 
 the Judge might differ on questions of practice or 
 evidence with that of the Judge in the Division 
 Court] 
 
 Setting Aside Award— A2)2)eal.— There is no 
 appeal in England against the decision of a 
 County Court Judge in an application to set aside 
 an award which had been refused, nor would there 
 be against a similar decision by a Division Court 
 Judge here : Mayer v. Farmer, 3 Ex. D. 235. 
 
 Interpleader— Damages.— In interpleader proceed- 
 ings in County Courts in England, special damages 
 
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 218 ADDITIONAL CASES AND POINTS ON D. C. LAW. 
 
 may be awarded the claimant of the goody seized 
 under 30 and 31 Victoria, Chapter 142, section 31 : 
 Death v. Harrison. L. R. 6 Ex. 15. [It could not be 
 done under our Division Courts Acts.] 
 
 Altering Judgment. — A Division Court Judge 
 (50uld not, except by consent or after a new trial, 
 alter a judgment which he had formally given : 
 Irving v. Askew, L. R. 5 Q. B. 208. 
 
 Judgment in D. O. ConclvMve. — A judgment in a 
 Division Court would preclude a party from raising 
 in another Court a material question determined 
 against him by such judgment : Flitters v. Allfrey 
 L. R. 10 C. P. 29. [See also Millett v. Coleman, 33 
 L. T. N. S. 204 ; Hunter v. Vanstone, 7 App. R. 750 ; 
 Mason v. Wirral Highway Board, 4 Q. B. D. 459.] 
 
 Committal for Contempt. — A Judge of a Division 
 Court would have no power to commit any one for 
 contempt which had not occurred in the face of the 
 Court : i?. V. Lefroy L. R. 8, Q. B. 134. [See also 
 Martin v. Bannister, 4 Q. B. D. 491. 
 
 Cmnmittalfor Non-payment. — A judgment debtor 
 having made default in payment of the judgment 
 debt which had been recovered against him in an 
 English County Court, and which he had been 
 ordered to pay forthwith, the County Court Judge 
 made an order for his committal to prison for forty 
 days. The debtor was arrested thereon, but was 
 subsequently discharged on the ground of his 
 being privileged, at the time of such arrest, as a wit- 
 ness returning from the Sessions. The debtor was 
 
ADDITIONAL CASES AND POINTS ON D. C. LAW. 219 
 
 again and whilst the order for committal was still 
 in force, summoned upon a judgment summons, 
 and a second order for his committal for the same 
 default in not paying the judgment debt, was made 
 by the County Court Judge : 
 
 Held, that the Judge had no power to make such 
 second order, as the first had not been executed : 
 Hormail v. Bruce, L. E. 8 C. P. 378. 
 
 Held, also, in the same case by two of the Judges, 
 that where a judgment debt is not payable by 
 instalments, there is no power under the Debtors' 
 Act of 1869 (32 and 33 Victoria, Chapter 62, section 
 5), to commit the debtor more than once for default 
 in not paying such debt. 
 
 [A power to imprison without the intervention 
 of a jury ought not to be exercised except upon 
 strong grounds, per Martin B., in Day v. Caw, 7 Ex. 
 887. The 189th section of our Division Courts Act 
 declares that a debtor may be committed from time 
 to time for a new fraud or other default. See Neil- 
 sm V. Jarvis, 13 C. P. 182 ; Evans v. Wills, 1 C. P. D. 
 229.] 
 
 Jurisdiction.— K. claim indorsed on a writ of " £50 
 and interest at the rate of £5 per cent, per annum, 
 from the date hereof until payment or judgment," 
 was held a claim exceeding £50 within the meaning 
 of the English County Courts Act 1867, section 7 : 
 Insley v. Jmies, 4 Ex. D. 16. 
 
 Right to Jury. — Either party as of HgJit, can have 
 his case tried by a jury if the necessary conditions 
 exist and terms complied with : Ford v. Taylor, 3 
 C. P. D. 21. iln re Martin, Hunt v. Chambers, 20 
 
 I 
 
 \ .\\ 
 
 
220 ADDITIONAL OASES AND POINTS ON D. C. LAW. 
 
 * 1 
 
 Ml. , 
 
 111' 
 
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 ^ 
 
 
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 |»'l"»i* 
 
 in 
 
 i 
 t 
 
 Ch. D. 365 ; Bank B. N. A. v. Eddy, 9 P. R. 468, page 
 61, antei\ 
 
 Post-Dating Judgment. — A Judge in a Division 
 Court case could not, by allowing his .indgment to 
 be post-dated, extend the time prescribed for 
 appealing beyond the Statutory time from delivery 
 of judgment : Wilher force v. Smoton, 39 L. T. N. S. 
 474 : [Hsmming v. Blanton, 42 L. J. C. P. 158 ; 
 Richardson v. Silvester, 29 L. T. N. S. 395 ; Barker v. 
 Palmsr, 8 Q. B. D. 9.] 
 
 Judges Notes. — At the hearing of an appeal the 
 Court may, if it thinks fit, dispense with the Judge's 
 notes : Morgan v. Davies, 3 C. P. D. 260, or if there 
 were accidentally no Judge's notes forthcoming, 
 might order the appeal to be heard on viva voce 
 evidence : The Gmiiidmce, 40 L. T. N. S. 201. 
 
 Notes compiled by the Judge of a County Court 
 after the trial from evidence wholly on affidavits 
 in Court were received in the Court of Appeal 
 in England : Hill v. Persse, 25 W. R. 275. 
 
 Waiver of Tm^.— Parties to an appeal from a 
 Division Court may waive the limit of the Statu- 
 tory time for appealing : Ward v. Ratv, L. R. 15 
 
 Eq. 83. 
 
 Death of Respondent on Appeal.— U. on an appeal 
 from a County Court in England, the respondent 
 dies before the appeal is heard, the appellant will 
 be allowed to proceed with his appeal on giving 
 notice to the representatives of the deceased re- 
 spondent, or if no such notice can be given, upon 
 
ADDITIONAL CASES AND POINTS ON D. C. LAW. 
 
 221 
 
 giving notice to the parties interested : Hemming 
 V. Williams. L. E. 6 C. P. 480. 
 
 V. Williams, L. R. 6 C. P. 480. 
 
 Costs of Appeal. — In appeal cases costs are gener- 
 ally allowed : Conyheare v. Farries, L. R. 5 Ex. 16 ; 
 Ashby V. Sedgwich, L. R. 15 Eq. 245 ; Booth v. Turle, 
 L. R. 16 Eq. 182. 
 
 PvoMbition — Discretion. — A entered a notice dis- 
 puting the plaintiffs claim in a Division Court 
 suit, and objecting to the jurisdiction of the Court, 
 but did not appear at the trial, when the Junior 
 Judge of the County of York, upon proof of the 
 plaintiff's claim and such facts as in the absence of 
 proof to the contrary, established a prima facie 
 case of jurisdiction, entered a judgment in favor 
 of the plaintiff for $44.75. On a motion for prohibi- 
 tion on the ground of want of jurisdiction : 
 
 Held, by Rose, J. (following Archibald v. Buskey, 
 7 P. R. 304), that the granting of prohibition, under 
 the circumstances, was discretionary ; that it would 
 be unfair to place upon the Judge trying the case 
 the burden of cross-examining the witnesses to 
 ascertain jurisdiction ; that if Si prima fade case of 
 jurisdiction is made out, the defendant has himself 
 to blame if it is not displaced, and as neither a 
 good defence on the merits was shown, nor dis- 
 patch used in making the application, the motion 
 was refused with costs: Re Friendly v. Needier 
 (to be reported in 10 P. R.) 
 
 ProhiMtion — Increased Jurisdiction of Division 
 Court. — In an action in the 9th Division Court of 
 the County of Hastings, on a promissory note for 
 
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 iii 
 
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222 ADDITIONAL CASES AND POINTS ON D. C. LAW. 
 
 
 
 llii 
 
 j! •» ■ 
 
 .;;■« 
 
 |f!?"f' 
 
 *200 and interest, the Junior Judge of the County 
 who tried the case, entered .judgment for P2Q0, the 
 amount of the note, $7.17 accrued interest and 
 costs : 
 
 Held, by Rose, J. on a motion for prohibition, 
 that the wording of the 2nd section of the Division 
 Courts Act, 1880, is clear, viz. : "All claims for the 
 recovery of a debt or money demand, the amount or 
 balance of which does not exceed $^00,'''' and the motion 
 was granted : McCvachen v. Oreswick, 8 P. R. 501, 
 and In re Widmeyer v. McMahan, 32 C. P. 187, 
 referred to and distinguished : 
 
 Held, also, that as the Judge who tried the case 
 does not allow County Court costs in similar cases, 
 the plaintiff was obliged to sue in the Division 
 Court at the risk of prohibition, or in the County 
 Court and lose his costs, that the defendant should 
 get no costs of this motion unless he successfully 
 resists the suit to be subsequently brought to 
 recover the amount of the note : He Young v. Mor- 
 den (to be reported in 10 P. R.) 
 
 Rules an Appeal frmn J). {7.— Power has been 
 given by Statute to certain Judges to frame Rules in 
 respect to appeals from Division Courts : Ontario 
 Jtidicature Act, section 54, sub-section (c). 
 
 Want of Jurisdiction— Costs.— FoTmerlY the law 
 was said to be that a Judge of a Division Court 
 had no power to award costs where the action 
 failed for want of jurisdiction : (Sinclair's D. C^ 
 Act, 51, 179), but now the power to give costs against 
 a plaintiflE in the absence of jurisdiction to try the 
 
ADDITIONAL CASES AND POINTS ON D. C. LAW. 
 
 ')')'« 
 ^^o 
 
 oawe iw conferred on the Judge by the 489th Rule of 
 the Judicature Act. It is in these words : 
 
 4. "In all actions, suits or other proceedings 
 brought in any County or Division Court in 
 Ontario, in which the plaintiff fails to recover 
 judgment by reason of sach Court having no juris- 
 diction over the subject matter thereof, the said 
 County Court, or the Judge presiding in the said 
 Division Court, as the case may be, shall have 
 jurisdiction over the costs of such action, suit or 
 other proceeding, and may order by and to w^hom 
 the same shall be paid, and the recovery of the 
 costs so ordered to be paid may be enforced by the 
 same remedies as the costs in actions, suits or pro- 
 ceedings within the proper competence of the said 
 Courts respectively are recoverable." 
 
 [See, In re Haycoch^s Policy, 1 Ch. D. 611 ; In re 
 Sutton's Trusts, 12 Ch. D. 175 ; B. v. Hart, 45 U. C. R. 
 1. In applications for postponement of trials, the 
 granting of postponement frequently imposes a 
 hardship on the opposite party by reason of the 
 necessity for bringing counsel a second time to 
 attend the trial on his behalf. There is no power 
 to tax a counsel fee in addition to the ordinary 
 costs of the day. But where a party appeals to the 
 discretion of the Court, as he does in an applica- 
 tion for postponement, it would not be unjust to 
 apply to him the rule that he who seeks equity 
 should do equity. Some Judges adopt the view 
 that unless the party applying will consent to reim- 
 burse the opposite party the amount disbursed for 
 counsel fee, it is a reasonable and equitable ground 
 for not postponing the trial. The justice of this 
 
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 224 
 
 ADDITIONAL CASES AND POINTS ON D. C. LAW. 
 
 H- 
 
 view iw almost a matter of every day observation 
 and experience, and finds much favor in law from 
 the case of R. v. Hart, 45 U. C. R. 1, and the cases 
 there cited. 
 
 Hiring for a Year—Statute of Frauds.— K con- 
 tract to serve for one year, the service to com- 
 mence on the second day after that on which the 
 contract is made, is a contract not to be performed 
 within a year within the meaning of the 4th section 
 of the Statute of Frauds. 
 
 A contract which is not enforceable by reason of 
 that section, is nevertheless an existing contract 
 and is not void altogether, but a fresh contract 
 cannot be implied from acts done in pursuance of 
 it. The doctrine of part performance of the con- 
 tract does not apply to such cases, but is confined 
 to suits as to the sale of interests in land : Britain 
 V. Mossiter, 11 Q. B. D. 123. [See, also, Caiothome v. 
 Gordrey, 13 C. B. N. S. 406.] 
 
 Actum on County Court Judgment. — It was held in 
 the case of Re Eberts v. Brooke, 20 L. J. N. S. 175, by 
 Gait J., that an action is not maintainable in a 
 Division Court on a County Court judgment (see 
 ante, page 104), but that decision has since been re- 
 versed on appeal, 4 C. L. Times, 282. 
 
 Sum in Dispute.— A^ to the meaning of tlie 
 expression " The sum in dispute " within the 2nd 
 section of the D. C. Act of 1880, see Jai/ce v. Hart, 1 
 Sup. R. 321 ; ODmwhoe v. WUtty, 9 P. R. 361 ; 
 Macfarlane v. Leclarie, 15 Moore, P. C. 181 S. C. 8 
 Jur. N. S. 267 ; 19 L. J. N. S. 283 ; The Gmerom, 
 L. R. 2 A. &. E. 57. 
 
ADDITIONAL CA8E8 AND POINTS ON D. C. LAW. 225 
 
 Suhstitutimial Sei^ice.— The principle on which 
 substituted service is allowed is, that there is a 
 probability of the defendant being reached by the 
 process : Wolverhampton and Staffordshire Bank- 
 ing Co. V. Band, 43 L. T. N. S. 721 ; [Furber v. King, 
 29 W. R. 535 ; Orkney v. Shanahan, 8 L. R. Irish, 155 ; 
 Robertson v. Mero, 9 P. R. 510.] 
 
 Jurisdiction under D. O. Act, 1880— Wheve an 
 action is brought to recover the price of a parcel of 
 goods sold and delivered, and for which a bill of 
 exchange was taken, the creditor cannot, on dis- 
 honor of the bill, recover costs on any higher than 
 the Division Court scale by ignoring the existence 
 of the bill of exchange and suing for the price of 
 the goods. Per Wilson C. J., that it made no kind 
 of difference when the price became ascertained by 
 the signature of the defendants under the Division 
 Courts Act of 1880, whether it was at the time of 
 the original transaction or at any time afterwards, 
 so long as it was before action brought. Also, that 
 the taxing oificer might look at the pleadings, and if 
 necessary receive affidavits, so as to ascertain the 
 facts of a case, with a view of determining on what 
 scale costs should in such a case be taxed : White 
 Seiving Machine Co. v. Belfry, 10 P. R. 64. ; [Munday 
 V. Asprey, 13 Ch. D. 855, and Sinclair's D. C. Act 
 1880, p. 9.] 
 
 Striking out Counter-claim. — In an action by the 
 plaintiffs as endorsees of a bill of exchange, the 
 defendant (the acceptor), set up that the bill was 
 part of the price of goods bought by him from H. 
 <fe G. the drawers, and filed a Counter-claim against 
 
 
 
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226 ADDITIONAL CASES AND POINTS ON D. C. LAW. 
 
 iTtll 
 
 i'-l 
 
 > s 
 
 'V 
 
 the plaintiffs and H. & G. as defendants by 
 Counter-claim, claiming that the bill was trans- 
 ferred to the plaintiffs after maturity, with full 
 notice and knowledge of the facts, and claiming 
 $10,000 damages from H. & G. for breach of contract 
 in respect of the goods, and asking for the delivery 
 up and cancellation of the bill and other bills in 
 the same transaction. 
 
 Upon the application of H. & G. the Counter- 
 claim and the names of H. &. G. as defendants, 
 were struck out. Semhle, that as against the plain- 
 tiffs, the defence should have been pleaded as a 
 defence to the claim on the bill : Tmrarwe v. 
 Livingstone^ 10 P. R. 29. 
 
 Absconding Debtor— Debt not Due. — Proceedings 
 against an absconding debtor cannot be taken 
 under the Absconding Debtors' Act (Rev. Stat. 
 Ont., Chapter 68), until after the maturity of the 
 debt : Kyle v. Barnes, 10 P. R. 20. [It is submitted 
 that the same principle must apply to proceedings 
 in the Division Court.] 
 
 Counter-claim in Action on Promissoi'^y Note. — In 
 an action on a promissory note which had been 
 given for certain goods manufactured by the agent 
 of the plaintiff company, and which such agent 
 represented that they possessed curative or medici- 
 nal qualities and were saleable, and thereby 
 induced the defendant to buy a quantity ; it was 
 held that as the jury found the articles sold were 
 valueless, and that the defendant had been induced 
 to purchase by the misrepresentations of the agent, 
 and liad received no consideration for the note, 
 
 hi 
 1 1 
 
ADDITIONAL CASES AND POINTS ON D. C. LAW. 
 
 227 
 
 exc^ept as to some of the goods wliicjh he had sold, 
 he the defendant was entitled to Counter-claim for 
 that part of the amount of the note which he had 
 been obliged to pay an innocent holder, and that the 
 plaintiff could not recover ; for the partial failure 
 of consideration, being for an amount capable of 
 definite computation, could be set up as an answer 
 pro tanto, and the consideration received had been 
 more than covered by the sum paid. 
 
 It was also held, that the defendant was entitled 
 to recover against the plaintiff company the 
 damages sustained, without having previously 
 offered to return the goods : Star, Kidney Pad Co. 
 v. Greenwood, 5 Ont. E. 28. 
 
 [As to partial failure of consideration for a 
 promissory note, see, Orser v. Mounteny, 9 U. C. R. 
 382 ; Coulter v. Lee, 5 C. P. 201 ; Henderson v. Cotter, 
 15 U. C. R. 345 ; Q'Brim v. Ficht, 18 U. C. R. 241 ; 
 Lundy v. Carr, 7 C. P. 371 ; Agra and Masterman's 
 Bank v. Leightm, L. R. 2 Ex. 56 : Kilroy v. Simkins, 
 26 C. P. 281 ; Barber v. Morton, 7 App. 114.] 
 
 Official Liquidator— Garnishment— Money in the 
 hands of the oflSicial manager of a company being 
 wound up and applicable for payment of a sum 
 due to the judgment debtor is garnishable : Ex 
 parte Turner, 30 L. J. Ch. 92 ; 2 De G. F. &. J. 354. 
 
 Unascertained Debt — Garnishment. — An un- 
 doubted debt, though one the amount of which is 
 unascertained, is the subject of garnishment: 
 Daniel v. McCarthy, 7 Irish C. L. R. 261. 
 
 ProhiUtion— Judge's Notes.— On an application 
 
 I 
 
228 
 
 ADDITIONAL CASES AND POINTS ON D. C. LAW. 
 
 for prohibition, the Judge'n notes at the trial 
 Hhould be ac(;ompanie(l by his report of the case : 
 Fleming v. Livingstom, P. R. 68. 
 
 Prohibitum — Matters of Practice.- Vvolxihiimn 
 will not be allowed to go on mere matters of prac- 
 tice : Ellia v. Watt, 8 C. B. 614 ; Re McLean v. Mc- 
 Leod, 5 P. R. 467 ; Fee v. Mcllhargey, 9 P. R. 329 ; 
 Re Foster v. Hough, ante, 103. 
 
 Prohibition— When to Apply Fo7:—A prohibition 
 may go in the first instance without the question 
 of jurisdiction being raised by any proceeding in 
 the Division Court, but when a party applies 
 without having raised the question in the Court 
 below he will not be allowed costs : Nerlich v. 
 Clifford, 6 P. R. 212. [But see In re Bixan v. Snarr, 
 6 P. R. 336.] 
 
 Prohihition — Acquiescence. — It was held t^ 
 where an action is brought in a Division Coui 
 which neither the cause of action arose nor tiie 
 defendant resides, and it proceeds to judgment 
 with the defendant's acquiescence, his right to 
 move for prohibition afterwards is gone : Robert- 
 son V. Coimwell, 7 P. R. 297. [See, also, Richardson 
 V. Shaw, 6 P. R. 296 ; In re Burrmves, 18 C. P. 493 ; 
 Archibald v. Bushey, 7 P. R. 304 ; Re Smart and 
 O'Reilly, 7 P. R. 364 ; Re Friendly v. Needier, 10 
 P. R. S. C. 20 L. J. N. S. 232.] 
 
 Jurisdiction of Division Court— Contract.— Th.Q 
 plaintiff sued in the Division Court for $90 as th*^ 
 value of his horse employed by the defendant, the 
 
 4 u&. 
 
ADDITIONAL CASES AND POINTS ON D. C. LAW. 
 
 229 
 
 injury complained of being that the defendant 
 allowed the horse to be worked after he took sick, 
 by which his death was o(;casioned ; it was held 
 that this was an action for breach of (;ontract in 
 not taking proper care of the horse, and that the 
 Division Court had jurisdiction : O'Brien v. Irving, 
 7 P. R. 308. [See, Morris v. Camermi, 12 C. P. 422.J 
 
 Counter-claim— Action for Calls.— Where a com- 
 pany is being wound up a contributory cannot in 
 answer to an action by the liquidator for calls, 
 Counter-claim for damages against the company : 
 Govt. S. Invest. Co. v. Dempsey, .50 L. J. Q. B. 19t). 
 [See, In re Govt. S. F. Ins. Co., Mudfordi's Claim, 14 
 Ch. D. 634.] 
 
 Ejectment — Counter-claim. — In an action to re- 
 cover the possession of land for nonpayment of 
 rent, a Counter-claim in the absence of special 
 circumstances will not be allowed : Hildidge v. 
 OFarrell, 8 L. R. Irish, 158. 
 
 Striking Out Counter-claim.— A surety cannot as 
 a defendant set up by way of Counter-claim, that 
 the plaintiff must first resort to his remedies 
 against the principal debtor, before seeking to 
 recover from the surety : Federal Bank v. Harri- 
 son, 4 C. L. Times, 292. 
 
 W 
 
 1 
 

 230 
 
 STATUTES ON D. C. JURISDICTION. 
 
 li-i 
 
 
 If? 
 
 
 i\ 
 
 
 f ; 
 
 1 I ^ 
 
 .1 I ii 
 
 THE FOLLOWING STATUTES OR PARTS THEREOF 
 HAVE ALSO REFERENCE TO DIVISION COURT 
 JURISDICTION. 
 
 {See, also, Sinclair's D. O. Act, pages 350 and 351) 
 
 THE DITCHES AND WATER COURSES ACTS. 
 
 Rev. Stat. Ont., Chapter 199, ss. 4 to 12 inclusive. 
 
 41 Vict., Chapter 12. 
 
 46 Vict., Chapter 27, ss. 11 to 22. 
 
 47 Vict, Chapters 8 and 43. 
 
 THE MECHANICS' .EN ACTS. 
 
 Rev. Stat. Ont., Chapter 120, s. 12 and following 
 sections. 
 47 Vict., Chapter 18. 
 
 DISTRICTS OF ALGOMA, THUNDER BAY AND 
 
 NIPISSING. 
 
 42 Vict., Chapter 19, ss. 5-8 and following sections. 
 
 43 Vict., Chapter 12. 
 
 47 Vict., Chapters 3 and 14. 
 
 CREDITORS' RELIEF ACT. 
 
 43 Vict., Chapter 10, s. 7, subsection (23). 
 
 ADMINISTRATION OF JUSTICE IN THE COUNTY 
 
 OF DUFFERIN. 
 
 44 Vict., Chapter 9. 
 
STATUTES ON D. C. JURISDICTION. 
 
 231 
 
 DISTRICTS OF NIPISSING, PARRY SOUND AND 
 THUNDER BAY. 
 
 45 Vict., Chapter 7. 
 47 Vict., Chapter 3. 
 
 ABSCONDING DEBTOR 
 
 46 Vict., Chapter 6, s. 4 and following sections. 
 
 THE DISPUTED TERRITORY. 
 
 47 Vict., Chapter 2, s. 22 and following sections. 
 
 [ 'i 
 
\n 
 
 
 Inn, 
 
 I ■* f !■»;■■. 
 
 muy - 
 
 m 
 
 i»«i 
 
 II: 
 
 h. 
 
 it-r 
 >i 
 
 4> 
 
 11 
 
 !*»* *», 
 
 'in. 
 
 
 f i 
 
 
 
 232 
 
 APPENDIX OP FORMS. 
 
 ADDITIONAL FORMS OF DIVISION COURT 
 
 PROCEEDINGS. 
 
 [The general inaccuracy of affidavits of service 
 of summons in the case of absconding debtors, 
 their general insufficiency in point of law, and the 
 too common disregard by both Clerks and Bailiffs 
 of the importance of a proper observance of the 
 requirements of the Statute in regard to service 
 induces the writer to give tLe three following Forms. 
 When we consider that in other Courts a proper 
 regard for the procedure prescribed by Division 
 Court law, is in many cases, where proof of judg- 
 ments in such Courts becomes necessary, an essential 
 element of their validity : Farr v. Hobins, 12 C. P. 
 35 ; Jacamb v. Henry, 13 C. P. 377 ; Hope v. Graves, 
 14 C. P. 393 ; too much importance cannot be 
 attached to the necessity of a careful preparation 
 of the affidavit of service of summons on abscond" 
 ing debtors. Proceedings against an absconding 
 debtor are in the nature of proceedings in rern 
 against the property of the debtor, usually takan 
 in his absence and without his knowledge. In 
 such cases the law always has imposed on the 
 person taking such proceedings a closer observance 
 of its requirements than where a defendant in 
 an ordinary suit has knowledge of legal proceed- 
 ings, irregular though they may be, but which he 
 has taken no action to assail. The validity of 
 a judgment in the Division Court against an 
 
'■i: 
 
 APPENDIX OF FORMS. 
 
 233 
 
 abs(;ondins debtor who liaH not been personally 
 served with the summons depends upon its being 
 served in one of the modes prescribed by the 
 Statute. If such has not been done no valid 
 judgment could be entered, and upon the author- 
 ity of the cases cited above, the debtor's property 
 could not be affected to his prejudice by such 
 proceedings. It will therefore be seen how impor- 
 tant a factor a proper affidavit of service is in 
 such proceedings. 
 
 A (3onmion error in regard to these affidavits is 
 the omission to entitle them in Court or cause. 
 There is only one case where an affidavit need not 
 be so drawn in Division Court pioceedings, and 
 that is in the case of service of a special summons 
 when the affidavit is endorsed on the summons 
 (see, D. C. Forni, No. 107), unless the Judge accepts 
 the affidavit under Rule 133, which in proceed- 
 ings against an absconding debtor he should be 
 slow to do.l 
 
 AFFIDAVIT OF SERVICE OF SUMMONS ON AN 
 ABSCONDING DEBTOR BY LEAVING COPY, ETC. 
 WITH PERSON DWELLING AT HIS LAST PLACE 
 OF ABODE. 
 
 1. — (Court and Cause.) 
 
 I, A. B. of the of in the County of 
 
 Bailiff of the above mentioned Court (o?' as the case 
 may be), make oath and say : 
 
 1. That I did on the day of A. D. 188 , 
 
 serve {naming him), the above named defendant in 
 this cause with the within {or " annexed^^) summons. 
 
 »t 
 
 4- 
 
234 
 
 APPENDIX OF FORMS. 
 
 ISli 
 
 notices and warnings therein and the particulars 
 of claim therewith in this cause, by delivering a 
 true copy of each to and leaving them with {naming 
 the person), at the last place of abode in this Pro- 
 vince of the above named defendant, and that at 
 the time of such service the said {naming the person 
 to whom papers delivered), was dwelling at the 
 defendant's said last place of abode, and that I 
 necessarily travelled miles to make such 
 
 service. 
 
 Sworn, etc. 
 
 
 •>! 
 
 AFFIDAVIT OF SERVICE OF SUMMONS ON AN 
 ABSCONDING DEBTOR BY LEAVING COPY, ETC 
 AT LAST PLACE OF ABODE OR DWELLING OF 
 DEBTOR, NO PERSON BEING THERE FOUND. 
 
 2. — {Court and Cause) 
 
 I, A. B. of the of in the County of , 
 
 Bailiff of the above mentioned Court {or as the case 
 may be), make oath and say : 
 
 1. That I did on the day of A. D. 188 , 
 
 serve {naming him), the above named defendant in 
 this cause, with the within {or " annexed''^) summons, 
 notices and warnings therein, and the particulars 
 of claim therewith in this cause, by delivering a 
 true copy of each to and leaving them at the last 
 place of abode and dwelling of the defendant in 
 this Province, and at the time of so leaving them 
 there, no person could be there found, and that I 
 necessarily travelled miles to make such 
 
 service. 
 
 Sworn, etc. 
 
 
w: 
 
 APPENDIX OF FORMS. 
 
 235 
 
 AFFIDAVIT OF SERVICE OF SUMMONS ON AN AB- 
 SCONDING DEBTOR BY LEAVING COPY, ETC. AT 
 HIS LAST PLACE OF TRADE OR DEALING. 
 
 ii.— {Court and Cmise.) 
 
 I, A. B. of the of in the County of , 
 
 Bailiff of the above mentioned Court {or as the case 
 may he), make oath and say : 
 
 1. That I did on the day of A. D. 188 , 
 
 serve {naming him), the above named defendant in 
 this cause, with the within {or ''annexed''^) sum- 
 mons, notices and warnings therein, and the par- 
 ticulars of claim therewith in this cause, by deliver- 
 ing a true copy of each to and leaving them with 
 {naming the person), at the last place of trade and 
 dealing of the above named defendant in this 
 Province, and that at the time of such service the 
 said {naming the person served), was dwelling at the 
 defendant's said last place of trade and dealing, 
 and that I necessarily travelled miles to make 
 
 such service. 
 
 Sworn, etc. 
 
FORMS UNDER THE 
 
 DIVISION COURT ACT OF 1884. 
 
 I;- 
 I I' 
 
 
 1^(1 
 If 
 
 
 , 
 
 FORM OF AFFIDAVIT OF SERVICE OF GARNISHEE 
 SUMMONS BEFORE JUDGMENT ON THE AGENT 
 OF A BODY CORPORATE UNDER SECTION (2) OF 
 THE ACT OF 1884, 
 
 {,See ante, page 27 ] 
 
 {.Court and Caused 
 
 I, E. F. of, etc., Bailiff of the Division Court 
 of the County of {or of the above mentioned 
 
 Court), make oath and say : 
 
 1. That I did on the day of 188 , duly 
 serve one G. H. with a true copy of the within 
 {or annexed) summons, notices, memorandum and 
 warnings therein and thereon, and of the par- 
 ticulars of claim therewith in this cause, by 
 delivering the same personally to the said G. H. 
 
 2. That at the time of such service the said G. H. 
 was the agent of the above named garnishees at 
 {name of place), and that at the said time he as such 
 agent, had an office at {name of place), and that I 
 necessarily travelled miles to make such ser- 
 vice. 
 
 Sworn, etc. 
 
 [It is very doubtful if a garnishee summons 
 under the Division Courts Act, 1884, for a claim 
 not exceeding *8 (5ould lie served in the manner 
 
APPENDIX OF FORMS. 
 
 237 
 
 allowed by the latter part of the 72nd section of the 
 D. C. Act, or in any other manner than that 
 prescribed by this late Act. It would be very unsafe 
 to do so, and the writer strongly advises against 
 attempting the experiment.1 
 
 FORM OF AFFIDAVIT OF SERVICE OF GARNISHEE 
 SUMMONS AFTER JUDGMENT ON THE AGENT OF 
 A BODY CORPORATE UNDER SECTION 3, OF THE 
 ACT OF 1884. 
 
 [See ante, page 37.] 
 
 {Court and Cause.) 
 
 I, E. F. of, etc.. Bailiff of the Division Court 
 
 of the County of (or of the above mentioned 
 
 Court), make oath and say : 
 
 1. That I did on the day of 188 , duly 
 serve one G. H. with a true copy of the within (or 
 annexed) summons, notices, memorandum or warn- 
 ings therein and thereon, in this cause, by deliver- 
 ing the same personally to the said G. H. 
 
 2. That at the time of such service the said G. H. 
 was the agent of the above named garnishees at 
 {name of place), and that at the said time he as 
 such agent had an office at {name of place), that 
 such office was at the time of said service within 
 the division of the Division Court of the 
 County of , and that I necessarily travelled 
 
 miles to make such service. 
 Sworn, etc. 
 
 [If the office of the agent is not within the 
 division in which judgment was recovered, the 
 affidavit should shew particularly where it is, so 
 that the Judge might determine whether the office 
 *' is nearest thereto."] 
 
 II 
 
238 
 
 APPENDIX OP FOBMS. 
 
 til.;; 
 mo- 
 
 JPi 
 
 
 * 
 j 1 
 
 
 :: 
 
 CONSENT TO AN APPEAL UNDER 41 VICTORIA, 
 CHAPTER 10, SECTION 9. 
 
 [See (inte, page 4-9.] 
 {Court and Cause.) 
 
 We hereby consent that this cause may be 
 entered, heard and disposed of in the Court of 
 Appeal for Ontario, pursuant to the provisions of 
 47th Victoria, Chapter 10, sections 9 and 10, and the 
 Statutes therein referred to. 
 
 Dated, etc. 
 
 {Signed hy the parties., their counsel or solicitors.) 
 
 ORDER STAYING PROCEEDINGS ON APPEAL. 
 
 [See page 52, a?ite.] 
 In the Division Court of the County of 
 
 Between A. B., Plaintiff, 
 and 
 C. D., Defendant, 
 E. F., Claimant. 
 Upon the application of the above named plain- 
 tiff {or " the above claimant " as the case may be), I 
 hereby order that proceedings herein be stayed for 
 ten days from the day of , A. D. 188 , in order 
 
 to afford the said plaintiff {or " the above claimant " 
 as the ca^e rrmy he) time to give the security in this 
 cause to enable him to appeal, which security I 
 direct to be by a bond in the sum of $ or 
 
 the sum of $ paid into Court. 
 
 Dated this day of , A. D. 188 . 
 
 Judge. 
 [By the 18th section of the D. C. Act of 1880, 
 under which this order is granted, it is enacted 
 
APPENDIX OF FORMS. 
 
 230 
 
 that the Judge shall ntay the prodeediiiR-s for a time 
 ''not exceeding ten days." The Judge may for 
 good (5ause grant a stay of proceedings for a lesser 
 time only.] 
 
 APPEAL BOND WHERE THE CLAIMANT IN 
 INTERPLEADER ISSUE IS APPELLANT. 
 
 AN 
 
 [See ante, page ^4-] 
 
 Know all men by these presents, that we, E. F. of 
 &(!., and Gr. H. of <fcc., and J. K. of &c., are jointly 
 and severally held and firmly bound unto A. B. of 
 <fe(5., in the penal sum of dollars of lawful 
 
 money of Canada {donble the value of the goods or 
 chattels claimed or of the proceeds thereof, of the costs 
 in the Court below and the costs in appeal, or such 
 lesser sum as the Judge directs,) to be paid to the 
 said A. B., or his certain attorney, executors, 
 administrators or assigns. For which payment, 
 well and faithfully to be made, we bind ourselves, 
 and each and every of us in the whole, our 
 and ea(^h and every of our heirs, exe(5utors and 
 administrators, .jointly and severally, firmly by 
 these presents. 
 
 Sealed with our seals, and dated this day 
 
 of , in the year of our Lord one thousand 
 
 eight hundred and eighty 
 
 Whereas a certain interpleader issue is now 
 depending in the Division Court for the 
 
 County of , wherein the said issue did proceed 
 
 as if said E. F. the claimant of the goods seized 
 was the plaintiff, and the said A. B. the execution 
 
240 
 
 APPENDIX OP FORMS. 
 
 •nf'^s.,, 
 
 If •• 
 
 V - 
 
 4 
 
 creditor was the defendant ; and wliereaw the waid 
 interpleader issue (^ame on to be tried at the said 
 Court on the day of last past, when .judg- 
 
 ment was given for the said execution creditor, 
 and it was thereby adjudged that the goods (oi' the 
 goods, chattels and moneys, or the proceeds of the 
 goods, etc. as the case may be) mentioned in the 
 interpleader summons {or part thereof as the case 
 may be), were not the property of the said E. F. the 
 claimant {or as the case may be). I If judgment post- 
 poned under section 106 of the Division Courts 
 A(^t, it can be stated thus : " When judgment was 
 posti)oned until the day of last past, at 
 
 of the clock in the noon, at the office of the 
 
 Clerk of the said Court, at which time and place 
 judgment was given by the Judge of the said 
 Court, that the goods {or the goods, chattels and 
 moneys or proceeds of the goods, etc. as the case may 
 be), mentioned in the interpleader summons (w pa7't 
 thereof as the case may be), were not the property of 
 the said E. F. the claimant {or as the case may be). 
 
 And whereas the said E. F. being dissatisfied 
 with such judgment, duly applied for a new trial 
 in the said interpleader issue according to the 
 Statutes and Ru'es of Court in that behalf, which 
 application the said Judge in due course refused 
 {or as the case may be). 
 
 And whereas the said E. F. being dissatisfied 
 with the decision of the said Judge, on such appli- 
 cation for a new trial, is desirous of appealing to 
 the Court of Appeal for the Province of Ontario, 
 against such decision ; and in pursuance of the 
 
APPENDIX OF FORMS. 
 
 241 
 
 Statute ill tliat bt^lialf, thiis bond is vrivtni an 
 swMirity to enable the waid E. F. so to appeal ; and 
 whereas tlu^ above bounden (t. H. and J. K, at the 
 request of the said E. F. liave a«-reed to enter into 
 the above written obligation for the purjjoses 
 aforesaid. 
 
 Now, therefore, the (xnidition of this obligation 
 is such that if the above bounden E. F. shall abide 
 by the decision of the said interpleader issue by 
 the said Court of Api)eal and pay all sums of 
 money and costs as well of the said interpleader 
 issue as of the said appeal, awarded and taxed to 
 the said A. B., then this obligation shall be void, 
 otherwise the same shall remain in full force 
 virtue and effect. 
 
 Signed, sealed and delivered 
 by the above bounden E. F., 
 G. H. and J. K., in the pre- 
 sence of, 
 
 L. M. 
 
 E. F. [SKAL.] 
 
 (i. H. [seal. I 
 J. K. [seal.] 
 
 APPEAL BOND WHERE THE EXECUTION CREDITOR 
 IN INTERPLEADER ISSUE IS APPELLANT. 
 
 [See ante, page oJ^^, 
 
 Know all men by these presents, that we, A. B. 
 of, etc. and G. H. of, etc. and J. K. of, etc., are 
 jointly and severally held and firmly bound unto 
 E. F. of, etc., in the penal sum of >t^ , of lawful 
 
24'2 
 
 APPENDIX OF FORMS. 
 
 
 '».i. 
 
 <<!; 
 
 f1: 
 
 I')' 
 
 
 money of (Jaiiada (doMe the probable ammmt of the 
 claini(mt''s costs in the Cmirt below and' in appeal), to 
 be paid to the aaid E. F. or hi« (certain attorney, 
 executorn, adminiHtratorH or aHHignn. For whirh 
 payment well and faithfully to be made, we bind 
 ourselvey, and each and every of uh in the whole, 
 our and each and every of our heirw, exettutorw and 
 administrators, jointly and severally firndy by 
 these presents. 
 
 Sealed with our seals and dated this day of 
 
 , in the year of our Lord one thousand eight 
 hundred and eighty- 
 
 Whereas, a certain interpleader issue is now 
 depending in the Division Court for the 
 
 County of , wherein the said issue did pro- 
 
 ceed, as if the said E. F. the claimant of the goods 
 seized was the ])laintiif, and the said A. B. the 
 execution creditor was the defendant ; and whereas 
 the said interpleader issue came on to be tried in 
 the said Court on the day of last past, 
 
 when judgment was given for the said claimant, . 
 and it was thereby adjudged that the goods {o7' the 
 goods, chattels and moneys cvr proceeds of the goods, 
 etc. as the case may be), mentioned in the inter- 
 pleader summons {or part thereof as the case may be), 
 were the property of the said E. F. the claimant 
 {or as the case may be). [If judgment postponed 
 under section 106 of the Division Courts Act, it can 
 be stated thus : " Wlien judgment was postponed 
 until the day of last past, at of the 
 
 clock in the noon, at the office of the Clerk of 
 
APPENDIX OF FORMS. 
 
 •243 
 
 i\w HiiUl Court, at which time and phu-e jnd^^iueiit 
 wan Kiveii by the JudKe of the Haid Court, that the 
 KOctdH {or the goods, chattels and moneys or proceeds of 
 the iioods, etc. as the case may he), iiieutioiKid in tlie 
 interpleader wummonH (w part thereof as tJie case 
 may be), were the property of tlie naid K. F. the 
 claimant '' {or as the case may he). \ 
 
 And whereaH the said A. H. being- dinnatinfied 
 with such judgment, duly applied for a new trial 
 in the said interpleader iwaue, aticording to the 
 Statutes and Rules of Court in that behalf, which 
 application the said Judgre in due course refused 
 (w as the case may he). 
 
 And whereas the said A. B. being dissatisfied 
 with the decision of the said Judge, on such appli- 
 cation for a new trial, is desirous of appealing to 
 the Court of Appeal for the Province of Ontario, 
 against su(5h decision ; and in pursuance of the 
 Statutes in that behalf, this bond is given as 
 sec;urity to enable the said A. B. so to appeal : and 
 whereas the above bounden G. H. and J. K. at the 
 request of the said A. B. have agreed to enter into 
 the above written obligation for the purposes afore- 
 said. 
 
 Now, therefore, the condition of this obligation 
 is such, that if the above bounden A. B. shall abide 
 by the decision of the said interpleader issue by 
 the said Court of Appeal, and pay all sums of 
 money and costs as well of the said interpleader 
 issue as of the said appeal awarded and taxed to 
 
244 
 
 APPENDIX OF FORMS. 
 
 3.' 
 
 
 i 
 
 tlie said E. F., then this oblij>atioii shall be void, 
 otherwise the same sliall remain in full force, 
 virtue and effe(^t. 
 
 Signed, sealed and delivered \ a. B. [seal.] 
 
 by the above bounden A. B. I 
 G. H. and J. K.. in the pre- ^^- H. [seal.J 
 
 sencti of, I 
 
 L. M. / 
 
 J. F [seal.] 
 
 AFFIDAVIT OF JUSTIFICATION BY SURETIES TO 
 
 APPEAL BOND. 
 
 (Court and Cause.) 
 I, G. H., of, etc., one of the sureties for A. B. 
 {or E. F. as the case may he) in the annexed appeal 
 bond, make oath and say : 
 
 That I am a householder and housekeeper (w 
 freeholder, as the case may he), residing at {give 
 particidar description of the place of residence). That 
 I am worth property to the amount of dollars. 
 
 (" th^ amount of the penalty of the hond'' Rev. Stat. 
 Cap. 43, sfiction o8) over and above what will pay 
 all my .just debi-^. {Tf hail or security in any other 
 action add, "and every othc^r sum for which 1 am 
 now bail or security.") 
 
 That I am not bail or security for any plaintiff 
 or defendant, except in this action {or if hail or 
 security in any other action or actions add,) except 
 for A. S. at the suit of D. K., in the Court of 
 in the sum of 5f^ ; for B. M. at the suit of S. T., 
 
 in tae ( 'ourt of in the sum of % {Specify- 
 
 itig the several actions irith the Courts in irhich they 
 
 ft 
 
APPENDIX OP FORMS. 
 
 245 
 
 
 are hi'ouuht, and tJie mm. in which the dsporunt is hail 
 (yr secui'ity). 
 
 Sworn, et('. 
 
 [See County Court Rule 84, and Har. C. L. P. Act 
 page H64, and the form of affidavit of justification 
 of bail there given. The filfidavit of the other 
 surety will be the same excei)ting the name, etc., as 
 the foregoing form. J 
 
 AFFIDAVIT OF EXECUTION OF APPEAL BOND. 
 {Court and Oaime.) 
 
 I, L. M., of, etc., make oath and say : 
 
 1. That I was »)ersonally present and did see the 
 annexed appea bond duly signed, sealed and 
 executed by A. B. (or E. F.), G. H. and J. K., the 
 obligees therein mentio i^;.i. 
 
 2. That I am personally acquainted with the said 
 parties. 
 
 3. That I am a subscribing witness to the execu- 
 tion of the said appeal bond by all of the said 
 parties ; and that the signatu^o '' L. M." affixed 
 thereto in attestation of suc^.i execution is in my 
 own propt-r hand-writing ; and that such bond was 
 so executed at, etc. 
 
 Swoni, etc. 
 
 [Notice of application for the approval of the 
 bond should be given to the opposite party, as 
 pointed out at page 50 of Sinclair's D. C. Act, 1880, 
 and it should be seen that the bond is duly approved 
 of by the Judge, and other necessary proceedings 
 taken as pointed out in the work just referred to 
 at page 51 and following pages.J 
 
ii '" '*'" 
 
 '. ' '■' 
 
 P ' «:; 
 
 
 
 
 I 
 
 
 IJJ; 
 
 
 -».t 
 
 
 ; "HI 
 
 . 
 
 ■'jr* 
 
 
 1 
 
 
 Ai\ 
 
 
 "■ 1 
 
 •■ 1 
 
 
 
 
 I <- 
 
I 
 
 •I 
 
 
 r.:- 
 
 
 
 n* 
 
 
 
 > 1«t, 
 
 
 
 V" 
 
 
 
 •U?'. 
 
 
 
 :■..,. 
 
 
 
 ■•l/rj. 
 
 
 
 
 IP' 
 
 Nl 
 
 
 
 3 ■ 
 
 If. 
 
INDEX. 
 
 Adandonment of Excess — 
 
 must be made on summons, 97 
 
 should shew to wliich demand apphed, U7 
 claim for $10C particuhirs, ^125 sufficient, 121 
 
 Absoondinc* Debtor— 
 
 debt must be due by, before pioceedinns taken, 226 
 
 act affecting I' .vision Courts as to, 231 
 
 remarks or general insufficiency of attidavit of service of 
 
 summons on, 232 
 prooeediDj^s against are in rem, 232 
 
 property of, not ati'ected unless service properly made, 233 
 affidavit of service on. should be entitled in Court and cause, 233 
 form of affidavit (1) by leaving with person at last place of 
 
 abode. 233 
 
 (2) leaving at place o' abode, 234 
 
 (3) leaving at place of business, 235 
 
 Adding Defendants — 
 
 no power for, in Division Courts, IdO 
 
 witness admitting he was real debtor .substituted as defendant, 
 115 
 
 AU.MINISXHAT0R — 
 
 whether garnisliable, 153 
 
 AdENT- 
 
 of foreign corporation : — 
 who is, 27, 2H, 39 
 
 one whose office is nearest to where cause of action arose, 28 
 must have office as such, 28 
 nearness of oilice to be ascertained as the crow flies, 28, 29 
 
250 
 
 1NJ)EX. 
 
 1 
 
 
 1 
 
 U: 1, 
 
 
 
 
 I'/- 
 
 
 ■*•. 
 
 ■ 
 
 ir«i 
 
 
 »... 
 
 : 
 
 Nl/i 
 
 
 ,'4| • 1 
 
 AiiEUT' Clint in iird. 
 
 female may be, 3!) 
 
 alien may be, 3!( 
 
 lunatic — quare, 3!( 
 
 corporation — quare 41, 42 
 
 appointment of — (1) by will of principal ; (2) by eHtoppel, '6'J, 40 
 
 burden of proof on person seeking to charge principal, 40 
 
 presumed to continue such if once shewn to be, 40 
 
 Amendment — 
 
 of dates and recitals in warrant of commitment, WS 
 by substituting witness for defendant, 115 
 
 Annuity — 
 
 Appeal — 
 
 
 ''M 
 
 Iplf 
 
 when attachable, 137, 142 
 
 now permitted in certain Interpleader matters, 44, 45, 40, 47 
 not generally allowed on mere question of costs, 47 
 
 unless some principle involved, 48 
 a matter of statutory creation, 50 
 now given in all actions in which parties consent, 44 
 
 construction of this provision, 49, 50, 51, 70 
 
 consent to not required to be in writing, 51 
 
 solicitors or agents may give such consent 52 
 
 form of consent, 238 
 practice on, in Interpleader cases, 62 
 is from decision of Judge on motion for new trial, 44, 52 
 
 should be only on grounds taken on such motion, 52, 71, 72 
 provisions of act of 1880 as to, 53, 54, 65, 56 
 stay of proceedings pending, security, setting down, costs, Ac, 
 
 evidence to be taken down in all cases, the subject of, 70 
 
 iind other provisions of act of 1830 observed, 58, 70 
 Judge cannot delegate riglit to allow bond on, 72 
 j',ifi(jment on question of fact not reversed on unless clearly wrong, 
 
 72 
 delay induced by opposite party, no excuse if time for expired, 73 
 Judge cannot extend time for, 72 
 
 oor alter his decision after certifying proceedings, 73 
 
 unless referred to bin. 'or that purpose, 73 
 in notice of, all grounds slioulil l>e taken, 73 
 
INDRX. 
 
 251 
 
 10 
 
 . 72 
 
 *c., 
 
 )ng, 
 ,73 
 
 Appeal — Continued. 
 
 no costs of if jud^;ment varied on matter of discretion, 73 
 if judgment unreversed on, conclusive in all other Courts, 73 
 to Division Court in M iter and Servant cases, 1»4 
 prohibition not granted pending, 113 
 not formerly permitted in garnishee proceedings, 131 
 
 and none now in Division Courts, 141 
 .Tudjie's notes may be dispensed with on, 220 
 parties may waive limit of time for, 220 
 effect of death of respondent pending, 220 
 costs of, 221 
 
 Judges of Court of, may frame rules for, 222 
 " sum in dispute," meaning of, 224 
 forms on — order staying proceedings, 238 
 
 bond in Interpleader, claimant appellant, 239 
 do. creditor appellant, 241 
 
 affidavit of justification, 244 
 affidavit of execution, 245 
 
 AnniTBATORS — 
 
 no fees recoverable by till after taxation, 101 
 award of several must be executed by each in presence of others, 
 101 
 Abskbsment — 
 
 on Mutual Fire Policy, 
 
 ii over 9100 not recoverable in Division Court, 101 
 illegality of part of, vitiates whole, 124 
 
 AflSIONMENT OF DeBT — 
 
 defeats right of garnishment, 12(), 155 
 not complete in U. H. till notice to debtor, 175 
 our law otherwise, 176 
 AninoRiTY — 
 
 c inferred on persons should be exercised, (IS 
 
 may amount to a duty, (i6. (58 
 
 often construed as command, (50, (57 
 
 placed with depositary to meet demands of justice, (!8 
 
 Award — 
 
 must be executed by each arbitrator in presence of others, 101 
 no appeal from decision of Division Court Judge refusing to sit 
 iiside, 217 
 
'2r)'2 
 
 INDEX. 
 
 .i) ■ 
 
 
 lU 
 
 
 111 ■ 
 
 
 
 i 
 
 M't' 
 
 
 
 
 
 
 BAIIiRE — 
 
 Baimfk- 
 
 B 
 
 liable for broach of duty on contract, not in tort, 228 
 
 leave of absence may be granted to 75, 80, 81 
 
 for period not exceeding two months, 75 
 
 may appoint deputy with approval of Inspector, 80, 81 
 
 sureties of, responsible for acts of deputy, 80 
 
 deputy has all powers and privileges of, 80, 81 
 
 whether Judge could remove deputy of, 81 
 
 whether sureties of would be liable on covenant executed before 
 
 passing of Act, 81 
 not bound to act on execution till fees paid, 88 
 liability of for false return, 106 
 jury to inquire if plaintiff damaged by act of, 107 
 liable for breach of duty without proof of actual damage, 107 
 summary proceedings against no bur to action, 107 
 claim of book debts from, not suliject of Interpleader, 124 
 
 III!; 
 
 
 Board — 
 
 debt for, no exemption of wages from garnishment, 1 
 
 must be a legal debt, 5 
 
 meaning of, (i 
 
 implied contract to pay for, 7 
 
 furnished to prostitute, recovery for allowed, 11 
 
 BOARDEBS- 
 
 effects of, exempt from distress for rent, (J 
 
 BoAnniNG-HousE Keeper — 
 
 lien of on goods of boarder, 5 
 entitled to all remedies, 5 
 sale of boarders effects by, 
 
 BoNns — 
 
 to Her Majesty by Division Court OfKcers released, 123 
 Appeal Bonds, — See Appeal, , 
 
 Book Debts — 
 
 not exigible, 124 
 
INDEX. 
 
 258 
 
 ted before 
 
 e, 107 
 124 
 
 c 
 
 Causk 01' Action — 
 
 where it arises, 25. '2(>, 27 
 
 in case illegal expulsion from train arises at place of expulsion, 88 
 
 for Solicitor's costs on loan arises where application signed, 90 
 
 for money had and received, 98 
 
 on dishonored cheque arises partly where issued and partly 
 
 where dishonored, 122 
 on instructions by letter to Solicitor arises partly where letter 
 
 written and partly where work done, 122 
 
 Certiorabi— 
 
 lies unless expressly taken away by Statute, 50 
 
 not allowed for removal of Interpleader proceedings, 60 
 
 Chattel Mortgage — 
 
 want of formaUties to, does not vary rights of parties, 112 
 act does not apply to eases of joint ownership, 123 
 
 Cheque — 
 
 operates as payment to Clerk though Bankers fail, 106 
 cause of action on arises partly where issued anH. partly where 
 dishonored, 122 
 
 Clerk of Division Court — 
 
 leave of absence to, may be granted by Inspector, 75 
 
 for period not exceeding two months, 75 
 may appoint Deputy with approval of Inspector, 7') 
 
 and may remove him at his pleasure, 7t) 
 Deputy has same powers as, 78 
 sureties of responsible for acts of such Deputy, 76, 81 
 leave to runs from posting of Inspector's letter, 77 
 
 but day of posting excluded in computation of time, 77 
 cannot have more than one Deputy at a time, 77 
 power of to appoint Deputy with Judge's approval not interfered 
 
 with, 78. 
 how Deputy should sign proceedings, 78 
 distinction between acts done by Deputy and agent of, 7!) 
 
ff ■ *•'' 
 
 .*•■■ i' I !!■« 
 
 III 
 
 HI 
 
 2.54 
 
 INDKX. 
 
 .i 
 
 CiiHRK nr Division Cininr—Confimied. 
 
 whether sureties of liable for Deptity'H acts if covenant executed 
 
 before passing of Act, 81 
 garnishment of money in hands of, 8ft, 16S 
 should preserve securities and annex copy merely to summons 
 
 and copies, !H 
 accepting cheque on private bankers and giving receipts for 
 
 moneys liable though bankers fail, 106 
 not entitled to production of securities sued on before signing 
 
 judgment, 119 
 
 CliBRK OF THE PbACE — 
 
 fees of not garnishable, 133 
 
 Committal for Non-Payment — 
 
 second order for irregular while first unexecuted, 219 
 
 ordered but once in England, unless debt payable in instalments, 
 
 219 
 in Ontario may be ordered for every new fraud or default, 219 
 
 Consent to Appeaij — 
 
 appeal permitted if parties give 44, 49, 50, 51, 70 
 form of, 238 
 
 See Appeal. 
 
 CONTEMtT — 
 
 Of Division Court : — 
 
 Committal for, not allowed unless in face of Court, 218 
 
 Corporation — 
 
 definition and origin of, 34, 36 
 rights of, 35 
 Foreign — Garnishment of before Judgment : — 
 
 service of summons on, how effected, 17, 28, 29 
 formerly not hable to garnishment, 19, 21, 188 
 could sue in our courts, 20, 21 
 whether act allowing garnishment effective, 21, 22 
 chief place of busines of must be out of Ontario, 22 
 
 definition of chief place of business, 22, 23 
 summons against to be issued from division where cause of 
 action arose, 24 
 
 If 
 
INDEX. 
 
 
 ConvoRXiion— Continued, 
 
 ciuiBe of action ineaiiH whole cauHe of action, 2'> 
 effect where arose in variouH diviHions, 2') 
 or partly out of Province, 2<) 
 means that against debtor not garnishee, 2(5 
 service of summons to be made in same way as ordinary 
 garnishee summons, 27 
 by serving agent whose oHice as such is nearest to where 
 
 cause of action arose, 28 
 nearness to be ascertained as the crow flies, 28, 20 
 form of affidavit of service, 2i<() 
 Foreign garnishment after judgment :— 
 
 summons to be issued from Court where judgment recovered, Hii 
 and to be served (jn agent of within Division or nearest 
 thereto, H.H 
 chief place of business of in such proceedings must be out of 
 
 Province, 36 
 judgment is " recovered " on entry in Procedure Book, !>7 
 only Court where judgment actually recovered has jurisdiction, 37 
 
 not Court to which transcript issued, 37 
 no provision for serving agent who has not office &". such, 37 
 how nearness of olfice ascertained, 37, 38 
 who is agent of, 3l>, 40 
 
 form of affidavit of service on, before judgment. 236 
 do. do. after judgment, 237 
 
 C!qbts 
 
 Judges cannot tax Clerk any greater than mentioned in 
 
 tariff, 86, 87 
 right to, entirely statutory, 87 
 
 no jurisdiction to order payment of, to claimants of book debts 
 from Bailiff, 124 
 On Counter-claim , - 
 
 principle of allowance of, where both claims dismissed, 210, 213 
 
 where both successful. 211, 212, 213. 
 where there has been a reference, and both parties succeed, 
 
 213, 214 
 where Counter-claim really amounts to defence, 214, 215 
 defendant admitting claim and setting up Counter-claim, not 
 
 entitled to security for, 215 
 Judicature Act repeals all former rules as to, 215 
 

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256 
 
 INDEX. 
 
 !95JI 
 
 
 j'H :i 
 
 I..... 
 
 ^' fil 
 
 , I 
 
 CoBXB— Continued. 
 
 may be allowed though Court baa no jurisdiction, 222, 223 
 payment of counsel fee may be ordered as condition of post- 
 ponement of trial, 223. 
 s.sale of, when action in High Court or County .Court within 
 jurisdiction of Division Court, 225 
 power of taxing officer in such cases. 225 
 
 CouN3Ki. Vekb — 
 
 in Division Court, 91 
 
 payment of, may be ordered as condition of postponement of 
 trial. 223 
 
 Counteb-Claiu — 
 
 defendant has right to, in Division Court, 95 
 
 points applicable to subjects in all Courts noticed, 179 
 
 provisions of Judicature Act applicable to Division Courts, 179 
 
 180, 181 
 nature and eD'ect of, 182 
 
 set-off of damages before Judicature Act very limited, 182 
 right of, first introduced into jurisprudence of United States, 183 
 legal character of, two suits combined in one action, 183. 184 
 not confined to claims of same nature as original action, 185 
 extends to causes of action arising after issue of writ, 186, 187, 
 
 196 
 must claim relief against plaintiff, who must be party to it, 187, 
 
 191, 202, 203, 225, 229 
 defendant by, must not be liable merely in one of two inconsist- 
 ent alternatives, 187, 192, 203 
 may be set up against one of two joint plaintiffs, 187 
 need not equal plaintiff's claim, 187 
 must be consistent with equity, 187 
 must contain specific statement of facts entitling relief, 187 
 
 either separately or by reference to defence, 188, 194 
 arising after action must be pleaded as such, 188 
 defendant cannot obtain judgment on, till plaintiff's claim 
 
 tried, 188, 195. 
 not favoured unless required to protect legal rights of defend- 
 ant, 189 
 object of, to prevent multiplicity of suits, 189 
 
INDEX. 
 
 257 
 
 CncNTER-CLAiu — Continued. 
 
 plaintiff cannot prevent enforcement of, by discontinuing, 189 
 
 effect given to equitable rights, though not set up by way of, 190 
 to what cases applicable : — 
 
 tenant against landlord for breach of implied covenant, 191 
 
 setting up, optional with defendant, 191 
 
 breach of covenant in building contract, 191 
 
 whether reply must deal specifically with Counter-claim, 192, 
 200 
 
 purchaser from mortgagee made party to an action by second 
 mortgagee for account, 192 
 
 must shew right of relief against parties to, 198 
 
 Heeking indemnity, must be 'confined to )iroperty subject of 
 action, 19H 
 
 in action against married woman to charge separate estate, 
 husband, defendant, allowed to Counter-claim for chat- 
 tels owned by him, 193 
 
 Judge has discretion to exclude, 198, 199, 200, 226, 229 
 or separate trials may be ordered, 200 
 
 claims must not be set up against plaintiff in different rights, 194 
 transferring action to Chancery Division to try equitable 
 
 Counter-claim, 194 
 8et up by co-owners with plaintiff of vessel against claim by him 
 
 as Master, 194 
 not allowed against claim for pension, 194 
 not allowed where action pending for subject of, 195 
 
 issues on claim and Counter-claim identical, right to adduce 
 evidence in reply, 195 
 
 examination of one defendant by Counter-claim by another 
 defendant by Counter-claim not allowed, 195 
 
 rules as to joinder of causes of action apply to, 196 
 rept'esentatives of deceased defendant must revive, 196 
 party brought in by, not allowed to appear gratis, 196 
 
 payment into court of admitted claim not ordered where Counter- 
 claim pleaded, 197 
 in action on mortgage, defendant may Counter-claim to set it 
 
 aside, 197 
 
 moving for judgment where pleaded, 197 
 
rs 
 
 INDEX. 
 
 {if. 
 
 III) < 
 
 'i 
 
 ^M 
 
 ¥■ 
 
 «• 
 
 l|;ni"S 
 
 V ,1- 
 
 CoumxkB'Claiu— Contintud. 
 
 action to recover land, Counter-claim for illegal distress good, 107 
 
 do. do. for dower good, 198 
 
 action for wages, Counter-claim for leaving employment good, 197 
 for short delivery in action fo*- price of other cargoes good, 198 
 allowed to stand as notice to third party, 8, 198 
 not allowed against assignee of fire policy for debt of insured, 199 
 as to striking out as improper, 199, 229 
 new title to be added if third party brought in, 201 
 third party to appear in 8 days, 202 
 may reply to claim, 202 
 motion to strike out, when to be made, 202 
 if established, judgment to be given for balance, 202 
 no objection that third party could not have been party to 
 
 plaintiff's claim, 203 
 if relief sought does not extend to plaintiff, notice under rule 
 
 107 proper course, 203 
 contest between co-defendants not subject of, 208, 229 
 against pro. note for part paid to innocent holder, 226 
 contributory to company cannot set up claim, (see Third Party) 
 
 for damages against, 229 
 not allowed generally in action of ejectment, 229 
 Coits on. — See Costs. 
 
 COONTY COOBT — 
 
 may investigate claims under third party rules to any amount, 206 
 
 County Codbt Judomemt — 
 
 action on may be brought in Division Court, 104, 224 
 
 COVENAMT — 
 
 of Clerk and Bailiff effect of, 123 
 Griditorb Bblibf Act — 
 
 reference to as affecting Division Courts, 230 
 Cbowm — 
 
 cannot be primary creditor in garnishment proceedings, 26 
 nor be garnishee, 26 
 
]• 
 
 INDEX. 
 
 259 
 
 1) 
 
 Damages— 
 
 cannot be garnished if unliquidated till judgment entered, 177 
 
 Defendant— 
 
 witness admitting he is real debtor may be substituted as, 115 
 
 Deputy Clerk — 
 
 see Clerk of Division Court, 75 
 
 Deputy Bailiff — 
 
 see Bailiff, 80, 81 
 
 Deputy Judoe — 
 
 Crown need not prove appointment of, on indictment for perjury 
 committed before, 95 
 
 Judge need not be absent from county to authorize appointment 
 of, 96 
 
 has full powers of Judge until purpose of appointment per- 
 formed, 105 
 
 may exercise such powers anywhere in county, 105 
 
 Discretion— 
 
 parties entrusted with, to exercise in reasonable manner, 12 
 
 Disputino Jurisdiction — 
 
 omission to give notice of, no bar to prohibition, 110, 132 
 notice of, not necessary where suit beyond competence of any 
 Division Court, 117 • 
 
 Ditches and Water Oourseb Acts— 
 
 award under, not to direct water to be taken from land of one 
 
 party and left on that of another, 121, 125 
 contents of, valid award under, 125 
 Judge has no power to amend award on appeal, 125 
 reference to, as affecting Division Courts, 230. 
 
 DoFFERiN, County of— 
 
 Act respecting administration of justice in, 280 
 
!i 
 
 illi 
 
 2m 
 
 INDEX. 
 
 E 
 
 EyuiTABLK Debt— 
 
 may l)e garnialied, 131 
 
 RQUiTAHiiK Execution — 
 
 appointment of receiver by way of, 7 * 
 
 Ehtoppel — 
 
 by examination as judgment debtor, 100 
 
 representation to amount to an, must be acted on to prejudice 
 of party, 170 
 
 EXECUTOB — 
 
 garnishment of funds in bands of, 137, 138, 163 
 
 Exemption — from seizdbe — 
 
 partnersliip effects not exempt on execution against one partner, 
 100 
 
 Family - 
 
 exemption of debtor's wages from garnishment not allowed if not 
 
 necessary for support of, 1, 2 
 exemption allowed for protection of, 3 
 
 (inestion of necessity of exemption for, to be decided by Judge, 11 
 exemption to be " actually necessary " for support of, 13 
 how necessity to be ascertained, 14, 16 
 may include others than wife and children, 10 
 
 Forms- 
 
 F 
 
 affidavit of service on absconding debtor : — 
 
 (1) by leaving with person at last place of abode, 238 
 
 (2) by leaving at last place of abode unoccupied. 234 
 
 (3) by leaving at last place of business, 236 
 affidavit of service of garnishee summons on agent of foreign 
 
 corporation : — 
 
INDEX. 
 
 261 
 
 FoiuMS — Continued. 
 
 « 
 
 Frav d — 
 
 (1) before judgment, 230 
 
 (2) after judgment, 287 
 consent to appeal, 238 
 
 order staying proceedings on appeal, 288 
 Appeal Bond— claimant in Interpleader appellant, 239 
 do. creditor do. do. 241 
 
 affidavit of jnstification, 244 
 execution, 246 
 
 defer iant entitled to recover damages for, without offering to 
 return goods received, 227 
 
 G 
 
 >t 
 
 Gabnishee— 
 
 must reside within jurisdiction, IBS 
 
 Gabnibhment— 
 
 exemption of wages, 1 
 
 difference between our Act and English Act as to exemption from 
 discussed, 3, 142 
 of foreign corporations : 
 
 where summons to be issued and how served, 17, 24, 25 
 
 facts necessary to establish jurisdiction against, 20 
 
 corporation must be liable to suit in our courts, 20 
 
 crown cannot be primary creditor in, 26 
 
 meaning of place where cause of action arose, 26, 26, 27 
 
 of moneys in hands of Clerks of Division Coiuts, 88 134, 153 
 
 allowed in Division Court where amount in Garnishee's hands, 
 
 860O.0O, 117, 131 
 if unsuccessful court must have jurisdiction against primary 
 
 debtor, 122, 133 
 assignment prior to defeats right of, 126, 166 
 aiiidavit for attaching order formerly required of creditor or hie 
 
 attorney, 126, 137 
 
 li 
 
M' 
 
 V\ 
 
 26-J 
 
 INDEX. 
 
 QAnmBBMKVT—t'otitinued. 
 
 hH 
 
 t 
 
 r 
 
 I'll:! 
 I 
 
 lllul 
 
 bit! 
 
 *: 
 
 h 
 
 Itiil' 
 
 
 
 
 
 S , f'M 
 
 ; 
 
 1 » !i)]i 
 
 
 
 '% 
 
 
 f 
 
 2: 
 
 
 I" 
 
 .■ 
 
 
 
 I 
 
 stop order against funds in court, 126, 137 
 
 where money paid into court sought to be garnished, relief 
 
 refused to garnishee, 127 
 debt due under award and decree of court subject to, 128 
 i^Bue between rival olaimanta not formerly directed, 128 
 
 provisions of Judicature Act for this purpose, 128 
 not formerly allowed by Courts of Equity, 128, 129 
 equitable defence by garnishee — Interpleader, 129 
 after assignment iu Insolvency, debt due Insolvent not garnish- 
 
 able, 130, 144 
 formerly no appeal in garnishee proceedings in C. C, 181 
 
 remedied by 46 Vic, C. 6 (0), 131 
 equitable debt subject to, 131 
 promissory note not subject to, 132, 138 
 fees of Clerk of Peace not subject to, 138 
 of future accruing interest on trust money, 134, 142 
 does not make garnishee debtor of creditor till order to pay 
 
 made, 134 
 allowance to juror not subject to, 135 
 allowed for costs ordered to be paid, 135, 136, 144, 146 
 validity of judgment not arguable on motion for, 135, 172 
 of annuity when allowed, 137, 142 
 against trustees of bankrupt's estate, 137 
 of moneys in hands of executor, 187, 138 
 of government stock, 138 
 decision of judge on summary proceedings by consent between 
 
 rival claimants, final, 189 
 lien of solicitor takes precedence of order on, 139, 140 
 no charge effected on debt until order served, 140 
 payment under, discharges debtor, 141 
 no appeal from order on, in Division Courts, 14 
 not allowed in violation of restraint of anticipation by married 
 
 woman, 142. 
 of surplus on mortgage sale — not allowed till sale made, 143 
 debt must be absolute, not merely conditional, 144, 156 
 order on not a final judgment within Bankruptcy Act, 146 
 creditor having order on, entitled to be joined aa co-plaintiff 
 
 with debtor to enforce claim against garnishee, 147 
 
INDEX. 
 
 263 
 
 Gabmibhmemt— Continued. 
 
 but not to have oonduot cf action, 147 
 of trust money, ee»tui que triut may come forward and be 
 heard, 147 
 
 American cases on : — 
 
 a statutory proceeding entirely, 148 
 
 rests wholly on judicial process, 14U 
 
 a proceeding in rem, IM 
 
 effect of, to restrain payment by garnishee to debtor, 149 
 
 creates no lien on property of garnishee, 149 
 
 delivery by garnishee to debtor prior to, defeats proceeding, 160 
 
 must be property of debtor absolutely, 150, 162 
 
 orders have priority in order of service, 150 
 
 garnishee acquires only rights of debtor, 150, 155, 160 
 
 except where garnishee holds under fraudulent transfer, 160 
 
 161 
 no judgment against garnishee until final judgment against 
 
 debtor, 160 
 third parties claiming debt may intervene in most States, 161 
 plaintiff must prove case against garnishee, 161, 166, 156 
 possession of money and liability to pay ex contractu must be 
 
 proved, 161, 166 
 garnishee must be a third person, 151 
 attorney having debt for collection cannot be garnished, 162 
 if defendant merely trustee of moneys they cannot be garnished, 
 
 162 
 trustee may be garnished for debt of ecDtui que trust 
 
 who could revoke trust, 162 
 moneys deposited in bank by agent not garnishable for his debt, 
 
 162 
 if money in agent's own name, and principal does not assert 
 
 right to it, garnishees not liable to him after payment 
 
 to plaintiff, 153 
 officers of the law not subject to garnishment, 16H 
 
 except attomeys-at-law, 154. 
 municipal corporations not generally subject to, 154 
 
 government not subject to, 164 
 
 assignment defeats right to, 165 
 
 unless fraudulent, 155, 161. 
 
 i:; 
 
2M 
 
 INDEX. 
 
 Garnishment — Continued. 
 
 ?.' 
 
 = sf« 
 
 m 
 
 *s^ 
 
 ')''■■'■ . ' 
 
 
 r^. i 
 
 
 ■'Ml 
 
 lien of garnishee, if any, must first be satisfied, 156, 167 
 no recovery of debt based on illegal consideration, 165 
 debt must be due in money or not subject to, 166 
 debt must be absolute, not merely contingent, 166. 
 exact amount due by garnishee must be proved, 156, 
 any one of two or more joint and several debtors may be gar- 
 nished, 166 
 but not where debt a mere partnership one, 157 
 partners' names must be set out in process, 167 
 if several primary debtors each liable for whole debt, and debt 
 
 ' due one may be garnished, 157 
 but joint debt cannot be garnished to pay several debt of one, 
 158 
 
 unnegotiable promissory notes liable to garnishment, 158 
 
 otherwise, as to negotiable notes during currency, 159, 160 
 
 debt payable in foreign country garnishable, 161 
 
 fraudi:ilent attempt to defeat garnishment not allowed, 161, 162 
 
 assignment after garnishment does not defeat it, 16B 
 
 garnishee not chargeable with costs, 168 
 
 unless he contests his indebtedness unsuccessfully, 163 
 
 judgment only made against garnishee for amount due attaching 
 creditor, 163 
 
 garnishee may set up all defences available against pr<*nary 
 debtor, 163, 167 
 
 voluntary payment by garnishee after garnishment and with 
 
 knowledge of it does not prevent his being charged, 164 
 
 payment made after garnishment at peril of garnishee, 164 
 
 payment must be a p:;yment in fact, not mere contrivance to 
 
 preve::! garnishment, 164 
 if garnishee one of two joint debtors payment by co-debtor 
 
 discharges him, 165 
 payment under prior order discharges garnishee, 165 
 payment into court protects garnishee, 166 
 unauthorized payment to creditor of primary debtor other than 
 
 attaching creditor will not discharge garnishee though 
 
 ratified after attachment, 166 
 garnishee may avail himself of Statute of Limitations, 166 
 or set up failure of consideration, 166 
 
('■ Til 
 
 INDEX. 
 
 266 
 
 Gabnishmbnt — Continued. 
 
 dischftrRfl of garniBhee by primary debtor prevents garniRh- 
 
 raent, 167 
 garnishee may set up equitable defences. 167 
 garnishee oannot retain moneys to meet contingent liability for 
 
 debtor, 168 
 attorney allowed to retain fees earned at date of garnishment, 168 
 garnishee cannot escape liability by shewing money received 
 
 through illegal transaction, 169 
 defence of set-off may be set up by garnishee, 169 
 
 and attaching creditor cannot set up Statute of Frauds, 169 
 but set off must be in same right, 170 
 town garnished cannot set off taxes due by debtor, 170 
 set off acquired after garnishment no defence, 171 
 
 otherwise as to mere unmatured set off, 171 
 breach of confidence by depository not allowed, 171 
 garnishee cannot be deprived of right of recoupment or other • 
 
 defence, 171 
 garnishee cannot set up irregularities in main action, 172 
 while pending may be pleaded in abatement of action for debt 
 
 by primary debtor, 172 
 judgment against garnishee conclusive defence, 172 
 
 though obtained by fraud or perjury, 172 
 discharge of garnishee no defence, 173 
 rules as to defence of payment by garnishee, 173, 171 
 garnishee not responsible for regularity of proceedings, 174 
 garnishee must bring fact of assignment of debt to notice of 
 
 court, 174, 177, 178 
 notice to debtor necessary to complete assignment of debt in 
 
 U. S., 176 
 our law otherwise, 175 
 action will lie for malicious garnishment, 175 
 promise to lend money cannot be enforced by, 176 
 no estoppel by admission of debt to plaintiffs unless plaintiffs 
 
 acted on admission to their prejudice, 176 
 foreign garnishment may be shewn to have been void, 176 
 if judgment void against defendant not enforceable against 
 
 garnishee, 176 
 delay for tVro years in proceeding with, held abandonment, 176 
 
 I! 
 
266 
 
 INDEX. 
 
 
 'I 
 li- : 
 
 I I'l' 
 
 I* .. 
 I . ., 
 
 * ; 
 
 i' 
 
 ' 
 
 I 
 
 
 
 QktannBmvT— Continued. 
 
 money deposited for payment oat on debtor's order garnishable.lTft 
 garnishee mast wait reasonable time to enuble creditor to appeal 
 
 from order dismissing summons, 177 
 unliquidated damages not subjeof. to, till judgment entered, 177 
 pension money gamisbable after reoeived and deposited in 
 
 bank, 178 
 only applies to debts owing at time of garnishment, 178 
 , of moneys in hands of official liquidator of company, 227 
 
 of unascertained but undoubted debt, 227 
 
 GrARDIAh B— 
 
 whether subject to garnishment prooeas, 153 
 
 HoKBBS- 
 
 H 
 
 progeny of, follows ownership of mare, 128 
 
 action for value of, against bailee, is on contract 228 
 
 Imuobal Gomtbaot — 
 
 lodging furnished under cannot be recovered for, 11 
 otherwise as to board, 11 
 
 Immkeepcr— 
 
 lien of, 6 
 
 InSOIiVEKCT — 
 
 garnishment after assignment, 130 
 
 Intbbebt- 
 
 when recoverable, 118 
 
 rate of recoverable after maturity of vote, 119 
 
INDEX. 
 
 207 
 
 Imtibplbadir- 
 
 trial by jury allowed, 43, 67, M 
 See Jury. 
 appeal allowed in, if money claimed, or goods valued at oveJ' 
 •100, 44 
 or if parties oonaeui, 44 
 not formerly allowed, 46 
 is merely a collateral proccbding, 46 
 Bailiff to retain his execution till issue disposed of, 46 
 what is meant by money claimed for purposes of appeal. 40 
 as to appraisement of goods, 4G 
 only allowed for proceeds where such claimed, 47 
 claim for rent by landlord not a claim for proceeds, 47 
 whether appeal allowed in all oases where parties consent, 4i), 50 
 practice on appeal, 62 
 stay of proceedings, security, setting down, costs, Ac, on 
 
 appeal, 63, 64, 55, 66, 70 
 section 122 of Division Courts Act, as to calling of jury by 
 
 Judge extended to issues, 67, 64, 65 
 sections 6, 6, 16, 17, 18, 19, 20, 21 and 22 Division Courts Act, 
 
 1880, apply to, 58, 70 
 practice on claim to goods being made, 68, 6U 
 Bvunmons to be issued by Clerk, 69 
 
 claimant to file particulars of claim six days before trial, 59 
 Bailiff's costs allowed if claim dismissed, 49 
 
 but not against execution creditor if costs cot retained, 69 
 proonedingB on, cannot be removed by certiorari, 60 
 question on, is whether claimant at time of seizure entitled to 
 
 goods, 61 
 possession by claimant sufficient prima fade right, 61 
 lien by claimant sufficient, 61 
 
 costs apportioned if each party successful as to part of goods, 01 
 issue to be tried after other oases if amount over 9100, 70 
 
 evidence in such cases to be written down, 70, 102 
 ifsne within words " action at law," 78 
 evidence in, not formerly required to be taken down, 102 
 procedure on, mere matter of practice, and prohibition not 
 
 !ered for irregularity, 103 
 Judge's decision on, find and conclusive, 104 
 
I 
 
 J 
 
 
 i lll!!•''■'■ 
 
 268 
 
 Tntbbpleadeb — Gontinued. 
 
 INDEX. 
 
 Division Court execution oreditors to be made parties to applica- 
 tion by Sheriff, 112 
 by garnishee between rival claimants iu different courts, 129 
 damages may be awarded to successful claimant in England, but 
 not here, 218 
 
 *"• 
 
 r: 
 
 , 
 
 
 JUDOE — 
 
 J 
 
 authority conferred on, must be exercised, 6G 
 
 JUDOMENT — 
 
 transcript of, may be sent to Court in County of recovery, to 
 
 enable examination of debtor, 82 
 unalterable, except by consent or new trial, 218 
 not to be postdated, 226 
 
 Jt'DOMENT Summons — 
 
 meaning of " suflicient means and ability to pay," 92 
 
 JcDiCATUBE Act — 
 
 provisions of, as to service on partnerships not applicable to 
 
 Division Courts 27, 111 
 application of Rule 80 to Division Courts, 93 
 
 as to Rule 285, 94 
 does not regulate nonsuits in Division Courts, 96 
 
 nor adding of parties, 100 
 provisions of, as to Counter-claim apply to Division Courts, 179, 
 
 180, 181 
 confers no new rights, merely changes procedure, 181 
 See Counter-claim. 
 .TrRisniCTioN — 
 
 in action for illegal expulsion from train. Court at place of expul- 
 sion has, 88 
 
 for claims over (100 what is money demand and ascertainment 
 of amount, 89, 90, 99, 101, 107, 114, 116, 118, 121, 225 
 
' 
 
 INDEX. 
 
 269 
 
 JuRiBDicrioM — Continued. 
 
 ut 
 
 to 
 
 to 
 
 notarial fees on note may be recovered though amount over 
 
 «100, 92. 
 abandonment of part to give, should shew to which demand 
 
 applied, 97 
 for money had and received, where action lies, 98 
 where it depends on disputed facts decision of Judge not inter- 
 fered with, 99, 122 
 for assessment over $100 on premium note, 101 
 interest on note over $100 recoverable, 107, 118 
 where terms of tenancy in dispute, title to land not in question, 
 
 111 
 Division Court process limited to Ontario, 112 
 where original amount over $200, but ascertained by signature 
 
 of defendant, Court has jurisdiction to $200, 114 
 where certain events must happen to ascertain amount due, 
 
 extended jurisdiction not applicable, 115 
 where surety paid note over $100 to which he was joint maker. 
 
 Court had no, 120 
 remarks on cases to which extended, applies, 1 21 
 where garnishee discharged. Court must have, against primary 
 
 debtor, 122, 133 
 residence of defendant must be bona tide to give, 216 
 claim for £50 and interest exceeds English County Court, 219 
 $200 and interest beyond, 221 
 
 JUROB— 
 
 allowance to, not attachable, 136 
 
 JrBY — 
 
 «, 
 
 trial by, allowed in Interpleader cases, 43, 67, 60 
 party requiring to give notice for, within 6 days from service of 
 summons, and pay fees for, 67, 61 
 
 day of service excluded, 01 
 no distinction between claimant and creditor as to giving 
 notice, 62 
 
 notice for, to be in writing, 62 
 
 writing may be waived, 62 
 summoning of, 61 
 Judge may call, of his own motion, 62, 64. 66 
 
270 
 
 INDEX. 
 
 , iiti > 
 
 'ImhI) 
 
 
 W i 
 
 'I 'I 
 
 r'.i 
 
 Jury — Continued. 
 
 and give judgment on their verdict, 66 
 Clerks' and Bailiffs' fees for to be paid on giving notice, 63 
 Judge cannot deprive parties of right to, 63, 219 
 
 cannot reject verdict if he disagree with it, 63, 65, 74 
 verdict of, not to be lightly set aside in any Court, 63, 64, 74 
 dissatisfaction with direction to, to be expressed at trial, 64 
 
 Justices of the Peace — 
 
 garnishment of moneys in hands of, 153 
 
 ^ 
 
 LoHDLORI) AMD TENANT — 
 
 dispute between, as to terms of tenancy, title to land not in 
 question, 111 
 
 LEOIBLATUBE — PBOVmCIAL — 
 
 may delegate powers within its jurisdiction, 76 
 not merely an agent of the Imperial Parliament, 76 
 has same authority within its jurisdiction as Imperial Parlia- 
 ment, 77 
 has full jurisdiction over Division Courts and appointment of 
 Judges to preside, 108 
 
 Limb Femcbs — 
 
 contents of award of fence viewers, 124, 126 
 
 award of fence viewers cannot be amended by Judge, 125 
 
 Liqoidatob — 
 
 garnishment of money in hands of, 227 
 
 LODGIRO- 
 
 debt for, prevents exemption of wages from garnishment, 1 
 
 creditor need not be lodging-house keeper, 7 
 furnished for prostitution, no recovery for, 11 
 
 h 
 
INDEX. 
 
 271 
 
 LODOBB — 
 
 e&eotB of, exempt from distress, 6 
 who is a, 7, 8, 9 
 rights of, 9. 10 
 
 Malicious Garnishment— 
 
 action will lie for, when, 175 
 
 Mabbibd Woman — 
 
 income of, not gamishable where restraint on anticipation 
 
 imposed, 142 
 
 Mabtbb and Sebvant— 
 
 Justice of Peace no power to fine servant for refusal to work. 94 
 
 Mechanic's Lien — 
 
 suit to enforce, to be brought where cause of action arose or 
 
 defendant lives, 90 
 reference to acts respecting, 230 
 
 Misdibection of Jury — 
 
 should be complained of at trial, 64 
 
 Mobtoaoe Sale — 
 
 garnishment of surplus where amount »500, 117 
 
 do. allowed after sale made, 143 
 
 MuTOAL Fire iNSTiitANCE Co.— 
 
 assessment over »100 not recoverable in Division Court, 101 
 illegality of part of assessment vitiates whole, 124 
 
 N 
 
 New Tbial— 
 
 appeal from decision on motion for, when permitted, 44 
 on motion for, judgment may be given which should have been 
 pronounced at trial, 58, 73, 74 
 but verdict of jury cannot be rejected, 74 
 
 ' 
 
 i 
 

 ■ i i 
 
 272 
 
 New Trial — Continued. 
 
 INDEX. 
 
 power to grant, imposes duty of granting if grounds sufficient, 68 
 when granted generally, 68, 69 
 Courts may grant as often as justice requires, 60 
 all objections should be urged on motion for, 71 
 or could not be urged on appeal, 71, 72 
 
 NoN-JOINI>ER — 
 
 no power to add defendants in Division Courts, 100 
 of plaintiffs, objection to must be made promptly and before 
 bearing, 204 
 
 Non-Suit— 
 
 does not amount to judgment on merits in Division Courts, 96 
 plaintiff may move to set aside, 114 
 
 Notice of Action — 
 
 personal service of, unnecessary, 109 
 Court in which action to be brought need not be stated, 109 
 day of committal of act excluded in computation of time for 
 bringing action, 109 
 
 Partnership — 
 
 each member of, to be served with summons, 27, 101, 110, 132 
 effects of may be seized on execution against member of, 100 
 cannot be garnished in its partnership name, 141, 1.57 
 
 Pension Money — 
 
 received by pensioner and deposited in bank garnishable, 178 
 
 Policy of Insurance- - 
 
 claim on, is for unliquidated damages. 199 
 set off not applicable to, 199 
 
INDEX. 
 
 273 
 
 68 
 
 tre 
 
 Po8i OrncE — 
 
 direction to pay through, superseded by action, 98 
 
 Practick of High Court — 
 
 Judges cannot follow as to taxation of costs, 86 
 
 how far, may be introduced into Division Courts, 86, 87 
 
 as to security for costs, 92 
 
 as to rule 80, 0. J. A., 93 
 
 as to rule 285, 0, J. A., 94 
 
 as to non-suits, 96 
 
 as to adding defendants, 100 
 
 Pboornt — 
 
 96 
 
 or 
 
 32 
 
 property in, follows ownership of dam, 123, 124 
 
 Prohibition — 
 
 granted when full notice of trial not given in Division Court, 89 
 nature of claim appearing on summons is the claim recognizable 
 
 on motion for, 97 
 not granted if Judge finds jurisdiction on disputed facts, 99 
 not granted for failure to comply with rules of practice, 108, 113 
 may be granted, though notice disputing juiisdiction not given. 
 
 110, 132 
 right to, taken away only by express enactment, 110, 132 
 not granted pending appeal, IIB 
 costs of motion for, where no meritorious defence, 121 
 will not lie for mistake of law if Court had jurisdiction, 217 
 remarks on frequency of granting, 217 
 granting of, sometimes discretionary, 221 
 Judge's notes at trial to be accompanied by his report of case, 
 
 228 
 when to be applied for, 228 
 
 no costs of, if question not raised at trial in Court below, 228 
 acquiescence bar to, in certain cases, 228 
 
 Prohibboby Note — 
 
 action on, by hona fide holder for value, 91 
 interest on, may be recovered in Division Court though amount 
 over »100, 107 
 
\ 
 
 li 
 
 • i% 
 
 274 
 
 INDEX. 
 
 , <. 
 
 \m 
 
 
 pROMiBBonT Note— Continued. 
 
 oould be stamped by maker any time on day of issne though 
 
 after endorsement by payee, 114 
 need not be produced to clerk on signing judgment on, 119 
 not garnishable, 132, 138, 169, IGO 
 
 unless not negotiable, 158 
 counter-claim for part of, paid to innocent holder where part of 
 
 consideration failed, 226 
 partial failure of con&ideration for, 227 
 
 Proof of Claim — 
 
 should be given though defendant does not appear at trial, 116 
 remarks on this decision, 116 
 
 RAIt/TAY- 
 
 R 
 
 cause of action against, for ejection from trair > -ysu wher* 
 
 ejection takes place, 88 
 purchase money of lands expropriated by, not f i.rr :uMv till 
 
 debt absolute, 144 
 
 Beoeitbb — 
 
 Beh — 
 
 appointment of, by way of equitable execution. 143 
 garnishment of moneys iu hands of, 153 
 
 garnishment, a proceeding in, 1 49 
 
 attachment proceedings against absconding debtor are in, 282 
 
 Bbnewaii — 
 
 of expired warrant, 97 
 
 &BNT — 
 
 when overdue, attachable, 133 
 
INDEX. 
 
 275 
 
 Bbb Jcdicata- 
 
 judgment of Division Court uureversed on appeal oonolusive in 
 
 all other courts, 73, 104, 103, 218 
 where judge decides summarily by consent between rival claimants 
 
 of garnished debt, 139 
 judgment against garnishee amounts to, against defendant, 172 
 
 though obtained by fraud or perjury, 172 
 but discharge of garnishee no defence, 173 
 rules as to, in setting up an action by primary debtor against 
 
 (garnishee, 173 
 
 s 
 
 BccuRiTv FOR Costs- 
 
 may be ordered in Division Courts, 92 
 
 unless there is no defence, 92 
 defendant merely setting up counter-claim not entitled to, 215 
 one bondsman sufficient for, 216 
 
 Sebvicb— 
 
 of garnishee summons on foreign corporation made similar to 
 ordinary summons, 27 
 
 See Corporation. 
 on partnership, each member must be served, 27, 132 
 whether, must be effected by Bailiff, 27 
 bad, if inspection of original demanded and refused, 27 
 
 Sbt-Off— 
 
 Bhbbiff — 
 
 right of, before Judicature Act, 182 
 by garnishee. — See Qarnishment. 
 
 whether sabjeot to garnishment process, 153 
 
 SoUaiOB AND CUBMT — 
 
 order to tax bill obtained, notwithstanding pending action in 
 Division Court, 113, 114 
 

 I 
 
 276 
 
 INDEX. 
 
 
 ■ •■■*'JI ■ 
 
 ■>f.lfK ■ 
 
 \\\ 
 
 
 
 Solicitor anp Client — Continued. .• . 
 
 where cause of action on bill arises, 122 
 
 lien of Solicitor takes precedence of garnishee order, 139, 14U 
 
 Splitting Demands — 
 
 wageH nnd money paid, distinct claims, 216 
 
 Statute of Frauus- 
 
 attaching creditor cannot set up to defeat gamishee'e set>off, 169 
 hiring for a year to commence in future within, 224 
 existence of contract not enforceable because of, prevents implied 
 contract, 224 
 
 Btatdtkb- 
 
 2 Geo. n. cap. 22 (I) (Set Off) 182 
 1 and 2 Vic. cap. 110, sec. 118 (I) (Judgments) lab 
 19 and 20 Vic. cap. 108, s. 68 (I) (County Courts) 45 
 23 and 24 Vic. cap. 127, sec. 28 (I) (Solicitors) 140 
 
 30 and 31 Vic. cap. 142, sec. 31 (I) (Interpleader) 218 
 
 31 and 32 Vic. cap. 86, sec. 1 (I) (Marine Insurance) 199 
 38 and 34 Vic. cap. 30 (I) (Wages Exemption) 2 
 36 Vic. cap. 6, sec. 6 (0) (Official Securities) 123 
 
 40 Vic. cap. 35 (D) (Master and Servant) 94 ' 
 
 B. S. 0. cap. 1, sec. 8, ss. 13 (Interpretation — Person) 41 
 cap. 42 (Local Courts) 95, 108 
 cap. 47, B. 122 (Division Courts— Jury) 57, 64 
 
 8. 126 (Division Courts — Oamishment) 1, 2 
 s. 130 ( do. do. ) 83 
 
 8. 133 ( do. do. ) 17, 18 
 
 cap. SO, SB. 266, 267 (Common Law Procedure — Interest) 
 
 118 
 cap. 64, 8. 12 (Arbitrators) 101 
 cap. 66, s. 72 (Execution) 186 
 cap. 67, 8. 12 (Imprisonment for Debt) 135, 136 
 cap. 73, B. 8 (Justices of the Pdaoe) 124 
 cap. 93, B. 8 (Crown Debtors) 123 
 cap. 119 (Chattel Mortgages) 123 
 cfip. 120 (Mechanics' Liens) 230 
 cap. 136 (Landlord and Tenant) 138 
 
INDEX. 
 
 277 
 
 69 
 
 Ml 
 
 8 
 »t) 
 
 Statotbb Continurd. 
 
 cap. 147 8. 2 (Innkeepers) o 
 cap. 180 8. 100 (AssesBinont) 171 
 cap. 199 (Ditches anil Water Courses) 230 
 40 Vic. cap. 12 (0) (Ditches and Water Courses) 230 
 
 42 Vic. cap. 19 (0) (Administration of .Justice in North-West 
 
 Ontario) 230 
 
 43 Vic. cap. 5 (Di^sion Courts) 44, 63, 54, 55, 66, 68 
 
 10 (Creditors Rehef Act) 230 
 
 12 (Algoma, Nipissing and Thunder Bay) 230 
 
 16 (Lodgers and Boarders) 6 
 
 44 Vic. cap. 9 (County of Dufferin) 230 
 46 Vic, cap. 6 (Court of Appeal) 131 
 
 7 (Division Courts) 76, 92, 231 
 
 46 Vic. cap. 6 (Ahsconding Debtors) 231 
 
 27 (Ditches and Water Courses) 230 
 
 47 Vic. cap. 2 (Administration of Justice in Disputed Territory) 
 
 231 
 3 (Administration of Justice in Algoma, Thunder 
 Bay and Nipissing) 230, 231 
 
 8 (Ditches and Water Courses) 230 
 
 9 (Division Courts) 1, 17, 33, 39 
 
 10 (Administration of Justice) 43, 102 . . i' 
 
 14 (Algoma, Thunder Bay and Nipissing) 230 
 
 18 (Mechanics' Liens) 230 
 
 43 (Ditches and Water Courses) 230 
 
 Stop Obdbr— 
 
 may be issued at instance of judgment creditor of debtor 
 entitled to funds in court, 126, 137 
 
 Stbikino out Defence — 
 
 power of Division Courts to apply Rule 80 0. J. A., 93 
 
 StJBBXITUMONAL SERVICE — 
 
 principle of ordering, 226 
 
 Summons — 
 
 must be served full period before sitting of eourt, 89 
 
 . I 
 
 ! i 
 
 
278 
 
 INDEX. 
 
 Sdbetibb or Clbbx— 
 
 responsible for deputy's acts during leave of absence, 76 
 
 not liable if special agreement made by suitors with clerk as to 
 
 paying over moneyH, 110 
 statements of clerk not conclusive against, 110 
 bound by entries of olerk in books, doubttul, 110 
 
 SUBBTT — 
 
 , f:w 
 
 no right to have transcript issued against principal alone, iu 
 
 action against both, 91 
 no right to sue principal, in Division Court on note over 9100 to 
 
 which he is joint maker, 120 
 cannot set up by counter-claim that plaintiff should first resort 
 
 to principal, 203, 229 ' 
 
 i it) 
 
 i'-^ I 
 
 Taxrs — 
 
 cannot be set ofiF by town against debt due primary debtor, 170 
 
 TSBBITOBIAL DIVISIONS — 
 
 fonnerly not vrithin Division Court Act of 1880. 91 
 
 see now 46 Vic, cap. 7, 92 
 Acts respecting, referring to Division Courts, 230, 231 
 
 Third Parties — 
 
 Oontribntion and Indemnity : — 
 
 defendant to serve with copy of defence, 201 
 sufficient that question in action is such between defendant 
 and. 203 
 or that there is a question common to all parties, 204 
 joint tort feasors not, 204 
 
 cases in which, not allowed to be brought in, 204, 206 
 refusal of Court to give directions ends action as to, 206 
 may be brought in, in County Court actions though amount 
 
 claimed of, by defendant exceeds jurisdiction, 206 
 effect of 1883 English Bules as to, 206, 307 
 
INDEX. 
 
 !J79 
 
 Tbiri) Pabtikb— Cor ti!..«d. 
 
 Courts rtidcourage bringing in. if plaintiff not oonoemed, 207, 208 
 only to be joined before trial and then only for the purpose of 
 binding by judgment, 209 
 
 TiTLK TO Land— 
 
 not brought in question by dispute as to terms of tenancy, 111 
 
 Tbanbobipt of Jodoment — 
 
 may be sent to another court in county where judgment recovered 
 
 to enable examination of judgment debtor, 82 
 clerk holding, to notify immediately return of nulla bona to 
 execution, on, 8B, 85 
 to plaintiff, if address known, 83, 86 
 or to clerk who issued, 83 
 contents of notice, 83, 84 
 
 notice to be registered and certificate thereof preserved, 83. «4. 86 
 execution to be first issued from Division Court, 89 
 must be issued against all defendants, 91 
 whether garnishee proceedings must be set out in, 133 
 
 Tbial- 
 
 fuU notice of, to be given or prohibition ordered, 89 
 
 TBtrSTBES OF COUBTB— 
 
 garnishment of moneys in hands of, 163 
 
 Tbust Mosetb— 
 
 interest in garnished, directed to be paid over as it accrued, 134 
 
 accuracy of this decision, 134 
 cestui que trust may prevent garnishment of, for debt of trustee, 
 
 147, 152 
 garnishee proceedings cannot overthrow trusts, 150 
 
 Venhe- 
 
 change of, when court has no jurisdiction, 102 
 
 plaintiff applying for change of, to make out case cf mistake, 102 
 
 whether plaintiff or defendant should apply for change of, 102, 108 
 
m 
 
 280 
 
 INDEX. 
 
 
 WaRIUMT or GOMMITTAI.- 
 
 amendment of dates and recitals in, 9ft 
 renewal of, 07 
 
 WOROB — 
 
 directory or periuisHive may amount to a command, 67 
 
 meaning of :— 
 "aotion at law," 78 
 "board," 6 
 
 " caase of action," 2S, 26, 27 
 " corporation," 84, 36 
 "dealing," 144 
 "debt," 5 
 " dwell," 23 
 " employee," 4 
 " execution creditors," 112 
 "famUy," 15, 16 
 "fieri facias," 112 
 " forthwith," 86 
 " immediately," 85 
 " is empowered," 66 
 "it shall be lawful," 66 
 " lodger," 7, 8, 9 
 "may," 66 
 " nearest," 28, 29 
 " owiug or accruing," 142, 144 
 " person," 41 
 , " process," 47 
 
 "reside or carry on business," 88 
 
 " shall if he deems it advisable," 66 
 
 " snffioient means and ability to pay," 92 
 
 " sum in dispute," 224 
 
 " support," 14 
 
 " warrant of execution," 112 
 
 " within a reasonable time," 86 
 
CLASSIFIED INDEX OF FORMS. 
 
 Afkiuavit Ol' — 
 
 execution of appeal bond, 245 
 
 justitioation, 244 
 
 Hervioe on absooudiug debtor by leaving with peiBon at last 
 
 place of abode, 2SH 
 service on absconding debtor by leaving at last place of 
 
 abode, 284 
 service on absconding debtor by leaving at last place of busi- 
 
 ness, 235 
 
 service of garnishee summons before judgment on agent of 
 corporation, 286 
 
 service of garnishee summons after judgment on agent of 
 corporation, 237 
 
 Appeal Bond— 
 
 in interpleader matter where claimant appellant, 239 
 do. do. where creditor do. 241 
 Consent to Appeal, 238. 
 Order Stayinu Proceedings on Appeal, 238. 
 
 If 
 
Iff' 
 
 
 ^ 
 
 ■ma 
 
 fi 
 
 '- I'U 
 
 !, 
 
 M4 
 
 ' I 
 
 
 r 
 
 '" " 
 
 1 ' 
 
 5., : 
 
 -A 
 
 W 
 
 1 
 
 * -nrl 
 
 '.\ 
 
 Ik 
 
 ■ I 
 
 mtt 
 
 1 
 
 jH 
 
 
 9i'% 
 
 
 i 
 
 4 '1 
 
 i i#|C! 
 
 
FORMS OF BILLS OF COSTS. 
 
 ^^ 
 
 FORM 132. 
 
 Bill of Costs upon a claim for, say 120 up to and including judgment 
 entered by the Clerk, upon special summons, no notice of defence being 
 given. [Under Tariff which comes into force on the 1st of Septem- 
 ber, 1884.] 
 
 Clerk's Fees. 
 
 Receiving claim, numbering and entering in Procedure Book.. . . »0 15 
 
 xssuing Summons with necessary notices and warnings thereon.. 40 
 
 Copy of summons, including all notices and warnings thereon.. . . 20 
 
 Receiving and entermg Bailiff's return to summons 15 
 
 Affidavit of service and administering oath to the deponent 26 
 
 Notice to Plaintiff, when defendant has failed to give notice of 
 
 defence, 15c ; postage and registration, 5c 20 
 
 Entering final judgment by the Clerk Q ^^ 
 
 Total Clerk's fees *1 85 
 
 Bailiff's Fee.1, 
 
 Service of summons $0 30 
 
 Return of service, and attending Clerk's office to make 
 
 necessary affidavit 15 
 
 90 46 
 Total Bailiff's fees 45 
 
 Total costs • • . • • ^2 30 
 
 Taxed this day of 18 . 
 
 Clerk. 
 
If; 
 
 .■ 'tj. 
 
 m 
 
 i 
 
 •>>^ 
 
 ADDENDA— 11. C. TAKIFF, 1884. 
 
 ■n- 
 
 
 mm 
 
 
 '-£ ' 
 
 
 I 
 
 ; 1 I 
 
 u 
 
 Bill of Cobtb upon claim for, say fliCiO.OO, defended, cause tried, and 
 judgment entered for plaintiff, with costs. 
 
 Clerk's FeeH. 
 
 Keceiving claim, dc ^0 15 
 
 Issuing summons. <&c 5U 
 
 Copy of summons, &e 20 
 
 Keceiving and entering Bailiff's return, &c 15 
 
 Aifldavit of service, &c 25 
 
 Entering and noting defence, &c., in procedure book 26 
 
 Subpopna to witness 15 
 
 Three copies 15 
 
 Notice of defence, &c. , to plaintiff, and mailing same, loo. ; 
 
 postage and registration, 5c 20 
 
 Becording and entering judgment rendered at the hearing 50 
 
 Total Clerk's Fees »2 60 
 
 Hailif'n Fees. 
 
 Service of summons, iSrc 90 40 
 
 Attending to return, &e 16 
 
 Service of subpoena (3 witnesses) 45 
 
 Calling parties and their witnesses 16 
 
 »1 16 
 
 Total Bailiff's fees . 
 
 1 15 
 
 IT* 
 
 -ft?, 
 
 %1 
 
 ■|if!j!^ 
 
 Total costs 93 65 
 
 Taxed this day of 18 . 
 
 Clerk. 
 X.B.- Mileage and fees to witnesses, if any, to be added. 
 
n 
 
 APDENDA-P. C. TARIFF. 1884. 
 
 L>sr) 
 
 I 
 
 iThe followintr Schedules of Clevks and BailittV 
 Fees have lately been framed by the Board of 
 County Judges in substitution of those now exiBt- 
 ing. (-)n their being approved of under the 240th 
 section of the Division Courts A(5t, they will come 
 into force on the First day of Settembek, A. D., 
 1884.1 
 
 FORM 133. 
 
 SCHEDULE OF CLERKS' FEES. 
 
 1. ReceivinK claim, numbering and entering in Procedure Book »0 15 
 
 (This item to apply to entering in the procedure book a tran- 
 script of judgment from another court, but not an entry made 
 for the issue of a judgment summons.) 
 
 2. Issuing summons with necessary notices and warnings thereon, 
 
 or judgment summons (as provided in the forms), in all, 
 
 Where claim does not exceed f 20 
 
 " exceeds «20 and does not exceed «60 50 
 
 " exceeds «60 and does not exceed $100 60 
 
 • ' «' exceeds $100 
 
 [N. B.-In replevin and interpleader suits the value of goods to 
 regulate the fee.] 
 
 3. Copy of summons, including all notices and warnings thereon .... 20 
 
 4. Copy of claim, (including particulars) when not furnished by ^ ^^ 
 
 plaintiff (to be paid by the plaintiff) 
 
 r,. copy of set-off (including particulars), when not furnished by the ^ ^^ 
 
 defendant (to be paid by the defendant) 
 
 () Receiving and entering BaiUff's return to any summons, writ or 
 
 warrant issued under the seal of the Court (except summons to 
 
 witness and return to summons, or papers from another Divi- _ 
 
 lo 
 
 sion) ' 
 
 ii" 
 
 •li 
 
 M 
 
 <;'■ 
 
 I 
 
\ 
 
 
 ^t 
 
 
 ''-^■■i, 
 
 .\ 
 
 286 ADDENDA-D. C. TARIFF, 1884. 
 
 7. Entering and noting every defence or notice of adiniBsion in Pro- 
 cedure Book ^0 25 
 
 (To be paid in the first instance by the defendant or other per- 
 son entering it — but it may be afterwards taxed against the plain- 
 tiff should costs be given against him.) 
 
 H. Taking confession of judgment 10 
 
 (This does not include aitidavit and oath, chargeable under 
 item 9.) 
 
 9. Every necessary affidavit, if actually prepared by the Clerk, and ad- 
 ministering oath to the deponent 25 
 
 10. Copies of papers for which no fee is already provided, — neces- 
 sarily required for service or transmission to the Judge, — each . . 10 
 
 11. Every notice of defence or admission entered, or other notice re- 
 quired to be given by the Clerk to any party to a cause or pro- 
 ceeding, or to the Judge in respect to the same, and mailing. ... 15 
 
 12. Entering final judgment by Clerk, on special summons, where 
 
 claim not disputed 50 
 
 18. Entering every judgment rendered at the hearing, or final 
 
 order made by the Judge 50 
 
 [This one fee of 60 cts. will include the service of recording 
 at the trial and afterwards entering in the procedure book the 
 judgment, decree and order in its entirety, rendered or made at 
 the trial. In a garnishee proceeding before judgment, the fee of 
 50 cts. will be allowed for the judgment in respect to the primary 
 debtor, and a like fee of 50 cts. for the adjudication whenever 
 made in respect to the garnishee.] 
 
 14. Subpoena to witness 16 
 
 (The Subpoena may include any number of ^<imes therein, and 
 only one original subpoena shall be taxed, except the Judge other 
 wise orders.) 
 
 16. For every copy of Subpoena required for service 06 
 
 16. Summons for each juryman, when called by the parties 10 
 
 (Only 26 cts. in all is to bo allowed for returning a Judge's jury.) 
 
 17. Every order of reference or order for adjournment made at hearing 
 and every order requiring the signature of the Judge, and enter- 
 
 
ADDENDA— D. C. TABIFF, 1884. 287 
 
 ing the same *0 ^^ 
 
 (Any warning necessary with order, «.</., the warning in form 
 12, forms part of the order.) 
 
 18. Transcript of judgment (under sections 161 or 165) 25 
 
 19. Every writ of execution, warrant of attachment, or warrant for 
 arrest of dehnquent and delivering same to Bailiff 60 
 
 20. Renewal of every writ of execution when ordered by the judg- 
 
 15 
 ment creditor 
 
 21. Every bond when necessary and prepared by the Clerk (inclu- 
 ding affidavit of justification) *' "" 
 
 22. For necessary entries in the debt attachment book in each case 
 
 ,. „, 20 
 
 (m all) 
 
 23. Transmitting transcript of judgment ; or transmitting papers 
 for service to another division, or to Judge on application to him, 
 including necessary entries, but not postage 25 
 
 24. Receiving papers from another division for service, entering the 
 
 same, handing to the Bailiff, receiving and entering his return, 
 and transmitting the same (if return made promptly, not 
 
 otherwise) ^ '^^ 
 
 (This fee does not include a charge for receiving transcript of 
 judfe lent, for which a fee of 16 cents is taxable under item 1.) 
 
 25. Search by person not party to the suit or proceeding, to be paid 
 by the applicant. 10c. : search by party to the suit or proceeding 
 
 where service is over one year old 
 
 (No fee is chargeable for search to a party to the suit or pro- 
 ceeding, if the same is not over one year old.) 
 
 26. Taxing costs in defended suits ^ ^u 
 
 l!l 
 
 I 
 
iVS 
 
 288 
 
 ADDENDA— D. C. TARIFF. 1884. 
 
 i 
 
 j-]! 
 
 
 
 p 
 s 
 
 ■^•r 
 ■^"1 
 
 i<i 
 
 FORM 134. 
 
 SCHEDULE OF BAILIFFS' FEES. 
 
 1. Service of summons, writ or warrant, issued under the seal of the 
 Court, or Judg:/s summons on each person (except summons to 
 witness, and summons to jurjman) : 
 
 Where claim does not exceed $20 $0 30 
 
 " " exceeds $20 and does not exceed $60 40 
 
 '• " " $60 and does not exceed $100 50 
 
 " $100 75 
 
 i^In interpleader suits the value of the goods to regulate tlie fee.] 
 
 2. For every return as to service of summons, attending at the 
 Clerk's oifice and making the necessary affidavit (as provided 
 
 by Rule 90) 15 
 
 3. Service of summons on witness or juryman, or service of notice.. 15 
 
 4. Taking confession of judgment and attending to prove 10 
 
 5. For calling parties and their witnesses at tlie sittings of the 
 Court in every defended case, as provided by Rule Stl, amended 
 byBulel68 15 
 
 G. Enforcing every writ of execution, or summons in replevin, or 
 warrant uf attachment, or warrant against the body, — each, 
 
 Where claim does not exceed $20 50 
 
 " " exceeds $20 and does not exceed $60 75 
 
 " $60 100 
 
 (Executing summons in replevin, includes service on defendant. 
 The value of the goods to regulate the amount of the fee.) 
 
 7. Every mile necessarily travelled to serve summons or process, or 
 other necessary papers, or in going to ftize on attachment, or in 
 going to seize on a writ of execution, where money made or 
 case settled after levy 12 
 
 (In no case is mileage to be allowed for a greater distance than 
 from the Clerk's office to the place of service or seizure. ) 
 H. Mileage to arrest delinquent under a warrant to be at 12 cents 
 
30 
 40 
 50 
 
 76 
 
 15 
 15 
 10 
 
 15 
 
 50 
 
 75 
 00 
 
 12 
 
 ADDENDA-D. C. TARIFF, 1884. 289 
 
 per mile, bat for carrying delinquent to prison, including all 
 expenses and assistance, per mile 80 20 
 
 0. Every schedule of property seized, attached or replevied, inclu- 
 ding affidavit of appraisal, when necessary. 
 
 Not exceeding »20 .30 
 
 Exceeding 920 and not exceeding 960 50 
 
 Exceeding »60 75 
 
 10. Every bond when necessary, when prepared by the Bailiff, (inclu- 
 ding affidavit of justification) 50 
 
 11. Every notice of sale not exceeding threp, under execution or 
 under attachcaent, each 15 
 
 12. There shall be allowed to the Bailiff, for removing or retaining 
 property seized under execution or attached, reasonable and ne- 
 cessary disbursements and allowances, to be first settled by the 
 Clerk, subject to appeal to the Judge 
 
 13. There shall be allowed to the Bailiff five per cent, upon the 
 amount realized from the sale of property under any execution, 
 
 but such percentage not to apply to any overplus thereon 
 
 (But if execution be satisfied in whole or in part after seizure 
 
 and before sale, the Bailiff to be entitled to charge and receive 
 three per cent, on the amount realized.) 
 
 [N. B.~A Question frequently arises on taxa- 
 tion ot costs, whether Barristers, Solicitors, Physi- 
 cians, Surgeons, Engineers, Surveyors, Architects 
 and Veterinary Surgeons are entitled in the Divis- 
 ion Court to be paid as professional witnesses. 
 With the exceptions which will be presently men- 
 tioned, the writer is not aware of any authority for 
 allowing or taxing to any party to a cause any fee 
 to a professional man beyond that allowed to an 
 ordinary witness. The tariff in force in the High 
 Court of Justice has no application in this respect 
 to Division Court proceedings. The only witness 
 
 !i; 
 
290 
 
 ADDENDA— D. C. TARIFF, 1884. 
 
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 I I 
 
 r 
 
 t. > 
 
 
 t 
 
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 lis ili 
 
 fees allowable are those preBcribed for all witnesses 
 alike. (Sinclair's D. C. Act, 279.) 
 
 The exceptions to this rule are : 
 
 (1). If the witness should not be a resident of the 
 County in which the action was brought, and his 
 attendance at the Division Court was in obedience 
 to a Subpoena issued from the High Court of 
 Justice under the 98th section of the Division 
 Courts Act, then the fees which the witness would 
 have been entitled to, had the action been in the 
 High Court, may, on payment of them, be taxed to 
 the successful party in the Division Court. 
 
 (2). A person who has obtained a diploma from 
 the Veterinary College, to practice as a Veteri- 
 nary Surgeon, and who attends the Division Court 
 as a witness " in such cases as relate to the profes- 
 sion," is by virtue of the provisions of the 27th 
 section of Chapter 35 of the Revised Statutes of 
 Ontario, entitled to professional fees for his attend- 
 ance aB sucn witness. The words of the section 
 giving that right are these : 
 
 "Veterinary practitioners holding such diplomas 
 (that is from the Veterinary College) shall be enti- 
 tled to professional fees in attending any Court of 
 Law as witnesses in such (^ases as relate to the 
 profession." 
 
 (3) A Surveyor who is summoned to attend a 
 Division Court for the purpose of giving evidence 
 in his professional capacity as a Surveyor, is enti- 
 tled for each day he so attends, in addition to his 
 travelling expenses (if any), and to be taxed and 
 
ADDENDA-D. C. TARIFF, 1884. 
 
 291 
 
 paid in the manner by law provided with regard to 
 the payment of witnesses attending such Court, 
 the sum of four dollars. (Rev. Stat. Ontario, Chap. 
 146, section 25.) 
 
 In the casts of the Veterinary Surgeon and the 
 Surveyor, the attendance of each must have special 
 reference to evidence of a professional character, 
 or evidence given in consequence of some profes. 
 ional servi(;e rendered by them, or to give profes- 
 ional opinions. If summoned to give other evidence 
 than that, either one would only be entitled to the 
 same fees as an ordinary witness in the Division 
 Court. The Clerk must in the first place deter- 
 mine whether the evidence given, or the purpose 
 for which the witness was summoned was of a pro- 
 fessional nature, and secondly, the proper fees 
 (if any) to be allowed to him, subject to an appeal 
 to the Judge. In the higher Courts the taxing 
 officers are strict in exacting (if necessary), proof 
 that the evidence was of such a character as to en- 
 title the person to the fees of a professional wit- 
 ness. The same rule should be adopted by Clerks 
 in the Division Courts. 
 
 The travelling expenses of any professional man 
 who was a witness, except when attending under 
 Subpcena from High Court, could only be taxed on 
 the Division Court scale. The Statutes .just refer- 
 red to do not, in the opinion of the writer, adopt 
 any other scale. Where a Statute imposes a pecu- 
 niary burden it is subject to the rule of strict con- 
 struction. Maxwell on Statutes, 259.] 
 
292 
 
 ADDENDA— ADDITIONAL D. C. FORMS. 
 
 
 
 V '■ 
 
 ' ■■>« 
 
 ADDITIONAL FORMS OF PROCEEDINGS 
 IN DIVISION COURTS. 
 
 ORDERS OF COMMITMENT ON JUDGMENT 
 
 SUMMONS. 
 
 [The greatest particularity is required in framing 
 Orders of Commitment under Division Court pro- 
 cess. The Division Court, being one of inferior 
 jurisdiction, nothing is presumed in favor of that 
 jurisdiction, and whatever facts are necessary in 
 order to take away the liberty of the subject, must 
 clearly appear on the face of the Order for Commit- 
 ment. If such facts do not so appear, the order is 
 invalid, and no legal arrest or imprisonment can 
 take place under it. The necessity, therefore, for 
 concise forms of commitment in the different cases 
 allowed by the Statute will obviously appear.] 
 
 
 I.— WHERE PARTY DOES NOT ATTEND 
 JUDGMENT SUMMONS. 
 
 ON 
 
 {Court and Cause to be inserted if order not indorsed 
 on or annexed to Judgment Summons and refer- 
 ring to it) 
 
 Whereas, it appears to me that the within (or 
 above) named defendant has been duly served with 
 
ADDENDA- ADDITIONAL D. C. FORMS. 
 
 293 
 
 tlie within (w annexed) JudKment SummoiiH, and 
 that he does not attend an required by the naid 
 SummonH, or in purHiiance thereof, nor doeH he 
 allege a sufficient reason for not attending thereon ; 
 and it further appearing to my natisfaction that 
 8U(;h non-attendan(%' of the defendant m wilful : 
 Now, therefore, I, aa the Judge of the said Court 
 from which said Judgment Summons issued, do 
 hereby order the said defendant to be committed 
 therefor to the Common Gaol of the County of 
 for the period of days. 
 
 Dated, etc. 
 
 Jiulge. 
 
 •2.— WHERE THE DEFENDANT ATTENDS AND 
 REFUSES TO BE SWORN OR TO DECLARE. 
 
 {Coxirt. etc., as in No. 1.) 
 
 Whereas, it appears to me that the within {or 
 above) named defendant has been duly served with 
 the within {or annexed) Judgment Summons, and 
 now attends in pursuance thereof, and refuses to 
 be sworn {or to declare, «s the case may be) touching 
 and concerning the matters on which he was so 
 summoned : Now, therefore, I, as the Judge of the 
 said Court from which said Judgment Summons 
 issued, do hereby order the said defendant to be 
 committed therefor to the Common Gaol of the 
 County of for the period of days. 
 
 Dated, etc. 
 
 Judge. 
 
294 
 
 ADDENDA— ADDITIONAL D. 0. FORMS. 
 
 ■""1 ■ n 
 
 t ■ 
 
 S! : 
 
 in-' • 
 
 3.._WHERE THE DEFENDAN"" DOES NOT MAKE 
 ANSWER TO THE SATISFACTION OK THE 
 JUDGE. 
 
 (Court, etc., a^ in No. 1.) 
 
 Whereas, it appears to me that the within (o/* 
 ab&ve) named defendant has been duly served with 
 the within (or annexed) Judgment Summons ; and 
 whereas, the said defendant has duly attended in 
 pursuance thereof, and been sworn (or km duly 
 declared) touching and concerning the matters on 
 which he was so summoned for examination ; and 
 whereas, the said defendant did not on such 
 examination make answer touching such matters 
 to my satisfaction : Now, therefore, I, as the Judges 
 of the said Court from which said Judgment 
 Summons issued, hereby order the said defend- 
 ant to be committed therefor to the <^yommon 
 Gaol of the County of for the period of 
 
 days. 
 
 Dated, etc. 
 
 Judge. 
 
 ^'m 
 
 '^S |*J nil' 
 
 'if li 
 
 4.— WHERE THE PARTY HAS BEEN GUILTY OF 
 FRAUD, ETC., ETC. 
 
 {Court, etc., as in No. 1.) 
 
 Whereas it appears to me that the within {or above) 
 named defendant has been duly served with the 
 within {or annexed) Judgment Summons ; and 
 whereas, the said defendant has duly attended in 
 pursuance thereof and been sworn {or has duly 
 
 
ADDENDA— ADDITIONAL D. C. FORMS. 
 
 295 
 
 I 
 
 declared) and examined thereon ; and wherean, from 
 such examination of the defendant {m' by other 
 evidence an the case rnay he) it ai)pears to me : 
 
 (1) That he obtained credit from the i^Iaintiff 
 lierein, or incurred the debt or liability in thin 
 (^auHe under false pretences ; 
 
 Or (2) that the said defendant obtained credit 
 from the plaintiff herein or incurred the debt or 
 liability in this <!ause by means of fraud {or lyreach 
 of tnist, as the case may be ;) 
 
 Or (3) that the said defendant wilfully contracted 
 the debt or liability in this cause, without having 
 had at the time a reasonable expectation of beinp: 
 able to pay or discharge the same ; 
 
 Or (4) that the said defendant has made or caused 
 to be made a gift, delivery or transfer of certain of 
 his property, with intent to defraud his creditors 
 or some one of them ; 
 
 Or (5) that the said defendant has removed or 
 concealed certain of his property, with intent to 
 defraud his creditors or some one of them ; 
 
 Or (6) that it appears from such examination 
 that the defendant had when summoned herein (w 
 since the judgment in this cause tvas obtained against 
 him, has had, as the case may be) sufficient means 
 and ability to pay the debt (or damages or costs 
 as the case may be), recovered in this action against 
 him, and has refused and neglected to pay the 
 same ; 
 
 Or (7) that the said defendant was duly ordered 
 
296 
 
 ADDENDA— ADDITIONAL D. C. FORMS. 
 
 r*«ii';:n 
 
 to pay the debt {or damages or costs or as the case 
 may be) in this cause ; {here set out the terms of any 
 previous order for payment of the debt, etc., by instal- 
 ments or otherwise, with particularity), that the de- 
 fendant has refused and neglected to pay the same 
 at the time so ordered : Now, therefore, I, as the 
 Judge of the said Court from which the said Judg- 
 ment Summons issued, hereby order the said de- 
 fendant to be committed therefor to the Common 
 Gaol of the County of for the period of 
 
 days. 
 
 Dated, etc. 
 
 Judge. 
 
 ■■ ■;'. 
 
 
he case 
 of any 
 f instal- 
 the de- 
 le same 
 as the 
 i Judg- 
 aid de- 
 )mmon 
 riod of 
 
 Judge.